San Francisco Baykeeper v. City Of San Jose et al

Filing 51

ORDER APPROVING 50 CONSENT DECREE. Signed by Judge Beth Labson Freeman on 8/11/2016. (blflc3S, COURT STAFF) (Filed on 8/11/2016)

RICHARD DOYLE, City Attorney (88625)
NORA FRIMANN, Assistant City Attorney (93249)
2 LEAH S. GOLDBERG, Senior Deputy City Attorney (157278)
Office of the City Attorney
200 East Santa Clara Street, 16th Floor
3
San Jose, California 95113-1905
Telephone Number: [phone]
4 Facsimile Number: [phone]
E-Mail Address: [e-mail]
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Attorneys for Defendant CITY OF SAN JOS£
Daniel Cooper (Bar No. 153576)
Drevet Hunt (Bar No. 240487)
LAWYERS FOR CLEAN WATER, INC.
1004-A O'Reilly Avenue
San Francisco, California 94129
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

,

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George Torgun (Bar No. 222085)
Erica Maharg (Bar No. 279396)
SAN FRANCISCO BAYKEEPER
1736 Franklin Street, Suite 800
Oakland, California 94612
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

18 Attorneys for Plaintiff
SAN FRANCISCO BAYKEEPER
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO BAYKEEPER, a California
non-profit corporation,

Civil Case No.: 15-CV-00642-BLF
[PROPOSED] CONSENT DECREE

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Plaintiff,
v.

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CITY OF SAN JOSE, a municipality, et al.,

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Defendants.

1

CONSENT DECREE

2

The following Consent Decree is entered into by and between Plaintiff San

3

Francisco Baykeeper ("Plaintiff" or "Baykeeper") and Defendant City of San Jose, a

4 municipal corporation ("Defendant," "City," or "San Jose"). The entities entering into this
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Consent Decree are each an individual "Party" and collectively the "Parties."
WHEREAS, Baykeeper is a 501(c)(3) non-profit public benefit corporation
dedicated to, among other things, the protection and enhancement of the water quality of
the San Francisco Bay;
WHEREAS, the City of San Jose is a municipal corporation established by
California state law, with Departments of Transportation, Public Works, and
Environmental Services;
WHEREAS, the City of San Jose is an owner and operator of a Municipal

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Separate Storm Sewer System that serves the City of San Jose ("San Jose MS4");

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WHEREAS, the City of San Jose is an owner and operator of a separate sewage

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collection system that serves the City of San Jose that is not a part of the San Jose MS4

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("San Jose Collection System");
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WHEREAS, the San Jose MS4 is regulated by the Federal Water Pollution
Control Act, 33 U.S.C. § 1251 et seq. ("Clean Water Act" or "CWA"), and is permitted
under Municipal Regional Stormwater NPDES Permit, NPDES Permit No. CAS612008,
Order No. R2-2015-0049, California Regional Water Quality Control Board, San

20 Francisco Bay Region ("MS4 Permit," "MRP," or "Permit");
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WHEREAS, the approach to demonstrating compliance with trash reduction
requirements is outlined in the MRP;
WHEREAS, on November 24, 2014, Baykeeper issued a sixty (60) day notice

24 letter ("Notice Letter") to Defendant. The Notice Letter informed Defendant of
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Baykeeper's intent to file suit against it for alleged Clean Water Act violations of the MS4

26 Permit, including alleged unlawful discharges of pollutants from the San Jose MS4 and
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alleged sewage discharges to the San Jose MS4 from the San Jose Collection System;

1

WHEREAS, on February 11, 2015, Baykeeper filed its complaint against San

2 Jose in the United States District Court for the Northern District of California, Civil Case
3

No. 15-CV-00642-BLF (hereinafter, "Complaint");

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WHEREAS, Defendant denies Baykeeper's allegations in the Complaint;

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WHEREAS, the Parties, through their authorized representatives and without

6 either adjudication of the Complaint's claims or admission by San Jose of any alleged
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violation or other wrongdoing, have chosen to resolve this action through settlement to
avoid the costs and uncertainties of further litigation;
WHEREAS, the Parties intend for this Consent Decree be consistent with
regulatory requirements; and
WHEREAS, all actions taken by San Jose pursuant to this Consent Decree will be
made in compliance with all applicable federal, state and local rules and regulations.

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NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE PARTIES

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AND ADJUDGED, ORDERED, AND DECREED BY THE COURT AS FOLLOWS:

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1.

The Court has jurisdiction over the subject matter of this Action pursuant to

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Section 505(a)(1)(A) of the Clean Water Act, 33 U.S.C. § 1365(a)(1)(A).
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2.

Venue is appropriate in the Northern District pursuant to Section 505(c)(1)

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of the Clean Water Act, 33 U.S.C. § 1365(c)(1).

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3.

The Complaint states claims upon which relief may be granted pursuant to

Section 505 of the Clean Water Act, 33 U.S.C. § 1365.
4.

Plaintiff has standing to bring this action.

5.

The Court will retain jurisdiction over this matter for purposes of enforcing

22 the terms of this Consent Decree for the life of the Consent Decree, or as long thereafter
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as is necessary for the Court to resolve any motion to enforce this Consent Decree.

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I.
6.

DEFINITIONS

Unless otherwise expressly defined herein, terms used in this Consent

26 Decree that are defined in the Clean Water Act or in regulations, or in rules promulgated
27 under the Clean Water Act, have the meaning assigned to them in the applicable

28

1

statutes, regulations, or rules. Whenever terms listed below are used in this Consent

2 Decree, the following definitions apply:
3

a.

"Annual Report" means a consolidated report containing reporting

4 obligations in the MRP and this Consent Decree and will be submitted to Baykeeper on
5

6
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or before October 30,h of any Year this Consent Decree is in effect.
b.

"CCTV" means closed-circuit television.

c.

"Consent Decree" means this Consent Decree, and any exhibits and

appendices incorporated by reference to this Consent Decree.
d.

"Critical Bacteria Storm" means the 90th percentile 24-hour wet

weather day when bacteria receiving water limits apply. For San Jose, the Critical
Bacteria Storm equates to a 24-hour storm event of 0.46 inches.

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e.

"Day" means a calendar day. In computing any period of time under

this Consent Decree, where the last day of such period is a Saturday, Sunday, or

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Federal, State, or City Holiday, the period runs until the close of business on the next

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day that is not a Saturday, Sunday, or Federal, State, or City Holiday.

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f.

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"Dry Season" means the season from May 1 to September 30 of the

same calendar Year.
g.

"FIB" means Fecal Indicator Bacteria.

h.

"Full Trash Capture System" means any single device or series of

devices that traps all particles retained by a five millimeter mesh screen and has a

20 design treatment capacity of not less than the peak flow rate resulting from a one-Year,
21 one-hour storm in the sub-drainage area, which also includes a trash reservoir large
22 enough to contain a reasonable amount of trash safely without overflowing trash into the
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overflow outlet between maintenance events.
i.

"Gravity Sewer" means pipes within San Jose's Collection System

that convey wastewater by gravity flow.
j.

.

"Infeasible" means cannot be accomplished due to soil type,

27 groundwater contamination, physical limitations, or engineering impossibility. Infeasible
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1 shall not mean lack of funding.

2
3

k.

"Low Impact Development" means a Treatment Control that uses or

mimics natural processes that result in the infiltration, evapotranspiration, biotreatment or

4 use of stormwater in order to protect water quality and associated habitat.
5

I.

"MS4" means "a conveyance or system of conveyances (including

6 roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches,
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man-made channels, or storm drains)" owned or operated by a State, city, or town that is
"designed or used for collecting or conveying storm water" and "that discharges to waters
of the United States." See 40 C.F.R. § 122.26(b)(8); see also id. § 122.26(b)(18).
m.

"Multi-Benefit Project" means a Treatment Control project designed

to achieve any of the benefits set forth in section 10562, subdivision (d) of the Water
Code. Examples include projects designed to infiltrate, recharge, biotreat, or store

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Stormwater; develop or enhance habitat and open space through Stormwater and non-

13
Stormwater management; and/or reduce Stormwater and non-Stormwater runoff volume.

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n.

