The opinion of the court was delivered by: Hon. Alicia G. Rosenberg Magistrate Judge of the United States District Court for the Central District of California
Daniel Cooper (Bar No. 153576) Drevet Hunt (Bar No. 240487) Caroline Koch (Bar No. 266068) LAWYERS FOR CLEAN WATER, INC. 1004-A O'Reilly Avenue San Francisco, California 94129 Telephone: (415) 440-6520 Facsimile: (415) 440-4155 Email: email@example.com Christopher Sproul (Bar No. 126398) Environmental Advocates 5135 Anza Street San Francisco, California 94121 Telephone: (415) 533-3376 Facsimile: (415) 358-5695 Email: firstname.lastname@example.org Attorneys for Plaintiff SANTA BARBARA CHANNELKEEPER
The following Consent Decree is entered into by and between Plaintiff Santa Barbara Channelkeeper ("Plaintiff" or "Channelkeeper") and Defendant City of Santa Barbara ("Defendant" or "City"). The entities entering into this Consent Decree are each an individual "Party" and collectively "Parties."
WHEREAS, Channelkeeper is a non-profit public benefit corporation dedicated to, among other things, the protection and enhancement of the water quality of the Santa Barbara Channel;
WHEREAS, the City is a municipal corporation established by California state law;
WHEREAS, the City owns and operates a sewage collection system that serves the City of Santa Barbara ("City Collection System");
WHEREAS, the City Collection System is intended to convey sewage to the City of Santa Barbara's El Estero Wastewater Treatment Plant ("the EE WWTP");
WHEREAS, the City acknowledges its responsibility to maintain building laterals serving City buildings;
WHEREAS, the City operates a Municipal Separate Storm Sewer System; WHEREAS, the City Collection System and the EE WWTP are regulated by the Federal Water Pollution Control Act, 33 U.S.C., §§ 1251 et seq. ("Clean Water Act" or "CWA") and are permitted under Regional Water Quality Control Board, Central Coast Region ("RWQCB") Order No. R3-2010-0011, NPDES Permit No. CA0048143 ("POTW Permit");
WHEREAS, the City's municipal separate storm sewer is regulated by the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. ("Clean Water Act" or "CWA") and is permitted under Waste Discharge Requirements for Stormwater Discharges From Small Municipal Separate Storm Sewer Systems (General Permit), State Water Resources Control Board, Order No. 2003--0005--DWQ, NPDES Permit No. CAS000004 ("MS4 Permit");
WHEREAS, on February 24, 2011, Channelkeeper issued a sixty (60) day notice letter ("Notice Letter") to the City. The Notice Letter alleged violations of the Clean Water Act, the POTW Permit, and the MS4 Permit for sanitary sewer overflows ("SSOs") from the City Collection System and informed the City of Channelkeeper's intention to file suit against the City. The Notice Letter was sent to the Administrator of the United States Environmental Protection Agency ("EPA"), the Administrator of EPA Region IX, and the Executive Director of the State Water Resources Control Board ("State Board"), as required by section 505(b)(1)(A) of the Clean Water Act, 33 U.S.C. § 1365(b)(1)(A). The Notice Letter was also sent to the Executive Officer of the Regional Board;
WHEREAS, on April 27, 2011, Channelkeeper filed its complaint against the City in the United States District Court for the Central District of California, Case No. CV-11-03624 JHN (AGRx) (hereinafter "Complaint");
WHEREAS, on October 25, 2011, Channelkeeper issued a supplemental sixty (60) day notice letter ("Supplemental Notice Letter"). The Supplemental Notice Letter alleged violations of the Clean Water Act, the POTW Permit, and the MS4 Permit for alleged discharges of raw sewage from the City Collection System into the MS4 via cracks, holes or other pipe defects, and of Channelkeeper's intention to amend the Complaint to add these claims. The Supplemental Notice Letter was sent to the Administrator of the United States Environmental Protection Agency ("EPA"), the Administrator of EPA Region IX, and the Executive Director of the State Water Resources Control Board ("State Board"), as required by section 505(b)(1)(A) of the Clean Water Act, 33 U.S.C. § 1365(b)(1)(A). The Supplemental Notice Letter was also sent to the Executive Officer of the Regional Board
WHEREAS, the City denies Channelkeeper's allegations that it has violated the Clean Water Act or any permit and denies it has liability to Channelkeeper;
WHEREAS, the Parties, through their authorized representatives and without either adjudication of the Complaint's claims or admission by the City of any alleged violation or other wrongdoing, have chosen to resolve this action through settlement to avoid the costs and uncertainties of further litigation;
WHEREAS, the City has executed a Service Contract with Brown and Caldwell ("B&C") for Development of Wastewater Collection System Strategic Management Program -- ("Phase I Agreement") dated January 11, 2011, to:
* Review and update the City's routine cleaning and Accelerated Cleaning Programs, including development of standardized procedures for cleaning and for reporting maintenance activities;
* Review and update the City's emergency SSO response program;
* Update the City's Computerized Maintenance Management Software ("CMMS") to implement improvements to the City's asset management program; and
* Link the City's CMMS to its Geographic Information System ("GIS");
WHEREAS, the City has also executed a Service Contract with B&C for Development of Wastewater System Strategic Management Program - ("Phase II Agreement") dated June 7, 2011, to:
* Develop a plan for inspecting and assessing the condition of Gravity Sewers;
* Develop a method for prioritizing future replacement, rehabilitation, and repair projects;
* Assess the condition of the City's pump stations and Force Mains and make recommendations for prioritizing needed repairs;
* Review and update the City's FOG program; and
* Update the City's current Sewer System Management Plan;
WHEREAS, this Consent Decree requires the City to continue its work with B&C to implement certain provisions set forth herein;
WHEREAS, all actions taken by the City pursuant to this Consent Decree will be made in compliance with all applicable federal, state and local rules and regulations; and
NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE PARTIES AND ADJUDGED, ORDERED AND DECREED BY THE COURT AS FOLLOWS:
1. The objectives of this Consent Decree are:
a. To ensure that the City uses, implements, and improves its ways, means, and methods to prevent SSOs;
b. To ensure that the City uses, implements, and improves its ways, means, and methods to comply with the Clean Water Act; and
c. To further the goals and objectives of the Clean Water Act.
