Former Lebec County Water District Board President Darren Hager recounts events which led to construction of a 12-inch water line under Cuddy Creek without proper procedures. [video by The Mountain Enterprise]
FRAZIER PARK, CA (Saturday, March 24, 2012 at 11:59 a.m.)–Copies of correspondence between former Lebec County Water District President Darren Hager and officials at California Department of Fish and Game were released today by The Mountain Enterprise for the public to read. The Mountain Enterprise obtained the correspondence through a public records request to Department of Fish and Game in February.
The correspondence concerns efforts by Hager to obtain information about the status of a 12-inch water line constructed under Cuddy Creek without required permits in December of 2009.
The following documents are contained in a PDF (Adobe Reader) file which can be downloaded at the link below:
1) Ten pages of correspondence between then-LCWD President Darren Hager and officials at Department of Fish and Game;
2) Two pages of correspondence between then-LCWD President Darren Hager and officials at U.S. Fish and Wildlife Service;
3) Five pages of correspondence between Jan de Leeuw of TriCounty Watchdogs and officials at Department of Fish and Game.
The following is a republication of three articles from The Mountain Enterprise, a January 20 story, a March 9 story and a March 9 editorial about Lebec County Water District, provided to establish a context for reading the correspondence.
See the video of former LCWD President Darren Hager’s comments at the January meeting of the water district’s board and the dilemma faced by the current board (above)
NEW WATER BOARD FACES OLD PROBLEMS
The Mountain Enterprise January 20, 2012
By Gary Meyer and Patric Hedlund
Waking up to a Christmas with no water is a fresh memory from two years ago for many who live in the Lebec County Water District.
The new LCWD Board has turned again to confront the problems inherited from 2009 and 2010 during the building of the Holiday Inn Express Hotel.
The legacy of ill-feeling from that episode led to resignations by two board members who claimed health concerns early in 2010. Bob Karr and Bruce Koch both then participated in a series of closed meetings at the Holiday Inn Express Hotel to seek the recall of remaining board members and ouster of then-board president Darren Hager. The Kern County Grand Jury was called in by both sides as well.
A negative whisper campaign by one group and accusations about misconduct by both factions complicated last year’s efforts to raise residential water rates. But a 2011 engineering report concluded the district would not be able to maintain and upgrade its system without increasing revenues.
Fluoride and other minerals in the water of two of the district’s wells exceed California Department of Health maximum standards. The current design of the distribution system does not allow water from several wells to be processed together, so out-of-compliance water cannot be diluted before it is distributed to consumers.
Now a clock is ticking on the state’s deadline for Lebec to bring its water quality into compliance. If it doesn’t do that, the state can take over the system.
The 2011 board followed what is known as Proposition 218 guidelines to increase residential water rates from $12.10 for 1,000 cubic feet (cf) of water per month to $36.30 for 750 cf (5,600 gallons) per month. It costs $25 for the next 1,250 cf (that is two cents for each 7.5 gallons of water).
The goal, board members said, is to promote conservation while providing enough income to maintain and upgrade the system. Dissenters said the rate increase vote was flawed-but the need for revenue to invest in infrastructure is not disputed. Still, several members of this new 2012 board told voters they want to roll back the rate increase.
Flashback to a Dry Christmas
There is old business to take care of first. Over ten days at the end of 2009 water service to several Lebec neighborhoods failed. The cause is still disputed. The problem followed the installation of a private 12-inch water pipe through Cuddy Creek about December 4-7, 2009 by landowners and developers Jeff French and Emilie Wainright. The two sold the land on which the Holiday Inn is built. They wanted to help the hotel open its doors by Christmas 2009.
Wainright’s deceased husband, Jim Wainright, helped to found and run the water district until his death in 2007. Hager, a retired L.A. County Sheriff’s deputy, says the district needs to grow beyond its former "good ol’ boy" practices "and follow the law." But the Wainright-French line was connected to the LCWD system in 2009 without a meeting of the board to obtain approval.
Flash-forward to 2012
Now this new board is being asked to accept ownership of the line. At the January 9, 2012 meeting, new district manager Charles Grace (of APT Water Services) gave background on the line placed under Cuddy Creek. New board member Millie Karr said she heard Emilie Wainright donated the 12-inch line to the district. Karr said the board should accept the line "and move on."
[Wainright told The Mountain Enterprise she offered to dedicate the 12-inch line to LCWD in December of 2009 at no cost to the district.]
Hager’s View of History
On January 9, 2012 Darren Hager stood to say there is more to the story. He told a history of the 12-inch water line project that asked: "Who at the water district authorized its construction and connection to the Lebec water system? Was the authorization legal? Were proper permits issued? Does an acceptable legal easement exist? and Why were excavations through the middle of Cuddy Creek done in the dark of night?"
