5 Colo. Code Regs. § 1002-38.22
The provisions of sections 25-8-202(1)(b), (f) and (2); 25-8-204; and 25-8-207, C.R.S. (1982 & 1985 Supp.), provide the specific statutory authority for the regulatory review conducted by the Commission in this proceeding.
Section 25-8-207, C.R.S. (1985 Supp.), was added to the Colorado Water Quality Control Act, effective June 4, 1985. Under section 25-8-207, the Commission, upon its own motion or upon petition, is required to review any previously adopted classification or standard for consistency with section 25-8-207 or the policies set forth is sections 25-8-102 and 25-8-104. Further, the Commission is required to make a finding of inconsistency where the classifications or standards for aquatic life are more stringent than necessary (as more fully described in section 25-8-207(1)(a)) or where any classifications or standards were adopted based upon material assumptions that were in error or no longer apply. When an inconsistency is found, the Commission shall declare the inconsistent classifications or standards void ab initio and simultaneously establish appropriate classifications or standards.
STATEMENT OF BASIS AND PURPOSE:
From March 1983 through September 1984, surveys of water quality, aquatic macroninvertebrates and fish were conducted on Ralston Creek, Segment 17 of the Clear Creek, South Platte River Basin. These surveys were designed by Robert G. Otto, Ph.D., and independent consultant for Cotter Corporation. They were designed specifically with regard to statutory requirements for the Commission to classify state waters and promulgate water quality standards. The studies were conducted by Dr. Otto in conjunction with the U.S. Geological Survey (with respect to the water quality survey) and with the assistance of the Colorado Division of Wildlife (with respect to the fishery survey). The results of these surveys were submitted to the Commission at its July 1, 1985 meeting.
In establishing the proposed revision to the numeric standards, various computational and statistical methodologies have been utilized to allow for the best definition of ambient quality in the stream and to provide for reliable standards of ambient quality for Ralston Creek. The use of varying computational techniques acknowledges the natural variations among the constituents in Ralston Creek and ensures that an appropriate numeric value is assigned for each constituent.
With regard to Cotter Corporation's proposals, the Commission took the following actions for the following reasons.
Ammonia (NH3 mg/l, unionized). Prior to the commencement of the public hearing, Cotter withdrew its proposed change for unionized ammonia because of misinterpretation of the data supplied by the U.S.G.S. Therefore, the Commission did not change the existing standard for unionized ammonia.
Cyanide (free) and Chromium (tri and hex). Prior to the public hearing Cotter entered into a stipulation with the cities of Arvada and Westminster whereby Cotter withdrew its proposal to delete the standards for cyanide (free) and chromium (tri and hex). Evidence presented at the hearing also indicates that Cotter is not discharging cyanide or chromium and therefore retaining the existing standards will have no effect on Cotter. Therefore, the Commission has retained the standards for chromium and cyanide.
Temperature. The Commission declined to adopt Cotter's proposed standard for temperature and voted to retain the existing standard because the standard is not per se enforceable and because the standard recognizes that there will be exceedences of the temperature limitation as borne out by Cotter's evidence.
Dissolved oxygen. The Commission voted to retain the existing dissolved oxygen standard because the evidence indicates that spawning does in fact occur in the segment (although perhaps on a limited basis) and because the evidence suggests that retaining the dissolved oxygen standard would not pose a hardship to Cotter Corporation. Since the existing level of dissolved oxygen is necessary to protect what spawning does occur in Ralston Creek and since there has been no demonstration of a need to revise the standard, the Commission retains the existing dissolved oxygen standard.
The Commission adopts the following changes as proposed by Cotter based upon the finding that the previous standards are inconsistent with section 25-8-207 and the policies set forth in sections 25-8-102 and 25-8-104. The Commission therefore finds that the prior standards are void ab initio and that the following standards are appropriate because they more accurately reflect ambient water quality and will adequately protect existing uses:
Copper (Cu) .005 mg/l soluble
Lead (pb) .005 mg/l with a seasonal qualifier of .025 mg/l during periods when stream flow exceeds 50 cfs.
Iron (Fe, soluble) .3 mg/l with a seasonal qualifier of 0.5 mg/l in May and June.
Iron (Fe, total) 1.0 mg/l with a seasonal qualifier excluding the spring high flow period that exceeds 50 cfs.
Mercury (Hg). Due to the lack of data concerning mercury, the source of mercury in Ralston Creek, and its potential for bioaccumulation, the Commission retained the existing mercury standard of 0.7 micrograms per litre.
However, in order to allow an opportunity to collect more data, the Commission adopted a temporary modification of 0.13 micrograms per litre for mercury, which shall expire two years from the effective date of these regulations.
FISCAL IMPACT STATEMENT:
There was no evidence presented at the hearing that suggests there will be any fiscal or economic impact as a result of the standards adopted by the Commission. The costs, if any, of the standards, will be incurred by Cotter who proposed the standards adopted by the Commission and who discharges pursuant to a permit into Ralston Creek.
Although there are no monetary benefits specifically identified with the adopted standards, the standards are designed to protect existing uses of Ralston Creek which Cotter estimates to be substantial.
Amended: September 18, 1986, Swede Gulch, Segments 4a,b, & c of Bear Creek
Effective: October 30, 1986
5 CCR 1002-38.22