Los Osos Affordability Report: Sewer Costs to Lower-Income Residents Will Be ‘Unbearable’

There is no escaping it. No topic in the far-flung Los Osos Wastewater Project universe remains on more residents’ minds than affordability. Yet the word and what it stands for – thousands of people forced to leave Los Osos because of the looming $250 a month sewer bills — has all but disappeared from the public dialogue, as if the issue never existed in the first place. To document the ongoing ground-level reality of this overriding issue in Los Osos, Sherry Fuller and Mimi Whitney last year co-authored a “white paper” on the potential sewer project costs to lower income residents of Los Osos. Their “Affordability Report” of January 2009 used census data from the year 2000 that had been projected to the year 2008 by a leading computer modeling firm (ESRI) that is widely used by both government and industry. “With the new Census being prepared now, we should see updated figures next year that will most likely be even worse that what I reported last year,” co-author Mimi Whitney recently told The Rock. “Consider the effects of our current recession on Los Osos residents: unemployment, bankruptcy, the housing market…We will do an updated ‘white paper’ after we have the new census data to work with. Stay tuned for the really bad news.”

There is no escaping it. No topic in the far-flung Los Osos Wastewater Project universe remains on more residents’ minds than affordability. Yet the word and what it stands for – thousands of people forced to leave Los Osos because of the looming $250 a month sewer bills — has all but disappeared from the public dialogue, as if the issue never existed in the first place.

When the County officially eliminated any alternative collection system – in favor of expensive gravity collection – on April 7, 2009, they also eliminated any hope for affordability, because an alternative system would have cost at least half as the County’s proposed $165 million gravity project. The County has also admitted that their project will be unaffordable for many residents of Los Osos.

To document the ongoing ground-level reality of this overriding issue in Los Osos, Sherry Fuller and Mimi Whitney last year co-authored a “white paper” on the potential sewer project costs to lower income residents of Los Osos. Their “Affordability Report” of January 2009 used census data from the year 2000 that had been projected to the year 2008 by a leading computer modeling firm (ESRI) that is widely used by both government and industry.

“With the new Census being prepared now, we should see updated figures next year that will most likely be even worse that what I reported last year,” co-author Mimi Whitney recently told The Rock. “Consider the effects of our current recession on Los Osos residents: unemployment, bankruptcy, the housing market…

“We will do an updated ‘white paper’ after we have the new census data to work with. Stay tuned for the really bad news.”

Though widely circulated and read by the Planning Commission and Board of Supervisors, both the Tribune and New Times refused to print any part of the report. “The Tribune would not even return my phone calls,” Whitney said.

“The Board of Supervisors does not want to discuss the impact of cost on the lower income people living in Los Osos. They barely acknowledge there will be an issue.”

At a recent Board hearing where financial assistance to community projects and organizations were itemized, Whitney said, “County staff included Los Osos on a long list of recipients that needed funding.  However, we were not approved for funding assistance. The Board has alluded to federal funding that would ‘provide some grant monies’ to assist qualified homeowners in Los Osos with sewer-related costs.”

Los Osos still might net something, but at this time there are no grant commitments in hand or “in the mail.” The County has applied for $80 million in USDA stimulus dollars, but $64 million of that is in the form of a loan. With a starting sewer bill of $250 per home per month, trending to $300 per home eventually, it is obvious that Los Osos residents will need more financial assistance to pay their sewer bills than will be available to them. The result: The amount of assistance will only forestall the inevitable, especially for the disabled and seniors who will have to pay one-third of their income to the sewer.

“An Environmental Impact Report was required, but no ‘environmental justice’ or ‘socio-economic’ impact report,” said Whitney. “It was not required, according to the law, so it was not considered although it could have been. The Board felt is was more appropriate to put off the bad news until after the project is built and funded.”

The Rock is publishing the “Affordability Report” as a reminder to Los Osos residents and government officials of the socio-economic and environmental-justice disaster that the County’s proposed project will bring to Los Osos.

