Moraga Municipal Code Ch. 13.04 Stormwater Management and Discharge Control

Footnotes:

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Editor's note— Ord. No. 264, § 1, adopted October 26, 2016, repealed the former Ch. 13.04 and enacted a new Ch. 13.04 as herein set out. The former Ch. 13.04, §§ 13.04.010—13.04.210, pertained to similar subject matter, and derived from Ord. 204 § 2 (part), 2005.

(a) The intent of this chapter is to protect and enhance the water quality in the town of Moraga's watercourses pursuant to, and consistent with the Porter-Cologne Water Quality Control Act (Water Code section 13000 et seq.) and the Federal Clean Water Act (33 U.S.C. Section 1251 et seq.). In the event all or certain provisions of such acts or their implementing regulations and policies are amended or declared invalid or unenforceable by a court of law, the town shall interpret this chapter consistent with the law then in effect.

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

(c) It is the purpose of the town council in enacting this chapter to protect the health, safety and general welfare of Moraga's citizens by:

(1) Minimizing non-stormwater discharges, whose pollutants would otherwise degrade the water quality of local streams, to the stormwater system.

(2) Minimizing increases in nonpoint source pollution caused by stormwater runoff from development that would otherwise degrade local water quality.

(3) Controlling the discharge to the town's stormwater system from spills, dumping or disposal of materials other than stormwater.

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

(Ord. No. 264, § 1, 10-26-2016)

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

(a) "Applicant" means any person applying to the town for approval of a project.

(b) "Best management practices" or "BMP" are structural devices, measures, stormwater management facilities, activities, prohibitions, or practices; general good housekeeping, pollution prevention practices, maintenance procedures, and other management practices, to prevent or reduce the discharge of pollutants directly or indirectly to watercourses, water bodies, and wetlands. Examples of best management practices include, but are not limited to, those described in publications by the United States Environmental Protection Agency, the California Water Boards, the California Stormwater Quality Association, the Bay Area Stormwater Management Agencies Association, the Contra Costa Clean Water Program, and the town of Moraga.

(c) "Development project" means the whole of an action which has the potential for adding or replacing or resulting in the addition or replacement of roofs, pavement, or other impervious surfaces and thereby resulting in increased flows and stormwater pollutants. A development project includes, but is not limited to, a rezoning, tentative map, parcel map, conditional use permit, variance, site development permit, design review, or building permit.

(d) "Development runoff requirements" shall mean the provisions in the town's NPDES permit that contain performance standards to address both the construction and post-construction phase impacts of new projects and redeveloped projects on stormwater quality.

(e) "Director" shall mean the director of public works of the town of Moraga or his or her designee.

(f) "Full trash capture system" shall mean any device or series of devices that traps all particles retained by a five-mm mesh screen and has a design treatment capacity of not less than the peak flow rate resulting from a one-year, one-hour, storm in the tributary drainage catchment area.

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

(h) "Non-stormwater discharge" is any addition of any pollutant to the stormwater system, except discharges pursuant to a NPDES permit, or discharges further exempted in Section 13.04.060(c) and (d) of this chapter.

(i) "NPDES" means National Pollutant Discharge Elimination System.

(j) "Officer" shall mean those individuals designated by the director to act as authorized enforcement officers.

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

(l) "Premises" shall mean any building, structure, facility, or installation. Premises shall include the surrounding grounds or other appurtenances such as adjacent sidewalks and parking strips. Examples of Premises include, but are not limited to, parking lots, gasoline stations, industrial facilities, and other commercial enterprises.

(m) "Responsible person" shall mean the owner, occupant, or entity responsible for any premises, or who engages in any activity, from which there is or may be a Non-stormwater Discharge or any person who releases pollutants to the stormwater system.

(n) "Stormwater" shall mean flow on the surface of the ground resulting from precipitation.

(o) "Stormwater control plan" shall mean a plan that meets those criteria contained in the guidebook.

(p) "Stormwater management facility" shall mean any device that utilizes detention, retention, filtration, harvest for reuse, evapotranspiration or infiltration to provide treatment (and/or control volume, flows, and durations) of stormwater for purposes of compliance with development runoff requirements, including without limitation a full trash capture system.

