Call the TV Stations! Call a Doctor! Call My Lawyer! Call a Lifeguard!

Here’s excerpts from the June 28th Bay News story headlined, “Minor Problems Found In Los Osos CSD Audit:”

“Although its accounting system was operating ‘adequately,’ there were significant deficiencies in the design or operation of the internal control structure of the Los Osos Community Services District’s accounting practices, according to a recently completed audit for fiscal year 2004-05.

“According to the audit by CPA firm, Crosby and Cindrich, they discovered one “reportable condition,” under standards established by the American Institute of Certified Public Accountants.

“Reportable conditions involve matters relating to significant deficiencies in the design or operation of an internal control structure that could adversely affect the organization’s ability to record, process, summarize and report financial data.

“The audit report said the reportable condition was that accounting duties were not properly segregated to different individuals in the office.” . . . [that] Whenever these accounting function duties are doubled-up or handled by one person, a ‘key person’ situation exists which could enable that person to manipulate the accounting records for his or her own behalf.

“According to Dan Bleskey, interim general manager of the CSD, the accounting work [in question] was performed by Pat McClenahan, former administrative services manager, and overseen by then G.M. Bruce Buel.

“Last November, the CSD asked the county District Attorney’s Office to investigate “improprieties” involving sewer project contracts and lack of internal controls. The D.A. declined, claiming that the statue of limitations had expired.

“Blesky said the audit shows there was no criminal activity with regards to the district’s accounting procedures.” . . .

“Bleskey said they now have a CPA, an accounts payable bookkeeper and an administrative services manager working on the books.” . . . . “Bleskey said they have put into place a number of accounting improvements and plan to implement others.” . . . . [The above mentioned] McClenahan was officially terminated in April and was at odds with Bleskey over the use of money from a State Revolving Fund loan.

“She accused Bleskey of making false statements about the district’s wastewater checking account, while Bleskey said there were 97 incidents where she exceeded her authority on making payments, claiming she failed to maintain financial controls.

“McClenahan swore in a deposition that she and her boss argued over whether it was appropriate to use SRF monies to pay litigations settlements and attorney fees.

“The audit also states that several times original data entry for cash receipts and loan disbursements were incorrectly coded to the wrong account when they were originally posted.” . . .

“Crosby and Cindrich also suggested that the CSD consider creating a manual for accounting procedures. “By developing written instructions and procedures for all accounting assignments and duties, it will insure that similar transactions will be handled consistently and the accounting procedures used are appropriate.”

In short, the audit showed “reportable conditions” that had occurred . . . . on the watch of the former General Manager Bruce Buel, former administrative services manager, Pat McClenahan, and the recalled Board.

The news that poorly set up bookkeeping procedures were NOT the fault of their bet noire, the Anti-Christ new Board caused all the members of Taxpayers Watch to give out a blood curdling shriek and fall to the floor. When they came to their senses, they immediately filed yet another lawsuit against the district for infliction of pain and skull-cracks caused by their heads hitting the linoleum, plus one more lawsuit accusing the Anti-Christ new Board of wasting money on an audit that unfortunately showed that the OLD board’s accounting procedures were not properly done.

Meanwhile, back at the June 29th CSD meeting, the usual round of Paranoia, Misunderstanding, Muddlement & Confusion was taking place concerning the Blakeslee Proposal, which survived the first round in Sacramento with an addition, the Tribune reported, which would allow the county “the option of providing sewer service and other water quality assistance to the entire town, rather than only the portion targeted by state water quality regulators. “I was absolutely ecstatic,” [Supervisor] Bianchi said of the addition. “They (Los Osos residents) all contribute to the (water quality) problem, so the entire community needs to be involved in a solution.”

That addition to the bill will be welcome news for people who understand that what needs fixing here is a water BASIN, not just some arbitrarily drawn lines on a map. But the bill is a long way from surviving the many other committees it has to get through, wherein it can be amended to improvement and refinement or amended to death. Much will depend on the community’s involvement in the process. The bill will be discussed at the July 6th CSD meeting so everyone should attend or at least pay attention and get information as to just what the bill is or isn’t, does or doesn’t say, means or doesn’t mean. As with anything Los Ososish, the Devil is in the details.

As for The Great Pool Kerfluffle, that was postponed for staff to come back with more information as to best options for interest rates and ways to secure that pool money against any lurking creditors should the very thing heartily supported by the Chief Pool Personage, Pandora, -- namely dissolution of the CSD or bankruptcy (helped along by those nice Taxpayers Watch lawsuits, among others) – come about.

Pandora, as Parks Commissioner, had managed to get from Pete Jenny at the Parks Department, what amounted to a wonderful piece of “special legislation” promising to isolate the pool fund into a separate account and exempt it from any of the county’s usual service charges. Since I was under the impression that the usual practice of the Parks Dept,( now under the gun from a Grand Jury Report as being underfunded, overworked, and lacking resources because they’re underfunded, & etc) is to “bookmark” then mingle and use funds from all over the county for any project anywhere that’s actually ready to roll rather than sequestering bits and pieces in different communities, this letter offering to sequester that money is an especially generous offer, one I trust other organizations will pay particular attention to as precedent for their local projects.

It was an interesting experience to have Medea herself in the room, sitting one row away from a CDO recipient whose life and wife’s health was severely impacted by Pandora’s email wishes to RWQCB’s Roger Briggs coming true and descending on their house, not hers.

But no chairs were thrown.

There will be more public discussions on the Blakeslee Bill and sewer project updates at the July 6 and 7 meetings at the community at 7 p.m. This community has one last chance to get involved, get accurately informed, shape the plans they want to buy, and so forth. If the community sits home thinking that Big Uncle Daddy will make all their decisions for them so they don’t have to lift a finger or get involved, well, they’re right. Big Uncle Daddy WILL make their decisions for them. Which is why we’re in this mess in the first place, remember?

And in closing, a special Howdy to “Spectator,” one of our “anonymoose” posters on this blog site. He was at the meeting last night and apparently felt "safe" enough to self-identify and introduce himself. My advice for him: Get cool socks, too. We'll start a club.

If It Ain't Sewers, It's Swimming Pools! So we now have a story in the Tribune regarding a little dust up about the Los Osos swimming pool funds. For a nice historic look at, oh, gosh, how shall I characterize it -- PATTERNS? THE PAST IS PROLOGUE? LEOPARDS AND SPOTS? -- mayI strongly suggest a peek at Ron Crawford's www.sewerwatch.blogspot.com for another little history lesson. After reading it, be sure to wait 2 hours before going swimming. . . . THEN, mark your calendars: Friday July 7 a sewer update workshop, 7 pm. at the Los Osos Community Center and Friday July 28, the Project Update Report again at 7 pm at the Los Osos Community Center -- dancing bears, consultants, storyboards, charts, power point presentations, balloons, popcorn. . . well, you get the idea. Be there.

And Now, For Something Sort of Different . . .


Ah, yes, amidst all the Blakeslee Breakthrough Proposal hoopla, perhaps we have forgotten The Los Osos 45? If so, you need to pick up a copy of this month’s The Rock and read their stories. If you want to see the real human toll that the various Dreamers wished to inflict on their neighbors when they emailed Roger Briggs at the RWQCB before the recall was even certified demanding he rain fire and brimstone down upon this community, well, The Rock’s interviews will give you an up-close and personal look.

What the hapless 45 have been required to do is submit their “briefs” explaining whether they want their “trials” to continue as is (with “legally tainted” prosecutors and staff and board, or whether a new prosecutor would be O.K. or . .. . .

Below is the CSD’s “brief.” They requested and got CDO “designated status” along with the Los Osos 45. The County was asked to stand with its citizens as in “Interested Party” or request “Designated Status” and they stood silent and did nothing. (I know, it does come as a surprise that everyone who lives in Los Osos is still a taxpaying citizen of the COUNTY, can you believe it? And, need I add, that those folks who are thrilled with the possibility that the CSD will be dissolved and The County will take over, I would suggest they read the issues raised in this brief and remember that County Counsel Cash Wyatt could have written this brief as a Designated Party on behalf of a handful of beleaguered COUNTY citizens, but . . . didn’t.)

Then, following the brief, since we’re still into Things Legalish, a list of the various lawsuits the CSD is involved in. The cases in bold are ones the CSD filed. The rest, are cases brought against the CSD, ones they are defending. My favorite is the Pre-Recall Los Osos Taxpayers Association case which, among other things, complains about the money being spent by the CSD on lawyers and does so by suing the CSD so they have to spend money on . . . lawyers.


