Livingston Municipal Code Ch. 12 Urban Stormwater Quality Management

This chapter shall be known as the “Urban Stormwater Quality Management Ordinance of the City of Livingston”.

(Ord. 625, passed 12-1-2015)

The purpose and intent of this chapter is to ensure the health, safety and general welfare of citizens, and to protect and enhance the quality of the city’s watercourses, water bodies, and wetlands pursuant to and consistent with all applicable state and federal laws related to stormwater management, including, but not limited to, the Clean Water Act (33 U.S.C. §§ 1251 et seq.), the national pollutant discharge elimination system (NPDES) regulations (40 C.F.R. part 122 et seq.) and the city’s stormwater discharge permit for small municipal storm sewer systems (MS4) pursuant to California State Water Resources Control Board (SWRCB) Order 2013-0001-DWQ.

(Ord. 625, passed 12-1-2015)

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

BEST MANAGEMENT PRACTICES (BMPs). Schedules of activities, prohibitions of practices, general good housekeeping practices, maintenance procedures, educational programs and other management practices to prevent or reduce the discharge of pollutants directly or indirectly to waters of the United States. BMPs also include treatment requirements, operating procedures and practices to control facility nonstormwater sources, spillage or leaks, sludge or waste disposal, drainage from raw materials storage and control of hazardous materials. The California Stormwater Quality Association (CASQA) stormwater best management practice handbooks for municipal, industrial/commercial and construction activity provide a detailed discussion of BMPs. BMPs are required to be implemented and maintained in a manner that is consistent with the CASQA best management practice handbooks or equivalent guidelines.

CALIFORNIA STATE WATER RESOURCES CONTROL BOARD (SWRCB). The state agency charged with administration of the national pollutant discharge elimination system (NPDES) permits.

CLEAN WATER ACT. The Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251 et seq.

CONTAMINATED GROUNDWATER. Groundwater mixed with a pollutant.

DIRECTOR. The Director of Public Works, or his or her designee.

ENFORCEMENT OFFICER. The Director, or his or her designee.

ENVIRONMENTAL PROTECTION AGENCY (EPA). The federal agency charged with enforcement of environmental laws and regulations.

NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PERMIT. Stormwater discharge permit for small municipal storm sewer systems (MS4), construction general permit, and industrial general permit issued by the SWRCB which authorizes the discharge of stormwater pursuant to the Clean Water Act (33 U.S.C. § 1342).

NONSTORMWATER DISCHARGE (NSWD). Any discharge to the storm drain system that is not composed entirely of stormwater.

NOTICE OF INTENT (NOI). A form submitted to the SWRCB notifying the agency of a person’s intent to be covered under the state general permit for the control of construction site runoff on projects that disturb one acre of land or more, in one or more phases of construction or for industrial activities.

PERSON. Any individual, partnership, corporation, firm, company, limited liability company, association, joint stock company, trust, estate, government entity or any other legal entity, or their legal representatives, agents or assigns.

POLLUTANT. Anything which causes deterioration of water quality such that it impairs subsequent and/or competing uses of water. Shall have the same meaning as defined in 40 C.F.R. part 122.2, and shall include, but not be limited to, any solid, liquid, gas or other substance that can alter the physical or chemical properties of water including, but not limited to, fertilizers, solvents, sludge, petroleum or petroleum products, solid waste, garbage, sand, dirt, animal waste, acids, bases, paints, oil and other automotive fluids, rubbish, debris, hazardous waste, chemicals, fresh concrete, yard waste from residential and commercial landscaping operations, fecal coliform, fecal streptococci, enterococcus, heavy metals, materials that result from constructing a building or structure, and nauseous or offensive matter of any kind.

PREMISES. Any building, lot, parcel, real estate, or land or portion of land, whether improved or unimproved, including adjacent sidewalks and parking strips.

REGIONAL WATER QUALITY CONTROL BOARD (RWQCB). The state division of the SWRCB charged with enforcement of the water quality laws and regulations in the State of California.

STORM DRAIN SYSTEM. All or any part of publicly or privately owned and maintained roads, streets, catch basins, curbs, gutters, ditches, human-made channels, canals, storm drains and dry wells located within public easements, rights-of-way, parks, common areas, retention areas, or other publicly or privately owned or maintained real property designed or used for collecting, holding, or conveying stormwater to waters of the United States, or designed to be percolated (i.e., dry well) into the groundwater system.

STORMWATER. Any surface flow, runoff and drainage consisting entirely of water from any form of natural precipitation, and resulting from such precipitation.

STORMWATER RUNOFF. Surface runoff and drainage associated with storm events.

UNLAWFUL CONNECTION. Any physical connection to a storm drain system which has not been permitted by the city.

UNLAWFUL DISCHARGE. Any discharge to the storm drain system that is not composed entirely of stormwater or stormwater discharges from private property designed or intended to be disposed of on site. Any spilling, leaking, pumping, pouring, emitting, emptying, ejecting, placing, releasing, leaching, dumping or disposing into or on any land in a manner that may cause pollution.

URBAN RUNOFF. Runoff collected by any roads with drainage systems, streets, curbs, gutters, catch basins, natural and artificial channels, ditches, aqueducts, storm drains, inlets, conduits or other drainage structures owned, operated or approved by the city.

