The City of Owensboro has enacted a Stormwater Management Ordinance in order to establish a set of water quality and quantity parameters applicable to all surface waters to provide reasonable guidance for the regulation of stormwater runoff in all public and private developments. The City of Owensboro is the permitting authority for all land disturbing activities and requires the land owner to maintain all on-site stormwater control facilities and all open space areas (e.g. parks or “green” areas) required by the approved stormwater control plan. The City of Owensboro will only provide construction permits to projects that establish a plan to manage stormwater runoff occurring during the construction process. The City of Owensboro, under the NPDES program, also has the authority to inspect properties for noncompliance and can issue a notice of violation (NOV) for any deficiency or infraction onsite.
Stormwater Management Ordinance
Sec. 26-354. - MCM # 3—Illicit discharge detection and elimination.
(a) It shall be unlawful for any person to do, or permit, authorize, allow or direct another person to do, or fail to do when required, any of the following:
(1) Deposit any concrete, steel, pollutants, building materials, or yard waste of any kind in the guttered curb of any street or alley located within public right-of-way that drains into the MS4 or CSS.
(2) Deposit any solid waste, debris, yard waste, pollutants, waste water (sewage), concrete, building materials, tires, appliances, animal carcasses, or any other substance, material or obstruction of any kind in an open ditch, sewer, or stormwater inlet and catch basin, manhole, that is part of or drains into the MS4 or CSS.
(3) Connect to the public storm sewer system with any illicit connection.
Sec. 26-356. - MCM # 5—Post construction stormwater management in new development, redevelopment, and existing systems.
All stormwater treatment practices shall have an enforceable Operation and Maintenance Agreement to ensure the system functions as designed. This agreement will include any and all maintenance easements required to access and inspect the stormwater treatment practices, and to perform routine maintenance as necessary to ensure proper functioning of the stormwater treatment practice. In addition, a legally binding covenant specifying the parties responsible for the proper maintenance of all stormwater treatment practices shall be secured and recorded into the land record prior to issuance of any permits for land disturbance activities.
The owner of the property on which the private storm sewer system, which includes but is not limited to, the conveyance system, detention/retention basins, and water quality BMPs, is located, shall, at the written request of the city engineer, employ a licensed professional engineer to certify that the private storm sewer system is being maintained at the level of service for which it was originally designed. If a determination is made that the property owner is not maintaining the private system at or above the level of service indicated in the original design, a notice of deficiency shall be issued and the standard escalated process of enforcement initiated. It shall be unlawful for any person to refuse to maintain any part of a private storm sewer system that has been approved by the city engineer as part of any development or site plan. The system shall be maintained at all times to the level of service it was designed for.
(d) Utilization of BMP Resources.
The City of Owensboro has furnished specifications and standards for the proper implementation of the requirements for this ordinance in the form of the OMPC Public Improvement Specifications, Chapter 14. This Chapter includes a list of acceptable stormwater treatment practices, including the specific selection and design criteria, and operation and maintenance requirements for each stormwater practice. Stormwater treatment practices that are designed and constructed in accordance with these selection, design, and sizing criteria will be presumed to meet the minimum water quality performance standards. Alternative practices may be proposed and submitted for review, but must be approved by the City. Additional resources include EPAs National Menu of Stormwater Best Management Practices (http://cfpub.epa.gov/npdes/stormwater/menuofbmps/).
(e) Depositing of material in public and/or private systems. It shall be unlawful for any person to do, or permit, authorize or direct another person to do, or fail to do when required, any of the following:
(1) Erect, construct, deposit, or plant, any building, outbuilding, shed, fence, playground equipment, concrete, landscape berm, trees, bushes, shrubs, flowers, rocks, dirt, or any other substance or structure that covers, alters, obstructs, impairs or encroaches on a public stormwater drainage system.
