We're All Los Osos Now, Baby

Awww, Gawwwdd. It was simply too, too perfect. There was the April 29th “Viewpoint” in the Tribune, an earnest Cri de Coeur from Atascadero Mayor, Tom O’Malley and the city council members bewailing the upcoming Regional Water Quality Control Board’s May 5th meeting.

Remember the RWQCB’s “stealth basin plan update?” Wherein they sent around post-card “notices” with lots of argle-bargle printed on it, post-cards that were more than likely to end up in the trash with the junque mail. So, naturally no residents would show up at the update meetings, so whatever the RWQCB wanted to put into the plan went into the plan and now, here’s the stealth plan, kaBloom! rolled out and ready to be voted on.

And the Mayor is howling. Claiming that the regulations would impact all properties in the city that use septic tanks. That the ordinances would impinge on property rights by prohibiting “secondary residences on parcels less than 2 acres,” require the city to “identify and address areas of potential groundwater that may be degraded by septic systems,” “verify that existing and proposed systems are constructed and maintained in accordance with strict standards which could include inspections,” possibly call for more extensive and expensive septic systems, and “prohibit self-regenerating water softeners.”

Notes the Viewpoint:” “We have steadfastly opposed the regulations; and in addition, the Atascadero Mutual Water Company has tested groundwater near all wells and found no issue with Atascadero’s water quality. The City Council believes strongly that the proposals are not warranted” . . . and that “There have been an insignificant number of failures of septic systems, and this magnitude of increased regulatory oversight is unnecessary.”

Bwa-hahahahah. Awwww, poor babies. I have two words for them: Los Osos.

And then, on May 1, came another Viewpoint, this one from Richard S. Quandt, president and general counsel of the Grower-Shipper Association of Santa Barbara and San Luis Obispo Counties. His clients – farmers in both counties – have discovered that the RWQCB’s two-year’s work on enforcement of the State’s new rules on groundwater pollution from agriculture, was continuing it’s public comment hearings here in SLOTown, and apparently a whole lot of farmers (and their lawyers) were not amused.

Wrote Quandt:” “Board staff has attempted to justify this regulatory expansion by presenting facts that, when examined, are found to contain omissions, anomalies and unfounded assumptions.

“Instead of creating a complete and science-based factual record upon which to base public policy recommendations, board staff has already determined the direction and is advocating for its position by manipulating information.”

And, “Poorly thought-out policy recommendations take place when government regulators isolate themselves and refuse to vet their predetermined policies with those who will be subject to them. Is it any wonder that board staff agreed to a total of just two meetings with the agricultural working group in the past 24 months?”

Well, Mr. Quandt, I have two words for you, too: Los Osos.

I mean, this is the same staff that gave us the Mad Hatter Tea Party and Torquemada’s Auto De Fe “Trial” of The Los Osos 45. This is the same staff and board that singled out, targeted and slapped CDOs on 45 Los Osos citizens, claiming they were doing it in the name of water quality. But the CDOs did not stay with the property’s septic tank. When the CDO holder sells and moves, the CDO goes away. What homeowner digs up his septic tank and takes it with him when he moves? Right. Nobody. So this CDO was never about “water quality,” or even septic tanks. It was an illegal act of electioneering and a complete abuse of regulatory power used to terrorize a handful of people as an example to a town in order to influence their vote.

And now Atascadero and the good farmers in Santa Barbara and SLO counties are going to find out what Los Ososians have known for years.

Mayor O’Malley meet Mr. Briggs. Mr. Briggs, Mr. O’Malley. Mr. Quandt? Mr. Briggs. Mr. Briggs, Mr. Quandt.

Too delicious a scenario to miss, which is why I headed into the Aero Vista St. RWQCB meeting room, which was packed. Two board members recused themselves on account of they owned irrigated land and the Board is short one member, so there wasn’t a quorum. Which meant there could be no final vote, only a recommendation from the remaining panel.

Since the meeting was a continuation of the one that started in Watsonville, it started in the middle of public comment from a whole bunch of irritated farmers asserting the usual:

-- objections over process, confusion over what would or would not be admitted as testimony, a constantly changing draft report making it impossible to comment sint it was always a moving target.

--the proposed ordinances requiring another level of regulations to help clean up nitrates in groundwater caused by ag practices shouldn’t just target farmers but should it everyone

-- the program shouldn’t be mandatory, should be voluntary. The regs are a one-size-fits-all, which means they won’t fit anybody. The reporting rules are onerous, the staff doesn’t know what they’re talking about, the program is setting farmers up for failure after which they’ll be prosecuted.

