The Federal Clean Water Act (CWA) was enacted in 1972 and directs the U.S. Environmental Protection Agency (EPA) to develop regulations and programs to improve the water quality of the nation's waterways. The Act also requires states to identify and publish a list of waterways that are impaired due to stormwater runoff from existing development. Two of these are partially in Essex - Indian Brook and Sunderland Brook. The remaining streams are currently "unimpaired" and a key objective of the Town stormwater program is to maintain good water quality in those streams and to prevent those streams from becoming impaired.
EPA developed regulations in 1990 under the National Pollutant Discharge Elimination System (NPDES) that address the water quality impacts of stormwater. The regulations apply to land developments and "municipal separate storm sewer systems" (MS4's). EPA imposed these stormwater regulations on large communities in 1990 (Phase I). In 1999, EPA expanded these mandates to smaller municipalities under their Phase II program. In Chittenden County, the affected MS4 Phase II entities are: Burlington, Colchester, Essex, Essex Junction, Shelburne, South Burlington, Williston, Winooski, the Burlington International Airport, the University of Vermont and the VT Agency of Transportation. Recently, the Towns of Milton, Jericho and Underhill have been added.
The objective of the USEPA Phase II program is for the municipalities to develop effective, site-specific storm water management programs that reduce the discharge of pollutants from the MS4s to the maximum extent possible. The Town of Essex has incorporated the following elements into its stormwater management program:
The Town's program has the following goals:
§10.20.052 Discharge Prohibitions.
Prohibition of illicit discharges. No person shall discharge or cause to be discharged into the municipal storm drain system or watercourses any materials including, but not limited to, pollutants or waters containing any pollutants that cause or contribute to a violation of applicable water quality standards, other than storm water.
The commencement, conduct, or continuance of any illicit discharge to the storm drain system is prohibited except as described herein. The following discharges are exempt from discharge prohibitions established by this sub-chapter:
A. Flushing of water line or other potable water sources (except when a particular substance in the water is subject to control by State or federal regulation and then the discharge is still exempt if within the limits of accept-ability for the controlled substance).
B. Landscape irrigation or lawn watering (unless such watering results in a direct dis-charge and the discharge is identified as containing pollutants or chemicals that are required to be controlled by state or federal regulation).
C. Diverted stream flows.
D. Rising or pumped ground water, providing such groundwater is not contaminated or polluted.
E. Ground water infiltration to storm drains.
F. Foundation or footing drains (not including active ground water dewatering systems) containing no contaminants or pollutants.
G. Air conditioning condensation (except when control of a particular substance in the water is by federal regulation and then the dis-charge is still exempt if within the limits of acceptability for the controlled substance).
H. Uncontaminated springs.
I. Non-commercial washing of vehicles (unless such watering results in a direct dis-charge and the discharge is identified as containing pollutants or chemicals that are required to be controlled by state or federal regulation).
J. Natural riparian habitat or wetland flows.
K. Swimming pools (if de-chlorinated– typically less than one PPM chlorine and except when control of a particular substance in the water is by State or federal regulation and then the discharge is still exempt if within the limits of acceptability for the controlled substance).
L. Firefighting activities, not including the cleanup of spills or accidents involving contaminated material such as oil spills or hazardous wastes.
M. Any other water source not containing pollutants.
N. Discharges specified in writing by an authorized representative of the Town of Essex as being necessary to protect public health and safety.
O. Dye testing is an allowable discharge, if approved by the Town Engineer.
The prohibition shall not apply to any non-storm water discharge permitted under an NPDES permit, waiver, or waste discharge order issued for the dis-charge and administered under the authority of the US EPA, provided that the discharger is in full compliance with all requirements of the permit, waiver, or order and other applicable laws and regulations, and provided that written approval has been granted by the Town for any discharge to the storm drain system.
Prohibition of illicit connections. The construction, use, maintenance, or continued existence of illicit connections to the storm drain system is prohibited.
This prohibition expressly includes, without limitation, illicit connections made in the past, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection.
A person is in violation of this sub-chapter if the person connects a line conveying sewage, laundry waste or other forms of gray water to the MS4 or allows such a connection to continue.
§10.20.053 Suspension of MS4 Access.
Suspension due to illicit discharges in emergency situations. The Town may, without notice, suspend MS4 discharge access to a person when such suspension is necessary to stop an actual or threatened dis-charge that presents or may present imminent and substantial danger to the environment, or to the health or welfare of persons, or to the MS4 or waters of the United States. If the violator fails to comply with a suspension order issued in an emergency, the Town Engineer may take such steps as deemed necessary to prevent or minimize damage to the MS4 or water of the United States, or to minimize danger to persons.
