[Adopted 9-14-2009]
A.
The purpose of this article is to provide for the health, safety,
and general welfare of the citizens of the Town of Cumberland through
review and approval of post-construction stormwater management plans
and monitoring and enforcement of compliance with such plans as required
by federal and state law.
B.
This article establishes methods for post-construction stormwater
management in order to comply with minimum control measure requirements
of the Federal Clean Water Act, of federal regulations and of Maine's
small municipal separate storm sewer systems general permit.
The objectives of this article are to:
A.
Reduce the impact of post-construction discharge of stormwater on
receiving waters; and
B.
Reduce stormwater runoff rates and volumes, soil erosion and nonpoint
source pollution, wherever possible, through use of best management
practices as promulgated by the Maine Department of Environmental
Protection pursuant to its Chapter 500 and 502 rules and ensure that
these management controls are properly maintained and pose no threat
to public safety.
A.
This article applies to all new development and redevelopment within
the Town that discharges stormwater to the Town's municipal separate
storm sewer system (MS4) and to associated stormwater management facilities.
B.
Exception. This article does not apply to new development or redevelopment
on a lot, tract or parcel where that lot, tract or parcel is part
of a subdivision that is approved under this article. Said lot, tract
or parcel shall not require separate review under this article but
shall comply with the post-construction stormwater management plan
requirements for that approved subdivision.
For the purposes of this article, the terms listed below are
defined as follows:
A person with requisite right, title or interest or an agent
for such person who has filed an application for new development or
redevelopment that requires a post-construction stormwater management
plan under this article.
Schedules of activities, prohibitions of practices, maintenance
procedures, and other management practices to prevent or reduce the
pollution of waters of the state. Best management practices also include
treatment requirements, operating procedures, and practices to control
plant site runoff, spillage or leaks, sludge or waste disposal, or
drainage from raw material storage.
The Federal Water Pollution Control Act (33 U.S.C. § 1251
et seq.), also known as the "Clean Water Act," and any subsequent
amendments thereto.
Construction activity including one acre or more of disturbed
area. "Construction activity" also includes activity with less than
one acre of total land disturbed area if that area is part of a subdivision
that will ultimately disturb an area equal to or greater than one
acre.
Any spilling, leaking, pumping, pouring, emptying, dumping,
disposing or other addition of pollutants to waters of the state.
"Direct discharge" or "point source" means any discernible, confined
and discrete conveyance, including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure, container, rolling
stock, concentrated animal feeding operation or vessel or other floating
craft from which pollutants are or may be discharged.
Clearing, grading and excavation. Mere cutting of trees,
without grubbing, stump removal, or disturbance or exposure of soil,
is not considered "disturbed area." "Disturbed area" does not include
routine maintenance but does include redevelopment. "Routine maintenance"
is maintenance performed to maintain the original line and grade,
hydraulic capacity, and original purpose of land or improvements thereon.
The Town Manager or his/her designee who is the person(s)
or department authorized by the Town to administer and enforce this
article.
The municipal official or body that has jurisdiction over
the land use approval or permit required for a new development or
redevelopment.
Conveyances for stormwater, including but not limited to
roads with drainage systems, municipal streets, catch basins, curbs,
gutters, ditches, human-made channels or storm drains (other than
publicly owned treatment works and combined sewers), owned or operated
by any municipality, sewer or sewage district, fire district, state
agency or federal agency or other public entity that discharge directly
to surface waters of the state.
A permit issued by the United States Environmental Protection
Agency (EPA) or by the Maine Department of Environmental Protection
(DEP) that authorizes the discharge of pollutants to waters of the
United States, whether the permit is applicable on an individual,
group, or general area-wide basis.
Any construction activity on unimproved premises, and for
purposes of this article includes redevelopment as defined below.
Any individual, firm, corporation, municipality, town, quasi-municipal
corporation, state agency or federal agency or other legal entity.
