09. Resolution 5178 - Resolution of Intent & Call for PH - Stormwater RegulationsCity of Kalispell
Charles A. Harball office of City Attorney
City Attorney 312 First Avenue East
P.O. Box 1997
Kalispell, MT 5 9903 -1997
MEMORANDUM
Tel 406-758.7708
Fax 406.75 8.7771
charball@katispell.com
TO: Mayor Pamela B. Kennedy
and Kalispell City Council
FROM: Charles Harball, City Attorney
James H. Patrick, City Manager
SUBJECT: Resolution No. 5178 -- Resolution of Intent to Enact a
Stormwater Regulation ordinance and Calling for a
Public Hearing
MEETING DATE: Monday, February 5, 2007 — Regular Council Meeting
BACKGROUND: on January 22, 2007 Susie Turner, our staff Stormwater
engineer, advised the City Council of the current Federal and State stormwater
permitting requirements with which the City is expected to comply. The Council
reviewed, at that time, the draft ordinance which staff is recommending will meet
the MS4 criteria. It is appropriate that this draft ordinance be made available to
the public so that it can comment upon it and that a public hearing be called so that
Council may be advised of any input the public may have upon this draft ordinance.
RECOMMENDATION: That Council pass Resolution No. 5178 thereby stating its
intent to enact a stormw ater regulation ordinance, publishing the recommended
draft ordinance and calling for a public hearing.
FISCAL EFFECTS: The only fiscal impact at this time is the cost of publishing the
notice of hearing. We can expect that the Daily Inter Lake will publish an article
about the proposed ordinance in addition to the paid notice.
Respectfully submitt ,
F
Charles Harb4l, City Attorney awes H. Patrick, City Manager
RESOLUTION NO.517S
A RESOLUTION OF INTENT TO ENACT AN ORDINANCE TO REGULATE CERTAIN LAND
USE ACTIVITIES THAT HAVE IMPACTS UPON STORMWATER QUALITY PURSUANT TO
FEDERAL AND STATE LEGAL REQUIREMENTS, SETTING A PUBLIC HEARING AND
DIRECTING THE CITY CLERK TO PROVIDE NOTICE THEREOF.
WHEREAS, based upon its population, the City of Kalispell is now required to comply with MCA §
75-5-101 et seq. and ARM § § 17.30.110 I ; 17.30.1301 et seq. and 17.30.601 et seq. for
Storm. Water Discharge Associated with Small Municipal Separate Storm Sewer System.
(commonly referred to as "MS4" permitting); and
WHEREAS, a draft ordinance, attached hereto and incorporated fully herein by this reference, has
been prepared for the purpose of bringing the City into compliance with the MS4
requirements and setting forth the MPDES permitting criteria; and
WHEREAS, prior to enacting an ordinance to regulate certain land use activities that have impacts
upon stormwater quality the City should hold a public hearing on the matter to allow the
public to provide input on the draft ordinance after giving due and proper notice of said
hearing.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL,
AS FOLLOWS:
SECTION I. That there is hereby set a Public Hearing on the 20th day of February,
2007, at 7:00 o'clock p.m. in the Council Chambers, City Hall, Kalispell,
Montana, to discuss a proposal to enact an ordinance to regulate certain
land use activities that have impacts upon stormwater quality as required
by Federal and State law.
SECTION IL The City Clerk is hereby authorized and directed to make, publish and
distribute notices of said Public Hearing in conformity with State law.
The City Clerk shall further make the proposed draft ordinance, attached
hereto, available to the public upon the Kalispell City Website and in
paper format upon request.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE
CITY OF KALISPELL, ON THE 5TH DAY OF FEBRUARY, 2007.
Pamela B. Kennedy
Mayor
ATTEST:
Theresa White
City Clerk
ORDINANCE NO. DRAFT
AN ORDINANCE REGULATING AND CONTROLLING THE DESIGN,
CONSTRUCTION, USE, AND MAINTENANCE OF ANY DEVELOPMENT OR OTHER
ACTIVITY WHICH DISTURBS OR BREAD THE TOPSOIL OR RESULTS IN THE
MOVEMENT OF EARTH ON LAND IN THE CITY TO COMPLY WITH THE NPDES
PHASE II STORMWATER PROGRAM OF THE ENVIRONMENTAL PROTECTION
AGENCY AS ADMINISTERED BY THE MONTANA STATE DEPARTMENT OF
ENVIRONMENTAL QUALITY AND DECLARING AN EFFECTIVE DATE.
