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HomeMy WebLinkAboutA001 - Letter dated November 22, 2005 with comments from Developer's Council of the Homebuilders Association BELIN LAMSON McCORMICK ZUMBACH FLYNN A PROFESSIONAL CORPORATION ATTORNEYS AT LAW Jeffrey E.Lamson James R.Swanger Charles F.Becker Robert D.Sharp Matthew C.McDermott David W.Belin Mark McCormick Sue Luett ohann Seitz Sheila K.Tipton Garth D.Adams Silvia J.Hansell (1928—1999) Steven E.Zumbach Jeremy C.Sharpe Mark E.Weinhardt Michael R.Reck Michael B.Abbott Roger T.Stetson Thomas L.Flynn John T.Seitz Dennis P.Ogden Wayne E.Reames Nathanael J.Blake (1953—2004) Jon L.Staudt Robert A.Mullen Edward M.Mansfield S.Christian Nelson Tricia A.Johnston James L.Krambeck Patricia A.Shoff Stephen R.Eckley Holly M.Logan Richard W.Lozier,Jr. William D.Bartine David Swinton Laura E.Hamady Of Counsel James V.Sarcone,Jr. Quentin R.Boyken Margaret C.Callahan Lance W.Lange Danielle M.Shelton Charles F.Becker Direct Dial: (515)283-4609 Direct Fax: (515)558-0609 E-mail: cfbecker@belinlaw.com November 22, 2005 The Honorable Ted Tedesco and Ames City Council 515 Clark Avenue Ames, Iowa 50010 Re: Construction Site Erosion and Sediment Control Ordinance Dear Mayor Tedesco & City Council Members: The Developer's Council of the Homebuilders Association is providing the following comments regarding the draft COSESCO Ordinance currently under consideration by the City of Ames. Because the Ordinance appears to be substantially similar to the Model Ordinance proposed by the Iowa Association of Municipal Utilities and since the Developer's Council has made extensive presentations concerning its objections to that Model Ordinance, the Council attaches hereto its objections previously stated to the Model Ordinance made to some of the other central Iowa MS4 cities. See Attachment A. In addition to those objections, the Developer's Council will address each of the provisions of the draft Ames Ordinance. Further, Attachment B sets out the proposed ordinance which the City of Altoona has under consideration. We request that Ames consider adoption of an ordinance similar to that of Altoona. SECTION 5A.1 —FINDINGS This section provides that the applicant must obtain a separate "City COSESCO Permit." A separate permit for erosion control is not required by any state or federal rule, regulation or statute. It is unnecessary and a waste of city resources as well as resources of the regulated community to set up an entirely new system of permitting when such a mandate is not required. The Developer's Council would ask that the City consider deleting the requirement for issuing a separate COSESCO permit. 666 Walnut Street,Suite 2000,Des Moines,Iowa 50309-3989 (515)243-7100 www.belinlaw.com 4 November 22, 2005 Page 2 SECTION 5A.2—APPLICATION PROCEDURE General — Again, this section contemplates the issuance of a separate permit for erosion control though such requirement is not found in the state or federal regulations and the Developer's Council would request that such a requirement not be unnecessarily imposed on the regulated community. Paragraph 5(E) — This provision requires that the permit holder certify that "the SWPPP complies with all requirements of this ordinance and the applicant's NPDES General Permit No. 2." The federal and state law already provides for a form of certification that must be signed. The Developer's Council would request that the certification provided under state and federal law be used in lieu of the requirement found in Paragraph 5(E). Paragraph 6—The effect of Paragraph 6(a)— 6(q) are to add requirements that are not required by either state or federal laws. The extent of these additions are staggering in scope and will unnecessarily add expense without adding protection. Moreover, the City's failure to properly enforce them will actually increase potential liability rather than add protection to the City. The Developer's Council requests that these provisions be stricken in their entirety, as was done in Altoona. Turning to specific terms of Section 6, the provisions of this paragraph include a requirement to comply with SUDAS and RUSLE H. The Developer's Council believes that the regulated community should be allowed to satisfy the terms of Permit No. 2 and the SWPPP requirements with those methodologies which have been approved by the state and federal regulatory agencies. While SUDAS and RUSLE II may be used by the regulated community, neither the state nor federal regulations require the use of these tools. In effect, the Ordinance not only compels the regulated community to comply with the requirements of Permit No. 2, but these provisions also limit the number of options available to the regulated community on how that compliance will be accomplished even though the state and federal regulatory agencies do not limit the options. The impositions of these requirements will add substantially to the cost of compliance without adding any greater protection to either the city or the regulated community and the Developer's Council would ask that they be stricken. Paragraph 6(d) — This paragraph requires the covering of all stockpiles of soil or other materials. Again, this type of micro-managing of the method of complying with the federal and state requirements is neither necessary nor reasonable and the Developer's Council would request that this paragraph be stricken. Paragraph 6(g) — This requires that all disturbed sites be permanently stabilized with 70% perennial cover. This is a good example of a provision that is already contained in the Permit No. 2 requirements and is therefore unnecessary in these November 22, 2005 Page 3 ordinances. Inclusion of this paragraph in the Ordinance will create confusion and possible disagreement on its interpretation. Therefore, the Developer's Council would ask that it be stricken. Paragraph 6(h) — This refers to special rules relating to "sensitive environmental areas." There is no definition of that term and is not required under state or federal regulations. The Developer's Council would ask that this provision be stricken. Paragraph 6(i through p) — These provisions again reiterate the requirements of Permit No. 2 and therefore would only present an opportunity for confusion and dispute. Because these matters are already covered as part of requirements of Permit No. 2, the Developer's Council would ask that they be stricken from this ordinance. Paragraph 6(q) — This provision requires certain activities "when working near sensitive waters." Again, "sensitive waters" is an undefined term that will cause confusion and is not mandated by state or federal regulations. Further, the requirement that there be permanent cover within three days and/or seven days as set out in that paragraph are in violation of state and federal rules. Likewise, the requirement that a temporary sediment basin is required for an area having five or more acres of disturbed land is contrary to the provisions of Permit No. 2. The provisions of Paragraph 6(q) would be extremely expensive to implement and will undoubtedly result in significant litigation for interpretation purposes. Since the requirements are clearly not required by state or federal regulation, the Developer's Council would request that this paragraph be stricken. Paragraph 9 — This paragraph, among other things, requires that a transferee must "agree to fulfill all the