Code of Colorado Regulations
1000 - Department of Public Health and Environment
1002 - Water Quality Control Commission (1002 Series)
5 CCR 1002-82 - REGULATION NO. 82 - 401 CERTIFICATION REGULATION
Section 5 CCR 1002-82.15 - FINDINGS REGARDING BASIS FOR EMERGENCY RULE AND STATEMENT OF BASIS, STATUTORY AUTHORITY, AND PURPOSE FOR ADOPTION OF PERMANENT RULE (January, 1989 Amendments)

Current through Register Vol. 47, No. 5, March 10, 2024

Emergency Adoption

The Commission finds that the adoption of the amended regulation on an emergency basis is imperatively necessary for the preservation of the public welfare. Moreover, the Commission finds that for this rule not to be adopted with an immediate effective date would be contrary to the public interest.

The State has a substantial interest in maintaining its autonomy in establishing and implementing an appropriate water quality control program for Colorado, including the application of water quality standards and other water quality control requirements, especially in view of Colorado's complex, interrelated water quality and water quantity management systems. Expeditious approval of environmentally sound water development projects is an important state interest that should not be left to EPA control.

In order to assure adequate state 401 certification authority, on February 2, 1988, the Commission adopted certain emergency amendments to this rule. See Finding Regarding Basis for Emergency Rule, and Fiscal Impact Statement, for Amendments Adopted on February 2, 1988. By law, that emergency rule would expire on February 2, 1989. An emergency effective date for these new amendments is necessary to avoid any substantial gap in the effectiveness of fully adequate state 401 certification regulations. Such a gap could result in unnecessary confusion and substantial expense for project proponents seeking 401 certifications during that period. Therefore, this amended regulation shall be effective immediately and shall remain effective on an emergency basis until March 2, 1989, at which time the amended regulation becomes permanently effective.

BACKGROUND

These changes have been adopted by the Commission to ensure that the State has adequate authority to conduct the full certification required by section 401 of the federal Clean Water Act in connection with federal authorization of any activity that may result in any discharge into state surface waters. The revised language is intended to assure that the State has full authority to conduct the section 401 certifications required by the Federal Act. Language in the previous Statement of Basis and Purpose (2.4.11) that may have indicated more limited authority is hereby overridden.

Along with the clarifying the State's intent to conduct the full section 401 certification, these amendments resolve the issue of how State use classifications and water quality standards and conditions are to be applied to all activities requiring a section 404 permit, including reservoir and water diversion projects. The purpose of the new and amended provisions is to establish broad authority to address all pertinent water quality impacts of 404 permitted activities during both the construction and operational phases of such projects. The regulation reflects the Commission's twin responsibilities of preserving the water quality of the State by conducting full federal section 401 certification, while protecting the exercise of water rights by assuring consistency with C.R.S. 25-8-104.

SOURCE OF AUTHORITY TO ADOPT REGULATION

One threshold issue for the Commission is whether it should adopt some portion or all of these amendments solely pursuant to the authority in C.R.S. 25-8-202(1) (i.5) (relating to regulations governing 401 certification activities), or rather pursuant to the authority in C.R.S. 25-8-205 (relating to control regulation). In order to help minimize the risk of any legal challenge to these amendments, the Commission has decided to adopt these changes pursuant to the provisions of both sections.

In adopting these amendments, the Commission has considered all the factors listed in C.R.S. 25-5-205(2). The amendments and the regulation as a whole are necessary to assure that applicable federally-permitted activities will be in compliance with State water quality classifications and standards, and other water quality control requirements. (205(2)(a)). The regulation does not specify treatment requirements that are automatically applicable to any particular types of discharges. (205(2)(b)). Rather, the regulation relies principally on a list of management practices, monitoring requirements and mitigation requirements (in section 2.4.5) that may be applied in a particular case as necessary to assure compliance with applicable requirements. The inclusion of a wide variety of potential conditions is intended to assure that project-specific conditions can be formulated that will assure compliance with water quality standards and any other applicable requirements (e.g., other control regulations) in the most practical, economically and technically feasible manner available. (205(2)(c)). The Commission believes that the amended regulation is consistent with existing federal water quality control requirements. (205(2)(d)).

