Basic Standards Work Group Meeting Summary
November 22, 2004
Paul Frohardt reviewed the agenda and asked if there were any additional items that anyone would like to add to the agenda. Steve Glazer asked whether or not any of the issues raised by the Colorado Water Congress are going to be discussed by the Work Group. Paul Frohardt clarified that the Commission only agreed to consider the issue of mixing zones at the June RMH. Dave Merritt, President of CWC, agreed that future work group discussion of this issue would be appropriate at the December 14 work group meeting.
Paul Frohardt also filled the work group in on issues concerning use-protected designations under the antidegradation regulations currently being discussed with Littleton/Englewood. Mary Gardner has asked that further discussion of this issue be included on the December 14 work group meeting.
With regard to zinc and cadmium proposals, Steve Canton reported that he was going to incorporate new toxicity data provided by DOW into the Chadwick criteria reviews. With regard to cadmium, Steve Canton reported that he had received comments on the cadmium criteria analysis he had previously provided to the work group. With regard to aluminum, Steve Canton has provided his SETAC paper on aluminum to the Division for their review. These issues are scheduled to be discussed at the December 14 work group meeting (1-4 in the Sabin Room).
Low Flow Calculations: Dave Akers walked the work group through the most recent proposed language to deal with short-term large fluctuations in flow and the impact on the regulatory low-flow calculation that was e-mailed to work group participants on Friday, November 19. This proposal adds language to the existing regulatory language contained in Section 31.9(1) of the Basic Standards to specifically add an alternative procedure for calculating low flows for streams with seasonal rapidly rising or falling hydrographs. This proposal represents an agreement in principle between the Towns of Paonia and Colbran and the Division, and while there may be additional minor changes in the proposal, no substantive changes are anticipated. Any further refinement in the language of the proposal will be distributed to the work group members. If requested by any work group members after review of the new draft, this topic will be scheduled for further discussion at the December 14 meeting.
Jerry Raisch did raise the concern that this proposal was distributed late Friday afternoon and there may be other parties with an interest in this issue that have not had a chance to review the proposal. Ron Eddy suggested that comments on the proposal be sent to both Dave Akers () and Ron Eddy () and cc Paul Frohardt () by December 3, 2004.
Revised Temperature Standard: The Division walked the work group through the November 15, 2004, Draft 1 of the Temperature Implementation Guidance that was e-mailed to all work group participants. Anyone with any questions concerning how the Division developed the proposal is welcome to review the Division's database of studies concerning 35 different warm and cold species. Pages 11&12 of the Guidance document lists all of the species with corresponding lethal and chronic effect temperatures, then calculates the 5th percentile to provide protection for 95% of the species. Anyone interested in reviewing the Division's database should contact Sarah Johnson ().
Sarah Johnson walked through the reasonable potential test included in the Guidance document. She specifically clarified that throughout this process the Division will rely on simple mass balance calculations, which is conservative.
Steve Canton questioned the proposed temperature standard to protect cold-water spawning. Steve believes the proposed cold-water spawning standard for rainbow and brown trout is likely protective of cutthroat spawning. Also, since rainbow and brown trout spawn year round, this will result in the proposed 11-degree standard being applied year round, which will cause significant attainment issues. Steve also stated that fish need these cold temperatures to induce spawning, but these cold temperatures are not necessary to protect eggs, fry and larvae. Steve Canton reviewed data he had looked at from streams in the Leadville area that showed the 11-degree spawning MWAT is naturally exceeded during summer months, but browns and rainbows are still prevalent.
Sarah Johnson asked why the literature differs so markedly from the natural environment. Steve responded that it's impossible to replicate natural conditions. Sarah indicated that the Division's spreadsheet will be e-mailed to work group participants upon request and that she would appreciate participants identifying studies that, in particular, are not applicable. Steve Canton responded that the real issue is to ensure that the proposed spawning criteria are not applied year round. Sarah asked that the work group participants propose justification for different temperature criteria application.
