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CITY DF SAN BERNARDIND - REGlUEST FDR CDUNCIL ACTIDN
. . .
From: Stacey R. Aldstadt, General Manager
Subject: Adopt an ordinance of the City of San
Bernardino, California, adding Chapter 13.25 of the
San Bernardino Municipal Code entitled Spreading
or Extraction within the Management Zone.
Dept: Water
Date: February 10, 2006
M/CC: 3/6/2006
Synopsis of Previous Council Action:
ORIGINAL
April 2005 - Item discussed in legislative review committee.
January 10, 2006 - Item discussed in legislative review committee and it was recommended that said
ordinance be forwarded to Mayor and Council for adoption.
Recommended motion:
That said Ordinance be laid over for adoption.
Signat~ ~
Contact person: Stacev R. Aldstadt. General Manaaer
Phone:
384-5091
Supporting data attached:
Yes
Ward:
NIA
FUNDING REQUIREMENTS:
Amount: NIA
Source: (Acct. No.) Water Department
(Acct. Description)
Finance:
Council Notes: ~d
3/6/06. 4Fd3
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
On March 23,2005, the United States District Court, Central District, ordered entry of
the consent decree in the matter of City of San Bernardino v. United States of America. The
consent decree settles the City's and the state's claims arising from groundwater contamination
allegedly caused by the United States' Department of the Army. The consent decree contains a
number of provisions obligating the City (the City of San Bernardino Municipal Water
Department) to operate and maintain the groundwater contamination extraction and treatment
system (the Newmark remedy) and other related activities.
The Newmark remedy is designed to slow the spread of and treat contaminants. The
consent decree requires the City to take certain specified actions to protect the Newmark remedy
designed by the United States Environmental Protection Agency (USEP A).
Consent Decree Provisions
Under Section IX (Access and Institutional Controls), Paragraph 27.a of the consent
decree, the City has agreed to "institute a groundwater management program whereby the City
shall monitor and, where warranted by the City's best professional judgment, and, if available, the
Groundwater Model, in consultation with EPA and DTSC [Department of Toxic Substances
Control], take appropriate actions to prevent or mitigate [installation or re-equipping of extraction
wells within a prescribed area known as the Management or Permit Zone and regulate artificial
recharge within City limits]." This paragraph governs the City's obligations while the
groundwater model is being developed.
At Section IX.27.b., the consent decree provides as follows:
[The City shall within 30 days of entry of this Consent Decree] "initiate the City
legislative process for approval and adoption of a groundwater management program
consistent with the requirements of Paragraph 27.c, 27.d and 28 that requires specific,
advance written approval from the City (which approval shall be based on the City's best
professional judgment in consultation with EP A and DTSC) in order to (1) install new
wells or to reconstruct existing wells in a manner which increases their capacity if such
wells are located within the Permit Zone; (2) increase the annual volume of water spread
in the Waterman Canyon, Devil's [sic] Canyon, and Badger Canyon spreading basin; or
(3) construct any new spreading basins within the City limits located upgradient of the
Newmark and Muscoy treatment systems."
Section IX.27.c provides as follows:
[The City shall within 30 days of entry of this Consent Decree] "submit to EPA a plan
proposing to define the Permit [or Management] Zone and for a well permit program to
require applicants for permits to drill new wells or to reconstruct existing wells to increase
production capacity to demonstrate and certify, using the Groundwater Model, that the
proposed new or reconstructed well, at its maximum production, will not interfere with or
Council Staff Report March 2006
Page 1
adversely affect the integrity of the Newmark and Muscoy extraction and treatment
systems, will not increase the likelihood that contaminants will migrate past or around the
barrier wells that are part of those systems, and will not otherwise interfere with the
performance of the [Newmark remedy]."
Section IX.27.d provides as follows:
[The City shall within 30 days of entry of this Consent Decree] "submit to EPA a plan for
a permit program to regulate the spreading of water in the spreading basins located within
City limits that are upgradient of the Newmark and Muscoy extraction and treatment
systems. This program shall address, at a minimum, the spreading basins located at
Devil's [sic] Canyon, Waterman Canyon and Badger Canyon, and any expansion or
replacement of these basins, and any additional basins constructed before the completion
of the Work provided for in this Consent Decree. The regulation of spreading activities
shall be directed to assuring that any spreading of water in these basins shall not interfere
with or adversely affect the integrity of the Newmark and Muscoy Interim Remedial
Actions. The permit program will accommodate the use of these basins for flood control
purposes in order to protect public safety and to assure proper operation of the City's
supply wells and of all treatment systems."
"Upon approval by EPA pursuant to [the section on approval of plans], the City shall
implement the permit program."
Section IX.28 provides as follows:
"In addition to the above-described conditions on permit issuance, the City shall condition
the issuance of any permit issued under the permit programs described in this Section on
the grant of a right for EP A., DTSC and the City, including their contractors and
representatives, (1) of access at reasonable times to the wells or spreading basins or
related areas for the purpose of verifYing compliance with the permit; and (2) upon
reasonable notice to inspect and copy documents and records of the operations of the
permitted facilities in order to verifY compliance with the permit. Nothing in this
Paragraph shall limit EP A's or DTSC' s respective statutory and regulatory authorities,
including, but not limited to, the authority to obtain access to real property."
Proposed Ordinance
The consent decree lodged with the court appended a draft ordinance intended to meet the
obligations set forth in Section IX of the consent decree. After the draft ordinance was published
in the Federal Register, the City received a number of comments from potentially affected parties
outlining concerns about its terms.
After reviewing the comments received on the Institutional Controls aspects of the
consent decree, the City negotiated with a number of water purveyors who submitted comments.
Most of those commenting parties will be cooperating in a groundwater management program as
contemplated by the terms of Section IX, and as further discussed below, in the section entitled
Council Staff Report March 2006
Page 2
"Agreement to Develop and Adopt an Institutional Controls Groundwater Management Program
(Interim Settlement Agreement)."
The ordinance is intended to regulate specific activities (installation of new wells,
reconstruction of existing wells and artificial recharge) within the City limits and as further
delimited by the Management (or Permit) Zone. In developing the ordinance, Water Department
staff quickly determined that, at least initially, the Management Zone should be drawn
conservatively, because, at this time, there is not enough hydrological information to ascertain
with certainty whether some activities will or will not affect the remedy. The consent decree
requires the City to develop a groundwater model for use in analyzing potential impacts to the
remedy. That groundwater model will not be ready for use until mid-2006.
The ordinance is currently intended to regulate the activities of those parties that construct
new wells or modifY existing wells to increase production in the Management Zone. The
ordinance recognizes the parties to the Interim Settlement Agreement and exempts those parties
from regulation. This is because the Interim Settlement Agreement acts as a functional equivalent
to a groundwater management program for those parties, as required in Section IX.27.a, and as
more fully explained below. Therefore, the ordinance is primarily aimed at smaller producers,
usually private, having the ability to produce from the basin.
