[Adopted 10-24-2022]
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 project plans for erosion and sedimentation
control at construction sites.
B.
This article establishes performance standards for erosion and sedimentation
control at construction sites 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 objective of this article is to minimize the adverse effects
of erosion and sedimentation from constructions on the environment.
This article applies to any project for which an application
for subdivision or site plan approval is filed with the Town on or
after 7-1-2023, that.
A.
Results in disturbed area of one or more acres of land, or
B.
Results in disturbed area that is less than one acre of land if the
construction activity creating disturbed area is less than one acre
of land and is part of a larger common plan of development or sale
that as approved or amended would create disturbed area of one acre
or more, or
As used in this article, the following terms shall have the
meanings indicated:
Any undue deleterious effect due to erosion or sedimentation
from construction activity on waters of the state, protected natural
resources, the infrastructure of the regulated small MS4, or off-site.
Such undue deleterious effect is or may be potentially harmful or
injurious to human health, welfare, safety, or property to biological
productivity, diversity, or stability, or may unreasonably interfere
with the enjoyment of life or property, including outdoor recreation.
A "subdivision" as defined in Title 30-A M.R.S. §§ 4401 et seq. (the Maine Subdivision statute) and in Chapter 250, Subdivision of Land.
Any activity on a parcel that results in disturbed area.
Any spilling, leaking, pumping, pouring, emptying, dumping,
disposing, or other addition of pollutants to the waters of the state
located within the municipality's urbanized area and not including
groundwater.
All land areas of a parcel that are stripped, graded, grubbed,
filled, or excavated at any time during the site preparation or removing
vegetation for, or construction of, a project. Cutting of trees, without
grubbing, stump removal, disturbance, or exposure of soil is not considered
disturbed area. Disturbed area does not include routine maintenance
but does include redevelopment and new impervious areas. "Routine
maintenance" is maintenance performed to maintain the original line
and grade, hydraulic capacity, and original purpose of the facility.
Paving impervious gravel surfaces provided that an applicant or permittee
can prove the original line and grade and hydraulic capacity shall
be maintained and original purpose of the gravel surface remains the
same is considered routine maintenance. Replacement of a building
is not considered routine maintenance of the building and is therefore
considered disturbed area.
The Code Enforcement Officer, and their designee, are authorized
to enforce this article. The use of enforcement authority in this
article is synonymous with "enforcement authority or their designee."
Schedules of activities, prohibitions of practices, maintenance
procedures, and other methods, techniques, designs, and management
practices to prevent or reduce the pollution of waters of the state
and to control erosion (erosion control BMPs) and sedimentation (sedimentation
control BMPs). BMPs also include treatment requirements, operating
procedures, and practices to control site runoff, spillage or leaks,
sludge or waste disposal, or drainage from raw material storage.
The general permit for the discharge of stormwater from small
municipal separate storm sewer systems (MS4) approved October 15,
2020 and modified November 23, 2021 and any amendment or renewal thereof.
The total area of a parcel covered with a low-permeability
material that is highly resistant to infiltration by water, such as
asphalt, concrete, or rooftop, and areas such as gravel roads and
unpaved parking areas that will be compacted through design or use
to reduce their permeability. Common impervious areas include, but
are not limited to, rooftops, walkways, patios, driveways, parking
lots or storage areas, concrete or asphalt paving, gravel roads, packed
earthen materials, and macadam or other surfaces which similarly impede
the natural infiltration of stormwater. Pervious pavement, pervious
pavers, pervious concrete, and underdrained artificial turf fields
are all considered impervious.
A conveyance or system of conveyances designed or used for
collecting or conveying stormwater (other than a publicly owned treatment
works (POTW), as defined at 40 CFR 122.2, or a combined sewer), including,
but not limited to, roads with drainage systems, municipal streets,
catch basins, curbs, gutters, ditches, human-made channels or storm
drains owned or operated by any municipality, sewer or sewage district,
Maine Department of Transportation (MOOT), Maine Turnpike Authority
(MTA), state agency or federal agency or other public entity that
discharges to waters of the state other than groundwater.
The City/Town of Cumberland.
All contiguous land in the same ownership, except that lands
located on opposite sides of a public or private road are considered
each a separate tract or parcel of land unless the road was established
by the owner of land on both sides of the road after September 22,
1971.
