1 Ordinance No. 625

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ORDINANCE NO. 625

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON ADDING CHAPTER 12 TO TITLE 9 OF THE LIVINGSTON MUNICIPAL CODE PERTAINING TO URBAN STORM WATER QUALITY MANAGEMENT

WHEREAS, the City is obligated under the Federal Clean Water Act and the State Porter­ Cologne Act to take steps to reduce pollution in its storm water runoff; and

WHEREAS, the City is required to prepare and adopt a storm water ordinance to regulate storm water discharge from industrial and construction related activities; and

WHEREAS, the Urban Storm Water Quality Ordinance is statutorily exempt from CEQA under Discharge Requirements, Section 15263 of the CEQA Regulations.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LIVINGSTON, CALIFORNIA, DOES ORDAIN as follows:

SECTION 1. Chapter 12, Urban Storm Water Quality Management is added to Title 9, Public Ways and Property, of the Livingston Municipal Code, to read as follows:

Chapter 12

URBAN STORM WATER QUALITY MANAGEMENT

9-12-1: TITLE.

This chapter shall be known as the URBAN STORM WATER QUALITY MANAGEMENT ORDINANCE OF THE CITY OF LIVINGSTON. (Ord. 625, xx-xx-2015)

9-12-2: PURPOSE AND INTENT.

The purpose and intent of this chapter is to ensure the health, safety, and general welfare of citizens, and to protect and enhance the quality of the city’s watercourses, water bodies, and wetlands pursuant to and consistent with all applicable state and federal laws related to storm water management, including, but not limited to, the clean water act (33 USC 1251 et seq.), the National Pollutant Discharge Elimination System (NPDES) regulations (40 CPR 122 et seq.) and the City’s storm water discharge permit for small municipal storm sewer systems (MS4) pursuant to California State Water Resources Control Board (SWRCB) Order No. 2013-0001-DWQ. (Ord. 625, xx-xx-2015)

9-12-3: DEFINITIONS.

For the purpose of this chapter, the following definitions shall apply:

Approved Storm Water Runoff: Surface runoff collected by any roads with drainage systems, streets, curbs, gutters, catch basins, natural and artificial channels, ditches, aqueducts, storm drains, inlets, conduits or other drainage structures owned, operated or approved by the City.

Best Management Practices (BMPs): Schedules of activities, prohibitions of practices, general good housekeeping practices, maintenance procedures, educational programs, and other management practices to prevent or reduce the discharge of pollutants directly or indirectly to waters of the United States. BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, drainage from raw materials storage, and control of hazardous materials. The California Stormwater Quality Association (CASQA) Storm Water Best Management Practice Handbooks for Municipal, Industrial/Commercial and Construction Activity provide a detailed discussion of BMPs.

California State Water Resources Control Board (SWRCB): The state agency charged with administration of the National Pollutant Discharge Elimination System (NPDES) permits.

Clean Water Act: The Federal water pollution control act, as amended, 33 USC 1251 et seq. Contaminated Groundwater: Impure groundwater or groundwater mixed with a pollutant.

Director: The Director of Public Works, or his or her designee. Enforcement Officer: The Director, or his or her designee.

Environmental Protection Agency (EPA): The Federal agency charged with enforcement of environmental laws and regulations.

National Pollutant Discharge Elimination System (NPDES) Permit: Storm water discharge permit for small municipal storm sewer systems (MS4) issued by the SWRCB which authorizes the discharge of storm water pursuant to the Clean Water Act (33 USC 1342).

Non-Storm Water Discharge (NSWD): Any discharge to the storm drain system that is not composed entirely of storm water.

Notice of Intent (NOI): A form submitted to the SWRCB notifying the agency of a Person’s intent to be covered under the State General Permit for the control of construction site runoff on projects that disturb one acre of land or more, in one or more phases of construction or for industrial activities.

Person: Any individual, partnership, corporation, partnership, firm, company, corporation, limited liability company, association, joint stock company, trust, estate, government entity, or any other legal entity, or their legal representatives, agents or assigns.

Pollutant: Anything which causes deterioration of water quality such that it impairs subsequent and/or competing uses of water. Shall have the same meaning as defined in 40 CFR 122.2, and shall include, but not be limited to, any solid, liquid, gas, or other substance that can alter the physical or chemical properties of water including, but not limited to, fertilizers, solvents, sludge, petroleum or petroleum products, solid waste, garbage, sand, dirt, animal waste, acids, bases, paints, oil and other automotive fluids, rubbish, debris, hazardous waste, chemicals, fresh concrete, yard waste from residential and commercial landscaping operations, fecal coliform, fecal streptococci, enterococcus, heavy metals, materials that result from constructing a building or structure, and nauseous or offensive matter of any kind.

Premises: Any building, lot, parcel, real estate, or land or portion of land, whether improved or unimproved, including adjacent sidewalks and parking strips.

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Regional Water Quality Control Board (RWQCB): The state division of the SWRCB charged with enforcement of the water quality laws and regulations in the state of California.

