[Adopted 7-13-2020 by Ord. No. 200713-1[1]]
[1]
Editor's Note: This article derives from Ch. 34 of the former Municipal Code, adopted 12-17-2007.
The purpose of this article is to provide for the health, safety, environment and general welfare of the citizens of the Village of Fox Crossing 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 article establishes methods for controlling the introduction of pollutants into waters of the state or the MS4 in order to comply with requirements of the Wisconsin Pollutant Discharge Elimination System (WPDES) permit process. The objectives of this article are:
A. 
To regulate the contribution of pollutants into waters of the state or the MS4 by stormwater discharges by any user.
B. 
To prohibit illicit connections and discharges into waters of the state or the MS4.
C. 
To establish legal authority to carry out all inspection, surveillance, monitoring, and enforcement procedures necessary to ensure compliance with this article.
For the purposes of this article, the following terms shall have the meanings indicated:
AUTHORIZED ENFORCEMENT AGENCY
Employees or designees of the Department of Community Development of the Village of Fox Crossing.
AUTHORIZED INSPECTION AGENCY
Employees or designees of the Department of Community Development, Street Department, and Fox Crossing Utilities.
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.
CONSTRUCTION ACTIVITY
Activities subject to Village of Fox Crossing construction permits per Articles I and II of this chapter 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, by-products or industrial machinery in the source areas listed in Ch. NR 216, Wis. Adm. Code.
DEPARTMENT (DNR)
The Wisconsin Department of Natural Resources.
DISCHARGE
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., 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 CONNECTION
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 a 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 Department of Community Development 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, 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:
A. 
Owned or operated by a municipality.
B. 
Designed or used for collecting or conveying stormwater.
C. 
Which is not a combined sewer conveying both sanitary and storm water.
D. 
Which is not part of a publicly owned wastewater treatment works that provides secondary or more stringent treatment.
MUNICIPALITY
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.
OUTFALL
The point at which stormwater is discharged to waters of the state or to a storm sewer.
OWNER
Any person holding fee title, an easement or other interest in property.
PERSON
An individual, owner, operator, corporation, partnership, association, municipality, interstate agency, state agency or federal agency.
POLLUTANT
As defined in Ch. 283, 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.
POLLUTION
As defined in Ch. 283, Wis. Stats., 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.
PREMISES
Any building, lot, parcel of land, or portion of land, whether improved or unimproved, including adjacent sidewalks and parking strips.
STORMWATER
Runoff from precipitation including rain, snow, ice melt or similar water that moves on the land surface via sheet or channelized flow.
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.
WASTEWATER
Any water or other liquid, other than uncontaminated stormwater, discharged from a facility.
WATERCOURSE
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 Winnebago County, all channels identified on the 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., those portions of Lake Michigan and Lake Superior within the boundaries of Wisconsin 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 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 pursuant to Ch. 283, Wis. Stats.
This article shall apply to all water and discharges entering waters of the state or the MS4 generated on any lands unless explicitly exempted by the Department of Community Development.
The Department of Community Development shall administer, implement, and enforce the provisions of this article. Any powers granted or duties imposed upon the Department of Community Development may be delegated in writing by the Director of the Department of Community Development to persons or entities acting in the beneficial interest of or in the employ of the agency.
This article is not intended to modify or repeal any other ordinance, rule, regulation, or other provision of law. The requirements of this article are in addition to the requirements of any other ordinance, rule, regulation, or other provision of law, and where any provision of this article 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 article are hereby declared to be severable. If any provision, clause, sentence, or paragraph of this article 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 article.
The standards set forth herein and promulgated pursuant to this article are minimum standards; therefore this article does not intend or imply that compliance by any person will ensure that there will be no contamination, pollution, or unauthorized discharge of pollutants.
A. 
Prohibition of illicit discharges. No person shall throw, dump, spill, drain, or otherwise discharge, cause, or allow others under its control to throw, dump, spill, drain, or otherwise discharge into waters of the state or the MS4 any pollutants or waters containing any pollutants, other than stormwater.
B. 
Allowed discharges. The following discharges are allowed:
(1) 
Waterline 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 Department of Community Development as a significant source of pollutants to waters of the state.
(2) 
Discharges or flow from firefighting and other discharges specified in writing by the Department of Community Development as being necessary to protect public health and safety.
(3) 
Discharges associated with dye testing; however, this activity requires a verbal notification to the Department of Community Development and the Department of Natural Resources a minimum of one business day prior to the time of the test.
(4) 
Any nonstormwater discharges permitted under a construction activity permit, industrial activity permit, or WPDES permit shall comply with all provisions of such permit. Proof of compliance with said permit may be required in a form acceptable to the Department of Community Development prior to allowing discharges to waters of the state or the MS4.
C. 
Prohibition of illicit connections.
(1) 
The construction, use, maintenance or continued existence of illicit connections to waters of the state or the MS4 is prohibited.
(2) 
This prohibition expressly includes, without limitation, illicit connections made in the past, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection.
