HomeMy WebLinkAbout2016-08-29 - Citizens Advisory Committee Meeting Agenda Packet
AGENDA
YORBA LINDA WATER DISTRICT
CITIZENS ADVISORY COMMITTEE MEETING
Monday, August 29, 2016, 8:30 AM
1717 E Miraloma Ave, Placentia CA 92870
1. CALL TO ORDER
2. ROLL CALL
COMMITTEE MEMBERS
Lindon Baker
Carl Boznanski
Rick Buck
Bill Guse
Fred Hebein
Joe Holdren
Modesto Llanos
Cheryl Borden
3. PUBLIC COMMENTS
Any individual wishing to address the committee is requested to identify themselves and state the matter on
which they wish to comment. If the matter is on this agenda, the committee Chair will recognize the individual for
their comment when the item is considered. No action will be taken on matters not listed on this agenda.
Comments are limited to matters of public interest and matters within the jurisdiction of the Water District.
Comments are limited to three minutes.
4. DISCUSSION ITEMS
This portion of the agenda is for matters such as technical presentations, drafts of proposed policies, or similar
items for which staff is seeking the advice and counsel of the Committee members. This portion of the agenda
may also include items for information only.
4.1. Status of Pending Litigation
4.2. Conservation Update and Monthly Water Supply Report
4.3. Director's Report
4.4. Future Agenda Items
5. ADJOURNMENT
5.1. The next Citizens Advisory Committee meeting is scheduled to be held
Monday, September 26, 2016 at 8:30 a.m.
Items Distributed to the Committee Less Than 72 Hours Prior to the Meeting
Pursuant to Government Code section 54957.5, non-exempt public records that relate to open session agenda items
and are distributed to a majority of the Committee less than seventy-two (72) hours prior to the meeting will be available
for public inspection in the lobby of the District’s business office located at 1717 E. Miraloma Avenue, Placentia, CA
92870, during regular business hours. When practical, these public records will also be made available on the District’s
internet website accessible at http://www.ylwd.com/.
Accommodations for the Disabled
Any person may make a request for a disability-related modification or accommodation needed for that person to be
able to participate in the public meeting by telephoning the Executive Secretary at 714-701-3020, or writing to Yorba
Linda Water District, P.O. Box 309, Yorba Linda, CA 92885-0309. Requests must specify the nature of the disability and
the type of accommodation requested. A telephone number or other contact information should be included so the
District staff may discuss appropriate arrangements. Persons requesting a disability-related accommodation should
make the request with adequate time before the meeting for the District to provide the requested accommodation.
ITEM NO. 4.1
AGENDA REPORT
Meeting Date: August 29, 2016
To:Citizens Advisory Committee
From:Marc Marcantonio, General
Manager
Subject:Status of Pending Litigation
SUMMARY:
In a case of statewide interest, an Orange County Superior Court Judge has ruled in favor of Yorba
Linda Water District in the case filed against the District in January. Not only did the Honorable
Judge Robert J. Moss rule that the District was lawful in rejecting the referendum, but the Judge
also acknowledged the declared state of emergency and the effects of the unprecedented state
mandated water rationing on the District.
Judge Moss wrote in his ruling:
Resolution 15-22 was passed as an urgency measure enacted to avoid severe constraints on the
District's ability to meet its fixed financial obligations during the current severe drought. This finding,
coupled with the finding that the essential governmental function of providing safe, clean, potable
water might be impaired if the referendum is allowed to proceed, compel the court to deny the
petition.
The case was watched closely throughout the state as many water utilities are raising meter fees
due to state mandated water conservation due to the drought. The District received Amicus support
from more than a dozen agencies, including ACWA and MWDOC.
The Judge's order and the court reporter's transcripts are attached.
ATTACHMENTS:
Name:Description:Type:
Order.pdf Judge Moss Order Backup Material
JUL1116.PDF Court Transcript Backup Material
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE
Central Justice Center
700 W. Civic Center Drive
Santa Ana, CA 92702
SHORT TITLE: Ebinger vs. Yorba Linda Water District
CLERK'S CERTIFICATE OF MAILING/ELECTRONIC
SERVICE
CASE NUMBER:
30-2016-00829548-CU-JR-CJC
I certify that I am not a party to this cause. I certify that the following document(s), Minute Order dated 07/25/16, have
been transmitted electronically by Orange County Superior Court at Santa Ana, CA. The transmission originated from
email address on July 25, 2016, at 11:41:39 AM PDT. The electronically transmitted document(s) is in accordance with rule
2.251 of the California Rules of Court, addressed as shown above. The list of electronically served recipients are listed
below:
Clerk of the Court, by: , Deputy
BELL, MCANDREWS & HILTACHK, LLP
BHILDRETH@BMHLAW.COM
KIDMAN LAW LLP
SGUESS@KIDMANLAW.COM
CLERK'S CERTIFICATE OF MAILING/ELECTRONIC SERVICE
V3 1013a (June 2004) Code of Civ. Procedure , § CCP1013(a)
123
3333333432323339338337336335334332188288108261133237237238240241241243250257566663035340000000634000021133400002114340000211534000021164000021903400002006340000200734000020083400002009
SUPERIOR COURT OF CALIFORNIA,
MINUTE ORDER
TIME: 11:26:00 AM
JUDICIAL OFFICER PRESIDING: Supervising Judge Robert J. Moss
COUNTY OF ORANGE
CENTRAL JUSTICE CENTER
DATE: 07/25/2016 DEPT: C14
CLERK: Betsy Zuanich
REPORTER/ERM: None
BAILIFF/COURT ATTENDANT: None
CASE INIT.DATE: 01/12/2016CASENO:30-2016-00829548-CU-JR-CJC
CASE TITLE:Ebinger vs.Yorba Linda Water District
CASE CATEGORY: Civil - Unlimited CASE TYPE: Judicial Review - Other
EVENT ID/DOCUMENT ID: 72415501
EVENT TYPE:Chambers Work
STOLOAPPEARANCESSTOLO
Stolo
There are no appearances by any party.
This Petition for Writ of Mandate came on for hearing on July 11, 2016.
Having considered the petition and the argument of counsel,the court now issues its decision as follows:
Writ denied.
All requests for judicial notice are granted.The court has reviewed and considered all of the amicus
letters submitted and overrules the objections thereto.
FACTS: The facts are not in dispute.
On September 17,2015,the Yorba Linda Water District (hereafter "the District")passed Resolution
15-22 raising water rates for ratepayers in the District.Thereafter,petitioners circulated a referendum
petition demanding that Resolution 15-22 be reconsidered by the District and repealed or placed on the
ballot for the next regular election.The petition,with the requisite number of signatures,was submitted
on October 14,2015.The District declined to either repeal Resolution 15-22 or place the issue on the
ballot for approval by the voters.Petitioner has filed this petition for writ of mandate asking the court to
order the District to either repeal the rate increase or put it on the ballot for voter approval.
The consequences of granting this petition would be serious.The prolonged drought has resulted in
severe water shortages in California.On January 17,2014,the Governor of California declared a state
of emergency as a result of the statewide drought.The California State Water Resources Control Board
imposed an unprecedented water rationing plan which mandated a 36%reduction in water consumption
on ratepayers in the District.As a result of the severe water rationing,the District's revenue from water
MINUTE ORDER DATE: 07/25/2016 Page 1
DEPT: C14 Calendar No.
CASE TITLE: Ebinger vs. Yorba Linda Water District CASE NO:30-2016-00829548-CU-JR-CJC
sales sharply declined.At the same time,the District's operating expenses were largely fixed.Without
an increase in rates,the District faced an $8 million shortfall in fiscal year 2016 and defaulting on debt
obligations.
If the petition is granted,Resolution 15-22 would be ineffective unless and until it is approved by a
majority of the voters in the next election.The District would be compelled to refund the revenues it has
enjoyed since the passage of the resolution and may be unable to meet its existing obligation to provide
safe, clean, potable water to the citizens of Yorba Linda.
DISCUSSION:The District is a "county water district"formed and existing under the authority of the
County Water District Act.Water Code §30000 et seq.The District is entitled under that act to make
legislative enactments as it did in the passage of Resolution 15-22.
Under California Constitution Art.II,Section 9 voters have the power to approve or reject statutes
passed by a legislative body through the use of the referendum process.Under California Constitution,
Art.11,Section 9,this right is extended to local jurisdictions.See,generally,Lindelli v Town of San
Anselmo (2003)111 Cal.App.4th 1099 at p.1108.
Water Code §30831 makes it clear that ordinances passed by a county water district are subject to the
referendum process.
While voters have a right to challenge legislative enactments through the referendum process,that right
is not unlimited.California Constitution,Art.II,§9 specifically precludes certain types of legislative
enactments from the referendum process.Namely,statutes that are urgency statutes,call for elections,
provide tax levies,or appropriations for usual and current expenses of the State.Also,while the
referendum provisions of the California Constitution are generally to be liberally construed in favor of the
power reserved to the voters,consideration must also be given to the consequences of applying the
rule,and if essential governmental functions would be seriously impaired by the referendum process,the
courts should assume in considering the applicable constitutional and statutory provisions that no such
result was intended.Geiger v Board of Supervisors (1957)48 Cal.2d 832.
Here the District argues that Resolution 15-22 was both a tax levy and an urgency measure enacted to
respond to the record drought conditions currently existing in California,and thus is not subject to the
referendum process.While the court does not agree with respondent that raising of water rates is the
equivalent of a tax levy,it is persuaded that Resolution 15-22 was passed as an urgency measure
enacted to avoid severe constraints on the District's ability to meet its fixed financial obligations during
the current severe drought.This finding,coupled with the finding that the essential governmental
function of providing safe,clean,potable water might be impaired if the referendum is allowed to
proceed, compel the court to deny the petition.
As the matter took less than eight hours and no request for statement of decision was made before the
matter was submitted, no statement of decision is required.
Respondent to prepare the order.
Clerk to give notice by e-Service.
STOLO
MINUTE ORDER DATE: 07/25/2016 Page 2
DEPT: C14 Calendar No.
MINUTE ORDER DATE: 07/25/2016 Page 2
DEPT: C14 Calendar No.
1
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
3 DEPARTMENT C14
4
5 KENT EBINGER, AN INDIVIDUAL; ) TRANSCRIPT OF
AND YORBA LINDA TAXPAYERS ) PROCEEDINGS
6 ASSOCIATION, A CALFORNIA )
MUTUAL BENEFIT CORPORATION, )
7 PETITIONERS, )
8 VS . ) HON.
ROBERT J. MOSS
9 YORBA LINDA WATER DISTRICT, A ) JUDGE
PUBLIC ENTITY; YORBA LINDA )
10 WATER DISTRICT BOARD OF ) CASE NO.
DIRECTORS IN THEIR RESPECTIVE ) 30-2016-00829548-CU-JR-CJC
11 OFFICIAL CAPACITIES; AND DOES )
I-X, INCLUSIVE, )
12 RESPONDENTS . )
13
14 JULY 11, 2016
15
16
17 APPEARANCES OF COUNSEL:
18 FOR THE PETITIONERS :
BRIAN T . HILDRETH,
19 ATTORNEY AT LAW
20 FOR THE RESPONDENTS :
STEVEN R. GUESS AND ANDREW B. GAGEN, AND ARTHUR G. KIDMAN,
21 ATTORNEYS AT LAW
22
23
24 JESSICA DAVIS, CSR 12646
REPORTER PRO TEMPORE
25
26
JESSICA DAVIS, CSR 12646
2
1 SANTA ANA, CALIFORNIA - MONDAY, JULY 11, 2016
2 MORNING SESSION
3 (PROCEEDINGS IN OPEN COURT : )
