Wednesday, November 28, 2007

What Ought To Be a Law, Part II (Oh wait, it's already a law)

"In short, there are significant assertions set forth in the statement of overriding considerations which could support the policy choice made by the County. Unfortunately, these assertions are unsupported by the final EIR or other information in the record."
-- Court of Appeal, First District, Division 4, California, Nov. 4, 1992

- - - - - - - - -

Damn, I'm good.

But first, I have to get something off my chest...

MEMO TO THE SIERRA CLUB: Thanks for f-ing nothing!

Ah, that felt good (you'll see what I'm talking about in a minute). Now on to the matter at hand.

In case you missed it, local Assemblyman, Sam Blakeslee, is conducting a contest on who can come up with the best "What Ought to be a Law."

I've already submitted one brilliant idea -- that elected officials facing recall should not be setting their own recall election date (absolutely needs to change, but probably never will, because IF that law changes, then it will be an admission that what happened with the Los Osos recall process was a gigantic, VERY expensive catastrophe... so, that law, that badly needs to be changed, will, likely, never change... sucks, but that's just the way it is, I guess, huh?)

Well, I've come up with a second brilliant idea for "What Ought to be a Law."

This ought to be a law: The entire environmental review process, as required by law, for a development project in California -- a process that can consume years and millions of dollars -- should not be able to be simply tossed out the window by the government agency behind the development, using nothing more than an unsupported, three-page document called a "Statement of Overriding Considerations," just because the agency doesn't like the outcome of the environmental review process.

As it stands, astonishingly, that is the law in California (California Environmental Quality Act [CEQA]), and that's exactly what happened in Los Osos in 2001.

I first reported on the LOCSD's baseless "Statement of Overriding Considerations" at this link.

What a terrible law.

But... wait a sec... uh oh... what's this? Well, lookie what SewerWatch has uncovered.

It appears that the issue of government agencies popping out "substantively infirm" SOC's isn't uncommon in California. (Imagine that? A gigantic loophole exists in CEQA, and government agencies, including the 2001 LOCSD, jump through it every chance they get. Who woulda thunk?)

I always like it when I see official rulings where the officials are on the exact same page as SewerWatch.

Take my boys, P.J. Anderson (or "Peeje," as I call 'im), J. Perley ("The Pearl"), and Associate Justice, Poche, ("Poachman"). Those are the three judges from the First District Court of Appeals, in 1992, that wrote and "concurred" with that brilliant quote at the top of this piece.

I guarantee you, Peeje, The Pearl, and Poachman would love the story I wrote on the 2001 Los Osos Community Services District's fake SOC, because all four of us come to the exact same conclusion:

If a government agency is going to pop out a simple three page document -- an SOC -- that instantly wipes out months, if not years, of careful and expensive environmental analysis, then that agency better have a damn good reason, backed up with some serious "substantial evidence," for popping it out.

In their landmark ruling on whether SOC's need to be supported with "substantial evidence," Peeje, The Pearl, and Poachman concluded:

"Nonetheless, the Legislature has required that substantial evidence support CEQA findings... Accordingly, we find that a statement of overriding considerations must be supported by substantial evidence contained in 'the final EIR and/or other information in the record.' " [bolding mine]

That is so damn brilliant. And it also means that my second "What Ought to be a Law" idea, is already law.

Government agencies can pop out a SOC, alright. That's fine, as long as there is a valid reason for doing so, but they can't pop them out for no reason whatsoever, other than the fact that the agency doesn't like the outcome of the environmental review process, like the LOCSD in 2001, and a bunch of other government agencies in California, for that matter.

In their Statement of Overriding Considerations, the LOCSD concluded:
    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 Los Osos wastewater project out the window -- a process that showed that sites downwind and out of town were "environmentally preferred," and, turns out, are much, much, much cheaper.

As I show in my piece, that first reason, logically, is flat out embarrassing.

A stack of official documents, including the county's recently released Fine Screening Report, show that all the extra stuff needed to accommodate a mid-town sewer plant adds anywhere from $30 - $50 million to the project, where the savings associated with the reduced piping and pumping costs from a centrally located facility saves something in the neighborhood of $3 million. Official documents, including the LOCSD's own, show that... all over the place, obviously.