The regulation as amended, through the list of potential conditions, provides flexibility to take into account the continuous, intermittent, or seasonal nature of a discharge to be controlled in developing conditions for individual projects. (205(2)(e)). It is the intention of the Commission that these differences be taken into account by the Division in developing such project-specific conditions. Similarly, under the regulation as amended, the Division will have flexibility to take into account the presence or absence of dilution flows, and the capacity of the receiving water to assimilate the discharge, in fashioning conditions for a project. (205(2)(f)).

Essentially all of the potential conditions in section 2.4.5 are safety precautions that may need to be taken in specific situations to protect water quality. The need to apply any specific conditions to an individual project to assure compliance with the applicable water quality requirements should be assessed by the Division when acting on 401 certification requests. (205(2)(g)).

SUBSTANTIVE AMENDMENTS

In adopting this regulation, the Commission has had to interpret and resolve several important issues flowing from the language of section 401 of the federal act, and from the interplay of this language with section 104 of the State Water Quality Control Act. The operative federal section 401 language requires that any "activity" which results in "any discharge" [a section 401 activity] must receive a State certification that the discharge will comply with applicable provisions of the federal act. These "applicable provisions" include the federal requirement that states establish water quality classifications, standards, effluent limits, and control regulations to protect water quality. Section 104 of the State Act forbids such water quality rules when they (1) "impair rights to divert... and apply water to beneficial uses," (2) "result in material injury to water rights," or (3) "require minimum stream flows."

The first major issue resolved by the amended regulation is that a Colorado 401 certification may address the water quality effects of a section 401 activity during both the construction and operational phases of the activity. Both such aspects of a section 401 activity affect water quality. The definition of "401 certification" has been revised to assure that the State has authority to conduct the full 401 certification (2.4.3.1). Language has also been added to conditions 3 and 4 in section 2.4.5 , and to requirements 1 and 2 in section 2.4.6 , to allow these conditions and requirements to be applied to the operation and construction phase of section 401 projects.

The second important issue resolved by this regulation is the Commission's determination that section 401 of the federal act authorizes states to certify (1) that the "discharge" from the section 401 activity will comply with water quality requirements that may be imposed under state law, and (2) that changes in water quality caused by the activity producing the discharge will also so comply. Consistent with this interpretation of federal law, new condition 21 (of section 2.4.5) permits the Division to impose requirements on section 401 activities (1) to address "direct" water quality impacts resulting from the discharge, and (2) to address "indirect" water quality impacts resulting from the activity itself. Examples of the latter might include: changes in the character of a body of water caused by an impoundment, reservoir, or water diversion structure requiring a section 404 permit (and consequent state 401 certification). The Commission believes that section 401 of the federal act and sections 25-8-202 and 25-8-205 of the Colorado Water Quality Control Act authorize the impacts of these activities to be addressed to the extent they alter the biological, chemical, or physical integrity of the waters of the State. These impacts are indirectly caused by the discharge, in that they would not occur unless the discharge is authorized.

The third significant issue resolved by this regulation involves the relationship between the Colorado 401 certification process and section 25-8-104 of the State Act. The Commission interprets section 401 to require states to certify compliance only with those water quality rules that legally may be imposed under State law. Because section 104 helps define the range of permissible water quality rules under state law, the regulation provides that the Division may neither impose certification conditions inconsistent with section 104 (section 2.4.5.21), nor deny a certification where water quality impacts may be avoided only by imposing conditions inconsistent with section 104 (section 2.4.7).

The fourth key issue involves the Commission's interpretation of Section 104 in the context of State 401 certifications. Although the Commission recognizes that it is not the final judge of the precise meaning of the prohibitions found in section 104 (that being the responsibility of the legislature and the judiciary), it nevertheless believes it appropriate to provide guidance to the Division in ascertaining certification conditions and mitigation measures consistent with section 104. Therefore, while new condition 21 of section 2.4.5 permits the Division to require mitigation prior to certifying certain dams and diversions impacting water quality, condition 21 deems inconsistent with section 104 (and the lawful exercise of water rights) mitigation "requiring water to be released from impoundments or restricting the quantity of water withdrawn from the state water bodies..." Such conditions were thought either to require "minimum stream flows" or to "impair rights to divert water," both of which are prohibited by section 104.

