Synopsis: Attention was focused on the final review of three favored sites for the new Morro Bay/Cayucos wastewater treatment plant at their meeting on November 10 until a survey was mailed by the city on October 24 to about 300 residents asking if they would have interest in supporting a water reclamation program, which raised questions about the very high proposed cost of the water, whether that cost might purposely generate opposition, how the survey came about and whether it may have violated the state Brown Act by possibly being developed, approved and distributed without public knowledge.
With no forewarning, a survey was circulated among a select group of 300 Morro Bay and Cayucos residents on October 24 to gauge their "potential interest in a water reclamation program" that could be made possible by the new wastewater treatment plant now being planned by the two communities. One problem is the price of that reclaimed water cited in the survey is sky high, one resident and several water experts say, which they suspect may be by design.
The handling of the survey—out of sight from the public—may also raise questions about whether the state's open meeting law, the Brown Act, was violated in the process. But city attorney Rob Schultz says it was not.
No basis for the cost—$2,000 per acre foot—of the water is provided in the survey. And Schultz said he had no immediate explanation of it.
But if that high cost scares people away from supporting a reclamation program, which has been a volatile controversy for years, maybe that is what the Cayucos Sanitary District board wants because it has opposed building a plant with capability to produce large quantities of high-quality recycled water for a long time. What the Morro Bay City Council wants still isn't clear, some residents feel, in the way of recycled water from the new plant.
In spite of the opposition of Cayucos and uncertainty of Morro Bay, the California Coastal Commission has stated flatly the Morro Bay's own Local Coastal Plan (LCP) "clearly requires the City to pursue water reclamation as part of this WWTP (wastewater treatment plant) project."
As one resident who has been following the WWTP issue for years said: "They are trying to shock the people into stating, 'No way will we pay that price for recycled water,' so most people will fall right into their hands and the JPA will say see, I told you so—it is too expensive to recycle, and no one wants to pay!"
JPA refers to the Joint Powers Agreement, under which the City Council and Cayucos Sanitary District board own and operate the present WWTP and are planning the new one.
A staff member of a state water agency said, "$2000/acre foot of water is very expensive. If they keep harping on that point, they're not going to get any takers (among potential consumers). They don't want to do it, so they aren't thinking through ways to make it work."
An engineer with sewage plant experience said he thought the $2,000 figure is very high, and he was trying to understand where that number came from.
If the reaction of residents who participate in the survey turns out to be as these two people predict, then Morro Bay and Cayucos (MB/CSD) can go to the California Coastal Commission staff, which has virtually mandated a new plant with extensive capacity to produce top-quality recycled water in order to lower the cost of water in Morro Bay, and say the residents won't support it so it is a waste of time.
How many actually have been made aware of the opportunity to participate in the survey is unknown because the letter to 300 addresses announcing the survey and some emails sent around circulating information about the survey also included a link where anyone can vote (Survey Monkey). However, the survey's requested information and questions clearly are geared toward commercial users of water.
No surveys of residents about use of reclaimed water in their homes is planned, Schultz said.
Until the survey popped up, the focus was expected to be on the next JPA meeting scheduled for Thursday, November 10, starting at 6 p.m. at the Morro Bay Community Center, when a follow up report on fine screening of the three top-ranked sites for a new plant is expected to top the agenda. Those three sites, starting with the top-rated are the current WWTP site,160 Atascadero Road, Morro Bay: the Chevron Facility Hillside Site, located northeast of the city off Toro Creek Road at the Morro Bay-Cayucos boundary line in the county, and the Righetti Property, east of the city on Highway 41. No estimated distance to the Righetti property was provided.
For a map showing the locations of these three sites and others that were considered, see Figure 1 at Page 7 in the (Rough Screening Alternative Sites Evaluation) prepared by Dudek engineering for MB/CSD and described in last month's Journal (Slo Coast Journal).
One key reason that the current WWTP site is ranked first in the rough screening evaluation is because it is the only one among the 17 reviewed in the evaluation that is not assigned a "minus" in the category of "implementation" on the basis of expected "project delay (of) approx. 4‐5 yrs. for prelim design,environmental review & local permitting."
The Dudek evaluation explains that potential alternative sites which would require a significant amount of additional planning, environmental analysis, development review and project design would result in "delaying required upgrades to the existing wastewater treatment system necessary to ensure compliance with current (federal operating) permit requirements in a reasonable time frame and/or would require permit modifications or the issuance of a new. . . permit . . . "
But it doesn't explain why the top-ranked current WWTP site would not also require such planning, analysis, development review, and project design, especially if the planned plant is designated to be a "new project," as the California Coastal Commission (CCC) staff has insisted it is, and not an "upgrade" that MB/CSD continue to call it in the face of the CCC saying it is not an upgrade . The clear assumption in the evaluation is that building on the present WWTP site would not face delays to meet those planning and permitting requirements that the others would—without explaining why it wouldn't.