Storm Drain System: All or any part of publicly or privately owned and maintained roads, streets, catch basins, curbs, gutters, ditches, manmade channels, canals, storm drains and dry wells located within public easements, rights of way, parks, common areas, retention areas, or other publicly or privately owned or maintained real property designed or used for collecting, holding, or conveying storm water to waters of the United States, or designed to be percolated (i.e., dry well) into the groundwater system.

Storm Water: Any surface flow, runoff, and drainage consisting entirely of water from any form of natural precipitation, and resulting from such precipitation.

Storm Water Runoff: Surface runoff and drainage associated with storm events.

Unlawful Connection: Any physical connection to a storm drain system which has not been permitted by the City.

Unlawful Discharge: Any discharge to the storm drain system that is not composed entirely of storm water or storm water discharges from private property designed or intended to be disposed of on-site. Any spilling, leaking, pumping, pouring, emitting, emptying, ejecting, placing, releasing, leaching, dumping or disposing into or on any land in a manner that may cause pollution. (Ord. 625, xx-xx-2015)

9-12-4: AUTHORITY FOR ADMINISTRATION AND ENFORCEMENT.

The Director or his or her designee shall have the authority to exercise the powers and perform the duties set forth in this chapter and to administer and enforce provisions of this chapter. The Director may designate other employees to exercise such powers and perform such duties, as he/she deems appropriate. (Ord. 625, xx-xx-2015)

9-12-5 : REGULATORY CONSISTENCY/APPLICATION.

This chapter shall be construed to assure consistency with requirements of the Federal Clean Water Act and its implemented regulations for storm water management, and to comply with the SWRCB’s storm water discharge permit for small MS4s, and shall be applicable to all storm water generated on any developed or undeveloped urban lands lying within the City of Livingston or conveyed by the public storm drain system. (Ord. 625, xx-xx-2015)

9-12-6 : ULTIMATE RESPONSIBILITY OF DISCHARGER.

The standards set forth herein and promulgated pursuant to this chapter are minimum standards; therefore, this chapter does not intend nor imply that compliance by any Person will ensure that there will be no contamination, pollution, or unauthorized discharge of pollutants into waters of the United States caused by said Person. This chapter shall not create liability on the part of the City of Livingston, or any agent or employee thereof, for any damages, claims, or liabilities that result from any dischargers, reliance on this chapter or any administrative decision lawfully made hereunder. (Ord. 625, xx-xx-2015)

9-12-7 : NON-STORM WATER DISCHARGE; PROHIBITIONS AND EXEMPTIONS.

A. Discharge Of Substances: Unless expressly authorized or exempted by this chapter, no Person shall cause or allow the discharge to a public right of way or public storm drain system of any substance that is not composed entirely of storm water. Pollutant substances may include, but are not limited to, petroleum products (oil and grease), pesticides, fertilizers, household or industrial chemicals, industrial process wastewater, domestic sewage, and animal waste. Other potential sources of pollutants include washdown from parking lots, private paved roads, gasoline stations, industrial facilities, business enterprises, dwelling units and carwash fundraisers.

B. Disposing Of Materials: Unless expressly authorized or exempted by this chapter, no Person shall use, store, spill, dump, or dispose of materials in a manner that those materials could cause or contribute to the addition of pollutants to storm water. Pollutant materials may include, but are not limited to, refuse, rubbish, garbage or other discarded or abandoned objects, articles, or other litter in or upon any street, alley, sidewalk, storm drain system, business place, or upon any public or private plot of land in the city so that the same can become a pollutant by entering the storm drain system except in containers or in lawfully established waste disposal facilities.

C. Exemptions: The following discharges are exempt from the prohibitions set forth in subsections A and B of 9-12-7:

1. Discharges authorized by a separate NPDES or RWQCB permit.

2. The following categories of non-storm water discharges are permissible unless otherwise prohibited under subsection C3, C4, or CS of 9-12-7:

a. Water line flushing,

b. Landscaping irrigation,

c. Diverted stream flows,

d. Rising ground waters,

e. Uncontaminated ground water infiltration as defined in 40 CFR 35.2005(b)(20),

f. Uncontaminated pumped ground water,

g. Discharges from potable water sources,

h. Foundation drains,

1. Air conditioning condensation,

j. Irrigation water,

k. Springs,

1. Water from crawl space pumps,

m. Footing drains,

n. Lawn watering,

o. Individual residential car washing,

p. Flows from riparian habitats and wetlands,

q. Dechlorinated swimming pool discharges,

r. Discharges from emergency firefighting activity, or

s. Any other activity that the Director identifies is not a significant contributor of pollutants during the City of Livingston’s NPDES Storm Water Discharge Permit for Small MS4s’ permit term.

3. No Person shall discharge to public storm drain system any exempted discharge under this subsection if the Director or assigned designee identifies and provides written notice to the Person that the discharge has the potential to be a source of pollutants to receiving waters, waterways, or ground water.

4. No Person shall discharge to the public storm drain system anything that would result in or contribute to a violation of the City’s NPDES Storm Water Discharge Permit for Small MS4s. Liability for any such Unlawful Discharge shall be the responsibility of the Person causing or responsible for the discharge.

5. No Person shall establish, use, maintain, or continue any unlawful connection to the public storm drain system which has caused or is likely to cause a violation of this section. This prohibition is retroactive and shall apply to any connection that was made in the past, regardless of whether it was made under permit or other authorization, or whether it was permissible under the law or practices applicable or prevailing at the time of the connection.

