[HISTORY: Adopted by the Common Council of the City of Burlington 2-7-2017 by Ord. No. 2019(15). Amendments noted where applicable.]
The purpose of this chapter is to provide for the health, safety,
environment and general welfare of the citizens of the City of Burlington
through the regulation of nonstormwater discharges into waters of
the state or the municipal separate storm sewer system (MS4) to the
maximum extent practicable as required by federal and state law. This
chapter establishes methods for controlling the introduction of pollutants
into waters of the state or the MS4 to comply with requirements of
the Wisconsin Pollutant Discharge Elimination System (WPDES) permit
process. The objectives of this chapter are:
A.
To regulate the contribution of pollutants into waters of the state
or the MS4 by stormwater discharges by any user.
B.
To prohibit illicit connections and discharges into waters of the
state or the MS4.
C.
To establish legal authority to carry out all inspection, surveillance,
monitoring, and enforcement procedures necessary to ensure compliance
with this chapter.
For the purposes of this chapter, the following shall mean:
Employees or designees of the Director of Public Works.
Structural or nonstructural measures, practices, techniques
or devices employed to avoid or minimize soil, sediment or pollutants
carried in runoff to waters of the state. Pollution prevention and
educational practices, maintenance procedures, and other management
practices to prevent or reduce the discharge of pollutants directly
or indirectly to stormwater, receiving waters, or stormwater conveyance
systems. BMPs also include treatment practices, operating procedures,
and practices to control site runoff, spillage or leaks, sludge or
water disposal, or drainage from raw materials storage.
The federal Water Pollution Control Act (33 U.S.C. § 1251
et seq.), and any subsequent amendments thereto.
Activities subject to the City of Burlington construction
permits per Construction Site Erosion Control Zoning Ordinance[1] or WPDES construction permits per Ch. NR 216, Wis. Adm.
Code, and Ch. 283, Wis. Stats.
Stormwater that comes into contact with material handling
equipment or activities, raw materials, intermediate products, final
products, waste materials, byproducts or industrial machinery in the
source areas listed in Ch. NR 216, Wis. Adm. Code.
The Wisconsin Department of Natural Resources.
As defined in Ch. 283, Wis. Stats., when used without qualification
includes a discharge of any pollutant.
As defined in Ch. 283, Wis. Stats., means any addition of
any pollutant to the waters of this state from any point source.
Any material, including any substance, waste, or combination
thereof, which because of its quantity, concentration, or physical,
chemical, or infectious characteristics may cause, or significantly
contribute to, a substantial present or potential hazard to human
health, safety, property, or the environment when improperly treated,
stored, transported, disposed of, or otherwise managed.
An illicit connection is defined as either of the following:
Any drain or conveyance, whether on the surface or subsurface,
that allows an illicit discharge to enter waters of the state or the
MS4 including but not limited to any conveyances that allow any nonstormwater
discharge including sewage, process wastewater, and wash water to
enter waters of the state or the MS4 and any connections to waters
of the state or the MS4 from indoor drains and sinks, regardless of
whether said drain or connection had been previously allowed, permitted,
or approved by an authorized enforcement agency; or
Any drain or conveyance connected from a commercial or industrial
land use to waters of the state or the MS4 which has not been documented
in plans, maps, or equivalent records and approved by an authorized
enforcement agency.
Any discharge into waters of the state or the municipal separate
storm sewer system that is not composed entirely of stormwater. Nonstormwater
discharges that are not considered illicit discharges include water
line flushing, landscape irrigation, diverted stream flows, uncontaminated
groundwater infiltration, uncontaminated pumped groundwater, discharges
from potable water sources, foundation drains, air conditioning condensation,
irrigation water, lawn watering, individual residential car washing,
flows from riparian habitats and wetlands, firefighting, and discharges
authorized under a WPDES permit unless identified by the Director
of Public Works as a significant source of pollutants to waters of
the state.
Activities subject to WPDES Industrial Permits per Ch. NR
216, Wis. Adm. Code, and Ch. 283, Wis. Stats.
A level of implementing management practices in order to
achieve a performance standard or other goal which takes into account
the best available technology, cost effectiveness and other competing
issues such as human safety and welfare, endangered and threatened
resources, historic properties and geographic features.
