[HISTORY: Adopted by the Town Board of the Town of Amherst 9-17-2007 by L.L. No.
11-2007.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Building construction administration — See Ch. 83.
Environmental quality review — See Ch. 104.
Reimbursement of expert fees — See Ch. 108.
Zoning — See Ch. 203.
Subdivision of land — See Ch. 204.
[1]
Editor's Note: Former Ch. 172, Swine, adopted 8-2-1934,
was repealed 3-16-1981.
The purpose of this article is to provide for the health, safety,
and general welfare of the citizens of the Town of Amherst 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:
A.
To meet the requirements of the SPDES general permit for stormwater
discharges from MS4s, Permit No. GP-02-02 or as amended or revised;
B.
To regulate the contribution of pollutants to the MS4 since such
systems are not designed to accept, process or discharge nonstormwater
wastes;
C.
To prohibit illicit connections, activities and discharges to the
MS4;
D.
To establish legal authority to carry out all inspection, surveillance
and monitoring procedures necessary to ensure compliance with this
chapter; and
E.
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.
Whenever used in this chapter, unless a different meaning is
stated in a definition applicable to only a portion of this chapter,
the following terms will have meanings set forth below:
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.
A property owner or agent of a property owner who has filed
an application for a land development activity.
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.
Any structure, either temporary or permanent, having walls
and a roof, designed for the shelter of any person, animal, or property,
and occupying more than 100 square feet of area.
A natural or artificial watercourse with a definite bed and
banks that conducts continuously or periodically flowing water.
The Federal Water Pollution Control Act (33 U.S.C. § 1251
et seq.), and any subsequent amendments thereto.
Any activity that removes the vegetative surface cover.
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.
The deliberate appropriation of property by its owner for
general public use.
The New York State Department of Environmental Conservation.
The New York State Stormwater Management Design Manual, most
recent version including applicable updates, that serves as the official
guide for stormwater management principles, methods and practices.
New York State licensed professional engineer, licensed architect,
or certified professional in erosion and sediment control (CPESC).
A person who undertakes land development activities.
The most recent version of the New York Standards and Specifications
for Erosion and Sediment Control Manual, commonly known as the "Blue
Book."
Excavation or fill of material, including the resulting conditions
thereof.
Any material, including any substance, waste, or combination
thereof, which because of its quantity, concentration, or physical,
chemical, or infectious characteristics may cause, or significantly
contribute to, a substantial present or potential hazard to human
health, safety, property, or the environment when improperly treated,
stored, transported, disposed of, or otherwise managed.
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; 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.
Any direct or indirect nonstormwater discharge to the MS4, except as exempted in § 172-5 of this chapter.
Those surfaces, improvements and structures that cannot effectively
infiltrate rainfall, snowmelt and water (e.g., building rooftops,
pavement, sidewalks, driveways, etc.).
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.
Activities requiring the SPDES permit for discharges from
industrial activities except construction, GP-98-03, as amended or
revised.
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.
The process of percolating stormwater into the subsoil.
An area that is inundated or saturated by surface water or
groundwater at a frequency and duration sufficient to support a prevalence
of vegetation typically adapted for life in saturated soil conditions,
commonly known as "hydrophytic vegetation."
Construction activity including clearing, grading, excavating,
soil disturbance or placement of fill that results in land disturbance
of equal to or greater than one acre, or activities disturbing less
than one acre of total land area that is part of a larger common plan
of development or sale, even though multiple separate and distinct
land development activities may take place at different times on different
schedules.
The legal or beneficial owner of land, including those holding
the right to purchase or lease the land, or any other person holding
proprietary rights in the land.
A legally recorded document that acts as a property deed
restriction, and which provides for long-term maintenance of stormwater
management practices.
Municipal separate storm sewer system.
The Town of Amherst.
A conveyance or system of conveyances (including roads with
drainage systems, municipal streets, catch basins, curbs, gutters,
ditches, man-made channels, or storm drains):
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.
Any discharge to the MS4 that is not composed entirely of
stormwater.
Any individual, association, organization, partnership, firm,
corporation or other entity recognized by law.
Clearing a parcel of land in distinct pieces or parts, with
the stabilization of each piece completed before the clearing of the
next.
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.
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 as a cause of impairment of any
water body that will receive a discharge from the land development
activity.
Any building, lot, parcel of land, or portion of land, whether
improved or unimproved, including adjacent sidewalks and parking strips.
