5 Colo. Code Regs. § 1002-82.20
The provisions of 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, and, in compliance with section 24-4-103(6), C.R.S., the following Findings in Support of Emergency Adoption.
The Corps of Engineers is authorized pursuant to section 404 of the federal Clean Water Act to implement Procedures for Emergency Authorizations in response to situations which "would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen and significant economic hardship". These procedures, contained in 33 CFR Part 325.2(e)(4) of the Code of Federal Regulations, address expedited procedures for review, coordination and decision making with respect to permit applications in emergency situations. Prior to this rulemaking the 401 Certification regulation did not incorporate provisions which would allow the Division certification process to accommodate an expedited federal section 404 permit process.
The wildfires that have occurred in Colorado during 2002 have resulted in a number of situations where the Corps of Engineers anticipates exercise of its Procedures for Emergency Authorizations to consider permit applications for activities intended to mitigate fire impacts. These potentially include diversion of watercourses around homes, construction of flood control structures and sedimentation ponds, or reconstruction of water supply diversion structures. The Corps of Engineers operates under Procedures for Emergency Authorizations on an infrequent basis and then only in response to events such as flooding or wildfires. The Corps does not expect that a significant number of section 404 permit applications will be considered and issued pursuant to the Procedures for Emergency Authorization.
The Commission has inserted new provisions at sections 82.5 (3) that authorize the Division to expedite consideration and issuance of section 401 certifications in response to Corps of Engineers use of its Procedures for Emergency Authorizations.
The Commission added specific public notice procedures to section 82.5 that allow the Division to issue Emergency Certifications without complying with the public notice requirements of subsections 82.5 in order to assure prompt resolution of certification requests. The Commission intends that, in instances where prompt consideration of a certification request is necessary to preserve public health, safety or welfare, the Division should have the flexibility to respond expeditiously. However, the Commission has included language to assure that reasonable efforts will be made to receive comments from interested federal, state and local agencies and the affected public.
The addition of section 82.5 will allow the Division to review and determine, on a site-specific basis, the extent to which application of one or more areas of consideration identified in section 82.5 and the certification requirements in section 82.6 remain appropriate under emergency situations. The Commission intends that the Division will forego consideration of the factors listed in section 82.5 and application of the certification requirements in section 82.6 only to the extent that certification without such consideration or such requirements is necessary to preserve public health, safety or welfare.
The 401 Certification Regulation, Regulation No. 82, previously lacked provisions to allow the Division to expedite consideration and issuance of 401 certifications in response to emergency conditions. For this purpose, emergency conditions correspond to those situations in which the Corps of Engineers uses the Procedures for Emergency Authorizations. Such situations are those which "would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen and significant economic hardship". The Commission has, by this rulemaking, adopted provisions necessary to allow the Division to respond to such emergencies expeditiously and with appropriate consideration of factors relevant to a certification.
If the Commission does not adopt revisions to Regulation 82 on an emergency basis, the Division will lack the ability to process 401 certifications in an effective and timely manner in response to emergency situations which the State now experiences. The Commission finds that immediate adoption of these revisions to Regulation 82 is imperatively necessary to preserve public health, safety and welfare and that compliance with the requirements of section 24-4-103, C.R.S., would be contrary to the public interest.
These emergency revisions become effective upon adoption and shall remain in effect until March 31, 2003. The Commission determined, pursuant to section 25-8-402(5), C.R.S., that this effective period is necessary to provide time to reconsider these revisions in a rulemaking hearing held in compliance with the requirements of section 24-4-103, C.R.S.
5 CCR 1002-82.20