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The Federal Clean Water Act establishes standards for surface water and makes it unlawful to discharge pollutants into the Waters of the United States, unless permitted. Embedded within this Act and administered by the United States Environmental Protection Agency (EPA) is the National Pollutant Discharge and Elimination (NPDES) permit program which establishes rules and procedures related to the permitting process.

In New York State, the NPDES program is administered by the New York State Department of Conservation (NYSDEC). Called the State Pollutant Discharge and Elimination System (SPDES) permit program.

In Albany County, as of 2011, there are 477 active SPDES Permits, and of these 319 focus on stormwater discharges. This 19 fold increase in regulatory responsibilities represents both an expansion into stormwater related permits and a more informed understanding of what causes waterways in Albany County to be polluted. Increasingly, due to the complexity of these SPDES permits and need to address targeted pollution removal goals, the management of these many permits strongly argues for a watershed approach.  Such a strategy is strongly supported by EPA and an understanding of local watershed boundaries (Albany County Watersheds Stormwater Program Map) is helpful in that regard.

Critical as well is ongoing, program oriented inter-municipal cooperation, all components of the Stormwater Coalition of Albany County. Together, supportive elected officials, Coalition program participants, MS4/municipal staff, and others pro-actively addressing water quality issues voluntarily, or through their own SPDES permits are living the Coalition motto, which is to “become a solution to water pollution.”

ALBANY COUNTY INTER-MUNICIPAL AGREEMENT TO CONTINUE AN EXISTING COALITION FOR COOPERATION ON ISSUES RELATED TO STORM WATER MANAGEMENT

Members of Stormwater Coalition of Albany County

The NYSDEC SPDES General Permit for Stormwater Discharges from Municipal Separated Storm Sewer System (MS4) Permit No. GP-0-10-002 includes six minimum control measures: public education and outreach; public involvement/participation; illicit discharge detection and elimination (IDDE); construction site stormwater runoff control; post-construction stormwater management; and pollution prevention/good housekeeping for municipal operations. Regulated entities, often referred to as “MS4s”, need to develop and implement a program which addresses each of those control measures. While there is some program flexibility, there are also specific tasks listed in the permit.

If a municipality fails to adopt any of these local laws and fails to administer related MS4 Permit requirements, they are in violation of their own SPDES permit and subject to Clean Water Act enforcement action. Thus the legal accountability for MS4/municipalities is multi-layered, as is the legal accountability for individuals engaged in construction activity.

Recently, NYSDEC released Technical Operational Guidance Series 1.4.2 regarding Compliance and Enforcement of SPDES Permits, which makes explicit the consequences of non-compliance for all SPDES Permits, not just the MS4 and Construction Activity Permit.

City of Albany Municipal Code Chapter 133

Article XIV. Stormwater Management and Erosion Control

[Added 8-4-2008 by LL. No. 3-2008]

§ 133-100. Findings of fact.

  1. Development of real property and associated increases in site impervious cover often alter the hydrologic response of local watersheds and increase stormwater runoff rates and volumes, flooding, stream channel erosion, or sediment transport and deposition.
  2. This stormwater runoff contributes to increased quantities of waterborne pollutants, including siltation of aquatic habitat for fish and other desirable species.
  3. Clearing and grading during construction tends to increase soil erosion and add to the loss of native vegetation necessary for terrestrial and aquatic habitat. Improper clearing of vegetation and burial of vegetative and other wastes can result in unstable soil conditions and the production of noxious gases through decomposition of said wastes.
  4. Improper design and construction of stormwater management practices can increase the velocity of stormwater runoff, thereby increasing streambank erosion and sedimentation.
  5. Substantial economic losses can result from these adverse impacts on the waters of the municipality.
  6. Stormwater runoff, soil erosion and nonpoint source pollution can be controlled and minimized through the regulation of stormwater runoff from development activities.
  7. The regulation of stormwater runoff discharges from real property activities in order to control and minimize increases in stormwater runoff rates and volumes, soil erosion, stream channel erosion, and nonpoint source pollution associated with stormwater runoff is in the public interest and will minimize threats to public health and safety.
  8. Regulation of development activities by means of performance standards governing stormwater management and site design will produce development compatible with the natural functions of a particular site or an entire watershed and thereby mitigate the adverse effects of erosion and sedimentation from development.