4
5 THE COURT : WE 'RE BACK ON THE RECORD IN EBINGER VS .
6 YORBA LINDA WATER DISTRICT .
7 WOULD YOU WISH TO MAKE AN OPENING STATEMENT?
8 MR. HILDRETH: YES, YOUR HONOR. THANK YOU. AS A
9 THRESHOLD ISSUE, I WAS REVIEWING THE COURT' S ONLINE DOCKET
10 LAST NIGHT AND IT OCCURRED TO ME THAT THERE IS NO VERIFIED
11 ANSWER OR RETURN ON FILE IN THIS CASE. THE FOURTH DISTRICT
12 COURT OF APPEAL HAS SAID THAT THE FAILURE TO SUBMIT A RETURN
13 WITH A VERIFIED ANSWER IS NOT A TECHNICALITY, BUT IT AN
14 INTEGRAL AND CRITICAL STEP IN THE PROCEDURE FOR DETERMINING
15 THE MERIT OF A PETITION FOR WRIT OF MANDATE . CCP SECTION 1094
16 SAYS THAT IF NO RETURN BE MADE, THE CASE MAY BE HEARD ON THE
17 PAPERS OF THE APPLICANT . THE FIRST CASE -- I 'M SORRY, YOUR
18 HONOR -- IS BANK OF AMERICA VS . SUPERIOR COURT OF ORANGE
19 COUNTY, 2013 212 CAL.APP. 4TH 1076 AT 1085 . THE APPELLATE
20 COURT IN A CASE CALLED DEPRETTO VS . SUPERIOR COURT -- IT' S
21 1981 CASE 116 CAL.APP. 3RD 36 AT PAGE 39 -- IT SAYS ALTHOUGH
22 THE RESPONDENT AND REAL PARTIES IN INTEREST WERE SERVED WITH
23 COPIES OF THE PETITION, NO RETURN WAS MADE . PETITIONERS
24 ENTITLEMENT TO RELIEF CONSEQUENTLY DEPENDS ON THE VERIFIED
25 PAPERS OF THE APPLICANT . THE COURT OF APPEAL HAS ALSO HELD
26 THAT A MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO A
JESSICA DAVIS, CSR 12646
3
1 PETITION DOES NOT OPERATE AS A DEMURRER OR A VERIFIED ANSWER,
2 DOES NOT CONSTITUTE A, QUOTE, "RETURN" AND DOES NOT
3 EFFECTIVELY DENY ANY OF THE ALLEGATIONS IN THE PETITION.
4 THAT ' S A CITATION FROM SCHAFFER VS . SUPERIOR COURT, 1985 AT 33
5 CAL.APP. 4TH 993 AT PAGE 996, FOOTNOTE 2 . PRACTICE GUIDES,
6 INCLUDING THE CALIFORNIA PRACTICE GUIDE FOR CIVIL APPEALS AND
7 WRITS, PART OF THE RUTTER GROUP, SAYS : "AN ATTEMPTED RESPONSE
8 THAT FAILS SHORT OF A DEMURRER OR VERIFIED ANSWER AS REQUIRED
9 BY THE RULES OF COURT; FOR EXAMPLE, A DOCUMENT CONSISTING ONLY
10 OF THE DISCUSSION OF POINTS AND AUTHORITIES, IS NOT A RETURN
11 AND IS NOT EFFECTIVE TO DENY THE FACTS ALLEGED IN THE WRIT
12 PETITION. " FINALLY, DESPITE SECTION 1094 REFERENCE TO A
13 HEARING, IN WHICH IT SAYS -- IN THAT SECTION IT SAYS "MAY BE
14 HEARD, " THE CALIFORNIA SUPREME COURT HAS STATED EXPRESSLY THAT
15 A RESPONDENT MAINTAINS NO RIGHT TO ORAL ARGUMENT WHERE THE
16 RESPONDENT HAS FAILED TO FILE A VERIFIED RETURN. I 'M GOING TO
17 READ A BLOCKED QUOTE FROM THAT SUPREME COURT CASE . IT ' S LEWIS
18 VS . SUPERIOR COURT, 1999 19 CAL 4TH 1232 AT PAGES 1250 TO
19 1251 . I 'M GOING TO TRY TO READ THIS SLOW BECAUSE JESSICA IS
20 HERE DOING HER BEST . "SIMILARLY SECTION 1094 STATEMENT THAT
21 IF NO RETURN IS FILED THE CASE MAY BE HEARD ON THE PAPERS OF
22 THE APPLICANT REASONABLY IS CONSTRUED TO MEAN THAT THE COURT
23 MAY CONSIDER THE APPLICANT ' S PETITION AND DECIDE THE CASE UPON
24 THE BASIS OF THE SHOWING MADE THEREIN. THIS CONSTRUCTION OF
25 THESE PROVISIONS IS CONSISTENT WITH THE CONCLUSION IN NILES
26 VS . EDWARDS THAT THE TERM 'HEARD' MEANS THE CONSIDERATION AND
JESSICA DAVIS, CSR 12646
4
1 DETERMINATION OF A CASE AND DOES NOT REQUIRE INVARIABLY THE
2 PRESENTATION OF ORAL ARGUMENT . " THAT OPINION THEN SITES TO
3 THE CASE CALLED ELLERBROOK AND THE SUPREME COURT QUOTES FROM
4 THAT CASE . "THE ONLY PROHIBITED PROCEDURE UNDER SECTION 1088
5 AND 1094 IS AN ENTRY OF JUDGMENT BY DEFAULT FOR FAILURE TO
6 FILE ANY ANSWERING PLEADING. " IN OTHER WORDS, WRIT PETITIONS
7 AGAINST PUBLIC ENTITIES ARE NOT ALLOWED TO BE GIVEN BY
8 DEFAULT . IN ESSENCE THEY ARE IN DEFAULT FOR FAILING TO FILE A
9 VERIFIED RETURN OR VERIFIED ANSWER; HOWEVER, 1085 ET SEQ OF
10 THE CODE OF CIVIL PROCEDURE SAYS THAT IT HAS TO BE HEARD IN
11 SOME FASHION OR CONSIDERED BY THE COURT . THE ALLEGATION IS
12 MADE IN THE PETITION. THE ARGUMENT IS MADE IN THE PETITION.
13 HOWEVER, WHERE THE OTHER SIDE FAILS TO FILE A RETURN OR
14 VERIFIED ANSWER OR A DEMURRER THAT ' S BEEN VERIFIED, THE COURT
15 ONLY HAS TO CONSIDER AND IS EMPOWERED TO ONLY CONSIDER THE
16 PLEADINGS OF THE PETITIONERS AND NOT OF THE OPPOSITION. WHAT
17 WE HAVE HERE IS THIS CASE HAS BEEN ALIVE FOR SIX MONTHS . WE
18 HAVE HAD NUMEROUS HEARINGS . WE HAVE HAD SCHEDULING DATES . NO
19 RETURN HAS BEEN FILED. IF YOU LOOK AT THE CODE OF CIVIL
20 PROCEDURE, IT SUGGESTS THAT THEY HAVE 30 DAYS TO FILE IT.
21 WE 'VE GIVEN THEM EVERY BENEFIT OF THE DOUBT AND WAITED UNTIL
22 TODAY TO DECIDE TO SEE IF THEY'RE GOING TO FILE AN ANSWER.
23 AGAIN, AS I WAS LOOKING AT THE DOCKET LAST NIGHT, NO ANSWER ON
24 FILE . I THINK THAT IS A VERY SUBSTANTIAL PROBLEM ON THE PART
25 OF THE WATER DISTRICT, TO REFUSE TO FILE OR FAIL TO FILE THAT
26 VERIFIED RETURN. IT ' S QUASI JURISDICTIONAL. IT ' S THEIR
JESSICA DAVIS, CSR 12646
5
1 TICKET TO SIT AT THIS TABLE TODAY AND TO PRESENT ARGUMENT TO
2 YOU AND IT ' S THEIR TICKET TO PRESENT ARGUMENT TO YOU IN THEIR
3 PAPERS . IF WE WANT TO DISCUSS THAT ISSUE, WE CAN. I AM
4 PREPARED TO CONTINUE WITH MY LEGAL ARGUMENTS AS WELL ON THE
5 MERITS; BUT, IF WE WANT TO FIRST DISCUSS THIS FIRST OPENING
6 ISSUE, I 'M HAPPY TO DO THAT NOW.
7 THE COURT : I THINK WE SHOULD DO THAT NOW. WHAT IS
8 YOUR RESPONSE TO THAT?
9 MR. GUESS : A FEW ISSUES . FIRST AND FOREMOST, THIS
10 ISSUE IS SORT OF A TRIAL BY AMBUSH. WE 'VE BEEN IN THIS CASE
11 SINCE AT LEAST JANUARY. THEY HAVE NOT FILED ANY TYPE OF
12 NOTICE OF DEFAULT OR RAISED THIS ISSUE . THEY CITED A LITANY
13 OF CASES WHICH WE HAVE NOT SEEN. THE FACT MAINTAINS THAT NO
14 SUMMONS WAS EVER SERVED OR ISSUED IN THIS CASE. A SUMMONS IS
15 REQUIRED TO TRIGGER THE REQUIREMENT OF AN ANSWER. SINCE THEY
16 FAILED TO SEEK A SUMMONS AND FAILED TO SERVE A SUMMONS, ANSWER
17 IS NOT REQUIRED. FURTHERMORE, THE RESPONDENT ' S BRIEF, WHICH
18 WE HAVE FILED, FUNCTION AS THE LEGAL ARGUMENTS THAT WE HAVE
19 AGAINST THE UNDERLYING PETITION. AND GIVEN THE FACT THAT THEY
20 HAVE FAILED TO RAISE A NOTICE OF DEFAULT, FAILED TO RAISE THIS
21 AS AN ISSUE, THEY HAVE QUITE SIMPLY WAIVED THIS ISSUE AND IT
22 WOULD BE TOTALLY UNJUST, INEQUITABLE, AND IMPROPER TO RULE
23 AGAINST THE WATER DISTRICT BASED UPON AN ISSUE WHICH THEY
24 THOUGHT ABOUT, IN THEIR WORDS, "OVER THE WEEKEND" TO AMBUSH US
25 HERE . IT ' S GENERALLY CONSIDERED PROPER IN ALMOST ANY CASE
26 THAT WHERE COUNSEL OF RECORD IS KNOWN, IF YOU ARE GOING TO
JESSICA DAVIS, CSR 12646
6
1 SEEK TO ENTER DEFAULT AGAINST THEM IN SOME WAY, TO MEET AND
2 CONFER PRIOR TO SEEKING TO DO THAT . IN EFFECT THEY ARE
3 SEEKING TO ENTER OUR DEFAULT AT TRIAL WITHOUT AFFORDING US ANY
4 OPPORTUNITY TO RESPOND. THAT ' S NO. 1 . AND, NO. 2, IF FOR ANY
5 REASON THE COURT IS INCLINED TO CONSIDER THIS ISSUE, WE
6 CERTAINLY SEEK LEAVE TO FILE AN ANSWER. BUT, GIVEN THE FACT
7 THAT THIS IS A PETITION AND NOT A COMPLAINT, WE BELIEVE THAT
8 OUR RESPONDENT ' S PAPERS AND OUR RESPONDENT ' S BRIEFS ARE MORE
9 THAN SUFFICIENT AND CERTAINLY THE PROPER RESPONSE TO THIS
10 ISSUE IS NOT TO ORDER AN ISSUE TO BE PLACED ON A BALLOT WHICH
11 IS CLEARLY INVALID AS A MATTER OF LAW AND REQUIRES A REFUND OF
12 APPROXIMATELY $8, 000, 000 TO THE PUBLIC; THEREBY IMPAIRING
13 THE -- NOT ONLY AN ESSENTIAL GOVERNMENT SERVICE, WHICH IS THE
14 DELIVERY OF SAFE AND PORTABLE DRINKING WATER -- BUT AN
15 ESSENTIAL GOVERNMENT FUNCTION WHICH IS THE PROPER PHYSICAL
16 ADMINISTRATION OF OUR PUBLIC AGENCY. THANK YOU.
17 MR. HILDRETH: CCP SECTION 1085 ET SEQ PROVIDES THAT
18 A PERSONAL SERVICE OF A WRIT PETITION IS THE SERVICE OF A
19 SUMMONS . THERE IS AMPLE CASELAW ON THIS ISSUE OUT THERE THAT
20 THE PERSONAL SERVICE OF THE WRIT PETITION SUFFICES AND, IN
21 FACT, TAKES THE PLACE OF A SERVICE OF A SUMMONS . SECONDARILY,
22 IT ' S NOT OPPOSING COUNSEL' S JOB TO EDUCATE RESPONDENT ' S
23 COUNSEL' S JOB AS TO THEIR -- THEIR OBLIGATION -- THEIR VERY
24 BASIC AND FUNDAMENTAL OBLIGATION TO FILE A VERIFIED ANSWER IN
25 RESPONSE TO A VERIFIED PETITION FOR WRIT OF MANDATE. CCP
26 SECTION 1085 ET SEQ TS A VERY SHORT CHAPTER OF THE CODE OF
JESSICA DAVIS, CSR 12646
7
1 CIVIL PROCEDURE . IT COULD TAKE US 10 MINUTES TO READ IT AND
2 ALL THE RULES ARE LAID OUT THERE. I QUESTION THE RESPONSE
3 HERE ON SOME OF THESE ISSUES BECAUSE WE 'VE COMPLIED WITH
4 EVERY -- EVERY SECTION OF THAT CODE, THAT CHAPTER. THE
5 RESPONDENTS HAVE NOT . AND I THINK WE'RE AT A CROSSROADS OF A
6 FUNDAMENTAL THRESHOLD ISSUE WHERE THE COURT IS EMPOWERED
7 REALLY TO ONLY CONSIDER THE PAPERS OF THE PETITIONER AND TO
8 NOT HEAR ARGUMENT OR CONSIDER THE PAPERS OF RESPONDENT . THE
9 REASON WHY IT' S OKAY TO WAIT UNTIL TODAY IS THERE IS SOME
10 VAGUENESS IN THE CODE OF CIVIL PROCEDURE ABOUT WHEN A VERIFIED
11 RETURN IS REQUIRED. IF IT ' S NOT SET BY THE ALTERNATIVE WRIT,
