# 62 FR 23003: Water Quality Standards for Idaho

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_97-10723

## Section

- **Citation:** 62 FR 23003
- **Heading:** Water Quality Standards for Idaho
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 62 / 62 FR 23003

## Text

Part III

Environmental Protection Agency

_______________________________________________________________________

40 CFR Part 131

Water Quality Standards for Idaho; Proposed Rule

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Proposed Rules

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[FRL-5817-8]

Water Quality Standards for Idaho

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: EPA is proposing water quality standards that would be
applicable to the waters of the United States in the State of Idaho. If
promulgated as final standards, they will supersede those aspects of
Idaho's water quality standards that EPA disapproved in 1993 and 1996.
EPA is taking this action because it believes those State water quality
standards are inconsistent with the Clean Water Act and EPA's
implementing regulations. The timing of this rulemaking is designed to
comply with a court order directing EPA to propose standards by April
21, 1997 and to promulgate final standards 90 days thereafter. EPA is
proposing new use designations on currently unclassified waters in the
State, and new use designations on 53 specified water body segments
whose use designations do not meet the goals of the Clean Water Act and
which have not been justified by the State. EPA is also proposing new
temperature criteria necessary to protect certain threatened and
endangered species and species being considered for listing as
threatened and endangered. Finally, EPA's proposal addresses the
State's mixing zone and anti-degradation policies as well as its
excluded waters provision.
et the goals of the Clean Water Act and
which have not been justified by the State. EPA is also proposing new
temperature criteria necessary to protect certain threatened and
endangered species and species being considered for listing as
threatened and endangered. Finally, EPA's proposal addresses the
State's mixing zone and anti-degradation policies as well as its
excluded waters provision.

DATES: EPA will accept public comments on this rulemaking until May 28,
1997. Comments postmarked after this date may not be considered. EPA is
sponsoring two public hearings on today's proposed water quality
standards for Idaho on May 12, 1997. The first is scheduled for 2-5:00
pm (MDT), and the second for 6:30-9:30 pm (MDT).

ADDRESSES: An original plus 2 copies, and if possible an electronic
version of comments either in WordPerfect or ASCII format, should be
addressed to Lisa Macchio, U.S. EPA Region 10, Office of Water, 1200
Sixth Avenue, Seattle, Washington, 98101.
The public hearings will be held in Rooms A and B of the Department
of Environmental Quality Earl Chandler Building, 1410 North Hilton,
Boise, Idaho.
The administrative record for today's proposed rule is available
for public inspection at EPA Region 10, Office of Water, 1200 Sixth
Avenue, Seattle, Washington, 98101, between 8:00 a.m. to 4:30 p.m.

FOR FURTHER INFORMATION CONTACT: Lisa Macchio at U.S.EPA Region 10,
Office of Water, 1200 Sixth Avenue, Seattle, Washington, 98101
(telephone: 206-553-1834), or William Morrow in U.S.EPA Headquarters at
202-260-3657.

SUPPLEMENTARY INFORMATION:

Preamble Outline
r public inspection at EPA Region 10, Office of Water, 1200 Sixth
Avenue, Seattle, Washington, 98101, between 8:00 a.m. to 4:30 p.m.

FOR FURTHER INFORMATION CONTACT: Lisa Macchio at U.S.EPA Region 10,
Office of Water, 1200 Sixth Avenue, Seattle, Washington, 98101
(telephone: 206-553-1834), or William Morrow in U.S.EPA Headquarters at
202-260-3657.

SUPPLEMENTARY INFORMATION:

Preamble Outline

A. Potentially Affected Entities
B. Background
1. Statutory and Regulatory Background
2. Factual Background
C. Unclassified Waters
1. Background
2. Idaho's Unclassified Waters Provision
3. Federal Use Designation for Unclassified Waters in Idaho
D. Stream Segments With Specific Beneficial Use Designations
1. Background
2. EPA Review of Idaho's Use Designations
3. Recent Idaho Actions
4. Federal Beneficial Use Designations for Specific Water Body
Segments
i. Primary Contact Recreation
ii. Cold Water Biota
iii. Salmonid Spawning
5. Request for Comment and Data
E. Temperature Criteria for Threatened and Endangered Species
1. Background
2. Kootenai River White Sturgeon
i. EPA's Review
ii. Idaho's Temperature Criteria
iii. EPA's Proposed Temperature Criteria
3. Freshwater Aquatic Snails
i. EPA's Review
ii. Idaho's Temperature Criteria
iii. EPA's Proposed Temperature Criterion
4. Bull Trout
i. EPA's Review
ii. Idaho's Temperature Criteria
iii. EPA's Proposed Temperature Criteria and Bull Trout
Distribution
F. Antidegradation Policy
G. Mixing Zone Policy
1. Idaho's Existing Policy
2. Federal Mixing Zone Policy for Idaho
H. Excluded Waters Provision
I. Federal Variances
J. Regulatory Impact Analysis
1. Use Attainability
2. Costs
i. Overview of Methodology to Estimate Potential Costs Related
to New Use Designations
ii. Results for Stream Segments with Specific Use Designations
and Unclassified Waters
iii. Overview of Approach to Estimate Potential Costs Related to
New Temperature Criteria
K. Executive Order 12866
L
ded Waters Provision
I. Federal Variances
J. Regulatory Impact Analysis
1. Use Attainability
2. Costs
i. Overview of Methodology to Estimate Potential Costs Related
to New Use Designations
ii. Results for Stream Segments with Specific Use Designations
and Unclassified Waters
iii. Overview of Approach to Estimate Potential Costs Related to
New Temperature Criteria
K. Executive Order 12866
L. Regulatory Flexibility Act as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
M. Unfunded Mandates Reform Act
N. Paperwork Reduction Act
O. Executive Order 12875

A. Potentially Affected Entities

Citizens concerned with water quality in Idaho may be interested in
this rulemaking. Entities discharging pollutants to waters of the
United States in Idaho could be indirectly affected by this rulemaking
since water quality standards are used in determining National
Pollutant Discharge Elimination System (NPDES) permit limits.
Categories and entities which may ultimately be affected include:

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Examples of potentially affected
Category entities
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Industry.......................... Industries discharging pollutants to
surface waters in Idaho.
Municipalities.................... Publicly-owned treatment works
discharging pollutants to surface
waters in Idaho.
------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather provides a
guide for readers regarding NPDES regulated entities likely to be
affected by this action. This table lists the types of entities that
EPA is now aware could potentially be affected by this action.

B. Background

1. Statutory and Regulatory Background
.
------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather provides a
guide for readers regarding NPDES regulated entities likely to be
affected by this action. This table lists the types of entities that
EPA is now aware could potentially be affected by this action.

B. Background

1. Statutory and Regulatory Background

Under section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA),
States are required to develop water quality standards for waters of
the United States within the State. Section 303(c) provides that water
quality standards shall include the designated use or uses to be made
of the water and criteria necessary to protect the uses. States are
required to review their water quality standards at least once every
three years and, if appropriate, revise or adopt new standards. The
results of this triennial review must be submitted to EPA, and EPA must
approve or disapprove any new or revised standards.

EPA regulations implementing section 303(c) are published at 40 CFR
Part 131. Under these rules, the minimum elements that must be included
in a State's water quality standards include: use designations for all
water bodies in the State, water quality criteria sufficient to protect
those use designations, and an anti-degradation policy consistent with
EPA's water quality standards. 40 CFR 131.6. States may also include in
their standards policies generally affecting the standards' application
and implementation. See 40 CFR 131.13. These policies are subject to
EPA review and approval.
The authority to review and to approve or disapprove new or revised
water quality standards for EPA Region X has been delegated from the
Administrator to the Regional Administrator, and redelegated to the
Regional Director of Water. See EPA's Delegation Manual, Sec. 2-10,
dated January 28, 1976, and EPA Region X's redelegation manual,
Sec. R10 1250.42, September 12, 1995
review and approval.
The authority to review and to approve or disapprove new or revised
water quality standards for EPA Region X has been delegated from the
Administrator to the Regional Administrator, and redelegated to the
Regional Director of Water. See EPA's Delegation Manual, Sec. 2-10,
dated January 28, 1976, and EPA Region X's redelegation manual,
Sec. R10 1250.42, September 12, 1995. The authority to determine that
new or revised standards are needed, notwithstanding a prior approval,
has not been delegated, and so remains with the Administrator.
Section 303(c) of the CWA authorizes EPA to promulgate water
quality standards to supersede State standards that have been
disapproved, or in any case where the Administrator determines that a
new or revised standard is needed to meet the CWA's requirements. EPA
is acting today to promulgate standards superseding State standards
that have been deemed disapproved by the U.S. District Court for the
Western District of Washington's in Idaho Conservation League v.
Browner (No. C96-807WD, February 20, 1997, herein ``ICL v. Browner'').
Today's proposal represents a preliminary determination by the
Administrator that each of the elements in today's rulemaking is
necessary and appropriate.
EPA's usual practice when promulgating a water quality standard is
to provide 45 days advance notice of a hearing, and a public comment
period that extends at least until the date of the hearing. 40 CFR
Sec. 25.5(a). However, the regulations also allow for the modification
of specific deadlines where necessary to accommodate the specific
provisions of court orders. Here, EPA is under a court order to propose
standards in 60 days and to promulgate 90 days after proposal. A
comment period of 45 days would not allow EPA sufficient time to
analyze and consider a substantial set of comments. Accordingly, EPA is
providing a comment period of 30 days as well as holding two public
hearings on May 12, 1997
to accommodate the specific
provisions of court orders. Here, EPA is under a court order to propose
standards in 60 days and to promulgate 90 days after proposal. A
comment period of 45 days would not allow EPA sufficient time to
analyze and consider a substantial set of comments. Accordingly, EPA is
providing a comment period of 30 days as well as holding two public
hearings on May 12, 1997. The demanding schedule for promulgation of
standards in this case has also led EPA to propose a special procedure
by which the Regional Administrator for Region 10 may grant variances
from EPA-designated uses where, following promulgation of these
standards, information becomes available showing that an EPA-designated
use is unattainable. See section I. below for a detailed discussion.
Section 7 of the Endangered Species Act requires federal agencies,
in consultation with the U.S. Fish and Wildlife Service (FWS) and
National Marine Fisheries Service (NMFS), to insure that their actions
are not likely to jeopardize the continued existence of any listed
species or result in the destruction or adverse modification of habitat
of such species which have been designated as ``critical.''
Consultation is designed to assist federal agencies in complying with
the requirements of section 7 by supplying a process within which FWS
and NMFS provide such agencies with advice and guidance on whether an
action complies with the substantive requirements of ESA. Approval of
State water quality standards and federal promulgation of water quality
standards are considered federal actions, and hence EPA is required to
comply with the requirements of section 7 of ESA prior to final
promulgation.
As a result of EPA's responsibilities and duties under Section 7 of
the Endangered Species Act, EPA has initiated informal consultation
with FWS and NMFS on this rulemaking. As part of this process EPA is
preparing a biological assessment document which will be submitted to
FWS and NMFS prior to the final rulemaking
omply with the requirements of section 7 of ESA prior to final
promulgation.
As a result of EPA's responsibilities and duties under Section 7 of
the Endangered Species Act, EPA has initiated informal consultation
with FWS and NMFS on this rulemaking. As part of this process EPA is
preparing a biological assessment document which will be submitted to
FWS and NMFS prior to the final rulemaking. EPA expects to conclude
consultation with the Services prior to the final rulemaking.
EPA developed today's proposed standards by application of existing
State requirements for development of water quality standards set out
in 40 CFR Part 131, EPA's implementing policies and procedures, and
existing methodologies for criteria development. The basis for the
proposed rule is described more fully below in sections C-I.

