BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 2470|
          |Office of Senate Floor Analyses   |                              |
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                                   THIRD READING 


          Bill No:  AB 2470
          Author:   Gonzalez (D), et al.
          Amended:  4/26/16 in Assembly
          Vote:     21 

           SENATE GOVERNANCE & FIN. COMMITTEE:  5-0, 6/22/16
           AYES:  Hertzberg, Nguyen, Beall, Hernandez, Pavley
           NO VOTE RECORDED:  Lara, Moorlach

           SENATE APPROPRIATIONS COMMITTEE:  Senate Rule 28.8

           ASSEMBLY FLOOR:  67-0, 5/27/16 (Consent) - See last page for  
            vote

           SUBJECT:   Municipal water districts:  water service:  Indian  
                     tribes


          SOURCE:    Sycuan Band of the Kumeyaay Nation

          DIGEST:   This bill requires a district to provide water to an  
          Indian tribe outside of the districts boundaries upon request of  
          the tribe.


          ANALYSIS:  


          Existing law:


           1) Creates a local agency formation commission (LAFCO) in each  
             county to control the boundaries of cities, county service  








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             areas, and most special districts.


           2) Allows local governments to only exercise their powers and  
             provide services where LAFCO allows them to.


           3) Requires a LAFCO to adopt a policy document for each city  
             and district called a sphere of influence, updated at least  
             every five years.


           4) Requires a LAFCO's boundary decisions to be consistent with  
             the spheres of influence of the affected cities or districts.  
              


           5) Requires a LAFCO to periodically conduct a "municipal  
             service review" to inform its decisions about spheres of  
             influence, and authorizes a LAFCO to create special study  
             areas to investigate the potential for annexations or other  
             boundary changes.


           6) Establishes the powers and organization of municipal water  
             districts.  


           7) Allows municipal water districts to sell water to entities  
             within the district for use within the district and to levy  
             taxes on the land within the district.


           8) Allows municipal water districts to establish special rates  
             for areas acquired by annexation and may charge special fees  
             when it serves areas that do not pay district taxes, such as  
             property taxes.


           9) Provides, under the Indian Gaming Regulatory Act, for the  
             negotiation and conclusion of compacts between federally  
             recognized Indian tribes and the state for the purpose of  
             conducting Class III gaming activities on Indian lands within  
             a state as a means of promoting tribal economic development,  







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             self-sufficiency, and strong tribal governments.  


           10)Authorizes expressly a number of tribal-state gaming  
             compacts between the State of California and specified Indian  
             tribes. 


          11)Authorizes the Governor, under the California Constitution,  
             to negotiate and conclude compacts, subject to ratification  
             by the Legislature.


          This bill:


           1) Requires-notwithstanding any other law-a district to provide  
             water to an Indian tribe upon request of the tribe, subject  
             to the following conditions:


              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 Indian tribe's total Indian lands  
                are currently within the boundaries of one or more  
                districts.  


           2) Requires the water service to be provided as if the Indian  
             tribe's lands had been fully annexed into the district's  
             territory and the territory of any other public agencies that  
             are required for the provision of water service.









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           3) Requires the tribe to meet certain conditions prior to the  
             district providing water, specifically to:


              a)    Comply with all federal and tribal laws and secure all  
                federal and tribal approvals necessary for the water to be  
                provided on substantially the same terms applicable to  
                customers of the district.  


              b)    By agreement, accept all terms of and payments to the  
                district and to any public agency providing water to said  
                district, including service payments.  These terms and  
                payments are a condition of continued service by the  
                district.


           4) Deems the service area of a district providing water to a  
             tribe pursuant to this bill to include the tribe's lands as  
             long as water is provided to the tribe, the tribe owes money  
             to the district, or there is an agreement between the tribe  
             and the district, whichever is longest.


          Background


          The Cortese-Knox-Hertzberg Act creates a LAFCO in each county to  
          control the boundaries of cities, county service areas, and most  
          special districts.  Local governments can only exercise their  
          powers and provide services where LAFCO allows them to; the  
          courts refer to LAFCOs as the Legislature's watchdog over  
          boundary changes. LAFCO boundary changes can be considered  
          projects under the California Environmental Quality Act (CEQA),  
          in which case an annexation is scrutinized for environmental or  
          growth-inducing impacts.  


          San Diego County Water Provision. The Metropolitan Water  
          District of Southern California (Metropolitan) is a water  
          wholesaler that sells water to its 26 member agencies.  About  
          one-quarter of the water Metropolitan sells is purchased by the  
          San Diego County Water Authority (SDCWA).  SDCWA then sells it  
          to its 24 member agencies, including Padre Dam Municipal Water  







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          District and Otay Water District, and coordinates regional water  
          supplies.  Metropolitan and SDCWA can only serve water within  
          their boundaries, so annexations to member agencies like Padre  
          Dam and Otay Water District also require annexations to  
          Metropolitan and SDCWA.  Thus an annexation of territory to  
          these retail water agencies would require LAFCO approval and  
          must also be consistent with Met'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 Tribe. The Sycuan Band of the Kumeyaay Nation is a  
          federally recognized tribe of Mission Indians from Southern  
          California, near El Cajon.  The Tribe consists of 220 members,  
          approximately 160 of whom are voting members (over 18 years  
          old).  In 2015, the Legislature ratified a new compact with the  
          state that expanded the number of Class III games that the tribe  
          may operate.  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 to  
          augment its original reservation lands.  


