HomeMy WebLinkAbout2015-08-25; City Council; 22060; Third Amendment to National Pollutant Discharge Elimination System San Diego Regional Storm Water Copermittees Memorandum of UnderstandingCITY OF CARLSBAD-AGENDA BILL 2
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AB# 22,060 AUTHORIZING THE MAYOR TO EXECUTE THE THIRD DEPT. DIRECTOR {\-':1 ·
DATE: 08-25-2015 AMENDMENT TO THE NATIONAL POLLUTANT CITYATIY. fZI/(_
DISCHARGE ELIMINATION SYSTEM SAN DIEGO REGIONAL
STORM WATER COPERMITIEES MEMORANDUM OF ~ DEPT. PW-EM UNDERSTANDING CITY MGR.
RECOMMENDED ACTION:
Adopt Resolution No. 2015-211 authorizing the Mayor to execute the third amendment to the
National Pollutant Discharge Elimination System (NPDES) San Diego Regional Storm Water Copermittees
(Copermittees) Memorandum of Understanding (MOU) between the City of Carlsbad and the
Co permittees.
ITEM EXPLANATION:
On Dec. 18, 2007, City Council approved resolution 2007-325, authorizing the Mayor to execute the MOU
between the City of Carlsbad and the Copermittees with respect to compliance with NPDES Order No.
R9-2007-0001. The Copermittees include all incorporated cities in San Diego County, the County of San
Diego, the San Diego Unified Port District, and the San Diego County Airport Authority. This agreement
established a management structure to ensure implementation of NPDES Order No. R9-2007-0001.
On May 11, 2010, City Council approved resolution 2010-104, authorizing the Mayor to execute the first
amendment of this MOU, which provided clarification to the parties of the MOU on the terms and
conditions for crediting excess funds from one agreement year to the next, and on the ability to receive
reimbursement for tasks performed by one Copermittee for another Copermittee under the terms of the
MOU.
On April 22, 2014, City Council approved resolution 2014-068, authorizing the Mayor to execute the
second amendment of this MOU, which allowed Copermittees to continue sharing regional costs as
required by NPDES Order No. R9-2013-0001 (Permit), which was effective June 27, 2013. Changes
incorporated into this amendment also included clarification of Copermittee participation requirements,
clarification of conditions of breach of the MOU, and the addition of a work plan and budget for fiscal
year 2014-15.
The purpose of the third amendment to the MOU is to allow Copermittees to continue sharing regional
costs as necessary through the remainder of the requirements of the Permit. Other changes in this
amendment include the removal of workgroups and activities that are not required by the Permit,
DEPARTMENT CONTACT: Elaine Lukey 760-602-7582 elaine.lukey@carlsbadca.gov
FOR CLERK USE. ~ COUNCIL ACTION: APPROVED CONTINUED TO DATE SPECIFIC D
DENIED D CONTINUED TO DATE UNKNOWN D
CONTINUED D RETURNED TO STAFF D
WITHDRAWN D OTHER-SEE MINUTES D
AMENDED D REPORT RECEIVED D
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Third Amendment to NPDES Regionai f^OU
August 25, 2015
Page 2 of 2
inclusion of Brown Act requirements, and the addition of not-to-exceed amounts for fiscal years 2015-16,
2016-17, 2017-18, and 2018-19.
The City of Carlsbad staff recommends the execution of the third amendment to the MOU as the
Copermittees have determined it is in the best interest of all parties.
FISCAL IMPACT:
There are adequate funds in the Storm Water Protection Program's operating budget to fully fund the
city's obligation under the MOU. Funding for the first fiscal year of the third amendment to the MOU of
$53,027 was included in the operating budget submitted and approved by City Council on June 30, 2015.
ENVIRONMENTAL IMPACT:
Pursuant to Public Resources Code section 21065, this action does not constitute a "project" within the
meaning of CEQA in that it has no potential to cause either a direct physical change in the environment,
or a reasonably foreseeable indirect physical change in the environment, and therefore does not require
environmental review.
EXHIBITS:
1. Adopt Resolution No. 2015-211 authorizing the Mayor to execute the third amendment to
the National Pollutant Discharge Elimination System San Diego Regional Storm Water Copermittees
Memorandum of Understanding between the City of Carlsbad and the Copermittees.
2. The third amendment to the National Pollutant Discharge Elimination System San Diego Regional
Storm Water Copermittees Memorandum of Understanding. Note: Pages 17-19 of the third
amendment of the Memorandum of Understanding are signatory pages for other jurisdictions and
therefore, have been removed.
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EXHIBIT I
1 RESOLUTION NO. 2015-211
2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
3 CALIFORNIA, AUTHORIZING THE MAYOR TO EXECUTE THE THIRD
AMENDMENT TO THE NATIONAL POLLUTANT DISCHARGE
4 ELIMINATION SYSTEM SAN DIEGO REGIONAL STORM WATER
COPERMITTEES MEMORANDUM OF UNDERSTANDING.
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WHEREAS, the San Diego Regional Storm Water Copermittees (Copermittees) consist of
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the County of San Diego, the San Diego Unified Port District, the San Diego County Regional
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Airport Authority, and the incorporated cities of Carlsbad, Chula Vista, Coronado, Del Mar, El
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IQ Cajon, Encinitas, Escondido, Imperial Beach, La Mesa, Lemon Grove, National City, Oceanside,
11 Poway, Santee, San Diego, San Marcos, Solana Beach, and Vista; and
12 WHEREAS, on Dec. 18, 2007, the City Council, through Resolution 2007-325 authorized
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the Mayor to execute the Memorandum of Understanding (MOU) between the City of Carlsbad
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and the Copermittees as required pursuant to the National Pollutant Discharge Elimination
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System (NPDES) Order No. R9-2007-0001 by the San Diego Regional Water Quality Control
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17 Board; and
18 WHEREAS, on May 11, 2010, the City Council, through Resolution 2010-104, authorized
1^ the Mayor to execute the first amendment to the Copermittee MOU; and
WHEREAS, on April 22, 2014, the City Council, through Resolution 2014-068, authorized
the Mayor to execute the second amendment to the Copermittee MOU; and
WHEREAS, the third amendment provides clarification on the removal of workgroups
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24 and activities that are not required by the new NPDES Order R9-2013-0001, inclusion of Brown
25 Act requirements, and the addition of not-to-exceed amounts for fiscal years 2015-16, 2016-17,
2017-18, and 2018-19; and
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1 WHEREAS, the Copermittees, including the City of Carlsbad have determined that the
third amendment to the MOU is in the best interest of all parties;
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California
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as follows:
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, 1. That the above recitations are true and correct.
