Chapter 13.35
WATER QUALITY – ILLICIT DISCHARGE
Sections:
13.35.005 Purpose.
13.35.010 Definitions.
13.35.020 Discharges into City of Ferndale waters.
13.35.030 Department of Ecology Manual adopted.
13.35.040 Administration and enforcement.
13.35.050 Suits for abatement and injunctive relief.
13.35.060 Construction – Intent.
13.35.005 Purpose.
The purpose of this chapter is to protect the City’s surface and ground water quality by providing minimum requirements for reducing and controlling the discharge of contaminants. The City Council recognizes that water quality degradation can result either directly from one discharge or through the collective impact of many small discharges. Therefore, this chapter prohibits the discharge of contaminants into surface and stormwater and ground water, and outlines preventive measures to restrict contaminants from entering such waters. These measures include the implementation of best management practices (BMPs) by the residents of the City. The Ferndale City Council finds this chapter is necessary to protect the health, safety and welfare of the residents of Ferndale and the integrity of the City’s resources for the benefit of all by: minimizing or eliminating water quality degradation; preserving and enhancing the suitability of waters for recreation, fishing, and other beneficial uses; and preserving and enhancing the aesthetic quality and biotic integrity of the water. The City Council recognizes that implementation of this chapter is required under the Federal Clean Water Act, 33 USC 1251 et seq. In meeting the intent of the Clean Water Act the City Council also recognizes the importance of maintaining economic viability while providing necessary environmental protection and believes this chapter helps achieve both goals. (Ord. 1636 § 1, 2011; Ord. 1537, 2009)
13.35.010 Definitions.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
“AKART” means all known, available, and reasonable methods of prevention, control, and treatment. AKART represents the most current methodology that can be reasonably required for preventing, controlling or abating the pollutants associated with a discharge. AKART applies to both point and nonpoint sources of pollution.
“Best management practices” or “BMPs” means the best available and reasonable physical, structural, managerial or behavioral activities that, when used singly or in combination, eliminate or reduce the contamination of both surface and ground waters.
“Chapter” means this chapter and any administrative rules and regulations adopted to implement this chapter.
“City” means the municipality of the City of Ferndale.
“Clean Water Act” means 33 USC 1251 et seq., as amended.
“Director” means the Director of the City of Ferndale Department of Public Works, other department directors specified in enforcement procedures established in accordance with this chapter, or any designee of those directors.
“Discharge” means throw, drain, release, dump, spill, empty, emit or pour forth any matter or cause or allow matter to flow, run or seep from land or be thrown, drained, released, dumped, spilled, emptied, emitted or poured into water.
“Drainage facility” means the system that collects, conveys, and stores surface and stormwater runoff. “Drainage facility” includes but is not limited to a constructed or engineered stream, pipeline, channel, ditch, swamp, lake, wetland, closed depression, infiltration facility, retention/detention facility, erosion/sedimentation control facility and other drainage structures and appurtenances that provide for drainage.
“Ground water” means all waters that exist beneath the land surface or beneath the bed of any stream, lake, or reservoir, or other body of surface water, whatever may be the geological formation or structure in which such water stands or flows, percolates or otherwise moves.
“National Pollutant Discharge Elimination System” or “NPDES” means the national program for controlling pollutants from point source discharges directly into waters of the United States under the Clean Water Act.
“National Pollutant Discharge Elimination System permit” means an authorization, license, or equivalent control document issued by the Environmental Protection Agency or the Washington State Department of Ecology to implement the requirements of the NPDES program.
“Nonpoint source pollution” means pollution that enters a waterbody from diffuse origins on the watershed and does not result from discernible, confined, or discrete conveyances. Nonpoint source pollution generally results from land runoff, precipitation, atmospheric deposition, drainage, seepage or hydrologic modification. Nonpoint source pollution can include: excess fertilizers, herbicides and insecticides from agricultural lands and residential areas; oil, grease and toxic chemicals from urban runoff and energy production; sediment from improperly managed construction sites, crop and forest lands, and eroding streambanks; salt from irrigation practices and acid drainage from abandoned mines; bacteria and nutrients from livestock, pet wastes and faulty septic tanks; atmospheric depositions and hydromodification.
