Mysterious sewer line leaps out of Livingston

Submitted: Feb 07, 2006


Lydia Miller, President
San Joaquin Raptor/Wildlife Rescue Center
P.O. Box 778
Merced, CA 95341
(209) 723-9283, ph. & fax

Steve Burke
Protect Our Water (POW)
3105 Yorkshire Lane
Modesto, CA 95350
(209) 523-1391, ph. & fax

Bryant Owens
Planada Association and Planada Community Development Corporation
2683 South Plainsburg Road
Merced CA 95340-9550
(209) 769-0832


Robert Lewis
Director of Planning and Economic Development
Merced County
2222 M Street
Merced CA 95340

Jon LeVan
Local Agency Formation Commission
Merced County
2222 M Street 2nd Floor
Merced CA 95340

Board of Supervisors
Merced County
2222 M Street 3rd Floor
Merced CA 95340

Brandon Friesen
1416 C St.
Livingston, CA 95334

Monday, February 06, 2006

Ladies and Gentlemen:

It has come to our attention that the City of Livingston has authorized a private developer to install a 42 -inch sewer main connecting a 300 acre parcel along Magnolia Avenue near Westside Blvd, in a portion of unincorporated Merced County adjacent to but outside the SUDP of the City of Livingston.

This is clearly a ‘project’ under CEQA, and must be halted immediately and the City of Livingston must be enjoined and required to follow all the appropriate protocols for environmental review of a project of this nature. In addition we request and require the County of Merced Planning and Economic Development Department to assert its land use jurisdiction in this matter.

It is our understanding that the installation of these municipal services is a prelude to annexation of this 300-acre parcel into the City of Livingston. As such the entire project is premature and represents a clear violation of LAFCo of Merced County’s jurisdiction and statutory authority with regard to out of boundary service extensions in Merced County.

The City of Livingston’s mistaken authorization of this project has allowed grading and deep ripping on agricultural land in violation of the County of Merced’s Williamson Act Zoning.

The particular parcel must be removed from the Agricultural Preserve according to a prescribed process adopted by the County Board of Supervisors in 2000. This has not been done.

The City of Livingston has acted irresponsibly and precipitously in authorizing non agricultural land uses on land not properly under its legal jurisdiction: Livingston may not act as lead agency with regard to any aspect of this ‘project’ without providing the appropriate Notice of Exemption to the Governor’s Office of Planning and Research, The EPA at the federal level, the County and the Local Agency Formation Commission. No evidence exists that any such notice of exemption has been filed with any of the aforementioned agencies. If such notice has been approved at any level of the City of Livingston City Council level, these commentators challenge the validity of such notice and ask that it be invalidated.

Proceeding in the aforementioned manner places the City Council of Livingston in violation of California Government Code 65402 requiring mandatory referral of such a proposal to the county LAFCo, and the county Department of Planning and Economic Development. This has not been done. If this project is to proceed correctly, given the total acreage involved, such project would definitely qualify as a ‘major expansion’ of an SUDP. Such a designation automatically triggers the need for CEQA review and an EIR is mandatory. The City of Livingston has previously attempted to annex agricultural land by designating it as blighted. This tactic was rebuked by the County of Merced and eventually rescinded by the City of Livingston.

There is no evidence of any negotiations between the County of Merced and the City of Livingston regarding tax and revenue sharing agreement, and consequently there have been no noticed public meetings to discuss those agreements, in violation of state law, local ordinance, and Merced county’s current General Plan. The county of Merced is currently in the preliminary stages of updating its General Plan. The City of Livingston has not yet filed even a notice of preparation for expanding its SUDP. The proposed project is therefore premature in that the context for approving such a major expansion does not yet exist for either jurisdiction. There is no notice of preparation on file with the county or the state reflecting any such intention on the part of the City of Livingston. We therefore request that this project be stopped until such time as the appropriate land use authority can be determined and that jurisdiction be asserted.

The commentators’ request, under the California Public Records Act, to inspect any indemnification agreements entered into by this developer, Mr. Hostetler and Co., and/ or any of his associates, specifically Mike Gallo and Co., ‘holding harmless’ the City of Livingston for any legal challenge to the environmental review of the proponent’s (s’) project. We also request to inspect any documents showing any other agreements between the two named parties and the City of Livingston. We also request to inspect any documents pertaining to any agreements between local business or industry (specifically Foster Farms) with regard to connection to the proposed waste water conduit into the city of Livingston.

