Cease and desist living?, property owners warning Options

[Denise]

Just when I think things can't get any worse, the county comes and messes with us. They are telling us that we need to cease and desist living on our property (after being here over 7 years) because we are using an outhouse. If we had the money to buy a well then put a septic tank in we would!! As of the 31st, they are charging us $50.00 a day if we remain on our property. No where to go so they have a fight on their hands. I don't take kindly to being told that I am health hazard and a nuisance to the community. Court date is set for July 11th.

Pretty sad world we live in when the officials try to make property owners homeless!!

[Gene Kooper]

Dan,

If you believe that I am an advocate for the county regarding your issue, you have misread my previous post. I don't have a dog in this fight. I posted the legislation that was passed back in the early 1970s to provide some context for the current laws, rules and regulations. These laws were not passed since you moved to your current home. They have been around for over 44 years. I also wanted to show that in that time frame (the early 1970s) the State of Colorado determined that local government control with state minimum standards was preferable to uniform, state-wide control for land use and environmental issues. For example, Baca County is free to come up with their own rules and regulations and not be forced to accept what Boulder County regards as appropriate. To give you a flavor for what a county regards as appropriate regulation here is an example from El Paso County. I'm not saying that you, johnnybravo300 or anyone else living in El Paso County has to like it or blindly accept whatever the county decides, but that is what the folks of El Paso County are expected to comply with. I don't know what county you are in, nor am I advocating that you sheepishly comply with what you regard as your county's arbitrary and capricious rules.

Regulations of the El Paso County Board of Health - Chapter 8 - Onsite Wastewater Systems Regulations

I recently consolidated several mining claims into a single land parcel and subdivided it into two tracts both of which are more than 35 acres to avoid the county from having any say in how my client subdivided his land. While my client appreciated the results of my work, it took a lot of time and money to survey the claims, file monument records, set monuments along the division line, prepare property descriptions for the two parcels, and deposit a land survey plat with the county. Was it fair that my client had to go through the extra expense? No, but he did it because it was far less onerous than being subjected to the county's whims.

Back in the mid 1980s when I did consulting as a geologist, the state statutes required a minimum distance of 100 feet between a water well and a septic leach field. The statutes allowed counties to have a more stringent requirement. Several counties (including Jefferson and Park counties) set the minimum distance at 200 feet. The land owner could obtain a variance between 100 and 200 feet if a technical investigation by a professional engineer or professional geologist concluded that there was no hydraulic connection between the well and septic system.

An aside for johnnybravo300: Under the U.S. mining laws additional restrictions can be mandated by the state as well as adherence to local customs within a given mining district. For example, the Colorado Territorial Legislature decided that the widths of lode mining claims could not be more than 300 feet wide (150 feet each side of the discovery). The legislation also allowed individual counties to further restrict the widths of lode claims. The counties of Boulder, Clear Creek, Gilpin and Summit required that lode claims could not be any wider than 150 feet (75 feet each side of the discovery). If you look carefully at the connected sheets of approved mineral surveys anywhere in Colorado, all the early claims abided by the state or county limits. It wasn't until 1923 that the widths were expanded to 600 feet to match the U.S. mining laws. You might not regard those additional restrictions as fair, but pragmatism won out for those mining claimants desirous of keeping their mining rights.

Back to the situation at hand, I'm not defending the county, but trying to provide some history and background. The statutes have been amended over time. The section (66-44-5. Minimum standards for individual sewage disposal systems. (1)(i)) that discussed privies and slit trenches has been amended. See 25-10-105. Minimum standards - variances is provided below. The original statute allowed local health boards to prohibit privies. Now, you need to inquire with the county about whether you can get a variance for your existing "system".

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I posted links in the previous thread to the current Colorado Revised Statutes (2016). As I mentioned, using NexisLexis is a pain to get them so below is the text of the more important sections of the current statutes. As I said in my previous post, good luck.

