Chapter 13.15 STORMWATER MANAGEMENT AND DISCHARGES

This chapter provides the city with legal authority to implement the requirements of Section 402(p)(3) of the Clean Water Act, 33 U.S.C. Section 1342, and the Porter-Cologne Water Quality Control Act, Water Code Section 13000, et seq., as embodied in the city’s current NPDES permit.

The purpose of this chapter is to establish minimum stormwater management requirements and controls to protect and safeguard the general health, safety and welfare of the public and environment. This chapter seeks to meet that purpose through the following objectives:

A. Minimize increases in stormwater runoff from any development in order to reduce flooding, siltation and stream bank erosion and maintain the integrity of drainage channels;

B. Minimize increases in non-point source pollution caused by stormwater runoff from development that would otherwise degrade local water quality;

C. Minimize the total annual volume of surface water runoff that flows from any specific site during and following development to not exceed the predevelopment hydrologic regime to the maximum extent practicable; and

D. Reduce stormwater runoff rates and volumes, soil erosion and non-point source pollution wherever possible, through stormwater management controls and to ensure that these management controls are properly maintained and pose no threat to public safety. (Ord. 542, 2014)

13.15.020 Definitions.

A. For purposes of this chapter the following terms have the following meanings:

1. “Best management practices” or “BMPs” means schedules of activities, prohibitions of practices, general good housekeeping practices, pollution prevention and educational practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants directly or indirectly to stormwater, receiving waters, or MS4s. BMPs also include treatment practices, operating procedures, and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from raw materials storage. Examples of BMPs may include: public education and outreach, proper planning of development projects, proper cleaning of catch basin inlets and proper sludge or waste-handling and disposal, among others.

2. “Building” means any structure, either temporary or permanent, having walls and a roof, designed for the shelter of any person, animal or property and occupying more than 100 square feet of area.

3. “CASQA” means the California Stormwater Quality Association.

4. “Channel” means a natural or artificial watercourse with a definite bed and banks that conducts continuously or periodically flowing water.

5. “City” means the City of Escalon.

6. “Clean Water Act” means the federal Water Pollution Control Act of 1972, codified at Chapter 26 of Title 33 of the United States Code.

7. “Construction activity” means any soil disturbing activity that requires a building or grading permit from the city, including, but not limited to, clearing, grading, paving, stockpiling, and excavating.

8. “Construction General Permit” means the General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities issued by the State Board, NPDES No. CAS000002, as it currently exists or may be amended and reissued from time to time. The Construction General Permit covers, in part, construction or demolition activity that results in a land disturbance of equal to or greater than one acre. The Construction General Permit is available from the State Board and may be reviewed on the Internet at: http://www.swrcb.ca.gov/water_issues/programs/stormwater/construction.shtml.

9. “Construction site” means the premises where any project that involves any construction activity is located, including projects requiring coverage under the Construction General Permit.

10. “Development” means any construction, rehabilitation, redevelopment or reconstruction of any public or private residential project (whether single-family, multi-unit or planned unit development); industrial, commercial, retail and other nonresidential projects, including public agency projects or mass grading for future construction. It does not include routine maintenance to maintain original line and grade, hydraulic capacity or original purposes of facility, nor does it include emergency construction activities required to immediately protect public health and safety.

11. “Director” means the director of the City of Escalon’s department of public works or an authorized designee.

12. “Discharge” means the release, addition or deposit of any fluid, liquid, solid, flowing substance, or any other material or substance to the MS4.

13. “Erosion and sediment control plan” means a plan that is designed to control erosion and sediment discharges from a construction site during construction activities.

14. “Hazardous material” means any material that, because of its quantity, concentration or physical or chemical characteristics, poses a significant present or potential hazard to human health and safety or to the environment if released into the workplace or the environment.

15. “Hazardous waste” means any hazardous waste having the characteristics identified under or listed pursuant to Section 6921 of Title 42 of the United States Code, but not including any waste the regulation of which has been suspended under the Solid Waste Disposal Act (42 U.S.C. Section 6901 et seq.) by act of Congress.

16. “Illegal discharges” means any discharge to the MS4 system that is prohibited under local, state or federal statutes, chapters, codes or regulations. This includes all nonstormwater discharges except discharges pursuant to a separate NPDES permit and discharges that are exempted or conditionally exempted in accordance with State Water Resources Control Board Water Quality Order No. 2013-0001-DWQ, National Pollution Discharge Elimination System (NPDES) General Permit No. CAS 000004, Waste Discharge Requirements for Storm Water Discharges from Small Municipal Separate Storm Sewer Systems.

17. “Illicit connections” means any human-made conveyance that is connected to the MS4 system without a permit. Examples include channels, pipelines, conduits, inlets or outlets that are connected directly to the MS4 system.

18. “Incidental runoff” means unintended amounts (volume) of runoff from landscape irrigation, such as unintended, minimal over-spray from sprinklers that escapes the area of intended use. Water leaving an intended use area is not considered incidental if it is part of the facility design, if it is due to excessive application, if it is due to intentional overflow or application, or if it is due to negligence.

19. “Industrial or commercial facility” has the meaning set forth for “industrial activity” in Sections 122.2(b)(14)(i) through (xi) of Title 40 of the Code of Federal Regulations.

20. “Larger common plan of development” means a contiguous area where multiple separate and distinct construction activities may be taking place at different times on different schedules under one plan.

21. “Material” means any substance including but not limited to: garbage and debris; lawn clippings, leaves and other vegetation; biological and fecal waste; sediment and sludge; oil and grease; gasoline; paints, solvents, cleaners and any fluid or solid containing chemicals.

22. “Municipal separate storm sewer system” or “MS4” means streets, gutters, conduits, natural or artificial drains, channels and watercourses or other facilities that are owned, operated, maintained or controlled by the city and used for the purpose of collecting, storing, transporting or disposing of stormwater.

