[Adopted 9-14-2009]
A. 
The purpose of this article is to provide for the health, safety, and general welfare of the citizens of the Town of Cumberland through review and approval of post-construction stormwater management plans and monitoring and enforcement of compliance with such plans as required by federal and state law.
B. 
This article establishes methods for post-construction stormwater management in order to comply with minimum control measure requirements of the Federal Clean Water Act, of federal regulations and of Maine's small municipal separate storm sewer systems general permit.
The objectives of this article are to:
A. 
Reduce the impact of post-construction discharge of stormwater on receiving waters; and
B. 
Reduce stormwater runoff rates and volumes, soil erosion and nonpoint source pollution, wherever possible, through use of best management practices as promulgated by the Maine Department of Environmental Protection pursuant to its Chapter 500 and 502 rules and ensure that these management controls are properly maintained and pose no threat to public safety.
A. 
This article applies to all new development and redevelopment within the Town that discharges stormwater to the Town's municipal separate storm sewer system (MS4) and to associated stormwater management facilities.
B. 
Exception. This article does not apply to new development or redevelopment on a lot, tract or parcel where that lot, tract or parcel is part of a subdivision that is approved under this article. Said lot, tract or parcel shall not require separate review under this article but shall comply with the post-construction stormwater management plan requirements for that approved subdivision.
For the purposes of this article, the terms listed below are defined as follows:
APPLICANT
A person with requisite right, title or interest or an agent for such person who has filed an application for new development or redevelopment that requires a post-construction stormwater management plan under this article.
BEST MANAGEMENT PRACTICES (BMP)
Schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of waters of the state. Best management practices also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.
CLEAN WATER ACT
The Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), also known as the "Clean Water Act," and any subsequent amendments thereto.
CONSTRUCTION ACTIVITY
Construction activity including one acre or more of disturbed area. "Construction activity" also includes activity with less than one acre of total land disturbed area if that area is part of a subdivision that will ultimately disturb an area equal to or greater than one acre.
DISCHARGE
Any spilling, leaking, pumping, pouring, emptying, dumping, disposing or other addition of pollutants to waters of the state. "Direct discharge" or "point source" means any 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 are or may be discharged.
DISTURBED AREA
Clearing, grading and excavation. Mere cutting of trees, without grubbing, stump removal, or disturbance or exposure of soil, is not considered "disturbed area." "Disturbed area" does not include routine maintenance but does include redevelopment. "Routine maintenance" is maintenance performed to maintain the original line and grade, hydraulic capacity, and original purpose of land or improvements thereon.
ENFORCEMENT AUTHORITY
The Town Manager or his/her designee who is the person(s) or department authorized by the Town to administer and enforce this article.
MUNICIPAL PERMITTING AUTHORITY
The municipal official or body that has jurisdiction over the land use approval or permit required for a new development or redevelopment.
MUNICIPAL SEPARATE STORM SEWER SYSTEM or MS4
Conveyances for stormwater, including but not limited to roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, human-made channels or storm drains (other than publicly owned treatment works and combined sewers), owned or operated by any municipality, sewer or sewage district, fire district, state agency or federal agency or other public entity that discharge directly to surface waters of the state.
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) STORMWATER DISCHARGE PERMIT
A permit issued by the United States Environmental Protection Agency (EPA) or by the Maine Department of Environmental Protection (DEP) that authorizes the discharge of pollutants to waters of the United States, whether the permit is applicable on an individual, group, or general area-wide basis.
NEW DEVELOPMENT
Any construction activity on unimproved premises, and for purposes of this article includes redevelopment as defined below.
PERSON
Any individual, firm, corporation, municipality, town, quasi-municipal corporation, state agency or federal agency or other legal entity.
POLLUTANT
Dredged spoil, solid waste, junk, incinerator residue, sewage, refuse, effluent, garbage, sewage sludge, munitions, chemicals, biological or radiological materials, oil, petroleum products or by-products, heat, wrecked or discarded equipment, rock, sand, dirt and industrial, municipal, domestic, commercial or agricultural wastes of any kind.
