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The AIC Blog connects the association staff to our membership, provides informative updates on state and federal policy issues, and spotlights upcoming AIC training, conferences and events.


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Top tags: City Officials' Day at the Capitol 

New Bacteria Criteria

Posted By Johanna M. Bell, Wednesday, December 14, 2016
Updated: Wednesday, December 14, 2016

EPA, Food and Drug Administration (FDA), and National Institutes of Health (NIH) are jointly updating the 100+ year old bacteria approach for protection of human health.  The agencies anticipate use of a new science based coliphage approach for bacteria and viruses for enhanced protection of food, beaches, and surface waters under the Clean Water Act.  

The joint effort will likely result in new beach closure thresholds and testing methods, and new recreational water quality criteria and testing methods for bacteria and viruses in State Water Quality Standards.  These changes may require new disinfection practices for municipal waste water treatment facilities (e.g. advanced oxidation and UV) so are a particularly important consideration for facilities undergoing or about to embark on facilities’ planning efforts.  

Information on EPA’s coliphage effort can be found HERE


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Supreme Court Refuses to Hear Internet Sales Tax Case

Posted By Justin Ruen, Tuesday, December 13, 2016

The following update on the legal saga surrounding Internet sales tax is from Lisa Soronen of the State & Local Legal Center.

The Quill saga continues…
The Supreme Court refused to hear a case involving the question of whether a Colorado law requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue is unconstitutional. As is always the case, the Supreme Court gave no reason for denying the petition.   

In Quill Corp. v. North Dakota, decided in 1992, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. In 2010 the Colorado legislature passed the law described above to improve sales tax collection. The Direct Marketing Association sued Colorado claiming the law unconstitutionally discriminates against interstate commerce and is unconstitutional under Quill.   

In February 2016 in Direct Marketing Association v. Brohl, the Tenth Circuit concluded the Colorado law doesn’t discriminate against interstate commerce. DMA was unable to point to any evidence that the notice and reporting requirements imposed on out-of-state retailers are more burdensome than the sales tax collection and administration requirements imposed on in-state retailers. Quill does not apply to the law, the Tenth Circuit reasoned, because it “applies narrowly to sales and use tax collection.”

DMA filed a petition for certiorari asking the Supreme Court to review the Tenth Circuit’s ruling that Colorado’s law discriminates against interstate commerce.

The State and Local Legal Center (SLLC) filed an amicus brief encouraging the Court not to decide this case. The brief argued that the Tenth Circuit ruled correctly on the interstate commerce question and that the only “interesting and important” question lurking in this case is whether the Supreme Court should overrule Quill.
In March 2015 the Supreme Court held unanimously that the Tax Injunction Act did not bar the Tenth Circuit (instead of a state court) from deciding whether Colorado’s law was unconstitutional. Justice Kennedy wrote a concurring opinion, which appeared to rely on the SLLC’s amicus brief, stating that the “legal system should find an appropriate case for this Court to reexamine Quill.”
DMA’s cert petition didn’t raise the question of whether Quill should be overturned. However, the SLLC amicus brief pointed out that if the Court is interesting in taking on this question it will be before the Court in no time. “Three States have already taken affirmative steps to challenge Quill head on, passing carefully tailored legislation or administrative rules that precisely frame the question whether [Quill’s] ‘physical presence’ standard should be replaced with an ‘economic nexus’ rule under which sellers can be required to collect state sales tax if they transact a large amount of business in a given state.”

The SLLC urged the Supreme Court to wait and accept one of these cases when they are ready for Supreme Court review and overrule Quill. 

Eric Citron, Goldstein & Russell and Ron Parsons, Johnson Janklow Abdallah Zeiter & Parsons wrote the SLLC brief which the following organizations joined: the National Governors Association, the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association, and the Government Finance Officers Association.  

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AIC Legislative Committee Meeting Summary: Dec. 1, 2016

Posted By Justin Ruen, Monday, December 12, 2016

Welcome & Introductions: The meeting was called to order by AIC Legislative Chair John Evans, Mayor of Garden City, who led self-introductions.