To the best of our knowledge, a Ms. Donna McKinney, possibly a consultant with the firm PMC, is acting as the director of Planning for the City of Livingston. Who is paying her salary? To whom does she report?

Another matter of concern is the fact that authorizing this sort of activity outside of an existing SUDP is a violation of the Subdivision Map Act. According to the documentation that has been inspected to date it appears as though the developer has requested pre-zoning for parcels within this 300-acre site, to which the 42-inch sewer main is to connect. This seems to be several steps premature for an annexation request. When will the public have an opportunity to comment on any identified significant environmental effects?

We have grave concerns over the lack of information concerning who will be allowed to access this new infrastructure. Can the City of Livingston WWTF actually serve the anticipated urban expansion? What funding source exists for other necessary municipal services? How does this proposed project coordinate with regional water and wastewater needs? If a municipality in Merced county becomes incapable of serving the WWTF needs of its customers and fails, does the responsibility for those services revert to the county? Can the county afford to assume that sort of infrastructure liability?

Have there been any Can/Will Server letters of agreement between the Livingston WWTF and this developer? Is a Will Serve letter valid in the demonstrable absence of capacity?

Given that this developer has a plethora of residential development projects in Merced County and elsewhere, and considering the abject indiscretion of the City of Livingston in lending its ‘approval’ to this developer (especially since the approval lacked jurisdiction or authority) ,we request that all development projects by this developer throughout Merced County and especially anywhere proximate to the City of Livingston or the surrounding unincorporated communities be red-tagged (administratively halted) until such time as the environmental review of each of those current projects can be reviewed for accuracy and compliance with the appropriate laws, codes mitigation measures and appropriate checklists, and until the public is assured that each project is under the inspection and review of the appropriate agency.

This hubris on the part of the developer coupled with the abject irresponsibility of those agents of the City of Livingston demands commensurate sanctions by the appropriate governing bodies and/or state agencies. We request that those authorized to do so pursue such sanction to the fullest extent of the law.

We appreciate your consideration of this information and request to be notified in writing prior to deliberations and/or actions pertaining to this information by each of the notified agencies. Regarding inspection of the documents requested above, we reserve the right to inspect any documents identified subsequent to the above request, prior to any copies being made. We will give specific instructions as to which documents we need copies of when they have been identified and are available for inspection. It is our understanding that each agency notified in this document is responsible to respond to our request, within the statutory time frame with any identifiable documents described herein.


Lydia M. Miller, President Steve Burke
San Joaquin Raptor/Wildlife Rescue Center Protect Our Water

Bryant Owens- ChairmanPlanada Community Development Corporation

Cc: Interested Parties

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Levee analysis: New Orleans and California

Submitted: Dec 10, 2005

More Katrina aftershocks; Levee analysis delivers bad news for Californians

Ventura County-Star – 12/8/05

By John Krist, staff writer

When the levees protecting New Orleans failed catastrophically in the wake of Hurricane Katrina, flooding 85 percent of the city and killing about 1,000 people, the devastation also focused attention on the West Coast's own nightmare-in-waiting: the flood-prone Sacramento-San Joaquin River Delta, where a fragile network of earthen levees stands between California and disaster.

Like New Orleans, the Sacramento-San Joaquin delta is below sea level and under constant threat of inundation. New Orleans has the Mississippi River, Lake Pontchartrain and the Gulf of Mexico to contend with; California's delta is beset by San Francisco Bay and the mingled waters of the Sacramento and San Joaquin rivers, which together carry nearly half the state's runoff.

Delta levees protect the pumps driving the state's two biggest water-delivery systems, as well as critical power lines, highways, oil and gas pipelines, and deepwater shipping channels. Widespread levee failure like that in New Orleans would deal a severe blow to the California economy and threaten thousands of people.

The danger in the delta has long been recognized, at least by those in California's water and flood-protection agencies. They have called repeatedly over the past decade for the state to address the problem, but the magnitude of the task has proved to be a paralyzing hurdle.

Katrina knocked some gaping holes in that barrier. And now, three months after the hurricane transformed New Orleans into a soggy rubble heap, preliminary conclusions of the expert team assigned to investigate the levee failures there are being made public. Those findings ought to demolish any remaining political obstacles to California levee rehabilitation.

The team's final report has not been released, but the draft conclusions were reported last week by the New Orleans Times-Picayune, which interviewed the engineers and university professors hired by the state to analyze the levee failures.

