Friday, April 13, 2007

A 218 Letter From Steve Paige

The following email was sent to Rob Miller of the Wallace Group by Los Osos resident Steve Paige. He has raised issues concerning the assessment district and the general benefits vs special benefits for the sewer project. If he is indeed, correct, that the PZ itself may create an awful legal mess down the road, then I would suggest that NOW is the time for the TAC and the County and the RWQCB to face this problem head on. There are many sound reasons to revisit the Basin Plan/PZ issue. This is one of those reasons. As for Steve’s observation regarding global warming, energy costs and water shortages and building a system for the 21st century, not the 19th, I can only say, Amen. Amen, too, to his claim that he believes the County “gets it,” vis a vis environmentally smart systems. I can only hope he’s correct. Next up for some future 218 discussion: How do you financially separate Water from Wastewater in a scientifically indefensible PZ that’s in a water basin with multiple purveryors? That’ll be a toughie. Posted with permission.

Hi Rob,

Thanks for coming by the other night for PZLDF and suffering my questioning. I have some facts and personal observances that I think we can both agree on outside the politics and rancor of the Los Osos 218 assessment debauchery left over from the State getting cold feet about their bogus SRF loan. Can't fool me. You either for that matter.

[ . . reference to his PC 13269 Waiver request supplementary agreement filed with the RWQCB . . .] because I have a list of people that agree with me about proportional discharge vs. Zero Discharge and it's relationship to "Environmental Justice". They are all willing to fall on the 'proportional discharge' sword.

The RWQCB has not met Cal. G.C. 65040.12 (e) in that the RWQCB3 discriminates against an income group defined as the owners and equity holders of lesser sized properties in the P.Z. vs. properties exempted by the RWQCB because the properties are over one acre. That dotted line is a killer for the RWQCB3 and 'regulatory takings' issues. Why else would they sit on my waiver and risk me invoking Cal GC 65940 etc.

Their actions suggest to me that there is fear amoung the prosecution team of a challenge to the 'zero discharge' order for 'regulatory takings' on several points of law. Raising those points during TAC hearing phase will be necessary for establishing a later legal challenge. It could be rectified in a later legal complaint. No hurry. The issue would effect the 218 scoping initially or wreak havoc with the tax structure after the fact.

In Burbank vs. SWRCB (2005) (35 Cal. 4th 613, Rptr.3d) the Court sent the SWRCB back to study the "economic considerations"of not allowing any trash in the concrete lined Los Angeles river from storm drains. A near impossible task, as is the zero discharge order for smaller lots in the Los Osos PZ. How will it pan out for the RWQCB3 when this issue reaches the appellate Court level? Energy consumption, greenhouse gas emissions, and APCD issues, take your pick, will be the final nails in the RWQCB's zero discharge coffin, along with 'Enviormental Justice' issues. Zero discharge is a eminent domain claim no brainer....

In a further act of administrative passion theRWQCB3 left out the mandated 'takings' study. Under E.O. 12630, Regan, 1988., the RWQCB is advised to 'study' the regulatory takings impact of their zero discharge enforcement. They have not. What would be the downside for the County if property owners within the PZ were to prevail in a 'regulatory takings' class action suit over zero discharge and allowed the more equitable 'proportional discharge' pogrom outlined in my Settlement agreement or be compensated? 5000 times what amount for compensation if we loose the use of our property? I can smell the oiled burled walnut in the Federal Supreme Court already.........

The County could retroactively owe millions of dollars in assessment compensations to the PZ landowners because of the miss-scoped 218 vote based on 'zero' discharge based on some fairytale Valhalla 2011 zero discharge my-property-is worth-nothing date. I tried to bring the proportional discharge debate to the attention of Harvey Packard with my waiver and remedy for them, (see letter) the Environmental Justice issue. I like Harvey. If my waiver was allowed, anyone could have an avenue to comply (using proportional discharge and Nitrogen sequestering) by copying me in a SEP program as a temporary mitigation before the sewer is built. 'Zero discharge' is the shot gun at the wedding. It's forcing a very expensive Sewer Project on a community that has 36% of it's families on the school lunch program for low income parents (4% above the County average), and 24% of the community on fixed income social security. I think You need to know my motives. I believe in economic justice for people like myself with a passion.

