Item 4DCity of Southlake, Texas
M E M O R A N D U M
September 16, 2008
To: Shana Yelverton, City Manager
From: Robert H. Price, P.E., Public Works Director
Subject:Ordinance No. 946, 1st Reading,
an ordinance adding chapter 9.5, article VIII to
the code of ordinances; providing for the regulation of erosion and sediment
control at construction sites within the city of Southlake and establishing an
effective date.
Action
Requested:
Ordinance No. 946, 1st Reading,
an ordinance adding chapter 9.5, article VIII to the
code of ordinances; providing for the regulation of erosion and sediment control at
construction sites within the city of Southlake and establishing an effective date.
Background
Information:
The Phase II storm water regulation, TXR040000, requires the City to develop,
implement, and enforce a program to reduce pollutants in any storm water
runoff from construction activities. The program must include the development
and implementation of an ordinance or other regulatory mechanism to require
erosion and sediment controls, as well as sanctions to ensure compliance.
Financial
Considerations:
Costs to the City will include the following:
Inspection efforts to enforce the Erosion and Sediment Control
Ordinance. No additional staff has been added as a result of the
implementation of this ordinance at this time. The additional work
required as part of the implementation of this ordinance will be woven
into the day to day activities of existing staff.
Subscription to a specialized website to maintain documentation required
as part of the Phase II storm water regulation.
Citizen Input/
Board Review:
Members of the Development and the Building (Commercial and Residential)
Community have been involved in the development of this Ordinance.
Legal
Review:
The ordinance has been reviewed by the City Attorney’s office.
Alternatives:
The City Council may approve or deny the ordinance.
Supporting
Documents:
Ordinance 946
Staff
Recommendation:
Adopt Ordinance No. 946
Staff
Contact:
Robert H. Price, P.E., Public Works Director
Gordon J. Mayer, Jr., P.E., City Engineer
Christi Upton, Environmental Coordinator
ORDINANCE NO. 946
AN ORDINANCE ADDING, ARTICLE VIII “EROSION AND
SEDIMENT CONTROL TO CHAPTER 9.5 “ENVIRONMENT” OF
THE CITY OF SOUTHLAKE CODE OF ORDINANCES TO
PROVIDE FOR THE REGULATION OF EROSION PREVENTION
AND SEDIMENT CONTROL AT CONSTRUCTION SITES
WITHIN THE CITY OF SOUTHLAKE; PROVIDING THAT THIS
ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES;
PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR A
PENALTY FOR VIOLATIONS HEREOF; PROVIDING A
SAVINGS CLAUSE; PROVIDING FOR PUBLICATION IN
PAMPHLET FORM; PROVIDING FOR PUBLICATION IN THE
MANNER AUTHORIZED BY LAW; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City of Southlake, Texas (“the City”) is a home rule city acting under its
power adopted by the electorate pursuant to Article XI, Section 5 of the Texas
Constitution and Chapter 9 of the Local Government Code; and
WHEREAS, the Texas Commission on Environmental Quality (TCEQ) Rules and
Regulations for Municipal Separate Storm Sewer Systems (MS4) state that a municipality
must implement Construction Site storm water runoff controls; and
WHEREAS, the TCEQ Rules and Regulations for MS4s require a program be developed
that will reduce Pollutants in any storm water runoff to the small MS4 from construction
activities that result in a land disturbance of greater than or equal to one acre or if that
construction activity is part of a Common Plan of Development that would disturb one
acre or more of land; and
WHEREAS, during the construction process, soil is highly vulnerable to erosion by wind
and water and eroded soil endangers water resources by reducing water quality and
causing the siltation of aquatic habitats for fish and other desirable species; and
WHEREAS, siltation in waterways can increase the probability of flooding and
necessitates repair of sewers and ditches and the dredging of ponds and lakes; and
WHEREAS, the City Council deems that it is necessary to adopt regulations in order to
safeguardPersons, protect property, prevent damage to the environment in the City of
Southlake and promote the public welfare by guiding, regulating, and controlling the
design, construction, use, and maintenance of any development or other activity that
disturbs or breaks the topsoil or results in the movement of earth on land in the City of
Southlake.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF SOUTHLAKE, TEXAS:
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SECTION 1
That the Code of Ordinance of the City of Southlake is hereby amended by adding
Article VII “Erosion and Sediment Control” to Chapter 9.5 Environment to read as
follows:
“EROSION AND SEDIMENT CONTROL”
Sec. 9.5-400 Responsibility.
It shall be the joint duty and responsibility of the Directors
of Public Works and Planning and Development Services or their authorized
representatives to administer, implement and enforce the provisions of this ordinance.
Sec. 9.5-401 Applicability.
Only erosion and sedimentation from a Construction Site
which impacts public property and public rights-of-way are governed by this ordinance.
It is not a violation of this ordinance if erosion and sediment loss from a Construction
Site occurs upon private property and is deposited upon private property.
Sec. 9.5-402 Definitions and Abbreviations.
Unless a provision explicitly states
otherwise, the following terms and phrases, as used in this Article, shall have the
meanings hereinafter designated. Any terms not defined by this ordinance are understood
to be defined by the Texas Construction General Permit TXR150000 or its successor.
Best Management Practice (BMP)or Control Measure means the schedule of
activity, prohibition, maintenance procedures, structural controls, and other
management practices meant to prevent or reduce the discharge of Pollutants.
BMPs or control measures also include treatment requirements, operating
procedures, and practices to control Construction Site runoff, spills or leaks, waste
disposal, or drainage from raw material storage areas.
City of Southlake Erosion and Sediment Control Manual means a document prepared
by the City of Southlake that contains details on the use and maintenance of
Erosion and Sediment Controls.
Clearing or Commencement of Construction means the initial disturbance of soils
associated with Clearing, Grading, or excavation activities, as well as other
construction-related activities (e.g., stockpiling of fill material, demolition).
