BILL ANALYSIS                                                                                                                                                                                                    Ó



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          ASSEMBLY THIRD READING


          AB  
          656 (Cristina Garcia)


          As Amended  May 4, 2015


          Majority vote


           ------------------------------------------------------------------- 
          |Committee       |Votes |Ayes                 |Noes                 |
          |                |      |                     |                     |
          |                |      |                     |                     |
          |----------------+------+---------------------+---------------------|
          |Local           |9-0   |Maienschein,         |                     |
          |Government      |      |Gonzalez, Alejo,     |                     |
          |                |      |Chiu, Cooley,        |                     |
          |                |      |Gordon, Holden,      |                     |
          |                |      |Linder, Waldron      |                     |
          |                |      |                     |                     |
          |----------------+------+---------------------+---------------------|
          |Appropriations  |14-1  |Gomez, Bigelow,      |Gallagher            |
          |                |      |Bloom, Bonta,        |                     |
          |                |      |Calderon, Chang,     |                     |
          |                |      |Eggman, Eduardo      |                     |
          |                |      |Garcia, Holden,      |                     |
          |                |      |Quirk, Rendon,       |                     |
          |                |      |Wagner, Weber, Wood  |                     |
          |                |      |                     |                     |
          |                |      |                     |                     |
           ------------------------------------------------------------------- 


          SUMMARY:  Allows a mutual water company and a public agency to  
          enter into a joint powers agreement for the provision of insurance  








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          and risk-pooling.  Specifically, this bill:  


          1)Allows a mutual water company and a public agency to enter into  
            a joint powers agreement (JPA) for the purpose of risk-pooling  
            and the provision of technical support, continuing education,  
            safety engineering, and operational and managerial advisory  
            assistance to be provided to the members of that JPA for the  
            purpose of reducing risk liabilities.


          2)Allows a mutual water company and a public agency to form a JPA  
            to provide insurance by any or all of the following methods: 


             a)   Self-insurance, which may be, but is not required to be,  
               funded by appropriations to establish or maintain reserves  
               for self-insurance purposes;


             b)   Insurance in any insurer authorized to transact such  
               insurance in this state; and,


             c)   Insurance secured in accordance with existing law  
               governing surplus line brokers.


          3)Allows a mutual water company and a public agency to be  
            coinsured under a master policy and allows the total premium to  
            be prorated among those entities.


          4)Specifies that, for the purposes of this bill, "mutual water  
            company" has the same meaning as the term does in existing law  
            governing mutual water companies.


          EXISTING LAW:  








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          1)Specifies that any corporation organized for or engaged in the  
            business of selling, distributing, supplying, or delivering  
            water for irrigation purposes or for domestic use must be known  
            as a mutual water company.


          2)Defines a "public water system" to mean a system for the  
            provision of water for human consumption through pipes or other  
            constructed conveyances that has 15 or more service connections  
            or regularly serves at least 25 individuals daily at least 60  
            days out of the year.  A public water system includes the  
            following:


             a)   Any collection, treatment, storage, and distribution  
               facilities under control of the operator of the system that  
               are used primarily in connection with the system;


             b)   Any collection or pretreatment storage facilities not  
               under the control of the operator that are used primarily in  
               connection with the system; and,


             c)   Any water system that treats water on behalf of one or  
               more public water systems for the purpose of rendering it  
               safe for human consumption.


          3)Requires each mutual water company operating as a public water  
            system to, no later than December 31, 2012, submit to the  
            Secretary of State and the local agency formation commission  
            (LAFCO) a map depicting the boundaries of the property that the  
            company serves.


          4)Requires a mutual water company that operates a public water  








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            system, if the LAFCO or a county department requests  
            information, to provide within 45 days of a request all  
            reasonably available, non-confidential information and explain,  
            in writing, why any requested information is not reasonably  
            available.


          5)Requires a mutual water company that operates a public water  
            system to maintain a financial reserve fund to be used for  
            repairs and replacements to its water productions, transmission  
            and distribution facilities at a level sufficient for continuous  
            operation of facilities in compliance with the federal Safe  
            Drinking Water Act.


          6)Authorizes a LAFCO to approve with or without amendment, wholly,  
            partially, or conditionally or disapprove the annexation of  
            territory served by a mutual water company operating as a public  
            water system to a city or special district.


          7)Authorizes a LAFCO, in conducting a service review, to include a  
            review of whether the agencies under review, including any  
            public water system, are in compliance with the California Safe  
            Drinking Water Act (SDWA).


          8)Authorizes a LAFCO to request information, as part of a service  
            review, from identified public or private entities that provide  
            wholesale or retail supply of drinking water, including mutual  
            water companies and private utilities.


