Antidegradation Implementation Procedures

HB153 58-0101-1002

Clean Water Act Framework

• Roles:– State development of WQS

• Proposal for Rulemaking• Negotiated Rulemaking

– EPA Approves• Must meet minimum requirements of CWA

– Protect Designated Uses: Appropriate Uses– Criteria to protect uses: Numeric/Narrative– Antidegradation Policy and Implementation Policy

• If EPA disapproves or state fails to adopt– EPA may promulgate for the state

Origin of antidegradation in CWA

• CWA Objective is to restore and maintain the chemical, physical and biological integrity of the nations waters.– 303(d)/305(b) Reports– TMDL

• Antidegradation policy/implementation– Meant to ensure WQ is maintained

Antidegradation Requirements in CFR

• Must have an antideg policy and implementation methods

• Policy –Idaho has the policy, identical to the federal requirement– both regulations and statute

Policy sets 3 tiers of WQ protection

• Tier 1 – botom level: waters at or below criteria.– At least protect that level of WQ necessary to

protect uses• Meet criteria to protect uses• Applies to all state waters

• Tier 2—High quality waters: WQ better than necessary to support uses.– Better than criteria– May still allow degradation but some process:

• Through public process– Necessary to accommodate importan social or economic

development in the area in which the waters are located.

– Assure controls for other point and nonpoint sources are achieved—those limitations set by CWA for point sources; BMPs described in WQS for nonpoint sources.

• Tier 3—Outstanding Resource Waters– Exceptional national resource:

• High water quality• Exceptional recreational/ecological significance

– WQ in ORWs can not be lowered.– ORWs in Idaho are designated by the

legislature…There are no Outstanding Resource Waters designated in Idaho.

Antidegradation Implementation Procedures

• Required by Federal Regulations

• Idaho has not fully met this requirement– Do have a process for designating ORWs– Do have provisions addressing how to

ensure, at least for NPS, water quality is NOT degraded.

Vulnerability Detected• NOI sent by ICL in September 2009 to

EPA identifying EPA has a mandatory duty to promulgate antideg implementation procedures because Idaho has failed to do so.

• Lawsuit filed April 2010– DEQ started negotiated rulemaking to

develop antideg implementation procedures in the WQS

• Lawsuit has been stayed pending outcome of rule: 6 rulemaking meetings produced a rule adopted by DEQ board Nov 2010.

Legislature rejected parts of the rule

• And approved the remainder; also adopted legislation that amended Idaho Code to address antideg.

• New sections correspond to those sections of the rule rejected

• Ruled adopted by DEQ and approved by Legislature. DEQ believes the rule:

meets CWA requirements; will be approved by EPA; and will withstand a court challenge.

Included in the Rule

• How the state will categorize the waters of the state into 3 tiers—by a waterbody approach—looking at overall water quality– Could categorize on pollutant basis

• Since tier 1 applies to all waterbodies, this is really about identifying tier 2 high quality waters

Use of the Integrated Report

• IR category 5 (303(d) list tier 1 (with exceptions))

• Category 2 (full support) tier 2

• Can split uses: tier 1 for one use/tier 2 for other use– Certain pollutants—DO, pH, and temperature,

even if on 303(d) list for aquatic life, can elevate to tier 2 if biology tells us uses are supported.

Activities to which antideg applies

• Those activities that require a federal permit and discharge to waters within the jurisdiction of the CWA– NPDES permits– 404 permits– FERC licenses

How the state will determine when degradation of high quality water will occur

• Compare permit limits; new permit allowance and effect to WQ in receiving WB

• How to determine important social or economic development that justifies degradation of high quality waters– Is degradation necessary to developmnent that justifies

degradation of high quality waters– Are there reasonable alternatives and is it necessary to

important social or economic development

List of factors to review

• Includes provision that allows insignificant discharges to occur without the tier 2 analysis.– If discharge will not cumulatively decrease

assimilative capacity by more than 10%, it is determined to be insignificant.

Adopted Rule before EPA

• EPA has 60 days to approve; 90 days to disapprove

• ICL publically has made it known that it will challenge the rule if approved by EPA

ICL issues

• Determining degradation based on limits in permit rather than existing discharge levels if permittee is discharging at levels less than limits. ICL believes should use existing discharge levels.

• Waterbody by waterbody approach vs. pollutant by pollutant approach: ICL believes p by p is only approach allowed by CWA

Why this is important

• Without these procedures in place, EPA takes the position it will not issue any permit in ID that allows degradation in a High quality water.

• Most important for new or increased dischargers to high quality waters.– Either no degradation or must make showing

that degradation is justified

• Done, or Not Done?

Proposed Rule: Point Source Wastewater Treatment Requirements

401. POINT SOURCE WASTEWATER TREATMENT REQUIREMENTS.

•Unless more stringent limitations are necessary to meet the applicable requirements of Sections 200 through 300, or unless specific exemptions are made pursuant to Subsection 080.02, wastewaters discharged into surface waters of the state must have the following characteristics:

•01. Temperature. The wastewater must not affect the receiving water outside the mixing zone so thata. The temperature of the receiving water or of downstream waters will interfere with designated beneficial uses.

•b. Daily and seasonal temperature cycles characteristic of the water body are not maintained. (7-1-93)

•c. If the water is designated for warm water aquatic life, the induced variation is If the water is designated for warm water aquatic life, the induced variation is more than plus two (+2) degrees C. more than plus two (+2) degrees C.

•d. If the water is designated for cold water aquatic life, seasonal cold water d. If the water is designated for cold water aquatic life, seasonal cold water aquatic life, or salmonid spawning, the induced variation is more than plus one aquatic life, or salmonid spawning, the induced variation is more than plus one (+1) degree C. (+1) degree C.

• ec. If temperature criteria for the designated aquatic life use are exceeded in the receiving waters upstream of the discharge due to natural background conditions, then Subsections

• 401.01.c. and 401.01.d. do not apply and instead wastewater must not raise the receiving water temperatures by more than three tenths (0.3) degrees C. (4-11-06)(6-30-11)T

• 02. Turbidity. The wastewater must not increase the turbidity of the receiving water outside the mixing zone by: (7-1-93)

a. More than five (5) NTU (Nephelometric Turbidity Units) over background turbidity, when background turbidity is fifty (50) NTU or less; or (7-1-93)

b. More than ten percent (10%) increase in turbidity when background turbidity is more than fifty(50) NTU, not to exceed a maximum increase of twenty-five (25) NTU. (7-1-93)

• 03. Total Chlorine Residual. The wastewater must not affect the receiving water outside the mixing zone so that its total chlorine residual concentration exceeds eleven one-thousandths (0.011) mg/l. (1-1-89)