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October 16, 2021

Water district: Protest or hydrate

Well owners can formally object to next year’s groundwater
charges, but the agency that sets the fees warns that if a majority
protest is successful it will have to significantly cut back on
services that keep the groundwater basin full and provide imported
Well owners can formally object to next year’s groundwater charges, but the agency that sets the fees warns that if a majority protest is successful it will have to significantly cut back on services that keep the groundwater basin full and provide imported water.

The Santa Clara Valley Water District will begin sending out public notices to well owners, outlining the protest process, Feb. 26. The water district’s board of directors last week approved a resolution explaining the reason for the procedure, and listing the rules to submit an acceptable protest.

A successful majority protest by well owners in southern Santa Clara County would mean no groundwater charges will be imposed throughout the fiscal year that starts July 1. But it could also mean no more drinking water or farm water from local aquifers.

At $275 per acre foot for municipal users, the groundwater charges annually make up about 80 percent of the water district’s $9 million operating budget for services provided in South County, according to Keith Whitman, water supply manager for the district. Among those services are recharging the groundwater basin in order to meet local demand and the purchase of imported water – South County’s entire source of drinking water.

“We would interpret (a majority protest) as, they don’t want to pay the charge that supports all those capital projects,” Whitman said. “We’d have no choice but to respond and reduce those programs accordingly. It would be difficult even maintaining our dams and reservoirs.”

He added that if the water district were to stop recharging the groundwater basin, it would go into “overdraft,” meaning that more water would be removed from underground than would seep back in – even if rainfall returns to normal levels next year. Overdrafting for an extended period of time could cause wells to dry up. And it could cause sinkholes on the ground surface, as happened when development in northern Santa Clara County began in the 1920s and no recharge services were available.

A majority protest option in response to any taxpayer-funded expense has always been available in the District Act, a state law that created the agency. However, the water district opted to actively publicize the process for the first time this year.

That’s because of a Santa Clara County Superior Court ruling last year that says the groundwater charges, and the process by which they are set, are in violation of the District Act and Proposition 218. The judge’s ruling in that case, filed by Great Oaks Water Co. of San Jose, said the charges are illegal because they have never been secured by the voters, and the agency has used revenues from the charges for unauthorized expenses.

The water district’s clarification and publication of the Proposition 218 protest procedure this year is an effort to be more transparent with the taxpayers, though the directors disagree with the local court ruling and plan to appeal it.

Well owners in South County include the city of Morgan Hill, which pumps water out of the continually recharged aquifer to serve its 12,000 customers. City Manager Ed Tewes said he does not yet know if the city will protest the charges.

“We’re trying to find out more about the charges before we conclude whether we will protest them,” Tewes said.

San Martin resident Bob Cerruti said he plans to submit a protest, and he has talked to a number of other well owners who plan to do the same. Though this is the first year he knew he could protest, Cerruti has said for several years that the groundwater charges are illegal and exorbitant.

“The water district has grossly violated the District Act over the last decade,” he said.

Section 26 of the act lists four areas in which the agency may spend money gathered from groundwater charges, though they have routinely spent the revenues on unauthorized expenses, according to Cerruti. These include the construction of a solar power system at the water district’s headquarters in San Jose. And according to the ruling in the Great Oaks lawsuit, the water district has also violated the District Act by overcharging for employees’ salaries, cost of equipment and imported water purchases. In November 2009, Judge Kevin Murphy declared – after a trial – that Great Oaks, a water retailer, was overcharged by about $1.3 million in groundwater charges in 2005-2006. The company paid about $4.6 million to the water district that year – all of which the judge ordered refunded.

The majority protest resolution assures that notices announcing the procedure will be mailed to well owners at least 45 days before the annual public hearing to set groundwater charges. Each protest must be written and signed, and no protests via electronic communication such as e-mail will be accepted.

The board of directors is currently scheduled to set groundwater charges at a public hearing no later than April 27. The charges have to be set – or rejected if there is a majority protest – before June 30, the end of the current fiscal year.

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