[HISTORY: Adopted by the Common Council of the City of Muskego
at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
Amendments noted where applicable.]
A.
This chapter is adopted under the authority granted by § 62.234,
Wis. Stats. This chapter supersedes all provisions of an ordinance
previously enacted under § 62.23, Wis. Stats., that relate
to construction site erosion control. Except as otherwise specified
in § 62.234, Wis. Stats., § 62.23, Wis. Stats.,
applies to this chapter and to any amendments to this chapter.
B.
The provisions of this chapter are deemed not to limit any other
lawful regulatory powers of the same governing body.
C.
The Council hereby designates the City Engineer to administer and
enforce the provisions of this chapter. The City Engineer may appoint
assistants (designees) to aid in the performance of his duties and
may seek technical advice as needed from the Waukesha County Department
of Environmental Resources, Land Conservation Division, and/or the
Wisconsin Department of Natural Resources (WDNR) as to adequacy of
any proposed plan and permit application submitted to him.
D.
The requirements of this chapter do not preempt more stringent erosion
and sediment control requirements that may be imposed by any of the
following:
(1)
Wisconsin Department of Natural Resources administrative rules, permits
or approvals, including those authorized under §§ 281.16
and 283.33, Wis. Stats.
(2)
Targeted nonagricultural performance standards promulgated in rules
by the Wisconsin Department of Natural Resources under § NR
151.004, Wis. Adm. Code.
The City of Muskego acknowledges that runoff from land disturbing
construction activity carries a significant amount of sediment and
other pollutants to the waters of the state in the City of Muskego.
It is the purpose of this chapter to maintain safe and healthful
conditions; prevent and control water pollution; prevent and control
soil erosion and sediment discharge; protect spawning grounds, fish
and aquatic life; control building sites, placement of structures
and land uses; preserve ground cover and scenic beauty; and promote
sound economic growth by minimizing the amount of sediment and other
pollutants carried by runoff or discharged from land disturbing construction
activity to waters of the state in the City of Muskego.
A.
Applicability.
(2)
This chapter does not apply to the following:
(a)
Transportation facilities, except transportation facility construction
projects that are part of a larger common plan of development, such
as local roads within a residential or industrial development.
(b)
A construction project that is exempted by federal statutes
or regulations from the requirement to have a national pollutant discharge
elimination system permit issued under 40 CFR 122 for land disturbing
construction activity.
(c)
Nonpoint discharges from agricultural facilities and practices.
(d)
Nonpoint discharges from silviculture activities.
(3)
Notwithstanding the applicability requirements in Subsection A(1), this chapter applies to construction sites of any size that, as determined by the City Engineer or his designee, are likely to result in runoff that exceeds the safe capacity of the existing drainage facilities or receiving body of water, that causes undue channel erosion, or that increases water pollution by scouring or transporting of particulate matter.
B.
Jurisdiction. This chapter applies to land disturbing construction
activities on lands within the boundaries and jurisdiction of the
City of Muskego.
C.
Exclusions. This chapter is not applicable to activities conducted
by a state agency, as defined under § 227.01(1), Wis. Stats.
As used in this chapter, the following terms shall have the
meanings indicated:
A governmental employee, or a regional planning commission
empowered under § 62.234, Wis. Stats., that is designated
by the Council to administer this chapter.
Has the meaning in § 281.16(1), Wis. Stats.
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.
A day the offices of the City of Muskego are routinely and
customarily open for business.
A court-issued order to halt land disturbing construction
activity that is being conducted without the required permit or in
violation of a permit issued by the City of Muskego.
An area upon which one or more land disturbing construction
activities occur, including areas that are part of a larger common
plan of development or sale where multiple separate and distinct land
disturbing construction activities may be taking place at different
times on different schedules but under one plan. A long-range planning
document that describes separate construction projects, such as a
twenty-year transportation improvement plan, is not a common plan
of development.
A hypothetical discrete rainstorm characterized by a specific
duration, temporal distribution, rainfall intensity, return frequency
and total depth of rainfall.
The creation from one parcel of two or more parcels or building
sites of 20 or fewer acres each in area where such creation occurs
at one time or through the successive partition within a five-year
period.
