The following Press Release was sent by Citizens for Clean Water –PZLDF (Prohibiton Zone Legal Defense Fund). The BOS will be voting today to decide whether to send a letter to the RWQCB asking them to “stand down” so the county project can go ahead unimpeded, and I would urge all citizens who can, please plan to attend the Regional Water Quality Control Board’s hearing, Thursday May 10th, starting at 10 a.m. at their offices at 895 Aerovista Place, Suite 101 in San Luis Obispo.
Water Board Enforcement
Prepared as a Public Service by
Citizens for Clean Water/PZLDF
Dedicated to Clean Water and Citizens’ Rightsclass
The information contained within is not intended as a substitute for information that you may obtain from legal counsel.
Citizens for Clean Water-PZLDF
Dedicated to clean water and citizens rights
What is happening on May 10th?
The Water Board that will decide if your property and title will be entangled in enforcement actions is being held on May 10th .
The Board will consider the staff’s recommendation to mail every property owner in Los Osos prohibition zone a Clean up and Abatement Order (CAO) this differs from the process the first 45 residents went through. The Clean up and Abatement Order has no hearing, and if you fail to respond to the mailer it automatically becomes effective.
Why wasn’t I notified?
The Water Board mailed a ‘Notice of Violation’ (NOV) to Los Osos homeowners and businesses in April 2007. They posted the notice for the meeting on their web site April 26th.
What’s a Notice of Violation (NOV)?
Notices of Violations are the highest level of informal enforcement action. However, the Water Board did not follow their own enforcement rules, and failed to include the signature by the proper authority, or deliver them by certified mail.
Note: The NOV is one of many “progressive enforcement” steps that the water board has failed to implement properly when addressing the water quality issues since 1983. The water Board says the NOV was for information only, and no response is required.
However-the enforcement actions on the part of the Water Board now threatens every property and business in Los Osos.
What is a Clean up and Abatement Order- (CAO)
Clean up and Abatement Orders are meant for businesses and industry for urgent clean up of spills and accidental releases of pollutants that threaten water of the State. CAO’s are enforcement tools used in accidental spills or abandonment of property that makes clean up necessary. The water board steps in with extraordinary powers to contract for clean up as they deem necessary, and bill the property owner for ALL costs, or lien owners assets for payment.
The enforcement policy notes CAO’s require direct evidence of each property’s pollution, and that immediate clean up is required to protect waters of the State. CAO’s is only appropriate when the pollution is NOT a long-term permanent condition. Solutions that require costly infrastructure, and financial assistance, such as a sewer system and treatment plant should use Cease and Desist Orders. NOT CAO’S.
Clean up and Abatement Orders are not appropriate for the situation in Los Osos requiring a multi-million dollar community project.
Can enforcement cause me to lose my home?
Yes, the enforcement measures proposed are on your property, and meant to pressure your vote for a sewer. If placed on your home the orders could be used against you and lead to loss of your home.
Should I sign a settlement?
NO! Do not sign a settlement-or voluntarily accept an enforcement order on your property. The Clean Up and Abatement Order and the SETTLEMENT are nearly identical. The settlement is an enforcement order. The risk of loss of your property remain the same.
Although the settlement offer may seem benign, and a way to avoid hearings by showing the water board “cooperation,” the settlement Clean up and Abatement Orders (CAO) severely limits your ability to defend your rights, to challenge future fines, or to oppose additional enforcement. The CAO settlement could indeed lead to fines and the loss of your home.
Are CAO settlements actually worse than CDO’s?
Absolutely- Both the “Settlement” Clean up and Abatement Order, and the Clean up and Abatement Order deprive you of property rights, by declaring you a “gross polluter” and your property in need of clean up by the state.
Cease and Desist Orders do not have “emergency powers” attached that deprive citizens of their constitutional rights to due process. A Cease and Desist Order (CDO) requires at least one hearing before the full board, and a showing of proof with specific evidence before being issued, and more importantly, the order can be appealed. Any assessment of fines or liens on homes can be challenged in the courts.
