Information About the Wastewater Treatment Plant Dispute
and Settlement Agreements
Originally posted April 15, 2015 and briefly amended through 2020
We hope this explanation will clarify why Township Board of Directors approved the original March 2015 settlement
and the amended settlement agreement of June 2020.
...As I told you when this case started, this involved really the future of people yet unborn, and it involved probably the present population of somewhere close to 10,000 people that are going to be affected by this resolution now... in the most positive way.
- Sonoma County Superior Court Judge Elliot Daum, advising the jury of the settlement on March 25, 2015
...I don't think it would have resolved the way it has... being on a really positive note. Looking forward to a really good future between these two communities ...
- Brooktrails Township Board President Rick Williams thanking the jury on March 25, 2015
March 19, 2015, Brooktrails Township attorneys began presenting the Brooktrails case. Three days of testimony were given and you can read or download the trial transcripts for March 19, 2015, March 20, 2015, and March 24, 2015.
As noted in the Willits News, on Sunday, March 22, 2015, Willits Mayor Bruce Burton contacted Township Board President Rick Williams to arrange a mediation session. On Tuesday, March 24, 2015, while the trial continued in Santa Rosa, a 12-hour mediation session was conducted in Willits by former Mendocino County Judge James King.
Wednesday morning, a settlement resulting from the mediation session was reported to the Court (that transcript can be viewed here). As mutually agreed, Thursday morning a joint press release was issued. On April 6, 2015, a final Settlement Agreement was signed. On April 15, 2015, Board President Williams sent a follow-up letter to Mayor Burton.
Subsequent news stories appeared based upon inaccurate information apparently provided by others. It is important that ratepayers understand the settlement as Brooktrails officials understand it.
To quote the press release on what Brooktrails officials regard as an important outcome of the settlement:
"...The settlement established lines of communication for consideration of issues of joint interest and concern as those issues might arise in the future. For example, the settlement put in place a process for considering the establishment in the future of a Joint Powers Agency to administer the wastewater treatment plant."
As previously noted on this website, the dispute began in 1997. Thirteen years later, in 2010, the Township reluctantly filed a lawsuit. You can view the filed complaint here. Brooktrails requested judicial declaratory relief regarding matters related to what Township ratepayers were paying for sewage treatment plant operating costs, specifically regarding compliance with contractual provisions on accounting, auditing, and flow metering. As you can also read, Brooktrails requested judicial declaratory relief regarding whether the Township was obligated to pay for a 2003 real estate purchase.
The settlement specifically provided that over four fiscal years, the Township pay to the City a flat $22,000.00 per month for operating costs. The settlement specifically provided that a new meter be installed to accurately measure the wastewater flow entering the wastewater treatment plant. At the end of four years, a contract compliance audit was to be completed on the City's accounting and flow records. The City and the Township were to use the information for developing a system to determine the Township's future obligations for operating costs.
Further, the settlement specifically provided that the Township will not pay for the 2003 real estate purchase, billed in the amount of $285,386 plus interest (according to the City's Cross-Complaint).
Subsequent to filing its original complaint, the Township learned that the capacity in the new wastewater treatment plant had been reduced in the design of the new plant, threatening the capacity available to owners of vacant lots who may wish to build a home. Brooktrails filed an additional lawsuit on this issue. The settlement guarantees the Township's right to use that important capacity of approximately 36%, which it purchased back in 1982.
Related to that capacity issue, the Township filed a cross-complaint regarding its liability for debt incurred for building the new wastewater treatment plant. The settlement provided that the Township pay $213,500 of $397,952.38 previously billed unpaid past loan payments and Township's share of future debt payments be reduced 4.5%, down from $376.90 per $1,000 of debt to $360.00 per $1,000 of debt.
In 2019, four years into the settlement agreement, the Township and City of Willits entered into a contract with a private firm to audit the City's wastewater accounting and flow records. Discrepancies in the final audit report led policy makers and staff to agree on another five-year settlement agreement. The new agreement raised the Township's monthly rate to $28,000 with an annual cost of living adjustment (COLA) of 3.5% per fiscal year for five years. The COLA rate is based on the US Department of Energy Annual Water and Wastewater Escalation Rates Study (2016).
More About the Willits Wastewater Treatment Plant Dispute
The Brooktrails Township is a California public agency committed to honoring its contracts with others and complying with the Constitutions and laws of the United States and the State of California. The Brooktrails Township expects others, particularly other public agencies, to share that commitment and avoid costs and stress associated with court proceedings.
