Chapter 13.09
STORMWATER MANAGEMENT AND DISCHARGE CONTROL
Sections:
13.09.050 Discharge prohibitions.
13.09.060 Exemptions to discharge prohibitions.
13.09.070 Best management practice requirements for all dischargers.
13.09.080 Additional requirements for land disturbance activity.
13.09.090 Additional requirements for all land development and redevelopment projects.
13.09.100 Maintenance of best management practices.
13.09.110 Inspection and sampling.
13.09.120 Enforcement authority.
13.09.130 Other acts and omissions that are violations.
13.09.010 Title.
This chapter shall be known as the “City of Poway stormwater management and discharge control ordinance.” (Ord. 827 § 2 (Exh. 1), 2019; Ord. 775 § 3, 2015)
13.09.020 Purpose and intent.
The purposes of this chapter are as follows:
A. To establish requirements for discharges into the stormwater conveyance system, receiving waters, and the environment;
B. To protect, to the maximum extent practicable (MEP), life, property, receiving waters, aquatic life, and the environment from loss, injury, degradation, or damage by discharges from within the City’s jurisdiction;
C. To protect the stormwater conveyance system from damage; and
D. To meet the requirements of State and Federal law and the MS4 Permit. (Ord. 827 § 2 (Exh. 1), 2019; Ord. 775 § 3, 2015)
13.09.030 Definitions.
The following definitions shall be applicable when the following words or phrases are used hereafter in this chapter (including use in the City of Poway’s Best Management Practices Manual), whether or not these words or phrases are capitalized:
“Authorized enforcement official” means the City Manager of the City of Poway or any designee of the City Manager of the City of Poway who is responsible for enforcing the provisions of this chapter, including but not limited to the directors, their management staff, and designees.
“Best management practices” or “BMPs” are the schedules of activities, pollution treatment practices or devices, prohibitions of practices, general good housekeeping practices, pollution prevention and educational practices, maintenance procedures, and other management practices or devices to prevent or reduce the discharge of pollutants directly or indirectly to stormwater, receiving waters or the stormwater conveyance system. BMPs also include, but are not limited to, treatment practices, operating procedures, and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from raw materials storage. BMPs may include any type of pollution prevention and pollution control measure, approved by the City and consistent with the MS4 Permit, that can help to achieve compliance with this chapter.
“BMP Manual” or “Manual” means the City’s Best Management Practices (BMP) Manual, described in PMC 13.09.040(C) and 13.09.080. The BMP Manual shall be adopted, and amended from time to time, by resolution as a part of the City’s Jurisdictional Runoff Management Program.
“Channel” means a natural or improved watercourse with a definite bed and banks that conveys continuously or intermittently flowing water.
“City” means the City of Poway.
“Contamination,” as defined in Section 13050 of the Porter-Cologne Water Quality Control Act (Division 7 of the California Water Code), is “an impairment of the quality of waters of the State by waste to a degree which creates a hazard to the public health through poisoning or through the spread of disease. “Contamination” includes any equivalent effect resulting from the disposal of waste whether or not waters of the State are affected.” In the event Section 13050 of the Porter-Cologne Water Quality Act is amended or superseded, the amended or superseding section shall define “contamination.”
“County” means the County of San Diego.
“Developer” means a person who seeks or receives permits for or who undertakes land development activity.
“Development project proponent” means developer.
“Director” means the Director of the City’s Development Services Department.
“Discharge,” when used as a verb, means to allow pollutants to directly or indirectly enter stormwater, or to allow stormwater or nonstormwater to directly or indirectly enter the stormwater conveyance system or receiving waters, from an activity or operations which one owns or operates. When used as a noun, “discharge” means the pollutants, stormwater and/or nonstormwater that is discharged.
“Discharge directly to” means that stormwater or nonstormwater is conveyed overland a distance of 200 feet or less from a site, or conveyed in a pipe or open channel any distance as an isolated flow from a site (i.e., not commingled with flows from adjacent lands).
“Discharger” means any person or entity engaged in activities or operations, or owning facilities, which will or may result in pollutants entering stormwater, the stormwater conveyance system, or receiving waters; and the owners of real property on which such activities, operations or facilities are located; provided, however, that a local government or public authority is not a discharger as to activities conducted by others in public rights-of-way.
“Erosion” refers to any process in which land is diminished or worn away due to wind, water or glacial ice. Often the eroded debris (silt or sediment) becomes a pollutant via stormwater runoff. Erosion occurs naturally but can be intensified by land clearing activities such as farming, development, road building, and timber harvesting.
“Groundwater” means subsurface water that occurs beneath the water table in soils and geologic formations that are fully saturated.
“Illegal connection” means a pipe, facility or other device connected to the stormwater conveyance system or receiving waters, which has not been reviewed and authorized by the City; or a permitted/authorized pipe, facility or other device which conveys illegal discharges.
