Town of Brookhaven, NY
Suffolk County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Brookhaven 1-22-2008 by L.L. No. 1-2008, effective 1-30-2008; amended in its entirety 11-13-2014 by L.L. No. 29-2014, effective 11-25-2014. Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Flood damage prevention — See Ch. 33.
Grading — See Ch. 35.
Coastal erosion hazard areas — See Ch. 76.
Water resources — See Ch. 78.
Wetlands and waterways — See Ch. 81.
Zoning — See Ch. 85.
Municipal separate storm sewer system — See Ch. 86A.
Subdivision regulations — See Ch. SR.

§ 86-1 Legislative intent.

A. 
Findings. The State of New York, pursuant to the Clean Water Act (33 U.S.C. § 1251 et seq.), is authorized to adopt and implement a State Pollutant Discharge Elimination System (SPDES) permit program regulating the discharge of pollutants from new or existing outlets or point sources into the waters of the State. The New York State Legislature enacted Article 17, Title 8, of the Environmental Conservation Law requiring a State Pollution Discharge Elimination System (SPDES) permit prior to the discharge of any pollutants. Under the Federal National Pollutant Discharge Elimination System (NPDES) regulations, as administrated by New York State, municipalities are required to obtain a permit for the discharge of stormwater. The Town of Brookhaven in 2002 obtained a SPDES permit in connection with discharge of stormwater as required pursuant to Environmental Conservation Law. The SPDES permit requires that the Town enact a local law that complies with federal and New York State guidelines for stormwater control, which addresses the following findings of fact as determined by the State and accepted by the Town of Brookhaven:
(1) 
Land development activities and associated increases in site impervious cover often alter the hydrologic response of local watersheds and increase stormwater runoff rates and volumes, flooding, stream bank erosion, or sediment transport and deposition.
(2) 
Stormwater runoff contributes to increased quantities of waterborne pollutants, including siltation of aquatic habitat for fish and other desirable species.
(3) 
Clearing and grading during construction tends to increase soil erosion and add to the loss of native vegetation necessary for terrestrial and aquatic habitat.
(4) 
Improper design and construction of stormwater management practices can increase the velocity of stormwater runoff, thereby increasing stream bank erosion and sedimentation.
(5) 
Impervious surfaces allow less water to percolate into the soil, thereby decreasing groundwater recharge and stream baseflow.
(6) 
Substantial economic losses can result from these adverse impacts on the waters of the municipality.
(7) 
Stormwater runoff, soil erosion and nonpoint source pollution can be controlled and minimized through the regulation of stormwater runoff from land development activities.
(8) 
The regulation of stormwater runoff discharges from land development activities in order to control and minimize increases in stormwater runoff rates and volumes, soil erosion, stream bank erosion, and nonpoint source pollution associated with stormwater runoff is in the public interest and will minimize threats to public health and safety.
(9) 
Regulation of land development activities by means of performance standards governing stormwater management and site design will produce development compatible with the natural functions of a particular site or an entire watershed and thereby mitigate the adverse effects of erosion and sedimentation from development.
B. 
Purpose. The purpose of this chapter is to establish minimum stormwater management requirements and controls to protect and safeguard the general health, safety, and welfare of the residents of and the general public within the Town of Brookhaven by achieving the following objectives:
(1) 
Meet the requirements of minimum measures four and five of the NYSDEC State Pollutant Discharge Elimination System (SPDES) General Permit for Stormwater Discharges from Municipal Separate Stormwater Sewer Systems (MS4s), Permit No. GP-0-10-002 or as amended or revised;
(2) 
Require land development activities to conform to the substantive requirements of the NYSDEC SPDES General Permit for Construction Activities GP-0-10-001 or as amended or revised;
(3) 
Minimize increases in stormwater runoff from land development activities in order to reduce flooding, siltation, increases in stream temperature, and stream bank erosion;
(4) 
Minimize increases in pollution caused by stormwater runoff from land development activities, which would otherwise degrade local water quality;
(5) 
Minimize the total annual volume of stormwater runoff, which flows from any specific site during and following development to the maximum extent practicable; and
(6) 
Reduce stormwater runoff rates and volumes, soil erosion and nonpoint source pollution, wherever possible, through stormwater management practices and to ensure that these management practices are properly maintained and eliminate threats to public safety.

§ 86-2 Definitions.