It's laughably flawed logic, and, want to hear something even more hilarious? Officials with the County of San Luis Obispo, today, right now, are using that exact same embarrassing logic.

In their Pro/Con Report for the various sewer alternatives for Los Osos, the county's Technical Advisory Committee lists as a "pro" for the Tri-W project, "Central location reduces cost of collection system."

Tri-W's pros:

Yea, right... whatever. However, what they neglect to take in to account for that "pro," is that to build the sewer plant in a "central location" adds tens of millions of dollars to the project, and therefore makes it the "higher costs overall," by f-ing far.

Tri-W's cons:

See how that doesn't make any sense? Nice logic, TAC. (By the way, nice job, Los Osos, catching that. I have a question? Why do I always have to do all of the leg work, like showing that a small park was dictating the Tri-W location, or showing how the SOC is fake, or showing how a "pro" isn't "pro" at all? You guys couldn't see that last one, Los Osos? It's kind of obvious, dontcha think? Yet, I haven't heard one person, outside of moi, bring that up. And it's very important, because without that "pro," Tri-W doesn't have any "pros." And that crap about how the District already owning the site is a "pro," according to the county, is BS. According to District officials, the District desperately wants to sell that land to help with their bankruptcy proceedings, but can't because county officials, inexplicably, consider it a "viable alternative," and therefore CEQA prevents its sale. Unbelievable.)

In other words, "Tri-W's central location" isn't a "pro" at all, in fact, upon further review, it's a massive, massive, gigantically huge "con." County officials manufactured that "pro," just like the LOCSD. The difference is, I understand why the LOCSD did it, to CYA, of course, but I don't understand why the TAC did it.

Several months ago, I e-mailed county officials and asked them how is it that Tri-W's central location can be a "pro," when it's the "central location" that causes the site to have the "higher costs overall"... by far?

What a great question. Which means, of course, that county officials, like Paavo Ogren, the point man for the project, who raked in nearly $50,000 on top of his normal salary for getting the gig, will never answer it.

And, apparently, the Sierra Club doesn't care either if the Los Osos CSD makes up a Statement of Overriding Considerations to lock in an environmentally sensitive, mid-town sewer plant location -- a location that poses "the highest risks" for spills into a national estuary.

The Sierra Club sued the County of Contra Costa in 1992, AND WON, for the exact same thing the LOCSD did in 2001, yet the Sierra Club didn't lift a finger for the ESHA and national estuary in Los Osos, even though they had all that excellent precedence sitting in their corner. Thanks guys! I'm sure Los Osos appreciates the effort.

A couple of more quotes from Peeje, The Pearl, and Poachman, because they are just so great:

"In short, there are significant assertions set forth in the statement of overriding considerations which could support the policy choice made by the County (of Contra Costa). Unfortunately, these assertions are unsupported by the final EIR or other information in the record."

Oh, Lord. That is exactly what happened in Los Osos. As I first reported in Three Blocks, there never was a "strongly held community value" for a sewer plant that also doubled as a "centrally located recreational asset." That was an "unsupported" "assertion." And, without that "community value," Tri-W could not have happened. (What a mind-blowing story.)


"Here assertions central to at least three of the twelve areas addressed by the statement are lacking evidentiary support in the record. Insofar as the statement provides a written account of the balancing process undertaken by the County it is substantively infirm."

The only reason I included that quote is because it contains the phrase, "substantively infirm." What a great phrase. Worth remembering. It applies to a lot in life.


"We reverse the judgment and remand the cause to the trial court which shall: (1) issue a writ of mandate vacating the Board's certification of the EIR... "

See, Sierra Club? All you had to do was mention your air-tight precedence from 1992, in 2001, when the LOCSD submitted their "substantively infirm" SOC, and a court order would have been immediately issued "vacating" the certification of the Tri-W EIR. So easy.

And that's exactly what would have happened.

On a related note, the deadline for entries for the 2007 Pulitzer Prize in investigative journalism is February 1, 2008, and if the Tri-W project isn't officially "eliminated from further consideration" (just like the Andre1 site was months ago) by then, I'm going to be pissed.

