Chapter 13.40
STORMWATER MANAGEMENT

Sections:

13.40.010    Purpose.

13.40.020    Applicability.

13.40.030    Exemptions, exceptions, and adjustments.

13.40.040    Definitions.

13.40.050    Project types.

13.40.055    Supplemental stormwater guidelines adoption.

13.40.060    Minimum technical requirements.

13.40.065    Permit to be obtained for land clearing.

13.40.070    Submittal requirements.

13.40.080    Review and approval process.

13.40.090    Development in critical areas.

13.40.100    Establishment of regional facilities.

13.40.110    Bonds and liability insurance required.

13.40.120    Operation and maintenance requirements.

13.40.130    Applicability to governmental entities.

13.40.140    Protection of public and private rights.

13.40.150    Violations.

13.40.160    Enforcement.

13.40.170    Penalties.

13.40.180    Appeals.

13.40.190    Severability.

13.40.010 Purpose.

The city council finds that this chapter is necessary to: promote sound development policies and construction procedures which respect and preserve the city’s watercourses; minimize water quality degradation; prevent sedimentation of creeks, streams, ponds, lakes and other waterbodies; protect the life, health, and property of the general public; preserve and enhance the suitability of waters for contact recreation and fishing; preserve and enhance the aesthetic quality of the waters; maintain and protect valuable ground water resources; minimize adverse effects of alterations in ground water quantities, locations and flow patterns; ensure the safety of city roads and rights-of-way; decrease drainage-related damage to public and private property; and avoid or abate public nuisances. This chapter is also necessary to control stormwater runoff generated by development, redevelopment, construction sites, or modifications to existing stormwater systems that directly or indirectly discharge to the city stormwater system, in a manner that complies with the Western Washington Phase II Municipal Stormwater Permit issued by the Department of Ecology. (Ord. 2833 § 2, 2010)

13.40.020 Applicability.

The requirements of this chapter shall apply to all actions requiring the approval or issuance of a permit by either the community development department or the public works department, or projects involving 2,000 square feet or more of land-disturbing activity, new impervious surface, or replaced impervious surface. (Ord. 2833 § 2, 2010)

13.40.030 Exemptions, exceptions, and adjustments.

Exemptions, exceptions, and adjustments to the provisions of this chapter are listed below.

A. Exemptions. The following land uses and land-disturbing activities are exempt from the provisions of this chapter:

1. Forest practices regulated under WAC Title 222, except for Class IV general forest practices that are conversions from timber land to other uses, are exempt from the provisions of the minimum requirements.

2. Commercial agriculture practices that involve working land for production are generally exempt. However, land conversion from timberland to agriculture, and the construction of impervious surfaces are not exempt.

3. Construction of drilling sites, waste management pits, and associated access roads, and construction of transportation and treatment infrastructure such as pipelines, natural gas treatment plants, natural gas pipeline compressor stations, and crude oil pumping stations are exempt. Operators are encouraged to implement and maintain best management practices to minimize erosion and control sediment during and after construction activities to help ensure protection of surface water quality during storm events.

4. The following roadway maintenance practices or activities are exempt: pothole and square-cut patching, overlaying existing asphalt or concrete pavement with asphalt or concrete without expanding the area of coverage, shoulder grading, reshaping/regrading drainage systems, crack sealing, resurfacing with in-kind material without expanding the road prism, and roadside vegetation maintenance.

For sites with one acre or more of land-disturbing activity, the following road maintenance practices or activities are considered redevelopment, and therefore are not categorically exempt. The extent to which this exemption applies is explained for each circumstance.

a. Removing and replacing a paved surface to base course or a lower level, or repairing the roadway base: If impervious surfaces are not expanded, Large Site Minimum Requirements Nos. 1 through 5 apply. However, in most cases, only Large Site Minimum Requirement No. 2, Construction Stormwater Pollution Prevention, shall be required. Where appropriate, project proponents are encouraged to look for opportunities to use permeable and porous pavements.

b. Extending the pavement edge without increasing the size of the road prism, or paving graveled shoulders are considered new impervious surfaces and are subject to the minimum requirements that are triggered when the thresholds identified for redevelopment projects are met.

c. Resurfacing by upgrading from dirt to gravel, asphalt, or concrete; or upgrading from gravel to asphalt, or concrete; or upgrading from a bituminous surface treatment (“chip seal”) to asphalt or concrete: These are considered new impervious surfaces and are subject to the minimum requirements that are triggered when the thresholds identified for redevelopment projects are met.

