Chapter 13.12 — STORMWATER MANAGEMENT AND DISCHARGE CONTROL

A.

The intent of this chapter is to protect and enhance the water quality in the City of Clayton's watercourses pursuant to, and consistent with the Porter-Cologne Water Quality Control Act (Water Code § 13000 et seq.) and the Federal Clean Water Act (33 U.S.C. Section 1251 et seq.).

B.

This chapter also carries out the conditions in the City's National Pollutant Discharge Elimination System (NPDES) permit that require implementation of appropriate source control and site design measures and stormwater treatment measures for development projects.

C.

It is the purpose of the City Council in enacting this chapter to protect the health, safety and general welfare of Clayton's citizens by:

minimizing non-stormwater discharges, whose pollutants would otherwise degrade the water quality of local streams, to the stormwater system.

minimizing increases in nonpoint source pollution caused by stormwater runoff from development that would otherwise degrade local water quality.

controlling the discharge to the City's stormwater system from spills, dumping or disposal of materials other than stormwater.

reducing stormwater run-off rates and volumes and nonpoint source pollution whenever possible, through stormwater management controls and ensuring that these management controls are properly maintained and pose no threat to public safety.

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

A.

"Best management practices" or "BMP" are structural devices, measures, stormwater management facilities, activities, prohibitions, or practices, general good housekeeping, pollution prevention practices, maintenance procedures and other management practices, to prevent or reduce the discharge of pollutants directly or indirectly to "waters of the United States," including watercourses, water bodies, and wetlands.

B.

"City's NPDES permit" shall mean the NPDES permit issued to the City of Clayton, Permit No. CAS612008, and any subsequent amendment, reissuance or successor to the NPDES permit.

C.

"Construction" shall mean any project, including projects requiring coverage under the General Construction Permit, that involves soil disturbing activities, including but not limited to, clearing, grading, paving, and disturbances to ground such as stockpiling and excavating. Construction sites are also all sites with disturbed or graded land area not protected by vegetation or pavement that are subject to a grading or building permit.

D.

"Development" shall mean construction, rehabilitation, redevelopment or reconstruction of any public or private residential project (whether single-family, multi-unit, or planned unit development) or industrial, commercial, retail or other nonresidential project, including public agency projects.

E.

"Development runoff requirements" shall mean the provisions in the City's NPDES permit that contain performance standards to address both the construction and post-construction phase impacts of new projects and redevelopment projects on stormwater quality, as well as any requirements imposed by the director pursuant to a permit or other regulatory action.

F.

"Director" shall mean the City Manager of the City of Clayton or his or her designee.

G.

"Enforcement officer" or "Officer" shall mean those individuals designated by the director to act as authorized enforcement officers.

H.

"Guidebook" shall mean the most recent version of the Contra Costa Clean Water Program Stormwater C.3. Guidebook.

I.

"Non-stormwater discharge" is any addition of any pollutant to the City's stormwater system, except discharges pursuant to a NPDES permit, or discharges further exempted in Section 13.12.060.C. and D. of this chapter.

J.

"Pollutant" shall mean any material other than stormwater including, but not limited to, petroleum products or by-products, solid waste, incinerator residue, sewage, sewage sludge, garbage, heat, chemical waste, biological materials, radioactive materials, wrecked or discarded equipment, rock, sand, soil and industrial, municipal or agricultural waste discharged into the water or stormwater system.

K.

"Premises" shall mean any land, building, structure, facility, or installation, (including a building's grounds or other appurtenances), and adjacent sidewalks and parking strips.

L.

"Redevelopment" shall mean land disturbing activity that results in the creation, addition, or replacement of exterior impervious area on a site on which some past development has occurred.

M.

"Regional Board" shall mean the California Regional Water Quality Control Board, San Francisco Bay Region.

N.

"Responsible person" shall mean the owner or occupant of any premises or who engages in, permits, or oversees any activity from which there is or may be a non-stormwater discharge or any person who releases pollutants to the City's stormwater system.

O.

"Stormwater" shall mean storm water runoff, snow melt runoff, surface runoff and drainage flow on the surface of the ground resulting from precipitation.

P.

"Stormwater management facility" shall mean any BMP or any device that utilizes detention, retention, filtration, harvest for reuse, evapotranspiration or infiltration to provide treatment (and/or control volume, flows, and durations) of stormwater for purposes of compliance with development runoff requirements.

Q.

"Stormwater control plan" shall mean a plan that meets those criteria contained in the most recent version of the Contra Costa Clean Water Program Stormwater C.3. Guidebook.

