Making the Governor's AB 2701 "Signing Statement" Disappear
[Note: My open letter to Warren Jensen, County Counsel for San Luis Obispo County. Sent June 6, 2009.]
Dear Mr. Jensen,
I think you're going to find this interesting.
I did something in 2005, that, I'm pretty sure, can make the Governor's "signing statement" to AB 2701 disappear today.
As you probably know, with his "signing statement" to that law, the Governor essential said that another SRF loan would not be granted for the Los Osos wastewater project until the roughly $6 million was repaid from the first loan for the previous failed project.
What I did in 2005, would likely make that "signing statement" disappear today, thus paving the way for SLO County to land another State Revolving Fund loan for the Los Osos wastewater project, AND saving the community of Los Osos some $6 million in the process, but I'm going to need your office's help to do it.
Last year, I brought this exact subject to the attention of Assemblyman Blakeslee's office, and, although they called it, "clearly an intriguing question," our discussions ended when they told me that I would need to get a "legal ruling" on my argument, to which I responded, "What? Are there no lawyers in Sacramento?"
And, that was that. Assemblyman Blakeslee's office did not pursue my "clearly intriguing question," that could potentially save the community of Los Osos millions upon millions of dollars.
I then attempted to take my argument to the State Attorney General's office, but their phone message said that the AG's office can not handle complaints against state agencies, because the AG, by law, is required to represent those state agencies. (An amazing situation -- when it comes down to the People of California vs. State Agencies, the AG is forced, by law, to represent the State agencies over the People of California. Remarkable.)
So, now, I'm volleying the ball into the County's court.
Before I get to the nuts and bolts of my argument, I want to start with my conclusion:
Why should the good people of Los Osos have to pay for the State Water Resources Control Board's Division of Financial Assistance's $6 million mistake back in 2005?
Here's why I ask that question:
Because I knew I was right, and because I also wanted to get my argument time-stamped, about a week before state officials released the first installment of the SRF loan for the Los Osos CSD wastewater project in 2005, for about $6 million, I formally filed a challenge (signed and dated) to that loan, as per SRF Policy, arguing that it was illegally funding an elaborate, multi-million public park for Los Osos.
I was right (still am), and that loan should have never been released due to my challenge.
The SWRCB's Division of Financial Assistance office erroneously concluded, in 2005, that the elaborate, multi-million public park that LOCSD officials designed into their Tri-W sewer plant was "mitigation," and therefore "eligible" for State Revolving Fund money, so they made the decision to fund it, using SRF money.
They were wrong, of course.
According to the SRF's own policy, for something to be considered "mitigation measures," it must be "mandated by State and/or Federal agencies," in this case, the SWRCB's Division of Financial Assistance office concluded, erroneously, that the park was "mandated" by the Coastal Commission.
It wasn't, and I can prove it.
According to the Tri-W Development Permit, prepared by the staff of the Coastal Commission, it reads:
"The LOCSD has agreed to reincorporate public amenities..."
Furthermore, according to a June 28, 2004 LOCSD document, "... the (LOCSD) Board on June 17, 2004 agreed to add the picnic area, tot lot, amphitheater, and community garden (back into the Tri-W sewer plant)..."
Clearly, according to the staff of the Coastal Commission, and the LOCSD itself, it was the LOCSD's choice on whether to "reincorporate" the multi-million dollar park.
They "agreed to reincorporate." They "agreed to add."
That makes it impossible for the Coastal Commission to have "mandated" the park as "mitigation measures."
I have also spoken with Steve Monowitz, the former permit supervisor for the CCC that was responsible for drafting the Tri-W project development permit, and he agrees with me on this very important point.
And that means, according to the SRF Policy, the amphitheater, picnic area, tot lot, dog park, etc, that were planned for the Tri-W sewer plant were "decorative items," just like I argued in my formal challenge, and, according to the SRF Policy:
"Ineligible (for SRF funding): f. Decorative items (art work, sculptures, reflective ponds, fountains, etc.);"
I'm right, and the SWRCB's Division of Financial Assistance office is wrong.