Land development activity.
The replenishment of underground water reserves.
Measures that prevent eroded sediment from leaving the site.
Cold water fisheries, shellfish beds, swimming beaches, groundwater
recharge areas, water supply reservoirs, and habitats for threatened,
endangered or special concern species.
A permit under the New York State Pollutant Discharge Elimination
System (SPDES) issued to developers of construction activities to
regulate disturbance of one or more acres of land.
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 specify stormwater control standards.
Discharge compliance with water quality standards: the condition
that applies where a municipality has been notified that the discharge
of stormwater authorized under its 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.
The use of practices that prevent exposed soil from eroding.
A permit issued by the Department that authorizes the discharge
of pollutants to waters of the state.
An order issued which requires that all construction activity
on a site be stopped.
Rainwater, surface runoff, snowmelt and drainage.
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.
The use of structural or nonstructural practices that are
designed to reduce stormwater runoff and mitigate its adverse impacts
on property, natural resources and the environment.
One or a series of stormwater management practices installed,
stabilized and operating for the purpose of controlling stormwater
runoff.
The employee duly licensed in New York State as a professional
engineer (PE), licensed architect, or certified professional in erosion
and sediment control (CPESC) designated by the Town of Amherst to
enforce this chapter. The SMO 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.
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.
A plan for controlling stormwater runoff and pollutants from
a site during and after construction activities.
Flow on the surface of the ground, resulting from precipitation.
Includes:
Rivers;
Creeks;
Perennial streams or ditches;
Intermittent streams or ditches;
Lakes and ponds that have an outlet that discharge to any of
the foregoing streams;
Culverts and other man-made or artificial conveyances that carry
stream flow from any of the forgoing; and
Channelized streams.
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.
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.
Total maximum daily load.
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.
Water that is not stormwater, is contaminated with pollutants
and is or will be discarded.
A permanent or intermittent stream or other body of water,
either natural or man-made, which gathers or carries surface water.
A channel that directs surface runoff to a watercourse or
to the public storm drain.
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.
The Stormwater Management Officer(s) [SMO(s)] shall administer,
implement, and enforce the provisions of this chapter. Such powers
granted or duties imposed upon the authorized enforcement official
may be delegated in writing by the SMO as may be authorized by the
municipality.
A.
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. 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 municipality has determined
them to be substantial contributors of pollutants: waterline 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,
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 SMO to protect life or property
from imminent harm or damage, provided that such approval shall not
be construed to constitute compliance with other applicable laws and
requirements, and further provided that such discharges may be permitted
for a specified time period and under such conditions as the SMO may
deem appropriate to protect such life and property while reasonably
maintaining the purpose and intent of this chapter.
(3)
Dye testing in compliance with applicable state and local laws is
an allowable discharge, but requires a verbal notification to the
SMO 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.
B.
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 chapter if the
person connects a line conveying sewage to the municipality's
MS4, or allows such a connection to continue.
No persons 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:
A.
The backup of sewage into a structure.
B.
Discharges of treated or untreated sewage onto the ground surface.
C.
A connection or connections to a separate stormwater sewer system.
D.
Liquid level in the septic tank above the outlet invert.
E.
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.
F.
Contamination of off-site groundwater.
A.
Activities that are subject to the requirements of this section are
those types of activities that:
B.
Such activities include failing individual sewage treatment systems as defined in § 172-6, improper management of pet waste or any other activity that causes or contributes to violations of the municipality's MS4 SPDES permit authorization.
C.
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 to correct such activities such that he or she no longer causes
or contributes to violations of the municipality's MS4 SPDES
permit authorization.
A.
Best management practices. Where the SMO has identified illicit discharges as defined in § 172-2 of this chapter, or activities contaminating stormwater as defined in § 172-7 of this chapter, the municipality 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, which is, or may be, the source of an illicit discharge as defined in § 172-2 of this chapter, or an activity contaminating stormwater as defined in § 172-7 of this chapter, may be required to implement, at said person's expense, additional structural and nonstructural BMPs to reduce or eliminate the source of pollutant(s) 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.
B.
Individual sewage treatment systems. In 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 § 172-2 of this chapter, 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;
(b)
Avoid the use of septic tank additives;
(c)
Avoid the disposal of excessive quantities of detergents, kitchen
wastes, laundry wastes, and household chemicals;
(d)
Avoid the disposal of cigarette butts, disposable diapers, sanitary
napkins, trash and other such items; and
(e)
Inspect the tank for cracks, leaks and blockages by the septage
hauler at the time of pumping of the tank contents.
