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California Sportfishing Protection v. City of Sacramento

January 9, 2012

CALIFORNIA SPORTFISHING PROTECTION
ALLIANCE, A NON-PROFIT CORPORATION,
PLAINTIFF,
v.
CITY OF SACRAMENTO, A MUNICIPALITY; DEFENDANT.



CONSENT DECREE

[Proposed] Consent Decree 1 CV 11-00601-KJM-EFB

CONSENT DECREE

The following Consent Decree is entered into by and between Plaintiff California Sportfishing Protection Alliance ("Plaintiff" or "CSPA"), and defendant City of Sacramento ("City" or "Defendant"). The entities entering into this Consent Decree are each an individual "Settling Party" and collectively "Settling Parties."

WHEREAS, CSPA is a non-profit public benefit corporation dedicated to the preservation, protection, and restoration of the environment, the wildlife and the natural resources of all waters of California, including the Sacramento River, the American River, and the Sacramento-San Joaquin River Delta;

WHEREAS, the City is a municipal corporation and is a permittee on the (1) Waste Discharge Requirements Cities of Citrus Heights, Elk Grove, Folsom, Galt, Rancho Cordova, Sacramento, and County of Sacramento Storm Water Discharges from Municipal Separate Storm Sewer System Sacramento (MS4), NPDES Permit No. CAS082597, Order No. R5-2002-0206 California Regional Water Quality Control Board Central Valley Region ("2002 MS4 Permit"), and (2) Waste Discharge Requirements Cities of Citrus Heights, Elk Grove, Folsom, Galt, Rancho Cordova, Sacramento, and County of Sacramento Storm Water Discharges from Municipal Separate Storm Sewer System Sacramento (MS4), NPDES Permit No. CAS082597, Order No. R5-2008-0142 California Regional Water Quality Control Board Central Valley Region ("2008 MS4 Permit");

WHEREAS, on December 29, 2010, CSPA provided the Defendant, the Administrator and the Regional Administrator for Region IX of the United States Environmental Protection Agency ("EPA"), the Executive Director of the California State Water Resources Control Board ("State Board"), and the Executive Officer of the California Regional Water Quality Control Board, Central Valley Region ("Regional Board") with a Notice of Violation and Intent to File Suit ("Notice Letter") under section 505(a) of the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"), 33 U.S.C. § 1365(a). The Notice Letter alleged that Defendant violated and continues to violate the Clean Water Act for discharges of pollutants in violation of the Clean Water Act, the 2002 MS4 Permit, and/or the 2008 MS4 Permit;

WHEREAS, on March 3, 2011, Plaintiff filed its complaint in the United States District Court for the Eastern District of California ("District Court") against Defendant, Case No. CV-11-00601-KJM-EFB (hereinafter "Complaint");

WHEREAS, Defendant denies CSPA's allegations that it has violated the Clean Water Act and/or any of the permits as alleged in the Complaint;

WHEREAS, it is the intent of the Defendant to meet the SSO Reduction Standards described in Table 1 below by implementing the operational activities and capital improvements contained within this Consent Decree through a multi-year funding plan. The operational activities and capital improvements will be phased in over the period of this Consent Decree as described further in the following sections of the Consent Decree.

WHEREAS, the Settling Parties, through their authorized representatives and without either adjudication of the Complaint's claims or admission by Defendant of any alleged violation or other wrongdoing, have chosen to resolve this action through settlement and avoid the costs and uncertainties of further litigation;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Settling Parties each hereby agree as follows:

I.GENERAL OBJECTIVES

1. The objectives of this Consent Decree are:

a. To ensure that Defendant uses, implements, and improves ways, means, and methods to prevent sanitary sewer overflows;

b. To ensure that Defendant uses, implements, and improves ways, means, and methods to prevent violations of, or comply with, applicable permits, laws, and regulations as related to sanitary sewer overflows.

II.DEFINITIONS

2. Unless otherwise expressly defined herein, terms used in this Consent Decree, which are defined in the CWA, Porter-Cologne, or in regulations implementing these statutes, have the meaning assigned to them in the applicable statutes, regulations, or rules. Whenever terms listed below are used in this Consent Decree, the following definitions apply:

a. "CCTV" means closed-circuit television.

b. "CIP" means the City of Sacramento's sanitary sewer capital improvement program.

c. "City Collection System" means the separated sewer pipes and lines, manholes or maintenance holes, pump stations, and all appurtenances thereto under ownership of and/or operation by the City of Sacramento that are used to convey wastewater generated by residential, commercial, and industrial sources within the City of Sacramento to the sewage collection system owned and operated by the Sacramento Regional County Sanitation District ("SRCSD"), where it is subsequently delivered to the Sacramento Regional Wastewater Treatment Plant. For purposes of this Consent Decree, the City Collection System does not include the Combined Sewer System, Privately Owned Laterals or any other public or private infrastructure that connects to the City Collection System that is not owned or operated by the City.

d. "Condition Assessment Inspection" means an inspection of a sewer segment by CCTV that results in documentation of a Condition Assessment Rating for the inspected sewer segment. "Condition Assessment Inspection" does not include CCTV inspection for cleaning quality assurance/quality control, spill follow-up, FOG source investigations, or other types of CCTV inspection unless those inspections yield a Condition Assessment Rating for the entire sewer segment.

e. "Condition Assessment Rating" means an assignment of the condition given based on the Pipeline Assessment and Certification Program Standard ("PACP").

f. "Day" means a calendar day. In computing any period of time under this Consent Decree, where the last day of such period is a Saturday, Sunday, or Federal or State Holiday, or furlough day that results in the closure of City offices, the period runs until the close of business on the next day that is not a Saturday, Sunday, or Federal or State Holiday or furlough day.

