HomeMy WebLinkAboutCity Council Item No. 05CITY OF O, ~
LADE LSIROIIE
DREAM EXTREME
REPORT TO CITY COUNCIL
TO: HONORABLE MAYOR AND COUNCILMEMBERS
FROM: ROBERT A. BRADY, CITY MANAGER
DATE: JUNE 28, 2011
SUBJECT: AMENDMENT NO. 2 TO EXTEND TMDL TASK FORCE AGREEMENT
Background
In December 2004, the California Regional Water Quality Control Board, Santa Ana
Region (SARWQCB), approved Resolution No. R8-2004-0037 adopting the Lake
Elsinore and Canyon Lake Nutrient Total Maximum Daily Load (TMDL) Program. On
September 30, 2005, the TMDL Program was formally approved by the U.S.
Environmental Protection Agency.
The goal of the TMDL Program is to reduce nutrient pollution and attain specified water
quality targets for Lake Elsinore and Canyon Lake over the next ten years through a
phased program. Under the mandate of the Federal Clean Water Act, the SARWQCB
determined the maximum mass of nutrients that can flow to the lakes without impairing
their beneficial uses. This total mass was then divided and allocated to each major
pollutant source for nutrients. Examples of pollutant sources include urban, agriculture,
septic systems and internal in-lake loading. By the year 2020, all the major
stakeholders identified by the SARWQCB will be required to meet their waste load
allocation for nutrients.
The Nutrient TMDL Program mandates a series of implementation tasks to be
performed by named watershed stakeholders to monitor, study, and employ measures
to restore the beneficial uses of two impaired waterbodies, Lake Elsinore and Canyon
Lake. The City of Lake Elsinore is conditioned, along with many other agencies, in
completing the tasks. Stakeholders can perform these tasks individually or collectively.
In order to pool resources and apply for grant funding, the stakeholders finalized an
agreement and budget in 2006 to form the "Lake Elsinore and Canyon Lake TMDL Task
Force". This agreement is scheduled to expire on June 30, 2011.
Discussion
Since the formation of the TMDL Task Force, the organization has focused on
completing the required implementation tasks. Cost allocations to implement tasks and
projects are based upon estimated nutrient waste load allocations to the lakes by each
AGENDA ITEM NO. 5
Page 1 of 21
Amend TMDL TF Agreement
June 28, 2011
Page 2
Task Force Agency. Uncertainty is always going to exist in the nutrient waste load
allocations when modeling the mass of nutrients contributed to the lakes by each Task
Force Agency. Refining the data that is input into the watershed model has been an
ongoing effort. The Western Riverside County Agricultural Coalition (WRCAC)
commissioned an aerial mapping of the agricultural lands. The results of the new aerial
mapping showed a substantial portion of the upper watershed that was originally
designated as "agricultural" did not qualify as an agricultural operator under WRCAC.
Therefore, WRCAC is requesting a reduction in their cost allocation for the TMDL Task
Force based on the revised data.
In order to allow further analysis, the TMDL Task Force recommends extending the
Agreement for another year at the preset funding percentages defined in the Task Force
Agreement.
Fiscal Impact
Approval of this agreement and budget authorizes the City to expend $73,133 on this
item during FY'11-12. This allocation has been included in the City's proposed General
Fund Budget for FY II 1-12.
Recommendation
Approve "Amendment No. 2 to Form the Lake Elsinore and Canyon Lake TMDL Task
Force" and associated budget, and authorize the City Manager to execute the
amendment.
Prepared by: Pat Kilroy, Director
Lake, Parks & Recreation Department
Approved by: Robert A. Brady, City Manager
Attachments:
• Amendment No. 2 to the Agreement to Form the Lake Elsinore and Canyon Lake
TMDL Task Force.
• TMDL Task Force Budget for FY'11-12.
• Agreement to Form the Lake Elsinore and Canyon Lake TMDL Task Force
Page 2 of 21
AMENDMENT NO. 2 TO THE AGREEMENT TO FORM
THE LAKE ELSINORE AND CANYON LAKE
TMDL TASK FORCE
This Amendment No. 2 is made this _th day of , 2011 by and among the
Agencies that constitute the Lake Elsinore and Canyon Lake TMDL Task Force.
RECITALS
WHEREAS, the Lake Elsinore and Canyon Lake TMDL Task Force was created pursuant to
that certain agreement entitled "Agreement to Form the Lake Elsinore and Canyon Lake TMDL
Task Force" dated March 5, 2007. ("Agreement') and subsequently amended under Amendment
No. 1, which extended the Agreement to June 30, 2011 and added two additional agencies.
WHEREAS, it is the purpose of this Amendment No. 2 to the Agreement for all Task Force
Agencies to mutually extend the duration of the Agreement for an additional full year and to
delete certain references in the agreement regarding share allocation to allow sufficient time for a
new Pro-Rata Share Allocation methodology to be developed and agreed upon to represent the
mutual interests of the Task Force under a long term task force agreement.
NOW, THEREFORE, the parties mutually agree that the agreement is amended as follows:
• The duration of the Agreement is extended one full year to June 30, 2012, and
• Section 11.5 - Pro-Rata Share Calculation is hereby deleted for the term of this time
extension in accordance with Section 11.7 Modifications to the TASK FORCE PRO-RATA
SHARE methodology which allows for modification of the methodology per written
approval of all the Task Force Agencies whose pro-rata share would be affected.
