TABLE OF CONTENTSTABLE OF CONTENTSNUTRIENT REGULATIONS 1 CALENDAR OF EVENTS 2 PRO BONO AWARDS 3

CDPS SITE PERMITS 4 PRESIDENT’S PAGE 5 LAWYERS ANNOUNCEMENTS 6 PRO BONO PAGE 9 FIND A LAWYER RENEWALS 12 ANNUAL DINNER 13 CLASSIFIED ADS 15

BOULDER COUNTY BAR NEWSLETTER

M A Y 2 0 1 2

In March the Colorado Water QualityControl Commission (“WQCC”) tooka major step toward adopting a newsuite of regulations to control nutrientpollution in water. 1 These regulationspromise to have significant effects onwastewater, drinking water, stormwa-ter, agriculture, and construction.They include effluent limits thatimpact “point sources” like waste-water treatment plants, which requiredischarge permits under the FederalClean Water Act (“CWA”). Significantnutrient pollution also comes from“non-point sources” that do not havemandatory controls under the CWA,including agricultural runoff, septicsystems, and construction and recre-ation that releases sediment into thewater. Although there is relatively lit-tle current regulation of non-pointsources, State law authorizes non-point source regulation and the nutri-ents regulations are a first step towardaddressing them.

Phosphorus and Nitrogen stimulateplant and algae growth, which mayharm aquatic life by causing effects

NUTRIENT REGULATIONS WILL CHALLENGE THE STATE,MUNICIPALITIES, INDUSTRY, AND AGRICULTURE.

BY GABE RACZlike habitat degradation and dis-solved oxygen depletion. Nutrient-stimulated algae growth can alsoform carcinogenic chemicals whenwater is disinfected for drinkingwater use. The EnvironmentalProtection Agency has recommend-ed that states prioritize watershedsfor short-term Nitrogen andPhosphorus load reductions whilemaking significant progress towarddevelopment of numeric nutrientcriteria.2 However, the complexscience linking nutrients to theseeffects and the expense of nutrienttreatment resulted in few statesadopting statewide nutrient crite-ria.3 These difficulties promptedthe Colorado General Assembly toconsider a bill, HB 12-1161, whichwould require legislative approvalof the nutrient regulations.

Phased Approach to NutrientControlWQCC adopted a phased approachto nutrient control due to concernsabout the cost and feasibility ofachieving water quality standards.

The regulations include stringent new“interim values” for Phosphorus,Nitrogen, and Chlorophyll-a in theBasic Standards and Methodologies forSurface Waters (Reg. 31). WQCC alsoadopted a new Nutrients ManagementControl Regulation (Reg. 85) thatincludes technology-based Phosphorusand Nitrogen effluent limits applicableto a majority of the permitted dischargeflow in the state.

In the initial phase, the effluent limitswill apply to large domestic and indus-trial discharges in high priority water-sheds (primarily the urbanized portionsof the South Platte and Arkansas basins,and the Colorado River basin).Dischargers and municipal stormwaterutilities will also embark on a compre-hensive nutrient monitoring and dataassessment program. Non-pointsources including agriculture areencouraged to implement voluntarycontrols, and dischargers can imple-ment pollutant trades. Until 2022, theinterim values will be considered for

(continued on page 14)

MAY 20122

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Noon in the Boulder County JusticeCenter Jury Assembly Room

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Tuesday, May 8Employment Law

