The opinion
1 || Sarah Spinuzzi (SBN #305658) ORANGE
COUNTY COASTKEEPER
2 |/3151 Airway Avenue, Suite F-110
3 Costa Mesa, CA 92626
Tel: 714.850.1965
4 || Email:sarah@coastkeeper.org
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Attorney for Plaintiff
6 || ORANGE COUNTY COASTKEEPER
7
S. Wayne Rosenbaum (SBN #182456)
8 || ENVIRONMENTAL LAW GROUP LLP
g Broadway, Suite 1900
San Diego, CA 92101
10 Tel: 619.231.5858
1] || Email:swr@envirolawyer.com
12 || Attorney for Defendants
13 || RANCHO SIERRA VISTA,
4 RANCHO HHO LAND CORPORATION
15
UNITED STATES DISTRICT COURT
16 CENTRAL DISTRICT OF CALIFORNIA
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ORANGE COUNTY COASTKEEPER, a Civil Case No. :
19 || California non-profit corporation, 8:20-cv-01993JVS(KESx)
20
Plaintiff, CONSENT DECREE
21 VS.
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RANCHO SIERRA VISTA, a California
23 Corporation; RANCHO HHO LAND (Federal Water Pollution Control Act,
24 |} CORPORATION, a California Corporation| 33 U.S.C. §§ 1251 et seq.)
25 Defendants,
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1 CONSENT DECREE
2 The following Consent Decree is entered into by and between Orange County
3 Coastkeeper (“Coastkeeper” or “Plaintiff”) and Rancho Sierra Vista, a California
4 Corporation (“RSV”) and Rancho HHO Land Corporation, a California Corporation
5 (“Financial Guarantor” and, together with RSV, “Defendants”). The entities entering this
6 Consent Decree are each an individual “Settling Party” and collectively the “Settling
7 Parties.”
8 WHEREAS, Coastkeeper is a 501(c)(3) non-profit public benefit corporation
9 organized under the laws of the State of California, with its main office in Costa Mesa,
10 California;
11 WHEREAS, Coastkeeper’s mission is to protect the region’s water resources so
12 they are swimmable, drinkable, and fishable for present and future generations;
13 WHEREAS, RSV operates an equestrian boarding facility (“Facility”) on the
14 property located at 31441 Avenida De La Vista in the City of San Juan Capistrano (the
15 “City”), State of California (the “Property”) where it stables approximately 335 horses
16 year-round;
17 WHEREAS, Financial Guarantor is the owner of the Property where RSV
18 operates its equestrian stabling business;
19 WHEREAS, the City owns and operates a municipal storm drain that transects the
20 Property;
21 WHEREAS, the Property is serviced by two privately owned historic storm water
22 conveyances for which the parties have been unable to identify a functioning surface
23 outfall;
24 WHEREAS, on or about February 10, 2020, Coastkeeper sent a letter to
25 Defendants of Coastkeeper’s intention to file suit after the expiration of sixty (60) days
26 for certain alleged violations of the federal Water Pollution Control Act pursuant to 40
27 C.F.R. § 135.2 (“Notice Letter”) attached hereto as Exhibit A.
1 WHEREAS, Coastkeeper alleges that RSV’s operations at the Facility result in
2 discharges of pollutants to Trabuco Creek, the main tributary to San Juan Creek, which
3 discharges to the San Juan Creek Mouth and the Pacific Ocean (“Receiving Waters”), and
4 further contends those discharges are regulated by the Clean Water Act, Sections 301(a),
5 402, 33 U.S.C. §§ 1311(a), 1342;
6 WHEREAS, Financial Guarantor has agreed to act as the financial guarantor for
7 monetary obligations of RSV set forth in this Consent Decree;
8 WHEREAS, on April 10, 2020, Coastkeeper and Defendants executed a 30-day
9 Tolling Agreement to facilitate dry and wet weather inspections of the facility and
10 discuss engineering solutions to evaluate and resolve Coastkeeper’s Clean Water Act
11 allegations;
12 WHEREAS, On April 10, 2020, in a letter attached hereto as Exhibit B, the San
13 Diego Regional Water Quality Control Board (RWQCB) identified RSV as a Medium
14 Confined Animal Feeding Operation (CAFO) and directed RSV to file a Notice of Intent
15 (NOI) through the State Water Board’s Stormwater Multiple Application & Tracking
16 System (SMARTS) to obtain coverage under the Statewide General Permit for Storm
17 Water Discharges Associated with Industrial Activities, Order No. 2014-0057-DWQ as
18 amended (“Industrial General Permit” or “IGP”) and develop and implement a site-
19 specific Nutrient Management Plan (NMP) pursuant to subdivision 40 C.F.R. §
20 122.42(e), or demonstrate a “No Discharge” condition, and apply for a Notice of Non-
21 Applicability (NONA) under XX.C of the IGP;
22 WHEREAS, on May 8, 2020, Coastkeeper and Defendants executed a 30-day
23 extension of their Tolling Agreement;
24 WHEREAS, on June 16, 2020, Coastkeeper and Defendants executed a second
25 30-day extension of their Tolling Agreement;
26 WHEREAS, on October 16, 2020, Plaintiff filed a complaint against Defendants
27 in the United States District Court, Central District of California (Civil Case No. : 8:20-
1 cv-01993), alleging violations of § 301(a) and § 402 of the Clean Water Act, 33 U.S.C. §
2 1311(a), and violations of the IGP at the Facility (the “Complaint”);
3 WHEREAS, the Settling Parties have agreed that it is in their mutual interest, and
4 therefore choose, to resolve Coastkeeper’s allegations in the Notice Letter through
5 settlement and entry of this Consent Decree to avoid the cost and uncertainties of
6 litigation;
7 WHEREAS, Plaintiff alleges RSV to be in violation of the substantive and
8 procedural requirements of the IGP and the Clean Water Act with respect to the Facility;
9 WHEREAS, RSV denies all allegations in the Notice Letter and Complaint
10 relating to the Facility;
11 WHEREAS, the Settling Parties have agreed that it is in their mutual interest to
12 enter into a Consent Decree setting forth terms and conditions appropriate to resolving
13 the allegations set forth in the Complaint without further proceedings;
14 WHEREAS, all actions taken by RSV pursuant to this Consent Decree shall be
15 made in compliance with all applicable federal and state laws and local rules and
16 regulations.
