[Federal Register Volume 82, Number 239 (Thursday, December 14, 2017)]
[Notices]
[Pages 58881-58884]
[FR Doc No: 2017-26916]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-82250; File No. SR-Phlx-2017-102]

Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Exclude Options
Overlying NDX From Several Pricing Programs

December 8, 2017.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on December 1, 2017, Nasdaq PHLX LLC (``Phlx'' or ``Exchange'') filed
with the Securities and Exchange Commission (``Commission'') the
proposed rule change as described in Items I, II, and III, below, which
Items have been prepared by the Exchange. The Commission is publishing
this notice to solicit comments on the proposed rule change from
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend the Exchange's Pricing Schedule at
Section II, ``Multiply Listed Options Fees,'' \3\ and Section IV,
entitled ``Other Transaction Fees.'' Specifically, the Exchange
proposes to exclude options overlying NDX \4\ from several pricing
programs.
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    \3\ This includes options overlying equities, ETFs, ETNs and
indexes which are Multiply Listed.
    \4\ NDX represents options on the Nasdaq 100 Index traded under
the symbol NDX (``NDX'').
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    The text of the proposed rule change is available on the Exchange's
website at http://nasdaqphlx.cchwallstreet.com/, at the principal
office of the Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Phlx proposes to exclude options overlying NDX from the Monthly
Market Maker Cap, the Market Access and Routing Subsidy or ``MARS,''
and Phlx's Price Improvement XL (``PIXL'') pricing. Each of the
proposals are discussed in more detail below. The Exchange seeks to
differentiate pricing for this exclusively-listed product from other
multiply listed product pricing.

Monthly Market Maker Cap
    Today, Phlx Specialists \5\ and Market Makers \6\ are subject to a
``Monthly Market Maker Cap'' of $500,000 for: (i) Electronic Option
Transaction Charges, excluding surcharges; and (ii) Qualified
Contingent Cross (``QCC'') Transaction Fees (as defined in Exchange
Rule 1080(o) and Floor QCC Orders, as defined in 1064(e)).\7\ All
dividend, merger, short stock interest, reversal and conversion, jelly
roll and box spread strategy executions (as defined in Section II of
the Pricing Schedule) will be excluded from the Monthly Market Maker
Cap. Specialists or Market Makers that (i) are on the contra-side of an
electronically-delivered and executed Customer order, excluding
responses to a PIXL auction; and (ii) have reached the Monthly Market
Maker Cap will be assessed fees as follows: $0.05 per contract Fee for
Adding Liquidity in Penny Pilot Options, $0.18 per contract Fee for
Removing Liquidity in Penny Pilot Options and $0.18 per contract in
Non-Penny Pilot Options.
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    \5\ The term ``Specialist'' applies to transactions for the
account of a Specialist (as defined in Exchange Rule 1020(a)). A
Specialist is an Exchange member who is registered as an options
specialist pursuant to Rule 1020(a). An options Specialist includes
a Remote Specialist which is defined as an options specialist in one
or more classes that does not have a physical presence on an
Exchange floor and is approved by the Exchange pursuant to Rule 501.
See Preface to Phlx's Pricing Schedule.
    \6\ The term ``Registered Options Trader'' or ``ROT'',
``Streaming Quote Trader'' or ``SQT'' and ``Remote Streaming Quote
Trader'' or ``RSQT'' applies to transactions for the accounts of
ROTS, SQTs, and RSQTs. For purposes of the Pricing Schedule, the
term ``Market Maker'' will be utilized to describe fees and rebates
applicable to ROTs, SQTs and RSQTs. See Preface to Phlx's Pricing
Schedule.
    \7\ The trading activity of separate Specialist and Market Maker
member organizations is aggregated in calculating the Monthly Market
Maker Cap if there is Common Ownership between the member
organizations.
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    The Exchange proposes to amend the Monthly Market Maker Cap to
exclude options overlying NDX from electronic Options Transaction
Charges as subject to the Monthly Market Maker Cap. Transactions in NDX
will not be subject to the the Monthly Market Maker Cap.
PIXL
    Today, the Exchange assess a $0.07 per contract PIXL Initiating
Order Fee. However, if the member or member organization qualifies for
the Tier 3, 4 or 5 Customer Rebate in Section B the member or member
organization is assessed $0.05 per contract. If the member or member
organization executes equal to or greater than 3.00% of National
Customer Volume in Multiply-Listed equity and ETF Options Classes
(excluding SPY Options) in a given month, the member or member
organization is assessed no fee for Complex PIXL Orders. Any member or
member organization under Common Ownership with another member or
member organization that qualifies for a Customer Rebate Tier 4 or 5 in
Section B, or executes equal to or greater than 3.00% of National
Customer Volume in Multiply-Listed equity and ETF Options Classes
(excluding SPY Options) in a given month receives one of the PIXL
Initiating Order discounts as described above. Members or member
organizations that qualify for Customer Rebate Tiers 2 through 6 or
qualify for the Monthly Firm Fee Cap \8\ are eligible for a rebate of
$0.12 per contract for all Complex PIXL Orders (excluding SPY Options)
greater than 499 contracts, provided the member executes an average of
2,500 contracts per day of SPY Complex PIXL Orders in a month.
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    \8\ Firms are subject to a maximum fee of $75,000 (``Monthly
Firm Fee Cap''). Additional details on the Monthly Firm Fee Cap are
at Section II of the Pricing Schedule.
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    Further, the Exchange has pricing noted for PIXL Order Executions
in Section II Multiply Listed Options. When the PIXL Order is contra to
the Initiating Order a Customer PIXL Order is assessed no fee and Non-
Customer PIXL Orders will be assessed $0.30 per contract. When a PIXL
Order is contra to a PIXL Auction Responder, a Customer PIXL Order is
assessed no fee, other Non-Customer PIXL Orders are assessed $0.30 per
contract in Penny Pilot Options or $0.38 per contract in Non-Penny
Pilot Options. A Responder that is a Specialist or a Market Maker is
assessed $0.25 per contract in Penny Pilot Options or $0.40 per
contract in Non-Penny Pilot Options. Other Non-Customer Responders are
assessed $0.48 per contract in Penny Pilot Options or $0.70 per
contract in Non-Penny Pilot Options when contra to a PIXL Order. A
Responder that is a Customer is assessed $0.00 per contract in Penny
Pilot Options and Non-Penny Pilot Options. Finally, when a PIXL Order
is contra to a resting order or quote a Customer PIXL Order is assessed
no fee, other Non-Customers are assessed $0.30 per contract and the
resting order or quote is assessed the appropriate Options Transaction
Charge in Section II. All other fees discussed in Section II, including
Marketing Fees and surcharges, apply as appropriate.
    The Exchange proposes to exclude options overlying NDX from the
PIXL Pricing in Section IV, Part A. NDX would be subject to Section II
pricing, specifically the Options Transactions Charges in NDX as noted.
MARS
    Today, MARS, pays a subsidy to Phlx members that provide certain
order routing functionalities to other Phlx members and/or use such
functionalities themselves. Generally, under MARS, Phlx pays
participating Phlx members to subsidize their costs of providing
routing services to route orders to Phlx. To qualify for MARS, a Phlx
member's order routing functionality would be required to meet certain
criteria.\9\ With respect to Complex Orders, the Exchange would not
require Complex Orders to enable the electronic routing of orders to
all of the U.S. options exchanges or provide current consolidated
market data from the U.S. options exchanges. Any Phlx member may apply
for MARS, provided the requirements are met, including a robust and
reliable System. The member is solely responsible for implementing and
operating its System. The Exchange is not proposing to amend this
eligibility standards.
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    \9\ Specifically, a Phlx member's routing system (hereinafter
``System'') would be required to: (1) Enable the electronic routing
of orders to all of the U.S. options exchanges, including Phlx; (2)
provide current consolidated market data from the U.S. options
exchanges; and (3) be capable of interfacing with Phlx's API to
access current Phlx match engine functionality. Further, the
member's System would also need to cause Phlx to be the one of the
top five default destination exchanges for individually executed
marketable orders if Phlx is at the national best bid or offer
(``NBBO''), regardless of size or time, but allow any user to
manually override Phlx as a default destination on an order-by-order
basis. Notwithstanding the above, with respect to Complex Orders a
Phlx member's routing system would not be required to enable the
electronic routing of orders to all of the U.S. options exchanges or
provide current consolidated market data from the U.S. options
exchanges. Any Phlx member would be permitted to avail itself of
this arrangement, provided that its order routing functionality
incorporates the features described above and satisfies Phlx that it
appears to be robust and reliable. The member remains solely
responsible for implementing and operating its system.
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    Today, a MARS Payment would be made to Phlx members that have
System Eligibility and have routed the requisite number of Eligible
Contracts daily in a month, which were executed on Phlx. For the
purpose of qualifying for the MARS Payment, Eligible Contracts include
Firm,\10\ Broker-Dealer,\11\ Joint Back Office or ``JBO'' \12\ or

