Activate That Abeyance! I Feel A Lawsuit Coming On.

This one’s strictly for sewer junquies who are bored with fun things like Christmas and the New Year and spending time with their families, people who have NO LIFE. This is the opening letter and Exhibit B of the Petition of the Los Osos Community Services District to request that the State Water Board activate the petition already on file with them to “vacate and set aside Order No. 00-131” the time schedule order that Bruce Buel four times testified was “unreasonable.”

This has been prepared by Mr. Gary Grimm, the mysterioso Mr. Grimm who was absent during the RWQCB’s hearings in Dec, but was described as being the expert in such matters. At the Dec. hearing, it was noted by CSD’s council that his absence was much missed during that Oh God We Have To Hurry Up And Have This Quasi-Trial RIGHT NOW OR THE WORLD WILL END EEEK! hearings. Well, now the State Board will hear from Mr. Grimm. And since this is a long document, let’s hope this Blogsite won’t crash.

Meantime, turn off your computer and go walk the dog, go to a movie, go visit a friend.

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December 16, 2005
Via email
State Water Resources Control Board
Office of Chief Counsel
Attn: Betsy Miller Jennings
Senior Staff Counsel
P.O. Box 100
Sacramento, CA 95812-0100
PETITION OF LOS OSOS COMMUNITY SERVICES DISTRICT (TIME SCHEDULE
ORDER NO. 00-131 FOR ON-SITE DISPOSAL FACILITIES), CENTRAL COAST
REGION:
REQUEST TO ACTIVATE PETITION CURRENTLY HELD IN ABEYANCE BY
FILING AMENDED PETITION
SWRCB/OCC A-1337
Dear Ms.Jennings:
The Los Osos Community Services District has authorized me on their behalf to request
that the above petition, currently being held in abeyance, be activated by filing the
attached Amended Petition for Review.
Please direct all communications in this matter to the District and to my office.
Sincerely,
Gary J. Grimm
Cc: Mr. Roger Briggs (via email) Mr. Dan Bleskey (via email)
Executive Officer Interim General Manager
Central Coast Regional Board Los Osos Community Services Dist.
895 Aerovista Place, Suite 101 P.O. Box 6064
San Luis Obispo, CA 93401 Los Osos, CA 93412
Enclosure: Amended Petition