"San Jose Collection System" is comprised of the City of San Jose's

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sanitary sewer collection system, including the sewer pipes and lines, manholes or
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maintenance holes, and all appurtenances thereto owned by San Jose that are used to
convey wastewater generated by residential, commercial, and industrial sources to the
Water Pollution Control Plant.
o.

"Sanitary Sewer Overflow" or "SSO" means any overflow, spill,

20 release, discharge, or diversion of untreated or partially treated wastewater from the San
21 Jose Collection System. SSOs include: (1) overflows or releases of untreated or
22 partially treated wastewater that reach waters of the United States; (2) overflows or
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releases of untreated or partially treated wastewater that do not reach waters of the

24 United States; and (3) wastewater backups into buildings and on private property that
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are caused by blockages or flow conditions within the publicly owned portion of the San

26 Jose Collection System.
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p.

"Sewer Line Segment" means any section of publicly owned sewer

1

line or pipe located between: (1) two manholes/maintenance holes; (2) a pump station

2 and a manhole/maintenance hole; (3) a pump station or a manhole/maintenance hole
3

and a headworks structure; or (4) a sewer line or pipe otherwise identifiable as a discrete

4 section.
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q.

"Stormwater" has the meaning set forth in 40 C.F.R. §

6 122.26(b)(13).
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r.

"Trash" consists of litter and particles of litter. Litter means all

improperly discarded waste material, including, but not limited to, convenience food,
beverage, and other product packages or containers constructed of steel, aluminum,
glass, paper, plastic, and other natural and synthetic materials, thrown or deposited on
the lands and waters of the State, but not including the properly discarded waste of the
primary processing of agriculture, mining, logging, sawmilling, or manufacturing.

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s.

"Trash Hot Spots" means locations of high trash density along

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receiving water bodies, selected pursuant to Provision C.10.c of the MS4 Permit.

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t.

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"Treatment Controls" means best management practices to either:

(1) remove or biotreat pollutants and/or solids from Stormwater runoff, wastewater, or
effluent; or (2) capture, infiltrate, reuse, or biotreat Stormwater runoff, wastewater, or
effluent. Treatment Controls include Full Trash Capture Systems, Low Impact
Development Controls and Multi-Benefit Projects.
u.

"Very High, High, or Moderate Trash Generation Areas" are areas

20 that are considered to generate more than five (5) gallons of trash per acre per Year and
21 has the meaning set forth in the MS4 Permit.

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v.

"Waters of the United States" has the meaning as set forth in 40

C.F.R. § 122.2 and as interpreted in applicable case law.
w.

"Wet Weather" means a time period within 48 hours after a storm

event in excess of 0.2 inches in depth.
x.

"Year" means calendar year, unless otherwise specified.

II.

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7.

EFFECT OF CONSENT DECREE

Notwithstanding the general objectives of this Consent Decree, Baykeeper

does not, by its consent to this Consent Decree, warrant or aver in any manner that San

4 Jose's compliance with this Consent Decree will constitute or result in compliance with
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any federal, state, or local law or regulation. This Consent Decree is neither a permit nor

6 a modification of existing permits under any federal, state, or local law and in no way
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relieves San Jose of its responsibilities to comply with all applicable federal, state, and
local laws and regulations.
8.

The Parties enter into this Consent Decree for the purpose of avoiding

costly litigation. Nothing in this Consent Decree will be construed as an admission by
San Jose, and San Jose does not intend to imply any admission as to any fact, finding,

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issue of law, or violation of law, nor will compliance with this Consent Decree be

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construed as an admission by San Jose of any fact, finding, conclusion, issue of law, or

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violation of law.

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III.

APPLICABILITY

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9.

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The provisions of this Consent Decree apply to and bind the Parties,

including any successors or assigns. The Parties certify that their undersigned
representatives are fully authorized to enter into this Consent Decree, to execute it on
behalf of the Parties, and to legally bind the Parties to its terms.
10.

The Parties agree to be bound by this Consent Decree and not to contest

20 its validity in any subsequent proceeding to implement or enforce its terms.
21

11.

No change in ownership or corporate or other legal status of San Jose or

22 any transfer of San Jose's assets or liabilities will in any way alter the responsibilities of
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San Jose, or any of its successors or assigns, under this Consent Decree.
12.

In any action to enforce this Consent Decree, San Jose will not raise as a

defense the failure by any of its agents, servants, contractors, employees, and

26 successors or assigns to take actions necessary to comply with this Consent Decree.
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IV.

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13.

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The Effective Date of this Consent Decree will be the date that the Court

enters the final Consent Decree.
14.

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5

AGENCY REVIEW, EFFECTIVE DATE AND TERMINATION DATE

Plaintiff shall: (a) submit this Consent Decree by certified mail to the

United States Department of Justice and the Environmental Protection Agency

6 (collectively, "Federal Agencies") within three (3) business days of the Parties' execution
7

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of this Consent Decree for agency review consistent with 40 C.F.R. § 135.5; and (b)
lodge this (proposed) Consent Decree with the District Court. In the event the Federal
Agencies comment negatively on the provisions of this Consent Decree, the Parties
agree to meet and confer to resolve the issues raised by the Federal Agencies. After the
Federal Agencies have either completed their review of this Consent Decree without
objection or the 45-day agency review period has expired, whichever is earlier, Plaintiff

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shall promptly request that the District Court enter this Consent Decree, and within five

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(5) days of entry of the Consent Decree, move to dismiss the Complaint and all claims

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therein with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2).

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15.

This Consent Decree will terminate ten (10) Years from the Effective Date

("Termination Date").

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V. TRASH REDUCTION PROGRAM
A.

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Trash Reduction Requirements
16.

waters in accordance with the following schedule:

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a. 70% by July 1,2017; and

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San Jose shall reduce trash discharges from 2009 levels to receiving

b. 80% by July 1, 2019.
B.

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Compliance with the MS4 Permit
17.

San Jose is required to comply with the requirements of Section C.10 of

the MS4 Permit.
18.

If San Jose revises its Long-Term Trash Reduction Plan at any time during

the term of this Consent Decree, San Jose will provide the revised Long-Term Trash

1 Reduction Plan to Baykeeper no later than thirty (30) days after submission of the

2 revision.
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4
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C.

Receiving Water Monitoring Program
19.

San Jose shall develop and implement a receiving water monitoring

program designed to answer the following questions:
a.

6

Have trash control actions effectively prevented trash within San

7 Jose's jurisdiction from discharging into receiving water(s)?
b.

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Is trash present in receiving water(s), including transport from one

9 receiving water to another, e.g., from a creek to a San Francisco Bay segment, at levels

10 that may cause adverse water quality impacts?
c.

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MS4 pathways and non-MS4 pathways?
d.

What is the characterization of trash types in these receiving

e.

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What proportions of trash found in these receiving waters are from

Has the amount of trash discharged from the San Jose MS4

waters?

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decreased from the previous year and over time? If so, by how much? If not, why?
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f.

Has the amount of trash at the Trash Hot Spots decreased from the

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previous year?

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20.

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The receiving water monitoring program shall include direct measurements

or observations of trash in receiving water(s), or in scenarios where direct measurements
or observations are not feasible, surrogates for trash in receiving water(s), such as
measurement of trash on stream banks or shorelines.
21.

