The purpose of this chapter is to provide regulations and give legal effect to certain requirements of the National Pollutant Discharge Elimination System (NPDES) permit (the "Permit") issued to the City of Sunnyvale regarding municipal storm water and urban runoff requirements. This chapter shall apply to all water entering the storm drain system generated on any developed and undeveloped lands lying within the city. This chapter shall be construed to assure consistency with the requirements of the Clean Water Act and Porter-Cologne Act and any applicable implementing regulations, as they exist at the time of enactment or as later amended.

This chapter shall apply to ministerial as well as discretionary approvals of new development or significant redevelopment projects, as those terms are defined in this chapter. Nothing in this chapter shall be interpreted to:

1. Infringe any right or power guaranteed by the California Constitution, including any vested property right; or
2. Require any action inconsistent with any applicable and lawfully adopted general plan, specific plan, vesting tentative map or building code that conforms to the laws of California and the requirements of this chapter.

This chapter shall be administered jointly by the director of community development and the director of public works. Any powers granted to or duties imposed upon these individuals to administer, implement and enforce the provisions of this chapter may be delegated to other city personnel.

For the purposes of this chapter the following words and phrases shall have the meanings given to them in this section. Words and phrases not defined in this chapter shall have the definitions set forth in the Permit or by the regulations implementing the National Pollutant Discharge Elimination System, Clean Water Act section 402, and Division 7 of the California Water Code, as they currently exist or may be amended.

The standards established by this chapter are minimum standards, and do not imply that compliance by any discharger will ensure that there will not be contamination, pollution, nor unauthorized discharge of pollutants. This chapter shall not create liability on the part of the city or any city employee for any damages that result from any discharger’s reliance on this chapter or any lawful administrative decision.

The amount of the fees for services provided under this chapter shall be established periodically by resolution of the city council.

(a) General Prohibition. Any discharge to the storm drain system not composed entirely of storm water is prohibited, except as set forth in this chapter.

(b) Separately Permitted Discharges. Discharges regulated under a valid facility-specific NPDES permit or facility-specific Regional Water Quality Control Board waste discharge requirements permit not including a state general permit, shall be regulated exclusively by the Regional Water Quality Control Board and are exempt from discharge prohibitions established by this chapter, provided compliance with all relevant permit conditions is maintained to the satisfaction of the board. Storm water discharges at a facility with a facility specific permit which only addresses process discharges or non-storm water discharges are not exempted.

(c) State General Permit Discharges. Storm water discharges regulated under the state general industrial storm water permit or state general construction storm water permit are exempt from discharge prohibitions established by this chapter, provided compliance with all relevant general permit conditions is maintained to the satisfaction of the Regional Water Quality Control Board.

(d) Certain Agricultural Discharges. Non-storm water agricultural discharges that the State Water Quality Control Board or Regional Water Quality Control Board have explicitly determined to allow pursuant to a written waiver or formal policy, including any such discharges from commercial nurseries and greenhouses that are covered by such waivers or policies, are exempt from the discharge prohibitions established by this chapter, provided compliance with all relevant permit, waiver or policy conditions established by the state board or regional board are maintained to the satisfaction of the respective board.

(e) Categorically Allowed Discharges. The following categories of non-storm water discharges are exempt from discharge prohibitions established by this chapter.

(f) Conditionally Exempted Discharges. The following categories of non-storm water discharges are conditionally exempt from discharge prohibitions established by this chapter. Dischargers must install, implement and maintain any specifically applicable minimum best management practices, set out in the Best Management Practices Guidelines or BMP Guidebook referenced in Section 12.60.220, so as to prevent or eliminate adverse impacts of such discharges. 

(1) Uncontaminated pumped groundwater;
(2) Foundation drains;
(3) Water from crawl space pumps;
(4) Footing drains;
(5) Irrigation water;
(6) Landscape irrigation;
(7) Lawn or garden watering;
(8) Planned and unplanned discharges from potable water sources;
(9) Water line and hydrant flushing;
(10) Individual residential car washing; and
(11) Discharges or flows from emergency fire fighting activities.

(g) On-site Wastewater Systems. Discharges to the subsurface from permitted properly functioning on-site wastewater systems are not prohibited by this chapter.

