Chapter 13.16 — CREEK PROTECTION, STORM WATER MANAGEMENT AND DISCHARGE CONTROL

This chapter shall be known as the "city of Oakland creek protection, storm water management and discharge control ordinance" and may be so cited.

(Ord. 12024 § 1 (part), 1997)

The purpose of this chapter is to ensure the future health, safety, and general welfare of city citizens by:

A.

Eliminating non-storm-water discharges to the municipal separate storm sewer;

B.

Controlling the discharge to municipal separate storm sewers from spills, dumping or disposal of materials other than storm water;

C.

Reducing pollutants in storm water discharges to the maximum extent practicable;

D.

Safeguarding and preserving creeks and riparian corridors in a natural state;

E.

Preserving and enhancing creekside vegetation and wildlife;

F.

Preventing activities that would contribute significantly to flooding, erosion or sedimentation, or that would destroy riparian areas or would inhibit their restoration;

G.

Enhancing recreational and beneficial uses of creeks;

H.

Controlling erosion and sedimentation;

I.

Protecting drainage facilities; and

J.

Protecting the public health and safety, and public and private property.

The intent of this chapter is to protect and enhance the water quality of our watercourses, water bodies, and wetlands in a manner pursuant to and consistent with the federal Clean Water Act.

(Ord. 12024 § 1 (part), 1997)

A.

Any terms defined in the federal Clean Water Act and acts amendatory thereof or supplementary thereto, and/or defined in the regulations for the storm water discharge permitting program issued by the U.S. Environmental Protection Agency on November 16, 1990 (as may from time to time be amended) as used in this chapter shall have the same meaning as in that statute or regulations. Specifically, the definition of the following terms included in that statute or regulations are incorporated by reference, as now applicable or as may hereafter be amended: illicit discharge, waters of the United States and storm water. These terms presently are defined as follows:

"Illicit discharge" means any discharge to the city storm sewer system or to any watercourse that is not composed entirely of storm water except discharges pursuant to a NPDES permit and discharges resulting from firefighting activities.

"Storm water" means storm water runoff, snow melt runoff, and surface runoff and drainage.

"Waters of the United States" means:

All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of tide;

All interstate waters including interstate wetlands;

All other waters, such as intra-state lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which would or could affect interstate or foreign commerce including any such waters:

a.

Which are or could be used by interstate or foreign travelers for recreational or other purposes, or

b.

From which fish or shellfish are or could be taken and sold in interstate or foreign commerce, or

c.

Which are used or could be used for industrial purposes by industries in interstate commerce;

All impoundments of waters otherwise defined as waters of the United States under this definition;

Tributaries of waters identified in subsections 1—4 of this definition;

The territorial sea; and

Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in subsections 1— 6 of this definition.

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Act (other than cooling ponds as defined in 40 CFR 123.11(m) which also meet the criteria of this definition) are not waters of the United States.

B.

When used in this chapter, the following words shall have the meanings ascribed to them in this section:

Authorized Enforcement Official or Enforcement Official. The following city employees are designated authorized enforcement official or enforcement official: Principal Civil Engineer, Supervising Civil Engineer, Civil Engineer, Assistant Engineer I, Assistant Engineer II, Supervisor, Senior Construction Inspector, Construction Inspector, Senior Engineering Technician, Supervising Planning Investigator, Planning Investigator, Design Review Planning Investigator, Supervising Building Inspector, Senior Building Inspector, and Building Inspector, Intermediate Engineering Technician, Creek Protection Specialist, Hazardous Materials Supervisor, Senior Hazardous Materials Program Inspector, Hazardous Materials Inspector I, Hazardous Materials Inspector II, and Fire Prevention Inspector.

In addition to the employees mentioned above, the City Manager shall have the power to designate, by written order, that particular officers or employees shall also be authorized to enforce particular provisions of this chapter. Officers or employees so designated shall have the authority to arrest persons who violate any of said provisions.

"Bank" means any embankment, dike, levee, wall or similar feature of natural or man-made origin which adjoins or parallels any watercourse and which has as a function the confinement of the water of said watercourse.

