Sanger Municipal Code § 82-210 Minimum performance requirements

Footnotes:

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Editor's note— Ord. No. 2022-07, § 2, adopted July 21, 2022, repealed the former art. V, §§ 82-201—82-214, and enacted a new art. V as set out herein. The former art. V pertained to similar subject matter and derived from Ord. No. 1166, § 1, adopted Feb. 4, 2016.

The purpose of this article 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 USC 1251 et seq.), the national pollution discharge elimination system regulations (40 CFR 122 et seq.) and the city's stormwater discharge permit for small municipal storm sewer systems (MS4). This article shall be known as and may be referred to as the "City of Sanger Urban Stormwater Quality Management Ordinance" and referred to in this article as "ordinance."

(Ord. No. 2022-07, § 2, 7-21-22)

For the purposes of this article, unless otherwise apparent from the context, the following words and phrases as used herein shall be defined as follows.

Best management practices (BMPs): Schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants to stormwater. BMPs also include treatment requirements, operating procedures, and practices to control site runoff, spillage or leaks, sludge or waste disposal, drainage from outdoor areas, and activities required to control the discharge from construction sites disturbing one acre of land or more (in one or more phases of construction).

California state water resources control board (SWRCB): The state agency charged with administration of the national pollution discharge elimination system (NPDES).

Clean Water Act: The federal water pollution control act, as amended, 33 USC 1251 et seq.

Director: The public works director or his/her designee.

Discharge: 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.

Environmental protection agency (EPA): The federal agency charged with enforcement of environmental laws and regulations.

National pollution discharge elimination system (NPDES): Stormwater discharge permit for small municipal storm sewer systems (MS4) permit issued by the state water resources control board which authorizes the discharge of stormwater pursuant to the Clean Water Act (33 USC 1342).

Notice of intent (NOI): A form submitted to the regional water quality control board notifying the agency of a person's intent to be covered under a separate regional water quality control board construction 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.

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

Pollutant: Shall have the same meaning as defined in 40 CFR 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, biological materials, radioactive materials, sand, dirt, animal waste, acids, and bases.

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

Public storm drain system: All or any part of the publicly owned and maintained roads, streets, catch basins, curbs, gutters, ditches, manmade channels, storm drains and dry wells located within public easements, rights of way, parks, common areas, retention areas, or other publicly owned or maintained real property designed or used for collecting, holding, or conveying stormwater.

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.

Stormwater: Stormwater runoff, surface runoff and drainage.

(Ord. No. 2022-07, § 2, 7-21-22)

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

(Ord. No. 2022-07, § 2, 7-21-22)

This article 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 state water resources control board'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 limits or conveyed by the public storm drain system.

(Ord. No. 2022-07, § 2, 7-21-22)

The standards set forth herein and promulgated pursuant to this article are minimum standards; therefore, this article 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 article 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 article or any administrative decision lawfully made hereunder.

(Ord. No. 2022-07, § 2, 7-21-22)

(a) Discharge of substances: Unless expressly authorized or exempted by this article, 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.

(b) Disposing of materials: Unless expressly authorized or exempted by this article, 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.

(c) Exemptions: The following discharges are exempt from the prohibitions set forth in subsections (a) and (b) of this section:

(1) Discharges authorized by a separate NPDES or RWQCB permit.

(2) 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. Landscaping irrigation;

c. Diverted stream flows;

d. Rising ground waters;

e. Uncontaminated ground water infiltration as defined in 40 CFR 35.2005(b)(20);

f. Uncontaminated pumped ground water;

g. Discharges from potable water sources;

h. Foundation drains;

i. Air conditioning condensation;

j. Irrigation water;

k. Springs;

l. Water from crawl space pumps;

m. Footing drains;

n. Lawn watering;

o. Individual residential car washing;

p. Flows from riparian habitats and wetlands;

q. Dechlorinated swimming pool discharges;

r. Discharges from emergency firefighting activity; or

s. Any other activity that the public works director identifies is not a significant contributor of pollutants during the city's NPDES stormwater discharge permit for small MS4s' permit term.

(3) No person shall discharge to public storm drain system any exempted discharge under this subsection if the public works director 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 ground water.

(4) 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 discharge shall be the responsibility of the person causing or responsible for the discharge.

(5) No person shall establish, use, maintain, or continue any 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.

(Ord. No. 2022-07, § 2, 7-21-22)

(a) All persons owning or operating premises or engaged in activities who are required by federal or state law to submit to EPA and/or RWQCB a notice of intent (NOI) to comply with an NPDES or RWQCB stormwater discharge permit shall provide a copy of such notice to the public works director upon request. Facilities required to apply for a stormwater discharge permit are identified in 40 CFR 122.26(b)(14).

