The addition of this chapter to the Municipal Code will provide regulations and the necessary authority to implement certain requirements of the National Pollutant Discharge Elimination System (NPDES) permit issued to the City of Sunnyvale by Region 2 of the California Regional Water Quality Control Board regarding storm water discharge and urban runoff pollution prevention requirements.

Staff recommends adoption of Chapter 12.60 into the Sunnyvale Municipal Code.

As of November 1990, the Clean Water Act requires that all operators of municipal separate storm sewer systems obtain NPDES permits for stormwater discharge and develop stormwater management plans. The purpose of these requirements is to prevent harmful pollutants from being washed by stormwater runoff into the municipal storm sewer and then being discharged into local streams, creeks, and the bay.

The City is a member of the Santa Clara Valley Urban Runoff Pollution Prevention Program (SCVURPPP), which is an association of thirteen South Bay cities and towns, the Santa Clara Valley Water District, and Santa Clara County. All members of SCVURPPP share a common NPDES permit to discharge stormwater into local creeks and South San Francisco Bay. The first countywide NPDES permit was issued in 1990 and revised in 1995. The permit was again revised in February 2001, with an emphasis on watershed management, pollutant specific requirements, and continuous improvement of existing programs.

• Numeric design standards for sizing storm water treatment controls;
• Limits on increases in peak storm water discharges from new or redevelopment sites that may increase erosion in some creeks;
• Requirements for the operation and maintenance of storm water control structures;
• Requirements for site design and pollutant source control measures;
• Definition of a minimum project size based on the amount of impervious surface (e.g., paved areas or roof tops) created for which the design standards, source control measures, peak storm water flow limitations, and maintenance requirements apply;
• Requirements for changes to General Plans, environmental review processes, and the legal authority of a co-permittee to implement the permit requirements;
• Specific reporting requirements and a schedule for implementation of various permit provisions.

City Staff from the Departments of Public Works, Community Development, and Office of the City Attorney have worked together over the past year to develop the best approach for implementing new requirements in the Storm Water NPDES permit, especially the C.3 provision requirements. In order to implement the NPDES permit provisions, the City needs adequate legal authority to implement control measures for new development and significant redevelopment, including all requirements of the C.3 provision. The City’s Municipal Code needs to be amended to establish the new standards for review and approval of certain types of development and redevelopment projects within the City.

The new Storm Water Chapter includes:

• General provisions and definitions;
• Discharge prohibitions to the storm water conveyance system;
• Requirements for storm water pollution prevention and the development of Storm Water Management Plans;
• Numeric sizing criteria for pollutant removal treatment systems;
• Requirements for agreements to maintain storm water treatment Best Management Practices (BMPs) once constructed;
• Guidance on the selection of BMPs as well as minimum best management practices for all dischargers;
• Authority for City staff to inspect and require the proper operation and maintenance of treatment devices;
• The process by which waivers and alternative compliance with permit requirements may be demonstrated; and
• Penalties for failure to comply with provisions of the chapter.

Current Code sections that can be applied to implement the NPDES permit provisions include:

• Title 12, Chapter 12.12 (Sewer Use Regulations)
• Title 16, Chapter 16.16 (Building Code)
• Title 18 (Subdivisions) Chapter 18.12 (Design Standards); Sections 18.12.060 (Drainage System for Storm Water) and 18.12.110 (Grading)
• Title 19 (Zoning) Section 19.38.070, which establishes landscaping, irrigation, and open space requirements.

Standard for Storm Water Requirements. Unlike the Treatment Plant NPDES permit which specifies numerical limits for discharge of pollutants, storm water permits require that both the permittee (the City), certain projects it permits or constructs, and the businesses and industries it regulates, implement best management practices to prevent or reduce pollutants from entering storm water runoff and being washed into creeks and the bay. "Best Management Practices" or "BMP’s" may be either structural measures constructed to control pollutants and/or flow, or operational practices that prevent pollutants from occurring on impervious surfaces and then being washed off by storm water runoff. BMP’s are required to be implemented to the "maximum extent practicable" (MEP). This MEP standard incorporates consideration of public health risks, environmental benefits, pollutant removal effectiveness, and cost and technical feasibility, among others.

New Requirements. The new Provision C.3 of the Storm Water Permit mandates that by July 15 of 2003, the City require of all new development projects that create one acre or more of impervious surface (surface that won’t allow storm water to infiltrate but instead allows it only to run off), or significant redevelopment projects that result in a total of one acre or more of additional and/or replaced impervious surface, implement measures to reduce the amount of flow and/or pollutants from the project. Projects in this size category are called "Group 1" projects.

Provision C.3 also requires that effective October 15, 2004, these requirements for flow control and treatment be applied to projects smaller than one acre, (called "Group 2" projects). The minimum size to which the requirements will then apply is 5000 square feet. An alternate size may be proposed for approval by the Regional Board, by evaluating existing development and redevelopment patterns and providing protection equal to the 5000 sq. ft. level. Staff will return to Council after the Group 2 size has been determined and approved by the Regional Water Quality Control Board to update the City regulations to reflect this new requirement.

