[Adopted 10-24-2022]
A. 
The purpose of this article is to provide for the health, safety, and general welfare of the citizens of the Town of Cumberland through review and approval of project plans for erosion and sedimentation control at construction sites.
B. 
This article establishes performance standards for erosion and sedimentation control at construction sites in order to comply with minimum control measure requirements of the Federal Clean Water Act, of federal regulations and of Maine's small municipal separate storm sewer systems general permit.
The objective of this article is to minimize the adverse effects of erosion and sedimentation from constructions on the environment.
This article applies to any project for which an application for subdivision or site plan approval is filed with the Town on or after 7-1-2023, that.
A. 
Results in disturbed area of one or more acres of land, or
B. 
Results in disturbed area that is less than one acre of land if the construction activity creating disturbed area is less than one acre of land and is part of a larger common plan of development or sale that as approved or amended would create disturbed area of one acre or more, or
C. 
Requires Planning Board site plan review as identified in Chapter 229.
D. 
Requires subdivision approval as identified in Chapter 250.
As used in this article, the following terms shall have the meanings indicated:
ADVERSE IMPACT
Any undue deleterious effect due to erosion or sedimentation from construction activity on waters of the state, protected natural resources, the infrastructure of the regulated small MS4, or off-site. Such undue deleterious effect is or may be potentially harmful or injurious to human health, welfare, safety, or property to biological productivity, diversity, or stability, or may unreasonably interfere with the enjoyment of life or property, including outdoor recreation.
COMMON PLAN OF DEVELOPMENT OR SALE
A "subdivision" as defined in Title 30-A M.R.S. §§ 4401 et seq. (the Maine Subdivision statute) and in Chapter 250, Subdivision of Land.
CONSTRUCTION ACTIVITY
Any activity on a parcel that results in disturbed area.
DISCHARGE
Any spilling, leaking, pumping, pouring, emptying, dumping, disposing, or other addition of pollutants to the waters of the state located within the municipality's urbanized area and not including groundwater.
DISTURBED AREA
All land areas of a parcel that are stripped, graded, grubbed, filled, or excavated at any time during the site preparation or removing vegetation for, or construction of, a project. Cutting of trees, without grubbing, stump removal, disturbance, or exposure of soil is not considered disturbed area. Disturbed area does not include routine maintenance but does include redevelopment and new impervious areas. "Routine maintenance" is maintenance performed to maintain the original line and grade, hydraulic capacity, and original purpose of the facility. Paving impervious gravel surfaces provided that an applicant or permittee can prove the original line and grade and hydraulic capacity shall be maintained and original purpose of the gravel surface remains the same is considered routine maintenance. Replacement of a building is not considered routine maintenance of the building and is therefore considered disturbed area.
ENFORCEMENT AUTHORITY
The Code Enforcement Officer, and their designee, are authorized to enforce this article. The use of enforcement authority in this article is synonymous with "enforcement authority or their designee."
EROSION AND SEDIMENTATION CONTROL BEST MANAGEMENT PRACTICES (EROSION AND SEDIMENTATION CONTROL BMPs)
Schedules of activities, prohibitions of practices, maintenance procedures, and other methods, techniques, designs, and management practices to prevent or reduce the pollution of waters of the state and to control erosion (erosion control BMPs) and sedimentation (sedimentation control BMPs). BMPs also include treatment requirements, operating procedures, and practices to control site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.
GENERAL PERMIT
The general permit for the discharge of stormwater from small municipal separate storm sewer systems (MS4) approved October 15, 2020 and modified November 23, 2021 and any amendment or renewal thereof.
IMPERVIOUS AREA
The total area of a parcel covered with a low-permeability material that is highly resistant to infiltration by water, such as asphalt, concrete, or rooftop, and areas such as gravel roads and unpaved parking areas that will be compacted through design or use to reduce their permeability. Common impervious areas include, but are not limited to, rooftops, walkways, patios, driveways, parking lots or storage areas, concrete or asphalt paving, gravel roads, packed earthen materials, and macadam or other surfaces which similarly impede the natural infiltration of stormwater. Pervious pavement, pervious pavers, pervious concrete, and underdrained artificial turf fields are all considered impervious.
MUNICIPAL SEPARATE STORM SEWER SYSTEMS (MS4)
A conveyance or system of conveyances designed or used for collecting or conveying stormwater (other than a publicly owned treatment works (POTW), as defined at 40 CFR 122.2, or a combined sewer), including, but not limited to, roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, human-made channels or storm drains owned or operated by any municipality, sewer or sewage district, Maine Department of Transportation (MOOT), Maine Turnpike Authority (MTA), state agency or federal agency or other public entity that discharges to waters of the state other than groundwater.
MUNICIPALITY
The City/Town of Cumberland.
