Aspen,

Colorado

5.29.14

Stormwater

Management

Construction

Dewatering

Wetlands and

Waters of the

US

Water Rights

STORMWATER

MANAGEMENT & WATER

QUALITY PERMITTING IN

WESTERN COLORADO

ANDREW EARLES, PH.D., P.E., CPESC

& JONATHAN KELLY, P.E.

WRIGHT WATER ENGINEERS, INC.

EPA

Rulemaking

Status

Effluent

Limitation

Guidelines

Strategies

for

Compliance

STORMWATER

MANAGEMENT

2013 PROPOSED NATIONAL RULEMAKING TO

STRENGTHEN THE STORMWATER PROGRAM

Key EPA proposed rulemaking actions:

Develop performance standards for new and

redevelopment sites

Explore options for expanding MS4 program;

Evaluate options for municipal program to reduce

discharges from existing development;

Evaluate establishing a single set of minimum

measures requirements for regulated MS4s;

Explore options for establishing specific requirements

for transportation facilities;

Evaluating additional provisions specific to the

Chesapeake Bay watershed.

Summarized from: http://cfpub.epa.gov/npdes/stormwater/rulemaking.cfm

“EPA is updating its

stormwater strategy to

focus now on pursuing a

suite of immediate

actions to help support

communities in

addressing their

stormwater challenges

and deferring action on

rulemaking to reduce

stormwater discharges

from newly developed and

redeveloped sites or other

regulatory changes to its

stormwater program .”

EPA UPDATE

MARCH 2014

“EPA will provide

incentives, technical

assistance, and tools to

communities to encourage

them to implement strong

stormwater programs;

leverage existing

requirements to strengthen

municipal stormwater

permits; and continue to

promote green

infrastructure as an

integral part of stormwater

management.”

EPA UPDATE

MARCH 2014

Photo Courtesy Wenk

Photo Courtesy Wenk

New Construction General Permit (CGP)

Issued in February 16, 2012

Emphasis on Effluent Limitations (non-numeric)

Turbidity numeric limits removed from permit.

Earliest limits will be included 2017.

Water-quality Based ELGs (applies to sensitive

waters impaired and high quality streams)

Strict timelines on maintenance and stabilization.

EPA Construction General Permit &

Effluent Limitation Guidelines (ELGs)

Numeric Turbidity Limits NOT Included

Many of these changes will be

coming to Colorado

CGP establishes minimum

requirements for State Permit

CGP 2012 – NEW ELEMENTS

Eligibility for treatment

chemicals (flocculants)

Effluent guidelines for erosion

and sediment control

Buffer zone requirements

Water quality based effluent

limits

Qualifying storm … now 0.25”

Strict timelines on

maintenance/repairs and

corrective actions

Corrective action reports

EROSION & SEDIMENT CONTROL

REQUIREMENTS--BUFFERS

BUFFER REQUIREMENTS

• Need to maintain 50 feet of buffer

• Designated stormwater control not surface waters (drainage swales, inlets, stormwater basins etc.)

Step 1: Estimate Sediment Removal Efficiency from 50-foot Buffer.

Step 2: Design Controls that Match Sediment Removal Efficiency of 50-ft

Buffer.

Step 3: Document How Site-Specific Controls Will Achieve Sediment

Removal Efficiency of 50-ft Buffer and which model was utilized.

BUFFER ALTERNATIVE

BUFFER EXCEPTIONS

No discharge of stormwater through the buffer zone

Where no natural buffer exists, unless you remove portions of

pre-existing development.

Linear projects with restricted right-of-way (some requirements

still apply).

Small residential lots < 1 acre (minimum measures from menu)

404 permitted activities

STABILIZATION

Initiate soil stabilization

“immediately”

Complete stabilization

within14 days

Semi-arid/arid exceptions

provided SWMP

documentation (still need temporary non-veg)

Conditions beyond control

Sensitive waters exceptions (303d/TMDL/high quality) –

7 days

STABILIZATION CRITERIA

Uniform vegetation (no large

bare patches)

70% or more of the density

of pre-construction coverage

Vegetation must be perennial

Provide cover after seeding

(mulch and rolled product)

Arid and semi arid areas

allowances (seed must

provide veg in 3 years

and cover for erosion 3 years)

“Final stabil ization is reached when all ground surface disturbing

activities at the site have been completed and uniform vegetative

cover has been established with an individual plant density of at least

70 percent of pre -disturbance levels, or equivalent permanent,

physical erosion reduction methods have been employed .”

Stabilization must be permanent

ALL disturbed areas must be stabilized

Alternatives must follow good practices

Alternatives

Permanent Pavement & Buildings

Hardscape

Geogrid/TRM

NON-VEGETATIVE STABILIZATION

Xeriscape

Compacted and Stabilized

Unpaved Driving Surfaces

Maintenance and Corrective Actions

• New EPA Inspection

Template

• New EPA Corrective Action

Form

• Differentiation between

repairs/maintenance versus

corrective actions

• Shorter timelines for each

to be completed within.

