HomeMy WebLinkAbout2007/05/15 Item 10
CITY COUNCIL
AGENDA STATEMENT
Meeting Date: 5/15/2007 Item...l2..-
SUBMITTED BY:
REVIEWED BY:
RESOLUTION AMENDING THE FY07 BUDGET BY
APPROPRIATING $620,000 FROM THE AVAILABLE BALANCE OF
THE PUBLIC FACILITY DEVELOPMENT IMPACT FEE (PFDIF)
FUND BALANCE AND AWARDING A PURCHASE AGREEMENT IN
THE AMOUNT OF $620,000 FOR TWO DRAIN CLEANING TRUCKS
TO mON INTERNATIONAL TRUCKS IN ACCORDANCE WITH THE
TERMS AND CONDITIONS OF CITY OF SAN DIEGO BID 6971-05-Z
AND PRICING AGREEMENT 8070191-0 . /J~
DIRECTOR OF PUBLIC WO~PERATlON~
INTERIM CITY MANAGER ;J
ITEM TITLE:
4/5THS VOTE: YES X NO
BACKGROUND
On January 24,2007, the San Diego Regional Water Quality Control Board adopted the new National
Pollutant Discharge Elimination System (NPDES) Municipal Storm Water Permit, Order No. R9-
2007-0001 (New Permit). The New Permit includes many new and expanded tasks at jurisdictional,
watershed, and regional levels compared to the previous NPDES Municipal Permit (Order No. 2001-
01). In order to meet the New Permit's compliance deadlines, it is necessary to order two vacuum-type
storm drain cleaning trucks for delivery in Spring 2008 due to an approximate lead time of one year
between placement of an order for the trucks and their delivery.
Compliance with the New Permit will also require additional staff, equipment, and other resources that
are being addressed through the FY2007-08 and subsequent years' budget process (see Attachment 2).
ENVIRONMENTAL REVIEW
NPDES Permit implementation does not require environmental review.
RECOMMENDATION
That Council adopt the Resolution amending the FY07 Budget by appropriating $620,000 from the
available balance of the Public Facility Development Impact Fee (PFDIF) Fund balance and
awarding a Purchase Agreement in the amount of $620,000 for two drain cleaning trucks to Dion
International Trucks in accordance with the terms and conditions of City of San Diego Bid 6971-05-
Z and Pricing Agreement 8070191-0 (see Attachment 1).
BOARDS/COMMISSION RECOMMENDATION
N/A
10-1
Meeting Date: 5/15/2007, Item 10
Page 2 of3
DISCUSSION
The Regional Water Quality Control Board (Regional Board) has determined that additional efforts
above and beyond the existing storm water programs currently undertaken by the San Diego County
Copermittees are needed to prevent the degradation of water quality within receiving waters of San
Diego County and to comply with federal and state storm water discharge regulations. Consequently,
the New Permit issued by the Regional Board on January 24, 2007 includes new, expanded, and more
stringent program requirements compared to the previous permit, Order No. 2001-01.
On December 13,2006 and January 11, 2007, staff sent Informational Memorandums (Attachments 3
and 4, respectively) to the City Council regarding the pending adoption of the New Permit and staff's
concerns regarding the permit's requirements and associated costs, impact on the General Fund, and
unfunded State mandates. The December 13, 2006 memorandum estimated the City's additional cost
of implementing the New Permit for its five-year term from January 2007 to January 2011 at $8.4
million in cost impacts to the General Fund. Since that time, staff has refined this cost estimate to an
additional cost of $6.5 million over five years, with $860,000 of this amount utilizing Public Facilities
Development Impact Fee (PFDIF) funds for the purchase of storm drain maintenance equipment,
thereby resulting in a net irnpact of $5.6 million to the General Fund over the permit's term. A brief
summary of additional costs by anticipated funding source through FY 2011-12 is presented below:
ADDITIONAL NPDES PROGRAM COSTS BY FUNDING SOURCE
Fundin!! Source FY2006-07 FY2007-08 FY2008-09 FY2009-10 FY2010-Il FY20Il-I2
General Fund 0 $ 609,000 $1,207,300 $1,265,200 $1,279,000 $1,298,500
PFDIF Fund $620,000 $ 239,500 0 0 0 0
Annual Cost $620,000 $848,500* $1,207,300 $1,265,200 $1,279,000 $1,298,500
* Included in Proposed FY 2007-08 Budget
Storm Drain Cleaninl! Trucks
The New Permit requires Copermittees to implement a schedule of inspection and maintenance
activities for their municipal storm drainage systems. For storm drainage facilities with high volumes
of trash and debris, inspections and removal of accumulated trash and debris are to be conducted each
year between May 1 st and September 30th. Inspections and cleaning of the remaining facilities are to be
conducted each year between October 1 st and April 30th. As-needed maintenance and cleaning is to be
conducted throughout the year - i.e., some facilities will need to be cleaned more than once each year.
Currently, three vacuum trucks, each with a crew of two Maintenance Workers, clean the City's storm
drainage systems and respond to accidental sewage spills and to decontaminate the area of sewage
contact. On average, each crew can clean 5 inlets per day. During Fiscal Year 2005-2006, City crews
cleaned 3700 inlets out of over 5400 existing inlets. During that same timeframe, City crews also
responded to 25 various types of pollutant discharges (i.e., paint, cement slurry, sewage, etc.) into the
storm drain system - approximately 10% of these discharges involved discharges from the City's
sewerage system, with all other discharges being from private sources. In view of the fact that the
number of inlets and structural storm water treatment systems are increasing due to new development,
as well as the seasonal restrictions on maintenance and cleaning activities included in the New Permit,
10-2
Meeting Date: 5/15/2007, !tern 10
Page 3 of3
staff has determined that two additional vacuum trucks and crews are needed to meet the New Permit's
required maintenance schedules.
The lead-time for ordering vacuum trucks is about one year. The trucks and crews will be needed in
the beginning of the Fourth Quarter of Fiscal Year 2007-08 (Apri12008). Costs associated with crews
to operate the above vacuum trucks and their maintenance will be included in Fiscal Year 2007-08
budget.
Other Al!encies' Response to the New Permit
Staff from other Copermittee agencies have indicated that, in order to comply with the New Permit's
new and expanded requirements, they are also in the process of increasing resources in their storm
water management and storm drainage maintenance programs by hiring additional staff, purchasing
equipment, and/or contracting with consultants or storm drainage maintenance contractors.
DECISION MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is not site
specific and consequently the 500 foot rule found in California Code of Regulations section
18704.2(a)(1) is not applicable to this decision.
FISCAL IMPACT
The initial purchase of the two storm drain cleaning trucks will have no impact on the General Fund
because they will be purchased using Public Facility Developrnent Impact Fees (PFDIF) in Fiscal
Year 2006-07. However, maintenance and replacement costs will impact the General Fund at a cost
of about $100,000 per year starting in Fiscal Year 2008-09. New program costs for FY 2007-08
associated with the New Permit, and shown in Attachment 2, have been included in the proposed
FY 2007-08 budget.
Staff believes the New Permit includes requirements that exceed the Federal Clean Water Act
regulations, but are within the authority of the State Water Code (Porter-Cologne Water Quality
Act). In conjunction with a majority of the other Co-Permittees (the County of San Diego and all
eighteen cities of San Diego County, but not the San Diego Unified Port District and the San Diego
Airport Authority), a claim for reimbursement of State-mandated program costs is being pursued
with the State Commission on Mandates, but the Co-Permittees must cornply with all permit
conditions while the commission considers the claim.
ATTACHMENTS
Attachment 1 - City of San Diego Pricing Agreement, PA No. 8070191-0
Attachment 2 - Additional NPDES Funding Needs, FY 2006-07 and FY 2007-08
Attachment 3 - Informational Memorandum, dated December 13, 2006, Regarding Pending
Adoption of New Five-Year NPDES Permit
Attachment 4 - Informational Memorandum, dated January 11, 2007, Regarding Pending Adoption
of New Five-Year NPDES Permit (Update)
Prepared by: Khosro Aminpour, Senior Civil Engineer, Department of Public Works Operations
Shared on 'Citywide 2000' (K:)\Public Works Operations\Agenda Statements FY07\NPDES Additional Staff and Equipment 5-09-07.doc
10-3
!trr7rC-/l!1V{ r 1
City of San Diego
PRICING AGREEMENT
Bid No.: 6971-05-Z
Ship To: Center 10: 057PURCH Bill To: Center ID: 057PURCH Date: 07/25/06 Page: 1 of 2
PURCHASING PURCHASING Time: 12:49:39PM
SEE ACTUAL POs FOR SPECIFIC SEE ACTUAL POS FOR SPECIFIC Bill-TO AND OPIS No.: PA05-8070191-0
Bill-TO AND SHIP-TO ADDRESSES SHIP-TO ADDRESSES
SAN DIEGO, CA SAN DIEGO, CA Commodity Code: 4212
Last Option End Date: 08/07/10
Vendor: Terms; Net 30
DION INTERNATIONAL TRUCKS, LLC DBA FOB:
Destination
DION INTERNATIONAL TRUCKS Tax Codr:,...,T r/
5255 FEDERAL BLVD
SAN DIEGO, CA 92105-5710 Buyef\\\~J;~hy Asbill-Gumbs
USA Phone: (619) 236-5923
Fax: (619) 533-~225
Vendor ID: 01100126995 Phone: (619) 263-2251 Fax: (619) 263-9021 E-Mail: B~biJlGumbs@sandiego_gQv
Line # Item IDfDescription QuantitylUIM Unit Price Extended Price
This Document is for Contractuaf Information Onfy and is NOT a Purchase Order
Purchase Orders Will be Issued as Needed
1 TRUCK, DRAIN CLEAN 5.00 EA $ 263.105.0000 $ 1,315.525.00
Drain cleaning truck
Mfr. : International/Vactor
Delivery Time; 270-300 days ARO
Warranty Period: 12 months
* Water Tank warranty period: 10 years
Additional cost per unit to provide and install an exhaust
particulate trap: $10,000_00 only if approved by CARE and if it is
available.
2 PUMP, TRASH 5.00 EA 10.953.0000 54.7651)0
Addi tional cost to provide and install a compatible
hydraulic pump off system/debris tank trash pump on the drain
cleaning tru ck listed in item 1.
Mfr. . International/Vactor
Deli very time: 270-300 days ARO.
Warranty period: 12 months
3 COATING, TANK 5.00 EA 3,8060000 19.030.00
Addi tional cost to provide and install a compatible debris
tank coating on the drain cleaning truck listed in item 1.
Mfr. : Poly Bird
Delivery time; 270-300 days ARO
Warranty period: one year
4 TANK, 5-YD DEBRIS 5.00 EA 0.0001 0.00
Price deduct from unit price of item 1 to provide and
install a 5-yard debris tank with 1,000 gallon fresh water system in
lieu of a IO-yard debris tank with a 1,500 gallon fresh water system,
compatible with item 1.
Mfr. : International/Vactor
Deli very time: 270 to 300 days ARO
Warranty period: 12 months
Deduct: ($-16,231. 00)
Notes:
Have questions about doing business with the City of San Diego? Visit our Purchasing web site at
www.sandieoo.Qov/purchasinq and get all the answers SEE LAST PAGE
For specific Information regarding contract opportunities with the City of San Diego, please visit our FOR TOTALS
Bid & Con(raci Opportunities web site at wwvisandieao.Qov/bids-colltfhetA
~ . . - -
PA No.1
8070191-0
PA 2555A IRFV Q.07\
City of San Diego
PRICING AGREEMENT
Bid No.: 6971-05-Z
PA No.1
8070191-0
Ship To: Center 10: 057PURCH
PURCHASING
SEE ACTUAL pas FOR SPECIFIC
Bill-TO ANa SHIP-TO ADORESSES
SAN DIEGO. CA
Bill To:
Center ID: 057PURCH
Date: 07/25/06 Page: 2 of 2
Time: 1249:39PM
OPIS No.: PA05-B070191-0
PURCHASING
SEE ACTUAL POS FOR SPECIFIC Bill-TO AND
SHIP-TO ADDRESSES
SAN DIEGO, CA
Commodity Code: 4212
Last Option End Date: 08/07110
DION INTERNATIONAL TRUCKS, LLC DBA
DION INTERNATIONAL TRUCKS
5255 FEDERAL BLVD
SAN DIEGO, CA 92105-5710
Terms: Net 30
FOB:
Destination
Tax Code: T
Vendor:
Vendor 10: 011 00126995
Phone: (619) 263-2251
Fax: (619) 263-9021
Buyer: Beverly Asbill-Gumbs
Phone: (619) 236-5923
Fax: (619) 533-32,25
E-Mail: BAsbiI1Gumbs@sandiego.gov
USA
r
Notes (cant):
Furnish the City of San Diego with Drain Cleaning Trucks.
Exercising Option #1 to Renew for an Additional One (1) Year Period
beginning 08(08/06 through 08/07/07. A 5.08% or $12,730.00 price
increase has been granted for Item I.
Council Resolution No.: 300756
Options Remaining:
08/08/07 - 08/07/08; Increase not to exceed 20%.
08/08/08 - 08/07/09; Increase not to exceed 20%.
08/08/09 - 08/07/10; Increase not to exceed 20%.
