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Ordinance 2013-12ORDINANCE NO. 2013 -12 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY REPEALING CHAPTER 27D OF THE GILROY CITY CODE IN ITS ENTIRETY AND REPLACING IT WITH A NEW CHAPTER 27D ENTITLED "POST CONSTRUCTION STORM WATER POLLUTION PREVENTION" WHEREAS, the City of Gilroy adopted a Regional Storm Water Management Plan with Morgan Hill and Santa Clara County to protect the municipal storm drain system and storm drainage outlets, creeks and rivers from pollutants; and WHEREAS, the Central Coast Regional Water Quality Control Board has accepted the Regional Storm Water Management Plan; and WHEREAS, the Central Coast Regional Water Quality Control Board has issued the City of Gilroy a National Pollutant Discharge Elimination System Small Municipal Separate Storm Water Sewer Systems General Permit; and WHEREAS, an Ordinance was adopted to provide the authority to implement the Regional Storm Water Management Plan's Municipal Discharge Control and Protection programs and to prevent pollution from development projects with a Post Construction Pollution Prevention program. WHEREAS, the adoption of this Ordinance is exempt from review under the California Environmental Quality Act (CEQA) as an action taken by a regulatory agency to protect the environment pursuant to CEQA Guidelines Section 15308. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY ORDAIN AS FOLLOWS: Chapter 27D entitled "Post Construction Pollution Prevention" is hereby deleted in its entirety and is hereby replaced to read as follows: Chapter 27D - POST CONSTRUCTION STORM WATER POLLUTION PREVENTION Sections: 27D.1 -Purpose and intent. 27D.2- Definitions. 27D.3 - Applicability: Permanent storm water pollution prevention measures required. 27DA - Design standards and selection of best management practices. 1 IJHk861903.1 ORDINANCE NO. 2013-12 102711-04706083 27D.5 - Storm Water runoff management plan required. 27D.6 - Storm Water runoff management plan contents. 27D.7 - Preparation of the Storm Water runoff management plan. 27D.8 - Storm Water BMP operation, maintenance, and replacement responsibility. 27D.9 - Storm Water BMP operation and maintenance agreement. 27D.10 - Storm Water BMP inspection responsibility. 27D.11 - Records of maintenance and inspection activities. 27D.12 - Failure to maintain. 27D.13 - Authority to inspect. 27D.14 - Notice of violation. 27D.15 - Appeal. 27D.16 - Abatement by city. 27D. 17 - Charging cost of abatement. 27D.18 - Urgency abatement. 27D.19 - Violations. 27D.20 - Compensatory action. 27D.21 - Violations deemed a public nuisance. 27D.22 - Acts potentially resulting in a violation of the Federal Clean Water Act and/or California Porter - Cologne Act. 27D.23 - Fees set by resolution. 27D.1- Purpose and intent. The purpose of this chapter is to establish minimum storm water management requirements and controls to protect and safeguard the general health, safety, and welfare of the public residing in watersheds in compliance with applicable provisions of the Federal Clean Water Act and any National Pollutant Discharge Elimination System (NPDES) Storm Water Discharge Permits issued to the City of Gilroy, through the following objectives: A. Minimize increases in Storm Water runoff from any development in order to reduce flooding, siltation and stream bank erosion and maintain the integrity of stream channels; B. Minimize increases in nonpoint source pollution caused by Storm Water runoff from development which would otherwise degrade local water quality C. Minimize the total annual volume of surface water runoff which flows from any specific site during and following development to not exceed the pre - development hydrologic regime to the maximum extent practicable. D. Reduce storm water runoff rates and volumes, soil erosion and nonpoint source pollution, wherever possible, through storm water management controls and to ensure that these management controls are properly maintained and pose no threat to public safety. The above objectives shall be met through adoption and implementation of best management practices (BMPs) in design, construction and maintenance. These BMPs shall be incorporated into permanent site design features, which shall remain functioning throughout the life of the development. 2 WH1861903.1 ORDINANCE NO. 2013-12 102711- 04706083 27D.2 - Definitions. The terms used in this chapter shall have the following meanings: A. "Authorized enforcement officer" means the City of Gilroy City Engineer and those individuals designated by the city engineer to enforce the provisions of this chapter, including the code enforcement officer(s) of the City of Gilroy's Community Development Department. B. "Best management practices" or "BMP" means activities, practices, and procedures as specified in Section 27D.4 to prevent or reduce the discharge of pollutants directly or indirectly to the municipal storm drain system and waters of the United States. Best management practices (BMPs) include but are not limited to: treatment facilities and methods to'remove pollutants from storm water; operating and maintenance procedures; facility management practices to control runoff, spillage or leaks of non -storm water, waste disposal, and drainage from materials storage; erosion and sediment control practices; and the prohibition of specific activities, practices, and procedures and such other provisions as the city determines appropriate for the control of pollutants. C. "Clean Water Act" means the federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), and any subsequent amendments thereto. D. "Development" means land disturbing activities; structural development, including construction or installation of a building or structure, creation of impervious surfaces; and improvements related to land subdivision; any