“Permit” means any written authorization required from the City for any activity on real property.
“Person” means an individual and his or her agent or assign, municipality, political subdivision, government agency, partnership, corporation, business, or any other entity.
“Point discharge” or “point source pollution” means the release of collected and/or concentrated surface and stormwater runoff from a pipe, culvert, or channel.
“Source control BMP” means a BMP intended to prevent contaminants from entering surface and stormwater or ground water including the modification of processes to eliminate the production or use of contaminants. “Source control BMPs” can be either structural or nonstructural. Structural source control BMPs involve the construction of a physical structure on-site or other type of physical modification to a site. An example of a structural source control BMP is building a covered storage area. A nonstructural source control BMP involves the modification or addition of managerial or behavioral practices. An example of a nonstructural source control BMP is using less toxic alternatives to current products or sweeping parking lots.
“State waste discharge permit” means an authorization, license, or equivalent control document issued by the Washington State Department of Ecology in accordance with Chapter 173-216 WAC.
“Stormwater Management Manual for Western Washington” (“DOE Manual” or “Manual”) means the manual, as prepared by and updated by the Department of Ecology, which 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 LID Guidance Manual shall be considered a portion of this manual. The Stormwater Manual is intended to supplement this chapter 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 Ferndale.
“Surface and stormwater” means water originating from rainfall and other precipitation that is found on ground surfaces in drainage facilities, streams, springs, seeps, ponds, lakes and wetlands as well as shallow ground water.
“Treatment BMP” means a BMP intended to remove contaminants once they are already contained in stormwater. Examples of treatment BMPs include oil/water separators, bio-filtration swales, and wet-settling basins. (Ord. 1636 § 1, 2011; Ord. 1537, 2009)
13.35.020 Discharges into City of Ferndale waters.
A. Prohibited Discharges.
1. It is unlawful for any person to discharge any contaminants into surface and stormwater or ground water. Contaminants include, but are not limited to, the following:
a. Trash or debris;
b. Construction materials;
c. Petroleum products including but not limited to oil, gasoline, grease, fuel oil, and heating oil;
d. Anti-freeze and other automotive products;
e. Metals in either particulate or dissolved form;
f. Flammable or explosive materials;
g. Radioactive material;
h. Batteries;
i. Acids, alkalis, or bases;
j. Paints, stains, resins, lacquers or varnishes;
k. Degreasers and solvents;
l. Drain cleaners;
m. Pesticides, herbicides or fertilizers;
n. Steam cleaning wastes;
o. Soaps, detergents or ammonia;
p. Swimming pool backwash;
q. Chlorine, bromine and other disinfectants;
r. Heated water;
s. Domestic animal wastes;
t. Sewage;
u. Recreational vehicle waste;
v. Animal carcasses;
w. Food wastes;
x. Bark and other fibrous materials;
y. Collected lawn clippings, leaves, or branches;
z. Silt, sediment, or gravel;
aa. Dyes, except as stated in subsection (C)(1) of this section;
bb. Chemicals not normally found in uncontaminated water;
cc. Any hazardous material or waste not listed above.
2. Illicit Connections. Any connection identified by the Director that could convey anything not composed entirely of surface and stormwater directly to surface and stormwater or ground water is considered an illicit connection and is prohibited with the following exceptions: connections conveying allowable discharges, connections conveying discharges pursuant to an NPDES permit (other than an NPDES stormwater permit) or a state waste discharge permit, and connections conveying effluent from on-site sewage disposal systems to subsurface soils.
B. Allowable Discharges. The following types of discharges shall not be considered prohibited discharges for the purpose of this chapter unless the Director of Public Works determines that the type of discharge, whether singly or in combination with other discharges, is causing significant contamination of surface and stormwater or ground water:
1. Potable water;
2. Uncontaminated water from crawl space pumps or footing drains;
3. Lawn watering with potable water or collected rainwater;
4. Materials placed as part of an approved habitat restoration or bank stabilization project;
5. Natural uncontaminated surface water or ground water;
6. Flows from riparian habitats and wetlands;
7. The following discharges from boats: engine exhaust, cooling waters, effluent from sinks, showers and laundry facilities and treated sewage from Type I and Type II marine sanitation devices; and
8. Other types of discharges as determined by the Director of Public Works.
C. Exceptions.
1. Dye testing is allowable but requires verbal notification to the City of Ferndale Public Works Department at least one day prior to the date of test. The Health Department is exempt from this requirement.