6. Excess Irrigation Runoff Prohibited: Non-storm water runoff discharge that is not incidental is prohibited unless otherwise specified in this ordinance. Incidental runoff is defined as unintended amounts (volume) of runoff, such as unintended, minimal over­ spray from sprinklers that escapes the area of intended use. Water leaving an intended use area is not considered incidental if it is part of the facility design, if it is due to excessive application, if it is due to intentional overflow or application, or if it is due to negligence.

No person shall allow irrigation runoff in excess of incidental runoff to occur. Any person responsible for controlling runoff in excess of incidental runoff shall:

a. Detect leaks (for example, from broken sprinkler heads) and correct the leaks within 72 hours of learning of the leak;

b. Properly design and aim sprinkler heads;

c. Not irrigate during precipitation events; and

d. Manage pond containing recycled water such that no discharge occurs unless the discharge is a result of a 25-year, 24-hour storm event or greater, and the appropriate Regional Water Board is notified by email no later than 24 hours after the discharge. The notification is to include identifying information, including the Permittee’s name and permit identification number. (Ord. 625, xx­ xx-2015)

9-12-8: OPERATING FACILITIES OR ACTIVITIES.

A. All Persons owning or operating Premises or engaged in activities who are required by Federal or State law to submit to SWRCB an NOI to comply with an NPDES stormwater discharge permit shall provide a copy of such notice and/or permit to the Director upon request. Facilities required to apply for a stormwater discharge permit are identified in 40 CFR 122.26(b)(14) and may include, but are limited to, maintenance operations, storage facilities, manufacturing activity, assembly operations, equipment operations, vehicle loading or fueling, food processing, trucking, or cleanup procedures which are carried out partially or wholly out of doors.

B. All Persons engaged in activities which will or may reasonably be expected to result in pollutants entering the public storm drain system shall undertake BMPs to minimize such pollutants, shall provide protection from accidental discharge of pollutants to the public Storm Drain System and comply with cleanup and notification requirements of this chapter. Such measures shall include the requirements imposed by Federal, State, County, or local authorities. BMPs are site specific and are described in the

CASQA documents "Storm Water Best Management Practice Handbook: Construction"; "Storm Water Best Management Practice Handbook: New Development and Redevelopment"; "Storm Water Best Management Practice Handbook: Industrial And Commercial"; "Storm Water Best Management Practice Handbook: Municipal"; or other guidance documents available from EPA and/or RWQCB.

C. If a BMP is required by the Director or City Engineer to prevent a pollutant from entering the public storm drain system, the Person receiving the notice of such a requirement may petition the City Council of the City of Livingston to reconsider the application of the BMPs to the Premises or activity. The written petition must be received by the City Clerk within ten ( 10) working days of the notice issued by the Director or City Engineer. The petition shall set forth any reasons as to why application of BMPs to the Premises or activity should not be required and any proposed alternatives to such requirement. The City Council will act within thirty (30) calendar days of the filing of the petition. (Ord. 625, xx-xx-2015)

9-12-9: CONSTRUCTION SITES.

A. All Persons engaged in construction activities who are required by Federal or State law to submit to SWRCB and/or RWQCB a notice of intent to comply with an NPDES stormwater permit, shall provide the City with copies of the NOI and/or NPDES stormwater permit upon request. Construction activities that will disturb one acre or more of land area or smaller land areas, if they are part of a larger common plan of development or sale, are required to apply for a coverage under the Construction General Permit for storm water discharge (40 CFR 122.26(b)(15)).

B. Any Person performing construction shall not cause or contribute to a violation of the NPDES stormwater discharge permit issued by the SWRCB to the City of Livingston. Liability for any such discharge shall be the responsibility of the Person causing or responsible for the discharge. Any Person performing construction shall undertake BMPs to minimize pollutants (including sediments) from leaving the construction site, provide protection from accidental discharge of pollutants to the public storm drain system, and comply with the cleanup and notification requirements of this chapter. Site operator shall ensure erosion and sediment control and control of waste and properly dispose of waste, such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality. Such measures shall include the requirements imposed by Federal, State, County, or local authorities. BMPs are site specific and are described in the CASQA documents "Storm Water Best Management Practice Handbook: Construction"; "Storm Water Best Management Practice Handbook: New Development and Redevelopment"; "Storm Water Best Management Practice Handbook: Industrial and Commercial"; "Storm Water Best Management Practice Handbook: Municipal"; or other guidance documents available from EPA and/or RWQCB.

C. If a BMP is required by the Director or City Engineer to prevent a pollutant from entering the public storm drain system, the Person receiving the notice of such a requirement may petition the City Council of the City of Livingston to reconsider the application of the BMPs to the Premises or activity. The written petition must be received within ten (10) working days at the issuance of the notice by the Director or City Engineer and shall set forth any reasons as to why application of BMPs to the Premises or activity should not be required and any proposed alternatives to such a requirement. The City Council will act within thirty (30) calendar days of the filing of the petition. (Ord. 625, xx-xx-2015)

9-12-10: DEVELOPMENT AND REDEVELOPMENT PROJECTS.