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7 2. That in the best interest of cooperation between the City of Carlsbad and other
8 Regional Copermittees, the City Council ofthe City of Carlsbad hereby authorizes
the Mayor to execute the third amendment to the Memorandum of
Understanding between the City of Carlsbad and the San Diego Regional
Copermittees.
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1 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City
2 of Carlsbad on the 25th day of August, 2015, by the following vote to wit:
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AYES: Council Members Hall, Blackburn, Schumacher, Wood, Packard.
NOES: None.
ABSENT: None.
ATTEST:
BARBARA ENGLESON, Ci
(SEAL)
EXHIBIT 2
Third Amendment to National Pollutant Discharge Elimination System
San Diego Regional Stormwater Copermittees
MEMORANDUM OF UNDERSTANDING
July 2,2015
This Memorandum of Understanding (MOU), entered into by the County of San Diego (County), the
San Diego Unified Port District (Port), the San Diego County Regional Airport Authority (Airport),
and the incorporated cities of San Diego, Carlsbad, Chula Vista, Coronado, Escondido,
Imperial Beach, La Mesa, San Marcos, Del Mar, El Cajon, Encinitas, Lemon Grove, National City,
Oceanside, Poway, Santee, Solana Beach, and Vista (Cities), collectively called Copermittees,
establishes the shared program responsibilities of each party with respect to compliance with the
National Pollutant Discharge Elimination System (NPDES) stormwater permit regulations
administered by the United States Enviroimiental Protection Agency (U.S. EPA) under the authority
granted by the Federal Water Pollution Control Act (Clean Water Act) 33 USCA 1251 et seq. as
amended.
RECITALS
WHEREAS, in 1987 Congress amended Section 402 ofthe Federal Water Pollution Control Act
(33 USCA §1342p) to require the U.S. EPA to promulgate regulations for applications for permits
for stormwater discharges; and
WHEREAS, the U.S. EPA adopted final permit regulations on November 16, 1990; and
WHEREAS, these permit regulations require the control of pollutants from stormwater discharges by
requiring an NPDES permit, which would allow the lawful discharge of stormwater into waters of
the United States; and
WHEREAS, the County, the Port, the Airport, and the Cities desire to implement an integrated
stormwater management program with the objective of improving surface water quality in the
County of San Diego, but do so without waiving and expressly subject to any and all objections and
appeals made by any Copermittee in response to any NPDES Permit; and
WHEREAS, the Califomia State Water Resources Control Board (CSWRCB) as designee ofthe
U.S. EPA has delegated authority to the San Diego Regional Water Quality Control Board (Regional
Board) for administration of the NPDES stormwater permit within the boundaries of its region; and
WHEREAS, on. May 8, 2013, the Regional Board issued an NPDES permit as Order No. R9-2013-
0001 (Permit) governing waste discharge requirements for stormwater and urban runoff from the
County, the Port, the Airport, and the Cities, naming these entities as Copermittees; and
WHEREAS, said Permit requires that the Copermittees cooperate in the implementation of various
Urban Runoff Management Plans;
NOW, THEREFORE, the parties hereto do mutually agree as follows:
San Diego Regional Stormwater Copermittees MOU -1 - Third Amendment: July 2, 2015
I. DEFINITIONS
At Large means representing all of the Copermittees of this MOU.
Chair means presiding over and providing leadership and direction to a Working Body. This
includes serving as a point of contact to extemal entities such as Regional Board staff, stakeholders,
and industry groups, soliciting group input on and developing meeting content, facilitating meetings,
and coordinating with the Secretary or Working Body Support staff to finalize work products for
distribution to the Working Body. Chair responsibilities may also be divided between Co-Chairs.
Contract Administration means developing, soliciting, awarding, and managing contracts.
Consensus means general agreement reached between the participants of a Working Body.
Direct Costs mean those costs directly related to the development of a work product, or to the
performance of a particular function or service. Direct Costs may include the wages of Copermittee
employees engaged in an activity and the cost of materials or supplies needed to support that
activity. Depreciation, equipment, and office space are not considered Direct Costs.
Fiscal Year starts on July 1 and ends on June 30 of the following year.
General Programs are collaborative urban runoff management activities which are (1) mandated by
or necessary to implement requirements of the Permit, (2) necessary to anticipate the requirements,
or prepare for renewal, of the Permit, (3) required to comply with Regional Board Orders or other
directives required of Copermittees as dischargers of urban mnoff (e.g., 13267 Orders, Total
Maximum Daily Loads, etc.), or (4) other urban mnoff management activities conducted with the
unanimous approval of Copermittees sharing the cost or responsibility.
In-kind Contribution means a non-monetary contribution that can be used to satisfy an equivalent
monetary obligation. Examples of In-kind Contributions are equipment or services provided for use.
Program Planning Subcommittee is composed as described in Section III.C.4 and 5.
Regional General Programs are activities that apply to all Copermittees, or that provide a regional
benefit to Copermittees as determined by the Regional Management Committee.
Regional Principal Permittee is the County of San Diego unless another Regional Principal
Permittee is selected in accordance with Section III.B.5. In addition to the responsibilities of all
Copermittees described in Section II, the Regional Principal Permittee provides general coordination
for the development and implementation of Regional General Programs, including the specific tasks
and responsibilities described in Section III.A. 1 .b.
