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Environmental Laws Affecting the Lower Boise River

What are The Clean Water Act, NPDES, and 303(d)?
What Does Idaho Water Quality Law Say?
303(d) Lawsuit in Idaho—Why TMDLs are Needed Now
What are Basin Advisory Groups?
How Do Watershed Advisory Groups Work?

What Are The Clean Water Act, NPDES, and 303(d)?

The Environmental Protection Agency (EPA) Office of Water administers the Clean Water Act, first enacted in October 1972. The Clean Water Act is the federal umbrella legislation that protects all types of water bodies, including rivers, lakes, aquifers, and coastal areas. The goal of the Clean Water Act is to improve the quality of the nation’s waters through the following mandates:

  • Requires major industries to meet performance standards to ensure pollution control.
  • Charges states and tribes with setting specific water quality criteria appropriate for their waters and developing pollution control programs to meet them.
  • Provides funding to states and communities to help them meet their clean water infrastructure needs.
  • Protects valuable wetlands and other aquatic habitats through a permitting process that ensures development and other activities are conducted in an environmentally sound manner.

Under the Clean Water Act, the EPA established the National Pollutant Discharge Elimination System (NPDES), which requires increasingly stringent technology-based restrictions on the discharge of pollutants from point sources. A point source is an identifiable source of discharge to a body of water, such as a major industry or a wastewater treatment plant. Therefore, these industries and municipalities are required by the federal government to submit their NPDES permits, which identify the quantity and type of pollutants entering the water.

By contrast, nonpoint sources are more difficult to identify, and EPA allowed the states to decide how nonpoint sources would be regulated. Nonpoint sources include urban stormwater runoff, sediment and nutrient influx from agricultural lands, and sources such as commercial agricultural drains that are not tributaries to the river system.

The combination of point and nonpoint pollution sources has resulted in failure to meet water quality standards. Section 303(d) of the Clean Water Act requires states to address both point and nonpoint sources by establishing Total Maximum Daily Loads (TMDLs) for waters that do not meet water quality goals.

What Does Idaho Water Quality Law Say?

The Idaho Water Quality Law is designated S.B. 1284 (IC §39:3601). Created in 1995 by the Idaho Legislature, the Water Quality Law is designed to be proactive and retain state control of the water quality limited TMDL process. Following are the six most critical elements of the legislation:

  • Defines three classes of water: 
    • water that fully supports beneficial uses
    • water that does not fully support beneficial uses>
    • outstanding resource waters
  • Establishes DEQ as the lead agency in water quality matters and TMDL development.
  • Recognizes the Beneficial Use Reconnaissance Project as the initial screening method in gathering/setting water quality conditions.
  • Creates a framework for development of Total Maximum Daily Loads, via input through local Watershed Advisory Groups.
  • Establishes a public involvement process at the basin level to help guide and manage water quality programs.
  • Sets up and describes the duties of the Basin and Watershed Advisory Groups

The EPA also passes water quality laws specific to Idaho. For example, on July 31, 1997, EPA issued a Final Rule establishing new standards for Idaho streams. The standards included temperature criteria for protecting bull trout in certain streams. It also designated that all streams currently without an assigned designated use to a "cold water biota" use.

303(d) Lawsuit in Idaho--Why TMDLs are Needed Now

The TMDL deadline for the lower Boise River watershed is driven by a series of courtroom decisions by Judge Dwyer. Following is a brief history of the 303(d) Lawsuit and Judge Dwyer Decisions:

Idaho DEQ submits a 305(b) report with accompanying 303(d) list to EPA. DEQ lists 31 water bodies as "water quality limited."
The Idaho Conservation League and Idaho Sportsmen’s Coalition, through the Sierra Club Legal Defense Fund, file suit against EPA over Idaho’s 1992 303(d) list. The case goes before Judge Dwyer in the 9th District court in Seattle. Plaintiffs state that the list is inadequate.
DEQ submits new 303(d) list to EPA as part of biannual 305(b) report. DEQ lists 62 water bodies as "water quality limited."
Judge rules for Plaintiffs, finds that DEQ and EPA were arbitrary and capricious in development of Idaho’s 1992 303(d) list. Gives EPA 60 days to draft a new 303(d) list for Idaho. He also requires a "process" for handling 303(d) segments be developed, along with a schedule. EPA identifies 962 water quality limited segments.
Idaho Legislature responds to suit and passes S.B. 1284 (IC §39:3601), which describes how Idaho will address the water quality limited segments on the 303(d) list.
DEQ submits a TMDL schedule to Judge Dwyer. Schedule commits Idaho to completing TMDLs for water quality limited streams within 25 years.
Judge Dwyer gives EPA and Idaho 6 months to draft another schedule specifying when TMDLs will be produced for each water quality limited segment on the list. Judge Dwyer further suggests that a 5 year time frame is not unreasonable for this schedule.

Currently, DEQ must prepare TMDLs for the lower Boise River by December 1998 for submission to EPA. TMDLs have been required for 20 years under the Clean Water Act, but EPA has only recently begun to enforce this part of the federal code.

What are Basin Advisory Groups?

Basin Advisory Groups (BAGs) are established by the Idaho Water Quality Law (Title 39-3613 and 39-3614). Each BAG has 10 members, who are appointed by the Governor and the DEQ Administrator. The BAG has the following responsibilities:

  • Recommend priorities for stream monitoring.
  • Recommend revisions to beneficial uses and water quality standards.
  • Assign water body priorities for TMDLs.
  • Review TMDLs.
  • Recommend Watershed Advisory Groups to the DEQ Administrator.
  • Recommend priorities for water quality programs based on economics.

How Do Watershed Advisory Groups Work?

Watershed Advisory Groups (WAGs) are organizations of stakeholders and interested parties in a particular watershed (Title 39-3615 and 39-3616). The organization applies to the BAG to become a state-designated WAG. The Lower Boise Watershed Council is a WAG. Following are the responsibilities of each WAG:

  • Advise DEQ on implementation of Total Maximum Daily Loads.
  • Recommend specific actions needed to control point and nonpoint source pollution in a watershed.
  • Work with DEQ to provide for needed public involvement.

The role of the WAG in the development of TMDLs expanded in 2005 with the passage of House Bill 145. Idaho Department of Environmental Quality (DEQ) prepared an excellent overview and fact sheet (PDF 180 KB) of these changes.