BILL ANALYSIS �
AB 2453
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CONCURRENCE IN SENATE AMENDMENTS
AB 2453 (Achadjian)
As Amended August 4, 2014
Majority vote
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|ASSEMBLY: |50-11|(May 28, 2014) |SENATE: |30-3 |(August 13, |
| | | | | |2014) |
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Original Committee Reference: L. GOV.
SUMMARY : Authorizes, under the California Water District Law,
the governing board structure and powers of the Paso Robles
Basin Water District (District) in San Luis Obispo County, with
the District's boundaries to be established by the San Luis
Obispo County Local Agency Formation Commission.
The Senate amendments :
1)Specify that the process for the formation of the District
shall comply with the Cortese-Knox-Hertzberg Local Government
Reorganization Act of 2000, with the exception of the
following provisions:
a) On or before January 1, 2019, 10% of landowners may
petition for, or an affected local agency within the
county, including the county and the San Luis Obispo County
Flood Control and Water Conservation District, may apply
for by resolution, the formation of a District, consistent
with the following definitions:
i) "Landowner" means any person who holds title to land
within the boundaries of the proposed District as shown
on the last assessment roll prepared by the county
assessor, or a legal representative of a landowner who
holds title to land within the boundaries of the proposed
District as shown on the last assessment roll prepared by
the county assessor.
ii) "Landowner" does not include individuals,
partnerships, corporations, or public agencies holding
easements or less than fee interests, including
leaseholds of any nature.
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iii) "Legal representative" means either of the
following:
(1) A duly appointed and acting guardian,
executor, or administrator of the estate of a holder
of title to land.
(2) One of the following:
(a) If the holder of title is a trust, any
trustee of the trust may vote on behalf of the
trust;
(b) If the holder of title is a corporation,
the president, vice president, secretary, or other
duly designated officer may vote on behalf of the
corporation;
(c) If the holder of title is a limited
liability company, any managing member may vote on
behalf of the limited liability company; or,
(d) An officer or partner with managerial
responsibilities of a legal entity not listed in
clauses i) to iii), inclusive, may vote on behalf of
the entity.
b) Specify, following a successful petition by the
landowners or a resolution of application by an affected
local agency, that an election among landowners shall be
conducted on the matter of whether to form the District.
c) Specify, for purposes of a petition to form the
District and a vote on the matter to form the District, the
following applies:
i) Each voter, who shall be a landowner, may cast one
vote on the matter of a petition and one vote on the
matter of an election to form the District. Ownership of
multiple parcels of land, in full or in part, shall not
entitle any voter to more than one vote;
ii) For land held jointly, owners collectively get one
vote. Nothing in this section should be construed to
indicate that multiple owners of a property get more than
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one vote;
iii) In the event any landowner that is a member of the
same commonly controlled group, as defined, or is a
member of a combined reporting group, as defined, or
under common ownership with, another landowner in the
District, all members of the commonly controlled group or
combined reporting group will be deemed a single
landowner;
iv) Each public agency that holds title to land within
the District shall be entitled to one vote;
v) No person shall vote by proxy unless his or her
authority to cast that vote is evidenced by an instrument
acknowledged and filed with the board of election;
vi) If from the election returns a majority of the votes
cast at the election were in favor of the formation of
the District, the formation of the District shall be
complete; and,
vii) Recognizing that an election is needed to form the
Paso Robles Basin Water District, the protest provisions
of the Cortese-Knox-Hertzberg Act as they pertain to the
formation of a district, do not apply.
2)Require, if formed, the Board of Directors (Board) of the
District to provide by resolution the dates on which and the
time and place at which regular meetings of the Board shall be
held. A copy of each resolution establishing the date, time,
and place of a regular meeting shall be filed with the
secretary of the Board and the clerk, or secretary of the
legislative body of each of the members.
