5 Colo. Code Regs. § 1002-32.42
The provisions of C.R.S. 25-8-202(1)(a), (b) and (2); 25-8-203; 25-8-204; and 25-8-402; 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
A Colorado Springs Utilities proposal to adopt a selenium temporary modification for Fountain Creek segment 6 was initially noticed as part of this rulemaking, but was withdrawn prior to the hearing.
Corrections to standards for Upper Arkansas Segments 2b and 2c: The Commission corrected errors in segments 2b and 2c of the Upper Arkansas River. In both segments, the chronic numeric standard for cadmium was revised to correct an error that resulted from Commission action during the June 2007 rulemaking hearing for the Arkansas River.
Antidegradation Designation on Upper Arkansas River Segment 26 and Fountain Creek Segments 2a, 2b, 4, and 6: After final action by the Commission in the July 2007 rulemaking (adopted August 2007) the Use-Protected designations of Fountain Creek segments 2a, 2b, 4 and 6 and Upper Arkansas segment 26 were removed. These changes were made without a full discussion and consideration of the changes during the rulemaking process. The Commission held this rulemaking hearing to reconsider the antidegradation designation of these segments.
After considering the evidence and testimony the Commission took the following action:
Upper Arkansas segment 26: The segment remains undesignated because available representative data shows that all 12 of the 12 indicator parameters meet the Table Value test and this segment is not included on the current 303(d) list (Regulation # 93). The Commission also determined that this segment does not qualify for the other two bases in section 31.8 for use-protected designation.
Fountain Creek segment 2a: The segment remains undesignated because available representative data shows that 10 of the 12 indicator parameters meet the Table Value test and the segment is included on the current 303(d) list (Regulation No 93) for only one parameter (E coli). As addressed further below, the Commission also determined that this segment does not qualify for the other two bases in section 31.8 for use-protected designation. The segment is not effluent-dominated. In addition, the evidence does not demonstrate substantial natural or irreversible human-induced pollution for parameters other than those included on the list of indicator parameters. Therefore, the Commission determined that these waters should have the extra protection provided by an antidegradation review.
Fountain Creek segment 2b: The segment remains undesignated because available representative data shows that 10 of the 12 parameters meet the Table Value test and the segment is included on the current 303(d) list (Regulation No 93) for only one parameter (selenium). As addressed further below, the Commission also determined that this segment does not qualify for the other two bases in section 31.8 for use-protected designation. The segment is not effluent-dominated. In addition, the evidence does not demonstrate substantial natural or irreversible human-induced pollution for parameters other than those included on the list of indicator parameters. Therefore, the Commission determined that these waters should have the extra protection provided by an antidegradation review.
Fountain Creek segment 4: The Use Protected designation was reinstated. Available representative data shows that only 9 of the 12 indicator parameters meet the Table Value test.
Fountain Creek segment 6: The segment remains undesignated because available representative data shows that 10 of the 12 parameters meet the Table Value test and the segment is included on the current 303(d) list (Regulation No 93) for only one parameter (selenium). As addressed further below, the Commission also determined that this segment does not qualify for the other two bases in section 31.8 for use-protected designation. The segment is not effluent-dominated. In addition, the evidence does not demonstrate substantial natural or irreversible human-induced pollution for parameters other than those included on the list of indicator parameters. Therefore, the Commission determined that these waters should have the extra protection provided by an antidegradation review.
Several parties asserted that segments 2a, 2b and 6 should be designated use-protected because they are effluent-dominated. The Commission disagrees. The evidence presented in the hearing shows that these segments do not meet the numerical test for effluent-dominance set forth in Regulation #31, the Basic Standards and Methodologies for Surface Water. Except at one station in segment 2a (one of five locations investigated in a 40-mile long segment), for these segments it is not true that "greater than 50 percent of the flow consists of treated wastewater for at least 183 days annually, for eight out of the last ten years". The alternative approach to determining effluent dominance advocated by the parties to this hearing is inconsistent with the regulatory definition. The narrative portion of the definition provides a general statement of the concept, but the numerical formulation in the parenthetical of the definition was developed to establish a clear test to use in applying this concept.
Several parties also argued that segments 2a, 2b and 6 have elevated concentrations of E. coli, selenium, iron and sulfate, as well as impacts from sedimentation, and that therefore they should be designated use-protected based on section 31.8 , which provides that the Commission may apply a use-protected designation where it "determines that due to the presence of substantial natural or irreversible human-induced pollution" the quality of the waters in question should not be considered better than necessary to support aquatic life class 1 and/or recreation class P uses.
Unlike the "12 indicator parameter" test and the "effluent dominated" test, this "substantial pollution" provision does not set forth a specific quantified test for determining whether a use-protected designation is appropriate. Rather, this test has been formulated in a manner to allow the Commission to assess the overall circumstances related to the water quality of a segment as a whole in making the policy determination whether the extra layer of protection provided by antidegradation review is appropriate.
The Commission believes that in applying this test it is appropriate to consider multiple lines of information regarding the chemical, physical and biological condition of the segments in determining whether existing pollution should be considered substantial, and whether it should be considered natural or irreversible. Although there was evidence presented that some portion of the existing pollution is likely natural or irreversible, at this time it would be premature to conclude that substantial improvement is not possible.
In addition, even if it were accepted that existing pollution is not reversible, the evidence presented regarding aquatic life diversity shows that the aquatic life present is not unlike that expected for sandy bottom plains streams. The elevated levels present for a few parameters do not appear to have had a major adverse impact on the aquatic life present.
Considering all of the above site-specific circumstances, the Commission has decided as a matter of policy that it would be inappropriate to apply a use-protected designation to these segments at this time.
The Commission notes that concern was also expressed regarding the potential economic consequences to dischargers to these segments if they are "reviewable", rather than use-protected. However, requiring that an antidegradation review occur prior to allowing future new or expanded discharges that would use up some or all of the current assimilative capacity of these segments does not mean that costly advanced treatment will be required for these discharges. Indeed, the purpose of an antidegradation review is to determine whether there are available alternatives that are economically, environmentally and technologically reasonable, in accordance with the provision of subsection 31.8 . If it is determined that such alternatives are not available, degradation to the level of water quality standards is allowed.
Several parties in this rulemaking presented legal arguments regarding the burden of proof for the antidegradation designations for Fountain Creek segments 2a, 2b, and 6. The Commission based its decision regarding the appropriate antidegradation designations for these segments on all of the evidence in the record and the policy considerations within its discretion. The Commission's decision regarding antidegradation designations was not based upon who has the burden of proof.
PARTIES TO THE RULEMAKING
5 CCR 1002-32.42