Letter from PZLDF
The following is a letter received from the Prohibition Zone Legal Defense Fund, regarding the Los Osos CDOs and all residents within the Prohibition Zone. I hope everyone in Los Osos living within the PZ will take time to read it. There’s some serious mis- and lack of -information going on out there , some serious muddlements occurring at the recent CDO hearings, the goal posts are again being moved around by the RWQCB, (check the wording of the latest post concerning up upcoming Jan 22 panel meeting) which changes the playing field, once again putting the residents in the dark and at a dangerous disadvantage. Caveat, Los Osos. Caveat.
Property Owners Didn't Blink; They Were Blindsided
Alan Martyn, Los Osos, President PZLDF (528-0229)
As members of the Prohibition Zone Legal Defense Fund (PZLDF)— a local volunteer organization—we thank the Bay News and Jack Beardwood for coverage on 12/13 and 12/20 of the Water Board’s prosecution of 45 Los Osos residents. We’d also like to offer some clarification on the difference between the Settlement Agreement (Settlement) and Cease and Desist Orders (CDO’s) the RWQCB is issuing.
First, the 25 or so LO residents who told the RWQCB they would sign an Agreement in lieu of receiving CDO’s may be surprised to know that the Settlement is an enforceable Clean Up and Abatement Order (CAO). A CAO is not much different from a CDO, and in some ways it’s worse.
Under CAO’s and CDO’s the RWQCB can impose fines of up to $5000 per day. However, under a CAO the law requires a mandatory minimum fine of $500 per day (Water Code Section 13350), unless the RWQCB considers special circumstances which it is not obligated to do. Although the Water Board originally included language indicating it would consider special circumstances, the final Settlement posted on its website did not contain the language.
Also, a CAO (the Settlement) allows the RWQCB much more discretion in how it deals with the homeowner and alleged pollution. It allows RWQCB or designated parties to enter a person’s property, to investigate the sources of pollution (or threatened pollution), to correct the violations as it deems fit, to charge the homeowner for all expenses, including administration costs, an to place a lien on the property if necessary.
If the RWQCB finds that property owners’ septic discharges have caused water from a well in the area to exceed minimum safe standards, the Water Board can require homeowners to provide replacement water. Theoretically—if the AB 2701 process fails and enough people in LO sign a Settlement—the RWQCB could build the LO treatment system and place liens on people’s property to cover costs.
Ironically, one of the most onerous aspects of the Settlement is the fact that it is a “settlement:” people supposedly have "agreed" to it (although they might have felt under duress). By agreeing to the Settlement (CAO), residents severely limit their rights to challenge any enforcement even if their home must be vacated in 2011. . For the most part, hearing rights are limited to the amount of the fines and liens, not whether they should be levied.
In other key ways, the CDO and Settlement are identical. Both require septic pumping and inspection every three years and hookup to a community system when it's available. Both require cessation of septic tank discharges by Jan. 2011 if the County does not approve an assessment by July 1, 2008; and both require the property owner to cease discharges within two years if construction of the project stops permanently.
Since both the Settlement and CDO potentially affect the value and use of property, homeowners are obligated to report them in transactions involving their property (e.g., sales and loans).
Because both enforcement measures hinge on County approval of a benefits assessment by July 1, 2008, people who sign a Settlement and people receiving CDO’s face potentially large fines and the possibility of having to vacate their homes, if the AB 2701 process hits the rocks or the RWQCB fails to approve alternative, individual systems for ceasing discharges.
One clear benefit of a CDO, over the Settlement (CAO), is that the CDO requires the RWQCB to provide recipients “…current information on successful and economical water quality control programs…and information and assistance in applying for federal and state funds necessary to comply with the cease and desist order.” (Water Code Section 13301.1). In other words, CDO language requires the RWQCB to support LO in its effort to find an economical solution to its waste water problems.
Any LO resident who agreed to sign a Settlement may have a last chance to reconsider. The RWQCB changed the Settlement at the December hearing, so people have a chance to review and agree to changes before signing an amended settlement. If you haven’t signed the amended agreement, there’s still time to consult an attorney, ask more questions, and change your mind if you desire.
Anyone with questions about the CDO's or impending Water Board actions against LO residents can contact PZLDF at 534-1913 and will be put in touch with volunteers who can help sort out the regulatory maze.
The vast majority of LO residents want a community wastewater system, and they support the AB 2701 process. They are also willing to have their tanks pumped and inspected voluntarily until they can hook up to a community system (requirements in the Settlement and CDO). Of course, individuals don’t have the ability to build a community system. Therefore, PZLDF considers the RWQCB actions to be unreasonable and unnecessary. PZLDF is also concerned that the RWQCB’s actions will threaten the AB 2701 process by putting unreasonable timelines and conditions on the County and LO citizens. To protect the rights of individuals as a group in LO, PZLDF has attempted to negotiate a fair settlement with the RWQCB, and we are in the process of appealing CDO’s to the State Water Board, and considering a court action for the future.
Because the RWQCB has stated that they intend to issue CDO’s or CAO’s to all properties in the Prohibition Zone, we urge property owners in Los Osos to make a generous donation to PZLDF to help those who are facing or will face the actions of the RWQCB. Checks can be made out to: Prohibition Zone Legal Defense Fund or PZLDF. Your donations will be used for the defense of the group of people who have received or will receive proposed enforcement actions by the Regional Water Quality Control Board. Donations can be sent to:
P.O. Box 6095
Los Osos, CA 93412