San Jose will develop the Receiving Water Monitoring Program which

includes criteria for designating which types of trash are associated with non-MS4
pathways, including criteria based on: (a) trash size (i.e., too large for discharge through
an MS4 system), (b) location (i.e., proximity to homeless encampment or illegal dumping

26 site), and (c) type of material. San Jos6 shall provide the Receiving Water Monitoring
27 Program to Baykeeper for comment within sixty (60) days of the Effective Date.
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1

Baykeeper will submit comments, if any, on the Receiving Water Monitoring Program

2 within thirty (30) days of receipt. San Jose will consider Baykeeper's comments in good
3

faith within thirty (30) days of receipt, and will either incorporate those comments into the

4

criteria or explain in writing why those comments were not accepted. Disputes as to the

5

adequacy of the Receiving Water Monitoring Program shall be resolved through the

6 Dispute Resolution provisions in Section XII below.
22.

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9

Receiving water monitoring will be conducted once annually during the Dry

Season at the six (6) Trash Hot Spots identified in Table 1. Receiving water monitoring
shall begin during the 2017 Dry Season.
Table 1. Receiving Water Monitoring Locations at Designated Trash Hot Spots

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Trash Hot Spot

1)

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SJC02 Coyote Creek at 101 (Watson Park)

2)

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SJC08 Coyote Creek at Roosevelt Park

3)

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SJC25a Coyote Creek at Singleton Rd.

4)

SJC23 Confluence of Guadalupe River at W. Santa Clara St.

5)

SJC27 Guadalupe River upstream of Woz Way to Interstate 280

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6)

SJC31 Guadalupe River at Alma

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23.

San Jose shall collect and record the following data for each monitoring

16 event:
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a.

Tons and estimated volume of trash removed;

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b.

Types of trash removed (trash characterization); and

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c.

Estimated proportion of trash from MS4 and non-MS4 sources.

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24.

San Jose shall sort and characterize trash removed from each of the seven

21 (7) monitoring sites. Information will be collected using the most current Santa Clara
22 Valley Urban Runoff Pollution Prevention Program ("SCVURPPP") "Trash Hot Spot
23
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25

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Cleanup Data Collection Form."
25.

Based on this monitoring data, San Jose shall annually conduct an analysis

to answer the questions set out in Paragraph 19 above. This analysis will be included in
the Annual Report.
26.

San Jose shall retain documentation of the Receiving Water Monitoring

Program, including the trash condition before and after the cleanup of the entire Trash

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1

Hot Spot using photo documentation with a minimum of one (1) photo per hundred feet

2 of Trash Hot Spot length. Photo documentation will be completed in accordance with the
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most current SCVURPPP "Photograph Documentation Protocol for Creek and Shoreline

4 Trash Hot Spots" protocol.
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D.

27.

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7

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San Jose shall, in addition to the 1,328 acres currently in place, install and

maintain Full Trash Capture Systems sufficient to treat runoff from 3,000 acres of Very
High, High, or Moderate Trash Generation Areas. The Full Trash Capture Systems shall
be fully installed and operational by October 1, 2017.
28.

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Full Capture Systems

San Jose will maintain the Full Trash Capture Systems in accordance with

Section C.IO.b.i of the MS4 Permit. If San Jose reduces the frequency of inspections,
San Jose shall report such reduction in that Year's Annual Report and provide

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supporting documentation to Baykeeper. Disputes shall be resolved through the Dispute

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Resolution provisions in Section XII below.

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29.

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Maintenance shall include visual inspection and removal of all accumulated

trash when the device is plugged or is greater than fifty (50) percent full of accumulated
trash. If a Full Trash Capture System requires removal of accumulated trash, San Jose
will inspect the device again within thirty (30) days after the accumulated trash was
removed. If the device is plugged or is greater than fifty (50) percent full of accumulated
trash at that time, San Jose will remove the accumulated trash from Full Trash Capture

20 System again and develop a device-specific inspection and maintenance plan to ensure
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the device is neither plugged nor more than half full of trash at the next maintenance

22 event.
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E.

Trash Hot Spots
30.

San Jose will clean Trash Hot Spots to a level of "no visual impact" at least

one time per Year. This entails removal of all trash, debris, and historic derelict material

26 (e.g., tires, barrels and shopping carts) in excess of two (2) inches in diameter. Trash
27 Hot Spots must be at least 100 yards of creek length or 200 yards of shoreline length.
28

1

2
3

San Jose agrees to maintain a total number of thirty-two (32) Trash Hot Spots.
31.

With the exception of the following modifications, San Jose will maintain

the existing Trash Hot Spots, as identified by the SCVURPPP in Trash Hot Spot

4 Selection: Final Report, submitted to the California Regional Water Quality Control
5

Board, San Francisco Bay Region ("Regional Water Board") on June 29, 2010, and:
a.

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10

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32.

Add Coyote Creek downstream of East Capital Expressway;

d.

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Add Coyote Creek at Berryessa Road;

c.

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Discontinue SJC01, SJC17, and SJC20;

b.

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Add Coyote Creek at Story and Senter Road.

San Jose will modify the existing Trash Hot Spots to include the Trash Hot

Spots identified in Paragraph 31 within ninety (90) days of the Effective Date of this
Consent Decree.

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33.

San Jose will annually assess Trash Hot Spot locations and may select

13
new Trash Hot Spot locations if, based on cleaning and reporting as required in this

14
Section, existing Trash Hot Spot locations are no longer Trash Hot Spots or if other

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locations may better align with trash management areas. San Jose will consult with
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Baykeeper on sites proposed for addition to or removal from the Trash Hot Spot list.
F. Trash Program Reporting and Action Plan
34.

San Jose shall provide the information required by the MS4 Permit,

sections C.IO.b.i.b, C.10.c.iii, and C.10.f, to Baykeeper as part of its Annual Report
pursuant to this Consent Decree, except that each Annual Report shall include an
updated trash generation area map or maps, which include trash management areas,
including the locations and associated drainage areas of full trash capture systems and
other trash control actions, and the locations of Trash Hot Spots, with highlights or other
indication of any revisions or changes from the previous year map(s).
35.

In the event that San Jose is obligated to prepare a Trash Action Plan

under Section C.IO.f.v of the MS4 Permit, San Jose will provide a copy of the Trash
Action Plan to Baykeeper prior to submission. Baykeeper will review the Trash Action

1

Plan and must submit comments, if any, on the Trash Action Plan within fifteen (15) days

2 of receipt. San Jose will consider Baykeeper's comments in good faith within thirty (30)
3 days from receipt of Baykeeper's comments. San Jose will either incorporate those
4 comments into the Trash Action Plan or explain in writing why those comments were not
5

accepted. Disputes as to the adequacy of a Trash Action Plan shall be resolved through

6 the Dispute Resolution provisions in Section XII below.
7

36.

For any trash control action that involves public education, including trash

8 reduction marketing campaigns, San Jose will employ its best efforts to positively credit
9 the partnership between Baykeeper and San Jose and offer Baykeeper the opportunity
10

to co-brand any media and marketing materials, if appropriate.
VI.

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37.

FECAL INDICATOR BACTERIA ASSESSMENT PROGRAM

Within 120 days of the Effective Date, San Jose shall develop and submit

13

to Baykeeper a monitoring plan to characterize Wet Weather concentrations and source

14

types of fecal indicator bacteria ("FIB") from designated sites ("FIB Monitoring Plan").

15

Data produced pursuant to the FIB Monitoring Plan shall not be utilized to determine

16 compliance with FIB load reduction requirements.
17

38.

The purpose of the FIB Monitoring Plan is to address the following

18 questions:
a.

19

What are the wet weather in-stream FIB concentrations upstream of

20 the San Jose MS4?
b.

21

What are the wet weather in-stream FIB concentrations within

22 reaches influenced by the San Jose MS4?
23

39.

To address Paragraph 38.a above, the City will collect samples from

24 receiving waters during fifteen (15) wet weather events within the first five (5) Years after
25 the Effective Date from two (2) in-stream monitoring locations located immediately

26 upstream of the influence of the San Jose MS4: one (1) location within Coyote Creek, at
27 Metcalf Park (37.23514N, -121.76194W); and one (1) location in Los Gatos Creek at
28

1

Hamilton Avenue (37.29444N, -121.93312W). Samples will be analyzed for, at a

2 minimum, E.coli and Enterococci.
3

40.