Vendor Contact: William M. Tollefson, Fleet Sales Manager
E-mail: btollefson@diontrucks.com
Insurance and bond shall be updated as required.
Distribution: File, Vendor, Buyer, OPIS, Kelleher, Kristina Blake
MS 7B, Mark Caroccia MS 42, Robert York M5 902
For specific information regarding contract opportunities with the ~lnQ[~a.n Diego, please visit our
Bid & Contract Opportunities web site at www.sandleqo.qov/blds-con1ra~s
Line Item Total $
Tax
Freight
PA Total: S
1,389,320.00
107,672.31
0.00
Have questions about doing business with the CIty of San Diego? Visit our Purchasing web site at
www.sandieqo.Qov/purchasino and get all the answers.
1,496,992.31
THE CITY OF SAN DIEGO
July 26,2006
Mr. William M. Tollefson, Fleet Sales Manager
Dion International Trucks, LLC DBA
5255 Federal Boulevard
San Diego, CA 92105-5710
Dear Mr. Tollefson:
Subject: Bid No. 6971-05-Z - Drain Cleaning Truck
The City of San Diego is exercising the option to renew the subject contract for an additional
one (I) year period beginning August 8, 2006 through August 7, 2007 subject to receipt of valid
insurance certificates and bonds. as noted below, by the contract start date. A $12,73000 price
increase, which represents a 5.08% increase, has been granted for this option period..
Insurance Requirements: Your present agreement with the City of San Diego requires you to
have valid insurance for the entire contract period. Therefore, it is imperative your insurance
carrier provide us with renewal certificates and bonds at least ten (10) calendar days prior to [he
expiration date in order to ensure cOlllinuation of this contract.
Our records reflect the following insurance coverage on file and expiration dates.
I COMMERCIAL GENERAL LIABILITY and PROPERTY DAMAGE for $1,000,000.00;
expires August 1, 2007.
2. WORKERS' COMPENSA nON on t,ie; expires August I, 2G07.
Bond Requirement
WARRANTY BOND in an alllount to be determined.
The contract for this option period will not be effective and purchase orders cannot be issued
until updated insurance certitlcates and bonds have been received for insurance and bonds which
has expired or will expire prior 10 the begilming of the new contracr period August 8, 2006
through August 7, 2007, Renewal insurance certificates and bonds, as noted above, must
be reccived by the Insurance Coordinator, City of San Diego Purchasing Division, 1200
Third Avenue, Suite 200, San Diego, CA 92101-4195, no later than ren (10) calendar days
prior to the expiration date.
.~~A...~ c.
','. ~-
if .;
[1I'1[~jll ,
Purchal~g lPivision
1200 Ihlfd Avenue. luile 200. Ion Diego. CA 92101-4195
Page 2
Bid No. 6971-05-Z
Mr. William M. Tollefson
July 26, 2006
Purchase order(s) will be prepared as required It is understood that original conditions of
contract will prevail.
For questions regarding insurance and bond requirements, please contact the Insurance
Coordinator at VSummers@sandiego.gov, or at (619) 236-6254. However, concerns regarding
this contract should be directed to me at MWinterberg@sandiegogov, or at (619) 533-644].
Thank you for your continued interest in doing business with the City of San Diego.
Sincerely,
U#6hv) tI~~~
Michael Winterberg
Procurement Specialist
MW /mn
Enclosures
10-7
ATTACHMENT 2
Additional NPDES Funding Needs, FY 2006-07 and FY 2007-08
UPo,o,Tal:(I.CI2512OO1
PERMIT ADOPTION DATE: 011Z4i01
~~'"
"""''''
FYlINllIQl
FYD7-llBQ2
FY07.oaQ3
FY01.oaQ4
1. PROGRAM IMPLEMENTATION STAFF
TITLE TASK
2.PR
MDEV
PM N -
RKIT
Aull1mi~SIllffPoai~on
Stafl Salaries Inclucle Ollioe & Equipmenl PuTchase and ReplacementCllslS ..AnnualSal8riBSlncIude5%Esc;lla~cnF8d1:1r
En.;ronmental Health SUSMP Update & WURMP
Sped_ Managemr>et
Au~SIatrPOSlllon
Recruitment
$82000
Racrultmant
BjEngin-mgTed1nician Data Tmcklng
C) SeniorStormwater
Cllmpjian<:elna;>eclOf
IlI5JlectklJ1
OJ AssoclalePlamer
Devfllopment Planning &
SUSMP I emenhl~on
Devook>pmantPlannlng&
SUSMPlm ementaticn
TOTAL IMPLEMENTATION STAFF
E) AssDCialflE'ngir.eer
JURMP Updale-Nc A<ldillonal Funding Required
Informal Bid
B) Hydromodiricaticn Pian (RoIgicna~
TOTAL WORK ITEMS $0
3 - Operations & Malnten8nce (Equipment PUrcheS8S & Staff)
..
) Pub,cWort<aSpecis,st
AulhurizeStarfPc.iUcn
B)PubIicWcrksSupanrio...
AuthcrizeSlalfPcsitian
C) Main\enanCflWorkerll(5)
D) SenlorMalntenangoWor1<olr(3)
_1_1_1_'_'________
E) (2)C<lmbjnationVeNdell
$620 oo~ ~
Recruilmenl(3)
-~-~-~-~ ~---~-,-,~,---~-~-
PLACE ORDER FOR (2) COMBINATION VEHICLES
) (1) Ren181Equ;pment
PLACE ORDER FOR (21 Pk:I<-UpTTUCkS 2Docr
F) (2) PlckUp Trucks_2DOQr
G) (1) lll_Yard DumpTruck
PLACE ORDER FOR (1) DUMP TRUCK
H(1)ConsrtucliooVehicle
PLACE ORDER FOR (1) Cons1l1Jdioo Ve!llcJe
~ (1) Ctew Cab Pick Up
PLACE ORDER FOR (1) Crew Cab Pick-Up
PLACE OROER FOR Renllll Equ'pmenl
K){7)Vehicle&EquipmentRadiDs
L)(6)L8p1ops,Oesklop.&Soltware
S2a,aOOISto,aOO
M) AnnuelEquipmenlM8in\enance& ReplacmenlCnalll
TOTAL OPERATIONS & MAlNTENAHCE
4 - Monitoring
l WetWeetl>erMnnilnrinll
B) AmbNlniBav&l..agD<m Moniklnng (ABLM)
CjSourl:8ldenbfiClltlon
H20,000
'"
:$55000
$3&1'-
533,2110
$33,2110
$1"',000
N) MlscellanenusC03llI
D) DryWeBl.h8r
$45,llOD.
516000
516000
$B,OOO
- - -
TOTAL MONITORING $0 I
5 - awrsh9d Urban Runoff Management Prognlm (WURMP) Activities
) Wll\ef'ShedWaterQlWityAcliIlttiBs[2Annuelly)
B) Watersr.edEdllCll~nnAd/llilje9(2AnrnlaIIy)
TOTAL WURMP ACTIVITIES
..
..,...
..
S24,Ooa
"
$2.S,00~
$10000
QUARTERLY TOTALS
.. .. "'... .. .. ..
$820,000 SO $532,000 $33,250 $79,250 $204,000
SO $0 $292,500 $33,250 $79.250 $204.000
$620,000 $0 $239,500 $0 $0 $0
$620,000 $848,500
GENERAL FUND -
~ PF OIF
ADJUSTED FISCAL YEAR TOTAL
1.D and 1-E: Associate Planner and Associate Engineer responsibilities under the new Permit
will be absorbed by existing staff in the Planning and Engineering Departments respectively,
2-A: No Additional Funds will be needed to perform JURMP Update due 10 FY 2006-07 Cosl Savings
10-8
AmCffr1t;Jr 3
Informatlona[ :Jv1emorantfum
-
December 13, 200()
File Nu KY-[XI
TO:
The [-lullur<lhlc Mayor <lm[ City CounCIl
VIA:
.lllll Thomson, Inlerim City MnllLlgel
- j,
D<lve Byers, Directur "fPublic Works opcrationst-fJ
['ending Adoption of New Five-Year National Pollutant Discharge Elimination
System (NPDES) Municipal StOnllwatcr PCnllit by the San Diego Regional
Water Quality Control Board (Regional Board)
FROM:
SUBJECT:
At its scheduled meeting (]fDeccmbL:f 13,2006, the Regional Board had planned to consider the
aduption of ':1 new tivc-ycHr permit regulating the discharge of urban-generated polluted runoff
within San Diego County to receiving waters via dry weather and wet weather flows through the
municipal storm \,valer conveyance system (i.e" streets, gutters, pipes, and open channels).
However, the meeting \\1[\.'-1 cUllceleu due to luck of a quorum. The pemlit will now be considered
at either the Regional Board meeting scheduled for February 14,2007 or at a special Regional
Board meeting to be scheduled in hll1uary 2007. The proposed permit would be the third pcnnit
issued by the ReglOllal B08nl since 1090 to the City of Chula Vista, the seventeen other cities
within Son Diego County, the County of San Diego, the San Diego Unitied POl1 District. and the
San Diego Airport Authority (Co-rcnnittccs).
\Vith the adoption uf each permit, rcgu]8lory requirements have become increasingly complex
and demunding, as \.vell <J,e; more and more costly for public agencies and private entities (i.e.,
hw:;inesses, developers, etc.), to implement. The City's cost of implementing the existing permit
In FY 20(J(J-07 is approximately $1.5 million pcr ycar. Staff estimatcs that the cost to implemcnt
thc proposed pcrmit will increase total program costs to $3.9 million in FY 2007-08 (including
the one-time purchase of equipment totaling $900,000) and $3.0 million per year in the second
through fifth years lJt' the proposed permit. These estimated costs do not include cost impacts to
developers and businesses. A signillcant portIon of these new costs to the City, as well some
existing costs, are unfunded State mandates and arc eligible for reimbursement under State
Cnnstitutiomil provisions, ,11though the Regil)!l~d Board !l;:Js not yet acknowledged this.
Finally, L.1s1 llllllute- reVlSIOIlS to the pcnl1lt with regard to implementatiull of "Lo\\ Impact
Dcvclopml'lltU ("'LID") prillcipk:.; f(-l[- I1C\-\' dcvelopment ~lnd redevelopment projects, as well as
storm drtlil1clge systl'1ll pn1Jel'ls, 11,1\'C heen Illadl' (It the rcquc0l of environmental advocacy
gl'ULlPS The RCglOllid Board ICIClscd these revisions 011 December 4, 2006 without the
opportunity for full puhlll' revlt'\\' and CI1\1l111l.'1l1 H,l\Vl'Ver, a full sixty-day puhlic reviel,.v nne!
COlllll1ent pCrlDd \\'as jJH.l\'ldcd for the !\ugl1st 3CJ, 2U(l(l revised PCllllit, which \ViIS the tirst
reV'ISIClll.
10-9
lhl: [[llllUrt\hk i\iLlynr S: ell)-; (-(;ullcd
]J(igl' - 1.
Ikl.'l'I,d~l'! I;. ~()( 1(,
The purpose Dr (his 111Gl1lur,IJldul1l I:: 10 \llf(_IITll Cll)' ('uullul pj' the pClldlllg ildt\ptlllil Ii! the lIe\\'
rive-yew!" NPDES MUl1iclp~d P""mil and pn1vidc hackgroulld (ill the prugr;1111 Whcl1 lhe public
hearIng uccurs, elected Oftlclills from Vdrlll!!,'; cities 111 the rt:glOl1 will speak ~Illht' puhllc I1L';lI"Illg
In an organized presentation 1)~rlicqJCltll11l III tile publIc hC~lr1ng hy till' i\/Llyor or a
COllllcilmembcr would be welcoll1cd and st<1tf will advise the MJynr ,11](1 ('Ity CnullCtI of the
new public hearil1gdatc when it is kl1O\vll. Meelings ,Ire held III the BU<Hd ROLllll of the RCgll\lWl
Water Quality Conlml Board loealed allJl74 Sky Park Coorl, Sorte 11111. San Diego CnliCurIllil
LJ2l23. BZlSic points suggested t(Jr publiC lestlmony 1l1cludc
. Thank the Regiol181 Board and staff for the lllallY tcchnic;t1 chJllgc~ lll,-Ilk 111 rc~p()llse to
Co-Permittee comments.
. State that keeping the environmenl clean is a top priOrity and thai the City of Chula Vista
has a strong history of, and unquestionable reputation for, environmental stewardship and
leadership"
. State that San Diego County's economy and local revenues are down due to a slowdown
in construction and real estate, and that local agencies (Ire having trouble paying for basic
services, as well as maintaining aging infrastructures.
. Indicate that the proposed penllit would more tll/)n double the City's existing compliance
costs and Proposition 218 restrictions do not allow !oc<ll agencies to raise most taxes or
fees without super-majority (t\vo-thirds) <lpPIllVid of the general dectorate or simple
mojority approval of property o\vncrs. A !lumber of agencies, ll1(lst recently the City or
Encinitas, have attempted to gain voter approval to raise or increase fees for NPDES
Municipal Permit compliance activities, but hZlve failed; III our regioll, only the CIty of
SEln Clemente has been able to gain voter <Irprova! tor a lIve-year fee Illcrca::-:c, largely
clue to San Clemente's economic reliance Oil its beache::; and coa::;lal resources As a
result, General Fund revenues, which are traditionally llsed to fund pollee anel tire
services, libraries, recreation, and other hasic public servicc~, will need to be tapped to
pay for increased NPDES Municipal Stormwatcr program costs, thereby leading to
reductions in basic public service levels.
