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 Measure 3b:  Establish and maintain appropriate legal
 authorities

“Establish and maintain adequate legal authorities to prohibit illegal discharges and enforce the approved Illicit Discharge Detection and Elimination Program.”

Picture3b.jpgThe Phase I communities have established legal authority using a stormwater ordinance that prohibits illicit discharges to the drainage network. This is the most straightforward way to regulate illicit discharges. Other options are to use plumbing or health codes. However, it is difficult to modify plumbing codes in North Carolina because they are established by the state. Using health codes is problematic because they may not provide protection for non-drinking water.

Before you begin writing the ordinance, decide which of your departments will be responsible for implementing the IDDE program. As you make this decision, remember that field staff play a critical role in the IDDE program as they walk streams, assess outfalls, respond to complaints and handle enforcement. Tracking and public education are also important component of the IDDE program. One creative solution to housing the IDDE program was implemented by Raleigh. In the early 1990s, Raleigh created a Water Quality Group (WQG) within the Public Works Department to be responsible for surface water quality across the City and to ensure compliance with the City’s Phase I permit. Prior to that, various departments within city government handled water quality issues.

Some key components that should be addressed to ensure full authority to prevent and correct illicit discharges include the following:

  • Define what is illicit & prohibit illicit discharges
  • Provisions for access and inspection
  • Require removal of illicit discharges
  • Establish enforcement tools

Define what is illicit & prohibit illicit discharges

The ordinance should clearly define illicit discharges and clearly state that they are prohibited. You can provide a short definition or a list of specific substances and practices. If you provide a detailed list, be sure there is a qualifying statement that includes polluting discharges not specifically listed.

Illicit connections should also be defined to include pipes, drains, open channels or other conveyances that have the potential to allow an illicit discharge to enter they storm drain system. The prohibition of illicit discharges should be made retroactive to include connections made in the past whether or not the connection was permissible at the time.

The ordinance should also identify categories of non-stormwater discharges that may be allowable to the stormwater collection system.

Provisions for access and inspection

The right of access to private property for inspections is an essential provision. The ordinance should provide for guaranteed right of entry for routine inspections or to investigate a suspected discharge. The ordinance should clarify that right of entry applies to all land uses in the community and that proof of discharge is not required to obtain entry. It should also state the responsibility of the property owner to disarm security systems and remove obstructions to safe and easy access. Enforcement actions should be established for property owners that refuse access, including the ability to obtain a search warrant through the court system.

Require removal of illicit discharges

The ordinance needs to require removal of illicit discharges and set up appropriate timeframes for removal.

Establish enforcement tools

Potential enforcement tools can range from warnings to criminal prosecution. The choice of enforcement tools should be based on volume and type of discharge, its impact on water quality and whether it was intentional or accidental. In addition, it is helpful to spell out the specific activities that trigger greater enforcement. For more detailed suggestions about enforcement, see the Center for Watershed Protection’s Table of IDDE Enforcement Tools.

Example ordinances

Phase II’s have the advantage of numerous example IDDE ordinances, including:

For more detailed information on this topic, check out Chapter 4 of the Center for Watershed Protection IDDE Guidance Manual.

 

Discharges that may be allowable to the stormwater collection system

SURFACE WATER

  • Diverted stream flows
  • Springs
  • Flows from riparian habitats and wetlands

GROUND WATER

  • Uncontaminated rising ground water
  • Uncontaminated ground water
  • Uncontaminated pumped ground water
  • Foundation and footing drains
  • Water from crawl space pumps
  • Roof runoff piped to streams
  • Infiltration to stormwater collection system

POTABLE WATER (water wasters)

  • Discharges from potable water sources
  • Irrigation water
  • Landscape irrigation
  • Lawn watering
  • Uncontaminated air conditioning condensation
  • Waterline flushing
  • Dechlorinated backwash and draining associated with swimming pools
  • Street wash water
  • Fire fighting emergency activities
  • Non-commercial car washing
  • Wash water from the cleaning of buildings (interior or exterior?)
  • NPDES permitted discharges
     

Discharges that are not allowable to the stormwater collection system

  • Dumping of oil, anti-freeze, paint, cleaning fluids
  • Commercial car wash
  • Industrial discharges
  • Contaminated foundation drains
  • Cooling water unless no chemicals added and has NPDES permit
  • Washwater from commercial / industrial activities
  • Sanitary sewer discharges
  • Septic tank discharges
  • Washing machine discharges
  • Chlorinated backwash and draining associated with swimming pools

 

Types of IDDE Enforcement Tools

Type of Enforcement Action
Description
Written warning with voluntary compliance
  • Applies to first time, minor violations (field staff should have the authority to do this)
Written notice of violation ordering compliance
  • Should clearly state description of remedial measure necessary and time schedule, penalties assessed if it doesn’t happen, and timeframe for appeal
Administrative penalties
  • Daily financial penalty imposed by a responsible department for each day violation remains unfixed
Civil Penalties
  • Daily financial penalty imposed by judicial authority for each day violation remains unfixed
Compensatory action
  • In lieu of enforcement proceedings or penalties, impose alternative compensatory action, e.g., storm drain stenciling, etc.
Criminal Prosecution
  • Applied to intentional and flagrant violations of ordinance
  • Each day discharge continues is typically a separate offense
  • Can result in fines and imprisonment
Cost of abatement of the violation / property liens
  • Applies when jurisdiction remedies the discharge or conducts cleanup, but may also be used to recoup administrative costs
  • May constitute a property lien if not paid within certain timeframe
Emergency cease and desist order
  • Applies when ordinance continues to be violated
  • Requires immediate compliance with ordinance by halting operations / terminating discharges
  • May be a written or verbal order to remove illicit discharge
Suspension of water or sewer service
  • Applied in emergency situations to immediately discontinue discharge to MS4
  • May be applied as enforcement measure when property owner does not comply / fix the problem in a timely measure
Stop work order
  • Typically applies to discharges associated with construction activity
  • No further work can be done until compliance is achieved