                   TO BE PUBLISHED IN THE OFFICIAL REPORTS

                        OFFICE OF THE ATTORNEY GENERAL
                                  State of California

                                      BILL LOCKYER
                                      Attorney General



                                               :
                  OPINION                      :                  No. 98-1012
                                               :
                      of                       :                March 10, 1999
                                               :
              BILL LOCKYER                     :
              Attorney General                 :
                                               :
        ANTHONY M. SUMMERS                     :
         Deputy Attorney General               :
                                               :



          THE HONORABLE JIM COSTA, MEMBER OF THE CALIFORNIA STATE
SENATE, has requested an opinion on the following question:

               May an irrigation district that charges for water on a per-acre basis regardless
of usage, the amount of which was established prior to November 6, 1996, adopt a surcharge
based upon the amount of water used, without complying with the notification and hearing
procedures specified in section 6 of article XIII D of the Constitution?


                                       CONCLUSION

             An irrigation district that charges for water on a per-acre basis regardless of
usage, the amount of which was established prior to November 6, 1996, may not adopt a
surcharge based upon the amount of water used, without complying with the notification and
and hearing procedures specified in section 6 of article XIII D of the Constitution.



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                                         ANALYSIS

               The Alta Irrigation District (“District”) is an agency governed by the Irrigation
District Law (Wat. Code, §§ 20500-29978). The District makes irrigation water available
to landowners through a system of canals. The District has levied a per-acre charge that is
collected whether or not a particular landowner uses any water. The annual fee is at the
same rate that was in effect prior to November 6, 1996. Besides continuing the per-acre
charge, the District is proposing to add a surcharge based upon the amount of water actually
used by each landowner. We are asked to determine whether the District must comply with
the notification and hearing procedures established in section 6 of article XIII D of the
Constitution when it adds the surcharge. We conclude that it must.

               Article XIII D of the Constitution was adopted at the general election of
November 5, 1996, as part of an initiative measure known as Proposition 218. Section 6 of
article XIII D provides:

               “Property-Related Fees and Charges. (a) Procedures for New or
       Increased Fees and Charges. An agency shall follow the procedures pursuant
       to this section in imposing or increasing any fee or charge as defined pursuant
       to this article, including, but not limited to, the following:

               “(1) The parcels upon which a fee or charge is proposed for imposition
       shall be identified. The amount of the fee or charge proposed to be imposed
       upon each parcel shall be calculated. The agency shall provide written notice
       by mail of the proposed fee or charge to the record owner of each identified
       parcel upon which the fee or charge is proposed for imposition, the amount of
       the fee or charge proposed to be imposed upon each, the basis upon which the
       amount of the proposed fee or charge was calculated, the reason for the fee or
       charge, together with the date, time, and location of a public hearing on the
       proposed fee or charge.

               “(2) The agency shall conduct a public hearing upon the proposed fee
       or charge not less than 45 days after mailing the notice of the proposed fee or
       charge to the record owners of each identified parcel upon which the fee or
       charge is proposed for imposition. At the public hearing, the agency shall
       consider all protests against the proposed fee or charge. If written protests
       against the proposed fee or charge are presented by a majority of owners of the
       identified parcels, the agency shall not impose the fee or charge.

              “(b) Requirements for Existing, New or Increased Fees and Charges.
       A fee or charge shall not be extended, imposed, or increased by any agency

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       unless it meets all of the following requirements:

              “(1) Revenues derived from the fee or charge shall not exceed the funds
       required to provide the property-related service.

             “(2) Revenues derived from the fee or charge shall not be used for any
       purpose other than that for which the fee or charge was imposed.

               “(3) The amount of a fee or charge imposed upon any parcel or person
       as an incident of property ownership shall not exceed the proportional cost of
       the service attributable to the parcel.

               “(4) No fee or charge may be imposed for a service unless that service
       is actually used by, or immediately available to, the owner of the property in
       question. Fees or charges based on potential or future use of a service are not
       permitted. Standby charges, whether characterized as charges or assessments,
       shall be classified as assessments and shall not be imposed without compliance
       with Section 4.

              “. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
       ..

