Chapter 8.70 STORM WATER MANAGEMENT AND DISCHARGE CONTROL

This chapter shall be known as the “City of Millbrae Storm Water Management and Discharge Control Ordinance” and may be so cited. (Ord. 607, § 1; 1976 Code § 8-14.01).

8.70.020 Purpose and intent.

The purpose of this chapter is to ensure the future health, safety and general welfare of city citizens by:

A. Eliminating non-storm water discharges to the municipal separate storm sewer;

B. Controlling the discharge to municipal separate storm sewers from spills, dumping or disposal of materials other than storm water;

C. Reducing pollutants in storm water discharges to the maximum extent practicable.

The intent of this chapter is to protect and enhance the water quality of our watercourses, water bodies and wetlands in a manner pursuant to and consistent with the Clean Water Act. (Ord. 607, § 1; 1976 Code § 8-14.02).

8.70.030 Definitions.

A. Any terms defined in the federal Clean Water Act, as amended or supplemented, and/or defined in the regulations for the storm water discharge permitting program issued by the Environmental Protection Agency on November 16, 1990 (as may be amended) as used in this chapter shall have the same meaning as in that statute or regulations.

B. Specifically, the definition of the following terms included in that statute or regulations are hereby incorporated by reference, as now applicable or as may hereafter be amended: discharge, illicit discharge, pollutant, pollution and storm water. These terms presently are defined as follows:

1. “Discharge” means: (a) any addition of any pollutant to navigable waters from any point source, (b) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft, or (c) any supplemental runoff which increases the total volume or rate of storm water runoff from any activity or development.

2. “Illicit Discharge” means any discharge to the city storm sewer system that is not composed entirely of storm water except discharges pursuant to a NPDES permit or exempted under MMC 8.70.090, “Exceptions to discharge prohibition.”

3. “Pollutant” means dredged soil, solid waste, concrete, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, automotive-related wastes, wrecked or discarded equipment, rock, sand, cellar dirt or industrial, municipal or agricultural waste discharge into water.

4. “Pollution” means the man-made or man-induced alteration of the chemical, physiological, biological or radiological integrity of the water.

5. “Storm water” means storm water runoff, snow melt runoff and surface runoff and drainage, excluding supplemental runoff.

6. “Supplemental runoff” means any increment of increase in the total volume or rate of storm water runoff resulting from any activity or development occurring after the effective date of the ordinance codified in this chapter.

C. When used in this chapter, the following words shall have the meanings ascribed to them in this section:

1. Authorized Enforcement Official. The city manager or designee is hereby authorized to enforce the provisions of the ordinance codified in this chapter.

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

3. “City” means the city of Millbrae.

4. “City storm sewer system” means and 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, catch basins, curbs, gutters, ditches, man-made channels or storm drains, which are not part of a publicly owned treatment works (POTW) as defined at 40 CFR Section 122.2.

5. “Non-storm water discharge” means any discharge including supplemental runoff that is not entirely composed of storm water.

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

7. “Watercourse” means a natural stream, creek or man-made uncovered channel through which water flows continuously or intermittently. (Ord. 607, § 1, Amended by Ord. 698, § 1; 1976 Code § 8-14.03).

8.70.040 Responsibility for administration.

This chapter shall be administered for the city by the city manager or designee. (Ord. 607, § 1, Amended by Ord. 698, § 1; 1976 Code § 8-14.04).

8.70.050 Construction and application.

This chapter shall be construed to assure consistency with the requirements of the federal Clean Water Act, as amended or supplemented, applicable implementing regulations and NPDES Permit No. CA 0029921 and any amendment, revision or reissuance of it. (Ord. 607, § 1; 1976 Code § 8-14.05).

8.70.060 Severability and validity.

If any portion of this chapter is declared invalid by any court of competent jurisdiction, the remaining portions of this chapter are to be considered valid. (Ord. 607, § 1; 1976 Code § 8-14.06).

8.70.070 Waiver procedures.

A. It is the intent of this chapter to protect and enhance water quality while respecting the rights of private property owners to economically viable use of land. It is not the intent of this chapter to prohibit all economically viable uses of any private lands, nor to result in a confiscatory impact. Accordingly, the purpose of this section is to provide for an administrative procedure for a waiver or modification of a particular provision of this chapter in the event the strict application of this chapter would result in the denial of all economically viable use of real property.

B. An applicant for a waiver of a provision of this chapter shall file a waiver application with the director of public works on a form provided by the director identifying the provision sought to be waived or modified. The applicant shall file a complete form and shall provide all documentation and information required by the director to determine whether application of the provision in question will prohibit any economically viable use of the land in question or otherwise have an impermissible confiscatory result.