Stormwater Phase II MS4 Permits:  AIC Policy Analyst Johanna Bell reported that a public review draft of a new Phase II municipal stormwater general permit will be released soon by the Region 10 office of the U.S. Environmental Protection Agency (EPA).

The federal Clean Water Act established the National Pollutant Discharge Elimination System (NPDES) program, which requires municipal separate storm sewer systems (MS4s) that discharge into waterways to implement stormwater management programs to protect water quality.  

The Minimum Control Measures required under these permits impact facility planning, operation and maintenance, as well as regulation of development, and include:

·         Construction Site Runoff Control,

·         Storm Water Management for Areas of New Development and Redevelopment,

·         Storm Water Infrastructure and Street Management,

·         Illicit Discharge Management, and

·         Education, Outreach and Public Involvement.

MS4 permits impact city operations and best management practices, and put cities in the position of adopting regulations that impact numerous commercial activities such as construction, new development, and industrial operations.

The first NPDES stormwater permits in Idaho were issued to the Boise urban area in 2000 under Phase I, which included the cities of Boise and Garden City, Ada County Highway District, Ada County Drainage District #3, Boise State University and Idaho Transportation Department (ITD) District 3.  One thing to notice is that these permits are issued to a variety of entities including cities, highway districts, counties, universities, and urban drainage districts.

Since 2006, EPA has issued 16 individual NPDES permits to Phase II urban areas (UAs) including Coeur d’Alene, Nampa/Caldwell, Pocatello, and Idaho Falls.  The next permit will include eight additional entities, including those located in Lewiston and Moscow. 

AIC Executive Director Seth Grigg said that cities face real challenges with these unfunded federal mandates and AIC wants to help identify a sustainable source of program funding.  There are two options: a utility-style fee, or an assessment that would be paid by property owners like assessments levied by drainage districts.  There are strengths and weaknesses to both approaches and it’s not clear at this point which alternative is better.  Either of these options would be better than levying property taxes, where high end residential, commercial and industrial properties end up paying more than their fair share.

Grigg said this is going to be a long-term effort to educate legislators about the issue and work toward an equitable funding solution.   

Use of City Rights-of-Way for 5G Wireless: AIC Counsel Jerry Mason said that the technology for 5th generation wireless (5G) is different than earlier generations and that some of the sites must be closer together because of the spectrum used.  Mobilitie and Crown Castle are seeking to take advantage of the Idaho Constitution’s franchise grant for telephone companies and have sought to obtain service provider certificates from the Idaho Public Utilities Commission, but they are not phone companies. 

Their goal is to locate poles up to 130 feet tall in city rights-of-way for new 5G technology.  Mason said this could result in obstructions to travel and cities should very seriously consider whether these massive poles belong in city rights-of-way.  The first four generations of wireless technology relied on locations on private property and 5G should follow the same path. 

Municipal Water Update: Chris Bromley of McHugh Bromley said that the North Idaho water rights adjudication is proceeding, but there have been delays in Basin 95, which will be divided into two phases.  Phase 1 will include the cities of Athol, Coeur d’Alene, Fernan Lake, Hayden, Post Falls, Rathdrum, and Spirit Lake and will likely be completed in Fall 2017.  Phase 2 will include the city of Plummer and will likely be completed in 2018.    

Bromley reported that there is now greater clarity on the issue of interconnected well transfers, which is a condition reflected in water rights for the City of Pocatello during Snake River Basin Adjudication.   In the case of a basin wide curtailment, this condition allows the city to designate the wells that will pump senior water rights and even use relatively junior wells for that purpose.  This will allow cities the flexibility to best meet their needs.    

Bromley reported that the Director of the Idaho Department of Water Resources has designated a ground water management area (GWMA) for the Eastern Snake Plain Aquifer, which is aimed at developing a plan for the sustainable management of the aquifer.  The GWMA covers a vastly larger area than other existing GWMAs.  Petitions for reconsideration have been filed by cities and the Director must consider those petitions and may have a hearing. 

