Calhouns Can(n)ons

And Now, Another Wrinkle

The following email exchange was in response to some issues raised by Lynette Tornatzky in response to a press release by PZLDF, which was itself in response to the Notice of Violation Letters recently sent out by the RWQCB. (Lynette’s comments also appeared here, April 02 8:06 pm. on a previous blog posting.)

Electioneering is one of those Monty Python issues. You know, the “Wink, Wink, Nudge Nudge, Know What I mean? Know What I Mean, Say No More, Say No More,” sketch? Everybody knows what’s going on but entities are free to skate up to and over the line with impunity because if they do it right, they have the benefit of bland deniability –“Why, I don’t know what you’re taking about, Your Honor. I’m simply stating FACTS. If these “FACTS” influence an election, why that’s not MY responsibility, Wink Nudge, Know What I Mean, Know What I Mean?.” Add in the Tribune as the water carrier for the RWQCB instead of watch dog, and you have the perfect storm of Wink Nudge electioneering. As for the Fair Political Practices Commission, Bwa-hahahahaha, Oh, Pluuueeeze.

Well, electioneering certainly is a worthy topic, so herewith . . . a thoughtful discussion and some interesting issues raised by Mr. Risch and Ms.Tornatzky.

Hi Lynette,

Your message (shown below) was forwarded to me, and I want to comment on it. It offers two key points, from which you say that you will not try to raise the level of fear of others:

1. The County cannot make the Water Board "do" anything.

2. The Water Board's repeated attempts to interject itself into the 218 vote.

Allow me to address the second point first. As you know, the only permitted actions of a government entity in connection with an election is to set the date and to conduct it fairly. The RWQCB has repeatedly interjected itself into the 218 vote and other elements of the sewer plan for Los Osos. The most recent example were in the Notice of Violations that includes two mentions of the Blakeslee law that possibly returns control over a Los Osos sewer system construction to San Luis Obispo county. Since that law mandates that a positive 218 vote is required for the County to continue the process of design and construction; since the Water Board illegally identified everyone in the Prohibition Zone as violators; and with the letter’s mention of the so-called settlements that are more draconian than CDOs; the Water Board's letter was utterly illegal and definitively threatening. That letter, following on other very public actions and announcements have raised the consciousness of many more innocent citizens who see themselves as threatened by the RWQCB.

To amplify on my phrase, "illegally identified everyone in the Prohibition Zone as violators," I should point out that the U.S. and California Constitutions both require specificity of charges. The Water Board has been blatant about suggesting that their statistical "evidence" (itself fraught with scientific flaws) is sufficient. Beyond three explicit deviations from its own rules for issuance of Notices of Violations, the letter makes it clear that only by development of the County plan, whatever it will be, can Prohibition Zone citizens avoid CDOs that potentially include the illegal "taking of private property." Furthermore, their claims of discharge violations have grown from statistical assertions of nitrates to "any discharge" into the ground.

As for the County not being able to make the Water Board "do" anything, that's not quite true. Perhaps a more accurate statement would be that the County can get the Water Board to STOP doing things. For one thing, the County is the owner of property in the Prohibition Zone, and thus, is a violator under the Water Board's specious definition. Secondly, under the Blakeslee law, the Country now has the legal responsibility of conducting a 218 vote. This vote is to implement a project under the aegis of Federal E.P.A. laws. Thus, the County has a legal obligation to force the State Water Board to "cease and desist" from any involvement in the election, if not to seek a way to mitigate the damage that has already been done. However, please understand that damage done is not the standard applicable to the Water Board's illegal actions.

And perhaps this is the central point of my remarks: The actions of the RWQCB don't have to have any effect on the electorate to be illegal. It is the action that is illegal, irrespective of the result.

Underscoring that point, it is clear to many that the Water Board isn't really concerned about the seriousness of their threats and violations of law. Simply put, it is a matter of timing. Irrespective of when the Water Board is doing now, illegal or not, if their actions produce a positive 218 vote, they will have accomplished their goal. If those actions are found illegal later, the decision will be moot. Again, the "ends justify the means" approach itself isn't legal. Indeed, it is possible, if not probable, that California's national leadership in environmental protection could be severely curtailed by the approach of this agency and its parent.

While your personal promise to separate the two matters is unique at best, it is essentially irrelevant at worst as a matter of law.

I hope that this offers some perspective on some of the issues your comments raised.

Norman Risch

Date: 4/2/2007 7:47:15 PMSubject: Re: Los Osos home owners: FYI: CITIZENS FOR CLEAN WATER poster

Thank you Katie, for keeping me in the loop.

It is unfortunate that the Water Board has been so unsure of how to approach the problem of our discharge that they have flip-flopped and ham-handedly dealt with this issue; but the County must not be stained by that taint.

As Paavo has said many times, the County cannot make the RWQCB "do" anything. And the County can't control HOW the water Board's actions may affect its 218 vote, either. We then, should make it clear to all, that the 218 belongs to the COUNTY and we should be solely influenced by what the COUNTY says about the 218.

I'm going to keep these two things as separate discussions and NOT further the fear that the 218 will be ruined by the Water Board's actions. Not everyone has concluded that and I don't want to give them that idea.

Only positive energy is sustainable.

Lynette Tornatzky

From: "RonandGail McPherson"

Subject: CITIZENS FOR CLEAN WATER posterDate: Sat, 31 Mar 2007 19:56:42 -0700

Residents in Los Osos have homes with legally permitted and properly functioning septic systems. Property owners in the prohibition zone are already paying a sewer assessment. The government is in control of the wastewater project for Los Osos. Individuals do not build sewer systems. It is wrong for the water board to coerce a 218 vote with threats of enforcement, and undermine the credibility of the County process. If you support clean water, regulatory compliance, and protection of property rights, you are in alignment with Citizens for Clean Water-PZLDF.

Please print, then post or hand out this message from Citizens for Clean Water. Neighborhood meetings to educate the community on the enforcement issues, and the NOV are being scheduled. Alan Martyn is handling the schedule. If you would like to host a coffee in your home call him at 528-0229 and set up the date and time.

A link to the RWQCB NOV http://www.waterboards.ca.gov/centralcoast/documents/LosOsosNoticeofViolati onInteractiveVersion.pdf

Water Board FAQ http://www.waterboards.ca.gov/centralcoast/documents/FrequentlyAskedQuestio nsreNOV.pdf

Make sure the community knows they are not required to do anything in response to the NOV. The FAQ's says property owners will be hearing from the water board in the next months. The Board is seeking "prosecutorial efficiency" and will likely attempt to put clean up and abatement orders within a settlement agreement to avoid the hearings and appeals of 4400 individual cases. The enforcement in Los Osos is also precedent setting for future action in AB885. NO PROPERTY OWNER SHOULD SIGN A CLEAN UP AND ABATEMENT ORDER. CAO's go beyond the Cease and Desist Orders and place property and legal rights at risk.

Feel free to write if you have questions-or come to a Monday meeting for more information. [Note: Meetings are at the LOVR Washinton Mutual Bank meeting room a 7 pm. Mondays.]

Most Sincerely,

Gail McPherson

Citizens For Clean Water