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Storm Water Regulation in New Mexico: New Storm Water Quality Ordinance

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July 12, 2018
Author: Kathy Verhage
Organization: City of Albuquerque


STORM WATER DISCHARGES

DIVISION 1.
IN GENERAL

Whereas the Clean Water Act was enacted by Congress in 1972; and

Whereas the City has been subject to stormwater regulation through its Municipal

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Separate Stormwater System (MS4) permit since 2003; and

Whereas the City was issued a new MS4 Permit in 2012 that increased regulatory requirements; and

Whereas enhanced water quality in the Rio Grande is a community value; and

Whereas enacting this Storm Water Quality Ordinance will further compliance with the unfunded federal mandate and will reduce stormwater contaminants; and

Whereas this ordinance is a significant step toward addressing the issues with the existing developed environment related to Stormwater;

Be it therefore Ordained:

Sec. 1. Definitions.

As used in this article, the following terms shall have the meanings ascribed in this section unless the context of their usage clearly indicates another meaning: Discharge shall mean the introduction or addition of any pollutant, stormwater, or other substance into the MS4, or to allow, permit, or suffer any such introduction or addition that is not specifically allowed by the City of Albuquerque’s current MS4 permit.

Discharger shall mean a person who allows, causes, permits, suffers, or threatens to cause a discharge.

Illicit Discharge means any discharge to the MS4 that is not composed entirely of stormwater except discharges pursuant to a NPDES permit or those allowed in Section 10(b).

MS4 or Municipal separate storm sewer system shall mean the system of conveyances owned or operated by the City or any co-permittee of the City that is designed or used for collecting, retention, storage, or_conveying storm water.

Non-structural control shall mean a maintenance or operational practice designed to prevent, reduce, or mitigate the potential of storm water runoff contact with pollution-causing activities.

NPDES shall mean National Pollutant Discharge Elimination System.

NPDES permit shall mean a permit issued by the EPA under Title 33 of the United States Code that authorizes the discharge of pollutants to waters of the United States, whether the permit is applicable on an individual, group, or general basis.

Parcel shall mean a contiguous piece of land that is under common ownership or control or that is part of a larger common plan of development or sale.

Person shall mean an individual, corporation, organization, governmental entity, business trust, partnership, association, or other legal entity, or an agent or an employee thereof.

Point Source means any discernible and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural Stormwater runoff.

Pollutant shall mean, but shall not be limited to, dredged soil, solid waste, incinerator residue, sewage, garbage, sewage sludge, filter backwash, munitions, chemical wastes, biological materials, radioactive materials,wrecked or discarded equipment,rock, sand, dirt soil, and other material, or any combination thereof, discharged into the MS4 or any waters of the United States.

Pollution shall mean the alteration of the physical,chemical, or biological quality of, or the contamination of, any waters of the United States that renders the water harmful, detrimental or injurious to humans, animal life, vegetation, or property or to public health, safety, or welfare, or otherwise impairs the quality of the water.

Stormwater means stormwater runoff, snow melt runoff, and surface runoff and drainage.

Stormwater Discharge Associated with Industrial Activity means the discharge from any conveyance which is used for collecting and conveying stormwater and which is directly related to manufacturing, processing, or raw materials storage areas at an industrial plant (See 40 CFR 122.26(b)(14) for specifics of this definition).

Stormwater Engineer means the individual who is responsible for enforcement of this ordinance as designated by the Director of the Department of Municipal Development.

Stormwater Quality Permit for Sediment and Erosion Control. The permit issued pursuant to the Drainage Control Ordinance or this ordinance (SWQ).

Structure shall mean that which is built or constructed, an edifice or building of any kind, or any piece of work, including, but not limited to, a paved surface, that is artificially built up or composed of parts joined together in some definite manner. The term does not include a street, a channel, or a public utility.

Structural Control, any structure built and maintained to prevent, reduce, or mitigate the potential of stormwater runoff contact with pollution-causing activities.

Sec. 2. General requirements.

(a) The land owner shall be responsible for obtaining the SWQ permit as required in the Drainage Ordinance or as requested by the property owner.

(b) If a parcel subject to the requirements of this section is located outside the boundaries of the City and stormwater from any portion of the parcel drains into the MS4, a SWQ permit or IAC shall be required for the parcel.

(c) A SWQ permit is in addition to any other permit required for development.

