March 24, 2003

Water Quality Forum
DRCOG - 4500 Cherry Creek Drive South
March 24, 2003
Group Memory

Agenda

12:30 p.m. Agenda Review, Introductions

12:40 p.m. Legislative Update (Jeanette Hillery/all)

1:00 p.m. WQCC Update (Paul Frohardt)

1:20 p.m. 2003 WQF Retreat/EPA Headquarters Availability (Paul Frohardt)

1:30 p.m. Division Update (Mark Pifher)
--Budget issues
--including rules regarding gray water

2:10 p.m. Break

2:20 p.m. Coalbed Methane (Nat Muillo, EPA, Region VIII)

2:50 p.m. Chronic Wasting Disease (Wendy O'Brien, EPA, Region VIII)

3: 15 p.m. Update: Trading Issues Working Group (Pat Nelson)

3:30 p.m. Develop and Agree on Next Steps

3:45 p.m. Adjourn

Legislative Update (Jeanette Hillery)

(As of 3/24/03)

WATER EFFICIENCY BILLS:

SB 87. Sen Linkhart – sets voluntary standards for water efficiency and conservation. Amendment raised the trigger of doing efficiency plans in municipalities from 2,000 AF to 6,000 AF. It is waiting to be heard in Sen, Appropriatiions.

HB 1324, Rep. Harvey, an abbreviated water conservation bill, the water salvage portion was stripped out in House agriculture. Is in front of Local Government 3/24

WATER STORAGE BILLS:

SB 236 Sen Dyer – authorizes bonding authority, which would require a vote of the populace in 2003. Is waiting second reading in the Senate. There is a separate initiative for bonding proposed to go to the voter for $2B – needs signatures.

SB 126, Sen. Entz and Rep. McCluskey – Repeal Proposed Water Projects Provision. Has been through the Senate, is in the house – could do some of the same things 236 does

CWCB AND DNR BILLS:

110 Sen Entz and Rep. Hoppe – CWCB Construction Fund – through Senate and in house – has the forest management, Big Straw and SWSI. Heard in House Ag

HB 1092, Rep. White, Sen Anderson – Management of State Owned Forests – lots of discussion on "deforesting" –and potential water quality issues. Thru house out of Sen Ag and on floor.

HB 1100, Rep. Smith, Sen. Taylor – Natural Resources of Federal Lands – has passed both houses, with amendments from the Senate in conference.

HB 1001, Rep Hoppe, Sen Johnson – Flexible Use of Water Resources. Through the house and on third reading in the Senate on 3/24. The Ombudsman bill.

WATER BANKING – HB 1318, Hoppe, Grossman – Allowing water banking in each water division. Third reading in the house on 3/24

INSTREAM FLOWS – HB 1320 Rippy and McElhany, Drought loans for Instream Flow.

HB 1005, Hoppe, Entz – Extend Division 1 & 3 Augmentation – in conference

HB 1008 Spradley, Kester – Conservation Easement for Water Rights – in Conferency

HB 1146 Spradley Kester – Water Quality Terms in Change Decrees – Lost 3/6 in house

Other:

SB 121 - dealing with rulemaking re: cost-benefit analysis

Federal Legislation:

Good Samaritan Bill - Rep. Udall is introducing a refined bill. Senator Campbell may be introducing a separate "good samaritan" bill.

Water Quality Control Commission Update (Paul Frohardt)

February meeting:

A Rulemaking Hearing was conducted on revisions to water quality standards and classifications on specific water body segments of the Arkansas River Basin.

Commission conducted an Informational Hearing for triennial review of the Pretreatment Regulations. Written comment only rulemaking will be scheduled for deliberations at the September 2003 Commission meeting to consider revisions to this regulation proposed by the Division.

March meeting:

A Rulemaking hearing was conducted on revisions to Biosolids Regulation The Commission agreed that the record will be kept open for additional written input

from the Division regarding the questions raised by the Commission, after consultation with the parties to the hearing. The hearing will be continued to the April 2003 Commission meeting to consider this additional written input.

An update was given on the status of discussions with EPA regarding Colorado's

303(d) List. It was agreed that after receiving an updated request for a

"good cause" letter from EPA, that request will be circulated and three weeks allowed for public comment regarding the appropriate content of a "good cause" letter. The Division will then prepare a draft "good cause" letter taking public comment into account and provide that draft to the Commission. The letter will be posted on the WQCC web site.. The Commission will discuss this matter further at the April meeting.

Final approval was given for the revisions to the Colorado Discharge Permit System Regulations (re: Swine Feeding Operations and general provisions).

Final approval of revisions to the Arkansas River Basin water quality standards from February.

The Commission reviewed the draft notice and proposal for a July 2003 rulemaking

hearing concerning water quality classifications and standards in the Upper and Lower Colorado River Basins.

A Routine Review Informational Hearing regarding Site Approval process regulations was held. There will be a work group convened by the Division, anticipating a rulemaking hearing on this issue in April of 2004.

