[HISTORY: Adopted by the Special Town Meeting
of the Town of Fairhaven 5-4-2019 by Art. 12. Amendments noted where applicable.]
This chapter is adopted under authority granted by the Home
Rule Amendment of the Massachusetts Constitution, the Home Rule statutes,
and pursuant to the regulations of the Federal Clean Water Act found
at 40 CFR 122.34.
A.Â
The purpose of this chapter is to provide for the public health,
safety, and general welfare of the residents of the Town of Fairhaven,
the protection of Fairhaven's water bodies and groundwater, and the
protection of Fairhaven's natural resources through the regulation
of nonstormwater discharges to the storm drainage system to the maximum
extent practicable as required by federal and state law. This chapter
establishes methods for controlling the introduction of pollutants
into the municipal separate storm sewer system (MS4) in order to comply
with requirements of the National Pollutant Discharge Elimination
System (NPDES) permit process.
B.Â
Increased and contaminated stormwater runoff associated with developed
land uses and the accompanying increase in impervious surface are
major causes of impairment of water quality and flow in lakes, ponds,
streams, rivers, wetlands, and groundwater. The harmful impacts of
illicit discharge, soil erosion, and sedimentation are:
(1)Â
Impairment of water quality and flow in lakes, ponds, streams, rivers,
wetlands, groundwater, and drinking water supplies;
(2)Â
Contamination of drinking water supplies;
(3)Â
Erosion of stream channels and downstream coastal areas;
(4)Â
Alteration or destruction of aquatic and wildlife habitat;
(5)Â
Flooding;
(6)Â
Overloading or clogging of municipal stormwater management systems.
C.Â
The objectives of this chapter are to:
(1)Â
Regulate the contribution of pollutants to the municipal separate
storm sewer system (MS4) by stormwater discharges by any user;
(2)Â
Prohibit illicit connections and unauthorized discharges to the municipal
separate storm sewer system and require their removal;
(3)Â
Protect water resources;
(4)Â
Require practices that eliminate soil erosion and sedimentation;
(5)Â
Control the volume and rate of stormwater runoff resulting from land-disturbance
activities in order to minimize potential impacts of flooding;
(6)Â
Require practices to manage and treat stormwater runoff generated
from new development and redevelopment;
(7)Â
Establish minimum construction and post-construction stormwater management
standards and design criteria for the regulation and control of stormwater
runoff quantity and quality;
(8)Â
Protect groundwater and surface water from degradation;
(9)Â
Promote infiltration and the recharge of groundwater;
(10)Â
Maximize recharge of groundwater in the Fairhaven Aquifer Protection
District.
(11)Â
Prevent pollutants from entering the Town's municipal separate
storm sewer system (MS4) and reduce or eliminate pollutants entering
the Town's MS4 from existing users;
(12)Â
Ensure that soil erosion and sedimentation control measures
and stormwater runoff management practices are incorporated into the
site planning and design process and are implemented and maintained;
(13)Â
Ensure adequate long-term operation and maintenance of structural
stormwater best management practices;
(14)Â
Require practices to control waste such as discarded building
materials, concrete truck washout, chemicals, litter, and sanitary
waste at construction sites that may cause adverse impacts to water
quality;
(15)Â
Comply with state and federal statutes and regulations relating
to stormwater discharges, including total maximum daily load requirements;
(16)Â
Establish the Town of Fairhaven's legal authority to ensure
compliance with the provisions of this chapter through inspection,
monitoring and enforcement; and
For the purposes of this chapter, the following shall mean:
The owner(s) of land abutting the lot or lots on which activity
regulated by this chapter is occurring or proposed.
The normal maintenance or improvement of land in agricultural
or aquaculture use, as defined by the Massachusetts Wetlands Protection
Act and its implementing regulations.
Any activity on an area of land that changes the water quality,
or the force, quantity, direction, timing or location of runoff flowing
from the area. Such changes include: change from distributed runoff
to confined, discrete discharge; change in the volume of runoff from
the area; change in the peak rate of runoff from the area; and change
in the recharge to groundwater on the area.
Any "person" as defined below requesting a soil erosion and
sediment control permit for proposed land-disturbance activity or
a permit relating to or involving stormwater management.
An activity, procedure, restraint, or structural improvement
that helps to reduce the quantity of or improve the quality of stormwater
runoff; schedules of activities, prohibitions of practices, general
good housekeeping practices, pollution prevention and educational
practices, maintenance procedures, and other management practices
to prevent or reduce the discharge of pollutants directly or indirectly
to stormwater, receiving waters, or stormwater conveyance systems.
BMPs also include treatment practices, operating procedures, and practices
to control site runoff, spillage or leaks, sludge or water disposal,
or drainage from raw materials storage.
The Board of Public Works for the Town of Fairhaven and its
employees, agents or others designated by that Board to enforce this
chapter.
The Federal Water Pollution Control Act (33 U.S.C. § 1251
et seq.), and any subsequent amendments thereto.
Any activity that removes the vegetative surface cover. Clearing
activities generally include grubbing activity as defined below.
The erection or placement of a building or other structure,
or the placement of any impervious surface, in or on the ground, or
site preparation for such activities, including, but not limited to,
activities subject to NPDES construction permits as laid out in the
eligibility conditions of the permit.
Excess or discarded building or site materials, including
but not limited to concrete truck washout, chemicals, litter and sanitary
waste at a construction site that may adversely impact water quality.
The modification of land to accommodate a new use or expansion
of use, usually involving construction.
