Chapter 15.70 STORM WATER

A. The intent of this chapter is to protect and enhance the water quality in the city of Benicia’s watercourses, water bodies, and wetlands in a manner pursuant to, and consistent with, the Porter-Cologne Water Quality Control Act (Water Code Section 13000 et seq.), the federal Clean Water Act (33 U.S.C. Section 1251 et seq.) and any subsequent revisions and amendments thereto, and with the goals of the city of Benicia general plan including:

Goal 2.38:	Protect water quality.
Goal 3.22:	Preserve water bodies.
Goal 3.24:	Protect watersheds.
Goal 4.12:	Accommodate runoff from existing and future development.
Goal 4.14:	Prevent ground and surface water contamination.

B. This chapter also carries out the conditions in the city’s Phase II small municipal separate storm sewer system (MS4) National Pollutant Discharge Elimination System (NPDES) permit, Water Quality Order No. 2013-0001-DWQ, General Permit No. CAS000004 (Phase II Storm Water Permit) and subsequent revisions and amendments thereto, that require, effective upon adoption of this chapter, implementation of appropriate measures to control pollutant discharges into and from the MS4 system.

C. It is the purpose of the city council in enacting this chapter to ensure the future health, safety, and general welfare of city of Benicia residents and acting in accordance with the precepts of the general plan by:

1. Detecting and eliminating non-storm water discharges and illegal connections to the municipal separate storm drain system.

2. Responding to and prohibiting the discharge to municipal separate storm drains from spills, dumping or disposal of materials other than storm water.

3. Reducing pollutants in storm water discharges to waters of the United States to the maximum extent practicable.

4. Complying with applicable state and federal laws.

5. Minimizing increases in nonpoint source pollution caused by storm water runoff from development that would otherwise degrade local water quality.

6. Reducing storm water runoff rates and volumes and nonpoint source pollution whenever possible, through storm water management controls and ensuring that these management controls are properly maintained and pose no threat to public safety. (Ord. 22-12 § 1).

15.70.020 Definitions.

The following words and phrases when used in this chapter shall be as defined herein. Words and phrases in this chapter and not otherwise defined shall be interpreted as defined in the regulations issued by the U.S. Environmental Protection Agency to implement the provisions of the Phase II storm water permit, the federal Clean Water Act, and as defined by the State Water Resources Control Board to implement the Porter-Cologne Act:

“Authorized enforcement official” or “authorized enforcement officer” is the city engineer and those individuals designated by the city engineer as authorized enforcement officials.

“BASMAA Post Construction Manual” means the most recent version of the Bay Area Storm Water Management Agencies (BASMAA) Post Construction Manual.

“Best management practices (BMPs)” are schedules of activities, prohibitions of practices, general good housekeeping practices, pollution prevention practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants directly or indirectly to the waters of the United States. BMPs also include treatment requirements, operating procedures, and practices to control site runoff, spillage or leaks, waste disposal, or drainage from raw material storage.

“City storm drain system” includes but is not limited to those facilities within the city by which storm water may be conveyed to waters of the United States, including any roads with drainage systems, municipal streets, drainage inlets, curbs, gutters, ditches, manmade open channels or culverts and pipes, which is not part of a publicly owned treatment works (POTW) as defined at 40 CFR Part 122.2.

“Construction activity” means any activity that involves soil disturbing activities including, but not limited to, clearing, grading, paving, disturbances to ground such as stockpiling, and excavation.

“Development runoff requirements” shall mean the provisions in the city’s storm water Phase II final rule that contain performance standards to address both construction and post-construction phase impacts of new projects and redevelopment projects on storm water quality.

“Discharge” or “discharge of a pollutant” is (1) the addition of any pollutant or combination of pollutants to waters of the United States from any point source, or (2) any addition of any pollutant or combination of pollutants to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft, which is being used as a means of transportation. The term includes additions of pollutants to waters of the United States from: surface runoff which is collected or channeled by man; discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other person which do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works.

“Erosion and sediment control plan (ESCP)” means a plan prepared to control erosion and prevent the discharge of sediment and construction materials from a construction site.

“Illicit connection” is any device or method that conveys non-storm water to a municipal separate storm sewer (storm drain) system (MS4) or receiving water.

“Illicit discharge” is any discharge to an MS4 that is prohibited under local, state, or federal statutes, ordinances, codes, or regulations. The term “illicit discharge” includes all non-storm water discharges not composed entirely of storm water and discharges that are identified under the discharge of pollutants section of this chapter (BMC 15.70.060). The term “illicit discharge” does not include discharges that are regulated by an NPDES permit.

“Incidental irrigation runoff” means unintended amounts (volume) of runoff, such as unintended, minimal overspray from sprinklers that escapes the landscaped area of intended use. Water leaving an intended use area is not considered incidental if it is part of the facility design, if it is due to excessive application, if it is due to intentional overflow or application, or if it is due to negligence.

“Low impact development (LID)” means a sustainable practice that benefits water supply and contributes to water quality protection. LID uses site design and storm water management to maintain the site’s predevelopment runoff rates and volumes. The goal of LID is to mimic a site’s predevelopment hydrology by using design techniques that infiltrate, filter, store, evaporate, and detain runoff close to the source of rainfall.

