Laguna Niguel Municipal Code Art. 5 Prohibition of Non-Stormwater Discharges into Storm Sewers

Footnotes:

--- (6) ---

Editor's note— Ord. No. 2010-161, § 2, adopted Nov. 16, 2010, repealed the former Article 5, §§ 6-3-400—6-3-410, and enacted a new Article 5 as set out herein. The former Article 5 pertained to similar subject matter and derived from Ord. No. 94-79, § 1, adopted Dec. 20, 1994; Ord. No. 2003-133, §§ 1—4, adopted Dec. 2, 2003.

The city council determines that the purpose of this article is as follows:

(1) The United States Congress passed the Clean Water Act [33 USC §1251 et seq., as amended, including § 402(p) therein] as a mandate, in part, that municipal separate storm sewer systems (MS4s), such as in Orange County, obtain permits to "effectively prohibit non-stormwater discharges into the storm sewers" and "require controls to reduce the discharge of pollutants to the maximum extent practicable..." This permitting authority has been delegated by the United States Environmental Protection Agency (EPA) to the State of California, which has authorized the State Water Resources Control Board and its local regulatory agencies, the Regional Water Quality Control Boards, to control non-point source discharges to California's waterways.

(2) The San Diego Regional Water Quality Control Board has addressed the obligation to implement the Clean Water Act by issuing Waste Discharge Requirements governing runoff for the County of Orange, Orange County Flood Control District and the Incorporated Cities of South Orange County. These requirements shall be referred to collectively herein as the National Pollution Discharge Elimination System (NPDES) Permit.

(3) The City of Laguna Niguel is a co-permittee under the NPDES permit.

(4) Runoff, which includes both stormwater and non-stormwater, is one step in the cycle of water. However, human activities, such as agriculture, construction and the operation and maintenance of an urban infrastructure may result in undesirable discharges of pollutants and certain sediments, which may accumulate in local drainage channels and waterways and eventually may be deposited in the waters of the United States.

(5) The purpose of this article is to participate in the improvement of water quality and comply with federal requirements for the control of urban pollutants to runoff, which enters the network of storm drains throughout Orange County.

(Ord. No. 2010-161, § 2, 11-16-10)

The city council finds and declares that:

(1) The City of Laguna Niguel is authorized by Article XI, § 5 and § 7 of the State Constitution to exercise the police power of the State by adopting regulations promoting the public health, public safety and general prosperity.

(2) The City of Laguna Niguel has determined that a legitimate local purpose is present in complying with the provisions of the NPDES permit.

(3) A reduction in stormwater borne pollution will promote the public health and protect the general welfare of the locality by reducing the level of artificial and naturally occurring constituents, which may improve the quality of the waters in this region.

(4) The land use authority exercised by the City of Laguna Niguel, pursuant to California Government Code § 65300 et seq., requires regional planning and the adoption of policies protecting the environment through the imposition of reasonable conditions on the use of land.

(5) This article conforms to the policies and goals of the General Plan adopted by the City of Laguna Niguel, pursuant to California Planning and Zoning Law, for the protection of the portions of watersheds located within Orange County by implementing measures to control erosion and prevent the pollution of streams and other waters.

(6) Certain provisions of this article may be coordinated with the Local Coastal Program for inclusion in Coastal Development Permits, pursuant to California Public Resources Code § 30607, as mitigation for the negative effects of grading, construction, re-construction, and changes to the intensity of use of land or water resources within the coastal zone.

(7) The Subdivision Map Act, California Government Code § 66411, authorizes the City of Laguna Niguel to regulate and control the design and improvement of subdivided lands and mitigate the burdens of proposed development by imposing reasonable conditions on map approval.

(8) California Constitution Article XI, § 7 and Government Code § 38660 authorize the city to establish appropriate conditions for the issuance of building permits, which require the installation of improvements reasonably related to the proposed use of property.

(9) Government Code § 38771 authorizes the city to declare as public nuisances undesirable acts which may injure health or cause interference with the comfortable enjoyment of life or property and to provide for the abatement of the same.

(10) The NPDES permit requires that the City of Laguna Niguel: (i) develop and implement runoff management programs and implementation plans, (ii) enact legislation and ordinances as necessary to ensure compliance with the runoff management programs and implementation plans, (iii) pursue enforcement actions as necessary to ensure compliance with runoff management programs and implementation plans, (iv) prohibit illicit and illegal discharges from entering the stormwater conveyance systems, subject only to specific exceptions, (v) ensure adequate response to emergency situations, including spills, leaks, and illicit or illegal discharges, and (vi) develop and require implementation of best management practices (BMPs) to ensure that pollution is reduced to the maximum extent practicable (MEP).

(11) The City of Laguna Niguel may commence civil actions, pursuant to Federal Clean Water Act § 505(a), against any person or any governmental agency acting in violation of any condition of the NPDES permit.

(12) All industrial dischargers subject to the provisions of the state industrial general permit and state construction general permit (referred to collectively herein as the state general permits) must comply with the lawful requirements of the City of Laguna Niguel, which regulates discharges of runoff to the storm drain system within its jurisdiction.

