SCSQUARED halfBrad Malamud, San Clemente

After careful legal analysis, in my opinion, the current water rates are illegal. On Oct. 28, the city manager explained the consultant stated the “city stood on solid ground.” The city attorney stated the rates were legal and staff would “come back sometime next year with a proposal to study the water rates and look at other options. I am not entertaining changing the rates until we go through that process.”

If the rates are legal (which they aren’t), why would the city spend money to “go through the process?” Why study “other rates” if the current rates are legal?

Thirty units of water consumed by four different users results in charges from $99 to $200. Since charges are required to be based on costs, this proves the current rates are illegal as the water costs the same in each case. It is telling that the city has refused to refute this analysis. San Juan Capistrano adopted new rates months ago. San Clemente has not.

Professionals need to be held accountable. The consultant should agree to return his fees if the rates are illegal. The city attorney should agree to pay: 1. to defend the lawsuit and 2. resulting damages if the court finds the rates are illegal. The city manager should agree to resign if these rates are illegal.

Council: If these individuals are unwilling to take responsibility, hire professionals that are.

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comments (11)

  • What part being in a very serious drought is not clear to Mr. Malamud? The progressive water rates is the easiest way to enforce conservation. We are all in the same boat as far as conserving water is concerned. If you are unwilling to find ways to conserve then pay the extra price, it’s that simple. Your outsized water bill can help pay for new water resources!

    • The law is the law regardless if there is a different issue you are concerned about. Your desires (progress rates) does not override the law. If your desires were to over shadow the law, why is your view more important than another’s view.

      • Simply this: there is an overriding issue here of a serious drought. You are basing your understanding of the “law” on a recent superior court case that will probably be appealed. But regardless, are your damages here, based on a tiered rate, so significant as to cause you to try to over turn a statewide conservation effort? Consider the bigger picture here. California is a desert and water is a limited resource. Almost all the water we use in Southern California is imported. Your efforts are self-centered and not being done for the greater good. Please reconsider making our City spend money on something so frivolous.

        • Mr Robinson the recent court case that “will probably be appealed” was an appellate ruling to begin with if you are talking about the San Juan water case. The original judgment was against the city of san juan and the most recent judgment was the appellate court agreeing with and upholding the original ruling so may be it is you who needs to change your understanding of the “law”. I agree with your statement “please reconsider making our city spend money on something so frivolous”, which is EXACTLY why the city needs to remodel its tier system now, to avoid another expensive law decision like the city of san juan just lost. Again the law is clear, a tiered system that charges customers more than it costs the water companies to produce and distribute the water is illegal. There are other ways to get people to conserve water other than allowing the state/city municipalities to break an existing law and make a profit off of it in the name of ‘conservation”.

          • Doug has it spot on. Water use restrictions can be applied as the City has already done. These restrictions and common sense cut-backs by our San Clemente residents has resulted in more than required reductions. Why does anyone want tiered water and penalties when voluntary reductions has resulted in conservation?
            More importantly, why has the City continued to use illegal rates? Why does the City violate the law and challenge its residents to file law suits?

          • Perhaps you are not aware of an institution called the California Supreme Court? Just in case you don’t, it’s where cases go after an appellate court ruling if one of the parties doesn’t like the ruling.

            Both you gentlemen seem to be in love with the letter of the law. These are administrative laws, not criminal ones, so your fixation with the law over conservation raises the question of what your objective is.

            Having said that, we can at least agree to disagree.

    • Mr. Robinson’s observations about the drought is correct. His observation regarding “progressive” water rates is questionable. The latest analysis is that a single water rate results in substantially less water use than progressive rates. While counter-intuitive, because total collections under Proposition 218 can only be the cost of water, using tiers by definition results in lower than true cost tier 1 rates (which is why it is illegal). The result is that cheap tier 1 water is not “conserved.” When a single rate is used, everyone conserves.

      • Mr Robinson I am fully aware of what the Supreme Court is, I am also aware that even though Governor Brown has stated on record he disagrees with the San Juan ruling he has not forced the issue onto the Supreme Court, the reason? Because the Supreme Court most likely will not touch this ruling which already had two unanimous decisions, once on the original ruling and once in appellate court. It was VERY clear in both those cases that what San Juan did and apparently what San Clemente is doing is against the law, period. If our Governor, city officials and even you have such a problem with what this law does and doesn’t do then the law needs to be changed, but in the meantime the general public in a Democracy should not stand idly by while any government branch, municipality on a local or national level brazenly breaks a law because “they” consider the end justifies the means, in this case water conservation. As Mr Malamud stated clearly, voluntary water consumption has and is working. I personally have cut my water usage by 2/3rds…again, the argument is not simply about water consumption as you continually argue, it is about allowing a city or municipality to set their own rules and regulations in direct violation of established laws because they “believe” their way somehow justifies breaking established laws they don’t happen to agree with….that is a dangerous thing to allow to happen

  • Its a political water shortage. And politicians are now playing games with rates. So sad we are being duped again. By Ca’.s failed political system. Ideas are promoted to put money in the pockets of a few. New Ca. gas tax, special water rates, etc. We are being robbed again by Ca. politicians. And the sheep cant see it. Fear is the chosen method used to control the flock.
    Works every time.

  • The validity of this “drought” centered money grab by local cities and counties is specious at best and highly suspect in my opinion !!
    In light of the fact that many reports over the past few years have revealed the concern these water suppliers have regarding their dwindling revenue caused by the successful conservation efforts of participating citizens, I find it highly suspicious that a city ‘needs’ to implement some sort of economic incentive that fiscally punishes its constituents.
    Case in point would be to examine the number of building permits currently being granted. Have they increased, decreased or remained the each year over the past 5 – 10 years. If the answer is that the city governments have not curtailed to expansion of existing dwellings or the issuance of permits allowing for the importation of more water consumers, then I find it very hard to accept the argument that they “need” to fiscally punish everyone to force conservation. This all seems like little more than an opportunistic money grab to shore up revenue to continue maintaining a water distribution system that was built to provide an ‘endless’ population expansion that fuels a cities ledger. How can politicians complain about a “critical drought” situation and its devastating impact with one side of their mouths while they fuel greater consumption with the other side. They “can’t” have it both ways!! If this truly is a CRISIS … then prove it by stopping the issuance of any new building permits or property expansions !!
    This tiered rate conservation punishment “is” illegal and should be declared so!

  • The state is just protecting agribusiness and the foolish investment in the west valley. Stating that the individual ratepayer must conserve so that developers and agribusiness can thrive is the reason we must take back control of government so that the people count.
    Makes no sense that I have to let my citrus die so that someone else can sell me the fruit at a major profit. Water should put people first – not business.

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