Chapter 14.04 STORMWATER MANAGEMENT AND REGULATIONS

A. Provide for an effective, functional stormwater drainage system and to minimize the impact of increased runoff, erosion, and sedimentation caused by land development and maintenance activities.

B. Require stormwater facilities to be constructed, operated, maintained, and repaired in conformance with city standards and procedures.

C. Establish minimum standards and procedures for the installation, inspection, and maintenance of stormwater facilities.

D. Implement and further the goals and policies of the Brier comprehensive plan and Brier stormwater management plan.

E. Implement and further the goals and policies of the Washington State Environmental Policy Act.

F. Maintain and protect the city’s stormwater management infrastructure.

G. Promote site planning and construction practices that are consistent with natural topographical, vegetation, and hydrological conditions, utilizing low impact development (LID) to the maximum practical extent.

H. Establish minimum development regulations and construction procedures that will preserve, replace, or enhance, to the maximum extent practicable, the natural qualities of lands, wetlands, and water bodies.

I. Provide guidance to all who inspect and maintain stormwater facilities and systems.

J. Prevent harmful materials from leaking, spilling, draining, or being dumped into any public or private stormwater facility.

K. Enhance, preserve, and protect valuable ground water resources by minimizing the disruption and degradation of water quality, hydrologic function, habitat, and habitat forming processes in water bodies.

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

M. Avoid or abate public nuisances. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.020 Jurisdiction.

The city shall have jurisdiction over all storm and surface water systems within the city’s boundaries. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.030 Authority.

The director has authority to administer and enforce this chapter, to adopt rules and regulations to carry out this chapter, and to approve, conditionally approve, or deny applications for the activities regulated by this chapter. It is unlawful to violate or fail to comply with any provision of this chapter or any rule or regulation adopted by the director.

No person shall modify or add to the city’s MS4 without the prior written approval of the city. The city shall not permit or approve any construction prior to the director’s determination that the requirements of this chapter have been met. Activities regulated by this chapter may be conducted only after the applicant has demonstrated compliance with this chapter, obtained the director’s approval, and obtained other permits or approvals as may be required. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.040 Adoption and incorporation by reference.

The city hereby adopts and incorporates the following into this chapter as if set forth in full, to the extent necessary to interpret and implement this chapter:

A. The city adopts the following technical manuals as the official manuals of Brier as these now exist or are amended in the future:

1. Washington State Department of Ecology Stormwater Management Manual for Western Washington (SWMMWW).

2. Puget Sound Partnership and Washington State University Extension Program’s Low Impact Development, Technical Guidance Manual for Puget Sound (LID Manual).

3. American Public Works Association/Washington State Department of Transportation Standard Specifications for Road, Bridge and Municipal Construction.

B. The technical manuals adopted herein shall be utilized for design and implementation of stormwater management under this chapter. Provided, however, the director may limit or exclude the use of certain products or best management practices (BMPs) approved in these manuals, if in the director’s evaluation, the proposed product or BMP is not suitable for use based upon the conditions of the site, design, or the interests of future residents who will bear the responsibility for maintenance of the BMP. In such case, the director may require the use of other approved products or BMPs from the manual when such products or BMPs will provide better long term stormwater management on the property. The final approved product design shall employ approved BMPs or products provided for in the manual that are better suited to the site and required maintenance and will provide better long term stormwater control or management. The director shall provide a written determination of their decision under this section.

C. Appeals of the director’s decision will follow the process provided in BMC 14.04.210.

D. If the requirements of this chapter and the adopted manuals are inconsistent, the more stringent requirements shall apply.

E. State regulations and policies, as existing or as amended:

1. Chapter 43.20 RCW, Drinking Water.

2. Chapter 70.95 RCW, Dangerous and Solid Waste.

3. Chapter 70.105 RCW, Dangerous Waste, MTCA, Sediment Standards.

4. Chapter 90.48 RCW, Water Pollution Control.

5. Chapter 90.54 RCW, Ground Water.

6. Chapter 173-200 WAC, Water Quality Standards for Ground Waters of the State of Washington.

7. Chapter 173-201A WAC, Water Quality Standards for Surface Waters of the State of Washington.

8. Chapter 173-216 WAC, State Waste Discharge Permit Program.

9. Chapter 173-220 WAC, National Pollutant Discharge Elimination System Permit Program.

10. Chapter 173-204 WAC, Sediment Management Standards.

11. Chapter 173-303 WAC, Dangerous Waste Regulations.

12. Chapter 173-304 WAC, Minimum Functional Standards for Solid Waste Handling.

13. Chapter 173-340 WAC, the Model Toxics Control Act Cleanup Regulation.

14. Chapter 246-290 WAC, Public Water Supplies.

All of these documents are on file within the office of the city clerk and can be viewed upon request. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.050 Definitions.

The following definitions shall apply to this chapter except where specified otherwise in this chapter:

A. “A” definitions.

“AKART” is an acronym that means all known, available, and reasonable methods of prevention, control, and treatment.

“APWA Manual” means the American Public Works Association/Washington State Department of Transportation Standard Specifications for Road, Bridge and Municipal Construction, as existing or amended.

“Applicant” means the property owner or an individual authorized in writing by a property owner to represent and act for the property owner regarding matters relating to this chapter.

B. “B” definitions.

“Best management practices (BMPs)” means practices based on research, field-testing, and expert review determined to be the most effective and practicable on-location means, including economic and technological considerations, for improving water quality, conserving water supplies, and protecting natural resources. BMPs include treatment practices, operating procedures, and practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from raw materials storage.

“BMC” means the Brier Municipal Code.

C. “C” definitions.

“Certified erosion and sediment control lead (CESCL)” means an individual who is currently certified through an approved erosion and sediment control training program and who meets the minimum training standards established by the Washington State Department of Ecology; is knowledgeable in the principles and practices of erosion and sediment control.

“City” means the city of Brier, Snohomish County, Washington.

“Clean Water Act” means the United States Water Pollution Control Act (33 USC Section 1251 et seq.), and any subsequent amendments thereto.

“Clearing” means the selective removal of vegetation from a property, whether by cutting or other means, as regulated under Chapter 19.24 BMC.

“Critical area” means those areas designated as critical and regulated under BMC Title 18, including but not limited to wetlands, streams, geologically hazardous areas, and critical aquifer recharge areas and their buffers.

D. “D” definitions.

“Development” means construction, reconstruction, conversion, structural alteration, relocation, or enlargement of a structure; division of a parcel of land into two or more parcels; mining, excavation, landfill, paving, or land disturbance; or use, conversion, or extension of the use of land.

“Development area” means that portion of a property, properties, or right-of-way proposed for alteration, which includes but is not limited to clearing, grading, filling, changing of soil cover (both vegetative and nonvegetative) or existing soil topography, or installing new or replaced impervious surfaces.

“Director” means the city’s mayor or designees.

E. “E” definitions. Reserved.

F. “F” definitions. Reserved.

G. “G” definitions.

“Geologist” means an individual who, by reason of his or her knowledge of the environment, geology, mathematics, and supporting physical and life sciences, which was acquired by education and practical experience, has met the qualifications established under Chapter 18.220 RCW and is currently licensed as a geologist in the state of Washington.

“Geotechnical engineer” means a professional engineer currently licensed in the state of Washington, qualified by reason of experience and education in the practice of geotechnical engineering, and designated by the property owner as the geotechnical engineer of record for the project.

