5 Colo. Code Regs. § 1002-61.8

Current through Register Vol. 47, No. 20, October 25, 2024

Section 5 CCR 1002-61.8 - TERMS AND CONDITIONS OF PERMITS

Terms and conditions consistent with those specified in this regulation, including but not limited to, the terms and conditions specified in sections 61.4 , 61.8 , 61.8 , 61.8 , 61.8 , 61.8 , 61.8 , 61.8 , 61.8 and 61.8 , shall be incorporated into the Division's permits, either expressly or by reference to this regulation. If incorporated by reference, a specific citation to this Regulation shall be given in the permit. Terms and conditions consistent with sections 61.8 and 61.8 shall be incorporated into the Division's permits as applicable.

A permittee must comply with all the terms and conditions of the permit. Violation of the terms and conditions specified in this permit may be subject to civil and criminal liability pursuant to sections 25-8-601 through 612, C.R.S., and the Federal Act. Upon a finding and determination, after hearing, that a violation of a permit provision has occurred, the Division may suspend, modify, or revoke the pertinent permit or take such other action with respect to the violation.

61.8(1)PROHIBITIONS

(a) The Division shall issue a permit in accordance with these regulations when the Division has determined that the provisions of these regulations and the Federal Act and regulations thereunder have been met with respect to both the application and proposed permit.

(b) The Division shall not issue a permit under the following circumstances:

(i) When the Regional Administrator has objected to the issuance of a permit, provided the Regional Administrator complies with the procedures of 40 C.F.R. Section 123.44 and his or her objections are based on the grounds set forth therein.

(ii) When, in the judgment of the Secretary of the Army, anchorage and navigation in or on any of the waters of the United States would be substantially impaired by the discharge;

(iii) When the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected States.

(iv) To a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of the new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after application of technology-based effluent limitations, and for which the Division has performed a total maximum daily load for the pollutant to be discharged, must demonstrate, before the close of the public comment period, that:

(A) There are sufficient remaining load allocations to allow for the discharge; and

(B) The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards.

(c) No permit shall be issued which is inconsistent with any duly promulgated and controlling state, regional, or local land use plan or any portion of an approved regional wastewater management plan which has been adopted as a regulation unless all other requirements and conditions of this act have been met or will be met pursuant to a schedule of compliance or a variance specifying treatment requirements as determined by the Division.

(d) No permit shall be issued which allows a violation of a control regulation unless the waste discharge permit contains effluent limitations and a schedule of compliance or a variance specifying treatment requirements as determined by the Division.

(e) No permit shall be issued which allows a discharge that by itself or in combination with other pollution will result in pollution of the receiving waters in excess of the pollution permitted by an applicable water quality standard or applicable antidegradation requirement unless the permit contains effluent limitations and a schedule of compliance specifying treatment requirements or the Division has granted a variance from the water quality standard.

(f) No permit shall be issued which allows the discharge of any radiological, chemical, or biological warfare agent or high-level radioactive waste.

61.8(2)DEFINITION OF EFFLUENT LIMITATIONS Effluent limitations for each permit will, as a minimum, include the following effluent limitations and standards. Effluent limitations for land disposal systems shall, as a minimum, meet the applicable provisions of the "Regulations for Effluent Limitations" (Regulation 62, 5 CCR 1002-62) except that the limitation for residual chlorine at section 4(d) shall not apply.

(a) Technology Based Effluent Limitations

(i) All applicable state effluent limitations adopted in 5 CCR 1002-62, Regulation No. 62, et. seq.;

(ii) All applicable effluent limitations for categorical industries adopted by EPA and incorporated in this regulation by reference. The following effluent limitations for categorical industries are hereby incorporated by reference:

40 C.F.R. Parts 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 439, 440, 443, 446, 447, 454, 455, 457, 458, 459, 460, 461, 463, 464, 465, 466, 467, 468, 469, and 471;

(iii) All applicable standards and criteria adopted by EPA in 40 C.F.R. Part 125 ; and

(iv) All applicable toxic pollutant standards adopted by EPA in 40 C. F.R. Part 129.

(v) When necessary for compliance with the Federal Act for the achievement of technology-based effluent limitations, the Division may exercise best professional judgment (BPJ) in establishing effluent limitations on a case-by-case basis for individual permits granted pursuant to section 25-8-503(1), C.R.S. Technology-based effluent limitations based on best professional judgment (BPJ) shall be made only for good cause and in the absence of Federally promulgated effluent guidelines or effluent limitation regulations promulgated by the Commission and shall be subject to review as provided for in paragraph (v)(B) of this subsection and in section 4(A)(3)(b) of the Procedural Regulations, Regulation No. 21.

(A) Effluent limitations established through the exercise of best professional judgment (BPJ) shall be made after considering the availability of appropriate technology, its economic reasonableness, the age of equipment and facilities involved, the process employed, and any increase in water or energy consumption.

(B) Review by a hearing officer of technology-based effluent limitations based on best professional judgment shall be on request of the permit applicant or permittee or any aggrieved person and shall take place in an adjudicatory hearing to be held pursuant to section 24-4-105, C.R.S., the necessity of effluent limitations based on best professional judgment, as well as the reasonableness of the effluent limitation must be supported by substantial evidence. If such hearing is requested, it shall be held as part of a hearing requested to challenge the conditions of the permit

(b) Water Quality Standards-Based Effluent Limitations

(i) Where the effluent limitations, as required by paragraph (1) of this section will not provide sufficient treatment to meet water quality standards, including narrative standards, for the receiving waters, the Division will define more stringent effluent limitations based upon water quality standards in accordance with The Basic Standards and Methodologies for Surface Water, Regulation No. 31 et. seq (5 CCR 1002-31) and "The Basic Standards for Groundwater", (5 CCR 1002-41). Effluent limitations designed to meet water quality standards shall be based on application of appropriate physical, chemical, and biological factors reasonably necessary to achieve the levels of protection required by the standards. Such determination shall be made on a case-by-case basis.

(A) Limitations must control all pollutants or pollutant parameters which the Division determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or measurably contribute to an excursion above any water quality standard, including narrative standards for water quality.

(B) When determining whether a discharge causes, has the reasonable potential to cause, or measurably contributes to an in-stream excursion above a narrative or numeric water quality standard, the Division shall use procedures, including appropriate water quality modeling, which account for existing controls on point and nonpoint sources of pollution, the variability of the pollutant or pollutant parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole effluent toxicity), and where appropriate, the dilution of the effluent in the receiving water.

(C) When the Division determines, using the procedures in subsection (b)(i)(B) of this section, that a discharge causes, has the reasonable potential to cause, or measurably contributes to an in-stream excursion above the allowable ambient concentration of a numeric water quality standard for an individual pollutant, the permit must contain effluent limits for that pollutant.

(D) When the Division determines, using the procedures in subsection (b)(i)(B) of this section, that a discharge causes, has the reasonable potential to cause, or measurably contributes to an in-stream excursion above the numeric standard for whole effluent toxicity, if any such criterion has been adopted, the permit must contain effluent limits for whole effluent toxicity.

(E) Except as provided in this subparagraph, when the Division determines, using the procedures in subsection (b)(i)(B) of this section, toxicity testing data, or other information, that a discharge causes, has the reasonable potential to cause, or measurably contributes to an in-stream excursion above a narrative water quality standard, the permit must contain limitations, which include effluent limits, for whole effluent toxicity. Such limitations to be derived by the Division are based upon the Division's determination of what constitutes an acceptable level of whole effluent toxicity. Limits on whole effluent toxicity are not necessary where the Division demonstrates in the rationale of the permit, using the procedures in subsection (b)(i)(B) of this section, that chemical-specific limits for the effluent are sufficient to attain and maintain applicable numeric and narrative water quality standards.

(F) Where a water quality standard has not been established for a specific chemical pollutant that is present in an effluent at a concentration that causes, has the reasonable potential to cause, or measurably contributes to an excursion above a narrative water quality standard, the Division must establish effluent limits using one or more of the following options:

(I) Establish effluent limits in a manner consistent with the commission's methodology for establishing numeric water quality standards and, if applicable, such limits shall be consistent with the criteria contained in Tables I, II and III of the Basic Standards, Regulation No. 31; or

(II) Establish effluent limits on an indicator parameter for the pollutant of concern, provided:

(a) The permit identifies which pollutants are intended to be controlled by the use of the effluent limit;

(b) The permit rationale sets forth the basis for the limit, including a finding that compliance with the effluent limit on the indicator parameter will result in controls on the pollutant of concern which are sufficient to attain and maintain applicable water quality standards;

(c) The permit requires all effluent and ambient monitoring necessary to show that during the term of the permit the limit on the indicator parameter continues to attain and maintain applicable water quality standards; and

(d) The permit contains a reopener clause allowing the Division to modify or revoke and reissue the permit if the limits on the indicator parameter no longer attain and maintain applicable water quality standards.

(G) When developing water quality-based effluent limits under this paragraph, the Division shall ensure that

(I) The level of water quality to be achieved by limits on point sources established under this paragraph is derived from, and complies with all applicable water quality standards; and

(II) Effluent limits developed to protect a narrative water quality standard, a numeric water quality standard, or both, are consistent with the assumptions and requirements of any available wasteload allocation for the discharge prepared by the Division.

(ii) For discharges potentially impacting ground water, where site-specific ground water standards have not been promulgated in the area of the discharge, or in the area of recharge from surface waters, the Division will establish numerical protection levels based on the following procedure:

(A) The Division will consider the existing and any reasonable probable future beneficial uses of ground water that need to be protected in the vicinity of the discharge, and establish the appropriate corresponding numerical protection levels for specific contaminants, based on those beneficial uses, as outlined in Regulation No. 41, section 41.5 of "The Basic Standards for Ground Water". The Division will take into account reasonably available information, including any information required of or provided by the applicant.

(B) A determination made by the Division in accordance with paragraph A., above, will not be deemed to constitute a ground water quality classification or standard, and will not be binding on any persons other than the applicant in question.

(C) If an applicant, or any other interested person, disagrees with the determination made by the Division in accordance with paragraph A., above, it may petition the Commission to adopt site-specific classification and standards. Any determination made by the Commission during the hearing process would then become binding on the Division and the applicant. At the request of the applicant or interested person, the Commission will consider such a hearing to be mandatory and de novo.

(iii) For discharges potentially impacting ground water:

(A) The Division, except as provided in (B) below, will establish effluent limitations at the point of compliance taking into account applicable ground water standards or numerical protection levels. When compliance with effluent limitations is predicated on attenuation of pollutant concentrations in the surface water, in the vadose zone and/or along the flow path in the ground water, the Division may deny the permit unless information substantiating such attenuation is provided. If substantiating information is provided, the Division may require verification monitoring and development and implementation of a control plan pursuant to sections 61.14(5) and (6).