You see, in September, 2004, I wrote my second cover story for New Times, Three Blocks Upwind of Downtown, where I was the first, and, to this day, only journalist to expose the Tri-W project for what it is -- an embarrassing, illegal, "bait and switchy," park-with-a-sewer-plant mess, yet, I can't cash in on that landmark story from three years ago BECAUSE the embarrassing, illegal, "bait and switchy," park-with-a-sewer-plant Tri-W project is still, considered a "viable alternative" by county officials, despite the fact that it is in gross violation of the Coastal Zone Land Use Ordinance, its SOC was illegal to begin with (major props to my boys, Peeje-meister, the Pearlster, and Poachie for that one), and it has zero "pros," a laundry list of egregious "cons," and, oh yea, the community hates it.

And because that mess is still considered a "viable alternative" by county officials, my story -- Three Blocks Upwind of Downtown -- HAS YET TO BE RESOLVED, three years after it was published, and therefore my Pulitzer entry won't have any teeth.

And unless county officials "eliminate from further consideration" the Tri-W project by February 1, 2008, I'm going to have to wait another freaking year to apply for my Pulitzer Prize in investigative journalism... which I'll win, easily. (I mean, c'mon? Woodward and Bernstein? Give me a break. They had it easy. First, there were two of them, second, they had the substantial resources of the Washington Post behind them, and, third, they were spoon fed all of their good information by Deep Throat.

I broke the Tri-W story in September, 2004, all by my little lonesome, with nothing more than my brain, journalism experience, and my Macintosh, and, I didn't have squat for inside sources spoon-feeding me information. Sure, after Three Blocks was published, some excellent sources came forth, but when I was researching Three Blocks, that was only me following a journalistic hunch. Well, me, Bruce Buel, and the rest of the Los Osos Community Services District.)

As it is, I'm already going to have to get some sort of exemption from the Pulitzer selection committee, because Three Blocks was published in 2004, and Pulitzer policy states that the printed article that includes the investigative journalism has to be published within the calendar year.

However, they also say something about how "electronic media," like blogging, can also be considered if it follows-up the initial printed article. I'm going to try and get around that "calendar year" thing by showing the Three Blocks/SewerWatch bundle over the past three years.

I'm confident I'll get the exemption, because, if I don't, the selection committee would be punishing me for being three years, and counting, ahead of the story, and that's not right.

In hindsight, the Tri-W project should have been dumped the day Three Blocks hit the streets. Clearly.

So, please, Paavo, Noel (Noel, my brutha, of all people, you're a looooong time SewerWatch fan, where's the love?), someone, anyone with the slightest bit of juice at the county level, please, officially pull the plug on the Tri-W project by February 1, 2008. I know you want to anyway, because I also know that you guys aren't about to put your solid, professional reputations on the line for an embarrassing, illegal, "bait and switchy," park-with-a-sewer-plant mess that the 1999 - 2005 LOCSD developed.

Look, you analyzed it, as per CEQA, and it's not going to work, as per SewerWatch.

So, just pull the plug now. Why not? That way I'll have a little breathing room for writing my Pulitzer application.



  • Interesting.

    Unfortunately for you, Ron, both in 2001 and in 2005 there was substantial evidence that "out of town" was more expensive than TriW. Just because you don't believe it doesn't make it so.

    I find it troubling that you are using the TAC report in 2007 as evidence that in 2001 a different decision should have been made. Presumably different properties are available now than there were back then. Also, characteristics of the project now are different than back then.

    However, you might be asking for the ability to roll back each and every decision from the past that is later found to have been made incorrectly. The problem with this idea is is is very costly to continually go back and re-do things. Inflation alone on a $150M project is some $12M per year.

    The issue here is that Ron has his panties in a bunch because of two things. He thinks that TriW was chosen in 2001 for the wrong reasons ... because it had a park ... and he's now pissed off that he's spent six years arguing the point and he still hasn't convinced us that TriW is now the worst possible choice.