          9)Requires each board member of a mutual water company operating  
            as a public water system to complete a four-hour course  
            regarding the duties of board members within six months of  
            taking office, as specified.










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          10)Authorizes fines pursuant to the SDWA to be imposed on  
            directors of a mutual water company if the mutual water company  
            has received notice of a violation, as specified.


          11)Establishes, pursuant to the Mutual Water Company Open Meeting  
            Act, increased transparency requirements for mutual water  
            companies that operate a public water system, and allows mutual  
            water companies to impose liens to collect unpaid charges.


          12)Allows, pursuant to the Joint Exercise of Powers Act (JPA Act),  
            two or more public agencies by agreement to jointly exercise any  
            power common to the contracting parties, as specified, if  
            authorized by their legislative or other governing bodies.  


          13)Defines, for purposes of the JPA Act, public agency to mean  
            "the federal government or any federal department or agency,  
            this state, another state or any state department or agency, a  
            county, county board of education, county superintendent of  
            schools, city, public corporation, public district, regional  
            transportation commission of this state or another state, a  
            federally recognized Indian tribe, or any joint powers authority  
            formed pursuant to the JPA Act by any of these agencies."


          14)Allows a mutual water company to enter into a JPA with any  
            public agency for the purpose of jointly exercising any power  
            common to the contracting parties.


          15)Allows two or more local public entities, by a JPA, to provide  
            insurance coverage or self-insurance, or to obtain insurance  
            coverage by means of a reciprocal or inter-insurance exchange.   
            JPAs offer self-insurance coverage on a pooled basis for a  
            variety of purposes, including liability (malpractice and  
            officers and directors coverage), workers' compensation, health  
            insurance and property coverage. 








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          16)Allows a nonprofit hospital corporation affiliated with a  
            hospital district to participate in a self-insurance pool formed  
            by two or more hospital districts to pool their self-insurance  
            claims or losses.


          17)Allows two or more local public entities having the same  
            governing board to be coinsured under a master policy and allows  
            the total premium to be prorated among those entities.


          18)Provides that the pooling of self-insured claims or losses  
            among local public entities shall not be considered insurance  
            nor be subject to regulation under the Insurance Code.


          19)Allows any liability or loss under a JPA for the pooling of  
            self-insured claims or losses to be reinsured to the same extent  
            and the same manner as insurance provided by an insurer.


          20)Provides that, where a JPA provides for the pooling of  
            self-insured claims or losses among entities, if any peril  
            insured or covered under contract has existed, and the JPA or  
            other parties to the pool have been liable for any period,  
            however short, the agreement may provide that the party insured  
            or covered under contract is not entitled to the return of  
            premiums, contributions, payments, or advances so far as that  
            particular risk is concerned.


          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee, no state costs.  Costs to local agencies to form JPAs  
          are not reimbursable.


          COMMENTS:  








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          1)Bill Summary.  This bill allows a mutual water company and a  
            public agency to: 


             a)   Form a JPA for risk-pooling and the provision of technical  
               support, continuing education, safety engineering,  
               operational and managerial advisory assistance for the  
               purpose of reducing risk liabilities;


             b)   Form a JPA to provide insurance, as specified, and; 


             c)   Be coinsured under a master policy and to prorate the  
               total premium among themselves.


            This bill is sponsored by the California Association of Mutual  
            Water Companies.


          2)Author's Statement.  According to the author, "Over 400 mutual  
            water companies in California were once eligible for insurance  
            coverage provided by the Association of California Water  
            Agencies Joint Powers Insurance Authority (ACWA-JPIA).  This  
            structure afforded mutual water companies relatively inexpensive  
            insurance, as well as resources through ACWA that were made  
            possible by residuals of revenue that are exempt from taxes, and  
            that would have otherwise been assessed through regular  
            market-based insurance.  Due to IRS regulations, several years  
            ago, the ACWA-JPIA determined that mutual water companies were  
            no longer eligible to participate in ACWA-JPIA's insurance  
            programs, and thus mutual water companies were excluded from the  
            coverage and benefits they once enjoyed.  


            "Mutual water companies are not-for-profit public water systems  








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            organized under the state Corporations Code.  The vast majority  
            of mutual water companies in California are small, with many  
            serving less than 3,000 connections and/or less than 3,000  
            residents.  Many mutual water companies serve 'economically  
            disadvantaged' areas and do not have access to low cost  
            insurance and other services, such as those available to special  
            districts under ACWA-JPIA or other joint powers agency insurance  
            programs.  Today, mutual water companies must purchase higher  
            cost insurance in the open market, and many are not provided the  
            opportunity to easily obtain other services that could assist  
            them in building operational and managerial capacity."  


