Code of Colorado Regulations
1000 - Department of Public Health and Environment
1002 - Water Quality Control Commission (1002 Series)
5 CCR 1002-85 - REGULATION NO. 85 - NUTRIENTS MANAGEMENT CONTROL REGULATION
Section 5 CCR 1002-85.16 - STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE: OCTOBER 10, 2017 RULEMAKING, FINAL ACTION NOVEMBER 13, 2017; EFFECTIVE DATE OF DECEMBER 30, 2017

Current through Register Vol. 47, No. 17, September 10, 2024

The provisions of sections 25-8-202; 25-8-205; 25-8-304; 25-8-401; 25-8-402; and 25-8-501, C.R.S., provide the specific statutory authority for the adoption of this Control Regulation. The Commission has also adopted, in compliance with section 24-4-103(4) C.R.S., the following statement of basis and purpose.

BASIS AND PURPOSE

Phase 2 of Colorado's Nutrients Management Program: In this rulemaking, the commission took action to put into place the second phase of Colorado's strategy to address current and potential future nutrient pollution of Colorado surface waters.

In 2012, the commission adopted interim numerical values for phosphorus, nitrogen, and chlorophyll a as one part of a two-part strategy. Since 2012, the commission has adopted phosphorus numeric values upstream of domestic discharges, cooling tower discharges, and non-domestic discharges subject to Regulation #85 effluent limitations in segments throughout the state in accordance with 31.17. The commission has also adopted the direct use water supply classification and standard in accordance with 31.17. In 2016, EPA approved the interim numeric values for chlorophyll a, approved with recommendations the numeric values for phosphorus and nitrogen for lakes and reservoirs, and took no action with respect to the interim numeric values for phosphorus and nitrogen for rivers and streams or the delayed effective dates.

In 2012, the commission envisioned that the interim numeric values in 31.17 could be used for the adoption of water quality standards for any surface waters in Colorado following May 31, 2022. However, EPA's action in 2016 has led the commission to consider modifications to its nutrients reduction strategy.

First, the commission noted that EPA had approved the interim numeric values for chlorophyll a, and the commission determined that the 2022 timeframe is appropriate for adoption of chlorophyll a standards. The adoption of chlorophyll a standards throughout the state in the 2022 timeframe is included in Colorado's nutrients management plan that was discussed during the proceedings for this hearing. Also discussed in that plan is the commission's anticipation that during Phase 2 of Colorado's nutrients management approach, the chlorophyll a standards will be implemented through the TMDL process for waters listed on the 303(d) list for impaired waters.

Second, the commission noted that EPA approved with recommendations the numeric values for phosphorus and nitrogen for lakes and reservoirs. Because of the EPA recommendations regarding the interim phosphorus and nitrogen values for lakes and reservoirs, additional analysis is needed before applying the interim values, particularly for warm-water lakes and reservoirs. The commission determined that the division should revisit the phosphorus and nitrogen values for lakes and reservoirs, and should prioritize the development of numeric phosphorus and nitrogen standards based on protection of public health. Therefore, as reflected in the nutrients management plan, the commission anticipates that in the 2022 timeframe the division will propose phosphorus and nitrogen standards for lakes and reservoirs that are direct use water supply reservoirs and where there are public swim beaches. With the exception of direct use water supply reservoirs and lakes and reservoirs with public swim beaches, the commission has decided to further delay the effective dates of the phosphorus and nitrogen numeric values below dischargers to 2027.

Third, the commission noted that EPA took no action with respect to the interim numeric values for phosphorus and nitrogen for rivers and streams. The commission determined more time is needed to revisit the numeric values for phosphorus and nitrogen for rivers and streams, and anticipates that revised standards will be developed and considered in the 2027 timeframe. The commission acknowledges that removing organic nitrogen to low levels is a current technological challenge. The commission recognizes this issue will need to be considered in future policy reviews and rulemaking hearings regarding nutrients along with future technological advances.