(b) All persons engaged in activities which will or may reasonably be expected to result in pollutants entering the public storm drain system shall undertake best management practices (BMPs) to minimize such pollutants, and shall provide protection from accidental discharge of pollutants to the public storm drain system and comply with cleanup and notification requirements of this article. Such measures shall include the requirements imposed by federal, state, county, or local authorities. BMPs are site specific and are described in the documents "Storm Water Best Management Practice Handbook: Construction"; "Storm Water Best Management Practice Handbook: New Development And Redevelopment"; "Storm Water Best Management Practice Handbook: Industrial And Commercial"; "Storm Water Best Management Practice Handbook: Municipal"; or other guidance documents available from EPA and/or RWQCB.

(c) If best management practice is required by the public works 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 to reconsider the application of the BMPs to the premises or activity. The written petition must be received by the city clerk within ten working days of the notice issued by the public works 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 shall act on the petition within 30 calendar days of the filing of the petition.

(Ord. No. 2022-07, § 2, 7-21-22)

(a) All persons engaged in construction activities who are required by federal or state law to submit to EPA and/or RWQCB a notice of intent to comply with an NPDES stormwater permit, shall provide the city with copies of the NOI and the NPDES stormwater permit issued by the RWQCB. Construction activities that will disturb one acre or more of land area or smaller land areas, if they are part of a larger common plan of development or sale, are required to apply for a stormwater discharge permit (40 CFR 122.26(b)(15)). Construction projects that disturb less than one acre of land are required to comply with sections 82-209 and 82-210 of this article.

(b) Any person performing construction shall not cause or contribute to a violation of the RWQCB stormwater discharge permit issued by the RWQCB 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 best management practices 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 article. 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 described in the documents "Storm Water Best Management Practice Handbook: Construction"; "Storm Water Best Management Practice Handbook: New Development and Redevelopment"; "Storm Water Best Management Practice Handbook: Industrial and Commercial"; "Storm Water Best Management Practice Handbook: Municipal"; or other guidance documents available from EPA and/or RWQCB.

(c) If best management practice is required by the public works 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 to reconsider the application of the BMPs to the premises or activity. The written petition must be received by the city clerk within ten working days at the issuance of the notice by the public works 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 shall act on the petition within 30 calendar days of the filing of the petition.

(Ord. No. 2022-07, § 2, 7-21-22)

Regulated projects include all new development or redevelopment projects that create and/or replace 2,500 square feet or more of impervious surface (collectively over the entire project site) and lie within the stormwater service area that enter the public storm drain system.

(1) Additional regulated projects include, but are not limited to, the following road projects/practices:

a. Removing and replacing a paved surface resulting in alteration of the original line and grade, hydraulic capacity or overall footprint of the road.

b. Extending the pavement edge or paving graveled shoulders.

c. Resurfacing by upgrading from dirt to asphalt, or concrete; upgrading from gravel to asphalt, or concrete; or upgrading from a bituminous surface treatment ("chip seal") to asphalt or concrete.

(2) Regulated projects do not include:

a. The following road and parking lot maintenance:

1. Road surface repair including slurry sealing, fog sealing, and pothole and square cut patching.

2. Overlaying existing asphalt or concrete pavement with asphalt or concrete without expanding the area of coverage.

3. Shoulder grading.

4. Cleaning, repairing, maintaining, reshaping, or regarding drainage systems.

5. Crack sealing.

6. Resurfacing with in-kind material without expanding the road or parking lot.

7. Practices to maintain original line and grade, hydraulic capacity, and overall footprint of the road or parking lot.

8. Repair or reconstruction of the road because of slope failures, natural disasters, acts of God or other manmade disaster.

b. Sidewalk and bicycle path or lane projects, where no other impervious surfaces are created or replaced.

c. Trails and pathways, where no other impervious surfaces are replaced or created.

d. Underground utility projects that replace the ground surface with in-kind material or materials with similar runoff characteristics.

e. Curb and gutter improvement or replacement projects that are not part of any additional creation or replacement of impervious surface area (e.g., sidewalks, roadway).

f. Second story additions that do not increase the building footprint.

g. Raised (not built directly on the ground) decks, stairs, or walkways designed with spaces to allow for water drainage.

h. Photovoltaic systems installed on/over existing roof or other impervious surfaces and panels located over pervious surfaces with well-maintained grass or vegetated ground cover or panel arrays with a buffer strip at the most down gradient row of panels.

i. Temporary structures (in place for less than six months).

j. Electrical and utility vaults, sewer and water lift stations, backflows and other utility devices.

k. Aboveground fuel storage tanks and fuel farms with spill containment system.

