City Code Chapter 17.37 is replaced, in its entirety, as follows
Chapter 17.37
DOWNSPOUT DISCONNECTION
17.37.010 Purpose
The purpose of downspout disconnection is to remove stormwater from the combined sewer system in order to reduce the amount of combined sewer overflows which enter the Columbia Slough and Willamette River. Removing stormwater from the combined sewer can reduce the cost of large conveyance, storage, and treatment facilities needed to capture and treat stormwater or combined sewage in order to meet the goals of the Amended Stipulation and Final Order with the Department of Environmental Quality. Flow removal goals, policies and options for disconnection will be determined by the Director depending on the location of the property within the Combined Sewer Overflow area.
17.37.015 Rule Making
A. Public Review. Any rule adopted pursuant to this section shall require a public review process. Not less than thirty days before such public review process, notice shall be given by publication in a newspaper of general circulation. The Office of Neighborhood Involvement shall be notified at least 30 days in advance of the public review process. Such notice shall include the place, time, and purpose of the public review process and location at which copies of the full set of the proposed rules may be obtained.
B. Adoption of Rules.
1. During the public review, a designee of the Director shall hear testimony and receive written comments concerning the proposed rules. The Director shall review the recommendation of his or her designee, taking into consideration the comments received during the public review process and shall either adopt the proposal, modify or reject it.
2. If a substantial modification is made to the rules submitted for public review, the Director may adopt the modification as Interim Rules or shall provide an additional public review prior to adoption.
3. Unless otherwise stated, all rules shall be effective upon adoption by the Director and shall be filed in the Office of the Director.
C. Interim Rules.
1. Notwithstanding paragraphs 17.37.015 A. and B., an interim rule may be adopted without prior notice upon a finding that failure to act promptly will result in serious prejudice to the public interest or the interest of the affected parties. The rule should include the specific reasons for such prejudice.
2. Any rule adopted pursuant to this paragraph shall be effective for a period of not longer than 180 days.
3. After adoption, public notice of interim rules shall be given by publication in a newspaper of general circulation and notice sent to the Office of Neighborhood Involvement. Such notice shall include the location at which copies of the full set of the interim rules may be obtained.
17.37.020 Definitions.
For the purpose of this Chapter, the following definitions shall apply:
A. Downspout. The conductor that conveys storm water from the gutter on the exterior of a building or other structure to another place of disposal.
B. Director. The Director of Environmental Services or his or her designated representative.
C. Owner. Each property’s owner of record according to County assessment and taxation records.
D. Program area. Properties located within the boundaries of the eastside combined sewer overflow area. The program area is shown on the map attached as Figure 7.
E. Eligible property. Property located within the disconnection area that is either:
1. developed for uses covered by the "residential use" category in PCC chapter 33.920; or
2. is developed for uses covered by the "commercial use" category in PCC chapter 33.920, and has site conditions that would allow for safe and effective disconnection as identified in section 17.32.040.
F. Disconnection. Physically plugging or capping the direct stormwater connection to the combined sewer and redirecting the stormwater onto the property either on the surface of the property or under the ground. This may require alterations to gutters, downspouts and landscaping.
1. For properties that have a branch constructed to the edge of the property line from a public separated storm system, disconnection from the combined sewer may be accomplished by direct storm connection through a private lateral to the public storm system. New storm connections to the city sewer or storm system are subject to the Stormwater Management Manual requirements for new connections to public systems.
2. For properties where surface or underground disposal of roof water is not feasible, disconnection may include a curb cut which discharges roof water to a curbed street. New storm connections to the city sewer or storm system are subject to the Stormwater Management Manual requirements for new connections to public systems.
3. New subsurface stormwater facilities are required to meet the requirements of the Stormwater Management Manual.
G. Combined Sewer. A sewer which carries both sanitary sewage and stormwater.
H. Workers Authorized By the Director. Includes, but is not limited to, City employees, neighborhood volunteers including members of community organizations, members of federal community service programs, and contractors hired by the City.