Recent DOL Updates and Court CasesFMLA Lessons Learned: Things I

Wish Supervisors KnewPresenter: Megan Holstein

Noon at Caplan and Earnest1 CLE $20, $10 new/young lawyers

Lunch $10

Wednesday, May 9Solo/Small Firm

Happy Hour 5 PMThe Rib House

Thursday, May 10Intellectual Property

IP ValuationPresenter: Patrick McFarlen

Noon at Hutchinson Black and Cook1 CLE $20, $10 new/young lawyers

Lunch $10

Friday, May 11Availability of Legal Services

Noon brownbag at Boulder CountyLegal Services in Louisville

Tuesday, May 15Business Law

Tax Aspects of Entity Formation and Operations

Presenter: Jeff CohenNoon at Hutchinson Black and Cook

1 CLE $20, $10 new/young lawyersLunch $10

Tuesday, May 15Annual Medical-Legal

Legislative UpdateBoulder Country Club, 7350 Clubhouse Road

6 PM cash bar, 6:30 dinner, 7 PM discussion with legislators,

$40 for dinner and 1 CLE

Tuesday, May 16Alternative Dispute Resolution

Mediation Without BoardersPresenter: Prof. Anna Spain, CU law

Noon brownbag Jury Assembly Roomat the Boulder Justice Center

1 CLE $20, $10 new/young lawyers

Thursday, May 17Bankruptcy RoundtableLunch Noon at Agave

Thursday, May 17Young Lawyer Happy Hour

To Honor Recent Law School Grads5:30 PM at The Attic, 949 Walnut

Thursday, May 24Paralegals and Civil Litigation

Paralegalling in Med. Malpractice &Personal Injury Matters

Presenter: Karen Reed Wasson ofRobert Hunter & AssociatesNoon at Caplan and Earnest

1 CLE $20, $10 new/young lawyersLunch $10

Wednesday, May 30Elder Law

When You Really Need a New Will,Don’t Let Lack of Testamentary

Capacity Stand in the WayPresenters: Renee Ezer & Spencer Crona

Noon at Caplan and Earnest1 CLE $20, $10 new/young lawyers

Lunch $10

CALENDAR OF EVENTSPre-registration is required for all BCBA CLE programs. Register by e-mailing lynne@boulder-bar.org, or

pay online with a credit card at www.boulder-bar.org/calendar.

MAY 2012 3

ANNUAL PRO BONO AWARDS LUNCH

100 % Firm Pro Bono RecognitionL – R: John Tweedy (Robinson Tweedy),Laura Moore(Warren Carlson & Moore),Kim Gent (Ebner & Gent), Jordan Dorrestein, Don Goulart ( Goulart & Associates),Justice Gregory Hobbs,(presenting), Ron Jung (Jung & Associates), Right back row: Rick Romeo (Vincent Romeo & Rodriguez), Leonard Tanis (Cooper

Tanis & Cohen, Chris Bosch (Robinson Tweedy), Right, front row: Christina Ebner (Ebner & Gent), Helen Stone (Stone & Rosen), Connie Eyster (Hutchinson Black & Cook.

200 Pro Bono Hours and AboveL – R: Bruce Wiener, Chris Jeffers, Hon. Thomas Mulvahill, (presenting),Brandy Rothman, Norton Steuben.

Ellen Cadette presents the Ron PorterPro Bono Award to Mary Street.

100 – 200 Pro Bono Hour AwardsL – R: Craig Small, Emma Pinter, Meg Quiat, Susan Bryant, Hon. PatrickButler, (presenting)

CONGRATULATIONSAND THANK YOU

FOR YOUR OUTSTANDING CONTRIBUTIONS

MAY 20124

RECENT DEVELOPMENTS IN CDPS INDUSTRIAL AND CONSTRUCTION SITE PERMITS

BY GREGORY TANThe federal Clean Water Actrequires construction sites and awide array of industrial facilities toobtain a permit for their dischargesof stormwater to surface waters.While the United StatesEnvironmental Protection Agency(“EPA”) administers a federal per-mit program, most states are autho-rized to issue permits through theirEPA-approved permit programs. InColorado, stormwater dischargepermits are issued by the ColoradoDepartment of Public Health andEnvironment (“CDPHE”) through

the Colorado Discharge PermitSystem (“CDPS”). In order to avoidthe burden of preparing facility-spe-cific individual permits for eachfacility, CDPHE issues general per-mits applicable to entire categoriesof industrial activities. Thisapproach offers a streamlined per-mitting process which requires facil-ities only to file basic applicationmaterials with CDPHE in order toobtain coverage under the applica-ble general permit.

