Town of Highlands, NY Stormwater Management

Land development activities and associated increases in site imperviousness may often alter the hydrologic response of local watersheds and increase stormwater runoff rates and volumes, flooding, stream channel erosion, or sediment transport and deposition;

This stormwater runoff contributes to increased quantities of waterborne pollutants, including siltation of aquatic habitat for fish and other desirable species, and may cause property damage;

Clearing and grading during construction tends to increase soil erosion and add to the loss of native vegetation necessary for terrestrial and aquatic habitat;

Improper design and construction of stormwater management practices and measures can increase the velocity of stormwater runoff, thereby increasing stream bank erosion and sedimentation;

Impervious surfaces allow less water to percolate into the soil, thereby decreasing groundwater recharge and stream baseflow;

Economic losses can result from adverse impacts on stormwater quantity and velocity and on the waters;

Stormwater runoff, soil erosion and nonpoint source pollution can be controlled and minimized through the regulation of stormwater runoff from land development activities;

The regulation of stormwater runoff discharges from land development activities is in the public interest and will help to reduce threats to public health and safety; and

Regulation of land development activities by means of standards governing stormwater management and site design is intended to regulate development such that it is compatible with the natural functions of a particular site or an entire watershed and thereby mitigate the adverse effects of erosion and sedimentation from development.

§ 164-2 Purpose.

The purpose of this chapter is to establish minimum stormwater management requirements and controls to protect and safeguard the general health, safety and welfare of the public residing within this jurisdiction and to address the findings set forth in § 164-1 hereof. This chapter attempts to meet these goals by seeking to achieve the following objectives:

Meet the minimum requirements for control of construction site and postconstruction runoff of the New York State SPDES General Permit for Stormwater Discharges from Municipal Separate Stormwater Sewer Systems (MS4s), Permit No. GP-02-02, as amended or revised;

Require land development activities to conform to the substantive requirements of the NYS Department of Environmental Conservation State Pollutant Discharge Elimination System (SPDES) General Permit for Construction Activities GP-02-01, as amended or revised;

Minimize increases in stormwater runoff from land development activities in order to reduce flooding, siltation, increases in stream temperature and streambank erosion, and to maintain the integrity of stream channels;

Minimize increases in pollution caused by stormwater runoff from land development activities which would otherwise degrade local water quality;

Minimize the total annual volume of stormwater runoff which flows from any specific site during and following development to the maximum extent practicable; and

Reduce stormwater runoff rates and volumes, soil erosion and nonpoint source pollution, wherever possible, through stormwater management practices, and to ensure that these management practices are properly maintained.

§ 164-3 Statutory authority.

In accordance with the Municipal Home Rule Law of the State of New York, the Town of Highlands Town Board has the authority to enact and amend local laws for the purpose of promoting the health, safety or general welfare of the Town of Highlands and for the protection and enhancement of its physical environment. The Town Board may include in any such local law provisions for the appointment of any municipal officer, employee or independent contractor to effectuate, administer and enforce such local law.

§ 164-4 Applicability.

This chapter shall be applicable to all land development activities as defined in § 164-6 of this chapter.

The Town shall designate a Stormwater Management Administrator, who shall accept and review all stormwater pollution prevention plans and forward such plans to the applicable municipal board(s). The Stormwater Management Administrator may:

(1)

Review the plans;

(2)

Upon approval by the reviewing board, engage the services of a professional engineer to review the plans, specifications and related documents; and/or

(3)

Accept the certification of a New York State licensed professional engineer that the plans conform to the requirements of this chapter and other applicable laws and regulations.

All land development activities subject to review and decision by the applicable municipal board shall be reviewed pursuant to the standards contained in this chapter, and other applicable laws and regulations.

A stormwater pollution prevention plan (SWPPP) consistent with the requirements of this chapter shall be required for preliminary subdivision plat approval. The SWPPP shall meet the performance and design criteria and standards in §§ 164-6 through 164-12 of this chapter. The approved preliminary subdivision plat shall be consistent with the provisions of this chapter.

A stormwater pollution prevention plan consistent with the requirements of this chapter and with the terms of preliminary plan approval shall be required for final subdivision plat approval. The SWPPP shall meet the performance and design criteria and standards in §§ 164-6 through 164-12 of this chapter. The approved final subdivision plat shall be consistent with the provisions of this chapter.

A stormwater pollution prevention plan consistent with the requirements of this chapter shall be required for site plan approval. The SWPPP shall meet the performance and design criteria and standards in §§ 164-6 through 164-12 of this chapter. The approved site plan shall be consistent with the provisions of this chapter.

No land development activity not subject to review as stated in Subsection C above shall be commenced unless and until the Town Planning Board has approved a stormwater pollution prevention plan (SWPPP) submitted to the Board.

§ 164-5 Exemptions.

The following activities may be exempt from review under this chapter:

Agricultural activity as defined in this chapter.

Alteration or maintenance of an existing structure which will not have an impact on the quantity or quality of the surface water discharge from the site.

Routine maintenance activities that disturb less than one acre of land and are performed to maintain the original line and grade, hydraulic capacity or original purpose of a facility.

Repair to any stormwater management practice or facility deemed necessary by the Building Inspector, Engineer or other person designated by the Town Board.

Land development activity that received approval by the Town Planning Board prior to the effective date of this chapter. However, said activity shall not be exempt from compliance with applicable state laws or regulations governing stormwater management and control.

Land development activity for which a building permit has been approved prior to the effective date of this chapter. However, said activity shall not be exempt from compliance with applicable state laws or regulations governing stormwater management and control.

Cemetery graves.

Installation of fence, sign, telephone and electric poles and other kinds of posts or poles.

Emergency activity immediately necessary to protect life, property or natural resources.

Activities of an individual engaging in home gardening by growing flowers, vegetables and other plants primarily for use by that person and his or her family.

Landscaping and horticultural activities in connection with an existing structure, provided that such activities do not disturb one acre or more of land.

§ 164-6 Definitions.

The terms used in this chapter or in documents prepared or reviewed under this chapter shall have the meanings as set forth in this section.

AGRICULTURAL ACTIVITY

The activity of an active farm, including grazing and watering livestock, irrigating crops, harvesting crops, using land for growing agricultural products, and cutting timber for sale, but shall not include the operation of a dude ranch or similar operation, or the construction of new structures associated with agricultural activities.

