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February 20, 2007
Court declares one water fee unconstitutional, appeal expected
SUSANVILLE, California (STPNS) -- Before Lassen County farmers get a refund of a state water rights fee declared unconstitutional by an appeals court, more court action is expected.
The state has filed a petition for rehearing with the Third District Court of Appeal, in Sacramento, asking the court to take another look at an opinion filed on Jan. 17, according to Dave Kranz, of the California Farm Bureau Federation.
Four years ago, CFBF challenged ?imposition of new annual fees on holders of water right permits and licenses under Water Code section 1525,? calling the fees ?unlawful taxes adopted in violation of article XIIIA of the California Constitution,? according to California?s Court of Appeal, Third Appellate District case number C050289.
CFBF also challenged fees paid for water from the United States Bureau of Reclamation pursuant to Water Code sections 1540 and 1560. The water code set up the fees to pay the costs of regulating the diversion and use of water in the state. Section 1525 covers the costs of reviewing applications, administration and enforcing compliance with permits, licenses, registrations, and change orders, water leases, inspection, monitoring, planning, modeling and reviewing documents prepared for the purpose of regulating the diversion and use of water.
The appeals court may deny the petition for rehearing, or accept it and issue another opinion. Acceptance is considered a long shot and the state is likely to take the case to the California Supreme Court if the rehearing is denied, Kranz said.
The Legislature passed Senate Bill 1049 in 2003, according to a CFBF news release, and ?directed the board to recover the full costs of its Water Rights Division from Jan. 1 to June 30, 2004, and each year thereafter. SB 1049 passed with a simple majority vote of the Legislature.
?Rather than establish fees for actual services provided by its Water Rights Division, the SWRCB instead imposed a 3 cents per-acre-foot fee, with a $100 minimum, on all water rights permits and licenses, regardless of whether the SWRCB provides any service to the water rights holders. The fees have been imposed annually on the amount of water authorized to be diverted under a permit or license, whether the water is actually used or not,? the press release said.
The case does not affect the 400 percent increase in state water master fees announced to take affect in 2004. Fees to those who receive water from streams in Lassen County ran $120,000 before the increase, not counting the cost of the water.
Water masters make sure each user with a right to stream water gets his fair share
The Department of Water Resources budget estimate for 2005-06 stated the water master fees probably would rise to $418,000, according to University of California Cooperative Extension Farm Advisor David Lile. That did not happen because wording in the 2005-06 state budget outlawed the increases for one year.
Lile then led an effort to establish a local water master service in Lassen County, bypassing the state and its fees.
According to Hannah Tangeman Cheney the effort to hire a local water master continues. She attended a local water master meeting in January.
?A lot of people were probably paying both fees, I know I am,? she said.
State Senate Bill 1107, signed into law in August 2002, by Governor Arnold Schwarzenegger, called for users to pay the total cost of the service through the water master fee, which shows up in property tax bills of water rights holders.
In the past, the law called for the state's Department of Water Resources to pick up half the tab for the water master program, initiated in 1924 to avoid water rights disputes. The water users were supposed to pay the other half in a cost-sharing agreement. However, DWR actually drew money from other funds so water users were actually paying only 25 percent.
The legislation calling for the users to pay the entire cost produced the roughly 500 percent increase, Egan said. The savings to the state general fund were estimated at $713,000.
Eight water masters work full time in the Northern District, which serves eight counties. Each water master regulates from 100 to 200 diversions from streams and rivers within one or more service areas during the irrigation season.
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