• The Task Force has reviewed and agreed to pay their pro-rata share allocations for FY
11-12 in accordance to the FY 11-12 Task Force Budget, attached herewith, and under
the terms defined in Section 11.4 Budget.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment No. 2 on the
dates shown adjacent their respective signatures. This Amendment becomes effective as of the
date of the latest signature page received.
CITY OF LAKE ELSINORE, a municipal corporation
BY
Robert A. Brady, City Manager
DA'
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Attest:
Virginia Bloom, City Clerk
Approved As to Form:
Barbara Leibold, City Attorney
Page 4 of 21
6/1/2011
FY 2011-12 Budget: Lake Elsinore & Canyon Lake TMDL Task Force
Stakeholder Funding $ Credits
MS4 Funding Credits (RCFC&WCD)
Phase 1 - Stream gauge O&M
Phase 1 - Lab Analysis, Watershed-wide Monitoring
Wet Year Watershed-wide Monitoring (weather dependant, funded by contingency)
Lk Elsinore Comp Water Mgt Agrmt Funding Credits (EVMWD)
Phase 1 - Lake Elsinore Nutrient Monitoring
Total Stakeholder Credits
In-Kind Services Share (no Funding $ Credit)
9a O&M (RCFC&WCD) .........................77.ooo
Phase 2 - Stream Gauge
Storm water data collection at the Cranston gage station (USFS) ..........~o.ooo.
Total Stakeholder In-Kind Services $ 87,000
Detailed Stakeholder Contributions Budget
2011-12
Stakeholder Allocation
MS4 Co-Permittees (Total)
Riverside County
City of Beaumont
City of Canyon Lake
City of Hemet
City of Lake Elsinore
City of Moreno Valley
City of Mundeta
City of Perris
City of Riverside
City of San Jacinto
City of Menifee
City of Wildomar
Riverside County Flood Control & Water Conservation District (RCFC&WCD)
Lake Elsinore Comprehensive Water Management Agreement (Total)
Elsinore Valley Municipal Water District (EVMWD)
City of Lake Elsinore
San Jacinto Agricultural Operators
San Jacinto Dairy & CAFO Operators
CALTRANS - freeway
CA DF&G - San Jacinto Wetlands
US Forest Service (USFS)
Eastern Municipal Water District
March Air Reserve Base Joint Powers Authority
US Air Force (March Air Reserve Base)
Total Funding Required
183,140.00
32,919
3,900
3,396
22,696
12,063
52,520
650
16,580
2,965
11,133
20,458
3,859
122,140
61,070
61,070
143,320
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Summary Task Force Expenditures Budget
2011-12
Page 6 of 21
AGREEMENT TO FORM
THE LAKE ELSINORF A.ND CAINITON LAKE TMDL TASK FORCE
This Agreement, entered into as of tisis_ day of i?i?.. 200 i to form the Lake Elsinore
and Canyon Lake TMDL Task Force (hereinafter "Agreement") is made by and among the following
entities; which are hereinafter sometimes collectively referred to as "TASK FORCE AGENCIES" or
individually as "TASK FORCE AGENCY":
United States Department of Agriculture, Forest
Service (For°j;,Service)
USAir Force (March Air Reserve Base)
March Air Reserve Base Joint Powers Authority
California Department of Transportation
California Department of Fish and Game
County of Riverside
City of Beaumont
City of Canyon Lake
City of Hemet
City of Lake Elsinore
City of Moreno Valley
City of Murrieta
City of Perris
City of Riverside
City of San Jacinto
Elsinore Valley Municipal Water District
Eastern Municipal Water District
Western Riverside County Agriculture Coalition
on behalf of the Agricultural Operators in the
San Jacinto River Basin
Western Riverside County Agriculture Coalition
on behalf of the Dairy Operators in the Sar.
Jacinto River Basin
Riverside County Flood Control and Water
Conservation District
I. RECITALS
A. Whereas, in 1998. the Santa Ana Re=ional Water Quality Control Board
(hereinafter "Regional Board") designated Lake Elsinore and Canyon Lake in the Lake Elsinore
and San Jacinto Watersheds (Collectively the "Watersheds") as "impaired water bodies"
pursuant to Section 303(d) of the federal Clean Water Act because of high levels of algae in both
lakes and low dissolved oxygen in Lake Elsinore, attributed to excess phosphorus and nitrogen
('N'UTRIENTS). As a result of said Section 303 designation, the Clean Water Act requires that
total maximum daily loads (hereinafter "TMDLs") be established by the Regional Board for
these waterbodies. `
B. Whereas, in response to the Section 303(d) designation, the Regional Board
adopted a Resolution R8-2004-0031 on December 20. 2004 amending the Water Quality Control
Plan for the Santa Arta River Basin (BASIN PLAN AMENDMENT) to incorporate nutrient
TMDLs for Canyon Lake and Lake Elsinore. The Basin Plan Amendment specifies, among
other things, an Implementation Plan (TMDL IMPLEMENTATION PLAN), which holds
specified stake holders (TASK FORCE AGENCIES) individually and/or Jointly liable for
complying with the TMDLs by means of specific tasks to be completed by specified dates under
penalty of law. These tasks include development and implementation of a watershed-tide
nutrient water quality monitoring program, development of an in-lake nutrient monitoring
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program for Canyon Lake and Lake Elsinore, development of a plan and schedule for in-lake
sediment nutrient reduction for Lake Elsinore, development of a plan and schedule for evaluating
in-lake sediment nutrient strategies for Canyon Lake, updating watershed and in-lake nutrient
TMDL water quality models, developing a pollutant trading plan, and reviewing and revising the
TMDL to reflect updated data and science.