Regional Stormwater Management Committee or Management Committee is composed as
described in Section III.B.2.
Representative means a Copermittee staff member or consultant who serves as a point of contact
and/or participant in the activities of a Working Body on behalf of the Copermittee. Except as
described in Section III.B (Regional Stormwater Management Committee), Representatives are not
required to attend meetings, but are expected to maintain a reasonable knowledge of, and
involvement in, the activities of the Working Body. To the best of their ability each Copermittee
Representative should have expertise and knowledge in the subject matter of each applicable
Working Body.
Secretary means a person who takes responsibility for the records, correspondence, minutes or notes
of meetings, and related affairs of a Working Body. This includes: maintaining group contact lists;
preparing and sending out meeting notifications and agendas; arranging for meeting rooms and
San Diego Regional Stormwater Copermittees MOU - 2 - Third Amendment: July 2, 2015
equipment; taking, preparing, and finalizing meeting minutes or notes; and, coordinating with the
Chair or Working Body Support staff to organize and distribute work products to the Working Body.
Simple Majority means at least one-half (50%) of applicable Copermittees, rounded up to the
nearest integer, or plus one where the number of Copermittees is even. For the purposes of this
MOU, a simple majority may never be less than three Copermittees.
Special Formula means any cost share formula that differs from the Default Formula in the
selection or weighting of individual factors or in the methodology used to calculate one or more of
them.
Three-fourths Majority means at least three-fourths (75%) of applicable Copermittees, rounded up
to the nearest integer. For the purposes of this MOU, a Three-fourths Majority may never be less
than three Copermittees.
Two-thirds Majority means at least two-thirds (67%) of applicable Copermittees, rounded up to the
nearest integer. For the purposes of this MOU, a Two-thirds Majority may never be less than three
Copermittees.
Urbanized Land Area means the total of all SANDAG land uses within the geographic area,
subject to the cost share, excepting therefrom, the following coded land uses: 1403 Military
Barracks; 4102 Military Airports; 6700 Military Use; 6701 Military Use; 6702 Military Training;
6703 Military Weapons; 7209 Casinos; 7603 Open Space Reserves, Preserves; 7609 Undevelopable
Natural Areas; 9200 Water; 9201 Bays, Lagoons; 9202 Inland Water; and 9300 Indian Reservations.
Watershed Copermittee means any Copermittee that is identified both as a Copermittee under
Table 1 .a and a Responsible Copermittee under any Watershed Management Area as defined in
Table B-1 ofthe Permit.
Watershed General Programs are activities that apply to the Copermittees comprising any
individual Watershed Management Area (WMA) defined in Table B-1 of the Permit, or providing a
general benefit to Copermittees within the WMA as determined by a Watershed Workgroup.
Working Body means Committees, Subcommittees, Workgroups, Sub-workgroups, or any other
group of Copermittees' employees assembled to conduct specific tasks required by, for, or in
furtherance of, compliance with the Permit.
Working Body Support means those tasks associated with carrying out the responsibilities of the
Working Body. This includes researching, drafting, modifying, and finalizing work products such as
work plans, budgets, and meeting materials. Working Body Support does not include chairing or co-
chairing meetings or tasks that are equitably divided amongst the Representatives of the Working
Body. Working Body Support tasks are reimbursable, and may be contracted by any participating
Copermittee.
II. RESPONSIBILITIES OF ALL COPERMITTEES
The following apply to General Programs.
A. Performance and Reimbursement of Tasks
1. Any individual Copermittee performing tasks necessary to fulfill budgeted General Program
responsibilities for a Working Body is entitled to reimbursement of the costs incurred in
accordance with section II.B.
2. Any Copermittee performing contract administration tasks to fulfill budgeted General
Program responsibilities for a Working Body is entitled to reimbursement of contract
San Diego Regional Stormwater Copermittees MOU - 3 - Third Amendment: July 2, 2015
management costs at a rate of 5% of the total contract cost or as otherwise agreed on by the
participating Copermittees.
3. Any Copermittee performing tasks other than contract administration or voluntarily serving
as a Working Body Chair, Co-chair, or Secretary, is entitled to reimbursement of the Direct
Costs of performing those services in accordance with section II.B.
4. A Copermittee shall not be obliged to conduct work, enter into any contract, continue with
any work or contract, or incur any other cost on behalf of other Copermittees if each
Copermittee has not contributed the funds that it is obliged to contribute toward the activity
or program, or if the Copermittee has not received adequate assurances that such funds will
be received before payments become due. The Copermittee shall have sole discretion to
determine whether assurances that require funds will be timely received or adequate.
5. A member of a Working Body providing Working Body Support may terminate those
obligations for convenience, but shall first make a good faith effort to carry out or transfer
existing responsibilities to another party.
B. Fiscal Responsibilities
1. Division of Shared General Program Costs
a. Prior to the allocation of shared costs, each proposed or approved budget task or
sub-task shall be identified as either a Regional General Program cost or a
Watershed General Program cost, and the Copermittees sharing that cost shall be
identified. The cost of any particular budget element shall be subject to the approval
of only the Copermittees to which it applies. The associated costs shall be divided
among participating Copermittees as described below..
(1) Default Formula. Shared costs shall be divided according to a Default Formula of
45% Urbanized Land Area, 45% Population, and 10% Equal Division unless a
Special Formula is approved by the Copermittees to which the cost applies.
(a) Population costs shall be divided among the Copermittees as follows:
Whenever any geographic portion of the Port or Airport jurisdiction(s),
respectively, lies(s) within the geographic area to which the shared
program or activity is applicable, the Port or Airport, respectively, will
each pay a fixed 0.5% of total Population costs. The remaining
percentage of the population costs shall be divided among Copermittees
by dividing the total population of each Copermittee by the combined
total Copermittee population within the geographic area applicable to the
shared program or activity. These percentages shall be calculated using
the most recently available population data available from the San Diego
Association of Governments (SANDAG), unless more recent data are
available from an equivalent source such as the U.S. Census Bureau, and
are determined to be acceptable by the Copermittees sharing the cost.