R.

"Stormwater system" is that system of facilities by which stormwater may be conveyed to any stream, watercourse, other body of water or wetlands, including flood control channels, any roads with drainage systems, city streets, catch basins, curbs, gutters, ditches, improved channels, storm drains or storm drain system, which are not part of a Publicly Owned Treatment Works ("POTW") as that term is defined in 40 CFR Section 122.2.

The director or his or her designee shall administer this chapter for the City.

This chapter shall be construed consistent with the requirements of the Federal Clean Water Act and amendments thereto or applicable implementing regulations and the City's NPDES permit.

A.

In accordance with thresholds and effective dates in the City's NPDES Permit, every application for a development project, including but not limited to a rezoning, tentative map, parcel map, conditional use permit, variance, site development permit, grading permit, encroachment permit, design review, or building permit that is subject to the development runoff requirements in the City's NPDES permit shall be accompanied by a stormwater control plan that meets the criteria in the most recent version of the Contra Costa Clean Water Program Stormwater C.3. Guidebook.

B.

Implementation of an approved stormwater control plan and submittal of an approved stormwater control operation and maintenance plan by the applicant shall be a condition precedent to a final building inspection or the issuance of a certificate of occupancy for a project subject to this section.

C.

All stormwater management facilities shall be designed in a manner to minimize the need for maintenance and reduce the chances of failure. Design guidelines are outlined in the Guidebook.

D.

All stormwater management facilities shall be maintained according to the Guidebook and the approved stormwater control operation and maintenance plan. The person(s) or organization(s) responsible for maintenance shall be designated in the stormwater control operation and maintenance plan. Unless a different time period is provided for in the plan, those responsible for maintenance shall inspect the stormwater management facility at least annually. The stormwater control operation and maintenance plan shall also describe how the maintenance costs will be funded. Upon the failure of a responsible person to maintain a stormwater management facility in accordance with this chapter or the plan, the City may perform the maintenance and recover its costs from the responsible person as provided in Sections 13.12.100, 13.12.170 and 13.12.180.

E.

A property owner shall, through recorded covenants or easements, provide the City, the Contra Costa Mosquito and Vector Control District, and the Regional Board access to stormwater management facilities for inspections and maintenance.

A.

The discharge of non-stormwater to the City stormwater system is prohibited.

B.

The discharge of stormwater from any premises and any activity that may cause or contribute to prohibited discharge, to a violation of receiving water limitations in the City's NPDES permit, or to a nuisance within the meaning of California Water Code § 13050 is prohibited.

C.

The following discharges are exempt from the prohibition set forth in subsection A. above, unless determined by the director to be a source of pollutants to or from the stormwater system or to receiving waters:

any discharge in compliance with a NPDES permit issued to the discharger.

flows from riparian habitats and wetlands, diverted stream flows, flows from natural springs, rising ground waters, uncontaminated and unpolluted groundwater infiltration, single-family homes' pumped groundwater, foundation drains, and water from crawl space pumps and footing drains, and pumped groundwater from drinking water aquifers.

D.

The following discharges are exempt from the prohibition set forth in subsection (a) above, if and only if the director identifies such discharge as not being a source of any pollutant to the stormwater system or to a receiving water or if control measures required by the director and as set forth in Subsection C.15 of the City's NPDES permit are properly implemented: pumped groundwater from non-drinking-water aquifers; pumped groundwater from other sources, foundation drains, and water from crawl space pumps and footing drains; air conditioning condensate; planned discharges from routine operation and maintenance activities in the potable water distribution system; unplanned discharges from breaks, leaks, overflows, fire hydrant shearing, or emergency flushing of the potable water distribution system; emergency discharges of the potable water distribution system as a result of firefighting, unauthorized hydrant openings, or natural or man-made disasters; individual residential car washing; swimming pool, hot tub, spa, and fountain water discharges, and discharges from irrigation water, landscape irrigation, and lawn or garden watering.

Any discharge that may result in or contribute to a violation of the City's NPDES permit either separately considered or when combined with other discharges, is prohibited. Liability for any such discharge shall be the responsibility of the person causing or responsible for the discharge, and such person shall defend, indemnify and hold harmless the City in any administrative or judicial enforcement action relating to such discharge.

A.

It is unlawful to allow, permit, establish, use, maintain or continue unauthorized drainage connections to the City's stormwater system, or to commence or continue any unauthorized discharges to the City's stormwater system.

B.