As defined in Ch. NR 216, Wis. Adm. Code, means a conveyance
or system of conveyances including roads with drainage systems, municipal
streets, catch basins, curbs, gutters, ditches, constructed channels
or storm drains, which meets all the following criteria:
Any city, town, village, county, county utility district,
town sanitary district, town utility district, school district or
metropolitan sewage district or any other public entity created pursuant
to law and having authority to collect, treat or dispose of sewage,
industrial wastes, stormwater or other wastes.
Any discharge to the MS4 that is not composed entirely of
stormwater.
The point at which stormwater is discharged to waters of
the state or to a storm sewer.
Any person holding fee title, an easement or other interest
in property.
An individual, owner, operator, corporation, partnership,
association, municipality, interstate agency, state agency or federal
agency.
A discernible, confined and discrete conveyance, including
but not limited to any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock, concentrated animal feeding
operation or vessel or other floating craft from which pollutants
may be discharged either into the waters of the state or into a publicly
owned treatment works except for a conveyance that conveys only stormwater
or a discernible, confined and discrete conveyance of stormwater for
which a permit is required under § 283.33(1), Wis. Stats.
Any dredged spoil, solid waste, incinerator residue, sewage,
garbage, refuse, oil, sewage sludge, munitions, chemical wastes, biological
materials, radioactive substance, heat, wrecked or discarded equipment,
rock, sand, cellar dirt and industrial, municipal and agricultural
waste discharged into water.
As defined in Ch. 283, Wis. Stats., means any man-made or
man-induced alteration of the chemical, physical, biological or radiological
integrity of water.
Taking measures to eliminate or reduce pollution.
Any building, lot, parcel of land, or portion of land whether
improved or unimproved including adjacent sidewalks and parking strips.
Any surface flow, runoff, and drainage consisting entirely
of water from any form of natural precipitation, and resulting from
such precipitation.
A document which describes the best management practices
and activities to be implemented by a person or business to identify
sources of pollution or contamination at a site and the actions to
eliminate or reduce pollutant discharges to waters of the state or
the MS4 to the maximum extent practicable.
Any water or other liquid, other than uncontaminated stormwater,
discharged from a facility.
A natural or artificial channel through which water flows.
These channels include: all blue and dashed blue lines on the USGS
quadrangle maps, all channels shown on the soils maps in the NRCS
soils book for Racine and Walworth Counties, all channels identified
on a site, and new channels that are created as part of a development.
The term "watercourse" includes waters of the state as herein defined.
As defined in Ch. 283, Wis. Stats., means those portions
of Lake Michigan and Lake Superior within the boundaries of Wisconsin,
all lakes, bays, rivers, streams, springs, ponds, wells, impounding
reservoirs, marshes, watercourses, drainage systems and other surface
water or groundwater, natural or artificial, public or private within
the state or under its jurisdiction, except those waters which are
entirely confined and retained completely upon the property of a person.
A Wisconsin pollutant discharge elimination system permit
issued by the department pursuant to Ch. 283, Wis. Stats.
This chapter shall apply to all water and discharges entering
waters of the state or the MS4 storm drain system generated on any
lands unless explicitly exempted by the City of Burlington Department
of Public Works.
The Director of Public Works shall administer, implement, and
enforce the provisions of this chapter. Any powers granted or duties
imposed upon the Director of Public Works may be delegated in writing
by the Director of Public Works to persons or entities acting in the
beneficial interest of or in the employ of the agency.
This chapter is not intended to modify or repeal any other ordinance,
rule, regulation, or other provision of law. The requirements of this
chapter are in addition to the requirements of any other ordinance,
rule, regulation, or other provision of law, and where any provision
of this chapter imposes restrictions different from those imposed
by any other ordinance, rule, regulation, or other provision of law,
whichever provision is more restrictive or imposes higher protective
standards for human health or the environment shall control.
The provisions of this chapter are hereby declared to be severable.
If any provision, clause, sentence, or paragraph of this chapter or
the application thereof to any person, establishment, or circumstances
shall be held invalid, such invalidity shall not affect the other
provisions or application of this chapter.
