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Wishtoyo v. City of San Buenaventura

March 30, 2012

WISHTOYO FOUNDATION/VENTURA COASTKEEPER PLAINTIFF, AND HEAL THE BAY, INC. PLAINTIFF-INTERVENOR,
v.
CITY OF SAN BUENAVENTURA, DEFENDANT.



Complaint served: March 26, 2010Current response date: February 13, 2012

[PROPOSED] TERTIARY TREATED FLOWS CONSENT DECREE AND STIPULATED DISMISSAL

The following [Proposed] Tertiary Treated Flows Consent Decree and Stipulated Dismissal ("TTFs Consent Decree") is entered into by and among plaintiff Wishtoyo Foundation/Ventura Coastkeeper ("Ventura Coastkeeper"), plaintiff-intervenor Heal the Bay, Inc. ("Heal the Bay"), and defendant City of San Buenaventura ("City" or "Ventura"). The entities entering into this TTFs Consent Decree are each referred to herein as a "Party" and collectively as "Parties." All initially capitalized terms used in this document, including the Recitals of this document, are defined as set forth in Part II of this TTFs Consent Decree.

RECITALS

WHEREAS, Ventura Coastkeeper is a program of the Wishtoyo Foundation, a non-profit public benefit corporation. Ventura Coastkeeper's mission is to protect, preserve, and restore the ecological integrity and water quality of Ventura County's inland water bodies, coastal waters and watersheds. The Wishtoyo Foundation's mission is to preserve, protect and restore Chumash culture, the culture and history of the coastal communities, cultural resources and the environment.

WHEREAS, the City is a municipal corporation that owns and operates the public sewer system and wastewater reclamation plant for Ventura and is the permittee under the NPDES Permit.

WHEREAS, Heal the Bay is a 501(c)(3) nonprofit environmental organization whose mission is to make Southern California coastal waters and watersheds, including Santa Monica Bay, safe, healthy and clean.

WHEREAS, on January 5, 2010, Ventura Coastkeeper provided the City, the Administrator and the Regional Administrator for Region IX of EPA, the Executive Director of the State Board, and the Executive Officer of the Regional Board with the Notice Letter.

WHEREAS, on March 23, 2010, Ventura Coastkeeper, as plaintiff, filed the Complaint in the District Court against Ventura, as defendant, pursuant to the citizen suit provision of the CWA, 33 U.S.C. § 1365, alleging, among other Claims, discharges of Effluent from the VWRF to the wildlife/polishing treatment ponds and then to the Estuary in violation of the CWA, Porter-cologne, and the NPDES Permit requirements and effluent limitations.

WHEREAS, the District Court entered the SSOs Consent Decree on November 23, 2010 resolving and dismissing all of Ventura Coastkeeper's Claims for the City's alleged violations of law stemming from its alleged sanitary sewer system overflows from its sewer collection system (i.e., sanitary sewer overflow related Claims alleged in the Notice Letter and/or in Claims III through V, inclusive, of the Complaint, and all documents reference therein), and granted leave to the Parties for additional negotiation and/or litigation of Ventura Coastkeeper's remaining TTFs Claims.

WHEREAS, this TTFs Consent Decree will resolve all of Ventura Coastkeeper's remaining Claims under the Complaint (i.e., the TTFs Claims), including all alleged violations of law stemming from the City's alleged improper discharges of tertiary treated effluent from the Ventura Water Reclamation Facility to wildlife/polishing ponds and then to the Estuary in violation of the CWA, Porter-Cologne, and/or applicable effluent limitations and NPDES Permit requirements.

WHEREAS, on April 4, 2008, Heal the Bay filed with the California State Water Resources Control Board Administrative Petition for Review No. A-1927(a) challenging the Regional Board's adoption of the NPDES Permit permitting discharges of tertiary treated effluent from the Ventura Water Reclamation Facility to wildlife/polishing ponds and then to the Estuary under the CWA, Porter-Cologne, and other applicable laws.

WHEREAS, Heal the Bay has requested, and the State Board has granted, a series of abeyances to stay adjudication of its Administrative Petition to allow Heal the Bay, the City, and Ventura Coastkeeper to reach a resolution of all Claims and issues raised in Heal the Bay's Administrative Petition, and to address all related concerns about the operation of the Ventura Water Reclamation Facility.

WHEREAS, Heal the Bay's Claims in its Administrative Petition share common questions of fact with the TTFs Claims, and Heal the Bay has an interest in the resolution of the remaining TTFs Claims in this litigation.

WHEREAS, in light of Heal the Bay's interest in the settlement, resolution and dismissal with prejudice of the TTFs Claims and this litigation, Heal the Bay, Ventura Coastkeeper, and the City have filed the Stipulation for Limited Intervention and [Proposed] Limited Intervention Order requesting that Heal the Bay be granted status as a plaintiff-intervenor for limited purposes in this litigation, solely at the remedies phase, and solely with respect to the remaining TTFs Claims, and only for purposes of participating as a Party to this TTFs Consent Decree.

WHEREAS, the District Court has granted and entered the Stipulation for Limited Intervention and Limited Intervention Order, and Heal the Bay is a plaintiff-intervenor in the litigation.

