Chapter 13.26
STORM DRAINAGE OF SURFACE WATER – UTILITY, MANAGEMENT AND MAINTENANCE

Sections:

13.26.010    Findings.

13.26.020    Potential hazard declared.

13.26.030    Purpose.

13.26.040    Storm and surface water management utility created – Responsibilities.

13.26.050    Property transferred to utility.

13.26.060    Utility plan.

13.26.070    Utility administered by director.

13.26.080    System of charges.

13.26.090    Charges.

13.26.100    Billing and collection.

13.26.110    Penalties for nonpayment of bills.

13.26.120    Storm and surface water utility account – Annual report.

13.26.130    Reserved.

13.26.140    Appeal of charges, rate adjustments, and credit determinations.

13.26.150    Definitions.

13.26.160    General provisions for permitting.

13.26.170    Regulated activities and allowed activities.

13.26.180    General requirements.

13.26.190    Approval standards.

13.26.200    Minimum requirements.

13.26.210    Contents of a storm water site plan.

13.26.220    Deviation.

13.26.230    Purpose – Maintenance.

13.26.240    Maintenance – General requirements.

13.26.250    Inspection program.

13.26.260    General provisions.

13.26.265    Illicit discharges and connections.

13.26.270    Applicability.

13.26.280    Administration.

13.26.290    Enforcement.

13.26.010 Findings.

A. The city council finds that all real property in the city contributes runoff to the common drainage problem, and that all real property in the city benefits from the storm and surface water utility system in the city.

B. The city council finds that the intensity of development on all parcels of real property, as measured by the square footage of impervious surface area, is an appropriate basis for determination of an individual parcel’s contribution to the problem of storm and surface water runoff.

C. The city council also finds that each owner of a parcel of real property within the city should pay for his or her share of the cost of constructing, operating, maintaining, repairing, improving and replacing drainage facilities in proportion to the amount of runoff contributed to the drainage system.

D. The city council finds that the storm water utility protects all city properties, whether or not those properties contribute to storm water runoff. The storm water utility provides a benefit to all city property owners by protecting groundwater and protecting residents from flooding, landslides, erosion, and water quality degradation. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.020 Potential hazard declared.

The city council finds and declares that, absent effective maintenance, operation, regulation and control, existing storm water drainage conditions in all drainage basins within the city constitute a potential hazard to the health, safety and general welfare of the city. The city council further finds that natural and manmade storm water facilities and conveyances together constitute a storm water drainage system, and that effective regulation and control of storm water through formation, by the city, of a storm and surface water utility require the transfer to the utility of all storm water facilities and conveyances and related rights belonging to the city. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.030 Purpose.

The provisions of this chapter are intended to guide and advise all who conduct new development or redevelopment within the city. The provisions of this chapter establish the minimum level of compliance which must be met to permit a property to be developed or redeveloped.

It is the purpose of this section to:

A. Minimize water quality degradation and control of sedimentation in streams, ponds, lakes, wetlands, and other water bodies;

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

C. Maintain and protect groundwater resources;

D. Minimize adverse impacts of alterations on ground and surface water quantities, locations, and flow patterns;

E. Decrease potential landslide, flood, and erosion damage to public and private property;

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

G. Maintain and protect the city storm water management infrastructure and those downstream;

H. Provide a means of regulating clearing and grading of private and public land while minimizing water quality impacts in order to protect public health and safety;

I. Provide minimum development and redevelopment regulations and construction procedures which will preserve, replace, or enhance, to the maximum extent practical, existing vegetation to preserve and enhance the natural qualities of lands, wetlands, and water bodies;

J. Preserve and enhance the suitability of water for contact recreation and fish habitat; and

K. Protect threatened and endangered species and their habitats. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.040 Storm and surface water management utility created – Responsibilities.

There is created and established pursuant to Chapters 35A.80 and 35.67 RCW, and Article II, Section 11 of the Washington State Constitution, a storm and surface water utility. All references to “the utility” in this chapter refer to the storm and surface water utility. The utility will have authority and responsibility for planning, design, construction, maintenance, administration and operation of all city storm water conveyances and facilities. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.050 Property transferred to utility.

Title and all other incidents of ownership of the following assets are hereby transferred to and vested in the utility: all properties, interests and physical and intangible rights of every nature owned or held by the city, however acquired, insofar as they relate to or concern storm water; further including, without limitation, all properties, interests and rights acquired by adverse possession or by prescription, directly or through another, in and to the drainage or storage, or both, of storm waters, through, under or over lands, watercourses, sloughs, streams, ponds, lakes and swamps, all beginning in each instance at a point where storm waters first enter the system of the city and ending in each instance at a point where the storm waters exit from the system of the city, and in width to the full extent of inundation caused by storm or flood conditions. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.060 Utility plan.

There is hereby specified and adopted as the system and plan of the utility, including a declaration of the estimated costs thereof, the city storm water management plan dated March, 1996. Where there is any conflict or discrepancy between the provisions of the plan and any provision of this chapter, the latter shall control. Said plan may be updated and amended subject to council approval. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.070 Utility administered by director.

