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HomeMy WebLinkAbout09/20/2005, C3 - WATER REUSE PROJECT-FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING WITH DEPARTMENT OF FISH AND GAME i i M.64 councilg j ac cn as Report 1WMNU.Mb" G 3 CITY O F SAN LUIS O B I S P O 'FROM: John E. Moss, Utilities Director Prepared by. Katie DiSimone, Water Projects Manager 1"Ip SUBJECT: WATER REUSE PROJECT—FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING WITH DEPARTMENT OF FISH AND GAME CAO RECOMMENDATION 1. Execute the First Amendment to the Memorandum of Understanding with the Department of Fish and Game regarding the Water Reuse Project. 2. Authorize transfer of$50,000 to an interest bearing, independent escrow account to be set-up in accordance with the MOU. DISCUSSION The City's Water Reuse Project is designed to supply approximately 1000 acre-feet per year of recycled water for irrigation and other approved uses within the City limits. As part of the approval and permitting process for the project, the City had to obtain a State Water Resources Control Board (SWRCB) permit for decreasing the discharge volumes of water to San Luis Obispo Creek. Several protests to that permit were filed, among the protestants was the California Department of Fish and Game(DFG). A majority of the concerns were with regards to decreasing the volume of water within the creek and how that could impact fish populations. The City and DFG came to an agreement of tasks the City would undertake in order for•DFG to withdraw their protest of the SWRCB Permit. This agreement was signed as a Memorandum of Understanding (MOU) between the City and DFG dated October 1999. Among the tasks identified in the MOU were (1) the City's filing of a petition with the State that San Luis Obispo Creek be designated as fully appropriated, (2) modification of the fish ladder and brush rack at Marre Dam, and (3) compliance with National Marine Fisheries Service (NMFS) Biological Opinion for the Water Reuse Project. The first and third tasks have been accomplished. The second task, improvements to the fish ladder and brush rack at Marre Dam, required consultation between the City and DFG to develop a plan for the dam's modification. During that time, the Land Conservancy developed a plan for Marre Dam and obtained grant funding to perform the work. The modification is a relatively straight-forward notch in the dam to allow for improved fish passage. However, long tern maintenance of the dam is also necessary to clear debris and inspect the dam regularly. This First Amendment to the original MOU places $50,000 in an independent, interest-beating account for the purposes of maintaining the Marre Dam improvements. This action will satisfy requirement #2 above by providing funding for the long term maintenance of the improved dam structure in lieu of modifying the fish ladder. The account will be maintained by the Land Conservancy, and only interest dividends will be used for Marre Dam. Water Reuse Project—First Amendment to MOU with DFG Page 2 City staff believes this is an equitable modification.to the original MOU given that the Land Conservancy obtained grant funding to perform the Marre Dam improvements. The City and PFG supports the.Land Conservancy's maintenance of the dam FISCAL IMPACT This First Amendment to the MOU requires $50,000 to fully fund. Staff proposes funding for this project from the Water Reuse Project mitigation measures account. Currently, this account has $229,658.45 in available funds.- ALTERNATIVES unds.ALTERNATIVES The City could choose to perform the Marre Dam_ improvements through an RFP for services. This process however would not likely result in cost savings to the City, as the Land Conservancy has grant funding to perform.the work. Additionally, long-term maintenance would be an additional cost to this alternative. ATTAC)EIMENT Attachment 1 -Original MOU Attachment 2-First Amendment to the MOU GA106 Council Agenda ReportsMater Reuse MOU with DFG C3 =2 Attachment MEMORANDUM OF UNDERSTANDING by and between THE CITY OF SAN LUIS OBISPO and CALIFORNIA DEPARTMENT OF FISH AND GAME regarding CITY OF SAN LUIS OBISPO WATER REUSE PROJECT and REDUCTION OF QUANTITY OF TREATED EFFLUENT DISCHARGED INTO SAN LUIS OBISPO CREEK THIS MEMORANDUM OF UNDERSTANDING ("MOU")is made and entered into by and between the City of San Luis Obispo ("City") and the California Department of Fish and Game ("Department"). The purpose of this MOU, addressing the proposed future operation of City's wastewater treatment facility such that certain of the treated effluent previously discharged to San Luis Obispo Creek ("Creek") will be recycled and used for irrigation purposes("the project"), is to set forth the terms and conditions upon which the