A settlement places homeowners in the very worse position if the County process under AB 2710 fails. A “Clean up and Abatement Order” in the form of an agreement indicates voluntary agreement with any possible outcomes the water board chooses.
What else do Clean up and Abatement Order do?
CAO ‘findings’ list you and your properties as a known polluters. The CAO includes elements that allow the water board to conduct a “clean-up” as they see fit and you pay the bill. CAO’s can be changed by staff as condition change. They can come onto your property unannounced, and they can charge you for ALL the costs associated with a clean up and enforcement against you. You even pay the costs for the processing of a lien on your home to ensure payment.
There are minimum mandatory fines of $500 per day, and fines up to $5000 per day that can be assessed. There is a provision to charge you for replacement water if the wells near your home are contaminated. (The settlement CAO terms state staff will ‘recommendation’ lower fines of $100/day or $36,500/yr).
Why issue enforcement orders now, isn’t a sewer project in the County’s control?
Good question. AB 2701 was approved on September 18 2006. Assemblyman Blakeslee brokered an agreement with the District and County with certain enforcement input from the Water Board. The new law then allowed the transfer of primary responsibility for the project to the County. Within the six legislative elements included in AB 2701 is the “abeyance of enforcement actions.”
The Water Board has not abided by this promise, and actually escalated enforcement by prosecuting the first 45 homeowners, and tying further enforcement actions to the 218 vote outcome.
The Water Board is now threatening 4,400 more homes and businesses Clean up and Abatement Orders is counter-productive to a fair process under AB 2701, and by any constitutional measure.
What happened to the first 45?
The prosecution of the first 45 randomly selected property owners and renters began over a year ago. (January 2006) After hundreds of hours and many tens of thousands in wasted taxpayers money, most remain in appeal.
The first four cases were heard in December 2006, and seven remain to be heard. At that time several homeowners signed a settlement without understanding the full consequences or risks.
In January 2007 the Water Board heard two more cases with Shaunna Sullivan assisting in the defense. To date, the Water Board has yet to rule on these cases.
Appeals were filed by fourteen homeowners who were issued Cease and Desist Orders or who are challenging settlements. The appeal lists at least 94 reasons against enforcement CDOs and the “settlement” Clean up and Abatement Orders (CAO). The appeal is available for review from Citizens for Clean Water upon request. www.PZLDF.org or contact Sullivan and Associates email@example.com.
Is my Home really illegal and I am breaking the law?
The water board amendment to the basin plan (83-13) was not intended to result in zero discharge, or condemn homes. You purchased your home in good faith and the sale was legal. There was no disclosure by any agency that your home was illegal, or that you would be breaking the law to live there, or that your home’s value was threatened with condemnation because of government failure to build a sewer.
Why am I getting Clean up and Abatement and enforcement notices if I can’t do anything about the building a sewer or fixing the water problem on my own?
The order requires you to hook up to a sewer that doesn’t exist. You are doing all you can by having a legally permitted home with a properly working septic system. You are already paying a sewer assessment on your property. You are required to hook up to a sewer system within 60 days of its availability.
Citizens for Clean Water - PZLDF considers individual enforcement to be counterproductive and abusive since you cannot build a community sewer system by yourself, and enforcement allows the Water Board to take action against your home if a 218 vote fails and you fail to cease discharge by 2011.
What is “Density”, and why was Los Osos allowed to develop without a sewer system if it was needed for the last 30 years?
Standard government code practices since before the 1970’s required a minimum one-acre parcel for development using septic tanks. The practice of the County and Water Board allowing exceptions of up to 8 houses per acre caused today’s problems.
Unfortunately, in 1983, an option to allow more density - or houses per acre - was allowed and encouraged by both the County and Regional Water Board, and since then, there has been a continued absence of Water Board oversight in the legally required agreements with governing agencies. The County Memoranda of Understanding for permitting septic tanks was the first step in the failure of appropriate planning for the past 30 years in Los Osos.
