NOTICE OF PUBLIC RULEMAKING HEARING BEFORE THE COLORADO WATER QUALITY CONTROL COMMISSION SUBJECT: For consideration of the adoption of revisions to (1) the list of Water-Quality-Limited Segments Requiring Total Maximum Daily Loads (TMDLs), (2) Colorado’s Monitoring and Evaluation List and (3) the list of Impaired Water Bodies Not Requiring TMDLs, Regulation #93 (5 CCR 1002-93). Revisions to Regulation #93 proposed by the Water Quality Control Division (division) as staff to the commission, along with proposed Statement of Basis, Specific Statutory Authority and Purpose, are attached to this notice as Exhibit 1. Besides substantive revisions, the division is also proposing a new table format. The commission will consider whether to delete the existing table in section 93.3 and replace it with one formatted like the table in Exhibit 1, except for the “Proposed Action” column which has been added to identify revisions relative to the current regulation (in lieu of strikeouts and double-underlining). For any water segments included on the proposed lists (existing listings or proposed revisions) set forth in Exhibit 1, this hearing will also consider any alterntive proposals that such segments be included on the list of Water-Quality-Limited Segments Requiring Total Maximum Daily Loads, on Colorado’s Monitoring and Evalutation List, or not included on either list. This hearing will not consider potential listing of water segments not identified in this notice or the exhibit. Any water bodies that are identified in this notice or the exhibit are within the scope of this hearing, even if they were moved to a different segment as a result of a rulemaking hearing earlier this year. SCHEDULE OF IMPORTANT DATES Proponent’s prehearing 09/27/2017 Additional information below. statement due 5 pm Party status requests 10/04/2017 Additional information below. due 5 pm Responsive prehearing 10/27/2017 Additional information below. statements due 5 pm 11/22/2017 Rebuttal statements due Additional information below. 5 pm Last date for submittal 11/27/2017 Additional information below. of motions 5 pm Notify commission office if participating in 11/27/2017 Send email to [email protected] with prehearing conference by noon participant(s) name(s) by phone Florence Sabin Conference Room Department of Public Health and Environment Prehearing Conference 11/28/2017 4300 Cherry Creek Drive South (mandatory for parties) 12:30 pm Denver, CO 80246 Call-in: 1-857-216-6700, Code: 425132 Florence Sabin Conference Room 12/11/2017 Department of Public Health and Environment Rulemaking Hearing 2:00 pm 4300 Cherry Creek Drive South Denver, CO 80246 HEARING SUBMITTALS: For this hearing, the commission will receive all submittals electronically. Submittals must be provided as PDF documents, except for raw data exhibits which may be provided as Excel workbooks. Sumbittals may be emailed to [email protected], provided via an FTP site, CD or flash drive, or otherwise conveyed to the commission office so as to be received no later than the specified date. PARTY STATUS: Party status requests must be in writing and must provide: • the organization’s name, • one contact person, • a mailing address, • a phone number, and • email addresses of all individuals associated with the party who wish to be notified when new submittals are available on the commission’s website for review. In accordance with section 25-8-104(2)(d), C.R.S., any person who believes that the actions proposed in this notice have the potential to cause material injury to his or her water rights is requested to so indicate, along with an explanation of the alleged harm, in their party status request. PREHEARING AND REBUTTAL STATEMENTS: Each party must submit a prehearing statement: parties that have proposed revisions attached as exhibits to the notice must submit a proponent’s prehearing statement. All other parties must submit a responsive prehearing statement. Proponents may also submit responsive prehearing statements when there are multiple proposals attached to the notice. Each prehearing and rebuttal statement must be provided as a separate PDF document from any accompanying written testimony or exhibits. Following the rebuttal statement due date, no other written materials will be accepted from parties except for good cause shown. 