Anderson’s Conflict of Interest on the Regional Water Board

Hi everyone:

For many months I have been receiving information from Alan Levine about the serious conflict of interest issue with Regional Board appointees. The law clearly states that appointees should not receive more than 10% of their income from NPDES permit holders either directly or indirectly. About six appointees have lost their seats in the last two years because of having such conflicts. The most recent was Bev Wasson, who had served for over six years and had been Board Chair for one. It is a shame she lost her seat but we believe the rule is a fair and important one and should be enforced equally and consistently.

Unfortunately some State officials are trying to justify leaving Bob Anderson, lobbyist for United Winegrowers, in his recently appointed position (but not yet confirmed) as Regional Board member. Alan recently circulated many of the activities of United Winegrowers and it clearly indicates their bias in favor of permit holders such as the large vineyards and wineries. He has provided a great deal of information to justify opposition to this appointment.

My group, Russian River Watershed Protection Committee, and myself, and have thought long and hard about taking a public position in this matter. We have decided that it is important to do so. I attach here out letter to State Officials. We urge you to write your own letters, either as individuals, or as groups. You are welcome to use our letter as a template, if you wish, but please use your own letterhead. Or you can simply write that you support our letter, which was mailed two days ago (Five names and addresses appear in the letter). I believe that confirmation occurs sometime in August, so it is important to get something in within the next two weeks or so.

Please feel free to respond to me with questions and/or comments.

Brenda

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US Supreme Court Rapanos (800kb pdf document)

Anderson’s Appointment to the Regional Water Board

This battle continues:

In a message dated 6/23/2006 8:36:16 AM Pacific Standard Time, alevine@mcn.org writes:

Below and Attached is a letter regarding the appointment of Bob Anderson to the Regional Board and related issues of conflict of interest arising out of Mr. Anderson’s employment – with Cc:’s

Read the letter and think about how Mr. Anderson’s appointment may effect pollution control programs in Region 1 – the North Coast. Then take appropriate action.

——————— Letter

June 20 , 2006

Daniel Maguire
Deputy Legal Affairs Secretary
Office of the Governor
Sacramento CA, 95814

Re: Bob Anderson’s Eligibility to Serve on the North Coast Regional Water Quality Control Board

Dear Mr Maguire,

Thank you for responding to our concerns on this matter. However, we disagree with your findings on issues related to conflicts in the case of Mr. Anderson.

Your arguments about why Mr. Anderson is eligible to serve on the RWQCB are not persuasive. You say (page 1, paragraph 3) “…it is unlikely that Mr. Anderson’s employment will result in a conflict of interest in a significant number of matters.” In your discussion, inclusive of the admission that Mr. Anderson’s income (salary) is passed through a trade association, United Winegrowers, and where the membership of this association includes many NPDES permit holders that have significant concerns related to the implementation of water pollution control programs; you fail to explain why a conflict unlikely.

In the next paragraph (Factual Background) you admit that Mr. Anderson works for United Winegrowers, and that more than ten percent of the association’s dues come from growers subject to NPDES permits. Then later in the document (Trade Association’s and Discussion pp. 5-6) you find that due to the fact that United Winegrowers holds no permit and that Mr. Anderson is not a Board member of the association, nor does he have ownership interest, that the 10% rule does not apply. Do you really mean to say that if one NPDES permit holder employees an agent, that agent will have a conflict of interest, but if a number of NPDES permit holders join together and hire and agent, the conflict magically disappears?

You say (page 2, paragraph 2) “United Winegrowers board of directors sets his salary.” What criteria does the board use in setting the salary? Might it possibly be his effectiveness in protecting Sonoma wine growers’ interests? Might these interests not conflict with protecting overall water quality?

1APPLICABLE LAW

You identify as applicable law 33 U.S.C. 1314 (Section 304 of the Clean Water Act). According to you this statute says, “no board approving NPDES permit applications shall include as a member a person who receives…a significant portion of his or her income directly on indirectly from permit holders or applicants.” Mr. Anderson does receive a significant portion of his income directly on indirectly from permit holders.