“Illegal discharge” means any discharge to the stormwater conveyance system or receiving waters that is prohibited by this chapter. This includes, but is not limited to, discharges of nonstormwater that are not exempt discharges listed in PMC 13.09.060, discharges of irrigation runoff to the stormwater conveyance system, any discharge from an illegal connection, and any discharge that contains additional pollutants due to the absence of a required BMP or the failure of a BMP. Discharges that require an NPDES permit that has not been issued or has not been acknowledged by the discharger to be applicable are illegal discharges. Discharges regulated under an applicable NPDES permit are illegal discharges for purposes of this chapter unless compliance with all applicable permit and stormwater pollution prevention plan (SWPPP) conditions is maintained.
“Impervious surface” means constructed or modified surfaces that cannot effectively infiltrate rainfall. The term includes, but is not limited to, building rooftops, pavement, sidewalks, and driveways.
“Land development activity” means construction, rehabilitation, redevelopment, or reconstruction of any public or private projects.
“Land disturbance activity” means any activity that moves soils or substantially alters the preexisting vegetated or manmade cover of any land. This includes, but is not limited to, grading, digging, cutting, scraping, stockpiling or excavating of soil; placement of fill materials; paving, pavement removal, exterior construction; substantial removal of vegetation where soils are disturbed, including, but not limited to, removal by clearing or grubbing; or any activity which bares soil or rock or involves streambed alterations or the diversion or piping of any watercourse. “Land disturbance activity” does not include routine maintenance to maintain original line and grade, hydraulic capacity or the original purpose of the facility, nor does it include emergency construction activities or maintenance activities required to protect public health and safety.
“Land owner” means the holder of legal title to the land, and other persons or entities who exercise control over a land development project pursuant to rights granted in a purchase agreement, joint venture agreement, development agreement, or long-term lease.
“Low impact development” or “LID” means a stormwater management and land development strategy that emphasizes conservation and the use of on-site natural features integrated with engineered, small-scale hydrologic controls to more closely reflect predevelopment hydrologic functions.
“Maintenance of a BMP” means periodic action taken to maintain the as-designed performance of a BMP, and includes, but is not limited to, repairs to the BMP as necessary and replacement of the BMP by an equally effective or more effective BMP at the end of its useful life.
“Maximum extent practicable” or “MEP” is an acceptability standard for BMPs. When BMPs are required to meet this standard, the BMPs must be the most effective set of BMPs that is still practicable. A BMP is effective if it prevents, reduces or removes the pollutants that would otherwise be present in runoff due to human activity. A BMP is practicable if it complies with other regulations as well as stormwater regulations; is compatible with the area’s land use, character, facilities, and activities; is technically feasible (considering area soil, geography, water resources, and other resources available); is economically feasible; and provides benefits that are reasonable in relation to costs.
“MS4 Permit” refers to RWQCB Order No. R9-2013-0001, NPDES Permit No. CAS0109266, as may be amended.
“Nonstormwater discharge” is any discharge to the stormwater conveyance system or receiving waters that is not composed entirely of stormwater.
“NPDES permit” means a National Pollutant Discharge Elimination System (NPDES) permit issued by the U.S. Environmental Protection Agency, the State Water Resources Control Board (SWRCB), or the RWQCB.
“Nuisance” shall have the same meaning as set forth in PMC 8.72.020.
“Pollutants” shall have the same meaning as set forth in PMC 8.68.020.
“Pollution,” as defined in Section 13050 of the Porter-Cologne Water Quality Control Act (Division 7 of the California Water Code), is “the alteration of the quality of the waters of the State by waste, to a degree which unreasonably affects either of the following: (1) the waters for beneficial uses; or (2) facilities that serve these beneficial uses.” In the event Section 13050 of the Porter-Cologne Water Quality Act is amended or superseded, the amended or superseding section shall define “pollution.” Pollution may include contamination.
“Porter-Cologne Water Quality Control Act” or “Act” means Division 7 of the California Water Code as may be amended from time to time.
“Premises” means any building, lot, parcel, land or portion of land whether improved or unimproved.
“Priority development project” refers to new development and redevelopment project categories as more fully set forth in Section E.3.b of the MS4 Permit and in the BMP Design Manual.
“Receiving waters” means all waters that are “waters of the United States.”
“Redevelopment” means any construction, alteration or improvement of an already developed site. “Redevelopment” can include, but is not limited to, the expansion of building footprints, the addition or replacement of a structure, exterior construction and remodeling, replacement of existing impervious surfaces that are not part of a routine maintenance activity, and other activities that create additional impervious surfaces.
“Runoff” means all flows in a stormwater conveyance system, including stormwater (wet weather flows) and nonstormwater (dry weather flows).
“RWQCB” means the Regional Water Quality Control Board for the San Diego Region.
“Sediment” means soils or other surficial materials eroded and then transported or deposited by the action of wind, water, ice, or gravity. Sediment resulting from anthropogenic sources (i.e., human induced land disturbance activities) is considered a pollutant.
