18-0907_ORANGE COUNTY COASTKEEPER_Settlement Agreement
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NOTICE OF SETTLEMENT AND LODGING OF PROPOSED CONSENT DECREE
Case No. 8:17-CV-00956-JLS-DFM
Jennifer F. Novak, SBN 183882
novak@jfnovaklaw.com
LAW OFFICE OF JENNIFER F. NOVAK
500 Silver Spur Road, Suite 206
Rancho Palos Verdes, California 90275
Telephone: (310) 693-0775
Facsimile: (310) 957-2624
Colin Kelly, SBN 266956
Sarah Spinuzzi, SBN 305658
colin@coastkeeper.org
sarah@coastkeeper.org
ORANGE COUNTY COASTKEEPER
3151 Airway Avenue, Suite F-110
Costa Mesa, California 92626
Telephone: (714) 850-1965
Facsimile: (714) 850-1592
Attorneys for Plaintiff Orange County Coastkeeper
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ORANGE COUNTY COASTKEEPER, a
California non-profit corporation,
Plaintiff,
v.
CITY OF SAN JUAN CAPISTRANO, a
California municipal corporation;
BLENHEIM FACILITY
MANAGEMENT, LLC, a Delaware
limited liability company,
Defendants.
Case No: 8:17-cv-00956-JLS-DFM
NOTICE OF SETTLEMENT
AND LODGING OF PROPOSED
CONSENT DECREE
(Federal Water Pollution Control
Act, 33 U.S.C. § 1251, et seq.)
Complaint Filed: June 2, 2017
Amended Complaint Filed: July 5,
2017
Trial Date: None
Judge: Hon. Josephine L. Staton
Courtroom: 10A
Case 8:17-cv-00956-JLS-DFM Document 59 Filed 09/07/18 Page 1 of 2 Page ID #:1926
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NOTICE OF SETTLEMENT AND LODGING OF PROPOSED CONSENT DECREE
Case No. 8:17-CV-00956-JLS-DFM
PLEASE TAKE NOTICE that the parties have reached a tentative settlement
in this proceeding. Their agreement is reflected in the proposed Consent Decree
attached to this notice as “Exhibit A,” a copy of which is being sent to the United
States Department of Justice (“DOJ”) and the United States Environmental Protection
Agency (“U.S. EPA”) for a mandatory 45-day review period as required by Code of
Federal Regulations, title 40, section 135.5.
Once DOJ acknowledges its receipt of the proposed Consent Decree, Plaintiff
will provide the Court with written notice of the commencement of the 45-day review
period. At the end of the 45-day review period, Plaintiff will notify the Court of any
objections received from the reviewing agencies and will submit the proposed
Consent Decree for consideration and approval by the Court.
Should the Court require any additional information, the undersigned will be
pleased to provide it upon request.
Dated: September 7, 2018 LAW OFFICE OF JENNIFER F. NOVAK
By: ____________/s/__________________
Jennifer F. Novak
Attorneys for Plaintiff
Orange County Coastkeeper
Case 8:17-cv-00956-JLS-DFM Document 59 Filed 09/07/18 Page 2 of 2 Page ID #:1927
Exhibit A
Case 8:17-cv-00956-JLS-DFM Document 59-1 Filed 09/07/18 Page 1 of 28 Page ID
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61147.20013\31432304.2 [PROPOSED] CONSENT DECREE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ORANGE COUNTY COASTKEEPER, a California non-profit corporation,
Plaintiff,
v.
CITY OF SAN JUAN CAPISTRANO, a California municipal corporation; BLENHEIM FACILITY MANAGEMENT, LLC, a Delaware limited liability company,
Defendants.
Case No. 8:17-cv-00956-JLS-DFM
[PROPOSED] CONSENT DECREE
33 U.S.C. § 1251 et seq.
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61147.20013\31432304.2 - 1 - [PROPOSED] CONSENT DECREE
CONSENT DECREE
The following Consent Decree is entered into by and between Plaintiff
Orange County Coastkeeper (“Coastkeeper”) and Defendants City of San Juan
Capistrano (“City”) and Blenheim Facility Management, LLC (“Blenheim”) (City
and Blenheim are referred to collectively as “Defendants”). The entities entering
into this Consent Decree are each an individual “Settling Party” and collectively
“Settling Parties.”
RECITALS
A. WHEREAS, Coastkeeper is a non-profit public benefit corporation
organized under the laws of the State of California;
B. WHEREAS, Coastkeeper’s mission is to promote and restore water
resources that are drinkable, fishable, swimmable, and sustainable;
C. WHEREAS, City owns certain real property commonly known as
“Rancho Mission Viejo Riding Park at San Juan Capistrano” (“Riding Park”),
which is located at 30753 Avenida La Pata, San Juan Capistrano, California 92675
(“Property”). The Property is bounded on one side by San Juan Creek (“Creek”).
An Arizona Crossing extends from the Property, across the Creek (“Crossing”).
The City owns the Crossing.
D. WHEREAS, City contracted with Blenheim to manage and operate
the Riding Park in accordance with the terms and provisions of a series of
Management Agreements. The Riding Park’s permitted uses are limited to hosting
sporting events, equestrian events, and community recreational and sports-related
activities.