Dredged spoil, solid waste, junk, incinerator residue, sewage,
refuse, effluent, garbage, sewage sludge, munitions, chemicals, biological
or radiological materials, oil, petroleum products or by-products,
heat, wrecked or discarded equipment, rock, sand, dirt and industrial,
municipal, domestic, commercial or agricultural wastes of any kind.
Best management practices and associated inspection and maintenance
procedures for the stormwater management facilities employed by a
new development or redevelopment to meet the standards of this article
and approved by the municipal permitting authority.
Any building, lot, parcel of land, or portion of land, whether
improved or unimproved, including adjacent sidewalks and parking strips,
located within the Town from which discharges into the storm drainage
system are or may be created, initiated, originated or maintained.
A person who conducts post-construction inspections of stormwater
management facilities for compensation and who has received the appropriate
training for the same from DEP.
Construction activity on premises already improved with buildings,
structures or activities or uses, but does not include such activities
as exterior remodeling of structures.
Any small MS4 regulated by the State of Maine general permit
for the discharge of stormwater from small municipal separate storm
sewer systems ("general permit"), including all those located partially
or entirely within an urbanized area (UA) and those additional small
MS4s located outside a UA that as of the issuance of the general permit
have been designated by the DEP as regulated small MS4s.
Any MS4 that is not already covered by the Phase I MS4 Stormwater
Program, including municipally owned or operated storm sewer systems,
state or federally owned systems, such as colleges, universities,
or prisons, Maine Department of Transportation and Maine Turnpike
Authority road systems and facilities, and military bases and facilities.
The Town's municipal separate storm sewer system, including
the Town's regulated small MS4 and areas outside the Town's urbanized
area that drain into the regulated small MS4.
Any stormwater runoff, snowmelt runoff, and surface runoff
and drainage.
Any parking areas, catch basins, drainage swales, detention
basins and ponds, pipes and related structures that are part of the
post-construction stormwater management plan for a new development
or redevelopment.
The Town of Cumberland.
The areas of the State of Maine so defined by the latest
decennial census by the United States Bureau of the Census.
A.
Except as provided in § 242-21B above, no applicant for a building permit, subdivision approval, site plan approval or other zoning, planning or other land use approval for new development to which this article is applicable shall receive such permit or approval for that new development unless the municipal permitting authority for that new development also determines that the applicant's post-construction stormwater management plan for that new development meets the requirements of this article.
B.
At the time of application, the applicant shall notify the municipal
permitting authority if its post-construction stormwater management
plan includes any BMP(s) that will discharge to the Town's MS4 and
shall include in this notification a listing of which BMP(s) will
so discharge.
A.
The applicant shall make adequate provision for the management of
the quantity and quality of all stormwater generated by a new development
through a post-construction stormwater management plan. This post-construction
stormwater management plan shall be designed to meet the standards
contained in the Maine Department of Environmental Protection's Chapter
500 and 502 rules and shall comply with the practices described in
the manual "Stormwater Management for Maine," published by the Maine
Department of Environmental Protection, January 2006, which hereby
are incorporated by reference pursuant to 30-A M.R.S.A. § 3003.
B.
The applicant shall meet the quantity and quality standards above
either on site or off site. Where off-site facilities are used, the
applicant must submit to the Town documentation, approved as to legal
sufficiency by the Town's Attorney, that the applicant has a sufficient
property interest in the property where the off-site facilities are
located, by easement, covenant or other appropriate legal instrument,
to ensure that the facilities will be able to provide post-construction
stormwater management for the new development and that the property
will not be altered in a way that interferes with the off-site facilities.
C.
Where the applicant proposes to retain ownership of the stormwater
management facilities shown in its post-construction stormwater management
plan, the applicant shall submit to the Town documentation, approved
as to legal sufficiency by the Town's Attorney, that the applicant,
its successors, heirs and assigns shall have the legal obligation
and the resources available to operate, repair, maintain and replace
the stormwater management facilities. Applicants for new development
or redevelopment requiring stormwater management facilities that will
not be dedicated to the Town shall enter into a maintenance agreement
with the Town. A sample of this maintenance agreement is attached
as Appendix 1 to this article.[1]
[1]
Editor's Note: Appendix 1 is on file at the Town Clerk's office.
