NOTICE OF PUBLIC RULEMAKING HEARING
BEFORE THE
COLORADO WATER QUALITY CONTROL COMMISSION

SUBJECT:

For consideration of the adoption of site-specific revisions to water quality standards for Cherry Creek Reservoir in the Classifications and Numeric Standards for South Platte River Basin, Laramie River Basin, Republican River Basin, Smoky Hill River Basin, Regulation #38 (5 CCR 1002-38) and revisions to the Cherry Creek Reservoir Control Regulation, Regulation #72 (5 CCR 1002-72). 

The revisions to Regulation #38 proposed by the Cherry Creek Basin Water Quality Authority, along with a proposed Statement of Basis, Specific Statutory Authority, and Purpose, are attached to this notice as Exhibit 1.  Revisions to Regulation #72 proposed by the Cherry Creek Basin Water Quality Authority, along with a proposed Statement of Basis, Specific Statutory Authority, and Purpose, are attached to this notice as Exhibit 2.  Revisions to Regulation #72 proposed by Parker Water and Sanitation District are attached to this notice as Exhibit 3.  Proposed new language is shown with double-underlining and proposed deletions are shown with strikeouts.   Any alternative proposals related to the revisions proposed in Exhibits 1 through 3, and developed in response to those proposed revisions, will also be considered.

HEARING SCHEDULE:

DATE:		Tuesday, March 10, 2009
TIME:		10:00 a.m.
PLACE:	Florence Sabin Conference Room
Department of Public Health and Environment
4300 Cherry Creek Drive South
Denver, Colorado  80246
PUBLIC PARTICIPATION ENCOURAGED:

The Commission encourages all interested persons to provide their opinions or recommendations regarding the matters to be addressed in this rulemaking hearing, either orally at the hearing or in writing prior to or at the hearing.  Although oral testimony from those with party status (see below) and other interested persons will be received at the hearing, the time available for such oral testimony may be limited.  Written submissions prior to the hearing are encouraged, so that they can be distributed to the Commission for review prior to the hearing.  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 or mailing list status (see below) generally will not be permitted.  The Commission requests that all interested persons submit to the Commission any available information that may be relevant in considering the noticed proposals. 

PARTY STATUS/MAILING LIST STATUS:

Participation as a "party" to this hearing or acquisition of "mailing list status," will require compliance with section 21.3(D) of the Procedural Rules, Regulation #21 (5 CCR 1002-21).  Mailing list status will allow receipt of all party documents (except individual exhibits more than five pages in length).  

It is not necessary to acquire party status or mailing list status in order to testify or comment.  For each request for party status or mailing list status, please provide the organization’s name, a contact person, mailing address, phone number, fax number and email address if available.    Written party status or mailing list status requests are due in the Commission Office on or before:

	DATE:		Tuesday, December 30, 2008
TIME:		5:00 p.m.

A single copy of the party status or mailing list status request may be transmitted as an email attachment to cdphe.wqcc@state.co.us, submitted by fax to 303-691-7702, mailed or otherwise conveyed so as to be received in the Commission Office no later than this deadline. PLEASE NOTE that, as indicated below, parties will have the option of distributing materials to other parties electronically, except in instances where a party has requested receiving hard copies of documents.  Therefore, anyone requesting party or mailing list status that wishes to receive hard copies of documents instead of emailed copies should so indicate in the party status/mailing list status request so that this information can be included on the list distributed by the Commission Office.

PREHEARING STATEMENTS:

PLEASE NOTE that for this hearing two separate deadlines for prehearing statements are established:  (1) An original and 13 copies of Proponent’s Prehearing Statements from the Cherry Creek Basin Water Quality Authority, as proponents of the revisions proposed in Exhibits 1 through 2 attached to this notice and Parker Water and Sanitation District, as proponents of the revisions proposed in Exhibit 3 attached to this notice, including written testimony and exhibits providing the basis for the proposals, must be received in the Commission Office no later than January 6, 2009; and (2) an original and 13 copies of a Responsive Prehearing Statement, including any exhibits, written testimony, and alternative proposals of the Water Quality Control Division or anyone seeking party status and intending to respond to the proponents’ proposals must be received in the Commission Office no later than January  27, 2009.  

For each deadline, the required number of hard copies of documents must be received in the Commission office by the specified deadline.  These requirements are not satisfied by electronic transmission of a facsimile copy or copies.  However, parties are also strongly encouraged to email a copy of their written documents to the Commission Office, so that materials received can be posted on the Commission’s web site.  (Please email to cdphe.wqcc@state.co.us.)   In addition, copies of these documents must be mailed or hand-delivered by the specified dates to all persons requesting party status or mailing list status, and to the Attorney General's Office representatives for the Commission and the Division, in accordance with a list provided by the Commission Office following the party status/mailing list status deadline.  Alternatively, parties may email documents to those with party status or mailing list status by the specified dates, except to those that the list distributed by the Commission Office identifies as requesting hard copies.

Also note that the Commission has prepared a document entitled Information for Parties to Water Quality Control Commission Rulemaking Hearings.  A copy of this document will be mailed or emailed to all persons requesting party status or mailing list status.  It is also posted on the Commission’s web site at http://www.cdphe.state.co.us/op/wqcc/PublicParticipation/HBappC.pdf.  Following the suggestions set forth in this document will enhance the effectiveness of parties’ input for this proceeding.  Please note the request that all parties submit two-sided copies of all hearing documents on three-hole punch paper.

MAILING LIST STATUS COMMENTS:

Those requesting mailing list status shall provide written testimony, if any testimony is to be offered for the hearing, by the above deadline for responsive prehearing statements – i.e., January 27, 2009.  Copies shall be submitted and distributed in the same manner as noted above for prehearing statements.

PREHEARING CONFERENCE:

DATE:		Thursday, February 5, 2009
TIME:		2:00 p.m.
PLACE:	Carson Room, Department of Public Health and Environment
4300 Cherry Creek Drive South
Denver, Colorado

Attendance at the prehearing conference is mandatory for all persons requesting party status.  An opportunity may be available to participate in this prehearing conference by telephone.  Persons wishing to participate by telephone should notify the Commission Office as early as possible. 

REBUTTAL STATEMENTS:

Written rebuttal statements responding to the prehearing statements due on January 27, 2009 may be submitted by anyone seeking party status or mailing list status.  Any such rebuttal statements must be received in the Commission Office by February 25, 2009.  An original and 13 copies of written rebuttal statements must be received in the Commission Office by this deadline, and submission of an emailed copy as noted above is strongly encouraged.  In addition, copies of these documents must be mailed or hand-delivered by that date to all those requesting party status or mailing list status, and to the Attorney General's Office representatives for the Commission and Division.  Alternatively, parties may email documents to those with party status or mailing list status by this deadline, except to those that the list distributed by the Commission Office identifies as requesting hard copies.  No other written materials will be accepted following this deadline except for good cause shown.

SPECIFIC STATUTORY AUTHORITY:

The provisions of sections 25-8-202(1)(b),(c) and (2); 25-8-204; 25-8-205; and 25-8-402 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.

NOTIFICATION OF POTENTIAL MATERIAL INJURY TO WATER RIGHTS:

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 in the party status request submitted.  In order for this potential to be considered fully by the Commission and the other agencies listed in the statute, persons must fully explain the basis for their claim in their prehearing statement which is due in the Commission Office on the date specified above.  This explanation should identify and describe the water right(s), and explain how and to what degree the material injury will be incurred.

Dated this 10th day of November 2008 at Denver, Colorado.

WATER QUALITY CONTROL COMMISSION

							
Paul D. Frohardt, Administrator

EXHIBIT 1
CHERRY CREEK BASIN WATER QUALITY AUTHORITY

regulation no. 38
classifications and numeric standards
for
south platte river basin, laramie river basin
republican river basin, smoky hill river basin

….
38.6	TABLES
….

STREAM CLASSIFICATIONS and WATER QUALITY STANDARDS

REGION: 3 and 4
               
BASIN: Cherry Creek	
Desig	
Classifications	
NUMERIC STANDARDS	
TEMPORARY
MODIFICATIONS
AND
QUALIFIERS

	
	
PHYSICAL
and
BIOLOGICAL	
INORGANIC

mg/l	
METALS

ug/l		

Stream Segment Description							
. . . .										
2.	Cherry Creek Reservoir.	
	Aq Life Warm 1
Recreation 1aE
Water Supply
Agriculture	D.O.=5.0 mg/l
pH=6.5-9.0
F.Coli=200/100ml
E.Coli=126/100ml
Season mean chlorophyll a = 1525  g/l 
measured in the upper three meters of the water column for the months of July through September	NH3(ac/ch)=TVS
Cl2(ac)=0.019
Cl2(ch)=0.011
CN=0.005	S=0.002
B=0.75
NO2=0.5
NO3=10
Cl=250
SO4=WS	As(ac)=50(Trec)
Cd(ac/ch)=TVS
CrIII(ac)=50(Trec)
CrVI(ac/ch)=TVS
Cu(ac/ch)=TVS	Fe(ch)=WS(dis)
Fe(ch)=1000(Trec)
Pb(ac/ch)=TVS
Mn(ac/ch)=TVS
Mn(ch)=WS(dis)
Hg(ch)=0.01(Tot)	Ni(ac/ch)=TVS
Se(ac/ch)=TVS
Ag(ac/ch)=TVS
Zn(ac/ch)=TVS		

CHERRY CREEK BASIN WATER QUALITY AUTHORITY
PROPOSED

38.72	STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE:  MARCH 10, 2009 RULEMAKING REGARDING CHERRY CREEK RESERVOIR; FINAL ACTION AUGUST 10, 2009; EFFECTIVE DATE JANUARY 1, 2010 
The provisions of C.R S. 25-8-202(1) (b), (c) and (2); 25-8-204; 25-8-205 and 25-8-402; C.R.S. provide the specific statutory authority for adoption of these regulatory amendments.  The Commission also adopted in compliance with 24-4-103(4) C.R.S. the following statement of basis and purpose.
At the same time that these changes were adopted in Regulation 38, the Commission adopted consistent changes in Regulation 72, Cherry Creek Reservoir Control Regulation (5 CCR 1002-72).  
BASIS AND PURPOSE
The classified uses for the Cherry Creek Reservoir (Reservoir) include warm water aquatic life class 1, recreation class E, water supply, and agriculture. The Reservoir is mildly eutrophic and has limited releases given the primary role of Cherry Creek Dam as a flood control structure. As a result of the data and analyses brought forward as part of the March 2009 Rulemaking Hearing, the Commission adopted revisions to the water quality standard for chlorophyll a in the Reservoir.  Specifically, the Commission has changed the chlorophyll a standard during the growing season of July through September from 15 µg/l to 25 µg/l with an eight out of ten year compliance period and, in Regulation 72 (5 CCR 1002-72), adopted a concentration-based approach to control total phosphorus in the inflow to the Reservoir.
Background and Overview
During the September 2000 Rulemaking Hearing, the Commission repealed the prior total phosphorus water quality standards for the Reservoir and adopted a chlorophyll a standard of 15 µg/l (previously a “goal”), to be measured in the upper three meters of the water column during July through September. The Commission’s original adoption of the 15 µg/l chlorophyll a level as a goal during the 1980s represented a compromise of the water quality and aquatic life proposals, which ranged from 10 µg/l to 20 µg/l, but the Commission recognized that further data was needed to scientifically establish an appropriate chlorophyll a standard.  To this end, the Cherry Creek Basin Water Quality Authority (Authority) and its member agencies conducted various studies since that time to obtain such data, with oversight by the Water Quality Control Division (“Division”).
In 2000, the Commission also retained a Total Maximum Annual Load (TMAL) of 14,270 pounds of total phosphorus to the Reservoir provided in Regulation 72, with a consideration that this be a “phased TMAL” while the referenced additional studies were completed.  The resulting phosphorus TMAL, which was a July through September seasonal average, was directly related to the chlorophyll a standard based on the Division’s use of a 90% confidence level that indicated an in-lake total phosphorus goal of 40 mg/l results in the achievement of a chlorophyll a standard of 15 µg/l or lower.  
The Commission further recognized in the 2000 Rulemaking Hearing the uncertain relationship between chlorophyll a and total phosphorus, such that the correlation resulting from that Rulemaking Hearing could change based on the analysis of the additional data obtained by the identified studies.  The Commission’s recognition of that uncertainty and the data modeling information obtained since that time provide the basis for adjusting the chlorophyll a standard in this rulemaking.
Cherry Creek Basin Water Quality Authority (Authority)
The Authority was formed to protect water quality in the Reservoir.  Regulation 72 (5 CCR 1002-72) was adopted by the Commission and provides the Authority with the authority to implement water quality control in the Cherry Creek Basin (Basin).  The Authority and its member agencies determined that water quality in the Reservoir could be improved by implementing water quality control management strategies in the Cherry Creek watershed.
The Authority has provided data to the Commission and Division from studies conducted since 2000 indicating that the overall loading of phosphorus has had no adverse affect on chlorophyll a levels in the Reservoir and that the concentration of phosphorus in Reservoir inflows has a more direct correlation to chlorophyll a levels in the Reservoir.  As a result, by controlling total phosphorus through a concentration-based approach at the inflow to the Reservoir, the Authority expects to continue improving water quality within the Reservoir while expanding the use of its funds for other projects beneficial to water quality within the Reservoir.  During the past seven years, the Authority and its member agencies have spent over $100 million improving wastewater treatment, installing Pollutant Reduction Facilities (PRF), and operation and maintenance activities in the Cherry Creek watershed to control phosphorus loads to the Reservoir.  These wastewater treatment and PRF improvements have also had a positive effect on reducing concentrations of phosphorus from point and nonpoint sources.  That concentration-based approach to controlling phosphorus input to the Reservoir is addressed in Regulation 72 (5 CCR 1002-72).
Growth and the Watershed
Although the Cherry Creek Basin has experienced unprecedented growth during the past 20 years, the Authority and its partners have succeeded in maintaining the Reservoir’s water quality and beneficial uses.  The Commission acknowledges that the Authority, its member agencies, and partners have improved wastewater treatment and have upgraded associated technologies, installed nonpoint source controls, and utilized its land use agency responsibilities to control phosphorus in the watershed and inflow to the Reservoir.  The Commission also acknowledges that the Authority and its member agencies are committed to continuing watershed improvements, understanding that the watershed conditions are expected to improve with time and effort. The Commission expects current water quality management strategies to continue and, as necessary, become more aggressive over time to attain water quality objectives and protect the uses of the Reservoir.  
Watershed and Reservoir Modeling
To interpret the monitoring data received through the investigations completed at the request of the Commission, the Authority commissioned two models:  a watershed model and reservoir model.  The Cherry Creek Basin Watershed Model is a dynamic water quality model that makes use of extensive water related data collected in the Cherry Creek watershed; whereas, the Cherry Creek Reservoir Model is an annual steady state mass-balance model that uses the phosphorus loads and total volume inflows to the reservoir to predict a chlorophyll a concentration.  The Commission acknowledges that the Authority’s studies indicate that the total inflow phosphorus concentration is the strongest predictor variable for evaluating in-lake chlorophyll a.  The Commission further acknowledges that current US EPA guidance allows for  water quality based effluent limits to be based on either a dynamic or steady state model.  The Authority relied upon both types of models to predict an appropriate numeric value for a chlorophyll a standard.  
Chlorophyll a Standard and Total Phosphorus Goal
Between 1999 and 2006, the Authority gathered data to expand the data set used by the Commission to reach its decisions in the September 2000 Rulemaking.  The Authority used this data and previously collected data in the watershed and reservoir models to identify protective yet achievable levels of chlorophyll a for the Reservoir.  Data collection specifically focused on a mass loading of total phosphorus to the Reservoir in an effort to control the chlorophyll a concentration.  During the Authority’s in-depth analysis of the collective data, the Authority identified a correlation between total phosphorus concentration in the inflow and in-lake chlorophyll a concentration.
 In the Reservoir, the Commission acknowledges that the 15 µg/l chlorophyll a standard has not been met 14 of the past 16 years (i.e., 1992 through 2006).  Similarly, the total phosphorus goal of 40 µg/l has never been achieved in the same 16-year period.  In 1999, the Reservoir recorded is highest chlorophyll a value, 28.9 µg/l.  Since 1999, despite continued population growth in the Basin, the Commission notes that the chlorophyll a data has exhibited a downward trend.  In both 2006 and 2007, the mean seasonal average of chlorophyll a was just below the current standard of 15 µg/l, yet the total phosphorus entering the Reservoir in 2007 was over 19,772 pounds, well exceeding the 14,270 pounds goal.  The Commission notes that the 2008 chlorophyll a average is again over the prior 15 µg/l standard.
Using the Division’s confidence level of 90% and the results of the reservoir model that incorporate additional data, the Commission has determined that the chlorophyll a standard of 15 µg/l is not achievable nine out of ten years and does not accurately reflect actual, achievable Reservoir conditions at this time.  The Commission notes that the July through September median seasonal chlorophyll a concentration measured in the Reservoir from 1992 to 2006 is 18.4 µg/l, and the 90th percentile value is 26.3 µg/l. 
Changes to the Standards
The 15 µg/l chlorophyll a standard previously adopted by the Commission was admittedly simply a numeric standard compromise, provided as a basis by which to measure actual Reservoir conditions but not based on actual sampling or modeling data.  The current best available scientific evidence consisting of data collected over the past 15 years and related watershed and reservoir modeling show that the prior compromise standard of 15 µg/l  does not accurately reflect actual site conditions and cannot be attained, given background phosphorus conditions and other related factors. To the contrary, the Commission finds that the evidence indicates that current control measures support the achievement of a seasonal July through September chlorophyll a concentration of 25 µg/l eight out of ten years and a concentration-based approach to total phosphorus control in the inflow of the Reservoir using the long-term median flow-weighted inflow value of 0.20 mg/l.  Basing the functional in-lake chlorophyll a standard on functionally, the 80th percentile (25 µg/l) while adopting a phosphorus goal for flow-weighted inflow concentrations at the median, or 50th percentile (0.20 mg/l), provides a margin of safety for controlling productivity in the reservoir and maintenance of controls in the watershed.  The Commission’s further review of the watershed and reservoir models as well as the water quality data for the Reservoir and inflows indicate that the adoption of a 25 µg/l chlorophyll a standard is protective of recreation and aquatic life uses in the Reservoir.  Accordingly, the Commission adopted a chlorophyll a standard of 25 µg/l.  The Commission also struck the fecal coliform standard and recreation class 1a to be consistent with Regulation 31 (5 CCR 1002-31) and replaced recreation class 1a with recreation class E.   
Given the Authority’s duty to continue its water quality control management strategies, the Commission’s adoption of a 25 µg/l chlorophyll a standard will not result in a reduction or change in the Authority’s commitment to controlling chlorophyll a in the Reservoir. The Commission’s adoption of revisions to Regulation 72 (5 CCR 1002-72) reflect the Authority’s commitment to maintain current water quality management strategies and, as necessary, become more aggressive over time to attain water quality objectives and protect the uses of the Reservoir.  
The Commission concludes that both the control regulation and the underlying standards should be revisited as efforts are implemented over time, such that more information is developed regarding influences on, and the attainability of, identified levels of Reservoir water quality.
This records the Commission’s intent as to how the Division and stakeholders should proceed.  
EXHIBIT 2
CHERRY CREEK BASIN WATER QUALITY AUTHORITY

DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
Water Quality Control Commission
CHERRY CREEK RESERVOIR CONTROL REGULATION
5 CCR 1002-72
72.1 	AUTHORITY
The Water Quality Control Commission is authorized to promulgate this Control Regulation pursuant to sections 25-8-202(1)(c) and 25-8-205, C.R.S. 
72.2 	DEFINITIONS
See the Colorado Water Quality Control Act and other Water Quality Control Commission regulations for additional definitions. 
1.	"Authority" means the Cherry Creek Basin Water Quality Authority established pursuant to section 25-8.5-101, et seq., C.R.S. 
2. 	"Background sources" include loadingconcentrations to the reservoir that isare not the result of human-related activities, such as groundwater in its natural condition and precipitation on the reservoir.  
3. 	"Best management practice (BMP)" means the best schedules of activities, prohibitions or practices, operation and maintenance procedures, and other management practices to prevent or reduce the introduction of pollutants into state waters. Best management practicesfrom regulated stormwater.  BMPs include, but are not limited to, structural and nonstructural controls, treatment requirements, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage. Best management practices  BMPs can be applied before, during, and after pollution-producing activities. 
4. 	"Cherry Creek watershed" consists of all lands that drain into the following:  (a) the mainstem of Cherry Creek, from the source of East and West Cherry Creek to the inlet of Cherry Creek Reservoir (Segment 1), including alluvial groundwater; (b) Cherry Creek Reservoir (Segment 2), including alluvial groundwater; and (c) all tributaries to Cherry Creek, including all lakes, reservoirs, wetlands, and alluvial groundwater, from the sources of East and West Cherry Creeks (parts of Segment 4) as described in the Classifications and Numeric Standards - South Platte River Watershed, Regulation No. 38 (5 CCR 1002-38).  The Cherry Creek Watershed is delineated in Figure 1 attached to this regulation. 
5.  	"Concentration" for the purposes of this regulation only, means the total phosphorus concentration in discharges related to existing or future non-point source and regulated stormwater discharges, wastewater facility sources, industrial process wastewater sources, individual sewage disposal systems and background sources.
6.  	"Concentration-Based Control of Phosphorus" means the flow-weighted concentration of total phosphorus allowed in the inflow to Cherry Creek Reservoir that is intended to result in the attainment of water quality standards for Cherry Creek Reservoir.  
7. 	"Designated water quality management agency" means the agency identified by the Denver Regional Council of Governments Metro Vision Clean Water Plan and by the Governor to implement specific control recommendations. 
6.8. 	"Direct discharge" means any discharge to any surface waters or subsurface waters, including discharge from rapid infiltration basins, related to Cherry Creek or its tributaries, except by land disposal or land treatment. "Direct discharge" does not include discharges from regulated stormwater and background sources. 
7.9. 	"Disturbed areas" means any site, area or lands in the Cherry Creek watershed where a land disturbance has commenced but has not been permanently stabilized and/or revegetated. 
8.10. 	"Division" means the Water Quality Control Division of the Colorado Department of Public Health and Environment. 
11.	"Enhanced BMP" means a BMP that uses water quality capture volume as the design basis and incorporates one or more of the following treatment technologies:  retention, wetlands, filtration, infiltration, or other technology with similar capabilities to reduce phosphorus concentrations in the discharge.
9.12. 	"Effluent limitation" means any restriction or prohibition established pursuant to this regulation, the Colorado Water Quality Control Act, or the federal act on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into state waters, including, but not limited to, standards of performance for new sources, toxic effluent standards, and schedules of compliance. 
13.	"Flow-weighted phosphorus concentrations" means the total external load, including precipitation, groundwater, stream flow, and ungaged runoff, divided by total inflow volume.
10.14. 	"Individual home construction" means any land disturbance or development for a single home, not including land disturbances for roads, road gutters or road improvements, that disturbs less than one acre of land and where the Owner of the single home holds a permit for construction of only one dwelling within the subdivision, if any, containing the single home. 
11.15. 	"Individual sewage disposal system (ISDS)" means a system or facility for treating, neutralizing, stabilizing, or disposing of wastewater that is not a part of or connected to a wastewater facility, as defined in this section. 
12.16. 	"Industrial process wastewater sources" include, but are not limited to, facilities, or activities that discharge non-domestic process wastewater, such as effluent from construction dewatering and sand and gravel mining. or any water that, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product.  "Industrial process wastewater sources" do not include facilities or activities that discharge into a wastewater facility, as defined in this section.  For the purpose of this regulation only, such sources also do not include such activities as hydrostatic testing operations, treatedhydrant flushing, water distribution systems andmain repairs, drinking water treatment backwashfacilities, dewatering or foundation draining, and swimming pool drainage. 
13.17. 	"Land application" is any discharge being applied directly to the land for land disposal or land treatment and does not include discharges to surface waters, even if such waters are subsequently diverted and applied to the land. 
14.18. 	"Land application return flow factor" means the return flow factor for land application sites in an augmentation plan decreed by the Colorado District Court, Water Division, or, where an augmentation plan has not been decreed, a study similar to that which would be required to support an augmentation plan. 
15.19. 	"Land disposal" means any discharge of pollutant-containing waters being applied to land for which no land treatment is intended. 
16.20. 	"Land disturbance" means a man-made change in the natural cover or topography of the land, including grading, cutting and filling, building, paving, excavating and any other activities that may result in or contribute to soil erosion or sedimentation in waters or discharge of pollutants, as identified in section 72.7(2)72.7.2(b) of this regulation, except individual home construction, as defined in this section. 
17.21. 	"Land treatment" means any discharge of pollutant-containing waters being applied to the land for the purpose of treatment. 
18.22. 	"Local government" means a city, town, county, district, association, or other public body created by or under State law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes, or a designated and approved management agency under section 208 of the federal Clean Water Act. 
19.23. 	"Municipal separate storm sewer system" or "MS4" means a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains): 
(a) 	owned or operated by a State, city, town, county, district, association, or other public body (created by or pursuant to State law) having jurisdiction over disposal of sewage, industrial wastes, stormwater, or other wastes, including special districts under State law such as a sewer district, flood control district or drainage district, or similar entity, or a designated and approved management agency under section 208 of the CWA that discharges to state waters; 
(b) 	designed or used for collecting or conveying stormwater; 
(c) 	which is not a combined sewer; and 
(d) 	which is not part of a Publicly Owned Treatment Works (POTW). 
20. 24.	"Nonpoint source" means any activity or facility other than a point source from which pollutants are or may be discharged.  For the purposes of this regulation, nonpoint source includes all runoff that is not subject to the requirements provided under 5 CCR 1002-61Regulation 61, section 61.3(2)(e), (f), or (g), including those designated by the Division under section 61.3(2)(f)(iii), whether sheet flows or collected and conveyed through channels, conduits, pipes or other discrete conveyances. 
21. 	"Phosphorus Bank" consists of those certain credits that can be assigned to the Phosphorus Bank by the entity instituting the nonpoint source project, held as credits for possible future use by the entity instituting the trade or its designee, or permanently retired to further protect water quality. 
22.25. 	"Point source" means any discernible, confined, and discrete conveyance, including but not limited to, and any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.  "Point source" includes conveyances of regulated stormwater.  "Point source" does not include irrigation return flows. 
26.	"Polluant Reduction Facility (PRF)" means projects constructed or funded wholly or in part by the Authority that reduce nonpoint source pollutants in stormwater runoff that may also contain regulated stormwater. PRFs are structural measures that include, but are not limited to, detention, wetlands, filtration, infiltration, and other technologies with the primary purpose of reducing pollutant concentrations entering the Reservoir or that protect the beneficial uses of the Reservoir.  
23.27. 	"Process wastewater" means any water, which, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product. "Process wastewater" includes any process-generated wastewater from concentrated animal feeding operations required to obtain a Colorado Discharge Permit System permit.  
24.28. 	"Regulated stormwater" means stormwater discharges to state waters that are from regulated entities; i.e., industrial or commercial facilities, or municipal separate storm sewer systems regulated under 5 CCR 1002-61Regulation 61, section 61.3(2)(e), (f), or (g), including those designated by the Division under section 61.3(2)(f)(iii). 
25. 	"Reserve Pool" consists of those wastewater facility phosphorus pounds available from historic Authority nonpoint source projects that may be awarded by the Authority to those facilities in the Cherry Creek Watershed pursuant to section 72.5(2). 
26. 	"Semi-urban areas" means potential development areas that are outside the overall urban growth boundary established by the Denver Regional Council of Governments Metro Vision Plan or are assigned urban areas not affiliated with a service provider. These areas have not been included within a designated service area assigned to existing wastewater facilities, which have wasteload allocations as specified in Section 72.4, but are designated planning areas that are planned for urbanization after 20 years. 
27. 	"Stormwater" means stormwater runoff, snowmelt runoff, and surface runoff and drainage. 
28. 	"TMAL" means the "Total Maximum Annual Load" of phosphorus allowed that is intended to result in the attainment of water quality standards for Cherry Creek Reservoir. The TMAL is derived from the sums of the phosphorus loads related to Nonpoint and Regulated Stormwater Sources, Background Sources, Wastewater Facility Sources, Industrial Process Wastewater Sources, and Individual Sewage Disposal Systems plus a Margin of Safety. 
29. 	"Trade ratio" means the number of phosphorus pounds removed by a nonpoint source project required for the award of one (1) phosphorus wasteload allocation pound in the Trading Program. 
30. 	"Trading Program" means the program administered by the Authority for nonpoint to point source phosphorus trading in the Cherry Creek watershed. 
29. 	"Stormwater" for purposes of this regulation shall have the same meaning given in Regulation 61 (5 CCR 1002-61).
30. 	"TMAL" means the "Total Maximum Annual Load" of phosphorus and for purposes of this regulation only is applied as a flow-weighted inflow concentration-based TMAL.  The TMAL is developed in association with the annual flow-weighted concentration-based limit for inflow to the reservoir established in accordance with applicable EPA Guidance (June 2007).  
31. 	"Wasteload allocation" means the portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources of pollution. 
32.31. 	"Wastewater facility" means a system or facility for treating, neutralizing, stabilizing, or disposing of domestic wastewater which system or facility has a designed capacity to receive more than two thousand gallons of domestic wastewater per day.  The term "wastewater facility" also includes appurtenances to such system or facility, such as outfall sewers and pumping stations, and to equipment related to such appurtenances.  The term "wastewater facility" does not include industrial wastewater treatment plants or complexes whose primary function is the treatment of industrial wastes, notwithstanding the fact that human wastes generated incidentally to the industrial processes are treated therein. 
33.32. 	"Water quality capture volume (WQCV)" means the runoff retention capacity of a BMP that is designed to capture and treat, at a minimum, the 80th percentile runoff event from an entire site, i.e., 80 percent of the most frequent occurring storms are fully captured and treated and larger events are partially treated. 
72.3 	PHASE 1 TOTAL MAXIMUM ANNUAL PHOSPHORUS LOAD ALLOCATIONS CONCENTRATION-BASED PHOSPHORUS CONTROL
A total maximum annual load (TMAL) of phosphorus shall be developed for Cherry Creek Reservoir. Activities necessary to reducemeet the actual phosphorus loads to an amount no greater than the TMAL shall be implemented under a phased approach consistent with EPA guidance. Attainment of the TMAL may require progressive development of point source and nonpoint controls. Additional point source controls regarding wasteload allocations andinflow total phosphorus concentration goal to Cherry Creek Reservoir will be implemented throughout the watershed.  Point source controls and discharge effluent limitations are specified in Section 72.4,. and the construction of nonpoint source control projects is specified in Section 72.6(1)(c). Continued water quality monitoring, specific modeling, and special investigative studies will be conducted to complete this first phase. This Phase 1 TMAL will implement further controls on point sources, stormwater, and nonpoint sources while sufficient information on the phosphorus loadings to the watershed and reservoir are developed to support revision of the TMAL.  A flow-weighted concentration-based TMAL for total phosphorus was developed for Cherry Creek Reservoir. 
1. 	The following annual cumulative mass loads of phosphorus to the Cherry Creek Reservoir as shown below shall not be exceeded. In no event shall these allocations be construed to allow wastewater facility sources in excess of the requirements of sections 72.4 and 72.6 of this regulation for the total phosphorus load. 
2. 	The total maximum annual load for total phosphorus by sources is based on the formula of TMAL = Nonpoint and Regulated Stormwater Sources + Background Sources + Wastewater Facility Sources + Industrial Process Wastewater Sources + Individual Sewage Disposal Systems + Margin of Safety. The TMAL phosphorus poundage allocations are distributed among the sources as follows: 
Allocation Type 					Total Phosphorus
							Pounds/Year
Nonpoint and Regulated Stormwater Sources: 		10,506 lbs./yr1
1  Cherry Creek Reservoir modeling identified nonpoint source loads of phosphorus at a nonpoint source and stormwater inflow of 10,997 acre feet per year. These values were based on a methodology that determined phosphorus loading and runoff volume according to land use for the year 2000. DRCOG Cherry Creek Basin Water Quality Management Master Plan, Technical Report, 1985. 
Background Sources: 					1,170 lbs./yr 
Wastewater Facility Sources
(Including Reserve Pool and Semi Urban
Areas): 							2,094 lbs./yr
Industrial Process Wastewater Sources: 		50 lbs./yr 
Individual Sewage Disposal Systems: 			450 lbs./yr 
Phosphorus Bank 					-0- lbs./yr 
Total Maximum Annual Phosphorus Load: 		14,270 lbs./yr 
3. 	Any phosphorus poundage authorized to be awarded to wastewater facility and industrial process wastewater dischargers through the Trading Program specified in section 72.5(3) shall not result in the exceedance of the TMAL specified above. As transfers of Phosphorus pounds are authorized through the Trading Program, Wastewater Facility Sources and Industrial Process Wastewater Sources may receive higher allocations, with a decrease of at least twice as many Phosphorus pounds in the allocations for the Nonpoint and Regulated Stormwater Sources, or Individual Sewage Disposal Systems. 
4. 	The activities to provide reasonable progress in attaining water quality standards and support revisions to the TMAL are identified below.
