COUNTY’S SEWER PROJECT TIMELINE DELAYED MONTHS

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 report 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.