[HISTORY: Adopted by the Town Board of the Town of Sheboygan as indicated in article histories. Amendments noted where applicable.]
[Adopted 10-16-2018 by Ord. No. 10162018A]
A. 
This article is adopted by the Town Board of the Town of Sheboygan under the authority granted by Wis. Stats. § 60.627. This article supersedes all provisions of an ordinance previously enacted under Wis. Stats. § 60.62, that relate to stormwater management regulations. Except as otherwise specified in § 60.627, Wis. Stats., § 60.62, Wis. Stats., applies to this article and to any amendments to this article.
B. 
The provisions of this article are deemed not to limit any other lawful regulatory powers of the Town Board.
C. 
The Town Board of the Town of Sheboygan hereby designates the Director of Public Works or his designee to administer and enforce the provisions of this article.
D. 
The requirements of this article do not preempt more stringent stormwater management requirements that may be imposed by any of the following:
(1) 
Wisconsin Department of Natural Resources administrative rules, permits or approvals, including those authorized under §§ 281.16 and 283.33, Wis. Stats.
(2) 
Targeted nonagricultural performance standards promulgated in rules by the Wisconsin Department of Natural Resources under § NR 151.004, Wis. Adm. Code.
The Town Board of the Town of Sheboygan acknowledges that uncontrolled, post-construction runoff has a significant impact upon water resources and the health, safety and general welfare of the community and diminishes the public enjoyment and use of natural resources. Specifically, uncontrolled post-construction runoff can:
A. 
Degrade physical stream habitat by increasing stream bank erosion, increasing streambed scour, diminishing groundwater recharge, diminishing stream base flows and increasing stream temperature.
B. 
Diminish the capacity of lakes and streams to support fish, aquatic life, recreational and water supply uses by increasing pollutant loading of sediment, suspended solids, nutrients, heavy metals, bacteria, pathogens and other urban pollutants.
C. 
Alter wetland communities by changing wetland hydrology and by increasing pollutant loads.
D. 
Reduce the quality of groundwater by increasing pollutant loading.
E. 
Threaten public health, safety, property and general welfare by overtaxing storm sewers, drainageways, and other minor drainage facilities.
F. 
Undermine floodplain management efforts by increasing the incidence and levels of flooding.
G. 
Diminish the public enjoyment of natural resources.
A. 
Purpose. The general purpose of this article is to establish long-term, post-construction runoff management requirements that will diminish the threats to public health, safety, welfare and the aquatic environment. Specific purposes are to:
(1) 
Further the maintenance of safe and healthful conditions.
(2) 
Prevent and control the adverse effects of stormwater; prevent and control soil erosion; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structures and land uses; preserve ground cover and scenic beauty; and promote sound economic growth.
(3) 
Control exceedance of the safe capacity of existing drainage facilities and receiving water bodies; prevent undue channel erosion; and control increases in the scouring and transportation of particulate matter, and prevent conditions that endanger downstream property.
(4) 
Minimize the amount of pollutants discharged from the separate storm sewer to protect the waters of the state.
B. 
Intent. It is the intent of the Town Board of the Town of Sheboygan that this article regulates post-construction stormwater discharges to waters of the state. This article may be applied on a site-by-site basis. The Town of Sheboygan recognizes, however, that the preferred method of achieving the stormwater performance standards set forth in this article is through the preparation and implementation of comprehensive, systems-level stormwater management plans that cover hydrologic units, such as watersheds, on a municipal and regional scale. Such plans may prescribe regional stormwater devices, practices or systems, any of which may be designed to treat runoff from more than one site prior to discharge to waters of the state. Where such plans are in conformance with the performance standards developed under Wis. Stats. § 281.16 for regional stormwater management measures and have been approved by the Town of Sheboygan, it is the intent of this article that the approved stormwater management plan be used to identify post-construction management measures acceptable for the community.
A. 
Applicability.
(1) 
Except as provided under Subsection A(2), this article applies to a post-construction site whereupon one acre or more of land-disturbing construction activity occurs during construction.
(2) 
A site that meets any of the criteria in this subsection is exempt from the requirements of this article:
(a) 
A post-construction site with less than 10% connected imperviousness, based on the area of land disturbance, provided the cumulative area of all impervious surfaces is less than one acre. However, the exemption of this subsection does not include exemption from the protective area standard of this article.
(b) 
Agricultural facilities and practices.
(c) 
Underground utility construction, but not including the construction of any aboveground structures associated with utility construction.
(d) 
Routine maintenance for project sites under five acres of land disturbance if performed to maintain the original line and grade, hydraulic capacity or original purpose of the facility.
(3) 
Notwithstanding the applicability requirements in Subsection A(1), this article applies to post-construction sites of any size that, as determined by the Town of Sheboygan, are likely to result in runoff that exceeds the safe capacity of the existing drainage facilities or receiving body of water, causes undue channel erosion, or increases water pollution by scouring or the transportation of particulate matter or that endangers property or public safety.
B. 
Jurisdiction. This article applies to post-construction sites within the boundaries and jurisdiction of the Town of Sheboygan;
C. 
Exclusions. This article is not applicable to activities conducted by a state agency, as defined under§ 227.01(1), Wis. Stats.
As used in this article, the following terms shall have the meanings indicated:
ADEQUATE SOD or SELF-SUSTAINING VEGETATIVE COVER
Maintenance of sufficient vegetation types and densities such that the physical integrity of the stream bank or lakeshore is preserved. "Self-sustaining vegetative cover" includes grasses, forbs, sedges and duff layers of fallen leaves and woody debris.
ADMINISTERING AUTHORITY
The Director of Public Works/Zoning Administration.
AGRICULTURAL FACILITIES AND PRACTICES
Has the meaning given in § 281.16(1), Wis. Stats.
AGRICULTURAL USE
Beekeeping; commercial feed lots, dairying; egg production; floriculture; fish or fur farming; forest and game management; grazing; livestock raising; orchards; plat greenhouses and nurseries; poultry raising; raising of grain, grass, mint, and seed crops; raising of fruits, nuts, and berries; sod farming; placing land in federal programs in return for payments in kind; owning land, at least 35 acres of which is enrolled in the conservation reserve program under 16 U.S.C. §§ 3831 to 3836; participating in the milk production termination program under 7 U.S.C. 1446 (d); and vegetable raising [Wis. Stats. § 91.01(1)].
ATLAS 14
The National Oceanic and Atmospheric Administration (NOAA) Atlas 14 Precipitation-Frequency Atlas of the United States, Volume 8 (Midwestern States), published in 2013.
AVERAGE ANNUAL RAINFALL
A typical calendar year of precipitation as determined by the Wisconsin Department of Natural Resources for users of models such as WinSLAMM, P8 or equivalent methodology. The average annual rainfall is chosen from a department publication for the location closest to the municipality.
BEST MANAGEMENT PRACTICE or BMP
Structural or nonstructural measures, practices, techniques or devices employed to avoid or minimize sediment or pollutants carried in runoff to waters of the state.
BUSINESS DAY
A day the office of the Town of Sheboygan is routinely and customarily open for business.
CEASE-AND-DESIST ORDER
A court-issued order to halt land-disturbing construction activity that is being conducted without the required permit or in violation of a permit issued by the Town of Sheboygan.
COMMON PLAN OF DEVELOPMENT OR SALE
All lands included within the boundary of a certified survey or subdivision plat created for the purpose of development or sale of property where multiple separate and distinct land developing activity may take place at different times and on different schedules.
CONCENTRATED FLOW CHANNEL
A channel produced by erosion from runoff or by construction, that would not be removed by tillage operations typically needed to prepare a field for crop production.
CONNECTED IMPERVIOUSNESS
An impervious surface connected to the waters of the state via a separate storm sewer, an impervious flow path, or a minimally pervious flow path.
CONSTRUCTION SITE
An area upon which one or more land-disturbing construction activities occur, including areas that are part of a larger common plan of development or sale where multiple separate and distinct land-disturbing construction activities may be taking place at different time on different schedules but under one plan.
DESIGN STORM
A hypothetical discrete rainstorm characterized by a specific duration, temporal distribution, rainfall intensity, return frequency and total depth of rainfall.
DEVELOPMENT
Residential, commercial, industrial or institutional land uses and associated roads.
DIRECT CONDUITS TO GROUNDWATER
Wells, sinkholes, swallets, fractured bedrock at the surface, mine shafts, nonmetallic mines, tile inlets discharging to groundwater, quarries, or depressional groundwater recharge areas over shallow fractured bedrock.
DISCHARGE VOLUME
The quantity of runoff discharged from the land surface as the result of a rainfall event.
DIVISION OF LAND
The creation from one or more parcels or building sites of additional parcels or building sites where such creation occurs at one time or through the successive partition within a five-year period.
EFFECTIVE INFILTRATION AREA
The area of the infiltration system that is used to infiltrate runoff and does not include the area used for site access, berms or pretreatment.
EROSION
The process by which the land's surface is worn away by the action of wind, water, ice or gravity.
