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California Sportfishing Protection Alliance v. City of Redding

United States District Court, Ninth Circuit

July 9, 2013

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, a non-profit corporation, Plaintiff,
v.
CITY OF REDDING, a municipality, Defendant.

Layne Friedrich (Bar No. 195431), Drevet Hunt (Bar No. 240487), LAWYERS FOR CLEAN WATER, INC., San Francisco, California, Michael Lozeau (Bar No. 142893), Douglas Chermak (Bar No. 233382), LOZEAU | DRURY LLP, Oakland, California, Attorneys for Plaintiff, CALIFORNIA SPORTFISHING PROTECTION ALLIANCE.

Kanwarjit S. Dua, SOMACH SIMMONS & DUNN, Attorneys for Defendant, City of Redding.

[PROPOSED] CONSENT DECREE

GARLAND E. BURRELL, Jr., Senior District Judge.

CONSENT DECREE

Plaintiff California Sportfishing Protection Alliance ("CSPA"), and Defendant City of Redding ("City") hereby enter into this Consent Decree. 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, its tributaries, and the Sacramento-San Joaquin River Delta;

WHEREAS, the City is a municipal corporation and is the permittee on the following permits: (1) Waste Discharge Requirements for City of Redding, Clear Creek Wastewater Treatment Plant, Order No. R5-2003-0130, NPDES Permit No. CA0079731 ("2003 Clear Creek NPDES Permit"); (2) Waste Discharge Requirements for the City of Redding, Clear Creek Wastewater Treatment Plant, Order No. R5-2010-0096, NPDES Permit No. CA0079731 ("2010 Clear Creek NPDES Permit"); (3) Waste Discharge Requirements for the City of Redding, Stillwater Wastewater Treatment Facility, Order No. R5-2007-0058, NPDES Permit No. CA0082589 ("2007 Stillwater NPDES Permit"); and (4) Waste Discharge Requirements (WDRs) for Storm Water 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, the City owns and operates a municipal sanitary sewer system, including two wastewater treatment plants, Clear Creek Wastewater Treatment Plant ("Clear Creek WWTP") and the Stillwater Wastewater Treatment Plant ("Stillwater WWTP") and associated wastewater collection systems;

WHEREAS, on May 7, 2012, CSPA issued a sixty (60)-day notice letter ("Notice Letter") to the City. The Notice Letter informed the City of CSPA's intention to file suit against the City for alleged violations of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., ("Clean Water Act"). The Notice Letter specifically notified the City of its alleged violations of (1) the 2003 Clear Creek NPDES Permit, (2) the 2010 Clear Creek NPDES Permit, (3) the 2007 Stillwater NPDES Permit, (4) the MS4 Permit and (5) section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), for the City's alleged unpermitted discharges of raw or partially treated sewage from the City's sewage collection system to waters of the United States;

WHEREAS, on July 17, 2012, CSPA filed its complaint in the United States District Court for the Eastern District of California ("District Court") against the City, Case No. 2:12-cv-01884-GEB-KJN (hereinafter "Complaint");

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

WHEREAS, on August 7, 2012, the Regional Water Quality Control Board, Central Valley Region ("Regional Board") and the City entered into a settlement entitled Settlement Agreement and Stipulation for Entry of Order; Order to settle Regional Board claims against the City related to certain sanitary sewer overflows ("SSOs"). The regional Board subsequently noticed the [Proposed] settlement for public comment;

WHEREAS, the Regional Board formally adopted the Settlement Agreement and Stipulation for Entry of Order; Order ("Regional Board Settlement Order") on December 6, 2012, as Order No. R5-2012-0112;

WHEREAS, in the Regional Board Settlement Order, the City agreed to the imposition of One Million Four Hundred and Fifty Thousand Dollars ($1, 450, 000.00) in administrative civil liability, including Eight Hundred Thousand Dollars ($800, 000.00) toward a Supplemental Environmental Project ("SEP"), Two Hundred and Twenty Five Thousand Dollars ($225, 000.00) to the State Water Pollution Cleanup and Abatement Account, Twenty-One Thousand Dollars ($21, 000.00) in mandatory minimum penalties, and the balance in stipulated penalties;

WHEREAS, in the Regional Board Settlement Order, the City and the Regional Board agreed that Eight Hundred Thousand Dollars ($800, 000.00) of the administrative civil liability will be suspended pending SEP completion ("SEP Suspended Liability") and that Four Hundred and Twenty-Five Thousand Dollars ($425, 000.00) shall be suspended and progressively waived pending completion of SEP project milestones ("Suspended Liability"). The SEP Suspended Liability and Suspended Liability amounts will be waived upon the City's completion of the Private Sewer Lateral Replacement Program and by meeting the Private Sewer Lateral SEP deliverables' goals in a timely fashion;

WHEREAS, under the Regional Board Settlement Order, the SEP will focus on capacity related problems at the Clear Creek and the Stillwater WWTPs. The SEP will include a Private Sewer Lateral Replacement Program, with the goal being to reduce inflow and infiltration ("I/I"). The Regional Board ordered that, "A reduction in I/I will benefit surface water quality and beneficial uses by decreasing the number and volume of spills of untreated or partially treated sewage from the [City's] collection system to surface waters during wet weather. In addition, the program will reduce the amount of flow to the Clear Creek and Stillwater WWTPs during wet-weather events...";

WHEREAS, under the Regional Board Settlement Order, the City agreed to complete the Private Sewer Lateral Replacement Program by February 1, 2018 and to implement the SEP in accordance with the applicable schedule and milestone dates. The City also agreed to fund the SEP, provide certifications and written reports to the Regional Board detailing SEP implementation, and to guarantee SEP implementation by remaining liable for the SEP Suspended Liability until the SEP is completed and the Regional Board accepts the SEP, in accordance with the Regional Board Settlement Order;

WHEREAS, under the Regional Board Settlement Order, if the City fails to expend all of the SEP Suspended Liability funds on the approved SEP, "the [City] shall pay the difference between the SEP Suspended Liability and the amount [the City] can demonstrate was actually spent on the SEP as an administrative civil liability";

WHEREAS, this Consent Decree addresses specifics related to the City's operation and maintenance of its collection system not fully addressed by the Regional Board Settlement Order;

WHEREAS, the Settling Parties, through their authorized representatives and without either adjudication of CSPA's asserted claims or admission by the City 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 ...


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