Common Plan of Development is as defined by the Texas Construction General
Permit TXR150000 or its successor.
Construction General Permit (CGP) means the Texas Construction General Permit
TXR150000, its successor or any other state regulation to control runoff from
Construction Sites issued by the Texas Commission on Environmental Quality
(TCEQ) or the state regulatory authority.
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Construction Site(s) means any Clearing,Grading, and excavating that results in land
disturbance. A Construction Site also includes but is not limited to any
stockpiling or other activity that results in exposed soils. This includes the
construction of pools and the installation and maintenance of public utilities such
as telephone, gas, electric, telecommunications, etc. This excludes the disturbance
of soils for emergency activities that are immediately necessary for the protection
of life, property, or natural resources.
CSN means Construction Site Notice as defined by the Construction General Permit
TXR150000 or its successor.
Director means the Director of Public Works and/or the Director of Planning and
Development Services or their authorized representatives.
Drainage Way or Conveyance means curbs, gutters, man-made channels and ditches,
drains, pipes, and other constructed features designed or used for flood control or
to otherwise transport storm water runoff.
Erosion Control means a measure that minimizes erosion to the maximum extent
practicable.
Erosion and Sediment Control Submittal Packet means documents, including a set of
plans prepared by or under the direction of the Owner or Operator of the
Construction Site that indicate the specific measures and sequencing to be used to
control erosion and sediment on a Construction Site during and after construction
and supporting documents as specified by the City of Southlake Erosion and
Sediment Control Manual.
Final Stabilization means all soil disturbing activities at the Site have been completed
and a uniform (i.e. evenly distributed, without large bare areas) perennial
vegetative cover with a density of at least 70% of the native background
vegetative cover for the area has been established on all unpaved areas and areas
not covered by permanent structures, or equivalent permanent stabilization
measures (such as the use of riprap, gabions, or geotextiles) have been employed.
These conditions are applicable to all Construction Sites, including individual
residential lot Construction Sites.
Grading means changing the elevation of a parcel of land by means of moving
earthen material including excavation or fill of material, including the resulting
conditions thereof.
Multi-Sector General Permit (MSGP) means the Texas Multi-Sector General Permit,
TXR050000, its successor, or any other state regulation to control runoff from
industrialSites issued by the Texas Commission on Environmental Quality
(TCEQ) or the state regulatory authority.
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Municipal Separate Storm Sewer System (MS4) means the separate storm sewer
system owned and operated by the City of Southlake. The MS4 includes all
Drainage Ways, storm water Conveyances, bar ditches, swales, and streets owned
and operated by the City of Southlake or any private Drainage Way that drains to
or contributes flow to the public drainage system and conveys storm water
discharges to the surface water of the state.
NOCmeans Notice of Change as defined by the Construction General Permit
TXR150000 or its successor.
NOI means Notice of Intent as defined by the Construction General Permit
TXR150000 or its successor.
NOT means Notice of Termination as defined by the Construction General Permit
TXR150000 or its successor.
Operator means the person or persons who, either individually or taken together,
meet either of the following two criteria: (1) has operational control over the
facility specifications (including the ability to make or direct modifications in
specifications); or (2) has day-to-day operational control over those activities at
the facility necessary to ensure compliance with pollution prevention
requirements and any permit conditions.
Ownermeans the person who owns a facility or part of a facility.
Perimeter Control means a form of Erosion Control that prevents sediment from
leaving a Site.
Person means any individual, partnership, co-partnership, firm, company,
corporation, association, joint-stock company, trust, estate, governmental entity,
or any other legal entity; or their legal representatives, agents or assigns. This
definition includes all federal, state, and local governmental entities.
Pollutant means dredged spoil, solid waste, incinerator residue, sewage, garbage,
sewage sludge, filter backwash, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar
dirt, sediment, and industrial, municipal, and agricultural waste discharged into
surface water of the state.
Sediment Control means measures that minimize eroded sediment from leaving the
Site to the maximum extent practicable.
Secondary Containment means a structure designed to capture spills or leaks, as from
a container or tank, and has the capacity to hold 110 (one hundred ten) percent of
the original container.
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Site means a parcel of land or a contiguous combination thereof, where Grading is
performed as a single unified operation.
Texas Surface Water Quality Standards means the standards set forth in Title 30,
Chapter 307 of the Texas Administrative Code.
Temporary Stabilization means a condition where exposed soils or disturbed areas are
provided a protective cover or other structural control to prevent the migration of
Pollutants.Temporary stabilization may include BMPs listed in the Integrated
Storm Water Management (iSWM) manual produced by the North Central Texas
Council of Governments or subsequent similar documents (i.e. temporary seeding,
geotextiles, mulches, Perimeter Controls, and other techniques to reduce or
eliminate erosion until either Final Stabilization can be achieved or until further
construction activities take place.)
Sec. 9.5-403 Applicability of Ordinance and Compliance Requirements.
1)This ordinance shall apply to all Construction Sites within the city limits of the City
of Southlake.
2)Requirements for Sites Disturbing Less Than One (1) Acre or within a Common
Plan of Development that is Disturbing Less Than One (1) Acre.
a)AllConstruction Sites disturbing less than one (1) acre of land or within a
Common Plan of Development that is disturbing less than one (1) acre of land
shall comply with all sections of this ordinance except Sections 9.5-408 and 9.5-
409.
b)AnyConstruction Site disturbing less than one acre may be required, if directed
by the Director of Public Works, to comply with Sections 9.5-408 and 9.5-409.
