Meeting Notes from 14 Jan. 2010 California Coastal Commission Hearing, on the Los Osos Wastewater Project

I. STAFF INTRODUCTION

The Staff gave a brief introduction of the issue, and explained that they felt that the proposal to build a wastewater plant on the Giacomazzi site by San Luis Obispo County (the “County”) did not raise any substantial issues. Staff said that there was an exception which allowed public facilities to be used in an agricultural zone, and that the County’s plan included a 100 ft buffer zone around identified cultural and wetland resources. On the issue of whether wetlands were properly identified, Staff said that there were plans for wetland restoration, and room for mitigation. The issues of STEP vs. gravity collection was also identified, but Staff said that they were satisfied with the proposed system of gravity collection. Staff also mentioned that a new condition in the plan, Condition 97, addressed the issue of seawater intrusion.

II. EX PARTE COMMUNICATIONS

The Commission did a reading of ex parte communications. Several communications appellants and citizens were read, which emphasized concerns over the plan’s improper definition of wetlands, and the lack of more definitive requirements to implement plans to address seawater intrusion, water management and conservation. The current plan the CCC was asked to approve currently states that the City must only “develop” plans to address these issues; no where does it state that “implementation” is necessary to conform to the plan. Other issues that were raised by citizens included the lack of “green” conditions, and information on logistical steps that will be needed, like the hauling away of septic tanks.

III. APPELLANTS:

Andrew Christie, Sierra Club: Crispy noted that the County had earlier represented that the Regional Water Board’s position as “unlikely to approve an alternate site” for the project. Crispy said that this was untrue, and that the Regional Water Board did not actually take this position. He also said that neither conditions 6 nor 9 required implementation, and he asked that the requirement to “develop” plans be replaced by a requirement to “implement” plans. Crispy further raised issues of whether the plan could accommodate the amount of “sludge” that would be generated, and questioned the excess amount of iodine that would be in pipes.

Angela Howe, Surfrider: Howe argued that the EIR used an improper standard to define “wetland.” She pointed out that the Coastal Commission uses a 1 prong test, but that the EIR used the multi-prong test like the Army Corps of Engineering standard. She pointed out that minimum flows were not analyzed adequately, and raised issues of reduced liquid inputs and compromising groundwater. Howe also argued that the pump station developments would permanently impact ESHA areas.

Keith Wimer, Los Osos Sustainability Group: Appellant argued that the plan did not address the problem of seawater intrusion, and argued that the Broderson site was not sufficient to recharge all of the land that would be taken up by the project. Regarding conditions 99, 97, 87, 88, and 101 (among others), appellant also asked that time-specific requirements for implementation of plans to address concerns/issues be included.

Julie Tacker, Resident: Tacker mainly argued that the county is responsible for the problem of seawater intrusion, and that this project did not do anything to address that problem. Tacker also raised the logistical concerns of decommissioning the existing septic system, and said that the project should specifically assume responsibility for that task.

Martha Goldin: She said that she’s not directly impacted, but that she gets water from the basin, and is concerned about the integrity of the water supply.

Jeff Edwards: He said that there is a creek that is co-terminus with the URL line, and that there is a feasible site. However, he also said that the plan lacked seawater intrusion mitigation.

Don Bearden: Bearden contended that the Midtown site was still feasible. He was angry that the Los Osos citizens were never included in surveys while this plan was being developed. He argued that the current site was more “socially infeasible,” than the Midtown site, which had been approved in 2004, and where construction had started in 2005. Bearden suggested that the Midtown site was moved because the Midtown residents refused to have a wastewater treatment plant in their backyard; Bearden argued that the Los Osos citizens didn’t want the plant in their yards either.

Chuck Cesena: Cesena said that the project would disturb Native American gravesites. He pointed out that avoidance was the only mitigation included in the plan, and that the Broderson site had already been used as mitigation 1.5 times. He asserted that there was nothing in the plan that detailed what would be done if Broderson didn’t work.

Patrick Sparks, Los Osos Legal Defense Fund: Sparks argued that the treatment plan design was flawed, and that the suggested plan was based on underground pipes which would break [like Northridge?]. He emphasized that if there was such a break, there would be no spot fixing – rather, the whole thing would have to be redone.

Al Barrow: Appellant stated that there would be 22,000 joints in the pipe system, and that use of a gravity system would result in leaks.

Steve: Appellant argued that the plan amounted to a regulatory taking of some of his property, and emphasized that there has been extraordinary delay which was caused by the county.

Piper Reilly: Reilly argued that a STEP system would address issues of dewatering and seawater intrusion better than a gravity collection system. She stated that a low pressure system would be better, and argued that if the plan went forth in its current state, raw sewage would leak. She also mentioned multiple pump systems on ESHA.

