5 Colo. Code Regs. § 1002-82.12
Certification by the State of Colorado under Section 401 of the Clean Water Act is required for issuance of Federal licenses and permits which may result in a discharge to waters of the United States in Colorado. At this time this requirement applies to Corps of Engineers individual 404 permits, and Federal Energy Regulatory Commission licenses and permits, although these regulations do not restrict certification to those permits only. The Water Quality Control Division is given the certification responsibility under Section 25-8-302 of the State Act. These regulations satisfy the requirements of Section 25-8-101 et seq and 25-8-302 of the State Act.
In adopting these regulations, the Water Quality Control Commission has determined that it is necessary for the State, acting through the Division, to determine whether the adopted stream classifications and water quality standards will be complied with rather than leaving this determination to the Corps of Engineers or other federal agency charged with issuing permits affecting state waters. Further, the Commission concluded that the basic stream standards included in Section 3.1.11 of the Basic Standards and Methodologies together with the numeric standards assigned to protect the classified uses of any segment or segments are to be considered by the Division when deciding whether to unconditionally certify, conditionally certify, or deny certification of federal licenses or permits.
Any discharge into state waters, even an insignificant one, is recognized by the Commission as having the likelihood to cause noncompliance with stream standards for a short distance below the discharge point for a short duration. These regulations incorporate this concept by requiring the Division to consider effects on significant portions of stream segments for extended periods of time.
It is recognized that the construction and operation of water diversion, conveyance, and storage facilities may result in unavoidable and permanent changes in the water quality characteristics of any segment of a stream which is inundated by the facility. These regulations are not intended to apply to or regulate such impacts. Furthermore, water quality changes which occur within diversion, conveyance and storage facilities, including daily or seasonal changes such as temperature stratification, turnover, changes in the level of dissolved oxygen, or other conditions associated with the capture, impoundment, diversion, conveyance, or release of water, are not considered to be noncompliance for the purposes of these regulations.
The Commission concluded that enforcement authority of the conditions of certification rests with the federal licensing agency. However, the Division is not prevented from notifying the federal agency pursuant to section 401(a)(5) of the federal act that a permitted activity is in violation of the certification or from initiating action against the federal agency in mandamus or as otherwise permitted by law to prevent the continuation of an activity in violation of a certification, particularly if attempts to resolve the matter through the federal licensing agency have been unsuccessful.
The Commission considered the economic ramifications of these regulations and concluded that they were economically reasonable. The benefits which accrue to all as a result of maintaining the classified uses of the states waters and the water quality standards outweigh the minor costs associated with the imposition of the management requirements and additional requirements listed in 2.4.5.
5 CCR 1002-82.12