In closed session following their regular monthly meeting last Monday, Aug. 19, the Garberville Sanitary District board of directors decided unanimously to remove the Southern Humboldt Community Park from the proposed annexation and revised place of use applications.
The board made the decision on the advice of their attorney because of a perceived threat of litigation if they proceeded with the applications based on the most recent draft of their Initial Study/Mitigated Negative Declaration (IS/MND), which asserts that this action will not create any environmental impacts that cannot be mitigated.
Attorney Tiffany Wright of Remy, Moose, Manley LLP, specialists in land use and environmental law, recommended removing from the application any property that was not actually receiving or consuming district water at the time the study was done in May 2013.
All the parcels proposed for annexation and inclusion in the place of use, except for the park, apparently meet this criterion in Wright's opinion.
The conversation between Wright and the board took place as part of a conference call during the closed session, GSD's capital projects manager Jennie Short told the Redwood Times in a phone interview on Tuesday.
The documents have not yet gone to the board for final approval, a step that is expected to occur at GSD's regular monthly meeting in September.
"We may recirculate it even though we don't have to, in the interest of transparency," she said.
In the meantime, GSD will continue accepting written comment from members of the public, as well as hearing comment at its next meeting.
SHCP could apply separately for annexation to the district at a later date, Short said.
"This was a hard recommendation for the board to come to," she added, "but it's in the ratepayers' best interest. The other 400 customers have to be considered. The benefit did not outweigh the risk."
Board chair Dennis Bourassa confirmed the difficulty of the decision in a phone interview with the Redwood Times last Wednesday. "We were under threat of litigation and we can't afford litigation," he said.
But Bourassa also expressed his displeasure with critics of the annexation. "They said we have to do a [full Environmental Impact Report] because we're adding new services, but we're not adding new services. We're complying with state regulations.... We're not changing by one tiny bit the amount of water or services," he said.
The IS/MND is intended to cover two separate but closely related requirements. The county Local Agency Formation Commission (LAFCo) requires a special district such as GSD to make certain that all the properties it serves are within its legal boundaries.
The California State Water Resources Control Board restricts the sale of water by all public and private water agencies to a legally established "place of use."
During the process of getting funds from the state Department of Public Health to build a new drinking water treatment plant, GSD discovered it needed to meet both these requirements.
In turn, both processes require GSD to satisfy regulations of the California Environmental Quality Act (CEQA) to make certain that extended water service outside its current boundaries will not have significant environmental impacts.
Some members of the public have taken issue with the board's conclusion that a simple MND covers all the potentially significant environmental issues arising from annexation.
This group has repeatedly asked for a full Environmental Impact Report (EIR), which usually requires professional studies by third parties of potential impacts raised in the Initial Study or brought to the district's attention during the public comment period.
Lynne R. Saxton, an attorney specializing in water quality and environmental issues, wrote GSD a letter on July 8 on behalf of her client Ed Voice, whose family owns property close to the community park.
In her letter, Saxton requests that GSD complete a Programmatic EIR; that is, an EIR that takes into account the total environmental impact of a chain of projects proposed by GSD, beginning with the new treatment plant and replacement of the failing Alderpoint Road storage tank with a much larger tank.
Additionally, Saxton asks that "the District refrain from annexing the Community Park" until SHCP completes its own EIR, which is required as part of SHCP's application to the county for a General Plan Amendment and rezoning to permit more uses of park property.
Among the issues cited in Saxton's letter, which runs a little over 11 pages, is the growth-inducing potential of annexation and water service, particularly to prime agricultural soils in the annexed areas, a specific issue at the community park and on some properties on the northwest side of Garberville.
Referring to all of the properties proposed for annexation, Saxton writes: "The [IS/MND] states that 85 [legal parcels] will be added to the District boundary, 27 of which can be further developed. It does not state how many water or sewer connections could potentially be added."
Saxton points out the development potential in other parcels as well; for example, a 105 acre parcel in the Connick Creek subdivision "that is anticipated to be developed."
GSD has maintained that the annexation will not create any new connections or services but is simply bringing existing services into compliance with state law, therefore it will not cause any growth potential or environmental impacts that do not already exist.
Saxton argues, however, that because GSD began serving the areas outside its boundaries after it acquired the privately-owned Garberville Water Company in 2004, no study of the impacts of water service to these areas was ever done, and this is now GSD's obligation under CEQA before it can annex them or bring them into its place of use.
After a description of these and many other alleged flaws in the MND, Saxton concludes, "As discussed above, the Ed Voice Family asks the District to analyze the matters above under the Environmental Impact Report...."
The letter also reiterates the request for a Programmatic EIR "to account for the future discretionary approvals impacting surface and groundwater...." referring to the likelihood that in the next few years GSD will be planning other projects that require compliance with CEQA.
"Last, we ask that the annexation and expansion of Place of Use for the Community Park be postponed until after the Park's EIR has been completed and the District knows the types of services that will be needed," the letter concludes.
There are no references to litigation in the Saxton's letter.
"The bottom line is that they're against the park," Bourassa said, referring to critics of the IS/MND. He particularly cited Ed Voice as being motivated by opposition to SHCP.
"I'm opposed to annexation with only an MND. This requires an EIR," Voice responded when contacted by the Redwood Times. "I'm trying to protect the river from overuse by development."