Chapter 15.42
STORMWATER MANAGEMENT

Sections:

15.42.010    Findings of fact – Need and purpose.

15.42.020    Definitions.

15.42.030    General provisions.

15.42.040    Regulated activities.

15.42.050    General requirements.

15.42.060    Approval standards.

15.42.070    Maintenance, inspection and enforcement.

15.42.080    Administration.

15.42.090    Variances and appeals.

15.42.100    Infractions – Penalty.

15.42.110    Misdemeanors – Penalty.

15.42.120    Severability.

15.42.010 Findings of fact – Need and purpose.

A. Findings of Fact. The city council of the city of Bellingham hereby finds that:

1. Stormwater pollution is a problem associated with land utilization and development and the common use of potential pollutants such as pesticides, fertilizers, petroleum products, and numerous others.

Land utilization and development is also known to increase both the volume and speed of peak flows. The resulting erosion, scouring, deposition of sediment, and flooding affect the ecological balance in the stream and present safety hazards to both life and property.

Sedimentation and stormwater pollution cause diversity of species to decrease and allow more tolerant (and usually less desirable) species to remain.

Stormwater facilities are a common feature of urban development which must be maintained in order to prevent damage to the public and/or pollution of surface and ground water.

2. In the future such problems and dangers will be reduced or avoided if existing properties and future developers, both private and public, provide for stormwater quality and quantity controls.

3. Stormwater quality and quantity controls can be achieved when land is developed or redeveloped by implementing appropriate best management practices (BMPs).

4. Best management practices can be expected to perform as intended only when properly designed, constructed and maintained.

B. Need. The city council finds that this chapter is necessary in order to guide and advise all who make use of, contribute water to, or alter the city drainage system, and to ensure maintenance of all stormwater facilities within the city by setting minimum standards for their inspection and maintenance.

C. Purpose. It is the purpose of this chapter to:

1. Minimize water quality degradation in streams, ponds, lakes, wetlands and other water bodies;

2. Minimize the degradation of habitat and habitat forming processes in streams, ponds, lakes, wetlands, and other water bodies;

3. Minimize the impact of increased runoff, erosion and sedimentation caused by land development and maintenance practices;

4. Promote site planning and construction practices that are consistent with natural geological, topographical, vegetational and hydrological conditions;

5. Maintain and protect the city’s stormwater management infrastructure and those downstream;

6. Minimize disruption of hydrologic functions, patterns, and processes;

7. Provide compliance with federal, state and local requirements for stormwater management and water quality.

This chapter is not intended to create a special relationship with any individual or individuals, nor to identify and protect any particular class of persons. It is not the intent of this chapter to impose liability upon the city for failure to perform any discretionary act or failure to enforce the provisions of this chapter. It is the intent of this chapter to place the obligation of complying with its requirements upon the owner and/or contractor. Neither the city nor any officer, agent, or employee thereof shall incur or be held as assuming any liability by reason or in consequence of any permission, inspection or approval authorized herein, or issued as provided herein, or by reason or consequence of anything done or act performed pursuant to the provisions of this chapter. [Ord. 2009-06-041; Ord. 2006-05-047; Ord. 10633, 1995].

15.42.020 Definitions.

For purposes of this chapter, the following definitions shall apply:

“Arterial” means a road or street primarily for through traffic. A major arterial connects an interstate highway to cities and counties. A minor arterial connects major arterials to collectors. A collector connects an arterial to a neighborhood. A collector is not an arterial. A local access road connects individual homes to a collector.

“Best management practices (BMPs)” means schedules of activities, prohibitions of practices, maintenance procedures, and other physical, structural, and/or managerial practices that prevent or reduce the release of pollutants and other adverse impacts to waters of Washington State. BMPs can be used singularly or in combination. BMPs have been approved by Ecology. BMPs are listed and described in the Ecology Manual, current edition.

A. “Source control BMP” means a BMP that is intended to prevent pollution from entering stormwater.

B. “Treatment BMP” means facilities that remove pollutants by simple gravity settling of particulate pollutants, centrifugal separation, filtration, biological uptake, and media or soil adsorption.

C. “Flow control BMP” means BMPs that control the volume rate, frequency, and flow duration of stormwater surface runoff.

D. “Low impact development BMP” means a set of BMPs containing treatment and flow control solutions that are contained in the LID Guidance Manual.

E. “Experimental BMP” means any treatment or methodology proposed for treatment or management of stormwater that is not in the Ecology Manual (current edition) and is being studied by the city, Whatcom County and/or the Washington State Department of Ecology for adoption as a BMP.

“Bioretention” means an integrated stormwater management practice that uses the chemical, biological, and physical property of plants, microbes, and soils to remove or retain pollutants from stormwater runoff. Bioretention facilities are depressions that can be isolated detention cells, swales for conveyance as well as treatment, or a connected-cell hybrid of the two. Bioretention facilities include compost amended soils, landscape plantings selected for tolerance to a range of conditions and a mulch layer.

“Clearing” means the destruction and removal of vegetation by manual, mechanical, chemical or other such method.

“Critical areas” means those areas defined in Chapter 16.55 BMC.

“Critical basins” means those geographic basin areas that are of exceptional significance and that have been determined by the city to require special protection. The Lake Whatcom watershed has been determined to be a critical basin.

“Detention” means the release of stormwater runoff from the site at a slower rate than it is collected by the stormwater facility system, the difference being held in temporary storage.

“Detention facility” means an above or below ground facility, such as a pond or tank, that temporarily stores stormwater runoff and subsequently releases it at a slower rate than it is collected by the drainage facility system. There is little or no infiltration of stored stormwater.

“Development” means new development, redevelopment, or both, including a combination thereof. See definitions for each.

“Director” means the director of the public works department or his/her assignee.

“Drainage basin” means a geographic and hydrologic subunit of a watershed.

“Ecology” or “DOE” means the Washington State Department of Ecology.

“Ecology Manual” means the Washington State Department of Ecology “Stormwater Management Manual for Western Washington” as currently adopted or hereafter modified. The LID Guidance Manual shall be considered a portion of this manual.

“Effective impervious surface” means those impervious surfaces that are connected via sheet flow or discrete conveyance to a drainage system. Impervious surfaces are considered ineffective if: (1) the runoff is dispersed through at least 100 feet of native vegetation in accordance with BMP T5.30 – “Full Dispersion” as described in Chapter 5 of Volume V of the Ecology Manual; (2) residential roof runoff is infiltrated in accordance with downspout full infiltration systems in BMP T5.10A in Volume III of the Stormwater Management Manual; or (3) approved continuous runoff modeling methods indicate that the entire runoff is infiltrated.

“Erosion” means the wearing away of the land surface by running water, wind, ice, or other geological agents, including such processes as gravitational creep. Also, detachment and movement of soil or rock fragments by water, wind, ice, or gravity.

“Excavation” means the mechanical removal of earth material.

“Feasible” means the design criteria, limitations, and infeasibility criteria for each LID BMP as described in the Ecology Manual.

“Fill” means a deposit of earth material placed by artificial means.

“Forest practice” means any activity conducted on or directly pertaining to forest land and relating to growing, harvesting, or processing timber, including but not limited to:

A. Road and trail construction;

B. Harvesting, final and intermediate;

C. Precommercial thinning;

D. Reforestation;

E. Fertilization;

F. Prevention and suppression of diseases and insects;

G. Salvage of trees; or

H. Brush control.

“Hard surface” means an impervious surface, a permeable pavement, or a vegetated roof.

“Highway” means a main public road connecting towns and cities.

“Hydroperiod” means a seasonal occurrence of flooding and/or soil saturation; it encompasses depth, frequency, duration, and seasonal pattern of inundation.

“Illicit discharge” means all nonstormwater discharges to natural or manmade stormwater drainage systems, including but not limited to sanitary sewer connections, industrial process water, interior floor drains, car washing, and greywater systems. All nonstormwater discharges not listed below are considered to be an illicit discharge.

A. The following are allowed discharges:

1. Diverted stream flows.

2. Rising ground waters.

3. Uncontaminated ground water infiltration (as defined in 40 CFR 35.2005(20)).

4. Uncontaminated pumped ground water.

5. Fountain drains.

6. Air conditioning condensate.

7. Irrigation water from agricultural sources that is commingled with urban stormwater.

8. Springs.

9. Water from crawl space pumps.

10. Footing drains.

11. Flows from riparian habitats and wetlands.

12. Nonstormwater discharges covered by and compliant with another NPDES permit.

13. Discharges from emergency firefighting activities in accordance with permit condition S2 of the Western Washington Phase II Municipal Stormwater Permit Authorized Discharges.

B. The following are conditionally allowed discharges:

1. Discharges from potable water sources, including water line flushing, hyperchlorinated water line flushing, fire hydrant system flushing, and pipeline hydrostatic test water. Planned discharges will be to sanitary sewer. If sanitary sewer is not an option, the water shall be dechlorinated to a concentration of 0.1 ppm or less, pH-adjusted, if necessary, and volumetrically and velocity controlled to prevent resuspension of sediments in the stormwater drainage system.

2. Dechlorinated swimming pool discharges. Any swimming pool, spa, or hot tub discharge that may be allowed must be dechlorinated to a concentration of 0.1 ppm or less, thermally controlled, pH-adjusted and reoxygenized. Discharge volume and velocity will be controlled to prevent scour or resuspension of sediments in city stormwater conveyances. Swimming pool, spa or hot tub cleaning water and filter backwash is not an allowed discharge.

3. Street and sidewalk wash water, water used to control dust, and routine external building wash down are allowed if the water does not contain detergents and/or particulates will not cause an exceedance of state water quality standards. For city operations, to the extent practicable, the amount of street wash and dust control water used shall be minimized. At active construction sites, BMC 15.42.060(F)(2)(e)(ii)(D) requires that street sweeping must be performed prior to the washing of any street.

4. Stormwater discharges associated with construction, including dewatering practices, are regulated and enforced per this chapter.