3)Requirements for Sites Disturbing More Than One (1) Acre or within a Common
Plan of Development that is Disturbing More Than One (1) Acre.
a)AllConstruction Sites disturbing more than one (1) acre of land or within a
Common Plan of Development that is disturbing more than one (1) acre of land
shall comply with all sections of this ordinance.
b)The Owner or Operator shall ensure that copies of the Notice of Intent (NOI),
Notice of Change (NOC),Notice of Termination (NOT), and Construction Site
Notice(CSN) are provided to the City of Southlake when appropriate.
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4)Requirement for all Construction Sites.
a)AllSites shall comply with the requirements of the current Construction
General Permit (CGP).
b)Inspections.
i)AllConstruction Sites shall be inspected or cause to be inspected by the
Owner or Operator of the Site for evidence of or potential for violations of
this ordinance.Construction Sites subject to the CGP shall be inspected at the
frequency required by the CGP or more frequently if directed by the Director
of Public Works.
ii)AllConstruction Sites shall be inspected after all rain events exceeding 2” in
addition to inspection requirements in this section. Rain events are
determined by the measurement documented by the City of Southlake.
iii)AllOwners or Operators of a Construction Site disturbing more than one (1)
acre of land or within a Common Plan of Development that is disturbing more
than one (1) acre of land shall document inspections. When such a project is
released for construction by the City of Southlake, as described in Sections
9.5-408 and 9.5-409, the City of Southlake will provide the applicant with a
number and access code for that job on the website. The applicant shall:
(1)Within ten (10) working days of receipt of the permit number and access
code, enter the website and create and/or confirm a list of Erosion and
Sediment Control practices that are proposed on the approved plan.
(2)Within ten (10) working days of the actual start of work – enter the
website and document that the practices have been installed in accordance
with the approved plan.
(3)Provide an electronic version of inspection documentation at the
frequency indicated by the Erosion Control Submittal Packet and of event
driven inspections. Documentation will be of the condition of the
practices and will note any repairs needed and action taken.
(4)Within ten (10) working days of installation of Final Stabiliazation enter
the website and note that the project has been terminated and a Notice of
Termination (NOT) has been submitted to the TCEQ and the City of
Southlake, when appropriate.
(5)Upon written notice by an agent of the City of Southlake to the applicant
or the applicant’s designated representative regarding an Erosion Control
action or repair needed to bring the Site into compliance, the Owner or
Operator shall comply with noted actions or repairs, and record such
actions within 48 hours of the notification and prior to the next rain event.
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Failure to record such actions within 72 hours of notification shall be a
violation of this ordinance.
c)Erosion and Sediment Control Measures.Erosion and Sediment Control
measures shall be designed and established at the Construction Site in a manner
that minimizes erosion and retain sediment on-site to the maximum extent
practicable with consideration of the topography, soil type, and rainfall.BMPs
and Control Measures described in the Integrated Storm Water Management
(iSWM) Manual produced by the North Central Texas Council of Governments
or subsequent versions are minimum control measures where appropriate;
however,BMPs not listed in the iSWM Manual may be considered.
d)Preserve existing vegetation. The Owner or Operator of the Site shall ensure
that existing vegetation is preserved to the maximum extent practicable. Should
the existing vegetation not be preserved, the Owner or Operator shall take steps
necessary to stabilize the Site in order to prevent erosion.
e)Stabilization.Erosion Control and stabilization measures must be initiated as
soon as practicable in portions of the Construction Site where construction
activities have temporarily ceased. These measures must be initiated no more
than 14 days after the construction activity in that portion of the Construction
Site where activity has temporarily or permanently ceased, except where earth
disturbing activities will be resumed within 21 days.
f)Minimize off-site tracking.Off-site tracking of sediment, in the form of mud,
rocks, dirt, etc. is not permitted. Where required to prevent off-site tracking of
sediment, a construction entrance shall be established and maintained.
g)Maintenance.
i)AllTemporary Stabilization measures shall be maintained until Final
Stabilization is established and a Notice of Termination (NOT) is filed with the
TCEQ and the finalization of a Southlake Termination Inspection, as
described in Section 9.5-410 of this ordinance.
ii)TheOwner or Operator of any Site shall perform maintenance as necessary to
maintain the continued effectiveness of storm water controls within 48 hours
of discovery of failure, damage, or compromise and prior to the next rain
event.
iii)Failure to maintain BMPs in proper working order shall be a violation of this
ordinance.
h)Sediment or silt accumulation. Should the control measures at a Sitefail, in part
or in total, the Owner or the Operator shall remove all sediment and siltation
accumulation caused by BMP failure from the City’s MS4, including streets and
rights-of-way, within 48 hours of discovery or prior to the next rain event.
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Removal includes sweeping streets, sidewalks, and other infrastructure and
removing sediment from the MS4.
i)Good housekeeping measures for chemicals and wastes. Good housekeeping
measures shall be provided on-site to prevent and contain spills of paints,
solvents, fuels, septic waste, and other chemicals hazardous to the public or
environment or might cause polluted runoff. Proper cleanup and disposal of any
such spills shall be in accordance with state, federal, and local requirements.
j)Waste.
i)A location shall be established on-site, or near the Site, for personal and
construction waste so as to prevent waste from involuntarily leaving the Site.
ii)Proper waste disposal and waste management techniques shall be
implemented, including covering waste materials, minimizing ground contact
with regulated or hazardous chemicals and trash, and keeping trash
receptacles off of paved surfaces or other locations that drain directly to a
storm drain system or local waterway.
k)Sanitary waste. Sanitary waste facilities shall be maintained so that the waste
does not create a hazard to the public or the environment. Sanitary waste
facilities should not be placed over any paved surfaces.
l)Dust suppression. Techniques shall be employed to prevent air-borne dust from
leaving the Site.
m)Street sweeping to remove sediments and siltation.
i)Sediments and other materials that enter the streets shall be limited to the
greatest extent practicable.
ii)Street sweeping shall be conducted in a manner that minimizes dust, including
sweeping during periods of minimal wind or using a vacuum sweeper.
iii)All property Owners or Operators within a Common Plan of Development are
expected to coordinate efforts to prevent sedimentation from entering the
MS4. All Owners or Operatorsof contributing Construction Sites, as
determined at the discretion of the City, shall be held responsible jointly and
severally to remove sediments from the street.
iv)In absence of a coordinated effort amongst all property Owners or Operators,
the City reserves the right to abate the problem and charge all the property
Owners contributing to the violation.
n)Temporary Concrete batch plants. Temporary concrete batch plants shall
comply with zoning requirements.
