Basic Standards Implementation Work Group

January 26, 2004
Meeting Summary

Triennial Review Work Group

Paul Frohardt reviewed the agenda.

The first agenda item concerns the Division's proposal to implement the aquatic life strawman proposal developed during the 309 Study process on a provisional basis through pilot projects. Presumably, some language is needed in the Basic Standards to allow site-specific aquatic life use classifications. It appears that the actual regulatory change can be fairly simple. There is an issue of whether or not the refined designated uses should be limited to pilot project areas and aquatic life uses or left more broad. Paul reviewed two alternative approaches. The first would tie the adoption of refined uses on a basin-by-basin basis tied to specific pilot project proposals. The alternative language was a general authorization for site-specific, refined uses limited to either just aquatic life uses or potentially broader applicability.

Melinda Kassen asked what happens if pilot projects go forward and in 2010 the Commission decides not to go forward with a revised aquatic life use classification system or chooses a system other than the Division's "strawman" as proposed during the 309 Study. Paul responded that he assumed that the Commission would determine during the 2010 Basic Standards Triennial Review process how to proceed and deal with any refined uses under pilot projects versus any modifications to the aquatic life use classification system (if any changes are actually adopted at that time). Melinda responded that she felt that pilot projects approved by the Commission should automatically be reviewed during the appropriate basin hearing after the 2010 Basic Standards RMH - similar to how temporary modifications are handled.

Bob McConnell asked what other uses beyond aquatic life might be considered. Paul Frohardt responded that recreation uses might be an example. Mark Pifher suggested that refined uses might be appropriate for drinking water supply uses (for example when drinking water supply uses are limited to alluvial wells rather than surface water diversions) or agriculture uses (livestock watering versus crop irrigation). Bob McConnell expressed concerning regarding the scope of any guidance that might be needed to implement pilot projects, especially if the scope goes beyond simply aquatic life. Sarah Johnson also raised the issue that the 309 Study limited the consideration of refined uses to aquatic life uses, and she was concerned about broadening the concept to other uses that hadn't been identified during the 309 Study process.

Katie Fendel raised issues regarding the data that could be collected during the pilot project. Sarah Johnson responded that simply limiting the refined uses to aquatic life uses wouldn't have any effect on the data collected.

There appeared to be consensus that a review of refined uses adopted under pilot projects should take place after the 2010 RMH, but any implementing guidance would need to give the regulated community adequate assurances regarding reliance on permit limits to allow pilot projects to go forward.

Generally, the group felt that for the time being refined uses should focus on aquatic life, but the potential of including recreation uses will be discussed at a future meeting that will focus on a number of recreation uses.

The Work Group then moved on to discuss the Division's draft criteria for selecting pilot projects.

Eileen List raised questions concerning item 1 on the Minimum Pilot Project Study Requirements. For example, could QA/QC consider the protocols established by the Monitoring Council. Bob McConnell talked about referencing existing EPA and State guidance concerning development of site-specific standards and UAA's. He felt that it might be difficult for entities proposing a pilot project to develop an "expected condition" for the pilot project segments.

Melinda Kassen stated that she felt that at a very minimum any pilot project must demonstrate that it will protect the existing aquatic assemblage. She felt that intrinsic in these pilot projects is the assumption that there is no intent to improve the existing aquatic life. She believed the protection of existing uses needed to be more clear in the study criteria.

Dave Moon stated that he believed a UAA was necessary to document any refinement of use classifications. Dave also stated that any pilot project should state up front why a refinement of aquatic life uses is necessary and how a particular pilot project will provide information that might be useful in other basins or statewide.

Steve Glazer indicated that impacts on downstream segments needed to be considered.

Maureen Dudley (for TU) expressed concern that it was inappropriate to go forward with pilot projects before we have defined "expected condition." Paul Frohardt stated his understanding that as part of the 2005 Basic Stds RMH, the Commission would adopt a definition of expected condition and criteria for selection of pilot projects.

Maureen Dudley expressed concern regarding what's established in regulation in 2005. She also objected to defining "expected condition" in the 2005 RMH when we don't have the data to support what expected condition actually is. Paul outlined what's expected to occur in 2005 prior to broad changes being made in 2010. Mark Pifher expressed his concern that if we took the position of waiting until additional data is collected the process will never move forward.

