Sunday, December 28, 2014

Judge rules water rates are fair, legal

From page A1 | January 23, 2014 |

The city’s current and proposed rates to pay for Davis’ $106 million share of the surface water project are legal and fair to customers, Yolo Superior Court Judge Dan Maguire said in a tentative ruling issued Wednesday.

While not a final decision on the rates — that will come after a 15-day period for comments from the plaintiffs and the city — it represents a strong indication of where the judge is leaning and who needs to do the work to change his mind, if it changes. Other sections of the lawsuit will be decided this spring, but the judge addressed the central questions in Wednesday’s ruling.

Michael Harrington, who represents the plaintiffs, Yolo Ratepayers for Affordable Public Utility Services and John Munn, said the group was disappointed with the ruling so far, but appreciated the hard work the court and staff put into it.

“The city attorney also did a good job in trying the case,” Harrington wrote in an email. “Plaintiffs will reserve further comments until after the court issues its final decision after the 15-day comment period.”

City Council members expressed satisfaction with the tentative ruling.

“It is now time for our community to move past the continued attempts to derail this critical project, and on to the important work of bringing a sustainable supply of clean water to Davis,” Councilman Dan Wolk wrote in an email. “We will continue to collaborate with our partners on making sure the project is built on time, on budget and with as much outside funding as possible to minimize the impact to ratepayers.”

Mayor Joe Krovoza emphasized his view of the water project as an essential, smart upgrade to the city’s water system, even in drought.

“Our City Council — acting on the dedicated work of our Water Advisory Committee — took great care to make sure our new rate structures would be in full compliance with the law,” Krovoza said. “The court’s decision affirms our careful work. This means our joint project with Woodland will proceed to bring Davis a clean, environmentally sound and fiscally responsible long-term surface water supply.

“As we find ourselves in a significant drought, Davis’ ratepayers should be pleased that they acted to increase their water supply options,” Krovoza continued. “When the project comes online in mid-2016, we will have the ability to use surface water that can be supplemented by groundwater. That will be a great asset for our system’s reliability.”

In his tentative ruling, Maguire said the city’s consumption-based fixed rate model — through which users will be charged a base rate calculated on how much water they used the year before — is proportional.

Under Proposition 218, the charge to any parcel or person must not be out of proportion to the cost of the service to that parcel. That seems to indicate a gallon-by-gallon approach.

However, Maguire disregarded a literal interpretation of the language in the proposition, favoring, as is safe for trial court judges to do, the rulings of the state appellate court system.

In Griffith vs. Pajaro Water Management Agency and other similar cases, Maguire found rulings that took into account the needs for ratepayers to pay the cost of the capacity of the system “measured collectively, considering all ratepayers.”

That seems to indicate the city’s base fixed charges are proportional, if they pay for the upkeep of the system. More so, it indicates the city’s current water rates, drafted by consultants Bartle Wells Associates, are also proportional, as the judge tentatively ruled.

At a December hearing, opponents argued that basing rates on water hookup sizes is unfair, because building contractors installed the hookup sizes at random while Davis’ housing stock was being built. The city that argued that homeowners could simply change the size of their hookup if need be.

The current rates run to the heart of the opposition’s case, because they argued that customers with larger hookups did not necessarily use more water. However, studies Maguire looked at showed the opposite, and under his tentative definition of proportional use — defined by appellate cases — he found the Bartle Wells rates were sound.

Another issue was the tiered structure of the rates. The Griffith case, Maguire wrote, allows the city to place users into different groups and then allocate costs to them “proportionally.”

Opponents also argued that the city did not have appropriate waste water meters to measure the pricing for sewer rates. Maguire discounted this idea in his ruling, saying Proposition 218 had no such language requiring the city to charge for and buy that level specificity to ensure proportionality.

In all, the tentative decision puts added pressure on opponents to be successful with an anticipated initiative on the city’s water rates, if a tripling of the costs to average Davisites are to be avoided.

The city, meantime, sticks by its position that the passage of Measure I last March by Davis voters gave the green light to the surface water project as well as a thorough Proposition 218 process to construct the new rates.

— Reach Dave Ryan at or 530-747-8057. Follow him on twitter at @davewritesnews




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