5 Colo. Code Regs. § 1002-82.5

Current through Register Vol. 47, No. 11, June 10, 2024

Section 5 CCR 1002-82.5 - DIVISION PROCEDURES AND DETERMINATIONS

(A) Division Certification Determination:

(1) In determining whether to issue a 401 certification, the Division shall consider and review the certification application submitted, the water quality impacts of the construction and operation of the Project, associated National Environmental Policy Act (NEPA) documents and the following, as appropriate:

(a) Antidegradation review pursuant to the procedures in the Procedural Rules, Regulation No. 21. (5 CCR 1002-21), section 21.16 , and the Basic Standards and Methodologies for Surface Water Regulation No. 31 (5 CCR 1002-31), section 31.8, except that:

For USACE Section 404 permits and FERC licenses, "significance determinations" for reviewable waters under section 31.8 shall be made with respect to the net effect of the new or increased water quality impacts of the proposed Project, taking into account any environmental benefits within the Project area, including any water quality improvements, or mitigation measures proposed to be implemented within the Project area. Where possible, water quality improvements, or mitigation measures shall be located in the same watershed where the reviewable segment(s) are located.

(b) The Basic Standards and Methodologies for Surface Water Regulation No. 31 (5 CCR 1002-31), and the Basic Standards for Ground Water Regulation No. 41 (5 CCR 1002-41);

(c) Classifications and water quality standards assigned to the waters affected by the Project at the date of certification for which a federal license or permit is required;

(d) Any applicable effluent limitations or control regulations;

(e) Best Management Practices required by this regulation in subsection 82.6(B);

(f) The stormwater discharge provisions of the Colorado Discharge Permit System, Regulation No. 61 (5 CCR 1002-61);

(g) Water quality-related conditions in any applicable local, state, and federal permits, licenses or agreements.

(h) Comments and other information raised during the public comment period outlined in subsection 82.5(B).

(i) Any Project specific conditions proposed by the applicant and agreed to by the Division, including any condition beyond the authority of the Division to require.

(2)Regular Certification. If, after consideration of the elements in subsection 82.5 , the Division concludes that there is reasonable assurance that the Project for which a federal license or permit is required will comply with all applicable requirements if constructed, operated, and maintained as designed, the Division shall issue a certification without additional conditions for the license or permit.

(3)Conditional Certification. If, after consideration of the elements in subsection 82.5 , the Division concludes that there is reasonable assurance that the Project for which certification is required will comply with all applicable requirements only if one or more conditions are placed on the license or permit to mitigate the water quality impacts of the construction and operation of the Project, the Division shall issue a 401 water quality certification with such conditions included. Any water quality improvement, or mitigation measures taken into account in making the significance determination referenced in section 82.5 shall be incorporated as conditions of the 401 certification. The Division may condition water quality certification on adaptive management to address changes in the Project's predicted impacts and/or future changes in applicable water quality classifications and standards. The Division, as a part of the conditional certification, may require water quality monitoring, based on site-specific circumstances, to ensure that BMPs are performing as designed and that the Project complies with all applicable conditions. Any conditions imposed by the Division shall be consistent with subsection 25-8-104 C.R.S. Any condition acceptable to the applicant and the Division that is beyond the authority of the Division to impose may also be included as a condition to the certification. Prior to issuance of such conditional certification, the Division may hold one or more meetings or conferences to inform the applicant of the need for such conditions and to discuss options for the Project including redesign or modification.

(4)Emergency Certification of Section 404 Permits. Whenever the USACE makes a determination that it will process an application for a section 404 permit pursuant to its Procedures for Emergency Authorizations, 33 CFR 325.2(e)(4), the Division may issue a section 401 certification pursuant to subsections 82.5 or 82.5 on an emergency basis under subsection 82.5 , if it determines that such certification is necessary to preserve public health or welfare. In issuing such certification, the Division shall take into consideration the factors listed in section 82.5 to the extent practicable, and may modify or waive, to the extent necessary, the certification requirements of section 82.6

(5)Denial of Certification. If, after consideration of the elements in subsection 82.5 , the Division concludes that there is not a reasonable assurance that the Project for which a federal license or permit is required will comply with all applicable requirements even with the addition of conditions, the Division shall deny certification of the license or permit. Prior to denial of certification, the Division may hold one or more meetings or conferences to inform the applicant of the preliminary decision to deny certification and to allow the applicant to make necessary modifications to the Project leading toward certification, if possible.