The terms used under this chapter shall have the meanings as set forth in this section.
AGRICULTURAL ACTIVITY
Activity defined as "open farming" or "other agriculture" in Chapter 85 of the Town Code.
A. 
Includes the cultivation of the soil for food products and other useful or valuable growths of the field.
B. 
Agricultural uses not included in the foregoing definition of "open farming," but including greenhouses, dairies and the raising of livestock, roosters and other poultry, except when such poultry consists solely of a total of six or fewer ducks or geese or female chickens or any combination thereof per residential premises, regardless of size.
APPLICANT
A property owner who has filed an application for a land development activity.
BUILDING
Any structure meeting the definition of "building" as defined in Chapter 85 of the Town Code. A structure having a roof supported by columns or walls, and when separated by a party wall without openings, it shall be deemed a separate building.
CLEARING
The removal of any existing natural vegetation located on a lot, parcel or site, exclusive of vegetation associated with active agricultural or horticultural activity or formalized landscaped and/or turf areas.
DEDICATION
The deliberate appropriation of property by its owner for general public use.
DEPARTMENT
The New York State Department of Environmental Conservation.
DESIGN MANUAL
The New York State Stormwater Management Design Manual, most recent version, including applicable updates, that serves as the official guide for stormwater management principles, methods and practices.
DEVELOPER
A person who undertakes land development activities.
EROSION CONTROL MANUAL
The most recent version of the “New York Standards and Specifications for Erosion and Sediment Control” manual, commonly known as the "Blue Book."
GRADING
Excavation or fill of material, including the resulting conditions thereof.
GREEN INFRASTRUCTURE
Those approaches that essentially infiltrate, evapotranspirate or reuse stormwater, with significant utilization of soils and vegetation rather than traditional hardscape collection, conveyance and storage structures.
IMPERVIOUS COVER
Those surfaces, improvements and structures that cannot effectively infiltrate rainfall, snow melt and water (e.g., building rooftops, pavement, sidewalks, driveways, etc.).
INDUSTRIAL STORMWATER PERMIT
A State Pollutant Discharge Elimination System permit issued to a commercial industry or group of industries, which regulates the pollutant levels, associated with industrial stormwater discharges or specifies on-site pollution control strategies.
INFILTRATION
The process of percolating stormwater into the subsoil.
LAND DEVELOPMENT ACTIVITY
Construction activity including clearing, grading, excavating, soil disturbance or placement of fill that results in land disturbance of equal to or greater than one acre, or activities disturbing less than one acre of total land area that is part of a common plan of development, notwithstanding that multiple and distinct activities may occur at different times and/or different schedules.
LANDOWNER
The legal or beneficial owner of land, including those holding the right to purchase or lease the land, or any other person holding proprietary rights in the land.
LIGHT, IMAGING, DETECTION AND RANGING (LIDAR) SYSTEM
A three-dimensional laser scan that provides high-definition surveying for architectural, as-built, and engineering surveys.
MAINTENANCE AGREEMENT
A legally recorded document that provides for long-term maintenance of stormwater management practices.
MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4)
A conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains) that is owned or operated by the Town and designed or used for collecting or conveying stormwater; the MS4, as defined, is not a combined sewer or part of a publicly owned treatment works (POTW) as defined at 40 CFR 122.2.
NONPOINT SOURCE POLLUTION
Pollution, from any sources other than from any discernible, confined, and discrete conveyances, and shall include, but not be limited to, pollutants from agricultural, silvicultural, mining, construction, subsurface disposal and urban runoff sources.
PERSON
One or more of the following: any individual, owner, lease holder, entity, corporation, agent, company, parent company, subsidiary, limited-liability company, substantially owned affiliated-entity, successor, partnership, joint venture, association, legal representative, agent or any other form of doing business.
PHASING
Clearing a parcel of land in distinct pieces or parts, with the stabilization of each piece completed before the clearing of the next.
POLLUTANT OF CONCERN
Sediment or a water quality measurement that addresses sediment (such as total suspended solids, turbidity or siltation) and any other pollutant, including, but not limited to, nitrogen, phosphorus and pathogens, that have been identified as a cause of impairment to any water body that will receive a discharge from the land development activity.
RECHARGE
The replenishment of underground water reserves.
SEDIMENT CONTROL
Measures that prevent eroded sediment from leaving the site.
SENSITIVE AREAS
Cold-water fisheries, shellfish beds, swimming beaches, groundwater recharge areas, water supply reservoirs, habitats for threatened, endangered or special concern species, tidal wetlands and freshwater wetlands.
SPDES GENERAL PERMIT FOR CONSTRUCTION ACTIVITIES GP-0-10-001
A permit under the New York State Pollutant Discharge Elimination System (SPDES) issued to developers of construction activities to regulate disturbance of one or more acres of land.
SPDES GENERAL PERMIT FOR STORMWATER DISCHARGES FROM MUNICIPAL SEPARATE STORMWATER SEWER SYSTEMS GP-0-10-002
A permit under the New York State Pollutant Discharge Elimination System (SPDES) issued to municipalities to regulate discharges from municipal separate storm sewers for compliance with EPA-established water quality standards and/or to specify stormwater control standards.
STABILIZATION
The use of practices that prevent exposed soil from eroding.
STOP-WORK ORDER
An order issued that requires that all construction activity on a site be stopped.
STORMWATER
Rainwater, surface runoff, snowmelt and drainage.
STORMWATER HOT SPOT
A land use or activity that generates higher concentrations of hydrocarbons, trace metals or toxicants that are found in typical stormwater runoff, based on monitoring studies.
STORMWATER MANAGEMENT
The use of structural or nonstructural practices that are designed to reduce stormwater runoff and mitigate its adverse impacts on property, natural resources and the environment.
STORMWATER MANAGEMENT FACILITY
One or a series of stormwater management practices installed, stabilized and operating for the purpose of controlling stormwater runoff.
STORMWATER MANAGEMENT OFFICER
An employee or officer designated by the municipality to accept and review stormwater pollution prevention plans, forward the plans to the applicable municipal board and inspect stormwater management practices.
STORMWATER MANAGEMENT PRACTICES (SMPs)
Measures, either structural or nonstructural, that are determined to be the most effective, practical means of preventing or reducing point source or nonpoint source pollution inputs to stormwater runoff and water bodies, while minimizing potential flood damage.
STORMWATER POLLUTION PREVENTION PLAN (SWPPP)
A plan for controlling stormwater runoff and pollutants from a site during and after construction activities.
STORMWATER RUNOFF
Flow on the surface of the ground, resulting from precipitation.
SURFACE WATERS OF THE STATE OF NEW YORK
Lakes, bays, sounds, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within the territorial seas of the State of New York and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, public or private (except those private waters that do not combine or effect a junction with natural surface or underground waters), which are wholly or partially within or bordering the state or within its jurisdiction. Storm sewers and waste treatment systems, including treatment ponds or lagoons, which also meet the criteria of this definition are not waters of the state. This exclusion applies only to man-made bodies of water, which neither were originally created in waters of the state (such as a disposal area in wetlands) nor resulted from impoundment of waters of the state.
303(d) LIST OF IMPAIRED WATERS
NYSDEC-published list, and any amendments thereto, of all surface waters in the State for which beneficial uses of the water (i.e., drinking, recreation, aquatic habitat, and industrial) are impaired by pollutants, as required by Section 303(d) of the Federal Clean Water Act. 303(d) listed waters include estuaries, lakes, and streams that fall short of State surface water quality standards and are not expected to improve within the next two years.
TOTAL MAXIMUM DAILY LOAD (TMDL)
The maximum amount of a pollutant allowed to be released into a water body so as not to impair uses of the water, allocated among the sources of that pollutant.
WATERCOURSE
A permanent or intermittent stream or other body of water, either natural or man-made, which gathers or carries surface water.
WATERWAY
Any natural or artificial fresh or marine body of water commonly known as a stream, river, creek, lake, pond, estuary, bay, harbor, ocean, and the like. A waterway includes those areas defined as lands underwater.
WETLANDS
Areas that meet the definition of "tidal wetland" or "freshwater wetland" as defined in Chapter 81 of the Town Code.