1
EXHIBIT B
STATEMENT OF POINTS AND AUTHORITIES
PETITION OF THE LOS OSOS COMMUNITY SERVICES DISTRICT (TIME
SCHEDULE ORDER NO. 00-131 FOR ON-SITE DISPOSAL FACILITIES),
CENTRAL COAST REGION
SWRCB/OCC FILE A-1337
Table of Contents
1. Introduction
2. Historical Background
3. Order No. 00-131 Inappropriately Holds Petitioners Responsible For Actions
and Delays that Occurred Prior to the Creation of the District as a Public
Entity
4. The Project Delays That Occurred From January 1, 1999 to October 27,
2000 Were Unanticipated and Were Beyond the Reasonable Control of the
District
5. Adoption of Order No. 00-131 Was an Inappropriate and Unreasonable Use
of a Time Schedule Order
6. The Time Schedule Order Inappropriately Holds Petitioner Responsible for
the Entire Prohibition Area Rather Than Just Its Four Service Areas
7. The Amount of Potential Penalty Set Forth in Order No. 00-131 Is Not Based
on an Amount Reasonably Necessary to Achieve Compliance
8. Conclusion
Introduction
In 1983 the California Regional Water Quality Control Board, Central Coast Region,
(“Regional Board” or “Board”) adopted an amendment to the Water Quality Control
Plan, Central Coast Basin (“Basin Plan”) to prohibit the discharge of waste from
individual and community sewage disposal systems in the Los Osos/Baywood Park area,
San Luis Obispo County. In the seventeen years following that action to the Regional
Board adoption of Time Schedule Order No. 00-131 on October 27, 2000, the Regional
Board became increasingly frustrated with the failure of public entities, especially the
County of San Luis Obispo, to implement a wastewater project for the prohibition area.
The Los Osos Community Services District (“District”) was formed in early 1999 to
provide certain public services in the Los Osos/Baywood Park area, include wastewater
services. From the time of the District’s formation to the adoption of Order No. 00-131
in October 2000, the District became the target of Regional Board staff and Board
member frustration with project delays that occurred over the many years prior to the
2
District’s formation. This was apparent throughout 1999, in 2000 and when the Board
adopted Order No. 00-131 as is demonstrated below.
Despite the early history of delays, the District made significant progress in 1999 and
2000 with respect to implementation of a wastewater project in Los Osos/Baywood Park,
as was acknowledged by Regional Board staff and Board members themselves, and the
District obtained the State Water Resources Control Board (“State Board”) State
Revolving Fund (“SRF”) loan commitment for a wastewater project in the area.
However, certain unanticipated project delays occurred in 2000 that were beyond the
reasonable control of the District as is set forth below. Despite the District’s substantial
progress and the demonstrated unanticipated delays, the Water Board inappropriately
adopted Order No. 00-131.
In addition, Petitioner alleges that Order No. 00-131 is an inappropriate and unreasonable
use of a Time Schedule Order under the circumstances in the record, that the Order
inappropriately holds the District responsible for the entire prohibition area rather than its
four service areas and that the amount of penalty is not based on an amount reasonably
necessary to achieve compliance. All arguments in this Points and Authorities are based
on the administrative record of the Regional Board on October 27, 2000.1
Historical Background
On September 16, 1983 the Regional Board adopted Resolution No. 83-13 amending the
Basin Plan to prohibit the discharge of waste from individual and community sewage
disposal systems effective November 1, 1988 in the Los Osos/Baywood Park area. It
further provided for San Luis Obispo County to continue a monitoring program that
would monitor ground water quality within the prohibition area and certain areas outside
the prohibition boundaries but within the urban reserve line set forth in the resolution.
Throughout the 1980s and early 1990s the Regional Board and County sought to find a
way for the County to address the prohibition by construction of a wastewater facility.
The Regional Board adopted waste discharge requirements for San Luis Obispo County
for Bayridge Estates and Vista de Oro in the late 1980s, (Waste Discharge Requirement
Order Nos. 89-92 and 87-101) and cease and desist orders for the County for Bayridge
Estates, Baywood Park Water Division Baywood Park/Los Osos Fire District and Vista
de Oro in 1989. (Cease and Desist Order Nos. 89-93, 89-126, 89-127 and 89-128).
Consequently, for many years in the 1990s, the County attempted without success to
construct a community wastewater facility. The County’s proposed project is described
in the Board’s September 7, 1999 workshop agenda package.
In November 1998, voters adopted a ballot measure to form a Community Services
District to replace the County as the governing body for community services in the Los
1 The Agenda for the Regional Water Board meeting of October 27, 2000 contained a page entitled,
CONDUCT OF MEETING. Note F- provides that “All Board files, exhibits, and agenda material
pertaining to items on this agenda are hereby part of the record.”
3
Osos/Baywood Park area. Pursuant to Local Agency Formation Commission
(“LAFCO”) approval and voter approval of Measure K-98 (“K-98”), the Los Osos
Community Services District was formed to provide limited governmental services
within the District boundaries. As a result of K-98, the District was assigned a majority
of the zones of benefit within County Service Area-9 that were previously operated by
the County (K-98 §D).
On January 1, 1999, the newly formed Los Osos Community Services District formally
took over responsibility for certain facilities and services in Los Osos including the
wastewater facilities at Bayridge Estates, Water Division, Fire District and Vista de Oro.
The District was formed by the voters of Los Osos/Baywood Park for the purpose
(among other things) of exercising local control in seeking a solution to the community’s
wastewater problems. (Gov. C sec 61000 et seq.). Thus, the District inherited the
significant task of finding a solution for the four specific wastewater systems covered in
the cease and desist orders as well as attempting to address the problems in the rest of the
prohibition area as set forth in the Basin Plan.
Order No. 00-131 Inappropriately Holds Petitioners Responsible For Actions and
Delays that Occurred Prior to the Creation of the District as a Public Entity
During the early months of 1999, Regional Board staff conducted discussions with staff
of the newly formed District regarding possible revised plans of the District for
constructing wastewater facilities. The responsibility for the wastewater project was not
automatically transferred to the District. It was necessary for the District to make formal
decisions on that issue. (February 4, 1999 letter from Rosemary Bowker, President of the
District Board, to Roger Briggs). On May 20, 1999 the State Water Resources Control
Board (“State Water Board”) amended the State Revolving Fund (“SRF”) loan
commitment and recognized that the District had assumed responsibility for construction
of the wastewater project. (State Board Resolution No. 99-051).
At it’s meeting on May 20&21, 1999, when the District had been in existence less than 6
months and still in the project evaluation process, the Regional Board adopted Cease and
Desist Orders No. 99-53 for Bayridge Estates; 99-54 for Baywood Water Division; 99-55
for Baywood Park/Los Osos Fire District; and 99-56 for Vista de Oro. (Staff Report for
Regular Meeting of May 20 & 21, 1999). These cease and desist orders imposed
enforcement time schedules for not only the above noted District service areas, but for
completion of construction of a community sewer system for the Basin Plan prohibition
area. At the same time, the Regional Board transferred waste discharge requirements for
the four service areas from the County to the District and prescribed monitoring and
reporting requirements for the District.
It is important to emphasize that the cease and desist orders simply transferred
responsibility for previously existing cease and desist orders issued to San Luis Obispo
County (no relationship to the newly formed District) to the District. Stated differently,
4
the violations on which the newly adopted cease and desist orders were based relate to
prior years of County non-compliance and had no relationship to District activities.
On September 7, 1999 the Board held a workshop on Wastewater Alternatives for
Baywood Park/Los Osos. Prior to the Board workshop, the District provided further
information to the Board regarding the District’s progress. (August 24, 1999 letter from
Pavvo Ogren to Roger Briggs). Despite this reported progress, a substantial portion of
the staff report described the failure of the County wastewater plan and provided a
comparison of the County plan (that was no longer feasible or proposed) and the new
District wastewater plan. (Staff Report for Regular Meeting of September 7, 1999). The
report noted that the District is pursuing implementation of the project proposed by the
Solutions Group and is not moving forward with the County’s sewer project. At the
workshop, Board members asked further questions about the County plan and expressed
frustration that the County plan had not been implemented. (Board audiotape of the
workshop)2.
At its regular meeting of October 22, 1999 the Board considered possible enforcement
alternatives for the District and directed staff to amend the four existing cease and desist
orders. (Staff Report for Regular Meeting of October 22, 1999). While staff concluded
that the existing schedule appeared reasonably attainable by the District (in other words,
no violations or threatened violations were occurring), additional tasks needed to be
added to the orders. On November 19, 1999 the Board amended the four cease and desist
orders to include additional tasks with respect to circulation of a draft EIR and
submission of voter approval of an Assessment District or securing comparable method
of collection system and treatment financing. (Staff Report for Regular Meeting of
November 19, 1999).
On many occasions throughout 2000 and close to the time of adoption of Time Schedule
Order No. 00-001 in October, 2000, it became increasingly clear from Regional Board
staff and Board member comments that the District was being held responsible, not only
for their own implementation of the wastewater project, but for the many years of delay
in compliance with the Basin Plan prohibition prior to District formation in 1999. This
confirmed the evidence in the record cited above from 1999. At the Board’s July 14,
2000 meeting, the status of the wastewater project and certain unanticipated delays that
were beyond the reasonable control of the District were reported to the Water Board.
(See discussion below and Executive Officer’s Report July 14, 2000). At the July 14,
2000 meeting, Board members made comments as follows: “This has been going on, and
on, and on …this issue has just been postponed and postponed and so forth for whatever
reasons …when is this Board going to hold Los Osos to the fire, their feet to the fire…”
(Board member Taylor); and “I don’t want to see this go on another twenty-five years
that has happened in the past ….it looks like you [District] is getting into the same mode
that the County was in…”(Board member Jeffries)3
2 While a transcript of the workshop is not available, the audio tape of the workshop documents the Board
member statements.
3 As a transcript is not currently available, these quotes are taken from a videotape of the July 14, 2000
Board meeting. An audiotape is also available and is part of the administrative record.
5
At the Board’s October 27, 2000 status report and public hearing many comments were
made that continued to demonstrate that the Board in it’s consideration of the
enforcement alternatives was holding the District responsible for the prior history of
failure to resolve the wastewater issues in the prohibition area. Board member Shallcross
stated that he “feels the frustration of the other Board members, especially the ones that
have been here for many years and have seen this come before them time and time
again.” Board member Daniels stated that “I believe it’s just been years and years and
years this has been going on, certainly goes back way beyond when I got on the
Board….”4 County Supervisor Bianchi testified that it appears that the District is being
held responsible for previous agency actions. Gwynne Taylor in her testimony urged the
Board not to compare the District to previous entities. District Board member Hensley
testified that he shares the Board frustration with the failure of the prior project.
While Regional Board frustration with prior delays that occurred prior to the District’s
formation is understandable, the District cannot and should not be held responsible for
actions and failures that occurred prior to January 1, 1999. Such Regional Board action
based on these delays is an abuse of discretion and Order No. 00-131 should be vacated.
The Project Delays That Occurred From January 1, 1999 to October 27, 2000 Were
Unanticipated and Were Beyond the Reasonable Control of the District
The District filed its first quarterly status report required by the cease and desist orders
with the Regional Board on July 19, 1999. The report sets forth accomplishments since
the District’s creation on January 1, 1999 and noted that the District does not have the
financial resources of the County that previously managed the project. (July 19, 1999
letter from Paavo Ogren, Interim General Manager of the District to Brad Hagemann).
On July 20, 1999 the Board clarified what it expected to be included in the facilities
plan/feasibility study and funding plan required by the cease and desist orders. (July 20,
1999 letter from Roger Briggs to Paavo Ogren).
The District’s October 15, 1999 quarterly status report set forth recent accomplishments
and issues requiring resolution. One of the issues noted requiring resolution was site
access for hydrogeological testing work at the disposal site and geotechnical engineering
work at the treatment plant site.
By letter of December 8, 1999, the District’s consultant, Montgomery Watson informed
the Board staff of certain unanticipated project obstacles and potential delays that had
arisen for the project. (December 8, 1999 letter from Mark Ysusi of Montgomery
Watson to Roger Briggs). It was necessary for the District in its required project
evaluation to conduct geotechnical testing on the treatment plant site and additional
hydrogeological testing at the proposed disposal site. It took close to 3 months (including
Superior Court proceedings) to finalize access arrangements for entry rights with
4 As a transcript is not currently available, these quotes are taken from a videotape of the October 27, 2000
Board meeting. An audiotape is also available and is part of the administrative record.
6
property owners. This caused unanticipated and unavoidable delay in the project
schedule. In addition, the Board was informed that the process for obtaining clearance
from the U.S. Fish and Wildlife Service (“USFWS”) for drilling would also cause
unanticipated delay in the project schedule and raised significant uncertainties with
respect to the Broderson disposal site. The District’s quarterly status report of January
14, 2000 confirms these unanticipated delays. These delays necessitated the use of
certain assumptions in the technical work on the site in order for the District to meet the
Board schedule. (January 14, 2000 letter from Mark Ysusi of Montgomery Watson to
Roger Briggs).
Despite the unanticipated and unresolved delays, the District submitted the draft project
report to the Board on January 31, 2000 as required by the cease and desist orders.
(January 31, 2000 letter from Bruce Buel, District General Manager, to Roger Briggs;
Wastewater Facilities Project Draft Project Report). This Project Report was accepted by
the Board as a “timely” submittal and raised various questions. (February 17, 2000 letter
from Roger Briggs to Bruce Buel). One of the issues that was raised by Board staff was
that the plan does not provide any method for parcels within the prohibition boundary yet
outside the sewered area to comply with the Basin Plan criteria. On February 17, 2000
the District Board in response immediately amended the project to include collection of
the balance of the properties within the prohibition zone as requested by Board staff.
(February 18, 2000 letter from Bruce Buel to Roger Briggs). It should be emphasized
that this modification of the project boundaries in response to Board staff comments
raised the need for District reevaluation of various technical aspects of the proposed
project. Stated differently, Board staff requests caused additional delays in the project
implementation schedule.
Board staff presented a status report to the Board at their meeting of March 31, 2000.
(Staff Report for Regular Meeting of March 31, 2000). Staff concluded in their report
that recent actions by the District to amend the wastewater project to include communitywide
sewering “has restored staff’s confidence that the CSD can and will implement an
acceptable project to resolve water quality issues in Los Osos.” At the same time, the
District in a March 30, 2000 letter to the Board provided detailed information about the
continuing difficulties being encountered in obtaining appropriate clearance from
USFWS with respect to the biological assessment and work plan for drilling which
involved an unexpected Endangered Species Act (“ESA”) full Section 7 consultation.
(March 30 letter from Mark Ysusi to Roger Briggs). This was confirmed with additional
detail in the April 14, 2000 quarterly status report. (April 14, 2000 letter from Mark
Ysusi to Roger Briggs). The Section 7 consultation process was deemed complete on
April 10, 2000. This unanticipated work involved considerable additional time and cost
to the District.
Once the access and USFWS issues were resolved in mid-April, 2000, the District was
able to schedule the necessary hydrological testing work at the Broderson disposal site to
confirm the disposal method proposed in the County project and to determine whether it
would have adverse impacts on downhill landuses. The previous technical assumptions
implicit in the January 31, 2000 Project Report submission to the Board needed to be
7
verified. The results and data were critical for circulation of the draft Environmental
Impact Report (DEIR) and completion of the final Environment Impact Report (EIR).
This meant that the data would not be available until September 1, 2000, beyond the
dates required in the cease and desist orders for submission of the DEIR (May 1, 2000)
and the EIR ( July 30, 2000). (See April 14, 2000 letter & April 28, 2000 letter from
Bruce Buel to Farouk Ismail, State Board Division of Clean Water Program).
In view of these unavoidable delays, the District requested the Board to amend and
extend the time schedules in the cease and desist orders. (April 28, 2000 letter from
Bruce Buel to Roger Briggs). Board staff responded that staff would not recommend
extensions of the compliance schedules, as the delays “are not entirely outside the
District’s ability to control.” (June 1, 2000 letter from Roger Briggs to Bruce Buel). On
June 5, 2000 the District responded to the Board staff June 1, 2000 letter by setting forth
in detail the reasons that the delays were unanticipated and beyond the reasonable control
of the District in addition to those previously cited in the April 14, 2000 letter. (June 5,
2000 letter from Bruce Buel to Roger Briggs). Simply stated, these unanticipated delays
involved access issues with property owners, USFWS ESA Section 7 clearance, technical
evaluations of issues not previously undertaken relating to technical feasibility and safety
for downslope areas, and additional SRF requirements.
Proceeding with the DEIR and EIR in accordance with the time schedule in the cease and
desist orders without the necessary data and preparation would have resulted in probable
successful challenges to the EIR, assessment district vote jeopardy and raised possible
Proposition 218 challenges (in addition to the technical feasibility and downslope safety
issues noted above).
On May 5, 2000 the District requested the State Board to revise the timeline set forth in
the SRF Order to coincide with their revised milestones. (May 5, 2000 letter from Bruce
Buel to Farouk Ismail). Regional Board staff supported extending the State Board
commitment to provide SRF loan assistance to the District. (June 13, 2000 interoffice
memo from Roger Briggs to James Kuykendall, Division of Clean Water Programs).
The District’s July 5, 2000 Quarterly Status Report set forth accomplishments and issues
relating to the wastewater project. (July 5, 2000 letter from Stephen Clary of
Montgomery Watson to Roger Briggs). It noted that geologic exploration of the
Broderson disposal site soil structure was found to not be compatible with dry well
percolation as planned and further investigation was necessary for this site, and that it
