Water Resources Review Committee (09/07/2012)

Final
STAFF SUMMARY OF MEETING

WATER RESOURCES REVIEW COMMITTEE

Date:	09/07/2012	ATTENDANCE

Time:	09:02 AM to 12:40 PM	Baumgardner	X
		Brophy	X
Place:	HCR 0112	Giron	E
		Hodge	X
This Meeting was called to order by		Roberts	X
	Representative Sonnenberg	Swerdfeger	E
		Vigil	X
This Report was prepared by		Wilson	X
	David Beaujon	Schwartz	X
		Sonnenberg	X
		X = Present, E = Excused, A = Absent, * = Present after roll call

Bills Addressed:		Action Taken:
Final Nutrient Regulations Proposed Arsenic Water Quality Standard Water Infrastructure Funding Challenges Draft Legislation Concerning Grey Water Reuse Perpetual Base Account Transfers Water Conservation in Designated Basin Water Conservation Outside of Designated Basins Proposed Legacy Ditch Legislation USFS Order to Assign Ski Area-Owned Water Rights Public Testimony Draft Legislation Concerning Industrial Stormwater Permits		Briefing Only Briefing Only Draft Legislation Requested Draft Legislation Requested Briefing Only Draft Legislation Requested Draft Legislation Requested Draft Legislation Requested Draft Legislation and Letter Requested Briefing Only Draft Legislation Requested

09:02 AM

Representative Sonnenberg, chairman of the committee, called the meeting to order. A quorum was present.

09:02 AM -- Final Nutrient Regulations

Steve Gunderson, Director, Water Quality Control Division, discussed the rulemaking process for the nutrient regulations (Attachments A and B). At its June 12, 2012, rulemaking hearing, the Water Quality Control Commission amended its regulation concerning basic standards and methodologies for surface water to address nutrients. It also adopted a new nutrients management control regulation (Regulation 85) that establishes numerical effluent limitations for domestic wastewater treatment plants and other wastewater dischargers that use active treatment and are likely to have significant levels of nutrients in their discharges. Regulation 85 also describes steps to be taken by other point source dischargers and nonpoint sources to address nutrients. Finally, it established monitoring requirements for point source dischargers and a program aimed at monitoring surface waters for nutrients and related parameters. Mr. Gunderson explained that Regulation 85 would be applied to dischargers as their permits expire.

09:05 AM

Sarah Johnson, Standards Unit Manager, Water Quality Control Division, described the monitoring requirements in Regulation 85 and identified affected dischargers.

09:10 AM

Mr. Gunderson responded to questions from the committee about the facilities in Colorado that would be affected by the nutrient regulations. Ms. Johnson also responded to questions about the monitoring requirement in Regulation 85 that will be used to determine how much nutrients are being discharged and the impact of these discharges on affected bodies of water. Mr. Gunderson also responded to questions about the potential cost to affected dischargers to comply with the new regulations.

09:26 AM -- Proposed Arsenic Water Quality Standard

Steve Gunderson, Director, Water Quality Control Division, explained that the Water Quality Control Division has been exploring a relaxed standard for arsenic that better reflects available science concerning this hazard (Attachment C). Based on the initial feedback from stakeholders concerning the division's preliminary proposal for arsenic standards, the division decided not to proceed with the standard. The division decided to postpone exploration of the revisions until the 2016 basic standards (Regulation 31) rulemaking process.

09:27 AM

Sarah Johnson, Standards Unit Manager, Water Quality Control Division, explained that arsenic is a known human carcinogen that causes skin, lung, liver, bladder and kidney cancer if consumed in low doses over a long period of time. It can also cause skin lesions and organ failure at higher doses. (Attachment D). Arsenic levels are set to protect people who are exposed to arsenic by drinking the water or eating fish that live in the water, since arsenic can accumulate in fish. She described how state and federal law regulates arsenic levels in drinking water and waste water discharges. She also discussed how the division intents to review the arsenic standard in 2016 including opportunities for the regulated community to participate in this process.

09:32 AM

Ms. Johnson and Mr. Gunderson responded to questions from the committee about the arsenic standards and potential health impacts related to elevated arsenic levels. They also discussed measures to reduce the hazard related to arsenic in drinking water and waste water discharges.