(B) Where the applicant has requested, and available information provides a reasonable basis for the Division to do so, effluent limitations may be established at the point of discharge or at another point prior to the point of compliance.

(iv) Where subsection (b) is applicable, the permit shall be written with effluent limitations that respect the methods by which water quality standards were derived, and the degree of variation of water quality that exists in the relevant stream segment or ground water on a seasonal basis or otherwise. The existence of water quality standards, particularly where based on ambient stream data, does not necessarily prohibit at all times discharges that may result in pollution of the receiving waters in excess of the applicable water quality standards.

(v) Utilizing its best engineering judgement, where subsection (b) is applicable, the Division will use a mass-balance analysis to define the effluent limitations for discharges to surface waters such that the combined concentrations of pollutants contributed by the discharger and the receiving waters upstream from the point of discharge do not exceed the water quality standards for the receiving waters, downstream of any mixing zone established by the Division for each pollutant.

(vi) For most pollutants the Division will assign the effluent limitations defined from the mass-balance analysis described in subsection (b)(v) above as the thirty-day average value in the permit. Where the pollutant has a relatively acute toxic effect, the results of the mass-balance analysis will be assigned to a shorter-term average value, such as a seven-day average or a daily maximum or minimum limitations.

(vii) Effluent monitoring to determine compliance with metals limitations based on dissolved metals standards shall utilize the potentially dissolved method, except that if it can be demonstrated that there is no statistically significant difference at a 95 percent confidence interval between potentially dissolved and dissolved methodologies using paired samples, the Division shall allow the use of the dissolved analytical methodology to measure compliance with such limitations. Monitoring to determine compliance shall be by total recoverable methodology where translation of a dissolved standard is requested by the permittee and the permittee can demonstrate to the satisfaction of the Division the instream relationship between dissolved and total recoverable metals. Otherwise, the potentially dissolved methodology shall be used assuming a 1:1 ratio between the dissolved standard and the potentially dissolved effluent limitation. In addition, if requested by a discharger, the Division will allow the total recoverable analytical procedure for metals to be used in lieu of the potentially dissolved procedures without adjustment of the required effluent levels.

(viii) For discharges which contain ammonia or metals (see table II and III, Basic Standards Regulation) in sufficient quantities to potentially cause exceedance of the assigned water quality standard, the Division shall assign limitations which protect both the acute and chronic water quality standards. Such limitations shall be derived utilizing the stream low flow as defined in Regulation No. 31, section 31.9(1) of the Basic Standards.

(ix) Except as provided for in 61.8(2)(g)(ii) and for whole effluent toxicity requirements, the Division shall determine compliance with an acute water quality standard-based effluent limitation through determination of a daily average concentration of the particular pollutant, and shall determine compliance with a chronic water quality standard-based effluent limitation through determination of a thirty-day average concentration, unless the standard specifies a different duration. Limitations for the protection of both acute and chronic water quality standards shall be designed to not exceed those standards more frequently than once every three years on the average.

(c) Wasteload Allocation and Trading

(i) Where multiple discharges within a given segment of receiving waters require the definition of maximum loading and waste load allocations for that segment, the Division is responsible for defining the waste load allocations among the permittees affected, but such allocations will be made in cooperation and with collective assistance of these permittees.

(ii) Trading of existing wasteload allocations or reductions in load allocations among point and/or non-point sources may be used to set effluent limits based on duly promulgated control regulations. In the establishment of effluent limits the Division may also take into account watershed-based water quality plans, federal lands use plans, or other enforceable measures allowed under state or federal requirements and impacting pollutant loadings.

(iii) Where the discharge contains a pollutant for which the receiving waters are impaired and a TMDL is required, a permit may be extended with the permittee's concurrence based on the imminent completion of the TMDL and/or other factors deemed relevant by the Division. If, in the Division's judgment, an extension is not appropriate, a renewal permit may be issued that allows the discharge to continue at a level up to the existing permitted point source load. Where the Commission has adopted a temporary modification for a parameter for which the segment receiving the discharge is impaired, effluent limits shall be set in accordance with the provisions of Regulation No. 31.

Within a reasonable time of EPA's approval of the TMDL, the Division shall reopen or reissue the permit and incorporate effluent limits consistent with the wasteload allocation established under the TMDL. Where necessary, the Division shall also include interim limits and a schedule of compliance to attain such limits.

(d) Intake Credits

(i) Upon request of the discharger, where appropriate and consistent with federal requirements, effluent limitations or standards shall be adjusted to reflect credit for pollutants in the discharger's intake water if:

(A) The applicable effluent limitations and standards specifically provide that they shall be applied on a net basis; or

(B) The discharger demonstrates that the control system it proposes or uses to meet applicable limitations and standards would, if properly installed and operated, meet the limitations and standards in the absence of pollutants in the intake waters.

(ii) Credit for conventional pollutants such as biochemical oxygen demand (BOD) or total suspended solids (TSS) should not be granted unless the permittee demonstrates that the constituents of the conventional measure in the effluent are substantially similar to the constituents of the conventional measure in the intake water or unless appropriate additional limits are placed on process water pollutants either at the outfall or elsewhere.

(iii) Credit shall be granted only to the extent necessary to meet the applicable limitation or standard, up to a maximum value equal to the influent value. Additional monitoring may be necessary to determine eligibility for credits and compliance with permit limits.

(iv) Credit shall be granted only if the discharger demonstrates that the intake water is drawn from the same body of water into which the discharge is made. The Director may waive this requirement if he finds that no environmental degradation will result.

(v) This section does not apply to the discharge of raw water clarifier sludge generated from the treatment of intake water.

(e) All permit effluent limitations, standards and prohibitions shall be established for each outfall or discharge point of the permitted facility, except as otherwise provided under section 61.8 (the permit includes BMPs because effluent limitations are infeasible) or under paragraph (f) of this section (limitations on internal waste streams).

(f) Production-based limitations.

(i) In the case of POTWs, permit effluent limitations, standards, or prohibitions shall be calculated based on design flow with the following exceptions:

(A) When a facility is a treater for reclaimed water, as defined in Regulation 84, the Division can establish permit effluent limitations, standards, or prohibitions by subtracting the reclaimed water flow capacity, the minimum reclaimed water treated, or a lower amount from the design flow of the plant.

(B) When a domestic wastewater treatment works includes flow equalization that affects the maximum month average daily discharge (or other measure deemed appropriate by the Division), the Division may establish permit effluent limitations, standards, or prohibitions using the flow as measured after all flow equalization rather than the design flow.

(C) Where the facility design flow and actual flow are significantly different, the Division may implement a tiered approach to setting water-quality-standard-based effluent limitations, provided that one of the sets of effluent limitations reflects the design flow and the permittee demonstrates the ability to meet effluent limitations at the design flow rate. Where such demonstration cannot be made, the permit shall contain a compliance schedule to allow such demonstration within a reasonable time not to exceed the life of the permit (i.e., five years).

(ii) Other permitted discharges:

(A) Except in the case of POTWs or as provided in paragraph (ii)(B) below, calculation of any permit limitations, standards, or prohibitions which are based on production (or other measure of operation) shall be based not upon the designed production capacity but rather upon a reasonable measure of actual production of the facility. For new sources or new dischargers, actual production shall be estimated using projected production. The time period of the measure of production shall correspond to the time period of the calculated permit limitations; for example, monthly production shall be used to calculate average monthly discharge limitations.

(B) The Division may include a condition establishing alternate permit limitations, standards, or prohibitions based upon anticipated increased (not to exceed maximum production capability) or decreased production levels.

(C) If the Division establishes permit conditions under paragraph (ii)(B) of this section:

(I) The permit shall require the permittee to notify the Division at least two business days prior to a month in which the permittee expects to operate at a level higher than the lowest production level identified in the permit. The notice shall specify the anticipated level and the period during which the permittee expects to operate at the alternate level. If the notice covers more than one month, the notice shall specify the reasons for the anticipated production level increase. New notice of discharge at alternate levels is required to cover a period or production level not covered by prior notice or, if during two consecutive months otherwise covered by a notice, the production level at the permitted facility does not in fact meet the higher level designated in the notice.

(II) The permittee shall comply with the limitations, standards, or prohibitions that correspond to the lowest level of production specified in the permit, unless the permittee has notified the Division under paragraph (C)(l) above, in which case the permittee shall comply with the lower of the actual level of production during each month or the level specified in the notice.

(III) The permittee shall submit with the reports required under 61.8(4), the level of production that actually occurred during each month and the limitations, standards, or prohibitions applicable to that level of production.

(g) For continuous discharges all permit effluent limitations, standards, and prohibitions, including those necessary to achieve water quality standards, shall unless impracticable be stated as:

(i) Maximum daily and average monthly discharge limitations for all dischargers other than POTWs; and

(ii) Average weekly and average monthly discharge limitations for POTWs.

(h) Discharges which are not continuous shall be particularly described and limited, considering the following factors, as appropriate:

(i) Frequency (for example, a batch discharge shall not occur more than once every 3 weeks);

(ii) Total mass (for example, not to exceed 100 kilograms of zinc and 200 kilograms of chromium per batch discharge);

(iii) Maximum rate of discharge of pollutants during the discharge (for example, not to exceed 2 kilograms of zinc per minute); and

(iv) Prohibition or limitation of specified pollutants by mass, concentration, or other appropriate measure (for example, shall not contain at any time more than 0.1 mg/l zinc or more than 250 grams (1/4 kilogram) of zinc in any discharge).

(i) Mass limitations:

(i) All pollutants limited in permits shall have limitations, standards or prohibitions expressed in terms of concentration and mass or concentration and flow except:

(A) For pH, temperature, radiation, or other pollutants which cannot appropriately be expressed by mass;

(B) When applicable standards and limitations are expressed in terms of other units of measurements; or

(C) If in establishing permit limitations on a case-by-case basis under 61.8(2)(a)(iv) limitations expressed in terms of mass are infeasible because the mass of the pollutant discharged cannot be related to a measure of operation (for example, discharges of TSS from certain mining operations), and permit conditions ensure that dilution will not be used as a substitute for treatment.

(ii) Pollutants limited in terms of mass additionally may be limited in terms of other units of measurement, and the permit shall require the permittee to comply with both limitations.

