Colorado department of public health and environment




НазваниеColorado department of public health and environment
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D. ECONOMIC REASONABLENESS

Sections 25-8-102(5) and 25-8-202(2), C.R.S., direct the Commission to consider the economic reasonableness of a regulatory action. In addition to its findings related to section 25-8-202(8)(a), the Commission concluded, based on the record of this proceeding, that continuing to apply Colorado stormwater discharge permit requirements to oil and gas construction activities that disturb one or more acres is economically reasonable.

For oil and gas construction activities disturbing five acres or more, the result of this proceeding is to continue the stormwater discharge permit program requirements that have been in place for over 13 years. The Commission found that compliance with these requirements has not created an unreasonable economic burden on the oil and gas industry or significantly harmed the productivity of that industry. This proceeding does not create any new or additional economic burden for this category of activities.

For oil and gas construction activities disturbing one or more but less than five acres, the result of this rulemaking is to reaffirm their coverage under the stormwater discharge permit program. The final effective date for this coverage was June 30, 2005. The evidence submitted does not demonstrate that the economic impact of compliance for one to five acre sites will be different in nature or magnitude than that for five acre and larger sites. This requirement does not create a significant new economic burden.

In addition, the Commission notes that adequate information is now available about appropriate best management practices (BMPs) for managing stormwater runoff from oil and gas construction activities. The evidence submitted indicates that the BMPs applicable to these sites do not differ substantially from BMPs for other construction activities.

E. NEXT STEPS FOLLOWING THIS RULEMAKING

The Commission intends to schedule a public Informational Hearing for early 2007, to review the status of implementation of these provisions for oil and gas construction activities disturbing one or more acres, to assess whether any further actions by the Commission are appropriate to protect water quality.

The Division has stated that it intends to initiate a joint effort with the COGCC, inviting participation from industry, local government and the public, to:

• Examine current stormwater management practices for oil and gas construction activities in Colorado; and

• Explore options to assure that implementation of the Commission’s stormwater permitting requirements and the COGCC regulations will be coordinated in a manner to avoid adverse water quality impacts from these activities while minimizing the administrative burden on these agencies and the regulated community.

The Commission supports and encourages this effort. The Commission also specifically requests that the Division’s efforts include exploration of options for waivers or other forms of flexibility for activities that present a low risk of adverse water quality impacts. The information gathered should be extremely beneficial in informing future Commission decisions about appropriate stormwater discharge permit regulations for these activities. As part of this effort, the Commission specifically encourages examination of opportunities for coordination between this regulation and the COGCC regulations regarding erosion control and stormwater runoff.

PARTIES TO THE RULEMAKING HEARING

1. Colorado Oil and Gas Association
2. City of Grand Junction
3. County of Gunnison
4. County of San Miguel
5. Colorado River Water Conservation District
6. West Slope Water Network
7. Northwest Colorado Council of Governments
8. Noble Energy
9. Colorado Petroleum Association
10. Bureau of Reclamation Western Colorado Area
11. Northern Colorado Water Conservancy District
12. Boulder County
13. Shell Frontier Oil and Gas
14. Cordilleran Compliance Services Inc.
15. Garfield County

61.59 STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE: OCTOBER 10, 2006 RULEMAKING HEARING EFFECTIVE DATE OF NOVEMBER 30, 2006– CONCENTRATED ANIMAL FEEDING OPERATIONS REGULATIONS

The provisions of sections 25-8-202(1)(d) and (2) and 25-8-501 to 25-8-504, C.R.S., provide the specific statutory authority for the amendments to this regulation adopted by the Water Quality Control Commission (Commission). The Commission has also adopted, in compliance with section 24-4-103(4) C.R.S., the following statement of basis and purpose.

BASIS AND PURPOSE

A. APPLICABILITY

The provisions in Commission Regulation No. 61, 5 CCR 1002-61 (Regulation 61) section 61.17 apply to permits for concentrated animal feeding operations (CAFOs).

B. PURPOSE OF AMENDING THE STATE PROGRAM

In February of 2003, the U.S. Environmental Protection Agency (EPA) promulgated regulations for CAFOs which expanded the number of operations covered by the CAFO regulations and included requirements to address the land application of manure from operations. The 2003 CAFO rule (CAFO Rule) more fully developed a framework for state National Pollutant Discharge Elimination System (NPDES) CAFO programs, including a duty for most CAFOs to apply for a NPDES permit and to develop and implement a nutrient management plan (NMP).

On February 28, 2005, the Second Circuit Court of Appeals in Waterkeeper Alliance et al., v. EPA, 399 F. 3d 486 (2nd Cir. 2005) (Waterkeeper), vacated the requirement for CAFOs to apply for a NPDES permit or otherwise demonstrate no potential to discharge, as well as remanded portions of the CAFO Rule back to EPA for further revision and clarification. EPA has not yet revised the CAFO Rule in response to the Waterkeeper decision, with the exception of minor modifications to certain compliance deadlines.

On February 10, 2006, EPA finalized a rule change revising certain compliance dates to allow the EPA more time to revise the CAFO Rule to comply with the Second Circuit Court’s ruling in Waterkeeper. The February 10, 2006 final rule: 1) extends the date by which operations defined as CAFOs as of April 14, 2003, who were not defined as CAFOs prior to that date, must seek permit coverage from February 13, 2006 to July 31, 2007; 2) extends the deadline for operations which became defined as CAFOs after April 14, 2003, and that are not new sources, to seek permit coverage from April 13, 2006 to July 31, 2007; and 3) extends the deadline by which permitted CAFOs are required to develop and implement NMPs from December 31, 2006 until July 31, 2007.

