Wisconsin Legislature: Chapter NR 152 Appendix A

S. 12* Inspection

S. 13* Enforcement

S. 14* Appeals

(1) Board of [Appeals or Adjustment]

(2) Who May Appeal

S. 15* Severability

S. 16* Effective Date

Note to Users: An asterisk ( * ) denotes subsequent numbering and references to numbered sections or subsections that would be affected by exclusion of the optional text.

MODEL CONSTRUCTION SITE EROSION AND SEDIMENT CONTROL ORDINANCE

AN ORDINANCE TO CREATE CHAPTER [NUMBER] OF THE [CODE OR ORDINANCE] OF THE [NAME OF MUNICIPALITY] RELATING TO THE CONTROL OF CONSTRUCTION SITE EROSION AND SEDIMENTATION RESULTING FROM LAND DISTURBING CONSTRUCTION ACTIVITIES

FOREWORD.

Use of this ordinance will foster consistent, statewide application of the construction site performance standards for new development and redevelopment contained in sub. III and IV of ch. NR 151, Wis. Adm. Code.

The [governing body (town board of supervisors, county board of supervisors, city council, village board of trustees, or village council)] of the [name of municipality] does hereby ordain that Chapter [number] of the [code or ordinance] of the [name of municipality] is created to read as follows:

[CHAPTER]

CONSTRUCTION SITE EROSION AND SEDIMENT CONTROL

S. 01 AUTHORITY.

(1) This ordinance is adopted under the authority granted by s. [59.693 (for counties); 60.627 (for towns); 61.354 (for villages); or 62.234 (for cities)], Wis. Stats. This ordinance supersedes all provisions of an ordinance previously enacted under s. [59.69, 60.62, 61.35, or 62.23], Wis. Stats., that relate to construction site erosion and sediment control. Except as otherwise specified in s. [59.693, 60.627, 61.354, or 62.234], Wis. Stats., s. [59.69, 60.62, 61.35, or 62.23], Wis. Stats., applies to this ordinance and to any amendments to this ordinance.

Note to Users: There may be instances when this ordinance does not supersede other ordinances relating to construction erosion control previously adopted by the governing body.

(2) The provisions of this ordinance are deemed not to limit any other lawful regulatory powers of the [governing body].

(3) The [governing body] hereby designates the [administering authority] to administer and enforce the provisions of this ordinance.

(4) The requirements of this ordinance do not preempt more stringent erosion and sediment control requirements that may be imposed by any of the following:

(a) Wisconsin Department of Natural Resources administrative rules, permits, or approvals, including those authorized under ss. 281.16 and 283.33, Wis. Stats.

(b) Targeted non-agricultural performance standards promulgated in rules by the Wisconsin Department of Natural Resources under s. NR 151.004, Wis. Adm. Code.

S. 02 FINDINGS OF FACT.

The [governing body] acknowledges that runoff from land disturbing construction activity carries a significant amount of sediment and other pollutants to the waters of the state in [name of municipality].

S. 03 PURPOSE.

It is the purpose of this ordinance to maintain safe and healthful conditions; prevent and control water pollution; prevent and control soil erosion and sediment discharge; protect spawning grounds, fish, and aquatic life; control building sites, placement of structures, and land uses; preserve ground cover and scenic beauty; and promote sound economic growth by minimizing the amount of sediment and other pollutants carried by runoff or discharged from land disturbing construction activity to waters of the state in the [name of municipality].

S. 04 APPLICABILITY AND JURISDICTION.

(1) APPLICABILITY.

(a) Except as provided under par. (b), this ordinance applies to any construction site as defined under S. 05 (6).

(b) This ordinance does not apply to any of the following:

1. Transportation facilities, except transportation facility construction projects that are part of a larger common plan of development such as local roads within a residential or industrial development.

Note to Users: Transportation facility projects directed and supervised by the Wisconsin Department of Transportation are not subject to this ordinance. Notwithstanding this ordinance, a municipality is required to comply with the construction site transportation facility performance standards in subch. IV of ch. NR 151, Wis. Adm. Code, for its own transportation-related projects. If a municipality has regulatory authority over the activities of another local unit of government, it may be appropriate to include the construction site transportation facility performance standards in ss. NR 151.225 (3) and 151.23 (4m), Wis. Adm. Code, in its ordinance if those types of projects occur.

2. A construction project that is exempted by federal statutes or regulations from the requirement to have a national pollutant discharge elimination system permit issued under ch. 40, Code of Federal Regulations, part 122, for land disturbing construction activity.