12 WHICH THIS COURT SET BUT THERE WAS NOT A LINE ITEM IN THERE
13 ABOUT WHEN THE VERIFIED RETURN WAS TO BE FILED -- IF THEY HAD
14 FILED IT THIS MORNING, I WOULD NOT HAVE EVEN RAISED THIS
15 ISSUE . BUT IT ' S NOT PETITIONER' S JOB TO EDUCATE COUNSEL FOR
16 RESPONDENT ' S ABOUT WHAT THEIR OBLIGATION IS TO REALLY --
17 AGAIN, A VERY THRESHOLD ISSUE . GET A COMPLAINT IN THE MAIL,
18 FILE AN ANSWER TO THE COMPLAINT . THANK YOU, YOUR HONOR.
19 THE COURT : WELL, I 'VE CONSIDERED WHAT BOTH OF YOU
20 HAVE SAID AND IT SOUNDS TO ME LIKE THE COURT HAS DISCRETION TO
21 BASE ITS DECISION ON THE VERIFIED PETITION, RATHER THAN THE
22 PRESENTATION OF EVIDENCE . AND, IN LIGHT OF THE GRAVITY OF THE
23 ISSUE IN THIS CASE AND IN LIGHT OF THE BREVITY OF THE HEARING
24 THAT IS GOING TO TAKE PLACE, I 'M GOING TO EXERCISE THAT
25 DISCRETION AND NOT DECIDE THE CASE MERELY ON THE ALLEGATIONS
26 IN THE VERIFIED PETITION. WE 'RE GOING TO GO FORWARD WITH THE
JESSICA DAVIS, CSR 12646
8
1 HEARING. YOU CAN PRESENT THE REST OF YOUR OPENING STATEMENT,
2 IF YOU WISH.
3 MR. GUESS : THANK YOU, YOUR HONOR.
4 MR. HILDRETH: YOUR HONOR, WE 'RE HERE TO RESOLVE A
5 VERY STRAIGHTFORWARD ISSUE AND THAT IS DOES THE YORBA LINDA
6 WATER DISTRICT MAINTAIN A MINISTERIAL DUTY TO ACT UPON THE
7 DULY QUALIFIED REFERENDUM PETITION THAT HAS BEEN SUBMITTED BY
8 MY CLIENTS . THE POWER OF REFERENDUM IS ALMOST AS OLD AS THE
9 STATE ITSELF. IT IS ONE OF THE FUNDAMENTAL PRECEPTS OF OUR
10 RIGHT AS VOTERS TO SELF-GOVERN. IT ' S EMBODIED IN THE
11 CONSTITUTION, THE RIGHT TO REFERENDUM. IT' S CONSIDERED A
12 RIGHT THAT IS NOT AFFORDED TO VOTERS, BUT RESERVED BY THEM.
13 AND THE RESERVATION OF THAT RIGHT AND THE FACT THAT IT ' S
14 EMBODIED IN THE CONSTITUTION BEARS GREAT WEIGHT ON THIS ISSUE.
15 IN TERMS OF THE FACTS OF THIS CASE, THOSE ARE ALSO VERY
16 STRAIGHTFORWARD AND VIRTUALLY UNDISPUTED. MY CLIENTS
17 SUBMITTED IN RESPONSE TO AN ENACTED ORDINANCE BY THE WATER
18 DISTRICT A DULY QUALIFIED REFERENDUM PETITION. IT WAS TIMELY
19 SUBMITTED, IT WAS PROCEDURALLY PROPER, AND IT MAINTAINED THE
20 REQUISITE NUMBER OF SIGNATURES . IN FACT, MY CLIENTS COLLECTED
21 MORE THAN DOUBLE THE NUMBER OF SIGNATURES THAT WERE NEEDED TO
22 QUALIFY THE REFERENDUM ISSUE FOR THE BALLOT . IT ' S AN
23 IMPORTANT ISSUE . AND PEOPLE IN THE CITY AND THE WATER
24 DISTRICT OF THE YORBA LINDA WATER DISTRICT FEEL THE SAME, THAT
25 IT ' S IMPORTANT . AND THEY ONLY NEEDED UNDER THE ELECTIONS CODE
26 PROPONENTS OF A REFERENDUM ISSUE MEASURE HAVE 30 DAYS TO
JESSICA DAVIS, CSR 12646
9
1 COLLECT SIGNATURES . MY CLIENTS NEEDED LESS THAN TWO-THIRDS OF
2 THAT . SO IMPORTANT ISSUE IN THE JURISDICTION IN THE WATER
3 DISTRICT. ONCE A REFERENDUM PETITION HAS BEEN SUBMITTED TO
4 THE GOVERNING BODY, THEY HAVE TWO CHOICES UNDER THE ELECTIONS
5 CODE, SECTION 9145 . THEY CAN EITHER REPEAL THE ISSUE --
6 REPEAL THE LEGISLATIVE ENACTMENT IN ITS ENTIRETY OR SET IT FOR
7 ACTION BY THE VOTERS . HERE THE WATER DISTRICT HAS DONE
8 NEITHER AND, IN FACT, THEY'VE TAKEN A STEP TO FURTHER DENY MY
9 CLIENTS THE REFERENDUM RIGHT BY DOING NOTHING, BY HOLDING IT
10 IN ADVANCE, PUSHING IT INTO PURGATORY WHERE IT SITS AND WHERE
11 IT HAS SAT NOW FOR EIGHT MONTHS . IN OTHER CASES YOU SEE THAT
12 THE GOVERNING BODY SEEKS A JUDICIAL DECLARATION BY FILING A
13 COMPLAINT FOR DECLARATORY RELIEF ABOUT WHAT ARE OUR
14 OBLIGATIONS AND OUR RESPONSIBILITIES AND OUR RIGHTS BECAUSE WE
15 HAVE THIS IN OUR LAP. WE 'RE NOT SURE IT ' S RIGHT FOR THE
16 BALLOT . WE ARE NOT SURE IT' S RIGHT OR PROPER FOR THE
17 REFERENDUM POWER. SO, JUDGE, PLEASE TELL US WHAT WE CAN AND
18 CAN' T DO AND WHAT WE SHOULD AND SHOULDN' T DO WITH THIS . THE
19 WATER DISTRICT HERE HAS DONE NONE OF THAT. IN MISSION SPRINGS
20 AND IN BIGHORN WATER, TWO CASES THAT ARE RELIED UPON BY
21 RESPONDENTS, THAT' S EXACTLY WHAT HAPPENED. THE GOVERNING BODY
22 FILED A COMPLAINT FOR DECLARATORY RELIEF TO TRY AND DISCERN
23 WHAT ITS RIGHTS AND RESPONSIBILITIES ARE . A WRIT PETITION
24 CONVERSELY IS A VERY LIMITED ACTION. IT ' S LIMITED TO WHAT ARE
25 THE OBLIGATIONS? WHAT ARE THE MINISTERIAL OBLIGATIONS OF A
26 GOVERNING BODY ONCE IT HAS THIS DULY QUALIFIED REFERENDUM
JESSICA DAVIS, CSR 12646
10
1 PETITION? IT' S VERY CLEAR, SECTION 9145 OF THE ELECTIONS
2 CODE . REPEAL IT IN ITS ENTIRETY OR SET IT FOR ACTION BY THE
3 VOTERS . NOW, THE CONSTITUTION DOES LIMIT WHAT THINGS CAN AND
4 CAN' T BE -- WHAT ARE AND ARE NOT PROPER SUBJECTS FOR A
5 REFERENDA. AND THIS IS ARTICLE II, SECTION 9 . IT SAYS : "THE
6 REFERENDUM POWER OF THE ELECTORS TO A -- THE REFERENDUM IS THE
7 POWER OF THE ELECTORS TO APPROVE OR REJECT STATUTES, ACCEPT
8 URGENCY STATUTES, STATUTES CALLING ELECTIONS, AND STATUTES
9 PROVIDING FOR TAX LEVIES, OR PRORATIONS FOR USUAL EXPENSES OF
10 THE STATE . " THIS ENACTMENT BY THE WATER DISTRICT IS A RATE
11 INCREASE. IT' S NOT A TAX. AND I WILL CITE BACK TO THE COURT
12 A LINE FROM RESPONDENT' S OPPOSITION BRIEF. THIS IS ON PAGE 6
13 OF THEIR OPPOSITION. IN THE CONSTRUCTION OF A STATUTE OR
14 INSTRUMENT, THE OFFICE OF THE JUDGE IS TO SIMPLY ASCERTAIN AND
15 DECLARE WHAT IS IN TERMS OR IN SUBSTANCE CONTAINED THEREIN,
16 NOT TO INSERT WHAT HAS BEEN OMITTED OR TO OMIT WHAT HAS BEEN
17 INSERTED. IF YOU LOOK AT THE CASE OF ROSSI VS . BROWN WHICH IS
18 9 CAL 4TH 668, THIS IS A CASE THAT IS ALSO HEAVILY RELIED UPON
19 BY RESPONDENTS . THE COURT IN ITS OPENING COMMENT SAYS -- FOR
20 SOME COLOR ON ROSSI, ROSSI WAS TRYING TO -- ROSSI WAS
21 ATTEMPTING TO REPEAL A TAX MEASURE BY USING THE REFERENDUM
22 POWER. IN THE OPENING LINES OF ROSSI THE COURT SAYS THERE IS
23 NO EXPRESSED EXCLUSION OF TAX MEASURES FROM THE INITIATIVE
24 POWER. YOU COULD REWRITE THAT SENTENCE FOR THIS CASE
25 PRECISELY AND YOU WOULD WRITE IT AS THERE IS NO EXPRESSED
26 EXCLUSION OF RATE ORDINANCES FROM THE REFERENDUM POWER BECAUSE
JESSICA DAVIS, CSR 12646
11
1 THERE IS NOT . THERE ' S THREE THINGS THAT CAN' T BE
2 "REFERENDED" -- URGENCY STATUTES, STATUTES CALLING FOR
3 ELECTIONS, AND STATUTES RELATED TO TAXES . HERE THE ORDINANCE
4 THAT WAS ENACTED WAS A RATE INCREASE, NOT A TAX. AND HOW DO I
5 KNOW THAT? BECAUSE THAT ' S WHAT THE WATER DISTRICT CALLED IT .
6 THEY CALLED IT A RATE INCREASE TIME AND AGAIN. THEY EVEN WENT
7 ON RECORD ON A LIVE RADIO BROADCAST AND SAID "IT ' S NOT A TAX.
8 IT ' S NOT A TAX. IT ' S THE BASIC CHARGE FOR SERVICE . " THE
9 WATER RATE THAT IS IT AT ISSUE HERE WAS ENACTED PURSUANT TO
10 THE AUTHORITY AND THE WATER CODE SECTION 31007 WHICH CONCERNS,
11 QUOTE, "RATES AND CHARGES TO BE COLLECTED BY THE DISTRICT . "
12 SO WE KNOW IT' S A RATE INCREASE . WE KNOW IT ' S NOT A TAX
13 INCREASE BECAUSE SEVERAL SECTIONS OF THE WATER CODE LATER IT
14 PROVIDES THAT A DISTRICT MAY CAUSE TAXES TO BE LEVIED. 31650
15 OF THE WATER CODE. NOWHERE IN ANY OF THE DOCUMENTS THAT
16 SUPPORT THE ENACTMENT OF RESOLUTION 15-22 IS THERE A MENTION
17 OR A REFERENCE TO 31650 . IT ' S NOT A TAX INCREASE . HAD THE
18 WATER DISTRICT DECIDED TO PURSUE THIS AS A TAX INCREASE, WE
19 WOULDN' T BE HERE . WHY? BECAUSE MY CLIENTS WOULD HAVE CALLED
20 ME UP AND I WOULD HAVE SAID IT SAYS HERE YOU CAN' T "REFERENED"
21 A TAX INCREASE . BUT IT ' S NOT A TAX. IT WAS A RATE. IT WAS A
22 RATE INCREASE AND IT ' S THE PROPER SUBJECT OF A REFERENDUM.
23 NOW, WHY DOES THE WATER DISTRICT WANT -- THE WATER DISTRICT IS
24 IN ESSENCE SEEKING THE BENEFITS OF A RATE INCREASE AND THE
25 BENEFITS OF A TAX INCREASE WITHOUT HAVING TO COMPLY WITH THE
26 BURDENS OF EACH. SO, IF THEY WERE TO ENACT IT AS A TAX
JESSICA DAVIS, CSR 12646
12
1 INCREASE UNDER PROP 218, IT HAS TO GO TO A VOTE OF THE VOTERS .
2 THE VOTERS IN ORANGE COUNTY ADOPTED PROP 218 HIGHER THAN THE
3 REST OF THE STATE BY A PERCENTAGE HIGHER. MUCH HIGHER THAN
4 THE STATE . SO IF THE WATER DISTRICT WANTED TO ENACT THIS AS A
5 TAX INCREASE AND SEEK OF THE PROTECTION OF THE CONSTITUTION,
6 THEY WOULD HAVE TO FIRST SUBMIT TAX INCREASE QUESTION TO THE
7 VOTERS . VOTERS HAVE THEIR SAY. BUT SINCE THEY ENACTED IT AS
8 A RATE INCREASE, THEY'RE NOT ALLOWED TO NOW RECAST THAT RATE
9 INCREASE AS A TAX INCREASE AND, AGAIN, SEEK THE BENEFIT OF A
10 TAX INCREASE . SO WHAT WE HAVE HERE IS AN ADOPTED RATE
11 INCREASE, WHICH IS NOT A TAX, BUT AMBIGUOUSLY NOT A TAX AND A
12 GROUP OF VOTERS THAT SEEK TO "REFERENED" THIS RATE INCREASE
13 AND PLACE IT BEFORE VOTERS FOR THEIR SAY OR TO HAVE THE WATER
14 DISTRICT REPEAL IT AS REQUIRED UNDER SECTION 9145 OF THE
15 ELECTIONS CODE . THE REMAINDER OF THE WATER DISTRICT ' S
16 ARGUMENTS AND THE 600-PLUS PAGES THAT THEY'VE SUBMITTED TO YOU
17 ARE NOT PROPER EVIDENCE FOR THIS CASE. THAT IS EVIDENCE FOR A
18 DECLARATORY RELIEF ACTION. NOW, WHAT HAS THE COURT SAID ABOUT