C. Whereas, the purpose of this AGREEMENT is to form a task force (hereinafter
"TASK FORCE") to implement certain tasks identified in the TMDL IMPLEMENTATION
PLAN and to pursue TMDL related tasks agreed upon by TASK FORCE AGENCIES, and
D. Whereas, the TASK FORCE AGENCIES agree that the purpose of this TASK
FORCF.~. is to (1) review and develop recommendations to update the TMDL BASIN PLAN
AMENDMENT based on the best available scientific information, and (2) implement TMDL
IMPLEMENTATION PLAN Tasks identified below and jointly assigned to TASK FORCE
AGENCIES, and (3) propose appropriate revisions to the TMDL BASIN PLAN AMENDMENT
to the Santa Ana RWQCB by June 30, 2010, and (4) allow watershed stakeholders to participate
in efforts to meet appropriate water quality standards so that Canyon Lake and/or Lake Elsinore
can be de-listed from the Clean Water Act Section 303(d) list of impaired water bodies, and
E. Whereas, hundreds of individual agricultural and dairy operators are subject to the
Canyon Lake and Lake Elsinore TMDLs and its component TMDL IMPLEMENTATION
PLAN, and
F. Whereas the Western Riverside County Agricultural Coalition(WRCAC) is a non-
profit organization representing the interests of agricultural and dairy operators within the San
Jacinto Watershed, and
G. Whereas WRCAC's membership is open to any and all agricultural and dairy
operators within the San Jacinto watershed, and
H. Whereas, March Air Reserve Base (MARB) is an installation of the United States Air
Force, and the San Bernardino and Cleveland National Forest are on federal lands under the
administration and management of the Forest Service. Both are agencies of the federal
government, and are therefore subject to limitations in their ability to comply with every
provision stated herein to the same extent that other non-federal TASK FORCE AGENCIES are
able to comply. These limitations are based upon, but not limited to, those identified in the
federal Clean Water Act, the federal Antideficiency Act, the principle of sovereign immunity and
the holdings of the Supreme Court of the United States, and other binding federal court
decisions, as they interpret those sources of federal law. The limitations so mentioned include,
but are not limited to, the availability of federal funding to pay for participation in this program,
and the ability of MARB and Forest Service to participate directly in sampling, research or data
gathering activities which are not located on or near MARB or National Forest System lands or a
point source of water discharge arising on MARB or National Forest System lands, or other
activities not specifically authorized by the Federal Clean Water Act section 313. To the extent
that the limitations described herein prevent MARB or Forest Service from fully participating in
any aspect of this program, they reserve the right, in their sole discretion, to participate in the
program as a matter of comity. By entering into this agreement, MARB and Forest Service do
not authorize any of the TASK FORCE AGENCIES to exercise regulatory authority over them.
MARB and Forest Service agree that State and federal regulatory agencies that are or may
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become members of this TASK FORCE have regulatory authority over MARB and Forest
Service only to the extent permitted by State or Federal Law.
1. Whereas, the TASK FORCE AGENCIES acknowledge and agree that the
effectiveness of the TASK FORCE may be improved by the inclusion of other agencies as
additional TASK FORCE AGENCIES to the TASK FORCE, and
J. Whereas, the Riverside County Flood Control and Water Conservation District
(RCFC&WCD) serves as the Principal Permittee for the National Pollutant Discharge
Elimination System (NPDES) Municipal Separate Storm Sewer System Permit (MS4) for the
Santa Ana Region of Riverside County, and
a
K. Whereas, the County of Riverside and Cities of Beaumont, Canyon Lake, Hemet,
Lake Elsinore, Moreno Valley, Murrieta, Perris, Riverside, San Jacinto are MS4 CO-
PERMITTEES for the NPDES MS4 Permit for the Santa Ana Region of Riverside County, and
L. Whereas, the MS4 PRINCIPAL PERMITTEE and MS4 CO-PERMITTEES
collectively represent the MS4 PERMITTEES within the San Jacinto Watershed, and
M. Whereas, the NPDES MS4 Permit for the Santa Ana Region of Riverside County
is regulated by the REGIONAL BOARD and subject to the requirements of the nutrient TMDLs
for Canyon Lake and Lake Elsinore, and
N. Whereas RCFC&WCD has agreed to provide services on behalf of itself as an
NPDES MS4 PERMITTEE and on behalf of the MS4 CO-PERMITTEES for the purposes of
this AGREEMENT, and
0. Whereas RCFC&WCD has prepared and reviewed the MS4 CO-PERMITTEES
cost share allocation with MS4 CO-PERMITTEE staff at the NPDES MS4 Permit Technical
Advisory Committee Meetings and with the affected City Managers and County Executive
Office, or designated representatives thereof during the NPDES MS4 Permit Management
Steering Committee Meeting of February 16, 2006, and
P. Whereas, the TMDL assigned nutrient waste load allocations for supplemental
water (herein SUPPLEMENTAL WATER) addition to Lake Elsinore to stabilize the Lake's
elevation, and
Q. Whereas, the nutrient waste load allocation for SUPPLEMENTAL WATER,
which includes Island Well water, EVMWD treatment plant effluent, and other sources of non-
stormwater, may reduce the TMDL waste load allocation and TMDL load allocation of other
point and non-point sources because in-lake nutrient capacity was not adjusted to account for
increased lake levels associated with the addition of SUPPLEMENTAL WATER, and
R. Whereas, the assumptions regarding load allocations for SUPPLEMENTAL
WATER may not be consistent with the actual operation of SUPPLEMENTAL WATER
sources, and
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S. Whereas, the City of Lake Elsinore and EVMWD previously entered into an