2. Factual Background

On July 11, 1994, Idaho submitted a complete set of water quality
standards to EPA for review and approval. Pursuant to section 303(c)(3)
of the CWA, EPA reviewed this complete set of standards. Under the
mistaken assumption that all the standards submitted in 1994 were new
or revised, EPA reviewed and approved or disapproved all of the State's
standards in a June 25, 1996 letter from Chuck Clarke, Region X
Regional Administrator, to Wallace Cory, Director, Idaho Division of
Environmental Quality. Specifically, the letter disapproved the State's
default use designation for unclassified waters, the use designations
for 53 waters with designated uses, temperature criteria, portions of
the mixing zone and antidegradation policies, the Kinross-Delamar
variance, and the excluded waters provision. The letter stated that EPA
was approving the remainder of Idaho's water quality standards, subject
to completing the consultation required under section 7 of the
Endangered Species Act
waters, the use designations
for 53 waters with designated uses, temperature criteria, portions of
the mixing zone and antidegradation policies, the Kinross-Delamar
variance, and the excluded waters provision. The letter stated that EPA
was approving the remainder of Idaho's water quality standards, subject
to completing the consultation required under section 7 of the
Endangered Species Act.
Subsequent to the June 25, 1996 action, EPA Region X discovered
records that clarified that the standards it had acted on included not
only new and revised standards, but also standards which had been
previously approved in the same or substantially the same form. This
discovery was significant because Region X had been delegated authority
to approve or disapprove only new or revised State standards; the
Administrator has reserved the authority to determine that new or
revised federal standards are needed where State standards have
previously been approved. EPA promptly notified the parties and the
court of this discovery.
To ensure that all the deficiencies in Idaho's standards were
addressed in these circumstances, by a November 22, 1996 memorandum
from Chuck Clarke to the Administrator, Region X acknowledged its error
and recommended that the EPA Administrator act pursuant to her
discretionary authority to fill those gaps where Region X had acted
beyond its authority. On February 20, 1997, the District Court in ICL
v. Browner held that EPA was obligated to promulgate standards to
supersede all of those disapproved in the June 25, 1996 letter,
regardless of whether the standards were new or revised.

C. Unclassified Waters

1. Background

Water quality standards consist of designated beneficial uses,
criteria necessary to protect those uses, and an antidegradation
policy. Water quality standards establish the ``goals'' for a water
body. Designated beneficial uses determine what criteria apply to the
water body. In general, States have not
ess of whether the standards were new or revised.

C. Unclassified Waters

1. Background

Water quality standards consist of designated beneficial uses,
criteria necessary to protect those uses, and an antidegradation
policy. Water quality standards establish the ``goals'' for a water
body. Designated beneficial uses determine what criteria apply to the
water body. In general, States have not

had the resources to designate beneficial uses on a segment-by-segment
basis for all of the State's surface waters. States usually initially
designate beneficial uses site-specifically for a subset of water
segments that are potentially threatened by degradation, and then as
resources and information become available gradually begin to classify
the remainder. This allows States to focus limited resources on
collecting information to protect the water segments at most risk. This
approach combined with a default use designation for unclassified
waters ensures all State surface waters have designated beneficial uses
and are protected for purposes of the Clean Water Act.
Section 101(a)(2) of the Clean Water Act States the national goal
of achieving by July 1, 1983, ``water quality which provides for the
protection and propagation of fish, shellfish, and wildlife and * * *
recreation in and on the water,'' wherever attainable. These national
goals are commonly referred to as the ``fishable/swimmable'' goals of
the Clean Water Act. Section 303(c)(2)(A) requires water quality
standards to ``protect the public health and welfare, enhance the
quality of water, and serve the purposes of this Act.'' EPA's
regulations at 40 CFR Part 131 interpret and implement these provisions
through a requirement that water quality standards provide for
fishable/swimmable uses unless those uses have been shown to be
unattainable, effectively creating a rebuttable presumption of
attainability. Unless that presumption has been rebutted, a default
designation of fishable/swimmable beneficial uses apply.
Under 40 CFR Sec
ns at 40 CFR Part 131 interpret and implement these provisions
through a requirement that water quality standards provide for
fishable/swimmable uses unless those uses have been shown to be
unattainable, effectively creating a rebuttable presumption of
attainability. Unless that presumption has been rebutted, a default
designation of fishable/swimmable beneficial uses apply.
Under 40 CFR Sec. 131.10(j), States and Tribes are required to
conduct a use attainability analysis (UAA) whenever the State or Tribe
designates or has designated uses that do not include the uses
specified in Section 101(a)(2) of the CWA, or when the State or Tribe
wishes to remove a designated use that is specified in Section
101(a)(2) of the Act, or adopt subcategories of uses that require less
stringent criteria. Section 131.10 lists grounds upon which a finding
of un-attainability may be based. At a minimum, uses are considered by
EPA to be attainable if the uses can be achieved when (1) effluent
limitations under Section 301(b)(1) (A) and (B) and Section 306 are
established for point source dischargers, and (2) cost effective and
reasonable best management practices are established for nonpoint
source dischargers.
A UAA is defined in 40 CFR Sec. 131.3(g) as a ``structured
scientific assessment of the factors affecting the attainment of a use
which may include physical, chemical, biological, and economic factors
as described in Sec. 131.10(g).'' In a UAA, the physical, chemical and
biological factors affecting the attainment of a use are evaluated
through a water body survey and assessment. In addition, where the
economic impact of attaining a use is an issue, those impacts may be
documented in the UAA.

2. Idaho's Unclassified Waters Provision
ude physical, chemical, biological, and economic factors
as described in Sec. 131.10(g).'' In a UAA, the physical, chemical and
biological factors affecting the attainment of a use are evaluated
through a water body survey and assessment. In addition, where the
economic impact of attaining a use is an issue, those impacts may be
documented in the UAA.

2. Idaho's Unclassified Waters Provision

Idaho's regulations at 16.01.02.101.01. adopted August 24, 1994,
protected unclassified surface waters for primary contact recreation,
unless the physical characteristics of a water body prevented primary
contact recreation. In those cases, the water body was protected for
secondary contact recreation. While providing for swimmable waters
unless and until such use is shown to be unattainable, this provision
did not provide any protection for aquatic life, that is, the
``fishable'' component of fishable/swimmable uses. In its June 1996
letter, EPA disapproved this provision because it did not protect
unclassified waters for ``protection and propagation of fish, shellfish
and wildlife'' and because the State had not demonstrated that such
uses were unattainable in unclassified waters, as required by sections
101(a) and 303(c) of the CWA and by EPA's regulations.
On December 1, 1996, Idaho adopted a modified unclassified waters
provision which protects unclassified waters for all recreational use
in and on the water and the protection and propagation of fish,
shellfish and wildlife, ``wherever attainable.'' By letter dated
September 23, 1996, Idaho explained that this language was not intended
to establish a default designation for aquatic life, but rather that
the State contemplated that when regulatory decisions such as NPDES
permit decisions arose, data would be reviewed to determine the
appropriate beneficial use
tion and propagation of fish,
shellfish and wildlife, ``wherever attainable.'' By letter dated
September 23, 1996, Idaho explained that this language was not intended
to establish a default designation for aquatic life, but rather that
the State contemplated that when regulatory decisions such as NPDES
permit decisions arose, data would be reviewed to determine the
appropriate beneficial use. Based on this letter and conversations with
Idaho's Division of Environmental Quality, it is EPA's understanding
that under Idaho's intended interpretation, this provision does not
presume that unclassified waters will be protected for fishable/
swimmable uses and does not require that such uses be demonstrated to
be unattainable before a lesser use is employed in regulatory
decisions. Idaho's approach appears to shift the burden so as to
require a demonstration that fishable/swimmable uses are attainable
before they will be protected. This is inconsistent with the goals of
CWA Sec. 101(a)(2) and the requirements of CWA Sec. 303(b)(2) and 40
CFR 131.10.

3. Federal Use Designation for Unclassified Waters in Idaho

EPA is proposing to promulgate a default use designation for
unclassified waters which provides for the protection and propagation
of fish, shellfish, and wildlife, and recreation in and on the water,
unless it is demonstrated to EPA for a particular water body that such
use(s) are unattainable. Demonstrations that a fishable/swimmable use
is unattainable for a particular unclassified water body can be made by
applying for a variance to the federal standard. The federal variance
procedure is discussed in section I. The CWA specifies that States are
to establish water quality standards which includes designating
beneficial uses. It is only when a State adopts standards inconsistent
with the CWA, that EPA must promulgate replacement standards
le for a particular unclassified water body can be made by
applying for a variance to the federal standard. The federal variance
procedure is discussed in section I. The CWA specifies that States are
to establish water quality standards which includes designating
beneficial uses. It is only when a State adopts standards inconsistent
with the CWA, that EPA must promulgate replacement standards. If Idaho
formally designates a beneficial use for a specific unclassified water
body, that water body would no longer be subject to the proposed
unclassified waters provision. Such designations are subject to EPA
review and approval under CWA Sec. 303(c)(2). In addition, if Idaho
corrects the deficiency in their current designated use for
unclassified waters, and EPA approves, EPA will remove today's federal
designated use for unclassified waters.
In order to provide for the protection and propagation of aquatic
life in unclassified waters, it is necessary to determine the
predominant type of aquatic life in Idaho's surface waters. Aquatic
life in different ecosystems have different needs. Salmonid fishes,
especially chinook salmon and bull trout, are often referred to as
cold-water fish (ODEQ, 1995). Cold-water fish occur in all of Idaho's
basins, with some limited exceptions of isolated sub-basins in southern
Idaho. Table 1 shows the non-salmonid fish found in Idaho (Simpson and
Wallace, 1982). These fish are classified as cool/cold-and warm-water
species (ODEQ, 1995; Simpson and Wallace, 1982; Sigler and Sigler,
1987). Non-salmonid cool/cold-water fish native to Idaho include
several species of sculpin, dace, chub, and suckers. The only known
warm-water species of fish native to Idaho are the Utah sucker and the
Utah chub.
-salmonid fish found in Idaho (Simpson and
Wallace, 1982). These fish are classified as cool/cold-and warm-water
species (ODEQ, 1995; Simpson and Wallace, 1982; Sigler and Sigler,
1987). Non-salmonid cool/cold-water fish native to Idaho include
several species of sculpin, dace, chub, and suckers. The only known
warm-water species of fish native to Idaho are the Utah sucker and the
Utah chub.

Table 1.--Nonsalmonid Fishes of Idaho (Simpson and Wallace, 1982)
----------------------------------------------------------------------------------------------------------------
Family Common names Introduced or native Warm or cool/cold
----------------------------------------------------------------------------------------------------------------
CLUPEIDAE..................... American Shad, Herring.. Introduced................... Warm.
CENTRARCHIDAE................. Bass, Largemouth Bass, Introduced................... Warm.
Pumpkinseed, White
Crappie, Green Sunfish,
Warmouth, Bluegill.
Black Crappie, Introduced................... Cool/Cold.
Smallmouth Bass.
COTTIDAE...................... Bear Lake Sculpin, Native....................... Cool/Cold.
Mottled Sculpin, Paiute
Sculpin, Shorthead
Sculpin, Shoshone
Sculpin, Slimy Sculpin,
Torrent Sculpin, Wood
River Sculpin.
ICTALURIDAE................... Black Bullhead, Brown Introduced................... Warm.
Bullhead, Channel
Catfish, Tadpole
Madtom, Flathead
Catfish.
CATOSTOMIDAE.................. Bluehead Sucker, Native....................... Cool/Cold.
Bridgelip Sucker,
Largescale Sucker,
Longnose Sucker,
Mountain Sucker.
Utah Sucker............. Native....................... Warm.
GADIDAE....................... Burbot.................. Native....................... Cool/Cold.
CYPRINIDAE.................... Common Carp, Fathead Introduced................... Warm.
Minnow, Goldfish,
Tench, Tui Chub.
Chiselmouth, Leatherside Native....................... Cool/Cold
ucker,
Longnose Sucker,
Mountain Sucker.
Utah Sucker............. Native....................... Warm.
GADIDAE....................... Burbot.................. Native....................... Cool/Cold.
CYPRINIDAE.................... Common Carp, Fathead Introduced................... Warm.
Minnow, Goldfish,
Tench, Tui Chub.
Chiselmouth, Leatherside Native....................... Cool/Cold.
Chub, Leopard Dace,
Longnose Dace, Northern
Squawfish, Peamouth,
Redside Shiner,
Speckled Dace, Lake
Chub.
Utah Chub............... Native....................... Warm.
POECILIIDAE................... Guppy, Western Introduced................... Warm.
Mosquitofish.
PETROMYZONTIDAE............... Pacific Lamprey......... Native....................... Cool/Cold.
ESOCIDAE...................... Northern Pike........... Introduced................... Cool/Cold.
OSMERUS....................... Rainbow Smelt........... Introduced................... Cool/Cold.
PERCOPSIDAE................... Sand Roller............. Native....................... Cool/Cold.
ACIPENSERIDAE................. White Sturgeon.......... Native....................... Cool/Cold.
PERCIDAE...................... Walleye, Yellow Perch... Introduced................... Cool/Cold.
----------------------------------------------------------------------------------------------------------------