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o)Concrete wash-out.
i)AnOperator shall specify a containment area and/or a concrete wash-out
device that will be established and maintained for all Sites.
ii)Signs six (6) square feet in size and emblazoned with “CONCRETE
WASHOUT AREA” in both English and Spanish shall be posted in full view
of any concrete delivery trucks.
iii)Failure of concrete delivery trucks to utilize specified concrete wash-out areas
shall be a violation of this ordinance.
p)No off street parking shall be permitted on vacant lots or where construction has
commenced with the exception of short term delivery not to exceed two (2)
hours on approved surfaces. Signs six (6) square feet in size and emblazoned
with “OFF STREET PARKING PROHIBITED” in both English and Spanish
shall be posted on vacant lots by developers and on permitted lots by the
contractor.
Sec. 9.5-404 Responsibility of all On-Site Personnel.
It is a violation of this ordinance for any Person to damage or allow to be damaged any
temporary or permanent storm water Control Measures through their actions or inactions
without promptly restoring the Control Measure to an effective and efficient state.
Sec. 9.5-405 Training Required.
After 180 days of the effective date of this ordinance:
1)no contractor or sub-contractor shall commence work on a Construction Site
without first attending training on storm water impacts from construction activities
and maintenance of Control Measures.
a)Training shall be provided by the City of Southlake.
b)Prior training or training provided by another entity shall be considered by City
staff. Staff shall consider the merits of said alternative training and may
disapprove of this training for any reason.
c)Proof of attendance of training provided by the City of Southlake shall be
provided in the form of a certificate.
2)Contractors shall have proof of attendance available for inspection at any
Construction Site. The contractor shall be responsible for ensuring that each of its
employees is knowledgeable of the conditions of this ordinance.
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Sec. 9.5-406 Allowable Discharges.
The following non-storm water discharges may be
discharged from the Construction Site:
1)water line flushing (excluding discharges of hyper-chlorinated water, unless the
water is first dechlorinated and discharges are not expected to adversely affect
aquatic life);
2)runoff or return from landscape irrigation, lawn irrigation, and other irrigation
utilizing potable water, groundwater or surface water resources;
3)discharges from potable water sources;
4)diverted stream flows;
5)rising ground waters and springs;
6)uncontaminated ground water infiltration;
7)uncontaminated pumped ground water;
8)flows from wetlands and riparian habitats;
9)discharges or flows from fire fighting activities (fire fighting activities do not
include washing of trucks, runoff water from training activities, test water from fire
suppression systems, and similar activities);
10)other allowable non-storm water discharges listed in 40 CFR §
122.26(d)(2)(iv)(B)(1) or its successor;
11)non-storm water discharges that are specifically listed in the Multi Sector General
Permit (MSGP) and the CGP; and,
12)other similar occasional incidental non-storm water discharges unless the TCEQ
develops permits or regulations addressing these discharges.
Sec. 9.5-407 Prohibited Discharges
. The following list of discharges from a
Construction Site to the City of Southlake’s MS4 are prohibited:
1)Excessive amounts of sediment that would cause accumulation of sediment in the
City of Southlake’s MS4.
2)motor oil or other vehicle fluids;
3)concrete truck wash out water;
4)rinse water or waste water from operations that are contaminated with chemicals or
waste products from operations, including pool installation products;
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5)wash-off water associated with concrete cutting and exposed aggregate pressure
washing;
6)trash or debris associated with the Construction Site;
7)runoff that would cause the City of Southlake’s MS4 to discharge into the waters of
the state water that would violate the Texas Surface Water Quality Standards;
8)Any polluted liquids.
Sec. 9.5-408 Erosion and Sediment Control Submittal Required.
AnErosion and Sediment Control Submittal Packet shall be submitted to the City and
reviewed and released by the City prior to the Commencement of any activity on a
Construction Site. Commencement of activity before the submittal, review and release of
anErosion and Sediment Control Submittal Packet shall be a violation of this ordinance.
1)TheErosion and Sediment Control Submittal Packet shall include all
documentation required by the City’s Erosion Control Submittal process as defined
in the City of Southlake Erosion and Sediment Control Manual.
2)TheErosion and Sediment Control Submittal Packet shall be submitted to the City
no later than 10 days prior to commencement of any construction activities.
Sec. 9.5-409 Review and Release for Implementation. Responsibility.
1)The City shall review each Erosion and Sediment Control Submittal Packet
submitted for any Construction Site to determine its conformance with the
provisions of this Chapter. The City shall, in writing
a)acknowledge the reciept of the Erosion and Sediment Control Submittal Packet
and its completeness for review;
b)release for implementation the Erosion and Sediment Control Submittal Packet
subject to reasonable conditions as may be necessary to secure substantially the
objectives of this regulation, and release work subject to these conditions; or
c)deny release of the Erosion and Sediment Control Submittal Packet, indicating
the reasons and procedure for submitting a revised plan. Re-submittal and
release for implementation of an Erosion and Sediment Control Submittal
Packet must occur before Clearing or commencement of construction at a
Construction Site.
2)Temporary approval. With approval from the Director of Public Works, a
Construction Site may be temporarily approved for Clearing or commencement of
construction before approval of the Erosion and Sediment Control Submittal Packet.