Doncha love it!


June 26, 2006
Via facsimile (805) 543-0397 and electronic mail
Michael Thomas, Assistant Executive Director
Central Coast Water Board
895 Aerovista Place Suite 101
San Luis Obispo, CA 93401
Re: Proposed CDO's/Los Osos and Baywood Park Residents
Dear Mr. Thomas:
The undersigned represents the Los Osos Community Services District (“District”), a Designated Party in the above-referenced matter. This letter is submitted pursuant to Michael Thomas’ May 18, 2006 letter memorializing the briefing schedule on due process issues ordered by Chairman Young during the status conference on May 11, 2006.
Mr. Thomas’ letter requests responses to five (5) questions, all of which will be answered in detail below. However, for clarity, the “short answers” are:
1. Yes, the Prosecution’s case must be stricken entirely.
2. Yes, if the Prosecution starts over, so does the production of evidence.
3. Yes, if the Prosecution presents a “supplemental case,” the Designated Parties should have the opportunity to supplement their cases as well.
4. Yes, common sense dictates that if the Prosecution begins anew then the defense begins anew as well.
5. The District has no personal issues that require accommodation at this time.
In addition, and as will also be further explained below, the District contends that all of the CDO prosecutions must be dismissed and, if necessary, commenced again and that those matters can neither be prosecuted by a team that includes senior RWQCB staff nor adjudicated by RWQCB members Young, Shallcross, Press, or Hayashi.