Twenty-four cities are participating in a mitigation plan under the Surface Water Coalition (SWC) delivery call that expires December 31, 2016.  The participating cities include: Aberdeen, Ammon, Blackfoot, Bliss, Carey, Chubbuck, Declo, Dietrich, Gooding, Hazelton, Heyburn, Idaho Falls, Iona, Jerome, Paul, Richfield, Rupert, Shoshone, Pocatello, Rigby, Ririe, Roberts, Sugar City and Wendell.  Cities have been trying to negotiate a new mitigation agreement with the SWC for over a year, but the coalition has little need to negotiate when they are getting everything they want from the GWMA.

Local Government Purchasing Law Updates: Keith Watts of the City of Meridian and Bob Perkins of Ada County discussed their concepts for possible improvements to the local government purchasing law (Idaho Code Title 67, Chapter 28).  In addition to looking at the procurement thresholds, Watts and Perkins said that they are also interested in raising the threshold for use of a licensed public works contractor from $10,000 to $50,000.  They expressed their desire to get feedback from city officials about what works in the current law and areas that could be improved. 

Idaho School Boards Association Legislative Priorities: Jess Harrison of the Idaho School Boards Association (ISBA) gave an update on the association’s legislative priorities for the upcoming session.  She noted that ISBA will continue working with the Newspaper Association of Idaho on legislation proposed last session to permit local governing boards to discuss acquisition of real property in executive session.  

Harrison noted that the executive session statute is currently being interpreted to require four of the five members of the school board to vote in favor of a motion to go into executive session, which poses real challenges given the large number of school board vacancies.  The association would like to have a school board specific provision requiring only a simple majority of the board to vote in favor of an executive session. 

ISBA is also interested in looking at alternatives to general obligation bonds for school construction funding, and is considering development impact fees.  While impact fees would benefit districts that are growing, they would not be any help in districts where population is steady or declining.

Online Sales Tax: Pam Eaton of the Idaho Retailers Association said that the future of online sales and use tax legislation is likely expanding the definition of “nexus” to include not just brick and mortar stores, but office or administrative buildings, paid employees, shipping or storage facilities, etc.  Eaton said a conservative estimate of additional sales and use tax revenue that would result from nexus legislation would be $30-40 million annually.  

Regulation of Home Rentals: John Eaton of the Idaho Association of Realtors said that his association wants to engage with AIC to develop state legislation protecting homeowners’ rights to rent their homes, while at the same time ensuring local flexibility to regulate in the community’s best interests. 

Safe Routes to School: Erin Bennett of the American Heart Association and Cynthia Gibson of the Idaho Walk Bike Alliance said these groups are working to secure a dedicated state funding source for safe routes to school.  The limited federal funds available are not able to meet the very real needs in Idaho communities for biking and pedestrian routes.   

Medicaid Gap: Liz Woodruff of the Idaho Center for Fiscal Policy said that legislation to help the 78,000 Idahoans in the Medicaid gap appears unlikely at this point.  These people earn too much to be eligible for Medicaid and don’t earn enough to qualify for subsidized health insurance coverage under the Affordable Care Act. 

Woodruff said that we face the very real possibility of congressional repeal of the Affordable Care Act and potentially turning Medicaid into a block grant program.  Closing the Medicaid gap is important for Idaho cities because these people have no access to mental health or substance abuse treatment, which results in challenges for local law enforcement.

There are some legislators who have endorsed the Primary Care Access Program, which would provide up to $30 million in state funding for primary care for those in the gap population.  Woodruff said that primary care is a great starting point, but it is not a complete answer.

North Idaho Building Contractors Association v. Hayden: Brett Boyer, City Administrator for Hayden, said that the city was sued by the North Idaho Building Contractors Association over its sewer capitalization fees.  The Idaho Supreme Court held that the city’s approach to calculating capitalization fees using future build out was unreasonable and sent the case back down to the district court for further proceedings. 

Boyer said it is imperative for cities to use the equity buy-in approach for calculating fees, which divides the present system replacement value by the number of present system users.  The city’s consultant calculated the fee according to the equity buy-in approach and determined that the city’s fee was reasonable.  The case will likely be appealed again to the Idaho Supreme Court.