(13) All industrial dischargers subject to the provisions of the state general permits are required to maintain stormwater pollution prevention plans on-site and make them available to the City of Laguna Niguel for inspection.

(14) All dischargers subject to the provisions of the State Construction General Permit may be required by the City of Laguna Niguel, with the concurrence of the San Diego Regional Water Board, to amend any Stormwater Pollution Prevention Plan.

(15) All industrial dischargers subject to the provisions of the State Industrial General Permit are required to maintain a description of the required monitoring program on-site and make it available to the City of Laguna Niguel for inspection.

(16) The City of Laguna Niguel has jurisdiction over certain stormwater facilities and other watercourses within the City of Laguna Niguel, and the water discharges into these facilities may be subject to the provisions of the State Industrial General Permit; accordingly, the city may certify (but is not required to certify) in writing that regulated dischargers have developed and implemented effective Stormwater Pollution Prevention Plans and should not be required to collect and analyze stormwater samples for pollutants.

(17) The City of Laguna Niguel has jurisdiction over certain stormwater facilities and other watercourses within the City of Laguna Niguel, and these facilities may receive runoff discharges from properties and activities regulated under the provisions of the state general permits, and city may request that the regulated dischargers furnish information and records necessary to determine compliance with the state general permits.

(18) The City of Laguna Niguel has jurisdiction over certain stormwater facilities and other watercourses within the City of Laguna Niguel, and these facilities may receive runoff discharges from properties and activities regulated under the provisions of the state general permits, and city may, upon presentation of credentials and other documents required by law, (i) enter upon the discharger's premises where a regulated facility is located or where records must be kept under the conditions of the state general permits, (ii) access and copy, at reasonable times, any records that must be kept under the conditions of the state general permits, (iii) inspect, at reasonable times, any facility or equipment related to or impacting runoff discharge, and (iv) sample or monitor for the purpose of ensuring compliance with the state general permits.

(19) The enacting of this article is a condition of the NPDES permit, the requirements of which are exempt from the California Environmental Quality Act (CEQA) pursuant to Public Resources Code § 21000, et seq., including but not limited to 21083 and 21084.

(20) This article is subject to CEQA categorical exemption classes 1 through 4, 6 through 9, 21 and 22, pursuant to the CEQA Guidelines, respectively, Title 14, California Code of Regulations Sections 15301, 15302, 15303, 15304, 15306, 15307, 15308, 15309, 15321 and 15322.

(Ord. No. 2010-161, § 2, 11-16-10)

This article shall be known and may be cited as the "Runoff Water Quality Control Ordinance."

(Ord. No. 2010-161, § 2, 11-16-10)

(a) Authorized inspector shall mean the city director of public works/city engineer and the city director of community development, and persons designated by and under their instruction and supervision, who are assigned to investigate compliance with, detect violations of and/or take action pursuant to this article.

(b) Best management practices (BMPs) shall mean schedules of activities, pollution treatment practices or devices, prohibitions of practices, general good housekeeping practices, pollution prevention and educational practices, operation and maintenance procedures and other management practices or devices to prevent or reduce to the maximum extent practicable (MEP) the discharge of pollutants directly or indirectly to stormwater, receiving waters or the stormwater drainage system. BMPs may be structural or non-structural, and include, but are not limited to, site design, source control, treatment control, and natural design methods. BMPs may include any type of pollution prevention and control measure that can help to achieve compliance with this article.

(c) City shall mean the City of Laguna Niguel, Orange County, California.

(d) Co-permittee shall mean the County of Orange, the Orange County Flood Control District, and/or any one of the municipalities, including the City of Laguna Niguel, which are responsible for compliance with the terms of the NPDES permit.

(e) Discharge shall mean any release, spill, leak, pump, flow, escape, leaching (including subsurface migration or deposition to groundwater), dumping or disposal of any liquid, semi-solid or solid substance.

(f) Discharge exception shall mean the group of activities not restricted or prohibited by this article, including only:

1. Discharges composed entirely of stormwater;

2. Discharges authorized by current EPA or Regional Water Quality Control Board issued NPDES permits, state general permits, or other waivers, permits, regulations or approvals granted by a government agency with jurisdiction over such discharges;

3. Discharges to the stormwater drainage system from:

a. Diverted stream flows;

b. Rising ground waters;

c. Infiltration to MS4s of groundwater not contaminated by sewage;

d. Uncontaminated pumped groundwater;

e. Foundation drains;

f. Springs;

g. Water from crawl space pumps;

h. Footing drains;

i. Air conditioning condensation;

j. Flows from riparian habitats and wetlands;

k. Water line flushing, except for fire suppression sprinkler system maintenance and testing discharges;

l. Discharges from potable water sources;

m. Individual residential car washing;

n. Dechlorinated swimming pool discharges;

o. Emergency fire fighting activities;

4. Discharges authorized pursuant to federal or state laws or regulations.

The discharges set forth above in subsections 3(d)(e)(g) and (h) may require compliance with a State or Regional Water Quality Control Board Permit for groundwater extraction or similar discharges to surface waters. The city authorizes this discharge unless the authorized inspector determines the discharge potentially causes, or threatens to cause, a condition of pollution, contamination or nuisance.