This temporary approval may be revoked at any time for any reason a Director sees
fit for revocation.
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3)Responsibility. The Owner or Operator shall not be relieved of responsibility for
damage to persons or property otherwise imposed by law, and the City or its officers
or agents will not be made liable for such damage, by
a)the release for implementaton of an Erosion and Sediment Control Submittal
Packet under this ordinance;
b)the compliance with provisions of the Erosion and Sediment Control Submittal
Packet or with conditions attached to it by the City;
c)failure of City officials to observe or recognize hazardous or unsightly
conditions;
d)failure of City officials to recommend denial of release for implementation of an
Erosion and Sediment Control Submittal Packet or to deny an Erosion and
Sediment Control Submittal Packet;
e)granting exemptions from the requirements of this ordinance.
4)Materials used for temporary Erosion Control or Sediment Control (e.g., silt fences,
inlet protection) and established in support of the Construction Site, shall be
removed by the Owner or Operator of the Site once Final Stabilization has been
established.
Sec. 9.5-410 Termination of Operational Control
1)A final acceptance of a public imprevement associated with land development,
issuance of a Certificate of Occupancy for a building or the issuance of a final
“Green Tag” for other construction covered by this ordinance shall be contingent
upon an inspection for termination.
2)Submita Notice of Termination (NOT).
a.Where an NOI has been submitted to the TCEQ, a letter of final
acceptance of public improvement, a Certificate of Occupancy, or final
“Green Tag” shall not be issued until Final Stabilization is established and
maintained as specified in the approved Erosion Control Submittal Packet.
The developer for a subdivision or other large plat shall continue to
maintain all temporary Erosion and Sediment Control until Final
Stabilization has been established on all those lots within the subdivision
or large plat for which a building permit has not been issued.
b.ANOT should not be submitted to the TCEQ or other regulatory agency
unless all requirements for submittal have been completed.
c.The city reserves the right to refuse issuance of the final acceptance or
certificate of occupancy when in disagreement with the submittal of an
NOT.
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Sec. 9.5-411 Right of Entry: Inspection and Sampling
ADirector shall have the right to enter any Site discharging storm water to the Municipal
Separate Storm Sewer System (MS4) or to waters of the state to determine if the Owner or
Operator is complying with all requirements of this Chapter, and with any state or federal
discharge permit, limitation, or requirement. Owners or Operators shall allow a Director
ready access to all parts of the Site for the purposes of inspection, sampling, records
examination and copying, and for the performance of any additional duties. Owners or
Operators shall make available to a Director, upon request, any SWPPP’s, modifications
thereto, self-inspection reports, monitoring records, compliance evaluations, Notices of
Intent, and any other records, reports, and other documents related to compliance with
this Chapter and with any state or federal discharge permit.
1)Where the Owner or Operator has security measures in force which require proper
identification and clearance before entry into its premises, the Owner or Operator
shall make necessary arrangements with itssecurity guards so that, upon
presentation of suitable identification, the Directors or their authorized
representative(s) will be permitted to enter without delay for the purposes of
performing their responsibilities.
2)ADirector shall have the right to set up on the Site, or require installation of, such
devices as are necessary to conduct sampling and/or metering of the Owner or
Operator’s operations.
3)ADirector may require any Owner or Operator to conduct specified sampling,
testing, analysis, and other monitoring of its storm water discharges, and may
specify the frequency and parameters of any such required monitoring.
4)ADirector may require the Owner or Operator to install monitoring equipment as
necessary at the discharger’s expense. The Site’s sampling and monitoring
equipment shall be maintained at all times in a safe and proper operating condition
by the Owner or Operator at its own expense. All devices used to measure storm
water flow and quality shall be calibrated to ensure their accuracy.
5)Any temporary or permanent obstruction to safe and easy access to the Site to be
inspected and/or sampled shall be promptly removed by the Owner or Operator at
the written or verbal request of a Director and shall not be replaced. The costs of
clearing such access shall be borne by the Owner or Operator.
6)Unreasonable delays in allowing a Director access to the Site shall be a violation of
this Chapter.
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Sec. 9.5-412 Search Warrants
If a Director, or his/her authorized representative, has been refused access to any part of a
Site from which storm water is discharged, and he/she is able to demonstrate probable
cause to believe that there may be a violation of this Chapter or any state or federal
discharge permit, limitation, or requirement, or that there is a need to inspect and/or
sample as part of a routine inspection and sampling program of the City designed to
verify compliance with this Chapter or any order issued hereunder, or to protect the
overall public health, safety, and welfare of the community, then a Director may seek
issuance of a search warrant from any court of competent jurisdiction. For purposes of
this Section, the City Manager, Director of Public Works, the Director of Planning and
Development, the City Engineer, and the duly authorized representatives of these City
departmental Directors are declared to be “health officers,” as that term is used in the
Texas Code of Criminal Procedure, Article 18.05.
Sec. 9.5-413 Warning Notice
When a Director finds that any Person has violated, or continues to violate, any provision
of this Chapter, or any order issued hereunder, a Director may serve upon that Person a
written Warning Notice, specifying the particular violation believed to have occurred and
requesting the Owner or Operator to immediately investigate the matter and to seek a
resolution whereby any offending discharge will cease. Investigation and/or resolution of
the matter in response to the Warning Notice in no way relieves the alleged violator of
liability for any violations occurring before or after receipt of the Warning Notice.
Nothing in this Section shall limit the authority of a Director to take any action, including
emergency action or any other enforcement action, without first issuing a Warning
Notice.