E. WHEREAS, on or about March 31, 2017, and May 4, 2017,
Coastkeeper sent letters by certified mail to Defendants (collectively, “Notice
Letters”). The Notice Letters notified Defendants of Coastkeeper’s intention to file
suit for certain alleged violations of the Clean Water Act after sixty (60) days
pursuant to 40 C.F.R. § 135.2.
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61147.20013\31432304.2 - 2 - [PROPOSED] CONSENT DECREE
F. WHEREAS, on or about June 2, 2017, more than sixty (60) days after
the first Notice Letter, Coastkeeper filed a Complaint against Defendants in the
United States District Court, Central District of California (Civil Case No. 8:17-cv-
00956) (“Action”). The Complaint alleged: (1) that City failed to effectively
prohibit discharges of non-stormwater into the Municipal Separate Storm Sewer
System (“MS4”) in violation of their MS4 permit and the Clean Water Act; (2) that
the Riding Park’s discharges to the MS4 system caused or contributed to
exceedances of water quality standards in violation of the MS4 permit and the
Clean Water Act; (3) that the Defendants discharged dredge and/or fill material into
waters of the United States without a dredge and fill permit; (4) that the Defendants
engaged in dredge and/or fill activities at the Riding Park without a state water
quality certification; (5) that City engaged in dredge and fill activities at the
Crossing without a dredge and fill permit; and (6) that City engaged in in dredge
and/or fill activities at the Crossing without a state water quality certification.
G. WHEREAS, on or about July 5, 2017, Coastkeeper filed a First
Amended Complaint in the Action. The First Amended Complaint included
additional claims, alleging: (1) that the Riding Park operates as a large concentrated
animal feeding operation (“CAFO”) discharging without a National Pollutant
Discharge Elimination System (“NPDES”) permit; (2) alternatively, that the Riding
Park operates as a medium CAFO discharging without an NPDES permit; and (3)
that the Riding Park discharges storm water without General Industrial Storm
Water Permit coverage.
H. WHEREAS, Coastkeeper contends that Defendants’ operations at the
Riding Park and in San Juan Creek result in discharges of pollutants directly into
San Juan Creek or into onsite tributaries, which flow into San Juan Creek, and
ultimately the Pacific Ocean (“Receiving Waters”) and further contend those
discharges are regulated by the Clean Water Act, Sections 301(a), 402, 33 U.S.C.
§§ 1311(a), 1342;
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61147.20013\31432304.2 - 3 - [PROPOSED] CONSENT DECREE
I. WHEREAS, Coastkeeper acknowledges that Defendants have now
enrolled the Riding Park under the Industrial General Storm Water Permit (“Storm
Water Permit”) through the State Water Resources Control Board (“State Board”);
J. WHEREAS, Coastkeeper acknowledges that Defendants have
submitted to the California Regional Water Quality Control Board, San Diego
Region (“Regional Board”) a Report of Waste Discharge (“ROWD”) and Nutrient
Management Plan (“NMP”) in order to obtain an individual large CAFO NPDES
permit for the Riding Park;
K. WHEREAS, Coastkeeper alleges Defendants are in violation of the
substantive and procedural requirements of the Clean Water Act;
L. WHEREAS, Defendants deny all allegations and claims contained in
the Notice Letters and Coastkeeper’s Complaint and First Amended Complaint
filed in the Action and reserve all rights and defenses with respect to such
allegations and claims;
M. WHEREAS, the Settling Parties have agreed that it is in their mutual
interest, and therefore choose, to resolve Coastkeeper’s allegations in the Notice
Letters and Action through settlement and avoid the cost and uncertainties of
further litigation;
N. WHEREAS, all actions taken by Defendants pursuant to this Consent
Decree will be made in compliance with all applicable Federal and State laws and
local rules and regulations.
AGREEMENT
NOW, THEREFORE, it is hereby stipulated between the Settling Parties
for the sole purpose of facilitating entry and enforcement of this Consent Decree
and ordered and decreed by the Court as follows:
1. The Court has jurisdiction over the subject matter of this action
pursuant to Section 505(a)(1)(A) of the Clean Water Act, 33 U.S.C. §
1365(a)(1)(A).
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61147.20013\31432304.2 - 4 - [PROPOSED] CONSENT DECREE
2. Venue is appropriate in the Central District Court pursuant to Section
505(c)(1) of the Clean Water Act, 33 U.S.C. § 1365(c)(1), because the alleged
violations took place within this District.
3. The First Amended Complaint alleges claims upon which, if proved,
relief may be granted against Defendants pursuant to Section 505 of the Clean
Water Act, 33 U.S.C. § 1365.
4. Coastkeeper has standing to bring this action.
5. By so stipulating, and because they do so only in furtherance of this
Consent Decree, Defendants do not admit or concede any fact alleged by
Coastkeeper in the Action to support its standing (in either this case or any future
litigation) or any of its claims.
I. OBJECTIVES
6. It is the express purpose of the Settling Parties entering into this
Consent Decree to further the objectives set forth in the Clean Water Act, 33 U.S.C.
§ 1251 et seq., and to resolve those issues alleged by Coastkeeper in its 60-day
Notice Letters and Complaints in the Action.
7. In light of these objectives and as set forth fully below, Defendants
agree to comply with the provisions of this Consent Decree and all applicable
provisions of the Clean Water Act, including sections 402, 404, and 401.
