CHAPTER 34. STORMWATER CONTROL
ARTICLE I.   GENERAL PROVISIONS
   34.001   Title
   34.002   Authority and other laws
   34.003   Purpose
   34.004   General approach to development
   34.005   Definitions
   34.006   Transitional provisions
   34.007   Rules of construction and interpretation
   34.008   Authority and right of entry
   34.009   Liability disclaimer
ARTICLE II.   ILLICIT DISCHARGE CONTROL
   34.100   Purpose
   34.101   Prohibition of discharges
   34.102   Permitted discharges
   34.103   Suspension of MS4 access
   34.104   Industrial or construction activity discharges
   34.105   Other discharges
   34.106   Storm discharge permit
   34.107   Rules and regulations
   34.108   Requirement to prevent, control, and reduce stormwater pollutants by the use of best management practices
   34.109   Watercourse protection
   34.110   Inspection and monitoring
ARTICLE III.   EROSION PREVENTION AND SEDIMENT CONTROL
   34.200   Purpose
   34.201   Land disturbance permit
   34.202   Exemptions
   34.203   Land disturbance activity
   34.204   Fiscal surety
   34.205   EPSC requirements
   34.206   Plan requirements
ARTICLE IV.   POST-CONSTRUCTION STORMWATER MANAGEMENT
   34.300   Purpose
   34.301   General requirements
   34.302   Application
   34.303   Review and issuance of permit
   34.304   Maintenance agreements
ARTICLE V.   ENFORCEMENT
   34.400   Enforcement
   34.401   Enforcement actions
   34.402   Appeals
   34.403   Penalties
   34.404   Injunctive relief
   34.405   Remedial action
   34.406   Emergency abatement
   34.407   Acts potentially resulting in a violation of the Federal Clean Water Act
ARTICLE I. GENERAL PROVISIONS
§ 34.001   TITLE
   This chapter shall be known and may be officially cited as the "City of Berea Stormwater Control Ordinance". It is referred to herein as "this chapter".
(Ord. No. 24-14, § 1, 12-16-14)
§ 34.002   AUTHORITY AND OTHER LAWS
   (A)   This chapter is adopted by the Berea City Council, under authority of KRS Chapter 100, and KRS 82.082, and shall be administered by the Berea Planning Commission, Codes and Planning Department, GIS Department, Street Department, and any other City Department deemed appropriate. These departments, acting as the "Approving Agency", "Issuing Authority" and "Enforcement Agency" shall be identified as the "City of Berea" in the ordinance.
   (B)   This chapter shall be construed to ensure consistency with requirements of the Clean Water Act, the KPDES and acts amendatory thereof or any other applicable regulations.
   (C)   The provisions of this chapter are minimum requirements. Whenever the provisions of this chapter are at variance with the requirements of the Berea Land Management and Development Ordinance or other city, state and federal lawfully adopted rules, regulations, ordinances or resolutions, the most restrictive, or that imposing the higher standard, shall govern.
   (D)   This chapter does not intend to imply that compliance by any person, company, developer, or any other entity will ensure that there will be no contamination, pollution, or discharge of pollutants into the MS4, community water or waters of the Commonwealth.
   (E)   It shall be the permittee's responsibility to determine and comply with all other applicable city, county, state, or federal ordinances or regulations governing land development and land disturbing activities, some of which may be conditions of approval under this chapter (e.g., KPDES general permit).
   (F)   The remedies listed in this chapter are not exclusive of any other remedies available under any applicable federal, state or local law and it is within the discretion of the City of Berea to seek cumulative remedies.
(Ord. No. 24-14, § 1, 12-16-14)
§ 34.003   PURPOSE
   The requirements set forth in this chapter are intended to protect the general health, safety and welfare of the citizens of the City of Berea, and more specifically:
   (A)   Conserve, preserve, and enhance the natural resources of the City of Berea, Kentucky, including its soils, waters, vegetation, fish and wildlife.
   (B)   To protect and enhance the water quality of watercourses and water bodies in a manner pursuant to and consistent with the Federal Clean Water Act by addressing stormwater runoff from new development projects and existing developments that discharge into the municipal separate storm sewer system (MS4), community waters and waters of the Commonwealth.
   (C)   To comply with all applicable state and federal requirements for clean water, including limitations on the discharge of pollutants as set forth by the Kentucky Pollutant Discharge Elimination System (KPDES); and all applicable provisions of the Federal National Pollution Discharge elimination System's stormwater general permit for Phase II communities.
   (D)   To carry out the requirements for implementation of regulations with respect to the Phase II Stormwater Program, specifically MCM 3: Illicit Discharge Detection and Elimination; MCM 4: Construction Site Runoff Control; and MCM 5: Post-Construction Runoff Control.