The standards set forth herein and promulgated pursuant to this
chapter are minimum standards; therefore this chapter does not intend
or imply that compliance by any person will ensure that there will
be no contamination, pollution, or unauthorized discharge of pollutants.
A.
Prohibition of illicit discharges. No person shall throw, dump, spill,
drain, or otherwise discharge, cause, or allow others under its control
to throw, dump, spill, drain, or otherwise discharge into waters of
the state or the MS4 any pollutants or waters containing any pollutants,
other than stormwater.
B.
The commencement, conduct or continuance of any illegal discharge
to the storm drain system is prohibited except as described as follows:
(1)
The following discharges are exempt from discharge prohibitions established
by this chapter: Water line flushing, landscape irrigation, diverted
stream flows, uncontaminated groundwater infiltration, uncontaminated
pumped groundwater, discharges from potable water sources, foundation
drains, air conditioning condensation, irrigation water, lawn watering,
individual residential car washing, flows from riparian habitats and
wetlands, and discharges authorized under a WPDES permit unless identified
by the Director of Public Works as a significant source of pollutants
to waters of the state.
(2)
Discharges or flow from firefighting, and other discharges specified
in writing by the Director of Public Works as being necessary to protect
public health and safety.
(3)
Discharges associated with dye testing; however, this activity requires
a verbal notification to the Director of Public Works and the Department
of Natural Resources a minimum of one business day prior to the time
of the test.
(4)
Any nonstormwater discharges permitted under a construction activity
permit, industrial activity permit, or WPDES permit shall comply with
all provisions of such permit. Proof of compliance with said permit
may be required in a form acceptable to the Director of Public Works
prior to allowing discharges to waters of the state or the MS4.
C.
Prohibition of illicit connections.
(1)
The construction, use, maintenance or continued existence of illicit
connections to waters of the state or the MS4 is prohibited.
(2)
This prohibition expressly includes, without limitation, illicit
connections made in the past, regardless of whether the connection
was permissible under law or practices applicable or prevailing at
the time of connection.
(3)
A person is considered to be in violation of this chapter if the
person connects a line conveying sewage to waters of the state or
the MS4, or allows such a connection to continue.
(4)
Improper connections in violation of this chapter must be disconnected
and redirected, if necessary, to an approved onsite wastewater management
system or the sanitary sewer system upon approval of the Director
of Public Works.
(5)
Any drain or conveyance that has not been documented in plans, maps
or equivalent, and which may be connected to waters of the state of
the MS4, shall be located by the owner or occupant of that property
upon receipt of written notice of violation from the Director of Public
Works requiring that such locating be completed. Such notice will
specify a reasonable time period within which the location of the
drain or conveyance is to be determined, that the drain or conveyance
be identified as storm sewer, sanitary sewer or other, and that the
outfall location or point of connection to the storm sewer system,
sanitary sewer system or other discharge point be identified. Results
of these investigations are to be documented and provided to the Director
of Public Works.
Every person owning property through which a watercourse passes,
or such person's lessee, shall keep and maintain that part of
the watercourse within the property free of soil erosion, trash, debris,
and other obstacles that would pollute, contaminate, or significantly
retard the flow of water through the watercourse. In addition, the
owner or lessee shall maintain existing privately owned structures
within or adjacent to a watercourse, so that such structures will
not become a hazard to the use, function, or physical integrity of
the watercourse.
A.
Submission of NOI to City of Burlington.
(1)
Any person subject to an industrial or construction activity NPDES
stormwater discharge permit shall comply with all provisions of such
permit. Proof of compliance with said permit may be required in a
form acceptable to the City of Burlington prior to the allowing of
discharges to the MS4.
(2)
The operator of a facility, including construction sites, required
to have an NPDES permit to discharge stormwater associated with industrial
activity shall submit a copy of the notice of intent (NOI) to the
City of Burlington at the same time the operator submits the original
notice of intent to the EPA as applicable.