The Utah Chub is native to the Bear River basin and the Snake River
basin above Shoshone falls. It is also found in the Wood River system
and in Henry's Fork of the Snake River with its range restricted to the
area below Mesa Falls (Simpson and Wallace, 1982). The Utah Chub
prefers lake, pond and reservoir environments and is tolerant of warmer
water temperatures (Simpson and Wallace, 1982). The Utah Chub is
considered a ``nuisance'' in trout waters, and the Idaho Department of
Fish and Game has attempted, unsuccessfully to eradicate Utah Chub from
important trout waters (Simpson and Wallace, 1982)
area below Mesa Falls (Simpson and Wallace, 1982). The Utah Chub
prefers lake, pond and reservoir environments and is tolerant of warmer
water temperatures (Simpson and Wallace, 1982). The Utah Chub is
considered a ``nuisance'' in trout waters, and the Idaho Department of
Fish and Game has attempted, unsuccessfully to eradicate Utah Chub from
important trout waters (Simpson and Wallace, 1982). Although no life
cycle studies have been conducted in Idaho, the successful colonization
of the Utah Chub in trout waters would seem to indicate that the Utah
Chub can reproduce and survive in cold water. The Utah Sucker is also
found in the Bear River basin and the Snake River basin above Shoshone
Falls. Although the temperature requirements for different stages of
its life cycle are unknown, its geographic distribution covers a wide
range of warm to very cold waters which suggest it is an adaptable
species (Simpson and Wallace, 1982).
The majority of native Idaho fish are classified as cold water
species and the presence of these species occurs throughout the entire
State. The only two warm water native fish species are of limited
geographic range and also occur where cold water native fish species
exist. In addition, of the 240 water segments that Idaho has
specifically designated beneficial uses for in their water quality
standards (see IDAPA 16.01.02.100.-161.), only 3 have been designated
as warm water biota. Of those three, EPA is proposing to promulgate
cold water protection for one of those streams based on the presence of
cold water species (see section D.4.ii.). EPA believes having a default
assumption protective of cold water species applicable in the State of
Idaho is reasonable based upon the State's beneficial use designations
to date and the scientific information presented above.
Idaho has set out in its water quality standards at
16.01.02.250.02.c. criteria necessary to support cold water aquatic
life
cold water species (see section D.4.ii.). EPA believes having a default
assumption protective of cold water species applicable in the State of
Idaho is reasonable based upon the State's beneficial use designations
to date and the scientific information presented above.
Idaho has set out in its water quality standards at
16.01.02.250.02.c. criteria necessary to support cold water aquatic
life. Because the predominant ecosystem in Idaho is comprised of cold
water aquatic life, EPA is proposing to rely on Idaho's existing
criteria for cold water biota for the protection of unclassified
waters, except where lower temperatures are required to protect
threatened and endangered species (see section E below). Idaho's
existing criteria for cold water biota include criteria for dissolved
oxygen (D.O.), temperature, ammonia, and turbidity. EPA solicits
comment on the selection of cold water biota as a default beneficial
use for unclassified waters. In particular, EPA seeks information about
the present distribution of various salmonid and non-salmonid cold
water species in Idaho. EPA also solicits comment on the distribution
of warm water species in Idaho. EPA seeks data on the temperature
requirements of sensitive life cycle stages for the Idaho Chub and the
Idaho Sucker. EPA also seeks comment on the historical distribution of
both native cold water and native warm water species in Idaho.
The second component of ``fishable/swimmable'' is proposed to be
addressed through the primary contact recreation use and associated
criteria. However, as discussed below in section D.4.i., Idaho's
criteria for secondary contact recreation are adequate to protect
swimming. EPA seeks comment on the option of relying on secondary
contact recreation for protection of recreation in unclassified waters.
Specifically, EPA is seeking comment on whether a primary contact
recreation use designation is necessary when the criteria associated
with secondary contact recreation are protective of swimming
eria for secondary contact recreation are adequate to protect
swimming. EPA seeks comment on the option of relying on secondary
contact recreation for protection of recreation in unclassified waters.
Specifically, EPA is seeking comment on whether a primary contact
recreation use designation is necessary when the criteria associated
with secondary contact recreation are protective of swimming.
When Idaho designates a beneficial use for a specific water body
that is currently unclassified, that water body will no longer be
within the scope of EPA's unclassified waters beneficial designated
use. EPA will review the State's beneficial use designation for
specific water bodies and approve or disapprove as part of EPA's review
process under section 303(c) of the CWA.

D. Stream Segments With Specific Beneficial Use Designations

1. Background

As discussed in Section ``C. Unclassified Waters'' above, the
federal water quality standards regulations require that water quality
standards

provide for fishable/swimmable uses unless it has been demonstrated
that attaining the designated beneficial uses is not feasible for any
of the reasons described in 40 CFR 131.10(g). Whenever the State
designates or has designated uses that do not include these fishable/
swimmable uses or when the State wishes to remove a designated use, a
use attainability analysis (UAA) must be completed and submitted to EPA
for review.

2. EPA Review of Idaho's Use Designations
attaining the designated beneficial uses is not feasible for any
of the reasons described in 40 CFR 131.10(g). Whenever the State
designates or has designated uses that do not include these fishable/
swimmable uses or when the State wishes to remove a designated use, a
use attainability analysis (UAA) must be completed and submitted to EPA
for review.

2. EPA Review of Idaho's Use Designations

Idaho's 1994 water quality standards which were submitted to EPA
for review contained 53 water body segments which had designated
beneficial uses which were less than fishable/swimmable. More
specifically, the designated beneficial uses for 9 segments were
missing cold water biota, for 18 were missing primary contact
recreation and for 26 were missing both cold water biota and primary
contact recreation. Idaho had not submitted UAA's justifying the
lowered uses for these segments.
In a letter to Idaho from EPA in October 1995, EPA pointed out this
deficiency. Idaho took no action. On June 25, 1996, EPA disapproved the
uses for these 53 water body segments because the State had failed to
justify lower use classifications in accordance with 40 CFR
Sec. 131.10(j). EPA Stated that, to meet the requirements of the CWA,
Idaho must either submit use attainability analyses providing the
justification for less than fishable/swimmable uses for the subject
waters or revise the standards to include fishable and swimmable uses.

3. Recent Idaho Actions
nts because the State had failed to
justify lower use classifications in accordance with 40 CFR
Sec. 131.10(j). EPA Stated that, to meet the requirements of the CWA,
Idaho must either submit use attainability analyses providing the
justification for less than fishable/swimmable uses for the subject
waters or revise the standards to include fishable and swimmable uses.

3. Recent Idaho Actions

To date, Idaho has taken action to revise the designated beneficial
uses for 2 of the 53 water body segments. Idaho adopted a temporary
rule on February 11, 1997 for the upgrade of uses for West Fork
Blackbird Creek, SB 4211 in the Salmon Basin, and Lindsay Creek, CB 210
in the Clearwater Basin. The temporary rule designated cold water biota
and salmonid spawning use for West Fork Blackbird Creek and secondary
contact recreation for Lindsay Creek and became effective on March 1,
1997. Idaho submitted this temporary rule to EPA on March 24, 1997.
With these changes, it appears that the beneficial use designations
for these segments meet the requirements of 40 CFR 131.10. However, the
process followed by Idaho in adopting this temporary rule has not yet
provided an opportunity for public hearing or comment on the rule as
required by 40 CFR 131.20. Because these segments are covered by Judge
Dwyer's order, and because EPA has not completed its approval/
disapproval action on Idaho's temporary rules for these segments, they
are included in today's proposal. If EPA approves these or other State
adopted standards before promulgating a final Federal rule, there will
be no need to include them in the final promulgation.

4. Federal Beneficial Use Designations for Specific Water Body Segments
's order, and because EPA has not completed its approval/
disapproval action on Idaho's temporary rules for these segments, they
are included in today's proposal. If EPA approves these or other State
adopted standards before promulgating a final Federal rule, there will
be no need to include them in the final promulgation.

4. Federal Beneficial Use Designations for Specific Water Body Segments

In its modified order, the District Court ordered EPA to propose
water quality standards by April 21, 1997 for the 53 water body
segments whose designations EPA had disapproved in June 1996. The
brevity of this schedule did not allow EPA time to complete its review
of available data on each of these segments, nor did it allow EPA time
to solicit data prior to this proposed rulemaking. Accordingly, in
proposing designated beneficial uses for the water body segments of
concern, EPA is relying on the rebuttable presumption implicit in its
regulations, that fishable/swimmable uses are attainable. If further
data indicates that this presumption is not appropriate for particular
water bodies, EPA's final rule will be revised accordingly. In
particular, if EPA determines, based on the record, that any of Idaho's
designations are justified, there will not be a need for federally
promulgated use designations for the water bodies in question. EPA
believes that this approach is reasonable because it is consistent with
the goals in section 101(a)(2) of the CWA and the implementing
requirements in the water quality standards regulations at 40 CFR Part
131.
Idaho's use classification system includes a number of beneficial
uses for its waters, including ``domestic water supply'',
``agricultural water supply'', ``cold water biota'', ``warm water
biota'', ``salmonid spawning'', ``primary contact recreation'' and
``secondary contact recreation''. EPA's approach in proposing
beneficial uses for the 53 water body segments is to select uses from
Idaho's system which correspond to ``fishable/swimmable'' uses
neficial
uses for its waters, including ``domestic water supply'',
``agricultural water supply'', ``cold water biota'', ``warm water
biota'', ``salmonid spawning'', ``primary contact recreation'' and
``secondary contact recreation''. EPA's approach in proposing
beneficial uses for the 53 water body segments is to select uses from
Idaho's system which correspond to ``fishable/swimmable'' uses. This
approach meets the requirements of the CWA while facilitating ultimate
withdrawal of federal standards.
i. Primary Contact Recreation
Forty-four of the water bodies whose beneficial use designations
were disapproved by EPA were missing primary contact recreation. In
most instances, the water bodies were assigned secondary contact
recreation; a few segments had neither primary or secondary. In light
of recent discussions with the State, it now appears that the criteria
assigned by Idaho to protect secondary contact recreation are
consistent with EPA guidance on bacteriological criteria for primary
contact recreation.
In the current Idaho water quality standards, except for fecal
coliform bacteria, all of the criteria applicable to primary contact
recreation are also applicable to secondary contact recreation (i.e.,
all toxic substance criteria for the protection of human health apply
to both primary and secondary contact recreation, see IDAPA
16.01.02.250.01.c.). It is only the bacteriological criteria which
differ between primary and secondary contact recreation.
Idaho's current bacteriological criteria for the protection of
secondary contact recreation are concentrations of fecal coliform
bacteria not to exceed a geometric mean of 200/100 milliliters (ml)
based on a minimum of five samples taken over a thirty day period, 800/
100 ml at any time; and 400/100 ml in more than ten percent of the
total samples taken over a thirty day period
ct recreation.
Idaho's current bacteriological criteria for the protection of
secondary contact recreation are concentrations of fecal coliform
bacteria not to exceed a geometric mean of 200/100 milliliters (ml)
based on a minimum of five samples taken over a thirty day period, 800/
100 ml at any time; and 400/100 ml in more than ten percent of the
total samples taken over a thirty day period. (See IDAPA
16.01.02.250.01.b.)
Idaho's current bacteriological criteria applicable for the
protection of primary contact recreation apply between May 1 and
September 30 of each calendar year and are concentrations of fecal
coliform bacteria not to exceed a geometric mean of 50/100 ml based on
a minimum of five samples taken over a thirty day period, 500/100 ml at
any time; and 200/100 ml in more than ten percent of the total samples
taken over a thirty day period. (See IDAPA 16.01.02.250.01.a.). EPA's
section 304(a)(1) bacteriological criteria document published in 1976
recommended a log mean fecal coliform limits of 200 FC/100 ml.
EPA believes it is required by the terms of the District Court's
order to propose primary contact recreation as a designated beneficial
use for those water bodies which already have secondary contact as a
designated beneficial use. However, EPA is soliciting comment on
whether Idaho's secondary contact recreation, with its associated
criteria, is sufficient. Specifically, EPA seeks comment on (1) whether
Idaho's criteria for secondary contact recreation are in fact
sufficient to protect primary contact recreation; and (2) if that is
so, whether there is any reason to promulgate federal primary contact
recreation use designations for the streams already subject to the
secondary contact recreation criteria.
ii. Cold Water Biota
Thirty five of the 53 segments addressed in EPA's June 1996 letter
Idaho's criteria for secondary contact recreation are in fact
sufficient to protect primary contact recreation; and (2) if that is
so, whether there is any reason to promulgate federal primary contact
recreation use designations for the streams already subject to the
secondary contact recreation criteria.
ii. Cold Water Biota
Thirty five of the 53 segments addressed in EPA's June 1996 letter