D.
Whenever elements of the stormwater management facilities are not
within the right-of-way of a public street and the facilities will
not be offered to the Town for acceptance as public facilities, the
municipal permitting authority may require that perpetual easements
not less than 30 feet in width, conforming substantially to the lines
of existing natural drainage and in a form acceptable to the Town's
Attorney, shall be provided to the Town allowing access for maintenance,
repair, replacement and improvement of the stormwater management facilities.
When an offer of dedication is required by the municipal permitting
authority, the applicant shall be responsible for the maintenance
of these stormwater management facilities under this article until
such time (if ever) as they are accepted by the Town.
E.
In addition to any other applicable requirements of this article
and the Town's Municipal Code, any new development which also requires
a stormwater management permit from the Maine Department of Environmental
Protection (DEP) under 38 M.R.S.A. § 420-D shall comply
with the rules adopted by DEP under 38 M.R.S.A. § 420-D,
Subsection 1, as the same may be amended from time to time, and the
applicant shall document such compliance to the municipal permitting
authority. Where the standards or other provisions of such stormwater
rules conflict with municipal ordinances, the stricter (more protective)
standard shall apply.
Any person owning, operating, leasing or having control over
stormwater management facilities required by a post-construction stormwater
management plan approved under this article shall demonstrate compliance
with that plan as follows:
A.
That person or a qualified post-construction stormwater inspector
hired by that person shall, at least annually, inspect the stormwater
management facilities, including but not limited to any parking areas,
catch basins, drainage swales, detention basins and ponds, pipes and
related structures, in accordance with all municipal and state inspection,
cleaning and maintenance requirements of the approved post-construction
stormwater management plan.
B.
If the stormwater management facilities require maintenance to function
as intended by the approved post-construction stormwater management
plan, that person shall take corrective action(s) and address the
deficiency or deficiencies within 60 days of identification.
[Amended 6-5-2023]
C.
That person shall employ a qualified post-construction stormwater
inspector to provide, on or by June 1 of each year, an inspection
report and a completed and signed certification to the enforcement
authority, in a form identical to that attached as Appendix 2 to this
article,[1] certifying that the stormwater management facilities have
been inspected and that they are adequately maintained and functioning
as intended by the approved post-construction stormwater management
plan, or that they require maintenance or repair, describing any required
maintenance and any deficiencies found during inspection of the stormwater
management facilities, and if the stormwater management facilities
require maintenance or repair of deficiencies in order to function
as intended by the approved post-construction stormwater management
plan, the person shall provide a record of the required maintenance
or deficiency and corrective action(s) taken. Maintenance and corrective
actions must be taken within 60 days of identification. If 60 days
is not possible, then the person shall propose an alternate expeditious
schedule, which if approved by the Code Enforcement Officer must be
met.
[Amended 3-28-2016; 6-5-2023]
[1]
Editor's Note: Appendix 2 is included as an attachment to this chapter.
In order to determine compliance with this article and with
the post-construction stormwater management plan, the enforcement
authority may enter upon property at reasonable hours with the consent
of the owner, occupant or agent to inspect the stormwater management
facilities.
Beginning July 1, 2009, and each year thereafter, the Town shall
include the following in its annual report to the Maine Department
of Environmental Protection:
A.
The cumulative number of sites that have stormwater management facilities
discharging into its MS4;
B.
A summary of the number of sites that have stormwater management
facilities discharging into its MS4 that were reported to the Town;
C.
The number of sites with documented functioning stormwater management
facilities; and
D.
The number of sites that required routine maintenance or remedial
action to ensure that stormwater management facilities are functioning
as intended.
It shall be unlawful for any person to violate any provision
of or to fail to comply with any of the requirements of this article
or of the post-construction stormwater management plan. Whenever the
enforcement authority believes that a person has violated this article
or the post-construction stormwater management plan, the enforcement
authority may enforce this article in accordance with 30-A M.R.S.A.
