Prop. 218 must not stop conservation

Editorial

It’s been 19 years since voters passed one of the worst initiatives in California history: Proposition 218, which micromanages and severely limits the way public agencies can raise money.

The latest of many harmful consequences was Tuesday’s 4th District Court of Appeal ruling that a tiered water- rate structure used by San Juan Capistrano to encourage conservation violates the convoluted rules. The court held that since Proposition 218 prohibits charging more for a service than it costs to provide, the policy of charging higher rates to users of more water was unconstitutional.

At least two- thirds of California water providers, including many in the Bay Area, use some form of tiered rates. Gov. Jerry Brown blasted the ruling for compromising this strategy to discourage wasting water in the face of the worst drought in state history. But a careful reading offers an opening to continue conservation incentives if agencies carefully justify them.

That’s what engineers and attorneys need to be parsing now. Communities can’t afford to wait for the state Supreme Court to review the decision. The need for conservation is urgent.

The key, legally, is to show solid evidence that acquiring additional water for high- consumption users — say, a lush estate in Woodside as opposed to a drought- tolerant yard in San Jose or Fremont — justifies a higher rate. For example, the need to build or expand water recycling plants and to step up the recharging of groundwater to meet high demands might meet the court standard.

Fortunately most of San Jose’s businesses and households are customers of the private San Jose Water Co., so Proposition 218 doesn’t affect its tiered rate structure.

Contra Costa Water District spokeswoman Jennifer Allen said Wednesday that it does not have a tiered- rate system. But the East Bay Municipal Utility District’s three- tier pricing could be in trouble.

Santa Cruz’s conservation strategy is to levy penalties for excessive water use. The court didn’t specifically rule this out, so it may be a legal alternative. Or it might just be the next Proposition 218 lawsuit target.

Proposition 218 is the classic initiative perceived by voters to be in their interests — in this case, discouraging tax or fee increases — but, because of poor drafting and weird micromanaging rules, ultimately works against them.

The drafters of this 1996 horror may be thrilled with this week’s court ruling, but we’ll bet they didn’t sit around in 1996 saying, “Hey, let’s be sure to protect people’s right to use all the water they want even if there’s a mega- drought.”

Overturning the initiative is wishful thinking, and a state Supreme Court reversal is unlikely, given the proposition they’re stuck with upholding. Elected officials need to find ways to comply and still enact strong incentives to conserve.