WHEREAS, the City denies each allegation that it has violated the CWA, Porter-Cologne, the NPDES Permit, and/or any other law, regulation or permit as alleged in the Complaint or Administrative Petition, and denies that any of the allegations in the Complaint and Administrative Petition have any merit, and further denies that it failed to perform its duties under the CWA, the NPDES Permit, Porter-Cologne, the Statewide Waste Discharge Requirements for Sanitary Sewer Systems --State Water Resources Control Board Order No. 2006-0003, and any other applicable law, and generally denies it has liability to Ventura Coastkeeper, Heal the Bay, or any other citizen or citizen groups arising from its ownership and operation of the City's sanitary sewer system and VWRF.

WHEREAS, the Parties, through their authorized representatives and without either adjudication of the Claims of Ventura Coastkeeper's Complaint or Heal the Bay's Administrative Petition, and without admission by the City of any alleged Claim, violation or other wrongdoing, have agreedto settlement, dismissal and release of all pending and/or remaining Claims asserted in, or arising from this litigation, the Complaint and the Administrative Petition, and have agreed to release of certain other Claims of those Parties as set forth in this TTFs Consent Decree without further protracted litigation.

WHEREAS, the Parties believe that to further their shared commitment to protecting the ecology of the Estuary and its watershed, and to proactively commence planning and implementation for environmentally protective, sustainable, and integrated water supply and wastewater discharge practices, the City needs to develop, over time, one or more yet-to-be identified infrastructure options for Ventura's reclamation and diversion of an ecologically appropriate volume of its Effluent.

WHEREAS, although the Construction Implementation Constraints and Operational Implementation Constraints are not yet fully identified, studied, documented, or resolved, the Parties agree that it is appropriate for the City to engage now in the process to identify, select, plan, design, engineer, environmentally review, permit, and, ultimately, construct one or more technically, financially, and regulatorily feasible reclamation and diversion infrastructure projects, including Treatment Wetlands, with the goal of achieving the cumulative capacity to divert and eliminate 100% of the Effluent from Direct Discharge to the Estuary (with a first priority for diversion to Water Reclamation Uses) so that the VWRF can implement, by December 31, 2025, Effluent diversions that result in a discharge regime that is determined to be, and permitted by the Resources Agencies as the most ecologically beneficial for the Estuary.

WHEREAS, the Parties acknowledge that for the City in the future to best adaptively manage the volume of Effluent discharges and diversions from Direct Discharge, the City must strive to develop capacity to divert 100% of the Effluent from Direct Discharge and to reclaim the maximum feasible amount of this Effluent for beneficial reuse.

WHEREAS, the Parties agree that, taking into account and subject to Construction Implementation Constraints, the reclamation and diversion infrastructure projects constructed on the Time Schedule shall consist of a combination of projects that have the capacity required by the Design Considerations, and can:

1. as a first priority, divert on an ongoing basis the Maximum Feasible Diversion Volume to broadly defined Water Reclamation Uses as a first and best use of the Effluent; and

2. as a second priority, divert Effluent to Treatment

Wetlands, in the event that 100% reclamation is infeasible due to Construction Implementation Constraints or Operational Implementation Constraints, and so long as such diversion remains consistent with the Approved Effluent Diversions as determined by the Resource Agencies.

WHEREAS, the Parties agree that, subject to Construction Implementation Constraints and Operational Implementation Constraints, upon the construction of the Diversion Infrastructure Project(s), the City shall implement the Approved Effluent Diversions by the expiration of the Time Schedule, so long as the Approved Effluent Diversions are not Financially Infeasible, Technically Infeasible, or Regulatorily Infeasible.

WHEREAS, the Parties agree that all actions taken by the City pursuant to this TTFs Consent Decree shall be in compliance with all applicable federal, state and local laws, rules and regulations.

WHEREAS, for purposes of settlement only, the Parties waive all objections that they may have to the District Court's jurisdiction to establish and retain jurisdiction over the Parties, the TTFs Claims (until they are dismissed with prejudice by the District Court pursuant to the terms and conditions of this Consent Decree), and/or this TTFs Consent Decree (See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994)).

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 PURPOSES AND OBJECTIVES

1. The purposes and objectives of this TTFs Consent Decree are:

a. For the City to engage now in the process to identify, select, plan, design, engineer, environmentally review, permit, and, ultimately, construct on the Time Schedule, one or more Diversion Infrastructure Projects, including Treatment Wetlands, with the goal of achieving the cumulative capacity to divert and eliminate, subject to the Design Considerations, 100% of the Effluent from Direct Discharge to the Estuary (with a first priority for diversion to Water Reclamation Uses and a second priority for diversion to Treatment wetlands) so that the VWRF can implement, by December 31, 2025, Effluent diversions that result in a discharge regime that is determined to be, and is permitted by the Resources Agencies as the most ecologically beneficial for the Estuary; and

b. To further the City's water supply conservation and reclamation goals; and

c. To ensure that the City uses, implements, manages and improves ways, means, and methods of discharging Effluent to prevent violations of, and to fully comply with or exceed the requirements of, the CWA, Porter-Cologne, CESA, ESA,the City's relevant municipal codes, and any other applicable laws, regulations and permits related to discharges of the Effluent.

