This chapter shall be known and may be cited as "The Ephrata Borough Stormwater Management (SWM) Ordinance."
The Borough Council of Ephrata Borough finds that:
A. 
Inadequate management of accelerated stormwater runoff resulting from development throughout a watershed increases flood flows and velocities, contributes to erosion and sedimentation, overtaxes the carrying capacity of existing streams and storm sewers, greatly increases the cost of public facilities to carry and control stormwater, undermines floodplain management and flood-control efforts in downstream communities, reduces groundwater recharge, threatens public health and safety, and increases nonpoint source pollution of water resources.
B. 
A comprehensive program of SWM, including reasonable regulation of development and activities causing accelerated runoff and based on the concepts of low-impact development (LID), is fundamental to the public health, safety, welfare, and the protection of the people of Ephrata Borough and all of the people of the commonwealth, their resources, and the environment.
C. 
Stormwater is an important water resource, which provides groundwater recharge for water supplies and supports the base flow of streams, which also protects and maintains surface water quality.
D. 
The use of green infrastructure and LID are intended to address the root cause of water quality impairment by using systems and practices which use or mimic natural processes to: 1) infiltrate and recharge, 2) evapotranspire, and/or 3) harvest and use precipitation near where it falls to earth. Green infrastructure practices and LID contribute to the restoration or maintenance of predevelopment hydrology.
E. 
Federal and state regulations require certain municipalities to implement a program of stormwater controls. These municipalities are required to obtain a permit for stormwater discharges from their municipal separate storm sewer systems (MS4) under the National Pollutant Discharge Elimination System (NPDES) program.
F. 
Riparian forest buffers enhance water quality by filtering pollutants in runoff, providing light control and temperature moderation, processing pollutants, increasing infiltration and providing channel and shoreline stability thus decreasing erosion (DEP Riparian Forest Buffer Guidance, November 27, 2010).
The purpose of this chapter is to restore and maintain the water quality of surface waters and waters of the commonwealth and further promote and ensure the health, safety, and welfare of the citizens within Ephrata Borough and its watershed by minimizing the harms and maximizing the benefits described in § 275-102 of this chapter, including reducing pollutants in discharges to the maximum extent practicable through provisions designed to:
A. 
Meet legal water quality requirements under state law, including regulations at 25 Pa. Code Chapter 93 to protect, maintain, reclaim, and restore the existing and designated uses of the waters of this commonwealth and the MS4 permit.
B. 
Preserve the natural drainage systems as much as practicable.
C. 
Manage stormwater runoff close to the source, reduce runoff volumes and mimic predevelopment hydrology.
D. 
Provide procedures and performance standards for stormwater planning and management.
E. 
Maintain groundwater recharge to prevent degradation of surface and groundwater quality and to otherwise protect water resources.
F. 
Prevent scour and erosion of stream banks and streambeds.
G. 
Provide proper operation and maintenance of all stormwater management facilities and best management practices (SWM BMPs) that are implemented within the Borough.
H. 
Provide standards to meet NPDES permit requirements.
I. 
Promote stormwater runoff prevention through the use of nonstructural best management practices (BMPs).
J. 
Provide a regulatory environment that supports the proportion, density and intensity of development called for in the comprehensive plan; allow for creative methods of improving water quality and managing stormwater runoff; and promote a regional approach to water resource management.
K. 
Help preserve and protect exceptional natural resources, and conserve and restore natural resource systems.
L. 
Promote stormwater management practices that emphasize infiltration, evaporation, and transpiration.
M. 
Effectively prohibit nonstormwater discharges, including spills, dumping, and disposal of materials other than stormwater to the MS4.
A. 
Primary authority. The Borough Council of Ephrata Borough is empowered to regulate these activities that affect runoff by authority of the Act of July 31, 1968, P.L. 805, No. 247, The Pennsylvania Municipalities Planning Code, as amended, the Act of October 4, 1978, P.L. 864 (Act 167), 32 P.S. § 680.1 et seq., as amended, the Stormwater Management Act and Act 394 of 1937, as amended, 35 P.S. § 691.1 et seq., the Pennsylvania Clean Streams Law.
B. 
Secondary authority. The Borough Council of Ephrata Borough also is empowered to regulate land use activities that affect runoff by the authority of the Act of July 31, 1968, P.L. 805, No. 247, The Pennsylvania Municipalities Planning Code, as amended. The Borough Council of Ephrata Borough also is empowered to regulate land use activities that affect stormwater impacts by the authority of the Borough Code, 8 Pa.C.S.A. § 101 et seq., as amended.
All regulated activities and all activities that may affect stormwater runoff, including land development and earth-disturbance activity, are subject to regulation by this chapter.
Any provisions of any ordinance of the Borough inconsistent with any of the provisions of this chapter is hereby repealed to the extent of the inconsistency only.
Should any section, provision or part thereof of this chapter be declared invalid by a court of competent jurisdiction, such decision shall not affect the validity of any of the remaining provisions of this chapter.