General permits issued under theCDPS program require renewalevery five years, and CDPHE hashad its hands full recently with sev-eral permits expiring in 2011 and2012. CDPS General Permits forlight industrial activity (Permit No.COR01000), heavy industrial activi-ty (Permit No. COR020000) and therecycling industry (Permit No.060000) expired in 2011, and allthree permits have been replaced bya single multi-sector permit cover-ing twenty-six industrial sectors,which becomes effective on July 1,2012 (Permit No. COR 900000).Additionally, the CDPS general per-mit for stormwater discharges fromconstruction activities (Permit No.COR030000) expires June 30, 2012and will be administratively extend-ed until a revised permit is finalized.Facilities engaged in a wide range ofindustrial activities, including con-struction, oil and gas extraction andrefining, landfill operations, auto-mobile salvage operations, scraprecycling, printing and publishingoperations, and the manufacture ofchemicals, paper products, roofingmaterials, textiles, and other prod-ucts will be impacted by recentdevelopments relating to theseexpiring permits. These facilitiesshould be aware of both how tocomply with new permit require-ments, and what affirmative stepsare required to maintain permit cov-erage when the old permits expire.

Multi-Sector General PermitOn March 7, 2012, CDPHE finalizeda new general permit for stormwater discharges from twenty-sixsectors of industrial sites (the “MultiSector General Permit” or “MGSP”).The permit becomes effective on

(continued on page 10)

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5MAY 2012

PRESIDENT’S PAGEBY ELLEN CADETTE

We are lucky to live in Colorado,where our judges are merit-selectedand not elected. Our system of judi-cial appointment is over 45 years old,adopted by voters as aConstitutional amendment.3 Withthe merit-based system, judges areappointed by the Governor fromcandidates selected by a nominatingcommission for the Governor’sreview. There is a separate nominat-ing commission for the SupremeCourt and the Court of Appeals, andone commission for each judicial dis-trict in the state for the district andcounty courts.4 The commissions arecomprised in a very specific manner.The commissions must consist of cer-tain numbers of non-lawyer andlawyer citizens, with no more thanhalf of such persons plus one belong-ing to the same political party among

May 1 is “Law Day” across the UnitedStates. At the urging of his legal counsel,President Eisenhower declared it so in1958.1 “Law Day, U.S.A.” became codi-fied as such in 1961, right between“Honor America Days” and “LeifErikson Day” in the United States Code.It is a “special day of celebration by thepeople of the United States . . . in appre-ciation of their liberties and the reaffir-mation of their loyalty to the UnitedStates and of their rededication to theideals of equality and justice under lawin their relations with each other andwith other countries; and [f]or the culti-vation of the respect for law that is sovital to the democratic way of life.”2

By the time you may be reading this, ourown bar association will have honoredLaw Day by presenting to students atfour Boulder County high schools onMay 3rd and 4th regarding the legalrights and responsibilities they will haveonce they turn eighteen. Thanks toChristine Hylbert and to our Law Daycommittee (Jud Hite, Tucker Katz, KeithOlivia, and Dave Cheval), and to all whohelped and volunteered for that effort byspeaking in the schools.

Law Day provides us with an annualopportunity to reflect upon and appreci-ate what our laws mean to us, and theimportance of the judicial system in ourlives. Here’s my two cents:

other requirements, including geo-graphical requirements for the districtcommissions.5 Our Constitutionalamendment adopting the merit-basedsystem of judicial selection inColorado took many years to accom-plish; the process began in 1939.6

Other aspects of our merit-basedselection process include judicial per-formance reviews and retention elec-tions once a judge’s term has expired.For an excellent summary on howColoradans select and retain judges,see the article entitled “HowColorado Chooses Judges-Summaryof Colorado’s Non-Partisan JudicialMerit Selection, Evaluation, andRetention Processes” on the ColoradoJudicial Institute’s website.7

(continued on page 8)

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MAY 2012

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What a great success the Tree Planting Project was on

April 21 at FourMile Canyon Burn area.congratulations to all those who helped plant and those who donated money for the trees.

