[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)]
A.Â
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,[1] of federal regulations and of Maine's Small Municipal
Separate Storm Sewer Systems General Permit.
[1]
Editor's Note: See 33 U.S.C. § 1251 et seq.
B.Â
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.
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.
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, 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.
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.
The City Engineer or his/her designee, the person(s) or department
authorized by the City to administer and enforce this article.
The municipal official or body that has jurisdiction over
the land use approval or permit required for a new development or
redevelopment.
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.
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.
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.
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.
A person who conducts post-construction inspections of stormwater
management facilities and meets the following qualifications:
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
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:
Have a working knowledge of Chapter 500, Stormwater Management
Rules, and Maine's Stormwater BMP Manual;
Have a college degree in environmental science, civil engineering,
or comparable expertise;
Have a demonstrated practical knowledge of stormwater hydrology
and stormwater management techniques, including the maintenance requirements
for stormwater management facilities; and
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.
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.
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.
The City's regulated small MS4.
Any stormwater runoff, snowmelt runoff, and surface runoff
and drainage; "stormwater" has the same meaning as "storm water."
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.
The areas of the State of Maine so defined by the latest
decennial census by the U.S. Bureau of the Census.
A.Â
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.
B.Â
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.
A.Â
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.
B.Â
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).
C.Â
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:
A.Â
The cumulative number of sites that have stormwater management facilities
discharging into its MS4;
B.Â
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)]
C.Â
The number of sites with documented functioning stormwater management
facilities; and
D.Â
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:
A.Â
The abatement of violations, and the cessation of practices, or operations
in violation of this article or of the post-construction stormwater
management plan;
B.Â
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
C.Â
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.