APPLICANT

A property owner or agent of a property owner who has filed an application for a land development activity.

BUILDING

Any structure, either temporary or permanent, having walls and a roof, designed for the shelter of any person, animal or property.

CHANNEL

A natural or artificial watercourse with a definite bed and banks that conducts continuously or periodically flowing water.

CLEARING

Any activity that removes the vegetative surface cover, including ground cover, shrubs, brush and trees.

DEDICATION

The appropriation of property by its owner for general public use.

DEPARTMENT

The New York State Department of Environmental Conservation.

DESIGN MANUAL

The New York State Stormwater Design Manual, most recent version, including applicable updates, that serves as the official guide for stormwater management principles, methods and practices.

DEVELOPER

A person who undertakes land development activities.

EROSION CONTROL MANUAL

The most recent version of the New York Standards and Specifications for Erosion and Sediment Control manual, commonly known as the "Blue Book."

GRADING

Excavation, filling or regrading or leveling of soil or rock material, including the resulting conditions thereof.

IMPERVIOUS COVER

Those surface improvements and structures that cannot effectively infiltrate rainfall, snow melt and water (e.g., building rooftops, pavement, sidewalks, driveways, etc.).

INDUSTRIAL STORMWATER PERMIT

A State Pollutant Discharge Elimination System permit issued to a commercial industry or group of industries which regulates the pollutant levels associated with industrial stormwater discharges or specifies on-site pollution control strategies.

INFILTRATION

The process of percolating stormwater into the subsoil.

JURISDICTIONAL WETLAND

An area that has been or may be determined to be a federal wetland; a New York State mapped wetland; or an area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support a vegetation typically adapted for life in saturated soil conditions, commonly known as "hydrophytic vegetation."

LAND DEVELOPMENT

Construction activity, including but not limited to clearing, grading, excavating, blasting, soil disturbance or placement of fill, that results in disturbance of one or more acres of land, or activity that disturbs less than one acre of land area that is part of a common plan of development or sale which will or has disturbed one or more acres of land, even though multiple separate and distinct land development activities may take place at different times on different schedules.

LANDOWNER

The legal or beneficial owner of land, including those holding the right to purchase or lease the land, the developer, or any other person holding proprietary rights in the land.

MAINTENANCE DECLARATION

A legally recorded document that acts as a property deed restriction, and which provides for long-term maintenance of stormwater management practices.

NONPOINT SOURCE POLLUTION

Pollution from any source other than from any discernible, confined and discrete conveyances, and shall include but not be limited to pollutants from agricultural, silvicultural, mining, construction, subsurface disposal and urban runoff sources.

PHASING

Clearing a parcel of land in distinct pieces or parts, with the stabilization of each piece completed before the clearing of the next.

POLLUTANT OF CONCERN

Sediment or a water quality measurement that addresses sediment (such as total suspended solids, turbidity or siltation) and any other pollutant that has been identified by the NYS DEC or Stormwater Management Administrator as a cause of impairment of any water body that will receive a discharge from the land development activity.

PROJECT

Land development activity.

RECHARGE

The replenishment of underground water reserves.

SEDIMENT CONTROL

Measures that prevent eroded sediment from leaving the site.

SENSITIVE AREAS

Cold water fisheries, shellfish beds, swimming beaches, groundwater recharge areas, water supply reservoirs, and habitats for threatened, endangered or special concern species.

SPDES GENERAL PERMIT FOR CONSTRUCTION ACTIVITIES GP-02-01

A permit under the New York Sate Pollutant Discharge Elimination System (SPDES) issued to developers of construction activities to regulate disturbance of one or more acres of land.

SPDES GENERAL PERMIT FOR STORMWATER DISCHARGE FROM MUNICIPAL SEPARATE STORMWATER SEWER SYSTEMS GP-02-02

A permit under the New York State Pollutant Discharge Elimination System (SPDES) issued to municipalities to regulate discharges from municipal separate storm sewers for compliance with EPA-established water quality standards and/or to specific stormwater control standards.

STABILIZATION

The use of practices that prevent exposed soil from eroding.

STOP-WORK ORDER

An order issued which requires that all construction activity on a site be stopped.

STORMWATER

Rainwater, surface runoff, snowmelt and drainage.

STORMWATER HOTSPOT

A land use or activity that generates higher concentrations of hydrocarbons, trace metals or toxicants than are found in typical stormwater runoff, based on monitoring studies.

STORMWATER MANAGEMENT

The use of structural or nonstructural practices and measures that are designed to reduce stormwater runoff and mitigate its adverse impacts on property, natural resources and the environment.

STORMWATER MANAGEMENT ADMINISTRATOR

The Building Inspector, Town's Engineer or other person designated by the Town Board to accept and review stormwater pollution prevention plans, forward the plans to the applicable municipal board and inspect stormwater management practices.

STORMWATER MANAGEMENT FACILITY

One or a series of stormwater management practices and measures installed and operated for the purpose of controlling stormwater runoff.

STORMWATER MANAGEMENT PRACTICES (SMPs)

Measures, either structural or nonstructural, that are determined to be the most effective, practical means of preventing flood damage and preventing or reducing point source or nonpoint source pollution inputs to stormwater runoff and water bodies.

STORMWATER POLLUTION PREVENTION PLAN (SWPPP)

A plan for controlling stormwater runoff and pollutants from a site during and after construction activities.

STORMWATER RUNOFF

Flow on the surface of the ground, resulting from precipitation, including snow melt.

SURFACE WATERS OF THE STATE OF NEW YORK

Lakes, bays, sounds, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within the territorial seas of the State of New York and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, public or private (except those private waters that do not combine or effect a junction with natural surface or underground waters), which are wholly or partially within or bordering the state or within its jurisdiction. Storm sewers and waste treatment systems, including treatment ponds or lagoons which also meet the criteria of this definition, are not waters of the state. This exclusion applies only to man-made bodies of water which neither were originally created in waters of the state (such as a disposal area in wetlands) nor resulted from impoundment of waters of the state.

WATERCOURSE

A permanent or intermittent stream or other body of water, either natural or man-made, which gathers or carries surface water.

WATERWAY

A channel that directs surface runoff to a watercourse or to the public storm drain system.

§ 164-7 Stormwater pollution prevention plans.

Stormwater pollution prevention plan requirement. No application for approval of a land development activity shall receive approval until the appropriate board has received a stormwater pollution prevention plan (SWPPP) prepared in accordance with the specifications in this chapter.