(j) Internal waste streams:

(i) When permit effluent limitations or standards imposed at the point of discharge are impractical or infeasible, effluent limitations or standards for discharges of pollutants may be imposed on internal waste streams before mixing with other waste streams or cooling water streams. In those instances, monitoring requirements pursuant to this regulation shall also be applied to the internal waste streams,

(ii) Limits on internal waste streams will be imposed only when the permit rationale sets forth the exceptional circumstances which make such limitations necessary, such as when the final discharge point is inaccessible (for example, under 10 meters of water), the wastes at the point of discharge are so diluted as to make monitoring impracticable, or the interferences among pollutants at the point of discharge would make detection or analysis impracticable.

(k) Permit limitations and standards, when part of the permittee's process wastewater is not being discharged into state waters but into a well, POTW or by land application, shall be calculated as provided in 40 C.F.R. 122.50.

(l) The "Colorado River Salinity Standards" state that "the objective for discharges shall be a no-salt return policy whenever practicable." This is the policy that shall be followed in issuing CDPS permits for all new discharges, and upon reissuance of permits for all existing discharges. All CDPS permits for discharges to surface waters within the Colorado River Basin shall contain limitations and monitoring conditions consistent with those specified below.

(i) Industrial Sources

(A) The no-salt discharge requirement, and the requisite demonstration that it is not practicable to prevent the discharge of all salt, may be waived in those cases where the salt load reaching the mainstem of the Colorado River is less than one ton per day or 350 tons per year, whichever is more appropriate. Evaluation will be made on a case-by-case basis. The following addresses those cases where no-discharge of salt from industrial discharges may be deemed not to be practicable. The maximum TDS concentration considered to be fresh water is 500 mg/l for discharges into the Colorado River within the state of Colorado.

(I) The Division may permit the discharge of salt upon a satisfactory demonstration by the permittee that it is not practicable to prevent the discharge of all salt. The demonstration by the applicant for a new permit must include the following information relating to the potential discharge. Applicants for reissuance of a permit shall either submit a statement that their previous demonstration is still applicable or submit new information consistent with the following list describing any changed circumstances.

(a) Existing annual tonnage of salt discharged and seasonal effluent discharge flowrates.

(b) Cost of modifying an industrial wastewater treatment plant, if any, to provide for no salt discharge.

(c) Cost of salt minimization.

(d) Description of the quantity and salinity of the water supply.

(e) Description of water rights, including diversion and consumptive use quantities and the compatibility of Colorado water laws with either the complete elimination of a salt discharge or any plan for minimizing a salt discharge.

(f) Alternative plans that could reduce or eliminate salt discharge. Alternative plans shall include:

(i) Description of alternative water supplies, including provisions for water reuse, if any.

(ii) Description of the quantity and the quality of the proposed discharge.

(iii) Description of how salts removed from discharges shall be disposed of to prevent such salts from entering surface waters or ground water aquifers.

(iv) Costs of alternative plans in dollars per ton of salt removed.

(v) Unless the permitting authority has previously determined through prior permitting or permit renewal actions that it is not practicable to prevent the discharge of all salt the applicant must include information on project options that would offset all or part of the salt loading to the Colorado River associated with the proposed discharge or that would contribute to state or interstate salinity control projects or salt banking programs.

(g) Of the alternatives, a statement as to the one plan for reduction of salt discharge that the applicant recommends be adopted.

(h) Such other information pertinent to demonstration of non-practicability as the Division may deem necessary.

(II) In determining what permit conditions shall be required, where no discharge is determined to be impracticable, the Division shall consider the items as follows:

(a) The impact of the total proposed salt discharge of each alternative on the lower mainstem in terms of both tons per year and concentration load.

(b) Costs per ton of salt removed from the discharge for each plan alternative.

(c) Capability of minimizing the discharge of salt.

(d) The annual cost of plant modification in terms of dollars per ton of salt removed for:

(i) No salt return

(ii) Minimizing salt return

(III) Analysis for salinity shall be required in all industrial permits that discharge in the Colorado River Basin. Salinity may be determined as total dissolved solids (TDS) or by electrical conductivity where a satisfactory correlation with TDS has been established. The correlation should be based on a minimum of five different samples.

(ii) Discharges of Salinity from a New Industrial Source with Operations and Discharging Facilities at Multiple Locations

(A) The objective for discharges to surface waters from a new industrial source with operations and discharging facilities at multiple locations shall be to assure that such operations will have no adverse effect on achieving the adopted numeric salinity standards for the Colorado River.

(B) NPDES permit requirements for a new industrial source with operations and discharging facilities at multiple locations shall be defined, for purposes of establishing effluent limitations for salinity, as a single industrial source if these facilities meet the following criteria:

(I) The discharging facilities, which commenced construction on a pilot, development or production scale on or after November 1,2002, are interrelated or integrated in any way including being engaged in a primary activity or the production of a principle product; and,

(II) The discharging facilities are located on contiguous or adjacent properties or are within a single production area (i.e. geologic basin, geohydrologic basin, coal field or 8 digit hydrologic unit watershed area; and

(III) The discharging facilities are owned or operated by the same person or by persons under common or affiliated ownership or management.

(C) The permitting authority may permit the discharge of salt from a new industrial source with operations and discharging facilities at multiple locations if one or more of the following requirements are met:

(I) The permittee has demonstrated that it is not practicable to prevent the discharge of all salt from the industrial source. This demonstration by the applicant must include detailed information on the factors set forth in section 61.8 ; with particular emphasis on an assessment of salinity off-set options that would contribute to state or interstate salinity control projects or salt banking programs and offset all or part of the salt loading to the Colorado River associated with the proposed discharge.

(II) In determining what permit conditions shall be required under section 61.8 , above, the Division shall consider the requirement for an offset project to be feasible if the cost per ton of salt removal in the offset project options (i.e. the permittee's cost in conducting or buying into such projects where they are available) is less than or equal to the cost per ton of salt removal for projects undertaken by the Colorado River Basin Salinity Control Forum or less than the cost per ton in damages caused by salinity that would otherwise be cumulatively discharged from the outfalls at the various locations with operations controlled by the industrial source; or

(III) The permittee has demonstrated that one or more of the proposed discharges is of sufficient quality in terms of TDS concentrations to qualify for a "fresh water waiver" from the policy of "no salt return, whenever practical." An individual discharge that can qualify for a fresh water waiver shall be considered to have no adverse effect on achieving the adopted numeric salinity standards for the Colorado River system.

(D) For the purpose of determining whether a freshwater waiver can be granted, the quality of water discharged from the new industrial source with operations and discharging facilities at multiple locations, determined as the flow weighted average of salinity concentrations at all outfall points, must meet the applicable benchmark concentration in accordance with section 61.8(2)(l)(i)(A).

(E) Very small-scale pilot activities, involving 5 or fewer outfalls, that are sited in areas not previously developed or placed into production by new industrial source operations with discharges at multiple locations under common or affiliated ownership or management, may be permitted in cases where the discharge of salt from each outfall is less than one ton per day or 366 tons per year. However, upon the date of the first permit renewal when the pilot activities have become part of a larger industrial development or production scale effort, all discharging facilities shall be addressed for permitting purposes, as a single industrial source with operations and discharges at multiple locations under common or affiliated ownership or management.

(iii) Intercepted Ground Water

The discharge of intercepted ground water must be evaluated in a manner consistent with the overall objective of "no salt return" whenever practical. The following provides more detailed guidance for those situations where ground waters are intercepted with resultant changes in ground-water flow regime.

(A) The "no-salt" discharge requirement may be waived where the discharged salt load reaching the main stem of the Colorado River is less than one ton per day or 350 tons per year, whichever is more appropriate. Evaluation will be made on a case-by-case basis.

(B) Consideration should be given to the possibility that the ground water, if not intercepted, normally would reach the Colorado River System in a reasonable time frame. A permittee desiring such consideration must provide detailed information including a description of the topography, geology, and hydrology. Such information must include direction and rate of ground-water flow and the chemical quality and quantity of surface streams and springs that might be affected. If the information adequately demonstrates that the ground water to be intercepted normally would reach the river system in a reasonable time frame and would contain approximately the same or greater salt load than if not intercepted, and if no significant localized problems would be created, then the Division may waive the "no-salt" discharge requirement.

(C) In those situations where the discharge does not meet the criteria in (A) or (B), above, the applicant for a new permit will be required to submit the following information on the potential discharge for consideration. Applicants for reissuance of a permit need only provide any relevant information on changed circumstances, in regard to the following information, since the previous application.

(I) Description of the topography, geology, and hydrology. Such information must include the location of the development, direction and rate of ground-water flow, chemical quality and quantity of ground water, and relevant data on surface streams and springs that are or might be affected. This information should be provided for the conditions with and without the project.

(II) Alternative plans that could substantially reduce or eliminate salt discharge. Alternative plans must include:

(a) Description of water rights, including beneficial uses, diversions, and consumptive use quantities.

(b) Description of alternative water supplies, including provisions for water reuse, if any.

(c) Description of quantity and quality of the proposed discharge.

(d) Description of how salts removed from the discharge shall be disposed of to prevent their entering surface waters or ground water aquifers.

(e) Technical feasibility of the alternatives.

(f) Total construction, operation, and maintenance costs; and costs in dollars per ton of salt removed from the discharge.

(g) Closure plans to ensure termination of any proposed discharge at the end of the economic life of the project.

(h) A statement as to the one alternative plan for reduction of salt discharge that the applicant recommends be adopted, including an evaluation of the technical, economic, and legal practicability of achieving no discharge of salt

(i) Such information as the permitting authority may deem necessary.

(D) In determining whether a "no-salt" discharge is practicable, the Division shall consider, but not be limited to, the water rights and the technical, economic, and legal practicability of achieving no discharge of salt.

(E) Where "no-salt" discharge is determined not to be practicable the Division shall, in determining permit conditions, consider:

(I) The impact of the total proposed salt discharge of each alternative on the lower main stem in terms of both tons per year and concentration.

(II) The costs per ton of salt removed from the discharge for each plan alternative.

(III) The compatibility of state water laws with each alternative.

(IV) The capability of minimizing the discharge of salt.

(V) The localized impact of the discharge.

(VI) The minimization of salt discharges and the preservation of fresh water by using intercepted ground water for industrial processes, dust control, etc., whenever it is economically feasible and environmentally sound.

(iv) Fish Hatcheries

Discharges from fish hatcheries shall be allowed an incremental increase in salinity of 100 mg/l or less above the flow weighted average salinity of the intake supply water. The 100 mg/l incremental increase may be waived if the discharged salt load reaching the Colorado River system is less than one ton per day, or 350 tons per year, whichever is more appropriate. Evaluation is to be made on a case-by-case basis.