(Ord. 629, passed 2-21-2017)

The Director or his or her designee shall have the authority to exercise the powers and perform the duties set forth in this chapter and to administer and enforce provisions of this chapter. The Director may designate other employees to exercise such powers and perform such duties, as he or she deems appropriate.

(Ord. 625, passed 12-1-2015)

This chapter shall be construed to assure consistency with requirements of the Federal Clean Water Act and its implemented regulations for stormwater management, and to comply with the SWRCB’s stormwater discharge permit for small MS4s, and shall be applicable to all stormwater generated on any developed or undeveloped urban lands lying within the city or conveyed by the public storm drain system.

(Ord. 625, passed 12-1-2015)

The standards set forth herein and promulgated pursuant to this chapter are minimum standards; therefore, this chapter does not intend nor imply that compliance by any person will ensure that there will be no contamination, pollution or unauthorized discharge of pollutants into waters of the United States caused by said person. This chapter shall not create liability on the part of the city, or any agent or employee thereof, for any damages, claims or liabilities that result from any dischargers, reliance on this chapter or any administrative decision lawfully made hereunder.

(Ord. 629, passed 2-21-2017)

(A) Discharge of substances. Unless expressly authorized or exempted by this chapter, no person shall cause or allow the discharge to a public right-of-way or public storm drain system of any substance that is not composed entirely of stormwater. Pollutant substances may include, but are not limited to, petroleum products (oil and grease), pesticides, fertilizers, household or industrial chemicals, industrial process wastewater, domestic sewage and animal waste. Other potential sources of pollutants include washdown from parking lots, private paved roads, gasoline stations, industrial facilities, business enterprises, dwelling units and car wash fundraisers.

(B) Disposing of materials. Unless expressly authorized or exempted by this chapter, no person shall use, store, spill, dump or dispose of materials in a manner that those materials could cause or contribute to the addition of pollutants to stormwater. Pollutant materials may include, but are not limited to, refuse, rubbish, garbage or other discarded or abandoned objects, articles, or other litter in or upon any street, alley, sidewalk, storm drain system, business place, or upon any public or private plot of land in the city so that the same can become a pollutant by entering the storm drain system except in containers or in lawfully established waste disposal facilities.

(C) Exemptions. The following discharges are exempt from the prohibitions set forth in subsections (A) and (B) of this section:

1. Authorized discharges. Discharges authorized by a separate NPDES or RWQCB permit;

2. Permissible categories. The following categories of nonstormwater discharges are permissible unless otherwise prohibited under subsection (C)3., (C)4. or (C)5. of this section:

(a) Water line flushing;

(b) “Incidental runoff” from landscaped areas defined as unintended amounts (volume) of runoff, such as unintended, minimal overspray from sprinklers that escapes the area of intended use;

(c) Diverted stream flows;

(d) Rising groundwaters;

(e) Uncontaminated groundwater infiltration as defined in 40 C.F.R. § 35.2005(b)(20);

(f) Uncontaminated pumped groundwater;

(g) Discharges from potable water sources;

(h) Foundation drains;

(i) Air conditioning condensation;

(j) Springs;

(k) Water from crawl space pumps;

(l) Footing drains;

(m) Individual residential car washing on private property in which no commercial enterprise or nonprofit fundraising is being conducted in the washing of those vehicles;

(n) Flows from riparian habitats and wetlands;

(o) Dechlorinated swimming pool discharges;

(p) Discharges from emergency firefighting activity;

(q) Any discharge that the enforcement official, the local health officer or the Regional Water Quality Control Board determines, in writing, is necessary for the protection of the public health and safety;

(r) Any discharge caused by flooding or other natural disaster, which could not have been reasonably foreseen or mitigated for in advance by the discharger, as determined by the enforcement official; or

(s) Any other activity that the Director identifies is not a significant contributor of pollutants during the city’s NPDES stormwater discharge permit for small MS4s’ permit term.

3. Written notice. No person shall discharge to public storm drain system any exempted discharge under this subsection (C) if the Director or assigned designee identifies and provides written notice to the person that the discharge has the potential to be a source of pollutants to receiving waters, waterways, or groundwater;

4. Unlawful discharge. No person shall discharge to the public storm drain system anything that would result in or contribute to a violation of the city’s NPDES stormwater discharge permit for small MS4s. Liability for any such unlawful discharge shall be the responsibility of the person causing or responsible for the discharge;

5. Unlawful connections. No person shall establish, use, maintain or continue any unlawful connection to the public storm drain system which has caused or is likely to cause a violation of this section. This prohibition is retroactive and shall apply to any connection that was made in the past, regardless of whether it was made under permit or other authorization, or whether it was permissible under the law or practices applicable or prevailing at the time of the connection. A person is considered to be in violation of this chapter if the person connects a line conveying sewage to a stormwater conveyance system, or allows such a connection to continue; and

6. Excess irrigation runoff prohibited. Nonstormwater runoff discharge that is not incidental is prohibited unless otherwise specified in this chapter. INCIDENTAL RUNOFF is defined as unintended amounts (volume) of runoff, such as unintended, minimal overspray from sprinklers that escapes the area of intended use. Water leaving an intended use area is not considered incidental if it is part of the facility design, if it is due to excessive application, if it is due to intentional overflow or application, or if it is due to negligence. No person shall allow irrigation runoff in excess of incidental runoff to occur. Any person responsible for controlling runoff in excess of incidental runoff shall:

(a) Detect leaks (for example, from broken sprinkler heads) and correct the leaks within 72 hours of learning of the leak;

(b) Properly design and aim sprinkler heads;

(c) Not irrigate during precipitation events; and

(d) Manage pond containing recycled water such that no discharge occurs unless the discharge is a result of a 25-year, 24-hour storm event or greater, and the appropriate regional water board is notified by e-mail no later than 24 hours after the discharge. The notification is to include identifying information, including the permittee’s name and permit identification number.

