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HomeMy WebLinkAbout21-Water Department ''J . II' .. . CITj OF SAN Bl!Rr6MDINO - , REQUEST ~ COUNCIL ACTION From: Bernard C. Kersey, Ex-OffiCf\eC'D.-AoMt.. Secretary Board of Water COIIIIIlissioner1Sll9 MAR -I AM 9' 08 2/28/89 City of San Bernardino Wastewater Treatment Plant Current and Future Capacity and Outside City Service Dept: Date: Synopsis of Previous Council action: January 17, 1989. Mayor and Council requested a luncheon workshop with the Board of Water Commissioners to discuss outside city sewer service. Addi- tionally, the Board of Water Commissioners was to develop a report to deter- mine current and future sewer capacity at the Wastewater Treatment Plant for allocation to property outside the corporate boundaries of the cities of San Bernardino and Loma Linda, and the area annexed to the East Valley Water District. The boundaries shall be the projected service area by the year 2000 set forth in the City of San Bernardino Wastewater Facilities Plan Project Report of 1980. ~-.ded motion: ---_.._~_._-- That tha City of San Bernardino Waatewater Treatment Plant CUrrent and Future Capacity Report be receiveel and filed: that the Water Board hold a public hearing reqarding the r.~ndationa that (1) the allocation of sewer capacity to area. out. ide the City liait. not exceeel 1.48 MaD through the ~ 2000: and (2) that the specific rcommendeel allocations be ..tablish.d as follows: PERIOD EDU'S GALLONS PER DAY 1989-1991 5'0 148,000 1991-1994 88. 222,000 1994-1997 2,211 555,000 1997-2002 ~ 555.000 5,846 1,480,000 Contllct penon: R"Tnl'Trl K"T"..Y Phone: 384-5393 Supporting dlltll attached: FUNDING REQUIREMENTS: Yes Ward: All Amount: N/A Source: (Acct. No.) (Acct. DescriDtionl Fin8l'lce: Council Notes: ~I ~ITi OF SAN BER&DINO - REQUEST ~R COUNCIL ACTION STAFF REPORT The report requested by the Mayor and Common Council at their January 17, 1989 meeting has been prepared and approved in concept by the Board of Water Commissioners. The report provides information regarding existing capacity at the Wastewater Treatment Plant and future projects which will increase the treatment plant's capacity. The report also provides information regarding the total estimated wastewater flows that could be generated and flow to the plant. The issue of outside city sewer service is to be discussed at a workshop with the Mayor and Common Council and the Board of Water Commissioners to be held March 20, 1989. The report is attached. '7l!;._n.,&A. . . . -"I ,t"" ..-j - - o o CITY OF SAN BERNARDINO WASTEWATER TREATMENT PLANT CURRENT AND FUTURE CAPACITY This report has been prepared to analyze the current and future Wastewater Treatment Plant capacity. The analysis reviewed the current and future land uses within the Waste- water Treatment Plant's projected service area by the year 2000, as set forth in the City of San Bernardino Wastewater Facilities Plan Project Report of 1980. Several reports and documents were reviewed and analyzed in order t~ prepare this report, including: . City of San Bernardino General Plan Update - Land Use Alternatives Working Paper East Valley Water District Sewage Collection System Master Plan - 1984 . . City of Loma Linda Sewage Collection System Master Plan - 1985 . City of San Bernardino Wastewater Treatment Plant Focused Facilities Master Plan - 1987 . City of San Bernardino Wastewater Facilities Plan project Report - 1980 U.S. Environmental Protection Agency and State of California Water Resources Control Board contracts for Clean Water Grant Projects Nos. C-06~0439-0l3 and C-06-0439-3l0 . City of San Bernardino General Plan and Loma Linda General Plan Land Use Maps, and East Valley Water District Service Area Boundary Map At issue is the requirement for and availability of capacity in the Wastewater Treatment Plant for lands not in the incor- '). J.1"-ff . #.2/ ~ - - - o o porated limits of the cities of San Bernardino, Loma Linda, and land within the sphere of influence of East Valley Water District, but not currently annexed into the district, but within the projected service area of the Wastewater Treatment Plant by the year 2000. The Wastewater Treatment Plant was built in phases. Unit I, constructed in 1959, provides 13 million gallons per day (MGD) of primary and secondary treatment. Unit 2, construc- ted in 1970, was to provide an additional 15 MGD of primary and secondary and a limited amount of tertiary treatment (3 MGD). The plant expansion in 1970 included an innovative technology for solids handling and disposal referred to as heat treat and incineration. This process failed in 1973/74 which led to treatment capacity limitations and odor problems. The project was funded, in part, by Federal and State Clean Water Act grant funds. The management and operations of the plant were turned over to the Board of Water Commissioners in 1974 by the Mayor and Common Council. One of the first efforts undertaken by the Board was to meet with Federal and State representatives to develop a program to replace the failed solids handling process with conventional treatment processes. As a result of that effort, the Board was able to reopen the original grant to provide funding for the Solids Handling Improvement Project and the Air Supply Corrective Action Project. The - o o planning phase of these two projects began in 1980. The development of the Facilities Plan Report was completed in 1980, but implementation and funding of the construction program set forth was not accomplished until 1985. Due to the limitations of adequate treatment capacity that existed, the Board of Water Commissioners imposed a moratori- um of sewer connections outside the corporate limits of the City of San Bernardino and areas under contract to serve in October, 1980. The Board of Water Commissioners wanted to make every effort to ensure that capacity would be available to the developments within the current