2. Accordingly, the Parties agree that, so long as the City is implementing the terms and conditions of this TTFs Consent Decree and is not in violation hereof, it is the intent of this TTFs Consent Decree that the City will maintain full compliance with requirements of the CWA, Porter-Cologne, CESA, ESA, the NPDES Permit, the City's relevant municipal codes, and any other applicable laws, regulations and permits related to the discharge of Effluent from the VWRF, such that no cause of action against the City would be available to other citizen suit or other third-party plaintiffs under such laws.

3. The terms and conditions of this TTFs Consent Decree have been developed and agreed to by the Parties taking into account the current and unique circumstances of the City, including the condition and configuration of the City's existing sanitary sewer and wastewater treatment facilities and infrastructure, the City's exemplary commitment to the maintenance and operation of the VWRF, and its past and ongoing in-depth technical and scientific studies of the hydrology, ecology, groundwater, and biological resources of the Estuary to achieve improved water quality in the region and to further enhance designated beneficial uses of the Estuary. Accordingly, the terms and conditions of this TTFs Consent Decree are solely applicable to the City and shall not establish a precedent for other permittees under other NPDES permits, or for other sanitation, sanitary sewer or wastewater treatment agencies.

II.DEFINITIONS

Unless otherwise expressly defined herein, terms used in this TTFs Consent Decree, including the [Proposed] Dismissal Order, that are defined in the CWA or in regulations or rules promulgated under the CWA have the meaning assigned to them in the statutes, regulations or rules. Whenever terms listed below are used in this TTFs Consent Decree, including [Proposed] Dismissal Order,

4. the following definitions apply:

a. "ACOE" means the United States Army Corps of Engineers, or any regulatory agency that is a successor to ACOE.

b. "Administrative Petition" means the currently pending Administrative Petition for Review of Los Angeles Regional Water Quality Control Board Action of Adopting Order No. R-4-2008-0011, SWRCB Petition No. A-1927(a), which Heal the Bay filed with the SWRCB on April 4, 2008.

c. "Agencies with Jurisdiction" means, CDFG, RWQCB, ACOE, NMFS, USFWS, and other governmental agencies or their regulatory agency successors with jurisdiction to environmentally review, consult with respect to, certify, approve, condition, or otherwise permit Diversion Infrastructure Projects, components thereof, the elimination of Direct Discharge, and/or the implementation of alternative discharges of Effluent to new or different locations or uses.

d. "Annual Rate Cap" means a 3% increase in any one year during the Time Schedule.

e. "Annual Report" means that report prepared by the City pursuant to the terms and conditions of Paragraph 28 of this TTFs Consent Decree.

f. "Approved Effluent Diversions" means that volume or flow of Effluent diversion permitted and approved for diversion from Direct Discharge to the Estuary by the Resources Agencies pursuant to Paragraph 23 of this Agreement.

g. "Breakdown Situations" means any temporary event occurring after construction of the Diversion Infrastructure Projects and implementation of Effluent diversions that is beyond the City's reasonable control and that precludes the City from diverting Effluent, or materially reduces the volume of Effluent that may be diverted from Direct Discharge, such as:

i. an Event of Force Majeure;

ii. a rainfall event or series of events exceeding the Five-Year 24-Hour Storm Event or the Five-Year 30-Day Storm Event such that diversion of Effluent to the constructed Diversion Infrastructure Projects is precluded, and/or the potential for inundation of the VWRF facilities creates a material risk that a VWRF treatment unit process may be bypassed; and/or

iii. any mechanical failure of facilities, equipment or processes, whether operated by the City or by other water districts or users to whom the City may transfer Effluent, required to implement diversions of Effluent from Direct Discharge or to the Water Reclamation Uses and/or Treatment Wetlands.

h. "CDFG" means the California Department of Fish and Game, or any regulatory agency that is a successor to CDFG.

i. "CESA" means the California Endangered Species Act Cal. Fish & Game Code §§ 2050-2097.

j. "City" means the City of San Buenaventura, a California chartered City.

k. "Claim" means any legal, administrative, judicial or other claim, charge, demand, cause of action, challenge, lawsuit, petition, appeal, or other request for remedy of any kind or nature, at law or in equity, including, without limitation, those for violations of law or regulation, or for injunctive relief, declaratory relief, specific performance, damages, penalties, fines, sanctions, fees, costs, expenses, or monetary sums of any kind.

l. "Complaint" means that certain complaint, filed in the District Court by Ventura Coastkeeper, as plaintiff, against the City, as defendant, commencing this legal action, Case No. CV 10-02072-GHK (PJWx), against the City.

m. "Construction Implementation Constraints" means, as applicable, the occurrence(s) of any of the following in a manner that precludes, prevents or impedes the City's construction of the Diversion Infrastructure Project(s) by the Time Schedule specified in this TTFs Consent Decree or the achievement of the Effluent diversions required by this TTFs Consent Decree: 1) Technical Unfeasibility, 2) Financial Unfeasibility, and/or 3) Regulatory Unfeasibility.

n. "CWA" means the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et. seq.

