Chapter 13.12 SURFACE WATER MANAGEMENT

A. The purpose of this chapter is to promote sound development guidelines and construction procedures which respect and observe the city’s watercourses; to minimize water quality degradation and control the sedimentation of creeks, streams, ponds and other water bodies; to protect property owners adjacent to developing and developed land from increased runoff rates which could cause erosion of abutting property; to protect downstream owners; to preserve and enhance the suitability of waters for recreation; to preserve and enhance the aesthetic quality of the waters; to maintain and protect ground water resources; to minimize adverse effects of alterations in ground water quantities, locations and flow patterns; to ensure the safety of public roads and rights-of-way; and to decrease drainage-related damage to public and private property.

B. This chapter is enacted pursuant to the police power of the city to protect and preserve the public health, safety and general welfare and in compliance with the Federal Clean Water Act (33 U.S.C. Section 1251 et seq.) and the requirements of the city’s National Pollution Discharge Elimination System (NPDES) Phase II permit issued by the Washington State Department of Ecology. Its provisions shall be liberally construed to accomplish the purposes of the program and the protection and preservation of the public health, safety and general welfare.

C. It is the intent of this chapter to provide for and to promote the public health, safety and general welfare of the citizens and not to create or otherwise establish or designate any particular class or group of persons who will or should be specially protected or benefited. This chapter shall not be construed to create any specific rights in any individual nor to create any duty owed by the city toward any individual or class of persons.

D. It is the intent of this chapter to place the obligation of compliance with the requirements of this chapter upon the owner and/or operator of a stormwater facility, whether public or private. Nothing contained in this chapter is intended to be nor shall it be construed to create or form the basis for liability on the part of the city, or its officers, employees or agents, for any injury to persons or damage to property resulting or arising from the act, omission or failure of the owner or operator of any stormwater facility to comply with the provisions of the program, or by reason or in consequence of any act or omission in connection with the implementation or enforcement of this chapter by the city, or their officers, employees or agents. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.020 Authority of the city.

The city, by and through the director, shall have the authority to:

A. Develop, adopt, carry out and enforce administrative procedures as needed to implement the program and to carry out other responsibilities of the city.

B. Prepare and update, as needed, engineering standards to establish minimum requirements for the design and construction of the stormwater system and requirements for protecting existing stormwater facilities during construction. The engineering standards shall be consistent with this chapter and adopted city policies.

C. Administer and enforce this chapter and all procedures relating to the planning, acquisition, design, construction, alteration, inspection, and regulation of the stormwater system.

D. Prepare, update, administer and enforce maintenance standards to establish minimum requirements for the maintenance of stormwater facilities so they function as intended, including but not limited to protecting water quality, limiting discharge quantity, and providing flood control.

E. Develop and implement a program that includes administration, inspection and enforcement of private stormwater facilities to ensure compliance with this chapter.

F. Establish and implement programs to protect and maintain water quality and to manage stormwater within the stormwater system in order to maintain compliance, to the maximum extent possible, with applicable water quality standards established by the city, or by state or federal agencies, as now or hereafter adopted.

G. Carry out such other responsibilities as may be required by this chapter or other city ordinances or regulations relating to stormwater.

H. Conduct public education programs related to the protection and enhancement of the drainage system.

I. Delegate, as appropriate, the authority granted under this chapter to meet the goals and purposes of this chapter.

J. Take any emergency or other action as determined appropriate by the director to operate, repair, safeguard and/or protect the drainage system.

K. Coordinate as necessary or advisable with private and public stakeholders, and federal, state, county, city and regional governments. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.030 Definitions.

Words and phrases when used in this chapter shall have the meanings as defined in Chapter 17.08, Definitions. Words not defined shall have their usual meanings as commonly understood. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.040 Ecology Manual adopted.

The city hereby adopts the thresholds, definitions, minimum requirements and exceptions, adjustment and variance criteria found in Appendix I of the NPDES Phase II Municipal Stormwater Permit, including the mandatory incorporated provisions of the Ecology Manual. Authority is hereby delegated to the director to adopt such administrative changes or amendments to the Ecology Manual as necessary or appropriate to conform to local circumstances; provided, that such changes and amendments shall be consistent with the purpose and intent of this chapter and in no case be less stringent than currently adopted standards. The director shall at all times maintain and make available for public inspection the Ecology Manual, as amended. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.050 Establishment of regional facilities.

In the event that public benefits would accrue due to modification of the drainage plan for the subject property to better implement the recommendations of the adopted storm drainage study, the director may recommend that the city should assume responsibility for the design, construction, operation and maintenance of the drainage facilities, or any increment of the facilities on the subject property. Should establishment of a regional detention facility at a location not contained in the subject property entail a greater public benefit, the director may require the applicant to participate in the cost of such an off-site regional detention facility in lieu of constructing on-site detention facilities. Such decision shall be made concurrently with review and approval of the plan as specified in Section 13.12.160. In the event that the city decides to assume responsibility for all or any portion of the design, construction, operation and maintenance of the facilities, the applicant will be required to contribute a pro rata share to the construction and maintenance cost of the facilities. The applicant may be required to supply additional information at the request of the director to aid in the determination by the city. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.060 Emergency disaster plan.

The city shall prepare and update an emergency plan, as may be necessary or appropriate, and shall present such plan for review and adoption by the city council as part of the city’s overall emergency operation or disaster plan. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.070 Studies and basin plans.

The city may, as appropriate or necessary, conduct studies and develop basin plans for review and adoption by the city council. Basin plans shall be developed according to adopted engineering standards. Once a basin plan has been adopted and implemented, such plan shall supersede the requirements of this chapter; provided, that the basin plan and basin-specific requirements provide an equal or greater level of water quality and stormwater control protection. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.080 Discharge of polluting matter—Illicit connections—Prohibited.

A. Prohibited Discharges. No person shall throw, drain, or otherwise discharge, cause or allow others under its control to throw, drain or otherwise discharge into the municipal storm drain system and/or surface and ground waters any materials other than stormwater, or nonstormwater discharges specifically addressed in this section. Examples of prohibited 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/or solvents.

12. Drain cleaners.

13. Pesticides, herbicides, or fertilizers.

14. Steam cleaning wastes.

15. Soaps, detergents, or ammonia.

16. Swimming pool or spa filter backwash.

17. Chlorine, bromine, or 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. Lawn clippings, leaves, or branches.

26. Silt, sediment, concrete, cement or gravel.

27. Dyes.

28. Chemicals not normally found in uncontaminated water.

29. Any other process-associated discharge except as otherwise allowed in this section.

30. Any hazardous material or waste not listed in this subsection A.

B. Allowable Discharges. The following types of discharges shall not be considered illegal discharges for the purposes of this chapter unless the director determines that the type of discharge, whether singly or in combination with others, is causing or is likely to cause pollution of surface water or ground water:

1. Diverted stream flows.

2. Rising ground waters.

3. Uncontaminated ground water infiltration—as defined in 40 CFR 35.2005(20).

4. Uncontaminated pumped ground water.

5. Foundation drains.

6. Air conditioning condensation.

7. Irrigation water from agricultural sources that is commingled with urban stormwater.

8. Springs.

9. Uncontaminated water from crawl space pumps.

10. Footing drains.

11. Nonstormwater discharges covered by and compliant with another NPDES permit.

12. Flows from riparian habitats and wetlands.

13. Discharges from emergency firefighting activities.

C. Conditional Discharges. The following types of discharges shall not be considered illegal discharges for the purposes of this chapter if they meet the stated conditions, or unless the director determines that the type of discharge, whether singly or in combination with others, is causing or is likely to cause pollution of surface water or ground water:

1. Potable water, including water from water line flushing, hyperchlorinated water line flushing, fire hydrant system flushing, and pipeline hydrostatic test water. Planned discharges shall be dechlorinated to a concentration of 0.1 ppm or less, pH-adjusted if necessary, and in volumes and velocities controlled to prevent resuspension of sediments in the stormwater system.

2. Dechlorinated swimming pool, spa, or hot tub discharges. These discharges shall be dechlorinated to a concentration of 0.1 ppm or less, thermally controlled, pH-adjusted and reoxygenated if necessary, and in volumes and velocities controlled to prevent resuspension of sediments in the stormwater system. Swimming pool, spa, or hot tub cleaning water and filter backwash shall not be discharged to the stormwater drainage systems.

3. Street and sidewalk wash water, water used to control dust, and routine external building wash down that does not use detergents are permitted if the amount of street wash and dust control water used is minimized.

4. Nonstormwater discharges covered by another NPDES permit; provided, that the discharger is in full compliance with all requirements of the permit, waiver, or order and other applicable laws and regulations; and provided, that written approval has been granted for any discharge to the storm drain system.