Steve Canton provided a brief overview of a proposed pilot project for the SP CURE portion of the South Platte Basin.

Comments on the Division's draft Selection Criteria should be e-mailed to Mark Pifher (mark.pifher@state.co.us) by Groundhog Day (2/2/04). The Division will distribute a revised draft of the Criteria by the end of February. Further discussion of pilot projects will occur in conjunction with the discussion of Net Environmental Benefit concept at the April 19 meeting (1-4 on 4/19/04 in the Sabin Room at CDPHE).

De-Coupling Aquatic Life Class 2 and Use-Protected Designations: Paul Frohardt reviewed the existing Basic Stds provisions for designating water bodies as use protected under the State's antidegradation regulation. The first test is a water quality test that identifies 12 water quality criteria and provides that if any 3 of these 12 constituents exceed TVS, the water body shall be use protected. Due to a lack of data at that time, the Commission also made an assumption that water quality in Class 2 aquatic life segments was not expected to be as good as Class 1 water bodies, so there was an automatic short cut that assigned a use protected designation to all Class 2 aquatic life streams.

Steve Glazer raised the issue of providing additional protection for high-quality waters. Sarah Johnson also expressed concern that the Class 2 aquatic life use protected designation mixes two prongs of the CWA - the first being the designated use approach that is intended to ensure water quality to protect uses; the second being the antidegradation provisions that are specifically intended to protect water quality that is better than necessary to protect uses. Melinda Kassen also echoed Sarah's comments and Steve's concern regarding high mountain headwaters streams that are currently use protected due to the fact that they are too small and too steep to support fish and have thus been assigned a Class 2 aquatic life use.

Dave Moon stated that EPA regulation requires waters that are subject to antidegradation based upon water quality. Specifically, tier 2, or reviewable, waters have water quality that is better than necessary to protect the fishable/swimmable uses.

Barbara Biggs stated that if the aquatic life use classification and antidegradation designation were to be de-coupled, the Division's proposal in the aquatic life strawman proposal that effluent dominated/effluent dependent streams be designated use protected should be included as a criterion. Ms. Biggs and Mr. Frohardt agreed that this was similar to the concept already in the Basic Standards related to water quality better than necessary due to a significant point source discharge that is better than necessary. Ms. Biggs felt that the Division's reference to effluent dependent/dominated waters was a clarification of the existing regulation.

Ms. Biggs also suggested the group consider some water quality test that references ambient quality within 85% of the TVS for specific parameters as currently set out in the Basic Stds.

Paul Frohardt distributed a suggested revision that is attached to the meeting summary as Attachment A.

Melinda Kassen felt that Paul's proposal was inconsistent with the CWA. Katie Fendel responded that she disagreed and felt that it was consistent with EPA's antidegradation regulations that provide that waters are reviewable if water quality is better than necessary to protect fishable/swimmable, which is consistent with the Frohardt proposal.

Jerry Raisch commented wondering if there was a way to structure a proposal that would accommodate Steve and Melinda's concerns related to cold-water aquatic life class 2 streams without changing the whole scheme of antidegradation we currently have. Katie Fendel suggested another criterion specifically related to cold water class 2 streams. Melinda objected based on the hearing records for that time period.

Sarah Johnson suggested modifications to the Frohardt proposal to assign a use protected designation for any segment with 2 or more constituents on the 303(d) list. However, she indicated that she wants to give more thought to how this relates to having an "and" versus an "or" between the A test and the B test.

Paul summarized the discussion and identified 5 alternatives that had been put forth, including simply deleting 31.8(2)(b)(i)(A) or simply maintaining the current system. Written comments on the Frohardt proposal or alternative proposals are due to Paul Frohardt (paul.frohardt@state.co.us) by 2/17/04. Paul will meet with the Division and develop a revised alternative by March 1, 2004, for discussion at the March 22 meeting, along with discussion of the existing temperature standard.

