Chapter 7.35
STORMWATER MANAGEMENT1
Sections:
7.35.010 Adoption of water quality ordinance.
7.35.050 Conditionally allowed nonstormwater discharges.
7.35.060 Control of urban runoff – Generally.
7.35.070 Control of urban runoff – Construction projects.
7.35.080 Control of urban runoff – New development and redevelopment projects.
7.35.100 Enforcement – Generally.
7.35.110 Administrative remedies.
7.35.120 Procedures for administrative enforcement actions.
7.35.130 Criminal enforcement.
7.35.160 Consecutive violations.
7.35.170 Nonexclusive remedies.
7.35.180 Interagency coordination.
7.35.190 Compliance disclaimer.
7.35.010 Adoption of water quality ordinance.
Pursuant to Article XI, Section 7 of the State Constitution, which authorizes the city to exercise the police power of the state by adopting regulations promoting the public health, public safety and general prosperity, and in compliance with the conditions of the city’s National Pollutant Discharge Elimination System permit, there is hereby adopted a water quality ordinance. [Ord. 2018-203 § 1; Ord. 2010-128 § 1; Ord. 2010-126 § 1 (Exh. A); Ord. 2003-044 § 1 (4-13-10)].
7.35.020 Purpose.
The purpose of the water quality ordinance is to prescribe regulations as mandated by the Clean Water Act (33 U.S.C. 1251 et seq., as amended) and the Porter-Cologne Water Quality Control Act (California Water Code Section 13000 et seq., as amended) to effectively prohibit nonstormwater discharges into the storm sewers and to reduce the discharge of pollutants. Human activities, such as agriculture, construction and the operation and the maintenance of an urban infrastructure, may result in undesirable discharges of pollutants and certain sediments, which may accumulate in local drainage channels and waterways and eventually may be deposited into waters of the state and waters of the United States. This chapter will improve water quality by controlling the pollutants which enter the network of storm drains through the city of Aliso Viejo. [Ord. 2018-203 § 1; Ord. 2010-128 § 1; Ord. 2010-126 § 1 (Exh. A); Ord. 2003-044 § 1 (4-13-20)].
7.35.030 Definitions.
“Authorized inspector” means the director of public works and persons designated by and under his/her instruction and supervision, who are assigned to investigate compliance with, detect violations of, and/or take actions pursuant to this chapter.
“Car washing fundraisers” means an event where individuals wash cars in exchange for the payment of money or for a nonmonetary donation to be used to fund, or in connection with, a not-for-profit activity or event, including, without limitation, youth sports, youth bands, boy and girl scouting, cheerleading or other activities. The term “car washing fundraisers” does not include individual residential car washing or for-profit car washing performed at a legal business that possesses all appropriate permits, licenses, and registrations, and implements proper best management practices for pollution prevention.
“City” means the city of Aliso Viejo, Orange County, California.
“Co-permittee” means the county of Orange, the Orange County Flood Control District, and/or any one of the 11 South Orange County municipalities, including the city of Aliso Viejo, which are responsible for compliance with the terms of the NPDES permit issued by the Regional Water Board for South Orange County.
“DAMP” means the Orange County drainage area management plan, as amended.
“Development project” means any construction, rehabilitation, redevelopment or reconstruction of any public or private project.
“Director” means the director of the city’s public works department, or designee.
“Discharge” means any release, spill, leak, pump, flow, escape, leaching (including subsurface migration or deposition to groundwater), dumping or disposal of any liquid, semi-solid or solid substance.
“Enforcing attorney” means the city attorney, or designee, or the Orange County district attorney acting as counsel to the city, which counsel is authorized to take enforcement action as described herein.
“Environmentally sensitive areas” or “ESAs” means environmentally sensitive areas as defined in the city’s NPDES permit regulating discharges into and from the MS4.
“EPA” means the United States Environmental Protection Agency.
“Illicit connection” means any manmade conveyance or drainage system, pipeline, conduit, inlet or outlet through which the discharge of any pollutant to the MS4 occurs or may occur, other than discharges that comply with the requirements of this chapter.
“Invoice for costs” means the actual costs and expenses of the city, including, but not limited to, administrative overhead, salaries and other expenses recoverable under state law, incurred during any inspection conducted pursuant to this chapter, or where a notice of noncompliance, administrative compliance order or other enforcement option under this chapter is utilized to obtain compliance with this chapter.
“Legal nonconforming connection” means connections to the MS4 existing as of the adoption of the ordinance codified in this chapter that were in compliance with all federal, state and local rules, regulations, statutes and administrative requirements in effect at the time the connection was established, including, but not limited to, any discharge permitted pursuant to the terms and conditions of an individual discharge permit issued pursuant to the industrial waste ordinance.
“Municipal separate storm sewer system” or “MS4” means the city’s conveyance or system of conveyances designed or used for collecting or conveying stormwater as such term is defined at 40 C.F.R. 122.26(b)(8), as amended.
“New development” means all public and private residential (whether single-family, multi-unit or planned unit development), industrial, commercial, retail and other nonresidential construction projects, or grading for future construction, for which either a discretionary land use approval, grading permit, building permit or nonresidential plumbing permit is required.
“Nonresidential plumbing permit” means a plumbing permit authorizing the construction and/or installation of facilities for the conveyance of liquids other than stormwater, potable water, reclaimed water or domestic sewage.
“NPDES permit” means the currently applicable National Pollutant Discharge Elimination System (NPDES) permit and/or waste discharge requirements issued by the Regional Water Board regulating the discharge of pollutants and/or waste to waters of the United States and waters of the state, as defined in the Federal Clean Water Act and the California Water Code.