TITLE 25. PUBLIC HEALTH AND ENVIRONMENT
ENVIRONMENTAL CONTROL
ARTICLE 10. ON-SITE WASTEWATER TREATMENT SYSTEMS ACT


25-10-104. Regulation of on-site wastewater treatment systems - state and local rules

(1) The division shall develop, and recommend to the commission for adoption, rules setting forth minimum standards for the location, design, construction, performance, installation, alteration, and use of on-site wastewater treatment systems within Colorado. The commission may establish criteria for issuing variances in the rules.

(2) Every local board of health in the state shall develop and adopt detailed rules for on-site wastewater treatment systems within its area of jurisdiction. The rules must comply with the rules adopted by the commission pursuant to subsection (1) of this section and with sections 25-10-105 and 25-10-106. Before finally adopting such rules or any amendment to the rules, the local board of health shall hold a public hearing on the proposed rules or amendments. The local board of health shall give notice of the time and place of the hearing at least once, at least twenty days before the hearing, in a newspaper of general circulation within its area of jurisdiction. After the public hearing and before final adoption, the local board of health may make changes or revisions to the proposed rules or amendments, and no further public hearing is required regarding the changes or revisions. All rules and amendments must be transmitted to the department no later than five days after final adoption and become effective forty-five days after final adoption unless the department notifies the local board of health before the forty-fifth day that the rules or amendments are not in compliance with this section or section 25-10-105 or 25-10-106.

(3) If a local board of health has not adopted rules in compliance with this section and submitted them to the commission, the commission shall promulgate rules for the areas of the state for which no complying rules have been adopted, except for areas serviced exclusively by a sewage treatment works. Rules for such areas of the state promulgated by the commission must comply with the rules adopted under subsection (1) of this section and sections 25-10-105 and 25-10-106. The rules must be the same for all the areas of the state for which the commission promulgates such rules, except as may be appropriate to provide for differing geologic conditions.

(4) A local board of health may adopt rules after action by the commission under subsection (3) of this section, if the rules comply with the procedural requirements of subsection (2) of this section and are no less stringent than those promulgated by the commission. Rules of the local board so adopted become effective only after they are transmitted to the division and the division determines that they comply with this section and sections 25-10-105 and 25-10-106.

(5) In promulgating rules under this article, the commission and local boards of health shall give consideration to the protection of public health and water quality.

HISTORY: Source: L. 97: Entire article amended with relocations, p. 124, § 1, effective July 1.L. 2006: (1) to (4) amended, p. 1129, § 7, effective July 1.L. 2012: Entire article amended, (HB 12-1126), ch. 137, p. 484, § 1, effective August 8.


25-10-105. Minimum standards - variances

(1) Rules adopted by local boards of health under section 25-10-104 (2) or (4) or promulgated by the commission under section 25-10-104 (1) govern all aspects of the location, design, construction, performance, alteration, installation, and use of on-site wastewater treatment systems and must include minimum standards established by the commission.

(2) (a) A local board of health may grant variances to OWTS rules in accordance with the criteria adopted by the commission under this article.

(b) Applicants for a variance from OWTS rules have the burden of supplying the local board of health with information demonstrating that conditions exist that warrant the granting of the variance.

HISTORY: Source: L. 97: Entire article amended with relocations, p. 126, § 1, effective July 1.L. 2004: (1)(f) to (1)(h) and (1)(l) amended, p. 1312, § 61, effective May 28.L. 2006: (1)(g) and (2)(a) amended, p. 1130, § 8, effective July 1.L. 2012: Entire article amended, (HB 12-1126), ch. 137, p. 485, § 1, effective August 8.L. 2013: (1) amended, (HB 13-1300), ch. 316, p. 1689, § 78, effective August 7.


25-10-106. Basic rules for local administration

(1) Local boards of health or the commission, as appropriate, shall adopt rules under section 25-10-104 that govern all aspects of the application for and issuance of permits, the inspection and supervision of installed systems, the issuance of cease-and-desist orders, the maintenance and cleaning of systems, and the disposal of waste material. The rules must, at a minimum, include provisions regarding:

(a) Procedures by which a person may apply for a permit for an on-site wastewater treatment system. The permit application must be in writing and must include any information, data, plans, specifications, statements, and commitments as required by the local board of health to carry out the purposes of this article.

