One of the critical questions that has arisen in the battle over water rates are what are the alternatives, if the city is not able to go forward with the water project due to a rate revolt. Advocates of delaying the water project argue that the city may be able to appeal new discharge standards in order to delay the project.
On June 30, Mr. Landau walked the Woodland-Davis Clean Water Agency through the new law dealing with mandatory minimum penalties.
“If you have a violation that qualifies for a mandatory penalty, it’s $3,000 a violation,” he said. “The only discretion the Regional Board has is making a factual determination as to whether you violated it, and whether that violation fits the statute. If it does, we assess you the $3,000 per violation.”
He added, “That could go on, that could be anywhere from a few times a year to tens of thousands of dollars a month depending upon the number of violations. And, it’s not once per month, it’s once per violation, so if you’ve got 30 different chemical violations during the month, it’s 30 times $3,000 for that month.”
“A change in the law that went into effect in January of this year is, if you have used up your first five years of mandatory minimum protection, if we can make findings that you have a project, you have been diligent during that first five years in trying to achieve compliance, and a number of other things that go along with that, then we can, at the Regional Board’s discretion, grant you up to an additional five years,” Mr. Landau told the JPA.
Critically, Mr. Landau expressed that these were just minimum fines of $3000 per violation.
“And, in comments of another part that fits in with this from the opening statement about, ‘Gee, it may be cheaper to pay the mandatory minimum penalties’…the mandatory minimum penalties are just that. They are mandatory, but they are minimum,” he stated.
Mr. Landau continued, “If a community is not moving forward with a project, even if we gave them protection initially, we can do discretionary fines, and for this type discharge it’s $10,000 a day, plus $10 a gallon for every gallon discharged, so if you have a 10 million gallon per day discharge, that’s potentially a fine of around $100 million per day. We don’t usually collect $100 million a day fines against a community, but we have a lot of wiggle room.”
Davis City Councilmember Stephen Souza asked Mr. Landau if they had ever collected on these “discretionary fines.”
Mr. Landau responded, yes.
Stephen Souza added, “That would be helpful because, Mr. Landau, I have been told by certain members of our community that, ‘Oh, nobody’s ever paid it.’ So, I would like to know how much certain communities have been fined and what has been collected. That would be very helpful information for me.”
Later Mr. Landau said, “We actually have not set specific effluent limits for Davis and Woodland. There are studies in progress on those.”
These are apparently based on levels good enough for various crop units.
He would add, “But, we’re probably looking at numbers, at best, in the 1,000-1,200 range, probably. And, Woodland is like 1,700- 1,800. Davis is like, depends on the time of year, it’s lower right now because it rained like crazy, but I think our interim limit is like 2,300, or something like that. So, it’s likely that, again we don’t have a limit, but we will relax away from our default.”
He said plainly, “I cannot picture us being anywhere near the salinity levels that are currently coming out of your wastewater treatment plants.”
Mayor Joe Krovoza asked, “And the water supply project is our way of meeting those requirements?”
Mr. Landau responded, “That is the way Davis and Woodland selected to meet those requirements.”
Mr. Landau also addressed the issue of Tracy and the Delta Standard, “What you’re talking about does not apply to the City of Davis,” he told Mayor Krovoza.
“They have set, within that, standards in [the] southern part of the Delta, down near the Tracy area [are] some salinity standards, and those we used when we adopted the NPDES [National Pollutant Discharge Elimination System] permits for Tracy, and Stockton, and Manteca, and Mountain House, and communities down there where geographically those standards apply,” he said.
He added, “Superior Court ruled recently that when the State Water Board adopted those standards, they did not comply fully with a part of the water code that applies to adopting standards. And the specific thing was an economic analysis. So, his ruling first off only applies to those standards down there, not the ones up here.”
“The specifics of why we can’t apply the same standards [as] down in the Delta, that’s a legal issue on the adoption of those standards. Those standards don’t apply to Davis to start with, where you would be using the same science for setting the numbers,” he continued.
A couple of more points that Mr. Landau made are worth noting.
The major impact here is on agriculture, “There are two issues we’re dealing with in Davis and Woodland. One is the immediate impacts on the waters you’re discharging into. For salt, given that there’s no drinking water intakes out there, the thing that’s going to be impacts [sic] on is really irrigated agriculture. Selenium is another one, we’ve got copper and zinc for fish and other things. But, for salinity, the immediate impacts we’re worried about is the impacts on irrigated agriculture.”
