ORDINANCE NO. 308

AN ORDINANCE OF THE TOWN OF SOUTH PRAIRIE, PIERCE COUNTY, WASHINGTON ADOPTING THE MODEL ORDINANCE PROMULGATED BY THE WASHINGTON STATE DEPARTMENT OF ECOLOGY FOR STORMWATER MAINTENANCE TO COMPLY WITH THE BASIC PROGRAM REQUIRED FOR THE 1995 PUGET SOUND WATER QUALITY MANAGEMENT PLAN.

Whereas, stormwater maintenance is necessary to reduce flooding, erosion control, and to provide quality control over stormwater entering into the ground water and surface water system, and

Whereas, the Washington State Department of Ecology has requested compliance with the basic program required by the 1995 Puget Sound Water Quality Management Plan, and

Whereas, the town desires to comply with requests of the Washington State Department of Ecology.

Now, therefore, the Town Council of the Town of South Prairie, Pierce County, Washington do ordain as follows:

Section 1: The town hereby adopts the Washington State Department of Ecology Model Stormwater Maintenance Ordinance, which is attached hereto and incorporated by reference as Exhibit "1", together with the Stormwater Management Manual for the Puget Sound Basin which was adopted by resolution.

Section 2: If any provision of this ordinance, the Model Stormwater Maintenance Ordinance attached as Exhibit "1", or the Stormwater Management Manual for the Puget Sound Basin, which was adopted by resolution is determined to be invalid or unenforceable

the remaining provisions of this ordinance and/or the Model Stormwater Maintenance Ordinance and/or the Stormwater Management Manual for the Puget Sound Basin shall be in full force and affect.

Section 3: This ordinance shall take effect and be in force five (5) days from and after its passage, approval and publication as required by law.

___________________

Attested:

INTRODUCED:          4/4/95

PASSED:                     4/4/95

APPROVED:               4/4/95

PUBLISHED:              4/12/95

Attested:

__________________

Cindi Bright

Town Clerk

Approved as to Form:

________________

Michael J Reynolds

Town Attorney

MODEL STORMWATER MAINTENANCE ORDINANCE
CONTENTS

Section 1: Findings Of Fact, Need And Purpose .................................................................................... 1

Section 2: Definitions ........................................................................................................................... 1

Section 3: General Provisions ............................................................................................................... 2

Section 4: Applicability ......................................................................................................................... 2

Section 5: General Requirements .......................................................................................................... 3

..............................................................................

Section 6: Administration ...................................................................................................................... 4

Section 7: Inspection Program ................................................................................................................

Section 8: Enforcement ........................................................................................................................ 5

Section 9: Severability .......................................................................................................................... 7

INTRODUCTION

The following model stormwater maintenance ordinance should be viewed as guidance; it is to be used as a model only. To satisfy Puget Sound Stormwater Program requirements, local governments may choose to use this model in any of the following ways:

n Adopt the model ordinance in its entirety.

n Adopt minimum requirements contained in the model ordinance, with revisions to other sections of the ordinance.

n Use as a guide for incorporating Ecology's minimum requirements into existing ordinances and policies.

Please note that however you choose to use this model ordinance, Ecology's minimum requirements must be met in order for local governments to satisfy requirements under the Puget Sound Stormwater Program.

MODEL STORMWATER MANAGEMENT ORDINANCE

SECTION 1: FINDINGS OF FACT, NEED AND PURPOSE

I.1 Findings of fact. The [City/County Council/Board of County Commissioners] of the [City/County] hereby finds that:

Stormwater facilities are a common feature of urban development;

In order to function properly so that they will perform as designed to prevent or remove pollution and/or to reduce flooding, stormwater facilities must be regularly inspected and maintained;

If not adequately maintained. stormwater facilities can become sources of pollutants to surface water and groundwater; and

If not adequately maintained, stormwater facilities could fail and cause considerable damage to the public.

1.2 Need. The [City/County Council/Board of County Commissioners] finds that this Chapter is necessary in order to ensure maintenance of all stormwater facilities within the [City/County] by setting minimum standards for the inspection and maintenance of stormwater facilities.

