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Water ruling could impact California fire fee challenge

Tim Hearden
A judge's recent preliminary ruling that California water rights fees are invalid could have an impact on an organization's lawsuit challenging fees charged for fire prevention in rural areas. The judge agreed the water fees place a disproportionate burden on payers for funding a water rights agency.

SACRAMENTO — A judge’s recent preliminary ruling that California water rights fees are invalid has piqued the interest of a group suing the state over fees charged to rural landowners for fire prevention.

Sacramento County Superior Court Judge Raymond Cadei agreed with petitioners that fees charged by the State Water Resources Control Board disproportionately burden rights holders with funding the agency’s Division of Water Rights.

“The deficiency rises out of the fact that no fees are assessed against the holders of approximately 38 percent of all water rights in California as expressed in acre-feet,” Cadei wrote in his ruling, issued Sept. 6. “This evidence is sufficient to establish that holders of water rights that are not charged fees nevertheless receive a benefit from the division’s regulatory activities ...”

The proposed ruling, which could be finalized at an Oct. 30 hearing, comes as the Howard Jarvis Taxpayers Association is leading a legal challenge against $150-per-structure assessments imposed in rural areas as part of the 2011-2012 budget package.

Simple majorities of the state Legislature passed the fees in an effort to raise $85 million to offset costs to the California Department of Forestry and Fire Protection. The HJTA, along with farm groups such as the California Farm Bureau Federation and California Cattlemen’s Association, assert the fees amount to taxes that required a two-thirds vote.

The HJTA’s class action in the Superior Court here is expected to go to trial early next year. The water lawsuit’s outcome could have an impact “because it stands on the same principle – that fees have got to be reflective on the cost of service,” said Jon Coupal, an attorney and the HJTA’s president.

“I think it’s very important,” he said of the water case. “As government continues to play fast and loose with the notions of what’s a fee and what’s a tax, I think all these cases are going to be important. They are certainly related issues.”

The fire fees are charged to more than 800,000 rural landowners in Cal Fire’s coverage area.

Lawsuits against the water fees were brought several years ago by the CFBF, the Northern California Water Association and other plaintiffs. The groups asserted the fees, which are charged to some 13,000 water rights holders statewide, are an unconstitutional tax. In 2011, the California Supreme Court sent the challenges back to the lower court to hear additional arguments.

When the fees were originally imposed a decade ago, the state water board charged the greater of $100 or 3 cents per acre-foot of entitlement under a water right, the state Farm Bureau explained. In the most recent year, the fee increased to $150 plus 5 cents for each acre-foot above 10 acre-feet.

Among his findings, Cadei asserted the state water board should not have charged contractors in the Central Valley Project for the full amount of their permit rather than the proportion of water actually made available to them in a given year, and said the board had charged “arbitrary” fees to other permit holders.

David Guy, the NCWA’s president, said he did not want to comment until the ruling was final. Water board spokesman George Kostyrko said the agency would not comment on pending litigation.

As with the fire fee, the state Farm Bureau urged water rights holders to pay their bills under protest by filing the appropriate form when paying the fee to the Board of Equalization. Cadei wrote that he would consider the issue of refunds at a future hearing.

CFBF president Paul Wenger said in a statement that farmers and ranchers are “willing to pay their fair share” for services, but they shouldn’t have to “shoulder the full burden of programs just because that’s a convenient way for a government agency to support itself.”

Online

California Farm Bureau Federation: http://cfbf.com

Northern California Water Association: http://www.norcalwater.org

Howard Jarvis Taxpayers Association: http://www.hjta.org

State Water Resources Control Board: http://www.swrcb.ca.gov

California Department of Forestry and Fire Protection: http://www.fire.ca.gov



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