HomeMy WebLinkAbout10/19/1999, 3 - MEMORANDUM OF UNDERSTANDING WITH FISH AND GAME CONCERNING WATER REUSE PROJECT Council M�°/0
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C I T Y OF SAN LUIS O B I S P O
FROM: John Moss, Utilities Director
Prepared By: Dave Pierce,Water Projects anager�
SUBJECT: MEMORANDUM OF UNDERSTANDING WITH FISH AND GAME
CONCERNING WATER REUSE PROJECT
CAO RECOMMENDATION
Approve a Memorandum of Understanding with the California Department of Fish and Game
regarding the City's Water Reuse Project and authorize the Mayor to execute the MOU.
DISCUSSION
The Water Reuse Project will provide a distribution system to deliver up to 1,233 acre-feet a year of
high quality tertiary reclaimed water to large volume customers throughout San Luis Obispo. The
reclaimed water meets the State of California Department of Health Services' requirements for
irrigation of parks, playgrounds and many other uses. Any change in discharge or use of
wastewater must be approved by the State Water Resources Control Board SWRCB). On
August 19, 1991 the City submitted a"petition for change of point of discharge, place of use, and
purpose of use of treated wastewater". Six parties filed protests: the California Department of
Fish and Game, the Avila Valley Advisory Committee, the California Sportfishing Protection
Alliance, Central Coast Salmon Enhancement, Dr. John DeVincenzo, and Lee and Loraine
Collins.
The California Environmental Quality Act (CEQA) required the preparation of an Environmental
Impact Report (EIR) before the SWRCB could act on the petition. The Endangered Species Act
required the City to consult with the U.S. Fish and Wildlife Service (USFWS) regarding the
endangered tidewater goby and with the National Marine Fisheries Service (NIVIFS) regarding the
threatened steelhead. The City has worked closely with the California Department of Fish and
Game(CDFG) during the completion of the studies needed to prepare the EIR.
Staff has reached agreement with the CDFG on terms to satisfy the Department's concerns. This
Memorandum of Understanding provides assurance that the City will continue the release of 1.7 cfs
of treated wastewater to San Luis Obispo Creek until such time that an outside agency imposes
requirements that prevent the discharge or unreasonably increase the cost of treatment. The City
will modify the fish ladder at Marre Dam to improve the passage of fish over this low obstruction,
and create instream pool habitat suitable for pond turtles as well as steelhead. Other concerns of the
Department are adequately covered in the Terms and Conditions required by the biological opinions
produced by the USFWS and NMFS.
Approval of this Memorandum of Understanding will allow Fish and Game to dismiss their protest
prior to the State Water Resources Control Board hearing on Monday,November 1, 1999.
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Council Agenda Report—Water Reuse Project- MOU with Fish & Game
Page 2
Project Status Update.
After the petition to use the treated wastewater was filed, the City prepared a Draft EIR that was
circulated on March 17, 1993. After reviewing comments, the City decided to complete additional
studies and prepare a second draft EIR which was circulated for comment on December 21, 1995.
On November 13, 1996, the USFWS issued a biological opinion concerning impacts to the
tidewater goby. A mitigation plan was prepared and the City Council certified the EIR on
March 25, 1997. In September, 1997, the South-Central California Coast Environmentally
Significant Unit(ESU) of steelhead was listed as threatened. On July 28, 1999, the NMFS issued a
biological opinion concerning project impacts to steelhead.
In August, 1999, the SWRCB required all protestants to notify the Board if their concerns had not
been satisfied by the City's EIR and the biological opinions related to the tidewater goby and the
steelhead. Central Coast Salmon Enhancement (CCSE) notified the board that they wished to
continue their protest. The initiator of the California Sportfishing Protection Alliance (Ca1SPA)
told the Board that he wished to dismiss the protest, but other individuals informed the Board that
they are now the proper representatives of CaISPA and wish to continue the protest. A hearing
before the SWRCB is scheduled for November 1, 1999. Typically it requires six months following
the hearing before a decision is issued.
The fact that City has satisfied the concerns of the California Department of Fish and Game , the
U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) will
be a significant factor supporting a position that the Water Reuse Project is environmentally sound.