That loan should have never been released in 2005 until the park funding issue was cleared up.
The State failed to take that highly prudent action, and, instead, hastily made the decision to fund, with SRF money, a multi-million dollar park for Los Osos, while other California communities, like Mariposa (as I first exposed on my blog,SewerWatch) couldn't get a dime of SRF money for their badly needed, amphitheater-less, sewer projects.
So, now, in 2009, my argument is that the people of Los Osos should not have to pay back that $6 million from the SRF loan, at least not what was spent (read: wasted) from the original loan.
Again, my conclusion:
Why should the good people of Los Osos have to pay for the SWRCB's Division of Financial Assistance office's gigantic, $6 million mistake?
I'm right. They shouldn't. That's not fair.
Here's the link to the SRF Policy.
On page 30, it reads:
"Eligible (for SRF funding)... e. Mitigation measures (except for land) mandated by State and/or Federal agencies;"
[Note: Notice how the Policy does NOT read: "Eligible (for SRF funding)... e. Mitigation measures (except for land) that are a 'condition of approval' in the project's development permit;"
That's NOT what the SRF Policy says, however, that is exactly what the SWRCB's DFA is arguing. They told me (yes, Darrin Polhemus from the DFA at the time, responded to my formal challenge) that simply because the park ended up as a "condition of approval," that it was eligible for SRF funding. But what they failed to take into account, is that there are other reasons why something can end up as a "'condition of approval," other than "mandated mitigation."
In the case of the park in Tri-W sewer plant, that reason was because the LOCSD, from 2001 - 2004 played "bait and switchy" (that's the Coastal Commission's own phrase) with the Commission on the Tri-W "sewer-park" issue, and THAT's why it ended up as a condition of approval -- because of "bait and switchy." "Mitigation measures" had absolutely nothing to do with the fact that the park was a condition of approval in the development permit. In fact, the decision to fund the park with SRF money actually REWARDED the LOCSD for playing "bait and switchy" with the Coastal Commission... over a four year span.]
and;
"Ineligible (for SRF funding)... f. Decorative items (art work, sculptures, reflective ponds, fountains, etc.);"
Clear as day: The multi-million dollar park planned for the Tri-W sewer plant was NEVER "mandated by State and/or Federal agencies." If the LOCSD "agreed to reincorporate" the park, then, of course, they could have agreed to NOT "reincorporate" the park.
Not "mandated" by the Coastal Commission, obviously. Not mitigation. Therefore, the only thing left in the SRF Policy to describe the elaborate, multi-million dollar public park that the LOCSD originally designed into their sewer plant beginning in 2001, with their original site plan of the Tri-W sewer plant, is: "Decorative items." Ineligible for SRF funding.
Considering that SLO County officials are currently seeking another SRF loan to help finance the LOWWP, I believe that it is the County's fiduciary duty today to get that "legal ruling" on my formal challenge, that Mr. Blakeslee's office mentioned (but did not pursue).
I'm looking forward to reading your office's response to my "clearly intriguing question."
Thank you for your time on this matter,
Ron
P.S. Attached to this e-mail is a copy of my (1-page) formal challenge. And, right now, that document is 100-percent relevant, and it is sitting in a file cabinet at the offices of the SWRCB's Division of Financial Assistance.
Dear Mr. Jensen,
I think you're going to find this interesting.
I did something in 2005, that, I'm pretty sure, can make the Governor's "signing statement" to AB 2701 disappear today.
As you probably know, with his "signing statement" to that law, the Governor essential said that another SRF loan would not be granted for the Los Osos wastewater project until the roughly $6 million was repaid from the first loan for the previous failed project.
What I did in 2005, would likely make that "signing statement" disappear today, thus paving the way for SLO County to land another State Revolving Fund loan for the Los Osos wastewater project, AND saving the community of Los Osos some $6 million in the process, but I'm going to need your office's help to do it.
Last year, I brought this exact subject to the attention of Assemblyman Blakeslee's office, and, although they called it, "clearly an intriguing question," our discussions ended when they told me that I would need to get a "legal ruling" on my argument, to which I responded, "What? Are there no lawyers in Sacramento?"