The ordinance also addresses artificial recharge in the Management Zone, attempting to
regulate the rate and volume of water spread at the upper ends of the groundwater basin to
prevent accelerating the movement of contaminants past the remedy wells. There are a limited
number of agencies involved in operation of spreading basins, including the San Bernardino
County Flood Control District, and those parties will be consulted as stakeholders.
It should be noted that the proposed ordinance, as required by Section IX, also regulates
artificial recharge. However, those activities are not normally conducted by private parties, but by
other water purveyors or the San Bernardino County Flood Control District.
It is important to note that, while the groundwater model is being developed, the
ordinance will place the burden of proof on the permittee to show its activities will not interfere
with or adversely affect the integrity of the remedy, will not increase the likelihood that
contaminants will migrate past or around the remedy wells, and will not otherwise interfere with
the performance of the remedy.
The ordinance is intended to satisfY the requirements of Sections IX27.b, IX27.c, and
IX27.d.
Water Department staff will be preparing guidance for the implementation of the
ordinance that addresses the permit conditions to be imposed, including those requirements set
forth in Section IX28.
Prior to the last review by the Legislative Review Committee, Water Department staff, in
consultation with the City Attorney's office and special legal counsel, revised provisions of the
ordinance to address some of the concerns raised by those who submitted comments to the
ordinance appended to the consent decree. Among the issues addressed were the following: (1) a
3/6/2006
Page 3
requirement for the permittee to provide a substantial insurance policy was removed; (2) the
permit duration was lengthened from 3 years to 15 years, in light of the substantial capital
investment involved in drilling new wells; (3) the Management Zone or Permit Zone was modified
to reflect geologic faulting that would naturally prevent the migration of contaminants; and, (4)
removal of a revocation of permit for "changed conditions."
At the Legislative Review Committee meeting held in April 2005, Water Department staff
recommended reference back to the Water Department by the Legislative Review Committee so
that additional modifications could be made to the ordinance. The Legislative Review Committee
agreed and referred the ordinance back to the Water Department for more work.
Since April 2005, the following additional modifications have been made to the ordinance:
1. The revised ordinance has a very precise definition of Adverse Effect, keyed to a
percentage of the Predictive Particle Tracking done by the Groundwater Model. Put
simply, a permit may be issued if the Predictive Particle Tracking method shows that the
Interim Remedy continues to achieve 95% capture of particles at all times during the life
of the permit when the Interim Remedy is operated at Design Rates.
2. If a proposed project does not achieve 95% capture, then the Project must employ
Mitigation Measures and/or Project Re-Design to assure that 95% capture is achieved
during all times during the life of the permit. Very specific definitions are supplied for
"Mitigation Measures," Predictive Particle Tracking," Project Re-Design," and used at
appropriate places in the Ordinance.
3. References to re-equipping or repairing wells in 13.25.025, paragraph B. have been
deleted to make clear that only new or reconstructed wells will require permits, not
existing wells operated normally.
4. Section 13.25.025, paragraph HA. sets forth in detail the required review of permit
applications using Predictive Particle Tracking. This provides an objective, quantifiable
means of measuring compliance and measuring Adverse Effects.
5. Section 13.25.025, paragraph I, provides an expedited and streamlined procedure for
wells to be drilled in the contaminated zone, and provides a longer permit term for such
wells, which are presumed to help speed up the remedial work. In addition, certain small
volume extractors are exempt from permit requirements if they use the water on the
overlying parcel for non -potable irrigation or sand and gravel operations, as these wells
are not expected to have a material effect on remedial operations.
6. Section 13.25.040, reporting is expanded to include a reporting requirement for certain
existing wells extracting more than 250 acre feet per month. This is to help give the
operators of the remedy data needed in case extraordinary withdrawals from an existing
well begin to affect remedial operations.
7. Section 13.25.045, revocation and emergency powers, was revised to delete a provision
allowing permit revocation because of a material change of conditions. A provision
allowing revocation for failure to comply with conditions of approval was added.
8. Section 13.25.047, was added to make clear that if an existing well, not subject to permit
requirements, materially interferes with the remedy or forces an increase in remedial
operations above design rates, the City may seek injunctive relief.
3/6/2006
Page 4
For those producers that are not part of the Interim Settlement Agreement, and until the
ordinance is adopted, the provisions of Section IX.27.a apply. During the period that Section
IX.27.a applies (while the ordinance has not yet been adopted), the Water Department will be
monitoring the levels of production through reports prepared by the Watermaster in the Western
judgment to ascertain whether there are any activities that might adversely affect the remedy.
The "Aereement to Develop and Adopt and Institutional Controls Groundwater
Manaeement Proeram (the "Interim Settlement Aereement")
As outlined above, several water purveyors submitted comments critical of the proposed
ordinance to the Department of Justice and USEP A during the public comment process. After
receipt of those comments, Water Department staff began meeting with the principals for those
purveyors in an effort to resolve the concerns that were raised.
The biggest concern for these commenting parties was the imposition of a regulatory
scheme on their activities in the basin. San Bernardino Valley Municipal Water District (Muni
District) has obligations under contracts and the Western judgment to import water for artificial
recharge. They stated concerns regarding their ability to fulfill those obligations while meeting the
requirements of the proposed ordinance. They also own two operating wells within the
Management Zone that would be regulated under the ordinance.
Western Municipal Water District is a wholesale agency that provides water to retailers in
areas of Riverside County. They were concerned as well that their ability to negotiate contracts
to store water in the basin would be compromised by the provisions of the proposed ordinance.
Other purveyors, including the City of Riverside, Riverside Highland Water Company,
East Valley Water District, West Valley Water District and the City of Colton, either have wells in
the Management Zone or intend at some time in the future to drill new wells in the Management
Zone. Their universal concern was that they would be prohibited from using their wells.
After extensive negotiations, these water purveyors entered into the Interim Settlement
Agreement (ISA), which accomplishes several things.
First, it obligates the ISA parties to meet l'.nd reach agreement on a long-term
groundwater management program. The goal of the ISA group is to produce an Institutional
Controls Settlement Agreement (ICSA) that will, among other management goals, "manage
extraction and artificial recharge to ensure the effectiveness and integrity of the Newmark
remedy." (ISA, p.lO.)
Second, during the term of the ISA and the subsequent ICSA, the parties to both
agreements are exempt from the provisions of any ordinance that is intended to regulate
groundwater extraction and artificial recharge.
Third, the ISA allows for certain pre-approved or permitted activities. Those activities are
attached to the ISA as Exhibit "B" (Exhibit B activities). Using its best professional judgment, the
Water Department has determined that Exhibit B activities will not adversely affect the Newmark
remedy. All of the Exhibit B activities have been on-going for several years, at a minimum. In the
3/6/2006
Page 5
development ofUSEP A's groundwater model used to design the remedy, the Exhibit B activities
were necessarily factored in. The Newmark Operable Unit, which was operational and functional
in 2000, has been working as designed and many of the Exhibit B activities would have been
assumed to have some influence on the Newmark au.
