[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.
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.
The terms used under this chapter shall have
the meanings as set forth in this section.
Activity defined as "open farming" or "other agriculture" in Chapter 85 of the Town Code.
OPEN FARMINGIncludes the cultivation of the soil for food products and other useful or valuable growths of the field.
OTHER AGRICULTUREAgricultural 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.
A property owner who has filed an application for a land
development activity.
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.
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.
The deliberate appropriation of property by its owner for
general public use.
The New York State Department of Environmental Conservation.
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.
A person who undertakes land development activities.
The most recent version of the “New York Standards
and Specifications for Erosion and Sediment Control” manual,
commonly known as the "Blue Book."
Excavation or fill of material, including the resulting conditions
thereof.
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.
Those surfaces, improvements and structures that cannot effectively
infiltrate rainfall, snow melt and water (e.g., building rooftops,
pavement, sidewalks, driveways, etc.).
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.
The process of percolating stormwater into the subsoil.
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.
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.
A three-dimensional laser scan that provides high-definition
surveying for architectural, as-built, and engineering surveys.
A legally recorded document that provides for long-term maintenance
of stormwater management practices.
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.
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.
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.
Clearing a parcel of land in distinct pieces or parts, with
the stabilization of each piece completed before the clearing of the
next.
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.
The replenishment of underground water reserves.
Measures that prevent eroded sediment from leaving the site.
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.
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.
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.
The use of practices that prevent exposed soil from eroding.
An order issued that requires that all construction activity
on a site be stopped.
Rainwater, surface runoff, snowmelt and drainage.
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.
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.
One or a series of stormwater management practices installed,
stabilized and operating for the purpose of controlling stormwater
runoff.
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.
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.
A plan for controlling stormwater runoff and pollutants from
a site during and after construction activities.
Flow on the surface of the ground, resulting from precipitation.
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.
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.
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.
A permanent or intermittent stream or other body of water,
either natural or man-made, which gathers or carries surface water.
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.
Areas that meet the definition of "tidal wetland" or "freshwater wetland" as defined in Chapter 81 of the Town Code.
The requirements under this chapter shall be
applicable to all land development activities as follows:
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.
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.
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:
(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:
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"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."
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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.
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.
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.
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.
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:
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.
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.
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.
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.
