Best Best & Krieger News Feed

Ensuring the Financial Health of Your Utility After California's Historic Drought

12 Jan 2017 00:00:00 -0800

As agencies recover from a period of reduced water sales revenues as a result of California's historic drought, several questions remain as to what to expect going forward.

RFC is offering this workshop to help California utilities learn how to develop sustainable financial plans and prepare for California's next drought. Come learn from industry experts:

How to generate sufficient revenue with uncertain sales projections.
A step-by-step approach to developing defensible, cost of service-based rates.
How to be financially prepared for California's next drought.

This session will feature BB&K Partner Kelly Salt, one of California's most well-known authorities on ratemaking law. Kelly works with public agencies on bond and municipal finance matters, rate setting and compliance with Propositions 218 and 26, and drought management and water conservation programs.

REGISTRATION
$40 early-bird, $50 general admission (early-bird ends October 28).

Click Here to Register
Date: Thursday, Jan. 12
Time: 9:30 a.m. - 3:30 p.m.
Location: East Bay Municipal Utility District, 375 11th Street, Oakland, CA 94607
Room: Large Training Room
This session is limited to the first 35 registrants. Ticket sales will end Thursday, Jan. 5.

Bringing Water Together

29 Nov 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the ACWA 2016 Fall Conference & Exhibition in Anaheim, Calif.

BB&K Speakers:

Kelly Salt
“Groundwater Sustainability Agency Funding Options”
A discussion of possible groundwater sustainability agency funding options, including Proposition 26, Proposition 218 and other tools being used by those currently forming GSAs. Hear about what the drafters intended possible funding options to be when writing the Sustainable Groundwater Management Act. Get the latest update on how courts interpret the use of Proposition 218 and Proposition 26 for imposing fees and charges. Finally, learn about what current GSAs are contemplating to raise money to form GSAs and prepare groundwater sustainability plans.
Wednesday, Nov. 30
10 - 11:30 a.m.

John Freshman
“ACWA’s Hans Doe Past Presidents’ Breakfast in Partnership with ACWA/JPIA”
After the Elections: What Now? As the dust settles on the 2016 elections, come hear what political insiders have to say about the results. What does it all mean, who are the new players on the scene, and how can you navigate the results?
Friday, Dec. 2
8:30 - 10 a.m.

When
Tuesday, Nov. 29 - Friday, Dec. 2

Where
Anaheim Marriott Hotel
700 West Convention Way
Anaheim, CA 92802

For more information or to register, click here.

BB&K’s Reimagining the Cadillac Desert

27 Oct 2016 00:00:00 -0800

In a three-part series, Maven’s Notebook shared a recap of Best Best & Krieger LLP’s day-long “Reimagining the Cadillac Desert” event. Held on Sept. 15, the event included gathered leaders and experts in design, municipal planning, academia, agriculture, policy, finance and technology to share their visions for the West’s water future. Click here to learn more about the event, and to watch videos of the sessions.

From Maven’s Notebook:
REIMAGINING THE CADILLAC DESERT, Part 1: Are We in a Forever Drought?
REIMAGINING THE CADILLAC DESERT, Part 2: Where Will the Water Come From?
REIMAGINING THE CADILLAC DESERT, Part 3: How are Cities Looking at Water?

California Special Districts Association

10 Oct 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 California Special Districts Association Annual Conference in San Diego, Calif.

BB&K Speakers:

Kelly Salt
"Come Hell or High Water: Funding Conservation, Flood Control, and Stormwater"
This presentation will address potential solutions to structuring tiered water rates in light of recent court decisions; and options for funding discounts for low income water, sewer, and solid waste service customers, and stormwater and flood control services.
Tuesday, Oct. 11
2 – 3:15 p.m.

Isabel Safie and Katrina Veldkamp
"Navigating the CalPERS Audit"
This presentation will discuss the most common compliance issues that lead to an audit finding and how an agency can address those issues to minimize the impact of an audit. In addition, we’ll discuss the risk factors that make an agency more likely than not to be selected for a CalPERS audit. Finally, we’ll walk you through the audit process and discuss the purpose and target of each phase of an audit.
Wednesday, Oct. 12
2:15 – 3:30 p.m.

Michelle Ouellette and Jennifer Lynch
"CEQA: What Special Districts Need to Know in 2016 and Beyond"
Special district actions must comply with fast-changing CEQA law. This panel addresses recent legislation and litigation, and will touch upon GHGs, AB 52, special events, water issues, and much more.
Thursday, Oct. 13
8:30 - 10 a.m.

When
Monday, Oct. 10 - Wednesday, Oct. 13

Where
San Diego Hotel and Marina
1380 Harbor Island Dr.
San Diego, CA 92101

For more information or to register, click here.

Ensuring the Financial Health of Your Utility After California's Historic Drought

06 Oct 2016 00:00:00 -0800

As agencies recover from a period of reduced water sales revenues as a result of California's historic drought, several questions remain as to what to expect going forward.

RFC is offering workshops to help California utilities learn how to develop sustainable financial plans and prepare for California's next drought. Come learn from industry experts:

How to generate sufficient revenue with uncertain sales projections.
A step-by-step approach to developing defensible, cost of service-based rates.
How to be financially prepared for California's next drought.

These sessions will feature BB&K Partner Kelly Salt, one of California's most well-known authorities on ratemaking law. Kelly works with public agencies on bond and municipal finance matters, rate setting and compliance with Propositions 218 and 26, and drought management and water conservation programs.

REGISTRATION
$40 early-bird, $50 general admission (early-bird ends September 23 for San Diego, and October 28 for Oakland).
Attendees can choose to attend one of the following sessions being offered. Please select the appropriate location/date below to register.

Click Here to Register for San Diego Workshop
Date: Thursday, Oct. 6
Time: 9:30 a.m. - 3:30 p.m.
Location: Vallecitos Water District, 201 Vallecitos de Oro, San Marcos, CA 92069
Room: Training Room
This session is limited to the first 30 registrants. Ticket sales will end Monday, Oct. 3.

Click Here to Register for Oakland Workshop
Date: Thursday, Jan. 12
Time: 9:30 a.m. - 3:30 p.m.
Location: East Bay Municipal Utility District, 375 11th Street, Oakland, CA 94607
Room: Large Training Room
This session is limited to the first 35 registrants. Ticket sales will end Thursday, Jan. 5.

