Whittier Municipal Code Ch. 8.36 Stormwater and Runoff Pollution Control

The ordinance codified in this chapter shall be known as the "Stormwater and Runoff Pollution Control Ordinance of the City of Whittier" and may be referred to as such.

(Ord. 2752 § 1 (part), 1999)

(Ord. No. 3013, § 1, 11-12-13)

The provisions of this chapter are adopted pursuant to the Federal Water Pollution Control Act, also known as the Clean Water Act, as amended, 33 U.S.C. 1251 et seq.

(Ord. 2752 § 1 (part), 1999)

(Ord. No. 3013, § 1, 11-12-13)

The purpose of this chapter is to protect and improve water quality of receiving waters by:

A. Reducing illicit discharges to the municipal stormwater system to the maximum extent practicable;

B. Eliminating illicit connections to the municipal stormwater system;

C. Eliminating spillage, dumping, and disposal of pollutant materials into the municipal stormwater system;

D. Reducing pollutant loads in stormwater and urban runoff, from land uses and activities identified in the municipal NPDES permit.

E. Reducing the contribution of pollutants from the MS4 through interagency coordination.

The intent of this chapter is to enhance and protect the water quality of the receiving waters of the United States in a manner that is consistent with the Clean Water Act and acts amendatory thereof or supplementary thereto; applicable implementing regulations; the municipal NPDES permit and any amendment, revision or reissuance thereof.

(Ord. 2752 § 1 (part), 1999)

(Ord. No. 3013, § 1, 11-12-13)

For the purpose of the provisions of this chapter concerning water quality hereinafter set forth, the following words and phrases shall be construed to have the meanings set forth, unless it is apparent from the context that a different meaning is intended:

"Construction general permit" or "CGP" means general permit for storm water discharges associated with construction and land disturbance activities. General NPDES permit issued by the state water board, which authorizes the discharge of stormwater from construction activities under certain conditions.

"Discharge" means the release of a pollutant or pollutants from the MS4 when used without qualification.

"Industrial/commercial facility" means any facility involved and/or used in the production, manufacture, storage, transportation, distribution, exchange or sale of goods and/or commodities, and any facility involved and/or used in providing professional and non-professional services. This category of facilities includes, but is not limited to, any facility defined by either the Standard Industrial Classifications (SIC) or the North American Industry Classification System (NAICS). Facility ownership (federal, state, municipal, private and profit motive of the facility are not factors in this definition.

"Industrial general permit" or "IGP" means general permit for storm water discharges associated with industrial activities. General NPDES permit issued by the state water board, which authorizes the discharge of stormwater from certain industrial activities under certain conditions.

"Low impact development or "LID" means the implementation of systems and practices that use or mimic natural processes to: 1) infiltrate and recharge, 2) evapotranspire and/or 3) harvest and use precipitation near to where it falls to earth.

"Non-stormwater discharge" means any discharge into the MS4 that is not composed entirely of stormwater.

"Receiving waters" means a "water of the United States" into which waste and/or pollutants are, or may be, discharged.

"Storm water" or "Stormwater" means storm water runoff, snow melt runoff, and surface runoff and drainage related to precipitation events (pursuant to 40 CFR § 122.26(b)(13); 55 Fed. Reg. 47990, 47995 (Nov. 16, 1990)).

(Ord. 2752 § 1 (part), 1999)

(Ord. No. 3013, § 1, 11-12-13; Ord. No. 3112, § 2, 2-25-20; Ord. No. 3145, § 3, 2-14-23)

A. No person shall cause or allow an illicit discharge to enter the municipal stormwater system.

B. Any person causing an illicit discharge to the MS4 may be required by the public works director to pay for the cost of clean-up and remediation.

C. Any owner of any private property from which a nonstormwater discharge is observed may be required by the public works director to pay for the cost of collecting and analyzing the discharge to determine if it is an illicit discharge.

D. The following nonstormwater discharges are considered exempt or conditionally exempt illicit discharges:

1. Discharges identified in Part III.A of the 2012 NPDES MS4 permit.

(Ord. 2752 § 1 (part), 1999)

(Ord. No. 3013, § 1, 11-12-13)

No person shall intentionally place, litter, accumulate, maintain, discharge, or cause to enter into the MS4 any pollutant or any foreign object such as batteries, tires, waste receptacles, yard debris, refuse, rubbish, food waste, chemicals, animal waste or oil cans.

