[HISTORY: Adopted by the City Council of the City of Westbrook as indicated in article histories. Amendments noted where applicable.]
[Adopted 4-5-2010 (Ch. 37 of the 2007 Code)]
The purpose of this "Post-Construction Stormwater Management Ordinance" (the "Ordinance") is to provide for the health, safety, and general welfare of the citizens of the City of Westbrook through monitoring and enforcement of compliance with post-construction stormwater management plans in order to comply with minimum control measures requirements of the federal Clean Water Act, of federal regulations and of Maine's Small Municipal Separate Storm Sewer Systems General Permit.
Editor's Note: See 33 U.S.C. § 1251 et seq.
This article establishes methods for post-construction stormwater management in order to comply with minimum control measures requirements of the federal Clean Water Act, of federal regulations and of Maine's Small Municipal Separate Storm Sewer Systems General Permit.
This article seeks to ensure that post-construction stormwater management plans are followed and stormwater management facilities are properly maintained and pose no threat to public safety.
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, clauses, sentences, or paragraphs or application of this article.
The City of Westbrook enacts this "Post-Construction Stormwater Management Control Ordinance" (the "Ordinance") pursuant to 30-A M.R.S.A. § 3001 (municipal home rule ordinance authority), 38 M.R.S.A. § 413 (the "Wastewater Discharge Law"), 33 U.S.C. § 1251 et seq. (the "Clean Water Act"), and 40 CFR Part 122 [U.S. Environmental Protection Agency's regulations governing the National Pollutant Discharge Elimination System ("NPDES")]. The Maine Department of Environmental Protection, through its promulgation of the "General Permit for the Discharge of Stormwater from Small Municipal Separate Storm Sewer Systems," has listed the City of Westbrook as having a regulated small municipal separate storm sewer system ("small MS4"); under this general permit, listing as a regulated small MS4 necessitates enactment of this article as part of the municipality's stormwater management program in order to satisfy the minimum control measures required by Part IV D 5 ("Post-construction stormwater management in new development and redevelopment").
For the purposes of this article, the terms listed below are defined as follows:
- A person with requisite right, title or interest or an agent for such person who has filed an application for new development or redevelopment that requires a post-construction stormwater management plan under this article.
- BEST MANAGEMENT PRACTICES (BMP)
- Schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of waters of the State. Best management practices also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.
- The City of Westbrook.
- CLEAN WATER ACT
- The federal Water Pollution Control Act (33 U.S.C. § 1251 et seq., also known as the "Clean Water Act"), and any subsequent amendments thereto.
- CONSTRUCTION ACTIVITY
- Construction activity, including one acre or more of disturbed area, or activity with less than one acre of total land area that is part of a subdivision, if the subdivision will ultimately disturb equal to or greater than one acre.
- Any spilling, leaking, pumping, pouring, emptying, dumping, disposing or other addition of pollutants to waters of the state. "Direct discharge" or "point source" means any 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 are or may be discharged.
- DISTURBED AREA
- Clearing, grading and excavation. Mere cutting of trees, without grubbing, stump removal, disturbance or exposure of soil is not considered disturbed area. Disturbed area does not include routine maintenance but does include redevelopment. "Routine maintenance" is maintenance performed to maintain the original line and grade, hydraulic capacity, and original purpose of land or improvements thereon.
- ENFORCEMENT AUTHORITY
- The City Engineer or his/her designee, the person(s) or department authorized by the City to administer and enforce this article.
- MUNICIPAL PERMITTING AUTHORITY
- The municipal official or body that has jurisdiction over the land use approval or permit required for a new development or redevelopment.
- MUNICIPAL SEPARATE STORM SEWER SYSTEM or MS4
- Conveyances for stormwater, including, but not limited to, roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, human-made channels or storm drains (other than publicly owned treatment works and combined sewers) owned or operated by any municipality, sewer or sewage district, fire district, state agency or federal agency or other public entity that discharges directly to surface waters of the state.
- NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) STORMWATER DISCHARGE PERMIT
- A permit issued by the EPA or by the DEP that authorizes the discharge of pollutants to waters of the United States, whether the permit is applicable on an individual, group, or general area-wide basis.
- NEW DEVELOPMENT
- Any construction activity on unimproved premises.
- Any individual, firm, corporation, municipality, quasi-municipal corporation, state agency or federal agency or other legal entity.
- Dredged spoil, solid waste, junk, incinerator residue, sewage, refuse, effluent, garbage, sewage sludge, munitions, chemicals, biological or radiological materials, oil, petroleum products or by-products, heat, wrecked or discarded equipment, rock, sand, dirt and industrial, municipal, domestic, commercial or agricultural wastes of any kind.