5. Other nonstormwater discharges. The discharges shall be in compliance with the requirements of a stormwater pollution prevention plan (SWPPP) reviewed and approved by the city of Mukilteo, which addresses control of such discharges by applying AKART to prevent contaminants from entering surface or ground water.

D. Prohibition of Illicit Connections.

1. The construction, use, maintenance, or continued existence of illicit connections to the stormwater system is prohibited.

2. This prohibition expressly includes, without limitation, illicit connection made in the past, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection.

3. A person is considered to be in violation of this chapter if the person connects a line conveying sewage to the MS4, or allows such a connection to continue.

4. A person found in violation of this section shall be subject to enforcement as described in Section 13.12.240.

5. The property owner is responsible for correcting any illicit connection found to be coming from the property, including all costs associated with correcting the illicit connection. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.085 Requirement to implement best management practices.

A. Best management practices (BMPs) as specified in the Ecology Manual shall be applied to:

1. Any activity that might result in a prohibited discharge; and

2. Business and commercial entities (including publicly and privately owned institutional, commercial, and industrial sites; multi-family sites; and home based businesses) that have the potential to discharge pollutants into the city’s stormwater drainage system regardless of whether the property is covered under a separate NPDES permit.

a. Pollutants shall be controlled by implementing appropriate source control and/or treatment BMPs as specified in the Ecology Manual.

b. Pollutants associated with land uses or activities not addressed in the Ecology Manual shall be controlled using BMPs reviewed and accepted by the city.

B. If, upon inspection of existing BMPs, the director determines that the BMPs are inadequate at controlling prohibited discharges or pollutants, the director may require any person responsible for a property or premises which is, or may be, the source of a prohibited discharge or pollutant to implement, at their own expense, additional BMPs to prevent the further discharge of prohibited discharges or pollutants into the stormwater drainage system.

C. Failure to implement and maintain such required BMPs shall constitute a violation of this chapter and enforced following the provisions in Section 13.12.240. (Ord. 1458 § 1 (Exh. A), 2022)

13.12.090 Emergency conditions requiring immediate action.

Subject to this chapter, whenever it appears to the director that immediate action is necessary to protect the public health, safety, welfare, environment or public resources, the director or the director’s assignee is authorized to enter at all reasonable times in or upon any property, public or private, for the purpose of inspecting, investigating and correcting such emergency conditions. The director may, without prior notice, order the immediate discontinuance of any activity leading to the emergency condition. The director shall have the authority to determine, implement, and accept any intermediate action addressing the emergency condition pending final resolution, and no such action shall constitute precedence for similar or dissimilar actions in the future. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.100 Ownership of the stormwater system.

A. The city shall own all elements of the public stormwater system; provided, that the terms of this chapter are satisfied as to such elements of the public stormwater system.

B. Public stormwater facilities shall be located in the public rights-of-way or on tracts to which the city has legal and physical access rights.

C. The owner of property on which a private stormwater facility is located shall be deemed the owner of said private stormwater facility, unless ownership has been transferred to another person in accordance with the terms of this chapter.

D. The city may accept ownership of a private stormwater facility only when all of the following conditions are met:

1. A statement is submitted in writing by the owner(s) of the facility to the director, documenting how ownership of the private stormwater facility by the city would provide a public benefit; and

2. The private stormwater facility functions as designed and meets maintenance standards, as determined by the director, or is brought up to applicable standards by the person owning and/or responsible for the private stormwater facility, and is accepted by the director, before transfer of legal rights to the city; and

3. The city has adequate resources to thereafter operate and maintain the private stormwater facility; and

4. Necessary and appropriate legal rights, as determined by the city attorney, are granted to the city and recorded in the Snohomish County auditor’s office by the person owning and/or responsible for the private stormwater facility, all at no cost to the city. Such rights may include but are not limited to permanent access for operation, maintenance, and repair.

E. Except as provided above, the city shall acquire no ownership rights in private stormwater facilities. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.110 Fees for permits and specific services.

Fees for permits and specific services outlined in this chapter shall be determined by city council resolution. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.120 Installation responsibility for new stormwater facilities—Cost.

A. All development within city jurisdiction shall be served by the city stormwater system except where otherwise provided in the Mukilteo Municipal Code. Developers are required to extend the existing system across the full frontage of the property being developed where consistent with city plans, stormwater minimum requirements, and upon approval of construction and conveying or deeding the system so constructed to the city. Joint participation by the city may be applicable where oversizing is deemed appropriate in the city’s comprehensive stormwater plan.

B. Private Installation. The property owner shall be responsible for installation of all new stormwater facilities required by this chapter. Installation shall only be authorized through an approved stormwater permit issued under this chapter.

C. City Installation. The city may, as it determines necessary or advisable and subject to budgetary limitations, install stormwater facilities to facilitate development, coordinate with other city projects, or for other city purposes, and may recover its costs, including interest, through a facility connection charge.

D. Costs. All installation costs shall be the responsibility of the property owner; provided, that if the city requires a property owner to install an oversized stormwater facility, the city will compensate the property owner for the difference in cost between the normally sized facility and the oversized facility based on the lowest of three bids furnished by the property owner from reputable licensed contractors; and provided further, that a property owner who constructs a public stormwater facility or system extension that directly benefits another property may request a latecomer’s agreement under Section 13.12.130. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.130 Latecomer’s agreement—New streets, street extensions, storm sewer and related improvements.

A. Purpose. This section is intended to implement and thereby make available to the city and the public the provisions of Chapters 35.72 and 35.91 RCW as presently constituted or as may be subsequently amended.

B. Application Authorized—Term. Any applicant (developer) utilizing private funds to install street, storm sewer or other related improvements and appurtenances may apply to the city to establish a latecomer’s agreement for recovery of a pro rata share of the cost of constructing said public improvements from the owners of the other properties that will later derive a benefit from said improvements. No reimbursement agreement or latecomer’s agreement under Chapter 35.72 RCW shall extend for a period longer than fifteen years, unless extended in accordance with RCW 35.72.020(2). No reimbursement agreement or latecomer’s agreement under Chapter 35.91 RCW shall extend for a period longer than twenty years, unless extended in accordance with RCW 35.91.020(4). The city council shall have discretion to authorize or not to authorize latecomer’s agreements for other reasons on a case-by-case basis.

C. Rights and Nonliability of City. The city reserves the right to refuse to enter into any latecomer’s agreement or to reject any application therefor at the city’s sole discretion. No latecomer’s agreement shall be legally effective until the city council adopts an ordinance approving the latecomer’s agreement at a public meeting of the city council. All applications for latecomer’s agreements shall be made on the basis that the applicant releases and waives any claims for any liability of the city in the establishment and enforcement of any latecomer’s agreements. The city shall not be responsible for locating any beneficiary or survivor entitled to benefits by or through latecomer’s agreements.

D. Application Requirements. All applications, procedures and policies for latecomer’s agreements shall be approved and established by the mayor or the mayor’s designee and shall be accompanied by all nonrefundable application fees set forth in the city’s land use fee schedule or in any fee schedule subsequently adopted by the city. The latecomer’s agreement application must be submitted for city review prior to city acceptance of the improvements for which reimbursement is sought.

E. Eligibility of Applicants. In order to be eligible to apply for a latecomer’s agreement, the applicant shall be in compliance with all city ordinances, rules and regulations relating to any development application or project associated with the proposed latecomer’s agreement.

F. Procedures for Latecomer’s Agreements.

1. The applicant (developer) proposing to establish a latecomer’s agreement shall submit a preliminary estimate and proposed reimbursement/benefit area (“benefited area”) boundaries as part of the engineering drawings submitted as part of the initial project application. Following utility/street installation/construction and city acceptance of same, the applicant (developer) requesting a latecomer’s agreement shall submit detailed construction plans and drawings for the project together with a site plan, map or diagram of the proposed benefited area, which documents shall be prepared and stamped by a licensed professional civil engineer and which shall identify the proposed boundaries of the benefited area and each separately owned parcel of real property located within the benefited area and the location of the project in relation to all parcels of real property located within the benefited area, and an itemized cost estimate for the entire project based upon the plans of the civil engineer from which reimbursable costs shall be estimated, together with assessor’s reports (including names and mailing addresses) of all real properties within the benefited area, and such other information and documents as the city may require.