(6) Certification shall not be denied where the imposition of conditions or denial would result in material injury to water rights as prohibited under section 25-8-104 C.R.S. In such case, the Division shall identify in the certification and in the Water Quality Information Bulletin that section 25-8-104 C.R.S. has been applied. However, the Division and the Project proponents shall, in concert with commenters to the certification proceeding, including the involved federal agencies, examine and implement, where appropriate, means to prevent, reduce or mitigate water quality impacts identified during the permitting process and associated with the exercise of water rights. In such case, agreed upon conditions to ensure that the federally permitted activity will comply with effluent limitations, water quality classifications and standards and other applicable water quality control requirements that may be imposed under state law shall be included in the Division's certification determination.

(B) Public Notice

In preparing a certification determination the Division shall prepare both a draft and final certification.

(1) The draft certification shall be noticed in the Water Quality Information Bulletin, and shall include a request for comments to be submitted to the Division within thirty (30) days of publication in the bulletin. The draft certification shall contain:

(a) If applicable, preliminary antidegradation determination in accordance with the Basic Standards and Methodologies for Surface Water, (5 CCR 1002-31), Regulation 31.8; and

(b) A draft certification determination.

(2) The final determination shall be prepared following the thirty day (30) public comment period on the draft certification. The final certification shall include any changes determined appropriate by the Division based upon public comments and information raised during the public comment period for the draft certification. Notice of a final antidegradation determination and final certification determination will be published in the Water Quality information Bulletin.

(3) Emergency Certification of Section 404 Permits. Subsections 82.5 (2) notwithstanding, whenever the USACE makes a determination that it will process an application for a section 404 permit pursuant to its Procedures for Emergency Authorizations, 33 CFR 325.2(e)(4), the Division may issue an emergency section 401 certification pursuant to subsection 82.5 . Reasonable efforts will be made to receive comments from interested Federal, state and local agencies and the affected public.

(C) Other Division Procedures:

(1) The Division shall, where appropriate, or where requested, provide to commenters to the certification proceeding and to others upon request, its written analysis of its basis for certification, including identification of the stream segments affected, the potential water quality impacts identified as a result of the Project, and the results of any actions under subsection 82.5 to prevent, reduce or mitigate water quality impacts associated with the exercise of water rights. A copy of any such analysis shall be provided to the federal permitting or licensing agency at the time of certification.

(2) Where possible, the 401 certification process should be coordinated or consolidated with the scoping and review processes of other agencies which have a role in a proposed Project in an effort to minimize costs and delays for such Projects.

(3) When an issue involving section 25-8-104 C.R.S. is raised, the Division shall consult with the State Engineer and the Water Conservation Board in determining whether a contemplated 401 condition or denial may be inconsistent with section 25-8-104 of the Water Quality Control Act.

(4) The Division shall complete the certification decision as soon as practicable following the expiration of the public comment period provided for in subsection 82.5 . If the federal agency to whom license or permit application has been made has determined that an environmental impact statement, public hearing, or other action to supplement the body of information for the application is necessary, the Division may delay the issuance of a certification decision until a time not later than sixty (60) days, following the close of the administrative record, if it finds that such process may produce information relevant to the certification decision. If the Division finds that a delay is unavoidable, the Division shall provide the applicant notice of the delay, including an explanation of the reason for the delay. Any failure of the Division to issue a certification decision within the timeframes established above shall not be deemed either an issuance or a denial of certification, except as provided in the Federal Act. The applicant for certification may waive the decision time frames above upon request by the Division.

(D) Except for data determined to be confidential under section 25-8-405(2) C.R.S., or other applicable law, all reports and information prepared and submitted in accordance with the requirements herein shall be available for public inspection at the offices of the Division.

(E) 401 certification does not convey any property rights in either real or personal property, or any exclusive privileges, nor does it authorize any injury to private property or any invasion of personal rights, nor any infringement of federal, state, or local laws or regulations.

(F) Nothing herein shall preclude the Division from initiating action for enforcement as may be provided by law.

5 CCR 1002-82.5

42 CR 01, January 10, 2019, effective 1/31/2019