Since 1997, the Brooktrails Township had been asking - and then insisting - that the City of Willits honor a contract providing for the allocation of operating costs for the Wastewater Treatment Plant. Since 2005 the Brooktrails Township had been asking - and then insisting - that the City of Willits honor a contract providing for the allocation of construction costs for the new Wastewater Treatment Plant. Since 2013 the Brooktrails Township had been asking that the City of Willits new Wastewater Treatment Plant be brought into compliance with federal and state laws in order to avoid polluting the groundwater and surface waters of the Little Lake Valley.
Thirteen years after the dispute started in 1997, Brooktrails filed a lawsuit seeking declaratory relief from the failure of the City of Willits to honor the contract. The contract compliance issues involved millions of dollars. Those millions of dollars represented per customer sewer service charges totaling at least $24.50 per month for decades as follows:
The City was demanding that Brooktrails ratepayers pay at least $7.25 a month to subsidize wastewater treatment
plant operating costs that should be borne by City ratepayers pursuant to the contract.
The City was demanding that Brooktrails ratepayers pay at least $9.50 a month to subsidize wastewater treatment
plant construction loan costs that should be borne by City ratepayers pursuant to the contract.
The City has taken wastewater treatment plant capacity previously purchased by Brooktrails as capacity "exclusive" to Brooktrails; this has created the possibility of shifting costs from vacant lot owners to current Brooktrails ratepayers amounting to a rate of at least $7.75 a month.
Accepting the policies establishing these long-term costs would have determined how future wastewater treatment plant repair and capital improvement costs were distributed to Brooktrails ratepayers.
The dispute was complex but others have tried to succinctly summarize it. The Local Agency Formation Commission of Mendocino County in its City of Willits Municipal Service Review (2015) stated:
"On September 11, 1967 the City of Willits (City) and the Brooktrails Resort Improvement District – now the Brooktrails Township Community Services District (District) entered into an agreement allowing the District to dispose of up to 0.49 mgd ADWF of sewage into the City WWTF.
"The Agreement has been amended over the years: Amendment No. 2 in 1975 (which also repealed Amendment No. 1); Amendment No. 3 in 1982; and Amendment No. 3 in 2007. In 1997, a dispute arose between the District and the City regarding the allocation of operating costs for the WWTF. This dispute, along with several other issues has been ongoing for the past 17-years. In 2010, the District filed a lawsuit in Mendocino County Superior Court seeking declaratory relief regarding a number of issues, including metering to measure the flow of sewage, accounting methods and allocation of operating costs, annual audits, WWTF construction costs and plant capacity, and disposal of treated effluent.
"The degree of time and energy devoted to this situation is best reflected in the respective meeting agendas of the City and the District, as at practically every regular and special meeting there is a closed session on this litigation. There does not appear to be any resolution of these issues in the foreseeable future. As the District said in a report to its ratepayers in June 2014: 'Township officials in 1997 did not believe litigation was the best option for the region. As it turns out, it has been made clear after 17 years that the only way all four components of the dispute can be resolved is through an ‘independent adjudicator, be it judge, jury or arbitrator,’ as the [then] City Attorney threatened in 1997.'”
In October 2015, this was written in the Anderson Valley Advertiser:
"THE DISPUTE BEGAN WITH accounting questions back in 1997 and culminated in a lawsuit in 2010 after Brooktrails was unable to get the City of Willits to comply with the with the terms of their agreements. The main focus of the dispute now is that Willits expects Brooktrails to pay for treatment capacity at the new plant that is needed to treat sewage from Willits. Brooktrails is willing to give up treatment capacity that it is entitled to, but only if Willits will agree to pro-rate the treatment plant construction costs based on the flow that each party contributes to the plant. Willits is supposed to meter the flow but the meter quit working in 2002 and Willits never replaced it with a meter capable of accurately measuring the amount of flow that each party contribute."
Summaries of Dispute-Related Occurrences
Updated February 2015
An exchange over the lack of working accurate meter measuring flow entering the WWTP for 13 years began with the presentation of an Agenda Summary Report, Item No. 9e (1) for the November 12, 2014 Willits City Council meeting. In its November 14, 2014, edition The Willits News offered this report:
"Adding fuel to the already hot conflict between Willits and Brooktrails, was Willits confirmation at the Nov. 12 council meeting that its flow meter measuring the total flow of sewage into the new plant was built wrong.
"Brooktrails advised the city in July 2013 it considered the new meter to be inaccurate. The city took no action. In October 2013 Brooktrails had its contractor inspect the meter.
"In April 2014, Brooktrails provided the city with copies of the inspection showing the meter had a number of installation flaws, according to [City Attorney James] Lance.
"The city took no action.
