Recalled Los Osos CSD director, Gordon Hensley, Stuart Denker and a new group of dreamers wanting to save the dream of having a sewer plant in the middle of their town and calling themselves Taxpayers Watch filed a lawsuit to stop the CSD from stopping the contractors from digging holes in the ground. Judge Hilton set Friday, Oct 7 for the “ex parte” hearing since the previous hearing was so rushed that the CSD’s official lawyer didn’t have sufficient notice to make it to the court in time.
As my previous post notes, the Taxpayer’s Watch attorney hadn’t bothered to read the contract with the various companies digging holes in the ground here in Los Osos, and was unaware that Section 15 was in the contract and had been invoked – that was a “no reason needed” stand down for up to 90 days, no harm, no foul. Quel embarrassments!
On this go round, Ms. Kate M. Neiswender of the Law Office of KM Neiswender, Ventura, presented several points, including a very interesting plea that went something like this: By standing idle, the contactors are getting paid gazillions a day to do nothing, thereby bleeding the taxpayers dry (not mentioning, of course, her client Hensley caused that very financial bleed out to commence by refusing to wait until after the election before setting everyone to work digging holes in the ground, thereby gambling with the taxpayers money – which she now claims he’s so worried about – that the recall would fail. It didn’t and all the money the recalled Directors gambled on went tumbling down the holes in the ground they ordered dug.) and her clients want this stopped so they demand that the judge intervene and force the contractors to get back to work digging holes in the ground and laying pipe. Then, while they’re busy laying pipe, the CSD can look around for another sewer plant site or consider other options, but that pipe will be popped in the ground, miles and miles of it, zipping open one street after another, hooking up laterals to house, world without end, Amen. All in an effort to SAVE MONEY.
What’s wrong with that, you may ask? Well, all the pipe that’s already been laid in the ground is gravity flow pipe of a certain size and the entire street design is laid out to run in certain directions with lift and pumping stations planned for a sewer plant that was to be located in the middle of town. If the sewer plant were magically to be moved out of town, much of that pipe might have to be dug up and fiddled with. Or if the community voted on building another type of project – say, a STEP/STEG project that utilizes much smaller bore pipe – all the pipe – miles and miles of it that Ms. Neiswender wants laid right now quick-quick would have to be dug up and replaced .
Now, can anyone explain to me how that would save money? Yes, it must be new math.
In either case, the Judge dismissed the case for a very simple reason. He didn’t feel a private party (Hensley, Taxpayers Watch, et al) had standing to bring suit to require the courts to intervene in what Judge Hilton clearly saw was a legislative and regulatory dogfight: i.e. the CSD vs the RWQCB. In short, the law gave the Regional Water Quality Control Board jurisdiction over this matter as well as enforcement options, none of which required a court to intervene. But, Ms. Neiswender was free to file again if she wished.
Of greater interest was the Tribune headline that morning, which can best be described as:
Mommy, Why Is The Tribune Acting As A Shill For The Regional Quality Control Board By Running Scary Headlines But Forgetting To Mention THE REST OF THE STORY?
The Oct 7 story took as its text a letter written by the Regional Board’s Executive Office, Roger Briggs (a staff member, not a Board member), that asks the Board (not staff) to consider fining Los Osos and threatens to ask that individual homeowners be sued, unless the CSD agrees to “support completion of THIS (emphasis mine) wastewater project” and demanded that the CSD also continue “to defend against appeal of the recent Superior Court ruling invalidating the facility location initiative.” That is, a staff officer of a regulatory body, the Regional Board, is demanding that the CSD build a certain specific project and is also demanding they do certain things regarding a voter sponsored initiative concerning the specific location of that project.
What’s interesting about the letter, and most interesting about the Trib’s story, is the several items left out.
First, it is the Board, not Briggs, that will decide what will happen at its hearing in December. Second, to my knowledge, the RWQCB is forbidden from telling a community what to build, where to locate it or how much it will cost. (This has been consistently “wink-nudge” ignored in the case of Los Osos.) Third, to my knowledge, just as Judge Hilton noted that there was no authority for him to intervene between the CSD and the RWQCB, by what authority does the RWQCB now claim they can demand intervention by the CSD between the voters and their initiatives?
Also gone missing in the Tribune’s story is this: At the Oct 6th CSD meeting, quasi-sort- of- General Manager Bruce Buel referenced for the new CSD the Time Schedule Order No. 00-131 Petition from the State Water Resources Control Board. According to Buel, this petition can “defend against fines,” for an interesting reason.
Ever since 2001, the CSD has asked for and been granted a request to hold in abeyance the original failure to meet its original time schedule and every year since that waiver was re-issued, 2002, 2003, 2004, etc. The petition was requested because “additional time will be needed to resolve remain[ing] issues relating to this petition.”