Contents of stormwater pollution prevention plans. All SWPPPs shall provide the following background information and erosion and sediment controls:

(1)

Background information about the scope of the project, including location, type and size of project.

(2)

Site map/construction drawing(s) for the project, including a general location map. At a minimum, the site map shall show the total site area; all improvements; areas of disturbance; areas that will not be disturbed; existing vegetation; on-site and adjacent off-site surface water(s); wetlands and drainage patterns that could be affected by the construction activity; existing and final slopes; locations of off-site material, waste, borrow or equipment storage areas; and location(s) of the stormwater discharge(s) (site map shall be at a scale no smaller than one inch equals 50 feet);

(3)

Description of the soil(s) present at the site;

(4)

Construction phasing plan describing the intended sequence of construction activities, including clearing and grubbing, excavation and grading, utility and infrastructure installation and any other activity at the site that results in soil disturbance; consistent with the New York Standards and Specifications for Erosion and Sediment Control (Erosion Control Manual), not more than five acres shall be disturbed at any one time unless pursuant to an approved SWPPP;

(5)

Description of the pollution prevention measures that will be used to prevent litter, construction chemicals and construction debris from becoming a pollutant source in stormwater runoff;

(6)

Description of construction and waste materials expected to be stored on-site with updates as appropriate, and a description of controls to reduce pollutants from these materials, including storage practices to minimize exposure of the materials to stormwater, and spill prevention and response;

(7)

Temporary and permanent structural and vegetative measures to be used for soil stabilization, runoff control and sediment control for each stage of the project from initial land clearing and grubbing to project close-out;

(8)

A site map/construction drawing(s) specifying the location(s), size(s) and length(s) of each erosion and sediment control practice;

(9)

Dimensions, materials specifications and installation details for all erosion and sediment control practices, including the siting and sizing of any temporary sediment basins;

(10)

Temporary practices that will be converted to permanent control measures;

(11)

Implementation schedule for staging temporary erosion and sediment control practices, including the timing of initial placement and duration that each practice shall remain in place;

(12)

Maintenance schedule to ensure continuous and effective operation of the erosion and sediment control practice;

(13)

Name(s) of the receiving water(s);

(14)

Delineation of SWPPP implementation responsibilities for each part of the site;

(15)

Description of structural practices designed to divert flows from exposed soils, store flows or otherwise limit runoff and the discharge of pollutants from exposed areas of the site to the degree attainable;

(16)

Any existing data that describes the stormwater runoff at the site; and

(17)

Additional information if requested by the Stormwater Management Administrator.

Land development activities as defined herein and meeting Condition A, B or C below shall also include water quantity and water quality controls (postconstruction stormwater runoff controls) as set forth in Subsection D below, as applicable:

(1)

Condition A: stormwater runoff from land development activities discharging a pollutant of concern to either an impaired water identified on the Department's 303(d) list of impaired waters or a total maximum daily load (TMDL) designated watershed for which pollutants in stormwater have been identified as a source of the impairment.

(2)

Condition B: stormwater runoff from land development activities disturbing five or more acres.

(3)

Condition C: stormwater runoff from land development activity disturbing between one acre and five acres of land during the course of the project, exclusive of the construction of single-family residences and construction activities at agricultural properties.

SWPPP requirements for Conditions A, B and C:

(1)

All information listed in Subsection B of this section;

(2)

Description of each postconstruction stormwater management practice;

(3)

Site map/construction drawing(s) showing the specific location(s) and size(s) of each postconstruction stormwater management practice;

(4)

Comparison of postdevelopment stormwater runoff conditions with predevelopment conditions;

(5)

Dimensions, material specifications and installation details for each postconstruction stormwater management practice;

(6)

Maintenance schedule to ensure continuous and effective operation of each postconstruction stormwater management practice;

(7)

Maintenance easements to ensure access to all stormwater management practices at the site for the purpose of inspection and repair; easements shall be recorded on the plan and shall remain in effect with transfer of title to the property; and

(8)

Inspection and maintenance declaration binding on all subsequent landowners served by the on-site stormwater management measures in accordance with § 164-9D of this chapter.

Plan certification. The SWPPP shall be prepared by a New York State licensed professional engineer and must be signed by the professional preparing the plan, who shall certify that the design of all stormwater management practices meets the requirements in this chapter.

Other environmental permits. The applicant shall assure that all other applicable environmental permits have been or will be acquired for the land development activity prior to approval of the final stormwater design plan.

Contractor certification.

(1)

Each contractor and subcontractor who will be involved in soil disturbance and/or stormwater management practice installation shall sign and date a copy of the following certification statement before undertaking any land development activity: "I certify under penalty of law that I understand and agree to comply with the terms and conditions of the stormwater pollution prevention plan. I also understand that it is unlawful for any person to cause or contribute to a violation of water quality standards."

(2)

The certification must include the name and title of the person providing the signature, address and telephone number of the contracting firm; the address (or other identifying description) of the site; and the date the certification is made.

(3)

The certification statement(s) shall become part of the SWPPP for the land development activity.

A copy of the SWPPP shall be retained at the site of the land development activity during construction from the date of initiation of construction activities to the date of final stabilization.

§ 164-8 Performance and design criteria.

All land development activities shall be subject to the following performance and design criteria:

Technical standards. For the purpose of this chapter, the following documents shall serve as the official guides and specifications for stormwater management. Stormwater management practices that are designed and constructed in accordance with these technical documents shall be presumed to meet the standards imposed by this chapter. These documents are on file in the Town Hall and the Building Department.

(1)

The New York State Stormwater Management Design Manual (New York State Department of Environmental Conservation, most current version or its successor, hereafter referred to as the "Design Manual").

(2)

New York Standards and Specifications for Erosion and Sediment Control (Empire State Chapter of the Soil and Water Conservation Society, 2004, most current version or its successor, hereafter referred to as the "Erosion Control Manual").

Water quality standards. No land development activity may cause an increase in turbidity that will result in substantial visible contrast to natural conditions in surface waters of the State of New York.

§ 164-9 Maintenance and repair of stormwater facilities.

Maintenance during construction.

(1)

The applicant and developer of the land development activity shall at all times properly construct, operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the applicant or developer. Sediment shall be removed from sediment traps or sediment ponds whenever their design capacity has been reduced by 50%.