(b) Urbanized Land Area costs shall be divided among Copermittees by
dividing the total Urbanized Land Area of each Copermittee by the
combined total Urbanized Land Area of all participating Copermittees
within the geographic area applicable to the shared program or activity.
Urbanized Land Area shares shall be calculated using the most recently
available San Diego Association of Govemments (SANDAG) land use
statistics. The Urbanized Land Area share for the County shall include
those urbanized lands in the unincorporated portion of the County that are
San Diego Regional Stormwater Copermittees MOU - 4 - Third Amendment: July 2, 2015
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west ofthe County Water Authority (CWA) service area boundary as it
exists on the date of this MOU or as formally amended by the CWA.
(c) Ten Percent (10%) of the total cost to be shared shall be divided equally
amongst all of the Copermittees.
(d) Modification of the Default Formula requires the unanimous vote of all
Copermittees. For cost sharing that applies only to a group that contains
fewer than all Copermittees, a unanimous vote is required of all affected
Copermittees.
(2) Special Formulas.
Special Formulas may be applied to any shared Regional or Watershed
General Program cost, and require the unanimous vote of the
Copermittees participating in the cost.
(3) In-kind Contributions. Subject to approval by the Copermittees participating in a
particular shared General Program budget, a Copermittee may provide an in-kind
contribution of equal value rather than a monetary contribution toward all or part of
the cost of an activity. Copermittee in-kind contributions may include Working
Body Support.
2. Work Plans and Shared Cost Budgets
a. Limitations on Cost-sharing
General Program activities that may be cost-shared by the Copermittees include
collaborative urban mnoff management activities which are (1) mandated by or
necessary to implement requirements of the Permit, (2) necessary to anticipate the
requirements, or prepare for renewal, of the Permit, (3) required to comply with
Regional Board Orders or other directives required of Copermittees as dischargers
of urban runoff (e.g., 13267 Orders, Total Maximum Daily Loads, etc.), or (4) other
urban runoff management activities conducted with the unanimous approval of
Copermittees sharing the cost or responsibility.
Examples of such activities include:
(1) Development or implementation of any program requirements of the MS4
Permit, such as, the BMP Design Manual, regional education and outreach,
or Water Quality Improvement Plans;
(2) Public participation activities, such as facilitating public meetings and
workshops;
(3) Program assessment;
(4) Plan updates;
(5) Water quality monitoring, assessment and reporting;
(6) Annual reporting, including establishment and management of data and
information clearinghouses;
(7) Preparation of technical analyses, recommendations and comments
regarding the MS4 Permit, total maximum daily loads, and other relevant
storm water quality regulations;
San Diego Regional Stormwater Copermittees MOU - 5 - Third Amendment: July 2, 2015
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(8) Preparation of documents required by the MS4 Permit, such as Reports of
Waste Discharge; and
(9) Special studies related to storm water quality-related pollutants, their
sources, and potential best management practices.
b. Regional Work Plans and Shared Cost Budgets
1. No later than October 3 T' of each year, each Regional Working Body shall prepare
and submit to the Planning Subcommittee a Work Plan and Shared Costs Budget for
the upcoming Fiscal Year.
2. Each Work Plan shall identify the parties that will serve as a Working Body Chair,
Co-chair, or Secretary for the upcoming Fiscal Year. These assignments will be
served on a fiscal year basis, and shall be for a minimum term of one year.
3. A Copermittee may not be compelled to act, or continue acting, as a Working Body
Chair, Co-chair, or Secretary, and may at any time terminate an existing assignment.
Before doing so, the Copermittee shall first make a good faith effort to carry out or
transfer existing responsibilities.
4. Each budget shall describe major tasks, schedules, and projected costs, which
Copermittees will provide Working Body Support, Contract Administration, in-kind
contributions, and any other information applicable to regional general program
costs.
5. To ensure that each Copermittee goveming body has sufficient time to consider
fiscal impacts, the Planning Subcommittee shall prepare a consolidated draft
Regional Work Plan and Shared Costs Budget no later than December 31st of each
year for the regional general programs. After consideration of comments and
discussion, a final Regional Work Plan and Shared Costs Budget shall be prepared,
approved by the Management Committee, and distributed to the Copermittees no
later than January 31" of each year. The consolidated Regional Work Plan and
Shared Costs Budget shall also identify the party or parties serving as Regional
General Program operations fund managers.
6. Modifications to any adopted Regional Work Plan and Shared Costs Budget that
will result in an overall increase in cost require the approval of the Regional
Management Committee.
c. Watershed Work Plans and Shared Cost Budgets
1. Each Watershed Workgroup, for which costs will be shared, shall prepare, adopt,
and distribute to the participating Copermittees a Watershed Work Plan and Shared
Costs Budget.
2. Each Watershed Work Plan and Shared Costs Budget shall include a description of
major tasks, schedules, and projected costs, and shall identify the Copermittees that
will provide or contract services or incur other costs. It shall also identify the party
or parties serving as Watershed General Program operations fund managers.
3. Modifications to any adopted Watershed Shared Costs Budget and Work Plan that
will result in an overall increase in cost require the unanimous approval of the
applicable Copermittees.
Cumulative Budget Limits
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The total Shared Cost Budget authorized under this MOU may not exceed the
Cumulative Limits specified for each spending category in Table 1. These values
represent the maximum amount that may be cost-shared for each spending category
for the duration of this MOU. They do not represent funding commitments. Once a
Cumulative Limit has been reached, the Copermittees must establish separate
agreements for sharing additional costs for that budget category. The estimated
annual limits shown for each fiscal year are for planning purposes only. Where an
estimated annual limit is not reached in any fiscal year, the surplus amount may be
carried over into subsequent fiscal years, so long as the Cumulative Limit is not
exceeded. Budget limhs apply only to their designated budget category. They may
not be exchanged or credited across budget categories. Spending in each budget
category may not exceed the applicable Cumulative Limit under any circumstances.