. Indicate that the question ofunfuncled Statc mandates contained \.vith the propo::;cd permit
remains unaddressed and requcsrthat the Regional Board consider Ihis issue morc closely
before adopting the ncw permit. Further, undcr State Constitutional provisions. the State
Legislature must reimburse local agencies for the implementation of unfunded State
mandates; otherwise, unfunded State mandates must bc suspended if the State Legislature
docs not make reimbursement.
. Encourage the Regional Board to not adopt thc permit at this time ill order to take lllore
time 10 consider Ihe verbal commcnts offered during the public he;Jrlllg and the extensive
written legal comments on unfunded Statl: 1l),:l!ldatcs, aile! to provide appropriate time for
full public review of recent changes to thc proposed permit reli.ltcd t{l Lmv 11l1p~ICl
Developmenl.
Hlsturical Baek~munduClhc NPDES tvlUl1ielp,i1 Stonn\Valer Pen1ll1
Unlll I lJ87. the I'"ederal Willer <)U'IIIIy Conlml Act (Cle<l11 Willel .'\el) 01" I lJ72 rcgul'llecl pUI111
sources of \vater pollution, sllch as industrial discharges ami dl~ch;lrgc.s ti-{\lll Publicly Owned
10-10
The J !ZIIHJI":lhk: ~.JL1V\l!- & ('IlY f. IlLll1LlI
, :I.l..!.\.
I JcTl'llilWI 1-; 'I!li(,
W~!~tC\.vdlel- Trc;:dl1lt'1I1 Wur-lc; (POT\V,,). The C;llIlul Sidles EnvlrUllIl1Cnl;-tll.lrll!L'dlllll /-\gL'11L'~: IS
responsible ror the implcmt:ntatlull or llll' Fcdcr;d Ckiln \Valcr Act
In I ()~7, the Clean \Vdttr Act was ~lIllclllkd 10 csLlhlish Cl permitting pn1cess ;Illd rcgulallolls h.)1
non-point sources of water pollution (l.C" sources of pO])UllUll III \VhlCh ~J spec1Jic and di.';uete
origin, sllch as (1 pipe outfnll ti'Ufll ~! POT\\!, Cllllltll he Idcntlticd), :"uch <l"i urh,lll stnrlll\Vatel
runoff ~llld discharges It'om spccitic industry: types ~lIld COllstructic\ll siltS This permuting
process IS implemented through the National Pnllut,lllt Di~charge Elilllillil[HlIl SystClll [NPDES)
Permit Program.
In CalifcJrllla. tbc Porter-Cologne Water Qualily Control Act (CllitcJ1"I1la Water Code) \Ye,I'.
established to further augment. and to set regulations above and beyond, the Feder,-ll Clean \Vi.lter
Act.
In California, the United States Environmental Protcetion Agency has delegatcd authority for
implementation and enforcement of the NPDES program to the State of Calitlnl1la throogh the
State Water Resources Control Board and its nine Regional \Vater Quslity Control BmlrcLs.
These regulating agencies issue NPDES permits and ensure compliance by permittees, including
municipalities. NPDES pemlits C81l be general (statewide), regional (countyv\ricle), or Indivldual.
The NPDES pennits for industrial f:1cilities and construction projcct~ lire statewide, \vhile
municipal permits arc issued at the regional level. Individual permits arc also issued. such as the
Caltrans NPDES permit.
The San Diego Regional Board issued the first NPDES Municipal Permit I'll the San Dlege)
County Region in 1990 (Order No, 90-42). The Municipal Permit covered all San Diego COllnty
jurisdictions, includl11g the County of San Diego, the San Diego Unified Port Distnct and
eighteen municipalities in San Diego County. The Municipal Pcnnit was to be re-Issued e\'ery
five ye8rs, but this did not happen until 1998 when Tentative Order Nu. 'N-OI replaced the older
pellllit. The next fe-issuance of the MunicIpal Permit was Oil February 21, 200 I (Order No.
2001-01). The San Diego Airport Authority was "dded to the list ofCo-Pell1littees covered by
this regional pemlit. CUITcntly, the City of Chula Vista is regulated uneler NPDES Ordcr Nu.
2001-01.
Pronoscd Peru]it !Tentative Order No. R9-2006-0(11)
The proposed pel111it has been released tiJr public review alld C01llment t\vice since Marcil 10,
2006. The Regional Board has received oral and \vrilten COlllJllCnts on the Tentative Order and
has made amendments to the contents ufthe Tentative Order as a result ofthnsc cUlllmenls.
Throughout the public revlc\v process, the San Diego COUllt~/ ivlulliclJ);'ll PCrIll1t C\l-Pemlltlccs
coopcr~lted at three differenllevels (City MWlagers, Attorneys, and tcclll11cal st~lff) tD disclIss ~\J)cl
submit rcgiol1al coml11ents 011 the Tentative Order. In addition, Jl)(ltvidual Cn-PerJl1iltl'c~.
mcluding the City of Chuh Vista, submitted their U\NIl specific CL'l1111Itl11s during both public
hearings.
10-11
I Ill' 1-1(lllilr~lhk :\.LI",'('I ,:,' ('It\' ( Illllllll
.1
DClTlllhn ]1, 2i)(Hl
('()111P,'IICt! 1(1 (ht.' '-.'\IS1Jllg r\:'1Ullll'lp,d Pcrl1lH rl:11LI!IVC Order No. 1\i)-2()()()-(){JII Includes
c\ptllHkd :lilt! 11111lt' prescriptive rcqulrClllL:Il!\ IJlcludlng dral1lilgc system lllainlen,llllT
llTC]llcnclt'-. ~lIld :;C(ISUI1~i1 111ll1[,llllllJ.'i, clddlllOllill welter qLl~dlty l1luniloring. addltiol1Jl in.spediolls
(If Illdll.sll'l,d, C()llllllCrclal, ilnd Clll1strllctiull clcllVltlCS ~lIld !i"lcdillCS, udditlllmd reql1ll"emcnts for
ne\\' development ,l1ld redevelopment {inclwl1llg ~1 "Hydrll-Mnclllicatioll PI,lI1" requirement for
new development}, watershed aclivitie:\, ..me! delta tlllckinglrcporting requIrements
The RCglllll<l1 Board responded hlvnrably tu mo.';! ()fthc tcchniL',-d comments provided by the ('0-
Pernllttces and amended the Tentative Order tu l,mwick sOl11e of the ncxibility needed tn develop
practical ~lS well as effective programs However, cOlllments on specific legal isslles were not
sati~f~1Ctorily ,-\c1dre~sed. Lcgul issues arc mainly focl1~ed onlhe prohibitive cost of the programs
and the fact that many of the requiremcnts are slate unfunded mandates that arc ahove and
beyond the Federal Clean Water Act requirements and. therell)re, Co-Permittees must be
rein)burscd for their costs to implement them under State Constitutional provisions, The
Regional Board has argued that there are no state unfunded mandates in the Tentative Order and
has rejected the argument.
Prourmn Costs 3Jld Fundin1!.
The City of Chula Vista.s total NPDES pmgram expcmlrtures for Fiscal Year 2005-2006 were
approxil1ltltely $1.4 million (ex.cludlng Capitallmpro\'cmcnt Project for draill<Jge improvements).
Costs tl)r Fiscal )'car 2006-2007 \vill be close to $1.5 milJiofL The new permit requirements are
expected tl' add another $2.4 mrllloll III the lirst year (2007-2008 FYI and about $1.5 million
annually III the tillkJ\ving four years to the present costs The first ye,lr expenditures include
start-up costs associated with the purchase ofne\\' equipment.
Chula Vista Municlpal Cude Ch~lptcr 14.16 established a StOllll Draill Fcc to provide n funding
source for the Implementation of the NPDES Permit requirements, Since 1991, the Storm Drain
Fee has been kept at the SHme rate of $0.70 per month per single family home and $ 0.06 per
Hundred Cubic Feet (HeF) of water consumed for multifamily and coml11ercialland uses to the
current date. This fee generates approximately $500,000 per year in revenue, The balance of
progrLlms costs are covered through a variety of development-related fees, maintenance district
fces, and the Gelleral Fund; increases in prugram cnsts lIncler the proposed pennit will almost
entirel y need to bc charged tn the General Fund.
Due, tn the passage of Proposirion 218, the City has !lot been able to raise taxes or fees,
Proposition 218 m:.lIldates lhat pruperty relnted tax LInd fee: increases can only be imposed after
approval by a super Il1,-l]ority vote (two-thirds) of the general elcctorute or by <.1 simple majority
\'o!e uf pr()perty O\vntrs. Attempts by most lllUlllCiPillitics to ohtain \.'oter approval to impose or
IllerCi\Se ,'itnrll1 c1r~1Il1 fees h<.1\'E' f:lilcd, S\11lle muniCipalitIES !lave 11lcrensed their trash pickup 01
sc\\'er fec:s to p{l~/ I'llI' the ,lddilI01l;1] NPDES j1['(Jgri.1J1l Cl)sh: thiS approach has been assailed try
L:l.\ {IdH1L';JCV gr\lups ;111(1 hilS resulted III court urders for thuse mUllicipalities to reimburse
r:llcTI,l)"crs
10-12
1"'he I-Iolior:ihk f'vbyor & CIty Council
Page -)-
lk'celllbCl J) :?'UO(I
Unfunded l.'ederal aud Slate Mand'-l.tes
The CIl)' '\I1d Cuunt)' Manager's Association (CCMA) has worked closcly wilh the Clly
Attorney's Association over the past several months to consider the issues of unfunded Slale
mandates within the proposed permit Co-Permittee comments regarding mandales within the
proposed permit that exceed rederal Clean Water Act requirements were nol adequately
addressed by Regional Board staff in the second draft of the permit. with the Board's Counsel
simply slating that the Regional Board has the authority to impose the requirements of the
permit. The Co-Pennittees do not dispute the legal authority of the Regional Board under the
Federal Clean Water Act and the Porter-Cologne Water Quality Control Act to impose the
requirements, but assert that the costs to implement those provisions of the proposed pell1lit that
derive solely from Porter-Cologne must be reimbursed by the State.
Article XIl1 8, Section 6 of the California Constitution provides that "...whenever the Legislature
or any state agency mandates a new program or higher level of service on any local government,
the state shall provide a subvention of funds to reimburse that local government for the costs of
the program or increased level of service. . ." except in certain specific circumstances. Through
Proposition I A, approved by the voters in 2004, Section 6 was amended to further provide that
"for the 2005-06 fiscal year and every subsequent tiscal yeaL for a mandate for which the costs
of a local govel1lJ1lent claimant have been determined in a preceding fiscal year to be payable by
the state pursuant to law, the Legislature shall either appropriate, in the annual Budget Act, the
full payable amount that has not been previously paid, or suspend the operation of the mandate
for the liscal year for which the annual Budget Act is applicable in a manner prescribed by law."
The attachment has been providcd by Senior Assistant City Attorney Marshal. It is a legal
response to the Regional Water Quality Control Board from the City Attorney Association of
San Diego County.
Attachment. Legal Comments On The Board's Response To Comments Dated August 30,
2006 On Tentative Order NO. R9-2006-00 II
cc: Sharon Marshall, Senior Assistant City Attorney
K\Public W(Jrks O[1c:raliollS\NPDES\New Permil\NPDES lnlb Item - 12-13.06.doc
10-13
ATTACHMENT "A"
LEGAL COMMENTS ON THE BOAIW'S RESPONSES TO
COMMENTS DATED AUGllST 30, 2006 ON TENTATIVE
ORDER NO. R9-2006-0011
l. INTRODUCTION
These comments are provided as a response to the Board's responses to comments issued
on August 30, 2006 regarding Tentative Order No R9-2006-00 II ("Pennit" or "Draft Penn it").
These comments were prepared by a sub-committee of legal counsel for the San Diego
copermittees and were reviewed by the members oCthe City Attorneys Association oCSan Diego
COllilty. The comments Cocus on three issues: (I) unfunded state mandates; (2) compliance with
the California Environmental Quality Act in light of new legal authority; and (3) vague and
ambiguous permit terms.
II. THE BOARD'S ACTION CONSTITUTES AN UNFUNDED STATE
MANDATE
The Board's response to the copermittees' comment regarding unfunded state mandates
neither accurately characterizes the comment nor responds to it It is not, and never has been. the
copenllittees' position that the Board lacks the legal authority to impose mandates which
"exceed" or are "more explicit" than the mandates or specific requirements offederallaw.
Rather, when the Board elects to use its discretion to impose mandates that are "more explicit"
than or "exceed" the requirements of federal law, it is electing to impose a state mandate within
the meaning of California Constitution. Art XIII B, Section 6. The Board may impose such state
mandates; once imposed, however, the California Constitution requires that they must be funded
by the State. The copermittees ask the Board to acknowledge that, as it has done in the past and
as is implicit in draft Finding E.9. portions of the permit "are more explicit" than or "exceed" the
specific requirements of federal law.