          3)Background.  Public water systems that deliver domestic water  
            generally fall into three categories:


             a)   Local agencies (cities and special districts).  LAFCOs  
               control the cities and special districts' boundaries and  
               local officials are responsible to their voters for their  
               water rates;


             b)   Investor-owned public utilities.  The California Public  
               Utilities Commission (PUC) controls the companies' service  
               areas and their water rates; or,


             c)   Mutual water companies.  These private entities, formed  
               under statutes governing corporations, respond to their  
               shareholders, usually the landowners who receive water  
               service.  Neither LAFCOs nor the PUC regulate mutual water  
               companies.


            The State Department of Public Health and some county health  
            departments monitor the quality of drinking water delivered to  
            most households, regardless of the type of public water system  
            that delivers the water.








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            Most mutual water companies are organized pursuant to the  
            General Corporation Law or the Nonprofit Mutual Benefit  
            Corporation Law.  Shareholders in a mutual water company hold a  
            right to purchase water from the company.  Stock in a company is  
            usually linked to the ownership of a parcel served by the  
            company and transfers with the land when the parcel is sold to  
            successive owners.  This type of corporate structure allows  
            landowners to establish, essentially, a customer-owned water  
            provider to serve their properties.


            Governance of a mutual water company is generally limited to  
            shareholders, or members, of the company.  While the details of  
            any particular company's governing structure are determined by  
            its articles and bylaws, most mutual water companies allow only  
            shareholders and members to vote on organizational matters and  
            serve on the company's governing board.


          4)Joint Exercise of Powers Act.  JPAs have existed in California  
            for nearly 100 years, and were originally created to allow  
            multiple local governments in a region to pool resources to meet  
            common needs.  The Act authorizes federal, state and local  
            agencies to create and use a JPA, which is a legal document that  
            allows the contracting parties to exercise powers that are  
            common to all of the contracting parties.  A JPA can be  
            administered by one of the contracting agencies, or it can be  
            carried out by a new, separate public entity called a joint  
            powers authority (JPA).


            JPAs are an attractive tool for local governments because they  
            facilitate more efficient service provision through  
            collaboration, and they allow local entities to issue bonds  
            without voter ratification.  Public officials have created about  
            700 JPAs statewide.  There are a few, limited instances in JPA  
            law allowing non-governmental entities (private hospitals or  








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            tribes) to join a JPA with a public agency partner.  There are  
            no instances of JPAs with only private entities as members.


          5)JPAs and Mutual Water Companies.  Existing law allows a mutual  
            water company to enter into a JPA with any public agency for the  
            purpose of jointly exercising any power common to the  
            contracting parties.  This authority was established by AB 2014  
            (Cortese), Chapter 250, Statutes of 1994.  According to the  
            Assembly concurrence analysis, "The (bill is) sponsored by the  
            Association of California Water Agencies.  The Association feels  
            this authority will facilitate arrangements among water entities  
            to improve the management of the state's water resources, such  
            as groundwater management, development of water conservation or  
            reclamation programs, or compliance with water quality  
            regulatory requirements."


            At that time, the proposal was considered unusual.  According to  
            an analysis of AB 2014 by the Senate Agriculture and Water  
            Committee, "The proposed joint powers agreements between public  
            and private entities appear to be without substantial precedent  
            and may raise uncertain issues regarding access to public moneys  
            by private companies and the applicability of open meeting laws  
            which, in general, do not apply to private concerns."


            Nonetheless, AB 2014 became law, and mutual water companies have  
            the authority to form a JPA with any public agency for the  
            purpose of jointly exercising any power common to the  
            contracting parties.


          6)Insurance/Risk-Pooling, JPAs and Local Agencies.  Existing law  
            allows two or more local public entities, by a JPA, to provide  
            insurance coverage or self-insurance, or to obtain insurance  
            coverage by means of a reciprocal or inter-insurance exchange  
            (risk-pooling).  JPAs offer self-insurance coverage on a pooled  
            basis for a variety of purposes, including liability  








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            (malpractice and officers and directors coverage), workers'  
            compensation, health insurance and property coverage. 


            The law also allows a nonprofit hospital corporation affiliated  
            with a hospital district to participate in a self-insurance pool  
            formed by two or more hospital districts to pool their  
            self-insurance claims or losses.  In addition, two or more local  
            public entities having the same governing board may be coinsured  
            under a master policy, with the total premium to be prorated  
            among those entities.