“Impervious surface” means a nonvegetated surface that either prevents or retards the entry of water into the soil mantle as under natural conditions prior to development. A nonvegetated surface area which causes water to run off the surface in greater quantities or at an increased rate of flow from the flow present under natural conditions prior to development. Common impervious surfaces include, but are not limited to, rooftops, walkways, patios, driveways, parking lots or storage areas, concrete or asphalt paving, packed gravel surfaces, packed earthen materials, and oiled, macadam or other surfaces which similarly impede the natural infiltration of stormwater. Open, uncovered retention/detention facilities shall not be considered as impervious surfaces for purposes of determining whether the thresholds for application of minimum requirements are exceeded. Open, uncovered retention/detention facilities shall be considered impervious surfaces for purposes of runoff modeling. Impervious surfaces that meet the criteria for full dispersion or that are fully infiltrated in compliance with the Ecology Manual shall be excluded in the determination of thresholds for compliance with this chapter.

“Lake Whatcom watershed” means all those lands that drain into Lake Whatcom. The terminus of the Lake Whatcom watershed is the city of Bellingham control dam located at the juncture of Lake Whatcom and Whatcom Creek. The boundaries are shown on Map 15.42.020. Where in conflict, the definition of the watershed boundaries provided herein shall supersede the map.

“Lake Whatcom watershed Basin One” means those lands within the Lake Whatcom watershed that drain into Basin One of Lake Whatcom via natural topography or through manmade conveyance systems. The boundaries of Basin One are shown on Map 15.42.020. Where in conflict, the definition of the watershed boundaries provided herein shall supersede the map.

“Land-disturbing activity” means any activity that results in movement of earth, or a change in the existing soil cover (both vegetative and nonvegetative) and/or the existing soil topography. Land-disturbing activities include, but are not limited to, clearing, grading, filling, and excavation. Compaction that is associated with stabilization of structures and road construction shall also be considered a land-disturbing activity. Vegetation maintenance practices or gardening are not generally considered land-disturbing activity. Stormwater facility maintenance is not considered land-disturbing activity if conducted according to established standards and procedures. The exception is that within Basin One of the Lake Whatcom watershed such activities are limited to the provisions for exempt gardens within this code.

“LID Guidance Manual” means the current edition of the Low Impact Development Technical Guidance Manual for Puget Sound, prepared by the Puget Sound Partnership and the Washington State University Pierce County Extension.

“Low impact development (LID)” means a group of BMPs and land use practices that are aimed at lessening the hydrologic and water quality impacts to the environment from development. LID practices include, but are not limited to, reduction in impervious surfaces, infiltration of flow, dispersion of flow, soil remediation and cluster development.

Maintenance. “Repair and maintenance” includes activities conducted on currently serviceable structures, facilities, and equipment that involve no expansion or use beyond that previously existing use and result in no significant adverse hydrologic impact. It includes those usual activities taken to prevent a decline, lapse, or cessation in the use of structures and systems. Those usual activities may include removal and replacement of disfunctioning facilities, including cases where environmental permits require replacing an existing structure with a different type structure, as long as the functioning characteristics of the original structure are not changed. By way of example is the replacement of a collapsed, fish blocking, round culvert with a new box culvert under the same span, or width, of roadway.

“Master plan” means the city of Bellingham’s watershed master plan or stormwater comprehensive plan.

“Mitigation” means, in the following order of preference:

A. Avoiding the impact altogether by not taking a certain action or part of an action;

B. Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts;

C. Rectifying the impact by repairing, rehabilitating or restoring the affected environment;

D. Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; and

E. Compensating for the impact by replacing, enhancing, or providing substitute resources or environments.

“Native vegetation” means vegetation comprised of plant species, other than noxious weeds, that are indigenous to the coastal region of the Pacific Northwest and which reasonably could have been expected to naturally occur on the site. Examples include trees such as Douglas fir, western hemlock, western red cedar, alder, big-leaf maple, and vine maple; shrubs such as willow, elderberry, salmonberry, and salal; and herbaceous plants such as sword fern, foam flower, and fireweed.

“Natural forested condition” means a vegetated condition mimicking well-established forests and supporting soils found in the lowlands of Whatcom County prior to European settlement. The pre-European-settlement condition is characterized by an extensive canopy cover dominated by native coniferous trees, a significant duff layer, and all distinct plant layers present (tree, shrub, and ground cover). The natural forested condition shall function and perform as the “forested condition” in the Department of Ecology Stormwater Manual, current edition.

“Natural location” means the location of those channels, swales, and other nonmanmade conveyance systems as defined by the first documented topographic contours existing for the subject property, either from maps or photographs, or such other means as appropriate. In the case of outwash soils with relatively flat terrain, no natural location of surface discharge may exist.

“New development” means land-disturbing activities, including Class IV general forest practices that are conversions from timber land to other uses; structural development, including construction or installation of a building or other structure; creation of impervious surfaces; and subdivision, short subdivision and binding site plans, as defined and applied in Chapter 58.17 RCW. Projects meeting the definition of redevelopment shall not be considered new development.

“New impervious surface” means impervious surfaces that replace or supplant existing pervious surfaces. For road construction projects, extending the pavement edge without increasing the size of the road prism, or paving graveled shoulders, resurfacing by upgrading from dirt to gravel, asphalt, or concrete; upgrading from gravel to asphalt, or concrete; or upgrading from a bituminous surface treatment (“chip seal”) to asphalt or concrete: These are considered new impervious surfaces and are subject to the minimum requirements that are triggered when the thresholds identified for development or redevelopment projects are met. For other development, the replacement of compacted dirt, gravel or bituminous surface treatment, regardless of use, with structural development, asphalt or concrete shall constitute a new impervious surface.

“Partially pervious surface” means surfaces that cause an increase in stormwater runoff from a natural forested condition but that are not clearly a defined impervious surface. Common surfaces in this category are lawns, landscaping areas, gardens, areas that have been cleared of native vegetation, and nonengineered pervious driveways that have not been proven through engineering analysis as being capable of fully infiltrating the water from a 100-year developed condition storm. (Applies to Basin One of Lake Whatcom watershed only.)

“Permeable pavement” means pervious concrete, porous asphalt, permeable pavers or other forms of pervious or porous paving material intended to allow passage of water through the pavement section. It often includes an aggregate base that provides structural support and acts as a stormwater reservoir.

“Person” means any individual, partnership, corporation, association, organization, cooperative, public or municipal corporation, agency of the state, or local government unit, however designated.

“Pervious surface” means any surface material that allows stormwater to infiltrate into the ground. Examples include lawn, landscape, pasture, native vegetation, and permeable pavements.

“Pollution” means contamination or other alteration of the physical, chemical, or biological properties of waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental or injurious to the public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life.

“Pollution-generating hard surface (PGHS)” means those hard surfaces considered to be a significant source of pollutants in stormwater runoff. Such surfaces include those which are subject to: vehicular use; industrial activities (as defined in the Ecology Manual); or storage of erodible or leachable materials, wastes, or chemicals, and which receive direct rainfall or the run-on or blow-in of rainfall. Erodible or leachable materials, wastes, or chemicals are those substances which, when exposed to rainfall, measurably alter the physical or chemical characteristics of the rainfall runoff. Examples include erodible soils that are stockpiled, uncovered process wastes, manure, fertilizers, oily substances, ashes, kiln dust, and garbage dumpster leakage. Metal roofs are also considered to be PGHS unless they are coated with an inert, nonleachable material (e.g., baked-on enamel coating). A surface, whether paved or not, shall be considered subject to vehicular use if it is regularly used by motor vehicles. The following are considered regularly used vehicular surfaces: roads, unvegetated road shoulders, bike lanes within the traveled lane of a roadway, driveways, parking lots, unfenced fire lanes, vehicular equipment storage yards, and airport runways. The following are not considered regularly used vehicular surfaces: paved bicycle pathways separated from and not subject to drainage from roads for motor vehicles, fenced fire lanes, and infrequently used maintenance access roads.

“Pollution-generating impervious surface (PGIS)” means those impervious surfaces considered to be a significant source of pollutants in stormwater runoff. Such surfaces include those which are subject to: vehicular use; industrial activities (as defined in the Ecology Manual); or storage of erodible or leachable materials, wastes, or chemicals, and which receive direct rainfall or the run-on or blow-in of rainfall. Erodible or leachable materials, wastes, or chemicals are those substances which, when exposed to rainfall, measurably alter the physical or chemical characteristics of the rainfall runoff. Examples include erodible soils that are stockpiled, uncovered process wastes, manure, fertilizers, oily substances, ashes, kiln dust, and garbage dumpster leakage. Metal roofs are also considered to be PGIS unless they are coated with an inert, nonleachable material (e.g., baked-on enamel coating). A surface, whether paved or not, shall be considered subject to vehicular use if it is regularly used by motor vehicles. The following are considered regularly used surfaces: roads, unvegetated road shoulders, bike lanes within the traveled lane of a roadway, driveways, parking lots, unfenced fire lanes, vehicular equipment storage yards, and airport runways. The following are not considered regularly used surfaces: paved bicycle pathways separated from and not subject to drainage from roads for motor vehicles, fenced fire lanes, and infrequently used maintenance access roads.

“Pollution-generating pervious surfaces (PGPS)” means any nonimpervious surface subject to vehicular use, industrial activities; or the storage of erodible or leachable materials, wastes, or chemicals, and that receive direct rainfall or run-on or blow-in of rainfall, the use of pesticides and fertilizers or loss of soil. Typical PGPS include, by way of example, permeable pavement subject to vehicular use, lawns, landscaped areas, golf courses, parks, cemeteries, and sports fields (natural and artificial turf).

Predeveloped Condition. For areas that drain directly or indirectly to a river or stream, “predeveloped conditions” shall mean the native vegetation and soils that existed at a site prior to the influence of Euro-American settlement. The predeveloped condition shall be assumed to be a forested land cover unless reasonable, historic information is provided that indicates the site was prairie prior to settlement.

“Project site” means that portion of a property, properties, or right-of-way subject to land-disturbing activities, new hard surfaces, or replaced hard surfaces. The total projected area of new, replaced or new plus replaced hard surfaces for subdivisions shall constitute a project site. Project site shall also include any and all areas of the project property or properties that have been previously developed on or after September 1, 1995, if said development did not provide permanent stormwater facilities for water quality and quantity mitigation.

“Receiving waters” means bodies of water or surface water systems to which surface runoff is discharged via a point source of stormwater or via sheet flow.