§ 86-3 Applicability and review for compliance.

The requirements under this chapter shall be applicable to all land development activities as follows:
A. 
Disturbance of one acre or more; or
B. 
Disturbance of less than one acre that is part of a larger common plan of development, notwithstanding multiple and distinct activities may occur at different times and/or different schedules.

§ 86-4 Stormwater Management Officer.

A. 
The Stormwater Manager shall serve as the Stormwater Management Officer, as defined under this chapter.
B. 
The Stormwater Management Officer shall be authorized to accept, administer and establish procedures for the review and approval of all stormwater pollution prevention plans (SWPPPs) in accordance with the requirements under this chapter.
C. 
The Stormwater Management Officer or his/her authorized designee may:
(1) 
Review and approve the SWPPP;
(2) 
Review and grant/deny SWPPP conditional releases;
(3) 
Retain the services of a Town Board appointed registered professional engineer to review the plans, specifications and related SWPPP and SWPPP conditional release documents, and accept the recommendations of the engineer for approval;
(4) 
Accept the certification of a licensed professional that the stormwater pollution prevention plan (SWPPP) conforms to the requirements of this chapter; or
(5) 
Accept the certification of a licensed professional that the SWPPP conditional release complies with the theory that the proposed disturbance will not discharge to waters of the state or an MS4 system that discharges to waters of the state.

§ 86-5 Exemptions.

The following activities may be exempt from review under this chapter:
A. 
Agricultural activity as defined in this chapter.
B. 
Routine maintenance activities that disturb less than two acres and are performed to maintain the original line and grade, hydraulic capacity or original purpose of a facility.
C. 
Repairs to any stormwater management practice or facility deemed necessary by the Stormwater Management Officer.
D. 
Any part of a subdivision if a plat for the subdivision has been approved by the Planning Board of the Town of Brookhaven on or before the effective date of this chapter.
E. 
Land development activities for which a building permit has been approved on or before the effective date of this chapter.
F. 
Cemetery graves.
G. 
Installation of fence, sign, telephone, and electric poles and other kinds of posts or poles.
H. 
Emergency measure immediately necessary to protect life, property or natural resources. The Stormwater Management Officer shall be notified in writing within 48 hours of the commencement of the emergency. The Stormwater Management Officer shall review and determine the sufficiency of the emergency measure and advise the landowner and/or developer if additional protective measures are required.
I. 
Activities of an individual engaging in home gardening by growing flowers, vegetable and other plants primarily for use by that person and his or her family.
J. 
Landscaping and horticultural activities in connection with an existing structure.
K. 
Resurfacing or repair of an existing paved surface, which does not decrease the permeability of the paved surface, nor expand the area of pavement.

§ 86-6 Stormwater pollution prevention plans.

