5 Colo. Code Regs. § 1002-31.28
The provisions of 25-8-202(1)(a), (b) and (2); 25-8-203; 25-8-204; 25-8-209 and 25-8-402 C.R.S. provide the specific statutory authority for adoption of these regulatory amendments. The Commission also adopted, in compliance with 24-4-103(4), C.R.S., the following statement of basis and purpose.
Basis and Purpose:
House Bill 92-1200 was adopted by the 1992 Colorado Legislature. This act establishes a new section 25-8-209 in the Colorado Water Quality Control Act, concerning water quality designations. The purpose of this rulemaking hearing is to conform the Commission's regulatory provisions regarding water quality designations with these new statutory provisions.
The Basic Standards regulation previously provided for three water quality designations that could be applied to state surface waters in appropriate circumstances: high quality 1, high quality 2, and use-protected. H.B. 92-1200 does not require that any changes be made to the existing use-protected criteria. Consequently, only a few minor changes necessary to conform the use-protected provisions with other portions of the regulation were made.
In accordance with new section 25-8-209 of the Act, section 3.1.8 of the Basic Standards regulation has been revised to delete the high quality 2 waters designation. This revision does not change which waters will be subject to antidegradation review. Barring new information indicating that a use-protected or outstanding waters designation is appropriate, all waters previously designated high quality 2 will be undesignated but still subject to antidegradation review once these revisions are fully implemented in the basin-specific hearings. Until specifically revised in the triennial review process or in hearings held pursuant to section 25-8-207 of the act, all existing high quality class 2 designated segments are to be considered reviewable water subject to the antidegradation review provisions of 3.1.8(3).
The Commission is hopeful that the deletion of the high quality 2 designation will eliminate the risk that other agencies might misunderstand and misapply the high quality 2 designation. This designation was intended to denote waters for which an antidegradation review is required prior to approval of activities with new or increased water quality impacts. Concern was expressed by a number of entities that this label was likely to be used by other agencies for purposes broader than requiring antidegradation reviews, and in a manner that may unduly restrict beneficial economic activities. The Commission believes that the revisions being adopted to conform with the provisions of H.B. 92-1200 will still result in protection of the quality of Colorado's water resources in a manner fully consistent with the state and federal acts, while eliminating this risk of misuse of the high quality 2 designation. To further safeguard against misuse, the Commission included the statutory language prohibiting misinterpretation in 3.1.8(1)(D).
Section 25-8-209 essentially changes the label for those waters for which no degradation is allowed from "high quality 1" waters to "outstanding waters" . To date, the Commission has designated only seven specific surface water segments high quality 1. Each of these segments automatically become outstanding waters, pursuant to section 25-8-209(3)(b).
The Commission is also directed to promulgate criteria governing these designations. In addition, this section now sets forth certain determinations that must be made by the Commission before an outstanding waters designation is applied to specific waters. The provisions adopted by the Commission with respect to each of these determinations are addressed below.
In addition to the criteria for the three determinations, the Commission has adopted a proviso that no outstanding waters designation shall be adopted for specific waters if the Commission determines that such designation would be inconsistent with the provisions of section 25-8-102 or 25-8-104, C.R.S. This proviso is consistent with the requirements of new section 25-8-209(2). The application of an outstanding waters designation is a powerful tool. It can help assure protection of some of our state's outstanding natural resources, the preservation of which will be beneficial to Colorado's future environmental and economic health. At the same time, the restrictions associated with this designation are extreme, and it is essential that it be applied with discretion so as to not unduly restrict future development in Colorado. Application of this proviso will require case-by-case judgment, balancing considerations such as those listed above. The Commission does not believe that it is possible to enumerate in advance all of the circumstances where this language may be applicable.
The new statutory language provides that the Commission must determine that the quality of any waters designated "outstanding waters" is better than "fishable, swimmable" , based upon indicator parameters identified by the Commission. The Commission has selected 12 indicator parameters for this test. This list of parameters is the same as used in the previous high quality 2 water quality test, except that iron and mercury have been deleted and un-ionized ammonia and nitrate have been added.
Based on the professional judgment of the Water Quality Control Division staff, iron has not been as good an indicator of water quality as other metals, due to questions regarding its toxicity to aquatic life. Mercury has been deleted because questions regarding appropriate detection limits have unduly complicated its use as an indicator parameter. Moreover, it is the judgment of the Division and the Commission that the remaining metals parameters provide an adequate indication of water quality with respect to this category of inorganics. Un-ionized ammonia and nitrate have been added based upon recommendations that the types of indicator parameters used be broadened, particularly to include nutrients, and in the case of nitrate to indicate the suitability of the water for domestic water use.
The Commission has again considered the issue of whether minimum data requirements for this test ought to be included in the regulation. The Commission has chosen as a matter of policy to require that water quality determinations be based on "adequate representative data" , without attempting to quantify that requirement. The Commission continues to believe that case-by-case judgment considering all of the available information regarding a particular segment (e.g. upstream and downstream quality, surrounding land use, presence or absence of point sources) must be considered to determine what is adequate data in a particular circumstance. However, the Commission has added a new requirement that there be at least some data for each of the 12 indicator parameters from samples taken within the segment in question. This does not mean, e.g. that data is required from all tributaries within a segment, but some data from within the segment must be available for all 12 parameters. The one exception provided is where the remote location of a segment makes it impractical to collect and analyze fecal coliform data within the required holding time.
