Code of Colorado Regulations
1000 - Department of Public Health and Environment
1002 - Water Quality Control Commission (1002 Series)
5 CCR 1002-33 - REGULATION NO. 33 - CLASSIFICATIONS AND NUMERIC STANDARDS FOR UPPER COLORADO RIVER BASIN AND NORTH PLATTE RIVER (PLANNING REGION 12)
Section 5 CCR 1002-33.36 - STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE; JULY, 2003 RULEMAKING

A. Resegmentation

Some renumbering and/or creation of new segments was made in the basin due to information which showed that:

B. Recreation Classifications/Fecal Coliform and E. Coli Standards

The biological standards were updated to include the dual standards for E. coli and fecal coliform, which were adopted by the Commission in the 2000 revisions to the Basic Standards. As stated in the statement of basis and purpose for the Basic Standards revisions, the Commission intends that dischargers will have the option of either parameter being used in establishing effluent limitations in discharge permits. In making section 303(d) listing decisions, in the event of a conflict between fecal coliform and E. coli data, the E. coli data will govern. The Commission believes that these provisions will help ease the transition from fecal coliform to E. coli standards.

In a continuation of the Commission's efforts to comply with the requirements contained in the federal Clean Water Act that all waters of the nation should be suitable for recreation in and on the water (known as the "swimmable" goal), the Commission reviewed all Recreation Class 2 segments. In Colorado, the "swimmable" goal translates into Recreation Class 1a, with the 200/100 ml fecal coliform and 126/100 ml E. Coli standard, and Class 1b with the 325/100 ml fecal coliform and 205/100 ml E. coli standard. Class 1a indicates waters where primary contact uses have been documented or are presumed to be present. Class 1b indicates waters where no use attainability analysis has been performed demonstrating that a recreation class 2 classification is appropriate, but where a reasonable level of inquiry has failed to identify any existing class 1 uses. To maintain the existing Recreation Class 2 with the 2000/100 ml fecal coliform and 630/100 ml E. coli standard on a segment, it must be shown that there is not reasonable potential for Recreation Class 1 uses to occur within the next 20-year period (e.g. ephemeral or small streams that have insufficient depth to support any type of Recreation Class 1 use or very restricted access).

A recreation class 1a classification of a segment is not intended to imply that the owner or operator of property surrounding and waterbody in a segment would allow access for primary contact recreation. The application of recreation classifications to state waters pursuant to these provisions does not create any rights of access on or across private property for the purposes of recreation in or on such waters. A recreation class 1a classification is intended to only affect the use classification and water quality standards of a segment, and does not imply public or recreational access to waters with restricted access within a segment.

For segments changing to recreation Class 1a because no information was available about actual recreational uses, the last paragraph of section 31.6 will apply to future changes to the recreation classification where a proper showing is made through a use attainability analysis that a recreation Class 2 classification is appropriate, without application of the other downgrading criteria in this section. Moreover, the Commission is relying in part on the testimony from EPA that completion of a use attainability analysis showing that a lower recreation classification is appropriate satisfies applicable downgrading criteria. Based on these factors, the Commission intends that in a future rulemaking hearing, the test for adopting a recreation Class 2 classification would be the same as if it had been considered in this hearing

The following segments with existing Recreation Class 1 classifications were changed to Recreation Class 1a and a 126/100 ml E. coli standard was added:

Upper Colorado River segments 1, 2, 3a, 4, 5, 8, 9 and 10

Blue River segments 1, 2a, 2b, 3, 6, 9, 10, 14, 15, 16, 17 and 18

Eagle River segments 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 12

Roaring Fork River segments 1, 2, 3, 5, 6, 7, 8 and 9

North Platte River segments 1, 3 and 4

Upper Yampa River segments 1, 2a, 2b, 3, 6, 8, 13a, 13b, 13c, 14 and 18

Based on the information received that showed Recreation Class 1a uses are in place or are presumed to be present in at least a portion of the segment, the Commission changed the following segments from Recreation Class 2 to Recreation Class 1a with a 200/100 ml fecal coliform and 126/100 ml E. coli standard:

Upper Colorado segment 7b (Deep and Sheephorn Creeks by default)

Blue River segments 5 and 8 (Chihuahua Creek by default)

Roaring Fork River segments 4 and 10

North Platte River segment 5a

Upper Yampa River segments 13d and 19

Based on evidence presented, the Commission has changed the following from Recreation Class 2 to Recreation Class 1b with a 325/100 ml fecal coliform and 205/100 ml E. coli standard:

Blue River segments 11, 12 and 13

Eagle River segment 11

North Platte River segment 2 Upper

Yampa River segments 5 and 7

The following segments retained their Recreation Class 2 classification with 2,000/100mL fecal coliform and 630/100 ml E. coli standard after sufficient evidence was received that a Recreation Class 1a or 1b use was unattainable.