POST-CONSTRUCTION STORMWATER MANAGEMENT PLAN
Best management practices and associated inspection and maintenance procedures for the stormwater management facilities employed by a new development or redevelopment to meet the standards of this article and approved by the municipal permitting authority.
PREMISES
Any building, lot, parcel of land, or portion of land, whether improved or unimproved, including adjacent sidewalks and parking strips, located within the Town from which discharges into the storm drainage system are or may be created, initiated, originated or maintained.
QUALIFIED POST-CONSTRUCTION STORMWATER INSPECTOR
A person who conducts post-construction inspections of stormwater management facilities for compensation and who has received the appropriate training for the same from DEP.
REDEVELOPMENT
Construction activity on premises already improved with buildings, structures or activities or uses, but does not include such activities as exterior remodeling of structures.
REGULATED SMALL MS4
Any small MS4 regulated by the State of Maine general permit for the discharge of stormwater from small municipal separate storm sewer systems ("general permit"), including all those located partially or entirely within an urbanized area (UA) and those additional small MS4s located outside a UA that as of the issuance of the general permit have been designated by the DEP as regulated small MS4s.
SMALL MUNICIPAL SEPARATE STORM SEWER SYSTEM or SMALL MS4
Any MS4 that is not already covered by the Phase I MS4 Stormwater Program, including municipally owned or operated storm sewer systems, state or federally owned systems, such as colleges, universities, or prisons, Maine Department of Transportation and Maine Turnpike Authority road systems and facilities, and military bases and facilities.
STORM DRAINAGE SYSTEM
The Town's municipal separate storm sewer system, including the Town's regulated small MS4 and areas outside the Town's urbanized area that drain into the regulated small MS4.
STORMWATER
Any stormwater runoff, snowmelt runoff, and surface runoff and drainage.
STORMWATER MANAGEMENT FACILITIES
Any parking areas, catch basins, drainage swales, detention basins and ponds, pipes and related structures that are part of the post-construction stormwater management plan for a new development or redevelopment.
TOWN
The Town of Cumberland.
URBANIZED AREA (UA)
The areas of the State of Maine so defined by the latest decennial census by the United States Bureau of the Census.
A. 
Except as provided in § 242-21B above, no applicant for a building permit, subdivision approval, site plan approval or other zoning, planning or other land use approval for new development to which this article is applicable shall receive such permit or approval for that new development unless the municipal permitting authority for that new development also determines that the applicant's post-construction stormwater management plan for that new development meets the requirements of this article.
B. 
At the time of application, the applicant shall notify the municipal permitting authority if its post-construction stormwater management plan includes any BMP(s) that will discharge to the Town's MS4 and shall include in this notification a listing of which BMP(s) will so discharge.
A. 
The applicant shall make adequate provision for the management of the quantity and quality of all stormwater generated by a new development through a post-construction stormwater management plan. This post-construction stormwater management plan shall be designed to meet the standards contained in the Maine Department of Environmental Protection's Chapter 500 and 502 rules and shall comply with the practices described in the manual "Stormwater Management for Maine," published by the Maine Department of Environmental Protection, January 2006, which hereby are incorporated by reference pursuant to 30-A M.R.S.A. § 3003.
B. 
The applicant shall meet the quantity and quality standards above either on site or off site. Where off-site facilities are used, the applicant must submit to the Town documentation, approved as to legal sufficiency by the Town's Attorney, that the applicant has a sufficient property interest in the property where the off-site facilities are located, by easement, covenant or other appropriate legal instrument, to ensure that the facilities will be able to provide post-construction stormwater management for the new development and that the property will not be altered in a way that interferes with the off-site facilities.
C. 
