ORDINANCE NO. 2005-1
AN ORDINANCE CONCERNING ILLICIT STORMWATER
DISCHARGE
WHEREAS, the County is required by state and federal law, and
as a condition of its State of Colorado stormwater discharge permit,
to establish by ordinance methods for controlling the introduction of pollutants
into the storm drain system, in order to protect and enhance the water quality
of the state’s watercourses, water bodies, and wetlands in a manner pursuant to
and consistent with the State and Federal Clean Water Act; and
WHEREAS, §18-4-511, C.R.S., makes it a crime to place any foreign substance
whether solid or liquid into any body of water or watercourse; and
WHEREAS, §30-15-401(1)(a)(V), C.R.S., provides that, in addition to the
authority given counties under §18-4-511, C.R.S., above, the Board of County
Commissioners of Boulder County is authorized to do all acts and make all
regulations which may be necessary or expedient for the promotion of health or
the suppression of disease, including the authority to restrain, fine, and
punish persons for dumping rubbish, including trash, junk and garbage on public
or private property; and
WHEREAS, "public or private property" is defined at §18-4-511, C.R.S., to
include "waters and watercourses"; and
WHEREAS, §16-13-305(1)(e) makes any unlawful pollution or contamination of
any surface or subsurface waters in this state a Class 3 Public Nuisance; and
WHEREAS, this ordinance is necessary to protect the health, safety, and
general welfare of the citizens of Boulder County through the regulation of non-stormwater
discharges to the storm drainage system.
NOW, THEREFORE, BE IT ORDAINED by the Board of County
Commissioners of Boulder County:
SECTION 1. PURPOSE/INTENT.
The objectives of this ordinance are:
To regulate the contribution of
pollutants to the municipal separate storm sewer system (MS4) by
stormwater discharges by any user
To prohibit Illicit Connections and Discharges to the
municipal separate storm sewer system
To establish procedures to carry out the inspection,
surveillance and monitoring necessary to ensure compliance with this
ordinance
To promote public awareness of the hazards involved
in the improper discharge of trash, yard waste, lawn chemicals, pet
waste, wastewater, grease, oil, petroleum products, cleaning products,
paint products, hazardous waste, sediment and other pollutants into the
storm drainage system.
SECTION 2.
DEFINITIONS.
For the purposes of this ordinance, the
following shall mean:
Authorized Enforcement Agency
means Boulder County Public Health.
Best Management Practices (BMPs)
means the schedules of activities, prohibitions of practices, general good house
keeping practices, pollution prevention and educational practices, maintenance
procedures, and other management practices to prevent or reduce the discharge of
pollutants directly or indirectly to stormwater, receiving waters, or stormwater
conveyance systems. BMPs also include treatment practices, operating procedures,
and practices to control site runoff, spillage or leaks, sludge or water
disposal, or drainage from raw materials storage.
Construction Activity
means activities including but not limited to clearing and grubbing, grading,
excavating, and demolition.
Health Officer for
Boulder County means the Executive Director of Boulder County Public Health.
Illegal Discharge
means any direct or indirect non-stormwater discharge to the storm drain system,
except as exempted in Section 6.C of this ordinance.
Illicit Connection
is defined as either of the following: Any drain or conveyance, whether on the
surface or subsurface, which allows an illegal discharge to enter the storm
drain system, including but not limited to any conveyance which allows any
non-stormwater discharge including sewage, process wastewater, and wash water to
enter the storm drain system, and any connection to the storm drain system from
indoor drains, sump pumps and sinks, regardless of whether said drain or
connection had been previously allowed, permitted, or approved by an authorized
enforcement agency; or any drain or conveyance connected from a commercial or
industrial land use to the storm drain system which has not been documented in
plans, maps, or equivalent records and approved by an authorized enforcement
agency.
Hazardous Material
means any material, including any substance, waste, or combination thereof,
which because of its quantity, concentration, or physical, chemical, or
infectious characteristics may cause, or significantly contribute to, a
substantial present or potential hazard to human health, safety, property, or
the environment when improperly treated, stored, transported, disposed of, or
otherwise managed.