3)Require the Board to comply with the provisions of the Ralph
M. Brown Act.
4)Specify the composition of the Board of the District as
follows:
a) There shall be a total of nine directors. A person may
only be a candidate for one director.
b) Six of the directors shall be qualified for office by
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being persons who hold title to land within the District or
persons authorized to vote in elections by landowners, as
specified. Each director shall be elected by landowners
within the District, as provided, except that each voter
shall be entitled to cast one vote for each acre owned by
the voter within the District. If the voter owns less than
one acre, the voter shall be entitled to one vote and any
fraction shall be rounded to the nearest full acre.
i) For purposes of election of the six directors,
landowners within the district shall be divided into
three classes as follows:
(1) "Large landowners" meaning holders of title
owning a total of 400 acres or more;
(2) "Medium landowners" meaning holders of title
owning a total of 40 acres or more but less than 400
acres; and,
(3) "Small landowners" meaning holders of title
owning a total of less than 40 acres of land.
ii) Large landowners shall elect two directors, medium
landowners shall elect two directors, and small
landowners shall elect two directors.
iii) Candidates for the six directors may be within any
landowner class, and shall reside within the District,
within two miles of the District boundary, or within the
boundaries of the City of Paso Robles, the Atascadero
Mutual Water Company, the Templeton Community Services
District, the San Miguel Community Services District, or
the San Luis Obispo County Service Area 16.
c) Three of the directors shall be elected by registered
voters within the District at large, and shall be
registered voters residing within the District.
5)Require District elections to be conducted in conformance with
the Uniform District Election Law, as specified, and the laws
generally applicable to districts created and operated
pursuant to California Water District Law, provided the
following shall apply:
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a) Separate ballots shall be prepared and separate
elections shall be conducted for those director positions
which will be elected by resident voters and for those
which will be elected by landowner voters. Landowner voter
elections and resident voter elections shall be conducted
simultaneously.
b) District elections shall be conducted by all-mailed
ballots, as specified. Separate voter lists of resident
voters and landowner voters eligible to vote within the
District shall be prepared and maintained, as specified.
Separate all-mailed ballot elections shall be held for the
directors to be elected by resident voters and for those to
be elected by landowner voters.
c) The directors elected upon formation of the District
shall hold office pursuant to Elections Code Section 10505.
The director positions elected by large landowners shall
be divided into two director term classes, the directors
elected by medium landowners shall be divided into two
director term classes, the directors elected by small
landowners shall be divided into two director term classes,
and the directors elected by registered voters shall be
divided into two director term classes.
d) Elections of directors shall be held on the first
Tuesday after the first Monday in October of each
odd-numbered year.
e) The voters list used for the purpose of an election of
directors shall be based upon the last assessment roll
prepared by the county assessor, which shall be conclusive
evidence of ownership and the acreage for purposes of
electing directors, as specified. The voters list shall be
amended if satisfactory evidence of a change in ownership
is presented at least 45 days prior to the election to the
elections official in the case of the formation election,
and thereafter to the District secretary. The county
assessor shall be reimbursed by the District for all costs
incurred in determining the ownership and acreage
information and providing the information to the county
clerk.
f) For purposes of the Uniform District Election Law, the
District is a landowner voting district.
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6)Specify, for the purposes of election participation by
landowners, that the definitions contained in 1a) above, shall
apply.
7)Provide that all powers of the District specified in the bill
are subject to review and approval by the San Luis Obispo
County Local Agency Formation Commission (San Luis Obispo
LAFCO), upon formation, change or organization, or
reorganization under the Cortese-Knox-Hertzberg Act.
8)Allow the Board to adopt ordinances for the purpose of
regulating, conserving, managing, and controlling the use and
extraction of groundwater within the territory of the
District. All ordinances shall be adopted, after noticed
public hearings by a majority vote of the Board. Notice of
the adoption of all ordinances shall be given. The ordinances
of the District shall become effective on the 31st day after
adoption except that the Board may, by the vote of at least
four members of the Board, dispense with notice of public
hearing and adopt an emergency ordinance that shall become
effective immediately upon adoption, if the Board determines
that the public health, safety, or welfare so requires.
9)Specify penalties for violation of the act or any District
ordinance, and specify penalties for civil liability for
negligently or intentionally violating any provision of the
act or any District ordinance.
