Chapter 13.45
SURFACE WATER QUALITY

Sections:

13.45.005    Purpose.

13.45.010    Definitions.

13.45.015    Applicability.

13.45.020    Administration.

13.45.025    Illicit discharges into Lynnwood surface waters prohibited.

13.45.030    Best management practices.

13.45.035    Emergency spill control plan.

13.45.040    Discharges not considered illicit.

13.45.045    Inspection and monitoring of discharges.

13.45.050    Notification of spills.

13.45.055    Violations.

13.45.060    Enforcement.

13.45.065    Penalties.

13.45.070    Appeals.

13.45.075    Severability.

13.45.005 Purpose.

The purpose of this chapter is to protect the city’s surface and ground water quality by providing minimum requirements for reducing and controlling the discharge of contaminants. The city council recognizes that water quality degradation can result either directly from one discharge or through the collective impact of many non-point source discharges. Therefore, this chapter prohibits the discharge of contaminants into surface and stormwater and ground water, and outlines preventive measures to restrict contaminants from entering such waters. These measures include education, source control, implementation of best management practices (BMPs), as well as enforcement, amongst others. (Ord. 2834 § 1, 2010)

13.45.010 Definitions.

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

“AKART” means all known, available and reasonable methods of prevention, control and treatment. AKART represents the most current methodology that can be reasonably required for preventing, controlling or abating the pollutants associated with a discharge. AKART applies to both point and non-point sources of pollution.

“Best management practices” or “BMPs” mean the best available and reasonable physical, structural, managerial or behavioral activities, that, when used singly or in combination, eliminate or reduce the contamination of both surface and ground waters.

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

“Clean Water Act” means 33 U.S.C. 1251 et seq., and any subsequent amendments thereto.

“Combined sewer” means a system that collects sanitary sewage and stormwater in a single sewer system.

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

“Discharge” means to throw, drain, release, dump, spill, empty, emit, or pour forth any matter or to cause or allow matter to flow, run or seep from land or be thrown, drained, released, dumped, spilled, emptied, emitted or poured into water.

“Drainage facility” means a constructed or engineered feature that collects, conveys, stores or treats surface and stormwater runoff. “Drainage facility” includes, but is not limited to, a constructed or engineered stream, pipeline, channel, ditch, gutter, lake, wetland, closed depression, flow control or water quality treatment facility, erosion and sediment control facility and other structure and appurtenance that provides for drainage.

“Ground water” means all waters that exist beneath the land surface or beneath the bed of any stream, lake or reservoir or other body of surface water, whatever may be the geological formation or structure in which such water stands or flows, percolates or otherwise moves.

“Hazardous material” 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 10 mg/liter chlorine.

“Illicit connection” means any manmade conveyance that is connected to a municipal separate storm sewer without a permit, excluding roof drains and other similar type connections. Examples include sanitary sewer connections, floor drains, channels, pipelines, conduits, inlets, or outlets that are connected directly to the municipal separate storm sewer system.

“Illicit discharge” means any direct or indirect non-stormwater discharge to the city’s storm drain system, except as expressly allowed by this chapter.

“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.

“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.

“National Pollutant Discharge Elimination System” or “NPDES” means the national program for controlling pollutants from point source discharges directly into waters of the United States under the Clean Water Act.

“National Pollutant Discharge Elimination System (NPDES) permit” means an authorization, license or equivalent control document issued by the Environmental Protection Agency or the Washington State Department of Ecology to implement the requirements of the NPDES program.

“Non-stormwater discharge” means any discharge to the storm drain system that is not composed entirely of stormwater.

“Person” means an individual and his or her agent or assign, municipality, political subdivision, government agency, partnership, corporation, business or any other entity.

“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.

“POTW” means any device or system used in treatment of municipal sewage or industrial wastes of a liquid nature which is publicly owned.

“Premises” means any building, lot, parcel of land, or portion of land, whether improved or unimproved, including adjacent sidewalks and parking strips.

“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.