The addition from any source of any pollutant or combination
of pollutants into the municipal storm drain system or into the waters
of the United States or commonwealth from any source.
Any action, including clearing and grubbing, that causes
a change in the position, location, or arrangement of soil, sand,
rock, gravel, or similar earth material.
A registered professional engineer or other trained professional
selected by the Conservation Commission and retained by the holder
of a minor land-disturbance permit or a full land-disturbance permit
to periodically inspect the work and report to the Conservation Commission
and/or Planning Board.
The wearing away of the land surface by natural or artificial
forces such as wind, water, ice, gravity, or vehicle traffic and the
subsequent detachment and transportation of soil particles.
A document containing narrative, drawings and details developed
by a registered professional engineer (PE), registered professional
land surveyor (PLS), or a certified professional in erosion and sedimentation
control (CPESC) which includes best management practices, or equivalent
measures designed to control surface runoff, erosion and sedimentation
during pre-construction- and construction-related land-disturbance
activities.
The prevention or reduction of the movement of soil particles
or rock fragments due to stormwater runoff.
Habitats delineated for state-protected rare wildlife and
certified vernal pools for use with the Wetlands Protection Act regulations
(310 CMR 10.00) and the Forest Cutting Practices Act regulations (302
CMR 16.00).
A local and temporary inundation or rise in the surface of
a body of water, such that it covers land not usually under water.
Changing the level or shape of the ground surface.
Water beneath the surface of the ground.
The act of clearing land surface by digging or grinding up
roots and stumps.
Any material, including any substance, waste, or combination
thereof, which because of its quantity, concentration, or physical,
chemical, corrosive, flammable, reactive, toxic, radioactive, or infectious
characteristics, either separately or in combination with any substance
or substances, may cause, or significantly contribute to, a substantial
present or potential hazard to human health, safety, welfare, property,
or the environment when improperly treated, stored, transported, disposed
of, or otherwise managed. Toxic or hazardous materials include any
synthetic organic chemical, petroleum product, heavy metal, radioactive
or infectious waste, acid and alkali, and any substance defined as
"toxic" or "hazardous" under MGL c. 21C and MGL c. 21E, and the regulations
at 310 CMR 30.000 and 310 CMR 40.0000.
Any direct or indirect nonstormwater discharge to the storm
drain system, except as exempted in this chapter.
An illicit connection is defined as either of the following:
any drain or conveyance, whether on the surface or subsurface, which
allows an illegal or illicit discharge into the municipal storm drain
system, including but not limited to any conveyances which allow any
nonstormwater discharge, including sewage, process wastewater, and
wash water to enter the storm drain system and any connections to
the storm drain system from indoor drains, sinks or toilets, regardless
of whether said drain or connection had been previously allowed, permitted,
or approved by an authorized enforcement agency before the effective
date of this chapter, or any drain or conveyance connected from a
commercial or industrial land use to the storm drain system which
has not been documented in plans, maps, or equivalent records and
approved by an authorized enforcement agency.
Direct or indirect discharge to the municipal storm drain
system or a watercourse or the waters of the commonwealth that is
not composed entirely of stormwater, except for projects exempted
by this chapter or by regulations issued thereunder. The term does
not include a discharge in compliance with an NPDES stormwater discharge
permit or resulting from firefighting activities.
Any material or structure on or above the ground that prevents
water infiltrating the underlying soil. Impervious surface includes
without limitation roads, paved parking lots, sidewalks, and rooftops.
A stormwater pond created by either constructing an embankment
or excavating a pit which retains a permanent pool of water.
Activities subject to NPDES industrial permits as defined
in 40 CFR 122.26(b)(14).
The act of conveying surface water into the ground to permit
groundwater recharge and the reduction of stormwater runoff from a
project site.
Any activity, including without limitation: clearing, grubbing,
grading, digging, cutting, excavation of soil, placement of fill,
and construction that causes a change in the position or location
of soil, sand, rock, gravel, or similar earth material.
The maximum concentration or mass of a pollutant which can
be discharged to a waterway from nonpoint sources without causing
a violation of surface water quality standards as established in an
applicable total maximum daily load (TMDL).
A single parcel of land held in identical ownership throughout
and defined by metes, bounds, or boundary lines in a recorded deed
or on a recorded plan.
MGL c. 131A and its implementing regulations at 321 CMR 10.00
which prohibit the "taking" of any rare plant or animal species listed
as endangered, threatened, or of special concern.
The policy issued by the Department of Environmental Protection,
as amended, that coordinates the requirements prescribed by state
regulations promulgated under the authority of the Massachusetts Wetlands
Protection Act, MGL c. 131 § 40 and the Massachusetts Clean
Waters Act, MGL c. 21, §§ 23 through 56. The policy
addresses stormwater impacts through implementation of performance
standards to reduce or prevent pollutants from reaching water bodies
and control the quantity of runoff from a site.
The system of conveyances designed or used for collecting
or conveying stormwater, including any road with a drainage system,
street, gutter, curb, inlet, piped storm drain, pumping facility,
retention or detention basin, natural or human-made or -altered drainage
channel, reservoir, and other drainage structure that together comprise
the storm drainage system owned or operated by the Town of Fairhaven.
A permit issued by the United States Environmental Protection
Agency or jointly with the Commonwealth of Massachusetts that authorizes
the discharge of pollutants to waters of the United States.
Discharge to the municipal storm drain system not composed
entirely of stormwater.