"In July 2014, after the city sent Brooktrails a bill for payment (based on the faulty meter) Brooktrails requested a copy of the calibration records for the meter in question. Willits contacted a meter calibration firm which advised the city there were problems it had found in October 2013. The firm, MCC Control Systems, confirmed the problem areas in August 2014. One problem, a programming error, was corrected in September 2014. The other involving the improper installation of the meter, was not discovered during the original installation by Speiss Construction Company in 2009.
"Lance suggested the city contact Speiss to have the problem corrected.
"Until the installation error is corrected the city expects to use the meter leaving the plant to determine flow rates through the plant."
The problem with the idea of using the meter leaving the plant to determine flow rates is that the contract between the City and Brooktrails specifically provides that operating costs "shall be apportioned annually by the City according to the ratio of flow of the District to the total flow entering the treatment plant."
Still one might want to say "what's the problem?" The answer is in the 2007 SHN Technical Memorandum: Willits WWfP Influent Flow Meter page 3 of 12 which states (emphasis added):
"In addition to the agency agreement, the City is required by their NPDES Permit to regularly report the total flow to and/or from the facility. This report is based on data collected from the flow meter located in the plant's influent sewer. Flows measurements reported from this location should only include influent flow - that is flows prior to flow splitting to the surge basin and/or the return of any process flows drained back to the influent sewer for subsequent treatment."
What that statement in a report from the plant's design engineer's recognized is that when the sewage comes into the plant from the sewer collection systems of the City and Brooktrails, after the flow goes through the influent meter some (or all) of it can be diverted to holding ponds, surge basins, from which it can evaporate, percolate into the ground, and overflow into the Little Lake Valley. And even if that wasn't possible, once the sewage is in the ponds the City can determine when and at what rate that pond sewage is pumped into the treatment plant and out of the plant after treatment.
In other words, that the city expects to use the meter leaving the plant to determine flow rates into the plant is inconsistent with generally accepted engineering practices and the practices of the Regional Water Quality Control Board (RWQCB) as pointed out in this February 19, 2015 letter to the RWQCB from former Board Chairman Daniel Crowley. The new plant was built specifically because the old plant could not deal with peak flow periods. If they don't accurately measure influent, there will be no record of peak flow periods.
The Agenda Report and City staff asked for a response from Brooktrails. The Brooktrails General Manager initially sent a letter on November 17, 2014, to the City Manager pointing out that both the sewer plant's permit from the Regional Water Quality Control Board and the Agreement between the City and Brooktrails require a correctly functioning meter measuring the sewage influent as it enters plant, as well as any meter measuring the effluent as it leaves the plant. That meter combination allows federal and state regulators to determine wastewater losses from the various storage ponds. In the General Manager's letter it was noted Brooktrails would be providing engineering recommendations regarding the metering of influent which the General Manager did in a December 3, 2014, letter recommending the installation of a Flo-Dar meter which was the expressed preference of the WWTP project manager on January 3, 2007.
In a December 15, 2014, letter the Willits City Manager and Willits Public Works Director stated:
"With respect to your suggestion to install a Flo-Dar meter to measure incoming flows, we request that you provide a written recommendation with a cost estimate, both prepared and signed by a Registered Civil Engineer licensed by the State of California to support this alternative."
In a response December 19, 2014, letter, the Township General Manager replied:
"Pursuant to your request, we will have a report 'prepared and signed by a Registered Civil Engineer licensed by the State of California.' Prior to the issuance of the requested report we would like our engineering representative to inspect the manhole(s) immediately upstream from the current influent meter as soon it can be scheduled at our mutual convenience."
Two months later after not being contacted by the City to set the inspection, the Brooktrails General Manager sent a February 19, 2015, letter stating:
"The Township had hoped that the City would schedule the aforementioned inspection so that field findings could be confirmed in the report. It is now apparent to the Township that the City is not prepared to schedule such an inspection. Therefore I am attaching the report prepared by our engineering consultant that includes cost estimates for acquisition and installation of a "Flo-Dar" meter. The report was prepared and signed by Donald G. McEdwards, a registered engineer licensed by the State of California."
On February 20, 2015, the Township received a letter from the City Manager and City Public Works Director stating:
In an effort to verify and quantify the inaccuracy of the parshall flume influent meter, the City installed two Flo-Dar meters immediately upstream of the plant that, collectively, measure the total influent contributed by Brooktrails and City residents.
The City's letter went on to explain because they had installed a new meter and observed it for a brief period in 2015 it justified that the City bill the Township for $132,171 for fiscal year 2012-13 operating costs. The matter of authorizing this bill was set for the February 25, 2015, City Council meeting.