Professional \13\ equity option orders that are electronically
delivered and executed. Eligible Contracts do not include floor-based
orders, qualified contingent cross or ``QCC'' orders,\14\ price
improvement or ``PIXL'' orders,\15\ Mini-Option orders \16\ or Singly-
Listed Options \17\ orders. The Eligible Contracts requirements are not
being amended.
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    \10\ The term ``Firm'' or (``F'') applies to any transaction
that is identified by a Participant for clearing in the Firm range
at OCC.
    \11\ The term ``Broker-Dealer'' applies to any transaction which
is not subject to any of the other transaction fees applicable
within a particular category.
    \12\ The term ``Joint Back Office'' or ``JBO'' applies to any
transaction that is identified by a member or member organization
for clearing in the Firm range at OCC and is identified with an
origin code as a JBO. A JBO will be priced the same as a Broker-
Dealer. A JBO participant is a member, member organization or non-
member organization that maintains a JBO arrangement with a clearing
broker-dealer (``JBO Broker'') subject to the requirements of
Regulation T Section 220.7 of the Federal Reserve System as further
discussed at Exchange Rule 703.
    \13\ The term ``professional'' means any person or entity that
(i) is not a broker or dealer in securities, and (ii) places more
than 390 orders in listed options per day on average during a
calendar month for its own beneficial account(s). See Rule
1000(b)(14).
    \14\ A QCC Order is comprised of an order to buy or sell at
least 1000 contracts that is identified as being part of a qualified
contingent trade, as that term is defined in Rule 1080(o)(3),
coupled with a contra-side order to buy or sell an equal number of
contracts. The QCC Order must be executed at a price at or between
the NBBO and be rejected if a Customer order is resting on the
Exchange book at the same price. A QCC Order shall only be submitted
electronically from off the floor to the Exchange's match engine.
See Rule 1080(o).
    \15\ PIXL is the Exchange's price improvement mechanism known as
Price Improvement XL or (PIXLSM). See Rule 1080(n).
    \16\ Mini Options are further specified in Phlx Rule 1012,
Commentary .13.
    \17\ Singly Listed Options are options overlying currencies,
equities, ETFs, ETNs treasury securities and indexes not listed on
another exchange.
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    Phlx members that have System Eligibility and have executed the
requisite number of Eligible Contracts in a month are paid the
following per contract rebates: \18\
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    \18\ The specified MARS Payment are paid on all executed
Eligible Contracts which are routed to Phlx through a participating
Phlx member's System and meet the requisite Eligible Contracts ADV.
No payment are made with respect to orders that are routed to Phlx,
but not executed.