Department voluntarily agrees to withdraw and. dismiss its protest, filed with the State Water Resources Control Board ("Board"). City's obligations are as specified in this MOU. WHEREAS,City presently operates a wastewater treatment facility ("Facility" or"Water Reclamation Facility"); and, WHEREAS,City proposes to modify its existing Facility to allow for water reuse (reclamation) to augment City's existing domestic water supplies to meet the needs of City's water users;and, WHEREAS, the.sources of 95% of the water currently being distributed for use in the City come from outside the San Luis Obispo Creek watershed; and, WHEREAS, the Urban Water Management Plan adopted by City on November 15, 1994 provides for the City's total water supply at General Plan build-out,to be 11,596 acre feet per year ("AFY"), of which only 500 AFY are.proposed to be yielded from groundwater wells located in the San Luis Obispo Creek watershed; and, WHEREAS, the existing design of City's Facility provides for discharge of treated effluent to Creek; and; , .Attachment MOU:CDFG&City regarding Water Reuse Project ? WHEREAS, City's existing Facility is designed to produce an effluent that meets the conditions set by the State of California Regional Water Quality Control Board in NPDES Permit No. CA0049224 ("City's Permit") and, WHEREAS, various State and Federal regulatory agencies have the power to modify the requirements imposed upon City's Permit; and, WHEREAS, City has applied to the Federal Environmental Protection Agency (EPA) for funding to modify City's existing Water Reclamation Facility to implement City's proposed Water Reuse program and to construct improvements to City's Water Reclamation Facility; and,. WHEREAS, the improvements to City's Water Reclamation Facility will be designed to discharge treated water to Creek in an amount not less than 1.7 cubic feet per.second (CFS); and, WHEREAS, pursuant to Section 7 of the Federal Endangered Species Act, EPA and City have consulted with the United States Department of Commerce National Marine Fisheries Service (NMFS) and NMFS has published a Biological Opinion (Biological Opinion) for EPA's proposed funding of City's proposed improvements to City's Water Reclamation Facility; and, WHEREAS, the Biological Opinion includes certain terms and conditions (Terms and Conditions), including among said Terms and Conditions a minimum discharge from City's Water Reclamation'Facility of not less than 1.7 cfs for the life of the project; and, WHEREAS,City has filed a petition with the Board for a change in point of discharge, place of use, and purpose of use of treated wastewater("WW412"); and, WHEREAS, Department has filed a written protest.to City's petition with the Board; and, WHEREAS,City and the Department desire to enter into an agreement whereby City and the Department agree that the State Water Resources Control Board(Board) may not grant any permit or license to any person or entity other than the City for the appropriation of the effluent discharged from City's Water Reclamation Facility; and, WHEREAS, the Department agrees voluntarily to dismiss and withdraw its protest to City's Petition WW#12 subject to City's compliance with the measures required of City under this MOU. NOW,THEREFORE, CITY AND THE DEPARTMENT HEREBY AGREE AS FOLLOWS: 1. City and the Department agree that, pursuant to California Water Code section 1212, they will jointly oppose the Board granting any permit or license to any person or entity other than the City for the appropriation of the effluent discharged from City's Facility. City shall file a petition with the Board to have San Luis Obispo Creek designated as a fully appropriated stream and will list the amount of 1.7 cfs as included in that portion the effluent from City's Facility that is not available for appropriation to third parties. The Department shall assist City with such petition. 2. City shall modify the fish ladder and brush rack at.Marre Dam as described in the Final, Environmental Impact Report dated March 1997 for the project ("FEIR"). City and the C�3 -y Attachment] MOU: CDFG K City regarding Water Reuse Project 3 Department shall cooperate to seek, as needed, access agreements from those private property owners owning land adjacent to Marre Dam. City shall consult with the Department regarding the design and specifications of the modifications to Marre Dam prior to finalizing any plans and specifications for same. 3. City and the Department acknowledge that the NMFS Biological Opinion referenced above includes a provision requiring City to create twenty (20) instream pools, which will be approximately 12,000 square feet of pool habitat. This pool habitat may be created on San Luis Obispo Creek or some other creek. City shall consult with the Department in developing its plan for the creation of pool habitat, for the purpose of ensuring that the habitat will also benefit pond turtles. City agrees that the creation of such pool habitat will be done in accordance with the methodology set forth in the California Salmonid Stream Habitat Restoration Manual (CDFG, 1998). 