obligations of the SWPPP." State law does not impose such a requirement and therefore this provision is contrary to state law and would be void. For that reason, this portion of Paragraph 9 should be deleted. SECTION 5A.3 —INSPECTION PROCEDURES Paragraph 2 — It appears that this paragraph is intended as the first inspection conducted by the City. If this is its intent, the paragraph should clearly state this intention. SECTION 5A.4—MONITORING PROCEDURES Paragraph 1 — This paragraph attempts to impose an "absolute duty" on the applicant to monitor the site conditions and to notify an enforcement officer when the applicant "knows or should know" that a change of circumstances imposes a risk of storm water discharge. This standard is virtually unworkable and the Developer's Council would request that the paragraph be deleted. November 22, 2005 Page 4 Paragraph 3 — This paragraph apparently mandates that inspections be conducted after any third party complaint. If the cost of inspections rests with the regulated community, then this paragraph should have a provision for waiving such cost if, in fact, there are no significant items of non-compliance identified through the inspection. SECTION 5A.6—PERFORMANCE BOND This section sets out the requirement of a performance bond for each single or twin family home, whichever is greater. There is absolutely no requirement under state or federal law that a bond be required for this activity and the imposition of such a requirement is unduly burdensome, will substantially increase costs and will not provide any significant protection for the City. Therefore, the Developer's Council requests that this section be deleted. SECTION 8 - APPEAL Paragraph I(A) — This provision requires an appeal to be filed in writing with the City Clerk within five business days of the decision or enforcement action. This time period is unrealistic and a denial of due process for the regulated community. At a minimum, this provision should allow an appeal within twenty business day of being served with the decision or enforcement action. The Developer's Council strongly believes that the proposed ordinance is unnecessarily burdensome on the regulated community. For more than ten years, development has occurred under the existing state and federal requirements with no detrimental effects. Though the City is required to become involved in erosion control, there is no requirement that it substantially add to the provisions of state and federal laws which are in place and have been effective for so long or to micromanage the activities of the regulated community. The Draft Ordinance adds an unnecessary layer of regulation which will be expensive not only for the regulated community and the purchasers of new homes and commercial buildings, but also to the City. The Developer's Council requests that the City consider using the proposed Draft Ordinance (Attachment C) developed by the Developer's Council which complies with all requirements of state and federal law while not imposing unnecessary and expensive provisions on both the regulated community and the City. Sincerely, .3 kThmas CCharles F. Becker uc , Developer's Council of Homebuilders Attorney for Developer's Council of Association Homebuilders Association Attachments d:\h0908\1tr-ames mayor&city council.doc e , BELIN LAMSON McCORMICK ZUMBACH FLYNN A PROFESSIONAL CORPORATION ATTORNEYS AT LAW effrey E.Lamson James R.Swanger Charles F.Becker Robert D.Sharp Matthew C.McDermott David W.Belin stark McCormick Sue Luettjohann Seitz Sheila K.Tipton Garth D.Adams Silvia 1.Hansell (1928-1999) eleven E.Zumbach Jeremy C.Sharpe Mario E.Weinhardt Michael R.Reck Tricia A.Johnston Roger T.Stetson homas L.Flynn John T.Seitz Dennis P.Ogden Wayne E.Reames (1953-2004) on L.Staudt Robert A.Mullen Edward M.Mansfield S.Christian Nelson Of Counsel ames L.Krambeck Patricia A.Shoff Stephen R.Eckley Holly M.Logan Danielle M.Shelton :ichard W.Lozier,Jr. William D.Bartine David Swinton Laura E.Hamady ames V.Sarcone Jr Quentin R Boyken Margaret C Callahan Lance W.Lange Charles F.Becker Direct Dial: (515)2834609 Direct Fax_ (515)558-0609 E-mail: cfbeckcr@belinlaw.com April 25, 2005 VIA FEDERAL. EXPRESS Mr. Tim Burget, Mayor 407—8th Street S. C. Altoona, Iowa 50009 Dear Mayor Burget: As you are aware, the City of Altoona is required to develop an ordinance to address storm water discharge from construction sites that are within the City's borders. Although this adds a third layer of review for construction sites, it is required by both state and federal law. Two of the groups most directly affected by this mandate are developers and home builders. As such, the Developer's Council of the Home Builders Association of Greater Des Moines has asked that I provide you with our thoughts concerning the appropriate ordinance terms. The requirements of your MS4 Permit with the Iowa Department of Natural Resources sets out exactly what must be included in your storm water ordinance. If you review that permit, you will see that: l. It does not require the City to create its own storm water permitting process; 2. It does not require the City to add any provision to the Storm Water Pollution Prevention Plan; 3. It does not require that a Storm Water Pollution Prevention Plan be prepared by a professional engineer; 4. It does not require the City to mandate a performance bond. Your MS4 Permit does provide that: I. The City require compliance with the Iowa Department of Natural Resource's Storm Water General Permit No. 2; 2. The City inspect the sites on a periodic basis(the specific period is set out in your MS4); 666 Walnut Street,Suite 2000,Des Moines,Iowa 50309-3989 (515)243-7100 www.belinlaw.com AmCiPf T A April 25, 2005 Page 2 3. The City address waste at the construction sites that may cause adverse impact to water quality; 4. The City review and approve a site plan and pollution prevention plan prior to issuance of any permit for the site; 5. The City have the authority to enter private property for purposes of compliance inspections and penalties for non-compliance; 6. The City have the authority to issue an order to terminate activities due to failure to implement or maintain pollution control BMPs. An ordinance that satisfies these six requirements will satisfy the City's MS4 permit. I am attaching a draft ordinance that is intended to satisfy the City's MS4 permit requirements. It does so in a manner that we believe is fair to the regulated community, protects the environment and is not unduly difficult to implement. Remember that the activities of the City will be in addition to inspections and enforcement activities done by EPA, DNR and the individual developer or builder(which must inspect weekly). The model ordinance simply adds the municipal oversight required by DNR's rules. You may be aware that the Iowa Association of Municipal Utilities (IAMU has also created a draft model ordinance. Their model was created with no involvement or participation by homebuilders or developers. We believe that their draft goes well beyond anything contemplated by the MS4 requirements, would be difficult to implement and maintain, and would be prohibitively expensive to enforce. I have included the Association's position on IAMU's model ordinance as an attachment. We would request that IAMU's model ordinance, or any other proposal that adds more costly requirements to an already heavily regulated