Ensuring the Financial Health of Your Utility After California's Historic Drought

05 Oct 2016 00:00:00 -0800

As agencies recover from a period of reduced water sales revenues as a result of California's historic drought, several questions remain as to what to expect going forward.

RFC is offering three workshops to help California utilities learn how to develop sustainable financial plans and prepare for California's next drought. Come learn from industry experts:

How to generate sufficient revenue with uncertain sales projections.
A step-by-step approach to developing defensible, cost of service-based rates.
How to be financially prepared for California's next drought.

The San Diego and Oakland sessions will feature BB&K Partner Kelly Salt, one of California's most well-known authorities on ratemaking law. Kelly works with public agencies on bond and municipal finance matters, rate setting and compliance with Propositions 218 and 26, and drought management and water conservation programs.

REGISTRATION
$40 early-bird, $50 general admission (early-bird ends September 23 for Los Angeles and San Diego, and October 28 for Oakland).
Attendees can choose to attend one of the three sessions being offered. Please select the appropriate location/date below to register.

Click Here to Register for Los Angeles Workshop
Date: Wednesday, Oct. 5
Time: 9:30 a.m. - 3:30 p.m.
Location: Union Bank Plaza, 445 S. Figueroa Street, Los Angeles, CA 90071
Room: Coral Tree Pavilion
This session is limited to the first 25 registrants. Ticket sales will end Monday, Oct. 3.

Click Here to Register for San Diego Workshop
Date: Thursday, Oct. 6
Time: 9:30 a.m. - 3:30 p.m.
Location: Vallecitos Water District, 201 Vallecitos de Oro, San Marcos, CA 92069
Room: Training Room
This session is limited to the first 30 registrants. Ticket sales will end Monday, Oct. 3.

Click Here to Register for Oakland Workshop
Date: Thursday, Jan. 12
Time: 9:30 a.m. - 3:30 p.m.
Location: East Bay Municipal Utility District, 375 11th Street, Oakland, CA 94607
Room: Large Training Room
This session is limited to the first 35 registrants. Ticket sales will end Thursday, Jan. 5.

Reimagining the Cadillac Desert

15 Sep 2016 00:00:00 -0800

Marc Reisner’s "Cadillac Desert" masterfully chronicled how early settlers transformed the West, turning barren desert into rich agricultural land and residential oases.

Now, faced with a historic drought, a growing population and a changing climate, we must reimagine our Cadillac Desert. On Sept. 15, 2016, Best Best & Krieger LLP gathered leaders and experts in design, municipal planning, academia, agriculture, policy, finance and technology to share their visions for the West's water future.

We invite you to join BB&K Managing Partner Eric Garner, Partner John Brown and others, along with an esteemed group of speakers for this unique day-long conversation on water and our future.

Join the Conversation

#BBKCadDesert

@BBKlaw

Sessions

Click on session titles to view video

8:30 a.m.: Welcome and Opening Remarks [video] -Eric Garner, Managing Partner, Best Best & Krieger LLP

8:45 – 9:30 a.m.: The Forever Drought [video]
Bill Patzert, a climate scientist at NASA’s Jet Propulsion Laboratory, provided an overview of our current water reality. He discussed the outlook for drought relief, future water trends and what it all means for water suppliers and consumers.
See Bill's presentation here.

9:30 – 10:45 a.m.: Where Will Water Come From? [video]
This panel examined the water supply landscape of the future. Some of the region’s foremost water experts weighed in on the role of imported water, local water sustainability projects, conservation, technology, finance and other factors in meeting the challenges of the West’s water future.

Mark Gold, Associate Vice Chancellor for Environment and Sustainability, UCLA Institute of the Environment and Sustainability

Richard Howitt, Professor Emeritus, U.C. Davis and ERA Economics (See Richard's presentation here)

Jeff Kightlinger, General Manager/Chief Executive Officer, The Metropolitan Water District of Southern California

Moderator: Eric Garner, Managing Partner, BB&K

10:45 – 11 a.m.: Networking Break (Plaza)

11 a.m. – 12:15 p.m.: Water and Technology [video]
Innovation in water technology has outpaced its adoption. Can we surmount the obstacles to technological adoption in response to growing water stresses? This panel of industry innovators described available and emerging water technologies and discuss how they are reinventing water management to deploy technologies in public and private sectors.

Howard Brewen, Superintendent, City of San Luis Obispo Water Resource Recovery Facility (See Howard's presentation here)

Eric Hoek, Founder and CEO, Water Planet, Inc. (See Eric's presentation here)

Paul Gagliardo, Innovation Director, American Water (See Paul's presentation here)

Moderator: Laura Shenkar, Founder and Principal, Artemis Water Strategy (See Laura's presentation here)

12:15 – 1 p.m.: Lunch (Heritage Hall)

1 – 1:30 p.m.: Using Nature’s Technology in Response to Drought [video] (Heritage Hall)
Theodore Payne Foundation Director of Outreach Lisa Novick presented on the beauty and benefits of native landscapes. She highlighted California’s rich palette of native plants, which use up to 80 percent less water while supporting ecosystems and promoting watershed health.
See Lisa's presentation here
Nature's Technology Reading List

1:45 – 3 p.m.: How are Cities Looking at Water? [video]
Cities are finding it increasingly difficult to provide clean and affordable water service in the face of water shortages and rapidly changing regulatory, physical and fiscal constraints. This panel of present and former leaders from major municipal water agencies discussed innovative strategies for delivering water in the water-scarce West.

Shana Epstein, General Manager, Ventura Water (See Shana's presentation here)

Pat Mulroy, Senior Fellow, William S. Boyd School of Law, UNLV, Climate Adaptation and Environmental Policy, Brookings Institution

David Pettijohn, Director of Water Resources, Los Angeles Department of Water and Power (See David's presentation here)

Moderator: Scott Burton, Utilities General Manager, City of Ontario

3 p.m. – 3:15 p.m. Networking Break (Plaza)

3:15 – 4:30 p.m.: Modern Urban Living in the Dry Age [video]
A century of urbanization has profoundly impacted water resources in Western cities. This panel discussed how design can drive the (re)adaptation of our urban landscapes to water scarcity. Panelists described the water-smart environments of our future and discussed the considerations and tools that inform water-smart design choices.

