5 Colo. Code Regs. § 1002-72.17
The provisions of sections 25?8?202(1)(c), (h) and (2); and 25?8?205; C.R.S., provide the specific statutory authority for adoption of the attached regulatory amendments. The Commission also adopted, in compliance with sections 24?4?103(4) C.R.S., the following statement of basis and purpose.
BASIS AND PURPOSE:
In 1988, the Water Quality Control Division and the Cherry Creek Basin Water Quality Authority recommended that the Water Quality Control Commission consider revising this control regulation for the purpose of:
The rationale for the change in section 4.2.5 is based on the conclusions of the Cherry Creek Basin Master Plan, which was approved by the Commission in 1985 but the recommended point source control strategy in that plan was not stated specifically in the control regulation.
The compliance date of October 1, 1988 for 50% removal of stormwater runoff source of phosphorus was not realistic in terms of the timeframe allowed for both construction of control structures and monitoring of their relative effectiveness. There is a lack of data to substantiate the effectiveness of recommended best management practices in the 1985 Master Plan. Until control structures can be built and monitored, and an extension of the compliance date in section 4.2.6 (2) appears reasonable.
Section 4.2.8 contained provisions which expressed the Commission's intent to review progress in controlling phosphorus within the Basin after the first two years of the control regulation being in effect. The two year review by the Commission has taken place. The intergovernmental agreement which formed the Cherry Creek Basin Authority in 1985 is no longer in effect because the Basin Authority is now authorized by legislation adopted by the General Assembly in 1988. Other statements in this section, paragraphs 3, 4, 5, and 6 were outdated or do not relate specifically to enforceable provisions of this control regulation and hence have been deleted.
New section 4.2.5 was added to address the concern raised by the Cherry Creek Basin Water Quality Authority that the Authority was not being provided adequate notice and opportunity to comment on compliance schedules for permits and enforcement actions involving dischargers in the Basin. The provision states that, where a discharger requests a compliance schedule in connection with permit issuance or renewal, the discharger must simultaneously notify the Authority of the request. The discharger also is required to submit evidence of the notification to the Division and to solicit comments on the compliance schedule from the Authority. With respect to compliance schedules referred to in this provision, the Division shall not take final action until at least 45 days after the date that notice of the request for a compliance schedule was provided to the Authority, unless comments from the Authority are received earlier. This provision does not include minor modifications to permits, which consist of such items as correcting typographical errors and changing interim dates in compliance schedules.
With regard to permit-based compliance schedules not requested by the discharger, these would be in the form of draft permits released to public notice by the Division. The normal public comment period for permits (except where a public meeting is held) is 30 days. Upon request by the Authority, however, the Division would extend that period to allow for comment by the Authority, as allowed by section 6.6.2 (5 CCR 1002 ?2).
An issue was raised at the hearing concerning notification of the Authority where the Division or discharger proposed a compliance schedule as part of a Division enforcement action, or resolution thereof. The Division expressed a concern regarding a set time limitation of 45 days as contained in section 4.2.5 , on the basis that this might unduly hamper the Division's ability to address enforcement situations. The Division made it clear at the hearing, however, that it would have no objection to the Authority being informed of such compliance schedules and would provide to the Authority a copy of enforcement-related orders containing such compliance schedules.
As revised, section 4.2.8 provides that the Commission is to receive an annual report regarding the activities of the Authority. At the hearing, the Authority agreed to prepare the annual report, so long as it is understood that it will contain the same level of detail as in the past. This is the Commission's understanding and intent.
Two minor changes have been made to section 4.2.2 . The definition of "Cherry Creek Basin" has been revised to refer to a map that will be incorporated into the regulation. Second, a definition of the term "Authority" has been added.
Finally, the title of the regulation has been shortened, for ease of reference.
5 CCR 1002-72.17