City of Lebanon, NH Chapter 124 Public Stormwater System, Use of

[HISTORY: Adopted by the City Council of the City of Lebanon 7-15-2020 by Ord. No. 2020-07; effective 7-15-2020.[1] Amendments noted where applicable.]

[1] Editor's Note: This ordinance also repealed former Ch. 124, Use of Public Stormwater System, adopted 4-2-2014 by Ord. No. 2014-1, effective 4-17-2014.

§ 124-1 Purpose; statutory authority.

A. The purpose of this chapter is to provide for the health, safety and general welfare of the citizens of the City through the regulation of discharges into the City's stormwater drainage system to the maximum extent practicable as required by federal and state law. This chapter controls connections and discharges into the City's separate storm drainage system in order to comply with the requirement of the National Pollutant Discharge Elimination System permit process, in conformity with the City's "Illicit Discharge Detection and Elimination Plan" (November 2011).

B. This chapter is adopted pursuant to RSA 149-I:6, RSA Ch. 147, and RSA 47:17; 40 CFR Part 122; and 33 U.S.C. § 1251.

§ 124-2 Interpretation; definitions.

A. This chapter and terms used herein shall, to the greatest possible extent, be interpreted in a manner consistent with the Clean Water Act, 33 U.S.C. § 1251 et seq., and with state and federal regulations adopted thereunder, as well as with the City's other ordinances, including but not limited to Chapter 136, Sewer Service. The requirements of this chapter are in addition to those of other federal, state or local laws, and are not a substitute therefor.

B. In addition, the following terms and phrases shall have the following meanings.

DIRECTOR OF PUBLIC WORKS

The Director of Public Works of the Department of Public Works of the City of Lebanon, New Hampshire, who is charged with certain duties and responsibilities by this chapter, or a duly authorized representative.

DISCHARGE

Dispose, deposit, spill, pour, inject, seep, dump, leak or place by any means, including any direct or indirect entry, any solid or liquid matter into the storm drainage system, or in a location where it can reasonably be anticipated to flow into or enter the storm drainage system; or alternatively, the solid or liquid matter which is so disposed, deposited, spilled, poured, injected, seeped, dumped, leaked or placed into the storm drainage system.

FOUNDATION DRAIN

An exterior drainage system installed on the outer face of the foundation wall and near the wall footing, typically covered with a layer of gravel, serving the purpose of draining out excess water from seeping into the foundation. Interior building sump pumps are not covered under this definition.

ILLICIT CONNECTION

Any drain or means of conveyance, whether on the surface or subsurface, which causes or allows an illegal discharge to enter the storm drainage system, including but not limited to any connections to the storm drainage system from indoor drains and sinks, regardless of whether said drain or connection had been allowed, permitted or approved prior to the effective date of the permit system in § 124-4; or any drain or conveyance from a commercial or industrial land use to the storm drainage system which has not been approved by an authorized enforcement agency, and documented in plans, maps, or equivalent records.

INDOOR DRAIN

Any inlet, floor drain, catch basin, dry well, stone reservoir, sump pump, groundwater collection, stormwater collection or discharge system, and/or French drain that is physically located, in whole or in part, within a building structure.

PERSON

Any individual, partnership, co-partnership, firm, company, corporation, association, joint stock company, trust, estate, governmental entity or any other legal entity; or their legal representatives, agents or assigns. This definition includes all federal, state and local governmental entities.

POLLUTANT

Anything which causes or contributes to pollution, including but not limited to paints, varnishes, solvents, oil and other automotive fluids, nonhazardous liquid and solid wastes, yard wastes; refuse, rubbish, garbage, litter or other abandoned or discarded objects and accumulations, floatables, pesticides, herbicides, fertilizers, hazardous substances and wastes, sewage, fecal coliform and pathogens, dissolved and particulate metals, animal wastes, construction wastes and residues, and noxious or offensive matter of any kind.

PREMISES

Any building, lot, parcel of land, parking areas or portion of land, whether improved or unimproved, including adjacent sidewalks and parking strips, located within the City from which discharges into the Storm Drainage System are or may be created, initiated, originated or maintained.

STORMWATER

Surface flow, runoff, and drainage consisting entirely of water from any form of natural precipitation and resulting from such precipitation.

STORMWATER CONNECTION

Any activity on property - including but not limited to alterations of terrain, alterations of surface permeability via construction or otherwise, or installation of any pipe, culvert, ditch, channel and other drainage structure or means of conveyance, whether surface or subsurface - which causes, or has the potential to cause, any new stormwater discharge, or any increase or alteration in stormwater discharge, into any portion of the City of Lebanon Stormwater Drainage System.