WHEREAS during the construction and land disturbance process, soil is the most vulnerable
to erosion by wind and water which endangers water resources by reducing water
quality and causing the siltation of aquatic habitat for fish and other desirable
species; an
WHEREAS deposition of eroded soil also necessitates repair of sewers and ditches, and the
dredging of lakes; and
WHEREAS clearing and grading during construction also causes the loss of native vegetation
necessary for terrestrial and aquatic habitat, which provides a healthy living
environment for citizens of the city; and
WHEREAS management of wastes from construction sites is also important in preventing
polluted stormwater runoff from a site; and
WHEREAS the purpose of regulating, and controlling the design, construction, use, and
maintenance of any development or other activity which disturbs or breaks the
topsoil or results in the movement of earth on land in the city is to safeguard
persons, protect property, prevent damage to the environment and promote the
public welfare, as well as meet the requirements set forth in the NPDES Phase II
Storm Water Program of the Environmental Protection Agency as administered
by the Montana State Department of Environmental Quality.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL, MONTANA, AS FOLLOWS:
SECTION 1 The City of Kalispell hereby adopts the following ordinance which shall
be entitled "Stormwater Discharges Resulting From Construction And
Land Disturbance Activities."
SECTION 2 Definitions. The following words, terms, and phrases, when used in this
article, shall have the meanings ascribed to them in this section, except
where the context clearly indicates a different meaning:
"Belowground installations." Activity that causes sediment laden water,
concrete sawing wash water, wash water or drilling mud pumped from an
excavation or structure and shall be treated as sediment laden runoff for
erosion control purposes.
"BMPs." Best Management Practices.
"City." The City of Kalispell and its employees with authority to inspect
or enforce stormwater compliance.
"Construction activities." Construction activities that require a building
permit.
"Construction Site BMP Manual." The Erosion and Sediment Control
Best Management Practices (BMP) Reference Manual and Field Manual,
as amended from time to time. A current copy of the manuals shall be
kept on file in the Kalispell City Public works Office and shall be
available to the public for the cost of reproduction.
"EPA." Environmental Protection Agency.
"ESC." Erosion and Sediment Control.
"Stormwater Management plan." A site plan with necessary details,
showing the property where land disturbing activity will take place and
showing the locations and types of devices, procedures and practices to be
used to control erosion and sedimentation.
"Final approval." Completion of a project, site or building in accordance
with city requirements and ordinances. In the case of a building, a
certificate of occupancy is issued. In case of a subdivision, when the 2-
year w&M bond has been submitted and the appointed Public works
Employee certifies all work is complete.
"Land disturbing activity." Any activity, including but not limited to
excavation, planting, tilling, and grading, which disturbs the natural or
improved vegetative ground cover so as to expose soil to the erosive
forces of rain, stormwater runoff or wind. All installations and
maintenance of franchise utilities such as telephone, gas, electric, etc.,
shall be considered land disturbing activities.
"MS4." Municipal separate storm sewer system.
"MPDES." The Montana Pollutant Discharge Elimination System as
administered by the state department of environmental quality.
"NPDES." The National Pollutant Discharge Elimination System as
administered by the Environmental Protection Agency.
"Off -site borrow area." A source of earth fill material used in the
construction of embankments or other earth fill structures, that is located
on another parcel of property other than where the principal construction
is occurring.
"Off -site sedimentation." Deposit of soil material beyond the limits of the
property undergoing land disturbing activity or in city streets, alleys or
drainage facilities in an amount sufficient to constitute a threat to public
safety and comfort.
"Off -site spoil area." An area on another parcel of property, other than
where the principal construction is occurring, where excess earth, rock or
construction material is disposed.
"Permanent erosion control devices." Devices or practices installed prior
to final approval and maintained after final approval to prevent or
minimize the erosion and deposit of soil materials. Such devices may
include, but shall not be limited to, permanent seeding, sod, storm drain
channels, channel linings, storm drainpipes, outlet velocity control
structures and stormwater detention structures.
"Permanent ground cover." Permanent vegetative cover on all bare soil
areas of a property not covered by a permanent structure or landscaping
improvements, including but not limited to, live sod, perennial grasses or
other materials which lessen runoff and soil erosion on the property.
"Related land area." Includes the property where the principal land
disturbing activity is taping place, all adjacent property, off -site borrow
areas, off -site spoil areas, off -site properties necessary for required utility
extensions, and off -site areas for required street improvements.
"Responsible party." A business entity, franchised utility company,
developer, property owner, contractor or holder of a building permit who
is required to comply with the terms of this article.