I based my request to the RWQCB for proportional discharge on sound reasoning and matters of fact. The present parallel enforcements of the CDO's and allowance of 375 GPD discharge on properties over one acre is a logical paradox. Under these conflicting orders you could have a one acre property in the PZ allowed 375 GPD plus (as up on Highland drive), and could have a .99 Acre parcel next door with no discharge allowed. In essence you are creating two economic classes of enforcement. People with properties over an acre can simply put in a normal septic system and lesser properties, even the one described above, have to put in a 'zero discharge' system at many times the expense and in small lot cases, even impossible at any expense. So what is the 'taking'?

The 'taking', is the commensurable difference in cost between 'proportional discharge' by lot area vs. the zany 'zero' discharge order. With little relationship to other basin plan orders and orders for outside the PZ the 'zero' discharge order causes financial harm by manipulating the scale, energy consumption, infrastructure, and cost of the basin nitrogen contamination cleanup impacting a particular economic class defined by income and equity. Lesser properties are given the burden of compliance while properties over an acre are doing nothing.

Which brings me to the launch of your engineer's report. If you took the whole water district instead of the PZ and applied proportional discharge as a principal for defining special benefits based on property size, zoning , and distance to groundwater; you would end up with persons who were creating the largest impact on the aquifer paying the most. The PZ line would vanish. The hydrologic cycle would be represented in the revised order. We are drinking the water we recharge with. We would be living within our water means.

The County is on a fools errand to think that State water will bail out Los Osos. Greenhouse warming will destroy the winter snowpack in California leaving the State in perpetual water crisis just a few years out (OK to count on one hand). We need to live within our means, right here, right now. It is the Counties responsibility to 'Smart Growth' the Sewer/ water issue and create linkage between discharge and water use as I propose in my agreement. The 'smart growth' lip service [ . . . .] laughable when you look at the 16% per annum Natural Gas supply collapse now occurring in Mexico's biggest oilfield. Functionality is directly related to energy consumption. End of story. Proportional discharge allows you to do more with less and puts on the table solutions that can be energy related and blackout or brown out hardened. Any other solution is a rear thinking dead end in a 1950's sewer reality.

I love the County government. These are the people that allowed me to build the first Hot Air-Pebble Bed Solar House in Los Oso in 1976. And allowed me to use 80% recycled materials in a house for Bill Walther in 1989 by Lopez Lake. They see the light. Ken Hagard of the San Luis Sustainability Group and myself just made the list with a simple Passive Solar House in the secondary housing competition. I think the County really gets it. I know they are more capable of building a sewer that is more energy efficent, resource comprehensive, and cost effective than the Tri-W 218 yahoos. Just because the bar is lowered doesn't mean that you can get lazy or greedy. If you scope the benefit using propotional discharge, you bring the project into the 2100 Century and make it relative to our around the corner, high efficency reality.

My first 218 question then is how do you scope the project given these contingencies? Or do you just ignore them.

Your Friend,

Steve Paige


Steve said...

Sounds like Steve might only be satisfied with every legal issue relating to the PZ resolved before he would be happy with the County making any decisions. Maybe I'm reading too much into it here, but that's how it sounds at first look.

In any case, that's not how government works. If each and every branch waits for every issue in every other branch to be resolved first we would never make any progress on any issues at all.

So ... what should the County do? They should make an attempt to do the best job determining the site and technology to get Los Osos a sewer ... just like they've been ordered to by AB2701.

We need a sewer and WWTF and the County is willing to tackle the job. Good for them!

The County will not do a perfect job in the eyes of everyone, but they will try to pay attention to any factor which is likely to impact the project in any way. If there is a lawsuit over the zero discharge order as an illegal regulatory takings it would pay for the county to pay attention and if there is a reasonable chance that such a suit would win (sounds like quite a stretch to me ... asking people to clean up the mess they've created or bought in to is quite common in the US) the County could modify their timetable and/or project goals to account for that possibility. Nothing more could be expected or done ... unless you would only be happy with the County ignoring AB2701 until Steve Paige is convinced that there are no legal issues.

Anonymous said...

Apparently Steve doesn't know that the PZ has already been litigated and found to be valid. The issue was settled back in the mid to late eighties.

FBLeG said...

An Anon said,

"Apparently Steve doesn't know that the PZ has already been litigated and found to be valid. The issue was settled back in the mid to late eighties."

Can someone point me to the court ruling? I am under the impression that since there has been no enforcement action so far, a real court has not actually ruled on the legitimacy of the PZ.

Anonymous said...

The PZ was litigatged in the 90s, but I cannot recall who the party was that challenged it.

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