Transportation Revenue: Seth Grigg reported that the new transportation revenue amounting to $95 million annually is a help, but it is only a down payment on the $250 million annual state and local transportation funding shortfall.  AIC is hoping that the need to reauthorize the state surplus eliminator—which dedicates half of the state general fund surplus to transportation projects—will provide an opportunity for local highway jurisdictions to get a share of the revenue.  An idea with considerable merit is to use these funds for project grants to help local highway jurisdictions pay for highway and bridge projects.

Liquor by the Drink Licensing in Resort Communities: Seth Grigg reported that the City of Driggs will be sponsoring legislation again in the upcoming session to provide nontransferable liquor by the drink licenses for bona fide restaurants in resort communities.  These communities face real challenges because their resident population, which serves as the basis for determining the number of liquor by the drink licenses, is very small relative to their seasonal tourist population. 

Idaho Association of Counties Legislative Priorities: Teresa Baker of the Idaho Association of Counties (IAC) said that a legislative proposal sponsored by Ada County that would have relieved cities of the obligation of providing magistrate court facilities, while taking cities’ fine revenue to provide additional court funding, was tabled by the IAC board. 

Baker noted that IAC will be sponsoring legislation on the following issues of relevance for cities:  defining retention periods for body camera and other types of public safety video recordings; changing emergency dispatchers from the rule of 90 to the rule of 80 for PERSI purposes, which matches police and fire; and changes to clarify the whistleblower statute.

PERSI Hot Topics and Legislation: Don Drum of the Public Employee Retirement System of Idaho (PERSI) said that the PERSI board approved a 1% contribution rate increase at its October meeting.  This increase would take effect July 1, 2018 at the earliest.  Drum said that the increase would be paid 60% by employers and 40% by employees.  The board will look at the fund’s recent investment performance to determine if this increase is really necessary. 

Drum reported that the Professional Fire Fighters of Idaho are sponsoring legislation to provide an unreduced spousal contingent annuitant benefit for public safety (Class 2) members only.  This will not increase contribution rates for employers; the full cost will be paid through a 1.54% rate increase for public safety employees.  This will be mandatory for all public safety employees. 

Jeff Souza, Councilmember for Garden City, reported on a legislative proposal that would ban public sector employers from paying an employee’s PERSI contribution.  He argues that this practice is inequitable because very few employees benefit from it and it serves to mask the true amount an employee is being paid. 

Aerial Fireworks: Boise Fire Chief Dennis Doan said that setting off aerial fireworks is illegal in Idaho, but these fireworks can be easily purchased by certifying that the purchaser is a wholesaler who is taking them out of state.  The wholesaler loophole is getting considerable public and political scrutiny after a 19-year-old set off a 2,600 acre fire in the Table Rock area north of Boise last July that destroyed a home and an outbuilding.   Chief Doan said that the Idaho Fire Chiefs Association will be sponsoring legislation to close the wholesaler loophole.    

Electric Bikes: Seth Grigg reported that legislation has been drafted by Rep. Phylis King of Boise to include electric bikes in state code definitions of bicycles and allow electric bikes anywhere conventional bicycles are allowed.   

Local Option Building Code Exemptions for Owner-Builders: Jerry Mason reported that a Kootenai County Commissioner has proposed legislation creating a local option exemption for an owner-builder of a single-family residence to be exempt from building codes.  The owner-builder would still be required to comply with plumbing and electrical codes.  Mason said it makes no sense to provide an exemption for people with no demonstrated competence. 

Magistrate Court Funding: Mayor John Evans of Garden City said that the cities of Meridian and Garden City are awaiting a ruling from a panel of Ada County district judges who will decide whether one or both cities must construct magistrate court facilities pursuant to a 1994 order that predates the construction of the Ada County Courthouse. 

Evans said this issue has real significance for all cities and suggested that it’s time for representatives of cities, counties and the courts to sit down and find a sustainable funding source for magistrate courts that does not take cities’ fine revenue that helps pay the costs of law enforcement.