09:43 AM -- Water Infrastructure Funding Challenges

Keith McLaughlin, Finance Director, Colorado Water Resources and Power Development Authority, described the laws that authorize spending from the Drinking Water Revolving Fund (DWRF) and the Water Pollution Control Revolving Fund (WPCRF). Each year the authority helps prepare a joint resolution for consideration by the General Assembly that makes changes to the water projects eligibility list. The authority anticipates issuing up to $30 million in DWRF loans and up to $35 million in WPCRF loans in 2012 for public drinking water and wastewater projects. He also described the preparation of the 2013 project eligibility list and expressed concern about possible reduced federal appropriations for public drinking water and waste water projects. He also discussed the impact of federal wage requirements related to the use of the federal grants according to the Davis-Bacon Act, and federal requirements that projects use materials produced in the U.S., according to the "Buy American" requirements. Mr. McLaughlin responded to questions from the committee about potential finance methods to offset the cost of complying with the Davis-Bacon Act and the Buy American requirements, and how the CWRPDA estimates future demand for its loans.

10:02 AM

Steve Gunderson, Director, Water Quality Control Division (division), explained how the division works with the Department of Local Affairs and the CWRPDA to find affordable finance mechanism to help communities comply with state water quality regulations.

10:04 AM

Dennis Stowe, Chair of the Colorado Wastewater Utility Council, explained that an annual Intended Use Plan (IUP) is developed by the division and approved by the Water Quality Control Commission. The IUP provides information about how the state will assist communities with their drinking water needs. Included in the IUP is the Project Eligibility List, which is a comprehensive list identifying drinking water project needs. The project priority system is intended to establish priorities for the grant fund that protects and improves the public health and safety through increased reliability of drinking water supplies in Colorado. He expressed concern about the ability of the regulated community to pay for infrastructure needed to comply with state and federal water quality regulations. He also responded to questions from the committee about how utilities may pay for infrastructure improvements to comply with state and federal requirements, including rate increases.

10:25 AM

Sean C. Lieske, Chair of the Colorado Water Utility Council (CWUC), identified the membership of the CWUC and described how the new nutrient regulations may affect the cost of treating drinking water in Colorado. He also expressed concern about the potential loss of federal funding for public drinking water and waste water treatment projects, and discussed the challenge of paying for water treatment infrastructure to comply with waste water and drinking water standards.

10:31 AM

Kevin Bommer, Deputy Director, Colorado Municipal League, expressed concern about state and federal water quality control requirements and the impact on utility rate payers. He also expressed concern about the lack state and federal assistance to help communities pay for public water infrastructure. He responded to questions from the committee about potential changes to state and federal regulations that may reduce the infrastructure spending needs of local communities.


BILL:	Water Infrastructure Funding Challenges
TIME:	10:44:24 AM
MOVED:	Roberts
MOTION:	Moved to draft a resolution urging the General Assembly to limit severance tax transfers to the General Fund and to help ensure that communities are able to meet water infrastructure needs. The motion passed without objection.
SECONDED:	Schwartz
		VOTE
	Baumgardner
	Brophy
	Giron	Excused
	Hodge
	Roberts
	Swerdfeger	Excused
	Vigil
	Wilson
	Schwartz
	Sonnenberg

Final YES: 0 NO: 0 EXC: 2 ABS: 0 FINAL ACTION: Pass Without Objection

10:46 AM -- Draft Legislation Concerning Grey Water Reuse

Senator Schwartz requested that the committee consider authorizing grey water reuse. Grey water reuse occurs when water is captured after it has been used for a household purpose, such as dishwashing, treated, and then applied to another household use, such as flushing a toilet.


BILL:	Draft Legislation Concerning Grey Water Reuse
TIME:	10:47:25 AM
MOVED:	Schwartz
MOTION:	Moved to draft a bill to authorize grey water reuse. The motion passed without objection.. The motion passed without objection.
SECONDED:	Wilson
		VOTE
	Baumgardner
	Brophy
	Giron	Excused
	Hodge
	Roberts
	Swerdfeger	Excused
	Vigil
	Wilson
	Schwartz
	Sonnenberg

Final YES: 0 NO: 0 EXC: 2 ABS: 0 FINAL ACTION: Pass Without Objection

10:49 AM -- Perpetual Base Account Transfers

Jennifer Gimbel, Director, Colorado Water Conservation Board, explained that the Governor transferred $1.6 from the Perpetual Base Account of the Severance Tax Trust Fund to pay for wildfire fighting efforts in 2012. She also discussed funding that may be available for water projects in FY 2013-14 from the Perpetual Base Account and the CWCB Construction Fund. Ms. Gimbel also invited the committee to attend the upcoming drought conference on September 19th and 20th that is hosted by the CWCB.