The team found that only one of the New Orleans levees failed because the hurricane-driven storm surge washed over its top. Most of the flooding, the investigators found, was caused by the collapse of levees as their foundations were undermined by seepage and soil liquefaction, even though their concrete-armored tops remained well above the water level.

The reason for the foundation collapse was faulty design by the U.S. Army Corps of Engineers, according to the investigators. Steel sheet pilings that should have been driven deep into the ground to anchor the levees and prevent water from seeping through the weak soil underneath them were far too short to be effective.

The relevance of this to the situation in California's delta has little to do with the steel pilings but everything to do with the unstable nature of the ground beneath the levees and its potential to compromise an otherwise robust structure.

The ground beneath the New Orleans levees, the investigators noted, is mostly marshy soil and peat -- a very porous and weak medium. This is precisely the situation in the Sacramento-San Joaquin delta. The levees there typically rest on peat, and the embankments are largely constructed of muck dredged from former marsh.

When flood experts talk of bringing the delta levees "up to Corps of Engineers standards" -- the costly goal of most rehabilitation scenarios being discussed -- that simply means making them a little bigger and using concrete to armor their surfaces against erosion.

But as Katrina demonstrated, none of that matters when a levee's foundation is undermined. And that's precisely the greatest threat facing California: that a moderate earthquake on one of the many faults west of the delta would liquefy or deform the ground beneath the levees, causing them to collapse.

The likely consequences of such a quake were described to California water managers at a conference last week in San Diego: at least 30 levee breaks, which would flood 3,000 homes and 85,000 acres of cropland, close the Port of Stockton and two highways, disrupt electricity and natural-gas supplies, and send 300 billion gallons of sea water toward the pumps supplying drinking and irrigation water to two-thirds of California.

It would take at least 15 months and $6 billion just to repair the breaches and restore a third of the water export capacity. The total repair bill over five years would be $30 billion to $40 billion. As many as 30,000 jobs would be lost, and some parts of the delta might never be reclaimed.

The chances of such an event? About one in 300, according to Department of Water Resources Director Lester Snow.

"That was about what Katrina was," Snow said. #


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Sucker Punched

Submitted: Dec 09, 2005

Letters from the River, 2

Gary McMillen

Enough Doppler radar. It was Saturday afternoon when I drove out to Lake Pontchartrain to gather my thoughts and make a decision. Sitting on the seawall, listening to the splash of waves on the concrete steps, I noticed there were no seagulls. That's when I decided to evacuate. If the birds didn't want to be in New Orleans, I sure as hell didn't want to stay, either.

I soon became part of the human wave, looking for hotel rooms at any exit off Interstate 10. Standing in lobbies for hours, getting on a list to take a shower, chasing after rumors of vacancies and shelter, I began to accept that "normal" was something that did not exist anymore. On the outskirts of Lafayette a Vietnamese fishing family took me in. For three days and nights, we ate boiled crabs spread out on newspaper on the floor, drank beer, and watched the destruction of an American city unfold on CNN. Sleep was fitful. My son had promised he was evacuating to Atlanta, but I had not heard from him.

Excuse me for rambling, but in the days and weeks in the aftermath of Hurricane Katrina, thinking is a dull throb. The blurring effects of the storm's sucker punch have me wobbly. The rational mind, numb from the frantic pace of dislocation, avoids thinking of what was left behind: a home that got nine feet of water, books, business records, laptop computer, a samurai sword, music, and tapes. Levees can be repaired but not that photograph of my dad fly-fishing in a trout stream in California.

"Goodbye" to e-mail. "Hello" to life of the wandering gypsy. I live at the Best Western in Shreveport now. I eat biscuits, smoked sausage, and white gravy at the breakfast buffet before going to work. One morning, at the entrance to the Louisiana State University Medical Center there was a cardboard box at the door with a sign: "For Victims of Hurricane Katrina." I hate the word "victim," but went up and peeked in the box. At the bottom were a pack of diapers and a tube of toothpaste. I looked in both directions to see if anyone was watching and snatched up the Colgate. I am the first in the McMillen-Gallagher clan of Scots and Irishmen to have applied for food stamps.

In the midst of crisis, I have learned there are two kinds of people in the world. There are people who tell you that they have an extra room off the garage where you can stay for the weekend, and then there are people who throw you the keys to their house. There are people who bring you boxes of clothes that don't fit, and then there are people who ask for your waist size. There are people waiting for me to call them, and then there are people like New York trainer Danny Peitz, who kept punching my number into his cell phone until he reached me.

