HomeMy WebLinkAbout2024-06-25; City Council; Resolution 2024-159Fifth Amended National Pollutant Discharge Elimination System
San Diego Regional Stormwater Copermittees
MEMORANDUM OF UNDERSTANDING
2024
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
Environmental 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 of the 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 California State Water Resources Control Board (CSWRCB) as designee of the 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, as amended by Order Nos. R9-2015-0001 and R9-2015-0100, NPDES No. CAS0109266, (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 Water Quality Improvement Plans and watershed management strategies to comply with the Permit and any future amendments and/or reissuances thereto.
Attachment A
NOW, THEREFORE, the parties hereto do mutually agree as follows:
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 external 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, negotiating, and managing contracts.
Consensus means general agreement reached between the participants of a Working Body.
Copermittee, for the purposes of this agreement, means a stormwater agency located within San Diego County identified in Table 1a of the 2013 Permit, as amended.
Default Formula is the formula by which shared costs budgets for Regional General Programs or
Watershed General Programs identified in Table 1 of this MOU are calculated, as described in Section
II.B.1.a.(1).
Direct Costs mean those costs directly related to the development of a work product, and/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, and/or contracts or consultants,
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 point-source dischargers of urban runoff (e.g., 13267 Orders, Total Maximum Daily Loads, etc.), or (4) other stormwater and/or watershed 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 or Planning Subcommittee is composed as described in Section
III.C.4 and 5.
Regional General Program(s) 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.A. 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.
Regional Work Plan is a work plan that is one or more of the following: (1) developed and adopted
annually for the purpose of conducting regional business 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 orders, directives, and/or regulatory mandates required of
Copermittees as dischargers of municipal stormwater (e.g., 13267 Orders, Total Maximum Daily Loads,
etc.), or (4) other stormwater and/or watershed management activities conducted with the unanimous
approval of Copermittees sharing the cost or responsibility.
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
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.
Shared Cost Budget is one that is agreed upon and shared by Copermittees for the purpose of conducting
stormwater regulatory activities, and can be developed at a watershed, regional or other scale. The
timeframe of shared cost budgets may be annual (fiscal year) or multi-year.
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.
Voting Member means a Copermittee or Watershed Copermittee acting as an at-large representative
responsible for voting on items as described in Section III.B. and Section III.C. of this MOU.
Watershed Copermittee means any Copermittee that is identified both as a Copermittee under Table 1.a of the Permit and a Responsible Copermittee under any Watershed Management Area as defined in Table B-1 of the 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 Working Body.
Working Body means Committees, Subcommittees, and Sub-working body(s) such as Ad-Hoc
Subcommittees assembled to conduct specific tasks required by, for, or in furtherance of, compliance with
the Permit.
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 Programresponsibilities for a Working Body is entitled to reimbursement of contract management costs ata 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 anywork or contract, or incur any other cost on behalf of other Copermittees if each Copermittee hasnot contributed the funds that it is obliged to contribute toward the activity or program, or if theCopermittee has not received adequate assurances that such funds will be received beforepayments become due. The Copermittee shall have sole discretion to determine whetherassurances 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 by providing written notification of termination to the
Copermittees within the Working Body 90 days prior to the intended date of termination.
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. This formula applies
only to the geographic boundary of the Regional General Program or Watershed General
Program being considered.
(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 oractivity is applicable, the Port or Airport, respectively, will each pay a fixed0.5% of total Population costs. The remaining percentage of the populationcosts 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. Thesepercentages shall be calculated at least once every 5 years 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 totalUrbanized Land Area of all participating Copermittees within the geographicarea applicable to the shared program or activity. Urbanized Land Area sharesshall be calculated using the most recently available San Diego Association ofGovernments (SANDAG) land use statistics. The Urbanized Land Area sharefor the County shall include those urbanized lands in the unincorporated
portion of the County that are west of the 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 BodySupport.