C. The director may approve, deny or conditionally approve a waiver application upon making all of the following written findings:

1. That the strict application of the provision for which a waiver or modification is sought would result in the denial of all economically viable use of the real property in question;

2. To the maximum extent feasible, conditions have been placed upon such a waiver or modification in order to achieve the goals of this chapter as closely as possible while still allowing economically viable use of the real property in question; and

3. Approval of such a waiver will not result in a public nuisance which would constitute a significant and direct threat to public health or safety. (Ord. 607, § 1; 1976 Code § 8-14.07).

8.70.080 Illicit discharge.

The discharge of non-storm water discharges to the city storm sewer system is prohibited. All discharges of material other than storm water must be in compliance with a NPDES permit issued for the discharge (other than NPDES permit No. CA 0029921) and this chapter. Any non-storm water discharge that is not allowed under a NPDES permit or this chapter is an illicit discharge. Establishment, maintenance or continuation of any illicit discharge and appurtenant connection to the city storm sewer system is prohibited. (Ord. 607, § 1; 1976 Code § 8-14.08).

8.70.090 Exceptions to discharge prohibition.

The following discharges are exempt from the prohibition set forth in MMC 8.70.080.

A. The prohibition on discharges shall not apply to any discharge regulated under a National Pollutant Discharge Elimination System (NPDES) 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.

B. Discharges from the following activities will not be considered a source of pollutants or supplemental runoff to waters of the United States when properly managed: water line flushing and other discharges from potable water sources, landscape irrigation and lawn watering, irrigation water, diverted stream flows, rising ground waters, infiltration to separate storm drains, uncontaminated pumped ground water, foundation and footing drains, water from crawl space pumps, air conditioning condensation, springs, individual residential car washings, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges or flows from fire fighting and other emergency response activity. Accordingly these activities are not subject to the prohibition on discharges, unless determined to be a nuisance pursuant to Chapter 6.25 MMC or other applicable law. (Ord. 607, § 1; 1976 Code § 8-14.09).

8.70.100 Discharge in violation of permit.

Any discharge that would result in or contribute to a violation of NPDES Permit No. CA 0029921, the terms of which are incorporated by reference and which is on file in the office of the city clerk, and any amendment, revision or reissuance of it, either separately considered or when combined with other discharges, 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. 607, § 1; 1976 Code § 8-14.10).

8.70.110 Reduction of pollutants and supplemental runoff in storm water.

Any person engaged in activities which will or may result in pollutants or supplemental runoff entering the city storm sewer system shall undertake all practicable measures to reduce such pollutants or supplemental runoff. Examples of such activities include ownership and use of facilities which may be a source of pollutants such as parking lots, gasoline stations, industrial facilities, commercial facilities, stores fronting city streets, etc. Examples of supplemental runoff include calculated hydrologic increases in storm water runoff resulting from an increase in impervious surfaces due to construction or development, diversion of storm water runoff from naturally occurring tributaries, discharge of storm water detained through the use of detention facilities designed to change the rate of storm water flow from a development, or alteration of site runoff characteristics due to impervious pavements, structural modifications or landscaping alterations. The following minimal requirements shall apply:

A. Littering. 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 or accumulations, in or upon any street, alley, sidewalk, storm drain, inlet, catch basin, conduit or other drainage structures, watercourse, business place or upon any public or private lot of land in the city, so that the same might be or become a pollutant, except in a manner lawfully established for the disposal of garbage.

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 Millbrae in front of which there is a paved sidewalk shall maintain the sidewalk free of litter to the maximum extent practicable. Sweepings from the sidewalk shall not be swept or otherwise made or allowed to go into the gutter or street, but shall be disposed of in a receptacle maintained on the property as required for the disposal of garbage.

No person shall throw or deposit litter in any fountain, pond, lake, stream or any other body of water in a park or elsewhere within the city.

B. Standard for Parking Lots and Similar Structures. Persons owning or operating 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 or supplemental runoff to the city storm sewer system.