And, that was that. Assemblyman Blakeslee's office did not pursue my "clearly intriguing question," that could potentially save the community of Los Osos millions upon millions of dollars.
I then attempted to take my argument to the State Attorney General's office, but their phone message said that the AG's office can not handle complaints against state agencies, because the AG, by law, is required to represent those state agencies. (An amazing situation -- when it comes down to the People of California vs. State Agencies, the AG is forced, by law, to represent the State agencies over the People of California. Remarkable.)
So, now, I'm volleying the ball into the County's court.
Before I get to the nuts and bolts of my argument, I want to start with my conclusion:
Why should the good people of Los Osos have to pay for the State Water Resources Control Board's Division of Financial Assistance's $6 million mistake back in 2005?
Here's why I ask that question:
Because I knew I was right, and because I also wanted to get my argument time-stamped, about a week before state officials released the first installment of the SRF loan for the Los Osos CSD wastewater project in 2005, for about $6 million, I formally filed a challenge (signed and dated) to that loan, as per SRF Policy, arguing that it was illegally funding an elaborate, multi-million public park for Los Osos.
I was right (still am), and that loan should have never been released due to my challenge.
The SWRCB's Division of Financial Assistance office erroneously concluded, in 2005, that the elaborate, multi-million public park that LOCSD officials designed into their Tri-W sewer plant was "mitigation," and therefore "eligible" for State Revolving Fund money, so they made the decision to fund it, using SRF money.
They were wrong, of course.
According to the SRF's own policy, for something to be considered "mitigation measures," it must be "mandated by State and/or Federal agencies," in this case, the SWRCB's Division of Financial Assistance office concluded, erroneously, that the park was "mandated" by the Coastal Commission.
It wasn't, and I can prove it.
According to the Tri-W Development Permit, prepared by the staff of the Coastal Commission, it reads:
"The LOCSD has agreed to reincorporate public amenities..."
Furthermore, according to a June 28, 2004 LOCSD document, "... the (LOCSD) Board on June 17, 2004 agreed to add the picnic area, tot lot, amphitheater, and community garden (back into the Tri-W sewer plant)..."
Clearly, according to the staff of the Coastal Commission, and the LOCSD itself, it was the LOCSD's choice on whether to "reincorporate" the multi-million dollar park.
They "agreed to reincorporate." They "agreed to add."
That makes it impossible for the Coastal Commission to have "mandated" the park as "mitigation measures."
I have also spoken with Steve Monowitz, the former permit supervisor for the CCC that was responsible for drafting the Tri-W project development permit, and he agrees with me on this very important point.
And that means, according to the SRF Policy, the amphitheater, picnic area, tot lot, dog park, etc, that were planned for the Tri-W sewer plant were "decorative items," just like I argued in my formal challenge, and, according to the SRF Policy:
"Ineligible (for SRF funding): f. Decorative items (art work, sculptures, reflective ponds, fountains, etc.);"
I'm right, and the SWRCB's Division of Financial Assistance office is wrong.
That loan should have never been released in 2005 until the park funding issue was cleared up.
The State failed to take that highly prudent action, and, instead, hastily made the decision to fund, with SRF money, a multi-million dollar park for Los Osos, while other California communities, like Mariposa (as I first exposed on my blog,
So, now, in 2009, my argument is that the people of Los Osos should not have to pay back that $6 million from the SRF loan, at least not what was spent (read: wasted) from the original loan.
Again, my conclusion:
Why should the good people of Los Osos have to pay for the SWRCB's Division of Financial Assistance office's gigantic, $6 million mistake?
I'm right. They shouldn't. That's not fair.
Here's the link to the SRF Policy.
