Enforcement of this chapter will follow the procedures outlined in the most current Enforcement Response Plan (ERP) for Stormwater Management as approved by Resolution of the Kalispell City Council.
A.
Violations of Article 2 of this chapter: It is unlawful for any person to violate any provision or fail to comply with any of the requirements of Article 2 of this chapter. Any person who has violated or continues to violate the provisions of this article, may be subject to the enforcement actions outlined in this section and the ERP or may be restrained by injunction or otherwise abated in a manner provided by law. Violations of Article 2 of this chapter shall be a municipal infraction pursuant to Chapter 1, Article 2 of the Kalispell City Code for a responsible party or a third party performing work on a project to violate any of the requirements of those articles, including, but not limited to, the following:
1.
Conducting any land disturbing or construction activity of greater than one acre without submitting a notice of intent to comply with NPDES or MPDES general permit for stormwater discharge associated with construction activity requirements for the location where the land disturbing activity occurred.
2.
Failing to install BMPs or to maintain BMPs throughout the duration of land disturbing activities.
3.
Failing to obtain an approved Construction Stormwater Permit from the City prior to any land disturbing activity.
4.
Failing to remove off-site sedimentation that is a direct result of land disturbing activities where such off-site sedimentation results from the failure to implement or maintain BMPs as specified in this chapter.
5.
Allowing sediment laden water resulting from belowground installations to flow from a site without being treated through a BMP.
6.
Failing to repair damage to existing BMPs, including replacement of existing grass or sod.
7.
Failing to provide adequate measures to contain and properly dispose of solid waste, sanitary waste, hazardous waste, chemicals, petroleum products, or concrete truck washout at or from a construction site.
B.
Exemptions: The following activities are exempt from the requirement of Article 2 to obtain a permit and from following the above-described procedures:
1.
Emergencies posing an immediate danger to life or property, or substantial flood or fire hazards.
2.
Any activity where the total volume of material disturbed, stored, disposed of or used as fill does not exceed five cubic yards or the area disturbed does not exceed 1,000 square feet provided it does not obstruct a watercourse, and is not located in a floodplain.
C.
Violations of Article 3 of this Chapter: It is unlawful for any person to violate any provision or fail to comply with any of the requirements of Article 3 of this chapter. Any person who has violated or continues to violate the provisions of this article, may be subject to the enforcement actions outlined in this section and the ERP or may be restrained by injunction or otherwise abated in a manner provided by law. In the event the violation constitutes an immediate danger to public health or public safety, the City of Kalispell is authorized to enter upon the subject private property, without giving prior notice, to take any and all measures necessary to abate the violation and/or restore the property. The City is authorized to seek costs of the abatement as outlined in this article. Violations of Article 3 of this chapter shall be a municipal infraction pursuant to Chapter 1, Article 2 of the Kalispell City Code for a responsible party or a third party performing work on a project to violate any of the requirements of those articles, including, but not limited to, the following:
1.
Failure to obtain a stormwater maintenance permit.
2.
Failure to submit an annual inspection to the Public Works Department for a post-construction stormwater control.
3.
Failure to renew a stormwater maintenance permit.
4.
Failure to notify the Public Works Department of a change of ownership.
5.
Failure to get approval to modify a practice covered by a stormwater maintenance permit.
6.
Failure to maintain a post-construction stormwater control in good working condition to meet the applicable design and water quality standards.
7.
Failure to keep and maintain records.
D.
Stormwater Maintenance Permit Inspections: If the required annual inspections are not being completed, the City may perform the inspections or hire a contractor to perform the required maintenance and invoice the HOA, POA, or responsible property owner the cost to perform and administer the work.
E.
Maintaining Stormwater Maintenance Permit Facilities: If the required maintenance and repairs are not being performed and inhibit the intended function of the stormwater system, the City may hire a contractor to perform the required maintenance and invoice the HOA, POA, or responsible property owner the cost to perform and administer the work.
F.
Stormwater Maintenance Districts: In the event the HOA, POA, or responsible property owner fail to perform the required maintenance and repairs to the stormwater facility and inhibit the intended function of the stormwater system, a stormwater maintenance district program may be formed in accordance with Section 7-12-4102 MCA incorporating all the lots within a development. The taxes levied within the maintenance district shall be determined by the Public Works Department with approval of the Kalispell City Council.
G.
Violations of Article 4 of this Chapter: It is unlawful for any person to violate any provision or fail to comply with any of the requirements of Article 4 of this chapter. Any person who has violated or continues to violate the provisions of this article, may be subject to the enforcement actions outlined in this section and the ERP or may be restrained by injunction or otherwise abated in a manner provided by law. In the event the violation constitutes an immediate danger to public health or public safety, the City of Kalispell is authorized to enter upon the subject private property, without giving prior notice, to take any and all measures necessary to abate the violation and/or restore the property. The City is authorized to seek costs of the abatement as outlined in this article. Violations of Article 4 of this chapter shall be a municipal infraction pursuant to Chapter 1, Article 2 of the Kalispell City Code for violations any of the requirements of those articles, including, but not limited to, the following:
1.
Dumping household toxins in a storm drain.
2.
Contractor discharging paint, concrete wash water, or other deleterious substance into a storm drain.
3.
Restaurant or business discharging fat, oil, grease, or mop wash water into a storm drain.
4.
Direct connection of anything other than stormwater or clean groundwater to a storm sewer.
5.
Discharging wastewater form RV, camper, or another source to a storm sewer.
H.
Violation Response: Dependent on the severity of the violation, the proper response(s) will be identified and initiated. Escalation will follow the ERP. The Cityʼs response remedies are described below.
1.