(d) The requirements contained in the SWQ permit, at the time of issuance shall not be increased due to new regulations or adoption of more restrictive requirements in the Development Process Manual.

Sec. 3. Industrial activity certification.

At any facility with activity covered by the EPA’s Standard Industrial Codes, the operator shall submit an Industrial Activity Certification (IAC) in a form approved by the Stormwater Engineer. The industrial activity certification may include any one of the following:

(1) A copy of the application for an individual permit from the EPA for stormwater discharges from industrial activity at the facility;
(2) A copy of the permit issued by the EPA for stormwater discharges from industrial activity at the facility;

(3) A copy of the Notice of Intent (NOI) for coverage under a Multi-Sector General Permit for stormwater discharges associated with industrial activity issued by the EPA;

(4) A statement of commitment to file an application for an individual permit from the EPA for stormwater discharges from industrial activity at the facility by a date certain agreed to by the Stormwater Engineer; or
(5) A statement of commitment to file a NOI for coverage under a general permit for stormwater discharges associated with industrial activity issued by the EPA by a date certain agreed to by the Stormwater Engineer.

Sec. 4. Amendment of a SWQ permit.

(a) An amendment to the SWQ permit is required in the following events:

(1) Change in ownership of the property covered by the SWQ permit. The permit issued due solely to a change in ownership shall contain the same terms and conditions as the initial permit.

(2) Any substantial deviation is made to a structural control or any change is made to a non-structural control on which the SWQ permit is based; or

(3) The subsequent additional development of any parcel covered by that SWQ permit, unless the additional development has already been anticipated and provided for in the Stormwater Pollution Prevention Plan (SWPPP) on which the SWQ permit is based.

(b) Applications to amend a SWQ permit to satisfy subsection Amendments to a SWQ permit to satisfy subsections (a)(2) and (a)(3) of this section must be obtained before commencement of the activity that triggers the need for the amendment.

(c) To amend a SWQ permit, the SWQ permittee must submit any revisions to the permit including the inspection checklist, maintenance plan and associated construction drawings, together with the appropriate form and amendment fee. The Stormwater Engineer shall review the amendment application and either approve or deny the amendment application based on compliance with the applicable provisions of this article and the design manual

(d) If an amendment is denied, the applicant can appeal to the Technical Standards Advisory Committee set forth in 14-5-2-15.

Sec. 5. Revocation of SWQ permit

(a) The Stormwater Engineer may revoke a SWQ permit after notice and opportunity for a hearing pursuant to section 20 of this article if he finds that

(1) The applicant knew or should have known that a statement made in the application for the SWQ permit was false;

(2) The SWQ permittee has violated any provision of its SWQ permit or of this division including, but not limited to, failure to amend a SWQ permit as required by section 4 of this Ordinance;

(3) The SWQ permittee or anyone acting on his behalf commits or threatens to commit an act of violence against a City official either on or off the job for the purpose of intimidating the official so that he will not perform his duties under this division; or

(4) The SWQ permit has been issued in error.

(b) The Stormwater Engineer shall send a written notification by certified mail, return receipt requested, to the SWQ permittee informing him of the grounds for revoking his SWQ permit. The SWQ permittee may request a hearing pursuant to section 20 by filing a written request with the Stormwater Engineer not later than the tenth day after notification by the City of the grounds for revocation..

Sec. 6. SWQ permit duration/termination

Upon written request, a SWQ permit shall be in effect until circumstances change to require an amendment or the SWQ permit is terminated as follows:

A Stormwater Quality permit may be terminated when

1) All structural changes are accepted by the City; and

2) No nonstructural controls are continuing.

3) A regional or other large stormwater quality program eliminates the need for the SWQ permit.

Sec. 7. SWQ permit reporting

The SWQ permittee shall certify that all controls have been maintained as specified in the SWPPP every three years in a form satisfactory to the City. If structural controls are in use, a New Mexico registered professional engineer shall also certify that all structural controls continue to conform to the plans and technical specifications..

Sec. 8. SWQ permit recordation.

A copy of the approved SWQP and subsequent permit shall be kept on file with the City of Albuquerque. Such permit shall remain in force until such time as a termination is issued pursuant to Section 6 of this ordinance. Any modification or alteration shall be kept on file with the City of Albuquerque.

ILLICIT DISCHARGES AND CONNECTIONS

Sec. 9. Unpermitted discharges associated with industrial activity prohibited.

