The City of Portsmouth has enacted a Stormwater Management Ordinance in order to ensure the general health, safety and welfare of the citizens of Portsmouth and to protect the quality and quantity of state waters from the potential harm of unmanaged stormwater, including protection from any land disturbing activity causing unreasonable degradation of properties, water quality, stream channels, and other natural resources, and to establish procedures whereby stormwater requirements related to water quality and quantity should be administered and enforced. The City of Portsmouth complies with the Chesapeake Bay Preservation Act and portions of the city fall under the regulations of the Act. The City of Portsmouth 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 Portsmouth will only provide construction permits to projects that establish a plan to manage stormwater runoff occurring during the construction process. Stormwater fees will be collected by the City of Portsmouth. The City of Portsmouth, 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. 31.2-12 Long-term maintenance of permanent stormwater facilities.
(a) The administrator shall require the provision of long-term responsibility for and maintenance of stormwater management facilities and other techniques specified to manage the quality and quantity of runoff. Such requirements shall be set forth in an instrument recorded in the local land records prior to general permit termination or earlier as required by the administrator and shall at a minimum:
- Be submitted to the administrator for review and approval prior to the approval of the stormwater management plan;
- Be stated to run with the land;
- Provide for all necessary access to the property for purposes of maintenance and regulatory inspections;
- Provide for inspections and maintenance and the submission of inspection and maintenance reports to the administrator; and
- Be enforceable by all appropriate government parties.
(b) At the discretion of the administrator, such recorded instruments need not be required for stormwater management facilities designed to treat stormwater runoff primarily from an individual residential lot on which they are located, provided it is demonstrated to the satisfaction of the administrator that future maintenance of such facilities will be addressed through an enforceable mechanism.
(c) If a recorded instrument is not required pursuant to subsection 31.2-12(b), the administrator shall develop a strategy for addressing maintenance of stormwater management facilities designed to treat stormwater runoff primarily from an individual residential lot on which they are located. Such a strategy may include periodic inspections, homeowner outreach and education, or other method targeted at promoting the long-term maintenance of such facilities. Such facilities shall not be subject to the requirement for an inspection to be conducted by the administrator.
Sec. 31.2-13. Monitoring and inspections.
(a) The administrator shall inspect the land disturbing activity during construction for:
- Compliance with the approved erosion and sediment control plan;
- Compliance with the approved stormwater management plan;
- Development, updating, and implementation of a pollution prevention plan;
- Development and implementation of any additional control measures necessary to address a TMDL.
(b) The administrator may, at reasonable times and under reasonable circumstances, enter any establishment or upon any property, public or private, for the purpose of obtaining information or conducting surveys or investigations necessary in the enforcement of the provisions of this chapter.
(c) In accordance with a performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement or instrument, the administrator may also enter any establishment or upon any property, public or private, for the purpose of initiating or maintaining appropriate actions which are required by the permit conditions associated with a land disturbing activity when a permittee, after proper notice, has failed to take acceptable action within the time specified.
(d) Pursuant to Code of Virginia § 62.1-44.15:40, the administrator may require every VSMP permit applicant or permittee, or any such person subject to VSMP permit requirements under this chapter, to furnish when requested such application materials, plans, specifications, and other pertinent information as may be necessary to determine the effect of his discharge on the quality of state waters, or such other information as may be necessary to accomplish the purposes of this chapter.
(e) Post-construction inspections of stormwater management facilities required by the provisions of this chapter shall be conducted by the administrator pursuant to the city's adopted and state board approved inspection program, and shall occur, at minimum, at least once every five (5) years except as may otherwise be provided for in section 31.2-12
Sec. 31.2-16. Enforcement.
(a) If the administrator determines that there is a failure to comply with the VSMP permit conditions or determines there is an unauthorized discharge, notice shall be served upon the permittee or person responsible for carrying out the permit conditions by any of the following: verbal warnings and inspection reports, notices of corrective action, consent special orders, and notices to comply, Written notices shall be served by registered or certified mail to the address specified in the permit application or by delivery at the site of the development activities to the agent or employee supervising such activities.