5. Underground utility projects that replace the ground surface with in-kind material or materials with similar runoff characteristics are only subject to Minimum Requirement No. 2 (for minor, small, or large site projects), Construction Stormwater Pollution Prevention.

6. With respect to replaced impervious surfaces, a small site project may be exempt from compliance with Small Site Minimum Requirement No. 6 (treatment), Small Site Minimum Requirement No. 7 (flow control), or Small Site Minimum Requirement No. 8 (wetlands protection) should the city adopt a plan and schedule that fulfills those requirements through a regional drainage control plan (e.g., via a regional facility or facilities, stream restoration, or basin-specific development requirements).

B. Exceptions. Exceptions to the minimum requirements may be granted by the director following legal public notice of an application for an exception, legal public notice of the director’s decision on the application, and written findings of fact that documents the director’s determination to grant an exception. The department shall keep records, including the written findings of fact, of all local exceptions to the minimum requirements for a period of five years.

Project-specific design exceptions based on site-specific conditions do not require prior approval of the Washington Department of Ecology (WDOE). However, the city must seek prior approval by the WDOE for any jurisdiction-wide exception.

1. The director may grant an exception 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 director must consider and document with written findings of fact the following:

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

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

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

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

e. 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

f. The feasibility for the owner to alter the project to apply the minimum requirements.

2. In addition, any exception must meet the following criteria:

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

b. The exception is the least possible exception that could be granted to comply with the intent of the minimum requirements.

C. Adjustments. Adjustments to the minimum requirements may be granted by the director; provided, that a written finding of fact is prepared that addresses the following:

1. The adjustment provides substantially equivalent environmental protection; and

2. Based on sound engineering practices, the objectives of safety, function, environmental protection and facility maintenance are met. (Ord. 2833 § 2, 2010)

13.40.040 Definitions.

Words and phrases used in this chapter have the meaning set forth in this section:

“Adjustment” means a variation in the application of a minimum requirement to a particular project.

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

“Best management practice (BMP)” means the schedule of activities, prohibition of practices, maintenance procedures, and structural or managerial practices that, when used singly or in combination, prevent or reduce the release of pollutants and other adverse impacts to waters of Washington State.

“Certified erosion and sediment control lead (CESCL)” means an individual who has current certification through an approved erosion and sediment control training program that meets the minimum training standards established by the department (see BMP C160 in the Stormwater Management Manual for Western Washington). A CESCL is knowledgeable in the principles and practices of erosion and sediment control. The CESCL must have the skills to assess site conditions and construction activities that could impact the quality of stormwater and the effectiveness of erosion and sediment control measures used to control the quality of stormwater discharges. Certification is obtained through an Ecology-approved erosion and sediment control course.

“Chapter” means this chapter and any administrative rules and regulations adopted to implement this chapter.

“Common plan of development or sale” means residential developments which are planned and/or developed in several stages but submitted together for approvals, and which typically consist of clusters of multi-unit structures interspersed with areas of common open space.

“Comprehensive drainage plan” means a detailed analysis for each drainage basin which compares the capabilities and needs for runoff accommodation based on the project type, land use, and structural and nonstructural management alternatives. The plan recommends the form, location and extent of quantity and quality control measures which optimally would meet the legal constraints, water quality standards and community standards, as well as identifies the institutional and funding requirements for plan implementation.

“Computations” means calculations, including coefficients and other pertinent data, made to determine the drainage plan with rates of flow of water given in cubic feet per second (cfs) and cubic meters per second (cms).

“Conceptual drainage plan” means a plan for the collection, transport, treatment and discharge of storm water within the subject property. The requirements and contents for a conceptual drainage plan are outlined in the Supplemental Stormwater Guidelines.

“Construction stormwater pollution prevention plan (construction SWPPP)” means a document that describes the potential for pollution problems on a construction project and explains and illustrates the measures to be taken on the construction site to control those problems.

“Critical area” means the following areas:

A. Wetlands;

B. Streams;

C. Fish and wildlife priority habitat;

D. Geologically hazardous areas; and

E. Any additional areas defined or established as critical areas under the provisions of the Washington State Growth Management Act or the provisions of Chapter 17.10 LMC.

“Department” means the Lynnwood public works department.

“Design storm” means that rainfall event or pattern of events which is selected by the public works department for use in analyzing and designing drainage facilities.