To reduce the volume of storm water runoff and minimize typical pollutants associated with storm water runoff from development or redevelopment projects, the City requires that the following measures be implemented as part of the project for compliance with the NPDES stormwater permit:

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A. Site Design Measures for Small Development Projects: Projects that create and/or replace (including projects with no net increase in impervious footprint) between 2,500 square feet and 5,000 square feet of impervious surface, including detached single family homes that create and/or replace 2,500 square feet or more of impervious surface and are not part of a larger plan of development shall implement one or more of the following site design measures to reduce project site runoff and minimize associated pollutants:

1. Stream Setbacks and Buffers: A vegetated area including trees, shrubs, and herbaceous vegetation shall be retained (if existing) or established to protect a stream system or lake reservoir.

2. Soil Quality Improvement and Maintenance: Improve and/or maintain the soil through the incorporation of soil amendments and creation of microbial community.

3. Tree Planting and Preservation: Plant and/or preserve healthy established trees including evergreens and deciduous varieties, as applicable.

4. Rooftop and Impervious Area Disconnection: Reroute rooftop drainage pipes to drain rainwater to rain barrels, cisterns, or on-site permeable areas instead of the storm drain system.

5. Porous Pavement: Incorporate use of porous pavement, porous concrete and/or other permeable materials for on-site flat work (driveways, walkways, patios, parking areas, etc.) instead of traditional pavement or concrete.

6. Green Roofs: Incorporate use of a vegetative layer grown on a roof (rooftop garden).

7. Vegetated Swales: Construct an on-site vegetated, open-channel swale designed specifically to treat and attenuate storm water runoff.

Project proponents shall quantify the runoff reduction resulting from implementation of one or more of the above site design measures using the State Water Board Storm Water Multiple Application and Report Tracking System (SMARTS) Post-Construction Calculator or another methodology determined to be acceptable by the City.

B. Regulated Projects: Projects that create and/or replace 5,000 square feet or more of impervious surface.

1. Regulated projects shall implement site design measures, source control measures, Low Impact Development (LID) standards, and baseline hydromodification management described in this ordinance to effectively reduce runoff and pollutants associated with runoff. Proponents of regulated projects shall quantify the runoff reduction resulting from implementation of these measures using applicable calculations determined to be acceptable by the City.

2. Redevelopment projects, road projects, and linear underground/overhead projects (LUPs) are a special class of regulated project: these projects shall implement the following special requirements:

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a. Where a redevelopment project results in an increase of more than 50 percent of the impervious surface of a previously existing development, runoff from the entire project (including the existing, new, and replaced impervious area) is regulated; in this case, the entire project site is considered to be part of the regulated project.

b. Where a redevelopment project results in an increase of less than 50 percent of the impervious surface of a previously existing development, only runoff from the new and/or replaced impervious surface of the project is considered part of the regulated project.

c. Road Projects and LUPs – Any of the following types of road projects and LUPs that create 5,000 square feet or more of newly constructed contiguous impervious surface (either a newly constructed public road project or new private development projects that fall under the authority of the City of Livingston), shall be considered a regulated project; however, treatment of runoff of the 85th percentile that cannot feasibly be infiltrated onsite shall follow U.S. EPA guidance regarding green infrastructure to the extent possible. Types of projects include:

I. Construction of new streets or roads, including sidewalks and bicycle lanes built as part of the new streets or roads.

II. Widening of existing streets or roads with additional traffic lanes.

i) Where the addition of traffic lanes results in an alteration of more than 50 percent of the impervious surface of an existing street or road, runoff from the entire project (including the existing, new, and/or replaced impervious surfaces) is considered to be part of the regulated project.

ii) Where the addition of traffic lanes results in an alteration of less than 50 percent of the impervious surface of an existing street or road, only the runoff from new and/or replaced impervious surface of the project is considered to be part of the regulated project.

d. Construction of LUPs.

e. Specific exclusions are:

I. Sidewalks built as part of new streets or roads and built to direct storm water runoff to adjacent vegetated areas.

II. Bicycle lanes that are built as part of new streets or roads that direct storm water runoff to adjacent vegetated areas.

III. Impervious trails built to direct storm water runoff to adjacent vegetated areas, or other non-erodible permeable areas, preferably away from creeks or towards the outboard side of levees.

IV. Sidewalks, bicycle lanes, or trails constructed with permeable surfaces.

V. Trenching, excavation and resurfacing associated with LUPs; pavement grinding and resurfacing of existing roadways and parking lots; construction of new sidewalks, pedestrian ramps, or bike lanes on existing roadways; or routine replacement of damaged pavement such as pothole repair or replacement of short, non-contiguous sections of roadway.