agreement to equally share the cost of SUPPLEMENTAL WATER addition to the Lake under
the "Lake Elsinore Comprehensive Water Management Agreement", and
T. Whereas, for the purposes of this AGREEMENT, the City of Lake Elsinore shall
be acknowledged and recognized as a separate and equal contributor with EVMWD for the cost
and voting rights accorded under this AGREEMENT attributed to EVMWD for
SUPPLEMENTAL WATER addition, and
U. Whereas, the TASK FORCE AGENCIES have considered many alternative cost
sharing methodologies based on TMDL assigned load allocation, load reduction, and
permgk4tions thereof; and
V. Whereas, certain TASK FORCE AGENCIES were strong proponents of cost
sharing based on load allocation and other TASK FORCE AGENCIES were strong proponents
of cost sharing based on load reduction, and
W. Whereas, these TASK FORCE AGENCIES have been unable to agree upon a
methodology for distributing costs based on either an allocation or a load reduction
methodology; and
X. Whereas, the TASK FORCE AGENCIES have reviewed and agreed upon an
interim negotiated cost allocation methodology acceptable to all TASK FORCE AGENCIES for
the purposes of initiating the TASK FORCE, based on consideration of TMDL assigned load
allocations, load reductions, and permutations thereof, and
Y. Whereas, the TASK FORCE AGENCIES agree that certain nutrient dischargers
have been either inappropriately named or not named as responsible parties for various tasks in
the BASIN PLAN AMENDMENT; and
Z. Whereas, the TASK FORCE AGENCIES agree that agricultural and dairy lands
are converting to urban and open space lands, and
AA. Whereas, the TASK FORCE AGENCIES agree that an amendment to the TMDL
to address, at minimum, the proper naming of responsible parties for various tasks in the TMDL
IMPLEMENTATION PLAN, to correct the load allocation and waste load allocations to
properly address the impacts of SUPPLEMENTAL WATER on Lake Elsinore, and to revise the
load allocation and waste load allocations to address the ongoing conversion of agriculture and
dairy lands to urban and/or open space should be addressed as part of a revision to the TMDL
IMPLEMENTATION PLAN, and
BB. Whereas, the TASK FORCE AGENCIES agree that upon amendment of the
existing BASIN PLAN AMENDMENT, including the TMDL IMPLEMENTATION PLAN, by
the Regional Board to address, at a minimum, the issues described in Recital Z, the TASK
FORCE AGENCIES will amend this AGREEMENT to revise the cost allocation methodology
for future fiscal years to incorporate a task-specific cost sharing methodology, based on assigned
load allocation or waste load allocation of TASK FORCE AGENCIES, or categories of TASK
FORCE AGENCIES, responsible for each TMDL IMPLEMENTATION PLAN task, and
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CC. Whereas, MARB agrees to budget for and to participate in the TASK FORCE,
provided that sufficient funds are appropriated by the Congress, in FY 06-07 and future years,
and on the condition that funding requirements under this agreement do not violate the Anti-
deficiency Act, and provided that the Task Force Agencies agree to relocate the proposed
monitoring station from Kitching Channel to the Heacock drainage channel, and use any fees
provided by MARB, for participation in this program, to establish and monitor this station.
s
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H. COVENANTS
NOW, THEREFORE; in consideration of the foregoing recitals and mutual covenants
contained herein, the TASK FORCE AGENCIES agree as follows:
1. Creation of a Task Force. There is hereby created a "Lake Elsinore and Canyon
Lake TMDL Task Force" ("TASK FORCE") initially consisting of the TASK
FORCE AGENCIES and certain Non-Voting, Non-Funding Members as more
specifically provided for in paragraph 2 below.
2. Representation on the Task Force.
a. Appointment. Concurrently with the execution of this Agreement, each
TASK FORCE AGENCY shall, in accordance with such TASK FORCE
AGENCY's own governing provisions, appoint one primary
representative to the TASK FORCE and one alternate representative to act
in the absence of the primary representative (hereinafter collectively
referred to as "REPRESENTATIVES" or individually as
"REPRESENTATIVE"). The REPRESENTATIVES shall have the
authority to act on behalf of its appointing TASK FORCE AGENCY. The
REPRESENTATIVES shall serve at the pleasure of the appointing TASK
FORCE AGENCY and may be removed at any time, with or without
cause by such TASK FORCE AGENCY; provided, however, that the
TASK FORCE AGENCIES acknowledge and agree the continuity of
representation on the TASK FORCE is important to the overall
effectiveness of the TASK FORCE, and the TASK FORCE AGENCIES
further agree to ensure such continuity whenever possible.
b. Additional Agencies. The TASK FORCE AGENCIES acknowledge and
agree that the effectiveness of the TASK FORCE may be improved by the
inclusion of other agencies as additional TASK FORCE AGENCIES to
the TASK FORCE. Such agencies may join the TASK FORCE on such
written terms and conditions as are acceptable to all then existing TASK
FORCE AGENCIES of the TASK FORCE, including, but not limited to,
agreed-upon cash contributions for past, present, and/or future work, of
the TASK FORCE. The inclusion of such agencies as additional TASK
FORCE AGENCIES to the TASK FORCE shall be effected by a written
amendment to this AGREEMENT signed by all then existing TASK
FORCE AGENCIES. Such additional TASK FORCE AGENCIES shall
each appoint their TASK FORCE primary REPRESENTATIVE and
alternate REPRESENTATIVE as provided in Section II.2.a. above or in
said written amendment. The following agencies will be considered for
inclusion as additional TASK FORCE AGENCIES in future amendments
to this AGREEMENT within the meaning of this section:
Any other named stakeholder in any future amendments of the
BASIN PLAN AMENDMENT.