“Detailed drainage plan” means a plan for collection, transport, treatment, and discharge of storm water within the subject property, including all computations required to determine the extent and nature of the proposed plan. It shall include a construction stormwater pollution prevention plan (construction SWPPP) and a permanent stormwater control plan (PSC plan), when required by this chapter. Such plan shall be prepared by a registered professional civil engineer. The requirements and contents for a detailed drainage plan are outlined in the Supplemental Stormwater Guidelines.

“Detention facilities” means facilities designed to hold runoff while gradually releasing it at a predetermined maximum rate.

“Developer” means the individual(s), corporation(s), or other legal entity submitting drainage plans as described in LMC 13.40.070.

“Director” means the Lynnwood public works director, and/or the director’s designee.

“Drainage area” means the watershed contributing water runoff to and including the subject property.

Drainage Plan. See “conceptual drainage plan,” “detailed drainage plan.”

“Drainage treatment/abatement facilities” means any facilities installed or constructed in conjunction with a drainage plan for the purpose of treatment or abatement of urban runoff.

“Effective impervious surface” means those impervious surfaces that are connected via sheet flow or discrete conveyance to a drainage system. Impervious surfaces on residential development sites are considered ineffective if the runoff is dispersed through at least 100 feet of native vegetation in accordance with BMP T5.30, “Full Dispersion,” as described in Chapter 5 of Volume V of the Stormwater Management Manual for Western Washington.

“Exception” means relief from the application of a minimum requirement to a project.

“Exemption” means land uses and land-disturbing activities that are not required to follow the provisions of this chapter.

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

“Impervious surface” means a hard surface area that either prevents or retards the entry of water into the soil mantle as under natural conditions prior to development. A hard 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 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.

“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.

“Low impact development” is a stormwater management strategy that emphasizes conservation and use of existing site features integrated with distributed, small-scale stormwater controls to more closely mimic natural hydrologic patterns on the site.

“Maintenance” includes activities conducted on currently serviceable structures, facilities, and equipment that involves no expansion or use beyond that previously existing and results 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. See also road maintenance exemptions in LMC 13.40.030.

“Maximum extent feasible” means the requirement is to be fully implemented, constrained only by the physical limitations of the site, practical considerations of engineering design, and reasonable considerations of financial costs and environmental impacts.

“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):

A. Owned or operated by the city of Lynnwood;

B. Designed or used for collecting or conveying stormwater;

C. Which is not part of a publicly owned treatment works (POTW); and

D. Which is not a combined sewer.

“Native vegetation” is comprised of plant species, other than noxious weeds, that are indigenous to the coastal region of the Pacific Northwest and which reasonably could have been expected to naturally occur on the site. Examples may include, but are not limited to, trees such as Douglas fir, western hemlock, western red cedar, alder, big-leaf maple, and vine maple; shrubs such as willow, elderberry, salmonberry, and salal; and herbaceous plants such as sword fern, foam flower, and fireweed.

“New development” includes 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; mining; dredging; filling; grading; landscaping; excavation; drilling operations; and subdivision, short subdivision and binding site plans, as defined and applied in Chapter 58.17 RCW. Projects meeting the definition of redevelopment shall not be considered new development.

“Pollutant” means any substance which, when added to water, would contaminate or alter the chemical, physical, or biological properties of any waters of the state. This includes a change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance. It also includes any substance which renders such waters harmful, detrimental, or injurious to the public health, safety, or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish, or other aquatic life.

“Pollution-generating impervious surface (PGIS)” means those impervious surfaces considered to be a significant source of pollutants in stormwater runoff. Such surfaces include those which are subject to: vehicular use; industrial activities (as further defined in the glossary of Volume 1 of the Stormwater Management Manual for Western Washington); or storage of erodible or leachable materials, wastes, or chemicals, and which receive direct rainfall or the run-on or blow-in of rainfall. Erodible or leachable materials, wastes, or chemicals are those substances which, when exposed to rainfall, measurably alter the physical or chemical characteristics of the rainfall runoff. Examples include erodible soils that are stockpiled, uncovered process wastes, manure, fertilizers, oily substances, ashes, kiln dust, and garbage dumpster leakage. Metal roofs are also considered to be PGIS unless they are coated with an inert, nonleachable material (e.g., baked-on enamel coating). A surface, whether paved or not, shall be considered subject to vehicular use if it is regularly used by motor vehicles. The following are considered regularly used surfaces: roads, unvegetated road shoulders, bike lanes within the traveled lane of a roadway, driveways, parking lots, unfenced fire lanes, vehicular equipment storage yards, and airport runways.

