2005 Idaho Code - 39-3611 — DEVELOPMENT AND IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOAD OR EQUIVALENT PROCESSES

                                  TITLE  39
                              HEALTH AND SAFETY
                                  CHAPTER 36
                                WATER QUALITY
    39-3611.  DEVELOPMENT AND IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOAD OR
EQUIVALENT PROCESSES. (1) For water bodies described in section 39-3609, Idaho
Code, the director shall, in accordance with the priorities set forth in
section 39-3610, Idaho Code, and in accordance with sections 39-3614 through
39-3616, Idaho Code, and as required by the federal clean water act, prepare a
subbasin assessment and develop a total maximum daily load to allocate
pollutant loads to point source and nonpoint sources that discharge pollutants
to the water body.
    (2)  Upon the completion of a total maximum daily load, the director shall
publish notice of the final decision on the TMDL in the Idaho administrative
bulletin and provide written notice to members of the applicable watershed
advisory group. The director's final decision shall be based upon a record
that provides the basis for the total maximum daily load. The rulemaking
provisions in sections 67-5220 through 67-5231, Idaho Code, shall not apply to
TMDLs. The director's final decision regarding a TMDL may be appealed to the
board of environmental quality in accordance with section 39-107(5), Idaho
Code, and the rules governing such appeals. The time for appeal to the board
shall commence upon publication in the administrative bulletin. The board's
final decision is subject to judicial review under section 39-107(6), Idaho
Code. The provisions of this subsection shall apply to all total maximum daily
loads developed by the director after January 1, 1995. Provided however, that
the rulemaking provisions in sections 67-5220 through 67-5231, Idaho Code,
shall apply to TMDLs for metals in the Coeur d'Alene River Basin, upstream
from the head of the Spokane River. Provided further, that nothing herein
shall modify the requirement that water quality standards be promulgated as
rules of the department pursuant to title 67, chapter 52, Idaho Code.
    (3)  For water bodies where an applicable water quality standard has not
been attained due to impacts that occurred prior to 1972, no further
restrictions under a total maximum daily load process shall be placed on a
point source discharge unless the point source contribution of a pollutant
exceeds twenty-five percent (25%) of the total load for that pollutant.
Existing uses shall be maintained on all such water bodies.
    (4)  Subbasin assessments and total maximum daily load processes developed
pursuant to this section shall include, but not be limited to:
    (a)  Identification of pollutant(s) impacting the water body;
    (b)  An inventory of all point and nonpoint sources of the identified
    pollutant(s), if practical, or an analysis of the land types, land uses
    and geographical features within the watershed that may be contributing
    identified pollutants to the water body;
    (c)  An analysis of why current control strategies are not effective in
    assuring full support of designated beneficial uses;
    (d)  A plan to monitor and evaluate progress toward meeting water quality
    standards;
    (e)  Pollution control strategies for both point sources and nonpoint
    sources;
    (f)  Identification of the period of time necessary to achieve full
    support of designated beneficial uses through implementation of pollution
    control strategies, which takes into account any expected changes to
    applicable water quality standards; and
    (g)  An adequate margin of safety to account for uncertainty.
    (5)  Point source discharges for which a national pollutant discharge
elimination system permit is approved after January 1, 1995, shall be deemed
to have met the requirements of this section.
    (6)  No instream target for a pollutant shall be set as part of a TMDL
process unless the data and analysis in the subbasin assessment demonstrate
that the pollutant is causing or contributing to a violation of a water
quality standard in the stream for which the TMDL is being developed. If a
pollutant load is allocated to a tributary inflow as part of a downstream
TMDL, the director shall develop a plan to meet such allocation in
consultation with the tributary watershed advisory group as provided in
subsection (8) of this section.
    (7)  The director shall review and reevaluate each TMDL, supporting
subbasin assessment, implementation plan(s) and all available data
periodically at intervals of no greater than five (5) years. Such reviews
shall include the assessments required by section 39-3607, Idaho Code, and an
evaluation of the water quality criteria, instream targets, pollutant
allocations, assumptions and analyses upon which the TMDL and subbasin
assessment were based. If the members of the watershed advisory group, with
the concurrence of the basin advisory group, advise the director that the
water quality standards, the subbasin assessment, or the implementation
plan(s) are not attainable or are inappropriate based upon supporting data,
the director shall initiate the process or processes to determine whether to
make recommended modifications. The director shall report to the legislature
annually the results of such reviews.
    (8)  Each TMDL and any supporting subbasin assessment shall be developed
and periodically reviewed and modified in consultation with the watershed
advisory group for the watershed in which the water bodies are located.
Consultation shall include, but not be limited to:
    (a)  Upon request, providing the watershed advisory group with all
    available information in the possession of the department concerning
    applicable water quality standards, water quality data, monitoring,
    assessments, reports, procedures and schedules for developing and
    submitting the TMDL and any supporting subbasin assessment to the United
    States environmental protection agency;
    (b)  Utilizing the knowledge, expertise, experience and information of the
    watershed advisory group in assessing the status, attainability or
    appropriateness of water quality standards, and in developing a TMDL and
    any supporting subbasin assessment; and
    (c)  Providing the watershed advisory group with an adequate opportunity
    to participate in drafting the documents for the TMDL and any supporting
    subbasin assessment and to suggest changes to the documents.
    (9)  No TMDL shall be published for public comment or submitted for
approval to the United States environmental protection agency until
consultation, as herein provided, has occurred. If, after consultation, the
watershed advisory group disagrees with the TMDL or any supporting subbasin
assessment, or has determined that applicable water quality standards should
be reevaluated or revised, such position and the basis therefor shall be
documented in the public notice of availability to the TMDL and any supporting
subbasin assessment for review, and in any submission of the same to the
United States environmental protection agency. The director shall respond to
the points raised by the watershed advisory group and shall document the
response in the final decision.
    (10) Nothing in this section shall be interpreted as requiring best
management practices for agricultural nonpoint source activities which are not
adopted on a voluntary basis, nor shall this section be interpreted to relieve
any person from the responsibility to comply with the Idaho forest practices
act.