2. The applicant (developer) requesting a latecomer’s agreement shall submit, along with the application, the nonrefundable application fee set forth in the city’s land use fee schedule, which application fee shall be applied to the city’s legal, engineering and administrative costs in processing the application for the latecomer’s agreement, which costs shall be included as reimbursable costs in the latecomer’s agreement; provided, that whenever the city’s actual engineering, legal, administrative or other costs exceed the amount of the initial nonrefundable application fee, the applicant shall be required to pay to the city the estimated cost of said excess costs and the city shall not be obligated to continue to process the application until such costs have been paid to the city in full. In addition, the city will charge an eight percent administrative fee for handling each transaction, said fee to be deducted from all latecomer’s fees collected.

3. The mayor or the mayor’s designee will determine the boundaries of the benefited area based upon a determination of which parcels of real property are within the benefited area and which of such parcels will not contribute to the original cost of street and utility system improvements and who may subsequently connect to, drain to or use the same including uses connected to laterals or branches connecting thereto.

4. The mayor or the mayor’s designee, based on information submitted by the applicant with the application for the latecomer’s agreement, will establish an estimate of the pro rata share of costs. The director or the director’s designee may require the applicant to supply the city with engineering costs and/or competitive construction bids prior to the establishment of the estimate.

5. The director or the director’s designee, at the director’s discretion, shall have the right to require the applicant to pay, in advance, the costs of an appraiser retained by the city to assist the director or the director’s designee in formulating the assessment reimbursement area and the estimate of the proration of costs.

6. Prior to the execution of a contract with the applicant for a latecomer’s agreement, the mayor or the mayor’s designee shall deliver by certified mail a notice required by the applicable state law to all property owners within the benefited area stating the preliminary boundaries of the benefited area and pro rata share of assessments for costs of the project, and stating that each property owner has the right to request a public hearing to be held before the city council to consider the application for the latecomer’s agreement, including the preliminary boundary of the benefited area and preliminary assessment of costs to the affected property owners. If no hearing is requested, the city council may consider and take final action on the latecomer’s agreement at any public meeting held more than twenty days after notice was mailed to the affected property owners. If the city receives a request for a public hearing, a public hearing will be held by the city council thereafter, with notice of the public hearing given to all affected property owners at least twenty days in advance of the hearing. At the hearing, the city council shall determine whether to accept, reject or modify the proposed latecomer’s agreement, or any provision thereof, including but not limited to the boundaries or proration of costs. If the city council accepts the latecomer’s agreement, the council shall establish the boundaries of the benefited area; provided, that the city council may only modify the boundary of the benefited area upon prior notice to the owners of the property affected by the modification. The decision of the city council shall be final and determinative.

7. The latecomer’s agreement shall have no legal effect and shall be null and void unless it is recorded with the Snohomish County auditor within thirty days of the final execution of the agreement. It shall be the sole responsibility of the applicant for the latecomer’s agreement to record said agreement at the latecomer’s expense.

8. Once recorded, the latecomer’s agreement shall be binding on all owners of record of all real properties located within the benefited area who are not party to the latecomer’s agreement.

9. Every two years from the date the contract is executed a property owner entitled to reimbursement under this section shall provide the appropriate county, city, or town with information regarding the current contract name, address, and telephone number of the person, company, or partnership that originally entered into the contract. If the property owner fails to comply with the notification requirements of this subsection within sixty days of the specified time, then the contracting county, city, or town may collect any reimbursement funds owed to the property owner under the contract. Such funds must be deposited in the capital fund of the county, city, or town.

10. The city reserves the right to participate in these agreements.

11. The city shall neither issue a building permit nor similar development permit or approval unless the city has received full payment of the assessment applicable to the property connecting to or using the street and/or utility system improvements constructed by the applicant (developer); provided, if the validity of the latecomer’s agreement is challenged, the city reserves the right to issue a permit, approval or permission without liability or prejudice to the city, and without prejudice to any other rights or remedies available to the applicant (developer) under this section or otherwise at law or in equity.

12. Segregation. The director shall, upon the request of any property owner within the benefited area, segregate the assessment among portions of a particular parcel that is legally subdivided. The segregation shall be based upon the same factors applied when the assessments were originally established. The property owner seeking segregation of the assessment shall pay all costs to record the segregation as well as an administrative fee to the city based upon a segregation fee schedule to be established by the city from time to time. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.140 Right-of-way use permit.

A right-of-way use permit shall be required before work in the right-of-way can commence. See requirements in Chapter 12.04 and requirements stated in the development standards. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.150 Connections or modifications to the stormwater system.

Connections to or modifications of the stormwater system, including but not limited to modifying stormwater discharge patterns or constructing or relocating facilities for the treatment, detention, or conveyance of stormwater, shall be allowed only if:

A. Prior written approval has been received from the city; and

B. All applicable requirements of this chapter and city procedures have been met; and

C. All applicable engineering standards have been met or alternative standards have been approved by the city as substantially equal; and

D. The property owner has paid all applicable fees and charges. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.160 Permits and approvals.

A. General.

1. Applications for stormwater permits or approvals under this chapter shall be made by the property owner on forms provided by the city and shall include all fees and information required by the city. Agents for a property owner must have proof of authority and be licensed by the city and properly bonded (if applicable).

2. Stormwater permits shall require the property owner to build all the stormwater facilities needed to serve the property, including but not limited to on-site stormwater management BMPs, conveyance systems, detention/retention facilities, and other system components, and shall incorporate stormwater treatment BMPs.

3. When a stormwater permit is required to relocate a stormwater facility from under a proposed building, the building permit shall not be approved until the work to relocate the stormwater facility has been completed and accepted by the city, unless the building permit is expressly conditioned by the director to require relocation and approval of the relocated stormwater facility prior to commencement of site construction.

B. Applicability—Stormwater Permit. A stormwater permit as defined in Chapter 17.08 shall be required to construct stormwater facilities and/or to make any additions, repairs or connections to an existing stormwater facility, including connecting to the city’s stormwater infrastructure.

1. The applicant shall have an approved stormwater permit prior to, or in conjunction with, the issuance of any of the following permits and approvals:

a. Right-of-way use permit;

b. Building permit;

c. Grading permit;

d. Subdivision approval;

e. Short subdivision approval;

f. Conditional use permit; or

g. Substantial development permit and other permits, approvals, or letters of exemption required under Chapter 90.58 RCW (the Shoreline Management Act).

2. Projects that propose connecting to the city’s existing stormwater system, but are not required to meet Stormwater Minimum Requirement No. 1 of the Ecology Manual, shall submit a scaled drawing in lieu of a stormwater site plan and shall submit a Construction Stormwater Pollution Prevention Plan (SWPPP).

3. The city may require additional information during the permit review process. The previous stormwater site plan submittals may be resubmitted; provided, that all additional required information is shown.

C. Submittal Requirements.

1. Stormwater Permit Application. All applicants required to submit a stormwater permit application pursuant to this chapter shall include the following:

a. City standard engineering application form;

b. Stormwater site plan, if Stormwater Minimum Requirement No. 1 applies to the project. Applicants not required to meet this requirement shall submit a scaled drawing. See subsection (C)(2) of this section for requirements regarding stormwater site plans;

c. Construction Stormwater Pollution Prevention Plan (SWPPP), to be presented as a stand-alone document. All elements in the Ecology Manual shall be addressed in the SWPPP;

d. Evidence of recording of applicable easements, in accordance with subsection F of this section; and

e. All applicable reports, administrative notices, and plan sets.

f. Other Permits. The property owner shall be responsible to identify and obtain all other permits and/or approvals required for any proposed work, including but not limited to approvals from the Washington State Department of Fish and Wildlife, the Washington State Department of Ecology, the Army Corps of Engineers, the U.S. Fish and Wildlife Service, BNSF, and the city.

2. Stormwater Site Plan.

a. Applicants for projects that meet the threshold for the Ecology Manual Stormwater Minimum Requirement No. 1 shall submit a stormwater site plan delineating surface and pertinent subsurface water flows entering, flowing within, and leaving the subject property both during and after construction, including an evaluation of the drainage network one-quarter mile downstream of the project site. All criteria in the Ecology Manual and development standards shall be met. In addition, the following are required as part of the stormwater site plan:

i. General site plan including scale, topographical contours, property lines, structures, roads, wells, utilities, streams, wetlands and buffers, and any recorded easements; and

ii. Civil drawings including engineered grading and drainage plans; and

iii. Other supporting reports and documents, as may be necessary for the project.

D. Stormwater Minimum Requirements. The drainage improvements submitted by the applicant in the stormwater site plan shall satisfy the stormwater minimum requirements found in the Ecology Manual and the following:

1. All new and redevelopment projects shall comply with the hard surface maximums listed in Section 17.20.028.

2. All new and redevelopment projects shall comply with the stormwater minimum requirements of the Ecology Manual and the development standards that are applicable to the project, as determined by the thresholds identified in the Ecology Manual.

