HomeMy WebLinkAboutContract 57611 CSC No.57611
SETTLEMENT AGREEMENT
This Settlement Agreement("Agreement")is entered into by and between the TARRANT
REGIONAL WATER DISTRICT (the "District"), a conservation and reclamation district and
political subdivision of the State of Texas, created and functioning under Article 16, Section 59,
of the Texas Constitution, MARTHA LEONARD ("Ms. Leonard"), a private landowner in
Tarrant County,Texas,and the CITY OF FORT WORTH,TEXAS(the"City"), an incorporated
home-rule municipality in the State of Texas (referred to herein, collectively, as the "Parties").
WITNESSETH
WHEREAS, the District is a duly created political subdivision of the State of Texas
operating under the Constitution and laws of the State of Texas; and
WHEREAS,Ms. Leonard is a private landowner in Tarrant County, Texas with authority
to enter into this Agreement; and
WHEREAS,the City is a duly incorporated municipality operating under the Constitution
and laws of the State of Texas; and
WHEREAS,the District and the City are duly authorized to enter into this Agreement;
and
WHEREAS, the City filed with the Texas Commission on Environmental Quality
("TCEQ") an application for a new Texas Pollutant Discharge Elimination System
("TPDES") Permit (the "Application"), styled as TPDES Permit No. WQ0015668001 (the
"Permit"), which is the subject of TCEQ Docket No. 2021-1211-MWD (the "TCEQ
Proceeding"); and
WHEREAS, the Permit, when finally issued by TCEQ, will authorize the City to
construct the Mary's Creek Water Reclamation Facility (the "MCWRF") and to discharge up
to a daily average of 15 million gallons per day ("MGD") of treated domestic effluent from
the MCWRF to Mary's Creek in Tarrant County ("MC Return Flow") through the outfall
authorized by the Permit(the "MCWRF Outfall").
WHEREAS,the District and Ms. Leonard each filed at least one request for a contested
case hearing in the TCEQ Proceeding and were both granted party status in the same; and
WHEREAS,the Parties entered into settlement negotiations through formal mediation
conducted by the TCEQ Alternative Dispute Resolution office; and OFFICIAL RECORD
CITY SECRETARY
Page 1 of 9 FT. WORTH, TX
WHEREAS, the Parties agree that resolution of the TCEQ Proceeding by unanimous
settlement agreement is in the best interest of the Parties;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, the Parties agree to the following provisions:
L INDIRECT REUSE PROJECT
A. The Project.The District will pursue,in good faith, an indirect reuse project to design,
permit, construct, operate, and maintain an on-channel impoundment
("Impoundment"), intake, and pump station on Mary's Creek, downstream of the
MCWRF Outfall and upstream of Interstate 30, to divert some or all of the amount of
the MC Return Flows, less losses, and transfer the MC Return Flows to the Eagle
Mountain Lake connection pipeline at a connection to be located north of the TRWD
Eagle Mountain balancing reservoir("Indirect Reuse Project").
B. Authorizations. The District is responsible for securing all necessary local, state,
federal or other permits and authorizations for the Indirect Reuse Project ("Necessary
Authorizations"). The Parties acknowledge that Necessary Authorizations include but
are not limited to, permits or authorizations from the U.S. Army Corps of Engineers
("Corps") and TCEQ, a floodplain development permit, and obtaining legal title or
other property interest in land for the Impoundment, intake structure, pump station,
pipeline, and any other infrastructure or facilities necessary to implement the Indirect
Reuse Project.
C. City Support. The City shall actively support the Indirect Reuse Project including the
District's efforts to obtain Necessary Authorizations and to design and construct the
Indirect Reuse Project. The City's active support shall include participating in
meeting(s)with the general public and/or with specific landowners as they relate to the
Indirect Reuse Project,upon reasonable advance notice, as requested by the District.
D. Design Considerations.
1. Size. The Impoundment shall be sized not larger than necessary, as determined
by the District, to divert up to the maximum amount of the MC Return Flows;
subject to further review and agreement among the Parties as described further
below in Section (I)(13)(4).