There is other applicable law. California law is clear and simple. In pertinent part:

1) Cal Wat Code § 13388
§13388. Notwithstanding any other provision of this division or Section 175, no person shall be a member of the state board or a regional board if he receives or has received during the previous two years a significant portion of his income directly or indirectly from any person subject to waste discharge requirements or applicants for waste discharge requirements pursuant to this chapter.

2) Cal Wat Code § 132207
§ 13207. Member’s personal interest precluding participation in board action; Judicial proceedings for removal from office after violation

(a) No member of a regional board shall participate in any board action pursuant to Article 4 (commencing with Section 13260) of Chapter 4, or Article 1 (commencing with Section 13300) of Chapter 5, of this division which involves himself or herself or any waste discharger with which he or she is connected as a director, officer or employee, or in which he or she has a financial interest in the decision within the meaning of Section 87103 of the Government Code.
(b) No board member shall participate in any proceeding before any regional board or the state board as a consultant or in any other capacity on behalf of any waste discharger.

3) Cal Gov Code § 87103 (2003)

§ 87103. Financial interest

A public official has a financial interest in a decision within the meaning of Section 87100 if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official, a member of his or her immediate family, or on any of the following:

(a) Any business entity in which the public official has a direct or indirect investment worth two thousand dollars ($ 2,000) or more.

(b) Any real property in which the public official has a direct or indirect interest worth two thousand dollars ($ 2,000) or more.

INCOME

As you point out the meaning of “indirect” is not carefully spelled out, but whatever way you want to slice it, numerous NPDES permit holders added together paying their own private organization to pay Mr. Anderson, looks like indirect income to the unbiased eye. As you pointed out in your footnote, it also looks like indirect income in the eyes of the Legislative Council where they found that “employment income from a trade association whose members were permittees does count as income from a permittee”.

According to California Government Code, salary is income.

§ 82030. “Income”

(a) “Income” means, except as provided in subdivision (b), a payment received, including but not limited to any salary, wage, advance, dividend, interest, rent, proceeds from any sale, gift, including any gift of food or beverage, loan, forgiveness or payment of indebtedness received by the filer, reimbursement for expenses, per diem, or contribution to an insurance or pension program paid by any person other than an employer, and including any community property interest in the income of a spouse…
Cal Gov Code § 82030 (2006) in pertinent part [emphasis added].

You say the USEPA’s general counsel drew a distinction between salaried employees versus persons with an ownership interest. This is less to the point that what the USEPA had to say about the Clean Water Act/Porter Cologne Act 10-percent Rule for NPDES Conflicts:

USEPA guidance in February 14, 1973 addressed numerous issues related to the conflicts rule:
Memorandum from John R Quarles, Jr (USEPA General Counsel) to All Regional Counsels re Conflict of interest Provisions:
“It may be argued that such persons should not be disqualified if they have no connection with the management or operation of discharging facilities or budgetary decision-making that would affect such management. The conflict provisions makes no such distinction, however, nor can such a distinction reasonably be implied.”

The USEPA counsel have maintained that the Clean Water Act’s conflicts provisions are intentionally broad and cite the following excerpt from the Clean Water Act’s legislative history:
“Indeed, the only legislative history discussing this provision evidences the intent for broad application of this provision. In statements made during a House debate on the conference bill, Congressman Dingell stated that the intent of the conflict of interest provisions was to:
‘…wipe out industry representation on any water pollution control board or similar body that has anything to do with issuing, denying or conditioning permits…Even one such representative shall not be allowed because of the potential that the board will consider permits of which he has an interest.’” 1 Leg. Hist. 251

Applying the above principles, the income Mr. Anderson receives from United Winegrowers disqualifies him from sitting on the North Coast RWQCB.

CONFLICTS OF INTEREST

There is no denying the existence of conflict. Mr. Anderson is the agent of permit holders. He is employed to, and acts to, protect their interests. He sits on the regional water board to protect winegrowers’ interests.

There is no explanation, from your office, regarding how it is possible for a person, in the position of Mr. Anderson, to fulfill his obligation to protect the interests of United Winegrowers, and its members, and at the same time protect the interests of the citizens of the State of California and California’s Water Code and clean water programs.

