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  1. Water Quality Issues – Hot Topics Ronda L. Sandquist, Esq.

  2. HOT TOPICS IN WATER QUALITY • Nutrient Limits • Reclaimed Water – Reuse • Selenium Standards & Implementation • Barr Lake Milton Reservoir – TMDLs • Potpourri

  3. NUTRIENTS • 80,000 miles of rivers/streams (50%); • 2.5 million acres of lakes, reservoirs and ponds; and • 78% of assessed coastal areas and 1/3 of the nation’s estuaries: ARE NUTRIENT IMPAIRED

  4. NUTRIENTS • POTWs Account For: • 10% nutrient loading for Gulf of Mexico. • 20% of nutrient loading in Chesapeake Bay Watershed.

  5. FLORIDA • Since 1988 EPA has urged states to develop nutrient criteria. • Florida/EPA worked for years to develop numeric nutrient criteria. • EPA sued by Wildlife Federation. • EPA agreed with FDEP’s petition to recommend renewed rulemaking efforts. **November 2011 – EPA approved the draft rule.

  6. NACWA SUMMIT/PAPER • Sources of nutrients and relative contributions should drive selection of options. • Flexibility, including water quality and technology based approaches. • Numeric Water Quality Criteria must be: • Technically and scientifically defensible; • Based on a demonstrated and quantified cause and effect relationship; and • Not used as basis for nutrient controls unless impacts have/will result from excess nutrients.

  7. COLORADO’S NUTRIENT PROPOSAL • A Two-Pronged Approach • Nutrient effluent limits for dischargers – Regulation 85. • WWTFs monitor outfalls and downstream. • Numerical nutrient standards for streams, lakes & reservoirs – Regulation 31.

  8. COLORADO PROPOSED REGULATION 85 – Discharge Limits • Domestic WWTFs discharging prior to May 31, 2012, or requesting preliminary effluent limits prior to May 31, 2012: • For New Domestic WWTFs – the following numeric limit shall apply:

  9. REGULATION 85 - Exceptions • Not required for dischargers who are subject to existing control regulations prior to May 31, 2022. • Exclusions for small/disadvantaged communities or where contribution is de minimus. • Effluent limit variances may be granted. • Trades will be allowed.

  10. REGULATION 85 • Non-domestic WWTFs • Limits for existing dischargers if credible evidence that exceeds TIN or TP limits. • New dischargers must comply if credible evidence. • Stormwater • Data assessment • Stormwater outfalls: or • Downstream receiving waters • Purpose • Identify existing information; • Identify need for additional monitoring; and • Determine approximate nitrogen & phosphorus contribution.

  11. REGULATION 31 – Nutrient StandardsInterim Application may be delayed for 10 years

  12. REGULATION 31 • Prior to May 31, 2022, interim nutrient standards will be considered where: • Waters located upstream of permitted point source dischargers with significant nutrient discharges (PELs issued pre-May 2012); • The lake or reservoir is direct use water supply; or • Other unanticipated circumstances merit adoption of standards.

  13. REGULATION 31 • Direct Use Water Supply Lakes and Reservoirs (DUWS) are those water supply lakes and reservoirs where: • Plant intake located in the lake or reservoir or a man-made conveyance from the lake or reservoir is used to provide raw water directly to a water treatment plant that treats and disinfects raw water; or • The WQCC determines that the reservoir will meet the criteria for DUWS in the future.

  14. COLORADO’S PROPOSAL – EPA RESPONSE • Initial reaction from EPA Region 8 – may not meet CWA requirements. • March 16, 2011 – Stoner Memorandum • Flexibility (creative and cost-effective) • Minimum building blocks • Collaboration

  15. HEARING SCHEDULE FOR REGS. #31 & #85 • Notice publication • December 10, 2011 • Party Status Requests Due • December 20, 2011 • Evidence Due • Proponents: December 9, 2011 • Responsive: January 20, 2012 • Hearing • March 12-14, 2012

  16. RECLAIMED WATER REGULATION REGULATION 84 • Adopted in 2000; system to remove land application from discharge permit program. • Treater: Treats and provides reclaimed water to user for landscape irrigation, fire protection, commercial use, or industrial use. • User: Person who uses reclaimed water.

  17. REGULATION 84 • Letters of Intent • Submitted by Treater. • Demonstrate reclaimed water used for landscape irrigation will be applied at or below agronomic rates. • User plan to comply for each user, including BMPs. • Notice of Authorization • 30 days from Letter of Intent. • To Treater and each applicator to ensure burden of compliance fairly distributed.

  18. CATEGORIES OF RECLAIMED WATER

  19. REGULATION 84 VARIANCES • Benefits to public health or environment do not bear a reasonable relationship to the costs required to achieve compliance.

  20. ISSUES • Treater/User • Regulation says Treater and User may be same entity. • Division reluctant to allow dual role. • User NOAs • Site ownership changes. • Spill Violation Reporting • Contradictory language regarding whose responsibility to report user violations. • Ponds Holding Reclaimed Water

  21. SELENIUM • High background levels of salinity and selenium - Colorado and Arkansas River Basins. • Portions of the Colorado and Arkansas River Basins are listed as impaired [303(d) list] for selenium.

  22. SELENIUM IMPACTS • Mortality, deformities, and decreased reproduction in fish and aquatic birds. • Concerns for endangered fish species. • Bioaccumlative and eco-toxic effects to the environment.

  23. SELENIUM STANDARDS • Colorado Selenium Standards • EPA Revising Selenium Standard to Fish-Tissue Standard USFWS & EPA – Joint Proposal • Standard based on fish that are not in Colorado. • Developing translator for fish tissue for Water Quality Standard

  24. THE SOLUTIONS: • Colorado species-specific calculation. • Site-specific standards for waters. • Interstate Trading. • Expand trading for the entire Colorado River watershed. • Enhance economic incentives through market volume and capital flow.

  25. BARR MILTON WATERSHED - TMDLs • pH TMDL • 303(d) lists both lakes for exceeding pH standard • TP target - 100 ug/L • Lack of scientific basis for pH/TP • Uncertainty in derivation of internal loading of TP • Uncertainty in future effect of alkalinity on pH attainment • Background Load Allocations to be reduced by 75 % through in-canal treatment • End of pipe versus “in lake” limits

  26. BMW - TMDL • D.O. TMDL (Addendum) • 5 mg/L. • CO Water Quality Management and Drinking Water Protection Handbook not followed. • No Stakeholder Participation. • Not an Impaired Water (not on 303(d) List).

  27. BMW - TMDL • Agricultural Management Strategies: • Barr Lake Milton Reservoir constructed by FRICO for agricultural water storage. • Both off-stream reservoirs. • Operators exercise exclusive control overflow. • Agricultural return flows.

  28. POTPOURRI • EPA’s Water Transfer Rule • Friends of Everglades v. EPA, 11th Circuit • Pesticide Discharge Permit • Ag Policy/EC-SAR • EPA Wetlands Jurisdictional Determination

  29. Water Quality Issues – Questions? Ronda L. Sandquist, Esq. Squire Sanders 1600 Stout Street, Suite 500 Denver, CO 80202 Phone: 303.623.3566 Ronda.Sandquist@ssd.com