The process by which the land's surface is worn away
by the action of wind, water, ice or gravity.
A comprehensive plan developed to address pollution caused
by erosion and sedimentation of soil particles or rock fragments during
construction.
The unincorporated area within three miles of the corporate
limits of a first-, second-, or third-class city or within 1.5 miles
of a fourth-class city or village.
All land disturbing construction activities at the construction
site have been completed and a uniform, perennial, vegetative cover
has been established, with a density of at least 70% of the cover,
for the unpaved areas and areas not covered by permanent structures,
or employment of equivalent permanent stabilization measures.
City of Muskego Common Council.
Any man-made alteration of the land surface resulting in
a change in the topography or existing vegetative or nonvegetative
soil cover, that may result in runoff and lead to an increase in soil
erosion and movement of sediment into waters of the state. "Land disturbing
construction activity" includes clearing and grubbing, demolition,
excavating, pit trench dewatering, filling and grading activities.
Any person holding fee title, an easement or other interest
in property which allows the person to undertake cropping, livestock
management, land disturbing construction activity or maintenance of
stormwater BMPs on the property.
The highest level of performance that is achievable but is not equivalent to a performance standard identified in this chapter as determined in accordance with § 162-6 of this chapter.
A narrative or measurable number specifying the minimum acceptable
outcome for a facility or practice.
A written authorization made by the City of Muskego to the
applicant to conduct land disturbing construction activity or to discharge
post-construction runoff to waters of the state.
Has the meaning given in § 283.01(13), Wis. Stats.
Has the meaning given in § 281.01(10), Wis. Stats.
The landowner or any other entity performing services to
meet the requirements of this chapter through a contract or other
agreement.
Stormwater or precipitation including rain, snow or ice melt
or similar water that moves on the land surface via sheet or channelized
flow.
Settleable solid material that is transported by runoff,
suspended within runoff or deposited by runoff away from its original
location.
Activities including tree nursery operations, tree harvesting
operations, reforestation, tree thinning, prescribed burning, and
pest and fire control. Clearing and grubbing of an area of a construction
site is not a silviculture activity.
The entire area included in the legal description of the
land on which the land disturbing construction activity is proposed
in the permit application.
An order issued by the City of Muskego which requires that
all construction activity on the site be stopped.
A document that specifies design, predicted performance and
operation and maintenance specifications for a material, device or
method.
A highway, a railroad, a public mass transit facility, a
public use airport, a public trail or any other public work for transportation
purposes, such as harbor improvements under § 85.095(1)(b),
Wis. Stats. "Transportation facility" does not include building sites
for the construction of public buildings and buildings that are places
of employment that are regulated by the Department of Natural Resources
pursuant to § 281.33, Wis. Stats.
Includes those portions of Lake Michigan and Lake Superior
within the boundaries of this state, and 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 this state or its jurisdiction.
Maximum extent practicable applies when a person who is subject
to a performance standard of this chapter demonstrates to the City
Engineer's satisfaction that a performance standard is not achievable
and that a lower level of performance is appropriate. In making the
assertion that a performance standard is not achievable and that a
level of performance different from the performance standard is the
maximum extent practicable, the responsible party shall take into
account the best available technology, cost effectiveness, geographic
features, and other competing interests such as protection of public
safety and welfare, protection of endangered and threatened resources,
and preservation of historic properties.
All BMPs required for compliance with this chapter shall meet
design criteria, standards and specifications based on any of the
following:
A.
Design guidance and technical standards identified or developed by
the Wisconsin Department of Natural Resources under Subchapter V of
Ch. NR 151, Wis. Adm. Code.
B.
Soil loss prediction tools [such as the Universal Soil Loss Equation
(USLE)] when using an appropriate rainfall or runoff factor (also
referred to as the R factor) or an appropriate design storm and precipitation
distribution, and when considering the geographic location of the
site and the period of disturbance.
C.
Technical standards and methods approved by the City Engineer or
his designee.
A.
Responsible party. The responsible party shall comply with this section.
B.
