ARTICLE 38
STORMWATER DISCHARGES GENERATED BY
CONSTRUCTION ACTIVITY BY-LAW
I. AUTHORITY
This By-Law is adopted in accordance with the authority granted, inter alia, by
Amendment Article 89 to Article II of the Massachusetts Constitution and M.G.L.
Chapter 43B section 13. The Board of Selectmen is delegated hereby the
responsibility and authority to enforce and administer this By-Law. The
Board of Selectmen may appoint the Stormwater Manager or such other municipal
employees as the Board of Selectmen may from time-to-time determine and
designate in a writing, to aid the Board of Selectmen in the enforcement and
administration of this By-Law.
II. PREAMBLE
In partial fulfillment of the obligations of the Town under the Clean Water Act
(33 U.S.C. 1251 & seq.) (the “CWA”) and under the Town’s National Pollutant
Discharge Elimination System General Permit, the Town hereby establishes a
comprehensive and fair system of regulation of Storm Water Discharges generated
as a result of Construction Activity.
III. PURPOSE
The purpose and intent of this By-Law is to:
A. Prevent Pollutants caused by Storm Water Discharges from a
Construction Site from entering Waters of the U.S.
B. Minimize Erosion and Sedimentation generated by Construction Activity
with
the goal of removing 80% of the average annual load of total suspended solids
in Storm Water discharged from a Construction Site.
C. Minimize the volume of Storm Water discharged from a Construction Site
with the goal that the post-development peak discharge rate of Storm Water does
not exceed the pre-development peak discharge rate.
D. Ensure that Storm Water Management Measures are built as outlined in
the Storm Water Pollution Prevention Plan.
E. Ensure that Storm Water Management Measures are continually maintained
as outlined in the Storm Water Pollution Prevention Plan.
IV. DEFINITIONS
AGRICULTURE: The normal maintenance or improvement of land in
agricultural or aquacultural use as defined by the Massachusetts Wetlands
Protect Act (M.G.L. C. 131 s. 40) and its implementing regulations (310 C.M.R.
10).
APPLICANT: That Person who owns the land at the time of the application
for a Storm Water Permit and his successors and assigns. An Operator may
apply on behalf of the owner if such authorization is in writing and is
submitted with the application.
AWARDING AUTHORITY: The Board of Selectmen of the Town of Sharon
has authority to exercise the powers granted by this By-Law.
BEST MANAGEMENT PRACTICE (BMP): An activity, procedure, restraint, or
structural improvement that helps to reduce the quantity or improve the quality
of Storm
Water Discharges.
CERTIFICATE OF COMPLETION: A certificate issued by the Awarding Authority
indicating that Final Site Stabilization has occurred, been inspected and
approved by a representative of the Awarding Authority, and as-built plans have
been filed with the Awarding Authority.
CONSTRUCTION ACTIVITY: Any activity that causes a change in the position
or location of soil, sand, rock, gravel or similar earth material for the
purpose of building roads, parking lots, residences, commercial buildings,
office buildings, industrial buildings or demolitions.
CONSTRUCTION SITE: The plot of land located within the Town on which the
Construction Activity will occur.
DISTURB: Any activity such as clearing, grading and excavating that
exposes soil, sand, rock, gravel or similar earth material.
EROSION: The wearing of the land surface by natural or artificial forces
such as: wind, water, ice, gravity or vehicular traffic and the subsequent
detachment and transportation of soil particles from their origin to another
location.
FINAL SITE STABILIZATION: Means that all Construction Activity at the
site has been completed and a uniform perennial vegetative cover percentage as
required by zoning regulations and native background vegetative cover for the
area have been established on all unpaved areas and areas not covered by
permanent structures or equivalent permanent stabilization measures.
LARGER COMMON PLAN OF DEVELOPMENT OR SALE:
Means a contiguous land area under one ownership on which multiple
separate and distinct Construction Activities are occurring under one
development plan.
MUNICIPAL SEPARATE STORM SEWER SYSTEM (MS4): Means a conveyance or system
of conveyances (including roads with drainage systems, municipal streets, catch
basins, curbs, gutters, ditches, man-made channels or storm drains) owned or
operated by the Town designed and used for collecting or conveying Storm Water
to an Outfall.