service area bound- aries which include the City of San Bernardino, City of Loma Linda, and East Valley Water District. Once the projects to provide solids handling capability were completed and suffi- cient capacity was available, the Board was to rescind the moratorium on sewer connections outside the corporate limits of the City. The Federal and State grant agreements entered into in 1985 to provide funding for the Solids Handling Improvement Project include the condition that the City of San Bernardino operate its treatment works as a coordinated regional facil- ity providing service on a fair and equitable basis, and in accordance with guidelines and regulations of the State of California Water Resources Control Board, specifically excluding the service area designated in the City's Project Report. - - "- o o Attached to this report is a map (Exhibit 1) which depicts the Projected Service Area Boundary for the year 2000. The map also shows the incorporated and unincorporated areas within the boundaries of the City of San Bernardino and the City of Loma Linda, and the service area boundaries for East Valley Water District. One area shown on the map that is within the projected service area boundary will be eliminated. The area, being within the City of Redlands' Sphere of Influence, is east of Mt. View Avenue, south of the Santa Ana River and not within Loma Linda's boundaries. The City of Redlands has presently designed and will install a sewer lift station to take the wastewater generated from this area to their wastewater treatment plant facility. Information has been developed from various reports to determine the projected wastewater flows from the entire service area. The information developed indicates that the total projected wastewater flow at build-out will be 51.7 MGD. The total projected flow is not tied to any time frame as the general plans and sewer system master plans look only at land use criteria in determining total flows. There is no evaluation made as to the rate of growth. The information was analyzed further to determine the wastewater flows that could come from the unincorporated areas that are within the Sphere of Influence of the City of San Bernardino and the City of Loma Linda. , , , :.,' (/:-// --- / :--'c~~. 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'-.~ i,l ---("'1: '"2] .( I r)~:.\~~~~ &fif i ';-11 - :'''T ,......1 lit" (l<-,~,., , '; - '. ~ L · I - \' "f; ~~:l)l]~~.~~" r~~rij'l ------+'. '11':'1:- '~f'i.~' /~ ' . I:~ ~'~:- '; ill - ~ ' , I ;iJW'~ -,' l~}.g~ Ij ~l; ~ I[~, ,i" ~ ~: :" ," "~ --.J I " 'i' :' 5 ~ ,~1'~" (.~"< ~"L ~L ..-i'-': ~:, :!~.fl:(. : "' ...... ~ n ~ ~ ~ ~ ~ ~ G) .I : " ,r: __ _ .. I '" < 0 "Cili\ ~< l!li\ li\ !ii li\ 0 =- - -: - I", /.:: .: : :-. ~ ~ ~~ ~i~ ag '"2 2 ~~ ~ .. ., 1 i ': J fl: ; . ! / it' :. .. !~ ~ ~i; Ii ~~ i i fl i ""'J :--~'~------l[--~uuJ~'~!! rjJ;' --t:f! ,:m:_u ". ~ I -~~o-oin~15 TI'"" 'I'" ;!i8 ~15 ~~ ~ 11!2 ~i- __1.:, k "-,: " ','.' ir- --1'/'f'4' u" i' ' --: -, ..., ~ nz n6t;;~ ~~ 0 ~ i ~ E" ,~fTR'! <; ',"J /!-l L i;': i : : I "1l r 0 ~ 2J "" ~ ,...~ \ I ~ , , , I i:I: I ~ I ; ::i Pi en S i I'F. ':: I .;. --.:. .'/ ~': I : -, ~ en . - ~ l I ..c .., J II I I,. I I '1 iTi:j -.... t I , I I ',' I lIt ,_ __ , lJ)!i1 en :: :,' 1: (/: ___1 _____,~ ._. I , , , , , , , , , , !. , ~ t " U 1, ;; . [ , en , :.", , , , , , , ; , , , , , , , , , , . . . - . , . -- - -- ..--./ (., -It . p l'1 ,-..,L, I L.-! r' , -....- 15-~ ,.~ c ~ - - o o Based upon existing and projected development, the total wastewater flow that could be generated from these areas is approximately 2.6 MGD, which is included within the total projected flow. The projected flow for the unincorporated areas will probably not be realized due to the types of existing development in some of the areas. For example, the Muscoy area, if all properties were connected to the sewer system, the area could generate 600,000 gallons per day of wastewater flow. Since the area is predominately developed with single family homes on one acre lots or larger and this type of development is allowed to use septic tanks, the total projected wastewater flow will probably be closer to 100,000 gallons per day. The City of San Bernardino Wastewater Treatment Plant Focused Facilites Master Plan, prepared in 1987, was reviewed and the results compared to the information gathered from the review of general plan information. This report projects a total flow of 63 MGD by the year 2010. The report was prepared based upon land use projections that existed in 1986 and projected the rate of growth that would occur. The report ident.ifies the anticipated dates additional treatment capac- ity must be on line to meet the projected growth rate of 3.5' per year for the entire service area (Exhibit 2). The report identifies planned projects with increments of additional capacity for each project. Exhibit 3 is a recap of the plant expansion projects, and Exhibit 4 reflects current and projected treatment capacities and the projected dates the capacity will be on line. Ii! 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I ::l.I ~ 19 · : I a I 2 0 ~ i (oe,,) 10\01.:1 EXHIBIT 2 o o PROJECTED START-UP DATES FOR EACH EXPANSION PHASE ------------------------------------------------------------------------------ PLANT CAPACITIES (MGD) DATE WHEN FACILITIES MUST BE ON LINE l'BAS.E l'JUB!.BI BEDlmABI BDL1DB CITY PLANNING GBOIfl'B_1fM'.E COUNTY PLANNING GBOIfl'JLBM.E ------------------------------------------------------------------------------ Current 28 28 13 1989 1989 Solids Handling & 3.5 MGD Expansion 30 Nitrogen Removal Pilot Project 33 Hydraulic Reliability 48 Unit 3A Secondary 48 Unit 3 Solids 48 30 32 1990 1991 33 35 1991 1993 33 35 1991 1993 40.5 40.5 35 50 1992 1995 1994 1998 Unit 3B Secondary 48 Expansion 4A 55.5 Expansion 4B 63 48 55.5 63 50 57.5 65 1997 2002 2006 2001 2009 Beyond 2010 EXHIBIT 3 Q 0 Itl 0 Itl ~ .... .... ~ ... ... ... .. .. .. .. llO .... llO llO ... N 10 10 fI.l E-o ~~~ llO N 0 0 !i~ ~... 