BILL ANALYSIS Ó
AB 2470
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Date of Hearing: April 20, 2016
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Susan Talamantes Eggman, Chair
AB 2470
(Gonzalez) - As Amended April 12, 2016
SUBJECT: Municipal water districts: water service: Indian
tribes.
SUMMARY: Requires a municipal water district, upon request of
an Indian tribe, to provide water service to a tribe's land
outside the district. Specifically, this bill:
1)Requires, notwithstanding any other provision of law, a
municipal water district, upon request of an Indian tribe and
the satisfaction of the conditions stated in 3), below, to
provide water service to the tribe's lands that are not within
a district, if the Indian tribe's land meet all of the
following requirements:
a) The lands were owned by the tribe on January 1, 2016;
b) The lands are contiguous with at least two districts;
c) The lands lie within the special study area of at least
one district; and,
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d) At least 70% of the Indian tribe's total Indian lands
are currently within the boundaries of one or more
districts.
2)Requires a district to provide water service, upon request of
an Indian tribe, at substantially the same terms applicable to
the customer of the district to an Indian tribe's lands that
are not within the district, as if the lands had been fully
annexed within the district, and any other special districts
required for the provision of water service.
3)Requires the Indian tribe, before a district provides water
service, to satisfy both of the following conditions:
a) The Indian tribe complies with all federal and tribal
laws; and,
b) The Indian tribe acquires all federal and tribal
approvals necessary for the applicable district to provide
water service to the tribal lands on substantially the same
terms applicable to customers of the district.
4)Deems, if a district provides water service to an Indian
tribe's lands pursuant to this bill, the service areas of the
district and of any public agency providing water to the
district include the Indian tribe's lands for the longest of
the following periods of time:
a) The time water service is provided by the district to
the Indian tribe;
b) The time moneys are owed by the Indian tribe to the
district for water service; and,
c) The term of any agreement between the district and the
Indian tribe.
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5)Requires an Indian tribe that is provided water service
pursuant to this bill to make all required payments, including
service payments, as if it were annexed into a district's
service area. Provides that payments are a condition of
continued water service by the district pursuant to this bill.
6)States that no reimbursement is required by this bill because
a local agency or school district has the authority to levy
service charges, fees, or other assessments sufficient to pay
for the program or level of service mandated by this bill.
EXISTING LAW:
1)Defines district to mean a municipal water district formed,
pursuant to the Municipal Water District Act of 1911.
2)Authorizes a municipal water district to sell water under its
control, without preference, to cities, other public
corporations and agencies, and persons within the district for
use within the district. Defines "water" to include potable
and nonpotable water.
3)Authorizes a municipal water district to supply and deliver
water to property not subject to district taxes at special
rates, terms, and conditions as determined by the Board.
4)Establishes the Cortese-Knox-Hertzberg Act (Act), which
defines the procedures for the organization and reorganization
of cities, counties, and special districts, including district
annexation.
5)Authorizes a city or district to provide new or extended
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services by contract or agreement outside its jurisdictional
boundaries, if it requests and receives written approval from
the local agency formation commission (LAFCO) in the affected
county, as specified.
FISCAL EFFECT: This bill is keyed fiscal.
COMMENTS:
1)Author's Statement. According to the author, "California was
admitted into the Union as the 31st state in 1850. The Sycuan
Reservation was established through Executive Order of
President Ulysses Grant in 1875. Nearly all of the tribal
reservations in California were never included within the
boundaries of neighboring municipal water districts. The
Sycuan Reservation is uniquely placed in relation to
surrounding water district boundaries. [The] reservation is
surrounded on three sides by two different water districts,
the Otay Municipal Water District and the Padre Dam Municipal
Water District. Both districts are retail water agencies and
members of both the San Diego County Water Authority and the
Metropolitan Water District.