Activities, which include, but are not limited to, construction of nonpoint source projects, called PRFs, and regulated stormwater projects, called BMPs, shall be implemented and designed to reduce phosphorous concentrations to the maximum extent practicable.  The construction of any nonpoint source control projectsPRFs and BMPs shall be consistent with the requirements in Section 72.6(1). 72.6.1. The Authority and the permittees shall implement these activities prior to the next triennial review, as allowed by applicable funding levels, for review by the Division and Commission at the next triennial review. Results from the Authority's implementation of this control regulation and the special studies listed below may suggest redefining and reprioritizing special studies. The Authority shall annually submit an updated list of special studies with proposed priorities for review and approval by the Division, annually,activities in their annual report to the Commission, due March 31 of each year. The activities shall include, but are not limited to, the following items:  
(1) 	Construction of nonpoint source control projects;
(2) 	Reservoir nutrient enrichment studies; 
(3) 	Further development of event mean concentration for stormwater flows;
(4) 	Further quantification of soil and ground water background phosphorus levels; 
(5) 	Identification of industrial process wastewater sources and associated phosphorus loading; 
(6) 	Evaluation of phosphorus removal effectiveness of nonpoint source control structures; 
(7) 	Monitoring of shallow alluvial ground water loading in tributaries; 
(8) 	Quantification of individual sewage disposal system phosphorus loading, 
(9) 	Implementation of lower phosphorus effluent limits; 
(10) 	Characterization of watershed hydrology to establish reference condition for evaluation of phosphorus loading;
(11) 	Depth profiling of nutrient content for ground water; 
(12) 	Revised calculations of background sources, industrial process wastewater sources, and individual sewage disposal systems sources of phosphorus contributions; and
(13) 	Revision of control regulation TMAL for next triennial review. 
Should implementation of this control regulation be unsuccessful in achieving the chlorophyll a standard eight out of ten years, the Commission shall review the Regulation as a whole. 
72.4 	WASTEWATER FACILITY WASTELOAD ALLOCATIONS AND EFFLUENT LIMITATIONS
1. 	The Division shall not issue industrial process wastewater sources and wastewater facility discharge permits (pursuant to Regulation 61) or notices of authorizations for use of reclaimed water (pursuant to Regulation 84) to any wastewater facilities and industrial process wastewater sourcespoint source discharges, including new point sources, that allow effluent limitations exceeding their total phosphorus allocation, unless such exceedances consist solely of phosphorus pounds awarded from the Reserve Pool, Semi Urban areas, or that are authorized through the Trading Program or by Temporary Transfers. However, in no event shall these allocations be construed to allow discharges in violation of the requirements of section 72.4, subject to approved trades pursuant to Section 72.5(3).(permitted phosphorus concentration) exceeding the 0.05 mg/l total phosphorus.  
2. 	The annual point source allocation of phosphorus in the Cherry Creek Watershed is allocated among the wastewater facilities, industrial process wastewater sources, and developing areas as follows: 
2.  	The Division shall not issue discharge permits (pursuant to Regulation 61) or notices of authorizations for drinking water treatment facilities that allow effluent limitations exceeding 0.2 mg/l phosphorus concentration pertaining to this control regulation as a 30-day average or authorizes the Division, at the request of a permittee, to allow up to a 90-day averaging period for this limit in its individual permit.  Nothing in this regulation should be construed to supersede the Colorado Primary Drinking Water Regulations and the Drinking Water Program.
FACILITY 						LBS./YR2 
ACWWA/Cottonwood Water and 			402
Sanitation District3 
Denver Southeast Suburban 				304
Water and Sanitation District
Inverness Water and Sanitation				129
District
Meridian Metropolitan District 				113 
Parker Water and Sanitation 				533
District
Stonegate Center Metropolitan				161
District
Plum Creek Wastewater Authority4 			25
Authority4
City of Aurora4 						10 
Semi-urban Areas 					201 
Industrial Process Wastewater 	 			 50
Sources
Subtotal 						1,928 
Reserve Pool 						216 
Phosphorus Bank 	 				  -0- 
Total 							2,144 
2 The above wasteload allocations for the listed wastewater facilities are not deemed to be the grant of a property right for any number of phosphorus pounds, and such allocations may be changed by the Commission upon good cause shown during regular reviews of this regulation. 
3 The Cottonwood Water and Sanitation District (Cottonwood) and Arapahoe County Water and Wastewater Authority (ACWWA) have entered into an intergovernmental agreement under which the Cottonwood wastewater flows are treated at the ACWWA wastewater treatment facility. The previous Arapahoe Water and Sanitation District and Cottonwood wastewater service areas were consolidated into a single ACWWA wastewater service area in the Clean Water Plan. 
4 The allocations to Plum Creek Wastewater Authority and City of Aurora are not for direct discharge; these facilities limit the use of their allocations to Land Applications within the Cherry Creek Watershed. 
3. 	Nutrient monitoring for industrial process wastewater sources and wastewater facilities shall be in accordance with the requirements of subsection 72.8.1.
3. 	Every wastewater facility and industrial process wastewater source must obtain a sufficient phosphorus wasteload allocation prior to commencing discharges or notices of authorization for use of reclaimed water into the Cherry Creek watershed. Expanded or new wasteload allocations shall be taken from the Reserve Pool or from phosphorus pounds authorized by the Trading Program, Temporary Transfers, or from the Semi-urban Areas category. Wasteload allocations for direct discharges must be sufficient for the annual loading resulting from a discharge at the design hydraulic capacity and a discharge concentration of 0.05 mg/l total phosphorus or less. Wasteload allocations for land application must be sufficient for the annual loading using the product of the design flow and the land application return flow factor and the discharge concentration (pursuant to paragraph 4 below). For land application sites using lysimeters, concentrations to determine annual loading will be measured directly in the lysimeters pursuant to 72.4(5)(c). 
4. 	Notwithstanding the wasteload allocations specified in section 72.4(2), by no later than August 1, 2004, no direct discharger.No industrial process wastewater source or wastewater facility within the Cherry Creek watershed shall discharge an effluent with a total phosphorus concentration greater than 0.05 mg/l total phosphorus as a 30-day average. By no later than August 1, 2004, no or authorizes the Division, at the request of a permittee, to allow up to a 90-day averaging period for this limit in its individual permit.  No land application with a return flow factor established in accordance with section 72.4.5.(a) or (b) shall discharge a 30-day flow-weighted average phosphorus concentration or authorizes the Division, at the request of a permittee, to allow up to a 90-day averaging period for this limit in its individual permit at any site that is greater than 0.05 mg/l total phosphorus divided by the land application return flow factor (described in subsection 5 below).   Where land application is relying on lysimeters to determine the amount of water returned to ground water in accordance with section 72.4.5.(c), the effluent concentration prior to being applied to the land shall not exceed 1.0 mg/l total phosphorus. 
5. 	For purposes of this regulation, return flow factors for land application sites shall be determined as follows: 
(a) 	For land application sites with decreed augmentation plans, the return flow factor shall be determined from the applicable augmentation plan. 
(b) 	For land application sites with available studies of return flow factors, but no approved augmentation plan, the return flow factor may be determined upon Division approval from the study results. 
(c) 	Where no approved augmentation plan or available study exists, or where the Division has not approved the use of an available study, lysimeters shall be installed in accordance with a plan approved by the Division and readings from such lysimeters will be used to determine the monthly volume discharged at each land application site. 
6. 	Whenever a discharger requests a compliance schedule in connection with a permit issuance or permit renewal, the discharger shall (on the same date) notify the Authority of that request, solicit Authority comments, and submit evidence of that notice to the Division.  The Division shall not take final action on any compliance schedule until Authority comments are received or 45 days after the date that notice was provided to the Authority, whichever occurs first.  This provision shall not apply in the case of minor modifications to permits as defined by Regulation 61, section 61.8(8)(e), 5 CCR 1002-61. 
7. 	Allocation of phosphorus from the wasteload allocation for Semi-urban Areas may be made to new wastewater facilities serving areas within the urban growth boundary shown in the DRCOG Metro Vision Clean Water Plan. Allocation of phosphorus from the wasteload allocation for Semi-urban Areas may also be made to an existing wastewater facility that is accepting wastewater from new development outside of its service area, but within the planning area for another entity. Where the growth to be served is outside of the service area of another entity, the Authority may grant an allocation upon receipt of a letter from DRCOG that confirms that the proposed area has been incorporated into the urban growth boundary. 
8. 	For all wastewater facilities, the monthly and annual quantity of total phosphorus discharged shall be determined as follows: 
(a) 	For each direct discharge outfall and for each land application site, monthly phosphorus loads (pounds of total phosphorus) contributed shall be determined based upon the following formula: 
Monthly Phosphorus Load (Pounds) = Monthly volume discharged (million gal) x Phosphorus Conc. (mg/l) x 8.34 
The total monthly phosphorus load (pounds of total phosphorus) contributed shall be the sum of the monthly phosphorus loads for each site as calculated above 
(b) 	Calculations for volume discharged shall be determined by: 
(1) 	For wastewater facilities utilizing land application with return flow factors determined in accordance with section 72.4.5 (a) or (b), the monthly volume discharged shall be calculated by the following formula: 
Monthly Volume Discharged (Million Gallons (MG)) = Sum of (Volume applied to each site (MG) x respective land application return flow factor) 
(2) 	For wastewater facilities utilizing land application with lysimeters in accordance with section 72.4.5 (c), the monthly volume discharged at each individual site shall be calculated by the following formula 
Monthly Volume Discharged = Volume in all lysimeters for a land application site (gallons) X Area of land application site (sq ft)
(Million Gallons (MG)) 			Total area of lysimeters for that site (sq ft) (1,000,000 gal/MG) 
(3) 	For direct discharge wastewater facilities, the monthly volume shall be the total volume of effluent (in MG) measured at each outfall. 
(c) 	Phosphorus concentration shall be determined by: 
7. 	For all land application sites, the phosphorus concentration shall be determined by: 
(1a)	Phosphorus concentrations for each direct discharge and land disposal site using a return flow factor will be calculated by the following formula: 
Phosphorus Concentration (mg/l) = (Sum of the concentrations of all samples (mg/l as P) for the outfall or land app. site for the month 
                                                        The number of samples collected and analyzed for that month) 
Applied Phosphorus Concentration (mg/l) =  (Sum of the concentrations of all samples (mg/l as P) for the outfall or land application site for the month / the number of samples collected and analyzed for that month) /  the return flow factor
(2b) 	Phosphorus concentrations for each land disposaltreatment site using lysimeters will be calculated by the following formula: 
Applied Phosphorus Conc.(mg/l) =  Sum of concentrations of all samples (mg/l as P) for each lysimeter in the land app. site for the month 
                                                                                The number of lysimeters 
Applied Phosphorus Concentration (mg/l) =  Sum of concentrations of all samples (mg/l as P) for each lysimeter in the land application site for the month /  the number of lysimeters
(3) 	The annual phosphorus wasteload shall be the sum of the monthly phosphorus loads for each direct discharge outfall and land application site calculated for that calendar year and shall not exceed the wasteload allocations set forth in section 72.4(2). 
9.8.	ADDITIONAL PROHIBITIONS AND PRECAUTIONARY MEASURES
If flow-weighted concentration-based controls on phosphorus contributions from point sources are not effective in reducing phosphorus loadsconcentrations and attaining water quality standards, the Commission may consider the adoption of prohibitions or precautionary measures to further limit phosphorus loadingconcentrations in the watershed, including but not limited to, the following potential phosphorus sourcesdischarges allowed under Regulation 61 (5 CCR 1002-61): 
(a) 	Hydrostatic testing operations; 
(b) 	Construction dewatering; 
(c) 	Treated water distribution systems and water treatment backwash; 
(d) 	Dewatering or foundation draining; and 
(e) 	Swimming pool drainage. 
72.5 	POINT SOURCE WASTELOAD ALLOCATIONEFFLUENT LIMITATION MODIFICATIONS (RESERVED)
1. 	TEMPORARY TRANSFER OF PHOSPHORUS ALLOCATIONS
(a) 	The Authority is authorized, upon request by an applicant, to approve a temporary transfer of all or a portion of a wastewater facility's annual allocation of phosphorus for a given year or years. 
(1) 	In determining whether to approve a temporary transfer of all or a portion of a facility's annual allocation of phosphorus, the Authority shall consider, in addition to other factors, the following: 
(i) 	whether such transfer is agreed to by both the transferring and the receiving wastewater facilities; and 
(ii) 	whether the receiving discharger has taken or is committed to take all reasonable interim steps to decrease, to the extent practicable, the total phosphorus loading; 
(b) 	The transfer of the phosphorus allocation shall become effective upon the Authority's final decision, subject to appeal as provided in section 72.5(4). 
(c) 	No discharge based upon the transfer of the phosphorus allocation shall be permitted until the applicant's discharge permit is amended, as appropriate, by the Division. 
(d) 	All temporary transfers of phosphorus shall be reviewed at the triennial review of this regulation to determine if the wasteload allocation requires revision. 
2. 	RESERVE POOL
(a) 	A Reserve Pool shall be retained as a means of granting phosphorus wasteload allocations to new or existing wastewater facilities or industrial process wastewater sources. Award of an allocation of phosphorus from the Reserve Pool shall reduce the amount of phosphorus credited in the Reserve Pool by an amount equal to the allocation provided to the point source. Allocation of phosphorus from the Reserve Pool must meet the requirements of Section 72.4. 
(b) 	The Authority is authorized, upon request by an applicant supported by sufficient information, to allocate phosphorus from the Reserve Pool to a new or existing discharger. In determining whether to allocate phosphorus from the Reserve Pool, the Authority shall consider a comparative assessment of the need of the discharger, the present and future needs of other facilities in the Cherry Creek watershed, and the present and future availability of phosphorus allocations for point source discharges. 
(c) 	The allocation of phosphorus from the Reserve Pool shall become effective upon the Authority's final decision, subject to appeal as provided in section 72.5(4). 
(d) 	No discharge based upon the phosphorus allocation from the Reserve Pool shall be permitted until the applicant obtains a discharge permit or amendment to its discharge permit, as appropriate, from the Division. 
(e) 	Any revenue received by the Authority from the sale of pounds of phosphorus out of the Reserve Pool shall be restricted to use for activities required by this control regulation. 
3. 	TRADING PROGRAM