10 Itl llO llO 01 01 llO llO ~~ .. .. .. .. .... ... 01 01 2i!~ ... N N CIlI . ..... '0 8'.6J U) .:- III III ... "'il'O. '0 Q8: ,j"I ....,j"I .... ....,..,cg... ... 110 :zoo III >.>.to I:Q ~~ O,j"l ... IIol =' ...,j"I .... .... fI.lCItl,j"l ,j"IPoOD' !:::-8,j,,1 C 111";) 0 ,j"IO ... '0'0 ....C.... ........ . ef't .... C ...,QOCC CIlI . ~ ,j"I:>. Po,j"lIllN Po III ilo 0 oc :a II o.c III lIolil~... .... .... 1Iol8. 1Iol",,j,,I. lIol"'fI.l'OllI III fa o It'O ~ 0...., 0 0'!<5c o~ 0> ,j"I ... o.c IIol C ) .... ~ CI-l C C...,j"I C .... 8. l5 .... III o Ill>' o Po ....'2 OU CM .... to U ~ .... 0> ... .... :. ........,j"IOli:l C ~ ,j"IC,j"I-8,j,,1 ,j"I... ... ,j"I........... t:~ 2!CB, ..... il U .IIIC=' CU='CIlIIlI III I~ ...... CCU ... > 0>'0 ...IllOC'O i~ ....cu ~ ~ CU Wi 2' ~'e tj.... .01 It... &.... 1Iot.!! C 1lI.c llO '0'0 ... 0> i !UOI O~;MO ... .... IIlPofl.lPo U fI.l... U li:IfI.l UfI.l CUCU... ... I~ ,j"I>CU llllll,j"l .eo ... ~ .... t.c ~ ,j"I 01 01 01 01 .... C llO ,j"I,j"I U g CU .. .. .. IlI111CU & ... .. . . . lll.c tl II ... ~ C U U ~,j"I III (3 III 2: 2: U .., CUIll .c,j"l . 0 ,j"I.ccu .... 0>... . N II ........001 .. CU"'lllllO III ~ ~ ~ ~ ~ '0 ...1 .! I:Q !'i >........ ; ,j"Illl... 0 ....:> I Itl 0 0 Itl Itl '0 U Ill... C . . . . . 'ti &CUIlol .... ... N .... .... .... '0 III Ill'" 0 ... Ulll III III III C III >. CU III ... :....... CU ~a~ ~ 8111CU I:Q E ~~ C i~ III Itl U . ... fI.l B~ I . &~....... 10 llOOIll IIol N , III 0I11ol :> 0 u'" III ,j"Ic'2o .eo c.... CIO .... CU ....... U "';=' Q ... ,j"I1lI CU II ='...cu.! tl ~ Q ~ ~ UPo'" II Itl . llO 0 .... 0 llO N .... .... ~ ~ .. EXHIBIT 4 .g. .. ' . -. o o Based upon the information stated within this report, it is recommended that the allocation of sewer capacity to areas outside the corporate limits of the City of San Bernardino, City of Loma Linda and unannexed areas of East Valley Water District be 1.48 MGD. This value is less than the total anticipated flow at build-out, but should meet any demand for service that may occur prior to the year 2000. With an existing capacity of the plant rated at 28 MGD and the total anticipated flow of 63 MGD, the plant capacity will be increased by 35 MGD. By the year 2000, the plant capacity is anticipated to increase to 48 MGD, an increase of 20 MGD. To allocate the proportionate share of that capacity to the unincorporated areas, the ratio of flows from the unincorpo- rated areas to the total project flow is determined. The outside areas represent 7.4' of the total projected flows between now and the year 2010. Therefore, the allocation of sewer capacity to these lands is: P.EJUDD BDI1.!.~ G.&.l"DBlLPE1LD,U 1989-1991 540 148,000 1991-1994 884 222,000 1994-1997 2,211 555,000 1997-2002 2...211 SSS.&.ll.ll.ll 5,846 1,480,000 .n o 0 C I T Y 0 F SAN B ERN A R DIN 0 INTEROFFICE MEMORANDUM TO: Mayor Evlyn Wilcox and Common Council FROM: Diane Catran Roth, Deputy City Attorney DATE: March 20, 1989 RE: Requirements for Outside City Sewer Service ************************** ISSUE: May the City require annexation as a condition of sewer service? CONCLUSION: Requiring annexation may be a reasonable condition to providing sewer service, but must be considered on a case by case basis on both new and existing developments. DISCUSSION: The terms of the Clean Water Grants require that service be provided on a "fair and equitable basis." We have recently received a letter from James W. Baetge, Executive Director of the State Water Resources Control Board ("SWRCB") which specifically reverses the SWRCB position as it was stated in the November 3, 1987 letter from Frank Peters regarding Bryn Mawr. This letter puts us on notice that we are not absolutely precluded from requiring annexation as a condition for sewer service, as it is not per se unfair and inequitable, and may not be unreasonable in some circumstances. The SWRCB will generally not interfere with local jurisdictional disputes or planning decisions unless they "result in a failure to address a water quality problem for which a Clean Water Grant was awarded." It is clear that once the grant funded capacity of the wastewater treatment facility is expended, there is no further obligation to provide locally funded sewer service to unincorporated areas within the region, unless provided for under a JPA. It is the Water Department's position that the grant funded capacity is committed, based on the following history: 1958 locally funded 13 MGD capacity facility 1970 awarded state and Federal grants which were to provide funding for 10 years and 15 MGD expansion, to bring o o total capacity to 28 MGD; 80% grant funded and 20% locally funded 1980 as discharge requirements became more stringent, the facility became less efficient; voluntarily derated facility to 24.5 MGD 1985 -- grant amended to add solids treatment to existing facility, but no expanded capacity was funded 1989 -- capacity upgrade to 28 mgd just about complete; accomplished with local funding It is the Water Department's position that all of the 15 MGD capaci ty that was grant funded has been committed. Our local obligation to provide sewer service outside City or those areas serviced under a JPA has, therefore, ceased. The issue of requiring annexation as a condition to providing sewer service was addressed by the SWRCB in the matter of the petition of San Luis Obispo. In that matter, the board found that requiring annexation was not unreasonable. San Bernardino's situation differs from the San Luis Obispo case in two major respects. First, as part of .San Luis Obispo's grant process, specific treatment capacity was allocated to incorporated areas, unincorporated areas, and the State University. San Bernardino, on the other hand, was funded for a 15 MGD expansion to provide service to the region, without any specific allocation to the unincorporated areas. Second, in San Luis