1.3 Purpose. The provisions of this Chapter are intended to:

Provide for inspection and maintenance of stormwater facilities in [City/County] to provide for an effective, functional stormwater drainage system;

Authorize the [designated department of City/County] to require that stormwater facilities be operated, maintained and repaired in conformance with this Chapter; and

Establish the minimum level of compliance which must be met.

Guide and advise all who conduct inspection and maintenance of stormwater facilities.

SECTION 2: DEFINITIONS

For the purposes of this Chapter, the following definitions shall apply:

2.1. Best Management Practices. "Best Management Practice" or "BMP" means physical, structural, and/or managerial practices that, when used singly or in combination, prevent or reduce pollution of water, and have been approved by Ecology. BMPs are listed and described in the Manual.

2.2. Person. "Person" means any individual, partnership, corporation, association, organization, cooperative, public or Municipal Corporation, agency of the state, or local government unit, however designated.

2.3. Interflow. "Interflow" means that portion of precipitation that infiltrates into the soil and moves laterally through the upper soil horizons until intercepted by a stream channel or until it returns to the surface for example, in a wetland, spring or seep.

2.4. Stormwater. "Stormwater" means that portion of precipitation that does not naturally percolate into the ground or evaporate, but flows via overland flow, interflow, channels or pipes into a defined surface water channel, or a constructed infiltration facility.

2.5. Stormwater Drainage System. "Stormwater drainage system" means constructed and natural features which function together as a system to collect, convey, channel, hold, inhibit, retain, detain, infiltrate, divert, treat or filter stormwater.

2.6. Stormwater Facility. "Stormwater facility" means a constructed component of a stormwater drainage system, designed or constructed to perform a particular function, or multiple functions. Stormwater facilities include, but are not limited to, pipes, swales, ditches, culverts, street gutters, detention basins, retention basins, constructed wetlands, infiltration devices, catchbasins, oil/water separators, sediment basins and modular pavement.

2.7. Stormwater Management Manual. "Stormwater Management Manual" or "Manual" means the Manual adopted by reference and prepared by Ecology that contains BMPs to prevent or reduce pollution [or a technically equivalent Manual approved by Ecology].

SECTION 3: GENERAL PROVISIONS

3.1 Abrogation and greater restrictions. It is not intended that this Chapter repeal, abrogate, or impair any existing regulations, easements, covenants, or deed restrictions. However, where this Chapter imposes greater restrictions, the provisions of this Chapter shall prevail.

3.2 Interpretation. The provisions of this Chapter shall be held to be minimum requirements in their interpretation and application and shall be liberally construed to serve the purposes of this Chapter.

SECTION 4: APPLICABILITY

4.1. More Strict Prevails. When any provision of any other chapter of the [City County] conflicts with this Chapter, that which provides more environmental protection shall apply unless specifically provided otherwise in this Chapter.

4.2. Written Procedures. The Director is authorized to adopt written procedures for the purpose of carrying out the provisions of this Chapter.

SECTION 5: GENERAL REQUIREMENTS

5.1 Maintenance Required. All stormwater facilities shall be maintained in accordance with this Chapter and the Stormwater Management Manual. Systematic, routine preventive maintenance is preferred.

5.2 Minimum standards. The following are the minimum standards for the maintenance of stormwater facilities:

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

B. Where lack of maintenance is causing or contributing to a water quality problem, immediate action shall be taken to correct the problem. Within 1 month, the Director shall revisit the facility to assure that it is being maintained.

5.3 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 stormwater maintenance activities, and where appropriate, the Dangerous Waste Regulations, Chapter 173-303 WAC.

5.4 Compliance. Property owners are responsible for the maintenance, operation or repair of stormwater drainage system and BMPs. Property owners shall maintain, operate and repair these facilities in compliance with the requirements of this Chapter and the Stormwater Management Manual.

SECTION 6: ADMINISTRATION

6.1 Director. The Director of the Department of [__________ ] or a designee/inspector shall administer this Chapter and shall be referred to as the director. The Director shall have the authority to develop and implement administrative procedures to administer and enforce this Chapter.

6.2 Inspection Authority. The Director is directed and authorized to develop an inspection program for stormwater facilities in the [City/County].