(a) 	In furtherance of attaining the chlorophyll a standard, the Authority is authorized to implement and maintain a Trading Program for the Cherry Creek watershed that allows credits from certain nonpoint source projects to be allocated to point source dischargers, or to be held as credits in a Phosphorus Bank for allocation in the future. The Trading Program shall not result in an exceedance of the total maximum annual phosphorus load as specified in section 72.3(2). 
(b) 	Nonpoint source projects funded by the Authority shall not be eligible for trading. 
(c) 	Municipal water supply operations that may have an incidental benefit of reducing phosphorus loading shall not be eligible for trading. Other activities that may reduce phosphorus loading beyond that which would occur as a result of the normal development and operation of such a project shall be eligible for trading. 
(d) 	Credits for phosphorus trading shall be determined initially upon site-specific monitoring data or best available scientific evidence of similar types of projects that characterize the representative annual phosphorus loading reduction achieved by the nonpoint source project. 
(e) 	Trades will be limited to the three following types of nonpoint source projects: 
(1) 	existing developed areas for which BMPs were not constructed during the original development activities; 
(2) 	existing required BMPs that are retrofitted or expanded to achieve a higher level of phosphorus removal; or 
(3) 	BMPs for new development that demonstrate phosphorus reduction greater than that resulting from the implementation of the BMPs required in Section 72.7 through provision of additional physical or chemical processes, or through enhanced operational or maintenance procedures. 
(f) 	The Authority may approve trading program projects described in section 72.5(3)(e) in accordance with this section 72.3(3), and 72.4(6). Credits from such projects may be assigned by the project proponent as follows: 
(1) 	a credit to the entity instituting the nonpoint source project or its designee for incorporation into their allocation, or 
(2) 	a credit may be held in the Phosphorus Bank for possible future use or transfer by the entity instituting the trade, or 
(3) 	a credit may be permanently retired to further protect water quality. 
(g) 	The minimum ratio to be utilized in calculating nonpoint source to point source trades shall be 2 pounds of nonpoint source phosphorus removed for 1 pound of point source phosphorus discharged. Prior to determining the final trade ratio, individual trades shall be subject to adjustments in order to assure that: 
(1) 	the relative load of dissolved and particulate phosphorus between the nonpoint source from which the load is reduced and the point source that receives the credit is comparable; 
(2) 	the fate and transport characteristics (e.g. chemical and physical transformations and time of travel) of the reduced and controlled phosphorus to be traded from a nonpoint source project are similar or pose a greater risk of impact upon the reservoir than the phosphorus loading to be discharged from the point source receiving the credit. 
(h) 	The Authority's approval of nonpoint source to point source trades, and the determination of the amount of credit, shall be based upon the following criteria: 
(1) 	consistency with this control regulation; 
(2) 	net effect on water quality in the Cherry Creek watershed; 
(3) 	completeness and technical soundness of the project; 
(4) 	submittal of the operations and maintenance requirements to assure continuous control; 
(5) 	anticipated treatment efficiency of the facility to be awarded the credit; 
(6) 	submittal of a monitoring plan that characterizes and evaluates the annual phosphorus loading reduction; 
(7) 	compliance with discharge permit effluent limitations by the facility to be awarded the credit; and 
(8) 	evaluation and comments from the Division. 
(i) 	The Authority shall maintain a Phosphorus Bank for use by entities that have either gained approval for trade credits by the Authority that will not be allocated at the time the nonpoint source project is completed, or completed a project as defined in 72.5(3)(d) for which a trade has not yet been proposed. An entity that has a credit in the Phosphorus Bank may choose to release the credits to another entity based upon the following criteria: 
(1) 	the requirements in 72.5.3(f) listed above; 
(2) 	a recalculation of the trade ratio, if appropriate, as required in 72.5.3(g); and 
(3) 	an agreement between the entity placing the pounds in the Phosphorus Bank and the entity receiving the pounds recognizing the arrangement. 
(j) 	The use of allocated trade credits and retention of credits in the Phosphorus Bank shall be based on continued demonstration of the performance of the nonpoint source project as based on the monitoring plan in Section 72.5(3)(h)(6). The Authority shall retain the right to modify or revoke a trade based on compliance with the requirements specified in Section 72.5(3)(h). 
(k) 	Phosphorus allocations awarded pursuant to the Trading Program, and all Authority decisions regarding trades, shall be effective upon the Authority's final decision, subject to appeal as provided in section 72.5(4). No discharge of phosphorus allocated from the Phosphorus Bank under the Trading Program shall be permitted until the applicant's discharge permit is amended, as appropriate, by the Division. 
(l) 	In future revisions to this control regulation, that may be necessary to attain the chlorophyll a standard, the Commission may reallocate or reduce phosphorous credits authorized from the Phosphorus Bank, as well as from the allocations for phosphorus sources in the watershed, where monitoring demonstrates that the performance of nonpoint source projects have not met these minimum requirements. 
4. 	ADJUDICATORY HEARINGS
(a) 	Any person adversely affected or aggrieved by a final decision of the Authority on temporary transfers pursuant to section 72.5(1) or on awards of phosphorus pounds from the Reserve Pool pursuant to section 72.5(2) may request an adjudicatory hearing before the Commission under the requirements and procedures of section 21.4, 5 C.C.R. 1002-21. Decisions in such adjudicatory hearings shall be based upon the criteria enumerated in this Control Regulation. 
(b) 	Any person adversely affected or aggrieved by a final decision of the Authority on assignment of phosphorus pounds to the Phosphorus Bank, on awards of phosphorus pounds from the Phosphorus Bank, or on trades involving individual nonpoint source projects under the Trading Program in section 72.5(3), may request an adjudicatory hearing before the Commission under the requirements and procedures of section 21.4, 5 C.C.R. 1002-21. Decisions in such adjudicatory hearings shall be based upon the Authority's decision-making criteria set forth in section 72.5(3). 
(c) 	All adjudicatory hearings under this section shall be conducted in accordance with the provisions of sections 24-4-105 and 25-8-401 et seq., C.R.S. Unless otherwise provided, all requests for adjudicatory hearings under this section must be made in writing no later than thirty (30) days after the final decision of the Authority. 
72.6 	NONPOINT SOURCE AND INDIVIDUAL SEWAGE DISPOSAL SYSTEM NUTRIENT CONTROLS
During Phase 1 of the TMAL, theThe nonpoint source nutrient controls identified in sections 72.6(1)subsections 72.6.1 through 72.6(2)72.6.2 below shall be implemented. 
1. 	NONPOINT SOURCE BEST MANAGEMENT PRACTICES
(a) 	Local governments, individuals, corporations, partnerships, associations, agencies, or other entities with responsibility for activities or facilities that cause or could reasonably be expected to cause nonpoint source pollution of waters in the Cherry Creek Watershed shall adopt and implement best management practices/install BMPs and Pollutant Reduction Facilities (PRF) to the maximum extent practicable to reduce nutrient loadingconcentrations from such sources. 
(b) 	The choice of nonpoint source control measures shall be made by such local governments, individuals, corporations, partnerships, associations, agencies, or other entities, either individually or jointly.  Entities with responsibility for existing flood and drainage control facilities shall consider application of nonpoint source best management practicesBMPs for those facilities. 
(c) 	A prioritized list of future nonpoint source control projectsPRFs designed to permanently reduce phosphorus loadingconcentration, including a schedule for construction, shall be developed by the Authority and submitted to the Division on an annual basis.  These projectsPRFs will be compiled based upon the most effective and/or cost efficient projects in terms of removing phosphorus. The list of projectstheir ability to reduce phosphorus concentrations to the maximum extent practicable.  The list of PRFs and associated schedule may be updated as necessary when new information becomes available. 
(d) 	The Authority shall provide for the long-term operation and maintenance of Authority nonpoint source projects, and individual nonpoint source projectsPRFs shall be operated and maintained by projectPRF owners, with oversight from the Authority. 
(e) 	The Division shall collaborate with owners/operators of agricultural or silvicultural facilities in the Cherry Creek Watershed in pursuing incentive, grant, and cooperative programs to study and control nonpoint source pollution related to agricultural and silvicultural practices.  Pursuant to section 25-8-205(5), C.R.S., the Commission may consider adopting, in consultation with the commissioner of agriculture, control regulations specific to agricultural and silvicultural practices if the Commission determines that such programs are inadequate and that control regulations are necessary to attain water quality standards in the reservoir. 
(f) 	The Division shall collaborate with local governments in the Cherry Creek watershed to encourage connection of existing individual sewage disposal systemsISDS and new development to central wastewater facilities in an effort to reduce nutrient loadingconcentrations from individual sewage disposal systems. 
2. 	PUBLIC INFORMATION AND EDUCATION
(a) 	The Authority is identified by the DRCOG MetroVision 2020Denver Regional Council of Governments Metro Vision Clean Water Plan and by the Governor to implement specific control recommendations as the designated water quality management agency for the Cherry Creek watershed.  The Authority shall develop and implement a public information and education program in addition to the stormwater requirements in section 72.7(2)(a)(1). This program will focus on the abatement of known water quality impairments resulting from nonpoint source pollution, and the prevention of significant threats to water qualityprevention of pollution from sources that could be mobilized during storm events from present and future activities. as well as measure that could abate known nonpoint source pollution.  Areas for abatement include, but are not limited to, general agricultural and silvicultural practices, individual sewage disposal systems, large lot development (>1greater than one acre), and other potential nutrient sources. 
(b) 	The Authority shall consult with the Division and other interests in developing the program.  The program will be consistent with the voluntary, incentive-based approach and focus on the general public, work force, and local government sectors within the Cherry Creek watershed.  The program shall be implemented on an annual basis. 
3. 	NONPOINT SOURCE PHOSPHORUS ALLOCATION ADJUSTMENT
If voluntary controls on phosphorus contributions from nonpoint sources are not effective in reducing the phosphorus loadsconcentration in the inflow to the reservoir and attaining water quality standards after evaluating the progress of the Phase 1 TMAL, the Commission may adjust the phosphorus allocationsconcentration outlined in sectionssubsection 72.3 and 72.4 of this Regulation to further limit phosphorus loadingattain the chlorophyll a standard. 
4. 	LIMITATION ON CONSTRUCTION OF NEW INDIVIDUAL SEWAGE DISPOSAL SYSTEMS
Within the Cherry Creek Watershed in Arapahoe and Douglas counties, no new individual sewage disposal systemsISDS shall be constructed within the 100-year flood plain as designated by Urban Drainage and Flood Control District, or the Federal Emergency Management Agency if no Urban Drainage and Flood Control District designation exists.  This restriction shall not apply to the replacement of, or improvements to the operation of, existing ISDS systems located within the 100-year flood plain. 
5. 	ADDITIONAL PROHIBITIONS AND PRECAUTIONARY MEASURES
If voluntary controls on phosphorus contributions from nonpoint sources are not effective in reducing phosphorus loadsconcentration and attaining water quality standards, the Commission may consider the adoption of prohibitions or precautionary measures to further limit nutrient loadingconcentrations, including but not limited to, the following nutrient sources: 
(a) 	Individual sewage disposal systems;
(b) 	Sod farms; 
(c) 	Plant nursery facilities; 
(d) 	Chemical de-icers; 
(e) 	Commercial fertilizer retail facilities; 
(fe) 	Phosphate detergents; 
(gf) 	Golf courses; and 
(hg) 	Road and highway sand. 
6. 	FLOODPLAIN PRESERVATION AREAS AND CONSERVATION EASEMENTS
The Commission recognizes protection of floodplain, riparian corridor, and other environmentally sensitive lands through public acquisition or conservation easement and restoration of the same lands for nutrient control through erosion control, revegetation or other means, as nonpoint source nutrient controls.  The Authority and local governments may collaborate with other entities in pursuing easements, ownerships, and rights to protect the streams, riparian corridors, tributaries, and wetlands in the Cherry Creek watershed. 
72.7 	STORMWATER PERMIT REQUIREMENTS  
1. 	Definitions 
(a) 	"Owner," for the purposes of this section of the regulation only, means the owner or authorized representative of the facility or construction project. 
(b) 	"Permittee," for the purposes of this section of the regulation only, means the Municipal Separate Storm Sewer System or MS4 that has been issued a stormwater discharge permit by the Division. 
(c)	"Large lot single family development" for the purpose of this section of the regulation only, means a land disturbance greater than one acre on a single-family residential lot with an area greater than or equal to two and one-half acres in size and having a total site imperviousness, including, but not limited to roadways, building footprints, and driveways, less than ten percent gross density.
(d) 	"Rural road construction and maintenance" for the purpose of this section of the regulation only, means land disturbances greater than one acre for rural residential roads and rural collector roads that serve or are adjacent to large lot single family developments.  Rural Roads are typically characterized by having parallel ditches for conveyance of storm runoff, rather than curb and gutter.  Although urban roadways sometimes use roadside ditches for runoff conveyance, they are not classified as rural roads.  In the context of this regulation, the word road does not include temporary haul roads used for construction purposes.  Construction activities occurring within a Census Designated Urbanized Area are excluded from this definition.
(e)	"Tier 1 development and redevelopment" for the purpose of this section of the regulation only, means any land disturbance less than one acre that is developed independently of a larger common plan of development or sale, and which results in less than 500 square feet of imperviousness for new development or 500 square feet of increased imperviousness for redevelopment.
(f)	"Tier 2 development and redevelopment" for the purpose of this section of the regulation only, means any land disturbance less than one acre that is developed independently of a larger common plan of development or sale, and which results in more than 500 square feet but less than 5,000 square feet of imperviousness for new development, or more than 500 square feet and less than 5,000 square feet of increased imperviousness for redevelopment, including disturbances of existing impervious areas.   
(g)	"Tier 3 development and redevelopment" for the purpose of this section of the regulation only, means any land disturbance greater than one acre, or which results in more than 5,000 square feet of imperviousness for new development or 5,000 square feet of increased imperviousness for redevelopment, including disturbances of existing impervious areas.
(h) 	"Trails" for the purpose of this section of the regulation only, means permanent access areas constructed primarily for the purpose of recreation but also provide access for operations and maintenance.
2. 	The following requirements, at a minimum, shall be incorporated into any Stormwater Permit issued to a Municipal Separate Storm Sewer System (MS4) in the Cherry Creek watershed, in addition to the requirements included in Regulation No. 61.8(11).61 (5 CCR 1002-61).  Permittees may also incorporate requirements into their programs that are more restrictive than those outlined in this control regulation. 