(A) The Division may permit a discharge in excess of the 100 mg/l incremental increase at the time of issuance or reissuance of a CDPS discharge permit upon satisfactory demonstration by the permittee that it is not practicable to attain the 100 mg/I limit. Demonstration by the applicant for a new permit must include information on the following factors relating to the potential discharge. Applicants for reissuance of a permit need only provide any relevant information on changed circumstances, in regard to the following factors, since their previous demonstration.

(I) A description of the fish hatchery and facilities.

(II) A description of the quantity and salinity of intake water sources.

(III) A description of salt sources in the hatchery.

(IV) A description of water rights, including diversions and consumptive use quantities.

(V) A description of the discharge, covering location, receiving waters, quantity of salt load, and salinity.

(VI) Alternative plans for minimizing the salt discharge from the hatchery. Alternative plans should include:

(a) A description of alternative means of salt control.

(b) The cost of alternative plans, in dollars per ton, of salt removed from discharge.

(VII) Such other information pertinent to demonstration of non-practicability as the Division may deem necessary.

(B) In determining what permit conditions shall be required, the Division shall consider the following criteria including, but not limited to:

(I) The practicability of achieving the 100 mg/l incremental increase.

(II) Where the 100 mg/l incremental increase is not determined to be practicable:

(a) The impact of the proposed salt input of each alternative on the lower main stem in terms of tons per year and concentration.

(b) The costs per ton of salt removed from discharge of each alternative plan.

(c) The capability of minimizing the salt discharge.

(III) If, in the opinion of the Division, the database for the hatchery is inadequate, the permit will contain the requirement that the permittee monitor the water supply and the discharge for salinity. Such monitoring program shall be completed within two years and the permittee shall then present the information as specified above.

(IV) All new and reissued CDPS permits for hatcheries shall require monitoring of the salinity of the intake water supply and the effluent at the time of peak fish population.

(a) Analysis for salinity may be either as total dissolved solids (TDS) or by electrical conductivity where a satisfactory correlation with TDS has been established. The correlation should be based on a minimum of five different samples.

(v) Discharge of Once-Through Non-Contact Cooling Water

(A) Definitions:

(I) The terms "non-contact cooling water" and "blow-down" are defined as per 40 CFR 401.11(m) and (n).

(II) "Non-contact cooling water" means water used for cooling that does not come into direct contact with any raw material, intermediate product, waste product or finished product.

(III) "Blow-down" means the minimum discharge of recirculating water for the purpose of discharging materials contained in the water, the further buildup of which would cause concentration in amounts exceeding limits established by best engineering practice.

(B) Permits shall be authorized for discharges of water that has been used for once-through non-contact cooling purposes based upon a finding that the returned water does not contribute to the loading of salts or the concentration of salts in the waters of the receiving stream in excess of a de minimis amount.

(C) This provision shall not supplant nor supersede any other water quality standard of the receiving stream adopted pursuant to the Clean Water Act, including but not limited to impairment of designated uses of the stream as established by the governing water quality authority having jurisdiction over the waters of the receiving stream.

(D) Non-contact cooling water shall be distinguished from blow-down and blow-down or any commingling of once-through non-contact cooling water with another waste stream prior to discharge to the receiving stream must meet the requirements of section 61.8(2)(l)(i).

(E) Where "no-salt" discharge is determined not to be practicable the Division shall, in determining permit conditions, consider:

(I) The impact of the total proposed salt discharge of each alternative on the lower main stem in terms of both tons per year and concentration.

(II) The costs per ton of salt removed from the discharge for each plan alternative.

(III) The compatibility of state water laws with each alternative.

(IV) The capability of minimizing the discharge of salt.

(V) The localized impact of the discharge.

(a) Description of water rights, including beneficial uses, diversions, and consumptive use quantities.

(b) Description of alternative water supplies, including provisions for water reuse, if any.

(c) Description of quantity and quality of the proposed discharge.

(d) Description of how salts removed from the discharge shall be disposed of to prevent their entering surface waters or ground water aquifers.

(e) Technical feasibility of the alternatives.

(f) Total construction, operation, and maintenance costs; and costs in dollars per ton of salt removed from the discharge.

(g) Closure plans to ensure termination of any proposed discharge at the end of the economic life of the project.

(i) Such information as the permitting authority may deem necessary.

(vi) Municipal Discharges

(A) Municipal discharges to any portion of the Colorado River stream system shall be allowed an incremental increase in salinity of 400 mg/l or less above the flow weighted averaged salinity of the intake water supply. The maximum incremental increase requirement, and the requisite demonstration that it is not practicable to meet the incremental increase requirement, may be waived in those cases where the salt load reaching the mainstem of the Colorado River is less than one ton per day or 366 tons per year, whichever is more appropriate. Evaluation will be made on a case-by-case basis. The following addresses additional cases where meeting the incremental increase requirement for municipal discharges may be deemed not to be practicable.

(I) The Division may permit a discharge in excess of the 400 mg/l incremental increase, at the time of issuance or reissuance of a CDPS discharge permit, upon satisfactory demonstration by the permittee that it is not practicable to attain the 400 mg/l limit Demonstration by the applicant for a new permit must include information on the following factors relating to the potential discharge. Applicants for reissuance of a permit shall either submit a statement that their previous demonstration is still applicable or submit new information consistent with the following list describing any changed circumstances.

(a) A description of the municipal entity and facilities.

(b) A description of the quantity and salinity of intake water sources.

(c) A description of significant salt sources to the municipal wastewater collection system and identification of entities responsible for each source, if available.

(d) A description of water rights, including diversions and consumptive use quantities.

(e) A description of the wastewater discharge, covering location, receiving waters, quantity, salt load, and concentration of TDS.

(f) Alternative plans for minimizing the salt contribution from the municipal discharge. Alternative plans should include:

(i) A description of collection system salt sources and alternative means of control.

(ii) The cost of alternative plans, in dollars per ton, of salt removed from discharge.

(g) Such other information pertinent to demonstration of non-practicability as the Division may deem necessary.

(B) In determining what permit conditions shall be required, the Division shall consider the following criteria including, but not limited to:

(I) The practicability of achieving the 400 mg/l incremental increase.

(II) Where the 400 mg/l incremental increase is not determined to be practicable:

(a) The impact of the total proposed salt input of each alternative on the lower mainstem in terms of tons per year and concentration.

(b) The costs per ton of salt removed from the discharge for each alternative plan.

(c) The capability of minimizing the salt discharge.

(C) If, in the opinion of the Division, the database for the municipal wastewater discharge is inadequate, the permit will contain the requirement that the permittee monitor the water supply and the wastewater discharge for salinity. Such monitoring program shall be completed within 2 years and the discharger shall then present the information as specified above.

(D) All new and reissued CDPS permits for municipalities shall require monitoring of the concentration of the TDS of the intake water supply and the wastewater treatment plant effluent in accordance with the following guidelines:

Treatment Plant Design Flow	Monitoring Frequency	Type of Sample
<1.0MGD	Quarterly	Grab
1.0 - 5.0MGD	Monthly	Composite
5.0 - 50.0 MGD	Weekly	Composite
> 50.0 MGD	Daily	Composite

Analysis for salinity may be either as total dissolved solids (TDS) or by electrical conductivity where a satisfactory correlation with TDS has been established. The correlation should be based on a minimum of five different samples. Monitoring of the intake water supply may be at a reduced frequency where the salinity of the water supply is relatively uniform as demonstrated by a minimum of two years' worth of samples.

61.8(3)CONDITIONS OF PERMITS

(a) Nothing in any permit shall ever be construed to prevent or limit application of any emergency power of the Division.

(b) The conditions set forth in permits will implement, among other matters, procedures, requirements, and restrictions with respect to the following:

(i) Identification and address of the owner and operator and of the appropriate contact individual of the activity, facility, process, feedlot, or municipality to be permitted.

(ii) Location, quantity and quality characteristics of the permitted discharge. The Division shall specify average and maximum daily quantitative limitations for the level of pollutants in the authorized discharge in terms of weight, where applicable or, as in the case of flow, pH, temperature, radiation and any other pollutants not appropriately expressed by weight, in other appropriate terms. The Division may, in its discretion, in addition to the quantitative limitations by weight, specify other limitations, such as average or maximum concentrations;

(iii) Effluent limitations, standards, and conditions in accordance with section 61.8 of this regulation and effluent limitation regulations at 5 CCR 1002-62, Regulation No. 62 et. seq. and conditions for treatment prior to discharge to a domestic wastewater treatment works;

(iv) Monitoring as well as record-keeping and reporting requirements described in section 61.8(4);

(v) Schedule of compliance where the Commission has adopted new standards, adopted temporary modifications, adopted revised standards that have become more stringent, or where the Division has developed new interpretations of existing standards including, but not limited to, implementation requirements through approved TMDLs and Wasteload Allocations and antidegradation reviews;

(vi) Submission of pertinent plans and specifications for the facility, process, or activity in accordance with a compliance schedule; and

(vii) Changes in plans and specifications for control facilities, if any, required by the Division as a condition for the issuance of the permit.

(c) Inspection and Entry. The Division has the power, upon presentation of proper credentials, to enter and inspect at any reasonable time and in a reasonable manner any property, premise, or place for the purpose of investigating any actual, suspected, or potential source of water pollution, or ascertaining compliance or noncompliance with any control regulation or any order promulgated by the Division. Such entry is also authorized for the purpose of inspecting and copying records required to be kept concerning any effluent source.

(i) In the making of such inspections, investigations, and determinations, the Division, insofar as practicable, may designate as its authorized representatives any qualified personnel of the Department of Agriculture. The Division may also request assistance from any other state or local agency or institution.

(ii) If such entry or inspection is denied or not consented to, the Division is empowered to and shall obtain, from the district or county court for the judicial district or county in which such property premise or place is located, a warrant to enter and inspect any such property, premise, or place prior to entry and inspection. The district and county courts of the state of Colorado are empowered to issue such warrants upon a proper showing of the need for such entry and inspection.

(iii) The Division shall split a sample with the permittee if requested to do so by the permittee.

(d) The permit shall not be transferred to another party without prior notification to the Division and requirements of sections 61.8(6) and 61.15 have been met.

(e) Whenever notification of any planned physical alterations or additions to the permitted facility is required pursuant to 61.8(5), the permittee shall furnish the Division such plans and specifications which the Division deems reasonably necessary to evaluate the effect on the discharge, the stream, or ground water. If the Division finds that such new or altered discharge might be inconsistent with the conditions of the permit, the Division shall require a new or revised permit application and shall follow the procedures specified in sections 61.5 through 61.6 and 61.15 of these regulations.