To address Paragraph 38.b above, the City will collect samples from

4 receiving waters during fifteen (15) wet weather events within the first five (5) Years after
5

the Effective Date from six (6) in-stream monitoring locations located in reaches

6 influenced by the San Jose MS4: two (2) locations within Coyote Creek, two (2) locations
7 within the Guadalupe River, one (1) location within Los Gatos Creek, and one (1)

8 location within Penitencia Creek. Sampling locations will be identified in the FIB
9 Monitoring Plan and will be located such that they represent well-mixed areas
10 downstream of MS4 outfalls draining urban areas. Samples will be analyzed for, at a
11

12
13

minimum, E.coli and Enterococci.
41.

The FIB Monitoring Plan shall include a section on quality assurance

protocols to ensure validity and quality of the data collected, in general accordance with

14 EPA Guidance for Quality Assurance Project Plans (EPA QA/G-5), December 2002,
15

EPA/240/R-02/009. This section shall also identify the laboratory or laboratories to

16 conduct the analyses and describe the methods for sample preparation and shipping.
17
18

42.

Baykeeper will review the FIB Monitoring Plan and submit comments, if

any, within thirty (30) days of receipt. San Jose shall consider Baykeeper's comments in

19 good faith, and shall have thirty (30) days from receipt of Baykeeper's comments to
20 either incorporate those comments into the FIB Monitoring Plan or explain in writing why
21 those comments were not accepted. Disputes as to the adequacy of the FIB Monitoring

22 Plan are to be resolved via Dispute Resolution as set out in Section XII below.
23

43.

All monitoring results generated for the prior Year shall be summarized,

24 with corresponding original lab results, and submitted to Baykeeper by October 30th of
25

26
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each of the five (5) sampling years.

VII.

1

2

A.

FIB Load Reduction Standard
44.

3

FIB Load Reduction and Comprehensive Load Reduction Plan

The FIB load reduction standard shall be achieved through reductions in

4 flow from each sub-watershed of the San Jose MS4 to receiving waters, equivalent to full
5

retention of the Critical Bacteria Storm ("FIB Load Reduction Standard"). The Critical

6 Bacteria Storm shall be based upon a 22% exceedance rate. Following the methods
7 utilized in the Enhanced Watershed Management Program forBallona Creek Watershed

8 and Appendix I of the Total Maximum Daily Loads for Indicator Bacteria, Project I 9 Twenty Beaches and Creeks in the San Diego Region (Including Tecolote Creek):
10

Methodology for Calculating TMDLs for Impaired Beaches and Creeks and Allocating to

11 Sources, a 22% exceedance rate correlates to a Critical Bacteria Storm of 0.46 inches,
12 based on historic precipitation data for San Jose (NOAA National Climactic Data Center
13

http://www.ncdc.noaa.gov/cdo-web/precipation data record for the San Jose, CA station

14 GHCND: USC0047821, January 1, 1950 to September 30, 2007), which is approximately
15

16
17

equivalent to the 82nd percentile 24-hour storm.
B.

Reasonable Assurance Analysis and Comprehensive Load Reduction Plan
45.

San Jose shall develop and implement a Comprehensive Load Reduction

18

Plan ("CLRP") to meet the FIB Load Reduction Standard, as defined in Paragraph 44 by

19

October 1, 2050. The CLRP shall be developed in a manner consistent with the

20

Guidelines for Conducting Reasonable Assurance Analysis in a Watershed

21

Management Program, Including an Enhanced Watershed Management Program,

22

developed pursuant to the Los Angeles County MS4 Permit, Order No. R4-2012-0175

23

("eWMP Guidance").

24

46.

The CLRP shall include a Reasonable Assurance Analysis ("RAA") and

25

shall be supported by a process-based Best Management Practice ("BMP")

26

Performance Model referenced in Table 1 of the eWMP Guidance, to demonstrate that

27

implementation of prescribed structural and non-structural BMPs shall, with a

28

1

reasonable level of assurance, achieve the FIB Load Reduction Standard by October 1,

2

2050.

3

47.

The CLRP shall include a Maintenance and Monitoring Plan ("MMP"), to

4 assure maintenance of BMPs and implementation of a monitoring program sufficient to
5 determine compliance with the FIB Load Reduction Standard. The monitoring program

6 shall not be required to include end of pipe monitoring.
7

48.

The CLRP shall include detailed description of each regional Multi-Benefit

8 Project, consistent with Section D.l.a of the eWMP Guidance. Description of other
9 Treatment Controls deemed necessary to achieve the FIB Load Reduction Standard
10 shall be described consistent with Sections D.l.a or D.l.b of the eWMP Guidance. For
11 the purposes of modeling pollutant load and flow reductions, data on performance of
12 regional Multi-Benefit Projects and other Treatment Controls shall be drawn only from
13

peer-reviewed sources, including but not limited to sources such as the International

14 Stormwater BMP Database (available at http://www.bmpdatabase.org/).
15

49.

The CLRP will prioritize site selection of Multi-Benefit Projects and Low

16 Impact Development installations to achieve applicable water quality-based effluent
17 limitations, waste load allocations, and receiving water limitations associated with trash,
18 polychlorinated biphenyls ("PCBs"), mercury, and other pollutants, to the extent
19 appropriate. For the purposes of RAA modeling, FIB shall serve as the "limiting

20 pollutant," pursuant to the eWMP Guidance.
21

50.

The CLRP shall include a schedule and estimated budget of

22 implementation designed to achieve compliance with the schedule for implementation,
23

established in Paragraph 53 of this Consent Decree. The budget and schedule shall be

24 sufficiently robust to support a financial analysis to evaluate funding needs.
25

51.

Baykeeper shall review the draft CLRP and submit comments, if any, within

26 thirty (30) days of receipt, consistent with the schedule established in Paragraph 53 of
27 this Consent Decree. San Jose shall consider Baykeeper's comments in good faith, and
28

1

shall have thirty (30) days from receipt of Baykeeper's comments to either incorporate

2 those comments into the CLRP or explain in writing why those comments were not
3

accepted. Disputes as to the acceptance of Baykeeper's comments on the CLRP are to

4 be resolved via Dispute Resolution as set out in Section XII below.
52.

5

Upon completion of the final CLRP, San Jose must perform assessments

6 of their best management practices every two (2) Years. Reported outcomes must be
7 expressly compared to the FIB Reduction Standard of this Consent Decree.

8 Performance assessment reporting must include:
a.

The status of completion of proposed structural treatment control

11

b.

The status of implementation of nonstructural BMPs;

12

c.

Information related to the validity of the RAA performed in support of

9

10 BMPs;

13

the CLRP and any underlying assumptions and risks; and
d.

14
15

16

implementation of the CLRP on receiving water quality.
C.

19

20

Subject to, and contingent upon, the City receiving sufficient new revenue

sources as set forth in Section D, Paragraphs 54-56 below, implementation of milestones
and compliance with the FIB Load Reduction Standard and implementation of the CLRP
shall be completed on the following schedule:
a.

21

22

Implementation Schedule
53.

17
18

The results of any monitoring undertaken to evaluate the impact of

San Jose shall contract with a qualified consultant to develop the

CLRP and RAA by June 30, 2017.
b.

23

The framework for the CLRP that meets the requirements of Section

C.3.j.i(1) of the MS4 Permit will be completed by June 30, 2017.

24
c.

A draft CLRP shall be submitted to Baykeeper by February 28,

d.

A final CLRP shall be submitted to Baykeeper by July 31, 2020.

e.

The Parties shall meet and confer to discuss the CLRP and identify

25
2020.

26
27
28

1

the highest priority projects identified in the final CLRP for implementation during the life

2

of this Consent Decree by November 20, 2020. If unforeseen delays occur in meeting

3

the implementation schedule, including but not limited to permitting or a legal challenge,

4

despite all good faith efforts of San Jose, the Parties shall meet and confer regarding

5

the implementation schedule.

6
7

8
9
10

11

f.

San Jose shall appropriate a total of at least one hundred million

dollars ($100,000,000) over a 10-year period to implement the CLRP, including but not
limited to the acquisition of land, environmental review, design, construction, operation,
and maintenance of projects identified in the final CLRP.
g.

