(a)
The Congress of the United States has amended the Clean Water Act
of 1972[1] to reduce pollutants discharged into the waters of the
United States by extending National Pollutant Discharge Elimination
System (hereinafter "NPDES") requirements to regulate stormwater and
urban runoff discharge from land disturbance and construction activities
into the City's stormwater drainage systems.
[1]
Editor's Note: See 33 U.S.C. § 1251 et seq.
(b)
The City of Mission Woods is subject to the NPDES requirements of
federal law as an operator of a small municipal separate storm sewer
system (MS4), and the City is therefore obligated by federal law to
develop, implement, and enforce minimum post-construction stormwater
quality treatment standards in compliance with the City's Kansas
water pollution control general MS4 permit.
(c)
The purpose of this article shall be to establish post-construction
minimum stormwater management requirements and controls on any new
development or redevelopment projects that disturb greater than or
equal to one acre. This article also will establish requirements for
long-term maintenance of structural controls within the City for drainages
into the municipal separate storm sewer system (MS4) and/or into surface
waters. This article seeks to meet this purpose through the following
objectives:
(1)
Minimize increases in stormwater runoff from any development
in order to reduce non-point-source pollution, siltation, and stream
bank erosion and maintain the integrity of stream channels;
(2)
Minimize increases in non-point-source pollution caused by stormwater
runoff from development which would otherwise degrade local water
quality, particularly if receiving water bodies are classified as
impaired on the current version of the 303d listing of impaired waters
in Kansas as identified by the Kansas Department of Health and Environment
(KDHE); and
(3)
Reduce stormwater runoff rates, soil erosion, and non-point-source
pollution, wherever possible, through stormwater quality best management
practices (BMPs) and ensure that these BMPs are properly maintained
and pose no threat to public safety.
(d)
Within this article, the term "stormwater quality facility" shall
mean BMPs that are implemented or constructed in order to comply with
this article.
In their interpretation and application, the provisions of this
article are hereby adopted as the minimum requirements for the promotion
of the public health, safety, and general welfare. Whenever the requirements
of this article are at variance with the requirements of any lawfully
adopted statute, ordinance, resolution, regulation, rule, or other
provision of law, the most-restrictive, or that imposing the higher
standard, shall govern.
This article shall not be construed as abating any action now
pending under, or by virtue of, prior existing regulations; or as
discontinuing, abating, modifying, or altering any penalty accruing
or about to accrue; or as affecting the liability of any person; or
as vacating or annulling any rights obtained by any person by lawful
action of the City, except as shall be expressly provided for in this
article.
The requirements set forth in this article establish minimum
requirements which must be implemented with good engineering practice
and workmanship. Use of these requirements shall not constitute a
representation, guaranty or warranty of any kind by the City, or its
officers and employees, of the adequacy or safety of any post-construction
stormwater quality facility or use of land, nor shall the acceptance
of a preliminary or final stormwater quality facility or the issuance
of any City permit imply that the land uses permitted will be free
from adverse impacts to stormwater quality. This article, therefore,
shall not create liability on the part of the City or any officer
or employee with respect to any legislative or administrative decision
lawfully made hereunder.
The provisions of this article shall extend and apply to all
land within the corporate limits of the City, with the following conditions:
(a)
The provisions of this article shall apply to all activities that
meet the definition of "development" in § 15-101 et seq.
of the Code of the City of Mission Woods and disturb an area equal
to or greater than one acre in area, and shall also include projects
of less than one acre that are part of a larger common plan of development
or sale.
(b)
Notwithstanding any other requirements of this article, this article
shall not apply, unless superseded by state or federal regulation,
to properties on which a preliminary plat has been approved by the
Planning Commission prior to February 14, 2008, and a final plat containing
a portion of that plat has been recorded in the Johnson County Office
of Records and Tax Administration prior to February 14, 2009. If public
improvement or stormwater management permits are not obtained for
all parts of the development within two years of the final plat approval,
all requirements of this article shall apply to all subsequent construction
permits, and plats and plans shall be revised accordingly.
(c)
This article shall not apply to a site plan approved by the Planning
Commission prior to February 14, 2008, and for which a building permit
has been obtained and construction begun prior to January 1, 2010.
(d)
The provisions of this article shall apply to City-administered street
construction as directed by the governing body at the completion of
preliminary plans and studies for these projects.