A person who is the owner or operator of a facility that has storm water discharges associated with industrial activity must apply for and acquire an EPA Multi Sector General Permit and shall notify the City of such application, any NOI and any NOT, and must comply with the terms of any such permit.

Sec. 10. Discharge to MS4 prohibited.

(a) A person commits an offense if the person threatens to introduce, introduces or causes to be introduced into the MS4 any discharge that is not composed entirely of storm water except:

(1) A discharge authorized by, and in compliance with, a NPDES permit (other than the NPDES permit for discharges from the MS4);

(2) Any discharge in compliance with a Stormwater Quality Permit so long as no substances in the discharge causes exceedance of New Mexico or Federal water quality standards at the receiving water.

(3) A discharge or flow resulting from firefighting by the fire department if that discharge is not reasonably expected to be a significant source of pollutants to the MS4

(4) Water line flushing, provided that the water is not significantly chlorinated when reaching a receiving water;

(5) Rising ground waters;

(6) Ground water infiltration;

(7) Irrigation water from agricultural operations;

(8) Flows from riparian habitats and wetlands;

(9) Dechlorinated discharges of potable water; or

(10) Materials resulting from a spill where the discharge is necessary to prevent loss of life, personal injury or property damage provided that the party responsible for the spill takes all reasonable steps to minimize or prevent any adverse effects to human health or the environment.

(11) Any stormwater flows from property in a native undisturbed state.

(b) Notwithstanding the exceptions above, no discharge shall be allowed if:

(1) The discharge or flow in question has been determined by the City

Engineer to be a source of a pollutant or pollutants to the MS4;

(2) Written notice of such determination has been provided to the discharger; and

(3) The discharge has continued after the expiration of the time given in the notice to cease the discharge.

Sec. 11. Express prohibitions

No person shall:

(a) Leave, accumulate, discharge, or allow animal waste on a publicly owned property or on private property that will drain to the MS4;

(b) Allow any fluids from motor vehicles to drip or flow on public property or in the MS4

(c) Blow or cause dirt, leaves or other organic or inorganic material to leave private property and be located on any public property or in the MS4.

COMPLIANCE AND ENFORCEMENT

Sec. 12. Compliance monitoring; methods.

(a)_ At a facility that discharges stormwater to the MS4, the Stormwater

Engineer shall have the right to install, or to require the installation of, such devices as are necessary to conduct sampling or metering of the discharger's operations at the expense of the City.

(b) The Stormwater Engineer may require any facility that is this reasonably determined to have discharged a pollutant or any substance that causes, continues to cause, or will cause pollution, to conduct specified sampling, testing, analysis and other monitoring of its stormwater discharges. The Stormwater Engineer may specify the frequency and parameters of any required sampling or monitoring.

(c) The Stormwater Engineer may require any facility that has been found to have violated this ordinance to install monitoring equipment as necessary at the discharger's expense. The discharger, at its own expense, shall at all times maintain the facility's sampling and monitoring equipment in a safe and operating condition. Each device used to measure storm water flow and quality must be calibrated regularly to ensure accuracy. The Stormwater Engineer may also require monitoring of non-storm water discharges if the Stormwater Engineer reasonably believes that such discharges violate the City's MS4 permit requirements.

(d) Upon written request of the Stormwater Engineer, a facility shall submit in writing the results of any sampling or monitoring undertaken pursuant to the requirements of this article.

(e) Facilities shall maintain the results of any monitoring and any supporting documentation undertaken pursuant to this Ordinance for three (3) years

(f) All monitoring required by this article shall be performed in accordance with the established methodologies and protocols of the EPA or New Mexico Environmental Department.

(g) Nothing in this Ordinance shall provide for a private cause of action.

Sec. 13. Regulations and forms authorized.

The Stormwater Engineer shall promulgate regulations and forms regarding compliance with the requirements of this article. Such regulations and forms shall be available at the office of the City Engineer; the office of the Stormwater Engineer; and on the City website. The regulations and forms established hereunder may be amended or supplemented from time to time.

Sec. 14. Cumulative effect.

(a) This Ordinance is cumulative of other requirements imposed by Ordinances and Regulations of the City. To the extent of any inconsistency, the more restrictive provision shall govern.

(b) Any authorization granted by or any affirmative defense to a violation allowed pursuant to this Ordinance does not excuse compliance with federal or state law or any other provisions of this Code or any other City ordinance relating to the activities regulated by this article.

