Idaho Water and Natural Resources Legislation Review: 2016
Written by Norman M. Semanko and Sarah A. McCormack
Published by The Advocate, June/July 2016
By the time the Idaho Legislature adjourned sine die at 12:09 p.m. on March 25, 2016, it had adopted several pieces of legislation in the environmental and natural resources arena. The most significant of these are discussed below, along with several of the administrative rules reviewed by the Legislature. Complete copies of the legislation reviewed here, as well as other bills that were considered, but not approved during the 2016 Legislative Session, are accessible on the Idaho State Legislature’s website at http:// www.legislature.idaho.gov.
Water quality legislation
The Legislature adopted three pieces of legislation and a rule designed to facilitate delegation of the National Pollutant Discharge Elimination System (NPDES) permit program from the U.S. Environmental Protection Agency (EPA) to the State of Idaho. With these important pieces of legislation and the rule in place, DEQ expects to be able to meet the Legislature’s September 1, 2016 deadline for submission of the State’s NPDES delegation application to EPA.
First, 51238 authorizes the inspection and copying of certain water quality records, to make Idaho Code Sec. 74-114 consistent with the requirements of the Clean Water Act and existing federal regulations. This piece of legislation ensures access to local water quality records and protects trade secrets of the federal and state systems. 51238 was enacted into law and amended Idaho Code Section 74-114.
Second, 51239 provides a mechanism for public notice and an opportunity to comment on proposed decisions by the Idaho Department of Environmental Quality (DEQ), as well as a process to appeal final decisions to an independent hearing officer appointed by the Board of Environmental Quality. The legislation also provides for judicial review. This is necessary for Idaho to submit an application to the Environmental Protection Agency (EPA) requesting authorization to implement a state National Pollutant Discharge Elimination System (NPDES) program. This piece of legislation was enacted into law as a new section in Chapter 1, Title 39, Idaho Code, designated as Section 39-175D, Idaho Code.
Third, 51260 clarifies the authorities and duties of the Idaho Department of Agriculture regarding dairy farms and beef cattle feeding operations. These duties are to be carried out in a cooperative manner with DEQ, as part of an overall NPDES permit program at the state level. This piece of legislation was enacted into law and amended Idaho Code Section 22-4902.
Finally, the Legislature adopted the Idaho Pollutant Discharge Elimination System (IPDES) rule that was proposed by DEQ and the Board of Environmental Quality. This rule is of key importance to the package of items required for EPA to consider Idaho’s request for delegation of the NPDES program. The rule includes a proposed fee structure to be implemented once the IPDES program is approved by EPA and implemented by DEQ and ensures DEQ has the authorities required by EPA for IP-DES regulation of dairy and beef cattle operations.
Also of note, DEQ-sponsored legislation (S1237) was approved to revise Idaho Code Section 39-3609 by updating the process for prioritizing water bodies that are designated as water quality limited. The adoption of this legislation requires development and implementation of a Total Maximum Daily Load (TMDL) under the Clean Water Act. DEQ requested that the prioritization process take into account “the availability and quality of data, department resources, and whether the severity of pollution” poses a “significant risk” (high priority), “risk” (medium priority), or “minimal risk” (low priority) “to designated or existing beneficial uses’: The purpose of this legislation is to make Idaho Code consistent with federal law.
Finally, the Legislature favorably considered the “Fish Consumption Rule’: This rule updated Idaho’s human health water quality criteria. DEQ proposed the rule after evaluating local and regional fish consumption information and conducting lengthy negotiated rulemaking.’ The rule observes: “EPA guidance allows states to choose from a range of 10-4 to 10-6 for the incremental increase in cancer risk used in human health criteria calculation. Idaho has chosen to base this criterion on carcinogenicity of 10-5 risky’ The Fish Consumption Rule is subject to review and approval, or disapproval, by EPA, as well as potential litigation.
Water management and regulation
The Legislature approved three concurrent resolutions dealing with water management in Idaho. Concurrent resolutions require approval by both the house and senate, but do not enact or amend statutes and therefore do not require the governor’s signature. They are typically adopted to regulate the internal affairs of the legislature that adopted them, or for other purposes where authority of law is not necessary. In large part, these three resolution stem from the historic settlement agreement reached between certain senior surface water right holders and ground water management districts regarding delivery calls on the Eastern Snake Plain Aquifer (ESPA).
