5 Colo. Code Regs. § 1002-42.11
The provisions of C.R.S. 25-8-202(1) (a, (b) (2) and (7); and 25-8-203; and 25-8-204 provide the specific statutory authority for adoption of these regulatory provisions. The Commission has also adopted, in compliance with C.R.S. 24-4-103(4), the following statement of basis and purpose.
BASIS AND PURPOSE
The goal of the Water Quality Control Commission is to prevent ground water contamination and to protect existing uses while providing for maximum potential future beneficial uses of ground water resources. The Commission has identified ground water quality protection as one of its major priorities. Over the past 18 months the Division developed a proposal for establishing classifications and standards from ground water on a broad regional basis, based on a number of discussions with the Commission about the advantages and disadvantages of various approaches, ranging from conducting multiple site-specific rulemaking hearings, to a single hearing to establish classifications and standards statewide.
The goal of comprehensive ground water quality protection is viewed as a long-term objective. There are many local, state, and federal programs currently involved in activities aimed at preventing ground water contamination. Some programs are concerned with preventing or eliminating sources of ground water pollution and a few are providing for remediation of existing contamination. Senate Bill 181 created a framework wherein the Commission is solely responsible for establishing classifications and standards, and certain implementing agencies are responsible for implementing them through their own programs. Senate Bill 126 follows this model with respect to the Department of Agriculture and its regulation of the use of agricultural chemicals. The establishment of classifications and standards by the Commission has been viewed by some as a prerequisite for implementing agencies to begin fully carrying out their ground water protection responsibilities. Therefore, the Commission has felt the need to move forward expeditiously in this area.
The May ground water quality classification and standard-setting hearing revealed several concerns with the broad regional approach suggested in the Division's proposal. The foremost concern was with the blunt results of regional classifications for parties with complex site-specific issues. This concern was strongest where existing quality does not meet the standards associated with the proposed classifications. However, the Division, guided by the Basic Standards for Ground Water, focused upon the evidence of widespread use of potential use of the ground water for both domestic and agricultural purposes as the basis for establishing regional classifications and standards.
Since the hearing, the Division and Commission have attempted to explore a full range of options to address the concerns raised by parties with respect to the existing proposal, while keeping the long-term goal of ground water quality protection in focus. Although the Commission believes that the proposal addressed at the hearing remains viable, it also believes that the alternative set forth here constitutes an important and positive step forward in Colorado ground water quality protection efforts. The new alternative proposal provides an interim narrative standard for protection of existing ground water quality on a regional basis, to be supplemented in the near term with site-specific rulemaking hearings to adopt standards and classifications for wellhead protection areas of public water supply systems and for other areas of significant interest.
This approach will allow implementation efforts of other agencies to proceed, based on Commission-adopted standards. In addition, it envisions a major new effort to coordinate and integrate existing ground water quality data acquisition efforts and to expand those efforts as necessary. Finally, it calls for additional efforts to determine how to proceed toward the goal of ground water quality improvement in currently contaminated areas.
Over time, the experience gained through initial program implementation, the additional knowledge acquired through increasingly better data, and further examination of the ground water quality improvement issue may indicate that other approaches to ground water quality classifications and standards should be considered.
The purpose and effect of the interim standard is to assure that:
As addressed in subsection 3.12.5 , this narrative standard is not intended to discourage improvement of water quality or indicate that existing quality is adequate where contamination exists. Rather, the approach recommended reflects a decision that the determination of potential remediation requirements in the wide range of circumstances potentially at issue-e.g. agricultural use impacts, CERCLA sites, naturally elevated pollutants-would be more appropriately addressed in separate proceedings or separate forums. Subsection (2)(b) states an ambitious long-term cleanup goal. Neither this goal or the interim narrative standard are intended to prejudice the outcome of any subsequent classification and numerical standard-setting proceedings. In any such hearing, classifications and standards would be considered in accordance with the Commission's statutory and regulatory authority.