industry, be rejected by the City. We trust that the City will give serious consideration to our proposal and I would welcome the opportunity to answer any questions that your City Engineer, City Planner, or City Council might want to raise. Further, the Developer's Council would ask to be notified of any meetings conducted by the City Council or Planning and Zoning Commission relating to the ordinance. We would appreciate the opportunity to present our proposal for consideration and to respond to any questions that might arise. Sincerely, G C"q'/i ", Charles F. Becker Chuck Thomas Attorney for the HBA Developer's Council Chair, HBA Developer's Council Attachments cc: Jeff Mark, City Administrator dAh0908Utr-mayor burgadoc RESPONSE OF THE DEVELOPERS COUNCIL OF THE HOME BUILDERS ASSOCIATION OF GREATER DES MOINES TO THE MODEL ORDINANCE PROPOSED BY IAMU The following are comments to the Model Ordinance being proposed by the Iowa Association of Municipal Utilities (IAMU) for adoption by the City relating to construction site erosion and sediment control. It should be noted that the Developer's Council was not consulted on the drafting of the IAMU Model Ordinance. The comments relate to the sections as found in the Model Ordinance: Section 1. Findings This section sets out the requirement of a COSESCO Permit for all construction sites and notes that the City will pay for the program by fees imposed on the owners of property which are made subject to the program by virtue of state and federal law. There is absolutely no state or federal requirement that a city create its own permit or permitting system for storm water compliance and such a system should not be adopted. Federal and state law already require permitting. The existing system, developed by experts on the federal and state level, has been extremely effective. An additional layer of permitting by the City is unnecessary, expensive, time-consuming and will discourage construction. Section 2. Application Procedure for Obtaining and Maintaining a City Construction Site Erosion and Sediment Control (COSESCO) Permit This section sets out the procedure to obtain the COSESCO permit. Again, the proposal for a city permitting system should be rejected. While the MS4 Permit that the City has with the state does allow the City to review and approve the developer's SWPPP, there is no requirement that the terms of the SWPPP (as currently mandated under state and federal law) be increased. Paragraph 2.6 of the Proposed Ordinance provides optional Storm Water Pollution Prevention Plan (SWPPP) requirements which are above and beyond those requirements currently required under either federal or state law or are redundant of requirements already found in those laws. Current regulations have been very effective in reducing runoff problems. There has been no showing that these additional provisions would do anything more than add greatly to the cost of storm water compliance. The requirements for the COSESCO Permit SWPPP should be identical with those requirements which are already being fulfilled by the applicants pursuant to the requirements of General Permit No. 2. This will result in less administration, smaller staffing requirements, less work and less expense with no loss of effectiveness. Paragraph 2.10 provides that the City will issue a City COSESCO permit "upon receipt of an application" or will file a bill of particulars identifying non-compliant elements. There is no time limit placed on this requirement and the delay inherent in such a system will cause a great deal of additional expense. While the City must be given an opportunity to review the applicant's SWPPP, this does not need to be part of an expensive and time-consuming city permit program. Section 3. Inspection Procedures for City COSESCO Permits This section addresses the inspection procedures. Again, the requirements are in addition to the already extensive inspection requirements found under state and federal law. Further, since there is no limit to the number of inspections which can be conducted by the city at any given site, and since later provisions require that the applicant pay for each inspection, the provision is ripe for abuse and discrimination. While some fee for inspection may be necessary, it must have reasonable limitations. The MS4 permit for the City requires only that sites be inspected quarterly and after each one-half inch rainfall. Section 3.3 provides that construction shall not occur on any site that has identified conditions of non-compliance. This provision, as it stands, is extremely vague and burdensome. Does the inspector have the right to immediately shut down all activity at the site if he/she sees a single example of non-compliance? What due process rights do the developers and builders have to immediately challenge such an onerous provision which could have a devastating impact on not just the developer but also all suppliers? The Notice of Violation system currently used by the Iowa Department of Natural Resources has been an effective deterrent to non-compliance and should be used as the model for any city inspections. Section 4. Monitoring Procedures for City COSESCO Permits This provision sets out the applicant's ongoing duties under the permit. Section 4.1 states that an applicant "has an absolute duty to monitor site conditions and to report to the enforcement officer any change of circumstances or site conditions which the applicant knows or should know pose a risk of storm water discharge in a manner inconsistent with applicant's SWPPP." What change of circumstances or site conditions would satisfy this requirement? Would a heavy rainfall "pose a risk of storm water discharge in a manner inconsistent with applicant's SWPPP?" When does the applicant have to notify the enforcement officer? When is it that an applicant "should know" that a condition or circumstance poses a risk? This provision is not found (in this form) under any state or federal provision. Rather, the applicant is required to ensure that the SWPPP remains current and that inspections be conducted every seven days and after a .5 inch rainfall. Both the federal and state governments have deemed these protections sufficient and they should also be deemed sufficient by the City. -2- Section 5. Enforcement An enforcement mechanism is, of course, necessary. Use of the "municipal infractions" provisions from the Iowa Code would seem to be a good method of allowing for such enforcement so long as the applicant has the opportunity to address and resolve any claimed violation quickly. Section 6. Performance Bond or Cash Security This section purports to require that the applicant post security "for compliance with all requirements imposed by the State NPDES General Permit No. 2 and the City COSESCO Permit as well as necessary remedial work resulting from violations of any provision of this ordinance." This provision, not required under any rule or law, is unwarranted, will stifle construction, and will significantly increase costs. Section 7. Appeal This section attempts to provide due process for an applicant who is accused of a violation. It provides that any administrative decisions made by the city staff and enforcement actions of the enforcement officer may be appealed by the applicant to the city council. The appeal must be in writing and filed with the city clerk within five business days of the decision or