(2) Cover, alter, excavate, fill, obstruct, encroach on or deposit any concrete, steel, pollutants, building materials, yard waste, or construct ramps of any kind in the guttered curb of any street or alley located within public right-of-way.
(3) Cover, alter, excavate, fill, divert, obstruct, impair, encroach on, or deposit any solid waste, debris, yard waste, pollutants, waste water (sewage), concrete, building materials, tires, appliances, animal carcasses, or any other substance, material or obstruction of any kind in an open ditch, sewer, or stormwater inlet and catch basin, manhole, right-of-way curb and gutter, or over, under, or across any public storm sewer system.
Sec. 26-357. - Enforcement.
(a) Public nuisances. The acts, omissions and conditions prohibited in sections 26-354 to 26-356 of this article are hereby declared to be public nuisances that are inimical to the health, safety and welfare of the citizens of Owensboro.
(b) Responsibility of property owner to remove or abate public nuisance. The owner(s) of property shall be responsible for the removal or abatement, at the property owner's sole expense, of any obstruction, impediment, or encroachment under, over, or across any public stormwater drainage system on the owner's property, that is prohibited in sections 26-354 to 26-356 above and in existence at the time of the adoption of this article. It shall be the duty of the city engineer, as soon as the engineering department ascertains the existence of an unlawful obstruction or encroachment on any public stormwater drainage system, to forthwith notify in person, or in writing by certified mail, return receipt requested as stated below, the record owner of the property on which the public stormwater drainage system is located and/or the holder of the NOI, to remove or abate the unlawful condition, obstruction or encroachment within the time specified in the written notice, except in the case of an emergency approved and declared by the city manager, in which case the notice given shall be that notice which is reasonable and necessary under the circumstances. Failure of the owner of the property to actually receive the notice required herein shall in no way invalidate the provisions of this article or affect the liability of such owner for the cost of removing or abating the public nuisance found to exist on the owner's property.
(c) City may abate nuisance; notice of abatement and assessment; lien. If the property owner fails to remove or abate the nuisance in the manner and according to the specifications directed by the city engineer, within the time permitted therefore, the city may proceed to remove or abate the public nuisance. A record of the entire cost associated therewith, including labor and materials, shall be transmitted to the city engineer who shall, upon approval thereof, assess the cost of the removal or abatement of the public nuisance against the owner(s) of the property improved thereby, by sending the property owner a written "notice of abatement and assessment" directing said property owner(s) to reimburse the city in full for the cost of abatement, within thirty (30) days of receipt thereof. If the property owner or owners fail to comply with the "notice of abatement and assessment" and do not indemnify the city for the cost of removing or abating the public nuisance within the prescribed time period, the city shall have a lien against the property improved thereby for the reasonable value of labor and materials utilized to abate the public nuisance. The lien shall be as follows:
(1) The city shall have a lien against any property or properties finally determined by the city engineer to be in violation of this article to secure the payment and recovery of the reasonable value of labor and materials used to abate the violation, including fines, charges, costs, penalties, and/or fees, including administrative fees. The lien shall be superior to and have priority over, all other subsequent liens on the property except state, county, school board, city taxes and nuisance abatement liens lawfully imposed under KRS 82.720.
(2) The lien shall be recorded in the office of the county clerk. The lien shall be notice to all persons from the time of its recording and shall bear interest at the rate of twelve (12) percent per annum thereafter until paid.
(3) In addition to the remedy prescribed in subsection (a), the person found to have committed the violation shall be personally liable for the amount of all fines, charges, costs, penalties, and/or fees, including administrative fees assessed for the violation and for all charges and fees incurred by the city in connection with the enforcement of this article. The city may bring a civil action against the person and shall have the same remedies as provided for the recovery of a debt.