Table 1; Not-to-exceed Limits by Budget Category
Budget
Category
Estimated Annual Spending Limits
FY 2015-16 FY 2016-17 FY 2017-18 FY 2018-
19
Cumulative
Limit
1. Regional
General
Programs
$1,782,597 $900,200 $1,000,200 $900,200
2. Watershed
General
$4,583,197
a) San Luis Rey
WMA
$779,025 $823,550 $697,091 $975,456 $3,275,122
b) San Dieguito
WMA
$337,944 $854,136 $340,950 $545,203 $2,078,233
c) Los
Penasquitos
WMA
$744,313 $804,510 $561,095 $680,663 $2,790,581
d) SanDiego
River WMA
$1,151,733 $742,219 $574,802 $800,161 $3,268,915
e) SanDiego
Bay WMA
$1,260,000 $862,000 $1,038,000 $924,000 $4,084,000
f) Tijuana
River WMA
$400,000 $450,000 $320,000 $375,000 $1,545,000
3. Total Not-to-
exceed Amount
$6,485,612 $5,436,615 $4,532,138 $5,200,683 $21,625,048
4. Management and Payment of Funds
a. For Regional General Programs, the Copermittees shall each pay a yearly
assessment into one or more Regional General Program operations funds for their
respective portion of any Regional Shared Costs Budget approved pursuant to this
MOU. The Regional General Program operations fund shall be managed by the
Regional Principal Permittee, or any other Permittee on approval of the
Copermittees.
b. For Watershed General Programs, the applicable Watershed Copermittees shall each
pay an assessment into one or more Watershed General Program operations funds
for their assigned portion of any Watershed Shared Costs Budget approved pursuant
to this MOU. Each Watershed General Program operations fund shall be managed
San Diego Regional Stormwater Copermittees MOU - 7 -Third Amendment: July 2, 2015
by the Watershed Lead Permittee, or any other Watershed Permittee on approval of
the participating Copermittees.
c. The Copermittee managing each General Program operations fund shall provide
Budget Balance and Expenditure Status Reports following the end of each fiscal
year. This shall include a detailed accounting of all costs and expenses in
accordance with the adopted Work Plan and Shared Costs Budget, including those
incurred by Copermittees providing Working Body Support, contracting services,
in-kind services, or other applicable costs.
d. Each Copermittee shall pay invoices within 60 days of receipt from the Copermittee
managing the applicable General Program operations fund.
e. Funds collected and not expended in any fiscal year shall be credited to the
Copermittees' share of the next fiscal year's costs in accordance with the
Copermittees' defined shared costs.
f Copermittees providing Working Body Support, Contract Administration, in-kind
services, or incurring other budgeted costs on behalf of other Copermittees shall
provide documentation of those expenses as requested by the Copermittee managing
the applicable General Program operations fund. They shall only receive credit for
those expenses if a detailed accounting of all costs and expenses meeting the
minimum standards agreed upon by the Copermittees has been provided.
g. Differences in the approved actual cost of expenses from those budgeted shall be
either credited or added as appropriate to the amount of the Copermitttee's share. In
the event that any Copermittees' share of the next fiscal year's costs is less than the
amount to be credited, the difference shall be refunded to the Copermittee. Refunds
shall be provided to Copermittees no later than 90 days after final accounting.
h. At its discretion, a Copermittee managing a General Program operations fund may,
prior to the completion of a fiscal year, make payment to any Copermittee providing
Working Body Support, Contract Administration, in-kind services, or incurring
other budgeted expenditures on behalf of other Copermittees so long as all of the
conditions of Section II B.4.f above have been satisfied and there are sufficient
funds available to make a payment without requiring addhional contributions or
jeopardizing program objectives. If for some reason excess payment is made, the
Copermittee receiving the payment agrees to retum the additional payment without
any recourse against the managing Copermittee.
III. REGIONAL GENERAL PROGRAMS
In addition to the requirements of Section II, the following apply to Regional General Programs.
A. Regional Principal Permittee
1. The County is hereby designated Regional Principal Permittee (Principal Permittee).
a. The County or any other Copermittee may not be compelled to act, or continue
acting, as Principal Permittee. A Copermittee may at any time terminate its
assignment as Principal Permittee, but shall first make a good faith effort to carry
out or transfer existing responsibilities.
b. In addition to the responsibilities of all Copermittees described in Section II, the
Principal Permittee shall provide general coordination for the development and
San Diego Regional Stormwater Copermittees MOU - 8 - Third Amendment: July 2, 2015
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implementation of Regional General Programs, including the following tasks and
responsibilities:
(1) Establish, chair, and provide overall coordination and leadership of the Regional
Stormwater Management Committee (Management Committee) and the Regional
Program Planning Subcommittee (Planning Subcommittee).
(2) Maintain a current contact list of Copermittees and interested parties.
(3) Maintain knowledge of and advise the Copermittees regarding current and
proposed state and federal policies, regulations, and other NPDES programs;
assist the Copermittees in the development and presentation of positions on these
issues before local, state, and federal agencies.
B. Regional Stormwater Management Committee
1. The purpose of the Regional Stormwater Management Committee (Management
Committee) is to provide a public fomm for the development, approval, and coordination of
urban runoff management programs, and for the exploration of issues of regional
significance.
2. The Management Committee shall consist of one Representative of each Copermittee. Each
Copermittee shall have one vote.
3. The Management Committee shall meet at least annually.
4. At a minimum, the Management Committee shall have the following responsibilities:
a. Address common issues, promote consistency among jurisdictional and watershed
programs, and plan and coordinate activities required under the Permit;
b. Develop, implement, and arrange for implementation of Regional General
Programs;
c. Provide a general forum for informing and receiving input from stakeholders and
interested parties;
d. Provide a forum for public participation in the development and implementation of
regional urban runoff management programs and activities;
e. Establish or modify Working Bodies to review specific issues, make
recommendations, or conduct work in support of shared regional priorities or
objectives;
f Formally approve the recommendations, work products, and deliverables of
Working Bodies presented for consideration;
g. Adopt an Annual Regional Work Plan and Shared Costs Budget in accordance with
the budgetary limits set forth in Table 1;
h. Approve an Annual Regional Work Plan and Shared Costs Budget; and
i. Approve year-end Budget Balance and Expenditure Status Reports.
