Proposed Paso Robles groundwater district is constitutional, state attorneys say

But state agency that made the ruling warns a hybrid board could still face legal questions

dsneed@thetribunenews.comApril 9, 2014 

In a decision released Wednesday, the state Office of Legislative Counsel has ruled that a proposed water district for the Paso Robles groundwater basin is constitutional but could still face legal questions.

State Assemblyman Katcho Achadjian, R-San Luis Obispo, said he will continue to pursue his legislation, AB 2453, to create a hybrid board of directors for the district that is a combination of property owners and directly elected residents of the district.

“The Legislative Counsel opinion, while stating that the proposed composition of the board of directors may have passed constitutional muster, does not mean this hybrid board structure is free from legal challenges,” Achadjian said in a letter Wednesday to PRO Water Equity, one of two North County groups that proposed the district.

“With that understanding, I have decided to continue moving forward with my legislation with the knowledge that it is a work in progress.”

In his letter, Achadjian explained that state law allows for two types of districts. One would have landowner-elected boards of directors for water districts, which are often referred to as “off-the-shelf districts.” Other types of districts have boards elected by all registered voters.
The proposed board is a hybrid of the two, and it is this legal gray area that could raise questions among lawmakers as the bill moves through the Legislature.

“AB 2453 simply makes such an alternative available to your local elected officials, who, through the LAFCO (Local Agency Formation Commission) process, will have a lengthy process for public input and will ultimately determine whether or not to form a district and what type of governance structure to adopt,” Achadjian said.

The Legislative Counsel opinion resolves a legal impasse that put on hold efforts to form a water management district to deal with the crisis in the Paso Robles groundwater basin, which is suffering from a combination of too much pumping and years of drought. In recent years, water levels have dropped 2 to 6 feet per year, depending on location, causing wells to go dry for some homeowners and irrigators.

“I am hopeful that this will provide some options for forming the district as opposed to just killing the whole thing,” said Supervisor Frank Mecham, whose district encompasses most of the Paso Robles basin.

State Sen. Bill Monning, D-Carmel, was not available to comment on the legal opinion.

The hybrid board of directors was a compromise reached by PRO Water
Equity, which includes rural residents of the basin, and another group called Paso Robles Agricultural Alliance for Groundwater Solutions, which consists mostly of farmers of irrigated agriculture.

The board structure is intended to meet the needs of both residents and the many vintners in the basin. The county Board of Supervisors and the Paso Robles City Council have voted to support the proposed district.

The proposed nine-person water district board would be composed of three members elected directly by district residents, while the other six would be elected by landowners in the basin based on whether they are large-, medium- or small-acreage landowners.

A month ago, the state Office of Legislative Counsel, which is the legal advisory body for the Legislature, told Achadjian that the water district’s hybrid board of directors may violate the equal protection clauses of the state and national constitutions.

Those clauses ensure that all people are treated equally under the law unless there is a substantial reason why they should not.

In a 21-page opinion made public Wednesday, the Legislative Counsel resolved that question.

The opinion stated that water districts — limited by law to provide specific services — can charge district landowners based on their water usage.

Therefore, under the equal protection clause of the Constitution, it is legal for large water users to have greater say in choosing the district’s board of directors, the Legislative Counsel said.

Achadjian said he is aware that some residents of the Paso Robles basin are opposed to the water district as proposed. His main concern is preventing the state from taking over management of the basin. Moving forward with the proposed district “will send a signal to the governor that we are serious about the health of the basin,” he said.

“Therefore, I am committed to continue working with all parties to get it right,” he said.
Most opponents of the proposed district want both the formation of the district and the election of the board of directors to be based on popular votes rather than property ownership.

County Supervisor Debbie Arnold, whose district also includes parts of the Paso Robles basin, said the election of the board of directors is secondary to the vote to form the district because both residents and farmers would be affected by the district.

“I would hope that the legislation would include a formation vote of one person, one vote,” she said. “The formation vote is the important thing.”

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