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

(r) "Town's NPDES permit" shall mean the NPDES permit issued to the town of Moraga, Permit No. CAS612008 and any subsequent amendment, reissuance or successor to this NPDES permit.

(Ord. No. 264, § 1, 10-26-2016)

The director shall administer this chapter for the town.

(Ord. No. 264, § 1, 10-26-2016)

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

(Ord. No. 264, § 1, 10-26-2016)

(a) Every application for a development project that is subject to the development runoff requirements shall be accompanied by a stormwater control plan.

(b) As a condition precedent to the issuance of a certificate of occupancy for a development project subject to this section, applicants shall implement an approved stormwater control plan and receive approval of a stormwater control operation and maintenance plan from the town.

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

(d) All stormwater management facilities shall be maintained according to the guidebook and the approved stormwater control operation and maintenance plan. The person(s) or organization(s) responsible for maintenance shall be designated in the stormwater control operation and maintenance plan. Unless a different time period is provided for in the plan, those responsible for maintenance shall inspect the stormwater management facility at least annually. The stormwater operation and maintenance plan shall also describe how the maintenance costs will be funded. Upon the failure of a responsible person to maintain a stormwater management facility in accordance with this chapter or the plan, the town may perform the maintenance and recover its costs from the responsible person as provided in Sections 13.17 and 13.18.

(e) Prior to issuance of a certificate of occupancy or as otherwise specified by the director to ensure compliance with this chapter, property owners shall record easements and covenants, in a form approved by the town, that provide the town, the Contra Costa Mosquito and Vector Control District, and the Regional Water Quality Control Board access to stormwater management facilities and ensure that the responsible person accepts responsibility for the operation and maintenance, and inspection and reporting of the stormwater management facilities.

(Ord. No. 264, § 1, 10-26-2016)

(a) The release of non-stormwater discharges to the stormwater system is prohibited.

(b) The discharge of stormwater from premises or an activity that causes or contributes to a violation of receiving water limitations in the town's NPDES permit is prohibited.

(c) The following discharges are exempt from the prohibition set forth in subsection (a) above:

(1) Any discharge in compliance with a NPDES permit issued to the discharger.

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

(d) The following discharges are exempt from the prohibition set forth in subsection (a) above if and only if the discharges are in accordance with conditions including but not limited to specific conditions for each type of discharge set forth in Section C.15 of the town's NPDES permit: pumped groundwater from sources other than drinking water aquifers, including but not limited to non-drinking water aquifers, foundation drains, and water from crawl space pumps and footing drains; air conditioning condensate; planned discharges from routine operation and maintenance activities in the potable water distribution system; unplanned discharges from breaks, leaks, overflows, fire hydrant shearing, or emergency flushing of the potable water distribution system; emergency discharges of the potable water distribution system as a result of firefighting, unauthorized hydrant openings, or natural or man-made disasters; individual residential car washing; swimming pool, hot tub, spa, and fountain water discharges, and discharges from irrigation water, landscape irrigation, and lawn or garden watering.

(Ord. No. 264, § 1, 10-26-2016)

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

(Ord. No. 264, § 1, 10-26-2016)

(a) It is unlawful to establish, use, maintain or continue unauthorized drainage connections to the stormwater system, and to commence or continue any unauthorized discharges to the stormwater system.

(b) No discharge shall create a nuisance, adversely affect beneficial uses of waters of the state, or cause any of the following conditions:

(1) Floating, suspended or deposited macroscopic matter or foam;

(2) Bottom deposits or aquatic growth;

(3) Alterations of temperature, sediment load, nutrient load, or dissolved oxygen, which cause significant adverse impacts to native aquatic biota;

(4) Visible, floating, suspended or deposited oil or products of petroleum origin; or,

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

(Ord. No. 264, § 1, 10-26-2016)

(a) Generally. Any person owning or operating premises that may contribute pollutants to the stormwater system shall undertake best management practices to reduce the potential for pollutants entering the stormwater system to the maximum extent practicable. Further, where best management practices or other requirements have been adopted by any federal, state, regional, town or county agency, for any activity, or operation of premises, which may cause or contribute to non-stormwater discharge, every person undertaking such activity, operation or owning and operating such premises shall comply with such BMPs or requirements. To the extent such best management practices or other requirements have been amended or challenged and declared by a court of law to be invalid or unenforceable, the town shall enforce the current adopted and enforceable practices and requirements, unless otherwise required by federal or state law. The town may require the owner of any premises regulated by this chapter to enter into a long-term covenant or agreement, in a form approved by town, to ensure the operation and maintenance of any facilities required hereunder, including without limitation a full trash capture system, in compliance with the provisions of this chapter.