San Jose shall procure consultant services on or before September

1, 2021, for the purposes of implementing projects identified in the final CLRP totaling at
least one hundred million dollars ($100,000,000) over a 10-year period.

12
h.

On or before September 1, 2024, San Jose shall complete the

13
design, environmental, and geotechnical analysis of projects identified in the final CLRP

14
representing at least twenty-five million dollars ($25,000,000) in total project costs.

15
i.
16

17
18
19

20
21

On or before September 1, 2025, San Jose shall award contracts for

projects identified in the CLRP totaling at least twenty-five million dollars ($25,000,000).
j.

On or before September 1, 2025, San Jose shall complete the

design, environmental, and geotechnical analysis of projects identified in the final CLRP
representing at least thirty-five million dollars ($35,000,000), inclusive of sub-paragraph
h above, in total project costs.
k.

On or before the Termination Date, San Jose shall award contracts

22

for projects identified in the CLRP totaling at least thirty-five million dollars

23

($35,000,000), inclusive of sub-paragraph i above, in total project costs.

24

I.

On or before the Termination Date, San Jose shall complete the

25

design, environmental, and geotechnical analysis of projects identified in the final CLRP

26

representing at least fifty million dollars ($50,000,000), inclusive of sub-paragraphs h

27

and j above, in total project costs.

28

m.

1

At least ninety (90) days prior to the Termination Date, San Jose

2

shall provide to Baykeeper a final implementation letter. The final implementation letter

3

shall provide sufficient information and detail to demonstrate that San Jose has

4

undertaken and will have completed sufficient activities to fully comply with the

5

implementation schedule in this Paragraph by the Termination Date. The final

6

implementation letter shall be subject to review, comment, and the Dispute Resolution

7

8
9
10
11
12

provisions in Section XII below.
D.

Funding
54. The Parties recognize that the City will need additional revenue sources to

implement the projects included in the CLRP. City staff will identify potential funding
sources, including state and federal sources, and make all best efforts to submit timely
and complete applications for the following grants, at a minimum and as available:
a. Prop 84 Grants

13

b. Proposition 1 Planning Grants

14

c. Proposition 1 Implementation Grants

15

16
17
18
19

20
21

22
23
24
25

26
27
28

55. The City shall bring additional possible revenue measures intended to seek.
funding to implement the CLRP, to the City Council for consideration by December 31,
2017. Nothing in this paragraph obligates the City Council to take a particular legislative
action. Revenue measures may include:
a.

Stormwater sewer fee

b.

Stormwater sewer tax

c.

Bond

56. If San Jose is unable to obtain funding by December 31, 2020 sufficient to
implement the CLRP and meet the FIB Load Reduction Standard, the Parties shall meet
and confer to discuss what measures San Jose will take to ensure funding is acquired. If
San Jose has not obtained funding sufficient to implement the CLRP by December 31,
2020, Baykeeper may, in its discretion, terminate this Consent Decree. If Baykeeper

1

chooses not to terminate this Consent Decree, the Parties will work together to identify

2 other sources of funding available for San Jose to implement the CLRP and meet the
3

FIB Load Reduction Standard.
57. In any public communications related to fee or tax increase(s) related to this

4
5

Consent Decree, San Jose will not negatively cite Baykeeper or this Consent Decree as

6 the reason for such fee or tax increase(s), and will allow Baykeeper, to the extent
7 practicable, to review any media or marketing materials in advance of their release to the

8 public.
VIII.

9
10
11

A.

COLLECTION SYSTEM IMPROVEMENT PROGRAM

Exfiltration Abatement Program
58.

San Jose shall develop and implement an Exfiltration Abatement Program.

12 The goal of this program is to identify and prioritize for pipe rehabilitation, replacement or
13

repair the Gravity Sewer lines that have a high risk of leaking wastewater from the San

14 Jose Collection System to the San Jose MS4.
15
16

59.

As part of this Program, San Jose shall identify Sewer Line Segments

meeting all of the following criteria: (1) Sewer Line Segments that are constructed of

17 vitrified clay or reinforced concrete; (2) Sewer Line Segments that cross above MS4
18 pipes or are above and within ten (10) feet horizontally of MS4 pipes; (3) Sewer Line
19

Segments fifty Years or older, with a condition assessment that identifies that the Sewer

20 Line Segment has a medium to severe crack, offset joint, or some other structural defect
21 of Grade 4 or higher according to PACP standards; and (4) Sewer Line Segments that

22 are above the water table ("High Risk Pipes"). All Sewer Line Segments in the San Jose
23

Collection System for which San Jose already possesses necessary information to

24 evaluate using criteria (1)-(4) of this Paragraph shall be evaluated and designated as
25

High Risk Pipes, as appropriate, by December 31, 2016. All other Sewer Line Segments

26 in the San Jose Collection System meeting requirements (1), (2) and (4) of this
27 Paragraph shall be inspected using CCTV, ranked according to PACP standards, and
28

1

designated High Risk Pipes, as appropriate, by December 31, 2019.
60.

2
3

San Jose shall repair, rehabilitate, or replace all discovered High Risk

Pipes totaling on average at least six and a half (6.5) miles of High Risk Pipes each Year

4 (equal to at least sixty-five (65) miles over the term of the Consent Decree).
61.

5

If San Jose completes repair, rehabilitation and replacement of all the High

6 Risk Pipes and that total is less than sixty-five (65) miles, San Jose shall continue to
7 repair, rehabilitate, or replace Sewer Line Segments totaling on average at least six and

8 a half (6.5) miles per Year (at least sixty-five (65) miles over the term of the Consent
9 Decree) based on the following criteria: (1) Sewer Line Segments that cross above MS4
10 pipes or are above and within ten (10) feet horizontally of MS4 pipes; and (2) a condition

1 1 assessment identifies that the Sewer Line Segment has a medium to severe crack, offset
12 joint, or some other structural defect of Grade 4 or higher according to PACP standards.
62.

13

By December 31, 2016, and thereafter by October 30 of each Year this

14 Consent Decree remains in effect, San Jos6 shall submit an Annual Exfiltration
15

Abatement Program Plan to Baykeeper. The Annual Exfiltration Abatement Program

16

Plan shall be designed to eliminate the threat to water quality from High Risk Pipes and

17 shall:
18

a.

Describe the Exfiltration Abatement Program activities for the

19 preceding fiscal year;
20

b.

Identify all San Jose MS4 pipes and Sewer Line Segments San

21 Jose considered to determine which Sewer Line Segments are High Risk Pipes; which
22 High Risk Pipes San Jose considered for repair, rehabilitation, and replacement; and
23
24
25

26
27
28

which of those San Jose intends to repair, rehabilitate, or replace during that fiscal year;
c.

Include an ESRI GIS Shapefile for the pipes identified in sub­

paragraph b above that contains the pipe ID number, upstream manhole identifier,
downstream manhole identifier, upstream and downstream invert elevations, pipe age
(for Sewer Line Segmentsonly), pipe material (for Sewer Line Segments only), pipe
diameter, and whether the specific Sewer Line Segment was selected for repair,

1

rehabilitation, or replacement; and
d.

2
3

prioritize the Sewer Line Segments selected for repair, rehabilitation, or replacement.
63.

4
5

Describe how the factors listed in Paragraph 59 were used to

Baykeeper will review the Annual Exfiltration Abatement Program Plan and

submit comments, if any, on the Annual Exfiltration Abatement Program Plan within thirty

6 (30) days of receipt. San Jose shall consider Baykeeper comments in good faith, and
7 shall have fifteen (15) days from receipt of Baykeeper's comments to either incorporate

8 those comments into the Annual Exfiltration Abatement Program Plan or explain in
9
10

writing why those comments were not accepted. Disputes as to the adequacy of the
Annual Exfiltration Abatement Program Plan shall be resolved via the Dispute Resolution

11 provisions in Section XII below.
12

B.

CAPACITY ASSURANCE
64.