"Within the last 15 years, due in part to the economic success
of the tribal government gaming operation, the tribe has
purchased a number of private parcels of land. These
purchases occurred for a number of reasons, but primarily to
provide adequate space for tribal member housing. In
addition, the tribe has desired to keep adjoining land as
permanent open space; to prevent further future development;
to protect cultural and archaeological resources; and to
expand the tribe's economic diversification. These lands of
course are the aboriginal territory of the Sycuan Tribe
pre-dating the establishment of California, the US, Mexico or
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even European contact by thousands of years.
"Ironically, to better serve tribal homes on after-acquired
parcels with a safe and reliable source of drinking water (as
a result of unsafe groundwater due to upstream contamination),
the tribe paid millions of dollars to extend the water line
within the boundaries of the [Padre Dam Municipal Water
District]. This line terminates a mere two feet from the
boundary of the original reservation, yet cannot be extended
on to the original reservation without lengthy, costly,
unnecessary and uncertain artificial state-created processes,
including affirmative votes by [the] County Water Authority
and Metropolitan Water District, LAFCO review and approval and
CEQA analysis.
"The original reservation, or the 'hole in the donut', is
entirely dependent upon groundwater in a fractured rock
system. This creates a unique public safety problem in the
event of an earthquake or other emergency situation. To
ensure the public's safety in the event of a wildfire,
earthquake, prolonged drought or other public emergency,
Sycuan needs legislation requiring either adjoining water
district to serve the developed portions of the original
Reservation, assuming the tribe pays all necessary and
appropriate charges as any other similarly situated
development or governmental entity. Legislation would also
reflect the unique government-to-government relationship
between the tribe and the state."
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2)Bill Summary. This bill requires a municipal water district,
upon request of an Indian tribe, to provide water service to
the tribe's lands that are not within a district. This bill
only applies if the tribe's land meet specified requirements:
a) the lands were owned by the tribe on January 1, 2016; b)
the lands are contiguous with at least two districts; c) the
lands lie within the special study area of at least one
district; and, d) at least 70% of the tribe's total Indian
lands are currently within the boundaries of one or more
districts. A district would have to provide water service at
the same terms available to their current customers. This
bill also establishes conditions that an Indian tribe must
meet prior to receiving water service. Under this bill, the
service area of the district and any public agency providing
water would include the tribe's land, as specified.
The perimeters established by this bill currently apply to the
Sycuan Nation in San Diego County. The Sycuan's original
reservation is contiguous with two municipal water districts,
Otay Water District and Padre Dam Municipal Water District,
and is within a special study area in Padre Dam Municipal
Water District. This bill is sponsored by the Sycuan Band of
the Kumeyaay Nation (Sycuan).
3)Background. According to the 2013 San Diego Integrated
Regional Water Management Plan, San Diego County features the
largest number of Tribes and Reservations in the state,
including the Sycuan, one of the 18 federally recognized
Tribal Nation Reservations. The Sycuan Band is a sovereign
government and is therefore not subject to state and local
laws and regulations, except for those required under a
Compact with the state. The tribal nations are subject to
federal requirements and compliance with the Federal Clean
Water Act and Safe Drinking Water Act. According to the San
Diego Integrated Regional Water Management Plan, "Though
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tribes may have adequate, modern, systems in place, they
cannot purchase or receive imported water without annexing all
or part of their systems to a water district, which can be a
barrier because it may be considered a lack of acknowledgement
of Tribes' sovereign governmental status."
The municipal water districts, which surround Sycuan's
original reservation, are, however, subject to LAFCO. The
Cortese-Knox-Hertzberg Act delegates the Legislature's power
to control the boundaries of cities and special districts to
LAFCOs. The Act prohibits the districts from providing water
service to the lands outside their boundaries, unless the area
is annexed within their boundaries or they obtain written
approval to serve territory outside their boundaries.
The San Diego County Water Authority (SDCWA) is a regional
umbrella agency that oversees the distribution of potable
water, invokes emergency store quotas and maintains agreements
between neighboring agencies for emergency interconnections.