He added, “If Davis and Woodland discharge high salinity, that increases the salinity concentrations in the Delta, and literally to offset that and still meet standards, fresh water has to be dumped from upstream reservoirs. And, that’s the same water in some cases you actually would like to divert, so the saltier your water is going out there, the less water is available for you and everybody else, because that water has to be used for flushing and diluting salt in the Delta.”
He continued, “The most critical thing that affects you is the local impacts on irrigated agriculture. We’re also concerned about the Delta, and there are actually Delta standards that you impact.”
Also, the state can take water rights back if a community is not pursuing its use of water rights.
He said, “The State of California doesn’t have enough water to go around, and by law if a community is not diligently pursuing use of its water rights, the State Water Board can take those back.”
However, he acknowledged, “That’s something that doesn’t happen very often, and certainly for communities where it’s recognized that, in most cases you get a water right for growth over the next several decades, so it wouldn’t make sense to take the water right back if you don’t use the water right away because you don’t have a need for it yet, but you need it for long-term growth.”
If Mr. Landau’s statements before the JPA are to be believed, then Davis is well out of compliance with the salinity standards. The board can and will impose steep penalties if they are out of compliance after a five-year grace period. The city will not be allowed to pay less in fines than it would cost to fix the problem.
The exemptions that the City of Tracy got do not apply to Davis.
Finally, while the state can take back the water rights, it appears that is probably not a realistic concern, at least at this point.
Mr. Landau did say, “If the City, this group, the cities decide ‘let’s delay this for 10 years,’ I’m not part of that decision making process, but it wouldn’t surprise me at all if somebody went back to the State Board and said, ‘Excuse us, they’re not using the water. Can we have it?’ I don’t know the chances of the State Water Board actually doing that, you know, agreeing to that and taking it away. It does happen occasionally, usually under extreme circumstances. But again, looking at the risks that go along with delay, that would be one for you to think about.”
However, even with that caveat, it just does not appear likely that this part of the scare tactic would come to fruition. Especially if the city had the express desire to utilize its water rights in the foreseeable future, but could not do so at this time due to financial and economic considerations.
So again, if one believes Mr. Landau, and he certainly has an interest to paint the picture in favor of compliance, the city would appear unlikely to get an extension for compliance with the law in order to make the project more affordable.
That leaves open other questions, such as whether a deep water interim solution could forestall the need for the project long enough to buy the city time to avoid the draconian rate hikes that the city is looking at.
—David M. Greenwald reporting
It is nice when facts are provided like this to inform the discussion.
One thing to note is that it is not uncommon for dischargers to get an extension for various elements of permit compliance for reasonable requests. In my experience, these are granted if the permittee is demonstrating progress towards permit compliance, and just needs time for various issues. However, these extensions need to be granted by the RWQCB Board.
[i]whether a deep water interim solution could [b]forestal[/b]l the need for the project long enough to buy the city time to [b]avoid[/b] the draconian rate hikes[/i]
When you forestall something, you don’t avoid it. You just delay it. You pass the inevitable cost on to the next generation.
[quote]When you forestall something, you don’t avoid it. You just delay it. You pass the inevitable cost on to the next generation.[/quote]
Nicely said!
[i]”if you have a 10 million gallon per day discharge, that’s potentially a fine of around $100 million per day.”[/i]
I think it was Bill Kopper, who is a lawyer, who made this point in the Davis Enterprise: fines charged have to be more-less in line with the damages caused. Put another way: the WQCB does not have the authority under the United States Constitution to do what Mr. Landau says it will do.
This is what the 8th Amendment says: [quote]Excessive bail shall not be required, [b]nor excessive fines imposed[/b], nor cruel and unusual punishments inflicted. [/quote] The guiding case law comes from United States v. Bajakajian in 1998. Clarence Thomas wrote the majority opinion. In it, he noted, “Comparing the gravity of respondent’s crime with the $357,144 forfeiture the Government seeks,” Thomas wrote, “we conclude that such a forfeiture would be [b]grossly disproportional[/b] to the gravity of his offense. It is larger than the $5,000 fine imposed by the District Court by many orders of magnitude, and [b]it bears no articulable correlation to any injury suffered[/b] by the Government. … For the foregoing reasons, the full forfeiture of respondent’s currency would violate the Excessive Fines Clause.”
Since Bajakajian, lower courts have agreed that any fines imposed by governments must be proportional to any injury suffered. I am guessing Mr. Landau is not aware of the law in this regard.
David, I do wish you had talked with me for my take on this before you wrote this article. I have done a lot of background work on it, and talked with the relevant top staff members.