2 Oral testimony at the hearing should primarily summarize written material previously submitted. The hearing will emphasize commission questioning of parties and other interested persons about their written prehearing submittals. Introduction of written material at the hearing by those with party status will not be permitted unless authorized by the commission. PREHEARING CONFERENCE: Attendance at the prehearing conference is mandatory for all persons requesting party status. Parties needing to participate by telephone are encouraged to notify the commission office prior to the prehearing conference. Remote participants can call 1-857-216-6700 and enter the conference code 425132. Following the cut-off date for motions, no motions will be accepted, except for good cause shown. PUBLIC PARTICIPATION ENCOURAGED: The commission encourages input from non-parties, either orally at the hearing or in writing prior to the hearing. Written submissions should be emailed to [email protected] by November 29, 2017. SPECIFIC STATUTORY AUTHORITY: The provisions of sections 25-8-202(1)(a), (b), and (i), (2) and (6); 25-8-203; 25-8-204; and 25- 8-401, C.R.S., provide the specific statutory authority for consideration of the regulatory amendments proposed by this notice. Should the commission adopt the regulatory language as proposed in this notice or alternative amendments, it will also adopt, in compliance with section 24-4-103(4) C.R.S., an appropriate Statement of Basis, Specific Statutory Authority, and Purpose. Dated this 8th day of August, 2017 at Denver, Colorado. WATER QUALITY CONTROL COMMISSION Trisha Oeth, Administrator 3 EXHIBIT 1 DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT Water Quality Control Commission REGULATION #93 - COLORADO'S SECTION 303(D) LIST OF IMPAIRED WATERS AND MONITORING AND EVALUATION LIST 5 CCR 1002-93 _________________________________________________________________________ 93.1 Authority These regulations are promulgated pursuant to section 25-8-101 et seq C.R.S. as amended, and in particular, 25-8-202 (1) (a), (b), (i), (2) and (6); 25-8-203 and 25-8-204. 93.2 Purpose This regulation establishes Colorado’s Lists of Impaired Waters. These waters include Water-Quality- Limited Segments Requiring Total Maximum Daily Loads (“TMDLs”), impaired waters that do not require a TMDL, and Colorado’s Monitoring and Evaluation List:. (1) The list of Water-Quality-Limited Segments Requiring TMDLs fulfills requirements of section 303(d) of the federal Clean Water Act which requires that states submit to the U.S. Environmental Protection Agency a list of those waters for which technology-based effluent limitations and other required controls are not stringent enough to implement water quality standards. These segments are included in Section 93.3 with parameters included in the Clean Water Section 303(d) Impairment column. (2) Colorado’s Monitoring and Evaluation List identifies water bodies where there is reason to suspect water quality problems, but there is also uncertainty regarding one or more factors, such as the representative nature of the data. Water bodies that are impaired, but it is unclear whether the cause of impairment is attributable to pollutants as opposed to pollution, are also placed on the Monitoring and Evaluation List. This Monitoring and Evaluation list is a state-only document that is not subject to EPA approval. These segments are included in Section 93.3 with parameters included in the Colorado’s Monitoring and Evaluation column. (3) The list of Water-Quality-Limited Segments Not Requiring a TMDL identifies segments where data is available that indicates that at least one classified use is not being supported, but a TMDL is not needed. These segments and parameters are included in Section 93.4. 93.3 Water Bodies Requiring TMDLs or Identified for Monitoring and Evaluation Only those segments where a Clean Water Section 303(d) Impairment has been determined require TMDLs. For these segments, TMDLs are only required for those parameters that are identified as impairments. [NOTE: Delete previous 93.3 Table and replace with the following new 93.3 Table.] 1 93.3 Water Bodies Requiring TMDLs or Identified for Monitoring and Evaluation COARFO01a 1a. Mainstem of Fountain Creek, including all tributaries and wetlands, from the source to a point immediately above the confluence with Monument Creek, except for specific listings in segment 1b. 1 Listed portion: COARFO01a_B Mainstem of Fountain Creek from source to above Monument creek 2 Impaired Use Analyte Category / List Proposed Action Priority Aquatic Life Use Iron (Total) 1. - All attaining M&E / Remove NA Recreational Use E. coli 5. - 303(d) Retain H Water Supply Use Arsenic (Total) 5. - 303(d) Retain L Water Supply Use Manganese (Dissolved) 5. - 303(d) Retain L Water Supply Use Uranium (Total) 5. - 303(d) Change from M&E to 303(d) NA COARFO01b 1b. Severy Creek and all tributaries from the source to a point just upstream of where US Forest Service Road 330 crosses the stream. 1 Listed portion: COARFO01b_A Severy Creek and all tributaries from the source to a point just upstream of where US Forest Service Road 330 crosses the stream. 2 Impaired Use Analyte Category / List Proposed Action Priority Aquatic Life Use Zinc (Dissolved) 5. - 303(d) 303(d) / New H COARFO02a 2a. Mainstem of Fountain Creek from a point immediately above the confluence with Monument Creek to a point immediately above the State Highway 47 Bridge. 1 Listed portion: COARFO02a_A Mainstem of Fountain Creek from a point immediately above the confluence with Monument Creek to a point immediately above the State Highway 47 Bridge.