The provisions of sections 25-8-202(1) (i.5) and 25-8-205 C.R.S. provide the specific statutory authority for these regulatory amendments. The commission also adopted, in compliance with 24-4-103(4), C.R.S., the following statement of basis and purpose.
BASIS AND PURPOSE
The commission adopted revisions to this regulation to update procedures and requirements established by the EPA in the "Clean Water Act Section 401 Water Quality Certification Improvement Rule," 88 Fed. Reg. 66,558 (Sept. 27, 2023), as codified at 40 C.F.R. Part 21 ("2023 Rule") which went into effect in November 2023. The regulation was also updated to correct typographical errors and clarify language throughout. The 2023 Rule was promulgated to clarify and provide nationwide consistency for 401 certification procedures. The rule includes a requirement for pre-filing meetings, requirements for 401 certification requests, establishing a "reasonable period of time" for states to process certification requests in conjunction with the federal permitting agency, and details concerning certification decisions.
Section 82.1 - Purpose Section 82.1 was modified to reflect new vocabulary and certification decisions that are used in the 2023 Rule, and to add additional language that clarifies the purpose of Regulation 82. Also, the new language will direct potential applicants to Clean Water Policy 12 (Selection of Water Quality Best Management Practices for Regulation No. 82), where the "control measures" are located.
Section 82.2 - Definitions Section 82.2(2) was modified to ensure "402 Permit" refers to all permit types, both individual and general, to be consistent with the existing requirement in Section 82.3(A) that no federal license or permit is issued without the water quality certification required under Section 401 of the federal Act.Section 82.3 - Applicability, Scope, Incorporation by Reference The commission added "Incorporation by Reference" to the title of this section. The commission also added new Subsection (D) to include expiration dates of tier 1 and tier 2 projects five years after the certification was granted. Tier 1 and tier 2 projects do not always commence immediately after the issuance of an individual 404 permit. The standards and antidegradation designation can change for the relevant waterbody before construction begins on a project if there are longer delays. If the waterbody standards and/or designations change before construction begins, this can change the water quality impact analysis on which the original certification was based. It is unnecessary to apply the five-year expiration date to Tier 3 and Tier 4 projects because they are typically large water supply projects where the application is submitted after months or even years of coordination with the division. Tier 3 and Tier 4 projects require additional coordination and permitting steps among multiple regulatory authorities. The time required for this process means construction may not start within five (5) years of the date of a 401 certification, and if subject to an expiration date, the certification could expire before any meaningful data can be collected. Additionally, these projects have conditions that typically include reporting requirements and adaptive management provisions to continually evaluate potential changes in the impact a project might have on water quality, so no expiration date was adopted for Tier 3 and Tier 4 project certifications. It is also unnecessary to place expiration dates on FERC licensing projects due to the complexity and the longevity of these types of projects, similar to the reasoning previously stated for Tier 3 & Tier 4. Language was also included that allows tier 1 and tier 2 project applicants to request extensions to the 401 certification deadline. Applicants can receive an exemption from the expiration date, where there is a pending legal challenge relevant to the certification but need to contact the division to inform them of the legal challenge and its status. The commission also added a new subsection (E) that discusses incorporating references to federal regulations into Regulation 82 as required by the Administrative Procedure Act, section 24-4-103 (12.5), C.R.S.
The following language was added to section 82.3(B) "However, applicants must adhere to the requirements in 82.6(A) as applicable." The date was corrected from October 8, 2024 to October 15, 2024 to reflect the correct hearing date in Section 82.3(E)
Section 82.4 - Application for Water Quality Certification 82.4(A) was modified to clarify that the requirements in this subsection only apply to individual 404 permits and to add language explaining that the division will determine completeness of requests for certification, in alignment with the 2023 Rule. 82.4(A)(1) was added to require applicants to provide documentation of the 30-day pre-filing meeting request and to list the documentation that should be included in certification requests associated with individual 404 permits. When an applicant requests a pre-filing meeting (a minimum of 30-days in advance) they need to include a project description, project location, and approximate project construction timeline.82.4(A)(4) was added to require applicants to provide any readily available water quality related materials, in alignment with the 2023 Rule.82.4(B) was modified to require the applicant for an EPA-issued Section 402 permit to provide documentation of the 30-day pre-filing meeting request.82.4(C)(1) was added to require the applicant for a FERC license or any other federal license or permit to provide documentation of the 30-day pre-filing meeting request. 82.4(C)(2) was added to require a completed copy of the division's certification request form for certifications associated with FERC licenses and other federal licenses and permits.82.4(C)(3) was added to clarify that a copy (rather than the original) of the federal license or permit is required as part of the application submission for certifications associated with FERC licenses and other federal licenses and permits.82.5(C) was updated to say "Any readily available water quality related materials that informed the development of the 404 permit application or draft permit" to be consistent with the requirements in 82.4(A)(4) and the EPA's 2023 Rule.82.4(D) was modified to acknowledge that the division is responsible for determining whether sufficient information has been provided to consider a request for certification complete, in alignment with the 2023 Rule. Language was also added to 82.4(D) to clarify that the division - in coordination with the appropriate federal permitting agency - will establish the "reasonable period of time" for processing certification requests per the 2023 Rule. This language also sets forth the maximum reasonable period of time of one year and default reasonable period of time of six months, as well as an explanation of the process required for the division to extend the reasonable period of time. This section was also reformatted to help make it easier to distinguish between the "reasonable period of time" and the process for extending the "reasonable period of time".