(Ord. No. 2022-07, § 2, 7-21-22)

(a) Performance Requirement No. 1: Site design and runoff reduction:

(1) Projects that create and/or replace 2,500 square feet or more of impervious surface (collectively over the entire project site), including detached single-family home projects and are located within the city stormwater service area that enter the public storm drain system, must comply with the following runoff reduction practices:

a. Limit disturbance of creeks and natural drainage features.

b. Minimize compaction of highly permeable soils.

c. Limit clearing and grading of native vegetation at the site to the minimum area needed to build the project.

d. Minimize disturbance to impervious surfaces.

e. Minimize stormwater runoff by implementing one or more of the following site design measures:

1. Direct roof runoff into cisterns or rain barrels for reuse.

2. Direct roof runoff onto vegetated areas safely away from building foundations and footings, consistent with California building code.

3. Direct runoff from sidewalks, walkways and/or patios onto vegetated areas safely away from building foundations and footings, consistent with California building code.

4. Direct runoff from driveways and/or uncovered parking lots onto vegetated areas safely away from building foundations and footings, consistent with California building code.

(2) The city will confirm that projects comply with site design and runoff reduction performance requirements by means of appropriate documentation (e.g., checklists) accompanying applications for project approval.

(b) Performance Requirement No. 2: Water quality treatment:

(1) Sampling and analysis for sediment/silt or turbidity are required when the runoff from a construction site discharges directly into a U.S. body of water (not through the city storm drain system). Sampling is not required if all stormwater runoff is contained on site and allowed to infiltrate or evaporate.

(2) Stormwater sampling shall be performed per the "Cal Trans Storm Water Quality Sampling Guidance Manual".

(c) Performance Requirement No. 3: Runoff retention: All projects, except detached single-family homes, that create and/or replace more than 15,000 square feet of impervious surface (collectively over the entire project site), and detached single-family homes more than 15,000 square feet of net impervious area, and are located in the city stormwater service area that drains to any U.S. body of water are required to meet the runoff retention performance standards using low impact development principles and practices, subject to approval by the city.

(d) Performance Requirements No. 4: Peak management: The city will require all projects that create and/or replace more than 22,500 square feet of impervious surface (collectively over the entire project site), and are located within the city stormwater service area that drains to any U.S. body of water, to manage peak stormwater runoff and to meet water quality treatment and runoff retention performance standards as set forth in this section.

(e) Performance Requirement No. 5: Special circumstances: Projects with a scope of work that have certain site and/or receiving water conditions may be defined as a special circumstances project. The special circumstances designation exempts a project from runoff retention and/or peak management performance standards where those performance standards would be ineffective to maintain or restore beneficial uses of receiving waters.

(Ord. No. 2022-07, § 2, 7-21-22)

Alternative compliance refers to water quality treatment, runoff retention and peak management performance requirements that are achieved off site through mechanisms such as developer fee in lieu arrangements and/or use of regional facilities. Alternative compliance may be allowed under circumstances of technical infeasibility, or equivalent circumstances and must be approved by the city.

(Ord. No. 2022-07, § 2, 7-21-22)

Property owners or operators shall ensure long term operation and maintenance of postconstruction stormwater runoff control mechanisms, such as retention basins, dry wells and other measures described in 40 CFR 122.34(b)(5)(iii).

(Ord. No. 2022-07, § 2, 7-21-22)

(a) 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 public works 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. No. 2022-07, § 2, 7-21-22)

(a) Authority to inspect: Upon presentation of credentials and at all reasonable or necessary hours, all authorized employees of the city shall have access to all premises and to all records pertaining to those premises for purposes of ensuring compliance with this article. Inspection, interviewing, copying, sampling, photographing, and other activities conducted on the premises shall be limited to those which are reasonably needed by the city in determining compliance with the requirements of this article. All persons shall allow such activities under safe and nonhazardous conditions with a minimum of delay.

(b) Monitoring activities: The public works director or the city engineer may order any person engaged in any activity or owning or operating on any premises which may cause or contribute to discharges of pollutants to the public storm drain system in violation of this article or any applicable NPDES or RWQCB stormwater permit condition to undertake such monitoring activities and analyses and furnish such reports as the public works director or city engineer reasonably may specify. The costs of such activities, analyses, and reports shall be borne by the recipient of the order.