“Non-storm water discharge” is any discharge to a storm sewer system that is not composed entirely of storm water.

“NPDES permit” is a National Pollutant Discharge Elimination System (NPDES) permit issued by the United States Environmental Protection Agency, the State Water Resources Control Board, or a California Regional Water Quality Control Board pursuant to the Clean Water Act that authorizes discharges to waters of the United States.

“Permit registration documents (PRDs)” are the application materials required by the State Water Resources Control Board that include a notice of intent to comply with the terms of the general permit to discharge storm water associated with construction and ground disturbing activities (Order No. 2009-0009-DWQ as amended, General Permit No. CAS000002) or the general permit to discharge storm water associated with industrial activities (Order No. 2014-057-DWQ, General Permit No. CAS000001).

“Phase II storm water permit” is the NPDES general storm water permit applicable to the city of Benicia, Water Quality Order No. 2013-0001-DWQ, General Permit No. CAS000004, and any subsequent amendment, reissuance, or successor to this NPDES permit.

“Pollutant” is any material other than storm water including, but not limited to, petroleum products or byproducts, acidity, dredged or excavated soil, solid waste, incinerator residue, filter backwash, sewage, pet wastes, manure, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, sediment, cellar dirt, concrete, debris, dumped yard wastes, and industrial, municipal, and agricultural waste; temperature, wrecked or discarded equipment, rock, sand, soil and industrial, municipal or agricultural waste discharged into the water or storm water system, that is discharged to or placed in such a way as to be carried away by storm water into the storm drains and watercourses of the city.

“Post-construction measure requirements” are the provisions in Section E.12 of the Phase II storm water permit that contain design standards or performance criteria to address the post-construction phase impacts of new projects and redeveloped projects on storm water quality and quantity.

“Premises” are any building, lot, parcel, real estate, or land or portion of land whether improved or unimproved including adjacent sidewalks and parking strips.

“Responsible person” shall mean the owner or occupant of any premises or who engages in any activity from which there is or may be a non-storm water discharge or any person who releases pollutants to the city’s storm water system.

“Storm drain system” or “storm drain” includes but is not limited to those storm water drainage conveyance facilities within the city by which storm water may be conveyed to waters of the United States, including any roads with drainage systems, municipal streets, catch basins, drainage inlets, curbs, gutters, ditches, creeks, manmade open channels or culverts and pipes, which is not part of a publicly owned treatment works (POTW) as defined in the Code of Federal Regulations (at 40 CFR Part 122.2).

“Storm water” means storm water runoff, surface runoff and drainage. It excludes infiltration and runoff from agricultural land.

“Storm water control plan” means a plan that meets the criteria contained in the most recent version of the BASMAA Post Construction Manual.

“Storm water facilities operation and maintenance plan” is a plan identifying the locations and characteristics of storm water management facilities on a newly developed or redeveloped site and describing maintenance activities, schedules, and responsibilities to ensure the ongoing proper operation of those facilities.

“Storm water management facility” is any device designated to detain, retain, filter, or infiltrate storm water.

“Storm water pollution prevention plan (SWPPP)” is a plan to identify sources of sediment and other pollutants that affect the quality of storm water discharges and describes and ensures the implementation of practices to reduce sediment and other pollutants in storm water discharges.

“Watercourse” is any channel, ditch, drainage swale, closed pipe system, whether manmade or natural, that collects and transports runoff.

“Waters of the United States” are all waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide as defined in 33 CFR Part 328. (Ord. 22-12 § 1).

15.70.030 Responsibility for administration.

This chapter shall be administered for the city by the city engineer. In administering this chapter, the city engineer has the authority to request and require the submittal of information deemed necessary to assess compliance with this chapter and the Phase II storm water permit. (Ord. 22-12 § 1).

15.70.040 Construction and application.

This chapter shall be construed to assure consistency with the requirements of the federal Clean Water Act and acts amendatory thereof or supplementary thereto, and applicable implementing regulations. Every application for a development project, including but not limited to a rezoning, tentative map, parcel map, conditional use permit, variance, site development permit, design review, or building permit is subject to the development runoff requirements in the city’s NPDES permit and shall be accompanied by a storm water control plan that meets the most recent version of the BASMAA Post Construction Manual. (Ord. 22-12 § 1).

15.70.050 Taking.

The provisions of this chapter shall not operate to deprive any landowner of substantially all of the market value of his/her property or otherwise constitute an unconstitutional taking without compensation. If application of this chapter to a specific project would create a taking, then pursuant to this chapter the city council may allow additional land uses, but only to the extent necessary to avoid a taking. Such uses shall be consistent with and carry out the purposes of this chapter as stated in BMC 15.70.010. (Ord. 22-12 § 1).

15.70.060 Discharge of pollutants.

A. The discharge of non-storm water discharges to the city storm drain system is prohibited. All discharges of material other than storm water must be in compliance with this chapter, state and federal regulations and authorized by the city engineer.

B. The discharge of storm water from premises or an activity that causes or contributes to a violation of receiving water limitations in the city’s NPDES permit is prohibited.