Impact to City and Developers. Applicants wishing to obtain a development permit from the City for a project that qualifies as a Group 1 project will be required to submit for approval a storm water management plan describing how the project will meet the requirements of the new chapter. The storm water management plan will propose storm water treatment and control measures which meet the specific design criteria as specified in Provision C.3 and included directly in the proposed ordinance update.

Similarly for the City’s own projects falling into the size requirements of Provision C.3, the City will need to design storm water control measures that meet the same design criteria.

In the case of both private and City projects, these storm water controls will need to be operated and maintained for the life of the project unless modifications are formally approved. Private projects will need to include agreements and language in property deeds to that effect, and the City will inspect sample subsets of the storm water controls on a periodic basis to ensure that operations and maintenance requirements are being met.

Alternate Compliance or "Waiver" Provisions. Provision C.3 of the Storm Water Permit provides that cities may determine that certain projects may be "waived" from the specific requirements described above, based on a determination of impracticability. As outlined in the NPDES storm water permit, this would not be a true waiver, but rather a provision for alternate compliance, in which an applicant may contribute funding toward a regional storm water control project, or provide for equivalent treatment at an alternate location, or other equivalent water quality benefit, in lieu of implementing storm water control measures on-site.

Other Storm Water Permits in the San Francisco Bay Region. In addition to the Storm Water NPDES permit issued in February and October 2001 to the members of the Santa Clara Valley Urban Runoff Pollution Prevention Program, Storm Water permits have also recently (February 2003) been issued to the Counties of San Mateo, Alameda, and Contra Costa. These permits are very similar to the Santa Clara County permit, with some exceptions. Some changes were made to address concerns raised about the stringency of the requirements.

In addition to more generous timeframes for completing required tasks, the other county permits also provided a true waiver for certain projects. For projects where multiple impracticability issues pertain, such as certain "Smart Growth", low-income housing, or transit village projects, or projects for which the nature of the project itself would provide equivalent water quality protection, stormwater control measures were not required. The Executive Officer of the Regional Water Quality Control Board has indicated in a letter to the Santa Clara County agencies her intention that the permits be virtually identical, and her willingness to take revisions of the Santa Clara County permit to the Regional Board for approval to provide the same requirements and timeframes as in the other Bay area county permits. City staff and members of the SCVURPPP are working toward achieving this more level playing field.

Tasks Already Underway. In March 2003, Council approved a contract with Kennedy/Jenks Engineers to develop BMP design and implementation criteria specific to Sunnyvale. These criteria will be used by Community Development and Public Works staff to determine the appropriate storm water control measures relative to the soil and creek conditions in Sunnyvale in the vicinity of proposed development projects.

The Santa Clara Valley Urban Runoff Program, on behalf of its 15 member agencies, has hired a consultant to complete another permit requirement, the Hydromodification Management Plan. This project will determine which creeks and which reaches of the creeks are subject to erosion, and therefore require storm water flow control measures to be implemented.

Staff has formed several interdisciplinary task forces within the City, as well as working with task forces composed of staff from the various agencies in the county-wide program, to determine appropriate ways to implement the requirements of the storm water permit.

Adoption of this ordinance is exempt from CEQA review because it is implementing requirements mandated by a regulatory agency for the protection of the environment. Individual development projects covered by the ordinance will be subject to applicable CEQA review at the time they are processed.

Implementation of the requirements of Storm Water NPDES permit issued in 2000-2001 has had a noticeable impact on ongoing operations in the Community Development and Public Works Departments. To date this work has been absorbed within these departments with the exception of design guidance that has been contracted with Kennedy/Jenks Engineers. With the implementation of this ordinance related to plan approval, permitting and inspection, the impact on staff time and hours will grow. Staff will address operating impacts on an ongoing basis through the regular budget process, with a corresponding review and adjustment of permit fees to reflect the additional costs associated with this change. Specific expertise related to storm water hydraulics engineering will be needed and is likely best addressed through the procurement of consultant engineering services. Staff anticipates it will return with a contract for such services within the next several months.

Public contact was made through posting of the Council agenda on the City's official notice bulletin board, posting of the agenda and report on the City's web page, publication of the Council agenda in the San Jose Mercury News, and the availability of the report in the Library and the City Clerk's Office. In addition, copies of the proposed ordinance change and the Report to Council have been distributed to the Sunnyvale Chamber of Commerce, the Building Industry Association, the Silicon Valley Manufacturing Group, and the Home Builders Association of Northern California.

1. Adopt an Ordinance adding Chapter 12.60 to the Sunnyvale Municipal Code to provide regulations and the necessary authority to implement certain requirements of the National Pollutant Discharge Elimination System (NPDES) permit issued to the City of Sunnyvale by Region 2 of the California Regional Water Quality Control Board regarding storm water discharge and urban runoff pollution prevention requirements.

2. Request additional information and modified language for the proposed ordinance.

3. Do not approve any changes to the Sunnyvale Municipal Code. Failure to approve changes to the Code may result in a failure to comply with the C.3 provisions of the City’s NPDES Storm Water Discharge Permit.

Staff recommends Alternative #1.

Prepared by:
Lorrie B. Gervin
Environmental Division Manager

Reviewed by:
Marvin A. Rose
Director of Public Works

Robert Paternoster
Director of Community Development