Page 12 of 21
C. Non-Voting Non-Funding Members. The Regional Board, Lake Elsinore
and San Jacinto Watersheds Authority and the San Jacinto River
Watershed Council are hereby appointed as Non-Voting, Non-Funding
Members of the TASK FORCE. Additional Non-Voting, Non-Funding
Members may be appointed by a majority vote of the TASK FORCE
representatives. Non-Voting, Non-Funding Members appointed herein,
and any appointed in the future are authorized only to make
recommendations upon the functioning of this TASK FORCE and the
development of this program. Federal, State and local regulatory agencies
acting as Non-Voting, Non-Funding Members, now or in the future, retain
z authority to regulate TASK FORCE MEMBERS only to the extent that
they are so authorized under state and federal law.
d. Dairy and Agricultural Operators. The TASK FORCE AGENCIES
acknowledge that the Western Riverside County Agriculture Coalition
(WRCAC) shall represent the collective interest of both agricultural and
dairy operators in the San Jacinto River Watershed in the TASK FORCE
at this time. WRCAC shall appoint two primary TASK FORCE
REPRESENTATIVES and two alternate REPRESENTATIVES as
provided in Section 11.2.a. One set of REPRESENTATIVES shall be
designated for agricultural operator interests, the other set of
REPRESENTATIVES shall be designated for dairy interests for the
purposes of this TASK FORCE.
e. Committees. The TASK FORCE may establish subcommittees, consisting
of REPRESENTATIVES and Non-Voting, Non-Funding Members who
shall be selected by, and serve at the pleasure of, the TASK FORCE.
Task Force Administrator. A TASK FORCE administrator (hereinafter
"TASK FORCE ADMINISTRATOR") shall be appointed by the TASK
FORCE. The TASK FORCE ADMINISTRATOR shall have the
following administrative responsibilities:
(1) Organizing and facilitating TASK FORCE meetings;
(2) Secretarial, clerical, and administrative services;
(3) Managing TASK FORCE funds and preparing annual reports of
TASK FORCE assets and expenditures;
(4) Retaining TASK FORCE-authorized consultants; and
(5) Seeking funding grants to assist with achieving the work of the
TASK FORCE and other goals and objectives approved by TASK
FORCE AGENCIES.
The TASK FORCE AGENCIES hereby appoint the Lake Elsinore and
San Jacinto Watersheds Authority as the initial TASK FORCE
ADMINISTRATOR.
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g. Meetings of the Task Force.
(i) Frequency and Location. The TASK FORCE shall, by resolution
or motion, agree upon the time and place for holding its regular
meetings. Special meetings may be called at the request of the
TASK FORCE ADMINISTRATOR or by a majority of the TASK
FORCE REPRESENTATIVES.
(ii) Task Force Chair. The TASK FORCE REPRESENTATIVES shall
select a chair and a vice-chair. The term of the chair and vice-chair
shall be one year and shall be rotated among the TASK FORCE
REPRESENTATIVES interested in serving as chair.
(iii) Quorum. One half or more of the REPRESENTATIVES of the
TASK FORCE shall constitute a QUORUM.
(iv) Voting. Actions of the TASK FORCE shall be validly taken only
when a QUORUM is present and upon the affirmative vote of a
MAJORITY of the TASK FORCE REPRESENTATIVES. A
MAJORITY of the REPRESENTATIVES shall be determined as
follows:
Each TASK FORCE AGENCY shall have one vote (herein
VOTE) assigned for each $1,000 increment of PRO RATA COST
SHARE, as described in Paragraph 11.5 below, contributed to the
TASK FORCE budget developed for a given fiscal year
(hereinafter "BUDGET"). A MAJORITY of the
REPRESENTATIVES shall consist of greater than 50% of the
total VOTES based on the BUDGET for the fiscal year during
which the action is taken.
(v) Brown Act. All meetings of the TASK FORCE or any of its
committees shall be conducted as may be required by any
applicable provisions of the Ralph M. Brown Act (California
Government Code §§54950 et seq.). The provisions contained in
the Ralph M. Brown Act shall prevail in the event of any conflict
with provisions contained in this AGREEMENT.
The TASK FORCE may adopt such additional rules and regulations as may be required
for the conduct of its affairs so long as such rules and regulations do not conflict with this
AGREEMENT.
3. Work of the Task Force. The TASK FORCE shall perform the following tasks in
accordance with guidelines established by the Regional Board:
a. To retain consulting services to review scientific and other assumptions
contained within the TMDL. Consultant(s) shall provide a report
identifying preliminary TMDL opportunities such as site specific
objectives, pollutant trading strategies, and integration strategies. The final
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scope of work shall be approved by the Task Force. The report shall
specifically consider assumptions supporting the TMDL. The report
should also provide preliminary analysis of the ability to achieve in-lake
nutrient reductions and verify that load assignments are appropriate. Upon
completion of the report, Consultant(s) shall also review work described
herein, and make recommendations to ensure that work is specifically
designed to resolve any deficiencies, where appropriate. Consultant(s)
shall also coordinate development of BASIN PLAN AMENDMENT
language, in coordination with the Regional Board, which can be used to
revise the TMDLs as part of the Regional Board's Triennial Reviews at a
minimum, or no later than by June 2010.
