DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
Water Quality Control Commission
PROCEDURAL RULES
5 CCR 1002-21
. . . .
21.3	Rulemaking Procedures
. . . .
C.	Notice
. . . .
3)	Except as specified in section 21.3(M) with respect to classifying state waters, setting water quality standards, or promulgating control regulations, and in section 21.3(N) with respect to temporary or emergency rules, public rulemaking proceedings shall not be held less than twenty days after publication of notice as provided in this section. Publication shall be by electronic publication pursuant to section 24-4-103(11)(g), C.R.S.
. . . .
21.4	Adjudicatory Procedures
A.	Applicability
. . . .
2)	The Commission shall provide the opportunity for a formal public adjudicatory hearing in the following cases:
. . . .
b)	Appeals of the determination of civil penalties for violations of the Act or any control regulation promulgated pursuant to the Act by the Executive Director or his/her designee pursuant to section 25-8-608, C.R.S., except for penalties;
(i)	for violations of surface water discharge permits or portions thereof;
(ii)	for discharging to surface waters without a permit; or
(iii)	for engaging in activities without a surface water discharge permit when such a permit is required.
. . . .
e)	Appeals of final determinations by the Division on notices of alleged violations, pursuant to section 21.11(D) of these rules, except for alleged violations: 
(i)	of surface water discharge permits or portions thereof;
(ii)	for discharging to surface waters without a permit; or
(iii)	for engaging in activities without a surface water discharge permit when such a permit is required.
. . . .
j)	Hearings concerning Division determinations regarding self-evaluation disclosures pursuant to section 25-1-114.5(5), C.R.S.
3)	The Division shall provide the opportunity for a formal public adjudicatory hearing in the following cases:
. . . .
b)	Appeals of the determination of civil penalties shall be heard by the Executive Director or his/her designee, pursuant to section 25-8-608, C.R.S. for:
(i)	violations of any surface water discharge permit or portions thereof;
(ii)	discharging to surface waters without a permit; or
(iii)	engaging in activities without a surface water discharge permit when such a permit is required.
. . . .
d)	Notices of alleged violations, pursuant to sections 25-8-602 and 603, C.R.S., for:
(i)	 violation of an order, permit, or control regulation;
(ii)	discharging to surface waters without a permit; or
(iii)	engaging in activities without a surface water discharge permit when such a permit is required.
. . . .
D.	Party Status
. . . .
2)	A person who may be affected or aggrieved by the agency action shall be admitted as a party to the proceeding upon filing a timely written request.  One original, email attachment or fax of each party status request shall be submitted in accordance with the requirements of this subsection.
. . . .
21.11	Hearings on Notice of Alleged Violations
. . . .
D.	All determinations by the Division concerning notices of alleged violations, except alleged violations of surface water discharge permits or portions thereof, operating without a permit, or for engaging in activities without a surface water discharge permit when such a permit is required, must be appealed to the Commission by any person adversely aggrieved or affected as a prerequisite to the right of judicial review pursuant to sections 24-4-105 and 106, C.R.S. The appeal shall be made in writing to the office of the Administrator of the Commission and must be postmarked no later than 30 days after the date of the mailing of the Water Quality Information Bulletin sent to those persons on the mailing list maintained by the Division pursuant to section 25-8-302(1)(e), C.R.S. Within 60 days of the filing of the appeal the Commission shall commence a hearing to consider such appeals in accordance with section 24-4-105, C.R.S. and section 21.4 of this regulation; provided, that, if the Division has previously held a hearing regarding the alleged violations under section 24-4-105, C.R.S., the Commission’s review will be limited to record review of the Division’s final determination.
21.12	Hearings on Civil Penalties
. . . .
B.	Penalties shall be determined by the Executive Director or his/her designee and may be appealed to the Commission or the Executive Director in accordance with section 21.4. 
An appeal to the Executive Director or his/her designee shall be made in writing to the Director of the Water Quality Control Division and shall be postmarked no later than 30 days after the issuance of the penalty determination.  An appeal to the Commission shall be made in writing to the office of the Administrator of the Commission and shall be postmarked no later than 30 days after the issuance of the penalty determination. In his/her written appeal the appellant shall also state those mitigating factors which the appellant desires to raise before the Commission or the Executive Director or his/her designee.  