activity that moves soils or substantially alters the pre- existing vegetated or man-made cover of any land. This includes, but is not limited to, grading, digging, cutting, scraping, stockpiling or excavating of soil, placement of fill materials, paving, pavement removal, exterior construction, substantial removal of vegetation where soils are disturbed including but not limited to removal by clearing or grubbing, or any activity which bares soil or rock or involves streambed alterations or the diversion or piping of any watercourse. Development does not include routine maintenance to maintain original line and grade, hydraulic capacity, or the original purpose of the facility, nor does it include emergency construction activities (i.e., land disturbances) required to protect public health and safety. E. "Enforcement officer" means the city engineer and his or her designee, including authorized enforcement officer. F. "Hillside" means property located in an area with known erosive soil conditions, where the development contemplates grading on any natural slope that is twenty - five percent or greater. G. "Impervious surface" means a surface composed of any material that significantly impedes or prevents the natural infiltration of water into soil. Impervious surfaces include, but are not limited to, rooftops, buildings, streets and roads, and any concrete or asphalt surface. H. "Industrial General Permit" means a NPDES permit issued by the state water resources control board for the discharge of storm water associated with industrial activity. I. "National Pollutant Discharge Elimination System ( NPDES) Storm Water Discharge Permits" means general, group, and individual storm water discharge 3 UH1861903.1 ORDINANCE NO. 2013 -12 102711-04706083 permits which regulate facilities defined in federal NPDES regulations pursuant to the Clean Water Act. The California Regional Water Quality Control Board, Central Coast Region (hereinafter, Regional Board) and the State Water Resources Control Board have adopted general storm water discharge permits, including but not limited to the general construction activity, general industrial activity, and operation of municipal separate storm water sewer systems.. J. "Operation and maintenance agreement" means a written agreement entered into pursuant to Section 27D.9, providing for the long -term operation and maintenance of storm water management facilities and practices on a site or with respect to a land development project, which when properly recorded in the deed records constitutes a restriction on the title to a site or other land involved in a land development project. K. "Owner" means the legal or beneficial owner of a site, including but not limited to, a mortgagee or vendee in possession, receiver, executor, trustee, lessee or other person, firm or corporation in control of the site. L. "Pre- project" means Storm Water runoff conditions that exist on -site immediately before development activities occur. This definition is not intended to be interpreted as that period before any human- induced land activities occurred. This definition pertains to redevelopment as well as initial development. M. "Receiving waters" means any natural stream, river, creek, ditch, channel, canal, waterway, gully, ravine or wash, in and including any adjacent area that is subject to inundation from overflow or flood water. N. "Redevelopment" means, on an already developed site, the construction or installation of a building or other structure subject to Planning or Building approval including: 1) creation or addition of impervious surfaces; 2) the expansion of a building footprint or addition or replacement of a structure; or 3) structural development including construction, installation, or expansion of a building or other structure. It does not include routine road maintenance, nor does it include emergency construction activities required to immediately protect public health and safety. O. "Site" means any tract, lot or parcel of land or combination of tracts, lots, or parcels of land, which are in one ownership, or are contiguous and in diverse ownership where a development is to be performed as part of a unit, subdivision, or project. P. "Storm drain" means any pipe, conduit or sewer of the city designed or used for the disposal of storm and surface waters and drainage including unpolluted cooling water and unpolluted industrial process water, but excluding any community sanitary sewer system. Q. "Storm Water Management Guidance Manual for Low Impact Development and Post - Construction Requirements" means a guidance manual approved by the city engineer, which specifies the requirements for new development to demonstrate compliance with low impact and post - construction requirements adopted by the Central Coast Regional Quality Control Board, as amended from time to time. R. "Storm water management" means the collection, conveyance, storage, treatment and disposal of storm water runoff to enhance and promote the public health, safety and general welfare. 4 UH1861903.1 ORDINANCE NO. 2013 -12 102711-04706083 S. "Storm Water Control Plan" means a document defined in the Storm Water Management Guidance Manual for Low Impact Development and Post - Construction Requirements, describing how existing runoff characteristics will be affected by a land development project and containing measures for complying with the provisions of this ordinance. T. "Storm water runoff' means water from rain that flows over the land surface without entering the soil. U. "Treatment control BMP" means any engineered system designed to remove pollutants by simple gravity settling of particulate pollutants, filtration, biological uptake, media adsorption or any other physical, biological, or chemical process. V. "Watercourse" means any natural or artificial stream, river, creek, ditch, channel, canal, conduit, culvert, drain, waterway, gully, ravine or wash, in and including any adjacent area that is subject to inundation from overflow or flood water. W. "Water quality impact" means any deleterious effect on waters or wetlands, including their quality, quantity, surface area, species composition, aesthetics or usefulness for human or natural uses that are or may potentially be harmful or injurious to human health, welfare, safety or property, to biological productivity, diversity, or stability or which unreasonably interfere with the enjoyment of life or property, including outdoor recreation. 