23. “New development” means land disturbing activities that fall under the city’s planning or permitting authority; structural development, including construction or installation of a building or structure, creation of impervious surfaces; and land subdivision on an area that has not been previously developed.

24. “Non-point source pollution” means pollution from any source other than from any discernible, confined and discrete conveyances and includes but is not limited to pollutants from agricultural, mining, construction, subsurface disposal and urban runoff sources.

25. “NPDES permit” means a National Pollutant Discharge Elimination System (NPDES) permit administered by the State of California, through its various regional water quality control boards.

26. “Person” means any natural person, corporation, association, partnership or other entity.

27. “Pollutant” means those “pollutants” defined in Section 502(6) of the federal Clean Water Act (33 U.S.C. Section 1362(6)) or incorporated into California Water Code Section 13373. Examples of pollutants include but are not limited to the following:

a. Commercial and industrial waste such as fuels, solvents, detergents, plastic pellets, hazardous material, fertilizers, pesticides, slag, ash and sludge;

b. Metals such as cadmium, lead, zinc, copper, silver, nickel and chromium and nonmetals such as phosphorus and arsenic;

c. Petroleum hydrocarbons such as fuels, lubricants, surfactants, waste oils, solvents, coolants and grease;

d. Excessive eroded soils, sediment and particulate materials in amounts which may adversely affect the beneficial use of the receiving waters, flora or fauna of the state;

e. Animal wastes such as discharge from confinement facilities, kennels, pens, recreational facilities, stables and show facilities; and

f. Substances having characteristics such as pH less than six or greater than nine or unusual coloration or turbidity or excessive levels of fecal coliform, fecal streptococcus or enterococcus.

28. “Porter-Cologne Water Quality Control Act” means that act codified at Chapter 1 of Division 7 of the California Water Code.

29. “Premises” mean any building, lot, parcel, land or portion of land whether improved or unimproved.

30. “Receiving waters” mean surface water that receives regulated and unregulated discharges from activities on land, including, but not limited to, creeks, streams, rivers, lakes, estuaries, groundwater formations, or other bodies of water into which surface water, treated waste, or untreated waste are discharged.

31. “Redevelopment” means land disturbing activities that result in the creation, addition or replacement of exterior impervious surface area on a site on which some past development has occurred and that fall under the city’s planning or permitting authority. Redevelopment does not include trenching, excavation and resurfacing associated with linear underground/overhead projects; pavement grinding and resurfacing of existing roadways; construction of new sidewalks, pedestrian ramps, or bike lanes on existing roadways; or routine replacement of damaged pavement such as pothole repair or replacement of short, noncontiguous sections of roadway.

32. “Regional Board” means the Central Valley Regional Water Quality Control Board.

33. “Runoff” means water and substances carried in it that drains from the surface of an area of land, a building or structure.

34. “SSJID shared facilities” means facilities owned by the South San Joaquin Irrigation District (SSJID) that are also used by the City of Escalon for storm drainage.

35. “Spill” means to cause, allow or permit the flowing, running or falling, especially in an accidental manner, of any liquid, semi-liquid or solid substance or material.

36. “State Board” means the State Water Resources Control Board.

37. “Stormwater” means surface runoff and drainage associated with storm events, which is free of pollutants.

38. “Stormwater management” means the use of structural or nonstructural practices that are designed to reduce stormwater runoff pollutant loads, discharge volumes and/or peak flow discharge rates.

39. “Stormwater runoff” means water flow on the surface of the ground as the result of precipitation.

40. “Stormwater pollution prevention plan” or “SWPPP” means a document which describes the best management practices to be implemented by the owner or operator of a business or construction site to eliminate illicit discharges and/or reduce to the maximum extent practicable pollutant discharges to the MS4.

41. “Structural control measures” means any structural facility designed and constructed to mitigate the adverse impacts of stormwater and runoff.

42. “Urban runoff” means any flow of water originating from urban areas including but not limited to rain, irrigation, wash water and air conditioning condensate.

43. “Watercourse” means a permanent or intermittent stream or other body of water, either natural or manmade, which gathers or carries surface water. (Ord. 542, 2014)

Article II. Prohibitions

13.15.030 Prohibition of illegal discharges.

A. No person shall:

1. Discharge, permit to be discharged or cause to be discharged any nonstormwater into any part of the MS4 or into any part of a watercourse except in compliance with the requirements of this chapter and in compliance with any separate individual or general NPDES permit;

2. Cause, allow or facilitate any illegal discharge;

3. Discharge any material into the MS4 or any watercourse with the city’s jurisdiction that may cause or threaten to cause a condition of pollution, contamination, or nuisance within the meaning of California Water Code Section 13050 or that may cause or contribute to a violation of the city’s NPDES permit, the Clean Water Act or the Porter-Cologne Water Quality Control Act or any applicable water quality standards;

4. Discharge any nonincidental runoff.

B. No person shall discharge or allow the discharge of any of the following types of nonstormwater discharges into the MS4, unless done pursuant to the terms and conditions of a separate NPDES permit or pursuant to an exemption issued by either Regional Board or the State Board:

1. The discharge of untreated wash waters when gas stations, auto repair garages or other type of automotive service facilities are cleaned;

2. The discharge of untreated waste water from mobile auto washing, steam cleaning, mobile carpet cleaning and other such mobile commercial and industrial operations;

3. Discharges from areas where repair of machinery and equipment, including motor vehicles, which are visibly leaking oil, fluid or antifreeze, is undertaken;

4. Discharges of untreated runoff from storage areas of materials containing grease, oil or other hazardous materials and uncovered receptacles containing hazardous materials;

