City of Ellsworth Ordinance for Regulations for Post Construction of Stormwater Management
(First Published in the Ellsworth County Independent/
Reporter, January 3, 2019)
ORDINANCE NO. 3092
AN ORDINANCE ESTABLISHING REGULATIONS
FOR POST CONSTRUCTION STORMWATER
MANAGEMENT WITHIN THE CITY;
NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF ELLSWORTH, KANSAS:
Section 1: Purpose and Findings.
The purpose of this ordinance is to provide requirements and criteria to prevent and manage stormwater pollution and to diminish adverse impacts to the health, safety, property, and general welfare of the citizens of the City of Ellsworth through regulating stormwater runoff from areas of development and redevelopment to the maximum extent practicable. This ordinance will also promote the public welfare by guiding and regulating stormwater management in the design, construction, and maintenance of areas of development and redevelopment.
Section 2: Authority and Applicability.
(a) The provisions of this ordinance are deemed not to limit any other lawful regulatory powers of the City.
(b) The regulations set forth herein or set forth elsewhere when referred to in this ordinance shall be known as the Regulations for Post Construction Stormwater Management.
(c) The regulations shall apply to all developments and redevelopments as defined in this ordinance within the corporate limits of the City and within the three-mile jurisdictional boundary of the City.
Section 3: Definitions.
For the purposes of this ordinance, the following definitions shall apply:
• 2-Year Event shall mean the storm event having a fifty (50) percent chance of being equaled or exceeded in any given year.
• 5-Year Event shall mean the storm event having a twenty (20) percent chance of being equaled or exceeded in any given year.
• Best Management Practices (BMPs) shall mean structural or non-structural water quality and quantity management practices including schedules of activities, prohibitions of practices, maintenance procedures and other administrative and management practices that are recognized and generally accepted to be effective and practical means of reducing or preventing pollution of stormwater or waters of the State, or are otherwise approved by the Street Superintendent or his/her designee.
• BMP Inspection Fee shall mean a fee charged for inspection of a Structural BMP by the City due to a failure of the BMP owner to maintain or repair the BMP to function as designed in proper working condition. These BMP inspections are meant to ensure that the BMPs are functioning as intended and are being properly maintained. Fees shall be assessed per the City’s current yearly standard schedule of fees.
• City shall mean the City of Ellsworth, Kansas.
• City Inspection shall mean an inspection by the City of a Structural BMP on an annual basis until the BMP is established and thereafter on a periodic basis as determined by the City. City inspections will be made to ensure that the BMPs are functioning as intended and are being properly maintained.
• Common Plan of Development or Sale shall mean a contiguous area such as a subdivision where multiple separate and distinct development activities may be taking place at different times, on different schedules, but are covered under one common development plan.
• Construction Activity shall mean any construction practices or work including, but not limited to, clearing, grubbing, grading and excavation, which disturbs 25,000 sq. ft. or more of total land area; or which is part of a larger common plan of development or sale which disturbs a cumulative total area of 25,000 sq. ft. or more during the life of the project. Construction activity does not include routine maintenance such as that performed to maintain the original line and grade, hydraulic capacity, or the agricultural use of the land.
• Detention shall mean the temporary storage of stormwater in a stormwater management facility with the goals of controlling peak discharge rates and providing gravity settling of pollutants.
• Detention Facility shall mean a detention basin or alternative structure designed for the purpose of temporary storage of stream flow or surface runoff and gradual release of stored water at controlled rates.
• Director shall mean the Street Superintendent of the City, or an authorized deputy, agent, or representative.
• Impervious shall mean surfaces that cannot effectively infiltrate rainfall (e.g. building rooftops, pavement, sidewalks, driveways, etc.).
• Infiltration shall mean the process of percolating stormwater into the subsoil.
• Land Development Project shall mean any project with 25,000 sq. ft. or greater of construction activity on newly developed land which results in increasing impervious area, except for any project which would qualify for any exception under section Seven (7) herein.