"Staging area." An on -site or off -site location used by a contractor to
store materials for a project, to assemble portions of equipment or
structures, to store equipment or machinery, to park vehicles, or for other
construction -related uses.
"Stop work order." The suspension of all city permits with no approvals
or inspections of work for the site or project being performed. Apart from
stabilizing E S C B MP s, no work shall be done on the site.
"Temporary erosion control devices." Devices installed or practices
implemented and maintained during land disturbing activities to prevent,
minimize or control the erosion and deposit of soil materials.
SECTION 3 Erosion Control Required.
A. Du of party,in control of property to prevent soil mud rock or
debris from washing,tracking or bein carried bv the wind off -site onto
public streets, alleys, etc. It shall be unlawful and shall constitute a public
nuisance for any person or business entity, whether owner, lessee, agent,
employee, or otherwise, having control of real property within the city to
permit soil, mud, rock or debris to wash, slide, erode or otherwise be
moved from said real property onto streets, alleys, utility facilities, storm
drains, rights -of -way or easements or receiving waters. It shall be the duty
of each party in control thereof to prevent soil, mud, rock or debris from
such real property being deposited or otherwise transported onto the
streets, alleys, storm drains, utility facilities, rights -of -way, easements or
receiving waters of the city.
B. Erosion control plan im lementation and compliance., A responsible
party engaging in any land disturbing activity, or any construction
activities shall prepare and submit a Stormwater Management permit to
the Kalispell Department of Public works.
(1) Greater or equal to One Acre. Land disturbing activity of one
acre or greater or construction activity that is part of larger common
plan of development or sale that would disturb one acre or more
shall submit shall prepare and submit a Stormwater Management
Permit, for review and approval by the City of Kalispell Public
Works Department, containing the following:
(a) A copy of the notice of intent (NOI), the Stormwater
Pollution Prevention Plan (SWPPP), and the Notice of
termination in accordance with the Montana Pollutant Discharge
Elimination System general permit for stormwater discharges
associated with construction activity, permit number
MTR100000.
(b) A complete Stormwater Management Permit application
form
(c) A complete Stormwater Management Checklist
(2) Less Than One Acre. Land disturbing activity of less than
one acre is not required to comply with MPDES general permit
number MTR100000, but shall prepare and submit a Stormwater
Management Plan, for review and approval by the City of Kalispell
Public works Department, containing the following. -
(a) A complete Stormwater Management Permit application
form.
(b) A checklist with a narrative statement of erosion and
sediment controls to be used at the construction site.
(c) A checklist with a narrative statement of pollution
prevention practices to be used at the construction site.
(d) A map of the construction site showing the locations of the
BMPs.
C. Implementation and maintenance of erosion control measures. Each
responsible party shall implement and maintain erosion control measures
to minimize the erosion and the transport of silt, earth, topsoil, etc., by
water runoff or construction activities, beyond the limits of the responsible
party's site onto city streets, drainage easements, drainage facilities, storm
drains or other city property prior to beginning any land disturbing
activity. A City of Kalispell Stormwater Management Permit fee of $10
for less than one acre by the responsible party at the time of filing the
building permit and $45 for one acre or greater shall be submitted by the
responsible party at the time of filing.
D. Off --site borrow, s120il and stagin areas. Where applicable, off -site
borrow areas, spoil areas and construction staging areas shall be
considered as part of the project site and shall be governed by this article.
E. Related land areas. The erosion control requirements of this article
shall apply to all related land areas. Additionally, when land disturbing
activity occurs on a project, all disturbed land areas related to the project
shall have permanent erosion control established before final occupancy of
structures located thereon or final acceptance of the subdivision may be
obtained. This subsection applies whether or not a building permit is
required.
F. Below: ound installations. All discharges resulting from below -
ground installations shall be passed through city -approved erosion control
device(s) or removed from the site and properly disposed.
G. Exclusions. No site development permit is required for the
following activities:
(1) Any emergency activity that is immediately necessary for the
protection of life, property or natural resources.
SECTION 4 stormwater Management Plan Requirements Generally.
Each erosion control plan required by this article shall clearly identify all
erosion and sediment control measures to be installed and maintained
throughout the duration of the project for which that plan is submitted.
For land disturbing activity of one acre or greater, the responsible party
shall install and maintain erosion control devices in accordance with
MPDES or NPDES general permit for stormwater discharges associated
with construction activity requirements.
SECTION 5 Design Requirements.