6.3 Enforcement Authority. The Director shall enforce this Chapter. SECTION 7: INSPECTION PROGRAM

7.1 Inspection. Whenever implementing the provisions of the inspection program or whenever there is cause to believe that a violation of this Chapter has been or is being committed, the Director is authorized to inspect during regular working hours and at other reasonable times all stormwater drainage systems within the [City/County] to determine compliance with the provisions of this Chapter.

7.2 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 person(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 person(s) having charge or control of the property, and has reason to believe the condition of the stormwater drainage system creates an imminent hazard to persons or property, the inspector may enter.

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

D. The Director may inspect the stormwater drainage system without obtaining a search warrant provided for in Subsection C above, provided the inspection can be conducted while remaining on public property or other property on which permission to enter is obtained.

7.3 Inspection Schedule. The Director shall establish a master inspection and maintenance schedule to inspect appropriate stormwater facilities that are not owned by the [local unit of government]. Inspections shall be annual. Critical stormwater facilities may require a more frequent inspection schedule.

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

A. As-built plans and locations;

B. Findings of fact from any exemption granted by the local government;

C. Operation and maintenance requirements and records of inspections, maintenance actions and frequencies; and

D. Engineering reports, as appropriate.

7.5 Reporting Requirements. The Director shall report annually to the [legislative body] about the status of the inspections. The annual report may include, but need not be limited to, the proportion of the components found in and out of compliance, the need to upgrade components, enforcement actions taken, compliance with the inspection schedule, the resources needed to comply with the schedule, and comparisons with previous years.

SECTION 8: ENFORCEMENT

8.1 General. Enforcement action shall be taken whenever a person has violated any provision of this Chapter. The choice of enforcement action taken and the severity of any penalty shall be based on the nature of the violation, the damage or risk to the public or to public resources, and/or the degree of bad faith of the persons subject to the enforcement action.

8.2 Orders. The Director shall have the authority to issue to an owner or person an order to maintain or repair a component of a stormwater facility or BMP to bring it in compliance with this Chapter, the Stormwater Manual and/or [City/County] regulations. 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.

8.3 Civil penalty. A person who fails to comply with the requirements of this Chapter or who fails to conform to the terms of an approval or order issued shall be subject to a civil penalty.

A. Amount of Penalty. The penalty shall not be less than $_ or exceed $_____ for each violation. Each day of continued violation or repeated violation shall constitute a separate violation.

B. Aiding or Abetting. Any person who, through an act of commission or omission, aids or abets in the violation shall be considered to have committed a violation for the purposes of the civil penalty.

C. Notice of Penalty. A civil penalty shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the same from the local government. The notice shall describe the violation, the date(s) of violation, and shall order the acts constituting the violation to cease and desist, and, in appropriate cases, require necessary corrective action within a specific time.

D. Application for Remission or Mitigation. Any person incurring a penalty may apply in writing within 10 days of receipt of the penalty to the city/county for remission or mitigation of such penalty. Upon receipt of the application, the [appropriate body] may remit or mitigate the penalty only upon a demonstration of extraordinary circumstances, such as the presence of information or factors not considered in setting the original penalty. The [appropriate body's] decision may be appealed to the [appropriate body] within days of the decision.

E. Appeal of Civil Penalty. Persons incurring a penalty imposed by the director may appeal in writing within _ days of the receipt of the penalty to the [appropriate body]. The [appropriate

body^'s] decision may be appealed to the [appropriate body] within_____ days of the decision.'

8.4 Penalties Due. Penalties imposed under this Section shall become due and payable____ ³days after
receiving notice of penalty unless application for remission or mitigation is made or an appeal is filed. Whenever an application for remission or mitigation is made, penalties shall become due and payable — days after receipt of the decision regarding the remission or payable after all review proceedings and a final decision has been issued confirming all or part of the penalty. If the amount of a penalty owed is not paid within the time specified in this Section, the [City/County]may take actions necessary to recover such penalty.

The minimum and maximum fine should be the amount allowed by the local government's enabling legislation.

2 Consideration may be given to adding a sentence allowing a person a given number of days after the city/county's appeal process is exhausted to appeal to superior court to seek relief from the city/county's appeal process.

Thirty days is a common time period.