5. The Management Committee shall be chaired by the Principal Permittee, or may
altematively be chaired or co-chaired by any other Copermittee. A reassignment or change
in the responsibilities of the Principal Permittee requires a three-fourths majority approval of
all Copermittees.
6. Voting Requirements for the Management Committee
San Diego Regional Stormwater Copermittees MOU -9- Third Amendment: July 2, 2015 \
a. For a meeting or a vote to be held, a quorum of a Two-thirds Majority of voting
representatives of the Management Committee must either be present or participate
remotely via legally acceptable electronic communication (telephone, voice over
intemet protocol, etc.).
b. Management Committee voting shall not be conducted outside of meetings (e.g., by
email).
c. For a motion to be approved, an affirmative vote of a Simple Majority of the
Management Committee is needed.
d. On approval ofthe Management Committee, activities undertaken by a subset of
Copermittees, but providing a regional benefit to Copermittees, may be considered
Regional General Programs.
e. Approval of any shared cost requires a unanimous vote of all Copermittees
participating in the cost.
7. Meetings ofthe Management Committee, including any closed sessions with legal counsel,
shall be conducted in accordance with the "Brown Acf (Govemment Code Section 54950 et
seq.). Except for official meetings of the Management Committee, nothing herein shall be
interpreted to require meetings between staff members of the individual Copermittees
(including designated representatives of the Copermittees) to be subject to the Brown Act,
where the Brown Act would not otherwise apply.
Regional Program Planning Subcommittee
1. The purposes ofthe Regional Program Planning Subcommittee (Planning Subcommittee)
shall be to provide regional coordination of urban mnoff management activities, to develop
and implement Regional General Programs, and to coordinate the activities of Working
Bodies.
2. At a minimum, the Planning Subcommittee shall have the following responsibilities:
a. Serve as an intermediary between the Management Committee and other
Copermittee Working Bodies;
b. Plan and coordinate Management Committee meetings;
c. Establish or modify Regional Workgroups to review specific issues, make
recommendations, or conduct work in support of shared regional priorities or
objectives;
d. Oversee, coordinate, and track the progress of As-Needed Regional Workgroups in
developing specific work products, responding to information requests, and
completing tasks;
e. Establish and maintain a calendar of Copermittee meetings and events;
f Conduct regional program planning including developing an Annual Regional Work
Plan and Shared Costs Budget for Management Committee consideration and
approval;
g. Review and recommend Management Committee approval of work products,
recommendations, and requests of Regional Workgroups for consideration and
approval;
h. Annually receive, review, comment on, and consolidate the recommended Work
Plans and Shared Costs Budgets of each Regional Workgroup;
i. Coordinate and liaise with Regional Board staff stakeholders, regulated parties, and
other interested parties to identify and explore key regional issues and concems.
j. Provide Representation to the Califomia Stormwater Quality Association (CASQA);
San Diego Regional Stormwater Copermittees MOU -10 - Third Amendment: July 2, 2015
k. Provide representation or participation for other professional organizations and
societies as appropriate and feasible;
1. Provide regular updates to Copermittees and interested parties via Management
Committee meetings or other appropriate means (e-mail, etc.); and
m. Provide subject area input as needed for the development, implementation, review,
and revision of General Programs, and the development of associated reports and
work products.
3. The Planning Subcommittee shall be chaired by the Principal Permittee, or may alternatively
be chaired or co-chaired by any other Copermittee upon approval of the Management
Committee.
4. Planning Subcommittee meetings shall be open to all Copermittees; however, voting
membership in any year shall be limited to one representative of each Watershed
Management Area (WMA) listed in Permit Table a.1 except the South Orange County
WMA. Any Copermittee may only represent one WMA. For each fiscal year, each WMA
will designate a Copermittee as a voting member of the Planning Subcommittee prior to the
beginning ofthat fiscal year. Each WMA may also designate an altemate voting member.
5. Each voting member shall be considered an at-large member. Their purpose is to represent
the interests of all Copermittees of this MOU rather than those of their specific WMAs.
6. The Planning Subcommittee may not alter the responsibilities of or impose new fiscal
obligations on, any Copermittee or Working Body, except as approved by the Management
Committee. However, the Planning Subcommittee may approve changes to approved
Annual Regional Work Plans and Shared Costs Budgets within approved annual budget
limits.
7. Voting Requirements for the Planning Subcommittee:
a. The Planning Subcommittee shall only make advisory recommendations for items
requiring Management Committee approval.
b. The Planning Subcommittee may use any voting methodology it deems appropriate
to develop advisory recommendations or conduct other business, and, shall present
minority or dissenting recommendations for consideration by the Management
Committee as applicable.
c. Except as prohibited by law, the Planning Subcommittee may conduct votes outside
of meetings (e.g., by e-mail) as appropriate.
8. Meetings ofthe Planning Subcommittee, including any closed sessions with legal counsel,
shall be conducted in accordance with the "Brown Acf (Govemment Code Section 54950 et
seq.). Except for official meetings of the Planning Subcommittee, nothing herein shall be
interpreted to require meetings between staff members of the individual Copermittees
(including designated representatives of the Copermittees) to be subject to the Brown Act,
where the Brown Act would not otherwise apply.
D. Regional Workgroups
1. The purpose of Regional Workgroups is to provide staffing and perform tasks and develop
work products requested by the Regional Management Committee or the Regional Program
Planning Subcommittee, and provide related coordination of activities and work products
with stakeholders and interested parties. Regional Workgroups are advisory to the
Management Committee through the Planning Subcommittee.