STORMWATER CONNECTION PERMIT

Permit issued by the City Manager for connection to the City's stormwater drainage system for the purposes of discharging stormwater.

STORMWATER DRAINAGE SYSTEM or SEPARATE STORM SEWER SYSTEM

Publicly owned facilities, or any portion thereof, by which stormwater is meant to be collected and/or conveyed, including but not limited to any roads with drainage systems, municipal streets, gutters, curbs, culverts, inlets, piped storm drains, pumping facilities, retention and detention basins, natural and human-made or altered ditches, channels, reservoirs, and other drainage structures. The privately owned and maintained service pipe extending from the Premises to the municipally maintained main pipe, culvert, manhole or other device in the public right of way shall not be considered part of the Storm Drainage System.

STORMWATER EXTENSION

Any stormwater connection (as defined above) which includes or involves any new or altered length, width, location or capacity of any publicly-owned or publicly-controlled element of the City's stormwater drainage system, or the conveyance or dedication to the City of any easement or other interest pertaining thereto.

§ 124-3 Discharges and connections prohibited.

A. No person shall discharge, as defined in § 124-2 above, or cause to be discharged into any portion of the City's stormwater drainage system, also as defined below, any solid or liquid material of any kind, including but not limited to pollutants or waters containing any pollutants, other than water that consists entirely of stormwater, except when a stormwater connection permit is issued; provided, however, that discharges of water from the following sources or under the following conditions are permitted:

(1) Discharges resulting from landscape irrigation or lawn watering;

(2) Natural riparian habitat or wetland flows, or infiltration to storm drains from groundwater or springs;

(3) Diversion of nonpolluted natural stream flows or rising groundwater;

(4) Unpolluted groundwater including unpolluted water from foundation drains;

(5) The flushing of drinking waterlines or other potable water sources;

(6) Air-conditioning condensation;

(7) Noncommercial washing of vehicles;

(8) Discharge from swimming pools, but only if non-chlorinated (defined as less than one PPM chlorine);

(9) Hydrant flushing and firefighting activities;

(10) Discharges which are permitted, in advance and in writing, by the Director of Public Works as being necessary to protect public health and safety as detailed in Subsection C below;

(11) Dye testing, if permitted in advance, either verbally or in writing, by the Director of Public Works; and

(12) Discharges permitted under a National Pollutant Discharge and Elimination System ("NPDES") permit, waiver, or waste discharge order, issued to the discharger and administered under the authority of the Federal Environmental Protection Agency, provided that the discharger is in full compliance with all requirements of the permit, waiver, order, or other applicable laws and regulations, and has obtained written advance permission from the Lebanon Director of Public Works.

B. The construction, use, maintenance or continued existence of any illicit connection, as defined in § 124-2 above, to the storm drainage system is prohibited. This prohibition expressly includes, without limitation, illicit connections made prior to the effective date of § 124-2, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection.

C. Residential stormwater connections which discharge from indoor drains into the City's stormwater drainage system or sanitary sewer system, and which existed prior to the effective date of the permit system in § 124-4, may be permitted at the discretion of the City Manager if the following standards are met, and if the permit is otherwise consistent with the purposes of this chapter. Applicants seeking authorization for approval of existing presently unpermitted stormwater connections or those removing indoor drains from the sanitary sewer system with the intent of connecting into the stormwater drainage system will not be required to satisfy the capacity analysis provisions of § 124-4A(5), as long as all of the following standards are met:

(1) The amount of impermeable surface will not be increased on the property resulting in increased stormwater flow.

(2) The applicant will be required to construct adequate berms, sumps or other measures in such a way as to reduce the risks of contaminants in or on the structure from entering the stormwater drainage system.

(3) The applicant shall be required to demonstrate that all facilities such as oil tanks or other structures are adequately secured such that they do not become buoyant and present a risk of spill and resultant discharge of contaminants into the indoor drain which is connected to the stormwater drainage system.

(4) Connections to the stormwater drainage system shall be equipped with backflow prevention devices such as in-line check valves to protect the property from backflow from the stormwater drainage system.

§ 124-4 Stormwater connections and extensions.

A. Stormwater permit. There is, as established by the Code of the City of Lebanon, Chapter 68, a stormwater connection permit application fee for all users of the City of Lebanon stormwater drainage system. The fee shall be waived for all stormwater connections which are disconnecting an existing stormwater connection, including all indoor drains, from the sanitary sewer system. This application fee herein shall apply to all persons whose premises stormwater enters the public stormwater drainage system of the City of Lebanon, subject to the exceptions detailed in § 124-3A above.