Hadley Arnold, Director, Arid Lands Institute (See Hadley's presentation here)

Stephanie Pincetl, Director, UCLA California Center for Sustainable Communities (See Stephanie's presentation here)

Mark Hanna, Senior Principal Water Resources Engineer, Geosyntec Consultants (See Mark's presentation here)

Moderator: Paeter Garcia, Partner, BB&K

4:30 – 4:45 p.m.: Closing Remarks

4:45 – 6 p.m.: Networking Reception (Plaza)

Click here to view the program for the day as a PDF.

Additional Reading:

“Pacific Ocean’s Response to Greenhouse Gases Could Extend California Drought for Centuries,” UCLA, Sept. 15, 2016 (submitted by Bill Patzert)

Maven’s Notebook Three-Part Series on Reimagining the Cadillac Desert:

Speaker Bios

Hadley Arnold leads the Arid Lands Institute, a research, teaching and outreach center. ALI creates new planning and design tools solving water-supply challenges in drylands. ALI has built collaborations between leading architecture and engineering firms, public agencies, university science and policy teams, and university design programs in 30 states and around the world. ALI research has been supported by the AIA |Los Angeles, Holcim Foundation, Buckminster Fuller Institute, US Department of Housing and Urban Development, EPA, City of LA Mayor’s Office for Great Streets, Metropolitan Water District of Southern California, Metabolic Studio, and the AIA College of Fellows 2015 Latrobe Prize.

Howard Brewen is the superintendent of the City of San Luis Obispo’s Water Resource Recovery Facility. Howard’s entrepreneurial experience in the private sector has brought sustainability innovation to the municipal environment. Under Howard’s direction, the City collaborated with Pacific Gas and Electric in a $9.75 million Energy Efficiency Project at the WRRF, the first of its kind in California. Howard is currently spearheading a $105 million WRRF upgrade that will deliver the latest in water resource recovery technology. Howard is also working with California Polytechnic State University, San Luis Obispo to further an extensive student research and development project on the use of algae for wastewater treatment and biofuel, which is housed at the City’s WRRF.

John Brown (Program Co-Chair), a partner at BB&K, is a public lawyer and has represented as general and special counsel a variety of California public agencies including cities, redevelopment agencies, special districts and school districts. He is the city attorney for the cities of Ontario and La Habra Heights and the town attorney of the Town of Apple Valley. John also acts as general counsel for a variety of other public agencies. He has served as general counsel to the Elsinore Valley Municipal Water District for more than 40 years and also acts as general counsel to the Hi-Desert Water District.

Scott Burton is the general manager of the City of Ontario’s Municipal Utilities. He has served in various capacities with the City over the past 16 years and, prior to that, was an engineer with the Yorba Linda Water District and a consulting engineering firm. In his current capacity he leads a staff of 170 dedicated employees responsible for water, sewer, solid waste and recycling enterprise functions serving about 35,000 customer accounts. Ontario is home to a 13-square-mile master planned community that is poised to develop over the next 25 years. With this comes unique challenges in managing, conserving and expanding Ontario’s water supply resources.

Shana Epstein has served as general manager of Ventura Water since 2011. She has led the municipal utility to achieve many important accomplishments, rising to the challenge posed by five years of drought. Shana leads an integrated water agency that operates four treatment/purification plants and maintains more than 600 miles of pipeline. Prior to joining the City of Ventura, Shana served as the environmental utilities manager for the City of Beverly Hills. In this position, she led a 75-person team to manage water, wastewater, stormwater and solid waste.

Paul Gagliardo is the manager of Innovation Development for American Water, the largest publicly traded U.S. water and wastewater utility company. Paul leads the company's Innovation Development Process, which tests and develops new technologies and processes for use in the company and the water industry. He came to American Water in 2009 from Natawa Corporation, a start-up company focused on utilities and technology within a public-private partnership framework, where he served as vice president. He also spent more than 20 years at the City of San Diego, where he created and managed the Aqua2000 Research Center, a program focused on testing new technologies for the water and wastewater business.

Paeter Garcia’s practice areas include water rights, water supply planning and related fields of environmental and natural resources law for both public agency and private clients. A partner at BB&K in Los Angeles, counsels clients on a broad range of water law and policy matters, such as surface and groundwater right issues, water transactions and conveyance, and groundwater management and storage arrangements. Water supply planning and sufficiency analyses are a significant component of his practice. Paeter serves as vice-chair of the Southern California Water Committee’s Urban Water Planning Task Force.

Eric Garner (Program Co-Chair) is managing partner at BB&K and has practiced water law for nearly 30 years at the firm. For the past two decades, he has worked extensively on groundwater matters. He has advised clients throughout California on groundwater issues and was involved in the drafting of the Sustainable Groundwater Management Act. He has worked on surface water issues throughout the state and has drafted water laws in South Africa, Trinidad and Pakistan. Eric co-authored “California Water” and “California Water II,” and is an adjunct law professor at the University of Southern California Gould School of Law.

Professor Mark Gold is the associate vice chancellor for Environment and Sustainability at UCLA. His research focuses on integrated water management, coastal resource management, and urban sustainability. He is spearheading UCLA's first ever Grand Challenge: Thriving in a Hotter Los Angeles by 2050: a Path to 100% Renewable Energy, 100% Local Water and Enhance Ecosystem and Human Health. In addition, Mark serves on L.A. Mayor Eric Garcetti's Water Task Force and is a city representative on the Metropolitan Water District. Prior to working at UCLA, Mark was the president of Heal the Bay for 18 years.

Mark Hanna is a California registered professional engineer and a senior principal in Geosyntec Consultants’ Los Angeles office. His 20 plus years of experience in water resources, water rights and integrated planning allows him to offer multi-sector clients comprehensive solutions to the growing problems of water supply in the natural and urban environment. In addition to several regional planning studies revolving around local water resources, Mark currently leads Frank Gehry's engineering team in the Los Angeles River Vision Study and consults on the redevelopment of several large parcels along the Los Angeles River.