The discharges set forth above in subsections 3(k) and (l) are exempt from the provisions of this article except to the extent that such discharges are subject to, but not in compliance with, State or Regional Water Quality Control Board Permits or other local ordinances.

In any action taken to enforce this article, the burden shall be on the person who is the subject of such action to establish that a discharge was within the scope of this discharge exception.

(g) Enforcing attorney shall mean the city attorney or district attorney acting as counsel to the city and his/her designee, which counsel is authorized to take enforcement action as described herein. For purposes of criminal prosecution, only the district attorney and/or city attorney shall act as the enforcing attorney.

(h) EPA shall mean the Environmental Protection Agency of the United States.

(i) Hearing officer shall mean the city director of public works/city engineer or his/her designee, who shall preside at the administrative hearings authorized by this article and issue final decisions on the matters raised therein. In the alternative, it shall mean any appeals board established by separate resolution of the city council, which shall preside at the administrative hearings authorized by this article and issue final decisions on the matters raised therein.

(j) Invoice for costs shall mean the actual costs and expenses of the city, including but not limited to administrative overhead, salaries and other expenses recoverable under State law, incurred during any inspection conducted pursuant to section 6-3-406 of this article, where a notice of noncompliance, administrative compliance order or other enforcement option under section 6-3-407 of this article is utilized to obtain compliance with this article.

(k) Illicit connection shall mean any man-made conveyance or drainage system, pipeline, conduit, inlet or outlet through which the discharge of any pollutant to the stormwater drainage system occurs or may occur. The term illicit connection shall not include legal nonconforming connections or connections to the stormwater drainage system that are hereinafter authorized by the agency with jurisdiction over the system at the location at which the connection is made.

(l) Legal nonconforming connection shall mean connections to the stormwater drainage system existing as of the adoption of this article that were in compliance with all federal, state and local rules, regulations, statutes and administrative requirements in effect at the time the connection was established, including but not limited to any Discharge permitted pursuant to the terms and conditions of an individual discharge permit issued pursuant to the Industrial Waste Ordinance, City Ordinance No. 90-16.

(m) Local implementation plan (LIP) shall mean the city's adopted plan for local implementation of the NPDES permit, including all appendices, as they may be amended or revised from time to time. The LIP is equivalent to the Jurisdictional Runoff Management Plan (JRMP) as defined in the NPDES permit.

(n) Maximum extent practicable (MEP) shall mean the acceptability standard for BMPs established by Congress in Clean Water Act Section 402(p)(3)(B)(iii) that discharges to MS4s must meet. MEP means using an effective set of BMPs that can be implemented and still remain practicable. A BMP is effective if it prevents, reduces or removes pollutants that would otherwise be present in the runoff due to human activity. A BMP is practicable if it complies with runoff and other regulations; is compatible with the area's land use, character, facilities and activities; is technically feasible (considering area soil, geography, water resources, and other resources available); is economically feasible; and provides benefits that are reasonable in relation to costs. MEP generally emphasizes pollution prevention and source control BMPs (as the first line of defense) in combination with treatment methods serving as a backup (additional line of defense).

(o) New development shall mean all public and private residential (whether single family, multi-unit or planned unit development), industrial, commercial, retail, and other non-residential construction projects, or mass grading for future construction, for which either a discretionary land use approval, grading permit, building permit or safety permit is required.

(p) NPDES permit shall mean the currently applicable municipal discharge permit issued by the California Regional Water Quality Control Board, San Diego Region, which permit establishes waste discharge requirements applicable to runoff in the city.

(q) Person shall mean any natural person as well as any corporation, partnership, government entity or subdivision, trust, estate, cooperative association, joint venture, business entity, or other similar entity, or the agent, employee or representative of any of the above.

(r) Pollutant shall mean any liquid, solid or semi-solid substances, or combination thereof, including and not limited to:

(1) Artificial materials (such as floatable plastics, wood products or metal shavings);

(2) Household waste (such as trash, paper and plastics; cleaning chemicals; yard wastes; animal fecal materials; used oil and fluids from vehicles, lawn mowers and other common household equipment);

(3) Metals and non-metals, including compounds of metals and non-metals (such as cadmium, lead, zinc, copper, silver, nickel, chromium, cyanide phosphorus and arsenic);

(4) Petroleum and related hydrocarbons (such as fuels, lubricants, surfactants, waste oils, solvents, coolants and grease);

(5) Animal wastes (such as discharge from confinement facilities, kennels, pens and recreational facilities, including stables, show facilities, or polo fields);

(6) Substances having a pH less than 6.5 or greater than 8.6, or unusual coloration, turbidity or odor;

(7) Waste materials and wastewater generated on construction sites and by construction activities (such as painting and staining; use of sealants and glues; use of lime; use of wood preservatives and solvents; disturbance of asbestos fibers, paint flakes or stucco fragments; application of oils, lubricants, hydraulic, radiator or battery fluids; construction equipment washing; concrete pouring and cleanup; use of concrete detergents; steam cleaning or sand blasting; use of chemical degreasing or diluting agents; and use of super chlorinated water for potable water line flushing);

(8) Materials causing an increase in biochemical oxygen demand, chemical oxygen demand or total organic carbon;

(9) Materials which contain base/neutral or acid extractable organic compounds;

(10) Those pollutants defined in § 1362(6) of the Federal Clean Water Act;

(11) Any other constituent or material, including but not limited to pesticides, herbicides, fertilizers, fecal coliform, fecal streptococcus or enterococcus, or eroded soils, sediment and particulate materials, in quantities that will interfere with or adversely affect the beneficial uses of the receiving waters, flora or fauna of the state.