----------------------------------------------------------------------------------------------------------------
                                                                   Average daily           MARS payment
                              Tiers                                   volume     -------------------------------
                                                                     (``ADV'')        Non-SPY           SPY
----------------------------------------------------------------------------------------------------------------
1...............................................................           1,000           $0.01           $0.01
2...............................................................          30,000            0.10            0.10
3...............................................................          40,000            0.12            0.12
4...............................................................          52,500            0.14            0.12
5...............................................................          65,000            0.18            0.12
6...............................................................          75,000            0.20            0.12
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    The Exchange proposes to exclude options overlying NDX from
Eligible Contracts for purposes of qualifying for a MARS Payment. Only
Eligible Contracts are paid rebates, therefore no MARS Payment would be
paid on options overlying NDX.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\19\ in general, and furthers the objectives of
Sections 6(b)(4) and 6(b)(5) of the Act,\20\ in particular, in that it
provides for the equitable allocation of reasonable dues, fees and
other charges among members and issuers and other persons using any
facility, and is not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
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    \19\ 15 U.S.C. 78f(b).
    \20\ 15 U.S.C. 78f(b)(4) and (5).
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    The Exchange believes that the proposed pricing changes to exclude
options overlying NDX from the Monthly Market Maker Cap, MARS and PIXL
pricing for NDX are reasonable, equitable and not unfairly
discriminatory. NDX transitioned in 2017 to an exclusively-listed
product. Similar to other proprietary products, the Exchange seeks to
recoup the operational costs for listing proprietary products.\21\
Also, pricing by symbol is a common practice on many U.S. options
exchanges as a means to incentivize order flow to be sent to an
exchange for execution in particular products. Other options exchanges
price by symbol.\22\ Further, the Exchange notes that with its
products, market participants are offered an opportunity to either
transact options overlying NDX or separately execute options overlying
PowerShares QQQ Trust (``QQQ'').\23\ Offering products such as QQQ
provides market participants with a variety of choices in selecting the
product they desire to utilize to transact NDX.\24\ When exchanges are
able to recoup costs associated with offering proprietary products, it
incentivizes growth and competition for the innovation of additional
products.
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    \21\ By way of example, in analyzing an obvious error, the
Exchange would have additional data points available in establishing
a theoretical price for a multiply listed option as compared to a
proprietary product, which requires additional analysis and
administrative time to comply with Exchange rules to resolve an
obvious error.
    \22\ See pricing for Russell 2000 Index (``RUT'') on Cboe
Exchange, Inc.'s Fees Schedule.
    \23\ QQQ is an exchange-traded fund based on the Nasdaq-100
Index[supreg].
    \24\ By comparison, a market participant may trade options
overlying RUT or separately the market participant has the choice of
trading iShares Russell 2000 Index Fund (``IWM'') Exchange-Traded
Fund Shares options, which are also multiply listed.
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Monthly Market Maker Cap
    The Exchange's proposal to exclude electronic Options Transaction
Charges for options overlying NDX from the Monthly Market Maker Cap is
reasonable because Market Makers will continue to be able to utilize
the cap to reduce electronic Option Transaction Charges, excluding
surcharges, QCC transaction fees and Floor QCC Orders, despite the
exclusion of NDX transactions. The Exchange's proposal to exclude
electronic Options Transaction Charges for options overlying NDX from
the Monthly Market Maker Cap is equitable and not unfairly
discriminatory because the Exchange will uniformly exclude electronic
options overlying NDX from the Monthly Market Maker Cap.
PIXL
    The Exchange's proposal to exclude options overlying NDX from the
PIXL Pricing in Section IV, Part A is reasonable because the Exchange
believes that the PIXL pricing continues to be competitive despite the
exclusion of NDX. The Exchange's proposal to exclude options overlying
NDX from the PIXL Pricing in Section IV, Part A is equitable and not
unfairly discriminatory because the Exchange will uniformly exclude
options overlying NDX from PIXL pricing.
MARS
    The Exchange's proposal to exclude options overlying NDX from
Eligible Contracts for purposes of qualifying for a MARS Payment is
reasonable because the Exchange believes that despite the exclusion of
NDX, MARS remains a competitive offering. The Exchange's proposal to
exclude options overlying NDX from Eligible Contracts for purposes of
qualifying for a MARS Payment is equitable and not unfairly
discriminatory because the Exchange will uniformly exclude options
overlying NDX from MARS.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. In terms of inter-market
competition, the Exchange notes that it operates in a highly
competitive market in which market participants can readily favor
competing venues if they deem fee levels at a particular venue to be
excessive, or rebate opportunities available at other venues to be more
favorable.
    The Exchange's proposal to exclude electronic Options Transaction
Charges for options overlying NDX from the Monthly Market Maker Cap
does not impose an undue burden on intra-market competition because the
Exchange will uniformly exclude electronic options overlying NDX from
the Monthly Market Maker Cap. The Exchange's proposal to exclude
options overlying NDX from the PIXL Pricing in Section IV, Part A does
not impose an undue burden on intra-market competition because the
Exchange will uniformly exclude options overlying NDX from PIXL
pricing. The Exchange's proposal to exclude options overlying NDX from
Eligible Contracts for purposes of qualifying for a MARS Payment does
not impose an undue burden on intra-market competition because the
Exchange will uniformly exclude options overlying NDX from MARS.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\25\
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    \25\ 15 U.S.C. 78s(b)(3)(A)(ii).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is: (i)
Necessary or appropriate in the public interest; (ii) for the
protection of investors; or (iii) otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-Phlx-2017-102 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields,
Secretary, Securities and Exchange Commission, 100 F Street NE,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-Phlx-2017-102. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-Phlx-2017-102 and should be submitted on
or before January 4, 2018.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\26\
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    \26\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-26916 Filed 12-13-17; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register: August 13, 2007 (Volume 72, Number 155)]
[Notices]
[Page 45281-45282]
[DOCID:fr13au07-106]

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SECURITIES AND EXCHANGE COMMISSION

Proposed Collection; Comment Request

Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of Investor Education and Advocacy, Washington, DC
20549-0213.

Extension:
    Rule 17a-7; SEC File No. 270-147; OMB Control No. 3235-0131.

    Notice is hereby given that pursuant to the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (``Commission'') is soliciting comments on the collection of
information summarized below. The Commission plans to submit this
existing collection of information to the Office of Management and
Budget for extension and approval.
    Rule 17a-7 (17 CFR 240.17a-7) under the Securities Exchange Act of
1934 (``Exchange Act'') (15 U.S.C. 78a et seq.) requires non-resident
broker-dealers registered or applying for registration pursuant to
section 15 of the Exchange Act to maintain--in the United States--
complete and current copies of books and records required to be
maintained under any rule adopted under the Securities Exchange Act of
1934. Alternatively, Rule 17a-7 provides that the non-resident broker-
dealer may sign a written undertaking to furnish the requisite books
and records to the Commission upon demand.
    There are approximately 54 non-resident brokers and dealers. Based
on the Commission's experience in this area, it is estimated that the
average amount of time necessary to preserve the books and records
required by Rule 17a-7 is one hour per year. Accordingly, the total
burden is 54 hours per year. With an average cost per hour of
approximately $245, the total cost of compliance for the respondents is
$13,230 per year.
    Written comments are invited on: (a) Whether the proposed
collection of

information is necessary for the proper performance of the functions of
the agency, including whether the information shall have practical
utility; (b) the accuracy of the agency's estimate of the burden of the
proposed collection of information; (c) ways to enhance the quality,
utility, and clarity of the information to be collected; and (d) ways
to minimize the burden of the collection of information on respondents,
including through the use of automated collection techniques or other
forms of information technology. Consideration will be given to
comments and suggestions submitted in writing within 60 days of this
publication.
    Comments should be directed to: R. Corey Booth, Director/Chief
Information Officer, Securities and Exchange Commission, c/o Shirley
Martinson, 6432 General Green Way, Alexandria, Virginia 22312 or send
an e-mail to<EMAIL_ADDRESS>Comments must be submitted within
60 days of this notice.