C. Source Control Measures: Operators of regulated projects with pollutant generating activities and sources shall implement permanent and/or operation source control measures, as applicable. Source control measures consistent with the recommendations from the CASQA Stormwater BMP Handbook for New Development and Redevelopment or equivalent manual, shall be implemented for the following pollutant generating activities and sources:

1. Accidental spills or leaks

2. Interior floor drains

3. Parking/storage areas and maintenance

4. Indoor and structural pest control

5. Landscape/outdoor pesticide use

6. Pools, spas, ponds, decorative fountains, and other water features

7. Restaurants, grocery stores, and other food service operations

8. Refuse areas

9. Industrial processes

10. Outdoor storage of equipment or materials

11. Vehicle and equipment cleaning

12. Vehicle and equipment repair and maintenance

13. Fuel dispensing areas

14. Loading docks

15. Fire sprinkler test water

16. Drain or wash water from boiler drain lines, condensate drain lines, rooftop equipment, drainage sumps, and other sources

17. Unauthorized non-storm water discharges

18. Building and grounds maintenance

D. Low Impact Development (LID) Standards: All regulated projects shall implement Low Impact Development standards designed to reduce runoff and treat storm water conforming to the following criteria:

1. Site Assessment: Developers of regulated projects shall assess and evaluate how site conditions (i.e. soils, vegetation, and flow paths) will influence the placement of buildings and paved surfaces; this evaluation shall be used to satisfy the goals of capturing and treating runoff and assuring the goals of LID are incorporated into the project design. The following methods shall be used to optimize the site layout:

a. Define the development envelope and protected areas, identifying areas that are most suitable for development and areas to be left undisturbed.

b. Concentrate development on portions of the site with less permeable soils and preserve areas that can promote infiltration.

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c. Limit overall impervious coverage of the site with paving and roofs.

d. Set back development from creeks, wetlands, and riparian habitats.

e. Preserve significant trees.

f. Conform the site layout along natural landforms.

g. Avoid excessive grading and disturbance of vegetation and soils.

h. Replicate the site’s natural drainage patterns.

1. Detain and retain runoff throughout the site.

2. Drainage Management Areas (DMAs): As part of the design, the project site shall be divided into discrete DMAs. Each DMA shall manage runoff using site design measures, source controls and/or storm water treatment and baseline hydromodification measures.

3. Numeric Sizing Criteria for Storm Water Retention and Treatment: Regulated projects shall be designed to evapotranspire, infiltrate, harvest/use, and/or biotreat storm water to satisfy at least one of the following hydraulic sizing design criteria:

a. Volumetric Criteria:

I. The storm water runoff volume determined using the formula and volume capture coefficients in Urban Runoff Quality Management, Water Environment Federation (WEF) Manual of Practice No. 23/ASCE Manual of Practice No. 87 (1998); or,

II. The volume of annual runoff required to achieve 80 percent or more capture, determined in accordance with the methodology in Section 5 of the CASQA’s Stormwater Best Management Practice Handbook, New Development and Redevelopment (2003), using local rainfall data; or,

III. The storm water runoff volume resulting from an 85th percentile 24-hour storm event calculated pursuant to procedures developed by the County of Merced using precipitation frequency data published by the National Oceanic and Atmospheric Administration (NOAA).

b. Flow-based Criteria:

I. The flow of runoff produced from a rain event equal to at least 0.2 inches per hour intensity; or,

II. The flow of runoff produced from a rain event equal to at least 2 times the 85th percentile hourly rainfall intensity as determined from local rainfall records.

4. Site Design Measures: Site design measures as described in this ordinance shall be used to reduce the amount of runoff, to the extent technically feasible, to achieve the infiltration, evapotranspiration, and/or harvesting/reuse of the 85th percentile 24-hour storm runoff event; any remaining runoff from impervious DMAs may then be directed to one or more bioretention facilities.

5. Source Controls: Permanent and/or operation source control measures as described in this ordinance shall be incorporated into the project design.

6. Storm Water Treatment Measures and Baseline Hydromodification Management Measures: After implementation of site design measures, remaining runoff from impervious DMAs must be directed to one or more facilities designed to infiltrate, evapotranspire, and/or bioretain the amount of runoff determined from numeric sizing criteria for storm water retention and treatment. The facilities must be demonstrated to be at least as effective as a bioretention system with the following design parameters:

a. Maximum surface loading rate of 5 inches per hour, based on the flow rates calculated. A sizing factor of 4% of tributary impervious area may be used.

b. Minimum surface reservoir volume equal to surface area times a depth of 6 inches.

c. Minimum planting medium depth of 18 inches. The planting medium must sustain a minimum infiltration rate of 5 inches per hour throughout the life of the project and must maximize runoff retention and pollutant removal. A mixture of sand (60%-70%) meeting the specifications of American Society for Testing and Materials (ASTM) C33 and compost (30%-40%) may be used.

d. Subsurface drainage/storage (gravel) layer with an area equal to the surface area and having a minimum depth of 12 inches.

e. Underdrain with discharge elevation at top of gravel layer.

f. No compaction of soils beneath the facility, or ripping/loosening of soils if compacted.

g. No liners or other barriers interfering with infiltration.

h. Appropriate plant palette for the specified soil mix and maximum available water use.

7. Alternative Designs: Facilities, or a combination of facilities, of a different design than described in Section 9-12-10.D.6 may be permitted if all of the following measures of equivalent effectiveness are demonstrated:

a. Equal or greater amount of runoff infiltrated or evapotranspired;

b. Equal or lower pollutant concentrations in runoff that is discharged after biotreatment;

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c. Equal or greater protection against shock loadings and spills;

d. Equal or greater accessibility and ease of inspection and maintenance.