Take a few minutes to read the attached report. Summarizes Whitney: “If you make less than $45,000 annually the extra monthly sewer fees will be hard to pay. If you are in the very low income bracket, or make under $35,400 per year, pack your bags!” (2009 LOS OSOS AFFORDABILITY REPORT)

Note: This month Golden State Water, the largest water purveyor in Los Osos, announced it will seek a 48% hike in water rates in 2011, when sewer bills will also hit homes, raising the financial misery index for Los Osos homeowners and residents in the “Prohibition Zone” selected to pay the bill for the sewer – at the same time that water bills double.

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County’s Omissions, Gaps and Lies Force Coastal Commission Hearing on Unresolved Sewer Issues

The 2nd District Supervisor had stumped up state and down lobbying the all 12 Coastal Commissioners in their offices, via email and on voice mail to approve the Los Osos Wastewater Project, and when the commissioners voted 7-5 to extend the process and hold a de novo hearing in April for a limited review of project loose ends, Bruce Gibson bowed his head, his ears red. He was joined in defeat by brother San Luis Obispo County Supervisor “Katcho” Kachadjian, who had lobbied from within as both a Coastal Commissioner and County Supervisor, to follow staff’s recommendations and find ‘no substantial issue’ with any of the almost 30 appeals of the project brought before the Commission in Huntington Beach on January 14. But at the end of that long day, after waging what the Tribune called a “week-long lobbying blitz,” Gibson and Kachadjian stood there with the long faces of losers, looking more like the blitzed. It was a most reassuring sight and worth the long trek for several Los Osos appellants who had driven five hours to Huntington Beach to speak to the Commission for five minutes each. It was also a reprieve, no matter how brief, for homeowners and residents back in Los Osos.

The 2nd District Supervisor had stumped up state and down lobbying the all 12 Coastal Commissioners in their offices, via email and on voice mail to approve the Los Osos Wastewater Project, and when the commissioners voted 7-5 last week to extend the process and hold a de novo hearing in April for a limited review of project loose ends, Bruce Gibson bowed his head, his ears red.

He was joined in defeat by brother San Luis Obispo County Supervisor “Katcho” Kachadjian, who had lobbied from within as both a Coastal Commissioner and County Supervisor, to follow staff’s recommendations and find ‘no substantial issue’ with any of the almost 30 appeals of the project brought before the Commission in Huntington Beach on January 14.

But at the end of that long day, after waging what the Tribune called a “week-long lobbying blitz,” Gibson and Kachadjian stood there with the long faces of losers, looking more like the blitzed. It was a most reassuring sight and worth the long trek for several Los Osos appellants who had driven five hours to Huntington Beach to speak to the Commission for five minutes each. It was also a reprieve, no matter how brief, for homeowners and residents back in Los Osos.

Gathered in chambers to offer testimony if called were County and Central Coast officials including: Paavo Ogren, Director of County Public Works; Mark Hutchinson, Divisional Manager of Environmental for Public Works; Fred Collins of the Northern Chumash Tribal Council; Marshall Ochylski, President of the LOCSD; and Roger Briggs, Executive Officer of the Central Coast Regional Water Quality Control Board. They hadn’t come this far for a team photo; they had come for the CDP, the last piece in the arduous permitting process for the County’s proposed project. Now Gibson and Kachadjian, Briggs and Ogren, Hutchinson, Collins and Ochylski would have to wait awhile to celebrate. There would be one more costly step.

With all its local tail-wind, how could the wastewater project come so far only to be rebuffed, even temporarily, by a supportive Coastal Commission? Perhaps Gibson was weary with all the mileage he had logged trying to build momentum to ram the project by the Commission. Perhaps it was the pressure of having to operate in the open, outside his geographically isolated, protective bubble of San Luis Obispo County, where legitimate challenges brought to the Board of Supervisors there are often either ignored or met by edicts.