17 NOW THEREFORE IT IS HEREBY STIPULATED BETWEEN THE
18 SETTLING PARTIES AND ORDERED AND DECREED BY THE COURT AS
19 FOLLOWS:
20 1. The Court has jurisdiction over the subject matter of this action pursuant to
21 Section 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a);
22 2. Venue is appropriate in the Central District of California pursuant to Section
23 505(c)(1) of the Clean Water Act, 33 U.S.C. § 1365(c)(1), because the Facility is located
24 within the Central District of California;
25 3. The Complaint states claims upon which relief may be granted pursuant to
26 Section 505(a)(1) of the Clean Water Act, 33 U.S.C. § 1365(a)(1);
27 4. Plaintiff has standing to bring this action;
1 5. The Court shall retain jurisdiction over this matter for purposes of enforcing
2 the terms of this Consent Decree for the life of the Consent Decree, or as long thereafter
3 as is necessary for the Court to resolve any motion to enforce this Consent Decree.
4 I. OBJECTIVES
5 6. It is the express purpose of the Settling Parties entering into this Consent
6 Decree to further the objectives set forth in the Clean Water Act, 33 U.S.C. §§ 1251, et
7 seq., and to resolve those issues alleged by Plaintiff in their Complaint. In light of these
8 objectives and as set forth fully below, RSV agrees to comply with all applicable
9 provisions of this Consent Decree, the IGP, a RWQCB approved Nutrient Management
10 Plan (NMP), and all applicable provisions of the Clean Water Act. Specifically, RSV
11 agrees to comply with Discharge Prohibitions, Effluent Limitations, and Receiving Water
12 Limitations set forth in the IGP in the industrial and production areas.
13 II. AGENCY REVIEW AND TERM OF CONSENT DECREE
14 7. Plaintiff shall submit this Consent Decree to the United States Department of
15 Justice and the EPA (collectively, the “Federal Agencies”) within three (3) business days
16 of the final signature of the Settling Parties for agency review consistent with 40 C.F.R. §
17 135.5. The agency review period expires forty-five (45) days after receipt by both
18 agencies, as evidenced by written acknowledgement of receipt by the agencies or the
19 certified return receipts, copies of which shall be provided to RSV. In the event that the
20 Federal Agencies object to entry of this Consent Decree, the Settling Parties agree to
21 meet and confer to attempt to resolve the issue(s) raised by the Federal Agencies within a
22 reasonable amount of time.
23 8. The term “Effective Date” as used in this Consent Decree shall mean the day
24 the Court enters this Consent Decree. If, by the end of the 45-day review period
25 referenced in paragraph 7, supra, the Federal Agencies offer no objection, the Settling
26 Parties agree to request immediate entry of this Consent Decree by the Court and if, after
27 fourteen (14) days, the Court has not entered the Consent Decree, the Settling Parties
1 agree that any party to this agreement may request a hearing before the Court to seek
2 entry of the Consent Decree.
3 9. This Consent Decree shall terminate three (3) years after the Effective Date
4 (“Termination Date”), unless tolled by delays as set forth in Paragraph 51 or there is a
5 prior ongoing, unresolved dispute regarding RSV’s compliance with this Consent Decree.
6 III. POLLUTION CONTROL REQUIREMENTS
7 A. Storm Water Pollution Reduction Measures
8 10. Should RSV submit a valid Notice of Non-Applicability (“NONA”) as
9 further described in Section XX.C of the IGP the provisions of Section III of this Consent
10 Decree shall not apply.
11 11. The storm water pollution control measures required by this Consent Decree
12 shall be designed and operated to comply fully with the requirements of the IGP and
13 RSV’s NMP approved by the RWQCB.
14 12. RSV agrees to continue to maintain seals on any inlets to the City storm
15 drain on the Property in a manner that prevents stormwater and non-stormwater
16 discharges from entering the City storm drain in a manner reasonably acceptable to RSV,
17 Plaintiff, and the City.
18 13. Structural BMPs
19 13.1. RSV agrees to implement structural BMPs that will retain or infiltrate storm
20 water from the ten year/24-hour storm event from the Production Area, any commingled
21 non-Production Area water, and process wastewater as depicted in Exhibit C.
22 13.2. By April 1, 2021, RSV will submit the following storm water retention
23 reports:
24 13.2.1. Technical Report 1: Evaluates the Facility’s capability to
25 capture and retain storm water and all process wastewater from the
26 Production Area and any commingled non-Production Area water to
27 prevent storm water discharges from the Facility. The volumes used to
1 evaluate the capture and retention capabilities will be based on the ten
2 year/twenty-four hour rain event for the property as determined by
3 NOAA. This report will be certified by a California Professional
4 Engineer (“P.E.”).
5 13.2.2. Based on the results of Technical Report 1, a storm water
6 retention BMP plan shall be developed to either maintain existing
7 capacity or add any necessary additional BMPs required to meet the 10
8 year/twenty-four hour rain event design capacity. The BMP plan shall
9 be certified by a California Professional Engineer (“P.E.”).