3. Nonpoint discharges from agricultural facilities and practices.

4. Nonpoint discharges from silviculture activities.

5. Routine maintenance for project sites that have less than 5 acres of land disturbance if performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility.

(c) Notwithstanding the applicability requirements in par. (a), this ordinance applies to construction sites of any size that, as determined by the [administering authority], are likely to result in runoff that exceeds the safe capacity of the existing drainage facilities or receiving body of water, that causes undue channel erosion, or that increases water pollution by scouring or transporting of particulate.

Note to Users: The municipality may want to consider separate legal authority to address situations when persons other than the responsible party destroy or render ineffective Best Management Practices (BMPs) constructed to meet the performance standards of this ordinance.

(2) JURISDICTION.

This ordinance applies to [land disturbing construction activity on lands within the boundaries and jurisdiction of the [name of municipality];

land disturbing construction activities on lands within the boundaries and jurisdiction of the [name of municipality], as well as the extraterritorial division of land subject to an ordinance enacted pursuant to s. 236.45 (2) and (3), Wis. Stats.;

land disturbing construction activities on lands within the boundaries and jurisdiction of the [name of municipality], as well as all lands located within the extraterritorial plat approval jurisdiction of [name of municipality], even if plat approval is not involved].

Note to Users: These options differ in the amount of land area covered by this ordinance and may have ramifications for enforcement authority. For counties, the first option is the only option since counties do not have extraterritorial authority. Under s. 59.693 (10), Wis. Stats., if a county ordinance exists at the time of annexation, then the municipal ordinance must be at least as restrictive as the county ordinance.

(3) EXCLUSIONS.

This ordinance is not applicable to activities conducted by a state agency, as defined under s. 227.01 (1), Wis. Stats.

S. 045 SUBDIVISION AND NUMBERING OF THIS ORDINANCE; WORD USAGE

(1) This ordinance is divided into sections designated by boldface numerals and abbreviated “S.”. Sections may be divided into subsections designated by numerals in parentheses and abbreviated “sub.” Subsections may be divided into paragraphs designated by lower case letters in parentheses and abbreviated “(par.).” Paragraphs may be divided into subdivisions designated by numerals followed by a period and abbreviated “ subd.” Subdivisions may be further subdivided into paragraphs designated by lower case letters followed by a period and those paragraphs may lowercase Roman numerals, which are abbreviated in the form “subd. 1. a.” and “subd. 1. a. i.,” respectively. Reference to a “section,” “subsection,” “paragraph,” or “subdivision” includes all divisions of the referenced section, subsection, paragraph, or subdivision.

(2) The singular includes the plural, and the plural includes the singular. The present tense of a verb includes the future when applicable. The future perfect tense includes past and future tenses.

S. 05 DEFINITIONS. In this ordinance:

(1) “ Administering authority” means a governmental employee, or a regional planning commission empowered under s. [59.693, 60.627, 61.354, or 62.234], Wis. Stats., that is designated by the [governing body] to administer this ordinance.

(2) “ Agricultural facilities and practices” has the meaning given in s. 281.16 (1), Wis. Stats.

(3) “ Best management practice” or “BMP” means structural or non-structural measures, practices, techniques, or devices employed to avoid or minimize soil, sediment, or pollutants carried in runoff to waters of the state.

(4) “ Business day” means a day the office of the [administering authority] is routinely and customarily open for business.

(5) “ Cease and desist order” means a court-issued order to halt land disturbing construction activity that is being conducted without the required permit or in violation of a permit issued by the [administering authority].

(6) “ Construction site” means an area upon which one or more land disturbing construction activities occur, including areas that are part of a larger common plan of development or sale when multiple separate and distinct land disturbing construction activities may be taking place at different times on different schedules but under one plan. A long-range planning document that describes separate construction projects, such as a 20-year transportation improvement plan, is not a common plan of development.

(7) “ Design storm” means a hypothetical discrete rainstorm characterized by a specific duration, temporal distribution, rainfall intensity, return frequency, and total depth of rainfall.

(8)* “Division of land” means the creation from one parcel of [number] or more parcels or building sites of [number] or fewer acres each in area when such creation occurs at one time or through the successive partition within a 5-year period.

Note to Users: This definition is only needed depending on the type of jurisdiction selected under S. 04 (2) above.

(9) “ Erosion” means the process by which the land's surface is worn away by the action of wind, water, ice, or gravity.

(10) “ Erosion and sediment control plan” means a comprehensive plan developed to address pollution caused by erosion and sedimentation of soil particles or rock fragments during construction.