Where the applicant proposes to retain ownership of the stormwater management facilities shown in its post-construction stormwater management plan, the applicant shall submit to the Town documentation, approved as to legal sufficiency by the Town's Attorney, that the applicant, its successors, heirs and assigns shall have the legal obligation and the resources available to operate, repair, maintain and replace the stormwater management facilities. Applicants for new development or redevelopment requiring stormwater management facilities that will not be dedicated to the Town shall enter into a maintenance agreement with the Town. A sample of this maintenance agreement is attached as Appendix 1 to this article.[1]
[1]
Editor's Note: Appendix 1 is on file at the Town Clerk's office.
D. 
Whenever elements of the stormwater management facilities are not within the right-of-way of a public street and the facilities will not be offered to the Town for acceptance as public facilities, the municipal permitting authority may require that perpetual easements not less than 30 feet in width, conforming substantially to the lines of existing natural drainage and in a form acceptable to the Town's Attorney, shall be provided to the Town allowing access for maintenance, repair, replacement and improvement of the stormwater management facilities. When an offer of dedication is required by the municipal permitting authority, the applicant shall be responsible for the maintenance of these stormwater management facilities under this article until such time (if ever) as they are accepted by the Town.
E. 
In addition to any other applicable requirements of this article and the Town's Municipal Code, any new development which also requires a stormwater management permit from the Maine Department of Environmental Protection (DEP) under 38 M.R.S.A. § 420-D shall comply with the rules adopted by DEP under 38 M.R.S.A. § 420-D, Subsection 1, as the same may be amended from time to time, and the applicant shall document such compliance to the municipal permitting authority. Where the standards or other provisions of such stormwater rules conflict with municipal ordinances, the stricter (more protective) standard shall apply.
Any person owning, operating, leasing or having control over stormwater management facilities required by a post-construction stormwater management plan approved under this article shall demonstrate compliance with that plan as follows:
A. 
That person or a qualified post-construction stormwater inspector hired by that person shall, at least annually, inspect the stormwater management facilities, including but not limited to any parking areas, catch basins, drainage swales, detention basins and ponds, pipes and related structures, in accordance with all municipal and state inspection, cleaning and maintenance requirements of the approved post-construction stormwater management plan.
B. 
If the stormwater management facilities require maintenance to function as intended by the approved post-construction stormwater management plan, that person shall take corrective action(s) and address the deficiency or deficiencies within 60 days of identification.
[Amended 6-5-2023]
C. 
That person shall employ a qualified post-construction stormwater inspector to provide, on or by June 1 of each year, an inspection report and a completed and signed certification to the enforcement authority, in a form identical to that attached as Appendix 2 to this article,[1] certifying that the stormwater management facilities have been inspected and that they are adequately maintained and functioning as intended by the approved post-construction stormwater management plan, or that they require maintenance or repair, describing any required maintenance and any deficiencies found during inspection of the stormwater management facilities, and if the stormwater management facilities require maintenance or repair of deficiencies in order to function as intended by the approved post-construction stormwater management plan, the person shall provide a record of the required maintenance or deficiency and corrective action(s) taken. Maintenance and corrective actions must be taken within 60 days of identification. If 60 days is not possible, then the person shall propose an alternate expeditious schedule, which if approved by the Code Enforcement Officer must be met.
[Amended 3-28-2016; 6-5-2023]
[1]
Editor's Note: Appendix 2 is included as an attachment to this chapter.
In order to determine compliance with this article and with the post-construction stormwater management plan, the enforcement authority may enter upon property at reasonable hours with the consent of the owner, occupant or agent to inspect the stormwater management facilities.
Beginning July 1, 2009, and each year thereafter, the Town shall include the following in its annual report to the Maine Department of Environmental Protection:
A. 
The cumulative number of sites that have stormwater management facilities discharging into its MS4;
B. 
A summary of the number of sites that have stormwater management facilities discharging into its MS4 that were reported to the Town;
C. 
The number of sites with documented functioning stormwater management facilities; and
D. 
The number of sites that required routine maintenance or remedial action to ensure that stormwater management facilities are functioning as intended.
