Changes to the anti-deg rule raise concerns about the public process among HEET committee democrats

In January, the House Environment, Energy and Technology Committee was given a heads up from the Idaho Department of Environmental Quality (DEQ) that a rule change was coming regarding water quality anti-degradation. The rule, and pending legislation would together address requirements of the Clean Water Act that Idaho have an anti-degradation implementation plan as well as the water quality standards already in place. The fact that such an implementation plan does not exists in Idaho is the subject of a lawsuit brought by the Idaho Conservation League, which touched off a flurry of negotiated rule making last summer.

Barry Brunelle representing Idaho DEQ, outlined changes to the originally proposed rule that he said would both pass muster with the EPA and strike language that gave industry cause for concern about stringency. Legislation in the form of HB153 would provide a subsequent mechanism to make connections to the rule and statute by accommodating some areas in the rule that were deleted.

The proposed changes to the rule address:
- Definition of degradation or “lower quality” water
- General permits
- Identification of Tier 2 water limits
- What constitutes significant versus insignificant discharges

Democrat committee members questioned the logic behind adopting a rule prior to hearing about the legislation designed to shore up the rule. They also questioned the rulemaking process. Was there adequate public input? Brunelle responded that between 60 and 80 people participated in the rulemaking sessions.

“I’m not sure how we can vote to reject portions of the rule without understanding what we’re
going to replace it with,” Representative Brian Cronin noted.

Chairman Raybould, IACI and DEQ representatives explained that HB 153, which would be considered by this committee pending the outcome of this rule change, was put together to accommodate areas in the rule that were being deleted. The deletions were from the proposed additions brought about in the rule making process this summer. They don't constitute new rule making, Raybould noted, but a process whereby DEQ and IACI agreed upon changes in the rule that each could live with.

Alan Prouty, speaking on behalf of the IACI environmental committee, noted that the deleted sections represented major actions to those in the “permitting world,” that caused anxiety.

Representative Jaquet proposed a substitute motion to hold the rule, noting that as a member of the committee she had not been consulted about the proposed changes and how they came about.

“I don’t think it’s appropriate when you have negotiated rule making and someone goes through making changes and I think we should hold this rule until people feel comfortable,” she said.

Representative Schaefer asked about the possibility of creating a temporary rule. But Raybould noted the urgency created by ICL's lawsuit and the need to have an anti-degradation plan in place. Without this rule and a companion bill, he said, there is a risk that permits written in the interim would be more stringent than necessary, creating a hardship on those seeking permits.

Jaquet’s motion to hold the original motion failed, and the original motion to approve the water quality standards rule passed, with dissent from all three Democrats on the committee.

Chairman Raybould then presented his companion bill, HB 153 to address the rule changes.

Prouty, representing IACI and the regulated community, outlined the key properties of the bill:
- It maintains consistency with the Federal CWA, in reference to navigable waters of the US
- It defines “degradation” or “lower water quality,” providing replacement language for that which was stricken in the rule
- It provides language about how general permits are defined , clarifying how general permits are evaluated by the department for meeting anti-degradation requirements
- It identifies Tier 2 or high quality water, recognizing that there are certain water bodies that may not meet the definition of high quality water for isolated reasons but otherwise might meet that standard
- It replaces language for what was rejected in the rule regarding significant versus insignificant discharge

Brunelle noted that there were three specific policy areas this bill addresses:

- Where classification of the waters is being looked at with respect to what pollutant for which it was listed, it gives leeway to the department to move a water body from a Tier I to a Tier II definition, in recognition that there may be one element that is off, but that the body has a robust ecology
- It addresses special resource waters
- It includes language defining insignificant discharges. The rule deletes this part. The assumption is that the assimilative capacity could be split up between discharges. This rule would allow the current discharger to be deemed as an insignificant discharger, while future sources of discharges would not.

ICL’s Justin Hayes noted that while the DEQ feels the rule and this bill would pass muster with the EPA, should they be approved, the ICL will challenge them. Referring back to the rule changes that had recently been passed, he noted that they erode the potential that the rule will be approved.

“I think that the rule was very delicately balanced and may have been approved, but with this legislation, it won’t. By passing it you are placing permit seekers at peril,” he said.