The BCBA collected $3000 for trees.

ANNUAL LONGMONT LAWYERS LUNCHPresident Ellen Cadette (left) welcomes

Judge Kari Quevli and her division clerks, Amanda Talbott and Jan Davison.

The lunch was attended by 50 Longmont Lawyers.

8 MAY 2012

PRESIDENT’S PAGE (continued from page 5)

The alternative to merit-based selec-tion, which many states have, is thepopular election of judges. Imaginethe consternation for your client,knowing that the opposing counselor party to a case contributed a heftysum to the presiding judge’s cam-paign, and your client belongs to adifferent political party. Or, picturethis: the presiding judge in your casehinted at how she might rule on yourtype of case while out on the cam-paign trail last year, and it doesn’t goyour way.

Between 2000 and 2009, $206.9 mil-lion was raised by Supreme CourtJudicial candidates in 26 states usingthe elective process of judicial selec-tion (or some hybrid system), com-pared to less than half that amountraised during the preceding decade.8Spending on nasty attack advertisingsaw a similar surge during the lastdecade.9

It is not just the political pressureand potential for bias that is prob-

lematic for judges under the electionsystem; it is the perceptions that liti-gants have about whether justice isbeing served in those courts.10

When people don’t have confidencein the fairness of our justice system,they lose respect for it. Given thatour judicial branch is one of three ofbranches upon which our verydemocracy is based, this, for lack of abetter phrase, is not good!

While not perfect, at least the merit-based system of selecting judgesstrives to keep political pressuresfrom dominating our courtroomsand interfering with public percep-tions of fairness in our courts.

Hope to see you all at the AnnualDinner on June 7th at the FolsomCenter Plate at C.U.!

FOOTNOTES1. Charles S. Rhyne, president of the AmericanBar Association in 1957-58.2. 36 U.S.C. §113.3. Constitutional Amendments and a ReferredLaw submitted to and adopted by the People

at the General Election, Nov. 8, 1966, 1967Colo. Sess. Laws, ch. 455, 5-10 (1966 supple-ment) (amending Colo. Const. art. VI).4. Colo. Const. art. VI, section 24 (1).5. Colo. Const. art. VI, section 24 (2) and (3).6. Hon. Gregory J. Hobbs, Jr., ColoradoJudicial Merit Selection – “A Well-Deserved40th Anniversary Celebration,” 35 TheColorado Lawyer 13 (April 2006). This articlecontains an interesting summary of the histo-ry behind the amendment.7. www.coloradojudicialinstitute.org8. James Sample, Adam Skaggs and JonathanBlitzer, Linda Casey, “The New Politics ofJudicial Elections,” 2000-2009: Decade ofChange” at p. 8 (2010)..9. Id. at 25.10.“Whether or not [judicial campaign] contri-butions tilt the scales of justice, three out ofevery four Americans believe that campaigncontributions affect courtroom decisions.”Sandra Day O’Connor, forward, JamesSample, Adam Skaggs and Jonathan Blitzer,Linda Casey, “The New Politics of JudicialElections, 2000-2009: Decade of Change(2010).”

MAY 2012 9

Pro Bono ReferralsThirteen cases were referred dur-ing March. Thank you to the fol-lowing attorneys:

William BenjaminDaniel FlynnJudson HiteChris JeffersWilliam MeyerKaren RadakovichCurt RautenstrausEllen RossCraig SmallGinger Vidrine

Pro Se Program Volunteers

Joyce BergmannJohn HoelleLauren IvisonTucker KatzMichael MorphewCraig SmallMichelle StollLeonard TanisKaren Trojanowski

BCAP VolunteersThank you to the following attor-neys who accepted pro bonoreferrals for the Boulder CountyAIDS Project in March:Paul Bierbaum

Pro Bono Corner

Interested in a Pro Bono case?Please call Erika at 303-449-2197.

CLE credits available for pro bono service.