(3)
The copy of the notice of intent may be delivered to the City of
Burlington either in person or by mailing it to:
|
Notice of Intent to Discharge Stormwater
City of Burlington
300 North Pine Street
Burlington, WI 53105
|
(4)
A person commits an offense if the person operates a facility that
is discharging stormwater associated with industrial activity without
having submitted a copy of the notice of intent to do so to the City
of Burlington.
A.
Right of entry: inspecting and sampling. The Director of Public Works
shall be permitted to enter and inspect properties and facilities
subject to regulation under this chapter as often as may be necessary
to determine compliance with this chapter.
(1)
If a property or facility has security measures in force which require
proper identification and clearance before entry into its premises,
the owner or operator shall make the necessary arrangements to allow
access to representatives of the Director of Public Works.
(2)
Facility owners and operators shall allow the Director of Public
Works ready access to all parts of the premises for the purposes of
inspection, sampling, examination and copying of records.
(3)
The Director of Public Works shall have the right to set up on any
property or facility such devices as are necessary in the opinion
of the Director of Public Works to conduct monitoring and/or sampling
of the facility's stormwater discharge.
(4)
The Director of Public Works has the right to require the owner or
operator to install monitoring equipment as necessary, and make the
monitoring data available to the Director of Public Works. The facility's
sampling and monitoring equipment shall be maintained at all times
in a safe and proper operating condition by the discharger at its
own expense. All devices used to measure stormwater flow and quality
shall be calibrated to ensure their accuracy.
(5)
Any temporary or permanent obstruction to safe and easy access to
the property or facility to be inspected and/or sampled shall be promptly
removed by the owner or operator at the written or oral request of
the Director of Public Works and shall not be replaced. The costs
of clearing such access shall be borne by the owner or operator.
(6)
Unreasonable delays in allowing the Director of Public Works access
to a facility is a violation of this chapter. A person who is the
operator of a facility commits an offense if the person denies the
Director of Public Works reasonable access to the facility for the
purpose of conducting any activity authorized or required by this
chapter.
B.
Special inspection warrant. If the Director of Public Works has been
refused access to any part of the premises from which stormwater is
discharged, and the Director of Public Works is able to demonstrate
probable cause to believe that there may be a violation of this chapter,
or that there is a need to inspect and/or sample as part of a routine
inspection and sampling program designed to verify compliance with
this chapter or any order issued hereunder, or to protect the overall
public health, safety, environment and welfare of the community, then
the Director of Public Works may seek issuance of a special inspection
warrant per § 66.0119, Wis. Stats.
The owner or operator of any activity, operation, or facility
which may cause or contribute to pollution or contamination of stormwater
shall provide, at their own expense, reasonable protection from accidental
discharge of prohibited materials or other wastes into waters of the
state or the MS4 through the use of structural and nonstructural BMPs.
Further, any person responsible for a property or premise, that is,
or may be, the source of an illicit discharge, may be required to
implement, at said person's expense, additional structural and
nonstructural BMPs to prevent the further discharge of pollutants
to waters of the state or the MS4. Compliance with all terms and conditions
of a valid permit authorizing the discharge of stormwater associated
with industrial activity or construction activity, to the maximum
extent practicable, shall be deemed compliance with the provisions
of this section.
A.
Notwithstanding other requirements of law, as soon as any person
responsible for a facility or operation, or responsible for emergency
response for a facility or operation, has information of any known
or suspected release of materials which is resulting or may result
in illicit discharges or pollutants discharging into stormwater, the
MS4, or waters of the state, said person shall take all necessary
steps to ensure the discovery, containment, and cleanup of such release,
so as to minimize the impacts of the discharge.
B.
In the event of such a release of hazardous materials, said person
shall immediately notify emergency response agencies of the occurrence
via emergency dispatch services, and shall also notify the Director
of Public Works. In the event of a release of nonhazardous materials,
said person shall notify the Director of Public Works in person or
by phone or email or facsimile no later than the next business day.
Notifications in person or by phone shall be confirmed by written
notice addressed and mailed to the Director of Public Works within
three business days of the phone notice. If the discharge of prohibited
materials emanates from a commercial or industrial establishment,
the owner or operator of such establishment shall also retain an on-site
written record of the discharge and the actions taken to prevent its
recurrence. Such records shall be retained for at least five years.