Or perhaps it was the holes left in the County’s EIR, the ones that were always there from the very beginning and ignored for years, the holes never filled, the mistakes never corrected, despite ample warnings from the public that Gibson labeled “assertions” to dismiss them. What substantial issues were significant enough to a majority of commissioners to weather the pressures of the moment, of concentrated power and money, and order a de novo hearing, delaying the project for several months — risking, according to Gibson, $80 million in Department of Agriculture stimulus dollars ($64 million of that in the form of a loan)?

Whatever the reason why, armed to the teeth with almost every cliché he has ever used stacked one on top of another, Gibson’s presentation fell cold and flat on a majority of Commissioners’ ears. In fact, he found his only success in doing his best to un-sell his project to wary Commissioners already facing 30 appeals and no clear, conclusive answers to several vital questions about the project.

Following is the core of Supervisor Gibson’s remarks to the Coastal Commission and some of the lies that he told the Commission for the sole purpose of deceiving them into accepting the flawed EIR and dubious impacts of the project to secure County approval to build their proposed $165 million gravity collection system in Los Osos.

Gibson: “In brief we obviously endorse your staff’s recommendation to find ‘no substantial issue.’ Now it might well be politic of me to stop there, but I wanted you to know that we are prepared to discuss each assertion that’s been raised by the appellants this afternoon as we have many times before at our hearings within the County…”

First use of his favorite word “assertion.” An assertion makes it sound like it’s not true. That is, an assertion is a false claim with no foundation in fact and therefore not to be considered. A simple way of dismissing just about anything anyone has said and might say that is unwanted, and Gibson uses it over and over again.

“I would like to talk just briefly about how this big and this significant a project comes before you with the recommendation of ‘no substantial issue.’ As you’ve heard, we stand in the shadow of 30 years of institutional failure. We stand in the shadow of 30 years of pollution and 30 years of controversy…”

This is the first lie and THE biggest. To this day, after 30 years, there still exists no clear, conclusive proof or documentation of pollution by septic tanks in Los Osos, even though it is the responsibility of government, by law, to prove that individual pollution exists, and not the responsibility of the homeowner to prove it does not exist. Without testing it’s anybody’s guess – and anybody’s game to play.

For example, according to a December 14, 1984 RWQCB internal memo from Executive Director Briggs to his then-superiors B. Leonard and K. Jones (BRIGGS 1984 MEMO), proof of pollution was easy to manufacture.

Wrote Briggs: “Although County staff agrees there is evidence of human fecal bacteria in the surface waters, they feel we’ve overstated the significance of this. If there are problems, the County contends that the proposed project will do nothing to curtail them.

“Ground water analyses in Tables 2 and 3,” he continued, “do not indicate human bacterial contamination, except in poorly constructed monitoring wells, according (then-County Lab Analyst) Percy Garcia. The County had these wells installed. Frank (DeMarco from the RWQCB) inspected these wells last week with Percy and agrees there is a potential from surface runoff. City staff maintains the data indicates nitrate concentrations aren’t going up much. Our wording in the staff report is “continued degradation.”

And, even if the Bay is polluted, and it is, Gibson does not reveal who among the dozens of heavy polluters to Morro Bay does he conveniently leave out of the equation? Why is the entire blame for any and all suspected pollution in the bay heaped on only Los Osos?

“…but in 2006 San Luis Obispo County stepped up to address these issues as a volunteer.”

First use EVER in three years of the word “volunteer.” This confirms that the County has not legally accepted the project, yet they have spent over $7 million studying the project and held a Proposition 218 assessment to tax homeowners, and made all the decisions on what system goes where – as a “volunteer”? In fact, the County worked hand in hand with Assemblyman Blakeslee on his backroom legislation, which was based on the LIE that all 4,500 septic systems in Los Osos were polluting, again, without documentation. That is no “volunteer.” As soon as the recall of 2005 was successful, the plans were already in the works for the County takeover. This is not the good will of volunteerism, as Gibson made it sound. Quite the opposite. It was a way for the County to take over the project and build exactly what they wanted to build.