PRO BONO PAGE

Boulder County Bar AssociationProfessionalism Committee On-Call Schedule

April 30 Steve Meyrich 303.440.8238 May 7 Helen Stone 303.442.0802

May 14 Curt Rautenstrauss 303.666.8576 May 21 Bruce Fest 303.494.5600

May 28 Trip DeMuth 303.447.7775

10 MAY 2012

INDUSTRIAL AND CONSTRUCTION SITE PERMITS (continued from page 4)

July 1, 2012. The MSGP will apply toindustrial activities that were previ-ously covered by the general permitsfor light industrial activities, heavyindustrial activities and the recyclingindustry. The combined general per-mit is largely modeled on the 2008Multi-Sector General Permit issuedby EPA. CDPHE determined thatthe combined permit is a more user-friendly approach, promotes consis-tency of permit requirements, andwill allow for a more efficientprocess for reviewing and issuingpermit certifications.

The new Colorado MSGP includessignificant changes from the threepermits that it replaces. CDPHE

explains in the MSGP fact sheet thatthese changes were deemed neces-sary because the expiring permitshave not been significantly modifiedsince 1992, and new informationdeveloped since that time supportsboth the consolidation of the permitsand certain major changes to permitrequirements. One such change isthe addition of a practice-based efflu-ent limitation requiring permittees tominimize the exposure of pollutantsources associated with manufactur-ing, processing, and storage areas torain, snow, snowmelt and runoff,such as by locating industrial materi-als and activities inside or protectingthem with storm resistant coverings.The MGSP also contains new provi-

sions that could require a facility tomeet site-specific water quality-based effluent limitations, ratherthan industry-wide effluent limita-tions, if necessary to comply withwater quality standards. Additionalnew requirements apply to dis-charges to water quality impairedwaters and waters designated as crit-ical habitat for threatened or endan-gered species. The MSGP alsoincludes new requirements relatingto stormwater management planrevisions, inspection and monitoringprocedures, and related recordkeep-ing.

Current permittees with coverageunder any of the three expiringindustrial general permits willremain covered until they obtain apermit certification under the newMSGP. However, permittees willhave to modify facility processes andprocedures to comply with MSGPrequirements before July 1, 2012.While the MSGP covers a broadrange of industrial activities, it doesnot apply to discharges associatedwith metal mining operations andmine waste remediation (covered byCDPS Permit No. COR040000) orstormwater discharges associatedwith sand and gravel mining andprocessing (covered by CDPS PermitNo. COR340000).

Construction General PermitCDPHE’s CDPS general permit forstormwater discharges from con-struction sites expires June 30, 2012;however, CDPHE has not publisheda draft replacement permit, andintends to administratively extendthe expiring construction generalpermit (“CGP”). Construction sitesthat obtained coverage under theexpiring permit on or after February6, 2012 will be automatically coveredafter June 30, 2012, but construction

(continued on page 11)

MAY 2012 11

INDUSTRIAL AND CONSTRUCTION SITE PERMITS (continued from page11)

sites permitted before February 6,2012 were required to file permitrenewal papers with CDPHE byMarch 31, 2012 to extend their cov-erage after the permit’s expirationdate.

While CDPHE has not made avail-able a draft renewal CGP, therenewal undoubtedly will beimpacted—as the MSGP was—byactions at the federal level.Specifically, in 2009, EPA promul-gated what is known as theConstruction and Development(“C&D”) Rule. See 74 Fed. Reg.63057 & 40 C.F.R. Part 450. TheC&D Rule requires construction siteoperators to control the discharge ofpollutants contained in stormwaterfrom their construction sites byimplementing a range of erosionand sediment control measures andpollution prevention practices.These requirements became effec-tive February 1, 2010, and all statesthat issue CGPs (as well as EPA) arerequired to incorporate the C&Drule requirements into the nextrenewal of their CGP.