   (E)   To establish legal enforcement authority to carry out all inspection, surveillance and monitoring, and enforcement procedures necessary to ensure compliance with this section.
(Ord. No. 24-14, § 1, 12-16-14)
§ 34.004   GENERAL APPROACH TO DEVELOPMENT
   The City of Berea promotes an approach to management of stormwater quality and quantity issues that considers the following parameters:
   (A)   Develops comprehensive master plans that address stormwater quantity, quality, design, operation and maintenance, and funding priorities.
   (B)   Encourages the use of natural and aesthetically pleasing designs that maximize the preservation of natural areas.
   (C)   Encourages the preservation of floodplains, floodways and open spaces to protect and benefit the community's quality of life and natural resources.
   (D)   Encourages the planning for and use of regional BMPs
   (E)   Encourages the use of Low-Impact Development design principles.
   (F)   Implements waterway buffers.
   (G)   Encourages use of low-maintenance on-site BMPs.
   (H)   Encourages a series of multiple BMP treatment systems.
(Ord. No. 24-14, § 1, 12-16-14)
§ 34.005   DEFINITIONS
   For the purpose of this chapter, the following terms, phrases, words, and their derivatives shall have the meaning stated below:
   "APPLICANT." The landowner or developer who submits an application to the Berea Planning Commission for a Land Disturbance permit pursuant to this section.
   "AS-BUILTS." Construction drawings or plans that have been updated to show actual constructed locations of roadways, storm and sanitary sewers, culverts, catch basins, manholes, headwalls, swales and other infrastructure improvements. As-built information may include but not be limited to pipe size and material, horizontal and vertical locations of pipelines, rim and invert elevations of manhole and catch basin structures, angles and offsets, and roadway and pipe slopes.
   "BEDROCK." In place solid rock.
   "BENCH." A relatively level step excavated into earth material for either subsequent placement of fill or as a means to provide steep slope control or conveyance capacity.
   "BEST MANAGEMENT PRACTICES (BMP)." A technique or series of techniques, structural or nonstructural, which are proven to be effective in reducing pollutants in stormwater, controlling runoff, erosion and sedimentation and flood mitigation.
   "BORROW." Earth material acquired from an off-site location for use in grading on a site.
   "CITY." The City of Berea, Kentucky.
   "CLEARING AND GRUBBING." The cutting and removal of trees, shrubs, bushes, windfalls and other vegetation including removal of stumps, roots, and other remains in the designated areas.
   "CODES AND PLANNING ADMINISTRATOR." The Codes and Planning Administrator and/or their authorized designee(s).
   "COMMUNITY WATERS." Any and all rivers, streams, creeks, branches, lakes, reservoirs, ponds, drainage systems, springs, wetland, wells and other bodies of surface or subsurface water, natural or artificial, lying within or forming a part of the boundaries of the City of Berea.
   "CONTRACTOR." A person who contracts with a permittee, landowner, developer, or another contractor (i.e. subcontractor) to undertake any or all the land disturbance activities covered by this section.
   "CO-PERMITTEE." Any person, other than the permittee, including but not limited to a developer or contractor who has or represents financial or operational control over the land disturbing activity.
   "DETENTION FACILITY." A temporary or permanent natural or man-made structure that provides for the temporary storage of stormwater runoff which is designed so as not to create a permanent pool of water.
   "DEVELOPER." Any person, firm, corporation, sole proprietorship, partnership, state agency, or political subdivision thereof engaged in a land disturbance activity and/or in the development or redevelopment of property.
   "DRAINAGE AREA." That area-contributing runoff to a single point measured in a horizontal plane, which is enclosed by a ridgeline.
   "ENFORCEMENT AGENCY." The City of Berea Codes and Planning Department its their duly authorized designees designated to implement and enforce this chapter.
   "ENGINEER." A professional engineer licensed in the Commonwealth of Kentucky to practice in the field of civil works.
   "EPSC (EROSION PREVENTION AND SEDIMENT CONTROL)." The prevention of soil erosion and control of solid material during land disturbing activity to prevent its transport out of the disturbed area by means of air, water, gravity, or ice.
   "EROSION." The process by which soil and rock are removed from the Earth's surface by exogenic processes such as wind or water flow, and then transported and deposited in other locations.
   "EROSION CONTROL INSPECTOR." A person designated by the Issuing Authority who has successfully completed a City of Berea-sponsored or approved training course in EPSC.
   "EXISTING GRADE." The contour of the existing ground prior to grading operations.
   "EXTENDED DETENTION." A stormwater design feature that provides gradual release of a volume of water in order to increase settling of pollutants and protect downstream channels from frequent storm events.
   "FEMA." Federal Emergency Management Agency.