(Ord. 2752 § 1 (part), 1999)

(Ord. No. 3013, § 1, 11-12-13)

A. No person shall maintain or intentionally use a connection that operates to convey an illicit discharge to the municipal stormwater system.

B. Upon discovery of an illicit connection, the person owning or operating such connection shall either remove it or render it incapable of conveying an illicit discharge.

C. If any person fails to eliminate an illicit connection after being called upon by the city to do so, the public works director shall take appropriate measures to remove or disable the illicit connection and may recover such costs from the owner of such illicit connection.

(Ord. 2752 § 1 (part), 1999)

(Ord. No. 3013, § 1, 11-12-13)

A. No person shall cause or threaten to cause the discharge of pollutants to the MS4 by exposing such pollutants to stormwater runoff.

B. The owner of parking lot surfaces, public or private, with a capacity of twenty-five spaces or more, shall cause the parking lot surface to be cleaned as often as necessary to remove refuse, residual oil, grease, or other pollutants that might otherwise be discharged to the MS4 by runoff.

(Ord. 2752 § 1 (part), 1999)

(Ord. No. 3013, § 1, 11-12-13)

This includes but is not limited to the implementation of source control BMPs listed in Table 6 of the municipal NPDES permit, where applicable.

(Ord. 2752 § 1 (part), 1999)

(Ord. No. 3013, § 1, 11-12-13; Ord. No. 3145, § 3, 2-14-23)

This includes but is not limited to the implementation of source control BMPs listed in Table 6 of the municipal NPDES permit, where applicable.

(Ord. 2752 § 1 (part), 1999; Ord. No. 3145, § 3, 2-14-23)

(Ord. No. 3013, § 1, 11-12-13)

A. No person shall commence or continue any construction activity in the city that causes the disturbance of one acre or more of soil by clearing, grading, and excavating without demonstrating to the city that such person has obtained a NPDES construction general permit from the SWRCB. The NPDES construction general permit does not apply to the following construction activity:

1. Routine maintenance to maintain original line and grade, hydraulic capacity, or original purpose of the facility;

2. Disturbances to land surfaces solely related to agricultural operations such as disking, harrowing, terracing and leveling, and soil preparation;

3. Construction activity covered by an individual NPDES permit for stormwater discharges;

4. Landfill construction activity that is subject to the industrial general permit; or

5. Construction activity that discharges to combined sewer systems.

In the case of a public emergency that requires immediate construction activities, a discharger shall submit a brief description of the emergency construction activity within five days of the onset of construction, and then shall submit all PRDs within thirty days.

B. Any person engaged in a construction activity in the city requiring a NPDES construction permit shall retain at the construction site the following documents:

1. A copy of the notice of intent to comply with terms of the general permit to discharge water associated with construction activity;

2. A waste discharge identification number issued by the SWRCB;

3. A stormwater pollution prevention plan and monitoring program plan for the construction activity requiring the construction permit; and

4. Records of all inspections, compliance and noncompliance reports, evidence of self-inspection and good house keeping practices.

C. Any person engaged in a construction activity in the city requiring a general construction stormwater activity permit shall, upon reasonable request from a duly authorized officer of the city, provide any of the documents specified in subsection B. of this section and shall retain said documents for at least three years after completion of construction.

D. Construction activity not subject to the NPDES Industrial General permit that are subject to pollution control requirements under the municipal NPDES permit, shall implement BMPs prescribed by the regional board or its executive officer, through programs or actions made pursuant to the municipal NPDES permit.

(Ord. 2752 § 1 (part), 1999)

(Ord. No. 3013, § 1, 11-12-13)

Construction activity not subject to the NPDES construction general permit that are subject to pollution control requirements under the municipal NPDES permit, shall implement BMPs prescribed by the regional board or its executive officer, or the city's public works director through programs or actions made pursuant to the municipal NPDES permit. This includes the implementation of an effective combination of erosion and sediment control BMP listed in table 7 and/or table 8 of the municipal NPDES permit, where applicable.