C. Exceptions to Discharge Prohibition. The following discharges are exempt from the prohibition set forth in subsection (A) of this section:

1. Discharges regulated under a National Pollutant Discharge Elimination System (NPDES) permit (other than the Phase II storm water permit) issued to the discharger and administered by the state of California under authority of the United States Environmental Protection Agency; provided, that the discharger is in full compliance with all requirements of the permit and other applicable laws or regulations.

2. Discharges or flows from fire-fighting activities unless they are identified as significant sources of pollutants to waters of the United States.

3. Discharges from the following activities, provided any pollutants in the discharges are identified and appropriate control measures to minimize the impacts of such discharges are developed and implemented:

a. Water line flushing and other discharges from potable water sources;

b. Incidental irrigation runoff from landscaped areas provided the conditions in subsection (C)(4) of this section are met;

c. Diverted stream flows;

d. Rising ground waters;

e. Infiltration to separate storm drains;

f. Uncontaminated pumped ground water (as defined at 40 CFR 35.2005(20)) to separate storm sewers;

g. Foundation and footing drains;

h. Water from crawl space pumps;

i. Air conditioning condensation;

j. Natural springs;

k. Individual residential car washing;

l. Flows from riparian habitats and wetlands; and

m. Dechlorinated swimming pool discharges.

4. Irrigation systems must be designed to conserve water and prevent water leaving the area of application. Persons responsible for controlling irrigation systems shall prevent excessive irrigation runoff by:

a. Detecting and correcting leaks from the irrigation system within 72 hours of discovering the leak;

b. Properly designing and aiming sprinkler heads to only irrigate the planned application area;

c. Not irrigating during precipitation events; and

d. Where recycled water is used for irrigation, designing and managing holding ponds such that no discharge occurs unless it is the result of the 25-year, 24-hour storm event. Any releases from holding ponds must be reported to the Regional Water Board and the city of Benicia within 24 hours of the discharge. (Ord. 22-12 § 1).

15.70.070 Discharge in violation of permit.

Any discharge that would result in a contribution to a violation of the Phase II storm water permit, either separately considered or when combined with other discharge, is prohibited. Any non-storm water discharge not within the confines of this chapter and/or not approved by the city engineer is prohibited. Liability for any such discharge shall be the responsibility of the person(s) causing or responsible for the discharge, and such persons shall defend, indemnify, and hold harmless the city in any administrative or judicial enforcement action relating to such discharge. (Ord. 22-12 § 1).

15.70.080 Illicit discharge and illicit connections.

A. It is prohibited to establish, use, maintain, or continue illicit drainage connections to the city storm water system or watercourse, and to commence or continue any illicit discharges to the city storm water system or watercourse. This prohibition is expressly retroactive and applies to connections made in the past, regardless of whether made under a permit or other authorization or whether permissible under the law or practices applicable or prevailing at the time of the connection.

B. Any person responsible for a discharge, spill, or pollutant release shall promptly cease and desist discharging, and/or clean up and abate such a discharge as directed by the city engineer.

C. Any person found to be in violation of this section or found to be responsible for an illicit connection shall promptly remove the illicit drainage or connection in a manner acceptable to and approved by the city.

D. No discharge shall cause the following conditions, create a nuisance, or adversely affect beneficial uses of waters of the state:

1. Floating, suspended or deposited macroscopic matter or foam;

2. Bottom deposits or aquatic growth;

3. Alterations of temperature, sediment load, nutrient load, or dissolved oxygen, which cause significant adverse impacts to native aquatic biota;

4. Visible, floating, suspended or deposited oil or products of petroleum origin; or

5. Substances present in concentrations or quantities which cause deleterious effects on aquatic biota, wildlife, or waterfowl, or which render any of these unfit for human consumption.

E. The city may perform cleanup and abatement work and recover its costs from the responsible person as provided in BMC 15.70.200. (Ord. 22-12 § 1).

15.70.090 Best management practices and standards.

Any person engaged in activities that will or may result in pollutants entering the city storm drain system shall undertake all practicable measures to cease such activities, and/or eliminate or reduce such pollutants. Such activities shall include, but not be limited to, ownership and use of parking lots, gasoline stations, industrial facilities, commercial facilities, ground disturbing activities, and stores fronting city streets. The following minimal requirements shall apply:

A. Littering. Except for pollutants lawfully disposed of by way of containers or in lawfully established dumping grounds, no person shall throw, deposit, leave, maintain, keep, or permit to be thrown, deposited, placed, left or maintained, any refuse, rubbish, garbage, or other discarded or abandoned objects, articles, and accumulations, in or upon any street, alley, sidewalk, storm drain, inlet, drain inlet, conduit or other drainage structures, business place, or upon any public or private lot of land in the city, in any fountain, pond, lake, stream or any other body of water in a park or elsewhere within the city, so that the same might be or become a pollutant.

B. Sidewalks. The occupant or tenant, or in the absence of occupant or tenant, the owner, lessee, or proprietor of any real property in the city of Benicia in front of which there is a paved sidewalk shall maintain said sidewalk free of dirt or litter to the maximum extent practicable. Sweepings from said sidewalk shall not be swept or otherwise made or allowed to go into the gutter or roadway but shall be disposed of in receptacles maintained on said real property as required for the disposal of garbage, trash or green waste.