(f) Every permit issued shall contain such terms and conditions as the Division determines to be necessary to ensure compliance with applicable control regulations, water quality standards, and the state and federal Act.

(g) The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee as necessary to achieve compliance with the conditions of this permit. Proper operation and maintenance includes effective performance, and adequate laboratory and process controls, including appropriate quality assurance procedures. This provision requires the operation of backup or auxiliary facilities or similar systems which are installed by the permittee, only when necessary to achieve compliance with the conditions of the permit.

(h) The permittee shall take all reasonable steps to minimize or prevent any discharge or sludge use or disposal in violation of this permit which has a reasonable likelihood of adversely affecting human health or the environment.

(i) Bypass.

(i) Bypasses are prohibited and the Division may take enforcement action against the permittee for bypass, unless:

(A) bypass is unavoidable to prevent loss of life, personal injury, or severe property damage;

(B) there were no feasible alternatives to bypass such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate backup equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and

(C) proper notices were submitted in compliance with section 61.8(5).

(ii) "Severe property damage" as used in this subsection means substantial physical damage to the treatment facilities that causes them to become inoperable, or substantial and permanent loss of natural resources that can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

(iii) The permittee may allow a bypass to occur which does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance or to assure optimal operation. These bypasses are not subject to the provisions of paragraph (i) above.

(iv) The Division may approve an anticipated bypass, after considering adverse effects, if the Division determines that the bypass will meet the conditions specified in 61.8(3)(i)(i).

(j) Upset. An upset constitutes an affirmative defense to an action brought for noncompliance with effluent limitations if the permittee demonstrates, through properly signed, contemporaneous operating logs, or other relevant evidence, that:

(i) An upset occurred and the permittee can identify its cause(s);

(ii) The facility was being properly maintained at the time;

(iii) The permittee submitted proper notice of the upset in compliance with paragraph (d) of section 61.8(5) of this regulation; and

(iv) The permittee complied with any remedial measures required under paragraph (h) of this section.

In addition to the demonstration required above, a permittee who wishes to establish the affirmative defense of upset for a violation of effluent limitations based upon water quality standards shall also demonstrate through monitoring, modeling or other methods that the relevant standards were achieved in the receiving water.

In any enforcement proceeding the permittee seeking to establish the occurrence of an upset has the burden of proof.

(k) It shall not be a defense for a permittee in an enforcement action that it: would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit.

(l) Solids, sludges, or other pollutants removed in the course of treatment or control of waste waters shall be disposed in accordance with applicable state and federal regulations.

(m) If a toxic effluent standard or prohibition, including any applicable schedule of compliance specified, is established by regulation pursuant to Section 307 of the Federal Act for a toxic pollutant which is present in the permittee's discharge and such standard or prohibition is more stringent than any limitation upon such pollutant in the discharge permit, the Division shall institute proceedings to modify or revoke and reissue the permit to conform to the toxic effluent standard or prohibition.

(n) Where applicable, the Division shall specify a schedule of compliance leading to compliance with the Federal and State Acts. Such schedule shall require the permittee to achieve compliance as soon as possible, but not later than the applicable statutory deadline under the Federal and State Acts.

(i) If the schedule of compliance exceeds one (1) year, interim requirements and dates (not more than one (1) year apart) shall be set for achievement of interim goals. Either before or up to fourteen (14) days following each interim date and the final compliance date, the permittee shall provide the Division with written notice of the permittee's compliance or non-compliance with the interim or final requirements.

(ii) The Division, may, upon request of the permittee, revise or modify a schedule of compliance if the Division determines that the permittee has shown good and valid cause exists for such revision, and if within thirty (30) days following receipt of notice from the Division, the Regional Administrator does not object in writing.

(iii) The first permit issued to a new source or a new discharger shall contain a schedule of compliance only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised after commencement of construction but less than three years before commencement of the relevant discharge.

(iv) For recommencing dischargers, a schedule of compliance shall be available only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised less than three years before recommencement of the discharge.

(o) Filing of a timely and complete application shall cause the expired permit to continue in force to the effective date of the new permit. The permit's duration may be extended only through administrative extensions and not through interim modifications.

(p) The permit may contain requirements for design and implementation of a groundwater monitoring program, if necessary and reasonable to determine possible water quality impacts from the point source discharge.

(q) The permittee shall furnish to the Division, within a reasonable time, any information which the Division may request to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit, or to determine compliance with the permit. The permittee shall also furnish to the Division, upon request, copies of records required to be kept by the permit.

(r) The permit shall include best management practices to control or abate the discharge of pollutants when numeric effluent limitations are infeasible, when the practices are reasonably necessary to achieve effluent limitations and standards, or when authorized under 304(e) of the federal act for control of toxic pollutants and hazardous substances.

(s) For a privately owned treatment works, the Division may include any conditions expressly applicable to any user, as a limited co-permittee, that may be necessary in the permit issued to the treatment works to ensure compliance with applicable requirements under these regulations. Alternatively, the Division may issue separate permits to the treatment works and to its users, or may require a separate permit application from any user. The Division's decision to issue a permit with no conditions applicable to any user, to impose conditions on one or more users, to issue separate permits, or to require separate applications, and the basis for that decision, shall be stated in the rationale for the draft permit for the treatment works.

(t) The Division may include in the permit any conditions imposed in grants made to POTWs under Sections 201 and 204 of Clean Water Act that are reasonably necessary for the achievement of effluent limitations under 61.8(2).

(u) Notwithstanding 61.8(3)(r), the permit shall, where appropriate, include control measures, innovative solutions, or other management approaches to control or abate the discharge of pollutants or the impacts from the discharge of pollutants when numeric effluent limitations are infeasible, when reasonably necessary to achieve effluent limitations, or to achieve and maintain an applicable water quality standard or antidegradation requirement.

61.8(4)MONITORING, RECORDING AND REPORTING

(a) Any discharge authorized by a discharge permit may be subject to such monitoring, record-keeping, and reporting requirements as may be reasonably required in writing by the Division, including the requirements concerning the installation, use and maintenance of monitoring equipment or methods in accordance with standard procedures and methods established by the Division.

(i) Where permit effluent limitations or reporting requirements are set below the PQL, discharge permits will contain corresponding reporting levels based on the PQLs established pursuant to this regulation at section 61.8(2)(m).

(ii) In lieu of PQLs identified in section 61.8 , the permittee may request permit amendment to incorporate a site specific, or discharge specific PQL which has been developed in accordance with section 61.8(2)(m).

(iii) At the time of permit renewal, the Division shall evaluate any existing site specific or discharge specific PQLs and may require demonstration of current suitability of that PQL by the permittee.

(b) The owner or operator of any facility, process, or activity from which a discharge of pollutants is made into state waters or into any domestic wastewater treatment works shall according to standard procedures and methods prescribed by the Division in a permit:

(i) establish and maintain records;

(ii) make reports;

(iii) install, calibrate, use and maintain monitoring methods and equipment, including biological and indicator pollutant monitoring methods;

(iv) sample discharges; and

(v) provide additional reasonably available information relating to discharges into domestic wastewater treatment works.

(c) To assure compliance with permit limitations, the following shall be monitored by the permittee:

(i) the concentration (or other measurement specified in the permit) for each pollutant limited in the permit; and

(ii) the volume of effluent discharged from each outfall.

(iii) Other measurements as appropriate.

(d) All permits shall specify required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity including, when appropriate, continuous monitoring. Monitoring results required by the permit shall be reported on a discharge monitoring report (DMR) or other forms provided or specified by the Division. DMRs shall be submitted electronically using the eDMR system unless a waiver from eDMR reporting requirements is granted by the Division. The Division may also require that additional information be submitted electronically, but must identify an available method for submission of such information and where feasible, minimize duplicate reporting. The term "eDMR" refers to an electronic DMR submitted using the netDMR system maintained by EPA, or its successor.

(i) Permanent waivers. Permanent waivers will only be granted by the Division if the permittee submits a written request demonstrating that it does not have access to electronic reporting because it is a member of a religious community that chooses not to use certain modern technologies associated with electronic reporting.

(ii) Temporary waivers. Temporary electronic reporting waivers will be granted at the discretion of the Division upon request of the permittee. The Division's approval or denial of the request for temporary waiver will be provided in writing within ten days and based on the information provided in the application. A waiver granted by the Division that extends beyond the length of the original permit term will remain in effect through the administrative extension of a permit, but not longer than five years. The Division may in its discretion grant additional temporary electronic reporting waivers for the same permit, but each waiver may not exceed five years in length.

(iii) Episodic waivers. Episodic waivers from electronic reporting for sixty days or less may be granted by the Division at the Division's discretion for emergencies, situations beyond the permittee's control, and system outages. If the delay is due to a system outage or a situation internal to the Division that lasts a week or more, late reporting violations will be waived for DMRs submitted electronically within one week of resumption of normal system operation for the missed DMR(s) that were due during the outage. Notification of the episodic waiver will be posted on the Division's website. The permittee may use the DMR forms provided by the Division at the issuance of their permit to submit the DMR(s) due during the outage. If the delay is due to an emergency or other situation beyond the control of the permittee, the permittee shall submit a request for an episodic waiver.

(e) To assure compliance with the permit, domestic wastewater treatment works, in addition to the requirements of paragraphs (c)(i) and (c)(ii) above shall monitor, at the discretion of the Division, the following:

(i) interceptor flow(s) at specific locations;

(ii) the number of building permits issued and/or new sewer taps contracted for; and

(iii) process control parameters and management and process control strategies employed by the owner and operator to ensure that the capacity of the treatment works to remove pollutants as specified in the permit is not exceeded and that the permit limitations and conditions are consistently met.

(f) Calculations for all limitations that require the averaging of measurements shall utilize an arithmetic mean unless otherwise specified by the Division in the permit.

(g) The permittee shall provide access to the Division to sample the discharge at a point after the final treatment process but prior to the discharge mixing with state waters upon presentation of proper credentials.

(i) If the permittee monitors at the point of discharge any pollutant limited by the permit more frequently than required by the permit, using approved test procedures or as specified in the permit, the result of this monitoring shall be included in the calculation and reporting of data to the Division.

(h) Any records of monitoring activities and results shall include for all samples:

(i) The date, type, exact place, and time of sampling or measurements;

(ii) The individual(s) who performed the sampling or measurements;

(iii) The date(s) analyses were performed;

(iv) The individual(s) who performed the analyses;

(v) The analytical techniques or methods used; and

(vi) The results of such analyses.

