BOARD02473

• Board Meeting Date: 3/26/2001
• Description: Joint Water Quality Meeting Follow-Up
• Board Meetings - Doc Type: Memo

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12. Section 401 of the Clean Water Act sets forth: a process through which any federal agency
seeking to issue a pennit that may result in any discharge to navigable waters must obtain a
certification that the activity pennitted will not cause a violation of state water quality standards.
In pertinent part ~401 provides as follows:

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(a) Any applicant for a Federal license or permit to conduct any activity including, but not
limited to, the construction or operation of facl:i1ities which may result in any discharge
into the navigable waters, shall provide the Ii~ensing or pennitting agency a certification
from the State in which the discharge originates or will originate... that any such
discharge will comply with the applicable provisions of sections ... 1313 .., of this title.

(d) Any certification provided under this section shall set forth any effluent limitations
and other limitations and monitoring requirenltents necessary to assure that any applicant
for a Federal license or pennit will comply wlth any applicable effluent limitations and
other limitations, ... and with any other appropriate requirement of State law set forth in
such certification and shall become a condition on any Federal license or pennit subject
to the provisions of this section," (Emphasis ~upplied),

13. Colorado regulations regarding 401 certificatj<)Ds require compliance with water quality ~
standards, the antidegradationregulation and use cl~sifications. 5 C,C.R. ~ 1002-82.1(5). 1II
These regulations also provide for the certification, cbnditional certification or denial of
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certification. 5 C.C.R. ~ 1002-82.5. The regulation ill place at the time that the Division made
its decision listed best management practices for the Oivision to impose as needed. In addition, .
the regulations-then and now-provide a specific pl,'ocess whereby the Division can include
additional conditions in a conditional certification not specifically authorized in the regulation-
and even beyond the Division's legal authority to impose-where the applicant agrees to the
imposition of such conditions. Finally, the regulatioqs set forth a process whereby the Division
is to consult broadly with interested entities where, b*t for ~ 25-8-104, the Division would deny
the certification due to violations of water quality sta#dards, classifications or the antidegradation
rule. I

14. The Colorado Water Quality Control Act requires that the Division consult with the state
engineer and the water conservation board before mal<ing any decision that could materially
injure water rights. Colo. Rev. Stat. ~ 25-8-104(2)(d) (2000).
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IS. The Water Quality Control Act provides that lhe Division reviews and issues Clean
Water Act ~401 certifications. Colo. Rev. Stat. ~ 25-S-302(1)(t) (2000), The Division's
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certification becomes the final action of the state absent appeal and modification by the
Commission. Any person affected by a certification may appeal the Division's certification to
the Commission. Colo. Rev. Stat. ~25-8-202(1)(k) (7000). The Commission shall hear such
appeals pursuant to the provisions for fonnal adjudicatory hearings in the Colorado 4
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