SDCWA is a water wholesaler and purchases more than half of
the water used in the region from the Metropolitan Water
District of Southern California (Metropolitan) and sells it to
its 24 member agencies, including Padre Dam Municipal Water
District and Otay Municipal Water District. According to San
Diego LAFCO's municipal service review, "Membership in SDCWA
is a prerequisite for gaining entitlement to imported Colorado
River water and membership requires local agencies to defer to
SDCWA in certain areas of governance; for example, SDCWA
boundaries determine where agencies can extend service."
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Annexations to member agencies like Padre Dam and Otay
Municipal Water District also require annexations to the
entities that provide them with the imported potable water
they provide to their customers. Under existing law, for
Padre Dam Municipal Water District to provide water service to
the tribe's lands outside its boundaries would require LAFCO
approval pursuant to the Act, and must also be consistent with
Metropolitan's Administrative Code, the County Water Authority
Act, and SDCWA's Annexation Policies and Procedures which
requires the Water Authority to evaluate the adequacy of water
supplies and facilities to meet the needs of the proposed
annexed territory. Sycuan submitted a petition in 2008 to the
Otay Water District to annex the original reservation parcels
to the district, but later withdrew the application.
4)Policy Consideration. The Legislature has delegated the power
to control local boundaries to the 58 LAFCOs, directing the
LAFCOs to discourage urban sprawl, preserve open space and
agricultural lands, and provide efficient government services,
while considering local conditions and circumstances. This
bill bypasses LAFCO, and does not require the usual annexation
process to occur. Currently, Metropolitan and the Eastern
Municipal Water District in Riverside County are undergoing an
annexation process to include a commercial zone within the
Pechanga Indian Reservation into the district. Proponents of
this bill argue that it is appropriate for the Legislature to
make this determination, instead of LAFCO, to reflect the
unique relationship between the state and the tribe. The
Committee may wish to consider if this bill will set a
precedent and may encourage additional tribes to bypass the
local process, and instead, ask for a statutory fix from the
Legislature.
5)Arguments in Support. Supporters argue that the Sycuan
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Tribe's original reservation is served through groundwater
wells in a fractured rock system. This bill would authorize
the tribe to purchase water, under the same terms and
conditions as other, from an adjacent municipal water
district.
6)Arguments in Opposition. None on file.
REGISTERED SUPPORT / OPPOSITION:
Support
Sycuan Band of the Kumeyaay Nation [SPONSOR]
Ace Parking
Agua Caliente Band of Cahuilla Indians Tribal Council
Associated General Contractors of America, San Diego Chapter,
Inc.
Barona Band of Mission Indians
Barrio Station
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California Teamsters Public Affairs Council
Deputy Sheriffs' Association of San Diego County
Endangered Habitats League (if amended)
JDRF, San Diego Chapter
Kumeyaay Diegueno Land Conservancy
Law Office of Cynthia L. Eldred, APC
Leong-Kuba Sea Products, Inc
Mayor Kevin L. Faulconer, City of San Diego
Mayor Randy Voepel, City of Santee
Moceri Produce
Mothers Against Drunk Driving, San Diego Affiliate
Ocean Defenders Alliance
Paradise Creek Educational Park
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PlanSEA.org
Urban Corps of San Diego County
San Diego Gas & Electric
San Diego Museum of Man
San Diego Police Officers Association, Inc.
San Diego Regional Chamber of Commerce
San Diego Regional EDC
Santa Ynez Band of Chumash Indians\
Supervisor Bill Horn, 5th District, County of San Diego
The Art Miles Mural Project
The Metropolitan Water District of Southern California (if
amended)
UNITE HERE
Urban Corps of San Diego County
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Wildcoast
Individual letters (3)
Opposition
None on file
Analysis Prepared by:Misa Lennox / L. GOV. / (916) 319-3958