STATEMENT OF RELEVANT FACTS
In late 2005 and into 2006, the RWQCB brought an Administrative Civil Liability (“ACL”) action against the District for alleged violations of a Time Schedule Order and basin plan prohibitions. Such ACL action was adjudicated by RWQCB members Young, Jeffries, Shallcross, Press, and Hayashi who, on January 5, 2006 found against the District and imposed fines in excess of $6.5 million. However, in so ruling, the Board explicitly stated that the ACL action “did not go far enough” and directed RWQCB Executive Officer Roger Briggs to pursue enforcement actions against the 4500+ individual homeowners who relied on septic systems to manage their waste.
CHAIRPERSON YOUNG: In now, because some Board Members have expressed some concern about whether this [ACL] penalty is enough.
BOARD MEMBER PRESS: I’m interested in water quality, and that is why we are instructing staff and urging staff to come back with individual enforcement actions.
BOARD MEMBER SHALLCROSS: I concur with Dr. Press. ...We don’t seem to be getting anywhere, and so hopefully going after the individual dischargers may create the political will for something to happen in a reasonable amount of time.
BOARD MEMBER HAYASHI: Yeah, I’d like to echo the same feelings from my fellow Board Members.
CHAIRPERSON YOUNG: I agree that the individual enforcement actions I think are critical. I think they have to start as soon as staff can start to process things and get them moving. It’s quite clear to me that the folks of Los Osos, in my opinion, are really not capable of addressing these issues with their wastewater disposal in a rational way.
(Transcripts of January 5, 2006 RWQCB meeting on ACL action, attached hereto)
Mr. Briggs began such prosecutions immediately, announcing on January 18, 2006 that Cease and Desist Orders (“CDO’s”) were being prepared against individual homeowners and that a Prosecution Team had been formed to pursue these actions. The Prosecution Team consisted of the following RWQCB staff: Roger Briggs, Executive Officer; Harvey Packard, Supervisor of Enforcement; Sorrell Marks, Senior Staff; Matt Thompson, Enforcement Engineer; and Lori Okun, the RWQCB’s legal counsel. According to the attached organizational chart, this means that 4 out of the 6 most senior staff members---the ones who most regularly advise the RWQCB members the most--- were named to the Prosecution Team.
Shortly thereafter, the proposed CDO’s were issued against 50 (later reduced to 45) individual septic system owners who were chosen ‘at random” by the Prosecution Team. Procedural comments were received by Chairman Young which lead to a February 28, 2006 Hearing Notice whereby briefs and evidence by all parties (including the Prosecution) were to be submitted by April 4, 2006, rebuttal briefs and evidence by all parties (including the Prosecution) submitted by April 19, 2006 and hearing before the RWQCB to be held on April 28, 2006.
At the hearing, the District moved to dismiss on due process grounds, alleging that (1) the RWQCB members who asked that the prosecutions be brought should not be the same ones adjudicating the cases, and (2) that RWQCB staff members who routinely advise the RWQCB should not serve on the Prosecution Team prosecuting cases before that same RWQCB. The District’s motion was denied.
Public comments were then received, and the Prosecution put on its case-in-chief in its entirety. Next, the District put on about half of its case before the hearing was continued to May 11 due to the late hour.
On May 4, 2006, Ms. Okun withdrew as the Prosecution Team’s counsel and the Prosecution Team requested that the May 11 hearing be continued so that they could procure new legal counsel. The stated reason is that the Office of Chief Counsel of the State Water Boards believes it best not to litigate “dual role” due process issues here as well as in pending court cases. Such letter also mentions the State Boards newly created Office of Enforcement, which is designed to remedy the due process shortcomings inherent in the Water Boards long standing enforcement protocol.
Chairman Young granted the request for continuance, but reserved May 11 for a status conference. On that day the RWQCB heard argument as to how to proceed given the change in the make up of the Prosecution Team. Mr. Thomas’ May 18, 2006 letter setting a briefing schedule on due process issues followed.
ARGUMENT
Due Process Is Guaranteed By The Constitution And Its Provisions Should Be Interpreted Broadly, Not Narrowly
In her April 27, 2006 letter to District President Schicker, Tam Doduc, Chair of the State Water Resources Control Board writes:
“Thank you for your email. The State Water Resources Control Board takes due process concerns very seriously. While I cannot actively intervene in the on-going process before the Central Coast Water Board, I have relayed your concerns to the Regional Water Board staff. I have also requested that they carefully consider all procedural requests (such as your request for continuance) and ensure that their hearing procedures protect the due process rights of all individuals.”
Chair Doduc’s view is certainly consistent with the 5th Amendment to the U.S. Constitution (applied to states via the 14th Amendment) which states that, in relevant part, “[n]o person shall be …deprived of life, liberty, or property without due process of law.” From a procedural perspective, this constitutional right simply means that that the government must ensure a fair decision-making process when it seeks to deprive an individual of life, liberty or property. Due process always requires a relatively level playing field, the “constitutional floor” of a “fair trial in a fair tribunal.” In other words, a fair hearing before a neutral or unbiased decision-maker. Nightlife Partners v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90 (citing numerous U.S. Supreme Court due process decisions).
Such constitutional protections have been interpreted broadly in favor of jealously guarding due process rights. As applied to administrative hearings, due process:
“…also demands an appearance of fairness and the absence of even a probability of outside influence on the adjudication. In fact, the broad applicability of administrative hearings to the various rights and responsibilities of citizens and businesses, and the undeniable public interest in fair hearings in the administrative adjudication arena, militate in favor of assuring that such hearings are fair.” Nightlife Partners, supra (emphasis added)
Accordingly, the legal standard in the instant CDO proceedings is for this RWQCB to assure not only actual fairness but also the appearance of fairness and favor the protection of rights over concerns for expediency and making political statements.
The Instant CDO Actions Must Be Dismissed And Any Others Started Anew
Here is a snapshot of where we are in the current process: the Prosecution Team has presented its case and the responding parties have begun to put on their defense; therefore, the relevant inquiries to be made are (1) whether this RWQCB can assure that the process has, to date, appeared and actually was fair, and (2) whether this RWQCB can assure that the process going forward will appear and actually be fair. Each of these is addressed, in turn, below.
The Process To Date Has Been Inherently Unfair
As noted above, the decision to initiate prosecution of the individual septic system owners was made by this RWQCB on January 5 when it directed Mr. Briggs to begin such process. That is tantamount to a superior court judge telling a District Attorney which citizens to make defendants and which defendants to take to trial before that very same judge. It appears unfair and is actually unfair because the adjudicative arm of the government must be kept separate from the prosecution arm in order for fairness of process to occur. Withrow v. Larkin (1975) 421 U.S. 35, 47 In this case, four RWQCB members crossed the line by straying from their role as adjudicators and openly directing which individuals were to be prosecuted before them.
In addition, the secret “random” method by which the first “lucky 50” were selected to be prosecuted may appear “fair” in the sense that all 4500+ septic owners had equal opportunities to be “spared” from the first round of prosecutions, but in practice the process is actually unfair from the perspective that the Prosecution Team has stated that all 4500+ prosecutions will be “the same” and all brought between now and 2010 (end of the “cure period”). That means that the “cure period” given to the first CDO recipients will be longer than that given to the last ones and that the interim requirements imposed on the first round of CDO recipients will last for 3-4 years, while those same interim requirements will be imposed on the last wave of CDO recipients for a few weeks.[1] (Footnote 1: There are other problems with the "random" selection, phased prosecution, and interim requirements aspects of these proceedings that go beyond due process and into the realm of civil rights violations and illegal assessments; however, such issues are beyond the scope of the Chair's requested briefing here and are only mentioned to ensure that they are not considered waived)
Compounding this problem is the makeup of the Prosecution Team. In the case of Quintero v. City of Santa Ana (2003) 114 Cal.App.4th 810, the appellate court held that it is violative of due process when the city attorney that routinely advises the city’s personnel board also prosecutes before that board…the reason being is that such situation creates an appearance of bias and unfairness. The holding in Quintero was recently applied to the SWRCB and its attorneys in a Sacramento Superior Court Case entitled Morongo Band v. SWRCB. In Morongo, the trial court held that a SWRCB attorney cannot act as an enforcement attorney before the SWRCB while concurrently acting as legal advisor for the SWRCB---even if the two matters are unrelated.
The rationale behind the holdings in both Quintero and Morongo is that
“For the Board to allow its legal advisor to also act as an advocate before it creates substantial risk that the Board’s judgment in the case before it will e skewed in favor of the prosecution. The chance that the Board will show a preference toward [the deputy city attorney], even ‘perhaps unconsciously’ is present and unacceptable.” Quintero, supra, at 817.
Thus, at a minimum in the case at bar, because Ms. Okun regularly advises this RWQCB and was a member of the Prosecution Team that prepared briefs submitted to this RWQCB and presented the Prosecution Team’s case to this RWQCB, the appearance if not the actuality of unfairness is implied as a matter of law. Simply put, this RWQCB has now been unfairly influenced in these proceedings by having its counsel serve as prosecutor.
However, in order to be consistent with the legal mandates stated above, this RWQCB must go one step further than that taken by the courts in Quintero and Morongo; namely, to require that when and if new prosecutions are initiated that senior RWQCB staff (e.g. Mr. Briggs, Mr. Packard, and Mr. Thompson) be precluded from participating in the prosecution. The rationale for such conclusion is the same as that applied in Quintero and Morongo; namely that ANYONE, an attorney or otherwise, who regularly advises the RWQCB should not be allowed to prosecute before that same RWQCB. “It would only be natural for Board members, who have looked to [the deputy city attorney] for advice and guidance, to give more credence to his arguments when deciding plaintiff’s case. Whether or not they actually did is irrelevant; the appearance of unfairness is sufficient to invalidate the hearing.” Quintero, supra, at 816. See also Howitt v. Superior Court of Imperial County (1992) 3 Cal.App.4th 1575, 1585; Civil Service Commission v. Superior Court (1984) 163 Cal.App3d 70, 78, fn.1
Executive Officer Roger Briggs advises the RWQCB more often than any other person. Senior staff members Harvey Packard, and Matt Thompson advise the RWQCB often. Presumably, the RWQCB members trust these three senior staff members, otherwise they would not be senior staff. Thus, according to Quintero, it would be natural for this RWQCB, which has looked to senior staff for advice and guidance, to give more credence to their arguments when deciding the CDO matters. Whether or not the RWQCB members actually do or not is irrelevant; the appearance of unfairness is sufficient to invalidate the hearing. Coupled with the fact that three of the top six advisors to the RWQCB (four if one counts Ms. Okun) are on the Prosecution Team in this instance, the appearance of manifest unfairness is not just present---it is grossly apparent.
In sum, Quintero and Morongo prompted the SWRCB to create a new Office of Enforcement and prompted Ms. Okun to withdraw from the Prosecution Team here. Quintero and Morongo strongly support the legal conclusion that the CDO process at bar has, thus far, violated the due process rights of the accused. Similarly, this RWQCB should follow Chair Doduc’s guidance and Supreme Court case law and interpret Quintero and Morongo liberally so as to apply its rational to those who are in a position of trust and regularly advise the RWQCB regardless of whether they are attorneys.
The RWQCB Cannot Unring The Bell
As to whether the CDO enforcement actions can move forward and not be violative of due process, the answer is simple: no, because the RWQCB cannot unring the bell. The Prosecution Team has completed its case-in-chief, so the influence precluded by Quintero and Morongo has already taken place…and no matter how this RWQCB proceeds (short of dismissal) that influence cannot be negated.[2] (Footnote 2: For this reason, allowing the Prosecution Team to supplement its case is pointless, but if that is the Chair's ruling, then common sense fairness dictates that the designated parties should be allowed to respond to such attitional materials) Thus, if these enforcement actions proceed to decision, they will be legally identical to the ones presented in Quintero and Morongo and ultimately suffer the same fate.
In addition, a realistic side effect of moving forward is, in the words of Lori Okun in her May 4, 2006 letter:
“A rehearing would come only after days of wasted ‘first round’ hearings before the Central Coast Water Board, countless hours of wasted staff time, and several years of litigation.”
Thus, it certainly appears that a tremendous amount of public and private resources could be saved by dismissing the instant actions now.
Current RWQCB Members Cannot Adjudicate Future CDO (Septic System) Enforcement Actions
Not only do the above facts and applicable law compel dismissal of the instant CDO actions, it also precludes current RWQCB members from adjudicating future ones. By directing Mr. Briggs to prosecute and having been influenced by trusted staff members wearing their prosecutorial hats, RWQCB members Young, Shallcross, Press, and Hayashi have been irreversibly tainted in favor of the prosecution and, therefore must recuse themselves from this and future enforcement actions against the Los Osos septic system owners.
To honor the right to due process, a decision-maker MUST---not “may” or “should”--- be disqualified when his role as a non-partisan player has been compromised. Nightlife Partners, supra, at 98. Here, RWQCB members who initiated prosecution and have been, as a matter of law, unduly influenced by the Prosecution Team are, without question, compromised as neutral decision-makers.
From a statutory perspective, there are no laws directly addressing the disqualification of biased administrative decision-makers; however, there are rules governing disqualification of judges that are applicable here by analogy because RWQCB enforcement proceedings are quasi-adjudicative in nature and, therefore, the RWQCB’s are obligated to assure the same constitutionally-based due process protections as the courts.
28 U.S.C. Section 455 requires that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” California Code of Civil Procedure Section 170 states that no judge shall preside in a case in which he is not wholly free, disinterested, impartial, and independent. If a reasonable person, aware of all the facts, would fairly entertain doubt concerning a judge’s impartiality, disqualification is mandated, and the existence of actual bias is not required. CCP Section 170.1(a)(6)(C) In this case, given the statements of the RWQCB members quoted above coupled with the undue influence of the Prosecution Team, it is certainly reasonable to question whether these four RWQCB members are giving each of the 45 CDO respondents fair and unbiased consideration. Nor can it be said that the four RWQCB members are independent arbiters because they, themselves, initiated the prosecutions. Combined, these circumstances certainly create enough doubt as to impartiality and, as such, disqualification is mandated.
In Schmidt v. United States 115 F.2d 394, 398 (1940) the court concluded that the trial court judge should have recused himself when an affidavit alleged that the judge was informed in advance of the facts by the prosecutor and expressed a prejudicial opinion regarding the facts of the case an alleged guilt of the defendant. Under these circumstances, the court reasoned that “even a judge may not put aside the propensities of human nature as easily as he does his robe.” In order to eliminate the possibility of any unfairness, the court remanded the case for further proceedings before another judge. Here, the prejudicial comments by RWQCB members at the conclusion of the ACL action in January, 2006 clearly were slanted toward liability of the individual septic system owners; accordingly, evidence of bias exists and due process is violated absent recusal of the RWQCB members.
Accordingly, because the adjudicators of the CDO actions either appear to be or actually are biased, they must recuse themselves from hearing enforcement actions relating to Los Osos septic systems.
CONCLUSION
For all of the foregoing reasons, the instant CDO actions should be dismissed, senior staff should be barred from prosecuting future enforcement actions before this RWQCB, and the RWQCB members who have participated thus far in the instant proceedings should permanently recuse themselves from current and future adjudication of enforcement actions involving septic systems in Los Osos.
Very truly yours,
BURKE, WILLIAMS & SORENSEN, LLP
STEPHEN R. ONSTOT






