Title
RESOLUTION NO. 2015-212 OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE THIRD AMENDMENT TO THE MEMORANDUM OF UNDERSTANDING, AMONG THE CO-PERMITTEES OF THE SAN DIEGO COUNTY NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM MUNICIPAL PERMIT, AND AUTHORIZING THE MAYOR TO SIGN THE THIRD AMENDMENT ON BEHALF OF THE CITY OF CHULA VISTA
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RECOMMENDED ACTION
Recommended Action
Council adopt the resolution.
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SUMMARY
On December 11, 2007, City Council adopted Resolution No. 2007-293, which approved the original Memorandum of Understanding (MOU) among the Copermittees of the San Diego County National Pollutant Discharge Elimination System (NPDES) Municipal Permit (Municipal Permit) dated November 16, 2007. Subsequently on March 18, 2010, Council approved First Amendment and later on July 9, 2014, approved Second Amendment to the MOU (Attachment 1). The MOU Second amendment will expire on August 31, 2015, and it has become necessary to amend the MOU a third time to extend its term through August 31, 2019, (or the life of NPDES Municipal Permit Order No. R9-2013-0001 plus twelve months, whichever is longer), in order to complete ongoing regional activities required by the Municipal Permit. The Third Amendment to the original MOU is included as Attachment 2. The proposed action would approve the Resolution and authorize the Mayor to sign the MOU Third Amendment on behalf of the City.
ENVIRONMENTAL REVIEW
The Development Services Director has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378(b)(2) of the State CEQA Guidelines because it involves on the approval of an amendment to the existing MOU; therefore, pursuant to Section 15060 (c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Although environmental review is not necessary at this time, as projects required by this MOU are further defined, environmental review will be required and a CEQA determination completed prior to commencing any development activities on the subject property.
BOARD/COMMISSION RECOMMENDATION
Not applicable
DISCUSSION
The NPDES stormwater permit regulations administered by the United States Environmental Protection Agency (U.S. EPA) under the authority granted by the Federal Water Pollution Control Act (Clean Water Act) 33 USCA 1251 et seq. as amended, Municipal Permit, Order No. R9-2013-0001 requires the Copermittees of San Diego County to cooperate in the implementation of regional programs. The Copermittees of San Diego County includes the County of San Diego (County), the San Diego Unified Port District (Port), the San Diego County Regional Airport Authority (Airport), and the incorporated cities of San Diego, Carlsbad, Chula Vista, Coronado, Escondido, Imperial Beach, La Mesa, San Marcos, Del Mar, El Cajon, Encinitas, Lemon Grove, National City, Oceanside, Poway, Santee, Solana Beach, and Vista (Cities). This cooperation necessitates a MOU among the Copermittees to address specific regional permit requirements, and to define associated Copermittees’ shared regional responsibilities and financial obligations.
The San Diego Regional Water Quality Control Board (Regional Board) adopted the Municipal Permit on May 8, 2013. The Municipal Permit allowed for a two-year transitional period, during which time the Copermittees were required to develop or update their regional, watershed, and local plans and programs. The City Council approved updates to Chula Vista Municipal Code Section 14.20, Storm Water Management and Discharge Control, on July 14, 2015, as part of this process. The Copermittees have cooperated under the current MOU and are on track to complete regional activities on schedule. An extension of the MOU is necessary to complete the program. The MOU Third Amendment will include a few changes to the original MOU as shown on Attachment 2, which were incorporated at the request of some Copermittees; however, those changes will not have any substantial effect on the MOU content.
A brief summary of the most significant changes proposed in this MOU Third Amendment is as follows:
o The MOU will run through August 2019 (or the life of Order No. R9-2013-0001 plus twelve months, whichever is longer). This allows the Copermittees a year beyond the anticipated expiration of the current Permit, plus two additional months after the end of FY 2018-19.
o The existing MOU established two levels of Copermittee involvement in Working Bodies, participation and representation. This Amendment merges these into a single term (representation) and specific requirements for Copermittee participation are significantly reduced. This makes participation in all Working Bodies except the Regional Management Committee (RMC) and Program Planning Subcommittee (PPS) completely voluntary. Copermittees are also no longer required to serve as Working Body chairs or secretaries.
o Meetings of the Planning Subcommittee and any Watershed Workgroup, including any closed sessions with legal counsel, will be conducted in accordance with the “Ralph M. Brown Act” (Government Code Section 54950 et seq.).
o Individual Regional Workgroups are no longer specified or described. All Regional Workgroups are now ad hoc only, and may be established or discontinued at discretion of RMC.