At a minimum, the MS4 permit will require that the regulated MS4 develop, implement, and enforce a stormwater management program designed to reduce the discharge of pollutants from the MS4 to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the Colorado Water Quality Control Act (25-8-101 et seq., C.R.S.).  Implementation of BMPs consistent with the applicable MS4 requirements included in Regulation No. 61 (5 CCR 1002-61) and the requirements of section 72.7.2 belowthe subsection herein constitute compliance with the standard of reducing pollutants to the MEP. 
(a) 	Public education and outreach on stormwater impacts.  The permittee must implement a public education program that includes the following: 
(1) 	Distribution of educational materials or equivalent outreach focused on residential, industrial, agricultural, and/or commercial sources that are determined to have a significantthe potential to contribute significant nutrient  phosphorus and nitrogen loadsconcentrations to State waters at a rate that could result in or threaten to result in exceedance of the chlorophyll a standard in Cherry Creek Reservoir.  Examples of sources that may need to be addressed by the MS4's program include, chemical deicing, retailers with outdoor storage of fertilizers, concentrated agricultural activities such as turf farms and landscape plant facilities, and animal feeding operations. 
(b) 	Construction site stormwater runoff control. 
(1) 	Regulated Activities.  The permittee must develop, implement, and enforce a program to reduce pollutants in any stormwater runoff to the MS4 from construction activities that disturb land, including, but not limited to, the following: 
(i) 	Clearing, grading, or excavation of land; 
(ii) 	Construction, including expansion or alteration, of a residential, commercial or industrial site or development; and 
(iii) 	Construction of public improvements and facilities such as roads, transportation corridors, airports, and schools. 
(2) 	Individual Homes.  Individual Home Construction, including any Land Disturbance or Development for a single home, not including Land Disturbance for roads, road gutters or road improvements, that disturb less than one acre of land and where the Owner of the single home holds a permit for construction of only one dwelling within the subdivision, if any, containing the single home, must be required to meet the requirements of section 72.7.2(b)(5)(i)(D)(l), but doesis not have to be required to meet the other requirements in section 72.7(2)72.7.2(b) of this regulation. 
(3) 	Exclusions. 
(i) 	Automatic Exclusions.  The permittee may exclude the following activities from the requirements in section 72.7(2)72.7.2(b) of this regulation. 
(A) 	Agricultural Activities; 
(B) 	Emergency and routine repair and maintenance operations for all underground utilities; 
(C) 	Land Disturbances at residential or commercial subdivisions that already have adequate Construction BMPs and PermanentPost-construction BMPs installed and operating for the entire subdivision, approved in compliance with this regulation, and where the original owner who obtained approval retains legal authority; and 
(D) 	Routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of a facility. (Maintenance (maintenance operations performed by the permittee may still be covered under the Municipal Operations minimum control measure). 
(E)	Emergency operations related to flood, fire, or other force majeure.
(ii) 	Authorized Exclusions.  The permittee may exclude the following activities from the requirements in section 72.7(2)72.7.2(b) of this regulation, if authorized through a developed procedure for determination that water quality is adequately protected without imposing the requirements.  This procedure may either be on a site-specific basis, upon submission by the owner of a written request for exemption to the permittee, or, if the determination can be simplified to allow for determination by the owner, through certification by the owner to the permittee that the waiver criteria have been met. 
(A) 	Construction of a sidewalk or driveway; and 
(B) 	Underground utility construction including the installation and maintenance of all utilities under hard surfaced roads, streets, or sidewalks, provided such land disturbance activity is confined to the area which is hard surfaced and provided that stormwater runoff and erosion from soil and materials stockpiles are confined and will not enter the drainage system. 
(iii) 	Additional Exclusions.  The permittee may allow for additional automatic and/or authorized exclusions, with approval of the Division, when it can be reasonably shown that excluding the activity will not pose an increased threat to water quality, or that the cost of administering the program for a specific activity with low risk of stormwater pollution outweighs the benefits to water quality.  The Division reserves the right to not allow any additional exclusions. 
(4) 	Submittal requirements. 
(i) 	Construction BMP Plan.	An Erosion and Sediment Control Plan describing permittee-approved construction BMPs For Land Disturbance regulated by this program, a Construction BMP Plan must be submitted to and, following adequate review, approved by the permittee prior to the commencement of Land Disturbances.  
(5) 	Required Construction BMPs. 
(i) 	The following requirements for construction BMPs to be implemented prior to the commencement of Land Disturbances must be included in the permittee's program. 
(A) 	Phase Construction.  Owner shall schedule construction activities to minimize the total amount of soil exposed, including stockpiles, at any given time in order to reduce the period of accelerated soil erosion.  Areas of Land Disturbance equal to 40 acres or greater must not be exposed for more than 30 consecutive days without temporary or permanent stabilization. 
The Permittee may allow authorized exemptions to the 40-acre limit for removal and storage of cut material where geotechnical limitations restrict the use of temporary or permanent stabilization of the stored material (e.g. swelling soils, rock). 
The Permittee may allow authorized exemptions to the 40-acre limit when the Owner can demonstrate that the 40-acre limit is physically and/or financially impracticable.  For sites granted this exemption, a phasing and earthwork quantities plan shall be submitted to and, following adequate review, approved by the Permittee prior to the commencement of land disturbance activities.  Submittal requirements include: 
(I) 	Phasing Plan showing cut and fill volumes and locations for each Phase and project totals. 
(II) 	Earthwork Quantity Plan showing cut and fill volumes and locations for each phase and project totals, 
(III) 	Erosion Control Plan showing specific erosion and sediment controls for each phase. 
(B) 	Reduce Stormwater Runoff Flow to Non-Erosive Velocities when practicable using BMPs such as, but not limited to:  
Swales,
Roadside swales,
Slope diversion dikes, 
Terracing/Contouring, 
Slope drains, and/or 
Check dams. 
(C) 	Protect State Waters Located on Construction Sites from Erosion and Sediment Damages resulting from Land Disturbance, using BMPs such as, but not limited to: 
Waterway crossing protection, 
Outlet protection, 
Temporary diversions, and/or 
Bank stabilization. 
(D) 	Control Sediment before it Leaves a Construction Site. 
(I) 	All stormwater runoff from Disturbed Areas must be managed by at least one sediment entrapment BMP before the stormwater exits the site, such as, but not limited to: 
Silt fence, 
Filter strips. ,
Sediment basins, 
Straw bale barriers, and/or 
Inlet protection. 
(II) 	Vehicle Tracking.  Owners must prevent deposition of sediment off-site by controlling vehicle tracking onto paved surfaces, using BMPs such as, but not limited to: 
Grates, and/or
Vehicle tracking control pads. 
(ii) 	The following construction BMPs must be required within 14 days after the commencement of Land Disturbances. 
(A) 	Stabilize soils.  All Disturbed Areas that remain exposed and where construction activities are not taking place for longer than fourteen (14) days shall be stabilized to protect the soils from erosion, using BMPs such as, but not limited to: 
Mulching, 
Erosion control mats, blankets, and nets,
Seeding, 
Soil Binders, 
Cover crops, and/or 
Soil Roughening. 
(B) 	Re-vegetate Disturbed Areas.  Within 14 days after construction activity has temporarily or permanently ceased, owners must plant temporary and, where applicable, permanent vegetative cover on Disturbed Areas. 
(I) 	Temporary Revegetation.  Owners must provide temporary revegetation on all Disturbed Areas that will be exposed prior to completion of Land Disturbance activities.  When seeding is not practicable (e.g., growing season constraints) the permittee may allow for temporary stabilization until planting is practicable.    
(II) 	Permanent Revegetation.  Owners must provide permanent revegetation and/or stabilized landscaping on all Disturbed Areas that will be exposed for more than two years or for an indeterminate amount of time.  
(IIIC) 	Variances.  Schedules for requiring stabilization may be modified by the permittee to allow for special considerations such as stabilizing access areas and areas in close proximity to continuing construction.  Additionally, the permittee may allow for alternative approaches to stabilization if they can be shown to have erosion control capabilities similar to temporary or permanent revegetation. 
(iii) 	Inspection/Operation and Maintenance. 
(A) 	Inspection. 
(I) 	Frequency. Owners must inspect ConstructionThe owner must be held responsible for inspection of construction BMPs at the following times and intervals at a minimum: 
After installation of any Construction BMP; 
After any runoff event; and
At least every 14 days.
(II)	For sites where construction activities are completed but final stabilization has not been achieved due to a vegetative cover that has been planted but has not become established, the permittee may allow for the owner to reduce inspection frequency to once per month. 
(B) 	Operation and Maintenance.  The owner must be held responsible for operation and maintenance of BMPs, and must make any necessary repairs to BMPs immediately after a defect or other needed repair is discovered. 
(c) 	Post-construction stormwater management in new development and redevelopment. 
(1) 	Regulated Activities.  The permittee must develop, implement, and enforce a program that ensures that controls are in place that would prevent or minimize water quality impacts to the MS4 from completed projects requiring coverage under part 72.7(2)72.7.2(b)(1) of this regulation.  
(2) 	Provisions for specific BMPs or equivalent protection included in Section 72.7, that for the purpose of reducing nutrient loadingconcentrations to Cherry Creek Reservoir go beyond the requirements in the Colorado Discharge Permit Regulations No. 61 for post-construction BMPs, do not need to be required prior to discharge to a State water. As as long as BMPs are in place at the site of new development and/or redevelopment in compliance with Regulation No. 61,61 (5 CCR 1002-61) and a regional facilities can be usedfacility(ies) is(are) in place to control phosphorus loadsconcentrations to Cherry Creek Reservoir, that result in pollutant removal in compliance with parts 72.772.7.2(b)(6), 72.772.7.2(b)(7), and/or 72.772.7.2(b)(8) of this regulation. 
(3) 	Individual Homes.  Individual Home Construction, including development for a single home, not including for roads, road gutters or road improvements, that disturb less than one acre of land during construction and where the Owner of the single home holds a permit for construction of only one dwelling within the subdivision, if any, containing the single home is not required to meet the requirements in section 72.7(2)72.7.2(c) of this regulation. 
(4) 	Exclusions. 
(i) 	Automatic Exclusions.  The permittee may exclude the following activities from the requirements in Section 72.7(2)72.7.2(c) of this regulation: 
(A) 	Agricultural Activities; 
(B) 	Emergency and routine repair and maintenance operations for all underground utilities; 
(C) 	Land Disturbances at residential or commercial subdivisions that already have adequate Post Construction BMPs installed and operating for the entire subdivision, approved in compliance with this regulation, and with adequate capacity to treat any additional discharges; and  
(D) 	Routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of a facility. (Maintenance (maintenance operations performed by the permittee may still be covered under the Municipal Operations minimum control measure); 
(E)	Emergency operations related to flood, fire, or other force majeure that maintain the original line and grade, hydraulic capacity, or original purpose of the facility; and
(F)	Land disturbance to undeveloped land that will remain undeveloped following disturbance and will be reclaimed in accordance with subsection 72.7.2(b)(5)(ii)(B). 
(ii) 	Authorized Exclusions.  The permittee may exclude the following activities from the requirements in Section 72.7(2)72.7.2(c) of this regulation on a site-specific basis, upon submission by the owner of a written request for exemption to the permittee and following adequate review and determination by the permittee that a permit is not needed to insure adequate protection of water quality: 
(A) 	Residential subdivisions with a total disturbed area of less than one acre and are not part of a larger common plan of development; 
(BA) 	Construction of a sidewalk or driveway; and  
(CB) 	Underground utility construction, including the installation and maintenance of all utilities under hard surfaced roads, streets, or sidewalks, provided such land disturbance activity is confined to the area which is hard surfaced, and provided that stormwater runoff and erosion from soil and material stockpiles are confined and will not enter the drainage system;  
(C)	Rural road construction and maintenance, provided that the permittee requires post-construction BMPs specific to this activity;
(D)	Large Lot single family development, provided that permittee requires post-construction BMPs specific to this activity; and
(E)	Trails construction provided that permittee requires post-construction BMPs specific to this activity. 
(iii) 	Additional Exclusions.  The permittee may allow for additional automatic and/or authorized exclusions, with approval of the Division, when it can be reasonably shown that excluding the activity will not pose an increased threat to water quality, or that the cost of administering the program for a specific activity with low risk of stormwater pollution outweighs the benefits to water quality.  The Division reserves the right to not allow any additional exclusions. 
(5) 	Submittal requirements. 
(i)	Permanent Post-construction BMP Plan.  For projects regulated by this program, a PermanentPost-construction BMP Plan must be submitted to and, following adequate review, approved by the permittee prior to the commencement of Land Disturbances. The plan should include the descriptions, maps, etc. as specified by the permittee as needed to allow for an adequate review.  
(ii) 	Inspection and Maintenance.  The permanentPost-construction BMP planPlan must also contain, at a minimum, the following information to address long term operation and maintenance of permanentPost-construction BMPs: 
(A) 	Procedures for maintenance and inspection protocols to ensure continued effectiveness of BMPs, and commitments from responsible agency/Owner to maintain PermanentPost-construction BMPs. 
(B) 	Procedures for dedication by easements or other legal means for access at the PermanentPost-construction BMP sites for operation, maintenance, and inspection of PermanentPost-construction BMPs. 
(6)	PermanentPost-construction BMPs. 
(i) 	Permanent BMP Requirement -- Minimum Water Quality Capture Volume ("WQCV"). For all areas of Land DisturbanceFor all development and redevelopment, the permittee must require the installation and operation of Permanent BMPs that provide a WQCV designed to capture and treat, at a minimum, the 80th percentile runoff event from all of the areas of Land Disturbance., operation, and maintenance of Post-construction BMPs as follows:  
(A)	For all Tier 3 development and redevelopment, the permittee must require installation of post-construction BMPs that provide a WQCV designed to capture and treat, at a minimum, the 80th percentile runoff event. All BMPs must be designed in accordance with good engineering practices and the permittee may require additional design restrictions.
(B)	For all Tier 2 development and redevelopment, the permittee must require the installation, operation, and maintenance of Post-construction BMPs and/or hydrologic conditions at the site that meet one or more of the following criteria:  