PARCEL
All contiguous land in the same ownership, except that lands located on opposite sides of a public or private road are considered each a separate tract or parcel of land unless the road was established by the owner of land on both sides of the road after September 22, 1971.
PERSON
An individual, firm, corporation, municipality, quasimunicipal corporation, state agency, federal agency, or other legal entity which creates, initiates, originates, or maintains a discharge authorized or regulated by the general permit.
PROTECTED NATURAL RESOURCE
Coastal sand dunes, coastal wetlands, significant wildlife habitat, fragile mountain areas, freshwater wetlands, community public water system primary protection areas, great ponds, or rivers, streams or brooks as defined in the Natural Resources Protection Act at 38 M.R.S. § 480-B.
QUALIFIED PROFESSIONAL
A person who has been certified by Enviro-Cert International in erosion and sedimentation control practices or has been certified by completing the Maine Department of Environmental Protection Erosion and Sedimentation Control Practices Workshop, or is a Maine Professional Engineer with at least two years' experience in designing erosion and sedimentation control BMPs.
REGULATED SMALL MS4
Any small MS4 authorized by the most recent, in-force MS4 general permit or the general permits for the discharge of stormwater from MDOT and MTA small MS4s or state or federally owned or operated small MS4s including all those located partially or entirely within an urbanized area.
SITE
The portion(s) of a parcel upon which construction activity subject to this article is located.
SMALL MS4
Any MS4 that is not already covered by the Phase I MS4 stormwater program including municipally owned or operated storm sewer systems, state or federally owned systems, such as colleges, universities, prisons, military bases and facilities, and transportation entities such as MDOT and MTA road systems and facilities. See also 40 CFR 122.26(b)(16).
URBANIZED AREA
The area of the municipality so defined by the inclusive sum of the 2,000 decennial census and the 2010 decennial census by the U.S. Census Bureau.
WATERS OF THE STATE
Waters of the state as defined in 38 M.R.S. § 361-A(7).
A. 
Erosion and sedimentation control plan required. No person shall commence construction activity subject to the applicability section of this article without first preparing and obtaining approval for an erosion and sedimentation control plan in accordance with this article.
B. 
Submission.
(1) 
When construction activity is subject to review by the Planning Board site plan, the applicant will submit an erosion and sedimentation control plan meeting the requirements of this article in accordance with the following:
(a) 
For site plan review - with the application.
(b) 
For major subdivisions - with the final plan submittal.
(c) 
For minor subdivisions with the minor subdivision application.
(2) 
When a concurrent review by Planning Board is not otherwise required, an erosion and sedimentation control plan shall be submitted to the enforcement authority.
C. 
Review. The enforcement authority or Planning Board, as appropriate, will review the erosion and sedimentation control plan for compliance with the standards of this article and may provide comments where standards have not been met. Once an applicant has submitted an erosion and sedimentation control plan that the enforcement authority or Planning Board finds is in compliance with the standards of this article, the enforcement authority or Planning Board shall provide written confirmation to the applicant. The enforcement authority or Planning Board may approve the erosion and sedimentation control plan, approve it with conditions, or deny the erosion and sedimentation control plan, and that decision shall be in writing and supported by findings of fact and conclusions of law. Appeals from decisions of the enforcement authority regarding the erosion and sedimentation control plan may be taken within 30 days of the date of decision to the Board of Appeals as provided under the municipality's Zoning Article; appeals from decisions of the Planning Board regarding the erosion and sedimentation control plan may be taken within 30 days of the date of decision in the same manner as appeals are taken under the municipality's subdivision or site plan article, as appropriate.
D. 
Preconstruction conference.
(1) 
In addition to the preconstruction conferences required for subdivisions under Chapter 250, projects subject to this article that are not subdivisions are required to request and attend a preconstruction conference unless waived by the Town Manager.
(2) 
At least 10 days prior to commencing construction activity, the applicant shall request a preconstruction conference with the enforcement authority. At a minimum, attendance at the meeting is required by the enforcement authority, the developer, his/her site contractor (for earthwork and project oversight), engineer, general contractor, Town Planner, Municipal Engineer and any other such department heads deemed appropriate by the enforcement authority. Meeting minutes must be prepared by the municipality's representative and distributed to all attendees.
E. 
Compliance with requirements. The applicant shall implement and comply with the erosion and sedimentation control plan as approved throughout all phases of construction activity.
F. 
Notice of permanent stabilization. The applicant shall provide notice to the enforcement authority when permanent stabilization of the site has been achieved to allow for final inspection per § 242-41 of this article.
A. 
Project contacts and qualifications.
(1) 
The applicant shall provide contact information (i.e., name, company if applicable, phone number, physical address, and email address) as described below:
(a) 
Applicant,
(b) 
Qualified professional, and
(c) 
Contractor (if applicable).