An individual, firm, corporation, municipality, quasimunicipal
corporation, state agency, federal agency, or other legal entity which
creates, initiates, originates, or maintains a discharge authorized
or regulated by the general permit.
Coastal sand dunes, coastal wetlands, significant wildlife
habitat, fragile mountain areas, freshwater wetlands, community public
water system primary protection areas, great ponds, or rivers, streams
or brooks as defined in the Natural Resources Protection Act at 38
M.R.S. § 480-B.
A person who has been certified by Enviro-Cert International
in erosion and sedimentation control practices or has been certified
by completing the Maine Department of Environmental Protection Erosion
and Sedimentation Control Practices Workshop, or is a Maine Professional
Engineer with at least two years' experience in designing erosion
and sedimentation control BMPs.
Any small MS4 authorized by the most recent, in-force MS4
general permit or the general permits for the discharge of stormwater
from MDOT and MTA small MS4s or state or federally owned or operated
small MS4s including all those located partially or entirely within
an urbanized area.
The portion(s) of a parcel upon which construction activity
subject to this article is located.
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,
prisons, military bases and facilities, and transportation entities
such as MDOT and MTA road systems and facilities. See also 40 CFR
122.26(b)(16).
The area of the municipality so defined by the inclusive
sum of the 2,000 decennial census and the 2010 decennial census by
the U.S. Census Bureau.
Waters of the state as defined in 38 M.R.S. § 361-A(7).
A.
Erosion and sedimentation control plan required. No person shall
commence construction activity subject to the applicability section
of this article without first preparing and obtaining approval for
an erosion and sedimentation control plan in accordance with this
article.
B.
Submission.
(1)
When construction activity is subject to review by the Planning Board
site plan, the applicant will submit an erosion and sedimentation
control plan meeting the requirements of this article in accordance
with the following:
(2)
When a concurrent review by Planning Board is not otherwise required,
an erosion and sedimentation control plan shall be submitted to the
enforcement authority.
C.
Review. The enforcement authority or Planning Board, as appropriate,
will review the erosion and sedimentation control plan for compliance
with the standards of this article and may provide comments where
standards have not been met. Once an applicant has submitted an erosion
and sedimentation control plan that the enforcement authority or Planning
Board finds is in compliance with the standards of this article, the
enforcement authority or Planning Board shall provide written confirmation
to the applicant. The enforcement authority or Planning Board may
approve the erosion and sedimentation control plan, approve it with
conditions, or deny the erosion and sedimentation control plan, and
that decision shall be in writing and supported by findings of fact
and conclusions of law. Appeals from decisions of the enforcement
authority regarding the erosion and sedimentation control plan may
be taken within 30 days of the date of decision to the Board of Appeals
as provided under the municipality's Zoning Article; appeals from
decisions of the Planning Board regarding the erosion and sedimentation
control plan may be taken within 30 days of the date of decision in
the same manner as appeals are taken under the municipality's subdivision
or site plan article, as appropriate.
D.
Preconstruction conference.
(1)
In addition to the preconstruction conferences required for subdivisions under Chapter 250, projects subject to this article that are not subdivisions are required to request and attend a preconstruction conference unless waived by the Town Manager.
(2)
At least 10 days prior to commencing construction activity, the applicant
shall request a preconstruction conference with the enforcement authority.
At a minimum, attendance at the meeting is required by the enforcement
authority, the developer, his/her site contractor (for earthwork and
project oversight), engineer, general contractor, Town Planner, Municipal
Engineer and any other such department heads deemed appropriate by
the enforcement authority. Meeting minutes must be prepared by the
municipality's representative and distributed to all attendees.
E.
Compliance with requirements. The applicant shall implement and comply
with the erosion and sedimentation control plan as approved throughout
all phases of construction activity.
B.
Erosion and sedimentation control plan content.
(1)
The erosion and sedimentation control plan shall be prepared in accordance
with the performance standards contained in Appendix 1.