10 13.3. The storm water retention BMP plan must also include either a plan as
11 described in Paragraph 13.4 to monitor infiltrated storm water and groundwater flow
12 direction to determine whether infiltrated storm water is the functional equivalent of a
13 point source discharge of pollutants to Trabuco Creek1, or in the alternative, a written
14 report(s) from the appropriate qualified professional(s) that it is not reasonably likely that
15 the functional equivalent of a point source connection between the property and Trabuco
16 Creek exists in which case the provisions of 13.4 shall not apply. Should Coastkeeper
17 disagree with the results of the studies, Coastkeeper shall have the burden to provide
18 substantial evidence that contravenes the conclusions of the reports.
19 13.3.1. Technical Report 2: Evaluates whether Trabuco Creek is a
20 “gaining” or “losing” stream at the Facility and adjacent property. The
21 results of this study will determine whether the hydrological
22 configuration between Trabuco Creek and the Facility is capable of
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24 1 The term “functional equivalent” shall have the same meaning as it does in County of
25 Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020). The seven factors outlined in
26 County of Maui shall be used to determine whether a “functional equivalent” is likely to
27 exist in this case.
1 producing the “functional equivalent” of a discharge to Trabuco Creek
2 as that term is defined in County of Maui v. Hawaii Wildlife Fund.
3 Said report shall be prepared by an appropriate qualified professional.
4 If the professional performing Technical Report 2 reasonably
5 concludes that Trabuco Creek is a “losing stream” adjacent to the
6 Facility throughout the year, the results will be deemed conclusive and
7 no further evaluations will be required. If the professional conducting
8 Technical Report 2 is unable to reasonably conclude that Trabuco
9 Creek is a losing stream, RSV will commission the preparation of
10 Technical Report 3. The report shall be prepared by a hydrogeologist.
11 13.3.2. Technical Report 3: Provides site-specific estimates of
12 groundwater flow, discharge rates and pollutant concentrations to
13 Trabuco Creek based on the Property’s capability to infiltrate surface
14 water from Production Areas. The analysis will be based upon
15 technical data related to the Facility’s soil profile and geotechnical
16 aspects. This report will be certified by a hydrogeologist in
17 consideration of the following field data:
18 Soil samples will be obtained for laboratory analysis and will be
19 used to provide input parameters for the modeling. These
20 parameters include soil moisture (initial water content), saturated
21 and unsaturated hydraulic conductivity, organic carbon content,
22 porosity, bulk density, soil classification, and Atterberg limits.
23 Depth to groundwater will be measured from at least two borings.
24 13.4. Any groundwater monitoring plan must include, at a minimum:
25 13.4.1. Installation of no fewer than three monitoring wells to
26 accomplish the objective set forth in the above Paragraph 13.3. The parties expressly
27 acknowledge that some of the monitoring wells may need to be ideally located on
1 adjacent properties because of the potential for infiltrated storm water to be determined to
2 be a point source discharge as that term is defined in Maui. RSV shall use reasonably best
3 commercial efforts to obtain proper authorizations and permission from adjacent property
4 owners for the installation and use of monitoring wells.
5 13.4.2. RSV shall survey the top of each well casing for the purposes
6 of establishing elevation of groundwater during groundwater monitoring events.
7 13.4.3. Immediately prior to collecting groundwater samples after a
8 rain event, RSV shall measure and record the elevation of the top casing of each well to
9 calculate the elevation of groundwater. This information will be used to establish
10 groundwater flow direction.
11 13.4.4. RSV shall collect groundwater samples at the Facility 24-48
12 hours after four (4) Qualifying Storm Events (“QSEs”)2.
13 13.4.5. RSV shall analyze groundwater samples for NO3, phosphorous,
14 TDS and conductivity consistent with groundwater basin plan objectives. In addition,
15 RSV shall analyze E. Coli from Table 1.
16 13.4.6. Should RSV’s groundwater sampling demonstrate that the
17 combined annual averages for Nitrate (NO3), Phosphorous, TDS and Conductivity for the
18 two downstream groundwater wells minus the annual average for Nitrate (NO3),
19 Phosphorous, TDS and Conductivity for the upstream well are below those set forth in
20 the Basin Plan Water Quality Objectives, RSV will discontinue groundwater sampling for
21 these constituents.
22 13.4.7. Should RSV’s groundwater sampling demonstrate average
23 annual concentrations for E. Coli from the downstream wells are less than or equal to the
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25 2 The term QSE shall mean A precipitation event that: a. Produces a discharge for at least
26 one drainage area; and b. Is preceded by 48 hours with no discharge from any drainage
27 area.
1 average annual concentrations for the upstream groundwater monitoring well, RSV will
2 discontinue groundwater sampling for this constituent.
3 13.4.8. RSV shall not be required to post groundwater sampling data to
4 SMARTS
5 13.4.9. If Coastkeeper establishes that there is a direct discharge (or a
6 functional equivalent of a direct discharge) of infiltrated storm water that constitutes the
7 functional equivalent of a point source discharge as that term is defined in Maui from the
8 Property into Trabuco Creek through professionally prepared reports reasonably similar
9 to those described in Paragraph 13.3 above, then Section C and D (Contaminant
10 Reduction Strategy) of this Consent Decree shall also apply to infiltrated storm water. In
11 any dispute of the interpretation of said reports, Coastkeeper shall have the burden of
12 proof.
13 13.5. RSV agrees to implement the storm water retention BMP plan no later than
14 October 1, 2021.
15 B. SWPPP Implementation
16 14. Within fifteen (15) business days of the Effective Date, RSV shall file a
17 Notice of Intent (NOI), or a NONA to comply with the IGP.
18 15. Before or concurrently with the filing of the NOI or NONA, RSV shall
19 submit a Nutrient Management Plan (NMP) to the RWQCB.