o Unanimous voting is now required for all cost shares (applicable only to Copermittees sharing the cost). This ensures that Copermittees cannot be voted into a cost they don’t support.
o Provisions for “Other General Programs” are removed. A corresponding change to the definitions of Regional General Programs and Watershed General Programs allows cost-sharing to occur with subsets of either group where there is a benefit to the applicable larger group.
o Regional and Watershed Working Bodies are independent of each other. This means that Watershed Workgroups do not report to the RMC or PPS.
o Two types of limitations on cost sharing are established. The first is to specifically describe the types of activities that can be jointly funded by a group. The second is to establish categorical budget limits for regional costs and for each participating Water Management Area (WMA). Under these limits, a group cannot use the MOU as a vehicle for any costs that exceed the total established amount, i.e., once the total is met other agreements would be necessary for further cost sharing.
o Specific Copermittee obligations for working body participation are removed. The exceptions are the RMC, which all Copermittees must be represented on, and PPS, which would be constituted of representatives of each of the nine WMAs.
o Provisions are added to allow any Copermittee to terminate a voluntary assignment.
o Provisions that the Copermittees agreed are either obsolete or overly-specific (e.g., by-laws, quarterly budget reporting, etc.) are removed.
o Responsibilities of the PPS are slightly expanded to allow approval of budget and work plan changes, so long as they remain within monetary limits approved by the RMC. This change is necessary because the RMC meets too infrequently to approve such changes throughout the year.
o Required meeting frequencies are removed for all but the RMC, which must meet at least annually.
o Optional Watershed Workgroups are established for cost-sharing only. These groups are not meant to supersede or replace any existing working bodies. Their purpose is to allow the sharing of costs under the MOU.
DECISION-MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is not site-specific and consequently, the 500-foot rule found in California Code of Regulations Title 2, section 18705.2(a)(11), is not applicable to this decision for purposes of determining a disqualifying real property-related financial conflict of interest under the Political Reform Act (Cal. Gov't Code § 87100, et seq.).
Staff is not independently aware, and has not been informed by any City Council member, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter.
LINK TO STRATEGIC GOALS
The City’s Strategic Plan has five major goals: Operational Excellence, Economic Vitality, Healthy Community, Strong and Secure Neighborhoods and a Connected Community. The regional activities implemented under the regional MOU supports the Healthy Community goal as it seeks to eliminate water quality pollution throughout the San Diego region.
CURRENT YEAR FISCAL IMPACT
The MOU is an agreement among the Copermittees, which describes how regional and Watershed Management Area costs are distributed. The MOU by itself does not result in current year fiscal impacts to the City; however, compliance with the Municipal Permit requires expenditures by the City. The City’s cost share budget during the current fiscal year (FY 2015-2016) authorized under this MOU may not exceed $100,004 for the Regional General Program and $103,903 for the San Diego Bay Water Management Area Program, which is budgeted from the storm water fee revenue funds.
ONGOING FISCAL IMPACT
The requested action by itself will not result in any ongoing fiscal impact to the City. However, compliance with the Municipal Permit demands ongoing program expenditures. Based on experience, with each re-issuance of the Municipal Permit, more stringent and costly requirements can be expected.
The total Shared Cost Budget authorized under this MOU may not exceed the Cumulative Limits specified for each budgeted category in Table 1 below. The City’s cumulative cost share expenditure is estimated to be $257,117 for the Regional General Program and $854,781 for the San Diego Bay WMA program. These values represent the maximum amount that may be cost-shared for each budgeted category for the duration of this MOU. Once a Cumulative Limit has been reached, the Copermittees must establish separate agreements for sharing additional costs for that budget category. The estimated annual limits shown for each fiscal year are for planning purposes only (except FY2015 2016 as explained in the Current Year Fiscal Impact section above). Where an estimated annual limit is not reached in any fiscal year, the surplus amount may be carried over into subsequent fiscal years, so long as the Cumulative Limit is not exceeded.
Table 1
Not-to-exceed Limits (Estimated Annual Spending Limits)
|
Budget Category |
FY 2015-16 |
FY 2016-17 |
FY 2017-18 |
FY 2018-19 |
Cumulative Limit |
|
1. Regional General Programs |
$1,782,597 |
$900,200 |
$1,000,200 |
$900,200 |
$4,583,197 |
|
2. San Diego Bay WMA |
$1,260,000 |
$862,000 |
$1,038,000 |
$924,000 |
$4,084,000 |
Attachments
1. Current MOU dated November 16, 2007
2. Third Amendment to the original MOU
Staff Contact: Boushra Salem, Senior Civil Engineer, Public Works Engineering, Stormwater Section