Obispo, both the City and County's general plans were consistent as to what areas were contemplated to be annexed, and in that both plans contemplated and annexation as a condition of connection to the sewerage system. Despite these differences, the case makes it clear that requiring annexation is not per se unfair and inequitable. In the State's Guidelines for Administering the "Fair and Equi table" Clause in Clean Water Grant Contracts, conditions which would be considered appropriate to subject incoming areas to include those which limit flows from the incoming area. A reasonable alternative short of requiring annexation which may therefore be considered would be to restrict density of new development in incoming areas to that permitted under the City's general plan. In Mr. Kersey's March 17, 1989, memo to Mr. Wessel, he draws four conclusions. We agree with all but number three, which we would amend to read as follows: Annexation, as a condition of service to new developments in the unincorporated areas, may be a reasonable condition to providing sewer service. " ., v ..lY ~\; \~ .4 4. o o While the SWRCB has taken a position that annexation as a condition to providing service may be reasonable, it is not an absolute position, and it may not be the position that a court would take in a particular lawsuit. It is conceivable that a lawsuit may be filed by one to whom service has been denied, and the issue will then be before the courts, not the SWRCB. Although it is difficult to imagine a scenario in which a court would force a City to use its own local resources to provide a service to an area outside of its jurisdictional boundaries, it is possible that conditions may exist which require that result. From a legal standpoint, it is more sound to take the position taken by the SWRCB -- that we will examine each request on an individual basis -- than to take an absolute position. In conclusion, as a Clean Water Grant recipient, we are required to use grant funded capacity to serve project area users on a fair and equitable basis. Once the grant funded capacity has been expended, we are under no further obligation to use local funds to serve unincorporated areas which are not provided for under a JPA. The City may impose reasonable conditions to providing service, and requiring annexation may under some circumstances be reasonable. The City should look at each request on an individual basis to determine what conditions, if any, hOU1,d :z;ed. ANE CATRAN ROTH Deputy City Attorney DCR:mw to'. . . o o C I T Y 0 F SAN B ERN A R DIN 0 INTEROFFICE MEMORANDUM 8903-606 TO: Herbert B. Wessel, General Manager FROM: Bernard C. Kersey, Director, Administration and Finance SUBJECT: Requirement for Outside City Sewer Service , DATE: March 17, 1989 COPIES: ------------------------------------------------------------- ^ On March 14, 1989, I received a copy of a letter from James W. Baetge, Executive Director of the State Water Resources Control Board addreBsed to James Penman, City Attorney. The letter addresses the issue of the City of San Bernardino providing sewer service to property in the unincorporated areas within our defined service area. I prepared a report in February, 1989 which sets forth a rationale of allocating sewer capacity to the unincorporated areas within the Wastewater Treatment Plant's projected service boundaries for the year 2000. The report's premise was that the City of San Bernardino and its contracting agency ~D>>lg DDt require annexation of an area as a condition of providing sewer service. I believe th~. premise on which the report was prepared changes significantly with the recent letter from Mr. Baetge. The issue of annexation as a condition of providing sewer service was decided in the matter of the petition of the City of San Luis Obispo, Order No. WQG82-6. The findings and conclusions of the order state that the City's requirement of annexation as a condition of service for future development within its sphere of influence is neither unfair nor inequi- table. Additionally, the City's requirement of annexation is not a violation of its contractual obligation to operate as a regional facility providing service on a fair and equitable basis. The letter contained additional information which is impor- tant to the City. The State addresses three concerns raised by Mr. Penman. These three areas are as follows: The City, as grantee, was provided grant funded capacity for a specific area and the City is expected. to use that capacity to serve that area. Once the grant funded capacity has been completely . 'i1 ..A. o o INTEROFFICE MEMORANDUM: Requirement for Outside March 17, 1989 Page 2 8903-606 City Sewer Service expended for its intended purpoBe, the grant obligation as to the use of locally funded capacity ceases. . The City is only obliged to use grant capacity to serve those users within the area as defined in the Project Report, users within the projected service area. The City may impose reasonable conditions to provide sewer service. Particularly, those neces- sary to maintain the integrity of the grant funded facilities are acceptable. Onerous conditions which do not affect the operation of the wastewater facility or fail to address a water quality problem would not be acceptable for those users located within the design service area. funded ser.;vice not all . The grant, initially issued in 1970, was to provide funds for ten years future capacity. If the City used the grant-funded capacity for needs other than those for which the capacity was provided, it would be expected that the City would provide equivalent capacity to serve users within the design service area who are experiencing water quality problems. In reference to the issues stated above, the following information is submitted. . The original plant, built in 1958 with local funds, was to provide 13 MGD treatment capacity. The plant was expanded in 1970-71 by 15 MGD of treat- ment capacity. This expansion was funded under Public Law 84-660, the originAl Clean Water Grant Program, CWG-C-06-0439-0l0. In 1980, the original grAnt was amended to begin the process of obtaining funds to do corrective action work for solids handling facilities and a reliable air supply. Funding for the construction of the Solids Handling Project was accomplished in 1985 and funding for the Air Supply Corrective Action project. vas accomplished in 1988. Neither of these grant funded projects adds capacity to the vastevater facility; they provided funds to provide facilities for a reliable 15 MGD of capacity. The wastewater treatment plant was voluntarily derated to 24.5 MGD in 1980 due to changes in our NPDES permit. The more stringent discharge stan dards required the addition of the 3.5 MGD . 