No discharge shall cause the following conditions, create a nuisance, adversely affect beneficial uses of waters of the State, or cause or contribute to a violation of any applicable water quality standard for receiving waters:

floating, suspended or deposited macroscopic matter or foam;

bottom deposits or aquatic growth;

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

visible, floating, suspended or deposited oil or products of petroleum origin; or,

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

A.

Generally. Any person owning or operating premises that may contribute pollutants to the City's stormwater system shall undertake best management practices to reduce the potential for pollutants entering the system to the maximum extent practicable. Examples of such premises include, but are not limited to, parking lots, gasoline stations, industrial facilities, and other commercial enterprises. Examples of best management practices include, but are not limited to, those described in publications by the United States Environmental Protection Agency, the California Water Boards, the California Stormwater Quality Association, the Bay Area Stormwater Management Agencies Association, the Contra Costa Clean Water Program, and the City of Clayton.

B.

Litter. No person shall throw, deposit, leave, keep or permit to be thrown, deposited, placed, left or maintained, any refuse, rubbish, garbage or other discarded or abandoned objects, articles or other litter in or upon any street, alley, sidewalk, business place, creek, stormwater system, fountain, pool, lake, stream, river or any other body of water, or upon any public or private parcel of land so that the same might become a pollutant, except in containers or in lawfully established waste disposal facilities.

C.

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

D.

Maintenance of Facilities and Landscaped Areas. Every responsible person shall implement Best Management Practices to minimize the release of pesticides, fertilizers, herbicides, and other related materials used to maintain landscaping and facilities.

E.

Parking Lots, Paved Areas and Related Stormwater Systems. Persons owning, operating or maintaining a paved parking lot, the paved areas of a gasoline station, a paved private street or road, or similar structure, and related stormwater systems shall clean those premises as frequently and thoroughly as practicable in a manner that does not result in the discharge of pollutants to the City's stormwater system. As part of an enforcement action pursuant to this chapter, the director may require installation and maintenance of BMPs to prevent the discharge of trash or other pollutants from private parking lots, streets, roads, and drainage facilities into the stormwater system. Failure or refusal to comply with such a requirement is prohibited and shall constitute a separate violation of this chapter.

F.

Construction Activities. In addition to any other requirement imposed by this chapter, all construction projects shall incorporate site-specific BMPs, which can be a combination of BMPs from the California BMP Handbook, Construction January 2003, the Caltrans Stormwater Quality Handbooks, Construction Site Best Management Practices, the San Francisco Bay Regional Water Quality Control Board Erosion and Sediment Control Field Manual, 2002, the City's NPDES Permit, the City's grading and erosion control ordinance, generally accepted engineering practices for erosion control, and any other conditions required by the director when undertaking construction activities. The director may establish controls on the rate, volume, and duration of stormwater runoff from new developments and redevelopment as may be appropriate to minimize the discharge and transport of pollutants.

G.

Notification of Intent and Compliance with General Permits. Each discharger associated with construction activity or other discharger described in any general stormwater permit addressing discharges, as may be adopted by the United States Environmental Protection Agency, the State Water Resources Control Board, or the Regional Board shall provide the director with the notice of intent, comply with and undertake all other activities required by any general stormwater permit applicable to such dischargers. Each discharger identified in an individual NPDES permit relating to stormwater discharges shall comply with and undertake all activities required by the permit.

H.

Development Runoff Requirements. Every applicant for a new development and redevelopment project subject to the development runoff requirements shall submit a stormwater control plan and implement conditions of approval that reduce stormwater pollutant discharges through the construction, operation and maintenance of treatment measures and other appropriate source control and site design measures. Similarly, increases in runoff volume, flows, and durations shall be managed in accordance with the development runoff requirements.

I.

Stormwater Pollution Prevention Plan. The director may require any business or utility in the City that is engaged in activities that may result in non-stormwater discharges or runoff pollutants to develop and implement a stormwater pollution prevention plan, which must include an employee training program.

Business activities which may require a stormwater pollution prevention plan include maintenance, storage, manufacturing, assembly, equipment operations, vehicle loading, fueling, vehicle maintenance, food handling or processing, or cleanup procedures, carried out partially or wholly out of doors.

J.

Coordination with Hazardous Material Release Response and Inventory Plans. Any business subject to the Hazardous Material Release Response and Inventory Plan, California Health and Safety Code Division 20, Chapter 6.95 (commencing with Section 25500), shall include, in that Plan, provision for compliance with this chapter, including the prohibitions of non-stormwater discharges and the requirement to reduce release of pollutants to the maximum extent practicable.