“Redevelopment” means, on a site that is already substantially developed (which means 35 percent or more of existing impervious surface coverage, 10 percent or more for Basin One of Lake Whatcom watershed), the creation or addition of impervious surfaces; the expansion of a building footprint or addition or replacement of a structure; structural development including construction, installation or expansion of a building or other structure; replacement of impervious surface that is not part of a routine maintenance activity; and land-disturbing activities. For Basin One of the Lake Whatcom watershed redevelopment also means the creation of or expansion of partial pervious surfaces.

“Regional retention/detention system” means a stormwater quantity control structure designed to correct existing surface water runoff problems of a basin or sub-basin. The area downstream has been previously identified as having existing or predicted significant and regional flooding and/or erosion problems. This term is also used when a detention facility is sited to detain stormwater runoff from a number of new developments or areas within a catchment.

“Replaced hard surface” means, for structures, the removal and replacement of hard surfaces down to the foundation. For other hard surfaces, the removal down to bare soil or base course and replacement. The pulverization and replacement of like pavement is considered a replaced hard surface. The partial grinding of surfaces for overlay is considered to be a maintenance activity.

“Replaced impervious surface” means, for structures, the removal and replacement of impervious surfaces down to the foundation. For other impervious surfaces, the removal down to bare soil or base course and replacement. The pulverization and replacement of like pavement is considered a replaced impervious surface. The partial grinding of surfaces for overlay is considered to be a maintenance activity.

“Site” means the area defined by the legal boundaries of a parcel or parcels of land that is (are) subject to new development or redevelopment. For road projects, the length of the project site and the right-of-way boundaries define the site.

“Soil” means the unconsolidated mineral and organic material on the immediate surface of the earth that serves as a natural medium for the growth of land plants.

“Source control BMP” means a structure or operation that is intended to prevent pollutants from coming into contact with stormwater through physical separation of areas or careful management of activities that are sources of pollutants. This manual separates source control BMPs into two types. Structural source control BMPs are physical, structural, or mechanical devices, or facilities that are intended to prevent pollutants from entering stormwater. Operational BMPs are nonstructural practices that prevent or reduce pollutants from entering stormwater. See Ecology Manual, Volume IV for details.

“Stormwater” means that portion of precipitation that does not naturally percolate into the ground or evaporate, but flows via overland flow, interflow, pipes and other features of a stormwater drainage system into a defined surface water body, or a constructed infiltration facility.

“Stormwater drainage system” means constructed and natural features which function together as a system to collect, convey, channel, hold, inhibit, retain, detain, infiltrate, divert, treat or filter stormwater.

“Stormwater facility” means a constructed component of a stormwater drainage system designed or constructed to perform a particular function, or multiple functions. Stormwater facilities include, but are not limited to, pipes, swales, ditches, culverts, street gutters, detention ponds, retention ponds, constructed wetlands, infiltration devices, catch basins, oil/water separators, and biofiltration swales.

Stormwater Management Manual for Western Washington (Stormwater Manual). This manual, as prepared by and updated by the Department of Ecology, contains BMPs to prevent, control or treat pollution in stormwater and reduce other stormwater-related impacts to waters of the state and shall be interpreted to mean the current edition. The stormwater manual is intended to provide a supplement to this BMC to control the quantity and quality of stormwater runoff from new development and redevelopment. The stormwater manual shall be used for the guidance of designs, reports and construction for all development and redevelopment within the city of Bellingham except where this chapter provides for more specific direction regarding stormwater management.

“Stormwater site plan” means the comprehensive report containing all of the technical information and analysis necessary for the city of Bellingham and other regulatory agencies to evaluate a proposed new development or redevelopment project for compliance with stormwater requirements. Contents of the stormwater site plan will vary with the type and size of the project, and individual site characteristics. It includes a construction stormwater pollution prevention plan (“construction SWPPP”) and a permanent stormwater control plan (“PSC plan”). The stormwater site plan shall be prepared in accordance with the Ecology Manual and/or other city of Bellingham guidance documents including this code.

“Threshold discharge area” means an on-site area draining to a single natural discharge location or multiple natural discharge locations that combine within one-quarter mile downstream (as determined by the shortest flow path). The examples in Figure 15.42.020 illustrate this definition. The purpose of this definition is to clarify how the thresholds of the DOE Manual are applied to project sites with multiple discharge points.

Figure 15.42.020

“Vegetation” means all organic plant life growing on the surface of the earth.

“Water body” means surface waters including rivers, streams, lakes, marine waters, estuaries, and wetlands.

“Watershed master plan,” “the plan” or “the stormwater comprehensive plan” means documents created for the comprehensive management of stormwater for the city of Bellingham urban areas and suburban fringe areas and are adopted by reference. The documents include the current editions of Volume I and II of the 1995 Watershed Master Plan, the Stormwater Management Handbook, the 2007 Stormwater Comprehensive Plan and all future updates to these documents.

“Wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands. (Water bodies not included in the definition of wetlands as well as those mentioned in the definition are still waters of the state.)

Map 15.42.020

[Ord. 2017-03-009 § 4; Ord. 2009-06-041; Ord. 2006-05-047].

15.42.030 General provisions.

A. Abrogation and Greater Restrictions. It is not intended that this chapter repeal, abrogate, or impair any existing regulations, easements, covenants, or deed restrictions. However, where this chapter imposes greater restrictions, the provisions of this chapter shall prevail.

B. Interpretation. The provisions of this chapter shall be held to be minimum requirements in their interpretation and application and shall be liberally construed to serve the purposes of this chapter. [Ord. 10633, 1995].

15.42.040 Regulated activities.

A. Regulated Activities. Consistent with the minimum requirements contained in this chapter, the following activities, unless exempted in subsection (A)(2) of this section, shall not be undertaken without first obtaining approval of the city:

1. New Development.

a. Land-disturbing activities;

b. Structural development, including construction; installation or expansion of a building or other structure;

c. Creation of impervious surfaces where any other city permit is required;

d. Class IV general forest practices that are conversions from timber land to other uses;

e. Subdivision, short subdivision and binding site plans, as defined in RCW 58.17.020.

2. Redevelopment. On an already developed site, the creation or addition of impervious surfaces, structural development including construction, and installation or expansion of a building or other structure, land-disturbing activities, and where any other city permit is required.

B. Exemptions. Commercial agriculture, and forest practices regulated under WAC Title 222, except for Class IV general forest practices that are conversions from timber land to other uses, are exempt from the provisions of this chapter.

Development undertaken by the Washington State Department of Transportation in state highway rights-of-way is regulated by Chapter 173-270 WAC, the Puget Sound highway runoff program.

All other new development and redevelopment is subject to the minimum requirements of this chapter. [Ord. 2017-03-009 § 4; Ord. 10633, 1995].

15.42.050 General requirements.

A. Stormwater Management Plan Adopted. The city of Bellingham’s watershed master plan, as now or hereafter modified, is hereby adopted by reference and is hereinafter referred to as the plan. The plan contains information assembled for the purposes of identifying existing and projected problems, analyzing alternatives leading to recommendations, and preparing a program to implement recommendations. The city expresses no guarantee of the accuracy of the information, although updates will be made as necessary to reflect best available information. The use of information should be accompanied by adequate checks for accuracy along with good engineering practice and judgment.

The director shall be authorized to modify the plan from time to time, in accordance with the city’s adopted policies and procedures, to reflect newly discovered technical data and other updated information.

B. Stormwater Best Management Practices (BMPs).

1. General. BMPs shall be used to control pollution from stormwater. BMPs shall be used to comply with the standards in this chapter. BMPs are in the latest edition of Ecology’s Stormwater Technical Manual, hereinafter referred to as Ecology’s Manual.

2. Experimental BMPs. In those instances where appropriate BMPs are not in Ecology’s Manual or the LID Guidance Manual, experimental BMPs should be considered. Experimental BMPs are encouraged as a means of solving problems in a manner not addressed by the manual in an effort to improve stormwater quality technology. Experimental BMPs must be approved in accordance with the approval process outlined in Ecology’s Manual.

C. Illicit Discharges.

1. Illicit discharges to stormwater drainage systems are prohibited.

2. No person shall throw, drain or otherwise discharge, cause or allow others under its control to throw, drain or otherwise discharge into the stormwater drainage system and/or surface and ground waters any materials other than stormwater.

3. For Basin One of Lake Whatcom, activities and actions that result in the discharge of water exceeding an average of 0.15 pounds of phosphorus per acre per year from a site or that result in the discharge of water exceeding state water quality standards for fecal coliform are considered an illicit discharge.

D. Restrictions on Application of Fertilizers, Mulches, and Soil Amendments Containing Phosphorus, and Requirements for Retail Stores Selling Such Materials.

1. No person shall apply any fertilizer, mulch, or soil amendment to properties within the Bellingham city limits area of Basin One of the Lake Whatcom watershed that is labeled as containing more than zero percent phosphorus or other compounds containing phosphorus, such as phosphate.

2. No fertilizer of any type, mulch, or soil amendment shall be applied when the ground is frozen.

3. No person shall apply, spill, or otherwise deposit fertilizer, mulch, or soil amendments on impervious surfaces. Any fertilizer, mulch, or soil amendment applied, spilled or deposited, either intentionally or accidentally, on impervious surfaces shall be immediately and completely removed.

4. Retail stores selling fertilizer, mulch, or packaged or bulk soil amendments labeled as containing more than zero percent phosphorus or other compounds containing phosphorus, such as phosphate, must display prominently, and within 10 feet of the area containing such products, a sign, with content and layout provided by the city of Bellingham, and of a minimum dimension of two feet by three feet, explaining the Bellingham Municipal Code provision prohibiting application of phosphorus-containing materials in the Lake Whatcom watershed.

5. Retail outlets selling fertilizers, mulches, or soil amendments labeled as containing more than zero percent phosphorus or other compounds containing phosphorus, such as phosphate, must make available for distribution to customers educational materials that explain the provisions of the city of Bellingham’s code provision, describe the need for the elimination of phosphorus sources in the watershed, and summarize guidelines for materials and practices. Such materials must be available within five feet of the area containing such products. The content and layout of these educational materials will be created by the city of Bellingham and made available to retail stores via the city of Bellingham’s website.

6. The city of Bellingham shall make available to the public guidelines for gardening materials and practices in the Lake Whatcom watershed. Such guidelines may change from time to time as required by the development of new products or scientific knowledge of best practices to reduce phosphorus pollution in water bodies.