(s) Private property shall mean any real property, irrespective of ownership, which is not open to the general public.

(t) Prohibited discharge shall mean any discharge which contains any pollutant, from public or private property to:

(1) The stormwater drainage system;

(2) Any upstream flow, which is tributary to the stormwater drainage system;

(3) Any groundwater, river, stream, creek, wash or dry weather arroyo, wetlands area, marsh, coastal slough; or

(4) Any coastal harbor, bay, or the Pacific Ocean.

The term prohibited discharge shall not include discharges allowable under the discharge exception.

(u) Responsible party shall mean the person(s) identified in and responsible for compliance with the provisions of a Water Quality Management Plan (WQMP) approved by the city.

(v) Significant redevelopment means development that would create or add at least 5,000 square feet of impervious surfaces on an already developed site. Significant redevelopment includes, but is not limited to: the expansion of a building footprint; addition to or replacement of a structure; replacement of an impervious surface that is not part of a routine maintenance activity; and land disturbing activities related with structural or impervious surfaces. Replacement of impervious surfaces includes any activity that is not part of a routine maintenance activity where impervious material(s) are removed, exposing underlying soil during construction.

(w) State general permit shall mean either the Waste Discharge Requirements for Discharges of Storm Water Associated with Industrial Activities Excluding Construction Activities Permit (State Industrial General Permit) or the National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges Associated With Construction and Land Disturbance Activities (State Construction General Permit) and the terms and requirements of either or both. In the event the EPA revokes the in-lieu permitting authority of the State Water Resources Control Board, then the term state general permit shall also refer to any EPA administered stormwater control program for industrial and construction activities.

(x) Stormwater drainage system shall mean street gutter, channel, storm drain, constructed drain, lined diversion structure, wash area, inlet, outlet or other facility, which is a part of or tributary to the county-wide stormwater runoff system and owned, operated, maintained or controlled by the County of Orange, the Orange County Flood Control District or any co-permittee city, and used for the purpose of collecting, storing, transporting, or disposing of runoff.

(y) Water quality management plan (WQMP) shall mean a plan, prepared in accordance with the LIP, to mitigate the impacts of runoff from development projects. A WQMP is equivalent to a standard storm water mitigation plan (SSMP) as defined in the NPDES permit.

(Ord. No. 2010-161, § 2, 11-16-10)

(a) No person shall:

(1) Construct, maintain, operate and/or utilize any illicit connection.

(2) Cause, allow or facilitate any prohibited discharge.

(3) Act, cause, or permit any agent, employee, or independent contractor, to construct, maintain, operate or utilize any illicit connection, or cause, allow or facilitate any prohibited discharge.

(b) The prohibition against illicit connections shall apply irrespective of whether the illicit connection was established prior to the date of enactment of this article; however, legal nonconforming connections shall not become illicit connections until the earlier of the following:

(1) For all structural improvements to property installed for the purpose of discharge to the stormwater drainage system, the expiration of five years from the adoption of this article.

(2) For all nonstructural improvements to property existing for the purpose of discharge to the stormwater drainage system, the expiration of six months following delivery of a notice to the owner or occupant of the property, which states a legal nonconforming connection has been identified. The notice of a legal nonconforming connection shall state the date of expiration of use under this article.

(c) A civil or administrative violation of section 6-3-404(a) shall occur irrespective of the negligence or intent of the violator to construct, maintain, operate or utilize an illicit connection or to cause, allow or facilitate any prohibited discharge.

(d) If an authorized inspector reasonably determines that a discharge, which is otherwise within the discharge exception, may adversely affect the beneficial uses of receiving waters, then the authorized inspector may give written notice to the owner of the property or facility that the discharge exception shall not apply to the subject discharge following expiration of the 30-day period commencing upon delivery of the notice. Upon expiration of the 30-day period any such discharge shall constitute a violation of section 6-3-404(a).

(e) The owner or occupant of property on which a legal nonconforming connection exists may request an administrative hearing, pursuant to the procedures set forth in sections 6-3-407(a)(6-10), for an extension of the period allowed for continued use of the connection. A reasonable extension of use may be authorized by the director of public works/city engineer upon consideration of the following factors:

(1) The potential adverse effects of the continued use of the connection upon the beneficial uses of receiving waters;

(2) The economic investment of the discharger in the legal nonconforming connection; and

(3) The financial effect upon the discharger of a termination of the legal nonconforming connection.

(Ord. No. 2010-161, § 2, 11-16-10)

(a) New development and significant redevelopment.