Hager charged that in 2009 former board director Bob Karr (husband of newly-elected director Millie Karr) and then-board president Bruce Koch acted privately to approve the construction of the 12-inch water line to the hotel. Hager said Koch failed to bring the matter to a public meeting-as required by law. He said they proceeded without the knowledge of the water district’s engineer.
"Bob Karr and Bruce Koch are both civilly liable for any dollars spent as a result of the building of that 12-inch line that would come from district funds," Hager charged.
He said that could include thousands of dollars in legal, surveying and engineering fees.
Who’s in Charge and What is the Law?
When asked who had authorized the connection of the 12-inch water line to LCWD’s system, Bob Karr told The Mountain Enterprise: "Bruce [Koch] authorized that. I hadn’t been sworn in yet. Bruce and the secretary were unable to get hold of anyone and it was done under emergency provisions."
Steve Cozzetto was on the board then. He said in an interview on January 17, 2012: "Under no circumstances did Bruce Koch or Bob Karr call me for an emergency meeting. I have voice mail on my cell phone, an answering machine at my house and staff at my business picking up the phone. They could have gotten hold of me. There were no calls and no messages. And I don’t live that far [from the district office]. They could have found me if they wanted to. The Mountain Enterprise always finds me," he laughed.
Bruce Koch confirmed he authorized the water line but he did not comment on Hager’s claim that his authorization was a violation of state law.
LCWD had four board members in early December of 2009. Only one board member made the decision to approve a major line connection.
Conflict of Interest?
Director Millie Karr did not comment on Hager’s proposal January 9 that she should recuse herself from all discussions of the 12-inch line and abstain from voting on it because her husband Bob Karr may be liable for costs incurred by the district.
In a January 10, 2012 interview, developer and engineer Jeff French echoed the claim that it was an emergency situation: "The fire department was extremely concerned that they had a commercial building [the Holiday Inn Express Hotel] about to open without adequate water pressure for fire protection."
French said there was an onsite meeting with LCWD board president Bruce Koch and Bob Karr in which all decided to bury the line under Cuddy Creek and run it out to Lebec Road.
But Hager says the contract signed with the hotel contains no deadline for delivering water service to the hotel. He disputes the validity of French’s "emergency" claim. The Mountain Enterprise reviewed the contract to confirm there is no deadline date in the document.
French, continuing with his emergency scenario, said: "I contacted Department of Fish and Game (DFG) prior to starting the project and they were equivocal about whether a permit was needed. We had an emergency situation and decided to act, since DFG was not worried about it."
French said DFG also sent an inspector to the site when work was being done. He said that person "felt the work was done in a satisfactory manner."
French said he did not have a record of the approval or the name of the DFG inspector.
Julie Means, Supervisor of Streambed Alteration permits for the California Department of Fish and Game, said in an interview Tuesday, Jan. 17 that verbal authorizations are not given by DFG personnel. She was supervisor in 2009 as well.
Hager claims he saw construction taking place in the middle of the night that weekend. When asked about work being done at night, French said he does not recall whether work was done at night.
The Mountain Enterprise asked Rex Mason of Quad Knopf Engineering-a firm that contracts for Frazier Park Public Utility District-about permitting procedures. Mason said, "The engineer would consult with the permitting agency about what is required. There would have to be an environmental document prepared and circulated for public comment." When asked if four days was enough to complete a 170- foot, 12-inch water line under Cuddy Creek, Mason laughed and said, "That sounds kind of far-fetched to me. It would take more than one week."
The Mountain Enterprise contacted all agencies that may have had a role in permitting the grading and construction of the water line. No permits were required by any agency except DFG.
Fish and Game’s Julie Means said that excavating through a streambed such as Cuddy Creek without following proper procedures is a violation of the Section 1600 Stream Alteration code.
DFG Environmental Scientist Annette Tenneboe told The Mountain Enterprise she was unaware of any DFG personnel visits to the site prior to her visit four months after the water line had already been placed under the creek.
Tenneboe confirmed Means’ statement that the DFG does not give verbal authorizations for such work, calling French’s comment into question.
Tenneboe said she is normally called to visit a site "when something isn’t quite right." She met with DFG Warden Levi Shaw at the site on April 19, 2010-four months after construction. She said normally, when there is a violation, the warden decides whether to forward a case to the district attorney’s office for possible prosecution.
French’s legal procedure may have been wrong, but Tenneboe said there did not appear to be an adverse environmental impact. The warden did not pursue prosecution.
