Section 208 of the Clean Water Act (CWA) creates a network of state, regional, and local management agencies to protect the waters of the United States.  It requires governors to identify each area of a state, which, “as a result of urban-industrial concentrations or other factors, has substantial water quality control problems.” (33 U.S.C. § 1288(a)). Governors must then designate planning agencies (“208 Planning Agencies”) on an areawide basis to address those problems through areawide water quality management plans, which NFRWQPA refers to as the Association’s 208 Areawide Water Quality Management Plan (208 AWQMP) (33 U.S.C. § 1288(a)-(b)). The Code of Federal Regulations (C.F.R.) Title 40 part 130.2(l) defines an “areawide agency” as an “agency designated under section 208 of the Act, which has responsibilities for water quality management planning within a specified area of a State. 40 C.F.R. part 130.2(k) further defines management planning as a State or areawide water quality management plan developed and updated following the provisions of sections 205(j), 208, and 303 of the CWA as well as the requirements in 40 C.F.R. part 130.2. 

The 208 AWQMP identifies treatment works, including construction priorities and completion schedules, necessary to meet waste treatment needs over a twenty-year period utilizing approved Utility Plans.  The 208 AWQMP establishes a regulatory program that provides land-use management planning for the location, modification, and construction of any facilities within the Weld-Larimer county region, which may result in any discharge in the region (33 U.S.C. § 1288(b)(2)(a)).  Additionally, the 208 AWQMP includes designated regional management and operating agencies to implement the 208 AWQMP (33 U.S.C. § 1288(c)). Each management or operating agency must have the authority and be financially capable of operating and maintaining new and existing works as well as fulfill their respective responsibilities as required by the 208 AWQMP (33 U.S.C. § 1288(c)(2)(C)).  The 208 AWQMP must also identify nonpoint sources of pollution, including agriculture, silviculture, mining, construction activity, and offer recommendations for best management practices to protect ground and surface water quality.  Finally, governors or their designees must annually certify to the EPA that NFRWQPA’s 208 AWQMP is consistent with any applicable basin plan (33 U.S.C. § 1288(b)(3)).

Separately but relatedly, Section 303 of the CWA requires each state to develop a continuing planning process; this process for Colorado is Regulation No. 23: A Guide to Colorado Programs for Water Quality Management and Safe Drinking Water: A Continuing Planning Process (33 U.S.C. § 1313(e)(1)-(2)). Regulation No. 23 must incorporate all elements of any regional 208 Plan, effluent limits and compliance schedules, and Total Maximum Daily Loads (“TMDLs”), nonpoint source prevention recommendations, among other requirements (33 U.S.C. § 1313(e)(3); see also 40 C.F.R. § 130.5).

Colorado enacted the Water Quality Control Act (WQCA) to administer the requirements of the CWA, including Sections 208 and 303 (C.R.S. § 25-8-101). In turn, 208 Plans are governed by Section 105 of the WQCA and referenced in other sections (C.R.S. §§ 25-8-105, 503, and 702).  Section 105 states that regional areawide water quality management plans (i.e., NFRWQPA’s 208 AWQMP) may be developed by designated planning agencies or by the Water Quality Control Division (WQCD) (C.R.S. § 25-8-105(1)(a)). The Governor has designated NFRWQPA as a 208 Planning Agency as well as the Northwest Colorado Council of Governments, Pikes Peak Area Council of Governments, and Pueblo Area Council of Governments.   

In turn, NFRWQPA depends on management and operating agencies which have the accountability to implement specific requirements and responsibilities of the 208 AWQMP and primarily assure that their assigned point and nonpoint source control programs are accomplished within prescribed time frames (“Policy #98-2”).  In Colorado, general-purpose local governments and special districts have been designated as management agencies for point sources and land-use management. Operating agencies are responsible for specific activities for pollution control under the general direction of a management agency. They may include water districts, sanitation districts, industries, and municipalities that maintain point source discharge permits and primarily treat or process wastewater. NFRWQPA identifies management/operating agencies with the 208 AWQMP for approval by the water quality control commission.  