C. Standard for Parking Lots and Similar Uses. Persons owning or operating private streets, a parking lot, gas station pavement or similar structure shall clean those structures as frequently and thoroughly as practicable in a manner that does not result in discharge of pollutants to the city storm water system.

D. Best Management Practices for Construction and Ground Disturbing Activities.

1. Any person performing construction activities in the city shall use the best available technology (BAT) and the best conventional technology (BCT). Any person performing construction activities shall implement appropriate BMPs consistent with the California Stormwater Quality Association BMPs or equivalent to prevent the discharge of construction wastes or contaminants from construction materials, tools, and equipment from entering the storm drain system or watercourse.

2. Construction-phase BMPs include erosion and sediment controls and pollution prevention practices.

a. Erosion control BMPs may include, but are not limited to:

i. Scheduling and timing of grading activities;

ii. Preservation of existing vegetation;

iii. Timely revegetation of graded areas;

iv. The use of hydroseed and hydraulic mulches;

v. Soil binders;

vi. Earth dike and drainage swales;

vii. Velocity dissipation devices;

viii. Slope drains;

ix. Installation of erosion control blankets;

x. Soil preparation – roughening;

xi. Wind erosion control.

b. Sediment control BMPs may include, but are not limited to:

i. Properly sized detention basins, dams, or filters to reduce entry of suspended sediment into the storm drain system and watercourses;

ii. Installation of construction entrances to prevent tracking of sediment onto adjacent streets;

iii. Biofilter bags;

iv. Sandbag barrier;

v. Storm drain inlet protection;

vi. Entrance outlet tire wash;

vii. Street sweeping to remove tracked sediment.

c. Pollution prevention practices may include, but are not limited to:

i. Designated concrete washout areas or facilities;

ii. Control of trash and recycled materials;

iii. Tarping of materials stored on site;

iv. Proper location of and maintenance of temporary sanitary facilities.

The combination of BMPs used, and their execution in the field, must be customized to the site using up-to-date standards and practices.

3. Financial security may be required to ensure that temporary measures to control storm water pollution are implemented and maintained during construction and after construction for a period determined by the city. Financial security shall consist of an irrevocable letter of credit, cash deposit, or performance bond as determined by the agency.

4. When any work is being done contrary to the provisions of this chapter, the city engineer may order the work stopped by notice in writing served on any persons engaged in doing or causing the work to be done. Such work shall stop until the authorized enforcement official authorizes the work to proceed. This remedy is in addition to, and does not supersede or limit, any and all other remedies, both civil and criminal, provided in the city of Benicia Municipal Code.

5. The city has the authority to review designs and proposals for construction activities and new development and redevelopment sites to determine whether adequate BMPs will be installed, implemented, and maintained during construction and after final stabilization (post-construction).

6. All construction plans and applications for construction activity submitted to the city shall consider the potential for erosion and sedimentation at the construction site and shall include appropriate erosion and sedimentation controls.

7. Erosion and Sediment Control Plan Requirements.

a. An erosion and sediment control plan (ESCP) shall be required for:

i. Any project subject to a grading permit under Chapter 15.73 BMC, Grading and Erosion Control;

ii. Any project subject to a building permit or other permit that has the potential for significant erosion and/or significant non-storm water discharges of sediment and/or construction site waste;

iii. Any other project, as required by the authorized enforcement official, considering factors such as whether the project involves hillside soil disturbance, rainy season construction, construction near a creek or an intermittent or ephemeral drainage way, or any other condition or construction site activity that could lead to a non-storm water discharge to a storm drain if not managed by effective implementation of an ESCP.

b. The ESCP shall be submitted for review and approval by the authorized enforcement official. The project applicant shall follow guidance issued by the city engineer in preparing the ESCP. At a minimum, the ESCP shall include:

i. D7escription of the proposed project and soil disturbing activity;

ii. Site-specific construction-phase BMPs;

iii. Rationale for selecting the BMPs, including, if needed, soil loss calculations;

iv. List of applicable permits associated with the soil disturbing activity, such as: the state’s construction general permit (CGP); Clean Water Act Section 404 Permit; Clean Water Act Section 401 Water Quality Certification; streambed/lake alteration agreement (1600 Agreements);

v. Proof that the applicant has obtained the applicable permits associated with the soil disturbing activity that must be submitted prior to approval of the ESCP; and

vi. Project information including but not limited to:

(A) Owner and contractor contact information;

(B) Site information (location, status, size of project, size of disturbed area);

(D) Planned start date and anticipated completion date.

c. For projects subject to the state’s general construction permit (CGP), project applicants may submit a storm water pollution prevention plan (SWPPP) developed pursuant to the CGP in lieu of submitting an ESCP.

d. Implementation of an approved ESCP shall be a condition of the issuance of a building permit, a grading permit, or other permit issued by the city for a project subject to this section. The ESCP shall be implemented year-round and must be updated to reflect changing conditions on the project site. Any modifications to the ESCP shall be submitted to the city for review and approval.

E. Best Management Practices for New Development and Redevelopment.

1. Prior to and/or during construction, the authorized enforcement official may establish controls on the volume and rate of storm water runoff from new developments and redevelopment as may be appropriate to minimize peak flows or total runoff volume, and to mimic the predevelopment site hydrology. These controls may include limits on impervious area or provisions for detention and retention of runoff on site.