A person commits a violation of this Ordinance if the person reinstates MS4 access to premises terminated pursuant to this section, without the prior approval of the Town Engineer.
§10.20.054 Industrial or Construction Activity Discharges.
Any person subject to an industrial multi-sector permit or other separately-issued storm water permit by the Town, State or EPA shall comply with all pro-visions of such permit. Proof of compliance with said permit may be required in a form acceptable to the Town prior to the allowing of discharges to the MS4.
§10.20.055 Monitoring of Discharges.
Applicability. This section applies to all facilities that have storm water discharges associated with industrial activity, including construction activity.
Access to facilities. Authorized representatives of the Town shall be permitted to enter and inspect facilities subject to regulation under this chapter as often as may be necessary to determine compliance with this chapter. If a discharger has security measures in force that require proper identification and clearance before entry into its premises, the dis-charger shall make the necessary arrangements to allow access to authorized representatives of the Town.
Facility operators shall allow the authorized Town representative ready access to all parts of the premises for inspection, sampling, examination, and copying of records that must be kept under the conditions of an NPDES or State permit to discharge storm water, and the performance of any additional duties as defined by state and federal law.
The Town shall have the right to require the dis-charger to install on any permitted facility such de-vices necessary in the opinion of the Town Engineer to conduct monitoring and/or sampling of the facility’s storm water discharge at the expense of the dis-charger.
The facility’s sampling and monitoring equipment shall be maintained at all times in a safe and proper operating condition by the discharger at its own expense. All devices used to measure storm water flow and quality shall be calibrated to ensure their accuracy.
Any temporary or permanent obstruction to safe and easy access to the facility to be inspected and/or sampled shall be promptly removed by the operator at the written or oral request of the authorized Town representative and shall not be replaced. The costs of clearing such access shall be borne by the operator.
Unreasonable delay in allowing the authorized Town representative access to a permitted facility is a violation of a storm water discharge permit and of this Ordinance. A person who is the operator of a facility with a NPDES permit to discharge storm water associated with industrial activity commits a violation of this Ordinance if the person denies the authorized Town representative reasonable access to the permitted facility for conducting any activity authorized or required by this chapter.
If the authorized Town representative has been refused access to any part of the premises from which storm water is discharged, such refusal shall be a violation of this Ordinance. The authorized Town representative may secure warrants from the applicable court having jurisdiction in cases where access is refused.
§10.20.056 Requirement to Prevent, Control, and Reduce Storm Water Pollutants.
The Town has adopted best management practices for any activity, operation, or facility that may cause or contribute to pollution or contamination of storm water, the storm drain system, or waters of the United States through the State of Vermont Phase II Storm-water Permit. The owner or operator of a commercial or industrial establishment shall provide, at their expense, reasonable protection from accidental discharge of prohibited materials or other wastes into the municipal storm drain system or water-courses through the use of applicable structural and non-structural BMP’s. Further, any person responsible for a property or premise that is, or may be, the source of an illicit discharge may be required to implement, at said person’s expense, additional structural and non-structural BMP’s to prevent the further discharge of pollutants to the MS4. Compliance with all terms and conditions of a valid Multi-sector General permit authorizing the discharge of storm water associated with industrial activity, to the extent practicable, shall be deemed compliance with the provision of this section. These BMP’s shall be part of a storm water pollution prevention plan (SWPP) as necessary for compliance with requirements of the NPDES permit.
§10.20.057 Watercourse Protection.
Every person owning property through which an intermittent or continuously flowing watercourse passes, or such person’s lessee, shall not deposit in the watercourse or on the land impacted by runoff to the watercourse trash, debris, cut brush, grass or wood, pet waste and other obstacles that would pol-lute, contaminate, or significantly alter the natural flow of water through the watercourse. Natural blockages of the stream by wildlife are considered not the responsibility of the landowner or lessee. In addition, the owner or lessee 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.
Riparian buffers established as part of development approval and required by Town regulations shall be maintained by the developer and all other subsequent property owners or associations within the development.
§10.20.058 Notification of Spills.
