Chapter 13.45
WATER QUALITY
Sections:
13.45.020 Discharges into City waters.
13.45.030 Stormwater Pollution Prevention Manual.
13.45.080 Civil penalties for water quality.
13.45.090 Construction – Intent.
13.45.010 Purpose.
A. The purpose of this chapter is to protect the City’s surface and groundwater quality by providing minimum requirements for reducing and controlling the discharge of contaminants. The city council recognizes that water quality degradation can result either directly from one discharge or through the collective impact of many small discharges. Therefore, this chapter prohibits the discharge of contaminants into surface water and stormwater and groundwater, and outlines preventive measures to restrict contaminants from entering such waters. These measures include the implementation of best management practices (BMPs) by the residents of the City.
B. The city council finds this chapter is necessary to protect the health, safety and welfare of the residents of the City and the integrity of the City’s resources for the benefit of all by: minimizing or eliminating water quality degradation; preserving and enhancing the suitability of waters for recreation, fishing, and other beneficial uses; and preserving and enhancing the aesthetic quality and biotic integrity of the water. The city council recognizes that implementation of this chapter is required under the Clean Water Act, 33 U.S.C. 1251 et seq. In meeting the intent of the Clean Water Act, the city council also recognizes the importance of maintaining economic viability while providing necessary environmental protection and believes this chapter helps achieve both goals. [Ord. 16-0428 § 10 (Att. F).]
13.45.020 Discharges into City waters.
A. It is unlawful for any person to discharge any contaminants into surface water and stormwater or groundwater. Contaminants include, but are not limited to, the following:
1. Trash or debris;
2. Construction materials;
3. Petroleum products including but not limited to oil, gasoline, grease, fuel oil, and heating oil;
4. Antifreeze and other automotive products;
5. Metals in either particulate or dissolved form;
6. Flammable or explosive materials;
7. Radioactive material;
8. Batteries;
9. Acids, alkalis, or bases;
10. Paints, stains, resins, lacquers, or varnishes;
11. Degreasers and solvents;
12. Drain cleaners;
13. Pesticides, herbicides, or fertilizers;
14. Steam cleaning wastes;
15. Soaps, detergents, or ammonia;
16. Swimming pool backwash;
17. Chlorine, bromine, and other disinfectants;
18. Heated water;
19. Domestic animal wastes;
20. Sewage;
21. Recreational vehicle waste;
22. Animal carcasses;
23. Food wastes;
24. Bark and other fibrous materials;
25. Collected lawn clippings, leaves, or branches;
26. Silt, sediment, or gravel;
27. Dyes (except as stated in subsection (E)(1) of this section);
28. Chemicals not normally found in uncontaminated water; and
29. Any hazardous material or waste not listed above.
B. Any connection, identified by the city manager, that could convey anything not composed entirely of surface water and stormwater directly to surface water and stormwater or groundwater is an illicit connection and is prohibited, with the following exceptions:
1. Connections conveying allowable discharges;
2. Connections conveying discharges pursuant to an NPDES permit (other than an NPDES stormwater permit) or a State waste discharge permit; and
3. Connections conveying effluent from on-site sewage disposal systems to subsurface soils.
C. This section applies to certain business and residential activities that have the potential to contribute pollutants to stormwater runoff or directly to receiving waters. To prevent a prohibited discharge, BMPs from the Stormwater Pollution Prevention Manual, or supplemental BMPs as determined necessary by the city manager, shall be applied to the activities identified in the Stormwater Pollution Prevention Manual. Examples of common activities identified in the Stormwater Pollution Prevention Manual that might result in prohibited discharges include, but are not limited to, the following:
1. Potable water line flushing;
2. Dust control with water;
3. Automobile and boat washing;
4. Pavement and building washing;
5. Swimming pool and hot tub maintenance;
6. Vehicle and equipment repair and maintenance;
7. Building repair and maintenance;
8. Landscaping activities and vegetation management;
9. Hazardous waste handling;
10. Solid and food waste handling; and
11. Application of pesticides or other chemicals (other than landscaping maintenance).
D. The following types of discharges shall not be considered prohibited discharges for the purpose of this chapter unless the city manager determines that the type of discharge, whether singly or in combination with other discharges, is causing significant contamination of surface water and stormwater or groundwater:
1. Spring water;
2. Diverted stream flows;
3. Uncontaminated water from crawl space pumps, foundation drains, or footing drains;
4. Pumped groundwater flows that are uncontaminated;
5. Materials placed as part of an approved habitat restoration or bank stabilization project;
6. Natural uncontaminated surface water or groundwater;
7. Flows from riparian habitats and wetlands;
8. Collected rainwater that is uncontaminated;
9. Uncontaminated groundwater that seeps into or otherwise enters stormwater conveyance systems;
10. Air conditioning condensation;
11. Irrigation water from agricultural sources that is commingled with stormwater runoff; and
12. Other types of discharges as determined by the city manager.
E. Exceptions.
1. Dye testing is allowable but requires verbal notification to the city manager at least one day prior to the date of test.