19 DECLARATORY RELIEF ACTIONS RELATED TO ELECTIONS? THEY
20 VIRTUALLY UNANIMOUSLY SAY NOT PROPER SUBJECT MATTER FOR
21 PREELECTION REVIEW. WHY? BECAUSE WATER DISTRICTS WILL THROW
22 650 PAGES AT A COURT AND THEN ASK THE COURT TO RUSH ITS
23 DECISION. AND THAT ' S NOT FAIR TO THE COURT . IT ' S NOT FAIR TO
24 OPPOSING PARTIES . SO THAT ' S WHY COURTS HAVE UNAMBIGUOUSLY
25 SAID DECLARATORY RELIEF ACTIONS RELATED TO ELECTIONS ARE
26 ENTIRELY PROPER FOR POSTELECTION REVIEW AND VIRTUALLY IMPROPER
JESSICA DAVIS, CSR 12646
13
1 FOR PREELECTION REVIEW. SO THAT' S WHY THIS ACTION -- THE WRIT
2 PETITION ACTION, THOSE ARE LIMITED ACTIONS . THOSE ARE LIMITED
3 TO WHETHER THERE IS A MINISTERIAL DUTY TO ACT UPON A DULY
4 QUALIFIED REFERENCE OF PETITION. MY PAPERS LAY OUT QUITE
5 EXPLICITLY THAT THIS IS ENTIRELY PROPER FOR THE BALLOT . AND
6 THE REST OF THE EVIDENCE AND REST OF THE ARGUMENTS THAT ARE
7 BEING MADE BY THE WATER DISTRICT ARE NOT APPROPRIATE FOR
8 PREELECTION REVIEW. I JUST WANT TO FIND ONE MORE THING, YOUR
9 HONOR. EXCUSE ME.
10 THE COURT : SURE .
11 MR. HILDRETH: THE REASON WHY PREELECTION REVIEW IS
12 PROPER FOR DECLARATORY RELIEF ACTIONS AND IMPROPER FOR WRIT
13 PETITIONS IS BECAUSE ONCE THE ELECTION IS PAST, THE CANDLE HAS
14 BEEN EXTINGUISHED. THERE IS NO WAY TO REVERSE THE CLOCK AND
15 PUT THE MEASURE BACK ON THE BALLOT . IN A DECLARATORY RELIEF
16 ACTION, IF THE VOTERS TURN DOWN THE RATE INCREASE AND THE
17 WATER DISTRICT FEELS PASSIONATELY ABOUT THAT, THEY CAN
18 CHALLENGE THAT . BUT THE VOTERS HAVE HAD THEIR SAY, SO THE
19 COURT IS NOT INTERFERING WITH THE VOTERS ' RIGHTS TO QUALIFY ON
20 THE REFERENCE PETITION AND THEN TO VOTE ON THE REFERENDUM
21 PETITION. THERE IS NO INTERFERENCE WITH THAT RESERVE RIGHT .
22 AND THEN ONCE THE ELECTION IT PASSED AND LET ' S SAY THE VOTERS
23 DO TURN DOWN THE RATE INCREASE, THEN WE CAN ALL COME BACK WITH
24 THE BENEFIT OF TIME AND EVIDENCE AND EXPLORATION AND DISCOVERY
25 TO DECIDE WHETHER OR NOT IT SHOULD HAVE BEEN ON THE BALLOT OR
26 IF IT WAS IMPROPER. BUT WE HAVEN' T INTERFERED WITH THAT
JESSICA DAVIS, CSR 12646
14
1 RIGHT, THAT VERY IMPORTANT RIGHT. NOW, OUR REFERENDUM
2 PETITION WAS FILED IN OCTOBER. SO THERE PERHAPS WAS TIME TO
3 CONSIDER THIS BECAUSE THE NOVEMBER ELECTION. YOU'LL RECALL
4 THAT WHEN THE COURT WAS ASKING FOR MORE TIME I SAID "I 'M HAPPY
5 TO PUSH THIS OVER SO LONG AS THE COURT, IF IT GRANTS THE WRIT
6 PETITION, CAN ENSURE THAT WE 'RE ON THE NOVEMBER BALLOT . " SO
7 WE 'VE ACTUALLY GONE BY ONE ELECTION ALREADY. SO THAT ' S WHY
8 THIS IS NOT THE PROPER PLACE OR APPROPRIATE ACTION TO CONSIDER
9 650 PAGES OF EVIDENCE, AMICUS BRIEFS, STUDIES, EXHIBITS . THIS
10 IS VERY LIMITED, VERY NARROW ISSUE . AND PUTTING IT ON THE
11 BALLOT AND LETTING THE VOTERS HAVE THEIR SAY DOES NOT
12 INTERFERE WITH THE OPPORTUNITY FOR THE WATER DISTRICT IF THEY
13 SO FEEL AND SO CHOOSE TO CHALLENGE IT POSTELECTION WHEN WE ALL
14 HAVE THE BENEFIT OF TIME TO MAKE THESE ARGUMENTS . BUT HERE
15 WE 'RE LIMITED TO WAS THERE A MINISTERIAL DUTY AND DID THE
16 WATER DISTRICT PERFORM ITS MINISTERIAL DUTY. THE ANSWER IS,
17 YES, THERE WAS MINISTERIAL DUTY UNDER CONSTITUTION AND UNDER
18 THE ELECTIONS CODE AND, NO, THEY HAVE NOT PERFORMED IT . IN
19 FACT, THEY HAVE BEEN REFUSING TO PERFORM IT AND HOLDING US IN
20 PURGATORY WHILE THE CLOCK TICKS .
21 THANK YOU, YOUR HONOR.
22 THE COURT : MR. GAGEN.
23 MR. GUESS : MR. GUESS .
24 THE COURT : I 'M SORRY.
25 MR. GUESS : GOOD MORNING, YOUR HONOR. SO
26 PETITIONERS MADE A COMMENT THAT THE COURT COULD EASILY REWRITE
JESSICA DAVIS, CSR 12646
15
1 ROSSI VS . BROWN. AND THEY ARE EXACTLY RIGHT . IN ORDER TO
2 RULE IN THEIR FAVOR, THIS COURT WOULD NEED TO REWRITE
3 ESTABLISHED CASELAW MORE THAN 60 YEARS WORTH. THIS CASE
4 FUNDAMENTALLY IS ABOUT THE DIFFERENCES BETWEEN A REFERENDUM
5 AND AN INITIATIVE. AND THROUGHOUT PETITIONER' S PETITION AND
6 ALL THEIR PAPERWORK THEY PLAY FAST AND LOOSE WITH THAT
7 DISTINCTION. THEY SAY "WELL, IT' S A DISTINCTION WITHOUT A
8 DIFFERENCE . WHERE THE RIGHT TO ONE EXISTS THE OTHER ONE IS
9 AUTOMATICALLY ASSUMED TO EXIST . " AND QUITE FRANKLY THE LAW,
10 IF IT IS ANYTHING ELSE, IS A STUDY OF EXCEPTIONS, A STUDY OF
11 HOW ARE THINGS JUST QUITE DIFFERENT . AND ONE OF THE IMPORTANT
12 STATUTES THAT PETITIONER CITED IS ELECTIONS CODE SECTION 9145 .
13 THE LAST SENTENCE OF ELECTIONS CODE SECTION 9145 SAYS
14 SOMETHING VERY IMPORTANT . IT SAYS WHILE THE REFERENDUM IS
15 PENDING ON THE BALLOT, THE MEASURE MAY NOT BE ENACTED. IN
16 OTHER WORDS, UNLIKE AN INITIATIVE WHICH MIGHT PROSPECTIVELY
17 ALTER OUR FINANCES, A REFERENDUM WOULD SAY UNTIL THE VOTERS
18 VOTE ON IT, YOU CAN' T COLLECT REVENUE. THAT ' S A PRETTY
19 POWERFUL THING TO DO TO A PUBLIC AGENCY WHOSE PURPOSE IS THE
20 DELIVERY OF AN ESSENTIAL GOVERNMENT SERVICE WHICH IS THE
21 DELIVERY OF SAFE AND PORTABLE DRINKING WATER. THE CASELAW IS
22 EXTREMELY CLEAR THAT THERE IS AN OVERARCHING PRINCIPLE IN ALL
23 OF THE CASES WHICH IS THAT WHERE THE POWER OF REFERENDUM WOULD
24 INTERFERE WITH AN ESSENTIAL GOVERNMENT SERVICE, THE GENERAL
25 RULE OF LIBERAL CONSTRUCTION SHOULD BE HELD NOT TO APPLY. AND
26 THAT IS WHERE ARTICLE II, SECTION 9, REFERS TO THREE
JESSICA DAVIS, CSR 12646
16
1 ENUMERATED EXCEPTIONS TO THE POWER OF REFERENDUM WHICH ARE
2 REALLY SUBSPECIES OF THAT LARGER PRINCIPLE . AND THAT IS THIS
3 IDEA OF URGENCY STATUTE, SUCH AS AN UNPRECEDENTED DROUGHT THAT
4 CAUSED AN UNPRECEDENTED 36 PERCENT MANDATED CUT TO WATER
5 CONSUMPTION. AND MAKE NO MISTAKE, THE WATER DISTRICT DOES NOT
6 WANT TO BE HERE RIGHT NOW. UNFORTUNATELY FORCES BEYOND ITS
7 CONTROL IN SACRAMENTO MADE A DECISION THAT THE RESIDENCE OF
8 YORBA LINDA SHOULD BE CONSUMING LESS WATER. AND THE RESULT
9 WAS A MASSIVE DECLINE IN OUR VOLUMETRIC SALES AND THAT MEANT
10 OUR PRIMARY SOURCE OF REVENUE, WHICH ARE, IN FACT, THESE
11 PROPERTY RELATED FEES, TOOK A MASSIVE HIT. UNFORTUNATELY,
12 EVEN THOUGH OUR EXPENSES -- EVEN THOUGH OUR REVENUE WENT DOWN,
13 OUR EXPENSES DID NOT . IN OTHER WORDS, WE FACE THE PROSPECT OF
14 A MASSIVE REDUCTION IN OUR ABILITY TO PAY FOR ALL THIS
15 INFRASTRUCTURE THAT IS USED TO DELIVER WATER. AND PEOPLE
16 THINK "WELL, IF I CONSUMED LESS WATER, MY BILL SHOULD GO
17 DOWN. " UNFORTUNATELY, IF THAT WERE THE CASE, WE WOULDN'T BE
18 ABLE TO SUSTAIN THAT INFRASTRUCTURE . NOW, IF THE LAW WERE
19 THAT YOU COULD SUBJECT A FINANCIAL REVENUE MEASURE LIKE OUR
20 RESOLUTION 1522 TO THE POWER REFERENDUM, IT WOULD MEAN THAT WE
21 COULD COULDN'T START COLLECTING THAT MONEY UNTIL, IN THIS
22 CASE, AT THE EARLIEST JUNE 7TH ELECTION. NOW, LET ' S THINK
23 ABOUT THAT . THERE' S A SAYING, BAD FACTS MAKE BAD LAW, GOOD
24 FACTS MAKE GOOD LAW. AND THE FACTS FOR THE YORBA LINDA WATER
25 DISTRICT COULD NOT BE BETTER. WE ENACTED RESOLUTION NO. 1522
26 IN SEPTEMBER OF 2015 . ITS EFFECTIVE DATE WAS OCTOBER 1ST,
JESSICA DAVIS, CSR 12646
17
1 2015 . THE EVIDENCE WE HAVE SUBMITTED SHOWS THAT IF WE HAD NOT
2 ENACTED RESOLUTION NO. 1522 WE WOULD HAVE BEEN IN DEFAULT OF
3 OUR LOANS BY DECEMBER 2015 . NOW, IF WE THINK ABOUT THAT AND
4 DO THE MATH AND SAY "WELL, IS IT SUBJECT TO A REFERENDUM, "
5 WHICH WOULD MEAN WE COULDN'T COLLECT THE FEE UNTIL AT THE
6 EARLIEST JUNE 7, WE WOULD HAVE A VERY SERIOUS PROBLEM.
7 PROPOSITION 218, WHICH WAS ENACTED BY VOTERS IN THE NOVEMBER
8 1996 ELECTION, SETS FORTH ONLY ONE PROCESS BY WHICH A REVENUE
9 MEASURE ENACTED UNDER THAT CODE SECTION CAN BE SUBJECTED TO
10 THE POWER OF PETITION. AND THAT IS THROUGH THE POWER OF
11 INITIATIVE . AND THAT ' S ARTICLE XIII C, SECTION 3 . IT
12 EXPRESSLY DOES NOT REFER TO THE POWER OF REFERENDUM.
13 PROPOSITION 218, THAT SECTION WAS MEANT TO CONSTITUTIONALIZE
14 THE PRINCIPALS OF ROSSI VS . BROWN. AND ROSSI VS . BROWN STATES
15 UNAMBIGUOUSLY THAT IN ORDER TO MAINTAIN A PROPER FISCAL
16 ADMINISTRATION OF A PUBLIC AGENCY, THESE TYPES OF CHANGES TO
17 REVENUE MUST BE PROSPECTIVE; I .E. , TAKE AN EFFECT IN NEXT
18 FISCAL YEAR. TO DO A REFERENDUM WOULD NOT ONLY PREVENT US
19 FROM RAISING NECESSARY REVENUE IN ORDER TO PAY OUR EXPENSES,
20 BUT IT WOULD ALSO REQUIRE IN THIS CASE A REFUND OF
21 APPROXIMATELY 7 . 4 MILLION DOLLARS IF ENACTED BY THE VOTERS IN
22 NOVEMBER OF 2016 . AND THAT WOULD FURTHER JEOPARDIZE THE
23 FINANCES OF OUR ESSENTIAL SERVICE, WHICH, YOU KNOW, GOES TO
24 THINGS LIKE FIRE SUPPRESSION AND SAFE WATER. THERE IS NO
25 QUESTION THAT WE HAVE AN ESSENTIAL GOVERNMENT SERVICE HERE .
26 BUT IF THIS COURT COULD DECIDE AN ISSUE ON A SINGLE CASE, IF
JESSICA DAVIS, CSR 12646
18
1 THERE WERE ONE CASE WE HAD TO CITE, IT WOULDN'T EVEN BE ROSSI