Upper Colorado River segments 6a, 6b, 6c and 7a

Blue River segments 7, 19 and 20

North Platte River segments 5b, 6 and 7 Upper

Yampa River segments 4, 12 and 13e

Segment 3a of the Roaring Fork River retained a Recreation Class 2 classification after sufficient evidence was received that a Recreation Class 1a or 1b use was unattainable. However, a 200 fecal coliform was retained, and a 126/100 ml E. coli standard was added as per a stipulated agreement which was reached between the Division and Spring Valley Sanitation District.

C. Aquatic Life Segments without Full Standards

The Commission reviewed information regarding Aquatic Life Class 2 segments where the full set of inorganic aquatic life protection standards have not been applied. Generally, these are dry segments with only rudimentary aquatic life. The Commission's policy has been that rather than adopt the full set of inorganic standards for these segments, standards for dissolved oxygen, pH and fecal coliform provide sufficient protection.

Segments where investigation showed that fish populations were present, or where fishery habitat improvement projects were completed or underway, were upgraded with the addition of the full suite of inorganic standards. These segments are:

Blue River segment 19

Yampa River segment 13e (Grassy Creek)

There are several segments in the Upper Colorado basin which had previously been assigned Aquatic Life Use classifications but lacked a complete suite of relevant standards. Aquatic life based standards were added to the following segments:

Eagle River segment 5 Cr+3

D. Revised Aquatic Life Use Classifications

The Commission reviewed information regarding existing aquatic communities. The following segment=s aquatic life classifications were upgraded from aquatic life class 2 to aquatic life class 1 based on information presented that showed diverse aquatic communities in these segments.

Blue River segments 13 and 19

E. Ambient Quality-Based Standards

There are several segments in the Upper Colorado River Basin that are assigned ambient standards. Ambient standards are adopted where natural or irreversible man-induced conditions result in water quality levels higher than table value standards. EPA had requested that the Commission review the information that is the basis for these standards as well as any new information that would indicate whether they are still appropriate, need to be modified, or should be dropped.

Ambient standards were removed from the following segments due to new data and/or changes to the basic standards which indicated ambient standards were no longer appropriate:

F. Temporary Modifications

There were several segments where temporary modifications that reflect current ambient conditions were adopted or retained. Temporary modifications were generally set to expire on 2/28/09 to coincide with the next triennial review except as otherwise noted. The segments and the constituents are:

The Temporary Modification of the Yampa River segment 13d selenium standard is assigned on the basis of uncertainty as per the provisions of 31.7(3)(a)(iii) of the Basic Standards and Methodologies for Surface Waters, Regulation No. 31.

Temporary Modifications were also deleted from several segments, either because the segment is in attainment of new standards adopted by the Commission or because of improvements in water quality. These segments and constituents include:

G. Modification of Water Supply Standards

Water supply standards were modified to conform to the changes made by the Commission in the 2000 revisions to the Basic Standards (see Regulation No. 31 at 31.11(6)). The Commission modified the water supply standards for iron, manganese, and sulfate that are based on secondary drinking water standards (based on esthetics as opposed to human-health risks). The numeric values in the tables were changed to Fe(ch) = WS (dis), Mn(ch) = WS (dis), and SO4 = WS. These abbreviations mean that for all surface waters with an actual water supply use, the less restrictive of the following two options shall apply as numerical standards, as discussed in the Basic Standards and Methodologies at 31.11(6): either (i) existing quality as of January 1 2000; or (ii) Iron = 300 (g/L (dissolved); Manganese = 50 (g/L (dissolved); Sulfate = 250 mg/L (dissolved). For all surface waters with a "Water Supply" classification that are not in actual use as a water supply, no water supply standards are applied for iron, manganese or sulfate, unless the Commission determined as the result of a site-specific rulemaking hearing that such standards are appropriate.

There are several segments in the North Platte River basin which had previously classified for Water Supply Use, but which had not been assigned a complete suite of water supply based numeric standards. Water Supply standards for arsenic, chloride and sulfate, in addition to the water supply standards discussed above, were added to the following segments:

North Platte River segment 4

North Platte River segment 5

H. Agriculture Standards

Numeric Standards to protect Agricultural Uses were adopted for the following segments:

Upper Colorado River segment 6c

Eagle River segment 11

Yampa River segment 12

I. Other Site-Specific Revisions

The Commission corrected several typographical and spelling errors, and clarified segment descriptions.

In addition, the following site-specific issues were addressed:

Blue River segments 2a, 2b and 11: Surface water quality in these segments will be influenced by ongoing CERCLA cleanup at the Wellington-Oro mine. The mine discharges to French Gulch (segment 11) above its confluence with the Blue River. The Commission has promulgated site-specific cadmium and zinc standards for segments 2a and 2b, and segment 11. The standards are based upon zinc and cadmium toxicity to the different life stages of brown trout that are expected to occur in the Blue River below French Gulch.