g. "FOG" means fats, oil, and grease. h. "FSE" means Food Service Establishment, any facility where food is served and intended for individual portion service, and includes the site at which individual portions are provided. As used herein. "FSE" includes any facility defined as a FSE under Section 13.08.020 of the Sacramento City Code.

i. "MS4" means the City of Sacramento's municipal separate storm sewer system. The MS4 includes the entire "municipal separate storm sewer" as that term is defined in 40 C.F.R. § 122.26(b)(8).

j. "NPDES" means National Pollutant Discharge Elimination System. k. "Sanitary Sewer Overflow" or "SSO" means any overflow, spill, release, discharge or diversion of untreated or partially treated wastewater from the City Collection System that is caused by a blockage or other condition in the City Collection System. SSOs include: (i) Overflows or releases of untreated or partially treated wastewater that reach waters of the United States;

(ii) Overflows or releases of untreated or partially treated wastewater that do not reach waters of the United States; and (iii) Wastewater backups into buildings and on private property. For purposes of this definition, "waters of the United States" has the meaning as set forth in 40 C.F.R. § 122.2. Facilities for the temporary storage and conveyance of untreated or partially treated wastewater (such as vaults, temporary piping, construction trenches, wet wells, impoundments, tanks, etc.) are considered to be part of the sanitary sewer system, and discharges and/or diversions into these facilities are not considered to be SSOs.

l. "Sewer segment" means any section of sewer line or pipe that is part of the City Collection System and located between: (1) two manholes/maintenance holes; (2) a pump station and a manhole/maintenance hole; (3) a pump station or a manhole/maintenance hole and a headworks structure; or (4) a sewer line or pipe otherwise identifiable as a discrete section.

m. "SSMP" means the 2008-2009 Sewer System Management Program and subsequent amendments developed and implemented by Defendant for the City Collection System in accordance with the SSO WDR.

n. "CD Year" or "Consent Decree Year" shall mean CD Year Dates

0 (CD Effective Date Effective Date to June 30, to June 30, 2012) 2012

1 FY 2012-2013

2 FY 2013-2014

3 FY 2014-2015

4 FY 2015-2016

5 FY 2016-2017

o. "Combined Sewer System" means the combined wastewater collection and treatment system operated by the City and regulated pursuant to (NPDES) Permit No. CA0079111 and Waste Discharge Requirements Order R5-2010-0004.

p. "Privately Owned Lateral" means that portion of a customer's private sewer line that connects to the city sewer system, including that portion of the private sewer line located within the public right-of-way

q. "SSO WDR" means the Statewide General Waste Discharge Requirements for Sanitary Sewer Systems, Order WQ 2006-0003 and any subsequently adopted revisions.

III.JURISDICTION AND VENUE

3. For purposes of settlement, the Settling Parties stipulate to the Court's jurisdiction to enter and retain jurisdiction over the Settling Parties to enforce the terms of this Consent Decree if necessary.

IV.EFFECT OF CONSENT DECREE

4. Plaintiff does not, by its agreement to this Consent Decree, warrant or aver in any manner that the Defendant's compliance with this Consent Decree will constitute or result in compliance with any Federal or State law or regulation. Nothing in this Consent Decree shall be construed to affect or limit in any way the obligation of the Defendant to comply with all applicable Federal, State and local laws and regulations governing any activity required by this Consent Decree.

5. Nothing in the Consent Decree shall be construed as an admission by Defendant, and does not intend to imply any admission as to any fact, finding, issue of law, or violation of law, nor shall compliance with this Consent Decree be construed as an admission by Defendant of any fact, finding, conclusion, issue of law, or violation of law.

V.APPLICABILITY

6. The provisions of this Consent Decree apply to and bind the Settling Parties, including any successors or assigns. Each Settling Party certifies that its undersigned representatives are fully authorized to enter into this Consent Decree, to execute it on behalf of the respective Settling Party, and to legally bind the respective Settling Party to its terms. The Settling Parties agree not to contest the validity of this Consent Decree in any subsequent proceeding to implement or enforce its terms.

7. No change in legal status of the Defendant or any transfer of the Defendant's assets or liabilities shall in any way alter the responsibilities of the Defendant or any of its successors or assigns thereof, under this Consent Decree.

VI.EFFECTIVE DATE AND TERMINATION DATE

8. The term "Effective Date," as used in this Consent Decree, shall mean the last date for the United States Department of Justice to comment on the [proposed] Consent Decree, i.e., the 45th day following the United States Department of Justice's receipt of the [proposed] Consent Decree.

9. This Consent Decree will terminate on December 31, 2017.

VII.SSO AND SPILL REDUCTION PERFORMANCE STANDARDS

10. SSO Reduction. It is the goal of the Parties that implementation of this Consent Decree will reduce SSOs from the City Collection System as provided in Table 1. Table 1 sets forth the SSO reduction requirements and lists the maximum number of SSOs per 100 miles of sewer per year ("SSO Reduction Performance Standard"). Defendant shall reduce SSOs from the City Collection System as provided in Table 1.

Table 1 -- SSO Reduction Performance Standards

Maximum Number of SSOs Per CD Year 100 Miles of Sewer /Year 0 (CD Effective Date to N/A

June 30, 2012)

1 (FY 2012-2013) 11

2 (FY 2013-2014) 10

3 (FY 2014-2015) 8

4 (FY 2015-2016) 6

5 (FY 2016-2017) 5

11. For the purposes of establishing the SSO Reduction Performance ...


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