DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
WATER QUALITY CONTROL COMMISSION
REGULATION NO. 82
401 CERTIFICATION REGULATION
5 CCR 1002-82
_____________________________________________________________________
This regulation is promulgated pursuant to sections 25-8-202 and 25-8-205, C.R.S.
82.1	PURPOSE
The purpose of this regulation is to implement section 25-8-302(1)(f) C.R.S. which became law on June 4, 1985. The Commission construes this section as a direction by the Colorado legislature to define what conditions can be required by the Water Quality Control Division in connection with certification of federal licenses and permits under Section 401 of the Federal Clean Water Act, consistent with the Colorado Water Quality Control Act. This regulation authorizes the Water Quality Control Division to certify, conditionally certify, or deny certification of federal licenses and permits in accordance with Section 401 of the Federal Clean Water Act and sets forth certification conditions applicable to all certifications except for the federal 402 permit certifications and the procedures for developing conditions to be included with certification, where necessary.  The Division maintains a policy document with Best Management Practices (BMPs) that may be considered in developing conditions.
By this regulation and pursuant to section 25-8-302(1)(f) C.R.S., General or Nationwide permits under Section 404 of the Federal Act are certified without the addition of BMPs or other conditions, and no further action on such permits by the applicant or the Division is required.
This regulation applies to Water Quality Control Division certification of permits issued by the U.S. Army Corps of Engineers pursuant to Section 404 of the Clean Water Act, Federal Energy Regulatory Commission licenses for hydropower Projects, and other federal permits which involve a discharge into waters of the state, including permits issued by the Environmental Protection Agency (EPA) pursuant to section 402 of the Federal Act.
82.2	DEFINITIONS
(1)	401 Certification means that certification required by Section 401 of the federal Clean Water Act, 33 U.S.C. Section 1341.
(2)	402 Permit means that individual permit issued by the U.S. Environmental Protection Agency for the discharge from federal facilities as described in Section 402 of the Federal Act.
(3)	404 Permit means that individual permit issued by the U.S. Army Corps of Engineers for the discharge of dredged and fill material as described in Section 404 of the Federal Act.
(4)	Best Management Practices - BMPs mean those structural and non-structural methods, measures or practices implemented to prevent, reduce, or mitigate adverse water quality impacts resulting from construction and operation of a Project.
(5)	Certification means that determination by the Division that the Project will comply with the Basic Standards and Methodologies for Surface Water, Regulation No. 31 (5 CCR 1002-31), the Basic Standards for Ground Water, Regulation No. 41 (5 CCR 1002-41), surface and ground water classifications and water quality standards, and all other applicable water quality requirements for the affected waters. Such certification is subject to section 25-8-104, C.R.S.
(6)	USACE means U.S. Army Corps of Engineers.
(7)	Division means the Water Quality Control Division, Colorado Department of Public Health and Environment.
(8)	Federal Act means the Clean Water Act, 33 U.S.C. Section 1251 et seq., as amended.
(9)	FERC means the Federal Energy Regulatory Commission.
(10)	Project means an activity which may result in a discharge into state waters and for which a federal license or permit is required.
82.3	APPLICABILITY AND SCOPE
(A)	No federal license or permit for which water quality certification is required under Section 401 of the Federal Act may be issued without the certification provided pursuant to these regulations, except as provided in subsection 82.3(B).
(B)	General or nationwide permits to discharge dredged or fill material issued under section 404 of the federal act are authorized for use without additional action by the Division.
(C)	Any 401 certification issued by the Division pursuant to these regulations shall apply to both the construction and operation of the Project for which a federal license or permit is required, and shall apply to the water quality impacts associated with the Project
82.4	APPLICATION FOR WATER QUALITY CERTIFICATION
(A)	USACE SECTION 404. Application for state water quality certifications shall include:
(1)	A completed copy of the Division’s Clean Water Act (CWA) Section 401 Water Quality Certification request form. 