            Any liability or loss under a JPA for the pooling of  
            self-insured claims or losses can be reinsured to the same  
            extent and the same manner as insurance provided by an insurer.   
            When a JPA provides for the pooling of self-insured claims or  
            losses, if any peril insured or covered under contract has  
            existed, and the JPA or other parties to the pool have been  
            liable for any period, the agreement may provide that the party  
            insured or covered under contract is not entitled to the return  
            of premiums, contributions, payments, or advances so far as that  
            particular risk is concerned.   


            Pooling of self-insured claims or losses among local public  
            entities is not considered insurance and is not subject to  
            regulation under the Insurance Code.


            This bill asks for the same authority for mutual water companies  
            with a public agency partner.  According to the sponsor, a JPA  
            is not subject to insurance regulations or premium taxes so it  
            can set more competitive premiums and offer expanded coverage.   
            Funds that would otherwise pay for insurance regulatory  
            compliance and taxes would remain as "residuals" to be used for  
            support services for the JPA's members.  










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          7)Recent Legislative History: Mutual Water Companies.  In response  
            to concerns that some mutual water companies lacked capital to  
            pay for needed water quality improvements and the managerial  
            capacity to operate successful public water systems, the  
            Legislature passed AB 54 (Solorio), Chapter 512, Statutes 2011.   
            AB 54 established training requirements for mutual water  
            districts' board members regarding the duties of board members,  
            made mutual water companies liable for specified fines and  
            penalties for violating the California Safe Drinking Water Act,  
            and expanded LAFCOs' authority to review matters related to  
            mutual water companies.
            More recently, AB 240 (Rendon), Chapter 633, Statutes of 2013,  
            increased transparency requirements for mutual water companies  
            by enacting the Mutual Water Company Open Meeting Act.  AB 240  
            also allowed mutual water companies to impose liens to collect  
            unpaid charges.  While AB 240's requirements opened the meetings  
            of mutual water companies to "eligible persons," these  
            requirements are far more limited than the requirements of the  
            Ralph M. Brown Act (Brown Act).


          8)Recent Legislative History: JPAs.  AB 2046 (Gomez) of 2014 would  
            have authorized a JPA to issue bonds and enter into loan  
            agreements for the financing or refinancing of a private project  
            located outside of the state under specified conditions, until  
            January 1, 2021.  This bill raised a number of concerns  
            regarding the appropriate purposes and activities of JPAs, such  
            as allowing the issuance of tax-exempt bonds for private  
            projects outside of the state, severing the geographical nexus  
            between a bond-issuing JPA and the jurisdiction in which a local  
            agency project is located, and others.  AB 2046 was held in the  
            Senate Appropriations Committee.
          9)Policy Considerations.  The Legislature may wish to consider the  
            following:


             a)   Insurance Services.  This bill allows mutual water  
               companies to get into the business of insurance, without  
               regulation under the Insurance Code.  The Legislature may  








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               wish to consider whether this is an appropriate activity for  
               mutual water companies.


             b)   Necessity.  Existing law allows mutual water companies to  
               form a JPA with any public agency for the purpose of jointly  
               exercising any power common to the contracting parties.  It  
               is not clear that this authority is insufficient to allow  
               mutual water companies to achieve the purposes of this bill.   
               In addition, as private corporations, mutual water companies  
               can already join together and pool their resources and  
               expertise to effect whatever legal purposes they devise.  The  
               Legislature may wish to consider whether this bill is  
               necessary.


          10)Related Legislation.  AB 1077 (Holden) of the current  
                                            legislative session pending in the Assembly, makes a number of  
            changes to the Mutual Water Company Open Meeting Act.


            AB 617 (Perea) of the current legislative session, pending in  
            the Assembly, modifies portions of last year's Sustainable  
            Groundwater Management Act (SGMA), including, among other  
            things, provisions that allow mutual water companies to join  
            Groundwater Sustainability Agencies (GSA) formed by one or more  
            public agencies pursuant to a JPA, and to exercise all of the  
            GSA powers provided by SGMA.


          11)Arguments in Support.  The California Association of Mutual  
            Water Companies, the sponsor of this bill, states, "Under the  
            proposed legislation?the liability protection product would not  
            be considered 'insurance' and, thus, would not be subject to  
            taxation.  The residuals from sales of that product would then  
            revert to the (JPA) to be put to use in providing management,  
            technical and operational assistance, including grant writing,  
            legal compliance and financial management training, to the  
            participating mutual water companies.  While we are grateful for  








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            greater levels of public aid for small water systems that have  
            been provided recently, this is a novel measure that will  
            further help mutual water companies use our own resources to  
            help each other."  


          12)Arguments in Opposition.  None on file.




          Analysis Prepared by:                                               
                          Angela Mapp / L. GOV. / (916) 319-3958  FN:  
          0000469