The most significant provision ofthe C&D rule required construction

sites ten acres or more in size tomeet a numeric standard for turbid-ity and conduct sampling ofstormwater discharges to confirmcompliance with the standard.However, EPA stayed the effective-ness of the numeric effluent limitportion of the C&D rule after find-ing errors in the methodology usedto reach it. See 75 Fed. Reg. 68215.As a result, neither EPA nor thestates are required to includenumeric effluent limits in reissuedCGPs. EPA is currently seeking newdata in connection with numericeffluent limits and intends to correctthe C&D rule, after which all CGPswill be required to include a numer-ic effluent limit. See 77 Fed. Reg.112.

As for the Colorado CGP, the expir-ing general permit does not containnumeric effluent limits, and therenewal permit will not be requiredto if it is issued before EPA correctsthe federal numeric effluent limit.However, the renewed ColoradoCGP will have to incorporate thecurrently active federal C&D rule,which contains new requirementsfor erosion and sedimentation con-trol such as maintaining natural

buffers around surface waters, strin-gent requirements for the promptinitiation of soil stabilization mea-sures in inactive areas of the con-struction site, and additionalrequirements intended to protectimpaired and high quality waters.

Gregory Tan is a former EPA enforce-ment attorney now in private practiceat Greenberg Traurig, LLP. Greg coun-sels clients on CDPS and NPDES permitcompliance, as well as a variety of otherenvironmental enforcement and compli-ance matters, from his office in Denver.Greg lives in Boulder County.

12 MAY 2012

WONDERING WHY YOU WEREN’T LISTED IN THE ANNUAL DIRECTORY SPECIALITY AREA SECTION?

DO YOU WANT TO BE LISTED ON THE BOULDER COUNTY BAR WEBSITE?

FIND A LAWYERHow would a prospective client OR another lawyer find you?1) When you Google” boulder county bar association, you will find www.boulder-bar.org.A button leads the client to Find a Lawyer and to you.2) Our office continues to receive many public calls from those in- and out-of- stateseeking legal representation. We refer these people to the Find a Lawyer section on the bar’s website.3) When the public searches the CBA website for Boulder County lawyers, the list used is our Find a Lawyerindex.Cost: The annual cost for you to be listed in one specialty area is $50, which also includes your specialty arealisting in the front section of the 2012-2013 Annual Membership Directory. Each additional specialty arealisting is $25, and you may be listed in up to 8 areas of the law. To see the list of specialty areas go towww.boulder-bar.org/find/index.html

Please select from the following options:________ $50.00 for one listing in Find a Lawyer including your listing in the 2012-2013

Annual Directory Specialty Heading Section Area of practice_______________________________________________$25.00 for each additional area of practice in the Find a Lawyer and Annual DirectoryAdditional areas of practice__________________________________Total amount due. _____________

Please make checks to BCBA or pay on-line with your credit card at www.boulder-bar.org, click on the calendar to June 1

Name________________________________________ Firm Name (optional) ___________________________

Address_______________________________________________ City___________________ State_______ Zip_______

Phone_________________ Fax___________Email_ _____________________Website__________________________________________

Return this form to the bar office by June 1 with your check written to BCBA.You may also pay online with a credit card at www.boulder-bar.org, click on the calendar and go to June 1.

1942 Broadway, Boulder, CO 80302 Thanks for your continued support of your bar association.

MAY 2012 13

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MAY 2012 14

required” by federal law. The CWArequires States to adopt numeric stan-dards if they are “necessary to protectthe designated use” of waters (such asaquatic life). 40 C.F.R. 131.11(a). TheEPA may make a determination thatnew or revised water quality standardsfor nutrients are necessary, CWA §303(c)(4)(B), but has not done so inColorado. In addition, discharge per-mits must contain effluent limits tocomply with existing narrative stan-dards, see, e.g., Reg. 31.11(1) (5 CCR1002-31) (“state surface waters shall befree from substances . . . which . . . areharmful to the beneficial uses . . . .”),but Federal regulations allow states tochoose from multiple methods to do so.40 C.F.R. 122.44(d). State regulatorstook the position that the absence ofspecific nutrient standards under theCWA does not mean standards are notrequired by federal law, and that adop-tion of the proposed nutrient regula-tions was preferable because EPAwould adopt more stringent nutrientstandards if the State did not act first.Notably, environmental groups filedtwo separate lawsuits filed on March13 pushing EPA to take actions thatcould result in nutrients effluent limita-tion and water quality standards man-dates6.