2. The authorized enforcement official may require, as a condition of project approval, permanent structural controls designed for the removal of sediment and other pollutants, and for control on the volume and rate of storm water runoff from the project’s added or replaced impervious surfaces. The selection and design of such controls shall be in accordance with criteria established or recommended by federal, state, and local agencies, and, where required, the BASMAA Post Construction Manual. Where physical and safety conditions allow, the preferred control measure is to retain drainage ways above ground and in as natural a state as possible, or by other biological methods such as bioretention areas.

3. Storm Water Control Plan Requirements.

a. For each new development and redevelopment project subject to post-construction measure requirements, or where required by the nature and extent of a proposed project and where deemed appropriate by the city, every applicant shall submit a storm water control plan (SCP) that meets the criteria in the most recent version of the BASMAA Post Construction Manual.

i. Applicable new development and redevelopment projects subject to post-construction measures include:

(A) Small Projects. Projects that create or replace between 2,500 and 5,000 square feet of impervious area, excluding linear underground/overhead utility projects.

(B) Regulated Projects. Projects that create or replace greater than or equal to 5,000 square feet of impervious area, excluding: detached single-family residences that are not part of a common plan of development; interior remodels; routine maintenance or repair; linear underground/overhead utility projects unless the project has a discrete location that has 5,000 square feet or more of newly constructed contiguous impervious area.

(C) Full Hydromodification Projects. Regulated projects that create or replace greater than or equal to one acre of impervious area, with a net increase in impervious area.

b. Applicants shall implement the controls identified in the SCP and required by the conditions of approval that reduce storm water pollutant discharges through the construction, operation and maintenance of source control measures, low impact development design, site design measures, storm water treatment measures and hydromodification management measures. Increases in runoff shall be managed in accordance with the post-construction measures requirements.

c. The SCP is separate and distinct from the ESCP requirements described in subsection (D) of this section.

d. Where projects are required to have an SCP, project applicants shall follow the appropriate SCP template, based on the project type, in the BASMAA Post Construction Manual.

e. Implementation of an approved SCP and submittal of an approved storm water facilities operation and maintenance plan by the applicant shall be a condition precedent to the issuance of a building permit or another city-issued permit for a project subject to this section.

f. Financial security may be required to ensure that storm water management facilities operate and are maintained following construction for a period which may be determined by the city. Financial security shall consist of an irrevocable letter of credit, cash deposit, or performance bond as determined by the city.

g. When any work is being done contrary to the provisions of this chapter, the authorized enforcement official may order the work stopped by notice in writing served on any persons engaged in doing or causing the work to be done. Such work shall stop until the city engineer authorizes the work to proceed. This remedy is in addition to and does not supersede or limit any and all other remedies, both civil and criminal, provided in the BMC.

h. All storm water management facilities shall be designed in a manner to minimize the need for maintenance and reduce the chances of failure. Design guidelines are outlined in the BASMAA Post Construction Manual.

i. All storm water management facilities shall be maintained according to the approved storm water facilities operation and maintenance plan. The person(s) or organization(s) responsible for maintenance shall be designated in the plan. Unless a different time period is provided for in the plan, those responsible for maintenance shall inspect the storm water management facilities at least annually and submit a written report of the inspection to the city engineer. The storm water facilities operation and maintenance plan shall describe how the maintenance costs will be funded. If the responsible person fails to maintain the storm water management facilities in accordance with this chapter or the plan, the city may perform the maintenance and recover its costs from the responsible person as provided in BMC 15.70.200.

j. For each new development and redevelopment project subject to the post-construction measures requirements, or where deemed appropriate by the city, access by the city to storm water management facilities for inspections, as provided in BMC 15.70.200, and through such means as may be appropriate, including, but not limited to, legal agreements, recorded covenants or easements, shall be provided by the property owner.

k. All project proponents and their successors, or successors in fee title, in control of a new development and redevelopment project subject to the post-construction measures requirements, shall submit one of the following as a condition prior to final inspection and approval of building permit closure:

i. The project proponent’s signed statement accepting responsibility for the operations and maintenance of storm water management facilities until such responsibility is legally transferred to another entity;

ii. Written conditions in the sales or lease agreements or deed for the project that requires the buyer or lessee to assume responsibility for the operations and maintenance of the storm water management facilities until such responsibility is legally transferred to another entity;

iii. Written text in project deeds, or conditions, covenants and restrictions for multi-unit residential projects that require the homeowners’ association or, if there is no association, each individual owner, to assume responsibility for the operation and maintenance of the storm water management facilities until such responsibility is legally transferred to another entity; or

iv. Any other legally enforceable agreement or mechanism, such as recordation in the property deed, that assigns the operation and maintenance of the storm water management facilities to the project owner(s).

F. Notification of Intent and Compliance with General Permits. Each industrial discharger, discharger associated with construction activity, or other discharger, described in any general storm water permit addressing such discharges, as may be adopted by the United States Environmental Protection Agency, the State Water Resources Control Board, or the California Regional Water Quality Control Board, San Francisco Bay Region, shall provide notice of intent, comply with, and undertake all other activities required by any general storm water permit applicable to such discharges.

Each discharger identified in an individual NPDES permit relating to storm water discharges shall comply with and undertake all activities required by such permit.