17.37.030 Establishment of Downspout Disconnection Program.
A program is established to remove stormwater from the combined sewer at properties with direct stormwater connections to the property’s external sanitary sewer lateral. The existence of a direct connection will be determined by the City using methods including researching City Plumbing or Building Records and verifying the information with site surveys of eligible properties.
A. Deadlines. The Downspout Disconnection Program shall pursue the objective of managing stormwater directly connected to the combined sewer on eligible properties in the program area and removing necessary amounts of stormwater from the combined sewer no later than the deadlines in the Downspout Disconnection Program Administrative Rules. Deadlines may be met sooner based upon the schedule for the projects in specific sewer basins.
B. Program Phases. The Director will determine appropriate phases and methods for implementing the Program in the program area in order to meet the deadlines.
1. Within the program area, the Director may establish voluntary target areas and encourage property owners in these areas to disconnect their downspouts. The Director will periodically compare program results to the flow removal goals and deadlines in the CSO Management Plan, Amended Stipulation and Final Order, and design memoranda for basin projects. If the Director concludes that a goal will not be met on schedule, the Director will establish a mandatory program in the appropriate area.
2. Within the program area, the Director may establish mandatory target areas and require property owners in such areas to disconnect their downspouts. The decision to establish mandatory disconnection areas shall be based on consideration of the following factors:
a. amount of stormwater flow which must be diverted according to the CSO Management Plan, Amended Stipulation and Final Order and project design memoranda,
b. amount of time available to achieve necessary stormwater flow removal,
c. feasibility of implementing programs which represent a significant dollar savings over other alternate plans to reduce CSOs,
d. ability to reduce costs of conveyance to other parts of the sewer system for treatment where sewer basins are in remote areas at the end of interceptors making capture and conveyance of CSOs costly,
e. differing soil and geographic conditions affecting water percolation into the soil and groundwater,
f. importance of severely reducing or eliminating CSOs in sensitive areas such as City parks or natural areas,
g. the sizes of major conveyance and storage facilities which are designed dependent upon a certain rate of stormwater removed from the combined sewer system.
The Director will prepare written findings describing the reasons for establishing each mandatory program area. The findings will be filed with the Council Clerk and shall be reviewed by the Council upon the request of any member of the Council.
3. Disconnection procedures and policies in mandatory program areas will be described in the Downspout Disconnection Program Administrative Rules.
C. Exceptions. The Director may decline to disconnect a connected downspout, and may exempt downspouts from disconnection requirements, upon his or her determination that the disconnection would not meet the standards for safe disconnection, is not prudent or is not feasible. This includes situations where disconnection could result in possible damage to the property or adjoining properties, risk to health and safety of occupant, create a possible nuisance to the property, or involve excessive cost.
D. Access to Eligible Property. For the purpose of administering this code chapter, the Director or other workers authorized by the Director may, with consent from the property owner or occupant and upon production of proper identification, enter upon the land or premises of eligible property. The purpose of such entry is to survey a downspout to determine whether it is connected, to provide technical assistance regarding proper disconnection, to disconnect downspouts, to correct or otherwise fix disconnected downspouts, to reconnect downspouts that do not meet program standards, or to inspect downspouts which have been disconnected.
E. Partnerships With Community Organizations. The Director is authorized to establish partnerships with equitable, charitable, neighborhood based groups. Such groups may include, but are not limited to, neighborhood associations and other association organizations such as neighborhood watch groups, neighborhood emergency response teams, community development corporations (CDCs), church groups, youth groups. Such partnerships will provide downspout disconnection services for owners who desire assistance with the disconnection work.
F. Ownership of private stormwater systems. The property owner shall own the new private stormwater management system and be responsible for ensuring that the new private system is properly maintained and operated.
17.37.040 Disconnection Procedures.
All downspouts that are disconnected from the combined sewer through this program shall conform to the disconnection methods or systems approved by the Director. Downspouts may be disconnected with roof water redirected onto the surface of the property, underground the surface of the property, through a curb cut (roof discharge to curbed streets), through a private lateral which directly connects the property to a public storm sewer, or other onsite stormwater management system.