(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:
(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.
A.
The SMO 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 SMO 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 SMO may take such steps as deemed necessary to prevent or minimize
damage to the MS4 or to minimize danger to persons.
B.
Suspension due to the detection of illicit discharge. Any person
discharging to the municipality's MS4 in violation of this chapter
may have his or her MS4 access terminated if such termination would
abate or reduce an illicit discharge. The SMO will notify a violator
in writing of the proposed termination of its MS4 access and the reasons
therefor. The violator may petition the SMO for a reconsideration
and hearing. Access may be granted by the SMO 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 SMO 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 SMO.
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 of
discharges to the MS4.
A.
Applicability. This section applies to all facilities that the SMO
must inspect to enforce any provision of this chapter, 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.
B.
Access to facilities.
(1)
The SMO shall be permitted to enter and inspect facilities subject
to regulation under this chapter as often as may be necessary to determine
compliance with this 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 SMO.
(2)
Facility operators shall allow the SMO ready and safe 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
SMO 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
to determine compliance with this chapter. 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 chapter. A person who
is the operator of a facility subject to this chapter 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 chapter.
(6)
If the SMO 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 chapter
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 SMO may seek
issuance of a search warrant from any court of competent jurisdiction.
Notwithstanding other requirements of article, 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 municipality 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 municipality
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.
A.
Notice of violation. When the municipality's SMO finds that
a person has violated a prohibition or failed to meet a requirement
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;
(4)
The performance of monitoring, analyses, and reporting;
(5)
The implementation of source control or treatment BMPs. If abatement
of a violation and/or restoration of affected property are 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
B.
Penalties. 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 six months, 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 six months, 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. However, for the purposes of conferring jurisdiction upon
courts and judicial officers generally, violations of this article
shall be deemed violations and for such purpose only all provisions
of law relating to violations shall apply to such violations. Each
week's continued violation shall constitute a separate additional
violation.
Any person receiving a notice of violation may challenge the
notice in a special proceeding commenced pursuant to Article 78 of
the Civil Practice Law and Rules of the State of New York.
A.
If the violation has not been corrected pursuant to the requirements
set forth in the notice of violation, or, in the event of a judicial
challenge, within five business days of receipt by the violation of
the court's order, then the SMO shall 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.
B.
If refused access to the subject private property, the SMO 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 SMO 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.
It shall be unlawful for any person to violate any provision
or fail to comply with any of the requirements of this article. If
a person has violated or continues to violate the provisions of this
article, the SMO 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.
A.
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 Stormwater Management Officer and concurrence
of the Municipal Code Enforcement Officer, where:
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.
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.
It is hereby determined that:
A.
Land development activities and associated increases in site impervious
cover often alter the hydrologic response of local watersheds and
increase stormwater runoff rates and volumes, flooding, stream channel
erosion, or sediment transport and deposition.
B.
This stormwater runoff contributes to increased quantities of waterborne
pollutants, including siltation of aquatic habitat for fish and other
desirable species.
C.
Clearing and grading during construction tends to increase soil erosion
and add to the loss of native vegetation necessary for terrestrial
and aquatic habitat.
D.
Improper design and construction of stormwater management practices
can increase the velocity of stormwater runoff thereby increasing
stream bank erosion and sedimentation.
E.
Impervious surfaces allow less water to percolate into the soil,
thereby decreasing groundwater recharge and stream base flow.
F.
Substantial economic losses can result from these adverse impacts
on the waters of the municipality.
G.
Stormwater runoff, soil erosion and nonpoint source pollution can
be controlled and minimized through the regulation of stormwater runoff
from land development activities.
H.
The regulation of stormwater runoff discharges from land development
activities in order to control and minimize increases in stormwater
runoff rates and volumes, soil erosion, stream channel erosion, and
nonpoint source pollution associated with stormwater runoff is in
the public interest and will minimize threats to public health and
safety.
I.
Regulation of land development activities by means of performance
standards governing stormwater management and site design will produce
development 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.
The purpose of this article 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 of fact in § 172-20 hereof. This article seeks to meet those purposes by achieving the following objectives:
A.