The Exhibit B activities are defined in a geographic area and with volumetric limits. As
long as an ISA party stays within the geographic area and within the volumetric limit, that party
may drill a new well or re-construct an existing well. In essence, the ISA functions as the
equivalent satisfying the City's obligations under Section IX.27.a.
The ISA parties agree that, except for Exhibit B activities, they will not construct new
wells or re-construct existing wells in the Management Zone during the period of time that the
parties are negotiating the final ICSA.
The ISA recognizes that a groundwater model will be developed and used by the parties in
the groun~water management program. However, the development of the final ICSA and the
Exhibit B activities will be implemented pending finalization of the groundwater model. All
stakeholder parties, including the ISA group, will have an opportunity to review and comment on
the groundwater model.
The ISA also recognizes that, if the Water Department issues a permit under the final
ICSA, while the groundwater model is not final, it must obtain USEPA's and DTSC's
concurrence.
The Water Department is submitting the Exhibit B activities to USEP A, as required under
Section IX.27.a, for review and consultation. The Water Department is also submitting a plan to
USEPA outlining the structure of the ISA, the goals of the ICSA and the ordinance, in
accordance with Section IX.27.c and IX.27.d.
In conclusion, Water Department staff believes that the requirements of the consent decree
have been met, or will be met, with the strategies outlined above.
The Ordinance was approved by the Legislative Review Committee on January 10, 2006.
Financial Impact:
The costs of implementing the ordinance will be borne by the Water Department.
Recommendation:
That said Ordinance be laid over for adoption.
3/6/2006
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ORDINANCE NO.
AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ADDING
CHAPTER 13.25 OF THE SAN BERNARDINO MUNICIPAL CODE ENTITLED SPREADING
OR EXTRACTION WITHIN THE MANAGEMENT ZONE
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
DOES HEREBY FIND:
A. That the City of San Bernardino Municipal Water Department (SBMWD) is required by the
terms of the Consent Decree entered on March 23,2005 to enact institutional controls and
implement an ordinance providing for the protection and management of the Interim Remedy
set forth in Record of Decisions and Explanation of Significant Differences prepared by the
Environmental Protection Agency; and,
B. That the SBMWD is specificaIly required by the terms of the Consent Decree to regulate the
spreading and extraction of water from the Bunker Hill Basin within the City of San
Bernardino in order to prevent or correct spreading practices or extraction operations that
could interfere with or mterrupt or degrade performance of the Interim Remedy; and,
C. That the adoption of this Ordinance is statutorily and categoricaIly exempt under the
California Environmental Quality Act pursuant to the provisions of the California Public
Resources Code Section 21080(b)(8) and Title 14, California Code of Regulations Sections
15273(a), 15301,15302,15303,15307, 15308, 15309, and 15321.
NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO DO HEREBY ORDAIN AS FOLLOWS:
SECTION 1: Chapter 13.25 of the San Bernardino Municipal Code is hereby added to read
as foIlows:
ARTICLES
13.25.010
13.25.015
13.25.020
13.25.025
13.25.035
13.25.040
13.25.045
13.25.047
13.25.050
13.25.055
13.25.060
13.25.070
Purpose
Background Pertaining to Newmark Groundwater Contamination
Superfund Site
Definitions
Permits
Approval of Permits
Reporting
Revocation and Emergency Powers
Interference by Existing Wells with Consent Decree or SOW
Consent Orders
Cease and Desist Orders
Hearing Procedures and Appeals
Violations, Remedies and Penalties
YLD.23
City of San Bernardino Municipal Water Department
Page 1 of 14
3/612006
AN ORDINANCE OF THE CITY OF SAN BERNARDINO. CAUFORNIA ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
1
Chapter 13.25
SPREADING OR EXTRACTION WITHIN
THE MANAGEMENT ZONE
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13.25.010
Purpose.
The purpose of this Chapter is to assure that activities occurring in the Management Zone,
including but not limited to development, digging, drilling, boring or reconstruction of wells, extraction
of groundwater from wells and spreading of water do not interfere with or cause pass through of
contaminants from the Newmark and Muscoy Operable Units. Activities such as well construction or
reconstruction or artificial recharge undertaken in the Management Zone shall not cause or contribute
to the migration of groundwater contaminants from the Newmark and Muscoy Operable Units to
uncontaminated areas, nor shall such activities, even at their maximum operation, tnterfere with or
adversely affect the integrity of the Newmark or Muscoy extraction and treatment systems, nor shall
they otherwise interfere with the performance of these Interim Remedial Actions at the Newmark and
Muscoy Operable Units
It is the further purpose of this chapter to assure the protection of human health and the
environment, and compliance with relevant Federal and State requirements directly associated with the
performance of the remedy.
It is the further purpose of this chapter to manage the spreading of water within the
Management Zone and manage the development, digging, drilling, boring, reconstruction of wells, and
extraction of groundwater from wells, to assure compliance with the remedial program set forth in the
RODs, Consent Decree and Statement of Work, as defined below and aid in the eventual restoration of
the aquifer to beneficial use.
It is the further intent of this Chapter to regulate activities within the Management Zone only to
the extent necessary to achieve the purposes set forth and to minimize the regulatory impacts to those
intending to spread water or develop groundwater resources in the Management Zone.
In addition to any other requirements of Chapter 13.25, the following requirements shall a:pply
to the Management Zone. Nothing contained herein shall exclude compliance with the other provisIOns
of Chapter 13.25. In the event of any conflict between the provisions of this Chapter 13.25 and any
other Chapter, the terms and provisions of this Chapter shall apply.
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13.25.015 Background Pertaining to Newmark Groundwater Contamination Superfund
21 Site.
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In 1980 the State of California performed sampling of certain wells belonging to the City of San
Bernardino Municipal Water Department ("SBMWD"). These samples disclosed the presence
of various contaminants, including trichloroethylene (TCE) and perchloroethylene (PCE).
Pursuant to Section 105 of the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 USC 9605, the United States Environmental Protection Agency
("EP A") placed the Newmark Groundwater Contamination Superfund Site ("Site") on the
National Priorities List ("NPL"), as set forth in 40 CFR Part 300, Appendix B, by publication in
the Federal Register on March 31, 1989, 54 Fed. Reg. 13296, 13301.
In late 1990, EP A commenced a Remedial Investigation ("RI") focusing on the Newmark
Operable Unit ("OU") In September 1992, EP A expanded the RI to include the Muscoy OU.
City of San Bernardino Municipal Water Department
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3/6/2006
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AN ORDINANCE OF TIlE CITY OF SAN BERNARDINO. CALIFORNIA ADDING CHAPTER 13.25 OF TIlE SAN BERNARDINO
MUNICIP AL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
G.