was necessary to expand the range of potential disposal alternatives. (Hydrological
Investigation of Broderson Site, Cleath & Associates, June 2000) Thus, if the District
had proceeded with the proposed County project calling for the amount of dry well
disposal at the Broderson disposal site, significant adverse impacts on downhill land uses
might have resulted5. This delay to conduct this important technical work at the
Broderson disposal site and related areas was directly related to the unanticipated access
and USFWS delays that were beyond the reasonable control of the District previously
5 For example, the Cleath report concluded that only 800,000 gpd could be disposed of at the Broderson
site, not 3,500,000 gpd that the County project had proposed.
8
discussed. The District provided additional technical reports to the Board regarding
disposal area alternatives and capacity. (See Effluent Disposal Strategy Update,
Montgomery Watson Harza, August 29, 2000; Wastewater Issue Evaluation for Los
Osos, Cleath & Assoc, October 24, 2000; and Preliminary Review of Liquefaction
Potential in Effluent Disposal Areas, Jonathan Blanchard of CFS Geotechnical Inc.,
October 24, 2000).
The status of the wastewater project and these unanticipated delays were reported to the
Regional Board on July 14, 2000. (Executive Officer’s Report July 14, 2000). At that
time, and despite Bruce Buel’s testimony that the District was committed to expeditiously
addressing the groundwater issues, the Board directed staff to bring the matter back to the
Board at it’s October meeting to consider enforcement options. On August 17, 2000 the
State Board adopted Resolution No. 2000- 065 that extended “for good cause” the
expiration date of the preliminary loan commitment to the District.
As the October 27, 2000 status report and enforcement hearing grew near, the District
provided the Board on October 13, 2000 with another Quarterly Status Report that
provided very positive information with respect to the project. (October 13, 2000 letter
from Sarah Holmgren, Project Manager, to Roger Briggs). This Report noted,
“significant progress has been made on all major aspects of the wastewater project” and
went on to provide details. The Report stated that the dates had not changed since the last
report.
On October 27, 2000 the Board held its status report and hearing to consider enforcement
alternatives for the District and individual property owners6. The staff report stated that
the District’s “most recent evaluation of alternatives resulted in significant improvements
to the project and the CSD now proposes a wastewater project, which appears technically
sound as well as viable.” (Staff Report of Regular Meeting of October 27, 2000). Staff
testimony by Sorrel Marks supported this conclusion. However, delays due to reevaluating
alternative technologies and facility sites (which staff agreed resulted in
significant improvements to the project and were required by the SRF) and unanticipated
delays beyond the reasonable control of the District (caused by access and USFWS
complications) remained.
In addition to the evidence already in the Board record, the District provided written
comments to the Board with respect to the enforcement alternatives. (October 18, 2000
letter from Bruce Buel to Roger Briggs). This letter applauded the cooperative efforts
between District and Board staff to address the long-standing wastewater problems in the
community; noted the District’s recent accomplishments; discussed the improvements
due to project re-evaluations and the potential adverse consequences that would have
resulted had that not been done; described a safer disposal project that would not result in
damage to downslope properties; and again discussed the unanticipated delays beyond
the reasonable control of the District described above. Testimony at the hearing of Bruce
6 Despite the existence of approximately 20 other cease and desist orders outstanding for small community
septic systems in Los Osos, no action was taken on these orders on October 27, 2000 and little, if any, other
enforcement action had been take with respect to these outstanding cease and desist orders prior thereto.
9
Buel, General Manager, Rosemary Bowker, District Board President, and Gary Grimm,
Legal Counsel supported these points. District Board member Gustafson testified that the
project delays were caused by unanticipated regulatory requirements of the USFWS, that
disposal site safety issues arose and the SRF required District examination all alternatives
and issues.
In conclusion, the record adequately demonstrates that all District delays in compliance
with the time schedule set forth in the cease and desist orders were unanticipated and
beyond the reasonable control of the District and that the District made substantial
progress to implement a wastewater project.7 To hold the District accountable for these
delays by issuance of Order No. 00-131 in the face of the progress made on the project
and the unavoidable delays is an abuse of the Regional Board’s discretion and the order
should be set aside and vacated.
Adoption of Order No. 00-131 Was an Inappropriate and Unreasonable Use of a
Time Schedule Order
The Regional Board is well aware that the District is a special services district established
to provide certain public services in the Los Osos/Baywood Park area as is generally
described in the Background section above and the hearing record. Los Osos Community
Services District provides only fire protection and solid waste (garbage) services on a
District-wide basis. (Fire service by CDF/County contract and solid waste service by
franchise agreement.) All services provided by the District to its residents and various
zones of benefit (that were transferred to LOCSD as a result of K-98) are financed and
funded in accordance with the County’s historical methodology, California law, and the
limitations imposed by Article XIII of the California Constitution. In short, the District
does not collect property taxes, business tax, transient occupancy taxes, sales taxes, or
other taxes that are otherwise available to incorporated agencies (such as counties and
cities) to operate a general fund that is capable of responding to Regional Board fines.
What limited property taxes that are collected by the LOCSD are used primarily to fund
fire services.
With respect to the Fire Department, the District contracts with the County CDF to
provide fire protection and emergency services. Property taxes and special taxes and
transfers from reserves primarily fund fire protection services. The Fire Department is
not capable of responding to fines for the operation of existing septic tanks without
reducing fire protection or emergency services. Further, when considering the limited
amount of septic tank contribution from the Fire Department discharged to the
groundwater basin (approximately 1,000 gpd) and the impact that fines would have on
the Fire Department and fire services in the district, it clearly is inconsistent with the
objectives of the Water Code to imposed threatened fines on the Fire Department.
7 In addition to the Water Board staff recognition at the Board October 27, 2000 hearing of the District’s
accomplishments, Board members also recognized the District’s progress. (See hearing comments of
Board member Jeffries and Daniels – “applaud you for progress made recently”).
10
With respect to the Water Department, the District operates a water division on an
enterprise basis funded solely through rates and charges and without transfer of property
taxes. The District’s Water Department budget is further augmented by special transfers
from its reserves to meet budgeted items. Thus, the Water Department is not capable of
responding to fines for the operation of the existing septic tank without reducing the
District’s ability to maintain adequate water service to the residents that are served by its
Water Department. Further, when considering the limited amount of septic tank
contribution from the Water Department discharged to the groundwater basin
(approximately 500 gpd) and the impact that fines would have on the Water Department
and water services in the district, it clearly would be inconsistent with objectives of the
Water Code to impose threaten fines on the Water Department.
With respect to Bayridge Estates, The District provides drainage, street lighting, septic
tank maintenance and open space maintenance within this special zone of benefit as
inherited from the County of San Luis Obispo as a result of K-98. Bayridge Estate
services are primarily funded through yearly special charges that are collected on
property taxes. Additionally, a limited amount of property taxes, consistent with the
County’s practices, augment revenues collected and transfers from its reserves.
Bayridge Estates Funds are not capable of responding to fines for the operation of the
existing septic tanks without reducing or eliminating drainage, street lighting, septic
maintenance or open space maintenance. Further, when considering the impact fines
would have on continued operation of the Bayridge Estates subdivision it would be
inconsistent with objectives of the Water Code to impose threatened fines on the
Bayridge Estate zone of benefit area.
For Vista de Oro, the District provides drainage, street lighting and septic tank
maintenance to the residents of this zone of benefit as inherited from the County of San
Luis Obispo. Vista De Oro services are primarily funded through yearly special charges
that are included on the property tax bills and transferred from reserves. Further, when
considering the limited amount of contribution of septic effluent discharged by Vista de
Oro to the groundwater basin (approximately 26,300 gpd of domestic wastewater) and
the impact that fines would have on the continued operation of Vista De Oro, it would be
inconsistent with objectives of Water Code to impose threatened fines on the Vista de
Oro zone of benefit area.
In addition, and pursuant to Article XIII of the California Constitution and Government
Code section 50076, the District can only impose rates and charges that reasonably relate
to the services provided unless the affected residents impose a special tax. In other
words, the District is prohibited from using water revenues to subsidize fire protection,
sewers, street lighting, etc.
The threat set forth in Order No. 00-131 of exacting civil penalties against the Fire
Department, the Water Department, the Vista De Oro zone of benefit, and the Bayridge
Estates zone of benefit and the District for entire prohibition area will not achieve
compliance with Board orders. Penalties will affect the limited operations of the District
within the Prohibition Zone and will reduce vital services to its residents.
11
At the Board’s October 27, 2000 status report and hearing, the District repeatedly stated
to the Board that the proposed penalty in the Time Schedule Order was inappropriate in
that all of the District’s budget reserves are tied to non-sewer assessments and/or special
taxes that can only be used for the enabled purpose – fire, water, etc. Thus, a short
duration of fines could result in District bankruptcy. (October 18, 2000 letter from Bruce
Buel to Roger Briggs, p.3). The testimony at the October 27, 2000 Board hearing of
District Board President Bowker confirmed the special nature of the District. She
testified to the effect that only very small amounts of money are not mandated for
specific purposes – the District does not receive sales tax revenues. She noted that the
legal nature of the District is significantly different from the County
At the time of the Board status report and hearing on October 27, 2000, State Board
Resolution No. 96-030, Water Quality Enforcement Policy (“Enforcement Policy”) – as
amended by State Board Resolution 97-085, was in effect. This Enforcement Policy
provided policy and guidance for State and Regional Board enforcement activities. The
Enforcement Policy and Guidance provided that the level of regional Board response to
violations contained in prohibitions or enforcement orders, and whether that response is a
formal enforcement, should depend on the degree of discharger culpability,
environmental damage, independent action by the discharger to correct the violation, etc.
(See Guidance to Implement the Water Quality Enforcement Policy, April, 1996.). The
District, without repeating the facts set forth above, strongly believes that the District has
little culpability, environmental damage is limited during the District’s watch, and actions
taken to correct the violations during the short time that the District has been in existence
demonstrates that the District has stepped forward to address the wastewater problems,
not only in its own service areas, but with the intention of addressing the issues in the
larger prohibition area as well.
The Enforcement Policy and Guidance does not refer to Time Schedule Orders as one of
the listed types of enforcement actions available to regional boards. The only reference
is with respect to violations at state or federal facilities where a regional board may issue
a time schedule order against a federal facility. (Enforcement Policy Guidance, p.13).
While a Water Code section 13308 Time Schedule Order can be issued under appropriate
circumstances for cease and desist order violations, the District sought a more
collaborative enforcement solution at the October 27, 2000 hearing – amendment of the
cease and desist order or no action.
Given the community services nature of the newly formed special District, the significant
progress and accomplishments achieved by the District from its formation in January,
1999 to October, 2000, the unanticipated project delays that evidence in the record
demonstrate were beyond the reasonable control of the District and the Guidance provide
in the State Water Board Enforcement Policy, it was inappropriate and an abuse of
discretion for the Regional Board to adopt a Time Schedule Order based on this
administrative record.
12
The Time Schedule Order Inappropriately Holds Petitioner Responsible for the
Entire Prohibition Area Rather Than Just Its Four Service Areas
As previously stated, Cease and Desist Orders No. 99-53, 99-54, 99-55 and 99-56
imposed time schedules not just for the Bayridge Estates, Baywood Water Division,
Baywood Park/Los Osos Fire District and Vista de Oro service areas, but for completion
of construction of a community sewer system to address the Basis Plan prohibition
adopted by the Water Board on September 16, 1983.
The District in its letter to the Board on October 22, 1999 noted that while it has
undertaken to implement a wastewater project with the intentions of addressing
wastewater disposal for the entire community affected by the basin prohibition set forth
in Board Resolution No. 83-13, it only owns and operates the facilities addressed in the
four cease and desist orders. (October 22, 1999 letter from Rosemary Bowker, President
of the District, to Russell Jeffries, Chairman of the Water Board). The District has been
clear on this issue from the outset with the Board. The discussion above sets forth the
nature of these four service areas.
While the District has voluntarily stepped forward with the intention to implement the
project, it can only be held responsible as a “discharger” under Board enforcement orders
for the four service areas noted above. Water Code §13301 applies to persons discharging
waste and, thus, the District can consequently only be held accountable for those four
services areas over which it has control and from which it discharges wastewater. The
intention to implement a wastewater project doesn’t make the District a discharger.
As previously stated, the District submitted a draft project report to the Board on January
31, 2000 as required by the cease and desist orders. (January 31, 2000 letter from Bruce
Buel, District General Manager, to Roger Briggs; and Wastewater Facilities Project Draft
Project Report). This report was accepted by the Board as a “timely” submittal and raised
various questions. What is critical to note at this point about the submission of this Draft
Project Report is that it would have addressed the wastewater disposal issues at the
District controlled four service areas where it admittedly was discharging waste.
However, Water Board staff response was critical of the Project Report in that it did not
provide a method for parcels with the broader prohibition area yet outside the sewered
area to comply with the Basin Plan criteria. (See February 17, 2000 letter from Roger
Briggs to Bruce Buel). In response to the Board staff concern, the District modified the
project to address the concerns adding significant time and technical reevaluation of the
project. Stated differently, a proposal that would have addressed the disposal concerns in
the four District service areas was reject by Board staff in favor of a project that would
sewer a larger area – Board staff added project requirements that in itself extended the
necessary time schedule for the District to comply with Board orders.
The District in its October 18, 2000 letter to the Board pointed out that the four cease and
desist orders before the Board in the hearing regulate discharges to only four small
service areas, which constitute less than five percent (5%) of the prohibition zone. (See
the description of the service areas described above and the October 18, 2000 letter from
13
Bruce Buel to Roger Briggs, p.4). This was confirmed in the October 27, 2000 hearing
testimony.
In conclusion, the District can only be held responsible in a time schedule order for waste
discharges in the four service areas which it maintains and controls, not for the
implementation of a wastewater project for the entire prohibition area. Further, the
rejection by the Board of a solution that would have resolved wastewater issues in these
four service areas substantially contributed to the time schedule delays. In conclusion,
adoption of Order No. 00-131 was an abuse of the Board’s discretion in holding the
District responsible for compliance in the entire prohibition area.
The Amount of Potential Penalty Set Forth in Order No. 00-131 Is Not Based on an
Amount Reasonably Necessary to Achieve Compliance
In the District’s October 18, 2000 letter to the Board, the District emphasized that a
proposed per day penalty of $10,000 was far more than the amount necessary to achieve
compliance in the four service areas – that construction and of treatment and disposal
works at each site would result in a much smaller capital cost than the facts that Board
staff were using for their staff report calculations.
The Board, in imposing a potential penalty of $10,000 per day of violation, imposed the
maximum potential penalty provided by law. Was this maximum amount of potential
penalty really appropriate for a) a small community services district (this is not a large
POTW), b) that had only been in existence for eighteen (18) months c) that was seeking
to address a community wastewater problem that had been a Basin Plan prohibition for
seventeen (17) years? The petitioner thinks not. The record provides evidence of
substantial accomplishments in its 18 months of existence. Testimony was provided at
the October 27, 2000 hearing that the District and the community was already well aware
of the need to address the wastewater problems addressed by the cease and desist orders
and the Board involvement over the years. The Board’s cease and desist orders already
provided significant enforcement and penalty leverage for the Board if needed. It simply
was not necessary to “hit the District over the head” with this order in order “to achieve
compliance”.
Conclusion
In conclusion, this small community services district diligently sought to address
wastewater disposal problems that existed in the community for many years prior to its
formation as a public entity. Many accomplishments were achieved from January 1999
to October 2000. We believe that the administrative record clearly demonstrates that
adoption of Time Schedule Order No. 00-131 was in inappropriate in the following
respects: 1) The Order holds the District responsible for delays that occurred prior to the
District’s formation; 2) The Order fails to account for the fact that the unanticipated time
schedule delays were beyond the District’s reasonable control in that they were caused by
further Regional Board staff requests, the need to do additional critical project technical
14
evaluation, access issues and lengthy requirements of the USFWS; 3) That the Order is
an inappropriate use of a Time Schedule Order; 4) That the Order holds the District
responsible for the entire prohibition area rather than just the four service areas that it
maintains and controls; and 5) That the amount of potential penalty is not based on an
amount reasonably necessary to achieve compliance.
Consequently, petitioner contends that adoption of Order No. 00-131 by the Regional
Board was arbitrary and capricious and an abuse of Board discretion. The District
respectfully requests that the State Board vacate and set aside Order No. 00-131.
December 16, 2005
Respectfully submitted,
Gary J. Grimm

