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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 03/02/2010 - FIRST READING OF ORDINANCE NO. 019, 2010, AMENDING DATE: March 2, 2010 AGENDA I STAFF: Carol Webb FORT COLLINSCOUNCIL First Reading of Ordinance No. 019, 2010, Amending Chapter 26 of the City Code Relating to Right of Entry and Nuisance Abatement and Article VI of Chapter 26 Relating to Stormwater Quality and Enforcement. EXECUTIVE SUMMARY Staff has identified changes to the City Code that are necessary to reflect recent changes to permits and policies issued by the Colorado Department of Public Health and Environment (CDPHE) and to improve enforcement mechanisms related to stormwater quality. The Ordinance will allow authorized City employees to investigate and abate imminent hazards to the City's Utilities systems and to recover costs of abatement from responsible parties. The Ordinance also includes amendments that are specific to Article VII of Chapter26 related to stormwaterto impose more stringent limitations than those required by CDPHE related to stormwater discharges, to allow stop work orders to be issued on construction sites for stormwater violations of the City Code,and to address proper maintenance and operation of private stormwater quality facilities. BACKGROUND / DISCUSSION In 2003, the City of Fort Collins was issued a Municipal Separate Storm Sewer System (MS4) permit in order to discharge stormwater associated with its MS4. This federally mandated program is administered by CDPHE. The City is currently in its second permit term -2008-2013. The MS4 permit requires regulatory mechanisms and enforcement procedures prohibiting the discharge of pollutants and contaminated water into the City's public stormwater facilities. The City currently has a number of enforcement mechanisms in place, but needs to improve and strengthen its enforcement to comply with the current MS4 permit and recent permits and policies issued by CDPHE. The proposed Code changes reflect these improvements and provide the following: 1. A legally compliant grant of authority for Utilities staff to reasonably enter a property to investigate imminent hazards to the City's MS4. 2. A mechanism for the City to recover costs for abatement of imminent hazards from the party responsible for creating the hazard. 3. A mechanism for Utilities staff to stop work on construction sites for violations of the Stormwater Article of Chapter 26. 4. The addition of a Code section requiring the proper maintenance and operation of private storm drainage facilities by the owners of the real property that are directly served by those facilities In addition to the MS4 permit program goals and requirements, the proposed Code changes also help support the Stormwater Utility Repurposing effort by providing and refining regulatory and enforcement mechanisms to protectthe quality of the stormwater that flows from the MS4 into waters of the State. FINANCIAL IMPACT The proposed Code changes will have a positive financial impact on the City because the City will be able to recover costs for abatement of imminent hazards to the stormwater system. The cost of stormwater pollution will be the responsibility of the responsible party. March 2, 2010 -2- ITEM 14 SUSTAINABILITY: ECONOMIC, ENVIRONMENTAL AND SOCIAL IMPACTS Environmental Impacts 1. The proposed Code changes reflect environmental regulatory requirements ofCDPHE and the Environmental Protection Agency(EPA). The regulatory requirements are promulgated to implement the goals of the Clean Water Act to protect and improve the quality of the nation's water bodies. 2. The proposed changes will create a deterrent to potential violators who discharge pollution to the City's stormwater system. 3. Sediment from construction sites, a major water quality pollutant, will be better controlled. 4. Requirements for properoperation and maintenance of private storm drainage facilities will improve the quality of discharged stormwater. Financial Impacts 1. The City will have a mechanism to recover costs associated with imminent hazards to the City's stormwater facilities. 2. Violators will incur costs associated with pollutants discharged to the City's stormwater system. Social Impacts 1. Protection and improvement of local water bodies from pollution improves the overall health and well-being of the community. 2. Proper maintenance and operations of private stormwater facilities contributes to the health and safety of the community by improving the quality of stormwater discharged and preventing flow obstructions which may cause flooding. 3. Enforcement of stormwater requirements promotes education in the regulated community regarding the purpose of the stormwater system. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BOARD/COMMISSION RECOMMENDATION At its January 28,2010 meeting,the Water Board voted unanimously to recommend adoption of the Ordinance. There have been two substantive changes to the Ordinance language since it was reviewed by the Water Board in January, 2010. The first was to modify the final subsection of the definition of imminent hazard in order to more specifically describe types of potentially hazardous conditions. The second is to amend Section 26-548 pertaining to stop work orders in order to specifically describe the type of activity that may be stopped and in order to clarify that such activity may be stopped if the activity puts the City at risk of violating its MS4. PUBLIC OUTREACH Public outreach has been conducted by Utilities staff regarding the prohibition of the discharge of pollutants and contaminated water to the City's stormwater system. Education has included business educational outreach March 2, 2010 -3- ITEM 14 campaigns,warning letters to first-time violators,education for developers and construction site employees on proper erosion and sediment control measures, and education for homeowner associations related to proper operation and maintenance of private storm drainage facilities. ATTACHMENTS 1. Water Board draft minutes, January 28, 2010 ATTACHMENT 1 Excerpt from Unapproved Water Board Minutes,January 28,2010 Stormwater Code Changes (Presentation available upon request) Carol Webb, Regulatory and Government Affairs Manager, presented proposed amendments to Chapter 26 of the City Code related to Right of Entry and Nuisance Abatement and Article VII of Chapter 26 related to Stormwater Quality and Enforcement. As a result of cumulative spill response experiences, staff sees the need for code mechanisms to improve enforcement and pursue remediation costs. The State has also changed some regulations. Both are contributing factors to the interest in submitting these code amendments. Private stormwater features (water quality ponds) can belong to a homeowner or a subdivision and must be maintained to avoid debris collection. In the case of subdivision features, it is normally the homeowners association's responsibility to maintain the features. In the past year, staff has escalated enforcement and several spill violations have been issued. Staff have the authority to issue a stop work order on construction sites for erosion control concerns. In response to questions from the board, Ms. Webb noted the following: • The State provides guidelines for flushing hydrants. • In Sec. 26-491, the definition of a pollutant includes spills, drips or leaks from a chemical or tanker truck which are considered inherently "waste-like" and covered by the guidelines (Sec. 26.498). • Our rivers and streams are considered part of our stormwater system. Motion: Board Member Wockner moved that the Water Board recommend approval to the City Council of amendments to Chapter 26 of the City Code related to Right of Entry and Nuisance Abatement and Article VII of Chapter 26 relating to Stormwater. Board Member Phelan seconded the motion. Vote on the motion: It passed unanimously. ORDINANCE NO . 019, 2010 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT COLLINS RELATING TO RIGHT OF ENTRY AND NUISANCE ABATEMENT AND ARTICLE VII OF CHAPTER 26 RELATING TO STORMWATER QUALITY AND ENFORCEMENT WHEREAS , the City was issued a Municipal Separate Storm Sewer System ("MS4") permit to discharge stormwater into waters of the State of Colorado in 2003 ; and WHEREAS , the Colorado Department of Public Health and Environment ("CDPHE") administers MS4 permits issued to municipalities including the City; and WHEREAS , the CDPHE has implemented statewide changes in regulatory mechanisms and policies and has required MS4 permit holders to more actively enforce stormwater violations in order to prohibit and address discharges of pollutants and contaminated water into stormwater facilities ; and WHEREAS , the CDPHE has implemented permit changes that require the City to require the proper maintenance and operation of private storm drainage facilities ; and WHEREAS , the City Council has determined that the Utility should have the authority to abate imminent hazards and to seek abatement of such hazards . NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows : Section 1 . That Section 26- 1 of the Code of the City of Fort Collins is hereby amended by the addition of a new definition of "Imminent hazard" which reads in its entirety as follows : Imminent hazard shall mean the existence of a public nuisance or any other condition or occurrence that, as determined by the Utilities Executive Director, poses a threat to public health, safety and welfare . This includes, but is not limited to, a condition that: ( 1 ) poses a threat to any City utility system; (2) interferes with the provision of utility services pursuant to this Chapter; or (3) materially interferes with or impairs the utility ' s compliance with any environmental restrictions , regulations or permits applicable to the utility. Section 2 . That Section 26-22 of the Code of the City of Fort Collins is hereby amended to read as follows : Sec. 26-22 . Right of entry. (a) In connection with the necessary discharge of their duties and the enforcement of the provisions of this Chapter, 9Fthe employees of the City shall, at all reasonable times, have access to any premises within or without the City served by one ( 1 ) or more of the