A. Disconnection procedures in mandatory program areas will be described in the Downspout Disconnection Program Administrative Rules.
B. Standards for safe disconnection to the surface of the property shall be included in the BES Stormwater Management Manual or in the Bureau of Development Services Program Guide for Combined Sewer Area Downspout Disconnection at Existing Properties.
C. Standards for safe disconnection to an underground disposal system or other private stormwater management systems shall be included in the Oregon Plumbing Specialty Code, the Stormwater Management Manual, or in the Bureau of Development Services Program Guide for Combined Sewer Area Downspout Disconnection at Existing Properties.
D. Standards for safe disconnection to a curb cut (roof discharge via rain drain to curbed streets) or private lateral shall be included in the Stormwater Management Manual, or the Sewer and Drainage Facilities Design Manual.
E. Technical assistance at participating properties.
1. In voluntary program areas, the Director will, on request from an owner, provide technical assistance to determine the appropriate method of disconnection for any downspout.
2. In mandatory program areas, the Director will provide technical assistance to determine the appropriate plan for each downspout at each property.
F. Reconnection of disconnected downspouts at participating properties.
1. Property owners in mandatory program areas are prohibited from reconnecting to the combined sewer unless the City determines that the disconnection poses a threat to health, safety or property and approves the reconnection. Homeowners must contact the Downspout Disconnection Program if they believe reconnection is necessary.
2. Property owners in the voluntary area must contact the Downspout Disconnection Program if they plan to reconnect their downspout(s).
17.37.050 Disconnection Reimbursement.
Disconnection reimbursement will be paid in the following manner:
A. Disconnection reimbursement will be made for the least expensive method of disconnection that will be effective, as determined by workers authorized by the Director. Reimbursements will not be processed until the new stormwater system has been inspected and approved. Owners will not be reimbursed for downspouts disconnected prior to receiving official notification from the Downspout Disconnection Program that they are eligible for downspout disconnection reimbursement. Reimbursement will only be provided within the target areas identified in section 17.37.030 B.1.and 2.
B. Downspout disconnection to surface systems will be reimbursed as follows:
1. Owners who complete the disconnection work themselves or use their own contractor and receive a satisfactory inspection will be compensated according to the Downspout Disconnection Program Administrative Rules.
2. Owners who receive supplies at no charge from the City for their disconnection work will be compensated according to the Downspout Disconnection Program Administrative Rules.
3. When the Director believes that a surface system will provide safe and effective disconnection, owners who wish to install an underground system , curb cut, or other private stormwater management system which is more costly must pay for their preferred system and will be compensated according to the Downspout Disconnection Administrative Rules. Property owners are responsible for obtaining city permits and any necessary review and inspection for private stormwater management systems.
4. Community organizations authorized by the Director to do disconnection work for owners who request assistance will be reimbursed according to the Downspout Disconnection Program Administrative Rules.
5. Owners whose downspouts are satisfactorily disconnected by other workers authorized by the Director and at no charge to the owner will receive no reimbursement.
C. The Director is authorized to make reimbursement payments to property owners from funds within the Sewer System Operating Fund.
17.37.080 Program Enforcement
Any property whose downspouts have not been granted an exception and remain connected to the combined sewer system in violation of 17.37.030 B.3 is hereby declared a nuisance and subject to abatement or correction. Whenever the Director believes such a nuisance exists, a notice shall be posted on the property directing that the nuisance be abated or corrected. The City retains the right to take any or all of the following enforcement actions if the property owner or their agent fails to abate this nuisance:
A. Summary abatement. If the property owner or their agent continues to ignore or refuses to abate the declared nuisance, the City reserves the right to obtain an order from the City Code hearings officer to summarily abate the nuisance on subject property. The City shall attempt to bill the property owner for the costs of disconnection from the combined sewer.