Sarah acknowledged that there are several issues that aren't currently addressed by the draft Guidance - such as reservoir releases, tail waters, deep groundwater, coalbed methane. The Division knows that these are issues, but has no language to propose. Sarah also felt that some of the language in the draft Guidance is more appropriately Statement of Basis and Purpose language, not guidance. She also expects the actual proposed criteria numbers will change as people review the Division's database.
Tad Foster questioned the exemptions for low flow conditions and air temperature. Sarah stated that the low flow exemption was intended to mimic language already included in the Basic Standards and the air temperature language was copied from language adopted in Oregon. She invited any alternative proposals.
Given the number of issues yet to be resolved concerning temperature, the group agreed to start the December 14 work group meeting at 9 a.m., rather than 1 p.m., in the Sabin Room at CDPHE. A second meeting has been scheduled for 1:15 p.m. on Friday, December 3, BIF Conference Room in Building B at CDPHE.
Antidegradation Baseline: Sarah Johnson walked the work group through Option 2, dated November 17, regarding antidegradation baseline provisions. In response to the Division's original proposal, the Division heard two concerns: one dealing with other cleanups, such as industrial, not related to historic mining, and a second dealing with voluntary cleanups. The revised language is the Division's attempt to address both of these issues. Pat Nelson asked how the Division was defining remediation - and does it include water treatment. Sarah Johnson responded that the Division had not considered a definition of remediation. Paul Frohardt further responded that the language refers to "past discharges" and remediation. Melinda Kassen asked whether or not Pat Nelson's concerns would be addressed by referring to passive water treatment vs. active. Pat believed it would. Paul Frohardt responded that anytime you're dealing with past mining operations, you would be covered by this new language. However, if the cleanup is voluntary, and not legally mandated, it would be covered by the second part of the draft provision. Mark Pifher stated that Pat had raised a reasonable issue and the Division would take a look at the language in light of her comment.
Tad Foster asked how this language would affect the application of the State's trading policy. Would this language reduce the interest in clean ups under that policy. Paul Frohardt responded that he believes it's a very fact-specific decision, that in fact where a point source that cleans up another problem in order to achieve regulatory relief, they might want the new increment of water quality to be protected from a new discharger.
There was also a discussion of the policy issue surrounding the question of whether or not the improved water quality should be protected from degradation vs. a requirement that entities petition the Commission to protect specific improvements. There was also further discussion of the applicability of this provision in trading. Mark Pifher responded that the trade contract would specifically include the clean up goal and the benefit of the entity initiating the trade - in a trading situation the improved water quality would be calculated based on the net improvement.
A revised version of the proposal will be e-mailed to work group participants with an e-mail indicating that any comments should be provided to Paul Frohardt for distribution to the work group members, including any requests that this issue be included on the December 14 agenda.
Pat Nelson also questioned how the new baseline "date" would be included in the standards for a specific segment - would it be included in the tables for the segment, covered in an update to the existing Antidegradation Guidance, or would it be at the discretion of the Division and permit writers. Pat felt that it needed to be defined someplace to ensure consistency.
Early Life Stage Ammonia Standards: Sarah Johnson distributed a criteria proposal for incorporating the 1999 ammonia criteria into the Basic Standards, Draft #1, dated November 19, 2004. A copy of an updated version of this draft has been e-mailed directly to work group participants.
Steve Canton indicated that in his opinion the early-life stage periods proposed for warm water streams (March 1 - August 31) would also be applicable in cold-water streams. Dave Moon responded that the Division's proposal was consistent with EPA's national guidance. Steve Canton will take a look at the language and consider an alternative proposal. Dave Moon responded that the Division's proposal would allow Steve Canton's approach on a site-specific basis, while providing statewide criteria consistent with EPA's guidance.
This issue will be discussed during the expanded Basic Standards Work Group now scheduled from 9 a.m. to 4 p.m. in the Sabin Room at CDPHE.
RandyKloberdanz, representing CWC, raised a question concerning the proposed clarification of the ambient standards discussed at the last work group meeting. Sarah Johnson agreed with Randy's interpretation but further clarified that she would be recommending a change from the maximum upstream water quality to the 95th percentile of upstream data for acute standards based on ambient quality.
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