2. Suitable Site. The District will reasonably consider distance downstream from
the MCWRF Outfall location in selecting a suitable site for the Impoundment
upstream of Interstate 30. The District acknowledges that a suitable site will
require that the Indirect Reuse Project maintain water quality in the
Impoundment created on Mary's Creek consistent with applicable Texas
surface water quality standards adopted by the TCEQ ("SWQS"). The City
Page 2 of 9
acknowledges that topography, environmental considerations, and landowner
cooperation are relevant factors in selecting a suitable site.
3. Dissolved Oxygen Review.The District will provide the preliminary design of
the dam and Impoundment to the City as soon as practicable. The City,together
with the City's water quality engineering consultant, will promptly model the
Impoundment, utilizing the approved TCEQ model, to verify that numerical
SWQS for dissolved oxygen ("DO") will be maintained during full permitted
discharge conditions. Should modeling indicate that numerical DO standards
will not be maintained in the Impoundment, the City shall share the modeling
with the District for the District's review, comment, and concurrence or
objection regarding such conclusion. The City will cooperate with the District
and TCEQ Water Quality Division staff, as necessary,to evaluate the modeling
and its conclusions. If TCEQ staff concurs, on a preliminary basis, that the
model and the conclusion that numerical DO standards in the Impoundment will
not be maintained are sound,the City will cooperate with the District and TCEQ
Water Quality Division staff, as necessary,to evaluate changes in design and/or
mitigation measures that can be implemented to maintain TCEQ's adopted
SWQS for DO in the Impoundment without changes to the City's existing
Permit limits.
4. Enhanced Opportunities. During its implementation of the Indirect Reuse
Project,the District may identify opportunities for the Indirect Reuse Project to
address issues beyond withdrawal of the MC Return Flows. If the District
identifies any reasonable opportunity to adjust or modify the Indirect Reuse
Project in a manner that would support other regional stewardship or growth
objectives, all Parties will consider those opportunities in good faith. If the
Parties agree that such changes are desirable but materially affect the risk of a
modified Indirect Reuse Project becoming legally or practically infeasible, the
Parties may discuss a modification of the Agreement to accommodate a
modified Indirect Reuse Project and potential adjustment of the dates triggering
the City's obligation under Section (I)(G)(3)herein.
E. Implementation.
1. After all Necessary Authorizations are secured and final (not subject to appeal),
the District will implement the Indirect Reuse Project consistent with the
Necessary Authorizations.
2. Once the MCWRF and the Indirect Reuse Project are operational,the City shall
provide the District with real-time discharge volume data consistent with the
means, methods, and accuracy required for the District to comply with all
Necessary Authorizations.
Page 3 of 9
F. Future DO Monitoring. If, at any point after the District's construction of the
Impoundment, water quality monitoring data for DO in the Impoundment indicates
that DO concentration as measured in the Impoundment fails to meet TCEQ's adopted
numerical DO criteria for Mary's Creek, the District shall immediately begin
consultation with the City to identify the cause of such failure. If the existence of the
Impoundment is determined to be the primary cause of such failure, the District shall
collaborate and cooperate with the City to mitigate such failure in a cost-effective
manner and will take reasonable steps available at the Impoundment, as determined
appropriate in cooperation with the City. In addition, the City acknowledges that it
shall take reasonable steps to mitigate such failure at the MCWRF. If the cause of the
DO failure is at issue and the Parties cannot identify and agree on reasonable, cost-
effective set of steps to take at the Impoundment and/or at the MCWRF, either
individually or together, the Parties shall engage in a Formal Dispute Resolution
process as provided in in Section III herein to resolve the conflict consistent with this
Section (I)(F).