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

“Pollution-generating pervious surfaces (PGPS)” means any nonimpervious surface subject to use of pesticides and fertilizers or loss of soil. Typical PGPS include lawns, landscaped areas, golf courses, parks, cemeteries, and sports fields.

“Project site” means that portion of a property, properties, or right-of-way subject to land-disturbing activities, new impervious surfaces, or replaced impervious surfaces.

“Redevelopment” on a site that is already substantially developed (i.e., has 35 percent or more of existing impervious surface coverage) means the creation or addition of impervious surfaces; the expansion of a building footprint or addition or replacement of a structure; structural development including construction, installation or expansion of a building or other structure; replacement of impervious surface that is not part of a routine maintenance activity; and land-disturbing activities.

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

“Retention/detention facilities” means a type of drainage facility designed either to hold water for a considerable length of time and then release it by evaporation, plant transpiration, and/or infiltration into the ground; or to hold surface and stormwater runoff for a short period of time and then release it to the surface and stormwater management system.

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

“Storm drainage system” means publicly or privately owned facilities, including the city’s municipal separate storm sewer system, by which stormwater is collected and/or conveyed, including but not limited to any roads with drainage systems, municipal streets, gutters, curbs, inlets, piped storm drains, ditches and/or swales, pumping facilities, retention and detention basins, natural and human made or altered drainage channels, reservoirs, and other drainage structures.

“Stormwater” means water originating from rainfall and other precipitation including surface runoff and drainage.

“Supplemental Stormwater Guidelines” means the manual of technical and administrative procedures established by the public works department which delineates methods to be used, the level of detail of analysis required, and other details for implementation of the provisions of this chapter.

“Wetland” means areas that are inundated or saturated by surface water or ground water at a frequency or duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soils conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention ponds and landscape amenities. Wetlands do include those artificial wetlands intentionally created from nonwetland areas to mitigate conversion of wetlands. (Ord. 2833 § 2, 2010)

13.40.050 Project types.

For purposes of this chapter, projects are classified as large site, small site, or minor site projects as described below, primarily based on the extent of impervious surface generated and the type of land-disturbing activities that will occur.

A. Large site projects involve:

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

2. Projects that disturb less than one acre of land that are part of a larger common plan of development or sale where land-disturbing activity involves one acre or more.

B. Small site projects involve:

1. Five thousand square feet or greater of new, replaced, or new plus replaced impervious surface area; or

2. At least 7,000 square feet of land-disturbing activity; and

3. Are not a large site project.

C. Minor site projects involve:

1. Two thousand square feet or greater of new, replaced, or new plus replaced impervious surface area; and

2. Are not a small site project or a large site project. (Ord. 2833 § 2, 2010)

13.40.055 Supplemental stormwater guidelines adoption.

The director may adopt, and amend as deemed prudent and necessary, the City of Lynnwood Supplemental Stormwater Guidelines to further the purposes of this chapter. This document shall serve as a guidance manual of technical and administrative procedures to assist the end user in the methods to be used, the level of detail of analysis required, and other technical details for implementation of and compliance with the provisions of this chapter. (Ord. 2833 § 2, 2010)

13.40.060 Minimum technical requirements.

A. General.

1. All activities covered by this chapter shall comply with the site planning and best management practice selection and design criteria in the City of Lynnwood Supplemental Stormwater Guidelines, herein referred to as the Supplemental Stormwater Guidelines, to implement the applicable minimum technical requirements listed in this chapter.

2. 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 Western Washington Phase II Municipal Stormwater Permit, Appendix 1, Section 7.0.

3. Low Impact Development. Consistent with the city of Lynnwood comprehensive plan (environmental resources element, and other sections) and surface water management comprehensive plan, low impact development techniques shall be employed to the maximum extent feasible. When low impact development techniques are employed, the design shall be consistent with the most recent version of Low Impact Development, Technical Guidance for Puget Sound (Puget Sound Partnership [formerly the Puget Sound Action Team] and Washington State University Pierce County Extension) or the Supplemental Stormwater Guidelines.

B. Drainage and Retention/Detention System Design Requirements.

1. All drainage easements within the subject property shall be at least 20 feet in width for operation and maintenance of open channel or closed system installation, unless otherwise deemed necessary and approved by the director.

2. Open retention/detention ponds and infiltration facilities shall not be located in dedicated public road right-of-way areas unless specifically waived by the director.

C. Minimum Technical Requirements by Project Type.

1. Large site projects shall meet the large site minimum requirements outlined in the Supplemental Stormwater Guidelines.