20 C. Numeric Limits for Areas Subject to the IGP
21 16. Storm water discharged from RSV associated with industrial and CAFO
22 activities shall not contain pollutants above the levels set forth in Table 1, or a
23 Contaminant Reduction Strategy (CRS) shall be prepared pursuant to Paragraph 16.1.
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1 || Table 1: Numeric Limits for Discharges from Areas Subject to the IGP
2 TestMethod _| Source |
126 cfu/100 mL | SM 9221 FCE
3 Total Suspended Solids} 100 mg/L SM-2540-D
4 SM 4500-NO3-E
5 SM 4500-NH3 B+C or E
Oil and Grease (O&G EPA 1664A
[| Ph | 6.0 ~9.0 See IGP § XLC.2
7 Total Phosphorous SM 4500 B+E
SM 5210B
Contaminant Reduction Strategy (CRS) Requirements
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16.1. In the event a CRS is required this CRS will identify BMPs required to
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capture and retain the ten year/24 hour storm event to prevent discharges of storm water
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to Trabuco Creek, or, in the alternative, provide a plan to achieve Table | limits at the
3 point storm water discharges from RSV’s property line.
4 D. Sampling and Analysis.
1s 17. RSV will maintain a recording rain gauge capable of recording rainfall to 0.1
6 inches. RSV shall maintain the recording rain gauge in accordance with the
7 manufacturers’ recommendations, maintain records of all maintenance and rain data, and
13 provide such rain gauge data to Plaintiff with RSV’s Monitoring Plan, as described
19 below.
50 18. RSV will develop a plan (the “Monitoring Plan”) for monitoring all storm
5 water and non-storm water discharges from industrial and production areas resulting fro
QSEs” pursuant to the requirements of this Consent Decree and the IGP.
33 19. During the life of this Consent Decree, RSV shall collect samples of storm
water discharges from industrial and production area QSEs in conformity with its
35 Monitoring Plan included in its Stormwater Pollution Prevention Plan (“SWPPP”) and
upload the data to the California Storm Water Multiple Application and Report Tracking
System (“SMARTS”).
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28 10
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1 20. Should RSV demonstrate full compliance with all Table 1 discharge
2 limitations for four (4) consecutive QSEs, RSV may reduce sampling in compliance with
3 the IGP, except under no circumstances shall RSV be permitted to collect samples from
4 less than four (4) QSEs from areas subject to the IGP during any reporting year (July 1 to
5 June 31), however RSV may cease sampling for any analyte identified in Table 1
6 following four (4) consecutive reported sampling results where the pollutant is not
7 detected.
8 21. RSV shall comply with the analytical methods as required by this Consent
9 Decree and as more fully described in the Monitoring Plan as well as the requirements set
10 forth in 40 CFR part 136. Where there is a conflict between the Consent Decree and 40
11 CFR part 136, the provisions of 40 CFR part 136 shall apply.
12 22. RSV shall post the complete laboratory results of all sampling required by
13 this Consent Decree at outfalls servicing Production Areas as identified in the Monitoring
14 Plan on SMARTS and notify Plaintiff of the posting.
15 E. Visual Observations
16 23. During the life of this Consent Decree, RSV shall conduct and document
17 visual observations pursuant to the IGP and as more fully described in the SWPPP.
18 F. Monitoring and Reporting Program Revisions
19 24. RSV shall notify Plaintiff when Annual Reports are uploaded to SMARTS.
20 25. RSV shall revise the Monitoring Plan if there are any changes in operations,
21 including, but not limited to, changes to storm water discharge point(s) or revisions
22 and/or additions to the BMPs implemented pursuant to any CRS and upload the revisions
23 to SMARTS.
24 26. RSV shall notify Plaintiff when revised Monitoring Plans are uploaded to
25 SMARTS. Plaintiff shall provide comments, if any, to RSV within thirty (30) days of
26 receipt of notice that the revised Monitoring Plan has been uploaded. Failure to receive
27 comments within thirty (30) days shall be deemed conclusive evidence of approval of the
1 Monitoring Plan by Plaintiff. RSV shall incorporate Plaintiff’s comments into the
2 Monitoring Plan or shall justify in writing why any comment is not incorporated within
3 thirty (30) days of receiving comments.
4 27. This section does not prevent RSV from submitting a Monitoring Plan
5 amendment or revision to SMARTS in any way, nor does it impair RSV’s ability to
6 modify the Monitoring Plan unilaterally.
7 28. Any disputes as to the adequacy of the Monitoring Plan or revisions thereto
8 shall be resolved pursuant to the dispute resolution provisions of this Consent Decree, set
9 out in Section VI below.
10 G. SWPPP Revisions
11 29. Within thirty (30) days of termination of the public review period for its
12 NMP, RSV shall amend its SWPPP to incorporate its NMP by reference.
13 30. RSV shall revise the SWPPP if there are any changes in operations,
14 including, but not limited to, changes to storm water discharge point(s) or revisions
15 and/or additions to the BMPs implemented pursuant to any CRS and upload the revisions
16 to SMARTS.
17 31. RSV shall notify Plaintiff when SWPPP revisions are uploaded to
18 SMARTS.
19 32. Plaintiff shall provide comments, if any, to RSV within thirty (30) days of
20 receipt of notice that the SWPPP has been uploaded. Failure to receive comments within
21 thirty (30) days shall be deemed conclusive evidence of approval of the SWPPP by
22 Plaintiff. RSV shall incorporate Plaintiff’ comments into the SWPPP or shall justify in
23 writing why any comment is not incorporated within thirty (30) days of receiving
24 comments.
25 33. This section does not prevent RSV from submitting a SWPPP amendment or
26 revision to SMARTS in any way, nor does it impair RSV’s ability to modify the SWPPP
27 unilaterally.
