March 25, 2002

Water Quality Forum
DRCOG - March 25, 2002
Group Memory

Agenda

12:30 p.m. Review agenda, Introductions, Website Update

12:40 p.m. Legislative Update

1:10 p.m. WQCC Update

1:25 p.m. Rule Making Process Group Update

2:00 p.m. Break

2:15 p.m. Aquatic Life Working Group Update

2:30 p.m. Risk-based Permitting Guidance

2:40 p.m. Water Quality Permitting Policy

2:45 p.m. Non point Source Council Update

3:00 p.m. 10^th Anniversary Celebration

3:15 p.m. 2002 Retreat Arrangements/Agenda

3:30 p.m. Working Group Updates

4:00 p.m. Develop and Agree on Next Steps/Agenda Items

4:15 p.m. Adjourn

Legislative Updates (Barbara Biggs)

The following bills should be of some interest:

SB 45 – This bill resolves inconsistent provisions regarding the qualifications of electors for irrigation districts. It lowers the voting age to 18 and limits electors t agricultural and owners within the voting irrigation district. The bill takes out the provision that allows the water conservancy act to determine who is eligible to be a director or an elector for irrigation districts. Sen. Entz and Rep. Rippy sponsor this bill. Signed by the Governor 3-5-02.

SB 46 – This bill adds another member to the Colorado Water Conservation Board from the South Platte drainage. Presently there is one South Platte representative and one Denver representative on the 15-member Water Conservation Board. The bill calls for one representative of the S. Platte drainage above the Henderson Gauge and one from below the Gauge. In effect this would give Northern Colorado interests one representative on the Board. Sen. Andrews, the bill’s sponsor, has withdrawn this bill.

SB 68 – The CWCB is asking that its Board members be paid $50.00/day per diem in addition to expenses. Bill passed Senate Appropriations on 3/15/02.

S. 87 – In this bill Senator Evans provides for a voluntary check off on income tax returns for watershed improvement. The legislation would create a source for needed nonpoint source water quality funding. Unfortunately the bill is unnecessarily complicated by a Colorado Watershed Assembly that would distribute the money in the form of grants restoration and protection of lands and natural resources within the watersheds in Colorado. Bill amended in Appropriations so the Watershed Assembly is in an advisory role on grants. The Water Quality Control Commission and the Colorado Water Conservation Board would set the standards for grant giving, oversee the program and two members from each body would award the grant. Money could not be used by the recipient for political purposes or for litigation. The bill is on the Senate floor for second reading.

SB 148 – Sen. Hillman’s bill is intended to make counties whole in regard to loss of absolute agricultural water rights that move out of the county. The sponsor has agreed to heavy amendment so the bill reads like a Payment in Lieu of Taxes plan. Section 3 of the bill allows counties to tax themselves for water right purchases and litigation remains in the bill. It is scheduled to be heard in Senate Appropriations on March 22, 2002.

S. 156 – The University of Colorado Law School Natural Resources Center apparently initiated an idea of private instream flow rights for donations of absolute water rights. The bill as originally introduced ran into a lot of opposition. Sen. Gordon, the environmentalists and the Water Congress have come to initial consensus on an amendment. The bill passed Appropriations on 3/15/02 and was amended to state that absolute water rights could be donated to preserve and IMPROVE the natural environment to a reasonable degree. There is no "minimum" requirement for donated rights. There is other language forbidding condemnation and clarifying other parts of the statute.

HB 1012 – This bill appropriates $10M from the general fund to the species conservation trust fund. It has no chance of passage in this tight budget year, but the title is broad enough that perhaps some other pot of money could be tapped to fund the ash-short fund that pays for endangered, threatened and declining species habitat improvement programs. It is in House Appropriations Committee.

HB 1024 – This bill creates a permanent water resources interim committee. The CWCB has indicated it would not object if $40,000 were dedicated from its construction fund to the costs of this committee. The bill is in the House Appropriations Committee.

HB 1041 – Rep. Rippey of Glenwood Springs is trying to level the impact of the wild fluctuations that occur in the severance tax fund. Therefore, he would require every program with an operational program under the fund to maintain a two-year balance that cannot be raided by the JBC for general fund purposes in a tight budget year. The state Department of Natural Resources runs the Office of Geology and Minerals and part of the Mined Land Reclamation through this fund. The bill has passed the House and the Senate, and is before the House to concur the Senate Amendment.

HB 1062 – This legislation addresses contractors concerns that they will be paid for the job, and prior to beginning work requires proof of 100% of the money required to complete the project. As well the bill addresses progress payments, for contractors, subcontractors and second-tier subcontractors or suppliers. It addresses retainage and timeframes for payments of retainage. The bill is the brainchild of the Colorado Construction Reform Coalition (American Subcontractors Association of Colorado, Association of Plumbing, Heating and Cooling, etc.) This would seem to take the place of contractual relations, and the legislature may be unwilling to do this. Further, the bill adds an unnecessary layer of forms to completion of a public project. The bill was postponed indefinitely 1/31/01.

