Report 14. Idaho Water Quality Policy for Nonpoint Source Pollution (Part 4)

Report No. 14
Idaho Water Quality Policy for Nonpoint Source Pollution: A Manual for Decision-Makers
Executive Summary
(Part 4)

2. How has federal court action affected Idaho?

The court's ruling in the Idaho TMDL litigation (ISC v. Browner, C93-943WD, Seattle, WA) motivated the Idaho Legislature in 1995 to pass Senate Bill 1284, which rewrote the portion of the Idaho Code ( 39-3601 et seq.) for CWA nonpoint source programs. The lawsuit also led to changes in monitoring and assessment programs.

Dissatisfied with the condition of some waters in Idaho and the pace of progress at controlling land-use activities from which nonpoint source pollution emanates, in 1993 the Idaho Sportsmen's Coalition and the Idaho Conservation League filed the Idaho TMDL lawsuit against the EPA in federal district court in Seattle. The plaintiff groups asked the court to require the EPA to do two things: [1] expand the list of waters in Idaho with impaired water quality, as required under section 303(d) of the CWA; and [2] develop total maximum daily loads (TMDLs) for the impaired waters, again as required by section 303(d). Similar litigation has been filed in 21 other states (L. Koenig, personal communication).

Judge William L. Dwyer ruled for the plaintiffs. In October 1994, the EPA expanded Idaho's "303(d) list" of water quality-limited waters from 36 to 962 to comply with the court's order. This includes approximately 10% of the stream and river miles in Idaho (USDA Forest Service 1996). The court has given the EPA until March 1997 to resubmit Idaho's schedule for developing TMDLs, strongly suggesting that five years was a more reasonable time frame than the 25 years that Idaho had proposed and the EPA had accepted.

The Idaho TMDL litigation has focused attention on the condition of waters in Idaho and increased the workload of the Idaho Division of Environmental Quality (DEQ), the state agency responsible for CWA activities. The DEQ is implementing a new standardized assessment procedure for determining beneficial use support called the Water Body Assessment Guidance (WBAG) (IDEQ 1996) and new water quality monitoring procedures called the Beneficial Use Reconnaissance Project (BURP) (IDEQ 1995a,b).

In 1997, the Idaho Legislature will be concerned with the level of resources for the DEQ to help the EPA conform to Judge Dwyer's ruling in the Idaho TMDL case. Idaho is currently proceeding with the development of TMDLs. If Idaho does not prepare TMDLs for the "303(d) list" of waters the EPA created under a court order in the Idaho TMDL case, the EPA would be required to do so under the CWA. At risk in such a default situation would be more than $1 million in federal grants made to Idaho each year for CWA nonpoint source programs that would likely be forfeited, and the possibility of court injunctions halting federal land and resource management activities until such time as TMDLs are completed.

3. What are the features of the new Idaho policy?

Watershed management is the key feature. New monitoring and assessment programs are also important. Watershed management is consistent with program efforts the EPA has been urging the states to undertake since 1991 (see Table 4).

An EPA official (Perciasepe 1995) stated that involving people in decisions affecting their use of resources is the key to making watershed protection work. Idaho's new law emphasizes locally based, rather than centralized, planning and program management. The DEQ cooperates with local interests in Basin Advisory Groups (BAGs) and Watershed Advisory Groups (WAGs) in identifying what actions are needed to restore and maintain water quality. Table 5 identifies the key features of a Watershed Advisory Group (WAG).

Monitoring is an essential component of an effective water quality program. Beginning in 1993, Idaho's Beneficial Use Reconnaissance Projects (BURPs) were implemented to help determine the level at which beneficial uses are being supported (IDEQ 1995a). Many, if not most, of Idaho's waters support aquatic life as a beneficial use, whether it is a formally designated use or an "existing use." The results of the BURPs will describe aquatic communities, including fish populations that so many Idahoans care about as well as the key

Table 4. The EPA's watershed protection approach.

Several key principles guide the watershed protection approach:

Place-based focus.-- Resource management activities are directed within specific geographical areas, usually defined by watershed boundaries, areas overlying or recharging ground water, or a combination of both.
Stakeholder involvement and partnerships.-- Watershed initiatives involve the people most likely to be affected by management decisions in the decision making process. Stakeholder participation ensures that the objectives of the watershed initiative will include economic stability and that the people who depend on the water resources in the watershed will participate in planning and implementation activities. Watershed initiatives also establish partnerships between Federal, State, and local agencies and nongovernmental organizations with interests in the watershed.
Environmental objectives.-- The stakeholders and partners identify environmental objectives (such as "populations of striped bass will stabilize or increase") rather than programmatic objectives (such as "the State will eliminate the backlog of discharge permit renewals") to measure the success of the watershed initiative. The environmental objectives are based on the condition of the ecological resource and the needs of people in the watershed.
Problem identification and prioritization.-- The Stakeholders and partners use sound scientific data and methods to identify and prioritize the primary threats to human and ecosystem health within the watershed. Consistent with the Agency's mission, EPA views ecosystems as the interactions of complex communities that include people; thus, healthy ecosystems provide for the health and welfare of humans as well as other living things.
Integrated actions.-- The stakeholders and partners take corrective actions in a comprehensive and integrated manner, evaluate success, and refine actions if necessary. The watershed protection approach coordinates activities conducted by numerous government agencies and nongovernmental organizations to maximize efficient use of limited resources.

Source: The Quality of Our Nation's Waters: 1994 (EPA 1995b).

Table 5. What is a Watershed Advisory Group (WAG)?

Watershed Advisory Groups (WAGs) advise the Idaho Division of Environmental Quality (DEQ) on actions to control sources of pollution within priority watersheds.
Watershed Advisory Groups (WAGs) are made up of people who have an interest in how the watershed is managed. They are representative of communities, industries, and interested parties or individuals which effect or are affected by the management of the watershed. Along with representatives of local government and the technical staff of land managing or regulatory agencies in the watershed, each watershed advisory group will be asked to help draft a watershed management plan using the TMDL ("total maximum daily load") process. The management plan will include those specific actions needed to effectively control point and nonpoint sources of pollution within that watershed so that, within a reasonable time, designated uses can be fully supported.

The Watershed Advisory Group Will:

Determine water quality concerns in the watershed
Define controls to address pollutants and their sources
Select strategies necessary to carry out the watershed management plan
Revise the watershed management plan in consideration of public, agency Advisory Group comment
Submit the management plan to the Basin Advisory Group (BAG) and DEQ for adoption as part of
Idaho's water quality plan
Administer the watershed management plan
Revise the plan based on periodic evaluations

Source: Clearwater Basin Advisory Group (CBAG 1996).

chemical and physical characteristics affecting their habitat. One might therefore expect public support for monitoring as it is conceived in the BURPs. In addition, the literature reviewed in this report points out the benefits of such an integrated monitoring program in meeting CWA goals. Bio-assessment is not only recommended by many scientists and water quality specialists, it also is necessary to detect water quality problems that would be missed by relying only on the more traditional chemical contaminants that have been the focus of point source pollution monitoring.

In August 1996 the DEQ finalized the Water Body Assessment Guidance (WBAG) document (IDEQ 1996). The WBAG process uses BURP and other data to determine beneficial use support. The WBAG process can also be used to identify appropriate designated beneficial uses.