were disapproved because they were missing a cold water biota
beneficial use designation. As discussed above, under section C
(Unclassified Waters), cold water biota is the appropriate default
aquatic life classification for Idaho. To the extent possible prior to
proposal, EPA also examined data for these 35 segments relevant to the
existence of, or potential to support, cold water biota.
EPA solicited and collected water chemistry data for the South Fork
Coeur d'Alene River Basin from Idaho Fish and Game, the Coeur d'Alene
Tribe and from within EPA's Superfund Program. In addition, biological
monitoring data on marcroinvertebrates and fish population data was
collected from the Idaho Department of Fish and Game and the Coeur
d'Alene Tribe for this basin.
EPA also reviewed physical, chemical and biological data on West
Fork Blackbird Creek which Idaho DEQ submitted to EPA. Additionally
Idaho DEQ submitted to EPA preliminary results of assessment data which
either they had collected or had been collected from other sources,
such as Idaho Department of Fish and Game, on the 35 water body
segments which were lacking a cold water biota beneficial use
designation.
Based on the above data, as well as EPA's approach discussed in
Section C above, EPA determined that it is appropriate to propose a
cold water biota designated beneficial use for the 35 water body
segments.
iii. Salmonid Spawning
As a result of EPA's responsibilities and duties under Section 7 of
the Endangered Species Act, EPA initiated informal consultation with
FWS and NMFS on our proposed action
the above data, as well as EPA's approach discussed in
Section C above, EPA determined that it is appropriate to propose a
cold water biota designated beneficial use for the 35 water body
segments.
iii. Salmonid Spawning
As a result of EPA's responsibilities and duties under Section 7 of
the Endangered Species Act, EPA initiated informal consultation with
FWS and NMFS on our proposed action. In conferring with NMFS on
designating beneficial uses for these 53 segments, EPA obtained data
from Idaho Department of Fish and Game which indicated that 7 of the 53
segments provide spawning habitat for chinook and steelhead salmon. Of
these 7, there were 4 which Idaho had not already designated for
salmonid spawning use. As a result of this information, EPA is
proposing an additional designated use of salmonid spawning for the
following four segments: Grasshopper Creek, Little Bear Creek,
Blackbird Creek, Panther Creek.
Based on the information provided, EPA determined that salmonid
spawning, which requires more stringent temperature and dissolved
oxygen criteria than those assigned to cold water biota, was the
appropriate beneficial use to ensure ``fishable'' water quality for
these four water body segments.

5. Request for Comment and Data

EPA believes the above beneficial uses are appropriate considering
the requirements of the CWA and given the time frame which the court
had ordered. Nonetheless, it is possible that information exists which
may further support or refute their attainability or support or refute
the appropriateness of the State's uses. Accordingly, EPA will evaluate
any data which is submitted with regard to the aquatic life uses (i.e.,
cold water biota and salmonid spawning) of the 35 water body segments
as well as the proposed primary contact recreational use. Based on such
information EPA can make a final decision whether the designated uses
in today's proposal are appropriate and required by the Clean Water
Act
s uses. Accordingly, EPA will evaluate
any data which is submitted with regard to the aquatic life uses (i.e.,
cold water biota and salmonid spawning) of the 35 water body segments
as well as the proposed primary contact recreational use. Based on such
information EPA can make a final decision whether the designated uses
in today's proposal are appropriate and required by the Clean Water
Act. To assist the Agency in ensuring that its decisions are based upon
the best available information, the Agency is soliciting information.
To assist commenters the following paragraphs provide guidance on what
information is relevant.
Specifically EPA is seeking information that would assist in
determining whether the beneficial uses identified above are currently
being attained, can be attained, or have been attained since or before
1975; whether natural conditions or features or human caused conditions
prevent the attainment of these uses and cannot be remedied or would
cause more environmental damage to correct than to leave in place; or
whether the controls more stringent than those required by Section
301(b) and 306 of the Clean Water Act would be needed to attain the
uses and would cause substantial and widespread economic and social
impact. Below is a general discussion of the types of data/information
requested by the Agency:
Ambient Monitoring Information: (1) Any in-stream data for any of
the above stream segments reflecting either natural conditions (e.g.,
in-stream flow data or other data relating to stream hydrology) or
irretrievable human-caused conditions which prevent the uses or water
quality criteria from being attained; (2) any available in-stream
biological data; (3) any chemical and biological monitoring data that
verify improvements to water quality as a result of treatment plant/
facility upgrades and/or expansions; and (4) any in-stream data
reflecting nonpoint sources of pollution or best management practices
that have been implemented for nonpoint source control
r
quality criteria from being attained; (2) any available in-stream
biological data; (3) any chemical and biological monitoring data that
verify improvements to water quality as a result of treatment plant/
facility upgrades and/or expansions; and (4) any in-stream data
reflecting nonpoint sources of pollution or best management practices
that have been implemented for nonpoint source control.
Current and Historical Effluent Data: (1) Any data and information
relating to mass loadings from point source discharges of pollutants
such as BOD, NH3-N, chlorine, metals (e.g., As, Cd, Cr, Cu, Pb,
Hg, Ni, Ag, Zn), toxics (e.g., volatile organic chemicals such as
benzene or toluene, acid extractables such as pentachlorophenol, base
neutrals such as anthracene, fluorene or pyrene, and pesticides such as
aldrin, lindane, DDT, dieldrin, endrin and toxaphene); (2) data and
information related to facility or treatment plant effluent quality;
and (3) any information related to releases of pollutants from other
sources such as landfills, transportation facilities, construction
sites, agriculture/silviculture, incinerators, and contaminated
sediments.
Models: (1) Any data or information on analytical models which can
be used to evaluate or predict stream quality, flow, morphology; (2)
any physical, biological or chemical characteristics relating to
beneficial uses; and (3) the results of any such models which can be
used to evaluate beneficial uses.
Economic Data: Any information relating to costs and benefits
associated with facility or treatment plant expansions or upgrades
analytical models which can
be used to evaluate or predict stream quality, flow, morphology; (2)
any physical, biological or chemical characteristics relating to
beneficial uses; and (3) the results of any such models which can be
used to evaluate beneficial uses.
Economic Data: Any information relating to costs and benefits
associated with facility or treatment plant expansions or upgrades.
This information includes: (1) Qualitative descriptions or quantitative
estimates of any costs and benefits associated with facility or
treatment plant expansions or upgrades, or associated with facilities
or treatment plants meeting limits; (2) any information on costs to
households in the community with facility or treatment plant expansions
or upgrades, whether through an increase in user fees, an increase in
taxes, or a combination of both; (3) descriptions of the geographical
area affected; (4) any changes in median household income, employment,
and overall net debt as a percent of full market value of taxable
property; and (5) any effects of changes in tax revenues if the
private-sector entity were to go out of business, changes in income to
the community if workers lose their jobs, and effects on other
businesses both direct and indirect.

E. Temperature Criteria for Threatened and Endangered Species

1. Background

Water quality standards consist, in part, of designated uses and
criteria to protect those uses. States designate uses for aquatic life
to provide protection for a variety of aquatic species which may be
present in their waters. Thermal requirements for these species vary
among species and among different life stages. Providing protection for
these varied species and their temperature requirements can be
accomplished a
ist, in part, of designated uses and
criteria to protect those uses. States designate uses for aquatic life
to provide protection for a variety of aquatic species which may be
present in their waters. Thermal requirements for these species vary
among species and among different life stages. Providing protection for
these varied species and their temperature requirements can be
accomplished a

number of ways. Most commonly, temperature criteria are set to protect
the more sensitive species residing at a site, or subcategories of uses
are established with criteria tailored to address and protect
particular species and/or life stages.
Idaho has three aquatic life designated beneficial uses, cold water
biota, warm water biota and salmonid spawning, with each category
having differing applicable temperature criteria. When designating uses
and applying this categorical aquatic life based approach, Idaho is
required to ensure that the criteria are sufficiently protective to
safeguard the full range of waters in the State to which the uses are
assigned. EPA's review of the criteria assigned by Idaho to its cold
water biota beneficial use designation indicated that the temperature
criteria did not provide adequate protection to some more sensitive
species. Accordingly, EPA disapproved aspects of Idaho's cold water
biota temperature criteria in the June 1996 letter. Idaho has not
revised these criteria to meet EPA's objection.
EPA's approach today is to propose more protective temperature
criteria to apply to Idaho's current cold water biota beneficial use
designation for those segments and river reaches with more sensitive
species. The Agency believes this approach minimizes the impact on
Idaho's current water quality standards while providing the protection
required by the CWA. EPA proposes to modify only the temperature
criteria applicable to the cold water biota beneficial use designation
for specific water bodies [for a list of these waters see Sec. 131.33
ose segments and river reaches with more sensitive
species. The Agency believes this approach minimizes the impact on
Idaho's current water quality standards while providing the protection
required by the CWA. EPA proposes to modify only the temperature
criteria applicable to the cold water biota beneficial use designation
for specific water bodies [for a list of these waters see Sec. 131.33
(c)-(e) of today's proposed rule]. The remaining criteria applicable to
coldwater biota (i.e., turbidity, ammonia, and dissolved oxygen) remain
unchanged. Specifically, today's proposal includes more stringent
temperature criteria for specified waters in Idaho in order to protect
the Kootenai River white sturgeon, five species of aquatic snails
(hereinafter ``snails''), and bull trout. The literature indicates that
Idaho's temperature criteria are inadequate to protect these aquatic
species. EPA is consulting with the FWS concerning the adequacy of the
criteria being proposed today. The following is a discussion of why EPA
determined more stringent criteria were needed and how EPA selected the
criteria being proposed today.
FWS has determined that Kootenai River white sturgeon and five
species of aquatic snails are threatened by extinction in Idaho. In
addition, the bull trout is a candidate for listing as threatened or
endangered. (Although FWS was petitioned to list the bull trout, it has
not yet listed it.) Where a species is likely to be listed EPA assesses
the effects to candidate aquatic species in a similar manner as listed
species. Therefore EPA specifically assessed the impacts of Idaho's
water quality standards to bull trout.
In order to determine whether EPA's approval of Idaho's water
quality standards would adversely effect species listed or candidates
for listing under ESA, EPA reviewed applicable scientific literature
ed EPA assesses
the effects to candidate aquatic species in a similar manner as listed
species. Therefore EPA specifically assessed the impacts of Idaho's
water quality standards to bull trout.
In order to determine whether EPA's approval of Idaho's water
quality standards would adversely effect species listed or candidates
for listing under ESA, EPA reviewed applicable scientific literature.
Based on a review of the literature available to EPA, the Agency
determined that Idaho's temperature criteria were inadequate in
providing protection to Kootenai River white sturgeon, 5 species of
aquatic snails and bull trout. As discussed more fully below, the
scientific literature indicates that temperatures in exceedance of
applicable requirements, along with other habitat parameters, are
threats to each of these aquatic species. EPA determined that
temperatures lower than those currently specified under the State's
designated uses are more appropriate for these species. Based on this
determination, on June 25, 1996 EPA disapproved Idaho's temperature
criteria in certain water body segments which provide habitat for these
species.

