NOTICE OF PUBLIC RULEMAKING HEARING
	BEFORE THE
	COLORADO WATER QUALITY CONTROL COMMISSION

SUBJECT:

For consideration of the adoption of revisions to the Procedural Rules, Regulation #21 (5 CCR 1002-21).  Revisions to Regulation #21 proposed by the Attorney General’s Office as staff to the Commission, along with a proposed Statement of Basis, Specific Statutory Authority, and Purpose, are attached to this Notice as Exhibit 1.  Revisions to Regulation #21 proposed jointly by the Northern Colorado Water Conservancy District, Trout Unlimited and the City of Boulder, along with a proposed Statement of Basis, Specific Statutory Authority, and Purpose, are attached to this Notice as Exhibit 2.  Any alternative proposals related to the revisions proposed in Exhibits 1 and 2, and developed in response to those proposed revisions, will also be considered.

HEARING SCHEDULE:

DATE:		Monday, May 14, 2007
TIME:		2:00 p.m.
PLACE:	Florence Sabin Conference Room
Department of Public Health and Environment
4300 Cherry Creek Drive South
Denver, Colorado

PUBLIC PARTICIPATION ENCOURAGED:

The Commission encourages all interested persons to provide their opinions or recommendations regarding the matters to be addressed in this rulemaking hearing, either orally at the hearing or in writing prior to or at the hearing.  Although oral testimony from those with party status (see below) and other interested persons will be received at the hearing, the time available for such oral testimony may be limited.  Written submissions prior to the hearing are encouraged, so that they can be distributed to the Commission for review prior to the hearing.  Oral testimony at the hearing should primarily summarize written material previously submitted.  The hearing will emphasize Commission questioning of parties and other interested persons about their written prehearing 
submittals.  Introduction of written material at the hearing by those with party status or mailing list status (see below) generally will not be permitted.

PARTY STATUS/MAILING LIST STATUS:

Participation as a "party" to this hearing or acquisition of "mailing list status," will require compliance with section 21.4(D) of the Procedural Rules, Regulation #21 (5 CCR 1002-21).  Mailing list status will allow receipt of all party documents (except individual exhibits more than five pages in length).  

It is not necessary to acquire party status or mailing list status in order to testify or comment.  For each request for party status or mailing list status, please provide the organization’s name, a contact person, mailing address, phone number, fax number and email address if available.    Written party status or mailing list status requests are due in the Commission Office on or before:

	DATE:		Tuesday, March 6, 2007
TIME:		5:00 p.m.

Party status or mailing list status requests may be submitted by a fax to 303-691-7702 by this deadline, or by email to diana.glaser@state.co.us, provided that the original and three copies are mailed by this same date.  

PREHEARING STATEMENTS:

PLEASE NOTE that for this hearing two separate deadlines for prehearing statements are established:  (1) An original and 13 copies of an initial prehearing statement from the Attorney General’s Office and from the Northern Colorado Water Conservancy District, Trout Unlimited and the City of Boulder, as proponents of the revisions proposed in Exhibits 1 and 2, respectively, attached to this notice, including written testimony and exhibits providing the basis for the proposals, must be received in the Commission Office no later than March 12, 2007; and (2) An original and 13 copies of a prehearing statement, including any exhibits, written testimony, and alternative proposals of anyone seeking party status and intending to respond to either of these proposals must be received in the Commission Office no later than April 10, 2007.  Those requesting mailing list status shall provide written testimony, if any testimony is to be offered for the hearing, by this same date.  

For each deadline, the required number of hard copies of documents must be received in the Commission office by the specified deadline.  These requirements are not satisfied by electronic transmission of a facsimile copy or copies.  However, parties are also strongly encouraged to email a copy of their written documents to the Commission Office, so that materials received can be posted on the Commission’s web site.  (Please email to diana.glaser@state.co.us.)   In addition, copies of these documents must be mailed or hand-delivered by the specified dates to all persons requesting party status or mailing list status, and to the Attorney General's Office representatives for the Commission and Department, in accordance with a list provided by the Commission Office following the party status/mailing list status deadline.

Also note that the Commission has revised a document entitled Information for Parties to Water Quality Control Commission Rulemaking Hearings.  A copy of this document will be mailed to all persons requesting party status or mailing list status.  It is also posted on the Commission’s web site noted above, under “General Information – Public Participation in Commission Proceedings”.  Following the suggestions set forth in this document will enhance the effectiveness of parties’ input for this proceeding.  Please note the new request that all parties submit their hard copies of all hearing documents on three-hole punch paper.