(Ord. 629, passed 2-21-2017)

(A) Proof of permit coverage, stormwater pollution prevention plan required.

1. All persons owning or operating premises or engaged in activities who are required by federal or state law to submit to SWRCB an NOI to comply with an NPDES stormwater discharge permit shall provide proof of permit coverage and the stormwater pollution prevention plan (SWPPP) to the Director upon request.

2. Facilities required to apply for a stormwater discharge permit are identified in attachment A of the state’s industrial general permit (IGP) and may include, but are not limited to, maintenance operations, storage facilities, manufacturing activity, assembly operations, equipment operations, vehicle loading or fueling, food processing, trucking or cleanup procedures which are carried out partially or wholly out of doors.

(B) Authorization to adopt and impose best management practices (BMPs). Every person or entity, including the categories listed below, undertaking any activity or use of premises that may cause or contribute to stormwater pollution or contamination or illicit discharges shall comply with best management practice (BMPs) consistent with the California Stormwater Quality Association (CASQA) best management practice handbooks or equivalent guidelines.

(C) Business related activities.

1. Stormwater pollution prevention plan. The enforcement official may require any business in the city engaged in activities that may result in pollutant discharges to develop and implement a stormwater pollution prevention plan, which shall include an employee training program. An employee training program is a documented employee training program that may be required to be implemented by a business pursuant to a stormwater pollution prevention plan, for the purpose of educating its employees on methods of reducing discharge of pollutants to the stormwater conveyance system. Business activities that may require a stormwater pollution prevention plan include, but are not limited to, maintenance, storage, manufacturing, assembly, equipment operations, vehicle loading or fueling, or cleanup procedures carried out partially or wholly out of doors.

2. Coordination with hazardous materials release response plans and inventory. Any business requiring a hazardous materials release response and inventory plan, under the Cal. Health and Safety Code Division 20, Chapter 6.95,(commencing with § 25500) shall include in that plan provisions for compliance with this chapter, including the provisions prohibiting nonstormwater discharges and illegal discharges, and requiring the release of pollutants to be reduced to the maximum extent practicable.

3. Coordination with hazardous waste generator contingency plan and emergency procedures. Any business requiring a hazardous waste generator contingency plan and emergency procedures, pursuant to Cal. Code of Regulations Title 22, Division 4.5, Chapter 15, Article 4, §§ 66265.51 to 66265.56, shall include in that plan provisions for compliance with this chapter, including the provisions prohibiting nonstormwater discharge and illegal discharges, and requiring the release of pollutants to be reduced to the maximum extent practicable.

4. Petition for reconsideration.

(a) If a BMP is required by the Director or City Engineer to prevent a pollutant from entering the public storm drain system, the person receiving the notice of such a requirement may petition the City Council of the city to reconsider the application of the BMPs to the premises or activity.

(b) The written petition must be received by the City Clerk within ten working days of the notice issued by the Director or City Engineer. The petition shall set forth any reasons as to why application of BMPs to the premises or activity should not be required and any proposed alternatives to such requirement. The City Council will act within 30 calendar days of the filing of the petition.

(Ord. 629, passed 2-21-2017)

(A) Construction.

1. Any person performing construction activities in the city shall prevent pollutants from entering the stormwater conveyance system and comply with all applicable federal, state and local laws, ordinances or regulations, including, but not limited to, the current California NPDES general permit for stormwater discharges associated with construction activity (construction general permit) and the city’s urban stormwater quality management and discharge control ordinance. All construction projects, regardless of size, having soil disturbance or activities exposed to stormwater must, at a minimum, implement BMPs for erosion and sediment controls, soil stabilization, dewatering, source controls, pollution prevention measures and prohibited discharges.

2. Any person subject to a construction activity NPDES stormwater discharge permit shall comply with all provisions of such permit. Proof of compliance with said permit may be required in a form acceptable to the enforcement official prior to, or as a condition of, a subdivision map, site plan, building permit, grading permit, or development or improvement plan, upon inspection of the facility, during any enforcement proceeding or action, or for any other reasonable cause. Prior to issuance of a construction permit or approval of the proposed improvement plans, for projects subject to the state’s current construction NPDES general permit, the WDID number and the SWPPP shall be submitted to the city. For projects with less than an acre of soil disturbance or not subject to the construction general permit, an erosion and sediment control plan (ESCP) and the ESCP worksheet must be submitted to the city.

3. (a) As required by its phase II MS4 NPDES permit, the city will conduct stormwater compliance inspections at applicable construction sites that have areas of soil disturbance exposed to stormwater. The inspection will be conducted by a city inspector or agent working for the city who is a qualified SWPPP practitioner (QSP) or is supervised by a QSP. The inspection will evaluate the construction site’s compliance to the city’s stormwater ordinances. Inspections will be billed by the city to the project owner. The following is the risk rating system and inspection frequency the city will use, which is analogous to the risk rating used by the California construction general permit:

(1) Projects not subject to the CGP or that have an erosivity waiver will have a presoil disturbance inspection and a project completion inspection;

(2) Projects that are risk 1/LUP type 1 or risk 2/LUP type 2 will have a presoil disturbance inspection, monthly inspections, and a project completion inspection; and

(3) Projects that are risk 3/LUP type 3 will have a presoil disturbance inspection, bimonthly (twice per month) inspections, and a project completion inspection.