2. Kootenai River White Sturgeon

i. EPA's Review
According to the literature and review of the data from the
Kootenai River monitoring programs conducted from 1990 through 1995,
Kootenai River white sturgeon (Acipenser transmontanus) spawned within
a 16 river kilometer (10 river mile) stretch of the Kootenai River,
primarily from Bonners Ferry downstream to the lower end of Shorty's
Island (White Sturgeon: Kootenai River Population Draft Recovery Plan,
U.S. FWS). Kootenai River sturgeon spawn from May through July (58 FR
36379-86; July 7, 1993). Spawning is dependent on, and therefore occurs
when, the physical environment permits egg development and cues
ovulation. Following fertilization, white sturgeon eggs attach to river
substrate and undergo a relatively short incubation period of 8 to 15
days until they hatch (Brannon et. al., 1985)
U.S. FWS). Kootenai River sturgeon spawn from May through July (58 FR
36379-86; July 7, 1993). Spawning is dependent on, and therefore occurs
when, the physical environment permits egg development and cues
ovulation. Following fertilization, white sturgeon eggs attach to river
substrate and undergo a relatively short incubation period of 8 to 15
days until they hatch (Brannon et. al., 1985). Landlocked populations
of white sturgeon normally spawn during the period of peak flows from
April through July (Duke et. al. 1990).
According to the literature, significant modification to the
natural hydrograph in the Kootenai River caused by flow regulation at
Libby Dam is considered the primary reason for the Kootenai River
sturgeon's declining numbers (Apperson and Anders 1991). Since 1972,
when Libby Dam began operating, spring flows in the Kootenai River have
been reduced an average 50 percent, and winter flows have increased by
300 percent over normal. As a consequence, natural high spring flows
required by white sturgeon for reproduction rarely occur during the May
to July spawning season when suitable temperature, water velocity and
photoperiod conditions exist.
Based on recent monitoring studies of Kootenai River flow,
temperature, and fertilized egg distribution, water temperatures
corresponding to estimated spawning dates of Kootenai River sturgeon
range from approximately 8.5 to 14 deg.C and have been estimated to
occur in the May-July time period. During 1970, 1974 and 1980, where
successful, natural recruitment of Kootenai sturgeon is believed to
have occurred, temperatures associated with peak flow events during the
presumed spawning period ranged from 11 to 13 deg.C (U.S. Fish and
Wildlife Service, Columbia River Basin Field Office, ``Rationale for
Reestablishment of Natural Recruitment of Kootenai River White
Sturgeon'')
e period. During 1970, 1974 and 1980, where
successful, natural recruitment of Kootenai sturgeon is believed to
have occurred, temperatures associated with peak flow events during the
presumed spawning period ranged from 11 to 13 deg.C (U.S. Fish and
Wildlife Service, Columbia River Basin Field Office, ``Rationale for
Reestablishment of Natural Recruitment of Kootenai River White
Sturgeon''). Elsewhere, spawning of white sturgeon has been documented
at higher temperatures than Kootenai sturgeon, with reported spawning
in the lower Columbia River occurring at temperatures ranging from 10-
18 deg.C during 1987 to 1991 (Parsley et al., 1993). Parsley et al.
further report that most of the spawning in the lower Columbia River
occurred between 10 and 12 deg.C. Because the Columbia River white
sturgeon may be acclimated to warmer temperatures than those
experienced by sturgeon in the Kootenai River, the applicability of
Columbia River data to Kootenai sturgeon is unclear. It should be
further noted that white sturgeon spawning is cued by other factors, of
which flow is among the most important, and therefore, the lack of
spawning at some temperatures may be due to suboptimal flow conditions
or other important factors. Thus, while the available information
suggests that 8-14 deg.C is a reasonable temperature range to be
considered for maintenance of Kootenai River sturgeon, the current
optimal temperature range for Kootenai River white sturgeon is not
entirely certain.
Partly because of the uncertainty in defining optimal spawning
conditions for Kootenai sturgeon, the FWS and the U.S. Army Corps of
Engineers (COE) are experimenting with agreed upon operational
guidelines for flow releases at Libby Dam during 1997 and 1998 in part,
to obtain more data to determine optimal spawning conditions for
nge for Kootenai River white sturgeon is not
entirely certain.
Partly because of the uncertainty in defining optimal spawning
conditions for Kootenai sturgeon, the FWS and the U.S. Army Corps of
Engineers (COE) are experimenting with agreed upon operational
guidelines for flow releases at Libby Dam during 1997 and 1998 in part,
to obtain more data to determine optimal spawning conditions for

sturgeon. Future studies and monitoring may more accurately determine
Kootenai River white sturgeon spawning requirements.
Data on temperature requirements of other life stages of white
sturgeon is much more limited. An optimum temperature for egg
development of 14 deg.C is reported by Wang et al. (1985 as cited
by Parsley et al., 1993), with elevated mortality occurring at 18
deg.C and complete mortality at 20 deg.C. Temperature tolerance data
for other life stages was not found, although older sturgeon are
reported to inhabit deeper locations in Kootenai River locations with
temperatures ranging from 14 to 20 deg.C (PSMFC, 1992).
In addition to evaluation of the literature, EPA conferred with FWS
and COE staff in determining appropriate temperature values protective
of sturgeon spawning. EPA reviewed data from monitoring efforts by the
COE on the Kootenai River from 1993 through 1997.
ii. Idaho's Temperature Criteria
Idaho's current designated beneficial use for the Kootenai River
from Bonners Ferry to Shorty's Island is cold water biota, which has
applicable temperature criteria of 22 deg.C or less with a maximum
daily average of 19 deg.C Hence, EPA concluded that Idaho's cold water
biota temperature criteria do not provide an adequate level of
protection for Kootenai River white sturgeon spawning.
iii. EPA's Proposed Temperature Criteria
Temperature criteria being proposed for the Kootenai River from
Bonners Ferry to Shorty's Island were derived using EPA's temperature
criteria guidance (``Temperature Criteria for Freshwater Fish: Protocol
and Procedures''; U.S. EPA, 1977)
ta temperature criteria do not provide an adequate level of
protection for Kootenai River white sturgeon spawning.
iii. EPA's Proposed Temperature Criteria
Temperature criteria being proposed for the Kootenai River from
Bonners Ferry to Shorty's Island were derived using EPA's temperature
criteria guidance (``Temperature Criteria for Freshwater Fish: Protocol
and Procedures''; U.S. EPA, 1977). The EPA protocol recommends
expression of temperature criteria in two forms: (1) A short-term
maxima (protection against lethal conditions, usually for a duration of
24 hours), and (2) a mean temperature value (expressed as the maximum
weekly average temperature) that is designed to protect critical life
stage functions such as spawning, embryogenesis, growth, maturation and
development. For sturgeon, sufficient data were available to derive
weekly mean temperature criteria to protect spawning and egg
incubation.
In addition to data sources discussed previously, EPA relied on
communications with relevant Corps and FWS staff.
Based on the information reviewed, EPA is proposing seasonal
minimum and maximum weekly average temperature criteria to protect for
white sturgeon spawning [see Sec. 131.33(d) of today's proposed rule].
Rather than setting temperature criteria based on fixed calendar dates,
the temperature criteria for Kootenai River sturgeon are designed to
protect critical spawning and egg incubation life stages, but allow for
some temporal flexibility as to when such temperatures for spawning and
egg incubation activities can occur. This flexibility is desirable
given known, natural temperature variations that occur at the Kootenai
River site from year to year
alendar dates,
the temperature criteria for Kootenai River sturgeon are designed to
protect critical spawning and egg incubation life stages, but allow for
some temporal flexibility as to when such temperatures for spawning and
egg incubation activities can occur. This flexibility is desirable
given known, natural temperature variations that occur at the Kootenai
River site from year to year. Therefore, such criteria are based on
first establishing a minimum weekly average temperature of 8 deg.C
(believed to be the lower limit for spawning), followed by an 8-week
time period where the maximum weekly average temperature does not
exceed the upper spawning temperature limit of 14 deg.C currently
estimated for Kootenai River sturgeon. Selection of an 8-week
``spawning window'' approximates the length of the spawning period
currently estimated for Kootenai River sturgeon. The maximum weekly
average temperature criterion of 16 deg.C set for weeks 9 and 10
(after achievement of the 8 deg.C minimum temperature) is intended to
protect egg incubation of late spawners based on 1-2 week egg
incubation time reported for Kootenai River sturgeon. The 16 deg.C
maximum weekly average temperature criterion is an EPA inferred
estimate of the threshold for egg incubation based on data reported by
Wang et al. (1985; as cited in Parsley et al., 1993) and reflects
natural gradual warming of water temperatures that will likely occur at
this site during mid to late July.
EPA believes that these temperature criteria in combination with
the time frame regime will provide appropriate protection for white
sturgeon spawning in the Kootenai River while maintaining necessary
flexibility due to natural variability in seasonal temperature regimes
3) and reflects
natural gradual warming of water temperatures that will likely occur at
this site during mid to late July.
EPA believes that these temperature criteria in combination with
the time frame regime will provide appropriate protection for white
sturgeon spawning in the Kootenai River while maintaining necessary
flexibility due to natural variability in seasonal temperature regimes.
While recognizing that other factors besides temperature are also
limiting to a viable population of sturgeon in the Kootenai River
system, EPA determined that revising the temperature criteria in this
known spawning segment was an appropriate and needed measure towards
the protection and conservation of this species.
EPA is soliciting comments and data on the proposed temperature
criteria. Comments are particularly sought concerning: (a) Additional
information on range, distribution, and population of the species; (b)
the relationship between water velocities, temperature and spawning;
(c) appropriate time frames for sturgeon spawning; (d) implementation
issues associated with the weekly moving average and onset of the
maximum weekly average; and (e) appropriateness of both the minimum and
maximum weekly average values.

3. Freshwater Aquatic Snails

i. EPA's Review
EPA reviewed the available scientific literature in order to
determine the water quality requirements for the following five species
of freshwater aquatic snails which are listed as threatened or
endangered under the ESA: the Bliss Rapids snail, the Snake River
physa, Banbury Springs lanx, Utah valvata snail and Idaho springsnail.
According to the 1995 Snake River Aquatic Species Recovery Plan
developed by the FWS, these 5 snails occupy habitat in the middle Snake
River from C.J. Strike Reservoir to American Falls Dam
ies
of freshwater aquatic snails which are listed as threatened or
endangered under the ESA: the Bliss Rapids snail, the Snake River
physa, Banbury Springs lanx, Utah valvata snail and Idaho springsnail.
According to the 1995 Snake River Aquatic Species Recovery Plan
developed by the FWS, these 5 snails occupy habitat in the middle Snake
River from C.J. Strike Reservoir to American Falls Dam. The recovery
area for 4 of the species (Idaho springsnail, Utah valvata snail, Snake
River physa and Bliss Rapids snail) has been delineated in the mainstem
Snake River between river kilometers (rkm) 834-1142 (rivermiles (rm)
518-709). The recovery area for the one remaining species (Banbury
Springs lanx) includes cold-water spring complexes to the Snake River
between rkm 941.5-948.8 (rm 584.8-589.3).
Little is known about the ecology of the listed snail species. A
priority recovery measure in the Recovery Plan is to obtain more data
to describe habitat and life history requirements. EPA reviewed
available literature on the distribution and habitat conditions where
the listed snails are found in the Snake River. From a survey conducted
by Idaho Power in the Middle Snake River from April through December
1995 (Crazier and Myers, 1996) there is data showing that the Bliss
Rapids snail occurred in water temperatures of 7.6 degrees C to 19.8
degrees C, the Banbury Springs lanx occurred in temperatures of 11.8
degrees C to 14.5 degrees C, and the Idaho springsnail was found in
water temperatures of 7.6 degrees C to 19.8 degrees C. The Utah valvata
and Snake River physa were not found in the portion of the river that
was surveyed. The Snake River Recovery Plan (1995) notes that the
Banbury Springs lanx had only been found at that time in waters of 15
degrees C. to 16 degrees C. The Recovery Plan recommends annual average
temperatures below 18 degrees C, however an annual average is not
likely to provide an adequate basis for
ah valvata
and Snake River physa were not found in the portion of the river that
was surveyed. The Snake River Recovery Plan (1995) notes that the
Banbury Springs lanx had only been found at that time in waters of 15
degrees C. to 16 degrees C. The Recovery Plan recommends annual average
temperatures below 18 degrees C, however an annual average is not
likely to provide an adequate basis for

implementation of a temperature criterion.
ii. Idaho's Temperature Criteria
The current Idaho water quality standards designate part of the
recovery area within the Snake River, specifically, water body segment
SWB-10, Snake River from King Hill to Marsing, primary contact
recreation, which has no applicable temperature criteria, and designate
other parts of the recovery area cold water biota, which has
temperature criteria of 22 deg.C or less with a maximum daily average
of 19 deg.C.
Based on the information which was reviewed and conferring with
FWS, EPA determined that the cold water biota temperature criteria do
not provide an adequate level of protection for these five species of
snails. Therefore, on June 25, 1996, EPA disapproved Idaho's
temperature criteria applicable within the specified geographic ranges
or recovery areas for each of the 5 snail species.
iii. EPA's Proposed Temperature Criterion
In order to provide adequate and protective temperatures for the
listed snail species EPA is proposing a maximum daily average
temperature of 18 degrees C in the Middle Snake River from river mile
518 to river mile 709. Additionally, for water body segment SWB 10,
which does not currently have cold water biota designated use, EPA is
also proposing that use as well as a maximum daily average of 18
degrees C temperature criterion. This proposal is based on the limited
temperature information available related to the species occurrence,
the Recovery Plan recommendation, and correspondence between the FWS
and Idaho on April 11, 1997
r body segment SWB 10,
which does not currently have cold water biota designated use, EPA is
also proposing that use as well as a maximum daily average of 18
degrees C temperature criterion. This proposal is based on the limited
temperature information available related to the species occurrence,
the Recovery Plan recommendation, and correspondence between the FWS
and Idaho on April 11, 1997. The FWS letter responded to a State
request for clarification of the Recovery Plan recommendation, and it
again stressed the need for a temperature at or below 18 degrees C as a
level necessary to move toward recovery of the listed aquatic snails.
The letter additionally noted that spring habitats where listed snails
occur adjacent to the Snake River will likely require even lower
temperatures for optimal habitat conditions.
EPA is soliciting comments on the proposed temperature criterion.
Because of the limited information available at the time of this
proposal, EPA is soliciting additional data. Data and information are
sought pertinent to: (1)aquatic snail occurrence in the Middle Snake
River, and (2) refining the habitat and temperature requirements of the
individual species. EPA is also soliciting comments on other options
for applying temperature criteria to the Middle Snake River for
protection of listed aquatic snails.