A. THE UNFUNDED STATE MANDATE PROVISIONS AND PROCESS
]. Unfunded State Mandate Provisions
Article XtIl B, Section 6 of the California Constitution provides that "[w]henever the
Legislature or any state agency mandates a new program or higher level of service on any local
govemment, the state shall provide a subvention of funds to reimburse that local government for
the costs of the program or increased level of service. . ." except in certain specific
circumstances. Through Proposition I A, approved by the voters in 2004. Section 6 was
amended to further provide that "lor the 2005-06 fIscal year and every subsequent fiscal year, for
a mandate for which the costs of a local govenmlent claimant have been detennined in a
preceding fiscal year to be payable by the state pursuant to law, the Legislature shall either
appropriate, in the annual Budget Act, the full payahle amollnt that has not been previously peid.
or suspend the operation of the mandate Cor the tiscal year for which the mmual Budget Act is
applicable in a manner prescribed by law." The concern that prompted the voters to include
Section 6 in the Californ.ia Constitution "was the perceived attempt by the state to enact
SDADMJN\SHAGfRTY\J34049 t
10-14
legislation or adopt administrative: orders cre,Jtillg. programs In be administered by local agencies,
thereby transkrring to these agencies [he lisen I responsibility for providing services that the state
believed should be extended to the public" (L()II~ Bcach IJnitied .~c.hQQ) DistrIct v. Slate of
~'alitl)J!lla (19'10) 225 Cal.App. 3d 155, 174)
Nothing in constitutional or statutory law allows the slate to shirt costs to local agencies
without reimbursement merely because those casts were imposed upon the state by the federal
government Hayes v. Commission on State Mandates. II CaL App. 4'" 1564, 1593 (1992). ^
central purpose of the principle of state subveation is to prevent the state from shifting the cost of
govemment from itself to local agencies. City of Sacramento v. State of Cali fomi a, 50 Cal. 3d
51,68 (1990). The courts have concluded that a state mandate exists where the state has a choice
in the manner of implementation of the federal mandate. County of Los Angeles v. Commission
on State Mandates, 32 CaL App. 4'" 805, 816 (1995). The focus is not simply that the obligation
arises out of a federal mandate. A determination of whether certain obligations (and therefore
costs) were imposed upon a local agency by a federal mandate must focus upon the local agency
which is ultimately forced to bear the costs and how those costs came to be imposed upon that
agency. Haves v, Commission on State Mandates, II Cal. App. 4'" at 1594. If the state freely
chooses to impose the costs upon the local agency as a means of implementing a federal program
then the costs are the result of a reimbursable state mandate regardless of whether the costs were
imposed upon the state by the federal govemment. Id. As shown in the attached chart. and
supported by the December 2000 chart prepared by this Board, various provisions of the
currently drafted permit reveal an exercise of choice by this Board in the marUler 0['
implementing federal law. Therefore, the requirements under this Draft Permit that are not
express federal mandates constitute mandates by the state subject to the subvention requirements
A "new program" within the meaning of Section 6 is a program that carries out the
governmental function of providing services to the public, or a law that, to implement state
policy, imposes unique requirements on local governments and does not apply generally to all
residents and entities in the state. (Countv of Los Angeles v. Commission On State Mandates
(1995) 32 CaLApp. 4th 805, 816.) A reimbursable "higher level of service" conceming an
existing "program" exists when a state law or executive order mandates not merely some change
that increases the cost of providing services, but an increase in the actual level or quality of
goverrunental services provided." (Sail Diego Unified School District v. Commission On State
Mandates (2004) 33 CaL4th 859,877.) Both Section 6 and state law establish certain exceptions
to the state mandate provisions, three of which have some potential application to the Draft
Permit. First, as a threshold matter, Govemment Code section 17516 currently purports to
exempt orders of the Regional Board from the state mandate provisions. The copermittees
contend that Govemment Code section 17516 is unconstitutional, and Judge Victoria E. Chaney
of the Los Angeles County Superior Comi, has. in fact. declared Section 17516 to be
unconstitutional in County of Los Angeles. et al v. State of California. et al. Consolidated Case
Nos. B5087969 and B5089785. Judge Chaney's decision has been appealed by the State to the
Court of Appeal. Second Appellate District, as Civil Case No. B J 83981. The matter has becn
fully briefed, but as of the date of this conUllent. no date for oral argument has yet been
scheduled. It is the copernlittees position that Government Code section 17516 is not a valid bar
to their unfunded state mandate claim.
SDADM!NI.SH/\GSRTY\3390Lj9 I
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Second. (Jovl'rIl111enl Code section 17556(c) provides thai a statute or executive order
shall not be cOllsidercd to he 11 state mandate irthe "statute or executive order imposes a
requiremenllhat IS mandated by a federal law or regulation and results in costs mandated by the
li:der8J go\'ernllltnL unless the statute or executive order mandates costs that exceed the mandate
in that federal law or regulation" The copennit1ees aCKnowledge that much of the Draft Permit
imposes rcquin::ments mandated by a federal law or regulation. However, the copermittees
contend that many of the requirements of the Draft Permit exceed the mandates in the federal law
and regolations. lhe (openninccs have attempted to set fOl1h in detail in Section B.2 below the
portions of the Draft Permit which tbey believe exceed the federal mandates. The copennit1ees
also contend that draft Finding E.9 and the Board's own documents establish that a large
percentage (up to 40%) of the requirements of the Draft Permit exceed the federal mandates.
Third, Government Code section 17556(d) provides that a state mandate will not be
considered to be "unfunded" if the local agency "has the authority to levy service charges, fees.
or assessments sufficient to pay for the mandated program or increased level of service." The
copermittees' previous comment explained why this provision is not a bar to an unfunded state
mandates claim. The requirements of Proposition 218, as interpreted by cases such as Howard
Jarvis Taxpayers Ass'n v. City of Salinas (2002) 98 Cal.App.4th 1351, severely limit the ability
of the copermittees to fund the mandates of the Draft Permit. Certainly, the copermittees
authority, whatever it may be, is not "sufficient to pay for the mandated progranl or increased
level of service." It is for this reason that the copermittees raise the unnmded state mandate issue
- to llnd a funding source for this state mandated program or increased level of service.
2. State Mandates Process
The Legislature has established an administrative process for seeking a determination
that a mandate is an unfunded state mandate within the meaning of Section 6. (Gov. Code !is
i 7500 et. seq.) These procedures are the sole and exclusive procedure by which a local agency
may claim reimbursement for state-mandated costs. (Gov. Code S 17552.) The procedures
require the commencement of a test claim before the Commission on State Mandates, with
judicial review only being available after a Iinal detennination by the Commission. (Gov. Code
S 17553, 17559.)
Traditional concepts of exhaustion of administrative remedies apply to an unfunded state
mandate claim. (Tn-County Special Education Local Plan Area v. County of Tuolumne (2004)
123 Cal.App.4th 563, 572.) For this reason, the copermittees would need to pursue a petition to
the State Board and then process a test claim with the Commission if the Regional Board does
not agree that portions of the Draft Permit "mandate costs which exceed the mandate in the
federal law. "
B. THE DRAFT PERMIT IMPOSES UNFUNDED STATE MANDATES
UPON THE COPERMITTEES
I. Permit Language and Previous Board Statements.
S1)ADMINISl-lf\(;ERTYI3YJ(J<l<J 1
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The cOjJCllllitkes contend that the language of the Draft Permit and previolls Board
statcrllcnls del1lonstrate that pOltions of the Omit Permit constitute unfunded state mandates_
"'liSt. hJl(iIng L'J slutes that
l,zequirements in this order that are mure explicit than the federal
storm water regulations in 40 CFR 122.26 are prescribed in
accordance with the CW A section 402(p)(3 )(B)(iii) and are
necessary to meet the MEP standard.
In its response to the copemlittees' comment on this Finding E.9. the Board dismisses the
copellnittees' commcnt as a misrepresentation of Finding E.9. (See Responses to Comments, p,
59), While there may be a legitimate difference of opinion concerning the meaning of Finding
E.9, the copennitlees did not misrepresent the Finding in their comment It is the copennittees'
view that when the Board elects to be "more explicit than the federal storm water regulations" it
is imposing state, rather than federal, mandates, While the Board's imposition of such "more
explicit" mandates may be based upon its belief that such additional mandates are needed to
meet the MEP standard, that carulOt convert those additional mandates into mandates required by
federal law or regulations. Such an elastic view of federal law would mean that the federal
mandates are different in San Diego County than in Riverside County, in Texas than in New
Jersey This is inconsistent with basic concepts of federal law.
The copemllttees further contend that their reading of Finding E.9 is consistent with prior
official documents of the Board. For example, in Attachment 4 to Agenda Item 5 of the Board's
December 13,2000 meeting, Conclusion 14 provides that:
Approximately 60% of the requirements in Tentative Order 2001-
02 are hased solely on the] 990 federal NPDES Storm Water
Regulations, The remaining 40% of the requirements in the
Tentative Order "exceed the federal regulations." Requirements
that "exceed the federal regulations" are either more numerous,
more specific/detailed, or more stringent than the requirements in
the regulations.
At least one legal commentator has cited to Conclusion] 4 to help explain the federal/state law
structure of the NPDES process and has noted that in certain circlilllstances, such as CEQA, "this
feature of going beyond the federal requirements is legally significant." (Minan, Municipal
StOlTIl Water Pel1nitting in California, (2003) 40 San Diego L. Rev, 245, 251 and fn. 30,)
Again. the copermittees do not refer to this statement to show thatthe Board has
exceeded its legal authority, The copemlittees understand that the Board believes that the
portions of the Dralt Permit that "are more explicit" or, as the Board phrased the issue in 2000,
which "cxceed the federal regulalions:' are needed to meet the MEP standard and are consistent
with the Board's authority. The copennittces simply disagree with the proposition that anything
the Board does in an attempl to achicvc the MEP standard constitutes a federal mandate, and ask
the Board to acknowledge, as it did ;n 2000, that portions of the Draft Permit are not mandated
by federal law.
SD/\f)MfN\SHACi[.:KTY\]}9044 I
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2. Specil~c State Mandates.
Legal cOllllsel for the copenllittees have compared the mandates of the Draft PermIt \.vlth
the specitlc reyuiremenLS or i'ederallaw and regulations, as the Goard did in December :2000 A
chart comparing the own Pellnil with the fedcralmJndatcs is attached, As the chal1
demonstrates, and as the Board's staff found in :2000, signi tlcant portions or the Draft Perml t
"exceed the federal regulations'-'
C. THE BOARD'S RESPONSEIPOSITION IS UNTENABLE
It is the copermittees' position that the Board did not respond to the actual comment
made by the copelmittees regarding unfunded state mandates, To the extent the Board
responded to the actual conm1ent made, the copermittees understand the Board's response to be:
(1) all the mandates of the Draft Permit are necessary to satisfy the MEP standard and, therefore,
are federal mandates; and (2) the mandates of the Draft Permit merely expand upon or elaborate
on Order No, 2001-01 's pre-existing requirements, (See Responses to Comments, p. 59 and 65,)
The copennittees contend that both of these responses are inconsistent with the lmfunded state
mandate provisions,
First, as noted above, it cannot legally or logically be the case that any1hing the Board
mandates in an NPOES permit is by definition a federal mandate simply because all NPOES
pem1its must strive to achieve the MEP standard, Such an approach would mean that the
requirements of federal law and the federal regulations vary widely from region to region, state
to state.
Rather, the logical approach, used by the Board in 2000, is to compare the express
requirements of federal law and regulations (i,e" what must be in every NPDES permit) with the
requirements of each individual permit to determine those areas in which the Board has elected
to use its discretion to impose requirements that "exceed" or are "more explicit" than the federal
mandates, In ShOlt, not everything imposed under the umbrella of federal law is a federal
mandate,
Second, the additional requirements of the Draft Pem1;t constitute a "higher level of
service" concerning an existing "program," The courts have interpreted the phrase "higher level
of service" in a maID1er that forecloses the Board's "elaboration" response, By definition, the
iterative process mandated by the State Board is designed to increase the level or quality of the
storm water program, and the Draft Pem1it attempts to do just thaI. Since the Board's
"elaborations" are intended to increase the actual level or quality Mthe eopermittees' storm
water program, they constitute a "higher level of service" within the meaning of Section 6,
[n both instances, the Board has exercised a choice in the manner in which it has imposed
many of fhe requirements under this pem1iL As such, those requirements shown m the state
mandate category of the attached chart shall be reimbursable.
1lI. FAILURE TO COMPLY WITH THE CALIFORNIA ENVIRONMENTAL
QUALITY ACT
The Doliey oftbe state is to ensure that actioD is taken to provide the people of this state
.'iDlI.DMIN\.sHAGER-l-Y\3JWJ4lJ !
,5,
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with notiu:-:;l clean water but also clean air. lju,-lfity at'sthe1ics. ,-llll! nalur~d. scenic, aml his(uric
ellvlronmcll1a] qualities. Public Resources CouL section 210()I{h). In i.lccordance with the
req uirements of the Calit()rnia Environmental 0l1ality Act ICH)A), the Hoard has failed i(1
consider the physical effects on the environment from llle permit. (See Public Resources COdl'
section 21080.) Environmental analysis should occur as "early as feasible 111 the. planning
process to cnablc environmental consideration (0 intluence project program and design a11d yet
late enollgh to provide meaninghrl infollllation for environmental assessment." (CEQA
Guidelines seclioo 15004.)