(2)	A signed copy of the federal application for a USACE Section 404 permit to discharge dredged or fill material; 
(3)	A map of Project location, a site plan, and a listing of the selected BMPs chosen for the Project, in accordance with subsection 82.6(B) of this regulation; and
 (4)	Appropriate fees for processing the 401 certification. Tiers are determined by the Division at the time of application. For Tier 1 and 2 Projects, application fees are due at the time the application is submitted to the Division.  For Tier 3 and 4 Projects, the Division will meet with the applicant before applications are submitted to develop a draft billing agreement. These fees are as follows:

Tier	Description	Cost	
1	Projects that incur minimal costs and water quality impacts	$1,122	
2	Projects that incur moderate costs and potential water quality impacts	$3,876	
3	Projects that involve large watershed area, a high degree of complexity, or a high potential for water quality impacts.	Calculated on an hourly rate based on the actual costs of Division staff and contractor time.	
4	Projects that involve multiple or large watershed areas, a very high degree of complexity, very high potential for water quality impacts, or a high level of public involvement.	Calculated on an hourly rate based on the actual costs of Division staff and contractor time.	

(B)	402 PERMITS ISSUED BY EPA. For 402 permits issued by EPA, application for certification shall be made in a manner determined by the Division, but at a minimum, shall include a copy of the application for the 402 permit submitted to EPA.
(C)	FERC AND ALL OTHER FEDERAL LICENSES OR PERMITS. For FERC and all other federal licenses or permits for which water quality certifications are required, other than Section 404 permits as referenced in subsection 82.4(A), and Section 402 permits referenced in subsection 82.4(B), application for 401 certifications shall be made via letter to the Division. Fees will be determined consistent with Section 82.4(A)(4) above. The letter of application shall contain the following information.
(1)	Name, address, and phone number of the applicant;
(2)	The federal license or permit for which certification is requested;
(3)	A description of the  Project which is expected to result in a discharge into waters of the state;
(4)	All water quality data, reports, and analyses which describe the existing and projected water quality for those waters affected by the Project;
(5)	A map of Project location, a site plan, and a listing of the selected BMPS: chosen for the Project, in accordance with subsection 82.6(B) of this regulation.
(D)	ADDITIONAL INFORMATION.  The Division may request additional water quality related information from the applicant if the information contained in the federal application or the application for certification is deemed insufficient to reach a certification decision.
82.5	DIVISION PROCEDURES AND DETERMINATIONS
(A)	Division Certification Determination:
(1)	In determining whether to issue a 401 certification, the Division shall consider and review the certification application submitted, the water quality impacts of the construction and operation of the Project, associated National Environmental Policy Act (NEPA) documents and the following, as appropriate:
(a)	Antidegradation review pursuant to the procedures in the Procedural Rules, Regulation No. 21. (5 CCR 1002-21), section 21.16, and the Basic Standards and Methodologies for Surface Water Regulation No. 31 (5 CCR 1002-31), section 31.8, except that:
For USACE Section 404 permits and FERC licenses, “significance determinations” for reviewable waters under section 31.8(3)(c) shall be made with respect to the net effect of the new or increased water quality impacts of the proposed Project, taking into account any environmental benefits within the Project area, including any water quality improvements, or mitigation measures proposed to be implemented within the Project area.  Where possible, water quality improvements, or mitigation measures shall be located in the same watershed where the reviewable segment(s) are located.  
 (b)	The Basic Standards and Methodologies for Surface Water Regulation No. 31 (5 CCR 1002-31), and the Basic Standards for Ground Water Regulation No. 41 (5 CCR 1002-41);
(c)	Classifications and water quality standards assigned to the waters affected by the Project at the date of certification for which a federal license or permit is required;
(d)	Any applicable effluent limitations or control regulations;
(e)	Best Management Practices required by this regulation in subsection 82.6(B);
(f)	The stormwater discharge provisions of the Colorado Discharge Permit System, Regulation No. 61 (5 CCR 1002-61);
(g)	Water quality-related conditions in any applicable local, state, and federal permits, licenses or agreements.