Calhoun’s Can(n)ons The Bay News, Los Osos, CA
December 21, 2005

Solstice Nights, Sloughi Dreams

It is only with the heart that one can see rightly: the essential is invisible to the eye.
Antoine de Saint-Exupery

I am sick of them, the hairy-faced men with dead eyes, bombs strapped to their bellies, murdercide on their minds and dreams of sex with 72 virgins their pathetically limited vision of Paradise. They are an insult to God.

I am sick of them, the cool-eyed liars in thousand-dollar suits, public servants who have sold their souls for $7,200 French commodes and golf trips to Scotland.

I am sick of phony “Christians” once again playing the political victim card in the annual faux Christmas Culture Wars. No reputable historian or biblical scholar believes Jesus was born on December 25th. It is a phony war over a phony date for a wholly invented phony Holy Day.

I am sick of all the silence and apathy and lack of accountability. I am sick that the West Point Honor code – A cadet will not lie, cheat or steal. And will not tolerate those who do – has apparently gone missing from the national psyche. From my Beloved Bangladesh By the Bay to Sacramento to Washington, D.C. and back again, I am sick of all the dark ugly sleaze, lies, threats, collusion, slippery back-room deals, and cover-ups perpetrated by a hackocracy of kleptocratic bunglers and arrogant cheats. It’s one long litany of cynical “Chinatowns.”

Standing at the window and watching as the winter’s dark stars wheel into view, I do not know whether the Noah Crosses of the world will continue to prevail, their dark rule made possible by a failure of courage by all those who repeatedly turn away from the hard challenge offered by a small child’s birth two thousand years ago. Or whether the Great Wheel is on the move and will once again bring disinfecting light, balance and the restoration of some measure of justice to a weary world.

Behind me, the Christmas lights gleam, the brave nutcrackers are once again on guard. My robe is warm against the early morning chill but cannot change my cold musings.

Then, The Mighty Finn’s wet greyhound snooter touches my hand. It is always a grounding reminder that despite the darkness, the world is still a place of wonder and miracles, a place where a small puppy thrown away for dead was saved by greyhound rescue angels and given a new life, a place where dog cookies can magically appear out of a ceramic jar, and squirrels can occasionally fall from trees.

“Sloughi, Sloughi, Sloughi,” I whisper into his soft ears. The enchanting hiss of the sibilants causes his tail to begin a waggish rotation. Sloughi, the whispered prayer to the Dog Gods of the Desert, that this time they will hear and will allow the awaited puppy’s soul to fly from the North African Deserts to the kennel in Iowa for a spring birth. And from there, Inshallah, a small representative of the prized hunting hounds of the Berber tribesmen will arrive in Los Osos, all wobbly knees and elbows, to join the pack.

The Basenjis will greet the leggy newcomer with rolling, exasperated eyes and exchange gleeful, evil grins, anticipating the lessons they’ll impose on the newbie, while Finn and Archie will greet the new wind runner with tails circling like great propellers. As for Poor Lady Emma, the royal whippet down on her uppers and forced to live in a house of thugs and loopy hugger-muggers, she will endure with her soft patience.

And once again a new year may begin with a new life ready to piddle on the floor, dig holes in the sandy back yard, race with a new family in the dog park, and spend a puppyhood sniffing the sweet chaparral of a California spring.