(I)	The WQCV storm event is assumed not to leave the site, as demonstrated by suitable hydrologic analysis;
(II)	Runoff is discharged as sheet flow across a grass buffer area, designed in accordance with Urban Drainage Flood Control District Volume 3 requirements;
(III)	Runoff is discharged from the site through a grass swale in combination with implementation of Minimize Directly Connected Impervious Areas (MDCIA) practices;
(IV)	Runoff is discharged from the site through a constructed wetland channel;
(V)	Runoff is discharged across undisturbed and vegetated land a minimum distance of 50 feet or 3 times the distance criteria for grass buffers, which ever is greater, with a slope not exceeding 4 percent over that distance; 
(VI)	Allowed discharge of a storm event adequately protects water quality, as demonstrated by a hydrologic analysis accepted by permittee; or
(VII)	Alternative BMPs and/or site condition requirements may be used if they are shown to have comparable or better nutrient removal characteristics for the given use, in comparison to the above listed BMPs/site condition requirements, when properly designed and implemented.  These BMPs/ site condition requirements must be determined to be acceptable by the permittee on a case-by-case basis, or, if appropriate, may be added to the menu of acceptable BMPs.  
(C)	For all Tier 1 development and redevelopment, the permittee need not require installation of post-construction BMPs.
(ii) 	Approved BMPs.  One or more of the following BMPs shall be required to meet the WQCV.  All BMPs must be designed in accordance with good engineering practices; the permittee may provide additional design restrictions. 
(A) 	Constructed wetland channel, in conjunction with extended detention basin, retention pond, constructed wetlands basin, porous pavement detention, porous landscape detention, or sand filter extended detention watershed.   
(B) 	Grass swale in combination with porous pavement detention or porous landscape detention.   
(C) 	Constructed wetland channel preceded by modular block porous pavement.  
(D)	Minimize Directly Connected Impervious Areas (	MDCIA).  This combination BMP of MDCIA in conjunction with extended detention watershed retention pond, constructed wetlands basin, porous pavement detention, porous landscape detention, or sand filter extended detention basin.  At a minimum, for MDCIA, all impervious areas at the development must flow over grass buffer trips before reaching a stormwater conveyance system.  
(E) 	Extended-Detention Basins (Dry Ponds).  
(F) 	Retention Ponds (Wet Ponds).  
(G) 	Constructed Wetlands Basin.   
(H) 	Porous Pavement Detention.   
(I) 	Porous Landscape Detention.  
(J) 	Sand Filter Extended Detention Basin.  
Alternative BMPs may be used if they are shown to have comparable pollutantor better nutrient removal characteristics for the given use, in comparison to the above listed BMPs, when properly designed and implemented.  These BMPs must be determined to be acceptable by the permittee on a case-by-case basis, or, if appropriate, may be added to the menu of acceptable BMPs.  
(iii) 	WQCV Alternatives.  The permittee may allow alternative BMPs that do not use the WQCV approach or are in combination with the WQCV, if they are shown to have pollutantcomparable or better nutrient concentration reduction removal characteristics for the given use comparable to the above listed BMPs, when properly designed and, implemented., and maintained.  These BMPs must be determined to be acceptable by the permittee on a case-by-case basis, or, if appropriate, may be added to the menu of acceptable BMPs.  Specifically, the permittee may allow for the owner to use stream bank stabilization at the development site, and conservation of open space through clustering of development or setbacks from drainage ways, to reduce the need for the WQCV for the whole site.   
(iv) 	Operation and Maintenance.  The permittee must develop a program that requires owners to be responsible for operation and maintenance of BMPs and requires that they provide sufficient legal access, by dedicating easements for the sites of the permanent BMPs and access thereto for the Owner/agency responsible for operation and maintenance, the permittee, and for inspections, operation, and maintenance. 
(7) 	Additional BMP Requirements.  In addition to other requirements in this regulation for post-construction BMPs, the permittee must develop, implement, and enforce a program that ensures that permanent controls are in place at completed projects at the following:  those facilities requiring coverage under both part 72.7(2)(d72.7.2(c)(1) of this regulation and Regulation 61, section 61.3(2)(e)(iii), 5 CCR 1002-61; and from other designated commercial and industrial facilities as discussed below.  The program must address any stormwater pollutant sources at these facilities that may require unique management strategies.  The permittee shall: 
(i) 	Develop a program to designate commercial facilities on a case-by-case basis or by addition of a general commercial sector, based on a determination that they have a significant potential to contribute phosphorus and/or nitrogen loadsnutrient concentrations to State waters at a rate higher than typical for other commercial or industrial land uses (e.g., stores with outdoor fertilizer storage, facilities with deicing operations). 
(ii) 	The Permittee must require Owners to satisfy additional special permanentPost-construction BMP requirements designed to prevent or reduce the amount of pollutants generated and/or released from the area of Land Disturbance, such aswhich include but are not limited to: 
(A) 	Covering or enclosing activity in buildings or roofs; 
(B) 	Providing secondary containment area to collect leaks and spills of fuels, lubricants, and other chemicals; 
(C) 	Segregating or diverting stormwater runoff away from or around pollutant generating activity; and 
(D) 	Routing site drainage to recycling or otherwise preventing direct discharge of vehicle or equipment wash-water. 
(8) 	Stream Preservation Areas.  The following requirements provide special standards and procedures for Land Disturbances in Stream Preservation Areas, which include Cherry Creek Reservoir, all of Cherry Creek State Park, drainage and discharges to the park within 100 feet of the park boundary; lands overlying the Cherry Creek alluvium100-year floodplain; and all lands within the 100-year floodplain of Cherry Creek tributaries, as defined by the Urban Drainage and Flood Control District.   
(i) 	Additional BMP Requirements. For all Land Disturbances  For Tier 2 and Tier 3 New Development and Redevelopment in Stream Preservation Areas, including Land Disturbances at Industrial Facilitiesthe permittees must, in addition to meeting all the PermanentPost-construction BMP requirements in section 72.7.2(c)(56) and/or (67), permittees must require owners to implement one or more of the following BMPs that promote filtration, or infiltration where appropriate, to treat the WQCV for all runoff from the developed areas of Land Disturbance within the Stream Preservation Area.   Examples of such BMPs include, but are not limited to:  
(A) 	Porous Landscape Detention designed for a 24?hour drain time; 
(B) 	Constructed Wetland Watershed designed for a 24?hour drain time; or 
(C) 	One or more of the following additional BMPs in Combination with Extended Detention Basin, Porous Pavement Detention, Porous Landscape Detention, or Constructed Wetland Basin: 
(I) 	Grass Swales. All surface stormwater runoff from on-site impervious surfaces must be conveyed over grass swales before being discharged from the site; or 
(II) 	Constructed Wetland Channels. All surface stormwater runoff from on-site impervious surfaces must be conveyed through wetlands before being discharged from the site. 
(D) 	Alternative BMPs may be used if they are shown to have comparable phosphorus and nitrogen removal characteristics for the given use in comparison to the above listed BMPs when properly designed and implemented. These BMPs must be determined acceptable by the permittee on a case-by-case basis, or, if appropriate, may be added to the menu of acceptable BMPs. 
(A) 	constructed wetland basins;
(B)	sand filter basins;
(C)	porous landscape detention; and 
(D)	porous pavement detention.  
(ii)	Authorized Exclusions.  The permittee may exclude the following activities from the requirements in section 72.7.2(c)(8)(i) and disturbance is the result of implementation of an approved BMP, in accordance with requirements in section 72.7.2.(c), unless the post-construction BMP is required for new development.
Construction of roadway, highway, and underground utility crossings, provided construction BMPs are implemented as required in section 72.7.2(b) and post-construction BMPs are implemented as required in Section 72.7.2(c).
Rural road construction and maintenance, except for a land disturbance associated with a rural road within a Stream Preservation Area, and provided that permittee requires post-construction BMPs specific to this activity;
Those automatic and authorized exclusions defined in section 72.7.2(c)(4). 
72.8 	NUTRIENT MONITORING
1. 	Monitoring of wastewater facilities shall be consistent with the requirements of sections 72.4 and 72.5section 72.4.4 of this control regulation.  Wastewater facilities shall monitor nutrients concentrations including, but not limited to, nitrate, nitrite, ammonia, total phosphorus, total soluble phosphorus and orthophosphate. 
2. 	The Authority shall develop and implement, in conjunction with local governments, a routine annual water quality monitoring program of the Cherry Creek watershed and reservoir.Cherry Creek Reservoir.  The monitoring program shall include monitoring of the reservoir water quality and inflow volumes, alluvial water quality, and nonpoint source nutrient loads. flows.  Monitoring shall include, but not be limited to nitrate, nitrite, ammonia, total phosphorus, total soluble phosphorus, and orthophosphate concentrations.
(a) 	Routine monitoring of surface water, ground water, and the reservoir shall be implemented to determine the total annual transportflow-weighted concentration of nutrients to the reservoir. 
(b) 	Monitoring of nonpoint sourcesPRFs shall be implemented to determine nutrient loads and removal efficiencies of BMPs as required in the Trading Program, as well as to characterize the stormwater quality from various land uses in the Cherry Creek watershedinflow and outflow nutrient concentrations. 
3. 	The Authority shall consult with the Division in the development of the monitoring program to ensure that the monitoring plan includes the collection of data to evaluate nutrient sources and transport, to characterize reductions in nutrient load reductionconcentrations, and to determine attainment of water quality standards in Cherry Creek Reservoir. 
4. 	The Authority shall consult with the Division and other appropriate entities in developingdevelopment of any water quality investigative special studies in furtherance of the phasedConcentration-Based Control of Phosphorus TMAL approach contained within this control regulation. The Authority, in conjunction with the Division, shall develop a prioritized list of special studies that will improve understanding of the Cherry Creek watershed and reservoir nutrient dynamics.  
Special studies may include, but are not limited to, the following areas of investigation: 
(a) 	Feasibility study of nutrient removal from point sources; 
(b) 	QualificationQuantification of effectiveness of nonpoint source concentration-based phosphorus removalcontrol strategies called PRFs; and 
(c) 	Quantification of effectiveness of regulated stormwater concentration-based phosphorus control strategies called BMPsstructures; and 
(d) 	Quantification of the effectiveness of source control BMPs that include low-impact development techniques; and 
(e) 	Other studies as appropriate to support the phased Concentration-Based Control of Phosphorus TMAL. 
5. 	The monitoring data shall be used by the Authority to determine nutrientphosphorus fate and transport, calculate annual nutrient loadsflow-weighted phosphorus concentrations, document compliance with the applicable water quality standards, analyze long-term trends in water quality for both the reservoir and the Cherry Creek watershed, and calibrate water quality models for use in the next phase of the TMAL. 
6. 	The Authority shall maintain all data collected pursuant to this section in an electronic database for evaluation and transfer to the Division and other entities. 
72.9 	REPORTING
1. 	The Authority shall submit an annual report on the activities required under this regulation to the Commission and Division by March 31 of each year.  The report shall include the following categories and items: 
(a) 	Wastewater FacilityPoint Source Controls: monthly and annual loadsphosphorus concentrations; permit violations; approved site applications; and effectiveness in reducing nutrient loadscontributions. 
(b)	Nonpoint SourceRegulated Stormwater Controls:  Sediment and erosion control permit, inspection, and enforcement actions; Construction BMPs inspection and enforcement actions; Permanent BMPs construction, inspection, and maintenance actions; Flood control facilities retrofitting, inspection, and maintenance actions; Effectiveness in reducing nutrient loadsphosphorus concentration; Funding and monitoring of nonpoint source control projects; and Public information and education actions. 
(c)	Nonpoint Source Stormwater Controls.  Effectiveness in reducing phosphorus concentration; Funding and monitoring of PRFs.
(d) 	Riparian and Wetlands Protection:  Protection, enhancement, and restoration actions. 
(d) 	Wasteload Allocation: Temporary transfers, Reserve Pool allocations, and Semi-Urban Area transfers. 
(e) 	Trading Program: Point source and nonpoint source actions, including a report on the TMAL reduction resulting from the Trade Program. 2.Concentration-based phosphorus control measures:  The annual report shall provide data and information on water quality monitoring, point source andsources, regulated stormwater sources, nonpoint source loadingssources, status of compliance with discharge permit limits and conditions, recommendations on any new or proposed expansion of treatment facilities, and recommendations for improving water quality.  The format of annual reports and information within the reports shall provide comparability among previous years. 
32. 	The annual report shall include evidence of decisions and/or agreements for the financing of nonpoint source control projects, the implementation of the regulated stormwater permit requirements, and the adoption and implementation of best management practicesBMPs by local governments.  The annual report must demonstrate that reasonable further progress towards control of point and nonpoint sources of phosphorus is being madeimplementation of nonpoint source controls and regulated stormwater controls are reducing phosphorus concentrations into the reservoir to the maximum extent practicable. 
72.10 	COMMISSION REVIEW
1. 	The Division and the Authority shall report to the Commission at each triennial review of this regulation on the progress made to control sources of phosphorus loadsconcentration, and the characterization of nutrient loadsphosphorus sources in the Cherry Creek watershed.  The Commission shall review the performance of the Authority or local governments in implementing point source, nonpoint source, and regulated stormwater controls at each triennial review of this regulation. 
2. 	Recommendations may be made to the Commission at each triennial review as to the need for additional controls or practices to reduce sources ofreview the flow-weighted concentration-based approach for phosphorus loadingcontrol, for revised wastewater facility allocationseffluent limits based upon updated twenty 20-year population projections, and additional characterization of nutrient loadsphosphorus concentrations in the Cherry Creek watershed.  Nothing herein shall abrogate the discharge permit requirements for stormwater of section 61.3(2), 5 CCR 1002-61. , as outlined in Regulation 61 (5 CCR 1002-61).
3. 	After the appropriate scientific studies and water quality modeling are implemented during the Phase 1 TMAL, the Commission may adjust the phosphorus total maximum annual load allocations stated in section 72.3 of this regulation, alter water quality monitoring program requirements, and require a nonpoint source management program, if the appropriate controls are not implemented. 
4. 	During the Commission's regular reviews of this control regulation, allocations of phosphorus from the Reserve Pool, or authorized by Temporary Transfers or the Trading Program not already reflected in the listings in sections 72.3 and 72.4 shall be reviewed and, if appropriate, codified in such listings. 
72.11-72.14  	RESERVED 
. . . .