G. Infeasibility Determination.
1. Conference and Concurrence.
(a) Whether the Indirect Reuse Project is legally or practically
infeasible may be determined at any time by concurrence between the
City and the District, confirmed in writing by the City Manager and the
District General Manager. If the District has not initiated operations of
the Indirect Reuse Project on or before October 31, 2028, but no later
than December 31, 2028, representatives of City and the District shall
meet to:
i. discuss the status of the Indirect Reuse Project, and
ii. make a good faith effort to j ointly determine if the Indirect Reuse
Project remains feasible both as a legal and a practical matter
and should continue to be pursued or should be determined to be
legally or practically infeasible for purposes of Section
(I)(G)(3).
(b) If the Indirect Reuse Project is rendered infeasible in a manner other
than as described in Section (I)(G)(2), including, for example, due to
physical, environmental, financial, legal, or other constraints (e.g., the
SWQS or compensatory mitigation issues), the District will provide
information to the City to support its determination of infeasibility and
the City shall review and concur or object based on an articulated
engineering, environmental, hydrological, or appropriate technical or
financial basis. If,following the City's and District's respective review
of information as provided in this Section I(G)(1)(b),the Parties do not
agree that the Indirect Reuse Project is legally or practically infeasible
for purposes of Section (I)(G)(3), the Parties shall engage in a Formal
Dispute Resolution Process as described in Section III,herein.
Page 4 of 9
2. Denial of Necessary Authorizations. Notwithstanding Section (I)(G)(1), the
District, at its election, can unilaterally declare the Indirect Reuse Project
legally or practically infeasible for purposes of Section (I)(G)(3), without the
need for the City to concur, at the point at which any Necessary
Authorization(s)is or are (a) actually denied or(b) effectively denied,meaning
not issued or secured by December 31, 2028.
3. Total Phosphorous. If the Indirect Reuse Project is determined to be legally
or practically infeasible pursuant to this Section (I)(G), the City shall promptly
apply to TCEQ for a minor amendment to the Permit, requesting a 0.1 mg/L
daily average limit on Total Phosphorus in all phases of the Permit.
II. OTHER OBLIGATIONS
A. Total Nitrogen. Prior to the District's and Ms. Leonard's submissions under Section
ILD. herein to the State Office of Administrative Hearings and the TCEQ to withdraw
their respective hearing requests,the City shall request that TCEQ's Executive Director
revise the draft permit to add a 6 mg/L Total Nitrogen daily average limit to the effluent
limitations therein. The requested measurement frequency for the Total Nitrogen limit
shall be once per day with a composite sample type.
B. Temporary Flow Condition. Prior to the earlier of (1) the date the Indirect Reuse
Project is operational or (2) the date that is seven years following the TCEQ's formal
issuance of the Permit,
(a) the City agrees to discharge no more than 3 MGD of treated effluent
from the MCWRF to Mary's Creek at all times when corrected
streamflow at USGS gage 08047050 (Mary's Creek near Benbrook,
TX) indicates Mary's Creek base flow is less than 4.6 cubic feet per
second ("cfs"). For purposes of this Section (II)(B), "corrected
streamflow" shall be calculated using the 8:00 am USGS reading minus
the 8:00 am MCWRF discharge flow measured on the same day.
(b) The City may discharge more than 3 MGD of treated effluent from
the MCWRF to Mary's Creek on any day when either(1)the corrected
streamflow exceeds 4.6 cfs at USGS gage 08047050(Mary's Creek near
Benbrook, TX) or (2) the 8:00 am USGS gage 0804700 (Clear Fork
Trinity River near Benbrook) reading is greater than 46 cfs.
C. If the City ever files an application with the TCEQ seeking a major amendment to the
Permit increasing the permitted discharge flowrate above 15 MGD, the City shall
analyze the impact of such proposed increased discharge on Mary's Creek and the Clear
Fork (between the Mary's Creek confluence with the Clear Fork and the Clear Fork
confluence with the West Fork),including using or providing all necessary information
for the District to use the CE-QUAL-W2 or other updated and appropriate modeling
Page 5 of 9
tools to assess the impacts to SWQS, including nutrients and the potential for algal
growth. For any application to discharge greater than 15 MGD, the City shall share
such analysis with the District, or work with the District to achieve such analysis, as
early as possible in the City's planning process.The City will reasonably consider input
provided by the District during this planning process. For the avoidance of doubt, the
District does not waive any other public participation or hearing opportunities that may
exist pursuant to TCEQ rules.