A plan describing the functional, financial and organizational
mechanisms for the ongoing operation and maintenance of a stormwater
management system to ensure that it continues to function as designed.
The point at which stormwater flows out from a discernible,
confined point source or discrete conveyance into waters of the commonwealth.
Waters designated by the Massachusetts Department of Environmental
Protection as ORWs. These waters have exceptional sociologic, recreational,
ecological and/or aesthetic values and are subject to more stringent
requirements under both the Massachusetts Surface Water Quality Standards
(314 CMR 4.00) and the Massachusetts Stormwater Management Standards
set forth in the Massachusetts Stormwater Management Policy. ORWs
include vernal pools certified by the Natural Heritage Program of
the Massachusetts Department of Fisheries and Wildlife and Environmental
Law Enforcement, all Class A designated public water supplies with
their bordering vegetated wetlands, and other waters specifically
designated.
A person with a legal or equitable interest in property.
The person who holds a land-disturbance permit and therefore
bears the responsibilities and enjoys the privileges conferred thereby.
An individual, partnership, association, firm, company, trust,
corporation, agency, authority, department or political subdivision
of the commonwealth or the federal government, to the extent permitted
by law, and any officer, employee, or agent of such person.
Any discernible, confined, and discrete means of conveyance,
including, but not limited to, any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, or container from which pollutants are or
may be discharged.
Any element or property of sewage, agricultural, industrial
or commercial waste, runoff, leachate, heated effluent, or other matter,
whether originating at a point or nonpoint source, that is considered
toxic or detrimental to humans or the environment and is or may be
introduced into the municipal storm drain system or any sewage treatment
works, or into any water, watercourse or waters of the commonwealth.
Pollutants shall include without limitation:
Paints, varnishes, and solvents;
Oil and other automotive fluids;
Nonhazardous liquid and solid wastes and yard wastes;
Refuse, rubbish, garbage, litter, or other discarded or abandoned
objects, ordnance, accumulations, and floatables;
Pesticides, herbicides, and fertilizers;
Hazardous materials and wastes;
Sewage, fecal coliform, and pathogens;
Dissolved and particulate metals;
Animal wastes;
Rock; sand; salt; soils;
Construction wastes and residues; and
Noxious or offensive matter of any kind.
All activity in preparation for construction.
Any building, lot, parcel of land, or portion of land, whether
improved or unimproved, including adjacent sidewalks and parking strips.
Habitats delineated for rare plant and animal populations
protected pursuant to the Massachusetts Endangered Species Act[1] and its regulations.
Water which, during manufacturing or processing, comes into
direct contact with or results from the production or use of any material,
intermediate product, finished product, or waste product.
The process by which groundwater is replenished by precipitation
through the percolation of runoff and surface water through the soil.
Development, rehabilitation, expansion, demolition or phased
projects that disturb the ground surface, including impervious surfaces,
on previously developed sites. The creation of new areas of impervious
surface or new areas of land disturbance on a site constitutes development,
not redevelopment, even where such activities are part of a common
plan which also involves redevelopment. Redevelopment includes maintenance
and improvement of existing roadways, including widening less than
a single lane, adding shoulders, correcting substandard intersections,
improving existing drainage systems and repaving; and remedial projects
specifically designed to provide improved stormwater management, such
as projects to separate storm drains and sanitary sewers and stormwater
retrofit projects.
Owners, persons with financial responsibility, persons with
operational responsibility, and persons with administrative responsibility.
Rainfall, snowmelt, or irrigation water flowing over the
ground surface.
Mineral or organic soil material that is transported by wind
or water from its origin to another location; the product of erosion
processes.
The process or act of deposition of sediment.
Any lot or parcel of land or area of property where land-disturbing
activities are, were, or will be performed.
The incline of a ground surface expressed as a ratio of horizontal
distance to vertical distance.
Any earth, sand, rock, gravel, or similar material.
The use, singly or in combination, of mechanical, structural,
or vegetative methods, to prevent or retard erosion.
Any surface flow, runoff, and drainage consisting entirely
of water from any form of natural precipitation, and resulting from
such precipitation.
A document containing narrative, drawings and details prepared
by a registered professional engineer (PE), a registered professional
land surveyor (PLS), or a certified professional in erosion and sedimentation
control (CPESC) which includes structural and nonstructural best management
practices and activities to identify sources of pollution or contamination
and the actions to eliminate or reduce pollutant discharges to stormwater,
stormwater conveyance systems and/or receiving waters to the maximum
extent practicable, and to manage and treat stormwater runoff generated
from regulated development activity. A stormwater management plan
also includes an operation and maintenance plan describing the maintenance
requirements for structural best management practices.
Any activity which removes the vegetative ground surface
cover, including tree removal, clearing, grubbing, and storage or
removal of topsoil.
A plan required under the Clean Water Act[2] for a pollutant which causes or contributes to a violation
of state surface water quality standards in a specific geographic
area, and which establishes the maximum amount of that pollutant (referred
to as the load allocation and waste load allocation) which may be
discharged to the affected waters of the commonwealth by one or more
categories of users without violating state surface water quality
standards.
Material, including but not limited to trash, debris, and
sand, suspended in stormwater runoff.
Temporary bodies of freshwater which provide critical habitat
for a number of vertebrate and invertebrate wildlife species.
Any sanitary waste, sludge, or septic tank or cesspool overflow,
and water that during manufacturing, cleaning, or processing comes
into direct contact with or results from the production or use of
any material, intermediate product, finished product, by-product,
or waste product.