Meet the requirements of minimum measures 4 and 5 of the SPDES general
permit for stormwater discharges from municipal separate stormwater
sewer systems (MS4s), Permit No. GP-02-02, or as amended or revised;
B.
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, or as amended or revised;
C.
Minimize increases in stormwater runoff from land development activities
in order to reduce flooding, siltation, increases in stream temperature,
and streambank erosion and maintain the integrity of stream channels;
D.
Minimize increases in pollution caused by stormwater runoff from
land development activities which would otherwise degrade local water
quality;
E.
Minimize the total annual volume of stormwater runoff which flows
from any specific site during and following development to the maximum
extent practicable; and
F.
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 and eliminate threats to public safety.
In accordance with § 10 of the Municipal Home Rule
Law of the State of New York, the Town Board has the authority to
enact local laws and amend local laws to promote the health, safety
or general welfare of the Town of Amherst and for the protection and
enhancement of its physical environment. The Amherst Town Board may
include in any such local law provisions for the appointment of any
municipal officer, employees, or independent contractor to effectuate,
administer and enforce such local law.
B.
The municipality shall designate a Stormwater Management Officer
who shall accept and review all stormwater pollution prevention plans
and forward such plans to the applicable municipal board. The Stormwater
Management Officer may review the plans, engage the services of a
registered professional engineer to review the plans, specifications
and related documents at a cost not to exceed a fee schedule established
by said governing board, or accept the certification of a licensed
professional that the plans conform to the requirements of this chapter.
C.
All land development activities subject to review and approval by
the Planning Board of the Town of Amherst under site plan regulations
shall be reviewed subject to the standards contained in this article.
The following activities are exempt from review under this article:
A.
Agricultural activity as defined in this chapter.
B.
Silvicultural activity, except that landing areas and log haul roads
are subject to this article.
C.
Routine maintenance activities that disturb fewer than five acres
and are performed to maintain the original line and grade, hydraulic
capacity or original purpose of a facility.
D.
Repairs to any stormwater management practice or facility deemed
necessary by the Stormwater Management Officer.
E.
Any part of a subdivision if a plat for the subdivision has been
approved by the Town of Amherst on or before the effective date of
this article.
F.
Land development activities for which a building permit has been
approved on or before the effective date of this article.
G.
Cemetery graves.
H.
Installation of fence, sign, telephone, and electric poles and other
kinds of posts or poles.
I.
Emergency activity immediately necessary to protect life, property
or natural resources.
J.
Activities of an individual engaging in home gardening by growing
flowers, vegetable and other plants primarily for use by that person
and his or her family, or installing or maintaining private use sheds
and ornamental ponds.
K.
Landscaping and horticultural activities in connection with an existing
structure.
A.
Stormwater pollution prevention plan requirements. No application
for approval of a land development activity shall be approved until
the appropriate board has received an acceptable stormwater pollution
prevention plan (SWPPP) prepared in accordance with the specifications
in this article.
B.
Contents of stormwater pollution prevention plans.
(1)
All SWPPPs shall provide the following background information and
erosion and sediment controls:
(a)
Background information about the scope of the project, including
location, type and size of project;
(b)
Site map/construction drawing(s) for the project, including
a general location map. At a minimum, the site map should 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);
(c)
Description of the soil(s) present at the site;
(d)
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;
(e)
Description of the pollution prevention measures that will be
used to control litter, construction chemicals and construction debris
from becoming a pollutant source in stormwater runoff;
(f)
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;
(g)
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;
(h)
A site map/construction drawing(s) specifying the location(s),
size(s) and length(s) of each erosion and sediment control practice;
(i)
Dimensions, material specifications and installation details
for all erosion and sediment control practices, including the siting
and sizing of any temporary sediment basins;
(j)
Temporary practices that will be converted to permanent control
measures;
(k)
Implementation schedule for staging temporary erosion and sediment
control practices, including the timing of initial placement and duration
that each practice should remain in place;
(l)
Maintenance schedule to ensure continuous and effective operation
of the erosion and sediment control practice;
(m)
Name(s) of the receiving water(s);
(n)
Delineation of SWPPP implementation responsibilities for each
part of the site;
(o)
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; and
(p)
Any existing data that describes the stormwater runoff at the
site.
(2)
Land development activities as defined in Article I, § 172-2, and meeting Condition A, B or C below shall also include water quantity and water quality controls (post-construction stormwater runoff controls) as set forth in Subsection B(3) below as applicable:
(a)
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.