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

p. "Debt Service" means the interest and other costs of bond issuance which must be paid to finance the Total Net Investment in specified types of City sewer related capital projects, but, to eliminate "double counting" of the same capital investment amount as both Total Net Investment and again as Debt Service, excludes the amount of the bond principal to be repaid to debt holders, which amount is already "counted" as the Total Net Investment in infrastructure and capital projects.

q. "Design Considerations" means that the capacity for reclamation and diversion infrastructure project(s) is designed to accept the total combined flow or volume of Effluent and rainfall during a Five Year 24-Hour Storm Event, and a Five-Year 30-Day Storm Event, except during Maintenance, Health and Safety Situations or Breakdown Situations.

r. "Direct Discharge" means any discharge of Effluent to the Estuary from the VWRF or the VWRF's existing wildlife/polishing ponds, excluding those discharges of Effluent to the Estuary from Treatment Wetlands that are approved by the Resources Agencies, and that are otherwise conducted pursuant to the terms of this TTFs Consent Decree, which discharges of Effluent to the Estuary may be permitted as set forth herein.

s. "District Court" means the United States District Court for the Central District of California, in which this legal action, Case No. CV 10-02072-GHK (PJWx), is pending.

t. "Diversion Infrastructure Project" or "Diversion Infrastructure Projects" means those reclamation and diversion infrastructure project(s), including the Treatment Wetlands, that cumulatively will have the capacity, taking into account and subject to the Design Considerations, Construction Implementation Constraints, and Operational Implementation Constraints, to divert to Water Reclamation Uses and/or Treatment Wetlands the Maximum Feasible Diversion Volume.

u. "Effective Date" means the date defined in Paragraph 18 of this TTFs Consent Decree.

v. "Effluent" means current and future anticipated VWRF tertiary treated sewage effluent, which also constitutes recycled water.

w. "EPA" means the United States Environmental Protection Agency, or any regulatory agency that is a successor to EPA.

x. "ESA" means the federal Endangered Species Act, 16 U.S.C. §§ 1531-1544.

y. "Estuary" means the Santa Clara River Estuary. z. "Event of Force Majeure" is an event which renders the City's compliance with this TTFs Consent Decree impossible, despite the timely and reasonable efforts of the City, due to circumstances beyond the control of the City or its agents, and which could not have been reasonably foreseen and prevented by the exercise of due diligence by the City. Any delays or failure to properly perform as required by this TTFs Consent Decree due to the City's failure to make timely and bona fide applications and to exercise reasonable and diligent efforts to comply with the terms in this TTFs Consent Decree, or due to normal inclement weather events taken into account by the Design Considerations, shall not, in any event, be considered to be an Event of Force Majeure. aa. "Event of Implementation Constraint or Disagreement" means that one or more Parties believe that any one of the following has occurred:

(1) a Construction Implementation Constraint; or (2) an Operational Implementation Constraint, or (3) a disagreement among the Parties regarding an the terms and conditions of this TTFs Consent Decree, including, a disagreement regarding: (i) the existence, extent or effect of, or the appropriate response to a Construction Implementation Constraint, or an Operational Implementation Constraint; (ii) the appropriate Maximum Feasible Diversion Volume; (iii) the appropriate Time Schedule or extension to a Time Schedule (including, without limitation, extensions to a Time Schedule and/or other dues dates to address any tolling period related to implementation of informal or formal dispute resolution proceedings as provided for in this TTFs Consent Decree); (iv) the existence, extent or effect of, or appropriate response to a Rate Rejection; (v) the appropriate Maximum Ecologically Protective Diversion Volume; or (vi) any other disagreement regarding the interpretation or implementation of the terms of this TTFs Consent Decree. bb. "Event of Implementation Constraint, Disagreement, or Breach" means that one Party believes that one of the following has occurred:

(a) an Event of Implementation Constraint or Disagreement, or (b) a violation or breach by a Party of the TTFs Consent Decree.

cc. "Financial Unfeasibility" or "Financially Infeasible" means:

i. that the increment of revenue needed to fund the Total Net Investment and Debt Service for the planning, design, engineering, environmental review, permitting, construction, and implementation of only the Diversion Infrastructure Projects and/or Effluent diversions will necessitate a total increase in the City's base cost of service sewer fees and/ or sewer rate of more than the Annual Rate Cap; or.

ii. the sum of the revenues needed for: (a) the City's sewer-related operations, management and maintenance duties, (b) the Total Net Investment and Debt Service for planning, design, engineering, environmental review, permitting, construction, and implementation of the City's adopted Capital Improvement Plan and Sewer Master Plan projects, and (c) the Total Net Investment and Debt Service for planning, design, engineering, environmental review, permitting, construction, and implementation of the Diversion Infrastructure Projects and/or Effluent diversions, together cumulatively require total net expenditures by the City that necessitate total average annual base cost of service sewer fees and/or a sewer rate at any time during the Time Schedule exceeding the Median Income Cap; or

iii. the Total Net Investment needed for the planning, design, engineering, environmental review, permitting, construction, and implementation of the Diversion Infrastructure Projects and/or Effluent diversions exceeds the Net Investment Cap.