Approvals issued and actions taken pursuant to this chapter do not relieve the applicant of the responsibility to secure required permits or approvals for activities regulated by any other applicable code, rule, act, regulation, or ordinance.
Any permit or authorization issued or approved based on false, misleading or erroneous information provided by an applicant is void without the necessity of any proceedings for revocation. Any work undertaken or use established pursuant to such permit or other authorization is unlawful. No action may be taken by a board, agency or employee of the Borough purporting to validate such a violation.
Except as specifically provided by the Pennsylvania Stormwater Management Act, Act of October 4, 1978, P.L. 864, No. 167, as amended, 32 P.S. § 680.1 et seq., the making of any administrative decision by the Borough or any of its officials or employees shall not constitute a representation, guarantee or warranty of any kind by the Borough of the practicability or safety of any proposed structure or use with respect to damage from erosion, sedimentation, stormwater runoff, flood, or any other matter, and shall create no liability upon or give rise to any cause of action against the Borough and its officials and employees. The Borough Council of Ephrata Borough, by enacting and amending this chapter, does not waive or limit any immunity granted to the Borough and its officials and employees by the Governmental Immunity Act, 42 Pa. C.S.A. § 8541 et seq., and does not assume any liabilities or obligations.
Notwithstanding any provision(s) of this chapter, including exemptions, any landowner or any person engaged in the alteration or development of land which may affect stormwater runoff characteristics shall implement such measures as are reasonably necessary to prevent injury to health, safety, or other property. Such measures also shall include actions as are required to manage the rate, volume, direction, and quality of resulting stormwater runoff in a manner which otherwise adequately protects health, property, and water quality.
A. 
A financial security (bond, restricted account or letter of credit) for stormwater-related improvements shall be supplied by the developer in conjunction with the subdivision/land development approval, or in conjunction with the SWM site plan approval if no subdivision/land development plan is required.
B. 
The applicant shall provide a financial security to the Borough for the timely installation and proper construction of all SWM facilities, including E&S and pollution control BMPs, as required by the approved SWM site plan and this chapter and, as applicable, in accordance with the provisions of Sections 509, 510, and 511 of the MPC.
C. 
Where required, the developer shall file with the Borough Council of Ephrata Borough financial security in an amount sufficient to cover the costs of all stormwater management facilities required by this chapter. Without limitation as to other types of financial security which the Borough may approve, which approval shall not be unreasonably withheld, federal or commonwealth chartered lending institution irrevocable letters of credit and restrictive or escrow accounts in such lending institutions shall be deemed acceptable financial security. Such financial security shall be posted with a bonding company or federal or commonwealth chartered lending institution chosen by the developer, provided said bonding company or lending institution is authorized to conduct such business within the commonwealth. Such bond, or other security, shall provide for, and secure to the public, completion of all stormwater management facilities within one year of the date fixed on the final approved plan for such facilities. The amount of financial security shall be equal to 110% of the cost of the required facilities for which financial security is to be posted. The cost of the facilities shall be established by submission to the Borough Council of a bona fide bid or bids from the contractor or contractors chosen, the developer to complete the facilities, or in the absence of such bona fide bids, the cost shall be established by estimate and approved by the Borough. If the developer requires more than one year from the date of posting of the financial security to complete the required facilities, the amount of financial security may be increased by an additional 10% for each one-year period beyond the first anniversary date from posting of financial security, or to an amount not exceeding 110% of the cost of completing the required facilities, as reestablished on or about the expiration of the preceding one-year period by using the above bidding procedure. As the work of installing the required SWM facilities proceeds, the party posting the financial security may request the governing body to release or authorize the release, from time to time, such portions of the financial security necessary for payment to the contractor or contractors performing the work. Any such requests shall be in writing addressed to the Borough Council of Ephrata Borough, and the Borough Council of Ephrata Borough shall have 45 days from receipt of such request within which to allow the Borough Engineer to certify, in writing, to the Borough Council of Ephrata Borough that such portion of the work upon the SWM facilities has been completed in accordance with the approved SWM site plan. Upon such certification the Borough Council of Ephrata Borough shall authorize release by the bonding company or lending institution of an amount as estimated by the Borough Engineer fairly representing the value of the SWM facilities completed. The Borough Council of Ephrata Borough may, prior to final release at the time of completion and certification by its Engineer, require retention of 10% of the estimated cost of the remaining improvements to the aforesaid SWM facilities.
D. 
Schedule of inspections.
(1) 
During the construction of the development, the Borough Engineer or other authorized Borough representative may inspect the premises to determine that the work is progressing in compliance with the information provided on the approved SWM site plan and with all applicable Borough laws and ordinances.
(2) 
The cost for the conducting of inspections by the Borough Engineer or other authorized Borough representative shall be borne by the developer in accordance with the inspection fee adopted by resolution of the Borough Council.
(3) 
In the event the Borough Engineer or other authorized Borough official discovers that the work does not comply with the approved SWM site plan or any applicable laws or ordinances, the developer shall take all actions necessary to bring the work into compliance with the approved SWM site plan or other applicable laws or ordinances.