A. Design criteria. Grading, erosion control practices, sediment control
practices, and waterway crossings shall meet the design criteria set forth in
the most recent version of the Erosion and Sediment Control Best
Management Practices (BMP) Reference Manual, and shall be adequate to
prevent transportation of sediment from the site to the satisfaction of the
city.
B. Clearing and grad
(1) Clearing and grading of natural resources, such as water
bodies and wetlands, shall not be permitted, except when in
compliance with all other required permits.
(2) Clearing techniques that retain natural vegetation and retain
natural drainage patterns, as described in the Construction Site BMP
Manual, shall be used to the satisfaction of the city.
(3) Phasing shall be required on all sites disturbing equal to or
greater than thirty acres, with the size of each phase to be
established at plan review and as approved by the city.
(4) Clearing, except that necessary to establish sediment control
devices, shall not begin until all sediment control devices have been
installed and have been stabilized.
C. Erosion control.
(1) Soil must be stabilized within five days of clearing or
inactivity in construction, using recommended methods described in
the Construction Site BMP Manual.
(2) Soil stockpiles must be stabilized or covered at the end of each
workday.
(3) Techniques shall be employed to prevent the blowing of dust
or sediment from the site.
(4) Techniques that divert upland runoff past disturbed slopes
shall be employed.
D. Sediment controls.
(1) Sediment controls shall be provided in the form of settling
basins or sediment traps or tanks, temporary seeding, perimeter
controls or other methods described in the Construction Site BMP
Manual.
(2) Where possible, settling basins shall be designed in a manner
that allows adaptation to provide long-term stormwater
management.
(3) Adjacent properties shall be protected by the use of a
vegetated buffer strip, in combination with perimeter controls.
E. Winterization.
(1) Winterization BMPs described in the Construction Site BMP
Manual shall be implemented on projects prior to seasonal shut
downs or downtime of one month or longer.
F. Waterways and watercourses.
(1) When a watercourse must be crossed regularly during
construction, a temporary stream crossing shall be provided and an
approval obtained from the city and all other authorized permitting
agencies.
(2) When in -channel work is conducted, the channel shall be
stabilized before, during and after work.
(3) All on -site stormwater conveyance channels shall be designed
according to the criteria outlined in the current addition of the City
of Kalispell Standards for Design and Construction.
(4) Stabilization adequate to prevent erosion must be provided at
the outlets of all pipes and paved channels.
G. Construction site access.
(1) A temporary access entrance shall be provided at all sites and
shall be in accordance with the current addition of the City of
Kalispell Standards for Design and construction.
(2) Other measures maybe required at the discretion of the city in
order to ensure that sediment is not tracked onto public streets by
construction vehicles, or washed into storm drains.
H. Removal of temoorary erosion control devices. Upon establishing
70% or greater permanent ground cover on a lot, all temporary erosion
control devices shall be removed.
SECTION C Franchised Utilities Companies.
Subject to the terms of its franchise agreement with city, including but not
limited to terms regarding permits, a franchised utility company engaging
in land disturbing activities within the city shall comply with the
following:
A. Stormwater Management Permit. Prior to beginning any land
disturbing activity a Stormwater Management Permit shall be obtained as
outlined in SECTION 3 Erosion Control Required.
B. Emergency Construction. Construction activity in response to
emergencies where services are being restored by a franchised utility
company are not subject to the requirements for filing an stormwater
management permit. At the conclusion of emergency construction
activity, the utility company responsible for construction activities should
take any needed action to clean up or contain sediment or debris resulting
from the emergency construction activity.
SECTION 7 Construction Waste Management.
Construction site operators must, at a minimum, control waste such as
discarded building materials, concrete truck washout water, chemicals,
litter, and sanitary waste at the construction site that may cause adverse
impacts to water quality. This includes:
A. Operators must keep solid waste materials in either a secure enclosed
container or an enclosed waste collection area on site that does not receive
a substantial amount of runoff from upland areas and that does not drain
directly to a water body, and that prohibits pollutant runoff from the
construction site, and that does not allow wind-blown debris to leave the
site.
B. Chemicals, paint, petroleum, fertilizer, and pesticides must be stored
in a covered enclosure
C. Above ground petroleum storage tanks must be placed in a bermed
enclosure.
D. Empty/unused chemical containers must be disposed of in
accordance with label instructions.
E. Potentially hazardous waste must be segregated from nonhazardous
waste.
F. Daily cleanup of construction site must ensure that all litter is
contained in an appropriate enclosure or container so as not to accumulate
on the ground.