“Person” means any natural person as well as any corporation, partnership, government entity or subdivision, trust, estate, cooperative association, joint venture, business entity or other similar entity, or the agent, employee or representative of any of the above.
“Pollutant” means any liquid, solid or semi-solid substances, or combination thereof, including, and not limited to:
1. Artificial materials (such as floatable plastics, wood products or metal shavings);
2. Household waste (such as trash, paper, and plastics; cleaning chemicals and disinfectants; yard wastes; animal fecal materials; used oil and fluids from vehicles, lawn mowers and other common household equipment);
3. Metals and nonmetals, including compounds of metals and nonmetals (such as cadmium, lead, zinc, copper, silver, nickel, chromium, cyanide, phosphorus and arsenic), with characteristics which cause an adverse effect on living organisms;
4. Petroleum and related hydrocarbons (such as fuels, lubricants, surfactants, waste oils, solvents, coolants and grease);
5. Animal wastes (such as discharges from mobile pet care services, confinement facilities, kennels, pens and recreational facilities, including stables, show facilities or polo fields);
6. Substances having a pH less than 6.5 or greater than 8.6, or unusual coloration, turbidity or odor;
7. Waste materials and wastewater generated on construction sites and by construction activities (such as painting and staining; use of sealants and glues; use of lime; use of wood preservatives and solvents; disturbance of asbestos fibers, paint flakes or stucco fragments; application of oils, lubricants, hydraulic, radiator or battery fluids; construction equipment washing; concrete pouring and cleanup; use of concrete detergents; steam cleaning or sand blasting; use of chemical degreasing or diluting agents; use of super chlorinated water for potable water line flushing and pressure washing);
8. Materials causing an increase in biochemical oxygen demand, chemical oxygen demand or total organic carbon;
9. Materials which contain base/neutral or acid extractable organic compounds;
10. Those pollutants defined in the Federal Clean Water Act at 33 U.S.C. 1362(6); and
11. Any other constituent or material, including, but not limited to, pesticides, herbicides, fertilizers, fecal coliform, fecal streptococcus or enterococcus, or eroded soils, sediment and particulate materials, in quantities that will interfere with or adversely affect the beneficial uses of the receiving waters, flora or fauna of the state.
“Priority development project” or “PDP” means those land development projects that are defined in the NPDES permit issued to the city by the Regional Water Board, as amended.
“Prohibited discharge” means any discharge to the city’s MS4 that is not composed entirely of stormwater. This prohibition also includes, but is not limited to, the discharge of any pollutant, including landscape irrigation runoff, to (1) any groundwater, river, stream, creek, wash or dry weather arroyo, wetlands area, marsh, or coastal slough in a manner which causes or threatens to cause a condition of pollution or nuisance as those terms are defined in California Water Code Section 13050; (2) the MS4; or (3) any water body or conveyance which is tributary to the MS4.
“Regional Water Board” means San Diego Regional Water Quality Control Board.
“Significant redevelopment” means the rehabilitation or reconstruction of public or private residential (whether single-family, multi-unit or planned unit development), industrial, commercial, retail, or other nonresidential structures, for which either a discretionary land use approval, grading permit, or building permit involving cementitious material handling outside the building footprint is required.
“State general permit” means either the state industrial general stormwater permit or the state construction general permit and the terms and requirements of either or both. In the event the EPA revokes the in-lieu permitting authority of the State Water Resources Control Board, then the term “state general permit” also refers to any EPA-administered stormwater control program for industrial and construction activities.
“Water quality manual” means the rules, procedures, and interpretations thereof formulated by the director to implement this chapter or the NPDES permit. The term “water quality manual” includes the city’s jurisdictional urban runoff management plan (“JURMP”) or local implementation plan (“LIP”), the DAMP and the city’s NPDES permit. [Ord. 2018-203 § 1; Ord. 2010-128 § 1; Ord. 2010-126 § 1 (Exh. A); Ord. 2003-054 § 1; Ord. 2003-051 § 1; Ord. 2003-044 § 1 (4-13-30)].
Cross-reference: definitions generally, AVMC 1.02.010.
7.35.040 Prohibitions.
A. It is unlawful for any person to:
1. Discharge nonstormwater to the city’s MS4 except in compliance with the requirements of this chapter.
2. Construct, maintain, operate or use any illicit connection to any storm drain system, including the city’s MS4.
3. Cause, allow or facilitate any prohibited discharge.
4. Act, cause, permit or suffer any agent, employee or independent contractor to construct, maintain, operate or utilize any illicit connection, or cause, allow or facilitate any prohibited discharge.
5. Discharge any material into the MS4 or into any water of the United States within the city’s jurisdiction that may cause or threaten to cause a condition of pollution, contamination or nuisance within the meaning of California Water Code Section 13050. [Ord. 2018-203 § 1; Ord. 2010-128 § 1; Ord. 2010-126 § 1 (Exh. A); Ord. 2003-044 § 1 (4-13-40)].
7.35.050 Conditionally allowed nonstormwater discharges.
A. Notwithstanding the prohibitions in AVMC 7.35.040, the following nonstormwater discharges are conditionally permitted if they comply with the following requirements:
1. Any discharge to the MS4 that is regulated under an NPDES permit issued to the discharger and administered by the state of California pursuant to Division 7 of the California Water Code is conditionally allowed, provided the discharger is in compliance with all requirements of the NPDES permit and other applicable laws and regulations.