24 hrs – document problem and complete work

7 days – substantial modifications

7 days – SWPPP modification

14 days – document corrective actions taken

Sign and certify the corrective action report

CORRECTIVE ACTION TIMELINES

Colorado CDPS Stormwater Discharge

Permit Associated with Construction

Activities

• State permits that have been issued since the

CGP was issued vary in requirements. State

permits are approved by EPA and can differ

from the CGP.

• Administratively extended the permit in July

2012.

• Proceedings to update permit not yet initiated.

• Anticipate new language on ELGs.

What Can You Do?

• Get Involved in the Permit Process.

• Stakeholder meeting – CDPHE should have at

least one stakeholder meeting during the time

period where they are writing the permit.

• Public Comments – CDPHE will post the draft

permit and accept comments on the permit.

ACHIEVING COMPLIANCE

KNOWLEDGE

•Well developed SWMP involving the contractor/operator,

developer/owner, and the consultant or in-house stormwater

expert

•Dynamic SWMP with continuous updates

•Training

•Anticipated Phasing

•Budgeting appropriately (i.e. increased

maintenance and stabilization costs)

COMMUNICATION

•Clearly identified Stormwater Team

(roles and responsibilities)

ACHIEVING COMPLIANCE

DOCUMENTATION

• Proactive maintenance and field

adjustments

• Updating paperwork –SWPPP and

Maps

• Keeping training records and

updated associated records and

plans (e.g, SPCC, MSDS

sheets/chemical inventories etc.)

SIMPLIFYING

COMPLIANCE

IMPROVED GUIDANCE FOR

CONSTRUCTION IN WATERWAYS

Permit

Updates

Remediation

Permit

Dewatering

under

Stormwater

Permit

CONSTRUCTION

DEWATERING

New applications for coverage:

Construction Dewatering (COG-

070000)

Remediation Activities

Discharging to Surface Water

(COG-315000)

Remediation Activities

Discharging to Groundwater

(COG-316000)

Remediation Permit if criteria

of Construction Dewatering

Permit are not met

RECENT PERMIT UPDATES

THREE TYPICAL SCENARIOS

Scenario 1—Site not in close proximity to known

contamination or closed or active LUST - permit coverage

approved under the Construction Dewatering Permit

Scenario 2—Site is within ½ mile of closed LUST or 1 mile of

active LUST

Must collect & submit BTEX samples

If BTEX < ½ Water Quality Standards, coverage under

Construction Dewatering Permit with BTEX monitoring &

reporting requirements

Scenario 3—In area of known contamination or BTEX > ½ WQS

Remediation Permit

Metals analyses must be performed for proper analytical

forms (Total Recoverable, Potentially Dissolved, and/or

Dissolved).

Analytical methods for metals must measure below, or equal

to, the Practical Quantitation Limit (PQL).

Analytical methods and PQLs selected for VOCs and S -VOCs

must be in accordance with permit.

The sampled water must be representative of the source

water.

REMEDIATION PERMIT SCREENING

Common Mistakes

• Incorrect forms analyzed

• Incorrect detection limits

• High solids/disturbed sample

For Construction

Dewatering General Permit

discharge 303(d) listed

stream for As, Fe, Mn or

Se, the applicable

parameter is added to the

required sampling

parameters; however, the

value is report only with no

numeric limit.

Discharges under

Remediation Permit must

meet either groundwater

standards or stream WQS.

DISCHARGES TO IMPAIRED STREAMS

E. coli required as sampling

parameters if construction

activities include work on

sanitary sewer lines or

sewage treatment

Under Remediation Permit,

there is a possibility of

requesting a variance (e.g.

on arsenic and selenium) if

you can demonstrate

background levels are higher

than the standards.

OTHER CHANGES & NUANCES

New

requirements for

discharge

log/record-

keeping

Chemical

additions for

treatment can

trigger

Remediation

Permit

OTHER CHANGES & NUANCES

Current

Rule-making

Ditches

Maintenance

WETLANDS AND

WATERS OF THE US

SECTION 404 OF THE CLEAN

WATER ACT

Jurisdictional extent of

Section 404

Existing regulations

2014 EPA Proposed Rule

Permitting for projects

regulated by Section 404

CURRENT DEFINITION OF WATERS OF THE

U.S.—AGENCY GUIDANCE

The agencies will assert

jurisdiction over:

Traditional Navigable

Waters (TNW)

And adjacent wetlands

Non-navigable

tributaries to

TNW that are relatively

permanent waters

(RPW)

And adjacent wetlands

WETLANDS AND WATERS

Wetlands are areas with:

Hydric soils

Hydrophytic vegetation

Wetland hydrology

Waters include:

Rivers, streams, creeks,

canals, ditches,

washes

Harbors, lakes, ponds,

reservoirs

**Delineated based on

presence of ordinary high

water mark

Wetland

CURRENT DEFINITION OF WATERS OF THE

U.S.—AGENCY GUIDANCE

The agencies will decide jurisdiction

over the following using “fact -specific

analysis” of significant nexus :

Non-navigable tributaries that are not

RPWs

And adjacent wetlands

Wetlands that are adjacent to, but not

abutting RPW tributaries to TNWs

Wetland

Wetland

Significant Nexus

Adjacent

Wetland

Significant Nexus

CURRENT DEFINITION OF WATERS OF THE

U.S.—AGENCY GUIDANCE

The agencies will generally not assert

jurisdiction over:

Swales or erosional features with low

volume, infrequent, or short duration

flow

Ditches excavated wholly in and

draining only uplands that do not

carry relatively permanent flow

Irrigation Ditch

?

?

2014 EPA AND CORPS PROPOSED RULE

All tributaries to traditional navigable waters are

jurisdictional

Geographically isolated features may be

jurisdictional if a “significant nexus” is present

Ditches are jurisdictional if they don’t qualify for an

exclusion:

Do not contribute flow to a Water of the U.S.

OR

Constructed and draining only upland areas and do

not have perennial flow

Wetland

Wetland Adjacent

Wetland

2014 EPA and Corps Proposed Rule on Waters of the U.S.

Wetland

Significant Nexus

Irrigation

Ditch

PERMITTING FOR REGULATED

PROJECTS

Agricultural/maintenance

exemptions

Nationwide Permit Program

Individual Permits

WATER RIGHTS

Prior Appropriation Doctrine

“First in Time, First in Right”

When supply is limited, earlier water rights (senior rights) can fill their

water needs before others (junior rights).

Beneficial Uses

Commercial, Domestic, Dust Suppression, Hydropower, Fire

Protection, Fish & Wildlife, Flood Control, Industrial, Instream Flow

(aquatic habitat), Irrigation, Municipal, Recreation, Snowmaking,

Stock Watering

WATER RIGHTS IN COLORADO

Appropriation vs. Adjudication Difference between the time you put the water to beneficial use (or

establish intent) and when you file for a water right in Water Court.

Conditional vs. Absolute Difference between a proposed use of water and actually diverting water

and putting it to beneficial use.

Diversions vs. Depletions Difference between the amount taken from the stream and the net

effect on the stream (i.e., are there return flows to the stream?).

Quantification of return flows (e.g., irrigation efficiency) and timing (e.g., lagged groundwater).

Augmentation Plans Decreed in Water Court and allow for junior water rights to divert out of

priority by replacing depletions to the stream.

Can operate under a Substitute Water Supply Plan approved by the State Engineer’s Office while waiting for decree.

WATER RIGHTS TERMINOLOGY

State Engineer’s Office

Water Commissioner – administers based upon priority (i.e.,

administration or Holt number) and seniority and location of calling

right.

Headgates & Measuring Devices

Headgates allow for the curtailment of out -of-priority diversions.

Flumes, weirs, etc. allow for the flow measurement.

Without these devices, water commissioner can shut down diversions.

RIVER ADMINISTRATION

Shoshone vs. Cameo Calls Shoshone Hydropower Plant: senior, non-consumptive right for 1,250

cfs that controls upper basin and benefits users in the Roaring Fork drainage.

Cameo: Grand Valley irrigation rights above Palisade that are usually administered at 1,950 cfs; primary calling right for Roaring Fork drainage.

Transmountain Diversions Fry-Ark Project diverts in headwaters of Frying Pan and Roaring Fork

Rivers to Arkansas River basin.

Senior Irrigation Ditches, Instream Flows, and

Recreational In-Channel Diversions

Bottom line: Augmentation plans in the upper watershed will usually have a combination of replacement supplies to cover both local and mainstem calls.

ROARING FORK RIVER

COLORADO RIVER WATER RIGHTS

Effective stormwater management in the mountains is

challenging & requires specialized expertise

Changes in permits

Opportunities to comment

Strategies for efficient compliance

Potential changes in wetlands and waters of the US &

opportunities for restoration/banking

History & knowledge of water rights in Roaring Fork and

Colorado River basins

CLOSING REMARKS

THANK YOU FOR COMING!

WRIGHT WATER ENGINEERS, INC.

Andrew Earles, Ph.D., P.E. , CPESC

2490 W. 26 th Ave., Ste. 100A

Denver, Colorado 80211

(303) 480-1700

aearles@wrightwater.com

&

Jonathan Kelly, P.E.

818 Colorado Avenue, Suite 307, PO Box 219

Glenwood Springs, Colorado 81602

(970) 945-7755

jkelly@wrightwater.com