(1) The notice shall specify the measures needed to comply with the permit conditions and shall specify the time within which such measures shall be completed. Upon failure to comply within the time specified, a stop work order may be issued in accordance with subsection (a)(2) below or the permit may be revoked by the administrator.
(2) If a permittee fails to comply with a notice issued in accordance with this section within the time specified, the administrator may issue a stop work order requiring the owner, permittee, person responsible for carrying out an approved plan, or the person conducting the land disturbing activities without an approved plan or required permit to cease all land disturbing activities until the violation of the permit has ceased, or an approved plan and required permits are obtained, and specified corrective measures have been completed.
Such orders shall become effective upon service on the person by certified mail, return receipt requested, sent to his address specified in the land records of the locality, or by personal delivery by an agent of the administrator. However, if the administrator finds that any such violation is grossly affecting or presents an imminent and substantial danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the commonwealth or otherwise substantially impacting water quality, he may issue, without advance notice or hearing, an emergency order directing such person to cease immediately all land disturbing activities on the site and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof, to such person, to affirm, modify, amend, or cancel such emergency order. If a person who has been issued an order is not complying with the terms thereof, the administrator may institute a proceeding for an injunction, mandamus, or other appropriate remedy in accordance with subsection 31.2-16(c).
(b) In addition to any other remedy provided by this chapter, whenever the permittee has failed to comply with a notice to comply issued under this section, the administrator may direct the appropriate city official to suspend or revoke other city-issued licenses and permits that may be reasonably associated with the proper execution of the approved plan. Such suspension or revocation shall remain in effect until the permittee becomes compliant with the approved plan and has satisfactorily addressed the issues identified in the written notice, as determined by the administrator. Such other permits or licenses shall include, but are not necessarily limited to, building permits, zoning permits and clearances, health permits, land disturbing permits, right- of-way permits, et al.
In the event of a revocation of a land disturbing permit or the issuance of a stop work order, the owner or applicant shall be required to re-apply for the land disturbance permit and submit the required land disturbance permit fees based on the fee schedule that was in place at the time of the revocation or issuance, respectively. In addition, the site must be in compliance and pass a site inspection conducted by the city's VSMP inspectors before the new land disturbance permit will be issued.
(c) Any person violating or failing, neglecting or refusing to obey any rule, regulation, ordinance, order, approved standard or specification, or any permit condition issued by the administrator may be compelled in a proceeding instituted in the circuit court of the City of Portsmouth by the city to obey same and to comply therewith by injunction, mandamus, or other appropriate remedy.
(d) Any person who violates any provision of this chapter or who fails, neglects or refuses to comply with any order of the administrator, shall be subject to a civil penalty not to exceed $32,500.00 for each violation within the discretion of the court. Each day of violation of each requirement shall constitute a separate offense.
(1) Violations for which a penalty may be imposed under this subsection shall include but not be limited:
- No state permit registration;
- No SWPPP;
- Incomplete SWPPP;
- SWPPP not available for review;
- No approved erosion and sediment control plan;
- Failure to install stormwater BMP's or erosion and sediment controls;
- Stormwater BMPs or erosion and sediment controls improperly installed or maintained;
- Operational deficiencies;
- Failure to conduct required inspections;
- Incomplete, improper, or missed inspections; and
- Discharges not in compliance with the requirements of Section 9VAC-25-880-70 of the general permit.
(2) The administrator may institute proceedings for collection of the civil penalty and the action may be prosecuted in the appropriate court.
(3) In imposing a civil penalty pursuant to this subsection, the court may consider the degree of harm caused by the violation and also the economic benefit to the violator from noncompliance.
(4) Any civil penalties assessed by a court as a result of proceedings initiated by the city shall be paid into the treasury of the City of Portsmouth to be used for the purpose of minimizing, preventing, managing, or mitigating pollution of the waters of the locality and abating environmental pollution therein.