(b) Review of the application and inspection of the proposed site by the local public health agency;

© Specification of studies to be performed and reports to be made by the applicant and the circumstances under which the studies or reports may be required by the local public health agency;

(d) Determination on behalf of the local public health agency by an environmental health specialist or a professional engineer after review of the application, site inspection, test results, and other required information, whether the proposed system complies with the requirements of this article and the rules adopted under this article;

(e) Issuance of a permit by the health officer or the health officer's designated representative if the proposed system is determined to be in compliance with this article and the rules adopted under this article;

(f) Review by the local board of health, upon request of an applicant, of applications denied by the local public health agency;

(g) The circumstances under which all applications are subject to mandatory review by the local public health agency to determine whether a permit shall issue;

(h) Final inspection of a system to be made by the local public health agency or its designated professional engineer after construction, installation, alteration, or repair work under a permit has been completed, but before the system is placed in use, to determine that the work has been performed in accordance with the permit and that the system is in compliance with this article and the rules adopted under this article;

(i) Inspection of operating systems at reasonable times, and upon reasonable notice to the occupant of the property, to determine if the system is functioning in compliance with this article and the rules adopted under this article. Officials of the local public health agency are permitted to enter upon private property for purposes of conducting such inspections.

(j) Issuance of a repair permit to the owner or occupant of property on which a system is not in compliance. An owner or occupant shall apply to the local public health agency for a repair permit within two business days after receiving notice from the local public health agency that the system is not functioning in compliance with this article or the rules adopted under this article or otherwise constitutes a nuisance or hazard to public health or water quality. The permit shall provide for a reasonable period of time within which the owner or occupant must make repairs, at the end of which period the local public health agency shall inspect the system to ensure that it is functioning properly. Concurrently with the issuance of a repair permit, the local public health agency may authorize the continued use of a malfunctioning system on an emergency basis for a period not to exceed the period stated in the repair permit. The period of emergency use may be extended, for good cause shown, if, through no fault of the owner or occupant, repairs may not be completed in the period stated in the repair permit and only if the owner or occupant will continue to make repairs to the system.

(k) (I) Issuance of an order to cease and desist from the use of any on-site wastewater treatment system or sewage treatment works that is found by the health officer not to be in compliance with this article or the rules adopted under this article or that otherwise constitutes a nuisance or a hazard to public health or water quality. Such an order may be issued only after a hearing is conducted by the health officer not less than forty-eight hours after written notice of the hearing is given to the owner or occupant of the property on which the system is located and at which the owner or occupant may be present, with counsel, and be heard. The order must require that the owner or occupant bring the system into compliance or eliminate the nuisance or hazard within a reasonable period of time, not to exceed thirty days, or thereafter cease and desist from the use of the system. A cease-and-desist order issued by the health officer is reviewable in the district court for the county in which the system is located and upon a petition filed no later than ten days after the order is issued.

(II) For the purposes of this paragraph (k), any system or sewage treatment works that does not comply with any statute or rule of this title constitutes a nuisance.

(III) For the purposes of this paragraph (k), a sewage treatment works does not include any sewage treatment facility with a discharge permit issued pursuant to section 25-8-501.

(l) Reasonable periodic collection and testing by the local public health agency of effluent samples from on-site wastewater treatment systems for which monitoring of effluent is necessary in order to ensure compliance with this article or the rules adopted under this article. The sampling may be required not more than two times a year, except when required by the health officer in conjunction with action taken pursuant to paragraph (k) of this subsection (1). The local public health agency may charge a fee not to exceed actual costs, plus locally established mileage reimbursement rates for each mile traveled from the principal office of the local public health agency to the site of the system and return, for each sample collected and tested, and payment of such charges may be stated in the permit for the system as a condition for its continued use. Any owner or occupant of property on which an on-site wastewater treatment system is located may request the local public health agency to collect and test an effluent sample from the system. The local public health agency may, at its option, perform such collection and testing services, and is entitled to charge a fee not to exceed actual costs, plus locally established mileage reimbursement rates for each mile traveled from the principal office of the local public health agency to the site of the system and return, for each sample collected and tested.