(2)

The applicant or developer or representative identified in the SWPPP shall be on site at all times when land development activity takes place and shall inspect and document the effectiveness of all erosion and sediment control practices. Inspection reports shall be completed every seven days, in addition, and within 24 hours of any storm event producing 0.5 inch of precipitation or more. The reports shall be delivered to the Stormwater Management Administrator and to the Town Engineer, and copies shall be filed in the site log book.

Maintenance easement(s). Prior to the issuance of any approval that has a stormwater management facility as one of the requirements, the applicant or developer must execute a maintenance easement declaration that shall be binding on all subsequent landowners served by the stormwater management facility. The easement shall provide for access to the facility at reasonable times for periodic inspection by the Town and its agents to determine whether the facility is maintained in proper working condition to meet design standards and any other provisions established by this chapter. The easement shall be recorded by the grantor in the office of the County Clerk after approval by the counsel for the Town.

Maintenance after construction. The owner or operator of permanent stormwater management practices shall be responsible for insuring that said practices are operated and maintained in compliance with the SWPPP and all other conditions of approval. Proper operation and maintenance also includes, as a minimum, the following:

(1)

A preventive/corrective maintenance program for all facilities and systems of treatment and control (or related appurtenances) which are installed or used by the owner or operator to achieve the goals of this chapter.

(2)

Written procedures for operation and maintenance and training new maintenance personnel.

(3)

Monitoring to assure that discharges from the SMPs shall not exceed design criteria or cause or contribute to water quality standard violations.

Maintenance declarations. The property owner shall execute a formal maintenance declaration for stormwater management facilities binding on all subsequent landowners and recorded in the office of the County Clerk as a deed restriction on the property prior to final plan approval. The maintenance declaration shall be consistent with the terms and conditions of Schedule 1[1] annexed as part of this chapter, entitled "Sample Stormwater Management Facility Maintenance Declaration." The terms and conditions of the stormwater management facility maintenance declaration may be amended from time to time by resolution of the Town Board. The Town, at its sole discretion, may accept dedication of any existing or future stormwater management facility, provided that such facility meets all the requirements of this chapter and includes adequate and perpetual access and sufficient area, by easement or otherwise, for inspection and regular maintenance.

[1]

Editor's Note: The Sample Stormwater Control Facility Maintenance Declaration is on file in the Town offices.

§ 164-10 Inspections; reports; performance guarantees; recordkeeping.

Construction inspections.

(1)

Erosion and sediment control inspection.

(a)

The Town of Highlands may require such inspections as necessary to determine compliance with this chapter and may either approve that portion of the work completed or notify the applicant wherein the work fails to comply with the requirements of this chapter and the stormwater pollution prevention plan (SWPPP) as approved. To obtain inspections, the applicant shall notify the Town of Highlands enforcement official at least 48 hours before any of the following:

[1]

Start of construction.

[2]

Installation of sediment and erosion control measures.

[3]

Completion of site clearing.

[4]

Completion of rough grading.

[5]

Completion of final grading.

[6]

Close of the construction season.

[7]

Completion of final landscaping.

[8]

Successful establishment of landscaping in public areas.

(b)

If any violations are found, the applicant and developer shall be notified in writing of the nature of the violation and the required corrective actions. No further work shall be conducted, except for site stabilization, until all violations are corrected and all work previously completed has received approval by the Stormwater Management Administrator.

(2)

Stormwater management practice inspections. The Town of Highlands Stormwater Management Administrator is authorized to conduct inspections of stormwater management practices (SMPs). All applicants are required to submit "as built" plans for any permanent stormwater management practices constructed or located on site and/or off site. The plan must also show the final design specifications for all stormwater management facilities, which specifications must be prepared by and certified to by a professional engineer.

Inspection of stormwater facilities after project completion. Inspection programs shall be established on any reasonable basis, including but not limited to routine inspections; random inspections; inspections based upon 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 which are more likely than the typical discharge to cause violations of state or federal water or sediment quality standards or the SPDES stormwater 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 stormwater management practices.

Submission of reports. The Stormwater Management Administrator may require monitoring and reporting from entities subject to this chapter as are necessary to determine compliance with this chapter.

Right of entry for inspection. When any new stormwater management facility is installed on private property or when any new connection is made between private property and the public stormwater system, the landowner shall grant to the Town of Highlands, its officers, employees and agents, the right to enter the property at reasonable times and in a reasonable manner for the purpose of inspection as specified in Subsection B above.

Performance guarantee.

(1)

Construction completion guarantee. In order to ensure the full and faithful completion of all land development activities related to compliance with all conditions set forth by the Town of Highlands in its approval of the stormwater pollution prevention plan, the Town of Highlands shall require the applicant or developer to provide, prior to construction, a cash escrow, or irrevocable letter of credit from an appropriate financial or surety institution which guarantees satisfactory completion of the project and names the Town of Highlands as the beneficiary. The security shall be in an amount to be determined by the Town Engineer of the Town of Highlands based on submission of final design plans, with reference to actual construction and landscaping costs. The performance guarantee shall remain in force until the surety is released from liability by the Town of Highlands, provided that such period acceptance or such other certification that the facility(ies) has been constructed in accordance with the approved plans and specifications and that a one-year inspection has been conducted and the facilities have been found to be acceptable to the Town of Highlands.

(2)

Operation and maintenance guarantee. The developer, prior to construction, shall be required to provide the Town of Highlands with an operation and maintenance bond to ensure proper operation and maintenance of all stormwater management and erosion control facilities, both during and after construction. The amount of the bond shall be determined by the Town Engineer. If the developer's successor(s) fail(s) to properly operate and maintain stormwater management and/or erosion and sediment control facilities, the Town, its officers, employees and agents, may enter upon the property and perform any work necessary to facilitate proper reconstruction, operation and/or maintenance of the facilities, and may draw upon the account of the bond to cover all such costs, including legal, engineering and inspection costs. The maintenance provisions in the bond shall cover the estimated cost of properly maintaining the system for five years after completion of construction.

Recordkeeping. The Town of Highlands shall require entities subject to this chapter to maintain records demonstrating compliance with the regulations of this chapter.

§ 164-11 Enforcement; penalties for offenses.

This article shall be enforced by the Stormwater Management Administrator, with the assistance of the Town Engineer if the Administrator deems same to be necessary. The Stormwater Management Administrator is authorized to issue and serve appearance tickets in connection with violations of this chapter.