A triennial review was held regarding control regulations on the Dillon Reservoir. There will be a rulemaking hearing on revisions regarding specific phosphorous trades in September.

The Commission discussed at length the nature of hearings held for the 303(d) listing criteria and the list approval: rulemaking vs. informational and what improvements are needed from last year's hearings. A hearing on the 303(d) listing methodology is planned for September and for the 303(d) list in March of 2004. The staff will be developing a draft meeting structure for the informational hearings and discussing these with the work group . The Commission will make a decision on the structure in their April meeting.

April Meeting:

A Rulemaking Hearing will be held to discuss a Supplemental Rulemaking Petition from the Colorado Oil and Gas Association and Colorado Petroleum Association, (related to the Colorado Discharge Permit System Regulations) to consider the possible postponement of the application deadline for stormwater discharge permits for small oil and gas construction activities.

There will be an Informational Hearing to consider approval of the Water Quality Control Division's proposed submittal of projects for FY03 nonpoint source funds, under section 319 of the federal CleanWater Act.

A Continuation of Rulemaking Hearing will be held for consideration of revisions to the Biosolids Regulation,

An Informational Hearing will be conducted for triennial review of the Confined Animal Feeding Operations Control Regulation, and for review of the Colorado Discharge Permit System Regulations relative to new federal requirements and corresponding changes to the State regulations needed.

A work session is scheduled on the Basic Standards and Methodologies for Surface Water

The Commission will probably not be meeting in May but a decision will be made later depending on need for an additional meeting on the 303(d) list issues.

2003 WQF Retreat/EPA Headquarters Availability (Paul Frohardt)

Geoff Grubbs (EPA Headquarters) is not available during our scheduled WQF retreat on June 26- 27, 2003 but he will be in Denver for another meeting in May and would be available to the WQF.

WQF agreed to change the meeting time/date of the May WQF accommodate Geoff Grubb's schedule. Diane Regas, EPA's, Director of the Office of Wetlands, Oceans and Watersheds will be invited to the WQF Retreat in June. (Paul will follow up and a notice will be sent out in April about the next meeting of the Water Quality Forum.)

Water Quality Control Division Update (Mark Pifher)

The WQCD submitted funding legislation documents to the Joint Budget Committee on March 14, 2003 in response to the decision of the JBC to "100% cash fund" the Water Quality Control Division and with stakeholder input. (These documents are available upon request)

The JBC has decided to go with the long version of the bill that specifies fee structures and does not delegate fee authority to any entity. Please see SB 276 at: http://www.leg.state.co.us/2003a/pubhome.nsf

A fee structure study group will be formed by the Division. This group will analyze issues such as the total amount of funds received and utilized, services provided by the Division that can not be correlated to a specific entity, alternative funding options, cost effective approaches to achieving objects, etc. The Water Quality Forum will be given regular updates on their progress. The study due date is December 1, 2004.

On March 9 – 11, ASIWPCA held its mid-year meeting. A number of timely topics were discussed, with active participation by EPA Headquarters personnel, including Tracey Mehan, Ben Grumbles, Geoff Grubbs, Diane Rigas, Don Brady, Jim Hanlon, Jean Marie Peltier and Chuck Sutfin. The following is a summary of key issues.

CAFO Rule: EPA disseminated its internal CAFO implementation strategy (see attached). EPA is to work with the states in developing "state" implementation strategies. EPA Headquarters will be developing "national quarterly progress reports" on program implementation. It will also be issuing a draft permit and holding training programs on the development of nutrient management plans. EPA will expect CAFO monitoring to demonstrate concrete results.

Monitoring and Assessment: EPA unveiled a document entitled "Elements of a State Water Monitoring and Assessment Program" (March 2003) which identified ten specific monitoring program elements that each state must incorporate into its monitoring program over the next ten years in order to retain Section 106 funding (see attached). EPA Region VIII has already indicated that it will be contacting the Division for purposes of discussing state compliance with this document.

TMDLs and TMDL Research: It was indicated that WERF is performing research on the following TMDL topics: (i) listing and de-listing process; (ii) narrative criteria and TMDLs; (iii) watershed based trading; and (iv) TMDL process improvements. See www.tmdls.net or contact: dcarpenter@wers.org. (The listing/de-listing paper is "in the publication process" at the present time). There were repeated comments by ASIWPCA members on the need for EPA to publish the new "Watershed Rule." Tracey Mehan stated that the ball is not in EPA’s court on this issue (as compared to OMB, the White House, and the Department of Agriculture) but there appears to be some potential finger pointing. EPA does not want to release the rule and then be criticized by the environmental community, nonpoint sources, or other federal agencies.