               “(c) Voter Approval for New or Increased Fees and Charges. Except
       for fees or charges for sewer, water, and refuse collection services, no
       property-related fee or charge shall be imposed or increased unless and until
       that fee or charge is submitted and approved by a majority vote of the property
       owners of the property subject to the fee or charge or, at the option of the
       agency, by a two-thirds vote of the electorate residing in the affected area.
       The election shall be conducted not less than 45 days after the public hearing.
       An agency may adopt procedures similar to those for increases in assessments
       in the conduct of elections under this subdivision.

              “(d) Beginning July 1, 1997, all fees or charges shall comply with this
       section.”

For purposes of this constitutional provision, a “fee” or “charge” is “any levy other than an
ad valorem tax, a special tax, or an assessment, imposed by an agency upon a parcel or upon
a person as an incident of property ownership, including a user fee or charge for a property
related service.” (Cal. Const., art. XIII D, § 2, subd. (e).) A “property related service” is “a
public service having a direct relationship to property ownership.” (Cal. Const., art. XIII D,
§ 2, subd. (h).)

                                                            3                                                         98-1012
              In 80 Ops.Cal.Atty.Gen. 183 (1997), we considered whether a charge for water
based solely upon the amount used and not as an incident of property ownership was subject
to the requirements of article XIII D; we concluded that it was not. Landowners were not
required to be connected to the system, and non-landowners could purchase the water. In
reaching our conclusion that the charges in question were not governed by article XIII D,
we observed:

               “. . . A water charge that is based upon the ownership of land and
       calculated based upon the amount of land involved must be said to have a
       ‘direct relationship to property ownership.’ Water Code section 71630, for
       example, permits a municipal water district to fix a ‘water standby assessment
       or availability charge’ whether the water is actually used or not (see Cal.
       Const., art XIII D, § 6, subd. (4)), and such fees are calculated based upon
       acreage owned. (Wat. Code, § 71631.)

               “On the other hand, a water charge that is imposed whether the
       purchaser is a landowner or not, such as upon construction companies for
       filling their water tank trucks (see Wat. Code, § 71610), would not have a
       ‘direct relationship to property ownership.’ ” (Id., at p. 185.)

               It is apparent here that the District’s per-acre charge for delivering irrigation
water to landowners is a fee for a property-related service. The water is used in connection
with real property, it is assessed only upon landowners, and even those landowners who do
not choose to use the District’s water receive some benefit from the irrigation system since
the water in the canals assists in recharging groundwater supplies and maintaining the water
table. The District’s existing levy is thus a fee for a property-related service and is imposed
as an incident of property ownership.

                May the District impose a surcharge, measured by the amount of water usage,
without complying with article XIII D of the Constitution? The surcharge will change
neither the persons liable for the principal charge nor the purpose of the water delivery
system. Even though the amount of the surcharge will be determined by the amount of water
used, it will still be a fee for a property-related service and fall only on those subject to the
per-acre charge as an incident of property ownership. The proposed surcharge will thus
constitute a new property-related levy imposed solely upon landowners.

              We note, however, that article XIII D, section (6) of the Constitution
establishes various exemptions from the constitutional requirements for certain new fees and
charges. With respect to the requirement of voter approval (Cal. Const., art. XIII D, § 6,
subd. (c)), an exemption is provided for “fees or charges for sewer, water, and refuse
collection services.” For purposes of this exemption, the Legislature has defined the term

                                               4                                        98-1012
“water” as follows: “‘Water’means any system of public improvements intended to provide
for the production, storage, supply, treatment or distribution of water.” (Gov. Code, §
53750, subd. (m).) A system of canals supplying irrigation water falls within this definition;
it may be contrasted with the function of a storm drainage system, which removes excess
water from property and does not qualify for the exemption from the voter approval
requirement. (See 81 Ops.Cal.Atty.Gen. 104 (1998).)

                In answer to the question presented, therefore, we conclude that an irrigation
district that charges for water on a per-acre basis regardless of usage, the amount of which
was established prior to November 6, 1996, may not adopt a surcharge based upon the
amount of water used, without complying with the notification and hearing procedures
specified in section 6 of article XIII D of the Constitution.

                                          *****




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