It shall be a violation of this article if any land development activity or any other disturbance of land does not fully comply with the requirements of this chapter, or with the terms or provisions of the SWPPP, or with any lawful order or notice issued by the Stormwater Management Administrator.

Notice of violation. If the Town determines that a violation has occurred, the Stormwater Management Administrator shall issue a written notice of violation. The notice of violation shall contain:

(1)

The name and address of the landowner, developer or applicant;

(2)

The address, when available, or a description of the building, structure or land upon which the violation is occurring;

(3)

A statement specifying the nature of the violation;

(4)

A description of the remedial measures necessary to bring the land development activity into compliance with this chapter and a time schedule for the completion of such remedial action; and

(5)

A statement of the penalty or penalties that may be assessed against the person(s) to whom the notice of violation is directed.

Stop-work orders. The Stormwater Management Administrator may issue a stop-work order for violations of this chapter. Persons receiving a stop-work order shall be required to halt all land development activities, except those permitted activities that remedy the violation(s) causing issuance of the stop-work order. The stop-work order shall be in effect until the Stormwater Management Administrator confirms that the land development activity is in compliance and the violation has been satisfactorily addressed. Failure to remedy a stop-work order in a timely manner may result in civil, criminal or monetary penalties in accordance with the enforcement measures authorized in this chapter.

Violations and penalties.

(1)

In addition to or as an alternative to any penalty provided herein or by law, any person who violates the provisions of this article shall be guilty of a violation punishable by a fine not exceeding $350 or imprisonment for a period not to exceed 15 days, or both, for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, punishable by a fine not less than $350 nor more than $700 or imprisonment for a period not to exceed 15 days, or both; and upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine not less than $700 nor more than $1,000 or imprisonment for a period not to exceed six months, or both. Each week's continued violation shall constitute a separate additional violation.

(2)

Civil penalties.

(a)

In addition to and not in lieu of the above, any person who violates any provision of this chapter or who builds or alters any structure or use of land in violation of any statement or plan submitted and approved thereunder, or who assists therein, shall be liable to the Town for a civil penalty in an amount not to exceed $350 for a first violation; in an amount not less than $350 nor more than $700 for a second violation committed within a period of five years of the first violation; and in an amount of not less than $700 nor more than $1,000 for a third and each subsequent violation committed within a period of five years of the first violation. Each week's continued violation shall constitute a separate additional violation.

(b)

Civil penalties may be ordered in any action or proceeding by any court of competent jurisdiction, including but not limited to state and federal courts. All penalties shall be paid to the Town.

(c)

The judgment amount of any civil penalty ordered pursuant to this section, if not paid, may be assessed and levied against the real property which is the subject of the penalty and collected in the same manner as a real property tax.

(3)

In addition to and not in lieu of the remedies authorized above, the Town Board or the enforcement officer may institute any appropriate action or proceeding to prevent, restrain, enjoin, correct or abate any violation or threatened violation of this chapter or to enforce any provision of this chapter.

(4)

In addition to and not in lieu of the remedies authorized above, where a violation of this chapter may cause injury or damage to public or private property or to the public interest or environment or may cause, in whole or in part, noncompliance by the Town with stormwater or erosion control requirements, then, after due notice and opportunity to be heard is given the violator, the Town, its officers, employees and agents, shall have the authority to enter upon private property and take necessary corrective and restorative action to remedy such violation. All costs of such Town action, including but not limited to corrective, engineering, legal and administrative costs, shall be billed to the owner of the property. It not paid, such costs may be assessed and levied against the property and collected in the same manner as real property tax. In the event of an emergency, the Town shall be authorized to enter upon the property and take action without notice to the property owner or opportunity for said owner to be heard.

Withholding of certificate of occupancy. If any building is built or any land development activity is conducted in violation of this chapter, no certificate of occupancy shall be issued and no building or land shall be occupied.

Restoration of lands. Any violator of this chapter may be required to restore land to its undisturbed or prior condition. In the event that restoration is not undertaken within 60 consecutive calendar days after notice and opportunity to be heard, the Town, its officers, employees and agents, shall have the authority to enter upon the private property and take necessary corrective and restorative action to remedy violations of this chapter. All costs of such Town action, including but not limited to corrective, engineering, legal and administrative costs, shall be billed to the owner of the property. If not paid, such costs may be assessed and levied against the property and collected in the same manner as real property taxes.

§ 164-12 Fees for services.

The Town of Highlands may require any person undertaking land development activities regulated by this chapter to reimburse to the Town the Town's reasonable costs for review of SWPPPs, preparation of estimates of guaranty amounts, inspections, administrative work, or SMP maintenance performed by or on behalf of the Town.

Article II Prohibition of Illicit Discharges, Activities and Connections to Separate Storm Sewer System

§ 164-13 Purpose.

The purpose of this article is to provide for the health, safety and general welfare of the citizens of the Town of Highlands through the regulation of nonstormwater discharges to the municipal separate storm sewer system (MS4) to the maximum extent practicable as required by federal and state law. This article establishes methods for controlling the introduction of pollutants into the MS4 in order to comply with requirements of the SPDES General Permit for Municipal Separate Storm Sewer Systems. The objectives of this article are:

To meet the requirements of the SPDES General Permit for Stormwater Discharges from MS4s, Permit No. GP-02-02, or as amended or revised;

To regulate the contribution of pollutants to the MS4 since such systems are not designed to accept, process or discharge nonstormwater wastes;

To prohibit illicit connections, activities and discharges to the MS4;

To establish legal authority to carry out all inspection, surveillance and monitoring procedures necessary to ensure compliance with this article and impose penalties and remedies for noncompliance; and

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 MS4.

§ 164-14 Definitions.

Whenever used in this article, unless a different meaning is stated in a definition applicable to only a portion of this article, the following terms will have meanings set forth below:

303(d) LIST

A list of all surface waters in the state for which beneficial uses of the water (drinking, recreation, aquatic habitat, and industrial use) are impaired by pollutants, prepared periodically by the Department as required by Section 303(d) of the Clean Water Act. 303(d) listed waters are estuaries, lakes and streams that fall short of state surface water quality standards and are not expected to improve within the next two years.

BEST MANAGEMENT PRACTICES (BMPs)

Schedules of activities, prohibitions of practices, general good housekeeping 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.