(h)	Comments and other information raised during the public comment period outlined in subsection 82.5(B).
(i)	Any Project specific conditions proposed by the applicant and agreed to by the Division, including any condition beyond the authority of the Division to require.
(2)	Regular Certification. If, after consideration of the elements in subsection 82.5(A)(1), the Division concludes that there is reasonable assurance that the Project for which a federal license or permit is required will comply with all applicable requirements if constructed, operated, and maintained as designed, the Division shall issue a certification without additional conditions for the license or permit.
(3)	Conditional Certification. If, after consideration of the elements in subsection 82.5(A)(1), the Division concludes that  there is reasonable assurance that the Project for which certification is required will comply with all applicable requirements only if one or more conditions are placed on the license or permit to mitigate the water quality impacts of the construction and operation of the Project, the Division shall issue a 401 water quality certification with such conditions included. Any water quality improvement, or mitigation measures taken into account in making the significance determination referenced in section 82.5(A)(1)(a) shall be incorporated as conditions of the 401 certification. The Division may condition water quality certification on adaptive management to address changes in the Project’s predicted impacts and/or future changes in applicable water quality classifications and standards.  The Division, as a part of the conditional certification, may require water quality monitoring, based on site-specific circumstances, to ensure that BMPs are performing as designed and that the Project complies with all applicable conditions. Any conditions imposed by the Division shall be consistent with subsection 25-8-104 C.R.S. Any condition acceptable to the applicant and the Division that is beyond the authority of the Division to impose may also be included as a condition to the certification. Prior to issuance of such conditional certification, the Division may hold one or more meetings or conferences to inform the applicant of the need for such conditions and to discuss options for the Project including redesign or modification.
(4)	Emergency Certification of Section 404 Permits. Whenever the USACE makes a determination that it will process an application for a section 404 permit pursuant to its Procedures for Emergency Authorizations, 33 CFR 325.2(e)(4), the Division may issue a section 401 certification pursuant to subsections 82.5(A)(2) or 82.5(A)(3) on an emergency basis under subsection 82.5(B)(3), if it determines that such certification is necessary to preserve public health or welfare. In issuing such certification, the Division shall take into consideration the factors listed in section 82.5(A)(1) to the extent practicable, and may modify or waive, to the extent necessary, the certification requirements of section 82.6
(5)	Denial of Certification. If, after consideration of the elements in subsection 82.5(A)(1), the Division concludes that there is not a reasonable assurance that the Project for which a federal license or permit is required will comply with all applicable requirements even with the addition of conditions, the Division shall deny certification of the license or permit. Prior to denial of certification, the Division may hold one or more meetings or conferences to inform the applicant of the preliminary decision to deny certification and to allow the applicant to make necessary modifications to the Project leading toward certification, if possible.
(6)	Certification shall not be denied where the imposition of conditions or denial would result in material injury to water rights as prohibited under section 25-8-104 C.R.S. In such case, the Division shall identify in the certification and in the Water Quality Information Bulletin that section 25-8-104 C.R.S. has been applied. However, the Division and the Project proponents shall, in concert with commenters to the certification proceeding, including the involved federal agencies, examine and implement, where appropriate, means to prevent, reduce or mitigate water quality impacts identified during the permitting process and associated with the exercise of water rights. In such case, agreed upon conditions to ensure that the federally permitted activity will comply with effluent limitations, water quality classifications and standards and other applicable water quality control requirements that may be imposed under state law shall be included in the Division’s certification determination.
(B)	Public Notice
In preparing a certification determination the Division shall prepare both a draft and final certification.
(1)	The draft certification shall be noticed in the Water Quality Information Bulletin, and shall include a request for comments to be submitted to the Division within thirty (30) days of publication in the bulletin. The draft certification shall contain:
(a)	If applicable, preliminary antidegradation determination in accordance with the Basic Standards and Methodologies for Surface Water, (5 CCR 1002-31), Regulation 31.8; and
(b)	A draft certification determination.