    Dated: August 6, 2007.
Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-15764 Filed 8-10-07; 8:45 am]

BILLING CODE 8010-01-P


     WASH

                       Watershed Approach to Stream Health Project

Boulder County • City of Boulder • City of Longmont • City of
Louisville • Town of Erie • Town of Superior

MODEL:  Stormwater – Construction and Post-Construction Ordinance

ORDINANCE NO. ______

SECTION 1.	TITLE.

SECTION 2.	PURPOSE/INTENT.

SECTION 3.		DEFINITIONS.

SECTION 4. 		LIABILITY.

SECTION 5.	RESPONSIBILITY FOR ADMINISTRATION.

SECTION 6.	SEVERABILITY.

SECTION 7.	APPLICABILITY.

SECTION 8.		PROHIBITIONS.

SECTION 9.	CONSTRUCTION.

GENERAL REQUIREMENTS FOR CONSTRUCTION ACTIVITIES.

CONSTRUCTION STORMWATER MANAGEMENT PLAN.

REQUIREMENTS FOR UTILITY CONSTRUCTION.

SECTION 10. 	POST-CONSTRUCTION.

POST–CONSTRUCTION REQUIREMENT OF PERMANENT BMPs.

CERTIFICATION OF PERMANENT BMPs.

ONGOING INSPECTION AND MAINTENANCE OF permanent BMPs.

SECTION 11.		TECHNICAL STANDARDS AND SPECIFICATIONS.

SECTION 12.		SUBMISSIONS FROM THE GENERAL PUBLIC.

SECTION 13.		AUTHORIZATION OF ENFORCEMENT PERSONNEL.

SECTION 14.		RIGHT OF ENTRY AND SAMPLING.

SECTION 15.	VIOLATIONS, ENFORCEMENT AND PENALTIES.

SECTION 16.		ACTION WITHOUT PRIOR NOTICE.

SECTION 17.		FINANCIAL SECURITY.

SECTION 18.		OTHER LEGAL ACTION.

SECTION 19.		ADOPTION OF ORDINANCE.

SECTION 1.	TITLE.

This ordinance (Ord. No.______) shall be known as the Stormwater –
Construction and Post-construction Ordinance and may be so cited.

SECTION 2.	PURPOSE/INTENT.

The intent of this ordinance is to protect and enhance the water quality
of our watercourses and receiving waters in a manner pursuant to and
consistent with the Federal Clean Water Act and also to provide for the
health, safety, and general welfare of the citizens of (
                                                     ) through the
regulation of non-storm water discharges to the municipal separate storm
sewer system (MS4) to the maximum extent practicable as required by
federal and state law. This ordinance establishes methods for
controlling the introduction of pollutants into the MS4 in order to
comply with requirements of the National Pollutant Discharge Elimination
System (NPDES) permit process.  The objectives of this ordinance are:

To regulate the contribution of pollutants to the MS4 by stormwater
discharges from construction activity and development;

To reduce pollutants in stormwater discharges from construction activity
by guiding, regulating, and controlling the design, construction, use,
and maintenance of any development or other activity that disturbs or
breaks the topsoil or results in the movement of earth on land;

To require permanent stormwater runoff controls to be constructed along
with development to prevent the deterioration of water quality;

To establish provisions for the long-term responsibility for and
maintenance of structural stormwater control facilities and
nonstructural stormwater management practices to ensure that they
continue to function as designed, are maintained, and not threaten
public safety;

To establish legal authority to carry out all inspection, surveillance
and monitoring procedures necessary to ensure compliance with this
ordinance; and

To facilitate compliance with state and federal standards and permits by
owners of construction sites, developments and permanent best management
practices (BMPs) within the [County, City or Town].

SECTION 3.		DEFINITIONS.

For the purposes of this ordinance, the following words and phrases
shall have the meaning set forth in this section:

Authorized Enforcement Agency. The employees or designees of the
director of the municipal agency designated to enforce this ordinance.
For the purposes of this ordinance, the designated municipal agency is
the (_______________) Director of (______________).

Best Management Practices (BMPs). Schedules of activities, prohibitions
of practices, general good housekeeping practices, pollution prevention
and educational practices, maintenance procedures, and other management
practices to prevent or reduce the discharge of pollutants directly or
indirectly to stormwater, receiving waters, or stormwater conveyance
systems.  BMPs also include treatment practices, operating procedures,
and practices to control site runoff, spillage or leaks, sludge or water
disposal, and drainage from raw materials storage.

Colorado Discharge Permit System (CDPS).CDPS is Colorado’s version of
the federal NPDES. This is the State of Colorado regulation (5 CCR
1003-61) which covers discharges from specific types of industries,
including construction sites, and storm sewer systems for certain
municipalities as part of the Water Quality Control Division (Division)
under the Colorado Department of Public Health and Environment (CDPHE).

Clean Water Act. The federal Water Pollution Control Act (33 U.S.C. §
1251 et seq.), and any subsequent amendments thereto.

 Such activities include but are not limited to clearing and grubbing,
grading, excavating, and demolition.

Construction Site. Any location where construction activity occurs.

Contractor. Any person performing or managing construction work at a
construction site, including, but not limited to, any construction
manager, general contractor or subcontractor, and any person engaged in
any one or more of the following: earthwork, pipework, paving, building,
plumbing, mechanical, electrical, landscaping or material supply.

Clearing. Any activity that removes the vegetative surface cover.

Disturbed Area. That area of the land’s surface disturbed by any work
or activity upon the property by means including but not limited to
grading; excavating; stockpiling soil, fill, or other materials;
clearing; vegetation removal; removal or deposit of any rock, soil, or
other materials; or other activities which expose soil. Disturbed area
does not include the tillage of land that is zoned for agricultural use.

Earthwork. The disturbance of soil on a site associated with clearing,
grading, or excavation activities.

Erosion. The detachment and movement of soil or rock fragments by water,
wind, ice or gravity.

Erosion Control. Measures that prevent soil erosion to the maximum
extent practicable.

Erosion Control Plan. A plan that indicates the specific measures and
sequencing to be used for controlling sediment and erosion on a
development site during construction activity.