CLEAN WATER ACT

The Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.) and any amendments thereto.

CONSTRUCTION ACTIVITY

Activities requiring authorization under the SPDES permit for stormwater discharges from construction activity, GP-02-01, as amended or revised. These activities include construction projects resulting in land disturbance of one or more acres. Such activities include but are not limited to clearing and grubbing, grading, excavating and demolition.

DEPARTMENT

The New York State Department of Environmental Conservation.

DESIGN PROFESSIONAL

New York State licensed professional engineer or licensed architect.

HAZARDOUS MATERIALS

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 present or potential hazard to human health, safety, property or the environment when improperly treated, stored, transported, disposed of or otherwise managed.

ILLICIT CONNECTIONS

Any drain or conveyance, whether on the surface or subsurface, which allows an illegal discharge to enter the MS4, including but not limited to:

Any conveyances which allow any nonstormwater discharge including treated or untreated sewage, process wastewater and wash water to enter the MS4 and any connections to the storm drain system from indoor drains and sinks, regardless of whether said drain or connection had been previously allowed, permitted or approved by an authorized enforcement agency; and/or

Any drain or conveyance connected from a commercial or industrial land use to the MS4 which has not been documented in plans, maps or equivalent records and approved by an authorized enforcement agency.

ILLICIT DISCHARGE

Any direct or indirect nonstormwater discharge to the MS4, except as exempted in § 164-18 of this article.

INDIVIDUAL SEWAGE TREATMENT SYSTEM

A facility serving one or more parcels of land or residential households, or a private, commercial or institutional facility, that treats sewage or other liquid wastes for discharge into the groundwaters of New York State, except where a permit for such a facility is required under the applicable provisions of Article 17 of the Environmental Conservation Law.

INDUSTRIAL ACTIVITY

Activities requiring authorization under the SPDES permit for discharges from industrial activities except construction, GP-98-03, as amended or revised.

MUNICIPALITY

The Town of Highlands.

MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4)

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 the Town of Highlands;

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) as defined at 40 CFR 122.2.

NONSTORMWATER DISCHARGE

Any discharge to the MS4 that is not composed entirely of stormwater.

PERSON

Any individual, association, organization, partnership, firm, corporation or other entity recognized by law and acting as either the owner or occupant of premises, or as the owner's or occupant's agent.

POLLUTANT

Dredged spoil, filter backwash, solid waste, incinerator residue, treated or untreated sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand and industrial, municipal, agricultural waste and ballast discharged into water, which may cause or might reasonably be expected to cause pollution of the waters of the state in contravention of the standards.

PREMISES

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

SPECIAL CONDITIONS

Discharge compliance with water quality standards. The condition that applies where a municipality has been notified that the discharge of stormwater authorized under their MS4 permit may have caused or has the reasonable potential to cause or contribute to the violation of an applicable water quality standard. Under this condition the municipality must take all necessary actions to ensure future discharges do not cause or contribute to a violation of water quality standards.

303(d) listed waters. The condition in the municipality's MS4 permit that applies where the MS4 discharges to a 303(d) listed water. Under this condition the stormwater management program must ensure no increase of the listed pollutant of concern to the 303(d) listed water.

Total maximum daily load (TMDL) strategy. The condition in the municipality's MS4 permit where a TMDL, including requirements for control of stormwater discharges, has been approved by EPA for a water body or watershed into which the MS4 discharges. If the discharge from the MS4 did not meet the TMDL stormwater allocations prior to September 10, 2003, the municipality was required to modify its stormwater management program to ensure that reduction of the pollutant of concern specified in the TMDL is achieved.

The condition in the municipality's MS4 permit that applies if a TMDL is approved in the future by EPA for any water body or watershed into which an MS4 discharges. Under this condition the municipality must review the applicable TMDL to see if it includes requirements for control of stormwater discharges. If an MS4 is not meeting the TMDL stormwater allocations, the municipality must, within six months of the TMDL's approval, modify its stormwater management program to ensure that reduction of the pollutant of concern specified in the TMDL is achieved.

STATE POLLUTANT DISCHARGE ELIMINATION SYSTEM (SPDES) STORMWATER DISCHARGE PERMIT

A permit issued by the Department that authorizes the discharge of pollutants to waters of the state.

STORMWATER

Rainwater, surface runoff, snowmelt and drainage.

STORMWATER MANAGEMENT ADMINISTRATOR (SMA)

The Building Inspector, Engineer or other person designated by the Town Board to enforce this chapter. The SMA may also be designated by the municipality to accept and review stormwater pollution prevention plans, forward the plans to the applicable municipal board and inspect stormwater management practices.

TOTAL MAXIMUM DAILY LOAD (TMDL)

The maximum amount of a pollutant to be allowed to be released into a water body so as not to impair uses of the water, allocated among the sources of that pollutant.

WASTEWATER

Water that is not stormwater, is contaminated with pollutants and is or will be discarded.

§ 164-15 Applicability.

This article shall apply to all water entering the MS4 generated on any developed and undeveloped lands unless explicitly exempted by an authorized enforcement agency.

§ 164-16 Responsibility for administration.

The Stormwater Management Administrator(s) [SMA(s)] shall administer, implement and enforce the provisions of this article. Such powers granted or duties imposed upon the authorized enforcement official may be delegated in writing by the SMA as may be authorized by the Town Board.

§ 164-17 Severability.

The provisions of this article are hereby declared to be severable. If any provision, clause, sentence or paragraph of this article or the application thereof to any person, establishment or circumstances shall be held invalid, such invalidity shall not affect the other provisions or application of this article.

§ 164-18 Discharge prohibitions.

Prohibition of illegal discharges. No person shall discharge or cause to be discharged into the MS4 any materials other than stormwater except as provided in Subsection A(1) through (4) below. The commencement, conduct or continuance of any illegal discharge to the MS4 is prohibited except as described as follows:

(1)

The following discharges are exempt from discharge prohibitions established by this article, unless the Department or the Town has determined them to be substantial contributors of pollutants: water line flushing or other potable water sources, landscape irrigation or lawn watering, existing diverted stream flows, rising groundwater, uncontaminated groundwater infiltration to storm drains, uncontaminated pumped groundwater, foundation or footing drains, crawl space or basement sump pumps, air-conditioning condensate, irrigation water, springs, water from individual residential car washing, natural riparian habitat or wetland flows, dechlorinated swimming pool discharges, residential street wash water, water from fire-fighting activities, and any other water source not containing pollutants. Such exempt discharges shall be made in accordance with an appropriate plan for reducing pollutants.