II. AGENCY REVIEW, EFFECTIVE DATE, TERM OF CONSENT
DECREE
8. Agency Review. Coastkeeper will submit this Consent Decree to the
United States Department of Justice and the United States Environmental
Protection Agency (“U.S. EPA”) (collectively “Federal Agencies”) within three (3)
days after the final signature of the Settling Parties for agency review consistent
with 40 C.F.R. § 135.5. The agency review period expires forty-five (45) days after
receipt by both Federal Agencies, as evidenced by written acknowledgement of
receipt by the agencies or the certified return receipts. In the event that the Federal
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61147.20013\31432304.2 - 5 - [PROPOSED] CONSENT DECREE
Agencies object to entry of this Consent Decree, the Settling Parties agree to meet
and confer to attempt to resolve the issue(s) raised by the Federal Agencies within a
reasonable amount of time. Following the Federal Agencies’ review, Coastkeeper
shall submit the Consent Decree to the Court for entry.
9. Effective Date and Entry Date. The “Effective Date” of this Consent
Decree is the day this Consent Decree is fully executed by the Settling Parties. The
“Entry Date” of this Consent Decree is the day this Consent Decree is approved and
entered by the Court. If, by the end of the 45-day review period referenced in
Paragraph 8, the Federal Agencies offer no objection, the Settling Parties agree to
request immediate entry of this Consent Decree by the Court and if, after fourteen
(14) days, the Court has not entered the Consent Decree, the Settling parties agree
that any party to this agreement may request a hearing before the Court to seek
entry of the Consent Decree.
10. Term of Consent Decree. This Consent Decree shall terminate one
(1) reporting year after the Riding Park receives full NPDES permit coverage as a
CAFO and City completes improvements to retain storm water from a 25-year, 24-
hour storm event; or one year after the Riding Park has ceased to operate as a
medium or large CAFO and filed a Notice of Termination with the State Board; or
one year after the Crossing removal is complete; or one year after the Creek bank
Restoration is complete, whichever one of these events is later (“Termination
Date”). The Consent Decree term shall continue if one of the Settling Parties has
invoked Dispute Resolution in accordance with Paragraph 32, in which case the
Consent Decree will terminate within the earlier of fifteen (15) days of notice by
the Settling Party that invoked Dispute Resolution that the dispute has been fully
resolved or an order of the federal court resolving the dispute and terminating the
Consent Decree.
//
//
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61147.20013\31432304.2 - 6 - [PROPOSED] CONSENT DECREE
III. COMMITMENTS OF THE SETTLING PARTIES
A. RIDING PARK
11. Subject to the provisions of the Paragraph 15 of this Consent Decree,
City will ensure that Blenheim and any future operator of the Riding Park obtains
full NPDES permit coverage for the Riding Park pursuant to applicable federal and
state laws governing CAFOs (“NPDES Permit(s)”) and maintains its permit(s) as
long as the Riding Park operates as a medium or large CAFO.
12. CAFO Production Area Infrastructure. Subject to the provisions of
Paragraph 15 of this Consent Decree, City will design and construct improvements
to the CAFO production area, including any land application area, at the Riding
Park to retain all process waste water and storm water runoff from a 25-year, 24-
hour rainfall event no later than December 31, 2022.
13. NPDES Permit(s) Implementation. Subject to the provisions of
Paragraph 15 of this Consent Decree, City will ensure that Blenheim and any future
operator of the Riding Park implements the requirements of the NPDES Permit(s)
for the Riding Park, including, but not limited to, the following:
13.1. Subject to the provisions of Paragraph 12 of this Consent
Decree, operation and maintenance of the CAFO production area, including any
land application area, at the Riding Park to retain all process waste water and storm
water runoff from a 25-year, 24-hour rainfall event.
13.2. Inspections, monitoring, sampling, and reporting as required by
the NPDES Permit(s) for the Riding Park, including provisions to identify and
eliminate non-storm water discharges.
13.3. Revision and submission of the Riding Park’s Stormwater
Pollution Prevention Plan (“SWPPP”) consistent with the Riding Park’s NPDES
Permit(s), applicable state and federal law, and current operations at the Riding
Park within thirty (30) days following the Effective Date.
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61147.20013\31432304.2 - 7 - [PROPOSED] CONSENT DECREE
13.4. Revision and submission of the Riding Park’s Nutrient
Management Plan (“NMP”) consistent with the Riding Park’s NPDES Permit(s),
applicable state and federal law, and current operations at the Riding Park within
thirty (30) days following the Effective Date.
13.5. Implementation of the SWPPP and NMP consistent with the
Riding Park’s NPDES permit(s) and current operations.
13.6. Development and implementation of an employee training
program that meets the following requirements: within thirty (30) days following
the Entry Date, Blenheim shall develop and implement a training program for
employees and agents responsible for operations at the Riding Park that fall within
the SWPPP, NMP, monitoring and reporting requirements of the NPDES permit(s),
and this Consent Decree (“Training Program”). The Training Program shall ensure:
(1) that employees and operators understand day-to-day responsibilities for water
quality compliance under the Consent Decree, NPDES Permit(s), and state, federal,
and local laws; (2) that these employees and operators are properly trained to
perform the activities required by the Consent Decree, NPDES Permit(s), and state,
federal, and local laws; and (3) that sufficient numbers of managers, supervisors,
employees, and consultants are adequately trained to supervise day-to-day
operations to achieve overall compliance.