“Source control BMP” means a BMP intended to prevent contaminants from entering surface and stormwater or ground water including the modification of processes to eliminate the production or use of contaminants. Source control BMPs can be either structural or nonstructural. Structural source control BMPs involve the construction of a physical structure on site, or other type of physical modification to a site. An example of a structural source control BMP is building a covered storage area. A nonstructural source control BMP involves the modification or addition of managerial or behavioral practices. An example of a nonstructural source control BMP is using less toxic alternatives to current products or sweeping parking lots.

“State waste discharge permit” means an authorization, license, or equivalent control document issued by the Washington State Department of Ecology in accordance with Chapter 173-216 WAC.

“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” or “surface water” means water originating from rainfall and other precipitation that is found on ground surfaces and in drainage facilities, rivers, streams, springs, seeps, ponds, lakes, wetlands, and shallow ground water.

“Stormwater pollution prevention plan (SWPPP)” means a document which describes the best management practices and activities to be implemented by a person to identify sources of pollution or contamination at a premises and the actions to eliminate or reduce pollutant discharges to stormwater, stormwater conveyance systems, and/or receiving waters to the maximum extent practicable.

“Treatment BMP” means a BMP intended to remove contaminants once they are already contained in stormwater. Examples of treatment BMPs include oil/water separators, biofiltration swales and wetponds. (Ord. 2834 § 1, 2010)

13.45.015 Applicability.

This chapter shall apply to all discharges entering the MS4, ground waters, or a waterbody from any developed or undeveloped lands, unless explicitly exempted by the city. (Ord. 2834 § 1, 2010)

13.45.020 Administration.

The director or his designee is authorized to implement the provisions of this chapter. To do so, the director is authorized to promulgate and adopt administrative rules and regulations as necessary. The director will coordinate the implementation and enforcement of this chapter with other departments of the city. (Ord. 2834 § 1, 2010)

13.45.025 Illicit discharges into Lynnwood surface waters prohibited.

A. Illicit Discharges. It is unlawful for any person to cause or permit to discharge any contaminants into surface and stormwater, the storm drainage system, ground water or stream. Contaminants that, if discharged, would constitute an illicit discharge include, but are not limited to, the following:

1. Trash or debris;

2. Construction materials;

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

4. Any and all automotive fluid, parts and products;

5. Metals in either particulate or dissolved form;

6. Flammable or explosive materials;

7. Radioactive material;

8. Batteries;

9. Acids, alkalis, or bases;

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

11. Degreasers and solvents;

12. Drain cleaners;

13. Pesticides, herbicides or fertilizers;

14. Steam cleaning wastes;

15. Soaps, detergents or ammonia;

16. Swimming pool drainage;

17. Chlorine, bromine and other disinfectants;

18. Heated water;

19. Domestic animal wastes;

20. Sewage;

21. Recreational vehicle waste;

22. Animal carcasses;

23. Food wastes;

24. Bark and other fibrous materials;

25. Collected lawn clippings, leaves or branches;

26. Silt, sediment or gravel;

27. Dyes, except as stated in LMC 13.45.040;

28. Chemicals not normally found in uncontaminated water;

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

30. Any hazardous material or waste not listed above.

B. Illicit Connections. Any connection identified by the director that could convey anything not composed entirely of surface and stormwater directly to surface and stormwater or ground water is considered an illicit connection and is prohibited, with the following exceptions:

1. Connections conveying allowable discharges under this chapter;

2. Connections conveying allowable discharges pursuant to an NPDES permit. (Ord. 2834 § 1, 2010)

13.45.030 Best management practices.

A. BMP Design. The owner or operator of a commercial or industrial establishment shall provide and maintain, at its own expense, reasonable protection from accidental discharge of prohibited materials or other wastes into the municipal storm drainage system or waterbody through the use of these structural and nonstructural BMPs. Further, any person responsible for a premises which is, or may be, the source of an illicit discharge, may be required to implement, at said person’s expense, additional structural and nonstructural BMPs to prevent the further discharge of pollutants to the municipal separate storm sewer system.