1 34. Any disputes as to the adequacy of the SWPPP or revisions thereto shall be
2 resolved pursuant to the dispute resolution provisions of this Consent Decree, set out in
3 Section VI below.
4 H. Employee Training
5 35. Within thirty (30) days of the Effective Date of this Consent Decree, RSV
6 shall develop and implement a training program (the “Training Program”), in compliance
7 with the IGP and its SWPPP. At a minimum, the Training Program shall include the
8 following:
9 35.1. Language. RSV shall conduct the Training Program in at least one language
10 or languages in which all designated employees participating in the Training Program are
11 fluent.
12 35.2. Non-Storm Water Discharges. RSV shall train all designated employees on
13 the prohibition of NSWDs, so that employees know what constitutes a NSWD, and how
14 to detect and prevent non-storm water discharges to ensure compliance with this Consent
15 Decree and the IGP.
16 35.3. Best Management Practices (BMPs). RSV shall train all designated
17 employees on BMP implementation and maintenance to ensure that BMPs are
18 implemented effectively to prevent the exposure of pollutants to storm water, to prevent
19 the discharge of contaminated storm water, and to ensure the proper treatment of storm
20 water at properties under RSV’s jurisdiction that are regulated under the IGP.
21 35.4. Storm Water Sampling. RSV shall designate an adequate number of
22 employees or contractors necessary to collect storm water samples from each outfall
23 identified in the Monitoring Plan. The training shall include the proper sampling
24 protocols, including chain of custody requirements, to ensure storm water samples are
25 properly collected, stored, and submitted to a certified laboratory.
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1 35.5. Visual Observation Training. RSV shall provide training to all designated
2 employees regarding visual observations pursuant to this Consent Decree and the
3 SWPPP.
4 36. Training shall be provided by a qualified individual who is familiar with the
5 requirements of this Consent Decree and the SWPPP. The training shall be repeated as
6 necessary to ensure that all employees assigned storm water responsibilities are familiar
7 with the requirements of this Consent Decree and the SWPPP. All new designated staff
8 shall receive this training before assuming responsibilities for implementing the RSV’s
9 SWPPP or Monitoring Plan.
10 37. RSV shall maintain training records to document compliance with this
11 Section and shall provide Plaintiff with a copy of these records annually if requested.
12 These training records must indicate the date and nature of the training but are not
13 required to disclose any employee information.
14 I. Monitoring and Reporting
15 38. Site Inspections
16 38.1. During the term of this Consent Decree, Defendants shall permit
17 representatives of Coastkeeper to perform two (2) site inspections during normal
18 operating hours during each reporting year as follows: two (2) site inspections each
19 reporting year during the life of this Consent Decree (July to June).
20 38.2. Coastkeeper shall provide Defendants’ designated representatives at least 48
21 hours’ notice in advance of any site inspections. For any site inspection planned to occur
22 in wet weather, where a change in forecasted precipitation would frustrate wet weather
23 observations and/or samples, Coastkeeper shall be entitled to reschedule the site
24 inspection. Coastkeeper agrees to give Defendants’ representatives at least fifteen (15)
25 hours’ notice of its intent to reschedule a requested wet weather site inspection.
26 38.3. Provided, that in the event of a dispute regarding Defendants’ compliance
27 with this Consent Decree and provided a site inspection would be relevant to resolving
1 the Parties’ dispute, Coastkeeper may request an additional site inspection and the Parties
2 agree to meet and confer regarding the request. Defendants shall not unreasonably deny
3 Coastkeeper’s request for an additional site inspection.
4 38.4. Coastkeeper representatives shall execute the liability waiver attached hereto
5 as Exhibit D prior to entering the property.
6 38.5. Coastkeeper acknowledges it is their obligation to obtain prior approval
7 from other property owners or easement holders including but not limited to
8 adjacent properties or the City of San Juan Capistrano should they wish to
9 inspect areas not under RSV’s control. Any expenses related to obtaining the
10 necessary authorizations necessary to inspect these other areas shall be the
11 sole responsibility of Coastkeeper.
12 39. Document Provision
13 39.1. During the life of this Consent Decree, RSV shall notify Plaintiff of all
14 documents related to compliance with the IGP and NMP at the Facility that are not
15 posted to SMARTS, which are submitted to the Regional Board, the State Board, and/or
16 any state or local agency, county, or municipality. RSV shall email such reports and
17 documents to Plaintiff within ten (10) days of the date they are sent to the agencies,
18 counties, and/or municipalities.
19 39.2. RSV shall email any correspondence related to RSV’s compliance with the
20 IGP or NMP received by RSV from any regulatory agency, state or local agency, county,
21 or municipality which are not posted to SMARTS within ten (10) days of RSV’s receipt
22 of correspondence. For those documents, which are posted to SMARTS, RSV shall notify
23 Plaintiff of such posting within ten (10) days of the posting.
24 39.3. RSV shall not be required to disclose any information or documents that
25 constitute a trade secret or are subject to the Attorney Client Privilege or the Attorney