(b) If a project has been issued two consecutive notices of violation or does not correct a previously issued notice of violation by the due date set by the inspector, the project’s “threat to water quality” will be elevated by the city to the next highest category. This elevation of risk will not affect the risk rating for the construction general permit.

(B) Violation; liability. Any person performing construction shall not cause or contribute to a violation of the NPDES stormwater discharge permit issued by the SWRCB to the city. Liability for any such discharge shall be the responsibility of the person causing or responsible for the discharge. Any person performing construction shall undertake BMPs to minimize pollutants (including sediments) from leaving the construction site, provide protection from accidental discharge of pollutants to the public storm drain system, and comply with the cleanup and notification requirements of this chapter. The site operator shall ensure erosion and sediment control and control of waste and properly dispose of waste, such as discarded building materials, concrete truck washout, chemicals, litter and sanitary waste at the construction site that may cause adverse impacts to water quality. Such measures shall include the requirements imposed by federal, state, county or local authorities. BMPs are site specific and are consistent with the California Stormwater Quality Association (CASQA) best management practice handbooks or equivalent guidelines.

(C) Petition for reconsideration of BMP requirement. If a BMP is required by the Director or City Engineer to prevent a pollutant from entering the public storm drain system, the person receiving the notice of such a requirement may petition the City Council of the city to reconsider the application of the BMPs to the premises or activity. The written petition must be received within ten working days at the issuance of the notice by the Director or City Engineer and shall set forth any reasons as to why application of BMPs to the premises or activity should not be required and any proposed alternatives to such a requirement. The City Council will act within 30 calendar days of the filing of the petition.

(Ord. 629, passed 2-21-2017)

To reduce the volume of stormwater runoff and minimize typical pollutants associated with stormwater runoff from development or redevelopment projects, the city requires that the following measures be implemented as part of the project for compliance with the NPDES stormwater permit.

(A) Site design measures for small development projects.

1. Projects that create and/or replace (including projects with no net increase in impervious footprint) between 2,500 square feet and 5,000 square feet of impervious surface, including detached single-family homes that create and/or replace 2,500 square feet or more of impervious surface and are not part of a larger plan of development shall implement one or more of the following site design measures to reduce project site runoff and minimize associated pollutants:

(a) Stream setbacks and buffers. A vegetated area including trees, shrubs, and herbaceous vegetation shall be retained (if existing) or established to protect a stream system or lake reservoir;

(b) Soil quality improvement and maintenance. Improve and/or maintain the soil through the incorporation of soil amendments and creation of microbial community;

(c) Tree planting and preservation. Plant and/or preserve healthy established trees including evergreens and deciduous varieties, as applicable;

(d) Rooftop and impervious area disconnection. Reroute rooftop drainage pipes to drain rainwater to rain barrels, cisterns or on site permeable areas instead of the storm drain system;

(e) Porous pavement. Incorporate use of porous pavement, porous concrete and/or other permeable materials for on site flat work (driveways, walkways, patios, parking areas and the like) instead of traditional pavement or concrete;

(f) Green roofs. Incorporate use of a vegetative layer grown on a roof (rooftop garden); and

(g) Vegetated swales. Construct an on site vegetated, open channel swale designed specifically to treat and attenuate stormwater runoff.

2. Project proponents shall quantify the runoff reduction resulting from implementation of one or more of the above site design measures using the State Water Board stormwater multiple application and report tracking system (SMARTS) postconstruction calculator or another methodology determined to be acceptable by the city.

(B) Regulated projects. Projects that create and/or replace 5,000 square feet or more of impervious surface.

1. Regulated projects shall implement site design measures, source control measures, low impact development (LID) standards, and baseline hydromodification management described in this chapter to effectively reduce runoff and pollutants associated with runoff. Proponents of regulated projects shall quantify the runoff reduction resulting from implementation of these measures.

2. Redevelopment projects, road projects, and linear underground/overhead projects (LUPs) are a special class of regulated project: These projects shall implement the following special requirements:

(a) Increase of more than 50%. Where a redevelopment project results in an increase of more than 50% of the impervious surface of a previously existing development, runoff from the entire project (including the existing, new and replaced impervious area) is regulated; in this case, the entire project site is considered to be part of the regulated project;

(b) Increase of less than 50%. Where a redevelopment project results in an increase of less than 50% of the impervious surface of a previously existing development, only runoff from the new and/or replaced impervious surface of the project is considered part of the regulated project;

(c) Road projects and LUPs. Any of the following types of road projects and LUPs that create 5,000 square feet or more of newly constructed contiguous impervious surface (either a newly constructed public road project or new private development projects that fall under the authority of the city), shall be considered a regulated project; however, treatment of runoff of the eighty-fifth percentile that cannot feasibly be infiltrated on site shall follow U.S. EPA guidance regarding green infrastructure to the extent possible. An LUP that is a discreet location that has 5,000 square feet or more of newly constructed impervious service shall be considered a regulated project. Types of projects include:

(1) Construction of new streets or roads, including sidewalks and bicycle lanes built as part of the new streets or roads; and

(2) Widening of existing streets or roads with additional traffic lanes.