5. Discharges of commercial/municipal swimming pool filter backwash;

6. Discharges of untreated runoff from the washing of toxic materials from paved or unpaved areas; provided, however, that nonindustrial and noncommercial activities which incidentally generate urban runoff, such as the hosing of sidewalks and the noncommercial hand-washing of cars, shall be excluded from this prohibition;

7. Discharges from washing impervious surfaces in industrial/commercial areas which results in a discharge of untreated runoff, unless permitted under a separate NPDES permit;

8. Discharges from the washing out of concrete trucks;

9. Discharges of any pesticide, fungicide or herbicide banned by the United States Environmental Protection Agency or the California Department of Pesticide Regulation; or

10. The disposal of hazardous wastes into trash containers used for municipal trash disposal, where such disposal causes or threatens to cause a direct or indirect discharge to the MS4. (Ord. 542, 2014)

13.15.035 Conditional exemptions to discharge prohibitions.

A. The following discharges shall not constitute illegal discharges or be prohibited pursuant to EMC 13.15.030 unless determined by the director to be a significant source of pollutants, pose a threat to water quality standards, or otherwise meet the requirements of subsection B of this section:

1. Water line flushing;

2. Diverted stream flows;

3. Rising groundwater, where groundwater seepage is not otherwise regulated by a separate NPDES permit;

4. Uncontaminated groundwater infiltration (as defined at 40 CFR 35.2005(20)) to the MS4;

5. Uncontaminated pumped groundwater, provided such discharges are compliant with all applicable permit requirements, including enrollment in any applicable NPDES permit or waste discharge requirement;

6. Discharges from potable water sources;

7. Gravity flow from foundation drains, footing drains and crawl space pumps, when groundwater seepage is not otherwise regulated by a separate NPDES permit or waste discharge requirements, provided such discharges are compliant with all applicable permit requirements;

8. Air conditioning condensation, when not otherwise regulated by a separate NPDES permit;

9. Natural springs;

10. Flows from riparian habitats and wetlands;

11. Dechlorinated swimming pool discharges, when not otherwise regulated by a separate NPDES permit;

12. Individual residential car washing;

13. Discharges or flows from emergency firefighting activities, unless identified as a significant source of pollutants to waters of the United States.

B. Notwithstanding the conditional exemptions provided in subsection A of this section, if the director, independently or at the direction of the Regional Board, determines that a conditionally exempt discharge is a significant source of pollutants, threatens water quality standards, causes or significantly contributes to a violation of any receiving water limitation, results in the conveyance of significant quantities of pollutants to surface waters, or is otherwise a danger to public health or safety, the director may prohibit, limit, or direct the control of such discharge and may take any enforcement option available under this chapter.

C. The prohibition in EMC 13.15.030 shall not apply to irrigation and drainage waters under control of the South San Joaquin Irrigation District (SSJID) that are being transported by SSJID shared facilities.

D. With written concurrence of the Regional Board, the city may exempt in writing other nonstormwater discharges which are neither a source of pollutants to the MS4 system nor waters of the United States. (Ord. 542, 2014)

13.15.040 Prohibition of illicit connections.

A. No person shall:

1. Construct, use, maintain, operate, or utilize any illicit connections to the MS4.

2. Act, cause, permit or suffer any agent, employee, or independent contractor to construct, maintain, operate or utilize any illicit connection.

B. 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. (Ord. 542, 2014)

13.15.050 Incidental runoff.

A. Every person responsible for any premises within the city shall control incidental runoff from the premises by taking the following actions:

1. Detect and correct leaks within 72 hours of learning of the leak;

2. Properly design and aim sprinkler heads;

3. Cease watering during precipitation events;

4. Properly manage ponds containing recycled water such that no discharge occurs in violation of any applicable permit, state or local law or regulation; and

5. Take any action necessary to prevent the discharge of nonstormwater to the MS4 or to the waters of the state or United States. (Ord. 542, 2014)

13.15.060 Waste disposal prohibitions.

A. No person shall throw, deposit, leave, maintain, keep or permit to be thrown, deposited, left or maintained in or upon any public or private property, driveway, parking area, street, alley, sidewalk, component of the MS4 system or water of the United States any refuse, rubbish, garbage, litter or other discarded or abandoned objects, articles and accumulations, including but not limited to leaves, dirt and other landscape debris, so that the same may cause or contribute to pollution or an illegal discharge or cause or contribute to a violation of the requirements of any applicable water quality control plan.

B. The person with maintenance responsibilities over any paved surface must maintain said surface free of dirt or litter. Sweepings from a paved surface shall not be swept or otherwise made or allowed to go into the gutter or roadway, but shall be disposed of in receptacles maintained on such real property as required for garbage disposal.

C. Each person responsible for an animal shall promptly pick up animal waste deposited in public areas and properly dispose of it in a trash receptacle. (Ord. 542, 2014)

13.15.070 Notification of discharges and spills.

A. Notwithstanding other requirements of law, as soon as any person responsible for a premises, facility or operation or responsible for emergency response for a premises, facility or operation has information of any known or suspected release of materials which are resulting or may result in illegal discharges or pollutants discharging into stormwater, the MS4 or waters of the United States from said premises, facility or operation, said person shall take all necessary steps to ensure the discovery, containment and cleanup of such release and shall report any such discharge or spill in the following manner:

1. The discharge or spill of hazardous materials shall be immediately reported to emergency response officials via emergency dispatch services (i.e., by calling 911).

2. The discharge or spill of nonhazardous materials shall be reported as follows:

a. To the city’s public works department in person, by phone or facsimile not later than 5:00 p.m. of the next business day.

b. If the release occurs after 5:00 p.m. on a weekday, on a weekend or holiday, to the stormwater pollution line on the same day and to the director by telephone on the next business day.

c. Notifications in person or by phone shall be confirmed by written notice addressed and mailed to the city’s public works department within three business days of the phone notice. If the discharge of hazardous materials emanates from a commercial or industrial establishment, the owner or operator of such establishment shall also retain an on-site written record of the discharge and the actions taken to prevent its recurrence. Such records shall be retained for at least three years.