The purpose of subsection 3.12.5 is to provide some guidance as to the determination of existing ambient quality, including a "fallback" definition if existing data is deemed to be inadequate. The appropriate agency will need to exercise its best professional judgment in reviewing the available data. In some circumstances, data collected either prior to or subsequent to the adoption of this interim narrative standard may still legitimately be considered to be representative of "existing ambient quality as of the effective date of this regulation". This approach should provide for flexibility in the use of existing data and create an incentive to generate additional data. Additional data collection efforts by the Division are addressed below.
At a subsequent time, it may be appropriate to consider adoption of this same interim narrative standard for ground water elsewhere in Colorado. To remain with the scope of the notice for this hearing and to generate some initial experience with this approach, however, for now this alternative proposal addresses only the five regional areas identified in the initial proposal.
The Commission believes that the rulemaking record for this proceeding demonstrates the need for adoption of the interim narrative standard. The Commission is required by the Water Quality Control Act to develop "a comprehensive and effective program for prevention, control and abatement of water pollution and for water quality protection". Section 25-8-202(1), C.R.S. Further, in section 25-8-202(7)(1), C.R.S., the Commission is given sole responsibility for the adoption of water quality standards and classifications for state waters. The Commission believes that this action to begin to define ambient ground water quality standards is necessary to help provide guidance to the various state agencies charged with implementing water quality protection responsibilities. As indicated above, the Commission believes that the proper statutory authority exists for adoption of the interim narrative standard. In addition, the regulation is clearly and simply stated to the extent practical.
Finally, arguments were raised by some parties to the hearing that the alternative proposal presented by the Water Quality Control Division that has resulted in the interim narrative standard being adopted by the Commission should have been re-noticed prior to action by the Commission. The Commission does not believe that such re-noticing would be an appropriate use of public or private resources. The alternative ultimately being adopted is well within the range of alternatives originally noticed and put forth by various parties to the hearing in their prehearing statements. Moreover, the alternative being adopted was formulated precisely in response to many of the concerns raised during the hearing regarding the original proposal. Therefore, the regulation being adopted is a natural outgrowth of, and is strongly supported by, the rulemaking hearing record before the Commission.
The five major specified areas to which the narrative standard applies are, with minor revisions, identical to the areas outlined by the Division in the original proposal. The revision recommended by Equus Farms to clarify that the specified area for the South Platte alluvial system also extends to those formation associated with the alluvium that are overlain by other deposits, and therefore not shown on the Ogden and Tweto map as a surficial formation. The Commission applied this revision to the Arkansas Basin specified area as well since it is a similar riverine system. The clarification was not necessary for the other three aquifer systems since they, by definition, included all unconfined ground water within a definite geographical area, and did not include deposits masked by overlaying formations.
The Commission also accepted the revised description of the specified area for the San Luis Valley aquifer offered by Rio Grande Water User Association. The Division testified that it concurred with the revised description of the shallow ground waters in the San Luis Valley.
Several parties testified that the specified areas in the proposal were too large and ill-defined, and that smaller, more precisely delineated areas should be drawn up in a revised proposal. The Commission realizes that any classification system that relies upon geologic formations as a determinant of the boundaries of a classified ground water will be subject to legitimate differences of opinion, and will require site-specific determinations regardless of the map scale used to describe the specified area. Using political boundaries or other fixed topographical features such as highways would alleviate the need for site-specific determinations, but ground water formations do not adhere to such arbitrary boundaries, and therefore, such a system is not as realistic as one based on geology.
Also, CF&I raised the issue of whether the ground waters in a particular area within the specified area subject to this regulation are state waters. The Commission intends this interim narrative to apply only to state waters.
Finally, Coors requested that the specified area for the South Platte alluvial system include an additional area around Clear Creek as it exits the mountains near Golden. The Division stipulated to this addition and the commission concurs with its inclusion, but since it is not shown as Qa or Qg on the Ogden/Tweto map, a separate map (figure 1a) has been prepared to delineate it.