   "FINAL STABILIZATION." Final stabilization shall mean that: (1) all soil disturbing activities at the site have been completed; (2) there are no areas of active erosion evident; and (3) a uniform perennial vegetative cover with a density of eighty five percent (85%) of the cover for the area has been established or equivalent measures, i.e. mulches orgeotextile fabrics, have been employed.
   "FINISH GRADE." The final grade of the site, which conforms to the approved plan.
   "FLOODPLAIN." The one hundred (100) year floodplain which is that area adjoining a watercourse which could be inundated by a flood that has a one percent (1%) chance of being equaled or exceeded in any given year and is delineated on the Federal Emergency Management Agency Flood Insurance Rate Maps (FIRM).
   "FLOW ATTENUATION." Prolonging the flow time of runoff to reduce the peak discharge.
   "GENERAL PERMIT." A KPDES stormwater general permit for stormwater discharges related to construction activities that disturb one (1) acre or more. Coverage under this general stormwater permit is obtained by filing a notice of intent (NOI) with the Kentucky Division of Water.
   "GRADE." The vertical location of the ground surface.
   "GRADING." Any stripping, cutting, filling or stockpiling of earth or land, including the land in its cut or filled condition, to create new grades.
   "HAZARDOUS MATERIALS." Any material, including any substance, waste, or combination thereof, which because of its quantity, concentration, or physical, chemical, biological 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.
   "HIGH QUALITY WATERS." Means those "waters of the Commonwealth" that have been categorized by the Kentucky Division of Water as high quality pursuant to the requirements of 401 KAR 10:030, Section 1(3).
   "ILLICIT CONNECTION." Any drain or conveyance, whether on the surface or subsurface, which allows an illicit discharge to enter the MS4. Included are conveyances which allow any non-stormwater discharge including sewage, process wastewater, and wash water to enter the storm drain system and any connections to the storm drain system from indoor drains and sinks, regardless of whether said drain or connection had previously been allowed, permitted, or approved.
   "ILLICIT DISCHARGE." Any direct or indirect non-stormwater substance, including silt or sediment, or hazardous material disposed, deposited, spilled, poured, injected, seeped, dumped, leaked or placed by any means, intentionally or unintentionally into the MS4 community waters, waters of the Commonwealth, or any area draining directly or indirectly into the MS4, except as exempted in this chapter.
   "INDUSTRIAL ACTIVITIES." Activities subject to KPDES Industrial Permits as defined in 40 CFR, § 122.26(b)(14).
   "INFILTRATION." The passage or movement of water into the soil surface.
   "ISSUING AUTHORITY." The City of Berea Planning and its duly authorized designees to implement and enforce the Illicit Discharge Detection and Elimination (IDDE) Program, Erosion Prevention Sediment Control and Post-Construction Stormwater Management sections of this chapter.
   "KDOW." The Kentucky Division of Water.
   "KENTUCKY POLLUTION DISCHARGE ELIMINATION SYSTEM (KPDES) STORMWATER DISCHARGE PERMIT." A permit that is issued by the Kentucky Division of Water (KDOW) under designated authority by the United States Environmental Protection Agency (USEPA) whether the permit is applicable on an individual, group or general area-wide basis.
   "LAND DISTURBANCE ACTIVITY." Any land change that may result in soil erosion from wind, water and/or ice, or from vegetative or non-vegetative disturbance, and the movement of sediments into or upon waters, lands, or rights-of-way within the City of Berea. Land disturbing activities include, but not limited to, development, redevelopment, building demolition, clearing and grubbing, grading, excavating, borrow pits, and transporting and filling of land. Land Disturbance Activity does not include normal agricultural practices such as tilling the earth.
   "LAND DISTURBANCE PERMIT." A permit allowing or authorizing the initiation of grading, excavation, or related earthwork according to policies, procedures, ordinances or adopted codes in conformity to the approved plan(s).
   "MS4, MUNICIPAL SEPARATE STORM SEWER SYSTEM OF THE CITY OF BEREA." A conveyance, or system of conveyances (including roads with drainage systems, municipal, catch basins, curbs, gutters, ditches, man-made channels, and storm drains) designed or used for collecting or conveying stormwater. Sanitary and combined sewers are not included in the definition of the municipal separate storm sewer system.
   "NOI." Notice of Intent.
   "NON-STORMWATER DISCHARGE." Any discharge to the MS4, community waters or waters of the Commonwealth that is not composed solely of stormwater except as permitted by this chapter.
   "NOT." Notice of Termination.
   "OUTFALL." The point of discharge from an MS4 to Waters of the United States.
   "PERIMETER CONTROL PLAN." A plan that describes required erosion control practices that must be in place before general site construction begins. It is a part of the Stormwater Pollution Prevention Plan (SWPPP) and the Erosion Protection and Sediment Control (EPSC) plan and is required to obtain a Land Disturbance Permit.