B. In addition to the above requirements, release of any hazardous materials, sewage, oil, or petroleum to any waters of the state, or discharged or deposited where it is or probably will be discharged in or on any waters of the state, shall be reported to the State Office of Emergency Services, as required by Sections 13271 and 13272 of California Water Code. (Ord. 542, 2014)

Article III. Reduction of Pollutants in Stormwater

13.15.080 Best management practices required.

A. Authorization to Adopt and Impose Best Management Practices (BMP). Each city department may adopt requirements identifying best management practices for any activity, operation or facility which may cause or contribute to pollution or contamination of stormwater, the MS4 system or waters of the United States. Where best management practice requirements are promulgated or adopted by the city or any federal, State of California or regional agency for any activity, operation or facility which would otherwise cause the discharge of pollutants to the MS4 system or water of the United States, every person undertaking such activity or operation or owning or operating such facility shall comply with such requirements.

B. Responsibility to Implement Best Management Practices. Notwithstanding the presence or absence of requirements promulgated pursuant to subsection A of this section, any person engaged in activities or operations or owning facilities or property which will or may result in pollutants entering stormwater, the MS4 or waters of the United States shall implement best management practices required or approved by the director in accordance with this chapter, or with any local, state, or federal law, rule, regulation, or permit to prevent and reduce such pollutants. (Ord. 542, 2014)

13.15.090 Watercourse protection.

A. Every person responsible for any property through which a watercourse passes shall keep and maintain that part of the bed, bank, and channel of the watercourse within the property free of pollutants. The responsible person for any such property shall not remove healthy bank vegetation beyond that actually necessary for maintenance, nor perform vegetation management in such a manner as to increase the vulnerability of the watercourse to erosion.

B. The person responsible for any property through which a watercourse passes must maintain existing privately owned structures within or adjacent to a watercourse, so that such structures will not become a hazard to the use, function, or physical integrity of the watercourse. Maintenance must be conducted in a manner that does not adversely impact waterway species.

C. All prohibitions and requirements contained in this chapter regarding nonstormwater discharges to the MS4 are extended to watercourses.

D. The person responsible for any property through which a watercourse passes must comply with all laws, rules, and regulations of state and federal agencies who may have jurisdiction over wetlands and waterways. (Ord. 542, 2014)

Article IV. Requirements for Construction, Industrial, New and Redevelopment Activities

13.15.100 Construction activities.

A. Plan Review. The applicant for any building or grading permit and the owner of any property which is the subject of such an application must comply with the terms, conditions, and requirements of any appropriate city department to ensure compliance with this chapter and any applicable permit. Such terms, conditions, and requirements may include, but are not limited to, requirements consistent with CASQA’s Construction Best Management Practice Manual, as it currently exists, and requirements for erosion and sediment controls, soil stabilization, dewatering, source controls, pollution prevention measures and illegal discharges. If the project will be approved without application for a grading permit or building permit, the owner of any property subject to a discretionary land use approval or subdivision map must comply with all terms, conditions and requirements of any appropriate city department to ensure compliance with this chapter or any applicable permit.

B. Compliance with Construction General Permit. Every project that disturbs one acre or more of soil or disturbs less than one acre but is part of a larger common plan of development or sale of one or more acres of disturbed surface land is subject to the Construction General Permit and shall comply with all provisions of such permit. Proof of compliance with the Construction General Permit satisfactory to the director must be submitted prior to obtaining a grading or building permit.

C. Erosion and Sediment Control Plan. The person who possesses the title of the land or the leasehold interest on which a construction activity will occur within the city shall prepare and submit an erosion and sediment control plan prior to and as a condition of issuing a grading or building permit. The erosion and sediment control plan shall contain, at a minimum, appropriate site-specific construction site BMPs, the rationale used for selecting or rejecting BMPs, a quantification of expected soil loss from the BMPs, a list of applicable permits, and evidence that permits have been obtained. No construction activity shall commence before the director issues written approval of the erosion and sediment control plan. A SWPPP developed pursuant to the Construction General Permit may substitute for the erosion and sediment control plan for projects where a SWPPP is developed. In such cases, the SWPPP must comply with this chapter and must be submitted to the city for review and approval.

D. Permit Coverage. Prior to and as a condition of receiving a grading or building permit, the person who possesses the title of the land or the leasehold interest on which a construction activity will occur within the city shall demonstrate existing coverage under applicable permits, including, but not limited to, the State Water Board’s Construction General Permit, State Water Board 401 Water Quality Certification, United States Army Corps 404 Permit, and California Department of Fish and Game 1600 Agreement. The city may require documentation demonstrating coverage by and compliance with any applicable permit, including copies of any notice of intent, stormwater pollution prevention plans, inspection reports, monitoring results, and other information deemed necessary to assess compliance with this chapter or any permit.

E. BMPs. The director may require, as a condition of issuing a grading or building permit, the implementation of BMPs to ensure that the discharge of pollutants from a construction site will be effectively prohibited and will not cause or contribute to a condition of pollution or to an exceedance of water quality standards. The person who possesses the title of the land or the leasehold interest on which a construction activity will occur within the city shall implement such BMPs approved by the director to ensure that discharges of pollutants are effectively prohibited and will not cause or contribute to an exceedance of water quality standards. All construction and grading activities shall comply with applicable laws, including all applicable city ordinances and the city’s NPDES permit regulating discharges into and from the MS4.