-- the science being used is based on inaccurate info, the staff report seems to behave as if nitrates in groundwater are a point source issue, not a non-point source issue, there are too many anomalies, incorrect data .

--the cost of this program will be onerous and may take ag land out of production or cause farmers to go out of business.

If you’re a Los Ososian, all of this will sound sadly familiar.

But the best discourse of the day came from Mr. Edward Hard, from the Department of Food and Agriculture, Fertilizer Research & Education Program, Division of Inspection Services, State of California, who stood at the podium for quite some time and quietly tried to point out that part of the regulation targets that are based on nitrogen uptake values of crops, one of the key target numbers that farmers must aim for, is problematic since there are no scientific studies that correctly give those uptake values.

In other words, the RWQCB wrote a draft ordinance that basically requires a regulation based on no known science – just grabbed some kind of “average” number, for example, then wrote an ordinance that required farmers to somehow to meet that number, even though that number had no known science to back it up as accurate or even realistic. And if that target is missed, the farmer could face enforcement and fines. And scientifically evaluating those uptake numbers on even two crops would take two years and as over 200 crops are involved, getting a real number could take years and years, which we don’t have because nitrate pollution from ag is rising and is a serious problem that can’t wait.

After which another Ph.D soil scientist guy quietly pointed out that part of his PhD was to look at nitrogen uptake in cotton and the best that particular plant could do was a 50% uptake, not 1:1, so put most simply, farmers have to over-fertilize to get optimum plant uptake, but it’s all much more complex than simply pounds per acre and depends on many, many variables.

In short, the science just isn’t there yet, so it’s more seat-of-pants growing, which may well account for a good deal of the excess nitrogen ending up in the water. And rather than simply setting target numbers, perhaps a better way to go is to set up an irrigation program to create a cadre of highly trained folks who can work with ranchers to better control water and fertility and hence nitrogen use versus just having farmers fill out forms that nobody will read.

All of which caused Chairman Young to exasperatedly crank at the bland Mr. Hard that Dammit, the Board is there to regulate, they’re charged by the State of California to regulate the waters of the state, so by god they’re gonna pass some sort of regulation, then let the farmers (or science) somehow figure it all out later. (If you live in Los Osos, this will sound, really, really familiar.)

Later, at Staff comment time, it was asserted that that mysterious non-scientific uptake number wasn’t what it was in the draft, but something different or, oh, like whatever . . . The farmer I was sitting with, snorted through their nose at that. He was not amused.

And on it went, until the group pushing the Ag Alternative Proposal showed up with piles of new “testimony,” which Chairman Young allowed into the record even though that violated the rules concerning public comment. They were proposing that there was a better way to go, rather than a one well, one farm “regulatory” approach since there’s a real fear and distrust of the Board. That caused Chairman Young to go all treacle and tears, sorrowing and sighing about how “unfortunate” it is that farmers should be fearful of having the hammer of enforcement coming down on them. Which was hilarious. Clearly, Chairman Young has forgotten . . . The Los Osos 45. Ah, how sharp the serpent’s tooth . . .

Instead, the Ag Alt program would work in groups and/or regions and monitor well data in the aggregate while working with cooperative farmers to meet regional goals of reducing overall nitrate numbers. And if a particular farmer in the group balks, or refuses to work to improve his operation, the Ag Group could dump him and leave him to the tender mercies of Roger Briggs.

And it was this plan that Chairman Young bent over backwards to ensure would get a second look and so its various components will be considered as an addendum to the proposed ordinance and it all be returned for a possible vote in Sept.

Thus endeth the Ag ordinance, for the time being. From the grumbles I heard, the farmers in the room left town with a very guarded outlook. But what amazed me was the soft soap the Board served up to the agricultural community. Even Roger Briggs, in his closing remarks, went on and on about how minimal these regs are, how un-burdensome they were, how minimal, how benign. And board member Jefferies went so far as to hand-wring about his deep concerns that these regs should not create a financial burden, that farmers shouldn’t be forced out of their ranches, that businesses be harmed, even though the Board kept reiterating that the nitrate problem was terrible! a crisis! a danger!

Which was ironic. If, as they claimed, nitrate contamination by ag practices were a Terrible Crisis! then the Board needed to single out 45 farmers, slap CDOs on them, put them through a Mat Hatter “trial, threaten them with jail, even “fine them out of existence.”