2 VS . BROWN. THE CASE IS MISSION SPRINGS . NOW, THE PETITIONERS
3 GLOSS OVER VERY IMPORTANT PARTS OF MISSION SPRINGS . THE FIRST
4 IS MISSION SPRINGS HELD UNAMBIGUOUSLY, NO QUESTION,
5 PREELECTION REVIEW IS PROPER UNDER THE BASIS OF WATER CODE
6 31, 007 . AND THE MISSION SPRING COURT' S REASONING COULD NOT
7 HAVE BEEN CLEARER. IF THE LEGISLATURE LACKS THE POWER UNDER
8 WATER CODE 31, 007 TO SET WATER RATES LOWER THAN THOSE REQUIRED
9 TO MEET ITS OPERATIONAL EXPENSES, NEITHER CAN THE VOTERS DO SO
10 BY INITIATIVE. NOW, TO BE CLEAR, MISSION SPRINGS DIDN' T EVEN
11 TALK ABOUT THE POWER OF REFERENDUM. THEY TALKED ABOUT THE
12 POWER OF INITIATIVE . BUT EVEN BY INITIATIVE THE VOTERS CAN' T
13 SET WATER RATES PROSPECTIVELY THAN THOSE THAT ARE REQUIRED.
14 NOW, PETITIONERS MAKE A VERY INTERESTING ARGUMENT . THEY SAY
15 THEY SHOULD HAVE FILED A DECLARATORY RELIEF ACTION EVEN THOUGH
16 MISSION SPRINGS HELD UNAMBIGUOUSLY PREELECTION REVIEW IS
17 PROPER. ON PAGE 907, FOOTNOTE 3, OF MISSION SPRINGS IT
18 STATES, QUOTE, "FILING THE ACTION" -- AND IT ' S REFERRING TO
19 DECLARATORY RELIEF -- "DOES ENHANCE THE DISTRICT ' S APPEARANCE
20 OF GOOD FAITH. IT CAN CLAIM IT IS MERELY AWAITING GUIDANCE
21 FROM THE COURT . HOWEVER, THE DISTRICT COULD HAVE REFUSED TO
22 PLACE THE INITIATIVE ON THE BALLOT WITHOUT FILING ANY ACTION
23 AT ALL. " IT DOESN' T GET MUCH CLEARER THAN THAT . SO NOT ONLY
24 DOES MISSION SPRINGS UNAMBIGUOUSLY STATE THAT PREELECTION
25 REVIEW IS PROPER, IT UNAMBIGUOUSLY REFUTES THE STATEMENTS THAT
26 PETITIONERS MADE WHICH IS "WELL, THEY NEEDED TO GO IN BY
JESSICA DAVIS, CSR 12646
19
1 DECLARATORY RELIEF. " AND, QUITE FRANKLY, THE DECLARATORY
2 RELIEF ARGUMENT DOESN'T MAKE ANYMORE SENSE THAN STATING THAT
3 WE NEED TO WAIT UNTIL THE VOTERS APPROVE A REVENUE CHANGE .
4 THIS LAWSUIT ITSELF HAS AFFECTED THE FINANCES OF THE YORBA
5 LINDA WATER DISTRICT . AS WE SUBMITTED IN OUR PAPERS, WE WERE
6 ATTEMPTING TO REFINANCE A BOND WHICH WOULD HAVE SAVED US
7 APPROXIMATELY $320, 000 A YEAR ANNUALLY. AS PART OF AN
8 APPLICATION TO REFINANCE THAT BOND, WE WOULD HAVE HAD TO
9 DISCLOSE THIS LAWSUIT AND THE UNCERTAINTY RELATED TO IT . AND
10 WE WERE ADVISED BY OUR FINANCIAL ADVISERS THAT THAT WOULD
11 ESSENTIALLY MAKE IT IMPOSSIBLE FOR US TO REFINANCE THE BOND
12 UNTIL WE GOT A RESOLUTION REGARDING THIS ISSUE. NOW, IF THIS
13 PETITION FOR WRIT OF MANDATE COULD HAVE CAUSED THAT BY STATING
14 THAT WE WOULD NEED TO FILE A CLAIM FOR DECLARATORY RELIEF,
15 THEY SIMPLY ARE SAYING YOU NEED TO CAUSE THAT UNCERTAINTY
16 YOURSELF. THE LAW IS CLEAR THAT WHERE A PETITION BY THE
17 VOTERS IS CLEARLY INVALID AND WHERE THERE IS A COMPELLING
18 SHOWING THAT IT IS CLEARLY INVALID, IT NEED NOT AND SHOULD NOT
19 BE PLACED ON THE BALLOT . THEY CITE A NUMBER OF CASES WHICH
20 THEY BELIEVE HOLDS CONTRA. NO. 1, MISSION SPRINGS IS DIRECTLY
21 ON POINT AND THEY CITE GENERAL CASES . BUT I WOULD POINT OUT
22 TO THE COURT THEIR GENERAL CASES AND I WOULD SAY THE ONE THEY
23 RELY ON MOST IS STATES IN ESSENCE THAT FOR AN INITIATIVE IT ' S
24 PROPER TO SEEK TO FILE A PETITION FOR WRIT OF MANDATE TO THE
25 REGISTRAR VOTES . BUT IT MAKES NO MENTION OF DOING THE SAME
26 PROCESS IN REFERENDA. AND, WHERE THEY GLOSS OVER THAT, WE
JESSICA DAVIS, CSR 12646
20
1 THINK THAT IS CRITICALLY IMPORTANT . AND THAT ' S IMPORTANT
2 BECAUSE, AS I STATED EARLIER, ELECTIONS CODE SECTION 9145
3 WOULD PREVENT US FROM COLLECTING REVENUE AND WE HAVE AN
4 IMPORTANT SERVICE TO PROVIDE THE COMMUNITY. IT ' S THE SUMMER.
5 WE NEED TO HAVE WATER TO FIGHT FIRES . AND ALTHOUGH THEY MAKE
6 A BIG CLAIM SAYING, "WELL, THE ARTICLE II, SECTION 9,
7 EXCLUSION FOR TAX LEVIES REFERS TO TAXES AND THIS IS A WATER
8 RATE INCREASE. " THAT ' S TOTALLY DIFFERENT. WELL, FIRST THE
9 SAN MARCOS CASE -- WHICH IS SAN MARCOS WATER DISTRICT VS . SAN
10 MARCOS UNIFIED SCHOOL DISTRICT, 42 CAL. 3D 154, STATES THAT,
11 FIRST OF ALL, YOU LOOK TO NOT THE FORM BUT THE SUBSTANCE OF
12 WHAT YOU ARE DOING. AND THAT ' S CRITICALLY IMPORTANT . THIS IS
13 OUR MAIN SOURCE OF REVENUE, 90 PERCENT OF OUR MONEY. IF WE
14 DON' T HAVE THIS MONEY, WE CAN' T SUPPLY SAFE DRINKING WATER TO
15 THE COMMUNITY AND THAT MEANS ALL SORTS OF PUBLIC HEALTH ISSUES
16 COULD OCCUR. WE HAVE ALSO CITED TO NORTHWESTERN MUTUAL LIFE
17 INSURANCE COMPANY VS . STATE BOARD OF EQUALIZATION, 73 CAL.APP.
18 2D 548, WHICH MAKES AN INTERESTING POINT AND THE NORTHWESTERN
19 CASE SAYS : "WELL, YES, YOU HAVE ASSESSMENTS AND YOU HAVE
20 TAXES, BUT YOU ALSO HAVE SOMETHING CALLED THE GENERAL POWER OF
21 TAXATION. " AND THE GENERAL POWER OF TAXATION IS AN
22 OVERARCHING PRINCIPAL WHERE THE GOVERNMENT IS LEVYING TO PAY
23 FOR A PUBLIC GOOD. NOW, IT' S TRUE THAT IN NORTHWESTERN THE
24 COURT ULTIMATELY HELD THAT IN THAT CASE AN ASSESSMENT DID NOT
25 QUALIFY AS A TAX, BUT IT IDENTIFIED TWO TAXES . TAX WITH A BIG
26 T, GENERAL POWER OF TAXATION, AND TAXES WITH A LITTLE T . AND
JESSICA DAVIS, CSR 12646
21
1 PROPOSITION 218 CREATES TAXES AS A TERM OF ART WHICH IS THIS
2 IDEA OF ARTICLE XIII C. AND, WHEN VOTERS ENACTED PROPOSITION
3 26 IN 2010, THEY ADDED A VERY IMPORTANT PROVISION TO ARTICLE
4 XIII C AND XIII A WHICH IS THAT THE ASSUMPTION IS EVERY TYPE
5 OF REVENUE THAT THE GOVERNMENT RAISES IS A TAX. AND THE
6 BURDEN BY PREPONDERANCE OF THE EVIDENCE IS ON THE PUBLIC
7 AGENCY TO SHOW IT' S NOT A TAX. THEY OF COURSE HAVE CITED AND
8 STATED THAT THERE WAS SOME PUBLIC COMMENT MADE AT A RADIO SHOW
9 THAT CONTRADICTS THIS . I 'LL DEAL WITH THAT IN TWO WAYS .
10 FIRST IS CLEARLY HEARSAY. ABSOLUTELY IMPROPER EVIDENCE .
11 NO. 2, EVEN IF IT WEREN' T EVIDENCE, THE STATEMENT BY A
12 LAYPERSON IS NOT CONTROLLING ON THIS COURT AS TO WHAT IS OR IS
13 NOT FALLING WITHIN THE GENERAL POWER OF TAXATION. SO THE
14 COURT SHOULD BE LOOKING AT WHAT THIS PROPERTY-RELATED FEE DOES
15 FOR US AS OPPOSED TO ITS LABEL. AND THAT' S THE SAN MARCOS
16 CASE . THERE ' S ANOTHER IMPORTANT CASE DARE VS . LAKEPORT CITY
17 COUNCIL, 12 CAL.APP. 3D 864 . AND IN THAT CASE THE COURT HELD
18 THAT A SEWER FEE WAS UNDER THE GENERAL POWER OF TAXATION AND
19 NOT SUBJECT TO REFERENDUM. SO ONCE AGAIN WE HAVE REPEATED
20 CASELAW SHOWING THE ISSUE IS WHETHER OR NOT THE REFERENDUM
21 WOULD IMPAIR AN ESSENTIAL GOVERNMENT SERVICE . AND, MAKE NO
22 MISTAKE, WHAT THEY ARE SUBMITTING WOULD JEOPARDIZE OUR
23 FINANCES TO SUCH A POINT THAT WE COULD BE DRIVEN INTO DEFAULT.
24 THEY SAY THE COURT SHOULDN'T CONSIDER OUR EVIDENCE; BUT, OF
25 COURSE, THEIR ONLY OBJECTION THAT THEY HAVE SUBMITTED IS ON
26 GROUNDS OF RELEVANCE . AND THIS EVIDENCE COULDN' T BE MORE
JESSICA DAVIS, CSR 12646
22
1 RELEVANT. THE MISSION SPRINGS COURT STATES IN THAT CASE THE
2 WATER DISTRICT SUBMITTED EVIDENCE ON PREELECTION REVIEW. THE
3 COURT CONSIDERED IT . AND THE MISSION SPRINGS COURT SAID IT ' S
4 UNCONTROVERTED. THE OTHER SIDE DIDN'T COME IN AND SAY WHY OUR
5 600 PAGES OF EVIDENCE IS WRONG. ONE OF THE OTHER CRITICAL
6 PIECES OF OUR 600 PAGES OF EVIDENCE IS THE REPORT BY STANDARD
7 & POOR' S WHICH STATES THAT IF WE ARE UNABLE TO KEEP THIS RATE
8 INCREASE, THEY MIGHT DOWNGRADE OUR CREDIT RATING FROM AA-PLUS
9 TO SOMETHING LOWER. THE STANDARD & POOR' S STATE IN THEIR
10 JUDGMENT THEY DON' T ANTICIPATE THIS LAWSUIT WILL BE PASSED.
11 IF THAT REPORT WERE FOUND TO BE WRONG, STANDARD & POOR' S MIGHT
12 SAY "WOW, THERE ' S AN INCREDIBLE ELEMENT OF UNCERTAINTY OVER
13 YOUR ADDITIONAL REVENUE WHICH SUPPLIES YOU WITH APPROXIMATELY
14 $620, 000 PER MONTH. " NOW, PROPOSITION 218 WHICH, AGAIN, MAKES
15 NO MENTION OF THE RIGHT TO REFERENDUM, WHICH IS INTENTIONAL,
16 ALSO STATES THAT THE ONLY WAY THAT THE ELECTOR CAN CHALLENGE
17 WHAT WE 'VE DONE IS BY MAJORITY PROTESTS . IN OTHER WORDS, WE
18 DRAFT A PROP 218 NOTICE, WE SET A HEARING, WE CIRCULATE THAT
19 NOTICE TO THE REGISTERED PROPERTY OWNERS WHO WOULD BE AFFECTED
20 BY THE FEE INCREASE, AND THEY HAVE TO COME BACK WITH A
21 MAJORITY PROTEST OF 50 PERCENT OR MORE . THEY FELL FAR SHORT
22 OF THAT IN THIS CASE . THAT IS WHAT IS IN ARTICLE XIII D,
23 SECTION 6 . AND THAT IS THE ONLY PROCESS THAT IS REQUIRED FOR
24 TAXPAYER CONSENT ON THIS ISSUE . WE DID THAT . TO SAY THAT
25 WE 'RE ALSO SUBJECT TO THE POWER OF REFERENDUM WOULD IN EFFECT
26 REWRITE PROPOSITION 218 WITH A STRICTER AND MORE STRINGENT
JESSICA DAVIS, CSR 12646
23
1 STANDARD WHICH WOULD MAKE IT MUCH, MUCH HARDER AND MUCH WORSE
2 THAN THE VOTERS WHO ENACTED PROPOSITION 218 TO -- IN ORDER TO
3 ENACT A RATE INCREASE . I WOULD ALSO POINT OUT THAT ONE OF THE
4 CASES THAT PETITIONERS HAVE CITED ARCADE COUNTY WATER DISTRICT
5 VS . ARCADE COUNTY FIRE DISTRICT, 6 CAL.APP. 3D 232, HAS SOME
6 GREAT LANGUAGE IN IT THAT SAYS THERE SHOULD BE A PRESUMPTION