The USFWS and NMFS did not file protests,but have reviewed the project for compliance with the
Endangered Species Act (ESA). They have issued biological opinions that mandate mitigation
measures for compliance with the ESA. These measures have been incorporated into the revised
mitigation plan.
Proposed Mitigation Measures
Appendix L of the EIR that the Council certified on March 25, 1997 is a mitigation plan. A revised
mitigation plan has been formulated based on the Terms and Conditions of the Incidental Take
Permit in the biological opinion issued by the NMFS.
The Mitigation Plan approved on March 25, 1997 includes five mitigation measures. (Releasing
a minimum of 1.7 cfs of recycled water to the creek is not a mitigation measure because the
scope of the project was defined based on this continued discharge.)
1. Improve fish passage at the Marre Dam.
2. Create 12,000 square feet of off-creek pool habitat.
3. Construct an alternative outfall for the 1.7 cfs discharge at a location approximately
3,000 feet upstream of the present outfall or at a location on City property near Bianchi
Lane.
4. Facilitate installing a groundwater well field on the Hayashi property by providing
funding to the landowner.
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Council Agenda Report—Water Reuse Project-MOU with Fish & Game
Page 4
WATER REUSE PROJECT - REVISED MITIGATION PLAN
Plan Approved March 25, 1997 Revised Plan
Dedicate 1.7 cfs of wastewater effluent per Dedicate 1.7 cfs of wastewater effluent per Water
Water Code 1212 Code 1212
Discharge additional monthly minimum flows
required by NMFS.
Document Daily Minimum Release for six years
Improve fish passage at the Marre Dam Improve fish passage at the Marre Dam
Create off-stream pool habitat. (12,000 : Create in-stream pool habitat. (Greater of 20 pools
square feet) or 12,000 square feet)
Construct an alternative outfall for 1.7 cfs of Replace habitat lost in 5.7 miles downstream of the
the effluent at a location approximately WRF by acquiring and preserving existing
3,000 feet upstream of the present outfall. habitat at a 2:1 ratio or creating new habitat at a
1:1 ratio.
Facilitate installing groundwater well field Facilitate installing groundwater well field on
on Hayashi property to replace diversion. € Hayashi property to replace diversion.
Enhance Riparian Communities. € Contribution of$175,000 to the purchase,for
Phase 1. $75,000 preservation,of a parcel that contains 3,000 feet
Phase 2. $25.00 per acre-foot for the first 20 s of the East Fork and 2,000 feet of the mainstem
years of the project. of San Luis Obispo Creek.
Prevent rapid or instantaneous changes in flow from
the WRF.
Monitor flow in Creek for six years.
Monitor emigration to validate the time of
emigration for six years
Monitor abundance downstream of the WRF for six
years.
FISCAL IMPACT
There are no specific costs associated with this Memorandum of Understanding. The mitigation
measures required to satisfy the terms of the MOU were included in the Mitigation Plan for the
Water Reuse Capital Improvement Project that is approved in the 1990-01 Financial Plan
(page E-5)
ATTACHMENTS
Memorandum Of Understanding With Fish And Game Concerning Water Reuse Project
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MEMORANDUM OF UNDERSTANDING T.�9'1 pyv
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
TENS 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("Creep 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 tt>fnent 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 di=l=ed for use in the
City come from outside the San Luis Obispo Creek watershed; and,
WHEREAS,the Urban Water Management Pian 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("AFT%of which only 500 AFY are proposed to be yielded from ground water wells
located in the San Luis Obispo Creek watershed;and,
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WHEREAS,the existing design of City's Facility provides for discharge of treated
effluent to Creek; and,
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
frmding to modify City's existing Water Reclamation Facility to implement City's proposed
Wafer 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,
SAS,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(Muff S)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( W#12");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 W W#12 subject to City's compliance with the measures required of City under
this MOU.
NOW,THEREFORE, MY 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
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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
eluent from City's Facility that is not available for appropriation to thud 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 C FEIR'). City and the
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 Mame 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
Steam 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 bas 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
W W#12.
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IN W TNESS WREOF,THE PARTIES HERETO HAVE EXECUTED TMS
MOU effective as of the date last signed below:
Date-.- CALIFORNIA DEPARTMENT OFFISH AND GAME
BY
'Brian Honter,Regional Manager
Date:. CITY OF SAN LUIS OBISPO
BY -
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