The commission also anticipates that a hearing will be held in 2020 to consider impacts from nonpoint sources and potential strategies for nonpoint source control. As part of implementing the provisions of Regulation 85 at subsection 85.5 , Nonpoint Source Discharges, the commission determined that considerable progress has been made to date by the division, the Colorado Monitoring Framework Agricultural Task Force, the Lower Arkansas Valley Water Conservancy District, and other partnering entities through dissemination of nutrient control-related information and tools for voluntary use by the agricultural community. This model of collaborative outreach, education, and engagement has been made possible through division leadership and funding to support these efforts, as well as the proactive responsiveness of entities who work directly with agricultural producers. The commission encouraged these collaborative activities to continue with a goal of documenting measurable results for presentation at the next triennial review.

In addition, while the commission's traditional approach would have meant that the commission would have considered updated standards for ammonia and selenium in 2021, the current intent of the commission is to delay adoption of revised standards for selenium and ammonia until 2027 as well. The long-term strategy is that the commission will consider the adoption of revised standards for all of these constituents for all water bodies in the state in rulemaking hearings in 2027. The commission anticipates that over the course of the next 10 years, the division will work to revise the standards for ammonia, selenium, nitrogen and phosphorus for rivers and streams, while at the same time will develop feasibility information to assist dischargers with proposing discharger specific variances, which will also take into consideration the treatment challenges of treating for nutrients, selenium, and ammonia, as well as temperature. In order to implement standards as soon as practical, the commission will not rely on the basin review process for adoption of site-specific standards over the course of several years. Instead, in hearings in 2027, the commission will consider site-specific standards and discharger-specific variances for all of these parameters for all waters bodies of the state. After adoption of revised numeric nutrient standards in 2027 in rivers and streams, the commission intends that water quality based effluent limits will be implemented into permits after December 31, 2027.

While the commission has decided to delay the adoption of numeric nutrient values to 2027, it is committed to making additional progress towards nutrient reductions in Colorado during this second phase. The commission believes that the best way to make progress at this time is through an incentives program to encourage early reductions of nutrients by domestic and non-domestic wastewater treatment works. The incentives program will encourage facilities to make voluntary reductions of nutrients, and in exchange the facility will receive an extended compliance schedule as well as certainty about the year in which the facility will need to meet water quality based effluent limits. An extended compliance schedule means the facility will be given additional time to comply with effluent limits that would be based on water quality standards or variances adopted in 2027. The commission believes that more progress can be made through an incentives program than through mandating reductions by medium sized facilities or facilities in a low priority watershed. For example, the commission believes that even if only the 15 largest dischargers took advantage of the incentives program, and if each of those facilities reduced its nitrogen 20% below the Regulation #85 effluent limits, the resulting load reduction in the state would be three times larger than what would be achieved if the Regulation #85 effluent limits were applied to all domestic wastewater treatment facilities with delayed implementation as identified in 85.5(1)(a)(ii). The commission believes this is the best current policy option to make effective progress in addressing nutrients management in Colorado at this time. The commission believes that reducing the phosphorus or nitrogen effluent limits in Regulation #85, or to apply those effluent limits to more facilities would result in substantially less progress in controlling nutrients in the next 10 years than will the incentive program. However, the commission does intend to evaluate the amount of improvement that occurs through the incentive program, and may revisit this approach and make additional modifications to its nutrients reduction strategy if this voluntary incentives program does not result in reductions as anticipated.

To achieve this goal of early nutrient reduction, the commission has adopted a voluntary incentive program. Participation in the program is entirely voluntary. The program does not require wastewater treatment facilities to implement a specific treatment technology, but it is anticipated that nutrient reductions will be achieved through BNR optimization, a water quality trade, a source reduction plan, watershed nutrient reductions, or capital improvements. A facility that achieves early reduction of nutrients will be offered an incentive in the form of an extended CDPS permit compliance schedule, which increases the number of years that the wastewater facility has to meet the water quality based effluent limits after 2027. The commission expects that the incentive will provide wastewater treatment facilities additional time to identify funding sources necessary to make the capital infrastructure investment in tertiary treatment after 2027. Regulatory framework for voluntary incentive program: The voluntary incentive program is outlined in Regulation 85.5(1.5). The commission intends that implementation of this program will be accomplished in conjunction with Commission Policy 17-1 that was adopted concurrent with this hearing. Permittees who wish to participate in the incentive program are required to submit a nutrient reduction plan and annual nutrient monitoring reports to the division by December 31, 2019. In order to qualify for the incentive program, the permittee must reduce nitrogen and/or phosphorus discharge concentrations to levels below those in Regulation #85 by December 31, 2026.