enforcement action. As set out, this appeal procedure is onerous and provides little due process. First, any appeal should be to the Board of Adjustment rather than the City Council (who acts legislatively, not judicially). Second, a time period of five business days to file a written appeal "which specifies in detail the action appealed from, the errors allegedly made by the enforcement officer, a written summary of all oral and written testimony the applicant intends to introduce at the hearing, including the names and addresses of all witnesses the applicant intends to call, copies of all documents the applicant intends to introduce at the hearing, and the relief requested" is virtually impossible. Further, if activity at the site is prohibited during the appeal process, the cost of such a denial would be extreme. The appeal process should be simplified, provisions should set out for exactly when a stop- work order would be allowed and an expedited settlement procedure should be promulgated to address the violations that do not cause any environmental harm. DEFINITIONS The definitions attached to the IAMU Model Ordinance go beyond the definitions set out under state and federal law and some (such as "sensitive waters") are non-existent under those laws. We believe that, to the extent definitions are necessary, they should be identical to those already defined under state and federal storm water rules and regulations. -3- GENERAL COMMENTS The Construction Erosion and Sediment Control Model Ordinance, as written by IAMU, adds a third layer of regulation to an already over-burdened regulatory scheme. While federal law does require that cities instigate some regulation, it does not require that the City's regulation be any more onerous than the existing state and federal regulatory scheme. The IAMU Model Ordinance will dramatically add to the time for completion of every project and will have the affect of increasing the construction costs, while delaying the completion dates, for virtually no additional environmental protection over that which currently is required under both state and federal law. Rather than adding a large, expensive and cumbersome bureaucratic process to the existing state and federal regulatory scheme, it is suggested that the City look for ways to use the existing regulatory scheme as part of its own process and minimize those regulatory requirements which will add yet another layer of expense and delay to the development process. On behalf of the Association, I would ask that the Developer's Council be involved in future discussions relating to the storm water ordinance. dAh090Mmenw-home builders-l.doc -4- 11/18/05 ORDINANCE NO. AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE CITY OF ALTOONA, IOWA, 2004, BY ADDING A NEW ORDINANCE CHAPTER 148, CONSTRUCTION SITE EROSION AND SEDIMENT CONTROL BE IT ORDAINED by the City Council of the City of Altoona, Iowa: SECTION 1. PARAGRAPHS ADDED. The Code of Ordinances of the City of Altoona, Iowa, 2004, is hereby amended adding: CHAPTER 148 CONSTRUCTION SITE EROSION AND SEDIMENT CONTROL 148.01 FINDINGS: 1. The U.S.EPA's National Pollutant Discharge Elimination System("NPDES") permit program(Program) administered by the Iowa Department of Natural Resources ("IDNR")requires that cities meeting certain demographic and environmental impact criteria obtain from the IDNR an NPDES permit for the discharge of storm water from a Municipal Separate Storm Sewer System (MS4) (MS4 Permit). The City of Altoona(City) is subject to the Program and is required to obtain, and has obtained, an MS4 Permit; the City's MS4 Permit is on file at the office of the city clerk and is available for public inspection during regular office hours. 2. The Program requires certain individuals engaged in construction activities (applicant or applicants)to submit an application to the IDNR for a State NPDES General Permit#2. Notwithstanding any provision of this ordinance, every applicant bears final and complete responsibility for compliance with a State NPDES General Permit#2 and a City COSESCO Permit and any other requirement of state or federal law or administrative rule. 3. As a condition of the City's MS4 Permit, the City is obliged to undertake responsibility for administration and enforcement of the Program by adopting a CONSTRUCTION SITE EROSION AND SEDIMENT CONTROL (COSESCO) ordinance designed to achieve the following objectives: A. Any person, firm, sole proprietorship, partnership, corporation, state agency or political subdivision("applicant") required by law or administrative rule to apply to the IDNR for a State NPDES General Permit#2 shall also be required to obtain from the City a CONSTRUCTION SITE EROSION AND SEDIMENT CONTROL permit(City COSESCO Permit) in addition to and not in lieu of the State NPDES General Permit#2; and B. The City shall have responsibility for inspection, monitoring and enforcement procedures to promote applicants' compliance with State NPDES General Permits#2 and City COSESCO Permits. 1 ATTAC MENT B 11/18/05 4. No state or federal funds have been made available to assist the City in administering and enforcing the Program. Accordingly,the City shall fund its application, inspection, monitoring and enforcement responsibilities entirely by fees imposed on the owners of properties which are made subject to the Program by virtue of state and federal law, and/or other sources of funding established by a separate ordinance. 5. Terms used in this ordinance shall have the meanings specified in the Program. SECTION 2. APPLICATION PROCEDURE FOR OBTAINING AND MAINTAINING A CITY CONSTRUCTION SITE EROSION AND SEDIMENT CONTROL (COSESCO) PERMIT 1. All persons required by law or administrative rule to obtain a State NPDES General Permit#2 from the IDNR are required to obtain a City COSESCO Permit. 2. Applications for City COSESCO Permits shall be made on forms approved by the City that may be obtained from the Building Department. 3. An applicant for a City COSESCO Permit shall pay fees as follows: A. A fee at the time of application in the amount of$150 plus$20 per acre for sites over one acre. B. For each inspection required by this ordinance,the applicant shall pay an inspection fee in the amount of$45 per hour. C. Failure of the applicant to pay an inspection fee within thirty(30) days of billing shall constitute a violation of this ordinance. 4. An applicant in possession of a State NPDES General Permit#2 issued by the IDNR shall immediately submit to the City three(3) full copies of the materials described below as a basis for the City to determine whether to issue a City COSESCO Permit: A. applicant's plans, specifications and supporting materials previously submitted to the IDNR in support of applicant's application for the State NPDES General Permit#2; B. applicant's authorizations issued pursuant to applicant's State NPDES General Permit#2; and C. a Stormwater Pollution Prevention Plan(SWPPP)prepared in accordance with this ordinance. 