• Land Redevelopment Project shall mean any project with 25,000 sq. ft. or greater of construction activity on a site that was previously developed, except for any project which would qualify for any exception under section Seven (7) herein. This includes remodeling that adds impervious area, demolishing/rebuilding structures and expanding existing development, including construction parking lots and non-habitable buildings. The determination of the area shall be based only on the construction activity of the land redevelopment project that is having impervious area added or areas being disturbed.
• Maintenance Agreement shall mean a recorded document that describes the procedures for access, inspections, corrections, and maintenance, and how Structural BMPs will be maintained.
• National Pollutant Discharge Elimination System (NPDES) shall mean the program for issuing, modifying, revoking, reissuing, terminating, monitoring, and enforcing permits under the Federal Clean Water Act (Sections 301, 402, 318, and 405), CFR Title 33, Sections 1317, 1328, 1342, and 1345; and Kansas Department of Health & Environment, Rules and Regulations Pertaining to the Issuance of Permits Under the National Pollutant Discharge Elimination System.
• Non-Structural Best Management Practice shall mean any Best Management Practice that is a program and not a permanent structure (e.g. use of no phosphorus fertilizer, recycling practices, soil amendments, soil ripping, etc.).
• Notice of Violation shall mean a notice sent by the City that the Structural BMP is in violation of this ordinance’s requirements and that the owner is subject to a penalty.
• Owner shall mean the named property owner(s) as indicated by the records of the Register of Deeds of Ellsworth County, Kansas.
• Pollutant shall mean any substance or material which contaminates or impedes the flow of water including, but not limited to dredged spoil, spoil waste, incinerator residue, filter backwash, domestic or industrial wastewater, septic waste, sewage, garbage, refuse, junk, sewage sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, soil, sediment, yard waste, industrial or household hazardous waste, hazardous substance, pesticide, fertilizer, animal waste, concrete truck washout, used oil, antifreeze, litter, and industrial, municipal, or agricultural waste.
• Post Construction Stormwater Management Plan shall mean a plan of the land development project or land redevelopment project that includes location of Structural BMPs, the owner, the design of the Structural BMPs, the schedule for installation, the schedules and procedures for owner inspections and maintenance, and who is responsible for maintenance (information that will be included in a recorded maintenance agreement required prior to any building permit approval). It will include a description of Non-Structural Best Management Practices, as applicable.
• Stormwater shall mean precipitation runoff, snow melt runoff and other surface water runoff.
• Stormwater Management shall mean the use of structural or non-structural BMPs that are designed to reduce stormwater runoff pollutant loads, discharge volumes, peak flow discharge rates and detrimental changes to stream water quality or habitat.
• Stormwater Management Plan Application Fee shall mean a fee charged for review of a Post Construction Stormwater Management Plan for compliance with City ordinances and regulations. Fees shall be assessed per the City’s current yearly standard schedule of fees.
• Structural Best Management Practice shall mean any BMP that is intended to be a permanent structure for managing water quality and quantity.
• Watershed shall mean the areas within the corporate and extra territorial jurisdictions of the City draining to the City.
Section 4: Requirement.
Within the City's corporate and three-mile jurisdictional boundary, all land development projects and land redevelopment projects with 25,000 sq. ft. or more of construction activity must include provisions for the management of the post construction stormwater runoff in a Post Construction Stormwater Management Plan.
Section 5: Post Construction Stormwater Management Procedures.
(a) A Post Construction Stormwater Management Plan as applicable shall be submitted to the City for transmittal to the Director for review and approval, as part of any preliminary plat for a land development project or land redevelopment project with 25,000 sq. ft. or more of construction activity.
(b) A Post Construction Stormwater Management Plan as applicable shall be submitted to the City for transmittal to the Director for review and approval, as part of any building permit application for a land development project or land redevelopment project with 25,000 sq. ft. or more of construction activity, unless a Post Construction Stormwater Management Plan was required and submitted previously.
(c) A Stormwater Management Plan application fee may be assessed to an owner by the City to review the Post Construction Stormwater Management Plan for compliance with City ordinances and regulations.
Section 6: Post Construction Stormwater Management Plan.
(a) For land development projects, the Post Construction Stormwater Management Plan shall include, at a minimum, provisions for Structural BMPs to detain the 5-year rainfall event measured at every discharge point from the land development project.