Eric Hoek is chief executive officer at Water Planet, Inc., which develops and markets membrane-based water purification and separation products solutions and services. Previously, Eric was an engineering professor at UCLA and UC Riverside, researching and teaching spanned water treatment, desalination, membrane technology and nanotechnology. He has published extensively on these topics and was an editor of the international journal Desalination and the Encyclopedia of Membrane Science & Technology. His early research and inventions lead to the formation of NanoH2O, now LG Water Solutions. He recently embarked on a 5-year collaboration with Global Classrooms for Peace to improve sanitation and water issues on Fiji’s remote islands.

Richard Howitt is a professor emeritus of agricultural and resource economics at UC Davis and a principal at ERA Economics. He has published widely on agricultural and environmental resource allocation issues, with special emphasis on agricultural land use, water markets and the application of optimization models to resource allocation questions. His research interests include building computer models of how land and water are used, and their calibration to G.I.S-based data sets. He is engaged in an analysis of land use patterns in the Sacramento-San Joaquin Delta and in an assessment of potential economic outcomes for agriculture and recreation in the Delta's primary zone under different flooding and water quality scenarios and the economic impact of groundwater legislation on the California water sector.

Jeffrey Kightlinger is general manager and chief executive officer for The Metropolitan Water District of Southern California. The Metropolitan Water District is the largest municipal water provider in the nation delivering an average of over 2 billion gallons of water a day to 19 million customers across Southern California. Metropolitan serves one out of every two Californians in the six counties of Ventura, Los Angeles, Orange, Riverside, San Bernardino and San Diego. Kightlinger was appointed general manager in February 2006. Prior to that, he served as the general counsel for the agency.

Pat Mulroy serves as a non-resident senior fellow for Climate Adaptation and Environmental Policy for The Brookings Institution and also as a Practitioner in Residence for the Saltman Center for Conflict Resolution at the UNLV William S. Boyd School of Law. She also holds a faculty position at the Desert Research Institute, where she serves as the Maki Distinguished Faculty Associate. Pat also serves on the Wynn Resorts Ltd. Board of Directors. At UNLV’s Boyd School of Law and DRI, Pat’s focus is on helping communities in water-stressed areas throughout both the American Southwest and the world develop strategies to address increased water resource volatility and identify solutions that balance the needs of all stakeholders.

Lisa Novick is the director of outreach for the Theodore Payne Foundation for Wild Flowers and Native Plants. Since joining the Foundation in 2007, Lisa has designed and implemented its K-12 Education and Landscaping for Resilience programs, and has designed and installed dozens of native landscapes in public spaces across the Los Angeles region. In 2015, LFR received a Green Leadership Award from the Los Angeles County Board of Supervisors. A published writer in literary short fiction, Lisa blogs for the Huffington Post and is working on a book of creative nonfiction.

William Patzert, often called the "Prophet of California climate," has been a scientist at the California Institute of Technology’s NASA Jet Propulsion Laboratory in Pasadena, Calif. since 1983. The author of many scientific and popular articles, Bill works with undergraduate and graduate students from all over the world, and lectures at many local universities. A media favorite, he is often sought out by reporters and is regularly seen on local and national television representing NASA and JPL. In a recent article, he was named as one of the West’s most influential individuals in dealing with water issues.

David R. Pettijohn is the director of Water Resources for the Los Angeles Department of Water and Power. With more than 30 years of water utility experience, David has management oversight for water resource activities including strategic planning, watershed management, conservation, water recycling policy, and local resource development, as well as inter-agency coordination activities and legislative affairs. David is a registered civil engineer in the State of California. He serves on the Colorado River Board of California.

Stephanie Pincetl is professor-in-residence at the UCLA Institute of the Environment and Sustainability and director of the California Center for Sustainable Communities at UCLA. Stephanie conducts research on environmental policies and governance and analyzes how institutional rules construct how natural resources and energy are used to support human activities. She is an expert in bringing together interdisciplinary teams of researchers across the biophysical and engineering sciences with the social sciences to address problems of complex urban systems and environmental management.

Laura Shenkar is the founder and a principal at Artemis Water Strategy. She works with leading corporations and water utilities, with water tech companies and investors to drive deployment of advanced water technology. With Generate Capital, Artemis has adapted finance innovations from the solar industry to build the first water project finance vehicles. More than 1,000 companies have participated in Artemis’ nonprofit Artemis Top 50 company competition, which has identified the early leaders in water tech. Artemis clients include Walmart, the U.S. Navy, Intel as well as the governments of Canada, Singapore and Israel.

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Bill Addresses Excessive Water Use by Some California Urban Retail Water Purveyors

12 Sep 2016 00:00:00 -0800

A new law signed by Gov. Jerry Brown requires that, when specified water shortage conditions are met, public and private urban retail water suppliers must establish a method to identify and discourage excessive water use by residential metered water customers. (This applies to water suppliers that provide potable municipal water to more than 3,000 end users, or more than 3,000 acre-feet of potable water annually.) Under Senate Bill 814, signed Aug. 29, the authorized methods for discouraging excessive water use include tiered block water rates, budget-based tiered water rates, and fines and penalties.

For any public urban retail water supplier, the adoption of any such tiered block or budget-based tiered water rates, however, must still comply with the procedural and substantive requirements of California Constitution article XIII D, section 6 (commonly referred to as Proposition 218) governing property-related water service fees and charges.

SB 814 requires retail urban water suppliers to put in place rules that define “excessive water use” and impose them during the following prescribed water shortage periods:

during any period in which the Governor has issued an emergency proclamation based on statewide drought conditions to an urban retail water supplier that has moved into a water conservation stage of action requiring mandatory water use restrictions pursuant to its water shortage contingency plan;
during any period in which an urban retail water supplier has moved into a water conservation stage of action in response to a local water supply shortage requiring mandatory water use restrictions pursuant to its water shortage contingency plan; and
during any period in which the Governor has issued an emergency proclamation based on local drought conditions and an urban retail water supplier is affected.