Sec. 15. Remedies not exclusive.

The remedies listed in this article are not exclusive of any other remedies available under any applicable federal, state or local law, and it is within the discretion of the City to seek cumulative remedies. The suspension, revocation, cancellation, or denial of any permit issued under this article shall not prohibit imposition of any civil or criminal penalty. The imposition of a civil or criminal penalty shall not prohibit any other remedy and shall not prohibit the suspension, revocation, or denial of any permit issued under this article.

Sec. 16. Access to facilities and records.

(a) When it is necessary to make an inspection to enforce the provisions of this article or to inspect or investigate conditions related to water quality, an authorized City official may enter a building or premises at reasonable times to inspect or to perform the duties imposed by this article or to inspect or review records, reports, data, plans, or other documents relating to compliance with this article or with any NPDES storm water permit. If the building or premises is occupied, credentials must be presented to the occupant and entry requested. If the building or premises is unoccupied, the authorized City official shall first make a reasonable effort to locate the owner or other person having charge or control of the building or premises and request entry. If refused, the authorized City official shall have recourse to the remedies provided by law to secure entry.

(b) When, due to emergency, immediate entry is necessary to protect life or property, or when the authorized City official shall have first obtained a proper inspection warrant or other remedy provided by law to secure entry, no owner, occupant or any other person having charge, care or control of any building or premises shall fail or neglect, after proper request is made as herein provided, to promptly permit entry therein by the authorized City official for the purpose of inspection and investigation pursuant to this article or other laws relating to water quality.

(c) Any temporary or permanent obstruction to safe and easy access to a facility that is to be inspected or sampled must be promptly removed upon the written request of the authorized City Official or Stormwater Engineer and may not be replaced.The cost of clearing access to the facility shall be borne by the discharger.

(d) The Stormwater Engineer or any City police officers are hereby authorized to undertake the activities authorized by this section.

Sec. 17. Criminal enforcement provisions applicable.

(a) Any person who violates any provision of this article shall be guilty of an offense and upon conviction thereof, shall be punished by a fine of not less than $250.00 nor more than $500.00 and up to thirty (30) days in jail for each violation. Each day in which any violation shall occur shall constitute a separate offense. Prosecution or conviction under this section shall not preclude any civil remedy or relief for a violation of this article. Once cited for an offense, an additional citation may be issued for each day the violation continues unless the violator has entered into an agreement with the City for mitigation, correction and any other necessary action and is acting in conformity with the agreement and the schedule in the agreement.

(b) In addition to criminal prosecution, where applicable, the City shall have the right to seek the judicial remedies provided in section 18 of this Ordinance for any violation of this article.

Sec. 18. Civil enforcement provisions applicable.

(a) The City, acting through the City attorney, is hereby authorized to file an action in a court of competent jurisdiction to:

(1) Enjoin any person from violating or threatening to violate the terms, conditions and restrictions of any permit issued under this article;

(2) Enjoin the violation or threatened violation of the provisions of this

Ordinance; or

(3) Recover civil penalties for violation of the terms, conditions and restrictions of any permit authorized under this article;

(4) Recover civil penalties for violation of the provisions of this Ordinance; or

(5) Recover damages from the owner of a parcel in an amount adequate for the City to undertake any construction remediation, cleanup, or other activity necessary to bring about compliance with this chapter. In addition to judicial remedies, such damages are recoverable through the imposition of a municipal lien on the parcel under NMSA 1978, § § 3-36-1 to 3-36-5.

(b) The City, acting through the City Attorney, is hereby authorized to enter into agreements in lieu of litigation to achieve compliance with the terms, conditions and restrictions of any stormwater permit authorized under this article or the provisions of this article.

The City's authority in subsections (a) and (b) is in addition to all provisions of these Ordinances relative to the definition of offenses and the provision of penalties for violations of such offenses.

Sec. 20. Appeals; hearing.

Any person whose SWQ permit is revoked, , or who is otherwise aggrieved by a notice, action or decision by the Stormwater Engineer, Director of Department of Municipal Development, or Building Official undertaken pursuant to this article shall, upon written request, be entitled to a hearing to be conducted by a hearing officer designated by the City. The hearing officer shall render a decision within five days after the close of the hearing. Where time is of the essence, the aggrieved person may so advise and state the reason therefore in the request and, to the extent reasonably warranted and allowed by the circumstances, an expedited hearing of and decision on the issue shall be afforded.


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