. . . .
21.37	Statement of Basis, Specific Statutory Authority and Purpose (January 10, 2011 Rulemaking, Effective March 2, 2011)
The provisions of sections 25-8-202 and 401 provide the specific statutory authority for adoption of these regulatory requirements. The Commission also adopted the following statement of basis and purpose.
Basis and Purpose
In 2007 the Commission adopted new procedural rules regarding appeals of certain Division determinations. The revised rules reflected an attempt to reconcile conflicting statutory provisions within the Colorado Water Quality Control Act. While the amended rules did address the statutory conflict, the current interpretation of the statutory provisions has led to additional confusion regarding appeals procedures, including unwieldy bifurcation of appeals proceedings. Accordingly, the Commission is adopting revisions to the procedural regulations to clarify, improve and streamline the appeals process.
There are three key statutory provisions that have created the current state of affairs. First, C.R.S. § 25-8-202(1)(k) states: “The commission shall…act as an appellate body to review all determinations by the division except those determinations dealing with surface water discharge permits or portions thereof.” Second, C.R.S. § 25-8-603 provides that appeals of notices of violation (NOVs) for violations of orders, permits or control regulations shall be heard by the Division. Third, C.R.S. § 25-8-608 provides that the Division makes a final decision regarding penalties, and such decisions may be appealed to the Commission, without making a distinction for penalties associated with permit violations. Together, these provisions create a conflict and in some instances provide for two administrative hearings, and in other instances they may result in bifurcated proceedings. 
Prior to 2007, the phrase “dealing with permits” from Section 202(1)(k) was interpreted to include not only the issuance of permits (and any renewals, modifications or appeals thereof), but also violations of a surface water discharge permit and violations for discharging without a permit. Under that interpretation, the Commission was essentially prevented from hearing appeals of all enforcement proceedings, whether the alleged violator had a permit or not. 
Since 2007, the phrase “dealing with permits” has been interpreted to exclude violations for discharging without a permit. In 2007, the Commission amended its procedural regulations (21.4(A)(2) and (3), 21.11, and 21.12) to reflect this interpretation. Appeals of recent enforcement cases have revealed unanticipated complications with this approach. When the Division takes enforcement action against a party both for discharging without a permit as well as violations of a permit, and the party appeals violations and/or penalties associated with both, the current regulations result in the matter being bifurcated. The portion “dealing with” violations of a surface water discharge permit is subject to hearing by the Division, and the portion not dealing with a permit (i.e., failure to have a permit) is subject to hearing by the Commission. In addition to the bifurcation issue, the current regulations create the questionable result that a party with a permit is entitled to only one administrative hearing while a party which has failed to obtain a permit is entitled to two administrative hearings. 
Both interpretations of the phrase “dealing with permits” are defensible. In order to clarify and streamline the appeals process, the Commission is adopting new procedural regulations essentially reverting back to the interpretation that existed prior to 2007, wherein the phrase “dealing with permits” is interpreted broadly such that the Commission is prohibited from hearing an appeal of an enforcement action for discharges to surface water or for penalties associated therewith. The Commission is also adopting regulations specifying that appeals of enforcement actions for the failure to obtain a stormwater permit when one is required are heard by the Division. See 21.4.A(2)(b)(iii), 21.4.A(2)(e)(iii),21.4.A(3)(b)(iii), and 21.4.A(3)(d)(iii).  These regulatory amendments are not intended to change the appeals process for any other type of Division determinations that are heard by the Commission, such as notices of violation and/or penalties for discharges to groundwater with or without a permit.
The Commission is also adopting regulations specifying that hearings concerning Division determinations regarding self-evaluation disclosures are heard by the Commission, pursuant to C.R.S. § 25-1-114.5(5). 
The regulation was amended to reduce the number of copies required to be submitted of a request for party status in an adjudicatory hearing. 
The Commission also amended the provisions regarding publication of notices of rulemaking to be consistent with legislative changes made to the Administrative Procedures Act.
PARTIES TO THE RULEMAKING HEARING
1.	City and County of Denver
2	Colorado River Water Conservation District