A schedule for meetings beyond May 2004 was discussed. The next meeting is 2/11/04 from 1-4 in the Sabin Room at CDPHE. The Grand Junction mixing zone issue will be postponed from March 8 to May 5. A refined schedule of future meetings and assigned topics, including the list of new dates beyond May, is attached to this meeting summary.

Attachment A

Option for Revision of Use-Protected Provisions
January 26, 2004

31.8(2)(b):

(b) Use-Protected Designation

These are waters that the Commission has determined do not warrant the special protection provided by the outstanding waters designation or the antidegradation review process.

(i) Waters shall be designated by the Commission use-protected if any of the criteria below are met, except that the Commission may determine that those waters with exceptional recreational or ecological significance should be undesignated, and deserving of the protection afforded by the antidegradation review provisions of section 31.8(3):

(A) The use classifications of the waters include aquatic life cold or warm water class 2, except as provided in subsection (iii) below;

(B) The existing quality for at least three of the following parameters is worse than that specified in tables I, II and III for the protection of aquatic life class 1, recreation class 1 and (for nitrate) domestic water supply uses:

Table I: dissolved oxygen, pH, fecal coliform or E. coli

Table II: chronic un-ionized ammonia, nitrate

Table III: chronic cadmium, chronic copper, chronic lead, chronic manganese, chronic selenium, chronic silver, and chronic zinc

The determination of existing quality shall be based on adequate representative data, from samples taken within the segment in question. Data must be available for each of the 12 parameters listed; provided, that if fecal coliform or E. coli samples from within the segment are infeasible due to its location, and a sanitary survey demonstrates that there are no human sources present that are likely to impact quality in the segment in question, fecal coliform data will not be required. "Existing quality" shall be the 85th percentile of the data for un-ionized ammonia, nitrate, and the dissolved metals, the 50th percentile for total recoverable metals, the 15th percentile of such data for dissolved oxygen, the geometric mean of such data for fecal coliform and E. coli, and the range between the 15th and 85th percentiles for pH; or

(C) The water body is subject to significant existing point source discharges and the quality currently is maintained better than standards only because the treatment achieved by the existing dischargers exceeds requirements of federal and state law and might not be maintained at that level in the future.

(ii) In addition, waters may be designated use-protected even though none of the preceding criteria apply if the Commission determines that due to the presence of substantial natural or irreversible human-induced pollution for parameters other than those listed in section 31.8(2)(b)(i)(B) the quality of the waters in question should not be considered better than necessary to support aquatic life class 1 and recreation class 1 uses.

(iii) Waters classified as aquatic life cold or warm water class 2 shall not be designated use-protected solely on the basis of such classification if:

(A) There is adequate representative data available from samples taken within the segment in question for each of the 12 parameters listed in subsection 31.8(2)(b)(i)(B), above, and that data shows that the existing quality for at least 10 of the 12 parameters is equal to or better than that specified in tables I, II and III for the protection of aquatic life class 1, recreation class 1 and (for nitrate) domestic water supply uses; and

(B) The segment in question has not been listed, and does not qualify for listing, on Colorado's Section 303(d) List of Water-Quality-Limited Segments Requiring Total Maximum Daily Loads.

Attachment B

Basic Standards Triennial Review Work Group
Proposed Schedule for Discussion of Issues
Updated January 30, 2004