You have stated, as a Board Member and considering his employment with United Windegrowers, Mr. Anderson must be sensitive to potential conflicts and recuse himself from deliberations in certain circumstances.

Mr. Anderson will find himself considering Waste Discharge Reports, Conditional Waivers from Waste Discharge Reporting, NPDES Permits for entities, Enforcement Actions, Cleanup and Abatement Orders, and Basin Plan Amendments. All of the aforementioned actions can, and will, have affects the operations of members of United Winegrowers. We would like disclosure (as a policy statement) on just what type of actions and deliberations that would require recusal on the part of Mr. Anderson.

Sincerely,

For Coast Action Group

Cc: Governor Arnold Schwarzenegger
Att: Appointments Secretary
State Capitol
Sacramento, CA 95814

Senate Natural Resources and Water Committee
Att. William Craven
State Capitol, Room 407
Sacramento, CA 95814

Office of Chief Counsel
State Water Resources Control Board
P.O. Box 100
Sacramento, CA 95812

Attorney General’s Office
California Department of Justice
Attn: Public Inquiry Unit
P.O. Box 944255
Sacramento, CA 94244-2550

Alan Levine
Coast Action Group
P.O. Box 215
Point Arena, CA 95468

Phone: Week Days 707 542-4408
Weekends 707 882-2484

Clarification on Rapanos’ Supreme Court Decision

If you’ve not yet heard the Supreme Court decided Rapanos and Carabell, the opinion written by Scalia is one of the worst environmental decisions ever. It eliminates protection for 80% of all wetlands, most class 2 and all ephemeral streams. It reverses all the gains made over the past 20 years in protecting waters of the US from development and pollution. It was a 4-1-4 decision.

Scalia restricts waters of the US to those waters that always contain running water and wetlands that are contiguous with those waters and connected by surface flow only. A hydrological connection is insufficient to create adjacency. Scalia recognizes that these sources may be point sources. But then that shifts the burden to the plaintiff to prove that pollution is reaching the US water from these sources. A nearly impossible task in most cases.

Justice Kennedy voted to remand the cases for further fact finding under the Bayview standard to see if there exists a significant nexus between adjacent non-surface connected waterways. Arguable if there exists a significant nexus (which is yet to be defined clearly). An adjacent waterbody with only a hydrological connection would be considered a water of the US by Kennedy and thus the court would vote 5-4 in favor of such a decision.

Jack Silver

Water Capacity Charges for New Development

Dear Council and Staff:

First, I wish to congratulate you on your decision to address water supply for our new General Plan buildout through the use of dramatically increased water conservation and efficiency, and through the extensive use of recycled treated wastewater for irrigation to replace existing potable water demands. We greatly appreciate these efforts.

The benefits of this approach to the our ratepayers, to the Russian River and Eel River watersheds as well as to the overdrafted groundwater basins of Sonoma County, are immense and cannot be overstated. This is a substantial step forward towards accomplishing the State Water Resources Control Board’s Feb. 2, 2005 mandate to SCWA to “provide…a detailed plan of water conservation efforts that will offset future increases in demand, which in turn will result in no increase in Russian River diversions.”

As you go through the details on the proposed revisions to the increased water capacity charges for new development, and the increased demands for potable water created by this new and continued development, several issues arise.

In their Council meeting considerations of these changes to water capacity charges for new development, a number of Councilmembers and public speakers emphasized that the beneficiaries of this new water supply, ie, new development, should pay the entire costs of the “new” potable water supply made available to them for this growth, and that existing ratepayers should not be charged for the costs of providing this potable water.

The staff report states, “The water supply program… is designed to provide facilities to serve new customers. The total cost of the program in 2006 dollars through buildout of the General Plan is estimated at $55 million.” “Capacity charges recover costs for future projects that must be constructed to serve new growth, as well as the costs of capacity in existing facilities that will benefit and serve new customers.” (pg 3)

The Bartle Wells report (Attachment A) states that “The calculation is based on a buy-in of existing facilities, a proportionate share of projected future capital improvements, and the costs to suuport new water supply projects.”

The proposed Council Resolution notes in #2 and #3 that automatic inflationary adjustments to the costs of construction are included in the revised water capacity charges, and that significant changes to capital project costs, land use projections and or program costs would be accounted for by rate adjustments as needed.