E. This chapter shall go into effect on February 1, 2011. [Ord. 2017-03-009 § 4; Ord. 2011-01-001; Ord. 2009-06-041; Ord. 2006-05-047; Ord. 2005-06-044; Ord. 10633, 1995].

15.42.060 Approval standards.

A. New Development Requirements. All new development shall provide protection for the quality of the waters of the state of Washington by the application of best management practices and/or source controls.

All new development that requires either a building permit which results in 300 square feet or more of hard surface area or has a land disturbance area greater than 500 square feet shall at a minimum comply with Minimum Requirement No. 2 within subsection (F) of this section, all other applicable federal, state, and local ordinances, codes and regulations for stormwater management, and shall obtain a stormwater permit from the city of Bellingham prior to commencement of activity. In addition, new development that exceeds certain other thresholds, as further identified herein, shall be required to comply with additional minimum requirements as follows:

1. The following new development shall comply with Minimum Requirements No. 1 through No. 5 within subsection (F) of this section:

a. New single-family homes or duplexes; or

b. Developments that create or add 2,000 square feet, or greater, of new, replaced, or new plus replaced hard surface area; or

c. Land-disturbing activity of 5,000 square feet or greater; or

d. A subdivision, or the lots created from a subdivision, that contains two or fewer lots and is not likely to exceed the land disturbance and/or hard surface thresholds from future property development; or

e. Developments within the Lake Whatcom watershed that create or add 120 square feet or greater, of new, replaced or new plus replaced hard surface area; or

f. Land-disturbing activity within the Lake Whatcom watershed of 500 square feet or greater; or

g. Other development that is determined by the public works director to contain a significant risk for the degradation of stormwater.

2. The following new development shall comply with Minimum Requirements No. 1 through No. 9 within subsection (F) of this section:

a. Creation or addition of 5,000 square feet, or more, of new, replaced or new plus replaced hard surface area; or

b. Convert three-fourths acres, or more, of native vegetation to lawn or landscaped areas; or

c. Convert two and one-half acres, or more, of native vegetation to pasture; or

d. One acre or more of land-disturbing activity; or

e. A subdivision containing two or more lots that is likely to exceed the land disturbance and/or hard surface thresholds from future property development; or

f. Other development that is determined by the public works director to contain a significant risk for the degradation of stormwater.

3. Lake Whatcom New Development. In addition to the requirements for new development under subsections (A)(1) and (2) of this section, all new development that drains to Basin One of Lake Whatcom, as shown in BMC 15.42.020, that is subject to Chapter 16.80 BMC, Lake Whatcom Reservoir Regulatory Provisions, and that creates or replaces more than 300 square feet of hard or partially pervious surface shall provide for stormwater management as follows:

a. An engineered stormwater site plan shall be provided, for review and approval, which determines site-specific controls to limit stormwater runoff and phosphorus transport from the total site to levels associated with a predeveloped forested condition. The plan shall at a minimum provide soils reports, ground water studies, hydrologic analyses, appropriate BMPs and BMP maintenance plans to demonstrate the ability to meet this code. Additionally all stormwater site plans shall maintain or create a minimum of 30 percent “natural forested condition” upon the site per Chapter 16.80 BMC.

Any BMP or combination of BMPs will be considered that would lead to successful management of flow and phosphorus transport. Developed flow shall meet the forested flow duration standards of this code and the Ecology Manual. Phosphorus transport through surface flow or interflow shall be limited to an average discharge of no more than 0.15 pounds/acre/year; or

b. If the site has retained or created 75 percent or more of forested/native vegetation on a site per Chapter 16.80 BMC and the site will not exceed 2,000 square feet of hard surfaces or up to 20 percent of the total site, whichever is the lesser, and the site will also not exceed 1,000 square feet of partially pervious surfaces as defined within Chapter 16.80 BMC or up to 10 percent of the total site, whichever is the lesser. And the total of hard surfaces and partially pervious surfaces will not together exceed 25 percent of the total site area nor exceed 2,500 square feet.

If these conditions can be met, stormwater mitigation for the site shall require compliance to the maximum extent practicable with on-site water management BMPs as provided for in the manual; or

4. If the site development creates or replaces more than 120 square feet and less than 300 square feet of hard or partially pervious surfaces and the addition of said surfaces does not cause the property to be in noncompliance with the limits on such surfaces through Chapter 16.80 BMC, the site shall provide mitigation for stormwater and phosphorus transport at the rate of 10 square feet of mitigation for every one square foot of creation or replacement of these surfaces.

Hard surfaces developed under this method shall at a minimum be mitigated to the standard provided for by an on-site stormwater management plan as provided in the Ecology Manual.

Mitigation of partially pervious surfaces shall at a minimum be by way of lawn removal; or other method approved by the city.

5. Construction of phosphorus limiting or flow limiting projects may be permitted outright with a no fee stormwater permit upon review of the facilities for compliance with Lake Whatcom management standards.

6. Gardening and landscape practices that are contained within one or more areas of a property and the total square footage of all areas together do not exceed five percent of the property or 500 square feet, whichever is the greater, are considered exempt gardens. Exempt gardens shall be maintained and located to prevent runoff resultant from direct precipitation, water run-on and irrigation. Exempt garden areas are not exempt from the prohibition on the use of phosphorus-containing products including fertilizers, pesticides or other deleterious materials. Landscape or gardening areas beyond the limit provided herein, and which do not meet definition of phosphorous or flow-limiting BMPs as defined in this chapter, are considered to be partially pervious surfaces and subject to the limitations and requirements of Chapters 15.42 and 16.80 BMC regarding those areas. Exempt gardens that are not in active use for gardening or landscaping purposes for more than 30 days shall provide for the stabilization of the exempt garden by the use of a Type 1 mulch or other approved method.

B. Redevelopment Requirements. All redevelopment shall provide protection for the quality of the waters of the state of Washington by the application of best management practices and/or source controls.

All redevelopment that requires either a building permit which results in 300 square feet or more of hard surface area or has a land disturbance area greater than 500 square feet shall at a minimum comply with Minimum Requirement No. 2 within subsection (F) of this section, all other applicable federal, state, and local ordinances, codes and regulations for stormwater management and shall obtain a stormwater permit from the city of Bellingham prior to commencement of activity. In addition, all redevelopment that exceeds certain thresholds, as further identified herein, shall be required to comply with additional minimum requirements as follows:

1. The following redevelopment shall comply with Minimum Requirements No. 1 through No. 5 within subsection (F) of this section:

a. The new, replaced, or total of new plus replaced hard surfaces is 2,000 square feet or more, or 5,000 square feet or more of land-disturbing activities; or

b. A subdivision, or the lots created from a subdivision, that contain two or fewer lots and is not likely to exceed the land disturbance and/or hard surface thresholds from future property development; or

c. Any redevelopment within the Lake Whatcom watershed that creates or adds 120 square feet or greater of new, replaced or new plus replaced hard surface area; or

d. Any land-disturbing activity within the Lake Whatcom watershed of 500 square feet or greater; or

e. Other development that is determined by the public works director to contain a significant risk for the degradation of stormwater.

2. The following redevelopment shall comply with Minimum Requirements No. 1 through No. 9 within subsection (F) of this section:

a. Creation or addition of 5,000 square feet, or more, of new, replaced or new plus replaced hard surface area; or

b. Converts three-fourths acres, or more, of native vegetation to lawn or landscaped areas; or

c. Converts two and one-half acres, or more, of native vegetation to pasture; or

d. One acre or more of land-disturbing activity; or

e. A subdivision containing two or more lots that is likely to exceed the land disturbance and/or hard surface thresholds from future property development; or

f. Other development that is determined by the public works director to contain a significant risk for the degradation of stormwater.

3. Lake Whatcom Redevelopment. In addition to the requirements for redevelopment under subsections (A)(1) and (2) of this section, all redevelopment that drains to Basin One of Lake Whatcom, as shown in BMC 15.42.020, and that is subject to Chapter 16.80 BMC, Lake Whatcom Reservoir Regulatory Provisions, and that creates or replaces more than 300 square feet of hard or partially pervious surface, shall provide for stormwater management as follows:

a. An engineered stormwater site plan shall be provided, for review and approval, which determines site-specific controls to limit stormwater runoff and phosphorus transport from the total site to levels associated with a predeveloped forested condition. The plan shall at a minimum provide soils reports, ground water studies, hydrologic analyses, appropriate BMPs and BMP maintenance plans to demonstrate the ability to meet this code. Additionally all stormwater site plans shall maintain or create a minimum of 30 percent “natural forested condition” upon the site per Chapter 16.80 BMC.

Any BMP or combination of BMPs will be considered that would lead to successful management of flow and phosphorus transport. Developed flow shall meet the forested flow duration standards of this code and the Ecology Manual. Phosphorus transport through surface flow or interflow shall be limited to an average discharge of not more than 0.15 pounds/acre/year.

b. If the total site has retained or will create 75 percent or more of forested/native vegetation on the site per Chapter 16.80 BMC, and will contain less than 2,000 square feet of hard surfaces, and will not exceed 20 percent hard surfaces on the site, and will contain less than 1,000 square feet of partially pervious surfaces, and will not exceed 10 percent partially pervious surfaces, and the total of hard surfaces and partial pervious surfaces will not exceed 25 percent of the total site area nor will it exceed 2,500 square feet of those combined surfaces; and

If the hard surfaces developed under this method are mitigated to the standard provided for by an on-site water management plan as provided for in this chapter;

Then, the total site development shall be considered to comply fully with stormwater standards; or

4. If the site redevelopment creates or replaces more than 120 square feet and less than 300 square feet of hard or partially pervious surfaces and the addition of said surfaces does not cause the property to be in noncompliance with the limits on such surfaces through Chapter 16.80 BMC, the site shall provide mitigation for stormwater and phosphorus transport at the rate of 10 square feet of mitigation for every one square foot of creation or replacement of these surfaces.

Hard surfaces developed under this method shall at a minimum be mitigated to the standard provided for by an on-site stormwater management plan as provided in the Ecology Manual.

Mitigation of partially pervious surfaces shall at a minimum be by way of lawn removal or other method approved by the city.

5. Construction of phosphorus limiting or flow limiting projects may be permitted outright with a no fee stormwater permit upon review of the facilities for compliance with Lake Whatcom management standards.

