BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2470|
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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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