The utility shall be administered by the director. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.080 System of charges.

There is imposed a system of rates and charges on each parcel of real property within the city served by or to which is available for service the utility established by this chapter. The charges are found to be reasonable and necessary to fund the current administration, planning, design, construction, operation, maintenance and repair of existing storm and surface water facilities; provided, however, that the city reserves the right to fix, alter, regulate and control the rates and charges. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.090 Charges.

The following utility charges are established for all parcels of real property within the city:

A. Developed Commercial and Industrial Parcels. The storm drainage utility monthly service charge shall be computed by dividing the total amount of measured impervious surface on the property, in square feet, by 2,800 and then multiplying the quotient by the monthly unit rate of $15.50.

B. Developed Single-Family and Two-Family Residential (Duplex). All single-family and two-family residences (“residence” is defined in MMC 17.08.720) shall be billed according to a tiered system. This system shall have three tiers that are based upon percentage of a parcel that is covered with impervious surfaces as follows:

Tier

% Covered

Monthly Rate

1

0 – 40%

$15.50

2

41 – 70%

$25.50

3

71% +

$35.50

C. Developed Multifamily Residential. All residential multifamily parcels shall be charged by impervious surface calculation according to subsection A of this section.

D. Undeveloped Parcels. Undeveloped parcels (lots with less than 750 square feet of impervious surface) shall be charged $5.10 per month and shall be invoiced annually.

E. State Highway Rights-of-Way. State of Washington highway rights-of-way shall be charged consistent with this chapter and Chapter 90.03 RCW including RCW 90.03.525.

F. Service Charge Credit.

1. Credit shall apply to all categories of land use with the exception of vacant/undeveloped, forest and timber land and city streets, roads, and public highways.

2. Low income senior citizens and low income disabled persons receiving relief under RCW 84.36.381 shall receive the following partial exemption from storm water utility charges and surcharge, as applicable:

a. All parcels for which a person qualifies for an exemption under RCW 84.36.381(5)(a) shall be exempt from 40 percent of storm water utility charges.

b. All parcels for which a person qualifies for an exemption under RCW 84.36.381(5)(b)(i) shall be exempt from 60 percent of storm water utility charges.

c. All parcels for which a person qualifies for an exemption under RCW 84.36.381(5)(b)(ii) shall be exempt from 80 percent of storm water utility charges.

G. Detention System Credits. The detention system credits defined below shall be applicable only to detention systems approved prior to February 1, 2006. No detention system credits shall be allowed for any retention or detention systems approved after January 31, 2006.

Credits shall be given to applicants upon approval by the public works director subject to rates pursuant to this chapter as follows:

1. Seventy-Five Percent Credit. Property served by a privately maintained detention system with a 100-year storage/two-year predevelopment release rate shall be given a credit in the amount of 75 percent of the full utility rate. This credit shall also apply to any eligible city-owned and maintained system.

2. Twenty-Five Percent Credit. Property owned by other than the city served by a city-maintained detention system with a 100-year storage/two-year predeveloped release rate shall be given a credit in the amount of 25 percent of the full utility rate.

3. Existing detention system credits shall only be applicable to $8.50 per ESU of the storm drain utility monthly charge. Such credits shall not apply to any monthly charge in excess of $8.50 per ESU.

4. If the city determines at any time that the detention system does not meet the requirements of subsection (G)(1) or (2) of this section, or is not operating at the level of storage/release for which credit is being applied or for which credit has been granted, the director shall have the authority to reduce the credit to the next applicable level, if any, or to eliminate the credit entirely if the system is determined to not comply with the requirements of subsection (G)(1) or (2) of this section.

5. Appeals. A request for reconsideration of the director’s decision to reduce or eliminate any existing credit may be made by providing design calculations and maintenance records that confirm the detention system does meet the design and maintenance requirements for which credit is being applied or for which credit has been granted. The decision of the director shall be final and conclusive, unless within 10 days of the date of the director’s action, the applicant gives written notice of appeal to the hearing examiner for review of the action.

H. Rates shall become effective for the October 2016 billing cycle. (Ord. 1910 § 1, 2017; Ord. 1902 § 1, 2016; Ord. 1867 § 1, 2015; Ord. 1655 § 1, 2006).

13.26.100 Billing and collection.

Utility rates and charges for each parcel of real property within the city shall be computed on a monthly basis. The city shall bill the owner of the served property for the payment of utility rates and charges specified in this chapter; however, the owner may have the bills mailed to a tenant, or agent, but this shall not relieve the owner from liability for utility rates and charges. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.110 Penalties for nonpayment of bills.

A. Collection of and penalties for nonpayment of bills shall be pursuant to the following sections of the Revised Code of Washington which are adopted by reference as though set forth herein in full: RCW 35.67.190, 35.67.200, 35.67.210, 35.67.220, 35.67.230, 35.67.240, 35.67.250, 35.67.260, 35.67.270, and 35.67.280.