“Ground water” means water in a saturated zone or stratum beneath the surface of the land or below a surface water body.

H. “H” definitions.

“Hazardous materials” means any material, including any substance, waste, or combination thereof, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may cause, or significantly contribute to, a substantial present or potential hazard to human health, safety, property, or the environment when improperly treated, stored, transported, disposed of, or otherwise managed.

“Hyperchlorinated” means water that contains more than ten mg/liter chlorine.

I. “I” definitions.

“Illicit connection” means any manmade conveyance that is connected to the MS4 without city approval, excluding roof drains and other similar type connections. Examples of an illicit connection include sanitary sewer connections, floor drains, channels, pipelines, conduits, inlets, or outlets that are connected directly to the MS4 system.

“Illicit discharge” means any direct or indirect nonstormwater discharge to the MS4, except as expressly allowed by this chapter.

“Impervious area” means the hard surface area that prevents or impedes the entry of water into the soil, thus causing water to run off the surface in greater quantities or at an increased rate of flow.

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

“Infiltration rate” means the rate of water entry into the soil expressed as a depth of water per unit of time (inches per hour).

J. “J” definitions. Reserved.

K. “K” definitions. Reserved.

L. “L” definitions.

“Land disturbing activity” means any activity that results in movement of earth, or a change in the existing soil cover (both vegetative and nonvegetative) and/or the existing soil topography. Land disturbing activities include, but are not limited to, clearing, grading, filling, and excavation. Compaction that is associated with stabilization of structures and road construction shall also be considered a land disturbing activity. Vegetation maintenance practices are not considered land disturbing activity.

“LID (low impact development)” means a stormwater 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 stormwater management practices that are integrated into a project design.

“LID Manual” means the current edition of Puget Sound Partnership and Washington State University Extension Program’s Low Impact Development, Technical Guidance Manual for Puget Sound.

M. “M” definitions.

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

“Mechanical equipment” means all motorized equipment used for earth moving, trenching, excavation, gardening, landscaping, and general property maintenance exceeding twelve horsepower in size.

“Municipal separate storm sewer system (MS4)” means a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, manmade channels, or storm drains), owned or operated by the city, that is:

1. Designed or used for collecting or conveying stormwater; and

2. Not part of a publicly owned treatment works (POTW). “POTW” means any device or system used in treatment of municipal sewage or industrial wastes of a liquid nature which is publicly owned.

N. “N” definitions.

“National Pollutant Discharge Elimination System (NPDES) stormwater discharge permit” means a permit issued by the Environmental Protection Agency (EPA) or by the Washington Department of Ecology under authority delegated pursuant to 33 USC Section 1342(b) that authorizes the discharge of pollutants to waters of the United States, whether the permit is applicable on an individual, group, or general area-wide basis.

“Native growth area” means a restrictive area where all native, predevelopment plants shall not be disturbed or removed except for removal pursuant to this chapter and BMC Title 18. The purpose of this area is to protect steep slopes, slopes with erosion potential, landslide and seismic hazards, creeks, wetlands, riparian corridors, wildlife, and other environmentally sensitive areas. Any native growth area shall be defined during the development review process and shown as a “native growth protection area” in a recorded subdivision or short subdivision, or approved site plan.

“Native vegetation” means a collection of native plants. See “plant, native” and “vegetation.”

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

“Nonstormwater discharge” means any discharge to the storm drain system that is not composed primarily of stormwater.

O. “O” definitions.

“Outfall” means a point source as defined by 40 CFR 122.2 at the point where stormwater leaves the MS4 and discharges to waters of the state. Outfall does not include pipes, tunnels, or other conveyances which connect segments of the same stream or other surface waters and are primarily used to convey surface waters (i.e., culverts).

P. “P” definitions.

“Permeable” means soil or other material that allows the infiltration or passage of water or other liquids.

“Permit” means a stormwater discharge permit or stormwater permit, unless otherwise noted. The permit is the written approval of the city to proceed with modifications to a stormwater system within the city by constructing a new stormwater facility or altering an existing stormwater facility. The permit includes any associated approved plans, technical documents and conditions of approval, as well as the permit itself.

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

“Plant, native” means those species of plants occurring within the city prior to European contact, according to best scientific and historical documentation. It includes those species understood as indigenous, occurring in natural associations in habitats that existed prior to significant human impacts and alterations of the landscape. Native plants are those recognized by the Washington Native Plant Society’s Native Plants for Western Washington Gardens and Restoration Projects, current edition, or the King County Native Plant Guide, current edition. Native plants include, but are not limited to, ground covers, shrubs, and trees.

“Pollutant” means anything which causes or contributes to pollution. Pollutants may include, but are not limited to: paints, varnishes, and solvents; oil and other automotive fluids; nonhazardous liquid and solid wastes and yard wastes; refuse, rubbish, garbage, litter, or other discarded or abandoned objects and accumulations, which may cause or contribute to pollution; floatables (objects or substances which float); pesticides, herbicides, and fertilizers; hazardous materials, substances, and wastes; sewage, fecal coliform, and pathogens; dissolved and particulate metals; animal wastes; or wastes and residues that result from constructing a building or structure.

“Pollution-generating impervious surface (PGIS)” means those impervious surfaces considered to be a significant source of pollutants in stormwater runoff. Such surfaces include those which are subject to: vehicular use; industrial activities; or storage of erodible or leachable materials, wastes, or chemicals, and which receive direct rainfall or the run-on or blow-in of rainfall. “Erodible or leachable materials, wastes, or chemicals” are those substances which, when exposed to rainfall, measurably alter the physical or chemical characteristics of the rainfall runoff. Examples include erodible soils that are stockpiled, uncovered process wastes, manure, fertilizers, oily substances, ashes, kiln dust, and garbage dumpster leakage. Metal roofs are also PGISs unless they are coated with an inert, nonleachable material (e.g., baked-on enamel coating).

1. A surface, whether paved or not, shall be considered subject to vehicular use if it is regularly used by motor vehicles. The following are considered regularly used surfaces: roads, unvegetated road shoulders, bike lanes within the traveled lane of a roadway, driveways, parking lots, unfenced fire lanes, vehicular equipment storage yards, and airport runways.

2. The following are not considered regularly used surfaces: paved bicycle pathways separated from and not subject to drainage from roads for motor vehicles, fenced fire lanes, and infrequently used maintenance access roads.

“Pollution-generating pervious surfaces (PGPS)” means any pervious surface subject to use of pesticides and fertilizers or loss of soil. Typical PGPSs include lawns, landscaped areas, golf courses, parks, cemeteries, artificial turf, and sports fields. PGPS also includes pervious surfaces subject to vehicular use or storage of erodible or leachable materials, wastes or chemicals that receive direct rainfall or run-on or blow-in of rainfall.

“Predeveloped condition” means the native vegetation and soils that existed at a site prior to the influence of Euro-American settlement. The predeveloped condition shall be assumed to be a forested land cover unless reasonable, historic information is provided that indicates the site was prairie prior to settlement.

“Professional engineer” means an individual who, by reason of his or her special knowledge of the mathematical and physical sciences and the principles and methods of engineering analysis and design, acquired by professional education and practical experience, is qualified to practice engineering as defined in RCW 18.43.020, as attested by his or her legal registration as a professional engineer in Washington State.

Project Site. See “development area.”