Erosion and sediment control practices. Erosion and sediment control
practices at each site where land disturbing construction activity
is to occur shall be used to prevent or reduce all of the following:
(1)
The deposition of soil from being tracked onto streets by vehicles.
(2)
The discharge of sediment from disturbed areas into on-site stormwater
inlets.
(3)
The discharge of sediment from disturbed areas into adjacent waters
of the state.
(4)
The discharge of sediment from drainageways that flow off the site.
(5)
The discharge of sediment by dewatering activities.
(6)
The discharge of sediment eroding from soil stockpiles existing for
more than seven days.
(7)
The transport by runoff into waters of the state of chemicals, cement,
and other building compounds and materials on the construction site
during the construction period. However, projects that require the
placement of these materials in waters of the state, such as constructing
bridge footings or BMP installations, are not prohibited by this subsection.
C.
Location. The BMPs shall be located so that treatment occurs before
runoff enters waters of the state.
D.
Implementation. The BMPs used to comply with this section shall be
implemented as follows:
(1)
Erosion and sediment control practices shall be constructed or installed
before land disturbing construction activities begin.
(2)
Erosion and sediment control practices shall be maintained until
final stabilization.
(3)
Final stabilization activity shall commence when land disturbing
activities cease and final grade has been reached on any portion of
the site.
(4)
Temporary stabilization activity shall commence when land disturbing
activities have temporarily ceased and will not resume for a period
exceeding 14 calendar days.
(5)
Best management practices that are no longer necessary for erosion
and sediment control shall be removed by the responsible party.
A.
Responsible party. The responsible party shall comply with this section and implement the erosion and sediment control plan developed in accordance with § 162-11.
B.
Erosion and sediment control plan. A written site-specific erosion and sediment control plan shall be developed in accordance with § 162-11 of this chapter and implemented for each construction site.
C.
Erosion and other pollutant control requirements. The erosion and sediment control plan required under Subsection B shall include the following:
(1)
Erosion and sediment control practices. Erosion and sediment control
practices at each site where land disturbing construction activity
is to occur shall be used to prevent or reduce all of the following:
(a)
The deposition of soil from being tracked onto streets by vehicles.
(b)
The discharge of sediment from disturbed areas into on-site
stormwater inlets.
(c)
The discharge of sediment from disturbed areas into adjacent
waters of the state.
(d)
The discharge of sediment from drainageways that flow off the
site.
(e)
The discharge of sediment by dewatering activities.
(f)
The discharge of sediment eroding from soil stockpiles existing
for more than seven days.
(g)
The discharge of sediment from erosive flows at outlets and
in downstream channels.
(h)
The transport by runoff into waters of the state of chemicals,
cement, and other building compounds and materials on the construction
site during the construction period. However, projects that require
the placement of these materials in waters of the state, such as constructing
bridge footings or BMP installations, are not prohibited by this subsection.
(i)
The transport by runoff into waters of the state of untreated
wash water from vehicle and wheel washing.
(2)
Sediment performance standards. In addition to the erosion and sediment control practices under Subsection C(1), the following erosion and sediment control practices shall be employed:
(a)
Best management practices that, by design, discharge no more
than five tons per acre per year, or to the maximum extent practicable,
of the sediment load carried in runoff from initial grading to final
stabilization.
(b)
No person shall be required to employ more BMPs than are needed
to meet a performance standard in order to comply with maximum extent
practicable. Erosion and sediment control BMPs may be combined to
meet the requirements of this subsection. Credit may be given toward
meeting the sediment performance standard of this subsection for limiting
the duration or area, or both, of land disturbing construction activity,
or for other appropriate mechanisms.
(c)
Notwithstanding Subsection C(2)(a), if BMPs cannot be designed and implemented to meet the sediment performance standard, the erosion and sediment control plan shall include a written, site-specific explanation of why the sediment performance standard cannot be met and how the sediment load will be reduced to the maximum extent practicable.
(3)
Preventive measures. The erosion and sediment control plan shall
incorporate all of the following:
(a)
Maintenance of existing vegetation, especially adjacent to surface
waters whenever possible.
(b)
Minimization of soil compaction and preservation of topsoil.