2. A person does not violate subsections A and B of this section if:
a. That person has properly designed, constructed, implemented and is properly maintaining BMPs, and is carrying out AKART as required by this chapter, but contaminants continue to enter surface water and stormwater or groundwater; or
b. That person can demonstrate that there are no additional contaminants being discharged from the site above the background conditions of the water entering the site.
3. A person who, under subsection (E)(2) of this section, is not in violation of subsections A and B of this section is still liable for any prohibited discharges through illicit connections, dumping, spills, or other discharges not addressed by BMPs satisfying subsection (E)(2) of this section that allow contaminants to enter surface water and stormwater or groundwater.
4. Emergency response activities or other actions that must be undertaken immediately or within a time too short to allow full compliance with this chapter in order to avoid an imminent threat to public health or safety shall be exempt from this section. The city manager may specify actions that qualify for this exception in City procedures. A person undertaking emergency response activities shall take steps to ensure that the discharges resulting from such activities are minimized to the greatest extent possible. In addition, this person shall evaluate BMPs and the site plan, where applicable, to restrict recurrence. [Ord. 16-0428 § 10 (Att. F).]
13.45.030 Stormwater Pollution Prevention Manual.
A. Adoption. The King County Stormwater Pollution Prevention Manual (SPPM), dated July 2021, as modified by subsection B of this section, is hereby adopted and incorporated by reference for use in the City. Revisions of the SPPM by King County shall be applicable in the City only if approved by the city council.
B. Modifications to the Stormwater Pollution Prevention Manual. The city council adopts and incorporates by reference the City of Kenmore Stormwater Pollution Prevention Manual Addendum to the 2021 King County Stormwater Pollution Prevention Manual, as may be amended, for the following purposes:
1. To translate specific wording or reference from King County to the City;
2. To cross-reference City ordinances and City maps in lieu of King County ordinances and maps;
3. To provide a linkage or reference to other City requirements such as more restrictive requirements outlined in basin plans and the City’s critical areas ordinances; and
4. To provide exceptions and additions to the SPPM.
C. Compliance with this chapter shall be achieved through the use of best management practices described in the Stormwater Pollution Prevention Manual. In applying the Stormwater Pollution Prevention Manual, the city manager shall first require the implementation of source control BMPs. If these are not sufficient to prevent contaminants from entering surface water and stormwater or groundwater, the city manager may require implementation of treatment BMPs, as set forth in AKART. The city manager will provide, upon reasonable request, available technical assistance materials and information, and information on outside financial assistance options to persons required to comply with this chapter.
D. In applying the Stormwater Pollution Prevention Manual to prohibited discharges from normal single-family residential activities, the city manager shall use public education and warnings as the primary method of gaining compliance with this chapter and shall not use citations, notice and orders, assessment of civil penalties and fines, or other compliance actions as authorized in Chapter 1.20 KMC, unless the city manager determines:
1. The discharge from a normal single-family residential activity, whether singly or in combination with other discharges, is causing a significant contribution of contaminants to surface water and stormwater or groundwater; or
2. The discharge from a normal single-family residential activity poses a hazard to the public health, safety or welfare, endangers any property or adversely affects the safety and operation of City right-of-way, utilities or other City-owned or maintained property.
E. Persons implementing BMPs through another federal, state, or local program shall not be required to implement the BMPs prescribed in the Stormwater Pollution Prevention Manual, unless the city manager determines the alternative BMPs are ineffective at reducing the discharge of contaminants. If the other program requires the development of a stormwater pollution prevention plan or other best management practices plan, the person shall make their plan available to the City upon request. Persons who qualify for exemptions include, but are not limited to, persons who are:
1. Required to obtain a general or individual NPDES permit from the Washington State Department of Ecology;
2. Implementing and maintaining, as scheduled, a City-approved farm management plan;
3. Implementing BMPs in compliance with Chapter 18.70 KMC;
4. Implementing BMPs in compliance with the management program of the City’s NPDES permit;
5. Engaged in forest practices, with the exception of forest practices occurring on lands platted after January 1, 1960, or on lands being converted to another use, or when regulatory authority is otherwise provided to local government by RCW 76.09.240; or
6. Identified by the city manager as being exempt from this section.
F. Consistent with the council’s direction and intent in adopting the SPPM with the Addendum adopted in subsection B of this section, the department of public works is hereby authorized to develop public rules and make minor changes to said Addendum to better implement the SPPM and Addendum as needed to stay current with changing design, environmental, and construction technology and methods. [Ord. 22-0551 § 2 (Att. B); Ord. 16-0428 § 10 (Att. F).]