NPDES PERMIT: National Pollution Discharge Elimination System
Construction General Permit issued by the Environment Protection Agency to the
Applicant.
OPERATOR: The party associated with the Construction Activity that meets
either of the following two criteria:
a. The party who has operational control over construction plans and
specifications including the ability to make modifications to those plans and
specifications or
b. The party who has day-to-day operational control of those activities
at a project
which are necessary to ensure compliance with a Storm Water Pollution
Prevention Plan for the site or other permit conditions.
OUTFALL: A point source at which a Municipal Separate Storm Sewer System discharges
to Waters of the U.S.
PERMITTEE: The owner of the land on which Construction Activity is
proposed who has applied for and received a Storm Water Permit from the
Awarding Authority.
PERSON: An individual, partnership, association, firm, company, trust,
corporation, agency, authority department or political subdivision of the
Commonwealth of Massachusetts or the federal government, to the extent
permitted by law, and any officer, employee, or agent of such Person.
POLLUTANTS: Include without limitation the following: Dredged
spoil, solid waste, incinerator residue, filter back-wash, sewage, garbage,
sludge, munitions, chemical wastes, biological materials, radioactive
materials, heat, wrecked or discarded equipment, rocks, sand, animal or agricultural
waste, oil, grease, gasoline or diesel fuel.
SEDIMENTATION: The process or act of depositing mineral or organic soil
material in Storm Water as a result of Erosion.
STORM WATER: Rainfall and snow melt that exceeds the soil’s capacity
contemporaneously to absorb it and which, instead, runs across the surface of
the ground as run-off.
STORM WATER DISCHARGES: Storm Water that runs off from the Construction
Site
into the MS4 or otherwise into Waters of the U.S.
STORM WATER MANAGEMENT MEASURES: Infrastructure improvements
that are constructed or installed during Construction Activity to prevent
Pollutants from entering Storm Water Discharges or to reduce the quantity of
Storm Water Discharges that will occur after Construction Activity has been
completed. Examples include but are not limited to: on-site filtration,
flow attenuation by vegetation or natural depressions, outfall velocity
dissipation devices, retention structures and artificial wetlands, and water
quality detention structures.
STORM WATER MANAGER: The Town Engineer or Assistant Town Engineer will
serve in this capacity.
STORM WATER PERMIT: The permit issued by the Awarding Authority
to the Applicant which allows Construction Activity to occur as outlined by the
Applicant in its application and Storm Water Pollution Prevention Plan.
STORM WATER POLLUTION PREVENTION PLAN (SWPPP): That plan required of all
Applicants in which they outline the Erosion and Sedimentation BMPs they will
use,
the BMPs they will use to control wastes generated on the Construction Site,
the Storm Water Management Measures they will construct and their plan
for long-term maintenance of these measures.
WATERS OF THE US.: These include:
a. All waters that are currently used, were used in the past, or may be
susceptible to use in interstate or foreign commerce, including all waters that
are subject to the ebb and flow of the tide:
b. All interstate waters including interstate wetlands;
c. All other waters such as interstate lakes, rivers, streams (including
intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or
destruction of which would affect or could affect interstate or foreign
commerce including any such waters:
1. That are or could be used by interstate
or foreign travelers for recreational or
other purposes;
2. From which fish or shellfish are or
could be taken and sold in interstate or foreign
commerce; or
3. That are used or could be used for
industrial purposes by industries in interstate
Commerce;
d. All impoundments of waters otherwise defined as waters of the United
States under this definition;
e. Tributaries of waters identified in paragraphs (a) through (d) of this
definition;
f. The territorial sea; and
g. Wetlands adjacent to waters (other than waters that are themselves
wetlands)
identified in paragraphs (a) through (f) of this definition.
V. PROHIBITIONS
A. No Construction Activity which Disturbs one acre or more of total land
area including smaller areas that are part of a Larger Common Plan of
Development or Sale shall take place until a Storm Water
Permit has been obtained from the Awarding Authority. Normal maintenance
and improvement of land in agricultural or aquacultural use as defined by the
Massachusetts Wetlands Protection Act and its implementing regulations are
exempt from this prohibition. The Stormwater Permit does not exclude
the requirement of filing a Construction General Permit with the Environmental
Protection Agency.