4. In consideration_of City's agreement to perform the obligations hereinabove stated, no later than October 22, 1999, Department shall provide written notification to Board that Department voluntarily withdraws and dismisses its protest to City's petition WW#12 on the basis of this MOU. 5. This MOU shall be governed by the laws of the State of California.. Actual or threatened breach of this MOU may be prohibited or restrained by a court of competent jurisdiction. 6. City shall not commence the project unless and until City first has substantially commenced compliance with City's obligations under this MOU. 7. This MOU shall be of no further force and effect if the Board denies City's petition WW#12. IN WITNESS WHEREOF,THE PARTIES HERETO HAVE EXECUTED THIS MOU effective as of the date last signed below. Date.- CALIFORNIA CALIFORNIA DEPARTMENT OF FISH AND GAME By 7jr Brian Hunter, Regional Manager Date: 10 l CITY OF SAN LUIS OBISPO A _'T By Mayor Allen K. settle / L. l APPROVED AS TO FORA: LEE PRICE, ITY C GL . h 0 ey C 3 -S Attwhmeut 2 i 'FIRST AMENDMENT-TO MEMORANDUM OF UNDERSTANDING By and Between THE CITY OF SAN LUIS OBISPO And CALIFORNIA DEPARTMENT OF FISH AND GAME Regarding CITY OF SAN LUIS OBISPO WATER REUSE PROJECT And REDUCTION OF QUANTITY OF TREATED EFFLUENT DISCHARGED INTO SAN LUIS OBISPO CREEK ` THIS FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING (the "Amendment") is made and. entered into by and between the City of San Luis Obispo (°City") and the California Department of Fish and Game (°Department°), with respect to the following: RECITALS WHEREAS, the City and the Department entered into the original Memorandum of Understanding ("MOU") on October 19, 1999; and WHEREAS; the MOU addressed certain requirements placed upon the City; which set forth the terms and conditions upon which the Department voluntarily agreed to withdraw and dismiss its protest, filed with the State Water Resources Control Board ("Board") regarding the City's Water Reuse Project, and WHEREAS, the City agreed to undertake certain work to modify the fish ladder and brush rack at Marre Dam as described in the Final Environmental Impact.Report dated March 1997 for the Water Reuse Project, and agreed to consult with the Department regarding the design and specifications of the modifications to Marre Dam prior to finalizing any plans and specifications for same, and WHEREAS, in the intervening time, the Land Conservancy of San Luis Obispo County ("Land Conservancy") has obtained grant funds to undertake modifications to the Marre Dam which meet the approval of the Department and support of the City, and Attachment 2 WHEREAS, on August 5, 2003, representatives of the City, Departmentand Land Conservancy met to discuss the project in detail, and determined that amendment to the MOU was in the best interest of all parties. NOW, THEREFORE, THE CITY AND DEPARTMENT HEREBY AGREE AS FOLLOWS: 1. The City and Department agree that, upon initiation of construction of the improvements to Marre Dam proposed by the Land Conservancy, the City shall cause to be placed into an independent, interest-bearing account; the sum of Fifty Thousand Dollars ($50,000.00), the interest from which may be used for maintenance of said improvements to the Marre Dam. 2. The City shall further cause that said interest-bearing account shall be maintained by the Land Conservancy, and both the City and Department shall have the right to inspect the records of said account upon reasonable notice to the Land Conservancy. 3. City shall further cause that principal,of said account may be invaded.only upon prior Written approval of the City and Department, for activities reasonably related to the purposes-of the MOU and of this Amendment. 4. Completion by the City of the above actions, together with approval by the Department, shall constitute full and complete satisfaction of the requirements placed upon the City by the MOU with regard to Marre Dam. 5. All terms and conditions of the MOU dated October 19, 1999, between the City and Department, shall remain in full force and effect except as modified by this amendment. IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AMENDMENT, effective as of the date last signed below. Date: 0 9/0'?I 0 S CALI.FORrAIA DEPARTMENT OF FISH AND GAME By: Robert W. Floerke, Regional Manager Date: CITY OF SAN LUIS OBISPO By: Mayor Attest: Approved as to Form ke--Prix, City Clerk City Attorney