During these periods, urban retail water suppliers have two choices for addressing excessive water use by metered residential customers: 1.) they may impose tiered block water rates, budget-based tiered water rates, or rate surcharges, 2.) they may adopt an excessive water use ordinance, rule or tariff condition, and impose fines and penalties for violations. Under the second choice, a violation of an excessive water use ordinance, rule or tariff condition shall be subject to an infraction or a civil administrative fine or penalty. The penalty for a violation may include, but is not limited to, a fine of up to $500 for each 100 cubic feet of water used above the excessive water use threshold established by the urban retail water supplier in a billing cycle. Additionally, the penalty may be added to a customer’s water bill.

These requirements do not apply to an urban retail water supplier that is not fully metered. But such retail suppliers are required to have in place an ordinance, resolution, rule or tariff condition that imposes penalties for prohibited uses of water.

California remains in a drought emergency that Brown declared in January 2014.

In response to that drought emergency, from June 2015 to May of this year, the State imposed mandatory water conservation targets on cities and water districts, with potential fines for agencies that failed to meet them. In June, the California State Water Resources Control Board lifted those and instead allowed local agencies to set their own targets. The mandatory use targets, however, could be brought back starting in January 2017 if statewide conservation levels fail and rains do not materialize this upcoming winter to replenish water supplies. In that event, these new rules would impact retail urban water suppliers.

If you have any questions about this legislation or how it may impact your agency, please contact the attorney author of this Legal Alert listed to the right in the firm’s Public Finance practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

No Good Deed Goes Unpunished: Public Agency Liability for Flood Control

21 Dec 2015 00:00:00 -0800

Beginning the afternoon of April 3, 2006 and continuing through the next, the rains came to Merced County. They were unprecedented. For a six-hour period in the worst hit area, the rainfall was a one-in-445-year event, and for a 12-hour period, the rainfall was a one-in-113-year event. Nevertheless, for 12 hours, the creeks and canals handled the storm flows, which caused the water levels to rise from 157 feet above sea level to more than 164 feet above sea level. But on April 4, at approximately 7:30 a.m., after more than five hours of overtopping, the levee on one of the canals washed out and the waters flooded an adjacent neighborhood.

By September 2007, more than 2,000 residents of the adjacent neighborhood sued the Merced Irrigation District and the City of Merced and Merced
County. Together, these public agencies were an informal group called the Merced Streams Group that, for many years, worked together to maintain the streams and canals so that they would not flood adjacent properties and, also, carry irrigation water. After approximately 200 depositions, dozens of experts and more than four years of litigation, the City settled for less than it would have cost to try the case. This experience highlights the complexity of flood cases and the breadth of the laws governing liability for flood control facilities.

Click here to read the entire article, published in the November/December 2015 issue of Municipal Lawyer, a bimonthly magazine offered by the International Municipal Lawyers Association.

New California Laws Impacting Public Agencies

18 Dec 2015 00:00:00 -0800

There were many bills passed by California lawmakers this year that will impact municipalities and other public agencies. Follow the link below to read more about the bills that are of specific importance to your work. Please contact us for further information about the bills you see here, or any legal matters with which you need assistance.

RECENT CHANGES

AB 1 - Drought: local governments: fines. Prohibits a city, county, or city and county from imposing a fine under any ordinance for a failure to water a lawn or having a brown lawn during a period for which the Governor has issued a proclamation of a state of emergency based on drought conditions.

AB 2 - Community revitalization authority. Authorizes certain local agencies to form a community revitalization authority within a community revitalization and investment area, as defined, to carry out provisions of the Community Redevelopment Law in that area for purposes related to, among other things, infrastructure, affordable housing and economic revitalization.

SB 21 - Political Reform Act of 1974: gifts of travel. Requires a nonprofit organization that regularly organizes and hosts travel for elected officials, as specified, and that pays for these types of travel for an elected state officer or local elected officeholder, to disclose the names of donors who, in the preceding year, both donated to the nonprofit organization and accompanied an elected officer or officeholder for any portion of the travel, as specified. The bill requires a person who receives a gift of a travel payment from any source to report the travel destination on his or her statement of economic interests. This bill contains other related provisions and other existing laws.

SB 34 - Automated license plate recognition systems: use of data. This bill imposes specified requirements on an "ALPR operator" as defined, including, among others, maintaining reasonable security procedures and practices to protect ALPR information and implementing a usage and privacy policy with respect to that information, as specified. The bill imposes similar requirements on an "ALPR end-user," as defined. This bill contains other related provisions and other existing laws.

AB 57 - Telecommunications: wireless telecommunication facilities. Provides that a collocation or siting application for a wireless telecommunications facility is deemed approved if the city or county fails to approve or disapprove the application within the reasonable time periods specified in applicable decisions of the Federal Communications Commission, all required public notices have been provided regarding the application, and the applicant has provided a notice to the city or county that the reasonable time period has lapsed. This bill contains other existing laws.

AB 69 - Peace officers: body-worn cameras. Requires law enforcement agencies to consider specified best practices when establishing policies and procedures for downloading and storing data from body-worn cameras, including, among other things, prohibiting the unauthorized use, duplication, or distribution of the data, and establishing storage periods for evidentiary and non-evidentiary data, as defined.

SB 88 - Water. Authorizes the State Water Resources Control Board to order consolidation with a receiving water system where a public water system, or a state small water system within a disadvantaged community, consistently fails to provide an adequate supply of safe drinking water. This bill also authorizes the Board to order the extension of service to an area that does not have access to an adequate supply of safe drinking water so long as the extension of service is an interim extension of service in preparation for consolidation.

SB 107 - Local government. Current law dissolved redevelopment agencies and community development agencies as of Feb. 1, 2012, and provides for the designation of successor agencies to wind down the affairs of the dissolved redevelopment agencies and to, among other things, make payments due for enforceable obligations and to perform obligations required pursuant to any enforceable obligation. This bill provides that any action by the Department of Finance, that occurred on or after June 28, 2011, carrying out the Department's obligations under the provisions described above constitutes a Department action for the preparation, development, or administration of the State budget and is exempt from the Administrative Procedures Act.

AB 169 - Local government: public records. If a local agency, except a school district, maintains an Internet resource, including, but not limited to an Internet website, Internet web page, or Internet web portal, which the local agency describes or titles as "open data," and the local agency voluntarily posts a public record on that Internet resource, then this bill requires the local agency to post the public record in an open format that meets specified requirements, including, among others, that the format is able to be retrieved, downloaded, indexed, and searched by a commonly used Internet search application.