7 THAT WATER DISTRICT RATE INCREASES SHOULD BE PRESUMED TO BE
8 REASONABLE . AND IN THIS CASE WE ALSO SUBMITTED EVIDENCE THAT
9 OUR RATE INCREASE WAS DESIGNED TO THE REVENUE NEUTRAL. AND,
10 WHILE THAT ' S NOT STRICTLY SPEAKING THE ISSUE BEFORE THE COURT,
11 IT GOES TO THE ISSUE OF AN EMERGENCY AND WHAT IT WAS THE WATER
12 DISTRICT WAS DOING. IN OTHER WORDS, IF A CONSUMER REDUCED
13 THEIR WATER CONSUMPTION BY 36 PERCENT AND OUR VOLUMETRIC SALES
14 GO DOWN BY 36 PERCENT, IT SHOULD BE APPROXIMATELY THE SAME
15 BILL FOR THEM. NOW, IT IS AN INCREASE IN THE SENSE THEY ARE
16 PAYING MORE FOR LESS WATER, BUT THE POINT I 'M TRYING TO MAKE
17 IS THAT THE REASON WE DID THIS WAS BECAUSE OF FORCES BEYOND
18 OUR CONTROL. AND ATTACHED TO THE DECLARATION OF MARK MARK
19 ANTONIO, WHO IS PRESENT HERE IN THE COURTROOM WHO IS OUR
20 GENERAL MANAGER, WE ATTACH A LETTER FROM THE CHAIRPERSON OF
21 THE STATE WATER RESOURCES CONTROL BOARD, FELICIA MARCUS, AND
22 SHE' S PRAISING WHAT WE'VE DONE IN THIS CASE BECAUSE SHE
23 UNDERSTANDS THAT THE DECISION WAS MADE IN SACRAMENTO BUT THE
24 POLITICAL HEAT IS BEING FELT HERE IN YORBA LINDA. AND WE DID
25 THE ONLY THING WE COULD DO. WE 'VE ALSO CITED ANOTHER ISSUE,
26 WHICH IS THE CONTRACTS CLAUSE . AND I 'M GOING TO COVER THAT
JESSICA DAVIS, CSR 12646
24
1 BRIEFLY, BUT IT REALLY TOUCHES UPON ALL THE OTHER ISSUES I 'VE
2 TALKED ABOUT WHICH IS YOU CANNOT REPEAL A TAX IF THE RESULT
3 WOULD BE INTERFERENCE WITH CONTRACTS THAT A PUBLIC AGENCY HAS .
4 AND IN THIS CASE THEIR PROPOSED REFERENDUM WOULD POTENTIALLY
5 CAUSE US TO BREACH A NUMBER OF CONTRACTS THAT WE HAVE . WE ARE
6 IN APPROXIMATELY $8, 000, 000 HOLE. THAT ' S THE HOLE CAUSED BY
7 THE STATE WATER RESOURCES CONTROL BOARD OR MORE CORRECTLY THE
8 DROUGHT THAT THE STATE WATER RESOURCES CONTROL BOARD WAS
9 RESPONDING TO. AND WE CANNOT PUT ON THE BALLOT A REFERENDUM
10 ON THIS ISSUE BECAUSE THE RESULT WOULD BE INTERFERENCE WITH AN
11 ESSENTIAL GOVERNMENT SERVICE . THEY'VE ALSO CITED THE CASE OF
12 EMPIRE WASTE MANAGEMENT VS . TOWN WINDSOR WHICH THEY
13 INACCURATELY CITE AS SAYING A REFERENDUM IS PROPER ON, I
14 GUESS, A SEWER FEE . BUT IT DOESN' T SAY ANYTHING OF THE SORT .
15 THAT WAS WHETHER REFERENDUM APPLIED TO AN EXCLUSIVE FRANCHISE
16 AGREEMENT . NOT ON POINT . THE LITANY OF CASES WHICH OVER AND
17 OVER AND OVER AGAIN SAY NOT ONLY THAT REFERENDUMS DON' T APPLY
18 TO GOVERNMENT REVENUE SOURCES, BUT ALSO THAT PREELECTION
19 REVIEW IS PROPER AND, IN PARTICULAR THE MISSION SPRINGS CASE,
20 SO OVERWHELMINGLY SHOW THAT WHAT THE YORBA LINDA WATER
21 DISTRICT DID IN THIS CASE WAS NOT ONLY APPROPRIATE, BUT IT WAS
22 FRANKLY THE ONLY RESPONSIBLE THING THAT THEY COULD DO UNDER
23 THE EXTRAORDINARY CIRCUMSTANCES OF THIS CASE . I ALSO WANT TO
24 MENTION ONE OTHER ISSUE WHICH I MAY HAVE MISSED, WHICH IS THAT
25 BIGHORN DESERT CASE STATES THAT ARTICLE XIII C, SECTION 3,
26 TREATS TAXES AND PROPERTY-RELATED FEES THE SAME FOR PURPOSES
JESSICA DAVIS, CSR 12646
25
1 OF THAT SECTION. SO THAT ALSO ADDRESSES THIS ISSUE ABOUT
2 WHETHER THERE IS THIS HUGE DIFFERENCE BETWEEN A
3 PROPERTY-RELATED FEE AND A TAX. EVEN THOUGH -- IF THE COURT
4 WERE TO CONSTRUE A PROPERTY-RELATED FEE IS SO DIFFERENT FROM A
5 TAX, THE RESULT WOULD BE OUR POTENTIAL BANKRUPTCY. IT WOULD
6 SIMPLY BE TOTALLY INEQUITABLE AND A DISTINCTION WITHOUT A
7 DIFFERENCE . THIS PROPERTY-RELATED FEE IS AS ESSENTIAL AND IS
8 AS IMPORTANT TO US AS ANY OTHER TYPE OF REVENUE WE COULD
9 POSSIBLY RAISE . AND WE DON' T HAVE A TAX THAT APPLIES TO EVERY
10 SINGLE RESIDENT OF THE CITY, AT LEAST TO MY KNOWLEDGE . OUR
11 PRIMARY REVENUE ARE THESE PROPERTY-RELATED FEES .
12 THANK YOU.
13 THE COURT : THANK YOU. ANOTHER WORD?
14 MR. HILDRETH: THANK YOU, YOUR HONOR. SO WE DIVE
15 RIGHT BACK INTO THE FACTUAL ARGUMENTS AND, AGAIN, NOT PROPER
16 FOR THIS ACTION. LET ' S CLARIFY FOR THE COURT WHEN THE -- WHEN
17 PREELECTION REVIEW WAS PROPER, FOR EXAMPLE, IN MISSION
18 SPRINGS . AND TO -- TO REMOVE AN INITIATIVE OR BALLOT MEASURE
19 FROM THE BALLOT ON A PREELECTION BASIS IS PROPER WHEN ON ITS
20 FACE IT IS IMPROPER FOR THE BALLOT . SO IN MISSION SPRINGS,
21 WHETHER OR NOT THERE WAS EVIDENCE SUBMITTED, THE COURT DIDN' T
22 NEED IT . ALL IT HAD TO DO WAS LOOK AT THE FACE OF THE
23 REFERENDUM PETITION AND LOOK AT PROP 218 AND DECIDE "HEY, YOUR
24 INITIATIVE PETITION WANTS TO SET WATER RATES . IT WANTS TO
25 TAKE AWAY FROM THE GOVERNING BODY THE ABILITY TO SET ITS OWN
26 RATES . " AND SO PROP 218 DOESN' T GIVE YOU THAT POWER. IT SAYS
JESSICA DAVIS, CSR 12646
26
1 YOU CAN USE THE INITIATIVE POWER TO REPEAL A RATE . IT SAYS
2 NOTHING ABOUT SETTING RATES TO CONSUMER PRICE INDEX OR COLA
3 ADJUSTMENTS SO THE COURT DIDN' T NEED THE EVIDENCE, WHETHER OR
4 NOT IT WAS SUBMITTED. THE COURT ONLY HAD TO LOOK AT TWO
5 PIECES OF PAPER, THE INITIATIVE PETITION AND PROP 218 AND SAY
6 "YOU CAN' T SET THE RATES WITH THE INITIATIVE MEASURE, SO
7 YOU'RE OFF THE BALLOT BECAUSE YOU ARE GOING BEYOND THE
8 INITIATIVE POWER THAT IS AFFORDED TO YOU UNDER PROP 218 . " SO
9 THE WATER DISTRICT JUST TOLD YOU THE ONLY THING WE COULD DO IS
10 RAISE RATES . NO, IT ISN' T . THEY COULD ALSO HAVE RAISED TAXES
11 UNDER WATER CODE SECTION 31650 . AND THAT WOULD HAVE IMMUNIZED
12 THAT -- THOSE ADDITIONAL FUNDS THAT ARE COMING IN FROM THE
13 REFERENDUM POWER. AND, AS I SAID IN MY OPENING, HAD THEY DONE
14 THAT AND MY CLIENTS CAME TO ME AND SAID "WE WANT TO REFER
15 THIS, " I WOULD HAVE SAID, "I 'M SORRY, YOU CAN'T . THE
16 CONSTITUTION SAYS YOU CAN' T REFER A TAX MEASURE . " SO THEY DID
17 HAVE OTHER OPTIONS . THEY CHOSE THE EXPEDIENT OPTION TO
18 APPROVE IT, TO PASS IT. AND NOW WANT TO SEEK THE PROTECTION
19 OF A DIFFERENT SECTION OF A WATER CODE THAT IT' S A TAX. SO
20 THEY WANT YOU TO BELIEVE THAT A RATE IS A TAX AND A TAX IS A
21 RATE, BUT IT ' S NOT . AND THERE IS AN ENTIRE BODY OF LAW IN
22 CALIFORNIA THAT DISTINGUISHES BETWEEN THE TWO. AS FAR AS THE
23 MAJORITY PROTEST, THEY SORT OF -- THE WATER DISTRICT WANTS TO
24 SUBSTITUTE THAT . "HERE ' S THE VOTERS HAVING THEIR SAY. " BUT
25 THE WATER DISTRICT IN THIS CASE, AS REQUIRED UNDER PROP 218,
26 SENT IT TO PROPERTY OWNERS . THE NOTICE DOESN'T GO TO VOTERS .
JESSICA DAVIS, CSR 12646
27
1 IT GOES TO PROPERTY OWNERS . THOSE ARE NOT ONE IN THE SAME .
2 THOSE ARE DIFFERENT UNIVERSES . THESE ARE NOT TWO OF THE SAME.
3 THESE ARE DIFFERENT . EMPIRE WASTE WAS A REFERENDUM MEASURE
4 THAT WAS ALLOWED TO GO FORWARD BY THE COURT THAT WAS A
5 FRANCHISE AGREEMENT THAT ALSO INCLUDED RATES . AND THAT CASE
6 HAS DUAL APPLICABILITY HERE. FIRST UNDER THE FACT THAT IT WAS
7 ESSENTIALLY A PUBLIC UTILITY THAT WAS ALLOWED TO BE REFERRED.
8 BUT, SECOND, IN TERMS OF INTERFERING WITH AN ESSENTIAL
9 GOVERNMENT FUNCTION, THE COURT SAID WE 'RE GOING TO ALLOW THIS
10 DO GO FORWARD. EVEN IF IT MEANS NO GARBAGE COLLECTION
11 WHATSOEVER IN THE CITY, THE VOTERS HAVE A RIGHT TO REFER TO
12 THIS LEGISLATIVE ENACTMENT . IT MIGHT BE MEAN THAT GARBAGE IS
13 PILING UP ON YOUR CURBSIDE, BUT THE VOTERS, AS THEY HAVE
14 RESERVED THEMSELVES IN THE CONSTITUTION, HAVE A RIGHT TO REFER
15 THIS TO THE VOTERS . AND IN ESSENCE THE ARGUMENTS THAT THE
16 WATER DISTRICT WANTS TO MAKE ARE ARGUMENTS THEY COULD HAVE AND
17 SHOULD HAVE MADE TO THE VOTERS IF THEY WANTED TO PURSUE A TAX
18 INCREASE. SIMILARLY THEY CAN MAKE THOSE ARGUMENTS TO THE
19 VOTERS ON A REFERENDUM ISSUES . THEY'RE ALLOWED -- THE
20 DISTRICT MEMBERS ARE ALLOWED TO SUPPORT OR OPPOSE A REFERENDUM
21 MEASURE, ALLOWED TO START A PACK, PUSH MONEY TOWARDS IT, DO
22 WHATEVER THEY WANT TO DO TO APPROVE OR OPPOSE A REFERENDUM
23 MEASURE AND MAKE ALL THE ARGUMENT THAT MR. GUESS IS MAKING
24 TODAY. IN ADDITION TO EMPIRE WASTE WE ALSO HAVE THE ISSUE OF
25 PASO ROBLES . PASO ROBLES PASSED A WATER RATE INCREASE .
26 VOTERS THERE DECIDED TO CIRCULATE A REFERENDUM PETITION. THE
JESSICA DAVIS, CSR 12646
28
1 REFERENDUM PETITION GATHERED ENOUGH SIGNATURES . THE GOVERNING
2 BODY THERE SAID "FINE . YOU GOT IT . YOU ARE RIGHT . YOU HAVE
3 ENOUGH SIGNATURES . WE'RE GOING TO PUT THIS ON THE BALLOT . "
4 SO IT ' S ALREADY HAPPENED IN PRACTICE IN OTHER AREAS AND THAT
5 WAS IN 2009 . AND I 'VE SUBMITTED EVIDENCE WITH -- FOR THAT IN
6 MY DOCUMENTS ABOUT THAT ISSUE . I ALSO WANT TO TALK BRIEFLY
7 JUST ABOUT THE INTERFERENCE WITH AN ESSENTIAL GOVERNMENT
8 FUNCTION. THE WATER DISTRICT TRIED TO REWRITE THAT LINE A
9 LITTLE BIT . THEY WANT IT TO SAY INTERFERE WITH AN ESSENTIAL
10 GOVERNMENT SERVICE . AND THEY CITE A CASE MCBEAN VS . FRESNO,
11 1896 -- I LOVE CASES FROM TWO CENTURIES AGO. I REALLY DO --
12 112 CAL. 159, 163 . AND THEY HAVE A QUOTE. THAT QUOTE SAYS :