utilities or the examination or survey thereof or for inspection and repair of facilities and appurtenances, connection and disconnection of services, reading meters or for any other purpose whatever in cormection with the necessary discharge of their duties and the enforcement of the provisions of thias der. This provision is not intended to modify the right of access described in § 26-219 . (b) Whenever necessary to make an inspection to enforce any of the provisions of this Chapter or whenever a City employee has reasonable cause to believe that there exists in any building or upon any premises any condition or violation which makes such building or premises unsafe, dangerous or hazardous or presents a significant, immediate danger to human health or the environment, the City employee may enter such building or premises at all reasonable times to inspect it or to perform any duty imposed upon the City employee by this Chapter. If such building or premises is occupied at the time entry is required, the City employee shall first present proper credentials and request entry. If such building or premises is unoccupied, the City employee shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and request entry. If such entry is refused, the City employee shall have recourse to every remedy provided by law to secure entry. (c) When the City employee has obtained an inspection warrant or other remedy provided by law to secure entry, no owner or occupant or any other persons having charge, care or control of any building or premises shall fail or neglect, after proper request is made as herein provided, to promptly permit entry therein by the City employee for the purpose of inspection and examination pursuant to this Article . Any such failure to permit entry upon request pursuant to a valid inspection warrant shall be a misdemeanor punishable by the provisions set forth in § 1 - 15 . Section 3 . That Article II, Section 26 of the Code of the City of Fort Collins is hereby amended by the addition of a new Section 26-28 which reads in its entirety as follows : Sec. 26-28. Abatement of imminent hazards. (a) If the Utilities Executive Director identifies a circumstance that constitutes an imminent hazard, the Utilities Executive Director is authorized to take such steps as the Director deems appropriate to prevent or mitigate the imminent hazard and to recover any costs incurred by the City in these efforts . Failure to follow the procedures described below does not preclude the City from recovering its abatement costs through any legal means . -2- (b) Except as otherwise specifically provided, if the Utilities Executive Director certifies in writing that an imminent hazard exists, as defined in this Chapter, the Utilities Executive Director may issue an order to the owner, agent of the owner, occupant of the property or other responsible party pursuant to § 26-547, stating that the imminent hazard exists and requiring such actions as he deems necessary in order to abate the imminent hazard. (c) If the Utilities Executive Director issues an order regarding the abatement of an imminent hazard, such order shall : ( 1 ) be in writing; (2) be personally served whenever feasible on the owner, owner' s agent or other responsible party pursuant to §26- 547 or, when personal service is not feasible, be posted conspicuously at the premises or be mailed to the person by certified mail, return receipt requested, to his or her last known address ; (3 ) describe with reasonable specificity the condition existing on the premises that gives rise to the issuance of the imminent hazard order; (4) specify, if applicable, the maximum time period before the City itself will abate the hazard; (5) state that an appeal of the order is available under the provisions of paragraph (g) of this Section; (6) include a copy of this Section; (7) state that, in the event the property owner, owner' s agent or occupant fails to immediately comply with the imminent hazard order, the City may take any steps necessary to correct the imminent hazard, bill the property owner for costs incurred to correct the hazard, and if unpaid, seek any and all available legal remedies including but not limited to preventing the person responsible for creating or allowing the imminent hazard from obtaining or renewing any licenses, permits or certificates from the City. (d) In the event the person to whom the imminent hazard order is issued fails or refuses to comply with such order, the Utilities Executive Director may cause the imminent hazard to be summarily abated in such manner or by such methods as are necessary and appropriate under the circumstances of each case . (e) If an imminent hazard has been abated by the City under this Section and the responsible party under §26-547 fails, within thirty (30) days after receipt of the City ' s bill for costs and expenses incurred in abating the imminent hazard, to pay said costs and expenses , a lien in the amount due will be created by the owner' s -3 - failure to pay the amount due and may be assessed against the property upon which the imminent hazard exists