D. The District and Ms. Leonard will unconditionally withdraw their respective pending
hearing requests and protests of the Permit within three business days of the later of(a)
execution of this final Settlement Agreement by all Parties or(b)the submission of the
City's formal request in writing to TCEQ to incorporate a total nitrogen limit of 6 mg/L
into the Permit.
III. FORMAL DISPUTE RESOLUTION
A. With respect to those matters set out in Section I(G)(1) and Section (I)(F)that may
be referred to Dispute Resolution, should the City and the District be unable to
reach agreement through the exchange of information,then the current City of Fort
Worth Water Director, as representative of the City, and current District General
Manager, as representative of the District,will attempt to resolve the dispute within
ten business days. Should these individuals be unable to resolve the matter, either
the City or the District may invoke Formal Dispute Resolution by notifying the
other Party in writing.
B. Within three business days of either the City or the District invoking Formal
Dispute Resolution:
1. the City, at the City's expense, shall designate one or more outside independent
expert(s) (the "City Designated Expert") qualified to render an unbiased
opinion on the issue in dispute (e.g.,water quality, permitting, etc.); and
2. the District, at the District's expense, shall designate one or more outside
independent expert(s) (the "District Designated Expert") qualified to render an
unbiased opinion on the issue in dispute.
C. The City Designated Expert and the District Designated Expert shall promptly
agree on one or more independent expert(s)qualified to render an unbiased opinion
on the issue in dispute (e.g.,water quality,permitting, etc.) (the "Panel Designated
Expert"). The Panel Designated Expert, together with the City Designated Expert
and the District Designated Expert, are collectively the "Independent Expert
Panel."
1. The Independent Expert Panel shall notify the City and the District of the
selection of the Panel Designated Expert by email to: Rachel Ickert at
rachel.ickert@trwd.com with a copy to Stephen Tatum at
stephen.tatum@trwd.com for the District and Christopher Harder at
Page 6 of 9
Christopher.Harder@fortworthtexas.gov and Christopher Mullins at
Christopher.Mullins@fortworthtexas.gov for the City.
2. The Panel Designated Expert and the firm or organization employing such
expert(s) shall not be currently engaged by the City or the District and not have
done more than $100,000 of work for either the City or the District within the
last three years (unless the City and District representatives named in Section
(III)(A) both waive this restriction by emailed confirmation).
D. The City and the District shall fully cooperate with the Independent Expert Panel
by providing the Independent Expert Panel and the other Party with a written
explanation of the dispute, specifying the nature of the dispute and specifying the
outcome sought by five business days after the date notice of the selection of the
Panel Designated Expert is received. If the dispute involves differing
interpretations of information, modeling, or data, the City and the District shall
promptly provide the Independent Expert Panel with any and all such information,
including, without limitation, internal or third party consultant modeling, agency
and expert data provided to and/or relied upon the City and/or the District. In
response to initial submissions, the City or the District may provide supplemental
information to the Independent Expert Panel within five business days. The City
and the District shall make available an expert representative of such Party to
provide information and answer questions to facilitate the review of the
Independent Expert Panel.
E. If the Independent Expert Panel determines a joint meeting would be helpful in
resolving the dispute, the Independent Expert Panel shall hold a meeting with the
City, District, and/or their representatives as soon as feasible.
F. The Independent Expert Panel will resolve the dispute by written recommended
outcome articulating the rationale and basis for such recommendation. The
Independent Expert Panel will endeavor to issue the recommendation 30 days from
receipt of the last of the written submissions.
G. If the City and the District do not elect to accept the recommended outcome of the
Independent Expert Panel, the Parties agree that the Independent Expert Panel
recommendation shall be admissible as an expert opinion in related litigation
between the Parties, if any.