(3) 
A person is considered to be in violation of this article if the person connects a line conveying sewage to waters of the state or the MS4 or allows such a connection to continue.
(4) 
Improper connections in violation of this article must be disconnected and redirected, if necessary, to an approved on-site wastewater management system or the sanitary sewer system upon approval of the Department of Community Development.
(5) 
Any drain or conveyance that has not been documented in plans, maps or equivalent, and which may be connected to waters of the state or the MS4, shall be located by the owner or occupant of that property upon receipt of written notice of violation from the Department of Community Development 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 Department of Community Development.
Every person owning property through which a watercourse passes, or such person's lessee, shall keep and maintain that part of the watercourse within the property free of soil erosion, trash, debris, and other obstacles that would pollute, contaminate, or significantly retard the flow of water through the watercourse. In addition, the owner or lessee shall maintain existing privately owned structures within or adjacent to a watercourse so that such structures will not become a hazard to the use, function, or physical integrity of the watercourse.
A. 
Right of entry; inspecting and sampling. The Department of Community Development, the Street Department, and Fox Crossing Utilities, herein referred to as the authorized inspection agency, shall be permitted to enter and inspect properties and facilities subject to regulation under this article as often as may be necessary to determine compliance with this article.
(1) 
If a property or facility has security measures in force which require proper identification and clearance before entry into its premises, the owner or operator shall make the necessary arrangements to allow access to representatives of the authorized inspection agency.
(2) 
Facility owners and operators shall allow the authorized inspection agency ready access to all parts of the premises for the purposes of inspection, sampling, examination and copying of records.
(3) 
The authorized inspection agency shall have the right to set up on any property or facility such devices as are necessary in the opinion of the authorized inspection agency to conduct monitoring and/or sampling of the facility's stormwater discharge.
(4) 
The authorized inspection agency has the right to require the owner or operator to install monitoring equipment as necessary and make the monitoring data available to the authorized inspection agency. The facility's sampling and monitoring equipment shall be maintained at all times in a safe and proper operating condition by the discharger at its own expense. All devices used to measure stormwater flow and quality shall be calibrated to ensure their accuracy.
(5) 
Any temporary or permanent obstruction to safe and easy access to the property or facility to be inspected and/or sampled shall be promptly removed by the owner or operator at the written or oral request of the authorized inspection agency and shall not be replaced. The costs of clearing such access shall be borne by the owner or operator.
(6) 
Unreasonable delay in allowing the authorized inspection agency access to a facility is a violation of this article. A person who is the operator of a facility commits an offense if the person denies the authorized inspection agency reasonable access to the facility for the purpose of conducting any activity authorized or required by this article.
B. 
Special inspection warrant. If the authorized inspection agency has been refused access to any part of the premises from which stormwater is discharged, and the authorized inspection agency is able to demonstrate probable cause to believe that there may be a violation of this article, 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 article or any order issued hereunder, or to protect the overall public health, safety, environment and welfare of the community, then the authorized inspection agency 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 its 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 premises 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 article.
A. 
Notwithstanding other requirements of law, as soon as any person responsible for a facility or operation or responsible for emergency response for a facility or operation has information of any known or suspected release of materials which are resulting or may result in illicit discharges or pollutants discharging into stormwater, the MS4, or waters of the state, said person shall take all necessary steps to ensure the discovery, containment, and cleanup of such release, so as to minimize the impacts of the discharge.
B. 
In the event of such a release of hazardous materials said person shall immediately notify emergency response agencies of the occurrence via emergency dispatch services and shall also notify the Department of Community Development. In the event of a release of nonhazardous materials, said person shall notify the Department of Community Development in person or by phone 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 Department of Community Development within three business days of the phone notice. If the discharge of prohibited materials emanates from a commercial or industrial establishment, the owner or operator of such establishment shall also retain an on-site written record of the discharge and the actions taken to prevent its recurrence. Such records shall be retained for at least five years.
C. 
Failure to provide notification of a release as provided above is a violation of this article.
A. 
Violations.
(1) 
It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this article. Any person who has violated or continues to violate the provisions of this article may be subject to the enforcement actions outlined in this section or a violation may be restrained by injunction or otherwise abated in a manner provided by law.
(2) 
In the event the violation constitutes an immediate danger to public health or public safety, the Department of Community Development 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 Department of Community Development is authorized to seek costs of the abatement as outlined in § 400-47.
B. 
Warning notice. When the Department of Community Development finds that any person has violated, or continues to violate, any provision of this article, or any order issued hereunder, the Department of Community Development may serve upon that person a verbal or written warning notice, specifying the particular 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 Department of Community Development to take action, including emergency action or any other enforcement action, without first issuing a warning notice.
C. 
Notice of violation.
(1) 
Whenever the Department of Community Development finds that a person has violated a prohibition or failed to meet a requirement of this article, the Department of Community Development may order compliance by written notice of violation to the responsible person.
