Protecting Public Health and the Environment.

Idaho Pollutant Elimination System: Docket No. 58-0125-1801 Pending Rule

Rulemaking initiated to correct inconsistencies relating to administrative provisions and incorporation by reference of federal regulations.

Public Comment Opportunities

Status of Rulemaking

Pending rule adopted by Board on November 14, 2018.  Final and effective upon adjournment of 2019 legislative session if approved by the Idaho Legislature.

2019 Legislative Rules Review

Effective Date

May 18, 2018 (temporary rule)

November 2018 Board of Environmental Quality Meeting
May 2018 Board of Environmental Quality Meeting

Rulemaking Documents Required by Idaho Administrative Procedure Act


This rulemaking has been initiated to correct inconsistencies relating to administrative provisions and incorporation by reference of federal regulations.

Revise Section 003, Incorporation by Reference of Federal Regulations, for consistency with Subsection 370.05, Pretreatment Standards, Exceptions to Incorporation by Reference: In 2017, DEQ initiated negotiated rulemaking to make revisions to ensure that the IPDES Rules remain consistent with federal regulations (Docket No. 58-0125-1701). Negotiated rulemaking meetings were held and negotiated rule drafts were made available for public review. During the negotiated rulemaking process, 40 CFR 403.10 (Development and Submission of NPDES State Pretreatment Programs) was added to the list of federal regulations incorporated by reference in Subsection 003.02.y. and deleted from the list of exceptions to incorporation by reference in Subsection 370.05.

Upon conclusion of negotiated rulemaking, DEQ formatted the final negotiated rule draft for publication as a proposed rule in the August 2017 Idaho Administrative Bulletin. In November 2017, the proposed rule was adopted by the Idaho Board of Environmental Quality as a pending rule. In January 2018, the pending rule was submitted to the Idaho Legislature for review and approval as a final rule. During review of the pending rule, DEQ discovered that the addition of 40 CFR 403.10 in Subsection 003.02.y. was unintentionally omitted due to a transcription error in the August 2017 Idaho Administrative Bulletin proposed rule publication. The error resulted in a discrepancy between Subsection 003.02.y. and Subsection 370.05. This temporary/proposed rule corrects the discrepancy.

Revise Section 004, Administrative Provisions, for consistency with Section 204, Appeals Process: When the IPDES Rules were promulgated as a new rule chapter in 2016 (Docket No. 58-0125-1401), Section 004, Administrative Provisions, and Section 204, Appeals Process, were both included. As in all DEQ rule chapters, Section 004 was included to meet the uniform format requirements of the Rules of the Administrative Rules Coordinator, IDAPA 44.01.01. The other DEQ rule chapters include an administrative provision section similar to Section 004, with the Rules of Administrative Procedure Before the Board of Environmental Quality, IDAPA 58.01.23, being cited as the rules governing the appeals process. In the case of the IPDES Rules, the rules governing the appeals process are provided within the IPDES Rules at Section 204. This temporary/proposed rule revises Section 004 to clarify that Section 204 governs the IPDES permit appeals process.

Temporary Rule Justification: This rule docket corrects inconsistencies within the IPDES Rules. The inconsistencies relate to administrative provisions and incorporation by reference of federal regulations. Adoption of this temporary rule is necessary to ensure that the inconsistencies in the rules regulating the IPDES program are resolved before the state of Idaho receives authority for NPDES permitting on July 1, 2018.  Pursuant to Section 67-5226(1)(c), Idaho Code, the Governor has found that temporary adoption is appropriate in that the rulemaking confers a benefit. Temporary adoption of this rule confers a benefit to the public and regulated community by eliminating any confusion the inconsistencies may cause. If the Board adopts the temporary rule, DEQ will publish the temporary rule and initiate proposed rulemaking in the June 2018 Idaho Administrative Bulletin.

Negotiated Rulemaking

Negotiated rulemaking was not conducted. DEQ determined that negotiated rulemaking is not feasible due to the simple nature of this rulemaking. The proposed revisions correct inconsistencies and provide clarity.

Public Comment Opportunities

Submit all written comments by mail, fax or email to:

Paula Wilson
Idaho Department of Environmental Quality
1410 N. Hilton, Boise, ID 83706
Fax: (208) 373-0481,

Comment Deadline

July 6, 2018

Written Public Comments on Temporary/Proposed Rule

Submitted By Date Received
No comments were received  

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Staff Contacts

IPDES Program Manager
Mary Anne Nelson
DEQ State Office
Water Quality Division
1410 N. Hilton
Boise, ID 83706
(208) 373-0291

Administrative Rules Coordinator
Paula Wilson
DEQ State Office
Attorney General's Office
1410 N. Hilton
Boise, ID 83706
(208) 373-0418

Related Pages

Idaho Pollutant Discharge Elimination System Program