5 Colo. Code Regs. § 1002-21.34
The provisions of sections 25-8-202 and 401 provide the specific statutory authority for adoption of these regulatory amendments. The Commission also adopted the following statement of basis and purpose.
BASIS AND PURPOSE
In past years changes have been made to state statutes and regulations regarding appeals of certain Division determinations. The Commission has amended the procedural rules to clarify which appeals should go to the Commission, and which should go the Division.
Colorado's Water Quality Control Act (the Act) provides that the Commission shall hear appeals of "all determinations by the Division except those determinations dealing with surface water discharge permits or portions thereof." § 25-8-202(1)(k), C.R.S. Section 603 of the Act provides that the Division shall provide an opportunity for an adjudicatory hearing regarding appeals of notices of alleged violation for violations of orders, permits or control regulations. Section 608 of the Act provides that the Division's final decision regarding penalties may be appealed to the Commission.
The Commission has amended sections 21.4 , 21.11 and 21.12 in order to clarify that the Commission does not hear appeals of Division determinations that deal with surface water permits or portions thereof.
The Commission has also amended section 21.4 to clarify that appeals relating to discharging without a permit are to be heard by the Commission. Such violations and penalties are not determinations "dealing with surface water discharge permits or portions thereof," and thus should properly be heard by the Commission.
The Chatfield Reservoir Control Regulation, Regulation #73, was previously amended to include procedures for appealing final Division determinations on trades and other changes in point source phosphorus allocations to the Commission. For consistency, the Commission adopted new language in section 21.4 to address such appeals. The language is broad enough to include other reservoir control regulations which may later be amended to specifically provide for such appeals.
The Commission has also amended section 21.11 regarding Commission hearings on final Division determinations regarding notices of alleged violations. The Commission has clarified that such hearings are appellate hearings limited to record review. A party is not entitled to two full agency adjudicatory hearings under section 105 of the Administrative Procedures Act (one before the Division, and one before the Commission), prior to seeking judicial review.
PARTIES TO THE RULEMAKING HEARING
5 CCR 1002-21.34