14. Subject to the provisions of Paragraph 15 of this Consent Decree, in
addition to maintaining the current BMPs at the Riding Park and complying with
NPDES Permit(s) for the Riding Park, City will ensure that Blenheim and any
future operator of the Riding Park develops, implements, and maintains BMPs
necessary to comply with the provisions of this Consent Decree and the Riding
Park’s NPDES Permit(s). In acknowledgment of the deadline for compliance with
Paragraph 12, City shall undertake the following interim measures to minimize
non-storm water discharges from the Riding Park:
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61147.20013\31432304.2 - 8 - [PROPOSED] CONSENT DECREE
14.1. Within thirty (30) days following the Effective Date, City shall
provide verification to Coastkeeper that it has installed a recording rain gauge
capable of continuously recording rainfall at the Riding Park to 0.01 inches. For
the term of the Consent Decree, City and the Riding Park’s operator shall maintain
the rain gauge in accordance with the manufacturer’s recommendations, maintain
records of all maintenance, and provide rainfall and maintenance records within
fourteen (14) days following a request by Coastkeeper.
14.2. Within thirty (30) days following the Effective Date, City shall
provide verification to Coastkeeper that no drains and/or pipes can directly
discharge from the Riding Park to San Juan Creek during rain events.
14.3. By December 31, 2018, Defendants will develop and begin to
implement a “Rain Event Action Plan” (“REAP”) that Blenheim and any future
operator of the Riding Park will implement before forecasted rain events. The
REAP will include BMPs to achieve the following:
14.3.1. Reducing the exposure of storm water to CAFO
production areas, trash, manure, bedding, temporary bathrooms, materials, metals,
and fueling areas.
14.3.2. Reducing or eliminating storm water run-off
directly into San Juan Creek through more robust use of sand bags, sediment traps,
wattles, or similar measures before rain events.
14.3.3. Identifying, and performing, any needed
maintenance to BMPs.
14.3.4. Pre-rain event inspections to ensure BMPs are
properly implemented.
14.3.5. Temporary installation of a berm to slow and/or
prevent the discharge of run-off from the Riding Park’s grass field into the on-site
tributaries, except if needed to prevent property damage.
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61147.20013\31432304.2 - 9 - [PROPOSED] CONSENT DECREE
14.4. If by January 1, 2020, the Riding Park remains in operation as a
medium or large CAFO, then by December 1, 2020, City will grade the area
between the stables and San Juan Creek to reduce run-off to San Juan Creek in the
event of a storm less than a 25-year, 24-hour storm event.
14.5. By the Entry Date, City will meet with the South Orange County
Wastewater Authority (“SOCWA”) to explore implementation of an adaptive BMP,
to be implemented by December 31, 2019, to pump run-off from the grass field into
SOCWA’s wastewater system. Should City determine that this type of adaptive
BMP is not technically or economically feasible to implement, it will provide
Coastkeeper with written explanation within thirty (30) days of this determination.
15. Cessation of Equestrian Event Operations. If during the Consent
Decree term, City chooses to permanently cease equestrian event operations at the
Riding Park and terminate NPDES Permit coverage for the Riding Park, City shall
comply with the following:
15.1. At least fourteen (14) days prior to terminating any NPDES
Permit coverage for the Riding Park, City shall notify Coastkeeper in writing
pursuant to the requirements of Paragraph 48 of this Consent Decree.
15.2. City shall ensure that the operator obtains all legally required
State, Federal, and local authorizations and approvals necessary to terminate any
NPDES Permit coverage for the Riding Park.
B. SAN JUAN CREEK BANK
16. Bank Restoration. City has prepared a San Juan Creek Restoration
and Bank Stabilization Report, dated June 2018 (the “Report”), as a conceptual
design plan for the stabilization and remediation of the Creek bank at the Riding
Park, and has decided to proceed with Alternative 2 in the Report (the “Restoration
Plan”). City shall implement the Restoration Plan and Coastkeeper will not object
to the concept of Alternative 2 as a means to achieve the Creek bank restoration but
retains the right to comment upon its design and implementation.
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61147.20013\31432304.2 - 10 - [PROPOSED] CONSENT DECREE
17. Within nine (9) months following the Entry Date, City will prepare
and submit the documents necessary to obtain all legally required approvals for
implementing the Restoration Plan, including: (i) a Clean Water Act 404 Permit,
nation-wide permit, or equivalent written approval from the U.S. Army Corps of
Engineers (“USACE”); (ii) a Clean Water Act 401 Certification or equivalent
statewide general water quality certification from the Regional Board; (iii) a
California Department of Fish and Wildlife streambed alteration agreement; (iv)
applicable California Environmental Quality Act (“CEQA”) and/or National
Environmental Protection Act (“NEPA”) compliance; (v) written notice to, and
approval from, the holders of any conservation easements; and (vi) all other
Federal, State, and local approvals or authorizations required to implement the
Restoration Plan.
18. City will diligently work to begin and complete the Restoration Plan
during the first dry season following City’s receipt of all required permits,
certifications, and approvals for the Restoration Plan, but will complete the work no
later than eighteen (18) months following City’s receipt of the required permits,
certifications, and approvals.