G. Compliance with Best Management Practices. Where best management practices, guidelines or requirements have been adopted by any federal, state of California, and/or regional agency, or by the city, for any activity, operation, or facility that may cause or contribute to storm water pollution or contamination, illicit discharges, and/or discharge of non-storm water to the storm drain system, every person undertaking such activity or operation, or owning or operating such facility, shall comply with such guidelines or requirements as may be identified by the city engineer.

H. Storm Water Pollution Prevention Plan. The city engineer may require any business or utility in the city that is engaged in activities which may result in any discharges, lawful or otherwise, to develop and implement a storm water pollution prevention plan (SWPPP), which must include maintenance, storage, manufacturing, assembly, equipment storage, vehicle loading, fueling, vehicle maintenance, food handling or processing or cleanup procedure that is carried out partially or wholly out of doors.

I. Coordination with Hazardous Materials Release Response and Inventory Plans. Any business subject to hazardous material release response and inventory plan, Division 20, Chapter 6.95 of the California Health and Safety Code (commencing with Section 25500), shall include, in that plan, provision for compliance with this chapter, including the prohibition of non-storm water discharges and the requirement to reduce release of pollutants to the maximum extent practicable. (Ord. 22-12 § 1).

15.70.100 Tourtelot cleanup project.

The Tourtelot cleanup project area consists of approximately 220 acres of the former Benicia Arsenal, north of Rose Drive and west of East 2nd Street. The site was used from 1944 to 1960 as part of the Benicia Arsenal. The site was known to contain ordnance and explosives and has been subject to a cleanup project. Because of various methods of detection and cleanup used on the site, areas of the site are subject to specific controls. Some areas are under the restriction of filing a plan for any work below grade. Other areas of the site also require the submittal of approved procedures prepared by a licensed engineer and observed by representatives of the State of California Division of Toxic Substances Control. No new discharges of any type or alteration of any existing discharge are allowed into the Tourtelot site without compliance with restrictions contained in the Tourtelot site contingency action plans and the operation and maintenance plan which are further cited in Chapter 15.73 BMC, Grading and Erosion Control. (Ord. 22-12 § 1).

15.70.110 Watercourse protection.

A. Every person owning property through which a watercourse passes, or such person’s lessee or tenant, shall keep and maintain that part of the watercourse within the property reasonably free of trash, debris, excessive vegetation, and other obstacles which would pollute, contaminate, or significantly retard the flow of water through the watercourse; shall maintain existing privately owned structures within or adjacent to a watercourse, so that such structures will not become a hazard to the use, function, or physical integrity of the watercourse; and shall not remove healthy bank vegetation beyond that actually necessary for maintenance, and not remove vegetation in such a manner as to increase the vulnerability of the watercourse to erosion.

B. No person shall commit or cause to be committed any of the following acts, unless a written permit has first been obtained from the city engineer:

1. Discharge into or connect any pipe or channel to a watercourse;

2. Modify the natural flow of water in a watercourse;

3. Carry out development within the greater of 30 feet of the center line of any creek or 25 feet of the top of a bank wherein the “top of bank” is defined as the flatter of the actual top of bank or a projected top of bank from the toe of slope at two horizontal to one vertical bank slope;

4. Deposit in, plant in, or remove any material from a watercourse including its banks, except as required for necessary maintenance;

5. Construct, alter, enlarge, connect to, change, or remove any structure in a watercourse; or

6. Place any loose or unconsolidated material along the side of or within a watercourse or so close to the side as to cause a diversion of the flow, or to cause a probability of such material being carried away by storm water passing through such watercourse. (Ord. 22-12 § 1).

15.70.120 Authority to inspect.

A. Whenever necessary to make an inspection to enforce any of the provisions of this chapter, or whenever an authorized enforcement official has reasonable cause to believe that there exists in any building or upon any premises any condition which constitutes a violation of the provisions of this chapter, the enforcement official has the duty and the responsibility to inspect any and all locations for any violation of the provisions of this chapter. The authorized enforcement official may, within the limitations of applicable state and federal laws, enter any such building or any premises (including, but not limited to, facilities, equipment, practices, or operations) at all reasonable times to inspect the same for any or all of the following situations, as determined by the authorized enforcement official:

1. Routine inspections to ensure implementation of BMPs and other requirements of this chapter;

2. Active or potential storm water discharges;

3. Whenever there is reasonable cause to believe that there exists any condition which constitutes a violation of the provisions of this chapter or the Phase II storm water permit;

4. Actual violations of this chapter or the Phase II storm water permit;

5. Whenever necessary to enforce any of the provisions of this chapter or the Phase II storm water permit; or

6. To perform any duty imposed upon the official by this chapter.

B. Prior to entry for inspections, the authorized enforcement official shall comply with the following: (1) If the building or premises is occupied, the enforcement official shall first present proper credentials and request entry; (2) if the building or premises is unoccupied, the enforcement official shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and request entry. Any such request for entry shall state that the property owner or occupant has the right to refuse entry and that in the event such entry is refused, inspection may be made only upon issuance of a search warrant by a duly authorized magistrate. In the event the owner and/or occupant refuses entry after such request has been made, the official is hereby empowered to seek assistance from any court of competent jurisdiction in obtaining such entry.