26 Work Product doctrine.
27
1 IV. ENVIRONMENTAL PROJECT, ATTORNEYS’ FEES AND COSTS, AND
2 STIPULATED PAYMENTS
3 A. Compliance, Monitoring, and Oversight
4 40. RSV agrees to defray Coastkeeper’s future monitoring of RSV’s compliance
5 with this Consent Decree in an amount of Fifteen Thousand Dollars ($15,000) within
6 thirty (30) days of the Effective Date of the Consent Decree. If RSV does not receive a
7 NONA from the Regional Board by one year from the Effective date, an additional
8 $15,000 monitoring payment shall be due to Coastkeeper thirty (30) days from the one-
9 year anniversary of the Effective Date. All payments shall be made via wire transfer or
10 check payable to: “Orange County Coastkeeper” and delivered by certified mail or
11 overnight delivery, unless payment via wire transfer, to: Orange County Coastkeeper,
12 Attn: Sarah Spinuzzi, 3151 Airway Avenue, Suite F-110, Costa Mesa, CA
13 B. Stipulated Penalties
14 41. RSV shall make stipulated payments of Five Hundred Dollars ($500.00) for
15 each failure to comply with each deadline described in this Consent Decree after five (5)
16 days’ notice by Coastkeeper of such a failure to comply without cure. Payments shall be
17 made to Mission Resource Conservation District. Defendant agrees to make the stipulated
18 payment within thirty (30) days of a missed deadline after five (5) days’ notice by
19 Coastkeeper. Defendant shall provide Coastkeeper with a copy of each such payment at
20 the time it is made. Payments shall be addressed to Mission Resource Conservation
21 District, Attn: Darcy G. Cook, 1588 South Mission Road, Suite 100, Fallbrook,
22 California 92028.
23 C. Environmental Project
24 42. To remediate the alleged environmental harms alleged in the Complaint,
25 RSV agrees to make an initial payment of Ten Thousand Dollars ($10,000) to Mission
26 Resource Conservation District to benefit water quality in the Mission Viejo Hydrologic
27 Area 601.20 thirty (30) days from the Effective Date. RSV shall make an additional
1 payment of Twenty Thousand Dollars ($20,000) one year from the Effective Date.
2 Payments shall be addressed to Mission Resource Conservation District, Attn: Darcy G.
3 Cook, 1588 South Mission Road, Suite 100, Fallbrook, California 92028.
4 D. Reimbursement of Attorneys’ Fees and Costs
5 43. RSV shall pay a total of Eighty Thousand Dollars ($80,000.00) to
6 Coastkeeper for its investigation fees and costs, expert/consultant fees and costs, and
7 reasonable attorneys’ fees incurred by investigating and preparing the lawsuit and
8 negotiating this Consent Decree. Payment shall be made to Orange County Coastkeeper
9 and delivered to Orange County Coastkeeper, Attn: Sarah Spinuzzi, 3151 Airway
10 Avenue, Suite F-110, Costa Mesa, CA 92626 within thirty (30) days of the Effective
11 Date.
12 V. DISPUTE RESOLUTION
13 A. Continuing Jurisdiction
14 44. This Court shall retain jurisdiction over this matter until the Termination
15 Date defined above for the purposes of implementing and enforcing the terms and
16 conditions of this Consent Decree and adjudicating all disputes among the Settling Parties
17 that may arise under the provisions of this Consent Decree, unless a Party files and is
18 granted a timely motion requesting an extension of time for the Court to retain
19 jurisdiction. The Court shall have the power to enforce this Consent Decree with all
20 available legal and equitable remedies, including contempt.
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1 B. Meet and Confer
2 45. A party to this Consent Decree shall invoke the dispute resolution
3 procedures of this Section by notifying all other Settling Parties in writing of the
4 matter(s) in dispute. The Settling Parties shall then meet and confer in good faith (either
5 telephonically or in person) in an attempt to resolve the dispute informally over a period
6 of ten (10) days from the date the notice is received. The Settling Parties may elect to
7 extend this time in an effort to resolve the dispute without court intervention.
8 C. Dispute Resolution
9 46. If the Settling Parties cannot resolve a dispute by the end of the meet and
10 confer process, the Parties may agree to enter into the Alternative Dispute Resolution
11 process provided by the United States District Court for the District of California,
12 including but not limited to stipulating to a hearing before a Magistrate Judge.
13 47. If the Settling Parties cannot resolve a dispute by the end of the Alternative
14 Dispute Resolution process, the party initiating the dispute resolution provision may
15 invoke formal dispute resolution by filing a motion before the United States District
16 Court for the Central District of California. The Settling Parties agree to request an
17 expedited hearing schedule on the motion if requested by any Settling Party.
18 47.1. Burden of Proof. In any dispute resolution proceeding, the moving party
19 shall have the burden of demonstrating compliance or non-compliance with the terms of
20 the Consent Decree.
21 47.2. Enforcement Fees and Costs. Litigation costs and fees incurred in
22 conducting a meet and confer session(s) or otherwise addressing and/or resolving any
23 dispute, including an alleged breach of this Consent Decree, shall be awarded to the
24 prevailing party in accordance with the standard established by § 505 of the Clean Water
25 Act, 33 U.S.C. §§ 1365 and 1319, and case law interpreting that standard.
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1 VI. MUTUAL RELEASE OF LIABILITY, DISPUTE RESOLUTION AND
2 COVENANT NOT TO SUE
3 A. Plaintiff’s Release
4 48. Upon the Effective Date of this Consent Decree, Plaintiff, on their own
5 behalf and on behalf of their current and former officers, directors, employees, and each
6 of their successors and assigns, and their agents, and other representatives release all
7 persons including, without limitation, RSV and Financial Guarantor (and each of their
8 direct and indirect parent and subsidiary companies and affiliates, and their respective
9 current and former officers, directors, members, employees, shareholders, and each of
10 their predecessors, successors, and assigns, and each of their agents, attorneys,
11 consultants, and other representatives) from and waive all claims alleged in the Notice
12 Letter and Complaint up to the Effective Date of this Consent Decree.
13 B. Parties’ Release
14 49. Unless specifically provided for in this Consent Decree, the Settling Parties,
15 on their own behalf and on behalf of their current and former officers, directors,
16 employees, and each of their successors and assigns, and their agents, and other
17 representatives release all persons including, without limitation, all other Settling Parties
18 to this Consent Decree (and each of their direct and indirect parent and subsidiary
19 companies and affiliates, and their respective current and former officers, directors,
20 members, employees, shareholders, and each of their predecessors, successors, and
21 assigns, and each of their agents, attorneys, consultants, and other representatives) from
22 any additional attorney’s fees or expenses related to the resolution of this matter.