    I would suggest that even if Ron is right about the selection of TriW in 2001 it doesn't mean that he's right now in insisting TriW be off the table. If it's really the cheapest, we ought to have the option of going with it. If it's not the cheapest, why is he worried?

    Oh ... one more thing ... Ron has never ever ever offered up any evidence for his claims that TriW "wouldn't work" and "is illegal" if selected today. He's only given us reasons for thinking that possibly in the past there were some oversights in the selection and permitting process.

    Oh well ... I can't make him do anything reasonable. That became clear some two years ago when I pointed out that there are real costs of moving the project from TriW to another site and asked him to consider those costs. He blew me off. As usual.

    By Blogger Shark Inlet, at 11:57 PM, November 28, 2007  

  • Inlet Sez:"He's only given us reasons for thinking that possibly in the past there were some oversights in the selection and permitting process."

    Officially, in official documents, stating, as fact,that the Tri-W site had to be used because it allowed for a centrally located park which was a claimed to be an overwhelming commuity value when there was absolutely no evidence to support that claim is now being called an "oversight?" Hmmm, interesting.

    By Blogger Churadogs, at 7:11 AM, November 30, 2007  

  • Ann,

    You know darn well that at the time the idea was pitched (1988) and at the time the idea was financed (2001 via the 218 vote) the support for a project at TriW, a project that included a park, the support was overwhelming.

    Ron's picking at nits here when he says that there wasn't a poll or that a previous ballot for a swimming poll lost. The votes themselves show the support for the project as a whole, including the park. At least that's my claim.

    If you're gonna argue that the vote cannot be interpreted as support for TriW, with a park but instead say the vote was for a general concept of a sewer or for money to design some sewer somewhere you should probably also criticize people who say the recall and measure B were about moving the sewer like Gail does.

    By Blogger Shark Inlet, at 8:44 AM, November 30, 2007  

  • churadogs wrote:

    "Officially, in official documents, stating, as fact,that the Tri-W site had to be used because it allowed for a centrally located park which was a claimed to be an overwhelming commuity value when there was absolutely no evidence to support that claim is now being called an "oversight?""

    And I suppose popping out a grossly "substantively infirm" SOC, that instantly overrode the entire environmental review process in order to lock in Tri-W for their second project, was an "oversight," as well.

    You know what kills me about the Contra Costa County case? It's that their SOC, according to my boys, was tight on 9 of the 12 items. It was just three unsupported reasons that caused its EIR's certification to be vacated.

    However, the 2001 LOCSD's Statement of Overriding Considerations only gives TWO reasons for tossing the entire environmental review process out the window, and neither one of them holds a drop of water.

    Talk about "substantively infirm." By Contra Costa County standards, the LOCSD didn't even try. Things don't get much more "substantively infirm" than that SOC... other than Shark Inlet's reading comprehension skills, of course.

    I mean it, I could have popped out that SOC in an afternoon. And how much money was wasted on that environmental review? Millions?

    By Blogger Ron, at 11:29 AM, November 30, 2007  

  • I said at a CSD meeting once that the Tri-W project reminded me of the US Space Program's project to develop a pen that could write in the zero gravity of outer space.

    They spent millions of dollars developing this pen. It was state of the art, the best technology.

    You know what the Russians did... they used a pencil.

    By Blogger Steve, at 12:44 PM, November 30, 2007  

  • Now that the CCC permits for TriW are gone,
    What prevents the County from rebidding a scaled back, no frills no park no (regrettably) wave wall with plaque of shame for the same parcel?
    It's already been ruined, will the CCC require it to be restored to pre solution group destruction?
    Who then, could the CSD sell it to?
    I think you have to add one more agency in the CYA sewer debacle, The CCC itself.
    How convenient it would be for them if the site were selected now with a new SOC from the county listing cost as the only reason and a wish to adhere as much as possible with EPA cost guidelines?
    Well, it's fun speculating but the next step in the county process will either nail the coffin shut on TriW or it'll be so much (waaaay) cheaper that like a stinky Phoenix.....

    By Blogger Mike Green, at 11:53 AM, December 01, 2007  

  • MG wrote:

    "Now that the CCC permits for TriW are gone, What prevents the County from rebidding a scaled back, no frills no park no (regrettably) wave wall with plaque of shame for the same parcel?"