AB 219 - Public works: concrete delivery. Current law defines "public works," for purposes of requirements regarding the payment of prevailing wages for public works projects, to include, among other things, the hauling of refuse from a public works site to an outside disposal location with respect to contracts involving any state agency. This bill expands the definition of "public works" for these purposes to include the hauling and delivery of ready-mixed concrete, as defined, to carry out a public works contract, with respect to contracts involving any state agency or any political subdivision of the State.

SB 239 - Local services: contracts: fire protection services. With certain exceptions, this bill permits a public agency to exercise new or extended services outside the public agency's jurisdictional boundaries pursuant to a fire protection contract, as defined, only if the public agency receives written approval from the local agency formation commission in the affected county. This bill contains other related provisions and other existing laws.

AB 243 - Medical marijuana. Requires the Department of Food and Agriculture, the Department of Pesticide Regulation, the State Department of Public Health, the Department of Fish and Wildlife, and the State Water Resources Control Board to promulgate regulations or standards relating to medical marijuana and its cultivation, as specified. The bill also requires various state agencies to take specified actions to mitigate the impact that marijuana cultivation has on the environment.

AB 266 - Medical marijuana. Enacts the Medical Marijuana Regulation and Safety Act for the licensure and regulation of medical marijuana and establishes, within the Department of Consumer Affairs, the Bureau of Medical Marijuana Regulation, under the supervision and control of the director of Consumer Affairs. The bill would require the director to administer and enforce the provisions of the Act.

SB 272 - The California Public Records Act: local agencies: inventory. Requires each local agency, except a local educational agency, in implementing the California Public Records Act, to create a catalog of enterprise systems, as defined, to make the catalog publicly available upon request in the office of the person or officer designated by the agency's legislative body, and to post the catalog on the local agency's Internet website.

AB 277 (& SB 493) - Legislation narrows use of at-large elections to elect public officials. AB 277 codifies the holding in Jauregui v. City of Palmdale (2014) 226 Cal.App.4th 781 to prohibit the use of at-large elections in a political subdivision if it would impair the ability of a protected class to elect their chosen candidates or otherwise influence the outcome of an election. The definition of “political subdivision” has been amended to expressly include a charter city, charter county, or charter city and county.

AB 313 - Enhanced infrastructure financing districts. Requires, after the adoption of a resolution of intention to establish a proposed district, the legislative body to send a copy of the resolution to the public financing authority. This bill would revise the duties of the public financing authority after the resolution of intention to establish the proposed district has been adopted, so that the public financing authority, instead of the legislative body, will perform the specified duties related to the preparation, proposal, and adoption of the infrastructure financing plan and the adoption of the formation of the district.

SB 331 – Public contracts: local agencies: negotiations. Enacts the Civic Reporting Openness in Negotiations Efficiency Act to establish specific procedures for the negotiation and approval of certain contracts valued at $250,000 or more for goods or services by cities, counties, cities and counties, or special districts that have adopted a civic openness in negotiations ordinance, defined as an ordinance imposing specified requirements as part of any collective bargaining process undertaken pursuant to the Meyers-Milias-Brown Act. The Act requires the designation of an independent auditor to review and report on the cost of any proposed contract.

SB 374 - Local agency design-build projects: transit districts. This bill specifies that the definition of a local agency authorized to use the design-build method of project delivery includes the San Diego Association of Governments. The bill defines projects, as it pertains to the San Diego Association of Governments, to include development projects adjacent, or physically or functionally related, to transit facilities developed by the association.

SB 383 – Civil actions: objections to pleadings. Requires a demurring party in certain civil actions, before filing the demurrer, to engage in a specified meet-and-confer process with the party who filed the pleading demurred to. This is for the purpose of determining whether an agreement can be reached as to the filing of an amended pleading that would resolve the objections to be raised in the demurrer. The bill prohibits a party from amending a complaint or cross-complaint more than three times in response to a demurrer filed before the case is at issue, except as specified.

AB 401 - Low-Income Water Rate Assistance Program. Requires the State Water Resources Control Board, no later than Jan. 1, 2018, in collaboration with the State Board of Equalization and relevant stakeholders, to develop a plan for the funding and implementation of the Low-Income Water Rate Assistance Program, which includes specified elements. The bill permits the board to consider existing rate assistance programs authorized by the commission in developing the plan and authorizes the plan to include recommendations for other cost-effective methods of offering assistance to low-income water customers.

AB 402 – Local agency services: contracts. Establishes a pilot program, until Jan. 1, 2021, for the Napa and San Bernardino commissions that permits those commissions to authorize a city or district to provide new or extended services outside both its jurisdictional boundaries and its sphere of influence under specified circumstances. This bill contains other related provisions.

SB 415 - Voter participation. Beginning Jan. 1, 2018, this law prohibits a political subdivision, as defined, from holding an election, other than on a statewide election date, if holding an election on a non-concurrent date has previously resulted in voter turnout for a regularly scheduled election in that political subdivision being at least 25 percent less than the average voter turnout within the political subdivision for the previous four statewide general elections, except as specified. This bill contains other related provisions.

SB 493 (& AB 277) - Legislation narrows use of at-large elections to elect public officials. SB 493 authorizes the legislative body of a city with a population of fewer than 100,000 people to adopt an ordinance that requires the members of the legislative body to be elected by district without submitting the ordinance to the voters for approval.

SB 533 - Cities and counties: sales and use tax agreements. Repeals a specified prohibition of the Bradley-Burns Uniform Local Sales and Use Tax Law and instead prohibits, on or after Jan. 1, a local agency from entering into any form of agreement that would result, directly or indirectly, in the payment, transfer, diversion, or rebate of Bradley-Burns local tax revenues to any person, as defined, for any purpose, if the agreement results in a reduction in the amount of Bradley-Burns local tax revenues that, in the absence of the agreement, would be received by another local agency and the retailer continues to maintain a physical presence within the territorial jurisdiction of that other local agency, with specified exceptions.

