A San Francisco Superior Court judge today issued a final decision that says the Metropolitan Water District of Southern California must pay the San Diego County Water Authority $188.3 million plus interest for illegal water rates MWD charged from 2011 to 2014. Judge Curtis E.A. Karnow also determined that MWD has been under-calculating the Water Authority’s preferential right to MWD water supplies by improperly excluding hundreds of millions of dollars of payments made by the Water Authority.
Today’s final ruling affirms the tentative ruling Judge Karnow issued July 15. In his final ruling, Judge Karnow rejected all of MWD’s defenses to the Water Authority’s legal challenges, including the contention that the Water Authority consented to being overcharged by the Los Angeles-based wholesaler. Instead, he said the Water Authority is entitled to the damages it claimed – four years of overpayments totaling $188.3 million, plus interest. If allowed to stand, MWD’s overcharges would have exceeded $2 billion over 45 years.
“After five years in court, we have prevailed on the two main points of our lawsuit – that MWD has systematically overcharged the San Diego region’s ratepayers while shorting our rights to MWD water,” said Mark Weston, chair of the Water Authority’s Board of Directors. “Today’s final ruling affirms our efforts to protect San Diego County ratepayers. We will continue to need support from civic and business groups as we fight MWD’s expected appeals and new strategies to overcharge this region.”
In April 2014, Judge Karnow ruled that MWD’s 2011-2014 rates violated California statutes and common law that require public water agencies to limit the rates they charge to the costs of providing their services. He also ruled that MWD’s 2013 and 2014 rates violated Proposition 26, passed by California voters in November 2010 and enshrined in Articles 13A and 13C of the California Constitution. Proposition 26 shifted the burden to public agencies to prove they are not charging more than the actual cost of the services they provide.
Today’s final ruling by Judge Karnow calculated damages owed to the Water Authority by Metropolitan for its illegal rates, along with a determination that MWD’s interpretation of a statutory water rights formula has improperly excluded payments by the Water Authority for transporting the Water Authority’s independent Colorado River water supplies. By law, each MWD member agency is entitled to a percentage of MWD’s available water supplies at any time based on all payments made to MWD throughout history – “excepting the purchase of water.”
The court found that the Water Authority has been purchasing transportation service from MWD to convey water supplies the Water Authority buys from the Imperial Irrigation District and from lining the All American and Coachella canals in the Imperial Valley, rejecting MWD’s argument that the Water Authority’s transfer supplies were purchases of MWD water that should therefore be excluded from the calculation of preferential rights. Correct assessment of the Water Authority’s preferential rights will mean access to tens of thousands of acre-feet of water per year for the San Diego region, a significant increase in supplies.
As the prevailing party in the lawsuit, the Water Authority plans to file a motion to recover its attorney’s fees and costs from MWD. The Water Authority is represented by Keker & Van Nest of San Francisco and by Brownstein Hyatt Farber Schreck, a national firm with offices in San Diego.
The Water Authority’s Board of Directors already has determined that the agency will deduct its litigation expenses and return the remaining money to its 24 member agencies in proportion to their payment of MWD’s illegal overcharges over the four years in dispute. MWD has said it will appeal, and that will delay refunding of the Water Authority’s overpayments.
Additional information about the case, including important court documents, is posted at www.sdcwa.org/mwdrate-challenge.
The Water Authority’s lawsuits stem from historic agreements the agency signed in 2003 to secure independent sources of water from the Colorado River and reduce the San Diego region’s once near-total reliance on MWD for water. To transport its Colorado River water supplies to San Diego County, the Water Authority must use pipelines controlled by MWD, which has a monopoly on imported water distribution facilities in Southern California.
MWD’s current rates were expressly designed to protect its monopoly and to discriminate against the Water Authority by shifting unrelated water supply costs onto transportation rates, while illegally subsidizing MWD’s water supply rate to the benefit of its 25 other member agencies. The Water Authority filed its first rate lawsuit against MWD in 2010, then filed a second suit in 2012 because MWD refused to reform its rates, which effectively force San Diego County ratepayers to subsidize water ratepayers in other parts of Southern California. The two cases were coordinated for trial, with the main issues being broken into two phases of hearings.
Attorneys for the Water Authority argued in the December 2013 Phase 1 trial that MWD had loaded unrelated costs onto the rate it charges for transporting water – a scheme that disproportionately damages San Diego County ratepayers because the Water Authority is the only water agency that uses MWD’s transportation service (also known as “wheeling”) to move large volumes of supplies purchased from sources independent of MWD.
MWD asserted in court that it can set rates without regard to the actual costs of service, and that it can even collect more than the costs of the services it provides, as long as a majority of its board votes for it. MWD also contended in court that it was exempt from Proposition 26, as well as other constitutional and statutory provisions of California law.
On April 24, 2014, Judge Karnow issued a final statement of decision in Phase 1 of the trial that said MWD violated cost-of-service requirements in California’s statutes and common law when setting rates for 2011, 2012, 2013 and 2014. He also said MWD’s 2013 and 2014 rates violate Proposition 26, approved by voters in November 2010 and embodied in the California Constitution as Article 13C. Proposition 26 shifted the burden to public agencies to prove they are not charging more than the actual cost of the services they provide.
After the April 2014 ruling, the Water Authority was forced to file another lawsuit because MWD set its rates for 2015 and 2016 using the same methodology and cost allocation declared by the court to be illegal. That case has been stayed by stipulation of the parties pending the final outcome of the current cases.