13.45.040 Administration.
The city manager is authorized to implement and enforce the provisions of this chapter. The city manager is authorized to promulgate and adopt administrative rules and regulations for the purpose of implementing and enforcing the provisions of this chapter. [Ord. 16-0428 § 10 (Att. F).]
13.45.045 Right of entry.
A. In addition to granted right of entry in emergency circumstances within KMC 13.45.060, City management can appoint right of entry through the circumstances involving the following circumstances:
1. City officials may enter onto and inspect and investigate properties or facilities to determine compliance with this chapter if:
a. The City has the right to enter onto the property or facility for purposes of inspection pursuant to an easement, covenant, license, search warrant or other instrument; or
b. The owner, occupant or operator of the property, or another person having apparent control or authority over the property, grants the City permission to enter and perform an inspection.
2. City officials shall have the right to inspect and copy any property records that are required by, or that relate to, compliance with the terms and conditions of these regulations. City officials shall have the right to set up on the property such devices as are necessary to conduct sampling, inspection, compliance monitoring, and/or metering operations. If the City performs investigations and tests to enforce this chapter, the City may recover the costs of such investigations and tests from the individual(s) responsible for the violation, as authorized herein. [Ord. 22-0551 § 2 (Att. B).]
13.45.050 Enforcement.
A. The city manager is authorized to carry out enforcement actions pursuant to the enforcement and penalty provisions of this chapter, Chapters 1.15 and 1.20 KMC, and other enforcement provisions adopted by rule.
B. The city manager shall use public education, warnings, technical assistance and the implementation of BMPs and, when necessary, AKART, as the primary methods of gaining compliance with this chapter, unless the city manager determines a violation is a result of a flagrant act that should be addressed through immediate penalties or poses a hazard as defined in KMC 13.45.060, Hazards.
C. The city manager shall develop and implement additional enforcement procedures. These procedures shall indicate how the City will investigate and respond to reports or instances of noncompliance with this chapter and shall identify by title the official(s) responsible for implementing the enforcement procedures.
D. The city manager is authorized to make such inspections and take such actions as may be required to enforce the provisions of this chapter.
1. The city manager may observe BMPs or examine or sample surface water and stormwater or groundwater as often as may be necessary to determine compliance with this chapter. Whenever an inspection of a property is made, the findings shall be recorded and a copy of the inspection findings shall be furnished to the owner or the person in charge of the property after the conclusion of the investigation and completion of the inspection findings. The person in violation of this chapter shall be responsible for all costs and expenses related to the City’s sampling, examination, analysis, application of BMPs authorized herein and/or abatement of the violation.
2. When the city manager has made a determination under subsection (D)(1) of this section that any person is violating this chapter, the city manager may require the violator to sample and analyze any discharge, surface water and stormwater, groundwater, and/or sediment, in accordance with sampling and analytical procedures or requirements determined by the city manager. If the violator is required to complete this sampling and analysis, a copy of the analysis shall be provided to the city manager. The person in violation of this chapter shall be responsible for all costs and expenses related to the sampling, examination, analysis, application of BMPs required by the city manager and/or abatement of the violation.
E. In addition to any other penalty or method of enforcement, the City may bring actions for injunctive or other relief to enforce this chapter. [Ord. 16-0428 § 10 (Att. F).]
13.45.060 Hazards.
A. Whenever the city manager determines that any violation of this chapter poses a hazard to public health, safety, or welfare, endangers any property, or adversely affects the safety and operation of City right-of-way, utilities, and/or other property owned or maintained by the City, the person holding title to the subject property, and/or other person or agent in control of said property, upon receipt of notice in writing from the city manager, shall within the period specified therein address the cause of the hazardous situation in conformance with the requirements of this chapter.