13

On or before December 21, 2017, San Jos6 shall review San Jose's 2013

14 Trunk System Master Plan, the capacity assessment associated with that Master Plan,
15

and any other appropriate documents, to generate a Capacity Assurance Program for

16 the trunk system. The Capacity Assurance Program shall evaluate whether San Jose
17 has adequate capacity to prevent capacity related SSOs from the trunk system during
18

rain events up to and including a 10-Year 24-Hour Storm, recommend capacity

19 improvement, where appropriate, and prioritize and plan identified capacity projects

20 sufficient to ensure adequate capacity to prevent spills up to the 10-Year 24-Hour Storm.
21

22
23

C.

ANNUAL COLLECTION SYSTEM REPORT
65.

Beginning in 2017, San Jose shall submit an Annual Collection System

Report to Baykeeper, along with its Annual Report. The Annual Collection System

24 Report shall provide details relevant to San Jose's implementation of, and compliance
25

with, this Section VIII during the preceding Year, including:

26

a.

Any program modifications or delays during the preceding Year;

27

b.

CCTV inspection schedules in the upcoming Year for inspection of

28

1

Gravity Sewers.
c.

2

A statement of:
i.

The miles of Sewer Line Segments that were assessed in the

ii.

3

The miles of Sewer Line Segments assessed receiving each

4 preceding Year;
5

6 grade in the PACP grading system;
iii.

7

8

Segments repaired, rehabilitated, and/or replaced during the preceding Year; and
iv.

9
10
11
12

13
14
15

16
17

66.

20
21

22
23
24
25

26
27
28

A map of the Sewer Line Segments cleaned.

Baykeeper will submit comments, if any, on the Annual Collection System

Report within thirty (30) days of receipt. Unless provided otherwise, San Jose shall
consider Baykeeper's comments in good faith and shall have twenty (20) days from
receipt of Baykeeper's comments to either incorporate those comments into the Annual
Collection System Report or explain in writing why those comments were not accepted.
Disputes as to the adequacy of the Annual Collection System Report shall be resolved
via Dispute Resolution as set out in Section XII of the Consent Decree.
IX.

ENVIRONMENTAL MITITGATION PROJECT, LITIGATION COSTS, AND
COMPLIANCE MONITORING

18
19

A summary of the mileage and identification of Sewer Line

67.

Environmental Mitigation Project: In lieu of civil penalties and to mitigate

past environmental harms allegedly resulting from the allegations in the Complaint, San
Jose agrees to fund and implement one or more environmental mitigation project(s) for
the five (5) Years following enactment of this Consent Decree in the amount of two
hundred thousand dollars ($200,000) per Year to be paid to San Jose Parks Foundation,
to give grants for projects that mitigate the impacts of municipal stormwater pollution
and/or trash on Coyote Creek and the Guadalupe River. Within forty-five (45) days of
the Effective Date and July 1 of each Year thereafter for the first five (5) Years of the
term of the Consent Decree, San Jose will submit payment of two hundred thousand
dollars ($200,000) to "San Jose Parks Foundation" addressed to: P.O. Box 53841, San

1

Jose, California 95153.

2

a.

Projects must be based on the following criteria:
i.

3

Projects that mitigate the impacts of trash and bacteria

4 discharges in Coyote Creek or the Guadalupe River;
ii.

5

Projects that otherwise improve water quality in Coyote Creek

6 or the Guadalupe River; or
iii.

7

Projects that include habitat restoration on Coyote Creek or

8 the Guadalupe River.
b.

9

Where projects meeting any of the criteria set out in sub-paragraph

10

67a with a cumulative total of one million dollars ($1,000,000) are not identified by the

11

San Jose Parks Foundation within six (6) years after the Effective Date, the San Jose

12

Parks Foundation may provide funding for projects to mitigate the impacts of urban

13

stormwater in the Guadalupe River or Coyote Creek watersheds.
c.

14

Within thirty (30) days of execution of this Consent Decree, the San

15

Jose Parks Foundation will provide a letter to the United States Department of Justice

16

and the Parties confirming its commitment to grant the environmental mitigation funds

17

consistent with the requirements of the Consent Decree. The San Jose Parks

18

Foundation will also provide a letter to U.S. Department of Justice and the Parties

19

summarizing each Year's grants, again confirming consistency with Consent Decree

20

requirements, on or before January 30th each Year during the term of the Consent

21

Decree.

22

d.

Past or present City representatives or employees must recuse

23

themselves from any part of the grant allocation process for the projects described in

24

this Paragraph. The environmental mitigation funds granted pursuant to this Paragraph

25

shall not replace funding from the City for any current or planned projects.

26

68.

Baykeeper's Litigation Fees and Costs. San Jose agrees to pay

27 Baykeeper the sum of four hundred twenty-five thousand dollars ($425,000), which
28

1

covers attorneys' fees and costs for services performed by and on behalf of Baykeeper

2 by its attorneys and consultants. San Jose will submit payment within forty-five (45)
3

days of the Effective Date to "San Francisco Baykeeper" addressed to: 1736 Franklin

4 Street, Suite 800, Oakland, California 94612.
69.

5

Compliance Monitoring. To defray Baykeeper's time and costs monitoring

6 San Jose's compliance with this Consent Decree over the next ten (10) Years, San Jose
7 agrees to pay Baykeeper the sum of ten thousand dollars ($10,000) per Year for the

8 term of this Consent Decree. Payment shall be made by June 30 of each Year
9 commencing June 30, 2017, and shall be made payable to "San Francisco Baykeeper"
10

addressed to: 1736 Franklin Street, Suite 800, Oakland, California 94612. In the final

11

Year of this Consent Decree, San Jose shall remit the final compliance monitoring

12 payment of ten thousand dollars ($10,000) to Baykeeper by the Termination Date. If this
13

Consent Decree terminates early pursuant to Paragraph 56, San Jose shall remit the

14

final compliance monitoring payment prorated for the time the Consent Decree was in

15

effect during the fiscal year to Baykeeper within forty-five (45) days of the Termination

16 Date.
17

18

X.
70.

STIPULATED PENALTIES

San Jose agrees to pay the following stipulated payments in the event that

19 it misses a deadline required by this Consent Decree, other than a missed deadline

20 because of a Force Majeure event as defined in Paragraph 101:
a.

21

For any report more than ten (10) days late, San Jose shall pay fifty

22 dollars ($50) per day, up to thirty (30) days late for a total of one thousand dollars
23
24
25

26

($1,000.00).
b.

For any report more than thirty (30) days late, San Jose shall pay an

additional one thousand dollars ($1,000).
c.

For any report more than ninety (90) days late, San Jose shall pay

27 an additional three thousand dollars ($3,000).
28

d.

1

The above penalties are cumulative, as applicable, to a maximum

2 penalty of seven thousand dollars ($7,000) per report.
3

71.

Any disagreement as to the amount of a stipulated payment is subject to

4 the Dispute Resolution provisions in Section XII below. San Jose agrees to pay any
5

stipulated payments due pursuant to this Consent Decree within forty-five (45) days after

6 the City receives written notice of the stipulated payment liability, or within forty-five (45)
7 days after resolution of a dispute in favor of Baykeeper if Dispute Resolution has been

8 invoked.
9
10

11

72.

All payments of stipulated penalties described above must be paid by San

Jose to Baykeeper at the address in Paragraph 91.
73.

The payment of stipulated penalties under this Consent Decree will not be

12 deemed an admission of or a violation of any law, regulation, or any of San Jose's
13

NPDES Permits.
XI.

14
15
16

74.