It shall be unlawful for any person to violate any provision of or to fail to comply with any of the requirements of this article or of the post-construction stormwater management plan. Whenever the enforcement authority believes that a person has violated this article or the post-construction stormwater management plan, the enforcement authority may enforce this article in accordance with 30-A M.R.S.A. § 4452.
A. 
Whenever the enforcement authority believes that a person has violated this article or the post-construction stormwater management plan, the enforcement authority may order compliance with this article or with the post-construction stormwater management plan by written notice of violation to that person indicating the nature of the violation and ordering the action necessary to correct it, including, without limitation:
(1) 
The abatement of violations and the cessation of practices or operations in violation of this article or of the post-construction stormwater management plan;
(2) 
At the person's expense, compliance with BMPs required as a condition of approval of the new development, the repair of stormwater management facilities and/or the restoration of any affected property; and/or
(3) 
The payment of fines, of the Town's remediation costs and of the Town's reasonable administrative costs and attorney fees and costs.
B. 
If abatement of a violation, compliance with BMPs, repair of stormwater management facilities and/or restoration of affected property is required, the notice shall set forth a deadline within which such abatement, compliance, repair and/or restoration must be completed.
Any person who violates this article or the post-construction stormwater management plan shall be subject to fines, penalties and orders for injunctive relief and shall be responsible for the Town's attorney fees and costs, all in accordance with 30-A M.R.S.A. § 4452. Each day that such violation continues shall constitute a separate violation. Moreover, any person who violates this article or the post-construction stormwater management plan also shall be responsible for any and all fines, penalties, damages and costs, including but not limited to attorney fees and costs, incurred by the Town for violation of federal and state environmental laws and regulations caused by or related to that person's violation of this article or of the post-construction stormwater management plan; this responsibility shall be in addition to any penalties, fines or injunctive relief imposed under this article.
The enforcement authority may, with the approval of the municipal officers, enter into a written consent agreement with the violator to address timely abatement of the violation(s) of this article or of the post-construction stormwater management plan for the purposes of eliminating violations of this article or of the post-construction stormwater management plan and of recovering fines, costs and fees without court action.
A. 
Any person receiving a notice of violation or suspension notice may appeal the determination of the enforcement authority to the Board of Adjustment and Appeals in accordance with the provisions of  Chapter 315, Zoning, § 315-77D. The notice of appeal must be received within 30 days from the date of receipt of the notice of violation.
B. 
The Board of Adjustment and Appeals shall hold a de novo hearing on the appeal within 30 days from the date of receipt of the notice of appeal. The Board of Adjustment and Appeals may affirm, reverse or modify the decision of the enforcement authority. A party aggrieved by the decision of the Board of Adjustment and Appeals may appeal that decision to the Maine Superior Court within 45 days of the date of the Board of Adjustment and Appeals decision pursuant to Rule 80B of the Maine Rules of Civil Procedure.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
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 to the Board of Adjustment and Appeals, within 45 days of a decision of the Board of Adjustment and Appeals affirming or modifying the enforcement authority's decision, then the enforcement authority may recommend to the municipal officers that the Town's Attorney file an enforcement action in a Maine court of competent jurisdiction under Rule 80K of the Maine Rules of Civil Procedure.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
The Town of Cumberland enacts this article pursuant to 30-A M.R.S.A. § 3001 (municipal home rule ordinance authority), 38 M.R.S.A. § 413 (the Wastewater Discharge Law), 33 U.S.C. § 1251 et seq. (the Clean Water Act), and 40 CFR 122 [United States Environmental Protection Agency's regulations governing the National Pollutant Discharge Elimination System (NPDES)]. The Maine Department of Environmental Protection, through its promulgation of the general permit for the discharge of stormwater from small municipal separate storm sewer systems, has listed the Town of Cumberland as having a regulated small municipal separate storm sewer system ("small MS4"); under this general permit, listing as a regulated small MS4 necessitates enactment of this article as part of the Town's stormwater management program in order to satisfy the minimum control measures required by Part IV D 5 (Post-construction stormwater management in new development and redevelopment).