§ 133-103. Applicability.

  1. This article shall be applicable to all real property within the City of Albany.
  2. All land development activities subject to subdivision and/or site plan review and approval under this chapter shall be reviewed subject to the standards contained in this article. In this instance, the SWPPP shall be submitted along with the subdivision and/or site plan application.
  3. All land development activities not subject to subdivision and/or site plan review shall be required to submit an SWPPP to the Stormwater Management Officer, who shall review the SWPPP for compliance with the requirements of this article. Regardless of the size of the land development activity, at a minimum an erosion and sediment control plan must be filed (and approved) if fill is deposited within 100 feet of a stream, surface water or wetland. A plan is also needed if fill is going to be deposited on a slope of 15° or more or if filling in excess of 30 cubic yards at any one time on a parcel.

§ 133-105. Stormwater pollution prevention plans.

  1. No approval of a land development activity shall be issued until a stormwater pollution prevention plan (SWPPP) has been accepted in accordance with the specifications in this article.
  2. All SWPPPs shall, at a minimum, have a sediment and erosion control plan which shall provide the following background information and erosion and sediment controls. Development within impaired watersheds or where a five-acre variance request is submitted to the DEC may require additional data.
  3. In addition to the SWPPP described above, land development activities meeting any of the three conditions below shall also be required to provide a report as to water quantity and water quality controls (post construction stormwater runoff controls):
    1. Stormwater runoff from project activity disturbing between one acre and five acres of land during the course of the project, exclusive of the construction of single-family residences and construction activities at agricultural properties; or
    2. Stormwater runoff from land development activities disturbing five or more acres; or
    3. Stormwater runoff from land development activities discharging a pollutant of concern to either an impaired water identified on the Department’s 303(d) list of impaired waters or a total maximum daily load (TMDL) designated watershed for which pollutants in stormwater have been identified as a source of the impairment.
  4. The additional report to be provided for post construction stormwater controls shall include:
    1. Description of each post construction stormwater management practice.
    2. Site map/construction drawing(s) showing the specific location(s) and size(s) of each post construction stormwater management practice.
    3. Hydrologic and hydraulic analysis for all structural components of the stormwater management system for the applicable design storms.
    4. Comparison of post development stormwater runoff conditions with predevelopment conditions.
    5. Dimensions, material specifications and installation details for each post construction stormwater management practice.
    6. Maintenance schedule to ensure continuous and effective operation of each post construction stormwater management practice.
    7. Maintenance easements to ensure access to all stormwater management practices at the site for the purpose of inspection and repair. Easements shall be recorded on the plan and shall remain in effect with transfer of title to the property.
    8. Inspection and maintenance agreement binding on all subsequent landowners served by the on-site stormwater management measures in accordance with this article.
  5. If the land development activity meets either of the conditions described in Subsection C(2) or (3) of this section (activity disturbs five acres or more or runoff discharges a pollutant of concern to either an impaired water or a TMDL designated watershed), then the SWPPP shall be prepared by a landscape architect, certified professional in erosion and sediment control (CPESC), soil scientist, or professional engineer and must be signed by the professional preparing the plan who shall certify that the design of all stormwater management practices meet the requirements in this article.
  6. Other environmental permits. The applicant shall assure that all other applicable environmental permits have been or will be acquired for the land development activity prior to approval of the final stormwater design plan.
  7. Contractor certification.
    1. Each contractor and subcontractor identified in the SWPPP who will be involved in soil disturbance and for stormwater management practice installation shall sign and date a copy of the following certification statement before undertaking any land development activity: “I certify under penalty of law that I understand and agree to comply with the terms and conditions of the Stormwater Pollution Prevention Plan. I also understand that it is unlawful for any person to cause or contribute to a violation of water quality standards.”
    2. The certification must include the name and title of the person providing the signature, address and telephone number of the contracting firm; the address (or other identifying description) of the site; and the date the certification is made.
    3. The certification statement(s) shall become part of the SWPPP for the land development activity.
    4. A copy of the SWPPP shall be retained at the site of the land development activity during construction from the date of initiation of construction activities to the date of final stabilization.