3. The stormwater minimum requirements vary depending on the project type and size. The thresholds to determine applicability of stormwater minimum requirements are identified in the Ecology Manual.

4. All additional stormwater minimum requirements identified in the development standards.

5. A property owner may seek an exception from the stormwater minimum requirements by following the process outlined in subsection H of this section.

E. Stormwater System Engineering and Design Requirements.

1. Adoption of Engineering Standards. The director shall prepare and update, as needed, engineering standards to establish minimum requirements for the design and construction of the stormwater system and requirements for protecting existing stormwater facilities during construction. The engineering standards shall be consistent with this chapter, the Ecology Manual, and adopted city policies.

2. Applicability. The engineering and design requirements set forth in this section, the development standards, and the Ecology Manual shall apply to all new development and redevelopment. In the event of a conflict, the most protective standard(s) shall apply.

3. General Requirements. The following requirements shall apply to all new development or redevelopment:

a. The property owner shall prepare all required designs in accordance with this chapter.

b. Source control BMPs and stormwater treatment BMPs shall be utilized whenever land use changes are proposed or occur that could generate pollutants that would constitute a threat to human health, welfare, or the environment.

c. All engineering and design work required under this chapter shall be prepared by a civil engineer licensed in the state of Washington, unless this requirement is waived in writing by the director.

d. Engineering and design work shall conform to the engineering standards, Ecology Manual requirements, and generally accepted engineering practices as determined by the director.

e. The director may impose requirements that differ from the requirements of this section if a basin plan or other study adopted by the city identifies the need for such requirements and identifies alternative requirements that provide an equal or greater level of protection than the requirements of this section.

f. Subject to approval by the director, a property owner may contribute to stormwater facilities that serve multiple sites in lieu of providing such facility(ies) on site.

g. A property owner may seek a deviation from the development standards by making a written request to the director, as required in subsection G of this section. A full list of criteria for a deviation request is included in the development standards.

F. Easements and Covenants.

1. Easement Applicability. An easement (or other form of legal document) satisfactory to the city attorney is required:

a. When any portion of the public system is constructed on private property; or

b. When a private stormwater facility will be built on property owned by a different private party; or

c. When any portion of the facility will serve two or more properties; or

d. When a new facility proposes to use an existing outfall, and that outfall is not on the property owned by the permit applicant.

2. Easement Requirements. All of the following requirements shall be met before the city will accept and approve any easement for access:

a. The grantor shall have clear title to the property or interest to be conveyed; and

b. The easement shall contain provisions for repair, maintenance, and replacement and clearly identify responsible parties, financial obligations, roles and responsibilities, unless deemed unnecessary by the director; and

c. The easement shall prohibit all structures within the easement area except those that can readily be removed by the property owner at the owner’s expense when access to the stormwater facility is required by the city. An agreement to remove the structures on request by the city, approved by the city attorney, shall be included in the easement. If such existing structures are within the easement area, they shall be removed prior to the recording of the easement; and

d. Permanent easement widths shall be a minimum of twenty feet for utilities, except that an easement as narrow as fifteen feet may be allowed under special conditions as determined by the director. Construction easement shall be thirty feet minimum in total width, and shall encompass the permanent easement width. When trench depths dictate or where pipe diameter or vault widths exceed four feet, a wider easement may be required by the director.

e. For easements between two private parties, the developer shall submit as part of the stormwater permit application a signed, notarized notice of intent to execute the easement, signed by all affected parties. The notice of intent shall include a draft of the easement.

3. City Access Easement. For construction of any new private stormwater facilities, the property owner shall grant the city an access easement, satisfactory to the city attorney, allowing inspection by the city to verify the maintenance condition of the stormwater facility and allowing the city, without obligation, the ability to correct any deficiency not cured by the owner in a timely manner at the owner’s expense.

4. Recording. The developer shall record the easement(s) with the Snohomish County’s auditor’s office no later than satisfactory completion of the work. A conformed copy shall be provided to the city prior to issuance of the final permit.

5. Costs. The property owner shall pay all costs of preparing, reviewing and recording of the easement or other document.

6. Relinquishment of Easement. An easement granted to the city may be relinquished by the city only if the city determines it is no longer needed for the public benefit and the city council authorizes the relinquishment.

7. Covenants. All plans shall include a covenant for maintenance of permanent stormwater improvements. The covenant shall identify the party responsible for maintenance, a site plan showing the stormwater infrastructure, authority to access property, and the maintenance requirements. A signed covenant and maintenance plan shall be submitted with the permit application. The covenant must satisfy the requirements found in Stormwater Minimum Requirement No. 9 of the Ecology Manual. The covenant shall be recorded with the Snohomish County auditor’s office. A conformed copy shall be provided to the city prior to issuance of the final permit.

G. Deviations from Development Standards.

1. Deviation Process. Situations may arise where alternatives to the development standards may better accommodate existing conditions or allow for more cost-effective solutions. In such case, a deviation may be granted by the director or the director’s designee. The developer shall submit a written request on the alternate materials, methods, or modifications request form, and must include plans that are completed by the project design engineer, accompanied by the appropriate review fee.

2. Any deviation request shall include a statement describing how all the criteria outlined in the development standards are met.

3. Reconsideration. The director or the director’s designee reserves the right to approve or deny a deviation from the development standards at any time in the interest of public health, safety, and welfare. Any request for reconsideration for deviations requests denied or approved must be directed to the public works director within thirty days from the date of the director’s decision.

H. Exceptions to Stormwater Minimum Requirements.

1. Exception Process. A property owner may seek an exception to the requirements of subsection D of this section by submitting an exception application with the required application fee. If a public hearing is required to approve a development proposal for which an exception under this chapter is requested, the hearing and the request for exception shall be combined; otherwise, the request for exception shall be reviewed as a Type I administrative decision under Chapter 17.13. The director may require an applicant to provide additional information at the applicant’s expense, including but not limited to an engineer’s report or analysis.

2. Criteria for Granting Exception. The property owner shall bear the burden of proof for any requested exception. In order to grant the exception, the director or other reviewing body must find that application of the minimum requirements imposes a severe and unexpected economic hardship on the project applicant. The director or other reviewing body must also make written findings of fact including the following:

a. The current (pre-project) use of the site; and

b. How the application of the minimum requirement(s) restricts the proposed use of the site compared to the restrictions that existed prior to the adoption of the minimum requirements; and

c. The possible remaining uses of the site if the exception were not granted; and the uses of the site that would have been allowed prior to the adoption of the minimum requirements; and

d. A comparison of the estimated amount and percentage of value loss as a result of the minimum requirements versus the estimated amount and percentage of value loss as a result of requirements that existed prior to adoption of the minimum requirements; and

e. The feasibility for the owner to alter the project to apply the minimum requirements; and

f. The exception will not increase risk to the public health and welfare, nor be injurious to other properties in the vicinity and/or downstream, and to the quality of the waters of the state; and

g. The exception is the least possible exception that could be granted to comply with the intent of the minimum requirements.

3. Type I decisions regarding exceptions to the stormwater minimum requirements may be appealed to the hearing examiner according to the appeals process in Chapter 17.13. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.170 Bonds and liability insurance required.

A. Performance Bond. The director is authorized to require applicants constructing any storm drainage facilities, including but not limited to retention, detention, infiltration and/or other drainage treatment/abatement facilities, to post a performance bond(s) which includes site stabilization and erosion control, at a rate of one hundred fifty percent of the engineer’s estimated cost of construction. The performance bond shall be submitted prior to final project approval as a guarantee to the city that improvements will be installed in a satisfactory manner. Where such applicants have previously posted, or are required to post, other such bonds on the facility itself or on other construction related to the facility, such person may, with the permission of the director and to the extent allowable by law, combine all such bonds into a single bond; provided, that at no time shall the amount thus bonded be less than the total amount which would have been required in the form of separate bonds; and provided further, that such a bond shall on its face clearly delineate those separate bonds which it is intended to replace.

B. Maintenance Bonds. After satisfactory completion of the facilities and release of the performance bond, if it was required by the city, the applicant constructing the facility shall commence a two-year period of satisfactory maintenance of the facility. A maintenance bond to be used at the discretion of the director, to correct deficiencies in said maintenance affecting public health, safety and welfare must be posted and maintained throughout the two-year maintenance period. The amount of the maintenance bond shall be fifteen percent of the construction cost of the drainage facilities. In addition, the maintenance bond shall cover the cost of design defects and/or failure in workmanship of the facilities throughout the two-year maintenance period.