“Standard urban stormwater mitigation plan” means a plan designed to reduce pollutants and runoff flows from new development and significant redevelopment.
“State” means the State of California.
“State general construction stormwater permit” means NPDES Permit No. CAS000002 and any amendments thereto.
“State general industrial stormwater permit” means NPDES Permit No. CAS000001 and any amendments thereto.
“Stop work order” means an order issued which requires that specifically identified activity or all activity on a site be stopped.
“Stormwater” shall have the same meaning as set forth in PMC 8.68.020.
“Stormwater conveyance system” means facilities owned or operated by the City of Poway by which stormwater may be conveyed to receiving waters of the United States, including any roads with drainage systems, streets, catch basins, curbs, gutters, ditches, pipes, natural and manmade channels or storm drains.
“Stormwater management” means the use of structural or nonstructural BMPs that are designed to reduce urban runoff pollutant loads, discharge volumes and/or peak discharge flow rates or velocities. When applied to the City or another municipality, stormwater management also includes planning and programmatic measures.
“Stormwater management plan” means a plan, submitted on a City form or in a City-specific format in connection with an application for a City permit or other City approval, identifying the measures that will be used for stormwater and nonstormwater management during the permitted activity.
“Stormwater pollution prevention plan” or “SWPPP” means a document that meets the requirements for an SWPPP set out in the State general construction stormwater permit or the State general industrial stormwater permit.
“Stormwater quality management plan” (SWQMP) is a report that documents how a priority development project complies with applicable BMP requirements for land development and redevelopment activities listed in the BMP Manual.
“Structural BMP” means a BMP that relies on either a physical condition (other than an entirely natural and undisturbed condition), or a constructed or installed device to reduce or prevent pollutants in stormwater discharges and authorized nonstormwater discharges. Constructed or enhanced BMPs that depend on natural materials and processes (e.g., constructed drainage swales or buffers, or constructed wetlands), and that require periodic maintenance to function as designed, are structural BMPs.
“Structural post-construction BMP” means a structural BMP (other than a temporary construction-related BMP) put in place in connection with a land development or redevelopment project to prevent or reduce pollution of stormwater or receiving waters, or to prevent or reduce erosion downstream from the project. All treatment control BMPs are structural post-construction BMPs.
“SWRCB” means the State Water Resources Control Board.
“Water quality standards” are defined as the beneficial uses (e.g., swimming, fishing, municipal drinking water supply, etc.) of water and the water quality objectives adopted by the State or the U.S. Environmental Protection Agency to protect those uses.
“Watercourse” means a permanent or intermittent stream, creek or other body of water, either natural or improved, which gathers or carries surface water.
“Waters of the State” means any water, surface or underground, including saline waters, within the boundaries of the State (State Water Code Section 10350(e)). The definition of the “waters of the State” is broader than that for the “waters of the United States” in that all water in the State is considered to be “waters of the State” regardless of circumstances or condition.
“Waters of the United States” means water subject to the regulatory jurisdiction of the United States under the Federal Clean Water Act and applicable case law. (In general, this includes “navigable” waters, waters tributary to “navigable” waters and adjacent wetlands.) (Ord. 827 § 2 (Exh. 1), 2019; Ord. 775 § 3, 2015)
13.09.040 General provisions.
A. Responsibility for Administration. This chapter shall be administered for the City of Poway by its authorized enforcement officials.
B. Construction and Application. Interpretation of this chapter shall assure consistency with the purpose and intent of this chapter and shall implement the requirements of the MS4 Permit. This chapter is not intended to interfere with, abrogate or annul any other chapter, rule or regulation, statute or other provision of law. The requirements of this chapter should be considered minimum requirements, and where any provision of this chapter imposes restrictions different from those imposed by any other chapter, rule or regulation, or other provision of law, whichever provisions are more restrictive or impose higher protective standards for human health or the environment shall take precedence. Stormwater and nonstormwater discharges regulated under a valid facility-specific NPDES permit or facility-specific RWQCB waste discharge requirements permit are not subject to this chapter, but shall instead be regulated exclusively by the RWQCB.
C. BMP Manual. The City may establish and adopt a written description of the runoff management measures and programs, including minimum BMPs that the City will implement, or require to be implemented, to ensure compliance with this chapter. These documents shall be known collectively as the BMP Manual. Amendments to the BMP Manual shall be approved by the authorized enforcement official.
D. Severability and Validity. If any section of this chapter is declared invalid by a court of law, the remaining sections shall remain valid. The City Council hereby declares that it would have passed this chapter, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases had been declared invalid or unconstitutional, and if for any reason this chapter should be declared invalid or unconstitutional, then the original ordinance or ordinances shall be in full force and effect. (Ord. 827 § 2 (Exh. 1), 2019; Ord. 775 § 3, 2015)
13.09.050 Discharge prohibitions.
A. Illegal Discharges. The direct or indirect discharge of pollutants into the stormwater conveyance system or receiving waters is prohibited, except as exempted in PMC 13.09.060. The direct or indirect discharge of pollutants into the stormwater conveyance system or receiving waters in stormwater is prohibited, unless the applicable requirements of this chapter have been met.