2. Copermittee participation on Regional Workgroups is voluntary.
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3. No minimum meeting frequency is required. The Regional Workgroups shall meet as
necessary to coordinate the performance of specified work products as staff to implement the
Permit.
4. At a minimum, each Regional Workgroup shall have the following responsibilities:
a. Facilitate consistency in the development, implementation, review, and revision of
General Programs, and develop associated reports and work products.
b. By October 31 st of each year, prepare and submit to the Planning Subcommittee a
recommended Work Plan for the activities of the Workgroup in the ensuing fiscal
year. This shall include a description of major tasks, deliverables, and projected
schedules, and the assignment and/or division of responsibilities for task
completion.
c. Provide subject area input to other Regional Workgroups as needed.
As necessary, coordinate and liaise with Regional Board staff, stakeholders,
regulated parties, and other interested parties regarding applicable tasks.
5. Voting Requirements for Regional Workgroups
a. Regional Workgroups shall make consensus support staff recommendations to the
Planning Subcommittee, who shall in tum make recommendations for formal votes
to the Management Committee.
b. Regional Workgroups may use any voting methodology they deem appropriate to
develop consensus, and, as applicable, shall present minority or dissenting
recommendations for consideration.
c. Regional Workgroups may conduct votes outside of meetings (e.g., by email) as
appropriate.
IV. WATERSHED GENERAL PROGRAMS
The following apply to Watershed General Programs.
A. Watershed Workgroups
1. The purpose of Watershed Workgroups is to allow Copermittees within a Watershed
Management Area to share costs for watershed activities and programs. Watershed
Workgroups may use this MOU to share costs for convenience, but are not required to do so.
2. No action is required for the Copermittees within a Watershed Management Area to
establish a Watershed Workgroup.
3. Watershed Workgroups may share costs as part of this MOU up to the cumulative limits
identified in Table 1. These values represent the maximum amount that may be cost-shared
by a Watershed Workgroup for the duration of this MOU. They do not represent funding
commitments. Once a cumulative limit has been reached, the Watershed Copermittees must
establish separate agreements for sharing additional costs. Costs that may be shared by
Watershed Workgroups are identified in section II.B.2.a.
4. Management and payment of funds by Watershed Workgroups shall be conducted in
accordance with the requirements of section II.B.4. Any Watershed Copermittee may
manage a Watershed General Program operations fund.
5. No minimum meeting frequency is required for any Watershed Workgroup. The Watershed
Workgroups shall meet as necessary to coordinate the performance of specified work tasks
as staff to implement the Permit.
San Diego Regional Stormwater Copermittees MOU - 12 - Third Amendment: July 2, 2015
\1
6. On approval ofthe Watershed Workgroup, activities undertaken by a subset of Watershed
Copermittees, but providing a general benefit to Copermittees within the WMA, may be
considered Watershed General Programs.
7. Watershed Workgroups may use any method they deem appropriate to conduct votes or
develop consensus. However, the following requirements shall apply for any vote to share
costs:
a. The voting membership of each Watershed Workgroup shall consist of one
designated voting representative for each Watershed Copermittee participating in the
cost; and
b. For a vote to pass, an affirmative vote of all Copermittees participating in the cost is
needed.
8. Meetings of any Watershed Workgroup, including any closed sessions whh legal counsel,
shall be conducted in accordance with the "Brown Acf (Govemment Code Section 54950 et
seq.) as applicable. Except for official meetings of a Watershed Workgroup, nothing herein
shall be interpreted to require meetings between staff members of the individual
Copermittees (including designated representatives of the Copermittees) to be subject to the
Brown Act, where the Brown Act would not otherwise apply.
V. DISPUTE RESOLUTION
Should a dispute arise among any of the parties regarding any matter related to this MOU, the parties
agree to first meet and confer in good faith to attempt to resolve the dispute. If that fails to resolve
the dispute, they shall submit the matter to mediation.
1. Mandatory Non-binding Mediation. If a dispute arises out of or relates to this MOU, or the
breach thereof, and if the dispute cannot be settled through normal contract negotiations, the
Parties agree to attempt to settle the dispute in an amicable manner, using mediation under
the Mediation Rules of the American Arbitration Association [AAA] or any other neutral
organization agreed to by the parties. A mediation session is required before having
recourse in a court of law. The cost of mediation shall be bome by the parties equally.
2. Selection of Mediator. A single Mediator that is acceptable to all Parties shall be used to
mediate the dispute. The Mediator may be selected from lists furnished by the AAA or any
other agreed upon Mediator. To initiate mediation, the initiating Party shall serve a Request
for Mediation on the opposing Party.
3. Conduct of Mediation Sessions. Mediation hearings will be conducted in an informal
marmer and discovery will not be allowed. All discussions, statements, or admissions in the
mediation process will be confidential settlement negotiations under Ca. Evidence Code
section 1152. The Parties may agree to exchange any information they deem necessary.
a. Both Parties must have an authorized representative attend the mediation. Each
representative must have the authority to recommend entering into a settlement.
Either Party may have attomey(s) or expert(s) present.
b. Any agreements resulting from mediation shall be documented in writing. All
mediation results and documentation, by themselves, shall be "non-binding" and
inadmissible for any purpose in any legal proceeding, unless such admission is
otherwise agreed upon, in writing, by both Parties. Mediators shall not be subject to
any subpoena or liability and their actions shall not be subject to discovery.
San Diego Regional Stormwater Copermittees MOU - 13 - Third Amendment: July 2, 2015
VL GENERAL PROVISIONS
A. Term of Agreement
1. This MOU shall become effective on the date the last party executes the MOU.
2. The life of the MOU shall mn through August 2019, or with the life of the current Permit
plus twelve months, whichever is longer. For purposes of this paragraph, any permit
renewal or replacement after May 2019 shall be considered a new permit; any earlier
amendment of the Permit increasing the obligations of the Regional Principal Permittee or a
Watershed Lead Permittee may at that Copermittee's sole option, be declared to be a new
permit; and the Management Committee shall determine whether any other earlier
amendment to the Permit is of such significance as to effectively be a new Permit.