6. Gardening and landscape practices that are contained within one or more areas of a property and the total square footage of all areas together do not exceed five percent of the property or 500 square feet, whichever is the greater, are considered exempt gardens. Exempt gardens shall be maintained and located to prevent runoff resultant from direct precipitation, water run-on and irrigation. Exempt garden areas are not exempt from the prohibition on the use of phosphorus-containing products including fertilizers, pesticides or other deleterious materials. Landscape or gardening areas beyond the limit provided herein, and which do not meet definition of phosphorous or flow-limiting BMPs as defined in this chapter, are considered to be partially pervious surfaces and subject to the limitations and requirements of Chapters 15.42 and 16.80 BMC regarding those areas. Exempt gardens that are not in active use for gardening or landscaping purposes for more than 30 days shall provide for the stabilization of the exempt garden by the use of a Type 1 mulch or other approved method.

C. If the runoff from the new impervious surfaces and converted pervious surfaces is not separated from runoff from other surfaces on the project site, the stormwater treatment facilities must be sized for the entire flow that is directed to them.

D. On a case-by-case circumstance, the minimum requirements in subsection (F) of this section may be met for an equivalent (flow and pollution characteristics) area within the same site. For public road projects, the equivalent area does not have to be within the project limits, but must drain to the same receiving water. Approval of equivalency shall be determined by the public works director or his assignee.

E. Additional Requirements and Allowances for New and Redevelopment.

1. For road-related projects, except for projects that drain to Basin One of Lake Whatcom, runoff from the replaced and new hard surfaces (including pavement, shoulders, curbs, and sidewalks) and the converted vegetation areas shall meet all the minimum requirements if the new hard surfaces total 5,000 square feet or more and total 50 percent or more of the existing hard surfaces within the project limits. The project limits shall be defined by the length of the project and the width of the right-of-way.

2. Replaced surfaces may be allowed to be mitigated differently than new surfaces. When required to comply with the forested standard of Minimum Requirement No. 7 in subsection (F) of this section, only 50 percent of the replaced surfaces must be mitigated to comply with the forested standard. The remaining 50 percent of the replaced surfaces may either be considered in the forested condition or if desirous, may be considered in the condition existing as of September 1, 1995, as may be determined using aerial photography or other means acceptable to the city.

3. Other types of redevelopment projects, except for projects that drain to Basin One of Lake Whatcom, shall comply with Minimum Requirements No. 1 through No. 9 for the new and replaced hard surfaces and the converted vegetation areas if the total of new plus replaced hard surfaces is 5,000 square feet or more, and/or the valuation of proposed improvements – including interior improvements – exceeds 50 percent of the assessed value of the existing site improvements.

4. Those projects that meet the definition of redevelopment, only 50 percent of replaced surfaces shall be required to comply with the forested standard of Minimum Requirement No. 7 in subsection (F) of this section. The remaining 50 percent of the replaced surfaces may either be considered in the forested condition or if desirous, may be considered in the condition existing as of September 1, 1995, as may be determined using aerial photography or other means acceptable to the city.

5. Underground utility projects that replace the ground surface with in-kind material or materials with similar runoff characteristics are not subject to redevelopment requirements except construction site erosion control.

F. Minimum Requirements for Stormwater Mitigation. The following are considered the minimum requirements for stormwater mitigation:

1. Minimum Requirement No. 1 – Preparation of Stormwater Site Plans (“SSP”). All projects meeting the thresholds in subsection (A)(1) or (2) of this section shall prepare a stormwater site plan (“SSP”) for the city’s review. SSPs shall be prepared in accordance with the current editions of the Ecology Manual, the city of Bellingham “Development Guidelines and Improvement Standards” and this BMC. This SSP may be incorporated with building, grading or clearing plan sets as applicable. Those projects that are subject to Minimum Requirements No. 1 through No. 9 shall include an engineering report that addresses all elements and minimum requirements of the project’s stormwater management along with an analysis that supports the SSP and the construction stormwater pollution prevention plan (“construction SWPPP”). If the project included construction of conveyance systems, treatment facilities, flow control facilities, structural source control BMPs, bioretention facilities, permeable pavement, vegetated roofs, a rainwater harvest system, and/or newly planted or retained trees for which a flow reduction credit was taken, the applicant shall submit a corrected plan (“record drawings”) to the local government agency with jurisdiction when the project is completed. These should be engineering drawings that accurately represent the stormwater infrastructure of the project as constructed. These corrected drawings must be professionally drafted revisions that are stamped, signed, and dated by a licensed civil engineer registered in the state of Washington.

2. Minimum Requirement No. 2 – Construction Stormwater Pollution Prevention Plan (“Construction SWPPP”).

a. All new development and redevelopment shall comply with construction SWPPP Elements No. 1 through No. 13 as described in this section below.

b. Projects outside the Lake Whatcom watershed in which the new, replaced, or new plus replaced hard surfaces total 2,000 square feet or more, or disturb 5,000 square feet or more of land must prepare a construction SWPPP as part of the stormwater site plan (see subsection (F)(1) of this section). Each of the 13 elements must be considered and included in a construction SWPPP unless site conditions render the element unnecessary and the exemption from that element is clearly justified in the narrative of the SWPPP. The SWPPP shall include, at a minimum, the narrative, the stormwater site plan and copies of best management practice detail sheets that will be utilized as a part of the SWPPP.

c. Projects outside the Lake Whatcom watershed that add or replace less than 2,000 square feet of hard surface and disturb less than 5,000 square feet of land are not required to prepare a construction SWPPP. They must, however, consider all of the 13 elements of construction stormwater pollution prevention detailed below and propose controls for all elements that pertain to the project site within the stormwater site plan.

d. Those projects, that are within the Lake Whatcom watershed, that create or add 200 square feet or greater, of new, replaced or new plus replaced hard surface area or that disturb more than 500 square feet of land shall provide a construction SWPP plan and a stormwater site plan as described above.

e. Elements of Construction Stormwater Pollution Prevention.

i. Element 1 – Preserve Vegetation/Mark Clearing Limits. Prior to beginning land-disturbing activities, including clearing and grading, all clearing limits, sensitive areas and their buffers, and trees that are to be preserved within the construction area should be clearly marked, both in the field and on the plans, to prevent damage and off-site impacts. Plastic, metal, or stake wire fence may be used to mark the clearing limits. Retain the duff layer, native top soil, and natural vegetation in an undisturbed state to the maximum degree practicable.

ii. Element 2 – Establish Construction Access.

(A) Construction vehicle access and exit shall be limited to one route if possible.

(B) Access points shall be stabilized with quarry spall or crushed rock to minimize the tracking of sediment onto public roads.

(C) Wheel wash or tire baths should be located on site, if applicable.

(D) Public roads shall at a minimum be cleaned thoroughly at the end of each day. Sediment shall be removed from roads by shoveling or pickup sweeping and shall be transported to a controlled sediment disposal area. Street washing will be allowed only after sediment is removed in this manner.

(E) Street wash wastewater shall be controlled by pumping back on site, or otherwise be prevented from discharging into systems tributary to state surface waters.

(F) Control street wash wastewater by pumping back on site, or otherwise prevent it from discharging into systems tributary to waters of the state.

iii. Element 3 – Control Flow Rates.

(A) Protect properties and waterways downstream of development sites from erosion and the associated discharge of turbid waters due to increases in the velocity and peak volumetric flow rate of stormwater runoff from the project site.

(B) Properties subject to Minimum Requirement No. 5 and/or No. 7 shall implement controls as early in the development as is practicable to mitigate for flow rates.

(C) Where necessary to comply with Minimum Requirement No. 7, stormwater retention/detention facilities shall be constructed as one of the first steps in grading. Detention facilities shall be functional prior to construction of site improvements (e.g., impervious surfaces).

(D) If permanent infiltration ponds are used for flow control during construction, these facilities should be protected from siltation during the construction phase.

iv. Element 4 – Install Sediment Controls.

(A) Design, install, and maintain effective erosion controls and sediment controls to minimize the discharge of pollutants.

(B) Construct sediment control BMPs (sediment ponds, traps, filters, etc.) as one of the first steps in grading. These BMPs shall be functional before other land-disturbing activities take place.

(C) Minimize sediment discharges from the site. The design, installation and maintenance of erosion and sediment controls must address factors such as the amount, frequency, intensity and duration of precipitation, the nature of resulting stormwater runoff, and soil characteristics, including the range of soil particle sizes expected to be present on the site.

(D) Direct stormwater runoff from disturbed areas through a sediment pond or other appropriate sediment removal BMP, before the runoff leaves a construction site or before discharge to an infiltration facility. Runoff from fully stabilized areas may be discharged without a sediment removal BMP, but must meet the flow control performance standard in subsection (F)(2)(e)(iii)(A) of this section.

(E) Locate BMPs intended to trap sediment on site in a manner to avoid interference with the movement of juvenile salmonids attempting to enter off-channel areas or drainages.

(F) Where feasible, design outlet structures that withdraw impounded stormwater from the surface to avoid discharging sediment that is still suspended lower in the water column.

v. Element 5 – Stabilize Soils.

(A) All exposed and unworked soils shall be stabilized by application of effective BMPs that protect the soil from the erosive forces of raindrop impact and flowing water, and wind erosion. Applicable BMPs include, but are not limited to: temporary and permanent seeding, sodding, mulching, plastic covering, erosion control fabrics and matting, soil application of polyacrylamide (PAM), the early application of gravel base early on areas to be paved, and dust control.

(B) Control stormwater volume and velocity within the site to minimize soil erosion.

(C) Control stormwater discharges, including both peak flow rates and total stormwater volume, to minimize erosion at outlets and to minimize downstream channel and stream bank erosion.

(D) From October 1st through April 30th of each year, no soils shall remain exposed and unworked for more than two days. From May 1st to September 30th of each year, no soils shall remain exposed and unworked for more than seven days. This condition applies to all soils on site, whether at final grade or not.

(E) Stabilize soils at the end of the shift before a holiday or weekend if needed based on the weather forecast.

(F) Minimize the amount of soil exposed during construction activity.

(G) Minimize the disturbance of steep slopes.

(H) Minimize soil compaction and, unless infeasible, preserve topsoil.