Final Posting:


Los Osos CSD Litigation (Government Code, §54956.9(b).) as of June 19, 2006

Pre Recall
Los Osos Taxpayers Association v. LOCSD in SLO Superior Court – (public waste) Prop 218

Corenbaum v. LOCSD, Bruce Buel, Bruce Pickens (personnel) in SLO Superior Court

LOCSD v. Golden State et. al. (basin adjudication) in SLO Superior Court

LOCSD v. Corr, eminent domain action (sewer line easement) in SLO Superior Court

Post Recall
Taxpayers Watch, Joyce Albright, Robert C. Crizer, Christopher Isler v. LOCSD
Appeal (CV051012) – Measure B

RWQCB v. LOCSD in SLO Superior Court (CV051074) – Injunctive Relief Measure B

Taxpayers Watch, Joyce Albright, Robert C. Crizer, Christopher Isler v. LOCSD, Steve Senet, John Fouche, Chuck Cesena, Lisa Schicker, Julie Tacker in SLO Superior Court (CV050862) – public waste

Barnard/Monterey Mechanical v. LOCSD - contractor action against LOCSD in SLO Superior Court

RWQCB v. LOCSD - ACL/TSO appeals to SWRCB

Montgomery Watson Harza v. LOCSD in SLO Superior Court (false claim)

Merrill v. LOCSD in SLO Small Claims Court (SC060095) (prepaid assessment challenge)

Sturtevant v. LOCSD in SLO Small Claims Court (SC060026) (water meter dispute)

Parker and Hawley v. LOCSD (public records act writ of mandamus)

LOCSD v. SWRCB (SRF) in Sacramento Superior Court (05AS05422) – breach of contract

LOCSD v. RWQCB, as designated party to individual CDO’s

It’s Them Old Devilish Details

The Blakeslee special legislation is posted at http://www.leginfo.ca.gov/pub/bill/asm/ab%202701-2750ab%202701_bill_20060621_amended . There’s also an “analysis” written by Peter Detwiler, staff consultant to the Senate Committee on Local Government making the rounds. The report was prepared for the hearing on Wednesday, June 28th.

There are so many questions and unknowns about this legislation at this point that it will take some time for everyone to read and digest what it all means and to carefully scrutinize the Intended & Unintended Consequences of it all. Not known is whether the bill, as written, will now go to committee for more input and change, and if so whose input and who does the changing?

Another critical Unknown is whether the CSD has any say in this matter or if the community is left sitting outside the closed backroom door, like the proverbial Red Haired Stepchild, while the Big Boys decide this community’s fate in the smoke-filled room. And so forth.

If I understood the Board of Supervisors’ vote last week, a subcommittee composed of Supervisor Bianchi (oh, Irony!) and Lenthall will review the legislation and give a thumbs up or down by Wednesday. I have no clue if anyone else will be waggling their thumbs in any direction as well.

If the legislation gets passed it won’t take effect until Jan 07, which means a whole lot may change before this can even get out of the gate. According to Blakeslee’s various public statements of intent, he wanted to get all the stakeholders to the table. This legislation doesn’t make it clear just who’s at the table or whether the table’s long gone and only one party – the county – was invited to sit down.

Like everything else in this long, strange trip, it’s important that everyone remain cool, get as much accurate information as possible and stay tuned as things may change moment to moment, so jumping to conclusions may result in someone landing on hard ground as the target zips out from under their feet every ten seconds.

Mucho caveats to all.

Oh, Please Don’t Tell Mother Calhoun That It’s Necessary To Explain THIS to Anyone . . . Part Duh.

On the front page of the June 24 Tribune, amazingly and wonderfully in the same slot as the original story and with the same sized headlines – not buried in the minute “correction” section -- the Tribune notes in headlines, “Activist’s words not a threat, CHP says,” then goes on to note that the “threatening statements” made to Assemblyman Blakeslee’s staff by Al Barrow wasn’t a “threat,” --as in a threat of “physical harm or damage to property” – but more of a “threat of political protest.”

The Tribune continues, “Barrow said Friday that his statements to the assemblyman’s staff were focused on criticism of Blakeslee’s negotiations to have the county take over the town’s controversial sewer project.”

Having seen many of Mr. Barrow’s angry, ramped up “criticisms” and “political protests” at numerous CSD meetings, Mother Calhoun stands behind her previous posting: “Mau-Mauing an assemblyman’s 19 year-old scheduler about legislation or policy is BAD theatre and makes about as much sense as Mau-Mauing the young lady behind the Gottschalks cosmetics counter because the refrigerator you ordered a month ago arrived with an ice tray missing.”

The legislation Mr. Blakeslee is working on that Mr. Barrow was politically protesting will have to be studied carefully by everyone. It may turn out to be a boon or a boondoggle, since the devil is ALWAYS in the details. The legislation may fail out of the box or the language may get modified before the deadline or if any of the major players walk away. At this point, it’s not clear to Mother Calhoun whether the CSD actually IS a party to Mr. Blakeslee’s legislation or merely the poor relative whose fate is being decided for him in a back room deal being cooked up by his rich, powerful Uncles in Sacramento and SLOTown.

Either way, cool heads are what will be needed here in Sewerville. And Blakeslee’s scheduler has nothing to do with any of it.

Calhoun’s Can(n)ons The Bay News, Morro Bay CA for June 21

Lone Ranger or Trojan Horse

The devil, as they say, is always in the details. And that will certainly hold true regarding the “Blakeslee Breakthrough Plan” that calls for a “stand-down” by all the warring parties while a careful series of “negotiations” gets underway.

Some of the first steps in this delicate dance include:

--The CSD Board has voted 5-0 on a resolution expressing its willingness to (among other things) temporarily partner with the County to (in Blakeslee’s words), “establish a structured process to ensure that all feasible and appropriate technologies and treatment locations are considered in a deliberative manner that optimizes overall outcomes with regard to: cost, water quality, and long term sustainability.” The CSD resolution further agrees to seek legislation “that allows the County of San Luis Obispo to assist the [LOCSD], on a temporary basis, by providing the administrative, technical and funding assistance necessary to review, design, construct and initially operate a community wastewater treatment system . “ and “agree to a fair and transparent process that will collaboratively review the District’s anticipated Updated 2001 Wastewater Facilities Report and a site alternative analysis . . .”

--While the BBP calls for the RWQCB to update its existing Time Schedule Order and the CSD resolves to “actively seek support from the state and regional water boards . . . to hold enforcement actions and fines related to this matter in abeyance. . .” it’s not known if the RWQCB will take this “stand-down” opportunity to suspend their misguided CDO prosecution of the hapless “Los Osos 45,” a mad pumping scheme that was a case of unscientific, poorly planned, and unproductive pique.

--And the State Water Board would have to “offer funds from the State Revolving Fund Loan program in accordance with the SRF policy loans,” a loan application that the CSD has already submitted.

Right now, the CSD is engaged in a process that will hopefully end up with a sustainable project that will address critical water overdraft problems, best practices water-use and re-use, and will be a project that will be heading in the right direction from day one, a direction that needs to mesh with a long-overdue Basin Plan update as well as anticipate the coming state regulations for all onsite septic systems outside the Prohibition Zone.

Is the BBP doable? Can the county help it happen? You betcha! So can the CSD, the RWQCB, the State Water Board and the whole community.

One of the many lies that keeps wafting out of Los Osos is that we are all a bunch of “anti-sewer,” Dogpatch swill-rollers who willy-nilly stopped a wonderful, glorious, perfect sewer plant from being built in the middle of town just because we’re stupid and mean. And since perception is reality, that became “The Truth” for many outside the community, including Sacramento regulators, SLO county office-holders and residents.

For many others who bothered to look closer, it was apparent that many serious missteps had been made, including Resolution 83-13’s false conflation of “sewer” with “clean water,” the RWQCB enforcing a timeline that was “unreasonable” from day one with constant threats that drove the wrong project down the wrong road; the State Water Board massively increasing the unsecured SRF loan when they knew that a Prop 218 lawsuit and a recall were in the pipeline; the failure of the Coastal Commission to demand answers to their own “bait and switch” and site-comparison questions; and by the old CSD Board majority that voted to unnecessarily pound millions of taxpayer’s dollars into the ground weeks before a recall election. All these things were avoidable and/or unnecessary. The community is paying dearly for these governmental failures.