Or possibly MB/CSD assumes that the design work done to date, most of it by Montgomery Watson Harza (MWH), is mostly or completely finished, and therefore little, if any, additional time would have to be spent on these planning tasks. In that case, it would have to assume that the preliminary project design by MWH is sufficient to meet all these requirements, despite the serious questions that have been raised around the country about MWH's integrity and trustworthiness (Slo Coast Journal.com - October 2010/October).
As was reported in the October 1 Slo Coast Journal (Slo Coast Journal.com - WWTP Floodzone), the current WWTP appears to be located at least partially in a 100-year flood plain and in a tsunami zone on the shore of Estero Bay in violation of the city's own LCP, as the Coastal Commission has emphasized. Some thought that based on a recently-released new map of that flood plain, MB/CSD might argue that it is not in the flood plain and, therefore, would not be excluded from consideration, as the Coastal Commission concluded is must be.
However, the Dudek evaluation does concede that the WWTP site is in the "100 yr flood zone (portion)." In other words, part of the site is. It would seem obvious that if that site were proposed by MB/CSD for construction of a new plant, it would be proposed on that "portion" that is not in the flood zone (if it is established that there is such a portion). But the evaluation does not explain whether that is the case.
The evaluation also acknowledged that the WWTP site has negative aspects under "Public Access/Recreation" because of its "proximity to (the) ocean" and under "Visual Resources" because of its "proximity to (the) shoreline." On both counts, the Coastal Commission found the site would be unacceptable because it would be inconsistent with the LCP, which requires the WWTP area to be used for recreational purposes and that public views not be obstructed by a new and larger WWTP building.
As far as whether all this would allow the WWTP site to qualify for a required Coastal Development Permit from the CCC to build, the evaluation said that will require additional study. What that means is not explained.
What all this underscores is how nebulous the sites evaluation is and the many questions it leaves unanswered.
In spite of all the apparent uncertainties surrounding the three sites (all the other 14 sites were eliminated for further review based on the criteria used by Dudek, which some find questionable), reactions to the controversial water survey that was just distributed may compete for attention at the JPA meeting.
Perhaps the biggest question about the survey is its origin, even eclipsing the cost.
In answer to questions about the authorization of the city staff by the City Council to conduct the survey, Schultz said the "CCC Staff requested that the City update the market research for reclaimed water prior to the de novo hearing," which is the key, potentially-final CCC hearing on the project that Dudek now says it expects to take place next March or April, "and staff said ok and sent out the survey."
"The survey was a part of that work effort," he continued. "No discussions occurred with City Council regarding the survey and there was no violation of the Brown Act in regard to the survey. Council authorized staff to work with CCC Staff to bring the project to a de novo hearing. This direction occurred when it authorized the CCC approval process work plan earlier this year. The survey is part of that work effort."
Several questions seem apparent. One, when and in what form did the City Council, and possibly the CSD board, authorize the staff to work with the CCC staff to develop the project so it could be submitted to the CCC in final form? What specifically was authorized—to develop the project, including conducting such a survey, with no oversight by the two elected bodies? If there were no discussions among the two bodies and their staffs, how could they be informed about the nature of the survey and its contents?
And if there was no such oversight, how could the community be informed about it as well as be afforded an opportunity to make comments on it before it was implemented? Presumably, if the Council was informed about the details of the survey, it would have been in public session, which it apparently was not because the details were not available until recently after the staffs met with the CCC staff a few weeks ago.
Is Schultz saying that the staffs met with the CCC staff, it requested the city to update its market research for reclaimed water, the staff went ahead and did it—without informing the Council? It seems so, at least in public.
If that is the correct scenario, could that be a violation of the Brown Act (Govt. Code §§ 54950-54960.5), which requires public business to be discussed in public, unless it is noticed for closed session under certain conditions—this obviously not being one of them.
Do provisions of the Brown Act obligate the City Council and CSD board to approve such a survey in public before it is sent out in order to enable residents to become aware of it and give them opportunities to comment beforehand? If not, is there any limit to the latitude that the two bodies can bestow on the staffs to act in their behalf without informing the pubic?
Section54950 of the Brown Act states:
In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions betaken openly and that their deliberations be conducted openly.The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.
By giving the staffs such broad powers at some point in the distant past to act privately without public—community—knowledge, if not oversight, were these sections of the Brown Act violated, at least in spirit, by distributing the survey without providing residents a prior opportunity to even become aware, much less comment, given its very controversial contents and enormous importance to Morro Bay's future supply of quality, affordable water?