“All time spent angry is time lost being happy,” goes the old Mexican proverb. That is the Lesson of the Dogs, the Lesson of the Dark Solstice Night, with its bright stars and the promise of dawn, the Lesson of the Great Wheel, circling. It is also the vital Lesson that all days are Holy Days. And that, ultimately, is the real, eternal Lesson of the Heart.

Who Took The Water Out Of The Regional Water Quality Control Board?

I was able to attend the December 1st meeting of the Regional Water quality Control Board’s hearing in SLOTown, but had to work the next day and so missed day two. Happily, the whole thing is on videotape, so I was able to get a copy and watch it and something struck me forcefully after hours and hours of viewing: Not one person on the Board or Staff said, “You folks (the CSD & Los Osos) have run into a rock on the road. How can we help you get this project going in a direction the community will accept so we can solve the wastewater and water problems you’re facing?”

Now, CSD Chairpersonage, Lisa Schicker, brought that up. So did several other CSD Board members and members of the community, as in “The community has voted, for the first time it was clear during public comment on Blakeslee’s “negotiated deal that wasn’t negotiated” that the community was really starting to (grudgingly) come together, work on this deal, move this plant out of town and get going and we need your help to do that.”

But the RWQCB was having none of it. What they spent the whole time doing was finding out what assets the community collectively owned so they could extract as much money therefrom as possible. Not one peep about problem solving to get a derailed and divided community back on track to solve their water and wastewater problems in ways the majority of the community could accept.

Nope, no interest in . . . water. What keenly interested the Regional Water Quality Control Board for two days was . . . finding money.

An On Site First

Anyone interested in a first for on-site sewer systems, please go to www.courant.com There's a story, "State Agrees to Sewer Alternatives," Decision Means Users, Not Town, Will Pay For Sewage Systems," ;by Claudia Van Nes, Courant Staff Writer, Dec 17 2005

Seems Connecticut has agreed that ". . . Old Saybrook [ 1,800 properties] will be the first decentralized wastewater managment district .. ." in the state. "Such new technology includes 'aerobic systems, recirculating trickling filters, attached growth, suspended growth and combinations thereof," said Steve luckett, the town's water pollution control authority coordinator.

Most of the properties which will now install on-site wastewater treatment systems, are beach communities near Long Island Sound formerly using septics.

Sound familiar? Well, read all about it.

How Much Is That Doggie In The Window? Too Much.

If you’ve been following the recent story in the Tribune regarding the huge number of “purebred” dogs rescued from someone who might be referred to as either a “rescuer” or misguided “collector,” depending, here’s a few of my thoughts on the matter :

* No ethical, reputable dog breeder would ever, ever allow his dogs to be sold in a pet store. Never. Ever. So, now, ask yourselves, just where do pet stores get their doggies? Right. You will also very likely pay MORE for a pet-store “purebred” dog than you will pay dealing directly with an ethical, reputable breeder. So, why on earth would you want to do that??

* Ethical, reputable dog breeders always put their dogs on spay/neuter contracts and agree to either take the dog back for the life of the dog or work with the owner to get the dog properly re-homed via a recognized breed-rescue group, should the owner be unable to care for the dog. I know of no pet store that offers the same deal.

*According to an ABC World News Tonight report featuring an interview with one of the American Kennel Club’s top inspectors, at least 50% of the AKC registration “papers” sold by the AKC are phony. Worse, the AKC knows it. Even funnier, to try to avoid being jailed for massive mail fraud, the wording of the “papers” has now been finessed to the point where the paper doesn’t warrant anything about parentage, pure-bredness, health or anything else. In short, if you think that “paper” means something, you may end up paying big bucks for a spavined, genetic wreck of a dog from a filthy "puppy mill" that may or may not even be purebred, and you’ll send in additional money to the AKC for a piece of paper that may mean nothing, so don’t be blinded by the words, “AKC papers.” It guarantees and warrants nothing, not even that the dog is “purebred.” Indeed, anybody can put “AKC papers” on mutt puppies from the pound and sell them for big bucks. It’s incredibly easy.

* Before you even consider getting a dog, do you homework. A Google search on each breed of dog will turn up tons of information about that particular breed and its characteristics. Doing your homework on the front end will save you money, mo’ money and even mo’ money and heartbreak on the back end. Match your needs and temperament to the characteristics of a particular breed and you’ll end up with a win-win. Ditto for mixed breeds from adoption shelters.

* Make sure you have the time, temperament and real desire to make a dog an active part of your life for 15 years. Dogs are NOT impulse purchases, they are NOT vanity accessories, they are NOT some household accoutrement, they are NOT image aids for your missing machismo. If you like the idea of a dog without all the hassle of actually having a real dog, get a stuffed dog or a large ceramic dog to stick on your hearth. But don’t get a real dog.

The sorry fact is that too many people are guilty of Walking While Stupid when it comes to dogs. The result is millions of fine animals suffer and die needlessly every year. Consumers pay big time for this waste. The dogs pay with their lives.

The Perils of Sewerville Sue, The Sweet Flower of the West, Part 1.

You must pay the rent! Eeeeeee, I can’t pay the rent. You must pay the rent! Eeee, but I can’t pay the rent! Bwa-hahahah, I’ll have the rent, my pretty!

Oh, Dear. Sewerville Sue,The Sweet Flower of the West, is tied to the railroad tracks and, what’s this? Yes, it’s a train a-comin’ in the form of the State Water Board’s demand that Los Osos repay $6.5 million in State Revolving Fund money by 3:30 p.m. today. Oh, what shall our dear girl do?

Well, if it were me, I’d grab my attorney and head into bankruptcy court to have a judge take a look at the original loan because, being amazingly stupid, I’m really, really having a tough time figuring out how in the world that loan (which also involved federal monies as well and so has to follow a slew of federal rules and regs regarding its disbursement) ever got to this town in the first place.

Please consider:

I go into my local bank and sit down across from Mr. Prudent Banker Guy and say, “Gimme a hundred million dollars because ah’m gonna build me a hundred million dollar house.” And Mr. Prudent Banker Guy says, “Sure, whatta ya got for collateral?” And I say, “Well, nothing except I got this old beat up Honda Civic. Got 125,000 miles on her.”

And Mr. Prudent Banker Guy says, “Well, how will you pay the loan back,” and I say, “Waaaalll, I got my job and I’m also fixing to rent out a couple of rooms of my hundred million dollar house once it gets built .” And Mr. Prudent Banker Guy says, “Uh, is the location zoned for that?” and I say, “Uh, not really, and I do have a slew of my neighbors suing me right now over that plan, but heck, pay no attention to them. They’re just a bunch of looney-tunes.” And Mr. Prudent Banker Guy says, “Well, in that case, SURE THING! NO PROBLEM! You can repay the loan once you get the house built and those rooms rented out,” and hands me a couple of suitcases stuffed full of the long green.

So, a few years go by and I find out that all the bids to build the house are 50% over estimate so I accept the bid contracts anyway and go back to see Mr. Prudent Banker Guy and say, “Gimme forty million MORE dollars. I ran into a little cost overrun there. Oh, and by the way, the stockholders of my company are fixin’ to vote in a few months to decide whether to downsize the company I work for and put me out of a job.” And Mr. Prudent Banker Guy says, “SURE THING! NO PROBLEM!” and hands me another couple of suitcases stuffed full of the long green.

Which I proceeded to pound into the ground as fast as I possibly could before – yep, you guessed it – the stockholders voted and I lost my job.

And now – NOW?? -- Mr. Prudent Banker Guy’s whining that he can’t work with me on a compromise deal concerning changing the site for my house because the money he gave me was public money and he has a responsibility to the taxpayers to safeguard all the loans he makes, to make sure they’re secure and prudent and now suddenly he’s worried that I might not be able to pay it back so he’s gonna kill the whole amended deal I thought we had negotiated and demand the money back, including the millions I pounded into the ground as fast as I could before losing my job? I mean, what’s up with that?

Yes, methinks a bankruptcy court would have a fine time with this whole deal. Of course, the CSD could sell the Tri-W site (It was totally pounded into a big mess by the recalled-3 CSD majority only weeks before the election, so it’s already been trashed vis a vis its ESHA requirements, which might make it a dream for any developer – pay a cheaper price for it since its been rezoned from residential to “industrial” and its ESHA has already been broken) and the Broderson (greenbelt) disposal site, which is really, really protected habitat so the cost to put houses up on that hillside would carry a steep development price, but they’d also command big, big bucks once built. Oh, what to do?

Well, stay tuned. The Perils of Sewerville Sue are just getting underway. Will the train arrive before some guy in a white hat gallops up on his trusty horse, Ralph, to save the day?

On a more serious note, there was a letter to the editor this morning from someone in Atascadero that perfectly illustrates one of the most serious problems this issue faces: How to get real, true, actual, FACTS to the public instead of spin or just plain wrong information. The author states, “While people debate about a better location to place the plant, the level of nitrates in the groundwater continues to rise.” According to the 2005 Cleath & Associates groundwater studies, this is simply not so. The levels have stabilized and in some cases are dropping. Yet our Tribune reader in Atascadero “knows” that the nitrates are “rising.” Just like people “know” that millions of gallons of sewage are running into Morro Bay from all Los Osos septic tanks, and etc. Now, where do you suppose those folks could have gotten all that “knowledge” from? Letters to the Editor, filled with misinformation? The Tribune’s own often muddled and context-missing stories? Local TV? Comments made by the Regional Water Quality Control Board’s staff?

One of the most disturbing things I saw at the Dec 1, Regional Water Quality Control Board’s hearing was a staff member, under oath, giving a presentation to the Board and using out of date data on his slides. The result was the Board, which is charged with making some serious decisions affecting real pocketbooks and real lives, was left with a totally misleading picture of the nitrate/water situation in Los Osos. Later, when CSD Engineer Rob Miller presented the up-to-date data from the 2005 Cleath & Associates water study, you could tell at least one Board member had figured out he’d been deliberately spun by his own staff. Not good. Especially since the RWQCB’s staff had the 2005 study in hand well before the meeting was even set so there was absolutely no excuse for what happened. More embarrassing, the RWQCB’s executive director, Roger Briggs, who knew better, was sitting right next to our mis-informer, yet said not a word.