5. Every SWPPP submitted to the City in support of an application for a City COSESCO Permit: A. shall comply with all current minimum mandatory requirements for SWPPPs promulgated by the IDNR in connection with issuance of a State NPDES General Permit#2; and B. shall, if the applicant is required by law to file a Joint Application Form, PROTECTING IOWA WATERS, IOWA DEPARTMENT OF NATURAL RESOURCES AND U.S. ARMY CORPS OF ENGINEERS, comply with all mandatory minimum requirements pertaining to such applications; and 2 11/18/05 C. shall comply with all other applicable state or federal permit requirements in existence at the time of application; and D. shall be prepared by a professional engineer licensed in the State of Iowa or landscape architect or a professional in erosion and sediment control or a representative of the local Soil and Water Conservation District,credentialed in a manner acceptable to the City; and E. shall include within the SWPPP a signed and dated certification by the NPDES General Permit#2 permit holder that the SWPPP complies with all requirements of this ordinance and the applicant's NPDES General Permit#2. 6. Issuance by the City of a City COSESCO Permit shall be a condition precedent for the issuance of preliminary plat, site plan or City building permit approval. 7. For so long as a construction site is subject to a State NPDES General Permit#2 or a City COSESCO Permit, the applicant shall provide the City with current information as follows: A. The name, address and telephone number of the person on site designated by the owner who is knowledgeable and experienced in erosion and sediment control and who will oversee compliance with the State NPDES General Permit#2 and the City COSESCO Permit; B. The name(s), address(es)and telephone number(s) of the contractor(s) and/or subcontractors(s)that will implement each erosion and sediment control measure identified in the SWPPP. C. Applicant's failure to provide current information shall constitute a violation of this ordinance. 8. Developers can transfer State NPDES General Permit#2 and the City COSESCO Permit responsibility to homebuilders, new lot owners, contractors and subcontractors. A copy of the transfer document shall be provided to the City. Absent such written confirmation of transfer of obligations, the developer remains responsible for compliance on any lot that has been sold. 9. Homebuilders, new lot owners, contractors and subcontractors which are co-permittees under an existing SWPPP shall provide written documentation indicating they are co-permittees including signatures by both the co-permittee and developer. 10. Upon receipt of an application for a City COSESCO Permit,the City shall either find that the application complies with this ordinance and issue a City COSESCO Permit in accordance with this ordinance, or that the application fails to comply with this ordinance, in which case the City shall provide a bill of particulars identifying non-compliant elements of the application. It. Prior to the issuance of the building permit, the lot owner shall provide written certification regarding their responsibility for sediment and erosion control on the property as outlined in General Permit#2 and the SWPPP. 3 11/18/05 SECTION 3. INSPECTION PROCEDURES FOR CITY COSESCO PERMITS. l. All inspections required under this ordinance shall be conducted by the Community Services Director or designee,hereinafter referred to as the "enforcement officer." Inspections by the enforcement officer may be scheduled,or unannounced. 2. Any applicant that is subject to the terms of the COSESCO shall allow the City or an authorized representative of the City, upon the presentation of proper identification, to enter upon applicant's private property for inspection purposes. 3. Applicant shall notify the City when all measures required by applicant's SWPPP have been accomplished on-site,whereupon the City shall conduct an initial inspection for the purpose of determining compliance with this ordinance, and shall within a reasonable time thereafter report to the applicant either that compliance appears to have been achieved,or that compliance has not been achieved, in which case the City shall provide a bill of particulars identifying the conditions of non-compliance. The applicant shall immediately commence corrective action and shall complete such corrective action within forty-eight(48) hours of receiving the City's bill of particulars. For good cause shown, the City may extend the deadline for taking corrective action. Failure to take corrective action in a timely manner shall constitute a violation of this ordinance. 4. Construction shall not occur on the site at any time when the City has identified conditions of non-compliance. 5. Construction activities undertaken by an applicant prior to resolution of all discrepancies specified in the bill of particulars shall constitute a violation of this ordinance. 6. The City shall not be responsible for the direct or indirect consequences to the applicant or to third-parties for non-compliant conditions undetected by inspection. SECTION 4. STOP WORK ORDER I. Authority. Whenever the enforcement officer finds any work regulated by this ordinance being performed in a manner either contrary to the provisions of this ordinance or dangerous or unsafe,the enforcement officer is authorized to issue a stop work order. 2. Issuance. The stop work order shall be in writing and shall be given to the owner of the property involved, or to the owner's agent,or to the person doing the work. Upon issuance of a stop work order,the cited work shall immediately cease. The stop work order shall state the reason for the order, and the conditions under which the cited work will be permitted to resume. 3. Unlawful continuance. Any person who shall continue any work after having been served with a stop work order,except such work as the person is directed to perform to remove a violation or unsafe condition,shall be subject to penalties as stated in this ordinance. 4 11/18/05 SECTION 5. MONITORING PROCEDURES FOR CITY COSESCO PERMITS 1. At a minimum, the enforcement officer will perform quarterly inspections. The quarterly inspections will be performed until the City receives a copy of the Notice of Discontinuation by the Iowa Department of Natural Resources for NPDES General Permit#2. 2. Any third party may also report to the City site conditions which the third party reasonably believes pose a risk of stormwater discharge in a manner inconsistent with applicant's SWPPP, State NPDES General Permit#2 and/or City COSESCO Permit. Permit holders found in non-compliance will be charged at a rate of$45 per hour for the additional inspection. If the permit holder is found in compliance,the inspection fee will be waived. 3. Upon receiving a report pursuant to the previous subsections,the enforcement officer shall conduct an inspection of the site as soon as reasonably possible and thereafter shall provide the applicant with a bill of particulars identifying the conditions of non-compliance. The applicant shall immediately commence corrective action and shall complete such corrective action within forty-eight(48)hours of receiving the City's bill of particulars. For good cause shown,the City may extend the deadline for completing corrective action. Failure to take corrective action in a timely manner shall constitute a violation of this ordinance, whereupon the enforcement officer shall immediately commence enforcement actions specified in SECTION 6 below. 