1li:C_-_ ... o o INTEROFFICE MEMORANDUM: Requirement for Outside March 17, 1989 Page 3 8903-606 City Sewer Service . Secondary Treatment Upgrade to Unit 1, the Solids Handling Improvement Project, and a variety of interim improvements in order to meet discharge requirements. The plant is to be re-rated to 28 MGD upon the completion of the 3.5 MGD Secondary Upgrade and the Solids Handlinq Project. Except for the Solids, Handl ing Project, -all other improve- ments were locally funded. When the project report was written in 1980 for the Solids Handling and Aeration Improvement Projects, the following was the projected waste loading for the wastewater treatment facilities. , l.9U (Actual) UJlS U9.D 2.D.D.D Sewered Population 159,531 160,600 187,621 223,519 Average Daily Flow (MGD) 17.52 18.90 20.45 24.59 . The projected waste loading for the wastewater treatment facilities was updated with the 1987 Pocused Facility Master Plan as follows: UU UJI~ (Actual) (Actual) UU 2.D.D.D Sewered Population 159,531 236,855 260,397 366,221 Average Daily Flow (MGD) 17.52 24.8 28.1 39.6 Based upon the information above, the following conclusions can be drawn: 1. .The City of San Bernardino utilized the grant funded capacity to provide wastewater treatment to the geographic area within the service are set forth within the 1980 Facilities Plan Project Report. 2. The grant funded capacity, 15 MGD, has been com- pletely expended or committed through the sale of sewer capacity rights, for its intended purpose. ~.,...-."- -'" r/ - . o o INTEROFFICE MEMORANDUM: Requirement for Outside March 17, 1989 page .. 8903-606 City Sewer Service 3. ~f/ r~ ~ Annexation, as a condition of servi~ to opments in the unincorportated area/is a condition to providing sewer service. new devel- reasonable 4. Sewer service should be available to property ~ocated outside the corporate City limits when water quality problems exist, such as failed septic/cesspool systems. .. , ---------- Bernard C. Kersey Director, Adminis ation & Finance BCK:mka _""~~'f-:--. - ....:. . STATE OF CAt..IFORNIA o o GEORGE DEUKMEJIAN, GOlf8mor .' STATE WATER RESOURCES CONTROL BOARD PAUL R. BONOERSON BUILOING 901 P STREET P.O. BOX 100 SACRAMENTO, CALIFORNIA 95801 . " IWl 0,) 1989 Mr. James Penman, City Attorney City of San Bernardino 300 North D Street San Bernardino, CA 92418 Dear Mr. Penman: CITY OF SAN BERNARDINO (CITY), PROJECT NO. C-06-0439-010, REVENUE PROGRAM This letter is in reply to your recent communication with the State Water Resources Control Board (Board) concerning the November 3, 1987 letter from Mr. Frank Peters of our staff. Mr. Peter's letter stated that it was inappropriate to require annexation as a condition of providing sewer services to the community of Bryn Mawr. As a general rule, the Board will not interfere with local jurisdictional disputes unless those disputes result in a failure to address a water quality problem for which a Clean Water Grant was awarded. " The fair and equitable guidelines, adopted by the Board on November 1, 1973, state in part: "Conditions which interfere with the jurisdiction and authority of the incoming agency or area, except as necessary to maintenance of the integrity and treatment capacity of the regional facilities are improper." In the most recent Board consideration of the fair and equitable guidelines [In the matter of the petition of the City of San Luis Obispo, Order No. WQG 82-6 (copy enclosed)], the Board said that where the San Luis Obispo Local Agency Formation Commission had defined a grantee's sphere of influence, where the issue involved was service to future development within a grantee's sphere of influence, and where there was no overriding water quality problem involved, the question of whether annexation of an area should be required as a condition of service was primarily a local planning decision which, absent unusual circumstances, should be left to the local agencies. Without Board consideration of the specific facts of your situation, I am unable to tell you what Board policy would likely be on the issue of annexation of the community of Bryn Mawr. ' ., Staff of the Division of Loans and Grants normally make initial determinations in these matters. Agencies which disagree with staff determinations may petition the Board for review. (See California Code of Regulations, Title 23 93655). M,'=... ., - - - ." Mr. Penman o .2- o I1AR 0,) 1989 ." During a recent conversation with Mr. Ron Markle of the Division of Loans and Grants, you asked the following specific questions: 1. Is the City required to serve all users within the service area? Response: To the extent that a grantee has been provided with grant-funded capacity for a specific area, a grantee is expected to use that capacity to serve that area. Once the grant funded capacity has been completely expended for its intended purpose, the grant obligations as to the use of locally funded capacity ceases. 2. Is the City required to serve all users within the projected service area? Response: No, the City is only obligated to use grant-funded capacity to serve those users within the service area as defined in the Project Report. 