A natural or human-made channel through which water flows,
including a river, brook, stream, underground stream, pond or lake.
All waters within the jurisdiction of the commonwealth, including,
without limitation, rivers, streams, lakes, ponds, springs, impoundments,
estuaries, wetlands, coastal waters, and groundwater.
Area specified in the Massachusetts Wetlands Protection Act
MGL c. 131, § 40, and in the Town of Fairhaven Wetlands
Protection Bylaw.[3]
Tidal and nontidal areas characterized by saturated or nearly
saturated soils most of the year that are located between terrestrial
(land-based) and aquatic (water-based) environments, including freshwater
marshes around ponds and channels (rivers and streams), brackish and
salt marshes; common names include marshes, swamps and bogs. Freshwater
wetland, marsh, bog, wet meadow and swamp are defined in MGL c. 131,
§ 40, and are collectively known as vegetated wetlands.
Credible evidence as to wetland affinities of other vegetation in
an area shall be considered in making wetland determinations.
This chapter shall apply to land-disturbing activities on any
developed and undeveloped land within the jurisdiction of the Town
of Fairhaven and water and other materials entering the Town of Fairhaven
municipal storm drain system. Land disturbance of 40,000 square feet
or more in area is hereby prohibited except in compliance with this
chapter. The discharge of any substance other than stormwater into
the municipal stormwater system is hereby prohibited except in compliance
with this chapter.
A.Â
Regulated land-disturbance activities.
(1)Â
Regulated activities shall include, but not be limited to:
(a)Â
Land disturbance of greater than 40,000 square feet, associated
with construction or reconstruction of structures;
(b)Â
Development or redevelopment involving multiple separate activities
in discontinuous locations or on different schedules if the activities
are part of a larger common plan of development that all together
disturbs 40,000 square feet or more of land;
(c)Â
Paving, repaving or other change in surface material over an
area of 40,000 square feet or more causing a significant reduction
of permeability or increase in runoff;
(d)Â
Construction of a new drainage system or alteration of an existing
drainage system or conveyance serving a drainage area of more than
40,000 square feet;
(e)Â
Any other activity altering the surface of an area exceeding
40,000 square feet that will, or may, result in increased stormwater
runoff flowing from the property into a public way or the municipal
storm drain system; or
(f)Â
Construction or reconstruction of a structure or structures
with more than 40,000 square feet of roof drainage, or combined roof
and surface drainage.
(2)Â
Erosion and sedimentation control requirement. A project which includes
land disturbance of less than 40,000 square feet shall be considered
to be in conformance with this chapter if soils or other eroded matter
have been or will be prevented from being deposited onto adjacent
properties, rights-of-way, public storm drainage systems, or wetlands
or watercourses. The design, installation, and maintenance of erosion
and sediment control operations and facilities shall adhere to the
standards specified in the regulations to this chapter.
(3)Â
Exempted projects. Notwithstanding the provisions of above, the procedural
requirements of this chapter shall not apply to activities which have
been approved by the Planning Board or the Conservation Commission,
provided that the applicant has submitted to the Board of Public Works
a written determination from the Planning Board or the Conservation
Commission that the project complies with the performance standards
otherwise required by this chapter.
B.Â
Discharge prohibitions.
(1)Â
Prohibition of illegal discharges: No person shall discharge or cause
to be discharged into the municipal storm drain system or watercourses
any materials, including but not limited to pollutants or waters containing
any pollutants that cause or contribute to a violation of applicable
water quality standards, other than stormwater. The construction,
use, maintenance or continued existence of illicit connections to
the storm drain system is prohibited. 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. A person is considered to
be in violation of this chapter if the person connects a line conveying
sewage to the MS4, or allows such a connection to continue. The commencement,
conduct or continuance of any illegal discharge to the storm drain
system is prohibited except as described as follows:
(a)Â
Water line flushing;
(b)Â
Flow from other potable water sources;
(c)Â
Landscape irrigation or lawn watering;
(d)Â
Diverted stream flows;
(e)Â
Rising groundwater;
(f)Â
Uncontaminated groundwater infiltration as defined in 40 CFR
35.2005(b)(20);
(g)Â
Uncontaminated pumped groundwater (e.g., sump pump), provided
that where a pump intake exists inside a structure, the operator seeks
a permit from the Board of Public Works prior to discharge and thereafter
discharges in accordance with the requirements of the permit and applicable
laws and regulations;
(h)Â
Water from exterior foundation drains, footing drains (not including
active groundwater dewatering systems), crawl space pumps, or air-conditioning
condensation;
(i)Â
Noncommercial washing of vehicles;
(j)Â
Springs, natural riparian habitat or wetland flows;
(k)Â
Discharge from swimming pool water (if dechlorinated–typically
less than one ppm chlorine), provided the water is allowed to stand
for one week prior to draining and the pool is drained in such a way
as not to cause a nuisance;
(l)Â
Discharge from street sweeping;
(m)Â
Firefighting activities;
(n)Â
Dye testing is an allowable discharge, but requires a verbal
notification to the Board of Public Works prior to the time of the
test;
(o)Â
Discharges specified in writing by the Board of Public Works
as being necessary to protect public health, safety, welfare, or the
environment; and
(p)Â
The prohibition shall not apply to any nonstormwater discharge
permitted under an NPDES permit, waiver, or waste discharge order
issued to the discharger and administered under the authority of the
Federal Environmental Protection Agency, provided that the discharge
is in full compliance with all requirements of the permit, waiver,
or order and other applicable laws and regulations, and provided that
written approval has been granted for any discharge to the storm drain
system.