The annual reporting requirement provides the division with an opportunity to review a permittee's progress in reducing nutrient levels below those in Regulation #85 and to assess how those reductions relate to the incentives offered in Commission Policy 17-1. If a permittee is able to make early reductions in its discharge of nutrients, the permittee will qualify for an incentive which gives it additional time to comply with numeric nutrient values in Regulation #31, and Regulations #32 through 38 that are anticipated to be adopted in 2027. The amount of additional time granted will depend on the amount of nutrient concentration reduction that the wastewater facility achieves between 2019 and 2026.

The commission considered whether permittees subject to TMDLs should still be able to participate in the incentive program due to the fact that there is an impaired waterbody and the incentive program will result in participants receiving an extended period of time to meet their wasteload allocations. In particular, the commission heard concerns about participation by the dischargers subject to the Barr Milton TMDL. The commission ultimately decided that dischargers subject to a TMDL should still be able to participate in the incentive program because it will help drive earlier reductions. However, in the case of the dischargers subject to the Barr Milton TMDL, the commission decided that in order to continue to incentivize early nutrient reductions by those dischargers but yet address concerns about additional delay in implementation of the phosphorus wasteload allocations, that the method for earning incentive credit for total phosphorus reduction would be focused on further phosphorus reductions in line with the Barr Milton TMDL phosphorus targets. During the first review of Policy 17-1 which would typically take place in 2020, the commission will consider whether to extend the method that applies to the dischargers with a wasteload allocation pursuant to the Barr Milton TMDL to other dischargers within the Barr Milton watershed or even potentially more broadly. Should any entity determine that consideration of this change should occur prior to the deadline for opting into the incentive program on December 31, 2019, any entity can request that the commission consider changes prior to December 31, 2019.

The division will use Commission Policy 17-1 to make a determination about the amount of time that a permittee participating in the incentive program should be granted when it renews the permittee's CDPS permit after 2027. The division will rely on the nutrient incentives program annual reports in making this determination. If a permittee achieves early reduction of nutrients, it will be granted a compliance schedule in accordance with Commission Policy 17-1 Such compliance schedule may be revised or terminated if the division determines, under section 25-8-307, C.R.S., that the discharge or continued discharge of nutrients by an incentive program participant constitutes a "clear present and immediate danger to the health or livelihood of members of the public," or, under section 61.8 of Regulation #61, that the "permitted activity endangers human health or the classified or existing uses of state waters and can only be regulated to acceptable levels by permit modification or termination." Examples of situations that could trigger the division's exercise of this authority could include, but are not limited to, a toxic algae bloom in receiving waters downstream of a wastewater treatment facility or the presence of pollutants that cause or contribute to unacceptably high concentrations of disinfection byproducts in drinking water treatment facilities with intake locations downstream of a wastewater treatment facility. They could also include situations where nutrient levels in receiving/downstream waters have reached extreme highs or have increased two or threefold since 2017, where streams or reservoirs have repeated algae blooms producing toxins in multiple years, or where there is demonstrable and significant impact to aquatic life or other animals attributable to nutrients.

Based on the environmental benefit anticipated from the voluntary nutrient reductions under the incentive program, the commission expects these circumstances to be rare. The commission recognizes that the voluntary nutrient reductions that will result from the incentive program participants may reduce the severity of the event by reducing nutrient concentrations below those that would otherwise have been permitted. The commission anticipates that in such a circumstance the division will evaluate all of the sources and work to control all of the sources concurrently or in succession, depending on the most appropriate approach in that particular case.

A permittee or other interested parties can challenge the division's determination implementing the voluntary incentive compliance schedule as part of the CDPS permit renewal schedule. If the annual nutrient monitoring reports demonstrate that a permittee has achieved early nutrient reductions in accordance with Commission Policy 17-1, there will be a presumption that a permittee is entitled to the additional time allotted.