4. Unless a report is made to the enforcement officer pursuant to the previous subsections,the enforcement officer shall conduct at least one unannounced inspection during the course of construction to monitor compliance with the State NPDES General Permit#2 and the City COSESCO Permit. If the inspection discloses any significant non-compliance, the enforcement officer shall provide the applicant with a bill of particulars identifying the conditions of non-compliance. The applicant shall immediately commence corrective action and shall complete such corrective action within forty- eight(48)hours of receiving the City's bill of particulars. For good cause shown,the City may extend the deadline for completing corrective action. Failure to take corrective action in a timely manner shall constitute a violation of this ordinance,whereupon the enforcement officer shall immediately commence enforcement actions specified in SECTION 6 below. 5. The City shall not be responsible for the direct or indirect consequences to the applicant or to third-parties for non-compliant conditions undetected by inspection. SECTION 6. ENFORCEMENT 1. Violation of any provision of this ordinance may be enforced by civil action including an action for injunctive relief. In any civil enforcement action, administrative or judicial, the City shall be entitled to recover its attorneys' fees and costs from a person who is determined by a court of competent jurisdiction to have violated this ordinance. 5 11/18/05 2. Violation of any provision of this ordinance may also be enforced as a municipal infraction within the meaning of§364.22,pursuant to the City's municipal infraction ordinance. 3. Enforcement pursuant to this section shall be undertaken by the enforcement officer upon the advice and consent of the City Attorney. SECTION 7. PERFORMANCE BOND 1. In addition to the application for a City COSESCO Permit, the applicant may be required to post security for compliance with all requirements imposed by the State NPDES General Permit#2 and the City COSESCO Permit in such an amount as the City may deem necessary. 2. If the final plat is approved prior to the installation of public improvements, in accordance with Chapter 175.05.5A, a performance bond shall be required to cover the costs of the sediment and erosion control measures for the plat. 3. Acceptable forms of Performance Security include the following: A. Performance Bonds; B. Surety Bonds 4. The application form signed by the applicant for a City COSESCO Permit shall include the following commitment by the applicant: "In addition to the performance security posted with this application,the undersigned applicant hereby agrees to defend, indemnify and hold the City harmless from any and all claims,damages or suits arising directly or indirectly out of any act of commission or omission by the applicant,or any employee,agent, assign or contractor or subcontractor of the applicant, in connection with applicant's State NPDES General Permit#2 and/or City COSESCO Permit. 5. Upon filing and acknowledgement of the Notice of Discontinuation by the Iowa Department of Natural Resources for NDPES General Permit#2 and a final inspection by the City,the bond or any remaining funds shall be returned. SECTION 8. APPEAL 1. Administrative decisions by city staff and enforcement actions of the enforcement officer may be appealed by the applicant to the city council pursuant to the following rules: A. The appeal must be filed in writing with the city clerk within twenty (20)business days of the decision or enforcement action. B. The written appeal shall specify in detail the action appealed from, the errors allegedly made by the enforcement officer giving rise to the appeal, a written summary of all oral and written testimony the applicant intends to introduce at the hearing, including the names and addresses of all witnesses the applicant intends to call,copies of all documents the applicant intends to introduce at the hearing,and the relief requested. 6 11/18/05 C. The enforcement officer shall specify in writing the reasons for the enforcement action,a written summary of all oral and written testimony the enforcement officer intends to introduce at the hearing, including the names and addresses of all witnesses the enforcement officer intends to call,and copies of all documents the enforcement officer intends to introduce at the hearing. D. The city clerk shall notify the applicant and the enforcement officer by ordinary mail, and shall give public notice in accordance with Chapter 21, Iowa Code,of the date,time and place for the regular or special meeting of the city council at which the hearing on the appeal shall occur. The hearing shall be scheduled for a date not less than four(4)nor more than twenty(20)days after the filing of the appeal. The rules of evidence and procedure,and the standard of proof to be applied,shall be the same as provided by Chapter 17A, Code of Iowa. The applicant may be represented by counsel at the applicant's expense.The enforcement officer may be represented by the city attorney or by an attorney designated by the city council at City expense. 2. The decision of the city council shall be rendered in writing and may be appealed to the Iowa District Court. Section 2. Repealer Clause. All ordinances or parts of ordinances in conflict herewith are hereby repealed. Section 3. Severability Clause. If any section,provision or part of this ordinance shall be adjudged invalid or unconstitutional,such adjudication shall not affect the validity of the ordinance as a whole or any section, provision or part thereof not adjudged invalid or unconstitutional. 7 11/18/05 SECTION 4. WHEN EFFECTIVE. This ordinance shall be in effect from and after its final passage, approval and publication as provided by law. Passed by the Council the_day of , and approved this_day of ATTEST: Timothy J. Burget Mayor Randy Pierce, City Clerk First Reading: Second Reading: Third Reading: Council Vote: Ayes Nays Absent Abstain Conklin Davenport Franklin Riding Warren 8 ORDINANCE NO. AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE CITY OF ALTOONA, IOWA, 2004, BY ADDING A SECTION TO CHAPTER 160 BE IT ORDAINED by the City Council of the City of Altoona, Iowa: SECTION 1. PARAGRAPHS MODIFIED. The Code of Ordinances of the City of Altoona, Iowa, 2004, is hereby amended by: Adding a new section, Chapter 160.30: "Chapter 160.30 STORMWATER RESPONSIBILITY. Any lot owner constructing a dwelling required to have or be a part of a NPDES General Permit#2 issued by the Iowa Department of Natural Resources shall provide to the Building Department a signed statement verifying their responsibility for the management of storm water on the lot in accordance with Chapter 148." SECTION 2. REPEALER. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. SECTION 3. SEVERABILITY CLAUSE. If any section, provision or part of this ordinance shall be adjudged invalid or unconstitutional such adjudication shall not affect the validity of the ordinance as a whole or any section, provision or part thereof not adjudged invalid or unconstitutional. SECTION 4. WHEN EFFECTIVE. This ordinance shall be in effect from and after its final passage, approval and publication as provided by law. Passed by the Council the_day of , and approved this day of Timothy J. Burget Mayor ATTEST: Randy Pierce, City Clerk First Reading: Second Reading: Third Reading: Council Vote- Ayes Nays Absent Abstain Conklin Davenport Franklin Riding Warren ORDINANCE NO. AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE CITY OF ALTOONA, IOWA,2004, BY AMENDING CHAPTER 175 BE IT ORDAINED by the City Council of the City of Altoona, Iowa: SECTION 1. PARAGRAPHS MODIFIED. The Code of Ordinances of the City of Altoona, Iowa, 2004, is hereby amended by: Amending Chapter 175.05.5A: 5. Approval of Final Plat and Final Acceptance of Improvements. A. Construction of Improvement or Posting of Bond. Before the Council approves the final plat, all of the foregoing improvements shall be constructed and accepted by formal resolution of the Council. Before passage of said resolution of acceptance, the City Engineer shall report that said improvements meet all City specifications and ordinances or other requirements, and all agreements between the subdivider and the City; and the City Attorney shall report that the subdivision owner has filed in proper form a maintenance bond (or bonds) to cover all construction being dedicated to the City. Maintenance bonds shall be in the name of contractors who have done the work. Maintenance bonds shall be in effect from passage of resolution of acceptance by the Council, then for the following number of years: (1) Concrete paving..........................................4 years (2) Storm sewers and appurtenances ...............4 years (3) Sanitary sewers and appurtenances ...........4 years (4) Water mains and appurtenances ................4 years This requirement for the construction of all improvements may be waived if the subdivider will post a performance bond or certified check with the Council guaranteeing that said improvements will be constructed within a period of one (1)year from final acceptance of the plat. The performance bond shall include the costs of sediment and erosion control measures for the plat. However,if a performance bond is posted, final acceptance of the plat will not constitute final acceptance by the City of any improvements to be constructed. Improvements will be accepted only after their construction has been completed all in accordance with the rules above outlined. No maintenance work will be done by the City and no public funds will be expended in the subdivision until such improvements have been completed and accepted by the City. SECTION 2. REPEALER. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. SECTION 3. SEVERABILITY CLAUSE. If any section,provision or part of this ordinance shall be adjudged invalid or unconstitutional such adjudication shall not affect the validity of the ordinance as a whole or any section, provision or part thereof not adjudged invalid or unconstitutional. t SECTION 4. WHEN EFFECTIVE. This ordinance shall be in effect from and after its final passage, approval and publication as provided by law. Passed by the Council the_day of , and approved this_day of Timothy J. Burget Mayor ATTEST: Randy Pierce, City Clerk First Reading: Second Reading: Third Reading: Council Vote• Ayes Nays Absent Abstain Conklin Davenport Franklin Riding Warren CONSTRUCTION SITE EROSION AND SEDIMENT CONTROL (COSESCO) MODEL ORDINANCE CHAPTER CONSTRUCTION SITE EROSION AND SEDIMENT CONTROL. SECTION 1. FINDINGS 1.1. The U.S. EPA's National Pollutant Discharge Elimination System ("NPDES") permit program (Program) administered by the Iowa Department of Natural Resources ("IDNR") requires that cities meeting certain demographic and environmental impact criteria obtain from the IDNR an NPDES permit for the discharge of storm water from a Municipal Separate Storm Sewer System (MS4) (MS4 Permit). The City of (City) is subject to the Program and is required to obtain, and has obtained, an MS4 Permit. The City's MS4 Permit is on file at the office of the city clerk and is available for public inspection during regular office hours. 1.2. The Program requires certain individuals engaged in construction activities (applicant or applicants) to submit an application to the IDNR for a State NPDES General Permit #2. Notwithstanding any provision of this ordinance, every applicant bears final and complete responsibility for compliance with a State NPDES General Permit #2 and any other requirement of state or federal law or administrative rule. 1.3. As a condition of the City's MS4 Permit, the City is obliged to undertake responsibility for inspections, monitoring and enforcement of the Program by adopting a CONSTRUCTION SITE EROSION AND SEDIMENT CONTROL ORDINANCE(COSESCO) designed to achieve the following objectives: 1.3.1. Any person, firm, sole proprietorship, partnership, corporation, state agency or political subdivision ("applicant") required by law or administrative rule to apply to the IDNR for a State NPDES General Permit#2 shall be subject to the terms of the COSESCO; and 1.3.2. The City shall have responsibility for inspection, monitoring and enforcement procedures to promote applicants' compliance with State NPDES General Permits#2. 1.4. No state or federal funds have been made available to assist the City with inspections, monitoring and/or enforcing the Program. Accordingly, the City shall fund its inspection, monitoring and enforcement responsibilities entirely by AMCIPOW C fees imposed on the owners of properties which are made subject to the Program by virtue of state and federal law, and/or other sources of funding established by a separate ordinance. 1.5 Terms used in this ordinance shall have the meanings specified in the Program. SECTION 2. PROCEDURE FOR COSESCO COMPLIANCE 2.1 All persons required by law or administrative rule to obtain a State NPDES General Permit #2 from the IDNR are subject to the terms of this ordinance and are required to comply with the requirements of the State NPDES General Permit #2. 2.2 Prior to the issuance of any permits by the City for construction activities on the site, an applicant shall: 2.2.1 Submit to the City a site plan which shows best management practices (BMP) control measures and a Storm Water Pollution Prevention Plan (SWPPP) applicable to the site and shall receive approval of the site plan and SWPPP; 2.2.2 Submit to the City a Plan Review Fee of$ ; and 2.2.3 Notify the City that it has submitted all necessary information to the State for coverage under General Permit#2 for the site. 2.3 The City shall have fifteen(15) days from the date of the receipt of the applicant's site plan and SWPPP to review and approve or reject the site plan and SWPPP: 2.3.1 If the City approves the site plan and SWPPP, the City shall notify the applicant of such approval immediately but in all events no later than twenty(20) days after submittal of the site plan and SWPPP to the City; 2.3.2 If the City takes no action within fifteen (15) days, the site plan and SWPPP will be deemed approved by operation of law to the extent that the site plan and SWPPP are in compliance with the requirements of General Permit#2; 2.3.3 If the City rejects the site plan and SWPPP, the City shall inform the applicant, in writing and with specificity,of all reasons for the rejection; 2.3.3.1 Applicant may attempt to correct the deficiencies itemized by the City and resubmit the site plan and SWPPP to the City for review. The City shall have seven (7) days from the date of the resubmittal to review and approve or reject the revisions to the site plan and/or SWPPP. If the City approves the revisions, the City shall immediately notify the applicant of such approval but in all events no later than ten (10) days after resubmittal by the applicant. If the -2- City takes no action within seven (7) days, the site plan and/or SWPPP will be deemed approved to the extent that the site plan and SWPPP are in compliance with the requirements of General Permit #2 If the City rejects the revisions to the site plan and/or SWPPP, the City shall inform the applicant, in writing and with specificity, of all reasons for the rejection and applicant may, again, attempt to correct the deficiencies in the manner set out above. 