13 "CLEAN AND SANITARY WATER AND SEWER SERVICES ARE ESSENTIAL
14 GOVERNMENT SERVICES . " THAT QUOTE APPEARS NOWHERE IN THAT
15 CASE . THEY HAVE TRIED -- THEY HAVE PULLED THAT OUT AND
16 REPRESENTED IT AS A QUOTE FROM THAT CASE . IN FACT, I COULDN'T
17 EVEN FIND A DISCUSSION ABOUT CLEAN AND SANITARY WATER IN THAT
18 ENTIRE CASE . SO TO RELY ON THAT AS WELL -- WE'RE AN ESSENTIAL
19 GOVERNMENT SERVICE -- LOOK AT MCBEAN VS . FRESNO -- IT ' S NOT IN
20 THERE . THAT QUOTE IS NOT IN THERE . MORE BROADLY, THE
21 QUESTION IS WHETHER THIS WOULD INTERFERE WITH ESSENTIAL
22 GOVERNMENT SERVICE . IT ' S A QUESTION WHETHER IT WILL INTERFERE
23 WITH ESSENTIAL GOVERNMENT FUNCTION. AND THE TWO TIMES, AT
24 LEAST THAT I 'VE SITED IN MY REPLY BRIEF, WHERE A COURT HAS --
25 IS WHERE IT WOULD TIE THE HANDS OF THE GOVERNING BODY AT A
26 LATER TIME . SO, IN OTHER WORDS, I CITE TO CITY OF ATASCADERO
JESSICA DAVIS, CSR 12646
29
1 WHERE THE COURT BUMPED AN INITIATIVE FROM THE BALLOT THAT
2 WOULD HAVE REQUIRED SUBMISSION OF ANY REVENUE-RAISING MEASURE
3 TO THE VOTERS FOR APPROVAL. AND THE COURT SAID THAT WAS AN
4 INTERFERENCE WITH THE TAXING POWER OF THE CITY. OUR
5 REFERENDUM OBVIOUSLY DOES NONE OF THAT . NOT LIKE MISSION
6 SPRINGS, WE 'RE NOT TRYING TO SET RATES . NOT LIKE ATASCADERO,
7 WE 'RE NOT TRYING TO RESTRAIN THE WATER DISTRICT FROM DOING
8 THINGS IN THE FUTURE IN TERMS OF RAISING RATES OR RAISING
9 TAXES . SO THAT ARGUMENT IS BUNK. IT' S NOT HERE . NOW, THE
10 STANDARDS FOR REMOVING A MEASURE FROM THE BALLOT PREELECTION
11 IS ONE OF THE HIGHEST STANDARDS WE SEE IN TERMS IN THE
12 INITIATIVE AND REFERENDUM AREAS . THE COURTS SAY THAT EVEN
13 GRAVE DOUBTS AS TO THE CONSTITUTIONALITY OF A MEASURE DO NOT
14 COMPEL A COURT TO DETERMINE ITS VALIDITY PRIOR TO ITS
15 SUBMISSION TO THE ELECTRIC. THAT CASE IS GAYLE VS . HAMM,
16 1972, 25 CAL.APP. 3D, 250 AT 256 . IT' S ON PAGE 8 OF OUR REPLY
17 BRIEF. AND SO TO REMOVE A MEASURE FROM THE BALLOT THE COURT
18 HAS TO FIND THAT IT IS CLEARLY INVALID, BEYOND QUESTION,
19 READILY AND WITH CONFIDENCE. IT HAS TO -- THERE HAS TO BE A
20 COMPELLING SHOWING OF INVALIDITY. A SHOWING THAT IT IS CLEAR
21 BEYOND QUESTION THAT THE PROPOSED MEASURE IS INVALID. COMPARE
22 THAT TO POSTELECTION REVIEW WHERE THE COURT MERELY HAS TO
23 DECIDE WHETHER OR NOT THE MEASURE IS VALID. MUCH HIGHER
24 STANDARD PREELECTION TO TAKE SOMETHING OFF THE BALLOT . AND,
25 AS I SAID IN MY OPENING, THERE ' S A REASON FOR THAT . BECAUSE
26 ONCE YOU PULL IT FROM THE BALLOT, THERE IS NO WAY TO PUSH IT
JESSICA DAVIS, CSR 12646
30
1 BACK ON THE BALLOT . SO THE COURTS DEFER TO THE ELECTORAL
2 PROCESS . AND THEN, IF THERE IS STILL A HESITATION
3 POSTELECTION, THEN WE CAN CONSIDER IT, TAKE A SOBER SECOND
4 LOOK WITH TIME FOR DISCOVERY EXPERT ARGUMENT . I WILL SAY IN
5 TERMS OF THE DOCUMENTS THAT THE WATER DISTRICT HAS SUBMITTED,
6 I ASKED FOR DOCUMENTS FROM THE WATER DISTRICT . I ASKED FOR
7 MONTHLY RESERVE BALANCES . I ASKED FOR RECORDS RELATED TO
8 $800, 000, 000 OF INFRASTRUCTURE COSTS . I ASKED FOR RECORDS
9 REGARDING FINANCING OF DISTRICT PROJECTS, RECORDS REGARDING
10 THE ACQUISITION AND SALE OF WATER, RECORDS REGARDING THE
11 DISTRICT' S PURCHASE OF GOODS AND SERVICES . FOR EVERY ONE OF
12 THOSE RESPONSES AND MORE, THE RESPONSE WAS NOT RELEVANT TO THE
13 SUBJECT MATTER IN INVOLVED IN THIS ACTION. I COMPLETELY
14 AGREE . IT ' S NOT RELEVANT . THESE ARE POSTELECTION ISSUES THAT
15 WE SHOULD BE DECIDING AFTER THE ELECTION IF IT' S STILL AN
16 ISSUE BECAUSE THE VOTERS MIGHT SAY WE THINK WE NEED THAT RATE
17 INCREASE. SO WE 'RE GOING TO UPHOLD THAT RATE INCREASE . IF
18 THEY TURN IT DOWN AND THE WATER DISTRICT STILL WANTS TO ARGUE
19 IT, THERE ' S TIME TO ARGUE IT . WE SHOULDN' T BE RUSHED INTO A
20 HASTY DECISION TO PULL SOMETHING FROM THE BALLOT BECAUSE OF
21 ITS INTERFERENCE WITH THE VOTERS ' RESERVED RIGHT OF
22 REFERENDUM. THANK YOU, YOUR HONOR. UNLESS YOU HAVE ANY
23 QUESTIONS OF ME --
24 THE COURT : I DON' T . THANK YOU VERY MUCH. I 'M
25 GOING TO TAKE THE MATTER UNDER SUBMISSION. IS THERE A TIME
26 RESTRAINT ON THE COURT ISSUING ITS DECISION?
JESSICA DAVIS, CSR 12646
31
1 MR. HILDRETH: YOUR HONOR, THERE' S A COUPLE OF
2 PROCEDURAL STEPS THAT HAVE TO HAPPEN. IF THE COURT WERE TO
3 GRANT THE PETITION, THE WATER DISTRICT WOULD NEED TO ACT ON
4 THEN THE ISSUE OF THE REFERENDUM PETITION. MR. GUESS CAN
5 PROBABLY SPEAK MORE TO THE SCHEDULED MEETINGS, BUT I WOULD ASK
6 THAT THERE BE ENOUGH TIME FOR THE WATER DISTRICT TO ENACT ON
7 IT TO ACT ON THE -- IF THE COURT WERE TO -- WHAT I DO KNOW IS
8 UNDER THE ELECTIONS CODE ELECTION DAY MINUS 88 DAYS IS THE
9 LAST DAY FOR SOMETHING TO BE PUT ON THE BALLOT. THIS YEAR, I
10 BELIEVE, ELECTION MINUS 88 DAYS IS AUGUST 12 . BUT, AGAIN,
11 WITH SCHEDULING AND MEETINGS -- I DON' T KNOW THEIR EXACT
12 SCHEDULES FOR MEETINGS .
13 THE COURT : I 'M CONFIDENT I ' LL HAVE MY DECISION LONG
14 BEFORE AUGUST 12 .
15 MR. HILDRETH: THANK YOU.
16 THE COURT : IS THAT GOING TO WORK?
17 MR. GUESS : YES, YOUR HONOR.
18 THE COURT : THANK YOU VERY MUCH.
19 MR. HILDRETH: THANK YOU, YOUR HONOR.
20 MR. GUESS : THANK YOU, YOUR HONOR.
21 (PROCEEDINGS CONCLUDED. )
22
23
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26
JESSICA DAVIS, CSR 12646
32
1 REPORTER' S CERTIFICATE
2
3 STATE OF CALIFORNIA )
) ss .
4 COUNTY OF ORANGE )
5
6 I, JESSICA DAVIS, CSR 12646, REPORTER PRO TEMPORE IN
7 AND FOR THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY
8 OF ORANGE, DO HEREBY CERTIFY THAT THE FOREGOING TRANSCRIPT IS
9 A TRUE AND CORRECT TRANSCRIPT OF MY SHORTHAND NOTES, AND IS A
10 FULL, TRUE AND CORRECT STATEMENT OF THE PROCEEDINGS HAD TN
11 SAID CAUSE .
12
13 DATED THIS 31ST DAY OF JULY, 2016 .
14
15
16
JESSICA DAVIS, CSR 12646
17
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JESSICA DAVIS, CSR 12646
ITEM NO. 4.2
AGENDA REPORT
Meeting Date: August 29, 2016
Subject: Conservation Update and Monthly Water Supply Report
ATTACHMENTS:
Nami_ Description: Type:
Water SUDDIV Reoort.Ddf Backup Material Backup Material
MUNICIPAL ,
w WATER
DISTRICT
OF
I, ORANGE
COUNTY
Memorandum
DATE: August 11, 2016
TO: Member Agencies— MWDOC Division One
FROM: Brett R. Barbre, Director— Division One
SUBJECT: Monthly Water Usage Data, Tier 2 Projection & Water Supply Information
The attached figures show the recent trend of water consumption in Orange County (OC),
an estimate of Tier 2 volume for MWDOC, and selected water supply information.
Fig. 1 OC Water Usaqe, Monthly by Supply OCWD Groundwater water was the
main supply in June.
Fig. 2 OC Water Usage, Monthly, Comparison to Previous Years Water usage in
June 2016 was low compared to the last 5 years with the exception of June
2015. Lower usage is primarily due to strong conservation efforts and
mandatory restrictions set by the Governor for the period of June 2015 to May
2016. In June 2016 all water conservation became voluntary for MWDOC
agencies.
Fig. 3 Historical OC Water Consumption OC water consumption is projected to be
494,000 AF in FY 2015-16 (this includes —15 TAF of agricultural usage and
non-retail water agency usage). This is about 71,000 AF less than FY 2014-15
and is about 121,000 AF less than FY 2013-14. Water usage per person is
projected to be was the lowest it has been for Orange County at 140 gallons
per day (This includes recycled water). Although OC population has
increased 20% over the past two decades, water usage has not increased, on
average. A long-term decrease in per-capita water usage is attributed mostly
to Water Use Efficiency (water conservation) efforts.
Fig. 4 MWDOC "Firm" Water Purchases, 2016 "Firm" water above the Tier 1 limit
will be charged at the higher Tier 2 rate. Our current projection of Tier 2
purchases is zero in 2016.
Water Supply Information Includes data on: Rainfall in OC; the OCWD Basin overdraft;
Northern California and Colorado River Basin hydrologic data; the State Water Project
(SWP) Allocation, and regional storage volumes. The data has implications for the
magnitude of supplies from the three watersheds that are the principal sources of water for
OC. Note that a hydrologic year is Oct. 1 st through Sept. 30tH
• Orange Countv's accumulated rainfall through July was well below average for this
period. This continues the impact of the previous four hydrologic years' below-
normal rainfall in reducing those local supplies that are derived from local runoff. EI
Nino conditions have diminished and NOAA is predicted a moderate chance of La
Nina for next winter (La Nina is generally associated with cool dry winters in
Southern California).
• Northern California accumulated precipitation in July was around 119% of normal for
this period. The Northern California snowpack is 97% of normal as of April 1 st. This
follows three below-average hydrologic years. The State of California has been in a
declared Drought Emergency since January 2014. The State Water Project
Contractors Table A Allocation is at 60% as of the end of June.
• Colorado River Basin accumulated precipitation in July was 96% average for this
period. The Upper Colorado Basin snowpack was 85% of normal as of April 15tH
This follows two below-average hydrologic years, the Colorado River Basin is in the
recovery of a long term drought. Lake Mead and Lake Powell combined have about
60% of their average storage volume for this time of year. If Lake Mead's level falls
below a "trigger" limit 1,075 ft. at the end of a calendar year, then a shortage will be
declared by the US Bureau of Reclamation (USBR), impacting Colorado River water
deliveries for the Lower Basin states. As of late June Lake Mead levels were slightly
below the "trigger" limit but fortunately levels are expecting to increase due to water
releases schedule at Lake Powell. The USBR predicts that the "trigger" level will not
be hit by the end of 2016.
WUA�ICIPAL Surface Water =Non-OCWD Groundwater
Fig. 1A OC Water Usage, Monthly by Supply iIIIIIIIIIIIIIIIIIIiRecycled (Non Potable) Import[1]
I-u— with projection to end of fiscal year °projected [3] =OCWD Basin [2]
—Rainfall
60,000 3.0
50,000 2.5
W
w40,000 2.0 W
� U
U C:
a 30,000 — 1 .5
20,000 1 .0
10,000 0.5
00.0
U') U') LO U') U') LO CO co c4 CO co CO
6) Qj > U C: -0i L >+ C:
Q (n O z 0 LL 2_� Q 2
[1] Imported water for consumptive use. Includes"In-Lieu"deliveries and CUP water extraction. Excludes"Direct Replenishment"deliveries of spreading water, "Barrier
Replenishment"deliveries,and deliveries into Irvine Lake.
[2] GW for consumptive use only. Excludes In-Lieu water deliveries and CUP water extraction that are counted with Import. BPP in FY'15-16 is 75%.
[3] MWDOC's estimate of monthly demand is based on the projected FY 15-16"Retail"water demand and historical monthly demand patterns.
[4] Total water usage includes IRWD groundwater agricutural use and usage by non-retail water agencies.
-M�N�=�a� =Surface Water =Non-OCWD Groundwater
A'�R Fig. 1 B OC Water Usage, Monthly by Supply oRecycled (Non Potable) Import[1]
oisrn�cr
': ORA OE
=== OOUNn with projection to end of fiscal year =OahD Bassin [2] =protected [3]
60,000 95
- 90
50,000
85
W
- "
4 40,000 - — 80 )
w Q
- 75E
a 30,000 — 9
70 -r-
0)
20,000 65 =
a)
60
10,000
55 Q
0 50
U-) U') U') U') U') U') co LO co CD LO co
Q U) O z 0 LL 2: Q 2
[1] Imported water for consumptive use. Includes"In-Lieu"deliveries and CUP water extraction. Excludes"Direct Replenishment"deliveries of spreading water, "Barrier
Replenishment"deliveries,and deliveries into Irvine Lake.
[2] GW for consumptive use only. Excludes In-Lieu water deliveries and CUP water extraction that are counted with Import. BPP in FY'15-16 is 75%.
[3] MWDOC's estimate of monthly demand is based on the projected FY 15-16"Retail"water demand and historical monthly demand patterns.
[4] Total water usage includes IRWD groundwater agricutural use and usage by non-retail water agencies.
L.1
WAERFig. 2A OC Monthly Water Usage [1]: Comparison to Last 4 Fiscal Partial Year
01=TRICTORANOE
COUNTY Years Subtotals
70,000 700,000
60,000 - 600,000 -
50,000 500,000 —
LL 40,000 400,000 -
W W
4
a 30,000 300,000 -
a
20,000 200,000
10,000 100,000
- 0 -
A.- > L L
Q (n 0 Z 0 U_ 2 Q 2
❑FY 11-12 ❑ FY 12-13 ❑FY 13-14 ❑ FY 14-15 ❑FY 15-16
[1] Sum of Imported water for consumptive use(includes"In-Lieu"deliveries; excludes"Direct Replenishment"and'Barrier Replenishment')and Local water for consumptive use
(includes recycled and non-potable water; excludes GWRS production,groundwater pumped to waste,and waste brine from water treatment projects.) Recent months numbers
include some estimation.
MUNICIPAL
WATER
UTFig. 213 Orange County Cumulative Monthly Consumptive Water Usage [1]:
ORA
NGE
E
CO.— present year compared to last 4 calendar years
650,000
600,000 CY 2012, 588 TAF
550,000 -
CY 2013, 605 TAF /
CY 2014, 612 TAF /
500,000 CY 2015, 515 TAF
450,000 - ICY 2016, ??? TAF /
I
400,000 /
LU
LU 350,000
w
W • •. •
L) 300,000 . - • . -
250,000
200,000
150,000
100,000
50,000
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
[1] Sum of Imported water for consumptive use(includes"In-Lieu"deliveries; excludes"Direct Replenishment"and'Barrier Replenishment')and Local water for consumptive use
(includes recycled and non-potable water; excludes GWRS production and waste brine from water quality pumping projects).
MUNICIPAL
WATIER
CT Fig. 3A HISTORICAL WATER CONSUMPTION[l] AND POPULATION[2] IN OC oConsumptiveWaterUse
OF
CO NTV Population
800,000 3.50
Strong Economy
750,000
- 3.00
700,000
- 2.50�
Weak Economy 2
tuw 650,000 Dry Year
2.00 0
W
Q 600,000 Dry Year Net Year Dry Year J_
Wet Year Wet Year
1.50 p
550,000 Wet Yeara
Wet Year
Wet Year
1.00
500,000
450,000 0.50
1 IJ400,000 1 [-1 1 i 11111 0.00
190 -'91 -'92 -'93 -'94 -'95 -'96 -'97 -'98 -'99 -'00 -'01 -'02 -'03 -'04 -'05 06 -107 -108 -109 - 10 11 12 13 14 15
91 92 93 94 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 -11 -12 -13 -14 -15 -16
Fiscal Year
[1] Consumption includes potable, recycled and non-potable usage; excludes Barrier and Spreading water. The most recent data involve some estimation.
[2] Population estimates in the 2000s decade were revised by the State Dept. of Finance to reflect the 2010 Census counts.
[3] Projection of FY 15-16 water use estimated by MWDOC based on partial-year data.
MUNICIPAL
WATER Consumptive
Fig. 313 HISTORICAL WATER CONSUMPTION[1]AND Annual Rainfall 2]
o
-= o1sTwlcr
= = copuNNTv IN OC S.A.Rainfall
I�I.III:al1::1iJ
750,000 35
Strong Economy
l�
700,000 30
650,000 Weak Economy 25 y
LL '
Q t
V
W C
:) 600,000 20
IAF, w
Lu S
Q �
550,000 15
500,000 10
T
450,000 5
400,000 0
190 -'91 -'92 -'93 -'94 -'95 -'96 -'97 -'98 -'99 -'00 -'01 -'02 -'03 -'04 -'05 -'06 -'07 -108 -109 10 11 12 13 14 15
91 92 93 94 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 -11 -12 -13 -14 -15 -16
Fiscal Year
[1] Consumption includes potable, recycled and non-potable usage; excludes Barrier and Spreading water. The most recent data involve some estimation.
