[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:
To regulate the contribution of pollutants into waters of the state or the MS4 by stormwater discharges by any user.
To prohibit illicit connections and discharges into waters of the state or the MS4.
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:
- AUTHORIZED ENFORCEMENT AGENCY
- Employees or designees of the Director of Public Works.
- BEST MANAGEMENT PRACTICES (BMPS)
- 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.
- CLEAN WATER ACT
- The federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), and any subsequent amendments thereto.
- CONSTRUCTION ACTIVITY
- Activities subject to the City of Burlington construction permits per Construction Site Erosion Control Zoning Ordinance or WPDES construction permits per Ch. NR 216, Wis. Adm. Code, and Ch. 283, Wis. Stats.
- CONTAMINATED STORMWATER
- 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.
- DEPARTMENT (WDNR)
- The Wisconsin Department of Natural Resources.
- As defined in Ch. 283, Wis. Stats., when used without qualification includes a discharge of any pollutant.
- DISCHARGE OF POLLUTANT or DISCHARGE OF POLLUTANTS
- As defined in Ch. 283, Wis. Stats., means any addition of any pollutant to the waters of this state from any point source.
- HAZARDOUS MATERIALS
- 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.
- ILLICIT CONNECTIONS
- An illicit connection is defined as either of the following:
- A. 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
- B. 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.
- ILLICIT DISCHARGE
- 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.
- INDUSTRIAL ACTIVITY
- Activities subject to WPDES Industrial Permits per Ch. NR 216, Wis. Adm. Code, and Ch. 283, Wis. Stats.
- MAXIMUM EXTENT PRACTICABLE (MEP)
- 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.
- MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4)
- 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.
- NONSTORMWATER DISCHARGE
- 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.
- POINT SOURCE
- 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.
- POLLUTION PREVENTION
- 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.
- STORMWATER MANAGEMENT PLAN/STORMWATER POLLUTION PREVENTION PLAN
- 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.
- WATERS OF THE STATE
- 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.
- WISCONSIN POLLUTANT DISCHARGE ELIMINATION SYSTEM (WPDES) STORMWATER DISCHARGE PERMIT
- 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.
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.
The commencement, conduct or continuance of any illegal discharge to the storm drain system is prohibited except as described as follows:
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.
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.
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.
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.
Prohibition of illicit connections.
The construction, use, maintenance or continued existence of illicit connections to waters of the state or the MS4 is prohibited.
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.
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.
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.
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.
Submission of NOI to City of Burlington.
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.
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.
The copy of the notice of intent may be delivered to the City of Burlington either in person or by mailing it to:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Failure to provide notification of a release as provided above is a violation of this chapter.
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.
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.
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.
Notice of violation.
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.
The notice of violation shall contain:
The name and address of the alleged violator;
The address when available or a description of the building, structure or land upon which the violation is occurring, or has occurred;
A statement specifying the nature of the violation;
A description of the remedial measures necessary to restore compliance with this chapter and a time schedule for the completion of such remedial action;
A statement of the penalty or penalties that shall or may be assessed against the person to whom the notice of violation is directed;
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
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.
Such notice may require without limitation:
The performance of monitoring, analyses, and reporting;
The elimination of illicit connections or discharges;
That violating discharges, practices, or operations shall cease and desist;
The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property;
Payment of a fine to cover administrative and remediation costs;
The implementation of BMPs;
Suspension of MS4 access.
Emergency cease-and-desist orders.
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:
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.
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.
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.
Suspension due to the detection of illicit discharge.
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.
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.
Prosecution and penalties.
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.
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.
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.:
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.
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.
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.
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.
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.