C.
Failure to provide notification of a release as provided above is
a violation of this chapter.
A.
Violations.
(1)
It shall be unlawful for any person to violate any provision or fail
to comply with any of the requirements of this chapter. Any person
who has violated or continues to violate the provisions of this chapter
may be subject to the enforcement actions outlined in this section
or may be restrained by injunction or otherwise abated in a manner
provided by law.
(2)
In the event the violation constitutes an immediate danger to public health or public safety, the Director of Public Works is authorized to enter upon the subject private property, without giving prior notice, to take any and all measures necessary to abate the violation. The Director of Public Works is authorized to seek costs of the abatement as outlined in § 271-15.
B.
Warning notice. When the Director of Public Works finds that any
person has violated, or continues to violate, any provision of this
chapter, or any order issued hereunder, the Director of Public Works
may serve upon that person a verbal or written warning notice, specifying
the violation believed to have occurred and requesting the discharger
to immediately investigate the matter and to seek a resolution whereby
any offending discharge will cease. Investigation and/or resolution
of the matter in response to the warning notice in no way relieves
the alleged violator of liability for any violations occurring before
or after receipt of the warning notice. Nothing in the subsection
shall limit the authority of the Director of Public Works to take
action, including emergency action or any other enforcement action
without first issuing a warning notice.
C.
Notice of violation.
(1)
Whenever the Director of Public Works finds that a person has violated
a prohibition or failed to meet a requirement of this chapter, the
Director of Public Works may order compliance by written notice of
violation to the responsible person.
(2)
The notice of violation shall contain:
(a)
The name and address of the alleged violator;
(b)
The address when available or a description of the building,
structure or land upon which the violation is occurring, or has occurred;
(c)
A statement specifying the nature of the violation;
(d)
A description of the remedial measures necessary to restore
compliance with this chapter and a time schedule for the completion
of such remedial action;
(e)
A statement of the penalty or penalties that shall or may be
assessed against the person to whom the notice of violation is directed;
(f)
A statement that the determination of violation may be appealed
to the Director of Public Works by filing a written notice of appeal
within five business days of service of notice of violation; and
(g)
A statement specifying that, should the violator fail to restore compliance within the established time schedule, representatives of the Director of Public Works may issue a notice of intent to the responsible party of its intent to perform work necessary to comply with this chapter. The Director of Public Works may go on the land and commence the work after issuing the notice of intent. The Director of Public Works is authorized to seek costs of the abatement as outlined in § 271-15.
(3)
Such notice may require without limitation:
(a)
The performance of monitoring, analyses, and reporting;
(b)
The elimination of illicit connections or discharges;
(c)
That violating discharges, practices, or operations shall cease
and desist;
(d)
The abatement or remediation of stormwater pollution or contamination
hazards and the restoration of any affected property;
(e)
Payment of a fine to cover administrative and remediation costs;
(f)
The implementation of BMPs;
(g)
Suspension of MS4 access.
D.
Emergency cease-and-desist orders.
(1)
When the Director of Public Works finds that any person has violated,
or continues to violate, any provision of this chapter, or any order
issued hereunder, or that the person's past violations are likely
to recur, and that the person's violation(s) has (have) caused
or contributed to an actual or threatened discharge to the MS4 or
waters of the state which reasonably appears to present an imminent
or substantial endangerment to the health or welfare of persons or
to the environment, the Director of Public Works may issue an order
to the violator directing it immediately to cease and desist all such
violations and directing the violator to:
(2)
Any person notified of an emergency order directed to it under this
subsection shall immediately comply and stop or eliminate its endangering
discharge. In the event of a discharger's failure to immediately
comply voluntarily with the emergency order, the Director of Public
Works may take such steps as deemed necessary to prevent or minimize
harm to the MS4 or waters of the state, and/or endangerment to persons
or to the environment, including immediate termination of a facility's
water supply, sewer connection, or other municipal utility services.
The Director of Public Works may allow the person to recommence its
discharge when it has demonstrated to the satisfaction of the Director
of Public Works that the period of endangerment has passed, unless
further termination proceedings are initiated against the discharger
under this chapter.