B. Civil Remedy. The City shall have the right to obtain, in any court of competent jurisdiction, a judgment against the person or property failing to disconnect from the combined sewer in accordance with the provisions of Section 17.37.030. In any such action, the measure of damages shall be the costs for abatement by the City, administrative costs, permit fees, overhead costs, penalties, and other charges as determined by the Director.
C. Court Action. In addition to any other remedy provided in this Chapter, the City Attorney, acting in the name of the City, may maintain an action or proceeding in any court of competent jurisdiction to compel compliance with or restrain by injunction the violation of any provision of this Chapter.
D. Withholding of BES Services. Except as provided elsewhere in this Title or when the public welfare is endangered; the Bureau of Environmental Services may at its discretion withhold from the owner(s) (or the owner’s agent) of disconnection delinquent property as defined in Section 17.37.030, any service that is provided by the Bureau. This may include, but is not limited to:
1. Refusal of acceptance of application for permits relating to development on any property of the said owner(s).
This withholding may continue until the disconnection delinquency no longer exists
E. Appeal. Property owners or their agents may request an administrative review as described in the Downspout Disconnection Administrative Rules to contest the city’s declaration of a nuisance or to request an extension in the abatement time frame. If the appellant is unsatisfied with the BES staff response they may appeal the request to the City Code Hearings Officer as specified in Title 22 and in the Downspout Disconnection Program Administrative Rules.
1. In the event that the City needs to enforce the terms of the Code Hearings Officer’s order referred to in Section 17.37.080, an administration fee of $300 for each occurrence and associated costs for each occurrence for enforcing the terms of the order shall be billed to the property owner of the property in accordance with the provisions of Chapter 22.06. If the administrative fee remains unpaid after 90 days, the administrative fee shall be made a lien on the property in accordance with the provisions of Chapter 22.06.
17.37.110 Interference with Disconnection Activities Unlawful.
It shall be unlawful for any person to attempt to obstruct, impede, or interfere with any officer, employee, contractor, agent, or authorized representative of the City whenever such officer, employee, contractor, agent, or authorized representative of the City is engaged in the work of disconnecting downspouts from the combined sewer under the authority of an order of the Code Hearings Officer issued pursuant to subsection 17.37.080 C. above.
17.37.120 Liability.
Neither the City nor any of its officers, employees, contractors, agents, or authorized representatives shall be liable for any damage to or loss of the real property of any improvements, emblements, or personal property thereon due to the enforcement or administration of this Chapter.
17.37.130 Civil Remedies.
A. In addition to the remedies provided by any other provision of this Chapter, the City shall have the right to obtain, in any court of competent jurisdiction, a judgment against the person or property failing to disconnect from the combined sewer in accordance with the provisions of Section 17.37.030. In any such action, the measure of damages shall be the costs for abatement by the City, administrative costs, permit fees, overhead costs, penalties, and other charges as determined by the Director.
B. In addition to any other remedy provided in this Chapter, the City Attorney, acting in the name of the City, may maintain an action or proceeding in any court of competent jurisdiction to compel compliance with or restrain by injunction the violation of any provision of this Chapter.
17.37.140 Notice Sufficiency.
For the purposes of any noticing procedure as set forth by this Chapter, notice shall be deemed to have been received upon mailing of that notice. An error in the name of the owner or agent of the owner or the use of a name other than that of the true owner or agent for the property shall not render the notice void.
17.37.150 Bureau Actions.
All City Bureaus shall, to the fullest extent consistent with their authority, carry out their programs in such a manner as to further the provisions of this Title, and shall cooperate to the fullest extent in enforcing the provisions of this Chapter.
17.37.160 Severability.
If any provisions of this Chapter, or its application to any person or circumstances, is held to be invalid, the remainder of this Chapter, or the application of the provision to other persons or circumstances, shall not be affected.
Figure 7 (Section 17.37.020)
Figure 7
Section 17.37.020
Downspout Disconnection Program Area Map