After 1983, how were even more homes and septic systems permitted, built, approved, and resold if the discharges were” illegal”?
There is still a legal question about our septic systems being legally approved yet now discharge is being characterized as illegal. All septic systems are legally permitted and homes are fully approved. There are disputed findings as to the extent of pollution from the septic systems, the origin of high levels of nitrates, and the best solution for the septic discharges.
A septic tank maintenance district was required by code (83-12) to monitor the septic impacts upon the water quality and prevent poor development practices. This was never implemented to conduct water monitoring and prohibiting building. The discharge of nitrates is the only constituent within the septic tank discharge that is not in compliance according to the basin plan. This is what the water board contends is “illegal.” However, the recent enforcement actions have expanded the scope to prohibit discharge of any kind within the prohibition zone of Los Osos.
A moratorium established in 1988 appears to have increased County fees and property taxes, but failed to prevent over-development in the Los Osos basin. Overdraft of the water supply and salt water intrusion is another result of poor County development practices which has become a much more serious concern than nitrates.
Why wasn’t a Sewer System built years ago?
A project was proposed in 1983 based on development projections for a population of 30,000. The County government did not build the plant, but allowed nearly 1000 more homes to be built. Yours may be one of these. Ongoing complications in providing a satisfactory project through the 1990’s culminated in the Community Services District formation in 1998.
What responsibility does the County, the Regional Water Board, and, most recently, the Community Services District have in this situation?
No government agency has ever admitted they failed in providing the Los Osos community with a community sewer system. The Community Services District was established in 1998, but it was unable to develop an affordable and technically adequate project of the size and complexity required. The project costs quadrupled, the location was opposed, and the CSD directors was recalled, however, they indebted the community by starting the controversial project just prior to the recall election.
The County has several options for lower cost systems which are available to Los Osos. Perhaps the most important piece of any system is a water management plan. Previous plans failed to address and fund this important benefit. They also did not consider the “sustainability’ of a project-the ability for citizens to pay future costs.
Can they fine me if a 218 vote isn’t passed?
Both the CDO’s, the blanket CAO”s and the Settlement CAO’s are poised to fine you if a project does not move forward. However, Water Code 13360 states the Water Board does not have the authority over what kind of project the community chooses.
“. . . no discharge requirement or other decree of a regional board or the state board or decree of a court issued under this division shall specify the design, location, type of construction, or particular manner in which compliance may be had . . . . ”
Further, it is illegal for the Water Board to use enforcement to drive a certain project, such as the mid-town one already rejected. The County is working to develop an acceptable project, to implement a 218 assessment vote to approve funding, and to ultimately deliver an acceptable project.
If you have an enforcement action in the form or a CDO or settlement in place, you will have until July 2008 for a project assessment vote to be passed by the County. If that fails, you must provide the Water Board with a plan for compliance to stop discharge from you home by 2011.
Might enforcement actually be illegal “electioneering” through intimidation?
The RWQCB is allowed to present truthful information regarding facts pertinent to a vote for or against a proposition. However, it must be fair, impartial, factual, and funded by explicit legislative authorization. The 218 vote is simply a funding assessment. It is clear the community must determine the project without coercion or intimidation. In this case the water board has developed enforcement consequences based on a vote, because the enforcement actions are tied to the 218 vote to reach compliance, PZLDF contends that enforcement against the 45 individual residents, as well as the Notices of Violation, could be considered coercion of voters through intimidation. That is illegal. Further the expenditure of public funds to intimidate voters is unethical and forbidden. For more information, go to the FPPC Ethics Training website (http://www.fppc.ca.gov/) for State Officials.
"Enforcement ends with compliance...compliance is dependent upon a project...and a project on a fair process..."-----Citizens' for Clean Water-PZLDF
What options does Los Osos property owners and residents have to comply with the Water Board?
