Fremont Municipal Code Art. I Title, Purpose and General Provisions

This chapter shall be known as the “city of Fremont stormwater management and discharge control ordinance” and may be so cited. (Ord. 01-2021 § 1, 2-2-21.)

The purpose of this chapter is to provide regulations and give legal effect to certain requirements of the National Pollutant Discharge Elimination System (NPDES) Permit No. CAS612008 issued to the city of Fremont, regarding municipal stormwater and urban runoff requirements. This chapter shall apply to all water entering the storm drain system generated on any developed and undeveloped lands lying within the city. This chapter shall be construed to assure consistency with the requirements of the Clean Water Act and Porter-Cologne Act and any applicable implementing regulations, as they exist at the time of enactment or as later amended. (Ord. 01-2021 § 1, 2-2-21.)

(a) This chapter shall apply to:

(1) Ministerial as well as discretionary approvals of development located on applicable sites and regulated projects for new development or significant redevelopment projects, as those terms are defined in this chapter;

(2) Dischargers at applicable sites which have been found to, or may be reasonably considered to, cause or contribute to pollution of stormwater runoff associated with commercial or industrial activity or illegal connections and other illicit discharges.

(b) Nothing in this chapter shall be interpreted to:

(1) Infringe any right or power guaranteed by the California Constitution, including any vested property right; or

(2) Require any action inconsistent with any applicable and lawfully adopted general plan, specific plan, vesting tentative map or building code that conforms to the laws of California and the requirements of this chapter. (Ord. 01-2021 § 1, 2-2-21.)

This chapter shall be administered jointly by the departments of community development, public works, and the division of environmental services. Any powers granted to or duties imposed upon these designated individuals to administer, implement and enforce the provisions of this chapter may be delegated to other city personnel or city contracted personnel. (Ord. 01-2021 § 1, 2-2-21.)

For the purposes of this chapter the following words and phrases shall have the meanings given to them in this section. Words and phrases not defined in this chapter shall have the definitions set forth in the permit or by the regulations implementing the National Pollutant Discharge Elimination System, Clean Water Act Section 402, and Division 7 of the California Water Code, as they currently exist or may be amended.

(a) “Applicable site” means any site that could reasonably be considered to cause or contribute to pollution of stormwater runoff. This definition includes, but is not limited to, pollutant sources associated with outdoor process and manufacturing areas, outdoor material storage areas, outdoor waste storage and disposal areas, outdoor vehicle and equipment storage and maintenance areas, outdoor parking areas and access roads, outdoor wash areas, outdoor drainage from indoor areas, rooftop equipment, contaminated and erodible surface areas, and other sources determined to have a reasonable potential to contribute to pollution of stormwater runoff.

(b) “Authorized enforcement official” means the director of public works, the director of community development, or the director of community services and their designees.

(c) “Bank” means any embankment, dike, levee, wall or similar feature of a natural or manmade origin which adjoins or parallels any watercourse and which has as a function the confinement of the water of said watercourse.

(d) “Best management practices (BMP)” means a structural device, measure, facility, or activity that helps to achieve stormwater management control objectives at a regulated project or applicable site.

(1) “Maintenance of a best management practice or stormwater treatment system” means periodic action taken to maintain the as-designed performance of best management practice or stormwater treatment system, and includes, but is not limited to, repairs as necessary and replacement of the best management practice or stormwater treatment system by an equally effective or more effective best management practice or stormwater treatment system.

(2) “Source control best management practice” means any schedule of activities, prohibitions of practices, maintenance procedures, managerial practices or operational practices that aim to prevent stormwater pollution by reducing the potential for contamination at the source of pollution.

(3) “Treatment best management practice” means any engineered system designed to remove pollutants by simple gravity settling of particulate pollutants, filtration, biological uptake, media absorption/adsorption or any other physical, biological, or chemical process.

(e) “Bioretention area” or “flow-through planter” means landscaping features adapted to treat stormwater runoff on a development site. Surface runoff is directed into shallow, landscaped depressions or planter boxes. These landscape features are designed with soil mixtures and vegetation that incorporate many of the pollutant removal systems that operate in a natural ecosystem. If the subsurface soils will not allow for natural infiltration (e.g., heavy clay soil), the filtered runoff may be collected in a perforated underdrain in the area and returned to the storm drain collection system.

(f) “C3 Technical Guidance Manual” as revised means the manual approved by the Clean Water Program of Alameda County amended from time to time, that sets forth guidance, design standards and best management practices for stormwater treatment measures, which shall be utilized by developers and property owners to comply with this chapter. A copy of the C3 Technical Guidance Manual may be accessed at the city’s website, www.fremont.gov.

(g) “CASQA” means California Stormwater Quality Association.

(h) “CASQA Stormwater Best Management Practice Handbook” means the four-volume set of handbooks for new and redevelopment, construction, industrial and commercial, and municipal operations produced by CASQA as amended from time to time. It is available at www.casqa.org.

(i) “City” shall mean the city of Fremont.

(j) “City manager” shall mean the city manager of the city of Fremont or designee.

