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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.

Agricultural activities

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.

Endnotes

  1. 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.