In short, for years the CSD has been unable to meet the original time schedule for a variety of real-world reasons and has been non-compliant and could have been fined gazillions at any time during that period. But it wasn’t. Why? Because it had reasonable, real-world, real-time “issues” that needed resolving. A voter initiative and a new CSD Board would certainly rank as real-world issues that would need “additional time” to resolve. So the question would have to be, since the RWQCB cannot dictate type of sewer plant or placement, all they’re left with is a time schedule and if they’ve granted extensions for years, why not now, since the intention of the new CSD is to proceed with a project, it just needs more time – exactly what the old CSD requested and was granted, year after year.
(Claiming that all these fines and threats are needed now because pollution is so serious that we’re all gonna die in the streets like dawgs, also ignores another RWQCB ruling (#83-12), made at the same time as #83-13, and that was the requirement that the CSD form a Septic Tank Management District. For years, they did nothing. And the RWQCB never demanded enforcement. Nothing. Zip. How much pollution from old, leaking, un-repaired tanks went on all these years, ignored by a Board that claims that water quality and water protection are its only goal?)
Second, regarding the Tribune’s story of scaring people to death, what also went missing was the July 9, 2004 RWQCB staff report that could be called, “Oh, Damn, Whatever Shall We Do About That ^%^$%*(* Los Osos?” Pages long, it listed the things RWQCB could do and then why those things were simply not feasible. The report was inadvertently funny because with every page a reader could sense the growing frustration of the writer. And it went from the sublime to the unintentionally silly.
For example, the RWQCB can fine the CSD gazillions. If the CSD goes bankrupt, there’ll be no money, no wastewater project, no “moving forward,” no nothing. Since the voters would have to vote to dissolve even a bankrupt CSD, that would mean more delay. Since the stated goal of the RWQCB isn’t to punish and avenge and destroy, but to get the waters clean (a goal shared by the vast majority of Los Ososians – Dreamers & Recallers alike.), bankrupting the community is counterproductive. True, it would transfer money needed to build a sewer project and put it in the pocket of the RWQCB, but that begs a question: Is the idea here just regulatory extortion? Or agency help in getting this community sewered with a project the community wants?
Even more interesting is the problem faced by retaliating against single homeowners. Unless the RWQCB has managed to suspend the Constitution of the United States, everyone in Los Osos is innocent of nitrate pollution of the upper aquifer until proven guilty. So, how would such retaliation/suing/enforcement actually be done?
Would RWQCB hire armed thugs break into your home and pour tracer die down each and every toilet in town, then drill test wells to track the water as it filtered through the ground? Would the Water Quality goon squad also take a DNA swab from your cheek -- sans search warrant -- so they could further create an unbreakable chain of evidence that wastewater B can be directly linked to criminal homeowner B?
To my knowledge, citizens cannot be swept into a bundle and prosecuted on some generalized charge (Somebody on your block robbed a liquor store so we’re jailing the entire block and charging you all with robbery.), so the RWQCB would have to prove that every home in the prohibition zone is polluting. Do they have the staff and resources needed to do that?
Weirder still, since by its own definition (30’ to groundwater) certain homes and tracts of homes in the prohibition zone are now exempt from sewering, what would happen if they found other homes that were also more than 30’ from groundwater and so weren’t polluting? Would such a house-by-house testing result in a checker-board town whose citizens could legally demand that they’ll be damned if they’ll stand by to be hanged for goats when it turns out they’re actually sheep, and so would legally be allowed to opt-out of a sewer plan thereby making a hash of any plan to sewer?
As the report continued, it got to the slightly silly: Demanding a cease and desist order shutting everyone’s toilets down. That idea didn’t go far since it noted that there weren’t enough porta-potties in the county to make that a practical solution. Plus, it was doubtful that the County Health Dept would allow such a thing since it would endanger the health and life of sick people who couldn’t be expected to traipse out into the cold to go pee.
All of the above went missing in the Tribune’s story. So, I called Bill Morem, the editorial page Editor, and asked, How come? He promised to look into those interesting documents and see if maybe the paper that can devote a gazillion pages to a movie star who’s been dead 50 years might manage to muster up the rest of the story, since informing its readers with a balanced story should be the Trib’s job, not propagandizing or shilling or sensationalizing a complex and serious issue in order to stampede people into making silly decision.
A fully informed citizenry can make good decisions. A terrorized, misinformed, spun, and gulled community is simply a sitting duck for no end of manipulation and deceit. Sheep dogs herd sheep by intimidation alone. Bear dogs need a whole different strategy.
I can only hope the Bearish Folk of Los Osos are courageous enough to ask a whole lot of follow-up questions that must be asked whenever someone says . . . IF.
If, what, then what?