dd. "Five-Year 24-Hour Storm Event" means that amount of total rainfall generated from a rain event or series of rain events occurring over the course of a 24-hour period that, on average based on the historical rainfall records, occurs only once every five years. ee. "Five-Year 30-Day Storm Event" means that amount of total rainfall generated from a series of rain events occurring over the course of a 30-Day period that, on average based on the historical rainfall records, occurs only once every five years. ff. "Heal the Bay" means Heal the Bay, Inc., a 501(c)(3) nonprofit organization. gg. "Legal or Regulatory Action" means any action, ruling, permit, certification, or approval, or any provision, term, effluent limitation, or other condition thereof, or any other similar regulatory requirement adopted or issued, and enforceable by an Agency with Jurisdiction or a court with jurisdiction. hh. "Maintenance, Health and Safety Situations" means any temporary event occurring after construction of the Diversion Infrastructure Projects and implementation of Effluent diversions that precludes the City from diverting Effluent, or materially reduces the volume of Effluent that may be diverted from Direct Discharge, due to either (1) the creation by normal operations of a threat to public health and safety that is beyond the City's reasonable control, and/or (2) the need to implement maintenance, repairs, safety measures or capital improvements to assure the proper continued operation of the Diversion Infrastructure Projects, such as:

i. An inability to divert Direct Discharge or deliver Effluent to Water Reclamation Uses and/or the Treatment Wetlands that may be foreseen, but is unavoidable because any of the facilities, equipment, or processes (whether operated by the City or by other water districts or users to whom the City may transfer Effluent) diverting Effluent to the Water Reclamation Uses and/or Treatment Wetlands must be "offline" for emergency or scheduled maintenance, repair, replacement, capital upgrades, implementation of safety measures or similar types of work; or

ii. An inability to deliver Effluent to Water Reclamation Uses and/or the Treatment Wetlands arising due to an Event of Force Majeure that occurs despite the City's reasonable diligence, and creates a credible risk of causing a discharge, spill, or release resulting in a nuisance, or adverse impacts to public health, safety, or the environment.

ii. "Maximum Ecologically Protective Diversion Volume" means the maximum volume or flow of Effluent appropriate to divert from Direct Discharge that is ecologically protective of the Estuary, the Estuary's aquatic species, and the Estuary watershed, which volume or flow shall be conclusively established for purposes of this TTFs Consent Decree as set forth in Paragraph 23.c., or, if disagreement arises in the process set forth in Paragraph 23.c, the volume or flow shall be conclusively established by way of the meet-and-confer process set forth in Paragraph 26, or, if necessary, by way of formal dispute resolution as set forth in Paragraph 27.a. of this TTFs Consent Decree.

jj. "Maximum Feasible Diversion Volume" means a minimum average annual volume or flow of Effluent, that can be diverted from Direct Discharge, which should be comprised of no less than 50% of the VWRF total average annual Effluent volume and up to 100% of its total average annual Effluent volume, unless and except to the extent that such diversions are infeasible due to Construction Implementation Constraints, in which case "Maximum Feasible Diversion Volume" shall mean the greatest average annual volume or flow of Effluent that can be directed to Water Reclamation Uses and is not Technically Infeasible, Regulatorily Infeasible, or Financially Infeasible. kk. "Median Income Cap" means 1.2% of the City's annual median household income measured at any time during the Time Schedule. The City's median household income shall be determined by the statistics for the City of San Buenaventura published by the U.S. Census Bureau. The current URL for these statistics is: http://quickfacts.census.gov/gfd/states/06/0665042.html.

ll. "Memorandum of Settlement" means the Memorandum of Agreement Regarding Settlement Terms executed by the Parties in August 2011.

mm. "Net Investment Cap" means Fifty Five Million Dollars ($55,000,000), increased on the date of calculation of the financial cap by the same percentage as the percentage increase in the Engineering Record News Construction Cost Index occurring between the Effective Date and the date of calculation. nn. "NMFS" means the National Marine Fisheries Service (also known as the National Oceanic and Atmospheric Administration's Division of Fisheries), or any regulatory agency that is a successor to NMFS. oo. "Notice Letter" means that certain Notice of Violation and Intent to File Suit issued by Ventura Coastkeeper under Section 505(b) of the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"), 33 U.S.C. § 1365(b), on January 5, 2010. pp. "Notice of Petition Dismissal" means a notice to be filed with the District Court by Heal the Bay prior to the District Court's consideration or entry of any of the Settlement Documents pursuant to Part VIII of this TTFs Consent Decree, which notice shall establish with certainty that Heal the Bay has dismissed with prejudice all Claims of its Administrative Petition. qq. "NPDES" means National Pollutant Discharge Elimination System, as defined in the CWA. rr. "NPDES Permit" means that certain Waste Discharge Requirements for City of San Buenaventura Water Reclamation Facility, NPDES Permit No. CA 0053651, and Order No. R4-2008-0011 issued by the RWQCB, together with any time schedule orders issued by the RWQCB in conjunction therewith, and any renewal, revision, or replacement thereof, or any superseding Order, NPDES permit, or associated time schedule orders. ss. "Operational Implementation Constraints" means, as applicable, the occurrence(s) of any of the following in a manner that precludes or impedes the City's operation of the Diversion Infrastructure Projects or the achievement of the Effluent diversions per the Design Considerations and as required by this TTFs Consent Decree by or after the Time Schedule specified in this TTFs Consent Decree: 1) Technical Unfeasibility; 2) Financial Unfeasibility; 3) Regulatory Unfeasibility; 4) Breakdown Situations; or 5) Maintenance, Health and Safety Situations. tt. "Parties" means collectively the City, Ventura Coastkeeper, and Heal the Bay. uu. "Party" means, individually, the City, Ventura Coastkeeper, or Heal the Bay.