§ 133-107. Maintenance, inspection and repair of stormwater facilities.

  1. Maintenance and inspection during construction.
    1. The City Engineer or his/her designee shall have the power to make necessary inspections. The Engineer may employ, at his/her discretion, a construction inspector to act as his/her agent for the purpose of assuring satisfactory completion of permit requirements. The inspection provided may include, but not necessarily be limited to, all grading, drainage, stormwater management systems and erosion control measures and may include soil testing as necessary to determine compliance with the provisions of this article and the conditions of the approval.
    2. The City Engineer will determine an amount sufficient to defray the costs of such inspection. The applicant shall deposit said amount of moneys with the chief fiscal officer in an escrow account prior to the issuance of the approval. The City Engineer shall be authorized to pay the costs of inspection by his/her construction inspector from the moneys on deposit in said account and shall return to the applicant any such moneys, including interest, on balance in the account at the time of completion of the permitted site work, provided that all inspection costs have been paid. If the moneys on deposit prove to be insufficient for the costs of required inspections, the City Engineer shall require that the applicant deposit additional moneys in an amount sufficient to satisfy the costs of such additional inspections as may be required. If applicant fails to deposit additional moneys in a timely manner, any costs incurred by the City shall be charged to the applicant.
    3. The applicant or developer of the land development activity or its representative shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the applicant or developer to achieve compliance with the conditions of this article. Sediment shall be removed from sediment traps or sediment ponds whenever their design capacity has been reduced by 50%.
    4. For land development activities meeting any of the conditions set forth in§ 133-105C (project activity of between one acre and five acres of land during course of job, exclusive of one-family residences and construction activities at agricultural properties; stormwater runoff from land development activities disturbing five or more acres, or stormwater runoff from land development activities discharging a pollutant of concern to either an impaired water or a TMDL designated watershed), the applicant shall have a qualified professional conduct site inspections and document the effectiveness of all erosion and sediment control practices every seven days and within 24 hours of any storm event producing 0.5 inch of precipitation or more. Inspection reports shall be maintained in a site logbook.
  2. Maintenance easement. Prior to the issuance of any approval that has a stormwater management facility as one of the requirements, the applicant or developer must execute a maintenance easement agreement that shall be binding on all subsequent landowners served by the stormwater management facility. The easement shall provide for access to the facility at reasonable times for periodic inspection by the City of Albany to ensure that the facility is maintained in proper working condition to meet design standards and any other provisions established by this article. The easement shall be recorded in the office of the Albany County Clerk after approval by the Corporation Counsel.
  3. Maintenance after construction. The owner or operator of permanent stormwater management practices installed in accordance with this article shall ensure they are operated and maintained to achieve the goals of this article. Proper operation and maintenance also includes, as a minimum, the following:
    1. A preventive/corrective maintenance program for all critical facilities and systems of treatment and control (or related appurtenances) which are installed or used by the owner or operator to achieve the goals of this article.
    2. Written procedures for operation and maintenance and training new maintenance personnel.
    3. Discharges from the SMPs shall not exceed design criteria or cause or contribute to water quality standard violations in accordance with § 133-106C (water quality standards).
  4. Maintenance agreements. The City of Albany shall promulgate a formal maintenance agreement for stormwater management facilities which are going to be privately owned after construction. The agreement shall be binding on all subsequent landowners and recorded in the office of the Albany County Clerk as a deed restriction on the property prior to final plan approval. The standard maintenance agreement shall be on file in the office of the Stormwater Management Officer. The City of Albany Water Board, in lieu of a maintenance agreement, at its sole discretion, may accept dedication of any existing or future stormwater management facility, provided such facility meets all the requirements of this article and includes adequate and perpetual access and sufficient area, by easement or otherwise, for inspection and regular maintenance.