2. Small site projects shall, at a minimum, comply with the small site minimum requirements outlined in the Supplemental Stormwater Guidelines.

3. Minor site projects shall, at a minimum, comply with the minor site minimum requirements outlined in the Supplemental Stormwater Guidelines.

4. Additional requirements may be imposed by the director or designee on minor project sites to meet the purpose of this chapter based on site-specific factors including, but not limited to, location, soil conditions, slope, and designated use. (Ord. 2833 § 2, 2010)

13.40.065 Permit to be obtained for land clearing.

Because of potential impacts to surface water systems, a permit application for any land clearing in excess of one-eighth of an acre shall be submitted to the department of public works for processing as required by LMC 2.44.040. (Ord. 2833 § 2, 2010)

13.40.070 Submittal requirements.

A. Open Channel Construction. Applicants proposing to handle drainage with open channels must meet the following submittal requirements:

1. The water surface elevation will be indicated on the plan and profile drawings.

2. The configuration of the finished grades constituting the banks of the open channel will be shown on the drawings.

3. The proposed cross-section of the channel will be shown with stable side slopes as approved by the public works department.

4. The water surface elevation of the flow for the design storm will be indicated on the cross-section.

5. The director may require the applicant to submit calculations and/or other design information to prove that channel erosion will not occur.

B. Conceptual Drainage Plan. Applicants proposing minor site projects that are not located within an environmentally critical area shall submit a conceptual drainage plan, which shall include the following information:

1. Character of the existing site;

2. Natural drainage features on or adjacent to the site;

3. Location and dimensions of all impervious surfaces;

4. Flow arrows indicating the direction of stormwater flows on-site;

5. Any off-site flows entering the site;

6. Proposed method of utilizing the existing drainage system;

7. Documentation specifying how the project complies with all applicable minimum requirements.

The required contents of the conceptual drainage plan are described in the Supplemental Stormwater Guidelines. Based upon the review of the conceptual drainage plan, the director shall determine if further drainage plans are required.

C. Detailed Drainage Plan. In addition to the elements required for the conceptual drainage plan, applicants proposing small site projects or large site projects shall submit a detailed drainage plan, which shall include the following information with respect to surface and pertinent subsurface water flows entering, flowing within, and leaving the subject property both during and after construction:

1. Project description.

2. Background computations for sizing drainage facilities.

3. Proposed measures for handling the computed runoff at the detail level specified in the Supplemental Stormwater Guidelines.

4. Proposed measures for controlling runoff and erosion/sedimentation during clearing, grading and construction, and proposed staging and schedule of all building, clearing, and grading activities, in accordance with the Supplemental Stormwater Guidelines.

5. Documentation specifying how the project complies with all applicable minimum requirements.

The required contents of the detailed drainage plan are described in the Supplemental Stormwater Guidelines.

D. Commencement of construction work meeting any of the thresholds identified in LMC 13.40.050 shall not begin until such time as a storm drainage permit is applied for, the permit is processed by the public works department as required by LMC 2.44.040, and final approval of the drainage plan is obtained in accordance with LMC 13.40.080. Failure to comply with this provision shall result in revocation of all permits for the proposed development, and the city may proceed as authorized under LMC 13.40.150. The same plan submitted during one permit/approval process may be subsequently submitted with further required applications. The plan shall be supplemented with such additional information as required by LMC 2.44.040 and/or required by the provisions of the Supplemental Stormwater Guidelines.

E. The requirements of this section may be modified at the discretion of the director when more information is deemed necessary. (Ord. 2833 § 2, 2010)

13.40.080 Review and approval process.

A. All stormwater drainage plans listed in LMC 13.40.070 shall be submitted for review by and approval of the public works department in accordance with the procedures established in the Supplemental Stormwater Guidelines and as required by LMC 2.44.040.