(Ord. 2752 § 1 (part), 1999)

(Ord. No. 3013, § 1, 11-12-13; Ord. No. 3145, § 3, 2-14-23)

Prior to the construction of a new development or redevelopment project, such project shall be evaluated by the city for applicability of low impact development (LID) requirements per part VIII.F.1.a-b of the municipal NPDES permit. ; Ord. No. 3145, § 3, 2-14-23

Editor's note— Ord. No. 3145, § 3, adopted Feb. 14, 2023, amended § 8.36.130 in its entirety to read as herein set out. Former § 8.36.130 pertained to control of pollutants from new developments and derived from Ord. 2752, § 1, adopted in 1999; and Ord. No. 3013, § 1, adopted Nov. 12, 2013.

A. Authority to Inspect. The director of public works and his/her designees (hereinafter "authorized officers") are authorized and directed to enforce all provisions of this chapter. Prior to commencing any inspection, the authorized enforcement officer shall obtain either the consent of the owner or occupant of the property or shall obtain an administrative inspection or criminal search warrant.

B. Authority to Conduct Sampling and Establish Sampling Devices. With the consent of the owner or occupant or pursuant to a search warrant, any authorized enforcement officer may establish on any property such devices as necessary to conduct sampling or monitoring activities necessary to determining the concentrations of pollutants in stormwater and/or nonstormwater runoff. During all inspections as provided herein, the authorized enforcement officer may take any samples deemed necessary to aid in the pursuit of the inquiry or in the recordation of the activities onsite.

C. Requirement to Sample or Monitor. Any authorized enforcement officer may request that any person engaged in any activity and/or owning or operating any facility which may cause or contribute to stormwater pollution or contamination, illicit discharges, and/or discharge of nonstormwater to the stormwater system, undertake such monitoring activities and/or analyses and furnish such reports as the authorized enforcement officer may specify. The burden, including costs, of these activities, analyses and reports shall be paid by the owner of the property and bear a reasonable relationship to the need for the monitoring, analyses and reports and the benefits to be obtained.

(Ord. 2752 § 1 (part), 1999)

(Ord. No. 3013, § 1, 11-12-13; Ord. No. 3112, § 2, 2-25-20)

A. Criminal Sanctions.

1. Penalty for Violation. It is unlawful for any person to violate any provisions or fail to comply with any of the requirements of this chapter. Any violation of the provisions of this chapter shall be deemed an infraction, and may be punished as such, notwithstanding the fact that at the discretion of the enforcing attorney, the violation of any section of this chapter may be filed as a misdemeanor or an infraction. The complaint charging such violation shall specify whether the violation is a misdemeanor or an infraction.

2. Prosecutor. The enforcing attorney may act on the request of the city manager or his/her designee, to pursue enforcement actions in accordance with the provisions of this chapter.

B. Administrative Remedies. The authorized enforcement officer may, in his/her discretion, issue either a notice of noncompliance or a cease and desist order as hereinafter described. In determining which remedy option to pursue, the authorized enforcement officer may consider the severity of the discharge or violation, the potential for irreparable harm which may be caused by the discharge or violation, and/or whether the owner, occupant or responsible person is a repeat offender of the same or similar violation.

1. Notice of Noncompliance. The authorized enforcement officer may deliver to a permittee, the owner or occupant of any property, or to any person responsible for an illicit connection or prohibited discharge, or any other violation of this chapter, a notice of noncompliance. The notice of noncompliance shall be delivered in accordance with subsection B.4. of this section.

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

b. The notice of noncompliance shall state a compliance date that must be met by the owner, occupant and/or person provided, however, that the compliance date may not exceed ninety days unless the authorized enforcement officer extends the compliance deadline up to an additional ninety days where good cause exists for an extension.

c. The notice of noncompliance may include the following terms and requirements:

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

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

iii. Specific requirements for containment, cleanup, removal, storage, handling, use, proper disposal, and treatment of any pollutant having the potential to contact stormwater or nonstormwater runoff;

iv. Any other terms or requirements reasonably calculated to prevent the imminent threat of or continuing violations of this chapter including, but not limited to, requirements for compliance with best management practices guidance documents promulgated by any federal, state of California or regional agency; and

v. Any other terms or requirements reasonably calculated to achieve full compliance with the terms, conditions and requirements of any permit issued pursuant hereto.

2. Cease and Desist Orders. The authorized enforcement officer may issue a cease and desist order. A cease and desist order shall be delivered in accordance with subsection B.4. of this section. A cease and desist order may direct a permittee, the owner or occupant of any property and/or other person responsible for a violation of this chapter to:

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

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

c. Immediately discontinue any other violation of this chapter;

d. Clean up or remediate the area affected by the violation; or

e. Immediately cease any activity not in compliance with the terms, conditions and requirements of the permit issued pursuant to this chapter.