(2)Â
Suspension of MS4 access.
(a)Â
Suspension due to the detection of illicit discharge. Any person
discharging to the MS4 in violation of this chapter may have their
MS4 access terminated if such termination would abate or reduce an
illicit discharge. The Board of Public Works will notify a violator
of the proposed termination of its MS4 access.
(b)Â
Suspension due to illicit discharges in emergency situations. The
violator may petition the Board of Public Works for a reconsideration
and hearing. Any person commits an offense if the person reinstates
MS4 access to premises terminated pursuant to this section, without
the prior approval of the Board of Public Works.
(c)Â
The Board of Public Works 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 United States.
If the violator fails to comply with a suspension order issued in
an emergency, the Board of Public Works may take such steps as deemed
necessary to prevent or minimize damage to the MS4 or waters of the
United States, or to minimize danger to persons.
(3)Â
Industrial or construction activity discharges: Any person subject
to an industrial or construction activity NPDES stormwater discharge
permit shall comply with all provisions of such permit. Proof of compliance
with said permit may be required in a form acceptable to the Board
of Public Works prior to the allowing of discharges to the MS4.
C.Â
Exempt activities. The following activities are exempt from the requirements
of this chapter:
(1)Â
Normal maintenance and improvement of land in agricultural use as
defined by the Wetlands Protection Act (MGL c. 131, § 40)
and its associated regulations (310 CMR 10.00).
(2)Â
Repair of septic systems when required by the Board of Health for the protection of public health and compliance with Subsection B.
(3)Â
Normal maintenance of existing landscaping, gardens or lawn areas
associated with a single-family dwelling, provided such maintenance
does not include the addition of more than 50 cubic yards of soil
material, construction of any walls, alteration of existing grades
by more than one foot in elevation, or alteration of drainage patterns.
(4)Â
The construction of fencing that will not alter existing terrain
or drainage patterns.
(5)Â
Construction of utilities other than drainage (gas, water, electric,
telephone, etc.) that will not alter terrain or drainage patterns.
The Board of Public Works shall administer, implement and enforce
this chapter. Any powers granted to or duties imposed upon the Board
of Public Works through this chapter may be delegated in writing by
the Board of Public Works to its employees or agents.
The Board of Public Works may adopt, and periodically amend,
rules, regulations, and/or written guidance to effectuate the purposes
of this chapter. Failure by the Board of Public Works to promulgate
such rules and regulations, or a legal declaration of their invalidity
by a court, shall not act to suspend or invalidate the effect of this
chapter. Such regulations, rules or guidance may include, without
limitation, provisions for the establishment of one or more categories
of administrative review approvals for specific types or sizes of
projects. Administrative review applications that meet all the standard
requirements may be issued by one or more agents designated in writing
by the Board of Public Works, without the requirement for a public
hearing as detailed in this chapter. Administrative review approval
shall comply with all other provisions of this chapter.
Permit issuance is required prior to any activity disturbing
40,000 or more square feet of land. The site owner or his agent shall
apply for the permit with the Board of Public Works. While application
may be made by a representative, the permitted must be the owner of
the site.
A.Â
Applications. An application shall be made to the Board of Public
Works in a form and containing information as specified in this chapter
and in the regulations adopted by the Board of Public Works and shall
be accompanied by payment of the appropriate application and review
fees.
B.Â
Fees. Fees shall be established by Board of Public Works to cover
expenses connected with public notice, application review, and monitoring
permit compliance. The fee shall be sufficient to also cover professional
review. The Board of Public Works is authorized to retain a registered
professional engineer or other professional consultant to advise the
Board of Public Works on any or all aspects of these plans. Applicants
must pay review fees before the review process may begin.
C.Â
Information requests. The Board of Public Works may request such
additional information as is necessary to enable the Board of Public
Works to determine whether the proposed land-disturbance activity
will protect water resources and comply with the requirements of this
chapter.
D.Â
Determination of completeness. The Board of Public Works shall make
a determination as to the completeness of the application and adequacy
of the materials submitted. No review shall take place until the application
has been found to be complete.
E.Â
Coordination with other boards. On receipt of a complete application
for a land-disturbance permit, the Board of Public Works shall distribute
one copy each to the Planning Board, Department of Public Works, Board
of Health, and the Building Inspector for review and comment. Said
agencies shall, in their discretion, investigate the case and report
their recommendations to the Board of Public Works. The Board of Public
Works shall not hold a hearing on the land-disturbance permit until
it has received reports from said agencies or until said agencies
have allowed 45 days to elapse after receipt of the application materials
without submission of a report thereon.
F.Â
Entry. Filing an application for a land-disturbance permit grants
the Board of Public Works or its agent permission to enter the site
to verify the information in the application and to inspect for compliance
with permit conditions, to the extent permitted by law.
G.Â
Hearing. Once in receipt of a complete application for a land-disturbance
permit, the Board of Public Works shall hold a public hearing and
shall take final action within 90 days from the close of the hearing
unless such time is extended by agreement between the applicant and
the Board of Public Works. Notice of the public hearing shall, at
least seven business days prior to said hearing, be given by publication
in a local paper of general circulation, and by posting. The Board
of Public Works shall be responsible for publishing the notice in
a newspaper of general circulation in the city or Town once in each
of two successive weeks, the first publication to be not less than
14 days before the day of said hearing, and posting the notice at
the Town Hall. The Board of Public Works shall make the application
available for inspection by the public during business hours at their
Town of Fairhaven Office.