C. Liability Policy. The person constructing the facility shall maintain a liability policy in an amount to be determined by the city which shall name the city of Mukilteo as an additional insured and which shall protect the city from any liability for any accident, negligence, failure of the facility, of any other liability whatsoever, relating to the construction or maintenance of the facility. The liability policy shall be submitted to the city prior to permit issuance. The liability policy shall be maintained for the duration of the facility by the owner of the facility; provided, that in the case of facilities assumed by the city for maintenance, the liability policy shall be terminated when the city maintenance responsibility commences. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.180 Construction inspections.

All projects involving construction of new stormwater facilities or connections to or modifications of existing stormwater facilities shall be subject to city inspection to ensure compliance with the approved plans and any related conditions of permit issuance or project approval. Issuance of any such permit or project approval shall constitute consent by the property owner or other responsible person for all inspections by the city. Newly installed stormwater facilities shall be inspected and tested according to the adopted development standards. All documentation associated with inspections and testing shall meet the requirements of the development standards and permit conditions and be submitted and accepted by the city prior to final approval. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009)

13.12.185 Warranty inspections and tests.

A. Reinspection. Stormwater facilities and equipment accepted by the city under specific warranties may be reinspected at the city’s discretion.

B. Repair and Retest. If deficiencies are found upon inspection, the stormwater facilities and equipment shall be repaired by the developer and retested prior to the expiration of the warranty period and final acceptance/ownership by the city.

C. Warranty Transfer. Whenever possible, the developer shall assign to the city any warranties applicable to the stormwater facility, if the ownership is transferred to the city prior to the warranty period expiration. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016)

13.12.190 Applicability to government entities.

A. All municipal corporations and governmental entities shall be required to submit a stormwater site plan and comply with the terms of this chapter when developing and/or improving land including, but not limited to, road building and widening, buildings, facilities and parking lots within areas of the city.

B. It is recognized that many other city, county, state and federal permit conditions may apply to the proposed action. Although compliance with the provisions of this chapter may not constitute compliance with such other requirements, the city shall attempt to resolve discrepancies in order to avoid unequal enforcement. In all cases, however, the most stringent standards shall be presumed to be applicable. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009. Formerly 13.12.260)

13.12.200 Construction of stormwater facilities.

A. General. All construction or modification of a stormwater facility shall comply with this chapter, the Ecology Manual, the city’s development standards, the approved stormwater permit, the approved plans and specifications, the recommendations of the manufacturer of the materials or equipment used, and any applicable local, state or federal requirements.

B. Failure to Complete Work or Meet Requirements.

1. The city may continue to work on, or may complete construction of, a stormwater facility, or take steps to restore a site (e.g., backfilling trenches, or restoring the public right-of-way) if:

a. The work does not meet city requirements;

b. The contractor or person doing the work fails to correct or rectify the condition or work following notification by the city; and

c. The work, in the reasonable opinion of the director, constitutes a hazard to public safety, health or the stormwater system.

2. Costs incurred by the city pursuant to this subsection shall be calculated and charged to the property owner or contractor in charge of such work. The property owner shall pay the city within three days of delivery of written notification to the responsible party or posting of written notification at the location of the work. Such costs shall constitute a civil debt owed to the city jointly and severally by the persons identified in the notice. The debt shall constitute a lien against the property and may be collected in the same manner as any other civil debt owing to the city. Without limiting the foregoing, if a bond, surety or other assurance device has been posted for the project, the city may collect the debt from said bond, surety or other device.

C. Authorized Stormwater Facility Construction. Only the following persons shall be authorized to install stormwater facilities:

1. Drainage connection contractors or other contractors who are properly licensed.

2. Property owners working on their own property; provided, that they have met the requirements of this chapter.

3. Contractors currently under contract with the city if approved for the work by the city.

4. Contractors who have received approval from the city to connect roof and footing drains to an existing stub under an appropriate city permit.

D. Posting of Stormwater Permit. If a stormwater permit is required, the permit shall be readily available at the job site for inspection by the city.

E. Location of Connection. Connection to the stormwater system shall be made at a point approved in writing by the city.

F. As-Built Drawings. An as-built plan of the stormwater facilities on the site shall be completed in accordance with the city’s development standards, and shall be accepted by the city prior to the city’s acceptance of the improvements, issuance of a certificate of occupancy or final sign-off by the city. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009. Formerly 13.12.270)

13.12.210 Maintenance, repair and operation of the stormwater system.

A. Public Stormwater Facilities. The city shall be responsible for operating, maintaining, repairing and replacing public stormwater facilities and the public stormwater system.

B. Private Stormwater Facilities. Every property owner and/or person responsible for a private stormwater facility shall be responsible for operating, maintaining, repairing and replacing any private stormwater facility located on said property or under their control. Upon written notice by the city, a private stormwater facility shall be promptly repaired and/or brought up to applicable standards by the property owner or the person responsible for said facility. If a private stormwater facility serves multiple lots and the responsibility for maintenance has not been specified on a subdivision plat, short plat or other legal document, maintenance, operation and repair responsibility shall rest with the homeowners’ association, if one exists, or otherwise with the properties served by the facility, or finally, with the owners of the property on which the facilities are located.

C. Assumption of Maintenance Responsibility by City. The city may, at its sole discretion, agree to assume the maintenance of a private stormwater facility; provided, that the city may not agree to maintain any private stormwater facility unless all of the following conditions are met to the director’s satisfaction:

1. Maintenance of the facility by the city would provide a public benefit; and

2. Necessary and appropriate property rights and access are provided to the city in accordance with this chapter; and

3. The city has adequate resources, now and in the foreseeable future, to maintain the facility; and

4. At the time the maintenance of the facility is assumed by the city, the facility is in good repair and order, and is functioning in the manner that was intended when designed; and

5. Owners requesting city assumption under this section shall submit a statement supporting criteria in subsections (C)(1) through (4) of this section; and

6. The director has obtained a binding agreement, satisfactory to the city attorney, describing the terms and conditions under which the private facility shall be maintained by the city.

Unless directly caused by the sole negligence of the city, the city shall not be responsible for repair or replacement of failed structures, parts, or components of a private stormwater facility (even if the city has accepted the maintenance of said facility), nor for maintenance or rehabilitation of vegetation (except as may be needed, in the city’s sole discretion, for the detention and/or water quality function of the facility). Following assumption by the city of the maintenance of a private stormwater facility, the private property owner(s) shall continue to be responsible for the entire costs of any repair to and/or replacement of the facility.

D. New Private Stormwater Facilities. In new subdivisions, short plats, and binding site plans, operation and maintenance responsibility for private stormwater facilities shall be specified on the face of the subdivision, short plat or binding site plan to the satisfaction of the director before final approval of the subdivision, short plat or binding site plan may be granted.

E. Maintenance Standards. Stormwater facilities shall be maintained so that they function as designed and intended. Maintenance shall be performed in accordance with the city’s maintenance standards and in accordance with the project operation and maintenance plan, if one is developed pursuant to this chapter.

F. Maintenance and Correction of Drainage Problem by City.

1. When the director determines that the failure to maintain stormwater facilities necessitates an immediate action to remedy an imminent threat to public health, welfare and water quality, the city may perform the necessary construction or remedial work. No notice shall be required under such circumstances. The property owner, the property owners’ association, or project proponent shall be responsible for all costs associated with the work.

2. The director may order the removal, correction or replacement of any improperly constructed or maintained storm drainage or erosion control system that the director has previously reviewed and approved. The property owner, the property owner’s association, or project proponent shall be responsible for all costs associated with the removal, construction or replacement.

3. The property owner, the property owners’ association, and project proponent are jointly and severally liable for all costs, including a reasonable attorney’s fee, incurred in any remedial action performed by the city under this chapter. The city may record a lien on the property owned by such jointly and severally liable entities for payment of costs plus reasonable attorney’s fees. Interest shall accrue on costs and fees at the same rate as for real estate tax delinquencies and shall commence on the date of completion of remedial action.

4. The city assumes no liability for performing any action authorized under this section nor does the city take on responsibility for future maintenance or repair associated with such action. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009. Formerly 13.12.280)

13.12.220 Inspections.

A. Authority. The director is authorized to establish inspection programs. Inspection programs may include, but are not limited to:

1. Routine inspections;

2. Random inspections;

3. Inspections based upon complaints or other notice of possible violations;

4. Inspection of drainage basins or areas identified as higher than typical sources of sediment or other pollutant or pollutants;

5. Inspection of any potential pollution generating sources on all public and private properties within the city; and

6. Joint inspection with other agencies inspecting under environmental or safety laws.

B. Right of Entry. An authorized representative of the city may enter private property at all reasonable times for the purpose of activities pursuant to this chapter. Activities may include inspection, technical assistance, sampling, testing, examination, abatement, copying of records and the performance of any other duties as defined by state and federal law or imposed by this chapter. Entry shall be authorized; provided, that the city first obtain permission from the property owner or person responsible for the premises upon presentation of proper credentials to that person. If entry is refused or cannot be obtained, the director shall have recourse to every remedy provided by law to secure entry, including but not limited to obtaining an administrative warrant for entry. The city shall at all times have the right to access property which is covered by an easement granted for the purposes of such access.