In County of Los Angeles v, California State Water Resources Control Board, 2006
OJDAR 13567 the Court squarely addressed this issue, In County of Los Angeles, the Calitomia
State Water Resources Control Board (State Board) argued that issuance of a National Pollutant
~ischarge Elimination Systems pern1it is exempt from CEQA lindeI' Water Code scction 13389.
The Court disagreed in large part with the State Board, The Court opined that Water Code
section 13389 merely exempts the application of chapter 3 ofCEQA. Nothing in state or federal
law exempts the wholesale application ofCEQA to the National Pollutant Discharge Elimination
Systems permit. Therefore, the Board must engage in specified environmental assessments in
accordance with chapters I and 2,6 ofCEQk Id, at 13574-13575.
[n the present instance, Section E,I t of the permit states that the permit is exempt from
CEQA in accordance with Waler Code section 13389, As such, no environmental analysis has
been prepared to enable the copermittees or members of the public to assess the potenlial
environmental impacts of the permit
Under the holding in County of Los Angeles v. Caliiornia State Wat~ Resources Control
Board, specilled environmental assessment must occur beiore this permit is approved. Not only
must the potential environmental effects of the permit be assessed, but the results of an
environmental assessment may iniluence how the pennit is dratied or implemented. Therefore,
to comport with the requirements ofCEQA and the recent County of Los Alweles decision, the
permit's potential environmental effects should be assessed and made publicly available for
comment, prior to this Board's action on the Draft Permit itself
IV. THE DRAFT PERMIT'S TERMS ARE INHERENTLY V AGUE AND AMBIGUOUS
The Copem1ittees reassert their claim that the pemlit contains many provisions that are
inherently vague or ambiguous, Consequently, the Copermittees cannot discern how to comply
with the permit's terms, nor can the Board eniorce its vague provisions. In certain circumstances,
the copcnnittees will not know whether their conduct is necessarily proscribed. In other
instances, the terms of the permit fail to provide an ascertainable standard of conduct Given the
vagueness of certain provisions, Ccopermittees could be subject to arbitrary enforcement t(Jr
failing to comply with provisions that lack sufficient speciilcity 10 permit reasonable compliancc
For example, Sections A and B set iorth the general prohibitions under statc or federal
law pertaining to discharges, However, subsequent sections, such as Sections D (page 15), D.I
(page 15-16), D2 (page 26), 03 (page 29), 04 (page 38), E,2 (page 43) and F (page 46) still
contain paraphrases of the prohibitions in various fom1s. Given the inconsistencies between the
prohibitions in Sections A and B and the differing versions throughout the permit. the
S DADM IN\SH AGFRTY\J:j9049I
-6-
10-19
coperJl1illC'cs canllol detellllinc if the tell11S in Sections f) lhl'ough F were intended to prohibit the
same conduct as in Sections A and Bor expand unlhose prohibitions If intended to probibit the
same cunduct. there is 110 reason or benetit In restating the prohibitions. More importantly,
n.:stating the [lrnhibilions llsing different language creates amhiguity. 011 the other hand, if
Sections U through r are intended to prohibit different conduct no state or federal authorization
has been specitied. See discussion in Section II above,
V. CONCLUSION
Thc Copermittees' unfunded state mandatc comment is not intended to be an attack on
the Board's legal authority, The eopemlittees merely ask that the Board acknowledge, as the
copermittees believe the Board has done in the past, that some of the mandates in the Draft
Pennit go he yond wbat the federal law requires. The Copermittees understand and acknowledge
that the Board is free to go beyond federal law and that very good reasons may exist to do so'
However, when the Board imposes mandates not required by federal law it triggers the state's
unfunded state mandates provisions, It is the Copelmittees desire that, through the unfunded
state mandates process, they may obtain the funding needed to pay for these mandates,
The Cope1l11ittees fUl1her request that the Board perf 01111 the necessary environmental
analysis as required undcr the California Environmental Quality Act While the stated goals of
the Clean Water Act and the Porter-Cologne Act are to improve and protect our waters, the
Legislature has declared that it is also their policy to take all action necessary to advance the
goals of clean air, enjoyment of aesthetic, natural, scenic and historic envirorumental qualities,
As such, this permit must be evaluated under the requirements of CEQA to ensure that all
policies of the state are considered when this Board takes its action.
Finally, it is the CopeI111ittess' request that the Board promptly eliminate and/or
otherwise clarify the inherently vague and ambiguous language found in the Draft Permit so as to
allow the Copermittees to implement its provisions, once funding has been found, in a clear and
expeditious manner. The Board's failure to do so will only result in further delays due to the
Copenl1ittees' inability to resolve those inconsistencies found in the language of the Draft Permit
as descri bed above,
.c.;I)^Di'vlli'I\':iI-I,\(~[R IYIJJ904':> I
.7.
10-20
Ar77t~fhtr EUi I{
I nfonnationa[ iJv{emorandum
./
January II, 2007
FileNo 0780-70-KY-181
TO: The Honorable Mayor and City Council
VIA: Jim Thomson, Interim City Manager
FROM: Dave Byers, Director of Public Works Operations
SUBJECT: Pending Adoption of New Five-Year National Pollutant Discharge Elimination
System (NPDES) Municipal Storm water Pennit by the San Diego Regional
Water Quality Control Board (Regional Board)
The purpose of this memorandum is to update City Council on the pending adoption of the new
five-year NPDES Municipal Permit At its scheduled meeting of December 13, 2006, the
Regional Board had planned to consider the adoption of a new five-year permit regulating the
discharge of urban-generated runoff within San Diego County to receiving waters via dry
weather and wet weather flows through the municipal stonn water conveyance system (i.e"
streets, gutters, pipes, and open channels), However, the meeting was canceled due to lack of a
quorum, The pem1it will now be considered at the Regional Board meeting scheduled for
January 24, 2007,
Last minute revisions to the pennit with regard to implementation of "Low Impact
Development" ("LID") principles for new development and redevelopment projects, as well as
stann drainage system projects, have been made at the request of environmental advocacy
groups, The Regional Board released these revisions on December 4, 2006, without the
opportunity for full public review and comment Concurrent with the cancellation notice for the
December 13, 2006 meeting, the Regional Board announced that they would accept written
comments on the latest revised language included in the draft permit. Written comments were to
be submitted to the Regional Board before 5:00 p,m" January 2, 2007. Staff prepared and
submitted comments within the specified comment period (Attachment A), The County of San
Diego also submitted comments on behalf of all Copermittees (Attachment B),
During the meeting of January 24,2007, the Regional Board will hear oral public testimony and
consider adoption of the new pern1it Representatives from Elected Officials, City Managers,
and City Attorneys plan to speak during the hearing and put forward their concerns regarding the
funding for the implementation of pernlit's additional requirements, and the fact that they
consider some of the major requirements fall under the unfunded State mandates category and
need to be reimbursed by the State if they remain in the final permit
Attachments
KIPublic Works Operalions\NPDES\New Perlllit\NPDES Info hel1l .0 1.11.()7doc
10-21
RESOLUTION NO, 2007-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AMENDING THE FY 07 BUDGET BY
APPROPRIATING $620,000 FROM THE A V AILABLE
BALANCE OF THE PUBLIC FACILITIES DEVELOPMENT
IMPACT FEE (PFDIF) FUND BALANCE AND AWARDING A
PURCHASE AGREEMENT IN THE AMOUNT OF $620,000
FOR TWO DRAIN CLEANING TRUCKS TO DION
INTERNATIONAL TRUCKS IN ACCORDANCE WITH THE
TERMS AND CONDITIONS OF CITY OF SAN DIEGO BID
6971-05-Z AND PRICING AGREEMENT 8070191-0
WHEREAS, on January 24, 2007, the San Diego Regional Water Quality Control Board
adopted the new National Pollutant Discharge Elimination System (NPDES) Municipal Storm
Water Permit, Order No. R9-7007-0001 (New Permit); and
WHEREAS, the New Permit includes many new and expanded tasks at jurisdictional,
watershed, and regional levels compared to the previous NPDES Municipal Permit (Order No.
2001-01); and
WHEREAS, in order to meet the New Permit's compliance deadlines, it is necessary to
order two vacuum-type storm drain cleaning trucks for delivery in Spring 2008 due to an
approximate lead time of one year between placement of an order for the trucks and their
delivery; and
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista hereby amends the FY07 budget by appropriating $620,000 from the available balance of
the Public Facilities Development Impact Fee (PFDIF) Fund Balance and awarding a purchase
agreement in the amount of $620,000 for two Drain Cleaning Trucks in accordance with the
terms and conditions of City of San Diego bid 6971-05-Z and Pricing Agreement 8070191-0,
Presented by
Approved as to form by
~\(~\\~\;\
Ann Moore
City Attorney
Dave Byers
Director of Public Works Operations
J:\Attorney\RESO\FINANCE\Amend FY07 PWOPS 5 15 07,doc
10-22
/rr-r;zrc,{j Jv1&J r 1
City of San Diego
PRICING AGREEMENT
Bid No.: 6971-05-Z
Ship To: Center 10: 057PURCH Bill To: Center ID: 057PURCH Date: 07/25/06 Page: 1 of 2
PURCHASING PURCHAStNG Time: 12:49:39PM
SEE ACTUAL POs FOR SPECIFIC SEE ACTUAL POS FOR SPECIFIC Bill-TO AND OPtS No,: PA05-8070191_0
Bill-TO AND SHIP-TO ADDRESSES SHIP-TO ADDRESSES
SAN DIEGO, CA SAN DIEGO, CA Commodity Code: 4212
Last Option End Date: 08/07/10 ,
Vendor: Terms: Net 30
DION INTERNATIONAL TRUCKS, LLC DBA FOB:
Destination
DION INTERNATIONAL TRUCKS Tax Code:,..,T ,/
5255 FEDERAL BLVD , ,
SAN DIEGO, CA 92105-5710 BuyeA\~~ci,~hy Asbill-Gumbs
USA Phone: (619) 236-5923
Fax: (619) 533-~225
Vendor 10: 01100126995 Phone: (619) 263-2251 Fax: (619) 263-9021 E-Mail: BP.tsbil1Gumbs@sandiego.gov
Line # Item ID/Description Quantily/UlM Unit Price Extended Price
This Document is for Contractual Information Only and is NOT a Purchase Order
Purchase Orders Wifl be Issued as Needed
1 TRUCK, DRAIN CLEAN 5,00 EA $ 263,105,0000 $ 1,315,525,00
Drain cleaning truck
Mfr. : InternationaljVactor
Delivery Time: 270-300 days ARO
Warranty Period: 12 months
Water Tank warranty period: 20 years
~ Addi tional cost per unit to provide and install an exhaust
particulate trap: $20,000,00 only if approved by CARE and if it is
available.
2 PUMP, TRASH 5,00 EA 10,953,0000 54,765,90
Addi tional cost to provide and install a compatible
hydraulic pump off system/debris tank trash pump on the drain. -
cleaning truck listed in item L
Mfr. : International/Vactor
Delivery time: 270-300 days ARO,
Warranty period: 12 months
3 COATING, TANK 5.00 EA 3,806,0000 19,03000
Addi tional cost to provide and install a compatible debris
tank coating on the drain cleaning truck listed in i tam 1.
Mfr. : Poly Bird
Delivery time: 270-300 days ARO
Warranty period: one year
4 TANK, 5-YD DEBRIS 5,00 EA 0.0001 0,00
Price deduct from unit price of item 1 to provide and
install a S-yard debris tank with 1,000 gallon fresh water system in
lieu of a 10-yard debris tank with a 1,500 gallon fresh water system,
compatible with item 1.
Mfr. : International/Vactor
Delivery time: 270 to 300 days ARO
Warranty period: 12 months
Deduct: ($-16,231,00)
Notes:
Have queslions about doing business with the City of San Diego? Visit our Purchasing web site at
wvvw.sandieao.aav/Durchasinq and get all the answers. SEE LAST PAGE
For specific information regarding contract opportunities with the Cit~~ Diego, please visit our FOR TOTALS
Bid & Contract Opportunities web site at www.sandieoo.Qov/bids-c a .
_. -
PANO./
8070191-0
PA2555A IR<'" 9-n?1
City of San Diego
PRICING AGREEMENT
Bid No.: 6971-05-Z
PANo.1
8070191-0
Ship To: Center ro: 057PURCH
PURCHAStNG
SEE ACTUAL POs FOR SPECIFIC
BILL-TO AND SHIP,TO ADDRESSES
SAN DIEGO. CA
Bill To: Center 10: 057PURCH
PURCHASING
SEE ACTUAL POS FOR SPECIFIC BILL-TO AND
SHIP-TO ADDRESSES
SAN DIEGO. CA
Date: 07/25/06
Time: 12:49:39PM
OPIS No,: PA05-8070191-0
Page: 2 of 2
Commodity Code: 4212
Last Option End Date: 08/07/10
Vendor:
DION INTERNATIONAL TRUCKS, LLC DBA
DION INTERNATIONAL TRUCKS
5255 FEDERAL BLVD
SAN DIEGO, CA 92105-5710
Terms: Net 30
FOB:
Destination
Tax Code: T
Vendor lD: 011 00126995
Phone: (619) 263-2251
Fax: (619) 263,9021
Buyer: Beverly Asbill-Gumbs
Phone: (619) 236-5923
Fax: (619) 533-32J5
E~Mail: BAsbillGumbs@sandiego.gov
USA
Notes (cont):
Furnish the City of San Diego with Drain Cleaning Trucks.