3. Recovery of Costs. The authorized enforcement officer may deliver to the owner or occupant of any property, any permittee or any other person who has failed to comply with either a notice of noncompliance or a cease and desist order, an invoice for costs (invoice of cost) for reimbursement of the city's actual costs incurred in issuing and enforcement of any provision of this chapter. Actual costs shall include, but are not limited to, the cost to the city for the reinspection of the property, preparation, issuance and enforcement of any subsequent notice or order. The invoice of cost shall not apply to the first reinspection after service of the notice or order if the owner or occupant of any property, the permittee or person has corrected all violations as set forth in the notice or order. The costs charged herein are intended to compensate for administration costs and not for enforcement of the law.

The invoice for costs shall be due and payable to the city within thirty days from the date of service. If any owner, occupant, permittee or person fails to pay the invoice for costs or file a timely appeal pursuant to subsections B.5. through B.9. of this section then the enforcing attorney may institute collection proceedings.

4. Delivery of Notice. Any notice of noncompliance, cease and desist order, notice of legal nonconforming connection or invoice of costs (hereinafter, collectively referred to as the "notice") shall be delivered pursuant to the following requirements:

a. The notice shall state that the recipient has a right to appeal the matter as set forth in subsections B.5.—9. of this section;

b. Delivery shall be deemed complete upon:

i. Personal service to the recipient;

ii. Deposit in the U.S. mail, postage prepaid for first class delivery; or

iii. Facsimile service with confirmation of receipt.

c. Where the recipient of notice is the owner of the property, the address for notice shall be the address from the most recently issued equalized assessment roll for the property or as otherwise appears in the current records of the city;

d. Where the recipient is a permittee, the address for notice shall be the address set forth on the application for a permit; and

e. Where the owner or occupant of any property cannot be located after the reasonable efforts of the authorized enforcement officer, a notice shall be deemed delivered after posting said notice on the property for a period of ten business days.

5. Administrative Hearing. Except as set forth in subsection B.7. of this section any person receiving a notice, or any person who is subject to any adverse determination made pursuant to this chapter, may appeal the matter by requesting an administrative hearing as set forth below. Notwithstanding the foregoing, these administrative appeal procedures shall not apply to criminal proceedings initiated to enforce this chapter.

6. Request for Administrative Hearing. Any person appealing a notice or an adverse determination shall, within thirty days of receipt thereof, file a written request for an administrative hearing with the office of the city clerk, accompanied by an administrative hearing fee as established by separate resolution. A copy of the request for administrative hearing shall also be mailed on the date of filing to the hearing officer. Thereafter, a hearing on the matter shall be held before the hearing officer within forty-five business days of the date of filing of the written request unless, in the reasonable discretion of the hearing officer and pursuant to a written request by the appealing party, a continuance of the hearing is granted.

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

8. Hearing Proceedings. The authorized enforcement officer shall appear in support of the notice, determination or emergency abatement action and the appealing party shall appear in opposition of the notice, determination or emergency abatement action. Each party shall have the right to present testimony and other documentary evidence as necessary for explanation of the case. The decision of the hearing officer shall be issued within ten business days of the conclusion of the hearing and shall be delivered by first-class mail, postage prepaid, to the appealing party.

Notwithstanding the above, the decision of the hearing officer in any preceding determining the validity of a cease and desist order or following an emergency abatement action shall be mailed within five business days following the conclusion of the hearing. However, all other provisions in this chapter regarding appeal procedures shall apply to cease and desist orders.

9. Final Decision and Appeal to the City Manager. A person may appeal the decision of the hearing officer by filing a written notice of appeal with the city manager's office within ten business days from the date of mailing of the hearing officer's decision. The appeal shall be scheduled for city manager or his/her designee action in accordance with customary filing deadlines for projects submitted to the city manager. The notice of appeal shall state in detail the factual basis for the appeal. The city manager shall consider the appeal not less than ten, nor more than forty-five days, following the filing of the appeal. The city manager may continue the hearing date where necessary. At the time and place set for such appeal hearing, the city manager shall hold a de novo hearing. If the city manager finds from the relevant evidence at the hearing that the action taken was in conformance with the provisions of this chapter, it shall require compliance with the hearing officer's decision. A copy of the city manager's decision shall be mailed to the appellant within five working days after adoption thereof.

