If you thought the recent CDO hearings for The Los Osos 45 were a sadistic mess that completely trampled on citizens’ rights, get a load of this. Some of The Los Osos 45 who were given CDOs appealed their case to the State Water Board. (That’s the entity that “oversees” the Regional Boards). Keep in mind, citizens cannot go into a “real” court of law to get protection from the “real” law UNTIL THE ADMINISTRATIVE REMEDIES HAVE ALL BEEN EXHAUSTED. So, here’s what the SWB is up to:
The RWQCB was asked by our Assemblyman Sam Blakeslee to “stand down” with the CDOs to give the County and community “breathing room” for the County to take over the wastewater project and get up to speed. NO! said the RWQCB. They had to had to rush-rush these CDO hearings through, including going non stop over Christmas, over New Years, moving goal posts, time-crunching citizens with impossible to meet deadlines, running them ragged, hurry, hurry, hurry!
Then, when the appeal on those few who were processed and issued CDOs was sent in, on time, with 94 reasons for vacating the decisions and a box of evidence and exhibits, suddenly, Oh, Gosh!, Oh, No, THESE WON’T DO. You have to separate out each document for each individual petitioner, and you have 5 working days to do all that and get them to us, said The State Water Board, Hurry! Hurry!Hurry! And if you need access to the documents, the docs are posted on the RWQCB’s web site . . . OH, WAIT, heh-heh. Uh, no, suddenly they’re . . . gone. Removed. Oh, gee, so how’s a person to do a document search? Oh, you’ll have to submit a Public Records Request and wait, oh, months? Weeks? Whatever, to get a reply.
Then, it gets better. Here’s section 2050.5 (b):
The State Board shall review and act on the petition within 270 days from the date of mailing the notification described in (a), unless a hearing is held by the State Board. If a hearing is held, the State board shall act within 330 days from the date of mailing the notification described in (a) or 120 days of the close of the hearing, which ever is later. If a formal disposition is not made by the State within those time limits the petition is deemed denied. These time limits may be extended for a period not to exceed 60 days with written agreement from the petitioner.
Count e‘m, folks, count ’em. 270 days. . . 330 days. . . plus 60 days . . . That’s how long the State Water Board can sit on these appeals, thereby preventing any citizen from getting anywhere near a “real” court of law to get redress of their grievances in anything close to “a timely manner.”
So, now check the date of the county’s 218 vote for the new sewer. Is it now becoming clear just what these CDO’s are really all about? And since citizens can get NO LEGAL protection of their rights until AFTER 270 days, 330 days, plus 60 days, (i.e. “exhaust the administrative remedies”) the citizens will get no legal protection of their rights. Unless a local judge understands this game for what it is and issues a “stay” against the CDO proceedings altogether. [Update: Just got an email noting that attorney Shauna Sullivan, who's representing some of the Los Osos 45 in their appeal, has re-filed in court with Judge LaBarbara and "served a default on the SWRCB for the quashing of the Briggs deposition and not making him available for hearings." So while the SWRCB may wish to try to delay and make all of this moot, the actions of some of these Los Osos 45 and Judge La Barbara may ensure that all the rest of the community will finally be afforded "real" protection from "real" laws in their appeal to a "real" judge in a "real" court. This is an effort that this whole community had better be paying attention to and help support since the outcome for the Los Osos 45 is the outcome for the entire community. Those few people are the template for the town.]
On the other hand, look how nicely this Administrative Process Schedule locks in with the County’s 218 vote.
Not that any illegal electioneering’s going on here. Oh, sure a Board member noted that what was needed to be done in Los Osos was to “change the political will” of the people and if and when this appeal gets to a “real court,” the whole issue will be moot since the critical vote would already have been taken so who cares if the entire case gets tossed out then– it’s real purpose will have already been served -- but heaven forefend that somebody suspect that electioneering’s going on here, using a regulatory agency to do it. Why, we’re shocked you would even think such a thing, aren’t we?
And if you’re wondering, Gosh, where’s the press? Neil Farrell, the Managing Editor of the Bay News, our little local paper that should be all over this story like white on rice, noted this in an editorial comment to a recent letter-to-the-editor: “I know for a fact the water board staff considers the Los Osos sewer situation to be a direct defiance of their authority.” That’s from the managing editor. What Mr. Farrell apparently doesn’t know is that the RWQCB is not mandated to punish citizens because some staff members feel their “authority” is being defied. Worse yet, the citizens of Los Osos were not “defying” anything; they were simply trying to move a sewer plant out of the middle of their town. That a managing editor of our local paper so misapprehends what happened in Los Osos and misapprehends what this Board is supposed to be doing explains why this entire process has gone so wrong and just how a regulatory board can run so badly amok without even the simplest check from a “watchdog” press.
So, if ever you want to see a regulatory system run amok, this is the case for y ou. Wolves guarding foxes running the chicken coops. Los Osos is the test case for the rest of the state. Looking for checks and balances? You’ve come to the wrong place.
But here’s a challenge for Assemblyman Sam Blakeslee. What happened here in Los Osos is a textbook case of how and why this system has failed and continues to fail. Who in Sacramento has the courage to start hearings into ways to get the SWB & RWQCBs back on track, make the institutional and procedural changes needed to prevent this sort of thing from happening in the future, get better funding so that the Regional Boards have the resources needed to run competently ( i.e. for a start, institute the recommendations found in the recent Science & Technology report issued by the SWB itself), and put in place vital checks and balances that can give better protections to prevent future citizens from being harassed and injured by a Board and staff bent on illegally and improperly abusing its powers.
As water issues become more important throughout the state, reform of the SWB should be a top priority to every person and every city and county in the state. If communities and government agencies think, Oh, it can’t happen to me, think again. It can and it will.