Meeting Date	Topics
November 12, 2003 1:00 p.m. to 4:00 p.m. Sabin Room	· Review of issues and priorities · Discussion of work group process · Scheduling of dates and topics for upcoming meetings.
December 9, 2003 9:00 a.m. to noon DRCOG	· Statewide organic chemicals standards. · Table value criteria for antimony (water + fish); arsenic (water supply; fish ingestion); uranium (water supply). · Fecal coliform to e coli transition (time permitting).
January 13, 2004 9:00 a.m. to noon Sabin Room	· Follow-up discussion regarding issues introduced at the previous meeting. · Recreation classification issues: distinguishing basis for class 1a; creation of a "class 2 with class 1a standards" option; numeric clarity and narrative odor standards. · Fecal coliform to e coli transition.
January 26, 2004 9:00 a.m. to noon DRCOG	· Aquatic life classifications pilot project option (regulatory language; criteria for selecting pilot projects; guidance regarding information needed to support a pilot project proposal). · "Net environmental benefit" provisions. [to be moved to some later meeting] · Options for decoupling aquatic life class 2 and use-protected designations.
February 11, 2004 1:00 p.m. to 4:00 p.m. Sabin Room	· Additional discussion regarding the following issues, and potentially other issues from earlier meetings that require more discussion: · MCLs v. health-based standards, and related implementation issues. · WQCD uranium proposal v. current basin-wide uranium standards. · Fecal coliform to e coli transition. · Numeric clarity standards for recreation use classifications.
February 23, 2004 1:00 p.m. to 4:00 p.m. Sabin Room	· Follow-up discussion regarding issues from previous meetings? · Revised table value criteria for ammonia. · Revised table value criteria for cadmium.
March 8, 2004 9:00 a.m. to noon Sabin Room	· Follow-up discussion regarding issues introduced at the previous meeting. · Wastewater Utility Council issues: secondary drinking water standards; domestic water supply point of compliance; total ammonia standard. · Water effect ratios through water quality standards v. discharge permits.
March 22, 2004 9:00 a.m. to noon Sabin Room	· Follow-up discussion regarding issues introduced at the previous meeting. · Possible revised temperature standards. · Follow-up discussion regarding options for decoupling aquatic life class 2 and use-protected designations.
April 7, 2004 1:00 p.m. to 4:00 p.m. Sabin Room	· Follow-up discussion regarding issues introduced at the previous meeting. · Recreation classification options to address the previous "class 2 with class 1a standards" option and distinguishing default classifications.
April 19, 2004 1:00 p.m. to 4:00 p.m. Sabin Room	· Follow-up discussion regarding aquatic life classifications pilot project option (regulatory language; criteria for selecting pilot projects; guidance regarding information needed to support a pilot project proposal). · "Net environmental benefit" provisions.
May 5, 2004 1:00 p.m. to 4:00 p.m. Carson Room	· Follow-up discussion regarding issues introduced at the previous meeting. · Grand Junction's mixing zone issue.
May 24, 2004 9:00 a.m. to noon Sabin Room	· Potential "catch-up" meeting, to discuss issues from earlier meetings that require more discussion.
June 9, 2004 1:00 p.m. to 4:00 p.m. Sabin Room	· To be determined.
July 8, 2004 1:00 p.m. to 4:00 p.m. Cleere Room	· To be determined.
July 26, 2004 1:00 p.m. to 4:00 p.m. Sabin Room	· To be determined.
August 12, 2004 1:00 p.m. to 4:00 p.m. Cleere Room	· To be determined.
August 31, 2004 (tentative) 1:00 p.m. to 4:00 p.m. Sabin Room	· To be determined.
September 14, 2004 (tentative) 1:00 p.m. to 4:00 p.m. Sabin Room	· To be determined.
September 27, 2004 9:00 a.m. to 12:00 p.m. Sabin Room	· To be determined.
October 18, 2004 1:00 p.m. to 4:00 p.m. Sabin Room	· To be determined.

Additional meeting dates will be scheduled as needed.

The issues regarding possible new table value criteria for copper and selenium will be scheduled for work group discussion only if and when EPA moves forward with proposed criteria for one or both of these parameters. The above table includes all of the other issues from the October 2003 Potential Issues List identified as "priority issues" and "other issues to explore", except for the correction of typographical and clerical errors. Possible discussion of the "lesser priority" issues from this list will be revisited as of March 2004.

If EPA's Implementation Guidance for Ambient Water Quality Criteria for Bacteria is finalized, work group members may identify additional issues relating to bacteria standards that would need to be scheduled for work group discussion.

As noted on the above table, it is assumed that most issues would be introduced at one work group meeting, where the Division and/or other interested persons would set forth proposals for revisions or identify principal options for revisions. The issues introduced at one work group meeting would then be discussed further at the following meeting, or other future meeting, after work group participants had had an opportunity to reflect on the proposals or options suggested.

The above schedule is intended as a starting point for work group discussions. Some of the above issues would likely be discussed further in work group meetings following October 2004, depending on how discussions progress.