"Best management practices (BMPs)" means schedules of activities, prohibitions of practices, general good housekeeping practices, pollution prevention practices, maintenance of watercourse procedures, and other management practices to prevent or reduce the discharge of pollutants directly or indirectly to waters

of the United States. BMPs also include storm water treatment requirements, operating procedures, and practices to control site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

"Chief of Building Services" means the Chief of Building Services, Community and Economic Development Agency, City of Oakland or his or her designee.

"City" means the city of Oakland, a municipal corporation, including any subsequently annexed geographic portion thereof.

"City storm sewer system" means and includes but is not limited to those structures within the city right-of- way or easement by which storm water may be conveyed to waters of the United States, including any roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels or storm drains, which does not convey water to a publicly owned treatment works (POTW) as defined at 40 CFR Section 122.2.

"County" means Alameda County.

"Creek" means a watercourse that is a naturally occurring swale or depression, or engineered channel which carries fresh or estuarine water either seasonally or year round within the city boundaries, as identified on the "Watershed Map of Oakland and Berkeley Area" and the "Creek and Watershed Map of Hayward and San Leandro," published by the Oakland Museum of California and as modified by the city and/or any area identified through field investigation by the Environmental Services Manager as meeting the above criteria.

stuarine water either seasonally or year round within the city boundaries, as identified on the "Watershed Map of Oakland and Berkeley Area" and the "Creek and Watershed Map of Hayward and San Leandro," published by the Oakland Museum of California and as modified by the city and/or any area identified through field investigation by the Environmental Services Manager as meeting the above criteria.

"Creekside property" means those properties located in Oakland, as identified by the Environmental Services Manager, as having a creek or riparian corridor crossing the property and/or are contiguous to a creek or riparian corridor.

"Creek protection permit" means a permit that must be obtained from the city, Community and Economic Development Agency (CEDA), prior to development or work on a creekside property.

Creek Protection Plan. A "creek protection plan" is required for a creek protection permit when the work falls within Categories III and IV, as defined in Section 13.16.130 of this chapter. The creek protection plan outlines measures, including BMPs, to be taken to protect the creek during development or work.

"Development or work" means any act of filling, depositing, clearing, grubbing, mining, drilling, paving or earthwork, or removing any natural material, or constructing, reconstructing, repairing or enlarging any structure, or any activity that requires a building, plumbing, electrical, mechanical or demolition permit.

"Director" means the Director, Public Works Agency or his or her designee.

"Earthwork" means movement, stockpiling, importing, excavation, fill or removal of three cubic yards of material (dirt, earth, cement, asphalt, rocks, gravel, sand) or more.

"Environmental Services Manager" means the Manager of Environmental Services Division, Public Works Agency, or his or her designee.

"Estuarine water" means water at, or upstream from the mouth of a creek which consists of a mixture of ocean water from the San Francisco Bay and fresh water that has drained from the surrounding upland.

"Facility" means residential, commercial or industrial processes within a property boundary discharging storm water associated with residential, commercial, industrial or construction activities.

"Floodway" means a channel of a watercourse and adjacent land areas that must be reserved in order to convey flood flows as determined by the Environmental Services Division. Where shown on a Flood Boundary and Flood Map of the National Flood Insurance Program, "floodway" means the area so designated on said map.

"Flowline" means the lowest point of the watercourse.

"Hearing Officer" means the Director, Public Works Agency or his or her designee.

Hydrology Report. A "hydrology report" is prepared by a licensed engineer, and includes information as outlined in Section 13.16.170. The purpose of the report is to provide information about the development's or work's impact to the creek.

"Illicit connection" means a pipe or any other type of connection to the city storm sewer system or to a watercourse conveying a discharge that is not composed entirely of storm water, except discharges in compliance with a NPDES permit issued to the discharger and discharges in accordance with Section 13.16.070B of this chapter.

"Increase in flow" means any increment of increase in the total volume or rate of storm water runoff, as determined by the Environmental Services Manager or Chief of Building Services, resulting from any activity or development occurring after the effective date of the ordinance codified in this chapter.

"Maintenance" means the desilting, pruning or removal of overgrown vegetation, the removal of trash and debris, the removal of algae, water treatment, mosquito abatement activities, repair, planting of riparian vegetation or any other work required to maintain or improve conveyance or storage capacities of watercourses or creeks (as appropriate) or purity and quality of water, or to safeguard public health and safety.