Mobile Washing Operation
is a commercial activity involving power washing, steam cleaning, and any other
method of mobile cosmetic cleaning of, by way of example, the following:
vehicles, fabric, pets and/or exterior surfaces.
MS4 means a
conveyance or system of conveyances (including roads with drainage systems,
municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or
storm drains):
Owned or operated by a state, city, town, county, district,
association, or other public body (created by or pursuant to state law)
having jurisdiction over disposal of sewage, industrial wastes,
stormwater, or other wastes, including special districts under state law
such as a sewer district, flood control district or drainage district,
or similar entity, or a designated and approved management agency under
section 208 of the Clean Water Act that discharges to state waters;
Designed or used for collecting or conveying stormwater;
Which is not a combined sewer; and
Which is not part of a Publicly Owned Treatment Works (POTW).
A regulated municipality’s permit will cover all areas of the municipality,
unless explicitly excluded due to being outside of the urbanized area or
designated area for the permit.
National Pollutant Discharge Elimination
System (NPDES) Stormwater Discharge Permit means a
permit issued by EPA (or by a State under authority delegated pursuant to 33 USC
§ 1342(b) i.e. Colorado Discharge Permit System) that authorizes the discharge
of pollutants to waters of the United States, whether the permit is applicable
on an individual, group, or general area-wide basis.
Non-Stormwater Discharge
means any discharge to the storm drain system that is not composed entirely of
stormwater.
Person means any
individual, association, organization, partnership, firm, corporation or other
entity recognized by law and acting as either the owner or as the owner's agent.
Pollutant means
anything, which causes or contributes to pollution. Pollutants may include, but
are not limited to: paints, varnishes, and solvents; oil and other automotive
fluids; non-hazardous liquid and solid wastes; yard wastes; refuse, rubbish,
garbage, litter, or other discarded or abandoned objects; accumulations that may
cause or contribute to pollution; floatables; pesticides, herbicides, and
fertilizers; hazardous substances and wastes; sewage, fecal coliform and
pathogens; dissolved and particulate metals; animal wastes; wastes and residues
that result from constructing a building or structure; wastes and residues that
result from mobile washing operations; noxious or offensive matter of any kind,
and any soil, rock, and any type of landscaping material.
Premises means any
building, lot, parcel of land, or portion of land whether improved or
unimproved, including adjacent sidewalks and parking strips.
Storm Drainage System:
refer to MS4 definition.
Stormwater means any
surface flow, runoff, and drainage consisting entirely of water from any form of
natural precipitation.
Stormwater Pollution Prevention Plan or
Stormwater Management Plan means a document which
describes the Best Management Practices and activities to be implemented by a
person or business to identify sources of pollution or contamination at a site
and the actions to eliminate or reduce pollutant discharges to Stormwater,
Stormwater Conveyance Systems, and/or Receiving Waters to the Maximum Extent
Practicable.
Threatened Discharge
means a condition creating a substantial probability of harm, when the
probability and potential extent of harm make it reasonably necessary to take
immediate action to prevent, reduce or mitigate damages to persons, property or
natural resources.
Watercourse means a
natural or artificial channel through which stormwater or floodwater can flow,
either regularly or infrequently.
Waters of the State of Colorado (State waters)
means any and all surface waters that are contained in or flow in or through the
state of Colorado. The definition includes all watercourses, even if they are
usually dry.
SECTION 3. APPLICABILITY.
This ordinance shall apply to all water entering the storm
drain system generated on any developed or undeveloped lands in unincorporated
Boulder County, unless explicitly exempted by an authorized enforcement agency.
SECTION 4. RESPONSIBILITY FOR ADMINISTRATION.
Boulder County Public Health shall administer,
implement, and enforce the provisions of this ordinance. Any powers granted or
duties imposed upon the authorized enforcement agency may be delegated in
writing by the Health Officer of the authorized enforcement agency to persons or
entities acting in the beneficial interest of or in the employ of the agency.
SECTION 5. ULTIMATE
RESPONSIBILITY.