I'm drinking much more than usual: Old Forester, straight up, no ice. I have observed my state of mind and it's not all pretty. The dry wit, the smile, the appreciation for jokes and just plain silliness have dissolved. Pounded by the stress of uncertainty, I have turned into Joe Friday. "Yes," "No," "OK" are standard expressions from my new robotic personality.

My son and I found each other. That was a celebration with relief. But there is a long list of big and little things that I miss and am concerned about losing. I had some horses on my Virtual Stable. I imagine them all winning and paying $36.40. I wonder if I had flood insurance. I wonder if the Fair Grounds is still there. I miss my Q-tip moment after taking a shower. I'm still puzzled about why I threw my golf clubs in the trunk of the car instead of some socks and a comb. Here I am with one pair of sandals, some jogging shorts, three shirts, two pair of underwear and a 7-iron. If you want to go deep, what I am really afraid of is losing contact and not seeing my friends again.

If anyone from Enterprise reads this, I still have your rental car. It's a 2005 Ford Taurus, assigned to my Visa card and scheduled for return on Aug. 29. Bringing it back to New Orleans would have been a mistake for both of us. I think the Super Derby (gr. II) is coming up soon at Louisiana Downs. Maybe I'll hit the trifecta and we can settle up when I get back.

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On the road

Submitted: Dec 09, 2005

Letters from the River, 1

by Gary McMillen

Last night we had our LSU Human Resources Christmas party in the lounge of the hotel.

Pure coincidence but the owner (and his wife) of the Best Western Richmond Suites chose last night to drop by and inspect the property. They opened the door to the lounge and stood in amazement.

Tamara walked up, introduced herself and gave them a plate of fried chicken, a bowl of gumbo and bought them a drink.

Pam and Valencia had fixed delicious Swedish meatballs, jambalaya and two types of chicken in addition to finger sandwiches for 100.

The cash bar set a single night record for sales.

Nancy, the manager of Best Western, walked around, mingling with the crowd, shaking her head, calling the night an "epic."

It was freezing cold but about 20 Human Resources and Payroll staff from Shreveport Medical Center came. Along with any and all hotel guests that showed up, it was hard to find a place to sit. We turned off the wide-screen plasma television and played CD's of The Iguanas, Ernie K-Doe and Professor Longhair.

A group of engineers from Iowa and Minnesota (in town to repair pumps from the hurricane) could not believe what they were seeing. "Man, did we come to the right hotel," one of them said, scooping up his second plate of dirty rice and sausage.

Most of the evening Frankie Lee sat by the fireplace, drinking straight shots of Jose Cuerva, talking to Christy the bar-maid about her modeling career and just telling all manner of lies into the night.

Gary McMillen, my oldest friend (we met at Lincoln School, Modesto, in the 5th grade), is currently working for a state agency personnel office in Shreveport and Baton Rouge, sorting out problems for thousands of employees in the aftermath of Hurricane Katrina. He lost a house in the 9th Ward and an apartment in another section of New Orleans. He has been writing about horse races in the South for 30 years.

He told me today, about this party: "You can take Gary out of New Orleans, but you can't take New Orleans out of Gary."

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Where is it written?

Submitted: Nov 27, 2005

Metropolitan Water District of Southern California's lawyers filed a legal brief last week that argues that the drastically crashing population of Delta Smelt cannot be used as an argument for curtailing water shipments from the Delta to LA. The Delta Smelt, they say, is not under the protection of the federal Endangered Species Act because it only lives in one state. (1)

Perhaps California's Endangered Species Act will protect the smelt. However, Metropolitan's brief brings up a far more important issue.

But, first, already slipping beyond the living memory of Californians is the Colorado River Agreement in the first Bush term. Bush appointed a Colorado attorney general, Gale Norton, secretary of the Department of Interior. Norton brought with her Colorado's top water attorney, Bennett Raley. Raley's assistant, Californian Jason Peltier, was executive director of the Association for California Water Agencies. The result of the negotiations on the Colorado was that the upstream states would keep more and Southern California would get less. Since then, Metropolitan has been buying water contracts wherever it could in Northern California and the last three years of pumping out of the Delta have been the heaviest in history and have contributed greatly to the "sudden" collapse of the federally endangered Delta Smelt populations.

This water war was inevitable, but Metropolitan's argument raises an interesting question. This species of smelt is limited to the Delta. The Delta is its home. It has no other. Its home is being destroyed by Southern California water agencies 400 miles away, which are providing water for a growing population of people, many of them who have moved from far away to Southern California.