C. Right of Entry in Emergency. In the event of an emergency presenting a threat to public health or safety and requiring immediate action by the director under this chapter, the director may enter onto any property without obtaining consent; provided, that as soon as practicable thereafter, the director shall advise the property owner or other responsible person of such entry.

D. The city will perform inspections only if shoring and other site conditions conform with Washington Industrial Safety and Health Act (WISHA) safety standards and other safety requirements, as applicable.

E. Inspection of Private Stormwater Facilities. The city shall have the authority to periodically inspect private stormwater facilities for compliance with this chapter. Such inspections may include the following activities:

1. Inspection, sampling, and testing of any constructed stormwater facility for the purpose of determining compliance with standards for inspection, maintenance, or repair adopted by the director and applicable to the facility;

2. Investigation of the integrity of any constructed stormwater facility components using any appropriate test deemed necessary, including, but not limited to, dye or smoke testing or video surveys;

3. Creation of records reasonably necessary to document conditions related to compliance with the standards described above, including but not limited to photographs, video, measurements and drawings; and

4. Inspection and copying of nonconfidential records relating to inspection, maintenance, or repair of the constructed stormwater facilities.

F. Inspections and Investigations of Prohibited Stormwater Discharges and Pollutants. The city shall have the authority to inspect sources of prohibited stormwater discharges and pollutants and BMPs. Inspections may include, but are not limited to:

1. Examination of vehicles, trailers, tanks, or mobile or stationary equipment which could cause a prohibited discharge;

2. Inspection, sampling, and testing any area, discharge, material, or drainage facility for the purpose of determining the potential for contribution of pollutants to drainage facilities or waters of the state;

3. Screening for and/or tracking illicit discharges or illicit connections;

4. Inspecting land uses and potential pollution generating activities to ensure that appropriate source control BMPs are implemented and maintained;

5. Investigation of the integrity of drainage facilities on the premises using appropriate tests including but not limited to dye or smoke testing or video surveys;

6. Creating records reasonably necessary to document conditions related to stormwater pollution or BMPs implemented on the premises, including but not limited to photographs, video, measurements and drawings; and

7. Inspection and copying of nonconfidential records relating to site activity or processes presently or previously occurring, including but not limited to safety data sheets, stormwater pollution prevention plans, spill response plans, hazardous waste manifests, drainage inspection records, state or federal stormwater permits, or other records related to prohibited connections or discharges.

G. The director shall have the right to set up devices on any premises as are necessary in the director’s opinion to conduct monitoring or sampling of discharge from stormwater facilities.

H. The director has the right to require the property owner to install monitoring equipment as necessary to ensure compliance with this chapter. Sampling and monitoring equipment shall be maintained at all times in a safe and proper operating condition at the property owner’s expense. All devices used to measure stormwater flow and water quality shall be calibrated to ensure their accuracy.

I. Any temporary or permanent obstruction to the safe and easy access to the premises and any stormwater facility to be inspected and/or sampled shall be promptly removed by the property owner at the written or oral request of the director. The director may follow up oral requests with written requests if the obstruction is not removed. Such obstructions shall not be replaced. The costs of removing obstructions shall be borne by the property owner. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009. Formerly 13.12.290)

13.12.230 Demolition or removal of structures.

No structure or stormwater facility connected to the stormwater system shall be altered, removed, demolished, or otherwise interfered with unless the following steps are first taken:

A. Obtain permission from the city after notifying the city in writing and completing the required application for review and approval at least ten days prior to commencement of any work.

B. Verify the location of the existing on-site drainage facilities.

C. Cap connections that are no longer needed.

D. Provide, as necessary and to the extent determined by the director, alternate means of disposing, treating, and controlling stormwater.

E. Comply with the requirements of this chapter and any other conditions imposed by the director or other city departments. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009. Formerly 13.12.300)

13.12.240 Enforcement.

The director is authorized to enforce the provisions of this chapter utilizing the procedures as outlined below.

A. Notice and Order to Cease Violation.

1. Whenever the director has reason to believe that a condition exists in violation of this chapter, rules, regulations or standards required hereunder, the director may cause a notice and order to be issued to either the owner or operator of the source of the violation, the person in possession of the property where the violation originates and/or the person otherwise causing or responsible for the violation, which may include an order to immediately cease the activity causing the violation or take another action to abate the violation.

2. The notice and order shall include the following information:

a. The name(s) of the person(s) determined to be responsible for the violation and/or the owner of the property where the violation is occurring or did occur;

b. The address or legal description of the real property on which the violation exists or occurred;

c. A description of the conditions found to be in violation, including the specific provision of this chapter which has been violated;

d. If applicable, a brief description of any activity which is causing the violation to exist or occur;

e. A statement of the corrective action required to be taken. If a director has determined that corrective work is required, the order shall require that all required permits be secured, that work physically be commenced and that the work be completed within such times as the director determines are reasonable under the circumstances;

f. The amount of monetary penalty imposed due to the violation and the date by which payment must be made;

g. The signature and written name of the city official issuing the notice and order;

h. The contact information for the city’s designated contact person or office to which questions regarding the notice and order may be directed;

i. The date of the notice and order; and

j. Notice of the right to contest the notice and order as provided in subsection F of this section.

3. A notice and order may be amended at any time to correct clerical errors. An amendment made pursuant to this subsection shall not affect the validity or effective date of the original notice and order.

4. The notice and order shall be served upon all persons identified in the notice and order by one of the following methods:

a. By personal service;

b. By certified mail, sent to the last known address of the all persons identified in the notice and order; or

c. If the address of all persons identified in the notice and order is unknown, by posting a copy of the notice and order in a conspicuous place at the site of the violation.

B. Warning Notice as Alternative to Notice and Order.

1. As an alternative to issuing a notice and order, the director may issue a warning notice to the owner or operator of the source of the violation, the person in possession of the property where the violation originates and/or the person otherwise causing or responsible for the violation of this chapter if, in the opinion of the director, the apparent violation can be voluntarily corrected within a reasonable amount of time. A warning notice is a communication by the director containing recommended actions that may be taken by the person(s) responsible for an apparent violation in order to potentially avoid the issuance of a notice and order.

2. The warning notice shall include the following information:

a. The name(s) of the person(s) determined to be responsible for the apparent violation;

b. The address or legal description of the real property on which the apparent violation exists or has occurred;

c. A description of the apparent violation, including the specific provision of this chapter which appears to have been violated;

d. If applicable, a brief description of any activity which is causing the apparent violation to exist or occur;

e. A description of any recommended corrective action;

f. A deadline by which corrective action should be completed in order to avoid issuance of a notice and order;

g. The signature and written name of the city official issuing the warning notice;

h. The contact information for the city’s designated contact person or office to which questions regarding the warning notice may be directed;

i. The date of the warning notice.

3. A warning notice may be amended at any time to correct clerical errors. An amendment made pursuant to this subsection shall not affect the validity or effective date of the original warning notice.

4. The warning notice shall be served upon the responsible person(s) by one of the following methods:

a. By personal service;

b. By certified mail, sent to the last known address of the responsible person(s); or

c. If the address of the responsible person(s) is unknown, by posting a copy of the warning notice in a conspicuous place at the site of the apparent violation.

5. The recipient(s) of a warning notice shall respond to the notice within thirty calendar days from the date of receiving the notice, unless the notice specifies a different time period. The recipient(s) may respond to a warning notice once in any of the following ways:

a. Cure the Apparent Violation in a Timely Manner. The recipient(s) of a warning notice may cure the apparent violation described in the notice within the time period specified in the notice. In such event, the recipient shall promptly notify the city when the apparent violation has been cured, and the city shall promptly inspect the site for compliance.

b. Request for Alternative Corrective Action. The recipient(s) of a warning notice may submit a written request to the city proposing an alternative to the city’s recommended corrective action to cure the apparent violation. The request shall describe the proposed alternative correction action and how it is functionally equivalent to the corrective action recommended by the city. The director may agree to the request for an alternative corrective action. The director’s decision to grant, deny, or partially grant a request for an alternative corrective action shall be in writing. If the violation is not cured, the director may issue a notice and order as provided in subsection A of this section.

c. Request Additional Time. The recipient(s) of a warning notice may submit a written request to the city requesting additional time to cure the apparent violation. Any such request shall explain why the circumstances surrounding the apparent violation support the request for additional time. The request shall propose a timeline or schedule pursuant to which the responsible person(s) will cure the apparent violation. The director may agree to a reasonable proposal requesting additional time. The director’s decision to grant, deny, or partially grant a request for additional time shall be in writing. If the violation is not cured by the new deadline, the director may issue a notice and order as provided in subsection A of this section.

d. Contest the Warning Notice. The recipient(s) of a warning notice may contest the accuracy, validity, or appropriateness of the notice by requesting the director amend the warning by providing a written request to the director within thirty calendar days from the date of receiving the warning notice. Any such request is limited to one opportunity.