CHERRY CREEK BASIN WATER QUALITY AUTHORITY 
PROPOSED

72.27	STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE: MARCH 10, 2009 RULEMAKING; FINAL ACTION AUGUST 10, 2009; EFFECTIVE DATE JANUARY 1, 2010
The provisions of 25-8-202(1)(c), and (2) and 25-8-205, C.R.S. provide the specific statutory authority for adoption of these regulatory amendments.  The Commission also adopted, in compliance with 24-4-103(4) C.R.S., the following statement of basis and purpose.  
While many changes have occurred to the numbering of the regulation’s subsections, the basis and purpose statement provides information about the regulation’s major substantive changes.  This statement provides an analysis of the basis and purpose for changes to each of the major sections of the control regulation.
At the same time that these changes were adopted in Regulation 72, the Commission adopted consistent changes in Regulation 38, Classifications for Numeric Standards, for South Platte River Basin, Laramie River Basin, Republic River Basin, Smoky Hill River Basin (5 CCR 1002-38).  
BASIS AND PURPOSE   
Based on previous Rulemaking Hearings, the Commission established and maintained a phased phosphorus “Total Maximum Annual Load” (TMAL) of 14,270 pounds for the Cherry Creek Reservoir, with allocations of the TMAL divided among nonpoint point sources, background sources, wastewater facility sources, industrial process wastewater sources, and individual sewage disposal systems. 
Under the 2001 revisions, the Commission directed the Cherry Creek Basin Water Quality Authority (Authority) to proceed expeditiously in implementing both technology and information based controls necessary to meet the new water quality standards and protect the designated uses.  The Commission further noted that additional investigations would be necessary to support the calculation of a new TMAL, understanding that additional point source and nonpoint source control efforts would be necessary in the future.  To this end, the Authority and its member agencies completed 14 special studies, collected monitoring data, constructed and maintained Pollutant Reduction Facilities (PRFs), improved water quality in Cherry Creek State Park and surrounding sub-watersheds, and worked closely with interested parties in the watershed to control phosphorus in the Cherry Creek Basin (Basin).
Growth and the Watershed
Although the Cherry Creek Basin has experienced unprecedented growth during the past 20 years, the Authority and its partners have succeeded in maintaining the Reservoir’s water quality and beneficial uses.  The Commission acknowledges that the Authority, its member agencies, and partners have improved wastewater treatment and have upgraded associated technologies, installed nonpoint source controls, and utilized its land use agency responsibilities to control phosphorus in the watershed and inflow to the Reservoir.  The Commission also acknowledges that the Authority and its member agencies are committed to continuing watershed improvements, understanding that the watershed conditions are expected to improve with time and effort. The Commission expects current water quality management strategies to continue and, as necessary, become more aggressive over time to attain water quality objectives and protect the uses of the Reservoir.  
Watershed and Reservoir Modeling
To interpret the monitoring data received through the investigations completed to support the calculation of a new TMAL, the Authority commissioned two models:  a watershed model and reservoir model.  The Cherry Creek Basin Watershed Model is a dynamic water quality model that makes use of extensive water related data collected in the Cherry Creek watershed; whereas, the Cherry Creek Reservoir Model is an annual steady state mass-balance model that uses the phosphorus loads and total volume inflows to the reservoir to predict a chlorophyll a concentration.  The Commission acknowledges that the Authority’s studies indicate that the total inflow phosphorus concentration is the strongest predictor variable for evaluating in-lake chlorophyll a.  The Commission further acknowledges that current US EPA guidance allows for  water quality based effluent limits to be based on either a dynamic or steady state model.  The Authority relied upon both types of models to predict an appropriate numeric value for a chlorophyll a standard.  
Concentration-Based Approach to Total Phosphorus Control
In the 2001 Rulemaking Hearing, the Commission adopted a phased approach to TMAL development.  During the first phase of the TMAL development, the Commission adopted requirements intended to control point and nonpoint source loading to protect the Reservoir and identified the need for special studies to fill gaps in the watershed data record.  Fourteen special studies were developed to provide critical information on reservoir water quality issues, performance of existing control strategies, and new control requirements to support the calculation of a new TMAL at subsequent triennial review and rulemaking hearings.  
During the in-depth analysis of the studies conducted over the past seven years, data collection specifically focused on a mass loading of total phosphorus to the Reservoir in an effort to control the chlorophyll a concentration. Using that collected data, the Authority developed watershed and reservoir models to aid in the prediction of the effects of inflow water quality to the Reservoir under a variety of conditions.  The reservoir and watershed modeling results show a correlation between total phosphorus concentration in the inflow and in-lake chlorophyll a concentration.  The results of the data, studies, and modeling are now the basis for establishing new control requirements that focus on identifying source control efforts necessary to attain the chlorophyll a standard.  
The Commission finds that the studies, data, and modeling results support a concentration-based approach to phosphorus control (to be adopted as a concentration-based TMAL) in the Basin by quantifying and controlling the concentration of total phosphorus in the Reservoir inflow rather than the total pounds of phosphorus load.  The Commission expects the Division and the Authority to work together to develop and maintain an appropriate monitoring program to support water quality in the Reservoir.
Project Completion Results in Removal of Phase I TMAL Requirements
The Commission recognizes that the designated projects conducted to support Phase I of the TMAL program have been completed and therefore struck those requirements from the regulation.
Drinking Water Treatment Plant Effluent Limit Modification
The Commission acknowledges that water removed from the Cherry Creek or tributary alluvium for drinking water supply has an associated phosphorus concentration.  Because of this associated phosphorus concentration, it is appropriate to set a phosphorus concentration limit for any effluent discharged in connection with drinking water treatment equal to that of the source water.  Thus, the Commission established a discharge effluent limit of 0.2 mg/l for drinking water treatment facilities in the Basin. 
Stormwater Permit Requirements
The Commission’s 2001 revisions to the stormwater permitting requirements in section 72.7.2(c)(6)(i) required installation and operation of Best Management Practices (BMPs) that provide water quality capture volume (WQCV) for “all areas of land disturbance.”  The Commission acknowledges that over the past eight years, the practical outcome of this revision required that detention ponds, normally designed to reduce developed runoff peak flows to pre-developed levels, also include additional volume and outlet controls that would capture and detain normal runoff for up to 40 hours to reduce sediment and nutrient load discharges from the detention ponds.  
The Authority and the permittees conducted a risk analysis, which provides the Commission with the information necessary to conclude that a 5,000 square foot limit for impervious areas does not appear to have a significant impact on water quality, and that it is appropriate to establish a lower limit for requiring BMPs that are based on WQCV.  The Commission concludes, based on the results of the risk analysis, that a lower limit of 500 square feet is reasonable for requiring any post-construction BMP.  The 500 square foot limit allows for the construction of a patio, extension of a driveway, or sidewalk without placing any unreasonable additional burdens on the redevelopment site.  Accordingly, the Commission established a three-tiered system for development and redevelopment based on the amount of impervious areas for all land disturbances less than one acre, not just for those that are part of a common plan of development or sale, as required by Regulation 61 (5 CCR 1002-61).
72.2	DEFINITIONS
The following changes or additions were made to terms of general applicability.  The definitions “Concentration,” and  “Concentration Based Control of Phosphorus,” “Enhanced BMP,” “Flow Weighted Concentration,” and “Pollutant Reduction Facility” were included to explain the use of those terms in Section 72.3 concerning the Authority’s approach to control phosphorus in the watershed and ultimately in Cherry Creek Reservoir. The definitions of “Phosphorus Bank,” “Reserve Pool,” “Trading Ratio,” ”Trading Program,” and “Wasteload Allocation” were stricken from the regulation, since a concentration-based approach to phosphorus control is not based on mass of phosphorus removed.  Additionally, definitions and terminology have been modified to consistently reflect the move from a load-based to a concentration-based approach to phosphorus control.  
72.3	CONCENTRATION-BASED PHOSPHORUS CONTROL TMAL
The Commission revised this section to implement the concentration-based approach to phosphorus control adopted for the Cherry Creek watershed.  Watershed and reservoir modeling results have shown that, although population growth and surface flows have increased in the Basin, the total phosphorus concentration in the inflow to the Reservoir has remained relatively constant. These results provide a basis for the Commission to conclude that point and nonpoint source controls for total phosphorus (point source treatment facilities, PRFs, 208 agency processes, and permitted MS4 activities) are successfully reducing or removing total phosphorus concentrations in stormwater and surface water flows to the Reservoir.  
The watershed model, which uses eight years of water quality data collected in the Basin, predicted that although the mass (pounds) of phosphorus entering the Reservoir has varied considerably over time, the concentration at which it is entering via the inflow remained relatively constant.  The reservoir model indicated a significant correlation between the flow-weighted inflow total phosphorus concentration and chlorophyll a concentration in the Reservoir.  
The Commission reviewed the data and information supplied by the Authority and recognizes the biological significance of the correlation between the total phosphorus concentration in the inflow to the Reservoir and the Reservoir’s chlorophyll a concentration.  This relationship is significantly stronger than the annual loading of total phosphorus and chlorophyll a concentration for the Reservoir.  As a result, this section was revised to transition from a load-based to concentration-based control TMAL.
A margin of safety in the external phosphorus concentration is included in the proposed phosphorus goal. The phosphorus margin of safety is demonstrated by the watershed model results, which evaluated future development, post-construction BMPs, and the Rueter-Hess Reservoir.  This results in a phosphorus margin of safety of approximately thirteen percent.  In addition, use of a long-term median flow-weighted phosphorus concentration for achievement of an in-lake standard provides another margin of safety.  
This Section also includes additional language to clarify that concentration-based source control projects address both nonpoint source projects and regulated stormwater projects.  Finally, definitions and terminology have been modified to consistently reflect the move from a load-based to a concentration-based approach to phosphorus control.  
72.4	WASTEWATER FACILITY EFFLUENT LIMITATIONS
The 2004 version of this section of the regulation included language that provided flexibility for wastewater treatment facility dischargers in the Basin to determine return flow factors for land application sites.  The Commission has revised this section to be consistent with the current Reclaimed Water Control Regulation, Regulation #84 (5 CCR 1002-84).
The current section requires wastewater treatment facilities and industrial sources to meet a phosphorus effluent discharge limit of 0.05 mg/l.  This discharge limit is not being changed.  However, as previously stated, the Commission concluded that it was appropriate to set a phosphorus concentration limit for any effluent discharged in connection with drinking water treatment equal to that of the source water.  Therefore, this section was revised to include a phosphorus concentration limit of 0.2 mg/l for any effluent discharged in connection with drinking water treatment.
The chlorophyll a standard is applied on a seasonal basis and phosphorus concentrations in the Cherry Creek alluvium have shown little variability.  Therefore, consistent with the approach used to translate other water quality standards into effluent limits, the Commission revised this section to authorize the Division, at the request of permittees, to allow up to a 90-day averaging period for this limit in individual CDPS permits.  This provides flexibility to those dischargers that wish to request a longer averaging period.  
The Division supports a concentration-based phosphorus TMAL, and the Commission revised this section to recognize that wasteload allocations are not appropriate for a concentration-based approach to phosphorus control in the Cherry Creek watershed for the control of chlorophyll a in the Reservoir.  Language in this section, and throughout Regulation 72, has been changed to clarify that phosphorus control is concentration-based; therefore, discharge concentrations are applicable.  
In this section 72.4, the references to the phased TMAL, the Trading Program, and mass-based control of phosphorus have been stricken and replaced with the concentration-based approach to phosphorus control, to be consistent with revised Section 72.3.  Additionally, definitions and terminology have been modified to consistently reflect the move from a load-based to a concentration-based approach to phosphorus control.   
72.5	POINT SOURCE EFFLUENT LIMITATION MODIFICATIONS (RESERVED)
Because section 72.3 now implements a concentration-based approach to phosphorus control in the Cherry Creek watershed, the Commission finds that the current trading program is no longer applicable as written.  Accordingly, the Commission has stricken the language in this section, but leaves the section as a placeholder for future consideration.  
72.6	NONPOINT SOURCE AND INDIVIDUAL SEWAGE DISPOSAL SYSTEM NUTRIENT CONTROLS
In this section, the references to the Trading Program and mass-based control of phosphorus have been stricken and replaced with the concentration-based approach to phosphorus control to be consistent with revised Section 72.3.  Finally, definitions and terminology have been modified to consistently reflect the move from a load-based to a concentration-based approach to phosphorus control.  
72.7	STORMWATER PERMIT REQUIREMENTS
Several new definitions were included to correspond with the recent revisions to Regulation 61 (5 CCR 1002-61).  These definitions are intended to clarify the distinction in the application of PRFs and BMPs for various categories of sources.  References to load were replaced with concentration.  Titles have been added to several subsections in the regulation for references to other subsections for clarification. In some cases, the Commission finds that modifications and subsection reformatting efforts were warranted to provide further clarification.  These efforts do not result in any substantive change to the subsections.  
The remaining substantive revisions to the stormwater permit requirements revolve around the post-construction development and redevelopment requirements outlined in Regulation 61 (5 CCR 1002-61) and stream preservation area considerations.  For post-construction development and redevelopment, the Commission adopts a three-tiered approach to stormwater management BMPs to coincide with the requirements found in Regulation 61 (5 CCR 1002-61), while specifically addressing concerns within the Basin.  In this vein, the Commission also replaces the previous reference to permanent BMPs found in section 72.7.2(b) with post-construction BMPs and replaces the reference to construction BMPs with erosion and sediment controls.  The Commission also excluded certain limited activities identified as insignificant contributors to water quality degradation from regulation under this section.  
With regard to stream preservation areas, the Authority finds that the 100-year floodplain is a reasonable and more easily administrable substitution for alluvium, since a floodplain is more precisely defined.  Accordingly, the Commission incorporated language to clarify the Cherry Creek alluvium as being defined by the identified 100-year floodplain of Cherry Creek.
Over the last eight years, the Authority and permittees determined that there were certain types of land disturbances that would not result in water quality degradation and that greater flexibility in BMP selection or requirements was needed to preserve the integrity of the stream preservation area.  Thus, the Commission identified specific activities where a land disturbance in a stream preservation area would not be detrimental to water quality, such as construction of a BMP in accordance with this regulation.  
72.8	NUTRIENT MONITORING
The Commission finds it necessary for the Authority to continue to monitor and maintain all nonpoint source runoff PRFs for total phosphorus concentration controls, as well as identify opportunities to control phosphorus in the watershed to reduce total phosphorus concentrations in the Reservoir inflow.  Individual monitoring of BMPs need not occur because PRF monitoring upstream and downstream of the project effectively measure the accumulative benefits of BMP implementation in the upstream watershed.  
In this section, the references to the Trading Program and mass-based control of phosphorus have been stricken and replaced with the concentration-based approach to phosphorus control to be consistent with revised Section 72.3.  Finally, definitions and terminology have been modified to consistently reflect the move from a load-based to a concentration-based approach to phosphorus control.  
72.9	REPORTING
In this section, the references to the Trading Program and mass-based control of phosphorus have been stricken and replaced with the concentration-based approach to phosphorus control to be consistent with revised Section 72.3.  Additionally, definitions and terminology have been modified to consistently reflect the move from a load-based to a concentration-based approach to phosphorus control.  
72.10	COMMISSION REVIEW
In this section, the references to the Trading Program and mass-based control of phosphorus have been stricken and replaced with the concentration-based approach to phosphorus control to be consistent with revised Section 72.3.  Additionally, definitions and terminology have been modified to consistently reflect the move from a load-based to a concentration-based approach to phosphorus control.
This records the Commission’s intent as to how the Division and stakeholders should proceed.  
EXHIBIT 3
PARKER WATER AND SANITATION DISTRICT

DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
Water Quality Control Commission
CHERRY CREEK RESERVOIR CONTROL REGULATION
5 ccr 1002-72
. . . . 
72.4	WASTEWATER FACILITY WASTELOAD ALLOCATIONS AND EFFLUENT LIMITATIONSPOINT SOURCE – PHOSPHORUS CONCENTRATION LIMITS
1.	For discharges within the Cherry Creek Watershed or to the Cherry Creek Watershed, tThe Division shall not issue discharge permits (pursuant to Regulation 61) or notices of authorizations for use of reclaimed water (pursuant to Regulation 84) to any wastewater facilities and industrial process wastewaterpoint source discharges, including new point sources, that allow effluent limitations exceeding their the 0.10 mg/l total phosphorus allocation, unless such exceedances consist solely of phosphorus pounds awarded from the Reserve Pool, Semi Urban areas, or that are authorized through the Trading Program or by Temporary Transfers.  However, concentration, except as provided in no event shall these allocations be construed to allow discharges in violation of the requirements of section 72.4, subject to approved trades pursuant to Section 72.5(3)subsection 2 below.
2.	The annual point source allocation of phosphorus in the Cherry Creek Watershed is allocated among the wastewater facilities, industrial process wastewater sources, and developing areas as follows:

FACILITY		LBS./YR2 	
ACWWA/Cottonwood Water and Sanitation District3		  402	
Denver Southeast Suburban Water and Sanitation District		  304	
Inverness Water and Sanitation District		  129	
Meridian Metropolitan District 		  113	
Parker Water and Sanitation District 		  533	
Stonegate Center Metropolitan District 		  161	
Plum Creek Wastewater Authority4		   25	
City of Aurora4		   10	
Semi-urban Areas		  201	
Industrial Process Wastewater Sources		   50	
	Subtotal	1,928	
	Reserve Pool 	   216	
	Phosphorus Bank	   -0-	
	Total	2,144	
2  The above wasteload allocations for the listed wastewater facilities are not deemed to be the grant of a property right for any number of phosphorus pounds, and such allocations may be changed by the Commission upon good cause shown during regular reviews of this regulation.
3  The Cottonwood Water and Sanitation District (Cottonwood) and Arapahoe County Water and Wastewater Authority (ACWWA) have entered into an intergovernmental agreement under which the Cottonwood wastewater flows are treated at the ACWWA wastewater treatment facility.  The previous Arapahoe Water and Sanitation District and Cottonwood wastewater service areas were consolidated into a single ACWWA wastewater service area in the Clean Water Plan.
4  The allocations to Plum Creek Wastewater Authority and City of Aurora are not for direct discharge; these facilities limit the use of their allocations to Land Applications within the Cherry Creek Watershed.
2.	No direct discharger within the Cherry Creek watershed shall discharge an effluent with a total concentration greater than 0.10 mg/l total phosphorus as a 30-day average or such longer period up to 90 days, as provided in an individual permit.  No land application with a return flow factor established in accordance with section 72.4.5(a) or (b) shall discharge a 30-day (or such longer period up to 90 days, as provided in an individual permit) flow-weighted average phosphorus concentration at any site that is greater than 0.10 mg/l total phosphorus divided by the land application return flow factor.
Where land application is relying on lysimeters to determine the amount of water returned to ground water in accordance with section 72.4.5(c), the effluent concentration prior to being applied to the land shall not exceed 2.0 mg/l total phosphorus.
3.	Every wastewater facility and industrial process wastewater source must obtain a sufficient phosphorus wasteload allocation prior to commencing discharges or notices of authorization for use of reclaimed water into the Cherry Creek watershed.  Expanded or new wasteload allocations shall be taken from the Reserve Pool or from phosphorus pounds authorized by the Trading Program, Temporary Transfers, or from the Semi-urban Areas category.  Wasteload allocations for direct discharges must be sufficient for the annual loading resulting from a discharge at the design hydraulic capacity and a discharge concentration of 0.05 mg/l total phosphorus or less.  Wasteload allocations for land application must be sufficient for the annual loading using the product of the design flow and the land application return flow factor and the discharge concentration (pursuant to paragraph 4 below).    For land application sites using lysimeters, concentrations to determine annual loading will be measured directly in the lysimeters pursuant to 72.4(5)(c).
4.	Notwithstanding the wasteload allocations specified in section 72.4(2), by no later than August 1, 2004, no direct discharger within the Cherry Creek watershed shall discharge an effluent with a total phosphorus concentration greater than 0.05 mg/l total phosphorus as a 30-day average.  By no later than August 1, 2004, no land application with a return flow factor established in accordance with section 72.4.5. (a) or (b) shall discharge a 30-day flow-weighted average phosphorus concentration at any site that is greater than 0.05 mg/l total phosphorus divided by the land application return flow factor.  Where land application is relying on lysimeters to determine the amount of water returned to ground water in accordance with section 72.4.5. (c), the effluent concentration prior to being applied to the land shall not exceed 1.0 mg/l total phosphorus.
5.	For purposes of this regulation, return flow factors for land application sites shall be determined as follows:
(a)	For land application sites with decreed augmentation plans, the return flow factor shall be determined from the applicable augmentation plan.
(b)	For land application sites with available studies of return flow factors, but no approved augmentation plan, the return flow factor may be determined upon Division approval from the study results.
(c)	Where no approved augmentation plan or available study exists, or where the Division has not approved the use of an available study, lysimeters shall be installed in accordance with a plan approved by the Division and readings from such lysimeters will be used to determine the monthly volume discharged at each land application site.
. . . .

PARKER WATER AND SANITATION DISTRICT
PROPOSED
72.27	STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE: MARCH 10, 2009 RULEMAKING; FINAL ACTION AUGUST 10, 2009; EFFECTIVE DATE JANUARY 1, 2010
The provisions of 25-8-202(1)(c), and (2) and 25-8-205, C.R.S. provide the specific statutory authority for adoption of these regulatory amendments.  The Commission also adopted, in compliance with 24-4-103(4) C.R.S., the following statement of basis and purpose.  
While many changes have occurred to the numbering of the regulation’s subsections, the basis and purpose statement provides information about the regulation’s major substantive changes.  The following provides an analysis of the basis and purpose for changes to each of the major sections of the control regulation.
BASIS AND PURPOSE   
72.4	POINT SOURCE DISCHARGERS – EFFLUENT LIMITATIONS
The Water Quality Control Commission modified the phosphorus effluent limit for point source dischargers from 0.05 mg/l to 0.1 mg/l.  The 0.05 mg/l Total Phosphorus effluent limit was based upon the erroneous assumption that (1) all discharges reached Cherry Creek Reservoir, and (2) reducing the concentration of discharges to 0.05 mg/l would cause measurable improvement in Reservoir water quality.  Additional monitoring, modeling and studies demonstrate the basis upon which 0.05 mg/l was adopted are not scientifically supported.  Moreover, substantially more chemical additions are required to precipitate total phosphorus to achieve 0.05 mg/l instead of 0.1 mg/l.  The additions of the chemicals, some elements of which are discharged, has increased the levels of certain constitutions in the waters such as sulfates.  Not only is the 0.05 mg/l total phosphorus limit not improving Reservoir water quality, and causing environmental impacts, it is a significant costly undertaking which is borne by all wastewater treatment service rate payers.
The Colorado Water Control Act requires that water quality standards must have a reasonable relationship to the economic public health costs and impacts of such measures.  C.R.S. 25-8-102(5). 
For the reasons set forth above and for the following reasons, the Commission has adopted a point source discharge limit of 0.1 mg/l total phosphorus:
The Commission also considered the requirements for control regulations: “the extent to which the discharge to be controlled is significant” and “the practicality, and technical and economic feasibility of treatment techniques.”  C.R.S. 25-8-205(2)(C).
1.	The Cherry Creek Watershed Model (Authority 2008) shows no significant difference to total phosphorus concentration in the Cherry Creek inflows to the Reservoir when Wastewater Treatment Facility effluent discharge levels were at 0.1 mg/l rather than 0.05 mg/l; and
2.	The Cherry Creek Reservoir Model (Nurnberg 2008) shows no significant difference in Reservoir chlorophyll levels when Wastewater Treatment Facility discharge levels were 0.1 mg/l rather than 0.05 mg/l.  
3.	The Cherry Creek basin watershed monitoring program, which has been in place since 1994 and was, in part, the basis for the Cherry Creek Watershed Model, also shows no significant difference in measured total phosphorus concentrations upstream and downstream of the point dischargers, either in the surface water or in the alluvial ground water.
Therefore, there is no significant difference in discharge levels between 0.05 mg/l and 0.1 mg/l TP to be controlled.
4.	The background concentration of phosphorus in the watershed is 0.18 mg/l so setting effluent limits at 0.05 mg/l would be almost four times lower than background phosphorus concentrations in the watershed.  Data collected upstream and downstream of 0.05 mg/l phosphorus discharges shows in-stream phosphorus concentrations are at 0.18 mg/l or greater.
Relative to background the discharge to be controlled is not significant.
5.	Sulfate compounds which are necessary to precipitate phosphorus from the effluent have caused increases of sulfate concentration in the stream and alluvial waters, which have increased from 12 to 144.  Sulfate is a drinking water standard, so maintaining low sulfate levels is important to assure the continued suitability of the water, as there are thousands of municipal users of this water downstream of Cherry Creek Reservoir.  Sulfate concentration in drinking water supplies would be reduced if discharges were 0.1 mg/l TP rather than 0.05 mg/l TP.
Increasing effluent limits from .05 mg/l to 0.1 mg/l will reduce the public health impacts from sulfate residuals in the water supply.  This is consistent with C.R.S. 25-8-102(5).
6.	Costs for chemicals have nearly doubled in the last year and changing the effluent limit to 0.1 mg/l would reduce chemical usage by approximately 1/3 resulting in cost savings;
7.	Reducing the chemical usage will have a corresponding reduction in the number of chemical deliveries annually within the watershed, reducing energy consumption and vehicle (diesel) emissions; and
8.	The financial burden incurred by basin ratepayers in connection with the 0.05 mg/l is significant.  Modifying the standard to 0.10 mg/l reduces the financial burden while preserving and protecting the Cherry Creek Reservoir resources and current uses.
Therefore, according to findings 6, 7 and 8 above, a 0.05 mg/l TP effluent limit is not economically reasonable, especially considering that such measures yield no significant water quality improvements.