2. The following nonstormwater discharges to the MS4 are allowed only if: (a) the discharger obtains coverage under an NPDES permit issued by the Regional Water Board for the discharge or the Regional Water Board determines in writing that coverage under an NPDES permit is not required; and (b) the discharger is in compliance with all requirements of the applicable NPDES permit, waiver or other conditions imposed by the Regional Water Board, and all other applicable laws and regulations. Otherwise, nonstormwater discharges from the following categories are illicit discharges:
a. Discharges from uncontaminated pumped groundwater;
b. Discharges from foundation drains when the system is designed to be located at or below the groundwater table to actively or passively extract groundwater during any part of the year;
c. Discharges from crawl space pumps;
d. Discharges from footing drains when the system is designed to be located at or below the groundwater table to actively or passively extract groundwater during any part of the year;
e. Water line flushing and water main breaks;
f. Discharges from recycled or reclaimed water lines.
3. Nonstormwater discharges to the MS4 from the following categories are conditionally allowed, unless the city or Regional Water Board identifies the discharge as a source of pollutants to the MS4 or receiving waters:
a. Discharges from diverted stream flows;
b. Discharges from rising groundwater;
c. Discharges from uncontaminated groundwater infiltration to the MS4;
d. Discharges from springs;
e. Discharges from riparian habitats and wetlands;
f. Discharges from potable water sources, except discharges from water lines requiring an NPDES permit, as set forth in subsection (A)(2) of this section.
4. Nonstormwater discharges from the following categories are conditionally allowed if they are addressed with BMPs as set forth in the water quality manual. Otherwise, nonstormwater discharges from the following categories are illicit discharges:
a. Air conditioning condensation;
b. Individual residential vehicle washing; and
c. Water from swimming pools.
5. Nonstormwater discharges to the MS4 from firefighting activities are conditionally allowed if they are addressed as follows:
a. Nonemergency Firefighting Discharges. Nonemergency firefighting discharges, including building fire suppression system maintenance discharges (e.g., sprinkler line flushing), controlled or practice blazes, training, and maintenance activities, must be addressed by BMPs as set forth in the water quality manual to prevent the discharge of pollutants to the MS4.
b. Emergency Firefighting Discharges. During emergencies, priority of efforts should be directed toward life, property, and the environment. Emergency firefighting discharges must be addressed by BMPs that do not interfere with emergency response operations or impact public health and safety.
B. Notwithstanding the categories of nonstormwater discharges conditionally allowed by subsection (A) of this section, if the city or Regional Water Board determines that any of these otherwise conditionally allowed nonstormwater discharges are a source of pollutants to receiving waters, are a danger to public health or safety, or are causing a public nuisance, such discharges are prohibited from entering the MS4. [Ord. 2018-203 § 1].
7.35.060 Control of urban runoff – Generally.
A. BMP Implementation. Each owner, operator, or person in charge of day-to-day activities of any site that may discharge to the city’s MS4 must implement those BMPs set forth in the water quality manual and as may be designated by the authorized inspector, city engineer or program manager, including but not limited to pollution prevention BMPs and pesticides, herbicides, and fertilizers BMPs. Properties with a high possibility of discharge may be required to implement a monitoring program that meets standards as determined necessary by the authorized inspector.
B. Litter Control. It is unlawful for any person to place or discard any waste material, including, but not limited to, common household rubbish or garbage of any kind (whether generated or accumulated at a residence, business, or other location), in any location where the same may discharge to the MS4.
C. Discharge Permit Required.
1. Permit Required. A water quality discharge permit is required for all construction, significant redevelopment, and new construction projects that do not otherwise require a building, grading, or other permit from the city, except for those projects for which the permit requirement is waived pursuant to subsection (C)(7) of this section. A water quality discharge permit may not be issued for nonstormwater discharges, and the director may only issue a permit if:
a. The discharge of material or constituents is reasonably necessary for the conduct of otherwise legal activities on the property; and
b. The discharge will not cause a nuisance, contamination, or pollution as those terms are defined in California Water Code Section 13050, impair the beneficial uses of receiving waters, or cause any reduction in established water quality standards established in the Water Quality Control Plan for the San Diego Basin issued and adopted by the Regional Water Board.
2. Application. The applicant must provide all information requested by the director for review and consideration of the application, including, but not limited to, specific detail as to the activities to be conducted on the property, plans and specifications for facilities located on the property, identification of equipment or processes to be used on site, and other information as may be requested in order to determine the constituents and quantities thereof, which may be discharged if permission is granted.
3. Permit Issuance. The permit will be granted or denied by the director no later than 60 business days following the completion and acceptance of the application as determined by the director. The applicant must be notified in person or by first class mail, postage prepaid, of the action taken.
4. Permit Conditions. The permit may include terms, conditions, and requirements to ensure compliance with the objectives of this chapter and as necessary to protect receiving waters.
5. Permit Fees. The permission to discharge is conditioned upon the applicant’s payment of the city’s costs in accordance with a fee schedule adopted by separate resolution.
6. General Permit. In the discretion of the director, a permit may, in accordance with the conditions identified in subsection (C)(4) of this section, be prepared as a general permit applicable to a specific category of activities.
a. If a general permit is issued, any person intending to discharge within the scope of the authorization provided by the general permit may do so by filing an application to discharge with the director.
b. No discharge within the scope of the general permit may occur until such application is so filed.
c. The director has the discretion to eliminate the requirement that an application for a general permit be filed for any specific activity for which a general permit has been issued.