6. The director may issue a notice and order for a violation of this chapter irrespective of any previous issuance of a warning notice regarding the violation.

C. Monetary Penalties and Costs.

1. Whenever a violation of this chapter occurs, the director may impose a monetary penalty upon the person(s) responsible for the violation. The amount of such monetary penalty shall be calculated pursuant to this subsection, and set forth in a notice and order issued pursuant to subsection A of this section.

2. Monetary penalties shall be determined as follows:

a. The base amount of monetary penalty shall be $5,000 per violation for a constructed stormwater facility found to be in violation of this chapter or standards required hereunder. If there are multiple problems with the same constructed stormwater facility, said problems shall be treated as a single violation for purposes of calculating the amount of base penalty imposed. If more than one constructed stormwater control facility is located on a particular property, a five thousand dollar base penalty shall be imposed for each constructed stormwater facility that is in violation of this chapter.

b. The base amount of monetary penalties for violations resulting in the discharge of pollutants and/or prohibited discharges, or failure to implement and properly maintain required source control BMPs, shall be determined by the director by reference to the penalty criteria contained in subsection D of this section and the penalty schedule contained in subsection E of this section. For repeat violators and repeat violations, the base penalty amount resulting from this calculation shall be doubled.

3. In addition to the base penalty amount, the person(s) responsible for a violation may also be required to reimburse the city for the costs incurred by the city in investigating the violation and enforcing remediation of the violation, including any laboratory costs. If the full amount of reimbursable costs incurred by the city due to a particular violation is not known at the time an original notice and order is issued, a revised notice and order including such costs in the monetary penalty may be issued to the responsible person(s) once said costs are known.

4. If there is more than one person responsible for a given violation, all responsible persons shall be jointly and severally liable to the city for the entire amount of monetary penalties imposed with respect to the violation.

D. Criteria for Determining Amount of Monetary Penalty.

1. The director shall evaluate the five criteria listed in this subsection in determining the appropriate amount of monetary penalty to impose for a particular violation of subsection (C)(2)(b) of this section:

a. Public health risk from the violation;

b. Environmental damage from the violation;

c. Willful or knowing violation;

d. Economic benefit accruing to responsible person(s) from noncompliance; and

e. Responsiveness of responsible person(s) in correcting violation.

2. For each penalty criterion described in subsection (D)(1) of this section, the director shall assign a point score between zero and three that reflects the severity of the violation in the context of the criterion. The director may use the following narrative descriptions as guidance in assigning point scores.

a. Public health risk—Did/does the violation pose a health risk to humans or animals?

(1) Zero points—There is little or no health risk resulting from the violation.

(2) One point—A possibility of sickness exists from exposure to the violation.

(3) Two points—Serious illness is a concern resulting from the violation.

(4) Three points—Very serious illness and possible long-term health concerns result from the violation.

b. Environmental damage—Has the condition damaged the environment?

(1) Zero points—Little or no environmental damage occurred as a result of the violation.

(2) One point—Minor environmental damage due to the violation can be inferred from the evidence.

(3) Two points—The environmental damage resulting from the violation requires moderate restoration to be done.

(4) Three points—The scope of the environmental damage resulting from the violation requires large scale restoration.

c. Willful or knowing—Is there evidence to support a claim that the violation resulted from a willful or knowing act?

(1) Zero points—The violation was not due to a willful or knowing act.

(2) One point—Evidence supports a claim that the violation could be the result of a willful or knowing act.

(3) Two points—Highly probable that the violation resulted from a willful or knowing act.

(4) Three points—No question that the violation definitely resulted from a willful or knowing act.

d. Economic benefit from noncompliance—Did the violation result in an economic benefit to the responsible person(s)?

(1) Zero points—Little or no economic benefit resulted from the violation.

(2) One point—There could have been an economic benefit from the violation, but it cannot be determined.

(3) Two points—There was a direct economic benefit from the violation, but the amount of the benefit could not be determined.

(4) Three points—A direct economic benefit resulted from the violation, the amount could be approximated and it was significant.

e. Responsiveness—Is/was the responsible person responsive in correcting the violation?

(1) Zero points—No advance notice of violation or no deadlines for compliance established.

(2) One point—Showed good effort to correct the violation when notified.

(3) Two points—Made minor efforts but did nothing substantial to correct the violation.

(4) Three points—No attempt made to cooperate or correct the violation.

3. After assigning point values to each of the criteria set forth in subsection (D)(2) of this section, the director shall sum the point values to obtain the total point value for the violation at issue. Total point value shall be translated into the applicable base penalty amount by reference to subsection (E)(1) of this section.

E. Monetary Penalty Schedule.

1. The total point value for the violation at issue obtained from subsection (D)(2) shall be used to determine the appropriate base penalty amount in the chart below:

Total Number of Points	Amount of Base Penalty
0—2 points	$300
2—4 points	$400
5 points	$550
6 points	$700
7 points	$900
8 points	$1,100
9 points	$1,500
10 points	$2,000
11—12 points	$2,500
13+ points	$3,000

2. Pursuant to subsection (C)(2)(b) of this section, if the violation is a repeat violation or if the violator is a repeat violator, the applicable base penalty amount listed in the chart above shall be doubled.

3. Pursuant to subsection (C)(3) of this section, any costs incurred by the city in investigating and enforcing the violation may, at the discretion of the director, be added to the base penalty amount obtained above.

F. Response to Notice and Order.

1. The recipient(s) of a notice and order shall respond to the notice and order within thirty calendar days from the date of receiving the notice and order, unless the notice and order specifies a longer time period. The recipient(s) may respond to a notice and order in any of the following ways:

a. Cure the Violation in a Timely Manner. The recipient(s) of a notice and order may cure the violation described in the notice and order within the time period specified in the notice and order. In such event, the recipient shall promptly notify the city when the violation has been cured, and the city shall promptly inspect the site for compliance. If the city determines the violation has been timely cured, the monetary penalty specified in the notice and order may be partially or fully waived, at the discretion of the director, as provided in subsection (L)(1)(b) of this section.

b. Request Additional Time. The recipient(s) of a notice and order may submit a written request to the city requesting additional time to cure the violation. Any such request shall explain why the circumstances surrounding the violation support the request for additional time. The request shall propose a timeline or schedule pursuant to which the responsible person(s) will cure the violation. The director may agree to a reasonable proposal requesting additional time. In connection with approving a request for additional time under this subsection, the director may also agree that if the violation is cured by the new deadline, the amount of the monetary penalty specified in the notice and order may be reduced by an appropriate amount, consistent with subsection L of this section. The director’s decision to grant, deny, or partially grant a request for additional time shall be in writing, as shall any associated decision to conditionally reduce the monetary penalty. If the violation is not cured by the new deadline, then any reduction in the amount of monetary penalties granted pursuant to this subsection shall be void and the original amount of monetary penalties specified in the notice and order shall be due and owing.

c. Request a Reduction in the Amount of Monetary Penalty. The recipient(s) of a notice and order may submit a written request to the city requesting a reduction in the amount of the monetary penalty specified in the notice and order. Any such request shall explain why the circumstances surrounding the violation support the request to reduce the amount of the monetary penalty. The director may agree to reduce the amount of the monetary penalty by an appropriate amount, consistent with subsection L of this section, on the condition that the violation must be cured by the deadline specified in the notice and order or such other deadline as the director may deem reasonable. The director’s decision to grant, deny, or partially grant a request for a reduction in the amount of any monetary penalty shall be in writing. If the director’s written decision grants or partially grants a reduction in the amount of a monetary penalty, then the decision shall also specify the deadline by which the violation must be cured in order for the reduction in monetary penalties to be effective. If the violation is not cured by the specified deadline, then any reduction in the amount of monetary penalties granted pursuant to this subsection shall be void and the original amount of monetary penalties specified in the notice and order shall be due and owing.