EXCEPTIONAL RESOURCE WATERS
Waters listed in Wis. Adm. Code § NR 102.11,
EXISTING LAND USE CONDITION
The condition of the proposed development site and the adjacent properties that are present at the time of the stormwater permit application. This term applies only for properly sizing the stormwater conveyance system in accordance with the requirement of this article in § 266-8D(2)(b).
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
EXTRATERRITORIAL
The unincorporated area within three miles of the corporate limits of a first, second, or third class city, or within 1 1/2 miles of a fourth class city or village.
FEE IN LIEU
A payment of money to the Town of Sheboygan in place of meeting all or part of the stormwater performance standards required by this article.
FINAL STABILIZATION
That all land-disturbing construction activities at the construction site have been completed and that a uniform perennial vegetative cover has been established with a density of at least 70% of the cover for the unpaved areas and areas not covered by permanent structures or that employ equivalent permanent stabilization measures.
FINANCIAL GUARANTEE
A performance bond, maintenance bond, surety bond, irrevocable letter of credit, or similar guarantees submitted to the administering authority by the responsible party to assure that requirements of this article are carried out in compliance with the stormwater management plan.
GOVERNING BODY
The Town of Sheboygan Town Board.
ILLICIT DISCHARGE
Any release to a municipal separate storm sewer that is not composed entirely of runoff, except discharges authorized by a WPDES permit or any other discharge not requiring a WPDES permit, such as water line flushing, landscape irrigation, individual residential car washing, firefighting, and similar discharges.
IMPERVIOUS SURFACE
An area that releases as runoff all or a large portion of the precipitation that falls on it, except for frozen soil. Rooftops, sidewalks, driveways, gravel or paved parking lots and streets are examples of areas that typically are impervious.
INFILL
An undeveloped area of land located within an existing urban sewer service area, surrounded by development or development and natural or man-made features where development cannot occur.
INFILTRATION
The entry of precipitation or runoff into or through the soil.
INFILTRATION SYSTEM
A device or practice, such as a basin, trench, rain garden or swale, designed specifically to encourage infiltration, but does not include natural infiltration in pervious surfaces, such as lawns, redirecting of rooftop downspouts onto lawns or minimal infiltration from practices, such as swales or roadside channels designed for conveyance and pollutant removal only.
LAND DEVELOPMENT (AND LAND REDEVELOPMENT) ACTIVITY
Any activity that changes the volume or peak flow discharge rate of rainfall runoff or changes the amount of soil erosion, sediment and pollutant loadings from the land surface. This applies to any change of land use except this term does not include agricultural activities.
LAND-DISTURBING CONSTRUCTION ACTIVITY
Any man-made alteration of the land surface resulting in a change in the topography or existing vegetative or nonvegetative soil cover, that may result in runoff and lead to an increase in soil erosion and movement of sediment into waters of the state. "Land-disturbing construction activity" includes clearing and grubbing, demolition, excavating, pit trench dewatering, filling and grading activities.
LAND USER
Any person operating, leasing, renting or having made other arrangements with the landowner by which the landowner authorizes use of his or her land.
LANDOWNER
Any person holding fee title, an easement or other interest in property, which allows the person to undertake cropping, livestock management, land-disturbing construction activity or maintenance of stormwater BMPs on the property.
MAINTENANCE AGREEMENT
A legal document that provides for long-term maintenance of stormwater management practices.
MAXIMUM EXTENT PRACTICABLE
The highest level of performance that is achievable but is not equivalent to a performance standard identified in this article as determined in accordance with § 266-6.
NATURAL WETLANDS
An area where water is at, near, or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation and that has soils indicative of wet conditions. These wetlands include existing, mitigation and restored wetlands.
NEW DEVELOPMENT
Development resulting from the conversion of previously undeveloped land or agricultural land uses.
NONRESIDENTIAL LAND DEVELOPMENT
All development excluding residential development and agricultural use.
NONSTORMWATER DISCHARGE
A discharge to the stormwater system created by some process other than the runoff from precipitation.
NONSTRUCTURAL MEASURE
A practice, technique, or measure to reduce the volume, peak flow rate, or pollutants in stormwater, that does not require the design or installation of fixed stormwater management facilities.
NRCS MSE3 OR MSE4 DISTRIBUTION
A specific precipitation distribution developed by the United States Department of Agriculture, Natural Resources Conservation Service, using precipitation data from Atlas 14.
OFF-SITE
Located outside the property boundary described in the permit application.
ON-SITE
Located within the property boundary described in the permit application.
ORDINARY HIGH-WATER MARK
Has the meaning given in Wis. Adm. Code § NR 115.03(6).
OUTSTANDING RESOURCE WATERS
Waters listed in Wis. Adm. Code § NR 102.10.
PERCENT FINES
The percentage of a given sample of soil which passes through a No. 200 sieve.
PERFORMANCE SECURITY
Cash or an irrevocable letter of credit submitted to the Town of Sheboygan by the permit holder to assure that requirements of this article are carried out in compliance with the stormwater management plan and to recover and costs incurred by the Town for design, engineering, preparation, checking and review of plans and specifications, regulations and ordinances; and legal, administrative and fiscal work undertaken to assure and implement such compliance.
PERFORMANCE STANDARD
A narrative or measurable number specifying the minimum acceptable outcome for a facility or practice.
PERMIT
A written authorization made by the administering authority to the applicant to conduct land-disturbing construction activity or to discharge post-construction runoff to waters of the state.
PERMIT ADMINISTRATION FEE
A sum of money paid to the administering authority by the permit applicant for the purpose of recouping the expenses incurred by the authority in administering the permit.
PERVIOUS SURFACE
An area that releases as runoff a small portion of the precipitation that falls on it. Lawns, gardens, parks, forests or other similar vegetated areas are examples of surfaces that typically are pervious.
POLLUTANT
Has the meaning given in Wis. Stats. § 283.01(13).
POLLUTION
Has the meaning given in Wis. Stats. § 281.01(10).
POST-CONSTRUCTION SITE
A construction site following the completion of land-disturbing construction activity and final site stabilization.
PREDEVELOPMENT CONDITION
The extent and distribution of land cover types present before the initiation of land-disturbing construction activity, assuming that all land uses prior to development activity are managed in an environmentally sound manner.
PREVENTIVE ACTION LIMIT
The meaning given in Wis. Adm. Code § NR 140.05(17).
PROTECTIVE AREA
An area of land that commences at the top of the channel of lakes, streams and rivers, or at the delineated boundary of wetlands, and that is the greatest of the following widths, as measured horizontally from the top of the channel or delineated wetland boundary to the closest impervious surface.
REDEVELOPMENT
Areas where development is replacing older development.
RESPONSIBLE PARTY
The landowner or any other entity performing services to meet the requirements of this article through a contract or other agreement. "Runoff" means stormwater or precipitation including rain, snow or ice melt or similar water that moves on the land surface via sheet or channelized flow.
SEPARATE STORM SEWER
A conveyance or system of conveyances, including roads with drainage systems, streets, catch basins, curbs, gutters, ditches, constructed channels or storm drains, which meets all of the following criteria:
A. 
Is designed or used for collecting water or conveying runoff.
B. 
Is not part of a combined sewer system.
C. 
Is not part of a publicly owned wastewater treatment works that provides secondary or more stringent treatment.
D. 
Discharges directly or indirectly to waters of the state.
SITE
The entire area included in the legal description of the land on which the land-disturbing construction activity occurred.
STOP-WORK ORDER
An order issued by the administering authority which requires that all construction activity on the site be stopped.
STORMWATER CONVEYANCE SYSTEM
Any method employed to carry stormwater runoff within and from a land development or redevelopment activity to the Waters of the State. Examples of methods include: swales, channels, and storm sewers.
STORMWATER MANAGEMENT PLAN
A comprehensive plan designed to reduce the discharge of pollutants from stormwater, after the site has undergone final stabilization, following completion of the construction activity.
STORMWATER MANAGEMENT SYSTEM PLAN
A comprehensive plan designed to reduce the discharge of runoff and pollutants from hydrologic units on a regional or municipal scale.
TECHNICAL STANDARD
A document that specifies design, predicted performance and operation and maintenance specifications for a material, device or method.
TOP OF THE CHANNEL
An edge, or point on the landscape landward from the ordinary high-water mark of a surface water of the state, where the slope of the land begins to be less than 12% continually for at least 50 feet. If the slope of the land is 12% or less continually for the initial 50 feet landward from the ordinary high-water mark; the top of the channel is the ordinary high-water mark.
TR-55
The United States Department of Agriculture, Natural Resources Conservation Service (previously "Soil Conservation Service"), Urban Hydrology for Small Watersheds, Second Edition, Technical Release 55, June 1986, which is incorporated by reference for this article.
TRANSPORTATION FACILITY
A highway, a railroad, a public mass transit facility, a public-use airport, a public trail or any other public work for transportation purposes such as harbor improvements under § 85.095(1)(b), Wis. Stats. Does not include building sites for the construction of public buildings and buildings that are places of employment that are regulated by the Department pursuant to § 281.33, Wis. Stats.
TSS
Total suspended solids.
TYPE II DISTRIBUTION
A rainfall type curve as established in the United States Department of Agriculture, Soil Conservation Service, Technical Paper 149, published in 1973.