(h) Exemptions Not Absolute. Any discharge category described above that is a significant source of pollutant to waters of the United States shall be prohibited from entering the storm drain system, or shall be subjected to a requirement to implement additional best management practices to reduce pollutants in the discharge to the maximum extent practicable. Such prohibitions shall be effective on a schedule specified by an authorized enforcement official in a written notice to the discharger. The schedule may take into account the nature and severity of any effects caused by the discharge; and the time required to design, engineer, fund, procure, construct and make appropriate best management practices operational.

(i) Non-Storm Water Discharge. The prohibition shall not apply to any non-storm water discharge permitted under an NPDES permit, waiver, or waste discharge order issued to the discharger and administered by the State of California under the authority of the Federal Environmental Protection Agency, provided that the discharger is in full compliance with all requirements of the permit, waiver, or order and other applicable laws and regulations. The authorized enforcement official may exempt in writing other non-storm water discharges which are not a source of pollutants to the storm drain system.

(a) The construction, use, maintenance or continued existence of illegal connections to the storm drain system is prohibited.

(b) The authorized enforcement official may, by written notice, require a person responsible for an illegal connection to the storm drain system to eliminate or to secure approval for the connection within a specified time.

(a) It is unlawful knowingly to make or present to the city any false statement, representation, record, report, plan or other document, with regard to any requirements of this chapter.

(b) It is unlawful to throw, deposit, leave, abandon, maintain or keep materials or wastes on public or private lands in a manner and place where they may result in an illegal discharge.

Any person subject to an industrial or construction activity NPDES storm water discharge permit shall comply with all provisions of such permit. Proof of compliance may be required in a form acceptable to the authorized enforcement official prior to or as a condition of the approval of a subdivision map, site plan, building permit, development or improvement plan; upon inspection of the facility and/or during any enforcement action.

This chapter sets forth specific storm water treatment design requirements for certain categories of new and redevelopment projects. There shall be two categories of projects based on project size – Group 1 projects and Group 2 projects. Group 1 projects are defined as set forth. Group 2 projects shall be defined by later amendment to this chapter.

Group 1 projects shall include any of the following types of projects:

(1) Where a significant redevelopment project results in an increase of, or replacement of, more than fifty percent of the impervious surface of a previously existing development, and the existing development was not subject to storm water treatment measures, the entire project must be included in the treatment measure design.

(2) Where a significant redevelopment project results in an increase of, or replacement of, less than fifty percent of the impervious surface of a previously existing development, and the existing development was not subject to storm water treatment measures, only that affected portion must be included in treatment design. Excluded from this category are interior remodels and routine maintenance or repair, including roof or exterior surface replacement and repaving.

(1) Any privately sponsored development for which an application to city has been determined to be complete by the director of community development as of July 15, 2003; and

(2) Any publicly funded project for which funding has been committed and for which construction has been scheduled by October 15, 2003

All applicants for permits pertaining to the planning, design, and construction of all Group 1 projects shall design and implement storm water best management practices so as to reduce storm water pollution to the maximum extent practicable. Such projects shall incorporate the numeric sizing criteria for best management practices set forth in this chapter, by the appropriate implementation dates, unless a waiver and alternative performance is applicable.

12.60.140. Storm water management plan required.

(a) All applications for any city permit or approval required for land disturbance activities, construction, development or significant redevelopment for any project that meets the definition of a Group 1 project, including but not limited to use permits, special development permits, grading permits, variances, landscape plans, design review, parcel maps or tentative maps, applicable building permits, or applicable encroachment permits, must include a storm water management plan.

(b) The storm water management plan shall be accompanied by plans and related documentation demonstrating how the requirements of this chapter will be met, and the permit or approval shall not be granted unless the authorized enforcement official determines that the plan complies with the requirements of this chapter.

(c) At the discretion of the authorized enforcement official, the storm water management plan may include but not be limited to any of the following:

(1) A description of activities and pollutant sources;
(2) Descriptions of best management practices, drawings, maps, and relevant copies or references of parts of other plans;
(3) An employee training program;
(4) Spill response procedures;
(5) Preventive maintenance of structural best management practices as well as other facility equipment and systems;
(6) Material handling and storage, including waste materials and recyclable materials;
(7) An inspection program to investigate non-storm water discharges, best management practice effectiveness, soil erosion; and
(8) Record keeping and internal reporting procedures.

(a) Treatment best management practices for Group 1 projects shall incorporate the following hydraulic sizing design criteria to treat storm water runoff.