Exercising Option #1 to Renew for an Additional One (1) Year Period
beginning 08/08/06 through 08/07/07. A 5.08% or $12,130.00 price
increase has been granted for Item 1.
Council Resolution No.: 300756
Options Remaining:
08/08/07 - 08/07/08; Increase not to exceed 20%,
08/08/08 - 08/07/09; Increase not to exceed 20%,
08/08/09 - 08/07/10; Increase not to exceed 20%,
Vendor Contact: William M. Tollefson, Fleet Sales Manager
E-mail: btollefson@diontrucks.com
Insurance and bond shall be updated as required.
Distribution: File, Vendor, Buyer, OPIS, Kelleher, Kristina Blake
MS 7B, Mark Caroccia MS 42, Robert York MS 902
Have queslions about doing business with the City of San Diego? Visit our Purchasing web site at
VVVVVJ.sandieoo.oov/purchasinq and get all the answers.
For specific information regarding contract opportunities with the ~~..Q~n Diego, please visit our
Bid & Contract Opportunities web site at www.sand;eqo.qov(bids-~b11trcfttt.
Line Item Total $
Tax
Freight
1,389,320,00
107,672,31
0.00
PA Total: $
1,496,992.31
THE CITY OF SAN DIEGO
July 26, 2006
ML William M, Tollefson, Fleet Sales Manager
Dion International Trucks, LLC DBA
5255 Federal Boulevard
San Diego, CA 92105-5710
Dear ML Tollefson:
Subject: Bid No, 6971-05-Z - Drain Cleaning Truck
The City of San Diego is exercising the option to renew the subject contract for an additional
one (I) year period beginning August 8, 2006 through August 7, 2007 subject to receipt of valid
insurance certificates and bonds, as noted below, by the contract start date, A $12,730,00 price
increase, which represents a 5,08% increase, has been granted for this option periodu
Insurance Requirements: Your present agreement with the City of San Diego requires you to
have valid insurance for the entire contract period, Therefore, it is imperative your insurance
carrier provide us with renewal certificates and bonds at least ten (10) calendar days prior to the
expiration date in order to ensure cominuation of this contract
Our records reflect the following insurance coverage on file and expiration dates.
1. COMMERCIAL GENERAL LIABILITY and PROPERTY DAMAGE for $1,000,000.00;
expires August 1,2007,
2, WORKERS' COMPENSATION on !tIe; expIres August 1,2007,
Bond Requirement
. WARRANTY BOND in an amount to be determined,
The contract for this option period will not be effective and purchase orders cafillot be issued
until updated insurance certificates and bonds have been received for insurance and bonds which
has expired or will expire prior to the begilming of the new contract period August 8, 2006
through August 7, 2007. Renewal insurance certificates and bonds, as noted above, must
be received by the Insurance Coordinator, City of San Diego Purchasing Division, 1200
Third Avenue, Suite 200, San Diego, CA 92101-4195, no later than teu (10) calendar days
prior to the expiration date.
.~
~
DIVERSITY
'~'_""'" "-""e"
Purch~l9ivision
1200 Thi,d Avenue. Suite 200. Sac Diego, (A 9210H195
. .
Page 2
Bid No. 6971-05-2
ML William M, Tollefson
July 26, 2006
Purchase order(s) will be prepared as required, It is understood that original conditions of
contract will prevail.
For questions regarding insurance and bond requirements, please contact the Insurance
Coordinator at VSummers@sandiego,gov, or at (619) 236-6254. However, concerns regarding
this contract should be directed to me at MWinterberg@sandiego.gov, or at (6 I 9) 533-6441,
Thank you for your continued interest in doing business with the City of San Diego.
jl;:; 11.~~
Michael Winterberg
Procurement Specialist
MW/mn
Enclosures
10-26
A1TAC/-fM~ 3
Infonnatlona[ Memorandum
-
December 13, 200(j
FileNo. KY-181
TO:
The Honorable Mayor and City Council
VIA:
FROM:
Jim "1'110I11S011, Interim City Manager
Dave Byers, Director of Public Works operation~j
Pending Adoption of New Five-Year National Pollutant Discharge Elimination
System (NPDES) Municipal Stolll1water Pem1it by the San Diego Regional
Water Quality Control Board (Regional Board)
SUBJECT:
At its scheduled meeting of December t 3,2006, the Regional Board had planned to consider the
adoptIon of a new tivc-year pcrmit rcgulating the discharge of urban-generated polluted runoff
within San Diego County to rccelvlI1g waters VIa dry weather and wet weather flows through the
municipaJ storm '.v'atel' conveyance system (i.e., streets, gutters, pipes, and open channels).
However, the meeting \vas canceled clue to luck of a quorum. The pennit will now be considered
at either the Regional Board meeting scheduled for February 14,2007 or at a special Regional
Board mccting to bc scheduled in January 2007. The proposed permit would be the third pennit
issued by the Regional Board since 1990 to the City of Chula Vista, the seventeen other cities
within San Dlego County, the County of San Diego, the San Diego Unified Port District, and the
S:lIl Diego AIrport Authority (Co-Permittees),
vVith the adoption of each permit, regulatory requirements have become increasingly complex
and demanding, as well as mme and more costly ror public agencies and pnvate entIties (I.e.,
businesses. developers, etc.), to implement. The City's eost of implementing the existing permit
In FY 200()-07 is approximately $1,5 million per year. Staff estimates that the cost to implement
the proposed permit will increase total program costs to $3,9 million in FY 2007-08 (including
the one-time purchase or equipment totaling $900,000) and $3,0 million per year in the second
through tilth years of the proposed permit These estimated costs do not include cost impacts to
developers and businesses. A signific31lt portion of these new costs to the City, as well some
existing costs, are unfunded State mandates and are eligible for reimbursement under State
Constitutiolli.\l provisions, although the Regional Board hns not yet acknowledged this.
Finally, last Illlnute rev'ISI()IlS to the permit with regard to implementation of "'Lm.v Impact
DCVc!UpLllCllr' (""L.ID--) principles for nevv development and redevelopment projects, as \vcll as
storlll drainage syslem projects, have been Il1<:H.le at thL request of environmental advocacy
gl'uup.'). TilL Rcgiuncl1 Board releasee! these revisions 011 December 4. 1006 without the
opportunity for full publiC rt:\'lt'\V <lIld com men!. However, a full sixty-day public review and
C(1mlllent periud was pro\'itkd ti.n the August 30, 2006 revised pCll11it. 'vvhich \-vas the tirst
reVISIon.
10-27
I'hc t1on\lrlll)1e Mayor 8:. ('Ity C<!LlI1ul
hl,)2,l' -2-
Lkt.T11l hl..T 1 ."i. ~ ()( lh
The purpose ur this memorandulll IS to Il1funn City Council of the pCIHilng ,1doptl0I1 oj" tlH: 11C\V
live-year NPDES Municlp~t [""mil and provide background \In the progral11, When the pubhc
hearlng occurs, elected officials Ij'om v;lriuus cities ill the region will speHk oJt the public !It'uring
in <1n organized presentation PnrLjeipation in the public hearing hy the Mnyor or <l
Councilmembcr would be wclcolned and statf will advise the Maynr and City COLlllcil of the
new public hearing dale when it IS known. Meetings are held in the B\lard RO\lm \lflhc Regional
WaleI' Quality C\lntrol Board klcaled at Y 174 Sky Park ('ourl, SUlle 100, San Diego, Caliil'rl1ii1
92123. Basic points suggested t\.Jr public testimony include:
. Thank the Regional Board and staff for the many technical changes made 111 response to
Co-Permittee comments.
. State that keeping the environment clean is a top prionty and thai the City of Chula Vista
has a strong history ot~ and unquestionable reputation fix, environmental stewardship and
leadership,
. State that San Diego County's economy and local revenues are down due to a slowdown
in construction and real estate, and that local agencies are having trouble paying for basic
services, as well as maintaining aging infrastructures.
. Indicate that the proposed pen11il would more than double the City's existing compliance
costs and Proposition 218 restrictions do not allow local agencies to raise most taxes or
fees without super-majority (two-thirds) approval of the general electorate or simple
majority approval of property owners, A number of agencies, most recently the City of
Encinitas, have attempted to gain voter approval to raise or increase fees tor NPDES
Municipal Permit compliance activities, hut hnve failed; in our region, only the City of
San Clemente has been able to gain voter approval for a live-year fee increase. largely
oue to San Clemente's economic reliance on its beaches and coastal resources. As a
result, General Fund revenues, which are traditionally used 10 fund police and tire
services, libraries, recreation, and other hasic public services, will need to be tnpped to
pay for increased NPDES Municipal Stormwater program costs, thereby leading to
reductions in basic publ1e service levels.
. Indicate that the 4uestion of untlll1ded State mandates contained with the proposed permit
remains unaddressed and request that the Regional Board consider this Issue more closely
heforc adopling the new permit Further, under State Constitutional provisions, the State
Legislature must reimburse local agencies for the implementation of untlmded State
mandates; otherwise, unfunded State mandates must be suspended if the State Legislature
docs not make reimbursement.
. Encourage the Regional Board to not adopt the permit at this time In order to take more
time to consider the verhal comments offered during the public heoring and the extensive
written legal comrnents on unfunded State mandates, and to provide appropriate time tl)r
full publiC review of recent changes to the proposed pernlit related to Low. Impact
DevclolJmeni.
Historical Back~lml\1d of the NPDES MuniCipal Stlmnwater Permit
Until 1987, the Federal Wakr Quality Control Act (Clean Waler Act) nl' t 972 regulated point
sources of \V'atcr pollution, such as industrial discharges ami discharges h.()\11 Publicly Owned
10-28
The ll(lllOr~lh1c i'.iLlyur 8:. City Cuu11lil
j\n_'\
j )CU..'I 11 I l'-.T ] ,~."(.Hi(!
Wastnvaler Treatment Works (POT\Vs). The Ullilcd St:lles Cll\.'ll\lJ\lllclltal PnltcctHlll Agcj"](.:V IS
responsible li,r the implementation orthe FcdtTal Clea" V,!alcr Act
In J t'nn, the CleaIl \Vater Act \-vas alllended to Gstablish a permitting pn\ceSS amI rL'guhllinl1s tt)!
non-point sources of water pollution (i.c., sources of pollution 111 \vhicl1 a speClt~c and discrete
origin, such as a pipe outfall ti'om a [)OTvV, c;m 11 ot he identifIed), such as urban stOnl1\vater
runoff and discharges from specitic industry types ~lIld construdiull siles. This permitting
process is implemented through the National Pollutant Discharge ElillliJj,!1Hlll SystL.:lll {NPDES)
Permit Program.
In California, the Porter-Cologne Watcr Quality Control Aet (Calrtllrllia Water Code) we)'-
established to tlnther augment, and to set regulations above and beyond, tlie Federal Clean Water
Act
In California, the United States Environmental Protection Agency has delegated authority for
implementation and enforcement of the NPDES program to the State of California through the
State Water Resources Control Board and its nine Regional Water Quality Cuntrol Boards.
These regulating agencies issue NPOES permits and ensure compliance by permittees, including
municipalities. NPDES penllits can be general (statewide), regional (cOUlltyv,ride), or individual.
The NPDES permits for industrial facilities and construction project::; are statc\vidc, \vhile
municipal permits are issued at the regional level. Individual permits arc also issued, such as the
Caltrans NPOES permit
The San Diego Regional Board issued the tirst NPOES Municipal Permit teJr the San Diego
County ReglOn in 1990 (Order No, 90-42). The Municipal Permit covered all San DICgO County
jurisdictions, including the County of San Diego, the San Diego Unltied POlt District, and
eighteen municipalities in San Diego County. The Municipal Pennlt was to be re-issLlecl every
f,ye years, but this did not happen until ]998 when Tentative Order No. 99-01 replaced the older
pelll1iL The next re-issuance of the MuniCipal Permit was on February 2 t, 200 I (Order No.
2001-0 I), The San Diego Airport Authority was added to the list of Co-Pei1l1ittees covered by
this regional pern1it. CUlTently, the City of Chula Vista is regulated under NPOES Order No.
2001-0L
ProDosed Pemlit (Tentative Order No, R 9-2006-00 II)
The proposed perrnit has been released for public reviC\v and comment t'vvic.e since ]\;1arch 10,
2006. The Regional Board has received oral am.! written comments on the TentHtive Order and
has made amendments to the contents of the 'Tentative Order as a result of those CUl1lments.
Throughout the public review process, the San Diego County fvlunicipDI Pcn11lt Cu-Perrnitlccs
cooperated at three different levels (City i'vlanagers, Attorneys. 3nd tccl1nii..:al sti.lft) to discllss and
submit regional comments on the Tentative Order. In additioll, lIlclividual Co~Pernllttces,
including the City of Chub Vista, submitted their own specific C(l111111enls during buth public
hearings.