F. Cost Recovery. The city shall be reimbursed by the project applicant for all costs and expenses incurred by the city in the review of project plans and inspection of construction sites for compliance with this chapter. The city may elect to require a deposit of estimated costs and expenses, and the actual costs and expenses shall be deducted from the deposit, and the balance, if any, refunded to the project applicant. (Ord. 542, 2014)

13.15.110 Industrial and commercial activities.

A. No person shall operate or cause to be operated any industrial or commercial facility without first obtaining and complying with any required NPDES permit or waste discharge requirements. The city may require, and if required, the owner or operator of any industrial or commercial facility or source of stormwater shall provide, documentation demonstrating coverage by and compliance with any applicable permit, including copies of any notice of intent, stormwater pollution prevention plans, inspection reports, monitoring results, and other information deemed necessary to assess compliance with this chapter or any permit.

B. On receipt of written notice from the city, the owner or operator of any industrial or commercial facility or source of stormwater shall select, install, and after approval from the director, implement and maintain BMPs consistent with the CASQA Industrial/Commercial BMP Handbook, 2003 version, or its equivalent. BMPs must be designed to implement the requirements of this chapter and any applicable permit.

C. The person responsible for any industrial or commercial facility shall enter into an agreement for the operation and maintenance of any structural control measures and to record such agreement with the county recorder’s office, if required by the director. The signature of the owner of the property or any successive owner shall be sufficient for the recording of these terms, conditions and requirements and a signature on behalf of the city shall not be required for recordation.

D. Any person subject to an industrial NPDES stormwater discharge permit shall maintain a spill prevention and response plan as part of their stormwater pollution prevention plan (SWPPP). The methods, procedures, mechanisms and facilities established and utilized for the purpose of preventing accidental discharges or spills of materials with pollution potential shall be provided and maintained at the owner’s or user’s own cost and expense. The SWPPP shall outline the user’s spill prevention and response procedure, describe the nature and location of any chemicals stored on the user’s premises and shall contain procedures for immediately notifying the city and preventing adverse impacts of any discharge of chemicals, substances or materials. (Ord. 542, 2014)

13.15.120 New development and redevelopment activities.

A. All new development and redevelopment projects must be planned, designed and constructed consistent with the post-construction standards in the city’s NPDES permit and in accordance with the post-construction stormwater management requirements of the city, including, but not limited to, the current version of the CASQA New Development and Redevelopment BMP Handbook or its equivalent.

B. As a condition of approval of any new development or redevelopment project, the project proponents and their successors in control of the project and successors in fee title, must provide a written document, deed, agreement or similar writing acceptable to the director, obligating the project proponent, their successors in control of the project and successors in fee title to the underlying property, to assume responsibility for the operation and maintenance of all installed treatment systems and hydromodification controls, if any, for the project.

C. The owner or operator of any installed treatment system or hydromodification control shall provide the director with information and physical access necessary to assess compliance with this chapter, with the city’s NPDES permit, and with any writing establishing operation and maintenance responsibilities.

D. Any area of land, not covered by an impervious surface, from which the natural vegetative cover has been either partially or wholly cleared or removed by development activities shall be landscaped within 10 days from the substantial completion of such clearing and construction. No person shall use or otherwise employ impervious material, such as plastic, placed under decorative rock, bark or other landscape covers in meeting the landscaping requirements under this section. Backyards of residential single-family dwellings which would otherwise be covered by this section are exempt where stormwater is contained on the property. (Ord. 542, 2014)

Article V. Inspection, Monitoring, and Data Collection

13.15.130 Requirement to monitor and analyze.

The director may require by written notice that any person engaged in any activity and/or owning or operating any facility which may cause or contribute to stormwater pollution, illegal discharges and/or nonstormwater discharges to the MS4 or to the waters of the United States is to undertake at said person’s expense such monitoring and analyses and to furnish such reports to the city as the director shall deem necessary for determining that person’s compliance with this chapter. (Ord. 542, 2014)

13.15.140 Authority to enter, inspect, investigate, and collect information.

A. Whenever necessary to make an inspection to enforce any provision of this chapter or whenever the director has cause to believe that there exists or potentially exists, in or upon any premises within the city, any condition which constitutes a violation of this chapter, the director is authorized to enter such premises at all reasonable times for the purpose of inspecting said premises. The director is further authorized to inspect facilities, equipment, practices and operations and to inspect and copy all records at a facility which are related to stormwater compliance. Any request for entry shall state that the property owner or occupant has the right to refuse entry and that in the event such entry is refused, inspection may be made upon issuance of a warrant issued by a court of competent jurisdiction. In the event that the owner or occupant of the premises refuses to allow either the director or persons authorized by the director to enter said premises for the purposes of conducting an inspection authorized by this chapter after the director or a person authorized by the director has asked the owner or occupant of said property to enter thereon for the purposes authorized by this chapter, the city may seek the assistance of a court of competent jurisdiction in order to facilitate the purposes of this section. Inspections shall be based on such reasonable selection processes as may be deemed necessary to carry out the objectives of this chapter, including, but not limited to, random sampling and/or sampling in areas with evidence of stormwater contamination, illegal discharge, nonstormwater discharge to the MS4 or other similar factors.

B. Sampling Authority. The director may inspect, sample and test any facilities, equipment, practices, or operations, area runoff, soils area (including groundwater testing), process discharge, materials within any waste storage area (including any contained contents) and/or treatment system discharge for the purpose of determining the potential for the discharge of pollutants to the MS4. The director may investigate the integrity of all storm drain and sanitary sewer systems, any legal nonconforming connection or other pipelines on the private property using appropriate tests, including, but not limited to, smoke and dye tests or video surveys. The director may take photographs or videotapes, make measurements or drawings and create any other record reasonably necessary to document conditions on the premises.