WATERS OF THE STATE
Includes those portions of Lake Michigan and Lake Superior within the boundaries of this state, and all lakes, bays, rivers, streams, springs, ponds, wells, impounding reservoirs, marshes, watercourses, drainage systems and other surface water or groundwater, natural or artificial, public or private, within this state or its jurisdiction.
Maximum extent practicable applies when a person who is subject to a performance standard of this article demonstrates to the Town of Sheboygan's satisfaction that a performance standard is not achievable and that a lower level of performance is appropriate. In making the assertion that a performance standard is not achievable and that a level of performance different from the performance standard is the maximum extent practicable, the responsible party shall take into account the best available technology, cost effectiveness, geographic features, and other competing interests, such as protection of public safety and welfare, protection of endangered and threatened resources, and preservation of historic properties.
The following methods shall be used in designing the water quality, peak discharge, and infiltration components of stormwater practices needed to meet the water quality standards of this article:
A. 
Consistent with the technical standards identified, developed or disseminated by the Wisconsin Department of Natural Resources under Subchapter V of Chapter NR 151, Wis. Adm. Code.
B. 
Where technical standards have not been identified or developed by the Wisconsin Department of Natural Resources, other technical standards may be used, provided that the methods have been approved by the Town of Sheboygan.
A. 
Responsible party. The responsible party shall comply with this section.
B. 
Stormwater management plan. A written stormwater management plan in accordance with § 266-10 shall be developed and implemented for each post-construction site.
C. 
Maintenance of effort. For redevelopment sites where the redevelopment will be replacing older development that was subject to post-construction performance standards of Ch. NR 151, Wis. Adm. Code, in effect on or after October 1, 2004, the responsible party shall meet the total suspended solids reduction, peak flow control, infiltration, and protective areas standards applicable to the older development or meet the redevelopment standards of this article, whichever is more stringent.
D. 
Requirements. The stormwater management plan required under § 266-8B shall include the following:
(1) 
Total suspended solids. BMPs shall be designed, installed and maintained to control total suspended solids carried in runoff from the post-construction site as follows:
(a) 
BMPs shall be designed in accordance with Table 1. or to the maximum extent practicable as provided in § 266-8B. The design shall be based on an average annual rainfall, as compared to no runoff management controls.
Table 1 - TSS Reduction Standards
Development Type
TSS Reduction
New development
80%
Infill development
80%
Redevelopment
40% of load from parking areas and roads
(b) 
Maximum extent practicable. If the design cannot meet a total suspended solids reduction performance standard of Table 1, the stormwater management plan shall include a written, site-specific explanation of why the total suspended solids reduction performance standard cannot be met and why the total suspended solids load will be reduced only to the maximum extent practicable.
(c) 
Off-site drainage. When designing BMPs, runoff draining to the BMP from off-site shall be taken into account in determining the treatment efficiency of the practice. Any impact on the efficiency shall be compensated for by increasing the size of the BMP accordingly.
(2) 
Peak discharge.
(a) 
By design, BMPs shall be employed to maintain or reduce the one-year, twenty-four-hour; the two-year, twenty-four-hour; the ten-year, twenty-four-hour and the 100-year, twenty-four-hour post-construction peak runoff discharge rates to the one-year, twenty-four-hour; the two-year, twenty-four-hour; the ten-year, twenty-four-hour; and the 100-year, twenty-four-hour predevelopment peak runoff discharge rates, respectively, or to the maximum extent practicable. The runoff curve numbers in Table 2 shall be used to represent the actual predevelopment conditions. Peak discharges shall be calculated using TR-55 runoff curve number methodology, Atlas 14 precipitation depths, and the appropriate NRCS Wisconsin MSE3 or MSE4 precipitation distribution. On a case-by-case basis, the Town of Sheboygan may allow the use of TP-40 precipitation depths and the Type II distribution.
(b) 
All stormwater conveyance systems within the proposed development shall be designed to completely contain the peak storm flows as described herein.
[1] 
For open channel conveyance systems, the peak flow from the twenty-five-year, twenty-four-hour storm shall be completely contained within the channel bottom and banks.
[2] 
For storm sewer conveyance systems, the peak flow from the ten-year, twenty-four-hour storm shall be completely contained within the pipe with no surcharging.
[3] 
For storms greater than the ten-year, twenty-four-hour event and up to the 100-year, twenty-four-hour event, ponding shall be within existing or proposed street right-of-way. In no case shall the depth of water exceed 12 inches at the outer edge of pavement or six inches at the road crown, whichever is less.
[4] 
The 100-year storm runoff flow path outside of the conveyance system must not impact structural improvements on property.
Table 2 - Maximum Predevelopment Runoff Curve Numbers
Runoff Curve Number
Hydrologic Soil Group
A
B
C
D
Woodland
30
55
70
77
Grassland
39
61
71
78
Cropland
55
69
78
83
(c) 
This subsection of the article does not apply to any of the following:
[1] 
Redevelopment post-construction sites less than five acres in size.
[2] 
Except as provided under Subsection C of this section, a redevelopment post-construction site.
[3] 
An infill development area less than five acres.
[4] 
Sites that directly discharge to the Sheboygan River, Onion River, or Mullet River without flowing over or through a municipally owned separate sewer or stormwater conveyance system.
(3) 
Infiltration.
(a) 
Best management practices. BMPs shall be designed, installed, and maintained to infiltrate runoff in accordance with the following or to the maximum extent practicable:
[1] 
Low imperviousness. For development up to 40% connected imperviousness, such as parks, cemeteries, and low-density residential development, infiltrate sufficient runoff volume so that the post-development infiltration volume shall be at least 90% of the predevelopment infiltration volume, based on an average annual rainfall. However, when designing appropriate infiltration systems to meet this requirement, no more than 1% of the post-construction site is required as an effective infiltration area.
[2] 
Moderate imperviousness. For development with more than 40% and up to 80% connected imperviousness, such as medium- and high-density residential, multifamily development, industrial and institutional development, and office parks, infiltrate sufficient runoff volume so that the post-development infiltration volume shall be at least 75% of the predevelopment infiltration volume, based on an average annual rainfall. However, when designing appropriate infiltration systems to meet this requirement, no more than 2% of the post-construction site is required as an effective infiltration area.
[3] 
High imperviousness. For development with more than 80% connected imperviousness, such as commercial strip malls, shopping centers, and commercial downtowns, infiltrate sufficient runoff volume so that the post-development infiltration volume shall be at least 60% of the predevelopment infiltration volume, based on an average annual rainfall. However, when designing appropriate infiltration systems to meet this requirement, no more than 2% of the post-construction site is required as an effective infiltration area.
(b) 
Predevelopment. The predevelopment condition shall be the same as specified in Table 2 of the peak discharge section of this article.
(c) 
Source areas.
[1] 
Prohibitions. Runoff from the following areas may not be infiltrated and may not qualify as contributing to meeting the requirements of this section unless demonstrated to meet the conditions identified in § 266-8D(3)(f):
[a] 
Areas associated with a Tier 1 industrial facility identified in Wis. Adm. Code § NR 216.21(2)(a), including storage, loading and parking. Rooftops may be infiltrated with the concurrence of the regulatory authority.
[b] 
Storage and loading areas of a Tier 2 industrial facility identified in Wis. Adm. Code § NR 216.21(2)(b).
[c] 
Fueling and vehicle maintenance areas. Runoff from rooftops of fueling and vehicle maintenance areas may be infiltrated with the concurrence of the regulatory authority.
[2] 
Exemptions. Runoff from the following areas may be credited toward meeting the requirement when infiltrated, but the decision to infiltrate runoff from these source areas is optional:
[a] 
Parking areas and access roads less than 5,000 square feet for commercial development.
[b] 
Parking areas and access roads less than 5,000 square feet for industrial development not subject to the prohibitions under Subsection D(3)(c)[1].
[c] 
Except as provided under § 266-8C, redevelopment post-construction sites.
[d] 
Infill development areas less than five acres.
[e] 
Roads on commercial, industrial and institutional land uses, and arterial residential roads.
(d) 
Location of practices.
[1] 
Prohibitions. Infiltration practices may not be located in the following areas:
[a] 
Areas within 1,000 feet upgradient or within 100 feet downgradient of direct conduits to groundwater.
[b] 
Areas within 400 feet of a community water system well as specified in § NR 811.12(5)(d), Wis. Adm. Code, or within the separation distances listed in Wis. Adm. Code § NR 812.08 for any private well or noncommunity well for runoff infiltrated from commercial, including multifamily residential, industrial and institutional land uses or regional devices for one- and two-family residential development.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
[c] 
Areas where contaminants of concern, as defined in Wis. Adm. Code § NR 720.03(2), are present in the soil through which infiltration will occur.
[2] 
Separation distances.
