Code of Colorado Regulations
1000 - Department of Public Health and Environment
1002 - Water Quality Control Commission (1002 Series)
5 CCR 1002-61 - REGULATION NO. 61 - COLORADO DISCHARGE PERMIT SYSTEM REGULATIONS
Section 5 CCR 1002-61.51 - STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY, AND PURPOSE - MAY 2002 RULEMAKING - HB 01-1032 IMPLEMENTING REGULATIONS

The provisions of 25-8-202(1)(d), (1)(i) and (2); and 25-8-501 to 504 C.R.S., provide the specific statutory authority for adoption. The Commission has also adopted, in compliance with 24-4-103(4) C.R.S., the following statement of basis and purpose.

BASIS AND PURPOSE

House Bill 01-1032 was passed by the legislature in the 2001 session and requires that regulations be adopted to establish a permit process that allows permit conditions to remain in effect as long as circumstances dictate those conditions. The bill also eliminates the five-year maximum term for permits and provides for a risk-based approach to streamline the permit renewal process where minimal changes in permit conditions are necessary.

The Commission has adopted a new subsection, 61.1(4), that provides for longer permit duration for those CDPS permits that are not subject to federal oversight, such as permits for discharges to ground water and permits for Housed Commercial Swine Feeding Operations. Although the statute no longer specifies a maximum permit duration, the Commission adopted a nominal permit term of ten years as a significant change, requiring a thorough analysis of the potential impacts to water quality from the permitted operation, typically would occur within that time. In recognition of the need to consider site-specific circumstances, the Commission included a provision for the permit term to be increased or reduced depending on the risk that changes in the permit will be necessary to ensure that water quality standards are protected. The Commission expects that the Division will develop criteria to be used to determine when a permit period other than ten years is appropriate.

The Commission adopted a new subsection, 61.1(5), to address the aspect of the statute that requires permits to be reissued with minimal or no change.

The ability of the Division to reissue permits with little or no change as contemplated by HB 01-1032 is complicated by the fact that there have been a number of additions to the regulatory framework applicable to permits for discharges to surface waters, such as revisions to the antidegradation and mixing zone regulations. In addition, the level of ambient flow and chemistry data collected on many streams has increased and this "new" information must be considered at the time of permit renewal. In the near term, many of the permits for operations that discharge to surface waters will be affected by one or more of these changes and will require a comprehensive analysis to determine applicable water quality standards-based effluent limits. In addition, where additional effluent data are collected by permittees, these data must be evaluated to determine the "reasonable potential" for the discharge to cause or contribute to a water quality standards violation.

Initially, the opportunity to renew permits with little or no change may only apply to general permits and other permits of similar complexity for operations whose discharges contain few pollutants of concern and/or for which water quality analyses are based on one or more simplifying assumptions. As the rate of change in the regulatory framework slows, other types of permits will become less prone to major change at the time of renewal and would be more likely to meet the requirement for reissuance with little or no change. The Commission determined that a flexible process, that can be periodically updated to reflect current water quality conditions as affected by discharges, is necessary to maximize the number of permits that can be renewed with minimal or no change. Therefore, the Division will be required to develop, and periodically update, criteria to determine if a permit can be renewed with little or no change. These criteria should be based on input from a broad group of stakeholders and should initially be scheduled for review and revision every three years until the Commission determines that review at a five year interval can occur without significantly reducing the number of permits that might otherwise be renewed with minimal or no change.

Conforming changes to subsections 61.8 and 61.10 have been made to delete references to five-year permit duration.