C. Records Review. The director may inspect records of the owner or person in charge of the day-to-day activities of private property relating to chemicals or processes presently or previously occurring on site, including but not limited to material and/or chemical inventories, facilities maps or schematics and diagrams, material safety data sheets, hazardous waste manifests, business plans, pollution prevention plans, state general permits, stormwater pollution prevention plans, monitoring program plans and any other record(s) relating to illicit connections, illegal discharges, a legal nonconforming connection or any other source of discharge or potential discharge of pollutants to the MS4. Such records must be kept on site and remain available for inspection. Failure to keep records on site and available for inspection shall constitute a violation of this chapter.

D. Monitoring, Analysis and Reporting Authority. The director may erect and maintain or require any person discharging to the MS4 to erect and maintain monitoring devices for the purpose of measuring any discharge or potential source of discharge to the MS4. Upon service of written notice by the director, the burden, including cost, of these activities, analyses and reports, incurred in complying with the requirement, shall, to the extent permitted by law, be borne by the property owner, occupant or operator of the facility or activity for which testing and monitoring has been requested.

E. Cost Recovery. If an inspection pursuant to this section results in an enforcement action, the city may issue an invoice of costs and recover in an enforcement action its reasonable inspection costs. (Ord. 542, 2014)

Article VI. Enforcement

13.15.150 Enforcement authority.

A. The director is authorized to enforce the provisions of this chapter and to exercise any enforcement powers authorized or provided in this chapter, including without limitation the imposition of administrative requirements, orders and penalties pursuant to this chapter, as may be necessary to effectively implement and enforce this chapter.

B. Response Plans. The director may, together with the city attorney, develop and implement an enforcement response plan setting forth enforcement procedures and actions to address repeat and continuing violations of this chapter, a spill response plan setting forth the procedures, roles and responsibilities for investigating, cleaning up and reporting spills, and an illicit discharge response plan setting forth the procedures and responsibilities for investigating and abating illegal discharges. (Ord. 542, 2014)

13.15.160 Administrative remedies.

Without limitation on the enforcement authority set forth elsewhere in this chapter, the director is authorized to exercise any and all of the following administrative remedies to enforce the provisions of this chapter, in addition to those remedies set forth in Chapter 1.08 EMC:

A. Notice of Violation (“NOV”). Whenever the director finds that a person has violated or otherwise failed to meet a requirement of this chapter, the director may order a person to comply with this chapter by either personally serving that person with a written notice or by sending written notice to that person by certified mail. Such notice may require without limitation:

1. The performance of monitoring, analyses and reporting;

2. The elimination of illicit connections or discharges;

3. That violating discharges, practices or operations shall cease and desist;

4. The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property;

5. Payment of a fine to cover administrative and remediation costs; and/or

6. The implementation of source control or treatment BMPs.

If abatement of a violation and/or restoration of affected property is required, the notice shall set forth a deadline by which such remediation or restoration shall be completed. Within 30 days of the receipt of a NOV, or shorter period as may be prescribed in the NOV, the person to whom the NOV has been issued shall provide the director a written explanation or denial of the violation and, if the person does not deny the violation, a plan for the satisfactory correction and prevention thereof, which shall include without limitation specific actions or mitigations required by the director within the timeframe established in the NOV. Submission of this plan shall in no way relieve the person of liability for any violation before or after receipt of the NOV. Said notice shall further advise that, if the violator fails to complete the remediation or restoration described in the written notice provided for under subsection A of this section within the time provided for therein, the city or a contractor designated by the director shall complete the work specified in the notice, and the city shall charge all expenses related to the city or contractor’s performance of said work to the responsible person as provided for under EMC 13.15.230.

B. Cease and Desist Orders. The director may require any person owning or occupying a premises to cease and desist all activities that cause or contribute or threaten to cause or contribute to discharge in violation of this chapter. This order may also require such person to: (1) comply with the applicable provisions of this chapter within a designated period of time; or (2) take such other appropriate remedial or preventative action the director determines to be necessary to prevent the violation from recurring.

C. Notice to Clean and Abate. The director may require any person owning or occupying a premises to clean up and abate any release of one or more pollutants on those premises, which otherwise would result in a violation of this chapter. The director may also order abatement of activities or practices, which otherwise reasonably would result in such a violation.

D. City’s Performance of Work. The director may enter property to perform abatement activities or conduct cleanup work in the event abatement or cleanup activities ordered pursuant to this chapter are not conducted by the established deadline. In the event a violation of this chapter constitutes an imminent danger to public safety or the environment, the director may enter the property from which the violation emanates, conduct abatement activities and restore any property affected by the violation. To the extent reasonably practicable, notice shall be provided to the owner or occupant prior to abatement. If necessary to protect the public safety or the environment, abatement may proceed without prior notice to or consent from the owner or occupant thereof and without judicial warrant.

E. Recovery of Costs. The director may deliver to the owner or occupant of any property, any permittee or any other person who becomes subject to a NOV or other administrative order or to abatement or cleanup activities by the city, an invoice for costs documenting any and all costs incurred by the city in cleaning up a site and issuing the notice of violation or other administrative order and directing payment to the city.

F. Final Order. Unless timely appealed in accordance with EMC 13.15.180, an administrative order shall be effective and final as of the date it is issued by the director. (Ord. 542, 2014)

13.15.170 Civil remedies.

A. Nuisance. Any violation of the prohibitions of this chapter, including, but not limited to, the maintenance or use of any illicit connection or the occurrence of any illegal discharge, shall constitute a threat to the public health, safety and welfare, and is declared and deemed a nuisance pursuant to Government Code Section 38771. Any such nuisance may be abated and/or restored by the director pursuant to Chapter 8.20 EMC.