b. TMDL IMPLEMENTATION PLAN Task 4 - Develop and Implement a
Watershed-wide Nutrient Monitoring Program This program shall obtain
data necessary to update the Lake Elsinore and Canyon Lake Nutrient
TMDL, and to determine compliance with interim and final nitrogen and
phosphorus allocations, and compliance with the nitrogen and phosphorus
TMDLs. Monitoring and management of monitoring data to update the
Lake Elsinore and Canyon Lake Nutrient TMDL shall commence
immediately upon approval of this AGREEMENT. An annual report
summarizing the data collected for the year shall be submitted to the
Regional Board by August 15 of each year commencing in 2007.
a TMDL IMPLEMENTATION PLAN Task 4 - Develop and Implement a
Lake Elsinore and Canyon Lake Nutrient Monitoring Program. This
program shall obtain data necessary to update the Lake Elsinore and
Canyon Lake Nutrient TMDLs, and to determine compliance with interim
and final nitrogen, phosphorus, chlorophyll a and dissolved oxygen
numeric targets. In addition, the monitoring program shall determine the
relationship between ammonia toxicity and the total nitrogen allocation to
ensure that the total nitrogen allocation will prevent ammonia toxicity in
Lake Elsinore and Canyon Lake. Monitoring and management of
monitoring data shall commence immediately upon approval of this
agreement. An annual report summarizing the data collected for the year
shall be submitted to the Regional Board by August 15 of each year
commencing in 2007.
d. TMDL IMPLEMENTATION PLAN Tasks 9 and 10 - Develop and
Implement a Plan to Reduce NUTRIENTS in Lake Elsinore sediments and
develop a sediment nutrient treatment evaluation plan for Canyon Lake
The plans shall evaluate the efficacy of various in-lake treatment
technologies to prevent the release of NUTRIENTS from lake sediments
as a long-term strategy for control of NUTRIENTS in the sediment. The
program may also include a sediment nutrient monitoring program to
evaluate the effectiveness of any technologies that may be implemented.
Target Date for Completion: March 31, 2007.
e. TMDL IMPLEMENTATION PLAN Task I 1 - Develop and Implement a
Plan and Schedule for Updating the Existing Lake Elsinore/San Jacinto
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River Watershed Nutrient Model and the Canvon Lake and Lake Elsinore
In-Lake Models. Develop and implement a plan and schedule to update
and execute Watersheds and in-lake models to track. the progress of
TMDL efforts. In-lake models should be analyzed as soon as sufficient
data becomes available. Target Date for Completion: March 31, 2007.
f TMDL IMPLEMENTATION PLAN Task 12 - Investigate, Develop and
Implement a Pollutant Trading Plan. Investigate the feasibility of
pollutant trading in the Watersheds, and develop a feasibility plan for
Regional Board review and approval. Target Date for Completion:
September 30, 2007.
g. Investigate Long Term TMDL Implementation Structure, Cost Sharing
Formula and Funding Sources. Investigate possible long term
administrative structures, cost sharing formulas and funding sources that
can be used to obtain compliance with the TMDL requirements. Target
Date for Completion: June 30, 2010.
h. Other Tasks. The TASK FORCE may undertake such other plans,
programs and studies as authorized by the TASK FORCE pursuant to
II.2.g. of this AGREEMENT.
i. Limitations on MARB and Forest Service. As described above in Section
LH, MARB is an agency of the federal government and is therefore unable
to participate in each and every aspect of Section 3 to the same extent as
other TASK FORCE MEMBERS. To the extent that it is unable to
participate in any tasks under section 3, it reserves the right, in its sole
discretion, to participate to the fullest extent that it is able, as a matter of
comity.
4. Budgets. Beginning in FY2007-2008, the total annual budget (BUDGET),
adjusted to remove in-kind services, grant funding and funding credits associated
With this AGREEMENT shall not exceed $800,000, except as authorized by the
TASK FORCE via two-thirds approval via VOTES based on the BUDGET for
the then current fiscal year pursuant to II.2.g. of this AGREEMENT. The TASK
FORCE ADMINSTRATOR shall prepare and submit a proposed BUDGET for
each fiscal year of this AGREEMENT to the TASK FORCE AGENCIES by
November 30th. The proposed BUDGET shall include all anticipated costs for
the scope(s) of work developed by the TASK FORCE for the next fiscal year.
The TASK FORCE REPRESENTATIVES shall approve the BUDGET by
December 31'. Each TASK FORCE AGENCY shall pay its PRO-RATA
SHARE of the approved fiscal year's TASK FORCE BUDGET and arrears by
August 31" of the following year. The BUDGET for the eighteen (18) month
period starting January 1, 2006 and extending through June 30, 2007 and
estimated fiscal year BUDGETS through June 30, 2010 are included as
Attachment A to the AGREEMENT. Approval of this AGREEMENT shall
constitute approval of the BUDGET through June 30, 2007. Payment of the
BUDGET through June 30, 2007 shall be by August 31, 2006, or within 30 days
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of the approval of this AGREEMENT by each TASK FORCE AGENCY,
whichever is sooner.
The TASK FORCE ADMINISTRATOR shall endeavor to minimize carry-over
fund balances to those necessary to complete work of the TASK FORCE and to
maintain contingencies limited to those necessary to ensure work of the TASK
FORCE is not impeded. Excess not necessary to complete budgeted work of the
TASK FORCE or maintain adequate reserves shall be credited back to the TASK
FORCE AGENCIES in the BUDGET consistent with the PRO-RATA SHARE
methodology described in Paragraph 11.5 below. THE TASK FORCE
AGENCIES shall agree to a reasonable reserve balance as part of each year's
BUDGET.