10)Allow the District to do the following:
a) Allow the District to petition the Superior Court for a
temporary restraining order, preliminary or permanent
injunction, or equitable relief as may be appropriate, as
specified, for the failure of any person to comply with any
provision of the act or any District ordinance. Allow the
District to petition the Superior Court of the county to
recover any sums due the District, as specified. Allow the
District to commence, maintain, intervene in, defend,
compromise, and assume the costs and expenses of legal
actions and administrative proceedings involving
groundwater, including, but not limited to, groundwater
rights adjudication.
b) Allow the District to contract with the County, the San
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Luis Obispo County Flood Control and Water Conservation
District, or other local district for staff and other
services and may hire other contractors and consultants as
it considers appropriate.
c) Allow the District to collect data and conduct technical
and other investigations deemed necessary in order to carry
out the provisions of the act, as specified.
d) Allow the District to prepare annually or receive
reports on groundwater and supplemental water supplies and
conditions in the territory of the District, including
groundwater management and conjunctive use objectives and a
plan for implementation of those objectives.
e) Allow the District to recommend and encourage wastewater
reuse and other water development projects, if those
projects will enhance and contribute to the responsible
management of groundwater resources, as part of its annual
plan for implementation of groundwater management
objectives.
f) Allow the District to have the authority afforded to
local agencies as specified in the Water Code related to
Groundwater Management Plans (AB 3030 (Costa), Chapter 708,
Statutes of 1992).
11)Provide, in order to balance the water supply and demand
within the Paso Robles Groundwater Basin (Basin), that the
District may develop, adopt, and implement a groundwater
management plan to control extractions from the Basin aquifers
with the objective of balancing water supply and demand in the
region, as specified.
12)Allow, if the Board determines, after noticed public hearing,
and consideration of any relevant investigations, studies, and
evidence, that groundwater management activities are necessary
in order to improve or protect the quantity or quality of
groundwater supplies within a groundwater basin or aquifer,
the board may, by ordinance, exercise any of the following
powers:
a) Require conservation practices, as specified;
b) Control groundwater extractions, as specified;
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c) Commence and prosecute legal actions to enjoin
unreasonable uses of methods of use of water within the
District or outside the territory of the District, as
specified;
d) Impose spacing requirements on new extraction facility
construction, as specified;
e) Impose reasonable operating regulations on extraction
facilities to minimize well interference, as specified;
f) Require extraction facilities to be registered with the
District, as specified;
g) Require that the operator of a registered extraction
facility provide the District annually with specified
information; and,
h) Require extraction facilities to be equipped with
waterflow measuring devices installed and calibrated by the
District or, at the District's option, by the extraction
facility operator.
13)Specify provisions related to how the waterflow measuring
device can be used by the District.
14)Allow the District, by ordinance, to establish reasonable
methods to be sued in computing the amount of water extracted
by extraction facilities.
15)Allow the District, by ordinance, to require the operator of
each extraction facility to file semiannually, or more
frequently, with the District, a groundwater extraction
statement that contains specified information.
16)Allow the District, by ordinance to levy groundwater
extraction charges, as specified, and use those moneys to
carry out its groundwater management functions.
17)State that the Legislature finds and declares the following:
a) Extraction allocations and extraction surcharges are
necessary to eliminate overdraft caused by excess
extractions from the aquifer systems within the District
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and to bring the groundwater basins underlying the
territory to safe yield within 10 years of the formation of
the District and to sustain that safe yield thereafter.
b) The extraction surcharges are intended to discourage the
use of groundwater beyond the extraction allocation. There
are not intended to generate tax revenues or proceeds from
regulatory licenses, user surcharges, or user fees.
Consequently, they are not special taxes for purposes of
California Constitution Article XIII A, Section 4, or
proceeds of taxes for purposes of California Constitution
Article XIII B, Section 8.
18)Specify the maximum amount of the extraction surcharge shall
be $200 per acre-foot of groundwater extracted in excess of
the extraction allocation, as specified.
19)Provide that the District shall charge and collect a late
penalty at the rate of 1.5% each month, or portion thereof, on
the delinquent amount of the extraction surcharge, if an
operator of a groundwater extraction facility fails to pay the
extraction surcharge when due.
20)Allow the District to bring a cause of action, in any court
having jurisdiction, against an operator of a groundwater
extraction facility for the collection of a delinquent
extraction surcharge, as specified.
21)Allow, in addition to any other authority, the District to
order an extraction surcharge or late penalty to be a personal
obligation of the operator or an assessment against the
property on which the extraction facility is located, and
provide that the assessment shall constitute a lien upon the
property, as specified.