B. At the time of approval of the drainage plan for the subject property, a schedule for inspection of construction and facilities will be established by the public works department. (Ord. 2833 § 2, 2010)

13.40.090 Development in critical areas.

All development in and adjacent to critical areas shall be required to comply with the terms and conditions of Chapter 17.10 LMC, in addition to any requirements of this chapter. (Ord. 2833 § 2, 2010)

13.40.100 Establishment of regional facilities.

In the event that public benefits would accrue due to modification of the drainage plan for the subject property to better implement the recommendations of the comprehensive drainage plan, the public works department may recommend that the city should assume responsibility for the further design, construction, operation and maintenance of drainage facilities on the subject property. Such decision shall be made concurrently with review and approval of the plan as specified in LMC 13.40.080. In the event that the city decides to assume responsibility for design, construction, operation and maintenance of the facilities, the developer will be required to contribute a pro rata share to the construction cost of the facilities. The developer may be required to supply additional information at the request of the public works department to aid in the determination by the city. Guidelines for implementing this section will be defined in the Supplemental Stormwater Guidelines or by the public works department. (Ord. 2833 § 2, 2010)

13.40.110 Bonds and liability insurance required.

A. The public works department is authorized to require all persons constructing retention/detention or other drainage treatment/abatement facilities to post surety and cash bonds.

B. Where such persons have previously posted or are required to post other such bonds on the facility itself or on other construction related to the facility, such persons may, with the permission of the public works department and to the extent allowable by law, combine all such bonds into a single bond; provided, that at no time shall the amount thus bonded be less than the total amount which would have been required in the form of separate bonds; and provided, further, that such a bond shall on its face clearly delineate those separate bonds which it is intended to replace.

1. Construction Bond. Prior to commencing construction, the person constructing the facility shall post a construction bond in an amount sufficient to cover the cost of conforming the construction with the approved drainage plans. The amount of the bond shall be increased at one-year intervals in a proportion equivalent to the prevailing rate of inflation in construction costs as specified in the Supplemental Stormwater Guidelines. After determination by the public works department that all facilities are constructed in compliance with the approved plans, the construction bond shall be released. Alternatively, an equivalent cash deposit to an escrow account administered by a local bank designated by the city could be required at city option.

2. Maintenance Bond. After satisfactory completion of the facilities and concurrent with release of the construction bond by the city, the person constructing the facility shall commence a two-year period of satisfactory maintenance of the facility. A cash bond to be used at the discretion of the engineer to correct deficiencies in the maintenance affecting public health, safety and welfare must be posted and maintained throughout the two-year maintenance period. The amount of the cash bond shall be determined by the city engineer, but shall not be in excess of 10 percent nor less than five percent of the estimated construction cost of the drainage facilities. In addition, a surety bond or cash bond to cover the cost of design defects or failures in workmanship of the facilities shall also be posted and maintained throughout the two-year maintenance period. The amount of the bonds shall be increased at one-year intervals in a proportion equivalent to the prevailing rate of inflation. Alternatively, an equivalent cash deposit to an escrow account administered by a local bank designated by the city could be required at city option.

3. Liability Policy. The person constructing the facility shall maintain a liability policy in the amount of $100,000 per individual, $300,000 per occurrence, and $50,000 property damage, which shall name the city as an additional insured and which shall protect the city from any liability up to those amounts for any accident, negligence, failure of the facility, or any other liability whatsoever, relating to the construction or maintenance of the facility. The liability policy shall be maintained for the duration of the facility by the owner of the facility; provided, that in the case of facilities assumed by the city for maintenance pursuant to LMC 13.40.120, the liability policy shall be terminated when the city maintenance responsibility commences. (Ord. 2833 § 2, 2010)

13.40.120 Operation and maintenance requirements.

Inspection and maintenance of all stormwater facilities shall be performed in accordance with the Supplemental Stormwater Guidelines.

A. Stormwater Maintenance and Inspection Standards. Stormwater facilities shall be inspected and maintained per the requirements of the Supplemental Stormwater Guidelines. For systems which do not have a maintenance standard, the owner shall develop a standard based on guidelines from the manufacturer, designer, or a registered professional engineer and submit the standards to the director for approval.

B. Ownership. Stormwater facilities are either privately or publicly owned and maintained. All stormwater facilities that serve commercial and industrial sites are private. Storm drainage facilities or controls that are privately owned by a homeowner’s association or similar organization also are private.

1. The city may assume the operation and maintenance responsibility of retention/detention or other drainage treatment/abatement facilities after the expiration of the required operation and maintenance period in connection with the subdivision of land if:

a. All of the requirements of LMC 13.40.110 have been fully complied with;

b. The facilities have been inspected and approved by the public works department after two years of operation in accordance with the Supplemental Stormwater Guidelines;

c. All necessary easements entitling the city to properly operate and maintain the facility have been conveyed to the city and recorded with the Snohomish County auditor;

d. The developer or owner has supplied to the city an accounting of capital, construction, and operation and maintenance expenses or other items, for the drainage facilities up to the end of the previous two-year period, for the purpose of establishing the basis for future bonding requirements for other developments.