REGULATORY AGENCY ACTION

In entering into this Consent Decree, the Parties intend that San Jose

comply with the MS4 Permit requirements. The Parties further recognize that the

17 Regional Water Board has the primary obligation to issue and oversee compliance with
18 the MS4 Permit. The Parties intend that the Consent Decree be consistent with
19 regulatory requirements. In the event that the State Water Resources Control Board

20 ("State Water Board"), Regional Water Board, or staff thereof issues written
21 requirements, guidance, or directives that are inconsistent with the requirements of the

22 Consent Decree, the Parties shall meet and confer pursuant to the Dispute Resolution
23

provisions in Section XII below. In the event the Regional Water Board or the State

24 Water Board modifies the MS4 Permit, or modifies applicable Water Quality Objectives
25

or Total Maximum Daily Loads ("TMDLs") and incorporates those into the Basin Plan, the

26 Parties shall meet and confer pursuant to the Dispute Resolution provisions and
27 negotiate in good faith to modify the terms of this Consent Decree to be consistent with
28

1

the modified requirements. Nothing in this Consent Decree prohibits either Party from

2 challenging the Regional Water Board's or State Water Board's actions or inactions.
XII.

3
75.

4
5

DISPUTE RESOLUTION

This Court will retain jurisdiction over this matter for the term of this

Consent Decree for the purposes of enforcing the terms and conditions of this Consent

6 Decree, and adjudicating any disputes between the Parties that may arise under the
7

provisions of this Consent Decree. The Court has and will maintain the power to enforce

8 this Consent Decree with all available legal and equitable remedies.
76.

9

In resolving disputes concerning implementation or interpretation of any

10 provision of this Consent Decree, the Parties agree that any action or proceeding to
1 1 enforce or interpret the terms of this Consent Decree or how regulatory mandates impact
12 this Consent Decree, cannot be heard by the Court unless the Parties have first utilized
13

Informal Dispute Resolution in Paragraph 78, and the mediation process in Paragraph

14 79.
15

77.

Either Party to this Consent Decree may invoke the dispute resolution

16 procedures of this Section by notifying the other Party in writing and clearly stating the
17 matter(s) in dispute and of the Party's proposal to resolve the dispute under this Section.
18

78.

The Parties will meet and confer (either by telephone or in person) in a

19 good faith attempt to resolve the dispute informally ("Informal Dispute Resolution") within

20 thirty (30) days from the date of the notice. By mutual consent, the Parties may extend
21

22

the time to meet and confer.
79.

If Informal Dispute Resolution is not successful in resolving the dispute,

23

either Party may request mediation in the Federal District Court with Magistrate Judge

24

Cousins serving as the mediator, or if unavailable, another Federal Magistrate assigned

25

to this matter.

26

80.

The Party initiating the mediation must serve a written notice of its

27 intention to seek mediation ("Mediation Notice"). The Mediation Notice may be no longer

28

1

than 15 pages in length and must set forth with particularity all of the Party's claims and

2 the factual foundation for such claims. Within fourteen (14) days of receipt of the
3

Mediation Notice, the other Party must serve a written response of no more than fifteen

4 (15) pages setting forth with particularity its position with regard to the claims contained
5

in the Mediation Notice ("Response"). The Mediation Notice and the Response will be

6 provided concurrently to Magistrate Judge Cousins or another Magistrate as appropriate.
7 The Parties and the Magistrate may hold a pre-mediation conference for the purpose of

8 setting the schedule and procedures for the mediation. Each Party shall pay its own fees
9 and costs for the mediation.
81.

10

If the Parties cannot resolve a dispute through Informal Dispute Resolution

11 or the mediation process, then either Party may invoke formal dispute resolution
12 ("Formal Dispute Resolution"). To invoke Formal Dispute Resolution, a Party must file a
13

motion before the District Court to interpret this Consent Decree; reconcile provisions of

14 this Consent Decree with regulatory changes, guidance or directives; or determine
15

whether either Party is in breach of this Consent Decree and if so, to require the

16 breaching Party to correct the breach identified by the Court within a reasonable period
17 of time. The filing Party may request an expedited hearing schedule on the motion.
82.

18

When resolving disputes, in addition to contract interpretation principles

19 and Clean Water Act precedent, the Parties and the District Court Judge shall consider:

20

a.

Changes in any re-issued Permit;

21

b.

Written guidance or permit interpretation from Regional Water Board

c.

The Bay Area Stormwater Management Agencies Association or

22 staff;
23

24 SCVURPPP regional program, such as the Trash Receiving Water Monitoring Plan,
25

26

once completed and approved by the Regional Water Board; and
d.

Changes to Water Quality Objectives in the San Francisco Bay

27 Basin Water Quality Control Plan, including the establishment of a TMDL.

28

1

83.

To help limit fees and costs potentially incurred in dispute resolution, the

2 Parties agree to waive the right to appeal any decision of the District Court.
3

84.

Except as otherwise provided in this Consent Decree, litigation costs and

4 fees incurred in addressing and/or resolving any dispute shall be awarded in accordance
5

with the standard established by section 505 of the Clean Water Act, 33 U.S.C. § 1365,

6 and case law interpreting that standard, provided that San Jose will not be obligated to
7 pay more than two hundred thousand dollars ($200,000) during the term of this Consent

8 Decree.
9
10

85.

Notwithstanding that a particular issue is in the Dispute Resolution process

outlined in this Section XII, San Jose must comply with any provisions of the Consent

1 1 Decree that are not in dispute. The timeline for implementation of any issues that are in
12 the Dispute Resolution process will be tolled pending the outcome of the Dispute
13

Resolution.
XIII.

14
15

86.

MUTUAL RELEASE OF LIABILITY

Baykeeper's Release. Upon the Effective Date of this Consent Decree and

16 through the Termination Date, Baykeeper, on its own behalf and on behalf of its current
17 and former officers, directors, employees, and each of their successors and assigns, and
18 its agents, attorneys, and other representatives, hereby releases and covenants not to
19 sue San Jose (and each of its current, former, and future City Council members, officers,

20 directors and employees, and each of their predecessors, successors and assigns, and
21 each of their agents, attorneys, consultants, and other representatives) of and from, and

22 waives CWA claims, known and unknown, that Baykeeper alleged, or could have alleged
23

in its Notice Letter or Complaint and for alleged violations of the MS4 Permit occurring

24 during the term of this Consent Decree, including all claims for injunctive relief, penalties,
25

fees (including fees of attorneys, experts, and others), costs, expenses or any other sum

26 incurred or claimed. Baykeeper's release does not apply to claims for San Jose's failure
27 to comply with this Consent Decree.
28

1

87.

San Jose's Release. Upon the Effective Date of this Consent Decree, San

2 Jose, on its own behalf and on behalf of its current and former City Council members
3

and employees, and each of their successors and assigns, and their agents, attorneys,

4 and other representatives, hereby releases Baykeeper (and its current and former
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officers, directors, and employees, and each of their successors and assigns, and its

6 agents, attorneys, and other representatives) of and from, and waives all claims which
7 arise from or pertain to this action, including all claims for fees (including fees of

8 attorneys, experts, and others), costs, expenses or any other sum incurred or claimed for
9 matters related to, or which could have been asserted in response to, Baykeeper's
10 Complaint up to the Termination Date. San Jose's release does not apply to claims for

1 1 Baykeeper's failure to comply with this Consent Decree.

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88.

California Civil Code Waiver. The Parties acknowledge that they are

familiar with section 1542 of the California Civil Code, which provides:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of the executing the
release, which if known by him must have materially affected his
settlement with the debtor.
The Parties hereby waive and relinquish any rights or benefits they may have under
California Civil Code section 1542 with respect to any other claims against each other
arising from, or related to, the allegations and claims as set forth in the Notice Letter, the
Complaint, or the MS4 Permit during the term of this Consent Decree.
89.

Nothing in this Consent Decree limits or otherwise affects the Parties' right

to address or take any position that they deem necessary or appropriate in any formal or
informal proceeding before the Regional Water Board, the State Water Board, the U.S.
Environmental Protection Agency, or any other judicial or administrative body on any
matter relating to the MS4 Permit or any reissued or subsequent version of the MS4
Permit, or any issue relevant to this action. Unless otherwise expressly waived in this
Consent Decree, the City further reserves all defenses, whether legal or equitable, with
respect to any future enforcement action that may be brought against it, whether by

1

Plaintiff, the United States, the State of California or any other person or entity. San

2 Jose further expressly reserves all rights and remedies otherwise available to it with
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respect to the MS4 Permit.
90.