In March 1993, EPA published notice of the completion of the Feasibility Study ("FS") and the
Proposed Plan for interim remedial action pertaining to the Newmark au. In December 1994,
EPA published notice of the completion of the FS and Proposed Plan for interim remedial action
pertaIning to the Muscoy Ou.
EP A's determinations concerning the interim remedial actions to be implemented at the Site are
set forth in the Newmark OU Record of Decision ("ROD"), signed August 4, 1993, and Muscoy
ROD signed March 24 1995 and the Explanation of Significant Differences (ESD) signed on
August 18,2004.
On September 18, 1995, EP A, the State of California and SBMWD entered into a Cooperative
Agreement providing, in part, for SBMWD to perform the operation and maintenance (O&M)
of the remedial action set forth in the RODs, and for EP A to fund the O&M.
In September 1996, the SBMWD commenced an action a~ainst the United States Army
pursuant to Section 107 and 113 of CERCLA seeking to obtaIn its costs for response and the
operation and maintenance of the Newmark and Muscoy OUs [City of San Bernardino v. United
States of America, Dept. of the Army, et al. USDC Case No. CV 96-5205 MRP (JGx)
consolidated with USDC Case No. CV 96-8867 MRP (JGx)].
Commencing in June 2000, SBMWD, State of California Department of Toxic Substance
Control ("DTSC") and EP A commenced negotiations to resolve various issues relating to the
Site au, Newmark OU and Muscoy au. On March 23, 2005, the Consent Decree
memorializing the settlement was entered by the Court.
The Consent Decree requires, in part, for the City of San Bernardino (City) to implement an
ordinance providing for l'rotection and management of the Interim Remedy set forth in the
RODs and ESD and specifically for the City to regulate the spreading and extraction of water
from the Bunker Hill Basin within the City in order to prevent or COITect spreading practices or
extraction operations that could interfere with or interrupt or degrade the performance of the
Interim Remedy.
The protection of groundwater resources within the City is of utmost importance to the City and
SBMWD. The public health, safety and general welfare of the people of the State of California
and of the more than 600,000 residents of the Counties of San Bernardino and Riverside who
depend upon the continued availability of potable groundwater from the Bunker Hill Basin is
paramount. The public health, safety and general welfare of the people of the State of
California and the residents of the City of San Bernardino require assurance that spreadin~ of
water and extraction of groundwater do not interrupt or mterfere with the constructIOn,
operation and maintenance of the Interim Remedy or degrade the performance of the Interim
Remedy.
H.
1.
1.
K.
The Interim Remedy requires, in part, the extraction of contaminated groundwater from the
Bunker Hill Water Basin, and within the Newmark and Muscoy OUs, and treatment of the
groundwater to meet all State and federal permits and requirements for drinking water and
delivery of treated water to SBMWD for distribution to the public through its potable water
system, or in the alternative, for recharge to the aquifer
Inhibitor wells extract groundwater The inhibitor wells are located at the downgradient end of
the Management Zone. The inhibitor wells currently in place were designed to function based
upon hydrological factors relating to the flow of water through the basin. The rate of flow
through the basin may increase when additional spreadin~ occurs at spreading basins located
upgradient from the inhibitor wells. Another factor affectmg flow rate is the amount of water
flowing through the basin and either extracted or flowing out of the basin. When extraction of
groundwater occurs downgradient or to the side of Management Zone, or the capacity of
L.
City of San Bernardino Municipal Water Department
Page 3 of 14
3/612006
AN ORDINANCE OF THE CITY OF SAN BERNARDINO. CALIFORNIA. ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIP AI.. CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MAN AGEMENT ZONE
1 existing downgradient or adjacent wells are increased, the rate of flow may increase. Should an
increase in the flow of water occur beyond the capacity of the inhibitor wells, the inhibitor wells
2 may not be able to contain and extract the additional contaminated water before it enters the
aquifer downgradient from the inhibitor wells.
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M.
As required by the Consent Decree, the City must exercise its police power to protect the public
welfare of the City by adopting reasonable regulatory measures.
5 13.25.20 Definitions.
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c.
"Adverse Effect," and "Adversely Effect," Any proposed new or reconstructed well, or any
water spreading (artificial recharge) activity, forecast to reduce particle capture (as measured
using Predictive Particle Tracking) below 95% at any time in the proposed future permit term,
shall be presumed to have an adverse effect under this Ordinance. This presumption may be
rebutted by Project Re-design or Mitigation Measures to restore particle capture percentages,
over a hydrologic cycle representative of long-term hydrology and extending for a term at least
as lon~ as a proposed permit term, to at least 95% at all times, with the proposed project
operatmg at the full permitted capacity for the life of the proposed project.
Applicant": The person or entity submitting the application addressed in this chapter. The term
"Applicant" shall also include the person or entity granted any permit or permiSSIOn pursuant to
the terms of this chapter, and shall also include all licensees, lessees, agents, contractors,
operators, employees, officers, directors, representatives, attorneys, successors, assigns, heirs
and other persons or entities exercising the rights of the permit through applicant. The term
"Applicant" shall not include a Party to the ICGMP that is exempt from the provisions of this
Ordmance as provided in section 13.25.025(G) below
"Aquifer": A geologic formation that stores, transmits and yields significant quantities of water
to wells and springs.
"Barrier well": See "Inhibitor well" below.
"Basin": The Bunker Hill Basin
"City": The City of San Bernardino.
"Code": The San Bernardino Municipal Code.
"Contamination" means any impairment in the quality of water of the City by wastes or other
degrading elements in amounts or concentrations violating any federal or state drinking water
standard or applicable permit limit for the water produced by the Interim Remedy, or otherwise.
"Day" means a calendar day.
"Department" means the San Bernardino Municipal Water Department.
"DOHS": State of California Department of Health Services
"DTSC": State of California Department of Toxic Substance Control.
"EPA": The United States Environmental Protection Agency.
"Extraction": The process of taking water from the groundwater aquifer by way of wells and
other appurtenances
City of San Bernardino Municipal Water Department
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO. CALIFORNIA ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIP AL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
"FS": The Feasibility Studies performed by EPA for the Site and completed in March, 1993
and December 1994.
"General Manager" means the San Bernardino Municipal Water Department General Manager
or designee.
"Groundwater": All water beneath the surface of the earth within the zone below the water
table in which the soil is saturated with water.
"Groundwater Model" or "Model" means the mathematical calculations required to be produced
pursuant to the Consent Decree and SOW addressing the physical characteristics of the
groundwater in the Bunker Hill Basin under various conditions. The Groundwater Model is a
three-dimensional numerical model that will account for changes in water levels over time, and
will account for spatial variations in underground hydrologic parameters. The Groundwater
Model can be used to perform Predictive Particle Tracking by simulating future groundwater
levels in three dimensions over time.