          The Sycuan Tribe is a sovereign government and is therefore not  
          subject to state and local laws and regulations, except for  
          those required under the compact.  The compact requires the  
          Tribe to prepare a Tribal Environmental Impact Report (TEIR) and  
          negotiate mitigation of any off-reservation impacts prior to  
          initiating the development of a project for a facility. In 2015,  
          Sycuan issued a notice of preparation of a TEIR for an expansion  
          of their hotel and casino located on the reservation.


          Otay Water District and Padre Dam currently serve water to much  
          of the tribe's lands.  However, the original reservation remains  
          outside of, but largely surrounded by, the two districts'  
          territories and is served by a single well that is vulnerable to  
          contamination. In order to secure water for the original  
          reservation, Sycuan paid to extend a water line through Padre  
          Dam territory to the border of the district but was unable to  
          connect to the system without going through LAFCO.  Instead,  
          Sycuan subsequently submitted a petition in 2008 to the Otay  







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          Water District to annex the original reservation parcels to the  
          district.  Otay prepared a draft environmental impact report  
          covering the annexation and circulated it for comment, but  
          Sycuan later withdrew the application.  


          Seeking to ensure that it has access to water sources other than  
          the groundwater well on the reservation, Sycuan wants to connect  
          to one of the two bordering water districts-most likely, Padre  
          Dam Municipal Water District.


          Comments


          1)Purpose of the bill. The original Sycuan reservation is  
            currently served by a single well that is vulnerable to  
            upstream contamination and could be threatened by an  
            earthquake due to the geology of the area.  But time-consuming  
            and expensive local processes stand in the way of shoring up  
            supplies for the reservation, even though there are two water  
            districts that border the tribe's land and water lines have  
            already been laid.  AB 2470 cuts through the red tape of these  
            processes by requiring a nearby district to serve the original  
            reservation.  It provides the Sycuan tribe with the  
            independence that is warranted by its sovereign nation status  
            and lets the tribe deal with the Legislature on equal footing  
            instead of subjecting itself to local processes-the outcome of  
            which is far from guaranteed.  AB 2470 paves the way for  
            quickly addressing the public safety risks currently faced by  
            the tribe, while ensuring that it pays its fair share for  
            water service.


          2)Precedent.  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 circumvents the usual annexation process,  
            including approval by other districts in the chain of water  
            suppliers.  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  







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            the state and the tribe.  This bill may set a precedent and  
            encourage additional tribes or other parties to bypass the  
            local process, and instead, ask for a statutory fix from the  
            Legislature.


          3)CEQA.  Annexation often requires CEQA analysis on the part of  
            the LAFCO and the agency proposing the annexation, and the  
            2008 proceedings for annexation of the reservation into Otay  
            Water District was no exception.  Yet CEQA does not apply to  
            actions where an agency has no discretion. By mandating that a  
            district serve the tribe instead of going through LAFCO, AB  
            2470 eliminates a level of CEQA analysis that would otherwise  
            need to be done.  Some additional analysis of the potential  
            for growth inducement may be required.




          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          SUPPORT:   (Verified8/3/16)


          Sycuan Band of the Kumeyaay Nation (source)
          Ace Parking Management, Inc.
          Agua Caliente Band of Cahuilla Indians Tribal Council
          Associated General Contractors of America, San Diego Chapter,  
          Inc.
          Barona Band of Mission Indians
          Barrio Station
          California Teamsters Public Affairs Council
          City of San Diego, Mayor Kevin L. Faulconer
          City of Santee, Mayor Randy Voepel
          County of San Diego, 5th District Supervisor Bill Horn
          Deputy Sheriff's Association of San Diego County
          Endangered Habitats League
          JDRF San Diego
          Kumeyaay Diegueno Land Conservancy
          Leong-Kuba Sea Products, Inc.
          Moceri Produce
          Mothers Against Drunk Driving







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          Newport Meat Company
          Ocean Defenders Alliance
          Otay Water District
          Padre Dam Municipal Water District
          Paradise Creek Educational Park
          Pepsi Beverages Company
          PlanSEA.org
          San Diego County Water Authority
          San Diego Gas & Electric
          San Diego Museum of Man
          San Diego Police Officers Association
          San Diego Regional Economic Development Corporation
          Santa Ynez Band of Chumash Indians
          The Art Miles Mural Project
          UNITE HERE
          United Auburn Indian Community of the Auburn Rancheria
          Urban Corps of San Diego County
          Wildcoast
          One individual


          OPPOSITION:   (Verified8/3/16)


          Butte Local Agency Formation Commission
           
           
          ASSEMBLY FLOOR:  67-0, 5/27/16
          AYES:  Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,  
            Bigelow, Bonilla, Bonta, Burke, Calderon, Campos, Chang, Chau,  
            Chávez, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Eggman,  
            Frazier, Beth Gaines, Gallagher, Cristina Garcia, Gatto,  
            Gipson, Gomez, Gonzalez, Gordon, Gray, Harper, Roger  
            Hernández, Holden, Irwin, Jones, Kim, Lackey, Levine, Linder,  
            Lopez, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin,  
            Nazarian, Obernolte, Olsen, Patterson, Quirk, Ridley-Thomas,  
            Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond,  
            Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon
          NO VOTE RECORDED:  Bloom, Brough, Brown, Chiu, Dodd, Eduardo  
            Garcia, Grove, Hadley, Jones-Sawyer, Low, Melendez, O'Donnell,  
            Ting

          Prepared by:Anton Favorini-Csorba / GOV. & F. / (916) 651-4119
          8/3/16 19:36:07







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