First, SCR 136 revised the state’s target for managed recharge from 100,000 acre-feet per year to 250,000 acre-feet per year. The managed recharge program is managed by the Idaho Water Resource Board. The higher level of recharge is a key component of the settlement agreement between the surface and ground water users.
Second, SCR 137 calls for enhanced ground water management efforts across the state, through what are referred to as “statewide aquifer stabilization and sustainability projects;’ to include managed recharge. The goal of the resolution is to provide adequate water supplies for current and future uses, and to help resolve or avoid water delivery calls.
Third, SCR 138 provides the state’s support for the settlement agreement.
As a companion to these three resolutions, the Legislature approved a plan for adequately funding the aquifer stabilization and recharge activities. These appropriations were contained in 51402, the funding bill for IDWR and the Idaho Water Resource Board.
The Legislature approved H595 to update the law regarding Ground Water Management Areas(I.C. 42-233b), which contained an antiquated and unrealistic deadline for IDWR to issue curtailment orders. The legislation further clarified that ground water users operating under an approved mitigation plan are not subject to curtailment orders. Because the Ground Water Management Area statute may become an administrative tool for implementing the settlement agreement discussed above, an update was necessary.
Also of note is H351, in which the Legislation modified the definition of a “dam” for purposes of requiring safety inspections and submitting design plans to IDWR. Under the new definition, IDWR will regulate any artificial barrier that is 10 feet in height and impounds at least 50 acre-feet of water. H351 also provided for the regulation of any facility that is deemed to “pose a threat of direct loss of life or significant property damage;’ regardless of its size.
Toward statewide aquifer stabilization
The settlement agreement requires ground water users on the ESPA to reduce their total consumptive use by 240,000 acre-feet per year. The ground water users are also required to deliver 50,000 acre-feet per year of storage water to the senior surface water right holders. The agreement also calls for the state to conduct an average of 250,000 acre-feet per year of managed recharge. The agreement calls for periodic check-ins on the condition of the ESPA, along with adaptive management as necessary to help the aquifer and spring flows meet the desired levels. In exchange for these efforts, the participating ground water users are granted safe harbor from future delivery calls and any curtailment orders by the Idaho Department of Water Resources (IDWR).
Oil and gas permits
51339 streamlined the permitting process to address concerns that the process was taking over a year in Idaho, while permits were being considered in 60 days or less in other states. The legislation shifted the initial responsibility for application process and approval from the Oil and Gas Commission (OGC) to the Idaho Department of Lands (IDL), and provided very specific timelines for agency action on permit applications. Appeals of IDL decisions now go to the Oil and Gas Commission, followed by an opportunity for judicial review. Any attorney practicing in the oil and gas area will want to become familiar with these lengthy and detailed statutory changes. This piece of legislation was enacted into law and amended Idaho Code Section 47-317.
H499 designated the Idaho State Department of Agriculture as the state authority for food regulation and inspections, including those required by the federal Food and Drug Administration, under the authority of the Food Safety Modernization Act.2
H531 enacted a new statute (Idaho Code Sec. 18-7043) to address breaches of biosecurity on agricultural facilities or operations, including the actual or attempted “release or spread of any type of contagious, communicable or infectious disease or poison” The legislation designates any violation as a misdemeanor and includes fines and penalties.
- IDAPA 58.0102.1201, Subsection 210.01.c, table footnote I. “When using toxicity thresholds to derive water quality criteria to protect human health, a fish consumption rate representative of the population to be protected, a mean adult body weight, and adult 90th percentile water ingestion rate, a trophic level weighted BAF or BCF, and a hazard quotient of one (1) for non-carcinogens or a cancer risk level of 10 -5 for carcinogens shall be utilized” Id., Subsection 210.05.b.ii.
Norman M. Semanko was elected as a Partner with the Idaho law firm, Moffatt Thomas, in 2017. Prior to that he served as Of Counsel Attorney with the firm, and he also served as the Executive Director and General Counsel to the Idaho Water Users Association. Mr. Semanko leads the firm’s Water/Environment/Natural Resources practice group. His extensive experience in water resources issues and his working relationships with members of local, state, and federal government and regulatory agencies further bolsters Moffatt Thomas’s expertise in agricultural law, water rights, environmental law, land use, mining, and public lands. He has advised members of the Idaho State Legislature on water-related legislation for the past 20 years.