And that, of course, is the perennial problem. How do you inform people when media, elected officials, regulators, etc. are busy mis-informing them? And what can you do with people who refuse to get informed, but simply latch onto a handy myth because it’s simple. Nationally, we’ve seen an administration that has artfully and repeatedly used conflation to mislead the nation as to the 9/11 – Iraq connection. So artfully was that megaphoned via various news media that even today it’s taken on the style and form of an Urban Legend, with a good sized percentage of people still firmly believing it.

Ditto with the Urban Myths and opinions pretending to be Facts that continue to swirl around my Beloved Bangladesh By the Bay. I have said before and will say it again: The wastewater/water issues aren’t rocket science. But solving the issues absolutely depends on clarity, honesty and accurate information – no spin, no hype, no urban myths, no hokum, no egos, no hidden agendas, no happy ad sloganeering. Just the facts. They’ll be complicated (and simple) enough without the hooey.

RATS? STINKY FISH? IT'S SCRATCH 'N SNIFF TIME!

Yep, Ron Crawford's taken a look at all the State Water Board's emails and taken a stab at just what that State Water Board's Non-Negotiating Negotiating Team may had been up to when they came to SLOTown for a week. Read all about it a www.sewerwatch.blogspot.com

Look! There's a lawyer in my soup!

For folks who have been as puzzled as I have been about the various lawsuits being settled here in Sewerville (We put the sue in Sewer!), the following was an email from Julie Hayward Biggs of Burke, Williams & Sorensen describing some of the cases recently settled and the rationale for settling them.

As interim-attorney for the CSD, Mr. McClendon already explained at a recent CSD meeting, the principle of prudence, probabilities and the idea of "first of all, do no harm" also applies to law as well as medicine. Clearly, the Hideous Los Osos Sewer Project has been plagued with lawsuits. And those will continue to happen. Indeed, if I'm not mistaken, former board members Hensley and Gustafson's group have filed another suit against Measure B, which the CSD will be required by law to defend. (Their first suit was tossed out because the judge ruled that they had no standing at the time.)

At a CSD meeting some time ago, one wag noted, "Lawsuits are a way of saying, 'You have a bad project.'" Alas, I suspect he's right. Lawsuits can be frivolous, or they can be a way of saying, "Bridge out. Slow to 60." Elected Boards (and just plain folks) who sue and/or are sued, are faced with the sometimes difficult task of discerning one from the other.

And ignoring the serious warning bells signaled by a lawsuit is done at a community's peril. As example, I give you poor Los Osos and its Sewer Train Wreck caused when the recalled CSD board majority didn't stop and get the questions about the "missing" Proposition 218 matter settled before pounding gazillions of dollars of state loans into the ground.

And for those who are complaining about legal costs, they should keep in mind that even if the recall and Measure B had failed, all of the cases recently settled would have been alive and well and if they had prevailed, would have cost the (previous) CSD waaaaay more money in the long run.

Like betting on the ponies, legal decisions often come down to a matter of weighing the odds. More important, like playing the ponies, anyone thinking about suing had better seriously consider whether or not they can afford to lose -- big time. Hence, mediation and settlement are almost always the most prudent course of action. As good old Dr. Phil says to warring spouses: You can be right or you can be happy. Take your pick.

In law, as in life, Pyrrhic Victories abound.

A.C.

December 14, 2005
VIA EMAIL TRANSMISSION
Ann Calhoun
Los Osos, California

Re: Payment of Legal Fees
Dear Ann:

In light of the various comments and concerns expressed by some members of the Los Osos community, we thought maybe some further information regarding the payment of legal fees to our firm would be helpful.

As you know, we represented CASE and CCLO on a pro bono basis starting in February of this year. We initially offered to assist in the preparation of an initiative measure and our involvement grew from there.

Both CASE and CCLO received free legal services as we worked to stop construction of the sewer at the Tri-W site. In addition to preparing Measure B, our efforts included picking up a lawsuit that another law firm had filed. The other law firm abandoned the client just prior to a major hearing and refused to pursue the matter unless legal fees to that point were paid in full. We had about a week to jump in and keep the action live, with no assurance that we would ever get paid.

That case became the 4/5 vote challenge that delayed the award of bids and the notice to proceed until July. The case was live and subject to appeal until settled. Had the board not settled we would have pursued that action on appeal and incurred more fees on our side. The CSD would also have incurred more fees to defend against such an appeal.

We also filed a CEQA action relating to the staging sites that had never been reviewed in the original EIR. That case was live and proceeding prior to settlement. In August we filed an action in Sacramento in an attempt to prevent disbursement of SRF funds. While that action failed to accomplish that goal, the underlying action for waste of public funds was entirely viable and active prior to settlement. Finally, we also picked up another case from prior attorneys relating to illegal dumping by the CSD. That case was in the early stages of discovery and would have led to substantial legal fees had it not been settled. All of those cases would have led to substantial additional costs together with significant risk of loss if they had not been settled.

Then of course, there was the Measure B case in which the CSD filed an action to keep the initiative off the ballot. We won that one outright. While the ruling at the local court was before the Court of Appeal for hearing, the only matter open in that case was an order for the lower court judge to show why the ruling should not be overturned. The judge had declined to appear in the matter and the election had already been held. We had clearly won and were entitled to fees under the law.

It is important to note that even if Measure B had been defeated at the polls, we still won the case and were entitled to fees.

By any standard, we provided substantial and beneficial legal services to our clients CASE and CCLO at no cost to them, and in doing so, we protected fundamental rights of the people.

Pro bono litigation is only "free" to the client. It is always undertaken with the understanding that if the litigation is successful - as it was for CASE and CCLO - the attorney will seek fees from the other side. In fact, the law encourages attorneys to step up in situations like Los Osos to assist the people in situations like this by providing a means for the attorneys to be paid.

We understand that Mr. Margetson, for example, was provided pro bono legal services by The First Amendment Coalition on a referral from us when he was sued by then Directors Gustafson and LeGros. His lawyers now are seeking, and almost certainly will be awarded nearly $20,000 in fees for the short term work they did for him. It was "free" to him, but it won't be free to his adversaries.

In CASE and CCLO's lawsuits, the adversary was the CSD and the CSD is therefore responsible for payment of fees.

The law provides for legal fees to be awarded in cases brought by individuals and groups who attempt to vindicate public rights. The public policy here is to encourage lawyers to take on cases that address public issues. In settlement negotiations, we agreed to limit our fees to reduced rates that we ordinarily charge only public agency clients in order to settle these cases quickly. We wanted to get this stuff behind us so we could be part of the solution to the problems in Los Osos.

In real dollar terms, we could have charged between $350 and $500 per hour instead of the $200-225 that we settled for. In addition, we would have been entitled to a multiplier of 1.5 to 2.0 on the Measure B suit and potentially on the remaining cases. That means that instead of fees amounting to $500,000, we reasonably could have demanded something around $750,000 to $1,500,000 or more.

The CSD spent more than $600,000 to defend these actions as reported by the previous Board. The Board would have had to incur substantial additional fees to fight the actions that remained outstanding after the election had the cases not settled. A quick settlement ended the risk and stopped the bleeding.

In addition to limiting our fees to only our public agency rates and foregoing any multiplier, we have agreed to accept payment over 12 months, interest free. That fact has been omitted from news coverage of this matter.

Finally, the entire drafting of Measure B was done at no cost and \was not incuded in the lawsuit fees. We spent abouit 75 hours or so on that project alone and have written off the entire fee for those services which amounted to about $20,000. We were also directed by our clients to assist the CSD in anyway possible after the election to assure the relocation of the wastewater facility. We did so after our settlement billing cut-off date of November 15, 2005, and prior to being retained by the CSD on November 23, 2005, on the four outstanding cases. That effort amounted to about an additional $16,000 in fees that will never be collected.

We took on this challenge because we believed it was the right thing to do. We carried all expenses of the legal challenges for close to a year with no reimbursement. We are carrying the bulk of the settlement interest free for the next twelve months. We are continuing to provide 24 hour legal services to the CSD in the face of serious doubt that the CSD will have the funds to pay us in the future. We are committed to seeing this issue through and getting Los Osos on track.

One last thought. We took on this challenge knowing that unless we were successful, we would get nothing. That was a serious risk.

We agreed to take that risk because we believed in the righteousness of the cause and we recognized that the people of Los Osos needed our help. We stepped up when no one else would and when others had abandoned the community. We gave Los Osos our full and unlimited effort, trusting in ourselves and the people of Los Osos to succeed.

But for our involvement and the legal challenges we mounted, construction at the Tri-W site would have begun in April and there would be no turning back now.

I think we know what "pro bono" means.

Very truly yours,
BURKE, WILLIAMS & SORENSEN, LLP
Julie Hayward Biggs

And Now, For Another Take from Lawsuit City . . . We Put the Sue in Sewer!

The following was excerpted from a letter from Pam Ochs, head of LOTA, and edited by me with permission. Any comments I edited were not related to clarity, context or fact. I’m posting it here because in the recent coverage on various lawsuit settlements, the Tribune has muddled a whole lot of different lawsuits together, so I think the reader may have the idea that they’re all one big jumble, instead of separate, discrete suits dealing with some very, very different issues.

That a missing Proposition 218-type vote was of concern to the State Water Board was obvious since it became one of the critical “requirements” in their “negotiated deal” that wasn’t, of course, “negotiated.” The lack of an assessment vote to secure the State Revolving Fund loan remains a critical missing issue on the way this whole sewer loan was set up and run in the first place. And it’s puzzling to me that the SWB would have released monies to the CSD when they knew a court case was in the pipeline, a court case that could cause that money and/or the entire loan itself to be placed at risk. (For more on Prop 218, visit Steve Page's blog at his blogsite -- linked via the Newsmission home page.)