A. Where the addition of traffic lanes results in an alteration of more than 50% of the impervious surface of an existing street or road, runoff from the entire project (including the existing, new, and/or replaced impervious surfaces) is considered to be part of the regulated project.

B. Where the addition of traffic lanes results in an alteration of less than 50% of the impervious surface of an existing street or road, only the runoff from new and/or replaced impervious surface of the project is considered to be part of the regulated project.

(d) Construction. Construction of LUPs;

(e) Exclusions. Specific exclusions are:

(1) Sidewalks built as part of new streets or roads and built to direct stormwater runoff to adjacent vegetated areas;

(2) Bicycle lanes that are built as part of new streets or roads that direct stormwater runoff to adjacent vegetated areas;

(3) Impervious trails built to direct stormwater runoff to adjacent vegetated areas, or other nonerodible permeable areas, preferably away from creeks or toward the outboard side of levees;

(4) Sidewalks, bicycle lanes or trails constructed with permeable surfaces; and

(5) Trenching, excavation and resurfacing associated with LUPs; pavement grinding and resurfacing of existing roadways and parking lots; construction of new sidewalks, pedestrian ramps or bike lanes on existing roadways; or routine replacement of damaged pavement such as pothole repair or replacement of short, noncontiguous sections of roadway. Where pavement is removed and base rock or soil is exposed, if more than 5,000 square feet is replaced it is a regulated project and not routine maintenance.

(C) Source control measures. Operators of regulated projects with pollutant generating activities and sources shall implement permanent and/or operation source control measures, as applicable. Source control measures consistent with the recommendations from the CASQA stormwater BMP handbook for new development and redevelopment or equivalent manual, shall be implemented for the following pollutant generating activities and sources:

• 1. Accidental spills or leaks;
• 2. Interior floor drains;
• 3. Parking/storage areas and maintenance;
• 4. Indoor and structural pest control;
• 5. Landscape/outdoor pesticide use;
• 6. Pools, spas, ponds, decorative fountains and other water features;
• 7. Restaurants, grocery stores, and other food service operations;
• 8. Refuse areas;
• 9. Industrial processes;
• 10. Outdoor storage of equipment or materials;
• 11. Vehicle and equipment cleaning;
• 12. Vehicle and equipment repair and maintenance;
• 13. Fuel dispensing areas;
• 14. Loading docks;
• 15. Fire sprinkler test water;

16. Drain or wash water from boiler drain lines, condensate drain lines, rooftop equipment, drainage sumps and other sources;

17. Unauthorized nonstormwater discharges; and

18. Building and grounds maintenance.

(D) Low impact development (LID) standards. All regulated projects shall implement low impact development standards designed to reduce runoff and treat stormwater conforming to the following criteria.

1. Site assessment. Developers of regulated projects shall assess and evaluate how site conditions (i.e., soils, vegetation and flow paths) will influence the placement of buildings and paved surfaces; this evaluation shall be used to satisfy the goals of capturing and treating runoff and assuring the goals of LID are incorporated into the project design. The following methods shall be used to optimize the site layout:

(a) Define the development envelope and protected areas, identifying areas that are most suitable for development and areas to be left undisturbed;

(b) Concentrate development on portions of the site with less permeable soils and preserve areas that can promote infiltration;

(c) Limit overall impervious coverage of the site with paving and roofs;

(d) Set back development from creeks, wetlands and riparian habitats;

(e) Preserve significant trees;

(f) Conform the site layout along natural landforms;

(g) Avoid excessive grading and disturbance of vegetation and soils;

(h) Replicate the site’s natural drainage patterns; and

(i) Detain and retain runoff throughout the site.

2. Drainage management areas (DMAs). As part of the design, the project site shall be divided into discrete DMAs. Each DMA shall manage runoff using site design measures, source controls and/or stormwater treatment and baseline hydromodification measures.

3. Numeric sizing criteria for stormwater retention and treatment. Regulated projects shall be designed to evapotranspire, infiltrate, harvest/use, and/or biotreat stormwater to satisfy at least one of the following hydraulic sizing design criteria.

(a) Volumetric criteria.

(1) The stormwater runoff volume determined using the formula and volume capture coefficients in Urban Runoff Quality Management, Water Environment Federation (WEF) Manual of Practice No. 23/ASCE Manual of Practice No. 87 (1998); or

(2) The volume of annual runoff required to achieve 80% or more capture, determined in accordance with the methodology in Section 5 of the CASQA’s Stormwater Best Management Practice Handbook, New Development and Redevelopment (2003), using local rainfall data;

(b) Flow based criteria.

(1) The flow of runoff produced from a rain event equal to at least 0.2 inch per hour intensity; or

(2) The flow of runoff produced from a rain event equal to at least two times the eighty-fifth percentile hourly rainfall intensity as determined from local rainfall records.

4. Site design measures. Site design measures as described in this chapter shall be used to reduce the amount of runoff, to the extent technically feasible, to achieve the infiltration, evapotranspiration and/or harvesting/reuse of the eighty-fifth percentile 24-hour storm runoff event; any remaining runoff from impervious DMAs may then be directed to one or more bioretention facilities.