(1) Volume Hydraulic Design Basis. Treatment best management practices whose primary mode of action depends on volume capacity, such as detention/retention units or infiltration structures, shall be designed to treat storm water runoff equal to:

(A) The maximized storm water quality capture volume for the area, based on historical rainfall records, determined using the formula and volume capture coefficients set forth in Urban Runoff Quality Management, WEF Manual of Practice No. 23/ASCE Manual of Practice No. 87 (1998), pages 175-178 (e.g. approximately the 85^th percentile 24-hour storm runoff event); or

(B) The volume of annual runoff required to achieve 80 percent or more capture, determined in accordance with the methodology set forth in Appendix D of the California Storm Water Best Management Practices Handbook (1993), using local rainfall data.

(A) 10% of the 50-year peak flow rate; or

(B) The flow of runoff produced by rain equal to at least two times the 85^th percentile hourly rainfall intensity for the applicable area, based on historical records of hourly rainfall depths (for Sunnyvale this is equivalent to 0.21 inches per hour, or 7.1 cubic feet per second); or

(C) The flow of runoff resulting from rain equal to at least 0.2 inches per hour intensity.

Except as this chapter may specifically exempt, every best management practice required to be implemented in new development or redevelopment subject to this chapter shall not, by its construction, operation, maintenance, or lack thereof, lead to or cause flooding.

The authorized enforcement official may require a developer to provide a signed certification from a civil engineer or a licensed architect or landscape architect registered in the State of California that any plan for proposed storm water treatment facilities and best management practices meet the requirements of this chapter and the established criteria. Each certifying person shall establish to city’s satisfaction that such person has been trained on best management practice design for water quality not more than three years prior to the signature date, and that each certifying person understands the groundwater protection principles applicable to the project site. Training conducted by an organization with storm water treatment best management design expertise such as a university, the American Society of Civil Engineers, American Society of Landscape Architects, American Public Works Association, or the California Water Environment Association may be considered qualifying.

In order to protect groundwater from pollutants that may be present in urban runoff, treatment best management practices that function primarily as storm water infiltration devices must meet, at a minimum, the following conditions:

(a) An authorized enforcement official may require a discharger who has previously received approval of a storm water management plan, to prepare and submit a revised storm water management plan for approval if the discharger does not come into compliance with this chapter after one or more warnings or other enforcement action, because best management practices are inadequate or are not being adequately maintained; or if the facility or activity at issue is a significant source of contaminants to the storm drain system despite compliance with this chapter. Any discharger required to submit and to obtain approval of a revised plan shall install, implement and maintain the best management practices specified in the approved revised plan.

(b) The revised storm water management plan shall identify the best management practices that will be used by the discharger to prevent or control pollution of storm water to the maximum extent practicable. If the activity at issue is a construction or land disturbance activity, the revised plan submitted to the city shall at a minimum meet the requirements of the NPDES general construction storm water permit. If a facility required to submit a revised plan to the city discharges non-storm water to ground water, the facility shall obtain a Regional Water Quality Control Board permit as required by the California Water Code, and shall describe the requirements of that permit in the revised plan.

(c) Whenever submission of a storm water management plan or a revised storm water management plan is required pursuant to this chapter, an authorized enforcement official or authorized enforcement staff may take the existing "Best Management Practices Guidelines" or the BMP Guidebook into account when determining whether the practices proposed in the plan or revised plan are best management practices that will prevent or control pollution to the required level of maximum extent practicable.

(1) Eroded soils. Prior to the rainy season, dischargers must remove or secure any significant accumulations of eroded soils from slopes previously disturbed by clearing or grading, if those eroded soils could otherwise enter the storm drain system.

(2) Storage of Materials and Wastes. All materials and wastes with the potential to pollute urban runoff shall be stored in a manner that either prevents contact with rainfall and storm water, or contains contaminated runoff for treatment and disposal.

(3) Use of Materials. All materials with the potential to pollute urban run off (including but not limited to cleaning and maintenance products used outdoors, fertilizers, pesticides and herbicides, etc. ) shall be used in accordance with label directions. No such product may be disposed of or rinsed into the storm drain system.

(b) Inspection, maintenance, repair and upgrading of best management practices. Best management practices at manned facilities must be inspected by the discharger before and following predicted rain events. Best management practices at unmanned facilities must be inspected by the discharger at least once during the rainy season and at least once between each rainy season. These best management practices must be maintained so that they continue to function as designed. Best management practices which fail must be repaired as soon as it is safe to do so. If the failure of a best management practice indicates that the best management practices in use are inappropriate or inadequate to the circumstances, the practices must be modified or upgraded to prevent any further failure in the same or similar circumstances.