A. 
Stormwater pollution prevention plan requirements.
(1) 
Consistent with the New York Standards and Specifications for Erosion and Sediment Control (i.e., Erosion Control Manual), not more than five acres shall be disturbed at any one time unless pursuant to an approved SWPPP that includes post-construction stormwater management practices.
(2) 
No application for approval of a land development activity shall receive final approval until the Stormwater Management Officer has received, reviewed and approved a stormwater pollution prevention plan (SWPPP) prepared in accordance with the specifications in this chapter.
(3) 
Each application for approval of a land development activity shall be accompanied by a filing fee.
B. 
Contents of stormwater pollution prevention plans.
(1) 
All SWPPPs shall provide, at the minimum, the following information:
(a) 
Background information about the scope of the project, including location, type and size of project;
(b) 
The name(s), address(es), telephone and fax number(s) of the applicant, developer, and/or property owner, and the principal contact person of the retained consulting firm responsible for monitoring daily compliance in accordance with the provisions of this chapter;
(c) 
Site map/construction drawing(s) for the project, including a general location map at a scale not less than one inch equals 2,000 feet. The site map shall be at a scale no smaller than one inch equals 50 feet. At a minimum, the site map should show the total site area; all improvements; areas of disturbance; areas that will not be disturbed; existing vegetation; on-site and adjacent off-site surface water(s); wetlands and drainage patterns that could be affected by the construction activity; existing and final slopes; locations of off-site material, waste, borrow or equipment storage areas; and location(s) of the stormwater discharge(s);
(d) 
Description of the soil(s) present at the site;
(e) 
Construction phasing plans describing the intended sequence of construction activities, including clearing and grubbing, excavation and grading, utility and infrastructure installation and any other activity at the site that results in soil disturbance. Preparation and installation of erosion control measures must be the first item listed in the sequence of construction activities.
(f) 
Description of the pollution prevention measures that will be used to control litter, construction chemicals and construction debris from becoming a pollutant source in stormwater runoff;
(g) 
Description of construction and waste materials expected to be stored on-site with updates as appropriate, and a description of controls to reduce pollutants from these materials, including storage practices to minimize exposure of the materials to stormwater, and spill prevention and response;
(h) 
Temporary and permanent structural and vegetative measures to be used for soil stabilization, runoff control and sediment control for each stage of the project from initial land clearing and grubbing to project close-out;
(i) 
A site map/construction drawing(s) specifying the location(s), size(s) and length(s) of each erosion and sediment control practice;
(j) 
Dimensions, material specifications and installation details for all erosion and sediment control practices, including the siting and sizing of any temporary sediment basins;
(k) 
Temporary practices that will be converted to permanent control measures;
(l) 
Implementation schedule for staging temporary erosion and sediment control practices, including the timing of initial placement and duration that each practice should remain in place;
(m) 
Maintenance schedule to ensure continuous and effective operation of the erosion and sediment control practice;
(n) 
Name(s) of the receiving water(s);
(o) 
Delineation of SWPPP implementation responsibilities for each part of the site;
(p) 
Description of structural practices designed to divert flows from exposed soils, store flows, or otherwise limit runoff and the discharge of pollutants from exposed areas of the site to the degree attainable;
(q) 
Any existing data that describes the stormwater runoff at the site.
(2) 
All SWPPPs shall document the "Five Step Process" as required by the Design Manual. The five-step process includes:
(a) 
Site planning;
(b) 
Water quality volume determination;
(c) 
The application of green infrastructure practices and standard stormwater management practices with runoff reduction volume capacity;
(d) 
The application of standard stormwater management practices to address the remaining water quality volume, if applicable; and
(e) 
The application of volume and peak rate control.
(3) 
Land development activities as defined in this chapter, and within one of the classifications, Condition A, B, C or D as set forth below, shall also include water quantity and water quality controls (post-construction stormwater runoff controls) as set forth below as applicable:
(a) 
Condition A: stormwater runoff from land development activities discharging a pollutant of concern to either an impaired water identified on the Department's 303(d) list of impaired waters or a total maximum daily load (TMDL) designated watershed for which pollutants in stormwater have been identified as a source of the impairment.
(b) 
Condition B: stormwater runoff from land development activities disturbing five or more acres.
(c) 
Condition C: stormwater runoff from land development activities disturbing between one acre and five acres of land during the course of the project, exclusive of the construction of single-family residences and agricultural activities on properties with existing agricultural use.
(d) 
Condition D: stormwater runoff from land development activities located immediately adjacent to surface waters.
(4) 
SWPPP requirements for Conditions A, B, C and D:
(a) 
All information in § 86-6 of this chapter;
(b) 
Description of each post-construction stormwater management practice;
(c) 
Site map/construction drawing(s) showing the specific location(s) and size(s) of each post-construction stormwater management practice;
(d) 
Hydrologic and hydraulic analysis for all structural components of the stormwater management system for the applicable design storms;
(e) 
Comparison of post-development stormwater runoff conditions with predevelopment conditions;
(f) 
Dimensions, material specifications and installation details for each post-construction stormwater management practice;
(g) 
Maintenance schedule to ensure continuous and effective operation of each post-construction stormwater management practice;
(h) 
Maintenance easements to ensure access to all stormwater management practices at the site for the purpose of inspection and repair. Easements shall be recorded on the plan and shall remain in effect with transfer of title to the property; and
(i) 
Inspection and maintenance agreement binding on all subsequent landowners served by the on-site stormwater management measures in accordance with this chapter.
C. 
Plan certification. For land development activities within the classification of Condition A, B, C and/or D, the SWPPP shall be prepared by a New York State registered landscape architect (RLA), a certified professional in sediment and erosion control (CPESC) or a professional engineer (PE) licensed in the State of New York, and must be signed by the professional preparing the SWPPP, which professional shall certify that the design of all stormwater management practices complies with the requirements set forth in this chapter. All SWPPS must include the following preparer certification statement:
"I certify that this document and all attachments were prepared under my direction and supervision in accordance with SPDES General Permit GP-0-10-001. Qualified personnel performed due diligence in gathering and evaluating the information contained in this SWPPP. Based on my design and inquiry of the owners and/or sponsors of the project, the information contained in this SWPPP is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment."
D. 
Other environmental permits. The applicant shall be required to obtain all applicable local, state, and federal environmental permits prior to approval of the SWPPP.
E. 
Contractor certification.
(1) 
Each contractor and subcontractor identified in the SWPPP involved in soil disturbance and/or stormwater management practice installation shall provide the following certification statement before undertaking any land development activity:
"I certify under penalty of law that I understand and agree to comply with the terms and conditions of the Stormwater Pollution Prevention Plan. I further acknowledge that the failure to comply with the terms and conditions of the SWPPP is a violation of Chapter 86, which may result in enforcement proceedings and/or the assessment of penalties. I also understand that it is unlawful for any person to cause or contribute to a violation of water quality standards.
(2) 
The certification must include the name and title of the person providing the signature, address and telephone number of the contracting firm; the address (or other identifying description) of the site; and the certification date.
(3) 
The certification statement(s) shall become part of the SWPPP for the land development activity.
F. 
A copy of the SWPPP shall be retained at the site of the land development activity during construction from the date of initiation of construction activities to the date of final stabilization.
G. 
NYSDEC notice of intent (NOI) and the MS4 SWPPP acceptance form must be submitted to NYSDEC prior to construction. No construction activity may begin until proof of submission to NYSDEC has been received by the Stormwater Management Officer.
H. 
Request for a SWPPP conditional release.
(1) 
Request for a conditional release from SWPPP must be made in writing to the Stormwater Management Officer.
(2) 
Written request for a SWPPP conditional release must be prepared and certified by a landscape architect, certified professional in sediment and erosion control, or a professional engineer licensed in the State of New York.
(3) 
Written request for a SWPPP conditional release must provide the following information:
(a) 
Background information about the scope of the project, including location, type and size of project;
(b) 
The name(s), address(es), telephone, email address, and fax number(s) of the applicant, developer, and/or property owner, and the principal contact person of the retained consulting firm responsible for monitoring daily compliance in accordance with the provisions of this chapter;
(c) 
Site map/construction drawing(s) for the project, including a general location map at a scale not less than one inch equals 2,000 feet. The site map shall be at a scale no smaller than one inch equals 50 feet. At a minimum, the site map should show the total site area; all improvements; areas of disturbance; areas that will not be disturbed; existing vegetation; on-site and adjacent off-site surface water(s); wetlands and drainage patterns that could be affected by the construction activity; existing and final slopes; locations of off-site material, waste, borrow or equipment storage areas; and location(s) of the stormwater discharge(s); and
(d) 
Description of the soil(s) present at the site identified by the most current version of the Suffolk County Soil Survey map and/or test boring.
(4) 
Documentation in support of a conditional release must provide evidence to support the theory that runoff from the project site cannot, by any means, discharge to waters of the state as defined in this chapter, or an MS4 system that discharges to waters of the state, and shall include:
(a) 
Project design plans;
(b) 
Aerial photos of the project area;
(c) 
Dated site photos, taken within one month of the conditional release request;
(d) 
Relief maps made from 2007 (or newer) LIDAR digital terrain modeling, or the like;
(e) 
Existing road plans and profiles, if available; and
(f) 
The results of infiltration testing completed in accordance with Design Manual guidelines.