Let us speak the unspeakable. The smelt cannot move. The people can move and, in many cases, have moved to Southern California, a desert region without enough local water supplies to support a tiny percentage of its present human poplation.

Why can't the people move away from Southern California to avoid extinguishing this species of fish and once again damaging the salmon populations, which cannot spawn in LA storm drains any more than Delta smelt can migrate to Beverly Hills swimming pools.

People can move. They have demonstrated their ability to do it, time and time again. Wildlife species have a harder time relocating.

"Where is it written?" ask the brilliant Metropolitan water attorneys. "Where is it written" that a species specific only to one state can be covered by the federal ESA?

To such a sophisticated and expensive rhetorical question, one might reply with another: Where is it written that Southern California has the right to seize Delta water, gravely endangering one or more species of fish, because it has insanely fomented growth in its arid region so far beyond the carrying capacity of its resources that the word "carrying capacity" uttered aloud in Metropolitan lawyers' tennis clubs might be cause for suspension or revocation of membership?

Other questions arise. Humanity, of course, asserts the right to dominate lesser species. It doesn't have to be written down. But it gets trickier when the south exerts its domination over the north in our state water wars, because the south has a larger population and therefore more political representation. Then there is a good question for academics with the resources for such studies: a team of University of California professors ought to try to come up with an approximate figure of how many millions of dollars are spent annually by developers, water agencies, local, state and federal government agencies (including UC) on propaganda, lobbying and lawyers to defeat environmental laws and regulations. A publicly financed institution like UC ought to be the ideal site for such a study in view of the amount of money public agencies like UC spend to fight environmental law and regulation.

Bill Hatch

(1) http://www.sacbee.com/content/opinion/story/13895995p-14734826c.html

Editorial: LA's new water theory; Lawsuit: Feds can't protect Delta smelt
Sacramento Bee – 11/23/05

For years the Metropolitan Water District of Southern California has tried to assure a skittish north that it isn't looking to harm the Sacramento-San Joaquin Delta. Sure, it wanted water for its 17 million customers, but in a safe, reliable way.

The Delta these days is in an environmental free fall, its fish species crashing to record low numbers. And as this is happening, Metropolitan and other water districts are advancing a legal theory in court that the federal Endangered Species Act does not apply. For Southern California to attack a key environmental law during the Delta's worst environmental crisis is hardball that harkens back to water tactics of yesteryear.

Why wouldn't federal law pertain to the Delta smelt, a listed species meriting protection?

The smelt, according to a legal brief filed by Metropolitan and all of the State Water Project contractors, "have no apparent role in interstate commerce." And the smelt don't swim between two states. Its habitat, the brief continues, "is located entirely within the state of California." Therefore in this lawsuit, Metropolitan and fellow water pumpers "intend to raise the issue of whether the Endangered Species Act can properly be applied to regulate and protect purely intrastate species."

The theory may ring some bells. It came up during the confirmation hearings of Supreme Court nominee John Roberts.

He had once opined in a case that a "hapless toad" isn't protected by the federal Commerce Clause because the toad, "for reasons of its own, lives its entire life in California." Roberts is now chief justice of the Supreme Court. Whether this hapless toad, or the Delta's hapless smelt, are truly protected under the federal Endangered Species Act remains to be seen.

To protect the smelt and migrating salmon, state and federal agencies for years have curtailed pumping from the Delta during certain times. The same agencies are looking to pump more water at other times, resulting in a net increase in pumping. The Natural Resources Defense Council is suing the federal government over the new pumping strategy (NRDC v. Norton, Case No. C 05-00690 CW). Southern California makes its "hapless smelt" argument, among others, in this case.

Fortunately, California has a state Endangered Species Act. It protects the Delta smelt. But any law is subject to change, either through a decision by courts or legislators.

For Southern California to try to whittle away at Delta protections is an extraordinary action. But Metropolitan staff says its board was never consulted beforehand about advancing the new "hapless smelt" legal strategy. Wow. Who's in charge down there?

To find balanced, lasting solutions in the Delta, the state desperately needs Metropolitan to reduce its dependency on this estuary and to play a centrist role between the hard-line positions of agriculture and the environmental community.

The behavior of Metropolitan in this lawsuit, by seeking to undermine federal protections of the Delta, is radical, reprehensible and revealing. #

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Border canal seepage

Submitted: Nov 18, 2005

The US/Mexican border is a place generally despised by the interiors of both nations. The general idea is that the border is to be exploited for whatever you can get out of it.

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