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 1002-33.56 - STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE; APRIL 11, 2016 RULEMAKING; FINAL ACTION MAY 9, 2016; EFFECTIVE DATE JUNE 30, 2016

1. To preserve the vested and future rights in irrigation.

2. To preserve the fishing and recreational facilities and the scenic attractions of Grand Lake, the Colorado River, and the Rocky Mountain National Park.

3. To preserve the present surface elevations of the water in Grand Lake and to prevent a variation in these elevations greater than their normal fluctuation.

4. To so conserve and make use of these waters for irrigation, power, industrial development, and other purposes, as to create the greatest benefits.

5. To maintain conditions of river flow for the benefit of domestic and sanitary uses of this water.

In 2008, the Commission adopted dual numeric and narrative standards for the protection and improvement of water clarity in Grand Lake pursuant to 31.13(3), because of Grand Lake's uniqueness as Colorado's largest natural lake. In doing so, the Commission stated that "Improvement of clarity within Grand Lake is expected to improve the quality of recreational uses of this unique resource." In 2008, the Commission also adopted a delayed effective date for the numeric standard as an appropriate policy choice to encourage cooperative efforts to improve Grand Lake clarity. These efforts have been difficult and protracted, but they have also yielded important progress in understanding the factors controlling clarity of Grand Lake. In 2014, the effective date was extended for two more years and the parties were directed that "the goal of the effort is to develop and propose by January 2016, an attainable and protective clarity standard for Grand Lake for consideration by the Commission." The purpose of this hearing was to consider a joint proposal by Grand County, Northwest Colorado Council of Governments, Colorado River Water Conservation District, and Northern Colorado Water Conservancy District ("Proponents") to modify the numeric clarity standard for Grand Lake.

While arguments were raised that the noticed proposal may go beyond the Commission's authority, the Commission did not make that finding. Rather, the Commission adopted a compromise proposal from the Division, and supported by the Proponents, the Bureau of Reclamation and other parties, that better balances the clarity, the water rights, the recreational fishery, and the water quality in the Three Lakes system. In today's hearing, the Commission deleted the 4-meter standard (which has not yet become effective) and adopted the proposed numeric values of 3.8-meter Secchi depth average and 2.5-meter Secchi depth daily minimums as Goal Qualifiers to the existing narrative standard. Goal Qualifiers are unique to Colorado's water quality standards framework and are not subject to EPA section 303(c)(2) review and approval and federal Clean Water Act standards and, in themselves, do not trigger section 303(d) assessment and listing. Goal Qualifiers are defined in Regulation #31 as appending to the use classification, and have been traditionally used in conjunction with a temporary modification. However, a temporary modification is not appropriate for Grand Lake because there are no permitted discharges (now a prerequisite for temporary modifications). The Commission has, in at least two other instances (Lower Yampa Segment 3b, Johnson Gulch; and Animas River Segments 3a, 4a and 9), used Goal Qualifiers to express a future desired water quality condition, rather than a future use classification goal.

The existing 4-meter summertime 85th percentile value standard was revised to 3.8-meter average Goal Qualifier as a refinement of the estimate of resulting clarity when there has been no pumping for at least seven days. The season was also refined to end just after the Labor Day weekend. This is the same concept that was the basis for the 2008 action, and achieving this level of clarity would signify protection of Grand Lake's clarity. The Commission also added a 2.5-meter daily minimum Goal Qualifier as a floor on clarity such that averaging clarity measurements over the entire summer will not mask abrupt decreases in clarity.

In this hearing the Commission reaffirmed its commitment to improved water clarity in Grand Lake. The Commission reiterates that improvement in the clarity of Grand Lake is necessary, while noting that a single "attainable" level of clarity may not exist. The current and future cooperative efforts should continue to focus on a feasible, balanced approach that does not sacrifice water rights, the recreational fishery, or water quality in the Three Lakes system. The Commission remains concerned that it may be infeasible or impractical to find a single numeric standard that can be implemented uniformly in all years due to the fundamental requirement for the CB-T system to operate in a manner which varies year-to-year depending on supply of and demand for water. Any future, proposed attainability-based numeric standard must address these implementation issues.

The Goal Qualifiers should be useful to guide the adaptive management process as embodied in the Memorandum of Understanding between the Proponents and the Bureau of Reclamation. Over the next five years, the Commission expects that the Parties to the MOU will engage in adaptive management that will improve clarity, and inform the operational component of the alternatives being considered. The adaptive management process will result in regular communication between the Parties to the MOU, monitoring of the operational adjustments on clarity, and an evaluation of the relative clarity improvements. Exhibit C to the MOU outlines the monitoring protocols. Three monitoring sites are identified (GL-WES, GL-MID, GL-ATW) and a sampling schedule is outlined, which states that samples will be collected once a week starting May 1 (or as soon as ice is off), 3 times per week from July 1 through September 11 (may be increased to daily sampling based on operational planning), and once a week from September 12 through October 30. From July 1 through September 11, measurements must be taken at all three sites, and will be averaged to evaluate whether the Goal Qualifiers are being met. If data for at least one of the three sites are missing on any given day, an average for that day will not be computed.

The narrative standard remains in effect and can serve to inform the purpose and need statement for the Bureau of Reclamation's assessment of alternatives. Once the Bureau's assessment is complete and there is a final assessment of the attainability constraints already identified, a proposal for an attainability-based clarity standard can be considered by the Commission.

The Division will assess consistency with the adopted narrative standard by monitoring whether the Proponents continue to implement the adaptive management process described in their Memorandum of Understanding and will review clarity measurements. Evaluation of the Goal Qualifiers will be accomplished by reviewing annual reports and summarizing progress at the Basin Issues Scoping Hearing. In addition, as with all standards, the clarity standards (and goals) for Grand Lake are subject to periodic review, and the Commission expects to review and revisit this issue in future review cycles.

PARTIES TO RULEMAKING