First of, Ken Landau is [b]NOT THE DIRECTOR OF THE WQCB[/b]. He is the Kenneth Assistant Executive Officer, Sacramento Office [b]of Surface water programs[/b]. That should tell you something right there.
More to come.
Thanks Sue for the clarification. You seem to have the best handle on the water situation, David needs your intake.
He is the Assistant Executive Officer of the Central Valley Regional Water Quality Control Board. He manages the National Pollutant Discharge Elimination System (NPDES) section for the Sacramento office of CVRWQ.
Sue: [i]That should tell you something right there.[/i]What on earth is that supposed to mean? I think the executive who manages the NPDES section would have at least some familiarity with the penalty process. Are you trying to suggest otherwise?
Ken Landau signed the Time Schedule Order for the City of Davis WWTP to comply with their wastewater discharge permit.
[url]http://www.swrcb.ca.gov/centralvalley/board_decisions/adopted_orders/yolo/r5-2010-0029-01.pdf[/url]
[b]Don Shor[/b]: When I googled “Ken Landau”, the following website came up: [url]http://www.swrcb.ca.gov/rwqcb5/about_us/board_members/[/url]
On this website Ken Landau is listed as: [b]Assistant Executive Officer, Sacramento Office of Surface water programs. [/b]If that website is dated, maybe you can find me a more updated title for Mr. Landau.
The Sacramento Bee’s “salary search” lists this ([url]http://www.sacbee.com/statepay/?name=landau&agency=&salarylevel=[/url]):
Kenneth D Landau, WATER RESOURCES CONTROL BOARD, PRINCIPAL WATER RESOURCE CONTROL ENGINEER, $114,703.19 2010 salary
And this is what a 19th Century Landau car looked like:
[img]http://www.yourcarriageawaits.co.uk/photos/landau5.jpg [/img]
[edit, off topic. If you have ideas for Vanguard topics, email them directly to David please.]
The citizens of Davis are now experiencing a “full court press”. Powerful people have lined up a lot of support to push this project through at this time. Personally, I think that the “powers that be” have not accurately assessed the financial infeasibility of doing this project at this time.
Mr. Landau does not make the decisions on whether we can get a variance. The Regional and the State Boards do.
Mr. Landau made a few major mistakes in his comments. For one, he consistently confused Davis with Woodland, and Woodland has more problems than Davis does. Davis is currently in compliance.
He also said that ag beneficial use criteria would not be affected by revision of the Delta salinity criteria. That opinion was contradicted by another administrator
When asked, Mr. Landau implied that we might have our water rights revoked if we merely postponed the project, although he did acknowledge that it would be very “rare” to do so. Another administrator that I talked with said that if we had a 40 year permit, it should be good for 40 years (of course, if we proclaimed that we were never going to do the water project, we might be able to set a new precedent, but of course that won’t happen because we are going to complete the project within the next 40 years, and will be able to do so because our wastewater treatment plant will be paid off).
The most important incorrect statement made by Mr., Landau is that we would categorically not qualify for a variance because we have proven that our surface water project is feasible by HAVING CHOSEN to meet our water quality objectives through the surface water project.
It is true that previous council majority during the last 8 years did us no favors by neglecting to acknowledge the feasibility problems presented by the growing costs of the combined wastewater/surface water project, and hence not directing our attorneys to negotiate with the board based on alternative solutions.
That said, Mr. Landau’s reasoning is tautological, and does not take into account the changing fiscal feasibility. Mr. Landau is not recognizing that fiscal feasibility does count. He is making his own personal prediction here on how the regional board will respond to our request for a variance.
However, another high-placed administrator suggested to me that we should pursue a variance if we need to postpone the project. He would not have said that if he thought there was no chance.
Sue: here is what the web site you linked says (emphasis added):
“Kenneth D. Landau
Assistant Executive Officer, Sacramento Office
Surface Water Programs
Ken Landau graduated from Cal Poly San Luis Obispo with a Bachelor of Science in Environmental Engineering, and from the College of the Deserts (Palm Desert) with an A.A. in Geology. Ken started with the Central Coast Regional Board as a student assistant, worked nine years with the Colorado River Basin Regional Board in Palm Desert, and transferred to the Central Valley Regional Board in Sacramento in 1985. Ken is a California Registered Civil Engineer. As Assistant Executive Officer, [b]manages the NPDES[/b], Agricultural, and Planning sections of the Sacramento Office.”