“State legislation, Assembly Bill 2701, gave us the authority to address the wastewater system for the community of Los Osos in the aftermath of the failure of the Los Osos CSD…”

It was not a Los Osos CSD failure of the Schicker CSD board, but rather a failure of the recalled CSD board to conduct a Proposition 218 vote according to
California Constitutional law. The State Water Board, for the first time in their history, was caught loaning out unsecured SRF money, which is against State and Federal law. They could no longer legally fund the old project until a vote was held.

“..It does not force us to take this project and indeed today we still stand before you as a volunteer. We are deeply committed to this happening because we think it is, we know it is the right thing to do.”

LIE. Is it the right thing to do, only looking at the most expensive choice of project possible and refusing to consider any other less expensive, sustainable, alternative collection such vacuum, which was never studied, and treatment, such as sludge-control ponding systems? Gibson never allowed Los Osos to build a project that it could afford – and there was so much to choose from.

“In 2007 we embarked on an extraordinary public process that has gone on nearly continuously over the last three years and to which we have committed  over $7 million of our precious general fund dollars, and it’s the quality of this process, I believe, that has produced the project that’s before you with the recommendation of ‘no substantial issue.’ We were charged with and have reviewed all feasible project alternatives.”

LIE. The County has refused to honestly review all feasible project alternatives. As soon as the County took over the project, then-Public Works Director Noel King and then-Deputy Public Works Director Paavo Ogren – now Public Works Director Ogren – both stated publically and in writing that they would only build a gravity collection system in Los Osos. That never changed.

“We’ve conducted unprecedented outreach to staff, both state and federal, and again especially your own commission staff. We’ve also conducted unprecedented outreach to the public, and since January of 2007, which coincidentally was the month that I took office for the first time, we have agendized the Los Osos Wastewater Project over 50 times on our Board of Supervisors agenda. We have listened to over 45 hours of public testimony in that time. We have also had 36 public meetings of a Technical Advisory Committee working on project details. They have had numerous hours of public testimony as well. We’ve conducted town hall meetings. We have direct mailed to the community. I have engaged the community in office hours and in many other venues to talk about all the issues that are significant.”

Only section that is not a LIE. Although he breached widely accepted free speech standards, limited public comment, harassed and intimidated speakers from Los Osos, dismissed every comment as an “assertion,” and even cut the microphone on a retired Superior Court judge, Gibson didn’t technically lie here by adding up the number of hours they never listened to.

“Most significantly, however, this project has been vetted in 10 meetings of our County Planning Commission – eight of them in chambers and two of them as field trips. And it is during those meetings, and I thank our Planning Commission from the bottom of my heart, because it is in those meetings that significant changes were made to the project that ensure its consistency with our LCP, that responded to both public agency and public-at-large comments.”

LIE. Gibson thanked former Planning Commission Chair Sarah Christie from the bottom of his artificial heart by helping to boot her off the Commission – because of her neutrality and fairness – by stabbing her in the back.

“So when this project was inevitably appealed to our Board of Supervisors, we acted on it twice, we passed the Planning Commission-approved project with minor modifications, and I’ll emphasize that both at the Planning Commission and at our board we passed it unanimously. So every aspect of this project’s been studied against technical requirements, regulatory requirements and its feasibility to arrive at where we are today.”    

LIE: Sprayfields on Tonini with over 600 acres, which was roundly rejected by the Planning Commission, is not a “minor modification” – it’s major. It demonstrates not only the necessity of closer scrutiny of County plans, but additional scrutiny for not listening to much if any of their 45 hours of Los Osos public comment – another LIE. The community warned him repeatedly, but he and the BOS failed to listen. So what good are 45 hours of testimony if it’s a board with 10 closed ears and each supervisor have their own agenda?                                                                     

“And the project has also been tested against every assertion that you’ve heard today. The project as you see it meets all water quality regulations, it is consistent with our LCP. There is no feasible project more protective of the environment, and I conclude from that result that the public process has worked. We have developed huge community support, the 80% approval of a very significant assessment is relevant to that, and we have listened, we have changed the project, we have arrived at the best possible project.”