Now, we have a chance to take a deep breath, learn from the mistakes, and seriously consider a truthful oxymoron that sometimes the fastest, easiest way forward is to step back until you find the right path and the right direction. That’s the opportunity the “Blakeslee Breakthrough Plan” offers. Add in the knowledge from all parties that failure is not an option, toss in a guaranteed Prop 218 vote from the people who are going to be “buying” whatever project results from the proposal’s “structured process” of a fair and collaborative evaluation of solutions, then stand back and see just how “anti-sewer” Los Osos really is.

Oh, Please Don’t Tell Mother Calhoun That It’s Necessary To Explain THIS To Anyone . . .?

The Tribune reported on Wednesday, June 21, that the morning after the County Board of Supervisors met to vote to participate in the Blakeslee Breakthrough Proposal, “A well-known Los Osos sewer activist,” Al Barrow, went to Assemblyman Sam Blakeslee’s office and, according to Mr. Barrow, “criticized Blakeslee’s recently announced plan” to 19 year-old scheduler, Audrey Crescenti, who said, “He was so aggressive and agitated that I was frightened by his threat.” [to “attack the office”] and called the Highway Patrol, which is responsible for protecting members of the state Assembly and Senate.

Sigh.

As one who has been the recipient of Mr. Barrow’s aggressive agitation (i.e. being yelled at on the street by Mr. Barrow while leaving the old Bay News office and getting into her car) Mother Calhoun can certainly sympathize with Ms. Crescenti.

Sigh some more.

Apparently, someone in Los Osos needs for Mother Calhoun to explain something to a certain someone, so listen up:

Mau-Mauing is an old political tactic that’s beautifully outlined by Tom Wolfe in his hilarious book, “Radical Chic and Mau-Mauing the Flak Catchers.” But more than a political tactic, it is primarily a piece of theatre. And as such, in order to work properly, it must be GOOD theatre.

Mau-Mauing an assemblyman’s 19 year-old scheduler about legislation or policy is BAD theatre and makes about as much sense as Mau-Mauing the young lady behind the Gottschalks cosmetics counter because the refrigerator you ordered a month ago arrived with an ice tray missing. Cosmetic clerks don’t have anything to do with refrigerators; schedulers don’t have anything to do with legislation or policy.

Plus, harassing 19 year-olds is always bad form. Always.

Unless, of course, they’re your kids and haven’t done their chores yet.

Happily, %99.99999999999999999999999999999999999999999999999999999999 of all the people who live in Los Osos understand this. And I’m sure will join with Mother Calhoun in offering our collective apologies to Ms. Crescenti and the entire staff at Mr. Blakeslee’s office. .

Stop or I’ll Pull The Pin!

Fatal embrace or the start of a beautiful friendship?

I’m sure that’s the question the Board of Supervisors and the Sewerville Denizens of Dogpatch were asking themselves yesterday when the BoS voted 5-0 to: 1) Support legislation that allows the County, at its discretion and upon confirmation of conditions [outlined in the supplemental report] to assume responsibility for the design, construction and temporary operation of a community wastewater treatment system in Los Osos and 2) Approve the key elements of a legislative solution [the Blakesleee Breakthough Proposal or BBP] outlined in [that report] as required conditions for the County’s agreement to assume responsibility for this project; and 3) Approve the Los Osos Wastewater Treatment Project strategy and objectives included in [that report] in order to minimize County taxpayer’s risk and provide the highest probability for success on this project.”

The problem with the vote was to be found in some of the details of the attached report which outlined a series of steps the county would take IF the legislative Blakeslee Breakthrough Proposal actually happens and all the other parties come to the dance. Since some of the report seemed to have been written for the upcoming LAFCO dissolution hearings consideration and since County staff hadn’t gotten the various latest tech memos concerning the Project Update Report, some of the troubling details were most likely out of date. One solution to resolve any of those troubling details was for the CSD’s engineers and/or technical advisors and/or consultants to immediately get county staff up to speed and into the loop.

While there was some angry foot stomping after the meeting adjourned as well as understandable mutterings of distrust and cries of betrayal, one critical question was raised that requires serious thought on behalf of everyone on either side of the Sewer Wars and here it is:

IF the County has set up the same process as the CSD is already using to evaluate alternative systems and sites, a process which includes input from the community, utilizes a technical advisory committee, conducts a community advisory election on the top site alternatives [again with best guestimates as to costs], co-equal analysis under CEQA for top site alternatives, includes a supplemental Environmental Impact Report, considers input from the CSD on water management objectives, [THE critical issue], then includes a Prop 218 assessment vote by homeowners on whatever system emerges as the top candidate (again, with a best guestimate as to full cost), in short all of the things the CSD’s process is set up to do, then does it matter who’s in charge since the process will be the same and the citizens will be ultimately voting on what they want to buy and where they want to put it, which is what the Recall and Measure B vote was all about in the first place?

THAT is the question that needs to be answered. Since elected boards consist of human beings, one human answer on the part of the CSD must involve the human ego: After so much painful labor, nobody wants to see their “baby” taken away by a Wicked Stepmother. But, suppose Mommy is facing death by deliberate murder? Is there also not another strong human wish to make sure that Mommy’s last will and testament concerning her “baby” is written by her before the kid is taken away and she is pushed off a cliff?

And on the part of an all too human Board of Supervisors, with their own long, dismal record on all things sewerish, they are faced with a Hobson’s choice of their own: Get the baby and leave the bathwater OR do nothing AND STILL get the baby AND the bathwater AND the dirty diapers AND all the furious relatives AND their lawsuit-waving lawyers including RWQCB’s Roger Briggs screaming FINES!FINES!FINES!

So it comes down to the possibility now of a truce between two antagonists – one is armed with a machine gun, the other has strapped bombs on his chest and is holding the pin. The county is demanding power and authority over this project (who buys the ticket, picks the show) while knowing full well that the bearish folk of Los Osos have proven themselves fully capable (twice now) of getting to the box office, taking a gander at the choice of movie, then pulling the pin.

Talk about a dangerous date.

On the plus side, the county has a real incentive to – this time – get it right. The Regional Water Quality Control Board has a real incentive to – this time – get it right. The CSD has a real incentive to – this time – keep it right. And the Denizens of Dogpatch have a real incentive to – this time – get it right.

So, again, the question: If the process set up by the County is the same as that set up by the CSD, and that same process includes an advisory and assessment vote by the citizens who are going to be buying whatever is presented, then what’s the problem?

Distrust? That’s a two way street. So, maybe it’s time to take a page from Ronald Reagan’s SALT playbook: Trust . . . but verify. The county may have the gun, but the Los Osos Bears have the suicide bombs. Not a pretty picture, but one that may have a pretty ending.

The old recalled CSD Board, for human reasons, acted in such a way so as to ensure that the citizens of this fair burg would be financially punished for daring to disagree with them. That board majority failed, for human reasons, to put the good of the community ahead of their own desires. The result was a financial Gotterdamerung.

I hope that this time, the newly elected CSD Board, for human reasons, will make different choices . . . for the sake of the community.

So, step one of the Blakeslee Breakthrough Proposal is underway. It’s a fragile thing, one that can be destroyed by any of the stakeholders. As with all things Sewerish, stay tuned.

A Chat with Dr. Wickham

On Wednesday, June 7, there was an informal gathering of interested people on the lawn behind the Los Osos community center to listen to and ask questions of Dr. Wickham, who installed and is testing the onsite Pirana system at the firehouse. He was in town for more testing and sat down for a chat with whoever showed up. (The casual event was taped by several folks so may end up on one of the PEG channels.)

One of the most interesting things to me that Dr. Wickham said was this: Don’t confuse sewers with clean water. They’re not the same thing.

Sounds goofy, but on further reflection, it’s true. Sewers are installed so a town can grow, so you can pack more and more people into a smaller space. By collecting all their wastewater and taking it somewhere else to be treated, you can vastly increase density. And, as such, sewers are a vital part of helping communities grow in size – if they choose that route.

Clean water, on the other hand, is a separate issue. You can have sewers and “unclean” water (i.e. the Morro Bay outfall doesn’t discharge “clean” water by any stretch of the imagination, and the numerous headlines about sewage spills from traditional sewer collection systems point up the danger of “unclean” water going where it shouldn’t.) And depending on the “discharge” numbers allowed (7 mgl nitrates? 10 mgl nitrates?) it’s possible that a sewer plant’s collective “discharge” can end up less clean, for example, than “discharges” from a community using enhanced onsite systems at each house. So, there’s “clean water” and “sewers,” and they’re not necessarily one and the same.