Again, I think he has reasonable familiarity with the penalty process, since NPDES stands for National Pollutant Discharge Elimination System. NPDES is the permit program that regulates water pollution discharge. He manages that section. So I think it is safe to assume that he is familiar with the technical and regulatory aspects, including the penalty process. It is, in fact, hard for me to think of anyone [i]better[/i] able to inform us about how the regulation of Davis water, and the regulations that affect them, would be handled.
[i]Another administrator that I talked with….another high-placed administrator suggested to me [/i]
When you cite unattributed, anonymous sources, we have no way to judge their relative merits.
How this discussion has taken a ludicrous turn. The following links to the Regional Water Quality Control Boards organizational chart. Ken is clearly qualified to have said what he has said. He oversees point source permitting, of which the Davis WWTP is a point source permitted under the NPDES program.
[url]http://www.waterboards.ca.gov/centralvalley/about_us/org_charts/sacramento_office.pdf[/url]
[quote]Another administrator that I talked with….another high-placed administrator suggested to me
When you cite unattributed, anonymous sources, we have no way to judge their relative merits.[/quote]
This is simply Sue’s defeated MO. These anonymous attributions are utterly worthless.
I’m sorry, guys, but I have talked with an administrator who outranks Ken who suggested working through the variance process if we felt the project was not feasible from a fiscal perspective. He was far too responsible to predict whether we would win or not, but he did say that fiscal feasibility can be taken into account.
No one said that we couldn’t be fined if we didn’t get a variance, so I don’t understand where this red herring comes from.
Why can’t you name this “administrator” that outranks Ken Landau? How could your conversation about this city project and water quality regulation be so secret that this source of yours requires anonymity? If you can’t answer these questions, then your information isn’t worth anything. There is nothing secret about the regulatory process and how it impacts this project, so anonymity must be cover for what?
At this point I hope you can back off from telling all of us that Ken Landau doesn’t have the credentials to advise the city on how his office views this project.
I am trying not to drag the names of professionals into a heated political debate unless they volunteer their names, for matters of courtesy.
I have the greatest respect for Sue Greenwald, but on this issue, I can’t agree. It seems to me that the arguments of Sue, Bob Dunning, David, and others on this blog fall into several categories:
1. Wishful Thinking:
The State would not really impose these fines
The Feds will pay for the project if we just wait long enough
We’ll be better able to afford it in the future
2. Scare tactics:
Businesses will close down
Landlords will not be able to rent their units due to water costs
The Covell Village people are behind this to promote their own interests
No one will vote for school bonds because of their water bills
3. Miscellaneous Arguments
River water is more polluted than well water (Dunning)
Water can be extracted from the air (Enterprise article)
We are rushing into this; it hasn’t been studied enough (my favorite)
Any one or all of these suggestions may be true, but do we want to bet the future of our water supply on them? Yes, the cost of water is going to go up; so did the cost of gas, and we have survived. It is going to be fine, and it is going to be worth it to have water you can actually drink.
I think we can summarize that Sue has decided that she is against the surface water project, and there is no expert or experts or set of facts that will change her mind, short of some sort of monetary intervention where the project is paid for by someone else.
Adam Smith: That is incorrect. If the top experts told me that they would recommend proceeding regardless of the cost, I would accept their judgments. That is not what I am hearing. What makes my job so difficult is that experts will often speak frankly, but are disinclined to jump into politically charged discussions, for various professional reasons.
I have consulted with experts that I trust implicitly –in every aspect of this project. You can believe me or not; it’s your choice. I just wish that you anonymous commenters on this blog would be brave enough to sign your names so that when the final bill comes in, you would have some accountability for your predictions and judgments.
I spoke with an engineer today whom I trust implicitly. That engineer thought that staff estimates are low, and guesstimated that our ultimate water/waste water/storm sewer bill will come to $300 to $350 dollars a month. That would come to between $3,600 and $4,200 a year. So in the upper end of the guesstistimates, our sewer/water/storm sewer garbage bills could come to as much as 10% of our before-tax average family income, or 20% of our before-tax per capita income.
If this comes to pass, it would put us in uncharted territory with far-reaching consequences.
I think we should get firm figures on the total cost of these projects before proceeding to do all of them simultaneously, and that we should pursue a variance and make the case to the regional board that the project is financially infeasible in order to retain flexibility at least until we determine the actual costs of the three major projects.
In order to assess the engineer’s speculation, we would have to know the basis for his guesstimate and why he thinks the staff numbers, which are based on fully documented engineering estimates, are wrong.