(b)
Condition B: stormwater runoff from land development activities
disturbing five or more acres.
(c)
Condition C: stormwater runoff from land development activity
disturbing between one 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.
(3)
SWPPP requirements for Conditions A, B and C:
(b)
Description of each post-construction stormwater management
practice.
(c)
Site map/construction drawing(s) showing the specific location(s)
and size(s) of each post-construction stormwater management practice.
(d)
Hydrologic and hydraulic analysis for all structural components
of the stormwater management system for the applicable design storms.
(e)
Comparison of post-development stormwater runoff conditions
with pre-development conditions.
(f)
Dimensions, material specifications and installation details
for each post-construction stormwater management practice.
(g)
Maintenance schedule to ensure continuous and effective operation
of each post-construction stormwater management practice.
(h)
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.
(j)
For Condition A, the SWPPP shall be prepared by a landscape
architect, certified professional or professional engineer and must
be signed by the professional preparing the plan, who shall certify
that the design of all stormwater management practices meet the requirements
of this chapter.
[Added 9-15-2008 by L.L. No. 13-2008]
C.
Plan certification. The SWPPP shall be prepared by a landscape architect,
certified professional or 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.
E.
Contractor certification.
(1)
Each contractor and subcontractor identified in the SWPPP 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.
F.
Plan-in-hand. 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.
All land development activities shall be subject to the following
performance and design criteria:
A.
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:
(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").
B.
Water quality standards. Any land development activity shall not
cause an increase in turbidity that will result in substantial visible
contrast to natural conditions in surface waters of the State of New
York.
C.
Equivalence to technical standards. Where stormwater management practices are not in accordance with technical standards, the applicant or developer must demonstrate equivalence to the technical standards set forth in Subsection A(1) or A(2), and the SWPPP shall be prepared by a licensed professional.
[Added 9-15-2008 by L.L. No. 13-2008]
A.
Maintenance during construction.
(1)
The applicant or developer of the land development activity shall
at all times properly operate and maintain all facilities and systems
of treatment and control (and related appurtenances) which are installed
or used by the applicant or developer to achieve compliance with the
conditions of this article. Sediment shall be removed from sediment
traps or sediment ponds whenever their design capacity has been reduced
by 50%.
(2)
For land development activities as defined in § 172-2 and meeting Condition A, B, or C in § 172-25B(2), the applicant shall have a qualified professional conduct site inspections and document the effectiveness of all erosion and sediment control practices every seven days and within 24 hours of any storm event producing 0.5 inch of precipitation or more. Inspection reports shall be maintained in a site logbook.
[Amended 9-15-2008 by L.L. No. 13-2008]
B.
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 agreement
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 of
Amherst to ensure that the facility is maintained in proper working
condition to meet design standards and any other provisions established
by this article. The easement shall be recorded by the grantor in
the office of the County Clerk after approval by the counsel for the
Town of Amherst.
C.
Maintenance after construction. The owner or operator of permanent
stormwater management appurtenances installed in accordance with this
article shall be operated and maintained to achieve the goals of this
article. Proper operation and maintenance also includes, as a minimum,
the following:
(1)
A preventive/corrective maintenance program for all critical 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)
Discharges from the SMPs shall not exceed design criteria or cause
or contribute to water quality standard violations.
D.
Maintenance agreements. The Town of Amherst shall approve a formal
maintenance agreement 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 agreement shall be consistent with the terms and conditions
of Schedule B of this chapter, entitled "Sample Stormwater Control
Facility Maintenance Agreement."[1] The Town of Amherst, in lieu of a maintenance agreement,
at its sole discretion, may accept dedication of any existing or future
stormwater management facility, provided 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: Schedule B is included at the end of this chapter.
A.
Erosion and sediment control inspection.
(1)
The Town of Amherst Stormwater Management Officer may require such
inspections as necessary to determine compliance with this article
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 article and the stormwater pollution prevention plan (SWPPP)
as approved. To obtain inspections, the applicant shall notify the
Town of Amherst enforcement official at least 48 hours before any
of the following as required by the Stormwater Management Officer:
(a)
Start of construction.
(b)
Installation of sediment and erosion control measures.
(c)
Completion of site clearing.
(d)
Completion of rough grading.
(e)
Completion of final grading.
(f)
Close of the construction season.
(g)
Completion of final landscaping.
(h)
Successful establishment of landscaping in public areas.