23 50. Nothing in this Consent Decree limits or otherwise affects any Party’s right
24 to address or take any position that it deems necessary or appropriate in any formal or
25 informal proceeding before the State Board, Regional Board, EPA, or any other
26 administrative body on any other matter relating to RSV’s compliance with the Clean
27 Water Act occurring or arising after the Effective Date of this Consent Decree. However,
1 Plaintiff, their employees, officers, members, and directors shall not be entitled to
2 commence any civil action under Section 505(a) of the Clean Water Act, 33 U.S.C. §
3 1365(a), against RSV, for any violation which occurred during the period of time when
4 this Consent Decree was in force that was the subject of either the Notice Letter, the
5 Complaint or this Consent Decree.
6 VII. FORCE MAJEURE
7 51. A Party shall not be considered to be in default in the performance of any of
8 its obligations under this Consent Decree when performance becomes impossible due to
9 circumstances beyond the Settling Party’s control as defined by the Force Majeure
10 provisions herein, which includes any act of god, war, fire, earthquake, windstorm, flood
11 or natural catastrophe; civil disturbance, vandalism, sabotage, pandemic or terrorism;
12 restraint by court order or public authority or agency; inability to proceed due to pending
13 litigation under the California Environmental Quality Act; action or non-action by, or
14 inability to obtain the necessary authorizations, approvals, or permits from, any
15 governmental agency; or inability to obtain equipment or materials from the marketplace
16 if such materials or equipment are not reasonably available, though the cost of such
17 material or equipment is not a factor in whether it is reasonably available. Impossibility
18 and/or Force Majeure shall not include normal inclement weather, economic hardship, or
19 inability to pay. Any party seeking to rely upon this paragraph to excuse or postpone
20 performance shall have the burden of establishing that it could not reasonably have been
21 expected to avoid the impossibility or Force Majeure event and which by exercise of due
22 diligence has been unable to overcome the failure or performance. Delay in compliance
23 with a specific obligation under this Consent Decree due to Force Majeure as defined in
24 this paragraph shall not excuse or delay compliance with any or all of the financial
25 obligations required under this Consent Decree.
26 52. If RSV claims compliance was or is impossible as defined by the Force
27 Majeure provisions herein, it shall notify Plaintiff in writing as soon as possible, but in no
1 event more than five (5) business days of the date that RSV learns of the event or
2 circumstance that caused or would cause a violation of this Consent Decree (hereinafter
3 referred to as the “Notice of Nonperformance”).
4 53. Within ten (10) days of sending the Notice of Nonperformance, RSV shall
5 send Plaintiff a detailed description of the reason for the nonperformance and the specific
6 obligations under the Consent Decree that are or have been affected by the Force
7 Majeure. It shall describe the anticipated length of time the delay may persist, the cause
8 or causes of the delay, the measures taken or to be taken by RSV to prevent or minimize
9 the delay, the schedule by which the measures shall be implemented, and the anticipated
10 date of compliance. RSV shall adopt all reasonable measures to avoid and minimize such
11 delays.
12 54. The Settling Parties shall meet and confer in good faith concerning the non-
13 performance and, where the Settling Parties concur that performance was or is impossible
14 as defined by the Force Majeure provisions herein due to an event or issue in Paragraph
15 51, despite the timely good faith efforts of RSV, new deadlines shall be established.
16 55. If Plaintiff disagrees with RSV’s Notice of Nonperformance as defined by
17 the Force Majeure provisions herein, or in the event that the Settling Parties cannot
18 timely agree on the terms of new performance deadlines or requirements, either party
19 shall have the right to invoke the dispute resolution procedure pursuant to Article VI. In
20 such proceeding, RSV shall bear the burden of proving that any delay in performance of
21 any requirement of this Consent Decree was caused or will be caused by impossibility
22 and/or Force Majeure and the extent of any delay attributable to such circumstances.
23 VIII. MISCELLANEOUS PROVISIONS
24 A. No Admission of Liability
25 56. Neither this Consent Decree, the implementation of additional BMPs, nor
26 any payment pursuant to the Consent Decree shall constitute or be construed as a finding,
27 adjudication, admission, or acknowledgment of any fact, law, or liability, nor shall it be
1 construed as an admission of violation of any law, rule, or regulation. RSV maintains and
2 reserves all defenses they may have to any alleged violations that may be raised in the
3 future.
4 B. Assignment
5 57. Subject only to the express conditions contained in this Settlement
6 Agreement, all of the rights, duties and obligations contained in this Settlement
7 Agreement shall inure to the benefit of and be binding upon the Settling Parties, and their
8 successors and assigns. In the event a new successor or assign (a “Transferee”) will
9 continue equestrian operations at the Facility, RSV shall notify Coastkeeper ten (10) days
10 in advance of the proposed transfer (the “Transfer Notice”) and within ten (10) days
11 following the Transfer Notice, RSV will provide Coastkeeper with a written assignment
12 duly executed and acknowledged by RSV and the Transferee assigning RSV’s
13 obligations under this Consent Decree to the Transferee.
