Dear Directors,
I have been thinking about how the Agency staff seemed to focus on the water right of 15,000 af, rather than the flow restriction of 30 cfs.
As you know, I believe a realistic estimate of water
available for treatment at Tanner is less than 12,500 af. I believe the actual amount of water that
can be delivered is close to 10,000 af when golf course irrigation (until there
is a real recycling plan and not just speculation), filter cleaning back flow,
system leakage, and deliveries along the canal are considered (one of several
flaws in the WSAs is that these issues were not considered).
However, I got to thinking that maybe the Agency staff
thinks it is sufficient to comply with SB 610 by simplying showing that the
Agency has sufficient water rights for all of the projected development. That would
explain why the staff mostly ignored the flow restriction and focused their
responses to the various comment letters on the supposed adequacy of the 15,000
af water right.
Therefore I prepared the attached letter. After spending all of Saturday afternoon and
evening carefully reading the relevant codes, I think the Agency has some
serious problems with its planning process.
Section 10910(d) is what specifies the contents of a WSA,
and it clearly mentions "delivery".
But 10911(a) is about when the WSA cannot identify sufficient supplies. 10911 does not mention "delivery",
but it does mention "develop".
Because 10911 does not mention "delivery", it
seems to me that Agency staff may want to cite the 15,000 af right as an
additional source of water. I think
that cannot be done because the 15,000 af right, and all other rights, are
existing now, and therefore had to be considered in 10910(d). It seems dubious to me to say, on one hand,
"well, our existing water rights are insufficient to produce enough
supplies because we have no specific plans for how we would actually deliver the
water" and then, on the other hand, say "but we have additional supplies
because we have not used up all our water rights (which we have no plans to
deliver)".
The analysis has the complete text of SB 610 attached so you
can make up your own minds if my interpretation is correct.
On another subject, I apologize if my previous email message
sounded too harsh. I admit to being annoyed
at spending so much time explaining what seems to me to be common sense. All the Agency has to do is make and approve
some definite plans for storage, or recycling, and then a WSA can be prepared
that does conform to SB 610. But I really
do not think the fault lies with the Board members and therefore I apologize
for implying fault.
I am a bit confused why proper plans have not been
made. WC 10631(h) describes the contents
of theUrban Water Mangement Plan ( UWMP), and that seems to include the same
kind of projects that must be described in the WSAs in order to utilize the full
15,000 af AWS water right. Maybe it is just the timing (the current UWMP was
prepared in 2005 and the next one is due in 2010), but it seems that if the
UWMP had described all it was supposed to, the WSAs for the two subdivisions would
have been easy to prepare.
That gets back to another point. You do yourselves and the Agency no favor by evading the problems
in closed session. (You have a closed session
item about potential litigation on your agenda, which I think must be about the
inadequacy of the WSAs. If the Agency
has done something else that may cause it to be sued, you would be literally evading
the WSA problem, and I think you understand that is not going to work.) So I believe you want to talk about the
obvious and irreparable defects in the WSAs under the guise that you are discussing
potential litigation.
If that is the case, you cannot discuss the fact that the
UWMP is also inadequate, and you cannot discuss how to prepare adequate WSAs or
an adequate UWMP. All you can do is try
to figure out whether the developers or the land use agencies will sue the
Agency for the self-contradictory WSAs your staff already prepared.
I have not been able to figure that out for certain, but I
do not think the Agency will be sued. I
know the developer cannot sue because both projects require General Plan
amendments and therefore the developers had no right to expect approval in the
first place. If the land use agencies
turn them down for any reason, including the inability to provide water, the developers
have no recourse. I believe you
understand that it is the land use agencies that are responsible for the WSAs
being accurate, and if the WSAs are not accurate, then it will be the land use
agencies that are sued for unlawfully approving the projects, not the Agency.
The land use agencies may have some claim against the
Agency, but that is not clear to me.
Maybe the developer can sue the land use agency for the cost of
preparing the WSA that subsequently turned out to be wrong, but there is no law
I am aware of that requires the Agency to produce a perfect WSA for the land use
agency. As I keep repeating, it is the
land use agency that is responsible for the WSA, and if they eventually get
them right, in spite of the mistakes in the initial version prepared by the
Agency, I do not see what recourse the developer has.
The land use agencies did not (or should not have) incurred
any costs for the WSAs because those costs are supposed to be charged to the developer. There is no law against making
mistakes. The laws that result in suits
have to do with the final result being wrong.
The developer would have to show that there was a deliberate attempt to make
them pay more than necessary in order to sue anybody for excessive costs. Also, it is not that the WSAs are wholly inadequate-
it is just that they come to the wrong conclusion because they did not consider
delivery. How would the developer
determine how much of the cost was associated with that mistake? What if the land use agencies deny the
projects because of the traffic impacts?
The
developer knew our roads were too congested when they
applied, so there will be no suits over that.
In my opinion, the Agency will have the best chance of
avoiding any monetary costs by fixing the WSAs as soon as possible. Doing that is as simple as explaining to the
land use agencies why there is insufficient water to supply the project.
It really should not matter to the Board whether the Agency
will be sued because there is nothing that can be done about it now. If you are sued, don't you think it will
look better to the court if the
Board took action to correct the mistakes as soon as it was
made aware? I think it will look much
worse if the record shows the Board tried to cover up the errors and thereby
caused further delays and
costs.
You are going to have to start talking about the UWMP plan
in the open, in front of your constituents, pretty soon anyway. All of the same issues will come up. If you consider the WSA problems in open session,
you can also discuss how they relate to the UWMP and get a leg up on that
work. There is no potential litigation
about anything but the two specific WSAs, and it is only the potential for
litigation that you can discuss in closed session.
I am looking forward to talking to the Board when you are ready
to deal with the public's business as if there were nothing to hide. Oops. I'm sorry to make that point sarcastically,
but just what is it that you do not want your constituents to know? I think speculation about secrecy is worse
than publicly airing the issues, particularly when they have been presented to
you in an open manner.
Ken Berry
209-223-1769