C. The authorized enforcement official has the right to and shall conduct routine sampling and monitoring on, or adjacent to, the premises under review. Routine or area inspections shall be based upon such reasonable selection processes as may be deemed necessary to carry out the objectives of this chapter, including but not limited to random sampling and/or sampling in areas with evidence of storm water contamination, illicit discharges, discharge of non-storm water to the storm sewer system, or similar factors. The cost of such routine sampling and/or monitoring activities, including test reports and results, shall be borne by the city. The authorized enforcement official may, within the limitations of law, enter such premises at reasonable times to conduct sampling and monitoring operations; provided, that the official presents proper credentials to and obtains consent from the owner or occupant to enter. In the event the owner and/or occupant refuses entry, the official shall request assistance of the city attorney to obtain an administrative warrant to enter the premises, pursuant to the provisions of state law.

D. Authority to Sample and Establish Sampling Devices. The city shall have the right to establish on any property such devices as are necessary to conduct sampling or metering operations. During all inspections as provided herein, the official may take any samples deemed necessary to aid in the pursuit of the inquiry or in the recordation of the activities on site.

E. Notification of Spills. All persons in charge of a facility or responsible for emergency response for a facility have a responsibility to train facility personnel and maintain notification procedures to ensure that immediate notification is provided to the city of any suspected, confirmed, or unconfirmed release of material, pollutants or waste creating a risk of discharge into the city storm water system.

F. As soon as any person in charge of a facility or responsible for emergency response for a facility has knowledge of any confirmed or unconfirmed release of materials, pollutants or waste that may result in pollutants or non-storm water discharges entering the city storm water system, such person shall take all necessary steps to ensure the discovery and containment and cleanup of such release and shall notify the city of the occurrence by telephoning the city engineer during normal business hours and confirming the notification by correspondence. Outside of normal business hours, telephone notice shall be made to the Benicia fire department.

G. The city will identify, document, and respond to pretreatment violations in accordance with its enforcement response plan.

H. Requirement to Test or Monitor. Any authorized enforcement official may request that any person engaged in any activity and/or owning or operating any facility which may cause or contribute to storm water pollution or contamination, illicit discharges, and/or discharge of non-storm water to the storm water system, undertake such monitoring activities and/or analyses and furnish such reports as the official may specify. The burden and cost of undertaking such sampling and monitoring activities, including test results and reports, shall be borne by the owner of the premises under review. The type and method of sampling and monitoring shall bear a reasonable relationship to the need for testing and monitoring and to the benefits to be obtained, as determined by the enforcement official.

I. Exigent Circumstances. Whenever a condition is found to exist in violation of this chapter that presents an immediate and present danger to the public health, safety and welfare requiring immediate remedial action to prevent injury to persons or property, the authorized enforcement official shall take whatever reasonable and appropriate action is necessary to neutralize the danger, including but not limited to entry upon private premises for inspection, sampling and monitoring, and abatement. (Ord. 22-12 § 1).

15.70.130 Violations constituting misdemeanors.

The violation of any provision of this chapter, or failure to comply with any of the mandatory requirements of this chapter, shall constitute a misdemeanor. However, any such violation constituting a misdemeanor under this chapter may, in the discretion of the city attorney, be charged and prosecuted as an infraction. (Ord. 22-12 § 1).

15.70.140 Penalty for violation.

Upon conviction of a misdemeanor, a person shall be subject to payment of a fine, or imprisonment, or both, not to exceed the limits set forth in California Government Code Section 36901.

Upon conviction of an infraction, a person shall be subject to payment of a fine, not to exceed the limits set forth in California Government Code Section 36900. After a third conviction for a violation of the same provision, subsequent violations within a 12-month period may be charged as a misdemeanor. (Ord. 22-12 § 1).

15.70.150 Continuing violation.

Unless otherwise provided, a person, firm, corporation, or organization shall be deemed guilty of a separate offense for each and every day during any portion of which a violation of this chapter is committed, continued or permitted by the person, firm, corporation or organization and shall be punishable accordingly as herein provided. (Ord. 22-12 § 1).

15.70.160 Concealment.

Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall constitute a violation of such provision. (Ord. 22-12 § 1).

15.70.170 Acts potentially resulting in violation of federal Clean Water Act and/or Porter-Cologne Act.

Any person who violates any provision of this chapter, any provision of any permit issued pursuant to this chapter, or who discharges waste or wastewater which causes pollution, or who violates any cease and desist order, prohibition, or effluent limitation, may also be in violation of the federal Clean Water Act, the Porter-Cologne Act, and/or the Phase II storm water permit, and may be subject to the sanctions of those Acts including civil and criminal penalty. Any enforcement action authorized under this chapter should also include notice to the violator of such potential liability. (Ord. 22-12 § 1).

15.70.180 Violations deemed a public nuisance.

In addition to the penalties hereinbefore provided, any condition caused or permitted to exist in violation of any of the provisions of this chapter is a threat to the public health, safety and welfare, and is hereby declared and deemed a public nuisance, and may be summarily abated and original conditions restored by any authorized enforcement official, and/or by a civil action to abate, enjoin or otherwise compel the cessation of such nuisance brought by the city attorney.

