HomeMy WebLinkAbout851225.tiff WATER LEGISLATIVE REPORT
Colorado Water Congress • 1390 Logan St., Fpm. f 03 • Phone: (303) 837-0812
JU N 2 81985
Editor: Richard D. MacRavey June 25, 1985
GRE ELEY. COLO.
As a result of House Joint Resolution No. 1025. the Legislative' Council is directed
to appoint committees to undertake the following studies:
I . A two year study of the state's tax policy;
II , A study of highways and of the transportation of hazardous materials and
hazardous waste;
III. A study of water and land resource issues ;
IV. A study of medical care cost containment;
V. A study of workmen's compensation and unemployment compensation in Colorado; and
VI . A comprehensive study of the structure of sentencing of felons and the
criminal justice system.
In terms of the water community, the most important study is the study of water
and land resource issues. The study of water and land issues, includes, but is not
limited to:
(a) Compensatory storage;
(b) The role of the state engineer in water rights administration;
(c) Nontributary ground water;
(d) A determination: of the state' s role in dealing with the National Oceanic &
. Atmospheric Hydrometeorological Report No. 55;
(e) Observation of the implementation of the satellite stream-gaging system and
the receiving of reports of the progress or problems of the system;
(f) The receiving and reviewing of progress reports on possible litigation
matters between Colorado and Kansas on water rights on the Arkansas River;
(g) The establishment of procedures to facilitate the Identification,
evaluation , prioritization, scheduling, and funding of state water projects;
(h) An evaluation of the present and future needs of the State with respect to
state lands not under the jurisdiction of the State Board of Land
Commissioners, as well as a study of the current use and productivity of
such lands , in order to develop recommendations concerning the disposition
of such lands: and
851225
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Legislative Report June 25, 1985
(i ) The role of the General Assembly in determining state policy regarding
state-owned lands administered by the State Board of Land Commissioners
under the terms of the Enabling Act and the Constitution of the State of
Colorado and a determination whether such land when it becomes viable for
development should be leased on a long-term basis, traded, or sold, if the
Board should be authorized to increase its staff capacity in managing such
land, and whether a change in the State Constitution is needed with respect
to the authority of the Board in administering such lands.
The Legislative Council Water and Land Resources Committee will be composed of
the following eleven members of the General Assembly: namely ; Senator Tilman Bishop
(Chairman) , Representative Walt Younglund (Vice Chairman) , Senators Ralph Cole, Harold
McCormick, Jana Mendez and Dave Wattenberg; and Representatives Ed Carpenter, John
Herzog, Scott McInnis, Robert Shoemaker and Ruth Wright. The interim Legislative Council
Water and Land Resources Committee will be staffed by the following individuals: Wally
Pulliam (Senior) , Jim Hill and Bill Goosmann.
The Water and Land Resources Interim Committee schedule is as follows: July
11-12, August 1-2, August 22-23, September 12-13, and October 10-11. It should be noted
that these Committee meetings are subject to change; therefore, any one interested in
following any of the items dealing with land and water resources should contact the
Legislative Council staff prior to making a trip to Denver to attend a meeting. The
Legislative Council telephone number in Denver Is 866-3521 (ask for Pulliam, Hill or
Goosmann) . Incidentally, all meetings of the Interim Committee on Land and Water
Resources will be held at a committee room in the State Capitol (although this is subject
to change) .
If you have any questions about the interim Legislative Council committees ,
please do not hesitate to contact the Colorado Water Congress staff (telephone number
837-0812) .
WATER QUALITY NEWS
Colorado Water Congress • 1390 Logan St., Rm. 31 • Iv
fl �{ I��do .80203 • Phone: (303) 837-0812
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Editor: Jerry W. Raisch ill JuN261g85 June 21 , 1985
J
A SUMMARY OF CURRENT WATER QUALITY
DEVELOPMENTS OF INTEREST TO COLORADO WATER USERS
AMENDMENTS TO THE COLORADO WATER QUALITY CONTROL ACT
S.B. 83 enacted by the Colorado General Assembly became law on
June 4, 1985. The principal impetus behind the introduction and adop-
tion of S.B. 83 was EPA's threat_ to withdraw delegation of the dis-
charge permit program to the State of Colorado unless certain EPA
perceived deficiencies in the Colorado Water Quality Control Act were
corrected. The following summarizes the principal changes included in
S.B. 83.