It is the commission's determination that this approach will achieve the maximum practical degree of water quality in state waters consistent with the welfare of the state, and that this approach maximizes the beneficial uses of state waters while bearing a reasonable relationship to the economic, environmental, energy, and public health costs and impacts to the public. The commission intends that the incentive program as adopted in 2017 will be maintained for the participants through 2027. The commission will review the incentive program as part of its triennial process in 2022. If the commission determines that additional nutrient reductions beyond those that result from the incentive program are necessary during the program period, the commission intends that these additional reductions will be accomplished first through alternative regulatory mechanisms and only as a last resort will the commission change the incentive program.

Definition of New and Existing Treatment Facilities: The commission modified section 85.4 DEFINITIONS by adding the terms New Treatment Facility and Existing Treatment Facility and renumbering all definitions based on alphabetic ordering. These terms were added to clarify the commission's previously stated intent that the technology based effluent limits for new treatment facilities were not to apply to expansions or other improvements to existing facilities in the same location. The previous regulatory language did not clearly indicate that the technology based effluent nutrient limits apply to discharges to surface water only. The new definitions clarify that existing domestic facilities include any treatment facility that commences discharge or receives PELs or site approval for groundwater discharge or surface water discharge or who applies for a Notice of Authorization for the application of reclaimed water prior to May 31, 2012, even if the facility was discharging without a permit. The new definitions also clarify that a change in a treatment facility's site location will result in application of the effluent limits for new facilities. A cross-reference to the definition of the term "site" in Regulation #61 was also added. The definitions do not change existing implementation practices, but merely reinforce current interpretations to prevent any future misunderstanding or misapplication.

Preliminary Effluent Limits: The commission modified section 85.5 to allow a standard practice of including Regulation #85 effluent limits in preliminary effluent limits (PELs), with a delayed effective date, for the facilities covered by Section 85.5 . While some effluent limits will mirror the limits in Sections 85.5 (b), in the course of evaluating the Regulation #85 limits for PELS, the division would also be evaluating whether any of the additional exceptions from Section 85.5 would apply or whether a trade has been executed pursuant to Section 85.5 , resulting either in no effluent limit or a less stringent effluent limit than those contained in Sections 85.5 (b). This will allow a facility to plan and design the facility to meet the Regulation #85 effluent limits if they choose to do so. In addition, the facility would be able to obtain Site Location and Design Approval for that design. This type of information would be helpful, for example, in a situation where a facility is planning other facility upgrades or is interested in leveraging funding opportunities.

The commission also modified section 85.5 to allow preliminary effluent limits, with delayed effective dates, to be included for small and disadvantaged communities upon request by the facility.

Disadvantaged Communities: Section 85.5 states that the numeric effluent limits do not apply to any domestic wastewater treatment works owned by a disadvantaged community. The commission did not change this exclusion in this hearing. However, the commission did update the definition of disadvantaged communities in order to better examine the socio economic condition of a community and to be more aligned with the State Revolving Loan Fund program definition. First, the commission changed the population threshold from 5,000 to 10,000. Then, multiple criteria are evaluated to determine whether the community is disadvantaged. There are three primary factors that a community will be evaluated against: median household income, median home value, and unemployment rate or job loss. There are three secondary factors that will also be evaluated. Section 85.7 contains a table that outlines which factors must be met in order for a community to be determined to be a disadvantaged community. In the event a community is determined not to be disadvantaged, but the community believes there is an error in the data, the community may present a business case to the division for review. The division will then determine whether a business case has been made such that the community should be determined a disadvantaged community and therefore excluded from application of the effluent limits.

The commission also clarified that if a community wants the division to conduct an evaluation of whether it meets the criteria in section 85.7 , the community must request that analysis be conducted at the time of submitting its permit application.

Monitoring and reporting requirements: A two year monitoring requirement for cooling tower discharges existed in Section 85.6 . This monitoring requirement resulted in the data collection and reporting of nutrient data from inflow, discharge and nutrient added to cooling processes from November 1, 2012 through October 31, 2014. This monitoring requirement was fulfilled and therefore the commission deleted that provision.