Notwithstanding other requirements of law, as soon as any person responsible for a facility or operation, or responsible for emergency response for a facility or operation has information of any known or suspected release of materials that are resulting or may result in illegal discharges or pollutants dis-charging into storm water, the storm drain system, or waters of the United States from such facility or operation, said person shall take all necessary steps to ensure the discovery, containment, and cleanup of such release. In the event of such a release of hazardous materials said person shall immediately notify emergency response agencies and the Town Engineer of the occurrence. In the event of a release of non-hazardous materials, said person shall notify the Town Engineer no later than the next business day. Notifications in person or by phone shall be con-firmed by written notice addressed and mailed to the Town Engineer within 3 business days of the phone or in-person notice. If the discharge of prohibited materials emanates from a commercial or industrial establishment, the owner or operator of such establishment shall also retain an on-site written record of the discharge and the actions taken to prevent its recurrence. Such records shall be retained for at least 3 years.
§10.20.070 Development Storm Water Management
§10.20.071 Development Storm Water Management - General.
This subchapter establishes minimum storm water management requirements for new development/redevelopment to augment existing Town development regulations and to provide controls to protect and safeguard the general health, safety, and welfare of the public. This subchapter:
A. Minimizes increases in storm water runoff from new development/redevelopment to reduce flooding, siltation, and streambank erosion.
B. Minimizes increases in non-point source pollution caused by storm water runoff from development that would otherwise degrade water quality.
C. Minimizes the total annual volume of surface water runoff that flows from any specific site during and following development to not exceed the predevelopment hydro-logic regime to the maximum extent practicable.
D. Reduces storm water runoff rates and volumes, soil erosion, and non-point source pollution, wherever possible, through storm water management controls and to ensure that these management controls are properly maintained and pose no threat to public safety.
§10.20.081 Design.
All storm water Best Management Practices (BMP’s) shall be designed to minimize the need for maintenance and reduce the chance of failure in accordance with the design guidelines outlined in the most current state storm water management manual.
Storm water easements and covenants shall be provided by the property owner for access for facility inspections and maintenance. Easements and covenants shall be recorded in the Town Land Records for any storm water discharge permit.
§10.20.082 Routine Maintenance.
All storm water BMP’s shall be maintained ac-cording to the measures outlined in the current state storm water management manual or as directed in approval documents issued by the Town specific to the permit.
§10.20.083 Maintenance Easement.
Prior to the issuance of any permit that has a storm water management facility as one of the requirements of the permit, the property owner of the site must execute a maintenance access agreement that shall be binding on all subsequent owners of land served by the storm water management facility. The agreement shall provide for access to the facility at reasonable times for periodic inspection by the Town and for regular or special assessments of property owners to ensure that the facility is maintained in proper working condition to meet design standards and any other provisions established by this chapter. The easement agreement shall be recorded in the Town Land Records.
§10.20.084 Maintenance Covenants.
Maintenance of all storm water management facilities shall be ensured through the creation of a formal maintenance covenant that must be approved by the Town and recorded in the Town Land Records prior to final plan approval. As part of the covenant, a schedule shall be developed for when and how of-ten maintenance will occur to ensure proper function of the storm water management facility. The covenant shall include plans for periodic inspections to ensure proper performance of the facility between scheduled cleanouts.
The Town, in lieu of a maintenance covenant, may accept dedication of an existing or future storm water management facility for maintenance, provided such facility meets all the requirements of this chapter, includes adequate and perpetual access and sufficient areas, by easement or otherwise, for inspection and regular maintenance, and the components of the system are entirely within a Town right-of-way or Town easement. All storm water management facilities must undergo, at a minimum, an annual inspection to document maintenance and repair needs and ensure compliance with the requirements of this chapter and accomplishment of its purposes. These needs may include: removal of silt, litter, and other debris from all catch basins, inlets and drainage pipes, grass cutting and vegetation removal, and necessary replacement of landscape vegetation. Any identified maintenance needs must be addressed in a timely manner, as determined by the Town, and the inspection and maintenance requirement may be in-creased as deemed necessary to ensure proper functioning of the storm water management facility.
§10.20.085 Maintenance Inspections.
Inspection programs. Inspection programs may be established on any reasonable basis including, but not limited to: routine inspections; random inspections; inspections based on complaints or other notice of possible violations; inspection of drainage basins or areas identified as higher than typical sources of sediment or other contaminants or pollutants; inspections of businesses or industries of a type associated with higher than usual discharges of contaminants or pollutants or with discharges of a type that are more likely than the typical discharge to cause violations of state or federal water or sediment quality standards or the NPDES storm water permit; and, joint inspections with other agencies inspecting under environmental or safety laws. Inspections may include, but are not limited to: reviewing maintenance and repair records; sampling discharges, surface water, groundwater, and material or water in drainage control facilities; and, evaluating the condition of drainage control facilities and other storm water treatment practices.