7. Permit Waiver and Exceptions. If the director determines that a car washing fundraiser or construction, significant redevelopment or new construction project otherwise subject to this section will have a de minimis impact on the quality of stormwater runoff, then he or she may issue a written waiver of the requirement contained herein to obtain a stormwater permit.
D. Permit Suspension, Revocation, or Modification.
1. The director may suspend or revoke any permit when it is determined that:
a. The permittee has violated any term, condition, or requirement of the permit or any applicable provision of this chapter;
b. The permittee’s discharge, or the circumstances under which the discharge occurs, has changed, so that it is no longer appropriate to except the discharge from the prohibitions on prohibited discharge contained within this chapter;
c. The permittee fails to comply with any schedule for compliance issued pursuant to this chapter;
d. Any regulatory agency, including EPA or Regional Water Board, having jurisdiction over the discharge, notifies the city that the discharge should be terminated; or
e. Any other circumstances where the director determines in his or her sole discretion that continuation of the discharge will result in substantial harm to public health or the environment.
2. The director may modify any permit; provided, however, that the permittee must be informed of any change in the permit terms and conditions at least 45 business days prior to the effective date of the modified permit and, in the case of a general permit, terms and conditions must be published in a newspaper of general circulation within the city at least 60 days prior to the effective date of the modified permit, when it is determined that:
a. Federal or state law requirements have changed in a manner that necessitates a change in the permit;
b. The permittee’s discharge or the circumstances under which the discharge occurs have changed so that it is appropriate to modify the permit’s terms, conditions, or requirements; or
c. A change to the permit is necessary to ensure compliance with the objectives of this chapter or to protect the quality of receiving waters.
3. The determination to deny, suspend, revoke, or modify a permit may be appealed by a permittee pursuant to the same procedures applicable to appeal of an administrative order hereunder.
E. Permit Enforcement. Any violation of the terms, conditions, and requirements of any permit issued by the director constitutes a violation of this chapter and may subject the violator to the administrative, civil, and/or criminal remedies available under this chapter.
F. Permit Terms and Conditions – Permittee Rights.
1. Compliance with the terms, conditions, and requirements of a permit issued pursuant to this chapter does not relieve the permittee from compliance with all federal, state, and local laws, regulations, and permit requirements applicable to the activity for which the permit is issued.
2. Limited Permittee Rights. Permits issued under this chapter are for the person or entity identified therein as the “permittee” only, and authorize the specific operation at the specific location identified in the permit. The issuance of a permit does not vest the permittee with a continuing right to discharge.
3. Transfer of Permits. No permit issued to any person may be transferred. [Ord. 2018-203 § 1].
7.35.070 Control of urban runoff – Construction projects.
A. Construction and Grading Permits. In addition to the requirements set forth in AVMC 7.35.080, prior to issuance of any permit or authorization that allows the commencement of activities involving ground or soil disturbance that can potentially generate pollutants in stormwater runoff, the project applicant must:
1. Submit a pollution control plan, construction BMP plan, and/or an erosion and sediment control plan meeting the requirements of the water quality manual;
2. Obtain and submit evidence of coverage under the statewide Construction General Permit (State Water Resources Control Board Order No. 2009-0009-DWQ, as amended), if applicable.
B. The person in charge of each construction site must comply with all conditions of the Construction General Permit and implement BMPs to prohibit all discharges, except for the stormwater and nonstormwater discharges specifically authorized by a state general permit or other NPDES permit. BMPs must be site specific, seasonally appropriate, and construction phase appropriate. Dry season BMP implementation must plan for and address unseasonal rain events. At a minimum, BMPs must be selected and implemented in accordance with the water quality manual. For those construction sites that are tributary to impaired water bodies and/or that are within or directly adjacent to or discharging directly to receiving waters within environmentally sensitive areas, such BMPs must include such additional controls as the authorized inspector may require.
C. Inspections. Construction and grading sites, and discharges from such sites and operations, are identified under the NPDES permit as creating increased threats to water quality during the rainy season. The authorized inspector is authorized to inspect each high priority construction site at least once weekly during the rainy season, during normal business hours. The authorized inspector may further inspect each medium/low priority construction site at least twice during the rainy season.
D. Cost Recovery. The project applicant must reimburse the city for all costs and expenses incurred in the review of submissions required by this section. The city may elect to require a deposit of estimated costs and expenses, and deduct the actual costs and expenses from the deposit and refund the balance, if any, to the project applicant. [Ord. 2018-203 § 1].
7.35.080 Control of urban runoff – New development and redevelopment projects.
A. All New Development and Redevelopment.
1. Any person proposing a development project in the city, regardless of whether a permit is required for such work, must effectively prohibit pollutants from entering the stormwater conveyance system by complying with all applicable local ordinances and the water quality manual. To the extent any requirements in an applicable NPDES permit, design manual, or plan conflict with any other provision of this chapter, the requirement that is most protective of the environment prevails. At a minimum:
a. On-site BMPs must be located so as to remove pollutants from runoff prior to discharging to any receiving waters or to the MS4, and be located as close to the source as possible and must be designed and implemented to avoid creating nuisance or additional pollutant sources, including those associated with vectors;
b. Structural BMPs must not be constructed within waters of the United States; and
c. Source control and low impact development BMPs must be implemented where applicable and feasible.