4. Bull Trout

i. EPA's Review
According to the literature, bull trout (Salvelinus confluentus) is
a species which is considered an indicator of the environmental health
of watersheds and is known to reproduce only in clean, cold relatively
pristine streams.
EPA evaluated the literature and conferred with biologists from the
Idaho Department of Fish and Game, and the Interior Columbia Ecosystem
Management Project. According to the literature, bull trout is a
species requiring a narrow and relatively cold range of temperature
conditions to reproduce and survive. They appear to be one of the most
temperature intolerant species of salmonids
treams.
EPA evaluated the literature and conferred with biologists from the
Idaho Department of Fish and Game, and the Interior Columbia Ecosystem
Management Project. According to the literature, bull trout is a
species requiring a narrow and relatively cold range of temperature
conditions to reproduce and survive. They appear to be one of the most
temperature intolerant species of salmonids. They spawn in late summer
through fall (late August-November) and have a long egg incubation
period (typically lasting from early fall to April). High temperatures
are therefore a concern for migration and spawning in the late summer
and early fall.
Incubation of bull trout eggs requires cold temperatures ranging
from 1 to 6 deg.C and occurs at optimum temperatures of approximately
4 deg.C (ORDEQ, 1994; Weaver and White, 1985; McPhail and Murray,
1979). Specifically, Weaver and White (1985) report 4 to 6 deg.C as
being needed for egg incubation of bull trout embryos in Montana
streams. Further, McPhail and Murray (1979) report 0% to 20% survival
of incubating bull trout embryos at temperatures ranging from 8 to 10
deg.C; 60% to 90% survival at 6 deg.C; and 85-95% survival at 2-4
deg.C, further suggesting 6 deg.C as close to a reasonable threshold
for egg incubation.
Based on EPA's review of the literature, in addition to a review
conducted by the Oregon Department of Environmental Quality (ORDEQ,
1994), a temperature range of 4-10 deg.C is believed to be necessary
to maintain successful bull trout spawning. A temperature range of
approximately 6 to 8 deg.C is believed approximate the optimum
spawning temperatures of bull trout (Idaho Department of Fish and
Game). Optimum temperatures for fry growth have been reported to be 4
deg.C (McPhail and Murray, 1979). For later life stages of bull trout,
temperatures less than 12 deg.C appear to be most suitable for
juvenile rearing and adult migration. Specifically, Shepard et al.
ximately 6 to 8 deg.C is believed approximate the optimum
spawning temperatures of bull trout (Idaho Department of Fish and
Game). Optimum temperatures for fry growth have been reported to be 4
deg.C (McPhail and Murray, 1979). For later life stages of bull trout,
temperatures less than 12 deg.C appear to be most suitable for
juvenile rearing and adult migration. Specifically, Shepard et al.
(1984) report the highest densities of bull trout in Montana streams at
temperatures of 12 deg.C and below, some presence of bull trout at 15
to 18 deg.C and complete absence of bull trout in streams with
temperatures exceeding 19 deg.C. Based on field observations of the
presence of juvenile bull trout in Idaho streams, 12 deg.C also
appears to be a maximum temperature where juveniles are found (Idaho
Dept. Fish and Game). Temperatures between 10 and 12 deg.C are also
reported to be the optimum range for adult migration, which occurs
between bull trout feeding and spawning areas (ORDEQ, 1994).
ii. Idaho's Temperature Criteria
The current temperature criteria applicable to the cold water biota
use classification (22 deg.C or less with a maximum daily average of
19 deg.C) does not provide an adequate level of protection for bull
trout. Therefore, on June 25, 1996, EPA disapproved Idaho's temperature
criteria applicable within geographic ranges where bull trout occur.
iii. EPA's Proposed Temperature Criteria and Bull Trout Distribution
Temperature criteria being proposed for Idaho streams designated as
bull trout habitat were derived using EPA's temperature criteria
guidance (``Temperature Criteria for Freshwater Fish: Protocol and
Procedures; U.S. EPA, 1977)
sapproved Idaho's temperature
criteria applicable within geographic ranges where bull trout occur.
iii. EPA's Proposed Temperature Criteria and Bull Trout Distribution
Temperature criteria being proposed for Idaho streams designated as
bull trout habitat were derived using EPA's temperature criteria
guidance (``Temperature Criteria for Freshwater Fish: Protocol and
Procedures; U.S. EPA, 1977). The EPA protocol recommends expression of
temperature criteria in two forms: (1) a short-term maxima (protection
against lethal conditions, usually for a duration of 24 hours), and (2)
a mean temperature value (expressed as the maximum weekly average
temperature) that is designed to protect critical life stage functions
such as spawning, embryogenesis, growth, maturation and development.
Sufficient data were available to derive temperature criteria as
maximum weekly average temperatures (MWAT) that would be protective of
various bull trout life stages, including spawning, egg incubation,
juvenile rearing and adult migration. Because of the complex life
history of bull trout, EPA is proposing temperature criteria that would
span a calendar year, but that would vary depending on the presence and
thermal tolerances of various bull trout life stages [see
Sec. 131.33(c)(1) in today's proposed rule].
During January and February, the maximum weekly average temperature
(MWAT) criterion is proposed at 4 deg.C to protect optimum
temperatures required for egg incubation. During March, a MWAT of 6
deg.C is being proposed based on data discussed earlier that indicate 6
deg.C approximates a maximum temperature threshold for successful egg
incubation. A MWAT of 8 deg.C during the
proposed rule].
During January and February, the maximum weekly average temperature
(MWAT) criterion is proposed at 4 deg.C to protect optimum
temperatures required for egg incubation. During March, a MWAT of 6
deg.C is being proposed based on data discussed earlier that indicate 6
deg.C approximates a maximum temperature threshold for successful egg
incubation. A MWAT of 8 deg.C during the

month of April is being proposed to account for an expected gradual
increase in stream temperatures during this time period and is
considered to be within the optimum range for juvenile growth. During
May, a MWAT of 10 deg.C is proposed because it reflects an expected
gradual increase in stream temperatures that is likely to occur at this
time and is considered an optimum temperature for adult migration and
juvenile growth. A MWAT criterion of 12 deg.C is being proposed for
the months of June, July and through August 15 to protect against
exceedence of temperature limits reported for juvenile rearing. A MWAT
criterion of 10 deg.C is proposed from August 16 through the month of
September because this temperature reflects the upper range for
spawning reported in the literature for bull trout and bull trout
spawning occurs during this time period. During the month of October, a
MWAT value of 8 deg.C is proposed to maintain optimal temperature
conditions for bull trout spawning and reflects an expected gradual
decrease in stream temperatures. Finally, a MWAT value of 6 deg.C is
proposed for the months of November and December to reflect the limit
for egg incubation and spawning optimum.
At the time of the disapproval, EPA had not identified the exact
geographic areas inhabited by bull trout. EPA believed that Idaho had
the resources to ascertain this information as the Office of the
Governor of Idaho was in the process of developing a bull trout
conservation plan. On July 1, 1996 a final version of the Governor's
Bull Trout Plan was released
incubation and spawning optimum.
At the time of the disapproval, EPA had not identified the exact
geographic areas inhabited by bull trout. EPA believed that Idaho had
the resources to ascertain this information as the Office of the
Governor of Idaho was in the process of developing a bull trout
conservation plan. On July 1, 1996 a final version of the Governor's
Bull Trout Plan was released. This plan identifies 59 key watersheds
which should be targeted for the protection and restoration of bull
trout populations. Although this plan identifies watersheds of concern,
it did not provide the level of resolution which EPA deems necessary in
describing distribution of bull trout.
Today's proposed rulemaking includes a list of water bodies where
revised temperature criteria are needed in order to protect bull trout.
In deriving this list, EPA relied upon bull trout distribution data
from the Interior Columbia Basin Ecosystem Management Project (ICBEMP)
as well as bull trout distribution data from the Idaho Department of
Fish and Game.
Section 131.33(c)(2) of today's proposed rule contains a list of
Idaho water bodies that are known, suspected, and/or predicted to serve
as spawning and rearing areas of bull trout. The ICBEMP's ``Key
Salmonid'' database [footnote 1 to Sec. 131.33(c)(2)], and the Idaho
Department of Fish and Game Digital Bull Trout Distribution Database
[footnote 2 to Sec. 131.33(c)(2)] were both used in deriving this list.
The ICBEMP data are tied to sub-watersheds, also known as ``6th-
code HUCs''. ICBEMP scientists determined criteria to identify sub-
watersheds that represent spawning and rearing areas. Sub-watersheds
identified as migration corridors only are excluded. The resultant sub-
watersheds were overlaid with the digital Pacific Northwest River Reach
File in the EPA Geographic Information System to produce a file of
streams within these sub-watersheds with possible spawning and rearing
activity
determined criteria to identify sub-
watersheds that represent spawning and rearing areas. Sub-watersheds
identified as migration corridors only are excluded. The resultant sub-
watersheds were overlaid with the digital Pacific Northwest River Reach
File in the EPA Geographic Information System to produce a file of
streams within these sub-watersheds with possible spawning and rearing
activity. Only streams with attributed names in the dataset were used
in this process. Some streams with no actual bull trout spawning and
rearing activity are probably included, as only one stream with bull
trout presence was sufficient to cause the entire sub watershed (thus
all named streams within) to indicate spawn and rearing presence from
this database. EPA used the 1994-1995 version of this database.
The Idaho Department of Fish and Game attributed bull trout
distribution data to Pacific Northwest River Reach File segments. Water
bodies coded as having ``known or suspected'' bull trout presence are
contained in the table with a superscript of ``2''. Hence the water
bodies from this database in the table contain areas that may be used
as only migration corridors, as there was no way to specifically
exclude them.
EPA had discussions with FWS on the temperature requirements for
bull trout protection. Additionally EPA consulted with staff from Idaho
Department of Fish & Game as well as numerous biologists familiar with
bull trout requirements and distribution.
Based on the above information, EPA is proposing maximum weekly
average seasonal temperature criteria. These criteria are proposed in
Sec. 131.33(c)(1) of today's proposed rule.
EPA is soliciting comment on both the temperature criteria as well
as the distribution data. Comments are particularly sought concerning
as numerous biologists familiar with
bull trout requirements and distribution.
Based on the above information, EPA is proposing maximum weekly
average seasonal temperature criteria. These criteria are proposed in
Sec. 131.33(c)(1) of today's proposed rule.
EPA is soliciting comment on both the temperature criteria as well
as the distribution data. Comments are particularly sought concerning
(a) affirmation of the presence of bull trout spawning in the current
list of water bodies in section (c)(2) of today's proposed rule; (b)
the adequacy of the proposed methodology for defining bull trout
distribution; (c) whether or not there is a better way to describe the
distribution; (d) site specific temperature data for any of the listed
water bodies; (e) site specific or laboratory temperature data on bull
trout; (f) proposals to address protection of migratory corridors; (g)
identification of water bodies in Sec. 131.33(c)(2) of today's proposed
rule which are not spawning and rearing areas; (h) identification of
additional known water bodies which provide spawning and rearing
habitat; (i) original information which would refine the list down to
stream level as opposed to watershed level along with geographic
identifiers for these streams i.e., USGS hydrologic unit codes; and (j)
other methods for refining the geographic distribution list.