§ 133-108. Administration and enforcement; penalties for offenses.
  1. Inspection.
    1. In addition to the DEC inspections required to be performed by the applicant, the City of Albany Stormwater Management Officer, or her designee, may require such inspections as necessary to determine compliance with this article and may either approve that portion of the work completed or notify the applicant wherein the work fails to comply with the requirements of this article and the stormwater pollution prevention plan (SWPPP) as approved. In addition, a preconstruction meeting is necessary and shall be held as directed by the Stormwater Management Officer. To obtain inspections, the applicant shall notify the City Engineer at least 48 hours before any of the following, as required by the stormwater management Officer:
      1. Start of construction.
      2. Installation of sediment and erosion control measures.
      3. Completion of site clearing.
      4. Completion of rough grading.
      5. Completion of final grading.
      6. Close of the construction season.
      7. Completion of final landscaping.
      8. Successful establishment of landscaping in public areas.
    2. If any violations are found, the applicant and developer shall be notified in writing of the nature of the violation and the required corrective actions. No further work shall be conducted, except for site stabilization, until any violations are corrected and all work previously completed has received approval by the Stormwater Management Officer.
  2. Inspection of stormwater facilities after project completion. Inspection programs shall be established on any reasonable basis, including but not limited to routine inspections; random inspections; inspections based upon complaints or other notice of possible violations; inspection of drainage basins or areas identified as higher-than-typical sources of sediment or other contaminants or pollutants; inspections of businesses or industries of a type associated with higher-than-usual discharges of contaminants or pollutants or with discharges of a type which are more likely than the typical discharge to cause violations of state or federal water or sediment quality standards or the SPDES stormwater permit; and joint inspections with other agencies inspecting under environmental or safety laws. Inspections may include but are not limited to reviewing maintenance and repair records; sampling discharges, surface water, groundwater, and material or water in drainage control facilities; and evaluating the condition of drainage control facilities and other Stormwater Management Practices.
  3. Submission of reports and record plans. The City of Albany Stormwater Management Officer may require monitoring and reporting from entities subject to this article as are necessary to determine compliance with this article. All applicants are required to submit record plans for any Stormwater Management Practices located on site after final construction is completed. The plan must show the final design specifications for all stormwater management facilities and must be certified by a licensed professional.
  4. Right-of-entry for inspection. When any new stormwater management facility is installed on private property or when any new connection is made between private property and the public stormwater system, the landowner shall grant to the City of Albany the right, and it shall be the right of the stormwater management Officer or his/her designee, to enter the property at reasonable times and in a reasonable manner for the purpose of inspection.
  5. Construction completion guarantee. In order to ensure the full and faithful completion of all land development activities related to compliance with all conditions set forth by the City of Albany in its approval of the stormwater pollution prevention plan, the City may require the applicant or developer to provide, prior to construction, a performance bond, cash escrow, or irrevocable letter of credit from an appropriate financial or surety institution which guarantees satisfactory completion of the project and names the City of Albany as the beneficiary. The security shall be in an amount to be determined by the City based on submission of final design plans, with reference to actual construction and landscaping costs. The performance guarantee shall remain in force until the surety is released from liability by the City of Albany, provided that such period shall not be less than one year from the date of final acceptance or such other certification that the facility(ies) have been constructed in accordance with the approved plans and specifications and that a one-year inspection has been conducted and the facilities have been found to be acceptable to the City. Per annum interest on cash escrow deposits shall be reinvested in the account until the surety is released from liability.