82.4(E) was added to confirm that the division will provide written confirmation that includes the date the request for certification was received by the division. It also states that this written confirmation will be sent to the federal permitting agency in addition to the project proponent as required by the 2023 Rule.Section 82.5 - Division Procedures and Determinations All references to "reasonable assurance" were removed from section 82.5.
Section 82.5(A)(1)(e) was modified to replace the term "Best Management Practices" with "Control Measures" and to include a reference to the division's Clean Water Policy 12, Selection of Water Quality Best Management Practices.Section 82.5(A)(1)(f) was modified by deleting the word "stormwater" in order to reference all of the discharge requirements, as appropriate, in Regulation No. 61 (5 CCR 1002-61). Because the requirements in Section 82.5(A)(1) are applied as appropriate, only the specific provision of Regulation No. 61 that are relevant and applicable to the activity being proposed will be considered as part of the Division's determination, and this will not broaden the scope of certification review for 404 permits or FERC licenses when only stormwater discharges occur. Language was updated in both 82.5(A)(2) and 82.5(A)(3) to replace "issue" with "grant" to align with the 2023 Rule language.
82.5(A)(7) was added to explain that a certification not acted on within the reasonable period of time has been expressly waived by the division. This has always been the assumed practice but never expressly included in the regulation.Section 82.5(B)(1) was modified for 402 Permits to allow efficient use of the existing public notice provisions for the Colorado Discharge Permit System in Regulation No. 61.2(5)(2)(e) (5 CCR 1002-61).82.5(C)(4) was modified to bring the reasonable period of time language into alignment with the 2023 Rule and to reiterate language discussed in Section 82.5(A).Section 82.6 - Certification Requirements The commission updated the language in section 82.6 to clarify the applicability of state requirements to 401 certifications. These updates include the use of new terminology and further distinction between certification conditions and state requirements. In practice, the division historically included a copy of section 82.6 with the final 401 certification letters for individual 404 permits, but due to changes in the federal 401 guidance there was confusion over what is a "condition" enforceable under the 404 permit and what is a stand-alone state "requirement." The modification to section 82.6 eliminates that confusion and is consistent with section 25-8-302(1)(f), C.R.S. The modification establishes two subsections:
(A) which applies to all certifications; and (B) which applies only to conditional 401 certifications for individual 404 permits.82.6(A)(1) was revised to clarify that authorized representatives from the division are allowed to access the project site during the construction and operation of a project to inspect the control measures, certification conditions (if applicable), and any of the below requirements.82.6(A)(2) clarifies the requirements when there is a change in ownership or control of the project.82.6(A)(3) describes exceptions for diversion from or bypasses of facilities to maintain compliance with the certification requirements (formerly found in 82.6(A)(5)).82.6(A)(4), formerly 82.6(A)(7), clarifies that the division should be contacted in the event of a spill or other discharge not authorized by the 401 certification.82.6(A)(9) "No construction equipment shall be operated below the existing water surface until the Division is notified." was deleted, because it is redundant to the requirements in §82.6(A)(4), which requires the applicants to notify the Division upon the discovery of any "spill or other discharge" that is not authorized by the applicable license or permit.82.6(A)(15) concerning the use of certified weed free materials for control measures and mitigation was deleted because these are requirements that are already located in USACE 404 permit mitigation requirements. This information is also located in Clean Water Policy 12.82.6(B) (previously titled Best Management Practices) was replaced with "Requirements for conditional 401 certifications for individual 404 permits." The former section was deleted to eliminate redundancy with language earlier in the regulation directing 401 certification applicants to utilize the Best Management Practices in Clean Water Policy 12. The new section 82.6(B) describes the state requirements for 401 certifications that are granted with conditions. By including these requirements in this section of the regulation, the commission intends to clarify that these are indeed state requirements rather than conditions incorporated into a federally-enforceable 404 permit.47 CR 24, December 25, 2024, effective 1/31/2025