F. Antidegradation Policy

The third component of a State's water quality standards, in
addition to designated uses and criteria to support those uses, is an
antidegradation policy consistent with 40 CFR 131.12. Section 131.12(a)
specifies three levels of protection to be accorded waters. The first
level (commonly referred to as Tier I) requires that existing uses, and
the level of water quality needed to protect such uses, be protected
and maintained [Sec. 131.12(a)(1)]
ds, in
addition to designated uses and criteria to support those uses, is an
antidegradation policy consistent with 40 CFR 131.12. Section 131.12(a)
specifies three levels of protection to be accorded waters. The first
level (commonly referred to as Tier I) requires that existing uses, and
the level of water quality needed to protect such uses, be protected
and maintained [Sec. 131.12(a)(1)]. The second level (Tier II) requires
that water quality in certain high quality waters not be lowered unless
the lowering is found to be necessary to accommodate important social
and economic development [Sec. 131.12(a)(2)]. The highest level of
protection (Tier III) applies to waters identified as ``Outstanding
National Resource Waters;'' water quality in such waters shall be
maintained and protected [Sec. 131.12(a)(3)].
EPA Region X's June 1996 letter disapproved the Tier III portion of
Idaho's antidegradation policy (IDAPA 16.01.02.051.03) because it did
not protect Tier III waters from degradation caused by point sources,
and thus did not provide effective protection for such waters. On
November 14, 1996, the State adopted a temporary rule which added
protection from point sources and addressed EPA's concern. This rule
was effective December 1, 1996. The State formally submitted this
revised rule to EPA for approval by a letter dated March 13, 1997,
which was received by EPA on March 24, 1997. Because of the timing of
this State submission and the work involved in preparing today's
proposal, EPA has not yet completed its approval process on the State's
revision. Accordingly, EPA believes it is still bound by the court's
order to propose a federal water quality standard addressing the
deficiency in section 16.01.02.051.03 of Idaho's 1993 antidegradation
policy.
Therefore, EPA is today proposing a Tier III antidegradation
provision applicable to waters of the United States within the State of
Idaho
or discharges to free-
flowing systems (e.g., streams and rivers) and discharges to open
waters (e.g., lakes or reservoirs). Subsection 060.01.g. allows water
quality within a mixing zone to be exempt from both Idaho's chemical-
specific water quality criteria at 16.01.02.250. and selected narrative
criteria at 16.01.02.200.01., 16.01.02.200.02., and 16.01.02.200.03.
(Idaho's subsection 200.01. prohibits State surface waters from
containing concentrations of hazardous materials that are of
significance to public health; subsection 200.02 prohibits toxic
substances in toxic concentrations; and subsection 200.03. prohibits
deleterious materials in concentrations that impair designated
beneficial uses.)
EPA disapproved subsection 060.01.g. of Idaho's mixing zone policy
because, although the principles identified in the remainder of Idaho's
mixing zone policy are adequate to ensure that the designated uses of
the receiving water are maintained, the language of the policy makes
these principles non-binding. Subsection 060.01. States ``the
Department will consider [emphasis added] the following principles''
(060.01.a-h). Thus, although subsections 060.01.a.-f. and h. contain
explicit language regarding the physical limitations to the size,
shape, and location of mixing zones, which on their face would appear
to protect designated beneficial uses even if narrative criteria are
not applicable, the word ``consider'' indicates that compliance with
subsections 060.01.a.-f. and h. is not mandatory.
Clean Water Act Sec. 303(c)(2)(A) requires States to adopt water
quality criteria to protect designated beneficial uses. EPA's
implementing regulations at 40 CFR 131.11 further clarify that such
criteria ``must contain sufficient parameters or constituents to
protect the designated use.'' There are no exceptions identified, or
alluded to in the CWA or EPA's implementing regulations. Water quality
within a mixing zone is not exempted
States to adopt water
quality criteria to protect designated beneficial uses. EPA's
implementing regulations at 40 CFR 131.11 further clarify that such
criteria ``must contain sufficient parameters or constituents to
protect the designated use.'' There are no exceptions identified, or
alluded to in the CWA or EPA's implementing regulations. Water quality
within a mixing zone is not exempted. By definition a mixing zone is an
area where chemical-specific acute and chronic water quality criteria
can be exceeded as long as a number of other protections are maintained
(Water Quality Standards Handbook; EPA-823-B-94-005a, August 1994).
These other protections are narrative criteria. EPA is not precluding
flexibility in how Idaho chooses to interpret the narrative criteria at
subsections 200.01.-03. EPA has simply disapproved an authorized,
categorical exemption from the narrative criteria in the absence of
other binding requirements in the mixing zone policy.
EPA's regulations at 40 CFR 131.11(a)(2) require States and tribes
to identify methods for implementing narrative criteria. Such methods
need to address all mechanisms to be used by the State to ensure that
narrative criteria are attained. Chemical-specific ambient water
quality criteria are most frequently used to ensure that narrative
criteria and beneficial designated uses are attained. However, when
chemical-specific criteria are absent or do not apply, as is the case
for water quality within a mixing zone, other implementation methods
are needed to ensure the designated uses are attained (WQS Handbook,
Chap. 3). While mixing zones allow the magnitude component of an
ambient water quality criterion to be exceeded, controlling the
exposure component ensures the beneficial designated use is maintained.
Idaho's implementation methods at 060.01.a.-h. would control exposure
by limiting the size, shape, and location of a mixing zone, if they
were mandatory.

2. Federal Mixing Zone Policy for Idaho
Chap. 3). While mixing zones allow the magnitude component of an
ambient water quality criterion to be exceeded, controlling the
exposure component ensures the beneficial designated use is maintained.
Idaho's implementation methods at 060.01.a.-h. would control exposure
by limiting the size, shape, and location of a mixing zone, if they
were mandatory.

2. Federal Mixing Zone Policy for Idaho

To address the above deficiency, EPA considered two options. Under
the first option, EPA would make the requirements of subsections
060.01.a.-f. and h. mandatory. This would protect the water quality
within a mixing zone and ensure that the designated beneficial uses for
the water body as a whole are maintained. However, EPA was concerned
that this approach would disregard site-specific situations that may
warrant some flexibility. For example, stream-specific and discharge-
specific conditions may allow a mixing zone to consume more than 25% of
the volume of stream flow (as specified in 060.01.e.ii.) and still
ensure that the designated beneficial use is attained.
For that reason, EPA also considered a second option that changes
the language at 060.01.g. so as not to exempt water quality within a
mixing zone from the narrative criteria at subsections 200.01.-03. This
approach allows Idaho to retain the discretion on when to rely on the
default implementation methods specified in subsections 060.01.a.-f.
and h., and when to rely on alternative methods to ensure the
designated beneficial use is maintained. Today's proposed rule contains
this second option.
EPA solicits comment on the appropriateness of option 1 and option
2. Does the increased flexibility provided in option 2 leave too much
discretion to the State? Are there other alternatives for protecting
the water quality within a mixing zone to ensure the designated
beneficial uses for the water body as a whole are maintained?

H. Excluded Waters Provision
ule contains
this second option.
EPA solicits comment on the appropriateness of option 1 and option
2. Does the increased flexibility provided in option 2 leave too much
discretion to the State? Are there other alternatives for protecting
the water quality within a mixing zone to ensure the designated
beneficial uses for the water body as a whole are maintained?

H. Excluded Waters Provision

Each State is required to have water quality standards for all
navigable waters in the State. CWA Sec. 303. The term ``navigable
waters'' is defined in Sec. 502(7) of the CWA to mean the ``waters of
the United States, including the territorial seas''. In accordance with
the intent expressed by the legislative history of the CWA, the term
``waters of the United States'' is in turn defined in regulations to
include, inter alia, intrastate waters whose use, degradation, or
destruction would or could affect interstate commerce. 40 CFR 122.2 and
Sec. 232.2(q). This portion of the definition is further explained at
53 FR 20765 (June 6, 1988).
Idaho's standards provide that, unless designated for particular
uses, lakes, ponds, pools, streams, and springs outside public lands
but located wholly and entirely upon a person's land are not protected
specifically and generally for any beneficial use (see IDAPA
16.01.02.101.03.).
The fact that a water may be located wholly on a person's land does
not necessarily preclude it from being a water ``the use, degradation
or destruction of which would or could affect interstate commerce.''
Hence, it is at least theoretically possible that some of these
unprotected excluded waters could be waters of the United States. To
ensure that any such waters receive the protection afforded other
unclassified waters, EPA is today proposing a rule which effectively
adds to the State's
being a water ``the use, degradation
or destruction of which would or could affect interstate commerce.''
Hence, it is at least theoretically possible that some of these
unprotected excluded waters could be waters of the United States. To
ensure that any such waters receive the protection afforded other
unclassified waters, EPA is today proposing a rule which effectively
adds to the State's

excluded waters provision the qualifying phrase ``unless such waters *
* * are `waters of the United States' as defined at 40 CFR
Sec. 122.2.''
This proposal is precautionary in nature. EPA has not identified
any specific waters which would be affected by this change. However,
the language EPA is proposing ensures that, if such waters are later
identified, their beneficial uses will be protected in the same way
uses of other unclassified waters are.

I. Federal Variances

As explained above in Sections C. and D., because of the scope of
rulemaking and the schedule ordered by the District Court, EPA has
relied on a rebuttable presumption approach to designating beneficial
uses and is only able to provide a 30-day comment period. EPA's final
rule will reflect consideration of the data made available to it by the
close of the comment period. However, it is possible that subsequent
data may become available which will be material to the attainability
of the uses involved in today's proposal.
If this occurs, one option available to EPA would be to propose to
revise or withdraw the federal use designation. An alternative
approach, particularly where the information is discharger-specific
and/or it appears that the use in question will eventually be
attainable, is to grant a water quality standards variance applicable
to the discharger in question. EPA has approved the granting of water
quality standards variances by States in circumstances which would
otherwise justify changing a use designation on grounds of
unattainability
larly where the information is discharger-specific
and/or it appears that the use in question will eventually be
attainable, is to grant a water quality standards variance applicable
to the discharger in question. EPA has approved the granting of water
quality standards variances by States in circumstances which would
otherwise justify changing a use designation on grounds of
unattainability. In contrast to a change in standards which removes a
use designation for a waterbody, a water quality standards variance
applies only to the discharger to whom it is granted and only to the
pollutant parameter(s) upon which the finding of unattainability was
based; the underlying standard remains in effect for all other
purposes.
For example, if a designated aquatic life use is currently
precluded because of high levels of metals from past mining activities
which cannot be remediated in the short term, but it is expected that
water quality will eventually improve, a temporary variance may be
granted to a discharger with relaxed criteria for such metals, until
remediation progresses and the use becomes attainable. The practical
effect of such a variance is to allow a permit to be written using less
stringent criteria, while encouraging ultimate attainment of the
underlying standard. A water quality standards variance provides a
mechanism for assuring compliance with sections 301(b)(1)(C) and
402(a)(1) of the CWA that require NPDES permits meet applicable water
quality standards, while granting temporary relief to point source
dischargers.
While 40 Sec. CFR 131.13 allows States to adopt variance procedures
for State-adopted water quality standards, such State procedures may
not be used to grant variances from federally adopted standards
g compliance with sections 301(b)(1)(C) and
402(a)(1) of the CWA that require NPDES permits meet applicable water
quality standards, while granting temporary relief to point source
dischargers.
While 40 Sec. CFR 131.13 allows States to adopt variance procedures
for State-adopted water quality standards, such State procedures may
not be used to grant variances from federally adopted standards. EPA
believes that it is appropriate to provide comparable federal
procedures where, as proposed here, EPA adopts use designations which
rely, at least in part, on a rebuttable presumption that fishable/
swimmable uses are attainable or adopts more stringent criteria for the
State's use designations. Therefore, EPA is proposing to authorize the
Region X Regional Administrator to grant water quality standard
variances where a permittee submits data indicating that an EPA-
designated use is not attainable for any of the reasons in 40 CFR
Sec. 131.10(g) or that a State designated use is not attainable due to
EPA-promulgated temperature criteria. This variance procedure will
apply to standards promulgated by EPA for specific named segments. EPA
does not believe it is necessary to have a variance procedures for
unclassified waters, since Idaho may effectively provide the same
relief by classifying an unclassified water, but invites comment on
this point.
Today's proposed rule spells out the process for applying for and
granting such variances. Because water quality standard variances are
technically revised water quality standards, the proposal requires a
variance to go through the same basic steps as the originally
promulgated standard, that is, publication of the proposed variance,
the opportunity for a hearing, and publication of the final variance.
However, the Administrator is delegating to the Regional Administrator
the authority to propose and grant these variances
re
technically revised water quality standards, the proposal requires a
variance to go through the same basic steps as the originally
promulgated standard, that is, publication of the proposed variance,
the opportunity for a hearing, and publication of the final variance.
However, the Administrator is delegating to the Regional Administrator
the authority to propose and grant these variances. This delegation
should expedite the processing of variance requests, as they will
typically arise in the context of NPDES proceedings being handled by
EPA Region X.
The proposed variance procedures require an applicant for a water
quality standards variance to submit a request to the Regional
Administrator (or his delegatee) with supporting information. To avoid
delays in the permitting process attributable to the variance request,
the proposal requires the applicant to submit the variance request
prior to or concurrent with the NPDES application. EPA seeks comment on
the appropriateness of this timing requirement.
The burden is on the applicant to demonstrate to EPA's satisfaction
that the designated use is unattainable for one of the reasons
specified in 40 CFR 131.10(g). A variance may not be granted if the use
could be attained by all dischargers implementing effluent limitations
required under sections 301(b) and 306 of the CWA and the applicant
implementing reasonable best management practices for nonpoint source
control. EPA will incorporate into the permittee's NPDES permit all
conditions needed to implement the variance.
Under the proposal, a variance may not exceed 5 years or the term
of the NPDES permit, whichever is less. A variance may be renewed if
the permittee demonstrates that the use in question is still not
attainable. Renewal of the variance may be denied if the permittee did
not comply with the conditions of the original variance
tee's NPDES permit all
conditions needed to implement the variance.
Under the proposal, a variance may not exceed 5 years or the term
of the NPDES permit, whichever is less. A variance may be renewed if
the permittee demonstrates that the use in question is still not
attainable. Renewal of the variance may be denied if the permittee did
not comply with the conditions of the original variance.
EPA is soliciting comment on the need for a variance process for
EPA-promulgated use designations, the appropriateness of the particular
procedures proposed today, and whether the proposed variance procedures
are sufficiently detailed.