14 C. Construction
15 58. The language in all parts of this Consent Decree shall be construed
16 according to its plain and ordinary meaning, except as to those terms are defined in the
17 IGP, the Clean Water Act, or specifically herein.
18 D. Administrative Delay
19 59. RSV shall diligently pursue any approvals required for compliance with this
20 Consent Decree. Should such diligent pursuit of approvals required for compliance be
21 unavailing due to actions by or inaction on the part of any governmental or regulatory
22 entity with jurisdiction over the RSV, and RSV reasonably demonstrates these delays are
23 not attributable by any action or inaction on the part of RSV, any relevant compliance
24 deadlines set forth in this Consent Decree shall be tolled until such time as Parties agree
25 to an alternative means of compliance with the Consent Decree pursuant to the Force
26 Majeure clause contained herein.
27
1 E. Choice of Law
2 60. The laws of the United States shall govern this Consent Decree.
3 F. Severability
4 61. In the event that any provision, paragraph, section, or sentence of this
5 Consent Decree is held by a court to be unenforceable, the validity of the enforceable
6 provisions shall not be adversely affected.
7 G. Correspondence
8 62. Unless specifically provided for in this Consent Decree, all notices required
9 herein or any other correspondence pertaining to this Consent Decree shall be sent by
10 U.S. mail or electronic mail to all parties identified below:
11 If to Plaintiff Coastkeeper:
12 Orange County Coastkeeper
Attn: Sarah Spinuzzi
13 3151 Airway Avenue, Suite F-110
Costa Mesa, CA 92626
14 Email: sarah@coastkeeper.org
15 If to Defendants:
16 (a) Rancho Sierra Vista
Attn: Patty Garrison
17 31441 Avenida De La Vista
San Juan Capistrano, CA 92675
18 Email: Patty@rsvequestrian.com
19 (b) Varco & Rosenbaum Environmental Law Group LLP
Environmental Law Group LLP
20 Attn: S. Wayne Rosenbaum
225 W. Broadway, Suite 1900
21 San Diego, CA 92101
Email: swr@envirolawyer.com
22
If to Financial Guarantor:
23
(a) Rancho HHO Land Corporation
24
Attn:Patty Garrison
25 31441 Avenida De La Vista
San Juan Capistrano, CA 92675
26 Email: Patty@rsvequestrian.com
27
1 (b) Varco & Rosenbaum Environmental Law Group LLP
Environmental Law Group LLP
2 Attn: S. Wayne Rosenbaum
225 W. Broadway, Suite 1900
3 San Diego, CA 92101
Email: swr@envirolawyer.com
4
5 63. Notifications of communications shall be deemed submitted three (3)
6 business days after having been sent via U.S. mail or the day of sending notification or
7 communication by electronic mail. Any change of address or addresses shall be
8 communicated in the manner described above for giving notices.
9 H. Effect of Consent Decree
10 64. Except as provided herein, Plaintiff does not, by their consent to this
11 Consent Decree, warrant or aver in any manner that RSV’s compliance with this Consent
12 Decree will constitute or result in compliance with any federal or state law or regulation.
13 Nothing in this Consent Decree shall be construed to affect or limit in any way the
14 obligation of RSV to comply with all federal, state, and local laws and regulations
15 governing any activity required by this Consent Decree.
16 I. Counterparts
17 65. This Consent Decree may be executed in any number of counterparts, all of
18 which together shall constitute one original document. Telecopy, email of a pdf signature,
19 or facsimile copies of original signature shall be deemed to be originally executed
20 counterparts of this Consent Decree.
21 J. Modification of Consent Decree
22 66. This Consent Decree, and any provisions herein, may not be changed,
23 waived, discharged, or terminated unless by a written instrument, signed by the Settling
24 Parties. If any Settling Party wishes to modify any provision of this Consent Decree, the
25 Settling Party must notify the other Settling Party in writing at least twenty-one (21) days
26 prior to taking any step to implement the proposed change.
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1 K. Full Settlement
2 67. This Consent Decree constitutes a full and final settlement of this matter.
3 L. Full Integration
4 68. This is an integrated Consent Decree. This Consent Decree is intended to be
5 a full and complete statement of the terms of the agreement between the Settling Parties
6 and expressly supersedes any and all prior oral or written agreements, covenants,
7 representations, and warranties (express or implied) concerning the subject matter of this
8 Consent Decree.
9 M. Authority of Counsel
10 69. The undersigned representatives for Plaintiff and RSV each certify that
11 he/she is fully authorized by the party whom he/she represents to enter into the terms and
12 conditions of this Consent Decree.
13 N. Authority of Parties
14 70. The Settling Parties certify that their undersigned representatives are fully
15 authorized to enter into this Consent Decree, to execute it on behalf of the Settling
16 Parties, and to legally bind the Settling Parties to its terms.
17 71. The Settling Parties, including any successors or assigns, agree to be bound
18 by this Consent Decree and not to contest its validity in any subsequent proceeding to
19 implement or enforce its terms.
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1
2 72. IN WITNESS WHEREOF, the undersigned have executed this Consent
3 Decree as of the date first set forth below.
4
5 APPROVED AS TO CONTENT
6 Dated:__________________ By:
Garry Brown, Executive Director
7 Orange County Coastkeeper
8
9 Dated:__________________ By:
Name: Patty Garrison
10 Title: President/Owner
Rancho Sierra Vista
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Dated:__________________ By:
13 Name: Patty Garrison
Title: President/Owner
14 Rancho HHO Land Corporation
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1 APPROVED AS TO FORM
2 || Dated: By:
Sarah Spinuzzi, Senior Staff Attorney
3 Orange County Coastkeeper
4 Attorney for Plaintiffs
5 || Dated: By:
S. Wayne Rosenbaum, Partner
6 Varco & Rosenbaum Environmental Law Group
Attorney for Equestrian Services IT, Inc. and
7 HFT1, LLC
8
9 IS SO ORDERED.
10 q fan
L Td bade
11 || Dated: _January 05, 2021 By Me te fi
on. James V. Selna
12 United States District Court Judge
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