8. Allowed Variations for Special Site Conditions: The bioretention system design parameters in Section 9-12-1O.D.6 may be adjusted for the following special site conditions:

a. Facilities located within 10 feet of structures or other potential geotechnical hazards established by the geotechnical expert for the project may incorporate an impervious cutoff wall between the bioretention facility and the structure or other geotechnical hazard.

b. Facilities with documented high concentrations of pollutants in underlying soil or groundwater, facilities located where infiltration could contribute to a geotechnical hazard, and facilities located on elevated plazas or other structures may incorporate an impervious liner and may locate the underdrain discharge at the bottom of the subsurface drainage/storage layer (this configuration is commonly known as a "flow-through planter").

c. Facilities located in areas of high groundwater, highly infiltrative soils or where connection of underdrain to a surface drain or to a subsurface storm drain are infeasible, may omit the underdrain.

d. Facilities serving high-risk areas such as fueling stations, truck stops, auto repairs, and heavy industrial sites may be required to provide additional treatment to address pollutants of concern unless these high-risk areas are isolated from storm water runoff or bioretention areas with little chance of spill migration.

9. Exceptions to Requirements for Bioretention Facilities: If the use of bioretention or a facility of equivalent effectiveness is infeasible (due to construction constraints, not financial constraints), other types of biotreatment or media filters (such as tree-box-type biofilters or in-vault media filters) may be used for the following categories of Regulated Projects:

a. Projects creating or replacing an acre or less of impervious area, and located in a designated pedestrian-oriented commercial district (i.e., smart growth projects), and having at least 85% of the entire project site covered by permanent structures;

b. Facilities receiving runoff solely from existing (pre-project) impervious areas; and,

c. Historic sites, structures or landscapes that cannot alter their original configuration in order to maintain their historic integrity.

E. Hydromodification Management.

Projects that create and/or replace one acre or more of impervious surface are considered to be hydromodification management projects. A project that does not increase impervious surface area over the pre-project condition is not a hydromodification management project.

The post-project runoff from a hydromodification management project shall not exceed the estimated pre­ project flow rate for the 2-year, 24-hour storm. (Ord. 625, xx-xx-2015)

9-12-11: POST CONSTRUCTION OPERATION AND MAINTENANCE.

A. Maintenance Responsibility

Owners of property on which a regulated project has been developed shall agree to accept responsibility for the operation and maintenance of the on-site installed source control measures, treatment systems, and hydromodification controls. This agreement shall be in the form of a signed and notarized operation and maintenance agreement to be recorded in the Merced County Recorder’s Office; responsibility shall transfer to any successors in interest of the property.

Multi-parcel or multi-owner projects (gated communities, condominiums, etc.) shall operate and maintain any commonly owned source control measures, treatment systems, and hydromodification controls either through a homeowners association, through a condominium agreement, or other legally enforceable agreement or mechanism.

Source control measures, treatment systems, or hydromodification controls that are publicly-owned or built within the public rights of way shall be operated and/or maintained by the City or other public agency using funds levied on the development or redevelopment project in the form of assessment districts or other acceptable collection mechanism for the purpose of reducing runoff and mitigating pollutants as described in this ordinance. Owners of property on which a regulated project has been developed shall agree to and consent to these assessment fees as determined by the City at its sole discretion. This assessment district shall be recorded in the Merced County Recorder’s Office; responsibility shall transfer to any successors in interest of the property.

B. Inspection Authorization

The recorded operation and maintenance agreement shall include a provision authorizing the City to access the project site for the sole purpose of performing inspections of the installed treatment systems and hydromodification controls. (Ord. 625, xx-xx-2015)

9 -12-12 WATERCOURSE AND IRRIGATION CANAL PROTECTION

A. Every person owning, leasing property or otherwise controlling property ("owner") through which a watercourse or publicly owned irrigation and/or storm water canal or channel ("watercourse") originates or passes shall keep and maintain that part of the watercourse within the property free of trash, debris, and other obstacles that would pollute, contaminate, or significantly retard the flow of water through the watercourse. The owner shall not remove healthy bank vegetation beyond that actually necessary for maintenance, nor perform vegetation management in such a manner as to increase the

vulnerability of the watercourse to erosion. The owner shall be responsible for maintaining and stabilizing that portion of the watercourse that is within that owner’s property, within regulatory frameworks, to a reasonable standard as determined by the Director, in order to protect against erosion and degradation of the watercourse originating or passing through the property.

B. Every owner of property through which a watercourse originates or passes shall maintain existing privately owned structures within or adjacent to a watercourse, so that such structures will not become a hazard to the use, function, or physical integrity of the watercourse.

C. Every owner is responsible to comply with all laws, rules, and regulations of State or Federal agencies that may have jurisdiction over wetlands and waterways. Maintenance must be done in a manner that does not adversely impact waterway species. (Ord. 625, xx-xx-2015)

9-12-13 : CLEAN UP AND NOTIFICATION REQUIREMENTS.