2. Unless otherwise expressly defined herein, terms used in this Consent Decree that are defined in the Clean Water Act or in regulations, or in rules promulgated under the Clean Water Act, 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. "10-Year 24-Hour Storm" means rainfall occurring over 24 hours with rainfall amounts, as measured by a properly calibrated rain gage that records hourly rain data within the City, maintained by the County of Santa Barbara Flood Control District and located at the Santa Barbara County Building, Station 234, expected to be equaled or exceeded every 10 years on average.
b. "Consent Decree" means this Consent Decree, and any exhibits incorporated by reference to this Consent Decree.
c. "Accelerated Cleaning Program" means the City's program to regularly clean Sewer Line Segments in the City Collection System that have been identified, based on field observations, maintenance history, maintenance condition findings, CCTV assessments or other information to have a risk of causing a maintenance-related SSO.
d. "CCTV" means closed-circuit television.
e. "CIP" means the City's capital improvement plan for pipe repair, replacement and rehabilitation and other capital projects for the City Collection System, which is comprised of the Lift Station Maintenance Program and the Sanitary Sewer Overflow Compliance Program and other projects as from time to time may be added for collection system improvement.
f. "City" means the City of Santa Barbara.
g. "City Collection System" means the sewer pipes and lines, manholes or maintenance holes, and all appurtenances thereto owned by the City that are used to convey wastewater generated by residential, commercial, and industrial sources to the EE WWTP. For purposes of this Consent Decree, the City Collection System does not include building laterals.
h. "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, the period runs until the close of business on the next day that is not a Saturday, Sunday, or City or Federal or State Holiday.
i. "Gravity Sewer" means pipes within the City Collection System that convey wastewater by gravity flow.
j. "FOG" means fats, oil, and grease. k. "Force Main" means the pipelines within the City Collection System that convey wastewater under pressure from the discharge side of a pump or pneumatic ejector to a discharge point.
l. "Sanitary Sewer Overflow" or "SSO" means any overflow, spill, release, discharge or diversion of untreated or partially treated wastewater from 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 that are caused by blockages or flow conditions within the publicly owned portion of a sanitary sewer system. For purposes of this Consent Decree, SSOs do not include overflows or releases of untreated or partially treated wastewater that reach the MS4 via the subsurface environment. For purposes of this definition, "waters of the United States" has the meaning as set forth in 40 C.F.R. § 122.2 and as interpreted in applicable case law.
m. "Sanitary Sewer Overflow Compliance Program" refers to the program identified in the City's 2011-2016 Capital Improvement Plan dated March 2010, as updated from time to time.
n. "Sewer Line 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 by the City to manage, operate and maintain the City Collection System. State Water Resources Control Board Order No. 2006-0003-DWQ, Statewide General WDR For Wastewater Collection Agencies, ¶¶ 5-11, D.13.
p. "Year" will mean calendar year, unless otherwise specified.
III. JURISDICTION AND VENUE
3. For purposes of settlement, the Parties stipulate to the Court's jurisdiction to enter and retain jurisdiction over the Parties to enforce the terms of this Consent Decree if necessary.
IV. EFFECT OF CONSENT DECREE
4. Notwithstanding the General Objectives of this Consent Decree, Channelkeeper does not, by its consent to this Consent Decree, warrant or aver in any manner that the City's compliance with this Consent Decree will constitute or result in compliance with any federal or state law or regulation. This Consent Decree is neither a permit nor a modification of existing permits under any federal, state, or local law and in no way relieves the City of its responsibilities to comply with all applicable federal, state and local laws and regulations.