(1) Each connection shall be separately assessed to the owner(s) of land being benefited thereby regardless of whether that land has more than one connection to the City's public stormwater drainage system. The application fee set forth herein is a one-time charge to offset the administrative costs of the application process.

(2) Application fees shall be paid upon submission of application for a stormwater connection permit. This fee is non-refundable regardless of whether a stormwater connection permit is issued or not.

(3) No person shall connect to the stormwater drainage system unless the City has issued a permit for such connection.

(4) Any person seeking such a permit to connect to the stormwater drainage system (the applicant) shall make application on a form furnished by the City. The permit application shall be supplemented by any plans, specifications, engineering studies or other information considered pertinent in the judgment of the Director of Public Works. Such supplemental information will be supplied at the applicant's cost.

(5) The Director of Public Works shall review the service data to determine whether it has sufficient capacity to provide stormwater drainage service to the applicant.

(a) The applicant shall have the burden of presenting sufficient information, based on such engineering data as deemed necessary by the Director of Public Works, to demonstrate the following:

[Amended 9-7-2022 by Ord. No. 2022-03]

[1] Sufficient measures will be implemented to control the post-development peak rate runoff so that it does not exceed pre-development runoff. The drainage analysis should be practical for the site, fiscally responsible, and shall include calculations comparing pre- and post-development stormwater runoff rates (cubic feet/second) and volumes (cubic feet) for the two-, twenty-five-, fifty-year and one-hundred year twenty-four-hour storm events.

[2] To the extent that on-site control measures are insufficient at keeping the postdevelopment peak flow rate at or below the existing peak flow rate, a stormwater study will be required to show that, at a minimum, all affected elements of the City's Stormwater system have sufficient capacity for such discharges. In such cases, the applicant shall be permitted to discharge a peak flowrate for the twenty-five-year storm frequency amount not to exceed 50% of the remaining capacity of the receiving stormwater system. Culverts and storm sewers shall be able to pass the one-hundred-year twenty-four-hour storm event without overtopping and roadway ditches shall be required to pass the twenty-five year twenty four hour storm event without overtopping. In either case the applicant shall be responsible for all costs incurred by the City in making a determination of sufficient capacity except as outlined above in § 124-3C.

[3] Every applicant shall provide for stormwater management as required by these Regulations, unless a waiver is granted pursuant to this section. Waiver requests shall be submitted in writing to the Director of Public Works, who may waive the minimum requirements for stormwater management in whole or in part, provided that the following conditions apply:

[a] The granting of the waiver will not be detrimental to the public safety, health, or welfare or injurious to other property;

[b] The conditions upon which the request for a waiver is based are unique to the property for which the waiver is sought and are not applicable generally to other property;

[c] Because of the particular physical surroundings, shape or topographical conditions of the specific property involved, a particular hardship to implement a particular BMP (Best Management Practice) to the owner would result, as distinguished from a mere inconvenience, if the strict letter of these regulations are carried out;

[d] The granting of the waiver will not be contrary to the spirit and intent of the regulations; and,

[e] The waiver will not, in any manner, vary the provisions of the Zoning Ordinance[1] or Master Plan.

[1] Editor's Note: The Zoning Ordinance is on file in the office of the City Clerk.

(b) If the Director of Public Works determines that the City's stormwater drainage system does not or will not have sufficient capacity to serve, he/she shall not be obligated to provide the service. The City Manager may, at his/her option and discretion, enter into such agreements with applicant to make readiness to serve improvements at the applicant's expense.

(c) If the City Manager determines, based on input from the Director of Public Works that there is sufficient capacity to provide adequate service, the City Manager may approve the service.

[Amended 9-7-2022 by Ord. No. 2022-03]

(d) Service shall not be provided until all required deposits or payments have been made by the applicant.

(6) All costs and expenses incident to the installation and connection to the stormwater drainage system shall be borne by the applicant. The applicant shall indemnify the City from any loss or damage that may directly or indirectly be occasioned by the installation of the connection to the stormwater drainage system.

(7) The method of connection to the stormwater drainage system shall be acceptable to the Director of Public Works and shall conform to the requirements of all applicable building and plumbing codes, Public Works Department specifications or to other applicable rules and regulations.