1. City Abatement. In the event the owner of property, the operator of a facility, a permittee or any other person fails to comply with any provision of an administrative order issued to such owner, operator, permittee or person pursuant to this chapter, the director may request the city attorney to obtain an abatement warrant or other appropriate judicial authorization to enter the property, abate the condition and restore the area. Any costs incurred by the city in obtaining and carrying out an abatement warrant or other judicial authorization may be recovered pursuant to subsection (A)(3) of this section.

a. Court Order to Enjoin or Abate. At the request of the director, the city attorney may seek a court order to enjoin and/or abate the nuisance.

b. Notice to Owner and Occupant. Prior to seeking any court order to enjoin or abate a nuisance or threatened nuisance, the director shall provide notice of the proposed injunction or abatement to the owner and occupant, if any, of the property where the nuisance or threatened nuisance is occurring in accordance with EMC 8.20.090.

2. Emergency Abatement. The city or director may order the abatement of any discharge from any source to the MS4 when, in the opinion of the director, the discharge causes or threatens to cause a condition which presents an imminent danger to the public health, safety, or welfare, or the environment. In emergency situations where the property owner or other responsible party is unavailable and time constraints are such that service of a notice and order to abate cannot be effected without presenting an immediate danger to the public health, safety, or welfare, or the environment or a violation of a NPDES permit, the city may perform or cause to be performed such work as shall be necessary to abate said threat or danger. The costs of any such abatement shall be borne by the owner and shall be collectable in accordance with the provisions of this chapter. If necessary to protect the public safety or the environment, abatement may proceed without prior notice to or consent from the owner or occupant thereof and without judicial warrant.

3. Reimbursement of Costs. All costs incurred by the city in responding to any nuisance, all administrative expenses and all other expenses recoverable under state law, shall be recoverable from the person(s) creating, causing, committing, permitting or maintaining the nuisance in accordance with EMC 13.15.230.

4. Nuisance Lien. All costs owed pursuant to this section may constitute a lien against the property from which the nuisance emanated and a personal obligation against the owner thereof in accordance with Government Code Sections 38773.1 and 38773.5. The owner of record of the property subject to any lien shall be given notice of the lien prior to recording as required by Government Code Section 38773.1. At the direction of the director, the city attorney is authorized to collect nuisance abatement costs or enforce a nuisance lien in an action brought for a money judgment or by delivery to the county assessor of a special assessment against the property in accord with the conditions and requirements of Government Code Section 38773.5.

B. Restraining Order and Injunction. At the request of the director, the city attorney may cause the filing in a court of competent jurisdiction, of a civil action seeking a restraining order or an injunction against any threatened or continuing noncompliance with the provisions of this chapter.

C. Order for Reimbursement. Any temporary, preliminary or permanent injunction issued pursuant hereto may include an order for reimbursement to the city of all costs incurred in enforcing this chapter, including costs of inspection, investigation and monitoring, the costs of abatement undertaken at the expense of the city, costs relating to restoration of the environment and all other expenses as authorized by law.

D. Damages. The director may cause the city attorney to file an action for civil damages in a court of competent jurisdiction seeking recovery of: (1) all costs incurred in enforcement of this chapter, including, but not limited to, costs relating to investigation, sampling, monitoring, inspection, administrative expenses, all other expenses as authorized by law, and consequential damages, (2) all costs incurred in mitigating harm to the environment or reducing the threat to human health, (3) damages for irreparable harm to the environment; (4) the reasonable costs of preparing and bringing legal action under this subsection; and (5) attorneys’ fees.

E. Damages from Trespass or Nuisance on Public Land. The city attorney is authorized to file actions for civil damages resulting from any trespass or nuisance occurring on public land or to the MS4 from any violation of this chapter where the same has caused damage, contamination or harm to the environment, public property or the MS4. (Ord. 542, 2014)

13.15.180 Appeal.

Any person subject to an administrative enforcement action, who is required to perform monitoring, analyses, reporting and/or corrective activities by the director, or who is otherwise aggrieved by any decision of the director, may appeal the decision to the city manager. Such appeal shall be in writing, shall fully state all legal and factual bases for the appeal, and shall be filed with the city manager within 10 days following the receipt of the written enforcement action or decision was served on the person. Hearing on the appeal before the city manager or his or her designee shall take place within 15 days from the date of city’s receipt of the notice of appeal. The decision of the city manager or designee shall be in writing, shall set forth the city manager’s findings, and shall be final. Any appeal that does not satisfy all of the requirements of this chapter shall be invalid, and shall not be heard or considered by the city manager, in which case the director’s decision shall be final. (Ord. 542, 2014)

13.15.190 Criminal remedies.

A. Any violation of this chapter may be punishable as a misdemeanor.

B. Infractions. Any person who may otherwise be charged with a misdemeanor under this chapter may be charged, at the discretion of the city attorney, with an infraction punishable by a fine of not more than $100.00 for a first violation, $200.00 for a second violation within a 12-month period, and a fine not exceeding $500.00 for each additional violation occurring within a 12-month period.

C. Misdemeanors. Notwithstanding any other provision of this code, any person who negligently or knowingly violates any provision of this chapter, undertakes to conceal any violation of this chapter, continues any violation of this chapter after notice thereof, or violates the terms, conditions and requirements of any permit issued pursuant to this chapter shall be guilty of a misdemeanor punishable by a fine of not more than $1,000 or by imprisonment for a period of not more than six months, or both. (Ord. 542, 2014)

13.15.200 Strict liability.

A. By securing a permit from the city for development, encroachment, or the construction of a work improvement the permittee shall be strictly liable, in any criminal proceeding, for allowing or failing to prevent a violation of this chapter by the permittee, its employees, subcontractors or material men.