PREHEARING CONFERENCE:

DATE:		Tuesday, April 17, 2007
TIME:		9:00 a.m.
PLACE:	Board Room
Department of Public Health and Environment
4300 Cherry Creek Drive South
Denver, Colorado

Attendance at the prehearing conference is mandatory for all persons requesting party status.  

REBUTTAL STATEMENTS:

Written rebuttal statements responding to the prehearing statements due on April 10, 2007 may be submitted.  Any such rebuttal statements must be received in the Commission Office by May 2, 2007.  An original and 13 copies of written rebuttal statements must be received in the Commission Office by this deadline.  Please also email a copy to diana.glaser@state.co.us.  This requirement is not satisfied by electronic transmission of a facsimile copy or copies.  In addition, copies of these documents must be mailed or hand-delivered by that date to all those requesting party status or mailing list status, and to the Attorney General's Office representatives for the Commission and Department.  No other documentation, exhibits, or other materials will be accepted following this deadline except for good cause shown.

SPECIFIC STATUTORY AUTHORITY:

The provisions of sections 25-8-202(1) and 25-8-401 C.R.S. provide the specific statutory authority for consideration of the regulatory amendments proposed by this notice.  Should the Commission adopt the regulatory language as proposed in this notice or alternative amendments, it will also adopt, in compliance with section 24-4-103(4) C.R.S., an appropriate Statement of Basis, Specific Statutory Authority, and Purpose.

NOTIFICATION OF POTENTIAL MATERIAL INJURY TO WATER RIGHTS:

In accordance with section 25-8-104(2)(d), C.R.S., any person who believes that the actions proposed in this notice have the potential to cause material injury to his or her water rights is requested to so indicate in the party status request submitted.  In order for this potential to be considered fully by the Commission and the other agencies listed in the statute, persons must fully explain the basis for their claim in their prehearing statement which is due in the Commission Office on the date specified above.  This explanation should identify and describe the water right(s), and explain how and to what degree the material injury will be incurred.

Dated this  10th   day of January 2007 at Denver, Colorado.

WATER QUALITY CONTROL COMMISSION
						
Paul D. Frohardt, Administrator

Exhibit 1
Attorney General’s Office, as staff to the Colorado Water Quality Control Commission
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 dealing with surface water discharge permits or portions thereof;  
e)	Appeals of final determinations by the Division on notices of alleged violations which do not deal with surface water discharge permits or portions thereof, pursuant to section 21.11(D) of these rules, including appeals of notices of alleged violations for discharging without a permit, and appeals of penalties associated therewith.
g)	Appeals of final decisions by the Cherry Creek Basin Water Quality Authority pursuant to section 72.5(4)Regulation #72, 5 CCR 1002-72 and, where specifically provided for in other State reservoir control regulations, appeals of final determinations by the Division regarding modifications to point source phosphorus allocations or concentrations (through trades, transfers, or withdrawals from reserve/emergency pools).
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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 by the Executive Director or his/her designee, pursuant to section 25-8-608, C.R.S. for violations of any surface water discharge permit issued under this article.
d)	Notices of alleged violations, pursuant to sections 25-8-602 and 603, C.R.S., for violation of an order, permit, or control regulation.
21.11	Hearings on Notice of Alleged Violations
…….
D.	Final determinations by the Division concerning notices of alleged violations which do not deal with surface water discharge permits or portions thereof must be appealed to the Commission by any person adversely aggrieved or affected as a prerequisite to the right of judicial review pursuant to the APA.  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 105 of the APA and section 21.4 of this regulation; provided, that if the Division has previously held a hearing regarding the alleged violations under section 105 of the APA, the Commission’s review will be limited to record review of the Division’s final determination.
21.12	Civil Penalty Appeals
A.	The Division may assess civil penalties as provided in section 608 of the Act.
B.	Upon application of the Division, penalties shall be determined by the Executive Director or his/her designee without a hearing, and any such decision.  Such penalty determinations may be appealed to the Commission, except for penalties for violating a surface water discharge permit or portions thereof, which may be appealed to the Division in accordance with section 21.4(3)(b).  The appeal 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 decision of the Executive Director or his/her designee. In his/her written appeal the appellant shall also admit or deny each allegation set forth in the Division’s application for civil penalty filed with the Executive Director or his/her designee, and shall state those mitigating factors which the appellant desires to raise before the Commission.
C.	The Commission shall conduct such hearings in accordance with section 105 of the APA and section 21.4 of this regulation.  In any such hearing the Commission shall not hear evidence for the purpose of determining if the underlying violations have occurred, but may only consider evidence relevant to the appropriateness of the amount of the penalty.