C. CROSSING
19. Debris Removal. City will prepare and implement a conceptual
design plan for the removal of the remaining Crossing material1 (the “Crossing
Removal Plan”), and Coastkeeper will not object to City’s submission of such a
design plan but retains the right to comment upon its design and implementation.
20. Within nine (9) months following the Entry Date of this Consent
Decree, City will prepare and submit the documents necessary to obtain all legally
required approvals for implementing the Crossing Removal Plan, including: (i) a
1 For purposes of this Consent Decree, “Crossing material” includes, but is not
limited to, all concrete, riprap, asphalt, corrugated metal culverts, and unauthorized
fill material existing at the site as of the Consent Decree’s Effective Date.
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Clean Water Act 404 Permit, nation-wide permit, or equivalent written approval
from the USACE; (ii) a Clean Water Act 401 Certification or equivalent statewide
general water quality certification from the Regional Board; (iii) a California
Department of Fish and Wildlife streambed alteration agreement; (iv) applicable
CEQA and/or NEPA compliance; (v) written approval from The Reserve at Rancho
Mission Viejo; and (vi) all other Federal, State, and local approvals or
authorizations required to implement the Crossing Removal Plan.
21. City will diligently work to begin and complete the Crossing Removal
Plan during the first dry season following City’s receipt of all required permits,
certifications, and approvals for the Crossing Removal Plan, but in any event, will
complete the Crossing Removal Plan no later than eighteen (18) months following
receipt of the required permits, certifications, and approvals.
D. LEGAL COMPLIANCE
22. For all work contemplated under this Consent Decree, City will ensure
that the Riding Park operator obtains all legally required approvals, authorizations,
and permits, including NPDES permits, prior to commencing construction and/or
any other operations at the Riding Park.
IV. SITE INSPECTIONS
23. Site Inspections. During the Term of this Consent Decree,
Defendants shall permit representatives of Coastkeeper to perform inspections of
the Riding Park during operating hours (“Site Inspection”) as follows: two (2) site
inspections each reporting year during the life of this Consent Decree (July to
June). In the event of a dispute regarding Defendants’ compliance with this
Consent Decree and provided a site inspection would be relevant to resolving the
Parties’ dispute, Coastkeeper may request an additional site inspection and the
Parties agree to meet and confer regarding the request. Defendants shall not
unreasonably deny Coastkeeper’s request for an additional site inspection.
Coastkeeper shall provide Defendants’ designated representatives at least 48 hours’
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notice in advance of any site inspections. For any site inspection planned to occur
in wet weather, where a change in forecasted precipitation would frustrate wet
weather observations and/or samples, Coastkeeper shall be entitled to reschedule
the site inspection. Coastkeeper agrees to give Defendants’ representatives at least
fifteen (15) hours’ notice of its intent to reschedule a requested wet weather site
inspection. During site inspections, Coastkeeper shall be allowed to inspect any
SWPPPs, M&RPs, and logs, sample stormwater discharges, and take photos and/or
videos. A representative from City and Blenheim, or the current operator of the
Riding Park, shall be present during a site inspection. Nothing in this Paragraph
shall be construed to limit Coastkeeper’s right to otherwise access the Riding Park
during times when it is normally open to the public.
V. COMMUNICATIONS
24. Document and Data Provision. During the term of this Consent
Decree, Defendants shall provide Coastkeeper with a copy of all written
correspondence, documents, reports, and sampling results related to water quality
compliance at the Riding Park and Crossing submitted to the Regional Board, the
State Board, USACE, and/or any Federal, State, local agency, county, or relevant
easement holder. Such documents and reports shall be transmitted to Coastkeeper
concurrently as they are sent to the aforementioned entities. Any correspondence
related to water quality received by Defendants from any of the aforementioned
entities shall be provided to Coastkeeper via electronic transmission within ten (10)
business days of receipt by either Defendant. For purposes of this Paragraph alone,
the term “correspondence” shall be interpreted to exclude electronic mail
communications, but include the electronic transmission of letters on Defendants’
or agencies’ letterhead.
25. SWPPP Review. Whenever Defendants are required to revise the
Riding Park’s SWPPP, Defendants must submit revised SWPPPs to Coastkeeper
for review and comment. Coastkeeper will have thirty (30) days from receipt of the
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document from the Defendants to provide comments to the Defendants, if any. If
Coastkeeper does not respond within thirty (30) days after receiving a document,
Coastkeeper will be deemed to have consented to the document. Within thirty (30)
days of receiving Coastkeeper’s comments, Defendant will either incorporate
Coastkeeper’s comments or provide justification in writing to Coastkeeper why any
comment is not incorporated. If the parties cannot come to an agreement, either
party may invoke dispute resolution pursuant to Paragraph 32 of this Consent
Decree. Any revised SWPPP incorporating Coastkeeper’s comments shall be
uploaded to SMARTs within thirty (30) days of the date Defendants incorporate
Coastkeeper’s comments. Nothing in this Paragraph shall be interpreted to interfere
with Defendants’ obligations under any NPDES Permits.