The decision of the city manager shall be final. The decision must include notice that any legal challenge to the final decision shall be made pursuant to the provisions of Code of Civil Procedure Section 1094.5 and Section 1094.6 and shall be commenced within ninety days following issuance of the final decision. The administrative hearing fee paid by a prevailing party in an appeal shall be refunded.

10. City Abatement. In the event the owner or occupant of property, the operator of a facility, a permittee or any other person fails to comply with any provision of a compliance schedule issued to such owner, occupant, operator, permittee or person pursuant to this chapter, the authorized enforcement officer may request the enforcing attorney to obtain an abatement warrant or other appropriate judicial authorization to enter the property, abate the condition and restore the property. Any costs incurred by the city in obtaining and carrying out an abatement warrant or other judicial authorization may be recovered pursuant to subsection C.4. of this section.

C. Nuisance. Any condition in violation of this chapter including, but not limited to, the maintenance or use of any illicit connection or the occurrence of any prohibited discharge, shall constitute a threat to the public health, safety and welfare, and is declared and deemed a nuisance pursuant to Government Code Section 38771. At the request of the city manager or his/her designee, the enforcing attorney may seek a court order to enjoin and/or abate the nuisance.

1. Court Order to Enjoin and/or Abate. At the request of the city manager or his/her designee, the enforcing attorney may seek a court order to enjoin and/or abate the nuisance.

2. Notice to Owner and Occupant. Prior to seeking any court order to enjoin or abate a nuisance or threatened nuisance, the authorized enforcement officer shall provide notice of the proposed injunction or abatement to the owner and occupant, if any, of the property where the nuisance or threatened nuisance is occurring.

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

An imminent danger shall include, but is not limited to, exigent circumstances created by the dispersal of pollutants, where the same presents a significant and immediate threat to the public health and/or safety of the environment. Notwithstanding the authority of the city to conduct an emergency abatement action, the administrative hearing and appeal procedures pursuant to subsections B.5.—9. of this section shall follow the abatement action.

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

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

At the direction of the city manager or his/her designee, the enforcing attorney may be authorized to collect nuisance abatement costs or enforce a nuisance lien in an action brought for a money judgment or by delivery to the county assessor of a special assessment against the property in accordance with the conditions and requirements of Government Code Section 38773.5.

D. Consecutive Violations. Each day in which a violation occurs and each separate failure to comply with either a separate provision of this chapter, a notice of noncompliance, a cease and desist order or a permit issued pursuant to this chapter shall constitute a separate violation of this chapter punishable by fines or sentences issued in accordance herewith.

E. Nonexclusive Remedies. Each and every remedy available for the enforcement of this chapter shall be nonexclusive and it is within the discretion of the authorized enforcement officer or enforcing attorney to seek cumulative remedies, except that multiple monetary fines or penalties shall not be available for any single violation of this chapter.

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

G. Injunctions. At the request of the city manager or his/her designee, the enforcing attorney may file in a court of competent jurisdiction a civil action seeking an injunction against any threatened or continuing noncompliance with the provisions of this chapter. Any temporary, preliminary or permanent injunction issued pursuant hereto may include an order for reimbursement to the city of all costs incurred in enforcing this chapter including costs of inspection, investigation and monitoring, the costs of abatement undertaken at the expense of the city, costs relating to restoration of the environment and all other expenses as authorized by law.

H. Other Civil Remedies.

1. The city manager or his/her designee may cause the enforcing attorney to file an action for civil damages in a court of competent jurisdiction seeking recovery of:

a. All costs incurred in enforcement of the chapter including, but not limited to, costs relating to investigation, sampling, monitoring, inspection, administrative expenses, all other expenses as authorized by law and consequential damages;

b. All costs incurred in mitigating harm to the environment or reducing the threat to human health; and

c. Damages for irreparable harm to the environment.

2. The enforcing attorney is authorized to file actions for civil damages resulting from any trespass or nuisance occurring on public land or to the MS4 from any violation of this chapter where the same has caused damage, contamination or harm to the environment, public property or the MS4.

I. Whenever necessary, interagency coordination will be employed to enforce the provisions of this chapter.

(Ord. 2752 § 1 (part), 1999)

(Ord. No. 3013, § 1, 11-12-13; Ord. No. 3112, § 2, 2-25-20)