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A call for MMWD to declare a moratorium on the issuance of new water taps

The following letter has been sent to the Board of Directors of the Marin Municipal Water District, requesting that they immediately declare a moratorium on the issuance of new water taps due to Marin's historic drought conditions and equally historic low levels of our reservoirs.

Dear MMWD board members,

MMWD has now declared a water emergency and existing customers are now subjected to restricted water use, enforced by significant financial penalties for violations. As a result, existing MMWD customers find themselves facing the dire consequences of this historic drought due to MMWD’s inability to provide its normal level of service. Having an adequate water supply for existing users has been an ongoing concern for customers in Marin for decades, even as rates continue to rise dramatically every year. Yet, we have seen very little planning or capacity/storage increases by MMWD, over the past decade, in anticipation of climate change induced droughts.

Putting aside, for a moment, MMWD’s failure to adequately plan for current conditions like other municipalities (e.g., Los Angeles County plans no water restrictions this year because they built adequate storage capacity, in advance), under the present circumstances, it makes no sense for MMWD to continue to grant requests for new water taps.

Therefore, we are writing on behalf of MMWD customers and members of the community to request that MMWD immediately declare a moratorium on all new water taps and that criteria for a moratorium declaration be established to be automatic, in the future, when predefined facts and circumstances exist, as they do today. Under the present circumstances, it is simply inequitable to continue to issue new water taps, which will increase the already significant burdens on existing MMWD customers.

The question before the MMWD Board then is can MMWD declare a moratorium on the issuance of new water taps? The answer to that question is, unequivocally, yes, based on case law that directly involves past decisions by MMWD.

In their summary of the case of Swanson v. Marin Municipal Water District (1976) 56 Cal.App.3d 512,Sean M. Sherlock and Katherine McKitterick at Snell & Wilmer wrote,

“In Swanson v. Marin Municipal Water District (1976) 56 Cal.App.3d 512,The court of appeal held that “a potential water user does not possess any absolute right to be afforded water service and . . .the Constitution does not require that he be treated in the same manner as established users of the water system.” Id. at 522. [Emphasis added]

“Accordingly, when water districts do not have enough supply to satisfy demand they may declare water shortage emergency conditions and issue moratoria on new service connections. [Emphasis added]

In Swanson v MMWD, the Court noted that the basis of the need for a moratorium on new taps must be “rationale,” meaning based on actual data and/or events. A declaration of a water emergency, the implementation of water rationing with financial penalties for violations, and/or data-driven criteria such as the percentage of water storage available in agency reservoirs would all qualify.

The Court qualified its opinion by saying that agencies could not declare moratoriums with the primary intention of limiting growth. On this matter, the Appeal Court opinion stated,

“. . [W]e are not unmindful of the somewhat dire consequences which flow from our decision in this matter. Politically, the power to ‘cut off one’s water’ by the simple expedient of imposing a moratorium such as the one here involved is a potent weapon in effecting a no-growth policy within a community.”

But, that is not the issue before MMWD, today. Sherlock and McKitterick go on to say,

“When a water district has declared the existence of a water shortage emergency condition, it must adopt regulations and restrictions “as will, in the sound discretion of such governing body, conserve the water supply for the greatest public benefit with particular regard to domestic use, sanitation, and fire protection.” Id. at 1647 (citing Wat. Code, §353)(emphasis added). Water Code section 356 explicitly authorizes a ban on new service connections. Id. at 1647. [Emphasis added]

And that

“The net result of this Appeal Court opinion is that water districts have broad discretion to implement measures to conserve water supply for the greatest public benefit and to decide what is in the best interest of the population it serves. Id. at 1646-1649.” [Emphasis added]

In reviewing the case law on this subject, CVP’s legal counsel added,

“MMWD could [at this time] enact a moratorium per Water Code sec. 350 and create a factual record sufficiently strong to withstand any claim from builders that it was a mere pretext for a no-growth policy. One obvious way to do this would be to have the moratorium measures lapse whenever a certain supply benchmark was reached, [or] after the drought emergency ends.”

In summary, MMWD has the full authority to declare a moratorium on new water taps at this time, particularly because it has stated that water storage is currently at historically low levels and it has officially declared a water emergency and instituted water use restrictions on existing users, with significant financial penalties for violations.

As such, we respectfully request that MMWD take immediate action and declare a moratorium on the issuance of new water taps, other than those related to public safety and fire protection, per Water Code Sec. 350.

Thank you in advance for your careful consideration of this matter.

Best regards,

Bob Silvestri, President

Bob Silvestri is the Editor in Chief of the Marin Post, a Marin County resident, and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded by individuals and nonprofit donors. Please consider DONATING TO CVP to enable us to continue to work on behalf of California residents.