Water Quality Issues – Hot Topics

Ronda L. Sandquist, Esq.

HOT TOPICS IN WATER QUALITY

1. Nutrient Limits

2. Reclaimed Water – Reuse

3. Selenium Standards & Implementation

4. Barr Lake Milton Reservoir – TMDLs

5. Potpourri

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

NUTRIENTS

• POTWs Account For:

– 10% nutrient loading for Gulf of Mexico.

– 20% of nutrient loading in Chesapeake Bay Watershed.

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.

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.

COLORADO’S NUTRIENT PROPOSAL

• A Two-Pronged Approach

1. Nutrient effluent limits for dischargers – Regulation 85.

– WWTFs monitor outfalls and downstream.

2. Numerical nutrient standards for streams, lakes & reservoirs – Regulation 31.

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:

PARAMETER PARAMETER LIMITATIONS

Annual Median 95th Percentile

Total Phosphorus 1.0 mg/l 2.5 mg/l

Total Inorganic Nitrogen as N3

10 mg/l 20 mg/l

PARAMETER PARAMETER LIMITATIONS

Annual Median 95th Percentile

Total Phosphorus 0.7 mg/l 1.75 mg/l

Total Inorganic Nitrogen as N3

7 mg/l 14 mg/l

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.

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.

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

NUTRIENT VALUES

  PHOSPHORUS NITROGEN CHLOROPHYLL A

Waterbody Type     

Direct Use Water Supply

Lakes and Reservoirs, cold, >25 acres 20 ug/L 410 ug/L 8 ug/L

5 ug/lLakes and Reservoirs, warm, >25 acres 80 ug/L 850 ug/L 20 ug/L

Lakes and Reservoirs, <=25 acres RESERVED RESERVED RESERVED

Rivers and Streams – cold 110 ug/L 1,250 ug/L 150 mg/m

Rivers and Streams – warm 170 ug/L 2,010 ug/L 150 mg/m

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.

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.

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

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

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.

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.

CATEGORIES OF RECLAIMED WATER

Approved Uses Category 1 Category 2 Category 3

INDUSTRIAL

Cooling Tower Allowed Allowed Allowed

Concrete Mixing and Washout Allowed Allowed Allowed

Dust Control Allowed Allowed Allowed

Soil Compaction Allowed Allowed Allowed

Closed Loop Cooling System Allowed Allowed Allowed

LANDSCAPE IRRIGATION

Restricted Access Allowed Allowed Allowed

Unrestricted Access Not Allowed Allowed Allowed

Resident-Controlled Not Allowed Not Allowed Allowed

COMMERCIAL

Mechanized Street Cleaning Allowed Allowed Allowed

Zoo Operations Allowed Allowed Allowed

FIRE PROTECTION

Nonresidential Fire Protection Not Allowed Allowed Allowed

Residential Fire Protection Not Allowed Not Allowed Allowed

REGULATION 84 VARIANCES

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

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

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.

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.

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

TABLE III METAL PARAMETERS (Concentration in ug/l)

METAL AQUATIC LIFE AgricultureDomestic Water Supply

Water +Fish

FISH Ingestion

  ACUTE CHRONIC        

Selenium 18.4 4.6 20(B,D) (30-day) 50(E) (30-day) 170 4,200

THE SOLUTIONS:

1. Colorado species-specific calculation.

2. Site-specific standards for waters.

3. Interstate Trading.

– Expand trading for the entire Colorado River watershed.

– Enhance economic incentives through market volume and capital flow.

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

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).

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.

POTPOURRI

• EPA’s Water Transfer Rule

– Friends of Everglades v. EPA, 11th Circuit

• Pesticide Discharge Permit

• Ag Policy/EC-SAR

• EPA Wetlands Jurisdictional Determination

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