ECONOMIC REASONABLENESS
The 1981 amendments to the Colorado Water Quality Control Act
(S.B. 10) introduced the concept of economic reasonableness in the
policy section of the Act 25-8-102. In addition, S.B. 10 provided for
a hearing to determine the economic reasonableness of imposing treat-
ment requirements beyond secondary treatment . These treatment require-
ments consisted of water quality based effluent limitations , i .e. ,
those levels of treatment necessary to meet water quality standards .
S.B. 83 eliminates the opportunity for a discharger to have a
hearing before the Commission to consider the economic reasonableness
of water quality related effluent limitations . It is important to
note that only the hearing is eliminated. The policy that the
Colorado water quality program be economically reasonable was not
altered. Further, S.B. 83 added a new subsection (8) to Section
25-8-503 that requires the Water Quality Control Division to determine
that water quality based effluent limitations are economically reason-
able before they are imposed in permits .
Section 25-8-503(4) was also amended to require that water quality
based effluent limitations be based on application of appropriate
physical , chemical , and biological factors reasonably necessary to
achieve the levels of protection required by the standards . The
intent of this section was to preclude the establishment of overly
stringent and unreasonable effluent limitations that are based on
overlapping worst case scenarios , e .g. , assuming worst flow, worst pH,
and worst temperature conditions in the calculation of ammonia limi-
tations in permits .
Water Quality News June 21 , 1985
CLASSIFICATION AND STANDARDS REVIEW
The demise of the economic reasonableness hearing required the
creation of another potential remedy for overly stringent water
quality based effluent limitations . Rather than directly focusing on
the limitations , S.B. 83 provides for the mandatory review by the
Commission of use classifications and/or water quality standards .
Pursuant to new § 25-8-207, the Commission must review existing clas-
sifications and standards to see if they are:
- consistent with the policies in § 25-8-102 and 104 (economic
reasonableness and water rights ) ;
- more stringent than necessary to protect fish, shellfish and
wildlife in water segments which are reasonably capable of
sustaining such life forms considering characteristics such as
physical , streambed, flow, habitat, climatic and other perti-
nent characteristics ; or
- based on material assumptions that were in error or no longer
apply. (For example, when the Commission initially adopted
water quality standards for un-ionized ammonia and nitrite in
certain stream segments , it assumed that these standards could
be met with secondary treatment and that advanced waste treat-
ment would not be required . )
Where the Commission determines that an inconsistency exists , it
must declare the inconsistent classification or standard void and must
simultaneously establish appropriate classifications or standards . It
must be noted that this "remedy" may be like taking an aspirin for a
heart attack. It does not guarantee that onerous water quality based
effluent limitations will be changed nor does it guarantee that
onerous use classifications and/or water quality standards will be
changed. It merely guarantees the right to review whether the exist-
ing use classifications and standards are indeed correct . Of further
concern if the classifications and standards are changed is whether
EPA will approve the change.
ADMINISTRATIVE STAY
A new section 25-8-406 was added to the Act giving the Division
the authority to issue administrative stays from terms or conditions
of permits that are subject to adjudicatory hearings . Before this
amendment was added parties contesting permit terms and conditions
were forced to go to court under § 25-8-404(4) if they wanted a stay
of the objectionable terms and conditions pending administrative
review.
401 CERTIFICATIONS
In 1984 the Water Quality Control Division developed a list of
conditions that it intended to apply to general and nationwide 404
permits in connection with its certification of such permits pursuant
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Water Quality News June 21 , 1985
to Section 401 of the Clean Water Act . S.B. 83 invalidated these con-
ditions , stated that no conditions were to apply to general or nation-
wide 404 permits , and stated that conditions attached to the Divi-
sion ' s certification of regular 404 permits were to be subject to
rulemaking by the Commission. 25-8-302(1 ) (f ) . See item below con-
cerning rulemaking by the Commission .