Nonpoint Source Management: EPA is trying to develop better ways to measure attainment of pollutant reduction goals associated with the Section 319 Nonpoint Source Program. This is in response to OMB criticism. EPA is working with the Department of Agriculture on integrating EQIP projects and Section 319. It may be acceptable to use Section 319 monies to measure "outputs" in an input/output/outcome model where EQIP money produces the outcomes. It is also working on how to measure "pollution prevention." There is a push to continue using Section 319 money for MS4s even though they are technically point sources. EPA maintains a steadfast advocate of point/nonpoint trading (see attached). Mr. Mehan emphasized the need for increased monitoring in order to measure results. In fact, this is now his top priority.

Stormwater: The states can proceed with the issuance of Phase II permits despite the recent 9th Circuit decision on public participation. The 9th Circuit is reconsidering that decision and, in any event, it could be the subject of a further appeal. There is no reason to stop the Phase II process now, especially if a state is not located in the 9th Circuit. (California is having "mass hearings" on groups of permits). Note that Wyoming has developed an "on-line" application process for Phase II. It was also indicated that EPA has previously issued guidance on wet weather water quality standards.

SWANCC: EPA has already received 40,000 comments on the SWANCC ANPRM (many postcards). It wants factual information from the states in order to gauge the potential impact of any future decision, though when pressed as to what this has to do with a "legal" interpretation of the Supreme Court decision, EPA admitted that this information, including the reach of state protective programs, is valuable for other purposes. EPA appears inclined to take a narrow reading of SWANCC. ASIWPCA appears somewhat divided (with California advocating a very narrow reading) and hence its comment letter may be very general in nature, simply questioning whether the agencies need to do anything in response to the Supreme Court decision. (Paul and I recently heard Tom Sansonetti, Assistant Attorney General for the Environment and Natural Resources Division, state that the ANPRM will indeed be followed by a rulemaking proposal later this year).

NPDES Permit Program Audit: EPA has eighteen pending petitions to withdraw state program primacy. In response, it is initiating an "integrity project" (see attached) to identify program deficiencies. This proposal was not well received by ASIWPCA members, who indicated that there are adequate checks and balances already in place (e.g., PPA and Regional EPA office controls). Finally, it should be noted that with reference to state permit issuance backlogs, Tracey Mehan stated that he is prepared to shift from a "number counting" exercise to a risk-based approach, especially in light of state fiscal constraints.

Talent/FIFRA/CWA: EPA is still struggling with how to address the 9th Circuit Talent Irrigation District herbicide application decision and related pesticide control issues as regards the need for NPDES permits. It will try to have additional guidance out shortly (but that story has been heard before). Jean Marie Peltier is fully aware of the Western irrigation ditches/canal’s concern and she will do what she can to protect our interests.

Whole Effluent Toxicity: AMSA distributed the attached memo on issues associated with the recently released WET test methods rule. EPA acknowledged that the "diligence" or "step-wise" approach to WET limit compliance (as compared to single test pass/fail) is still on the table. It is apparent that a suit will be filed soon on the new rule, if only to preserve legal positions as issues are negotiated.

Pollutant Trading: EPA Headquarters remains a strong advocate of pollutant trading. It believes that general permit conditions that reference trading requirements are acceptable. In response to specific questions, EPA’s lead staff person on this issue indicated that: (i) if a state adopts a trading rule, it would probably be considered a modification to state water quality standards that requires EPA approval/disapproval; and (ii) trading of habitat improvements for pollutant loadings " in the context of a TMDL" is acceptable. A trading workshop is being planned for Chicago sometime in July.

EPA’s Strategic Plan: EPA is developing a new Strategic Plan with identified "targets" for the next five to seven years (see attached). The immediate impacts on state programs remains ill-defined.

Additional Research: The USGS is doing contaminant transport model research, with particular emphasis upon nitrogen, phosphorus and pesticides. The Department of Agriculture is also undertaking further research on source tracking for bacteria and pathogens (genetic tracking) and last year issued a report on pharmaceutical contaminants. Additional mercury research (role of sulfur in methylation) is also being undertaken. Mercury research to date indicates that "old" mercury found in sediments is fairly inert/stable and hence controls should focus on "new" sources. EPA is now finalizing its multi-year research plan and is developing a National Water Quality Research Website. EPA research topics will include bio-solids management, BMP effectiveness, and restoration of impaired waterbodies.

Finally, it should be noted that the states shared their budget woes with one another and EPA, though there were few substantive suggestions on how to alleviate current fiscal problems. EPA will take this situation into account in judging state performance.

Coalbed Methane (Nat Muillo, EPA, Region VIII)

Please see the power point presentation posted on this site: "CBM General Present…"

A handout is available upon request.

Chronic Wasting Disease (Wendy O'Brien, EPA, Region VIII)

A power point presentation is available upon request.

Trading Issues Working Group (Pat Nelson)

Pat Nelson is chairing this workgroup

The first meeting will be announced soon

Please see the WQF web site for meeting times and meeting summaries as they become available

Next Steps

The WQF will be notified about the next meeting time and agenda ASAP (Paul Frohardt/Lisa Carlson)