H.Â
Action. The Board of Public Works may:
(1)Â
Approve the application and issue a permit if it finds that the proposed
plan will protect water resources and complies with the requirements
of this chapter;
(2)Â
Approve the application and issue a permit with conditions, modifications
or restrictions that the Board of Public Works determines are required
to ensure that the project will protect water resources and complies
with the requirements of this chapter; or
(3)Â
Disapprove the application and deny a permit if it finds that the
proposed plan will not protect water resources or fails to meet the
objectives of and to comply with the requirements of this chapter.
If the Board of Public Works finds that the applicant has submitted
insufficient information to describe the site, the work, or the effect
of the work on water quality and runoff volume, the Board of Public
Works may disapprove the application, denying a permit.
I.Â
Project changes. The permittee, or his or her agent, must notify
the agent of the Board of Public Works in writing of any change or
alteration of a land-disturbing activity before the change or alteration
occurs. If the agent of the Board of Public Works determines that
the change or alteration is significant, the agent of the Board of
Public Works may require that an amended application or a full application
be filed in accordance with this section. If any change or alteration
from the land-disturbance permit occurs during land-disturbing activities,
the agent of the Board of Public Works may require the installation
of interim erosion and sedimentation control measures before approving
the change or alteration.
J.Â
Waivers.
(1)Â
Following a public hearing on a waiver request, the Board of Public
Works may waive strict compliance with any requirement of this chapter
or the rules and regulations promulgated hereunder, where:
(2)Â
Any applicant must submit a written request to be granted such a
waiver. Such a request shall be accompanied by an explanation or documentation
supporting the waiver request and demonstrating that strict application
of the chapter does not further the purposes or objectives of this
chapter.
(3)Â
All waiver requests shall be discussed and voted on at the public
hearing for the project.
(4)Â
If, in the Board of Public Works' opinion, additional time or information
is required for review of a waiver request, the Board of Public Works
may continue a hearing to a certain date announced at the meeting.
In the event the applicant objects to a continuance, or fails to provide
requested information, the waiver request shall be denied.
A.Â
The erosion and sediment control plan should include a written description
of the plan as well as an emergency response outline (including response
phone numbers) and a maintenance schedule. The plan shall meet the
following objectives and criteria:
(1)Â
Keep disturbed areas small: no more than 60 feet in width and 100
feet in length of a single lot, or five acres of the overall tract
at one time. Said plan shall identify design issues and methods employed
to address such items as topography, soils, vegetation, steep slopes,
wetlands and water bodies.
(2)Â
Stabilize and protect disturbed areas quickly: Exposed areas and
stockpiles shall be revegetated within 40 days of being exposed. The
Board of Public Works, depending on weather conditions, may require
slope and stockpile stabilization sooner. Methods for stabilizing
disturbed areas include mechanical, structural, and vegetative. In
some cases, some or all of these methods should be combined in order
to retard erosion. These methods shall be identified in the erosion
and sedimentation control plan.
(3)Â
Keep stormwater runoff velocities low: Velocities of runoff should
be in the range of two to 10 feet per second. The removal of the existing
vegetative cover during the development and the resulting increase
in impermeable surface area after development will increase both the
volume and velocity of runoff. These increases must be taken into
account when providing for erosion control.
(4)Â
Protect disturbed areas from stormwater runoff: Conservation measures
can be utilized to prevent water from entering and running over the
disturbed area. Diversions and other control practices to intercept
runoff from higher elevations, store or divert it away from vulnerable
areas, and direct it towards stabilized outlets should be utilized.
Selected measures should be identified on the plan and in text.
The stormwater management plan shall contain sufficient information
to describe the nature and purpose of the proposed development, pertinent
conditions of the site and the adjacent areas, and proposed best management
practices for the permanent management and treatment of stormwater.
The stormwater management plan shall contain sufficient information
for the Board of Public Works to evaluate the environmental impact,
effectiveness, and acceptability of the measures proposed by the applicant
for reducing adverse impacts from stormwater. The plan shall be designed
to meet the Massachusetts Stormwater Management Standards set forth
in the Massachusetts Stormwater Management Policy and DEP Stormwater
Management Handbook Volumes I and II. The stormwater management plan
shall fully describe the project in drawings, and narrative. The applicant
shall submit such material as is required for the administration of
this chapter.
B.Â
The plan
shall utilize the twenty-four-hour rainfall data taken from the NOAA
Atlas 14, https://hdsc.nws.noaa.gov/hdsc/pfds/pfds_map_cont.html (or
most current data from NOAA), and Type III storm.
[Added 6-14-2021 ATM by Art. 59]
A.Â
An operation and maintenance plan (O&M plan) for the permanent
stormwater management system is required at the time of application
for all projects. The maintenance plan shall be designed to ensure
compliance with this chapter and that the Massachusetts Surface Water
Quality Standards contained in 314 CMR 4.00 are met in all seasons
and throughout the life of the system. The operation and maintenance
plan shall include any requirements deemed necessary by the Board
of Public Works to insure compliance with said plan, including without
limitation a covenant. The Board of Public Works shall make the final
decision of what maintenance option is appropriate in a given situation.
The Board of Public Works will consider natural features, proximity
of site to water bodies and wetlands, extent of impervious surfaces,
size of the site, the types of stormwater management structures, and
potential need for ongoing maintenance activities when making this
decision. Once approved by the Board of Public Works, the operation
and maintenance plan shall be recorded at the Bristol County Registry
of Deeds by the permittee, shall run with the land, shall remain on
file with the Board of Public Works and shall be an ongoing requirement.