On page 30, it reads:
"Eligible (for SRF funding)... e. Mitigation measures (except for land) mandated by State and/or Federal agencies;"
[Note: Notice how the Policy does NOT read: "Eligible (for SRF funding)... e. Mitigation measures (except for land) that are a 'condition of approval' in the project's development permit;"
That's NOT what the SRF Policy says, however, that is exactly what the SWRCB's DFA is arguing. They told me (yes, Darrin Polhemus from the DFA at the time, responded to my formal challenge) that simply because the park ended up as a "condition of approval," that it was eligible for SRF funding. But what they failed to take into account, is that there are other reasons why something can end up as a "'condition of approval," other than "mandated mitigation."
In the case of the park in Tri-W sewer plant, that reason was because the LOCSD, from 2001 - 2004 played "bait and switchy" (that's the Coastal Commission's own phrase) with the Commission on the Tri-W "sewer-park" issue, and THAT's why it ended up as a condition of approval -- because of "bait and switchy." "Mitigation measures" had absolutely nothing to do with the fact that the park was a condition of approval in the development permit. In fact, the decision to fund the park with SRF money actually REWARDED the LOCSD for playing "bait and switchy" with the Coastal Commission... over a four year span.]
and;
"Ineligible (for SRF funding)... f. Decorative items (art work, sculptures, reflective ponds, fountains, etc.);"
Clear as day: The multi-million dollar park planned for the Tri-W sewer plant was NEVER "mandated by State and/or Federal agencies." If the LOCSD "agreed to reincorporate" the park, then, of course, they could have agreed to NOT "reincorporate" the park.
Not "mandated" by the Coastal Commission, obviously. Not mitigation. Therefore, the only thing left in the SRF Policy to describe the elaborate, multi-million dollar public park that the LOCSD originally designed into their sewer plant beginning in 2001, with their original site plan of the Tri-W sewer plant, is: "Decorative items." Ineligible for SRF funding.
Considering that SLO County officials are currently seeking another SRF loan to help finance the LOWWP, I believe that it is the County's fiduciary duty today to get that "legal ruling" on my formal challenge, that Mr. Blakeslee's office mentioned (but did not pursue).
I'm looking forward to reading your office's response to my "clearly intriguing question."
Thank you for your time on this matter,
Ron
P.S. Attached to this e-mail is a copy of my (1-page) formal challenge. And, right now, that document is 100-percent relevant, and it is sitting in a file cabinet at the offices of the SWRCB's Division of Financial Assistance.
posted by Ron at
10:45 AM
3 Comments:
"Eligible (for SRF funding)... e. Mitigation measures (except for land) mandated by State and/or Federal agencies;"
[Note: Notice how the Policy does NOT read: "Eligible (for SRF funding)... e. Mitigation measures (except for land) that are a 'condition of approval' in the project's development permit;"
Pretty tight eh, "r" and crew?
Looks like you could be center stage soon.
By
Watershed Mark, at 10:57 PM, June 08, 2009
Mark wrote:
"Eligible (for SRF funding)... e. Mitigation measures (except for land) mandated by State and/or Federal agencies;"
[Note: Notice how the Policy does NOT read: "Eligible (for SRF funding)... e. Mitigation measures (except for land) that are a 'condition of approval' in the project's development permit;"
Pretty tight eh, "r" and crew?
Looks like you could be center stage soon."
Whoa, did they blow that. What were they thinking?
I originally tracked down the fact that the Division of Financial Assistance was, indeed, going to fund that multi-million dollar park, during a 2005 phone conversation I had with Darrin Polhemus, then of the DFA (and, yes, I do find it interesting that he is no longer with that department).
I asked him, point blank, "How is that park in the Tri-W sewer plant being funded?"
He told me that his office was going to finance the entire project, including the multi-million dollar park.
I said, "Oh, Darrin, you've got to be kidding?"
That's when he said they were funding it because they considered it "mitigation" because it was a "condition of approval" in the Tri-W development permit.
I said, "Do you know why it's a "condition of approval?" About "bait and switchy?'"
He said, "I'm aware of the twisted way the park ended up in the project."
I said, "Darrin, I don't think you are."
He said, "Ron, we're going to fund the entire project."
I said, "You're making a huge mistake. Don't cut that check."
He said they were going to cut the check, and that was the end of our conversation.