B. Pursuant to RCW 35.67.200, accounts are past due after the fifteenth day of the month following billing, or after the first business day following the fifteenth if that date is on a weekend or holiday, and shall bear interest at eight percent per annum, computed on a monthly basis.

C. The city shall have the right and privilege of discontinuing water service to any premises for nonpayment of the service charge for use of the storm and surface water utility of the city in the same manner and subject to the same terms as now or hereafter prescribed by law for discontinuance of water service for nonpayment of water bills pursuant to RCW 35.67.290, which section is adopted by reference as though set forth herein in full. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.120 Storm and surface water utility account – Annual report.

A. Of the money collected through utility rates and charges, $2.50 per ESU shall be deposited in the storm drainage utility capital improvement fund, and all other money collected through the utility rates and charges shall be deposited in the storm water utility fund as established and maintained by the director of finance.

B. The director shall conduct an annual review of the utility’s operations, the total costs of operation and maintenance of the storm water retention, detention, collection and conveyance systems, and the schedule of rates and charges. The director shall submit an annual report to the mayor and city council by February 15th for the preceding calendar year, summarizing the review and containing any recommendations for rate adjustments to:

1. Maintain the proper proportionate distribution of operation and maintenance costs among users and user classes;

2. Ensure generation of sufficient revenue to pay the total operation and maintenance costs for the proper operation, maintenance and improvement of the utility; and

3. Address those portions of previous rate increases attributable to major projects at the conclusion of payments for bonds or debt service related to those projects and determine if conditions exist for a reduction of rates because of the retirement of debt service in light of the total operational requirements of the utility. (Ord. 1910 § 1, 2017; Ord. 1687 § 1, 2007; Ord. 1655 § 1, 2006).

13.26.130 Reserved.

(Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.140 Appeal of charges, rate adjustments, and credit determinations.

A. Any person making a timely payment of the city’s total utility bill who considers the utility charges applied to a parcel to be inaccurate, or who otherwise disagrees with a utility rate determination, including any determination regarding credit pursuant to MMC 13.26.090(F), may apply to the director for a rate adjustment, stating in writing the grounds of the appeal. The director will review the case file and determine whether an adjustment is necessary to provide for reasonable and equitable application of the utility rates and charges.

B. The director of public works shall decide rate adjustments pursuant to Process Type II (Chapter 17.71 MMC, Permit Decision and Appeal Processes). (Ord. 1910 § 1, 2017; Ord. 1902 § 1, 2016; Ord. 1741 § 11, 2009).

13.26.150 Definitions.

For the purposes of this chapter, the definitions shall be as defined below and in the manual referenced in MMC 13.26.180:

A. “Approval” means the proposed work or completed work conforms to this chapter in the opinion of the director.

B. “Critical areas” means those areas defined and regulated pursuant to Chapter 18.16 MMC.

C. “Director” means the public works director or his/her designee.

D. “LID” or “low impact development” is a storm water and land use management strategy that strives to mimic pre-disturbance hydrologic processes of infiltration, filtration, storage, evaporation, and transpiration by emphasizing conservation, use of on-site natural features, site planning, and distributed storm water management practices that are integrated into a project design. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.160 General provisions for permitting.

A. Storm Water Drainage Permits. Any person proposing development or redevelopment of a parcel that falls within the parameters of this chapter shall be required to submit an application for a storm water drainage permit to the city. The application shall include:

1. The name and address of the applicant;

2. The name and address of the property owner;

3. The exact location of the proposed work by street address and/or parcel number;

4. Storm water site plan;

5. Civil drawings and other information required by the manual; and

6. Other information as requested.

The application will be reviewed as determined by the city director.

B. Regulated Activities. Prior to fulfilling the requirements of this chapter, the city shall not grant any approval or permission to conduct a regulated activity. Regulated activities include, but are not limited to, the following permits and approvals: building permit, binding site plan, conditional use permit, grading and clearing permit, street work permit, shoreline substantial development permit, variance, rezone, subdivision, or any subsequently adopted permit or required approval not expressly exempted by this chapter.

C. Permit Issuance. Regulated activities that require a storm water site plan under this chapter shall only be conducted after the city approves the plan pursuant to Process Type I (Chapter 17.71 MMC, Permit Decision and Appeal Processes). Upon approval of the storm water site plan, the city shall issue a storm drainage permit.

D. Storm Drainage Plan Check Fees. A fee for storm drainage plan check shall be charged to all storm drainage plan submittals. The purpose of the fee is to recover all costs associated with the plan review.

The city shall not issue any permits for a parcel until the storm drainage plan check fee has been paid in full.

In accordance with the most current fee schedule, a partial payment of the drainage plan check fee shall be collected at the time the storm drainage plan is submitted to the city. (Ord. 1910 § 1, 2017; Ord. 1741 § 12, 2009; Ord. 1655 § 1, 2006).