Q. “Q” definitions. Reserved.

R. “R” definitions.

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

“Redevelopment” means the creation or addition of impervious surfaces; the expansion of a building footprint or addition of a structure; and land disturbing activities on a site that is already developed.

“Replaced impervious surface” means, for structures, the removal and replacement of any exterior impervious surfaces or foundation. For other impervious surfaces, the removal down to bare soil or base course and replacement.

S. “S” definitions.

“SEPA” means the Washington State Environmental Policy Act, as adopted in BMC Title 19.

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

“SMP” means the city of Brier’s currently adopted stormwater management plan.

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

“Stop work order” means a written notice, signed by the director, that is posted on the site of a construction activity, which order states that a violation of a city ordinance or this code has occurred and that all construction-related activity, except for erosion and sedimentation control activities authorized by the director, must cease until further notice.

“Stormwater” means runoff during and following precipitation and snowmelt events, including surface runoff and drainage.

“Stormwater facility” means an individual manmade system which independently collects, stores, purifies, discharges, and conveys stormwater. A stormwater facility is a component of the stormwater system.

“Stormwater facility, regional” means a manmade system which collects, stores, purifies, discharges, and conveys stormwater for more than one subdivision. A regional stormwater facility is a component of the stormwater system and is a type of stormwater facility.

“Stormwater system” means a natural and manmade system which functions together or independently to collect, store, purify, discharge, and convey stormwater. Included are all stormwater facilities as well as natural systems such as streams and creeks which convey, store, infiltrate, or divert stormwater.

“SWMMWW” means the current version of the Washington State Department of Ecology’s Stormwater Management Manual for Western Washington.

“SWPPP” means a stormwater pollution prevention plan prepared by a CESCL or professional engineer. The SWPPP is a report containing a narrative and drawings used to explain and justify the pollution prevention decisions made for a particular project. The narrative contains concise information concerning existing site conditions, construction schedules, and other pertinent items that are not contained on the drawings. The drawings and notes describe where and when the various BMPs should be installed, the performance the BMPs are expected to achieve, and actions to be taken if the performance goals are not achieved.

T. “T” definitions.

“Threshold discharge area” means an on-site area draining to a single natural discharge location or multiple natural discharge locations that combine within one-quarter mile downstream (as determined by the shortest flow path).

U. “U” definitions. Reserved.

V. “V” definitions.

“Vegetation” means a collection of plants, composed of ground cover, shrubs, and trees – also see the definition for “plant, native.”

W. “W” definitions.

“Wet season” means the period between October 1st and April 30th.

X. “X” definitions. Reserved.

Y. “Y” definitions. Reserved.

Z. “Z” definitions. Reserved. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.055 Applicability.

The provisions of this chapter shall be a minimum standard and shall apply to all stormwater systems and all direct and indirect connections to the MS4, including direct outfalls to the city’s streams, wetlands, and lakes. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.060 Permit required.

No individual, firm, or corporation shall install a stormwater system without first obtaining a permit issued by the city. All applicants shall file a written application pursuant to this chapter. A permit is required for the following actions:

A. Actions that require the approval or issuance of a land use or development permit and that are not exempt from this chapter.

B. Actions which propose or require the installation or expansion of a stormwater facility or regional stormwater facility.

C. Projects involving two thousand square feet or more of new impervious surface, replaced impervious surface, or new plus replaced impervious surface.

D. Projects involving seven thousand square feet or more of land disturbing activity.

E. Projects involving the collection and concentration of surface and stormwater runoff from a drainage area of two thousand square feet or more.

F. Projects which contain, are adjacent to or directly discharge into a stream, lake, pond, wetland, or other water body, critical aquifer recharge area or other water quality sensitive area, or a receiving water with a documented water quality, drainage or flooding problem as determined by the director, based on a written map, policy, water quality monitoring data, or plan in existence or implemented by the director prior to submission of an application, or based on information provided or developed during review of a particular application.

G. Construction or modification of a utility pipe or ditch that is twelve inches or more in size or depth, or that connects to a utility pipe or ditch that is twelve inches or more in size or depth.

H. Repair, alteration, and/or replacement of a structure’s associated stormwater facility that results in additional stormwater discharge onto adjacent properties. The system shall meet the standards of the SWMMWW. A “structure” means but is not limited to a house, driveway, accessory structure, or retaining wall.

I. Projects involving a change in use that potentially could release a new pollutant to stormwater systems within the city. A “new pollutant” means a pollutant that was not discharged or was discharged in lower quantities at that location within a twelve-month period prior to the change in use.

J. Projects that, once constructed, will exceed the designed capacity of an existing stormwater facility. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.070 Standing water prohibited.

No unprotected and uncovered ditch, pit, hole, or excavation wherein standing water presents a hazard to health or safety, as determined by the director, shall be created, constructed, installed, or permitted to exist on any land within the city. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.080 Nonstormwater, illegal discharges, and dumping prohibited.

A. Except as provided in subsections C and D of this section, no individual shall throw, drain, or otherwise discharge, cause or allow others under its control to throw, drain, or otherwise discharge into the stormwater system any materials and/or liquids other than stormwater.

B. It is unlawful to discharge construction stormwater runoff into the stormwater system or onto private property except as approved by a SWPPP.

C. The following discharges into the stormwater system are prohibited, unless the stated conditions in BMC 14.04.120 are met:

1. Discharges from potable water sources, including waterline flushing, hyperchlorinated waterline flushing, fire hydrant system flushing, and pipeline hydrostatic test water.

2. Discharges from lawn watering and other irrigation runoff.

3. Swimming pool, spa, and hot tub discharges, and wastewater and filter backwash.

4. Street, sidewalk, and private driveway wash water, water used to control dust, and routine external building wash-down.

5. Other nonstormwater discharges which shall be in conformance with a city-approved SWPPP provided by the applicant, and shall be based on the standards adopted in this chapter for such discharges.

6. Any discharges from a construction site which shall be in conformance with a city-approved SWPPP provided by the applicant, and shall be based on the standards adopted in this chapter for such discharges.

a. A SWPPP shall be designed to achieve a maximum of five NTUs above background (background of fifty NTUs or less), have not more than ten percent increase in turbidity where background is greater than fifty NTUs, have pH of 6.5 to 8.5 in freshwater, and have no visible oil sheen.

b. The property owner shall provide the city with all testing results and updated SWPPPs for review as changes occur.

7. Stormwater discharges shall be in conformance with a current NPDES permit, approved by the Washington State Department of Ecology.

D. The following categories of nonstormwater discharges are specifically allowed:

1. Diverted stream flows.

2. Rising ground waters.

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

4. Uncontaminated pumped ground water.

5. Foundation drains.

6. Air conditioning condensation.

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

8. Springs.

9. Uncontaminated water from crawl space pumps.

10. Flows from riparian habitats and wetlands.

11. Footing drains.

12. Nonstormwater discharges covered by another NPDES permit, subject to compliance with BMC 14.04.120(E).

13. Discharges from emergency firefighting activities in accordance with the city’s NPDES permit, Section S2, Authorized Discharges. The city’s NPDES permit is available to view in the city’s department of public works. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.090 Illicit connections and uses.

A. The MS4, natural and manmade, shall only be used to convey stormwater runoff, and any discharge authorized by Chapter 173-216 WAC (State Waste Discharge Permit Program) and Chapter 173-220 WAC (National Pollutant Discharge Elimination System Program).