(m) At the option of the local board of health, maintenance and cleaning schedules and practices adequate to ensure proper functioning of various types of on-site wastewater treatment systems. The local board of health may additionally require proof of proper maintenance and cleaning, in compliance with the schedule and practices adopted under this subsection (1), to be submitted periodically to the local public health agency by the owner of the system.

(n) Disposal of septage at a site and in a manner that does not create a hazard to the public health, a nuisance, or an undue risk of pollution.

HISTORY: Source: L. 97: Entire article amended with relocations, p. 128, § 1, effective July 1.L. 2001: (1)(k) amended, p. 304, § 1, effective April 9.L. 2004: (1)©, (1)(e), and (1)(h) amended, p. 1313, § 62, effective May 28.L. 2010: (1)(f) amended, (HB 10-1422), ch. 419, p. 2105, § 122, effective August 11.L. 2012: Entire article amended, (HB 12-1126), ch. 137, p. 487, § 1, effective August 8.


25-10-112. General prohibitions - rules

(1) No city, county, or city and county shall issue to any person:

(a) A permit to construct or remodel a building or structure that is not serviced by a sewage treatment works until the local public health agency has issued a permit for an on-site wastewater treatment system; or

(b) A city, county, or city and county occupancy permit for the use of a building that is not serviced by a sewage treatment works until the local public health agency makes a final inspection of the on-site wastewater treatment system, as provided for in section 25-10-106 (1) (h), and the local public health agency approves the installation.

(2) Construction of new cesspools is prohibited.

(3) A person shall not connect more than one dwelling, commercial, business, institutional, or industrial unit to the same on-site wastewater treatment system unless such multiple connection was specified in the application submitted and in the permit issued for the system.

(4) No person shall construct or maintain any dwelling or other occupied structure that is not equipped with adequate facilities for the sanitary disposal of sewage.

(5) All persons shall dispose of septage removed from systems in the process of maintenance or cleaning at an approved site and in an approved manner under this article.

HISTORY: Source: L. 97: Entire article amended with relocations, p. 132, § 1, effective July 1.L. 2012: Entire article amended, (HB 12-1126), ch. 137, p. 492, § 1, effective August 8.


25-10-113. Penalties

(1) Any person who commits any of the following acts or violates this article commits a class 1 petty offense and shall be punished as provided in section 18-1.3-503, C.R.S.:

(a) Constructs, alters, installs, or permits the use of any on-site wastewater treatment system without first applying for and receiving a permit as required under this article;

(b) Constructs, alters, or installs an on-site wastewater treatment system in a manner that involves a knowing and material variation from the terms or specifications contained in the application, permit, or variance;

© Violates the terms of a cease-and-desist order that has become final under section 25-10-106 (1) (k);

(d) Conducts a business as a systems contractor without having obtained the license provided for in section 25-10-109 (1) in areas in which the local board of health has adopted licensing regulations pursuant to that section;

(e) Conducts a business as a systems cleaner without having obtained the license provided for in section 25-10-109 (2) in areas in which the local board of health has adopted licensing regulations pursuant to that section;

(f) Falsifies or maintains improper record keeping concerning system cleaning activities not performed or performed improperly; or

(g) Willfully fails to submit proof of proper maintenance and cleaning of a system as required by rules adopted pursuant to section 25-10-106.

(2) Upon a finding by the local board of health that a person is in violation of this article or of rules adopted and promulgated pursuant to this article, the local board of health may assess a penalty of up to fifty dollars for each day of violation. In determining the amount of the penalty to be assessed, the local board of health shall consider the seriousness of the danger to the health of the public caused by the violation, the duration of the violation, and whether the person has previously been determined to have committed a similar violation.

(3) A person subject to a penalty assessed pursuant to subsection (2) of this section may appeal the penalty to the local board of health by requesting a hearing before the appropriate body. The request must be filed within thirty days after the penalty assessment is issued. The local board of health shall conduct a hearing upon the request in accordance with section 24-4-105, C.R.S.

HISTORY: Source: L. 97: Entire article amended with relocations, p. 133, § 1, effective July 1.L. 2002: IP(1) amended, p. 1537, § 269, effective October 1.L. 2012: Entire article amended, (HB 12-1126), ch. 137, p. 493, § 1, effective August 8.