There are many mechanisms of authority provided by the approval process of Utility Plans, Regulation No. 22: Site Location and Design Approval Regulations for Domestic Wastewater Treatment Works (Site Applications), the Association’s 208 AWQMP, as well as the Colorado Discharge Permit System issuance process.

NFRWQPA denies Utility Plans that are inconsistent with the 208 AWQMP. Utility Plans replace the previous requirement under the Clean Water Act Section 201, known as 201 facility plans. Utility Plans are used by NFRWQPA to aid agencies in obtaining financing as well as support the regional 208 AWQMP by providing information concerning the authority and responsibilities of management and operation agencies. The 208 AWQMP consists of information produced from approved Utility Plans per sections 201, 202, 203, 208, and 303(e) of the Act to contribute to the states continuing planning process (Regulation No. 23) regarding water quality. Denying an agency’s Utility Plan, which disagrees with Association’s 208 AWQMP, breaches the process to obtain federal funding under the WQCA as well as SRF funds with the state as well as the Site Application process.

Site Applications for domestic wastewater treatment works and related appurtenances via Regulation No. 22 are circulated to appropriate agencies for review and comment on proposed new treatment plants or expansions, lift stations, or interceptor sewer lines (C.R.S. § 25-8-702; 5 C.C.R. § 1002-22).  NFRWQPA must evaluate the applications for consistency with relevant elements of the Association’s 208 AWQMP, like service areas, and the applicant’s approved Utility Plan (Policy #98-2).  If the proposal is not consistent with the 208 AWQMP or stated in the plan or the Utility Plan, the applicant must amend the applicable planning document to allow for the contemplated wastewater facilities (5 C.C.R. § 1002-22.4(2)(e) and 22.6(2); see also Policy #98-2). In the case of lift stations and interceptor sewer permit applications, the recommendation of NFRWQPA will be adopted as the Division’s recommendation unless the Division is aware of potential adverse impacts on public health and, or water quality, which is not addressed in the application (Policy #98-2).

NFRWQPA and or membership can deny 208 AWQMP amendments. NFRWQPA’s 208 AWQMP requires service areas to be consistent with the 208 AWQMP.  The document states that “any significant modification of the service area boundaries of an existing Operations Agency or any formation of a new Operations Agency requires an amendment of the Regional Plan.” Any proposed service area boundary modification, facility capacity increase or decrease, or unplanned Site Application project requires a 208 AWQMP amendment. Any amendment requires a public notice period and NFRWQPA to hold a public hearing on the proposed amendment (C.R.S. § 25-8-105(1)(b); Policy #98-2). NFRWQPA membership could deny the amendment for various reasons, but the denial must have a rational basis. The basis for denial could include respective treatment capacities, planned treatment capacities, discharge permit compliance histories, the potential impact on receiving waters, local information, and potentially the precedential impact in determining future service area modifications for the planning region.

Under federal law, all point source dischargers must remain in compliance with 208 Plans, which also includes any said requirements within NFRWQPA’s 208 AWQMP related to the authority and responsibilities of management and operating agencies identified within. The CWA assures that no permit (CDPS) under section 1342 of this title shall be issued for any point source in conflict with NFRWQPA’s 208 AWQMP (33 U.S.C. § 1288(e)).  Likewise, per section 208(e) of the Act, no NPDES (i.e., CDPS) permit may be issued, which conflicts with NFRWQPA’s 208 AWQMP, which involves the permittee having a current and approved Utility Plan. Supportive, Commission Policy #98-2, states a 208 planning agencies role is to “review discharge permits to assure that discharges to a stream segment are consistent with approved plans, as required by Section 208(e) of the federal Clean Water Act”. It is at this time NFRWQPA could seek division denial of a permit.