d. Request Additional Time and a Reduction in the Amount of Monetary Penalty. The recipient(s) of a notice and order may submit a written request to the city requesting both additional time in which to cure the violation and a reduction in the amount of the monetary penalty specified in the notice and order. Any such request shall explain why the circumstances surrounding the violation support both the request for additional time and the request to reduce the amount of the monetary penalty. The request shall propose a timeline or schedule pursuant to which the recipient of the notice and order will cure the violation. The director may agree to a reasonable proposal (a) requesting additional time, and/or (b) to reduce the monetary penalty by an appropriate amount, consistent with subsection L of this section, on the condition that the violation must be cured by the applicable deadline. The director’s decision to grant, deny, or partially grant a request for both additional time and a reduction in the amount of monetary penalties shall be in writing. If the director’s written decision grants or partially grants a reduction in the amount of a monetary penalty, then the decision shall also specify the deadline by which the violation must be cured in order for the reduction in monetary penalties to be effective. If the violation is not cured by the specified deadline, then any reduction in the amount of monetary penalties granted pursuant to this subsection shall be void and the original amount of monetary penalties specified in the notice and order shall be due and owing.

e. Appeal the Notice and Order. The recipient(s) of a notice and order may contest the accuracy, validity, or appropriateness of the notice and order by appealing the notice and order to the hearing examiner within thirty calendar days from the date of receiving the notice and order. Any such appeal must be made in writing and must contain the elements described in Section 17.13.090, except that no filing fee shall be required. The appeal documents shall be delivered directly to the city clerk by mail, personal delivery or other method, as provided in Section 17.13.090.

G. Revised Notice and Order.

1. Consistent with subsection (C)(3) of this section, a revised notice and order may be issued to the person(s) responsible for a violation for the purpose of adjusting the amount of monetary penalty imposed in the original notice and order to include costs incurred by the city in investigating and enforcing remediation of the violation. A revised notice and order shall clearly reference the original notice and order that is being revised. The issuance of a revised notice and order does not affect the validity or issuance date of the original notice and order.

2. The recipient(s) of a revised notice and order shall respond to the revised notice and order in one of the following ways:

a. Pay the Additional Amount of Penalties in a Timely Manner. The recipient(s) of a revised notice and order may pay the increased amount of monetary penalties to the city within the longest of the following time periods: (i) within thirty calendar days of receiving the revised notice and order, (ii) by the deadline specified in the revised notice and order, if any, (iii) by any extended deadline for payment of the original monetary penalty that has been agreed to by the director pursuant to subsection F of this section, or (iv) if the original notice and order was timely appealed, then by the deadline for payment of the original monetary penalty that is specified in the final order resulting from the appeal, as described in subsection I of this section.

b. Contest the Revised Notice and Order. The recipient(s) of a revised notice and order may contest the accuracy, validity, or appropriateness of the increased amount of monetary penalties imposed by the revised notice and order by appealing the revised notice and order to the hearing examiner within thirty calendar days of receiving the revised notice and order. The scope of such appeal shall be strictly limited to the accuracy, validity, and appropriateness of the increased amount of monetary penalties imposed by the revised notice and order. Any such appeal must be made in writing and must contain the elements described in Section 17.13.090, except that no filing fee shall be required. All appeal documents shall be delivered to the city clerk by mail, personal delivery or other method, as provided in Section 17.13.090. If an appeal of the original notice and order is pending with the hearing examiner, the hearing examiner shall have discretion to consolidate the appeals.

c. To the extent applicable, the provisions of subsections H through J of this section shall each apply to a revised notice and order, just as they apply to an original notice and order.

H. Hearing Examiner Process for Appeal of Notice and Order.

1. Except as expressly provided to the contrary in this section, the provisions of Chapter 2.38 and any applicable rules adopted by the hearing examiner shall govern the appeal of a notice and order.

2. Unless an appeal of a notice and order is summarily dismissed by the hearing examiner, the hearing examiner shall hold a public hearing regarding the appeal within sixty business days of the date on which the hearing examiner received the appeal.

3. The hearing examiner shall issue a decision regarding the notice and order within ten days after the conclusion of the hearing.

4. Should the appellant(s) of a notice and order fail to appear at the public hearing regarding the notice and order, the hearing examiner shall issue a decision dismissing the appeal. In that event, the notice and order shall become a final determination of the following: (a) that the violation described in the notice and order occurred; (b) that the person(s) identified in the notice and order as being responsible for the violation are the responsible person(s); and (c) that the amount of any monetary penalty set forth in the notice and order is reasonable and affirmed. For good cause shown, the hearing examiner may set aside a decision entered upon an appellant’s failure to appear.

I. Final Order. A notice and order is considered final if it is not timely appealed. A final order constitutes a conclusive determination that a violation occurred, that the specified person(s) are responsible for the violation, that any monetary penalty imposed is valid and must be paid to the city, and that administrative and judicial options to appeal the determination are exhausted. Unless a different timeline is set forth in the final order or agreed to in writing by the director, the responsible person(s) must comply with a final order within thirty calendar days of the date on which the order becomes final.

J. Failure to Comply with Final Order.

1. If the person(s) responsible for a violation under a final order do not fully comply with the final order within the required time period, the city may take any one or more of the following actions to cause the responsible person(s) to comply:

a. Institute a civil action in any court of competent jurisdiction to enforce the final order, to collect the monetary penalties imposed pursuant to this section, or both;

b. Abate and remediate the violation in accordance with the provisions of this section and other applicable law and charge the costs of such abatement to the responsible person(s) as additional monetary penalties owing under subsection (C)(3) of this section.

c. Cause the responsible person(s) to be criminally prosecuted as provided in subsection L of this section; or

d. Pursue other remedies allowed by law, as outlined in subsection P of this section.

K. Criminal Prosecution.

1. As an alternative to any other judicial or administrative remedy provided in this chapter or by law or other ordinance, any person who willfully or knowingly violates this chapter, or rules and regulations adopted thereunder, or any order issued pursuant to this chapter, or by each act of commission or omission procures, aids or abets such violation, is guilty of a misdemeanor and upon conviction shall be punished as provided in Chapter 1.32, as it now exists or is hereafter amended. Each day such violation continues shall be considered an additional misdemeanor offense.

L. Reduction of Monetary Penalties.

1. Monetary penalties imposed pursuant to this section may be reduced or waived under the circumstances and in the amounts specified below:

a. The director shall waive any monetary penalties, or portions thereof, imposed due to mistake or error of the city.

b. As provided in subsection (F)(1)(a) of this section, the director may partially or fully waive any monetary penalties associated with a violation if the responsible person(s) remediate the violation within the time period specified in the notice and order.

c. Subsection (F)(1)(b) through (d) of this section provide the director with discretion to conditionally reduce the monetary penalties associated with a violation under specified circumstances. The director shall exercise this discretion based on consideration of the facts and circumstances surrounding the violation at issue, including, but not limited to, the severity of the violation, the magnitude of the public interest being protected, and the willingness of the responsible person(s) to correct the violation once made aware of the violation. If the director determines it is appropriate and fair to reduce the monetary penalties associated with a violation, the director shall also have discretion to determine the amount by which monetary penalties should be reduced.

M. No City Liability. Administration or enforcement of this section shall not be construed to impose or create a basis for any liability on the part of the city, its appointed or elected officials, officers, agents, or employees, nor shall this chapter be construed to create any special relationship with or otherwise protect any specific person or class of persons.

N. Immunity from Suit.

1. Any city appointed or elected officials, officers, agents or employees charged with the administration or enforcement of this section acting in good faith and without malice on behalf of the city shall not be personally liable for any damage that may accrue to persons or property as a result of any act required by the city, or by any reason of any act or omission in the discharge of those duties.

2. Any suit brought against city appointed or elected officials, officers, agents or employees because of an act or omission performed in the administration or enforcement of any provision of this section shall be defended by the city subject to the provisions of Chapter 2.26.

O. Compliance with Other Laws. Compliance with this section does not constitute a waiver of the requirements of any other applicable federal, state or local laws and regulations.

P. Additional Remedies.

1. Notwithstanding any other provision of this chapter, whenever the director finds that a violation of this chapter, or rules or regulations adopted hereunder, has created or is creating an unsanitary, dangerous or other condition which, in the director’s judgment, constitutes an immediate hazard, the director may suspend or revoke any permit for which the approval of a drainage plan is required on the project or development where the violation exists and suspend or terminate operations under the permit immediately.

2. The failure or refusal of the city to enforce any provision of this chapter, and as hereafter amended, shall not constitute a waiver or bar to prevent enforcement thereof against any person for a subsequent violation of this chapter, or for any other violation by any other person. (Ord. 1458 § 1 (Exh. A), 2022; Ord. 1390 § 1 (Exh. A) (part), 2016: Ord. 1222 § 2 (Exh. A) (part), 2009. Formerly 13.12.310)