Application of the Interim Narrative Standard on a site-specific basis is dependent on a determination of "existing ambient quality" as of the effective date of this regulation. Several parties expressed concern regarding the difficulty of making this determination in the future, due in part to the limited ground water quality data that currently is available in many locations. Several parties suggested that this concern be addressed by determining "existing quality" as of the effective date of a permit or other implementation of the Interim Narrative Standard. The Commission believes that the effective date of this regulation is the appropriate time on which to base the existing quality determination. As discussed above, a fundamental purpose of the Interim Narrative Standard is to help assure that quality is not allowed to get any worse in currently contaminated areas. Determining existing quality as of a future implementation date would not account for degradation occurring in the interim.
At the same time, the Commission recognizes that existing data may currently be inadequate to determine existing ambient quality in many specific locations. Therefore, the Commission has made two changes to subsection 3.12.5 from the version contained in the original alternative proposal, in response to the concerns expressed by the parties.
First, the Commission has revised the language so that it now refers to "adequate information to determine or estimate' existing ambient quality". This change, recommended by the Metro Wastewater Reclamation District, is an appropriate recognition that definitive data will not always be available. The Commission does not intend that the "default standard" contained in subsection 3.12.5 would be applied where there is a reasonable basis for estimating existing ambient quality.
Second, the Commission has added a new sentence to this same subsection, providing that data generated in the future will be presumed to be representative of existing quality as of the regulation's effective date if no new or increased sources of ground water quality contamination have been initiated in the interim. Thus, where such additional contamination has not occurred, a potentially regulated entity could generate data at the time of future implementation of the Interim Narrative Standard and thereby avoid application of the default standard.
Finally, the Commission notes that an implementing agency's application of the Interim Narrative Standard can essentially be "appealed" to the Commission by requesting a site-specific classification and standard-setting hearing, if necessary; e.g., if later data is not adequate to determine quality as of the effective date of the regulation, due to intervening developments. Any site-specific use classifications and numerical standards adopted by the Commission would then override and nullify application of the Interim Narrative Standard in that location. Of course, any such hearing before the Commission would be a "de novo" proceeding, in which the default presumption contained in subsection 3.12.5 would carry no weight.
Subsection 3.12.5 provided what has been characterized as a "default standard" that applied if there is inadequate information to determine or estimate existing ambient quality. The purpose of this provision is to avoid the gaps in application of the Interim Narrative Standard that would otherwise exist where available data is limited. This provision will also have the benefit of creating an incentive for potentially regulated entities to help supplement the current data base. The Commission believes that it is important for the Division to increase its efforts to generate additional ground water quality data. However, it would be unrealistic to assume that these efforts will immediately result in the generation of data in all locations.
Some parties argued that this provision will have the same effect as the original classification and standards proposal considered in this hearing-widespread application of domestic and agricultural table value standards-due to application of the default standard in the absence of current data. This is incorrect. As explained above, a potentially regulated entity can avoid application of the default standard by generating site-specific data, even subsequent to the effective date of this regulation. Therefore, there is not reason to expect that application of the default standard will result in unreasonably stringent regulation.
Some parties also argued that the application of section 3.12.5(2)(c) will inappropriately shift the burden of proof regarding appropriate classifications and standards to potentially regulated entities, by automatically applying the table values as standards if inadequate information is available. A fundamental purpose of the Interim Narrative Standard is to provide appropriate protection for Colorado's ground water quality resources prior to the time that more comprehensive information on quality and uses is available. The Commission has determined as a matter of policy that where existing information is limited, the interim standards should resolve any uncertainty in favor of protection.