(2) 
The notice of violation shall contain:
(a) 
The name and address of the alleged violator;
(b) 
The address when available or a description of the building, structure or land upon which the violation is occurring, or has occurred;
(c) 
A statement specifying the nature of the violation;
(d) 
A description of the remedial measures necessary to restore compliance with this article and a time schedule for the completion of such remedial action;
(e) 
A statement of the penalty or penalties that shall or may be assessed against the person to whom the notice of violation is directed;
(f) 
A statement that the determination of violation may be appealed to the Department of Community Development by filing a written notice of appeal within three business days of service of notice of violation; and
(g) 
A statement specifying that, should the violator fail to restore compliance within the established time schedule, representatives of the Department of Community Development may issue a notice of intent to the responsible party of its intent to perform work necessary to comply with this article. The Department of Community Development may go on the land and commence the work after issuing the notice of intent. The Department of Community Development is authorized to seek costs of the abatement as outlined in § 400-47.
(3) 
Such notice may require without limitation:
(a) 
The performance of monitoring, analyses, and reporting;
(b) 
The elimination of illicit connections or discharges;
(c) 
That violating discharges, practices, or operations shall cease and desist;
(d) 
The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property;
(e) 
Payment of a fine to cover administrative and remediation costs; and
(f) 
The implementation of BMPs.
D. 
Suspension of MS4 access.
(1) 
Emergency cease-and-desist orders.
(a) 
When the Department of Community Development finds that any person has violated, or continues to violate, any provision of this article, 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 Department of Community Development may issue an order to the violator directing it immediately to cease and desist all such violations and directing the violator to:
[1] 
Immediately comply with all ordinance requirements; and
[2] 
Take such appropriate preventive action as may be needed to properly address a continuing or threatened violation, including immediately halting operations and/or terminating the discharge.
(b) 
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 Department of Community Development 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 Department of Community Development may allow the person to recommence its discharge when it has demonstrated to the satisfaction of the Department of Community Development that the period of endangerment has passed, unless further termination proceedings are initiated against the discharger under this article. 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 Department of Community Development within 30 days of receipt of the emergency order. Issuance of an emergency order shall not be a bar against, or a prerequisite for, taking any other action against the violator.
(2) 
Suspension due to illicit discharges in emergency situations. The Department of Community Development 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 Department of Community Development 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.
(3) 
Suspension due to the detection of illicit discharge.
(a) 
Any person discharging to the MS4 in violation of this article may have its MS4 access terminated if such termination would abate or reduce an illicit discharge. The Department of Community Development will notify a violator of the proposed termination of its MS4 access.
(b) 
A person commits an offense if the person reinstates MS4 access to premises terminated pursuant to this section without the prior approval of the Department of Community Development.
E. 
Prosecution and penalties.
(1) 
Any person violating any provision of this article shall be subject to a forfeiture as set forth in Chapter A450, Fines and Penalties, of the Municipal Code, reference this Code section for each violation. Each day a violation exists shall constitute a separate offense.
(2) 
Compliance with the provisions of this article 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 injunction proceedings.
A. 
The Village Board of the Village of Fox Crossing:
(1) 
Shall hear and decide appeals where it is alleged that there is error in any order, decision or determination made by the Department of Community Development in administering this article except for cease-and-desist orders obtained under § 400-44D(1);
(2) 
Upon appeal, may authorize variances from the provisions of this article which are not contrary to the public interest and where owing to special conditions a literal enforcement of the provisions of this article will result in unnecessary hardship; and
(3) 
Shall use rules, procedures, duties and powers authorized by statute in hearing and deciding appeals and authorizing variances.
B. 
Who may appeal. Appeals to the Village Board of the Village of Fox Crossing may be taken by any aggrieved person or by any office, department, board, or bureau of the Village of Fox Crossing affected by any decision of the Department of Community Development.
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 Department of Community Development, then representatives of the authorized inspection agency may issue a notice of intent to the responsible party of its intent to perform work necessary to comply with this article. The authorized inspection agency may go on the land and commence the work after issuing the notice of intent. The Department of Community Development is authorized to seek costs of abatement as outlined in § 400-47. 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.
The costs of the work performed by the authorized inspection agency or Department of Community Development pursuant to this article, plus interest at the rate authorized by the authorized inspection agency or Department of Community Development, shall be billed to the responsible party. In the event a responsible party fails to pay the amount due, the Director of Finance shall enter the amount due on the tax rolls and collect as a special assessment against the property pursuant to Subchapter VII of Ch. 66, Wis. Stats.
A. 
The remedies listed in this article are not exclusive of any other remedies available under any applicable federal, state or local law and it is within the discretion of the Department of Community Development to seek cumulative remedies.
B. 
The Department of Community Development or authorized inspection agency may recover all attorneys' fees, court costs and other expenses associated with enforcement of this article, including sampling and monitoring expenses.
This article shall be effective on January 1, 2008, after adoption by the Village Board of the Village of Fox Crossing and publication or posting as provided by law. Amendments hereto shall be made only after notice and public hearing.