(4) 
If, at any stage of the work, the Borough Engineer or authorized representative determines that the soil or other conditions are not as stated or shown in the approved application, or that there has been a false statement or misrepresentation by the developer, the Borough Engineer or authorized representative may refuse to approve further work until a revised plan is submitted and approved.
E. 
Final inspection.
(1) 
When the developer has completed all the required facilities, he shall notify the Borough, in writing, by certified or registered mail, and shall send a copy of such notice to the Borough Engineer. The Borough shall, within 10 days after receipt of such notice, authorize the Borough Engineer to inspect the required facilities. The Borough Engineer shall promptly file a report, in writing, with the Borough and shall mail a copy of the report to the developer by certified or registered mail. The report shall be made and mailed within 30 days after receipt by the Borough Engineer of the aforesaid authorization by the Borough.
(2) 
Based on the report of the Borough Engineer, the Borough shall indicate approval or rejection of the stormwater management facilities, either in whole or in part; and if not approved, state reasons for the rejection. The Borough shall immediately notify the developer, in writing, by certified or registered mail, of its actions.
(3) 
If any portion of said improvements is not approved or are rejected by the Borough, the developer shall proceed to complete the same and, upon completion, the same procedure of notification outlined herein shall be followed.
F. 
In the event that any SWM facilities which may be required have not been installed as provided in the approved SWM site plan the Borough Council of Ephrata Borough is hereby granted the power to act on any corporate bond, or other security by appropriate legal and equitable remedies. If proceeds of such bond, or other security are insufficient to pay the cost of installing or making repairs or corrections to all the SWM facilities covered by said security, the Borough Council of Ephrata Borough may, at its option, install part of such SWM facilities and may institute appropriate legal or equitable action to recover the monies necessary to complete the remainder of the SWM facilities. All of the proceeds, whether resulting from the security or from any legal or equitable action brought against the developer, or both, shall be used solely for the installation of the SWM facilities covered by such security, and not for any other municipal purpose.
Any person or entity owning or occupying a premises through which the MS4 passes, or conducts activities subject to this chapter in which the MS4 passes or receives drainage from the site in which the activities are subject to this chapter, shall:
A. 
Keep and maintain that part of the premises reasonably free of trash, debris, sediment, and other obstacles which may pollute, contaminate, or restrict the flow of water to or through the MS4.
B. 
Maintain existing structures within or adjacent to the MS4 so that those structures will not become a hazard to the use, function, or physical integrity of the MS4.
C. 
Protect inlets or other entry points to the MS4 to the maximum extent practicable in which activities, equipment, or materials could result in the discharge of a pollutant or a nonstormwater discharge.
Any person or entity engaged in activities which may result in discharges to the MS4 shall, to the maximum extent practicable, undertake all measures to reduce the risk of nonstormwater discharges and polluted discharges. The following requirements shall apply:
A. 
Every person or entity undertaking an activity or use of a premise that may cause contribute to stormwater pollution or contamination, illicit discharges, or nonstormwater discharges to the MS4 shall implement structural and/or nonstructural BMPs to reduce or prevent a polluted discharge. BMPs shall be maintained routinely throughout the life of the activity.
If the Borough determines that any requirement under this chapter cannot be achieved for a particular regulated activity, the Borough may, after an evaluation of alternatives, approve measures other than those in this chapter, subject to the following:
A. 
Waivers or modifications of the requirements of this chapter may be approved by the Borough if enforcement will exact undue hardship because of peculiar conditions pertaining to the land in question, provided that the modifications will not be contrary to the public interest and that the purpose of the Ordinance is preserved. Cost or financial burden shall not be considered a hardship. Modification may be considered if an alternative standard or approach will provide equal or better achievement to the maximum extent practicable of the purpose of the ordinance. A request for waiver or modifications shall be in writing and accompany the stormwater management site plan submission. The request shall provide the facts on which the request is based, the provision(s) of the ordinance involved and the proposed modification.
B. 
No waiver or modification of any regulated stormwater activity involving earth disturbance greater than or equal to one acre may be granted by the Borough unless that action is approved in advance by the Department of Environmental Protection (DEP) or the delegated county conservation district.
C. 
The provisions of this chapter not relating to water quality are intended as minimum standards for the protection of the public health, safety, and welfare. The Borough reserves the right to modify or to extend them conditionally in individual cases as may be necessary in the public interest; provided, however, that such variation shall not have the effect of nullifying the intent and purpose of this chapter, and that the applicant shows that to the satisfaction of the Borough that the applicable regulation is unreasonable, or will cause undue hardship, or that an alternative proposal will allow for equal or better results. The list of such modifications, along with an explanation of and justification for each modification, shall be included on the plan. This section does not apply during an enforcement action.
D. 
In granting waivers/modifications for provisions of this chapter not relating to water quality, the Borough may impose such conditions as will, in its judgment, secure substantially the objectives of the standards and requirements of this chapter.