As discussed above, the purpose of subsection 3.12.5 is to clarify that the Interim Narrative Standard being adopted does not address the issues of when remediation of existing ground water quality contamination is necessary or how much remediation is appropriate for any site-specific situations. This section does state an ambitious long-term cleanup goal, to emphasize that the Commission believes that improvement of ground water quality should be aggressively pursued. In response to comments by several parties, this provision has now been revised from the original alternative proposal to refer to remediation "to the maximum degree technically feasible and economically reasonable". The Commission believes that this language is more consistent with the language of the Water Quality Control Act and represents appropriate policy. Although application of this goal to any particular fact situations is beyond the scope of this proceeding, the Commission notes that even very substantial expenditures may be "economically reasonable" when necessary to protect public health or important environmental resources. As indicated above, neither this goal or the Interim Narrative Standard are intended to prejudice the outcome of any subsequent classification and numerical standard-setting proceedings, or any remedial action determinations by applicable agencies.
Some parties expressed concern that the provisions being adopted could be interpreted to indicate that the Commission intends all naturally occurring contamination to be eliminated. This is not the Commission's intent. Again, the action taken here is not intended to prejudge the potential need for site-specific remediation in any particular circumstances. Moreover, if the Commission were requested to adopt site-specific classifications and standards that might be applicable to a remedial action, the Commission is mandated by section 25-8-203(2)(b) and 25-8-204(4)(e), C.R.S. to consider whether any contamination present results from natural sources.
Finally, the Commission notes that it believes that the provisions being adopted are responsive to concerns expressed by some parties that the Commission not adopt standards that would threaten the continued viability of agriculture in Colorado. The Interim Narrative Standard recognizes that past agricultural and other human activities have adversely impacted ground water quality, and does not mandate that such impacts be remediated. Of course, the Commission hopes that in many circumstances improved quality will be achieved over time. With respect to agricultural activities, the starting point for efforts to control ground water quality impacts will be implementation of Senate Bill 90-126.
Numerous parties expressed concern that implementation and enforcement of the proposed ground water classifications and standards have the potential to cause material injury to water rights. Like the surface water standards, the interim narrative standard is not self-implementing. In the absence of separate implementing authority, and the exercise thereof, the adopted standard is not intended to have a regulatory impact upon the exercise of water rights, including, but not limited to, the withdrawal and use of surface water or ground water for irrigation or stock watering, the use of surface water or ground water in recharge, augmentation, substitute supply, or exchange plans, and the diversion, carriage, storage, or release from storage of surface water or ground water. Naturally, the implementation and enforcement of this standard must be in strict compliance with C.R.S. 25-8-104(1). This standard establishes a baseline upon which a ground water protection program will be based as implementing regulations are adopted. The Commission specifically acknowledges that at such time as proposals or regulations are advanced to implement this standard, those with an interest in water rights shall have the opportunity to contest such proposals or regulations, and no waiver of such right shall be inferred from the adoption of the interim narrative standard.
The Commission concluded that the evidence presented by Brush clearly showed the existence of the domestic use of water in the area specified, and that the Division's and other parties' testimony supported the adoption of the agricultural classification as well. Brush's data included in their rebuttal statement demonstrated that the ground water was of very good quality, well within table values for domestic and agricultural uses. Therefore, the specified area shown was classified and standards set according to the framework established in the Basic Standards for Ground Water.
Management District ("District") presented evidence in support of assigning the proposed classifications and standards to the alluvial ground water within the District's boundary. The District is charged with the responsibility of conserving, preserving, protecting and recharging the ground water of the basin, and sought assurance that classifications and standards would be adopted to protect the existing domestic and agricultural uses of the ground water. No testimony in opposition to the District's position was received. Therefore, the Commission concluded that the alluvial ground waters as shown on Figure 3a were suitable for classification as domestic use-quality and agricultural use-quality, with all standards included in Tables 1-4 of the Basic Standards assigned accordingly.