French said DFG told him of complaints about the project after it was built, so he filed for an official permit January 26, 2011 "so that it would be on the record."
The California Department of Fish and Game’s Streambed Alteration Agreement with French & Associates is dated February 14, 2011. It was signed more than a year after the line was put into the creek. The post hoc agreement allows repairs and maintenance on the water line for a period of five years.
Tenneboe was told the 12- inch line is encased in concrete and buried 8 feet deep, based on French’s description of the project. She said the water company could be added as a signatory to the agreement if it decides to accept ownership. An amendment could be added to allow temporary excavation of the line so the district’s engineers can confirm it meets the district’s standards, she said.
Hager claims the improper procedure violated Ralph M. Brown Act open meeting requirements for public boards. French dodged a required 35-day California Environmental Quality Act (CEQA) public comment period prior to construction through the streambed. The post hoc DFG agreement exempts the pipeline excavation from other CEQA requirements.
The Mountain Enterprise described the events to its Brown Act legal expert. He said because the LCWD board quorum was not even consulted, it appears "rogue members acted on their own." He added that it appears to be "an egregious violation of public trust," that is vulnerable to litigation.
"The Brown Act and public notice requirements were dodged," he said, adding that a legal expert in municipal and special district law should be consulted.
He also said the District Attorney and the Kern County Grand Jury might well have an interest in these events.
Who would be responsible for a structural failure of the water line, given that no record could be found of any official inspection?
Tenneboe said whoever signs the DFG’s streambed agreement is responsible. If the water district takes ownership of the line, it will be the responsible party.
Back to the Future
Board president Delbert Clowes asked Hager whether the things he was describing are in the minutes and records of the 2009 meetings.
Hager replied: "They’re on audio tape, they’re in the minutes, it’s documented…the attorney has all this also…I don’t know if you guys have talked to the attorney [Joe Hughes] for the district…. [Hughes'] suggestion to the district was: ‘Do not accept that line; that line is going to give the district nothing but money problems.’"
Hager told The Mountain Enterprise he would be satisfied if all the proper permits were in place so LCWD incurs no expenses and the water line is guaranteed by French and Wainright for at least a year if LCWD is provided with acceptable legal easements.
In another matter, in August of 2010 the LCWD board reported to the Kern County Sheriff’s Office their suspicions that Michelle Miller Gustafson, the former district secretary, had embezzled funds. An investigation has been ongoing for 16 months.
Prosecutor in the Poorhouse
At the January 9, 2012 meeting, new board president Delbert Clowes told the board that the Kern County District Attorney’s Office suggested dropping the criminal charges against Gustafson: "Apparently they don’t want to spend the resources [to prosecute]," he said.
Clowes said that since the water district "has been made whole by the insurance company" and there has been partial restitution, "it’s kinda the insurance company’s call at this point." No action was taken on this agenda item, but Manager Charles Grace said the insurance company would respond to the Kern County District Attorney’s Office about dropping the case.
Hoping for Red Ink?
Much ado was made about $77,000 received from the Holiday Inn Express hotel as a "connection fee." During the treasurer’s report by Millie Karr the money was spoken of as though it was not really there, leaving the district thousands of dollars in the red.
Accountant Nathan Petty, who happened to be at the meeting for an audit report, cleared up the confusion by saying the audit period ending June of 2011 did not classify the $77,000 as reserves, so it is considered simply revenue.
Petty said if the board had officially reserved that money for a specific purpose without him knowing, then the audit would be wrong and he needs the board to tell him if that is the case.
Back in the Black
The board confirmed and agreed that the $77,000 was, in fact, revenue and the district was back in the black.
CRIMINAL PROSECUTION WAS THREATENED OVER LEBEC’S 12-INCH WATER LINE
The Mountain Enterprise March 9, 2012
By Gary Meyer
The civil engineer and developer who constructed a controversial 12-inch diameter water line for 170 feet underneath "blue line" Cuddy Creek in Lebec during December 2009 was threatened with criminal prosecution by the California Department of Fish and Game (DFG) a year later, according to records obtained by The Mountain Enterprise last week.
Jeff French, of French and Associates, is a civil engineer and partner with Emilie Wainright in developments in Lebec. They sold the property for the Holiday Inn Express Hotel, but then had trouble fulfilling their promise that an adequate water supply would be available.
French told The Mountain Enterprise in January 2012 that he had contacted the Department of Fish and Game (DFG) before beginning the project.
“I contacted Department of Fish and Game prior to starting the project and they were equivocal about whether a permit was needed,” French said in the interview. “We had an emergency situation and decided to act, since [DFG] was not worried about it.”
