Media Corner

Whittier Daily News
June 6, 2011

Judge rules WRD’s rate-setting procedures violate state Constitution

Mike Sprague, Staff Writer

LOS ANGELES - A Los Angeles Superior Court judge Monday ruled that a regional water agency violated the state Constitution when it didn't follow its procedural requirements for an assessment on pumping from the underground water basin.

Judge James C. Chalfant ruled that Proposition 218 - approved by voters in November 1996 - applies to the Water Replenishment District of Southern California.

As such the district was required to mail written notices of rate increases 45 days before the action. Should written protests be made by a majority of those affected, the charge couldn't be imposed.

"The fee charged is imposed as an incident of property ownership and thus subject to the requirements of (Proposition 218)," Chalfant said.

The $205 per acre foot fee is paid by water utilities in a 420-square-mile area of southern Los Angeles County, including the entire Whittier area, that serves four million residents.

The money is used to purchase water to recharge the underground basin.

An acre foot, 326,000 gallons, can be visualized as a football field one-foot deep in water or the amount of water used in a year by an average family of five.

The cities of Cerritos, Downey and Signal Hill in August 2010 sued the replenishment district, saying no cost-benefit study has ever been done and that other procedural requirements haven't been completed.

Patricia Quilizapa, attorney for the cities, said she's not certain what will happen next. But the next step is likely to be a trial to determine damages and the actual effect of the ruling.

Robb Whittaker, general manager for the replenishment district, said he couldn't comment until the district's attorneys review Chalfant's ruling.

John Harris, the district's attorney, said Proposition 218 requirements should only apply in cases of property ownership.

In this case, the cities, which sued, aren't property owners, Harris said.

"The Water Replenishment District doesn't impose a fee on parcels," Harris said.

"In this case, there's no assessment on parcels," he said. "It's an assessment on the extraction of water."

But Chalfant said owning water rights is like being a property owner and thus the issue is subject to Proposition 218 requirements.

"Real property includes holding of water and mineral rights," he said. "Extraction of water is intimately connected with property ownership."

Harris argued that the cities and others with rights don't own the water.

"They just have a right to extract it," he said.

Chalfant responded that these rights can be sold and thus obviously owned.

The three cities' lawsuit also contends the district's reserve is at $51 million, much higher than the $10 million limit the state Legislature put into place in 2000.

Whittaker has stated the reserve is about $35 million and the money is set aside for future water purchases and capital improvements, something state laws allows. The actual reserve is less than $10 million, he added.