Second use of favorite word “assertions,” deployed to denigrate any point of view that doesn’t agree with his. It’s clear why. The project hasn’t been tested at all and is obviously not well thought out with any common sense and professionalism, as both the Planning Commission found issue, changing the project’s planned location, and the Coast Commission found issue with a flawed and incomplete EIR. A ridiculous LIE: Of course there are more feasible projects far more protective – not destructive – of the environment than the County’s project. There are viable systems far less disruptive to Chumash remains and the environment but they were shut out of project strategically and purposefully.

Said Sierra Club’s Andrew Christie in his comments to the Commission: “The Los Osos Wastewater Project… is marked by unnecessary components from previous incarnations, avoidable impacts to coastal resources and inadequate mitigation. There are feasible, less environmentally damaging alternatives that avoid the impacts this project would impose as permitted. To get to those alternatives you first must find that our appeals raise substantial issue. We think there could be no more substantial issue than the question of whether the project will succeed or fail and whether it will allow the aquifer to be destroyed by seawater intrusion.

“This means that the programs for water conservation and agricultural reuse of effluent must succeed and both programs be implemented in a timely fashion,” He said. “As currently permitted it is likely that they will not…:

“There’s always been controversy but now is the time to act. We’ve had 30 years of institutional failure on this matter. We’ve had 30 years of groundwater pollution to the Los Osos groundwater basin and that has got to stop. We’ve had over 30 years of pollution to the Morro Bay National Estuary; that has got to stop, and I think most commissioners sitting today are familiar with that estuary. In 2007 we took a field trip out of Morro Bay and you saw firsthand the abundant and dramatic wildlife that exists both in and adjacent to that remarkable body of water.”

LIES. Los Osos is not the arch polluter of Morro Bay, nor the sole polluter, but just a small percentage of the more than two dozen polluters of Morro Bay, none of which Gibson bothers to mention in order to make it look like it all comes from Los Osos septic tanks and not the birds, agribusiness, surface runoff and decaying natural vegetation, as studies have shown. Take a look at the polluting gravity sewer systems of Morro Bay (also in Gibson’s district) and Pismo Beach, which leak, break and spill to this day and are much greater ocean and groundwater polluters than the Los O
sos septics.

“We have a project here that not only stops the pollution that I referenced but it goes several steps beyond in correcting the consequences of that pollution, which is the seawater intrusion that’s been referenced.”

LIE. It is well known that the County’s proposed sewer system will do nothing to correct the nitrate problem for at least 30 to 40 years, if ever. Meanwhile, the gravity system is polluting groundwater and ocean every day, more and more, year by year as it shifts and ages. The County’s project does nothing to address saltwater intrusion, other than pour good water into salt water rendering it all undrinkable.

“So we now respectfully ask for your commission’s concurrence… so that we can act to correct an environmental disaster, so we can act to protect the health of the community of Los Osos, both its social health and its environmental health, and we urge you to agree with your staff’s findings of ‘no substantial issue.’”

LIE. The only real “environmental disaster” in Los Osos is the County’s proposed gravity sewer project. Not only will it pollute the groundwater through exfiltration and breakage, but it will turn Los Osos into a barren landscape by taking away water from trees and shrubs formerly fed by leach fields. Gibson’s “disaster” will disrupt Chumash Indian remains and, because of the great number of remains that will be unearthed by the deep trenching, the project will most likely be the largest, most expensive and most sensitive archeological dig in California history. Gibson’s act to “protect the social health of the community” is nothing than a charade to build a sewer so expensive that more than half the community – especially the disabled and seniors – cannot afford to pay almost one-third of their monthly income towards this one utility service – without going under and losing their homes to a delinquent property tax bill.