The FutureIf the nutrient regulations survivereview under EO5 and action by thestate legislature, they will represent amajor turning point in nutrient regula-tion in Colorado and potentially a tem-plate for other states to follow. Over thenext several years, wastewater dis-chargers will be challenged to imple-ment new technology for nutrient con-trol. In addition, they will need to col-lect data, and plan in the hope that theycan develop site-specific standards thatboth protect the environment and arefeasible to attain. This process willrequire difficult technical, scientific,and policy choices for the regulatedcommunity and state regulators foryears to come.

NUTRIENT REGULATIONS (continued from page 1)

adoption as site-specific standardsonly upstream of wastewater dis-charges, or to protect lakes with drink-ing water intakes.

In the next phase of nutrient regula-tion beginning after 2022, the interimvalues may be considered as waterquality standards for any waters of thestate. Because current treatment tech-nology cannot achieve the interim val-ues for Nitrogen, the burden will beon dischargers to justify either alterna-tive standards that are protective ofaquatic life, or variances based on fea-sibility and cost of treatment. After2022, the WQCC may also add manda-tory controls for agriculture, construc-tion, and other non-point sources ifthe voluntary approach in the initialphase is insufficient.

Unfunded MandateThe nutrient regulations raise signifi-cant questions about the relationshipamong the federal, state, and localgovernments. CRS § 29-1-304.5 pro-hibits rules that create any “new statemandate” without state funding toreimburse local government, unlessthe mandate is the result of “anyrequirement of federal law.” ExecutiveOrder D 2011-005 (“EO5”) contains asimilar prohibition against unfundedmandates on local government. Manyof the costs of nutrient control will beborne by cities, drainage districts, andsanitation districts. The Governor’soffice requested an explanation fromEPA of “the precise nature of [any]legal requirement” under the CWA forstates to adopt rules to control the dis-charge of nutrients.4 EPA has not yetresponded, but stated in filings beforethe WQCC that “action by theCommission to adopt some version ofthe proposed rules would move theState’s program in the right direc-tion.”5

The key question is whether the nutri-ent regulations are “specifically

Gabe Racz is Counsel at Vranesh andRaisch, LLP in Boulder. Gabe specializesin water quality, water rights, environ-mental, and eminent domain matters. Hehas a Bachelor of Music degree fromIthaca College and a J.D. degree from theUniversity of Illinois at Urbana-Champaign, and has practiced inColorado since 2000.

Footnotes1. WQCC took preliminary final action onMarch 14 after a three-day hearing and plans toapprove the final regulations at its May 14meeting.2. See, e.g., Nancy K. Stoner, Acting AssistantAdministrator, “Working in Partnership withStates to Address Phosphorus and NitrogenPollution through Use of a Framework for StateNutrient Reductions,” March 16, 2011 (availableat http://water.epa.gov/scitech/ swguid-ance/standards/criteria/nutrients/upload/memo_nitrogen_framework.pdf).3. EPA has summarized state progress athttp://water.epa.gov/scitech/swguidance/standards/criteria/nutrients/progress.cfm4. Letter to James Martin, RegionalAdministrator, March 9, 2012 (available athttp://www.cdphe.state.co.us/op/wqcc/Hearings/Rulemaking/31_85nutrients/PublicComment/31_85pcGovernorEx1.pdf).5. Nutrients hearing written rebuttal commentsof EPA (available ath t t p : / / w w w . c d p h e . s t a t e . c o . u s / o p/wqcc/Hearings/Rulemaking/31_85nutrients/RebuttalComments/31_85rebuttalcommentsEPA.pdf).6. Natural Resources Defense Council v. Jackson,12-cv-1848 (S.D.N.Y); Gulf Restoration Networkv. Jackson, 12-cv-677 (E.D. La.).

MAY 2012 15

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