A. All Persons in charge of a facility, activity, or development or responsible for emergency response for shall have personal responsibility to train the premise’s personnel and maintain notification procedures to assure immediate notification is provided to the City of any suspected, confirmed, or unconfirmed release of material, pollutants or waste creating a risk of discharge into the City’s storm drain system. As soon as any owner or operator has actual or constructive knowledge of any discharge which may result in pollutants entering the public storm drain system, such Person shall promptly take all necessary steps to ensure the discovery of the source and the extent and proceed with containment and cleanup of such discharge.

B. The owner or operator shall notify the Director or the City Engineer of the discharge in both of the following manners:

1. By telephone as soon as practical or by calling 9-1-1, if hazardous materials are involved; and

2. By written report identifying the discharge source, extent, pollutant, measures taken to mitigate the discharge, and preventative measures put into place to prevent a subsequent discharge. (Ord. 625, xx-xx-2015)

9-12-14 : AUTHORITY TO INSPECT, ESTABLISH SAMPLING DEVICES AND DIRECT TESTING AND MONITORING.

A. The Director shall have the authority to conduct reasonable inspections of facilities, activities, or developments described in this ordinance as may be deemed necessary to carry out the purpose of this chapter. Such inspections shall be conducted with the consent of the property owner and/or the Person possessing or controlling the property. If such consent cannot be obtained, an inspection shall be conducted pursuant to a court-issued inspection warrant. Such inspections may also be done in conjunction with routine inspections conducted by other public agencies such as emergency services or health department.

B. Authority to Sample and Establish Sampling Devices: With the consent of the owner or occupant or pursuant to an inspection warrant, any authorized Enforcement Officer may establish on any property such devices as are necessary to aid in the pursuit of the inquiry or in the recordation of the activities on­ site.

C. Requirement to Test or Monitor: Any authorized Enforcement Officer may require that any Person engaged in any activity and/or owning or operating any facility which has been determined to cause or contribute to storm water pollution or contamination, Unlawful Discharge, and/or discharge of non-storm water to the Storm Drain System, undertake such monitoring activities and/or analysis and

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furnish such reports as the officer may specify. The costs of these activities, analysis, and reports required shall be borne by the owner/operator of the facility and/or activity. (Ord. 625, xx-xx-2015)

9-12-15 : VIOLATION CONSTITUTING MISDEMEANORS.

Unless otherwise specified by this chapter, the violation of the provisions of this chapter shall constitute a misdemeanor. Any such violation constituting a misdemeanor, at the discretion of the authorized Enforcement Officer, may be charged and prosecuted as an infraction. (Ord. 625, xx-xx-2015)

9-12-16 : PENALTIES.

Upon conviction of a misdemeanor or an infraction, a Person shall be subject to payment of a fine, or imprisonment, or both.

Civil Penalties: In addition to any other enforcement authority contained in this chapter, the Director or City Engineer shall issue a civil citation to any Person who has violated, or continues to violate, any provision of this chapter or any related laws or regulations. A Person who violates any requirement of this chapter or any applicable NPDES stormwater discharge permit condition shall be civilly liable to the City of Livingston for a sum not to exceed ten thousand dollars ($10,000.00) per day per violation.

Criminal Penalties: A Person who willfully or negligently violates any provision of this chapter, or any related laws or regulations shall, upon conviction, be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed fifteen thousand dollars ($15,000.00) per day per violation and/or imprisonment for a period not to exceed six (6) months. (Ord. 625, xx-xx-2015)

9-12-17 : CONCEALMENT.

Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall be unlawful and punishable as a misdemeanor. (Ord. 625, xx-xx-2015)

9-12-18 : VIOLATION DEEMED A PUBLIC NUISANCE.

A. In addition to the penalties hereinbefore provided, any condition caused or permitted to exist in violation of any of the provisions of this chapter is a threat to the public health, safety, and welfare, and is declared and deemed a nuisance, and may be summarily abated and/or restored by any authorized Enforcement Officer, and/or civil action to abate, enjoin or otherwise compel the cessation of such nuisance may be taken by legal counsel.

B. The cost of such abatement and restoration shall be borne by the property owner and/or operator committing the violation, and the cost thereof shall be a lien upon and against any such property and such lien shall continue in existence until the same shall be paid. Ifthe lien is not satisfied by the owner of the property within three months, the property may be sold in satisfaction thereof in a like manner as other real property is sold under execution.

C. In any administrative or civil proceeding under this chapter in which the City prevails, the City shall be awarded all costs of suit and reasonable attorney fees. (Ord. 625, xx-xx-2015)

9-12-19 : CIVIL ACTIONS.

In addition to any other remedies provided in this section, this chapter may be enforced by civil action brought by the City. In any such action, the court may grant, as appropriate, any or all of the following remedies:

A. A temporary and/or permanent injunction.

B. Assessment of the violator/parcel owner for the costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and bringing legal action under this subsection.

C. Costs incurred in removing, correcting, or terminating the adverse effects resulting from the violation.

D. Compensatory damages for loss or destruction to water quality, wildlife, fish, and aquatic life. Assessments under this subsection shall be paid to the city to be used exclusively for costs associated with monitoring and establishing storm water discharge control systems and/or implementing or enforcing the provisions of this chapter. (Ord. 625, xx-xx-2015)

9-12-20 : ADMINISTRATIVE ENFORCEMENT POWERS.