(2)	The final determination shall be prepared following the thirty day (30) public comment period on the draft certification. The final certification shall include any changes determined appropriate by the Division based upon public comments and information raised during the public comment period for the draft certification. Notice of a final antidegradation determination and final certification determination will be published in the Water Quality information Bulletin.
(3)	Emergency Certification of Section 404 Permits. Subsections 82.5(B)(1) and (B)(2) notwithstanding, whenever the USACE makes a determination that it will process an application for a section 404 permit pursuant to its Procedures for Emergency Authorizations, 33 CFR 325.2(e)(4), the Division may issue an emergency section 401 certification pursuant to subsection 82.5(A)(4). Reasonable efforts will be made to receive comments from interested Federal, state and local agencies and the affected public.
(C)	Other Division Procedures:
(1)	The Division shall, where appropriate, or where requested, provide to commenters to the certification proceeding and to others upon request, its written analysis of its basis for certification, including identification of the stream segments affected, the potential water quality impacts identified as a result of the Project, and the results of any actions under subsection 82.5(A)(6) to prevent, reduce or mitigate water quality impacts associated with the exercise of water rights. A copy of any such analysis shall be provided to the federal permitting or licensing agency at the time of certification.
(2)	Where possible, the 401 certification process should be coordinated or consolidated with the scoping and review processes of other agencies which have a role in a proposed Project in an effort to minimize costs and delays for such Projects.
(3)	When an issue involving section 25-8-104 C.R.S. is raised, the Division shall consult with the State Engineer and the Water Conservation Board in determining whether a contemplated 401 condition or denial may be inconsistent with section 25-8-104 of the Water Quality Control Act.
(4)	The Division shall complete the certification decision as soon as practicable following the expiration of the public comment period provided for in subsection 82.5 (B). If the federal agency to whom license or permit application has been made has determined that an environmental impact statement, public hearing, or other action to supplement the body of information for the application is necessary, the Division may delay the issuance of a certification decision until a time not later than sixty (60) days, following the close of the administrative record, if it finds that such process may produce information relevant to the certification decision. If the Division finds that a delay is unavoidable, the Division shall provide the applicant notice of the delay, including an explanation of the reason for the delay. Any failure of the Division to issue a certification decision within the timeframes established above shall not be deemed either an issuance or a denial of certification, except as provided in the Federal Act. The applicant for certification may waive the decision time frames above upon request by the Division.
(D)	Except for data determined to be confidential under section 25-8-405(2) C.R.S., or other applicable law, all reports and information prepared and submitted in accordance with the requirements herein shall be available for public inspection at the offices of the Division.
(E)	401 certification does not convey any property rights in either real or personal property, or any exclusive privileges, nor does it authorize any injury to private property or any invasion of personal rights, nor any infringement of federal, state, or local laws or regulations.
(F)	Nothing herein shall preclude the Division from initiating action for enforcement as may be provided by law.
82.6	CERTIFICATION REQUIREMENTS:
(A)	The following requirements shall apply to all certifications:
(1)	Authorized representatives from the Division shall be permitted to enter upon the site where the construction activity or operation of the Project is taking place for purposes of inspection of compliance with BMPs and certification conditions.
(2)	In the event of any changes in control or ownership of facilities where the construction activity or operation of the Project is taking place, the successor shall be notified in writing by his predecessor of the existence of the BMPs and certification conditions. A copy of such notification shall be provided to the Division.
(3)	If the permittee discovers that certification conditions are not being implemented as designed, or if there is an exceedance of water quality standards despite compliance with the certification conditions and there is reason to believe that the exceedance is caused, in whole or in part, by the Project, the permittee shall verbally notify the Division of such failure or exceedance within two (2) working days of becoming aware of the same. Within ten (10) working days of such notification, the permittee shall provide to the Division, in writing, the following:
(a)	In the case of the failure to comply with the certification conditions, a description of (i) the nature of such failure, (ii) any reasons for such failure, (iii) the period of non-compliance, and (iv) the measures to be taken to correct such failure to comply; and
(b)	In the case of the exceedance of a water quality standard, (i) an explanation, to the extent known after reasonable investigation, of the relationship between the Project and the exceedance, (ii) the identity any other known contributions to the exceedance, and (iii) a proposal to modify the certification conditions so as to remedy the contribution of the Project to the exceedance.