(c) Access refusal: If an authorized employee of the city has been refused access to any premises, and is able to demonstrate probable cause to believe that there may be a violation of this article, or that there is a need to inspect, interview, copy, photograph or sample as part of an inspection and sampling procedure of the city designed to determine compliance with the requirements of this article or any related laws or regulations designed to protect the environment and the public health, safety and welfare of the community, then the public works director or city engineer may seek issuance of a search or inspection warrant from a judge or judicial officer of the Fresno County Superior Court.

(Ord. No. 2022-07, § 2, 7-21-22)

(a) Enforcement: Charges levied pursuant to this article may be collected by the finance department or public works department. The public works director or city engineer shall make and enforce economic and efficient management and protection of the city's storm drain system.

(b) Owner of record: The owner of record of the property upon which a violation of this article occurs shall be presumed to be a person having lawful control over the activity or premises unless it is demonstrated that another person has knowingly and in good faith accepted responsibility for the activity at issue. If more than one person is identified as the owner, such persons shall be presumed to be jointly and severally in lawful possession and control of the activity or premises.

(c) Notice of violation: The public works director or city engineer may issue a written notice of violation to any person who has violated or is in violation of this article. Failure to comply with any act required in the notice of violation shall be a separate violation for each day beyond the 30 days following the notice of violation. Nothing in this section shall limit the authority of the public works director or city engineer to take any action, including emergency actions or any other enforcement action, without first issuing a notice of violation. In appropriate situations, the public works director or city engineer may notify the person orally either in person or by telephone prior to, and, in some cases, in lieu of, written notification.

(d) Consent orders: The public works director or city engineer may enter into consent orders, assurances of voluntary compliance, negotiated settlement agreements or other similar documents establishing an agreement with any person responsible for noncompliance. Such documents shall include specific action to be taken by the person(s) to correct the noncompliance within a time period specified by the document, including an identification and description of the best management practices and measures to utilize in implementing the order. Such documents shall be approved by the city attorney, and shall have the same force and effect as any other orders issued under this article and shall be judicially enforceable.

(e) Cease and desist orders: When the public works director or city engineer finds that a person has violated, or continues to violate any provision of this article or any related laws or regulations, or that the person's past violations are likely to recur, the public works director or city engineer may issue an order to the person directing them to cease and desist all such violations and direct the person to immediately comply with all requirements; and take such appropriate remedial or preventive action as may be needed to properly address a continuing or threatened violation. Issuance of a cease and desist order shall not be a bar against, or a prerequisite for, taking any other action against the person. A person's failure to comply with an order of the public works director or city engineer issued pursuant to this article shall constitute a violation of this article.

(f) Civil penalties: In addition to any other enforcement authority contained in this article, the public works director or city engineer may issue a civil citation to any person who has violated, or continues to violate, any provision of this article or any related laws or regulations. A person who violates any requirement of this article or any applicable NPDES or RWQCB stormwater discharge permit condition shall be civilly liable to the city for a sum not to exceed $10,000.00 per day per violation.

(g) Criminal penalties: A person who willfully or negligently violates any provision of this article, 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 $15,000.00 per day per violation and/or imprisonment for a period not to exceed six months.

(h) Criminal prosecution: Some intentional violations may constitute criminal violations of federal, state and local laws, and under such circumstances, the public works director or city engineer may seek the assistance of the EPA, city attorney, state or county prosecutor to commence civil and/or criminal action against any person who violates any requirement of this article or any applicable NPDES or RWQCB stormwater discharge permit condition.

(i) Revoking or withholding of permit: In addition to or in lieu of all other available penalties, the city may revoke or withhold any permit, approval or license to construct improvements to real property or operate a business in the city if the holder of such permit, approval, or license is in violation of any requirement of this article or any applicable NPDES or RWQCB stormwater discharge permit condition.

(j) Liability for costs: The public works director or city engineer may assess liability for costs to any person found in violation of this article for all actual costs incurred by the city in surveillance, sampling and testing, abatement, and remediation associated with a discharge that is in violation of this article. Additionally, the public works director or city engineer may assess liability for costs to any person whose discharge resulted in a violation of the city's stormwater discharge permit.

(Ord. No. 2022-07, § 2, 7-21-22)

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

(Ord. No. 2022-07, § 2, 7-21-22)

If any section, subsection, phrase, or clause of this article is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this division. The city council hereby declares that it would have adopted this article and each section, subsection, phrase, or clause thereof irrespective of the fact that any one or more sections, subsections, phrases, or clauses be declared invalid.

(Ord. No. 2022-07, § 2, 7-21-22)