The Santa Clara Valley Water District is in the midst of an
effort to update the state law that created the agency, but critics
say the changes won’t do enough to comply with state law.
The Santa Clara Valley Water District is in the midst of an effort to update the state law that created the agency, but critics say the changes won’t do enough to comply with state law.
Significant differences between the proposed law and the existing one, known as the Santa Clara Valley Water District Act, include more authorized uses of groundwater charge revenues, updated language and procedures to address the demands of climate change, and what one critic described as an overall expansion of the water district’s purview.
A staff report submitted with the new District Act draft says one purpose of the proposal is to “strengthen local control of water resources within the county.” Other stated reasons to revise the District Act include to add accountability and transparency to the agency, clarify language, and to modernize the act.
The water district’s board of directors approved the draft in December 2008, and staff presented it again at an Oct. 27 board meeting to solicit updates before it is submitted for approval by the state legislature. That meeting was a few months after a Superior Court judge ruled that the agency violated the existing District Act by spending groundwater charge revenues it does not allow.
“The proposed new District Act is intended to greatly enhance the district’s powers over every issue related to water,” Great Oaks Water Co. General Counsel Tim Guster said. “And at the same time, it tries to reduce or eliminate the rights of well owners with respect to the water they’ve been pumping for decades.”
For example, he said one provision of the proposed update allows the agency to declare a privately owned well unfit for use if it has a negative impact on the overall water supply, and limit the well’s use. “The decision of what does and does not negatively affect water supply is a matter that’s totally in their discretion to decide (according to the proposed draft),” Guster said.
Furthermore, the section of the existing law that was one subject of a lawsuit filed by Great Oaks in 2005 and identifies allowable uses of groundwater charges, is expanded and broadened in the new draft. The new section adds expenses that provide “future benefit” for the district. The existing law does not specify such a use.
“This allows for proactive use planning to ensure ample groundwater supply in the future, rather than only looking backward towards past usage,” water district spokeswoman Susan Siravo said.
Director Rosemary Kamei said the board has wanted to update the language to do more for groundwater protection for quite some time now.
Great Oaks, a company that serves about 100,000 customers in south San Jose, was the plaintiff whose lawsuit resulted in the court ruling, which also declared groundwater charges violate Proposition 218 of the state Constitution. In November, Superior Court Judge Kevin Murphy ruled the water district must pay Great Oaks a full refund of groundwater charges paid in 2005-2006 – about $4.6 million.
Water district staff did not say the District Act redraft is a response to the judge’s ruling, which they disagree with and will likely appeal. A brief section in the new proposal, which is not found in the existing law, says the water district will comply with Proposition 218 “prior to imposing or increasing any fee for property-related services.”
One way the new draft District Act improves accountability is by allowing voters to submit a petition to create new water extraction zones. The new law would consider creating such zones if at least 10 percent of registered voters within the proposed zone signed the petition.
It also clarifies the process by which groundwater charges are set, setting timelines for public hearings and the mailing of public notices.
Also, Siravo noted that the new provision allowing “reasonable regulations” to close or limit the use of a private well would require public notice and a public hearing before such limitations are enacted. A justifiable reason to limit a well’s use in this way could be if over-pumping threatened sinkholes to occur on nearby properties.
Last week, the water district mailed a groundwater charge “Frequently Asked Questions” sheet to about 1,500 well owners, according to Siravo. The brochure was sent to those customers who received a bi-annual statement of water use – mostly large-scale and agricultural users. It contains information on what groundwater charges pay for, where groundwater comes from, and the importance of the water district’s groundwater basin recharge activities.
“We don’t receive enough local rainfall to provide water for all of South County,” Siravo said. “Therefore, the district’s recharge program ensures there will be water for well owners to pump.”
A sentence on the pamphlet says, “A recent court decision regarding groundwater charges does not impact your current statement or the amount you owe.”
But critics say the water district has to do more to comply with Proposition 218, passed by the voters in 1996 as the “Right to Vote on Taxes Act.”
“Proposition 218 requires a majority vote of affected property owners, or a two-thirds vote of the entire electorate for approval of the groundwater charge,” Guster said.
The city of Morgan Hill has also objected to groundwater charges for several years based on Proposition 218 violations. Last year, the city paid about $2.2 million in groundwater charges to the water district.
As a public agency, the city is required to issue “Proposition 218 notices” to all residents who will be affected by a proposed hike in taxes or property-related fees, according to City Manager Ed Tewes. The last time the city mailed such notices was at the end of 2007, when it raised its water rates for approximately 12,000 customers, Tewes said.
The two-page letter was clearly titled a “Proposition 218 notification.” It explained the reason for the proposed rate increase, the amount of the hike, and how customers can protest the increase in writing.
The letter says that property-related fees such as retail water charges are subject to “majority protest” under Proposition 218, and if more than half of property owners affected by the change object in writing the new fees cannot be imposed.
The water district does not distribute such notices, but it should in order to comply with Proposition 218, Tewes said. The water district also must stop subsidizing agricultural water users with higher rates for municipal users to achieve compliance. Or the agency could call a vote asking the voters if they approve such a subsidy, Tewes said.
Guster said Proposition 218 does not require notices to inform voters that they can protest. “But it’s smart,” Guster said.
Both Guster and Tewes said they have never received similar notices from the water district, and have never been formally notified whether or not they can protest the groundwater charges. They said they have only received letters telling them when the groundwater-setting process is to begin each year, and scheduling a public hearing to gather input on the annual proposed rates.
Siravo said the process for setting groundwater charges for 2010-2011 is “under development,” but she did not indicate if any significant changes are in the works.