(8) The applicant shall notify the Director of Public Works when the connection to the stormwater drainage system is ready for inspection and connection to the stormwater drainage system. The connection shall be made under the supervision of the Director of Public Works or his/her designee. No back-filling shall occur prior to inspection.

(9) All excavations for connections to the stormwater drainage system shall be adequately guarded with barricades and lights and so as to protect the public from hazard. Streets, sidewalks, parkways and other public property disturbed in the course of the work shall be restored in a manner satisfactory to the City. Prior to any excavating on any public property, an excavation permit must be obtained from the Department of Public Works. This provision does not relieve any person from any applicable state or federal laws or regulations relating to excavation.

(10) Connection to the stormwater drainage system is at the person's own risk.

(11) Any person connected to the stormwater drainage system shall be responsible for the ownership and maintenance of the stormwater conveyance extending from the premises to the stormwater drainage system and all equipment and devices as approved by the permit.

B. Stormwater extensions. Extensions of the stormwater drainage system within the City of Lebanon shall require the approval of the City Manager. All extensions of the stormwater drainage system shall, in addition, require the issuance of a stormwater connection permit in accordance with this chapter.

(1) Upon a request by a property owner or a developer(s) for the extension of the stormwater drainage system the City Manager shall make a determination upon the request and shall base his/her decision upon:

(a) Technical feasibility to include the system's capacity.

(b) Fiscal consequences.

(c) Environmental consequences.

(d) Whether or not the requestor shall pay for all costs relating to the extension.

(2) All requests for extensions of the stormwater drainage system as proposed by a developer shall require an extension agreement between the City and the developer containing the following:

(a) The developer shall pay the full cost of design and construction of the extension in accordance with City standards and requirements. All plans for the design of the extension shall be submitted to the City Engineer or such other person as designated by the Public Works Director, for written approval. Any cost incurred by the City in reviewing the design shall be paid for by the developer.

(b) The developer shall pay to the City, prior to any construction, an amount estimated by the City to pay for independent engineering inspection services hired by the City. The applicant shall keep a minimum $2,500 balance in escrow. If the City spends less than the amount paid by the developer, the balance shall be refunded to the developer. If the City spends more than the payment made by the developer, the developer shall reimburse the City. The City's review of the construction documents and inspection during the period of construction and inspection prior to acceptance shall not bar or preclude, in any way, the rights of the City to assert claims against the developer for defects in construction.

(3) The developer shall provide indemnification to the City for any costs, damages or other expenses arising from review or construction of the extension.

(4) If any portion of the proposed extension is not within a City highway, the developer shall acquire and convey to the City, as a condition of acceptance of the extension, adequate rights-of-way in compliance with the City's requirements and in conformity with the requirements of the City as to the form of the deed, a title opinion, monuments and a recordable plan.

(5) After the extension has been substantially completed, as certified by the City Engineer or other such person as designated by the Director of Public Works, the developer shall be responsible to repair and maintain the extension for a period of one year or until such time as the City's acceptance of the extension improvements is complete.

(6) After the expiration of the one-year period for maintenance, the City Manager shall determine whether or not to issue a certification that the extension has been constructed and installed in accordance with the plans, specifications and standards of the City. The City Manager may require a report of a professional engineer, hired by the City and paid for by the developer.

(7) It shall be a condition of the extension agreement and any City acceptance that the developer shall be responsible for any latent defects discovered within eight years from the date of substantial completion, as set forth in RSA 508:4-b, including all defects in design, materials or workmanship, and shall be liable to the City, upon written notice by the City, for the cost of repairs or replacements of all defective improvements. In the event that the developer conveys and transfers the project for which the extension was granted, the subsequent owner shall be responsible for the obligations of the developer for the remainder of the eight-year period regardless of whether or not such obligation is expressly assumed.

(8) No additional connections to the extension will be allowed for any other property owners requesting service for a period of 10 years from the date of acceptance of the extension by the City unless such property owner(s) agree to pay to the developer a pro rata share of the cost relating to the extension as determined by the City Manager. The developer shall provide a copy of the contract documents for the construction of the extension to the City prior to undertaking any construction for review and approval by the City to ensure that the requirements of the extension agreement have been met. The developer shall include in any construction documents that the proposed extension is intended to be transferred to the City for ownership and maintenance. The City Manager shall determine the pro rata share of cost to new applicants seeking connection to the extension based on the following criteria:

(a) The depreciated value of the extension infrastructure paid for by the developer at the time the new applicant utilizes the extension.