HB 1096 – Requires larger counties (over 10,000) or areas with rapid growth (5% or greater for two consecutive years) to create and implement a public works plan. "Public works" includes water and sewer systems. The plan must address how local entity will supply public works from present to 10-years of date of plan. The bill fails to address how this plan would integrate with local water supply planning. Rep. Jameson of Fort Collins is the sponsor. The House Local Government Committee postponed this bill indefinitely on January 23, 2002.

HB 1107 – Rep. Steve Johnson of Fort Collins has again introduced a takings bill that would make government liable for any regulation that diminishes value. In fact is so broad it could be read as including SDC charges or pretreatment requirements for industries that discharge waste to the sanitary sewer. It is likely this bill will suffer the same fate as its predecessor last year and be killed quickly. The bill was postponed indefinitely on 2/28/02.

HB 1110 – The bill allows metropolitan sewage disposal districts, like the Metro Wastewater Reclamation District, to issue revenue bonds without an election in accordance with the terms of the TABOR amendment. It has passed the House and the Senate and awaits the Governor’s signature.

HB 1118 – This legislation was initiated by the Colorado Water Resources and Power Development Authority that oversees the revolving loan funds that result from provisions in the Clean Water and Safe Drinking Water Acts. The legislation operates as follows:

Increases in the Small Water Project limit from $25M to $100M. This would allow the Authority to take advantage of the bond markets without legislative approval.

Expand the definition of "water management facilities" that can be funded under this program to explicitly include the word "sewer." The Authority has operated under the assumption that "sewer projects" are implicitly included in this program, so this part of the act would clarify the language.

Allow the authority to fund emergency projects with revolving loan funds and give the legislature notice so the action can be approved by the next session of the legislature. Too often the loan lists have excluded a needed project, and this language would give the Authority the ability to respond in a timely fashion.

Give the Authority the tools to move money between the revolving loan funds and in order to respond to immediate needs.

Eliminate the state moral obligation pledge that represents potential, unknown liability for the state.

The CWCB may oppose this bill because they want to extract money from the Authority for endangered species funding. It has passed the House and the Senate awaits the Governor’s signature.

HJR 1004 and 1005 are the drinking water and wastewater eligibility lists for revolving loan fund money. Both resolutions have been signed.

HB 1315 – Rep. Shawn Mitchell of Broomfield is sponsor of the anti-terrorist bill. He has agreed to add a clause to exclude security documents from the Public Records Act. The Open Meetings Law already allows executive session meetings to discuss security issues.

HB 1344 – This is the Water Quality Division’s bill to raise permit fees. The bill will include a study of appropriate use designations for effluent dependent and ephemeral streams. The bill passed the House Finance Committee on 2/20/02 and is in Appropriations.

If you need copies of bills, they may be obtained by logging onto the state site at http://www.leg.state.co.us

Federal Level:

Representative Udall has introduced Good Samaritan legislation in the House. Senator Baucus is expected to reintroduce his bill in the Senate. The bills are similar with a key exception that Udall’s House bill has a funding piece for abandoned mine cleanup.

WQCC Update (Paul Frohardt)

The Commission approved listing criteria for the Section 303(d) list for 2002. The informational hearing on the proposed list is in September. The final language is due at the EPA on October 1^st. The Commission approved the Section 305(b) report on the status of water quality in the State. This will be placed on the web site.

The Commission received a briefing from the Individual Sewage Disposal System Steering Committee. Comments were uniformly supportive and the Commission supported the recommendations and encouraged implementation.

There is no April Commission meeting. The May meeting has many information hearings on its agenda:

Design criteria for waste water treatment plants

Policy regarding acting on Section 208 amendments

Sediment Guidance that expires on 6/1/2002. A revised version of the Guidance will be available on April 7^th and the work group meets on April 17^th.

Allocation of Section 319 funds. (It is better timing to allocate the funds in the spring instead of the fall.)

The North Front Range Water Quality Planning Association’s Section 208 Plan

Biomonitoring Guidance (mixing zone provisions)

The following briefings will be provided to the Commission at its May meeting also:

Continuing Planning Process Work Group

Nutrient Criteria Work Group

Temperature Standards Work Group

Development of TMDL’s

The Commission will also plan for its annual June retreat.

The EPA is holding a national symposium on obtaining sustainable uses for the nation’s water in Washington D.C. on June 3 and 4, 2002. This might be of great interest to the Forum as the symposium will cover recreation uses, aquatic life uses, existing uses and the role of economics.)

Rule Making Process Work Group Update

Draft descriptions of the Issues Scoping Hearing, Issues Formulation Hearing and Rulemaking Hearing processes have been posted on the website. The work group will meet again in August and the Commission will hold a work session in September to finalize the rule making process. Below is a summary of the proposed three year rule-making process:

In year one the Issues Scoping hearing will be held. The intent of the scoping hearing is to identify issues that may need to be addressed in the next rulemaking. The Commission may decide to schedule a separate hearing for other issues if needed.

In year two the Issues Formulation Hearing will be held for the basin. This would provide a segment by segment identification of issues and specific determination by the Commission of the issues to be addressed in rulemaking.

In year three the rule-making hearing would be held.