vv. "Porter-Cologne" means the California Porter-Cologne Water Quality Control Act, California Water Code §§ 13000 et seq.

ww. "[Proposed] Dismissal Order" means the proposed Court Order, which is agreed to by the Parties, attached to this TTFs Consent Decree, and incorporated herein by reference, approving this TTFs Consent Decree, and releasing and dismissing the TTFs Claims and the Complaint with prejudice.

xx. "[Proposed] Limited Intervention Order" means the proposed Court Order, which is agreed to by the Parties, attached to this TTFs Consent Decree, and incorporated herein by reference, approving the Stipulation for Limited Intervention and granting Heal the Bay status as a plaintiff intervenor in this legal action, Case No. CV 10-02072-GHK (PJWx), for the limited purposes set forth in the Stipulation for Limited Intervention.

yy. "Rate Rejection" means ratepayers succeed in any challenge to, or otherwise successfully legally prevent (pursuant to provisions of the California Constitution or otherwise), the City's rate increases or revenue measures necessary to finance the Diversion Infrastructure Projects and/or Effluent diversions as required by, and consistent with, the terms and conditions of this TTFs Consent Decree.

zz. "Regulatory Unfeasibility" or "Regulatorily Infeasible" means the failure to secure from Agencies with Jurisdiction the necessary approvals or permits needed to comply with the TTFs Consent Decree despite the City's timely and reasonable efforts to do so.

aaa. "Required Agency Permit" or "Required Agency Permits" means one or all of the legally required environmental reviews, consultations, permits, certifications and other approvals (including, but not limited to Waste Discharge Requirements pursuant to California Water Code section 13000 et seq., any NPDES permit or permits pursuant to Clean Water Act sections 402 and/or 404, incidental take authorization pursuant to the CESA, incidental take authorization pursuant to section 7 or section 10 of ESA) that must be issued by any one of the Agencies with Jurisdiction to lawfully implement Diversion Infrastructure Projects, or components thereof, or Effluent diversions or alternative discharges of Effluent to new or different locations or uses and/or as necessary to reduce or eliminate Direct Discharges. bbb. "Resources Agencies" means USFWS, CDFG, NMFS, RWQCB and all other governmental agencies with jurisdiction to environmentally review, consult with respect to, certify, approve, condition or otherwise permit diversions from Direct Discharge, and/or alternative discharges of Effluent to new or different locations or uses, or any regulatory agency successors to those agencies. ccc. "Regional Board" or "RWQCB" means the California Regional Water Quality Control Board, Los Angeles Region, or any regulatory agency that is a successor to the RWQCB. ddd. "Scheduled Maintenance, Health and Safety Situations" means any Maintenance, Health and Safety Situations that are anticipated, are within the control of the City, and can be scheduled to occur during a certain time period by the City. eee. "Settlement Documents" means, collectively, the Stipulation for Limited Intervention, the [Proposed] Limited Intervention Order, this TTFs Consent Decree, and the ]Proposed] Dismissal Order. fff. "SSOs Consent Decree" means the Consent Decree and Stipulated Dismissal entered by the District Court in this Case No. CV 10-02072-GHK (PJWx). ggg. "State Board" or "SWRCB" means the California State Water Resources Control Board, or any regulatory agency that is a successor to the SWRCB. hhh. "Stipulation for Limited Intervention" means the [Proposed] Stipulation And Request For Limited Intervention Of Heal The Bay Pursuant To Fed. R. Civ. P. Rule 24(b)(2), which is agreed to by the Parties, and lodged concurrently and incorporated by this reference, accepting the intervention of Heal the Bay in this legal action, Case No. CV 10-02072-GHK (PJWx), only at the remedies stage, and solely for purposes of participating in this TTFs Consent Decree, and further requesting District Court consideration and entry of the [Proposed] Order for Limited Intervention only on the terms and conditions set forth therein and in Part VIII of this TTFs Consent Decree.

iii. "Technical Unfeasibility" or "Technically Infeasible" means that construction of the Diversion Infrastructure Project(s) by the Time Schedule specified by this TTFs Consent Decree is not possible despite the City's reasonable efforts due to engineering, physical, environmental, or other technical problems beyond the City's reasonable control.