2. Prior to the issuance by the city of a grading permit or building permit for any new development or significant redevelopment, the project applicant must submit project plans demonstrating compliance with all applicable local ordinances, the CASQA standards, and the water quality manual. At a minimum, the following requirements apply to all new development and significant redevelopment:
a. The owner or applicant of a new development or significant redevelopment project must submit a water quality management plan in accordance with the water quality manual. The plan must describe the manner in which BMPs required by this chapter will be implemented and maintained.
b. All new development and significant redevelopment projects must be designed, constructed, and maintained to employ post-construction BMPs consistent with the water quality manual.
3. The owner of a new development or significant redevelopment project, or, upon transfer of the property, its successors and assigns, must implement and adhere to the terms, conditions, and requirements imposed pursuant to this chapter and any permit or other authorization or mechanism imposing conditions pursuant to this chapter. Failure by the owner of the property or its successors or assigns to implement and adhere to the terms, conditions, and requirements imposed pursuant to this section constitutes a violation of this chapter.
4. The director may require that the terms, conditions and requirements imposed pursuant to this section be incorporated into a maintenance agreement in accordance with subsection (B)(3) of this section and be recorded with the Orange County clerk-recorder’s office by the property owner.
B. Priority Development Projects. In addition to the requirements in subsection (A) of this section, priority development projects are subject to the following requirements:
1. The owner or applicant of a PDP must install and implement BMPs in accordance with the requirements of this chapter prior to receiving final approval of the project or as otherwise specified in the conditions of approval, including the following:
a. All PDPs must be designed, constructed, and maintained to employ post-construction BMPs consistent with the water quality manual, including, but not limited to, the following:
i. Low impact development BMPs designed to retain (intercept, store, infiltrate, evaporate, and evapotranspire) on site the pollutants contained in the volume of stormwater runoff produced from a 24-hour, eighty-fifth percentile storm event (design capture volume). If applicant demonstrates to the director’s satisfaction that on-site retention is not technically feasible, biofiltration or flow-thru BMPs may be used in accordance with the following:
(A) Biofiltration BMPs must be designed to have an appropriate hydraulic loading rate to maximize stormwater retention and pollutant removal; prevent erosion, scour, and channeling within the BMP; and be sized to treat one and one-half times the design capture volume not reliably retained on site.
(B) If biofiltration BMPs are not technically feasible, flow-thru treatment control BMPs may be used; provided, however, that such BMPs must treat the design capture volume not reliably retained on site and must be sized and designed in accordance with the requirements of the municipal permit and water quality manual.
ii. Hydromodification management BMPs that are sized and designed such that post-project runoff conditions (flow rates and durations) will not exceed the pre-development runoff conditions by more than 10 percent (for the range of flows that result in increased potential for erosion or degraded in-stream habitat downstream of the priority development project). A PDP may be exempt from the hydromodification management BMP requirements in this subsection, at the discretion of the director, where the project discharges water to any of the following: existing underground storm drains that discharge directly to water storage reservoirs, lakes, enclosed embayments, or the Pacific Ocean; conveyance channels whose bed and bank are concrete lined from the point of discharge to the water storage reservoir, lake, enclosed embayment, or the Pacific Ocean; or an area the city deems appropriate for an exemption pursuant to any watershed management area analysis incorporated into an applicable water quality improvement plan accepted by the Regional Water Board.
2. All PDPs must avoid critical course sediment yield areas identified by the city or in any watershed management area analysis accepted by the Regional Water Board unless measures are implemented that allow for no net impact from critical coarse sediment to the receiving water and comply with the water quality manual.
3. As a condition of development, the owner of a PDP must, prior to occupancy of the development, enter into an agreement to maintain treatment control BMPs with the city. The agreement must be recorded to run with the land and be binding upon the owner, heirs, and successors in interest to the project and to any real property developed in conjunction with the project in perpetuity. The agreement must include an annual requirement that verification of the effective operation and maintenance of each approved treatment control BMP be conducted by the owner. Maintenance must be performed by the owner and certified to the city prior to each rainy season. The agreement must also include a right of entry on the part of the city for the purpose of inspecting and confirming the condition of the treatment control BMP, and to perform maintenance or repairs where operation and maintenance is not conducted in a proper or timely fashion.
C. The project applicant must provide for and submit proof of the ongoing long-term maintenance of all structural BMPs. The director may require that the terms, conditions and requirements imposed pursuant to this section be recorded with the Orange County clerk-recorder’s office by the property owner. The signature of the owner of the property or any successive owner is sufficient for the recording of these terms, conditions, and requirements and a signature on behalf of the city is not required for recordation.
D. Cost Recovery. The city must be reimbursed by the project applicant for all costs and expenses incurred by the city in the review of new development or significant redevelopment projects for compliance with the DAMP. The city may elect to require a deposit of estimated costs and expenses, and the actual costs and expenses will be deducted from the deposit, and the balance, if any, refunded to the project applicant. [Ord. 2018-203 § 1].
7.35.090 Inspections.
A. Right to Inspect. The authorized inspector has the authority to make an inspection to enforce the provisions of this chapter, and to ascertain whether the purposes of this chapter are being met. Except for annual inspections of high priority industrial facilities, prior to commencing any inspection as described in this section, the authorized inspector must obtain either the consent of the owner or person in charge of the day-to-day activities of the private property, or obtain an administrative inspection warrant or criminal search warrant.
B. Entry to Inspect. The authorized inspector may enter both public and private property to investigate the source of any discharge of a pollutant to any public street, inlet, gutter, storm drain, or the MS4 located within the jurisdiction of the city.
C. Compliance Assessments. The authorized inspector may inspect property for the purpose of verifying compliance with this chapter.
