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. 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:
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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.
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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-
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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
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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.
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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.
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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.
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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
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EXHIBIT 4
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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
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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
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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
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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.
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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
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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
.
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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
.
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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.
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INTEROFFICE MEMORANDUM:
Requirement for Outside
March 17, 1989
page ..
8903-606
City Sewer Service
3.
~f/
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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
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STATE OF CAt..IFORNIA
o
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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,'=... .,
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Mr. Penman
o
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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,.'.,
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Mr. fienman
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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
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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.
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(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.
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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-
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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.
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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-
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.
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.
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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..
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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-
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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 *
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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
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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
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