- POST-CONSTRUCTION STORMWATER MANAGEMENT PLAN
- Best management practices and stormwater management facilities employed by a new development or redevelopment to meet the stormwater standards of Chapter 335, Land Use, of the City Code and approved by the municipal permitting authority.
- Any building, lot, parcel of land, or portion of land, whether improved or unimproved, including adjacent sidewalks and parking strips, located within the municipality from which discharges into the storm drainage system are or may be created, initiated, originated or maintained.
- QUALIFIED POST-CONSTRUCTION STORMWATER INSPECTOR
- A person who conducts post-construction inspections of stormwater management facilities and meets the following qualifications:
- A. The inspector shall not have any ownership or financial interest in the property being inspected nor be an employee or partner of any entity having an ownership or financial interest in the property, and
- B. The inspector shall also meet the following or similar criteria as approved by the City Engineer, who shall maintain a list of approved qualified post-construction stormwater inspectors:
- (1) Have a working knowledge of Chapter 500, Stormwater Management Rules, and Maine's Stormwater BMP Manual;
- (2) Have a college degree in environmental science, civil engineering, or comparable expertise;
- (3) Have a demonstrated practical knowledge of stormwater hydrology and stormwater management techniques, including the maintenance requirements for stormwater management facilities; and
- (4) Have the ability to determine if stormwater facilities are performing as intended.
- Construction activity on premises already improved with buildings, structures or activities or uses, but does not include such activities as exterior remodeling.
- REGULATED SMALL MS4
- Any small MS4 regulated by the State of Maine "General Permit for the Discharge of Stormwater from Small Municipal Separate Storm Sewer Systems" dated June 3, 2003 ("General Permit"), including all those located partially or entirely within an urbanized area (UA) and those additional small MS4s located outside a UA that as of the issuance of the general permit have been designated by the DEP as regulated small MS4s.
- SMALL MUNICIPAL SEPARATE STORM SEWER SYSTEM or SMALL MS4
- Any MS4 that is not already covered by the Phase I MS4 stormwater program, including municipally owned or operated storm sewer systems, state or federally owned systems, such as colleges, universities, prisons, Maine Department of Transportation and Maine Turnpike Authority road systems and facilities, and military bases and facilities.
- STORM DRAINAGE SYSTEM
- The City's regulated small MS4.
- Any stormwater runoff, snowmelt runoff, and surface runoff and drainage; "stormwater" has the same meaning as "storm water."
- STORMWATER MANAGEMENT FACILITIES
- Any parking areas, catch basins, drainage swales, detention basins and ponds, pipes and related structures that are part of the post-construction stormwater management plan for a new development or redevelopment.
- URBANIZED AREA (UA)
- The areas of the State of Maine so defined by the latest decennial census by the U.S. Bureau of the Census.
This article applies to all new development and redevelopment with a disturbance greater than one acre within the City that discharges stormwater to the City's municipal storm sewer system (MS4) and to associated stormwater management facilities.
Exception. This article does not apply to new development or redevelopment on a lot, tract or parcel where that lot, tract or parcel is part of a subdivision that is approved under this article. Said lot, tract or parcel shall not require separate review under this article, but shall comply with the post-construction stormwater management plan requirements for that approved subdivision.
Notwithstanding any ordinance provision to the contrary, and except as provided in § 278-6B above, no applicant for a building permit, subdivision approval, site plan approval or other zoning, planning or other land use approval for new development or redevelopment to which this article is applicable shall receive such permit or approval for that new development or redevelopment unless the applicant also receives approval under Chapter 335, Land Use, of the City Code for its post-construction stormwater management plan and stormwater management facilities for that new development or redevelopment, even if Chapter 335, Land Use, would not otherwise apply to that new development or redevelopment.
At the time of application for a building permit, subdivision approval, site plan approval or other zoning, planning or other land use approval for new development or redevelopment to which this article is applicable, the applicant shall notify the municipal permitting authority if its post-construction stormwater management plan includes any BMP(s) that will discharge to the municipality's MS4 and shall include in this notification a listing of which BMP(s) will so discharge.
Any person owning, leasing or having control over stormwater management facilities required by a post-construction stormwater management plan approved under Chapter 335, Land Use, shall demonstrate compliance with that plan as follows.