H. The City shall be solely responsible for the payment of costs for the City Designated
Expert and the District shall be solely responsible for all costs for the District
Designated Expert. All costs of the Panel Designated Expert shall be paid one-half
(1/2)by the City and one-half(1/2) by the District.
Page 7 of 9
IN WITNESS WHEREOF, the Parties acting in their individual capacity or under
authority of their respective governing bodies have caused this Agreement to be duly executed in
several counterparts, each of which shall constitute an original, and the effective date of this
Agreement shall be the latest date identified among the three parry signatures below.
TARRANT REGIONAL WATER DISTRICT
2A(f=
BY Dan Buhman(May 24,202215:48 CDT)
DATE May 24, 2022
ATTEST:
Jam s H (May 24,202216:16 CDT)
Vice President, Board of Directors
APPROVED AS TO FORM AND LEGALITY:
5:7—L-M
StepheifTatum7may24,202216:20 CDT)
Attorney for the District
(District Seal)
MARTHA LEONARD
BY 701ev.4c �tox
DATE Z—
OFFICIAL RECORD
CITY SECRETARY
Page 8 of 9 FT. WORTH, TX
CITY OF FORT WORTH, TEXAS
1ST BGLY'6 6
ByDanaBurghd off( ay25,2 13
DATE
APPROVED AS TO FORM AND LEGALITY:
01l
DBlack(May 25,2022 09:12 CDT)
Assistant City Attorney
(City Seal)
ATTEST: oa FORr�aa
p� �oo00006o0
0 0
~O °�'Id
0
4aAette S.Goodall(May 25,202213• CDT) o 00
City Secretary �d4 a�00000000000 a�
� nEX Aso4p
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Page 9 of 9
2022.05. 12 - Settlement Agreement-CFW-TR
WD-Leonard-TCEQ Docket 2021 -1211 -MWD
(002)
Final Audit Report 2022-05-24
Created: 2022-05-24
By: ELLIE TINGEY(ellie.tingey@trwd.com)
Status: Signed
Transaction ID: CBJCHBCAABAAa9OKZtxjlKAEv3O9oXFb1VCyDcYHOXZ9
"2022.05. 12 - Settlement Agreement-CFW-TRWD-Leonard-TCE
Q Docket 2021 -1211-MWD (002)" History
Document created by ELLIE TINGEY(ellie.tingey@trwd.com)
2022-05-24-5:07:08 PM GMT-IP address:75.142.185.18
Document emailed to Dan Buhman (dan.buhman@trwd.com) for signature
2022-05-24-5:10:52 PM GMT
Email viewed by Dan Buhman (dan.buhman@trwd.com)
2022-05-24-8:47:31 PM GMT-IP address:64.198.67.138
,rJa Document e-signed by Dan Buhman (dan.buhman@trwd.com)
Signature Date:2022-05-24-8:48:08 PM GMT-Time Source:server-IP address:64.198.67.138
Document emailed to James Hill (trwdboardjh@trwd.com) for signature
2022-05-24-8:48:10 PM GMT
Email viewed by James Hill (trwdboard—jh@trwd.com)
2022-05-24-9:15:58 PM GMT-IP address: 172.58.179.64
Document e-signed by James Hill (trwdboardjh@trwd.com)
Signature Date:2022-05-24-9:16:46 PM GMT-Time Source:server-IP address: 172.58.109.1
Document emailed to Stephen Tatum (stephen.tatum@trwd.com) for signature
2022-05-24-9:16:47 PM GMT
Email viewed by Stephen Tatum (stephen.tatum@trwd.com)
2022-05-24-9:19:35 PM GMT-IP address: 107.77.200.185
Adobe Acrobat Sign
t5a Document e-signed by Stephen Tatum (stephen.tatum@trwd.com)
Signature Date:2022-05-24-9:20:26 PM GMT-Time Source:server-IP address: 107.77.200.185
Agreement completed.