Sec. 9.5-414 Notification of Violation
When a Director finds that any Person has violated, or continues to violate, any provision
of this Article, or any order issued hereunder, a Director may serve upon that Person a
written Notice of Violation. Within ten (10) calendar days of the receipt of this notice, an
explanation of the violation and a plan for the satisfactory correction and prevention of
reoccurrence thereof, to include specific required actions, shall be submitted by the
alleged violator to the issuing Director. If the alleged violator denies that any violation
occurred and/or contends that no corrective action is necessary, an explanation of the
basis of any such denial or contention shall be submitted to the issuing Director within
ten (10) calendar days of receipt of the notice. Submission of an explanation and/or plan
in no way relieves the alleged violator of liability for any violations occurring before or
after receipt of the Notice of Violation. Nothing in this Section shall limit the authority of
aDirector to take any action, including emergency action or any other enforcement
action, without first issuing a Notice of Violation. A Director may enter into Consent
Orders, assurances of voluntary compliance, or other similar documents establishing an
agreement with any Person responsible for noncompliance with any provision in this
Chapter or any order issued hereunder. Such documents may include specific action to be
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taken by the Person to correct the noncompliance within a time period specified by the
document. Such documents shall have the same force and effect as the administrative
orders issued pursuant to Sections 9.5-416, 9.5-417 and 9.5-418 of this Chapter and shall
be judicially enforceable.
Sec. 9.5-415 Show Cause Hearing
ADirector may order any Person who has violated, or continues to violate, any provision
of this Chapter, or any order issued hereunder, to appear before the Director and show
cause why a proposed enforcement action should not be taken. Notice shall be served on
the alleged violator specifying the time and place for the hearing, the proposed
enforcement action, the reasons for such action, and a request that the alleged violator
show cause why the proposed enforcement action should not be taken. The notice of the
hearing shall be served personally or by registered or certified mail (return receipt
requested) at least ten (10) calendar days prior to the hearing. Such notice may be served
on any authorized representative of the alleged violator. The hearing shall be conducted
pursuant to the rights and procedures specified in Section 9.5-420(7) of this Chapter. A
show cause hearing shall not be a bar against, or prerequisite for, taking any other action
against the alleged violator.
Sec. 9.5-416 Compliance Orders
When a Director finds that any Person has violated, continues to violate, or threatens to
violate, any provision of this Chapter, or any order issued hereunder, the Director may
issue an order to the violator directing that the violator come into compliance within a
specified time limit, prior to commencement or continuance of operation, or immediately.
Compliance orders also may contain other requirements to address the noncompliance,
including additional self-monitoring, and management practices designed to minimize the
amount of Pollutants discharged to the MS4 and waters of the state. A compliance order
may not extend the deadline for compliance established by a state or federal standard or
requirement, nor does a compliance order relieve the Person of liability for any violation,
including any continuing violation. Issuance of a compliance order shall not be a bar
against, or a prerequisite for, taking any other action against the violator.
Sec. 9.5-417 Remediation, Abatement, and Restoration Orders
When a Director finds that a Person has violated, or continues to violate, any provision
of this Chapter, or any order issued hereunder, and that such violation has adversely
affected the MS4, or the waters of the state, the Director may issue an order to the
violator directing him/her to undertake and implement any appropriate action to
remediate and/or abate any adverse effects of the violation upon the MS4, or the waters of
the state, and/or to restore any part of the MS4, or the waters of the state. Such remedial,
abatement, and restoration action may include, but not be limited to: monitoring,
assessment, and evaluation of the adverse effects and determination of the appropriate
remedial, abatement, and/or restoration action; confinement, removal, cleanup, treatment,
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and disposal of any discharged or released pollution or contamination; prevention,
minimization, and/or mitigation of any damage to the public health, welfare, or the
environment that may result from the violation; restoration or replacement of City
property or natural resources damaged by the violation. The order may direct that the
remediation, abatement, and/or restoration be accomplished on a specified compliance
schedule and/or be completed within a specified period of time. An order issued under
this Section does not relieve the violator of liability for any violation, including any
continuing violation. Issuance of an order under this Section shall not be a bar against, or
a prerequisite for, taking any other action against any responsible party.
Sec. 9.5-418 Emergency Cease and Desist Orders
When a Director finds that any Person has violated, continues to violate, or threatens to
violate, any provision of this Chapter, or any order issued hereunder, or that the Person’s
past violations are likely to recur, and that the Person's violation(s), or threatened
violation(s), have caused or contributed to an actual or threatened discharge to the MS4 or
waters of the state which reasonably appears to present an imminent or substantial
endangerment to the health or welfare of Persons or to the environment, the Director
may issue an order to the violator directing it immediately to cease and desist all such
violations and directing the violator to:
1)Immediately comply with all requirements of this Chapter; and
2)Take such appropriate preventive action as may be needed to properly address a
continuing or threatened violation, including immediately halting operations
and/or terminating the discharge.
AnyPerson notified of an emergency order directed to it under this Section shall
immediately comply and stop or eliminate its endangering discharge. In the event of a
Person’s failure to immediately comply voluntarily with the emergency order, a Director
may take such steps as deemed necessary to prevent or minimize harm to the MS4 or
Waters of the state, including immediate termination of a Site's water supply, sewer
connection, or other municipal utility services. A Director may allow the Person to
commence or recommence its discharge when it has demonstrated to the satisfaction of
theDirector that the period of endangerment has passed, unless further termination
proceedings are initiated against the Person. The cease and desist order shall not be a bar
against, or a prerequisite for, taking any other action against the Person under this
Chapter. A Person that is responsible, in whole or in part, for any discharge presenting
imminent endangerment shall submit a detailed written statement describing the causes of
the harmful discharge and the measures taken to prevent any future occurrence, to the
issuingDirector within ten (10) calendar days of receipt of the emergency cease and
desist order.