§ 86-7 Performance and design criteria for stormwater management and erosion and sediment control.

All land development activities shall be subject to the following performance and design criteria:
A. 
Technical standards. For the purpose of this chapter, the following documents shall serve as the specifications and standards for stormwater management. Stormwater management practices that are designed and constructed in accordance with the documents set forth herein shall be presumed to meet the standards imposed by this chapter:
(1) 
The New York State Stormwater Management Design Manual (New York State Department of Environmental Conservation, or any amendments thereto, hereafter referred to as the "Design Manual").
(2) 
New York Standards and Specifications for Erosion and Sediment Control (Empire State Chapter of the Soil and Water Conservation Society, 2004 (or most current version), or any amendments thereto, hereafter referred to as the "Erosion Control Manual.")
B. 
Equivalence to technical standards. Where stormwater management practices are not in accordance with the technical specifications or standards, the applicant or developer must demonstrate to the satisfaction of the Stormwater Management Officer that the SWPPP, as prepared by a New York State registered landscape architect (RLA), a certified professional in sediment and erosion control (CPESC) or a professional engineer (PE) licensed in the State of New York, is equivalent to the technical specifications or standards.
C. 
Water quality standards. Any land development activity shall not cause an increase in turbidity that will result in substantial visible contrast to natural conditions in surface waters of the State of New York.