(a)
Unless specifically stated and amended by a formal written policy
statement issued by the Director, all stormwater quality facilities
required or constructed within the City shall be designed and constructed
in accordance with the latest edition of the Mission Woods Design
Standards. In addition, there may be a reduced treatment requirement
than is otherwise indicated on all developments that have a gross
site area of less than five acres and are otherwise subject to this
article. The Mission Woods Design Standards are hereby incorporated
by reference into this article.
(b)
If hydrologic or topographic conditions warrant greater control than
provided by the minimum control requirements set forth in the Mission
Woods Design Standards, the Director may impose additional requirements
deemed necessary to control the pollutants in stormwater runoff. It
shall be unlawful for any person to fail to comply with any additional
requirements imposed by the Director as necessary to control the pollutants.
In accordance with the design criteria and this article, the
applicant shall submit all preliminary and final studies, plans, and
specifications prior to receiving a stormwater management permit.
Prior to commencing construction of a stormwater quality facility,
a professional engineer shall submit a certification stating that
the final stormwater management studies, construction plans, and specifications
for constructing required stormwater quality facilities are in conformance
with the standards, requirements, and specifications of this article.
The certifying professional engineer shall demonstrate conformance
to the qualifications enumerated in the Mission Woods Design Standards.
Certification shall be submitted prior to issuing a stormwater management
permit for improvements required by this article. If the Director
finds that a proposed stormwater quality facility(ies) will not conform
to accepted standards, the Director shall issue a written notice of
disapproval.
(a)
A stormwater management permit shall be required for the construction
of all stormwater quality facilities within the City. Upon acceptance
of the final stormwater management plan, construction plans, and specifications,
and payment of a fee to be set administratively by the City, the applicant
shall submit a copy of the contractor's bid proposal identifying
the total construction cost of the stormwater quality facility to
the Director, who shall review the proposal and determine the amount
required for performance and maintenance sureties. An application
for the stormwater management permit for facilities required by this
article shall be submitted to the Director with written documentation
of the performance and maintenance surety.
(b)
The applicant shall post a performance and maintenance bond, cash
escrow paid to an approved escrow agent, or letter of credit from
a bank in the amount of 125% of the total construction cost of the
facility. The surety shall contain forfeiture provisions for failure
to complete work specified in the stormwater management plan. The
performance and maintenance escrow shall be released in full after
a three-year period following notice of acceptance of the stormwater
quality facility. Provisions for a partial pro-rata release of the
performance security based on issuance of a notice of acceptance for
the completed stormwater quality facility may be done at the discretion
of the Director. However, the remaining amount of the surety shall
at no time be less than 50% of the actual construction cost of the
stormwater quality facility and shall be maintained until released
by the Director following the three-year maintenance period.
(c)
Whenever necessary, the City may engage professionals necessary to
administer the requirements of this enactment and the City's
other stormwater ordinances and regulations. The City may, in its
reasonable discretion, include the costs of such professionals as
part of the requirements of a stormwater management permit or other
permits or requirements of the City, and such costs may be required
to be paid by an applicant.
All stormwater quality facilities shall be located in a separate
tract dedicated for this purpose. If the stormwater quality facility
serves lands from only one lot and is located on the lot served, the
facility may alternatively be located in an easement dedicated for
this purpose. In all cases, the tract or easement shall include provisions
for access from a public right-of-way to the stormwater quality facility
by landowners legally responsible for the facility and/or the Director
for periodic inspection and maintenance of the treatment facility.
All tract and easement uses and restrictions shall be binding on future
landowners on which the stormwater quality facility is located, and
all easements or tracts shall be recorded by the applicant in the
land records.
Upon acceptance of the applicant's assurances of performance
and maintenance as provided in this article and after all easements
have been dedicated, accepted, and recorded, the Director may issue
a stormwater management permit for facilities required by this article.
The permit shall set forth the terms and conditions of the approved
stormwater management plan.
During the three-year maintenance period following the date
of completion and acceptance by the Director of the work embraced
by this article, the permit holder shall make all needed repairs arising
out of defective workmanship or materials which, in the judgment of
the Director or the certifying professional engineer, become necessary
during the maintenance period. If, within 10 days after the mailing
of a written notice, the permit holder shall neglect to make or undertake
with due diligence to make these repairs, the City is hereby authorized
to make such repairs at the permit holder's expense; provided,
however, that in case of an emergency where, in the judgment of the
Director, a delay would cause serious loss, hazard, or damage, such
repairs may be made without prior notice being sent to the permit
holder, and the permit holder shall pay the cost thereof.