After September 30 of each year, the TASK FORCE ADMINSTRATOR shall
provide an accounting of all PRO RATA SHARES collected via cash or in-kind
contributions. If PRO RATA SHARES collected are less than BUDGET, the
TASK FORCE shall meet with Regional Board staff to determine appropriate
priorities for scheduled TASK FORCE work and revise BUDGET based on
available funds.
5. Pro-Rata Share Calculation. The annual PRO-RATA SHARE shall be calculated
in the following manner:
The PRO-RATA SHARE for MS4 CO-PERMITTEES, Agricultural Operators
and EVMWD shall be based on the BUDGET reduced by the value of available
grant funding identified in Section 1 of Attachment A and in-kind services
identified in Section 3 of Attachment A (LINE Ik BUDGET). The PRO-RATA
SHARE for MS4 CO-PERMITTEES, and Agricultural Operators shall each be
28.5% of the LINE Ik BUDGET. Based on the prior agreement of EVMWD and
the CITY OF LAKE ELSINORE involving the sharing of cost for supplemental
water into Lake Elsinore, the PRO-RATE SHARE for EVMWD and the CITY
OF LAKE ELSINORE shall each be 14.25% of the LINE 1 K BUDGET.
The PRO-RATA SHARE for Dairy shall be 5% of the LINE 1 k BUDGET.
The PRO-RATA SHARE for RCFC&WCD shall be the cash value of the in-kind
services described in Section 3 of Attachment A.
The PRO-RATA SHARE for all other TASK FORCE AGENCIES shall be as a
base amount set forth in the BUDGET.
The PRO-RATA SHARE for additional TASK FORCE AGENCIES shall be per
in kind services and/or an amount agreed upon via written amendment of this
AGREEMENT per Section II.2.b.
If the estimated funds collected under the PRO-RATA SHARE calculations
exceed the BUDGET, the contributions of MS4 CO-PERMITTEES, EVMWD,
City of Lake Elsinore, Agricultural Operators, Dairy and other TASK FORCE
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AGENCIES contributing in excess of the base amount shall be raised or reduced
proportionately based on the percentage of their PRO-RATA SHARE, until the
estimated total PRO-RATA SHARES equals the BUDGET.
RCFC&WCD shall provide the TASK FORCE ADMINSTRATOR with annual
individual MS4 CO-PERMITTEE cost share distribution of the MS4 CO-
PERMITTEES PRO-RATA SHARE for budgets following Fiscal Year 2006-07.
The methodology used by RCFC&WCD to calculate the MS4 CO-PERMITEE
cost share distribution may be amended at the NPDES MS4 Management Steering
Committee.
6. In-Kind Credits. The PRO-RATA SHARE of a TASK FORCE AGENCY shall
be reduced by the value of IN-KIND CREDITS provided toward agreed-upon
budgeted tasks by, or on behalf, of the TASK FORCE AGENCY(S). Credits
shall be applied to each budget period and adjusted at the end of each budget year
based on actual verified costs.
Modifications to the TASK FORCE PRO-RATA SHARE methodolog . The
methodology deriving the TASK FORCE PRO-RATA SHARE as provided in
Section 11.5 of this AGREEMENT may be modified upon written approval of all
then existing TASK FORCE AGENCIES whose PRO-RATA SHARE would be
affected.
The TASK FORCE AGENCIES shall cooperate fully with one another to attain
the purposes of this AGREEMENT.
Nothing in this AGREEMENT, nor the work set forth in this AGREEMENT, nor
any activity approved or carved out by the TASK FORCE AGENCIES
hereunder, is intended to be nor shall be interpreted as a waiver by TASK FORCE
AGENCIES of the "Maximum Extent Practicable" standard set forth in the Clean
Water Act (33 U.S.C. Section 1251 et .seq.).
10. Each TASK FORCE AGENCY shall indemnify, defend, and hold each of the
other TASK FORCE AGENCIES, including their special districts, officials,
agents, officers, and employees, harmless from and against any and all liability
and expense arising from any act or omission of such TASK FORCE AGENCY,
its officials, agents, officers, and employees, in connection with this
AGREEMENT, including but not limited to defense costs, legal fees, claims,
actions, and causes of action for damages of any nature whatsoever, including but
not limited to bodily injury, death, personal injury, or property damage; provided,
however, that no TASK FORCE AGENCY shall indemnify another TASK
FORCE AGENCY for that TASK FORCE AGENCY's own negligence or willful
misconduct.
MARB and the Forest Service, as agencies of the federal government, are unable
to indemnify or hold harmless any other TASK FORCE AGENCY for any
liability arising under this agreement. MARB and the Forest Service expressly do
not indemnifv or hold harmless any TASK FORCE AGENCY for any injuries or
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liabilities, to itself, to any third party or to MARB, or the Forest Service, or its
employees under this agreement or any activities carried out under authority of
this agreement.