2. In the event that the city elects not to assume the operation and maintenance responsibility for the facilities, it will be the responsibility of the developer to make arrangements with the occupants or owners of the subject property for assumption of operation and maintenance in a manner subject to the approval of the public works department or in accordance with the Supplemental Stormwater Guidelines. Such arrangements shall be completed and approved prior to the end of the two-year period of developer responsibility.

3. If the city elects not to assume operation and maintenance responsibility, the drainage facilities shall be operated and maintained in accordance with the arrangements as approved by the public works department. The city may inspect the facilities in order to ensure continued use of the facilities for the purposes for which they were built and in accordance with these arrangements.

4. If any person constructing retention/detention or other drainage treatment/abatement facilities and/or receiving approval of drainage plans prior to the effective date of the ordinance codified in this chapter reevaluates according to the requirements of this chapter the facilities and/or plans so constructed and/or approved and demonstrates to the engineer’s satisfaction acceptable compliance with its requirements, the city may, after inspection, approval and acknowledgment of the proper posting of the required bonds as specified in LMC 13.40.110, assume operation and maintenance responsibility of the facilities.

5. In cases in which all or part of the drainage facilities are not accessible for operation or maintenance purposes due to overlying structures or other causes, the city shall be held harmless for damages which might occur due to failure of design or workmanship of those segments, and further will not be responsible for their maintenance, replacement, or rehabilitation. In such cases, responsibility shall revert to the existing owner of such facilities.

C. Inspection and Maintenance.

1. All storm drainage facilities or controls shall be regularly inspected to ensure proper operation as required in the Supplemental Stormwater Guidelines. An operation and maintenance manual consistent with the provisions in Volume V of the Stormwater Management Manual for Western Washington is required for all proposed stormwater facilities and BMPs. For private facilities, a copy of the operation and maintenance manual shall be retained on site or within reasonable access to the site, and shall be transferred with the property to the new owner. For public facilities, a copy of the manual shall be retained in the appropriate department. A log of maintenance activity that indicates what actions were taken shall be kept and be available for inspection.

2. When an inspection identifies an exceedance of the maintenance standard, maintenance shall be performed:

a. Within one year for typical maintenance of facilities, except catch basins.

b. Within six months for catch basins.

c. Within two years for maintenance that requires capital construction of less than $25,000.

D. Disposal of Waste from Maintenance Activities. Disposal of waste from maintenance activities shall be conducted in accordance with the minimum Functional Standards for Solid Waste Handling, Chapter 173-304 WAC, guidelines for disposal of waste materials from storm water maintenance activities, and where appropriate, the Dangerous Waste Regulations, Chapter 173-303 WAC.

E. City Inspection. The regular inspection of privately owned storm drainage facilities or controls is essential to enable the city to evaluate the proper operation of the city’s MS4 and the environment. The city shall have access to private stormwater facilities for inspection to ensure they are properly operated and maintained. (Ord. 2833 § 2, 2010)

13.40.130 Applicability to governmental entities.

A. All municipal corporations and governmental entities shall be required to submit a drainage plan and comply with the terms of this chapter when developing and/or improving land, including but not limited to road building and widening, within the areas of the city.

B. It is recognized that many other city, county, state and federal permit conditions may apply to the proposed action and that compliance with the provisions of this chapter does not constitute compliance with such other requirements. (Ord. 2833 § 2, 2010)

13.40.140 Protection of public and private rights.

Implementation of any provision of this chapter shall not cause nor be construed as an infringement of the rights of individuals, municipalities, or corporations other than the developer submitting a drainage plan as described in LMC 13.40.070. (Ord. 2833 § 2, 2010)

13.40.150 Violations.

It shall be unlawful for any person to violate any provision of this chapter. Any person found to be in violation of any provision of this chapter shall be guilty of a misdemeanor. Each day’s violation of the provisions of this chapter shall be deemed a separate offense.

Any person 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. The director may take enforcement action, in whole or in part, against any violator. Each violator is jointly and severally liable for a violation of this chapter. The decisions whether to take enforcement action, what type of action to take, and which person to take action against, are decisions entirely within the director’s discretion.

Furthermore, 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 may be subject to the sanctions of that act including civil and criminal penalties. (Ord. 2833 § 2, 2010)

13.40.160 Enforcement.

The director shall have the authority to enforce any and all provisions of this chapter.

