The Loopiest of Loopholes -- Recently Uncovered CSD Document Overrides the Entire Tri-W Environmental Review Process

"Rather fail with honor than succeed by fraud"
- Sophocles

Of all the ridiculous government regulations out there, I think I may have recently stumbled upon the most ridiculous. The loopiest of loopholes.

Currently, in California, it's perfectly o.k. for governmental agencies to go through an entire environmental review process -- months, if not years, of careful study and analysis, all in an effort to determine, as required by state law, the least environmentally harmful way to proceed on a huge public works project, like the Los Osos sewer -- and everything involved in that environmental review process can simply be tossed out the window at the end of the process if said governmental agency just doesn't happen to agree with the least environmentally harmful way to proceed.

All that agency has to do is pop out one, quick, illogical and unsubstantiated, 4-page document known as the Statement of Overriding Considerations (SOC), and, poof, the extensive, expensive, and seemingly important environmental review process goes up in smoke.

Los Osos, take one guess on what happened with your community.

According to California's environmental review process, "If the (environmental) impacts (of the project) are not mitigated to a level below significance, and the (governmental agency) wishes to approve the project, it would also be necessary to adopt a Statement of Overriding Considerations indicating that the benefits of a proposed project outweigh the unavoidable adverse environmental effects."

It's that simple... just indicate a couple of "benefits," and bye-bye environmental review process. And that's exactly what the 2001 Los Osos CSD Board -- a board that really "wished to approve" the Tri-W project -- did.

So, what "benefits" did the 2001 Los Osos CSD Board claim in their Statement of Overriding Considerations that outweighed "the unavoidable adverse environmental effects" of the Tri-W project?

After a lengthy list of objectives, all but one of which could have been achieved with an out-of-town site, the SOC boils down the rationale behind the Tri-W selection to this:

An in-town site (Tri-W) was chosen over other locations because:

- It results in the lowest cost for the collection system by centrally locating the treatment facility within the area served: and

- It enables the treatment plant site to provide open space centrally located and accessible to the citizens of Los Osos;"

And that's it... the reasons stop there. Just those two are listed. And that's all it took to toss the entire environmental review process for the Tri-W project out of the window, a process that showed that sites downwind of Los Osos were "environmentally preferred," and therefore the District was legally obligated to choose one of those sites, unless, of course, they decided to pop out a SOC... which they promptly did.

Let's quickly analyze the first "benefit":

- It results in the lowest cost for the collection system by centrally locating the treatment facility within the area served.

That's the worst logic I have ever seen in an official government document, and it's amazing it got as far as it did. It's a textbook example of "penny wise, pound foolish" reasoning.

Simply geometry tells us that the cost of 95-percent of the collection system would have been the exact same regardless of where the facility was located. The only added expense to the collection system for a downwind, out-of-town, environmentally preferred (and required by state law, unless, of course, you pop out a SOC), and much less expensive site, according to CSD documents, would have been for a small, one-acre, centrally located pumping station at Tri-W, and the extra pipe to take the effluent a mile or two out of town to the main treatment facility. The cost of the pumping station and extra pipe was estimated by the CSD, in 2004, at $2 million.

Furthermore, according to official CSD documents, the cost of the extra electricity needed to pump everything out of town was estimated at about $20,000 a year.

All combined, the above mentioned costs don't even come close, not even close, to touching the tens of millions of dollars needed to accommodate an in-town sewer plant. The land cost alone, including the large chunk of land -- the Broderson site -- that was purchased for mitigation purposes because of the environmentally sensitive nature of Tri-W, added about $7 million to the project when compared to the cost of lots out of town -- most of which are already environmentally degraded through decades of agricultural use, and therefore would require much less environmental mitigation, if any at all.

That $7 million alone, using straight numbers, would have paid for roughly 350 years of the extra cost needed to pump the effluent two miles out of town, according to CSD estimates. The $2.3 million of SRF money slated for the "decorative" park amenities in the Tri-W project would have paid for another 115 years. Solar energy will almost certainly lower the pumping costs dramatically in just a few years.

All of that adds up to one unmistakable conclusion: One of the only two "benefits" why "an in-town site was chosen over other locations," and indicated that the benefits of the Tri-W project outweighed its "unavoidable adverse environmental effects," doesn't hold a drop of water. It makes no sense whatsoever. Deeply, deeply flawed logic.