(4)	Any anticipated change in discharge location and/or quantities associated with the Project which may result in water quality impacts not considered in the original certification must be reported to the Division by submission of a written notice by the permittee prior to the change. If the change is determined to be significant, the permittee will be notified within ten days, and the change will be acknowledged and approved or disapproved.
(5)	Any diversion from or bypass of facilities necessary to maintain compliance with the terms and conditions herein is prohibited, except (i) where unavoidable to prevent loss of life or severe property damage, or (ii) where excessive storm drainage or runoff would damage any facilities necessary for compliance with limitations and prohibitions herein. The Division shall be notified immediately in writing of each such diversion or bypass.
(6)	At least fifteen days prior to commencement of a Project in a watercourse, which the Division has certified, or conditionally certified, the permittee shall notify the following:
(a)	Applicable local health departments;
(b)	Owners or operators of municipal and domestic water treatment intakes which are located within twenty miles downstream from the site of the Project; and
(c)	Owners or operators of other intakes or diversions which are located within five miles downstream from the site of the Project.
The permittee shall maintain a list of the persons and entities notified, including the date and form of notification.
(7)	Immediately upon discovery of any spill or other discharge to waters of the state not authorized by the applicable license or permit, the permittee shall notify the following;
(a)	Applicable local health departments;
(b)	Owners or operators of municipal and domestic water treatment intakes which are located within twenty miles downstream from the site of the Project; and
(c)	Owners or operators of other intakes or diversions which are located within five miles downstream from the site of the Project.
The permittee shall maintain a list of the persons and entities notified, including the date and form of notification.
(8)	Construction operations within watercourses and water bodies shall be restricted to only those Project areas specified in the federal license or permit
(9)	No construction equipment shall be operated below the existing water surface until the Division is notified. 
(10)	Work should be carried out diligently and completed as soon as practicable. To the maximum extent practicable, discharges of dredged or fill material shall be restricted to those periods when impacts to designated uses are minimal.
(11)	The Project shall incorporate provisions for operation, maintenance, and replacement of BMPs to assure compliance with the conditions identified in this section, and any other conditions placed in the permit or certification. All such provisions shall be identified and compiled in an operation and maintenance plan which will be retained by the Project owner and available for inspection within a reasonable timeframe upon request by any authorized representative of the Division.
(12)	The use of chemicals during construction and operation shall be in accordance with the manufacturers' specifications. There shall be no excess application and introduction of chemicals into state waters.
(13)	All solids, sludges, dredged or stockpiled materials and all fuels, lubricants, other toxic materials shall be controlled in a manner so as to prevent such materials from entering state waters.
(14)	All seed, mulching material and straw used in the Project shall be state-certified weed-free.
(15)	Discharges of dredged or fill material in excess of that necessary to complete the Project are not permitted.
(16)	Discharges to state waters not identified in the license or permit and not certified in accordance therewith are not allowed, subject to the terms of any 401 certification.
(17)	Except as otherwise provided pursuant to subsection 82.7(D), no discharge shall be allowed which causes non-attainment of a narrative water quality standard identified in the Basic Standards and Methodologies for Surface Waters, Regulation No. 31 (5 CCR 1002-31), including, but not limited to discharges of substances in amounts, concentrations or combinations which:
(a)	Can settle to form bottom deposits detrimental to beneficial uses; or
(b)	Form floating debris, scum, or other surface materials sufficient to harm existing beneficial uses; or
(c)	Produce color, odor, or other conditions in such a degree as to create a nuisance or harm existing beneficial uses or impart any undesirable taste to significant edible aquatic species, or to the water; or
(d)	Are harmful to the beneficial uses or toxic to humans, animals, plants, or aquatic life; or
(e)	Produce a predominance of undesirable aquatic life; or
(f)	Cause a film on the surface or produce a deposit on shorelines.