B. Illegal Connection. The establishment of illegal connections is prohibited. The use of illegal connections is prohibited, even if the connection was established pursuant to a valid City permit and was legal at the time it was constructed.
C. Prevention of Illegal Discharges. Throwing, depositing, leaving, abandoning, maintaining, or keeping materials or wastes on public or private lands in a manner and place where they may result in an illegal discharge is prohibited.
D. Violations of the MS4 Permit. It is unlawful for any responsible person as defined in Chapters 1.08 and 1.10 PMC to cause, or threaten to cause, either individually or jointly, any discharge into or from the stormwater conveyance system that results in or contributes to a violation of the MS4 Permit. (Ord. 827 § 2 (Exh. 1), 2019; Ord. 775 § 3, 2015)
13.09.060 Exemptions to discharge prohibitions.
A. Permitted Discharges. Any discharge to the stormwater conveyance system that is regulated under an NPDES permit issued to the discharger and administered by the State pursuant to the Porter-Cologne Water Quality Control Act is allowed; provided, that the discharger is in compliance with all requirements of the NPDES permit and other applicable laws and regulations.
B. Groundwater Discharges Typically Requiring Permits. Nonstormwater discharges to the stormwater conveyance system from the following categories are allowed if: (1) the discharger obtains coverage under NPDES Permit No. CAG919002 (RWQCB Order No. R9-2008-0002, or subsequent order) for discharges to surface waters other than San Diego Bay, and the discharger is in compliance with all requirements of the applicable NPDES permit, and all other applicable laws and regulations; or (2) the RWQCB determines in writing that coverage under NPDES Permit No. CAG919002 (or subsequent permit) is not required. Otherwise, nonstormwater discharges from the following categories are illegal discharges:
1. Discharges from uncontaminated pumped groundwater;
2. 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;
3. Discharges from water from crawl space pumps; or
4. Discharges from water 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.
C. Discharges from Water Lines. Nonstormwater discharges to the stormwater conveyance system from water line flushing and water main breaks are allowed if the discharges have coverage under NPDES Permit No. CAG679001 (RWQCB Order No. R9-2010-0003, or subsequent order), and the discharger is in compliance with all requirements of that NPDES permit and other applicable laws and regulations. This category includes water line flushing and water main break discharges from water purveyors issued a water supply permit by the California Department of Public Health or Federal military installations. Discharges from recycled or reclaimed water lines to the stormwater conveyance system are allowed if the discharges have coverage under an NPDES permit, and the discharger is in compliance with the applicable NPDES permit and other applicable laws and regulations. Otherwise, discharges from water lines are illegal discharges.
D. Allowable Discharges. Nonstormwater discharges to the stormwater conveyance system from the following categories are allowed, unless an authorized enforcement official or the RWQCB identifies the discharge as a source of pollutants to receiving waters, in which case the discharge is considered an illegal discharge:
1. Discharges from diverted stream flows;
2. Discharges from flows from riparian habitats and wetlands;
3. Discharges from foundation drains when the system is designed to be located above the groundwater table at all times of the year, and the system is only expected to produce nonstormwater discharges under unusual circumstances;
4. Discharges from footing drains when the system is designed to be located above the groundwater table at all times of the year, and the system is only expected to produce nonstormwater discharges under unusual circumstances;
5. Discharges from rising groundwater;
6. Discharges from uncontaminated groundwater infiltration to the stormwater conveyance system;
7. Discharges from springs; and
8. Discharges from potable water sources, except as set forth in subsection C of this section and except that irrigation runoff discharges are considered illegal discharges and are not allowed.
E. Conditionally Allowed Discharges. Nonstormwater discharges from the following categories are allowed if they are addressed as set forth below; otherwise, nonstormwater discharges from the following categories are illegal discharges:
1. Air Conditioning Condensation. Air conditioning condensation discharges shall comply with applicable BMPs identified in the BMP Manual.
2. Individual Residential Vehicle Washing. Wash water from individual residential vehicle washing must be directed to landscaped areas or other pervious surfaces, where feasible. Where discharges cannot be feasibly prevented, BMPs must be implemented in accordance with the BMP Manual. Noncommercial car washes, such as fundraisers and other similar activities, are not considered individual residential vehicle washing. Discharges from such activities are, therefore, considered illegal discharges.