(4) Transfer of ownership. It shall be unlawful for the owner of any dwelling unit or structure who has received a notice of deficiency, to sell, transfer, mortgage, lease or otherwise dispose of such dwelling unit or structure to another until the requirements listed in the notice of violation have been complied with, or until such owner shall first furnish the grantee, transferee, mortgagee or lessee a true copy of any notice of violation issued by the city engineer and shall furnish to the city engineer a signed and notarized statement from the grantee, transferee, mortgagee or lessee, acknowledging the receipt of such notice of violation and fully accepting the responsibility without condition for making the necessary corrections and repairs required by such notice of violation.
Sec. 26-358. - Notification.
All notification shall be served in person to the owner(s) of the property according to the records in the office of the property valuation administrator, or in writing by certified mail, return receipt requested.
(a) Notice of deficiency (NOD). The city engineer's office shall have authority to inspect any site that it deems to be in violation of this article. If any site violates any portion of this article, a written NOD shall be delivered to the violator. The violator shall be given seven (7) calendar days, or as directed by the city engineer or his designee, to correct the deficiency per the details as specified in the NOD.
(b) Notice of violation level I (NOV I). The city engineer's office shall issue a NOV I to either the holder of the NOI or the owner(s) of any site that has been previously cited, does not comply with the terms of the NOD within the time period specified or violates the provisions of this article to an extent the public health and safety is at risk. The violator shall be given three (3) calendar days, or as directed by the city engineer or his designee, to correct the deficiency per the details as specified in the NOV I.
(c) Notice of violation level II (NOV II). The city engineer's office shall issue a NOV II to either the holder of the NOI or the owner(s) of any site that has been previously cited, does not comply with the terms of the NOV I within the time period specified, or violates the provisions of this article to an extent the public health and safety is at risk. The violator shall be given a stop work order. At this point, the violator shall not work on any item on the site other than to take actions necessary to correct the violation. The violator shall be given seven (7) calendar days, or as directed by the city engineer or his designee, to correct the deficiency per the details as specified in the NOV II. The violator shall have the right to appeal the NOV II to the Director of Public Works. An appeal shall be made in writing within three (3) days of receipt of the NOV II. If the corrective actions are taken, then the stop work order shall be rescinded, and work can continue on the site.
(d) Notice of violation level III (NOV III). The city engineer's office shall issue a NOV III to either the holder of the NOI or the owner(s) of any site that has been previously cited, does not comply with the terms of the NOV II within the time period specified, or violates the provisions of this article to an extent the public health and safety is at risk. The violator shall be penalized as specified in section 26-359 below. The violator shall have the right to appealthe NOV III to the Director of Public Works. An appeal shall be made in writing within three (3) days of receipt of the NOV III.
Sec. 26-359. - Penalties—Non-exclusive remedies.
(a) Criminal penalty. The owner or holder of any property found to be in violation of any section of this article and upon issuance and receipt of the NOV III, shall be guilty of a class A misdemeanor and upon conviction thereof, shall be punished by a fine not to exceed five hundred dollars ($500.00) or by imprisonment for a term not to exceed twelve (12) months, or both. Each day (twenty-four-hour period) on which a violation occurs or continues shall constitute a separate offense under this article.
(b) Civil penalty. As an alternative to, or in conjunction with the penalty set forth herein, any person found to be in violation of this article and upon receipt of the NOV III, may also be assessed a civil penalty not to exceed one thousand dollars ($1,000.00), payable to the city, within twenty (20) days of the issuance of the citation. Civil penalties not paid within the time prescribed herein may be recovered by the city in a civil action, in the same manner provided for the collection of a civil debt.
(c) Legal and equitable remedies. In addition to the penalties prescribed herein, the city may institute appropriate actions or proceedings at law or equity, including mandatory injunctive relief, to enforce the provisions of this article and/or to correct violations thereof. The conviction and punishment of any person hereunder shall not relieve said person of the responsibility to abate or correct prohibited nuisances, encroachments or conditions, or to remove prohibited obstructions, structures, impediments, improvements, or any other material or object from any public storm sewer system, nor prevent the enforcement, correction or removal thereof.