[Final Drainage Plan]. County, City or Town…needs to define
individually- refer to use in ordinance.

Final Stabilization. When all soil disturbing activities at the site
have been completed, and uniform vegetative cover has been established
with a density of at least 70 percent of pre-disturbance levels, or
equivalent permanent, physical erosion reduction methods have been
employed.  For purposes of this ordinance, establishment of a vegetative
cover capable of providing erosion control equivalent to pre-existing
conditions at the site is considered final stabilization.

Financial Security Instrument. A surety bond, performance bond,
maintenance bond, irrevocable letter of credit, or similar guarantees
submitted to the [local approval authority] to assure that requirements
of the ordinance are carried out in compliance with the stormwater
management plan.

Grading. Excavation or fill of material, including the resulting
conditions thereof.

Municipal Separate Storm Sewer System (MS4).  Publicly-owned facilities
by which storm water is collected and/or conveyed, including but not
limited to any roads with drainage systems, municipal streets, gutters,
curbs, catch basins, inlets, piped storm drains, pumping facilities,
retention and detention basins, natural and human-made or altered
drainage ditches/channels, reservoirs, and other drainage structures.

Land Development.  Any land change, including, but not limited to,
clearing, digging, grubbing, stripping, removal of vegetation, dredging,
grading, excavating, transporting and filling of land, construction,
paving, and any other installation of impervious cover.

National Pollutant Discharge Elimination System (NPDES) Storm Water
Discharge Permit. A permit issued by the EPA (or by a State under
authority delegated pursuant to 33 USC § 1342(b) i.e. Colorado
Discharge Permit System) that authorizes the discharge of pollutants to
waters of the State, whether the permit is applicable on an individual,
group, or general area-wide basis.

Non-Stormwater Discharge. Any discharge to the storm drain system that
is not composed entirely of storm water.

Operator. The individual who has day-to-day supervision and control of
activities occurring at the construction site.  This can be the owner,
the developer, the general contractor or the agent of one of these
parties.  It is anticipated that at different phases of a construction
project, different types of parties will satisfy the definition of
'operator' and the pertinent portions of any applicable State of
Colorado permit will be transferred as the roles change.

Owner. The person who owns a facility, development, part of a facility,
or land.

Person. Means any individual, association, organization, partnership,
firm, corporation, cooperative, limited liability company or other
entity recognized by law.

Phasing. Clearing a parcel of land in distinct phases, with the
stabilization of each phase before the clearing of the next.

Pollutant. Anything which causes or contributes to pollution. Pollutants
may include, but are not limited to: paints, varnishes, and solvents;
oil and other automotive fluids; non-hazardous liquid and solid wastes
and yard wastes; refuse, rubbish, garbage, litter, or other discarded or
abandoned objects, ordinances, and accumulations, so that same may cause
or contribute to pollution; floatables; pesticides, herbicides, and
fertilizers; hazardous substances and wastes; sewage, fecal coliform and
pathogens; dissolved and particulate metals; animal wastes; wastes and
residues that result from constructing a building or structure; wastes
and residues that result from mobile washing operations; and noxious or
offensive matter of any kind.

Pollution.  The presence in waters of the State of any substances,
contaminants, pollutants, or manmade or man-induced impairment of waters
or alteration of the chemical, physical, biological, or radiological
integrity of water in quantities or at levels which are or may be
potentially harmful or injurious to human health or welfare, animal or
plant life, or property or which unreasonably interfere with the
enjoyment of life or property, including outdoor recreation unless
authorized by applicable law.

Post-construction.   After the construction phase has been approved for
final acceptance.

Premises.  Any building, lot, parcel or tract of land, or portion
thereof, whether improved, or un-improved, and including adjacent
sidewalks and parking strips.

Receiving Water: Any water of the State of Colorado, including any and
all surface waters that are contained in or flow in or through the State
of Colorado, all watercourses, even if they are usually dry, irrigation
ditches that receive municipal stormwater, and storm sewer systems owned
by other entities.

Redevelopment.  Any construction, alteration or improvement performed on
a previously developed site.

Sediment. Soil (or mud) that has been disturbed or eroded and
transported naturally by water, wind or gravity, or mechanically by any
person.

Sediment Control. Measures that prevent eroded sediment from leaving the
site.

Site. The land or water area where any facility or activity is
physically located or conducted, including adjacent land used in
connection with the facility or activity.

Spill.   A release of solid or liquid material, which may cause
pollution of the MS4 or waters of the State.

Stabilization. The use of practices that prevent exposed soil from
eroding.

Stormwater. Any surface flow, runoff, and drainage consisting entirely
of water from any form of natural precipitation, and resulting from such
precipitation.

Stormwater Management Plan (SWMP). A document which describes the Best
Management Practices and activities to be implemented by a person during
the construction activities, which identifies sources of pollution or
contamination at a site and the actions to eliminate or reduce pollutant
discharges to stormwater, stormwater conveyance systems, and/or
receiving waters.

Subdivision Development. Includes activities associated with the
platting of any parcel of land into two or more lots and all
construction activity taking place thereon.

Utility Agency/Contractor. Private utility companies, public utility
departments, or other utility providers contractors working for such
private utility companies, or public entity utility departments, or
other utility providers engaged in the construction or maintenance of
utility lines and services, including water, sanitary sewer, storm
sewer, electric, gas, telephone, television and communication services.

Wastewater. Any water or other liquid, other than uncontaminated
stormwater, discharged from a facility.

Watercourse.  A natural or artificial channel through which water can
flow.

Waters of the State of Colorado (waters of the State). Any and all
surface and subsurface waters that are contained in or flow in or
through the State of Colorado.  The definition includes all
watercourses, even if they are usually dry.

SECTION 4. 		LIABILITY.

 to minimize pollution of receiving waters.

SECTION 5.	RESPONSIBILITY FOR ADMINISTRATION.

The [County, City or Town] and its
                  [authorized enforcement agency] shall administer,
implement, and enforce the provisions of this ordinance. Any powers
granted or duties imposed upon the authorized enforcement agency may be
delegated in writing by the [Director] of the authorized enforcement
agency to persons or entities acting in the beneficial interest of or in
the employ of the agency.

SECTION 6.	SEVERABILITY.

The provisions of this ordinance are hereby declared to be severable. If
any provision, clause, sentence, or paragraph of this ordinance or the
application thereof to any person, establishment, or circumstances shall
be held invalid, such invalidity shall not affect the other provisions
or application of this ordinance.

SECTION 7.	APPLICABILITY.