B. In any prosecution for a violation of this chapter against a permittee based on the act or omissions of an employee, subcontractor, or material men it shall only be required that it be shown that the permittee was issued a development, encroachment, or construction permit and that a violation of this chapter occurred at the site for which a permit was issued. (Ord. 542, 2014)

13.15.210 Compensatory action.

In lieu of enforcement proceedings, penalties and remedies authorized by this chapter, the director may provide a violator with alternative compensatory actions, such as storm drain stenciling, attendance at compliance workshops, creek cleanup, etc. (Ord. 542, 2014)

13.15.220 Remedies.

Remedies provided under this chapter are in addition to and do not supersede or limit any and all other remedies, civil or criminal. The remedies provided for herein shall be cumulative and not exclusive. (Ord. 542, 2014)

13.15.230 Costs and expenses of enforcement – Civil penalties – Authorization for special assessment against subject property – Notice.

A. The city shall be entitled to reimbursement from any person violating any requirement or provision of this chapter for all costs and expenses incurred in connection with the enforcement of this chapter. Such reimbursable costs and expenses shall include, but are not limited to, costs of investigation, administrative overhead, out-of-pocket expenses, costs of administrative hearings, costs of suit, salaries, attorney fees, expert fees, testing and monitoring expenses, and other expenses recoverable under state law, incurred during any inspection or investigation conducted pursuant to this chapter.

B. The director shall keep an itemized statement of costs and expenses incurred by the city in enforcing the provisions of this chapter, the costs and expenses incurred by the city in causing the owner or responsible person to abate the violation of any provision of this chapter and the civil penalties imposed pursuant to this section. The costs and expenses, including, but not limited to, the incidental expenses of enforcing this chapter or causing the owner or responsible person to abate the violation of this chapter, and the civil penalties, shall be billed to the owner or responsible person and shall become due and payable 30 days thereafter. The term “incidental expenses” shall include, but not be limited to, personnel costs, both direct and indirect, for administration and enforcement including, but not limited to, attorneys’ fees; costs incurred in inspecting the property; costs incurred in documenting the violation; the expenses and costs of the city in preparation of notices, specifications and contracts and in inspecting the subject premises or property; and the cost of preparing, printing and mailing the notices and documents hereunder. The director shall provide a copy of this statement of costs, expenses and civil penalties to the owner of the subject premises or property and to any responsible person(s). The owner of the subject premises or property, as well as any responsible person(s) shall be liable and responsible for, and required to pay, all such costs, expenses and civil penalties.

C. The owner and/or responsible person(s) may request an administrative hearing before the city council to appeal the statement of costs, expenses and civil penalties. The request for a hearing shall be filed with the city clerk in writing within 10 days of receipt of the statement, and shall fully state all factual and legal bases for the appeal. Any appeal that does not fully satisfy all of the requirements of this section shall be invalid and shall not be heard by the city council, in which case the statement of costs, expenses and civil penalties shall be final.

D. For any appeal satisfying the requirements of this section, the city council shall review the statement of costs, expenses and civil penalties and any evidence presented by the owner or responsible person(s), as well as the director, and shall affirm, overrule or modify the decision of the director in imposing the costs, expenses and/or civil penalties. The city council shall consider in making its decision: (1) the nature, circumstances, extent and gravity of the violation; (2) the extent to which the violation was willful and/or intentional; and (3) whether or to what extent the violation has continued or recurred. The city council’s decision shall be in writing, shall state the city council’s findings, and shall be mailed to the owner and all responsible persons. The decision of the city council shall be final.

E. If the property owner does not pay the costs, expenses and civil penalties in full within 30 days after receipt of the statement of costs pursuant to subsection B of this section or, if requested, after any decision on appeal by the city council pursuant to subsection C of this section which confirms in whole or in part the costs, expenses and civil penalties, the costs, expenses and civil penalties shall become a special assessment against the real property upon which the violation(s) of this chapter occurred. The assessment shall continue until it is paid, together with the maximum allowable interest rate, not exceeding 12 percent a year computed from the date of confirmation of the statement until payment. The assessment shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All acts applicable to levy, collection and enforcement of municipal taxes apply to this special assessment.

F. The city shall file in the office of the county recorder a certificate substantially in the following form:

NOTICE OF SPECIAL ASSESSMENT

Under the authority of Government Code section 38773.5 and chapter 13.15 of the Escalon Municipal Code, the City did on ______________, ______, enforce the provisions of Escalon Municipal Code chapter 13.15, the violation of which is deemed a public nuisance, upon the real property hereunder described and then on _________, _____, did assess the costs, expenses and civil penalties of the enforcement upon the real property and/or the costs and expenses of causing the owner or responsible person to comply with the provisions of chapter 13.15. The City of Escalon claims a special assessment on the real property for such costs, expenses and civil penalties in the amount of $_____________. This amount is a special assessment against the real property until it is paid, with interest at the rate of _____ a year from _______, ____ (insert date of confirmation of statement), and discharged of record. The assessment shall be collected at the same time and in the same manner as ordinary municipal taxes are collected and shall be subject to the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All acts applicable to levy, collection, and enforcement of municipal taxes apply to this special assessment. The real property referred to above, and upon which the special assessment is claimed is that certain parcel of land situated within the City of Escalon, County of San Joaquin, State of California, more particularly described as follows: ____________________________, Escalon, California.

Dated: ___________________
By: ___________________________

G. Any monies recovered under this section shall be used exclusively for costs and programs associated with monitoring and establishing stormwater discharge pollution control systems, implementing or enforcing the provisions of this chapter and/or creating educational and/or remedial programs relating to stormwater discharge pollution. (Ord. 542, 2014)

13.15.240 Acts potentially resulting in violation of Clean Water Act and/or California Porter-Cologne Act.

Any person who violates any provision of this chapter or any provision of any requirement issued pursuant to this chapter, may also be in violation of the Clean Water Act and/or the Porter-Cologne Act and may be subject to the sanctions of those acts, including civil and criminal penalties. Any enforcement action authorized under this chapter shall also include written notice to the violator of such potential liability. (Ord. 542, 2014)