5 Colo. Code Regs. § 1002-82.22
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.
Basis and Purpose
The Commission has adopted revisions to this regulation to update procedures, correct typographical errors and to include a fee structure that was enacted by House Bill 15-1249. Since the last update to the regulation in 2003, the Division has issued 401 certifications for three large water supply Projects. The process of issuing these certifications highlighted language in the regulation that was not specific enough and allowed for alternative interpretations of the regulation. The regulation was updated to add clarity and minimize confusion.
Section 82.4 - Application for Water Quality Certification
Section 82.4 was modified to add the 401 water quality certification request form and the fee structure table explaining the tiers and the fees associated with processing the 401 certification application.
The summaries of the Project tiers and associated fees that are used in the table in section 82.4 were derived from section 25-8-502 (1.2)(a), C.R.S.
Section 82.4 also clarifies that fees for tiers 1 and 2 Projects are due at the time of application. For tier 3 and 4 Projects, a pre-application meeting will be held with the applicant for the development of a billing agreement. During the pre-application meeting, the Division and applicant shall negotiate in good faith regarding the fees to be billed and will identify a process by which fee disputes will be resolved between the parties. The billing agreement will include the Division's estimated costs within the state fiscal year (July 1-June 30), with a new billing agreement to be prepared each year. The Division can only charge for costs actually incurred, and the Division may prepare a revised billing agreement if the costs are underestimated in the initial agreement. The Commission expects that the Division and the applicant will be in close and frequent contact before the Division spends its time and/or resources on any evaluation (including participation in any federal processes associated with the Project) to discuss the Division's tier determinations and expectations for any associated fees.
Language was also added to Section 82.4 referencing the fees for all Projects except for USACE 404 Projects.
Section 82.5 - Division Procedures and Determinations
Section 82.5 (Division Certification Determination) was modified to include National Environmental Policy Act (NEPA) documents that the Division can review for the 401 certification determination. In Section 82.5 , language was added to reference Regulation 31 in the antidegradation review for the 401 certifications.
Section 82.5 was expanded to clarify the applicability of antidegradation "significance determinations" conducted under section 31.8 in the context of 401 certification review for FERC licenses and USACE 404 permits. This new language provides that in making significance determinations for any reviewable waters impacted by a proposed Project, the Division may balance the predicted water quality impacts of the proposed Project on those reviewable segments against the predicted benefits of any proposed water quality improvements or water quality mitigation measures to other segments within the Project area (regardless of their designation: use protected or reviewable). Where possible, such water quality improvements or mitigation measures shall be located in the same watershed where the reviewable segment(s) are located. In some cases direct mitigation on the same segment is not possible.
There are two objectives that are typically considered in the development of conditions. The first is to ensure that significant water quality impacts are mitigated wherever possible. While direct mitigation for hydrologic modification Projects may be challenging, it is important to apply these conditions where they can be effective and where they are consistent with section 25-8-104 of the Water Quality Control Act.
The second objective is to provide reasonable assurance that commitments made for mitigation of impacts and improvements to water quality provide the expected benefits. Existing mitigation and improvement measures from other permits or agreements, if successful, may contribute to "net environmental benefit" as it relates to the significance determination in the antidegradation review.
Section 82.5 was added to indicate that the Division may take local, state or federal permits, or agreements between the applicant and such agencies into consideration when considering whether to issue a 401 certification. The Division will consider the water quality-related implications of such permits and agreements in conducting its underlying analysis. The Division will not use this regulatory language to adopt conditions outside of its jurisdictional authority. The Division will not incorporate any such agreements or permits as conditions in the 401 certification, except the Division may in its discretion include Division-issued permits/authorizations or prior agreements entered into between the Division and the applicant as conditions. The Division may also establish independent conditions that would account for water quality improvements, or mitigation measures contained in any permit or agreement that might cease to exist in the future.
Section 82.5 (Regular Certification) was revised to reiterate the federal requirement in 40 CFR 121.2(a)(3) that the Division must have reasonable assurance the Project will be conducted in a manner that will comply with the 401 certification requirements.
