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California Sportfishing Protection v. County of Sacramento

March 9, 2012

CALIFORNIA SPORTFISHING PROTECTION
ALLIANCE, A NON-PROFIT CORPORATION, PLAINTIFF,
v.
COUNTY OF SACRAMENTO, A POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA; SACRAMENTO AREA SEWER DISTRICT, A COUNTY SANITATION DISTRICT; DEFENDANTS.



CONSENT DECREE

The following Consent Decree is entered into by and between Plaintiff California Sportfishing Protection Alliance ("Plaintiff" or "CSPA"), and defendants County of Sacramento ("County") and Sacramento Area Sewer District ("SASD") (collectively "Defendants"). 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 County is a political subdivision of the State of California and is the permittee on the 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 County (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 County (MS4), NPDES Permit No. CAS082597, Order No. R5-2008-0142 California Regional Water Quality Control Board Central Valley Region ("2008 MS4 Permit");

WHEREAS, SASD is a County Sanitation District pursuant to and operating under the County Sanitation District Act;

WHEREAS, on December 29, 2010, CSPA provided the Defendants, the Administrator of the United States Environmental Protection Agency ("EPA"), the Regional Administrator for Region IX of the 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 Defendants violated and continue 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 1, 2011, Plaintiff filed its complaint in the United States District Court for the Eastern District of California ("District Court") against Defendants, Case No. CV-11-00575-KJM-EFB (hereinafter "Complaint");

WHEREAS, Defendants deny CSPA's allegations that they have violated the Clean Water Act and/or any of the permits as alleged in the Complaint;

WHEREAS, the Settling Parties, through their authorized representatives and without either adjudication of the Complaint's claims or admission by Defendants 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 Parties each hereby agree as follows:

I.GENERAL OBJECTIVES

1. The objectives of this Consent Decree are:

a. To ensure that Defendants use, implement, and improve ways, means, and methods to prevent sanitary sewer overflows;

b. To ensure that Defendants use, implement, and improve 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 or other comparable technologies such as technology combining video with sonar data that delineates the cross section of the pipe, or utilizing a robot that takes many pictures as it travels down the pipe and then stitches the pictures together to create a frame by frame video.

b. "County" means the County of Sacramento, California.

c. "SASD" means the Sacramento Area Sewer District.

d. "Condition Assessment" means an inspection of a Sewer Segment by CCTV that results in documentation of the structural condition of the inspected Sewer Segment.

e. "CSPA" means California Sportfishing Protection Alliance.

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 SASD 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, oils, and grease.

h. "Lower Lateral" means the lateral line owned and/or operated by the Defendants connecting a home or other structure to the Defendants sewer main extending from the sewer main to the back of the public right-of-way or Defendants' clean out, whichever is applicable to the lateral connection. Lower Laterals are generally connected to Private Laterals.

i. "MS4" means the municipal separate storm sewer system owned or operated by the County of Sacramento or any other permittee on the 2008 MS4 Permit. The MS4 includes the entire "municipal separate storm sewer" as that term is defined in 40 C.F.R. § 122.26(b)(8).

j. "County MS4" means the municipal separate storm sewer system owned or operated by the County of Sacramento, and includes the entire municipal separate storm sewer system under the County's jurisdiction that meets the definition set forth in 40 C.F.R. § 122.26(b)(8).

k. "NPDES" means National Pollutant Discharge Elimination System. l. "Private Lateral" means the private sanitary sewer lateral or line connecting a home or other structure to the Lower Lateral, generally extending from the outside of the foundation of the structure to the public right-of-way or the Defendants' cleanout, whichever is applicable.

m. "Sanitary Sewer Overflow" or "SSO" means: "any overflow, spill, release, discharge or diversion of untreated or partially treated wastewater from the the 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 that are caused by blockages or flow conditions within the publicly owned portion of a sanitary sewer system." For purposes of this definition, "waters of the United States" has the meaning as set forth in 40 C.F.R. § 122.2. Temporary storage and conveyance facilities (such as vaults, temporary piping, wet wells, construction trenches, impoundments, tanks, etc.) are considered to be part of the sanitary sewer system, and discharges and/or diversions into these temporary storage facilities that do not discharge to waters of the United States are not considered to be SSOs.

n. "Sewer Segment" means any section of publicly owned sewer line or pipe 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.

o. "SSMP" means the Sewer System Management Plan developed and implemented by SASD for the Collection System in accordance with the SSO WDR.

p. "Collection System" means the sewer pipes and lines, manholes or maintenance holes, pump stations, and all appurtenances thereto under ownership of and/or operation by SASD that are used to convey wastewater generated by residential, commercial, and industrial sources within unincorporated areas of the County of Sacramento and the cities of Sacramento, Elk Grove, Rancho Cordova, Folsom and Citrus Heights 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 Collection System does not include Private Laterals or other privately owned or operated infrastructure that connects to the Collection System.

III.JURISDICTION AND VENUE

3. For purposes of settlement, the Settling Parties stipulate to the Court's jurisdiction to enter this Consent Decree.

IV.EFFECT OF CONSENT DECREE

4. Plaintiff does not, by their agreement to this Consent Decree, warrant or aver in any manner that the Defendants' 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 Defendants 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 Defendants, 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 Defendants 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.

7. The Settling Parties agree not to contest the validity of this Consent Decree in any subsequent proceeding to implement or enforce its terms. By entering into this Consent Decree Defendants do not admit liability for any purposes as to any allegation or matter arising out of the Notice Letter and/or Complaint.

8. No change in ownership or corporate or other legal status of the Defendants or any transfer of the Defendants' assets or liabilities shall in any way alter the responsibilities of the Defendants or any of its successors or assigns thereof, under this Consent Decree. In any action to enforce this Consent Decree, the Defendants shall not raise as a defense the failure by any of its agents, servants, contractors, employees, and successors or assigns to take actions necessary to comply with this Consent Decree.

VI.EFFECTIVE DATE AND TERMINATION DATE

9. The term "Effective Date," as used in this Consent Decree, shall mean the last date on which the signature of a party to this Consent Decree is executed.

10. This Consent Decree will terminate no more than six (6) years and six (6) months from the Effective Date. If any Settling Party has invoked the dispute resolution process pursuant to Section XX and the dispute has not been resolved at the time the Consent Decree would otherwise terminate, the Consent Decree shall continue in effect until the dispute is resolved, either through mutual agreement of the Settling Parties or by the Court.

VII.SSO AND SPILL REDUCTION PERFORMANCE STANDARDS

11. SSO Reduction. It is the goal of this Consent Decree to reduce SSOs from the Collection System. SASD shall reduce SSOs from sewer mains and Lower Laterals as provided in Table 1. Table 1 sets forth the number of SSOs per 100 miles of sewer per year ("SSO Reduction Performance Standard"), which Defendants shall not exceed in a particular calendar year.

Table 1 -- SSO Reduction Performance Standards

Maximum

Year Number of SSOs Per 100 Miles of Sewer / Year 2012 20 2013 15 2014 10 ...


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