(2)
The erosion and sedimentation control plan shall consist of a graphic
representation of the site at a scale no smaller than one inch equals
100 feet showing:
(a)
Parcel boundaries,
(b)
Locations of protected natural resources,
(c)
Locations of all potential sources of authorized and unauthorized
nonstormwater discharges,
(d)
Locations of all erosion and sedimentation control BMPs to be
used,
(e)
Topography for site pre-and post-construction conditions as
two-foot elevation contours,
(f)
Details for all erosion and sedimentation control BMPs to be
used,
(g)
Details and timing associated with phasing of construction activity
in disturbed areas at the site, and phasing of installation and stabilization
of erosion and sedimentation control BMPs (if applicable),
(h)
Erosion and sedimentation control BMPs notes with construction
standards,
(i)
A narrative description of the timing, inspections, and erosion
and sedimentation control BMPs to be used,
(j)
Example inspection form,
(k)
Dewatering plan if necessary, and
(l)
Locations of areas not to be disturbed by construction activity,
including trees, vegetation, and areas intended for infiltration.
(3)
The erosion and sedimentation control plan shall also include documentation
of any variances or releases provided by the Maine Department of Environmental
Protection from Chapter 500 performance standards.
The Planning Board or enforcement authority as appropriate,
shall determine if the following standards are met in accordance with
Appendix 1.
A.
Qualified professional. The erosion and sedimentation control plan
has been prepared by a qualified professional.
B.
Timing of installation and maintenance. The erosion and sedimentation
control plan requires that sedimentation control BMPs shall be in
place before construction begins, additional erosion and sedimentation
control BMPs shall be installed as needed and shall be phased in if
phasing is used, and shall be maintained until permanent stabilization
is achieved.
C.
Inspection. The erosion and sedimentation control plan provides for
inspection of the site by the applicant to confirm that erosion and
sedimentation control BMPs are in place and functioning. The erosion
and sedimentation control plan also provides for corrective action
if erosion is occurring or there is a discharge of sediment or turbid
water from the construction site.
D.
Spill prevention. The erosion and sedimentation control plan includes
measures that prevent construction site pollution and spills from
entering stormwater.
E.
Groundwater protection. The erosion and sedimentation control plan
restricts the storage or handling of liquid petroleum products and
other hazardous materials that may drain to an "infiltration area."
F.
Fugitive sediment and dust. The erosion and sedimentation control
plan includes provisions to prevent erosion of soils, tracking or
migration of soils into the right of way, discharge of sediment from
the site, and fugitive dust emissions during or after construction.
G.
Debris. The erosion and sedimentation control plan includes provisions
to minimize the exposure of construction materials and waste to stormwater
runoff and prevent them from migrating off-site.
H.
Excavation dewatering. The erosion and sedimentation control plan
must include provisions to remove or properly disperse the collected
water in a manner that prevents sediment from entering stormwater.
I.
Nonstormwater discharges. The erosion and sedimentation control plan
minimizes nonstormwater discharges and, if nonstormwater discharges
are allowed, they are identified in the erosion and sedimentation
control plan with appropriate pollution measures for discharge.
A.
The enforcement authority will inspect the site as follows at a minimum:
(1)
Once before any disturbance begins and after all erosion and sedimentation
control BMPs specified in the erosion and sedimentation control plan
are in place.
(2)
Three times during the active earth moving phase of construction.
(3)
Once at project completion to ensure the site has reached permanent
stabilization and all temporary erosion and sedimentation controls
have been removed.
B.
Additional inspection requirements to be completed by the applicant
during construction are contained in Appendix 1.
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.
Whenever the enforcement authority believes that a person has violated
this article, the enforcement authority may enforce this article in
accordance with 30-A M.R.S. § 4452 and this section.
A.
Right of entry.
(1)
In order to determine compliance with this article, the enforcement
authority may enter upon the parcel at reasonable hours with the consent
of the owner, occupant, agent, or contractor to inspect the parcel
for compliance with this article.
B.
Notice of violation.
(1)
Whenever the enforcement authority finds that a person has violated
this article, the enforcement authority may order compliance with
this article by written notice of violation to that person indicating
the nature of the violation(s), a statement of the article provision(s)
alleged to have been violated, including a statement of the penalties
for violation, and ordering the action necessary to correct it, including,
without limitation:
(a)
The abatement of violations and the cessation of practices or
operations in violation of this article;
(b)
At the person's expense, compliance with or repair of the erosion
and sedimentation control BMPs required as a condition of approval
of the erosion and sedimentation control plan, and/or the restoration
of any affected portion(s) of the parcel;
(c)
The payment of fines, of the municipality's remediation costs
and of the municipality's reasonable administrative costs and attorneys'
fees and costs;
(d)
If abatement of a violation, compliance with the erosion and
sedimentation control plan, repair of erosion and sedimentation control
BMPs, and/or restoration of affected portions of the parcel is required,
the notice shall set forth a deadline within which such abatement,
compliance, repair, and/or restoration must be completed.