13.26.170 Regulated activities and allowed activities.

A. New Development. The minimum requirements discussed in this section are described in the manual as referenced in MMC 13.26.180.

B. Redevelopment. The minimum requirements discussed in this section are described in the manual as referenced in MMC 13.26.180.

C. Exemptions and Exceptions. Exemptions and exceptions are described in the manual as referenced in MMC 13.26.180.

All other new development and redevelopment is subject to the minimum requirements of this chapter. (Ord. 1910 § 1, 2017; Ord. 1702 § 2, 2007; Ord. 1655 § 1, 2006).

13.26.180 General requirements.

A. Storm Water Management Manual Adopted. The Department of Ecology’s 2014 Stormwater Management Manual for Western Washington, including and as amended by Appendix 1 of the National Pollution Discharge Elimination System (NPDES) Phase II general permit, together with any subsequent amendments thereto, is hereby adopted by reference and is referred to as the “manual” in this chapter. Appendix 1 is intended to replace the thresholds, definitions, minimum requirements and exception, adjustment and variance criteria in Volume 1, Chapter 2 of the 2014 DOE Stormwater Management Manual.

B. Storm Water Best Management Practices (BMPs).

1. General. BMPs shall be used to control pollution from storm water. BMPs shall be used to comply with the standards in this chapter. Best management practices are found in the manual.

2. Experimental BMPs. In those instances where appropriate BMPs are not in the manual, experimental BMPs will 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 storm water quality technology. Experimental BMPs must be approved in accordance with the approval process outlined in the manual.

3. Low Impact Development Facilities. For low impact development facilities, the contributing drainage area shall be stabilized prior to directing water to the area. BMP measures shall be applied to prevent compaction and sedimentation of these facilities during construction.

C. Illicit Discharges. Illicit discharges to storm water drainage systems are prohibited as provided in MMC 13.26.265.

D. Quality of Fill Material. All fill material shall be of a quality which will permit the construction of buildings upon the fill. No fill that contains a substantial amount of decomposable materials shall be used. No hydraulic fill shall be permitted unless approved by the city engineer. Any fill that is not clean fill will require a permit from the Tacoma-Pierce County or King County health department.

E. Culvert Requirement. When a driveway is to be constructed across an existing drainage ditch, a suitable culvert or other drainage structure as determined by the director shall be provided at the expense of the abutting property owner. (Ord. 1910 § 1, 2017; Ord. 1757 § 1, 2010; Ord. 1748 § 1, 2009; Ord. 1655 § 1, 2006).

13.26.190 Approval standards.

All storm water site plans prepared for any of the permits and/or approvals listed in MMC 13.26.160 shall be submitted to the director for review and approval. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.200 Minimum requirements.

All minimum requirements are as defined within the currently adopted manual per MMC 13.26.180. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.210 Contents of a storm water site plan.

A. Site Plan Required. Minimum Requirement No. 1 within the manual as adopted by MCC 13.26.180 shall be referenced when a site plan is required.

B. Contents of Plan. Minimum Requirement No. 1 within the manual as adopted by MCC 13.26.180 shall be referenced for the contents of the storm water site plan. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.220 Deviation.

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

B. Application. Any applicant may apply to the director for a deviation from the storm drainage requirements of this chapter with the submission of a completed application and fee pursuant to Chapter 17.70 MMC (Application Requirements).

C. Findings of Fact. The director may grant a deviation to minimum requirements prior to permit approval and construction. A deviation may be granted; provided, that a written finding of fact is prepared by the city engineer that addresses the following:

1. The deviation provides equivalent environmental protection and is in the overriding public interest; and that the objectives of safety, function, environmental protection, and facility maintenance, based upon sound engineering, are fully met;

2. The granting of the deviation will not be detrimental to the public health, nor injurious to other properties in the vicinity and/or downstream, and will not injure the quality of waters of the state;

3. The deviation is the least possible exception that could be granted to comply with the intent of the minimum requirements; and

4. The deviation does not violate any other local, state, county, or federal regulation or ordinance.

D. Prior Approval. Any deviation shall be approved prior to permit approval and construction.

E. Duration of Deviation. Deviations granted by the director shall expire one year from the date of approval. The director may grant successive extensions of up to one year each for good cause if the requested deviation continues to satisfy the standards of approval. The construction permitted under this deviation shall be completed prior to expiration of the deviation.

F. Decision and Appeal. Decisions and appeals to deviations to standards shall be made using Process Type II (Chapter 17.71 MMC, Permit Decision and Appeal Processes). (Ord. 1910 § 1, 2017; Ord. 1741 § 13, 2009; Ord. 1655 § 1, 2006).

13.26.230 Purpose – Maintenance.

The provisions of the this section and MMC 13.26.240 are intended to accomplish the following purposes:

A. Provide for inspection and maintenance of storm water facilities in the city to provide for an effective, functional storm water drainage system.