jjj. "Termination Date" means the date defined in Paragraph 19 of this TTFs Consent Decree. kkk. "Time Schedule" means on or before January 1, 2025, or by such later date established as set forth in Paragraphs 26 and/or 27, as applicable.

lll. "Total Net Investment" means the total capital investment (i.e., the bond principal amount) that is needed for planning, design, engineering, environmental review, permitting, construction, and implementation of the applicable activities or infrastructure, after offsetting or crediting the total capital investment or bond principal required by: all revenues generated from grants or state revolving fund loans; proceeds from the sales of Effluent diversions or the rights to reclaimed Effluent; and/or other revenues available for sewage and reclamation system expenses or capital investments generated from other non-ratepayer sources of funding realized by the City.

mmm. "Treatment Wetlands" means natural treatment systems other than the existing wildlife/polishing ponds, constructed in uplands and/or as a retrofit of the wildlife/polishing ponds, which shall be designed, engineered, and constructed such that, in combination with VWRF upgrades to plant treatment unit processes, Effluent discharged from the natural treatment systems to receiving waters: (i) shall not contain nitrate in concentrations greater than 4.0 mg/L as a monthly average; and (ii) shall otherwise comply with the terms and conditions of all applicable Required Agency Permits, including the applicable NPDES permit. nnn. "TTFs Claims" means, collectively, those Claims in this litigation remaining after the settlement embodied in the SSOs Consent Decree for those single and/or continuing discharge related violations alleged by Ventura Coastkeeper in the Notice Letter and/or pursuant to Claims I and II of the Complaint, inclusive, and the documents referenced therein, arising from March 22, 2007 up to and through the Termination Date of this TTFs Consent Decree, stemming from the alleged improper discharge of Effluent from the VWRF to the wildlife/polishing ponds and then to the Estuary in violation of the CWA, the NPDES Permit, Porter-Cologne, any other applicable NPDES permit requirements and effluent limitations, and any other legal or equitable Claims otherwise arising from, or related to such Claims. ooo. "TTFs Consent Decree" means this [Proposed] Tertiary Treated Flows Consent Decree and Stipulated Dismissal, including the [Proposed] Dismissal Order, settling, releasing, and dismissing with prejudice Ventura Coastkeeper's TTFs Claims, the Complaint and all Claims of Heal the Bay in the Administrative Petition, and releasing certain other Claims of those Parties as set forth herein. ppp. "USFWS" means the United States Fish and Wildlife Service, or any regulatory agency that is a successor to the USFWS.

qqq. "Ventura" means the City.

rrr. "Ventura Coastkeeper" means Wishtoyo Foundation's Ventura Coastkeeper Program, Wishtoyo Foundation being a 501(c)(3) nonprofit organization and the plaintiff that filed the Complaint. sss. "VWRF" means the Ventura Water Reclamation Facility and all equipment, storage, and other infrastructure used by City to treat sanitary sewage located downstream of the headworks to such facility until its point of discharge. ttt. "Water Reclamation Uses" means diversion or delivery of Effluent to uses to improve or enhance beneficial uses (as defined under Porter Cologne and designated in the Regional Board's Water Quality Control Plan (Basin Plan)) or otherwise for purposes of improving conservation of, providing supply in lieu of, or offsetting use of, other designated sources of state, regional, or local water supply, including, without limitation, urban landscape irrigation, agricultural irrigation, groundwater injection, groundwater percolation or recharge, groundwater injection to combat sea water intrusion, delivery to, and provision of water to another agency for any of the foregoing uses, and/or diversion or delivery of Effluent to enhance water conservation or for other appropriate uses, such as once-through cooling for power plants. uuu. "Year" shall mean a calendar year, unless otherwise specified.

III.JURISDICTION AND VENUE

5. Ventura Coastkeeper contends that the District Court has jurisdiction over the subject matter of the TTFs Claims pursuant to section 505(a)(1) of the Clean Water Act, 33 U.S.C. § 1365(a)(1), and 28 U.S.C. §§ 1331 and 2201, and that 28 U.S.C. § 1367(a), provides supplemental jurisdiction for certain related Claims based on other federal and state laws, including, but not limited to, ESA, CESA, California Code of Civil Procedure § 1085, and Porter-Cologne.

6. Ventura Coastkeeper contends that venue for the TTFs Claims is proper in the District Court pursuant to section 505(c) of the Clean Water Act, 33 U.S.C. § 1365(c), and 28 U.S.C. §§ 1391(b) and (c).

7. Ventura Coastkeeper contends that the Complaint filed by Ventura Coastkeeper states claims for which relief can be granted pursuant to section 505 of the Clean Water Act, 33 U.S.C. § 1365.

8. Ventura Coastkeeper contends that it has standing to bring this action.

9. For purposes of settlement, the Parties agree to limited intervention in this litigation by Heal the Bay pursuant to the Stipulation for Limited Intervention and [Proposed] Limited Intervention Order. Accordingly, the Parties waive all objections that they may have to the District Court's jurisdiction over the Parties. For purposes of this Settlement, the Parties further agree to, and waive all objections they may have to the District Court's jurisdiction over the TTFs Claims, and its retained jurisdiction over the terms and conditions of this TTFs Consent Decree during the term of the TTFs Consent Decree. Pursuant to the [Proposed] Limited Intervention Order and [Proposed] Dismissal Order, the District Court shall retain jurisdiction over all Parties and over this matter for purposes of interpreting, modifying or enforcing the terms of this TTFs Consent Decree, for the term of this TTFs Consent Decree, or for as long thereafter as is necessary for the District Court to resolve any motion to enforce, or resolve any dispute arising under this TTFs Consent Decree. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994).