C.
Stop work notice.
(1)
The enforcement authority may issue a stop work notice whenever:
(a)
A person has not acted on a notice of violation issued pursuant
to this article within the time set forth in the notice, or
(b)
A person subject to the applicability section of this article
undertakes construction activity without first submitting an application
for and obtaining approval of an erosion and sedimentation control
plan.
(2)
The enforcement authority will attempt to deliver the stop work notice
to the applicant, the person performing the construction activity,
or the owner or occupant of the parcel, as appropriate, by any means
reasonable calculated to effectuate delivery.
(3)
Once the stop work notice has been delivered, no further construction
activity at the site may proceed other than as is necessary to correct
the noncompliance. Construction activity may resume only when the
enforcement authority provides written notice that the person may
resume that construction activity.
D.
Penalties/fines/injunctive relief.
(1)
Any person who violates this article, including, but not limited
to the erosion and sedimentation control plan, shall be subject to
fines, penalties, and orders for injunctive relief and shall be responsible
for the municipality's attorney's fees and costs, all in accordance
with 30-A M.R.S. § 4452. Each day that such violation continues
shall constitute a separate violation. Moreover, any person who violates
this article also shall be responsible for any and all fines, penalties,
damages, and costs, including, but not limited to attorneys' fees
and costs, incurred by the municipality for enforcement of violation(s)
of federal and state environmental laws and regulations caused by
or related to that person's violation of this article; this responsibility
shall be in addition to any penalties, fines, or injunctive relief
imposed under this section.
E.
Consent agreement.
(1)
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 for
the purposes of eliminating violations of this article and of recovering
fines, costs, and fees without court action.
F.
Appeal of notice of violation.
(1)
Any person receiving a notice of violation or stop work notice may
appeal the determination of the enforcement authority to the Zoning
Board of Appeals. The notice of appeal must be received within 30
days from the date of receipt of the notice of violation. The Board
of Appeals shall hold a de nova hearing on the appeal within 30 days
from the date of receipt of the notice of appeal. A party aggrieved
by the decision of the Board of Appeals may appeal that decision to
the Maine Superior Court within 45 days of that date of the Board
of Appeals decision pursuant to Rule 808 of the Maine Rules of Civil
Procedure.
G.
Enforcement measures.
(1)
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 Appeals, within 45 days of a decision of the Board
of Appeals affirming or modifying the enforcement authority's decision,
then the enforcement authority may recommend to the municipal officers
that the municipality's attorney file an enforcement action in a Maine
court of competent jurisdiction under Rule 80K of the Maine Rules
of Civil Procedure.
A.
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, clauses, sentences, or paragraphs or application of this
article.
B.
Whenever a provision of this article conflicts with or is inconsistent
with another provision of this article or of any other article, regulation
or statute administered by the municipality, the more restrictive
provision shall control.
Where the Planning Board or enforcement authority finds that
there are special circumstances of a particular erosion and sedimentation
control plan that make a particular submission requirement or standard
inapplicable, a waiver may be granted, provided that such waiver will
not have the effect of nullifying the intent and purpose of this article.
The applicant shall submit, in writing, the reason for the requested
waiver. In granting waivers or modifications, the Planning Board or
enforcement authority may require such conditions that will substantially
secure the objectives of the standards so waived or modified.
The municipality enacts this erosion and sedimentation control
Article pursuant to 30-A M.R.S. §§ 3001 et seq. (municipal
home rule article authority), 38 M.R.S. § 413 (the Wastewater
Discharge Law), 33 USC §§ 1251 et seq. (the Clean Water
Act), and 40 CFR Part 122 [US Environmental Protection Agency's regulations
governing the National Pollution 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 municipality as having
a regulated small MS4; under this general permit, listing as a regulated
small MS4 necessitates enactment of elements of this article as part
of the municipality's stormwater management program in order to satisfy
the minimum control measures for construction site stormwater runoff
control.
[1]
Editor's Note: Former Art. IV, Low Impact Development, adopted 10-24-2022, which immediately
followed, was repealed 12-11-2023.
