James Hunter

Sunday, June 7, 2015

Who is the water cop?

Updated June 13, 2015
"Gov. Jerry Brown on Friday said he won't back down on his threat to fine cities, water districts and private water companies $10,000 a day if they fail to meet strict water conservation targets during California's relentless drought.", San Jose Mercury News. 
Which raises the first of several questions. Which State agency or department collects the fines? and what is done with collected fines?

Updated June 10, 2015 But fines (drought surcharges) will be used to compensate for lost revenues.

Reference Advise Letter #473, page 6: (guarantee of revenues, also implies profits)
The proposed Schedule 14.1 further provides that all monies collected by the utility through surcharges or fees shall be booked to the WRAM or a similar memorandum account to offset recovery of lost revenues and that all expenses incurred by the utility to implement Rule 14.1 and Schedule 14.1 that have not been considered in a General Rate Case or other proceeding shall be recoverable by the utility if determined to be reasonable by Commission. These additional monies shall be accumulated by the utility in a separate memorandum account, for disposition as directed or authorized from time to time by the Commission. 
It sounds like SJWC will collect the fines, notice they are called "surcharges" or "fees", rather than fines or penalties.  So that attempts to avoid all the nasty issues like proof, evidence of guilt, a reliable witness, right to confront accuser, innocent until proven guilty.......... The drought is real and may get worse, but this area gets into some scary issues, in terms of a citizen's rights.

The following is an excerpt from the Executive order:
2. The State Water Resources Control Board (Water Board) shall impose restrictions to achieve a statewide 25% reduction in potable urban water usage through February 28, 2016. These restrictions will require water suppliers to California's cities and towns to reduce usage as compared to the amount used in 2013. These restrictions should consider the relative per capita water usage of each water supplier's service area, and require that those areas with high per capita use achieve proportionally greater reductions than those with low use. The California Public Utilities Commission is requested to take similar action with respect to investor-owned utilities providing water services. 
Blogger note: this appears to say, "all ratepayers will get the same percentage reduction, but ratepayers using more water a percentage reduction will actually be more water reduced than a ratepayer using less". This also implies a monthly basic allocation should be based on historical usage.

State Water Resources Control Board (Water Board) is responsible for government (local, county) water utilities and the California Public Utilities Commission is requested to be responsible for  investor-owned water utilities utilities, i.e. San Jose Water Company.
The State Water Board can issue cease-and-desist orders to water suppliers for failure to meet conservation targets. Water agencies that violate those orders are subject to fines of up to $10,000 a day.
California Public Utilities Commission is requested to be responsible for  investor-owned water utilities utilities, i.e. San Jose Water Company. Would also be subject to potential fines generated by CPUC?
Which raises the question of what role does the Santa Clara Valley Water District (SCVWD) occupy? Who can cite you for a water regulation violation? You apparently can report a violation to SCVWD or to SJWC, but what happens to the report? Since it doesn't appear SCVWD can write an actual citation (warning again avoids words that might appear politically sensitive) it appears all they can give anyone violating the water use standards is a warning and copy the information to your actual retail water supplier, for example San Jose Water Company.

San Jose Water Company can also according to Advise Letter #473 install a restrictor or discontinue your water service.
Each Stage includes a list of mandatory restrictions against non-essential or unauthorized uses of water that become effective once the Stage is implemented. SJWC can enforce these mandatory restrictions through the use of flow-restricting devices as follows: 1 On May 11th, 2015, SJWC filed advice letter 472 seeking authorization to revise Rule 14.1 effective June 15th, 2015. All references to Rule 14.1 are based the proposed revisions.  
Blogger, Drought Procedures PROCEDURES FOR WATER CONSERVATION, RATIONING AND SERVICE CONNECTION MORATORIA Standard Practice U-40-W, Appendix C Schedule 14.1 Example seem to have a written warning and a fine before the installation of a flow restrictor. Consistency statewide would be interesting "concept".
The charge for removal of a flow-restricting device is:
 Meter Size Removal Charge 

Reporting Violations

Obviously anyone can call either SCVWD or SJWC, or the folks that send you a bill for water.
We have several ways to report a violation of the drought rules. The next question is what happens to the information? Two organizations are collecting info in three different formats, are they planning to talk to each other? What happens if someone reports the same incident to the different organizations or two different persons report an incident to each organization? is that one warning or two?

Excerpt from, Drought Procedures PROCEDURES FOR WATER CONSERVATION, RATIONING AND SERVICE CONNECTION MORATORIA Standard Practice U-40-W, Appendix C Schedule 14.1 Example

1. When a stage of this schedule has been activated by Commission authorization, the water use restrictions of the conservation program in Section A of Rule 14.1 as well as those listed in Section D of this tariff, become mandatory. If a customer is seen violating the water usage restrictions, as outlined in Rule No. 14.1 and the Special Conditions below, the customer will be subject to the following fine structure:

First offense: Written warning
Second offense: $25 (of the same restriction)
Third offense: $50 (of the same restriction)
Each additional Offense: $25 more than the previous fine imposed. (of the same restriction)

2. Offenses for separate water use restrictions will each start at the warning stage.

3. Fines for exceeding the allotted volume ration will consist of a multiplier of X12 times the highest tiered rate in effect for all water used above the allotment.

4. The water use violation fine is in addition to the regular rate schedule charges
  12 The X represents a multiplier (i.e. 1.2, 1.3, 1.4 etc.)

We find ourselves with  many questions about:
  • Is there a liability issue, whose would it be, in restricting or terminating a customer's water flow, we are entering a serious fire season, as well as potential damages to water based appliances?
  • The enforcement, an appeal process, the length of time we have to contest a warning, our right to a hearing and confront your accuser, if service is restricted or termination of service?
    A recent case in Southern California concluded that traffic/vehicle fines did not have to be paid in advance of an appeal or hearing.
  • Will the utility employees receive any training? Which employees can write warnings or verify warning? Will their reports be available online, will there will be an appeal process?
  • Does an webform, telephone and email  from what may be an unhappy neighbor, the basis for a warning?
  • If there is a flow restrictor re-connect/removal fee is there any other charge?
  • What are the connect and disconnect charges if the water retailer takes that action? This effectively renders a house unlivable, what in the process protects the homeowner or renter? Is there a liability for the water supplier, if this action is taken?
  • Who will serve the "citation" in the event of a monetary fine? SJPD or an actual sworn officer? Can we expect someone, in a shirt with a logo, of our water company at our door trying to collect a fine? Will it simply be added to our bill?
  • What are the customer rights to have access to the information on which a violation is based? Who may actually report a violation and how will it be "certified", if it is not a report by someone other than a sworn officer would a witness be required in addition to the person reporting the violation?
  • Is there a central point (SCVWD, SJWC, a new entity, etc.) that's going to keep track and verify that there was a violation, provide an a ratepayer with details on any acquisition made of a violation concerning the potential violations in 14.1.
  • and last but not least, "Where do the fines go?" the State mandated daily $10,000 per day fine for non compliance and the local water company possible fines on customers, for violations, in addition to Drought Surcharges (actually usage based penalties)? Is there a requirement to publish monthly or quarterly a list warnings, restrictions and fines, in each county or city? Any drought surcharges paid to any water company will be used to adjust their revenues, to guarantee profits and to be applied to drought related expenses. I guess I'm skeptical about about any water company having much left to return to ratepayers, as a "surcredit" (that's a rare creature that if it appears is a very tiny opposite of a surcharge which is generally much larger, in my experience).

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