To further assist the Division in interpreting section 104, and to ensure that the Division's judgment about the scope of section 104 is not entirely dependent on an interpretation provided by parties seeking 401 certification, the Division is required by section 2.4.8.6 to "consult with the State engineer and the Attorney General in determining whether a contemplated 401 condition or denial may be inconsistent with section 104..."

Specific Amendments

The definition of "401 certification" has been revised to assure that the State has authority to conduct the full 401 certification required for projects, including addressing the operational phase of projects.

The definition of compliance, section 2.4.3.4 , and the introductory language of section 2.4.5 , have been revised to clarify the Commission's intention that the Commission's Basic Standards, including water quality classifications and any applicable water quality control requirements (along with effluent limitations and water quality standards) be complied with in issuing 401 certifications. The phrase "other water quality control requirements" refers to control regulations or other duly adopted and enforceable regulations. The definition of "compliance or comply" has also been revised to clarify that while certain temporary exceedences of standards are allowed, there should be certain limits on the extent of such temporary impacts. This is necessary in order for water quality requirements to be applied meaningfully to the long-term operations of projects, as well as to the short-term construction phase to which the regulation originally applied.

Certain introductory language in section 2.4.5 has been revised since the list of potential conditions in that section no longer is limited solely to "management practices." The introduction to section 2.4.5 has also been amended to reflect the Commission's decision that certification conditions may be both technology-based, and output-based (i.e., based on a achieving a specified level of ambient water quality).

In order to provide reasonable assurance that water quality will be protected during the construction and operation of large, long-term, complex projects, the introduction of section 2.4.5 has been amended to permit the Division to add site-specific details to a condition impose under 2.4.5. New condition 22 also provides important additional flexibility in the section 401 certification process. There may be situations where there would be a lack of compliance with applicable effluent limitations, water quality classifications and standards, or other water quality control requirements, which cannot be avoided by imposition of conditions 1 through 21. In these circumstances, without condition 22 the Division would have no alternative but to deny certification, except where denial would be in conflict with section 25-8-104 of the Water Quality Control Act.

Several sections have been amended or added to ensure that the public, appropriate health departments, and affected water users are notified of the effects of the section 401 activity. Section 2.4.5.1 and 2.4.5.10 require the federal licensee or permittee needing certification to notify the above entities or (1) the project affecting water quality, and (2) the presence of any pollutants that may enter the watercourse as a result of the project. New section 2.4.6.7 permits the Division to provide a separate written analysis of its basis for certification when there is a high public interest in the project or where the Division in its discretion deems the separate analysis to be appropriate.

As a result of a stipulation agreed to by several parties to the hearing, several changes have been made to further the goal of coordination. Section 2.4.5.8 requires the permittee needing 401 certification to coordinate with downstream water purveyors to minimize impacts; on drinking water quality. New section 2.4.8.5 urges that the 401 certification process be coordinated with parallel review processes of other government agencies (e.g., a federal NEPA review), in order to minimize duplication of effort and delays in project approval.

Because of this same stipulation, section 2.4.5.9 has been amended so that the Division may impose conditions to prevent toxic pollutants from entering water courses.

The Commission's antidegradation rule is reflected in several amendments to the Commission's 401 certification regulation. The definition of "compliance or comply" in section 2.4.3.4 has been amended to reflect the limiting role played by the antidegradation rule when a section 401 activity threatens to degrade high quality waters. Amended section 2.4.8.2 extends the time for the Division to act on 401 certification requests if an antidegradation review is required, in order to provide adequate time for public participation in such a review.

The intent of the language added to the end of section 2.4.7 is to assure that potential certification denials are handled in a manner consistent with section 25-8-104 of the State Act. This recognizes that in some circumstances a project may have water quality impacts that could be mitigated only be being inconsistent with section 25-8-104, and provides that due to section 25-8-104, the 401 certification will not be denied in such circumstances. This result is acceptable according to the language and intent of section 401 of the federal act, which requires section 401 activities to comply only with State water quality laws that may be imposed under State law, not those forbidden under state law (i.e., by section 104 of the State Act). The Division shall identify water quality impacts for which mitigation is not being required by the State, due to the State policy established in section 25-8-104, and recognize that this result conforms to State policy.

LIST OF PARTY PARTICIPANTS TO THE 401 CERTIFICATION PUBLIC RULEMAKING HEARING