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

(c) Sidewalks. The occupant or tenant, or in the absence of occupant or tenant, the owner or proprietor of any real property in front of which there is a paved sidewalk shall maintain said sidewalk free of dirt or litter to the maximum extent practicable. Sweepings from the sidewalk shall not be swept or otherwise made or allowed to go into the gutter or roadway, but shall be disposed of in receptacles maintained as required for the disposal of solid waste. This section constitutes an alternative procedure and shall not limit or restrict the town from the civil, criminal or administrative enforcement of this or other town ordinances in any other matter provided by law.

(d) Maintenance of Premises and Landscaped Areas. Persons owning, operating, or maintaining premises, including landscaped areas, shall implement best management practices to minimize the release of pesticides, fertilizers, herbicides, and other related materials used to maintain landscaping and related facilities.

(e) Parking Lots, Paved Areas and Related Stormwater Systems. Persons owning, operating or maintaining a paved parking lot, the paved areas of a gasoline station, a paved private street or road, and related stormwater systems shall clean those premises as frequently and thoroughly as practicable in a manner that does not result in the discharge of pollutants to the stormwater system. The director may require installation and maintenance of devices or facilities, including without limitation a full trash capture system, within a time frame specified by the director to prevent the discharge of trash or other pollutants from private parking lots, streets, roads, and drainage facilities into the stormwater system. Such requirements may be amended by the director in the event that the requirements for trash load reduction imposed by the town's NPDES permit have been amended or challenged and declared by a court of law to be invalid or unenforceable. Failure or refusal to timely comply with such requirement is prohibited and shall constitute a violation of this Chapter.

(f) Construction Activities. All construction projects shall incorporate site-specific BMPs, which can be a combination of BMPs from the California BMP Handbook, Construction, January 2003, the Caltrans Stormwater Quality Handbooks, Construction Site Best Management Practices Manual, March 2003, the San Francisco Bay Regional Water Quality Control Board Erosion and Sediment Control Field Manual, 2002, the town's grading and erosion control ordinance and other generally accepted engineering practices for erosion control as required by the director. The director may establish controls on the rate, volume, and duration of stormwater runoff from construction projects as may be appropriate to minimize the discharge and transport of pollutants. All construction sites must implement and maintain at least the following minimum BMPs: erosion control at the site, run-on and run-off controls to and from the site, control of sediments and fines on the site, active treatment systems (as necessary), good site management, and non-stormwater management.

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

(h) Development Runoff Requirements. As set forth in Section 13.04.050 above, for each new development project subject to the development runoff requirements, every applicant shall submit a stormwater control plan and implement conditions of approval that reduce stormwater pollutant discharges through the construction, operation and maintenance of treatment measures and other appropriate source control and site design measures. Similarly, increases in runoff volume, flows, and durations shall be managed in accordance with the development runoff requirements.

(i) Stormwater Pollution Prevention Plan. The director may require any business or utility in the town that is engaged in activities that may result in non-stormwater discharges or runoff pollutants to develop and implement a stormwater control plan, which must include an employee training program. Business activities which may require a stormwater pollution prevention plan include maintenance, storage, manufacturing, assembly, equipment operations, vehicle loading, fueling, vehicle maintenance, food handling or processing, or cleanup procedures, carried out partially or wholly out of doors.