The other issue that I brought up was the 2005 document, available online at the State Water Board, titled, “Role of Science and Engineering in Decision-Making Within The State and Regional Water Boards, Sept 2005,” prepared by William A. Vance, Ph.D. who was a consultant to the SWB. Rather gentle in its text, the list of 30 recommendations were really disturbing. The recommendations make clear that we now have regulatory agencies (Regional control boards) with the power to destroy whole communities but who often make decisions that have little or no science behind them.

One telling example, #1 and # 6: (1) “The state should foster, promote, fund and streamline a process to set up blue ribbon science panels that would provide advice and guidance to the Regional Boards on complex scientific issues . . .” and (6) “The regional boards do not have the resources to allow for peer-review of the technical merit of proposed scientific studies, or for the evaluation of the data or conclusions from such studies. . . .”

The Boards don’t have the resources to allow for peer review . . . .??? This is both alarming and sad.

As it pertains to Los Osos, anyone who attended (or watched) the ACL hearing or the CDO hearing will understand the glaring lack of “science” at work in what our Regional Board’s staff was doing and proposing. In addition, Resolution 83-13, written over 20 years ago, has never been updated to include new technologies that would give more workable options to solving the problem it claims to address – i.e. degradation of the upper aquifer with too many nitrates.

This is a serious lack. Suppose for example, you discovered a problem, went to the proper authorities and said, ”I can fix the problem with a scalpel, a toothpick, and some needle-nosed pliers”. And they replied, “Sorry. You can’t use those. All you can use is this big, clumsy, expensive rock.” A sane person would laugh out loud.

In the case of Los Osos, we’ve been forced to fix a problem that hasn’t really been identified (no nitrate studies done to pinpoint sources, one of the FIRST things a “scientist” would require – know what, where, how much, what kind, before trying to “fix” it, since the what or where may dictate the use of different tools.) and we’ve been forced to use a big, clumsy, expensive rock, i.e. a sewer that pretends to result in zero discharge by the year Whatever, even while being given a permit to discharge X amount of pollution by the very Board that’s dictating zero discharge.

In short, our Regional Board has confused a sewer with clean water. And the result is a gun to the head and one option only: Use the rock or die. It’s exactly the kind of unscientific scenario Dr. Vance’s paper points out must change if we aren’t all going to end up with costly, wasteful blunders all over the state.

It’s something I hope all parties who come to Assemblyman Blakeslee’s table for their “Breakthrough Proposal” confab, will seriously, seriously consider.

Stand Down! Time To Do A Little Homework

Assemblyman Blakeslee’s “Breakthrough Proposal,” (the BBP) is making the rounds to all the warring parties. Basically, he’s asked them all (politely) to shut up and sit down and read his opening proposals and to begin considering their own offers or counter offers so the delicate dance of negotiating can begin.

Let us hope it will be a real negotiation without one party later saying, “Oh, heh-heh, the negotiations weren’t really negotiations.” Time to get serious. Failure here is not an option.

And I hope everyone in and out of Los Osos who’s interested in the outcome of the Sewer Wars, will take the time to track down and find the various original documents that are now in circulation. Hopefully, the CSD staff, when they get some time, will post the various Official Documents on their web site. In the meantime, copies of Assemblyman Blakeslee’s “Final Framework Resolution,” the CSD Resolution 2006 (June 8), as well as the CSD-authorized letter to Paul Hood of LAFCO, discussing collaborative options on a possible partnering with the County on the sewer issues, and so forth, should be available at the CSD office.

Every party in this process will have their own “deal-breaker” non-negotiable items. Right now, the language is deliberately vague in order to give all parties a chance to “fill in the blanks,” the details of which will be subject to debate, discussion, modification, rewrite.

And since the community is a vital part of this process, I hope they will all get involved to make sure their input and concerns are part of the mix. In addition, I can only hope that the community will take care not to fall prey to any fear tactics or spun “Truth” being hyped by one group or another or misleading headlines or half-baked media stories or wild suppositions and What-Ifs. Instead, I hope they will take the time to track down the actual documents and read for themselves what they actually say, attend any and all meetings to hear and comment on what’s being considered, and pay close attention to what actually gets votes on , since what is officially done is critical, not merely what is said. This community will have to pay dearly for everything that’s about to be done or un-done, so it needs to pay attention and make sure it becomes an active and open participant in the process.

“Stand down” does not mean idle, apathetic snoozing. It means get prepared, get informed, get creative, get smart, and above all, get involved. To start, the Board of Supervisors will begin a review some of the conditions of this proposal on Monday, June 19, in the new BoS chambers, at the County Government Center, 1055 Monterey St, starting at 2 p.m. The meeting will include public comment. So, be there, or at least send in your snail-mail or email comments. The county's involvement at this juncture is critical so the BoS needs to hear from all of you.

No, It’s Not Déjà vu, It Just Looks Like It On TV, and other Sewerville News

I rushed out to the driveway this morning to grab the Tribune. Figured that Abraham Hyatt would have another headline about “all septic tanks must be replaced!” like he did when he apparently mistook a years-old Ripley Pacific proposal for THE proposal he’s working on now. But since the CSD meeting last night went until 11, his deadline would have passed, so maybe the headline will appear tomorrow. Or Mr. Hyatt may be waiting until the project report’s written update is sent to the CSD and public Tuesday or Wednesday.

Meantime, folks at the meeting got a gander at what Ripley Pacific’s project update has been looking at. First, since the cost of a regular gravity collection system is already known (the collection costs for Tri-W), he’ll be looking at “pressure systems” alternatives, i.e. STEP or STEG or STEP/STEG combined with enhanced onsite systems where applicable. Prices still to come, but the cost of pressure collection systems is waaaaaaay cheaper and less disruptive than laying traditional gravity collection pipes. The cost of the treatment plant will also depend on the type chosen. If it doesn’t involve tons of cement or fancy “wave walls,” and doesn’t use MBR technology, it should be cheaper than Tri-W. Ditto if whatever treatment system is chosen can at least be partially run by solar energy, thereby keeping operation cost down. And, if a pressure system is chosen, then the necessity for tank inspection and the cost of tank replacement will have to be factored in as well.

Second, the heart of any alternative that he’s proposing is the use of a so-called “ag exchange” program. In short, farmers within the same basin stop pumping “drinking water” out of the lower aquifer to irrigate their crops and in exchange they get a secure source of treated effluent, and since the cost of nitrogen fertilizer has doubled, the more nitrogen left in the effluent the better. They get nitrates in their irrigation water that can be used for their crops and sod and nursery plants and Los Osos “townies” then have the unused clean lower aquifer water left in the ground that can be used for drinking. There will also be treated wastewater for the various parks, golf courses, cemetery grounds and so forth. With a strong water conservation program (already started by the CSD), and proper water management, the Ripley Pacific hydrologist feels that Los Osos may be able to achieve it’s planned build-out without having to import state water. (Still in the future would be the ability to “purple pipe” tertiary treated wastewater to homes for use in home irrigation. Right now, it’s an expensive dream, but with water becoming a truly scarce commodity, in the future that “expensive” dream may become a necessity unless we all xerescape now with California natives, which isn’t a bad idea anyway.)

But the most interesting part of Ripley’s proposal on the collection system is the plan to phase it in by laying the main collection pipe through the “nitrate hot spots.” Since pressure systems are cheap, the cost of the length of pipe is not the key, but avoiding elevations requiring huge amounts of energy to pump the effluent up hill and up dale is the key. Therefore, on the preliminary map, the main collection system would snake around following the topography’s low spots (like water flowing downhill) while hitting the worse nitrate “hot spots” and bayside areas to pick up any possible bay “seepers” before heading out of town. (The maps should be in the technical report due out Tuesday.) The second main collection pipe would run down LOVR and join up with the first one, with a cross-town pipe hitting the other “hot area” near the central business area. The end result is a closed loop system that allows for redundancy, i.e. should a malfunction somewhere along the main line occur, the effluent could be routed another way in the way that if there’s a breakdown in the phone system, a call can still get to New York by way of Toronto instead of Kansas, for example.