(b) For land redevelopment projects, the Post Construction Stormwater Management Plan shall include, at a minimum, provisions for Structural BMPs to detain the 2-year rainfall event measured at every discharge point from the land redevelopment project.
(c) All site designs shall establish stormwater BMPs to control the peak flow rates of stormwater discharge associated with specified design storms and reduce the generation of stormwater. These practices should seek to utilize pervious areas for stormwater treatment and to infiltrate stormwater runoff from driveways, sidewalks, rooftops, parking lots, and landscaped areas to the maximum extent practical to provide treatment for both water quality and quantity.
(d) For land development projects, post-development flow rates shall not exceed pre-development conditions for storm events up to and including the 100-year storm event. This can be addressed by considering the following:
(1) minimizing the amount of directly connected impervious area and
(2) controlling the rate of runoff by implement stormwater management systems which use practices that maintain vegetative and porous land cover, or use of storage facilities.
(e) Generally recognized and accepted methods for calculating peak flows to size all stormwater BMPs shall be used and submitted with the Post Construction Stormwater Management Plan. Acceptable methods of calculating the runoff magnitude include the rational method and the Soil Conservation Service (SCS) TR-55 method.
(f) If hydrologic or topographic conditions warrant greater control than that provided by the minimum control requirements, the City reserves the right to impose any and all additional requirements deemed necessary to control the volume, timing and rate of runoff.
(g) The Post Construction Stormwater Management Plan shall be valid from the date of issuance through the date the City notifies the owner that all stormwater management practices are acceptable to the City.
Section 7: Waivers.
(a) A single family dwelling, two family dwelling, duplex or triplex, provided the above units are not part of a larger common plan of development or sale, are exempt from the requirements of this ordinance.
(b) Land development projects with approved preliminary plats and land redevelopment projects with approved building permits prior to January 1, 2019 are exempt from the requirements of this ordinance.
(c) The Director may grant partial or complete waivers from the requirements of this ordinance based on:
(1) Unplanned emergency work or repairs necessary for the health, safety, and general welfare of the public;
(2) Previously constructed private or public Structural BMP(s) within the same watershed that were constructed to be above the post construction management requirements and for which the Director has approved credits above and beyond the post construction management requirements;
(3) Circumstances where the project cost of implementing the proposed requirements would be so disproportionate that completing the project would not be practical, as determined by the Director.
(d) Land development or redevelopment projects with no construction activity are exempt from the requirements of this ordinance.
Section 8: Maintenance.
(a) The owner of property on which a Structural BMP has been installed shall be responsible for maintenance of the BMP.
(b) Prior to any building permits being issued the owner shall execute and record a maintenance agreement with the City that shall be binding on all subsequent owners of the subject property served by the Structural BMP. Such maintenance agreement shall include schedules and procedures for inspections and maintenance and who is responsible for maintenance.
(c) The owner shall provide access to the property, at reasonable times, for inspections by the Director to ensure that the Structural BMP is maintained in proper working condition to meet design standards.
(d) Failure to comply with the maintenance agreement or failure to comply with inspecting the Structural BMP as requested by the City may result in a City BMP inspection fee that shall be assessed against the property owner. Fees shall be due upon receipt by the property owner of an invoice from the City for such inspection. Fees shall be made payable to City of Ellsworth. Any person who fails to pay such fee within 30 days of receipt shall be subject to a late fee, in addition to an enforcement action for violation of this ordinance.
Section 9: Replacement.
The owner is responsible for replacement of Structural BMPs that have been determined to no longer be effective by the Director.
Section 10: Right of Entry.
The City may perform inspections of the property to verify compliance with this ordinance and are authorized to enter the property at reasonable times and in a reasonable manner to inspect. If Structural BMPs are deemed by the Director to be ineffective or maintained improperly, the Director may take enforcement action as described within this ordinance. Whenever the Director has cause to believe there exists, or potentially exists in or upon the property, any condition which constitutes a violation of this ordinance, the Director is authorized to enter the property at reasonable times to perform the duties imposed by this ordinance. If entry is refused, the Director shall have recourse to the remedies provided by law to secure entry.
Section 11: Unlawful Acts.