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Sec. 9.5-419 Stop Work Orders
Whenever a Director finds that any Owner of Operator of a Construction Site has
violated, threatens to violate, or continues to violate, any provision of this Chapter, or any
order issued hereunder, the Director may issue a Stop Work Order to the Owner or
Operator, and require that a copy of the Stop Work Order be posted at the Construction
Site and distributed to all City departments and divisions whose decisions affect any
activity at the Construction Site. Unless express written exception is made by the issuing
Director, the Stop Work Order shall prohibit any further construction activity, or any
commencement of construction activity, at the Site and shall bar any further inspection or
approval by the City associated with a building permit, grading permit, or any other City
approval necessary to commence or continue construction or to assume occupancy at the
Site. Issuance of a Stop Work Order shall not be a bar against, or a prerequisite for, taking
any other action against the violator.
Sec. 9.5-420 Reconsideration and Hearing
1)AnyPerson subject to a Compliance Order under Section 9.5-416, a Remediation,
Abatement, or Restoration Order under Section 9.5-417, an Emergency Cease and
Desist Order under Section 9.5-418, or a Stop Work Order under Section 9.5-419 of
this Chapter may petition the issuing Director to reconsider the basis for his/her
order within fifteen (15) calendar days of the affected Person’s notice of issuance of
such an order.
2)Failure to submit a timely written petition for reconsideration shall be deemed to be
a waiver of any further right to administrative reconsideration or review of the
order.
3)In its petition, the petitioning party must indicate the provisions of the order
objected to, the reasons for the objection(s), any facts that are contested, the
evidence that supports the petitioner’s view of the facts, any alternative terms of an
order that the petitioner would accept, and whether the petitioning party requests a
hearing on its petition.
4)The effect of any Compliance Order under Section 9.5-416 Remediation,
Abatement, or Restoration Order under Section 9.5-417, and any Stop Work Order
under Section 9.5-419 shall be stayed pending the issuing Director's reconsideration
of the petition, and any hearing thereon, unless the issuing Director expressly
makes a written determination to the contrary. The effectiveness of any Emergency
Cease and Desist Order under Section 9.5-418 shall not be stayed pending the
issuingDirector’s reconsideration, or any hearing thereon, unless the issuing
Director expressly and in writing stays his/her emergency order.
5)Within thirty (30) calendar days of the submittal of a petition for reconsideration,
the issuing Director shall either (1) grant the petition and withdraw or modify the
order accordingly; (2) deny the petition without a hearing, if no material issue of
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fact is raised; or (3) if a hearing has been requested and a material issue of fact has
been raised, set a hearing on the petition.
6)Written notice of any hearing set by the issuing Director pursuant to Section 9.5-
420(5) above shall be served on the petitioning party personally or by registered or
certified mail (return receipt requested) at least ten (10) calendar days prior to the
hearing. Such notice may be served on any authorized representative of the
petitioning party.
7)The issuing Director may himself/herself conduct the hearing and take evidence, or
he/she may designate any employee of the City or any specially-designated attorney
or engineer to:
a.issue in the name of the City notices of hearing requesting the attendance
and testimony of witnesses and the production of evidence relevant to
any matter involved in the hearing;
b.take evidence;
c.transmit a report of the evidence and hearing, including transcripts and
other evidence, together with recommendations to the Director for
action thereon.
At any hearing held pursuant to this Section, testimony taken shall be under oath
and recorded. Any party is entitled to present his/her case or defense by oral or
documentary evidence and to conduct such cross-examination as may be required
for a full and true disclosure of the facts. A transcript will be made available to any
party to the hearing upon payment of the usual charges thereof.
8)After the issuing Director has reviewed the evidence, he/she shall either (1) grant
the petition; (2) deny the petition; or (3) grant the petition in part and deny it in part.
The issuing Director may modify his/her order as is appropriate based upon the
evidence and arguments presented at the hearing and his/her action on the petition.
Further orders and directives as are necessary and appropriate may be issued.
Sec. 9.5-421 Appeal
AnyPerson who remains adversely affected by a Director’s order after petitioning for
reconsideration pursuant to Section 9.5-420, or who is subject to an order of a Director
issued following a Show Cause Hearing under Section 9.5-415, may challenge the final
action of the Director in an appropriate court of competent jurisdiction.
Sec. 9.5-422 Civil Remedies
1)Whenever it appears that a Person has violated, or continues to violate, any
provision of this Article that relates to:
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a.the preservation of public safety relating to the materials or methods used
in construction of any structure or improvement of real property;
b.the preservation of public health or to the fire safety of a building or other
structure or improvement;
c.the establishment of criteria for land subdivision or construction of
buildings, including street design;
d.dangerously damaged or deteriorated structures or improvements;
e.conditions caused by accumulations of refuse, vegetation, or other matter
that creates breeding and living places for insects and rodents; or
f.point source effluent limitations or the discharge of a Pollutant, other than
from a nonpoint source, into the MS4,
the City may invoke Sections 54.012 - 54.017 of the Texas Local Government Code
and petition the State district court or the county court at law of Tarrant County,
through the City Attorney, for either the injunctive relief specified in Section 9.5-
422(2) or the civil penalties specified in Section 9.5-422(3) below, or both the
specified injunctive relief and civil penalties.
2)Pursuant to Section 54.016 of the Texas Local Government Code, the City may
obtain against the Owner or Operator of a Site a temporary or permanent
injunction, as appropriate, that:
a.prohibits any conduct that violates any provision of this Chapter that
relates to any matter specified in Sections 9.5-422(a)(1)-(6), above; or
b.compels the specific performance of any action that is necessary for
compliance with any provision of this Chapter that relates to any matter
specified in Section 9.5-422(1)(a)-(f), above.