26. Milestone Submittals. City will send draft permit application
documents and milestone submittals related to the Riding Park’s NPDES Permits,
the Crossing Removal Plan, and the Restoration Plan ten (10) days in advance of
submittal to the applicable permitting agency. If Coastkeeper provides comments,
City and Coastkeeper shall make a good faith effort to address and/or resolve
Coastkeeper’s comments, and if reasonably feasible, attempt to make such changes
prior to submitting any permit application documents or milestone submittals to the
permitting agency. Coastkeeper, however, retains its right to participate in, or
comment during, the permit, certification, and approvals process.
VI. ENVIRONMENTAL PROJECT, LITIGATION FEES AND
COSTS
27. Environmental Project. In lieu of any penalties pursuant to the
violations alleged by Coastkeeper in the Action, City agrees to make a payment of
one million dollars ($1,000,000.00) to the California State Parks Foundation to fund
projects at Doheny State Beach and San Clemente State Beach to improve the
watershed. Doheny State Beach is located less than seven (7) miles downstream
from the Riding Park. San Clemente State Beach is located less than ten (10) miles
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from the Riding Park. The payment shall be made according to the following
schedule: (1) $500,000 on or before July 31, 2019; and (2) $500,000 on or before
July 31, 2020. The payments shall be payable to “California State Parks
Foundation” and submitted to:
California State Parks Foundation
33 New Montgomery Street, Suite 520
San Francisco, California 94105
Attn: Rachel Norton, Executive Director
City shall provide Coastkeeper with a copy of such payment at the time it is made.
28. Litigation Fees and Costs. To satisfy Coastkeeper’s claim for its
investigation fees and costs, expert/consultant fees and costs, reasonable attorneys’
fees, and other costs incurred as a result of investigating and filing the lawsuit, and
negotiating this Consent Decree, City will pay a total of $1.65 million Dollars ($
1,650,000.00). The payment will be made within twenty-one (21) days after the
Entry Date. Payment will be payable to: “Orange County Coastkeeper” and
delivered by certified mail, overnight delivery, or wire transfer to: Orange County
Coastkeeper, 3151 Airway Avenue, Suite F-110, Costa Mesa, CA 92626.
29. Compliance Monitoring and Oversight: City agrees to defray
Coastkeeper’s future monitoring of Defendants’ compliance with this Consent
Decree in the amount of Two Hundred Fifty Thousand Dollars ($250,000). The
payment shall be made within twenty-one (21) days after the Entry Date. The
payment shall be made via wire transfer or check, made payable to: “Orange
County Coastkeeper” and delivered by certified mail or overnight delivery, unless
payment via wire transfer, to: Orange County Coastkeeper, 3151 Airway Avenue,
Suite F-110, Costa Mesa, CA 92626.
//
//
//
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VII. DEADLINES, BEST EFFORTS AND REASONABLE DILIGENCE
30. Where this Consent Decree requires City and/or Blenheim to apply for
and obtain permits, certifications, or approvals, or complete projects, they will use
all best efforts and reasonable diligence to do so within the timeframes stated
herein. Should either Defendant be unable to meet such deadlines due to
circumstances beyond Defendants’ control, City and/or Blenheim shall notify
Coastkeeper of the delay in writing no less than thirty (30) days before the deadline.
Any notice pursuant to this Paragraph shall describe the circumstances causing the
delay and request Coastkeeper’s consent to extend the deadline, and Coastkeeper
shall not unreasonably withhold its consent to a reasonable extension under these
circumstances. Should Coastkeeper refuse to consent to an extension under this
Paragraph, the affected Defendant may invoke its right to dispute resolution
pursuant to Paragraph 32.
VIII. CONTINUING JURISDICTION; DISPUTE RESOLUTION
31. Continuing Jurisdiction. The Court will retain jurisdiction over this
matter for the life of the Consent Decree for the purposes of enforcing its terms and
conditions and adjudicating all disputes among the Settling Parties that may arise
under the provisions of the Consent Decree. The Court will have the authority to
enforce this Consent Decree with all available legal and equitable remedies.
32. Dispute Resolution. If a dispute under this Consent Decree arises or
if a Settling Party believes that a breach of this Consent Decree has occurred, the
Parties will follow the following procedure:
32.1. Meet and Confer. The Party will invoke the dispute resolution
procedures of this Paragraph by notifying the other Settling Party in writing of the
disputed matter(s). The Settling Parties will schedule a meet and confer in good
faith (either telephonically or in person) in an attempt to resolve the dispute
informally over a period of ten (10) days from the date of the notice. The Settling
Parties may elect to extend this time in an effort to resolve the dispute without court
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intervention. The Settling Parties will bear their own fees and costs associated with
efforts to informally resolve the dispute without court intervention.
32.2. Motion. If the Settling Parties cannot resolve a dispute by the
end of meet and confer and informal negotiations, the Party initiating the dispute
resolution provision may invoke formal dispute resolution by filing a motion before
the United States District Court for the Central District of California. The Settling
Parties agree to request an expedited hearing schedule on the motion.
32.3. Defendants agree not to challenge Coastkeeper’s standing in any
proceeding to enforce this Consent Decree under Paragraph 32.
32.4. Fees and Costs to Resolve Dispute. Litigation costs and fees
incurred in addressing and/or resolving any dispute, including an alleged breach of
this Consent Decree, will be awarded to the prevailing party in accordance with the
standard established by § 505 of the Clean Water Act, 33 U.S.C. §§ 1365 and 1319,
and case law interpreting that standard.