B. Except as provided in subsection A of this section, no individual shall use the stormwater system, directly or indirectly, to dispose of any solid or liquid matter other than stormwater. No individual shall make or allow any connection to the stormwater system which could result in the discharge of polluting matter. Connections to the stormwater system from the interiors of structures are prohibited. Connections to the stormwater system for any purpose other than to convey stormwater or ground water are prohibited and shall be eliminated. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.100 Stormwater discharge into sanitary sewer system prohibited.

A. No individual shall discharge or cause to be discharged any stormwater, surface water, ground water, roof runoff, subsurface drainage, uncontaminated cooling water, or unpolluted industrial process waters into any sanitary sewer, unless otherwise approved by the director and the receiving POTW agency, and in no case shall the sewer connection be designed as a permanent discharge solution.

B. No individual shall make connection of roof downspouts, exterior foundation drains, area drains, or other sources of stormwater surface runoff or ground water to a building sewer or building drain which in turn is connected directly or indirectly to a public sanitary sewer, unless such connection is otherwise approved in writing by the director based on lack of feasible alternatives or other appropriate factors.

C. All discharges into the city sewer system must comply with BMC 13.04.040. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.110 Unpolluted stormwater discharge shall have approved outlet.

A. Stormwater shall be discharged to the MS4, or to a natural outlet approved by the director.

B. Storm drainage from hard-surfaced or graded areas, such as parking lots, service station yards, and storage yards, shall enter MS4 or other outlet approved by the director and as required by this chapter and as such facilities are available. Such storm drainage shall not be connected to or allowed to enter a sanitary sewer, unless otherwise approved in writing by the director based on lack of feasible alternatives or other appropriate factors. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.120 Conditional discharges.

The following types of discharges shall not be considered prohibited discharges for the purposes 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 significant contamination of surface water, stormwater, or ground water:

A. Discharges from potable water sources, including water line flushing, hyperchlorinated water line flushing, fire hydrant system flushing, and pipeline hydrostatic test water that has been dechlorinated to a concentration of 0.1 ppm or less, pH-adjusted, if necessary, and volumetrically and velocity controlled to prevent resuspension of sediments to surface water, stormwater, ground water, or Puget Sound.

B. Discharges from lawn watering and other irrigation runoff which shall be minimized through, at a minimum, public education activities and/or water conservation efforts.

C. Discharges from swimming pools, spas, and hot tubs that have been dechlorinated to a concentration of 0.1 ppm or less, pH-adjusted and reoxygenized if necessary, and volumetrically and velocity controlled to prevent resuspension of sediments to the MS4. Discharges shall be thermally controlled to prevent an increase in temperature of the receiving water. Swimming pool, spa, and hot tub wastewater and filter backwash shall not be discharged to the MS4.

D. Street and sidewalk wash water, water used to control dust, and routine external wash down that does not use detergents which shall be minimized through, at a minimum, public education activities and/or water conservation efforts.

E. Nonstormwater discharges covered by a separate NPDES or state waste discharge 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 MS4.

F. Other stormwater discharges shall be in compliance with the requirements of a SWPPP that is reviewed and approved by the director and that addresses control of such discharges by applying AKART to prevent contaminants from entering surface water, stormwater, ground water, or Puget Sound. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.130 Exemptions.

The following activities are exempt from the permit requirements of this chapter:

A. Projects involving less than two thousand square feet of new impervious surface, replaced impervious surface or new plus replaced impervious surface, seven thousand square feet or less of land disturbing activity, or two thousand square feet or less of drainage area that collects and concentrates stormwater runoff that are categorically exempt from SEPA.

B. Normal maintenance activities that comply with the maintenance provisions of this chapter.

C. Improvements to commercial, institutional, and public structures that do not increase floor area.

D. Roadway maintenance practices and activities, that is, pothole and square-cut patching, overlay of existing surface without expanding the area of coverage, crack sealing, and roadside vegetation maintenance.

E. Underground utility maintenance activities that replace the ground surface with in-kind material or materials with similar runoff characteristics.

F. Land disturbing activity, sandbagging, diking, ditching, or similar work on stormwater facilities or systems conducted by the city, emergency responders, public and/or private utilities in situations involving danger to life or property, substantial fire hazards, interruption of utility services, toxic releases, or flooding.

G. Land disturbing activity, sandbagging, diking, ditching, or similar work on stormwater facilities conducted by the property owner in emergency situations involving immediate danger to life or property, substantial fire hazards, or interruption of utility services. If the emergency work exceeds the thresholds elsewhere in this section, the property owner shall obtain a permit to retroactively approve the activity and any subsequent repairs.

H. Excavation less than four feet in vertical depth, or fill less than three feet in vertical depth, which cumulatively over time does not involve more than one hundred cubic yards on a single site. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.140 Adjustments and variances.

A. The director may approve adjustments to the minimum requirements of the SWMMWW or LID Manuals for any regulated activity requiring review under this chapter. Proposed adjustments should be approved prior to final permit approval, but the director may approve an adjustment up to approving final construction or accepting drainage systems for maintenance.

1. The applicant shall submit a completed adjustment request application form, which shall include identification of the specific requirement for which the adjustment is sought, sufficient engineering information to evaluate the request, and a deposit for staff time as set forth in the current fee schedule.

2. Adjustments may be granted if the adjustment will:

a. Produce a result that meets or exceeds that which would be achieved by the satisfaction of the SWMMWW and LID requirements;

b. Be consistent with the Brier comprehensive plan and the Brier stormwater management plan;

c. Meet the objectives of safety, function, appearance, environmental protection, and maintainability based on sound engineering practices and principles; and

d. Be in the public interest.

3. Adjustments utilizing an experimental BMP may be approved if the following additional criteria are met:

a. The experimental design is likely to meet the identified target pollutant removal goal or flow control performance based on performance data and theoretical considerations;

b. Construction of the experimental BMP can be successfully carried out;

c. Maintenance considerations are included in the design, and costs are not excessive or are borne and reliably performed by the applicant or property owner; and

d. The applicant or property owner accepts responsibility for the cost of monitoring to determine facility performance. Any required monitoring assurance shall be provided prior to final acceptance of the experimental BMP. The applicant’s engineer shall determine the cost of monitoring. The assurance shall be one hundred fifty percent of the estimated cost of monitoring. The assurance period shall be five years from the date of successful completion of the final inspection on the experimental BMP. The applicant or property owner shall submit annually an inspection report. Prior to the end of the five-year period, the city shall re-inspect the experimental BMP prior to releasing the assurance. If the experimental BMP is not performing properly or as represented, the director may extend the assurance period for an appropriate period of time.

For experimental BMP proposals, the director may condition approval of an experimental BMP upon granting an easement to the city that reserves sufficient land area to construct a conventional facility and providing a financial assurance to cover the cost of constructing a conventional facility in the event the experimental facility fails. The easement and financial assurance shall be reviewed and complete prior to approving final construction. The director may approve release of the easement and financial assurance upon proof of satisfactory operation of the experimental facility.

4. Upon written determination by the city engineer, the director shall approve, approve with conditions, or deny an adjustment proposal.

5. If the applicant reasonably demonstrates to the director that compliance with this chapter will deny the applicant reasonable use of his or her property, the applicant shall apply for a variance using the process set forth in BMC Title 17, and shall satisfy the criteria in this section.