(k) “Construction” means constructing, clearing, grading, or excavation that results in soil disturbance. Construction also includes structure demolition. Construction does not include routine maintenance to maintain original line and grade, hydraulic capacity, or original purpose of a facility, nor does it include emergency construction activities required to immediately protect public health and safety, interior remodeling with no outside exposure of construction material or construction waste to stormwater or mechanical permit work.

(l) “Creek” means a watercourse that is a naturally occurring swale or depression or engineered channel which carries fresh or estuarine water either seasonally or year-round within the city boundaries.

(m) “Detached single-family home project” means the building of one single new house or addition and/or replacement of impervious surface to one single existing house, which is not part of a larger plan of development.

(n) “Detention” means the temporary storage of storm runoff in a manner that controls peak discharge rates and provides some gravity settling of pollutants.

(o) “Development” means any construction, rehabilitation, redevelopment or reconstruction of any public or private project, or mass grading for anticipated construction. Development does not include routine maintenance to maintain original line and grade, hydraulic capacity or original purpose of a facility, nor does it include emergency construction activities required to protect immediately public health and safety.

(p) “Director” means either the director of public works, community development, or the environmental services manager.

(q) “Discharge,” when used as a verb, means to allow pollutants to directly or indirectly enter stormwater, or to allow stormwater or nonstormwater to directly or indirectly enter the storm drain system from an activity or operation. When used as a noun, “discharge” means the pollutants, stormwater or nonstormwater that is discharged.

(r) “Discharger” means any person or entity engaged in activities or operations or owning facilities, which will or may result in pollutants entering stormwater or the storm drain system. “Discharger” also means the owners of real property on which such activities, operations or facilities are located; provided, however, that a local government or public authority is not a discharger as to activities conducted by others in public rights-of-way.

(s) “Enforcement response plan” established by the environmental services manager contains criteria and various guidelines for implementing consistent enforcement of the NPDES stormwater permit as may be amended from time to time. It is available on the city’s website, www.fremont.gov.

(t) “Full trash capture” or a “full capture system or device” means any single device or series of devices that traps all particles retained by a five-millimeter mesh screen and has a design treatment capacity of not less than the peak flow rate Q resulting from a one-year, one-hour storm in the sub-drainage area and as approved by the San Francisco Bay Regional Water Quality Control Board, Region 2.

(u) “General permit” means an NPDES permit issued under Code of Federal Regulations Section 122.28 (40 CFR 122.28) authorizing a category of discharges under the Clean Water Act within a geographical area.

(v) “Hydromodification management (HM)” means the modification of a stream’s hydrograph, caused in general by increases in flows and durations that result when land is developed (e.g., made more impervious). The effects of hydromodification include, but are not limited to, increased bed and bank erosion, loss of habitat, increased sediment transport and deposition, and increased flooding.

(w) “Illegal connection” means any device or artifice, excluding roof drains and other similar connections, connecting into the storm drain system without a permit, through or by which an illicit discharge may be discharged.

(x) “Illicit discharge” means any discharge to a storm drain system that is not composed entirely of stormwater except discharges pursuant to an NPDES stormwater permit, including categorically allowed discharges and conditionally exempted discharges.

(y) “Impervious surface” means constructed or modified surface that cannot effectively infiltrate rainfall. Impervious surface includes, but is not limited to, building rooftops, pavement, sidewalks, and driveways where such surfaces are not constructed with pervious materials. “Impervious surface area” means the ground area covered or sheltered by an impervious surface, measured as if from directly above.

(z) “Infiltration” means the process of percolating stormwater or nonstormwater into the subsoil.

(aa) “Infiltration device” means infiltration facilities that are deeper than they are wide and designed to infiltrate stormwater runoff into the subsurface and, as designed, bypass the natural groundwater protection afforded by surface soil. These devices include dry wells, injection wells and infiltration trenches (includes French drains).

(bb) “In-lieu fees” mean the monetary amount necessary to provide required hydraulically sized LID treatment that meets numeric sizing of an equivalent quantity of stormwater runoff and pollutant loading and a proportional share of the operation and maintenance costs of the regulated project.

(cc) “Land disturbance activity” means any activity that moves soils or substantially alters the pre-existing vegetated or manmade cover of any land including, but not limited to, grading, digging, cutting, scraping, stockpiling or excavating of soil; placement of fill materials; paving, pavement removal, exterior construction; substantial removal of vegetation where soils are disturbed including, but not limited to, removal by clearing or grubbing or any activity which bares soil or rock or involves streambed alterations or diversion or piping of any watercourse. Land disturbance activity does not include routine maintenance to maintain original line and grade, hydraulic capacity, or the original purpose of the facility, nor does it include emergency construction activities required to protect public health and safety.

(dd) “Land owner” means the holder of legal title to the land, and other persons or entities who exercise control over a land development project pursuant to rights granted in a purchase agreement, joint venture agreement, development agreement, or long-term lease.

(ee) “Low impact development” (“LID”) is a land planning and engineering design approach with a goal of reducing stormwater runoff and mimicking a site’s predevelopment hydrology by minimizing disturbed areas and impervious cover and then infiltrating, storing, detaining, evapotranspiring, and/or biotreating stormwater runoff close to its source, or on site.

