RECENT CALIFORNIA DECISIONS

October 2004

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Water Agency’s Rates and Charges Are Not Subject to Proposition 218 Voter Approval or Initiative Process
Bighorn-Desert View Water Agency v. Beringson

On July 20, 2004, the Fourth District Court of Appeal held that the Proposition 218 voter approval and initiative process do not apply to rates and charges established by a water agency for water services that are not incident to or directly related to property ownership. The real party in interest, E. W. Kelley, had sought qualified an initiative petition to reduce by half the water rates and charges set by the Bighorn-Desert View Water Agency. Bighorn filed a declaratory relief action against the registrar of voters (Sharon Beringson) and Kelley seeking a judicial declaration that the Kelley initiative was invalid. The court agreed with Bighorn that its water rates are not subject to the Proposition 218 voter approval and initiative process. In reaching its decision, the court considered the implications of subjecting water service fees to initiative as “public water service might cease because Bighorn could not afford to supply it.”