I very much appreciate the efforts and direction to address changes in capital costs, and maintain the burden of those costs on the new development, as previously stated.

However, several other components of water system costs to provide supply for new development are also required in your adjustment of charges and considerations of existing ratepayers.

1. Any costs related to new, increased capacity to our Wastewater Treatment Plant attributable to this new development (particularly increased solids, BOD, and tertiary treatment capabilities) should be borne proportionately by the beneficiaries, ie, new development.

2. All O&M as well as program costs attributable to the infrastructure necessary to accommodate the new growth’s water supply should be likewise borne by the beneficiaries over their useful lifespan. This would include O&M for the new recycled water distribution system expansion.

3. A proportional share of the costs attributable to changed regulatory settings, fines, cost overruns, etc., in capital and O&M costs should likewise be shouldered by the beneficiaries of the new development.

4. The existing ratepayers should not assume any of the risks and associated costs attributable to the implementation of this program over its lifespan. The principle set by our General Plan, and confirmed by the Council, ie, “new development shall pay for itself”, must apply here.

5. Oversight of these costs, including independent audit, must be available to the ratepayers and public over the lifespan of the project, with a mechanism for adjustment of charges clearly established, to ensure achievement of the ratepayer protection objectives.

As we saw very importantly during the protracted development, evaluation and ultimate rejection by the PUC and later by the City of the contracts and MOU for a privatized wastewater treatment plant, the details of this Revised Water Capacity Charges must be sufficient and clear to protect the existing ratepayers from added risks.

Please let me know how the City expects to do this as it comes up with its final format for the Revised Water Capacity Charges. I hope that with full clarification of these issues and risks, the general public and ratepayers will provide very strong support for this program.

Thank you very much for your clarity and leadership as the City moves forward with this important work.

David Keller

High court splits over protecting wetlands

The Clean Water Act might not prevent building on them.

By Warren Richey
Staff writer of The Christian Science Monitor

WASHINGTON – The federal government does not have the power to reach far upstream to protect every ditch and wetland in a watershed.

In a ruling restricting federal authority to protect the environment, the US Supreme Court on Monday said the reach of federal regulators under the Clean Water Act is limited. But the high court’s nine justices were unable to reach majority agreement about how and where to draw those limits.

Continue reading “High court splits over protecting wetlands”

Supreme Court Delivers a Muddy Decision on Clean Water Act Jurisdiction

June 20, 2006

FOR IMMEDIATE RELEASE

Contact: Melinda Kassen, 303-579-5453
Steve Moyer, 703-284-9406

Supreme Court Delivers a Muddy Decision on Clean Water Act Jurisdiction

Arlington, Va. – Yesterday the U.S. Supreme Court rendered a confusing decision that may expose thousands of miles of streams to harmful activities. The Court reversed a lower court ruling that was supported by most states, conservationists and the Bush Administration.

“The Supreme Court did not change the law, did not provide any clear guidance and did not resolve any issues,” said Melinda Kassen, Director of Trout Unlimited’s (TU) Western Water Project. “The only certainty is that this will be back to the Court unless Congress acts.”

The Supreme Court considered the level of protection afforded to streams and wetlands under the Clean Water Act. The Court addressed two Michigan cases, Carabell v. United States and United States v. Rapanos, both of which involved developers wanting to fill in wetlands adjacent to small tributaries that flow into larger water bodies.

Four justices issued a plurality opinion that would significantly narrow the scope of the Clean Water Act to protect only permanently flowing lakes, rivers and streams, and wetlands with continual surface flows. Four other Justices dissented and voted to uphold the Appeals Court decision, which was based on a broad, protective regulation that the federal government has used for 30 years.

Justice Kennedy wrote separately. He disagreed with most of the plurality’s key points, but still voted to return the case to the lower court. Kennedy argued that the Clean Water Act protects all wetlands and smaller streams with a “significant nexus” to larger, navigable rivers. Justice Kennedy voted to return the case to the Court of Appeals to consider whether a “significant nexus” existed. Thus, a 5 Justice majority voted to send the case back, and that will now happen.

