Rebuffed by Los Osos and the courts of San Luis Obispo County, urban wastewater cowboy Tom Murphy, proprietor of “The Reclamator” onsite system, is back pawing familiar ground and has turned himself into a perpetual suit-filing machine. His target for the new year: Everybody. Holed up in Lake Havasu City, Arizona, Murphy has been firing off rounds of lawyerless suits in federal courts against the federal government, the EPA, the State of California, and Lake Havasu City. Filing suits is nothing new for Murphy – it’s always been his calling card — but he may have already played all his cards and used up his suit quota for 2010 just in January and February alone.
The California Coastal Commission has more than a few questions to ask the County at the as-yet-unscheduled de novo hearing on a number of “substantial issues” hanging over the Los Osos Wastewater Project. In the meantime, however, there may need to be a hearing even before the de novo hearing just to determine how many “substantial issues” will be on the Commission’s agenda for the de novo, because there seems to be a basic difference in understanding between the Commission and the County as to how many and exactly what the issues actually are. “We have at least seven specific issues discussed by our Commission… as opposed to the four you have listed,” wrote the Coastal Commission’s Dan Carl to County Public Works’ Mark Hutchinson. Any further delay in the County’s project timeline “will be dependent on timely materials assistance from the County. … Even optimistically, it seems likely that we are looking at a hearing at least several months away, and potentially longer.” These are not just “minor concerns” as Gibson and Ogren minimized them to the Tribune.
The California Coastal Commission has more than a few questions to ask the County at the as-yet-unscheduled de novo hearing on a number of “substantial issues” hanging over the Los Osos Wastewater Project, and they have asked the County to “get started” preparing information packages to help the Commission begin to address the issues.
In the meantime, however, there may need to be a hearing even before the de novo hearing just to determine how many “substantial issues” will be on the Commission’s agenda for the de novo, because there seems to be a basic difference in understanding between the Commission and the County as to how many and exactly what the issues actually are.
“We have at least seven specific issues discussed by our Commission… as opposed to the four you have listed,” wrote the Coastal Commission’s Central Coast District Manager Dan Carl in a January 26 email response to County Public Works’ Mark Hutchinson on the subject of “Los Osos Work.” Carl added that any further delay in the County’s project timeline and applying for stimulus funding “will be dependent on timely materials assistance from the County. … Even optimistically, it seems likely that we are looking at a hearing at least several months away, and potentially longer.”
This depth and breadth of “substantial issue” found by the Commission differs significantly from the sound-bite analysis recently provided to the San Luis Obispo Tribune by both sewer whip, Supervisor Bruce Gibson, and partner, Public Works Director Paavo Ogren.
“As decision makers who are not as familiar with the project as I am, there is a natural inclination to think that there must be some kind of substantial issue there. The bar is pretty low,” Gibson said, attributing the delay to the Commission’s “natural inclination to think,” rather than the County’s natural inclination not to think.
The Tribune paraphrased Ogren as saying that “the concerns the commission has are relatively minor.” Following the Commission’s January 14 hearing finding substantial issue, Ogren told the Tribune: “It’s sort of understandable on a project of this nature that they would want some additional details. We’re going to get right on it.”
Los Osos resident Jeff Edwards presented the Carl email at the February 2 Board of Supervisors meeting and said that Carl’s comments reflected “quite detailed, very substantial issues” – certainly not the “relatively minor concerns” professed by Ogren.
“We’ve downplayed the breadth of the Coastal Commission’s review,” Edwards criticized the board as well as Hutchinson for his “four bullet point” response to Carl’s request for materials. “If we continue to diminish the interests of the Coastal Commission, we’re going to drag this thing out longer. I don’t think that’s what any of us want… But if we continue to diminish their interests again it’s just going to take longer.”
Following is the Carl email and Hutchinson’s initial email:
We have discussed internally, and have identified a number of tasks on which we need County assistance in order to address our Commission’s concerns in the de novo permit review of the LOWWP. In particular, we have identified at least seven specific issues discussed by our Commission at the end of the hearing (as opposed to the four you have listed). We also note that while our lists are similar, the emphasis/expectation for how to address them appears to be a little different. To us it is clear that some of these things are multi-faceted and will probably not lend themselves to a ‘one-item’ response. And there are almost certainly going to be other things that come up in the course of addressing these things and the project under de novo overall that we’ll need to address as they are fleshed out. That means that some of this is by necessity going to have to be iterative. Toward that end, we very much appreciate the offer of assistance in developing materials and supplemental analyses to help us address the various issues. To get started down that path, here are requests for assistance and/or next steps on the items that we identified thus far.
Wetland delineation. Please package a complete set of materials that include all wetland delineation reports for the project and send them to Jonna Engel in our Ventura office (89 S. California Street, Suite 200, Ventura, CA, 93001-2801). Please don’t direct her to website links, but rather please provide her with actual documents. Please send a copy of the package to us in Santa Cruz. Please also obtain permission for CCC staff to enter onto private property to assess potential wetland areas. We will coordinate on field work dates once Jonna has had a chance to get into the documentation.
Mitigation. It is clear that we need to address the question of mitigation and the outcome for the balance of the Tri-W site (i.e., that portion of the Tri-W site not proposed to be used for pump station development) as part of this project. In particular, we need to be able to more clearly describe and account for the past habitat impacts at Tri-W, the proposed habitat impacts of the project, the proposed mitigation, and proposed restoration mitigation for any impacts at Tri-W not accounted for specifically by the project at the time of decision for the LOWWP. That could mean that this project include restoration/conservation of that area, or it could mean that County/CCC enforcement efforts conclude and account for restoration/conservation of that area, or some combination. The bottom line, though, is that such final outcome needs to be accounted for now. We would appreciate it if the County could initiate a working conversation with the CSD, whether through the County’s option for the Tri-W site or through the County’s enforcement powers or otherwise, to address this issue, with the goal being to indicate the manner in which the outcome for the Tri-W site can be resolved now. From your email correspondence earlier today, it sounds like you have developed some options along these lines.
