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Staff Report to the Mayor and City Council ICGMPA Date: August 3, 2010 Page 2 referred to as the Lytle Creek Judgment, and the City's wells have been operated under this judgment. In 2005, the City of San Bernardino and the U.S. reached a settlement in the two federal cases. The settlement was memorialized in a consent decree, which became an order and judgment by the federal court. The consent decree contemplated the transfer of several millions of dollars to the City of San Bernardino in order to build and operate a remedy to catch and treat the water in the plumes. The consent decree also required the City of San Bernardino to institute groundwater controls within its jurisdiction to ensure that the "remedy" was not affected by other activities in the Basin, such as pumping and recharge. Part of the groundwater controls required by the consent decree and order mandated the City of San Bernardino to enact an ordinance, which attempted to have an effect within City boundaries to regulate pumping and recharge activities. Prior to entering into the consent decree and order, the City of San Bernardino had not consulted with any of the other pumpers/rechargers. When the consent decree was published for public review, many public entities, most of whom are now parties to the ICGMPA, threatened the City of San Bernardino with (a) intervention in the federal claim; and (b) a separate lawsuit, including CEQA claims. In fact, the City of Riverside filed (and later withdrew) one in San Bernardino Superior Court. As a result of this general response by the other public entities engaged in activities in the basin, there were several meetings among all these entities, which eventually resulted in the formation of the Institutional Control Settlement Agreement ("ICSA") Group. The work of the ICSA Group has resulted in the proposed ICGMPA, as well as the interim Agreement to Develop and Adopt an Institutional Controls Groundwater Management Program, which was originally approved in 2005. The principal purpose of the interim agreement has been to ensure that the City of San Bernardino did not attempt to enforce its ordinance, as well as to have interim controls in place to protect the remedy discussed above. It does not appear as though the City formally consented to the last extension of that interim agreement, from December of 2009 through June 30, 2010, but the City has honored that agreement as being in place. The ICGMPA specifically provides that the interim agreement is to be extended until the effective date of the ICGMPA. The ICSA Group concluded that a groundwater model had to be developed to analyze any projects and determine how they would affect the remedy, as well as other pumpers and rechargers, in order to develop a final agreement. Several experts were asked to work on the model, building initially from a model the City of San Bernardino was beginning to develop. The process of developing a model took about two years and cost more than $1 million. During those two years, the ICSA agreement was renewed twice. In addition, quarterly reports from the plumes were submitted to EPA and members of the ICSA Group by the City of San Bernardino. RVLIT\PDALLARDA\762141.7