Additional steps taken are:

Created distribution lists to notify regarding hearings

Sent out mailings to over 5000 people

Posted information on the website to get on mailing lists

Received responses from about 500 people

Will provide information to lists via e-mail.

Expanded information on each basin on the website

Will post comments from hearings and EPA rulings on website

Will consider alternative proposals if they are related to the proposals before the Commission

Encourage people to work through the issues in advance

Encourage parties to submit stipulations and agreements in advance of the hearings

Provide a listing of parties who commented on different sections

Encourage everyone to divide up comments on paper by segment so Commission can collate information

Allow for public participation at designated times and at the end of the hearing also

Aquatic Life Working Group Update

On January 15^th the working group started up again. A new biologist will devote one-half his time to this working group. There are 18 names on the list. The focus of this working group is technical in nature and includes people from academia, Denver Environmental Health, an attorney, consulting agencies, the Division of Wildlife, Trout Unlimited, USGS and the Commission. The goal of the group is to use our biological and habitat information more effectively in Colorado.

This is a long term project. The next steps for the working group are to develop a model of biocriteria/bioassessment in the next year for everyone to review. Our next meeting is April 9^th from 1 to 4 p.m. at the Health Department. At that meeting we will discuss the EDAS Database, provide an update on the Working Group and review a time-line.

Feedback:

Develop issue papers on major concepts or approaches.

Is this a regulatory tool or a measurement or descriptive tool? We may ultimately get where it is a regulator tool.

Risk-based Permitting Guidance

We have finalized discussions and are in total agreement about the number of variables that must be considered each time a permit is requested. We will use a tiered approach to criteria. The first tier consists of issues that must be addressed such as anti-degradation and mixing zones. The second tier consists of criteria such as changes to facilities, categorical standards, design flow changes, compliance history, control regulation changes, hydraulic capacity, low flow changes and ambient data changes.

The hearing will be held on May 13^th and a draft of the proposed guidance will be available before then.

Water Quality Permitting Policy

A new policy is being proposed relating to the upstream ambient water quality for permitting purposes.

The following descriptive statistics will be used to characterize upstream ambient water quality for use in determining water quality standards based on effluent limits:

The 85^th percentile of the available data for dissolved metals, and all parameters not specified below.

The 50^th percentile of available a data for Total or Total Recoverable Metals.

The geometric mean of available data for fecal coliform and E. coli.

The 15^th percentile of available data for Dissolved Oxygen.

The range between the 15^th and 85^th percentile for pH.

An informational hearing will be held at the Commission’s May meeting on the proposed policy. The policy will be posted on the web-site in about a week and comments will be received the end of April.

Feedback:

Are we being unduly conservative by moving to an 85^th percentile?

Distinction between dissolved and total is important.

Has there been any review or analysis to determine if highest concentrations occur at low flow? Sometimes they do, sometimes they don’t.

A seasonal approach to limits is something we are willing to look at. We will use tiered limits if it makes sense.

Provide some information regarding the distribution of data. We can’t characterize the distribution.

Add that the change is to make permitting consistent with the basic standards.

Non-point Source Council Update

The Council has 25 members and in February examined two types of projects: base funding projects and incremental projects. The Council used a ranking process and a scoring system to determine which projects should be funded. Key projects include:

Continue the information and education coordinator

Snake River Assessment

Barr Lake

Other education projects

10^th Anniversary Celebration

After the Water Quality Forum’s next meeting on May 20^th we will have a gathering from 5 to 7 p.m. The following members will finalize the celebration plans by late April:

Sara

Dave Holm

Sue Ellen

Barbara

Bahman

Paul

(Information regarding the celebration could be included in the reminder postcard sent out prior to the May meeting.)

2002 Retreat Arrangements/Agenda

The 2002 Retreat will be held on June 26 – 27 in Glenwood Springs at the Hotel Colorado at (970) 945-6511. The cost of the conference is $159.24 per person single occupancy and $106.87 double occupancy. (These rates are inclusive of food, room, tax and gratuity.)

On Wednesday night CRWCD will sponsor a BBQ with jazz afterward in the park. The Agenda Committee will develop an agenda for the retreat by May 1^st. Some ideas for speakers and topics include:

EPA, Diane Regas

Spokesperson from the WGA meeting

Replacing general fund revenues for the Division over time

Mercury issues

Working Groups (numbers, reports, relationships with large group)

Working Group Updates

Updates from the Working Groups can be found on the web-site. (Email updates to Donna.Pachas@ch2m.com.)

Develop and Agree on Next Steps/Agenda Items

The WQF meets again on May 20^th. The following items were suggested for that agenda:

ISDS Steering Committee recommendations

CPP process

Arid West Water Quality Research Study

Briefing on the final Habitat Characterization Study and Extant Criteria Report (ECR) (The Selenium portion is very relevant to this group.)

Update on Mercury Study

Meeting Evaluation:

What Went Well (+)

What Would You Change (▲)

The meeting went well.

Don’t make Paul do everything.

The facilitation was good.

Work group updates aren’t very engaging. (Do we have too many? - retreat topic.)

What is the function of the large group with working groups?