3)Pursuant to Section 54.017 of the Texas Local Government Code, the City may
recover a civil penalty of not more than $1,000 per day for each violation of any
provision of this Chapter that relates to any matter specified in Sections 9.5-
422(1)(a)-(e) above, and a civil penalty of not more than $5,000 per day for each
violation of any provision of this Chapter that relates to any matter specified in
Section 9.5-422(1)(f) above, if the City proves that:
a.the defendant was actually notified of the provisions of the Chapter; and
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b.after the defendant received notice of the provisions of this Chapter, the
defendant committed acts in violation of the Chapter or failed to take
action necessary for compliance with the Chapter.
Sec. 9.5-423 Criminal Penalties
1)AnyPerson who has violated any provision of this Chapter, or any order issued
hereunder, shall be strictly liable for such violation, regardless of the presence or
absence of a culpable mental state, and shall, upon conviction, be subject to a fine
of not more than $2000 per violation, per day.
2)AnyPerson who has knowingly made any false statement, representation, or
certification in any application, record, report, plan, or other documentation filed, or
required to be maintained, pursuant to this Chapter, or any order issued hereunder,
or who has falsified, tampered with, or knowingly rendered inaccurate any
monitoring device or method required under this Chapter shall, upon conviction, be
subject to a fine of not more than $2000 per violation, per day.
3)In determining the amount of any fine imposed hereunder, the court shall take into
account all relevant circumstances, including, but not limited to, the extent of harm
caused by the violation, the magnitude and duration of the violation, any economic
benefit gained through the violation, corrective actions by the violator, the
compliance history of the violator, the knowledge, intent, negligence, or other state
of mind of the violator, and any other factor as justice requires.
Sec. 9.5-424 Civil Suit Under the Texas Water Code
Whenever it appears that a violation or threat of violation of any provision of Section
26.121 of the Texas Water Code, or any rule, permit, or order of the Texas Commission
on Environmental Quality, has occurred or is occurring within the jurisdiction of the City,
exclusive of its extraterritorial jurisdiction, the City, in the same manner as the Texas
Commission on Environmental Quality, may have a suit instituted in a state district court
through its City Attorney for the injunctive relief or civil penalties or both authorized in
Sections 7.031 and 7.032 of the Texas Water Code, against the Person who committed or
is committing or threatening to commit the violation. This power is exercised pursuant to
Section 7.351 of the Texas Water Code. In any suit brought by the City under this Section
9.5-418, the Texas Commission on Environmental Quality is a necessary and
indispensable party.
Sec. 9.5-425 Remedies Nonexclusive
The remedies provided for in this Chapter are not exclusive of any other remedies that the
City may have under state or federal law or other City ordinances. The City may take
any, all, or any combination of these actions against a violator. The City is empowered to
take more than one enforcement action against any violator. These actions may be taken
concurrently.
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Sec. 9.5-426 Performance and Maintenance Bonds
ADirector may, by written notice, order any Owner or Operator of a source of storm
water discharge associated with construction or industrial activity to file a satisfactory
bond, payable to the City, in a sum not to exceed a value determined by the Director to
be necessary to achieve consistent compliance with this Article, any order issued
hereunder, any required Best Management Practice, and/or any SWPPP provision, and/or
to achieve Final Stabilization of the Site. The City may deny approval of any building
permit, grading permit, subdivision plat, site development plan, or any other City permit
or approval necessary to commence or continue construction or any industrial activity at
theSite, or to assume occupancy, until such a performance or maintenance bond has been
filed.
Sec. 9.5-427 Liability Insurance
ADirector may, by written notice, order any Owner or Operator of a source of storm
water discharge associated with construction or industrial activity to submit proof that it
has obtained liability insurance, or other financial assurance, in an amount greater than or
equal to a value determined by the Director, that is sufficient to remediate, restore, and
abate any damage to the MS4, the waters of the state, or any other aspect of the
environment that is caused by the discharge.
SECTION 2.
This ordinance shall be cumulative of all provisions of ordinances and of the
Code of Ordinances of the City of Southlake, Texas, as amended, except where the
provisions of this ordinance are in direct conflict with the provisions of such ordinances
and such Code, in which event the conflicting provisions of such ordinances and such
Code are hereby repealed.
SECTION 3.
It is hereby declared to be the intention of the City Council that the phrases,
clauses, sentences, paragraphs, and sections of this ordinance are severable, and if any
phrase, clause, sentence, paragraph or section of this ordinance shall be declared
unconstitutional by the valid judgment or decree of any court of competent jurisdiction,
such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences,
paragraphs and sections of this ordinance, since the same would have been enacted by the
City Council without the incorporation in this ordinance of any such unconstitutional
phrase, clause, sentence, paragraph or section.
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SECTION 4.
All rights and remedies of the City of Southlake are expressly saved as to any and
all violations of the provisions of any ordinances affecting Erosion and Sediment Control
which have accrued at the time of the effective date of this ordinance; and, as to such
accrued violations and all pending litigation, both civil and criminal, whether pending in
court or not, under such ordinances, same shall not be affected by this ordinance but may
be prosecuted until final disposition by the courts.
SECTION 5.
The City Secretary of the City of Southlake is hereby authorized to publish this
ordinance in book or pamphlet form for general distribution among the public, and the
operative provisions of this ordinance as so published shall be admissible in evidence in
all courts without further proof than the production thereof.
SECTION 6.
The City Secretary of the City of Southlake is hereby directed to publish caption,
penalty clause, and effective date clause in any manner allowed by law.
SECTION 7.
This Ordinance shall be in full force and effect form and after its passage and
publication as provided by law or November 3, 2008, whichever occurs later, and it is so
ordained.
PASSED AND APPROVED on the 1st reading the ____ day of
__________________, 2008.
_____________________________
MAYOR
ATTEST:
______________________________
CITY SECRETARY
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PASSED AND APPROVED on the 2nd reading the ____ day of
_________________, 2008.
______________________________
MAYOR
ATTEST:
______________________________
CITY SECRETARY
APPROVED AS TO FORM AND LEGALITY:
_________________________________
CITY ATTORNEY
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