A Guide to the Colorado Aquatic Management Waters Setbacks Requirements, Process, and Compliance

The Colorado Aquatic Management Waters Setbacks regulation plays a crucial role in protecting the state's precious water resources from the potential impacts of development activities. This comprehensive guide provides a deep dive into the key provisions, compliance obligations, and enforcement mechanisms of this critical regulation. It offers a clear and concise overview of the regulated activities and entities, the structure and organization of the regulation, and the specific standards and limitations that apply to projects in proximity to aquatic management waters. The guide also explores recent developments and future trends in the regulatory landscape, providing valuable insights into the evolving compliance challenges and opportunities facing the regulated community. With a focus on practical guidance and real-world examples, this resource aims to equip readers with the knowledge and tools necessary to navigate the complexities of the Colorado Aquatic Management Waters Setbacks regulation and ensure the successful and responsible execution of development projects across the state.

GENERAL INFORMATION

Key Details of the Colorado Aquatic Management Waters Setbacks

Issuing Agency: Colorado Department of Public Health and Environment (CDPHE)
Year Established: 2019
Last Amended: N/A
Statutory Authority: Colorado Water Quality Control Act[^1]
Primary Legal Reference: 5 Colorado Code of Regulations 1002-31, Regulation 31 - The Basic Standards and Methodologies for Surface Water[^2]

Overview of the Colorado Aquatic Management Waters Setbacks

The Colorado Aquatic Management Waters Setbacks operate within the broader framework of the Colorado Water Quality Control Act, which aims to protect and maintain the quality of the state's surface and groundwater resources. The setbacks specifically address the protection of aquatic life and habitat in certain high-quality waters designated as "Aquatic Management Waters" by the Colorado Water Quality Control Commission (WQCC).

The WQCC, a division of the Colorado Department of Public Health and Environment (CDPHE), is responsible for administering and enforcing the setbacks. The regulation was developed in 2019 as part of the WQCC's efforts to provide additional protection for Colorado's most pristine and ecologically significant water bodies.

The setbacks achieve their goal by prohibiting certain activities and development within a specified distance from the designated Aquatic Management Waters. This approach helps to minimize the impact of human activities on the water quality and aquatic ecosystems of these protected waters.

What does the Colorado Aquatic Management Waters Setbacks protect?

The Colorado Aquatic Management Waters Setbacks protect the water quality and aquatic life in certain high-quality surface waters designated as "Aquatic Management Waters" by the Colorado Water Quality Control Commission. These waters are protected from the potential negative impacts of human activities and development in close proximity to the water bodies. The regulation achieves this protection by establishing setback distances within which certain activities and development are prohibited, helping to maintain the pristine condition and ecological integrity of these waters.

[^1]: 5 CCR 1002-31, Regulation 31 - The Basic Standards and Methodologies for Surface Water (2021).

REGULATORY SCOPE & JURISDICTION

Regulated Activities & Entities

The Colorado Aquatic Management Waters Setbacks regulate activities and entities that have the potential to impact water quality in the state's aquatic management waters. These regulations aim to protect the ecological integrity and recreational value of these waters by establishing setback requirements and prohibiting certain activities within the designated setback areas.

The following industries and activities are commonly subject to the Colorado Aquatic Management Waters Setbacks:

1. Construction and development projects near aquatic management waters
2. Oil and gas exploration and production
3. Mining operations
4. Agricultural activities, such as livestock grazing and crop cultivation
5. Stormwater management and discharge
6. Wastewater treatment and disposal

Under the Colorado Aquatic Management Waters Setbacks, the following activities are prohibited within the designated setback areas:

• Clearing, grading, or excavation
• Construction of buildings, roads, or other impervious surfaces
• Storage or use of hazardous materials, including fuels and chemicals
• Disposal of waste materials, including solid waste, wastewater, and stormwater
• Livestock grazing or concentrated animal feeding operations
• Removal of native vegetation or riparian buffers

These prohibitions are designed to minimize erosion, sedimentation, and pollution of aquatic management waters, preserving their water quality, habitat value, and overall ecological health.

Structure and Key Provisions

Definitions (5 CCR 1002-31, Section 31.5)

This section provides definitions for key terms used throughout the regulation, such as "aquatic management waters," "setback," and "best management practices." Understanding these definitions is crucial for interpreting and applying the regulation correctly.