The standards set forth herein and promulgated
pursuant to this ordinance are minimum standards; therefore this ordinance does
not intend nor imply that compliance by any person will ensure that there will
be no contamination, pollution, nor unauthorized discharge of pollutants.
SECTION 6. DISCHARGE
PROHIBITIONS, EXEMPTIONS AND REQUIREMENTS.
A. Prohibition of
Illegal Discharges
1) No person shall discharge or cause to
be discharged into the municipal storm drain system or watercourses any
pollutants or waters containing any pollutants that cause or contribute to a
violation of applicable water quality standards, other than stormwater.
2) It shall be unlawful to cause
pollutants to be deposited in such a manner or location as to constitute a
threatened discharge into MS4 or waters of the State. Pollutants that are no
longer contained in a pipe, tank or other container are considered to be
threatened discharges unless they are actively being cleaned up.
B. Prohibition of Illicit Connections
1) The construction, use, maintenance or continued
existence of illicit connections to the storm drain system is prohibited.
2) 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.
3) A person is considered to be in
violation of this ordinance if the person connects a line conveying sewage
to the MS4, or allows such a connection to continue.
C. Exemptions
The commencement, conduct or continuance
of any illegal discharge to the storm drain system is prohibited except as
described as follows:
The following discharges are exempt from
the discharge prohibitions established by this
ordinance when properly managed: water line flushing or other potable water
sources, landscape irrigation or lawn watering, diverted stream flows,
rising ground water, uncontaminated ground water infiltration to storm
drains, uncontaminated pumped ground water, foundation or footing drains,
crawl space pumps, air conditioning condensation, springs, non-commercial
washing of vehicles, natural riparian habitat or wetland flows, swimming
pools (if dechlorinated - typically less than one PPM chlorine), fire
fighting activities, and any other water source not containing pollutants.
Agricultural irrigation activities, and
road maintenance activities performed by state or local governments are
exempt from the discharge prohibitions established by this ordinance
provided that BMPs or standardized industry practices are followed.
3) Discharges specified in writing by the
authorized enforcement agency as being necessary to protect public health
and safety.
4) Dye testing is an allowable discharge,
but requires a verbal notification to the authorized enforcement agency
24 hours prior to the time of the test.
5) The discharge prohibition shall also
not apply to any non-stormwater discharge permitted under an NPDES permit,
waiver, or waste discharge order issued to the discharger and administered
under the authority of the Federal Environmental Protection Agency, 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 for any discharge to the
storm drain system.
D.
Requirements Applicable to Potential Dischargers
1) Watercourse Protection. Every person
owning property through which a watercourse passes, or such person's lessee,
shall keep and maintain that part of the watercourse within the property
free of trash, debris, excessive vegetation, and other obstacles that would
pollute, contaminate, or significantly retard the flow of water through the
watercourse. Irrigation structures themselves are excepted.
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.
2) Minimization of Irrigation Runoff. A discharge of irrigation water
that is of sufficient quantity to cause a concentrated flow in the storm
drainage system is prohibited. Irrigation systems shall be managed to reduce
the discharge of water from a site.
3) Cleaning of Paved Surfaces Required. The owner of any paved parking
lot, street or drive shall clean the pavement as required to prevent the
buildup and discharge of pollutants. The visible buildup of mechanical
fluid, waste materials, sediment or debris is a violation of this ordinance.
Paved surfaces shall be cleaned by dry sweeping, wet vacuum sweeping,
collection and treatment of wash water or other methods in compliance with
this Ordinance.
4) Mobile Washing Operations. Mobile washing operations shall not
discharge to the storm drainage system in violation of this Ordinance.
5) Maintenance of Equipment. Any leak or spill related to equipment
maintenance in an outdoor, uncovered area should be contained to prevent the
potential release of pollutants.
6) Pesticides, Herbicides and Fertilizers. Pesticides, herbicides and
fertilizers shall be applied in accordance with manufacturer recommendations
and applicable laws. Excessive application shall be avoided.
SECTION 7. SUSPENSION OF MS4 ACCESS.