For any activity which may result in illicit discharges, the director may require the use of the Washington State Department of Ecology’s 2005 Stormwater Management Manual for Western Washington, Volume IV, Source Control BMPs, and Volume V, Runoff Treatment BMPs (hereafter “manual”) or other appropriate manual or guidance (as approved by the director). The manual outlines requirements identifying best management practices, including pollutant source control for any activity, operation, or facility which may cause or contribute to pollution or contamination of stormwater, the storm drain system, or waters of the United States.

Compliance with all terms and conditions of a valid NPDES permit authorizing the discharge of stormwater associated with industrial activity, to the extent practicable, shall be deemed in compliance with the provisions of this section. These BMPs shall be part of an SWPPP as necessary for compliance with requirements of the NPDES permit.

B. Activities Requiring BMPs. BMPs shall be applied to any business or residential activity that might result in prohibited discharges. Activities that might result in prohibited discharges should use and maintain appropriate BMPs (as approved by the director), and may include but are not limited to the following:

1. Potable water line flushing;

2. Lawn watering with potable water;

3. Dust control with potable water;

4. Automobile and boat washing;

5. Pavement and building washing;

6. Swimming pool and hot tub maintenance;

7. Auto repair and maintenance;

8. Building repair and maintenance;

9. Landscape maintenance;

10. Hazardous waste handling;

11. Solid and food waste handling; and

12. Application of pesticides. (Ord. 2834 § 1, 2010)

13.45.035 Emergency spill control plan.

A. Regulated Businesses. The following parties shall be required to prepare and implement, at their own expense, an emergency spill control plan:

1. Any owners or operators of a facility that is already required by state or federal law to have an emergency spill control plan; and

2. A new or used oil generator. A “new or used oil generator” is any person whose act or process produces used oil. Private resident “do-it-yourselfer” used oil generators are not subject to regulation but are required to properly dispose of all used oil generated.

B. Contents of Emergency Spill Control Plan. An emergency spill control plan is subject to review and approval by the director, and shall contain the following elements:

1. A description of the facility including the owner’s name and address;

2. The nature of the activity at the facility;

3. The types of chemicals used or stored at the facility;

4. A site plan showing the location of storage areas for chemicals, the locations of sewer and storm drains, the areas draining to them, and the location and description of any devices to stop spills from leaving the site such as positive control valves, berms, or absorbent material;

5. Cleanup procedures, materials, and their locations;

6. Notification procedures to be used in the event of a spill, such as notifying key personnel and regulatory agencies. At a minimum, agencies such as the Washington State Department of Ecology, the Lynnwood Fire Department, and the Lynnwood surface water utility shall be notified;

7. The name of the designated responsible person(s) with overall spill cleanup and notification responsibility;

8. Time retention for records.

C. Implementation of Emergency Spill Control Plan.

1. The designated responsible person(s), and any other key personnel, shall be trained in the implementation of the emergency spill control plan.

2. Prepare a summary of the plan and post it at appropriate points in the building, identifying the designated responsible person(s), location of cleanup kits, and phone numbers of regulatory agencies to be contacted in the event of a spill.

3. All employees shall be informed of the location of the emergency spill control plan, and shall know who the designated responsible person(s) is.

4. The emergency spill control plan shall be reviewed and updated if necessary annually.

5. Immediately notify the Washington State Department of Ecology and the Lynnwood surface water utility if a spill may reach sanitary or storm sewers, ground water, or surface water.

6. Immediately clean up spills in accordance with the emergency spill control plan. Absorbent material shall not be washed down a floor drain or storm sewer.

7. Locate emergency spill containment and cleanup kit(s) in high potential spill areas. The contents of the kit shall be appropriate for the type and quantities of chemical liquids stored at the facility.