I think the deep aquifer option has many issues. First and foremost, the extent of the deep aquifer is not, so far as I can tell, known. The quality of that water is not equal to surface water. The university has violated discharge levels using deep aquifer water. The city of Davis would have to replace most, perhaps all, of the current wells with deep-aquifer wells. The city would be competing with the university for that water, and the effect of a significant increase in deep pumping on the shallower aquifers is unknown, both for contamination and possible subsidence. It is possibly unknowable. And as far as I can tell, everyone who advocates that option agrees that eventually we would have to go to the surface water anyway.
[b]Don Shor[/b]: In terms of the guesstimates about project cost — staff numbers are not based on the needed detailed engineering estimates, because these details have not been revealed. This is one of the very reasons that I think we need to slow this process down. We need to know how much this project will cost.
In terms of the deep aquifer: As I’ve mentioned many times, yes, we don’t know how much water is in the deep aquifer, or how long it will last. It could fail in ten years or in 100 years. It could be that, with natural and man made recharge, it could be sustainable. We just don’t know. That is why I have suggested that we put in place the means to complete the surface water project quickly. The aquifer will not fail overnight. If we run into serious problems, we will just have to spend what it takes, even if the fiscal consequences are catastrophic. But we are not there yet. It could well last until we have paid most of our waste water treatment plant, which could keep rates significantly lower, and hopefully carry us into better economic times. And we have already invested heavily in the foundations that will allow us to move quickly if we run into serious aquifer problems.
Sue
You and your anonymous sources ask for far too much trust. The fact that you trust your sources is irrelevant to me trusting you. David obtained his information in this article from a primary named source. You provide information from anonymous sources that may or may not exist, may or may not be experts, may or may not be in positions of actual influence, may or may not have political motivations, etcetera, etcetera.
Ken Landau is a principal representative of the regulatory agency that holds authority over the city’s wastewater discharge permit. He has made statements that delaying and accumulating penalties will not be tolerated, and he has made statements that the judgments that impact Tracy do not impact Davis. You keep calling this a red herring. It is not a red herring.
And I am an expert. Trust me.
[quote]What makes my job so difficult is that experts will often speak frankly, but are disinclined to jump into politically charged discussions, for various professional reasons.
I have consulted with experts that I trust implicitly –in every aspect of this project. You can believe me or not; it’s your choice. I just wish that you anonymous commenters on this blog would be brave enough to sign your names so that when the final bill comes in, you would have some accountability for your predictions and judgments.
I spoke with an engineer today whom I trust implicitly. That engineer thought that staff estimates are low, and guesstimated that our ultimate water/waste water/storm sewer bill will come to $300 to $350 dollars a month. That would come to between $3,600 and $4,200 a year. So in the upper end of the guesstistimates, our sewer/water/storm sewer garbage bills could come to as much as 10% of our before-tax average family income, or 20% of our before-tax per capita income.
If this comes to pass, it would put us in uncharted territory with far-reaching consequences.
[/quote]
1) If your experts are unwilling to go on record, and Ken Landau is, then who is more “trustworthy”?
2) It appears you only trust those who agree with your position, which has never changed from day one, which is that we should do the wastewater treatment plant first and foremost, pay it all off before doing the surface water project – which is in direct contradiction to the two UCD experts you insisted be brought on board to give an opinion.
3) I am not an anonymous commenter, I sign my name to every post. And I will consider myself fully accountable for any opinions I express.
4) You will trust an anonymous engineer who happens to agree with your position, over an actual representative from the SWQRCB who is willing to put his name to his opinion. Anonymous sources are meaningless…
[quote]Don Shor: In terms of the guesstimates about project cost — staff numbers are not based on the needed detailed engineering estimates, because these details have not been revealed. This is one of the very reasons that I think we need to slow this process down. We need to know how much this project will cost. [/quote]
How can we put the project out for bid unless we know whether citizens would be willing to pay for/City Council will be willing to approve water rate increases?
I would just remind everybody about how much information comes to light from unnamed sources. There is a reason for this. Careers are destroyed by speaking publicly against the establishment view, but careers are enhanced by speaking in favor of the establishment view.
Unnamed sources have always played a very important role when it comes to digging out the truth.
Let me give you an example. Quite a few unnamed sources came forward to me and told me in blunt terms that we simply didn’t need to spend $200 million on a waste water treatment plant. Named staff said that we did. The named sources were wrong, the unnamed sources were right.
When newspaper reporters use unnamed sources, it all comes down to whether you trust the reporter. And in this case, you are free to trust me or not. I was right when it came to unnamed sources saying that our waste water treatment plant cost twice is much as necessary.