(1) All new development and significant redevelopment within the city shall be undertaken in accordance with:

a. When required by, and in accordance with the LIP, a WQMP; and

b. Any conditions and requirements established by the community development department, which are reasonably related to the reduction or elimination of pollutants in runoff from the project site.

(2) When required by the LIP, prior to the issuance by the city of a grading permit, building permit and/or safety permit for any new development or significant redevelopment, the property owner shall submit to and obtain the approval of the community development department of a WQMP. If the new development or significant redevelopment will be approved without application for a grading permit, building permit or safety permit, the property owner shall submit to and obtain the approval of the community development department of a WQMP prior to the issuance of a discretionary land use approval or, at the city's discretion, prior to recordation of a subdivision map.

(3) Notwithstanding the foregoing sections 6-3-405(a)(1) and 6-3-405(a)(2), a WQMP shall not be required for construction of a (one) single-family detached residence unless the city community development department determines that the construction may result in the discharge of significant levels of a pollutant into a tributary to the stormwater drainage system.

(4) Compliance with the conditions and requirements of a WQMP shall not exempt any person from the requirement to independently comply with each provision of this article.

(5) If the city community development department determines that the project will have a de minimis impact on the quality of runoff, then it may issue a written waiver of the requirement for preparation and approval of a WQMP.

(6) Each WQMP shall name a responsible party for the project.

(7) The owner of a new development or significant redevelopment project, their successors and assigns, and each named responsible party, shall implement and adhere to the terms, conditions and requirements of the approved WQMP.

(8) Each failure by the owner of the property, their successors or assigns, or a named responsible party, to implement and adhere to the terms, conditions and requirements of an approved WQMP shall constitute a violation of this article.

(9) The city community development department may require that the WQMP be recorded with the county recorder's office by the property owner. The signature of the owner of the property, any successive owner or the named responsible party shall be sufficient for the recording of the plan or any revised plan and a signature on behalf of the city shall not be required for recordation.

(b) Cost recovery. The costs and expenses of the city community development department incurred in the review, approval, or revision of any WQMP shall be assessed to the property owner or responsible party and shall be due and payable to the city. The city community development department may elect to require a deposit of estimated costs and expenses, and the actual costs and expenses shall be deducted from the deposit, and the balance, if any, refunded to the property owner or responsible party.

(c) Litter control. No person shall discard any waste material, including but not limited to common household rubbish or garbage of any kind (whether generated or accumulated at a residence, business or other location), upon any public or private property, whether occupied, open or vacant, including but not limited to any street, sidewalk, alley, right-of-way, open area or point of entry to the stormwater drainage system.

Every person occupying or having charge and control of private property on which a prohibited disposal of waste materials occurs shall cause the property collection and disposal of same.

A prohibited disposal of waste materials creates a danger to public health, safety and welfare, and otherwise threatens the environment, surface waters and groundwater; therefore, any owner or occupant of private property who fails to remove waste material within a reasonable time may be charged with creating a nuisance upon the property.

(d) Every person owning property, conducting any activity or operation, or maintaining any facility shall comply with the applicable BMPs as identified in the LIP. in order to prevent, to the MEP, pollutants from entering the stormwater drainage system.

(Ord. No. 2010-161, § 2, 11-16-10)

(a) Right to inspect. Prior to commencing any inspection as herein below authorized, the authorized inspector shall obtain either the consent of the owner or occupant of the private property or shall obtain an administrative inspection warrant or criminal search warrant.

(b) Entry to inspect. The authorized inspector may enter private property to investigate the source of any discharge to any public street, inlet, gutter, storm drain or the stormwater drainage system located within the jurisdiction of the City of Laguna Niguel.

(c) Compliance assessments. The authorized inspector may inspect private property for the purpose of verifying compliance with this article, including but not limited to (i) identifying products produced, processes conducted, chemicals used and materials stored on or contained within the property, (ii) identifying point(s) of discharge of all wastewater, process water systems and pollutants, (iii) investigating the natural slope at the location, including drainage patterns and man-made conveyance systems, (iv) establishing the location of all points of discharge from the private property, whether by surface runoff or through a storm drain system, (v) locating any illicit connection or the source of prohibited discharge, (vi) evaluating compliance with any WQMP, and (vii) investigating the condition of any legal nonconforming connection.

(d) Portable equipment. For purposes of verifying compliance with this article, the authorized inspector may inspect any vehicle, truck, trailer, tank truck or other mobile equipment.

(e) Records review. The authorized inspector may inspect all records of the owner or occupant of private property relating to chemicals or processes presently or previously occurring on-site, including material and/or chemical inventories, facilities maps or schematics and diagrams, material safety data sheets, hazardous waste manifests, business plans, pollution prevention plans, state general permits, stormwater pollution prevention plans as required by a state general permit, monitoring program plans and any other record(s) relating to illicit connections, prohibited discharges, a legal nonconforming connection or any other source of contribution or potential contribution of pollutants to the stormwater drainage system.