22)State that the Legislature finds and declares that a special
law is necessary and that a general law cannot be made
applicable because of the unique circumstances in the service
are of the Paso Robles Basin Water District.
23)Provide that no reimbursement is required because the only
costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime
or infraction, eliminates a crime or infraction, or changes
the penalty for a crime or infraction.
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24)Define a number of terms related to the general provisions of
the Paso Robles Basin Water District.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS :
1)Background on the Paso Robles Groundwater Basin and actions at
the local level. According to a Paso Robles Groundwater Basin
newsletter published by the County of San Luis Obispo's
Department of Planning and Building, Public Works and Public
Health in June of 2011 and sent to all rural property owners
throughout the North County, "The basin covers approximately
800 square miles and is the primary, and in many places the
only, source of water available to property owners throughout
the North County? the county Board of Supervisors, after a
four-year study, has concluded that groundwater levels are
dropping throughout the basin. The Board has also concluded
that pumping of groundwater from the basin has reached or is
quickly approaching the basin's 'perennial yield.' Once the
perennial yield of a groundwater basin is reached, additional
pumping beyond that amount will result in lowering groundwater
levels.
"The entire population of the rural North County gets its
water from groundwater wells. What that means is that there
are a lot of 'straws' in the same glass; in fact, there are
over 8,000 wells in the Paso Robles Groundwater Basin."
The San Luis Obispo County and other jurisdictions in the
County of San Luis Obispo have undertaken a number of efforts
to address the basin decline, including the following:
a) In 2010 and 2011, the City of Paso Robles and the County
of San Luis Obispo led a voluntary effort along with other
basin stakeholders to prepare a groundwater management plan
(GMP) for the Paso Robles Groundwater Basin. The GMP
address groundwater conditions, identifies local and
basin-wide groundwater issues, and outlines measures to
protect groundwater within the basin. On March 18, 2014,
the San Luis Obispo County Board of Supervisors (Board of
Supervisors) held a public hearing to consider adopting a
resolution that would direct staff on drafting amendments
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to the existing [GWP] that was originally adopted on March
27, 2012.
b) On September 25, 2012, the Board of Supervisors adopted
the Paso Robles Groundwater Basin water conservation
ordinance, which requires large land uses to offset new
water use, prohibits the creation of new parcels in the
basin and requires changes to the county's general plan to
be water neutral. The ordinance did not affect the Cities
of Paso Robles and Atascadero, or the towns of Templeton,
San Miguel or Shandon, and did not affect the drilling of
wells or the building of single family homes.
c) The Board of Supervisors on August, 27, 2013, adopted an
Urgency Ordinance that established a moratorium on new or
expanded irrigated crop production, conversion of dry farm
or grazing land to new or expanded irrigated crop
production and new development dependent upon a well in the
Paso Robles Groundwater Basin, unless such uses offset
their total protect water use, including certain
exemptions.
d) On October 8, 2013, the Board of Supervisors continued
the Urgency Ordinance adopted on August 27, 2013, for two
years.
e) On February 25, 2014, the Board of Supervisors approved
a resolution adopting the New Development Water
Conservation Program. The program implements the Paso
Robles Groundwater Basin Urgency Ordinance, which requires
all new development in the Paso Robles Basin Area to offset
new water use through verifiable evidence or participation
in an approved County Water Conservation Program.
The County of San Luis Obispo, jurisdictions within the
county, and residents and community groups continue to look
for solutions to manage the groundwater basin.
2)Author's statement. According to the author, "AB 2453 is the
culmination of a year-long negotiation between two groups in
my district. This legislation also has the full support of
the San Luis Obispo County Board of Supervisors and the Paso
Robles City Council and would allow the election of a hybrid
board of directors in order to ensure that all stakeholders in
the Basin are represented. While the water district will be
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established by the San Luis Obispo County Local Agency
Formation Commission, there will be a lengthy process for
public input in order to assure the water district has the
management authorities to properly manage the Basin. While
most Senate amendments were technical in nature, the bill was
also amended to allow nonlandowers who are registered voters
in the district to run for the three at-large director seats.
Over 300 wells went dry in a five-month period this year,
therefore, the need for this legislation is immense."