(a)
The permit holder shall notify the Director before beginning construction
of any stormwater quality facility. The permit holder shall keep the
Director advised as to the progress of the work and any changes in
the schedule.
(b)
Following completion of construction activities for the stormwater
quality facility, the Director will issue a notice of acceptance only
upon submission of "as-built plans," as indicated herein, and written
certification by a qualified professional engineer that the stormwater
quality facility has been installed in accordance with the approved
plan and other applicable provisions of this article.
Prior to the Director issuing a written notice of acceptance,
the permit holder shall submit an "as-built" or corrected plan showing
in detail all construction changes from the approved plans and specifications,
and furnish certification by a qualified professional engineer to
the Director that the materials and construction of the stormwater
quality facility fully comply with the construction plans and specifications
and the provisions and intent of this article, and that the facility
is fully functional.
(a)
Maintenance Agreement.
(1)
Prior to the issuance of a stormwater management permit for
property for which a stormwater quality facility is required, the
landowner shall execute an inspection and maintenance agreement binding
on all subsequent landowners of land served by a stormwater quality
facility. Such agreement shall provide for access to the facility
at reasonable times for regular or occasional inspections by the Director
to ensure that the facility is maintained in proper working condition
to meet design standards.
(2)
The agreement shall be recorded by the applicant and/or landowner
in the land records of the county.
(3)
The agreement shall also provide that if, after notice by the
Director to correct a violation requiring maintenance work, satisfactory
corrections are not made by the landowner(s) within a reasonable period
of time (30 days maximum), the City may perform all necessary work
to place the facility in proper working condition. The landowner(s)
of the lands served by the facility, excluding the public right-of-way,
shall be assessed the cost of the work, including administrative costs,
materials, personnel, and any penalties. Costs shall be proportioned
to each landowner based on a ratio of the area of land owned to the
total area of land assessed. This assessment may be accomplished by
placing a special assessment on the property(ies), which may be placed
on the tax bill and collected in the same manner as ordinary taxes.
(b)
Maintenance Responsibility.
(1)
The landowner of the property on which the stormwater quality
facility has been constructed pursuant to this article, or any other
person or agent in control of such property, shall maintain in good
condition and promptly repair and restore all grade surfaces, walls,
drains, dams and structures, vegetation, erosion and sediment control
measures, and other protective devices. Such repairs or restoration
and maintenance shall be in accordance with approved plans.
(2)
A maintenance schedule shall be developed for any stormwater
quality facility and shall state the maintenance to be completed,
the time period for completion, and who shall perform the maintenance.
This maintenance schedule shall be printed on the approved stormwater
management plan, incorporated into the maintenance agreement, and
shall be followed by subsequent responsible parties.
(3)
Annual inspections of stormwater quality facilities shall be
an integral part of the maintenance plan and schedule and shall be
conducted annually by a qualified professional engineer.
On or before the first day of October of each year, the person
responsible for maintaining each stormwater quality facility shall
furnish certification by a qualified professional engineer, as defined
in the Mission Woods Design Standards, to the Director that the facility
is working properly and that the scope and timing of the prescribed
maintenance is being completed.
It shall be unlawful for any person to obstruct, damage, or
materially interfere with the use or operation of a post-construction
stormwater quality facility required by this article, unless such
facility is fully restored and repaired, and such restoration or repairs
have been certified, in writing, to the Director by a qualified professional
engineer, within 48 hours of the obstruction, damage, or interference.
If any part or parts of this chapter shall be held to be invalid,
such invalidity shall not affect the validity of the remaining parts
of this chapter. The governing body hereby declares that it would
have passed the remaining parts of this chapter if it had known that
such part or parts thereof would be declared invalid.
Neither the adoption of this chapter, nor the future repeal
or amendment of any section or part or portion thereof, shall in any
manner affect the prosecution for violation of this chapter, nor be
construed as a waiver of any license, fee or penalty at said effective
date and unpaid under either ordinance, nor be construed as affecting
any of the provisions of these ordinances relating to the collection
of any such license, fee or penalty, or the penal provisions applicable
to any violation thereof, nor to affect the validity of any bond or
cash deposit in lieu thereof required to be posted, filed or deposited
pursuant to any ordinance, and all rights and obligations thereunder
shall continue in full force and effect.