  6. Maintenance guarantee. Where stormwater management and erosion and sediment control facilities are to be operated and maintained by the developer or by a corporation that owns or manages a commercial or industrial facility, the developer, prior to construction, may be required to provide the City of Albany with an irrevocable letter of credit from an approved financial institution or surety to ensure proper operation and maintenance of all stormwater management and erosion control facilities both during and after construction and until the facilities are removed from operation. If the developer or landowner fails to properly operate and maintain stormwater management and erosion and sediment control facilities, the City of Albany may draw upon the account to cover the costs of proper operation and maintenance, including engineering and inspection costs.
  7. Recordkeeping. The City of Albany may require entities subject to this article to maintain records demonstrating compliance with this portion of the City Code. Upon request, such records shall be made available to the Stormwater Management Officer for inspection or copying.
  8. Notice of violation.
    1. When the City of Albany determines that a project is not being carried out in accordance with the requirements of this article, it may issue a written notice of violation to the landowner. The notice of violation shall contain:
      1. The name and address of the landowner, developer, and/or applicant.
      2. The address, when available, or a description of the building. structure or land upon which the violation is occurring.
      3. A statement specifying the nature of the violation.
      4. A description of the remedial measures necessary to bring the project into compliance with this article and a time schedule for the completion of such remedial action.
      5. A statement of the penalty or penalties that shall or may be assessed against the person to whom the notice of violation is directed.
      6. A statement that the determination of violation may be appealed to the Board of Zoning Appeals by filing a written notice of appeal within 10 days of service of notice of violation by personal delivery or by certified mail to the last known address of the landowner, developer, and/or applicant.
    2. If it is certified by the Stormwater Management Officer that a bona fide emergency exists, the City shall have the right to cause any necessary remediation or repairs to be made to protect the public interests, and the costs assessed to the landowner, developer, and/or applicant pursuant to this article, upon notice and an opportunity to be heard. Where access to the property is denied by the landowner, a warrant shall be obtained from a court of competent jurisdiction.
  9. Stop-work orders. The City of Albany may issue a stop-work order for violations of this article. Persons receiving a stop-work order shall be required to halt all work of any nature on the site, except those activities that address the violations leading to the stop-work order. The stop-work order shall be in effect until the City of Albany confirms that the project is in compliance and the violation has been satisfactorily addressed. Failure to address a stop-work order in a timely manner may result in civil, criminal or monetary penalties in accordance with the enforcement measures authorized in this article or otherwise pursuant to law.
  10. Violations. Any land development activity that is commenced or is conducted contrary to this article may be restrained by injunction or otherwise abated in a manner provided by law.
  1. K Penalties. In addition to or as an alternative to any penalty provided herein or by law, any person who violates the provisions of this article shall be guilty of a violation punishable by a fine not exceeding $250 or imprisonment for a period not to exceed 15 days, or both, for a first offense; upon a conviction of a second or subsequent violation of this article within five years, a person shall be guilty of a misdemeanor punishable by a fine not less than $350 nor more than $5,000 or imprisonment for a period not to exceed six months, or both. Each five-day period of a continued violation shall constitute a separate violation and may be charged as such.
  1. Withholding of certificate of occupancy. If any building or land development activity is installed or conducted in violation of this article, the Stormwater Management Officer may prevent the occupancy of said building or land.
  2. Restoration of lands. Any violator may be required to restore land to its undisturbed condition. In the event that restoration is not undertaken within a reasonable time after notice, the City of Albany may take necessary corrective action, the cost of which shall become a lien upon the property until paid.