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House & Senate Local Government Committees have Major Changes for Upcoming Session

Posted By Justin Ruen, Tuesday, December 6, 2016

The House and Senate local government committees will see important changes, including new committee chairs, for the upcoming legislative session beginning in January. 

These committees are two of the most important from the perspective of Idaho cities and consider legislation on land use and annexation, among other topics.  You can check out the House and Senate committee rosters on the Idaho Legislature's website.

The Senate Local Government & Taxation Committee will now be chaired by Sen. Dan Johnson, R-Lewiston, who takes the reins from longtime Chairman Sen. Jeff Siddoway, R-Terreton.  Siddoway will remain as a member of the committee.

Siddoway moves to chair the Senate State Affairs Committee, which tackles some of the more controversial policy areas including abortion, gun rights, alcohol, gambling and elections.  The State Affairs chair position was vacated due to Sen. Curt McKenzie, R-Nampa, leaving the Legislature to campaign for a position on the Idaho Supreme Court, which he lost to Robyn Brody. 

Johnson is in his fourth term in the Idaho Senate and serves as the Solid Waste Manager for the City of Lewiston.

The Senate Local Government & Taxation Committee will also see the return of Senate President Pro Tem Brent Hill, R-Rexburg.  Hill is a veteran of the committee and served as its Chairman prior to his election as Pro Tem, but has been off the committee for the past two years.  The committee will see two new members: Sen. Jim Patrick, R-Twin Falls, replaces Sen. Jim Guthrie, R-Inkom; and Sen. Mark Nye, D-Pocatello, replaces Sen. Michelle Stennett, D-Ketchum.

The House Local Government Committee will also see a new chair as Rep. Lynn Luker, R-Boise, takes the helm at the House Judiciary, Rules & Administration Committee, which was open due to the primary election defeat of veteran legislator and chairman Rep. Rich Wills, R-Glenns Ferry. 

The House Local Government Committee will now be chaired by Rep. Christy Perry, R-Nampa, who previously chaired the House Ways & Means Committee. 

The Ways & Means Committee, which serves the Speaker of the House and is used to quickly introduce or stop legislation, will now be chaired by Rep. Robert Anderst, R-Nampa.

Six new members will be on the House Local Government Committee, including Rep. Megan Blanksma, R-Hammett; Rep. Priscilla Giddings, R-White Bird; Rep. Mike Kingsley, R-Lewiston; Rep. Dustin Manwaring, R-Pocatello; Rep. Bryan Zollinger, R-Idaho Falls; and Rep. Sue Chew, D-Boise. 


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FDA Ban: Triclosan and 18 Other Anti-Microbial Disinfectants

Posted By Johanna M. Bell, Thursday, November 3, 2016
Updated: Wednesday, November 2, 2016

On September 2, 2016, the Food and Drug Administration banned the use of 19 anti-microbial disinfectants, including Triclosan, in consumer products.  The FDA ban applies to products that are intended to be washed off with water and reflects an important first step for wastewater treatment plants owners and operators that have long sought the ban of these materials. Unfortunately, the recent ban does not apply to consumer hand sanitizers or wipes, or to products intended for use in health care settings. 

Soap manufacturers will have one year to remove these compounds from consumer products, and it is expected that similar product bans will be considered by the FDA in the future. 

The proliferation of consumer antiseptic washes and the corresponding increase in the concentrations of triclosan and other chemicals in wastewater influent have raised many potential issues with wastewater treatment utilities.

Approximately 2 or 3 percent of triclosan and triclocarban from wastewater passes through the treatment process and is discharged with the effluent into receiving waters.  In the aquatic environments that receive wastewater effluent, triclosan attaches to the surface of suspended solids and sediments, and can be released into the water again when the sediments are disturbed. Triclosan and triclocarban have been shown to bioaccumulate and to have detrimental and estrogenic effects on aquatic life, including algae, crustaceans, and fish.  

The presence of triclosan may contribute to failure of whole effluent toxicity (WET) tests, which utilities must conduct on their effluent as part of their Clean Water Act permit requirements. WET tests measure the combined effects on aquatic organisms of all pollutants contained in a wastewater utility’s effluent. Failure of a WET test may result in substantial costs for utilities due to requirements for additional testing and evaluation of the causes of toxicity.