But DFG officials told The Mountain Enteprise they do not grant oral permits for such construction. We reported this year, in January, that two DFG officials denied to reporters that French’s statements were factual.
The line was built without permits. It was also connected to the Lebec County Water District distribution system without following the requirements of public water districts. No public agenda was issued about the connection, no board meeting was held, no quorum voted to approve. Two board members acted alone, as individuals, to authorize the connection.
Now The Mountain Enterprise has received the November 19, 2010 letter to Jeff French, in which DFG Regional Manager Jeffrey R. Single, Ph.D. tells French that construction of the water line eleven months earlier violated Fish and Game Code Section 1602, which requires a person to notify the department prior to “…substantially changing the bed, channel or bank of a river, stream or lake….”
Possible Civil or Criminal Prosecution
The letter tells French he would be required to submit notification of the project, including payment of a fee ($560). DFG then said, “If the department does not receive the notification and fee by December 30, 2010, the Department will pursue other enforcement options, including referring the matter to the District Attorney’s Office or the Attorney General’s Office for civil or criminal prosecution.” (download the full letter here)
In December of 2010—more than a year after the trench had been dug, the water line installed, the ditch back-filled and the pipe connected to the Lebec County Water District system—without notification to the public or vote by the LCWD board—the Department of Fish and Game finally received French’s “Notification of Lake or Streambed Alteration.”
So, on January 18, 2011, the DFG’s Jeffrey Single provided French with a draft of the Streambed Alteration Agreement that said: “Within 30 days of receipt of this draft agreement, you must notify the department in writing whether the measures to protect fish and wildlife resources are acceptable.”
Notice of Exemption
Then, on February 10, 2011, Single wrote to French: “Before the department may issue an agreement, it must comply with the California Environmental Quality Act (CEQA). In this case, the department, acting as a responsible agency, determined that your project is exempt from CEQA and will file a Notice of Exemption (NOE).
“Under CEQA, filing a Notice of Exemption starts a 35- day period within which “a party” [meaning a member of the public, or a group—Editor] may challenge the filing agency’s approval of the project.
“You may begin your project before the 35-day period expires if you have obtained all necessary local, state and federal permits or other authorizations. However, if you elect to do so, it will be at your own risk.”
By the time this was written, French’s project had already been in the ground for over a year and was already supplying the Holiday Inn Express with a back-up water reserve.
The public was not actually told that the 35-day notification period had begun, or that it could challenge the Department of Fish and Game’s approval of the project. The notice was filed in Sacramento, apparently with no local notification from either DFG or the developer.
‘Put This Behind Us’
Lebec County Water District (LCWD) board members scheduled a “discussion and appropriate action” on their agenda for their Monday, March 5 meeting. They are currently considering whether to accept legal ownership of the 12-inch water line. Developers Jeff French and Emilie Wainright offered the district an easement. If LCWD accepts the line, liability for problems would be assumed by the district. Board President Delbert Clowes suggested they “put this behind us” and vote. But the board tabled the issue for more research.
EDITORIAL BY THE MOUNTAIN ENTERPRISE
March 9, 2012
A developer and a state agency have waved a magic pen to say “everything is okay,” after state laws were broken to hurry along excavation through a blue line creek. The construction of Lebec’s famous “12-inch line” was done without permits and without public notification. Its connection to the Lebec County Water District system was done without legal notice to the elected LCWD board or mention on a public meeting agenda.
The construction was accomplished with misrepresentations and defiance of environmental requirements. This should be a red flag to everyone who lives in Lebec as the same pipeline is now on the agenda for a new board to adopt—apparently without investigation as to future liability.
First, the letter from Department of Fish and Game (DFG) states that the public is entitled to a 35-day period in which it could challenge DFG’s approval of the project. But DFG denied that opportunity to the public.
Second, what exactly is under Cuddy Creek? Checking to verify what is under the ground is necessary. The description given to DFG personnel about “a pipe encased in concrete” buried under Cuddy Creek is not what is shown in “as built” blueprints given to DFG by Jeff French, and now provided to The Mountain Enterprise. The plans do not mention a concrete casing, or the 8-foot depth that the DFG was told were used. There are no photos to document the depth or concrete casing.
Two members of the board, Bruce Koch and Bob Karr, acted individually without notifying the public or other members of the board. Both then resigned and DFG has not bothered to verify what was built.
Lebec County Water District should require an excavation to verify what was buried under the creek. LCWD should do that due diligence before signing any documents accepting responsibility and liability for the structure. Hopefully, such an inspection will reveal a line well built, encased in concrete and buried 5 to 8 feet below the surface.
This is part of the March 23, 2012 online edition of The Mountain Enterprise.
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