[a] 
Infiltration practices shall be located so that the characteristics of the soil and the separation distance between the bottom of the infiltration system and the elevation of seasonal high groundwater or the top of bedrock are in accordance with Table 3:
Table 3 - Separation Distances and Soil Characteristics
Source Area
Separation Distance
Soil Characteristics
Industrial, commercial, institutional parking lots and roads
5 feet or more
Filtering layer
Residential arterial roads
5 feet or more
Filtering layer
Roofs draining to subsurface infiltration practices
1 foot or more
Native or engineered soil with particles finer than coarse sand
Roofs draining to surface infiltration practices
Not applicable
Not applicable
All other impervious source areas
3 feet or more
Filtering layer
[b] 
Notwithstanding Subsection D(3)(d)[2], applicable requirements for injection wells classified under Wis. Adm. Code Ch. NR 815 shall be followed.
[3] 
Infiltration rate exemptions. Infiltration practices located in the following areas may be credited toward meeting the requirements under the following conditions, but the decision to infiltrate under these conditions is optional:
[a] 
Where the infiltration rate of the soil measured at the proposed bottom of the infiltration system is less than 0.6 inch per hour using a scientifically credible field test method.
[b] 
Where the least permeable soil horizon to five feet below the proposed bottom of the infiltration system using the U.S. Department of Agriculture method of soils analysis is one of the following: sandy clay loam, clay loam, silty clay loam, sandy clay, silty clay, or clay.
(e) 
Alternate use. Where alternate uses of runoff are employed, such as for toilet flushing, laundry, or irrigation or storage on green roofs where an equivalent portion of the runoff is captured permanently by rooftop vegetation, such alternate use shall be given equal credit toward the infiltration volume required by this section.
(f) 
Groundwater standards.
[1] 
Infiltration systems designed in accordance with this section shall, to the extent technically and economically feasible, minimize the level of pollutants infiltrating to groundwater and shall maintain compliance with the preventive action limit at a point of standards application in accordance with Wis. Adm. Code Ch. NR 140. However, if site-specific information indicates that compliance with a preventive action limit is not achievable, the infiltration BMP may not be installed or shall be modified to prevent infiltration to the maximum extent practicable.
[2] 
Notwithstanding Subsection D(3)(f)[1], the discharge from BMPs shall remain below the enforcement standard at the point of standards application.
(g) 
Pretreatment. Before infiltrating runoff, pretreatment shall be required for parking lot runoff and for runoff from new road construction in commercial, industrial and institutional areas that will enter an infiltration system. The pretreatment shall be designed to protect the infiltration system from clogging prior to scheduled maintenance and to protect groundwater quality in accordance with Subsection D(3)(f). Pretreatment options may include, but are not limited to, oil and grease separation, sedimentation, biofiltration, filtration, swales or filter strips.
(h) 
Maximum extent practicable. Where the conditions of Subsection D(3)(c) and (d)limit or restrict the use of infiltration practices, the performance standard of § 266-8D(3) shall be met to the maximum extent practicable.
(4) 
Protective areas.
(a) 
Definition. As used in this section, the following terms shall have the meanings indicated:
PROTECTIVE AREA
An area of land that commences at the top of the channel of lakes, streams and rivers, or at the delineated boundary of wetlands, and that is the greatest of the following widths, as measured horizontally from the top of the channel or delineated wetland boundary to the closest impervious surface. However, in this section, "protective area" does not include any area of land adjacent to any stream enclosed within a pipe or culvert so that runoff cannot enter the enclosure at this location.
[1] 
For outstanding resource waters and exceptional resource waters, 75 feet.
[2] 
For perennial and intermittent streams identified on a U.S. Geological Survey 7.5-minute series topographic map, or a county soil survey map, whichever is more current, 50 feet.
[3] 
For lakes, 50 feet.
[4] 
For wetlands not subject to Subsections [5] or [6] of this definition, 50 feet.
[5] 
For highly susceptible wetlands, 75 feet. Highly susceptible wetlands include the following types: calcareous fens, sedge meadows, open and coniferous bogs, low prairies, coniferous swamps, lowland hardwood swamps, and ephemeral ponds.
[6] 
For less susceptible wetlands, 10% of the average wetland width, but no less than 10 feet nor more than 30 feet. Less susceptible wetlands include degraded wetland dominated by invasive species, such as reed canary grass; cultivated hydric soils; and any gravel pits, or dredged material or fill material disposal sites that take on the attributes of a wetland.
[7] 
In Subsections [4] to [6] of this definition, determinations of the extent of the protective area adjacent to wetlands shall be made on the basis of the sensitivity and runoff susceptibility of the wetland in accordance with the standards and criteria in Wis. Adm. Code § NR 103.03.
[8] 
Wetland boundary delineation shall be made in accordance with Wis. Adm. Code § NR 103.08(1m). This subsection does not apply to wetlands that have been completely filled in compliance with all applicable state and federal regulations. The protective area for wetlands that have been partially filled in compliance with all applicable state and federal regulations shall be measured from the wetland boundary delineation after a fill has been placed. Where there is a legally authorized wetland fill, the protective area standard need not be met in that location.
[9] 
For concentrated flow channels with drainage areas greater than 130 acres, 10 feet.
[10] 
Notwithstanding Subsections [1] to [9] of this definition above, the greatest protective area width shall apply where rivers, streams, lakes and wetlands are contiguous.
(b) 
Applicability. This section applies to post-construction sites located within a protective area, except those areas exempted pursuant to Subsection D(4)(d) of this section.
(c) 
Requirements. The following requirements shall be met:
[1] 
Impervious surfaces shall be kept out of the protective area entirely or to the maximum extent practicable. If there is no practical alternative to locating an impervious surface in the protective area, the stormwater management plan shall contain a written, site-specific explanation.
[2] 
Where land-disturbing construction activity occurs within a protective area, adequate sod or self-sustaining vegetative cover of 70% or greater shall be established and maintained where no impervious surface is present. The adequate sod or self-sustaining vegetative cover shall be sufficient to provide for bank stability, maintenance of fish habitat, and filtering of pollutants from upslope overland flow areas under sheet flow conditions. Nonvegetative materials, such as rock riprap, may be employed on the bank as necessary to prevent erosion such as on steep slopes or where high velocity flows occur.
[3] 
BMPs, such as filter strips, swales, or wet detention ponds, that are designed to control pollutants from nonpoint sources may be located in the protective area.
(d) 
Exemptions. This section does not apply to any of the following:
[1] 
Except as provided under § 266-8C, redevelopment post-construction sites.
[2] 
Infill development areas less than five acres.
[3] 
Structures that cross or access surface water, such as boat landings, bridges, and culverts.
[4] 
Structures constructed in accordance with Wis. Stats. § 59.692(1v).
[5] 
Areas of post-construction sites from which the runoff does not enter the surface water, including wetlands, without first being treated by a BMP to meet the local ordinance requirements for total suspended solids and peak flow reduction, except to the extent that vegetative ground cover is necessary to maintain bank stability.
(5) 
Fueling and maintenance areas.
(a) 
Fueling and vehicle maintenance areas shall have BMPs designed, installed, and maintained to reduce petroleum within runoff, so that the runoff that enters waters of the state contains no visible petroleum sheen, or to the maximum extent practicable.
(b) 
A combination of the following BMPs may be used: oil and grease separators, canopies, petroleum spill cleanup materials, or any other structural or nonstructural method of preventing or treating petroleum in runoff.
(6) 
Swale treatment for transportation facilities.
(a) 
Requirement. Except as provided in Subsection D(6)(b), transportation facilities that use swales for runoff conveyance and pollutant removal are exempt from the requirements of local ordinance requirements for peak flow control, total suspended solids control, and infiltration, if the swales are designed to do all of the following, or to the maximum extent practicable:
[1] 
Swales shall be vegetated. However, where appropriate, nonvegetative measures may be employed to prevent erosion or provide for runoff treatment, such as rock riprap stabilization or check dams.
[2] 
Swales shall comply with Sections V.F. (Velocity and Depth) and V.G. (Sale Geometry Criteria) with a swale treatment length as long as that specified in Section V.C. (Pretreatment) of the Wisconsin Department of Natural Resources technical standard 1005 "Vegetated Infiltration Swales", dated May 2007, or a superseding document. Transportation facility swale treatment does not have to comply with other sections of Technical Standard 1005.
(b) 
Other requirements.
[1] 
Notwithstanding Subsection D(6)(a), the Town of Sheboygan may, consistent with water quality standards, require that other requirements, in addition to swale treatment, be met on a transportation facility with an average daily traffic rate greater than 2,500 and where the initial surface water of the state that the runoff directly enters is one of the following:
[a] 
An outstanding resource water.
[b] 
An exceptional resource water.
[c] 
Waters listed in Section 303(d) of the Federal Clean Water Act[1] that are identified as impaired in whole or in part, due to nonpoint source impacts.
[1]
Editor's Note: See 33 U.S.C. § 1313(d).
[d] 
Water where targeted performance standards are developed pursuant to Wis. Adm. Code § NR 151.004.
[2] 
The transportation facility authority shall contact the Town of Sheboygan to determine if additional BMPs beyond a water quality swale are needed under this subsection.
E. 
General considerations for stormwater management measures. The following considerations shall be observed in on-site and off-site runoff management:
(1) 
Natural topography and land cover features, such as natural swales, natural depressions, native soil infiltrating capacity, and natural groundwater recharge areas, shall be preserved and used, to the extent possible, to meet the requirements of this section.