While the LOTA case was among those settled . . . [CORRECTION; According to Pam Ochs, LOTA has NOT settled their case. The cases settled already include the Measure B case and the CCLO's cases. The LOTA case (represented by Parker/Hawley in Cambria) will be discussed with the CSD attorneys in closed session on Thursday, Dec 15th. If a settlement is offered and accepted, fine. If not, there will be a preliminary scheduling conference on Friday morning in Judge Hilton's courtroom. In any case, I’m sure the issue remains in play and may end up being investigated and/or litigated and decided in the months to come.)

Ms. Ochs [edited] letter:

The Los Osos Taxpayers Association filed a suit on July 22nd with causes of action against the (old) CSD board because they didn't abide by Proposition 218 (The Right to Vote on Taxes Act) AND against the SWRCB for misuse of public funds for knowingly, purposefully granting the illegal loan in the first place.

Then LOTA filed a TRO (rejected by [Judge] Hilton [ . . . ]. After that, LOTA filed an appeal in Ventura on the TRO to stop the trees at Tri-W from coming down and destroying the ESHA.

But what did the SWRCB do? They disbursed the first installment of the loan in the middle of the TRO appeal and let the Tri-W site be destroyed knowing that Prop. 218 wasn't followed. They knew that because it was in the courts with their admission that there was no dedicated source of revenue to pay the loan back.

The Tribune has never once mentioned (in their almost daily articles on the sewer promoting the mega sewer at Tri-W) LOTA's lawsuit, the TRO, or TRO appeal. And that the voters of Los Osos were never given their Constitutional right to vote to pay back the mega loan on the mega sewer. The Tribune (and the media in general) just doesn't want to let the public know that Los Osos voters weren't allowed to vote by the (old) CSD or the State Water Board -- on millions of dollars of federal money. [ . . . . . . ]I find it extremely interesting that Prop. 218 has never been written about -- not one word. [ . . . . . . ]

But it sure has been mentioned a lot at CSD meetings, at the SWQCB meetings, and at the Regional Board hearing on 12/1 and 12/2.[ . . . . . . ]

Even KSBY and KCOY [ . . . . . . ]have never mentioned that Los Osos never had their Constitutional right to vote before the SRF loan was signed and money disbursed. If they did, well, that would be "news" in itself. [ . . . . . .]

[in Pam’s opinion] The SRF loan is void, and the Regional Board's fines are tied to the SRF loan, so the fines also should be void. Every deal connected to the illegal loan is void. Therefore, all the work done so far (contractors, engineers) also should be void. [ . . . . . . ]

It's past time for the FBI to investigate "Abuse of Power" by runaway boards -- old CSD, Regional, State. [ . . . . . .]

Best regards,
Pam Ochs
PresidentLos Osos Taxpayers Association

Oh, and did I forget to mention . . . .?

Then there's this morning's Tribune headlines, "Water board didn't intend to negotiate, records show."

Gosh, how shocked are we at that? Seems that the Tribune requested and got all kinds of emails and documents sent among various State Water Board staff and board members and we're shocked -- shocked! -- to learn that Sam Blakeslee was sent on a fool's errand along with Darrin Polhemus from the SWB. There were no "negotiations."

Ha-ha-ha, said the State Water Board's Executive Director Celeste Cantu, who must have been snickering up her sleeve when she wrote that "Darrin did a very good job, bringing the CSD closer to reality." Oooo, Wrong. Dead wrong, Ms. Cantu. Darrin's spending a week doing whatever those folks were doing in that room, -- playing Monopoly? -- took the CSD further away from "reality."

Even sillier is the State Water Board's media-guy, Bill Rukeyser now saying that the heading of the letter signed by Ms. Cantu -- "Agreement for Structured Negotiations" -- didn't mean anything. The wording was just "bureaucratic convention."

You know, just like --"agreement" or "structured" or "binding arbitration," or "abide by" -- and all those other annoying, meaningless words that often appear in legal contracts. Oh, wait, silly me. I forgot. The word "legal" is also another one of those little "bureauctatic conventions" that can be ignored when convenient.

On the up-side, these documents, beside showing the arrogance and ethical bankruptcy of the the SWB and staff, should be a wonderful wake-up call to any governmental agency in the State of California who is or is thinking about doing business of any kind with the State Water Board.

Before you sign anything that looks even vaguely "legal," you'd better hire former President Clinton to parse just what the SWB means by "is." And, of course, the word "negotiate."

Forget about trying to parse the meaning of the word "in good faith." Nobody should ever again be fool enough to associate that word with the State Water Board.

HOLY COW. TIME TRAVEL COMES TO LOS OSOS! QUICK, WATSON, BOOK ME A FLIGHT!

Ah, yes, Holiday Time here in Sewerville. The stockings are hung with care, the mice are scurrying about, things are in the wind or hanging out to dry or running for cover or moving to France or something.

The State Revolving Fund Loan went bye-bye for now. This may be A Good Thing since trying to twist into knots to preserve that loan involved so many tangles to the whole Tri-W plan that cutting free MAY allow the community to get that millstone from around their necks so they can start looking seriously at alternatives. In other words, evidence first, verdict later instead of vice versa.

A whole bunch of lawsuits filed against the previous CSD Board have been settled, thus clearing the decks for -- no doubt -- about a jillion more to come. The Tribune story concering same fails to note just which 5 lawsuits were settled --Lord, there were so many, hard to keep track. But the CSD has retained Burke, Williams & Sorensen (who helped write the Measure B initiative, if memory serves, and went to court to sue the old CSD when they went to court to try to stop the Measure from being put on the ballot -- ah, such tangled webs we weave.) The Trib quotes interim General Manager Bleskey as saying that BW&S were hired because "Their specialty is dealing with messes."

Boy, did THEY come to the right town.

And now, a Dec 8 cover letter from the CSD to Marshall W. Davert, Vice President of Montgomery Watson Harza (the firm that designed and was acting as contract manager for the Tri-W sewer plan/plant) giving notice that MWH is in "violation of Government Code 12650, the California "False Claims Act."

Specifically, it cites that "The Contract . . . purportedly signed on September 1, 1999, by Bruce Buel for the LOCSD and attested to by Karen Vega purportedly on the same date . Carol Tate, a Vice President for MWH also purports to have executed the Contract on Sept 1, 1999." The letter contends that the contract may be invalid because the LOCSD Board didn't approve Agenda Item No 13 concering this contract until November 4th.

Here's how the letter puts it: "The date of execution of the Contract is September 1, 1999. It appears that the date of execution of the Contract is in conflict with the date of the Board's November 4, 1999 authorization. There is no provision in the Board's authorization to back-date the Contract."

Further, "There is no record of the LOCSD Board of Director's taking any action to ratify the Contract." And, weirdly, according to the letter, "On October 22, 1999, the LOCSD entered into a contract that established an employment relationship with Mr. Bruce Buel as the General manager, . . . Mr. Buel's first day of service as the General Manager was November 16, 1999. "

Further still, "Mr. Buel was not the General Manager of the LOCSD until November 16, 1999. Since Mr. Buel was not employed by the District until November 15, 1999, he was not an agent for the District and had no authority to execute the Contract and he had no authority to backdate the Contract."

Aw, Jeeeze. Does somebody gotta lotta 'splainin' to do, some more? Or, happier thought, Has Los Osos accidentally stumbled on the secret of Time Travel? And is now able to go back to the future?

Yes. Los Osos. Never a dull moment.

Talk to the Hand, Reply to the Press. Who do you think YOU are, anyway, an elected body or something?

The following is a cc e-mail from CSD President to Ms. Doduc at the State Water Board in reply to an email on behalf of the SWB (at the bottom of this piece.) What's interesting about this is, of course, the State Water Board's previous decisions to not bother letting the CSD know about their rulings but instead having their decision issued first to the press rather than actually dealing with a CSD Board President or General Manger. This is waaaay cool. Think of the fun ramifications. No need for long, boring meetings and wearisome offical memos. Just call a local reporter and have a little chatty-poo. And if staff is now making critical decisions, then think of the savings in time for Board members. No need for any these headache-making decisions. Let staff do it. Much nicer. Plus disclosing ex-parte communications don't count at the SWB? Woa! This is cool, indeed.

To: CC: "Celeste Cantu" ,"Michael Lauffer" ,, Subject: Re: State Water Board Agenda Item on Los OsosDate: Thu, 8 Dec 2005 15:11:47 -0800

Dear Ms. Doduc: Please thank Mr. Lauffer for his reply on behalf of your Board. I will plan to attend and use my five minutes of public comment, but I must correct his assessment of the hearing and public testimony that was given at the November 16, 2005 public hearing regarding the Los Osos SRF loan.

We brought several speakers from our Board and staff, in order to make statements during the public comment period only, at five minutes apiece. Citizens also made the twelve hour round trip to testify in support of our Los Osos Board, at their five minutes apiece.

No one at the State Water Board contacted us prior to the hearing, nor did we ever receive a copy of the hearing notice, any prepared staff report or the draft resolution. We heard about the November 16th meeting through a local reporter.

We were not granted "ample" or any additional time to present very important information to your Board on behalf of our community, other than the same equal time that was granted to any citizen of the United States, in this case, five minutes apiece.

We were not granted any additional time to present our case and very important information that is pertinent to your Board's anticipated actions, and we were and remain very concerned about this, as I testified during my five minutes of testimony.

As you may recall, I testified that I would be unable to list all of my comments and concerns to you, due to the time constraints that were placed on my testimony. I also testified that I was concerned that staff's recommendations may have been impossible. I even made one additional attempt to reach you at the end of the hearing, asking your Board an additional question, which was something to the effect of, "what if the LOCSD cannot bond and/or legally meet the requirements that you have set forward in your "take-it-or-leave-it-resolution and conditions"?.