D. Portable Equipment. For purposes of verifying compliance with this chapter, the authorized inspector may inspect any vehicle, truck, trailer, tank truck, or other mobile equipment.
E. Records Review. The authorized inspector may inspect all records of the owner or person in charge of the day-to-day activities of private property relating to chemicals or processes presently or previously occurring on site, including material and/or chemical inventories, facilities maps or schematics and diagrams, material safety data sheets, hazardous waste manifests, business plans, pollution prevention plans, state general permits, stormwater pollution prevention plans, monitoring program plans, and any other record(s) relating to illicit connections, illicit discharges, prohibited discharges, a legal nonconforming connection, or any other source of discharge or potential discharge of pollutants to the MS4.
F. Sample and Test. The authorized inspector may inspect, sample, and test any area runoff, soils area (including groundwater testing), process discharge, materials within any waste storage area (including any contained contents), and/or treatment system discharge for the purpose of determining the potential for the discharge of pollutants to the stormwater drainage system. The authorized inspector may investigate the integrity of all storm drain and sanitary sewer systems, any legal nonconforming connection, or other pipelines on the private property using appropriate tests, including, but not limited to, smoke and dye tests or video surveys. The authorized inspector may take photographs or videotapes, make measurements or drawings, and create any other record reasonably necessary to document conditions on the property.
G. Monitoring. The authorized inspector may erect and maintain monitoring devices for the purpose of measuring any discharge or potential source of discharge to the MS4.
H. Cost Recovery. If an inspection pursuant to this section results in an enforcement action, the city may issue an invoice of costs and recover in an enforcement action its reasonable inspection costs. [Ord. 2018-203 § 1; Ord. 2010-128 § 1; Ord. 2010-126 § 1 (Exh. A); Ord. 2003-054 § 2; Ord. 2003-044 § 1 (4-13-60). Formerly 7.35.060].
7.35.100 Enforcement – Generally.
This chapter is enforced pursuant to the procedures set forth in the enforcement response plan, which is part of the LIP, and in accordance with Chapter 1.06 AVMC. The authorized inspector is authorized to take any administrative, civil, or criminal enforcement action set forth in this chapter or by any other means legally available. [Ord. 2018-203 § 1].
7.35.110 Administrative remedies.
A. Generally.
1. Any noncompliance with this chapter or order issued pursuant to this chapter must be corrected no later than 30 days after the violation is discovered, or prior to the next predicted rain event, whichever is sooner. If more than 30 calendar days are required to achieve compliance, the person subject to the administrative remedy must submit a detailed description of the reasons for the requested time extension. Delivery of any administrative enforcement action must occur in accordance with AVMC 7.35.120.
2. The authorized inspector may, as part of an administrative remedy pursuant to this chapter, require the owner or occupant to conduct any reporting, monitoring or sampling that the authorized inspector is otherwise authorized to conduct.
3. The authorized inspector may issue a compliance schedule in conjunction with any administrative remedy.
B. Notice of Noncompliance. The authorized inspector may deliver to the owner or occupant of any property, or to any person responsible for an illicit connection or prohibited discharge, a notice of noncompliance. The notice of noncompliance must identify the provision(s) of this chapter or the applicable permit which has been violated, describe the violation or deficiency to be corrected, and the corrective action required, list a compliance date by which the violation must be corrected, set a date for a follow-up inspection, if needed, and state that continued noncompliance may result in additional enforcement actions against the owner, occupant, and/or person.
C. Administrative Compliance Orders. In accordance with the city’s enforcement response plan, the authorized inspector may issue an administrative compliance order which includes the following terms and requirements:
1. Specific steps and time schedules for compliance as reasonably necessary to prevent the imminent threat of a prohibited discharge;
2. Specific steps and time schedules for compliance as reasonably necessary to discontinue any illicit connection;
3. Specific requirements for containment, cleanup, removal, storage, installation of overhead covering, or proper disposal of any pollutant having the potential to contact stormwater runoff;
4. Any other terms or requirements reasonably calculated to prevent the imminent threat of or continuing violations of this chapter, including, but not limited to, requirements for compliance with best management practices guidance documents promulgated by any federal, state of California or regional agency; and/or
5. Any other terms or requirements reasonably calculated to achieve full compliance with the terms, conditions, and requirements of any permit issued pursuant hereto.
D. Cease and Desist Orders. In accordance with the enforcement response plan, the authorized inspector may issue a cease and desist order to:
1. Immediately discontinue any illicit connection or prohibited discharge to the MS4;
2. Immediately contain or divert any flow of water off the property, where the flow is occurring in violation of any provision of this chapter;
3. Immediately discontinue any other violation of this chapter;
4. Clean up the area affected by the violation;
5. Direct the owner of any property or any permittee under any permit issued pursuant to this chapter to immediately cease any activity not in compliance with the terms, conditions, and requirements of the applicable permit.
E. Administrative Nuisance Abatement. Any condition in violation of the prohibitions of this chapter, including, but not limited to, the maintenance or use of any illicit connection or the occurrence of any prohibited discharge, constitutes a threat to the public health, safety and welfare, and is declared and deemed a nuisance pursuant to California Government Code Section 38771, and, except as otherwise provided in this chapter, may be abated in accordance with Chapter 1.06 AVMC, with costs of the abatement becoming a lien against the property where the nuisance originated.