Whenever necessary to make an inspection to enforce any provision of this chapter, or whenever the authorized enforcement official has cause to believe that there exists, or potentially exists, in or upon any premises any condition which constitutes a violation of this chapter, the official may enter such premises at all reasonable times to inspect the premises, to inspect and copy records related to storm water compliance, and to collect samples and take measurements. In the event the owner or occupant refuses entry after a request to enter and inspect has been made, the city is hereby empowered to seek assistance from any court of competent jurisdiction in obtaining such entry.

Whenever the authorized enforcement official finds that a discharge of pollutants is taking place or has occurred which will result in or has resulted in pollutants discharged to storm water or the storm drain system, the official may require by written notice to the owner or responsible person that the pollution be remediated and the affected property restored within a specified time.

Any applicant may request a waiver from the requirement to install treatment best management practices for a given project, upon an appropriate showing of impracticability, and with provision to treat an equivalent pollutant loading or quantity of storm water runoff, or to provide other equivalent water quality benefit. Such a waiver shall be known as "alternative compliance." The location of equivalent storm water treatment, or water quality benefit, should be where no other requirement for treatment exists, and within the same storm water runoff drainage basin, and treating runoff discharging to the same receiving water, where feasible.

12.60.280. Impracticability criteria.

City may grant eligibility for alternative compliance if the implementation of required on-site measures is impracticable, under any of the criteria defined below. The applicant may need to provide at city's request an appropriate technical consultant’s certification, supporting such eligibility.

(a) There are space limitations on detention and/or conveyance of runoff ;

(b) There are limitations on ability of treatment measures to address pollutants of concern;

(c) Location of project site:

(1) Site is within a designated "groundwater protection area" zone; or

(2) Project site is located on soil that is not suitable for infiltration;

(d) If projected costs of required on-site measures would exceed two percent (2%) of total project costs;

(1) Projects within redevelopment project that create housing units affordable to persons of low or moderate income as defined by Health and Safety Code section 50093.

(2) Projects within redevelopment project areas which redevelop an existing brownfield site, as defined by Health and Safety Code section 50093.

(3) Transit village projects within one-half mile of transit stations and/or intermodal facilities.

City may grant eligibility for alternative compliance to on-site detention and/or treatment requirements, without a showing of impracticability, where city has identified a regional project with sufficient capacity or credit to protect or enhance water quality and/or beneficial uses in a manner equivalent to or greater than the storm water benefits that would have been provided from the installation of the required treatment measures at the subject project site. Where feasible, the regional project must discharge to or address the same receiving waters.

When the authorized enforcement official finds that a discharge of storm water has taken place or is likely to take place in violation of this chapter, the authorized enforcement official may issue an order to cease and desist such discharge, or practice, or operation likely to cause such discharge and direct those persons not complying with such prohibitions, limits, requirements, or provisions to comply forthwith; comply in accordance with a time schedule set forth by the city; or take appropriate remedial or preventive action.

In the event cleanup, repairs, construction, or other work is performed on any premises pursuant to any provision of law relating to an emergency or pursuant to any other provision of law authorizing public work on private property in order to correct, eliminate or abate a condition upon such premises which threatens to cause, causes, or has caused a violation of any provision of this chapter, the person responsible for the occurrence or condition giving rise to such work, the occupant and the owner of the premises shall be liable, jointly and severally to the city for public expenditures.

Administrative proceedings may be held and administrative fines and penalties imposed in accord with Chapter 1.08 of this code, except that civil penalties shall not be limited as set forth in that chapter but are to be determined by taking into consideration all relevant circumstances, including but not limited to, the extent of harm caused by the violation, the economic benefit derived through any noncompliance, the nature and persistence of the violation, the length of time over which the violation occurs and corrective action, if any, attempted or taken by the person in charge.

Any person who intentionally or negligently violates any provision of this chapter shall be civilly liable to the city in a sum of not to exceed five thousand dollars per day for each day in which such violation occurs. The city may petition the superior court to impose, assess, and recover such sums.

The remedies provided for in this chapter shall be cumulative and not exclusive, and shall be in addition to any and all other remedies available to the city.

Return to RTC# 03-170 Attachment A

Return to RTC# 03-170