Protecting Public Health and the Environment.

Water Quality: Docket No. 58-0102-1701 - Negotiated Rulemaking

Rulemaking initiated to update selenium criteria for aquatic life.

Meetings | Public Comment Opportunities | Documents

Status of Rulemaking

Comment deadline August 1, 2017. No additional meetings are scheduled.

Rulemaking Documents Required by Idaho Administrative Procedure Act

Overview

This negotiated rulemaking has been initiated to update the selenium criteria for aquatic life use. This proposed update is identified as a Reasonable and Prudent Alternative (RPA) in the National Oceanic and Atmospheric Administration’s (NOAA) biological opinion (BiOp) on Idaho’s criteria for toxic substances to support aquatic life. This BiOp concluded that the current selenium criterion was likely to adversely affect endangered species and would result in adverse modification of critical habitat. The NOAA recommendation is to use EPA’s 2016 304(a) selenium criterion based on fish-tissue concentrations. NOAA has called for state adoption and EPA approval or EPA promulgation of this criterion by May 2018. In order to avoid EPA promulgating a federal selenium standard for Idaho, DEQ proposes to undertake a negotiated rulemaking for a revised selenium aquatic life criterion in Idaho’s water quality standards. DEQ’s 2014 triennial review identified revision of the aquatic life criteria for selenium as a medium priority.

Although selenium may cause acute toxicity at high concentrations, the most detrimental effect on aquatic organisms is due to its bioaccumulative properties. Aquatic organisms exposed to selenium accumulate it primarily through their diets and not directly through water. In fish, selenium toxicity occurs primarily through transfer to the eggs, reducing reproductive success and survival. Current criteria derived from water column concentrations do not take into account the effects of selenium bioaccumulation in aquatic systems and are generally under-protective of aquatic life. The proposed criterion is derived from the allowable concentration of selenium in fish-tissue found to be protective of aquatic life. The fish-tissue concentration, in conjunction with site-specific bioaccumulation factors, can be used to determine the allowable concentration of selenium in ambient water. Aquatic communities are expected to be protected by this chronic criterion from any potential acute effects of selenium. By adopting the fish-tissue derived criterion, DEQ will ensure that its criterion neither unnecessarily burdens dischargers nor increases risk to aquatic life.

A site specific criterion (SSC) petition was filed with DEQ by J.R. Simplot Company for Sage and Crow Creeks. Due to EPA’s 2016 304(a) recommended selenium criterion, a revision of this SSC petition is expected later this year.

The text of the rule will be drafted by DEQ in conjunction with a negotiating committee made up of persons having an interest in the development of this rule. In short, this rule will replace the existing water column based criteria for selenium with a four part criterion. The recommended elements are: (1) a fish egg-ovary element; (2) a fish whole-body and/or muscle element; (3) a water column element (one value for lentic and one value for lotic aquatic systems); and (4) a water column intermittent element to account for potential chronic effects from short-term exposures (one value for lentic and one value for lotic aquatic systems). Site specific criteria for Sage and Crow Creeks in southeast Idaho will also be considered for development.

Idahoans that recreate in, drink from, or fish Idaho’s surface waters and all who discharge pollutants to those same waters may be interested in participating in this rulemaking.

Upon conclusion of negotiations, DEQ intends to publish a proposed rule for public comment in the summer of 2017 and then present the final proposal to the Idaho Board of Environmental Quality (Board) in the fall of 2017 for adoption of a pending rule.  If adopted by the Board, the rule will be reviewed by the 2018 Idaho Legislature.

Effective for Clean Water Act Purposes

Water quality standards adopted and submitted to EPA since May 30, 2000 are not effective for federal Clean Water Act (CWA) purposes until EPA approves them (see 40 CFR 131.21). This is known as the Alaska Rule.  This rulemaking will be promulgated so that the existing rule, which continues to be effective for CWA purposes, remains in the Idaho Administrative Code until EPA approves the rule revisions.  Notations explaining the effectiveness of the rule sections are also included.  Upon EPA approval of the rule revisions, the old rule sections and notations will be deleted from the Idaho Administrative Code. Information regarding the status of EPA review will be posted here.

Method of Participation/Negotiated Rulemaking

Those interested in participating in the negotiated rulemaking process are encouraged to attend the meeting at one of the following locations.  Additional meetings will be scheduled if necessary. The public may participate by telephone and web conferencing at any of the meeting locations or with individual connections. Individuals interested in participating by telephone and web conferencing should contact Paula Wilson by the date provided in the table below. For those who cannot participate by attending the meeting, written comments may be submitted to Paula Wilson by email or fax to (208) 373-0481.

Negotiated Rulemaking Meeting Schedule

No additional meetings are scheduled.