B. 
Erosion and sedimentation control plan content.
(1) 
The erosion and sedimentation control plan shall be prepared in accordance with the performance standards contained in Appendix 1.
(2) 
The erosion and sedimentation control plan shall consist of a graphic representation of the site at a scale no smaller than one inch equals 100 feet showing:
(a) 
Parcel boundaries,
(b) 
Locations of protected natural resources,
(c) 
Locations of all potential sources of authorized and unauthorized nonstormwater discharges,
(d) 
Locations of all erosion and sedimentation control BMPs to be used,
(e) 
Topography for site pre-and post-construction conditions as two-foot elevation contours,
(f) 
Details for all erosion and sedimentation control BMPs to be used,
(g) 
Details and timing associated with phasing of construction activity in disturbed areas at the site, and phasing of installation and stabilization of erosion and sedimentation control BMPs (if applicable),
(h) 
Erosion and sedimentation control BMPs notes with construction standards,
(i) 
A narrative description of the timing, inspections, and erosion and sedimentation control BMPs to be used,
(j) 
Example inspection form,
(k) 
Dewatering plan if necessary, and
(l) 
Locations of areas not to be disturbed by construction activity, including trees, vegetation, and areas intended for infiltration.
(3) 
The erosion and sedimentation control plan shall also include documentation of any variances or releases provided by the Maine Department of Environmental Protection from Chapter 500 performance standards.
The Planning Board or enforcement authority as appropriate, shall determine if the following standards are met in accordance with Appendix 1.
A. 
Qualified professional. The erosion and sedimentation control plan has been prepared by a qualified professional.
B. 
Timing of installation and maintenance. The erosion and sedimentation control plan requires that sedimentation control BMPs shall be in place before construction begins, additional erosion and sedimentation control BMPs shall be installed as needed and shall be phased in if phasing is used, and shall be maintained until permanent stabilization is achieved.
C. 
Inspection. The erosion and sedimentation control plan provides for inspection of the site by the applicant to confirm that erosion and sedimentation control BMPs are in place and functioning. The erosion and sedimentation control plan also provides for corrective action if erosion is occurring or there is a discharge of sediment or turbid water from the construction site.
D. 
Spill prevention. The erosion and sedimentation control plan includes measures that prevent construction site pollution and spills from entering stormwater.
E. 
Groundwater protection. The erosion and sedimentation control plan restricts the storage or handling of liquid petroleum products and other hazardous materials that may drain to an "infiltration area."
F. 
Fugitive sediment and dust. The erosion and sedimentation control plan includes provisions to prevent erosion of soils, tracking or migration of soils into the right of way, discharge of sediment from the site, and fugitive dust emissions during or after construction.
G. 
Debris. The erosion and sedimentation control plan includes provisions to minimize the exposure of construction materials and waste to stormwater runoff and prevent them from migrating off-site.
H. 
Excavation dewatering. The erosion and sedimentation control plan must include provisions to remove or properly disperse the collected water in a manner that prevents sediment from entering stormwater.
I. 
Nonstormwater discharges. The erosion and sedimentation control plan minimizes nonstormwater discharges and, if nonstormwater discharges are allowed, they are identified in the erosion and sedimentation control plan with appropriate pollution measures for discharge.
A. 
The enforcement authority will inspect the site as follows at a minimum:
(1) 
Once before any disturbance begins and after all erosion and sedimentation control BMPs specified in the erosion and sedimentation control plan are in place.
(2) 
Three times during the active earth moving phase of construction.
(3) 
Once at project completion to ensure the site has reached permanent stabilization and all temporary erosion and sedimentation controls have been removed.
B. 
Additional inspection requirements to be completed by the applicant during construction are contained in Appendix 1.
It shall be unlawful for any person to violate any provision of or to fail to comply with any of the requirements of this article. Whenever the enforcement authority believes that a person has violated this article, the enforcement authority may enforce this article in accordance with 30-A M.R.S. § 4452 and this section.
A. 
Right of entry.
(1) 
In order to determine compliance with this article, the enforcement authority may enter upon the parcel at reasonable hours with the consent of the owner, occupant, agent, or contractor to inspect the parcel for compliance with this article.
B. 
Notice of violation.
(1) 
Whenever the enforcement authority finds that a person has violated this article, the enforcement authority may order compliance with this article by written notice of violation to that person indicating the nature of the violation(s), a statement of the article provision(s) alleged to have been violated, including a statement of the penalties for violation, and ordering the action necessary to correct it, including, without limitation:
(a) 
The abatement of violations and the cessation of practices or operations in violation of this article;
(b) 
At the person's expense, compliance with or repair of the erosion and sedimentation control BMPs required as a condition of approval of the erosion and sedimentation control plan, and/or the restoration of any affected portion(s) of the parcel;
(c) 
The payment of fines, of the municipality's remediation costs and of the municipality's reasonable administrative costs and attorneys' fees and costs;
(d) 
If abatement of a violation, compliance with the erosion and sedimentation control plan, repair of erosion and sedimentation control BMPs, and/or restoration of affected portions of the parcel is required, the notice shall set forth a deadline within which such abatement, compliance, repair, and/or restoration must be completed.