Right-of-entry for inspection. When any new drainage control facility is installed on private property, or when any new connection is made between private property and a public drainage control system, sanitary sewer or combined sewer, the property owner shall grant to the Town the right to enter the property at reasonable times and in a reasonable manner for the purpose of inspection. This includes the right to enter a property when it has a reasonable basis to believe that a violation of this chapter is occurring or has occurred, and to enter when necessary for abatement of a public nuisance or correction of a violation of this chapter.
§10.20.086 Records of Installation and Maintenance Activities.
Parties responsible for the operation and maintenance of a storm water management system including but not limited to catch basins, pipes and treatment systems shall make records of the installation and of all maintenance and repairs, and shall retain the re-cords for at least 5 years. These records shall be made available to the Town during inspection of the facility and at other reasonable times upon request.
§10.20.087 Failure to Maintain Practices.
If a responsible party fails or refuses to meet the requirements of the maintenance covenant, the Town after reasonable notice may correct a violation of the design standards or maintenance needs by performing all necessary work to place the facility in proper working condition. In the event that the storm water management facility becomes a danger to public safety or public health, the Town shall notify the party responsible for maintenance of the storm water management facility in writing. Upon receipt of that notice, the responsible person shall have 30 days to effect maintenance and repair of the facility in an approved manner. After proper notice, the Town may assess the owner of the facility for the cost of repair work and any penalties, and the cost of the work shall be a lien upon the real estate furnished with such service in the same manner and to the same effect as taxes are a lien upon real estate under section 5061 of Title 32 and shall be an assessment enforceable under the procedures set forth in section 3504 of Title 24.
§10.20.100 Waivers.
Every applicant shall provide for storm water management as required by this chapter, unless a written request is submitted to the Town Selectboard to waive applicable portions of this Ordinance.
Input from the Town Engineer shall be obtained as to whether there is a technical basis for the granting of a waiver.
Minimum requirements for storm water management may be waived in whole or in part provided at least one of the following conditions applies:
A. It can be demonstrated that the proposed development will not impair attainment of the objectives of this chapter.
B. Alternative minimum requirements for on-site management of storm water discharges have been established in a storm water management plan approved by the Town.
C. Provisions are made to manage storm water by an off-site facility. The off-site facility is required to be in place, designed and adequately sized to provide a level of storm water control that is equal to or greater than that which would be afforded by on-site practices and there is a legally obligated entity responsible for long-term operation and maintenance of the storm water practice.
D. The Town finds meeting the minimum on-site management requirements is not feasible due to the natural or existing physical characteristics of a site.
E. Non-structural practices will be used on the site that reduce: the generation of storm water from the site, the size and cost of storm water storage, and the pollutants generated at the site. These non-structural practices are explained in detail in the current state design manual and the amount of credit available for using such practices shall be determined by the Town.
In instances where one of the above conditions applies, the Town may grant a waiver from strict compliance with this chapter, as long as acceptable mitigation measures are provided. However, to be eligible for a waiver, the applicant must demonstrate to the satisfaction of the Town that the waiver will not result in any of the following impacts to down-stream waterways: deterioration of existing culverts, bridges, dams, and other structures; degradation of biological functions or habitats; accelerated stream bank or streambed erosion or siltation; or increased threat of flood damage to public health, life, and property.
Furthermore, where compliance with minimum requirements for storm water management is waived, the applicant shall satisfy the minimum requirements by meeting one of the following mitigation measures approved by the Town.
Mitigation measures may include, but are not limited to, the following: the purchase and donation of privately owned lands, or the grant of an easement to be dedicated for preservation and/or re-forestation (these lands should be located adjacent to the stream corridor to provide permanent buffer areas to protect water quality and aquatic habitat); the creation of a storm water management facility or other drainage improvements on previously developed properties, public or private, that currently lack storm water management facilities designed and constructed pursuant to the purposes and standards of this chapter; monetary contributions (fee-in-lieu) to fund storm water management activities such as research and studies.
A. Where the Town waives all or part of the minimum storm water management requirements, or where the waiver is based on the provision of adequate storm water facilities provided downstream of the proposed development, the applicant shall be required to pay a fee based on the impact of the impervious area created in an amount deter-mined by the Town.