This ordinance shall be applicable to all construction activity and land
development, including, but not limited to, site plan applications,
subdivision applications, and grading applications, unless exempt
pursuant to Subsection 2 below.  These provisions apply to any new
development or redevelopment site [within the MS4 permitted area] that
meets one or more of the following criteria:

a.	Construction activities, new development and redevelopment that
involves land development activities of 1 acre or more;

b.  	Any new development or redevelopment, regardless of size, that is
identified by the (Director) to be an area where the land use has the
potential to generate highly contaminated runoff, or

c.  	Land development activities that are smaller than the minimum
applicability criteria set forth in items a. above if such activities
are part of a larger common plan of development, even though multiple,
separate and distinct land development activities may take place at
different times on different schedules.

The following activities are exempt from this ordinance:

b.  	Additions or modifications to existing single-family or duplex
residential structures;

c.  	Agricultural land management activities; and

SECTION 8.		PROHIBITIONS.

Except as provided in [municipal code…site Stormwater - Illicit
Discharge Ordinance], it is unlawful for any person to discharge
non-stormwater into a stormwater drainage system.

It is unlawful for any person to cause either individually or jointly
any discharge into the stormwater drainage system, which results in or
contributes to a violation of [County, City or Town]’s NPDES permit.

SECTION 9.		CONSTRUCTION.

A) 	GENERAL REQUIREMENTS FOR CONSTRUCTION ACTIVITIES.

The owner of a site of construction activity shall be responsible for
compliance with all requirements of Section 9.

Stormwater discharges from construction activities shall not cause or
threaten to cause pollution, contamination or degradation of waters of
the State.

All temporary erosion control facilities shall be installed before any
construction activities take place.

Waste Disposal. Solid waste, industrial waste, yard waste and any other
pollutants or waste on any construction site shall be controlled through
the use of BMPs. Waste or recycling containers shall be provided and
maintained by the owner or contractor on construction sites where there
is the potential for release of waste.  Uncontained waste that may blow,
wash or otherwise be released from the site is prohibited.  Sanitary
waste facilities shall be provided and maintained.

Ready-mixed concrete, or any materials resulting from the cleaning of
vehicles or equipment containing such materials or used in transporting
or applying ready-mixed concrete, shall be contained on construction
sites for proper disposal. Release of these materials from the site is
prohibited.

Cover shall be applied within 14 days to any soil stockpiles, which will
remain in place for longer than 30 calendar days.

Erosion and Sediment Control. BMPs shall be implemented to prevent the
release of sediment from construction sites.  Disturbed areas shall be
minimized and disturbed soil shall be managed.  Sediment tracked onto
public streets shall be removed immediately.

Wind Erosion. Techniques shall be used to prevent dust, sediment or
debris blowing from the site.

Based on an assessment of the potential of various sources at the site
to contribute pollutants to stormwater, the SWMP shall include a
description of reasonable and appropriate control measures that will be
implemented at the site as approved by the Director.

All earth disturbances shall be designed, constructed and completed in
such a manner so that the exposed area of any disturbed land shall be
limited to the shortest possible period of time.

Solids, sludges, or other pollutants shall be properly disposed to
prevent any pollutant from entering waters of the State.

Bulk storage structures for petroleum products and other chemicals shall
have adequate protection to contain all spills and prevent any spilled
material from entering the MS4 or waters of the State.

Temporary soil erosion control facilities shall be removed and disturbed
areas shall be stabilized with permanent soil erosion control measures
in accordance with the SWMP.

B)	CONSTRUCTION STORMWATER MANAGEMENT PLAN.

A SWMP shall be prepared in accordance with all of the requirements of
the most recent SWMP guidance document prepared by the CDPHE and good
engineering, hydrologic and pollution control practices as outlined in
the [County, City or Town] [design and construction standards].

The Owner or operator will submit documentation of application for CDPHE
stormwater general permit for construction activities and a completed
SWMP at the site pre-construction meeting.  The SWMP must include an
erosion and sediment control plan.

Construction activities may not proceed until approval is received from
the [County, City or Town].

The owner or their representative will be required to have the SWMP on
site at all times and shall be prepared to respond to maintenance of
specific BMPs.

The owner or their representative shall inspect all BMPs at least every
14 days and within 24 hours after any precipitation or snow melt event
that causes surface runoff. Effective March 30, 2005, inspections of
BMPs shall be conducted by an individual who has successfully completed
formal training in erosion and sediment control by a recognized
organization acceptable to the [Director].  A certification of
successful completion of such training shall be provided upon request.

Based on inspections performed by the owner or by authorized [County,
City or Town] personnel, modifications to the SWMP will be necessary if
at any time the specified BMPs do not meet the objectives of this
ordinance. In this case, the owner shall meet with authorized [County,
City or Town] personnel to determine the appropriate modifications. All
modifications shall be completed within 7 days of the referenced
inspection, and shall be recorded on the owner’s copy of the SWMP.

SWMP Review/Changes. The operator shall amend the plan whenever there is
a significant change in design, construction, operation, or maintenance,
which has a significant effect on the potential for discharge of
pollutants to the MS4 or receiving waters, or if the SWMP proves to be
ineffective in achieving the general objectives of controlling
pollutants in stormwater discharges associated with construction
activities.

Records of inspection are to be maintained on site with the SWMP.
Inspection records are to be available to [County, City or Town]
inspector upon request.

The property owner and subsequent property owners will be responsible
for continued compliance with the requirements of Section 9, during
construction activity on the site.

C)	REQUIREMENTS FOR UTILITY CONSTRUCTION.

Utility agencies shall develop and implement BMPs to prevent the
discharge of pollutants on any site of utility construction within the
[County, City or Town]. The [County, City or Town] may require
additional BMPs on utility construction activity. If the utility
construction disturbs greater than 1 acre, the utility agency must
comply with the requirements of 9A.

Utility agencies shall implement BMPs to prevent the release of sediment
from utility construction sites. Disturbed areas shall be minimized,
disturbed soil shall be managed and construction site entrances shall be
managed to prevent sediment tracking. Sediment tracked onto public
streets shall be removed immediately.

Prior to entering a construction site or subdivision development,
utility agencies shall obtain and comply with an approved current SWMPs
for the project. Any disturbance to construction and post-construction
BMP’s resulting from utility construction shall be repaired 48 hours
by the utility company in compliance with the SWMP.

SECTION 10. 	POST-CONSTRUCTION.

