[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:
Employees or designees of the Department of Community Development
of the Village of Fox Crossing.
Employees or designees of the Department of Community Development,
Street Department, and Fox Crossing Utilities.
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.
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.
The Wisconsin Department of Natural Resources.
As defined in Ch. 283, Wis. Stats., when used without qualification
includes a discharge of any pollutant.
As defined in Ch. 283, Wis. Stats., any addition of any pollutant
to the waters of this state from any point source.
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.
Either of the following:
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
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.
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.
Activities subject to WPDES industrial permits per Ch. NR
216, Wis. Adm. Code, and Ch. 283, Wis. Stats.
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.
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:
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.
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.
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.
As defined in Ch. 283, Wis. Stats., any man-made or man-induced
alteration of the chemical, physical, biological or radiological integrity
of water.
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.
Runoff from precipitation including rain, snow, ice melt
or similar water that moves on the land surface via sheet or channelized
flow.
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 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.
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.
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:
(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.
Any condition in violation of any of the provisions of this
article and declared and deemed a nuisance may be summarily abated
or restored at the violator's expense.
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.