B. No Storm Water Discharges containing Pollutants are permitted.
C. Sources of non-Storm Water may be combined with Storm Water Discharges
as
long as they do not contain Pollutants.
VI. APPLICATION PROCEDURE
Applicant must sign and file an Application for a Storm Water Permit on the
form provided by the Town. The Application should be submitted to the
Storm Water Manager and to be deemed complete must be accompanied by:
A. An application free of five
hundred dollars ($500.00) for an individual residential housing lot
application. An application fee of one thousand dollars ($1000.00) is required
for any Storm Water Permit Application for a commercial project, residential
subdivision or any development exceeding one acre of disturbance and not single
residence on an individual lot.
B. Identification of the Construction
Site by book, page, and plot number in
the records
of the Assessor’s Office.
C. A narrative description of the
Construction Activity intended, the
proposed use
of any improvements to be constructed and the construction
timetable.
D. A site plan.
E. A list of abutters certified by
the Assessor’s Office including addresses.
F. A Storm Water Pollution Prevention
Plan.
VII. SITE PLAN REQUIREMENTS FOR PLANNING BOARD AND ZONING BOARD APPLICATIONS FOR LOTS OVER 1 ACRE IN AREA
The site plan that is submitted must contain AT LEAST the following
information. Planning Board plan regulations must also be met for
subdivision applications and Zoning Board regulations must also be met for site
plan reviews:
A. Names, addresses and telephone numbers of the person(s) or firm(s)
preparing the
plan.
B. Title, date, north arrow, scale, legend and locus map.
C. Location and description of natural features including watercourses
and water bodies,
wetland resource areas and all floodplain
information including the 100-year flood
elevation based upon the most recent Flood
Insurance Rate Map (or as calculated by
a professional engineer for areas not assessed on
those maps) located on or adjacent
to the Construction Site.
D. A description and delineation of existing Storm Water conveyances and
impoundments located on the Construction Site
with their point of discharge noted.
E. Location and description of existing soils and vegetation including
tree lines, shrub
layer, ground cover and herbaceous vegetation and
trees with a caliper twelve (12)
inches or larger with run-off coefficient for
each.
F. Habitats mapped by the Massachusetts Natural Heritage & Endangered
Species
Program as Endangered, Threatened or of Special
Concern, Estimated Habitats of
Rare Wildlife and Certified Vernal Pools, and
Priority Habitats of Rare Species
located on or adjacent to the Construction Site.
G. Lines of existing abutting streets showing drainage and driveway
locations and curb
cuts.
H. Surveyed property lines of the Construction Site showing distances and
monument
locations, all existing and proposed easements,
rights-of-way, and other
encumbrances, the size of the entire Construction
Site and the delineation and
number of square feet of the land area that is to
be Disturbed.
I. Proposed improvements including location of buildings or other
structures
and impervious surfaces (such as parking lots).
J. Topographical features including existing and proposed contours at intervals
of no
greater than two (2) feet with spot elevations
provided when needed.
K. The existing site hydrology including drainage patterns and approximate
slopes
anticipated after major grading activities.
L. Location of the MS4 with relation to the Construction Site.
M. Identification of Outfalls which are located on the Construction Site.
N. Storm Water Discharge calculations
prepared and certified by a Registered Professional Engineer describing the
volume of Storm Water that presently Discharges from the Construction Site and
the estimated volume post-development.
O. Identification of any existing Storm Water Discharges emanating from the
Construction Site and discharging into the MS4 for which a NPDES Permit has
been issued (include Permit number).
P. A list of water bodies that will receive Storm Water Discharges from the
Construction Site with the location of drains noted on the map. A brief
description of known water quality impacts and whether the water bodies
receiving such Storm Water Discharges have:
1) Been
assessed and reported in reports submitted by the Massachusetts Department of
Environmental Protection to EPA pursuant to Section 305 (b) of CWA and
2) Been listed as a Category 5 Water (Waters
Requiring a Total Maximum Daily Load (TMDL)) by DEP under 303(d) of the CWA.