[2] Rainfall data from Santa Ana Station#121
Ma ..�ar=P Fig. 3C HISTORICAL WATER CONSUMPTION[1] AND Annual Average High Consumptive Water
-" oisraicr
aF ti�E __0_High Temp
E
Temperature[21 IN OC
750,000 85
Strong Economy - 84
i
700,000 - 83
- 82
650,000 Weak Economy 81 ai
LL
a I I' 80 0
LU
600,000 79 2
- 78 fl-
w £
a - 77
550,000C11,
76
x
- 75
500,000 _ a
74
73
450,000
72
71
400,000 70
90 -'91 -'92 -'93 -'94 -'95 -'96 -'97 -'98 -'99 -'00 -'01 -'02 -'03 -'04 -'05 -'06 -'07 -'08 -'09 10 11 12 13 14 15
91 92 93 94 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 -11 -12 -13 -14 -15 -16
Fiscal Year
[1] Consumption includes potable, recycled and non-potable usage; excludes Barrier and Spreading water. The most recent data involve some estimation.
[2] Temperature data is from Santa Ana Fire Station,elevation 135'
WATER MUNICIPAL Fig. 3D HISTORICAL WATER CONSUMPTION[1] AND Average Unemployment[2] IN
DISTRICT
of
ORANGE O C
COUNTY
750,000 0%
o Consumptive Water Use
Strong Economy 1%
--0—Unemployment% ,
700,000 2%
Weak Economy 3%
650,000 4%
Q 5%
Lu0
600,000 6/° g
a
7'/o e
Wo
a 8%
d
550,000 9%01 c
10% £
500,000 oo/01 W
11%
12%
450,000 139/(
14%
400,000 15%
'90 -'91 -'92 -'93 -'94 -'95 -'96 -'97 -'98 -'99 -'00 -'01 -'02 -'03 -'04 -'05 -'06 -'07 -'08 -109 10 11 12 13 14 15
91 92 93 94 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 -11 -12 -13 -14 -15 -16
Fiscal Year
[1] Consumption includes potable, recycled and non-potable usage; excludes Barrier and Spreading water. The most recent data involve some estimation.
[2] Employment Data source Bureau of Labor Statistic for Long Beach-L.A.-Santa Ana Metro Area
httpj/www.bls.Rov/lau//www.bls.eov/lau
MUNICIPAL
aP9TRCT J Fig. 3E HISTORICAL WATER CONSUMPTION[1] AND POPULATION DENSITY[2] IN OC
ORANGE J
ODUN-
750,000 4,000
o Consumptive Water Use
Strong Economy
00,000 Population Density 4"
7Dry Year
Dry Year 3,750
650,000 Wank Fconom
Q
W
at Year N
600,000 Dry Year
ll' Wet Year LL
LU at Year
3,500 m
� a
Q Wet Year p
550,000 a
Net Year Wet Year
T
.y
500,000 m
3,250 Z
O
450,000 J
a
O
400,000 A/_ 3,000 IL
190 -'91 -'92 -'93 -'94 -'95 -'96 -'97 -'98 -'99 -'00 -'01 -'02 -'03 -'04 -'05 -106 -107 -108 -109 10 11 12 13 14 15
91 92 93 94 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 -11 -12 -13 -14 -15 -16
Fiscal Year
[1] Consumption includes potable, recycled and non-potable usage; excludes Barrier and Spreading water. The most recent data involve some estimation.
[2] Population estimates in the 2000s decade were revised by the State Dept. of Finance to reflect the 2010 Census counts.
WATER'PALFig. 3F HISTORICAL WATER CONSUMPTION[l] AND GPCD [2] IN OC oConsumptiveWaterUse
+- � ORANGE
couniTv GPCD
750,000 240
Strong Economy
230
700,000
220
�� Weak Economy 210
650,000 �
0
Q 200 a
W
600,000 190
Lu 'bN
180
Q
550,000 170
160
500,000
150
450,000 140
6L �
130_
400,000 120
190 -'91 -'92 -'93 -'94 -'95 -'96 -'97 -'98 -'99 -'00 -'01 -'02 -'03 -'04 -'05 -'06 -'07 -'08 -'09 10 11 12 13 14 15
91 92 93 94 95 96 97 98 99 00 01 02 03 04 05 06 07 08 09 10 -11 -12 -13 -14 -15 -16
Fiscal Year
[1] Consumption includes potable, recycled and non-potable usage; excludes Barrier and Spreading water. The most recent data involve some estimation.
[2] Gallon per Capita Daily(includes all types of water usage and all type of water users).
Fig. 4 MWDOC's Firm Water Purchases in CY 2016 oUntreated Total oTreated
Monthly Actual and Projected to CY Total Proj Monthly Purchases Cumulative Actual
30,000 350,000
Tier I 300,000
25,000
X41.0 250,000
20,000
i� do r g
do 200,000
15,000
m
T 150,000 E
U
0 10,000
4V 100,000
Projected
5,000 6 Year Monthly MAX 50,000
00000 NO _
000 00000 6 Year Monthly Avg
6 Year Monthly Low
f I 1 I
Jan-16 Feb-16 Mar-16 Apr-16 May-16 Jun-16 Jul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16
Notes
1. "Firm"includes Full Service(both Treated and Untreated)and Barrier water.
2. Basin Pumping Percentage(BPP)is the percentage of a retail water agency's total water demand that they are limited to pump from the OCWD-managed groundwater basin. BPP pertains to Basin agencies only. For
example,if a Basin agency's total demand is 10,000 AF/yr and OCWD sets the BPP at 72%,then the agency is limited to 7,200 AF of groundwater that year. There may be certain exceptions and/or adjustments to that
simple calculation. OCWD sets the BPP for the Basin agencies,usually as of July 1st.
MUNICIPAL
WATER prepared by the Municipal Water District of Orange County printdate 7/26/2016
-u DISTRICT
OF *numbers are subject to change
ORANGE
COUNTY
IF
Accumulated Precipitation
for the Oct.-Sep. water year, through late July 2016
This Year to date ■ Average to date Average End of Year
= Percent of Average to Date
60 119%
55 CA Snowpack
50 on 4/1/2016 Colorado
45 Snowpack on
4/15/2016
40
a,
35 97%
30 96%
25
20 85
15
10 49
0
ORANGE N. SIERRAS 8- NORTHERN UPPER BASIN UPPER BASIN
COUNTY STATION INDEX CALIF. COLORADO COLORADO
(SANTA ANA) ASNOWPACK PRECIP. SNOWPACK
1nuro1c1pAi_ *The date of maximum snowpack accumulation (April 1st in Northern Calif., April 15th in the
WATER
oFTR'�T Upper Colorado Basin) is used for year to year comparison.
ORANGE
GOUMMVY
MUNICIPAL
WATER
SWP TABLE A ALLOCATION
_. DISTRICT
ORANGE
-- COUNTY FOR STATE WATER PROJECT CONTRACTORS
65% 65% Final 2012: 65%
60% 605'
60% � ' Final 2016: 60%
60% 60% 60%
0% 50%
40% 40% 40% 5 0
o
35% q,c,o� 35/0 ° Final 2013: 35%
30° 0°
20% 20% 20% 20%
15%-15° 15% a Final 2015: 20%
000
10% 10
11.,1 10% 5% 5%
5°
5/° Final 2014: 5%
5%� 0% °0/o
0
Nov. Dec. Jan. Feb. Mar. Apr. May Jun.
In =Water Year 2012 - -Water Year 2013 m mWater Year 2014 - -Water Year 2015 mWater Year 2016
11 Imported Water Deliveries Vs. California Population Growth
"o�tir. 1
2003,CRA QSA is signed lowering _ 45
CD R CRA usage to 4.4 MAF N
0 500 " v
Q - 40 .o
x =
LL 400
Q / - 35r
U) O
300 - 30 M
o
200 2008,ESA results in Delta Pumping 25 a
restrictions e0
d �
0 100 - 204-
CL
E U
0 - 15
'6`b °�1° �1`� 1I" 01 0 ` ��1 ( ° ° ° � " � 41 ° ° ° ' � ` " l" & °Y ° b
Nq Nq N ' N� N� � � � � � N� Nq TZ V V � � ° '°
=CA Population Total SWP Deliveries —CRA Deliveries to MWD —CRA Deliveries to CA
SWP as only
SWP Allocation % Vs. Station 8 Accumulated Rainfall been 100%tonce
since the
100% year 2000
100% � 100% 100 �
90% - so% 1r 00 100 so% 90% 90% 90
100rl
80% I 80 O
,o° A I I II[V1 70% 70
O /0 / I 1 65% 1 65%
60% M60^ U p
vo 50% VIV 1/ 50% 50% 50 r
45% a M
40% 40 'o _
a 40% 39% 35% 20% i L
30% 30% 35% - 30 IL 2
o _ 20
o Natural Accumulated Run a U
10% Off - 10 E
0% Tr—. s% - 0 v
°° °° °�ti °�° °,�° °�° °�° °�ti °�°` °�,° °�,��g°° °°ti °°°` °°° °°° °°°�°°tip°°°` °°° °°� °,�° °,ti�°N°` °,�° a
=Station 8 Accumulated Rainfall (Inches) —SWP Allocation %
State Water Proiect, Colorado River, and MWD Reservoir Storage 25 - Lake Powell
as of July 25th,2016
20
Lake Shasta -
Lake Oroville •• ,�
4.0 15 - LL h ii h41�
4.0
3.0 LL
3.0 `
10 Q
2.0 56%
1.0 70
- ° 74
2.0 5
1.0 180% 0.0 0 - _ -
0.0
2.5 San Luis Resv.
2.0 LLLake Mathews
1.5 bf 1 87
1.0.5 ° 0. Lake Mead
o.o 20oo 25
Diamond Valley 20
aj
�Ir
1.0 57% - 15 v
0.5 bili'
0.0 �lO
10•
0
of Capacity 5 °
36
• of Historical Avg.
0
_ <<.D1,1 o,
WATER
MIWYRII O.C. Basin Accumulated Overdraft
DISTRICT
= OF
oRo�1;E Annual, 1969 to Present
counlTv
50,000 Basin Full in 1969
373,500 AF end of June 2016
100,000
150,000
200,000
a
a
250,000
a
300,000
350,000
400,000
450,000 sin volume
filledwith water GWRS Online Jan 2008
500,000
01 O 1-I N M V 1A W 1, 00 01 O N N M V 111 W n 00 01 O Iq N M 111 W 1, 00 01 O Iq N M 1A W n 00 01 O N N M V 111 W
l0 1� n n n n n n n n n 00 00 00 00 00 00 00 00 00 00 01 01 01 01 01 01 01 01 01
M O 0 0 0 0 0 0 0 0 0 0 N N N N N N
O O 01 01 O 01 01 O O 01 01 O 01 01 01 01 01 01 01 01 01 01 01 01 01 01 01 01 01 01 01 O O O O O O O O O CD O O O O O O O
a-I N N N N N N N N N N N N N N N N N
-Accumulated Overdraft (dewatered volume)shown as white area,excluding the volume stored by Metropolitan.source:OCWD
Acre-Feet
lfl A A W W N N
O In O In O In O In O In
O O O O O O O O O O
O O O O O O O O O O
O O O O O O O O O O
O O O O O O O O O O
1969 DOOM
1970 c
CD ii?
za Ilan
1971 �m D
1972 �+
1973
1974
1975
1976 d n
1977 3
1978
: 1979 3'
n 1980 D
CD
1981 �p A
c 1982 C
1983 3
o C
rb
1984
8 D
0 1985 rr+
1986
f 1987
O
b 1988 G
a 1989 • o
1990 Q
1991 „ m
1992
o r-r
1993 C
° 1994
1995 D
0 1996
1997`=------ c
D - fu
1998
1999 ----- -
s 2000
0 2001
2002
�° 2003
Et
2004 --
2005
2006 -,-_>-------------
2007 - --- I
° 2008 - <� v a o
p^ W = m o
2009in ,� m
N — J.
p Q N Q
c 2010 ` "T A m O
_ D
2011 ,' oN �, ' < a
r) 2012 ----- -- rn — —y
COM
0 2013s
2014
�' ID
2015
2016 - �... ... .. ......�
O Ul
O n O n O
Annual Rainfall(inches)
ol
If I_ MLJNI=IPAL O.C. Basin Accumulated Overdraft Vs. BPP % ®Stored red Vol
WATER
_ OF TRICT O Dewatered Vo (AF)
., =FLINTY Annual, 1999 to Present -<= BPP% w
A
90%
50,000
75% 75% 75% 75% 74% ���. \\ 75/0 80%
72%
100,000 \\.\ 69% •�� \
150,000 %�,,.__
60%
200,000
50%
V
w
w 250,000 a
a
40%
300,000
30%
350,000
20%
400,000
450,000 • • • 10%
•
500,000 0%
01 O ati N M R Ln LO n 00 0) O e-i N M Ln LO
01 O O O O O O O O O O
M O O O O O O O O O O O O O O O O O
N N N N N N N N N N N N N N N N N N
Accumulated Overdraft (dewatered volume)shown as white area,excluding the volume stored by Metropolitan.source:OCWD
VI,ATERIPALO.C. Basin Accumulated Overdraft Vs. Annual Rainfall �5toredVol(AF)
DISTRICT
aF O Dewatered Vol(AF)
AnnualAil, 1999 to Present Annual Rainfall(Inches)
50,000
30
100,0001
150,000 25
.p
200,000 R,
- v
20
w t
w 250,000 —
15
3 00,000 3
+, c
350,000 10
-�, - -
s
400,000
5
450,000 •
- • GWIRS Online Jan 2008
500,000 0
0) O .••1 N M -e M to P 00 0) O ai N M to O
01 O O O O O O O O O O rl ai ai rl e•I ei N
Ol O O O O O O O O O O O O O O O O O
�••I N N N N N N N N N N N N N N N N N
Accumulated Overdraft (dewatered volume)shown as white area,excluding the volume stored by Metropolitan.source:OCW D
MLJN.0-
Lake Mead Levels: Historical and Proiected ''rr` osTR;=T
COUNTY
1,180
projection per USBR 24-Month Study
D Historical ElProjected
1,170
1,160
1,150
1,140
1,130
LL
c 1,120
4.
m
_a', 1,110
W
1,100 I
1,090
Shortage Trigger=1,075 ft
1,080
1,070
1,060
1,050
Jan 02 Jan 03 Jan 04 Jan 05 Jan 06 Jan 07 Jan 08 Jan 09 Jan 10 Jan 11 Jan 12 Jan 13 Jan 14 Jan 15 Jan 16 Jan 17 Jan 18
MUNICIPAL
Lake Mead Historical Water Elevation Level DISTRICT
OF
ORANGE
------------'' COUNTY
1,250 Historic Peak July 1983 @
1,225 Feet
1,200
1,150
v
LL
v
> 1,100 Shortage Trigger 1,075 Feet
v
-------------------------------------------------- -17------------------------------------------N
>
O
a 1,050
0
co
ca
- 1,000
Historical Low(Since Filled)
950 June 2016 @ 1,071 Feet
900 -
ti(�$'3 ti�$� ti()43 ti��� tipoP ti(36, tib\" ti6\",3