IX. MUTUAL RELEASE AND COVENANT NOT TO SUE
33. Coastkeeper’s Release. Upon the Effective Date of this Consent
Decree, Coastkeeper, on its own behalf and on behalf of its current and former
officers, directors, employees, and each of their successors and assigns, and its
agents, attorneys, consultants and other representatives, releases Defendants, and
each of their affiliates, current and former officers, directors, members, employees,
shareholders and each of their predecessors, successors and assigns, and each of
their agents, attorneys, consultants, and other representatives (collectively
“Defendants”) of and from, and waives, all claims which arise from or pertain to
this Action, including any and all claims for injunctive relief, penalties, fees
(including fees of attorneys, experts, and others), costs, expenses or any other sum
incurred or claimed, which were asserted in, or which could have been asserted in,
the Notice Letters, Action, Complaint, and/or First Amended Complaint up to the
Termination Date.
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34. Defendants’ Release. Upon the Effective Date of this Consent
Decree, Defendants, on their own behalf and on behalf of their current and former
officers, directors, employees, members, and each of their successors and assigns,
and their agents, attorneys, and other representatives, hereby release Coastkeeper
(and its current and former officers, directors, employees, members, parents,
subsidiaries, and affiliates, and each of their successors and assigns, and its agents,
attorneys, and other representatives) of and from, and waives all claims which arise
from or pertain to this action, including all claims for fees (including fees of
attorneys, experts, and others), costs, expenses or any other sum incurred or claims
for matters related to, or which could have been asserted in response to,
Coastkeeper’s Notice Letters, Complaint, or First Amended Complaint up to the
Termination Date.
35. The Settling Parties acknowledge that they are familiar with Section
1542 of the California Civil Code, which provides:
A general release does not extend to claims which the creditor does not know
or suspect to exist in his or her favor at the time of executing the release,
which if known by him or her must have materially affected his or her
settlement with the debtor.
Subject to Paragraph 36, the Settling Parties hereby waive and relinquish any rights
they may have, known or unknown, under California Civil Code Section 1542 with
respect to any other claims that they may have or which could have been asserted,
against each other arising from, or related to, the allegations and claims as set forth
in the Notice Letters, Complaint, and/or the First Amended Complaint, or for any
violations of law at the Property occurring before the Entry Date.
36. No Release or Waiver Between Defendants. Nothing in this Consent
Decree is intended to waive City’s and Blenheim’s right to assert claims against
each other, and, by entering into this Consent Decree, City does not release, and
expressly reserves, any and all claims, causes of action, and rights to sue against
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Blenheim, and Blenheim does not release, and expressly reserves, any and all
claims, causes of actions, and rights to sue against City. This Consent Decree is not
intended to create or modify any rights or duties between City and Blenheim, in
connection with this Consent Decree or otherwise, which subject is left to
agreements between those parties.
37. Other Equestrian Facilities in City. Coastkeeper does not presently
contemplate enforcement proceedings against other equestrian facilities in the City
but does not waive its right to initiate such proceedings in the future. In the event it
does contemplate enforcement proceedings against other equestrian facilities in the
City of San Juan Capistrano, Coastkeeper will provide City notice of any potential
citizen suit thirty (30) days before issuing a Notice of Intent to Sue letter to the
equestrian facility and government agencies. If City initiates a meeting with the
subject facility during this thirty (30) day period in an attempt to resolve the alleged
violations, Coastkeeper agrees to participate. Coastkeeper further agrees to provide
City a concurrent copy of any Notice of Intent to Sue notice provided to state and
federal agencies, at least sixty (60) days before initiating a lawsuit.
38. Nothing in this Consent Decree limits or otherwise affects any Party’s
right to address or take any position that it deems necessary or appropriate in any
formal or informal proceeding regarding issues unrelated to the Claims before the
State Water Board, Regional Board, U.S. EPA, or any other administrative body.
X. DEFINITIONS
39. The language in this Consent Decree will be construed according to its
plain and ordinary meaning, except as to those terms defined in the Clean Water
Act and its implementing regulations and guidance documents or specifically
defined in this Consent Decree.
XI. MISCELLANEOUS PROVISIONS
40. No Admission of Liability. Neither this Consent Decree, payment
pursuant to the Consent Decree, or any action undertaken in compliance with this
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Consent Decree constitutes or may be construed as a finding, adjudication,
admission, or acknowledgment of any fact, law, or liability, nor may it be construed
as an admission of violation of any law, rule, or regulation. Each Defendant
maintains and reserves all defenses they may have to any alleged violations that
may be raised in the future.
41. Execution in Counterparts. The Consent Decree may be executed in
any number of counterparts, all of which together shall constitute one original
document. Telecopy, email of a pdf signature, and/or facsimile copies of original
signatures shall be deemed to be originally executed counterparts of this Consent
Decree.
42. Authority to Sign. The undersigned representatives for Plaintiff and
Defendants each certify that he/she is fully authorized by the Settling Parties whom
he/she represents to enter into the terms and conditions of this Consent Decree.
43. Choice of Law. The laws of the United States and the State of
California govern this Consent Decree.
