5 Colo. Code Regs. § 1002-38.23
This rule is adopted pursuant to the provisions of the Colorado Water Quality Act, Colo. Rev. Stat. 25-8-203, 204, and 207, and the Commission's regulations, 5 Colo. Code Reg. 1002-8.
STATEMENT OF BASIS AND PURPOSE:
By this Rule, the Commission creates two new segments in the Bear Creek Basin as follows:
Segment 4b: Swede Gulch, including all ponds, lakes and reservoirs, from its headwaters to its confluence with Kerr Gulch.
Segment 4c: Swede Gulch, including all ponds, lakes, and reservoirs, from its confluence with Kerr Gulch to its confluence with Bear Creek.
In addition, the definition of the current Segment 4 of Bear Creek Basin is modified to read as follows:
"4a. All tributaries to Bear Creek, including all lakes and reservoirs, from a point immediately below the confluence with Cub Creek to the confluence with the South Platte River, except for specific listing in Segments 4b, 4c, 5 and 6."
The classifications applicable to Segments 4b and 4c are as follows:
In order to protect the aquatic life found in Swede Gulch, the Commission's numeric standards for the Aquatic Life protection, with metals values as appropriate for water with a hardness between 100 and 200 mg/l, are adopted for Segments 4b and 4c. A dissolved oxygen standard of 6.0 mg/l shall apply to Segment 4b, and a dissolved oxygen standard of 7.0 mg/l (during the spawning season) shall apply to Segment 4c.
In order to protect the drinking water supply uses of Swede Gulch waters, the combined quantity of nitrate and nitrite for both segments 4b and 4c shall not exceed 10 mg/l. Additionally, the numeric standards for chromium (trivalent), selenium, iron, and manganese, derived from the Class 1 - Domestic Water Supply classification currently applicable to Segment 4 of Bear Creek Basin, are adopted for Segments 4b and 4c.
In order to protect the primary contact recreational uses of Swede Gulch, a water quality standard of 200 fecal coliforms/100 ml is adopted for Segments 4b and 4c.
This rulemaking proceeding under Colo. Rev. Stat. 25-8-207 was initiated by a petition under Colo. Rev. Stat. 25-8-207 submitted by a group of homeowners who reside in Swede Gulch (the "Petitioners"). These Petitioners claimed, and the Commission finds, that the existing classifications applicable to Swede Gulch were in error, due to a lack of specific information on Swede Gulch in the limited rulemaking proceedings and failed to take into account existing and potential uses of Swede Gulch waters. At the public hearing on this Petition, evidence was introduced by the Petitioners and their expert witnesses, and the Colorado Division of Wildlife, demonstrating the following facts:
This rule has been adopted in order to fulfill the Commission's statutory and regulatory obligations which include (a) the mandate that present and potential beneficial uses of state waters be protected; (b) the mandate that waters should be classified for the highest uses attainable; and (c) the mandate that no further water quality degradation should be allowed which would interfere with or become injurious to existing uses.
The Commission finds that the waters of Swede Gulch provide habitat for cold water biota, including trout, and that the waters of Swede Gulch do not normally exceed 20°C. Although the ponds and lower portion of Swede Gulch constitute permanent water bodies, the aquatic life in portions of the Swede Gulch stream channel is limited by flow and streambed characteristics, rather than by water quality. For this reason, the Commission has designated both upper and lower segments of Swede Gulch as Class 2 - Cold Water Aquatic Life.
Based on the testimony of the Petitioners, the Petitioner's expert witnesses, and the Colorado Division of Wildlife, the Commission finds that the numeric standards adopted for the protection of cold water aquatic life (5 Colo. Cod Reg. 1002-8, Tables I, II, and III) are necessary to protect the aquatic life currently found in Swede Gulch. Each of these standards (together with standards applicable to the other use classifications adopted by this rule), is listed in the attached Table.