2.Work Plans and Shared Cost Budgets
a.Limitations on Cost-sharing
General Program activities that are cost-shared by all Copermittees include collaborative
municipal stormwater and watershed 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 ofCopermittees as dischargers of municipal stormwater (e.g., 13267 Orders, Total
Maximum Daily Loads, etc.), or
(4) other watershed 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 andinformation clearinghouses;(7)Preparation of technical analyses, recommendations and comments regarding the
MS4 Permit, total maximum daily loads, and other relevant storm water quality
regulations;
(8)Preparation of documents required by the MS4 Permit, such as Reports of WasteDischarge; and
(9)Special studies related to storm water quality-related pollutants, their sources,
and potential best management practices.
b.Work Plans and Shared Cost Budgets
(1)No later than October 31st of each year, each Working Body shall prepare andsubmit to the Planning Subcommittee a proposed 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,
Cochair, 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 WorkingBody Chair, Co-chair, or Secretary, and may at any time terminate an existingassignment. 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 governing body has sufficient time to considerfiscal impacts, the Planning Subcommittee shall prepare a consolidated draftRegional Work Plan and Shared Costs Budget no later than December 31stof 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 31st 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 thatwill result in an overall increase in cost require the approval of the RegionalManagement Committee.
(7)Copermittees from each Working Body, for which costs will be shared, shall
prepare, agree upon and distribute to the participating Copermittees in that
watershed, a watershed work plan and Shared Costs Budget.
(8)Approval of the Shared Costs Budget for each fiscal year is subject to approval byCopermittee governing bodies as part of their regular annual budgeting process.
3.Cumulative Budget Limits
a.The total Shared Cost Budget authorized under this MOU may not exceed the cumulativelimits specified for each spending category in Table 1. These values represent themaximum 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 limits 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
FY 2024-25 FY 2025-26 FY 2026-27 FY 2027-28 FY 2028-29 Cumulative
Limit
Regional Budgets $1,082,501 $1,114,976 $1,148,425 $1,182,878 $1,218,364 $5,747,144
San Luis Rey, SLR $753,250 $1,740,123 $1,153,722 $843,838 $1,287,738 $5,778,671
Carlsbad, CAR $572,785 $1,129,049 $1,159,676 $1,052,999 $1,055,576 $4,970,085
San Dieguito, SDG $755,662 $564,235 $481,502 $428,530 $438,369 $2,668,298
Los Penasquitos,
LPQ $843,685 $674,499 $584,117 $617,617 $632,619 $3,352,537
San Diego River,
SDR $1,783,600 $2,795,208 $2,260,918 $1,839,693 $2,926,208 $11,605,627
San Diego Bay,
SDBay $952,200 $855,500 $910,800 $936,100 $836,050 $4,490,650
Tijuana, TJ $691,200 $626,400 $635,850 $681,750 $619,650 $3,254,850
Bacteria TMDL
(Cities of Carlsbad,
Del Mar, El Cajon,
Encinitas, Escondido,
La Mesa, Lemon
Grove, Oceanside,
Port of San Diego,
Poway, San Diego, San
Marcos, Santee, Solana
Beach, Vista and the
County of San Diego. $20,000 $20,000 $20,000 $20,000 $20,000 $100,000
Total Watershed
Management Area
(WMA) Budgets $6,372,382 $8,405,014 $7,206,585 $6,420,527 $7,816,210 $36,220,718
Total WMAs +
Regional Budgets $7,454,883 $9,519,990 $8,355,010 $7,603,405 $9,034,574 $41,967,862
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 and based on the
Default Formula. 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
and based on the Special Formula applicable to that watershed. Each Watershed General
Program operations fund shall be managed 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 accepted
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-kindservices, or incurring other budgeted costs on behalf of other Copermittees shall providedocumentation of those expenses as requested by the Copermittee managing theapplicable General Program operations fund. They shall only receive credit for thoseexpenses 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 eithercredited or added as appropriate to the amount of the Copermittees’ share. In the eventthat 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.
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 additional contributions or jeopardizing
program objectives. If for some reason excess payment is made, the Copermittee receiving the payment
agrees to return 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 implementation of
Regional General Programs, including the following tasks and responsibilities:
(1)Establish, chair, and provide overall coordination and leadership of the RegionalStormwater Management Committee (Management Committee) and the RegionalProgram 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 proposedstate and federal policies, regulations, and other NPDES programs; assist theCopermittees in the development and presentation of positions on these issues beforelocal, state, and federal agencies.