The cost of such abatement and restoration shall be borne by the owner of the property and the cost thereof shall be a lien upon and against the property and such lien shall continue in existence until the same shall be paid. If the lien is not satisfied by the owner of the property within three months after the completion by the authorized enforcement official of the removal of the nuisance and the restoration of the property to its original condition, the property may be sold in satisfaction thereof in a like manner as other real property is sold under execution.

If any violation of this chapter constitutes a seasonal and recurrent nuisance, the city council shall so declare. Thereafter such seasonal and recurrent nuisance shall be abated every year without the necessity of any further hearing. (Ord. 22-12 § 1).

15.70.190 California Code of Civil Procedure Section 1094.6.

The provisions of Section 1094.6 of the California Code of Civil Procedure are applicable to judicial review of city decisions pursuant to this chapter. (Ord. 22-12 § 1).

15.70.200 Civil actions.

In addition to any other enforcement powers and/or remedies provided in this chapter, any violation of this chapter may be enforced by civil action brought by the city. In any such action, the city may seek, and the court shall grant, as appropriate, any or all of the following remedies:

A. A temporary and/or permanent injunction;

B. An action for an unlawful business practice pursuant to Business and Professions Code Section 17206;

C. Assessment of the violator for the costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and bringing legal action under this subsection;

D. Costs incurred in removing, correcting, or terminating the adverse effects resulting from the violation;

E. Compensatory damages for loss or destruction to water quality, wildlife, fish, and aquatic life. Assessments under this subsection shall be paid to the city to be used exclusively for costs associated with monitoring and establishing storm water discharge pollution control systems and/or implementing or enforcing the provisions of this chapter;

F. The cost of maintenance and repair of any BMP or storm water management facility that is not maintained in accordance with the guidebook or the storm water control plan. (Ord. 22-12 § 1).

15.70.210 Administrative enforcement powers.

In addition to the other enforcement powers and remedies established by this chapter, any authorized enforcement official has the authority to utilize the following administrative remedies:

A. Cease and Desist Orders. When an authorized enforcement official finds that a discharge has taken place or is likely to take place in violation of this chapter, the official may issue an order to cease and desist such discharge, practice, or operation likely to cause such discharge and direct that those persons not complying: (1) comply with the requirement, (2) comply with a time schedule for compliance, and/or (3) take appropriate remedial or preventive action to prevent the violation from recurring. Upon the violator’s failure to comply with such order, the city shall take further enforcement action as specified in this chapter, or in accordance with other appropriate provisions of local, state, or federal law. At the discretion of the authorized enforcement official, orders to cease and desist may take the following form:

1. Verbal warnings, as may be issued during inspections;

2. Warning letters and orders to abate pollution;

3. Warning letters with requirements to submit written reports; or

4. Formal violations and legal action as described in this chapter and as authorized by Chapter 17.128 BMC.

B. Notice to Clean. Whenever an authorized enforcement official finds any oil, earth, dirt, grass, weeds, dead trees, tin cans, rubbish, refuse, waste or any other material of any kind, in or upon the sidewalk abutting or adjoining any parcel of land, or upon any parcel of land or grounds, which may result in an increase in pollutants entering the city storm drain system or a non-storm water discharge to the city storm drain system, the authorized enforcement official may give notice to remove such oil, earth, dirt, grass, weeds, dead trees, metal cans, rubbish, refuse, waste or other material, in any manner that the enforcement official may reasonably provide. The recipient of such notice shall undertake the activities as described in the notice. (Ord. 22-12 § 1).

15.70.220 Remedies not exclusive.

Remedies under this chapter are in addition to and do not supersede or limit any and all other remedies, civil or criminal. The remedies provided for herein shall be cumulative and not exclusive.

A. Appeal. Any person, firm, corporation or organization required to perform monitoring, analyses, reporting and/or corrective activities by an authorized enforcement officer who is aggrieved by the decision of the authorized enforcement officer may appeal such decision to the city engineer within 10 days following the effective date of the decision by writing the city engineer in accordance with Chapter 1.44 BMC. Upon receipt of such request, the city manager shall request a report and recommendation from the authorized enforcement officer and shall set the matter for hearing within 14 days. At said hearing, the city manager may hear additional evidence, and may reject, affirm, or modify the authorized enforcement officer’s decision. Said decision shall be final unless appealed further in accordance with Chapter 1.44 BMC.

B. Disclaimer of Liability. The degree of protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific, engineering, and other relevant technical considerations. The standards set forth herein are minimum standards and this chapter does not imply that compliance will ensure that there will be no unauthorized discharge of pollutants into the waters of the United States. This chapter shall not create liability on the part of the city, any officer or employee thereof for any damages that result from reliance on this chapter, or any administrative decision lawfully made thereunder. (Ord. 22-12 § 1).

15.70.230 Coordination with hazardous materials inventory and response program.*

The first revision of the business plan for any facility subject to the city’s hazardous materials inventory and response program shall include a program for compliance with this chapter, including the prohibitions on non-storm water discharges and illicit discharges, and the requirement to reduce storm water pollutants to the maximum extent practicable. (Ord. 22-12 § 1).

* Code reviser’s note: Ord. 22-12 added this section as 15.70.220. It has been editorially renumbered to avoid duplication.