(11)* “Extraterritorial” means the unincorporated area within 3 miles of the corporate limits of a first, second, or third class city, or within 1.5 miles of a fourth class city or village.

Note to Users: This definition is only needed depending on the type of jurisdiction selected under S. 04 (2) above.

(12) “ Final stabilization” means that all land disturbing construction activities at the construction site have been completed and that a uniform perennial vegetative cover has been established with a density of at least 70 percent of the cover for the unpaved areas and areas not covered by permanent structures or that employ equivalent permanent stabilization measures.

(13) “ Land disturbing construction activity” means any man-made alteration of the land surface resulting in a change in the topography or existing vegetative or non-vegetative soil cover that may result in runoff and lead to an increase in soil erosion and movement of sediment into waters of the state. “Land disturbing construction activity” includes clearing and grubbing, demolition, excavating, pit trench dewatering, filling, and grading activities.

(14) “ Landowner” means any person holding fee title, an easement or other interest in property that allows the person to undertake cropping, livestock management, land disturbing construction activity, or maintenance of storm water BMPs on the property.

(15) “ Maximum extent practicable” means the highest level of performance that is achievable but is not equivalent to a performance standard identified in this ordinance as determined in accordance with S. 055 of this ordinance.

(16) “ Performance standard” means a narrative or measurable number specifying the minimum acceptable outcome for a facility or practice.

(17) “ Permit” means a written authorization made by the [administering authority] to the applicant to conduct land disturbing construction activity or to discharge post-construction runoff to waters of the state.

(18) “ Pollutant” has the meaning given in s. 283.01 (13), Wis. Stats.

(19) “ Pollution” has the meaning given in s. 281.01 (10), Wis. Stats.

(20) “ Responsible party” means the landowner or any other entity performing services to meet the requirements of this ordinance through a contract or other agreement.

(21) “ Runoff” means storm water or precipitation including rain, snow, or ice melt or similar water that moves on the land surface via sheet or channelized flow.

(22) “ Sediment” means settleable solid material that is transported by runoff, suspended within runoff, or deposited by runoff away from its original location.

(23) "Silviculture activity" means activities including tree nursery operations, tree harvesting operations, reforestation, tree thinning, prescribed burning, and pest and fire control. Clearing and grubbing of an area of a construction site is not a “silviculture activity.”

(24) “ Site” means the entire area included in the legal description of the land on which the land disturbing construction activity is proposed in the permit application.

(25) “ Stop work order” means an order issued by the [administering authority] that requires that all construction activity on the site be stopped.

(26) “ Technical standard” means a document that specifies design, predicted performance, and operation and maintenance specifications for a material, device, or method.

(27) “ Transportation facility” means a highway, a railroad, a public mass transit facility, a public-use airport, a public trail, or any other public work for transportation purposes, such as harbor improvements under s. 85.095 (1) (b), Wis. Stats. “Transportation facility” does not include building sites for the construction of public buildings and buildings that are places of employment that are regulated by the Wisconsin Department of Natural Resources pursuant to s. 281.33, Wis. Stats.

(28) “ Waters of the state” includes those portions of Lake Michigan and Lake Superior within the boundaries of this state, and all lakes, bays, rivers, streams, springs, ponds, wells, impounding reservoirs, marshes, watercourses, drainage systems, and other surface water or groundwater, natural or artificial, public or private, within this state or its jurisdiction.

(29) “ Wis. Adm. Code” means the Wisconsin Administrative Code, published under s. 35.93, Wis. Stats.

(30) “ Wis. Stats.” means the Wisconsin Statutes published under s. 35.18 of the Wisconsin Statutes.

S. 055 APPLICABILITY OF MAXIMUM EXTENT PRACTICABLE.

Maximum extent practicable applies when a person who is subject to a performance standard of this ordinance demonstrates to the [administering authority]'s satisfaction that a performance standard is not achievable and that a lower level of performance is appropriate. In making the assertion that a performance standard is not achievable and that a level of performance different from the performance standard is the maximum extent practicable, the responsible party shall take into account the best available technology, cost effectiveness, geographic features, and other competing interests such as protection of public safety and welfare, protection of endangered and threatened resources, and preservation of historic properties.

S. 06 TECHNICAL STANDARDS.

All BMPs required for compliance with this ordinance shall meet design criteria, standards, and specifications based on any of the following:

(1) Design guidance and technical standards identified or developed by the Wisconsin Department of Natural Resources under subch. V of ch. NR 151, Wis. Adm. Code.