3. Water from Swimming Pools.
a. Chlorinated Swimming Pool Water. Chlorine, algaecide, filter backwash, and other pollutants shall be eliminated prior to discharging swimming pool water to the stormwater conveyance system.
b. Saline Swimming Pool Water. Saline swimming pool water must be directed to the sanitary sewer, landscaped areas, or other pervious surfaces that can accommodate the volume of water, unless the saline swimming pool water can be discharged directly to a naturally saline water body.
F. Firefighting Activities. Nonstormwater discharges to the stormwater conveyance system from firefighting activities are allowed if they are addressed as follows:
1. 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, shall be addressed by BMPs to prevent the discharge of pollutants to the stormwater conveyance system.
2. Emergency Firefighting Discharges. BMPs are encouraged to prevent pollutants from entering the stormwater conveyance system. During emergencies, priority of efforts should be directed toward life, property and the environment (in descending order). BMPs shall not interfere with emergency response operations or impact public health and safety.
G. Exemptions Not Absolute. Notwithstanding the categories of nonstormwater discharges conditionally allowed by subsections A through F of this section, if the RWQCB or the authorized enforcement official determines that any of these categories of 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 shall be prohibited from entering the stormwater conveyance system. (Ord. 827 § 2 (Exh. 1), 2019; Ord. 775 § 3, 2015)
13.09.070 Best management practice requirements for all dischargers.
A. Best Management Practices. Any responsible person as defined in Chapters 1.08 and 1.10 PMC engaged in activities which may result in discharges to the stormwater conveyance system shall, to the maximum extent practicable, undertake all measures to reduce the risk of nonstormwater discharges and pollutant discharges. The following requirements shall apply:
1. Every responsible person as defined in Chapters 1.08 and 1.10 PMC undertaking any activity or use of premises that may cause or contribute to stormwater pollution or contamination, illegal discharges, or nonstormwater discharges to the stormwater conveyance system shall comply with BMP guidelines or pollution control requirements, as may be established by the authorized enforcement official. BMPs shall be maintained routinely throughout the life of the activity. Such BMPs include the minimum BMPs set forth in the BMP Manual.
2. An authorized enforcement official may require any business or operations that are engaged in activities which may result in pollutant discharges to the stormwater conveyance system to develop and implement an SWPPP, which must include an employee training program and the applicable minimum BMPs from the BMP Manual.
3. Each discharger that is subject to any NPDES permit shall comply with all requirements of all such permits. The discharger must also make reports submitted to the RWQCB or other permitting agency, including monitoring data, available to the City upon request.
4. Parties undertaking land disturbance activities shall comply with all applicable requirements of this chapter, the BMP Manual, and Division III of PMC Title 16 (Chapters 16.40 through 16.54 PMC).
5. Parties undertaking land development and redevelopment activities shall comply with all applicable requirements of this chapter and the BMP Manual.
B. Guidance Documents. Any authorized enforcement official under the supervision of the City Engineer may prepare, disseminate and maintain guidance documents addressing the use of BMPs for specific activities or facilities, illegal connections and illegal discharges. These guidance documents may set out additional compliance alternatives that, in specified circumstances, can provide the same environmental protection that is afforded by the BMPs required by this chapter or specified in the BMP Manual.
C. Significant Sources of Pollutants. Where an authorized enforcement official identifies a discharge that is in violation of PMC 13.09.050(D) or 13.09.060(G), an authorized enforcement official may order the discharger to install, implement and maintain additional BMPs to prevent or reduce contamination in stormwater and nonstormwater to the MEP. Any such order shall specify a reasonable date by which those BMPs must be put in place. The failure to install, implement or maintain additional BMPs as required by any such order is a violation of this chapter.
D. Collection and Use of Stormwater. An authorized enforcement official may modify any requirement imposed by this chapter to allow the on-site collection and use of stormwater, or the collection of stormwater for delivery to and use at City-designated sites, provided the modified requirements are enforceable and provide equivalent environmental protection. (Ord. 827 § 2 (Exh. 1), 2019; Ord. 775 § 3, 2015)
13.09.080 Additional requirements for land disturbance activity.
A. Permit Issuance. No land owner or development project proponent shall receive any City grading, clearing, building, or other land development permit or equivalent approval required for land disturbance activity without first meeting the requirements of this chapter, the BMP Manual, and Division III of PMC Title 16, with respect to the portion of the development project and the land disturbance activity to which the permit at issue would apply.
B. Owners and Operators Both Responsible and Liable. Persons or entities performing land disturbance activity (including, but not limited to, construction activities) in the City, and the owners of land on which land disturbance activity is performed, are dischargers for purposes of this chapter; provided, however, that a local government or public authority is not a discharger as to activities conducted by others in public rights-of-way.
C. BMP Plan Submittals. All applications to the City for a permit or approval associated with a land disturbance activity must demonstrate how the proposed activity will comply with all applicable BMP requirements in a format specified by the City. The submitted materials shall specify the manner in which the discharger/applicant will implement the BMPs required by this chapter, the BMP Manual, and Division III of PMC Title 16 for the activity at issue, including, but not limited to, the applicable BMPs required by subsection D of this section.