The operation and maintenance plan shall conform to the requirements
listed in the regulations adopted by the Board of Public Works for
the administration of this chapter. Stormwater management easements
shall be provided by the property owner(s) in areas and as necessary
to carry out the required maintenance.
B.Â
Changes to operation and maintenance plans.
(1)Â
The owner(s) of the stormwater management system must notify the
Board of Public Works or its agent of changes in ownership or assignment
of financial responsibility.
(2)Â
The maintenance schedule in the maintenance agreement may be amended
to achieve the purposes of this chapter by mutual agreement of the
Board of Public Works and the responsible parties. Amendments must
be in writing and signed by all responsible parties.
A.Â
Pre-construction meeting. Prior to clearing, excavation, construction,
or any land-disturbing activity requiring a permit, the applicant,
the applicant's technical representative, the general contractor,
pertinent subcontractors, and any person with authority to make changes
to the project, shall meet with the Board of Public Works or its designated
agent to review the permitted plans and proposed implementation.
B.Â
Commission inspection. The Board of Public Works or its designated
agent shall make inspections as hereinafter required and shall either
approve that portion of the work completed or shall notify the permittee
wherein the work fails to comply with the approved plans and any conditions
of approval. One copy of the approved plans and conditions of approval,
signed by the Board of Public Works shall be maintained at the site
during the progress of the work. In order to obtain inspections, the
permittee shall notify the agent of the Board of Public Works at least
three working days before each of the following events:
(1)Â
Erosion and sediment control measures are in place and stabilized;
(2)Â
Rough grading has been substantially completed;
(3)Â
Final grading has been substantially completed;
(4)Â
Bury inspection: prior to backfilling of any underground drainage
or stormwater conveyance structures;
(5)Â
Close of the construction season; and
(6)Â
Final landscaping (permanent stabilization) and project final completion.
C.Â
Permittee inspections. The permittee or his/her agent shall conduct
and document inspections of all control measures no less than weekly
or as specified in the permit, and prior to and following anticipated
storm events. The purpose of such inspections will be to determine
the overall effectiveness of the control plan, and the need for maintenance
or additional control measures. The permittee or his/her agent shall
submit monthly reports to the Board of Public Works or designated
agent in a format approved by the Board of Public Works. The Board
of Public Works may require, as a condition of approval, that an environmental
site monitor, approved by the Board of Public Works, be retained by
the applicant to conduct such inspections and prepare and submit such
reports to the Board of Public Works or its designated agent.
D.Â
Access permission. To the extent permitted by law, or if authorized
by the owner or other party in control of the property, the Board
of Public Works, its agents, officers, and employees may enter upon
privately owned property for the purpose of performing their duties
under this chapter and may make or cause to be made such examinations,
surveys or sampling as the Board of Public Works deems reasonably
necessary to determine compliance with the permit.
The Board of Public Works may require the permittee to post, before the start of land-disturbance activity, a surety bond, irrevocable letter of credit, cash, or other acceptable security. The form of the bond shall be approved by Town Counsel, and be in an amount deemed sufficient by the Board of Public Works to insure that the work will be completed in accordance with the permit. If the project is phased, the Board of Public Works may release part of the bond as each phase is completed in compliance with the permit, but the bond may not be fully released until the Board of Public Works has received the final report as required by § 194-13 and issued a certificate of completion.
Upon completion of the work, the permittee shall submit a report
(including certified as-built construction plans) from a registered
professional engineer (PE), registered professional land surveyor
(PLS), or a certified professional in erosion and sedimentation control
(CPESC) certifying that all erosion and sedimentation control devices,
and approved changes and modifications, have been completed in accordance
with the conditions of the approved land-disturbance permit. Any discrepancies
should be noted in the cover letter.
The Board of Public Works will issue a certificate of completion
upon receipt and approval of the final reports and/or upon otherwise
determining that all work of the land disturbance permit has been
satisfactorily completed in conformance with this chapter. The certificate
of completion shall be recorded at the Registry of Deeds by the owner(s).
A.Â
Applicability. This section applies to all facilities that have stormwater
discharges associated with industrial activity, including construction
activity.
B.Â
Access to facilities.
(1)Â
The Board of Public Works shall be permitted to enter and inspect
facilities subject to regulation under this chapter as often as may
be necessary to determine compliance with this chapter. If a discharger
has security measures in force which require proper identification
and clearance before entry into its premises, the discharger shall
make the necessary arrangements to allow access to representatives
of the Board of Public Works.
(2)Â
Facility operators shall allow the Board of Public Works ready access
to all parts of the premises for the purposes of inspection, sampling,
examination and copying of records that must be kept under the conditions
of an NPDES permit to discharge stormwater, and the performance of
any additional duties as defined by state and federal law.
(3)Â
The Board of Public Works shall have the right to set up on any permitted
facility such devices as are necessary in the opinion of the Board
of Public Works to conduct monitoring and/or sampling of the facility's
stormwater discharge.
(4)Â
The Board of Public Works has the right to require the discharger
to install monitoring equipment as necessary. 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)Â
Any temporary or permanent obstruction to safe and easy access to
the facility to be inspected and/or sampled shall be promptly removed
by the operator at the written or oral request of the Board of Public
Works and shall not be replaced. The costs of clearing such access
shall be borne by the operator.