B. Notwithstanding any other provisions of this chapter, whenever it appears to the city manager that conditions covered by this chapter exist requiring immediate action to protect the public health and/or safety, the city manager is authorized to enter at all times in or upon any such property, public or private, for the purpose of inspecting and investigating such emergency conditions. The city manager, without prior notice, may order the immediate discontinuance of any activity leading to the emergency condition. Failure to comply with such order shall constitute a misdemeanor. [Ord. 16-0428 § 10 (Att. F).]
13.45.070 Criminal penalty.
Any willful violation of an order issued pursuant to KMC 13.45.050 or 13.45.060 for which a criminal penalty is not prescribed by State law is a misdemeanor. [Ord. 16-0428 § 10 (Att. F).]
13.45.080 Civil penalties for water quality.
The enforcement provisions for water quality are intended to encourage compliance with this chapter. To achieve this, violators will be required to take corrective action and comply with the requirements of this chapter, and may be required to pay a civil penalty for the redress of ecological, recreational, and economic values lost or damaged due to their unlawful action.
A. The provisions in this section are in addition to and not in lieu of any other penalty, sanction or right of action provided by law.
B. Any person in violation of this chapter may be subject to civil penalties assessed as follows:
1. An amount reasonably determined by the city manager to be equivalent to the economic benefit the violator derives from the violation as measured by the greater of the resulting increase in market value of the property or business value received by the violator, or savings of construction or retrofitting costs realized by the violator performing any act in violation of this chapter; and
2. An amount, not to exceed $25,000, that is reasonably based upon the nature and gravity of the violation and the cost to the City of enforcing this chapter against the violator.
C. Any person who, through an act of commission or omission, aids or abets in a violation shall be considered to have committed the violation for the purposes of the civil penalty.
D. Each violator is jointly and severally liable for a violation of this chapter. The city manager may take enforcement action, in whole or in part, against any violator. The decisions whether to take enforcement action, what type of action to take, and which person to take action against are all entirely within the city manager’s discretion. Factors to be used in taking such enforcement actions shall be:
1. Awareness of the violation;
2. Ability to correct the violation;
3. Cooperation with government agencies; and
4. Degree of impact or potential threat to water or sediment quality, human health, or the environment.
E. In the event more than one person is determined to have violated the provisions of this chapter, all applicable civil penalties may be imposed against each person, and recoverable damages, costs, and expenses may be allocated among the persons on any equitable basis. Factors that may be considered in determining an equitable allocation include:
1. Awareness of the violation;
2. Ability to correct the violation;
3. Ability to pay damages, costs, and expenses;
4. Cooperation with government agencies; and
5. Degree of impact or potential threat to water or sediment quality, human health, or the environment.
F. The city manager may engage in mitigation discussions with the violator. The city manager may reduce the penalties based upon one or more of the following mitigating factors:
1. The person responded to City attempts to contact the person and cooperated with efforts to correct the violation;
2. The person showed due diligence and/or substantial progress in correcting the violation; or
3. An unknown person was the primary cause of the violation.
Payment of a monetary penalty pursuant to this chapter does not relieve the person of the duty to correct the violation.
G. All civil penalties recovered during the enforcement of this chapter under Chapter 1.20 KMC shall be deposited into a fund of the City and shall be used for the protection of surface water and stormwater or groundwater as set forth in this chapter, through education or enhanced implementation. [Ord. 16-0428 § 10 (Att. F).]
13.45.090 Construction – Intent.
A. This chapter is enacted as an exercise of the City’s power to protect and preserve the public health, safety and welfare. Its provision shall be exempted from the rule of strict construction and shall be liberally construed to give full effect to the objectives and purposes for which it was enacted. This chapter is not enacted to create or otherwise establish or designate any particular class or group of persons who will or should be especially protected or benefited by the terms of this chapter.
B. The primary obligation of compliance with this chapter is placed upon the person holding title to the property. Nothing contained in this chapter is intended to be or shall be construed to create or form a basis for liability for the City, its officers, employees or agents, for any injury or damage resulting from the failure of the person holding title to the property to comply with the provisions of this chapter, or by reason or in consequence of any act or omission in connection with the implementation or enforcement of this chapter by the City, its officers, employees or agents. [Ord. 16-0428 § 10 (Att. F).]
13.45.100 Penalty.
Except as provided in KMC 13.45.080(B)(1) and (2) for civil penalties, any person violating any of the provisions of this chapter may be subject to the general penalty and enforcement provisions in this chapter and Chapters 1.15 and 1.20 KMC. [Ord. 16-0428 § 10 (Att. F).]