State water quality decision finds interested parties not satisfied

Neither conservationists nor industry advocates are satisfied with a new Department of Environmental Quality (DEQ) rule establishing how the state will judge the health of lakes and rivers and determine if they can take on more pollutants.

The conflicts hinge on highly technical definitions and criteria, but it basically boils down to this: the Idaho Conservation League (ICL) thinks the rule leaves the door open for designated high-quality waters to be sullied while the Idaho Association of Commerce and Industry (IACI) is concerned commercial operations might have to jump through more regulatory hoops and find it harder to get pollutant-discharge permits because waters that the EPA designates as impaired could fall in Idaho’s high-quality category.

However, the rule approved unanimously by the Board of Environmental Quality on Wednesday has the blessing of the Environmental Protection Agency (EPA) and will keep the federal government from imposing its own standards, which, an EPA representative said, would mean “many of the permits will likely be more stringent than necessary.” As an example of that, DEQ Water Quality Division Administrator Barry Brunell said in an interview that the EPA would deem no discharge as insignificant, as the state will under the rule.

IACI President Alex LaBeau characterized the EPA’s claim a threat in an interview Thursday. 
During the meeting, IACI representative Alan Prouty, environmental manager for J.R. Simplot, claimed the rule could result in at least 65 percent of streams in the state being classified high-quality waters.

“If that’s the case we have some criteria issues,” Prouty said. “Something is out of balance here.”

The state has long had in place a so-called “anti-degradation” policy but it has lacked rules and criteria for implementing the policy. The process of creating the implementation rule started late last year after the ICL threatened to sue the EPA for not forcing the state to have the rule as mandated by the Clean Water Act. The DEQ held six all-day meetings this summer to hammer out the rule with environmentalists, industry advocates, and municipalities. Brunell said the new rule is the most significant the department has created in two decades.

ICL Program Director Justin Hayes said in an interview following the board’s decision that the implementation rule is a “half victory” that falls short because it evaluates on a water-body-by-water-body basis rather than a pollutant-by-pollutant basis. That means a lake with high levels of one pollutant, but that is otherwise pristine, could be designated lower quality; as a result, the requirements on municipalities or companies seeking to add pollutants could be less rigid.

“They spit out the rule but it’s not a sufficient rule,” Hayes said. “It doesn’t really capture the intent of the Clean Water Act, which is to keep waters that are high-quality waters from being degraded by death by a thousand cuts.”

Hayes indicated a future lawsuit could be in the offing.

“I think what we’ll find when all the dust settles is this rule’s not sufficient … the state will probably have to revisit this.”

Before voting, several board members said the rule isn’t perfect but with the EPA bearing down it had to be approved.

“It is incumbent upon us to put a rule in place, said board member Craig Harlen.

“We had no rule for 35 years after the Clean Water Act was passed and now we have a start to build on,” said board chairman Nick Purdy in an e-mail Thursday.

IACI President LaBeau said his organization will continue working with DEQ and state legislators to tweak the rule.

“We’ve still got some concerns with some of the ways the rule is drafted.”

He wouldn’t cite specifics and did not answer directly if he felt the rule is bad for business. It depends on particular cases, he said, adding, “What costs money for companies is when you have regulatory frameworks that are broken.”