That person or a qualified post-construction stormwater inspector hired by that person shall, at least annually, inspect, clean and maintain the stormwater management facilities, including but not limited to any parking areas, catch basins, drainage swales, detention basins and ponds, pipes and related structures, in accordance with all municipal and state inspection, cleaning and maintenance requirements of the approved post-construction stormwater management plan.
If the stormwater management facilities require maintenance to function as intended by the approved post-construction stormwater management plan, that person shall take corrective action(s) to address the deficiency(ies).
That person shall employ a qualified post-construction stormwater inspector to provide, on or by March 1 of each year, a completed and signed certification to the enforcement authority, in a form identical to that provided by the City Engineer, certifying that the person has inspected, cleaned and maintained the stormwater management facilities, describing any deficiencies found during inspection of the stormwater management facilities and certifying that the person has repaired any deficiencies in the stormwater management facilities noted during the annual inspection. In addition, any persons required to file an annual certification under this section shall include with the annual certification payment in the amount listed in Chapter A400, Master Fee Schedule, to pay the administrative and technical costs of review of the annual certification.
In order to determine compliance with this article, the enforcement authority may enter upon property at reasonable hours to inspect the stormwater management facilities.
Beginning July 1, 2010, and each year thereafter, the City shall include the following in its annual report to the Maine Department of Environmental Protection:
The cumulative number of sites that have stormwater management facilities discharging into its MS4;
A summary of the number of sites that have stormwater management facilities discharging into its MS4 that were reported to the City;
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
The number of sites with documented functioning stormwater management facilities; and
The number of sites that required routine maintenance or remedial action to ensure that stormwater management facilities are functioning as intended.
It shall be unlawful for any person to violate any provision of or to fail to comply with any of the requirements of this article or of the post-construction stormwater management plan. Whenever the enforcement authority believes that a person has violated this article or the post-construction stormwater management plan, the enforcement authority may enforce this article in accordance with 30-A M.R.S.A. § 4452.
Whenever the enforcement authority believes that a person has violated this article or the post-construction stormwater management plan, the enforcement authority may order compliance with this article or with the post-construction stormwater management plan by written notice of violation to that person indicating the nature of the violation and ordering the action necessary to correct it, including, without limitation:
The abatement of violations, and the cessation of practices, or operations in violation of this article or of the post-construction stormwater management plan;
At the person's expense, compliance with BMPs required as a condition of approval of the new development or redevelopment, the repair of stormwater management facilities and/or the restoration of any affected property; and/or
The payment of fines, of the municipality's remediation costs and of the municipality's reasonable administrative costs and attorneys' fees and costs. If abatement of a violation, compliance with BMPs, repair of stormwater management facilities and/or restoration of affected property is required, the notice shall set forth a deadline within which such abatement, compliance, repair and/or restoration must be completed.
Any person who violates this article or the post-construction stormwater management plan shall be subject to fines, penalties and orders for injunctive relief and shall be responsible for the municipality's attorneys' fees and costs, all in accordance with 30-A M.R.S.A. § 4452. Each day such violation continues shall constitute a separate violation. Moreover, any person who violates this article or the post-construction stormwater management plan also shall be responsible for any and all fines, penalties, damages and costs, including but not limited to attorneys' fees and costs, incurred by the municipality for violation of federal and state environmental laws and regulations caused by or related to that person's violation of this article or of the post-construction stormwater management plan; this responsibility shall be in addition to any penalties, fines or injunctive relief imposed under this section.
The enforcement authority may, with the approval of the municipal officers, enter into a written consent agreement with the violator to address timely abatement of the violation(s) of this article or of the post-construction stormwater management plan for the purposes of eliminating violations of this article or of the post-construction stormwater management plan and of recovering fines, costs and fees without court action.
Any person receiving a notice of violation or suspension notice may appeal the determination of the enforcement authority to the Zoning Board of Appeals in accordance with § 335-15.3 of Chapter 335, Land Use. The notice of appeal must be received within 30 days from the date of receipt of the notice of violation. The Board of Appeals shall hold a de novo hearing on the appeal within 30 days from the date of receipt of the notice of appeal. The Board of Appeals may affirm, reverse or modify the decision of the enforcement authority. A party aggrieved by the decision of the Board of Appeals may appeal that decision to the Maine Superior Court within 45 days of the date of the Board of Appeals decision pursuant to Rule 80B of the Maine Rules of Civil Procedure.
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 to the Board of Appeals, within 45 days of a decision of the Board of Appeals affirming the enforcement authority's decision, then the enforcement authority may recommend to the municipal officers that the municipality's attorney file an enforcement action in a Maine court of competent jurisdiction under Rule 80K of the Maine Rules of Civil Procedure.