Which means we now have this:

"- It enables the treatment plant site to provide open space centrally located and accessible to the citizens of Los Osos;"

as the only reason why the environmental review process was completely overridden by the 2001 Los Osos Community Services District, and "an in-town site was chosen over other locations."

Clearly, according to official CSD documents, the Tri-W project was never a wastewater project that included a public park, but instead, according to the SOC, it was a public park project that included a sewer plant. Therefore, according to the brilliant State Revolving Fund Policy, since the park was dictating the location, the only portion of the project that should have been covered by public SRF money, were the wastewater facilities themselves. Not the odor scrubbing facilities needed due to the park's central location. Not the decorative and expensive "Wave Wall," and definitely not the $2.3 million worth of public park amenities planned for the site. However, the state had approved funding for all of that, in direct defiance of their own policies.

Further convoluting things for the only reason "an in-town site was chosen over other locations," is that not only is there absolutely no documentation whatsoever to support the concept that the community of Los Osos wanted their sewer plant to double as a centrally located "recreational asset" in the first place, there is an abundance of strong and credible evidence, like election results, that the community, obviously, never wanted an expensive, elaborate, public park in their sewer plant, as SewerWatch has repeatedly reported.

However, despite all of that excellent evidence, the SOC reads:

These stated objectives underscore the community's desire [bolding mine] to balance compliance with the requirements of the RWQCB with other community goals such as... making the project affordable to all income groups and providing much-needed open space.

That statement can not be supported, period. Not through official sources. Not through polling results. And, most importantly, not through election results. In short, the community never "desired" that "balance" -- a balance, by the way, that would quickly shift from "providing much-needed open space" to providing an amphitheater, community gardens, dog park, play fields, tot lot, picnic areas, public restroom, public parking lot, etc., to the tune of several million dollars -- yet, that "balance," according to the SOC, was the only reason "an in-town site was chosen over other locations."

As for, "making the project affordable to all income groups," the Tri-W project would have been the most expensive sewer project per capita in the history of the Untied States.

Wow.

The Statement of Overriding Considerations would prove to be the one document that ensured that the 2000 LOCSD's vastly redesigned second sewer project -- a project that required exactly ten times less land for the treatment facility than their first failed project -- would not be built at a "environmentally preferred" location, as required by state law, but instead, also be located at the same location as their first flawed project, the Solution Group's "Community Plan." That project was directly responsible for establishing the CSD in 1998, and got three Solution Group members elected, including their marketing director, Pandora Nash-Karner. Nash-Karner is also a long-time, and current, SLO County Parks Commissioner.

Interestingly, the 2001 Statement of Overriding Considerations was recently, quietly and understandably, rescinded by the current CSD Board (that's how I found out about it), a move that would appear to make any future project at Tri-W illegal. Without a SOC, then there's nothing in the Final EIR to "outweigh the unavoidable adverse environmental effects" of the Tri-W project. To build there now would be a violation of CEQA, it appears.

For me, the really serious and troubling fall-out of the LOCSD's Statement of Overriding Considerations -- even above the fact that it doesn't hold a drop of water -- is that it marks the third, third, distinct, highly documentable, invalid, yet successful attempt by the Solution Group and the early CSD Boards to use any means necessary to ensure that a wastewater facility with park amenities is built at Tri-W.

The first attempt was in 1998 and involved the Solution Group and their Community Plan -- a plan that was heavily marketed throughout Los Osos as "better, cheaper, faster," with a "maximum monthly payment of $38.75." However, at the exact same time of those marketing efforts, several water quality professionals and officials were telling the Solution Group, before the election that formed the CSD in 1998, that the Community Plan was not going to work in Los Osos.

Two years later, after the CSD formed on the back of "better, cheaper, faster," "better, cheaper, faster" didn't work... just like all those water quality professionals and officials accurately predicted.

The local media (save, me) blacked out on that crucial story, and the CSD was quietly able to move forward with Tri-W.

Invalid, yet successful attempt #1.

The second successful, yet invalid (and, likely, illegal), attempt to ensure that a wastewater facility with park amenities is built at Tri-W using any means necessary, was the Statement of Overriding Considerations in 2001.