"Inhibitor Well": The wells designed by EPA for the extraction of water from specific areas of
the basin and identified in the RODs.
"Management Zone": The geographic area depicted and defined on Exhibit "A" and Exhibit
"B", on file in the office of the General Manager of SBMWD. The "Management Zone" is
referred to in the Consent Decree as the "Permit Zone".
"Mitigation Measures" mean readily enforceable and verifiable steps taken to reduce or
eliminate Adverse Effects forecast for a proposed new or reconstructed well or water spreading
(artificial recharge) project by Predictive Particle Tracking. Mitigation Measures can include,
but are not limited to:
1. locating an additional well or wells in the contaminant plume to counteract migration of
contaminants past the inhibitor wells;
2. readily enforceable and verifiable pumping restrictions;
3. physical reductions in the size of well equipment to limit the well capacity.
"NPL": National Priorities List.
"aU": Operable Unit.
"Person": Any state or local government agency, private corporation, firm, partnership,
individual, group of individuals, organization, association, or to the extent authorized by law,
any federal agency.
Predictive Particle Tracking means the use of the Groundwater Model, with the inhibitor wells
operating at Design Rate under the SOW, over a representative hydrologic cycle, including
representative wet and dry periods for the Bunker Hill Basin, to determine the 'percentage of
particle capture achieved at all times over the life of the proposed project, tncludins any
applicable Mitigation Measures or Project Re-Design, with the proposed project operatmg at
full permitted capacity for the entire permit term. .
"Project Re-Design" means verifiable and enforceable changes in the physical design,
equipment, or location or volume of a proposed water spreading (artificial recharge) or new or
reconstructed well project intended to reduce or eliminate Adverse Effects forecast for a project
evaluated with Predictive Particle Tracking.
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO. CALIFORNIA. ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
"RI": The Remedial Investigations performed at the Site for the Newmark Operable Unit and
the Muscoy Operable Unit.
"Record of Decision" or "ROD": The Record of Decision for the Newmark Operable Unit
signed August 4, 1993 and the Record of Decision for the Muscoy Operable Unit SIgned March
24, 1995 settin~ forth the provisions of the Interim Remedy to be Implemented in addressing the
contamination Identified in RIlFS.
"Remedy" or "Interim Remedy": The course of action set forth in the RODs, Statement of
Work (SOW), and Consent Decree (CD) relating to the operation and maintenance of the
remedial action specified in said documents.
"SBMWD": The San Bernardino Municipal Water Department.
"Site": The Newmark Groundwater Contamination site identified in 40 CFR Part 3rd
Appendix B, published in the Federal Register on March 31, 1989,54 Fed. Reg. 13296, 1330l.
"Spreading Basin": Areas, facilities and portions ofland set aside for the deposit of water with
the intent to allow the water to percolate into the groundwater basin, as depicted on Exhibit "C",
attached hereto and incorporated by this reference and on file in the office of the General
Manager of SBMWD.
"Statement of Work" (SOW): The document incorporated into the Consent Decree, referenced
in Section 13.25.015 H., setting forth the implementation of the remedial action to be performed
by SBMWD, EP A and DTSC relating to the Newmark OU and Muscoy ou.
"Well" or "water well" means any artificial excavation constructed by any method for the
purpose of extracting water from, or injecting water into the ground. This definition shall not
mclude:
1. Oil or gas wells, or geothermal wells constructed under the jurisdiction of the California
State Department of Conservation, except those wells converted to use as water wells; or
2. Wells used for the purpose of:
13.25.025
a. Dewatering excavation during construction, or
b. Stabilizing hillsides or earth embankments.
Permits.
c.
Spreading. Unless a permit issued by SBMWD pursuant to this Chapter is first obtained, it shall
be unlawful for any person, as prinCIpal, agent or employee, to spread water (artificial recharge)
within the Management Zone.
Groundwater Extraction. Unless a permit issued by SBMWD pursuant to this Chapter is first
obtained, it shall be unlawful for any person to develop, dIg, or drill a new well, or to
reconstruct an existing well in a manner to increase its maximum capacity over its maximum
capacity on March 23, 2005, or the most recent operation if the well was inoperable on March
23, 2005, or to allow the development, digging, drilling, or reconstruction of any well on land
located within the Management Zone.
Aphlication for Permit. An application for a permit shall be filed by the landowner or Applicant
Wit the SBMWD on a form provided by SBMWD. Applicant has an affirmative duty to
provide accurate representations of all material facts in the application.
City of San Bernardino Mwticipal Water Department
Page 6 of 14
3/612006
AN QIrnINANQ" QF TH" QITY QF ~AN R"RNARDlNQ, QAWFQRNIA. Al}I)INQ QUAPTl\R IU$ PI' TH" ~AN R"RNAlWINQ
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
Contents of Application for Permit for Extraction. The contents of the Application for Permit
for Extraction shall include, as a minimum, all of the items set forth in Section 13.24.250 and
the elevations of proposed screening intervals, and such other information as SBMWD
determines necessary and appropriate to evaluate the application and assure that the proposed
extraction will not interfere with, compromise, endanger or detrimentally or Adversely Affect
the Interim Remedy or otherwise cause or contribute to the movement of contaminants to areas
downgradient of the Inhibitor Wells, or increase the likelihood that contaminants will migrate
past or around these wells, or interfere with or Adversely Affect the Interim Remedy.
Contents of A lication for Permit for S readin . The contents of the Application for Permit
for Spreading s all include, as a minimum, the name of the person proposing to conduct the
spreading, the time period over which the spreading is proposed to occur, the volume, location
and such other information as SBMWD may determine necessary and appropriate to evaluate
the application and assure the proposed spreading wilI not interfere with, compromise, endanger
or detrimentally affect the Interim Remedy or otherwise cause or contribute to the movement of
contaminants to areas downgradient of the Inhibitor Wells..
Fees. SBMWD may levy a fee for review of the Application for Permit and monitoring of
compliance with the permit. The fee shall be established by resolution of the SBMWD Board of
Water Commissioners.
Exemption from Permit and Related Requirements for Institutional Controls Groundwater
Management Program (ICGMP) Members. By agreement effective January 1,2005, a number
of local water agencies have entered into the agreement entitled Agreement to Develop and
Ado)?t an Institutional Controls Groundwater Management Program. That program currently
proVides for short-term restrictions on production and spreading to protect the Interim Remedy
while a long-term agreement is negotiated. The long-term agreement will be as protective of
the Interim Remedy as this Chapter, and projects which are subject to the ICGMP or successors
to that Agreement will be reviewed and approved by the ICGMP Parties pursuant to those
agreements. As long as a party proposing to construct or reconstruct a well or to spread water
for artificial recharge is a member in good standing of the ICGMP under the agreement
effective January 1, 2005, or successors to that Agreement, that Party's project(s) will be
exempt from the provisions of this Ordinance and Will be reviewed and approved pursuant to
the ICGMP or successors to that Agreement rather than this Ordinance. Compliance with
ICGMP requirements shall be deemed to be full compliance with this Chapter. Non-compliance
with ICGMP requirements shall be addressed pursuant to remedies provided for in the ICGMP
Agreement or successors to it. In the event the ICGMP expires or lapses while this Chapter is in
force, or a Party with an approved spreading or well project withdraws from the ICGMP, any
Mitigation Measures, Project Re-Design measures, access and monitoring requirements, and
parallel undertakings imposed or agreed to by the Party under the ICGMP shall become fully
enforceable by the City under this Chapter.