Proposed
21.35. Statement of Basis, Specific Statutory Authority and Purpose (May 2007 Rulemaking)
The provisions of sections 25-8-202 and 401 provide the specific statutory authority for adoption of these regulatory amendments.  The Commission also adopted the following statement of basis and purpose.
Basis and Purpose
In past years changes have been made to state statutes and regulations regarding appeals of certain Division determinations.  The Commission has amended the procedural rules to clarify which appeals should go to the Commission, and which should go the Division.  
Colorado’s Water Quality Control Act (the Act) provides that the Commission shall hear appeals of “all determinations by the Division except those determinations dealing with surface water discharge permits or portions thereof.” § 25-8-202(1)(k), C.R.S.  Section 603 of the Act provides that the Division shall provide an opportunity for an adjudicatory hearing regarding appeals of notices of alleged violation for violations of orders, permits or control regulations.  Section 608 of the Act provides that the Division’s final decision regarding penalties may be appealed to the Commission.  
The Commission has amended sections 21.4, 21.11 and 21.12 in order to clarify that the Commission does not hear appeals of Division determinations that deal with surface water permits or portions thereof.  
The Commission has also amended section 21.4(A)(2)(e) to clarify that appeals relating to discharging without a permit are to be heard by the Commission.  Such violations and penalties are not determinations “dealing with surface water discharge permits or portions thereof,” and thus should properly be heard by the Commission.

The Chatfield Reservoir Control Regulation, Regulation #73, was previously amended to include procedures for appealing final Division determinations on trades and other changes in point source phosphorus allocations to the Commission.  For consistency, the Commission adopted new language in section 21.4(A)(2)(g) to address such appeals.  The language is broad enough to include other reservoir control regulations which may later be amended to specifically provide for such appeals.
The Commission has also amended section 21.11(D) regarding Commission hearings on final Division determinations regarding notices of alleged violations.  The Commission has clarified that such hearings are appellate hearings limited to record review.  A party is not entitled to two full agency adjudicatory hearings under section 105 of the Administrative Procedures Act (one before the Division, and one before the Commission), prior to seeking judicial review.

EXHIBIT 2
Northern Colorado Water Conservancy District,
Trout Unlimited, and the City of Boulder
21.3	Rulemaking Procedures
K	Conduct of Hearings
1)	The Commission shall conduct a public rulemaking proceeding before promulgating any rule or regulation, in which it shall afford its staff and interested persons an opportunity to submit written data, views, or arguments, or written rebuttals.  Oral testimony at hearings may be limited.  Direct testimony should primarily summarize written evidence.  Introduction of written material at the hearing will generally not be permitted except by the non-party general public.
If any participant in the rulemaking objects to the consideration of an alternative submitted after the responsive prehearing statement deadline, the Commission shall decide whether the alternative is similar enough to other options already proposed such that the parties have had an adequate opportunity to provide input regarding the proposal and alternatives under consideration.  If the Commission decides that this opportunity has not occurred, it shall either exclude the new alternative(s) from consideration or provide an additional opportunity to respond to such alternative(s).

PROPOSED
21.34	STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE (MAY 2007 RULEMAKING)
The provisions of section 25-8-202(1) and 25-8-401(2), C.R.S. provide the specific statutory authority for adoption of these regulatory amendments.  The Commission also adopted the following statement of basis and purpose.
Basis and Purpose
The Commission recognizes that there are occasionally last-minute alternatives presented by parties at a stage in the rulemaking process where other parties could be prejudiced because they cannot respond effectively within the deadlines of the existing procedural rules and the prehearing orders adopted pursuant thereto.  However, the Commission also recognizes that it would be counter-productive to prohibit the submission of new or modified proposals because this would inhibit the settlement of contested issues.  With the adoption of this procedural change, the Commission has decided to evaluate proposals submitted after the responsive prehearing statement deadline that are not the result of settlement discussions and supported by all affected parties.  The Commission will consider party objections to such proposals and evaluate whether or not there has been an adequate opportunity to provide input.  If the Commission decides that such opportunity has not been available to the parties, it will either exclude the proposal from consideration, or provide an additional opportunity for the parties to provide input.  The Commission concluded that this change addresses a simple question of fairness that ensures the integrity of its decisions.