It shall be unlawful for any person to:
(a) Not maintain the Structural BMPs per the maintenance agreement;
(b) Not correct violations noted by the City;
(c) Prevent or obstruct the Director from entering the property with a Structural BMP per this ordinance;
(d) Not construct BMPs per the direction of this ordinance;
(e) Discharge pollutants or effluents not permitted by the NPDES permit;
(f) Falsify records; or
(g) Violate any provision of this ordinance.
Section 12: Notice of Violation.
(a) Whenever the Director finds that any owner has violated or is violating this ordinance, or any prohibition, limitation or requirement contained herein, such owner shall be notified in writing.
(b) Upon notice by the Director the owner shall correct the violation.
(c) If satisfactory corrections are not made by the owner within a reasonable period of time or thirty (30) days if not specifically provided in the Notice of Violation, the Director may perform all necessary work to place the facility in proper working condition.
(d) If satisfactory corrections are not made by the owner within a reasonable period of time or thirty (30) days if not specifically provided in the Notice of Violation, the owner of the Structural BMP may be assessed the cost of the work and/or any lawful penalties.
(e) Structural BMP owners are subject to a Notice of Violation if the Structural BMP is not maintained in proper working condition or City requests for inspections are not complied with.
(f) A BMP inspection fee may be assessed to an owner for a City inspection of a Structural BMP which is not maintained in proper working condition or is not repaired within a reasonable period of time.
(g) A BMP inspection fee may be assessed to an owner for a City inspection of a Structural BMP if the owner has not complied within a reasonable period of time to a City request for an inspection.
Section 13: Penalties.
(a) Any owner who receives a Notice of Violation from the City who fails to correct the violation within the time provided, or in thirty days (if a shorter term is not specifically provided), and has violated or is violating this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine in the sum of not less than $100.00 and not more than $500.00 per day and per violation, with said amount updated by the City of Ellsworth yearly standard fee schedule. In the case of a continuing violation, each day shall constitute a separate offense.
(b) If the City determines that the conditions described above constitute an immediate nuisance and hazard to public safety, the City shall issue a written notice to abate and remove such nuisance or hazard within twenty-four hours. If such person responsible shall have failed or refused to abate and remove such nuisance at the expiration of twenty-four hours from delivery of notice, the City may remove such nuisance and the expense of such removal shall be recoverable in an action at law against the person responsible.
Section 14: Appeals.
Any owner issued a Notice of Violation by the Director under the provisions of this ordinance may within ten (10) days of the mailing of the written Notice of Violation appeal to the Director for a hearing. The Director will notify the appellant in writing of the date, time, and place of hearing before the City of Ellsworth Planning and Zoning Commission, which date shall be no later than thirty (30) days from the filing of the appeal. The appeal hearing will not be conducted according to the Rules of Evidence, but the appellant will have the right to:
(a) Call, examine, and take sworn testimony of witnesses on any matter relevant to the issues of the hearing;
(b) Introduce documentary and physical evidence;
(c) Cross examine opposing witnesses on any matter relevant to the issues of the hearing; and
(d) Rebut opposing evidence.
The City of Ellsworth Planning and Zoning Commission will review all information provided by the appellant. After the appeal hearing, the Commission will make written findings of fact, and based upon such findings, will sustain, modify or rescind the original order. A written report of the Commission’s decision will be furnished to the appellant within fourteen (14) days from the date that the appeal hearing is closed. The decision of the Commission will be final and binding upon both the City and the appellant, and may be appealed as provided by state law. However, such decision will not be stayed unless so ordered by the district court.
Section 15: Severability.
Each section or subsection of this ordinance is hereby declared to be independent of every other section or subsection of this ordinance; and invalidity of any section or subsection of this ordinance shall not invalidate any other section or subsection hereof.
Section 16: Effect.
That this ordinance shall take effect on this 26th day of December , 20 18
and following its publication in the Ellsworth County Independent Reporter, the official city newspaper.
APPROVED AND PASSED by the Governing Body of the City of Ellsworth.
On the 26th day of December , 20 18
Alan M. Stefek
Mayor
Attest:
Patti L. Booher, CMC
City Clerk