27D.3 - Applicability: Permanent storm water pollution prevention measures required. A. The provisions of this chapter shall apply to development or redevelopment of projects as defined in the Storm Water Management Guidance Manual for Low Impact Development and Post - Construction Requirements, available at the City of Gilroy, Public Works Department. B. No final building or occupancy permit shall be issued without the written certification of the city engineer or designee that the requirements of this chapter have been satisfied. 27DA - Design standards and selection of best management practices. Projects meeting the criteria of Section 27D.3A, must meet the requirements of the design standards and selection of best management practices and shall be selected and designed to the satisfaction of the city engineer or designee in accordance with the requirements contained in the most recent version of the California Storm Water Quality Association Best Management Practice Handbooks which may be found at California Storm Water Quality Association web site at: http:// www. casga. ory/ LeftNavigation /ConstructionBMPHandbookPortal S WPPPTemplate /tabid/ 200 /Default.aspx or an alternative standard approved by the city engineer. A. Other references which can be used for selection of design BMPs to the satisfaction of the city engineer or designee are: 5 WH1861903.1 ORDINANCE NO. 2013 -12 102711 - 04706083 1. Santa Clara Valley Urban Runoff Pollution Prevention Program (SCVURPPP) "Guidance for Implementing Storm water Regulations for New and Redevelopment Projects "; 2. "Start at the Source Design Guidance Manual developed by the Bay Area Storm Water Management Agencies Association (BASMAA); 3. Bay Area Storm Water Management Agencies Association "Using Site Design Standards to Meet Development Standards for Storm water Quality - A Companion Document to Start at the Source ". 27D.5 - Storm Water Control Plan required. Projects meeting the criteria of Section 27D.3A must provide a storm water control plan. The storm water control plan shall detail how runoff and associated water quality impacts resulting from the activity will be controlled or managed by the project's post construction BMP designs. No building permit shall be issued until the storm water runoff management plan has been reviewed and approved by the city engineer or designee. 27D.6 - Storm Water Control Plan contents. The storm water runoff management plan shall include sufficient information to evaluate the environmental characteristics of affected areas, the potential impacts of the proposed development on water resources, and the effectiveness and acceptability of measures proposed for managing storm water runoff. The minimum information submitted for support of the storm water management plan shall meet the requirements as defined in the Storm Water Management Guidance Manual for Low Impact Development and Post - Construction Requirements. 27D.7 - Preparation of the Storm Water Control Plan. A. The storm water control plan shall be prepared under the direction of a professional civil engineer registered in the State of California. The responsible professional civil engineer shall stamp and sign the approved storm water control plan. B. The city engineer or designee may require a developer to provide a signed certification from the civil engineer responsible for preparing the storm water control plan that all storm water best management practices have been designed to meet the requirements of this chapter. C. Each certifying civil engineer shall establish to the city's satisfaction that such person has been trained on the design of storm water quality best management practices not more than three years prior to the certification signature date. D. Qualifying training shall be conducted by an organization with storm water quality management expertise, such as a university, the Bay Area Storm water Management Agencies Association, the American Society of Civil Engineers, the American Public Works Association, or the California Water Environment Association. 27D.8 - Storm water BMP operation, maintenance, and replacement responsibility. 6 WH1861903.1 ORDINANCE NO. 2013-12 102711 - 04706083 A. For the life of projects meeting the criteria of Section 27D.3A, all on -site storm water management facilities shall be operated and maintained in good condition and promptly repaired/replaced by the property owner(s), an owners' or homeowners' association or other legal entity approved by the city. B. Any repairs or restoration/replacement and maintenance shall be in accordance with city - approved plans. C. The property owner(s) shall develop a maintenance schedule for the life of any storm water management facility and shall describe the maintenance to be completed, the time period for completion, and who shall perform the maintenance. This maintenance schedule shall be included with the approved storm water runoff management plan. 27D.9 - Storm water BMP operation and maintenance agreement. A. Prior to the issuance of any building permit requiring storm water management BMPs, the owner(s) of the site shall enter into a formal written storm water BMP operation and maintenance agreement with the city. The city shall record this agreement, against the property or properties involved, with the County of Santa Clara and it shall be binding on all subsequent owners of land served by the storm water management treatment BMPs. B. The storm water BMP operation and maintenance agreement shall require that the BMPs not be modified and that BMP maintenance activities not alter the designed function of the facility from its original design unless approved by the city prior to the commencement of the proposed modification or maintenance activity. C. The storm water BMP operation and maintenance agreement shall provide that in the event that maintenance or repair is neglected, or the storm water management facility becomes a danger to public health or safety, the city shall have the authority to perform maintenance and/or repair work and to recover the costs from the owner. 