B. Authorize the public works department to require that storm water facilities be operated, maintained, and repaired in conformance with this chapter.

C. Establish the minimum level of compliance which must be met.

D. Guide and advise all who conduct inspection and maintenance of storm water. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.240 Maintenance – General requirements.

A. Maintenance Required. All storm water facilities shall be maintained in accordance with this chapter and the approved manual. Systematic, routine preventive maintenance is preferred.

B. Minimum Standards. The following are the minimum standards for the maintenance of storm water facilities:

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

2. Where lack of maintenance is causing or contributing to a water quality problem, immediate action shall be taken to correct the problem. Within one month, the director shall revisit the facility to assure that it is being maintained.

C. Maintenance of Drainage Structures. All drainage structures between the property line and the roadway shall be maintained in a safe and usable condition by the abutting property owner.

D. Disposal of Waste from Maintenance Activities. Disposal of waste from maintenance activities shall be conducted in accordance with the minimum functional standards for solid waste handling, Chapter 173-304 WAC, guidelines for disposal of waste materials from storm water maintenance activities, and, where appropriate, the dangerous waste regulations, Chapter 173-303 WAC.

E. Compliance. Property owners are responsible for the maintenance, operation, or repair of storm water drainage systems and BMPs. Property owners shall maintain, operate, and repair these facilities in compliance with the requirements of this chapter and the approved manual. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.250 Inspection program.

A. Inspection. Whenever implementing the provisions of this 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 during regular working hours and at other reasonable times all storm water drainage systems within the city to determine compliance with the provisions of this chapter.

B. Procedures. Prior to making any inspections, the inspector shall present identification credentials, state the reason for the inspection, and request entry.

1. If the property or any building or structure on the property is unoccupied, the inspector shall first make a reasonable effort to locate the owner or other person(s) having charge or control of the property or portions of the property and request entry.

2. If, after reasonable effort, the inspector is unable to locate the owner or other person(s) having charge or control of the property, and has reason to believe the condition of the storm water drainage system creates an imminent hazard to persons or property, the inspector may enter.

3. Unless entry is consented to by the owner or person(s) in control of the property or portion of the property or unless conditions are reasonably believed to exist which create imminent hazard, the inspector shall obtain a search warrant, prior to entry, as authorized by the laws of the state of Washington.

4. The inspector may inspect the storm water drainage system without obtaining a search warrant, provided the inspection can be conducted while remaining on public property or other property on which permission to enter is obtained.

C. Annual Inspection Schedule. The director shall establish a master inspection and maintenance schedule to inspect appropriate storm water facilities that are not owned by the city. Inspections shall be annual. Critical storm water facilities may require a more frequent inspection schedule.

D. Annual Inspection Fee. The fee for the annual inspection shall be per the city’s current fee schedule.

E. Inspection and Maintenance Records. As existing storm water facilities are encountered, they shall be added to the master inspection and maintenance schedule. Records of new storm water facilities shall include the following:

1. As-built plans and locations.

2. Findings of fact from any variance granted by the city.

3. Operation and maintenance requirements and records of inspections, maintenance actions, and frequencies.

4. Engineering reports, as appropriate.

F. Reporting Requirements. The director shall report annually to the city council about the status of the inspections. The annual report may include, but need not be limited to, the proportion of the components found in and out of compliance, the need to upgrade components, enforcement actions taken, compliance with the inspection schedule, the resources needed to comply with the schedule, and comparisons with previous years. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.260 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. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.265 Illicit discharges and connections.

A. Prohibition of Illicit Discharges. No person shall throw, drain, or otherwise discharge, cause or allow others under its control to throw, drain or otherwise discharge into the municipal storm drain system and/or surface and ground waters any materials other than storm water. Illicit discharges are prohibited and constitute a violation of this chapter. Examples of prohibited contaminants include, but are not limited to, the following:

1. Trash or debris.

2. Construction materials.

3. Petroleum products including but not limited to oil, gasoline, grease, fuel oil and heating oil.

4. Antifreeze and other automotive products.

5. Metals in either particulate or dissolved form.

6. Flammable or explosive materials.

7. Radioactive material.

8. Batteries.

9. Acids, alkalis, or bases.

10. Paints, stains, resins, lacquers, or varnishes.

11. Degreasers and/or solvents.

12. Drain cleaners.

13. Pesticides, herbicides, or fertilizers.

14. Steam cleaning wastes.

15. Soaps, detergents, or ammonia.

16. Swimming pool or spa filter backwash.

17. Chlorine, bromine, or other disinfectants.

18. Heated water.

19. Domestic animal wastes.

20. Sewage.

21. Recreational vehicle waste.

22. Animal carcasses.

23. Food wastes.

24. Bark and other fibrous materials.

25. Lawn clippings, leaves, or branches.

26. Silt, sediment, concrete, cement or gravel.

27. Dyes.

28. Chemicals not normally found in uncontaminated water.

29. Any other process-associated discharge except as otherwise allowed in this section.

30. Any hazardous material or waste not listed above.

B. Allowable Discharges. The following types of discharges shall not be considered illicit discharges for the purposes of this chapter unless the public works director determines that the type of discharge, whether singly or in combination with others, is causing or is likely to cause pollution of surface water or ground water:

1. Diverted stream flows.

2. Rising ground water.

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

4. Uncontaminated pumped ground water.

5. Foundation drains.

6. Air conditioning condensation.

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

8. Springs.

9. Uncontaminated water from crawl space pumps.

10. Footing drains.

11. Flows from riparian habitats and wetlands.

12. Discharges from emergency fire fighting activities.

C. Conditional Discharges. The following types of discharges shall not be considered illicit discharges for the purpose of this chapter if they meet the stated conditions, or unless the director determines that the type of discharge, whether singly or in combination with others, is causing or is likely to cause pollution of surface water or ground water:

1. Potable water, including water from water line flushing, hyperchlorinated water line flushing, fire hydrant system flushing, and pipeline hydrostatic test water. Planned discharges shall be dechlorinated to a concentration of 0.1 ppm or less, pH-adjusted, if necessary, and in volumes and velocities controlled to prevent resuspension of sediments in the storm water system.

2. Lawn watering and other irrigation runoff are permitted but shall be minimized through, at a minimum, public education activities and water conservation efforts.

3. Dechlorinated swimming pool discharges. These discharges shall be dechlorinated to a concentration of 0.1 ppm or less, pH-adjusted, if necessary, and in volumes and velocities controlled to prevent resuspension of sediments in the storm water system.

4. Street and sidewalk wash water, water used to control dust, and routine external building wash-down that does not use detergents are permitted if the amount of street wash and dust control water used is minimized. At active construction sites, street sweeping must be performed prior to washing the street.

5. Non-storm water discharges covered by another NPDES permit; provided, that the discharger is in full compliance with all requirements of the permit, waiver, or order and other applicable laws and regulations; and provided, that written approval has been granted for any discharge to the storm drain system.

6. Other non-storm water discharges. The discharges shall be in compliance with the requirements of the city’s storm water pollution prevention plan (SWPPP), which addresses control of such discharges.

D. Prohibition of Illicit Connection.

1. The construction, use, maintenance, or continued existence of illicit connections to the storm drain systems are prohibited and constitute a violation of this chapter.

2. This prohibition expressly includes, without limitation, illicit connections made in the past, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection.

3. A person is considered to be in violation of this section if the person connects a line conveying sewage to the MS4, or allows such a connection to continue.

E. Interpretation. All provisions and terms of this section should be interpreted consistently with the NPDES Phase II municipal storm water permit issued to the city. In the event of a conflict, the NPDES Phase II municipal storm water permit shall govern.

F. Source Control Best Management Practices. Any person causing or allowing discharge to a public drainage facility, natural drainage system, surface and storm water, or ground water shall control contamination in the discharge by implementing appropriate operational source control BMPs, as described in Volume IV of the manual. Failure to implement such practices shall constitute a violation of this chapter. Guidance on designing and implementing BMPs is provided in the standard plans.

G. Implementation of structural BMPs shall be required if operational BMPs are not effective at reducing or eliminating an illicit discharge. Guidance for design of structural BMPs is provided in Volume IV of the manual, herein incorporated by reference.

H. Inspections. Inspections to investigate illicit discharges or connections may be made according to MMC 13.26.250. (Ord. 1910 § 1, 2017; Ord. 1757 § 2, 2010).

13.26.270 Applicability.

When any provision of any other chapter of the Milton Municipal Code conflicts with this chapter, that which provides more environmental protection shall apply unless specifically provided otherwise in this chapter.

The director is authorized to adopt written procedures for the purpose of carrying out the provisions of this chapter. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.280 Administration.

A. Director. The director shall administer this chapter. The director shall have the authority to develop and implement administrative policies and 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. Inspection Authority. The director is directed and authorized to develop an inspection program for storm water facilities in the city.

D. Inspection. All activities regulated by this chapter, except those exempt in MMC 13.26.170, shall be inspected by the director. The director shall inspect projects at various stages of the work requiring approval to determine that adequate control is being exercised. Stages of work requiring inspection include, but are not limited to, preconstruction, installation of BMPs, land disturbing activities, installation of utilities, landscaping, retaining walls, and completion of project. When required by the director, a special inspection and/or testing shall be performed.

E. Enforcement Authority. The director shall have the authority to initiate enforcement of this chapter. (Ord. 1910 § 1, 2017; Ord. 1655 § 1, 2006).

13.26.290 Enforcement.

The following subsections contain the enforcement processes and penalties associated with violations of this chapter. The definitions contained in this chapter supplement this section and shall apply in replacement (where duplicates exist). Reference to “director” in this section shall mean the respective director or his designee for the development services and utility departments. The director or designee has the authority to reassign any of the investigations identified in this section to any other city employee within the director’s supervision or to assign the investigation to another employee with approval by the employee’s supervisor.