(c)
Minimization of land disturbing construction activity on slopes
of 20% or more.
(d)
Development of spill prevention and response procedures.
(4)
Location. The BMPs used to comply with this section shall be located
so that treatment occurs before runoff enters waters of the state.
D.
Implementation. The BMPs used to comply with this section shall be
implemented as follows:
(1)
Erosion and sediment control practices shall be constructed or installed before land disturbing construction activities begin in accordance with the erosion and sediment control plan developed in Subsection B.
(2)
Erosion and sediment control practices shall be maintained until
final stabilization.
(3)
Final stabilization activity shall commence when land disturbing
activities cease and final grade has been reached on any portion of
the site.
(4)
Temporary stabilization activity shall commence when land disturbing
activities have temporarily ceased and will not resume for a period
exceeding 14 calendar days.
(5)
Best management practices that are no longer necessary for erosion
and sediment control shall be removed by the responsible party.
A.
Permit required. No responsible party may commence a land disturbing
construction activity subject to this chapter without receiving prior
approval of an erosion and sediment control plan for the site and
a permit from the City of Muskego.
B.
Permit application and fees. The responsible party that will undertake a land disturbing construction activity subject to this chapter shall submit an application for a permit and an erosion and sediment control plan that meets the requirements of § 162-11 and shall pay an application fee to the City of Muskego in the amount specified in § 162-12. By submitting an application, the applicant is authorizing the City Engineer or his designee to enter the site to obtain information required for the review of the erosion and sediment control plan.
C.
Permit application review and approval. The City Engineer or his
designee shall review any permit application that is submitted with
an erosion and sediment control plan and the required fee. The following
approval procedure shall be used:
(1)
Within 45 business days of the receipt of a complete permit application, as required by Subsection B, the City Engineer or his designee shall inform the applicant whether the application and erosion and sediment control plan are approved or disapproved based on the requirements of this chapter.
(2)
If the permit application and erosion and sediment control plan are
approved, the City Engineer or his designee shall issue the permit.
(3)
If the permit application or erosion and sediment control plan is
disapproved, the City Engineer or his designee shall state in writing
the reasons for disapproval.
(4)
The City Engineer or his designee may request additional information
from the applicant. If additional information is submitted, the City
Engineer or his designee shall have 10 business days from the date
the additional information is received to inform the applicant that
the erosion and sediment control plan is either approved or disapproved.
D.
Surety bond. As a condition of approval and issuance of the permit,
the City of Muskego may require the applicant to deposit a surety
bond or irrevocable letter of credit to guarantee a good faith execution
of the approved erosion and sediment control plan and any permit conditions.
E.
Permit requirements. All permits shall require the responsible party
to:
(1)
Provide written notice to the City Engineer or his designee within
48 hours of commencing any land disturbing construction activity.
(2)
Provide written notice to the City Engineer or his designee of completion
of any BMPs within 10 days after their installation.
(3)
Obtain permission in writing from the City Engineer or his designee prior to any modification pursuant to § 162-11C of the erosion and sediment control plan.
(4)
Install all BMPs as identified in the approved erosion and sediment
control plan.
(5)
Maintain all road drainage systems, stormwater drainage systems,
BMPs and other facilities identified in the erosion and sediment control
plan.
(6)
Repair any siltation or erosion damage to adjoining surfaces and
drainageways resulting from land disturbing construction activities
and document repairs in a site inspection log.
(7)
Inspect the BMPs within 24 hours after each rain of 0.5 inch or more
which results in runoff during active construction periods and at
least once each week, make needed repairs and install additional BMPs
as necessary, and document these activities in an inspection log that
also includes the date of inspection, the name of the person conducting
the inspection, and a description of the present phase of the construction
at the site.
(8)
Allow the City Engineer or his designee to enter the site for the
purpose of inspecting compliance with the erosion and sediment control
plan or for performing any work necessary to bring the site into compliance
with the erosion and sediment control plan and keep a copy of the
erosion and sediment control plan at the construction site.
G.