The Commission expects several associated activities to take place to complement the establishment of an interim narrative standard for the five specified areas. First, the Water Quality Control Commission intends to schedule a rulemaking hearing for approximately one year from now, to consider the adoption of water quality classifications and standards for ground water in the vicinity of public water supplies in Colorado, to assure that these existing drinking water uses are protected. In that hearing, the Division would put forth its best available information regarding the identification of vulnerable ground water areas, using whatever reasonable assumptions may be necessary in the absence of detailed, site-specific geohydrologic information. The identification of these areas could be refined over time as better information became available, but this step would assure basic interim protection for those public water supplies in Colorado that rely on ground water. Local water purveyors would be involved in this process as they have been to date in the process of developing a state wellhead protection strategy. The identification of areas for these ground water quality classifications and standards would not be intended to prejudice the subsequent delineation of wellhead protection areas, as part of the program that the State is currently developing.
Second, site-specific ground water quality classification and standard-setting hearings would be held on an "as needed" basis. For example, if the Division felt that there were certain areas where there is extensive reliance on ground water for drinking water from private supplies, although no public water supply is present, such areas could be brought to the Commission for classification and standard-setting. If appropriate based on available information, such areas could be addressed in the same rulemaking hearing to consider ground water in the vicinity of public water supplies. In addition, the Commission will consider classification and standard-setting petitions submitted by any outside entities.
The Commission has decided not to adopt site-specific classifications and standards as a result of this hearing for those site-specific situations that were contested in this proceeding, such as Hog Farms/Equus and Arapahoe County/Aurora/Cherry Creek Basin Authority. These issues should be readdressed in subsequent site-specific hearings if it is determined that the interim narrative standard described above does not provide adequate protection, or that alternative numerical standards ought to be applied.
Third, the Division is requested to work with the various implementing agencies to develop Memoranda of Agreement, or revise existing MOAs, to address the question of how the existing statewide numerical standards for organics and radionuclides, the new interim narrative standard adopted as a result of this hearing, and any future classifications and numerical standards would be implemented by other agencies. The development or revision of these MOAs is not intended to interfere with or delay ongoing program development efforts by implementing agencies. Where regulatory actions by other agencies addressing implementation will be completed in the near future, new or revised MOAs may be unnecessary. As used here, "implementing agencies" refers to the Department of Agriculture as well as those agencies identified in Senate Bill 181, due to the provisions of SB 126. Of course, the Division itself also has an implementation role, in accordance with applicable discharge permit regulations and control regulations adopted by the Commission. The Ground Water Commission, while not an implementing subject to the legal provisions of SB 181, nonetheless ought to be consulted with in a manner similar to the other agencies noted above.
Fourth, the Division is requested to work with other state agencies and outside entities to develop proposals for enhancing the currently available ground water quality data base. This may include better integration of data currently generated from a variety of sources, as well as proposals for funding for developing more data in the future. In addition, this effort should consider whether additional monitoring requirements should be established for activities potentially impacting ground water quality. This effort should also take into account the need for improved information for more precise delineation of wellhead protection areas.
Fifth, the Division is request to develop a proposal regarding how the Commission and Division should proceed to address the goal of ground water quality improvement in currently contaminated areas. As stated in the interim narrative standard described above, the Commission has articulated a goal that, to the maximum degree feasible, contaminated ground water should be cleaned up to a degree that it is usable for all existing and potential beneficial uses. However, the interim narrative standard itself would not result in any progress toward that goal. Therefore, the Commission requests this effort by the Division to help assure such progress, and in particular to further assure that the interim "existing ambient quality" standard being adopted here for contaminated areas is not interpreted as-or does not de facto become-a long-term acceptable result.
The Division is requested to proceed in a manner that provides for substantial public input as each of these efforts proceed. If these efforts indicate a need for revising the Basic Standards for Ground Water, or otherwise modifying the Commission and Division's approach to the ground water quality protection issue, the Division or any other interested entity could bring any such proposals to the Commission for consideration as they are developed.
PARTIES TO THE MAY 6 & 7, 1991 RULEMAKING HEARING FOR THE UNCONFINED GROUND WATER
5 CCR 1002-42.11