Since pressure systems can be installed in shallow trenches using a directional boring method, they’re waaaaay faster (and cheaper) to install than traditional gravity pipes, which means that phase one could start collecting from the worst hot-spots first. Collection in phase two would then go after the other “hot spot,” areas while the need to collect from the third phase areas would be evaluated to see whether those homes would qualify for Prohibition Zone “exceptions” and could use an enhanced onsite system such as the one being used at the Firehouse and so forth.

Overall, the option being looked at has the planned focus being put on speed and ease of “hot spot” collection as having the biggest bang for the buck, nitrate loading-wise, while the long term goal will be the total beneficial use and reuse of water, since water, even treated effluent water, is not something that needs to be “disposed”of or “discharged,” but is, instead, a valuable . . . no, priceless . . . commodity.

An interesting note from Ripley’s hydrologist: The farmers/growers at the tip of the water basin are at the highest elevation which means when the aquifer starts into overdraft, (water rolling down hill leaves the top of the hill first) they’ll be the first ones hit, with their irrigation well production dropping even before folks in town notice a thing. The farmers in Monterey county (Salinas valley) found out the hard way just what an impact an overdrafted aquifer can have on their wells – early seawater intrusion threatening their ability to farm. They’re now starting in greater numbers to use a steady supply of “townie” treated wastewater for irrigation.

When it comes to a water basin, speaking of “being in this together” isn’t feel-good, soppy rhetoric. For better or worse, it really is being in this together.

Speaking of which, an appeal was made last night that all folks claiming to be interested in the community and all things sewerish need to get their input in early. The environmental review committee will be looking at all this as is moves along, but the community in general needs to also be guiding and shaping the project report by their input. Unless nobody cares one way or the other?


Oh, Noooooo, The Trees! The Trees!


I know, it will look like Tri W Tree déjà vu all over again, the big saws and chippers suddenly at work, shattering the peace and quiet of a morning, great trees falling to wood chips, the startlement of folks driving by, Whaaaaaa?????

Starting June 12, some more big, ginormous eucalyptus trees will be coming down on Los Osos Valley Road. Nope, it’s not a pre-emptive strike by the CSD, just the result of widening the road at Palisades Ave. According to an email from Rosmarie Gaglione, SLO County Public Works: “Later this year, the Department of Public Works will be installing traffic signals at the intersection of Los Osos Valley Road and Palisades Ave. A right turn lane will be installed on Los Osos Valley Road westbound onto Palisades Ave. Drainage problems at the intersection will also be corrected.

“In order to construct these improvements, several eucalyptus trees fronting the park on the Los Osos Valley Road will need to be removed. No one likes to have to cut down trees, but without doing so the Department cannot build the needed improvements within established standards for roadway and traffic signal design; standards which are much more stringent than those in effect at the time that Los Osos Valley Road was originally built and those trees were not quite as large.”

“Tree removal will begin on Monday, June 12, 2006. This work was approved as part of the coastal permit for park improvements. We will be conducting the required reptor/nesting bird surveys during the two weeks leading up to June 12. Stump removal will occur at a later date; however, initial work will be monitored by an archeologist as required.”

Any questions, call Rosmarie Gaglione, project Manager at 788-2318.

So, bye-bye bit trees. Again.

Measure B Bites The Dust, some more, sort of, maybe, oh, wait . . .

Judge Martin Tangeman ruled that Measure B “went too far by dictating decisions that should legally be made by” the CSD Board. The CSD’s attorney reported out of closed session that the Board “had no choice but to appeal the case,” that meanwhile, they would work on a possible settlement, but wanted to avoid paying Taxpayer’s Watch’s legal fees and would be filing an appeal of the case in the meantime

It is certainly a case that may end up filled with Irony! The previous Board voted to have the CSD go to court to block Measure B from getting on the ballot. That lawsuit made the legal argument that Measure B illegally “dictated decisions that should legally be made by CSD Board members.” That blocking suit failed to stop it from getting on the ballot. (The courts have repeatedly ruled against such blocking suits, preferring that initiatives, no matter how cockamamie, be voted on THEN challenged and dumped.)

After the election that recalled that board majority, the group known as Taxpayer’s Watch, privately filed suit arguing that Measure B “illegally dictated decisions that should legally be made by CSD Board members.” (The unanswered question: If Measure B was written so as to require that a sewer plant be built at Tri-W, (instead of putting limits on siting and requiring a citizen vote that could lead to choosing another site and/or project) would Taxpayer’s Watch have gone to court, claiming that the initiative usurped the CSD’s powers? In short, was the Taxpayer’s Watch suit a principled one (i.e. upholding a general right or principle regardless of any particular detail) or one tied directly to a particular sewer plant in a particular place that they wanted built that the measure was thwarting?)

In any event, the newly elected board settled with CASE, over the matter of blocking the measure before the election. (And paid a big time penalty for that original board’s blocking folly) Yet to be settled was the appeal of the case on the validity of the initiative itself, now that the election was over. Also to be settled was whether Taxpayer’s Watch had filed their case within the proper time allowed.

Judge Tangeman ruled that they had filed “.. as timely as reasonably possible,” and upheld his previous ruling that Measure B was illegal. Since I don’t think, in all the suing and more suing, an appeals court has heard the merit of the case, (only the attempt to block the measure from being voted on) will the appeal now get the substance of the case before a different judge?

Weirdly, while the case is on appeal, the CSD could write and vote on an ordinance nearly identical to Measure B, thereby giving themselves an ordinance that couldn’t be challenged in court under the same laws Taxpayer’s Watch used the first time.

I find this all very ironic. Such an ordinance would appear to be the same sauce, but sometimes the gander changes and becomes a goose. And vice versa.

Well, it’s Los Osos. Stay tuned.

Calhoun’s Can(n)ons, The Bay News, Morro Bay, CA, for June 7, 06

The Da Vinci Snooze

Since I had read a variety of the same books Dan Brown used as the basis for his best selling novel, The Da Vinci Code, I didn’t bother reading the book since I already knew all about “the greatest secret in modern history” that if revealed “would devastate the very foundations of Christianity.” Alas, for fans of shaken foundations, the hypothetical beans had already been spilled years ago in the book, Holy Blood, Holy Grail and Christianity remained as un-devastated as ever.

But I was curious to see the film to figure out how they’d make a thriller out of a “secret” that required so much endless ‘splainin.’ Although I kept dozing off, the structure was: (1) blah, blah, blah --detailed, endless “explanations” of theoretical hokum and muddled facts [Hint to film makers: the audience doesn’t need to know how or why The Hulk turns green. Just mutter something vague about an “overdose of radiation” then get on to the leaping and jumping and smashing], then ( 2) every 20 minutes, an armed, Mad Albino Monk leaps out of the shrubbery bent on homicide, which causes a few minutes of (3) comic Fire Drill racing around and then (4) everyone rushes off to some photogenic European local, say . . . Zurich! (5) Repeat the cycle, only next time, go to . . . France!

The real Da Vinci puzzle to me was why on earth some “religious” folks were taking all this harum-scarum as if it were real. Sure, it’s the summer silly season and the media and various pandering groups use each other during that downtime to brew up faux controversies to sell more papers. And, O.K, author Brown did make the conservative Catholic organization, Opus Dei, the locus of our Mad Murderous Leaping Albino Monk, and, yes, part of the discipline the members engage in does involve mortifying the flesh with small whips and thigh chains, but, that’s hardly new. Flesh mortification has been part and parcel of “Christianity” for a long time. In addition, official “monks” – mad, leaping or otherwise -- are not a part of the Opus Dei organization.

No, what was interesting to me was that all the harrumphing by certain “religious” folks, made me wonder just how many Christians are actually familiar with their own history? Are they aware that there were many gospels, some of which undoubtedly still lie buried in the desert sands, hidden there by various early Christian sects, waiting to be discovered just like the Dead Sea Scrolls.? That the wide variety of gospels known and used during the early years were eventually selected and edited and deliberately shaped by human hands and minds into the canon we are familiar with today? (A canon that has undergone myriad translations, retranslations, and mistranslations through the centuries?) That in the early centuries after Jesus’ death, there were a wide variety of “Official Christian” belief systems known and practiced, systems that were winnowed out in a long, sometimes bloody historical/political/cultural transformation that resulted in the product we know today? And that that this shaping and reshaping process continues even now?

Only people ignorant of the long historical journey their belief system has traveled (including the missing pieces, lost, stolen, buried, deliberately destroyed) could get worked up over the claims and suppositions that author Brown had such fun playing with – Knights Templars, grand inquisitions, missing scrolls, the bogus Priory of Scion, hidden secrets, the whiff of sex and scandal. This was supposed to be the heady brew that contained the blasphemous “secret” that would shake the foundations of Christianity?