(B)	Best Management Practices:
(1)	Best management practices are required for all Projects for which Division certification is issued except for section 402 permits. Project applicants must select BMPs to be employed in their Project. The Division maintains a policy document with best management practices.
(2)	All requests for 401 certifications shall include a map of the Project location, a site plan, and a listing of the selected BMPs chosen for the Project. At a minimum, each Project must provide for the following:
(a)	Permanent erosion and sediment control measures that shall be installed at the earliest practicable time consistent with good construction practices and that shall be maintained and replaced as necessary throughout the life of the Project
(b)	Temporary erosion and sediment control measures that shall be coordinated with permanent measures to assure economical, effective, and continuous control throughout the construction phase and during the operation of the Project.
82.7	IMPLEMENTATION AND ENFORCEMENT OF CERTIFICATIONS
The Division is authorized to utilize the following approaches to ensure that the certification is implemented and maintained:
(A)	Upon receipt of information that water quality standards are being exceeded as a consequence of the Project's construction or operation, the Division, after consultation with the permittee and notification of the appropriate federal permitting agency, may modify the certification and provide a copy of such modification to the federal permitting agency.
(B)	Upon receipt of information indicating that one or more certification conditions have not been complied with during the construction or operation of a Project, the Division shall notify the appropriate federal permitting agency in writing and request that necessary action be taken to implement such conditions as contemplated in Section 401(D) of the Federal Act. A copy of any such notification and request shall be sent to the permittee. The Division shall remain in communication with the federal permitting agency and the permittee regarding the progress towards implementation of the conditions until satisfactory compliance has been obtained, or until the federal agency has completed enforcement action.
(C)	If the procedures in subsection 82.7(A) and (B) above are unsuccessful at implementing the certification, in addition to enforcement authorities provided under the Water Quality Control Act, the Division may initiate procedures pursuant to section 24-4-104, C.R.S., to suspend certification for a defined period of time to enable the applicant to comply with the certification conditions or submit a new certification application, or to revoke the water quality certification.
(D)	Temporary exceedances of water quality standards shall be deemed in compliance with applicable provisions so long as such exceedance will not be of a degree to cause conditions acutely toxic to aquatic life or to exceed standards assigned to protect a domestic drinking water supply where that is a classified use.
82.8	REVIEW OF DIVISION 401 CERTIFICATIONS
401 certification decisions of the Division shall be reviewable pursuant to section 25-8-302(1)(f) C.R.S., and the applicable provisions of the State Administrative Procedure Act.
82.9	SEVERABILITY
The provisions of this regulation are severable, and if any provisions or the application of the provisions to any circumstances is held invalid, the application of such provision to other circumstances, and the remainder of this regulation, shall not be affected thereby.
82.10	Reserved
82.11	Reserved.
82.22	STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY, AND PURPOSE: NOVEMBER 13, 2018 RULEMAKING; EFFECTIVE JANUARY 31, 2019.
The provisions of 25-8-202(1)(i.5) and 25-8-205 C.R.S. provide the specific statutory authority for these regulatory amendments. The Commission also adopted, in compliance with 24-4-103(4), C.R.S., the following statement of basis and purpose.
BASIS AND PURPOSE
The Commission has adopted revisions to this regulation to update procedures, correct typographical errors and to include a fee structure that was enacted by House Bill 15-1249.  Since the last update to the regulation in 2003, the Division has issued 401 certifications for three large water supply Projects. The process of issuing these certifications highlighted language in the regulation that was not specific enough and allowed for alternative interpretations of the regulation. The regulation was updated to add clarity and minimize confusion.