    Great question.

    There are several answers to that question. The #1 reason is that it turned out that there was no rationale whatsoever to build a sewer plant there, as I've documented over and over and over again. If the county were to go with Tri-W, they would be doing so when the only reason to build it there in the first place -- the "strongly held community value" for a sewer plant to also double as a "centrally located recreational asset -- never existed.

    The #2 reason, and it's awesome (which gives you an idea how strong the #1 reason is), is that the document used to override the environmental review process to lock in Tri-W in 2001, was illegal, as I show in the main post of this comments section.

    And, the #3 reason -- and my personal favorite -- that Tri-W is gonzo, is that smart county officials, like Noel King and Paavo Ogren, aren't about to put their solid, professional reputations on the line for an illegal, embarrassing, "bait and switchy," park-with-a-sewer plant, environmentally overridden mess, that a Parks Commissioner, and not wastewater engineers, developed.

    I mean, think about it? Who would? I wouldn't. If I was a county engineer, and my name was going to be attached to the project, I would do everything I possibly could to distance myself from the Tri-W mess. It's an embarrassing mess. There's no other way to put it.

    And, I guess the #4 reason, and it's amazing that this reason has sunk this far in the polls, is that it is no longer permitted, and the certification of the EIR for the project will immediately be "vacated" due to the fact that the statement of overriding considerations was gossly "substantively infirm."

    So, Tri-W no longer has its Coastal Development Permit in order, and the CCC wil never issue another CDP for that site because it is illegal to build a sewer plant there, as I've shown over and over and over again, and its environmental permits are no longer in order, and it's no longer funded, and it has zero "pros," and if it ever was pursued, it would face legal challenges, all warranted, from here until the year 3000.

    That's what "prevents the County from rebidding a scaled back" Tri-W project.

    The site will never work. It was never going to work the day Three Blocks hit the streets.

    Complex, I know, but, true.

    "I think you have to add one more agency in the CYA sewer debacle, The CCC itself."

    Are you kiddin'? They make my "Who to Sue" list, TWICE! (Oh, what the CCC did throughout 1998... listening to Nash-Karner, the way they did, against their brilliant staff's (i.e. Steve Monowitz) recommendation), ai-yai-yai -- that's the root of the entire train wreck, if I may mix my metaphors.

    To understand the train wreck, all one has to do is study what happened between the Coastal Commission and the Solution Group throughout 1998, Grasshoppa. It's so great because it is so interesting.

    I wrote about it here. (Boy, that's some interesting stuff, there. That stuff about the "fatal flaw" is some of my favorite sewer material. And the Sun Bulletin winning awards for their role in causing the train wreck? So good!)

    By Blogger Ron, at 10:36 AM, December 03, 2007  

  • Ron,

    Sometimes I think you just don't read. Mike Green's question is about why the County couldn't just do another SOC for TriW should they conclude it is the best site.

    Your answers either refer the previous TriW project's justification which isn't part of Mike's question or they presume that TriW won't come out on top in the analysis of possible sites or that the County will put together a sloppy SOC to justify TriW.

    I'm getting really tired of this issue coming up again and again and Ron absolutely never saying anything other than "boy I'm so good" and "TriW wasn't justified then" and " I can't imagine the County finding TriW the cheapest and best site so I'll pretend it is not a possibility".

    Might I point out that no matter how often you tell us that Steve Monowitz is angry with the previous LOCSD board, you've never offered up any quote from him or any CCC staffer that says "no way, Jose" if there is a solid SOC that justifies a sensitive site.

    Face it, Ron, there are drawbacks and legal limitations on all possible sites. Life has some trade-offs. If TriW is the cheapest site it should get approved because the other sites aren't that much better for a project.

    I would also expect that if a TriW plant is not permissible because it is ESHA, there are no sites in Los Osos that are available for developing for any reason, even if it's a home or an office. The CCC has regularly approved such developments with mitigation. Let's not lie and say that TriW but only TriW is special and should be protected.

    By Blogger Shark Inlet, at 11:52 AM, December 03, 2007  

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