(I) Applicable practices include, but are not limited to, temporary and permanent seeding, sodding, mulching, plastic covering, soil application of polyacrylamide (PAM), early application of gravel base on areas to be paved, and dust control.

(J) Soil stabilization measures selected should be appropriate for the time of year, site conditions, estimated duration of use, and potential water quality impacts that stabilization agents may have on downstream waters or ground water.

(K) Soil stockpiles must be stabilized and protected with sediment trapping measures and, where possible, locate away from storm drain inlets, waterways and drainage channels.

(L) Work on linear construction sites and activities, including right-of-way and easement clearing, roadway development, pipelines, and trenching for utilities, shall not exceed the capability of the individual contractor for his portion of the project to install the bedding materials, roadbeds, structures, pipelines, and/or utilities, and to restabilize the disturbed soils, meeting the timing conditions listed above.

(M) In addition, at the discretion of the public works director, those sites unable to maintain the quality of their stormwater discharge may be required to provide soil stabilization to all exposed soil areas regardless of the working status of the area. Upon written notification, the property owner shall provide full stabilization of all exposed soil areas within 24 hours.

vi. Element 6 – Protect Slopes.

(A) Cut and fill slopes shall be designed and constructed in a manner that will minimize erosion. Applicable practices include, but are not limited to, reducing continuous length of slope with terracing and diversions, reducing slope steepness, and roughening slope surfaces (for example, track walking).

(B) Consider soil type and its potential for erosion.

(C) Reduce slope runoff velocities by reducing the continuous length of slope with terracing and diversions, reduce slope steepness, and roughen slope surface.

(D) Divert upslope drainage and run-on waters from off site with interceptors at top of slope. Off-site stormwater should be handled separately from stormwater generated on the site. Diversion of off-site stormwater around the site may be a viable option. Diverted flows shall be redirected to the natural drainage location at or before the property boundary.

(E) Contain down slope collected flows in pipes, slope drains, or protected channels to prevent erosion. Temporary pipe slope drains must handle the peak volumetric flow rate calculated using a 10-minute time step from a Type 1A, 10-year, 24-hour frequency storm for the developed condition. Alternatively, the 10-year one-hour flow rate predicted by an approved continuous runoff model, increased by a factor of 1.6, may be used. The hydrologic analysis must use the existing land cover condition for predicting flow rates from tributary areas outside the project limits. For tributary areas on the project site, the analysis must use the temporary or permanent project land cover condition, whichever will produce the highest flow rates. If using the Western Washington Hydrology Model to predict flows, bare soil areas should be modeled as “landscaped area.”

(F) Provide drainage to remove ground water intersecting the slope surface of exposed soil areas.

(G) Excavated material shall be placed on the uphill side of trenches, consistent with safety and space considerations.

(H) Check dams shall be placed at regular intervals within trenches that are cut down a slope.

(I) Stabilize soils on slopes, as specified in Element No. 5.

vii. Element 7 – Protect Drain Inlets.

(A) All storm drain inlets made operable during construction shall be protected so that stormwater runoff shall not enter the conveyance system without first being filtered or treated to remove sediment.

(B) All approach roads shall be kept clean, and all sediment and street wash water shall not be allowed to enter storm drains without prior and adequate treatment unless treatment is provided before the storm drain discharges to waters of the state.

viii. Element 8 – Stabilize Channels and Outlets.

(A) All temporary on-site conveyance channels shall be designed, constructed and stabilized to prevent erosion from expected peak flows. Channels must handle the peak volumetric flow rate calculated using a 10-minute time step from a Type 1A, 10-year, 24-hour frequency storm for the developed condition. Alternatively, the 10-year, one-hour flow rate indicated by an approved continuous runoff model, increased by a factor of 1.6, may be used. The hydrologic analysis must use the existing land cover condition for predicting flow rates from tributary areas outside the project limits. For tributary areas on the project site, the analysis shall use the temporary or permanent project land cover condition, whichever will produce the highest flow rates. If using the Western Washington Hydrology Model to predict flows, bare soil areas should be modeled as “landscaped area.”

(B) Stabilization, including armoring material, adequate to prevent erosion of outlets, adjacent stream banks, slopes and downstream reaches shall be provided at the outlets of all conveyance systems.

ix. Element 9 – Control Pollutants.

(A) Design, install, implement and maintain effective pollution prevention measures to minimize the discharge of pollutants.

(B) All pollutants, including waste materials and demolition debris, that occur on site during construction shall be handled and disposed of in a manner that does not cause contamination of stormwater.

(C) Cover, containment, and protection from vandalism shall be provided for all chemicals, liquid products, petroleum products, and noninert wastes present on the site (see Chapter 173-304 WAC, as currently enacted or hereafter modified, for the definition of inert waste, which is incorporated herein by this reference).

(D) Maintenance and repair of heavy equipment and vehicles involving oil changes, hydraulic system drain down, solvent and de-greasing cleaning operations, fuel tank drain down and removal, and other activities which may result in discharge or spillage of pollutants to the ground or into stormwater runoff must be conducted using spill prevention measures, such as drip pans. Contaminated surfaces shall be cleaned immediately following any discharge or spill incident. Emergency repairs may be performed on site using temporary plastic placed beneath and, if raining, over the vehicle.

(E) Wheel wash, or tire bath wastewater, shall be discharged to a separate on-site treatment system or to the sanitary sewer.

(F) Application of agricultural chemicals, including fertilizers and pesticides, shall be conducted in a manner and at application rates that will not result in loss of chemical to stormwater runoff. Manufacturers’ recommendations shall be followed for application rates and procedures.

(G) Management of pH-modifying sources shall prevent contamination of runoff and stormwater collected on the site. These sources include, but are not limited to, bulk cement, cement kiln dust, fly ash, new concrete washing and curing waters, waste streams generated from concrete grinding and sawing, exposed aggregate processes, and concrete pumping and mixer washout waters.

(H) Adjust the pH of stormwater if necessary to prevent violations of water quality standards.

(I) Assure that washout of concrete trucks is performed off site or in designated concrete washout areas only. Do not wash out concrete trucks onto the ground, or into storm drains, open ditches, streets, or streams. Do not dump excess concrete on site, except in designated concrete washout areas. Concrete spillage or concrete discharge to surface waters of the state is prohibited.

(J) Obtain written approval from Ecology before using chemical treatment other than CO2 or dry ice to adjust pH.

x. Element 10 – Control Dewatering.

(A) All foundation, vault, and trench dewatering water, which have similar characteristics to stormwater runoff at the site, shall be discharged into a controlled conveyance system, prior to discharge to a sediment trap or sediment pond. Channels must be stabilized, as specified in Element No. 8.

(B) Clean, nonturbid dewatering water, such as well-point ground water, can be discharged to systems tributary to state surface waters, as specified in Element No. 8, provided the dewatering flow does not cause erosion or flooding of the receiving waters. These clean waters should not be routed through sediment ponds with stormwater.

(C) Highly turbid or otherwise contaminated dewatering water, such as from construction equipment operation, clamshell digging, concrete tremie pour, or work inside a cofferdam, shall be handled separately from stormwater at the site.

(D) Other disposal options, depending on site constraints, may include, by way of example: (1) infiltration, (2) transport off site in vehicle, such as a vacuum flush truck, for legal disposal in a manner that does not pollute state waters, (3) on-site treatment using Ecology approved chemical treatment or other suitable treatment technologies, (4) sanitary or combined sewer discharge with local sewer district approval, or there is no other option, (5) use of a sedimentation bag that discharges to a ditch or swale for small volumes of localized dewatering.

xi. Element 11 – Maintain BMPs.

(A) All temporary and permanent erosion and sediment control BMPs shall be maintained and repaired as needed to assure continued performance of their intended function. All maintenance and repair shall be conducted in accordance with BMPs.

(B) Sediment control BMPs shall be inspected weekly or after a runoff-producing storm event during the dry season and daily during the wet season. All projects that disturb an area greater than one acre shall have a certified erosion control lead available to the site. This erosion control lead shall be responsible to provide overview of ongoing day-to-day erosion control requirements. The erosion control lead shall (within 24 hours) report to the city and Department of Ecology any site discharges that exceed state water quality standards that have or are likely to have entered waters of the state.

(C) All temporary erosion and sediment control BMPs shall be removed within 30 days after final site stabilization is achieved or after the temporary BMPs are no longer needed. Trapped sediment shall be removed or stabilized on site. Disturbed soil areas resulting from removal of BMPs or vegetation shall be permanently stabilized.

xii. Element 12 – Manage the Project.

(A) Phasing of Construction. Development projects shall be phased where feasible in order to prevent, to the maximum extent practicable, the transport of sediment from the development site during construction. Revegetation of exposed areas and maintenance of that vegetation shall be an integral part of the clearing activities for any phase.

(B) When establishing these permitted clearing and grading areas, consideration should be given to minimizing removal of existing trees and minimizing disturbance/compaction of native soils except as needed for building purposes. Permitted clearing and grading areas and any other areas required to preserve critical or sensitive areas, buffers, native growth protection easements, or tree retention areas, shall be delineated on the site plans and the development site.

(C) Coordination with Utilities and Other Contractors. The primary project proponent shall evaluate, with input from utilities and other contractors, the stormwater management requirements for the entire project, including the utilities, when preparing the construction SWPPP.

(D) Inspection and Monitoring. All BMPs shall be inspected, maintained, and repaired as needed to assure continued performance of their intended function.

(E) For any project disturbing more than one acre, a certified professional in erosion and sediment control shall be identified in the construction SWPPP and shall be on site or on call at all times. Certification may be through the Washington State Department of Transportation/Associated General Contractors (WSDOT/AGC) Construction Site Erosion and Sediment Control Certification Program or any equivalent local or national certification and/or training program, in the city’s discretion.

(F) Whenever inspection and/or monitoring reveals that the BMPs identified in the construction SWPPP are inadequate, due to the actual discharge of or potential to discharge a significant amount of any pollutant, the SWPPP shall be modified, as appropriate, in a timely manner.

(G) Maintenance of the Construction SWPPP. The construction SWPPP shall be retained on site. The construction SWPPP shall be modified whenever there is a significant change in the design, construction, operation, or maintenance of any BMP.

xiii. Element 13 – Protect Low Impact Development BMPs.