First, the County 218 assessment vote is NOT A DOOMSDAY VOTE for your property, and the County is not presenting it as such.
Regulatory compliance can be achieved in several ways. 1)By the County, 2) by the Los Osos CSD, 3) by a Private corporation, 4) or individually through advanced onsite systems.
1. Right now the community is working through the County led project.
2. If the County fails in delivering a project for any reason, the project will transfer back to the District.
3. Should this occur, as provided in AB 2701, the LOCSD would likely implement the district’s plan before the County transfer. This was to proceed with Ripley Pacific’s project proposal (http://www.losososcsd.org/wwp/index.html) which would also require a 218 vote.
(The project identified should currently be among County selection options.)
4. Another option available immediately to the community is to pursue a privatized project plan. One company was presented to the LOCSD in October of 2006 by Orenco Systems Inc. http://www.orenco.com/
(As a public-private partnership, and should currently be among County selection options.)
5. If there is no community project on the horizon after July 2008, property owners will be required to install an onsite treatment systems that meet the Water Board waste discharge requirements.
There are several commercially available systems which are permitted in California which cost between $15,000 - $40,000 per home. Neighborhood associations could contract with private firms to build common systems.
For those interested in onsite system compliance, you can get more information on approved systems from the water board or www.cowa.org or Citizens for Clean Water PZLDF.org who can provide additional links and contacts.
What can I do to protect my rights?
1. SEND MAIL AND EMAILS TO THE WATER BOARD in response to the Notice of violation and proposed enforcement CAO’s-to Jeffery Young c/o firstname.lastname@example.org copy to email@example.com
Tell them the actions are counter productive and to vacate the enforcement against the 45, not to pursue blanket individual enforcement against the community, and to support the County process and the community to develop a successful project.
2. CLEAN UP AND ABATEMENT ORDERS –Attend the Water Board meeting on May 10th
Speak out against blanket enforcement CAO’s and counter productive electioneering, and coercion.
DO NOT SEND OFFERS TO SIGN AGREEMENTS OR SETTLEMENTS (CAO’s) this could adversely affect your ability to defend yourself and property in the future.
3. Keep abreast of the county’s progress toward an acceptable project. http://www.slocounty.ca.gov/PW/LOWWP.htm
4. Participate in the process and let your wishes be known concerning an acceptable project, type, acceptable costs and location.
5. Protect the process from the county’s actions being influenced by water board enforcement- coercion and intimidation tactics. Notify the county you want a fair process-Your representative for district 2 is Bruce Gibson. email: .firstname.lastname@example.org
6. Contact your representatives about your concerns.
District 2 Supervisor Bruce Gibson
Room D-430, County Government Center
San Luis Obispo, California 93408 (805) 781-1350 Fax
(805) 781-5450email: .email@example.com
Palm Street, San Luis Obispo, CA 93401
Congresswoman Lois Capps
San Luis Obispo 1411 Marsh Street, Suite 205 San Luis Obispo, CA 93401 Phone: (805) 546-8348 Fax: (805) 546-8368
Peter J. Visclosky (IN), Chair
Dixon Butler, Subcommittee Clerk Room 2362-B Rayburn House Office BuildingWashington, DC 20515Phone: (202) 225-3421
7. Learn more about your rights, the regulations and legal help available.
Pacific Legal Foundation3900 Lennane Drive,Suite200Sacramento,CA95834(916)4197111(916)4197747(fax)firstname.lastname@example.org
ACLU of So Ca.
Executive Director:Ramona Ripston
1616 Beverly Blvd.
Los Angeles, Ca 90026
8. Attend PZLDF informational meetings on Monday evenings at 7:00 pm at Washington Mutual Bank.
9.Join Citizens for Clean Water-PZLDF. Donate to fund the Legal actions either to PZLDF or directly to Sullivan & Associates.
10.Protect your property rights by being proactive, and by donating your time, money and resources.
COME TO MEETINGS
HELP WITH FUNDRAISING