(c) Notwithstanding any other civil or equitable remedy provided by this section or by law, any person who willfully or negligently violates any provision of this chapter, any order of the administrator, any condition of a permit, or any order of a court shall be guilty of a misdemeanor punishable by confinement in jail for not more than 12 months or a fine of not less than $2,500.00 nor more than $32,500.00, or both.
Sec. 31.2-17. Fees.
(a) Applicant shall be required to pay the City of Portsmouth's applicable land disturbance permit fees, site plan review fees, and site inspection fees.
(b) All fees, including fees for permit issuance, modification or transfer or registration statements, and permit maintenance fees, are provided in the City of Portsmouth Engineering Department's Schedule of Fees.
Sec. 31.2-19. Virginia Stormwater Management Handbook and BMP clearinghouse.
The Virginia Stormwater Management Handbook and the BMP Clearinghouse, including all future amendments thereto are hereby adopted and incorporated by reference. Whenever the handbook and the BMP Clearinghouse conflict, the more stringent shall control.
Sec. 31.2-23. Pollution of the stormwater system.
(a) Prohibited acts:
(1) It shall be unlawful for any person to put, or allow to be put, any process water, wastewater, filth, animal or vegetable matter, chips, shavings or any other substance in the stormwater system, or do any injury thereto, or in any manner pollute the stormwater system.
(2) It shall be unlawful for any person to pour or discharge, or to permit to be poured or discharged, or to deposit, so that the same may be discharged, any gasoline, oil waste, antifreeze, or other fluids from vehicles or motor vehicles or equipment into any stormwater system.
(3) It shall be unlawful for any commercial, industrial or manufacturing entity to discharge process water or unpermitted discharge into any stormwater system.
(4) It shall be unlawful for any person to throw, place or deposit, or cause to be thrown, placed or deposited, in any gutter, ditch, storm drain or other drainage area in the city anything that impedes or interferes with the free flow of stormwater therein.
(b) Penalty for violation. Unless otherwise specified, any person or entity who shall violate any of the provisions of this chapter, or any regulation promulgated pursuant to authority granted by this chapter, shall be guilty of a misdemeanor and shall be subject to a fine not exceeding $1,000.00 or up to 30 days imprisonment for each violation or by both fine and imprisonment. Any such person shall furthermore be liable for all damage, loss and/or expense suffered or incurred by the city as a result of such violation, and the city may elect to pursue either or both civil and criminal remedies.
(c) Remediation and removal. In addition to any penalty imposed for a violation of subsections (a)(1) through (4) of this section, the court hearing the case may direct the person responsible for the discharge or deposit, and each day's default in such remediation or removal shall constitute a violation of and a separate offense under this section.
(d) Enforcement. The administrator and/or his designee, police officers, and fire marshals are hereby designated and authorized to enforce the provisions of this chapter.
Sec. 31.2-24. Notice to correct drainage.
(a) Whenever the administrator shall find that a tract of land is inadequately drained, or that there is an obstruction to a culvert, drain or other natural or manmade watercourse that interferes with stormwater naturally flowing therein or that such culvert, drain or watercourse is of insufficient capacity to reasonably accommodate the flow of stormwater, the administrator or a person designated by the administrator shall notify the owner or person having possession, charge or management of such land to remove the obstruction or provide the necessary drainage.
(b) The owner or person having possession, charge or management of the land in question must comply with the administrator's order within the time specified in the notice. Failure to comply with such order shall constitute a violation of this chapter. In addition to any penalty imposed for each violation, the court hearing the case may direct the person responsible for the obstruction to remediate or correct the obstruction, and each day's default in such remediation or correction shall constitute a violation of and a separate offense under this section.
Sec. 31.2-26. Stormwater utility fees.
(a) The stormwater utility fees set out in Appendix A to this Code are hereby authorized for all utility customers in the city. Rates will be based upon equivalent residential units (ERU). An ERU will be the equivalent of 1,877 square feet of impervious area which will include all buildings, structures and other impervious and semi-pervious surfaces which contribute to stormwater runoff. The minimum monthly charge shall be equal to one ERU. The number of ERU's will be determined by the administrator of public works or his designee.