or the property directly benefitting from a storm drainage facility described in §26- 547 and such lien shall be enforced consistent with §26-718 (b) and (d) . (f) To enforce an imminent hazard order, the Utilities Executive Director or his designee may enter upon any premises or property in accordance with the provisions of § 26-22 for the purpose of inspecting, abating, repairing, removing or otherwise preventing the condition which is an imminent hazard to the public health, safety and welfare. (g) Any party to whom an imminent hazard order has been issued and who believes that he or she has been aggrieved by an imminent hazard order issued by the Utilities Executive Director may appeal the order to a hearing officer, who shall be appointed by the Executive Director, provided the aggrieved party makes written application for such appointment within five (5) days of service of the imminent hazard order. In no event, however, shall an appeal of an imminent hazard order in any way stay or suspend the same, unless measures to avoid or mitigate the imminent hazard have been approved by the Utilities Executive Director and are implemented as approved. If a timely appeal is made, a hearing concerning the propriety of the order shall be granted to the party to whom an imminent hazard order has been issued, and, after notice thereof to the appellant, the hearing shall be held no more than ten ( 10) calendar days after the filing of the notice of appeal . At the hearing, the appellant and the City may be represented by an attorney, may present evidence and may cross-examine witnesses . A verbatim transcript of the hearing shall be made. The decision of the hearing officer shall be based upon competent evidence . (h) The remedies discussed in this Section are available to the City in addition to any other remedies which may be available to the City. Nothing contained in this Section shall be construed to preclude the City or the Utilities Executive Director from seeking any and all other available legal remedies . Section 4 . That Section 26-491 of the Code of the City of Fort Collins is hereby amended by the addition of the following eight new definitions which read in their entirety as follows : Best management practices shall mean treatment requirements, operating procedures and practices to control site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage and schedules of activities, prohibitions of practices, maintenance procedures , and other management practices to prevent or reduce the pollution of " state waters " that are described in the Urban Drainage and Flood Control Manual, Volume 3 , entitled "Best Management Practices" published by the Urban Drainage and Flood Control District in Denver, Colorado, in January 2007 . CDPS shall mean the Colorado Discharge Permit System. -4- Connection shall mean a pipe, drain, any other conduit, or plumbing that conveys or can be used to convey any water or other liquid or solid material to the stormwater system. Maintenance best managementpractices shall mean those management practices that are described in the Urban Drainage and Flood Control Manual, Volume 3 , Chapter 6 , entitled "Maintenance Recommendations" published by the Urban Drainage and Flood Control District in Denver, Colorado, in January 2007 . Pollutant shall mean dredged spoil, dirt, slurry, solid waste, incinerator residue, sewage, sewage sludge, garbage, trash, chemical waste, biological nutrient, biological material, disease causing agents, radioactive material, heat, wrecked or discarded equipment, rock, sand, automotive fluids, paint, cooking grease, process waste water, swimming pool discharges, discharges from cleaning of Heat Transfer Equipment or any industrial, commercial, construction, household, municipal or agricultural waste. Private storm drainage facilities shall mean those storm drainage facilities that do not meet the definition of public storm drainage facilities . Public storm drainage facilities shall mean those storm drainage facilities that have been formally and expressly accepted by the City for City ownership and maintenance or as otherwise expressly agreed by the City in writing. Storm drainage facility shall mean those improvements designed, constructed or used to convey or control stormwater runoff, and to remove pollutants from stormwater runoff after precipitation. Section 5 . That the definition " Contaminated water" contained in Section 26-491 of the Code of the City of Fort Collins is hereby amended to read as follows : Contaminated water shall mean that water which contains constituents at concentrations which could cause, directly or indirectly, impairment of human health or the environment and which would not present in such concentrations in a natural state. This includes any water contaminated from industrial processes, land use activities, development or other man-induced practices . These constituents include, but are not limited to, toxic pollutants as defined in § 26-206 of the Code, nutrients such as nitrogen and phosphorous, substances which promote an excessive biochemical oxygen demand (BOD) or