3. Can the City impose conditions on the service? Response: Yes, the City may impose reasonable conditions. Particularly, those conditions necessary to maintain the integrity of the grant funded facilities are acceptable. Onerous conditions which do not affect the operation of the wastewater facility or fail to address a water quality problem would not be acceptable for those users located within the design service area. '0.. ,/The grant provided funds for 10 years future capacity. It was assumed that as \ new users connected to the system during that period, the City would collect , adequate fees to expand the plant when necessary. ..--4'~. If the City used the grant-funded capacity for needs other than those for which . "f \ the capacity was provided, it would be expected that the City would provide " . \, equivalent capacity to serve users within the design service area who are \ experiencing water quality problems. If you would like a.more formal and detailed review of the Bryn Mawr situation, I suggest you write to: Harry Schueller, Chief Division of Loans and Grants 2014 T Street P.O. Box 944212 Sacramento, CA 94244-2120 In your letter to Mr. Schueller I suggest you describe the factual situation to the best of your knowledge. Please specifically point out those facts which appear to differ from the facts contained in the City of San Luis Obispo's case. "l'q.c,.'., - o o Mr. fienman -3- lWl 0;) \989 ." If you have any questions concerning the contents of this letter, please contact Mr. Frank Peters, our Revenue Program Coordinator, at (916) 739-4424. Sincerely, ! oyv-- --i-I"W -....~ -/ James W. Baetge EKecutive Director 6-0--/ Enclosure " ~ o o . ; ~. , . .' STATE OF CALIFORNIA STATE WATER RESOURCES CONTROL BOARD In the Matter of the Petition of ) the City of San Luis Obispo for ) Review of the Final Decision of ) the Division of Water Quality. ) Our File No. G-60. ) ) ORDER NO. WQG 82-6 BY THE BOARD: This appeal involves interpretation and application 1 I of "fair and equitable" service requirements.~elevant facts, issues, and our conclusions therein are set forth below. I. BACKGROUND On February 3, 1981, the petitioner, the City of San Luis Obispo (hereafter City), accepted federal and state assistance for construction and upgrading of certain treatment facilities. The facilities have an anticipated treatment capacity of 5.1 miilion gal~ons per day (mgd). As part of the grant process, the City's service area was defined, the City agreed to act as a regional ~reatment facility, and treatment capacity was allocated as follows: 1. See Guidelines for Administering "Fair and Equitable" Clause Contained in Clean Water Grant ,Contracts, adopted November 1, 1973. ;w.-:=.-- .~~ " ~" o o .. ( " .'- .. (1) City Incorporated Area (including 0.05 industrial flow) (2) California Polytechnic State University 4.27 mgd (3) Unincorporated Area 0.60 mgd 2 / 0.23 mgd- 5.10 mgd As part of the federal and state grant contracts, a special condition was imposed requiring the City to "operate the treatment works as a coordinated regional facility providing service on a fair and equitable basis and in accord- ance with guidelines and regulations of the State.Board, specifically for all agencies or areas within the service area !iesignated in the Grantee's Project Report." The City has adopted a Sewer Service Plan which. , , with very limited exceptions, requires annexation as a condition of service in the unincorporated area. Historically, in accordance with what was perceived to be State Board policy. the.State Board's Division of Water Quality (DWQ) has taken a position that the "Fair and Equitable Guidelines" preclude "forced annexation", i.e., that a requirement of annexation by a regional facility as a condition of providing sewerage service is an unfair and inequitable condition. 2. At this time, the City is providing approximately 0.046 mgd of sewerage service to the airport which is in the unin- corporated area, leaving approximately 0.184 mgd of the capacity allocated to the unincorporated area still avail- able. _?- -,.., ~ o o ," .. 1\,. ,.~ 'I( Accordingly, DWQ staff took the position that the City's Sewer Service Plan with its general requirement for annexation as a condition of service was contrary to the City's special grant condition. The City objected vigorously to the DWQ staff position on a variety of grounds which are summarized hereafter. Good faith attempts to resolve the dispute were not successful. DWQ staff eventually issued, its final decision, resulting in a petition from the City basically requesting that the State Board review and overrule the DWQ staff decision. Other relevant facts, briefly stated, are: 1. The unincorporated area which is included within the City's service area is primarily within the City's "sphere of influence" as determined by the San Luis Obispo Local Agency Formation Commission (LAFCO). 2. The City's General Plan and the San Luis Obispo County Land Use Elecent are generally consistent. 3. The unincorporated area includes an existing mobile home park known as Hidden Hills Mobile Home Park. This development has existed for a number of years. According to the Central Coast Regional Board, this development constitutes a significant water quality problem and the Regional Board believes that the City should provide sewerage service to this 3 / development to eliminate the water quality problem.-- 3. We are advised that the capacity needed to serve this dev~10pment ;~ approximately 0.014 mgd. -3- ~ o o ." In accordance with our regulations, an informal , meeting was held on May 7, 1982, to explore resolution of the problem. Ms. Carla M. Bard, Chairwoman, represented the State Board. The City was represented by Mayor Melanie C. Billig and other representatives. Also present at the meeting were Mr. Ken Jones, Executive Officer of the Central Coast Regional Board; Ms. Mary Shallenberger of the Governor's Office of Planning and Research; and DWQ staff members. II. THE CITY'S POSITION In substance, the City's position is that a require- ment for annexation as a condition of service is not unfair or inequitable where: 1. The area in question is within the City's "sphere of influence". 