Section 82.4 – Application for Water Quality Certification
Section 82.4(A) was modified to add the 401 water quality certification request form and the fee structure table explaining the tiers and the fees associated with processing the 401 certification application. 
The summaries of the Project tiers and associated fees that are used in the table in section 82.4(A)(4) were derived from section 25-8-502(1.2)(a), C.R.S.
Section 82.4(A)(4) also clarifies that fees for tiers 1 and 2 Projects are due at the time of application.  For tier 3 and 4 Projects, a pre-application meeting will be held with the applicant for the development of a billing agreement. During the pre-application meeting, the Division and applicant shall negotiate in good faith regarding the fees to be billed and will identify a process by which fee disputes will be resolved between the parties. The billing agreement will include the Division’s estimated costs within the state fiscal year (July 1-June 30), with a new billing agreement to be prepared each year. The Division can only charge for costs actually incurred, and the Division may prepare a revised billing agreement if the costs are underestimated in the initial agreement.  The Commission expects that the Division and the applicant will be in close and frequent contact before the Division spends its time and/or resources on any evaluation (including participation in any federal processes associated with the Project) to discuss the Division’s tier determinations and expectations for any associated fees.    
   
Language was also added to Section 82.4(C) referencing the fees for all Projects except for USACE 404 Projects.
Section 82.5 – Division Procedures and Determinations
Section 82.5(A) (Division Certification Determination) was modified to include National Environmental Policy Act (NEPA) documents that the Division can review for the 401 certification determination.  In Section 82.5 (A)(1)(a), language was added to reference Regulation 31 in the antidegradation review for the 401 certifications. 
Section 82.5(A)(1)(a) was expanded to clarify the applicability of antidegradation  “significance determinations” conducted under section 31.8(3)(c) in the context of 401 certification review for FERC licenses and USACE 404 permits. This new language provides that in making significance determinations for any reviewable waters impacted by a proposed Project, the Division may balance the predicted water quality impacts of the proposed Project on those reviewable segments against the predicted benefits of any proposed water quality improvements or water quality mitigation measures to other segments within the Project area (regardless of their designation: use protected or reviewable). Where possible, such water quality improvements or mitigation measures shall be located in the same watershed where the reviewable segment(s) are located. In some cases direct mitigation on the same segment is not possible.
There are two objectives that are typically considered in the development of conditions.  The first is to ensure that significant water quality impacts are mitigated wherever possible. While direct mitigation for hydrologic modification  Projects may be challenging, it is important to apply these conditions where they can be effective and where they are consistent with section 25-8-104 of the Water Quality Control Act.
The second objective is to provide reasonable assurance that commitments made for mitigation of impacts and improvements to water quality provide the expected benefits.  Existing mitigation and improvement measures from other permits or agreements, if successful, may contribute to “net environmental benefit” as it relates to the significance determination in the antidegradation review.
Section 82.5(A)(1)(g) was added to indicate that the Division may take local, state or federal permits, or agreements between the applicant and such agencies into consideration when considering whether to issue a 401 certification. The Division will consider the water quality-related implications of such permits and agreements in conducting its underlying analysis. The Division will not use this regulatory language to adopt conditions outside of its jurisdictional authority. The Division will not incorporate any such agreements or permits as conditions in the 401 certification, except the Division may in its discretion include Division-issued permits/authorizations or prior agreements entered into between the Division and the applicant as conditions. The Division may also establish independent conditions that would account for water quality improvements, or mitigation measures contained in any permit or agreement that might cease to exist in the future. 
Section 82.5(A)(2) (Regular Certification) was revised to reiterate the federal requirement in 40 CFR 121.2(a)(3) that the Division must have reasonable assurance the Project will be conducted in a manner that will comply with the 401 certification requirements.
Section 82.5(A)(3) (Conditional Certification) was also modified to add similar language indicating that under 40 CFR §121.2(a)(3) the Division must have a reasonable assurance that the Project will comply with the 401 certification requirements  with additional conditions required by the Division.  
