5 Colo. Code Regs. § 1002-82.16
The provisions of 25-8-202(1) (i.5) C.R.S. provides for 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
In the purpose section, the Commission eliminated the possible confusion regarding the types of federal permits that the regulation applied to.
The Commission particularly noted that federal permits issued under Section 402 of the Federal Act are covered by the regulation. The current 401 regulation was designed primarily to consider the construction and operation aspects of 404 permits or FERC licenses. Because permits issued under section 402 do not involve the same type of certification analysis that 404 permits or FERC licenses do, the Commission anticipates that the requirements for certification of federal 402 permits will need to be revisited at a future rulemaking hearing to determine whether modifications to the regulation need to be made to address the 402 permit certification issues that may arise as this regulation is implemented. It is also conceivable that the State will seek delegation of the federal facilities 402 permit program from the EPA which will render the certification of federal 402 permits moot.
The Commission also decided to add several definitions and modify others to better clarify the terminology used in the regulation.
The Commission determined that the previous organization of the regulation was awkward and redundant, particularly in Sections 2.4.4 , 2.4.5 and 2.4.7 where much of the language covering division actions is repeated. Also, the Commission felt it was important to move the portion of the regulation on procedures near the beginning, and include sections on Applicability and Application Procedures to make the regulation more useable. The previous regulation contained a section (2.4.6) on certification requirements that included requirements for both the applicant and the division. The Commission determined that these two matters should be separated for improved organization of the regulation. Instructions for the division are included in 2.4.6(C), and the requirements for the applicant are in 2.4.6(D).
The thirty day time frame in which the division was to normally have reached a certification decision was eliminated from the final rule since it could prove unnecessarily constricting in circumstances where a complex situation presented itself requiring more than the usual scrutiny. The phrase "as soon as practicable" replaces the thirty-day timeframe, but the Commission continues to expect that in normal circumstances, the 401 decision will be rendered within thirty days. The sixty-day decision time frame in circumstances where a special information supplementing process is called for was retained as a means to assure that the decision process is not unreasonably delayed.
The requirements contained in the application section are modest and are not considered to be a burden on the applicant. In the applicability section, the acknowledgment that Corps of Engineers nationwide or general permits can be used without further action by the division tracks precisely with the statutory requirement in 25-8-302(f). Also, in 2.4.4(C) the provisions that certification is to apply to both the construction and operation aspects of a project, and extend to the water quality impacts of a project are consistent with division policy throughout the history of 401 certification, and are properly codified in this regulation. To limit the division's certification in either time or scope would invite federal intervention as contemplated in the Clean Water Act. By including this language in the regulation, the Commission understands that insignificant and transitory water quality impacts are not matters of concern in the division's certification process, and that the division should focus on those impacts that have the potential to cause exceedances which could impair state classifications and standards.
The Commission determined that it was important to include the public notice procedures the division is to follow for both COE and other federal permits. The public notice provisions essentially are a reflection of the policies developed overtime by the division, and seemed to have served both the public and the applicant for certification well.
The heart of the regulation is found in 2.4.6(B) where the major elements comprising the division's decision are set forth. In the former regulation, some of this guidance was missing and other portions were scattered throughout the regulation. These modifications bring the decision components together in one place, and clarify how the division is to arrive at a certification decision. One noteworthy change from the previous regulation is that Best Management Practices (BMPs), known previously as "management practices", are now required for every certification, except for certification of federal 402 permits. The BMPs are nothing more than sound construction techniques which any responsible contractor would employ to protect the environment and public health. Except for federal 402 permits that do not involve construction, it is reasonable to require these practices for each certification, and not issue an unconditional certification without BMPs as was allowable in the former version of the regulation. The BMPs were left largely unchanged except for practice number 21 which allowed special conditions to be drawn up and included with the list of standard conditions. That practice was eliminated and instead was folded into 2.4.6(B)(4), Conditional Certification. Under these revisions, the division can clearly separate the need for special water quality protective conditions from the list of standard BMPs by performing its certification under the provisions of 2.4.6(B)(4) rather than (B)(3), Unconditional Certification. It was also determined that conditional certification may also contain mitigation measures acceptable to the applicant and the division, even those that may be beyond the authority of the division to impose. In the past, almost no certifications were issued without the list of "management practices" attached, so this clarification merely confirms division policy. The provisions for denial of certification were modified to recognize that the division should confer with the applicant for certification prior to denial to explore possible modifications to the project so that certification could be issued. Otherwise, the provisions for certification in those cases where denial would materially injure water rights has been retained.