As if? Haven’t we learned long ago that faith and fact have never been dependent upon one another? Still aren’t. Never will be, world without end, amen.

If anyone has failed to understand that crucial lesson, may I suggest they hum a few bars from Porgy and Bess’s “It ain’t necessarily so . . .”, then go rent Monty Python’s Life of Brian. Underneath all the Python’s outrageous tomfoolery, lies a serious message: Proceed cautiously when it comes to blind faith – things may not be what they seem. And in an imperfect world, it’s easy to get things muddled.

And, if it’s a swell thriller you want, go rent The Bourne Identity, I & II. It doesn’t have leaping albino monks, but it’s a great chase movie involving lots of photogenic European locales. And no theological blah, blah, blah to slow things down.

Uh . . . .

If you think the Tribune’s regular stories are often skewed beyond weirdness, you’ll love the Editorial that appeared Sunday, June 4, 2006.

“Los Osos needs a stand-down. All Sides need to compromise now before more money and time are gone.”

The editorial continues:

-- that “the regional water board should hold it’s $6.6 million in fines in abeyance while giving a realistic timeline for sewer completion.”

--that “concessions would be made on all sides. For instance, Taxpayers Watch would relinquish its all-or-nothing stance on the Tri W midtown sewer site; it’s a nonstarter.”

--“And the district board should exhibit real leadership by showing flexibility. How? Not nitpicking every item in a compromise.”

--“The state water board – if its goal is truly to clean up the community’s pollution as quickly as possible – should reinstate the $135 million low-interest loan.”

--“Contractor claims should be fairly resolved. And the lawsuits filed against the district should be dropped.”

Uh, o.k. Stand-down sounds like a good idea, but is the Tribune serious here? For example, were they aware, when they wrote the above, that the CSD had already voted 5 – 0 to re-apply for the State Loan?

--Or that the CSD, from day one, is and has been involved in the required contract resolution discussions with the contractors? In addition, before contract problems can be resolved, if there have been violations of law involved, I don’t think those can or should be ignored. Is the Tribune unaware that such allegations concerning one major party in this drama were sent to the Tribune (among other media sites. See this blogsite’s posting of May 16, 2006) and to date not a peep about any of these allegations has appeared in the Tribune. Instead we get the Tribune consulting lawyers about the CSD’s law firm charging 20-cents a copy for Xeroxing. Why not run the formal letter of complaint sent to the Construction Management Association of America past the Tribune’s legal consultants and see what their take is regarding allegations of any legal violations, violations that may be stalling contract resolutions.

--And if the Tri-W midtown sewer site is a nonstarter, why would asking Taxpayers Watch to drop their “all or nothing stance” be a “concession? Conceding to a nonstarter isn’t a concession, it’s simple common sense.

--And how can the CSD board show “real leadership” and “flexibility” by “not nitpicking every item in a compromise.” Compromise? What compromise? Is the Tribune unaware that the project update report hasn’t come in yet? And until it does, there’s nothing to “compromise” about . . . yet.

I’m delighted that Assemblyman Sam Blakeslee may be working on any legislation that could “bring the state, district and community together in finding a solution.”

As for the Tribune’s bottom line editorial advice: “Get a site and get on with it.” Uh, gosh, thanks for the advice, guys. But that’s what the CSD has been doing from day one, in spite of all those groups mentioned in the editorial diligently trying to block the way and/or break their kneecaps and “dissolve” them to death.

I thought those kinds of things would have been obvious, even to the editorial board of the Tribune, but I guess they didn’t notice.

Fun With Numbers

At the June 7 LOCSD meeting, Dr. Wickham, CEO of ABG Wastewater Solutions, gave an update on the field tests taken from the Pirana “Sludgehammer” system that was installed in the firehouse’s septic system.

While the tests were only field tests (a larger volume of water will be taken later and trotted to the labs for official testing), Dr. Wickham noted that because the RWQCB was reluctant to accept the possibility that denitrification takes place in the soil (despite studies to that effect done by the county years ago, which they dismiss, with no data to back up their dismissal) , he modified the system to see what kind of reductions he could get in the tank. In the field test the nitrogen content started at about 80-90 and is now about 20, in the tank. In the soil, twelve inches below the tank’s discharge pipe, the field sample is showing 3 mgl nitrates.

Why is that interesting? Because the RWQCB has issued a discharge permit for the old Tri W project that allowed for 7 mgl of nitrates in treated wastewater to be discharged to the soil Seven or three? Which is better? If you said, “Why, three is better,” you’d be wrong. The RWQCB, the board that has the word “Water Quality” in its name, won’t allow an inexpensive onsite system that delivers 3 mgls of nitrates. It is going to force you to buy and build a gazillion dollar gravity-fed behemoth sewer plant that finally delivers treated wastewater that contains 7 mgls of nitrates. You see?

Also, when the RWQCB rushed ahead with the ill-considered CDOs and proposed their mad pumping scheme, they were aiming to reduce gross, overall discharges by some 20% by removing the wastewater, in order to attempt to reduce the overall nitrate load. They had never bothered to check with Dr. Wickham to see if his system would deliver in-tank nitrate reductions far lower (and cheaper) without removing gazillions of gallons of water out of our overdrafted basin. Hadn’t bothered to check. Which illustrates once again that the Board’s science is simply shoddy and their research nonexistent.

Dr. Wickham further reported that he’ll be applying to the county for building permits for the firehouse and one other site for the Pirana system. Dr. Wickham observed that the RWQCB was trying to exert pressure on the county to stop this system from being given a permit. They claim it’s a wastewater alternative and so they won’t allow it, but in reality, your septic tank has already received a permit from the county, and installing a Pirana is no different than installing a new bathtub or updating your plumbing fixtures by putting in a low-flow toilet and etc, items for which you’ve already gotten your county building permit, so you don’t’ need a new one.

And science marches on. Too bad the RWQCB won’t join the march.

LAFCO’s dissolution hearing date changed.

Due to a public notification goof-up, the LAFCO dissolution hearing has been changed from June 15th to July 6th, in the BoS new meeting room, starting at 9 .a.m. The extra three weeks will also give the staff time to get the latest information on budgets and other items. It should be an interesting meeting, since it may be difficult to keep the Commissioners on track since various “trial balloons” regarding the sewer issue seem to be clouding the issue.

In her May 25 letter to Paul Hood regarding the “sewer options” he had floated previously, Gail Wilcox, Deputy County Administrative Officer, had to note that she was “unclear about your intent in terms of the two scenarios presented in your letter. Our understanding is that the actions of LAFCO can consider at the June 15 [sic] hearing on the petition to dissolve are:

1) Approve the petition to dissolve the LOCSD (subject to confirmation of the voters if a petition signed by 25-50% of voters is submitted); or
2) Deny the petition to dissolve the LOCSD; or
3) Continue the hearing on this matter for up to 70 days. “

In short, instead of trial balloons or getting derailed by sewer projects, LAFCO is supposed to be deciding whether the CSD is a functioning entity or not. If it is, they need to deny the petition. If it isn’t, then they’ll have to vote to dissolve it. And if they don’t yet have enough legal or financial info, then they should postpone the decision until hey have enough information to make a considered decision.

You’d think, but this is SLO county, where weirdness is king.



And, finally, it’s the Why we’re SHOCKED! SHOCKED! Department.

In a May 31st Bay News story on the LAFCO hearing, it notes, “Joyce Albright of Taxpayers Watch, the group seeking to dissolve the CSD, said they oppose having the CSD continue to have any power whatsoever to direct the construction of the sewer project. Their goal is to have the abandoned [Tri W] project built.”

What??? Awww, and here I recall Taxpayer’s Watch got their dissolution petitions going immediately after the recall election by telling us they were all concerned about the district not functioning, about the district wasting so much money, wringing their hands over the district spending taxpayer’s money on legal fees by suing the district themselves, thereby causing the district to waste even more taxpayer money on legal fees, on falsely implying that dissolving the CSD would protect the citizens from the CDOs, all that wrinkle browed deep and abiding concern about good government and now . . . NOW? . . . we find out that what it was REALLY all about was using LAFCO's dissolution power to set aside the recall and Measure B vote so they could get their rejected sewer plant put back in the middle of town?

Gosh, I’m surprised by such a cynical ploy. Aren’t you?