The City of Colorado Springs, a party to the hearing, requested that all data used to determine designations be "scientifically reliable." The Commission rejected that request citing concern over likely confusion in interpreting such a requirement and noting that it always has and will continue to expect all data used to support standards or designation proposals to be scientifically reliable.
The second determination to be made by the Commission is that the waters in question constitute an outstanding natural resource. The Commission has established two bases for making this determination. First, this test will be considered to be met whenever waters are a significant attribute of certain categories of outstanding state fishing waters (Gold Medal Waters) or federal lands that have been given one of the types of protected status listed. The Commission believes that the presence of these federal designations is evidence that the waters are part of an outstanding natural resource. The inclusion in the regulation of the list of these federally designated lands is not intended to indicate that waters in other areas, such as lands with special state designations, do not warrant the outstanding waters designation. The application of the designation to other areas is addressed in subsection 3.1.8 of the regulation, and discussed in the following paragraph.
The second basis established for this determination is where the Commission finds that the waters in question have exceptional recreational or ecological significance, and that they have not been modified by human activities in a manner that substantially detracts from their value as a natural resource. The Commission believes that there are outstanding natural resources in Colorado that have not received one of the federal land use designations referenced above. Application of this provision will require case-by-case judgment, based upon all of the available facts. From a review of the available information, including the approaches taken in other states, the Commission has been unable to come up with a more concrete or specific formulation of this concept. However, the Commission intends that for this test to apply the waters in question should have the same type and degree of attributes that in other circumstances have led to adoption of one of the federal land use categories listed.
The language in the last half of the first sentence of subparagraph (B) is intended to assure that the outstanding waters designation is not applied to waters in an area whose natural resources values have already been significantly degraded by human impacts. The Commission believes as a matter of policy that this designation should be reserved for substantially unimpacted areas.
A number of parties requested that the Commission insert language in subsection B to help assure that outstanding waters designations are not applied in a manner inconsistent with Section 25-8-104. Particular language proposed would have required approval from the owner and operator before waters in a reservoir could be designated "outstanding." Disapproval could only be based upon evidence that the additional water quality protection provided by the outstanding waters designation would have caused or resulted in material injury to an existing water right. The Commission declined to add the proposed language because it believes it is inappropriate and potentially confusing to single out one particular type of water right for what may appear to be special protection. The Commission understands the mandate of Section 25-8-104 to apply to all water rights. It also believes the protection afforded by Section 25-8-104 does not need to be placed in regulation to be applicable. Whenever any state water is proposed to be designated outstanding, persons with water rights associated with such water may bring evidence to the Commission of how the proposed designation will affect their water rights. Any information the commission receives will be considered in determining the appropriate designation, consistent with the requirements of Section 25-8-104.
The third determination required by section 25-8-209 for the application of an outstanding waters designation is that protection over and above (1) classifications and standards and (2) antidegradation review is required. The Commission believes that this determination essentially requires a policy judgment that protection of the waters in question is important enough to prohibit any degradation. The Commission recognizes that this determination can have major consequences for potential future development in the area in question, due to the "no degradation" restriction associated with the outstanding waters designation. Therefore, this determination should be made only after full consideration of the appropriateness of this result in the area in question.
Some have suggested that this provision means that the outstanding waters designation can not be applied to waters that already have some other form of protection, such as wilderness designation-i.e., that in such circumstances the Commission designation is not "required" to assure protection of the water quality. The Commission disagrees with this interpretation of the statutory language. Such an interpretation would prevent application of the outstanding waters designation to waters that may be among those most deserving of protection, as already indicated by other formal designations. The Commission understands the statutory language to mean that the Commission must determine that the "no degradation" result is required to achieve appropriate protection of the water resources in question. The Commission does not understand this language to require a judgment on its part regarding the adequacy of controls resulting from, e.g., federal land use designations to achieve this goal. Moreover, the Commission believes that the contrary interpretation described above would be directly inconsistent with the fact that the Legislature "grandfathered" all existing high quality 1 designations-each of which are for waters located in wilderness areas or Rocky Mountain National Park-as outstanding waters designations.
Other Issues:
The Commission considered whether to include in the regulation further provisions addressing the appropriate implementation of the "no degradation" restriction associated with the outstanding waters designation. The Commission has decided not to do so, in large part because there appears to be no practical need to do so at this time. To date, the high quality 1/outstanding waters designation has been applied only in areas where there are no activities likely to result in measurable impacts to the waters in question. The Commission does not believe that this situation is likely to change substantially in the near future.
At the same time, the Commission notes that even EPA has recognized some flexibility in the application of this highest category of protection. For example, EPA's Water Quality Standards Handbook provides that "States may allow some limited activities which result in temporary and short-term changes in the water quality of ONRW [EPA's parallel to "outstanding water "]". EPA Handbook at 2-14. The Commission believes that similar flexibility is appropriate in Colorado should future implementation issues arise.
Two parties to the hearing asked that other portions of the regulation not specifically provided for in statute be eliminated or significantly revised in this rulemaking. The Commission declined to make such changes to the antidegradation portion of the regulation primarily because this proposal was a direct result of HB 92-1200 which was limited in scope, and the hearing record to support modifications to rule beyond those necessitated by the statute was not extensive.
Finally, the Commission decided not to repeat the statutory limitations on Section 401 certifications of 404 permits (25-8-302) in the section of this regulation addressing applicability (3.1.8(3)(a)) because such repetition is unnecessary and can cause confusion.
PARTIES TO THE RULEMAKING HEARING
5 CCR 1002-31.28