Review of Application.
1.
The review process of the application will commence when SBMWD determines it has
received from the Applicant all documents and necessary information to commence its
review.
3.
Subject to timely participation by EP A and DTSC, SBMWD shall endeavor to complete
the review within One Hundred Twenty (120) days from Notice by SBMWD to
Applicant that the application is deemed complete.
The completed application shall be subject to review and comment by the EP A and
DTSC. SBMWD shall provide to EP A and DTSC a copy of its proposed decision, after
which EP A and DTSC, pursuant to the Consent Decree, shan have a minimum of thirty
(30) days to comment on the proposed decision. If either EP A or DTSC object in
2.
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA. ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
writing to the permit application, proposed decision or modeling work on which a
proposed permit decision IS based, the SBMWD, EP A and DTSC, shall consult for up to
sixty (60) days in order to resolve any material differences among them over such
matters. Consistent with the Consent Decree, the SBMWD shall not issue a permit over
the unresolved objections of either EP A or DTSC.
4. Except as provided below, Applications shall be evaluated using the Predictive Particle
Tracking in order to determIne if there is an Adverse Effect. Once approved by EP A,
the Groundwater Model will be used for Predictive Particle Tracking, to forecast particle
capture through a hydrologic cycle reasonably representative of long-term hydrology
lasting for at least the proposed permit term, which hydrologic cycle shall include a wet
cycle and a dry cycle, based on historic hydrologic data for similar periods, and which
shall assume that the Inhibitor Wells are operated at Design Rates. Mitigation Measures
and any Project Re-Design are to be evaluated usin~ the same method. No proposed
well construction or reconstruction, or future spreadIng operation, shall be approved if
the project is forecast to have an Adverse Effect unless such Adverse Effect is
elimInated through readily enforceable Mitigation Measures or Project Re-Design.
Permit Applications for Extraction Wells in Plume Areas and for Irrigation Use on Overlying
Land.
1. Applications to drill in the areas shown on the attached map, Exhibit C to this Chapter,
are strongly encouraged. The boundaries of these areas correspond to the City's
estimates of areas within the Newmark and Muscoy contaminant plumes where
extraction and treatment of water from these areas will slow the spread of contaminants.
2. For wells proposed in the designated areas shown in the map, the Applicant and the City
may use a streamlined modeling process, to be developed by the City, to model the
projected hydraulic impacts of the proposed extraction well in the proposed location
upon the operations of the inhibitor wells. Such application shall clearly demonstrate
that:
a. the well will conform to standards for structural integrity;
b. the water it produces will be properly treated; and
3.
c. the well is screened at a depth and in such a manner that its construction and
operation will not cause the migration of contaminants between different
confined intervals of the aquifer.
The City shall set the permit term for such wells in the designated areas for not less than
15 years, with the option, in the City's discretion, to set the permit term for up to 30
years.
4.
Wells used by overlying landowners solely for non-potable irrigation or solely for sand
and gravel operations on such land, may be replaced on the same parcel without a permit
under this Chapter provided that no such overlying landowner shall extract more than
250 acre feet per year from the same or contIguous parcels without a permit issued
pursuant to this Chapter.
The City recognizes that the wells listed in Exhibit D by Assessor Parcel Number (APN)
have been used by the overlying landowners solely for non-potable irrigation on such
land. These landowners may replace these wells on these properties without making the
modeling demonstration required by this Chapter provided that such Applications
clearly demonstrate that:
5.
City of San Bernardino Municipal Water Department
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIP AL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
a.
the water it produces will continue to be used only for non-potable irrigation or
sand and gravel operations on the land, or contiguous parcels of the same
landowner, where the well is located;
the well is constructed and screened in such a manner that it will not cause
migration of contaminants between different confined intervals of the aquifer,
provided, however, that if the replacement well is screened insubstantially the
same interval as the well it replaces, the replacement well shall be entitled to a
rebuttable presumption of compliance with this condition; and
that extractions shall not increase by more than 25% over the maximum annual
production and extraction rates for the last ten years, as shown by
contemporaneous documentary evidence or by an Edison Pump Test and review
of electrical consumption.
b.
c.
Approval of Permits.
Standard of Review. Except as provided above, a permit may be granted for a period of up to
fifteen (15) years with or without conditions under the provisions of this chapter only if the
Applicant demonstrates that the proposed extraction or spreading and method of operation is not
forecast to cause an Adverse Effect when evaluated using the Predictive Particle Tracking, and
will not interfere with, compromise, endanger or detrimentally affect the Interim Remedy, or
cause the City to be in potential violation or non-conformance with the SOW, Consent Decree
or RODs, or EP A or DTSC approved plans adopted thereunder.
Prior to the completion of an updated Groundwater Model the Applicant shall bear the
burden of demonstrating through the use of engineering and other satisfactory scientific
data that the proposed extraction or spreading will not cause an Adverse Effect and will
not-interfere with, compromise, endanger or detrimentally affect the Interim Remedy.
After an updated Model has been completed, the Applicant shall bear the burden of
demonstratmg through the use of the Predictive Particle Tracking and other satisfactory
scientific evidence that the proposed extraction or spreading is not forecast to cause an
Adverse Effect, and will not interfere with, compromise, endanger or detrimentally
affect the Interim Remedy.
Conditions of Approval.
1.
2.
1.
In the event the application is al?proved, EP A, DTSC and SBMWD shall have the right
to condition approval upon MitIgation Measures, Project Re-Design, Of other remedial
activities to be performed by Applicant. EPA, DISC or SBMWD may require
Applicant to prepare a mitigatIon ;:>f remedial plan subject to approval by EP A, DTSC
and SBMWD prior to issuance of the permit.
If Mitigation Measures, Project Re-Design, or remedial activities are required as a
condition of the issuance ofa permit, SBMWD may require Applicant to post a bond of
sufficient value to assure compliance with the mitigation or remedial activities.
2.
3.
Upon approval of the al?plication, with or without Mitigation Measures, Project Re-
Design, or remedial actiVIties, and after the posting of a bond, if required, SBMWD shall
issue a permit.
The approval and issuance of a permit shall be subject at all times to the monitoring of
Applicant's activities and suspension or revocation of the permit if it is determined by
4.