Appellant: Appellant argued that Los Osos was running out of water, and that although the plan mentioned methods related to disposal, it did not adequately address the issue of conveying [water? Waste?]

Alon Perlman: Perlman stated that he actually supported the plan, until condition 97 was modified. [Perlman said something about a bird; I missed the relevance]. Perlman also pointed out that after Broderson was taken into consideration, there was still 300-400 acres of water unaccounted for.

IV. APPELLEE COUNTY

County Supervisor Bruce Gibson: Gibson began by identifying the source of his authority for the project as SA Bill 2701. He asserted that there was no other feasible project that was more protective of the environment than the one being currently discussed.

Mark Hutchinson, Environmental Program Manager, Dept. of Public Works: Hutchinson asserted that the project used the Coastal Commission’s definition of “wetland.” He explained that the field engineers used Army Corps maps and forms, but that they had in fact defined “wetland” with the proper standard.

V. STAFF

On the issue of whether the treatment plant would succeed or fail, Staff noted that while no one could guarantee success, there was no evidence that it wouldn’t work, and that the Regional Board seemed supportive of the project. On the issue of wetlands, Staff seemed to avoid going into whether it was or wasn’t properly defined. Instead, Staff pointed out that the LCP allowed the citing if it was the only feasible alternative; Staff held the view that Giacomazzi was the only feasible site.

On addressing the issues of disposal, groundwater supply, and seawater intrusion, Staff said that a condition required that water go back into the basin, and that different allocations of the water had been specified. As far as the retrofitting/double-dipping of Broderson, Staff explained that the mitigation at Broderson had never occurred at Tri-W. Staff did concede that Tri-W now holds an outstanding violation, which will stay with the land and any future owners should the property change hands.

On water impacts and riparian rights, Staff pointed out that Special Condition 101 required a set percentage to go back to a leach field.

Finally, Staff pointed out that under the Coast Act, the Commission’s review of the wastewater treatment plan was limited to citing, i.e., land-use types of questions. The Commission has no authority to address issues of water quality; those are left to the Regional Board.

VI. COMMISSIONERS

Cmmr. Achadjian: He took the position that no substantial issue existed.

Cmmr. Shallenberger: She took the position that no substantial issue existed after asking several questions. She explained that she had been concerned about (1) whether double-dipping was occurring with Broderson, (2) whether the Regional Water Quality Control Board felt that there was a true, feasible alternative, (3) whether “wetland” had been properly determined, and (4) whether the plan had calls for implementation. She felt that these concerns had been adequately discussed. She said that the problem of water pollution was such that something had to be done, and that she was therefore endorsing this plan. (After all Commissioners had a chance to speak though, she changed her vote to agree that there was a substantial issue.)

Cmmr. Wan: She said that a substantial issue existed. She said that her concerns about the double-dipping with the Broderson site were not allayed. She said that 11 acres had been set aside for Midtown, 72 for Tri-W, and now 9 for this project – but that the County was still using the same 72 acres.

She also indicated concern over the plan’s failure to require any “implementation.” If the County failed to fulfill its representations regarding this plan later, an enforcement action belonged to the citizens, not to the Coastal Commission. However, without any requirement to “implement,” Wan pointed out that the citizens lacked any enforcement cause of action.

She then turned to alternatives to Broderson, and explained her disturbance at the lack of one. The plan discussed using Broderson in phases to see if it worked. Wan asked the question, “what if it doesn’t?” There was nothing in the plan that indicated alternate solutions, and she felt that this should be rectified.

Cmmr. Sanchez: She agreed with Cmmr. Wan’s points, and said a substantial issue existed.

Cmmr. Kruer: He said that this was the longest substantial issue hearing he had seen; that alone indicated to him that there was a substantial issue.

VII. DECISION: DE NOVO HEARING WAS GRANTED

Roll Call:

• Yes, move to find NO substantial issue: Achadjian, Blank, Burke, Kram, Neely
• No, against motion to find no substantial issue: Bloom, Kruer, Mirkirimi, Sanchez, Shallenberger, Stone, Wan
• Decision: In a 5-7 vote the motion failed, thus the Commission finds substantial issue and moves to de novo hearing on the matter.

For the de novo hearing, Staff is tasked with looking at the following issues:

• Wetland delineation
• “Double-dipping” re: mitigation for ESHA impacts at Broderson
• Implementation requirements in the plan regarding water conservation and use
• Specifics on where and how water would be distributed
• Staging area
• Removal/disposal of the 5000 septic tanks