NCSD Half Truth #1: "The court order us to do it"
NCSD often makes statements like "The court order us".
This is not true, see Ed Eby letter to the Editor and related documents.
02/16/12 Santa Maria Times, Nipomo water misinformation, Ed Eby, Rebuttal documents
02/16/12 Santa Maria Times, Nipomo water misinformation, Ed Eby
This is not true.
NCSD entered into a settlement with some parties in the litigation. The Judge approved those parties replacing their lawsuit with the settlement that they signed.
The Judge has not look what is in the settlement, what the words mean or madeany determinations or orders.
In order to get a court order a number of steps would have to happen.
1. A party to the settlement, and only a party to the settlement, would have to apply to the court and make a claim that some other party to the settlement was not doing what they thought they should. (sue a party to the settlement)
2. The settlement itself and other evidence would be taken before the Judge
3. The party being sued would bring counter evidence and argument
4. The Judge hear the issue would make a decision and a possible order.
Clearly the NCSD board understands There is no court order to get supplmental water.
In a statements made just when the settlement was signed:
2005 Al Simon Quote to be added.
7/27/2005 NCSD Director Ed Eby: "I take exception to something that was said today about the, stipulation requires the purveyors to bring in supplemental water, The stipulation does not require us to do anything. The stipulation says we, the NCSD contemplates bring in water and therefore the purveyors will buy that water from NCSD. There is nothing in the stipulation or any court order that says we are required to buy supplemental water we are contemplating it, we are doing that on our own volition, we are not doing that on court order. There is no court order or decision that says we have to get supplemental water. We are contemplating it because it is in the best interest of our customers"
Audio of comment only
Even if one considered the stipulation a court order, there is no time which supplemental water has to be completed.
2/28/11 Presentation to SCAC by NCSD board member Jim Harrison"
Vince, was there actually a mandatory date that this has to be done by?
Harrison, NO
Vince, then in other words this is not mandatory then?
Harrison, I don't know of a date that the judge said this has to be done by tomorrow or next year
Audio of comment only
Even if the stipulation had a due date the stipulation clearly contemplates that the Water Intertie might not be built.
The Stipulation: Page 22 line 16: "5. The enforcement of the provisions of Paragraph VI(D) below is conditioned upon the full implementation of the Nipomo Supplemental Water Project, including the Yearly use of at least 2,500 acre feet of Nipomo Supplemental Water (subject to the provisions of Paragraph VI(A)(2) above) within the NMMA. In the event that Potentially Severe Water Shortage Conditions or Severe Water Shortage Conditions are triggered as referenced in Paragraph VI(D) before Nipomo Supplemental Water is used in the NMMA, NCSD, SCWC, Woodlands and RWC agree to develop a well management plan that is acceptable to the NMMA Technical Group, and which may include such steps as imposing conservation measures, seeking sources of supplemental water to serve new customers, and declaring or obtaining approval to declare a moratorium on the granting of further intent to serve or will serve letters. In the event that it becomes apparent that the Nipomo Supplemental Water will not be fully capable of being delivered, any Stipulating Party may apply to the Court, pursuant to a noticed motion, for appropriate modifications to this portion of the Stipulation and the judgment entered based upon the terms and conditions of this Stipulation, including declaring this Paragraph VI to be null and void, and of no legal or binding effect."
The stipulation clearly contemplates that the Water Intertie might not be built is confirmed in the court transcript by NCSD's lawyer:
As stated by the court in a discussion on the settlement in the 5/7/07 hearing transcript page 11, line 26
Mr. Markman: "And the final point they make is that we don't have a physical project or ancillary agreements in place yet to implement the mesa program, and that is true. That is true.
And we're going to try to get some of that done between now and the time there is a trial, and it might be all taken care of but there is a physical project that needs to be approved, that needs to be CEQA processing and constructed. We recognize that in this settlement.
If for some reason that is substantially or permanently impeded, those of us interested in water production on the mesa will have to come back before this court with another program or we're going to have to have some ancillary trial and have the court prescribe a program for us.
I'm confident that won't happen but I'm not sure, because i am not sure of anything that is going to happen down the line.
All the parties who have stipulated have agreed to support this program, not oppose it with litigation, not impede it based on CEQA challenges, but there may be people out there who do.
But we -- since we can't get this done for two or three years in a permanent manner, we intend to proceed with the program and if -- if it fails, if it's blocked, we will be back before the court. And that's one reason why the court retains jurisdiction in these sorts of cases.
So that's all i would offer on the mesa situation."
The stipulation clearly contemplates that the Water Intertie might not be built is confirmed in the presentation by NCSD's lawyer:
2/27/08 Markman Presentation after Superior Court Judgment was filled, page 13:
5. If a potentially severe or severe water shortage condition ensues before implementation of the Project, NCSD, Rural, Golden State, and Woodlands are required to develop a well management program acceptable to NMMA Technical Group which may include conservation measures, developing a different source of supplemental water or a moratorium on "will serve" letters.
6. Any Stipulating Party may move the Court to modify the Judgment based upon the fact that the Supplemental Water Program is not being implemented.
The stipulation is only between the parties that signed it and it can not go beyond what is legal.
As stated by the court in a discussion on the settlement in the 5/7/07 hearing transcript page 9, line 13
The court: " Clearly parties to a lawsuit can enter into a settlement of their rights and responsibilities, duties, obligations to the extent that they wish to do so, to the extent that it comports with the law."
The Superior Court Judgment is stayed pending appeal.
The California Appellate Courts, 6th Appellate District Cases H035056, H021401, H027639, H033544, H034362 for the appeal of the Santa Maria Groundwater Litigation case are located on the web site at: http://appellatecases.courtinfo.ca.gov/search.cfm?dist=6