In conclusion, everything Gibson said was a lie, except for the subject of community outreach and time spent on agenda and public comment. But in the final analysis, the quantity of outreach and time spent is no measure of the quality of process. If this project was as good as Gibson says it is, he wouldn’t have to lie in the first place and at every turn, which only confirms that everything he says is all just one huge lie.

That is why all the lies in his 25-minute presentation to the Coastal Commission cannot all be exposed here in one article. There are simply too many.

— Ed Ochs

COUNTY’S SEWER PROJECT TIMELINE DELAYED MONTHS

As a result of the Coastal Commission’s 7-5 vote last week to hold a limited de novo hearing in April to review finite details of the Los Osos Wastewater Project, the County will have to wait at least four to six months to receive a CDP from the Commission for the $165 million project to be permit-ready. Despite staff and Commission recommendations to find ‘no substantial issue’ with any of the nearly 30 appeals brought before the Commission, and Supervisor Gibson’s warning that a delay might put at risk $80 million in federal stimulus dollars for the project ($64 million of that in the form of a loan), the Commission rejected any attempt to use time or money as an excuse to waive its standards of consistency and rubber stamp the project.

As a result of the Coastal Commission’s 7-5 vote last week to hold a limited de novo hearing in April to review finite details of the Los Osos Wastewater Project, the County will have to wait at least four to six months to receive a CDP from the Commission for the $165 million project to be permit-ready.

 

Despite staff and Commission recommendations to find ‘no substantial issue’ with any of the nearly 30 appeals brought before the Commission, and Supervisor Gibson’s warning that a delay might put at risk $80 million in federal stimulus dollars for the project ($64 million of that in the form of a loan), the Commission rejected any attempt to use time or money as an excuse to waive its standards of consistency and rubber stamp the project.

 “As decision makers who are not as familiar with the project as I am, there is a natural inclination (by the Coastal Commission) to think that there must be some kind of substantial issue there,” Gibson told the Tribune a few days after the hearing. “The bar is pretty low.” As sewer project leader for the County, Gibson offered no explanation for his own failure to correct long-standing issues with the County’s EIR and why he failed to lawyer his project successfully before the Commission.

According to public testimony by Los Osos appellants and deliberating Commissioners, the lion’s share of responsibility for the delay belonged to County Public Works for allowing the project to reach the Commission with such glaring discrepancies in the EIR, and to Commission staff for not closing the gaps over many months of close cooperation with the County.

Christie Sets Tone

Sierra Club’s Andrew Christie, in his appellant remarks, seemed to set the tone early on for what lay ahead: “Because it has been so long in the making, the Los Osos Wastewater Project is essentially caught between two worlds, the high-impact project it was and the lower impact and multiply beneficial project it is trying to become.

“As a result of that long evolution it is marked by unnecessary components from previous incarnations, avoidable impacts to coastal resources and inadequate mitigation,” Christie said.

“There are feasible, less environmentally damaging alternatives that avoid the impacts this project would impose as permitted. To get to those alternatives you first must find that our appeals raise substantial issue. We think there could be no more substantial issue than the question of whether the project will succeed or fail and whether it will allow the aquifer to be destroyed by seawater intrusion.

“This means that the programs for water conservation and agricultural reuse of effluent must succeed and both programs be implemented in a timely fashion,” he said. “As currently permitted it is likely that they will not…”

Christie described how a water recycling plan for agricultural reuse (Condition 6) and water conservation program (Condition 99) “actually requires the implementation of such programs and both allow them to be developed years from now… The development of a plan has been substituted for the implementation of a plan.

