No. 79-16


Ms. Paula Herzmark, Executive Director

Attorney General of Colorado — Opinion
April 26, 1979

RE: Status of Counties as Designated Management Agencies under Section 208(c) of the Clean Water Act

J.D. MacFARLANE, Attorney General

Ms. Paula Herzmark, Executive Director Colorado Department of Local Affairs 518 Centennial Building 1313 Sherman Street Denver, Colorado 80201

Dear Ms. Herzmark:

QUESTION PRESENTED AND CONCLUSION

You have requested an opinion whether counties may serve as “designated management agencies” pursuant to section 208(c) of the Clean Water Act (P.L. 92-500), as amended in 1977.

My conclusion is “yes.”

ANALYSIS

Section 208(c)(1) requires that a designated management agency be “an existing or newly created local, regional or state agency or political subdivision.” One or more designated management agencies may be designated for implementing a given wastewater management plan under section 208(c)(1).

Section 208(c)(2)(A)-(I) sets forth the authority which a designated management agency must have to receive acceptance by the Administrator of the Environmental Protection Agency. The policy of EPA regarding these nine criteria of authority was detailed on pages 44, 776-7 of the Federal Register on September 6, 1977. EPA stated that designated water quality management agencies must have “the authority and capability to carry out applicable portions of the water quality management plans.”

In this program guidance memorandum, EPA indicates that a designated management agency need not meet each and every one of the nine criteria listed in 208(c)(2). Rather, EPA required only that each designated management agency “have adequate authority and capability to carry out its assigned portions of an approved water quality management program, (40 CFR section 131.11(o)(2)).”

EPA further states:

An individual management agency is not required to have all of the authorities listed in the FWPC Act and regulations, as long as it has authority to carry out its responsibilities under the plan and the plans’ proposed management agencies in the aggregate have all of those authorities.

Therefore, the general question is whether counties have the specified authority in any of the nine categories in 208(c)(2).

It appears, for example, that under C.R.S. 1973, 30-20-401,et seq. counties have at least the following authority listed in 208(c)(2) in whole or in part.

(A) to carry out appropriate portions of an areawide waste treatment management plan developed under subsection (b) of this section;
(B) to manage effectively waste treatment works and related facilities serving such area in conformance with any plan required by subsection (b) of this section;
(C) directly or by contract, to design and construct new works, and to operate and maintain new and existing works as required by any plan developed pursuant to subsection (b) of this section;
(D) to accept and utilize grants, or other funds from any source, for waste treatment management purposes;
(E) to raise revenues, including the assessment of waste treatment charges;

(F) to incur short- and long-term indebtedness;

(G) to assure in implementation of an areawide waste treatment management plan that each participating community pays its proportionate share of treatment costs;

In terms of specific water quality management plans, each such plan will have to be analyzed independently to determine whether a given county will be able to carry out “its assigned portions of a water quality management program.” Each such plan will also have to be analyzed to assure that in the aggregate, a county and any other designated management agencies, have all of the authority listed in 208(c)(2). EPA has the ultimate responsibility for approving designating management agencies.

SUMMARY

Based upon the foregoing analysis, it is my opinion that counties in Colorado are eligible, in a general sense, to serve as designated management agencies under 208(c).

Very truly yours,

J.D. MacFARLANE Attorney General

WATER POLLUTION COUNTIES PUBLIC AGENCIES HEALTH STATUTES

C.R.S. 1973, 30-20-401 et seq.

LOCAL AFFAIRS, DEPT. OF Local Government, Div. of

Counties in Colorado are eligible to serve as “designated management agencies” under section 208(c) of the Clean Water Act (P.L. 92-500), as amended in 1977.