F. Invoice for Costs. The authorized inspector may deliver to the owner or occupant of any property, any permittee or any other person who becomes subject to a notice of noncompliance or other administrative enforcement action, an invoice for costs documenting any and all costs incurred by the city in issuing the notice of noncompliance or other administrative order and directing payment to the city. An invoice for costs is immediately due and payable to the city for the actual costs incurred by the city in issuing and enforcing any notice or order. If any owner or occupant, permittee or any other person subject to an invoice for costs fails to either pay the invoice for costs or appeal successfully the invoice for costs in accordance with AVMC 7.35.120, then the enforcing attorney may institute collection proceedings.
G. Stop Work Order. In accordance with the enforcement response plan, the authorized inspector may issue an order identifying the provision(s) of this chapter or applicable permit or order that has been violated and directing any or all work or activities causing or contributing to the noted violation to immediately stop. A person ordered to stop any work or activity in accordance with this section must not restart the work or activity until the city has verified that corrective actions have been implemented and authorizes work or activities to resume.
H. Permit Revocation or Denial. In accordance with the enforcement response plan, the authorized inspector may suspend, revoke, or deny a permit, license, or other approval for a development project or deny future permits on the project in accordance with the hearing procedures set forth in AVMC 7.35.120.
I. Monetary Fines and Penalties. In accordance with the enforcement response plan, the authorized inspector may issue a monetary penalty or fine for any violation of this chapter or order or authorization issued pursuant to this chapter. Such fine or penalty is payable directly to the city. Monetary fines and penalties will be assessed in the amounts allowed by law, statute, resolution or ordinance of the city council or, where no amount is specified, in any of the following amounts: $100.00; $250.00; $500.00; $750.00; or $1,000 per violation, depending on the nature and severity of the violation. [Ord. 2018-203 § 1].
7.35.120 Procedures for administrative enforcement actions.
A. Delivery of Notice. Any administrative enforcement action issued pursuant to this chapter must be delivered as follows:
1. Delivery is deemed complete upon (a) personal service to the recipient; (b) deposit in the U.S. mail, postage prepaid for first class delivery; or (c) electronic service with confirmation of receipt.
2. Where the recipient of notice is the owner of the property, the address for notice is the address from the most recently issued equalized assessment roll for the property or as otherwise appears in the current records of the city.
3. Where the owner or occupant of any property cannot be located after the reasonable efforts of the authorized inspector, an administrative enforcement action is deemed delivered after posting on the property for a period of 10 business days.
B. Appeal and Administrative Hearing for Administrative Enforcement Actions.
1. Except as set forth in subsection (B)(3) of this section, any person subject to an administrative enforcement action may request an administrative hearing on the existence of the violations alleged in the enforcement action by filing a written request for an administrative hearing within seven calendar days after delivery of the enforcement action, accompanied by an administrative hearing fee as established by separate resolution, with the city clerk.
2. A hearing on the matter must be held before the hearing officer within 30 days of the date of filing of the written request unless, in the reasonable discretion of the hearing officer and pursuant to a written request by the appealing party, a continuance of the hearing is granted.
3. An administrative hearing on the existence of the violations alleged in a cease and desist order or an emergency abatement action must be requested within two days after issuance of and the hearing held within five business days following the issuance of the order or the action of abatement, unless the hearing (or the time requirement for the hearing) is waived in writing by the party subject to the cease and desist order or the emergency abatement.
C. Hearing Proceedings. The authorized inspector must appear in support of the administrative enforcement action and the appealing party must appear in support of withdrawal or modification of the action. Each party has the right to present testimony and other documentary evidence regarding the occurrence or existence of the alleged violation.
D. Final Decision and Appeal. The final decision of the hearing officer must issue within 10 business days after the conclusion of the hearing and be delivered by first class mail, postage prepaid, to the appealing party. The final decision must include notice that any legal challenge to the final decision will be made pursuant to the provisions of California Code of Civil Procedure Sections 1094.5 and 1094.6 and must be commenced within 90 days following issuance of the final decision. The administrative hearing fee paid by a prevailing party in an appeal must be refunded. Notwithstanding this subsection, the final decision of the hearing officer in any proceeding determining the validity of a cease and desist order or following an emergency abatement action must be mailed within five business days following the conclusion of the hearing.
E. City Abatement. In the event the owner of property, the operator of a facility, a permittee or any other person fails to comply with any provision of an administrative enforcement action, the authorized inspector may request the enforcing attorney to obtain an abatement warrant or other appropriate judicial authorization to enter the property, abate the condition and restore the area. Any costs incurred by the city in obtaining and carrying out an abatement warrant or other judicial authorization may be recovered pursuant to AVMC 7.35.110(F) or by any other means authorized by law. [Ord. 2018-203 § 1].
Cross-references: violations and penalties generally, Chapter 1.06 AVMC; appeal procedures generally, Chapter 1.10 AVMC.
7.35.130 Criminal enforcement.
A. Infractions. Any person who may otherwise be charged with a misdemeanor under this chapter may be charged, at the discretion of the enforcing attorney, with an infraction punishable by a fine of not more than $100.00 for a first violation, $200.00 for a second violation, and a fine not exceeding $500.00 for each additional violation occurring within one year.
B. Misdemeanors. Any person who negligently or knowingly violates any provision of this chapter, undertakes to conceal any violation of this chapter, continues any violation of this chapter after notice thereof, or violates the terms, conditions and requirements of any permit issued pursuant to this chapter, is guilty of a misdemeanor punishable by a fine of not more than $1,000 or by imprisonment for a period of not more than six months, or both. [Ord. 2018-203 § 1; Ord. 2010-128 § 1; Ord. 2010-126 § 1 (Exh. A); Ord. 2003-044 § 1 (4-13-72). Formerly 7.35.080].