On February 25, 2015, the Township Manager sent a response letter authorized by the Township Board stating:
"The City’s aforementioned February 19, 2015, letter reports that after thirteen years of there being no functional influent meter at the Wastewater Treatment Plant as required by the contractual Agreement between the City and the Township, there is some cause for optimism as this failure has now been corrected by the City’s installation of the industry standard Flo-Dar type radar meter. That optimism is tempered by our view that the City's sudden enthusiasm for measuring influent metered flows after a hiatus of thirteen years is not very impressive coming as it does two weeks before trial on this very issue.
"The February 19. 2015, letter is also cause for alarm as after all these long years of controversy it reflects another violation of the Agreement.
"To briefly recount the facts, in November 2014 the Council provided Brooktrails with an agenda packet in which it was reported to the Council by your staff that the influent meter installed in construction of the Headworks between 2009-2010 was designed incorrectly and constructed incorrectly and that the data from the meter was not reliable just as the data from the meter it replaced was unreliable between 2002-2010. The City invited input from Brooktrails officials regarding a solution. At the conclusion of the meeting it was reported that the matter would be on a future Council Agenda with a recommended solution.
"In response to the invitation for input, on December 3, 2014, I sent a letter to you recommending that the City install a Flo-Dar meter upstream from the existing influent meter. It appears that the City somehow approved an unbudgeted expense to install a Flo-Dar meter without bringing it back to the Council, and without complying with Section 10 of the Agreement which requires that cost estimates, specifications, and/or plans for improvements be submitted to the Brooktrails Board for approval. At this point Brooktrails officials have no idea what was installed, where it was installed, or what specifications were used. The letter refers to the new meters in the plural which indicates that more than one meter was installed. Given the significance of this issue, the City should have complied with Section 10 and should have invited Brooktrails' experts to monitor the installation.
"...Finally, officials of the Township will view any action taken by the Council at the February 25, 2015 meeting consistent with the recommendation in the staff report as what it truly would be - an ineffective pre-trial maneuver."
Another recent occurrence (which was mentioned in our website June 2014 Report) was the filing on November 10, 2014, of a new cause of action by Brooktrails related to the above mentioned taking of Brooktrails purchased exclusive wastewater treatment plant capacity. Simply, contrary to the project's Environmental Impact Report the new sewage treatment plant was designed with less capacity than the old plant leaving insufficient capacity for City customers after deducting the Brooktrails-owned exclusive capacity.
Brooktrails pointed this problem out to the City in the Spring of 2013 but was reluctant to file the action in court because if successful it would impose a moratorium on new sewer connections in the City. However, because of the new water connection moratorium ordered by the State (see below), the effect on the City would be minimal particularly since Brooktrails has suggested the new matter be combined with the existing lawsuit so that legal expenses would be reduced. And the City could address both the water supply and sewage treatment capacity issues within the same time period.
At its August 5, 2014 meeting the Brooktrails Township Board of Directors adopted a resolution expressing a concern that a large volume of partially treated sewage from the Willits sewage treatment plant is percolating directly into the groundwater in the Little Lake Valley. About 20% of this sewage is from Brooktrails homes and businesses. The concern is the potential impact on our neighbors in the Little Lake Valley who depend upon wells for their water.
Brooktrails had raised the issue in April 2013 based upon anecdotal reports and subsequent data gathered by a local state-licensed engineering/hydrogeology business showing that in excess of 100,000,000 million gallons per year of sewage entered the sewage treatment plant but seemed to disappear in the ponds associated with the plant, probably percolating into the groundwater.
You can read more about this problem and the Brooktrails effort to get it corrected here.
Related to that "missing sewage problem" was the receipt of a September 17, 2014, letter from the Willits Mayor to the Brooktrails Board President insinuating that the local engineering/hydrogeology business mentioned above at the behest of Brooktrails officials engaged in "a planned mission, attempting to lay a trap with the hope that City staff would violate its permit and accept diesel fuel mischaracterized as septage." It was, of course, not true.
The letter was written less than eight weeks before the upcoming election. The Willits-area engineering/hydrogeology business which has an unsullied reputation is providing professional engineering services to many local private clients. The City had not made the letter public. Brooktrails did not respond.
Unfortunately, the City Manager at the October 28, 2014, Brooktrails Board of Director's meeting insisted the letter be made public and that the Brooktrails Board President respond.
You can download the letter exchange as well as a review of the incident by another engineer (it is a large PDF file with functional links to state websites). As noted in Board President William's letter to Mayor Madrigal: "The Brooktrails Board is choosing to not take offense at the accusations in your final paragraph in the spirit of needed regional unity."