Liquid loophole?

Heavy water users opposed to statewide conservation efforts are using California's Proposition 218 as a tool to undermine water agencies' pricing tiers, which charge more to higher-consumption customers. The measure, passed in 1996, requires voter approval of "tax, assessment, fee and charge increases" by state and local government agencies.

Last April, an appellate court found tiered water rates charged in San Juan Capistrano to be unconstitutional. Following that decision, local resident Mark Coziahr last week launched a class-action suit against Metropolitan Water District of Southern California, the San Diego County Water Authority, and Otay Water District, which serves a large swath of East County and South County.

Coziahr's argument hinges on a portion of the measure's text, which reads "Revenues derived from the fee or charge shall not exceed the funds required to provide the property related service."

Both Metropolitan and Otay (though not the San Diego County Water Authority) have three rate tiers, wherein larger consumers of water are charged at a higher per-unit rate than lower-consumption customers. If these higher rates result in revenues higher than the cost of actually providing services, the agencies would be in violation of the state law.

Coziahr is seeking an order declaring the rate structures unconstitutional and an injunction blocking the agencies from charging based upon the existing system. A similar case is currently pending in Marin County.

Interestingly, the county water authority has, with some success, used the same argument in its ongoing battles with the Los Angeles–based Metropolitan.

Contacted by Courthouse News Service, Andre Mura, a lawyer with the firm representing Coziahr, explained that "The California Constitution expresses the people's view that water conservation is achieved by pricing that reflects the actual cost of water delivery service to a given property. This suit seeks to enforce the water conservation policies adopted by the people."