High court affirms legality of state water fees

The California Supreme Court on Monday ruled that water fees set by two members of a state water board are legal, affirming a 2015 appellate decision.

The unanimous opinion, written by Justice Carol A. Corrigan, holds that a fee schedule adopted by the State Water Resources Control Board in 2011 was proper and did not violate state statutes nor the state Constitution. It affirms a unanimous decision by the 1st District Court of Appeal.

Representing the California Building Industry Association, David P. Lanferman of Rutan & Tucker LLP in Palo Alto argued the board violated section 183 of the state water code, which states "any final action of the board shall be taken by a majority of all the members of the board." The board typically has five members, but two seats weren't filled when the fees were approved.

A third member abstained from voting.

Lanferman said at least three members were required to approve the fees, but Monday's ruling said that requirement "only applies when the board has authorized a single member to conduct a hearing or investigation under section 183."

The ruling also noted that section 181 requires a quorum of at least three members, which the board had when it approved the fees.

"This conclusion is rooted in the language and structure of section 183 when read in the context of section 181 and other provisions of the water code," Corrigan wrote in the 27-page opinion.

Lanferman said Monday he's disappointed but appreciates the court's thoughtful approach. He said the decision appears to leave unanswered questions "about how much flexibility there is in allocating the cost of regulatory programs between different fee payers."

Deputy Attorney General Robert E. Asperger in Sacramento represented the state water board. California Building Industry Association v. State Water Resources Control Board, 2018 DJDAR 4154.

Monday's opinion noted that the 1st District Court of Appeal split on the issue and that the dissent, written by Justice James A. Richman, relied "primarily on an item of legislative history from a 1969 bill that amended section 183."

"The dissent concluded that the letter and the report were 'virtually conclusive proof' that section 183 was intended to override the general rule and section 181 when the board takes any final action, including the adoption of a fee schedule. The dissent concluded in error," according to Monday's ruling.

The ruling said the Building Industry Association and Richman's dissent relied heavily on a 1969 letter from then-state Sen. Gordon Cologne regarding the law. Corrigan, however, wrote, "We do not consider the motives or understandings of individual legislators who voted for a statute when attempting to construe it."

"This is true even when the legislator who authored the bill purports to offer an opinion," the justice wrote, adding that a bill's supporters don't necessarily share the views of its author.

"A contrary rule would allow an individual legislator to characterize an enactment in ways he or she might have preferred or intended but for which there was not sufficient legislative support," Corrigan wrote. "Any conclusion that the Cologne letter was virtually conclusive proof of legislative intent ignores this long-standing principle."