Permit duration. Permits issued under this section shall be valid
for a period of 365 days or the length of the building permit or other
construction authorizations, whichever is longer, from the date of
issuance. The City Engineer or his designee may grant one or more
extensions not to exceed 365 days cumulatively. The City Engineer
or his designee may require additional BMPs as a condition of an extension
if they are necessary to meet the requirements of this chapter.
H.
Maintenance. The responsible party throughout the duration of the
construction activities shall maintain all BMPs necessary to meet
the requirements of this chapter until the site has undergone final
stabilization.
A.
Erosion and sediment control plan statement. For each construction site identified under § 162-4A(3), an erosion and sediment control plan statement shall be prepared. This statement shall be submitted to the City Engineer or his designee. The erosion and sediment control plan statement shall briefly describe the site, the development schedule, and the BMPs that will be used to meet the requirements of this chapter. A site map shall also accompany the erosion and sediment control plan statement.
B.
Erosion and sediment control plan requirements.
(1)
An erosion and sediment control plan shall be prepared and submitted
to the City Engineer or his designee.
(3)
The erosion and sediment control plan shall address pollution caused
by soil erosion and sedimentation during construction and up to final
stabilization of the site. The erosion and sediment control plan shall
include, at a minimum, the following items:
(a)
Name(s) and address(es) of the owner or developer of the site,
and of any consulting firm retained by the applicant, together with
the name of the applicant's principal contact at such firm. The
application shall also include start and end dates for construction.
(b)
Description of the construction site and the nature of the land
disturbing construction activity, including representation of the
limits of land disturbance on a United States Geological Service 7.5-minute
series topographic map.
(c)
Description of the intended sequence of major land disturbing
construction activities for major portions of the construction site,
including stripping and clearing; rough grading; construction of utilities,
infrastructure, and buildings; and final grading and landscaping.
Sequencing shall identify the expected date on which clearing will
begin, the estimated duration of exposure of cleared areas, areas
of clearing, installation of temporary erosion and sediment control
measures, and establishment of permanent vegetation.
(d)
Estimates of the total area of the construction site and the
total area of the construction site that is expected to be disturbed
by land disturbing construction activities.
(e)
Calculations to show compliance with the performance standard in § 162-9C(2)(a).
(f)
Existing data describing the surface soil as well as subsoils.
(g)
Depth to groundwater, as indicated by Natural Resources Conservation
Service soil information where available.
(h)
Name of the immediate named receiving water from the United
States Geological Service 7.5 minute series topographic maps.
(4)
The erosion and sediment control plan shall include a site map. The
site map shall include the following items and shall be at a scale
not greater than 100 feet per inch and at a contour interval not to
exceed five feet:
(a)
Existing topography, vegetative cover, natural and engineered
drainage systems, roads and surface waters. Lakes, streams, wetlands,
channels, ditches and other watercourses on and immediately adjacent
to the site shall be shown. Any identified one-hundred-year floodplains,
flood-fringes and floodways shall also be shown.
(b)
Boundaries of the construction site.
(c)
Drainage patterns and approximate slopes anticipated after major
grading activities.
(d)
Areas of soil disturbance.
(e)
Location of major structural and nonstructural controls identified
in the erosion and sediment control plan.
(f)
Location of areas where stabilization BMPs will be employed.
(g)
Areas which will be vegetated following land disturbing construction
activities.
(h)
Area(s) and location(s) of wetland on the construction site,
and locations where stormwater is discharged to a surface water or
wetland within 1/4 mile downstream of the construction site.
(i)
Areas(s) used for infiltration of post-construction stormwater
runoff.
(j)
An alphanumeric or equivalent grid overlying the entire construction
site map.
(5)
Each erosion and sediment control plan shall include a description
of appropriate control BMPs that will be installed and maintained
at the construction site to prevent pollutants from reaching waters
of the state. The erosion and sediment control plan shall clearly
describe the appropriate erosion and sediment control BMPs for each
major land disturbing construction activity and the timing during
the period of land disturbing construction activity that the erosion
and sediment control BMPs will be implemented. The description of
erosion and sediment control BMPs shall include, when appropriate,
the following minimum requirements:
(a)
Description of interim and permanent stabilization practices,
including a BMP implementation schedule. The erosion and sediment
control plan shall ensure that existing vegetation is preserved where
attainable and that disturbed portions of the site are stabilized.