§ 86-8 Maintenance, inspection and repair of stormwater facilities.

A. 
Maintenance and inspection during construction.
(1) 
The applicant or developer of the land development activity or his or her representative shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the applicant or developer to achieve compliance with the conditions of this chapter. Sediment shall be removed from sediment traps or sediment ponds whenever their design capacity has been reduced by 50%.
(2) 
For land development activities as defined under this chapter and meeting Condition A or C above, the applicant shall have a qualified professional conduct site inspections and document the effectiveness of all erosion and sediment control practices at least once every seven calendar days, or the applicable period as may be required by the NYSDEC, of any storm event producing 0.5 inch of precipitation or more. Inspection reports shall be maintained in a site logbook and be available for inspection upon request.
(3) 
For land development activities as defined under this chapter and meeting Condition B or D above, the applicant shall have a qualified professional conduct at least two site inspections and document the effectiveness of all erosion and sediment control practices every seven calendar days, or the applicable period as may be required by the NYSDEC, of any storm event producing 0.5 inch of precipitation or more. The two inspections shall be separated by a minimum of two full calendar days. Inspection reports shall be maintained in a site logbook and be available for inspection upon request.
(4) 
The applicant or developer or his or her representative shall be on site at all times when construction or grading activity takes place and shall inspect and document the effectiveness of all erosion and sediment control practices.
B. 
Maintenance access agreement. The property owner and the applicant or developer must execute a maintenance access agreement that shall provide for access to the facility at reasonable times for periodic inspection by the Town of Brookhaven to ensure that the stormwater management facility, as required pursuant to an approved SWPPP, is maintained in proper working condition to meet the design standards and any other provisions established by this chapter. The maintenance access agreement shall be in a form as approved by the Town Attorney, and recorded by the grantor in the Office of the Suffolk County Clerk, and said maintenance access agreement shall be binding on all subsequent landowners served by the stormwater management facility.
C. 
Maintenance after construction. The stormwater management facility owner or operator shall ensure the facility is operated and maintained in accordance with this chapter. Proper operation and maintenance shall also include, at a minimum, the following:
(1) 
A preventive/corrective maintenance program for all critical facilities and systems of treatment and control (or related appurtenances) which are installed or used by the owner or operator to achieve the goals of this chapter.
(2) 
Written procedures for operation and maintenance and training new maintenance personnel.
(3) 
Discharges from the facility shall not exceed design criteria or cause or contribute to water quality standard violations in accordance with § 86-9D, or any amendments thereto.
D. 
Maintenance agreements. Prior to any land development activity receiving final approval, the property owner shall be required to execute a Declaration of Covenant for maintenance of the stormwater control facility, in such form as shall be approved by the Town Attorney, which shall be binding on all subsequent landowners, and shall cause said declaration to be filed and recorded in the Office of the Suffolk County Clerk. The maintenance agreement shall be consistent with the terms and conditions of this chapter.

§ 86-9 Construction inspection.