MISCELLANEOUS CHANGES
In addition to the above, S.B. 83 included a number of miscellane-
ous changes including:
- Deletion of the ability to escape criminal pollution charges by
applying for a discharge permit and then discharging prior to
issuance . 25-8-609(1 ) (c) .
- Addition of emergency rulemaking authority to adopt interim
standards for a period of three to twelve months . 25-8-208.
- Discharge permit conditions required by the federal Act that
are challenged by a permitee are to be reviewed by a hearing
officer and not the Commission as was the case previously.
25-8-401 ( 5) (b) .
- Section 203 concerning classification of state waters was
changed to delete "aquatic life" and add "fish" as a basis for
classification. The reason for this change was to make the
criteria for classification consistent with the federal Act .
S.B. 83 also provides that the Commission may adopt classifi-
cations that are consistent with Section 102 which refers to
various uses including aquatic life as well as the policy on
economic reasonableness .
BEST PROFESSIONAL JUDGMENT
As a result of pressure from EPA, the Colorado Water Quality
Control Act was amended in 1983 to allow the Division to exercise best
professional _judgment (BPJ) in establishing effluent limitations to
comply with federal requirements . Section 25-8-503(1 ) . Three modifi-
cations were made to this Section by S.B. 83.
Effluent limitations based on BPJ determinations must he:
- Necessary for compliance with the federal "Act" as opposed to
federal "requirements" as was previously the case .
- Necessary, reasonable, and supported by substantial evidence .
- Reviewed by a hearing officer if challenged by a permitee .
Previously they were reviewed by the Commission .
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Water Quality News June 21 , 1985
RULEMAKING
At a June 17, 1985 special meeting, the Commission authorized the
Division to prepare draft regulations concerning a number of issues
including but not limited to:
- Antidegradation and Downgrading of Uses - The Attorney
General 's Office recommended that the Commission address these
issues to conform Colorado practice to the federal regulations
concerning water quality standards . 40 C.F.R. . 131 .
- Economic Reasonableness - How it should be factored into permits .
- Un-ionized Ammonia and Nitrite Footnote - The Attorney
General 's Office recommended that this footnote which applies
to numerous stream segments in the state be deleted in view of
a discharger 's mandatory right to review of use classifications
and standards under § 25-8-207.
The Commission considered but put off developing regulations con-
cerning some issues , including but not limited to:
- How water quality standards are to be integrated into permits .
- Basis for determining inconsistency of existing standards under
mandatory review . 25-8-207.
401 Certification
On June 4, 1985 the Commission adopted emergency rules including
twenty-three conditions that may be applied to any 401 certifications
in order to provide additional compliance with certain sections of the
federal Act . An example of one of the conditions is as follows :
"The applicant shall comply with plans for mitigation of unavoidable
injury to beneficial uses of waters of the state, which may include
creation or rehabilitation of wetlands , runoff controls , habitat
improvement , fish replacement, or compensatory payments , submitted
prior to issuance of certification." The hearing on permanent 401
regulaLiaus will be held in August, 1985.
Groundwater
The Commission will consider approving a Notice of Public Rulemaking
at its July 1 , 1985 meeting concerning groundwater regulations . The
hearing on this issue will be in November 1985. The Colorado Water
Congress has participated in an ad hoc committee advising the Colorado
Department of Health on the development of these regulations . Consid-
erable disagreement exists as to whether regulations are needed, the
scope of the regulations and the methodology of the regulatory approach .
Comments on the Water Quality Newsletter and suggestions for inclusion
should be addressed to Jerry W. Raisch, Vranesh and Raisch, P.O.
Box 871 , Boulder, Colorado 80306 (Phone 303-443-6151 )
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