The Potential Unintended Consequences of the Citizens for Clean Water's Lawsuit Are Bombshells

Since first reporting that a newly amended lawsuit recently filed by the Los Osos group, Citizens for Clean Water, will be heading to trial this fall, according to CCW sources, SewerWatch has uncovered several potential, yet unintended, bombshells that could result from that legal action, if it's successful.

To be clear, according to sources, the sole purpose of the CCW lawsuit is to "vacate" the enforcement actions that were, in 2006, given to 46 randomly selected property owners by the Regional Water Quality Control Board, due to delays in building a community-wide sewer system for the town.

To accomplish their objective, CCW, in its petition, is asking the courts to "invalidate" a document titled, "Resolution 83-13."

According to a July, 9, 2004, document prepared by the staff of the RWQCB, where staff considers the impact of rescinding 83-13, "Resolution No. 83-13 provides the basis for most of the enforcement actions (existing and future) in Los Osos. Therefore, if Resolution No. 83-13 were rescinded, such action would eliminate the legal basis (for) Cease and Desist Orders."

However, 83-13 is also the same document that originally established the Los Osos "Prohibition Zone" in the first place, and made it illegal to continue to discharge from the septic tanks in the PZ.

In their July 9, 2009, document, RWQCB staff writes, "Resolution No. 83-13, adopted by the Regional Board in 1983, formed the onsite discharge prohibition area."

In other words, not only is Resolution 83-13 the document that "provides the basis for most of the enforcement actions," but it's also the only document that is legally necessitating a sewer system in Los Osos. (Note: Technically, 83-13 only makes it illegal to continue to discharge from septic tanks in the PZ. It doesn't specifically mandate a sewer system. However, the RWQCB has made it clear that the only way to accomplish zero discharge from septic tanks, is through a Prohibition Zone-wide sewer system.)

If the CCW lawsuit is successful, and 83-13 is ruled "invalid," there will be no legal mandate for Los Osos to build a community-wide sewer system.

In e-mails to SewerWatch, spokesperson for CCW, Gail McPherson, wrote, "We are not trying to overturn 83-13 to stop a project. The intent is to have the enforcement orders vacated. If the water board wants to do enforcement they need to start over and do it right. It isn't about the sewer-it is about justice!"

She added, "The need for a sewer may be challenged by someone, somewhere, but that is not the purpose and intent of the lawsuit. More important is the blatant abuse of the water board powers to affect elections, to selectively enforce and violate due process protections. The Judge has some very good reasons to rule against the water board and make them do their job right."

She also added, "(The Judge) could also simply rule in our favor and vacate orders based on the violation of procedural issues and leave 83-13 as it stands."

Nonetheless, in their lawsuit, CCW's attorney, Shauna Sullivan argues, "Since Respondents (the RWQCB) bases its Cease and Desist Orders on Resolution 83-13, Petitioners (CCW) are entitled to challenge 83-13..."

Which sets up a very interesting situation -- If Citizens for Clean Water is successful in their effort for "justice" and "due process" for the 46 randomly selected property owners this fall, and 83-13 is ruled "invalid," the very need for a sewer project in Los Osos would be left wide open for challenge, due to the fact that 83-13 is the basis for both the enforcement actions AND the discharge prohibition, itself.

In their brief, CCW argues that 83-13 contains "admitted irregularities," and "was not properly adopted" by State agencies.

Furthermore, a recent "Proposition 218 election" that was conducted by county officials that asked Los Osos property owners if they would be willing to assess themselves some $25,000 to pay for the sewer project that County officials are currently proposing, passed by more than 80-percent of the vote.

However, that election was held under a valid Resolution 83-13, and RWQCB authorities made it clear before that election, that if there wasn't a sewer project on-line in Los Osos by January 1, 2011, the Board was going to start fining the entire community, forcing many to potentially lose their homes.

Considering CCW's lawsuit, the question must be asked: What would those election results have looked like if there was no legal mandate to build a sewer system?

Would more than 80-percent of Los Osos property owners still vote to assess themselves $25,000 just because they think a community-wide sewer is the right thing to do?

For perspective, consider another SLO County community that relies solely on septic systems to handle their wastewater -- Santa Margarita.

Imagine if a few ordinary citizens in Santa Margarita were to, without any pressure from State or County agencies, start saying, "You know what we think this community needs? A sewer system. Let's put it to a vote to see if property owners want to add $5,000 - $10,000 to their property tax, even though our current septic systems seem to be working fine."

What would the result of that election in Santa Margarita be if it were held today?

The answer, it would appear, is obvious.

Without a valid 83-13, Los Osos is just another Santa Margarita.

Then there's the other potential bombshell associated with a suddenly invalid 83-13.

As a result of the discharge prohibition in Los Osos, a building moratorium has been in place in the community since 1988, and that has made it illegal to develop on some 600 vacant lots in the PZ until a sewer system, and other important sewer-related documents, are in place.

However, according to the RWQCB's July 9, 2004 document, "Rescinding the resolution (83-13) would essentially allow development (at least from the Regional Board perspective) of those 600 lots within the prohibition area."

In their petition, CCW calls Resolution 83-13 "ripe for review," and adds, "Over the last two decades... the RWQCB has refused to hear any arguments or challenges to the legality of Resolution 83-13."

That could end this fall.

"The trial will likely be in the fall," McPherson said.

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