D. Agricultural Grading and Clearing. The BMP requirements imposed by this section for land disturbance activities apply to agricultural grading and clearing, whether or not a City-issued grading and clearing permit is required for that activity. Tilling or cultivating land exclusively for the purpose of growing plants or animals is not considered to be grading or clearing, provided all disturbed material remains on the same site, the tilling or cultivating will not block or divert any natural drainage way, and the land to be tilled or cultivated has been in agricultural production for at least one of the preceding five years. (Ord. 827 § 2 (Exh. 1), 2019; Ord. 775 § 3, 2015)
13.09.090 Additional requirements for all land development and redevelopment projects.
A. Application to Development and Redevelopment Projects. No land owner or development project proponent in the City shall receive any City grading, clearing, building or other land development permit required for land development activity or redevelopment activity unless the project meets or will meet the requirements of this chapter and the applicable requirements defined in the City’s BMP Manual. For priority development projects, the project’s post-construction BMP plan must be approved prior to the issuance of such permits.
B. Owners and Developers Responsible and Liable. Developers, development project proponents, and land owners for land on which land development activity is performed are dischargers for purposes of this chapter; provided, however, that a local government or public authority is not a discharger as to activities conducted by others in public rights-of-way.
C. Post-Construction BMPs Required. Land development and redevelopment projects with the potential to add pollutants to stormwater or to affect the flow rate or velocity of stormwater runoff after construction is completed shall be designed to include and shall implement post-construction BMPs to ensure that pollutants and runoff from the development will be reduced to the maximum extent practicable, will not significantly degrade receiving water quality, and will not cause or contribute to an exceedance of water quality standards in accordance with the requirements defined in the BMP Manual.
D. Land Development Associated with Agricultural Operations. The requirements imposed by this section for land development activities apply to such activities when they are associated with agricultural operations.
E. Post-Construction Stormwater Management Plan. All applications to the City for a permit or approval associated with a land development or redevelopment activity must be accompanied by a post-construction stormwater management plan on a form or in a format specified by the City. The plan shall specify the manner in which the discharger/applicant will implement the post-construction BMPs required by this chapter. The plan must address those aspects of the project that, at the time a complete application is submitted, are subject to further environmental review pursuant to Section 15162 of the California Environmental Quality Act. Post-construction BMPs for other aspects of the project need not be addressed in this plan.
F. Stormwater Management Plan Review Fee and Deposit. Fees for stormwater management plan review and deposit thereof shall be adopted by resolution.
G. Control to the Maximum Extent Practicable. All dischargers engaged in land development and significant redevelopment activities shall install, implement and maintain post-construction BMPs as needed to prevent or reduce pollutant discharges in stormwater from land disturbance to the MEP. (Ord. 827 § 2 (Exh. 1), 2019; Ord. 775 § 3, 2015)
13.09.100 Maintenance of best management practices.
A. Existing Development. Dischargers shall maintain the designed functionality of BMPs they rely upon to achieve and maintain compliance with this chapter.
B. Structural Post-Construction BMPs. The owners and occupants of lands on which structural post-construction BMPs, including treatment control BMPs, have been installed to meet the requirements of this chapter shall ensure the maintenance of those BMPs, and shall themselves maintain those BMPs (by contract or covenant, or pursuant to this chapter). Such owners and occupants shall provide annual written verification that appropriate maintenance is conducted for all treatment control BMPs.
C. Maintenance Obligations Assumed by Contract or Other Agreement. Primary responsibility to maintain a structural post-construction BMP may be transferred through a contract or other agreement. If that contract provides that it will be submitted to the City pursuant to this chapter as part of a development permit application, and if that contract is so submitted, the person or entity accepting a maintenance obligation in such a contract or agreement will also be legally obligated to maintain that BMP pursuant to this chapter.
D. Obligation to Maintain BMPs Not Avoided by Contracts or Other Agreements. For purposes of City enforcement, no contract or other agreement imposing an obligation to maintain a structural post-construction BMP can relieve a person or entity of any obligation to maintain a BMP imposed by this chapter.
E. Disclosure of Maintenance Obligations. Any developer who transfers ownership of land on which a BMP is located or will be located, or who otherwise transfers ownership of a BMP or responsibility for the maintenance of a BMP to another person or entity, shall provide clear written notice of the maintenance obligations associated with that BMP to the new or additional responsible party prior to that transfer.
F. Maintenance Plans for Land Development Projects. The proponents of any land development project or significant redevelopment project that requires installation of structural post-construction BMPs shall provide to the City for review and approval prior to issuance of permits for the project a plan for maintenance of all structural post-construction BMPs associated with the project. The plan shall specify the persons or entities responsible for maintenance activity, the persons or entities responsible for funding, schedules and procedures for inspection and maintenance of the BMPs, worker training requirements, and any other activities necessary to ensure BMP maintenance. The plan shall provide for servicing of all structural post-construction BMPs at least annually and for the retention of inspection and maintenance records for at least three years.