(A) Protect all bioretention and rain garden BMPs from sedimentation through installation and maintenance of erosion and sediment control BMPs on portions of the site that drain into the bioretention and/or rain garden BMPs. Restore the BMPs to their fully functioning condition if they accumulate sediment during construction. Restoring the BMP must include removal of sediment and any sediment-laden bioretention/rain garden soils, and replacing the removed soils with soils meeting the design specification.

(B) Prevent compacting bioretention and rain garden BMPs by excluding construction equipment and foot traffic. Protect completed lawn and landscaped areas from compaction due to construction equipment.

(C) Control erosion and avoid introducing sediment from surrounding land uses onto permeable pavements. Do not allow muddy construction equipment on the base material or pavement. Do not allow sediment-laden runoff onto permeable pavements or base materials.

(D) Pavement fouled with sediments or no longer passing an initial infiltration test must be cleaned using procedures in accordance with the Ecology Manual or the manufacturer’s procedures.

(E) Keep all heavy equipment off existing soils under LID facilities that have been excavated to final grade to retain the infiltration rate of the soils.

3. Minimum Requirement No. 3 – Source Control of Pollution. All known, available and reasonable source control BMPs shall be applied to all projects. Source control BMPs shall be selected, designed, and maintained according to the Ecology Manual. Source controls that are applicable to a project shall be either indicated on the stormwater site plan and/or contained within a stormwater engineering report when such report is required.

4. Minimum Requirement No. 4 – Preservation of Natural Drainage Systems and Outfalls. Natural drainage patterns shall be maintained, and discharges from the project site shall occur at the natural location, to the maximum extent practicable. The manner by which runoff is discharged from the project site must not cause a significant adverse impact to downstream receiving waters and down gradient properties. All outfalls require energy dissipation. Additional information on how to comply with this requirement may be found in the Ecology Manual.

5. Minimum Requirement No. 5 – On-Site Stormwater Management.

a. Applicability. Except as provided below, on-site stormwater management BMPs are required to be constructed in accordance with the following project thresholds, standards, and lists to infiltrate, disperse, and retain stormwater runoff on site to the extent feasible without causing flooding or erosion impacts.

Projects qualifying as flow control exempt in accordance with Minimum Requirement No. 7 do not have to achieve the LID performance standard, nor consider bioretention, rain gardens, permeable pavement, and full dispersion if using List No. 1 or List No. 2 of the Ecology Manual. However, those projects must implement BMP T5.13; BMPs T5.10A, B, or C; and BMP T5.11or T5.12 of the Ecology Manual, if feasible.

b. Thresholds.

i. Projects triggering only Minimum Requirements No. 1 through No. 5 shall either:

(A) Use on-site stormwater management BMPs from List No. 1 of the Ecology Manual for all surfaces within each type of surface in List No. 1; or

(B) Demonstrate compliance with the LID performance standard. Projects selecting this option cannot use rain gardens. They may choose to use bioretention BMPs as described in the Ecology Manual.

ii. Thresholds. Projects triggering Minimum Requirements No. 1 through No. 9 shall meet the requirements stated in Table 2.5.1 of the Ecology Manual.

c. Low Impact Development Performance Standard. Stormwater discharges shall match developed discharge durations to predeveloped durations for the range of predeveloped discharge rates from eight percent of the two-year peak flow to 50 percent of the two-year peak flow. Refer to the standard flow control requirement section in Minimum Requirement No. 7 for information about the assignment of the predeveloped condition. Project sites that must also meet minimum requirement No. 7 shall match flow durations between eight percent of the two-year flow through the full 50-year flow.

6. Minimum Requirement No. 6 – Runoff Treatment.

a. Applicability. All projects subject to this minimum requirement shall utilize on-site stormwater BMPs for the treatment of runoff. Additionally, when the following design thresholds are met or exceeded within a threshold discharge area, an engineered water quality facility shall be provided. All runoff treatment facilities and BMPs shall be designed, sized and provided for in accordance with the Ecology Manual.

b. Thresholds. When assessing the applicability of Minimum Requirement No. 6, only consider those hard and pervious surfaces listed below.

i. The following require construction of stormwater treatment facilities:

(A) Projects in which the total of new, replaced or new plus replaced effective pollution-generating hard surface (PGHS) is 5,000 square feet or more in a threshold discharge area of the project; or

(B) Projects in which the total of new, replaced or new plus replaced effective pollution-generating pervious surfaces (PGPS) – not including permeable pavements – is three-quarters of an acre or more in a threshold discharge area, and from which there will be a surface discharge in a natural or manmade conveyance system from the site.

ii. Additional thresholds for oil control, phosphorus treatment, enhanced treatment, and basic treatment are stated in the Ecology Manual.

c. Additional Requirements. Direct discharge of untreated stormwater from pollution-generating hard surfaces to ground water is prohibited, except for the discharge achieved by infiltration or dispersion of runoff from residential sites through use of on-site stormwater management BMPs in accordance with Chapter 5, Volume V and Chapter 7, Volume V of the Ecology Manual; or by infiltration through soils meeting the soil suitability criteria in Chapter 3 of Volume III of the Ecology Manual. Projects within Basin One of the Lake Whatcom watershed shall meet these standards for water quality in addition to those contained in other portions of this code.

7. Minimum Requirement No. 7 – Flow Control.

a. Applicability. Projects must provide flow control to reduce the impacts of stormwater runoff from hard surfaces and land cover conversions. All projects subject to this minimum requirement shall utilize on-site stormwater BMPs for flow control. Additionally, when the following design thresholds are met or exceeded, an engineered water quantity facility shall be provided. All water quantity facilities and flow control BMPs shall be designed and provided for in accordance with the Ecology Manual. The thresholds and requirements below apply to projects that discharge stormwater directly or indirectly into fresh water. Those projects that meet flow control exemption criteria of the Ecology Manual are eligible to apply for modification to these requirements. Exception: The exemption of flow standards for Lake Whatcom shall only be allowed with the written approval of the public works department. The basis of that approval shall be a finding that no appreciable risk of water quality degradation will result from the exemption.

b. Thresholds. When assessing the applicability of Minimum Requirement No. 7, consider the following:

i. Projects in which the total of new, replaced or new plus replaced effective hard surfaces are 10,000 square feet or more in a threshold discharge area; or

ii. Projects that convert three-fourths acres or more of native vegetation to lawn or landscape, or convert two and one-half acres or more of native vegetation to pasture in a threshold discharge area, and from which there is a surface discharge in a natural or manmade conveyance system from the site; or

iii. Projects that, through a combination of new, replaced or new plus replaced effective impervious surfaces and converted pervious surfaces, cause a 0.1 cubic feet per second increase in the 100-year flow frequency from a threshold discharge area as estimated using the Western Washington Hydrology Model or other approved model using one-hour time steps (or a 0.15 cfs increase using 15-minute time steps); or

iv. Projects within Basin One of the Lake Whatcom watershed.

c. Standard Flow Control Methodology. Stormwater discharges shall match developed discharge durations to predeveloped durations for the range of predeveloped discharge rates from 50 percent of the two-year peak flow up to the full 50-year peak flow. The predeveloped condition to be matched shall be a forested land cover unless reasonable, historic information is provided that indicates the site was prairie prior to settlement (modeled as “pasture” in the Western Washington Hydrology Model); or

This standard requirement is waived for sites that will reliably infiltrate all the runoff from hard surfaces and converted vegetation areas.

d. Flow control BMPs shall be selected, designed, and maintained according to Volume III of the Ecology Manual.

8. Minimum Requirement No. 8 – Wetlands Protection.

a. Applicability. The requirements below apply only to projects whose stormwater discharges into a wetland, either directly or indirectly through a conveyance system. These requirements must be met in addition to meeting Minimum Requirement No. 6 – Runoff Treatment.

b. Thresholds. The thresholds identified in Minimum Requirement No. 6 – Runoff Treatment, and Minimum Requirement No. 7 – Flow Control shall also be applied for discharges to wetlands.

c. Standard Requirement. Discharges to wetlands shall maintain the hydrologic conditions, hydrophytic vegetation, and substrate characteristics necessary to support existing and designated uses. Projects shall comply with Guide Sheets No. 1 through No. 3 in Appendix I-D of the Ecology Manual. The hydrologic analysis shall use the existing land cover condition to determine the existing hydrologic conditions unless directed otherwise by a regulatory agency with jurisdiction.

d. Additional Requirements.

i. The standard requirement does not excuse any discharger from the obligation to apply whatever technology is necessary to comply with state water quality standards, Chapter 173-201A WAC, or state ground water standards, Chapter 173-200 WAC. Additional treatment requirements to meet those standards may be required by federal, state, or local government.

ii. Stormwater treatment and flow control facilities shall not be built within a natural vegetated buffer or wetland, except for:

(A) Necessary conveyance systems as approved by the directors of the city’s public works and planning departments or their designees; or

(B) As allowed in wetlands approved for hydrologic modification and/or treatment in accordance with guidance from the Department of Ecology; or

(C) Where full dispersion of flow within a buffer has been approved as a low impact development practice.

iii. An adopted and implemented basin plan or a total maximum daily load (TMDL, also known as a water clean-up plan) may be used to develop requirements for wetlands that are tailored to a specific basin.

9. Minimum Requirement No. 9 – Operation and Maintenance. An operation and maintenance manual that is consistent with the provisions within the Ecology Manual shall be provided for all proposed stormwater facilities and BMPs, and the party (or parties) responsible for maintenance and operation shall be identified. At private facilities, a copy of the manual shall be retained on site or within reasonable access to the site, and shall be transferred with the property to the new owner. For public facilities, a copy of the manual shall be retained in the appropriate department. A log of maintenance activity that indicates what actions were taken shall be kept and be available for inspection by the city or Ecology.

G. Financial Liability/Public Nuisance Declared. In addition to other remedies, failure to install and/or maintain stormwater facilities as required in this chapter and applicable permits is hereby declared to be a public nuisance, subject to abatement as provided by applicable laws of the city or the state of Washington. The property owner and all persons engaged in development or land-disturbing activity shall be liable, jointly and severally, for all costs incurred by the city in any public nuisance action taken hereunder, or on account of damage or threatened damage to city property or facilities or water bodies, or associated with remedial actions necessitated by the failure to install and/or maintain required stormwater facilities. [Ord. 2017-03-009 § 4; Ord. 2009-06-041; Ord. 2006-05-047].