2. City and County planning for the area involved is in alignment, and both City and County Plans contemplate annexation as a condition of connection to the City's sewerage 4 / system.- 4. The City forcefully argues other legal and practical reasons for allowing a condition of annexation, such as ability of the City to enforce an adequate source control program when the area served is within City boundaries and subject to City ordinances, and implementation of the Governor's Urban Strategy. In view of the fact that we fundamentally agree with the City's basic position, we do not deem it necessary to discuss the additional contentions and arguments by the City. -4- .liS ~ . o o " III. DISCUSSION The '7air and Equitable Guidelines" were adopted in 1973. At that time, and to a large extent today, treatment works were funded on a regional basis for one primary reason. Regional facilities are more cost-effective. It is simply less expensive to construct one facility for the entire area which logically should be served by that facility than to construct separate treatment works for each and every existing municipality and pocket of development. However, early on, it became apparent that municipal- ities, primarily cities, which had received federal and state grants for regional facilities, including capacity for areas beyond their jurisdication, were using their grant funded facilities to force outlying areas to annex to or be incorporated into the jurisdictional limits of the grantee, regardless of all other considerations. This unfortunate situation was the genesis for adoption of the Guidelines and the policy that "forced annexation" was unfair and inequitable. The rationale was simple. The primary source of funding was state and federal grant moneys.. ultimately paid for by all taxpayers. To the extent that capacity for outlying areas had been essentially paid for with state and federal grant funds, it was deemed unfair to permit the grantee to use this capacity as a sword to compel other areas to annex regardless of the desire of those areas and their inhabitants and regardless of the question of whether annexation of a particular area was either beneficial or necessary. -5- 1. o o ~( -..,,<::- < . . In the societal context of the'early 1970's, and considering the attitude of a number of grantees at that time, the then State Board was probably wise in essentially precluding forced annexation. However, this Board recognizes that circum- stances have changed dramatically since 1973. Among other things, planning concepts and goals have changed. Economic conditions are vastly different. Local agency planning procedures and the results thereof are vastly improved, due in part at least to a much more active and vigorous role taken by Local Agency Formation Commissions to assure that proposed annexations are logical and justified. This Board recently had Q.C,CjU!ion to discuss "fair . ':::_5 / and equitable" service requirements.~ile the issue presented, and the factual circumstances involved were considerably different, the general principle enunciated in that oatter also applies to this petition: "The...property...is within the City's sphere of influence. It is not illogical to assume that in the ordinary course of events the property in question would be annexed to the City... . "It is...not our intent to unduly interfere in matters which primarily involve local planning decisions unless water quality concerns leave us no choice." It seems to us that, in California today, where a grantee's sphere of influence has been defined, where the issue 5. See Petition of Fite Development Company, Order No. WQG 82-4. -6- c ~ .' ~ _!!mbll o o involved is service to future development within the grantee's sphere of influence, and where there is no overriding water quality problem involved, the question of whether annexation of the area involved should be required as a condition of service is primarily a local planning decision. Absent unusual circumstances, that decision should be left to the governmental agencies legally charged with making the determination -- the cities and the appropriate Local Agency Formation Commission. One other matter deserves brief comment. According to.,the Regional Board, the Hidden Hills Mobile Home Park, an existing development in the unincorporated area, constitutes an existing water quality problem and this development logically should be served by the City's facilities. There will be more than adequate grant funded capacity allocated to the unincor- porated area to permit the City to serve this development. The City agrees that the present waste disposal facilities of this development do constitute a water quality problem and the City is willing to provide service to this development. Relying upon the City's assurances, we will not dwell upon this issue other than to state that, in our opinion, regardless of "fair and equitable" considerations, a grantee receives grant funds and grant funded capacity as a public trust. To the extent that a grantee has available grant funded capacity allocated for an area, we believe that the grantee has an obligation to use that c~pacity to remedy the water quality PLVUlt,UlS uf that area.. -7- o o .... '..~ <0. ,-,- : I" IV. FINDINGS AND CONCLUSIONS For the rc~sons discussed, we find and conclude: 1. Under the circumstances of this case, the City's requirement of annexation as a condition of service for future development within its sphere of influence is neither unfair nor inequitable. 