Suspension due to Illicit Discharges in
Emergency Situations
The Health Officer of Boulder County Public Health may,
without prior notice, suspend MS4 discharge access to a person when such
suspension is necessary to stop an actual or threatened discharge which 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,
Boulder County Public Health may take such steps as deemed necessary to prevent
or minimize damage to the MS4 or Waters of the United States, or to minimize
danger to persons.
Termination due to the Detection of Illicit
Discharge
Any person discharging to the MS4 in violation of this
ordinance may have their MS4 access terminated if such termination would abate
or reduce an illicit discharge. Boulder County Public Health will notify a
violator of the proposed termination of its MS4 access. The violator may
petition the Health Officer of Boulder County Public Health for a
reconsideration and hearing.
A person commits an offense if the person reinstates MS4
access to premises terminated pursuant to this Section, without the prior
approval of Boulder County Public Health.
SECTION 8. INDUSTRIAL
OR CONSTRUCTION ACTIVITY DISCHARGES.
Any person subject to an industrial or
construction activity NPDES stormwater discharge permit shall comply with all
provisions of such permit. Proof of compliance with said permit may be required
in a form acceptable to Boulder County Public Health prior to the allowing of
discharges to the MS4.
SECTION 9. ACCESS AND
INSPECTION OF PROPERTIES AND FACILITIES.
Applicability.
This Section 10 applies to all
facilities that have NPDES permits for stormwater discharges associated with
industrial activity, including construction activity.
Access to Facilities.
Boulder County Public Health shall be
allowed to enter and inspect permitted facilities subject to regulation
under this ordinance as often as may be necessary to determine compliance
with this ordinance. If a discharger has security measures in force, which
require proper identification and clearance before entry into its premises,
the discharger shall make the necessary arrangements to allow access to
representatives of Boulder County Public Health.
Facility operators shall allow Boulder
County Public Health ready access to all parts of the premises for the
purposes of inspection, sampling, examination and copying of records that
must be kept under the conditions of an NPDES permit to discharge
stormwater, and the performance of any additional duties as defined by state
and federal law.
Boulder County Public Health shall have
the right to set up on any permitted facility such devices as are necessary
in the opinion of the authorized enforcement agency to conduct monitoring
and/or sampling of the facility's stormwater discharge.
Boulder County Public Health has the right
to require the discharger to install monitoring equipment as necessary to
ensure the protection of Public Health and Environment. 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 stormwater 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 Boulder
County Public Health and shall not be replaced. The costs of clearing such
access shall be borne by the operator.
Unreasonable delays in allowing Boulder
County Public Health access to a permitted facility is a violation of a
stormwater discharge permit and of this ordinance. A person who is the
operator of a facility with a NPDES permit to discharge stormwater
associated with industrial activity commits an offense if the person denies
Boulder County Public Health reasonable access to the permitted facility for
the purpose of conducting any activity authorized or required by this
ordinance.
If Boulder County Public Health has been
refused access to any part of the premises from which stormwater is
discharged, and he/she is able to demonstrate probable cause to believe that
there may be a violation of this ordinance, or that there is a need to
inspect and/or sample as part of a routine inspection and sampling program
designed to verify compliance with this ordinance or any order issued
hereunder, or to protect the overall public health, safety, and welfare of
the community, then the authorized enforcement agency may seek issuance of a
search warrant from any court of competent jurisdiction.
SECTION 10.
REQUIREMENT TO PREVENT, CONTROL, AND REDUCE STORMWATER
POLLUTANTS BY THE USE OF BEST MANAGEMENT PRACTICES.