15.42.070 Maintenance, inspection and enforcement.

A. General Requirements.

1. Maintenance Required. All stormwater facilities shall be maintained in accordance with this chapter and the Stormwater Management Manual. Systematic, routine preventive maintenance is preferred.

2. Minimum Standards. The following are the minimum standards for the maintenance of stormwater facilities:

a. Facilities shall be inspected annually and cleared of debris, sediment and vegetation when they affect the functioning and/or design capacity of the facility.

b. Grassy swales and other biofilters shall be inspected monthly and mowed or replanted as necessary. Clippings are to be removed and properly disposed of.

c. Maintenance of stormwater facilities including LID facilities, which may include, but are not limited to, bioretention, dispersion, and infiltration facilities, amended soils, pervious systems, vegetated roofs, or roof water harvesting, shall be maintained consistent with conditions of approval, and recorded agreements against subject properties, and city standards as enacted at the time of approval.

d. Where lack of maintenance is causing or contributing to a water quality problem or violation, immediate action shall be taken by the subject property owner to correct the problem.

3. Compliance. Property owners are responsible for the maintenance, operation and repair of stormwater drainage systems and BMPs unless the city has accepted maintenance responsibility in writing and a written easement exists granting the city an adequate and sufficient right, in the city’s discretion, to enter the property and conduct these activities. Property owners shall maintain, operate and repair the facilities in compliance with the requirements of this chapter and the DOE Manual (current edition).

B. Administration. The director of public works shall develop and administer an inspection program for stormwater facilities in Bellingham.

C. Inspection Program.

1. Whenever implementing the provisions of the inspection program or whenever there is cause to believe that a violation of this chapter has been or is being committed, the inspector is authorized to inspect stormwater drainage systems within Bellingham to determine compliance with the provisions of this chapter.

2. Development Inspection. All new development and redevelopment shall provide for and install adequate runoff controls per an approved SSP or SWPPP. Failure to provide such required runoff controls prior to or simultaneously with the commencement of land disturbance activities and failure to schedule an inspection for the runoff controls shall result in an order to stop all work upon the site for a minimum of three working days; provided, that such work that is necessary to bring the site into compliance with this code, permits, or an approved SSP or SWPPP shall be allowed to continue.

D. Enforcement.

1. Orders. The director shall have the authority to issue to an owner or person an order to install, maintain or repair a component of a stormwater facility or BMP to bring it in compliance with this chapter, the Ecology Manual (current edition), and/or city regulations. The order shall include:

a. A description of the specific nature, extent and time of the violation and the damage or potential damage that reasonably might occur;

b. A notice that the violation or the potential violation cease and desist and, in appropriate cases, the specific corrective actions to be taken; and

c. A reasonable time to comply, depending on the circumstances.

2. Civil Penalty. In addition to any other remedy or sanction available, a person who fails to comply with a final order issued by the director or city council pursuant to this chapter, or who fails to conform to the terms of an approval issued, shall be subject to a civil penalty and/or a stop work order.

a. Amount of Penalty. The penalty shall be not less than $100.00 or exceed $5,000 for each violation. Each day of continued violation or repeated violation shall constitute a separate violation.

b. Aiding or Abetting. Any person who, through an act of commission or omission, aids or abets in the violation shall be considered to have committed a violation for the purposes of the civil penalty.

c. Notice of Penalty. A civil penalty shall be imposed by the director, by a notice in writing, which shall be served either by certified mail with return receipt requested or by personal service, to the person incurring the same. The notice shall describe the violation, the date(s) of violation, and shall order the acts constituting the violation to cease and desist, and, in appropriate cases, require necessary corrective action within a specific time.

d. Application for Remission or Mitigation. Any person incurring a penalty may apply in writing within 10 days of receipt of the penalty to the director of public works (or designee) for remission or mitigation of such penalty. Upon receipt of the application, the director of public works may remit or mitigate the penalty only upon a demonstration of extraordinary circumstances, such as the presence of information or factors not considered in setting the original penalty. The director’s decision may be appealed to the hearing examiner within 10 days of the decision.

e. Appeal of Civil Penalty. Persons incurring a penalty imposed by the director may appeal in writing within 10 days of the receipt of the notice of penalty to the hearing examiner. The hearing examiner shall hold a de novo hearing to consider the appeal and may affirm, modify or reverse the penalty. The decision of the hearing examiner may be appealed to superior court within 10 days of the date of the hearing examiner’s decision.

3. Penalties Due. Penalties imposed under this section shall become due and payable 10 days after notice of the penalty is mailed or delivered, whichever occurs first, unless application for remission or mitigation is made or an appeal is filed. Whenever an application for remission or mitigation is made or an appeal to the hearing examiner filed (including payment of all applicable hearing examiner fees), penalties shall become due and payable 10 days after the date of the decision regarding the remission or payable after all review proceedings and a final decision has been issued confirming all or part of the penalty. If the amount of a penalty owed is not paid within the time specified in this section, the city may take actions necessary to recover such penalty.

4. Penalty Recovered. Penalties recovered shall be paid to a fund dedicated to enforcement and/or enhancement of the stormwater management program.

E. City Action. In addition to any other remedies the city may have under this chapter or at law or in equity, nothing in this chapter or elsewhere within this code shall prevent the city from effecting repairs or maintenance to stormwater facilities if the director of public works (or designee) determines that imminent danger to public safety, health or welfare, or public or private property, or critical areas or habitat is likely as a result of the actions or inaction of the property owner(s). If the city affects repairs or maintenance, the cost will be charged to the property owner(s) together with any penalties incurred under this chapter and any costs of collection (including attorneys’ fees), all of which shall be considered a lien against the subject property and also collectable as a personal debt against the property owner(s). [Ord. 2017-03-009 § 4; Ord. 2009-06-041; Ord. 2006-05-047; Ord. 2002-10-069 § 33; Ord. 10633, 1995].

15.42.080 Administration.

A. Director. The public works director or a designee shall administer this chapter and shall be referred to as the director. The director shall have the authority to develop and implement administrative procedures to administer and enforce this chapter.

B. Review and Approval. The director may approve, conditionally approve or deny an application for activities regulated by this chapter.

C. Permit Fees. A permit fee is charged for each site based on the following scale:

1. Level One Permit. Containing more than 300 square feet and less than or equal to 1,000 square feet of new or replaced impervious surface or containing more than 500 square feet and less than or equal to 5,000 square feet or clearing or grading. The level one permit fee is $113.00 per site.

2. Level Two Permit. Containing more than 1,000 square feet and less than or equal to 5,000 square feet of new or replaced impervious surface or containing more than 5,000 square feet and less than or equal to 30,000 square feet or clearing or grading. The level two permit fee is $316.00 per site.

3. Level Three Permit. Containing more than 5,000 square feet and less than or equal to one acre of new or replaced impervious surface or containing more than 30,000 square feet of clearing or grading. The level three permit is $633.00 per site.

4. Level Four Permit. Containing more than one acre of impervious surface. The level four permit is $844.00 per acre of impervious surface or portion thereof.

The permit fee shall not be less than $113.00 for any single phase of a project. Multiple permits required for phased projects shall consider the thresholds for each individual phase. Moneys received for this fee shall be deposited into the surface and stormwater utility fund. [Ord. 2005-06-050; Ord. 10633, 1995].

15.42.090 Variances and appeals.

A. Authority. The public works director may grant a variance from the requirements of this chapter. In granting any variance, the director may prescribe conditions that are deemed necessary or desirable for the public interest.

B. Variance Criteria. No variance shall be granted unless the applicant demonstrates to the satisfaction of the director that:

1. The variance is not inconsistent with the public interest and that the objectives of safety, function, environmental protection and facility maintenance, based upon sound engineering judgment, are fully met;

2. That there are special physical circumstances or conditions affecting the property that the strict application of provisions of this chapter would deprive the applicant of the reasonable use of the property;

3. That the granting of the variance will not be unduly detrimental to the public health, safety and welfare, or injurious to other properties in the vicinity and downstream, and to the quality of the waters of the state; and

4. The variance is the least possible exception that could reasonably be granted to comply with the intent of this chapter.

C. Prior Approval. Any variance shall be approved prior to permit approval and construction.

D. Duration of Variance. Variances granted shall be valid for two years, unless granted for a shorter period.

E. Right of Appeal. Except as otherwise provided in this chapter, all actions of the director in the administration and enforcement of this chapter shall be final and conclusive, unless within 30 days of the date of the director’s action, the original applicant or an aggrieved party files a notice of appeal with the hearing examiner for review of the action. The decision of the hearing examiner shall be final and conclusive unless, within 10 days after the decision of the hearing examiner, an aggrieved party appeals the same to Whatcom County superior court. [Ord. 2002-10-069 § 33].

15.42.100 Infractions – Penalty.

A violation of any provision of this chapter, other than as set forth in BMC 15.42.110, shall be considered an infraction, punishable by a stop work order and/or a fine of up to $500.00. Each day of continued violation or repeated violation shall constitute a separate violation. This penalty shall be in addition to any other remedy or sanction provided in this chapter or by other law or in equity.

The court may order, in addition to any fine imposed, that a person found to have committed an infraction shall make restitution to any person damaged by the violation. [Ord. 2017-03-009 § 4; Ord. 10633, 1995].

15.42.110 Misdemeanors – Penalty.

Any violation of this chapter which results in damage to public or private property, other than the property of the violator, in an amount greater than $250.00, or which results in any physical injury to a person, shall be a misdemeanor. For purposes of this section, “damage” shall include cost to restore as well as loss of value.

Each second or subsequent violation of this chapter by any person within a period of three years may be a misdemeanor.

Any violation of this chapter committed intentionally by any person may be a misdemeanor.

Each misdemeanor shall be punishable by a fine not to exceed $1,000. This penalty shall be in addition to any other remedy or sanction provided in this chapter or by other law or in equity.

The court may order, in addition to any fine imposed, that a person found to have committed a misdemeanor shall make restitution to any person damaged by the violation. [Ord. 2017-03-009 § 4; Ord. 2013-02-006 § 6; Ord. 10633, 1995].

15.42.120 Severability.

If any provision of this chapter or its application to any person, entity, or circumstance is held invalid, the remainder of this chapter or the application of the provision to other persons, entities, or circumstances shall not be affected. [Ord. 10633, 1995].