A.

Generally. The director and officer shall have the authority to enter property and make an inspection to enforce and carry out the provisions of this chapter. Routine or scheduled inspections shall be based upon as reasonable a selection process as may be deemed necessary to carry out the intent of this chapter, including, but not limited to, random sampling or sampling in areas with evidence of stormwater contamination, evidence of the discharge of non-stormwater to the stormwater system, inspection of stormwater treatment and flow-control facilities for proper operation and evidence of routine and corrective maintenance, or similar activities. Inspections may also be conducted in conjunction with routine or scheduled inspections conducted by other public agencies or special districts, including but not limited to the Central Contra Costa Sanitary District, the Contra Costa County Fire Protection District, County Environmental Health Department, the Contra Costa Mosquito and Vector Control District, or the Regional Board. The City Council may by resolution establish a schedule of fees for inspections.

B.

Authority to Sample and Establish Sampling Devices. With the consent of the owner or occupant, or pursuant to a search or inspection warrant, the officer may establish on any property such devices as are reasonably necessary to conduct sampling or metering operations. During all authorized inspections, the officer may take any sample deemed necessary to aid in the pursuit of the inquiry or in the recordation of the activities on site.

C.

Notification of Spills. All persons in charge of the premises or responsible for emergency response for the premises have a responsibility to train premises' personnel and maintain notification procedures to ensure that immediate notification is provided to the City of any suspected, confirmed or unconfirmed release of pollutants creating a risk of non-stormwater discharge into the City stormwater system.

As soon as any person in charge of the premises or responsible for emergency response for the premises has knowledge of any suspected, confirmed or unconfirmed release of non-stormwater discharge entering the City stormwater system, such person shall take all necessary steps to ensure the detection and

containment and clean up of such release and shall notify the City of the occurrence by telephoning the director. This notification requirement is in addition to and not in lieu of other required notifications.

D.

Requirement to Test or Monitor. The officer may require that any person engaged in any activity or owning or operating any premises that may cause or contribute to non-stormwater discharges, undertake such monitoring activities or analysis and furnish such reports as the officer may specify. The burden, including costs of these activities, analysis and reports shall bear a reasonable relationship to the need for the monitoring, analysis and reports and the benefits to be obtained. The recipient of such request shall undertake and provide the monitoring, analysis and reports required.

E.

Cost Recovery. If an inspection pursuant to this section results in an enforcement action, the City may issue an invoice of costs and recover in an enforcement action its reasonable inspection costs.

The violation of any provision of this chapter, or failure to comply with any of the mandatory requirements of this chapter shall constitute a misdemeanor, except that notwithstanding any other provisions of this chapter, any violation constituting a misdemeanor under this chapter may, at the discretion of the director, officer or city attorney, be charged and prosecuted as an infraction.

A.

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

B.

Upon conviction of an infraction, a person shall be subject to payment of a fine, not to exceed the limits set forth in California Government Code § 36900.

Every day that any violation of this chapter shall continue shall constitute a separate offense.

Concealing, aiding or abetting a violation of any provision of this chapter shall constitute a violation of such provision.

Any person who violates any provision of this chapter, or the provisions of any permit issued pursuant to this chapter, or who releases a non-stormwater discharge, or who violates any cease and desist order, prohibition or effluent limitation, may also be in violation of the Federal Clean Water Act or the Porter-

Cologne Act and may be subject to the enforcement provisions of those acts, including civil and criminal penalties. Any enforcement actions authorized pursuant to this chapter may also include notice to the violator of such potential liability pursuant to federal or state law.

In addition to the penalties provided herein, any condition caused or permitted to exist in violation of any of the provisions of this chapter is a threat to the public health, safety and welfare. Such condition is hereby declared and deemed to be a nuisance, which may be abated as provided in Chapter 8.08 of Title 8 (commencing with Section 8.08.010) of this Code including the assessment of the costs of abatement which may be collected at the same time and in the same manner as ordinary municipal taxes as provided by Government Code § 38773.5, and by civil action to abate, enjoin or otherwise compel the cessation of such nuisance by the City Attorney.

A.

In addition to any other remedies provided in this chapter, any violation of this chapter may be enforced by civil action brought by the City. In any such action, the City may seek, as appropriate, any and all of the following remedies:

a temporary restraining order, preliminary injunction and permanent injunction;

an action for an unlawful business practice pursuant to Business and Professions Code § 17206;

B.

