At a June 20 meeting of the Archuleta County Board of Health (BoH), the board heard a presentation from Water Quality Manager Kevin Torrez concerning issues with the on-site wastewater treatment system (OWTS) regulations previously used by San Juan Basin Public Health (SJBPH) and discussed potential paths forward.
Torrez stated that Colorado Regulation 43, which governs the standards for OWTS design, allows for a 30 percent reduction in the size of the soil treatment area (STA) or leach field for an OWTS if the system utilizes “proprietary distribution products” and if 90 percent of the STA is covered by those products.
However, he explained that SJBPH — from 2018 to the end of 2023 when the organization dissolved into county health departments — allowed for the reduction in STA but did not require the STA to be covered in proprietary distribution products.
“There’s a risk to this,” Torrez said, stating that the reduced size of the STA could shorten its lifespan or cause a failure of the OWTS.
He explained that Regulation 43 allows 6 inches or less between the proprietary chambers that hold effluent, while SJBPH allowed a greater amount of space.
In an interview, he stated that the department found the issue after speaking to engineers who were submitting systems that did not comply with state regulations and discovering that SJBPH had previously allowed and approved similar designs.
Torrez stated that, upon discovering this issue, the Water Quality Department notified the Colorado Department of Public Health and Environment (CDPHE) about the issue.
He indicated that CDPHE staff agreed with county staff that the county needs to take action and prevent systems that do not meet the state regulations from being built in the future.
After June 1, Torrez stated, all the designs that the Water Quality Department has approved have been checked for compliance with Regulation 43.
He added that staff also sampled the designs approved by SJBPH since 2018 to determine how many designs were out of compliance with state regulations.
From the “small sample” the department took, Torrez indicated staff found that some engineers had consistently designed systems that did not meet Regulation 43, in line with the SJBPH practice, while others continued to follow the state regulations.
He stated that, given what the sample revealed, the department decided to investigate all systems approved since 2018 to determine which systems may have been improperly engineered.
Torrez outlined that the county has several options to address the issue:
• Doing nothing and hoping no incidents occur due to improper engineering.
• Issuing notices of violation (NOVs) and requiring that systems that do not comply with regulations be brought into compliance by the owner. He commented might involving expanding or building new STAs.
• Issuing NOVs and requiring that all noncompliant systems be inspected, with repairs only required for failing systems.
He indicated that the option recommended by staff is to flag all noncompliant systems, send notifications to all properties informing them that their systems are under-engineered, create cloud notifications on the titles for the properties to allow the department to track these systems and require STA inspections on any noncompliant systems whenever the system is reviewed by the Water Quality Department, with repairs to the STA being required for failing systems.
BoH member and Commissioner Veronica Medina asked how many systems were under-engineered in the audit of previously approved systems that the department performed.
Torrez stated that the department has not conducted a full audit, but has determined that some engineers have been incorrectly engineering systems from 2018 to the present, while others have not.
In response to a question from Medina, Torrez stated that there have been between 1,200 and 1,500 OWTSs approved since 2018.
Responding to a question from BoH member Stacey Foss, Torrez stated that there are six or seven engineers for OWTSs in the county and that two have been consistently engineering their systems incorrectly since 2018.
Development Director Pamela Flowers added that the department still wants to check all systems, even from engineers who generally followed the state regulations, to ensure that all systems are properly designed.
Medina asked if the department has contacted the engineers who were improperly designing their systems and asked them to change their designs.
Torrez replied that the department has done so and told the engineers they should comply with Regulation 43.
Flowers added that the primary issue now is how to address the noncompliant systems that have already been built.
BoH member and Commissioner Warren Brown asked County Attorney Todd Weaver who would be liable for the installation of the noncompliant systems, noting that it could be a significant cost and that many owners might not have the means to make the necessary repairs.
Weaver commented that the situation is “unfortunate” and that SJBPH’s actions were likely “illegal” since they are not allowed to be less stringent than the state regulations.
He recommended that the county reach out to La Plata County and determine what approach it has taken on this issue.
Torrez stated that the CDPHE has already reached out to La Plata County and informed them of the issue.
Weaver stated that there would likely be no legal liability for Archuleta County concerning the noncompliant systems.
“I was thinking more on behalf of the citizens instead of on the county,” Brown replied.
Weaver commented that the citizens would likely not face any liability since they acquired what they believed was the proper permit for their systems.
Flowers added that the liability would likely fall on the engineers since they did not follow the state regulations, which Weaver expressed agreement with.
Torrez reiterated that staff recommend the final option he presented.
He added that the STA inspections would occur on transfer of title, when the property is undergoing permitting to become a short-term rental (STR), when a repair to the OWTS occurs or when a change is made to the OWTS permit.
Flowers emphasized that, if no issues with the STA are found, that the department will “move on.”
Torrez commented that the STA inspection is “pretty simple” and is required to ensure there is no clogging or other issues with the STA.
Flowers and Weaver explained that, if the BoH agrees to move forward with the recommended approach, the BoH would need to direct staff to draft a policy on how to address noncompliant systems, which would be considered for approval at the next BoH meeting in July.
Brown raised the issue of if the county would stop operations of STRs if an STR has a failing, noncompliant OWTS.
Flowers stated that issues with an OWTS would not be a reason to stop STR operations and that the county would request to inspect an OWTS and for the owner to work on repairs, but would not interrupt STR activity in the interim.
Torrez commented that the repair would likely involve adding another STA to split up the volume of effluent, which he noted would be “a little expensive” but not a “huge” expense like having to fully rebuild the OWTS.
josh@pagosasun.com