During the term of this Consent Decree, Baykeeper, and its employees

acting on behalf of Baykeeper, will not provide data, financial support or personnel time

6 for the purpose of supporting lawsuits brought by other groups or individuals against the
7 City for the violations alleged in the Notice Letter or Complaint or for any alleged

8 violations of the MS4 Permit.
XIV.

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91.

NOTICES AND SUBMISSIONS

Any notifications, submissions, or communications to Baykeeper or to San

11 Jose pursuant to this Consent Decree will be, to the extent feasible, sent via electronic
12 mail transmission to the e-mail addresses listed below (electronic return receipt
13

requested) or, if electronic transmission is not feasible, via U.S. Mail or hand delivery to

14 the following addresses. Any change in the individuals or addresses designated by any
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Party must be made in writing to all Parties, but the Parties stipulate and agree that the

16 Parties need not amend this Consent Decree to effectuate a change in the notice
17 recipients.

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If to Baykeeper:

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Daniel Cooper
Lawyers for Clean Water, Inc.
1004-A O'Reilly Avenue
San Francisco, California 94129
Email: [e-mail]

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With copies to:
Nicole Sasaki
San Francisco Baykeeper
1736 Franklin Street, Suite 800
Oakland, California 94612
Email: [e-mail]

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If to San Jose:
City of San Jose
Attn: City Attorney
200 E. Santa Clara St., 16,h Floor
San Jose, CA 95113
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
With copies to:

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City of San Jose
Attn: Directors of Environmental Services,
Public Works and Transportation
200 East Santa Clara Street
San Jose, CA 95113
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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92.

Notices submitted electronically in accordance with this Section will be

14 deemed submitted upon transmission, but a notice is not effective if the sending Party
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learns that it did not reach the Party to be notified. Notwithstanding the sender's receipt

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of a successful delivery notification, a recipient that fails to receive the submission may

17 request delivery by other means. Such a request does not affect the timeliness of the
18 original submission. Notices sent by U.S. Mail will be deemed submitted on the date
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they are postmarked.
93.

San Jose agrees to provide to Baykeeper any new or existing final

technical reports or documents within San Jose's custody or control that are reasonably

22 necessary to confirm San Jose's compliance with this Consent Decree within thirty (30)
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days of written request by Baykeeper.
94.

During the term of this Consent Decree, San Jose agrees to provide

Baykeeper with a copy of all final documents required to be submitted to the Regional

26 Water Board or the State Water Board concerning the City's compliance with the current
27 or any subsequent MS4 Permit. Such documents will be transmitted to Baykeeper via
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electronic mail at the time, or within twenty-four (24) hours, that the documents are

2 submitted to the Regional Water Board or State Water Board, with the exception of the
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Annual Report. The Parties agree that San Jose is under no obligation to provide

4 Baykeeper any documents, data or reports that are not in final form.
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95.

During the term of this Consent Decree, San Jose will use its best efforts to

6 provide Baykeeper with a copy of all public communications and education materials
7 related to the matters covered under this Consent Decree, including but not limited to

8 trash reduction marketing campaigns.
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96.

Failure to provide copies to Baykeeper of reports to the Regional Water

Board or the State Water Board or public communications as required in Paragraphs 94­

11 95 will not subject the City to stipulated penalties under Section X of this Consent
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Decree.
97.

During the life of this Consent Decree, San Jose will preserve at least one

14 legible copy of all records and documents, including computer-stored information, which
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memorializes performance of its obligations under this Consent Decree.
XV.

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98.

GENERAL PROVISIONS

Construction. The language in all parts of this Consent Decree will be

construed according to its plain and ordinary meaning, except as to those terms

19 specifically defined within the Consent Decree or the MS4 Permit. If a term is defined

20 differently in this Consent Decree and the MS4 Permit, the definition in the Consent
21 Decree shall control.

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99.

Choice of Law. The laws of the United States will govern this Consent

Decree, and to the extent State law applies, the laws of the State of California will

24 govern.
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100.

Counterparts. This Consent Decree may be executed in any number of

26 counterparts, all of which together will constitute one original document. Telecopy,
27 scanned copies (i.e., pdf) and/or facsimile copies of original signature will be deemed to
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be originally executed counterparts of this Consent Decree.
101.

Force Majeure. Neither Party will be considered to be in default in the

performance of any obligations under this Consent Decree precluded by an event of

4 Force Majeure. Force Majeure is any act of God, war, fire, earthquake, natural
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catastrophe, sabotage or terrorism, city-wide civil unrest, or restraint by court order.

6 Force Majeure does not include normal inclement weather, economic hardship, or failure
7 to allocate funds to comply with this Consent Decree during San Jose's annual budget

8 process, except where these conditions are due to a Force Majeure event. Any Party
9 seeking to rely upon this Section to excuse or postpone performance shall have the
10 burden of establishing that it could not reasonably have avoided the Force Majeure event

11 and that through the exercise of due diligence it has been unable to overcome the failure
12 of performance. The Parties shall exercise due diligence to resolve and remove any
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Force Majeure event. For any delay in performance caused by a Force Majeure event,

14 the Parties agree to modify this Consent Decree to provide additional time for
15 performance of the particular requirement and, as applicable, any subsequent
16 requirement affected by the Force Majeure. Delay in compliance with a particular
17 requirement due to a Force Majeure event shall not excuse or delay compliance with any
18 and all other unrelated and unaffected obligations required under this Consent Decree.
19 If the Parties are unable to agree that a delay has been caused by a Force Majeure

20 event, or if the Parties are unable to agree on a modification to the schedule for the
21 particular requirement(s) delayed due to Force Majeure, the Parties will invoke Dispute

22 Resolution provisions in Section XII.
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102.

Modification of the Consent Decree. This Consent Decree, and any

24 provisions herein, may not be changed, waived, discharged, or terminated unless by a
25 written instrument, signed by the Parties. The Parties agree to modify the Consent

26 Decree to incorporate any changes to the Consent Decree as a result of the Dispute
27 Resolution process, if any.
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103.

Full Settlement. This Consent Decree constitutes a full and final

2 satisfaction of this matter, including without limitation, anything in Plaintiff's Notice Letter
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or Complaint.
104.

Severability. Except as otherwise expressly provided in this Consent

Decree, in the event that any provision, paragraph, Section, subsection, or sentence of

6 this Consent Decree is held by the Court to be unenforceable, the validity of the
7 enforceable provisions will remain in full force and effect providing that the intent of the

8 Parties when entering into this Consent Decree can still be achieved.
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105.

Integration Clause. This is an integrated Consent Decree. This Consent

Decree is intended to be a full and complete statement of the terms of the agreement

1 1 between the Parties and expressly supersedes any and all prior oral or written
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agreements, covenants, representations, and warranties (express or implied) concerning

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the subject matter of this Consent Decree.

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106.

No Third Party Beneficiaries. This Consent Decree does not confer upon

any person other than the Parties any rights or remedies hereunder.
107.

Authority. The undersigned representatives for Baykeeper and San Jose

17 each certify that he/she is fully authorized by the Party whom he/she represents to enter

18 into the terms and conditions of this Consent Decree, to execute it on behalf of the
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Parties, and to legally bind the Parties to its terms.
The Parties hereby enter into this Consent Decree.

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APPROVED AS TO FORM:

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Date:

.. \A

b ' l6 • hp

By: Nora Frirhann
Assistant City Attorney

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SAN FRANCISCO BAYKEEPER:

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A

Date: June 1. 2016

x

By: SejarChoksi-Chugh
Executive Director

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APPROVED AS TO FORM:

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C
Date: 27 May 2016

By: Daniel Cooper
Lawyers for Clean Water, Inc.
Counsel for Baykeeper

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X

IT IS SO ORDERED

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Date: August 11, 2016
Honorable Beth Labson Freeman
District Judge of the
United States District Court for the
Northern District of California