B. In lieu of a monetary contribution, an applicant may obtain a waiver of the required storm water management practice by entering into an agreement with the Town for the granting of an easement or the dedication of land by the applicant, for the construction of an off-site storm water management facility. The agreement shall be entered into by the applicant and the Town prior to the re-cording of a plat(s) or, if no record of a plat(s) is required, prior to the issuance of any Zoning Permit for construction.
§10.20.110 Enforcement.
§10.20.111 Stop-work Order; Revocation of permit.
Should any person holding a development storm water permit or erosion and sediment control permit pursuant to this chapter, violate the terms of the permit or implement site development in such a manner as to materially adversely affect the health, welfare, or safety of persons residing or working in the neighborhood or development site, the Town may suspend or revoke the storm water permit.
§10.20.112 Violation and Penalty.
No person shall construct, enlarge, alter, repair, or maintain any grading, excavation, fill, or cause the same to be done, contrary to or in violation of any terms of this Ordinance. Any person violating any of the provisions of this Ordinance or a permit issued hereunder shall be subject to a civil penalty of Five Hundred Dollars ($500.00) for each violation of this Civil Ordinance.
Each day that any violation of any of the provisions of this Ordinance or a permit issued hereunder continues shall constitute a separate offense.
Any person, partnership, or corporation convicted of violating any of the provisions of this chapter shall bear the expense of any required restoration. The Town may recover all attorney’s fees, court costs, and other expenses associated with enforcement of this chapter, including sampling and monitoring expenses.
§10.20.113 Notice of Violation.
Whenever the Town finds that a person violates a prohibition or fails to meet a requirement of this Ordinance or any permit issued hereunder, the Town may order compliance by written notice of violation to the responsible person. Such notice may require without limitation: the performance of monitoring, analyses, and reporting; the elimination of illicit connections or discharges; that violating discharges, practices, or operations shall cease and desist; the abatement or remediation of storm water pollution or contamination hazards and the restoration of any affected property; payment of a fine to cover administrative and remediation costs; and, the implementation of source control or treatment BMP’s.
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 re-mediate or restore within the established deadline, the work will be done by the Town or its designated contractor and the expense thereof shall be charged to the violator.
§10.20.114 Appeal of Notice of Violation.
Any person receiving a notice of violation may appeal the determination of the authorized representative of the Town to the Selectboard. The notice of appeal must be received by the authorized representative of the Town or the Town Clerk within 5 business days from the date of the notice of violation. After public notice, the Selectboard shall conduct a hearing on the appeal. The hearing shall take place within 30 calendar days of the date of receipt of the notice of appeal. The decision of the Town Selectboard shall be final, subject to appeal procedures under Vermont Statutes.
§10.20.115 Enforcement Measures after Appeal.
If the violation has not been corrected pursuant to the requirements set forth in the notice of violation or, in the event of any appeal, within 10 business days of the decision of the Town upholding the violation, then representatives of the Town shall be authorized to enter upon the subject property and take any and all measures necessary to abate the violation and/or restore the property. It shall be unlawful for any person, owner, agent or person in possession of any premises to refuse to allow the Town to enter upon the premises for the purposes set forth above.
§10.20.116 Cost of Abatement of the Violation.
Within 30 calendar days after abatement of the violation, the property owner shall be notified of the cost of abatement, including administrative costs. The property owner may file a written protest objecting to the amount of the assessment within 10 calendar days. If the amount due is not paid within a timely manner as determined by the decision of the Town or by the expiration of the time in which to file an appeal, the charges shall become a lien upon the real estate furnished with such service in the same manner and to the same effect as taxes are a lien upon real estate under section 5061 and Title 32 and shall be an assessment enforceable under the procedures set forth in section 3504 of Title 24.
Any person violating any of the provisions of this section shall become liable to the Town for the cost of abating such violation. Interest at the legal percentage rate established by State Statute shall be assessed on the balance beginning on the 1st day of the 1st month following discovery of the violation.
§10.20.117 Injunctive Relief.
It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this Ordinance or any permit issued here-under. If a person has violated or continues to violate the provisions of this chapter, the Town may petition for an injunction restraining the person from activities that would create further violations or compelling the person to perform abatement or remediation of the violation.
§10.20.118 Violations Deemed a Public Nuisance.
In addition to the enforcement processes and penalties provided, any condition caused or permitted to exist in violation of any of the provisions of this Ordinance or any permit issued hereunder is a threat to public health, safety, and welfare, and is declared and deemed a nuisance, and may be summarily abated or restored at the violator’s expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be taken.