11. In light of the provisions of Section 895.2 of the Government Code of the State of
California imposing certain tort liability jointly upon public entities solely by
reason of such entities being parties to an agreement (as defined in Section 895 of
said Code), each of the TASK FORCE AGENCIES hereto, pursuant to the
authorization contained in Sections 895.4 and 895.6 of said Code, shall assume
the full liability imposed upon it or any of its officers, agents, or employees by
law for injury caused by any act or omission occurring in the performance of this
AGREEMENT to the same extent that such liability would be imposed in the
absence of Section 895.2 of said Code. To achieve the above stated purpose, each
of the TASK FORCE AGENCIES indemnifies, defends, and holds harmless each
other TASK FORCE AGENCY for any liability, cost, or expense that may be
imposed upon such other TASK FORCE AGENCY solely by virtue of said
Section 895.2. The provisions of Section 2778 of the California Civil Code are
made a part hereof as if incorporated herein.
MARB and the Forest Service, as agencies of the federal government, are unable
to indemnify or hold harmless any other TASK FORCE AGENCY for any
liability arising under this agreement. MARB and the Forest Service expressly do
not indemnify or hold harmless any TASK FORCE AGENCY for any injuries or
liabilities, to itself, to any third party or to MARB or Forest Service or their
employees under this agreement or any activities carried out under authority of
this agreement. Tort liability for federal employees, including employees of
MARB and Forest Service, is expressly authorized and limited by the Federal
Tort Claims Act, which will control liability of MARB and the Forest Service and
their employees under the terms of this agreement.
12. All obligations of CALTRANS under the terms of this AGREEMENT are subject
to the appropriation of the resources by the Legislature and the allocation of
resources by the California Transportation Commission. This AGREEMENT has
been written before ascertaining the availability of Federal or State legislative
appropriation of funds, for the mutual benefit of the TASK FORCE AGENCIES
in order to avoid program and fiscal delays that would occur if the AGREEMENT
were executed after that determination was made. This AGREEMENT is valid
and enforceable as to CALTRAINTS as if sufficient funds have been made available
to CAL TRANS by the United States Government or California State Legislature
for the purposes set forth in this AGREEMENT. If the United States Government
or the California State Legislature does not appropriate sufficient funds for
CALTRANS to participate in this AGREEMENT, this AGREEMENT may be
amended in writing by the TASK FORCE AGENCIES to reflect any agreed-upon
reduction in the percentage of funds contributed by CALTRANS to continue its
participation in this AGREEMENT. CALTRANS, however, has the option to
withdraw from this AGREEMENT in the event sufficient funds are not
appropriated for CAL TRANS. Should CALTRANS exercise its option to
withdraw from this AGREEMENT, CALTRANS shall remain responsible for its
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share of liability, if any, incurred while participating in this AGREEMENT.
13. No TASK FORCE AGENCY shall have a financial obligation to any other TASK
FORCE AGENCY under this AGREEMENT, except as expressly provided
herein.
14. Any notices, invoices, reports, correspondence, or other communication
concerning this AGREEMENT shall be directed to the TASK FORCE AGENCY
REPRESENTATIVE on file with the TASK FORCE ADMINISTRATOR, except
that any TASK FORCE AGENCY may change its name or address by giving the
other TASK FORCE AGENCIES at least ten days written notice of the new name
or address.
15. The TASK FORCE AGENCIES are, and shall at all times remain as to each
other, wholly independent entities. No TASK FORCE AGENCY to this
AGREEMENT shall have power to incur any debt, obligation, or liability on
behalf of any other TASK FORCE AGENCY unless expressly provided to the
contrary by this AGREEMENT. No employee, agent, or officer of a TASK
FORCE AGENCY shall be deemed for any purpose whatsoever to be an agent,
employee or officer of another TASK FORCE AGENCY.
16. This AGREEMENT shall be binding upon and shall inure to the benefit of the
respective successors, heirs, and assigns of each TASK FORCE AGENCY.
17. This AGREEMENT shall be governed by, interpreted under and construed and
enforced in accordance with the laws of the State of California, except as to the
Forest Service and the March Air Reserve Base to whom federal law is
applicable.
18. If any provision of this AGREEMENT shall be determined by any court to be
invalid, illegal or unenforceable to any extent, the remainder of this
AGREEMENT shall not be affected and this AGREEMENT shall be construed as
if the invalid, illegal, or unenforceable provision had never been contained in this
AGREEMENT.
19. Each individual TASK FORCE AGENCY has been represented by its own
separate counsel in the preparation and negotiation of this AGREEMENT.
Accordingly, this AGREEMENT shall be construed according to its fair language
and any ambiguities shall not be resolved against the drafting TASK FORCE
AGENCY.
20. Each of the persons signing below on behalf of a TASK FORCE AGENCY
represents and warrants that he or she is authorized to sign this AGREEMENT on
behalf of such TASK FORCE AGENCY.
21. Duration of Agreement. This AGREEMENT shall terminate June 30, 2010
(unless extended by mutual agreement of all TASK FORCE AGENCIES),
provided that all debts and liabilities of the TASK FORCE are satisfied.
Notwithstanding the foregoing, each TASK FORCE AGENCY reserves the right
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to withdraw from the TASK FORCE at any time, upon sixty (60) days' prior
written notice to the TASK FORCE. TASK FORCE contingency, projects and
studies underway at the time of withdrawal shall continue to be fully funded by
the withdrawing TASK FORCE AGENCY until the end of the fiscal year in
which the TASK FORCE AGENCY gave notice to withdraw.
22. Counterparts. This AGREEMENT may be executed simultaneously or in any
number of counterparts, each of which shall be deemed an original and together
shall constitute one and the same instrument.
23. Amendment. This AGREEMENT may not be amended except in a writing
signed by all the TASK FORCE AGENCIES.
24. Effective Date. This AGREEMENT shall become effective when it has been
executed by all of the TASK FORCE AGENCIES.
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