Most of the triclosan and triclocarban contained in wastewater partitions to solids and is therefore present in the biosolids produced by the wastewater treatment process.  Many wastewater utilities use their biosolids as fertilizers or soil amendments, and the presence of triclosan has been detected in crops grown in biosolids-amended soils. Furthermore, for utilities that incinerate their biosolids, carcinogenic dioxins may be released due to the burning of triclosan, making it more difficult for utilities to meet their Clean Air Act requirements.


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EPA Nutrient Control Technologies and Performance Data: Study/Questionnaire

Posted By Johanna M. Bell, Thursday, November 3, 2016
Updated: Monday, November 28, 2016

Nutrients, including nitrogen and phosphorus, are one of the nations’ most difficult and costly water quality challenges.  Excess nutrients can result in eutrophication and harmful nutrient related toxic algae blooms have shut down recreation, irrigation, livestock watering, and potable water treatment facilities in at least 20 states in 2016.  At least 11 "Harmful Algal Bloom Health Advisories" were issued across the state in 2016 for Idaho waters.

EPA recently published a Federal Register notice for a Proposed National Collection Request for Nutrient Removal for Secondary Municipal Wastewater Treatment Technologies with a comment period that ends November 18, 2016.  

EPA is proposing to use Section 308 of the Clean Water Act, usually used for data collection in enforcement cases, to collect two rounds of data from at least 2,500 municipal wastewater facilities nationwide.  Under Section 308, response to the data collection request is mandatory, has a 30 day required response, has similar signatory requirements of Discharge Monitoring Reports and NPDES permit Applications, and will address nitrogen and phosphorus influent and effluent data, removal efficiency, and treatment technology.  

AIC staff coordinated and submitted comments with interested member Cities.  Specifically, it appears as though EPA is seeking to establish a duplicate data collection program.

An alternative approach to the one currently proposed by the EPA is to “mine” the data that already exist in NPDES permits, factsheets, Discharge Monitoring Reports (DMRs), and other sources.  AIC staff and some member Cities note that these data are contained in NPDES permits and Fact Sheets, Discharge Monitoring Reports, Nutrient TMDLs, or Nutrient Treatment Technology and Discharge databases or performance data collected by States or regional water quality agencies.  

Data sources that could meet these needs include Chesapeake Bay nitrogen and performance data, Wisconsin statewide data for implementation of the 1992 Technology based Phosphorus standard, Montana treatment technology and performance data associated numeric nutrient nitrogen and phosphorus criteria, Long Island Sound technology and nitrogen performance data, Neuse River TMDL treatment technology and performance data, Lake Champlain Phosphorus TMDL treatment technology and performance data, and possibly others.  

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Associated Taxpayers Conference Will Cover Local Government Funding & Economic Development

Posted By Justin Ruen, Wednesday, October 26, 2016

City officials are strongly encouraged to register for the 70th Annual Associated Taxpayers of Idaho (ATI) Conference, which will be held Wednesday, November 30 at the Boise Centre in Boise.  

This year’s conference will focus on economic development, tax policy, and local government funding issues.

The one-day conference will kick off at 8:30 a.m. with opening remarks by Idaho Lieutenant Governor Brad Little.  At lunch, Idaho Governor Butch Otter will address the attendees.  

The presentations and panels include:

  • Jared Walczak of the Tax Foundation will cover “How Idaho Compares and Competes.”
  • Cortney Liddiard of Ball Ventures will discuss “Taking the Temperature of Idaho Economic Development.”
  • A panel will discuss local government funding issues, including panelists April Renfro of the Idaho Legislative Audits Division, Ada County Assessor Bob McQuade, Idaho State Tax Commissioner Ken Roberts, and Ashley Goul of Verandah Sportswear.
  • Bob Miller of Albertsons will discuss “Why Idaho? A CEO Perspective”
  • Gregory Casey of Veritas Advisors will present “In Transition or In Trouble: Our Great Republic Post 2016.”