G. Access for Maintenance. Structural post-construction BMPs shall provide for adequate access on the part of the City for long-term inspection and maintenance purposes.
H. Assurance of Maintenance for Land Development Projects. The proponents of any land development activity or redevelopment activity that requires a City permit shall provide to the City, prior to issuance of permits for the project, proof of a mechanism acceptable to the City which will ensure ongoing long-term maintenance of all structural post-construction BMPs associated with the proposed project. The proponents shall be responsible for maintenance of BMPs unless, and until, an alternative mechanism for ensuring maintenance is accepted by the City and becomes effective.
I. Security for Maintenance for Land Development Projects. If it is determined by the authorized enforcement official that the public interest requires the posting of a bond or other security to assure the maintenance of a BMP, such bond or security may be required by the authorized enforcement official. (Ord. 827 § 2 (Exh. 1), 2019; Ord. 775 § 3, 2015)
13.09.110 Inspection and sampling.
A. Regulatory Inspections and Certification Programs. The authorized enforcement official may establish inspection or certification programs to evaluate and enforce compliance with the requirements of this chapter. Authorized enforcement officials may inspect facilities, activities and residences subject to this chapter at reasonable times and in a reasonable manner to carry out the purposes of this chapter. If entry for a regulatory inspection is refused by the facility owner or operator, or by the occupant of a residence, an inspection warrant shall be obtained prior to inspection.
B. Inspections of New Construction. When any new storm drain system or structural BMP is installed on private property as part of a project that requires a City permit, in order to comply with this chapter, the responsible person as defined in Chapters 1.08 and 1.10 PMC shall agree to a condition of approval that provides the City access for inspection and maintenance of storm drain system or BMPs or, at the discretion of the City, shall provide to the City for review an easement to enter the property at reasonable times and in a reasonable manner to ensure that the storm drain system or BMP is working properly. This includes the right to enter the property without prior notice for routine inspections, to enter as needed for additional inspections when the City has a reasonable basis to believe that the storm drain system or BMP is not working properly, to enter for any needed follow-up inspections, and to enter when necessary for abatement of a nuisance or correction of a violation of this chapter.
C. Scope of Inspections. Inspections may include all actions necessary to determine whether any illegal discharges or illegal connections exist, whether the BMPs installed and implemented are adequate to comply with this chapter, whether those BMPs are being properly maintained, and whether the facility or activity complies with the other requirements of this chapter. This may include but may not be limited to sampling, metering, visual inspections and records review. Where samples are collected the owner or operator may request and receive split samples. Records, reports, analyses or other information required under this chapter may be inspected and copied, and photographs taken to document a condition and/or a violation of this chapter. (Ord. 827 § 2 (Exh. 1), 2019; Ord. 775 § 3, 2015)
13.09.120 Enforcement authority.
Authorized enforcement officials may enforce this chapter and abate public nuisances as set forth in Chapters 1.08, 1.10, 8.72 and 15.32 PMC and as follows:
A. Administrative Authorities.
1. Administrative Penalties. In addition to administrative penalties permitted elsewhere in the PMC, administrative penalties may include the recovery of fines assessed against the City by the RWQCB.
2. Cease and Desist Orders. Written orders, verbal orders or both may be issued to stop illegal discharges and/or remove illegal connections. If it is determined by an authorized enforcement official that the public interest requires the posting of a bond or other security to assure the violation is corrected, such bond or security may be required by the authorized enforcement official.
3. Notice and Order to Clean, Test or Abate. Written orders, verbal orders or both may be issued to perform activities to comply with the BMP Manual, this chapter, or as directed by an authorized enforcement official where conditions warrant.
4. Public Nuisance Abatement. Violations of this chapter are deemed a threat to public health, safety and welfare, and constitute a public nuisance. If actions ordered under subsections (A)(2) and (3) of this section are not performed, the authorized enforcement official may abate any public nuisance pursuant to Chapter 8.72 PMC. City costs for pollution detection and abatement, if not paid in full by the discharger in addition to any other penalties, may be made a lien against the property in accordance with the abatement procedure.
5. Stop Work Orders. Whenever any work is being done contrary to the provisions of this chapter, or other laws implemented through enforcement of this chapter, an authorized enforcement official may order the work stopped by notice in writing served on any person engaged in the doing or causing such work to be done, and any such person shall immediately stop such work until authorized by the authorized enforcement official to proceed with the work.
6. Permit Suspension or Revocation. Violations of this chapter may be grounds for the suspension or revocation of a permit and other City license pursuant to PMC 1.08.010(T).
