Author: Jerry Bradshaw
As currently interpreted by the Courts, Proposition 218 requires new or increased fees for stormwater services to go through a ballot proceeding. This is dramatically different than for sister property-related services of water, sewer or refuse collection, which are exempt from the balloting provision. This reality has severely chilled most efforts by municipalities to implement new or increased fees for stormwater services such as NPDES permit compliance, capital improvements, operations and maintenance. This, in turn, has resulted in many communities deferring critical maintenance and improvements.
The issue the Courts had to wrestle with was the lack of any definitions in Proposition 218 and in the follow on legislation (Government Code Section 53750 – 53758). In the 2002 Salinas case, the Court decided to ignore pre-existing definitions of sewer that included storm waters and decided to side with the Howard Jarvis Taxpayers Association argument of making it tougher on government to raise taxes, fees and assessments.
Senate Bill 231 To The Rescue
Senate Bill 231, signed by Governor Brown on October 6, 2017, attempts to clear up the issue by modifying Sections 53750 – 53751 of the Code to provide a definition for sewer that includes storm drainage. This clarification would give stormwater services fees the same exemption from the balloting requirement that applies to sewer, water and refuse collection fees, and would make stormwater property-related fees a non-balloted option – something very attractive to municipalities.
Not So Fast
Unfortunately, the Howard Jarvis Taxpayers Association, who authored and sponsored Proposition 218, is expected to file a lawsuit against any municipality that adopts a stormwater fee without a ballot proceeding. Their reasoning is that Proposition 218 (a Constitutional provision) and the Salinas Court ruling cannot be changed by the Legislature.
As a result, the SB 231 approach must be given a very cautionary recommendation at this time. Any agency considering moving in that direction should consult with other agencies and industry groups in order to coordinate their efforts in a strategic manner and avoid setting an unfavorable legal precedent. An SB 231 Implementation Working Group has been formed to coordinate a legal approach. SCI is a member of that working group along with organizations such as the League of California Cities, California State Association of Counties, County Engineer Association of California, the Bay Area Stormwater Management Agency Association, the California Stormwater Quality Association, the State Water Board, EPA and environmental groups like American Rivers, Save the Bay, and Heal the Bay. One possible approach is to develop one or more test cases representing various stormwater service scenarios. Any test case could take several years and significant resources to run to a conclusion, and the results are not guaranteed. Any agency considering moving forward with the SB 231 approach is urged to contact SCI or one of the other Working Group members to coordinate their efforts and benefit from a strategic planning that has already been done.