B. Withdrawal of Copermittee
1. Participation in this MOU may be withdrawn by any Copermittee for any reason only after
the Copermittee complies with all of the following conditions of withdrawal:
a. The Copermittee shall notify all of the other Copermittees in writing 90 days prior to
its intended date of withdrawal.
b. Any expenses associated with withdrawal, including but not limhed to, filing and
obtaining the withdrawing Copermittee's individual NPDES permit and the
amendment of the Permit will be solely the responsibility of the withdrawing
Copermittee.
c. The withdrawing Copermittee shall be responsible for their portion of any shared
costs incurred according to the conditions of this MOU up to the time that each of
the conditions in Section VLB.I.a. has been met.
d. Any monies paid by withdrawing Copermittee in excess of the amount due under the
terms of the MOU shall be refunded to the Copermittee at the time the withdrawal
becomes final as set forth in Section VLB.I.a.
e. The withdrawing Copermittee shall not be entitled to participate in the division of
proceeds in any reserve fund account when the MOU is dissolved.
C. Non-Compliance with MOU Requirements
1. Any participant to this MOU found to be in non-compliance with the conditions of this
MOU shall be solely liable for any lawfully assessed penalties resulting from such non-
compliance. Failure to comply with MOU conditions within specified or agreed upon
timelines shall constitute non-compliance with the MOU.
2. Limitations on Use of Funds. Notwithstanding the rights and obligations of the Parties
created by this MOU, no Party may be found in breach of this MOU where compliance
would require that Party to violate any law or grant assurance, including but not limited to
provisions of the Federal Aviation Administration 1999 Policy and Procedure Conceming
the Use of Airport Revenue [64 Fed. Reg. 7696, dated Feb. 16, 1999]; the Airport and
Airway Improvement Act of 1982 codified at 49 U.S.C. § 47107(b); the Federal Aviation
Administration Authorization Act of 1994, P.L. 103-305 (Aug. 23, 1994); the Airport
Revenue Protection Act of 1996, Title VIII of the Federal Aviation Administration Act of
San Diego Regional Stormwater Copermittees MOU - 14 - Third Amendment: July 2, 2015
1996, P.L. 104-264 (Oct. 9, 1996), 110 Stat. 3269 (Oct. 9, 1996); 49 U.S.C. § 46301(n)(5);
and 49 U.S.C. § 47133. The Parties recognize that the Authority has received federal Airport
Improvement Project ("AIP") grants containing grant assurance 25, which provides: "All
revenues generated by the airport ... will be expended by it for the capital or operating costs
ofthe airport; the local airport system; or other local facilities which are owned or operated
by the owner or operator of the airport and which are directly and substantially related to the
actual air transportation of passengers or property; or for noise mitigation purposes on or off
the airport."
D. Amendments to the Memorandum of Understanding
This MOU may be amended only by unanimous consent of all Copermittees. No amendment shall
be effective unless it is in writing and signed by the duly authorized representatives of the
Copermittees.
E. Governing Law
This MOU shall be govemed and constmed in accordance with the laws of the State of Califomia. If
any provision or provisions shall be held to be invalid, illegal, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be affected or impaired
thereby.
The headings used throughout this MOU are for convenience only and do not in any way limit or
amplify the terms or provisions of the MOU.
F. Consent and Breach Not Waiver
No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or
consent shall be in writing and signed by the Copermittee to have waived or consented. Any consent
by any Copermittee to, or waiver of a breach by the other, whether expressed or implied, shall not
constitute a consent to, waiver of, or excuse for any other different or subsequent breach.
G. No Indemnification
1. Each Copermittee shall have the sole responsibility to comply with the Permit.
2. Each Copermittee shall pay all fines, penalties, and costs which may arise out of
such Copermittee's non-compliance with the Permit.
3. By entering into this MOU, no Copermittee assumes liability for claims or actions
arising out ofthe performance of any work or actions or omissions, by any other
Copermittee, its agents, officers, and employees under this MOU.
4. By entering into this MOU, each Copermittee agrees to defend itself from any claim,
action or proceeding arising out of the acts or omissions of itself and retain its own
legal counsel, and bear its own defense costs.
H. Application of Prior Agreements
This MOU constitutes the entire Agreement between the parties with respect to the subject matter;
all prior agreements, representations, statements, negotiations, and undertakings are superseded
hereby.
San Diego Regional Stormwater Copermittees MOU -15 - Third Amendment: July 2, 2015
Right to Audit
Each Party retains the right to review and audit, and the reasonable right of access to other Parties'
respective premises to review and audit the other Parties' compliance with the provisions of this
MOU (Party's Right). The Party's Right includes the right to inspect and photocopy same, and to
retain copies, outside of the Parties' premises, of any and all records, including any and all books,
records, and documents, related to this MOU with appropriate safeguards, if such retention is
deemed necessary by the auditing Party in its sole discretion. This information shall be kept by the
auditing Party in the strictest confidence allowed by law.
Execution of Agreement
This MOU may be executed in counterpart and the signed counterparts shall
constitute a single instrument. In the event that any Copermittee is unable to execute this
amendment prior to August 31, 2015, execution of this amendment after that date shall constitute
ratification of this amendment, and the MOU and extensions shall be in effect once all signatures are
obtained.
San Diego Regional Stormwater Copermittees MOU -16 - Third Amendment: July 2, 2015
Except as hereinabove amended, the National Pollutant Discharge Elimination System, San Diego
Regional Storm water Copermittees, Memorandum of Understanding shall remain in full force and effect.
In the event of a conflict between the provisions of the MOU and those of this Amendment, this
Amendment shall control.
IN WITNESS WHEREOF, this Third Amendment to MOU is executed as follows:
Date:
City of Car sbad, Copermltlee
San Diego Regional Stormwater Copermittees MOU -20 -Third Amendment: July 2, 20 IS