Any person violating any provision of this chapter shall be liable for:

reimbursement for the costs of any investigation, inspection or monitoring which led to the discovery of the violation;

costs incurred in removing, correcting, or terminating the adverse effect(s) resulting from the violation;

compensatory damages for the loss of, or destruction to, water quality, wildlife, fish or aquatic life. Costs and damages under this subsection shall be paid to the City and shall be used exclusively for costs associated with monitoring and establishing a stormwater discharge pollution control system and implementing or enforcing the provisions of this chapter;

the cost of maintenance and repair of any BMP or stormwater management facility that is not maintained in accordance with the guidebook or the stormwater control plan;

the reasonable costs of preparing and bringing administrative action under this chapter.

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

A.

In addition to any other remedies provided in this chapter, any violation of this chapter may be enforced by the following administrative remedies:

Notice of Violation. The director or officer may deliver to the owner or occupant of any premises, or to any person responsible for a violation of any provision of this chapter a Notice of Violation in accordance with Chapter 1.14 of Title 1 of this Code. The Notice of Violation shall identify the provision(s) of this chapter or the applicable permit or regulatory order which has been violated and shall state that continued noncompliance may result in additional enforcement actions against the owner, occupant and/or responsible person.

Suspension or Revocation of Permit. The director may suspend or revoke any City-issued permit when it is determined that:

a.

The permittee has violated any term, condition or requirement of the permit or any applicable provision of this chapter; or

b.

The permittee's discharge or the circumstances under which the discharge occurs have changed so that it is no longer appropriate to except the discharge from the prohibitions on prohibited discharge contained within this chapter; or

c.

The permittee fails to comply with any schedule for compliance issued pursuant to this chapter; or

d.

Any regulatory agency, including EPA or a Regional Water Quality Control Board having jurisdiction over the discharge, notifies the City that the discharge should be terminated; or

e.

Any other circumstances where the director determines in his or her sole discretion that continuation of the discharge will result in substantial harm to public health or the environment.

Permit Modification. The director may modify any permit provided that the permittee shall be informed of any change in the permit terms and conditions at least forty-five (45) business days prior to the effective date of the modified permit when it is determined that:

a.

Federal or state law requirements have changed in a manner that necessitates a change in the permit; or

b.

The permittee's discharge or the circumstances under which the discharge occurs have changed so that it is appropriate to modify the permit's terms, conditions or requirements; or

c.

A change to the permit is necessary to ensure compliance with the objectives of this chapter or to protect the quality of receiving waters.

B.

Cease and Desist Order. The director or officer may deliver to the owner or occupant of any premises, or to any person responsible for a violation of any provision of this chapter a Cease and Desist Order. The Cease and Desist Order shall be delivered in accordance with Section 13.12.210. The Cease and Desist Order may direct the recipient to:

Immediately discontinue any action constituting a violation of this chapter;

Immediately contain or divert any flow of non-stormwater off the premises where the flow is occurring in violation of any provision of this chapter;

Clean up the area affected by the violation; and

Implement BMPs necessary to prevent a future violation.

Unless otherwise required under Chapter 1.14, any notice or order to be delivered pursuant to this chapter shall be subject to the following:

A.

The notice or order shall state that the recipient has a right to appeal the matter as set forth in Section 13.12.220 or in Section 1.14.060.

B.

Delivery shall be deemed complete upon personal service to the recipient; deposit in the U.S. mail, postage pre-paid for first class delivery; or facsimile service with confirmation of receipt.

C.

Where the recipient is the owner of the property, the address shall be the address from the most recently issued equalized assessment roll for the property or as otherwise appears in the current records of the City.

D.

Where the owner or occupant of any property cannot be located after the reasonable efforts the notice shall be deemed delivered after posting on the property for a period of ten (10) business days.

Except as provided for a notice of violation under Section 1.14.060, any person aggrieved by the decision of the officer, may file a written appeal to the director within ten (10) days following the date of delivery of the decision. Upon receipt of such request, the director shall request a report and recommendation from the officer and shall set the matter for hearing at the earliest practical date. At said hearing, all evidence and testimony deemed relevant and admissible by the Director shall be considered, and the Director may reject, affirm, or modify the officer's decision. Formal rules of evidence shall not apply. The decisions of the director shall be final. Failure to request a hearing or appear at the hearing shall constitute a waiver and failure to exhaust administrative remedies.

The provisions of Code of Civil Procedure § 1094.5 are applicable to judicial review of determinations made by the director pursuant to this chapter.

(Ord. No. 444, 2013)