J. Regulatory Impact Analysis

As explained more fully below in section L (Regulatory Flexibility
Act), EPA's proposed rule does not itself establish any requirements
directly applicable to regulated entities. While implementation of
today's proposed rule may ultimately result in some new or revised
permit conditions for some dischargers, EPA's action today does not
impose any of these as yet unknown requirements on dischargers.
Nonetheless, EPA is attempting, within the limits of these
uncertainties, to make an estimate of the possible indirect costs which
might ultimately result from this rulemaking.
The following is a summary of the proposed methodology being used
for the regulatory impact analysis (RIA) that is being prepared for
this rule. Further discussion will be included in the full RIA, which
will be included in the docket as part of the final rulemaking.
Under the CWA, costs cannot be a basis for adopting water quality
criteria that will not be protective of designated uses. If a range of
scientifically defensible criteria that are protective can be
identified, however, costs may be considered in selecting a particular
criterion within that range.
The designated uses and water quality criteria of the proposed rule
are not enforceable requirements until separate
cannot be a basis for adopting water quality
criteria that will not be protective of designated uses. If a range of
scientifically defensible criteria that are protective can be
identified, however, costs may be considered in selecting a particular
criterion within that range.
The designated uses and water quality criteria of the proposed rule
are not enforceable requirements until separate

steps are taken to implement them. Therefore, this publication of the
proposed rule does not have an immediate effect on dischargers. Until
actions are taken to implement these designated uses and criteria,
there will be no economic effect on any dischargers.
In the short time prior to proposal EPA attempted to assess, to the
best of its ability, compliance costs for facilities that could
eventually be indirectly affected by the designated uses and water
quality criteria of today's proposed rule. As described below, EPA
searched readily available data sources but did not find the
information necessary to accurately estimate these potential costs.
Although the costs are not expected to be significant, EPA has
developed a methodology to estimate the potential indirect cost impacts
on facilities discharging pollutants to waters subject to the numeric
water quality criteria and uses established by this proposal. During
the public comment period EPA will continue to gather additional data
and information on the facilities and waters needed to evaluate use
attainability and the costs attributable to this rule.
EPA is soliciting public comment and supporting data on the
facilities and waters it intends to evaluate as part of the RIA, and on
the methodology it will use to estimate costs associated with
implementation of the proposed rule
A will continue to gather additional data
and information on the facilities and waters needed to evaluate use
attainability and the costs attributable to this rule.
EPA is soliciting public comment and supporting data on the
facilities and waters it intends to evaluate as part of the RIA, and on
the methodology it will use to estimate costs associated with
implementation of the proposed rule. EPA will review the comments and
data provided by the public as well as the information and data it
gathers during the public comment period, and will estimate the
potential costs to facilities as an indirect result of attaining
numeric water quality criteria and uses proposed in this rule. EPA will
include this information as part of the final rulemaking.

1. Use Attainability

As discussed earlier in this preamble, EPA is relying on the
rebuttable presumption that fishable/swimmable uses are attainable in
the water body segments affected by this rulemaking. However, in order
to properly assess the impact of EPA's new use designations in Idaho,
EPA performed a preliminary evaluation to determine if this presumption
is appropriate for all assessed water body stream segments affected by
this proposal.
Although an appropriate evaluation of use attainability should
consider physical, biological, and chemical indicators, the court-
ordered schedule did not provide adequate time to properly evaluate all
indicators. EPA did, however, extract chemical-specific data from the
EPA STORET data base, which houses ambient water quality data for water
bodies throughout the U.S., including Idaho. If EPA were to find that
significant exceedances of water quality criteria (in terms of relative
magnitude above the applicable criteria, duration of exceedance above
the criteria, and the number and types of pollutants) has occurred,
then an upgrade of designated uses might not be appropriate
base, which houses ambient water quality data for water
bodies throughout the U.S., including Idaho. If EPA were to find that
significant exceedances of water quality criteria (in terms of relative
magnitude above the applicable criteria, duration of exceedance above
the criteria, and the number and types of pollutants) has occurred,
then an upgrade of designated uses might not be appropriate.
EPA's STORET extraction included all data on record, and all
pollutants for which EPA's new use designation would result in more
stringent water quality criteria. EPA focused on the 35 water body
segments for which the cold water biota protection designated use will
be applied. Upon extraction, EPA generated summary statistics (minimum,
average, and maximum values on record) for the ambient water quality
within each affected stream segment and compared them to the applicable
water quality criteria to protect the cold water biota use designation.
Most data on record in STORET for the affected water body stream
segments is from the period prior to the mid-to late-1980's. Based on
this data, EPA found periodic exceedances of water quality criteria for
several water body stream segments for several specific parameters.
However, due to the age of most of the data, and the fact that data for
all applicable parameters were not available, EPA could not
definitively conclude that a downgrade for any water body stream
segment affected by this rule was justified. Therefore for purposes of
cost estimates, EPA assumed that the new use designation would apply to
all affected water bodies. EPA is requesting comments and data
regarding the applicability of the new use designation for these water
body stream segments. The affected water body stream segments can be
found in Section 131.33(b), Tables 1-6, within this proposal
ected by this rule was justified. Therefore for purposes of
cost estimates, EPA assumed that the new use designation would apply to
all affected water bodies. EPA is requesting comments and data
regarding the applicability of the new use designation for these water
body stream segments. The affected water body stream segments can be
found in Section 131.33(b), Tables 1-6, within this proposal. EPA is
most interested in the following types of information: instream
characteristics (e.g., mean width/depth, flow/velocity, reaeration
rates); riparian characteristics; biological inventory; biological
potential (e.g., diversity, intolerant species); and ambient pollutant
concentrations for applicable parameters of concern for the stream
segment.

2. Costs

i. Overview of Methodology To Estimate Potential Costs Related to New
Use Designations
The new use designations being proposed by EPA, by themselves, will
have no impact or effect. However, when the water quality criteria to
protect these uses are applied to dischargers through the NPDES permit
program, then costs may be incurred by regulated entities (i.e., point
source dischargers) but these costs can vary significantly because of
the wide range of control strategies available to dischargers. Since
the NPDES permitting authority also has significant flexibility and
discretion in how it chooses to implement water quality criteria,
analysis of potential costs would be difficult to perform for all
potentially affected entities, even if EPA had more time than was
allowed under the Court established time-frame. EPA attempted to
estimate the potential costs attributable to the proposal by developing
detailed cost estimate for a selected subset (a sample) of facilities
from the point source dischargers that may be impacted by the proposed
rule and then used the sample results to extrapolate to the universe of
potentially affected facilities
ime than was
allowed under the Court established time-frame. EPA attempted to
estimate the potential costs attributable to the proposal by developing
detailed cost estimate for a selected subset (a sample) of facilities
from the point source dischargers that may be impacted by the proposed
rule and then used the sample results to extrapolate to the universe of
potentially affected facilities. As explained below, EPA has not been
able to come up yet with a reliable cost estimate due to significant
data gaps. The following discussion addresses the approach which EPA
has attempted to use, and plans to follow if more data is obtained.
The actual impact of the proposed rule will depend upon the
procedures and policy decisions that will be established by the
permitting authority to implement the rule and on which control
strategy the discharger selects in order to bring the facility into
compliance. These procedures and policy decisions established by the
permitting authority typically provide the methods to determine the
need for water quality-based effluent limits (WQBELs) and, if WQBELs
are required, how to derive WQBELs from applicable water quality
criteria. The implementation procedures used to derive WQBELs for this
analysis were based on the methods recommended in the EPA ``Technical
Support Document for Water Quality-based Toxics Control'' (or TSD)
(EPA/505/2-90-001; March 1991). Specifically, a projected effluent
quality (PEQ) was calculated and compared to the projected WQBEL. A PEQ
is considered an effluent value statistically adjusted for uncertainty
to estimate a maximum value that may occur.
The PEQ for each selected pollutant was compared to the projected
WQBEL. If the PEQ exceeded the projected WQBEL, a reasonable potential
existed to exceed the WQBEL. Pollutants with a reasonable potential to
exceed then were analyzed to determine potential costs to achieve the
projected WQBEL.
n effluent value statistically adjusted for uncertainty
to estimate a maximum value that may occur.
The PEQ for each selected pollutant was compared to the projected
WQBEL. If the PEQ exceeded the projected WQBEL, a reasonable potential
existed to exceed the WQBEL. Pollutants with a reasonable potential to
exceed then were analyzed to determine potential costs to achieve the
projected WQBEL.

Prior to estimating compliance costs, an engineering analysis of
how each sample facility could comply with the projected WQBEL was
performed. The costs were then estimated based on the decisions and
assumptions made in the analysis. To ensure consistency and
reasonableness in estimating the general types of controls that would
be necessary for a sample facility to comply with the proposal
(assuming that implementation of the rule resulted in more stringent
discharge requirements), as well as to integrate into the cost analysis
the other alternatives available to regulated facilities, a costing
decision matrix was used for each sample facility. Specific rules were
established in the matrix to provide the reviewing engineers with
guidance in consistently selecting options.
Under the decision matrix, costs for minor treatment plant
operation and facility changes were considered first. Minor, low-cost
modification or adjustment of existing treatment was determined to be
feasible where literature indicated that the existing treatment process
could achieve the projected WQBEL and where the additional pollutant
reduction was relatively small (e.g., 10 to 25 percent of current
discharge levels).
Where it was not technically feasible to simply adjust existing
operations, the next most attractive control strategy was determined to
be waste minimization/pollution prevention controls. However, costs for
these controls were estimated only where they were considered feasible
based on the reviewing engineer's understanding of the process(es) at a
facility
ent of current
discharge levels).
Where it was not technically feasible to simply adjust existing
operations, the next most attractive control strategy was determined to
be waste minimization/pollution prevention controls. However, costs for
these controls were estimated only where they were considered feasible
based on the reviewing engineer's understanding of the process(es) at a
facility. The practicality of techniques was determined based on
several criteria established in the decision matrix. Decision
considerations included the level of pollutant reduction achievable
through waste minimization/pollution prevention techniques,
appropriateness of waste minimization/pollution prevention for the
specific pollutant, and knowledge of the manufacturing processes
generating the pollutant of concern

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_97-10723. Check the current official text before relying on it. Not legal advice.