A)	POST–CONSTRUCTION REQUIREMENT OF PERMANENT BMPs.

Land development that meets the requirements of Section 7 must address
stormwater runoff quality through the use of permanent BMPs. All
permanent BMP’s shall be maintained in perpetuity.

Structural BMPs located on private property shall be owned and operated
by the owner(s) of the property on which the BMP is located, unless the
[County, City or Town] in writing agrees that a person other than the
owner shall own or operate such BMP.  As a condition of approval of the
BMP, the owner shall also agree to maintain the BMP to its design
capacity unless or until the [County, City or Town] shall relieve the
property owner of that responsibility in writing.  The obligation to
maintain the BMP shall be memorialized on the subdivision plat,
annexation plat, development agreement or other instrument or in a form
acceptable to the [County, City or Town] and shall be recorded in the
[office of the Boulder County Clerk and Recorder.]

B)	CERTIFICATION OF PERMANENT BMP’S

Upon completion of a project, and before a certificate of occupancy
shall be granted, the [County, City or Town] shall be provided a written
certification stating that the completed project is in compliance with
the approved [Final Drainage Plan].  All applicants are required to
submit “as built” plans for any permanent after final construction
is completed and must be certified by a Colorado licensed professional
engineer.  A final inspection by the [County, City or Town] is required
before the release of any performance securities can occur.

C)	ONGOING INSPECTION AND MAINTENANCE OF PERMANENT BMPs.

Maintenance Agreements.

The owner of site must, unless an on-site stormwater management facility
or practice is dedicated to and accepted by the [County, City or Town],
execute an inspection and maintenance agreement, that shall be binding
on all subsequent owners of the permanent BMPs.

Long-Term Inspection of Permanent BMPs

Permanent BMPs included in a [Final Drainage Plan] which are subject to
an inspection and maintenance agreement must undergo ongoing inspections
to document maintenance and repair needs and to ensure compliance with
the requirements of the agreement, the plan and this ordinance.

SECTION 11.	TECHNICAL STANDARDS AND SPECIFICATIONS.

All BMPs designed to meet the requirements of this ordinance shall
comply with the following technical standards:

Urban Drainage and Flood Control District’s Urban Storm Drainage
Criteria Manual-volume 3- BMP or its successor.

Any other alternative methodology approved by the [County, City or
Town], which is demonstrated to be effective.

SECTION 12.	SUBMISSIONS FROM THE GENERAL PUBLIC.

The [Director] will consider information from the public as it pertains
to the implementation and enforcement of this ordinance.

SECTION 13.	 AUTHORIZATION OF ENFORCEMENT PERSONNEL.

All authorized personnel under the supervision of the [Director] who are
employed by the [County, City or Town] shall have the power to conduct
inspections, issue notices of violations and implement other enforcement
actions under this ordinance as provided by the [County, City or Town]:

SECTION 14.	RIGHT OF ENTRY AND SAMPLING.

Whenever the [Director] has cause to believe that there exists, or
potentially exists, in or upon any premises any condition which
constitutes a violation of this ordinance, the [Director] shall have the
right to enter the premises at any reasonable time to determine if
there exists an actual or potential violation requirements of this
ordinance. In the event that the owner or occupant refuses entry after a
request to enter has been made, the [County, City, or Town] is hereby
empowered to seek assistance from a court of competent jurisdiction in
obtaining such entry.

The [Director] shall have the right to employ such devices and undertake
such an inspection, on or off premises, as are necessary to determine
whether the requirements of this ordinance are met.  The inspection may
include, but is not limited to the following: sampling of any discharge
and/or process waters, the taking of photographs, interviewing staff on
alleged violations, and access to any and all facilities or areas within
the premises that may have any effect on the discharge.

SECTION 15.	VIOLATIONS, ENFORCEMENT AND PENALTIES.

It shall be unlawful for any person to violate any provision or fail to
comply with any of the requirements of this ordinance.  Any person who
violates any of the provisions of this ordinance, shall be subject to
one or more of the enforcement actions outlined in this section.  Any
violation or threatened violation may be restrained by injunction or
otherwise abated in a manner provided by law.

In the event the violation constitutes an immediate danger to public
health or public safety, the [County, City or Town] representative is
authorized to enter upon the subject private property, without giving
prior notice, to take any and all measures necessary to abate the
violation and/or restore the property.  The [County, City or Town] is
authorized to seek costs of abatement as outlined in Section 15. F.

Compliance Directive.

In addition to any other remedy available to the [County, City or Town],
[County, City or Town] inspectors may issue compliance directives at the
time of inspection to require a person to implement actions that will
correct any violation of this ordinance.

Notice of Violation.

Whenever the
           [authorized enforcement agency] finds that a person has
violated a prohibition or failed to meet a requirement of this
ordinance, the authorized enforcement agency may order compliance by
written notice of violation to the responsible person. Such notice may
require without limitation:

(a) The performance of monitoring, analyses, and reporting;

(b) The elimination of illicit connections or discharges;

(c) That violating discharges, practices, or operations shall cease and
desist;

(d) The abatement or remediation of storm water pollution or
contamination hazards and the restoration of any affected property; and

(e) Payment of a fine to cover administrative and remediation costs; and

(f) The implementation of source control or treatment BMPs.

If abatement of a violation or the restoration of affected property is
required, the notice shall set forth a deadline within which such
remediation or restoration must be completed. Said notice shall further
advise that, should the violator fail to complete the remediation or
restoration within the established deadline, the work may be done by the
authorized enforcement agency or its designee and the expense thereof
shall be charged to the violator.

Appeal of Notice of Violation.

Any person receiving a Notice of Violation may appeal the determination
of the authorized enforcement agency. The notice of appeal must be
received within 10 days from the date of the Notice of Violation.
Hearing on the appeal before the appropriate authority or its designee
shall take place within 15 days from the date of receipt of the notice
of appeal. The decision of the municipal authority or their designee
shall be final.

Enforcement Measures after Appeal.

If the violation has not been corrected pursuant to the requirements set
forth in the Notice of Violation, or, in the event of an appeal, within
10 days of the decision of the municipal authority upholding the
decision of the authorized enforcement agency, then representatives of
the authorized enforcement agency and its designees are authorized to
enter upon the subject private property and are authorized to take any
and all measures necessary to abate the violation and/or restore the
property. It shall be unlawful for any person, owner, agent or person in
possession of any premises to refuse to allow the [County, City or Town]
or designated agent to enter upon the premises for the purposes set
forth above.