B. Judicial Authorities.
1. Civil Penalties and Remedies. The City Attorney is hereby authorized to file criminal and civil actions to enforce this chapter and to seek civil penalties and/or other remedies as provided in this section and in PMC 13.09.140, as well as Chapters 1.08, 1.10, 8.72 and 15.32 PMC. There is no requirement that administrative enforcement procedures must be pursued before such actions are filed.
2. Injunctive Relief. The City may enforce compliance with this chapter by judicial action for injunctive relief.
3. Arrest or Issue Citations. The assistance of a peace officer may be enlisted to arrest violators or issue a citation and notice to appear as prescribed in the California Penal Code, including Section 853.6. There is no requirement that administrative enforcement remedies be exhausted or otherwise used before such actions are taken. The immunities prescribed in Section 836.5 of the Penal Code are applicable to authorized enforcement officials acting in the course and scope of their employment pursuant to this chapter. (Ord. 827 § 2 (Exh. 1), 2019; Ord. 775 § 3, 2015)
13.09.130 Other acts and omissions that are violations.
In addition to failing to comply with any of the other requirements described in this chapter, including a BMP Manual, the MS4 Permit, and a stormwater quality management plan, the following acts and omissions are violations of this chapter, whether committed by a discharger or by another person or entity:
A. Causing, Permitting, Aiding, or Abetting Noncompliance. Causing, permitting, aiding, or abetting noncompliance with any part of this chapter constitutes a violation of this chapter.
B. Concealment, Misrepresentation and False Statements. Any falsification or misrepresentation made to the City concerning compliance with this chapter, including any misrepresentation in a voluntary disclosure, any submission of a report that omits required material facts without disclosing such omission, and any withholding of information required to be submitted by or pursuant to this chapter in order to delay City enforcement action, is a violation of this chapter. Concealing a violation of this chapter is a violation of this chapter.
C. Failure to Promptly Correct Noncompliance. Violations of this chapter must be corrected within the time period specified by an authorized enforcement official. Each day (or part thereof) in excess of that period during which action necessary to correct a violation is not initiated and diligently pursued is a separate violation of this chapter.
D. City Permits and SWPPPs. Any failure to conform to an applicable SWPPP prepared pursuant to this chapter; any failure to comply with stormwater-related provisions of a City-issued grading permit or grading plan prepared to secure such a permit; and any failure to comply with stormwater-related provisions in any other City permit or approval is also a violation of this chapter. For purposes of this chapter a permit provision or condition of approval is “stormwater- related” if compliance with the provision or condition would have the effect of preventing or reducing contamination of stormwater or of moderating runoff flow rates or velocities, whether or not the provision or condition was initially imposed to promote those outcomes. (Ord. 827 § 2 (Exh. 1), 2019; Ord. 775 § 3, 2015)
13.09.140 Penalties.
A. Administrative Penalties. Administrative penalties may be imposed pursuant to this code. Any administrative penalty provision in this code shall also be applicable to violations of this chapter, unless otherwise provided therein.
B. Misdemeanor Penalties. Noncompliance with any part of this chapter may be charged as a misdemeanor, and may be enforced and punished as prescribed in the Penal Code and Government Code of the State of California, and this code.
C. Penalties for Infractions. Any violation of this chapter may be charged as an infraction at the discretion of the prosecutor. Infractions may be abated as a nuisance or enforced and punished as prescribed in this code, Penal Code and Government Code of the State of California.
D. For Civil Actions. In addition to other penalties and remedies permitted in Chapters 1.08, 1.10, 8.72 and 15.32 PMC, a violation of this chapter may result in the filing of a civil action by the City. The following may also be awarded without monetary limitations in any civil action:
1. Injunctive relief;
2. Costs to investigate, inspect, monitor, survey, or litigate;
3. Costs to place or remove soils or erosion control materials, costs to correct any violation, and costs to restore environmental damage or to end any other adverse effects of a violation;
4. Compensatory damages for losses to the City or any other plaintiff caused by violations; and/or restitution to third parties for losses caused by violations;
5. Civil penalties;
6. Reasonable attorney fees; and
7. Fines assessed against the City by the RWQCB.
As part of a civil action filed by the City to enforce provisions of this chapter, a court may assess a civil penalty in the maximum amount permitted by law per violation of this chapter for each day during which any violation of any provision of this chapter is committed, continued, permitted, or maintained by such person(s).
In determining the amount of any civil liability to be imposed pursuant to this chapter, the court shall take into consideration the nature, circumstances, extent and gravity of the violation or violations, whether any discharge caused by the violation is susceptible to cleanup or abatement, and, with respect to the violator, the ability to pay, the effect on ability to continue in business, any voluntary cleanup efforts undertaken, any prior history of violations, the degree of culpability, economic savings, if any, resulting from the violation, and such other matters as justice may require.
E. Penalties and Remedies Not Exclusive. Penalties and remedies under this section may be cumulative and in addition to other administrative, civil or criminal remedies. (Ord. 827 § 2 (Exh. 1), 2019; Ord. 775 § 3, 2015)