chemical oxygen demand (Cod) as those terms are defined in § 26-206, substances which cause the pH of such water to deviate from acceptable standards, biological agents which may be the cause of disease in either humans or other desirable organisms, and physical contaminants such as excess sediments and/or temperature. U. S . Environmental Protection Agency's current publication of " Quality Criteria for Water, " and/or the State of Colorado's "Basic Standards and Methodologies for Surface Water" and/or any other federal or state regulation or guideline may be used to interpret the impact of a -5 - particular constituent upon a water body. This definition does not include the following sources of water, unless water from such a source is determined to violate other applicable water quality restrictions or requirements : ( 1 ) flows incidental to emergency fire fighting activities ; (2) landscape irrigation and residential lawn watering; (3 ) irrigation return flows ; (4) springs, diverted stream flows and flows from riparian habitats and wetlands ; (5 ) flows incidental to street, sidewalk or median sweeping and not associated with construction; (6) flows from condensation formed from the operation of air conditioning equipment installed and maintained in accordance with manufacturer' s specifications ; (7) uncontaminated pumped, infiltrated or rising ground water; and (8) flows from a properly installed, operated and maintained and City- approved footing, foundation or crawl space drain or pump . Section 6 . That the definition "Suitable treatment" contained in Section 26-491 of the Code of the City of Fort Collins is hereby amended to read as follows : Suitable treatment shall mean that treatment process authorized by and undertaken pursuant to an appropriate permit(s) to discharge treated water under the State of Colorado Department of Public Health and Environment' s Colorado Discharge Permit System ("CDPS"), and the Eiencral Manager has approved th discharge or pursuant to written guidance regarding low risk categories of discharges issued by the Colorado Department of Public Health and Environment, except that if the Executive Director has imposed more stringent requirements as authorized in § 26-498(d), suitable treatment means compliance with those more stringent requirements . Section 7 . That Section 26-498 of the Code of the City of Fort Collins is hereby amended to read as follows : Sec. 26-498. Water quality control. (a) The City storm drainage facilities are intended to be used only for the purpose of collecting water deposited as a result of meteorological precipitation. No person shall make or maintain at any time a connection to a storm drainage facility -6- to convey flows other than storm drainage flows and uncontaminated groundwater flows . Except where suitable treatment has been provided, it o person shall discharge any pollutant - or contaminated water into or upon any : ( 1 ) Public street, highway or other street right-of-way; (2) Watercourse (whether natural or manmade) ; (3 ) Stormier drainage facility; or (4) Other public or private property within the City or in an area under the jurisdiction of the City if there is a significant potential for migration of such pollutant or contaminated water from such property to a storm drainage facility. (b) No person shall maintain or permit property conditions that create a significant potential for migration of pollutants or contaminated water to the City ' s storm drainage facilities . (c) No person shall fail to maintain stormwater quality improvements required in connection with such person ' s development, occupation or use of any property in the City. (bd) The General Manager shall have the righ is authorized to impose more stringent effluent limitations than required by the CDPS and to add pollutant parameters to those required by the CDPS in regulating flows into or upon the locations or facilities described in Subsection (a) as the Utilities Executive Director determines to be necessary to protect public storm drainage facilities, public streets, highways , other rights-of-way, or any watercourse . The General Manager-s� a have the right to impose additional administrative requirements for accelerate is also authorized to require sampling for such pollutant parameters according to such schedule as the Utilities Executive Director determines to be appropriate to ascertain water quality. Any such requirements added by the General Manager shall be reported together with those required by the CDPS to both the General Manager and the CDPS . The General Manager shall have the rig is authorized to refuse, or restrict any nonstornrwater discharge to public storm drainage facilities if, in the best professional judgment of the General Manager, such discharge would significantly impn=efusal or restriction is necessary to prevent impairment of the health, safety or welfare of the citizens or the environment, or to prevent injury to any public storm drainage facility. (ee) Where federal or s CDPS discharge permits are required €ar-ate discharge of storniwater, the General Manager