“The very goals of the Clean Water Act, to maintain and restore the chemical, physical and biological integrity of the Nation’s waters, require broad protection under the law for the nations streams, rivers, lakes and wetlands,” said Kassen. “The plurality decision indicates a fundamental misunderstanding of the importance of small streams and wetlands, especially in the drier parts of the country.”

The plurality interpretation, if adopted by federal agencies and lower courts, could result in an alarming degradation of water quality and fish habitat. In Colorado, for example, only 28,000 of the state’s 107,000 miles of streams are perennial, meaning that the vast majority don’t contain water all year around and could be dropped from Clean Water Act protection.

Steve Moyer, the Vice President of Government Affairs for TU, urged Congress to “step into the breach and pass an amendment to the Clean Water Act that resolves this issue to provide the broadest possible coverage and protection for the nation’s waters.”

Ruling Favors Rivers Over Power Dams

The Supreme Court says states may protect the waterways by requiring a steady flow at hydroelectric plants, which tend to harness it.

By David G. Savage, Times Staff Writer
May 16, 2006

WASHINGTON — The Supreme Court sided with the environment over electric power Monday, ruling that state regulators may require a steady flow of water over power dams to benefit fish and kayakers.

The unanimous decision holds that states may protect the health of their rivers, even though hydroelectric dams are regulated exclusively by the federal government.

The dispute arose over five small dams on the Presumpscot River in Maine, but the court’s decision affects an estimated 1,500 power dams in 45 states. They include scores of dams on the Sacramento, Klamath and San Joaquin rivers in California.

Separately, the court agreed to take up an appeal from environmentalists who are seeking to enforce stricter clean-air rules against aging coal power plants. The justices said they would hear the clean-air case in the fall.

The ruling on rivers and dams resolved a clear conflict in the law. The Federal Power Act says hydro-power dams are to be regulated by federal authorities with the aim of producing electricity. But the Clean Water Act says those who “discharge” anything into a state’s navigable waters must obtain a permit from the state.

Until recently, state officials believed they were entitled to protect their rivers by regulating the flow of water over and through dams.

But last year, the privately owned SD Warren Co., which produces hydroelectric power in Maine, won the Supreme Court’s review of its argument that water flowing in and out of a dam is not a discharge.

Had the company prevailed, states would have lost their legal authority to protect their rivers and ensure a steady flow of water. Not surprisingly, officials of the power plants said that during dry seasons, they were more interested in holding back water so they could be assured of a steady flow over their generators to maintain power production.

In its opinion, the Supreme Court looked to the dictionary to decide the meaning of the word “discharge.”

“When it applies to water, ‘discharge’ commonly means a ‘flowing or issuing out,’ ” said Justice David H. Souter, citing Webster’s New International Dictionary. Other judges and regulators have agreed with “our understanding of the everyday sense of term,” he added.

Therefore, since water flowing over a dam is discharged back into the river, a state may regulate the operation of the dam, the court concluded in SD Warren Co. vs. Maine.

“This is a victory for rivers, for clean water and most of all for good common sense,” said Rebecca Wodder, president of the environmental group American Rivers.

But environmentalists are anxiously watching two other Clean Water Act cases that are pending before the Supreme Court. Both from Michigan, they will determine whether federal regulators can continue to protect inland wetlands and small streams from development or pollution.

Private-property activists say the Clean Water Act protects only rivers and lakes where boats can float, not wetlands that are far inland. Decisions in those cases are due by late June.

Bush administration lawyers joined all three Clean Water Act cases on the side of the environmentalists.

The clean-air case to be heard in the fall, however, concerns a move by the Bush administration to relax a strict anti-pollution rule set by the Clinton administration.

Under that rule, aging power plants that expanded or modified their facilities were required to adopt modern anti-pollution controls in the process. This issue has drawn much attention in the states of the Northeast, including New York, which are downwind of coal-powered plants in Ohio and West Virginia.

The Duke Energy Corp. in North Carolina challenged the Clinton-era rules and won a ruling from the U.S. 4th Circuit Court of Appeals concluding that the Environmental Protection Agency had exceeded its authority in requiring such modifications.