The ATI conference is always very informative and provides a great opportunity to network with the many legislators and other state and local officials in attendance.


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Idaho Phase II Municipal Stormwater: New Permit and New Rules Imminent

Posted By Johanna M. Bell, Monday, October 24, 2016
Updated: Wednesday, October 26, 2016

In Idaho several different types of public entities own and/or operate regulated municipal stormwater systems.  These regulated public entities include cities and counties; local highway districts, and the Idaho Transportation Department (ITD); colleges and universities; drainage districts which convey urban storm water runoff; and others.  

Some Idaho public entities' stormwater discharges have had federal NPDES permit coverage since 2000 (i.e., Boise and Garden City urbanized areas), other areas' discharges have been covered by federal permits since 2007 and later (i.e., Pocatello, Idaho Falls, Coeur d'Alene, Post Falls, Middleton, Nampa, and Caldwell urbanize areas).  And the list of public entities in growing urbanized areas that require permit coverage continues to expand (i.e., Lewiston and Moscow). 

Stormwater permits issued to cities typically include Stormwater Management Plans for the control of construction site runoff, permanent stormwater management controls for new development and redevelopment, good housekeeping and pollution prevention measures for existing stormwater infrastructure, removal and reduction of unauthorized and illegal stormwater discharges, education outreach and public involvement for water quality protection, discharge water quality monitoring, and, in some cases, special conditions for discharges to impaired surface waters. 

Section 402(p)(3) of the Clean Water Act states that municipal permits for stormwater discharges "shall require controls to reduce pollutant discharges to the maximum extent practicable," including best management practices (BMPs) and other provisions as determined to be appropriate for pollutant control. Under this provision, the permitting authority has the discretion to include requirements for reducing pollutants in stormwater necessary for compliance with water quality standards.

EPA has long maintained that water quality-based BMPs, implemented through iterative processes, are appropriate for the control of pollutants in municipal stormwater and may require expanded or more specific BMPs in permits when they are necessary to achieve stormwater waste load allocations and attain water quality standards.

Last year the Ninth Circuit Court approved a settlement agreement requiring the EPA to revise the rules that govern Phase II stormwater permits for small MS4s.  These new rules are due by November 17, 2016.

The September 2015 settlement stems from a 2003 decision by the Ninth Circuit Court of Appeals where the court told EPA to “take appropriate action” to address the “procedural issues” with its small municipal stormwater policy and related Phase II stormwater rules.  In 2004 the EPA issued interim guidance in response to the court’s remand, but did not pursue a formal rulemaking.

In response to the 2015 settlement the EPA issued proposed revised rules in January 2016.  The proposed rules require small cities to detail their strategies for controlling stormwater runoff before they can get permit coverage, and require permitting authorities to provide the public with the opportunity to review, submit comments, and request a public hearing on the proposed strategies.  The permitting authorities must then make a final determination on Clean Water Act compliance – all before authorizing the stormwater discharge(s). 

Meanwhile, back in Idaho, we are anticipating a public review draft of the Idaho Phase II Municipal Stormwater General Permit soon. Similar to the combined single general permit for Phase 1 and Phase II published last April, the pending Phase II general permit is expected to represent a shift from how EPA has been doing municipal stormwater permitting (i.e., going from individual permits to a single general permit).  EPA is expected to propose waterbody-specific measures necessary to comply with Idaho Total Maximum Daily Loads (TMDLs), including monitoring, assessment activities, and other additional pollutant-specific controls.

Comments were submitted to Idaho DEQ by AIC on the EPA Region 10 pre-draft municipal stormwater permits on September 14, 2016.  

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Idaho Pollutant Discharge Elimination System: Opportunity for Input and Collaboration

Posted By Johanna M. Bell, Tuesday, October 18, 2016
Updated: Wednesday, October 26, 2016

The Idaho Department of Environmental Quality (DEQ) is developing a program to address water pollution by regulating point sources that discharge pollutants to waters of the United States. In 2014, the Idaho Legislature revised Idaho Code to direct DEQ to seek Environmental Protection Agency’s (EPA) authorization for a state-operated pollutant discharge elimination system permitting program. The current program is operated by EPA and called the National Pollutant Discharge Elimination System (NPDES) program. The state program will be called the Idaho Pollutant Discharge Elimination System (IPDES) program.  Current authorizations provided by the Idaho Legislature can be found in Idaho Statutes Title 39, Chapter 1, Sections 175-A through 175-E.