A. Civil Violations. The following constitute civil violations of this chapter:

1. General. It is a violation to not comply with any requirement, or to act in a manner prohibited by this chapter, permits or other approvals, correction notices, stop work orders, or notices of violation issued pursuant to this section;

2. Aiding and Abetting. It is a violation to aid, abet, counsel, hire or otherwise procure another person to violate this chapter, permits or other approvals, correction notices, stop work orders, or notices of violation issued pursuant to this section;

3. Interference. It is a violation for any person to interfere with or impede the correction of any violation, or compliance with any correction notices, stop work orders, emergency orders, notices of violation, or the abatement of any nuisance;

4. Altering a Posted Order. It is a violation for any person to remove, obscure, or mutilate any posted order of the director or his designee, including correction notices, stop work orders, emergency orders, or notices of violation issued pursuant to this section; and

5. Continuing Work. It is a violation for any work to be done after service or posting of a notice of violation, emergency order, stop work order, or correction notice until authorization is given by the director or his designee; provided, work necessary to perform the required corrective action may be performed and would not constitute a violation.

B. Liability and Defenses of Responsible Persons.

1. Who Must Comply. It is the intent of this section to place the obligation of compliance with this chapter, permits or other approvals, correction notices, stop work orders, or notices of violation issued pursuant to this section upon responsible person(s).

2. Liability. Each responsible person is jointly and severally liable for violations of this chapter, permits or other approvals, correction notices, stop work orders, or notices of violation issued pursuant to this section. The director, his designee, or an enforcement officer may take enforcement action, in whole or in part, against any responsible person. All applicable civil penalties may be imposed against each responsible person(s).

C. Defenses. A responsible person shall not be liable under this section when the responsible person proves, by a preponderance of the evidence, one of the following:

1. The violation was caused solely by an act of God;

2. The violation was caused solely by another responsible person over whom the defending responsible person had no authority or control, and the defending responsible person could not have reasonably prevented the violation;

3. The violation was caused solely by a prior owner or occupant when the defending responsible person took possession of the subject property without knowledge of the violation, after using reasonable efforts to identify violations; provided, the defending responsible person shall be liable for all continuing, recurrent, or new violations after becoming the owner or occupant of the subject property; or

4. The responsible person implemented and maintained all appropriate drainage control facilities, treatment facilities, flow control facilities, erosion and sediment controls, source controls, and best management practices identified in this chapter, correction notices, stop work orders, or notices of violation to correct a violation, or as otherwise identified and required by the director in writing.

D. Right of Entry – Substantial, Present, or Imminent Danger – Emergency Entry. The director, his designee, or an enforcement officer may enter any property to investigate and correct a condition associated with prohibited discharges, grading, drainage, erosion control, drainage water, or a drainage facility when it reasonably appears that the condition creates a substantial and present or imminent danger to the public health, safety, welfare, the environment, or public or private property without permission or a warrant of abatement or other order from a court with competent jurisdiction only in the case of an extreme emergency placing human life, property, or the environment in immediate and substantial jeopardy, which requires corrective action before either permission or warrant or another court order can be obtained.

E. Enforcement Process. The provisions of this section may be utilized when the director, his designee, or the enforcement officer determines that a violation of this chapter, permits or other approvals, correction notices, stop work orders, or notices of violation issued pursuant to this section has occurred or is occurring.

1. Voluntary Correction Process.

a. At the discretion of the director, his designee, or the enforcement officer, reasonable attempt to secure voluntary correction may be pursued by contacting the responsible person(s) for the violation when possible, explaining the violation, providing education on how to avoid or otherwise correct the violation, and requesting correction.

b. As part of the city’s attempt to secure voluntary compliance, the city may require the responsible party to perform, including but not limited to, the following:

i. Implementation of business practices which prevent the violation from occurring again;

ii. Implementation of more stringent or additional best management practices to mitigate or correct source control to cease the exceedance of the prohibited discharge;

iii. Elimination of the cause or contributing factor to the known or likely violation of water quality standards and of the city’s NPDES permit; or

iv. Construction or installation of a facility or structural modifications to prevent the pollutant from entering the storm and surface water system.

c. In addition to the provisions contained in subsection (E)(1)(b) of this section, during the voluntary correction process, the city may:

i. Issue a correction notice;

ii. Issue a stop work order to cease all ongoing development work or activity, except for work necessary to correct or mitigate the violation, or to regain compliance; or

iii. Execute a voluntary correction agreement.

d. No civil penalty shall be imposed during the voluntary correction process; provided, penalties may be issued in connection with execution of a voluntary correction agreement.

2. Notice of Violation. The director, his designee, or the enforcement officer may issue a notice of violation when the following circumstances occur:

a. When there are violations of this chapter, permits or other approvals, correction notices, stop work orders, or notices of violation issued pursuant to this section;

b. When the violation is determined to be an illicit connection and subsection (C)(4) of this section does not apply;

c. When the director reasonably determines based on the provisions and stated purpose of this chapter that the activity requires issuance of a notice of violation.