Cross-reference: violations and penalties generally, Chapter 1.06 AVMC.
7.35.140 Citations.
A. Pursuant to California Penal Code Section 836.5, the authorized inspector has the authority to cause the arrest of any person committing a violation of this chapter. The person must be released and issued a citation to appear before a magistrate in accordance with California Penal Code Sections 853.5, 853.6, and 853.9, unless the person demands to be taken before a magistrate. Following issuance of any citation, the authorized inspector must refer the matter to the enforcing attorney.
B. Each citation to appear must state the name and address of the violator, the provisions of this chapter violated, and the time and place of appearance before the court, which must be at least 10 business days after the date of violation. The person cited must sign the citation giving his or her written promise to appear as stated therein. If the person cited fails to appear, the enforcing attorney may request issuance of a warrant for the arrest of the person cited. [Ord. 2018-203 § 1; Ord. 2010-128 § 1; Ord. 2010-126 § 1 (Exh. A); Ord. 2003-044 § 1 (4-13-75). Formerly 7.35.110].
7.35.150 Civil remedies.
A. Injunction. At the request of the director, the enforcing attorney may cause the filing in a court of competent jurisdiction of a civil action seeking an injunction against any threatened or continuing noncompliance with the provisions of this chapter.
B. Order for Reimbursement. Any temporary, preliminary or permanent injunction issued pursuant hereto may include an order for reimbursement to the city of all costs incurred in enforcing this chapter, including costs of inspection, investigation and monitoring, the costs of abatement undertaken at the expense of the city, costs relating to restoration of the environment and all other expenses as authorized by law.
C. Damages. The director may cause the enforcing attorney to file an action for civil damages in a court of competent jurisdiction seeking recovery of (1) all costs incurred in enforcement of this chapter, including but not limited to costs relating to investigation, sampling, monitoring, inspection, administrative expenses, all other expenses as authorized by law, and consequential damages, (2) all costs incurred in mitigating harm to the environment or reducing the threat to human health, and (3) damages for irreparable harm to the environment. The enforcing attorney is authorized to file actions for civil damages resulting from any trespass or nuisance occurring on public land or to the MS4 from any violation of this chapter where the same has caused damage, contamination or harm to the environment, public property or the MS4.
D. The remedies available to the city pursuant to the provisions of this chapter do not limit the right of the city to seek any other remedy that may be available by law. [Ord. 2018-203 § 1].
7.35.160 Consecutive violations.
Each day in which a violation occurs and each separate failure to comply with either a separate provision of this chapter, an administrative enforcement action, or a permit issued pursuant to this chapter constitutes a separate violation of this chapter. [Ord. 2018-203 § 1; Ord. 2010-128 § 1; Ord. 2010-126 § 1 (Exh. A); Ord. 2003-044 § 1 (4-13-73). Formerly 7.35.090].
7.35.170 Nonexclusive remedies.
Each and every remedy available for the enforcement of this chapter is nonexclusive and it is within the discretion of the authorized inspector or enforcing attorney to seek cumulative remedies, except that multiple monetary fines or penalties are not available for any single violation of this chapter. [Ord. 2018-203 § 1; Ord. 2010-128 § 1; Ord. 2010-126 § 1 (Exh. A); Ord. 2003-044 § 1 (4-13-74). Formerly 7.35.100].
7.35.180 Interagency coordination.
The city intends to cooperate with other agencies with jurisdiction over stormwater discharges to ensure that the regulatory purposes underlying stormwater regulations promulgated pursuant to the Clean Water Act (33 U.S.C. 1251 et seq.) are met. The city may, to the extent authorized by law, elect to contract for the services of any public agency or private enterprise to carry out the planning approvals, inspections, permits and enforcement authorized by this chapter. [Ord. 2018-203 § 1; Ord. 2010-128 § 1; Ord. 2010-126 § 1 (Exh. A); Ord. 2003-044 § 1 (4-13-90). Formerly 7.35.150].
7.35.190 Compliance disclaimer.
Full compliance by any person or entity with the provisions of this chapter does not preclude the need to comply with other local, state or federal statutory or regulatory requirements, which may be required for the control of the discharge of pollutants into stormwater and/or the protection of stormwater quality. [Ord. 2018-203 § 1; Ord. 2010-128 § 1; Ord. 2010-126 § 1 (Exh. A); Ord. 2003-044 § 1 (4-13-100(a)). Formerly 7.35.160].
7.35.200 Judicial review.
The provisions of California Code of Civil Procedure Sections 1094.5 and 1094.6 set forth the procedure for judicial review of any act taken pursuant to this chapter. Parties seeking judicial review of any action taken pursuant to this chapter must file such action within 90 days of the occurrence of the event for which review is sought. [Ord. 2018-203 § 1; Ord. 2010-128 § 1; Ord. 2010-126 § 1 (Exh. A); Ord. 2003-044 § 1 (4-13-110). Formerly 7.35.180].
7.35.210 Severability.
If any provision of this chapter or the application of this chapter to any circumstance is held invalid, the remainder of this chapter or the application of this chapter to other persons or circumstances must not be affected. [Ord. 2018-203 § 1; Ord. 2010-128 § 1; Ord. 2010-126 § 1 (Exh. A); Ord. 2003-044 § 1 (4-13-100(b)). Formerly 7.35.170].
Cross-references: storm drains, Chapter 7.40 AVMC; grading and excavation code, Chapter 13.08 AVMC; subdivision standards of design, Chapter 14.10 AVMC.