(f) Sample and test. The authorized inspector may inspect, sample and test any area runoff, soils area (including groundwater testing), process discharge, materials within any waste storage area (including any container contents), and/or treatment system discharge for the purpose of determining the potential for contribution of pollutants to the stormwater drainage system. The authorized inspector may investigate the integrity of all storm drain and sanitary sewer systems, any legal nonconforming connection or other pipelines on the property using appropriate tests, including but not limited to smoke and dye tests or video surveys. The authorized inspector may take photographs or videotape, make measurements or drawings, and create any other record reasonably necessary to document conditions on the property.

(g) Monitoring. The authorized inspector may erect and maintain monitoring devices for the purpose of measuring any discharge or potential source of discharge to the stormwater drainage system.

(h) Test results. The owner or occupant of property subject to inspection shall, on submission of a written request, receive copies of all monitoring and test results conducted by the authorized inspector.

(Ord. No. 2010-161, § 2, 11-16-10)

(a) Administrative remedies.

(1) Notice of noncompliance. The authorized inspector may deliver to the owner or occupant of any private property, or to any person responsible for an illicit connection or prohibited discharge a notice of noncompliance. The notice of noncompliance shall be delivered in accordance with section 6-3-407(a)(5) of this article.

(i) The notice of noncompliance shall identify the provision(s) of this article, the applicable WQMP or permit which has been violated. The notice of noncompliance shall state that continued noncompliance may result in additional enforcement actions against the owner, occupant and/or person.

(ii) The notice of noncompliance shall state a compliance date that must be met by the owner, occupant and/or person; provided, however, that the compliance date may not exceed 90 days unless the authorized inspector extends the compliance deadline an additional 90 days where good cause exists for the extension.

(2) Administrative compliance orders.

(i) The authorized inspector may issue an administrative compliance order. The administrative compliance order shall be delivered in accordance with section 6-3-407(a)(5) of this article. The administrative compliance order may be issued to:

a. The owner or occupant of any private property requiring abatement of conditions on the property that cause or may cause a prohibited discharge or an illicit connection in violation of this article;

b. The owner of private property or a responsible party subject to the requirements of any WQMP to ensure implementation of and adherence to the terms, conditions and requirements of the plan;

c. Any person responsible for an illicit connection or prohibited discharge.

(ii) The administrative compliance order may include the following terms and requirements:

a. Specific steps and time schedules for compliance as reasonably necessary to prevent the imminent threat of prohibited discharge, including but not limited to prohibited discharge from any pond, pit, well, surface impoundment, holding or storage area;

b. Specific steps and time schedules for compliance as reasonably necessary to discontinue any illicit connection;

c. Specific requirements for containment, cleanup, removal, storage, installation of overhead covering, or proper disposal of any pollutant having the potential to contact runoff;

d. Any other terms or requirements reasonably calculated to prevent the imminent threat of or continuing violations of this article, including, but not limited to requirements for compliance with BMPs and guidance documents promulgated by any federal, State of California or regional agency;

e. Any other terms or requirements reasonably calculated to achieve full compliance with the terms, conditions and requirements of any WQMP, or permit issued by the city.

(3) Cease and desist orders.

(i) The authorized inspector may issue a cease and desist order. A cease and desist order shall be delivered in accordance with section 6-3-407(a)(5) of this article. A cease and desist order may direct the owner or occupant of any private property and/or other person responsible for a violation of this article to:

a. Immediately discontinue any illicit connection or prohibited discharge to the stormwater drainage system;

b. Immediately contain or divert any flow of water off the property, where the flow is occurring in violation of any provision of this article;

c. Immediately discontinue any other violation of this article;

d. Clean up the area affected by the violation.

(ii) The authorized inspector may direct by cease and desist order that the owner of any private property, the responsible party subject to the terms and conditions of any WQMP, or any permittee under any permit issued by the city immediately cease any activity not in compliance with the terms, conditions and requirements of the applicable WQMP or permit.

(4) Recovery of costs. The authorized inspector may deliver to the owner or occupant of any private property, any permittee or any responsible party, or any other person who becomes subject to a notice of noncompliance or administrative compliance order, an invoice for costs. An invoice for costs shall be delivered in accordance with section 6-3-407(a)(5) of this article. An invoice for costs shall be immediately due and payable to the city for the actual costs incurred by the city in issuing and enforcing any notice or order.

If any owner or occupant, permittee or responsible party, or any other person fails to either pay the invoice for costs or appeal successfully the invoice for costs in accordance with section 6-3-407(a)(6), then the enforcing attorney may institute collection proceedings.

(5) Delivery of notice. Any notice of noncompliance, administrative compliance order, cease and desist order or invoice of costs to be delivered pursuant to the requirements of this article shall be subject to the following:

(i) The notice shall state that the recipient has a right to appeal the matter as set forth in sections 6-3-407(a)(6) through section 6-3-407(a)(10) of this article.

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

(iii) Where the recipient of notice is the owner of the property, the address for notice 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.

(iv) Where the owner or occupant of any private property cannot be located after the reasonable efforts of the authorized inspector, a notice of noncompliance or cease and desist order shall be deemed delivered after posting on the property for a period of ten business days.