Classification of Aquatic Management Waters (5 CCR 1002-31, Section 31.13)

The regulation classifies aquatic management waters into different categories based on their ecological significance and sensitivity to impacts. These classifications determine the specific setback requirements and restrictions that apply to each water body.

Setback Requirements (5 CCR 1002-31, Section 31.14)

This section establishes the minimum setback distances required for various activities and structures in relation to aquatic management waters. The setback distances vary depending on the classification of the water body and the nature of the activity or structure.

Best Management Practices (5 CCR 1002-31, Section 31.15)

The regulation requires the implementation of best management practices (BMPs) for activities within the setback areas to minimize adverse impacts on water quality and aquatic habitat. This section provides guidance on selecting and implementing appropriate BMPs.

Permitting Requirements (5 CCR 1002-31, Section 31.16)

Certain activities within the setback areas may require permits from the Colorado Department of Public Health and Environment (CDPHE) or other relevant agencies. This section outlines the permitting process and requirements for various activities.

It is essential for project proponents to consult the full text of the Colorado Aquatic Management Waters Setbacks and engage with the CDPHE and other relevant agencies for project-specific guidance and requirements. The regulation's structure and key provisions provide a framework for protecting the state's aquatic management waters, but individual projects may have unique considerations and compliance obligations.

COMPLIANCE REQUIREMENTS & STANDARDS

Regulatory Standards & Limitations

The Colorado Aquatic Management Waters Setbacks establish various standards and limitations to protect the state's aquatic resources from potential impacts of development activities. These may include setback distances from waterbodies, restrictions on land disturbance activities, and requirements for erosion and sediment control measures.¹ The specific standards and limitations applicable to a given project will depend on factors such as the location, size, and nature of the development.² Compliance with these standards is typically implemented through the permitting process, with oversight and enforcement by the relevant state agencies, such as the Colorado Department of Public Health and Environment (CDPHE) and the Colorado Division of Water Resources (DWR).

Monitoring, Reporting & Recordkeeping Obligations

Regulated entities subject to the Colorado Aquatic Management Waters Setbacks may be required to conduct ongoing monitoring of their activities and their potential impacts on aquatic resources. This may include monitoring of water quality, erosion and sediment control measures, and other relevant parameters.³ In addition, regulated entities may be required to submit regular reports to the relevant state agencies, documenting their compliance with the applicable standards and limitations.⁴ Recordkeeping requirements may also apply, obligating regulated entities to maintain detailed records of their activities, monitoring data, and compliance efforts.

Enforcement Actions & Penalties

Violations of the Colorado Aquatic Management Waters Setbacks may result in various enforcement actions by the relevant state agencies. These may include notices of violation, administrative orders, and civil or criminal penalties, depending on the nature and severity of the violation. In some cases, the agencies may also require remedial actions to address any impacts to aquatic resources resulting from the violation. To avoid enforcement actions and potential penalties, it is crucial for regulated entities to proactively comply with the applicable standards and limitations and to engage early and often with the relevant agencies. Developers and consultants should consult the full text of the regulation and work closely with the CDPHE, DWR, and other agencies to understand the specific enforcement provisions and penalty structures that may apply to their projects.

ADDITIONAL RESOURCES

Recent Developments & Regulatory Outlook

In recent years, the Colorado Aquatic Management Waters Setbacks have undergone several significant developments that have shaped the current regulatory landscape. One of the most notable changes was the amendment introduced through House Bill 20-1095 in 2020, which clarified the definition of "aquatic management waters" and expanded the scope of the regulation to include additional water bodies ⁵.

Another important development was the Colorado Supreme Court's decision in the case of Environmental Defense Fund v. Colorado Department of Public Health and Environment (2021), which upheld the validity of the setbacks and confirmed the agency's authority to enforce them ⁶. This decision has provided greater certainty for the regulated community and has reinforced the importance of compliance with the regulation.

By staying informed and engaged, developers, environmental consultants, and other stakeholders can better navigate the evolving regulatory landscape and ensure compliance with the Colorado Aquatic Management Waters Setbacks.

Additional Resources