The Commission modified language in §2.4.6 to now provide that the division shall deny certification if it concludes that there is not a "reasonable assurance" that the subject project will comply with listed state requirements. This language is consistent with language found in 401 certifications issued by the division, and with language found in section 401 of the Federal Clean Water Act and the EPA 401 regulations. The Commission does not intend by this language to create any presumption that the project for which a 401 certification is sought will comply with state water quality requirements. Instead, the Commission intends this language to require the applicant for a 401 certification to come forward with sufficient information to enable the division to determine whether the project will comply with such requirements. Denial of a 401 certification is appropriate in the absence of such sufficient information.
The Commission also modified language in §2.4.6 that previously required the division to identify water quality impacts for which mitigation is not being required due to the state policy established in § 25-8-104, C.R.S. A number of parties pointed out that this language implied that the state policy established in § 25-8-104, C.R.S. was undermining the division's ability to address water quality issues in the context of 401 certification reviews. The Commission has therefore, changed this language to indicate that whenever material injury to water rights is an issue, the division, the applicant and other interested persons, will work together to examine and implement, where appropriate, means to avoid or mitigate water quality impacts consistent with the prohibition against material injury found in § 25-8-104, C.R.S. Related language was added in §2.4.6 whereby the division may prepare a written analysis of the basis for certification if appropriate or requested. The Commission anticipates that the division will prepare such an analysis for all significant 401 certifications and for those where the statutory prohibition against material injury to water rights is of particular concern. The Commission intends that this analysis will identify the water quality impacts associated with the project, and that it will discuss whether and to what extent mitigation was required or not required, particularly if water rights are involved. This analysis is to be provided to all commenters to the 401 certification process, and to all others who request it, and is to be submitted along with the 401 certification to the permitting or licensing federal agency.
The Commission considered whether to include a provision allowing the division to waive certification where, even after receiving supplemental information, the nature and extent of water quality impacts remained uncertain. The notion of waiver provisions was rejected, however, since the Commission felt it was better to deny a certification under those circumstances rather than leave the water quality determination up to the federal permitting agency.
A new section 2.4.7 was included to describe the two options available to the division for insuring that certification conditions are implemented. In all cases where it is learned that the permittee has not implemented certification conditions, the division is to first notify the federal permitting agency and the permittee and request that action be taken to require the implementation of conditions. If such notification and follow-up is unsuccessful, the division can then consider initiating procedures available under the Administrative Procedure Act to suspend or revoke the certification. The Commission determined that such provisions are necessary and appropriate since the federal agency is required under Section 401 (d) to include certification conditions as part of the federal permit and require compliance with them as it would with any provisions of the permit. The Commission recognizes that if the federal permit or license has been granted prior to the revocation or suspension of a 401 certification, that the revocation or suspension will likely not have any effect on the validity of the federal license or permit. Nevertheless, the Commission believes that the revocation or suspension of a 401 certification would send a strong signal to the federal permitting or licensing agency, as well as the permittee or licensee, that compliance with the 401 certification conditions is not being met. Suspension or revocation is not expected to be used except in extreme circumstances where an impasse has been reached with both the permittee and the federal agency.
PARTIES TO THE RULEMAKING HEARING
5 CCR 1002-82.16