The State Water Board office and/or staff did not respond to numerous emails and phone calls that I made during the weeks of October 30-November 16, 2005 (to Celeste Cantu, William Ruckeyser and Darrin Polhemus), other than one returned phone call from Darrin before he went on vacation and one from a very kind secretary that told me that everyone on staff and the Board were "too busy" to respond to my calls.

I never received any return communications from the Water Board and/or Staff - (you explained that you were unable to return my calls, due to the hearing, thank you for explaining), but I never heard back from either Celeste Cantu or William Ruckeyser, although the press was receiving regular communications from them. This method of communication and cooperation is also of great concern to the 15,000+ citizens that I represent as an elected official and official spokesperson for the Los Osos community. This is another reason why I traveled to speak with you last month.

Our community and our duly elected Board of Directors heard about the December 16, 2005 hearing through a reporter; I then had to call Darrin Polhemus to confirm this. We were never sent any official noticing or staff report for the meeting and the staff report that was eventually produced wasn't even posted on your website until one day before the hearing.

How can our Boards communicate more effectively if I cannot get anyone to return my calls, notice us of official meetings, provide staff reports and/or respond to our Board in any cooperative way?

Ms. Doduc, I respectfully request that your board allow more time to hear more information from us before making any final decisions about Los Osos, considering the seriousness of the situation.

As I understand it, only the Board can make decisions, yet your staff made several decisions along the way about this SRF loan, on your behalf, prior to the hearing held on November 16, 2005. A citizen during public testimony requested a disclosure of all exparte communications that occurred leading up to the staff decision to "reject the first negotiated deal that came from Assemblyman Blakeslee's week of negotiations" and he was told by Board Member Richard Katz that "exparte did not apply".

These staff decisions are causing great repercussions and harm to the citizens of Los Osos. If it is truly only the Board that can act on these matters, then is it also possible that your staff overstepped its authority and your Board was not given ample opportunity to consider all facts that it should have received before any decisions were made?

As an elected official, I understand this role well, and you are now being asked to make a very important decision tomorrow without receiving all of the facts.

I have great concerns that your Board was not apprised by your staff of all the events that transpired at the staff level regarding this loan - and that perhaps these staff decisions were decisions that only your Board could make. Additional information and testimony might allow you to make a more informed decision about Los Osos, if you actually were able to hear more about what we have to say - and five minutes from me will probably not be enough to accomplish this.

Thank you very much again for your re-consideration of my request. Most Sincerely, from Lisa Schicker, LOCSD President by email or cell today 805-234-1228. ============================================================From: "Michael Lauffer" Date: 2005/12/08 Thu PM 01:08:05 PSTTo: CC: "Celeste Cantu" , "Tam Doduc" Subject: State Water Board Agenda Item on Los OsosMs. Schicker,

After conferring with Chair Doduc, you will be permitted five minutes to make your presentation to the State Water Resources Control Board at tomorrow's meeting. Recall that this loan has been before the board multiple times. Further, the board's proposed action is the logical result of the district's actions in response to the November 16 State Water Board meeting. At the November 16 meeting, you had been afforded ample time to make the district's case.-maml

Calhoun’s Can(n)ons ,The Bay News, Los Osos, CA For Dec 7,2005

Shut Up And Eat Your Gruel, Los Osos! What do you mean, Nuh-UNH?

I have long believed that the world can be divided into two nearly equal basic groups: Adults & Children, or, if you prefer, Wolves & Sheep, or Good Children, who obey & Wicked Children, who disobey and make rude noises with their tongues.

Society runs smoothly because, for the most part, we humans mind our P’s and Q’s, and do as we’re told. There usually is no need for dire threats and our rules and laws and enforcement mechanisms range from polite frowns to bullets in the brain.

Indeed, you can see how perfectly the typical enforcement mechanisms work by watching a Border Collie run a band of sheep. There is no need to nip at a hock. All the dog needs is The Look, and the sheep will panic and run. It’s simple.

I was thinking of this while reading the “Central Coast Water Board Prosecution Staff Rebuttal” to the CSD’s request for a continuance of the Regional Water Quality Control Board’s Dec. 1st hearing to determine whether Los Osos will be FINED!FINED!FINED!WE’RE ALL GONNA DIE INNA STREETS LIKE DAWGS!

Amidst the legaleze, there on page 10 & 12, was the curiously human heart of this regulatory dance: Los Osos must be decimated as an example for others who might challenge the power of the RWQCB, question the premise that without enforcement you won’t have compliance, and because the citizens of Los Osos, instead of behaving like repentant sinners, are behaving like Wicked Children and are making rude noises with their tongues, so an example must be set, no matter how self defeating or pointless.

In short, the RWQCB’s “Look” had not spooked these particular sheep. Indeed, these wretched ingrates, instead of coming cap in hand (“Oh, Mummy, pleeeeeze, don’t spank, we’re sorry, we won’t do it again.”), these rotten little children from The Dogpatch, disheveled denizens from my Beloved Bangladesh By The Bay, a town with millions and millions of gallons of raw sewage pouring daily down the middle of its unpaved streets, all gushing into Morro Bay where it is killing small children who dare set foot in the deadly water, these unwashed wretched snots had the temerity to affront the dignity of the Regional Board and Staff by coming out with all guns blazing, questioning our authority, questioning our staff’s behavior, questioning our out-of-date facts, challenging our previous decisions, and threatening our majesty and power? Why, the absolute gall!

In a Tribune “Viewpoint,” Andrew Christie, chapter coordinator for the Santa Lucia Chapter of the Sierra Club, notes something that may have gone missing in all the chest-thumping noise: “The citizens of Los Osos perceived a potentially better solution than the one they had been told they had to accept, and they voted for it.” He then goes on to ask some question of the Board members: “How is a ballot measure that’s voted into law an avoidable delay, how would a fine guaranteeing bankruptcy clean up the estuary, and how would an administrative agency justify attempting to cancel and reverse the results of an election.?”

What the RWQCB may not understand is that sometimes the only way forward is a step back. From day one, the effort to solve Los Osos WATER and wasteWATER problems has zigged and zagged in fits and starts and stops, hit dead-ends, backed up, met unavoidable delays and then more re-starts, but always it has moved forward towards a resolution with the help and hindrance of the RWQCB—hindrance at its refusal to understand how its threats forced a project to be designed and sited before critical studies could be done, and helped because it repeatedly gave both the County and then the various CSD Boards enormous leeway for years for a variety of reasons. Until now, until this Board, this election, this time.

Yet this time, nothing has changed except a missing component has finally been added, a component that should have been in place years ago – a Proposition 218-like assessment vote and/or a Measure B-type vote on a completed plan – either of which will allow this community to choose the final act they want to close this long-running drama.

Lights, Camera, SCRIPT!

O.K. Los Osos. We know our CSD meetings are theatre, but in theatre, the actors are supposed to pay attention to script changes. When the director reshuffles scenes and takes out certain lines, pay attention! If not, you’ll see your Dramatic Reading from Hamlet end up as nonsensical farce plunked down in the middle of Spamalot.

Case in point. At the Dec 6 CSD meeting, interim attorney McClendon offered an interesting explanation as to the settlement by the CSD with the C.A.S.E. folks. If you recall, the recalled-3 Board majority went into court to block the Measure B initiative from ever getting on the ballot. Judge Hilton granted the stay, it immediately went to the appellate court in Ventura. That court issued a stay to the stay and asked Hilton to, basically, show why he issued the original stay. Apparently, the appellate court was looking at a recent State Supreme Court ruling that said that unless an initiative or referendum was blatantly, obvious-to-all unconstitutional, it should be allowed to go to ballot and then, if passed, it could be challenged in court. The idea behind that ruling is to safeguard the people’s right to vote and so it is better to err on the side of possibly letting a few goofy initiatives in rather than risk blocking a sacred right to vote.

When Measure B passed, the new Board had a risky choice: Drop their predecessor’s lawsuit and negotiate a fair amount for C.A.S.E.’s lawyers’ fees. (Remember, it was the previous CSD Board that brought suit, not C.A.S.E.) or continue to challenge the case and risk that the appellate court had already tipped its hand regarding its looking at the Supreme Court’s ruling and gamble on losing the case and having to settle lawyers’ fees that would be set by a formula by a judge that would surely be waaaaaaay higher. Rock? Hard place? none of which would have happened if the recalled-3 hadn’t filed suit in the first place, thereby putting the district at risk.

The present CSD didn’t want to take a further financial gamble and so settled. They also made absolutely clear that neither Al Barrow nor anyone involved with C.A.S.E. would get a penny. It was all paid directly to the attorneys they had to hire to defend against the previous CSD board’s lawsuit. Let me repeat, Mr. McClendon made it absolutely clear that Mr. Barrow didn’t get a penny.

Why is that relevant? Well, an audience member sat through that whole explanation only a few feet away from McClendon, then during public comment, got up and read from a prepared text. In a wonderful baritone that kept dramatically deepening the more the speaker’s ramped-up outrage grew, he repeatedly excoriated the CSD for paying Mr. Barrow $125,000. All that was missing from the drama was a few well-timed podium thumps.

Alas, instead of a key scene from Hamlet, we ended up with a surreal page from Spamalot. Folks in the audience must have swiveled their heads, rolled their eyes and thought, Huh? What page is he on? Wasn’t he sitting right there? Didn’t he hear?

So, my dear fellow Los Osos Thespians. It’s all well and good to read from prepared speeches. Few people, including myself, are able to speak on our feet. But, for crying out loud, pay attention to new information coming in and edit your written comments accordingly. Otherwise you end up looking like Saturday Night Live’s late, great Emily Latella, she of the rail against “violins in the street,” who, when reminded the topic was “violence in the streets,” sweetly squints at the camera and says, “Oh, well, nevermind.”

When you mix drama and inadvertent comedy you often end up with farce. Not, I suspect, the intended outcome of most folks who stand up to speak during public comment, although it often does come as a welcome relief.