A reporting requirement for municipal separate storm sewer system discharges existed in Section 85.6 . The data was compiled into a report and submitted to the division. This reporting requirement was fulfilled and therefore the commission deleted that provision.

The commission added the requirement to monitor and report total inorganic nitrogen at stream monitoring locations. This change will allow the direct comparison of effluent and instream total inorganic nitrogen concentrations and loads, and thus, a better understanding of the change due to the implementation of total inorganic nitrogen effluent limits.

The commission notes that applicable PQLs can be found in WQC Policy CW6.

In order to provide certainty to monitoring facilities, the commission added an end date of December 31, 2027 to the monitoring requirements. This date will allow the division to amass substantial data regarding nutrient loading into Colorado's waters and will provide for an understanding of how that load may change as nutrient effluent limits are implemented. Furthermore, the commission anticipates there will be continued nutrient monitoring data from the division's (and others') routine monitoring as well as from discharge monitoring requirements as effluent limits are implemented into permits. However, understanding the impacts to water quality from the implementation of the incentive program, water quality based effluent limits based on Regulation #31 criteria, and related DSVs may necessitate collection of additional instream data. Therefore, the commission will reevaluate the appropriateness of this end date at future rulemaking hearings.

In order to reduce confusion, the commission added a sentence to the opening paragraph of Section 85.5 to call attention to the monitoring requiements of 85.6 regardless of whether the effluent limitations in 85.5 apply.

Federal Facilities: The commission modified 85.5 and 85.6 to clarify that Regulation #85 applies to federally operated domestic wastewater treatment facilities that receive National Pollutant Discharge System Elimination System (NDPES) permits from EPA as Colorado has not been delegated authority to issue permits to federal facilities. Other control regulation requirements apply to federal facilities in Colorado and it makes sense for this control regulation to stand on equal ground in terms of its applicability to federal facilities. The commission added language to clarify that section 85.5 requirements apply to Colorado Discharge Permit System (CDPS) and NPDES permits. In addition, the commission clarified in 85.6 that monitoring requirements apply to federal facilities.

Typos and corrections: In addition to the substantive changes described above, numerous editorial changes have been made in the regulation to provide clarity. Several minor changes were made to further define priority watersheds, delete references that were no longer relevant, and to clarify the monitoring requirements. In addition, several typographical errors have been corrected including a reference in the trading section.

Standard Industrial Classification code in the Major Group 20

Numeric Limitations for Non-Domestic Wastewater Treatment Works: The commission modified Section 85.5 to include TIN and TP limitations specific to non-domestic dischargers with a Standard Industrial Classification code in the Major Group 20 (SIC 20). Several of the SIC 20 dischargers presented information to the commission regarding their specific challenges in treating to the Regulation 85 limitations. The SIC 20 industries treat wastewater that has influent concentrations of total nitrogen in the range of 500 to 900 mg/L (4,170 to 7,500 lbs/MG) and total phosphorus concentrations of 60 to 80 mg/L (500 to 670 lbs/MG). These influent concentrations are an order of magnitude higher than the influent concentrations experienced by typical domestic wastewater treatment works. While most of the existing SIC 20 wastewater treatment works are configured to treat these higher influent nutrient loadings, the influent nutrient and organic ratios do not allow these wastewater treatment works to achieve biological nutrient removal to the same technology based effluent limits as typical domestic wastewater treatment works.

For consistency with the requirements for domestic facilities, new and existing SIC 20 facilities were assigned different technology based effluent limits. These limits were based on the capability of biological treatment systems, and the difficulty of retrofitting existing systems versus the ability to design and install enhanced treatment on an undeveloped site. The commission decided to require existing SIC 20 facilities to achieve treatment commensurate with BNR removal for the more significant influent loading. For new SIC 20 facilities, the technology based nutrient effluent limits were based on the biological treatment capabilities of enhanced BNR (eBNR) treatment systems at these anticipated higher influent loads. Based on the expected influent loadings of the SIC 20 facilities and the domestic wastewater facilities, the adopted technology based effluent limits for SIC 20 facilities reflect similar percent removals for total phosphorus, but significantly higher percent removals for total inorganic nitrogen.

PARTIES TO THE RULEMAKING