A. Public Nuisance. Any violation of any provision of this chapter is a threat to public health, safety, and welfare, and is declared and deemed a public nuisance, and is subject to the terms and provisions of the code enforcement chapter of the Lynnwood Municipal Code (Chapter 1.40 LMC).

B. Escalating Enforcement. When a violation of this chapter has been committed, the director may use an escalating method of progressive severity to gain compliance; however, the director may take any enforcement action without regard to precedence, or any available legal recourse provided by law, to eliminate or end an emergency. Escalating enforcement actions shall be taken in the following order of precedence:

1. First Violation. Written notice to cease and desist activity, notification of violation and warning, including education on preventing further illicit discharges.

2. Second Violation. Written notice to cease and desist activity, and notice of violation and order of corrective action.

3. Third Violation. Written notice to cease and desist activity, and citation for civil infraction shall be issued in accordance with the provisions of Chapter 1.40 LMC.

4. Fourth Violation. Written notice to cease and desist activity, citation for civil infraction, and order assessing civil penalties shall be issued in accordance with the provisions of Chapter 1.40 LMC.

5. Fifth Violation and Thereafter. Written notice to cease and desist activity, citation for civil infraction, and order assessing civil penalties shall be issued in accordance with the provisions of Chapter 1.40 LMC, and pursuit of criminal charges. (Ord. 2833 § 2, 2010)

13.40.170 Penalties.

When a violation of this chapter has been committed, the following penalties may be assessed:

A. Corrective Actions. The director shall have the authority to require any and all of the following corrective actions in order to gain compliance with this chapter:

1. Cease and desist or stop work order;

2. Elimination of illicit connection;

3. Abatement of any and all contaminants;

4. Implementation of source control or treatment BMPs;

5. Restoration of affected property, waterway, or conveyance;

6. Other actions deemed necessary by the director.

B. Abatement by City.

1. City Action. If the violation has not been corrected pursuant to the requirements set forth in the notice of corrective action, the city may enter upon the subject premises and is authorized to take any and all measures necessary to abate the violation. It shall be unlawful for any person, owner, agent or person in possession of any premises to refuse to allow the city or designated contractor to enter upon the premises for the purposes set forth above and the city may pursue any lawful remedy at its disposal.

2. Recovering Cost of Abatement. Should a person be found in violation of this chapter, the city shall be entitled to recover all abatement costs, personnel expenses, sampling and monitoring costs, attorney’s fees, court costs and other administrative expenses associated with enforcement hereof.

C. Civil Penalties. Any person found to be in violation of this chapter may be subject to civil penalties. Civil penalties shall constitute a personal obligation of the person against whom the penalties were imposed. An assessed civil penalty must be paid to the office of the finance director, city of Lynnwood. The provisions of this section are in addition to, and not in lieu of, any other penalty, sanction, or right of action provided by the law.

1. Daily Fines. These fines shall be cumulative, accrue daily until the required corrective action is taken, and be assessed as follows:

a. First day: $100.00 for each violation.

b. Second day: $200.00 for each violation.

c. Third day: $300.00 for each violation.

d. Fourth day: $400.00 for each violation.

e. Each additional day: $500.00 for each violation.

2. Economic Benefit. The director may assess a civil penalty equivalent to the economic benefit the violator derives from the violation. The value of the assessed penalty shall be documented, and shall be based on the greater of: the resulting increase in value of the property or business received by the violator for not complying with this chapter; or the savings of construction or retrofit costs realized by the violator for not complying with this chapter.

3. Use of Collection Agency Authorized. The city, in its sole and exclusive discretion, may retain a collection agency to collect any and all fines assessed under this chapter. When a collection agency is used, fines will be collected at a rate of 150 percent pursuant to RCW 19.16.500.

D. Criminal Penalties. Any person found to be in violation of this chapter may be subject to criminal penalties, as prescribed by state law, RCW 90.48.140. (Ord. 2833 § 2, 2010)

13.40.180 Appeals.

Any person who objects to a final order of the city under this chapter may file an appeal to the hearing examiner. The person shall file a written protest objecting to the order of the city with the city clerk within 14 days of the order. The city shall process the appeal under Process VI, LMC 1.35.600. (Ord. 2833 § 2, 2010)

13.40.190 Severability.

If any paragraph, clause, sentence, section or part of this chapter or the application thereof to any person or circumstances shall be adjudged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered and shall not affect or invalidate the remainder of any part thereof to any other person or circumstances and to this end the provisions of each paragraph, clause, sentence, section or part of this chapter are hereby declared to be severable. (Ord. 2833 § 2, 2010)