AB 552 - Public works contracts: damages. Among other things, this bill provides that a public works contract, entered into on or after Jan. 1, that contains a clause expressly requiring a contractor to be responsible for delay damages, as defined, is not enforceable unless the delay damages have been liquidated to a set amount and identified in the public works contract. Under the bill, these provisions do not apply to specified state agencies. The bill also makes findings and declarations related to public contracts.

SB 555 - Urban retail water suppliers: water loss management. This bill requires each urban retail water supplier, on or before Oct. 1, 2017, and on or before Oct. 1 of each year thereafter, to submit a completed and validated water loss audit report for the previous calendar year or previous fiscal year as prescribed by rules adopted by the Department of Water Resources on or before Jan. 1, 2017, and updated as provided. The bill requires the Department to post all validated water loss audit reports on its website in a manner that allows for comparisons across water suppliers and to make these reports available for public viewing.

SB 570 - Personal information: privacy: breach. Current law requires a person, business, or agency that is required to issue a security breach notification to meet specific requirements, including that the notification be written in plain language. This bill additionally requires the security breach notification to be titled "Notice of Data Breach" and to present the information under prescribed headings. The bill prescribes a model security breach notification form, as specified.

AB 594 - Political Reform Act of 1974: campaign statements. Recasts the requirements for filing pre-election statements and repeals other reporting requirements, including supplemental pre-election statements and supplemental independent expenditure reports. This bill contains other related provisions and other existing laws.

AB 622 - Employment: E-Verify system: unlawful business practices. Expands the definition of an unlawful employment practice to prohibit an employer or any other person or entity from using the E-Verify system at a time or in a manner not required by a specified federal law or not authorized by a federal agency memorandum of understanding to check the employment authorization status of an existing employee or an applicant who has not received an offer of employment, except as required by federal law or as a condition of receiving federal funds.

SB 643 - Medical marijuana. Sets forth standards for a physician and surgeon prescribing medical cannabis and requires the Medical Board of California to prioritize its investigative and prosecutorial resources to identify and discipline physicians and surgeons that have repeatedly recommended excessive cannabis to patients for medical purposes or repeatedly recommended cannabis to patients for medical purposes without a good faith examination, as specified. The bill requires the Bureau of Medical Marijuana to require an applicant to furnish a full set of fingerprints for the purposes of conducting criminal history record checks.

SB 664 - Water: urban water management planning. This bill requires an urban water supplier to include within its plan, beginning Jan. 1, 2020, a seismic risk assessment and mitigation plan to assess the vulnerability of each of the various facilities of a water system and mitigate those vulnerabilities. This bill also authorizes an urban water supplier to comply with this requirement by submitting a copy of the most recently adopted local hazard mitigation plan or multi-hazard mitigation plan under specified federal law that addresses seismic risk.

AB 744 - Planning and zoning: density bonuses. Current law prohibits a city, county, or city and county from requiring a vehicular parking ratio for a housing development that meets specified criteria in excess of specified ratios. Notwithstanding the above-described provisions, this bill additionally prohibits, at the request of the developer, a city, county, or city and county from imposing a vehicular parking ratio, inclusive of handicapped and guest parking, in excess of .5 spaces per bedroom on a development that includes the maximum percentage of low- or very low-income units, as specified, and is located within 1/2 mile of a major transit stop, as defined, and there is unobstructed access to the transit stop from the development.

SB 761 - Advertising: Internet private residence rental listings: notice. Requires a hosting platform, as defined, to provide a specific notice to an occupant listing a residence for short-term rental on a hosting platform that states, among other things, that, if the occupant is a tenant, listing the room, home, condominium, or apartment may violate the lease or contract and could result in legal action by the landlord, including possible eviction.

AB 809 - Local initiative measures: ballot printing specifications. Current law requires that the ballots used when voting on a proposed county, city, or district ordinance submitted to the voters as an initiative measure have printed on them specified text relating to the proposed ordinance and dictates the placement of that text. This bill also requires that, if the ordinance proposes to impose a tax or raise the rate of a tax to be levied, the ballot include in the statement of the ordinance the amount of money to be raised annually and the rate and duration of the tax to be levied.

AB 848 - Alcoholism and drug abuse treatment facilities. Current law requires the State Department of Health Care Services to license adult alcoholism or drug abuse recovery or treatment facilities, as defined. This bill authorizes an adult alcoholism or drug abuse recovery or treatment facility that is licensed under those provisions to allow a licensed physician and surgeon or other health care practitioner, as defined, to provide incidental medical services, as defined, to a resident of the facility at the facility premises under specified limited circumstances.

AB 851 - Local government: organization: disincorporations. Current law authorizes a local agency that is conducting proceedings for the incorporation of a city, formation of a district, change of organization, a reorganization, a change of organization of a city, or a municipal reorganization to propose the adoption of a special tax on behalf of the affected city or district in accordance with this procedure. This bill additionally authorizes a local agency conducting proceedings for the disincorporation of a city to propose the adoption of a special tax on behalf of an affected city in accordance with the above-described procedure.

AB 852 - Public works: prevailing wages. Expands the definition of "public works," for the purposes of provisions relating to the prevailing rate of per diem wages, to also include any construction, alteration, demolition, installation, or repair work done under private contract on a project for a general acute care hospital, except on a project for a rural general acute care hospital with a maximum of 76 beds, when the project is paid for, in whole or in part, with the proceeds of conduit revenue bonds, as defined, that were issued on or after Jan. 1, 2016. This bill contains other related provisions and other existing laws.

AB 856 - Invasion of privacy. Expands liability for physical invasion of privacy to additionally include a person knowingly entering into the airspace above the land of another person without permission, as provided.

AB 901 - Solid waste: reporting requirements: enforcement. The California Integrated Waste Management Act of 1989, administered by the Department of Resources Recycling and Recovery, generally regulates the disposal, management, and recycling of solid waste. This bill revises specified provisions by, among other things, 1.) requiring recycling and composting operations and facilities to submit specified information directly to the Department, rather than to counties, 2.) requiring disposal facility operators to submit tonnage information to the Department, and to counties only on request, and 3.) deleting the requirement for counties to submit that information to cities, regional agencies and the Department.

AB 952 - Local government: vacancies. Provides that if a city council fills a vacancy in an elective office by appointment, and that vacancy occurred in the first half of the term of office and at least 130 days prior to the next general municipal election, the person appointed to fill the vacancy holds office until the next general municipal election at which a person is elected to fill that vacancy, and thereafter, until the person elected is qualified.