On August 31, 2016, DEQ submitted to EPA for review a program application petitioning for the authority to become the discharge permitting authority in Idaho.  There are multiple steps toward state primacy and development of a program. Two of these steps include preparation and development of IPDES rules and guidance documents. Currently, DEQ is in the process of developing additional IPDES Effluent Limit Development Guidance (ELDG) and is seeking comments. 

Association of Idaho Cities members are meeting with DEQ and other Idaho stakeholders through Negotiated Rule Making and will submit comments on individual draft guidance sections, and on the final draft guidance by late 2017.  

AIC member comments on Section 1 and 2 of the Draft Guidance were submitted following an October 7th stakeholder meeting. AIC's input to date are that the Draft ELDG needs to address challenges unique to Idaho. Most of Idaho’s communities are small, with limited technical resources and limited funds. Even the monitoring requirements can be challenging and expensive. The guidance is anticipated to help permit writers connect the issues and have monitoring, effluent limits, and compliance frequencies that make sense. Data collection requirements must be directly linked to the permitting regulations, aligned from top to bottom, and be coordinated at the appropriate scales (i.e., state-wide or basin-wide) in order to conserve resources. 

Other data analysis issues raised in AIC member comments for Section 1 and 2 of the Draft Guidance are for DEQ to:

  • include the use of "blank" samples to help determine if lab contamination is present;
  • eliminate all requirements that use lab methods not officially approved by the EPA;
  • include appropriate analytical tools and methods to address missing data, outliers, and samples where the results are below the "minimum level of quantification" (ML) or "method detection limit" (MDL);
  • acknowledge and address situations where a parameter does not have an MDLs or MLs; and
  • include the use of "sufficiently sensitive EPA-approved analytical methods" when quantifying the presence of pollutants in a discharge and for analyses of pollutants or pollutant parameters under a permit.

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Integrated Water Management: Water Efficiency for Cost Savings, Other Benefits/Challenges

Posted By Johanna M. Bell, Friday, October 14, 2016
Updated: Wednesday, October 12, 2016

Water efficiency is an essential element in the development of potable, municipal irrigation, stormwater, reuse, and water resource recovery infrastructure.  Water efficiency can also lead to cost savings, energy savings, and significant cost savings to rate payers.  With respect to security, water efficiency can increase a region's drought resilience and ensure adequate water supply for future growth.

The 2010 USGS National Water Use Report indicates that residential Idaho water use is 168 gallons/capita/day (gpcd); nearly twice the United State average residential water use of 89 gpcd.  The high residential use in Idaho suggests there are significant indoor and outdoor residential water efficiency opportunities in Idaho.

For many Idaho municipalities, indoor and outdoor water efficiency improvements are projected by the Idaho Department of Water Resources to be 30 - 50% or more.  

Municipal case studies from arid regions in the western United States demonstrate that water efficiency can provide cost savings and other benefits, plus some challenges for water and wastewater operations.  Benefits include smaller potable and wastewater infrastructure (treatment, distribution, collection, etc.), energy savings, water supply for future growth, drought resilience, and significant cost saving to rate payers.

Challenges include decreased sewer collection line flows, solids accumulation, increased hydrogen sulfide generation, and corrosion and increased bacterial levels in residential and commercial building potable water systems that are not properly designed or have long residence times.  

As the Draft Sustainability Section for the State Water Plan proposed by the Idaho Department of Water Resources points out: "Stewardship of Idaho’s water resources begins with the realization that the water resources of the State are not inexhaustible and therefore it is necessary to manage, administer, and take action to sustain, maintain and enhance the resource."  

AIC is gathering input and perspectives on the various water supply issues facing Idaho municipalities and is planning a Water Summit for October 25th.  For more information, please visit the AIC Calendar or contact 



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