With respect to dissolved oxygen, the Commission finds that spawning occurs in lower Swede Gulch and accordingly adopts a dissolved oxygen standard of 7.0 mg/l during the spawning season in order to protect spawning activity for segment 4c. The Commission is not convinced that spawning presently occurs in upper Swede Gulch and therefore adopts the less stringent dissolved oxygen standard of 6.0 mg/l for Segment 4b. If spawning is later demonstrated to occur in upper Swede Gulch, the Petitioners may seek amendment of this standard.
Based on the extensive testimony of the Petitioners and other local residents, the Commission finds that primary contact recreational activity has occured on portions of Swede Gulch from its headwaters to its confluence with Bear Creek and that a Recreation Class 1 - Primary Contact classification is appropriate for both upper and lower segments of Swede Gulch.
In order to maintain consistency with similar classifications elsewhere in the state, the Commission decided not to impose a seasonal qualification of the recreation classification.
The Commission finds that the numeric table value water quality standards for Primary Contact Recreation are necessary to protect the current recreational uses in Swede Gulch. The Commission finds that the current fecal coliform standard (200/100 ml) is sufficient to protect people engaging in primary contact recreation. The Commission therefore rejects the Petitioners' request for a more stringent fecal coliform standard of 2.2/100 ml.
The Commission recognizes, however, that the Petitioners have raised certain valid concerns about the appropriateness of the current Primary Contact Recreation fecal coliform standard, and the Commission hereby states its intention to consider the Petitioner's proposed fecal coliform standard on a state-wide basis during its next scheduled review of the basic water quality standards.
The Commission finds that the domestic water supply and agriculture classifications currently applicable to Swede Gulch are correct and should remain in place. The Petitioners' request for a total ammonia standard of 0.5 mg/l (associated with the water supply classification) is rejected. This standard is applied only to waters subject to direct intake for municipal drinking water use. There is no such direct municipal use of the surface waters in Swede Gulch; therefore, the total ammonia standard would be inappropriate. The Commission finds that a standard for nitrate of 10 mg/l will protect the waters of Swede Gulch for domestic water supply purposes, provided the combined quantity of nitrate and nitrite does not exceed 10 mg/l. Additionally, the numeric standards for chromium (trivalent), selenium, iron, and manganese, derived from the Class 1 -Domestic Water Supply classification currently applicable to Segment 4 of the Bear Creek Basin, are adopted for Segments 4b and 4c.
The Commission finds that the adoption of protective classifications and standards for Swede Gulch through the present rulemaking may be insufficient, in itself, to fully protect the current uses of Swede Gulch waters. The Commission will request that the Denver Regional Council of Governments study present and potential sources of non-point pollution in the Swede Gulch drainage, and make recommendations to the Commission for a strategy to mitigate such pollution. The Division or the Commission will also review, at the appropriate time, the availability of alternate points of treatment for sewage generated in Swede Gulch, including specifically the feasibility of treating such sewage at the existing Kittredge wastewater treatment plant.
FISCAL IMPACT STATEMENT
The Commission finds that these use classifications and water quality standards are economically reasonable. During the public hearing on June 2 and 3, the Commission solicited evidence of economic impacts. While the present rule might increase the cost of wastewater treatment for future dischargers in Swede Gulch, no evidence of specific economic impacts was introduced by the sole opponent to the proposed rule, El Rancho Metropolitan District. (El Rancho currently has pending before the Water Quality Control Division an application for the location of a wastewater treatment plant in the headwaters of Swede Gulch.)
On the other hand, the Petitioners and other witnesses before the Commission testified that they believe the degradation of existing water quality in Swede Gulch would have significant adverse impacts on the value of their property in Swede Gulch. Degradation of Swede Gulch waters could also mean the loss of valuable trout spawning and nursery habitat, and the loss of the established fisheries in the ponds in the Gulch.
The Commission concludes that the rule may impose additional economic burdens on dischargers in Swede Gulch, but these burdens were not made the subject of specific testimony. The Commission concludes that these burdens, if any, would be economically reasonable in light of the significant economic benefits accruing to the residents of Swede Gulch and the citizens of Colorado.
5 CCR 1002-38.23