(2) 
Emergency overland flow for all stormwater facilities shall be provided to prevent exceeding the safe capacity of downstream drainage facilities and prevent endangerment of downstream property or public safety.
(3) 
Overland flow paths from adjoining properties to an off-site facility must be maintained.
F. 
BMP location.
(1) 
To comply with the performance standards required under § 266-8, BMPs may be located on-site or off-site as part of a regional stormwater device, practice or system, but shall be installed in accordance with Wis. Adm. Code § NR 151.003.
(2) 
The Town of Sheboygan may approve off-site management measures, provided that all of the following conditions are met:
(a) 
The Town of Sheboygan determines that the post-construction runoff is covered by a stormwater management system plan that is approved by the Town of Sheboygan and that contains management requirements consistent with the purpose and intent of this article.
(b) 
The off-site facility meets all of the following conditions:
[1] 
The facility is in place.
[2] 
The facility is designed and adequately sized to provide a level of stormwater control equal to or greater than that which would be afforded by on-site practices meeting the performance standards of this article.
[3] 
The facility has a legally obligated entity responsible for its long-term operation and maintenance.
(3) 
Where a regional treatment option exists such that the Town of Sheboygan exempts the applicant from all or part of the minimum on-site stormwater management requirements, the applicant shall be required to pay a fee in an amount determined in negotiation with the Town of Sheboygan. In determining the fee for post-construction runoff, the Town of Sheboygan shall consider an equitable distribution of the cost for land, engineering design, construction, and maintenance of the regional treatment option.
G. 
Additional requirements. The Town of Sheboygan may establish stormwater management requirements more stringent than those set forth in this article if the administering authority determines that the requirements are needed to control stormwater quantity or control flooding, comply with federally approved total maximum daily load requirements, or control pollutants associated with existing development or redevelopment.
A. 
Permit required. No responsible party may undertake a land-disturbing construction activity without receiving a post-construction runoff permit from the Town of Sheboygan prior to commencing the proposed activity.
B. 
Permit application and fees. Unless specifically excluded by this article, any responsible party desiring a permit shall submit to the Town of Sheboygan a permit application on a form provided by the Town of Sheboygan for that purpose.
(1) 
Unless otherwise excluded by this article, a permit application must be accompanied by a stormwater management plan, a maintenance agreement and a nonrefundable permit administration fee.
Table 1
Land Development Activity
Permita
Stormwater Management Plan
Grading Planb
Maintenance Agreementc
Fee
Agricultural use
—
—
—
—
—
Nonresidential
X
X
X
X
X
1- and 2-family residential
X
—
X
—
X
Multifamily residential
X
X
X
X
X
Subdivision development
X
X
X
X
X
a
Combined grading and drainage plan to be reviewed by Town staff.
b
Unless previously provided by CSM, subdivision design, or other.
c
If stormwater management plan requires maintainable structures.
(2) 
The stormwater management plan shall be prepared to meet the requirements of §§ 266-8 and 266-10, the maintenance agreement shall be prepared to meet the requirements of § 266-11, the financial guarantee shall meet the requirements of § 266-12, and fees shall be those established by the Town of Sheboygan as set forth in § 266-13.
C. 
Permit application review and approval. The Town of Sheboygan shall review any permit application that is submitted with a stormwater management plan, maintenance agreement, and the required fee. The following approval procedure shall be used:
(1) 
Within 30 business days of the receipt of a complete permit application, including all items as required by Subsection B, the Town of Sheboygan shall inform the applicant whether the application, stormwater management plan and maintenance agreement are approved or disapproved based on the requirements of this article.
(2) 
If the stormwater permit application, stormwater management plan and maintenance agreement are approved, or if an agreed upon payment of fees in lieu of stormwater management practices is made, the Town of Sheboygan shall issue the permit.
(3) 
If the stormwater permit application, stormwater management plan or maintenance agreement is disapproved, the Town of Sheboygan shall detail, in writing, the reasons for disapproval.
(4) 
The Town of Sheboygan may request additional information from the applicant. If additional information is submitted, the Town of Sheboygan shall have 30 business days from the date the additional information is received to inform the applicant that the stormwater management plan and maintenance agreement are either approved or disapproved.
(5) 
Failure by the Town of Sheboygan to inform the permit applicant of a decision within 30 business days of a required submittal shall be deemed to mean approval of the submittal and the applicant may proceed as if a permit had been issued.
D. 
Permit requirements. All permits issued under this article shall be subject to the following conditions, and holders of permits issued under this article shall be deemed to have accepted these conditions. The Town of Sheboygan may suspend or revoke a permit for violation of a permit condition, following written notification of the responsible party. An action by the Town of Sheboygan to suspend or revoke this permit may be appealed in accordance with § 266-15.
(1) 
Compliance with this permit does not relieve the responsible party of the responsibility to comply with other applicable federal, state, and local laws and regulations.
(2) 
The responsible party shall design and install all structural and nonstructural stormwater management measures in accordance with the approved stormwater management plan and this permit.
(3) 
The responsible party shall notify the Town of Sheboygan at least three business days before commencing any work in conjunction with the stormwater management plan, and within five business days upon completion of the stormwater management practices. If required as a special condition under § 266-9E, the responsible party shall make additional notification according to a schedule set forth by the Town of Sheboygan so that practice installations can be inspected during construction.
(4) 
Practice installations required as part of this article shall be certified "as built" or "record" drawings by a licensed professional engineer. Completed stormwater management practices must pass a final inspection by the Town of Sheboygan or its designee to determine if they are in accordance with the approved stormwater management plan and ordinance. The Town of Sheboygan or its designee shall notify the responsible party, in writing, of any changes required in such practices to bring them into compliance with the conditions of this permit.
(5) 
The responsible party shall notify the Town of Sheboygan of any significant modifications it intends to make to an approved stormwater management plan. The Town of Sheboygan may require that the proposed modifications be submitted to it for approval prior to incorporation into the stormwater management plan and execution by the responsible party.
(6) 
The responsible party shall maintain all stormwater management practices in accordance with the stormwater management plan until the practices either become the responsibility of the Town of Sheboygan, or are transferred to subsequent private owners as specified in the approved maintenance agreement.
(7) 
The responsible party authorizes the Town of Sheboygan to perform any work or operations necessary to bring stormwater management measures into conformance with the approved stormwater management plan, and consents to a special assessment or charge against the property as authorized under Ch. 66, Wis. Stats., Subch. VII, or to charging such costs against the financial guarantee posted under § 266-12.
(8) 
If so directed by the Town of Sheboygan, the responsible party shall repair at the responsible party's own expense all damage to adjoining municipal facilities and drainage ways caused by runoff, where such damage is caused by activities that are not in compliance with the approved stormwater management plan.
(9) 
The responsible party shall permit property access to the Town of Sheboygan or its designee for the purpose of inspecting the property for compliance with the approved stormwater management plan and this permit.
(10) 
Where site development or redevelopment involves changes in direction, increases in peak rate and/or total volume of runoff from a site, the Town of Sheboygan may require the responsible party to make appropriate legal arrangements with affected property owners concerning the prevention of endangerment to property or public safety.
(11) 
The responsible party is subject to the enforcement actions and penalties detailed in § 266-14, if the responsible party fails to comply with the terms of this permit.
E. 
Permit conditions. Permits issued under this subsection may include conditions established by Town of Sheboygan in addition to the requirements needed to meet the performance standards in § 266-8 or a financial guarantee as provided for in § 266-12.
F. 
Permit duration. Permits issued under this section shall be valid from the date of issuance through the date the Town of Sheboygan notifies the responsible party that all stormwater management practices have passed the final inspection required under § 266-9D(4).
A. 
Stormwater management plan requirements. The stormwater management plan required under § 266-8B shall contain at a minimum the following information:
(1) 
Name, address, and telephone number for the following or their designees: landowner; developer; project engineer for practice design and certification; person(s) responsible for installation of stormwater management practices; and person(s) responsible for maintenance of stormwater management practices prior to the transfer, if any, of maintenance responsibility to another party.
(2) 
A proper legal description of the property proposed to be developed, referenced to the U.S. Public Land Survey system or to block and lot numbers within a recorded land subdivision plat.
(3) 
Predevelopment site conditions, including:
(a) 
One or more site maps at a scale of not less than one inch equals 100 feet. The site maps shall show the following: site location and legal property description; predominant soil types and hydrologic soil groups; existing cover type and condition; topographic contours of the site at a scale not to exceed one foot; topography and drainage network, including enough of the contiguous properties to show runoff patterns onto, through, and from the site; watercourses that may affect or be affected by runoff from the site; flow path and direction for all stormwater conveyance sections; watershed boundaries used in hydrology determinations to show compliance with performance standards; lakes, streams, wetlands, channels, ditches, and other watercourses on and immediately adjacent to the site; limits of the 100-year floodplain; and locations of wells and wellhead protection areas covering the project area and delineated pursuant to § NR 811.12, Wis. Adm. Code.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
(b) 
Hydrology and pollutant loading computations as needed to show compliance with performance standards. All major assumptions used in developing input parameters shall be clearly stated. The geographic areas used in making the calculations shall be clearly cross-referenced to the required map(s).
