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
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
REQUEST TO ACTIVATE PETITION CURRENTLY HELD IN ABEYANCE BY
FILING AMENDED PETITION
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.
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
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
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
4. The Project Delays That Occurred From January 1, 1999 to October 27,
2000 Were Unanticipated and Were Beyond the Reasonable Control of the
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
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
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
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.”
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,
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
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
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.
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.
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
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
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
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.
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
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
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.
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
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
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”).
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.
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
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
Bruce Buel to Roger Briggs, p.4). This was confirmed in the October 27, 2000 hearing
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
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
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
Gary J. Grimm