RWQCB: PZLDF Appeal Keeps CDOs Alive

The Central Coast Regional Water Quality Control Board recently considered Supervisor Gibson’s request to rescind the five-year-old cease and desist orders levied on select Los Osos homeowners, and they finally appeared ready to drop them. But now the RWQCB says it can’t legally comply, claiming that Citizens for Clean Water aka Prohibition Zone Legal Defense Fund’s appeal of Judge Charles Crandall’s December 28 ruling against PZLDF is preventing them from lifting the CDOs the Los Osos group has been seeking to have vacated.

 

 

The Central Coast Regional Water Quality Control Board recently considered Supervisor Gibson’s request to rescind the five-year-old cease and desist orders levied on select Los Osos homeowners, and they finally appeared ready to drop them. But now the RWQCB says it can’t legally comply, claiming that Citizens for Clean Water aka Prohibition Zone Legal Defense Fund’s appeal of Judge Charles Crandall’s December 28 ruling against PZLDF is preventing them from lifting the CDOs the Los Osos group has been seeking to have vacated.

In a twist of irony befitting the politically-warped Los Osos sewer project, the remaining small group of Los Osos homeowners fighting the RWQCB over basically moot CDOs — for allegedly polluting the groundwater with their septic systems in the controversial “prohibition zone” — on March 14 filed an appeal of Judge Crandall’s December 28 ruling tossing the case out of court. PZLDF’s appeal apparently crossed paths and purposes with Gibson’s letter to the RWQCB, which was written a week after the appeal was registered.

Now the CDOs will remain in place for those who have received them, at least until the Citizens for Clean Water/PZLDF appeal is ruled on; however, further appeals by the group could continue to hamper official revocation of the CDOs while appeals are being heard before any court.

Responding to 2nd District Supervisor Bruce Gibson’s March 22 letter requesting that the Central Coast Water Board rescind the CDOs, State Water Resource Control Board attorney Frances L. McChesney wrote Gibson on May 25:

“As you know, a small group of CDO recipients filed suit in San Luis Obispo Superior Court against the Central Coast Water Board challenging the CDOs and the establishment of the Los Osos prohibition zone. While the Central Coast Water Board prevailed, a few parties have appealed that decision. Thus the case is currently pending before the Court of Appeal… While the Central Coast Water Board appreciates the progress toward constructing a Project, it will not rescind the CDOs at this time due to the pending litigation. If circumstances change, the Central Coast Water Board may consider your request.”

Wrote Judge Crandall in his December 28 ruling: “There is indeed substantial evidence supporting: 1) the establishment of the discharge prohibition; 2) violations of the discharge prohibition by named individuals; and, 3) a reasonable plan for bringing about compliance. That is all the law requires.”

Judge Crandall brushed aside the PZLDF legal challenge brought by Los Osos real estate attorney Shaunna Sullivan and Citizens for Clean Water director Gail McPherson, finding that “the actions of the Regional Board did not violate due process… (and that) the CDOs issued by the Regional Board are supported by substantial evidence, and are not otherwise deficient… The evidence belies their legal claims, which the Court finds are exaggerated… The Regional Board went out of its way to provide due process of law…”

He further criticized the PZLDF legal team’s belated attempts to bring forward evidence outside the administrative record to challenge the RWQCB, as well as for requiring a Protective Order by the court “to stop Petitioners from issuing or requesting belated deposition subpoenas of Regional Board staff. The Regional Board concluded that Petitioners had attempted to use inappropriate demands for discovery to obstruct Central Coast Board proceedings in this matter.”

The RWQCB claims it randomly selected 45 homeowners to receive cease and desist orders representing the approximately 5,200 homeowners in Los Osos’ “prohibition zone.” CDOs were received by most of these homeowners on or about January 30, 2006. Notices of Violation, the precursor to a CDO, were later sent to all homeowners in the prohibition zone.

The failure of PZLDF to successfully challenge the establishment of Los Osos’ prohibition zone could set a precedent for the establishment of similar prohibition zones elsewhere in the state. The judge’s ruling has also raised serious questions about the case presented by PZLDF’s legal team and their appeal. An appeals court reversal of Judge Crandall’s decision is viewed as highly unlikely.

Los Osos homeowners appealing on behalf of PZLDF are: Rhian Gulassa; Laurie McCombs; Antoinette and Bruce Payne; Elisabeth E. Allerbe; Charles E. and Norma Wilkerson; and William and Beverly Dewitt-Moylan.

— Ed Ochs