3)Purpose of this bill. This bill authorizes, under the
California Water District Law, the governing board structure
and powers of the Paso Robles Basin Water District in San Luis
Obispo County, with the District's boundaries to be
established by the San Luis Obispo LAFCO. This bill provides
an alternate structure for the elections of the Board of
Directors for the not-yet-established District other than what
is contained in the California Water District Act, specifies
the qualifications of the directors to hold office, provides
the procedures for the District's elections for the Board of
Directors, and specifies a number of powers of the District
related to groundwater management and managing groundwater
extractions.
4)Petition and Formation of the District. Amendments taken in
the Senate specify that in general, the formation process for
the District shall comply with the Cortese-Knox-Hertzberg Act,
with certain exceptions. For instance, this bill's provisions
allow, on or before January 1, 2019, 10% of landowners to
petition for the formation of the District, or as an
alternative, an affected local agency within the San Luis
Obispo County, including the San Luis Obispo County itself, or
the San Luis Obispo County Flood Control and Water
Conservation District, may also apply by resolution for the
formation of the District.
Following a successful petition by landowners or a resolution
of application by an affected local agency, this bill requires
an election to be held among landowners on whether to form the
District. This bill provides that a landowner may cast one
vote on the matter of a petition for the formation of the
District, and one vote on the matter of an election to form
the District. If a majority of the votes cast at the election
were in favor of the formation of the District, the formation
of the District will then be complete. This bill states that
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"recognizing that an election is needed to form the Paso
Robles Basin Water District, the protest provisions of the
Cortese-Knox-Hertzberg Act? as they pertain to the formation
of a district, do not apply."
5)Qualifications of the Board of Directors. This bill specifies
that the Board of Directors will be a nine-member board.
Qualifications for six of the directors are based on
land-ownership, meaning that a person must hold title to land
within the District or be a person authorized to vote in
elections by landowners as provided in the bill, and must
reside within the District, two miles of the District
boundary, or within the boundaries of several other specified
local agencies.
This bill specifies that the qualifications for the other
three director positions are based on being a registered voter
who resides within the District.
6)Election of the Board of Directors. This bill specifies that
landowners in the District would elect six directors based on
classifications - large landowners (400+ acres), medium
landowners (40 to 399 acres), and small landowners (less than
40 acres). This bill provides that each landowner category
would elect two directors, and candidates for the six director
slots may be within any landowner class. Each voter in these
landowner classes will be entitled to cast one vote for each
acre owned by the voter within the District.
The other three directors will be elected by registered voters
within the District at large.
This bill specifies the elections process for the Board of
Directors, and requires that separate ballots be prepared and
separate elections conducted for those director positions
which will be elected by resident voters and for those that
will be elected by landowner voters, to be conducted
simultaneously.
7)Options for groundwater management. According to the
Department of Water Resources (DWR), in 1914 California
created a system of appropriating surface water rights through
a permitting process, but groundwater use has never been
regulated by the state. Though the regulation of groundwater
has been considered on several occasions, the Legislature has
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repeatedly held that groundwater management should remain a
local responsibility.
There are three ways to manage groundwater resources in
California: a) management by local agencies (special
districts) under authority granted in the California Water
Code or other applicable state statutes; b) local government
groundwater ordinances or joint powers agreements; and, c)
court adjudications.
a) Special districts with groundwater management authority.
Greater authority to manage groundwater has been granted
to a small number of local agencies or districts created
through a Special Act of the Legislature. Currently, 13
local agencies have specific groundwater management
authority as a result of being special act districts. The
specific authority of each agency varies, but they can
generally be grouped into two categories:
i) the agency has authority to limit export and extraction
(upon evidence of overdraft or threat of overdraft); or,
ii) the agency does not have authority to limit extraction
but the users in the basin are required to report
extractions to the agency (who can levy fees from
groundwater management or water supply replenishment).
b) Groundwater ordinances and groundwater management plans.
Groundwater management can also be achieved through local
groundwater ordinances. According to the DWR, more than 27
counties have adopted groundwater ordinances. These
counties include: Alpine, Butte, Calaveras, Colusa,
Fresno, Glenn, Imperial, Inyo, Kern, Lake, Lassen, Madera,
Mendocino, Modoc, Mono, Monterey, Napa, Sacramento, San
Benito, San Bernardino, San Diego, San Joaquin, Shasta,
Sierra, Siskiyou, Stanislaus, Tehama, Tuolumne, Ventura,
and Yolo.