A. 
Erosion and sediment control inspection.
(1) 
The Stormwater Management Officer may require such inspections as deemed necessary to determine compliance with the requirements of this chapter and may either approve that portion of the work as completed or notify the applicant where the work fails to comply with the requirements of this chapter and/or the stormwater pollution prevention plan (SWPPP) as approved. The applicant shall notify the Stormwater Management Officer at least 48 hours prior to the occurrence of any of the following:
(a) 
Installation of sediment and erosion control measures.
(b) 
Completion of site clearing.
(c) 
Completion of rough grading.
(d) 
Inspections of an underground drainage or stormwater conveyance prior to backfilling.
(e) 
Completion of final grading.
(f) 
Close of the construction season.
(g) 
Completion of final landscaping.
(h) 
Successful establishment of landscaping in public areas.
(i) 
A final inspection of all sediment and stormwater management structures and facilities when work on these facilities has been completed.
(2) 
If any violations are found, the applicant and developer shall be notified in writing of the nature of the violation and the required corrective actions. No further work shall be permitted, except for site stabilization, until the violations are corrected and the Stormwater Management Officer has approved all work previously completed.
B. 
Stormwater management practice inspections. The Stormwater Management Officer is responsible for conducting inspections of stormwater management practices (Sumps). The Stormwater Management Officer may designate a certified licensed professional to act as an inspector. The designated inspector shall be required to submit a written inspection report to the Stormwater Management Officer.
C. 
Termination of SWPPP coverage.
(1) 
An owner or operator that is eligible to terminate SWPPP coverage must submit a completed notice of termination (NOT) to the Stormwater Management Officer.
(2) 
An owner or operator may terminate coverage when one or more of the following conditions have been met:
(a) 
Total project completion.
[1] 
All construction activity identified in the SWPPP has been completed; and
[2] 
All areas of disturbance have achieved final stabilization; and
[3] 
All temporary, structural erosion and sediment control measures have been removed; and
[4] 
All post-construction stormwater management practices have been constructed in conformance with the SWPPP and are operational.
(b) 
Planned shutdown with partial project completion.
[1] 
All soil disturbance activities have ceased; and
[2] 
All areas disturbed as of the project shutdown date have achieved final stabilization; and
[3] 
All temporary, structural erosion and sediment control measures have been removed; and
[4] 
All post-construction stormwater management practices required for the completed portion of the project have been constructed in conformance with the SWPPP and are operational.
(3) 
A new owner or operator has obtained coverage.
(4) 
Request for NOT sign off. A certificate of occupancy (CO) or a temporary CO may not be issued until all of the following conditions have been met:
(a) 
Three copies of the final "as built" plans have been submitted to the Stormwater Management Officer for review and approval;
(b) 
The Stormwater Management Officer, or a designated certified licensed professional, has conducted a final site inspection and confirmed in writing that the site has achieved final stabilization and all permanent post-construction stormwater management practices are in place and functioning; and
(c) 
Permanent stormwater management system covenants have been reviewed, approved and filed with the Suffolk County Clerk's office. Proof of filing, including an original copy with the County Clerk's seal, must be submitted to the Stormwater Management Officer with the Schedule A description of the property.
D. 
Inspection of stormwater facilities after project completion.
(1) 
Upon the completion of the stormwater facility, the Stormwater Management Officer may conduct an inspection to ensure compliance with the provisions of this chapter and the approved SWPPP, including, but not limited to: routine inspections; random inspections; inspections based upon complaints or other notice of possible violations; inspection of drainage basins or areas identified as higher than typical sources of sediment or other contaminants or pollutants; inspections of businesses or industries of a type associated with higher than usual discharges of contaminants or pollutants or with discharges of a type which are more likely than the typical discharge to cause violations of state or federal water or sediment quality standards or the SPDES stormwater permit; and joint inspections with other agencies inspecting under environmental or safety laws. Inspections may include, but are not limited to: reviewing maintenance and repair records; sampling discharges, surface water, groundwater, and material or water in drainage control facilities; and evaluating the condition of drainage control facilities and other stormwater management practices.
(2) 
The inspections specified by this section may be performed by any of the following, at the Stormwater Management Officer's discretion on a case-by-case basis:
(a) 
Designated Town of Brookhaven personnel;
(b) 
Authorized engineering firms or consultant firms;
(c) 
Engineering firms or consultant firms employed by a developer.
E. 
Submission of reports.
(1) 
The Stormwater Management Officer may require monitoring and reporting from entities subject to this chapter as are necessary to determine compliance with this chapter.
(2) 
All applicants are required to submit "as built" plans for any stormwater management practices located on-site after final construction is completed. The plans must show the final construction layout for all stormwater management facilities. The plans must also clearly display any alterations made to the original approved construction details, sections, and/or plan layout. A professional engineer must certify the as-built plans.
F. 
Right of entry for inspection. Upon the installation of a stormwater management facility on private property or upon any new connection between private property and the public stormwater system, the property owner shall grant and execute an access agreement permitting access to the property for the purpose of inspection by the Town and other governmental review agencies, or authorized engineering firms or consultant firms.

§ 86-10 Performance guarantee.

A. 
Construction completion guarantee. In order to ensure the full and faithful completion of all land development activities related to compliance with all conditions set forth by the Stormwater Management Officer in his/her approval of the stormwater pollution prevention plan, the SMO may require the applicant or developer to provide, prior to construction, the required security, in the form of a performance bond, cash escrow, or irrevocable letter of credit from an appropriate financial or surety institution which guarantees satisfactory completion of the project and names the Town of Brookhaven as the beneficiary. The security shall be in an amount to be determined by the Town of Brookhaven based on submission of final design plans, with reference to actual construction and landscaping costs. The performance guarantee shall remain in force until the surety is released from liability by the Town of Brookhaven, provided that such period shall not be less than one year from the date of final acceptance or such other certification that the facility(ies) has been constructed in accordance with the approved plans and specifications and that a one-year inspection has been conducted and the facilities have been found to be acceptable to the Town of Brookhaven.
B. 
Maintenance guarantee. Stormwater management and erosion and sediment control facilities operated and maintained by any person that owns or manages a commercial or industrial facility, prior to construction may be required to provide the Town of Brookhaven with an irrevocable letter of credit from an approved financial institution or surety, or other approved security, to ensure proper operation and maintenance of all stormwater management and erosion control facilities both during and after construction, and until the facilities are removed from operation. If any person fails to properly operate and maintain stormwater management and erosion and sediment control facilities, the Town of Brookhaven may default the security in order to cover the costs of proper operation and maintenance, including engineering and inspection costs.
C. 
Recordkeeping. Any person operating or maintaining a stormwater management facility shall maintain records demonstrating compliance with this chapter.

§ 86-11 Remedies; penalties.