(6) Administrative hearing for notices of noncompliance administrative compliance orders, invoices for costs and adverse determinations. Except as set forth in section 6-3-407(a)(8), any person receiving a notice of noncompliance, administrative compliance order, a notice of legal nonconforming connection, an invoice for costs, or any person who is subject to any adverse determination made pursuant to this article, may appeal the matter by requesting an administrative hearing. Notwithstanding the foregoing, these administrative appeal procedures shall not apply to criminal proceedings initiated to enforce this article.

(7) Request for administrative hearing. Any person appealing a notice of noncompliance, an administrative compliance order, a notice of legal nonconforming connection, an invoice for costs or an adverse determination shall, within 30 days of receipt thereof, file a written request for an administrative hearing, accompanied by an administrative hearing fee as established by separate resolution, with the office of the city clerk, with a copy of the request for administrative hearing mailed on the date of filing to the director of public works/city engineer. Thereafter, a hearing on the matter shall be held before the hearing officer within 45 business days of the date of filing of the written request unless, in the reasonable discretion of the hearing officer and pursuant to a written request by the appealing party, a continuance of the hearing is granted.

(8) Administrative hearing for cease and desist orders and emergency abatement actions. An administrative hearing on the issuance of a cease and desist order or following an emergency abatement action shall be held within five business days following the issuance of the order or the action of abatement, unless the hearing (or the time requirement for the hearing) is waived in writing by the party subject to the cease and desist order or the emergency abatement. A request for an administrative hearing shall not be required from the person subject to the cease and desist order or the emergency abatement action.

(9) Hearing proceedings. The authorized inspector shall appear in support of the notice, order, determination, invoice for costs or emergency abatement action, and the appealing party shall appear in support of withdrawal of the notice, order, determination, invoice for costs, or in opposition to the emergency abatement action. The city shall have the burden of supporting any enforcement or other action by a preponderance of the evidence. Each party shall have the right to present testimony and other documentary evidence as necessary for explanation of the case.

(10) Final decision and appeal. The final decision of the hearing officer shall issue within ten business days of the conclusion of the hearing and shall be delivered by first-class mail, postage prepaid, to the appealing party. The final decision shall include notice that any legal challenge to the final decision shall be made pursuant to the provisions of Code of Civil Procedure §§ 1094.5 and 1094.6 and shall be commenced within 90 days following issuance of the final decision.

Notwithstanding this section 6-3-407(a)(10), the final decision of the hearing officer in any preceding determining the validity of a cease and desist order or following an emergency abatement action shall be mailed within five business days following the conclusion of the hearing.

(11) City abatement. In the event the owner of private property, the operator of a facility, a permittee, a responsible party, or any other person fails to comply with any provision of a compliance schedule issued pursuant to this article, the authorized inspector may request the enforcing attorney to obtain an abatement warrant or other appropriate judicial authorization to enter the property, abate the condition and restore the area. Any costs incurred by the city in obtaining and carrying out an abatement warrant or other judicial authorization may be recovered pursuant to section 6-3-407(b)(4).

(b) Nuisance. Any condition in violation of the prohibitions of this article, including but not limited to the maintenance or use of any illicit connection or the occurrence of any prohibited discharge, shall constitute a threat to the public health, safety and welfare, and is declared and deemed a nuisance pursuant to Government Code § 38771.

(1) Court order to enjoin or abatement. At the request of the city manager, the enforcing attorney may seek a court order to enjoin and/or abate the nuisance.

(2) Notice to owner and occupant. Prior to seeking any court order to enjoin or abate a nuisance or threatened nuisance, the city manager shall provide notice of the proposed injunction or abatement to the owner and occupant, if any, of the property where the nuisance or threatened nuisance is occurring.

(3) Emergency abatement. In the event the nuisance constitutes an imminent danger to public safety or the environment, the authorized inspector may enter the property from which the nuisance emanates, abate the nuisance and restore any property affected by the nuisance. To the extent reasonably practicable, informal notice shall be provided to the owner or occupant prior to abatement. If necessary to protect the public safety or the environment, abatement may proceed without prior notice to or consent from the owner or occupant thereof and without judicial warrant.

(i) An imminent danger shall include, but is not limited to, exigent circumstances created by the dispersal of pollutants, where the same presents a significant and immediate threat to the public safety or the environment.

(ii) Notwithstanding the authority of the city to conduct an emergency abatement action, an administrative hearing pursuant to section 6-3-407(a)(8) hereinabove shall follow the abatement action.

(4) Reimbursement of costs. All costs incurred by the city in responding to any nuisance, all administrative expenses and all other expenses recoverable under State law, shall be recoverable from the person(s) creating, causing, committing or maintaining the nuisance.

(5) Nuisance lien. All costs shall become a lien against the property from which the nuisance emanated and a personal obligation against the owner thereof in accordance with Government Code § 38773.1 and § 38773.5. The owner of record of the property subject to any lien shall be given notice of the lien prior to recording as required by Government Code § 38773.1.

At the direction of the city manager, the enforcing attorney is authorized to collect nuisance abatement costs or enforce a nuisance lien in an action brought for a money judgment or by delivery to the county assessor of a special assessment against the property in accord with the conditions and requirements of Government Code § 38773.5.