Another option for local agencies to manage groundwater is
through a groundwater management plan. AB 3030, the
California Groundwater Management Act, was passed by the
Legislature in 1992. It was a significant addition to the
groundwater management authorities granted under the Water
Code in that it greatly increased the number of local
agencies authorized to develop GMPs and set forth a common
framework for management by local agencies throughout
California. Adoption of a GMP was encouraged under AB 3030
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but not required. SB 1938 (Machado), Chapter 603, Statutes
of 2002, took a further step when it set out certain
specified components for GMPs and required any local agency
seeking state funds administered by DWR to meet those
requirements. Subsequent bond initiatives have also made
an adopted GMP an eligibility criterion for receiving
groundwater project and program funds. Since its passage,
149 agencies have adopted GMPs in accordance with AB 3030.
Other agencies have begun the process. As mentioned above,
in some basins, groundwater is managed under other
statutory or judicial authority.
The California Groundwater Management Act (Act), as
amended, provides a systematic procedure to develop a GMP
and requires the inclusion of certain minimum components.
These include basin management objectives as well as
monitoring and management of groundwater levels, inelastic
surface subsidence, and changes in surface flow and surface
quality that directly affect groundwater levels or quality
or are caused by groundwater pumping. The Act also
requires a description of how recharge areas identified in
the plan substantially contribute to the replenishment of
the groundwater basin. In addition, suggested optional
components that might be relevant for a particular
groundwater basin are listed.
c) Court adjudication. According to DWR, another form of
groundwater management in California is through court
adjudication. In basins where a lawsuit is brought to
adjudicate the basin, the groundwater disputes of all the
overliers and appropriators are determined by the court.
The court also decides: i) who the extractors are; ii) how
much groundwater those well owners can extract; and, iii)
who the Watermaster will be to ensure that the basin is
managed in accordance with the court's decree.
8)Landowner qualification. The California Constitution provides
that the right to vote or serve in elected office may not be
conditioned on a landownership qualification. However, in
1973, the United States (U.S.) Supreme Court ruled in Salyer
Land Co. v. Tulare Water District that the California statute
requiring a landownership qualification did not violate the
Equal Protection Clause of the U.S. Constitution. The court
ruled there was no violation because those districts do not
exercise normal governmental authority and their activities
disproportionally affect landowners.
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The California Supreme Court, in Choudhry v. Free (1976)
17Cal.3d 660, declared unconstitutional a section of the
Irrigation District Law requiring potential board candidates
to be landowners. The court ruled that this section was
unconstitutional as applied to the Imperial Irrigation
District and its board of directors, the real parties in
interest, because it deprived the irrigation candidates and
voters, including petitioner voters, of equal protection. The
court's opinion gave two reasons it did not extend its ruling
to other irrigation districts. First, the Imperial Irrigation
District was singular at that time among irrigation districts
in that it had more residents, land, and employees than any
other irrigation district and it was providing retail water
service. Second, neither respondents nor real parties in
interest had opposed petitioners' claim that Water Code
Section 21100 was unconstitutional, and numerous irrigation
districts in the state that would have been affected by a
finding of unconstitutionality did not have the opportunity to
present their views or offer evidence regarding the
characteristics and operation of irrigation districts in
general.
9)Arguments in support. Pro Water Equity, Inc. believes that
the Paso Robles Basin "needs to be sustainably managed, and
that a locally-controlled water district with the hybrid
governance structure proposed [in the bill] is the best
solution for [their] community." Paso Robles Agricultural
Alliance for Groundwater Solutions writes that the bill
"provides LAFCO with wide authority to grant powers to the
District?. local control is essential and only those who live,
farm, graze and own land in the North County can determine
what is best for [their] situation."
10)Arguments in opposition. Opponents argue that the candidate
qualification and voting process to form and determine the
board of directors in the bill is unfair to local residents
who do not own a large amount of land, and that this type of
voting system and landownership requirement for directors will
send a signal to local residents that their votes and opinions
do not have the same weight as their neighbors. Opponents
argue that a system where residents are treated equally
regardless of the amount of land owned is the better approach.
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Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958
FN: 0004549