(2)
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 any violations are corrected and all work
previously completed has received approval by the Stormwater Management
Officer.
B.
Stormwater management practice inspections. The Town of Amherst Stormwater
Management Officer is responsible for conducting inspections of stormwater
management practices (SMPs). All applicants are required to submit
as-built plans for any stormwater management practices located on
site after final construction is completed. The plan must show the
final design specifications for all stormwater management facilities
and must be certified by a professional engineer.
C.
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.
D.
Submission of reports. The Town of Amherst Stormwater Management
Officer may require monitoring and reporting from entities subject
to this article as are necessary to determine compliance with this
article.
E.
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 Amherst the right to enter
the property at reasonable times and in a reasonable manner for the
purpose of inspection.
A.
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 Amherst in
its approval of the stormwater pollution prevention plan, the Town
of Amherst may require the applicant or developer to provide, prior
to construction, a performance bond, 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 Amherst as the beneficiary. The security shall be in an amount
to be determined by the Town of Amherst 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 Amherst, provided that such
period shall not be less than one year from the date of final acceptance
or such other certification that the facilities have 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 Amherst. Per-annum interest
on cash escrow deposits shall be reinvested in the account until the
surety is released from liability.
B.
Maintenance guarantee. Where stormwater management and erosion and
sediment control facilities are to be operated and maintained by the
developer or by a corporation that owns or manages a commercial or
industrial facility, the developer, prior to construction, may be
required to provide the Town of Amherst with an irrevocable letter
of credit from an approved financial institution or surety to ensure
proper operation and maintenance of all stormwater management and
erosion control facilities, both during and after construction, and
until the facilities are removed from operation. If the developer
or landowner fails to properly operate and maintain stormwater management
and erosion and sediment control facilities, the Town of Amherst may
draw upon the account to cover the costs of proper operation and maintenance,
including engineering and inspection costs.
C.
Recordkeeping. The Town of Amherst may require entities subject to
this article to maintain records demonstrating compliance with this
article.
A.
Notice of violation. When the Town of Amherst determines that a land
development activity is not being carried out in accordance with the
requirements of this article, the Stormwater Management Officer may
issue a written notice of violation to the landowner. 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.
(5)
A statement of the penalty or penalties that shall or may be assessed
against the person to whom the notice of violation is directed.
(6)
A statement that the determination of violation may be appealed to
the municipality by filing a written notice of appeal to the SMO within
15 days of service of notice of violation.
B.
Stop-work orders. The Town of Amherst may issue a stop-work order
for violations of this article. Persons receiving a stop-work order
shall be required to halt all land development activities, except
those activities that address the violations leading to the stop-work
order. The stop-work order shall be in effect until the Town of Amherst
confirms that the land development activity is in compliance and the
violation has been satisfactorily addressed. Failure to address 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 article.
C.
Violations. Any land development activity that is commenced or is
conducted contrary to this article may be restrained by injunction
or otherwise abated in a manner provided by law.
D.
Penalties. 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 six months, 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 six months, 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. However, for the purposes of conferring jurisdiction upon
courts and judicial officers generally, violations of this article
shall be deemed violations and for such purpose only all provisions
of law relating to violations shall apply to such violations. Each
week's continued violation shall constitute a separate additional
violation.
E.
Withholding of certificate of occupancy. If any building or land
development activity is installed or conducted in violation of this
article, the Stormwater Management Officer may prevent the occupancy
of said building or land. The Stormwater Management Officer shall
notify the Commissioner of Building that there has been a violation
of this article and that no certificate of occupancy shall issue until
the violation is satisfactorily remediated.
F.
Restoration of lands. Any violator may be required to restore land
to its undisturbed condition. In the event that restoration is not
undertaken within a reasonable time after notice, the Town of Amherst
may take necessary corrective action, the cost of which shall become
a lien upon the property until paid.
The Town of Amherst may require any person undertaking land development activities regulated by this chapter to pay reasonable costs at prevailing rates for review of SWPPPs, inspections, or SMP maintenance performed by the Town of Amherst or performed by a third party for the Town of Amherst. Fees shall be set and paid as required by Chapter 108 of the Code of the Town of Amherst.
[Added 9-15-2008 by L.L. No. 13-2008]
The provisions of this chapter are hereby declared to be severable.
If any provision, clause, sentence, or paragraph of this chapter 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 chapter.