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

(Ord. No. 264, § 1, 10-26-2016)

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

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

(c) Notification of Spills. All persons in charge of a premises or responsible for emergency response for a premises shall train the premises' personnel and maintain notification procedures to ensure that immediate notification is provided to the town of any suspected, confirmed or unconfirmed release of pollutants creating a risk of non-stormwater discharge into the stormwater system. As soon as any person in charge of a premises or responsible for emergency response for a premises has knowledge of any suspected, confirmed or unconfirmed release of non-stormwater discharge entering the stormwater system, such person shall take all necessary steps to ensure the detection and containment and cleanup of such release and shall notify the town of the occurrence by telephoning the director. This notification requirement is in addition to and not in lieu of other required notifications.

(d) Requirement to Test or Monitor. Any officer may require that any person engaged in any activity or owning or operating any premises that may cause or contribute to non-stormwater discharges, undertake such monitoring activities or analysis and furnish such reports as the officer may specify. The burden, including costs of these activities, analysis and reports shall bear a reasonable relationship to the need for the monitoring, analysis and reports and the benefits to be obtained. The recipient of such request shall undertake and provide the monitoring, analysis and reports required. In order to ensure future testing, monitoring and analysis, the town may require the owner of such premises to enter into an agreement setting forth its obligations pursuant to this chapter.

(Ord. No. 264, § 1, 10-26-2016)

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

(b) Any person required to perform monitoring, analysis, reporting or corrective activity pursuant to this chapter by any officer shall be informed of such decision, in writing, by a notice of violation. Any person aggrieved by the decision of the officer, may file a written appeal of the notice of violation to the director within ten (10) days following the date of the notice of violation. Upon receipt of such request, the director shall request a report and recommendation from the officer and shall set the matter for hearing at the earliest practical date. At said hearing, all evidence and testimony deemed relevant and admissible by the director shall be considered, and the director may reject, affirm, or modify the officer's decision. Formal rules of evidence shall not apply. The decisions of the director shall be final. Failure to request a hearing or appear at the hearing shall constitute a waiver and failure to exhaust administrative remedies.

(c) In addition to the penalties and procedures provided herein, any condition caused or permitted to exist in violation of any of the provisions of this chapter is a threat to the public health, safety and welfare. Such condition is hereby declared and deemed to be a nuisance, which may be abated as provided in Chapter 1 of Title 24 (commencing with Section 1.24.010) of this Code including the assessment of the costs of abatement which may be collected at the same time and in the same manner as ordinary municipal taxes as provided by Government Code Section 38773.5, and by civil action to abate, enjoin or otherwise compel the cessation of such nuisance by the town attorney.

(Ord. No. 264, § 1, 10-26-2016)

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

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

(Ord. No. 264, § 1, 10-26-2016)

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

(Ord. No. 264, § 1, 10-26-2016)

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

(Ord. No. 264, § 1, 10-26-2016)

• Acts potentially resulting in violation of the Federal Clean Water Act or Porter-Cologne Act.

Any person who violates any provision of this chapter, or the provisions of any permit issued pursuant to this chapter, or who releases a non-stormwater discharge, or who violates any cease and desist order, prohibition or effluent limitation, may also be in violation of the Federal Clean Water Act or the Porter-Cologne Act and may be subject to the enforcement provisions of those acts, including civil and criminal penalties. Any enforcement actions authorized pursuant to this chapter may also include notice to the violator of such potential liability pursuant to federal or state law.

(Ord. No. 264, § 1, 10-26-2016)

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

(1) A temporary restraining order, preliminary injunction and permanent injunction; or

(2) An action for an unlawful business practice pursuant to Business and Professions Code Section 17206.

(b) In addition any person violating this chapter shall be liable for:

(1) Reimbursement for the costs of any investigation, inspection or monitoring which led to the discovery of the violation;

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

(3) Compensatory damages for the loss of, or destruction to, water quality, wildlife, fish or aquatic life. Costs and damages under this subsection shall be paid to the town and shall be used exclusively for costs associated with monitoring or establishing its stormwater system in compliance with this chapter or implementing or enforcing the provisions of this chapter;

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

(5) The reasonable costs of preparing and bringing administrative action under this chapter.

(Ord. No. 264, § 1, 10-26-2016)

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

(Ord. No. 264, § 1, 10-26-2016)

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

(Ord. No. 264, § 1, 10-26-2016)