5. Source controls. Permanent and/or operation source control measures as described in this chapter shall be incorporated into the project design.

6. Stormwater treatment measures and baseline hydromodification management measures. After implementation of site design measures, remaining runoff from impervious DMAs must be directed to one or more facilities designed to infiltrate, evapotranspire, and/or bioretain the amount of runoff determined from numeric sizing criteria for stormwater retention and treatment. The facilities must be demonstrated to be at least as effective as a bioretention system with the following design parameters:

(a) Maximum surface loading rate of five inches per hour, based on the flow rates calculated. A sizing factor of 4% of tributary impervious area may be used;

(b) Minimum surface reservoir volume equal to surface area times a depth of six inches;

(c) Minimum planting medium depth of 18 inches. The planting medium must sustain a minimum infiltration rate of five inches per hour throughout the life of the project and must maximize runoff retention and pollutant removal. A mixture of sand (60% to 70%) meeting the specifications of American Society For Testing And Materials (ASTM) C33 and compost (30% to 40%) may be used;

(d) Subsurface drainage/storage (gravel) layer with an area equal to the surface area and having a minimum depth of 12 inches;

(e) Underdrain with discharge elevation at top of gravel layer;

(f) No compaction of soils beneath the facility, or ripping/loosening of soils if compacted;

(g) No liners or other barriers interfering with infiltration; and

(h) Appropriate plant palette for the specified soil mix and maximum available water use.

7. Alternative designs. Facilities, or a combination of facilities, of a different design than described in subsection (D)6. of this section may be permitted if all of the following measures of equivalent effectiveness are demonstrated:

(a) Equal or greater amount of runoff infiltrated or evapotranspired;

(b) Equal or lower pollutant concentrations in runoff that is discharged after biotreatment;

(c) Equal or greater protection against shock loadings and spills; and

(d) Equal or greater accessibility and ease of inspection and maintenance.

8. Allowed variations for special site conditions. The bioretention system design parameters in subsection (D)6. of this section may be adjusted for the following special site conditions:

(a) Facilities located within ten feet of structures or other potential geotechnical hazards established by the geotechnical expert for the project may incorporate an impervious cutoff wall between the bioretention facility and the structure or other geotechnical hazard;

(b) Facilities with documented high concentrations of pollutants in underlying soil or groundwater, facilities located where infiltration could contribute to a geotechnical hazard, and facilities located on elevated plazas or other structures may incorporate an impervious liner and may locate the underdrain discharge at the bottom of the subsurface drainage/storage layer (this configuration is commonly known as a “flow through planter”);

(c) Facilities located in areas of high groundwater, highly infiltrative soils or where connection of underdrain to a surface drain or to a subsurface storm drain are infeasible, may omit the underdrain; and

(d) Facilities serving high risk areas such as fueling stations, truck stops, auto repairs and heavy industrial sites may be required to provide additional treatment to address pollutants of concern unless these high risk areas are isolated from stormwater runoff or bioretention areas with little chance of spill migration.

9. Exceptions to requirements for bioretention facilities. If the use of bioretention or a facility of equivalent effectiveness is infeasible (due to construction constraints, not financial constraints), other types of biotreatment or media filters (such as tree box type biofilters or in-vault media filters) may be used for the following categories of regulated projects:

(a) Projects creating or replacing an acre or less of impervious area, and located in a designated pedestrian oriented commercial district (i.e., smart growth projects), and having at least 85% of the entire project site covered by permanent structures;

(b) Facilities receiving runoff solely from existing (preproject) impervious areas; and

(c) Historic sites, structures or landscapes that cannot alter their original configuration in order to maintain their historic integrity.

(E) Hydromodification management.

1. Projects that create and/or replace one acre or more of impervious surface are considered to be hydromodification management projects. A project that does not increase impervious surface area over the preproject condition is not a hydromodification management project.

2. The postproject runoff from a hydromodification management project shall not exceed the estimated preproject flow rate for the two-year, 24-hour storm.

(Ord. 629, passed 2-21-2017)

(A) Maintenance responsibility.

1. Owners of property on which a regulated project has been developed shall agree to accept responsibility for the operation and maintenance of the on site installed source control measures, treatment systems and hydromodification controls. This agreement shall be in the form of a signed and notarized operation and maintenance agreement to be recorded in the Merced County Recorder’s office; responsibility shall transfer to any successors in interest of the property.

2. Multi-parcel or multiowner projects (gated communities, condominiums and the like) shall operate and maintain any commonly owned source control measures, treatment systems, and hydromodification controls either through a homeowners’ association, through a condominium agreement, or other legally enforceable agreement or mechanism.

3. Source control measures, treatment systems or hydromodification controls that are publicly owned or built within the public rights-of-way shall be operated and/or maintained by the city or other public agency using funds levied on the development or redevelopment project in the form of assessment districts or other acceptable collection mechanism for the purpose of reducing runoff and mitigating pollutants as described in this chapter.

4. Owners of property on which a regulated project has been developed shall agree to and consent to these assessment fees as determined by the city at its sole discretion. This assessment district shall be recorded in the Merced County Recorder’s office; responsibility shall transfer to any successors in interest of the property.

(B) Inspection authorization. The recorded operation and maintenance agreement shall include a provision authorizing the city to access the project site for the sole purpose of performing inspections of the installed treatment systems and hydromodification controls.