Stop work order.

Whenever the [County, City or Town] determines that any activity is
occurring which is not in compliance with the requirements of this
ordinance, the [County, City or Town] can order such activity stopped
upon service of written notice upon the owner and/or operator
responsible for or conducting such activity. Such owner and/or operator
shall immediately stop all activity until authorized in writing by the
[County, City or Town] to proceed. If the appropriate owner and/or
operator cannot be located, the notice to stop shall be posted in a
conspicuous place upon the area where the activity is occurring. The
notice shall state the nature of the violation. The notice shall not be
removed until the violation has been cured or authorization to remove
the notice has been issued by the City. It shall be unlawful for any
owner and/or operator to fail to comply with a stop work order.

Cost of Abatement of the Violation.

If the authorized enforcement agency abates a violation, then within 10
days after abatement of the violation, the owner of the property will be
notified of the cost of abatement, including administrative costs. Such
notice shall be given by personal delivery or by mail to the last known
address of the owner as shown in the records of the County Assessor.
Such notice shall be effective upon the date of mailing or personal
delivery.  The property owner may file a written protest objecting to
the amount of the assessment within 10 days of the effective date of the
notice. If no protest is filed, then the charges shall become due and
payable on the date set forth in the notice, which date shall be after
the expiration of the time in which to file an appeal, and such charges
shall become a special assessment against the property and shall
constitute a lien on the property for the amount of the assessment. In
the event a protest is filed, a hearing on such protest shall be held
before the appropriate authority or its designee within 15 days from the
date of receipt of the written protest.  If any charges are upheld upon
completion of such hearing, then such charges shall become due and
payable 10 days after the issuance of the order upon such protest and if
not timely paid, such charges shall become a special assessment against
the property and shall constitute a lien on the property for the amount
of the assessment.  Such charges may also be recovered in a civil action
against the owner or other person in control of the premises for which
such charges were incurred, and any person violating any of the
provisions of this ordinance shall be liable to the [County, City or
Town] for all costs, fees, charges and expenses, including but not
limited to administrative costs and legal fees and costs, by reason of
such violation.

Civil Penalties.

In the event the alleged violator fails to take the remedial measures
set forth in the notice of violation or otherwise fails to cure the
violations described therein within 10 days, or such greater period as
the                                     [authorized enforcement agency]
shall deem appropriate, after the
          [authorized enforcement agency] has taken or more of the
actions described above, the [authorized enforcement agency]  may impose
a penalty not to exceed $1,000 (depending on the severity of the
violation) for each day the violation remains unremedied after the
receipt of the notice of violation.

Criminal Penalties; Enforcement Costs.

Any person who violates any provision of this ordinance shall be liable
to criminal prosecution to the fullest extent of the law, and shall be
subject to a criminal penalty of $1,000 dollars per violation per day
and/or imprisonment for a period of time not to exceed one year.

The authorized enforcement agency may recover all attorneys’ fees
court costs and other expenses associated with enforcement of this
ordinance, including sampling and monitoring expenses.

Injunctive Relief.

The authorized enforcement agency may petition for a preliminary or
permanent injunction restraining any person from undertaking any
activities which would result in a violation or continued violation of
this ordinance, and may seek mandatory injunctive relief compelling the
person to perform abatement or remediation of any violation of this
ordinance.

Compensatory Action.

In lieu of enforcement proceedings, penalties, and remedies authorized
by this ordinance, the authorized enforcement agency at its option may
impose upon a violator alternative compensatory actions, such as storm
drain stenciling, attendance at compliance workshops, creek cleanup,
etc.

Violations Deemed a Public Nuisance.

In addition to the enforcement processes and penalties provided herein,
any condition caused or permitted to exist in violation of any of the
provisions of this ordinance is a threat to public health, safety, and
welfare, and is declared and deemed a nuisance, and may be summarily
abated or restored at the violator's expense, or may be subject of a
civil action to abate, enjoin, or otherwise compel the cessation of such
nuisance.

Remedies Not Exclusive.

Except as expressly provided above, the remedies in this Section are
cumulative and the exercise of any one or more remedies shall not
prejudice any other remedies that may otherwise be pursued for a
violation of this ordinance.  The remedies listed in this ordinance are
not exclusive of any other remedies available under any applicable
federal, state or local law and it is within the discretion of the
authorized enforcement agency to seek cumulative remedies.

SECTION 16.	ACTION WITHOUT PRIOR NOTICE.

Any person who violates a prohibition or fails to meet a requirement of
this ordinance will be subject, without prior notice, to one or more of
the enforcement actions identified Section 15, when attempts to contact
the person have failed and the enforcement actions are necessary to stop
an actual or threatened discharge which presents or may present imminent
danger to the environment, or to the health or welfare of persons, or to
the MS4.

SECTION 17.	FINANCIAL SECURITY.

. The decision of the [Director or Director’s designee] shall be
final.

SECTION 18.	OTHER LEGAL ACTION.

Notwithstanding any other remedies or procedures available to the
[County, City or Town], if any person discharges into the MS4 in a
manner that is contrary to the provisions of this ordinance, the
[County, City or Town] Attorney may commence an action for appropriate
legal and equitable relief including damages and costs in the
[_______________Court]. The [County, City or Town] Attorney may seek a
preliminary or permanent injunction or both which restrains or compels
the activities on the part of the discharger.

SECTION 19.	ADOPTION OF ORDINANCE.

This ordinance shall be in full force and effect __ days after its final
passage and adoption. All prior ordinances and parts of ordinances in
conflict with this ordinance are hereby repealed.

PASSED AND ADOPTED this ____ day of ___________, 20__, by the following
vote:

DRAFT to Partners 10/14/03

-   PAGE  1  -

W A S H  P r o j e c t

B o u l d e r C o u n t y P u b l i c  H e a l t h

3450 Broadway Boulder, CO 80304 • Phone:<PHONE_NUMBER> • Fax:
303-441-1468 • E-Mail:   HYPERLINK<EMAIL_ADDRESS><EMAIL_ADDRESS>
Needs a definition in addition to list of examples.

Clarify the duty – minimum standards or all measures necessary

Does this exemption include "routine" groundwork on residential lots?
Most individual single-family or duplex residential lots are part of a
subdivision or phased development project.  Therefore, this exemption
may not be very inclusive.

This exemption is probably too broad. It needs to either have some
further criteria to direct the determination of “necessary” or a
directive to the Director to adopt such criteria.

When will hearing be scheduled?