(i) All sampling shall be performed by the permittee according to sufficiently sensitive test procedures required by 40 C.F.R. 122.44(i)(1)(iv); or methods approved by the Division, in the absence of a method specified in or approved pursuant to 40 C.F.R. Part 136.

(j) The permittee shall retain for a minimum of three (3) years records of all monitoring information, including all original strip chart recordings for continuous monitoring instrumentation, all calibration and maintenance records copies of all reports required by this permit and records of all data used to complete the application for this permit. This period of retention shall be extended during the course of any unresolved litigation regarding the discharge of pollutants by the permittee or when requested by the Division or Regional Administrator.

(k) For all permittees monitoring, recording, and reporting requirements of discharges under the permit shall be as specified by the Division. Reporting shall be as frequent as the Division shall reasonably determine to be necessary.

(l) All reports required by permits and any other report or information submitted to the Division shall be signed and certified in accordance with the signature and certification requirements set forth in section 61.4 . Falsification and tampering of information may result in criminal liability pursuant to section 25-8-610 C.R.S.

(m) Reporting by municipal separate storm sewer systems. The operator of a large or medium municipal separate storm sewer system or a municipal separate storm sewer that has been designated by the Division under 61.3(2)(e)(vii) must submit an annual report by the anniversary of the date of the issuance of the permit for such system. The report shall include:

(i) The status of implementing the components of the stormwater management program that are established as permit conditions;

(ii) Proposed changes to the stormwater management programs that are established as permit condition. Such proposed changes shall be consistent with 61.4(3)(c)(ii)(D);

(iii) Revisions, if necessary, to the assessment of controls and the fiscal analysis reported in the permit application under 61.4(3)(c)(ii)(E) and (F);

(iv) A summary of data, including monitoring data, that is accumulated throughout the reporting year;

(v) Annual expenditures and budget for year following each annual report;

(vi) A summary describing the number and nature of enforcement actions, inspections, and public education programs; and

(vii) Identification of water quality improvements or degradation.

(n) Reporting for stormwater discharges associated with industrial activity.

(i) Requirements to report monitoring results for stormwater discharges associated with industrial activity that are subject to an effluent limitation guideline shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge but in no case less than once a year.

(ii) Requirements to report monitoring results for stormwater discharges associated with industrial activity (other than those addressed in 61.8(4)(o)(i)) shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge. At a minimum, a permit for such a discharge may require:

(A) The discharger to conduct an annual inspection of the facility site to identify areas contributing to a stormwater discharge associated with industrial activity and evaluate whether measures to reduce pollutant loadings identified in a stormwater pollution prevention plan are adequate and properly implemented in accordance with the terms of the permit or whether additional control measures are needed;

(B) The discharger to maintain for a period of three years a record summarizing the results of the inspection and a certification that the facility is in compliance with the plan and the permit, and identifying any incidents of non-compliance;

(C) Such report and certification be signed in accordance with 61.4(1)(e)and(f));

(D) Permits for stormwater discharges associated with industrial activity from inactive mining operations may, where annual inspections are impracticable, require certification once every three years by a Registered Professional Engineer that the facility is in compliance with the permit, or alternative requirements.

(o) Permits shall require that the permittee report all instances of noncompliance at least annually.

61.8(5)NOTIFICATION REQUIREMENTS

(a) The permittee shall give advance notice to the Division of any planned changes in the permitted facility or activity that may result in noncompliance with permit requirements.

(b) Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule in the permit shall be submitted no later than fourteen (14) days following each scheduled date, unless otherwise provided by the Division.

(c) If the permittee knows in advance of the need for a bypass, the permittee shall submit prior notice, if possible, at least ten (10) days before the date of the bypass.

(d) The permittee shall report the following circumstances, orally, within twenty-four (24) hours of becoming aware of the circumstances, and, in writing, as provided in paragraph (e) of this section.

(i) Circumstances leading to any noncompliance that may endanger health or the environment;

(ii) Circumstances leading to any unanticipated bypass that exceeds any effluent limitation in the permit;

(iii) Circumstances leading to any upset which exceeds any effluent limitation in the permit; and

(iv) Any violation of a maximum daily discharge limitation for any of the pollutants listed by the Division in the permit to be reported within twenty-four (24) hours. This list shall include any toxic pollutant or hazardous substance, or any pollutant specifically identified as the method to control any toxic pollutant or hazardous substance.

(e) The permittee shall report to the Division, in writing, any circumstance subject to the 24-hour notification requirement described in paragraph (d) of this section. The written report shall be submitted to the Division within five (5) working days of the time the permittee becomes aware of said circumstances. The written report shall contain a description of the noncompliance and its cause; the period of noncompliance; including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent recurrence of the noncompliance.

(f) The permittee shall report all instances of noncompliance not subject to the notification requirements described in paragraphs (c) and (d) of this section, at the time the monitoring reports (DMR) required by section 61.8 are submitted. The reports shall contain the information listed in paragraph (e) of this section.

(g) The permittee shall notify the Division, in writing, thirty (30) days in advance of a proposed transfer of permit as provided in section 61.8(6) of this regulation.

(h) The permittee shall notify the Division, in writing, of any planned physical alterations or additions to the permitted facility. Notice is required only when:

(i) The alteration or addition could significantly change the nature or increase the quantity of pollutants discharged; or

(ii) The alteration or addition results in a significant change in the permittee's sludge use or disposal practices, and such alteration, addition, or change may justify the application of permit conditions that are different from or absent in the existing permit, including notification of additional use or disposal sites not reported pursuant to an approved land application plan.

(i) Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Division, the permittee shall promptly submit such facts or information.

(j) The permittee's notification of all anticipated noncompliance does not stay any permit condition.

(k) All existing manufacturing, commercial, mining, and silvicultural dischargers must notify the Division as soon as they know or have reason to believe:

(i) That any activity has occurred or will occur which would result in the discharge, on a routine or frequent basis, of any toxic pollutant which is not limited in the permit, if that discharge will exceed the highest of the following "notification levels":

(A) One hundred micrograms per liter (100 µg/l);

(B) Two hundred micrograms per liter (200 µg/l) for acrolein and acrylonitrile; five hundred micrograms per liter (500 µg/l) for 2.4-dinitrophenol and 2-methyl-4.6-dinitrophenol; and one milligram per liter (1 mg/l) for antimony;

(C) Five (5) times the maximum concentration value reported for that pollutant in the permit application in accordance with section 61.4(2)(f).

(D) The level established by the Division in accordance with 40 C.F.R. 122.44(f).

(ii) That any activity has occurred or will occur which would result in any discharge, on a non-routine or infrequent basis, of a toxic pollutant which is not limited in the permit, if that discharge will exceed the highest of the following "notification levels":

(A) Five hundred micrograms per liter (500 µg/l);

(B) One milligram per liter (1 mg/l) for antimony; and

(C) Ten (10) times the maximum concentration value reported for that pollutant in the permit application in accordance with section 61.4(2)(f).

(D) The level established by the Division in accordance with 40 C.F.R. 122.44(f).

61.8(6)TRANSFER OF PERMITS

(a) Except as provided in paragraph (b) of this section, a permit may be transferred by a permittee only if the permit has been modified or revoked and reissued as provided in section 61.8 , to identify the new permittee and to incorporate such other requirements as may be necessary under the Federal Act, the Act, or these regulations.

(b) A permit may be automatically transferred to a new permittee if:

(i) The current permittee notifies the Division in writing at least 30 days in advance of the proposed transfer date in paragraph (b)(ii) of this section;

(ii) The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage and liability between them; and

(iii) The Division does not notify the existing permittee and the proposed new permittee of its intent to modify or revoke and reissue the permit.

61.8(7)TERMS AND CONDITIONS APPLICABLE TO DOMESTIC WASTEWATER TREATMENT WORKS

(a) If the permitted discharge is from a domestic wastewater treatment works, whenever deemed necessary to assure compliance with the Federal Act, the Act or State regulations, the Division shall include the following as permit conditions:

(i) The permittee shall require pretreatment (if pretreatment standards are promulgated by the State or EPA) of effluent from industrial, governmental, or commercial activities before such effluent is received into the gathering and collection system of the permittee as required in the Pretreatment Regulations;

(ii) The permittee shall include specified terms and conditions of its permit in all contracts for receipt by the permittee of any effluent not required to be received by the domestic permittee;

(iii) The permittee shall initiate engineering and financial planning for the expansion of the domestic wastewater treatment works whenever throughput and treatment reaches eighty (80) percent of the design capacity;

(iv) The permittee shall commence construction of such domestic wastewater treatment works expansion whenever throughput and treatment reaches ninety-five (95) percent of the design capacity or, in the case of a municipality, either commence such construction or cease issuance of building permits within such municipality until such construction is commenced; except that building permits may continue to be issued for any construction which would not have the effect of increasing the input of wastewater to the sewage treatment works of the municipality involved. Throughput and treatment shall be determined by the Division;

(v) Where unusual circumstances (e.g. extraordinary storm event, broken sewer line, unanticipated or unapproved loading) result in throughput and treatment exceeding 80% of design capacity, the permittee may, in lieu of initiating planning for expansion of the domestic wastewater treatment works, submit a report to the Division that demonstrates to the Division's satisfaction that it is extremely unlikely that the event will reoccur, or even if the event were to reoccur, 95% of the design capacity would not be exceeded.

(vi) Where unusual circumstances (e.g. extraordinary storm event, broken sewer line, unanticipated or unapproved loading) result in throughput and treatment exceeding 95% of design capacity, the permittee may, in lieu of initiating construction of expansion of the domestic wastewater treatment works, submit a report to the Division that demonstrates to the Division's satisfaction that the domestic wastewater treatment works was in compliance at all times during the event and that it is extremely unlikely that the event will reoccur.

(vii) Where the permittee submits a report pursuant to (v) or (vi), above, and the Division, upon review of such report, determines in writing to the permittee that the report does not support the required findings, the permittee shall initiate planning and/or construction of the domestic wastewater treatment works, as appropriate.

(viii) Inclusion of the requirement authorized by paragraph (iii) above shall be presumed unnecessary to assure compliance upon a showing that the area served by a domestic wastewater treatment works has a stable or declining population; but this provision shall not be construed as preventing periodic review by the Division should it be felt that growth is occurring or will occur in the area.

(ix) The permittee shall install a flow measuring device(s) to determine the throughput and effluent quantities of the wastewater system. The flow measuring device(s) must comply with the requirements for the State effluent limitations adopted in 5 CCR 1002-62, Regulation No. 62.