(c) Criminal sanctions.

(1) Prosecutor. The enforcing attorney may act on the request of the city manager to pursue enforcement actions in accordance with the provisions of this article.

(2) Infractions. Any person who may otherwise be charged with a misdemeanor under this article may be charged, at the discretion of the enforcing attorney, with an infraction punishable by a fine of not more than $100.00 for a first violation, $200.00 for a second violation, and a fine not exceeding $500.00 for each additional violation occurring within one year.

(3) Misdemeanors. Any person who negligently or knowingly violates any provision of this article, undertakes to conceal any violation of this article, continues any violation of this article after notice thereof, or violates the terms, conditions and requirements of any WQMP or permit, shall be guilty of a misdemeanor punishable by a fine of not more than $1,000.00 or by imprisonment for a period of not more than six months, or both.

(d) Consecutive violations. Each day in which a violation occurs and each separate failure to comply with either a separate provision of this article, an administrative compliance order, a cease and desist order, an applicable WQMP, or a permit issued by the city, shall constitute a separate violation of this article punishable by fines or sentences issued in accordance herewith.

(e) Non-exclusive remedies. Each and every remedy available for the enforcement of this article shall be non-exclusive and it is within the discretion of the authorized inspector or enforcing attorney to seek cumulative remedies, except that multiple monetary fines or penalties shall not be available for any single violation of this article.

(f) Citations. Pursuant to Penal Code § 836.5, the authorized inspector shall have the authority to cause the arrest of any person committing a violation of this article. The person shall be released and issued a citation to appear before a magistrate in accordance with Penal Code §§ 853.5, 853.6, and 853.9, unless the person demands to be taken before a magistrate. Following issuance of any citation the authorized inspector shall refer the matter to the enforcing attorney.

Each citation to appear shall state the name and address of the violator, the provisions of this article violated, and the time and place of appearance before the court, which shall be at least ten business days after the date of violation. The person cited shall sign the citation giving his or her written promise to appear as stated therein. If the person cited fails to appear, the enforcing attorney may request issuance of a warrant for the arrest of the person cited.

(g) Violations of other laws. Any person acting in violation of this article also may be acting in violation of the Federal Clean Water Act or the State Porter-Cologne Act and other laws and also may be subject to sanctions including civil liability. Accordingly, the enforcing attorney is authorized to file a citizen suit pursuant to Federal Clean Water Act § 505(a), seeking penalties, damages, and orders compelling compliance, and other appropriate relief. The enforcing attorney may notify EPA Region IX, the San Diego Regional Water Quality Control Board, or any other appropriate state or local agency, of any alleged violation of this article.

(h) Injunctions. At the request of the city manager, the enforcing attorney may cause the filing in a court of competent jurisdiction, of a civil action seeking an injunction against any threatened or continuing noncompliance with the provisions of this article.

(1) Order for reimbursement. Any temporary, preliminary or permanent injunction issued pursuant hereto may include an order for reimbursement to the city of all costs incurred in enforcing this article, including costs of inspection, investigation and monitoring, the costs of abatement undertaken at the expense of the city, costs relating to restoration of the environment and all other expenses as authorized by law.

(i) Other civil remedies.

(1) The city manager may cause the enforcing attorney to file an action for civil damages in a court of competent jurisdiction seeking recovery of (i) all costs incurred in enforcement of this article, including but not limited to costs relating to investigation, sampling, monitoring, inspection, administrative expenses, all other expenses as authorized by law, and consequential damages, (ii) all costs incurred in mitigating harm to the environment or reducing the threat to human health, and (iii) damages for irreparable harm to the environment.

(2) The enforcing attorney is authorized to file actions for civil damages resulting from any trespass or nuisance occurring on public land or to the stormwater drainage system from any violation of this article where the same has caused damage, contamination or harm to the environment, public property or the stormwater drainage system.

(3) The remedies available to the city pursuant to the provisions of this article shall not limit the right of the city to seek any other remedy that may be available by law.

(Ord. No. 2010-161, § 2, 11-16-10)

(a) The city intends to cooperate with other agencies with jurisdiction over runoff discharges to ensure that the regulatory purposes underlying runoff regulations promulgated pursuant to the Clean Water Act (33 USC § 1251 et seq.) are met.

(b) The city may, to the extent authorized by law, elect to contract for the services of any public agency or private enterprise to carry out the planning approvals, inspections, permits and enforcement authorized by this article.

(Ord. No. 2010-161, § 2, 11-16-10)

Full compliance by any person or entity with the provisions of this article shall not preclude the need to comply with other local, state or federal statutory or regulatory requirements, which may be required for the control of the discharge of pollutants into runoff and/or the protection of runoff quality.

(Ord. No. 2010-161, § 2, 11-16-10)

The provisions of §§ 1094.5 and 1094.6 of the Code of Civil Procedure set forth the procedure for judicial review of any act taken pursuant to this article. Parties seeking judicial review of any action taken pursuant to this article shall file such action within 90 days of the occurrence of the event for which review is sought.

(Ord. No. 2010-161, § 2, 11-16-10)