(ff) “Maximum extent practicable” means a standard for implementation of stormwater management programs to reduce pollutants in stormwater to the maximum extent possible, taking into account equitable considerations and competing facts including, but not limited to, the seriousness of the problem, public health risks, environmental benefits, pollutant removal effectiveness, regulatory compliance, cost and technical feasibility.

(gg) “Nonstormwater” means any discharge that is not composed entirely of stormwater.

(hh) “Notice of violation/notice to abate” means an official written notice of noncompliance, issued to a discharger from the director or designee, which provides notification that a significant violation of this chapter has occurred. The notice includes required corrective actions.

(ii) “NPDES stormwater permit” or “municipal regional permit” means the California Regional Water Quality Control Board San Francisco Bay Regional Stormwater NPDES Permit Order R2-2015-0049, NPDES Permit No. CAS612008, November 19, 2015, effective December 1, 2015, as may be updated from time to time.

(jj) “Permeable surfaces” mean the pervious concrete, porous asphalt, unit pavers, and/or granular materials that allow water to infiltrate into subsurface soil.

(kk) “Pollutant” means dredged soil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharge into water.

(ll) “Premises” shall mean any building, lot, parcel, real estate, or land or portion of land whether improved or unimproved including adjacent sidewalks and parking strips.

(mm) “Redevelopment” means land-disturbing activity that results in the creation, addition, or replacement of exterior impervious surface area on a site on which some past development has occurred. The MRP excludes interior remodels and routine maintenance or repair, including roof or exterior surface replacement, pavement resurfacing, repaving and road pavement structural section rehabilitation within the existing footprint.

(nn) “Regional project” means a regional or municipal project with sufficient capacity or credit to protect or enhance water quality and/or beneficial uses in a manner equivalent to or greater than the stormwater benefits that would have been provided from the installation of the required treatment measures at the subject project site.

(oo) “Regulated projects” are new development projects, as defined in provision C.3.b.ii of the NPDES stormwater permit.

(pp) “Riparian areas” means an ecosystem that is the interface between dry land and a water body such as a creek, stream, river, lake, or marsh. Vegetation in riparian areas is characterized by a predominance of hydrophilic plants.

(qq) “Storm drain system” or “municipal separate storm sewer system” (“MS4”) means the conveyance or system of conveyances, including roads with drainage systems, streets, catch basins, curbs, gutters, ditches, manmade channels, storm drains and natural creeks and streams, used for the purpose of collecting and conveying stormwater.

(rr) “Stormwater” means stormwater runoff, snow-melt runoff, surface runoff, and drainage, excluding infiltration and irrigation tailwater.

(ss) “Stormwater control plan” (“SCP”) means a plan identifying the measures that will be used for stormwater and nonstormwater management during the permitted activity and/or during and after construction of any development or significant redevelopment project subject to the provisions of this chapter. The SCP includes the city approved stormwater management plan sheets in the approved project plans; other sheets in the approved plan set relevant to the design of the SMMs; all documents providing inspection, operation and maintenance guidance for the SMMs; and any revisions or amendments to the SCP that are approved in writing by the city.

(tt) “Stormwater control plan guidance manual” (“SCP guidance manual”) means the guidance manual that details the process a development project follows in order to complete the SCP. The SCP guidance manual also details any city of Fremont specific guidelines, design standards, or requirements that a project must meet prior to acceptance of the SCP.

(uu) “Stormwater management measures” (“SMMs”) means all stormwater treatment measures, stormwater flow duration controls, stormwater site design measures, and appurtenant design features related to their function, that are to be constructed as part of a regulated project.

(vv) “Stormwater treatment measure” means the use of designed and/or engineered systems, which use physical, chemical, or biological processes to remove pollutants. Such processes include, but are not limited to, filtration, gravity settling, media absorption/adsorption, biodegradation, biological uptake, chemical oxidation and ultraviolet (UV) radiation.

(ww) “Top of bank” means the point at which a line projected from the toe of the bank toward the top of the bank at a slope of two (horizontal) to one (vertical), or 26 1/2 degrees from horizontal, intersects surrounding level ground, unless such a line does not intersect surrounding level ground at all. The top of a bank shall be determined at the discretion of the chief building official or his or her designee as the point at which the slope of the bank begins most closely to approximate the horizontal.

(xx) “Watercourse” means any conduit or natural or manmade channel through which water flows continuously or intermittently in a definite direction and course or alternating directions and course under the influence of tides or any appurtenant structure thereof which is used for the holding, delay or storage of water, except enclosed public water delivery and storm sewer system conduits. (Ord. 01-2021 § 1, 2-2-21.)

The provisions of this chapter shall not operate to deprive any landowner of an economically viable use of his/her property or otherwise constitute an unconstitutional taking without compensation. If application of this chapter to a specific project would create an unlawful taking, the city may allow additional uses, but only to the extent necessary to avoid a taking. Such uses shall be consistent with and carry out the purposes of this chapter as stated in Section 18.210.020. (Ord. 01-2021 § 1, 2-2-21.)