“Long-serving commissioners are aware of the vast difference between these two words and the frequency with which applicants attempt to exchange development for implementation and that whenever this appears on a permit as proposed mitigation it raises a substantial issue,” he chided. “Conditions 6 and 99 should be revised to mandate development and implementation of these programs upon final approval of the project…”

Christie also raised substantial issue with sludge disposal at the Cold Canyon landfill, “double-dipping” mitigation at Broderson, failure to use Coastal Act criteria for wetlands definition and delineation, and the lack of a backup plan for Broderson should it fail as a disposal site.

Concluded Christie: “We trust the Commission will see that there are modifications to be made in this project to bring it into conformity with our Local Coastal Program and secure a sustainable future for the long-suffering citizens of Los Osos, our aquifer, environmentally sensitive habitat areas and the Morro Bay Estuary, one of the most important biological resources on the west coast of the United States.”

Angela Howe, attorney and legal manager with Surfrider Foundation, voiced similar concerns for the same issues: “Surfrider Foundation’s appeal calls to light the project’s failure to conform with several Coastal Acts and local Coastal Plan policies. Knowing that the EIR is deficient and inadequately identifying and mitigating environmental impacts to coastal resources we ask that substantial issue be found with this project.”

Coastal Commission Executive Director Peter Douglas contended that staff had provided more than enough project details to exceed a threshold inquiry, yet expected a de novo hearing: “This substantial issue hearing is a threshold inquiry, so substantial issue is not the same as the kind of review or analysis that the staff would ordinarily do at a do novo review. That said we have made our best effort here to look in enough detail to understand what the County did to various aspects of the project in order to feel comfortable with the conclusion of ‘no substantial issue’ here. So we’ve gone a little bit beyond the ordinary threshold of inquiry.”

Nevertheless, those commissioners voting with the majority cited multiple unresolved concerns for finding substantial issue and for conducting a second hearing on the County’s $165 million project. They felt they had no choice but to uphold the law and equally apply existing policies and conditions regarding wastewater project mitigation, water issues, protection of wetlands and other coastal resources.

‘Serious Deficiencies’

Commissioner Sara Wan agreed that Los Osos needs a sewer but still found significant issues unresolved. “I find that they are at least several major issues here that are either done improperly or left sort of hanging in the air… There are some serious deficiencies in this (EIR and) there are other deficiencies that have been brought up…”

Wan’s vote for substantial issue was based on what she said was the need for additional mitigation at Broderson, the wetlands issue, water conservation implementation, Willow Creek water re-use, and need for Broderson disposal safeguards. “The problem is, I couldn’t find anything that says if there’s a problem (with potentially serious Broderson impacts) what’s going to happen as a result of that problem. So that’s another kind of language deficiency that cries out for the finding of substantial issue.

“If we’re going to be concerned about saltwater intrusion,” Wan said, “and that is a major issue that is equal to the question, if not greater than the question of nitrates – and I do agree we need to deal with the nitrates – if you’re not dealing with these issues properly and if you don’t actually do the water re-use properly, you’re could wind up with seawater intrusion, you could wind up with loss of habitat in Willow Creek and Los Osos Creek.

“Those are serious issues that this commission needs to look at, and it appears to me that the changes actually for those are relatively simple,” she said. “I mean, instead of saying develop a plan, you say develop a plan and implement it by the time the project goes on line. So it’s not that it’s that difficult to change, but it’s something that has to change for this project not to wind up having possibly greater impacts than the problems that it solves.”

‘Unanswered Questions’

Commissioner Esther Sanchez was “convinced” of substantial issue after weighing the staff re
port and testimony, and largely blamed Commission and County staff. “Our own staff is not able to address things clearly in a way that responds to questions that have been raised. I interpret that a lot of these questions were raised in the past. Why wasn’t it made clear in the EIR as to what the wetlands delineations were (and) what standards were used? I just don’t understand that. Our own staff is not able to say whether or not the definition for delineations that the Coastal Act requires was used. (That) he’s not able to answer that question is by itself substantial issue.”