2022-05-24-9:20:26 PM GMT
Adobe Acrobat Sign
City of Fort Worth, Texas
Mayor and Council Communication
DATE: 05/24/22 M&C FILE NUMBER: M&C 22-0401
LOG NAME: 12SETTLEMENT AGREEMENT WITH TRWD AND M LEONARD FOR MARYS CREEK
SUBJECT
(ETJ adjacent to CD 3)Authorize Execution of a Settlement Agreement with Tarrant Regional Water District and Martha Leonard for Resolution of
the Mary's Creek Wastewater Treatment Plant Discharge Permit Application
RECOMMENDATION:
It is recommended that the City Council authorize execution of a settlement agreement with Tarrant Regional Water District and Martha Leonard for
resolution of the Mary's Creek Wastewater Treatment Plant discharge permit application.
DISCUSSION:
On July 23, 2021, after taking public input, the TCEQ reaffirmed its March 16, 2020, approval of the final draft permit for the Mary's Creek Water
Reclamation Facility(MCWRF)holding that the draft permit is protective of water quality. Consistent with administrative procedure, on November
3, 2021,the TCEQ heard and considered specific requests for a contested hearing brought by Martha Leonard, a landowner along Mary's Creek,
and Tarrant Regional Water District(TRWD). Ms. Leonard was recognized as an affected party,thus sending the draft permit to the State Office of
Administrative Hearings(SOAH)for a contested hearing. On February 28, 2022 SOAH held a preliminary hearing to address TRWD's request for
recognition and, after taking testimony, SOAH deemed TRWD to also be an affected party. Concurrent with the contested hearing schedule, TCEQ
held mediation sessions with Fort Worth, TRWD and Martha Leonard in March, 2022. At these sessions,the parties discussed an indirect reuse
proposal which resulted in a negotiated settlement agreement. If the proposed settlement agreement is approved by the parties,then TRWD and
Martha Leonard agree to withdraw their contested hearing requests, and the City will request an update to the draft permit.
This settlement agreement is beneficial to both City and TRWD water ratepayers as well as Ms. Leonard. The City benefits by being able to
quickly start design of the MCWRF, saving time and expense of a protracted hearing. Starting this work is critical as proposed developments in
West Fort Worth will tax the capacity of existing wastewater collection lines to Village Creek WRF. TRWD and City ratepayers will benefit by the
construction of both direct and indirect reuse projects made possible by the MCWRF. Ms. Leonard has agreed to the terms as being protective of
and upstream of the area of Mary's Creek enjoyed by her family.
Planning, site acquisition, and permitting work for the MCWRF has been in progress for the last 20 years. In 2017 work was initiated to prepare
the MCWRF permit application,which was submitted to the TCEQ on March 23, 2018, requesting an interim discharge limit of 10 MGD and a final
discharge limit of 15 MGD.
The basic terms of the settlement include:
TRWD Responsibilities
• TRWD will permit, design and construct an indirect reuse project on Mary's Creek consisting of an impoundment, intake, pump station and
pipeline to convey MCWRF discharged effluent from Mary's Creek to the existing TRWD water supply system where it will be blended with
water from other TRWD lakes.
City Responsibilities
• City will request TCEQ to add a 6 mg/I total nitrogen permit limit to the MCWRF TPDES permit.
• If the MCWRF begins operation prior to the TRWD indirect reuse project completion,the MCWRF will be limited to 3 MGD effluent discharge
during dry weather conditions. This temporary discharge limitation will not impact the City's ability to provide direct reclaimed water to
potential customers.
• Should TRWD's indirect reuse project be deemed to be infeasible,the City will amend the MCWRF discharge permit, lowering the total
phosphorus limit from 0.2 mg/I to 0.1 mg/I.
A Form 1295 is not required because the agreement will be with a governmental entity, state agency or public institution of higher education:
TRWD
A Form 1295 is not required because: Martha Leonard is an individual.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that approval of the above recommendation will have no material effect on City funds.
Submitted for City Manager's Office W. Dana Burghdoff 8018
Originating Business Unit Head: Leann Guzman 8973
Additional Information Contact: Doug Black 7615
Expedited