10:54 AM

Representative Fischer announced a tour of agricultural water facilities hosted by the Colorado Ag Water Alliance on Monday, September 10, 2012.

10:58 AM -- Water Conservation in Designated Basin

Don Brown, representing himself, explained that he uses water from a designated basin to irrigate his farm and that he would like to stop using end guns on his irrigation system to reduce groundwater consumption. He explained that end guns are less efficient than nozzles on the irrigation system. He expressed concern that his water right could be reduced if he stops using the end gun and the law does not specifically exempt the reduced consumption from the historic consumptive use analysis (Attachment E). The historic consumptive use analysis determines the amount of water that may be changed to another use, such as an industrial purpose, or transferred to another user.

11:03 AM

Dick Wolfe, State Engineer, Director, Division of Water Resources, described the provisions of final permits for wells in designated basins and he described how conservation measures may affect the amount of water that may be pumped under a final permit. The proposed efficiency measure would not affect the final permit. However, if the permit holder wanted a change of use for the groundwater they would be required to undergo a historic consumption use analysis. Without specific authority from the Ground Water Commission or the General Assembly, the historic consumptive use analysis may include the reduced pumping that results from water conservation measures, such as the removal of end guns. Mr. Wolfe responded to questions from the committee about the effect of water conservation measures on water rights in designated basins.

11:22 AM

Mr. Wolfe responded to questions about potential changes to statute or Ground Water Commission regulation that may be needed to address Mr. Brown's request to protect his well's historic consumptive use.


BILL:	Water Conservation in Designated Basin
TIME:	11:32:41 AM
MOVED:	Brophy
MOTION:	Moved to draft a bill to exempt certain water conservation measures from historic consumption use analysis in designated basins. The motion passed without objection.. The motion passed without objection.
SECONDED:	Hodge
		VOTE
	Baumgardner
	Brophy
	Giron	Excused
	Hodge
	Roberts
	Swerdfeger	Excused
	Vigil
	Wilson
	Schwartz
	Sonnenberg

Final YES: 0 NO: 0 EXC: 2 ABS: 0 FINAL ACTION: Pass Without Objection

11:35 AM -- Water Conservation Outside of Designated Basins

Senator Schwartz expressed support for allowing stream water diverters and other water users outside of designated basins to reduce their water consumption while protecting their historic consumptive use. Current law allows loans of water rights to the Colorado Water Conservation Board for instream flows without affecting the historic consumptive use of those water rights.


BILL:	Water Conservation Outside of Designated Basins
TIME:	11:36:02 PM
MOVED:	Schwartz
MOTION:	Moved to draft a bill to exempt certain water conservation measures from historic consumption use analysis for certain stream water rights. The motion passed without objection.. The motion passed without objection.
SECONDED:	Vigil
		VOTE
	Baumgardner
	Brophy
	Giron	Excused
	Hodge
	Roberts
	Swerdfeger	Excused
	Vigil
	Wilson
	Schwartz
	Sonnenberg

Final YES: 0 NO: 0 EXC: 2 ABS: 0 FINAL ACTION: Pass Without Objection

11:36 AM -- Proposed Legacy Ditch Legislation

P. Andrew Jones, representing Lawrence, Jones, Custer, & Grasmick, LLC, described the history of water rights development in Colorado and discussed problems with determining the meaning of certain court decrees concerning these early water rights. He also described recent case law concerning the Jones Ditch and Burlington Ditch Reservoir and Land Company that affected the historical use determinations for certain earlier water rights (Attachment F). He explained that these court decision have increased uncertainty in water rights, prevented ditch wide change in use cases, and created the potential for large scale requantification of senior water rights.