(3)
A person that is responsible, in whole or in part, for any discharge
presenting imminent endangerment shall submit a detailed written statement,
describing the causes of the harmful discharge and the measures taken
to prevent any future occurrence, to the Director of Public Works
within 30 days of receipt of the notice of violation.
E.
Suspension due to illicit discharges in emergency situations. The
Director of Public Works may, without prior notice, suspend MS4 discharge
access to a person when such suspension is necessary to stop an actual
or threatened discharge which presents or may present imminent and
substantial danger to the environment, or to the health or welfare
of persons, or to the MS4 or waters of the state. If the violator
fails to comply with a suspension order issued in an emergency, the
Director of Public Works may take such steps as deemed necessary to
prevent or minimize damage to the MS4 or waters of the state, or to
minimize danger to persons.
F.
Suspension due to the detection of illicit discharge.
(1)
Any person discharging to the MS4 in violation of this chapter may
have their MS4 access terminated if such termination would abate or
reduce an illicit discharge. The Director of Public Works will notify
a violator of the proposed termination of its MS4 access.
(2)
A person commits an offense if the person reinstates MS4 access to
premises terminated pursuant to this section, without the prior approval
of the Director of Public Works.
G.
Prosecution and penalties.
(1)
Any person violating any provision of this chapter shall be subject
to a forfeiture of not less than $25 nor more than $1,000 and the
costs of prosecution for each violation. Each day a violation exists
shall constitute a separate offense.
(2)
The Director of Public Works may impose upon a violator alternative
compensatory actions, such as storm drain stenciling, attendance at
compliance workshops, river bank cleanup, etc. Compliance with the
provisions of this chapter may also be enforced by injunction in any
court with jurisdiction. It shall not be necessary to prosecute for
forfeiture or a cease and desist order before resorting to injunctional
proceedings.
The costs of the work performed by the Director of Public Works
pursuant to this chapter, plus interest at the rate authorized by
the City of Burlington shall be billed to the responsible party. In
the event a responsible party fails to pay the amount due, the clerk
shall enter the amount due on the tax rolls and collect it as a special
assessment against the property pursuant to subch. VII of Ch. 66,
Wis. Stats.
A.
Board of Appeals. The Board of Appeals created pursuant to § 119-29 of City of Burlington Code of Ordinances enacted pursuant to § 62.23(7)(e), Wis. Stats.:
(1)
Shall hear and decide appeals where it is alleged that there is error
in any order, decision or determination made by the Director of Public
Works in administering this chapter except for cease and desist orders
obtained under § 271-13D.
(2)
Upon appeal, may authorize variances from the provisions of this
chapter which are not contrary to the public interest and where owing
to special conditions a literal enforcement of the provisions of the
ordinance will result in unnecessary hardship; and shall use rules,
procedures, duties and powers authorized by statute in hearing and
deciding appeals and authorizing variances.
B.
Who may appeal. Appeals to the Board of Appeals may be taken by an
aggrieved person or by any office, department, board, or bureau of
the City of Burlington affected by any decision of the Director of
Public Works.
If the violation has not been corrected pursuant to the requirements set forth in the notice of violation, or, in the event of an appeal, the appropriate authority upheld the decision of the Director of Public Works, then representatives of the Director of Public Works may issue a notice of intent to the responsible party of its intent to perform work necessary to comply with this chapter. The Director of Public Works may go on the land and commence the work after issuing the notice of intent. The Director of Public Works is authorized to seek costs of abatement as outlined in § 271-15. It shall be unlawful for any person, owner, agent or person in possession of any premises to refuse to allow the government agency or designated contractor to enter upon the premises for the purposes set forth above.
Any condition in violation of any of the provisions of this
chapter and declared and deemed a nuisance may be summarily abated
or restored at the violator's expense.
A.
The remedies listed in this chapter are not exclusive of any other
remedies available under any applicable federal, state or local law
and it is within the discretion of the Director of Public Works to
seek cumulative remedies.
B.
The Director of Public Works may recover all attorneys' fees,
court costs, and other expenses associated with enforcement of this
chapter, including sampling and monitoring expenses.