Implementation specificity and timing. We will be reviewing the County conditions as well as other project components with an eye towards refining implementation specificity, including in relation to deadlines. We appreciate your offer regarding identifying your timeline for water conservation elements in this respect, but would ask that you broaden that scope in relation to other aspects of the project as well, including implementation of the agricultural reuse and conservation plan. To us, this issue was clearly one of a need to hone in on what the County was going to do, how and when, and making sure these commitments made sense in relation to timing feasibility and potential adaptive management over time. That applies to the water conservation components but also to other project components, like agricultural reuse, as well. Any information you can provide on expected project timing and implementation specificity would be helpful in this regard, whether you want to develop a new product that summarizes this information or want to point us to existing information (e.g., EIR, County findings, etc.) or both.
Willow Creek. The contention is that the project results in an unaddressed and unmitigated 400 afy reduction in flow to Willow Creek to the detriment of creek. We understand that the Bayridge leach field would be used to put back 33 afy as part of the project, and that the County apparently found that this 33 afy would be an equal offset to existing septic flows, but we would like a clearer explanation as to why the County found this to be the case, and how project flows will affect Willow Creek resources. Please provide an analysis with supporting documentation again, new product and/or direction to information).
Hydrogeologic impacts. Similar to the Willow Creek issue (see above) but on a br
oader scale, the Commission was concerned that there was a lack of impact identification and mitigation associated with the manner in which the project is going to alter groundwater flows, including with respect to adaptive management, over time. Although we all realize that at a broad scale the project concept is to enhance marine and groundwater resources (and associated resources, like wetlands, streams, riparian areas, etc.), the concern is that there is not enough specificity with respect to the manner in which this is to occur, when it is to occur, how it is to occur, and what contingencies are in place should certain features not work as well as planned and/or should certain components lead to adverse impacts (e.g. monitoring of Broderson disposal). It could be that the County intends the Groundwater Plan (condition 87) and related measures (i.e., condition 97) to be the vehicle for addressing this issue, but it appears clear that the Commission is looking for greater specificity than that vehicle, including in terms of identifying specific impacts and specific response now as part of the approval of the project to the degree possible. Please package together an analysis of this issue that includes a clear identification of existing and proposed flows, impacts and mitigations associated with changed flows, and a ‘balance sheet’ documenting benefits as well as adverse impacts and responses. Please send a copy of the materials to Mark Johnsson in our San Francisco office (45 Fremont Street, Suite 2000, San Francisco, CA 94105-2219) and a copy to us in Santa Cruz. Ultimately, we should work on identifying a specific, enforceable plan that ensures resources are protected as much as possible as the project modifies flows over time, and ideally the bulk of such plan could be packaged together now.
Staging area on ESHA. The contention is that the County intends to use a staging area that is in ESHA, and that the County has already begun to clear and ready the site for the project without benefit of a CDP. Please package a set of materials specific to construction methodologies in relation to staging and materials storage areas. For all such areas, please provide details on their current state and any development associated with the project that has already occurred there.
Septic tank plan. The Commission raised concerns that there was inadequate specificity with respect to the ultimate disposition of the approximately 5,000 septic tanks currently in operation in the project area. Clearly, the County commits to assisting private landowners to reuse such tanks to optimize groundwater recharge (condition 88), but it appears possible that this may not happen as part of the project at all. Please identify a plan that identifies specifically what will happen to existing septic tanks in this respect, how and when. If there are multiple possible outcomes based on site specific criteria, please identify all such criteria.
As indicated it the onset, this isn’t necessarily an exhaustive list, but it should get us started down the path toward the finish line. On that please note two things. First, it is unclear when this project will again be scheduled for a hearing. It will obviously take some time to package, review, analyze, conclude, and develop a recommendation for these and related issues. We will do our best with our limited staff to move quickly, but it is clear that much of the timely success of this next stage will be dependent on timely materials assistance from the County, as indicated above. Even optimistically, it seems likely that we are looking at a hearing at least several months away, and potentially longer. Second, we are prepared to discuss ways we could help to communicate with potential funding entities in such a way as to help the County with preserving and pursuing funding opportunities (e.g., staff recommendation letter; closing the federal consistency loop on funding; etc.).
I hope that this helps to detail next steps. Please contact me if you’d like to spend some time fleshing this out or if you have questions otherwise. As you indicate, we could do a conference call with appropriate persons too if that makes sense. Thanks…
Hutchinson’s initial email:
We are interested in a team-to-team conference call to get initial direction on what you would like us to provide and when. We have already determined that we will:
1. Make whatever arrangements are necessary to review the wetlands work, including confirming a right-of-entry and providing any staff you might want to accompany coastal staff
2. Provide exhibits and discussion on the mitigation issue, comparing the impacts of the two projects (location and magnitude) and the mitigation proposal.
3. We can also provide our time line of the various elements of water conservation included in the project, so that you can consider them when developing implementing conditions of approval.
4. We will also get with the groundwater hydrologists and review documentation on the Willow Creek issue and see if we can better describe what is going to happen there.
Other issues, like the staging area, may deserve a line or two — but if you have any others to add we’ll provide info on those as well.
John Waddell is out on vacation until February 1 (prescheduled has nothing to do with last week) but I am available for a discussion. Thanks for your efforts last week; hopefully we can get to the next hearing without making up all of your time.
Environmental Programs Manager
Department of Public Works