In a separate lawsuit, several Northeastern states are challenging the Bush administration’s move to relax the same rules.

Taking up the cause of clean-air advocates, lawyers for the nonprofit group Environmental Defense appealed to the high court. They argued it was the 4th Circuit Court that exceeded its authority.

The ruling will have a broad impact, environmentalists say.

“Over 160 million Americans, more than half of the country, live in communities out of compliance with the nation’s health standards, and today the Supreme Court took a big step toward aiding those communities in their efforts to restore healthy air,” Vickie Patton, an Environmental Defense lawyer, said on Monday

Court Upholds Subterranean Flows is a Part of Gualala River

The Court denied NGWC contention that the State Water Board did not have authority over subterranean flows that are part of the Gualala River Flow regime.

This is an important case as it asserts the Water Boards authority to assert justification to maintain minimum by-pass flows to protect Beneficial Uses of Water.

Now the State Water Resources Control Board – Division of Water Rights needs to assert their authority and mandate to protect beneficial uses on our Impaired Water Bodies (rivers) by ensuring adherence to permit conditions and limiting wasteful uses of water.

The case is North Gualala Water Co. vs. State Water Res. Control Bd., No A109438 (Cal. 1st App. Dist. May 31, 2006).  Denial of petitions challenging defendant board’s jurisdiction to compel plaintiff to obtain a permit to pump groundwater from two wells located near the North Fork Gualala River, as well as defendant’s interpretation of pumping limitations placed on the permit, is affirmed over claims that defendant: 1) misconstrued the statutory phrase, “subterranean streams flowing through known and definite channels,” in Water Code section 1200; and 2) placed unwarranted conditions on plaintiff’s permit.

For more information, contact Alan Levine, Coast Action Group, P.O. Box 215, Point Arena, CA 95468

Use Permit Limiting Extraction of Groundwater Was Not a Taking

A conditional use permit limiting a landowner’s right to use groundwater underlying his property was not a compensable taking. Allegretti & Company v. Imperial County, Case No. D045156 (April 26, 2006).

Imperial County issued a conditional use permit allowing Allegretti to re-drill an inactive well on a 2,400-acre parcel subject to the condition that total groundwater extraction on the property be limited to 12,000 acre-feet per year. Allegretti claimed the condition constituted both a physical and regulatory taking of his property. The Fourth District Court of Appeal ruled that the county’s actions did not effect a physical taking because the actions lacked the hallmarks of an actual physical occupation or invasion of the land, in that the county did not appropriate, impound or divert any water.

The court also found no regulatory taking because the permit condition did not deny Allegretti all economically viable use of his property, nor did it meet the Penn Central takings analysis: the condition did not unreasonably impair the value or use of the property or invade or appropriate any of Allegretti’s property; and there was no interference with reasonable investment-backed expectations, as Allegretti’s water right was already restricted by the California Constitution to the amounts needed for the landowner’s reasonable beneficial use.

For further information concerning the Allegretti decision, please contact the following attorneys: Geoff Robinson ( geoffrey.robinson [AT] bingham.com ) 925-975-5335 Derek van Hoften ( derek.vanhoften [AT] bingham.com ) 925.975.5341

Judge Rules RP Water Study is Flawed

Judge Owen of Sonoma Superior Court tentatively ruled May 30 in favor of the OWL Foundation of Penngrove that says Rohnert Park doesn’t have enough water for 3,600 new homes planned on the city’s eastern edge and other proposed growth. Almost half of those homes already have City Council approval, based in part on a $344,000 water supply study.

When the council approved the 1,645-unit University District this month, city officials said it would be served by the system of 42 municipal wells and the Sonoma County Water Agency’s Russian River aqueduct. Rohnert Park had agreed to curtail its ground water pumping in 2002 after neighboring Penngrove residents sued over concerns that the city’s practices were causing their wells to run dry. However, the council approved a 1,645-home development this month, Rohnert Park’s largest in a decade. A separate plan for 2,000 homes was also recently unveiled. Rohnert Park has plans to annex more than 800 acres and build up to 4,000 homes over the next 20 years.

Continue reading “Judge Rules RP Water Study is Flawed”