6. If the director determines that a proposed adjustment might conflict with the requirements of another chapter or title of this code, the director shall forward the proposed adjustment to the city department or employee charged with administration or oversight of that chapter or title.

7. The director’s decision on the proposed adjustment shall be the final decision of the city on the request.

8. Any adjustment granted under this section shall expire upon expiration of the permit to which it applies.

B. Variances. The city council may grant a variance to the minimum requirements if such application imposes a severe and unexpected economic hardship. To determine whether the application imposes a severe and unexpected economic hardship on the project applicant, the applicant must provide the director with a narrative and any necessary supporting documentation, including written findings of fact, for the following information:

1. The current (pre-project) use of the site; and

2. How the application of the minimum requirement(s) restricts the proposed use of the site compared to restrictions that existed prior to the adoption of the minimum requirements; and

3. The possible remaining uses of the site if the exception were not granted; and

4. The uses of the site that would have been allowed prior to the adoption of the minimum requirements; and

5. A comparison of the estimated amount and percentage of value loss as a result of the minimum requirements versus the estimated amount and percentage of value loss as a result of requirements that existed prior to adoption of the minimum requirements; and

6. The feasibility for the owner to alter the project to apply the minimum requirements; and

7. How the exception is the least possible exception that could be granted to comply with the intent of the minimum requirements; and

8. How the exception will not increase risk to the public health and welfare, nor be injurious to other properties in the vicinity and/or downstream, or to the quality of waters of the state.

Requests for variance shall be filed in writing with the city following the procedures of BMC 17.36.050(A), including the payment of any fees established by the city, and shall adequately detail the basis of granting a variance. Variances require public notice (for the variance application, public notice of the decision on the application, and written findings of fact that document the determination to grant the variance).

Depending on the scope of the use and its impacts, the request may be subject to compliance with the critical areas (BMC Title 18), land disturbing activities code (Chapter 19.24 BMC), landscaping standards (Chapter 17.50 BMC), and tree protection (Chapter 17.52 BMC).

The decision of the city council concerning a request for a variance from the minimum requirements shall be made in writing. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.150 Application – Stormwater discharge permit.

All activities which discharge into the stormwater system, do not construct or expand a stormwater facility, are not in or adjacent to or discharging to a critical area, and do not require a land use or construction permit shall be required to obtain a stormwater discharge permit. Applicants shall submit a complete application form and attachments as prescribed by the director and with all required fees. The director shall approve, approve with conditions, or deny the permit application. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.160 Application – Stormwater permit – Requirements.

A. All activities that are not exempt from this chapter and which do not meet the criteria for a stormwater discharge permit shall apply for a stormwater permit.

B. Each application shall be reviewed by the director and the city engineer and shall comply with the standards, specifications, and requirements of the BMC. Applications shall be submitted with a complete application form and attachments as prescribed by the director and with all required fees. Upon written approval and recommendation of the city engineer, the director shall approve, approve with conditions, or deny the permit application. Appropriate safeguards may be prescribed to assure compliance with the BMC and the stormwater permit as approved, including but not limited to reasonable performance or maintenance assurance devices.

C. Site development activities shall require the submittal of documents prepared by a Washington State-licensed professional engineer under the following conditions:

1. Any land use or building or development on real property which disturbs one acre or greater;

2. Any land use or building or development on real property which requires a flow control, treatment, or LID facility;

3. Any improvements within the boundaries of the city right-of-way, including but not limited to extension of the MS4, for which the city will ultimately assume responsibility for maintenance; or

4. Any site development activity for which the director determines that the public’s best interest would be served by having the documents prepared by such engineer.

D. Upon determination that the application is complete for review, the director and/or city engineer shall inspect the project site to determine whether a high potential for sediment transport exists using the rating system in Appendix 7, Determining Construction Site Sediment Damage Potential, of the current NPDES permit.

E. All proposals shall comply with the stormwater management plan.

F. All proposals shall comply with the Brier comprehensive plan. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.170 Application – Stormwater permit – Municipal separate storm sewer system (MS4) extension – When required.

The director may require a storm drain main extension whenever more than one property owner or more than one property is provided service, and either the property to be served does not abut a storm drain main or the existing storm drain main is not adequate to provide the necessary service.

A. Main extensions shall be extended to the far side (upstream) property line of the property being served.

B. Storm drain main extensions shall be constructed by the property owner or by the city through a local improvement district.

C. All main extensions shall be constructed by a licensed and bonded contractor of the state of Washington.

D. All main extensions shall be in the city right-of-way or other public right-of-way. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.180 Application – Stormwater permit – Minimum design requirements.

A. All site development activities shall meet the minimum requirements, thresholds, and definitions of the SWMMWW. The city may allow alternative or regional approaches to stormwater treatment, flow control, or other minimum requirements per the basin/watershed provisions outlined in the SWMMWW.

B. All site developments shall meet both temporary and permanent site planning, BMP stormwater treatment, flow control, source control, and LID facility requirements of the SWMMWW and the materials standards in the APWA Manual.

C. BMPs, as specified in the SWMMWW and LID Manuals, shall be used to control pollution from stormwater and to comply with the standards in this chapter. In applying the Manuals, the director shall first require the implementation of source control BMPs unless the Manual specifically requires treatment BMPs. If source control BMPs (or treatment BMPs if required by the SWMMWW and LID Manuals) do not prevent contaminants from entering surface and stormwater or ground water, the director may require implementation of additional source control BMPs and/or treatment BMPs according to AKART.

1. BMPs shall be applied as required herein, so that when all appropriate combinations of individual BMPs are utilized, pollution of surface or ground water is prevented. If all BMPs required herein or by the director are applied, and pollution still occurs, the discharger shall modify existing practices or apply further water pollution control measures, as specified by the applicant’s engineer. In the absence of implementation of applicable BMPs, the director shall be authorized to conclude that individual activities are causing pollution in violation of this chapter, and shall be authorized to enforce this chapter accordingly.

2. In those instances where appropriate BMPs are not specified in the SWMMWW and LID Manuals, experimental BMPs should be considered. Experimental BMPs are encouraged as a means of solving problems in a manner not addressed by the SWMMWW and LID Manuals in an effort to improve stormwater quality technology. Experimental BMPs must be approved using the adjustment application process by the director prior to construction.

D. Low impact development (LID) techniques shall be employed to the maximum extent feasible. LID facilities are required to improve water quality and aesthetics, as well as to reduce the size and cost of flow control and treatment facilities.

1. LID facilities proposed in any site development shall be designed in accordance with the LID Manual and shall take into account site and soil conditions, access and long-term maintenance.

2. The engineer shall provide maintenance procedures and scheduling to the city and the property owner.

3. Soil infiltration tests shall occur at fifteen feet or less from the exact location of a proposed infiltration facility.

4. Stockpiling is prohibited above or immediately adjacent to any proposed infiltration facility. A protective barrier shall be installed five feet beyond the outer perimeter of any proposed infiltration facility. Protective barriers shall be a minimum of four feet high, constructed of chain link, or polyethylene laminar safety fencing or similar material, subject to approval by the director. Signs clearly indicating the purpose of the protected area shall be posted visibly on all sides of the fence.

5. Prior to final approval of the stormwater facility, all newly installed LID features shall be equipped with an educational sign providing information about the importance of the LID feature on the property and how to properly maintain it.