5. Nothing in this Consent Decree will be construed as an admission by the City, and the City does not intend to imply any admission as to any fact, finding, issue of law, or violation of law, nor will compliance with this Consent Decree be construed as an admission by the City of any fact, finding, conclusion, issue of law, or violation of law.
6. Compliance with this Consent Decree resolves Channelkeeper's civil claims for violations against the City, including all claims for civil penalties, injunctive relief and attorneys' fees.
7. The provisions of this Consent Decree apply to and bind the Parties, including any successors or assigns. The Parties certify that their undersigned representatives are fully authorized to enter into this Consent Decree, to execute it on behalf of the Parties, and to legally bind the Parties to its terms.
8. The Parties agree to be bound by this Consent Decree and not to contest its validity in any subsequent proceeding to implement or enforce its terms. The City does not admit liability for any purpose as to any allegation or matter arising out of the Notice Letter, the Supplemental Letter, and/or Complaint or subsequent incidents occurring during the term of this Consent Decree.
9. No change in ownership or corporate or other legal status of the City or any transfer of the City's assets or liabilities will in any way alter the responsibilities of the City, or any of its successors or assigns, under this Consent Decree.
10. In any action to enforce this Consent Decree, the City will 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
11. The term "Effective Date" shall mean the Effective Date of this Consent Decree, which shall be the date on which the District Court enters the final Consent Decree.
12. This Consent Decree will automatically and unconditionally terminate on March 31, 2017 ("Termination Date") unless the City seeks early termination of this Consent Decree pursuant to this paragraph. The City may seek early termination of this Consent Decree if the City has no more than eight (8) SSOs per Year from the City Collection System in two consecutive calendar years.*fn1
13. The City shall initiate early termination by submitting a letter to Channelkeeper demonstrating that it has satisfied the conditions of early termination set forth in Paragraph 12. Channelkeeper shall respond to the City's letter within twenty (20) days indicating whether it agrees with the City's contentions or request more information to determine whether to agree with the City's contentions. If Channelkeeper agrees with the City's contentions, then the City shall prepare a joint motion for termination of this Consent Decree for Channelkeeper's review and signature. Channelkeeper shall not unreasonably withhold its signature. The City shall then file the joint motion for termination. If Channelkeeper disagrees with the City's contentions or requests additional information, then the matter shall be subject to the Dispute Resolution provisions of Section XXV.
VII. SSO REDUCTION PERFORMANCE STANDARDS
14. The City will reduce its SSOs to comply with the following SSO Reduction Performance Standards and will direct B&C to design its recommendations referenced herein to achieve said standards*fn2
a. Limitation on total SSOs per year: Table 1 Maximum Number of SSOs 2012 18 2013 15 2014 12 2015 10 2016 8 Calendar Year
b. For purposes of determining compliance with the SSO Reduction Performance Standards, SSOs caused by: (i) severe natural conditions (such as storm events exceeding a 10-Year 24-Hour Storm, hurricanes, tornadoes, earthquakes, tsunamis, and other similar natural conditions) or (ii) human-caused catastrophes (such as catastrophic fires or acts of terrorism) shall not be counted.
VIII. SSO REDUCTION ACTION PLAN
15. The City shall report any failure to meet the applicable SSO Reduction Performance Standard in each Annual Report required under Section XX of this Consent Decree. In the event the City fails to meet the applicable SSO Reduction Performance Standard for any particular Year (as set forth in Table 1), the City shall prepare an SSO Reduction Action Plan designed to achieve compliance with the SSO Reduction Performance Standard set forth for the following calendar year, and submit it to Channelkeeper concurrently with the City's Annual Report.
16. The SSO Reduction Action Plan shall specify the actions taken in the Year for which the Annual Report was submitted that were designed to achieve compliance with the SSO Reduction Performance Standards, and shall specify additional measures to be taken during the upcoming Year and thereafter to achieve compliance with the SSO Reduction Performance Standards. The SSO Reduction Action Plan shall include a proposed schedule for implementation of all actions proposed.
17. If the City does not comply with SSO Reduction Performance Standards because of one or more SSOs for which the City had no feasible alternatives, based on reasonable engineering judgment, that it could have implemented to avoid the SSO(s), then the City's SSO Reduction Action Plan shall include an explanation to that effect and need not propose additional actions.
18. Channelkeeper will review the Action Plan and submit comments, if any, on the Action Plan within thirty (30) days of receipt. The City shall consider Channelkeeper comments in good faith, and shall have fifteen (15) days from receipt of Channelkeeper's comments to either incorporate those comments into the Action Plan, or explain in writing why those comments were not accepted. Disputes as to the adequacy of the Action Plan are to be resolved via Dispute Resolution as set out in Section XXV below. Following agreement on, or resolution of any dispute regarding the SSO Reduction Action Plan, the requirements ...