Code of Colorado Regulations
1000 - Department of Public Health and Environment
1002 - Water Quality Control Commission (1002 Series)
5 CCR 1002-43 - REGULATION NO. 43 - ON-SITE WASTEWATER TREATMENT SYSTEM REGULATION
Section 5 CCR 1002-43.22 - Statement of Basis and Purpose - September 20, 2000

The Individual Sewage Disposal System Guidelines mandated by Article 10 of Title 25, Section 25-10-104(1) C.R.S., were first adopted in October of 1973 as temporary emergency guidelines. The State Board of Health then adopted those Guidelines, with minor revisions, in 1974.

As more experience was gained in the field, many questions were directed to the Water Quality Control Division for resolution. Based on the subsequent discussions held with local health agencies, the General Services Section of this Division conducted a limited investigation into the various causes of the ISDS failures throughout the State during the summer of 1977.

The Office of the Attorney General advised the Division of the need to review the 1974 Guidelines. The Division's experience had shown that some local jurisdictions had not adopted their own ISDS regulations as required by Section 25-10-104(2). This made monitoring and enforcement difficult for this Division. Therefore, the Guidelines, which were adopted in May of 1979, contained a provision that the Guidelines became the local ISDS regulations for any jurisdiction, which failed to adopt its own regulations within one year.

The advent of alternatives in on-site treatment and disposal technology and the 1983 passage of HB 1400, which redefined an individual sewage disposal system, necessitated the revision of the 1979 Guidelines. The Department notified all local boards of health of the opportunity to participate in this revision and accepted all that attended the first two meetings as committee members.

The Colorado Court of Appeals ruled on June 9, 1988 that Language in Section IX of the 1984 Guidelines, providing that systems must "consistently meet" certain standards, is unconstitutionally vague. The 1988 Guidelines identified effluent sampling frequencies and defined the allowable amount and frequency of exceedances of those standards in response to the Court of Appeals ruling.

Further advances in on-site treatment and disposal technologies, as well as a need for general housekeeping review of the regulations, necessitated a revision of the 1988 Guidelines in 1994. This process was initiated by members of the Western Colorado Association of Environmental Health Officers who authored the initial draft of the revised Guidelines. Input was then solicited from all local health agencies. The resulting revisions were then referred back to all local health agencies and to those individuals who had expressed interest in the process.

The main objectives in the 1994 Guidelines were to incorporate new treatment and disposal alternatives, to generally improve the readability of the document, and to correct a long-standing error in the formula for sizing of evapotranspiration systems.

In 1997 the Colorado General Assembly made significant revisions to the Individual Sewage Disposal Systems Act. Among the revisions to the ISDS Act was a provision allowing the local board of health "to grant variances to ISDS rules in accordance with the guidelines for rules adopted and revised by the state board" (Section 25-10-105(2) (a)). On January 19, 2000 the State Board of Health adopted Section XVIII Variance Procedure. This addition to the Guidelines established the framework for that local variance process. All other elements of the Guidelines remained as adopted in 1994.

A review of the newly adopted Section XVIII by the staff of the Office of Legislative Legal Services commenced a discussion of the respective roles of local boards of health and staff regarding the hearing and issuance of variances. The concern centered on the compatibility of the delegation of authority by the board of health to the health officer, environmental health specialist, or similarly qualified individual with the legislative provision granting the authority to grant variances to the local board of health. Ultimately, it was the opinion of the staff of the Office of Legislative Legal Services that the provisions of paragraph B.2.b., providing that "the board may delegate the authority to approve or deny variance requests to the health officer, environmental health specialist, or similarly qualified individual, as designated" to impose requirements and conditions on an approved variance, conflict with the ISDS Act. The ISDS Act, in Paragraph (2) (a) of 25-10-105 provides that "a local board of health shall have authority to grant variances to ISDS rules".

The purpose for adoption of these Guidelines is to bring the variance procedure into compliance with the provisions for such a process as defined in the enabling statute.

In these revised 2000 Guidelines, changes are made to delete provisions related to the delegation of authority from the Local Board of Health to the health officer, environmental health specialist, or other similarly qualified individual with respect to the variance process. The remaining changes proposed are for the purpose of readopting changes made at the previous rulemaking hearing so that the rule as published in CRS is consistent with that adopted by the Board. Language related to liability on the part of local boards of health, which grant variances, is also deleted. The description of the ISDS permit fee is expanded to cover permits with variances. Examples are provided describing conditions, which might exist, or actions, which might be taken to justify the granting of a variance. The prohibition on the granting of variances to mitigate construction errors is expanded to cover issues other than the ISDS itself.

All other element of the Guidelines remain as adopted in 1994 and all other provisions of Section XVIII establishing minimum procedural requirements regarding the application for, review of, and decision making regarding variances from elements of the ISDS Guidelines remain as adopted in January of 2000.

This statement of basis and purpose applies only to the current Guidelines and not to any previous version.

The above statements are intended to comply with section 24-10-103 C.R.S.