F. Procedural Requirements.

1. Contents. The content of a notice of violation or stop work order for purposes of administering this section shall include the following:

a. A description of the violation;

b. A description of the corrective action required to bring the property into compliance;

c. A date by which the corrective action shall be completed; and

d. A description on how to appeal the notice of violation or stop work order.

2. Delivery. The correction notice, stop work order, notice of violation, or stop work order shall be personally served on the responsible person(s), posted conspicuously on the premises, or mailed to responsible person(s) with delivery confirmation.

G. Penalties. The director or hearing examiner, after considering all available information, shall assess a penalty for each violation described in subsection A of this section but the amount of the penalty may be modified based on the mitigating factors set forth below:

1. Schedule of Civil Penalties. The director or hearing examiner shall determine penalties as follows:

a. Maximum Penalty. A violation described in subsection A of this section is subject to a civil penalty of up to $500.00 per day. Each day or portion thereof during which the violation exists is a separate civil violation and may be considered a repeat violation as described in subsection (G)(2) of this section.

b. Commencement Date. The penalty shall commence on the date of the violation, unless otherwise provided for in a notice of violation.

c. Mitigating Factors. The penalty shall be assessed by the director or hearing examiner based on the severity of the violation, taking into account the following mitigating factors described below:

i. Was the responsible party willful or knowing of the violation?

ii. Was the responsible party unresponsive in correcting the violation?

iii. Was there improper operation or maintenance?

iv. Does the violation provide economic benefit for noncompliance?

v. Does the discharge result in adverse economic impact to others?

vi. Will cleanup activities be able to fully mitigate or remediate the impacts?

vii. Is there a history of violations?

viii. Were there unforeseeable circumstances that precluded compliance? and

ix. Did the responsible party make a good-faith effort to comply?

2. Repeat Violations. For repeat violations that occur within two years of a previous violation, the director or hearing examiner may impose the following penalties, taking into account the mitigating factors described in subsection (G)(1) of this section:

a. For the first repeat violation, the penalty may equal up to $1,000 per day;

b. For the second repeat violation, the penalty may equal up to $2,000 per day;

c. For the third repeat violation, the penalty may equal up to $3,000 per day;

d. For the fourth repeat violation, the penalty may equal up to $4,000 per day; and

e. For each additional violation that may occur beyond the fourth repeat violation, the penalty may equal up to $5,000 per day.

3. Allocation of Penalties. In the event a notice of violation is issued against more than one responsible person(s), recoverable penalties, costs, and expenses may be allocated among the responsible person(s) based upon the extent to which each responsible person’s acts or omissions caused the violation. If this factor cannot easily be determined, the following may be considered:

a. Awareness of the violation;

b. Ability to correct the violation;

c. Ability to pay the damages, costs, and expenses;

d. Cooperation with governmental agencies;

e. Degree to which any impact or threatened impact on water or sediment quality, human health, the environment, or public or private property is related to acts or omissions by each responsible person;

f. Degree to which the responsible persons made good-faith efforts to avoid a violation or to mitigate its consequences; and

g. Other equitable factors.

H. Collection of Monetary Penalty and Abatement Costs.

1. The monetary penalty constitutes a personal obligation of the responsible person to whom the notice of violation is directed. Any monetary penalty assessed must be paid to the city at the permit center within 10 calendar days from the date of mailing of the hearing examiner’s decision or a notice from the city that penalties are due;

2. The city attorney or her designee is authorized to take appropriate action to collect the monetary penalty;

3. The city will take appropriate action to collect all monies spent by the city to abate existing violations of this chapter, permits or other approvals, correction notices, stop work orders, or notices of violation issued pursuant to this section. Those costs create a joint and several personal obligation. The city may collect these costs by turning the debt over to a collection agency, filing a civil lawsuit, filing a lien or other legal means;

4. The responsible person named in a notice of violation is not relieved of the duty to correct the violation by paying the penalty associated with such violations.

I. In the event of a conflict between this chapter and any other provision of the Milton Municipal Code or city ordinance providing for a civil penalty, this chapter shall control.

J. For the purposes of this code, whenever “civil infraction” and “civil penalty” are used in any code, ordinance or regulation of the city, these terms shall be deemed to have the same meaning as the terms “civil violation” and “monetary penalty,” respectively, as used herein.

K. If any one or more sections, subsections or sentences of this chapter are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this chapter and the same shall remain in full force and effect.

L. Appeal provisions set forth in MMC 17.78.050 et seq. shall apply to appeals of notice of violation and stop work order issued pursuant to this section. Unless it is timely appealed to the hearing examiner, the notice of violation shall be final. (Ord. 1910 § 1, 2017; Ord. 1862 § 3 (Exh. B), 2015; Ord. 1655 § 1, 2006).