VIII. STORM WATER POLLUTION PREVENTION PLAN REQUIREMENTS
Applicant must submit a Storm Water Pollution Prevention Plan (SWPPP) with its
Application for a Storm Water Permit. The SWPPP must include all of the
following:
A. A plan to control wastes generated by the Construction Activity on the Construction Site and
B. An Erosion and Sedimentation control plan and
C. A plan to construct Storm Water Management Measures and
D. A plan for Operation and Maintenance of Storm Water Management
Measures
A. PLAN TO CONTROL WASTES
Applicant must list the construction and waste materials expected to be
generated
or stored on the Construction Site. These wastes include but are not
limited to:
discarded building materials, concrete truck washout, chemicals, litter,
sanitary waste and material stockpilings. Applicant must also describe in
narrative form the Best Management Practices it will utilize to reduce
pollutants from these materials including
storage practices to minimize exposure of the materials to Storm Water and
spill prevention and response plans. If any structural BMPs are proposed,
they must be identified and located on the site plan. At a minimum
Applicant’s plan should provide for the following:
1. Areas designated and controlled for equipment storage, maintenance and
repair.
2. Convenient locations for waste receptacles and a schedule for regular
removal.
3. Wash down areas for vehicles selected to prevent contamination of
Storm Water.
4. Covered storage areas for chemicals, paints, solvents, fertilizers and
other toxic
materials.
5. Adequately maintained sanitary facilities.
B. EROSION AND SEDIMENTATION CONTROL PLAN
Applicant must describe in narrative form its plan for properly stabilizing the
site before construction begins and the BMPs that it will use during
construction to minimize erosion of the soil and sedimentation of the Storm
Water. These BMPs should include both stabilization practices such as:
seeding, mulching, preserving trees and vegetative buffer strips, and
contouring and structural practices such as: earth dikes, silt fences, drainage
swales, sediment traps, check dams, and subsurface or pipe slope drains.
Applicant must locate structural BMPs on the site plan. Applicant
must also provide details of construction including the timing, scheduling and
sequencing of development including clearing, stripping, rough grading,
construction, final grading and Final Site Stabilization.
C. PLAN TO CONSTRUCT STORM WATER MANAGEMENT MEASURES
Applicant must describe its proposed drainage system and identify the Storm
Water
Management Measures it plans to construct on the Construction Site in order to
retain Storm Water recharge on-site and prevent Pollutants from entering Storm
Water
Discharges. These measures include but are not limited to: on-site
filtration, flow attenuation by vegetation or natural depressions, outfall
velocity dissipation devices, retention structures and artificial wetlands and
water quality detention structures.
Applicant is required to show the following on its site plan:
1. The estimated seasonal high groundwater elevation in areas to be used
for Storm
Water Management Measures.
2. Detailed plans and descriptions of all components of the proposed
drainage system
including:
a. locations, cross-sections and profiles
of all brooks, streams, drainage swales
and their method of
stabilization,
b. all Storm Water Management Measures to be used
for the detention, retention
or infiltration of water,
their size and location on the Construction Site, and
the volume of Storm Water
that each will hold.
c. all Storm Water Management Measures for
the protection of water quality
if so-called
Category 5 waters are located on or adjacent to the Construction Site.
d. the structural details for all components
of the proposed drainage system and
Storm Water
Management Measures, including cross-sections.
e. notes on drawings specifying materials
to be used, construction specifications
and typicals and
f. expected hydrology with supporting
calculations of post-development Storm
Water Discharges.
D. PLAN FOR OPERATION AND MAINTENANCE OF STORM WATER
MANAGEMENT MEASURES
Applicant must outline its plan for the long-term operation and maintenance of
the Storm Water Management Measures that have been built on the Construction
Site. This plan
must include the following:
1. A description of the annual maintenance activities that will be
performed and
identification of the individual who will perform
them and
2. An estimate of the annual cost of these maintenance activities and a
description
of the operation and maintenance fund that the
Applicant will establish and
3. The language of a covenant and restriction which Applicant will record
in the
appropriate Registry of Deeds, binding and
enforceable against the Construction
Site and the Owner from time to time thereof to
maintain the Storm Water
Management Measures.
IX. PROCEDURE FOR SITE PLAN REVIEW
A. Following receipt of a complete Application for a Storm Water Permit, the
Storm Water Manager will refer it to either the
Planning Board (if the proposed
construction project requires sub-division
approval under c. 41 of the M.G.L.), Zoning
Board of Appeals, or the Conservation Commission for review and comment, when
applicable.
