Anti-degradation rule considered by House Committee

Last week, the DEQ presented the draft rule for an anti-degradation implementation plan to the Senate Resources and Conservation Committee. This week, it was the House Committee on Energy, Environment and Technology’s turn to hear from the DEQ on developing an anti-degradation implementation plan. Idaho has water quality standards which were developed in the late 1980s but this policy did not lay out a specific implementation plan for its anti-degradation policy. This lack is the subject of a lawsuit which has been held pending legislative action. If the state does not implement an anti-degradation plan, the EPA most likely will.

Anti-degradation relates to the maintenance of water quality as outlined in the Clean Water Act (CWA). Under the proposed rule, if a new or increased discharge into a water body is planned, state regulators must do an anti-deg review. A projected “significant” increase in the discharge in the existing permit generates a Tier II analysis. Court cases have fleshed out interpretations of federal requirements of what activities necessitate a full Tier II analysis, so the DEQ’s proposed rule has taken into account these court determinations, such as “insignificant” versus “significant” discharge. What is “significant” is defined as how much in discharges the water in question can accept (its “assimilative capacity cap”) without reducing quality below standards.

At the same time, general permits cover a wide range of activities and need some flexibility. DEQ representatives told the committee the language in their proposed rule reflects this need.

Questions from the committee focused on specific instances where discharge could impact water quality.

Representative Raybould asked about canals discharging tailwaters into rivers. These discharges are not subject to CWA permitting, so wouldn’t have to undergo this determination. Only those projects subject to a Federal permit would be considered.

Representative Harwood’s concern was for farmers. What about field runoff? This rule doesn’t change the agricultural exemption that exists in the CWA. But what if it’s the logging industry that’s in question? In Oregon, Harwood noted, loggers are going to have to get permits if they’re using a road where the sediments are running off into streams. EPA is considering a multi sector general permit that would cover industries such as timber, and the DEQ has already certified a multi-sector general permit.

Representative Hartgen asked about projects along a bank – would they require a permit? In these instances, permits are issued by the U.S; Army Corps of Engineers, and no further review is necessary.

Representative Jaquet asked about sewage treatment plants along a river. As long as the permit in question stays the same, no review is required. Where a city is growing, and therefore its utility discharges are expanding, there would be one required.

In the case of an NPDES permit, Representative Jaquet asked about a case like Clearwater Paper (formerly Potlatch), on the confluence of the Snake and Clearwater rivers in Lewiston. In a case like this, DEQ is asked to certify the project, examining the existing water quality, the designated uses of that water body, and identifying that standards wouldn’t be violated by the proposed activity. The company was certified in 2006. This rule would not change the water quality criteria at all, nor impose a more stringent requirement than exists. It does, however, identify methods for the anti-degradation review and analysis.

But, legislators asked, are we putting the cart before the horse, approving a rule when we need to make changes in the existing statute?

After DEQ representatives presented to the committee and stood for questions, Norm Semanko, Idaho Water Users Association, pointed out that while DEQ proposed a waterbody-by-waterbody review in the draft rule, DEQ staff was conducting a pollutant-by-pollutant anti-degradation review for its 401 certification for EPA’s proposed Pesticide General Permit. He also said that EPA’s general permit is still a draft and that DEQ has stated that probable changes to the final document are significant. Semanko also questioned why DEQ’s comment deadline on the Section 401 certification of January 31 when EPA’s final Pesticide General Permit probably won’t be published until February 14. Semanko also raised another issue with DEQ's anti-degradation review. It states that the requirements of EPA's draft Pesticide General Permit are "above and beyond" what is required under FIFRA, and that continued label use will ensure protection of high quality waters. DEQ's draft certification however, includes eight (8) additional conditions "above and beyond" even what EPA is proposing in the draft general permit.

Raybould noted that we have a date of February 4 to to review and act upon these rules. He was concerned about the legislation that needs to accompany this rule to co-ordinate the definitions in statue and rule. Can we accommodate this request? According to the Attorney General’s office, it’s not unusual to have both a change in a definition in the statute and a rule. Any legislation that we have to adjust these statutes would come up later in the session.

Let’s let the leadership know that we’re facing this, Raybould said..


Representative Nielsen moved that we hold this proposed rule until the call of the chair. The motion passed.