"Non-storm-water discharge" means any discharge that is not entirely composed of storm water and/or containing pollutants.

"Person" means any individual, firm, organization, corporation, partnership, or other public or private entity.

"Pollutant" means dredged soil, solid waste, incinerator residue, sewage, garbage, litter, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, petroleum products, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharge into water. A pollutant shall also include any increment of increase in the total volume or rate of storm water runoff resulting from any activity or development occurring after the effective date of the ordinance codified in this chapter. (This definition includes, as now applicable or as may hereafter be amended, the meaning of pollutant as defined in the federal Clean Water Act and acts supplementary thereto, and/or defined in the regulations for the storm water discharge permitting program issued by the U.S. Environmental Protection Agency on November 16, 1990.)

"Premises" means any building, lot parcel, real estate, or land or portion of land, whether improved or unimproved, including adjacent sidewalks and parking strips.

"Riparian corridor" means whichever of the following covers the larger area:

(1)

A watercourse together with its bank and its setback; or

(2)

A watercourse together with an area of adjacent riparian vegetation which may be identified through field investigation.

"Riparian vegetation" means plant species typically native to riparian corridors or salt marshes.

"Setback" means an area adjacent to a watercourse that is the larger of the following:

(1)

A portion of any floodway that is adjacent to a watercourse; or

(2)

The area between the top of bank and a point twenty (20) feet further from the watercourse than the top of bank.

"Structure" means any works or constructions of any kind, including those of earth or rock, permanent or temporary, and including but not limited to fences, patios, swimming pools, decks, poles, buildings, pavings, inlets, levees, tide gates, spillways, drop structures, retaining walls, erosion control devices and similar facilities.

"Toe of bank" means the point at which the bank slope intersects the bottom of the watercourse nearest the side of the proposed development.

"Top of bank" means the point at which a line projected from the toe of the bank toward the top of the bank at a slope of two (horizontal) to one (vertical), or twenty-six and one-half (26 ½) degrees from horizontal, intersects surrounding level ground, unless such a line does not intersect surrounding level ground at all, the top of bank shall be determined at the discretion of the Chief of Building Services or his or her designee as the point at which the slope of the bank begins most closely to approximate the horizontal.

"Watercourse" means any conduit or natural or man-made channel through which water flows continuously or intermittently in a definite direction and course or alternating directions and course under the influence of tides or any appurtenant structure thereof which is used for the holding, delay or storage of water, except enclosed public water delivery and storm sewer system conduits.

(Ord. 12024 § 1 (part), 1997)

This chapter shall be administered and interpreted for the city by the Environmental Services Manager except where the Chief of Building Services for the Community and Economic Development Agency (CEDA) has the responsibility to implement certain provisions of this chapter, in which case the Chief of Building Services shall administer and interpret those provisions. Where the storm drain systems and/or watercourses are owned or have been accepted for maintenance of watercourse by the Alameda County Flood Control and Water Conservation District (ACFCWCD) or other public agency legally responsible for certain watercourses, then the responsibility for enforcing the provisions of this chapter may be assigned to such agency (through contract or written agreement executed by the city and such agency) with respect to those watercourses which they own or for which they have accepted maintenance of watercourse. In addition, the city may assign responsibility for enforcing certain provisions to another public agency (through contract or written agreement executed by the city and such agency).

(Ord. 12024 § 1 (part), 1997)

This chapter shall be construed as consistent with the requirements of the federal Clean Water Act and acts amendatory thereof or supplementary thereto, applicable implementing regulations, and NPDES Permit No. CA0029831 and any amendment, revision or reissuance thereof. If there is any inconsistency between this chapter and any other ordinance or regulation of the city, the more stringent provisions shall apply.

(Ord. 12024 § 1 (part), 1997)

If any portion of this chapter or the application thereof to any person or circumstances is declared invalid or unenforceable by a court of competent jurisdiction, the remaining portions of this chapter and the application of such portions to other persons or circumstances are to be considered valid.

(Ord. 12024 § 1 (part), 1997)