(2)

Discharges approved in writing by the SMA to protect life or property from imminent harm or damage, provided that such approval shall not be construed to constitute compliance with applicable laws and requirements, and further provided that such discharges may be permitted for a specified time period and under such conditions as the SMA may deem appropriate to protect such life and property while reasonably maintaining the purpose and intent of this article.

(3)

Dye testing in compliance with applicable state and local laws is an allowable discharge, but requires a verbal notification to the SMA prior to the time of the test.

(4)

The prohibition shall not apply to any discharge permitted under an SPDES permit, waiver or waste discharge order issued to the discharger and administered under the authority of the Department, 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 MS4.

Prohibition of illicit connections.

(1)

The construction, use, maintenance or continued existence of illicit connections to the MS4 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 article if the person connects a line conveying sewage to the municipality's MS4, or allows such a connection to continue.

§ 164-19 Prohibition against failing individual sewage treatment systems.

No person shall operate a failing individual sewage treatment system in areas tributary to the municipality's MS4. A failing individual sewage treatment system is one which has one or more of the following conditions:

The backup of sewage into a structure.

Discharges of treated or untreated sewage onto the ground surface.

A connection or connections to a separate stormwater sewer system.

Liquid level in the septic tank above the outlet invert.

Structural failure of any component of the individual sewage treatment system that could lead to any of the other failure conditions as noted in this section.

Contamination of off-site groundwater.

§ 164-20 Prohibition against activities contaminating stormwater; discharge prohibitions.

Activities that are subject to the requirements of this section are those types of activities that:

(1)

Cause or contribute to a violation of the municipality's MS4 SPDES permit.

(2)

Cause or contribute to the municipality being subject to the special conditions as defined in § 164-14, Definitions, of this article.

Such activities include prohibited discharges or connections and failing individual sewage treatment systems as defined in § 164-19, improper management of animal waste or any other activity that causes or contributes to violations of the municipality's MS4 SPDES permit authorization.

Upon notification to a person that he or she is engaged in activities that cause or contribute to violations of the municipality's MS4 SPDES permit authorization, that person shall take all reasonable actions (as determined or approved by the SMA) to correct such activities such that he or she no longer causes or contributes to violations of the municipality's MS4 SPDES permit authorization.

§ 164-21 Requirement to prevent, control and reduce stormwater pollutants by the use of best management practices.

Best management practices. Where the SMA has identified illicit discharges as defined in § 164-14 or activities contaminating stormwater as defined in § 164-20, the Town may require implementation of best management practices (BMPs) to control those illicit discharges and activities.

(1)

The owner or operator of a commercial or industrial establishment shall provide, at his or her own expense, reasonable protection from accidental discharge of prohibited materials or other wastes into the MS4 through the use of structural and nonstructural BMPs.

(2)

Any person responsible for a property or premises that is, or may be, the source of an illicit discharge as defined in § 164-14 or an activity contaminating stormwater as defined in § 164-20 may be required to implement, at said person's expense, additional structural and nonstructural BMPs to reduce or eliminate the source of pollutants to the MS4.

(3)

Compliance with all terms and conditions of a valid SPDES permit authorizing the discharge of stormwater associated with industrial activity, to the extent practicable, shall be deemed compliance with the provisions of this section.

Individual sewage treatment systems response to special conditions requiring no increase of pollutants or requiring a reduction of pollutants. Where individual sewage treatment systems are contributing to the municipality's being subject to the special conditions as defined in § 164-14 of this article, the owner or operator of such individual sewage treatment systems shall be required to:

(1)

Maintain and operate individual sewage treatment systems as follows:

(a)

Inspect the septic tank annually to determine scum and sludge accumulation; septic tanks must be pumped out whenever the bottom of the scum layer is within three inches of the bottom of the outlet baffle or sanitary tee or the top of the sludge is within 10 inches of the bottom of the outlet baffle or sanitary tee; inspection of the tank for cracks, leaks and blockages shall be done by the septage hauler at the time of pumping of the tank contents;

(b)

Avoid the use of septic tank additives;

(c)

Avoid the disposal of excessive quantities of detergents, kitchen wastes, laundry wastes and household chemicals; and

(d)

Avoid the disposal of cigarette butts, disposable diapers, sanitary napkins, trash and other such items.

(2)

Repair or replace individual sewage treatment systems as follows:

(a)

In accordance with 10 NYCRR Appendix 75A to the maximum extent practicable.

(b)

A design professional licensed to practice in New York State shall prepare design plans for any type of absorption field that involves:

[1]

Relocating or extending an absorption area to a location not previously approved for such.

[2]

Installation of a new subsurface treatment system at a new or the same location.

[3]

Use of alternate system or innovative system design or technology.

(c)

A written certificate of compliance shall be submitted by the design professional to the municipality at the completion of construction of the repair or replacement system.

§ 164-22 Suspension of access to MS4.

The SMA 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, to the health or welfare of persons, or to the MS4. The SMA shall notify the person of such suspension within a reasonable time thereafter in writing of the reasons for the suspension. If the violator fails to comply with a suspension order, issued in an emergency, the SMA may take such steps as deemed necessary to prevent or minimize damage to the MS4 or to minimize danger to persons.

Suspension due to the detection of illicit discharge. Any person discharging to the municipality's MS4 in violation of this article may have his or her MS4 access terminated if such termination would abate or reduce an illicit discharge. The SMA will notify a violator in writing of the proposed termination of its MS4 access and the reasons therefor. The violator may petition the SMA for a reconsideration and hearing. Access may be granted by the SMA if he/she finds that the illicit discharge has ceased and the discharger has taken steps to prevent its recurrence. Access may be denied if the SMA determines in writing that the illicit discharge has not ceased or is likely to recur. A person commits an offense if the person reinstates MS4 access to premises terminated pursuant to this section, without the prior approval of the SMA.

§ 164-23 Industrial or construction activity discharges; suspension of access to MS4.

Any person subject to an industrial or construction activity SPDES 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 the municipality prior to the allowing or continuance of discharges to the MS4.

§ 164-24 Access to facilities; monitoring of discharges.