(4) 
Post-development site conditions, including:
(a) 
Explanation of the provisions to preserve and use natural topography and land cover features to minimize changes in peak flow runoff rates and volumes to surface waters and wetlands.
(b) 
Explanation of any restrictions on stormwater management measures in the development area imposed by wellhead protection plans and ordinances.
(c) 
One or more site maps at a scale of not less than one inch equals 100 feet showing the following: post-construction pervious areas, including vegetative cover type and condition; impervious surfaces including all buildings, structures, and pavement; post-construction topographic contours of the site at a scale not to exceed two feet if the maximum elevation difference on the site is greater than 100 feet or at a contour interval not to exceed one foot otherwise; post-construction drainage network, including enough of the contiguous properties to show runoff patterns onto, through, and from the site; locations and dimensions of drainage easements; locations of maintenance easements specified in the maintenance agreement; flow path and direction for all stormwater conveyance sections; locations and types of all stormwater management conveyance and treatment practices, including the on-site and off-site tributary drainage areas; locations and types of conveyance systems that will carry runoff from the drainage and treatment practices to the nearest adequate outlet, such as a curbed street, storm drain, or natural drainage way; watershed boundaries used in hydrology and pollutant loading calculations; and any changes to lakes, streams, wetlands, channels, ditches, and other watercourses on and immediately adjacent to the site.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
(d) 
Hydrology and pollutant loading computations as needed to show compliance with performance standards. The computations shall be made for each discharge point in the development, and the geographic areas used in making the calculations shall be clearly cross-referenced to the required map(s).
(e) 
Results of investigations of soils and groundwater required for the placement and design of stormwater management measures. Detailed drawings including cross-sections and profiles of all permanent stormwater conveyance and treatment practices.
(5) 
A description and installation schedule for the stormwater management practices needed to meet the performance standards in § 266-8.
(6) 
A maintenance plan developed for the life of each stormwater management practice, including the required maintenance activities and maintenance activity schedule.
(7) 
Cost estimates for the construction, operation, and maintenance of each stormwater management practice.
(8) 
Other information requested in writing by the Town of Sheboygan to determine compliance of the proposed stormwater management measures with the provisions of this article.
(9) 
All site investigations, plans, designs, computations, and drawings shall be certified by a licensed professional engineer to be prepared in accordance with accepted engineering practice and requirements of this article.
B. 
Alternate requirements. The Town of Sheboygan may prescribe alternative submittal requirements for applicants seeking an exemption to on-site stormwater management performance standards under § 266-8E.
A. 
Maintenance agreement required. The maintenance agreement required under § 266-9B for stormwater management practices shall be an agreement between the Town of Sheboygan and the responsible party to provide for maintenance of stormwater practices beyond the duration period of this permit. The maintenance agreement shall be filed with the County Register of Deeds as a property deed restriction so that it is binding upon all subsequent owners of the land served by the stormwater management practices.
B. 
Agreement provisions. The maintenance agreement shall contain the following information and provisions and be consistent with the maintenance plan required by § 266-10A(6):
(1) 
Identification of the stormwater facilities and designation of the drainage area served by the facilities.
(2) 
A schedule for regular maintenance of each aspect of the stormwater management system consistent with the stormwater management plan required under § 266-8B.
(3) 
Identification of the responsible party(s), organization or city, county, town or village responsible for long-term maintenance of the stormwater management practices identified in the stormwater management plan required under § 266-8B.
(4) 
Requirement that the responsible party(s), organization, or city, county, Town or village shall maintain stormwater management practices in accordance with the schedule included in Subsection B(2).
(5) 
Authorization for the Town of Sheboygan to access the property to conduct inspections of stormwater management practices as necessary to ascertain that the practices are being maintained and operated in accordance with the agreement.
(6) 
A requirement on the Town of Sheboygan to maintain public records of the results of the site inspections, to inform the responsible party responsible for maintenance of the inspection results, and to specifically indicate any corrective actions required to bring the stormwater management practice into proper working condition.
(7) 
Agreement that the party designated under Subsection B(3), as responsible for long-term maintenance of the stormwater management practices, shall be notified by the Town of Sheboygan of maintenance problems which require correction. The specified corrective actions shall be undertaken within a reasonable time frame as set by the Town of Sheboygan.
(8) 
Authorization of the Town of Sheboygan to perform the corrected actions identified in the inspection report if the responsible party designated under Subsection B(3) does not make the required corrections in the specified time period. The Town of Sheboygan shall enter the amount due on the tax rolls and collect the money as a special charge against the property pursuant to Ch. 66, Wis. Stats., Subch. VII.
A. 
Establishment of the guarantee. The Town of Sheboygan may require the submittal of a financial guarantee, the form and type of which shall be acceptable to the Town of Sheboygan. The financial guarantee shall be in an amount determined by the Town of Sheboygan to be the estimated cost of construction and the estimated cost of maintenance of the stormwater management practices during the period which the designated party in the maintenance agreement has maintenance responsibility. The financial guarantee shall give the Town of Sheboygan the authorization to use the funds to complete the stormwater management practices if the responsible party defaults or does not properly implement the approved stormwater management plan, upon written notice to the responsible party by the Town of Sheboygan that the requirements of this article have not been met.
B. 
Conditions for release. Conditions for the release of the financial guarantee are as follows:
(1) 
The administering authority shall release the portion of the financial guarantee established under this section, less any costs incurred by the administering authority to complete installation of practices, upon submission of "as built plans" or "record" drawings by a licensed professional engineer. The Town of Sheboygan may make provisions for a partial pro rata release of the financial guarantee based on the completion of various development stages.
(2) 
The administering authority shall release the portion of the financial guarantee established under this section to assure maintenance of stormwater practices, less any costs incurred by the Town of Sheboygan, at such time that the responsibility for practice maintenance is passed on to another entity via an approved maintenance agreement.
The fees referred to in other sections of this article shall be established by the Town of Sheboygan and may from time to time be modified by resolution.
A. 
Any land-disturbing construction activity or post-construction runoff initiated after the effective date of this article by any person, firm, association, or corporation subject to this article's provisions shall be deemed a violation unless conducted in accordance with the requirements of this article.
B. 
The Town of Sheboygan shall notify the responsible party by certified mail of any noncomplying land-disturbing construction activity or post-construction runoff. The notice shall describe the nature of the violation, remedial actions needed, a schedule for remedial action, and additional enforcement action which may be taken.
C. 
Upon receipt of written notification from the Town of Sheboygan under Subsection B, the responsible party shall correct work that does not comply with the stormwater management plan or other provisions of this permit. The responsible party shall make corrections as necessary to meet the specifications and schedule set forth by the Town of Sheboygan in the notice.
D. 
If the violations to a permit issued pursuant to this article are likely to result in damage to properties, public facilities, or waters of the state, the Town of Sheboygan may enter the land and take emergency actions necessary to prevent such damage. The costs incurred by the Town of Sheboygan plus interest and legal costs shall be billed to the responsible party.
E. 
The Town of Sheboygan is authorized to post a stop-work order on all land-disturbing construction activity that is in violation of this article, or to request the municipal attorney to obtain a cease-and-desist order in any court with jurisdiction.
F. 
The Town of Sheboygan may revoke a permit issued under this article for noncompliance with this article's provisions.
G. 
Any permit revocation, stop-work order, or cease-and-desist order shall remain in effect unless retracted by the Town of Sheboygan or by a court with jurisdiction.
H. 
The Town of Sheboygan is authorized to refer any violation of this article, or a stop-work order or cease-and-desist order issued pursuant to this article, to the Municipal Attorney for the commencement of further legal proceedings in any court with jurisdiction.
I. 
Any person, firm, association, or corporation who does not comply with the provisions of this article shall be subject to a forfeiture of not less than $500 nor more than $1,000 per offense, together with the costs of prosecution. Each day that the violation exists shall constitute a separate offense.
J. 
Compliance with the provisions of this article may also be enforced by injunction in any court with jurisdiction. It shall not be necessary to prosecute for forfeiture or a cease-and-desist order before resorting to injunctional proceedings.
K. 
When the Town of Sheboygan determines that the holder of a permit issued pursuant to this article has failed to follow practices set forth in the stormwater management plan, or has failed to comply with schedules set forth in said stormwater management plan, the administering authority or a party designated by the administering authority may enter upon the land and perform the work or other operations necessary to bring the condition of said lands into conformance with requirements of the approved stormwater management plan. The administering authority shall keep a detailed accounting of the costs and expenses of performing this work. These costs and expenses shall be deducted from any financial security posted pursuant to § 266-12. Where such a security has not been established, or where such a security is insufficient to cover these costs, the costs and expenses shall be entered on the tax roll as a special charge against the property and collected with any other taxes levied thereon for the year in which the work is completed.
A. 
