Chapter 11 - § 11.3 • WATER QUALITY

• Jurisdiction: Colorado

§ 11.3 • WATER QUALITY

§ 11.3.1—Clean Water Act (Federal)

The federal Clean Water Act (CWA) established a comprehensive regulatory program for water quality standards, permits, and enforcement.³⁶ The goals of the Clean Water Act were: fishable and swimmable water, and total elimination of pollutant discharges into navigable waters. The Clean Water Act gives jurisdiction predicated on the Commerce Clause, and covers navigable waters, also referenced as "waters of the United States." On May 27, 2015, the Obama Administration's EPA and the U.S. Army Corps of Engineers issued the Clean Water Rule, which amended the definition of "waters of the United States."³⁷ Subsequently, the Trump Administration suspended implementation of the 2015 Clean Water Rule, repealed it in 2019, and replaced the rule in 2020 with the Navigable Waters Protection Rule.³⁸ However, on June 19, 2020, the U.S. District Court for the District of Colorado stayed the Navigable Waters Protection Rule in the State of Colorado, compelling federal agencies to revert to application of earlier regulations and EPA guidance documents for projects in Colorado.³⁹ The Tenth Circuit vacated this decision in 2021.⁴⁰

§ 11.3.2—Water Pollution Control

• C.R.S. §§ 25-8-101 to 25-8-703

The Water Quality Control Act governs protection of the quality of state waters and prevention of water pollution in Colorado. The statute creates the Water Quality Control Commission (Commission),⁴¹ whose purpose is to develop and maintain an effective program for water quality protection. The Commission's duties include classifying state waters, promulgating water quality standards, establishing regulations, and issuing permit regulations.⁴² The statutes expressly protect water rights from material injury.⁴³ The Commission has the power to approve site locations of wastewater treatment facilities and to resolve related issues regarding site approval.⁴⁴ In addition, the Commission may consider future uses of water in its efforts to protect water quality.⁴⁵ The Division of Administration of the Department of Public Health and Environment may obtain a temporary restraining order or injunction to prevent violations or threatened violations of the Act if an action poses imminent and substantial endangerment of water quality that cannot be prevented by modifying or enforcing a permit.⁴⁶ The Water Quality Control Division administers the Colorado Discharge Permit System pursuant to delegated authority to implement a National Pollutant Discharge Elimination System program, monitors waste discharges and state waters, provides water quality certifications pursuant to § 401 of the CWA, develops water quality standards, and assesses impaired waters, among other tasks.⁴⁷

Section 208 of the CWA and the Water Quality Control Act also provide for designated planning agencies to develop regional water quality management plans to address regional water quality issues. The four existing designated planning agencies include North Front Range Water Quality Planning Association (Larimer and Weld Counties), the Northwest Colorado Council of Governments (Pitkin, Eagle, Summit, Grand, and Jackson Counties), the Pikes Peak Area Council of Governments (El Paso, Teller, and Park Counties), and the Pueblo Area Council of Governments (Pueblo County). In areas with no designated management agency, such as the Denver metropolitan area, the state will develop these plans.⁴⁸ A regional wastewater management plan is a requirement of § 208 of the CWA.

Before construction or enlargement of any wastewater treatment facility or construction of a lift station site, the site location and design must be approved by the Division.⁴⁹ In reviewing the site application, the Division considers, among other things, whether construction is consistent with the regional plan. To determine consistency, the Division considers the local long-range comprehensive plan for the area as it affects water quality and any approved regional wastewater management plan for the area.⁵⁰ Designation of facility locations, size, and service area in the regional plan is very important.⁵¹ The Act also encourages consolidation of wastewater treatment plants when feasible and requires plants to minimize potential water quality impacts. Prior to any discharge from a facility, a discharge permit must be obtained pursuant to C.R.S. § 25-8-501. The discharge permit must contain terms and conditions necessary to ensure compliance with water quality standards and applicable control regulations.⁵²

§ 11.3.3—EPA Regulations for Stormwater

Pursuant to the CWA,⁵³ the EPA has promulgated rules controlling pollutants in stormwater runoff.⁵⁴ Stormwater includes stormwater runoff, surface runoff, and drainage from storms and storm melt, which collect in discrete conveyances such as ditches, pipes, and swales and discharge into streams, rivers, or lakes.

Phase I of the stormwater regulations required stormwater permits for all municipalities with populations greater than 100,000. As part of the Phase I stormwater permit, the municipality had to demonstrate an adequate comprehensive plan to reduce the discharge of stormwater pollutants. Such a plan must include procedures to implement and enforce controls to reduce stormwater discharges from new development and redevelopment. Phase I regulation of industrial activities included any construction operation that disturbed land by clearing, grading, or excavating five acres of land or more.⁵⁵ The EPA considers runoff generated during construction activities to have potentially serious water quality impacts. Entities engaged in industrial activities must apply for a permit at least 180 days before the date of any discharge.⁵⁶ Entities specifically engaged in construction activities must submit stormwater applications 90 days before the commencement of construction. The application must include a description of the construction activity, the total area of the site, and proposed measures to control pollutants in stormwater discharge during and after construction, as well as an estimate of the runoff coefficient of the site. Group permits are granted by the state for construction activities under a general permitting program.⁵⁷ The CWA also requires case-by-case designation of stormwater discharge for immediate permitting if stormwater discharge contributes to a violation of a water quality standard or significantly contributes to pollutants in U.S. waters.⁵⁸ The factors the EPA considers in determining whether stormwater discharge is a significant contributor of pollution include: (1) the location of the discharge with respect to waters of the United States; (2) the...