Check out the time-line:

Just a few months after the Community Plan crashed and burned, predictably, and while the RWQCB was threatening fines in 2000, the LOCSD, led by a Solution Group majority, scrambles to throw together an environmental review process for some type of new project (at that point, the Community Plan was in ashes, and they had to come up with something. The pressure was on.)

So, beginning in late 2000, they launch into a hasty environmental review process that results in a Final Environmental Impact Report by February, 2001. That EIR clearly shows that sites downwind and out-of-town, are "environmentally preferred" because the land on the outskirts of town has been degraded through decades of agricultural use, unlike Tri-W.

At that point, the District was obligated by CEQA (state law) to chose one of those "environmentally preferred" sites.

(Note: There were several potential out-of-town sites that could have been considered, however the district only studied three due to the hastiness of the environmental review process. Interestingly, just studying those three would prove to be a complete waste of time and money considering the overriding reason for the in-town site was its central location. It makes no sense to study out-of-town sites when the overriding consideration for the preferred site is a "project objective for centrally located community amenities." Why study out-of-town sites at all? That makes no sense.)

However, if they had chosen one of those cheaper, downwind, out-of-town, and "environmentally preferred" sites, as required by state law, it would have revealed that the project that got them elected and the CSD formed, had failed. It also would have moved the plant off of Tri-W, and the park amenities would have been removed from the project.

How did they wiggle off that one? Easy. All it took was one simple, illogical, unsubstantiated, four-page document that I could've knocked out in an afternoon -- the Statement of Overriding Considerations. And that was it. That document instantly overrode the entire, albeit hasty, environmental review process, and, unfortunately for Los Osos and California taxpayers, unnecessarily kept the CSD's second, and completely different, sewer plant at Tri-W. As I've shown above, there were no logical reasons to keep the second project at Tri-W. None. It could have been moved, and state law demanded it.

The CSD jumped right through that giant loophole and was quietly able to move forward with Tri-W.

Invalid, yet successful attempt #2.

The third successful, yet invalid (and, likely, illegal) attempt to ensure that a wastewater facility with park amenities is built at Tri-W using any means necessary, was the now infamous "bait-and-switchy" move the early CSD Boards played on the California Coastal Commission from 2001 - 2004.

That's when the early CSD Boards convinced the Commission that the sewer plant had to be built at the environmentally sensitive Tri-W site because there was a "strongly held community value" that any sewer plant in Los Osos must also double as a centrally located "recreational asset," complete with an amphitheater, picnic grounds, play fields, a tot-lot, public restrooms, and a lot more.

The Commission bit at the bait, even though there is absolutely no documentation at all to support that extraordinary claim, and reluctantly signed off on the environmentally sensitive Tri-W site, but not before they had to go through an extensive and expensive process to legally allow a sewer plant in the middle of Los Osos -- a process that included dramatically amending the Local Coastal Plan to reflect the extensive zoning changes required for such a project.

Two years later, in 2004, after the LOCSD went about their sneaky little business, the Commission discovered that the park that the community so "strongly" desired, and had locked in the Tri-W selection in the first place, and had led to the Commission's extensive effort to amend the LCP, had been ripped out of the plan almost entirely by District officials, because they never accounted for one dime to pay for the expensive park. Apparently, the park was just a ruse to lock in Tri-W, again, and it worked, again.

And that's when an understandably fed-up Commissioner, Dave Potter, called the lot of them, "bait and switchy." A brilliant, and pin-point-accurate observation.

The District's directors voted to "reincorporate" the $2.3 million worth of park amenities shortly thereafter, and moved forward with Tri-W.

Invalid, yet successful attempt #3.

These days, of course, the Commission is now aware that that "strongly held community value" never existed in the first place, and, understandably, they're mad... and they should be. They were tricked into amending the Local Coastal Plan in 2002 and, against all their policies, allowed development on protected Environmentally Sensitive Habitat for no reason at all.

In essence, that "strongly held community value" served the exact same purpose as the Statement of Overriding Considerations -- it was the only thing at the time that could keep on track a sewer plant with park amenities at Tri-W, and they were both invalid.

I have two questions:

1) Why do the handful of people that have guided a sewer plant with park amenities at Tri-W since 1998 -- using any means necessary -- so desperately want a sewer plant with park amenities at Tri-W?

and;

2) For God's sake, what does it take to get the Grand Jury to look into this?

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