Language was also included in the conditional certification provision to make it clear, for consistency with Regulation No. 31, section 31.8(3)(c), that any water quality improvements or mitigation measures relied upon in making a “no significant degradation” determination will be incorporated as conditions in the 401 certification.   
Language was also added to section 82.5(A)(3) to specifically identify the use of adaptive management as a condition to certification. Based on the Division’s experience and examples from other states, the Commission recognizes the critical importance of incorporating the concept of adaptive management as a condition for large, multi-year water Projects in order to satisfy the federal “reasonable assurance” requirement. This component was added to allow large water Projects to adjust mitigation based on the uncertainty of the water quality impacts that were modeled for the Project.  
The adaptive management condition also allows flexibility due to uncertainty based on the potential for water quality standards changes during the life of the certified Project. The Commission believes this concept is consistent with the federal requirement that “activities will be conducted in a manner which will not violate applicable water quality standards.” 40 CFR 121.2(a)(3). The Commission recognizes that “applicable water quality standards” can and do change over time, and adaptive management is intended to provide the flexibility for multi-year Projects to account for and comply with such changes. The Commission’s legal authority to adopt this provision also stems from the broad authority provided to the  state in Section 401 of the federal Clean Water Act, as well as sections 25-8-202(1)(i.5) and 25-8-205(1)(c), C.R.S. of the Water Quality Control Act. The Division’s authority to implement this condition is found at section 25-8-302(1)(f), C.R.S.
In practice, the Division develops conditions based on the available data, the modeled analysis of such data, and applicable water quality standards at the time of certification. Parameters are identified that are predicted to exceed standards or antidegradation review requirements through the initial impacts analysis. Conditions are then developed for each of these parameters to address future impairments from the Project. Adaptive management conditions are not written to the specific numeric value (i.e., 4.6 μg/l), but instead simply reference the applicable standard. If the standard changes, the numeric value used as the basis for the condition will change as well. For example, if after the time of the certification, the Commission adopts a site-specific temperature standard that is less stringent than the standard used for the initial impacts analysis, the less stringent standard will be used to assess that condition. Alternatively, if a more stringent selenium standard were to be adopted by the Commission in the future, this standard would be used to assess selenium conditions. 
The Division does not develop conditions for pollutants for which there was not a predicted impact or concern at the time of certification. There may be a case, however, where there was a predicted impact for one metal and additional metals were added to the adaptive management condition to ensure continued attainment of the other metals standards. Similarly, the Division does not develop conditions for other pollutants for which no standards exist at the time of certification. The Commission understands that the Division does not intend to predict standards for new pollutants that may be adopted by the Commission in the future. And along these lines, the Division would not require monitoring for every potential emerging contaminant.
 If monitoring in an adaptive management condition indicates an exceedance of water quality standards, the Project proponent will be required to conduct an investigation to determine if the Project is contributing to the impairment. If the Project is determined to be the cause of the impairment, then the Project proponent is required to develop a Category 4b Plan. A Category 4b plan is a regulatory alternative to a TMDL that address water quality impairments. The plan identifies mechanisms that are expected to result in attainment of water quality standards in a reasonable period of time.  
In implementing adaptive management plans, the Commission encourages Project proponents to collaborate with affected local entities and other government agencies.  The Commission recognizes that local participation in adaptive management is very important.  Therefore, adaptive management generally should be designed to include the participation of the local government and other stakeholders in the area affected by the operation of the Project wherever possible. 
Section 82.6 – Certification Requirements
Language was added to Section 82.6 (A)(9) that will require the applicant to notify the Division before work occurs below the existing water surface. The intent of this addition is to allow the Division to be aware of construction activities that occur below the water surface in the event the Division is contacted by concerned entities.
Appendix I
The information that was contained in Appendix I, regarding Best Management Practices for the Clean Water Act Section 401 Certifications, was updated and it was determined that this information should be removed from an appendix to the regulation and instead should be contained in a Division policy so that it can be updated more frequently.  

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