5 Colo. Code Regs. § 1002-82.18
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
These changes have been adopted by the Commission to correct typographical errors found in the regulation, to remove language which inaccurately describes the application process for certifications under the regulation, and to clarify the applicability of Best Management Practices to section 402 permits.
The corrected typographical errors pertain to numbering errors in various portions of the regulation. The regulation has been modified to reflect correct section and subsection numbers.
Section 82.4 were modified to remove the titles of individuals in the Division to whom certification applications should be made. The Division's reorganization of 1997 removed the positions and work units referred to in the regulation. The changes clarify that application should simply be made to the Water Quality Control Division.
Section 82.5 was added to clarify that information received during the public comment period would be considered during the Division's 401 certification determination. This provision is consistent with current Division practices.
Section 82.5 was modified to be consistent with the purpose statement found in section 82.1 of the regulation. Section 82.1 is clear in stating that the BMP's are not applicable to section 402 permits. The first statement in section 82.5 was modified to include this exception.
Trout Unlimited proposed revisions to the previous definitions of "certification" and "compliance or comply" in section 82.2 , with a goal of assuring protection of the classified uses of state waters. In this rulemaking, the Water Quality Control Division asserted that the authority to protect uses already existed. In an effort to clarify the regulation in a manner consistent with federal and state law and existing practice, the Commission has made several revisions related to the definitions in section 82.2.
First, the definition of "certification" has been revised to clarify that the Division must assure compliance with all applicable water quality control requirements for the affected waters in issuing a section 401 certification, rather than solely with the specific requirements previously listed in the definition. The revised language also helps assure consistency with section 401 of the federal Clean Water Act by using the phrase "will comply", rather than the previous "not expected to cause a violation of." Second, the definition of "compliance or comply" was deleted from the regulation because it was found to be unnecessary. The revised definition of "certification" already encompasses the concept of complying with state water quality requirements. In addition, the references in the previous definition to averaging period and frequency of exceedance were unnecessary, since those considerations are addressed in the Basic Standards and Methodologies for Surface Water, which is explicitly referenced in the definition of "certification." Finally, the language in the previous definition of "compliance or comply" regarding temporary exceedances has simply been moved to section 82.6 , regarding enforcement of certification conditions.
Trout Unlimited proposed revisions to several subsections of section 82.5 , proposing that more explicit references be added to the regulation regarding the Division's consideration of section 25-8-104 of the Colorado Water Quality Control Act in making a section 401 certification determination. Section 25-8-104 contains a number of provisions intended to limit the potential impact of water quality regulations on the exercise of water rights.
To address this issue, the Commission adopted alternative language that was agreed to by the Division and all parties during the rulemaking hearing. In particular, a new subsection 82.5 has been added, in place of language that has been stricken from subsection 82.5 . The primary change from previous language is a new provision directing) the Division to identify in the certification and in the notice of section 401 certification determinations instances in which section 25-8-104, C.R.S. has been applied. The Commission believes that the compromise language provides reasonable and straightforward notice of the application of section 25-8-104.
Consistent with the agreement between the Division and the parties, the Commission also revised the language in subsection 82.5 to provide that the Division "shall", where appropriate or where requested, provide its written analysis of its basis for certifications, including the results of any actions under the new subsection 82.5 discussed above. The Commission does not intend for the Division to prepare a separate analysis under this subsection regarding the basis for certification from that otherwise developed. The Commission believes that this is a reasonable approach that will provide necessary information to the public without creating an additional administrative burden for the Division.
PARTY/MAILING LIST STATUS FOR THE RULEMAKING HEARING
5 CCR 1002-82.18