Board of Zoning Appeals. The Board of Zoning Appeals, created pursuant to Chapter 335, Zoning, of the Town of Sheboygan Code, pursuant to Wis. Stats. § 60.65, shall hear and decide appeals where it is alleged that there is error in any order, decision or determination made by the Town of Sheboygan in administering this article. The Board shall also use the rules, procedures, duties, and powers authorized by statute in hearing and deciding appeals. Upon appeal, the Board may authorize variances from the provisions of this article that are not contrary to the public interest, and where, owing to special conditions, a literal enforcement of this article will result in unnecessary hardship.
B. 
Who may appeal. Appeals to the Board of zoning appeals may be taken by any aggrieved person or by an officer, department, board, or bureau of the Town of Sheboygan affected by any decision of the Town of Sheboygan.
[Adopted 2-21-2006 (Ch. 17 of the 1983 Code)]
A. 
This article is adopted by the Town Board of the Town of Sheboygan under the authority granted by Wis. Stats. § 60.627. This article supersedes all conflicting and contradictory illicit discharge detection and elimination regulations previously enacted under Wis. Stats. § 60.62. Except as specifically provided for in Wis. Stats. § 60.627, Wis. Stats. § 60.62 applies to this article and to any amendments to this article.
B. 
The provisions of this article are deemed not to limit any other lawful regulatory powers of the same governing body.
C. 
The Town Board of the Town of Sheboygan hereby designates the Director of Public Works to administer and enforce the provisions of this article.
D. 
The requirements of this article do not preempt more stringent illicit discharge detection and elimination requirements that may be imposed by Wisconsin Department of Natural Resources (WDNR) administrative rules, permits or approvals, including those authorized under §§ 281.16 and 283.33, Wis. Stats.
A. 
The Town of Sheboygan's municipal separate storm sewer system (MS4) consists of municipally owned facilities where stormwater is collected and/or conveyed, including, but not limited to, any roads with drainage systems, municipal streets, gutters, curbs, inlets, piped storm drains, pumping facilities, retention and detention basins, natural and human-made or altered drainage channels, reservoirs, and other drainage structures.
B. 
The Town Board of the Town of Sheboygan finds illicit discharges can carry pollutants to the Waters of the State in the Town of Sheboygan through its MS4.
C. 
The purposes of this article are:
(1) 
To regulate the contribution of pollutants to the MS4.
(2) 
To prohibit illicit connections and discharges to the MS4.
(3) 
To establish legal authority to carry out all inspection, surveillance and monitoring procedures necessary to ensure compliance with this article.
A. 
This article applies to all water entering the MS4 generated on any developed and undeveloped lands, unless explicitly exempted by the Town of Sheboygan.
B. 
This article is not applicable to activities conducted by a state agency, as defined under Wis. Stats. § 227.01(1). This includes:
(1) 
The Office of District Attorney, which is subject to the state plan promulgated or a memorandum of understanding entered into under Wis. Stats. § 281.33(2).
(2) 
The Wisconsin Department of Transportation (WisDOT) that entered into a memorandum of understanding with the WDNR that satisfies Wis. Stats. § 281.33(2), such that activities directed and supervised by WisDOT are exempt from this article.
C. 
The standards set forth herein and promulgated pursuant to this article are minimum standards; therefore, this article does not intend or imply that compliance by any person will ensure that there will be no contamination, pollution, nor unauthorized discharge of pollutants.
D. 
Any person subject to an industrial or contraction activity WPDES 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 Town of Sheboygan prior to the allowing of discharges to the MS4.
This article shall be known as the "Illicit Discharge Detection and Elimination Ordinance for the Town of Sheboygan."
As used in this article, the following terms shall have the meanings indicated:
ADMINISTERING AUTHORITY
A governmental employee empowered under Wis. Stats. § 60.627, that is designated by the Town of Sheboygan to administer this article.
AGRICULTURAL LAND USE
Use of land for planting, growing, cultivating and harvesting of crops for human or livestock consumption and pasturing or yarding of livestock and has the same meaning as in Wis. Stats. § 281.16(1).
BEST MANAGEMENT PRACTICES or BMPs
Structural or nonstructural measures, practices, techniques, or devices employed to avoid or to minimize soil, sediment, or pollutants discharged directly or indirectly to waters of the state.
BUSINESS DAY
A day the office of the Town of Sheboygan is routinely and customarily open for business.
CEASE-AND-DESIST ORDER
A court issued order to halt land-disturbing construction activity that is being conducted without the required permit.
CLEAN WATER ACT
The federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), and any subsequent amendments thereto.
COMMERCIAL LAND USE
Use of land for the retain or wholesale sale of goods or services.
CONSTRUCTION ACTIVITY
Activities subject to erosion control and post-construction stormwater permits.
CONSTRUCTION SITE
An area where one or more land-disturbing construction activities occur, including areas that are part of a larger common plan of development or sale where multiple separate and distinct land-disturbing construction activities may be taking place at different times on different schedules but under one plan.
CONTROL PLAN
A written description of the number, locations, sizes, and other pertinent information of BMPs designed to meet the requirements of this article, submitted by the applicant for review and approval by the Town of Sheboygan.
GOVERNING BODY
The Town Board of the Town of Sheboygan.
HAZARDOUS MATERIALS
Any material, including any substance, waste, or combination thereof, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may cause or significantly contribute to a substantial present or potential hazard to human health, safety, property, or the environment when improperly treated, stored, transported, disposed of, or otherwise managed.
ILLEGAL DISCHARGE
Any illegal direct or indirect nonstormwater discharge to the MS4, except as exempted in § 266-21.
ILLICIT CONNECTION
Is defined as either of the following:
A. 
Any drain or conveyance, whether on the surface or subsurface, that allows an illegal discharge to enter the MS4. This includes but is not limited to any conveyances that allow any nonstormwater discharge, including sewage, process wastewater, and wash water, to enter the MS4 and any connections to the MS4 from indoor drains and sinks, regardless of whether said drain or connection had been previously allowed, permitted, or approved by an authorized enforcement agency.
B. 
Any drain or conveyance connected from a commercial or industrial land use to the MS4 that has not been documented in plans, maps, or equivalent records and approved by an authorized enforcement agency.
INDUSTRIAL ACTIVITY
Activities subject to WPDES industrial permits as defined in 40 CFR 122.26(b)(14), or subject to Wisconsin Administrative Code § NR 216.20.
LAND USER
Any person operating, leasing, renting, or having made other arrangements with the landowner where the landowner authorizes use of his or her land.
LANDOWNER
Any person holding title to or having an interest in land.
MEP or MAXIMUM EXTENT PRACTICABLE
A level of implementing BMPs to achieve a performance standard specified in this article that takes into account the best available technology, cost effectiveness, and other competing issues, such as human safety and welfare, endangered and threatened resources, historic properties, and geographic features. MEP allows flexibility to meet the performance standards and may vary based on the performance standard and site conditions.
MS4 or MUNICIPAL SEPARATE STORM SEWER SYSTEM
Municipally owned facilities where stormwater is collected and/or conveyed, including, but not limited to, any roads with drainage systems, municipal streets, gutters, curbs, inlets, piped storm drains, pumping facilities, retention and detention basins, natural and human-made or altered drainage channels, reservoirs, and other drainage structures.
NONSTORMWATER DISCHARGE
Discharge to the MS4 that is not composed entirely of stormwater.
PERFORMANCE STANDARD
A narrative or measurable number specifying the minimum acceptable outcome for a facility or practice.
PERSON
Any individual, association, organization, partnership, firm, corporation or other entity recognized by law and acting as either the owner or as the owner's agent.
POLLUTANT
Has the meaning given in Wis. Stats. § 283.01(13), and means anything that causes or contributes to pollution. Pollutants may include, but are not limited to, 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, ordinances, and accumulations, so that same may cause or contribute to pollution; floatables; pesticides, herbicides, and fertilizers; hazardous substances and wastes; sewage, fecal coliform and pathogens; dissolved and particulate metals; animal wastes; wastes and residues that result from constructing a building or structure; and noxious or offensive matter of any kind.
POLLUTION
Has the meaning given in Wis. Stats. § 281.01(10).
RESPONSIBLE PARTY
Any entity holding fee title to the property or performing services to meet the performance standards of this article through a contract or other agreement.
RUNOFF
The rainfall, snowmelt, or irrigation water flowing over the ground surface via sheet or channelized flow.
SEDIMENT
Settleable solid material that is transported by runoff, suspended within runoff, or deposited by runoff away from its original location.
STORMWATER
Any surface flow, runoff, and drainage consisting entirely of water from any form of natural precipitation, and resulting from such precipitation.
STORMWATER POLLUTION PREVENTION PLAN or SWPPP
A document that describes the BMPs and activities to be implemented by a person or business to identify sources of pollution or contamination at a site and the actions to eliminate or reduce pollutant discharges to stormwater, stormwater conveyance systems, and/or receiving waters to the maximum extent practicable.
TECHNICAL STANDARD
A document that specifies design, predicted performance, and operation and maintenance specifications for a material, device, or method.
WASTEWATER
Any water or other liquid, other than uncontaminated stormwater, discharged from a facility.