(b) All payments for this service shall be the responsibility of the owner.
(c) When new properties are brought into the utility system, fees will accrue commencing with either completion of a frame or slab inspection or upon completion of any construction which contributes impervious surface area where no certificate is issued or required for such construction.
(d) In the event of alteration or addition to a nonresidential property which alters the amount of impervious surface area, the stormwater management fees will be adjusted upon either the completion of a frame or slab inspection or upon completion of the construction, whichever occurs first, and the adjustment will be reflected in the next billing cycle.
(e) Nonresidential parcels having a total impervious surface area greater than 250,000 square feet shall be assessed on the same basis as parcels of 250,000 square feet, for an interim period which is authorized for up to five years, which period shall expire no later than June 30, 2000, for the purpose of investigating and evaluating the drainage runoff patterns and possible use of regional best management practices (BMPs).
(f) Petitions for adjustments to the stormwater fees for residential and nonresidential properties shall be submitted to the city manager or his designee, who shall be given the authority to administer the procedures and standards and review criteria for the adjustment of fees as established herein. Any petition submitted for adjustment to the stormwater fees for a residential or nonresidential property shall be accompanied with a site plan or other such similar scaled drawing. A petition shall also include calculations of the property's impervious and semi-pervious area. The site plan and the calculations shall both be prepared by a professional engineer or land surveyor licensed in the commonwealth and acceptable in format and content to the administrator of public works or his designee.
Sec. 31.2-27. Late charges.
In the event charges are not paid when due, interest thereon shall at that time accrue, at the annual rate of ten percent, until such time as the overdue payment and interest is paid. Charges and interests may be recovered by action at law or suit in equity and shall constitute a lien against the property, ranking on a parity with liens for unpaid taxes.
Post Construction Stormwater Management Advice From The City
Do you know where rainwater goes when it rains? If you think it is naturally filtered through soils, you are only partially correct. While soils do absorb water, once the maximum absorption has been reached, excess rainwater is forced to flow down slope in search for the next available exit. On its journey, stormwater picks up all sorts of unwanted hitchhikers like: cigarette butts, motor oil, antifreeze, fast food bags, sediment, pet waste and excess fertilizer. To help combat pollutants from entering the bay, contractors and engineers construct preventive measures such as drainage swales, retention ponds and porous pavement to help counteract the impact of urbanization on our waterways. These preventative measures are commonly referred to as Best Management Practices (BMPs). A more detailed list of common BMPs is available at the EPA's Website. To ensure these pollution control devices are maintained and functioning as designed, the city inspects them regularly. For private BMPs, the City requires BMP maintenance agreements be signed by private land owners where structures have been installed. To keep track of BMPs around the city, a database is maintained and updated as needed. Ultimately, the City will use this database as a resource to schedule required inspections.
Stormwater Utility Fee
On April 25, 1995, the City of Portsmouth adopted a new Stormwater Management Utility (SMU) Ordinance, which specified a rate structure and billing mechanism.
The new rate structure is the same for all properties in the City. The rate is based on impervious (non-passable by water) area as a measure of each property's contribution to stormwater runoff. Impervious area is measured in Equivalent Residential Units (ERUs). The average impervious area for residential properties in the City of Portsmouth is represented by one ERU, which is calculated as 1,877 square feet. Note that impervious surfaces are those that prevent water from soaking into the soil such as rooftops, concrete or asphalt parking lots, sidewalks, driveways, etc.
· $9.25 per month (or $27.75 per quarter) per ERU.
· RESIDENTIAL properties are billed for only 1 ERU = $9.25 per month, or $27.75 per quarter, or $111.00 per year.
· NON-RESIDENTIAL properties are billed for their actual amount of impervious cover, converted to ERU's. Example: The bill for a non-residential property with 10,000 square feet of impervious cover would be calculated thus:
o 10,000 square feet divided by 1,877 square feet per ERU = 5.3 ERUs
o 5.3 ERUs x $9.25/ERU = $49.03 per month, $147.09 per quarter, or $588.36 per year.