5 Colo. Code Regs. § 1002-38.84
Pursuant to sections 25-8-208, 25-8-402(5), and 24-4-103(6), C.R.S., the Commission adopted a revision to Regulation #38, Classifications and Numeric Standards for South Platte River Basin, Laramie River Basin Republican River Basin, Smoky Hill River Basin on May 13, 2013.
The United States Fish and Wildlife Service, Rocky Mountain Arsenal National Wildlife Refuge ("Refuge") proposed to split Upper South Plate segment 22, and create a new segment, Upper South Platte River segment 22b, that encompasses the lakes and reservoirs on the Refuge property. These lakes are known as Lake Mary, Lake Ladora, Upper Derby Lake, and Lower Derby Lake. The new segment will retain the Aquatic Life Warm 2, Recreation E, and Agriculture uses and standards, but the Water Supply use classification will be removed. The Refuge provided evidence to the Commission that there is no water supply use from the lakes and that a water supply use is precluded by the 1989 Federal Facilities Agreement for the Arsenal. In addition, consumption of fish from these leakes is precluded by this same Agreement and by 50 C.F.R. § 32.25.
In 1998, as a matter of public interest, the United States entered into an agreement to trade its water rights delivered by the Highline Canal in exchange for Denver Water reclaimed water to be delivered by September 2011. This line would deliver much of the water needed by the Refuge. In the interim, Highline water was supposed to continue. This agreement was amended to substitute potable water for Highline water, which allowed for the Highline Canal to be abandoned within the Refuge. This temporary agreement expires on September 30, 2013. Due to drought conditions, it is in the public interest to maximize the conservation of potable water supplies in the Denver Metropolitan area. The preferred alternate for the Refuge is reclaimed water delivered by Denver Water. For all intents and purposes, the reclaimed water is available for delivery right now via a pipeline that was completed in 2012. This emergency rulemaking will expedite the process for the U.S. EPA to issue an NPDES permit for the discharge of the reclaimed water to the lakes within the Refuge where it can be used for irrigation. In addition, the inability of the Refuge to utilize the reclaimed water line is negatively impacting Denver Water's ability to implement its reclaimed water system in northeast Denver.
The factors that necessitated an emergency rulemaking are:
These revisions shall be effective May 13, 2013 and shall remain in effect until the effective date of permanent regulations, or one year, whichever comes first.
5 CCR 1002-38.84