E. For projects that are not flow control exempt, but implement LID BMPs as described in the “Table I-3.2: The List Approach for MR5 Compliance” found in the Department of Ecology’s SWMMWW, said BMPs cannot be modeled in accordance with the “Runoff Model Representation” of the applicable BMP section if the facility will be privately maintained. All targeted surfaces shall be modeled as the proposed land cover. Privately maintained full dispersion and full infiltration BMPs are not subject to this restriction.

F. All natural contours shall be maintained to the extent that natural drainage flow from or onto adjacent public or private property shall not be disrupted, blocked, increased, redirected, or otherwise made detrimental to the use or maintenance of said adjacent property. This restriction shall not prevent the maintenance of a stormwater facility under or across private property along a natural drainage course for the purpose of generally improving a particular property, in conformance with this chapter or Chapter 19.24 BMC.

G. All plats developed with curbs and gutters shall also provide MS4 extensions for the control and disposal of surface runoff. Such extensions shall be so located and designed to meet the requirements specified by the city engineer, so as to conform and be compatible with adjacent natural drainage ways and the SMP. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.190 Application – Stormwater permit – Additional submittal requirements.

A. Drainage easements shall be provided in a proposed development for all stormwater facilities that are not located in public rights-of-way or tracts. The drainage easements shall be granted to the parties responsible for providing ongoing maintenance of the systems, and the city for inspections and monitoring.

1. All drainage easements shall be at least twenty feet wide, or as the director and/or city engineer deems necessary.

2. Drainage easements through structures are not permitted.

3. Stormwater facilities that are to be maintained by the city, together with maintenance access roads to the facilities, shall be located in a public right-of-way, separate tract dedicated to the city, or drainage easement located in designated open space. The exception is for stormwater conveyance pipes that may be located within easements on private property; provided, that all catch basins can be accessed without entering private property.

4. All runoff from impervious surfaces, roof drains, and yard drains shall be directed so as not to adversely affect adjacent properties. If it does, the owner shall fix it. Wording to this effect shall appear on the face of all final plats, and shall be contained in any covenants required for a development.

B. Prior to the beneficial use of a stormwater facility constructed under this chapter, the owner shall record a maintenance covenant which guarantees to the city that the stormwater facility shall be properly operated, maintained, and inspected. The restrictions set forth in such covenant shall be included in any instrument of conveyance of the subject property and shall be recorded with the Snohomish County auditor.

1. Maintenance covenants shall remain in force for the life of the development, or until the responsibility for the operation and maintenance of the subject stormwater facility is accepted by the city.

2. Maintenance covenants shall include the maintenance standards specified by the SWMMWW, a list of maintenance activities and proposed inspection intervals for each element of the private stormwater facility, and a guarantee that any maintenance necessary for any element of the stormwater facility will be performed to the standards specified by the SWMMWW and within the following schedule:

a. Within six months for typical maintenance;

b. Within nine months for maintenance requiring revegetation;

c. Within one year for wet pool facilities and retention/detention ponds; or

d. Within two years for maintenance that requires capital construction of less than twenty-five thousand dollars.

3. In the event that the owner is unable to meet the schedule above, the owner shall either provide the city with a written plan for compliance or specific documentation that there were circumstances beyond the owner’s control.

C. All land disturbing activities requiring approval under Chapter 19.24 BMC shall include a plan for the control of erosion and sedimentation for the period beginning with the commencement of site development activity and continuing without interruption until achievement of permanent site stabilization. The developer shall submit to the city all updated copies of the plan.

1. No land disturbing activity or other construction activity shall take place on a project site until an erosion and sedimentation control plan has been approved by the director, and the approved BMPs are implemented.

2. No land disturbing activity shall take place prior to submittal of a performance assurance in conformance with Chapter 19.24 BMC.

D. All site development activities where land disturbing activity (as regulated by Chapter 19.24 BMC) or the construction of retention facilities, detention facilities, infiltration facilities, or other stormwater facilities are proposed on slopes greater than fifteen percent, within two hundred feet of slopes steeper than thirty percent near a landslide area, near an environmentally sensitive area or critical area (as regulated by BMC Title 18), or where the director deems that the proposed construction poses a potential hazard due to its proximity to a slope, shall include a geotechnical analysis, prepared by a geologist or geotechnical engineer. The geotechnical analysis shall address the effects of ground water interception and infiltration, seepage, potential slip planes, and changes in soil bearing strength. The final design for the facilities shall be reviewed by the geotechnical engineer.

E. All applications for site development activities shall include, along with other required submittal documents, an off-site drainage analysis. The off-site analysis shall be prepared by a professional engineer and based on a field investigation of the development’s off-site contributing and receiving drainage areas. The director and/or city engineer may require that the downstream analysis study extend up to one mile from the project site.

F. All site development activities where infiltration facilities are proposed shall include a soils investigation report prepared by a geologist or geotechnical engineer.

G. Driveway culverts shall be installed in all driveways crossing drainage ditches or swales on, under, or alongside public rights-of-way. Such culverts shall use materials specified by the APWA Manual or materials approved by the director and have a minimum inside diameter of twelve inches, and be of sufficient length to provide a minimum fifteen-foot-wide entrance from any public road; provided such culverts may be omitted in certain areas lacking a roadside ditch or drainage swale upon written authorization by the city engineer. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.200 Assurances.

A. The applicant shall submit a separate bond, letter of credit, or other means of assurance acceptable to the director for each required assurance.

B. A performance assurance may be required to ensure the installation of the stormwater facility as approved.

1. The assurance shall be provided prior to issuance of a permit.

2. The amount of the assurance shall be equal to three hundred percent multiplied by the applicant engineer’s estimate for all work encompassed by the permit.

3. The assurance period shall be until the date of successful completion of the final inspection on the stormwater facility. The assurance shall not be fully released until the city has inspected and approved the completed work.

C. A maintenance assurance may be required to ensure the long-term performance of the stormwater facility.

1. The assurance shall be provided prior to approval of the final plat for a short or full subdivision or prior to issuance of a certificate of occupancy when the facility is solely associated with a building permit.

2. The amount of the assurance shall be equal to one hundred fifty percent multiplied by the applicant engineer’s estimate for all work encompassed by the permit.

3. The assurance period shall be two years from the date of the final certificate of occupancy served by the stormwater facility.

4. Upon reaching two years, the city shall re-inspect the stormwater facility prior to authorizing release of the assurance.

D. Assurances provided in accordance with this section may be redeemed in whole and in part by the city upon determination by the director that the applicant has failed to comply with approved plans and/or conditions. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.205 Source control for existing land uses and activities.

Source control BMPs will be applied to control pollutant-generating sources associated with existing land uses and activities as specified in the city’s current stormwater permit from Ecology. Applicable operational source control BMPs shall be required for all pollutant-generating sources. If operational source control BMPs do not prevent illicit discharges or violations of surface water, ground water, or sediment management standards, structural source control BMPs or treatment BMPs (or both) may be required. In cases where the manual lacks guidance for a specific source of pollutants, the city will work with the owner/operator to implement or adapt BMPs based on the city’s best professional judgement. The owner/operator is responsible for demonstrating the pollutant generating sources do not cause harm and shall be responsible for consultant time provided by the city per the city’s current fee schedule. (Ord. 484 § 2 (Exh. A), 2022)

14.04.210 Appeal of administrative decision.

Any person aggrieved by the granting or denying of a permit pursuant to this chapter shall have the right to appeal to the city council as follows:

A. The appeal shall be in writing and filed with the city clerk within ten business days of the date of the decision.

B. The appeal shall describe the error of law or fact, and may identify new evidence which was not reasonably available at the time of the decision.