Applicability. This section applies to all facilities that the SMA determines necessary to inspect to enforce any provision of this article, or whenever the authorized enforcement agency has cause to believe that there exists, or potentially exists, in or upon any premises any condition which constitutes a violation of this article.

Access to facilities.

(1)

The SMA shall be permitted to enter and inspect facilities subject to regulation under this article as often as may be necessary to determine compliance with this article. 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 the SMA.

(2)

Facility operators shall allow the SMA ready access to all parts of the premises for the purposes of inspection, sampling, examination and copying of records as may be required to implement this article.

(3)

The municipality shall have the right to set up on any facility subject to this article such devices as are necessary in the opinion of the SMA to conduct monitoring and/or sampling of the facility's stormwater discharge.

(4)

The municipality has the right to require the facilities subject to this article to install monitoring equipment as is reasonably necessary (and subject to approval by the SMA) to determine compliance with this article. 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.

(5)

Unreasonable delays in allowing the municipality access to a facility subject to this article is a violation of this article. A person who is the operator of a facility subject to this article commits an offense if the person denies the municipality reasonable access to the facility for the purpose of conducting any activity authorized, or required by this article.

(6)

If the SMA 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 article, 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 article or any order issued hereunder, then the SMA may seek issuance of a search warrant from any court of competent jurisdiction.

§ 164-25 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 which are resulting or may result in illegal discharges or pollutants discharging into the MS4, 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 nonhazardous materials, said person shall notify the Town in person or by telephone or facsimile no later than the next business day. Notifications in person or by telephone shall be confirmed by written notice addressed and mailed to the Town within three business days of the telephone 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 years.

§ 164-26 Enforcement; penalties for offenses.

Notice of violation. When the Town's SMA finds that a person has violated a prohibition or failed to meet a requirement of this chapter or failed to comply with a permit or approval condition related to the subject matter of this chapter (all deemed a "violation" of this chapter), he/she may order compliance by written notice of violation to the responsible person. Such notice may require without limitation:

(1)

The elimination of illicit connections or discharges;

(2)

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

(3)

The abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property and the environment;

(4)

The performance of monitoring, analyses and reporting;

(5)

Payment of a fine and/or civil monetary penalty; and

(6)

The implementation of source control or treatment BMPs. If abatement of a violation and/or restoration of affected property or the environment 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, the work will be done by a designated governmental agency or a contractor and the expense thereof shall be charged to the violator, and, if unpaid, said amount may be assessed and levied as a lien against the violator's premises and collected in the same manner as a real property tax.

Penalties.

(1)

In addition to or as an alternative to any penalty provided herein or by law, any person who violates this article shall be guilty of a violation punishable by a fine not exceeding $350 or imprisonment for a period not to exceed 15 days, or both, for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, punishable by a fine not less than $350 nor more than $700 or imprisonment for a period not to exceed 15 days, or both; and upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine not less than $700 nor more than $1,000 or imprisonment for a period not to exceed six months, or both. Each week's continued violation shall constitute a separate additional violation.

(2)

Civil penalties.

(a)

In addition to and not in lieu of the above, any person who violates this chapter shall be liable to the Town for a civil penalty in an amount not to exceed $350 for a first violation; in an amount not less than $350 nor more than $700 for a second violation committed within a period of five years of the first violation; and in an amount of not less than $700 nor more than $1,000 for a third and each subsequent violation committed within a period of five years of the first violation. Each week's continued violation shall constitute a separate additional violation.

(b)

Civil penalties may be ordered in any action or proceeding by any court of competent jurisdiction, including but not limited to state and federal courts. All penalties shall be paid to the Town.

(c)

(3)

In addition to and not in lieu of the remedies authorized above, the SMA or the Town Board may institute any appropriate action or proceeding to prevent, restrain, enjoin, correct or abate any violation or threatened violation or to enforce any provision of this chapter.

§ 164-27 Appeal of notice of violation.

Any person receiving a notice of violation may appeal the determination of the SMA to the Town Board within 15 days of its issuance, which shall hear the appeal within 30 days after the filing of the appeal, and within five days of making its decision, file its decision in the office of the Town Clerk and mail a copy of its decision by certified mail to the appellant. Any person aggrieved by the decision of the Town Board may appeal such decision to the Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules. Such proceeding must be commenced within 30 days after the decision is filed in the Town Clerk's office or shall be time-barred.

The appeal of a notice of violation shall stay an order contained in the notice of violation issued by the SMA, unless the SMA determines in writing that a stay of the order, or portion thereof, would cause undue harm to a person, property, equipment, the environment or the Town's storm sewer system. In such case, an appeal shall not stay the SMA's order.

§ 164-28 Corrective 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 an appeal, within five business days of the decision of the municipal authority upholding the decision of the SMA, then the SMA shall have authority to request the owner's permission for access to the subject private property to take any and all measures reasonably necessary to abate the violation and/or restore the property.

If refused access to the subject private property, the SMA may seek a warrant in a court of competent jurisdiction to be authorized to enter upon the property to determine whether a violation has occurred. Upon determination that a violation has occurred, the SMA may seek a court order to take any and all measures reasonably necessary to abate the violation and/or restore the property.

The cost of implementing and maintaining such measures shall be the sole responsibility of the discharger and may be collected in the same manner as set forth in § 164-26A(6).

§ 164-29 Injunctive relief.

It shall be a violation of this article for any person to violate any provision or fail to comply with any of the requirements of this article or fail to comply with a permit or approval condition related to the subject matter of this article. If a person has violated or continues to violate the provisions of this article, the SMA may petition for a preliminary or permanent injunction restraining the person from activities which would create further violations or compelling the person to perform abatement or remediation of the violation.

§ 164-30 Alternative remedies.

Where a person has violated a provision of this article, he/she may be eligible for alternative remedies in lieu of a civil penalty, upon recommendation of the Town Attorney and concurrence of the SMA, where:

(1)

The violation was unintentional.

(2)

The violator has no history of previous violations of this article.

(3)

Environmental damage was minimal.

(4)

The violator acted quickly to remedy the violation.

(5)

The violator cooperated in investigation and resolution.

Alternative remedies may consist of one or more of the following:

(1)

Attendance at compliance workshops.

(2)

Storm drain stenciling or storm drain marking.

(3)

River, steam or creek cleanup activities.

§ 164-31 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 article 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.

§ 164-32 Remedies not exclusive.

The remedies listed in this article 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.