Section 82.5 (Conditional Certification) was also modified to add similar language indicating that under 40 CFR § 121.2(a)(3) the Division must have a reasonable assurance that the Project will comply with the 401 certification requirements with additional conditions required by the Division.
Language was also included in the conditional certification provision to make it clear, for consistency with Regulation No. 31, section 31.8 , that any water quality improvements or mitigation measures relied upon in making a "no significant degradation" determination will be incorporated as conditions in the 401 certification.
Language was also added to section 82.5 to specifically identify the use of adaptive management as a condition to certification. Based on the Division's experience and examples from other states, the Commission recognizes the critical importance of incorporating the concept of adaptive management as a condition for large, multi-year water Projects in order to satisfy the federal "reasonable assurance" requirement. This component was added to allow large water Projects to adjust mitigation based on the uncertainty of the water quality impacts that were modeled for the Project.
The adaptive management condition also allows flexibility due to uncertainty based on the potential for water quality standards changes during the life of the certified Project. The Commission believes this concept is consistent with the federal requirement that "activities will be conducted in a manner which will not violate applicable water quality standards."40 CFR 121.2(a)(3). The Commission recognizes that "applicable water quality standards" can and do change over time, and adaptive management is intended to provide the flexibility for multi-year Projects to account for and comply with such changes. The Commission's legal authority to adopt this provision also stems from the broad authority provided to the state in Section 401 of the federal Clean Water Act, as well as sections 25-8-202(1) (i.5) and 25-8-205(1)(c), C.R.S. of the Water Quality Control Act. The Division's authority to implement this condition is found at section 25-8-302(1)(f), C.R.S.
In practice, the Division develops conditions based on the available data, the modeled analysis of such data, and applicable water quality standards at the time of certification. Parameters are identified that are predicted to exceed standards or antidegradation review requirements through the initial impacts analysis. Conditions are then developed for each of these parameters to address future impairments from the Project. Adaptive management conditions are not written to the specific numeric value (i.e., 4.6 µg/l), but instead simply reference the applicable standard. If the standard changes, the numeric value used as the basis for the condition will change as well. For example, if after the time of the certification, the Commission adopts a site-specific temperature standard that is less stringent than the standard used for the initial impacts analysis, the less stringent standard will be used to assess that condition. Alternatively, if a more stringent selenium standard were to be adopted by the Commission in the future, this standard would be used to assess selenium conditions.
The Division does not develop conditions for pollutants for which there was not a predicted impact or concern at the time of certification. There may be a case, however, where there was a predicted impact for one metal and additional metals were added to the adaptive management condition to ensure continued attainment of the other metals standards. Similarly, the Division does not develop conditions for other pollutants for which no standards exist at the time of certification. The Commission understands that the Division does not intend to predict standards for new pollutants that may be adopted by the Commission in the future. And along these lines, the Division would not require monitoring for every potential emerging contaminant.
If monitoring in an adaptive management condition indicates an exceedance of water quality standards, the Project proponent will be required to conduct an investigation to determine if the Project is contributing to the impairment. If the Project is determined to be the cause of the impairment, then the Project proponent is required to develop a Category 4b Plan. A Category 4b plan is a regulatory alternative to a TMDL that address water quality impairments. The plan identifies mechanisms that are expected to result in attainment of water quality standards in a reasonable period of time.
In implementing adaptive management plans, the Commission encourages Project proponents to collaborate with affected local entities and other government agencies. The Commission recognizes that local participation in adaptive management is very important. Therefore, adaptive management generally should be designed to include the participation of the local government and other stakeholders in the area affected by the operation of the Project wherever possible.
Section 82.6 - Certification Requirements
Language was added to Section 82.6 that will require the applicant to notify the Division before work occurs below the existing water surface. The intent of this addition is to allow the Division to be aware of construction activities that occur below the water surface in the event the Division is contacted by concerned entities.
Appendix I
The information that was contained in Appendix I, regarding Best Management Practices for the Clean Water Act Section 401 Certifications, was updated and it was determined that this information should be removed from an appendix to the regulation and instead should be contained in a Division policy so that it can be updated more frequently.
5 CCR 1002-82.22