shall have the rig is authorized to impose additional Best Management Practices as may be required byrequirements -7- as may be applicable pursuant to the City's " Storm Drainage Design Criteria and Construction Standards .. " or pursuant to best management practices . (df) No person shall use any water well within the City as a cesspool or as a place to deposit wastewater or wastes of any kind. (g) No person shall cause any obstruction in or interfere with the operation of any public storm drainage facility or private storm drainage facility. Section 8 . That Article VII, Division 2 of Section 26 of the Code of the City of Fort Collins is hereby amended by the addition of a new Section 26-499 which reads in its entirety as follows : Sec. 26-499. Violations and penalties. Any person who violates any provision of this Article commits a criminal misdemeanor and upon conviction, shall be subject to the provisions of § 1 - 15 . Unless otherwise specified, each day that a prohibited condition is maintained shall constitute a separate offense. Section 9 . That Section 26-518 of the Code of the City of Fort Collins is hereby amended to read as follows : Sec. 26-518. Enforcement. Any charge due hereunder which shallis not be-paid when due may be recovered in an action at law by the City. In addition to any other remedies or penalties provided by this Chapter or the Code, failure of any user of City utilities within the City to pay the charges promptly when due shall subject such user to discontinuance of such utility services and the City Manager is hereby empowered and directed to enforce this provision as to any and all delinquent users . The employees of the eity shalh at all reasonable times, have access to any Ved by the eity fo inspection, repair or the enf6rcement of the provisions of this Article, -8- Section 10 . That Section 26- 547 of the Code of the City of Fort Collins is hereby amended to read as follows : Sec. 26-547. Maintenance of storm drainage facilities. The eity shall maintain all accepted public storinwater f�eififies located WO eity- rights-of-way aceepted public stormwater facilities located within or adjacent to ttie eity . stte public f�cifitics include those f�cifitics which havc becti designed and constrvctcul expressly for use by the general public . Stich public stormwater f�eifities do not include facififies not accepted by the eity for maintenance . For purposes of this Section " for ttse by the gkncral pnbfic " nicans direct nse and benefit of the gencraf lac . (a) Any person responsible for any private storm drainage facility required by the City, whether by law or as a condition of development approval or development agreement, shall maintain and operate said facility in accordance with maintenance best management practices . (b) The owner of that real property whose property is directly served by a private storm drainage facility according to an applicable storm basin delineation is responsible to the City for costs incurred by the City pursuant to § 26-28 . Section 11 . That Article VII, Division 3 of Chapter 26 of the Code of the City of Fort Collins is hereby amended by the addition of a new Section 26-548 which reads in its entirety as follows : Sec. 26-548. Stop work orders. (a) The City Manager may, by service of written notice, order that any work undertaken pursuant to a permit issued by the City or pursuant to a City-approved development agreement be stopped if the City Manager or his or her designee determines that such work falls within any of the following categories and if the City Manager also causes a written notice to that effect to be served on the person responsible for, or conducting, such activity : ( 1 ) the work is not in compliance with this division of the Code ; (2) the work may cause injury to the City ' s storm drainage facility or waters of the state ; or (3 ) the work materially interferes with or impairs the City ' s compliance with any permit applicable to the stormwater utility. -9- (b) Except as specified in such notice, such person shall cease all activity until authorized in writing by the City to proceed. If the appropriate responsible person cannot be located, the notice to stop shall be posted in a conspicuous place in the area where the activity is occurring. (c) The notice shall state the nature of the violation or potential cause of harm. A posted notice must not be removed until the violation or potential cause of harm has been remedied or the City has given authorization to remove the notice . (d) It is unlawful for any person to fail to comply with a stop work order. (e) A person who has been issued a stop work order pursuant to this Section and who believes he or she has been aggrieved by such order may appeal the order pursuant to procedures described in § 26-28 (g) . Introduced, considered favorably on first reading, and ordered published this 2nd day of March, A.D . 2010, and to be presented for final passage on the 16th day of March, A.D . 2010 . Mayor ATTEST : City Clerk Passed and adopted on final reading on the 16th day of March, A.D . 2010 . Mayor ATTEST : City Clerk - 10-