(Ord. 629, passed 2-21-2017)

(A) Every person owning, leasing property or otherwise controlling property (“owner”) through which a watercourse or publicly owned irrigation and/or stormwater canal or channel (“watercourse”) originates or passes shall keep and maintain that part of the watercourse within the property free of trash, debris and other obstacles that would pollute, contaminate or significantly retard the flow of water through the watercourse. The owner shall not remove healthy bank vegetation beyond that actually necessary for maintenance, nor perform vegetation management in such a manner as to increase the vulnerability of the watercourse to erosion. The owner shall be responsible for maintaining and stabilizing that portion of the watercourse that is within that owner’s property, within regulatory frameworks, to a reasonable standard as determined by the Director, in order to protect against erosion and degradation of the watercourse originating or passing through the property.

(B) Every owner of property through which a watercourse originates or passes shall maintain existing privately owned structures within or adjacent to a watercourse, so that such structures will not become a hazard to the use, function or physical integrity of the watercourse.

(C) Every owner is responsible to comply with all laws, rules and regulations of state or federal agencies that may have jurisdiction over wetlands and waterways. Maintenance must be done in a manner that does not adversely impact waterway species.

(Ord. 625, passed 12-1-2015)

(A) All persons in charge of a facility, activity or development or responsible for emergency response shall have personal responsibility to train the premises’ personnel and maintain notification procedures to assure immediate notification is provided to the city of any suspected, confirmed, or unconfirmed release of material, pollutants or waste creating a risk of discharge into the city’s storm drain system. As soon as any owner or operator has actual or constructive knowledge of any discharge which may result in pollutants entering the public storm drain system, such person shall promptly take all necessary steps to ensure the discovery of the source and the extent and proceed with containment and cleanup of such discharge.

(B) The owner or operator shall notify the Director or the City Engineer of the discharge in both of the following manners:

1. By telephone as soon as practical or by calling 9-1-1, if hazardous materials are involved; and

2. By written report identifying the discharge source, extent, pollutant, measures taken to mitigate the discharge and preventative measures put into place to prevent a subsequent discharge.

(Ord. 625, passed 12-1-2015)

(A) Authority to conduct inspections. The Director shall have the authority to conduct reasonable inspections of facilities, activities or developments described in this chapter as may be deemed necessary to carry out the purpose of this chapter. Such inspections shall be conducted with the consent of the property owner and/or the person possessing or controlling the property. If such consent cannot be obtained, an inspection shall be conducted pursuant to a court issued inspection warrant. Such inspections may also be done in conjunction with routine inspections conducted by other public agencies such as Emergency Services or Health Department.

(B) Authority to sample and establish sampling devices. With the consent of the owner or occupant or pursuant to an inspection warrant, any authorized enforcement officer may establish on any property such devices as are necessary to aid in the pursuit of the inquiry or in the recordation of the activities on site.

(C) Requirement to test or monitor. Any authorized enforcement officer may require that any person engaged in any activity and/or owning or operating any facility which has been determined to cause or contribute to stormwater pollution or contamination, unlawful discharge and/or discharge of nonstormwater to the storm drain system, undertake such monitoring activities and/or analysis and furnish such reports as the officer may specify. The costs of these activities, analysis and reports required shall be borne by the owner/operator of the facility and/or activity.

(Ord. 625, passed 12-1-2015)

Unless otherwise specified by this chapter, the violation of the provisions of this chapter shall constitute a misdemeanor. Any such violation constituting a misdemeanor, at the discretion of the authorized enforcement officer, may be charged and prosecuted as an infraction.

(Ord. 625, passed 12-1-2015)

Upon conviction of a misdemeanor or an infraction, a person shall be subject to payment of a fine or imprisonment, or both.

(A) Civil penalties. In addition to any other enforcement authority contained in this chapter, the Director or City Engineer shall issue a civil citation to any person who has violated, or continues to violate, any provision of this chapter or any related laws or regulations. A person who violates any requirement of this chapter or any applicable NPDES stormwater discharge permit condition shall be civilly liable to the city for a sum not to exceed $10,000 per day per violation.

(B) Criminal penalties. A person who willfully or negligently violates any provision of this chapter, or any related laws or regulations shall, upon conviction, be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed $15,000 per day per violation and/or imprisonment for a period not to exceed six months.

(Ord. 625, passed 12-1-2015)

Causing, permitting, aiding, abetting or concealing a violation of any provision of this chapter shall be unlawful and punishable as a misdemeanor.

(Ord. 625, passed 12-1-2015)

(A) In addition to the penalties hereinbefore provided, 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, and is declared and deemed a nuisance, and may be summarily abated and/or restored by any authorized enforcement officer, and/or civil action to abate, enjoin or otherwise compel the cessation of such nuisance may be taken by legal counsel.

(B) The cost of such abatement and restoration shall be borne by the property owner and/or operator committing the violation, and the cost thereof shall be a lien upon and against any such property and such lien shall continue in existence until the same shall be paid. If the lien is not satisfied by the owner of the property within three months, the property may be sold in satisfaction thereof in a like manner as other real property is sold under execution. In any administrative or civil proceeding under this chapter in which the city prevails, the city shall be awarded all costs of suit and reasonable attorney fees.