G. All construction site wastes must be disposed of at authorized
disposal facilities.
H. Recycling of waste material is encouraged where feasible.
I. Concrete truck washout water that is contained on site shall be in a
designated washout pit, and concrete residue removed at conclusion of
construction.
J. Sanitary waste facilities should be located a minimum of 15 feet from
storm drain inlets and receiving waters and the facilities must be self-
contained.
SECTION S Inspection and .Review.
A. Site plan review and inspection programs aid in compliance and
enforcement, and provide an opportunity for guidance and education.
(1) The city shall perform a site plan review for consideration of
potential water quality impacts at the time of filing the Stormwater
Management Permit
(2) The city shall establish appropriate frequencies for inspection
of construction stormwater pollution prevention measures at all
active construction sites.
(3) The city shall require notification from a construction site
operator prior to start or upon completion of various stages of
construction on a schedule approved by the city.
B. The permittee or his/her agent will be required to perform regularly
scheduled site inspections (at least every 14 days) and after major storm
events to ensure all accepted BMPs have been constructed and are
functioning properly. The purpose of such inspections will be to
determine the overall effectiveness of the control plan and the need for
additional control measures. All inspections shall be documented in
written form and made available for review by the city.
SECTION 9 Enforcement.
A. Violations. It shall be a municipal infraction pursuant to Chapter 1,
Article II of the Kalispell City Code for a responsible party or a third party
performing work on a project to violate any of the requirements of this
article, including, but not limited to, the following-
(1) Conducting any land disturbing or construction activity of
greater than one acre without submitting a notice of intent to comply
with NPDES or MPDES general permit for stormwater discharge
associated with construction activity requirements for the location
where the land disturbing activity occurred.
(2) Failing to install erosion control devices or to maintain erosion
control devices throughout the duration of land disturbing activities
(3) Failing to remove off -site sedimentation that is a direct result
of land disturbing activities where such off -site sedimentation
results from the failure to implement or maintain erosion control
devices as specified in this article.
(4) Allowing sediment laden water resulting from belowground
installations to flow from a site without being treated through an
erosion control device.
(5) Failing to repair damage to existing erosion control devices,
including replacement of existing grass or sod.
(6) Failing to provide adequate measures to contain and properly
dispose of solid waste, sanitary waste, hazardous waste, chemicals,
petroleum products, or concrete truck washout at or from a
construction site.
B. Notice of violation. Written notice of violation shall be given to the
responsible party or his job site representative as identified in the
Stormwater Management Permit for a site. Such notice shall identify the
nature of the alleged violation and the action required to obtain
compliance with the approved erosion control plan within twenty-four
(24) hours. At the end of the twenty -four-hour cure period, city shall
reinspect the site. If, at the time of such reinspection, the erosion control
devices at the site have not been brought into compliance with the
approved erosion control plan, city may
0) issue a stop work order and issue a citation of municipal
infraction for each violation of this article and seek alternative
remedies for abatement and fines; and/or
(2) clean the public way and bill the owner directly for the actual
cost of such cleanup and $200 administrative fee.
Correction shall include sediment cleanup, erosion control device repair,
erosion control device maintenance and/or installation of additional
erosion control devices to prevent recurrence of the violation. The twenty-
four -hour cure period may be extended for inclement weather or other
factors at the discretion of the city.
C. Municipal Infraction. Any person or corporation, whether owner,
lessee, principal agent, employee, or otherwise, who violates any
provisions of these regulations or permits any such violation or fails to
comply with any of the requirements thereof, may be subject to penalties
as a municipal infraction pursuant to Chapter 1, Article II of the Kalispell
City Code. Each day of continued violation shall constitute a separate,
additional violation. The City of Kalispell Public Works Director or his
authorized agent is hereby authorized to enforce this ordinance by issuing
a civil citation.
SECTION 10 Exemptions.
The following activities are exempt from the requirement to obtain a
permit and from following the above -described procedures:
A. Emergencies posing an immediate danger to life or property, or
substantial flood or fire hazards.
B. Any activity where the total volume of material disturbed, stored,
disposed of or used as fill does not exceed five (5) cubic yards or the area
disturbed does not exceed one thousand (1000) square feet provided it
does not obstruct a watercourse, and is not located in a floodplain.
SECTION 11 This Ordinance shall be effective thirty (30) days from and after the date of its
final passage and approval.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR
THIS DAY OF , 2007.
Pamela B. Kennedy
Mayor
Attest:
Theresa White
City Clerk