A. Notice of Violation: Whenever the Director finds that a Person has violated a prohibition or failed to meet a requirement of this chapter, the Director may order compliance by written notice of violation to the responsible Person. Such notice may require without limitation:

1. The performance of monitoring, analyses, and reporting;

2. The elimination of illicit connections or discharges;

3. That violating discharges, practices, or operations shall cease and desist;

4. The abatement or remediation of storm water pollution or contamination hazards and the restoration of any affected property; and

5. The implementation of source control or treatment BMPs.

B. 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 established deadlines, the work will be done by the City or a contractor designated by the Director and the expense thereof shall be charged to the violator.

C. Upon a cease and desist order to stop, cleanup and abate a discharge:

1. A violator shall abate and clean up their discharge, spill, or pollutant release within 72 hours of notification; high risk spill should be cleaned up as soon as possible.

2. A violator shall complete abatement within 30 days of notification, for uncontrolled sources of pollutants that could pose an environmental threat;

3. If violator does not complete abatement within the required deadline, the Director shall provide a new deadline and notify the appropriate Regional Water Board when all parties agree that clean-up activities cannot be completed within the original timeframe and notify the appropriate Regional Water Board in writing within five business days of the determination that the timeframe requires revision. (Ord. 625, xx-xx-2015)

9-12-21 : APPEAL.

Notwithstanding the provisions of urgency abatement, any Person receiving a notice of violation may appeal the determination of the Director to the City Manager. The notice of appeal must be received by the City Manager within 15 days from the date of the notice of violation. Hearing on the appeal before the City Manager or his/her designee shall take place within 15 days from the date of the City’s receipt of the notice of appeal. The decision of the City Manager shall be final. (Ord. 625, xx-xx-2015)

9-12-22 : 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, within 10 days of the decision of the City Manager upholding the decision of the Director, then the City or a contractor designated by the Director shall, pursuant to a warrant issued by a court of competent jurisdiction, enter upon the subject’s private property and take any and all measures reasonably 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. (Ord. 625, xx-xx-2015)

9-12-23 : CHARGING COSTS OF ABATEMENT/LIENS.

A. Within 30 days after abatement of the nuisance by City, the Director shall notify the property owner of the property of the cost of abatement, including administrative costs, investigative costs, cost of testing, hearing costs, etc. The property owner may file a written protest objecting to the amount of the assessment with the City Clerk within 15 days. The City Clerk shall set the matter for public hearing by the city council. The decision of the city council shall be final.

B. If the amount due is not paid within 10 days of the decision of the City Council or the expiration of the time in which to file an appeal under this section, the charges shall become a special assessment against the property and shall constitute a lien on the property for the amount of the assessment. A copy of the resolution shall be turned over to the county auditor so that the auditor may enter the amount of the assessments against the parcel as it appears on the current assessment roll, and the tax collector shall include the amount of the assessment on the bill for taxes against the parcel of land. (Ord. 625, xx-xx- 2015)

9-12-24 : URGENCY ABATEMENTS.

The Director is authorized to require immediate abatement of any violation of this chapter which constitutes an immediate threat to the health, safety or well being of the public. Ifany such violation is not abated immediately as directed by the Director, 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 the chapter. (Ord. 625, xx-xx-2015)

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9-12-25 : COMPENSATORY ACTION.

In lieu of enforcement proceedings, penalties, and remedies authorized by this chapter, the Director may impose upon a violator alternative compensatory actions, such as storm drain stenciling, attendance at compliance workshops, creek cleanup, etc. (Ord. 625, xx-xx-2015)

9-12-26 : 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 rule or regulation issued pursuant to this chapter may also be in violation of the Clean Water Act and/or 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 this potential liability. (Ord. 625, xx­ xx-2015)

9-12-27 : NON-EXCLUSIVITY OF REMEDIES.

Remedies under this chapter are in addition to and do not supersede or limit any and all other remedies, civil or criminal. The remedies provided for herein shall be cumulative and not exclusive. (Ord. 625, xx­ xx-2015)

9-12-28 : CONFLICTS WITH OTHER LAWS.

In the event of any conflict between this chapter and any federal or state law, regulation, permit, or other ordinance of the City of Livingston, the requirements which establishes the stricter standard shall govern. To the extent permitted by law, nothing in this chapter shall preclude enforcement of any other applicable law. (Ord. 625, xx-xx-2015)

SECTION 2. Severability. Ifany provision of this Ordinance or the application thereof to any Person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Ordinance which can be given effect without the invalid provision or application. To this end, the provisions of the Ordinance are severable. This City Council hereby declares that it would have adopted this Ordinance irrespective of the invalidity of any particular portion thereof.

SECTION 3. Effective Date. This Ordinance shall become effective thirty (30) days after its final passage and adoption.

Introduced:

Passed and Adopted:

RODRIGO ESPINOZA, Mayor

of the City of Livingston

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ATTEST:

State of California ) County of Merced ) City of Livingston )

I hereby certify that the foregoing Ordinance was duly introduced at a Regular Meeting of the City Council of the City of Livingston on the _ day of 2015, and was passed and adopted at a Regular Meeting of the City Council of the City of Livingston this _ day of 2015, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ANTONIO SILVA, City Clerk of the City of Livingston