C. Maintenance of Used Grease and Oil Containers. Any business maintaining an outdoor container for the collection and disposal of used cooking oil and grease shall provide a secured double containment system, suitable to contain the entire contents of the container in the event of leakage or vandalism. This double containment system shall be maintained in such condition that it avoids public health concerns and nuisances, including odors. Should any business fail to provide the necessary containment system and spillage of cooking oils or grease occurs, either accidentally or otherwise, that threatens the environment, then, in addition to all the enforcement mechanisms and penalties specified in Chapter 1.05 MMC, that business will be responsible to take all immediate measures to contain the spill from entering the city’s storm drain system and for cleanup of the spillage within four hours of learning of the spillage or of notification of a spill. If the business fails to clean up the spillage within four hours, the city will take action to have the spillage cleaned. The business will be responsible to pay or reimburse the city for all costs incurred as a result of the cleanup. A ten percent penalty will be added for each thirty day period for which the city is not reimbursed for these costs, and a business license renewal will not be granted to the business until these costs are paid in full.

D. Best Management Practices for Development and Construction. Any construction contractor performing work in the city shall endeavor, whenever possible, to provide filter materials at the catch basin to retain any debris and dirt flowing into the city’s storm sewer system. The city may establish controls on the volume and rate of storm water runoff from new developments and redevelopments as may be appropriate to minimize the discharge and transport of pollutants or supplemental runoff.

E. Compliance with Best Management Practices. When best management practices, plans, programs, guidelines or requirements have been adopted by the city for any activity, operation or facility which may cause or contribute to storm water pollution or contamination and/or discharge of non-storm water or supplemental runoff to the storm water system, every person undertaking such activity or operation, or owning or operating such facility shall comply with such plans, programs, guidelines or requirements as may be identified by the city. (Ord. 607, § 1, Amended by Ord. 694, §§ 1, 2; 1976 Code § 8-14.11).

8.70.120 Watercourse protection.

Except as modified or improved by the city, watercourses shall be maintained by adjacent property owners in a manner consistent with this chapter such that storm water flow is allowed to pass freely through a watercourse without obstruction. Watercourses shall include the entire riparian area of annual and ephemeral creeks, streams, channels and drainage ditches. The following provisions shall apply to protection of watercourses:

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 free of trash, debris, excessive vegetation and other materials which would pollute, contaminate, obstruct or significantly retard the flow of water through the watercourse. Any water control structures that are privately owned within a watercourse shall be maintained by the property owner so that the function of the watercourse is maintained.

B. Healthy bank vegetation shall not be removed beyond that necessary for routine maintenance. Watercourse vegetation and erosion control facilities shall be maintained to prevent erosion of the watercourse and sedimentation of downstream portions of the watercourse.

C. Any person planning a construction or maintenance activity that has the potential to cause erosion and sedimentation of a watercourse shall first apply for and be granted a grading permit from the city pursuant to the city grading ordinance at Chapter 9.45 MMC. Specific best management practices shall be applied to any such activity which mitigates the potential for erosion and sedimentation in accordance with policies and practices established by the department of public works.

D. It shall be a violation of this chapter for any person to engage in any of the following activities without first having obtained an approved grading permit from the city pursuant to the city grading ordinance (Chapter 9.45 MMC):

1. Construct, alter, dam, divert or bridge any watercourse within the city;

2. Damage, remove, disturb or destroy any improvements, structures, erosion control or sedimentation facilities within a watercourse; or

3. Remove, mine, dredge or excavate any sand, gravel, soil or material of any kind from any watercourse. Any person desiring to remove an accumulation of sediment from a watercourse shall obtain a grading permit in accordance with the provisions of this chapter and the Millbrae grading ordinance. (Ord. 607, § 1; 1976 Code § 8-14.12).

8.70.130 Authority to inspect.

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 official may enter such building or premises at all reasonable times to inspect the same or perform any duty imposed upon the official by this chapter; provided that (i) if such building or premises be occupied, he or she shall first present proper credentials and request entry; and (ii) if such building or premises be unoccupied, he or she 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 and inspection 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.

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, discharge of non-storm water to the storm water system or similar factors.

A. 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, 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. Unauthorized tampering, destruction or other interference with a sampling or monitoring device shall constitute a misdemeanor.

B. Notification of Spills. 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 which may result in pollutants or non-storm water discharges entering the city storm sewer system, such person shall take all necessary steps to ensure the discovery, containment and cleanup of such release and shall immediately notify the department of public works by telephone and Millbrae dispatch at 911 followed by a written confirmation of the notification within five days to the city of Millbrae, Department of Public Works, 621 Magnolia Avenue, Millbrae, California 94030, Attention: Director of Public Works.

C. 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 an illicit discharge 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 recipient of such request shall undertake and provide the monitoring, analyses and/or reports requested and shall bear all related costs. The burden, including costs, of these activities, analyses and reports shall bear a reasonable relationship to the need for the monitoring, analyses and reports and the benefits to be obtained. (Ord. 607, § 1; 1976 Code § 8-14.13).