City of San Bernardino Municipal Water Department
Page 9 of 14
3/6/2006
AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
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SBMWD, EPA or DTSC that Applicant's activities interfere with, compromise,
endanger or detrimentally affect the Interim Remedy.
The issuance of a permit shall be conditioned on the grant to EPA, DTSC and the City,
including SBMWD, their contractors and representatives, of access to the wells or
spreading basins or related areas for the purpose of verifying compliance with the
permit, and upon reasonable notice to inspect and copy documents and records of
Applicant's operations of the permitted facilities.
Misrepresentation or failure to disclose material facts in the application shall be grounds
for denial of the application.
The aperoval and issuance of a permit shall be conditioned upon Applicant
indemnitying, defending, and holding City and SBMWD harmless from any and all
claims, causes of action, injury to person or property and enforcement proceedin~s
arising from or related to the Application for Permit, property subject to the pernut,
work to be undertaken relating to the permitted property, including work not the subject
of the permit or any other matter related to the permit or granting of the permit,
including but not limited to any costs incurred by SBMWD or City from any contest to
the issuance of the permit.
Denial of Ap~ication. SBMWD shall deny the application if it determines that the standards of
this Chapter ave not been attained or if either SBMWD, EPA or DTSC determines that the
proposed project is forecast to cause an Adverse Effect which is not eliminated by Mitigation
Measures or Project Re-Design or will interfere with or adversely affect the integrity of the
Newmark and Muscoy extraction and treatment systems, or will increase the likelihood that
contaminants will mi~rate past or around the barrier walls that are part of those systems or will
otherwise interfere with the performance of the Interim Remedial Actions, or cause the City to
be in potential violation or non-conformance with the SOW, Consent Decree or RODs, or any
plan approved by EP A or DTSC in order to implement those documents. SBMWD shall
provide to Applicant a copy of the written objections made together with any additional written
statement of reasons by EP A, DTSC and/or SBMWD for disapproval of the permit. An
Applicant denied a permit may appeal the decision pursuant to Section 13.25.060.
5.
6.
7.
C.
18 13.25.040
Reporting
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Reporting by Applicants. A condition of each and every permit shall be the requirement that the
Applicant proVide, at least quarterly, regular written reports to SBMWD of water levels,
chemistry and other information affecting water quality deemed appropriate by SBMWD. The
SBMWD may specify forms for such reports and such forms shall be used by Applicant to
comply with the provisions of this section. Such reports shall require Applicant to perform
momtoring, sampling and record keeping of any wells that are the subject of the permit,
including the amount, rate and timing of extraction or spreading and the quality of water being
extracted or spread, including, but not limited to, concentrations of perchIoroethylene (PCE),
Trichloroethylene (TCE), Freon and other water quality related concentrations specified by
SBMWD. Upon receipt of any report requested or required by this chapter, SBMWD may
require a follow-up report of additional data and/or information.
Applicant shall keep records of all activities relating to the operation of wells and/or spreading
activities, including all sampling results and flow data. Such records shall be available for
inspection and copying by SBMWD, EPA and DTSC upon forty-eight (48) hours notice. These
records shall be maintained for a period of not less than five (5) years. The period for retention
of records shall automatically be extended for any period of litigation between SBMWD, the
City of San Bernardino, EP A and/or DTSC and ApplIcant.
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City of San Bernardino Mtmicipa] Water Department
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
Reporting by Non-Applicants. Every person, except Parties to the ICGMP described in section
13.25.025(G) above, spreading or extracting more than 250 acre-feet in any month shall report
the amount of such spreading or extraction to the City within ninety (90) days of the close of the
calendar year quarter in which such spreading or extraction occurred. Said report shall be
submitted under penalty of perjury. The SBMWD may specify forms for such reports and such
reports shall be used to comply wIth the provisions of this section.
Revocation and Emergency Powers.
If there is an immediate and serious threat to the Interim Remedy, and its performance in
accordance with the SOW, Consent Decree or RODs, and if SBMWD believes it may be due in
whole or in part to Applicant's operations, SBMWD may order Applicant to cease or reduce its
operations and show cause why the permit should not be revoked, modified or restricted.
In addition to the provisions set forth above, the permit may be revoked upon the determination
of the SBMWD General Manager of any of the following:
1.
2.
Misrepresentation or failure to disclose material facts in the application.
Falsifying or making misrepresentations on any reports submitted to SBMWD, whether
as part of the application, as a condition of the permit or as submitted voluntarily by the
Applicant.
Tampering with monitoring equipment subject to the permit.
Refusing or obstructing SBMWD or its designee, or EP A or DTSC, or their designees'
timely access to the permitted sites and operations, and records of those operations.
3.
4.
5.
6.
7.
8.
Failure to pay fines.
Failure to meet compliance schedules.
Failure to comply with conditions of approval.
Failure to file timely reports or to respond to requests for reports, sampling data,
monitoring activities or cooperation with the Interim Remedy for the Newmark
Superfund Site.
In the event the activities of the Applicant, or Applicant's agents, contractors, licensees, lessees
or employees are deemed by SBMWD to interfere with or adversely affect the integrity of the
Newmark and Muscoy extraction and treatment systems, or will increase the likelihood that
contaminants will migrate past or around the barrier wells that are part of those systems or will
otherwise interfere with the performance of the Interim Remedy, SBMWD may revoke or
suspend the permit and compel Applicant to cease all activities covered by the permit until
either a hearing is held before the Board of Water Commissioners pursuant to Section
13.025.060 below for Applicant to demonstrate why the permit should not be modified or
revoked, or Applicant and the General Mana~er reach a mutually acceptable resolution. In all
other circumstances, Applicant shall be adVised in writing of any non-compliance with the
permit or other condition that may warrant a modification of permit conditions or revocation of
the permit, and Applicant shall be afforded the opportunity for a hearing before the Board of
Water Commissioners pursuant to the provisions of Section 13.25.060, below, to present any
evidence as to why the permit should not be modified or revoked.
City of San Bernardino Municipal Water Department
Page 11 of 14
3/612006
AN ORDINA."ICE OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
1 13.25.047
Interference by Existing Wells with Consent Decree or SOW
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In the event an existing well, not subject to the Permit requirements of this Chapter, is operated
in a manner which materially interferes with the City's compliance with the provisions of the Consent
Decree or SOW, or requires an increase in operating rates above Desi~n Rate in order to maintain
compliance with the requirements of the Consent Decree or SOW, the CIty may halt, abate, or reduce
such activities by injunction from the San Bernardino County Superior Court, or by the United States
District Court for the Central District of California, acting pursuant to the U.S. District Court's
retention of jurisdiction over Institutional Controls in paragraph l.b, page 11, lines 6-19 of the Consent
Decree. ThIS provision is in addition to, and not in derogation of, the City's other statutory, equitable,
and common law remedies.
