Putting it on line to defend water rates

Marin Municipal Water District directors are budgeting $800,000 to defend their adopted rate structure, new conservation-driven tiers and new levies for maintenance of watershed and capital repairs.

The district’s charges are garnering legal fire from ratepayers who contend they violate the state’s wide-ranging and much- debated Proposition 218 guidelines governing governmental taxes and charges.

California voters approved Prop. 218 in 1996, but since then its provisions have been frequent fodder for lawsuits and court rulings. That its ramifications are still being defined, nearly a quarter of a century since its passage, gives some credence to arguments that some measures should go through the rigors — multiple analyses and public hearings — before being put on the ballot for voter approval.

Prop. 218 was designed as a follow-up to the state’s 1978 Proposition 13 property tax reform law. It was crafted to address setting and approval of other taxes and charges levied by government, many of which were put into place to help replace revenue lost due to Prop.

13.

MMWD directors are hiring an outside law firm to lead its defense in two lawsuits that contend that its fee structure is illegal. The lawsuits seek refunds on those rates, arguing that they are unconstitutional.

The lawsuits contend the district’s rates are higher than its cost for the services the charges are supposed to pay for. Recently, Marin Judge Stephen Frecerro sided with a plaintiff that MMWD’s old rate structure — in place from 2011 to 2015 — was not based on the actual cost of water. Its tiers were designed to financially encourage ratepayers to conserve water by penalizing those who use more.

Frecerro ruled “there is no correlation between the rates in the different tiers and the cost of water service in those tiers.”

MMWD is committed to defending its rates. MMWD’s preparation to spend $800,000 certainly raises the stakes for the plaintiffs who don’t have “house” money to use in their legal fights. If it was a poker game, we would say MMWD directors have upped the ante to intimidating levels, possibly in hopes of convincing their critics to fold and let the challenged rates stand.

Not surprisingly, directors have gotten some heat for their strategy and use of ratepayer money.

One of their critics, Chris Wheaton of Larkspur, said MMWD directors “are forcing ratepayers to sue themselves and pay for both sides.”

Prop. 218 challenges and lawsuits have been growing.

In recent years, local sewage agencies have faced similar challenges of their uniformed rates where people living in small condominiums were paying the same as those in huge houses. Critics contended that Prop. 218 required charges be based on actual usage.

A lawsuit pursued by the local taxpayer watchdog group, Coalition of Sensible Taxpayers, contends that MMWD’s new capital maintenance and watershed management fees should similarly be based on actual usage, not the size of ratepayers’ water meters and the potential they could use more. COST is also seeking refunds.

Certainly, there’s a lot at stake, both for MMWD and other water agencies whose rate structures reflect the same strategies.

Longtime MMWD director Jack Gibson, an attorney, says the board does not deserve to be criticized for “not defending the district on the cheap.”

But the board deserves to be questioned about its rates and whether they comply with the myriad provisions of Prop. 218. Sometimes, a court has to decide.

In both cases facing the board, the plaintiffs are not trying to get rich on ratepayers’ money. They are seeking a fair hearing of their grievances and they feel they have to go to court to get it.

The amount of money the district is bankrolling for this fight does not appear to reflect any interest in being fair; just a willingness to pay to win.