Previous Meetings

July 25, 2017 - Agenda | Sign-in Sheets
June 13, 2017 -
Agenda| Sign-in Sheets
April 27, 2017
- Agenda| Sign-in Sheets

Public Comment Opportunities

Submit all written comments by mail, fax or e-mail to:

Paula Wilson
Idaho Department of Environmental Quality
1410 N. Hilton, Boise, ID 83706
Fax: (208) 373-0481, paula.wilson@deq.idaho.gov

Draft Negotiated Rule and Related Documents

Draft Negotiated Rule Date Posted Date of Meeting Discussion Written Comment Deadline

Draft No. 3

Aquatic Life Criterion for Selenium Negotiated Rulemaking – DEQ PowerPoint Presentation (July 2017)

07/21/17

 

07/25/17

07/25/17 08/01/17

Draft No. 2

Aquatic Life Ambient Water Quality Criterion for Selenium – Freshwater, EPA-822-R-16-006, Appendix K: Translation of a Selenium Fish Tissue Criterion Element to a Site-Specific Water Column Value (June 2016)

Aquatic Life Criterion for Selenium Negotiated Rulemaking – DEQ PowerPoint Presentation (June 2017)

 06/09/17

 

 

 

 

 

 

 

06/14/17

06/13/17 06/23/17

Preliminary Draft (Draft No. 1)

Aquatic Life Criterion for Selenium: Preliminary Draft Negotiated Rule – DEQ PowerPoint Presentation (April 2017)

 03/27/17

 

04/27/17

04/27/17

 05/05/17

Written Public Comments

Comment Submitted by Date Received
Comment on Draft No. 3 U.S Fish and Wildlife Service, Eastern Idaho Field Office 07/31/17
Comment on Draft No. 3 J.R. Simplot Company 08/01/17
Comment on Draft No. 3 Wyoming Department of Environmental Quality 08/01/17
Comment on Draft No. 3 National Marine Fisheries Service (NMFS) 08/02/17
Comment on Draft No. 2 EPA Region 10 07/19/17
Comment on Draft No. 2 Idaho Mining Association (IMA) 06/23/17
Comment on Draft No. 2 Idaho Conservation League (ICL) 06/23/17
Comment on Draft No. 2 J.R. Simplot Company 06/26/17
Comment on Draft No. 1 Bureau of Land Management (BLM) 05/02/17 
Comment on Draft No. 1 J.R. Simplot Company 05/05/17 
Comment on Draft No. 1 Nu-West Industries, Inc. 05/05/17 
Comment on Draft No. 1 Idaho Conservation League (ICL) 05/05/17 
Comment on Draft No. 1 EPA Region 10 06/06/17

Public Comment Period on Proposals for Site-Specific Selenium Criteria

Proposals for Site-Specific Criteria Date Posted Date of Meeting Discussion Written Comment Deadline

Nu-West Industries, Inc.

Nu-West Industries, Inc. Proposal for Site-Specific Selenium Criteria: Upper Blackfoot River and Georgetown Creek Watersheds, July 2017

Nu-West Industries’ Proposal for Site-Specific Selenium Criteria has been revised in response to input received from various stakeholders participating in the negotiated rulemaking process. This updated July 2017 version replaces the June 2017 version that was posted on June 23, 2017.

Revised Nu-West Proposal for Site-Specific Selenium Criteria - PowerPoint Presentation, July 2017

 07/21/17

 

 

 

 

 

 

 

 

 

 

 

07/25/17

07/25/17 08/01/17

Nu-West Industries, Inc. Proposal for Site-Specific Selenium Criteria:  Upper Blackfoot River and Georgetown Creek Watersheds, June 2017

Nu-West Industries’ Proposal for Site-Specific Selenium Criteria has been revised to incorporate brown trout in Georgetown Creek. The key revisions are found in Table 2 on page 4 (listing brown trout as resident in Georgetown Creek) and Table 3 on page 5 (listing the brown trout specific egg/ovary value for Georgetown Creek). This updated June 2017 version replaces the April 2017 version that was posted on April 27, 2017.

06/23/17    06/23/17

Nu-West Industries, Inc. Proposal for Site-Specific Selenium Criteria:  Upper Blackfoot River and Georgetown Creek Watersheds, April 2017

Nu-West Proposal for Site-Specific Selenium Criteria -PowerPoint Presentation, June 2017

04/27/17

 

 

 

 

06/14/17 

 06/13/17  06/23/17

J.R. Simplot Company

Comments on Proposal for a Site-Specific Selenium Criterion in SE Idaho: Smoky Canyon Mine, Caribou County, Idaho – J.R. Simplot Company PowerPoint Presentation, July 2017

07/25/17

07/25/17

08/01/17

J.R. Simplot Company Draft Proposal for Site-Specific Selenium Criterion for Hoopes Spring, Sage Creek, and Crow Creek near the  Smoky Canyon Mine,  April 2017

J.R. Simplot Company Proposal for a Site-Specific Selenium Criterion in Southeast Idaho: Smoky Canyon Mine, Caribou County, Idaho - PowerPoint Presentation, June 2017

 04/27/17

 

 

 

 

 

 

06/14/17

06/13/17

 06/23/17

Written Public Comments

Submitted by Date Received
J.R. Simplot Company 08/01/17
Wyoming Department of Environmental Quality 08/01/17
 EPA Region 10 07/19/17

Documents Distributed for Negotiated Rulemaking

Meeting Presentations and Miscellaneous Documents Date Posted
Rulemaking Schedule 03/27/17

 


Page Subscription

Staff Contacts

Water Quality Standards Scientist
Stephanie Jenkins
DEQ State Office
1410 N. Hilton
Boise, ID 83706
(208) 373-0407
stephanie.jenkins@deq.idaho.gov