2. The City's aforesaid requirement of annexation is not a violation of its contractual obligation to operate as a regional facility providing service on a fair and equit- able basis. V. ORDER IT IS HEREBY ORDERED that: 1. The City's obligations under its grant contracts shall be construed in accordance with this Order; and 2. To the extent that the DWQ final decision is inconsistent with this Order, that final decision is overruled. Dated: May 20, 1982 /s/ Carla M. Bard Carla H. Bard, Chairwoman /s/ L. L. Mitchell L. L. M~tchell, Vice Chairman /s/ Jill B. Dunlap Jill B. Dunlap, Member ABSENT F. K. Aljibury, Member -8- ., .. ZS.B. violates state's rules on sewer grant City has refused hookups to unincorporated areas By PATRICK McGREEVY Sun Stall Writer SAN BERNARDINO - The city has violated conditions oC a state grant Cor more than a year by refusing sewer hookups to unincorporated areas such as Bryn Mawr that do not agree to be annexed, officials said Tues- day, "It's blackmail;' said Cormer Councilman Ralph Hernandez, Disclosure oC the violations may Corce the city council to lift a moratorium on service outside the city limits or San Bernardino may have to repay the $7,8 mil, lion grant, City Attorney James Penman said, The city plans to appeal to state officials on the basis that the region's growth has Car out- paced projections anticipated when the $7,8 million grant was awarded in 1969, Penman said. "The question is," the city at, torney said, "iCwe meet these ob, ligations are we going to have suC, ficient capacity for our own residents?" Tuesday, city officials re- leased a year-old letter from the state Water Resources Control Board warning that conditions of a $7,8 million grant prohibit the city from denying hookups to res, idents in a large area outside the city, defined by the 19-year-old grant, Penman said the city's water department received the letter but never passed it on to the city council, which has voted repeat- edly during the past year to deny requests for sewage hookups to areas that rejected annexation. Herb Wessel, general man- ager of the water department, said the sewage treatment plant cannot accommodate all the homeowners outside the city who want to hook up, The city plant can serve 400 more homes, but a $20 million plant expansion to be completed in March may allow it to serve up to 22,000 more homes. Wessel said the moratorium was partly a political decision by the council to persuade neighbor, hoods to annex to the city, al, though the city faced a legitimate SeeGRANT/B8 , 08 WEDNESDAY November 23, 1988 * " o I j/~'~I f--:~/.;,r~~<., , :/'/1.. .,dc/pc. .~ '~~d~f ) I:" ~ ;;.r;:/~c ;.'3 / ;-;.} ;; Grant: S.B. can't accommodate all, Penman says Continued from/B1 capacity shortfall, "At one time the (sewage) flow was greater than the treat- ment capacity so the decision was made not to take on outside areas," Wessel said, "We may be able to lill that local moratori- um." Hernandez. who lell the council last year, Ron Markle of the state water \ board said Tuesday his office \ plans to look into whether the ) city is complying with the grant a year aIler the warning, County healtb officials also believe tbe city should start serv- ing unincorporated areas, where old septic tanks are overflowing into tbe groundwater supply, Septic tank pollution has con, tributed to the closure of 14 city water wells, said Pam Bennett. acting supervisor for land use in the county health department, Penman said be plans to ask county bealtb officials for proof tbat tbe public bealtb would be threatened ietbe city doesn't pro- vide sewer hookups to unincorpo- rated areas, "If the door is opened on this one, we could get a flood of re- quests that we migbt not be able to meet," Penman contended. State officials are clear on conditions set on the $7,8 million grant to expand the sewage treat, ment plant serving San Bernardi, no and Loma Linda into a region- al facility also serving unincorporated areas, "Any requirement that does not directly affect the operation of tbe facility, including annexa. tion. is not allowed," wrote Frank Peters oftbe state water board, Ex-<:ouncilman calls policy 'blackmail' Hernandez, born and raised d " ' in Bryn Mawr, said San Bernardi. Tbe state bas made It very . no denied bookups to the commu- clear to me for more than a year nity of 100 families soutbeast of tbat tbey will withdraw the grant tbe city knowing tbat the grant funds if the city doesn't provide was being violated. service to that community," said o o STATE QF CAlIFORi\J.A L GEORGE DEUKMEJ1AN, GOllf'rftor STATE WATER RESOURCES CONTROL BOARD DIVISION OF CLEAN WATER GRANTS P~UL R. BONOERSON BUILDING 901 P STREET P.O. BOX 100 SACRAMENTO, CALIFORNIA 95801 (916) 322-6554 tlOV 03 1987 Mr. Herbert 8. Wessel Genera I ~lanager Water Department, City Hal I P. O. Box 710 San Bernardino, CA 92402 Dear Mr. Wessei: CITY OF SAN BERNARDI~110, PROJECT NO. C-05-0430-2CO; REVENUE PRCGRA1-1 I recent I y rece i ved a Jetter from r,lr. Ra I ph Hernandez concern i ng \1astewater treatment for the community of Bryn Mawr. Enclosed with the letter was a copy of a letter from the City of San Bernardino (copy enclosed) stating that property must be annexed to the City before sewer service would be provided. Under the conditions of your grant, the City agreed to operate their facil ity a~ a reg:onal plant providing service to users on a fair and equitable basis. Any requirement that does not dIrectly affect the operation of the facil ity (including annexation) is not al lowed. If the Bryn Mawr Community Is within the grant-funded service area boundaries, you must provide service to them without requiring annexation. If it is outside the service area you may (at your option) provide service, but you cannot require annexation as a condition of service. If you have any questions concerning this letters, please contact me at (916) 322-6558. Sincerely, :>;;~./ ~ r' Frank E. Peters WRC Financiai Management Analyst ~"., ~..,.....,.., . . j , "!f-~' ~ ...,.. ',," '. \ ~,- ,..> <'".,>.M"