Warning Notice: A warning notice will be used to obtain additional information pertaining to a potential violation or to resolve an infrequent violation. The initial contact will take place within 24 hours of determining a potential violation. At a minimum, the conversation shall be documented with the following information:
2.
Notices of Violation: The NOV will be issued as a warning for significant violations of the Cityʼs stormwater ordinances and requirements or in cases where a verbal warning for a minor infraction has been ignored for at least seven days. The NOV documents the initial attempts of the City to resolve the violation. The NOV will include the following information:
a.
The specific violation;
b.
Photos (if possible);
c.
Timeframe and actions required to return to compliance; and
d.
A warning that further enforcement action may be taken for failure to comply.
Such notice may require, without limitation: |
a. | The performance of monitoring, analyses, and reporting; |
b. | The elimination of illicit connections or discharges; |
c. | That violating discharges, practices, or operations shall cease and desist; |
d. | The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property; |
e. | Payment of a fine to cover administrative and remediation costs; and |
f. | The implementation of source control or treatment BMPs. |
3.
Compliance Schedule: A compliance schedule directs the responsible party to address the violation and restore compliance by a specified date. The compliance schedule will include the following:
a.
The specific violation;
b.
The Cityʼs previous correspondence and attempts to achieve compliance;
c.
Required actions to be completed by the responsible party; and
d.
Dates by which the actions must be completed to return to compliance.
Issuance of a compliance schedule does not necessarily relieve the responsible party of having to meet any existing stormwater control commitments, nor protect the responsible party. |
4.
Meeting: A meeting will be requested with the responsible party within two working days (or a timeframe deemed appropriate for the situation) of the initial contact without fully mitigating the violation, or in the opinion of the Stormwater Coordinator, when the responsible party is not putting forth a good faith effort. The meeting will serve to educate the responsible party regarding the violation and to discuss necessary measures for correction. The meeting will be conducted by the Stormwater Coordinator or another delegated City employee. At a minimum, the meeting shall be documented with the following information:
5.
Stop Work Order: A stop work order (SWO) is a notice which informs the construction site operator of an ongoing stormwater management violation and requires a termination of work until the matter is resolved. No City permits, payments, or approvals of any kind will be issued for any project the owner or contractor is involved with as long as the SWO is in effect. The SWO will be issued for failure to comply with an NOV or for extreme violations of the Cityʼs construction site stormwater requirements. The SWO will include the following information:
a.
The specific violation;
b.
Contact information for the City personnel who must be contacted to discuss required remediation procedures;
c.
The mitigation goals necessary to remove the stop work order; and
d.
A warning notifying the site operator of additional enforcement actions for continued noncompliance.
A stop work order will not be removed until the situation is completely resolved as determined by the issuer of the stop work order. |
6.
Administrative Order: An administrative order is a formal enforcement document that requires the responsible party to either cease the specified activity or implement specified corrective measures. An administrative order will be issued when informal remedies have been pursued and have not resulted in compliance.
7.
Order to Show Cause: An Order to Show Cause (OSC) directs the responsible party to appear before the City Manager explain their noncompliance, and show cause why more severe enforcement actions should not be pursued. An OSC will be issued when an administrative order or other enforcement remedy has been disputed and has not resulted in compliance.
8.
Municipal Infraction: A municipal infraction is a civil offense punishable by a civil penalty. An administrative fine is assessed by the Municipal Court Judge to the responsible party for a violation of the Cityʼs stormwater management requirements. The fine is considered punitive in nature and is not related to any specific cost borne by the City. The amount of the fine will be proportional to the harm caused by the violation at the discretion of the Municipal Court Judge. The City may also recover damages to its MS4 or for the cost of fixing/maintaining stormwater infrastructure as stated in City ordinances.
9.
Suspend Service: The City has the authority to suspend water service, solid waste removal, and any other City services deemed applicable. These actions will be used against a responsible party that fails to comply with previous remedies or to stop discharges considered to pose an immediate risk to the public or the environment.
10.
Injunctive Relief: An injunction is a court order which directs the responsible party to cease a specified action or behavior. The City will seek injunctive relief if the responsible party refuses to comply with an administrative order or if delays in filing a civil suit would result in irreparable harm to the MS4 or receiving waterbody.
11.
Consent Decree: A consent decree is an agreement between the City and the responsible party reached after a lawsuit has been filed. A consent decree will be pursued when the City and the responsible party can reach a suitable agreement.
12.
Civil Penalties: If necessary, a civil suit will be used to recover costs borne by the City in responding to the responsible partyʼs noncompliance.
13.
Criminal Penalties: Criminal prosecution is a formal process of charging the responsible party with violations of ordinance provisions punishable by fines and/or imprisonment. Criminal prosecution will be pursued when the responsible party has ignored all previous corrective actions for two weeks and in the view of the Kalispell City Attorney or the State DEQ, the responsible party is not taking sufficient action to mitigate the violation. The filing of criminal charges may be started sooner at the discretion of the Kalispell City Attorney.
I.
Appeal of Notice of Violation: Any person receiving a notice of violation may appeal the determination of the City Manager. The notice of appeal must be received within 10 days from the date of the notice of violation. Hearing on the appeal before the City Council shall take place within 20 days from the date of receipt of the notice of appeal. The decision of the City Council shall be final.
J.
Enforcement Measures After Appeal: 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 days of the decision of the City Council upholding the decision of the City Manager, then representatives of the City 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 is unlawful for any person, owner, agent or person in possession of any premises to refuse to allow the government agency or designated contractor to enter upon the premises for the purposes set forth above.
(Ord. 1600, 4-2-2007; amd. Ord. 1831, 11-18-2019)