Sanchez was particularly concerned about possible “double-dipping” mitigation at Broderson and didn’t feel the Coastal Act had been properly and legally applied to the project. “As an attorney I’m looking at this and I can think of different ways of getting around it. If somebody else uses that property (Tri-W) I can certainly think that I can find a judge that would probably let me off the hook there…Yes, we’re all concerned about the impacts to the environment, but there are greater impacts that may happen. So I believe that there are substantial issues.”

‘In Good Conscience’

Commissioner Pat Kruer described himself as a project supporter and sympathizer, yet still found substantial issue: “Being someone that’s very familiar with this wastewater treatment plan, been a supporter and watching it, I’m amazed today that we’ve come to this process and we’re looking at whether there’s a substantial issue or not, and with nearly three hours of debate and testimony and some of us conclude there’s no substantial issue, that boggles the mind, and I support this project.

“We’re playing a few games here today from what I’m hearing,” he said. “I certainly heard substantial issue. (Substantial issue), for the past 10 years I’ve been here, hasn’t been a high hurdle; it’s a hurdle that staff has used numerous times requested when I was Chair that they had more time for clarification, more time to look into it in more detail, more time to analyze things, (on) little projects – this is a very complex, large project… Whether (the process is) 10 years, 30 years, or 11 years, or whatever the time is, for us to say there’s no substantial issues on this project, after reading the staff report… I think there are substantial issues…

“This is a very complex project and I don’t think we should use substantial issue to approve a project like this and let it go forward, and I’m sympathetic to the time and to the project, whether to waive federal consistency determination and do all these things for this project. I’m basically taking one hearing today on substantial issues. This is the longest substantial issue hearing I’ve ever been part of, and that alone tells me there’s substantial issue.

“So I’m not going to support the motion of there’s ‘no substantial issue’ here,” said the veteran Commissioner, referencing Broderson “double-dipping” and wetlands delineation. “In good conscience I can’t do that.”

‘Unaddressed Problems’

Commissioner Ross Mirkarimi agreed with Commissioner Kruer based on “dilligence on process and process alone… I still haven’t heard the satisfying answers with regard to several questions…on agricultural water reuse as well as on water conservation and the requirement of a plan being developed versus implemented.”

Mirkarimi “thought … that somebody representing the project or from staff could cure (answer those questions), if the process allowed for it, by simply certifying that you could move from development to implementation and there would be conditions on implementation itself. But nobody has jumped to that, so for me that remains unresolved… That is an unfinished topic (that needs to) be satisfied.”

Mirkarimi also believes the “community needs this wastewater project… Three decades and counting, this projects needs to become implemented. But the problems have also accompanied the period of time over the last three decades, that from beginning to end point of where we are now, where the analysis has been established, I don’t necessarily think that the analysis has kept in pace with three decades of contemporary determinations that might speak to problems that not necessarily were addressed well in the past and if continued to remain unresolved or evolve unresolved… Some of those issues are still before us now…

“It’s heartbreaking,” he said, “that this (Broderson mitigation) issue would actually go this long without it being resolved to the conditions that I think have been well placed and yet not well answered.”

‘Enough Uncertainty’

“By a small degree,” Commissioner Richard Bloom voted with those finding substantial issue: “Really it’s just a gut feeling that there’s just enough of a substantial issue to warrant going to a de novo hearing. I think there’s enough uncertainty to where actually the public will benefit from having as hearing where these things are fleshed out more completely by the Commission.

“That said, I don’t think there’s really any sense predictability what the ultimate resolution would be, although it seems to me that there’s been a tremendous amount of process. The project itself has been thought through a great deal and ultimately there’s going to be some opposition to it no matter what we do…”

Following deliberations, Gibson asked the Chair if he could address the specific issues raised by Commissioners.

Said Chair Bonnie Neely, smiling sympathetically, “I believe you may have an opportunity to do that at the de novo hearing.”

The Commissioners will not review issues such as type of collection systems or treatment options, or location of the proposed facility, at the de novo hearing.