11:54 AM

Mr. Jones proposed legislation to address the problem affecting legacy ditches. Under the proposal, if the decree establishing a water right provides no express limit on the amount or location of acreage the right may irrigate, then acreages irrigated within 50 years following the entry of the original decree would be considered to be within the lawful service area of the ditch. This legislation would also allow irrigation upgradient of established ditches to be recognized as lawful so long as total irrigated acreage does not exceed the amount established by application of the 50-year statute of limitations.

12:00 PM

Dick Wolfe, State Engineer, Director of the Division of Water Resources, responded to questions from the committee about the availability of historic records of water diversion including reports and aerial photos of irrigated acres. Such information could be used to help determine the historic use for certain legacy ditches.


BILL:	Proposed Legacy Ditch Legislation
TIME:	12:02:35 PM
MOVED:	Hodge
MOTION:	Moved to draft a bill to address historic consumptive use of certain legacy ditch companies. The motion passed without objection.. The motion passed without objection.
SECONDED:	Vigil
		VOTE
	Baumgardner
	Brophy
	Giron	Excused
	Hodge
	Roberts
	Swerdfeger	Excused
	Vigil
	Wilson
	Schwartz
	Sonnenberg

Final YES: 0 NO: 0 EXC: 2 ABS: 0 FINAL ACTION: Pass Without Objection

12:03 PM -- USFS Order to Assign Ski Area-Owned Water Rights

David Blake, Assistant Attorney General, described litigation between the US Forest Service (USFS) and privately owned ski areas. He described the issues considered by the Attorney General when deciding whether to intervene in litigation. He explained that the dispute involving the ski areas is a private matter that does not currently affect a state interest that would lead the Colorado Attorney General to intervene. Mr. Blake said that the Attorney General's Office will monitor this case and decide whether to participate in the lawsuit after the court issues its opinion. He also responded to questions about issues that may lead the Attorney General to intervene in the case.

12:20 PM
Tom Morris, Office of Legislative Legal Services, responded to questions from the committee about possible legislative action to address the dispute between Colorado ski areas and the USFS.


BILL:	USFS Order to Assign Ski Area-Owned Water Rights
TIME:	12:31:07 PM
MOVED:	Schwartz
MOTION:	Moved to draft a bill, a resolution, and a letter of opposition to the U.S. Forest Service 2012 Ski Area Water Clause. The motion passed without objection.. The motion passed without objection.
SECONDED:	Hodge
		VOTE
	Baumgardner
	Brophy
	Giron	Excused
	Hodge
	Roberts
	Swerdfeger	Excused
	Vigil
	Wilson
	Schwartz
	Sonnenberg

Final YES: 0 NO: 0 EXC: 2 ABS: 0 FINAL ACTION: Pass Without Objection

12:32 PM -- Public Testimony

John Hendrick, General Manager, Centennial Water and Sanitation District, expressed concern about the scientific basis for the new nutrient standards adopted by the Water Quality Control Commission. He also spoke in support of House Bill 12-1161 that was postponed indefinitely. This bill would have prevented a water quality standard for nitrogen, phosphorus, or related parameters (nutrients) adopted by the Water Quality Control Commission (WQCC) from taking effect until the proposed standard was approved by the General Assembly through legislation.

Jeffrey M. Kane, Southwestern Water Conservation District, submitted a letter expressing concern about the cost of complying with the Water Quality Control Commission Regulation 85 and the numeric criteria in Regulation 31 (Attachment G).

12:39 PM -- Draft legislation Concerning Industrial Stormwater Permits

Representative Sonnenberg asked the committee if anyone wants to request draft legislation to relax the new storm water permit requirements for mines and industrial facilities that was discussed at the September 6th meeting of the Water Resources Review Committee.


BILL:	Draft Leg Concerning Industrial Stormwater Permits
TIME:	12:39:27 PM
MOVED:	Brophy
MOTION:	Moved to draft a bill to relax permit requirements for industrial stormwater dischargers. The motion passed without objection.. The motion passed without objection.
SECONDED:	Hodge
		VOTE
	Baumgardner
	Brophy
	Giron	Excused
	Hodge
	Roberts
	Swerdfeger	Excused
	Vigil
	Wilson
	Schwartz
	Sonnenberg

Final YES: 0 NO: 0 EXC: 2 ABS: 0 FINAL ACTION: Pass Without Objection

12:40 PM

The meeting adjourned.