AB 953 - Law enforcement: racial profiling. Enacts the Racial and Identity Profiling Act of 2015, which, among other changes, revises the definition of racial profiling to instead refer to racial or identity profiling, and makes a conforming change to the prohibition against peace officers engaging in that practice.

AB 990 - Political Reform Act of 1974: advertisement disclosures. The Political Reform Act of 1974 imposes various disclosure statement requirements with respect to advertisements supporting or opposing a candidate or ballot measure. This bill requires that disclosure statements be printed in no less than 14-point bold, sans serif type font. The bill requires that an advertisement supporting or opposing a candidate that is paid for by an independent expenditure include a disclosure statement with specific content and, if the advertisement is mailed, it requires that the disclosure statement be located within a quarter of an inch of the recipient's name and address and be contained within a box that meets prescribed criteria.

AB 1020 (& AB 1461) - Expanded options for voter registration. AB 1020 authorizes persons to pre-register to vote in an election if that person is at least 16 years of age and makes other voter registration changes applicable to local elections officials.

AB 1077 - Mutual water companies: open meetings. Prohibits a mutual water company from meeting solely in an executive session without holding a meeting. The bill requires notice of a meeting to be given to an eligible person at least four days prior to the meetings. The bill also requires a board of directors of a mutual water company to allow an eligible person to personally attend a meeting of the board, if the eligible person gave the board at least 24 hours advance written notice of his or her intent to personally attend the meeting.

AB 1119 - Public utilities: municipal corporations: rights of way. Requires a municipal corporation, before using any street, alley, avenue or highway within any other municipal corporation or county, to request of the municipal corporation or county that has control over the street, alley, avenue or highway to agree with it upon the location of the use and the terms and conditions to which the use shall be subject. This bill contains other related provisions and other existing laws.

AB 1164 - Water conservation: drought tolerant landscaping. Prohibits a city, including a charter city, county, and city and county, from enacting or enforcing any ordinance or regulation that prohibits the installation of drought tolerant landscaping, synthetic grass or artificial turf on residential property, as specified. The bill additionally states that this is an issue of statewide concern. This bill contains other related provisions.

AB 1191 – Quimby Act: fees. This bill defines the term "fee," as used in the Quimby Act with regard to the expenditure of fees, to include any interest income generated from a fee charged and collected pursuant to that Act. The bill provides that these provisions are declaratory of current law.

AB 1194 - Mental health: involuntary commitment. Under the Lanterman-Petris-Short Act, when a person, as a result of mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, he or she may, upon probable cause, be taken into custody and placed in a facility for 72-hour treatment and evaluation. This bill provides that, when determining if a person should be taken into custody pursuant to specified provisions, the individual making that determination shall consider available relevant information about the historical course of the person's mental disorder if the individual concludes that the information has a reasonable bearing on the determination, and that the individual shall not be limited to consideration of the danger of imminent harm.

AB 1222 - Tow trucks. Current law makes it a misdemeanor for the owner or operator of a tow truck to stop at the scene of an accident or near a disabled vehicle for the purpose of soliciting an engagement for towing services, either directly or indirectly, or to furnish any towing services, unless summoned to the scene, requested to stop, or flagged down by the owner or operator of a disabled vehicle, or requested to perform the service by a law enforcement officer or public agency pursuant to that agency's procedures. This bill applies those provisions to a towing company.

AB 1303 - Subdivision Map Act: map expiration dates. Extends, by 24 months, the expiration date of any approved tentative map or vesting tentative map that was approved on or after Jan. 1, 2002, and not later than July 11, 2013, within a county that meets certain criteria, except as specified. The bill additionally requires the extension of an approved or conditionally approved tentative map or vesting tentative map, or parcel map for which a tentative map or vesting tentative map was approved on or before Dec. 31, 2001, upon application by the subdivider at least 90 days prior to the expiration of the map, as specified.

AB 1358 – School facilities: design-build contracts. Current law authorizes the governing board of a school district, until Jan. 1, 2020, and upon a determination by the governing board of the school district that it is in the best interest of the school district, to enter into a design-build contract for both the design and construction of a school facility if that expenditure exceeds $2.5 million, as provided. This bill makes those provisions inoperative on July 1, 2016, and as of that date, instead authorizes, until Jan. 1, 2025, a school district, with the approval of the governing board of the school district, to procure design-build contracts for public works projects in excess of $1 million, awarding the contract to either the low bid or the best value, as provided.

AB 1431 - Local Agency Public Construction Act: job order contracting. The Local Agency Public Construction Act authorizes job order contracting, as provided, by the Los Angeles Unified School District, until Dec.31, 2020. This bill repeals the provisions relating to the LAUSD and instead authorizes job order contracting in a similar manner for school districts until Jan. 1, 2022.

AB 1461 (& AB 1020) - Expanded options for voter registration. AB 1461 requires the Secretary of State and Department of Motor Vehicles to establish the California New Motor Voter Program. Under this program, the DMV is required to electronically provide to the Secretary of State the records of a person issued an original or renewal driver’s license or state identification card. That person is automatically registered to vote unless s/he affirmatively declines to be registered to vote or is deemed to be ineligible to vote.

AB 1533 - Infrastructure financing. The Bergeson-Peace Infrastructure and Economic Development Bank Act makes findings and declarations, provides definitions and authorizes the board to take various actions in connection with the bank, including the issuance of bonds, as specified. This bill, among other things, revises the definition of economic development facilities to include facilities that are used to provide goods movement and defines goods movement-related infrastructure. The bill revises the definition of port facilities to specifically reference airports, landports, waterports and railports.

AB 1544 - Political Reform Act of 1974: behested payments. The Political Reform Act of 1974 provides for the comprehensive regulation of campaign financing and related matters, including campaign contributions, as defined. This bill provides that the provision relating to payments made by a government agency exclusively governs a payment by a governmental agency that is made principally for legislative or governmental purposes at the behest of a candidate who is an elected officer, and consequently the payment is not subject to the reporting requirement that applies generally to payments made for legislative, governmental, or charitable purposes.

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