(6)Â
Unreasonable delays in allowing the Board of Public Works access
to a permitted facility is a violation of a stormwater discharge permit
and of this chapter. A person who is the operator of a facility with
an NPDES permit to discharge stormwater associated with industrial
activity commits an offense if the person denies the Board of Public
Works reasonable access to the permitted facility for the purpose
of conducting any activity authorized or required by this chapter.
(7)Â
If the Board of Public Works has been refused access to any part
of the premises from which stormwater is discharged, and he/she is
able to demonstrate probable cause to believe that there may be a
violation of this chapter, 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 chapter or any order issued hereunder,
or to protect the overall public health, safety, and welfare of the
community, then the Board of Public Works may seek issuance of a search
warrant from any court of competent jurisdiction.
The Board of Public Works will adopt requirements identifying
best management practices for any activity, operation, or facility
which may cause or contribute to pollution or contamination of stormwater,
the storm drain system, or waters of the United States. The owner
or operator of a commercial or industrial establishment shall provide,
at their own expense, reasonable protection from accidental discharge
of prohibited materials or other wastes into the municipal storm drain
system or watercourses through the use of these structural and nonstructural
BMPs. Further, any person responsible for a property or premises which
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 the municipal separate storm sewer system. Compliance with all
terms and conditions of a valid NPDES permit authorizing the discharge
of stormwater associated with industrial activity, to the extent practicable,
shall be deemed compliance with the provisions of this section. These
BMPs shall be part of a stormwater pollution prevention plan (SWPP)
as necessary for compliance with requirements of the NPDES permit.
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 trash, debris, excessive vegetation,
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.
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 illegal discharges or pollutants discharging into stormwater, the
storm drain system, or water of the United States, said person shall
take all necessary steps to ensure the discovery, containment, and
cleanup of such release. 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. In the
event of a release of nonhazardous materials, said person shall notify
the Board of Public Works 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 Board of
Public Works 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 three years.
A.Â
The Board of Public Works or an authorized agent of the Board of
Public Works shall enforce this chapter, regulations, orders, violation
notices, and enforcement orders, and may pursue all civil and criminal
remedies for such violations.
B.Â
Orders.
(1)Â
The Board of Public Works or an authorized agent of the Board of
Public Works may issue a written order to enforce the provisions of
this chapter or the regulations thereunder, which may include:
(a)Â
A requirement to cease and desist from the violating activity
until there is compliance with the chapter and any existing permits.
(b)Â
Maintenance, installation or performance of additional erosion
and sedimentation control measures.
(c)Â
Monitoring, analyses, and reporting.
(d)Â
Remediation of erosion and sedimentation resulting directly
or indirectly from the land-disturbing activity.
(e)Â
The elimination of illicit connections or discharges.
(f)Â
The abatement or remediation of stormwater pollution or contamination
hazards and the restoration of any affected property.
(2)Â
If the enforcing person determines that abatement or remediation
of erosion and sedimentation, stormwater pollution or contamination
hazards is required, the order shall set forth a deadline by which
such abatement or remediation must be completed. Said order shall
further advise that, should the violator or property owner fail to
abate or perform remediation within the specified deadline, the Town
of Fairhaven may, at its option, undertake such work, and the property
owner shall reimburse the Town's expenses.
(3)Â
Within 30 days after completing all measures necessary to abate the
violation or to perform remediation, the violator and the property
owner shall be notified of the costs incurred by the Town of Fairhaven,
including administrative costs. The violator or property owner may
file a written protest objecting to the amount or basis of costs with
the Board of Public Works within 30 days of receipt of the notification
of the costs incurred. If the amount due is not received by the expiration
of the time in which to file a protest or within 30 days following
a decision of the Board of Public Works affirming or reducing the
costs, or from a final decision of a court of competent jurisdiction,
the costs shall become a special assessment against the property owner
and shall constitute a lien on the owner's property for the amount
of said costs.
(4)Â
Such special assessment shall constitute a lien for the purpose of
MGL c. 40, § 58.
[Amended 11-12-2019 STM
by Art. 12]
C.Â
Criminal penalty. Any person who violates any provision of this chapter,
or regulation, order or permit issued thereunder, shall be punished
by a fine of not more than $300 for each offense. Each day or part
thereof that such violation occurs or continues shall constitute a
separate offense.
D.Â
Noncriminal disposition. As an alternative to criminal prosecution
or civil action, the Town of Fairhaven may elect to utilize the noncriminal
disposition procedure, in which case the Board of Public Works or
authorized agent shall be the enforcing person. The penalty for each
violation shall be $300. Each day or part thereof that such violation
occurs or continues shall constitute a separate offense.
E.Â
Appeals. All decisions or orders of the Board of Public Works shall
be final. Further relief shall be to a court of competent jurisdiction.
F.Â
Remedies not exclusive. The remedies listed in this chapter are not
exclusive of any other remedies available under any applicable federal,
state or local law.
This chapter shall be implemented by the Board of Public Works
in accordance with the requirements of the EPA's most recent general
permit for MS4s in Massachusetts relating to illicit connections and
discharges, construction site runoff, and post-construction stormwater
management. The Board of Public Works shall include these requirements
in any regulations that it issues. The Board of Public Works may establish
additional requirements by regulation to further the purposes and
objectives of this chapter, so long as they are not less stringent
than those in the MS4 general permit for Massachusetts.
If any provision, paragraph, sentence, or clause of this chapter
or the application thereof to any person, establishment or circumstance
shall be held invalid for any reason, all other provisions shall continue
in full force and effect to the extent permitted by law.