(b)
Description of structural practices to divert flow away from
exposed soils, store flows or otherwise limit runoff and the discharge
of pollutants from the site. Unless otherwise specifically approved
in writing by the City Engineer or his designee, structural measures
shall be installed on upland soils.
(c)
Management of overland flow at all areas of the construction
site, unless otherwise controlled by outfall controls.
(d)
Trapping of sediment in channelized flow.
(e)
Staging land disturbing construction activities to limit exposed
soil areas subject to erosion.
(f)
Protection of downslope drainage inlets where they occur.
(g)
Minimization of tracking at all vehicle and equipment entry
and exit locations of the construction site.
(h)
Clean up of off-site sediment deposits.
(i)
Proper disposal of building and waste material.
(j)
Stabilization of drainageways.
(k)
Installation of permanent stabilization practices as soon as
possible after final grading.
(l)
Minimization of dust to the maximum extent practicable.
(6)
The erosion and sediment control plan shall require that velocity
dissipation devices be placed at discharge locations and along the
length of any outfall channel as necessary to provide a nonerosive
flow from the structure to a watercourse so that the natural physical
and biological characteristics and functions are maintained and protected.
C.
Erosion and sediment control plan amendments. The applicant shall
amend the erosion and sediment control plan if any of the following
occur:
(1)
There is a change in design, construction, operation or maintenance
at the site which has the reasonable potential for the discharge of
pollutants to waters of the state and which has not otherwise been
addressed in the erosion and sediment control plan.
(2)
The actions required by the erosion and sediment control plan fail
to reduce the impacts of pollutants carried by construction site runoff.
(3)
The City Engineer or his designee notifies the applicant of changes
needed in the erosion and sediment control plan.
The fees referred to in other sections of this chapter shall
be established by the City of Muskego and may from time to time be
modified by resolution. A schedule of the fees established by the
City of Muskego shall be available for review in the City Hall, W182
S8200 Racine Avenue, Muskego, Wisconsin, 53150.
If land disturbing construction activities are occurring without
a permit required by this chapter, the City Engineer or his designee
may enter the land pursuant to the provisions of § 66.0119(1),
(2) and (3), Wis. Stats.
A.
The City Engineer or his designee may post a stop-work order if any
of the following occurs:
B.
If the responsible party does not cease activity as required in a
stop-work order posted under this section or fails to comply with
the erosion and sediment control plan or permit conditions, the City
Engineer or his designee may revoke the permit.
C.
If the responsible party, where no permit has been issued or the permit has been revoked, does not cease the activity after being notified by the City Engineer or his designee, or if a responsible party violates a stop-work order posted under Subsection A, the City Engineer or his designee may request the City Attorney to obtain a cease-and-desist order in any court with jurisdiction.
E.
After posting a stop-work order under Subsection A, the City Engineer or his designee may issue a notice of intent to the responsible party of his intent to perform work necessary to comply with this chapter. The City Engineer or his designee may go on the land and commence the work after issuing the notice of intent. The costs of the work performed under this subsection by the City Engineer or his designee, plus interest at the rate authorized by City of Muskego, 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 as a special assessment against the property.
F.
Any person violating any of the provisions of this chapter shall be subject to the general penalty provision of § 1-4 of the Muskego Municipal Code. Each day a violation exists shall constitute a separate offense.
G.
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.
A.
Zoning Board of Appeals. The Zoning Board of Appeals created pursuant to Chapter 400, Zoning, of the City of Muskego Municipal Code 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 City Engineer or his designee in administering this chapter. The Board shall also use the rules, procedures, duties, and powers authorized by statute in hearing and deciding appeals. Upon appeal, the Board may authorize variances from the provisions of this chapter that are not contrary to the public interest and where owing to special conditions a literal enforcement of this chapter will result in unnecessary hardship.
B.
Who may appeal. Appeals to the Zoning Board of Appeals may be taken
by any aggrieved person or by an officer, department, board, or bureau
of the City of Muskego affected by any decision of the City of Muskego.