(b) The percentage of the extension at the point at which the new connector accesses the connection; in essence, how much of the new extension is the connecting applicant utilizing. In addition, any security or bond obtained by the contractor constructing and installing the extension for the benefit of the developer shall remain in effect until the expiration of a two-year period from the date the project is accepted by the City and shall be for the benefit of the City.

(9) Upon compliance with all the conditions set forth herein, the developer may request and the City Manager shall accept the transfer of the extension, including the stormwater drainage conveyances and rights-of-way to the City to become part of the City stormwater drainage system and the responsibility of the City thereafter.

§ 124-5 Authority to investigate.

A. Right of entry on all property. The Director of Public Works and other duly authorized employees of the City bearing proper credentials and identification shall be permitted to enter all properties for the purposes of inspection, observation, measurement, sampling and testing pertinent to discharge to the stormwater drainage system in accordance with the provisions of this chapter, and shall have authority to investigate potential violations of this chapter. Before entering any property for such purpose, the Director of Public Works or his/her agent shall first seek the consent of the owner of the property, or other party with a legal right to control access. In the event such consent is withheld or cannot be obtained within a reasonable period of time, the Director of Public Works shall have the authority to seek an administrative inspection warrant pursuant to RSA Ch. 595-B; provided, however, that an application for a connection or extension permit under this chapter shall be presumed to grant permission to City personnel to enter the property for all purposes pertaining to that permit application.

B. Liability. While performing the necessary work on private properties referred to in Subsection A, Rights of entry on all property, above, the Director of Public Works or duly authorized employees of the City shall observe all safety rules applicable to the premises established by the user, and the user shall be held harmless by the City for injury or death to the City employees, and the City shall indemnify the user against loss or damage to its property by City employees and against liability claims and demands for personal injury or property damage asserted against the user and growing out of the gauging and sampling operation, except as such may be caused by negligence or failure of the user to maintain safe conditions, right of entry for inspection and sampling, of this chapter.

C. Right of entry on private property; easements. The Director of Public Works and other duly authorized employees of the City bearing proper credentials and identification shall be permitted to enter all private properties through which the City holds an easement for the purposes of, but not limited to, inspection, observation, measurement, sampling, repair and maintenance of any portion of the stormwater facilities lying within said easement. All entry and subsequent work, if any, on said easement, shall be done in full accordance with the terms of the easement.

§ 124-6 Enforcement powers.

A. In the event the Director of Public Works determines that a property is in violation of this chapter, the Director may issue a written notice of violation by certified mail to the property owner; provided, however, that nothing herein shall prevent the City, in emergency circumstances where the delay entailed by the notice process could result in a danger to health, safety or the environment, from commencing an enforcement action without such a notice of violation. Any such notice of violation shall:

(1) Specify the actions or conditions that constitute the violation;

(2) Identify any action required to be taken in order to correct the violation(s);

(3) Establish a reasonable time frame for remedying the violation;

(4) Notify the owner of record of the City's right to commence an enforcement action, which may include a request for fines, civil penalties, and/or injunctive relief.

B. As an alternative to a notice of violation under Subsection A above, the Director of Public Works may, in cases involving a potential danger to public health, request the City's Health Officer to issue an order under RSA Ch. 147, which may include provision for the abatement of the violation by the City, and collection of the City's abatement and other costs, using the procedures set forth in RSA 147:7-a and RSA 147:7-b.

§ 124-7 Penalties.

A. The City may enforce the provisions of this Chapter by means of legal action, seeking any or all remedies and penalties consistent with state law, including but not limited to fines of up to $1,000 pursuant to RSA 47:17, civil penalties of up to $10,000 per day of violation pursuant to RSA 149-I:6, and/or injunctive relief. In any legal action brought by the City to enforce this chapter, the City shall be entitled to recover its costs and reasonable attorney fees expended in connection with any such enforcement action if found to be a prevailing party.

B. Assessment of repair charges. Any person who causes a discharge which obstructs, damages or otherwise impairs the stormwater drainage system may be assessed a charge by the City for the work required to repair or clean the affected facilities.

C. False statements and inaccurate information. Any person who knowingly makes any false statements, representation, record, reports, plan or other document filed with the City or who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required under this chapter shall be punished by a civil penalty of not more than $10,000.

D. Malicious injury; penalty. In accordance with RSA 149-I:23, any person(s) who shall wantonly or maliciously (purposely or knowingly) injure any part of any stormwater drainage system, conveyance, and discharge system, or sewage disposal plant shall be liable for pay treble damages to the owner thereof, and shall be guilty of a misdemeanor if a natural person, or a felony if any other person.