27D.10 - Storm water BMP inspection responsibility. A. The property owner(s) shall be responsible for having all storm water management facilities inspected for condition and function by a certified Qualified Stormwater Practitioner (QSP). B. Unless otherwise required by the city engineer or designee, storm water facility inspections shall be done at least twice per year, once in fall, in preparation for the wet season, and once in winter. Written records shall be kept of all inspections and shall include, at minimum, the following information: 1. Site address; 2. Date and time of inspection; 3. Name of the person conducting the inspection; 4. List of storm water facilities inspected; 5. Condition of each storm water facility inspected; 6. Description of any needed maintenance or repairs; and 7. As applicable, the need for site re- inspection. 27D.11- Records of maintenance and inspection activities. On or before April 15th of each year, the party responsible for the operation and maintenance of on -site storm water management facilities under the BMP operation and 7 1JH1861903.1 ORDINANCE NO. 2013-12 102711-04706083 maintenance agreement shall provide the city engineer or designee with records of all inspections, maintenance and repairs. 27D.12 - Failure to maintain. A. If the responsible party fails or refuses to meet the requirements of the storm water BMP operation and maintenance agreement, the authorized enforcement officer may give a thirty- day written notice to such responsible party under BMP operation and maintenance agreement to correct the failure and breach of contractual obligation. B. If such responsible party fails to correct such conditions, the city may take such remedies such provided in the BMP operation and maintenance agreement. Additionally, such conditions shall be deemed a nuisance subject to all procedures, abatement of such conditions and remedies as provided in Chapter 5B of this code. C. In the event the city determines that the violation constitutes an immediate danger to public health or public safety, twenty -four hours written notice from the city shall be sufficient in lieu of the thirty -day written notice required under Section 27D. 12A. 27D.13 - Authority to inspect. Whenever necessary to make an inspection to enforce any provision of this chapter, or whenever the authorized enforcement officer has cause to believe that there exists, or potentially exists, in or upon any premises any condition which constitutes a violation of this chapter, the authorized enforcement officer may enter such premises at all reasonable times to inspect the same and to inspect and copy records related to storm water compliance provided that (i) if such building or premises be occupied, he or she shall first present proper credentials and request entry; and (ii) if such building or premises be unoccupied, he or she shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and request entry. In the event the owner or occupant refuses entry after a request to enter and inspect has been made, the city is hereby empowered to seek assistance from any court of competent jurisdiction in obtaining such entry. In any circumstance where there appears an immediate threat to the public health or safety, the authorized enforcement officer may enter any structure or premises without the consent of any person or court process. Routine or area inspections shall be based upon such reasonable selection processes as may be deemed necessary to carry out the objectives of this chapter, including but not limited to random sampling and/or sampling in areas with evidence of storm water contamination, illicit discharges, discharges of non -storm water to the storm water system, or similar factors. The city shall have the right to establish on any property such devices as are necessary to conduct sampling or metering operations. During any inspection as provided herein, the authorized enforcement officer may take any samples and perform any testing deemed necessary to aid in the pursuit of the inquiry or to record site activities. 27D.14 - Notice of violation. 8 UH1861903.1 ORDINANCE NO. 2013-12 102711-04706083 Whenever the authorized enforcement officer finds that a person has violated a prohibition or failed to meet a requirement of this chapter, the authorized enforcement officer may order compliance by written notice of violation to the responsible person. Such notice may require without limitation: A. The performance of monitoring, analyses, and reporting; B. The elimination of illicit connections or discharges; C. That violating discharges, practices, or operations shall cease and desist; D. The abatement or remediation of storm water pollution or contamination hazards and the restoration of any affected property; E. Payment of a fine to cover administrative and remediation costs; and F. The implementation of BMP, source control or treatment BMPs; G. Compliance with the storm water runoff management plan and the BMP operation and maintenance agreement. If abatement of a violation and/or restoration of affected property is required, the notice shall set forth a deadline within which such remediation or restoration must be completed. Said notice shall further advise that, should the violator fail to remediate or restore within the established deadline, the work will be done by the city or a contractor designated by the authorized enforcement officer and the expense thereof shall be charged to the violator pursuant to Section 27D.23. 