2. A person does not violate subsection (A) of this section if that person can demonstrate that there are no additional contaminants being discharged from the site above the background conditions of the water entering the site. A person who, under this subsection, is not in violation of subsection (A) of this section is liable for any prohibited discharges through illicit connections, dumping, spills, improper maintenance of BMPs, or other discharges that allow contaminants to enter surface and stormwater or ground water.
3. Emergency response activities or other actions that must be undertaken immediately or within a time too short to allow full compliance with this chapter, in order to avoid an imminent threat to public health or safety, shall be exempt from this section. The Director of Public Works may specify actions that qualify for this exception in City procedures. A person undertaking emergency response activities shall take steps to ensure that the discharges resulting from such activities are minimized. In addition, this person shall evaluate BMPs and the site plan, where applicable, to restrict recurrence. (Ord. 1636 § 1, 2011; Ord. 1537, 2009)
13.35.030 Department of Ecology Manual adopted.
Compliance with this chapter shall be achieved through the use of the best management practices described in the 2005 Department of Ecology Stormwater Management Manual for Western Washington. The 2005 Department of Ecology Stormwater Management Manual for Western Washington, as amended by Sections 1 through 6 of Appendix 1 of the Western Washington Phase II Municipal Stormwater Permit, is hereby adopted as the City’s technical stormwater reference manual. (Ord. 1636 § 1, 2011; Ord. 1537, 2009)
13.35.040 Administration and enforcement.
A. The Director is authorized to implement the provisions of this chapter, including enforcement. The Director of Public Works will coordinate the implementation and enforcement of this chapter with other City of Ferndale departments as appropriate.
B. The City shall initially rely on education and informational assistance to gain compliance with this chapter; however, such education and informational assistance shall not be a prior condition to an enforcement action.
C. All permits issued by the City will include a written advisory on the permit, or provided with the permit, referencing erosion control, runoff, drainage or stormwater. Such writing shall constitute compliance with subsection (B) of this section and no further education or information shall be required prior to any enforcement action.
D. Any law enforcement officer, the City Administrator or the City’s Public Works Director or their designee (“enforcement person”) is authorized to enforce this chapter in accordance with the procedures set forth in FMC 8.08.120 through 8.08.140.
E. Any person who, through an act of commission or omission, aids or abets in a violation shall be considered to have committed the violation for the purposes of a civil penalty and all persons who are determined to have violated this chapter are jointly and severally liable for the purposes of civil penalties.
F. Any civil penalties recovered during the enforcement of this chapter shall be deposited into a fund of the department taking the enforcement action and shall be used for the protection of surface and stormwater or ground water as set forth in this chapter. (Ord. 1636 § 1, 2011; Ord. 1537, 2009)
13.35.050 Suits for abatement and injunctive relief.
In addition to, or as an alternative to any penalty provided herein or by law, whenever the enforcement person determines a violation to exist, the City may proceed in addition to any other remedy provided herein to enjoin and abate the same. (Ord. 1636 § 1, 2011; Ord. 1537, 2009)
13.35.060 Construction – Intent.
This chapter is enacted as an exercise of the City’s power to protect and preserve the public health, safety and welfare. Its provisions shall be exempted from the rule of strict construction and shall be liberally construed to give full effect to the objectives and purposes for which it was enacted. This chapter is not enacted to create or otherwise establish or designate any particular class or group of persons who will or should be especially protected or benefited by the terms of this chapter. The primary obligation of compliance with this chapter is placed upon the person holding title to the property. Nothing contained in this chapter is intended to be or shall be construed to create or form a basis for liability for the City, Department, its officers, employees or agents for any injury or damage resulting from the failure of the person holding title to the property to comply with the provisions of this chapter, or by reason or in consequence of any act or omission in connection with the implementation or enforcement of this chapter by the City, Department, its officers, employees or agents. (Ord. 1636 § 1, 2011; Ord. 1537, 2009. Formerly 13.35.090)