2.3.3.2 Applicant may challenge the City's rejection of site plan and SWPPP approval by appealing to the Board of Adjustment. 2.4 Every SWPPP submitted to the City for review: 2.4.1 Shall comply with all existing requirements for SWPPPs promulgated by the IDNR in connection with issuance of a State NPDES General Permit #2; and 2.4.2 Shall, if the applicant is required by law to file a Joint Application Form PROTECTING IOWA WATERS, IOWA DEPARTMENT OF NATURAL RESOURCES AND U.S. ARMY CORPS OF ENGINEERS, comply with all mandatory minimum requirements pertaining to such applicants; and 2.4.3 Shall comply with all other applicable state or federal permit requirements in existence at the time of application including, but not limited to, waste at construction sites that may cause adverse impact to water quality such as building materials, concrete truck washout, chemicals, solid waste and sanitary waste. SECTION 3. INSPECTION PROCEDURES FOR COSESCO 3.1 All inspections required under this ordinance shall be conducted by [the city engineer] [the city public works director] [the community development director] [the building inspector] [a subcontractor credentialed in a manner satisfactory to the city], hereinafter referred to as the"enforcement officer." 3.2 Any applicant that is subject to the terms of COSESCO shall allow the City or an authorized representative of the City, upon the presentation of credentials and other documentation as may be required by law, to enter upon applicant's private property for inspection purposes. 3.3 The City may conduct inspections at any time. 3.3.1 In any calendar year, the City must inspect the site [twice each calendar year] [once each quarter] and upon the receipt of a complaint (not to exceed one time per calendar month) and the city may charge to the applicant the amount of up to $ for each such inspection; -3- 3.3.2 In addition to the inspections set out in 3.3.1 the City may conduct additional inspections at the City's own expense. 3.4 In the event an inspection identifies an area or incident of non-compliance, the City may, at its discretion, provide applicant with a bill of particulars that identifies the area or incident of non-compliance. In the event an enforcement action is taken, a bill of particulars must first be provided to applicant. SECTION 4. MONITORING PROCEDURES FOR COSESCO 4.1 It shall be applicant's duty to notify the City of any changes, alterations, transfers of coverage or sales of any property in the same manner, to the same extent and at the same time as such notification is provided to the Iowa Department of Natural Resources pursuant to the requirements of the state NPDES General Permit No. 2. SECTION 5. ENFORCEMENT BY LEGAL OR ADMINISTRATIVE ACTION 5.1 Violation of any provision of this ordinance may be enforced by legal (civil) action including an action for injunctive relief. 5.2 Violation of any provision of this ordinance may also be enforced as a municipal infraction within the meaning of §364.22, pursuant to the City's municipal infraction ordinance.' 5.3 Enforcement pursuant to this section shall be undertaken by the enforcement officer upon the advice and consent of the City Attorney. SECTION 6. ENFORCEMENT BY ORDER TO TERMINATE FURTHER ACTIVITIES 6.1 As an alternative to enforcement by legal or administrative action, an enforcement officer may issue an order to terminate further activities at the site under the following conditions: 6.1.1 The order to terminate may be issued only for failure to implement or maintain pollution control BMPs; 6.1.2 The order may issue for a period not to exceed days during which time the applicant will be allowed to correct the identified deficiency; 6.1.3 The applicant may reject the order by notifying the city, in writing. Upon receipt of such written notice, the order to terminate shall be deemed null and void and the City may undertake enforcement pursuant to Section 5 herein. ' A city may consider various enforcement mechanisms. However, the Iowa Code fiunishes cities with a very useful tool called"municipal infractions." If a city adopting this ordinance does not already have a municipal infraction ordinance,one should be seriously considered- -4- 6.2 If the applicant does not reject the order to terminate and corrects the identified deficiency within the designated period, the applicant may immediately commence further activity at the site and no further penalties or orders shall issue against the applicant for the identified deficiencies. Prior to commencing further activity at the site, the applicant shall establish correction of the deficiency by providing to the office of the enforcement officer, a written statement, signed under oath, that the deficiency has been corrected with a description, including photographs when appropriate, of the action taken to correct the deficiency. 6.3 If the deficiency cannot be corrected within days, applicant may seek an extension of the order to terminate for such additional period of time as allowed by the enforcement officer. 6.4 If the deficiency is not corrected within the designated period (with extensions), the city may commence a legal or administrative action against the applicant as set forth in Section 5 above. SECTION 7. APPEAL 7.1 Administrative decisions by city staff and enforcement actions of the enforcement officer may be appealed by the applicant to the board of adjustment pursuant to the following rules:2 7.1.1 The appeal must be filed in writing with the city clerk within thirty (30) business days of the decision or enforcement action. 7.1.2 The written appeal shall specify the action appealed from and the errors allegedly made by the enforcement officer giving rise to the appeal. 7.1.3 Within five (5) days of filing the written appeal, the enforcement officer shall specify in writing the reasons for the enforcement action. 7.1.4 The city clerk shall notify the applicant and the enforcement officer by ordinary mail, and shall give public notice in accordance with Chapter 21, Iowa Code, of the date, time and place for the regular or special meeting of the board of adjustment at which the hearing on the appeal shall occur. The hearing shall be scheduled for a date not less than ten (10) nor more than thirty (30) days after the filing of the appeal. The rules of evidence and procedure, and the standard of proof to be applied, shall be the same as provided by Chapter 17A, Code of Iowa. The applicant may be represented by counsel at the applicant's expense. The enforcement 2 If the city already has rules applicable to the appeal of enforcement actions,the existing process may be incorporated by reference in lieu of the indicated language. The specificity of this provision in terms of time-lines, hearings and decisions are suggested to address constitutional principals of due process and equal protection. -5- officer may be represented by the city attorney or by an attorney designated by the board of adjustment at City expense. 7.2 The decision of the board of adjustment shall be rendered in writing and may be appealed to the Iowa District Court. d:\h09O8Vnodel ordinance-I.doc -S-