7 13.25.050
Consent Orders
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The SBMWD may enter into consent orders, assurances of voluntary compliance, or similar
arrangements establishing an agreement with any person responsible for non-compliance withJhe
provisions of this Chapter. Such arrangements will include specific action to be taken by the person to
correct any non-compliance and shall be enforceable in a court of competent jurisdiction.
10
13.25.055.
Cease and Desist Orders
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If SBMWD finds that a person has violated any provision of this Chapter, or a permit, or the
person's activities pose an immediate and serious threat to the Interim Remedy, and that it is likely the
person will continue with such violation or detrimental activities, SBMWD may issue an administrative
order directing such person immediately to cease and desist from such conduct and to take all actions
necessary to comply fully with the order. If the person fails immediately to comply with such an
administrative order, that person shall be subject to criminal and civil liability in addition to whatever
civil liability the person may have been subject to as a result of the conduct that prompted the issuance
of the cease and desist order.
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Hearing Procedures and Appeals.
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A.
In the event SBMWD denies an application, imposes or materially modifies a condition of
approval that is/are unacceptable to Applicant, or suspends or revokes a permit, an appeal may
be commenced by Applicant.
All appeals must be filed in the office of the SBMWD General Manager within fifteen (15) days
of any denial, approval with conditions, suspension or revocation. The Appeal filed with
SBMWD shall include the name of the Applicant, name, address and telephone number of the
person representing applicant, Assessor's Parcel Number (APN) or other description of property
Involved, any identifYIng case number or application number issued by SBMWD; the baSIS for
the appeal, the date and signature of the Applicant.
All appeals shall be heard by the SBMWD Board of Water Commissioners during their regular
meetIngs. The burden of proof at such hearing shall be upon the Applicant. Following the
hearing the Board of Water Commissioners shall issue its decision. Said decision shall be
deemed a final administrative decision. Upon rendition of any adjudicatory administrative
decision by the SBMWD Board of Water Commissioners, notice shall be given to the parties
that the time within which judicial review must be sought is governed by the provisions of
Section 1094.6 of the California Code of Civil Procedure
B.
c.
D.
Any issue relating to the Consent Decree or SOW may, at the discretion of the SBMWD, be
adjudicated in the United States District Court for the Central District of California, including
the right of the SBMWD to remove any action initially brought in a California trial court.
City of San Bernardino Municipal Water Department
Page 12 of 14
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AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ADDING CHAPTER I3.2S OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT ZONE
1 13.25.070
Violations, Remedies and Penalties.
2 A.
3
Any person violating any provision of this chapter or any condition ofa permit shall be guilty of
a misdemeanor, punishable by a fine not exceeding $1,000.00 per violation, and/or by
imprisonment not exceeding six months for each violation. Each day a violation occurs may be
deemed a separate violation.
Notwithstanding anything to the contrary contained herein, and in addition to any other
penalties, fines or other action, the SBMWD Board of Water Commissioners may order the
payment of damages and civil penalties not to exceed $10,000.00 per day and actual dama~es
for any violation of any provisIOn of this chapter. Said penalties shall be deemed to be CIvil
penaltIes and may be imposed in addition to any criminal penalties.
In the event of any violation of any provision of this chapter, and in addition to any other
remedies, at the sole and exclusive discretion of SBMWD, the permit may be revoked.
A violation of any provision of this ordinance or any permit provision or condition shall be
deemed to be a public nuisance.
City of San Bernardino Municipal Water Department
Page 13 of 14
3/6/2006
AN ORDINANCE OF THE CITY OF SAN BERNARDINO, CALIFORNIA. ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION WITHIN THE MANAGEMENT WNE
1 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
2
3
4
5
meeting thereof, held on the
day of
Common Council of the City of San Bernardino at a
. 2006, by the folIowing vote, to wit:
COUNCIL MEMBERS
6 ESTRADA
7 BAXTER
8 MCGINNIS
9 DERRY
10 KELLEY
11 JOHNSON
12 MCCAMMACK
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
AYES
NAYS
ABSENT
ABSTAIN
Rachel Clark, City Clerk
day of
,2006.
The foregoing Ordinance is hereby approved this
Approved as to form
and legal content:
JAMES F. PENMAN
City Attorney
By: r11N-. 1. [~-?y~
()
Patrick 1. Morris, Mayor
City of San Bernardino
City of San Bernardino Municipal Water Department
Page 14 of 14
3/6/2006
EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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/
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF SAN BERNARDINO,
CALIFORNIA, ADDING CHAPTER 13.25 OF THE SAN BERNARDINO
MUNICIPAL CODE ENTITLED SPREADING OR EXTRACTION
WITHIN THE MANAGEMENT ZONE.
EXHIBIT D
County Well Recordation Numbers
APNs
3601925
0153351170000
0153351171001
0150161120000
0150154140000
0272161120000
0272161070000
3600119,3600742,3600743
,~ ..-...,-.
,~
',' . _ 1!.XIllD1..t: A
~: : * *'F~R OFFICE USE OHL Y - HOT,A PUBLIC DOCUMENT** ,c',
" ~{';,~"t~- :1. --:',~jT/,:~~:: :--;{;11;;:,.' '-'--~;fA~~I-::" - ~;:'~':'~~'1~~f_~!;,~'t;~.~:;~;.;:;~:-'
....' .' . "cm OF SAN BERNARDINO :'CITY CLERK'S OFFICE vN'~_,~':'
. .,.. RECORDS & INFORMATION MANAGEMENT PROGRAM
AGENDA ITEM TRACKING FORM
Meeting Date/Date Adopted: ~~o /0 (,,? Item No, 22-
Resolution/Ordinance No. ;1 - ) 2- 2- ( Ordinance Urgency: Yes /~')
Effective Date: '11:2010" Termination/Sunset Date: 4/.->
Vote: Ayes: / - 7 Nays: ~9
,
...p--' Absent:B--
0("
Abstai""
Date Sent to Mayor:
Date of Mayor's Signature: 2./
Date Summary Sent to Attorney: '3
D~ 'ob'.hod, !:l ~ ~
Meeting Type:~_ ~
Continued Fromn-61& Item No.
Date of Clerk's Signature:
Date Summary Returned
3/.28/0(.
I I
Date Returned from Mayor:
Date Seal Impressed:
JI z,Jh{.;,
/
Exhibits Complete & Attached to Resolution/Ordinance:
Reminder Letter Sent:
Rem i nder Letter Sent:
Rem i nder Letter Sent:
Request for Council Action & Staff Report Attached:
Notes: JvI ~-<f" ~ -,
_ L3/0("
I f ,peL
To Whom:
Date Sent for Signature:
Expiration Date:
Copies Distributed To:
. c' /l -/J
Yes
No
Ready to File: t. ~j
00C1JMENT LOCATION:
roRMSfAllflda 11Im Tradcifta Fomt~CC FomtNo. 111 ~Lasc ~ 12A)4/19lJ6
Date:
3!~?JD"
! I