Storm Water Management Program (SWMP) Stormwater Coalition of Albany County

I. SWMP Development‐Background, Participants, and Local Regulatory Geography Background This Storm Water Management Program (SWMP) was developed by members of the Stormwater Coalition of Albany County, all regulated MS4s residing in Albany County. It generally spans the time frame of the current NYSDEC SPDES General Permit for Stormwater Discharges from Municipal Separated Storm Sewer Systems (MS4s) Permit No. GP‐0‐10‐002, which went into effect May 1, 2010 and expires April 30, 2015. While it is a collaborative document, the listed implementation tasks and related measurable goals are specific for each Coalition member. As needed there are also goals for Coalition staff which serve to define more clearly the role of the Coalition.

The SWMP presented here conforms to the wording of the MS4 Permit which states that a SWMP needs to include measurable goals for each Best Management Practice (BMP) which 1) describe the BMP/measurable goal; 2) includes time lines, schedules, and milestones for development and implementation; 3) includes quantifiable goals to assess progress over time; and 4) describes how he covered entity will address pollutants of concern (POCs). SWMP Plans, according to NYSDEC include detailed written explanations of all management practices, activities, and other techniques the covered entity has developed, planned, and implemented for their SWMP. This particular SWMP, while a mandated document, also serves an administrative purpose which is to combine into one document multiple smaller work plans generated by the Coalition for grant administration purposes and detailed in the Coalition’s inter‐municipal agreement. As this is a public document, hopefully a better articulation of who does what to implement the MS4 permit will make more transparent an often confusing regulation.

Post Construction Stormwater Management (MCM5)

The Post-Construction Storm Water Management minimum control measure consists of Best Management Practices (BMP’s) that focus on the prevention or minimization of water quality impacts from new development and redevelopment projects that disturb greater than or equal to one acre, including projects less than one acre that are part of a larger common plan of development or sale that discharge into the small MS4.

The program must provide equivalent protection to the NYSDEC SPDES General Permit for Stormwater Discharges from Construction Activities (either GP-02-02, GP-0-08-001, or GP-0-10-001), unless more stringent requirements are contained within the MS4 Permit. The BMPs describe structural and/or non-structural practices; the legal authority which will be used to address post-construction runoff from new development and redevelopment projects; procedures for SWPPP review; and procedures to ensure long term operation and maintenance of BMPs.

Covered entities must maintain an inventory of post-construction practices and when developing planning documents and land use regulations, consider smart growth principles, natural resource protection, impervious area reduction, maintaining hydrological conditions in developments, riparian buffers, or set back distances for protection of environmentally sensitive areas, such as streams, wetlands, and erodible soils. Covered entities are required to review projects according to Green Infrastructure practices defined in the Design Manual and are encouraged to review, and revise where appropriate local codes and laws that include provisions that preclude green infrastructure or construction techniques that minimize or reduce pollutant loadings. Covered entities must utilize available training to educate municipal boards, Planning and Zoning Boards regarding low impact development principles, better site design, and green infrastructure applications. Covered entities may include in the SWMP Plan provisions for developing a banking and credit system.

New York State Stormwater Management Design Manual Chapter 3

August 2010

3.5 Maintenance Requirements

The responsibility for implementation of long term operation and maintenance of a post-construction stormwater management practice shall be vested with a responsible party by means of a legally binding and enforceable mechanism such as a maintenance agreement, deed covenant or other legal measure. This mechanism shall protect the practice from neglect, adverse alteration and/or unauthorized removal.

The mechanism and Operation and Maintenance (O&M) plan must be included in the SWPPP.

At a minimum, the O&M plan must address each of the following:

1. An owner of a post-construction stormwater management practice, including the runoff reduction practices and SMPs included in this Design Manual, shall erect or post, in the immediate vicinity of the stormwater management practice, a conspicuous and legible sign of not less than 18 inches by 24 inches (or 10″X12″ for footprints smaller than 400 sf) bearing the following information:

  • STORMWATER MANAGEMENT PRACTICE – (name of the practice)

  • Project Identification – (SPDES Construction Permit #, other)

  • Must Be Maintained In Accordance With O&M Plan

  • DO NOT REMOVE OR ALTER

2. Identification of the entity that will be responsible for long term operation and maintenance of the stormwater management practices.

3. Identification of the mechanism(s) that will be used to ensure long term operation and maintenance of the stormwater management practices (Deed covenant, easements/rights-of-way, executed maintenance agreement, etc.). Include a copy of such mechanism.

4. A copy of the schematics of the practice, with the measurements of design specifications clearly defined.

5. A list of maintenance requirements (already defined in this Design Manual and the additional site specific requirements), proper frequency, and a maintenance log for tracking and observation.

Links

Albany Municipal Code – CH. 133: Article XIV Stormwater Management and Erosion Control

Albany Stormwater Management Program