Section 25-8-504(2), C.R.S., of the Colorado Water Quality Control Act (WQCA) and Commission Regulation 61.3(1)(c), prohibit the Commission and Division from imposing permit terms for animal or agricultural waste on farms and ranches which are more restrictive than those mandated by the federal Clean Water Act (CWA). The Commission’s existing Regulation section 61.17 may currently be more stringent than federal law as it presently includes the following: 1) the duty for a CAFO to apply for a NPDES permit absent a showing of actual discharge, which the Court in Waterkeeper vacated; 2) different compliance deadlines than the EPA’s February 10, 2006 rule, and 3) certain permit terms and conditions that differ from Waterkeeper or the EPA’s February 10, 2006 rule.

The current CAFO general permit is based on the CAFO Rule and may contain permit terms and conditions that are more stringent than federal law. As a result, the Division is not able to issue any certifications under the general permit until the regulation and general permit are revised to reflect the current federal law.

To this end, the Commission removed in section 61.17, corresponding portions of the CAFO Rule vacated by the Second Circuit Court in Waterkeeper, including the duty for a CAFO to apply for a NPDES permit and the requirement that CAFOs demonstrate no potential to discharge. In addition, the Commission revised certain compliance deadlines according to EPA’s February 10, 2006 rule that will be reflected in the Colorado Discharge Permit System general permit for CAFOs.

C. DISCUSSION OF AMENDED SECTIONS

Scope and Purpose
The Commission modified section 61.17(1)(a) to make clear that section 61.17 also contains the revised compliance dates for NMPs and newly defined CAFOs as reflected in EPA’s February 10, 2006 rule.

Specific Applicability
The Commission added section 61.17(2)(b) to clarify that any discharge from a CAFO requires a permit except those that are agricultural storm water discharges.

Duty to Apply
The Commission deleted section 61.17(5)(a) as the “duty to apply” for a CAFO permit was one of the portions of the CAFO Rule vacated by the Court in Waterkeeper.

Permit Application Deadlines

The permit application deadlines in this section were revised to be applicable only to CAFOs that discharge.

Sections 61.17(5)(b)(ii)(B) and (C) [now section 61.17(5)(a)(ii)(B) and (C)] were revised to reflect a permit application deadline of July 31, 2007, for newly defined CAFOs.

Section 61.17(5)(c) [now section 61.17(5)(b)] was modified by: 1) deleting sections 61.17(5)(c)(i) and (ii) since it is now up to each CAFO to determine if they wish to continue permit coverage with the understanding that a permit is required to discharge; and 2) revising the section to state that a CAFO that plans to continue with permit coverage should submit a new permit application at least 180 days before the existing permit expires.

Permit Application Requirements

The Commission deleted section 61.17(5)(d)(xv) [now section 61.17(5)(c)(xv)] as the majority of CAFOs will be authorized under a general permit to discharge to any waters of the U.S. without associated water quality-based effluent limitations for receiving waters. For CAFOs not eligible for coverage under a general permit, the Division will work with the applicant to identify the specific receiving waters for which effluent limitations will need to be identified for inclusion in an individual permit.

No Potential to Discharge

The Commission deleted sections 61.17(5)(b)(v) and 61.17(8)(a) as the “no potential to discharge” determination was one of the portions of the CAFO Rule vacated by the Waterkeeper decision.

NMP Development and Implementation Deadline

The Commission modified sections 61.17(5)(d)(xiv) [now section 61.17(5)(c)(xiv)] and 61.17(6)(a)(iii)(B) to reflect a deadline of July 31, 2007, which is the revised date by which CAFOs are required to develop and implement NMPs. In addition, the Commission modified section 61.17(8)(c) [now section 61.17(8)(b)] to reflect that the deadline for NMP development and implementation for existing source CAFOs is July 31, 2007 or upon the date of permit coverage, whichever is later, and to clarify that new source CAFOs must develop and implement a NMP upon the date of permit coverage. The specific language “or upon date of permit coverage, whichever is later” was added by the Commission to address a deadline “gap” the Commission believes existed in the February 10, 2006 rule for CAFOs that seek to obtain coverage under a permit prior to July 31, 2007, but are not certified under a permit by that date.

Administrative Revisions

The Commission modified sections 61.17(5)(b)(ii)(A) [now section 61.17(5)(a)(ii)(A)] and 61.17(5)(d)(vi) [now section 61.17(5)(c)(vi)] to make the existing language consistent with the CAFO Rule. Regarding the request in the application for the number of animals at the CAFO, the Commission clarifies that the number provided should be the maximum number of animals that the CAFO intends to stock at any one time, which may or may not be the maximum capacity of the facility.

The Commission modified sections 61.17(5)(b)(i) and (iv) [now sections 61.17(5)(a)(i) and (iv)] to reference the correct subsections.

The Commission modified section 61.17(5)(b)(ii) [now section 61.17(5)(a)(ii)] to clarify that June 30, 2004 is the effective date that is referred to.

The Commission modified section 61.17, as appropriate, where dates in the regulation have elapsed.

PARTIES/MAILING LIST TO THE RULEMAKING HEARING

1. The Colorado Livestock Association
2. The Colorado Farm Bureau
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