Shortly after that phone call, I quickly popped out my challenge, as per SRF Policy -- the section on "Eligibility Disputes" -- and e-mailed it to him.
It's only a page long, and it only took me about 15-minutes to write.
I knew it was a long shot that the DFA would read it, and actually come to their senses, and withhold disbursement of the funds, but, like I wrote in my main post, I knew I was right, and I wanted to get my argument time-stamped.
I was clear on "bait and switchy," and Polhemus wasn't. Wow. What a f-up.
Now, here we are, four years later. The ESHA at the Tri-W site is ripped up, millions of dollars were needlessly wasted, and my little ol' 4-year-old, one page document, that's sitting in a file cabinet at the offices of the DFA, could bring the entire Tri-W house of cards a-crashin' down, and save Los Osos a fortune in the process.
One tiny, little legal ruling: The park in the Tri-W sewer plant: "Mandated mitigation measures" or "Decorative Items?"
Clearly, it's "Decorative Items." I'm right, and I have a stack of excellent, air-tight evidence that shows I'm right... that's WHY I did my challenge in the first place.
I'm right, and Gov. S., with his AB 2701 "signing statement," is wrong. Los Osos shouldn't have to pay that cash back. The good people of Los Osos didn't f-up. The SWRCB's Division of Financial Assistance f-d up.
Cool, huh?
And when that ruling happens, step back and watch the fireworks. It should be quite a display. Think about the implications of that ruling. It'll blow you away.
One of those implications, and this GREAT, is that those ridiculous CDOs that Briggs slapped on those 45 innocent families, should also disappear. The sewer delays weren't their fault. If the DFA had just listened to me, and not cut that first check, the Tri-W project would have come to an immediate grinding halt, and what is happening today, with the county's process, would have happened starting back in 2005.
Of course, the part I enjoy watching these days, is the people that are responsible for the Tri-W embarrassment have to fight, tooth and nail, my effort to save their community millions upon millions of dollars. Awesome!
By
Ron, at 10:56 AM, June 09, 2009
I wrote:
"If the DFA had just listened to me, and not cut that first check, the Tri-W project would have come to an immediate grinding halt, and what is happening today, with the county's process, would have happened starting back in 2005."
Upon further review... had the DFA just listened to my super-tight argument in 2005, the Tri-W project would have come to an immediate grinding halt, and what likely would have happened with the project, is that the only thing that would have changed would have been the location of the treatment facility.
As I also originally exposed at this link, the 2004 LOCSD actually had plans for ANOTHER sewer project, with cost estimates down to the hundreds of dollars, and that project consisted of the exact same collection system as the Tri-W project, and a small pump station at the Tri-W site, and then a pipe that carried everything to a site out of town... downwind.
In other words, nearly the EXACT same project that the county is proposing today.
So, had the DFA simply listened to me when I was on the phone with them that day, here's what would have happened:
1) The Tri-W site would have never been ripped up.
2) The millions of dollars that was wasted ripping up all of that ESHA, and the streets on Los Osos, would have, instead, gone to other cash-strapped California communities, like Mariposa, for their badly needed, amphitheater-less sewer projects.
3) The CDOs would have never been issued.
3) The recall election probably would have never even happened, and if it had, it certainly wouldn't have been successful, because, as the recent community survey showed, nearly everyone wanted a sewer system, they just didn't want the sewer plant in the middle of their beautiful coastal town, understandably, so, if the DFA had not made the decision to (illegally) fund that park, it would have FORCED the LOCSD to build their alternative project... out of town, and that would have appeased nearly everyone.
4) And, because that alternative project was damn near ready to go back in 2005, it wouldn't have necessitated nearly the amount of work that the county is currently going through, and so Los Osos would almost certainly have a functioning sewer system right now, with a treatment facility out by the cemetery somewhere.
So simple, and ALL of that would have happened if the State Water Resources Control Board's Division of Financial Assistance had simply listened to me on the phone that day.
Absolutely amazing.
By
Ron, at 12:42 PM, June 09, 2009
Post a Comment
<< Home