8.70.140 Violations constituting misdemeanors.

Unless otherwise specified by ordinance, it is a misdemeanor for any person to wilfully and knowingly violate any provision of this chapter or fail to comply with any of the mandatory requirements of this chapter. However, notwithstanding any other provisions of this chapter, any such violation constituting a misdemeanor under this chapter may, in the discretion of the enforcing authority, be charged and prosecuted as an infraction. (Ord. 607, § 1; 1976 Code § 8-14.14).

8.70.150 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. 607, § 1; 1976 Code § 8-14.15).

8.70.160 Actions constituting violation.

Causing, permitting, aiding, abetting or concealing a violation of any provision of this chapter shall constitute a violation of such provision. (Ord. 607, § 1; 1976 Code § 8-14.16).

8.70.170 Violations deemed a public nuisance.

In addition to the penalties provided above, if 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 declared and deemed a nuisance that may be summarily abated and/or restored by any authorized enforcement official, then the city attorney may take civil action to abate, enjoin or otherwise compel the cessation of such nuisance in accordance with Chapter 6.25 MMC. (Ord. 607, § 1; 1976 Code § 8-14.17).

8.70.180 Civil actions.

In addition to any other remedies provided in the Millbrae Municipal Code, any violation of the provisions 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. 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;

C. Costs incurred in removing, correcting, or terminating the adverse effects resulting from the violation, including reasonable attorney’s fees and court costs;

D. 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. (Ord. 607, § 1; 1976 Code § 8-14.18).

8.70.190 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 administrative remedies, including issuing a notice to clean that will describe the actions that must be taken in order to comply with this chapter. (Ord. 607, § 1; 1976 Code § 8-14.19).

8.70.200 Notice to clean.

Whenever an authorized enforcement official finds any material of any kind in or upon the sidewalk abutting or adjoining any parcel of land or upon any parcel of land that may result in an increase of pollutants in the storm sewer system or non-storm water discharges, the official may issue a notice to clean for removal of the pollutant in a manner that the official may reasonably require. The recipient of such notice shall undertake the activities as described in the notice. (Ord. 607, § 1; 1976 Code § 8-14.20).

8.70.210 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. (Ord. 607, § 1; 1976 Code § 8-14.21).

8.70.220 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 and other applicable laws, such as Chapter 4.65 MMC, including the prohibitions on non-storm water discharges and the requirement to reduce storm water pollutants to the maximum extent practicable. (Ord. 607, § 1; 1976 Code § 8-14.22).

8.70.230 Establishment of fees.

The city council may adopt, establish and provide for the collection of fees, charges and assessments to defray the cost of the storm water management program and its enforcement including but not limited to:

A. Fees for the reimbursement of the costs to establish, operate and conduct storm water inspection, monitoring and compliance with this chapter;

B. Fees for NPDES permit applications and compliance with NPDES Program Requirements including the filing of appeals related to this chapter;

C. Fees for storm water discharges into the city storm drain system;

D. Fees for city functions consistent with NPDES requirements including street sweeping, capital improvements, storm drain system clean up and maintenance;

E. Administrative, engineering and public service fees related to the management, operation and execution of NPDES permit and program requirements; and

F. Development fees for compliance with construction and development best management practices.

These fees relate solely to the matters covered by this chapter and are separate from all other fees, fines and penalties which may be charged by the city. (Ord. 607, § 1; 1976 Code § 8-14.23).

8.70.240 Storm water management program fee schedule.

Pursuant to MMC 8.70.230, the city council hereby establishes and adopts as the fee schedule for the storm water management program in the city those annual fees set forth in the engineer’s report, dated June 14, 1994, presented to the city council and on file in the office of the city clerk. This report specifies the method of calculation and the fees applicable to all assessor parcels in the city.

Federal, state and city government activities, and unclassified and vacant open space shall be deemed exempted uses under the fee schedule; no fees shall be established for such exempted uses. (Ord. 608, § 1; 1976 Code § 8-14.24).

8.70.250 Collection of program fees on county general tax rolls.

The fees for the storm water management program set forth in MMC 8.70.240, as they may be amended from time to time, shall be collected on the property tax rolls of the county of San Mateo commencing with fiscal year 1994-95 as permitted by applicable state law. The city council, in its discretion, may arrange with the county for the countywide charges for the storm water management general program, to be combined with the city-imposed fees established in MMC 8.70.240 such that one line item for fees and charges associated with storm water management will appear on each property tax bill. (Ord. 608, § 2; 1976 Code § 8-14.25).