WATERS OF THE STATE
Those portions of Lake Michigan and Lake Superior within boundaries of Wisconsin, and all lakes, bays, rivers, streams, springs, ponds, wells, impounding reservoirs, marshes, watercourses, drainage systems and other surface water or groundwater, natural or artificial, public or private, within the state or its jurisdiction, and has the same meaning given in Wis. Stats. § 281.01(18).
WISCONSIN POLLUTANT DISCHARGE ELIMINATION SYSTEM (WPDES) STORMWATER DISCHARGE PERMIT
A permit issued by the WDNR [as authorized by the EPA under authority delegated pursuant to 33 U.S.C. § 1342(b)] 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.
A. 
No person shall discharge or cause to be discharged into the MS4 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.
B. 
The commencement, conduct or continuance of any illegal discharge to the MS4 is prohibited, except as described as follows:
(1) 
The following discharges are exempt from discharge prohibitions established by this article: water line flushing or other potable water sources, landscape irrigation or lawn watering, diverted stream flows, rising groundwater, groundwater infiltration to storm drains, uncontaminated pumped groundwater, foundation or footing drains (not including active groundwater dewatering systems), crawl space pumps, air-conditioning condensation, springs, noncommercial washing of vehicles, natural riparian habitat or wetland flows, swimming pools (if dechlorinated less than one ppm chlorine), firefighting activities, and any other water source not containing pollutants.
(2) 
Discharges specified in writing by the authorized enforcement agency as being necessary to protect public health and safety.
(3) 
Dye testing is an allowable discharge, but requires a verbal notification to the authorized enforcement agency prior to the time of the test.
(4) 
The prohibition shall not apply to any nonstormwater discharge permitted under a WPDES permit, waiver, or waste discharge order issued to the discharger and administered under the authority of the WDNR, provided that the discharger 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.
A. 
The construction, use, maintenance or continued existence of illicit connections to the storm drain system is prohibited.
B. 
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.
C. 
A person is considered to be in violation of this article if the person connects a line conveying sewage to the MS4, or allows such a connection to continue.
The Town of Sheboygan may, without prior notice, suspend MS4 discharge access to a person when such suspension is necessary to stop an actual or threatened discharge that presents or may present imminent and substantial danger to the environment, to the health or welfare of persons, to the MS4, or to waters of the state. If the violator fails to comply with a suspension order issued in an emergency, the Town of Sheboygan may take such steps as deemed necessary to prevent or minimize damage to the MS4 or waters of the state, or to minimize danger to persons.
A. 
Any person discharging to the MS4 in violation of this article may have their MS4 access terminated if such termination would abate or reduce an illicit discharge. The Town of Sheboygan will notify a violator of the proposed termination of its MS4 access. The violator may petition the Town of Sheboygan for a reconsideration and hearing.
B. 
A person commits an offense if the person reinstates MS4 access to premises terminated pursuant to this section without the prior approval of the Town of Sheboygan.
Every person owning property that 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.
A. 
This section applies to all facilities that have stormwater discharges associated with industrial activity, including construction activity.
B. 
Access to facilities:
(1) 
The Town of Sheboygan shall be permitted to enter and inspect facilities subject to regulation under this article as often as may be necessary to determine compliance with this article. If a discharger has security measures in force that require proper identification and clearance before entry into its premises, the discharger shall make the necessary arrangements to allow access to representatives of the authorized enforcement agency.
(2) 
Facility operators shall allow the Town of Sheboygan 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 a WPDES permit to discharge stormwater, and the performance of any additional duties as defined by state and federal law.
(3) 
The Town of Sheboygan shall have the right to set up on any permitted facility such devices as are necessary in the opinion of the Town of Sheboygan to conduct monitoring and/or sampling of the facility's stormwater discharge.
(4) 
The Town of Sheboygan 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) 
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 Town of Sheboygan and shall not be replaced. The costs of clearing such access shall be borne by the operator.
(6) 
Unreasonable delays in allowing the Town of Sheboygan access to a permitted facility is a violation of a stormwater discharge permit and of this article. A person who is the operator of a facility with a WPDES permit to discharge stormwater associated with industrial activity commits an offense if the person denies the authorized enforcement agency reasonable access to the permitted facility for the purpose of conducting any activity authorized or required by this article.
(7) 
If the Town of Sheboygan 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 article, or that there is a need to inspect and/or sample as part of a routine inspection and sampling program designed to verify compliance with this article or any order issued hereunder, or to protect the overall public health, safety, and welfare of the community, then the authorized enforcement agency may seek issuance of a search warrant from any court of competent jurisdiction.
A. 
The Town of Sheboygan will adopt requirements identifying BMPs for any activity, operation, or facility that may cause or contribute to pollution or contamination of stormwater, the MS4, or waters of the state.
B. 
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. Any person responsible for a property or premises that is or may be the source of an illicit discharge may be required to implement, at said person's expense, additional structural and nonstructural BMPs to prevent the further discharge of pollutants to the municipal separate storm sewer system.
C. 
Compliance with all terms and conditions of a valid WPDES permit authorizing the discharge of stormwater associated with industrial activity, to the maximum extend practicable, shall be deemed compliance with the provisions of this section. These BMPs shall be a part of a SWPPP as necessary for compliance with requirements of the WPDES permit.
A. 
Notwithstanding other requirements of law, as soon as any person responsible for a facility or operation, or responsible for emergency response for a facility or operation, has information of any known or suspected release of materials that is resulting or may result in illegal discharges or pollutants discharging into stormwater, the MS4, or waters of the state, said person shall take all necessary steps to ensure the discovery, containment, and cleanup of such release. 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 authorized enforcement agency in person or by telephone or facsimile no later than the next business day.
B. 
Notification in person or by telephone shall be confirmed by written notice addressed and mailed to the Town of Sheboygan within three business days of the telephone notice.
C. 
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. 
Whenever the Town of Sheboygan finds that a person has violated a prohibition or failed to meet a requirement of this article, the Town of Sheboygan may order compliance by written notice of violation to the responsible person. Such notice may require without limitation:
(1) 
The performance of monitoring, analyses, and reporting;
(2) 
The elimination of illicit connections or discharges;
(3) 
That violating discharges, practices, or operations shall cease and desist;
(4) 
The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property;
(5) 
Payment of a fine to cover administrative and remediation costs; and
(6) 
The implementation of source control or treatment BMPs.
B. 
If abatement of a violation and/or restoration of affected property is required, the notice shall set forth a deadline within which such remediation or restoration must be completed. Said notice shall further advise that, should the violator fail to remediate or restore within the established deadline, the work will be done by a designated governmental agency or a contractor and the expense thereof shall be charged to the violator.
A. 
Any person receiving a notice of violation may appeal to the Town Board. The notice of appeal must be received within 10 working days from the date of the notice of violation. Hearing on the appeal before the appropriate authority or his/her designee shall take place within 30 working days from the date of receipt of the notice of appeal. The decision of the Town Board or their designee shall be final.
B. 
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 within 10 working days of the decision of the Town Board upholding the decision, the representatives of the Town of Sheboygan shall enter upon the subject private property and are authorized to take any and all measures necessary to abate the violation and/or restore the property. It shall be unlawful for any person, owner, agent or person in possession of any premises to refuse to allow the Town of Sheboygan or designated contractor to enter upon the premises for the purposes set forth above.
C. 
Within 60 working days after abatement of the violation, the owner of the property will be notified of the cost of abatement, including administrative costs. The property owner may file a written protest objecting to the amount of the assessment within 10 working days. If the amount due is not paid within a timely manner as determined by the decision of the Town Board or by the expiration of the time in which to file an appeal, the charges shall become a special assessment against the property and shall constitute a lien on the property for the amount of the assessment.
D. 
In lieu of enforcement proceedings, penalties, and remedies authorized by this article, the Town of Sheboygan may impose upon a violator alternative compensatory actions, such as storm drain stenciling, attendance at compliance workshops, watercourse cleanup, etc.
It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this article. If a person has violated or continues to violate the provisions of this article, the Town of Sheboygan may petition for a preliminary or permanent injunction restraining the person from activities that would create further violations or compelling the person to perform abatement or remediation of the violation.
In addition to the enforcement processes and penalties provided, any condition caused or permitted to exist in violation of any of the provisions of this article is a threat to public health, safety, and welfare, and is declared and deemed a nuisance, and may be summarily abated or restored at the violator's expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be taken.
Any person that has violated or continues to violate this article shall be liable to criminal prosecution to the fullest extent of the law.
A. 
The Town of Sheboygan may recover all attorneys' fees, court costs and other expenses associated with enforcement of this article, including sampling and monitoring expenses.
B. 
The remedies listed in this article are not exclusive of any other remedies available under any applicable federal, state or local law, and it is within the discretion of the authorized enforcement agency to seek cumulative remedies.
The several sections of this article are declared to be severable. If any section or portion thereof shall be declared by a decision of a court of competent jurisdiction to be invalid, unlawful, or unenforceable, such decision shall apply only to the specific section or portion thereof directly specified in the decision, and not affect the validity of all other provisions, sections or portion thereof of this article which shall remain in full force and effect. Any other ordinance whose terms conflict with the provisions of this article are hereby repealed as to those terms that conflict.