Prior to the 2003 Hearing, segment 2 was defined as that portion of the Blue River from the confluence with the Swan River. Habitat in the upper portion of the segment has been modified as a result of historic instream mining and construction of a kayak course within the Town of Breckenridge. There is an absence of spawning and rearing habitat for aquatic species. Below the Town fishery habitat improves markedly. Additional habitat improvement projects are under consideration. The habitat variability within this reach of the Blue River forms the basis for re-segmentation into the new segments 2a and 2b. Because of the habitat differences in evidence, different life stages would be expected to be present in each. Consequently, different toxicity based cadmium and zinc standards have promulgated. These criteria will form the basis for treatment targets for the remediation effort.

The selected treatment alternative for the Wellington-Oro involves chemical precipitation accomplished via lime addition. The treatment plant discharge will consequently increase instream hardness over current ambient conditions. It is anticipated that some elevation of hardness levels will occur in the Blue River mainstem even after mixing. Increased hardness levels will ameliorate cadmium and zinc toxicity. Therefore, the zinc standards for the Blue River, and the proposed cadmium standard for the lower segment 2b, are expressed in terms of this hardness based relationship. The cadmium standard adopted for Blue River segment 2a is a technology-based criterion, however, the 4.0 ug/l standard only marginally exceeds the corresponding Table Value Standard.

Significant water quality improvement is anticipated in French Gulch itself with the initiation of treatment plant operations. However, the Commission has determined that attainment of Table Value Standards, or alternate site-specific standards intended to allow establishment of a viable aquatic population is not possible within the portion of French Gulch below the Wellington-Oro discharge. The Commission has determined that additional water quality improvement beyond that accomplished through collection and treatment of mine water at the Wellington-Oro site is infeasible. Therefore a finding has been made that post-remediation cadmium, lead and zinc levels will likely exceed Table Value Standards as a result of irreversible anthropogenic causes. On this basis, the Commission has adopted ambient based standards for these parameters which are defined as "existing quality".

Blue River segment 8: - The Division and NWCCOG proposed to move Jones Gulch and Camp Creek from segment 6 and place them in this segment. Keystone Resort was opposed to this resegmentation. Prior to the hearing these proposals were withdrawn, as the result of a stipulated agreement between the Division and the other parties. Pursuant to this agreement, Keystone will complete an aquatic life use attainability analysis for these streams and no ski area development will occur in the Jones Gulch watershed before the issue of appropriate standards, classifications and designations is brought before the Commission for consideration.

Eagle River segment 11: The Commission opted to assign the Aquatic Life Use-based selenium standard to Eagle River segment 11. The Commission assigned Agriculture Use-based numeric standards for other parameters. The Aquatic Life based selenium standard was assigned because the ambient selenium concentrations in Eagle River segment 11 (4.54 ug/l) approach the Aquatic Life Use-based numeric Table Value Standard of 4.6 ug/l (chronic). Section 303(c)(2)(B) of the federal Clean Water Act requires:

"Whenever a State reviews water quality standards pursuant to paragraph (1) of this subsection, or revises or adopts new standards pursuant to this paragraph, such State shall adopt criteria for all toxic pollutants listed pursuant to section 307(a)(1) of this Act for which criteria have been published under section 304(a), the discharge or presence of which in the affected waters could reasonably be expected to interfere with those designated uses adopted by the State, as necessary to support such designated uses. Such criteria shall be specific numeric criteria for such toxic pollutants."

Yampa River segment 13b: The Commission adopted an ambient based iron standard of 1600 ug/L for Foidel and Middle Creeks in Segment 13b of the Yampa River. This ambient standard was adopted pursuant to Regulation 31.7(1)(b)(ii) and evidence presented by Twentymile Coal Company that the high levels of iron in those creeks are due to natural causes.

Yampa River segment 13d: The Commission changed the Aquatic Life Classification of Segment 13d from Warm 1 to Warm 2 and the Recreation Classification from Recreation 2 to 1a. It adopted a use protected designation, as well as the full set of water quality standards normally associated with Class 2 streams. The Aquatic Life Warm 2 classification was based on application of Regulation 31.13(1)(c) and evidence provided by Seneca Coal Company and the Division that showed that Dry Creek is not capable of sustaining a wide variety of biota, including sensitive species due to physical habitat and flows. The Commission adopted a temporary modification for selenium of 60 Fg/L based on uncertainty. (Reg. 31.7(3)(a)(iii).)

Yampa River segment 13e: The Commission moved Sage Creek from Segment 13d and Grassy Creek from Segment 12 into a new Segment 13e classified as Aquatic Life Warm 2, Recreation Class 2, Agriculture and Water Supply. It adopted a use protected designation as well as the full set of water quality standards normally associated with Class 2 streams. The Aquatic Life Warm 2 classification was based on application of Regulation 31.13(1)(c) and evidence provided by Seneca Coal Company and the Division that showed that Sage Creek and Grassy Creek are not capable of sustaining a wide variety of biota, including sensitive species due to physical habitat and water flows.

PARTIES/MAILING LIST STATUS FOR JULY, 2003 RULEMAKING HEARING