B. In the event that the plan does not require the approval of the
Planning Board, the Zoning Board of Appeals, or the Conservation Commission,
the Storm Water Manager may forward any Application to the Board of Selectmen
for the purpose of a public hearing on the same, if the Storm Water Manager
deems such a hearing to be necessary based on the possible impact of the
requested Storm Water Permit to any surrounding or abutting properties and or a
Town right of Way.
The approval or denial of a Storm Water Permit will be forwarded to the Building Inspector when required. The Applicant will be notified in writing of the Storm Water Permit approval or denial within thirty (30) days of the submission of the Application. The Storm Water Manager will make the Application available for inspection by the public during normal business hours at the Department of Public Works.
C. After receipt of the recommendation of the Planning Board or the Zoning Board of Appeals and public comment at the public hearing held by the respective Boards, the Storm Water Manager may: approve or deny the Application; require changes to any part of the SWPP; revise the amount of the required annual maintenance deposit or may impose additional conditions in the Storm Water Permit; or may impose additional conditions in the Storm Water Permit that he issues.
D. The Storm Water Manager may not issue the Storm Water Permit until final plans of the development approved by either the Planning Board or Zoning Board of Appeals have been filed with the Storm Water Manager and twenty-one (21) days have elapsed. If there are changes on the final plans which affect the Storm Water Permit, the Storm Water Manager (after written notice to the Applicant) shall review these changes and may impose additional conditions in the Storm Water Permit.
X. CONDITIONS OF THE STORM WATER PERMIT
The following standard conditions shall apply to each Storm Water Permit issued
in accordance with this by-law.
A. The Permittee shall comply with all conditions of the Storm Water Permit and
its Storm Water Pollution Prevention Plan.
B. Permittee shall comply with all other local permits related to the
Construction Site.
C. Permittee shall make an annual deposit of funds in a specially
segregated bank account in the amount equal to the estimated annual cost to
operate and maintain the Stormwater Management Measures. The segregated
account will be opened by the Stormwater Permit applicant and the bank book
will be held by the Town Treasurer’s office. When withdrawals from the account
are required, the applicant will contact the Stormwater Manager, in writing,
and the Stormwater Manager will forward the request to the Town Treasurer if
the request is deemed appropriate by the Stormwater Manager.
D. Permittee shall maintain on-going records of the aforesaid operation and maintenance fund which shall show:
1. The maintenance activities
performed on the Storm Water Management
Measures
located on the Construction Site, the dates on which they were
performed
and the names of the individuals who performed them, and
2. The costs of such
maintenance activities shown deducted from the fund, and
3. The current balance in the
fund.
E. Permittee shall record within ten (10) days of receipt of the Storm
Water Permit
in the appropriate Registry of Deeds a covenant
and restriction in form and
substance identical to that submitted with his
Application and approved by the
Storm Water Manager, and shall submit evidence of such recording to the Storm Water Manager.
F. The Permittee shall furnish the Storm Water Manager any information
which is
requested to determine compliance with the Storm
Water Permit.
G. The Permittee shall allow authorized representatives of the Awarding
Authority to:
1. enter upon the Permittee’s Construction
Site and
2. have access to and the right to copy at
reasonable times any records required
to be kept under
the conditions of this By-Law and
H. Permittee shall allow representatives of the Awarding Authority to
make regular,
unannounced inspections of the Construction
Site. These typically will occur at
the following times:
1. Initial Site Inspection prior to
Construction Activity starting but after a complete
Application has
been filed.
2. After Erosion and Sedimentation
controls are in place.
3. After Construction Site clearing
has been substantially completed.
4. After rough grading has been
substantially completed.
5. Prior to backfilling of any
underground drainage and/or after Storm Water
Management
Measures have been installed.
6. After final grading has been
substantially completed.
7. At the end of the construction
season if Construction Activity has not yet been
completed.
8. After Final Site Stabilization.
I. The Permittee shall report the release of any reportable quantity of hazardous substances oil which occurs on the Construction Site during Construction Activity. This report must be made within fourteen days of knowledge of the release and must include the date and description of the release, the circumstances leading to the release, responses to be employed for such release and measures to prevent re-occurrence of such release.
J. The issuance of the Storm Water Permit does not convey any property
rights of any
sort, nor any exclusive privileges, nor
does it authorize any injury to private property
nor any invasion of personal rights nor any
infringement of Federal, State or local
laws or regulations.