But, no, there would be no CDOs for these aggies. Instead, everything about this ordinance would be aimed at doing the very least. Which is why nobody should ever underestimate the power of big Ag that arrives en mass with their attorneys. As usual, God bless the child. . . .

On Thursday, it was Atascadero’s time in the barrel as the Board considered voting on the update of the region-wide onsite system implementation plan that was also updated in 2008 & 2009, so the Board maintained that this was no big deal, just a few minor details. Which is how they do these thing: confuse criteria with implementation. Minor update or not, various Atascadero officials and their attorneys showed up to complain that there’s no evidence of ground water problems from septics, no evidence of problems from salt water softeners, no evidence that you need to treat new and old systems differently, the regulations conflict with State law, it doesn’t have a Burden Benefit Analysis as required, the update is premature because the state is still working on their overriding updates so Why is the local RWQCB jumping the gun? Also, there’s no showing (lack of findings) of necessity and authorities for the regulations, CEQA requirements are not met, it constitutes an unfunded mandate, is too costly. And on and on and on.

In short, Atascadero authorities showed up to say, It ain’t broke so why are you fixing it? Which shows that these good folks don’t understand. This isn’t about fixing broken things, it isn’t about science or practical reality. It’s about command and control. It’s about quietly laying the ground work, a few stealth pieces at a time, to carefully create the unchallengeable confusion of criteria and implementation. That is, first pass a resolution, say Resolution 83-13, with a set of rules (criteria) and claim that’s since it’s been voted on it’s a done deal (even though the proposal may not have been finalized by the State Water Board). If these rules (criteria) are challenged in court at this phase, the judge will be told that the resolution (criteria) can only be challenged when they’re implemented (the case is “ripe.”) When that does happens, often years later, the Board then claims that the statute of limitations is long past and so it can’t be challenged. It’s the perfect Major Major Major ploy from “Catch 22.”

But the earnest Atascaderians didn’t understand and kept babbling on about how fine their septic tanks were, how well they were operating, often within a few hundred of feet of their drinking water wells when suddenly, Chairman Young’s nose twitched, his eyes narrowed, his ears perked up to a Boiiiiiing alert point and he quietly asked the babbler whether there were septic tanks located over “potential drinking water.”

Ah, yes, the dog whistle lure of Porter Cologne. The RWQCB doesn’t need science. It doesn’t need facts. As the Board’s attorney reminded the sweet, clueless dim bulbs from Atascadero, if there’s discharges anywhere that “could” impact any water of the State of California, then the RWQCB has the legal authority to prosecute even without any evidence that there actually is any actual pollution. “Could impact” is sufficient to land anyone in the Land of Enforcement. So you can see why Chairman Young’s nose twitched? Yes. “Potential drinking water source?”

Poor Atascadero. They didn’t hear that dog whistle. They didn’t notice the abyss that had been under their feet all along. No legs to stand on. Poor dears.

Unlike the aggies with their lawyers, the City of Atascadero and their lawyers were told, Thanks for stopping by, good luck, here’s the door, if you have any questions, call our staff, Buh-bye. Resolution accepted as is: 6-0.

Like all RWQCB meetings, this one again left me scratching my head. How is it possible that everything the RWQCB does ends up FUBAR? It’s truly amazing. I suspect much of the problem comes from the utter lack of transparency (or common sense) in water law. That’s a Byzantine nightmare realm that nobody can navigate. Add in the absolute lack of transparency, chronic duplicity and constant political manipulation and hidden agendas of the RWQCB and staff, and I suppose FUBAR shouldn’t be a surprise.

And speaking of which: Agenda # 13 was the issuance of a discharge permit for the Los Osos Sewer Project. I wasn’t able to make that hearing on account of having to go up to Atascadero to get my greyhound, the Mighty Finn McCool, out of the emergency hospital up there. (He had some terrible incident late the night before that looked like possible (lethal) bloat but likely turned out to be some weird, extremely painful neck/spine spasm.) So I got to the meeting too late but was told that in addition to the issuance of that waiver, the Board also – finally – had to formally admit that, yes, while they targeted 45 citizens and put them through an insane show trial and slapped them with CDOs, and put the whole community under a building moratorium and locked it into a PZ which forbids discharge of waste into the waters of the state of California, the same RWQCB would now grant the County/Sewer project a formal exemption from Resolution 83-13 and grant permission to . . . . discharge waste into the PZ and into waters of the state of California.

God bless the child . . . .