A. 
Notice of violation. In the event that a land development activity or stormwater management facility is not in compliance with the requirements of this chapter, the Stormwater Management Officer may issue a written notice of violation, to be served personally or by certified mail, to the property owner as shown on the last preceding assessment roll of the Town of Brookhaven and the owner of record as shown in the records in the Office of the Suffolk County Clerk. The notice of violation shall contain the following:
(1) 
The name and address of the property owner and developer or applicant;
(2) 
The property's tax identification (i.e., district, section, lot, block), the address or a description of the building, structure or land upon which the violation is occurring;
(3) 
A statement specifying the nature of the violation;
(4) 
A description of the corrective, remedial measures necessary to bring the land development activity and/or stormwater management facility into compliance with this chapter and a time schedule for the completion of such remedial action;
(5) 
A statement of the penalty or penalties that shall or may be assessed against the person to whom the notice of violation is directed;
(6) 
A statement that in the event that the required corrective measures are not completed within the time specified in the notice, the Town may seek a court order to enter the property, and complete the required corrective measures and assess such costs and expenses against the property;
(7) 
A statement that the determination of violation may be appealed to the SMO by filing a written notice of appeal within five business days of service of a notice of violation.
B. 
Appeal of notice of violation. Any person receiving a notice of violation may appeal the determination of the SMO in writing within five business days of its issuance. The appeal notice shall be directed to the SMO. A hearing officer, as designated by the Director of Environmental Protection and the Town Attorney, shall hear the appeal within 30 days after the filing of the appeal and, within five business days of making his/her decision, issue a decision by certified mail or personal service to the violator and property owner. If the original notice of violation is sustained, the SMO shall issue an order, to be served by certified mail or personal service, which shall state the corrective measures to be taken and required date of completion of the corrective measures. The filing of the appeal shall not stay or prevent the Town from taking all necessary emergency corrective measures.
C. 
Stop-work orders. In addition to any other available remedy at law, the SMO may issue a stop-work order for violations of this chapter. Persons receiving a stop-work order shall be required to halt all land development activities, except for remediation activities that address the violations stated in the stop-work order. The stop-work order shall be in effect until the SMO confirms that the land development activity is in compliance with the provisions of this chapter and the violation has been satisfactorily addressed. Failure to adhere to a stop-work order shall result in the Town taking all necessary action, including seeking civil, criminal, or monetary penalties as authorized under this chapter.
D. 
Withholding of certificate of occupancy. The issuance of a certificate of occupancy may be withheld until compliance with this chapter has been demonstrated to the reasonable satisfaction of the Stormwater Management Officer.
E. 
Injunctive relief. In addition to any other available remedy at law or as provided under this chapter, the Town may institute a suit in equity, injunction relief, to restrain, correct or abate such violations of this chapter.
F. 
Any provision contained in the Town Code to the contrary notwithstanding, the Town Attorney, or his/her designee, in consultation with the Stormwater Management Officer, in addition to or in lieu of seeking criminal penalties or seeking to restrain or enjoin activity in violation of this chapter, may enter into a civil compromise whereby the person who committed such violation agrees to pay to the Town a civil penalty in an agreed amount. The payment of a civil penalty must be made in conjunction with an agreement on consent whereby the violator agrees to take steps to comply with the requirements under this chapter.
G. 
Upon determination that a violation has occurred or is reasonably likely to occur if immediate action is not taken, the Town of Brookhaven may seek a court order permitting the Town of Brookhaven to take any and all corrective measures reasonably necessary to abate the violation and/or prevent the violation from occurring and/or restore the premises, and the cost thereof shall be assessed against the property and lands to be collected in the same manner as real property taxes.
H. 
Application for search warrant. The Commissioner of Planning, Environment and Land Management or the Stormwater Management Officer or his designated representative is authorized to make application to the District Court or Supreme Court of Suffolk County, or any court of competent jurisdiction, for the issuance of a search warrant in order to conduct an inspection of any premises covered by this chapter where the owner refuses or fails to allow an inspection of the stormwater management facility and practices and where there is reasonable cause to believe that a violation of this chapter has occurred. The applications for a search warrant shall in all respects comply with the applicable laws of the State of New York.
I. 
Penalties for offenses. Any person who shall violate any provision of this chapter shall be guilty of a violation punishable by a fine not exceeding $3,000 or imprisonment for a period not to exceed six months, or both, for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of two years, punishable by a fine not less than $3,000 nor more than $8,000 or imprisonment for a period not to exceed six months, or both; and upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine not less than $8,000 nor more than $20,000 or imprisonment for a period not to exceed six months, or both. However, for the purposes of conferring jurisdiction upon courts and judicial officers generally, violations of this chapter shall be deemed misdemeanors and for such purpose only all provisions of law relating to misdemeanors shall apply to such violations. Each week's (seven consecutive days from date of incident) continued violation shall constitute a separate additional violation.
J. 
Remedies not exclusive. The remedies listed in this chapter are not exclusive of any other remedies available under any applicable statute, law and/or regulation and it is within the discretion of the Town of Brookhaven to seek cumulative remedies.

§ 86-12 Severability.

If any clause, sentence, paragraph, subdivision, section, or part of this chapter or the application thereof to any person, individual, corporation, firm, partnership, entity, or circumstance shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such order or judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section, or part of this chapter, or in its application to the person, individual, corporation, firm, partnership, entity, or circumstance directly involved in the controversy in which such order or judgment shall be rendered.