Boulder County Public Health will adopt
requirements identifying Best Management Practices (BMPs) for any activity,
operation, or facility, which may cause or contribute to pollution or
contamination of stormwater, the storm drain system, or waters of the state. The
owner or operator of a commercial or industrial establishment shall provide, at
their own expense, reasonable protection from accidental discharge of prohibited
materials or other wastes into the municipal storm drain system or watercourses
through the use of these structural and non-structural BMPs. Further, any person
responsible for a property or premises, which 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 BMPs to prevent the further discharge
of pollutants to the municipal separate storm sewer system. Compliance with all
terms and conditions of a valid NPDES permit authorizing the discharge of
stormwater associated with industrial activity, to the extent practicable, shall
be deemed compliant with the provisions of this section. These BMPs shall be
part of a stormwater pollution prevention plan (SWPP) or stormwater management
plan (SWMP) as necessary for compliance with requirements of the NPDES permit.
SECTION 11.
NOTIFICATION OF SPILLS.
Notwithstanding other requirements of law, as
soon as any person responsible for a premises, or responsible for emergency
response for such premises has information of any known or suspected release of
materials which are resulting or may result in illegal discharges into
stormwater, the storm drain system, or waters of the U.S., 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 of the occurrence via
emergency dispatch services. In the event of a release of non-hazardous
materials, said person shall notify Boulder County Public Health in person or by
phone no later than 24 hours. Notifications in person or by phone shall be
confirmed by written notice addressed and mailed to Boulder County Public Health
within five (5) calendar days of the initial 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 three (3) years.
SECTION 12. VIOLATIONS, ENFORCEMENT
AND PENALITIES.
Notice of Violation.
Whenever Boulder County Public Health finds that a person has
violated a prohibition or failed to meet a requirement of this Ordinance,
Boulder County Public Health 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 stormwater
pollution or contamination hazards and the restoration of any affected
property;
(5) Payment to cover administrative and remediation
costs; and
(6) The implementation of source control or treatment
BMPs.
If abatement of a violation and/or restoration
of affected property is required, the notice shall set forth a deadline within
which such remediation or restoration must be completed. Said notice shall
further advise that, should the violator fail to remediate or restore within the
established deadline, Boulder County may seek the enforcement of the work
through injunction or other legal means, or the work will be done
by a designated governmental agency or a contractor and the expense thereof
shall be charged to the violator.
Appeal of Notice of Violation.
Any person receiving a Notice of Violation may appeal to the
Board of County Commissioners the determination of Boulder County
Public Health. The notice of appeal must be received within 10 days from the
date of the Notice of Violation. Hearing on the appeal before the Board of
County Commissioners shall take place within 15 days from the date of receipt of
the notice of appeal. The decision of the Board of County Commissioners
shall be final.
Criminal Prosecution.
Any person that has violated or continues to violate this
ordinance shall be liable to criminal prosecution to the fullest extent of the
law, and shall be subject to a criminal penalty authorized pursuant to Colorado
Revised Statutes, Title 30, Article 15. The authorized enforcement agency may
recover all attorneys’ fees, court costs and other expenses associated with
enforcement of this ordinance, including sampling and monitoring expenses.
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 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.
Remedies Not Exclusive.
The remedies listed in this ordinance are not exclusive of
any other remedies available under any applicable federal, state or local law,
and it is within the discretion of the authorized enforcement agency to seek
cumulative remedies.
SECTION 13. SEVERABILITY.
If any provision, clause, sentence or
paragraph of this Ordinance or the application thereof to any person or
circumstances shall be held invalid, such invalidity shall not affect the other
provisions of this Ordinance which can be given effect without the
invalid provision or application, and to this end the provisions of this
Ordinance are declared to be severable.
SECTION 14. EFFECTIVE DATE.
This article shall be effective sixty (60) days from and after
the date of its adoption and final publication.
INTRODUCED, READ, AND ADOPTED ON FIRST READING on June 7 2005,
and ordered published in the LONGMONT TIMES-CALL.
THE BOARD OF COMMISSIONERS
OF THE COUNTY OF BOULDER, COLORADO
________________________________
Ben Pearlman, Chair
ATTEST:
__________________________
Clerk to the Board
ADOPTED ON SECOND AND FINAL READING on _____________________,
2005.
THE BOARD OF COMMISSIONERS
OF THE COUNTY OF BOULDER, COLORADO
________________________________
Ben Pearlman, Chair
ATTEST:
_________________________
Clerk to the Board
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