C. Upon receipt of a timely appeal, the city clerk shall forward the appeal to the city council, which may either consider the appeal itself or appoint a hearing examiner to consider the appeal. On appeal, the director’s decision shall be accorded substantial weight.

D. An appeal of the city’s final decision shall be by petition to the Snohomish County superior court, in accordance with state law. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.220 Inspection.

A. The director shall have access to any site for which an active permit has been applied or issued to perform on-site review and to ensure compliance with the terms of the permit and with the current APWA Manual. Inspections shall be completed regularly to verify proper installation and maintenance of required erosion and sediment controls. Upon completion of construction and prior to final occupancy, a final inspection shall be completed to ensure proper installation of the permanent stormwater facility.

B. Whenever there is cause to believe that a violation of this chapter has been or is being committed for which no active permit has been issued, the director is authorized to inspect the site pursuant to BMC 14.04.260.

C. The director shall develop and implement a regular inspection program, including a master inspection and maintenance schedule, for all public and private stormwater facilities in the city. Inspections shall be completed on a schedule based on maintenance records and need. Inspections may be scheduled more frequently if determined by the director to be necessary for any reason. If, during the course of the inspection program, additional existing stormwater facilities are discovered, they shall be added to the master inspection and maintenance schedule.

D. The director may inspect BMPs, examine surface and ground water, or sample surface or ground water as often as necessary to determine compliance with this chapter. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.230 Liability insurance.

A. Any applicant required to obtain a stormwater permit shall obtain and maintain liability insurance against claims for injuries to persons or damage to property arising out of or in connection with the stormwater facility.

1. The policy shall be written by an insurance company authorized to conduct business in the state of Washington and having an A.M. Best rating of A-VII or better.

2. The minimum limits of coverage shall be as required by the Construction Projects section of the Washington Cities Insurance Authority Manual (WCIA Manual), current edition, titled ADM.21 Insurance and Indemnity Requirements for Contracts. A copy is on file with the city clerk.

a. The city reserves the right to require additional types of coverage or greater minimum limits based on the extent of the work and the type of permit.

3. Providing coverage in the required amounts shall not relieve the applicant from liability in excess of those amounts.

4. The policy shall waive the right of subrogation against the city.

5. The policy shall defend, indemnify, and hold the city, its officers, officials, employees, agents, and volunteers harmless from any and all claims, injuries, damages, losses, or suits, including attorney fees, arising out of or in connection with construction of the stormwater facility, except for injuries and damages caused by the sole negligence of the city.

6. The coverage shall be primary insurance as respects the city. Any insurance, self-insurance, or insurance pool coverage maintained by the city shall be excess of the applicant’s insurance and shall not contribute with it.

7. The director may modify the minimum policy or coverage requirements upon consultation with the city attorney.

8. In the event that the city accepts responsibility for ownership and maintenance of a stormwater facility per BMC 14.04.280(C), the policy shall be terminated when the city responsibility begins.

9. The applicant shall provide proof of such policy, including all endorsements, to the director prior to commencing construction of any stormwater facility.

10. The policy will remain in force with annual policy periods until completion of the applicable maintenance assurance period. The policy shall be endorsed to state that coverage will not be canceled by either party, except after thirty days’ prior written notice by certified mail, return receipt requested, has been given to the city.

B. The owner(s) of any private stormwater facility shall obtain and maintain liability insurance against claims for injuries to persons or damage to property which may arise from or in connection to inspection, maintenance, repair, or operation of the stormwater facility.

1. The policy shall be written by an insurance company authorized to conduct business in the state of Washington and having an A.M. Best rating of A-VII or better.

2. The minimum limits of coverage shall be as required by the Facility Use Agreements section of the Washington Cities Insurance Authority Manual (WCIA Manual), current edition, titled ADM.21 Insurance and Indemnity Requirements for Contracts. A copy is on file with the city clerk.

3. The policy shall defend, indemnify, and hold the city, its officers, officials, employees, agents, and volunteers harmless from any and all claims, suits, actions, or liabilities for injury or death of any person, or for loss or damage to property, which arises out of the inspection, maintenance, repair, or operation of the stormwater facility, except only such injury or damage as shall have been occasioned by the sole negligence of the city.

4. The coverage shall be primary insurance as respects the city. Any insurance, self-insurance, or insurance pool coverage maintained by the city shall be excess of the applicant’s insurance and shall not contribute with it.

5. In the event that the city accepts responsibility for ownership and maintenance of a stormwater facility per BMC 14.04.280(C), the policy shall be terminated when the city responsibility begins.

6. Proof of such liability policy shall be provided to the city within thirty days upon written request.

7. The insurance will remain in force with annual policy periods until ownership is transferred. Any new owner shall obtain a liability insurance policy as required herein within forty-five days of beginning ownership. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.240 Inspection – Procedures.

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

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

B. If, after reasonable effort, the director is unable to locate the owner or other individuals(s) having charge or control of the property, and has reason to believe the condition of the property or of the stormwater facility creates an imminent hazard to life or property, the director may enter the property. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.250 Inspection – Municipal separate storm sewer system (MS4) – Acceptance of main extensions.

A. The city reserves the right to reject any MS4 extension not inspected and approved by the director.

B. Upon completion of the MS4 extension, testing shall be completed and reviewed by the director prior to final acceptance.

C. No MS4 extension shall be put into service other than for test purposes by duly authorized personnel until the MS4 extension has been accepted by the city and all fees and charges have been paid.

D. The applicant shall provide the city with a bill of sale or real property document, as appropriate and in a form acceptable to the director, for all MS4 extensions as a condition of acceptance of the MS4 extension by the city. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.260 Inspection – Privately maintained stormwater facilities.

The city is authorized to enter at all reasonable times in or upon any property, public or private, for the purpose of operating or maintaining stormwater facilities, or to inspect or investigate any condition relating to the MS4; provided, that the city shall first obtain permission to enter from the owner or individual responsible for such property. If entry is refused, the city shall have recourse to every remedy provided by law to secure entry. Notwithstanding the foregoing, whenever it appears to the city that conditions exist requiring immediate action to protect the public health or safety, the city is authorized to enter at all reasonable times in or upon any property, public or private, for the purpose of inspecting, investigating, or correcting such emergency condition. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.270 Inspection – Records and reporting.

A. Records of new public or private stormwater facilities must include the following:

1. As-built plans and locations, in both paper and electronic formats.

2. Findings of fact for any adjustment granted by the director.

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

4. Engineering reports, if prepared prior to or during construction of the stormwater facility.

B. Upon request of the director, the owner(s) of an existing stormwater facility must submit inspection, maintenance, and repair records for the stormwater facilities, as well as any existing record drawings or diagrams of the stormwater facilities.

C. The director shall report periodically to the city council about the status of the inspections. The annual report may include, but need not be limited to, the portions of the MS4 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. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.280 Ownership of stormwater facilities.

A. The city shall own, operate, and maintain all components of the MS4 in the right-of-way and in easements or tracts granted or dedicated to, and accepted by, the city.

B. The city shall not acquire or accept (via dedication, grant or easement, or other conveyance) existing stormwater facilities located on private property, except when the components are necessary for city construction projects identified in the current stormwater management plan or annual capital improvement program.