(b) Any condition set forth in the approval of the site location may become a condition of the permit, if identified specifically in the permit. Any site approval condition that is included in a permit pursuant to these regulations shall only be subject to enforcement through the Colorado Water Quality Control Act, section 25-8-101 C.R.S., et seq.

(c) The permittee shall provide adequate notice to the Division of the following:

(i) Any new introduction of pollutants into the domestic wastewater treatment works from an indirect discharger which would be subject to Section 301 and 306 of the Clean Water Act if it were directly discharging those pollutants. A new introduction of pollutants for purposes of this sub-paragraph is the introduction of any pollutant for which there is no effluent limitation or monitoring requirement in the domestic wastewater treatment works permit; and

(ii) Any substantial change in the volume or character of pollutants being introduced into that domestic wastewater treatment works by a source introducing pollutants into the domestic wastewater treatment works at the time of issuance of the permit. A substantial change, for purposes of this subsection, is a level of change that has a reasonable probability of affecting of the permittee's ability to comply with its permit conditions or to cause an exceedance of receiving stream water quality standards.

(iii) For purposes of this paragraph, adequate notice shall include information on the quality and quantity of effluent introduced into the domestic wastewater treatment works, and any anticipated impact of the change on the quantity or quality of effluent to be discharged from the domestic wastewater treatment works. Notice under this paragraph shall be provided within thirty (30) days of the time when the permittee knows or should have reasonably known that the new introduction or substantial change has occurred.

(d) The permittee shall require any industrial user of the treatment works to comply with the requirements of sections 63.8 through 63.13 of the Pretreatment Regulations, Regulation No. 63. At the discretion of the Division, where necessary to insure compliance with the permit, domestic wastewater treatment works' permittees shall develop and implement a pretreatment program. Pretreatment program requirements are defined at sections 9 and 10 of the Pretreatment Regulation, Regulation No. 63.

(e) For all domestic wastewater treatment works, the permit shall contain conditions requiring the proper disposal of sludge including biosolids, in accordance with State and Federal regulations.

61.8(8)PERMIT MODIFICATION, SUSPENSION, REVOCATION AND REISSUANCE AND TERMINATION

(a) A permit may be modified, suspended, or terminated in whole or in part during its term for reasons determined by the Division including, but not limited to, the following:

(i) Violation of any terms or conditions of the permit;

(ii) Obtaining a permit by misrepresentation or failing to disclose any fact which is material to the granting or denial of a permit or to the establishment of terms or conditions of the permit; or

(iii) Materially false or inaccurate statements or information in the permit application or the permit.

(iv) A determination that the permitted activity endangers human health or the classified or existing uses of state waters and can only be regulated to acceptable levels by permit modifications or termination.

(b) A permit may be modified in whole or in part for the following causes, provided that such modification complies with the provisions of section 61.10:

(i) There are material and substantial alterations or additions to the permitted facility or activity which occurred after permit issuance which justify the application of permit conditions that are different or absent in the existing permit.

(ii) The Division has received information that was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and which would have justified the application of different permit conditions at the time of issuance. For general permits, this cause includes information indicating that cumulative effects on the environment are unacceptable. For permits issued to new sources or new dischargers, this cause includes information derived from effluent testing required under section 61.4 . This provision allows a modification of the permit to include conditions that are less stringent than the existing permit only to the extent allowed under section 61.10.

(iii) The standards or regulations on which the permit was based have been changed by promulgation of amended standards or regulations or by judicial decision after the permit was issued. Permits may be modified during their terms for this cause only as follows:

(A) The permit condition requested to be modified was based on a promulgated effluent limitation guideline, EPA approved water quality standard, or an effluent limitation set forth in 5 CCR 1002-63, Regulation No. 63, et seq.; and

(B) EPA has revised, withdrawn, or modified that portion of the regulation or effluent limitation guideline on which the permit condition was based, or has approved a Commission action with respect to the water quality standard or effluent limitation on which the permit condition was based; and

(C) The modification takes place after the notice of final action by which the EPA effluent limitation guideline, water quality standard, or effluent limitation is revised, withdrawn, or modified; or

(D) For judicial decisions, a court of competent jurisdiction has remanded and stayed EPA promulgated regulations or effluent limitation guidelines, if the remand and stay concern that portion of the regulations or guidelines on which the permit condition was based and a request is filed by the permittee in accordance with this Regulation, within ninety (90) days of judicial remand.

(iv) The Division determines that good cause exists to modify a permit condition because or events over which the permittee has no control and for which there is no reasonable available remedy.

(v) Where the Division has completed, and EPA has approved, a total maximum daily load (TMDL) which includes a wasteload allocation for the discharge(s) authorized under the permit.

(vi) The permittee has received a variance.

(vii) When required to incorporate applicable toxic effluent limitation or standards adopted pursuant to section 307(a) of the Federal act.

(viii) When required by the reopener conditions in the permit

(ix) As necessary under 40 C.F.R. 403.8(e), to include a compliance schedule for the development of a pretreatment program.

(x) When the level of discharge of any pollutant that is not limited in the permit exceeds the level that can be achieved by the technology-based treatment requirements appropriate to the permittee under section 61.8(2)(a).

(xi) To establish a pollutant notification level required in section 61.8(5).

(xii) To correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining permit conditions, to the extent allowed in section 61.10.

(xiii) When required by a permit condition to incorporate a land application plan for beneficial reuse of biosolids, to revise an existing land application plan, or to add a land application plan.

(xiv) When another State whose waters may be affected by the discharge has not been notified.

(xv) For any other cause provided in section 61.10.

(c) At the request of a permittee or any other interested person, the Division may modify or terminate a permit and issue a new permit if the following conditions are met:

(i) The Regional Administrator has been notified of the proposed modification or termination and does not object in writing within thirty (30) days of receipt of notification,

(ii) The Division finds that the permittee or interested person has shown reasonable grounds consistent with the Federal and State statutes and regulations for such modifications or termination;

(iii) Requirements of section 61.15 have been met, and

(iv) Requirements of public notice have been met.

(d) For permit modification, termination, or revocation and reissuance, the Division may request additional information from the permittee. In the case of a modified permit, the Division may require the submission of an updated application. In the case of revoked and reissued permit, the Division shall require the submission of a new application.

(e) Permit modification (except for minor modifications), termination or revocation and reissuance actions shall be subject to the requirements of sections 61.5 , 61.5 , 61.6 , 61.7 and 61.15 . The Division shall act on a permit modification request, other than minor modifications requests, within 180 days of receipt thereof. Except for minor modifications, the terms of the existing permit govern and are enforceable until the newly issued permit is formally modified or revoked and reissued following public notice.

(f) Upon consent by the permittee, the Division may make minor permit modifications without following the requirements of sections 61.5 , 61.5 , 61.7 and 61.15 of these regulations. Minor modifications to permits are limited to:

(i) Correcting typographical errors; or

(ii) Increasing the frequency of monitoring or reporting by the permittee; or

(iii) Changing a date for a special study or an interim date in a schedule of compliance, provided the new date of compliance is not more than 120 days after the date specific in the existing permit and does not interfere with attainment of the final compliance date requirement; or

(iv) Allowing for a transfer in ownership or operational control of a facility where the Division determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage and liability between the current and new permittees has been submitted to the Division; or

(v) Changing the construction schedule for a discharger which is a new source, but no such change shall affect a discharger's obligation to have all pollution control equipment installed and in operation prior to discharge; or

(vi) Deleting a point source outfall when the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits; or

(vii) Incorporating conditions of a POTW pretreatment program that has been approved in accordance with the procedures in 40 CFR 403.11 (or a modification thereto that has been approved in accordance with the procedures in 40 CFR 403.18) as enforceable conditions of the POTW's permits.

(g) When a permit is modified, only the conditions subject to modification are reopened. If a permit is revoked and reissued, the entire permit is reopened and subject to revision and the permit is reissued for a new term.

(h) The filing of a request by the permittee for a permit modification, revocation and reissuance or termination does not stay any permit condition.

(i) All permit modifications and reissuances are subject to the antibacksliding provisions set forth in 61.10 (e) through (i).

(j) If cause does not exist under this section, the Division shall not modify, terminate or revoke and reissue the permit.

61.8(9)EFFECT OF PERMIT ISSUANCE

(a) The issuance of a permit does not convey any property rights or any exclusive privilege.

(b) The issuance of a permit does not authorize any injury to person or property or any invasion of personal rights, nor does it authorize the infringement of federal, state, or local laws or regulations.

(c) Except for any toxic effluent standard or prohibition imposed under Section 307 of the Federal act or any standard for biosolids use or disposal under Section 405(d) of the Federal act, compliance with a permit during its term constitutes compliance, for purposes of enforcement, with Sections 301, 302, 306, 318, 403, and 405(a) and (b) of the Federal act. However, a permit may be modified, revoked and reissued, or terminated during its term for cause as set forth in section 61.8(8).

(d) Compliance with a permit condition which implements a particular standard for biosolids use or disposal shall be an affirmative defense in any enforcement action brought for a violation of that standard for biosolids use or disposal.

61.8(10)DISCHARGES TO DITCHES AND OTHER MAN-MADE CONVEYANCE STRUCTURES

(a) A permit for a point source discharge to a ditch or other man-made conveyance structure shall include such provisions as are necessary to:

(i) protect agricultural, domestic, industrial, and municipal beneficial uses made of the waters, which use or uses were decreed and in existence prior to the inception of the discharge.

(ii) assure compliance with any applicable water quality standards for waters of the state that may be affected by the discharge.

(b) Issuance of a permit for a point source discharge to a ditch or other man-made conveyance structure does not relieve the applicant from responsibility to acquire any property rights necessary to conduct its discharge into and through such structure and does not itself create any such property rights. Such statement shall be included in each applicable permit.

(c) Only that portion of the discharge (flow rates, quality and quantity) in existence prior to a subsequent decreed and existing use (flow rate, quality, quantity), and any changes having only a de minimis effect upon any such use, shall be exempt from requirements necessary for the protection of that subsequent decreed and existing use.

61.8(11)CONDITIONS FOR PHASE II MUNICIPAL STORMWATER PERMITS

(a) An individual permit or general stormwater permit certification issued to a regulated small MS4 shall contain the following requirements, at a minimum:

(i) At a minimum, the MS4 permit will require that the regulated small MS4 develop, implement, and enforce a stormwater management program designed to reduce the discharge of pollutants from the MS4 to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the Colorado Water Quality Control Act (25-8-101 et seq., C.R.S.). The stormwater management program must include the minimum control measures described in subsection (ii) of this section, unless the small MS4 applies for a permit under 61.4(3)(c). Implementation of BMPs consistent with the provisions of the stormwater management program required pursuant to this section and the provisions of the permit required pursuant to subsection (ii) constitutes compliance with the standard of reducing pollutants to the MEP.

