Withdrawal of the Federal Water Quality Standards Use Designations for Certain Water Bodies in Idaho
Fact Sheet; EPA 823-F-08-013; November 2008
We are promulgating the withdrawal of the Federal water quality standards designating cold water biota uses for Soda Creek and portions of Canyon Creek, South Fork Coeur d'Alene River, and Blackfoot River in Idaho. EPA published the proposal for this final rulemaking on August 19, 2008.
EPA is taking further action to withdraw a direct final rule that EPA published on August 19, 2008. To be cautious, EPA decided to withdraw the direct final rule prior to its effective date to address two comments which could be considered "adverse". These comments are addressed in the final rule. Importantly, because the comments when considered by EPA did not result in a change in EPA's position, the direct final rule (08/2008) would have resulted in the same action EPA is taking by this final rule (11/2008).
The Clean Water Act (CWA) requires that all states, territories, and authorized tribes develop water quality standards that include the designated use or uses of the water body, water quality criteria to protect those uses, and an antidegradation policy. The CWA authorizes EPA to promulgate water quality standards for a state when EPA disapproves the state's new or revised water quality standards. Further, when EPA approves state-adopted water quality standards that meet the requirements of the CWA, EPA withdraws any previously applicable federal standards.
In July 1994, Idaho submitted water quality standards to EPA, including designated uses for Soda Creek, and portions of Canyon Creek, South Fork Coeur d'Alene River, and Blackfoot River. In June 1996, EPA disapproved the designated uses for these water bodies because they lacked an aquatic life use—that is, the state's designated uses provided less protection than that required by §101(a)(2) of the CWA and the implementing regulations at 40 CFR part 131. EPA also approved the state's water quality standards variance provision in June 1996.
In February 1997, a federal court (the U.S. District Court for the Western District of Washington), in Idaho Conservation League (ICL) v. Browner (No. C96-807WD; February 20, 1997), required EPA to promulgate standards to replace those disapproved by the Agency. In July 1997, EPA promulgated a rule establishing use designations for several water bodies in the State of Idaho, including the designation of cold water biota for Soda Creek and portions of Canyon Creek, South Fork Coeur d'Alene River, and Blackfoot River, except for any portion in Indian country (62 FR 41183; codified at 40 CFR §131.33(b)). The 1997 rule also included a water quality standards variance provision applicable to these four water bodies (40 CFR §131.33(d)).
In March 2000, Idaho removed the designation of "Protected for Future Use" from the Blackfoot River segment and left the use undesignated, which in Idaho's water quality standards means that the waters are protected for all recreational uses in and on the water and for the propagation of fish, shellfish, and wildlife. In March 2002, Idaho adopted a use designation of cold water biota for Canyon Creek and South Fork Coeur d'Alene River. In March 2006, Idaho removed the designation of "NONE" from Soda Creek and left the use undesignated. As described in the undesignated surface waters provision of Idaho's Water Quality Standards, the Idaho Department of Environmental Quality (IDEQ) applies cold water aquatic life criteria to undesignated waters because it is presumed that most waters in the state will support cold water aquatic life. Consequently, all four water bodies are now protected for cold water biota under Idaho's own water quality standards, which is equivalent to the protection provided by the federal water quality standards designating uses for these waters contained within the 1997 federal rulemaking.
In June 2005 and August 2006, EPA approved Idaho's revised water quality standards for these four water bodies, except for any portion of the Blackfoot River in Indian country.
About This Action
EPA is withdrawing the federal water quality standards designating uses for these water bodies (40 CFR §131.33(b)), which are now no longer necessary. EPA is also withdrawing the federal water quality standards variance provision related to these uses (40 CFR §131.33(d)), because this provision is no longer necessary due to the withdrawal of the federal water quality standards designating these uses.
EPA's action to remove the federal water quality standards that designated uses for Soda Creek and portions of Canyon Creek, South Fork Coeur d'Alene River, and Blackfoot River does not change the water quality criteria that apply to these water bodies. Idaho's water quality criteria that provide protection for the cold water aquatic life use apply to these water bodies.
This withdrawal would make the state's own use designations for these four water bodies (except for any portion in Indian country) the only applicable designations for all purposes, including determining water quality criteria that measure attainment of those uses and can be used to set limits in National Pollutant Discharge Elimination System (NPDES) permits. The effect of this rulemaking may only occur when entities seek variances to water quality standards. Currently, entities seeking variances from use designations on these waters must apply to EPA for variances; once EPA withdraws its rule, entities will need to apply to the state, and EPA will act on the state's decision to grant the variance.
When the final rule becomes effective, the state use designations in the four water bodies will become the only applicable designated uses. The state's regulations provide the same level of environmental protection as the federal regulations. This action imposes no regulatory requirements or additional costs on the current regulated community. The rule imposes only minimal additional effort on the State of Idaho as the regulator, because entities seeking variances from use designations will now apply to the state instead of to EPA.
How To Get Additional Information
Read the full text of the Federal Register notice, which provides information about how to review the complete administrative record. (November 05, 2008). The docket at Regulations.gov (EPA-HQ-OW-2008-0495) is also available.