§ 4452.
A.
Whenever the enforcement authority believes that a person has violated
this article or the post-construction stormwater management plan,
the enforcement authority may order compliance with this article or
with the post-construction stormwater management plan by written notice
of violation to that person indicating the nature of the violation
and ordering the action necessary to correct it, including, without
limitation:
(1)
The abatement of violations and the cessation of practices or operations
in violation of this article or of the post-construction stormwater
management plan;
(2)
At the person's expense, compliance with BMPs required as a condition
of approval of the new development, the repair of stormwater management
facilities and/or the restoration of any affected property; and/or
(3)
The payment of fines, of the Town's remediation costs and of the
Town's reasonable administrative costs and attorney fees and costs.
B.
If abatement of a violation, compliance with BMPs, repair of stormwater
management facilities and/or restoration of affected property is required,
the notice shall set forth a deadline within which such abatement,
compliance, repair and/or restoration must be completed.
Any person who violates this article or the post-construction
stormwater management plan shall be subject to fines, penalties and
orders for injunctive relief and shall be responsible for the Town's
attorney fees and costs, all in accordance with 30-A M.R.S.A. § 4452.
Each day that such violation continues shall constitute a separate
violation. Moreover, any person who violates this article or the post-construction
stormwater management plan also shall be responsible for any and all
fines, penalties, damages and costs, including but not limited to
attorney fees and costs, incurred by the Town for violation of federal
and state environmental laws and regulations caused by or related
to that person's violation of this article or of the post-construction
stormwater management plan; this responsibility shall be in addition
to any penalties, fines or injunctive relief imposed under this article.
The enforcement authority may, with the approval of the municipal
officers, enter into a written consent agreement with the violator
to address timely abatement of the violation(s) of this article or
of the post-construction stormwater management plan for the purposes
of eliminating violations of this article or of the post-construction
stormwater management plan and of recovering fines, costs and fees
without court action.
A.
Any person receiving a notice of violation or suspension notice may appeal the determination of the enforcement authority to the Board of Adjustment and Appeals in accordance with the provisions of Chapter 315, Zoning, § 315-77D. The notice of appeal must be received within 30 days from the date of receipt of the notice of violation.
B.
The Board of Adjustment and Appeals shall hold a de novo hearing
on the appeal within 30 days from the date of receipt of the notice
of appeal. The Board of Adjustment and Appeals may affirm, reverse
or modify the decision of the enforcement authority. A party aggrieved
by the decision of the Board of Adjustment and Appeals may appeal
that decision to the Maine Superior Court within 45 days of the date
of the Board of Adjustment and Appeals decision pursuant to Rule 80B
of the Maine Rules of Civil Procedure.
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
to the Board of Adjustment and Appeals, within 45 days of a decision
of the Board of Adjustment and Appeals affirming or modifying the
enforcement authority's decision, then the enforcement authority may
recommend to the municipal officers that the Town's Attorney file
an enforcement action in a Maine court of competent jurisdiction under
Rule 80K of the Maine Rules of Civil Procedure.
The Town of Cumberland enacts this article pursuant to 30-A
M.R.S.A. § 3001 (municipal home rule ordinance authority),
38 M.R.S.A. § 413 (the Wastewater Discharge Law), 33 U.S.C.
§ 1251 et seq. (the Clean Water Act), and 40 CFR 122 [United
States Environmental Protection Agency's regulations governing the
National Pollutant Discharge Elimination System (NPDES)]. The Maine
Department of Environmental Protection, through its promulgation of
the general permit for the discharge of stormwater from small municipal
separate storm sewer systems, has listed the Town of Cumberland as
having a regulated small municipal separate storm sewer system ("small
MS4"); under this general permit, listing as a regulated small MS4
necessitates enactment of this article as part of the Town's stormwater
management program in order to satisfy the minimum control measures
required by Part IV D 5 (Post-construction stormwater management in
new development and redevelopment).
