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<br />. <br /> <br />. <br /> <br />upon the water users of the river to any greater extent <br />than Congress has anticipated and to continue acting through <br />state legislation, regulations and policies to protect the <br />compact allocated waters for future beneficial use. <br /> <br />Plan of Implementation <br /> <br />The Plan of Implementation proposed by the Commission <br />continues the basin-wide approach adopted by the Forum and <br />the states in 1975 and 1976. We believe it is proper for <br />the primary control mechanism to be the federally funded <br />salinity control projects approved by Congress in Title <br />II of the 1974 Act since as has already been discussed <br />above, the federal government has rightfully recognized <br />its prime responsibility to control the qulk of salinity <br />contribution which comes from natural sources on federally <br />owned or controlled land. <br /> <br />Chevron is somewhat concerned by the proposal to adopt <br />the plan of implementation as policy rather than to continue <br />its existence as a regulation. It is unclear what the <br />Commission's intent is in adopting this as a policy rather <br />than as a regulation. However, we believe that the recent <br />case of Denver v. Lamm, District Court for the City and <br />County of Denver, 79CV5l33, is decisive on the issue of <br />"policy approval" of matters which may be binding on those <br />regulated by the Commission. Section 102(15) of the state <br />Administrative Procedure Act, C.R.S. 24-4-101, et ~., <br />as amended, defines "rule" as "the whole or any-part of <br />every agency statement of general applicability and future <br />effect implementing, interpreting or declaring law or pOlicy <br />or setting forth the procedure or practice requirements <br />of any agency." 'Rule' includes 'regulation'." C.R.S. 24- <br />4103(1) provides an exception to the rule making procedure <br />for "interpretative rules or general statements of policy <br />which are not meant to be binding as rules or rules of <br />agency organization." We believe that the Denver v. Lamm <br />case controls on the point of this exception as to-wh~ <br />statements of policy are to be considered binding. . Based <br />upon the holding in that case, the Commission should adopt <br />this plan of implementation pursuant to rule making pro- <br />cedures. <br /> <br />Besides the federally funded salinity control projects, <br />the proposed plan of implementation incorporates the use <br />of the NPDES point source program and the 208 water quality <br />management plans. The proposed plan of implementation sets <br />forth a policy requiring NPDES permits to limit discharges <br />so that they contain no salt where practicable. We do not <br />believe that the qualifier "practicable" has been made suf- <br />ficiently clear to recognize-that the no-salt return policy <br />will be implemented in a manner which will not impede or <br /> <br />-5- <br /> <br />\~~~ <br />