8. The emergency spill control plan shall be made available to city personnel upon request.

D. Necessary Facility Repairs or Improvements. If, upon evaluation of information obtained by the director, it is determined that repairs or structural improvements are necessary in order to eliminate threats to the surface water system, the director may require the owner or operator to complete such repairs or improvements at their own expense. (Ord. 2834 § 1, 2010)

13.45.040 Discharges not considered illicit.

A. Discharges Not Considered Illicit. The following types of discharges shall not be considered illicit discharges for the purpose of this chapter unless the director determines that the type of discharge, whether singly or in combination with other discharges, is causing significant contamination of surface and stormwater or ground water:

1. Spring water, including spring water with naturally occurring iron oxide bacteria;

2. Diverted stream flows;

3. Uncontaminated water from crawl space pumps, foundation drains or footing drains;

4. Uncontaminated ground water infiltration (as defined at 40 CFR 35.2005(20));

5. Pumped ground water flows that are uncontaminated;

6. Materials placed as part of an approved habitat restoration or bank stabilization project;

7. Natural uncontaminated surface water or ground water;

8. Flows from riparian habitats and wetlands;

9. Collected rainwater that is uncontaminated;

10. Uncontaminated ground water that seeps into or otherwise enters stormwater conveyance systems;

11. Air conditioning condensation;

12. Irrigation water from agricultural sources that is commingled with stormwater runoff;

13. Discharges from emergency fire fighting activities; and

14. Other types of discharges as determined by the director.

B. Dye Testing. Dye testing is allowable on an as-needed basis, but requires verbal notification to the director at least one day prior to the date of test. The Snohomish County health district does not need to provide advance notification.

C. Other Exceptions. A discharge will not be considered illicit if:

1. That responsible person has properly designed, constructed, implemented and is maintaining BMPs, and is carrying out AKART as required by this chapter, but contaminants continue to enter surface and stormwater or ground water; or

2. That responsible person can demonstrate that there are no additional contaminants being discharged from the site above the background conditions of the water entering the site.

3. Emergency response activities or other actions that must be undertaken immediately or within a time too short to allow full compliance with this chapter in order to avoid an imminent threat to public health or safety shall be exempt from this section. The director by public rule may specify actions that qualify for this exception in city procedures. A person undertaking emergency response activities shall take steps to ensure that the discharges resulting from such activities are minimized. In addition, this person shall evaluate BMPs and the site plan, where applicable, to restrict recurrence. (Ord. 2834 § 1, 2010)

13.45.045 Inspection and monitoring of discharges.

A. Access to Facilities.

1. As a condition of service, all persons and premises connected to the municipal storm drainage system shall allow the city to:

a. Enter onto the person’s property at reasonable times after notice, and with the permission of the property owner, to inspect the system and any connection made to the system by the property owner or to install appropriate monitoring equipment. This provision shall not be interpreted to limit the city’s rights under any easement, license or right arising from a public right-of-way.

b. Inspect records of the person relating to discharges to the city system upon request and at reasonable times.

2. Failure to permit entry or inspection may result in the following actions or consequences:

a. The city may at its sole option seek a search warrant from a court of competent jurisdiction.

b. If it is later determined that a violation of this chapter has occurred, the violation shall be assumed to have been occurring from the date of the city’s original request and to have continued until discovered by the city. Each and every day shall be a separate violation. This presumption may be overcome by the presumed violator only by clear and convincing evidence that the violation began at a later date. (Ord. 2834 § 1, 2010)

13.45.050 Notification of spills.

Notwithstanding other requirements of law, as soon as any person responsible for a premises or operation, or responsible for emergency response for a premises or operation, has information of any known or suspected release of materials which are resulting or may result in illicit discharges or pollutants discharging into stormwater, the storm drainage system, or waterbodies, said person shall take all necessary steps to ensure the discovery, containment, and cleanup of such release. In the event of such a release, said person shall immediately notify:

A. Emergency response agencies (if necessary) of the occurrence via emergency dispatch services; and

B. The city’s illicit discharge hotline. (Ord. 2834 § 1, 2010)

13.45.055 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. 2834 § 1, 2010)

13.45.060 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. 2834 § 1, 2010)

13.45.065 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. 2834 § 1, 2010)

13.45.070 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. 2834 § 1, 2010)

13.45.075 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. 2834 § 1, 2010)