C. 
Stop work notice.
(1) 
The enforcement authority may issue a stop work notice whenever:
(a) 
A person has not acted on a notice of violation issued pursuant to this article within the time set forth in the notice, or
(b) 
A person subject to the applicability section of this article undertakes construction activity without first submitting an application for and obtaining approval of an erosion and sedimentation control plan.
(2) 
The enforcement authority will attempt to deliver the stop work notice to the applicant, the person performing the construction activity, or the owner or occupant of the parcel, as appropriate, by any means reasonable calculated to effectuate delivery.
(3) 
Once the stop work notice has been delivered, no further construction activity at the site may proceed other than as is necessary to correct the noncompliance. Construction activity may resume only when the enforcement authority provides written notice that the person may resume that construction activity.
D. 
Penalties/fines/injunctive relief.
(1) 
Any person who violates this article, including, but not limited to the erosion and sedimentation control plan, shall be subject to fines, penalties, and orders for injunctive relief and shall be responsible for the municipality's attorney's fees and costs, all in accordance with 30-A M.R.S. § 4452. Each day that such violation continues shall constitute a separate violation. Moreover, any person who violates this article also shall be responsible for any and all fines, penalties, damages, and costs, including, but not limited to attorneys' fees and costs, incurred by the municipality for enforcement of violation(s) of federal and state environmental laws and regulations caused by or related to that person's violation of this article; this responsibility shall be in addition to any penalties, fines, or injunctive relief imposed under this section.
E. 
Consent agreement.
(1) 
The enforcement authority may, with the approval of the municipal officers, enter into a written consent agreement with the violator to address timely abatement of the violation(s) of this article for the purposes of eliminating violations of this article and of recovering fines, costs, and fees without court action.
F. 
Appeal of notice of violation.
(1) 
Any person receiving a notice of violation or stop work notice may appeal the determination of the enforcement authority to the Zoning Board of Appeals. The notice of appeal must be received within 30 days from the date of receipt of the notice of violation. The Board of Appeals shall hold a de nova hearing on the appeal within 30 days from the date of receipt of the notice of appeal. A party aggrieved by the decision of the Board of Appeals may appeal that decision to the Maine Superior Court within 45 days of that date of the Board of Appeals decision pursuant to Rule 808 of the Maine Rules of Civil Procedure.
G. 
Enforcement measures.
(1) 
If the violation has not been corrected pursuant to the requirements set forth in the notice of violation, or, in the event of an appeal to the Board of Appeals, within 45 days of a decision of the Board of Appeals affirming or modifying the enforcement authority's decision, then the enforcement authority may recommend to the municipal officers that the municipality's attorney file an enforcement action in a Maine court of competent jurisdiction under Rule 80K of the Maine Rules of Civil Procedure.
A. 
The provisions of this article are hereby declared to be severable. If any provision, clause, sentence, or paragraph of this article or the application thereof to any person, establishment, or circumstances shall be held invalid, such invalidity shall not affect the other provisions, clauses, sentences, or paragraphs or application of this article.
B. 
Whenever a provision of this article conflicts with or is inconsistent with another provision of this article or of any other article, regulation or statute administered by the municipality, the more restrictive provision shall control.
Where the Planning Board or enforcement authority finds that there are special circumstances of a particular erosion and sedimentation control plan that make a particular submission requirement or standard inapplicable, a waiver may be granted, provided that such waiver will not have the effect of nullifying the intent and purpose of this article. The applicant shall submit, in writing, the reason for the requested waiver. In granting waivers or modifications, the Planning Board or enforcement authority may require such conditions that will substantially secure the objectives of the standards so waived or modified.
The municipality enacts this erosion and sedimentation control Article pursuant to 30-A M.R.S. §§ 3001 et seq. (municipal home rule article authority), 38 M.R.S. § 413 (the Wastewater Discharge Law), 33 USC §§ 1251 et seq. (the Clean Water Act), and 40 CFR Part 122 [US Environmental Protection Agency's regulations governing the National Pollution Discharge Elimination System (NPDES)]. The Maine Department of Environmental Protection, through its promulgation of the general permit for the discharge of stormwater from small municipal separate storm sewer systems has listed the municipality as having a regulated small MS4; under this general permit, listing as a regulated small MS4 necessitates enactment of elements of this article as part of the municipality's stormwater management program in order to satisfy the minimum control measures for construction site stormwater runoff control.