27D.15 - Appeal. Any person receiving a notice of violation under Section 27D.14, above may appeal the determination of the authorized enforcement officer to the City Administrator. The notice of appeal must be received by the City Administrator within five business days from the date of the notice of violation. Hearing on the appeal before the City Administrator or his/her designee shall take place within fifteen days from the date of city's receipt of the notice of appeal. The decision of the City Administrator or designee shall be final. 27D.16 - Abatement by city. If the violation has not been corrected pursuant to the requirements set forth in the notice of violation, or, in the event of an appeal under Section 27D.15, within ten days of the decision of the City Administrator upholding the decision of the authorized enforcement officer, then the city or a contractor designated by the authorized enforcement officer may enter upon the subject private property and is authorized to take any and all measures necessary to abate the violation and/or restore the property. 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. 27D.17 - Charging cost of abatement. Within 30 calendar days after abatement of the nuisance by city, the authorized enforcement officer shall notify the property owner of the property of the cost of abatement, including administrative costs. The property owner may file a written protest objecting to the 9 UH1861903.1 ORDINANCE NO. 2013-12 102711-04706083 amount of the assessment with the city clerk within fifteen business days. The city clerk shall set the matter for public hearing by the city council at its earliest available date. The decision of the city council shall be set forth by resolution and shall be final. 27D.18 - Urgency abatement. The authorized enforcement officer is authorized to require immediate abatement of any violation of this chapter that constitutes an immediate threat to the health, safety or welfare of the public. If any such violation is not abated immediately as directed by the authorized enforcement officer, the city is authorized to enter onto private property and to take any and all measures required to remediate the violation. Any expense related to such remediation undertaken by the city shall be fully reimbursed by the property owner and/or responsible party. Any relief obtained under this section shall not prevent city from seeking other and further relief authorized under this chapter. 27D.19 - Violations. It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this chapter. A violation of or failure to comply with any of the requirements of this chapter shall constitute a misdemeanor. 27D.20 - Compensatory action. In lieu of enforcement proceedings, penalties, and remedies authorized by this chapter, the authorized enforcement officer may impose upon a violator, alternative compensatory actions, including but not limited to storm drain stenciling, attendance at compliance workshops, creek cleanup. 27D.21 - Violations deemed a public nuisance. In addition to the enforcement processes and penalties hereinbefore provided, any condition caused or permitted to exist in violation of any of the provisions of this chapter is a threat to public health, safety, and welfare, and is declared and deemed a nuisance, and may be summarily abated or restored by the city at the violator's expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be taken by the city pursuant to Chapter 5B of this code. 27D.22 - Acts potentially resulting in a violation of the Federal Clean Water Act and/or California Porter- Cologne Act. Any person who violates any provision of this chapter or any provision of any requirement issued pursuant to this chapter may also be in violation of the Clean Water Act and/or the Porter - Cologne Act and may be subject to the sanctions of those acts including civil and criminal penalties. Any enforcement action authorized under this chapter shall also include written notice to the violator of such potential liability. 27D.23 - Fees set by resolution. 10 UH1861903.1 ORDINANCE NO. 2013-12 102711-04706083 The city council shall establish, by resolution, any fees necessary to carry out the purpose of this chapter. SECTION III If any section, subsection, subdivision, sentence, clause, phrase or word of this Ordinance is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed and adopted this Ordinance, and each and all provisions hereof, irrespective of the fact that one or more provision may be declared invalid or unconstitutional. SECTION IV This Ordinance shall be in full force and effect thirty (30) days after its passage and adoption. vote: PASSED AND ADOPTED this 18th day of November, 2013, by the following roll call AYES: COUNCILMEMBERS: ARELLANO, AULMAN, LEROE- MUNOZ, TUCKER, WOODWARD and GAGE NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: BRACCO ATTEST: Freels, City 11 APPROVED: ,a JJ Donald Gage, Mayor 1JH1861903.1 ORDINANCE NO. 2013-12 102711 - 04706083 I, SHAWNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 2013 -12 is an original ordinance, or true and correct copy of a City ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 18'' day of November, 2013, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 20'h day of November, 2013. awna Freels, MMC City Clerk of the City of Gilroy (Seal)