The initial permit for the regulated small MS4 will specify a time period of up to five (5) years from the date of permit issuance for development and implementation of the program.

(ii) Minimum control measures (management programs).

(A) Public education and outreach on stormwater impacts. The permittee must implement a public education program to:

(I) distribute educational materials to the community or conduct equivalent outreach activities about the impacts of stormwater discharges on water bodies and the steps that the public can take to reduce pollutants in stormwater runoff; and

(II) inform businesses and the general public of impacts associated with illegal discharges and improper disposal of waste.

(B) Public involvement/participation. The permittee must, at a minimum, comply with State and local public notice requirements when implementing the stormwater management programs required under the permit. Notice of all public hearings should be published in a community publication or newspaper of general circulation, to provide opportunities for public involvement that reach a majority of citizens through the notification process.

(C) Illicit discharge detection and elimination. The permittee must develop, implement and enforce a program to detect and eliminate illicit discharges (as defined at 61.2) into the permittee's small MS4.

(I) The permittee must:

(a) Develop, if not already completed, a storm sewer system map, showing the location of all municipal storm sewer outfalls and the names and location of all state waters that receive discharges from those outfalls;

(b) To the extent allowable under State or local law, effectively prohibit, through ordinance or other regulatory mechanism, non-stormwater discharges into the storm sewer system, and implement appropriate enforcement procedures and actions; and

(c) Develop and implement a plan to detect and address non-stormwater discharges, including illicit discharges and illegal dumping, to the system. The plan must include the following three components: procedures for locating priority areas likely to have illicit discharges; procedures for tracing the source of an illicit discharge; and procedures for removing the source of the discharge.

(II) The permittee needs to address the following categories of non-stormwater discharges or flows (i.e., illicit discharges) only if the permittee identifies them as significant contributors of pollutants to the permittee's small MS4: landscape irrigation, lawn watering, diverted stream flows, irrigation return flow, rising ground waters, uncontaminated ground water infiltration (as defined at 40 CFR 35.2005(20)), uncontaminated pumped ground water, springs, flows from riparian habitats and wetlands, water line flushing, discharges from potable water sources, foundation drains, air conditioning condensation, water from crawl space pumps, footing drains, individual residential car washing, dechlorinated swimming pool discharges, and street wash water (discharges or flows from fire fighting activities are excluded from the effective prohibition against non-stormwater and need only be addressed where they are identified as significant sources of pollutants to state waters).

(D) Construction site stormwater runoff control.

(I) The permittee must develop, implement, and enforce a program to reduce pollutants in any stormwater runoff to the MS4 from construction activities that result in a land disturbance of greater than or equal to one acre. Reduction of pollutants in stormwater discharges from construction activity disturbing less than one acre must be included in the program if that construction activity is part of a larger common plan of development or sale that would disturb one acre or more. If the Division waives requirements for stormwater discharges associated with a small construction activity in accordance with 61.3(2)(f)(ii)(B), the permittee is not required to develop, implement, and/or enforce its program to reduce pollutant discharges from such a site.

(II) The program must be developed and implemented to assure adequate design, implementation, and maintenance of BMPs at construction sites within the MS4 to reduce pollutant discharges and protect water quality. The program must include the development and implementation of, at a minimum:

(a) An ordinance or other regulatory mechanism to require erosion and sediment controls, as well as sanctions to ensure compliance, to the extent allowable under State or local law;

(b) Requirements for construction site operators to implement appropriate erosion and sediment control BMPs;

(c) Requirements for construction site operators to control waste such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality;

(d) Procedures for site plan review which incorporate consideration of potential water quality impacts;

(e) Procedures for receipt and consideration of information submitted by the public, and

(f) Procedures for site inspection and enforcement of control measures.

(E) Post-construction stormwater management in new development and redevelopment

(I) The permittee must develop, implement, and enforce a program to address stormwater runoff from new development and redevelopment projects that disturb greater than or equal to one acre, including projects less than one acre that are part of a larger common plan of development or sale, that discharge into the small MS4. The program must ensure that controls are in place that would prevent or minimize water quality impacts.

(II) The permittee must:

(a) Develop and implement strategies which include a combination of structural and/or non-structural BMPs appropriate for the community;

(b) Use an ordinance or other regulatory mechanism to address postconstruction runoff from new development and redevelopment projects to the extent allowable under State or local law; and

(c) Ensure adequate long-term operation and maintenance of BMPs.

(F) Pollution prevention/good housekeeping for municipal operations.

(I) The permittee must develop and implement an operation and maintenance program that includes an employee training component and has the ultimate goal of preventing or reducing pollutant runoff from municipal operations. The program must also inform public employees of impacts associated with illegal discharges and improper disposal of waste from municipal operations. The program must prevent and/or reduce stormwater pollution from facilities such as streets, roads, highways, municipal parking lots, maintenance and storage yards, fleet or maintenance shops with outdoor storage areas, salt/sand storage locations and snow disposal areas operated by the permittee, and waste transfer stations, and from activities such as park and open space maintenance, fleet and building maintenance, street maintenance, new construction of municipal facilities, and stormwater system maintenance, as applicable.

(iii) If an existing qualifying local program requires the permittee to implement one or more of the minimum control measures of section 61.8 , the Division may include conditions in the permit that direct the permittee to follow that qualifying program's requirements rather than the requirements of section 61.8 . A qualifying local program is a local or State municipal stormwater management program that imposes, at a minimum, the relevant requirements of section 61.8 . The permit may be reopened and modified to include the requirement to implement a minimum control measure if the other entity fails to implement it.

(iii) If the permittee obtains coverage under a general permit, the permittee is not required to meet any measurable goal(s) identified in the permittee's application in order to demonstrate compliance with the minimum control measures in section 61.8 unless, prior to submitting the permittee's application, the Division or EPA has provided or issued a menu of BMPs that addresses each such minimum measure. Even if no regulatory authority issues the menu of BMPs, however, the permittee still must comply with other requirements of the general permit, including good faith implementation of BMPs designed to comply with the minimum measures. The permittee may choose BMPs from the menu or select others that satisfy the minimum control measures.

(iv) The permittee must comply with any more stringent effluent limitations in the permit, including permit requirements that modify, or are in addition to, the minimum control measures, based on an approved total maximum daily load (TMDL) or equivalent analysis. The Division may include such more stringent limitations based on a TMDL or equivalent analysis that determines such limitations are needed to protect water quality.

(v) The permittee must comply with other applicable CDPS permit requirements, standards and conditions established in the individual or general permit, developed consistent with the provisions of section 61.8, as appropriate.

(vi) A permittee may rely on another entity to satisfy its CDPS permit obligations to implement a minimum control measure, or component thereof, if:

(A) The other entity, in fact, implements the control measure;

(B) The particular control measure, or component thereof, is at least as stringent as the corresponding CDPS permit requirement; and

(C) The other entity agrees to implement the control measure on behalf of the permittee. In the reports that the permittee submits under subsection (viii)(C) of this section, it must also specify that the permittee relies on another entity to satisfy some of its permit obligations. The permittee remains responsible for compliance with its permit obligations if the other entity fails to implement the control measure (or component thereof).

(vii) Evaluation and assessment.

(A) Evaluation. The permittee must evaluate program compliance, the appropriateness of its identified BMPs, and progress towards achieving its identified measurable goals. A summary of this evaluation shall be included in the permittee's annual report.

(B) Recordkeeping. The permittee must keep records required by the permit for at least three (3) years. The permittee must submit their records to the Division only when specifically asked to do so. The permittee must make the records, including a description of the permittee's stormwater management program, available to the public at reasonable times during regular business hours (see 61.5(4) for confidentiality provision). (The permittee may assess a reasonable charge for copying. The permittee may require a member of the public to provide advance notice.)

(C) Reporting. The permittee must submit annual reports to the Division for the permittee's first permit term. For subsequent permit terms, the permittee must submit reports in years two and four unless the Division requires more frequent reports. The permittee's report must include:

(I) The status of compliance with permit conditions, an assessment of the appropriateness of the permittee's identified BMPs and progress towards achieving the permittee's identified measurable goals for each of the minimum control measures;

(II) Results of information collected and analyzed, including monitoring data, if any, during the reporting period;

(III) A summary of the stormwater activities the permittee plans to undertake during the next reporting cycle;

(IV) A change in any identified BMPs or measurable goals for any of the minimum control measures; and

(V) Notice that the permittee is relying on another governmental entity to satisfy some of the permittee's permit obligations (if applicable).

(b) The Division may determine monitoring requirements for the permittee in accordance with State monitoring plans appropriate to the permittee's watershed. Participation in a group monitoring program is encouraged.

61.8(12)QUALIFYING LOCAL PROGRAMS

(a) For stormwater discharges associated with small construction activity identified in 61.3(2)(f)(ii)(A), the Division may include permit conditions that incorporate qualifying local erosion and sediment control program requirements by reference. A qualifying local erosion and sediment control program is one that includes:

(i) Requirements for construction site operators to implement appropriate erosion and sediment control best management practices;

(ii) Requirements for construction site operators to control waste such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality;

(iii) Requirements for construction site operators to develop and implement a stormwater management plan. (A stormwater management plan includes site descriptions, descriptions of appropriate control measures, copies of approved local requirements, maintenance procedures, inspection procedures, and identification of non-stormwater discharges); and

(iv) Requirements to submit a site plan for review that incorporates consideration of potential water quality impacts.

(b) For stormwater discharges from construction activity identified in 61.3(2)(e)(iii)(J), the Division may include permit conditions that incorporate qualifying local erosion and sediment control program requirements by reference. A qualifying local erosion and sediment control program is one that includes the elements listed in section (a) above, and any additional requirements necessary to achieve the applicable technology-based standards of "best available technology" and "best conventional technology" based on the best professional judgment of the permit writer.

5 CCR 1002-61.8

38 CR 01, January 10, 2015, effective 1/30/2015

38 CR 11, June 10, 2015, effective 6/30/2015

39 CR 17, September 10, 2016, effective 12/31/2016

39 CR 21, November 10, 2016, effective 12/31/2016

40 CR 07, April 10, 2017, effective 4/30/2017

41 CR 23, December 10, 2018, effective 12/30/2018

43 CR 10, May 25, 2020, effective 6/14/2020