10-29
lllL' H\II),\Llhk rv!~I'il\1 ,~ <. 'Il); ('IIUlled
j-\i,~~C -4
Decelllber l.l, 2(J()(_1
Cnlll]!JJ"cd Ip lhe eXIsting l'V1Ullicip,1I Permit. TCllliltivc Onkr No. RlJ-20()()-OOII includes
expanded :lIld lll{lre prcscripti,'e rcquirL'lnel1(s. 111Cludll1g drainage system maintenance
frcqllcncje~ and sCaStHl~i1 limiu.lliu!ls, additional water lju~llity monitoring, i:IJditional inspections
()f induslriill, C0111111Crcial, Hnd construction aClivitlc~ and l~lcilities, additional requIrements for
nc\V development and redevelopment (including n"Hydm-Mnciification Plan" requirement t(lr
new development), watershed activities, and data tracking/reporting requirements.
The Rcgionnl Board responded favorably tu most of the technical COlllments provided by the Co-
Permittt::es iJnd amended the Tentative Order to provide some of the tlexibility needed to develop
practical as wel I as cffecti ve programs, However, comments on specific legal issues were not
satisf~1ctorily addressecl. LcgiJl issues arc mainly ft1Cllscd on the prohibitive cost of the programs
and the fact that many of the requirements are state unfunded mundate~ that are above and
beyond the Federal Clean Water Act requirements and, therelore, Co-Permittees must be
reimbursed fc,r their costs to implement them under State Constitutional provisions, The
Regional Board has argued that there are no state unfunded mandates in the Tentative Order and
has rejected the argument
Program Costs Jnd Fundinl!
The City of Chula Vista's lotal NpDES program expenditures IC)r Fiseal Year 2005-2006 were
approxil1l<ltely $1 A million (cxcludlng Capital Improvement Project for drainage improvements),
Costs fIX Fiscnl Year 2006-2007 will be close to $J.5 million. The new permit requirements are
expected tel add anothcr $2.4 millIOn in the lirst year (2007-2008 FY) and about $1.5 million
annually in the following four years to the present costs. The first year expenditures include
start-up costs associated \.-vith the purchase of new equipment.
Chula Vista Municipal Code Chapter 14, t6 established a StOlll1 Drain Fcc to provide a funding
source for the implementation of the NPDES Permit requirements. Since 1991, the Storm Drain
Fcc has been kept at the same rate of $0.70 per month pCI' Single tilmily home and $ 0,06 pcr
Hundred Cuhic Feet (HeF) of waler consumcd tC)r multif~lmily and commercial land uscs to the
current date. This tec generates apprOXimately $500,000 per year in revenue. The balance of
programs costs are covered through a variety of development-related fees, maintenance dishiet
fec:-:i, and the General Fund; increases in program costs under the propo::;ed pcnnit will almost
entirely need to be charged to the General Fund.
Due to the pussage of Proposition 218, the City has not been able to raise taxr;:s or fees.
Proposition 218 mandates that pruperty related tax and fee increases can only be imposed alter
approval by a super majority vote (two-thirds) of the general electorate or by a simple majority
vote of prnperty O\.vners. Attt..:mpts by most municipalities tu ohtain voter approval to impose or
increase: storm drain fees have failed, Some lllunicipalil1es have increased their trash pickup or
se\ver fees to pay 7t')r the udditi{lllnl NPOES program Cl.JSts: thIS appro<.lch has been assailed by
tax advucacv groups and ha~ rC~lllted III court orders for those 1111ll1lcipalities to reimburse
rlltc']lnycrs.
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The )-lonor;Jhlc f'v1ayor & City Council
Page -5-
DI.xe1l1bcr i :'~. 2006
Unfunded Federal and Slate Mandates
The City and County Manager's Association (CCMA) has worked closely with the City
Attorney's Association over the past several months to consider the issues of unfunded State
mandates within the proposed permit Co-Permittee comments regarding mandates within the
proposed permit that exceed Federal Clean Water Act requirements were not adequately
addressed by Regional Board staff in the second draft of the permit, with the Board's Counsel
simply stating that the Regional Board has the authority to impose the requirements of the
permit. The Co-Permittees do not dispute the legal authority of the Regional Board under the
Federal Clean Water Act and the Porter-Cologne Water Quality Control Act to impose the
requirements, but assert that the costs to implement those provisions of the proposed pennit that
derive solely from Porter-Cologne must be reimbursed by the State,
Article Xlll B, Section 6 of the California Constitution provides that "",whenever the Legislature
or any state agency mandates a new program or higher level of service on any local government,
the state shall provide a subvention of funds to reimburse that local government for the costs of
the program or increased level of service, . ," except in certain specific circumstances, Through
Proposition I A, approved by the voters in 2004, Section 6 was amended to further provide that
"for the 2005-06 fiscal year and every subsequent tiscal year, for a mandate for which the costs
of a local govel11ment claimant have been determined in a preceding fiscal year to be payable by
the state pursuant to law, the Legislature shall either appropriate, in the annual Budget Act, the
full payable amount that has not been previously paid, or suspend the operation of the mandate
for the fiscal year for which the annual Budget Act is applicable in a manner prescribed by law,"
The attachment has been provided by Senior Assistant City Attorney Marshal. It is a legal
response to the Regional Water Quality Control Board from the City Attorney Association of
San Diego County,
Attachment: Legal Comments On The Board's Response To Comments Dated August 30,
2006 On Tentative Order NO. R9-2006-0011
cc: Sharon Marshall, Senior Assistant City Attorney
K\Public Works OpcfMions\NPDES\New Permit\NPDES Inlo Item - l2~]3-06.doc
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A TTACHMENT "A"
LEGAL COMMENTS ON THE BOARD'S RESPONSES TO
COMMENTS DATED AUGUST 30, 2006 ON TENTATIVE
ORDER NO, R9-2006-0011
I. INTRODUCTION
These comments are provided as a response to the Board's responses to comments issued
on August 30, 2006 regarding Tentative Order No, R9-2006-0011 ("Pelmit" or "Draft Permit"),
These comments were prepared by a sub-committee of legal counsel for the San Diego
copermittees and were reviewed by the members of the City Attorneys Association of San Diego
Comly, The comments focus on three issues: (1) unnmded state mandates; (2) compliance with
the California Environmental Quality Act in light of new legal authority; and (3) vague and
ambiguous permit terms,
n. THE BOARD'S ACTION CONSTITUTES AN UNFUNDED ST A TE
MANDATE
The Board's response to the copermittees' comment regarding unfunded state mandates
neither accurately characterizes the comment nor responds to it It is not, and never has been, the
copem1ittees' position that the Board lacks the legal authority to impose mandates which
"exceed" or are "more explicit" than the mandates or specillc requirements of federal law,
Rather, when the Board elects to use its discretion to impose mandates that are "more explicit"
than or "exceed" the requirements of federal law, it is electing to impose a state mandate within
the meaning of Calitornia Constitution, Art Xlii B, Section 6, The Board may impose such state
mandates; once imposed, however, the California Constitution requires that they mllst be funded
by the State, The copermittees ask the Board to acknowledge that, as it has done in the past and
as is implicit in draft finding E,9, portions of the permit "are more explicit" than or "exceed" the
specific requirements of federal law,
A. THE UNFUNDED STATE MANDATE PROVISIONS AND PROCESS
I, Unfunded State Mandate Provisions
Article Xlll B, Section 6 of the California Constitution provides that "[w]henever the
Legislature or any state agency mandates a new program or higher level of service on any local
govemment, the state shall provide a subvention of funds to reimburse that local government for
the costs of the program or increased level of service, , ," except in certain specific
circumstances, Through Proposition 1 A, approved by the voters in :2004, Section 6 was
amended to further provide that "for the 2005-06 fiscal year and every subsequent fiscal year, fOf
a mandate for which the costs of a local govenmlent claimant have been determined in a
preceding fiscal year to be payable by the state pursuant to law, the Legislature shall either
appropriate. in the annual Budget Act, the full payable amount that has not been previously paid,
or suspend the operation of the mandate for the Ilscal year for which the 31illual Budget Act is
applicable in a manner prescribed by law," The concern that prompted the voters to include
Section 6 in the Califomia Constitution "was the perceived attempt by the state to enact
SDADMIN\SHAGERTY\JJY0491
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legislation or adopt administrative orders creating programs 10 be administered by local agencies,
thereby tnmsferring to these agencies the liscal responsibility for providing services that the state
believed should be extended to the public" (Lon~ Beach lJnilied ScJlool District v, State of
CgJjlornia (1990) 225 Cal.App. 3J t 55,174.)
Nothing in constitutional or statutory law allows the slate to shin costs to local agencies
without reimbursement merely because those costs were imposed upon the stale by the federal
government. Hayes v, Conullission on State Mandates, II Cal. App, 4'" 1564, 1593 (1992), A
central purpose of the principle of state subvention is to prevent the state from shifting the cost of
govemment from itself to local agencies, City of Sacramento v, State of California, 50 CaL 3d
51,68 (1990), The courts have concluded that a state mandate exists where the state has a choice
in the manner of implementation of the federal mandate, County of Los Angeles v, Commission
on State Mandates, 32 CaL App, 4'" 805, 816 (1995), The focus is not simply that the obligation
arises out of a federal mandate, A determination of whether certain obligations (and therefore
costs) were imposed upon a local agency by a federal mandate must focus upon the local agency
which is ultimately forced to bear the costs and how those costs came to be imposed upon that
agency, Haves v, Commission on State Mandates, 11 CaL App, 4'" at 1594, If the state freely
chooses to impose the costs upon the local agency as a means of implementing a federal program
then the costs are the result of a reimbursable state mandate regardless of whether the costs were
imposed upon the state by the federal government Jd. As shown in the attached chart, and
supported by the December 2000 chart prepared by this Board, various provisions of the
currently dralied permit reveal an exercise of choice by this Board in the manU1er of
implementing federal law. Therefore, the requirements under this Draft Pernlit that are not
express federal mandates constitute mandates by the state subject to the subvention requirements,
A "new program" within the meaning of Section 6 is a program that carries out the
governmental function of providing services to the public, or a law that, to implement state
policy, imposes unique requirements on local governments and does not apply generally to all
residents and entities in the state. (County of Los Angeles v. Commission On State Mandates
(1995) 32 CaLApp, 4th 805, 816) A reimbursable "higher level of service" conceming an
existing "program" exists when a state law or executive order mandates not merely some change
that increases the cost of providing services, but an increase in the actual level or quality of
governmental services provided:' (Sail Diego Urlified School District v, Commission On State
Mandates (2004) 33 CaL4th 859, 877.) Both Section 6 and state law establish certain exceptions
to the state mandate provisions, three of which have some potential application to the Draft
Permit First, as a threshold matter, Government Code section 17516 currently purports to
exempt orders of the Regional Board from the state mandate provisions, The copermittees
contend that Government Code section 17516 is ullconstitutional, and Judge Victoria E, Chaney
of the Los Angeles County Superior Court, has, in fact, declared Section 17516 to be
unconstitutional in County of Los Angeles, et al v, State of California, et ai, Consolidated Case
Nos, B5087969 and B5089785, Judge Chaney's decision has beell appealed by the State to the
Court of AppeaL Second Appellate District, as Civil Case No, Bl8398L The matter has been
fully briefed, but as of the date of this conilllent no date for oral argument has yet been
scheduled, It is the copem1ittees position that GoveTlU11ent Code section 17516 is not a valid bar
to their unfunded state mandate claim,
S DA OM rN\SH i\(J ER TY\J39049, I
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Second. GovL'fI1ment Code section 17556(c) provides that a statute or executive order
shall not be considered to be" state mandate if the "statute or executive order imposes a
requirement that is mandated by a federal law or regulation and results in costs mandated by the
federal government. unless the statute or executive order mandates costs that exceed the mandate
in that federal law or regulation." The eopermittees acknowledge that much of the Draft Permit
imposes requirements mandated by a federal law or regulation, However, the copermittees
contend that many of the requirements of the Draft Permit exceed the mandates in the federal law
and regulations, lhe eopel1llittces have attempted to set forth in detail in Section B,2 below the
portions of the Drall Permit which they believe exceed the federal mandates, The copennittees
also contend that draft finding E,9 and the Board's own documents establish that a large
percentage (lip to 40%) of the requirements of the Draft Permit exceed the federal mandates,
Third, Government Code section 17556(d) provides that a state mandate will not be
considered to be "unfunded" if the local agency "has the authority to levy service charges, fees,
or assessments sufficient to pay for the mandated program or increased level of service!' The
copermittees' previous conUllent explained why this provision is not a bar to an unfunded state
mandates claim, The requirements of Proposition 218, as interpreted by cases such as Howard
Jarvis Taxpayers Ass'n v, City of Salinas (2002) 98 CaLAppAth 1351, severely limit the ability
of the copermittees to fund the mandates of the Draft Permit Certainly, the copermittees
authority, whatever it may be, is not "sufficient to pay for the mandated program or increased
level of service" It is for this reason that the copermittees raise the unfunded state mandate issue
- to tind a funding source for this state mandated program or increased level of service,
2, State Mandates Process
The Legislature has established an administrative process for seeking a determination
that a mandate is an unfunded state mandate within the meaning of Section 6. (Gov, Code SS
17500 et seq,) These procedures are the sole and exclusive procedure by which a local agency
may claim reimbursement for state-mandated costs, (Gov, Code S 17552,) The procedures
require the commencement of a test claim before the Commission on State Mandates, with
judicial review only being available after a final detenllination by the Commission. (Gov, Code
S 17553, 17559,)
Traditional concepts of exhaustion of administrative remedies apply to an unfunded state
mandate claim, (Tn-County Special Education Local Plan Area v. County of Tuoluf1me (2004)
123 CaLAppAth 563, 572.) For this reason, the copermittees would need to pursue a petition to
the State Board and then process a test claim with the Commission ifthe Regional Board does
not agree that portions of the Draft Permit "mandate costs which exceed the mandate in the
federal law"
B. THE DRAFT PERMIT IMPOSES UNFUNDED STATE MANDATES
UPON THE COPERMITTEES
I. Permit Language and Previous Board Statements,
SDADMIN\SHA(;ERTY\):>904<;l I
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The copcll11ittees contend that the language of the Draft Permit and previous Board
statelncnts demonstrate that portions of the Draft Pennit constitute unlill1ded state mandates,
First, Finding 1:,9 states that:
kequirements in this order that are more explicit than the tederal
storm water regulations in 40 CfR 12226 are prescribed in
accordance with the CW A section 402(p)(3 )(B)(iii) and are
necessary to meet the MEP standard,
In its response to the copermittees' comment on this finding E,9, the Board dismisses the
copennittees' comment as a misrepresentation of finding E.9, (See Responses to COlIunents, p,
59). While there may be a legitimate difference of opinion concerning the meaning offinding
E.9, the copennittees did not misrepresent the Finding in their comment. It is the copermittees'
view that when the Board elects to be "more explicit than the federal storm water regulations" it
is imposing state, rather than federal, mandates, While the Board's imposition of such "more
explicit" mandates may be based upon its belief that such additional mandates are needed to
meet the MEP standard, that cannot convert those additional mandates into mandates required by
federal law or regulations. Such an elastic view of federal law would mean that the federal
mandates are different in San Diego County than in Riverside County, in Texas than in New
Jersey, This is inconsistent with basic concepts oftederallaw,
The copem1ittees further contend that their reading of finding E,9 is consistent with prior
otTtcial documents of the Board, for example, in Attachment 4 to Agenda Item 5 of the Board's
December 13.2000 meeting, Conclusion 14 provides that:
Approximately 60% of the requirements in Tentative Order 2001-
02 are based solely on the 1990 federal NPDES Storm Water
Regulations, The remaining 40% of the requirements in the
Tentative Order "exceed the federal regulations," Requirements
that "exceed the federal regulations" are either more numerous,
more specific/detailed, or more stringent than the requirements in
the regulations.