   "PERMITTEE." The applicant in whose name a valid Land Disturbance Permit is duly issued pursuant to this chapter and his or her agents, employees, and others, acting under his or her direction.
   "PLANNING AND ZONING COMMISSION." The Berea Planning and Zoning Commission.
   "POLLUTANT." Anything which causes or contributes to pollution. Pollutants may include, but are not limited to: paints, varnishes, and solvents; oil and other automotive fluids; silt and sediments; floatables, pesticides, herbicides, and fertilizers; hazardous substances; sewage, animal wastes, fecal Coliform and pathogens; dissolved and particulate metals; non-hazardous liquids; and yard wastes, refuse, construction debris, rubbish, garbage, litter, or other discarded or abandoned objects and accumulations.
   "POST-CONSTRUCTION STORMWATER POLLUTION PREVENTION PLAN (P-SWPPP)." A detailed plan for controlling permanent post-construction water quality controls that are part of the stormwater plan for a development.
   "PREMISES." The area of land, site, grounds, property on which the illicit discharge emanates.
   "REDEVELOPMENT." Any construction, alteration, or improvement involving land disturbance performed on sites where existing land use is commercial, industrial, institutional, or multifamily residential.
   "RETENTION FACILITY." A temporary or permanent natural or manmade structure that provides for the storage of storm water runoff by means of a permanent pool of water.
   "RETROFITTING." The construction of a structural BMP in a previously developed area or preexisting structure, to improve water quality and reduce flow rate and/or volume.
   "ROUGH GRADE." The stage at which the grade approximately conforms to the approved plan.
   "RUNOFF." Rainfall, snowmelt, or irrigation water flowing over the ground surface.
   "SEDIMENT." Soils or other surficial materials transported or deposited by the action of wind, water, ice, or gravity as a product of erosion.
   "SEDIMENTATION." The process or action of depositing sediment that is determined to have been caused by erosion.
   "SITE." The entire area of land on which the land disturbance activity is proposed in the Land Disturbance Permit application.
   "SITE PLAN." A plan or set of plans showing the details of any land disturbance activity of a site including but not limited to the construction of structures, open and enclosed drainage facilities, stormwater management facilities, parking lots, driveways, curbs, pavements, sidewalks, bike paths, recreational facilities, ground covers, plantings, and landscaping.
   "SITE WASTE." Waste from the construction site such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary wastes.
   "SLOPE." The incline of a ground surface expressed as a ratio of horizontal distance to vertical distance.
   "SOIL." The loose top layer of the Earth's surface, consisting of rock and mineral particles mixed with decayed organic matter (humus) overlying bedrock.
   "STORMWATER MANUAL". A compilation of rules, design criteria, guidelines and standards adopted by the City of Berea for the purpose of managing stormwater development activities, including water quality and quantity for all development activities in the city.
      (1)   Quantitative control, a system of vegetative and structural measures that control the increased volume and rate of surface runoff caused by man-made changes to the land; and
      (2)   Qualitative control, a system of vegetative, structural and other measures that reduce or eliminate pollutants that might otherwise be carried by surface runoff.
   "STORMWATER POLLUTION PREVENTION PLAN (SWPPP)." A detailed plan which includes a set of best management practices or equivalent measures designed to control surface runoff and erosion and to retain sediment on a specific development site or parcel of land during the period in which pre-construction and construction related land disturbances, fills, and soil storage occur, and before final improvements are completed, all in accordance with this chapter.
   "STRIPPING." Any activity which removes or significantly disturbs the vegetative surface cover including clearing, grubbing of stumps and root mat, and topsoil removal.
   "TOPSOIL." The upper layer of soil.
   "UTILITY." The owner/operator of any underground facility including an underground line, facility, system and its appurtenances used to produce, store, convey, transmit, or distribute communications, data, electricity, power, heat, gas, oil, petroleum products, potable water, stormwater, steam, sewage and other similar substances.
   "WATERCOURSE." A channel which gathers or carries surface water.
   "WATERSHED." A region draining to a specific river, river system, or body of water. See also DRAINAGE AREA.
   "WATERS OF THE COMMONWEALTH." Includes any and all rivers, streams, creeks, lakes, ponds, impounding reservoirs, springs, wells, marshes, and all other bodies of surface or underground water, natural or artificial, situated whole or partly within or bordering upon the Commonwealth or its jurisdiction.
   "WATERS OF THE UNITED STATES." Includes any and all waters as defined in 40 CFR § 122.2.
   "WETLANDS." A lowland area such as a marsh, which is saturated with moisture, as defined in § 404, Federal Water Pollution Control Act Amendments of 1987.
(Ord. No. 24-14, § 1, 12-16-14)
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