K. The provisions of the Storm Water Permit are severable and if any provision of the Permit or the application of any provision of the Permit to any circumstance is held invalid, the application of such provision to other circumstances and the remainder of the Permit shall not be affected thereby.
L. The Storm Water Permit is not transferable.
M. The Storm Water Manager reserves the right during the Permit Term to
modify the
Permit and impose additional
conditions.
N. Conditions contained in Permittee’s NPDES Comprehensive General Permit
will be
incorporated by reference in the
Storm Water Permit.
XI. PERMIT TERM
The Storm Water Permit shall be effective upon the date of issuance and remain
in effect until the earlier to occur of: 1) a Certificate of Completion is
issued by the Awarding Authority indicating that all Construction Activity has
ceased and Final Site Stabilization construction, inspection and approval by a
representative of the Awarding Authority has occurred, or 2) the date three
years from the date of issuance of the Storm Water Permit has occurred without
Applicant starting Construction Activity on the Construction Site.
XII. DEFAULT OF THE PERMITTEE
The Storm Water Manager may during the Permit Term find a Permittee is in
default after notice and hearing if he shall reasonably determine that:
A. Permittee knowingly made a false material statement, representation or
certification
in his Application or SWPPP, or
B. Permittee is no longer the owner or Operator of the Construction Site
and thus not
authorized to sign the Application for a Storm
Water Permit, or
C. Permittee is not in compliance with the terms of its Storm Water
Permit or SWPPP.
Permittee shall be given not less than ten days prior written notice of the
time and place of the hearing and shall have the opportunity at the public
hearing to present evidence.
XIII. ENFORCEMENT
The Storm Water Manager will report any Permittee that he has found to be in
default as
described in the preceding section to the Awarding AuthorityUpon such
notification, the Storm Water Managedr or the Awarding Authority may take any
of the following actions.
A. Issue a written order requiring the Permittee to cease and desist from
Construction
Activity until there is compliance with this By-Law
and the Storm Water Permit. Any such order may be
Subsequently modified by the Storm Water Manager,
B. Issue a written order requiring maintenance, installation or
performance of
additional Erosion and Sedimentation control
measures by a certain deadline,
C. Issue a written order requiring the repair, maintenance or replacement
of
Storm Water Management Measures by a certain
deadline,
D. Issue a written order requiring remediation of any Pollutants that are
entering
Storm Water Discharges as a result of the
Construction Activity by a certain
deadline,
E. Suspend or revoke the Storm Water Permit,
F. Enforce the covenant and restriction against any or all of the
following: the operation
and maintenance fund, the Construction Site, or
the owner from time to time thereof
as the Town may elect in its discretion.
G. Take any other enforcement action available under applicable federal,
state or local
law.
XIV. APPEALS
An Applicant or Permittee aggrieved by a decision of the Storm Water Manager
under this By-Law may within thirty days of such action request a hearing
before the Board of Selectmen at which the Applicant or Permittee shall be
afforded the opportunity to present evidence and argument concerning final
action by the Board of Selectmen. The Board of Selectmen shall hold such
hearing within thirty days following the filing of the request and within
thirty days after the closing of the hearing shall either confirm the Storm
Water Manager’s previous action or order such other final action as it may
determine. Appeals from a decision of the Board of Selectmen may be taken
to a court of competent jurisdiction.
XV. WAIVERS
The Awarding Authority may, where such action is allowed by law, in the public
interest and not inconsistent with the purpose and intent of this By-Law, waive
strict compliance with any requirement of this By-Law provided:
A. Applicant has submitted a written request to be granted a waiver, has
explained
and/or documented the facts supporting his waiver
request, and has demonstrated
that the strict application of the By-Law to his
case will not further the purpose or
objective of the By-Law, and
B. Applicant’s waiver request was discussed and voted on at a public
hearing
following public notice and notice to abutters.
XVI. SEVERABILITY
If any clause, section or part of this By-Law shall be held invalid or
unconstitutional by any court of competent jurisdiction, the remainder of this
By-Law shall not be affected thereby but shall remain in full force and effect.
XVII. EFFECTIVE DATE
This By-Law shall take effect upon approval by the Office of the Attorney
General and as otherwise required by M.G.L. c. 40, §32.