44. Integrated Consent Decree. This is an integrated Consent Decree.
This Consent Decree is intended to be a full and complete statement of the terms of
the agreement between the Settling Parties and expressly supersedes any and all
prior oral or written agreements, covenants, representations and warranties, express
or implied, oral or written, of the Settling Parties concerning the subject matter of
this Consent Decree.
45. Severability. In the event that any provision, paragraph, section, or
sentence of this Consent Decree is held by a court to be unenforceable, the validity
of the enforceable provisions will not be adversely affected.
46. Modification of the Agreement. This Consent Decree, and any
provisions herein, may not be changed, waived, discharged, or terminated unless by
a written instrument, signed by each of the Settling Parties and approved by the
Court. Any request to modify any provision(s) of the Consent Decree, including but
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not limited to any deadline(s) set out herein, must be made in writing at least
fourteen (14) days before an existing deadline(s) applicable to the provision(s)
proposed to be modified.
47. Assignment. Subject only to the express conditions contained in this
Consent Decree, all of the rights, duties and obligations contained in this Consent
Decree shall inure to the benefit of and be binding upon the Settling Parties, and
their successors and assigns. Defendants shall notify Coastkeeper within ten (10)
days of any assignment, in conformity with Paragraph 48, below.
48. Notices and Submissions. Unless specifically provided for in this
Consent Decree, all notices or documents required or provided for by this Consent
Decree shall be, to the extent feasible, sent via electronic mail transmission to the e-
mail addresses listed below. If electronic mail transmission is not feasible, then via
U.S. Mail with return receipt or by hand delivery to the following addresses:
Colin Kelly: colin@coastkeeper.org Sarah Spinuzzi: sarah@coastkeeper.org Orange County Coastkeeper 3151 Airway Avenue Suite F-110 Costa Mesa, CA 92626
Unless requested otherwise by Defendants, any notices or documents required or
provided for by this Consent Decree or related thereto that are to be provided to
Defendants pursuant to this Consent Decree shall be provided by electronic mail
transmission, certified U.S. Mail with return receipt, by overnight courier, FedEx,
or by hand delivery to the addresses below:
Wayne Call: wcall@calljensen.com
CALL & JENSEN 610 Newport Center Drive Suite 700 Newport Beach, CA 92660
Melissa Brandes: melissbrandess@aol.com
Blenheim Facility Management, LLC
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61147.20013\31432304.2 - 21 - [PROPOSED] CONSENT DECREE
Benjamin Siegel, bsiegel@sanjuancapistrano.org. City Manager, City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675
48.1. Notifications of communications will be deemed submitted on
the first business day following the date that they are postmarked and sent by first-
class mail or deposited with an overnight mail/delivery service. Notifications of
communications for electronic mail will be deemed submitted on the date they are
sent. Any change of address shall be communicated in the manner described above
for giving notices.
49. Deadlines Falling on Non-Business Days. Any deadlines related to
this Consent Decree which fall on the weekend or on a federal holiday shall be
extended to the following business day.
50. Force Majeure: Force Majeure includes any act of God, war, fire,
earthquake, windstorm, flood or natural catastrophe; civil disturbance, vandalism,
sabotage or terrorism; restraint by court order or public authority or agency; or
action or non-action by, or inability to obtain the necessary authorizations or
approvals from any governmental agency. Force Majeure shall not include normal
inclement weather, economic hardship, or inability to pay. Any party seeking to
rely upon this Paragraph to excuse or postpone performance, shall have the burden
of establishing that it could not reasonably have been expected to avoid the Force
Majeure event and which by exercise of due diligence has been unable to overcome
the failure of performance. The Settling Parties shall exercise due diligence to
resolve and remove any Force Majeure event. Delay in compliance with a specific
obligation under this Consent Decree due to Force Majeure as defined in this
Paragraph shall not excuse or delay compliance with any or all other obligations
required under this Consent Decree.
//
//
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61147.20013\31432304.2 - 22 - [PROPOSED] CONSENT DECREE
The Settling Parties hereto enter into this Consent Decree and submit it to the
Court for its approval and entry as a final judgment.
IN WITNESS WHEREOF, the undersigned have executed this Consent
Decree as of the date first set forth below.
SIGNATURES ON FOLLOWING PAGE
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SI(lrNATURE PAGE TO CONSENT DECREE, CASE N0 8: 17-CV-00956
APPROVEDASTOCONTENT
Dated:2018
Benjamin Siegel
Title: City Manager
CITY OF SAN JUAN CAPISTRANO
Dated:2018
Name:
Title ;
BLENlIEIM FACILITmS
MANAGEMENT, LLC
Dated 2018 a
$@.:J ,JFame: %MHQfO
Title
ORANGECOUNTYCOASTKEEPER
APPROVED AS TO FORM
-'''': sq+««.,..b.,. "7
,2018
Dated:,2018
lena'l'akaka
Attorney for Defendant
City of San Juan Capistrano
6] 147.20013B 1432304.2 23 pROPOSED] CONSEN'I ' I)ECREE
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61147.20013\31432304.2 -24-[PROPOSED] CONSENT DECREE
Dated: , 2018 By: Wayne CallAttorney for DefendantBlenheim Facility Management LLC.
Wayneeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCallAAttttoorrnneeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy ffoorr Defendant
September 7
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