(Ord. 625, passed 12-1-2015)

In addition to any other remedies provided in this section, this chapter may be enforced by civil action brought by the city. In any such action, the court may grant, as appropriate, any or all of the following remedies:

(A) A temporary and/or permanent injunction;

(B) Assessment of the violator/parcel owner for the costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and bringing legal action under this subsection (B);

(C) Costs incurred in removing, correcting, or terminating the adverse effects resulting from the violation; and

(D) Compensatory damages for loss or destruction to water quality, wildlife, fish, and aquatic life. Assessments under this subsection (D) shall be paid to the city to be used exclusively for costs associated with monitoring and establishing stormwater discharge control systems and/or implementing or enforcing the provisions of this chapter.

(Ord. 625, passed 12-1-2015)

(A) Notice of violation. Whenever the Director finds that a person has violated a prohibition or failed to meet a requirement of this chapter, the Director may order compliance by written notice of violation to the responsible person. Such notice may require without limitation:

• 1. The performance of monitoring, analyses and reporting;
• 2. The elimination of illicit connections or discharges;
• 3. That violating discharges, practices or operations shall cease and desist;

4. The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property; and

5. The implementation of source control or treatment BMPs.

(B) Completion deadline. If abatement of a violation and/or restoration of affected property is required, the notice shall set forth a deadline within which such remediation or restoration must be completed. Said notice shall further advise that, should the violator fail to remediate or restore within established deadlines, the work will be done by the city or a contractor designated by the Director and the expense thereof shall be charged to the violator.

(C) Abatement. Upon a cease and desist order to stop, clean up and abate a discharge:

1. A violator shall abate and clean up their discharge, spill or pollutant release within 72 hours of notification; high risk spill should be cleaned up as soon as possible;

2. A violator shall complete abatement within 30 days of notification, for uncontrolled sources of pollutants that could pose an environmental threat;

3. If violator does not complete abatement within the required deadline, the Director shall provide a new deadline and notify the appropriate regional water board when all parties agree that cleanup activities cannot be completed within the original time frame and notify the appropriate regional water board in writing within five business days of the determination that the time frame requires revision.

(Ord. 625, passed 12-1-2015)

(A) Notwithstanding the provisions of urgency abatement, any person receiving a notice of violation may appeal the determination of the director to the City Manager.

(B) The notice of appeal must be received by the City Manager within 15 days from the date of the notice of violation.

(C) Hearing on the appeal before the City Manager or his or her designee shall take place within 15 days from the date of the city’s receipt of the notice of appeal. The decision of the City Manager shall be final.

(Ord. 625, passed 12-1-2015)

If the violation has not been corrected pursuant to the requirements set forth in the notice of violation, or, in the event of an appeal, within ten days of the decision of the City Manager upholding the decision of the director, then the city or a contractor designated by the Director shall, pursuant to a warrant issued by a court of competent jurisdiction, enter upon the subject’s private property and take any and all measures reasonably necessary to abate the violation and/or restore the property. It shall be unlawful for any person, owner, agent or person in possession of any premises to refuse to allow the city or designated contractor to enter upon the premises for the purposes set forth above.

(Ord. 625, passed 12-1-2015)

(A) Within 30 days after abatement of the nuisance by city, the Director shall notify the property owner of the property of the cost of abatement, including administrative costs, investigative costs, cost of testing, hearing costs and the like. The property owner may file a written protest objecting to the amount of the assessment with the City Clerk within 15 days. The City Clerk shall set the matter for public hearing by the City Council. The decision of the City Council shall be final.

(B) If the amount due is not paid within ten days of the decision of the City Council or the expiration of the time in which to file an appeal under this section, the charges shall become a special assessment against the property and shall constitute a lien on the property for the amount of the assessment. A copy of the resolution shall be turned over to the County Auditor so that the Auditor may enter the amount of the assessments against the parcel as it appears on the current assessment roll, and the tax collector shall include the amount of the assessment on the bill for taxes against the parcel of land.

(Ord. 625, passed 12-1-2015)

(A) The Director is authorized to require immediate abatement of any violation of this chapter which constitutes an immediate threat to the health, safety or well being of the public. If any such violation is not abated immediately as directed by the Director, the city is authorized to enter onto private property and to take any and all measures required to remediate the violation.

(B) Any expense related to such remediation undertaken by the city shall be fully reimbursed by the property owner and/or responsible party.

(C) Any relief obtained under this section shall not prevent city from seeking other and further relief authorized under this chapter.

(Ord. 625, passed 12-1-2015)

In lieu of enforcement proceedings, penalties and remedies authorized by this chapter, the Director may impose upon a violator alternative compensatory actions, such as storm drain stenciling, attendance at compliance workshops, creek cleanup and the like.

(Ord. 625, passed 12-1-2015)

Any person who violates any provision of this chapter or any rule or regulation issued pursuant to this chapter may also be in violation of the Clean Water Act and/or Porter-Cologne Act, being Cal. Water Code §§ 13000 et seq., and may be subject to the sanctions of those acts including civil and criminal penalties. Any enforcement action authorized under this chapter shall also include written notice to the violator of this potential liability.

(Ord. 625, passed 12-1-2015)

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

(Ord. 625, passed 12-1-2015)

In the event of any conflict between this chapter and any federal or state law, regulation, permit or other ordinance of the city, the requirement which establishes the stricter standard shall govern. To the extent permitted by law, nothing in this chapter shall preclude enforcement of any other applicable law.

(Ord. 625, passed 12-1-2015)