At least one legal commentator has cited to Conclusion 14 to help explain the federal/state law
structure of the NPDES process and has noted that in certain circlUnstances, such as CEQA, "this
feature of going beyond the federal requirements is legally significant." (Minan, Municipal
Storm Water Permitting in California, (2003) 40 San Diego L Rev, 245, 251 and fn, 30,)
Again, the copermittees do not refer to this statement to show that the Board has
exceeded its legal authority. The copermittees understand that the Board believes that the
portions ofthc Draft Permit that "are more explicit" or, as the Board phrased the issue in 2000,
which "exceed the federal regulations," are needed to meet the MEP standard and are consistent
with the Board's authority, The copennittees simply disagree with the proposition that anything
the Board does in an attempt to achicvc the MEP standard constitutes a federal mandate, and ask
the Board to acknowledge, as it did in 2000, that portions of the Draft Permit are not mandated
by federal law,
S[)A [)MIN\SHAGElHY\3J904lf, I
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2, Specitic State Mandates,
Legal counsel for the copennittees have compared the mandates of the Draft Pennit with
the specific requirements of federal law and regulations_ as the Board did in December 2000. A
chart comparing the Draft Pellnit with the federal mandates is attached, As the chari
demonstrates, and as the Board's statltound in :2()()O, signitlcant portions of the Draft Pemlit
"exceed the federal regulations,"
C, THE BOARD'S RESPONSEIPOSITION IS UNTENABLE
It is the copermittees' position that the Board did not respond to the actual comment
made by the copelmittees regaTding unfunded state mandates, To the extent the Board
responded to the actual conunent made, the copermittees understand the Board's response to be:
(1) all the mandates of the Draft Permit are necessary to satisfy the MEp standard and, therefore,
are federal mandates; and (2) the mandates of the Draft Permit merely expand upon or elaborate
on Order No. 2001-01's pre-existing requirements, (See Responses to Comments, p, 59 and 65,)
The copennittees contend that both of these responses are inconsistent with the lmfunded state
mandate provisions,
First, as noted above, it cannot legally or togically be the case that anything the Board
mandates in an NPDES pemlit is by definition a federal mandate simply because all NPDES
permits must strive to achieve the MEP standard, Such an approach would mean that the
requirements offederal law and the federal regulations vary widely from region to region, state
to state,
Rather, the logical approach, used by the Board in 2000, is to compare the express
requirements offederal law and regulations (i,e" what must be in every NpDES permit) with the
requirements of each individual permit to determine those areas in which the Board has elected
to use its discretion to impose requirements that "exceed" or are "more explicit" than the federal
mandates, In short, not everything imposed under the umbrella of federal law is a federal
mandate,
Second, the additional requirements of the Draft Pennit constitute a "higher level of
service" concerning an existing "progran1." The courts have interpreted the phrase "higher level
of service" in a manner that forecloses the Board's "elaboration" response, By definition, the
iterative process mandated by the State Board is designed to increase the level or quality of the
storm water program, and the Draft Permit attempts to do just that Since the Board's
"elaborations" are intended to increase the actual level or quality of the copermittees' storm
water program, they constitute a "higher level of service" within the meaning of Section 6,
In both instances, the Board has exercised a choice in the manner in which it has imposed
many of the requirements under this pennie As such, those requirements shown in the state
mandate category of the attached chart shall be reimbursable,
Ill. FAILURE TO COMPLY WITH THE CALIFORNIA ENVIRONMENTAL
QUALITY ACT
The policy of the state is to ensure that action is taken to provide the people of this state
SD^OMIN\SHA(iERlY\.iY)(J4<) !
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with llotjust clean water but also clean air. qUality aesthetics, and naturaL scenic, and historic
environmental qualities, Public Resources ('ode sectioo 2100 I (b), I n accordance with the
requirements of the Calitllrnia Enviroomental Quality Act (CEQA), the Board has failed to
consider the physical effects on the environment from tho;:- permit. (See Public Resources Code
section :21080,) Environmental analysis should occur as "early as feasible in the planning
process to enable cnvironmental consideration to influence project program and design al1d yet
late enough to provide meaningful information for envirolUnental assessment." (CEQA
Guidelines section] 5004,)
In County of Los Angeles v, California State Water Resources Control Board, 2006
DJDAR 13567 the Court squarely addressed this issue, In County of Los Angeles, the Calitornia
State Water Resources Control Board (State Board) argued that issuance of a National Pollutant
Discharge Elimination Systems pernlit is exempt from CEQA under Water Code section 13389,
The Court disagreed in large part with the State Board, The Court opined that Water Code
section 13389 merely exempts the application of chapter 3 of CEQA, Nothing in state or federal
law exempts the wholesale application of CEQA to the National Pollutant Discharge Elimination
Systems permit. Therefore, the Board must engage in specified environmental assessments in
accordance with chapters I and 2.6 ofCEQA, Id, at 13574-13575,
In the present instance, Section E.lI of the permit states that the permit is exempt from
CEQA in accordance with Water Code section 13389, As such, no envirolUnental analysis has
been prepared to enable the copermittees or members of the public to assess the potential
environmental impacts of the permit.
Under the holding in County of Los Angeles v, California State Water Resources Control
Board, specilled environmental assessment must occur betore this permit is approved, Not only
must the potential environmental effects of the permit be assessed, but the results of an
environmental assessment may influence how the pennit is dralted or implemented, Therefore,
to comport with the requirements of CEQA and the recent County of Los Angeles decision, the
permit's potential environmental effects should be assessed and made publicly available for
comment, prior to this Board's action on the Dralt Pernlit itself
IV, THE DRAFT PERMIT'S TERMS ARE INHERENTLY V AGUE AND AMBIGUOUS
The Copennittees reassert their claim that the permit contains many provisions that are
inherently vague or ambiguous, Consequently, the Copermittees cannot discern how to comply
with the permit's terms, nor can the Board enforce its vague provisions. In certain circumstances,
the copennittees will not know whether their conduct is necessarily proscribed, In other
instances, the terms of the pemlit fail to provide an ascertainable standard of conduct Given the
vagueness of certain provisions, Ccopermittees could be subject to arbitrary enforcement tor
failing to comply with provisions that lack sufficient specificity 10 permit reasonable compliancc.
For example, Sections A and B set forth the general prohibitions under statc or federal
law pertaining to discharges, However, subsequent sections, such as Sections D (pagc 15), D,1
(page 15-16),0,2 (page 26), 03 (page :29), 04 (page 38), E,:2 (page 43) and F (page 46) still
contain paraphrases of the prohibitions in various fom1s, Given the inconsistencics between the
prohibitions in Sections A and B and the differing versions throughout the permit, the
SDAlJM1N\SH^GFRTY\3:{(j04"J I
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copermittccs cannot detell11inc if the teIlns in Sections 0 through F were intended to prohibit the
same conduct as in Scctions A and B or expand on those prohibitions, If intcnded to prohibit the
same wnduct, thcre is no reason or benetlt in restating the prohibitions, More importantly,
restating the prohibitions using ditT('-rcnt languagL: creates ambiguity. On the other hand, if
Sections lJ through r are intended to prohibit di fferent conduct, no state or federal authorization
has been specitled. See discussion in Section jj above,
V, CONCLUSION
The Copermittees' unfunded state mandate comment is not intended to be an attack on
the Board's legal authority, Tbe copemlittees merely ask that the Board acknowledge, as the
copermittees believe the Board has done in the past, that some of the mandates in the Draft
Penuit go beyond what the federal law requires, The Copermittees understand and acknowledge
that the Board is free to go beyond federal law and that very good reasons may exist to do so,
However, when the Board imposes mandates not required by federal law it triggers the state's
unfunded state mandates provisions, It is the Copelmittees desire that, through the unfunded
state mandates process, they may obtain the funding needed to pay for these mandates.
The Copell11ittees ti.u1her request that the Board perfom1 the necessary environmental
analysis as required under the California Environmental Quality Act While the stated goals of
the Clean Water Act and the Porter-Cologne Act are to improve and protect our waters, the
Legislature has declared that it is also their policy to take all action necessary to advance the
goals of clean air, enjoyment of aesthetic, natural, scenic and historic environmental qualities,
As such, this permit must be evaluated under the requirements ofCEQA to ensure that all
policies of the state are considered when this Board takes its action,
Finally, it is the Copennittess' request that the Board promptly eliminate and/or
otherwise clarify the inherently vague and ambiguous language found in the Draft Permit so as to
allow the Copermittees to implement its provisions, once funding has been found, in a clear and
expeditious manner. The Board's failure to do so will only result in further delays due to the
Copennittees' inability to resolve those inconsistencies lound in the language of the Draft Permit
as described above,
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k~J*If1tfGU/ If
I nformationa[ 9vfemorandum
-'
January 11,2007
File No, 0780-70-KY-181
TO: The Honorable Mayor and City Council
VIA: Jim Thomson, Interim City Manager
FROM: Dave Byers, Director of Public Works Operations
SUBJECT: Pending Adoption of New Five-Year National Pollutant Discharge Elimination
System (NPDES) Municipal Stormwater Penl1it by the San Diego Regional
Water Quality Control Board (Regional Board)
The purpose of this memorandum is to update City Council on the pending adoption of the new
five-year NPDES Municipal Permit At its scheduled meeting of December 13, 2006, the
Regional Board had planned to consider the adoption of a new five-year permit regulating the
discharge of urban-generated runoff within San Diego County to receiving waters via dry
weather and wet weather t10ws through the municipal storm water conveyance system (i,e.,
streets, gutters, pipes, and open channels), However, the meeting was canceled due to lack of a
quorum, The permit will now be considered at the Regional Board meeting scheduled for
January 24, 2007,
Last minute revisions to the permit with regard to implementation of "Low Impact
Development" ("LID") principles for new development and redevelopment projects, as well as
storm drainage system projects, have been made at the request of environmental advocacy
groups, The Regional Board released these revisions on December 4, 2006, without the
opportunity for full public review and comment Concurrent with the cancellation notice for the
December 13, 2006 meeting, the Regional Board announced that they would accept written
comments on the latest revised language included in the draft permit Written comments were to
be submitted to the Regional Board before 5:00 p.m., January 2, 2007, Staff prepared and
submitted comments within the specified comment period (Attachment A), The County of San
Diego also submitted comments on behalf of all Copermittees (Attachment B).
During the meeting of January 24,2007, the Regional Board will hear oral public testimony and
consider adoption of the new permit Representatives from Elected Officials, City Managers,
and City Attorneys plan to speak during the hearing and put forward their concerns regarding the
funding for the implementation of permit's additional requirements, and the fact that they
consider some of the major requirements fall under the unfunded State mandates category and
need to be reimbursed by the State if they remain in the final permit
Attachments
K:\Public Works Operatiolls\NPDES\New PeI1llit\NPDES Info Item - OJ-ll-07doc
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