March 25, 2010

Water controversy in Santa Clara County

By Water controversy in Santa Clara County

Author:  Damien M. Schiff

Today's San Jose Mercury News has this excellent piece recapping an ongoing controversy concerning "groundwater recharge fees" imposed by the Santa Clara Valley Water District on well owners in the District.  The basic controversy is this.  The Water District contends that well owners, by extracting water from their wells, cause a draw down on the Water District's own groundwater supplies, and that, to make up for this drawdown, it's necessary to charge these other well owners a fee.  The idea seems reasonable, at least until you delve a little deeper into how these fees are charged.  California's constitution (specifically Article XIII D, commonly known as Proposition 218) sets forth the precise mechanism whereby a local government may charge "fees" and "assessments" against property owners.  Under Prop 218, a local government like the Water District must first establish an assessment district and hold a vote among those to be assessed with the fees, before these fees can go into effect.

Well, the Water District has been charging these fees for years, but hasn't gone through (until arguably now) any of the steps required by Prop 218.  Consequently, one of the larger water users in the District successfully sued in superior court, obtaining a judgment that the fees violated Prop 218.  That case is now in the early stages of appeal.  In the meantime, I sent a letter to the Water District urging the agency to stop charging these unconstitutional fees against other well owners in the District.  The agency recently sent me this response.  This case promises to be a leading one for Prop 218 jurisprudence in this state.

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