C. The city may accept ownership and responsibility for new stormwater facilities (via dedication, grant of easement, or other conveyance) only if all of the following conditions are met:

1. Public ownership of the stormwater facility will provide a public benefit;

2. The property owner grants a dedication, easement, or other conveyance, as appropriate, to the city at no cost;

3. The stormwater facility meets current city standards;

4. The city has sufficient access to the stormwater facility from a public right-of-way; and

5. The city has adequate resources to maintain the stormwater facility.

D. Unless the city specifically accepts ownership and responsibility for new stormwater facilities, stormwater systems, and BMPs located on private property, the owner of the property must operate, maintain, inspect, and repair them in accordance with provisions of this chapter. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.290 Maintenance – Responsibility and standards.

A. All stormwater facilities must be inspected, managed, maintained, and operated in accordance with this chapter, the city’s NPDES permit, the SWMMWW, and the BMC. Drainage systems shall be maintained so that they operate as intended.

B. The responsibility of the city shall be limited to maintenance and operation of the MS4, and the city assumes no responsibility for maintenance and operation of private systems.

C. Property owners are responsible for the inspection, maintenance, operation, or repair of stormwater drainage systems and BMPs. Property owners must inspect, maintain, operate, and repair these systems in compliance with the requirements of this chapter and the SWMMWW. The maintenance requirements specified in the SWMMWW shall be enforced against the owner(s) of the subject property served by the stormwater system.

D. In new subdivisions and short plats, inspection and maintenance responsibility for private drainage systems must be specified on the face of the subdivision or short plat.

E. If a private drainage facility serves multiple lots and the responsibility for inspection and maintenance has not been specified on the subdivision plat, short plat, or other legal document, maintenance responsibility shall rest with the homeowners’ association, if one exists, or otherwise with the owners of the properties served by the facility. If owners of the properties served by the facility cannot be located, maintenance responsibility shall rest with the owner(s) of the property on which the systems are located. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.300 Maintenance – Disposal of waste.

Disposal of waste from maintenance activities must be conducted in accordance with the Minimum Functional Standards for Solid Waste Handling, Chapter 173-304 WAC, guidelines for disposal of waste materials from stormwater maintenance activities, and, where appropriate, the Dangerous Waste Regulations, Chapter 173-303 WAC. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.310 Water quality standards – Water entering surface water bodies.

The quality of any water entering any stream or lake or surface water body directly from the subject property must meet the water quality standards established under the authority of Chapter 90.48 RCW, and contained within Chapter 173-201A WAC. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.320 Water quality standards – Water entering the MS4.

All water directly entering the MS4 from the subject property must meet the following water quality standards:

A. Fecal coliform levels may not exceed a geometric mean of fifty organisms per one hundred milliliters, with not more than ten percent of the samples exceeding one hundred organisms per one hundred milliliters.

B. Dissolved oxygen must exceed nine and one-half milligrams per liter.

C. The concentration of total dissolved gas may not exceed one hundred ten percent of saturation at any point of sample collection.

D. The pH must be within the range of six and one-half to eight and one-half. In addition, the water leaving the subject property may not change the pH of the MS4 by more than two-tenths units.

E. The temperature of the water entering the MS4 may not exceed sixteen degrees Celsius as a result of human activity. In addition, temperature increases in the MS4 may not, as a result of human activity, exceed t = 23/(T + 5).

F. The turbidity of the water leaving the subject property may not exceed five NTUs (nephlometric turbidity units) over the background turbidity when the background turbidity is fifty NTUs or less, or have more than a ten percent increase in turbidity when the background turbidity is more than fifty NTUs.

G. The water leaving the subject property may not contain toxic or deleterious materials except those which result from reasonable and safe activities which are associated with and accessory to an allowable use conducted on the subject property. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.330 Water quality standards – Water entering the ground.

Water that enters the ground water system by penetrating through the surface of the subject property, other than from a septic tank, shall not contain any toxic or deleterious materials except those which result from reasonable and safe activities which are associated with and accessory to an allowable use conducted on the subject property. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.340 Enforcement.

A. It shall be unlawful for any individual to violate any provision of this chapter. Any individual found to be in violation of any provision of this chapter shall be guilty of a misdemeanor and shall be punished in accordance with the provisions of BMC 1.28.030(A).

B. Any individual who, through an act of commission or omission, aids or abets in a violation shall be considered to have committed a violation of this chapter. Each violator is jointly and severally liable for a violation of this chapter.

C. Any individual 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 United States Clean Water Act and may be subject to the sanctions of that Act including civil and criminal penalties.

D. Whenever the director determines that any existing construction site, erosion/sedimentation problem, drainage facility, illicit discharge, or illicit connection poses a hazard to public safety or substantially endangers property, or adversely affects the condition or capacity of the drainage systems, or adversely affects the safety and operation of city right-of-way, or violates federal or state water pollution laws, the applicant to whom the permit was issued, or the individual(s) holding title to the property within which the construction site, erosion/sedimentation problem, drainage facility, illicit discharge, or illicit connection is located, shall, upon receipt of notice in writing from the director, repair or otherwise address the cause of the hazardous situation in conformance with the requirements of this chapter.

E. Should the director have reasonable cause to believe that the situation is so adverse as to preclude written notice, the director may take the measures necessary to eliminate the hazardous situation; provided, that the director shall first make a reasonable effort to locate the owner before acting, in accordance with BMC 14.04.260. In such instances, the individual(s) holding title to the subject property shall be obligated for the payment to the city of all costs incurred by the city. If costs are incurred and a bond pursuant to this chapter or other city requirement has been posted, the director shall have the authority to collect against the bond to cover costs incurred.

F. The director shall initiate an investigation within twenty-one days of any reported or discovery of a suspected illicit connection. The director shall respond to all illicit discharges, including spills, which are determined to constitute a threat to human health, welfare, or the environment. The director shall investigate (or refer to the appropriate agency) within seven days.

G. All known illicit connections to MS4 shall be eliminated. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.350 Stop work orders.

A stop work order may be issued by the director for failure to comply with any of the terms of a stormwater or stormwater discharge permit, or any activity conducted in violation of this chapter or in a dangerous or otherwise unsafe manner, as determined by the director. The stop work order shall be in writing and served on the person(s) engaged in the activity or cause of the activity. The effect of such a stop work order shall be for the persons issued to immediately terminate such work or activity, until authorization is given by the director to proceed. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.360 Order to maintain or repair.

The director shall have the authority to issue to the property owner an order to inspect, maintain, or repair a component of a stormwater facility or BMP to bring it in compliance with this chapter. The order shall include:

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

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

C. A reasonable time to comply, depending on the circumstances. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.370 Water quality test procedures.

A. In the event that water quality testing is utilized in determining whether a violation of this chapter has occurred, the water quality test procedures must be followed as described in the most recent edition of the 40 CFR 136, Guidelines Establishing Test Procedures for the Analysis of Pollutants.

B. As part of any investigation of a potential violation of this division, water samples will be analyzed by a Washington State-certified water quality laboratory capable of conducting the necessary analyses. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)

14.04.380 Liability for costs of investigation.

Any individual found to be in violation of this chapter shall be responsible for the costs of investigation by the city. Such cost may include the analytical services of a certified laboratory. (Ord. 484 § 1 (Exh. A), 2022; Ord. 442 § 8 (Exh. H) (part), 2016)