B.Regional Stormwater Management Committee
1.The purpose of the Regional Stormwater Management Committee (Management Committee) is todevelop, approve, and coordinate municipal stormwater and watershed management, and toexplore 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 watershedprograms, 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.Review specific issues pertaining to Working Bodies, make recommendations, or conduct
work in support of shared regional priorities or objectives;
f.Formally approve the recommendations, work products, and deliverables of WorkingBodies 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 alternatively 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
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 internet
protocol, etc.).
b.Management Committee voting shall not be conducted outside of meetings (e.g., byemail).
c.For a motion to be approved, an affirmative vote of a Simple Majority of the
Management Committee is needed.
d.On approval of the 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 Copermitteesparticipating in the cost.
C.Regional Program Planning Subcommittee
1.The purposes of the Planning Subcommittee shall be to provide regional coordination of urbanrunoff management activities, to develop and implement Regional General Programs, and tocoordinate 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 Body(s);
b.Plan and coordinate Management Committee meetings;c.Review specific issues pertaining to Regional Working Body(s), make recommendations,or conduct work in support of shared regional priorities or objectives;
d.Oversee, coordinate, and track the progress of As-Needed Regional Working Body(s) 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 Working Body(s) for consideration and
approval;h.Annually receive, review, comment on, and consolidate the recommended Work Plansand Shared Costs Budgets of each Regional Working Body(s);
i.Coordinate and liaise with Regional Board staff, stakeholders, regulated parties, and otherinterested parties to identify and explore key regional issues and concerns.
j.Provide Representation to the California Stormwater Quality Association (CASQA);
k.Provide representation or participation for other professional organizations and societies
as appropriate and feasible;
l.Provide regular updates to Copermittees and interested parties via ManagementCommittee 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 B-1 except the South Orange County WMA. Any Copermittee may only
represent one WMA as a voting member of the Planning Subcommittee. For each fiscal year,
each WMA will designate a Copermittee as a voting member of the Planning Subcommittee prior
to the beginning of that fiscal year. Each WMA may also designate an alternate voting member.
5.Each voting member shall be considered an at-large member. Their purpose is to represent theinterests 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 itemsrequiring 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 asapplicable.
IV.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 thebreach thereof, and if the dispute cannot be settled through the meet and confer process asdescribed above, the Parties agree to attempt to settle the dispute in an amicable manner, usingmediation under the Mediation Rules of the American Arbitration Association [AAA] or anyother neutral organization agreed to by the parties. A mediation session is required before havingrecourse in a court of law. The cost of mediation shall be borne by the parties equally.
2.Selection of Mediator. A single Mediator that is acceptable to all Parties shall be used to mediatethe 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 manner 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 attorney(s) or expert(s) present.
b.Any agreements resulting from mediation shall be documented in writing. All mediationresults and documentation, by themselves, shall be “non-binding” and inadmissible forany 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.
V.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 be effective through August 2029, 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 2024 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 limited 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 V.B.1.a. has been met.
d.Any monies paid by withdrawing Copermittee in excess of the amount due under theterms of the MOU shall be refunded to the Copermittee at the time the withdrawalbecomes final as set forth in Section V.B.1.a.
e.The withdrawing Copermittee shall not be entitled to participate in the division ofproceeds 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 bythis MOU, no Party may be found in breach of this MOU where compliance would require thatParty to violate any law or grant assurance, including but not limited to provisions of the FederalAviation Administration 1999 Policy and Procedure Concerning the Use of Airport Revenue[64Fed. Reg. 7696, dated Feb. 16, 1999]; the Airport and Airway Improvement Act of 1982codified 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 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 of the 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 vote of approval of all 21 Copermittees at a meeting of
the Regional Management Committee. 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 governed and construed in accordance with the laws of the State of California. 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.
F.Headings
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.
G.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.
H.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 of the 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 legalcounsel and bear its own defense costs.
I.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.
J.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.
K.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, 2024, 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.
Except as hereinabove amended, the Fifth Amended National Pollutant Discharge Elimination System, San Diego Regional Storm water Coperrnittees, Memorandum of Understanding shall remain in full force and effect. In the event of a conflict between the provision of the MOU and those of this Amendment, this Amendment shall control.
IN WITNESS WHEREOF, this Fifth Amended MOU is executed as follows:
Date:_____::;.._U>_/di.c..__:8/�1 d:::......:..,,0,::_;:_(y__;__/_
Approved as to form.
& /�"1 /n;,;i. tf Date: ___________ _
Keith Blackburn, Mayor City of Carlsbad
Cindie McMahon, City Attorney City of Carlsbad