IV.EFFECT OF TTFs CONSENT DECREE

10. The Parties agree that, so long as the City is implementing the terms and conditions of this TTFs Consent Decree and is not in violation hereof, it is the intent of this TTFs Consent Decree that the City will be in full compliance with, or exceed the requirements of the CWA, Porter-Cologne, CESA, ESA and other applicable federal, state, and local laws, regulations, and permits issued thereunder. Notwithstanding the Parties' intent, nothing in this TTFs Consent Decree limits in any way the obligations of the City to comply with all federal, state, and local laws and regulations governing diversions or discharges of Effluent or any activities required by this TTFs Consent Decree, and all requirements and conditions of the Required Agency Permits.

11. This TTFs Consent Decree is not a permit or modification of any existing permits under any federal, state, or local law, and in no way relieves the City of its responsibilities to obtain any Required Agency Permits and to comply with, all applicable federal, state, and local laws and regulations.

12. Nothing in this TTFs Consent Decree, and no City action pursuant to this TTFs Consent Decree shall constitute evidence of, or be construed as a finding, adjudication, acknowledgement, or admission by the City of, or with respect to, any fact, finding, issue of law, legal defense, or violation of law, regulation, permit, or administrative order.

13. This TTFs Consent Decree and/or any payment or other action pursuant to this TTFs Consent Decree may constitute evidence against the City only in actions seeking to enforce compliance with this TTFs Consent Decree.

V.APPLICABILITY

14. The provisions of this TTFs Consent Decree address, resolve, and provide for the release and dismissal with prejudice of the TTFs Claims, the Complaint, all Claims of the Administrative Petition for Review, and grant a general release and waiver of certain other Claims of those Parties, including those future Claims as set forth in Part IX of this TTFs Consent Decree. The provisions of this TTFs Consent Decree apply to and bind Ventura Coastkeeper, Heal the Bay, and the City, including each Party's directors, employees, owners, members, agents, representatives, shareholders, servants, contractors, consultants, successors, assigns, and legal affiliates.

15. Each of the undersigned representatives of the Parties certifies that he/she is fully and legally authorized by the Party to enter into this TTFs Consent Decree, to execute it on behalf of the indicated Party, and to legally bind the represented Party to its terms. In any action to enforce this TTFs Consent Decree, no Party shall raise as a defense the failure by any of its directors, employees, owners, members, agents, representatives, shareholders, servants, contractors, consultants, successors, assigns, or legal affiliates to take actions necessary to comply with this TTFs Consent Decree.

16. The Parties, including each Party's directors, employees, owners, members, agents, representatives, shareholders, servants, contractors, consultants, successors, assigns, and legal affiliates, agree to be bound by this TTFs Consent Decree and not to contest its validity in any subsequent proceeding to implement or enforce its terms. In entering into this TTFs Consent Decree, the City denies liability for any purpose as to any allegation or matter arising out of the Notice Letter, the Complaint, and/or the Administrative Petition.

17. No change in structure, ownership, corporate, or other legal status of any Party, nor any transfer of the assets or liabilities of any Party, shall in any way alter the responsibilities of such Party under this TTFs Consent Decree, including the responsibilities of its directors, employees, owners, members, agents, representatives, shareholders, servants, contractors, consultants, successors, assigns, and legal affiliates.

VI.EFFECTIVE DATE AND TERMINATION DATE

18. The term "Effective Date," as used in this TTFs Consent Decree, means and shall be the first date that all requirements of 40 C.F.R. § 135.5 have been satisfied, and the District Court has entered the Settlement Documents as set forth in Part VIII below, including the TTFs Consent Decree and [Proposed] Dismissal Order releasing and dismissing with prejudice the TTFs Claims and the Complaint.

19. This TTFs Consent Decree shall terminate on, and the Termination Date of this TTFs Consent Decree means and shall be the earlier of the following dates: (a) the last date of the period in which the City has commenced operation of the Diversion Infrastructure Projects and operated the projects for five (5) years; or (b) the last date of the period in which the City has commenced operation of the Diversion Infrastructure Projects and operated the projects for three (3) years in a manner that has achieved zero Direct Discharge (other than any Direct Discharges occurring due to Breakdown Situations or Maintenance, Health and Safety Situations).

VII.TERMS AND CONDITIONS

20. City Goals and Obligations Regarding Design and Capacity of Diversion Infrastructure Projects; Construction Implementation Constraints.

a. The City's Infrastructure Design and Construction Goals. The City's infrastructure design and construction goals shall be to identify, select, plan, design, engineer, environmentally review, permit, and construct on the Time Schedule Diversion Infrastructure Projects that have the capacity required ...


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