Special Districts

The El Dorado County Water Agency was created and operates pursuant to Chapter 2139 of the 1959 Statutes of California, as amended, known as the El Dorado County Water Agency Act ("Act"). The Agency's governing authority appears at Chapter 96 of the Appendix to the California Water Code. All further section references in these findings are to provisions contained in the Appendices to the Water Code.

The Agency was created because the California Legislature found, in 1959, that "water problems in the county require county-wide water conservation, flood control and development of water resources," and that the then existing "county water districts, municipalities, and water conservation districts" were "unable alone to economically develop an adequate water supply and control the floods of the county." The Legislature further found that it was "necessary to have a political entity coextensive with the geographical limits of the entire county," that conditions within the County were "peculiar to it," and that the Act was "necessary for the conservation, development, control and use of said water for the public good and for the protection of life and property" within the County. (Section 96-103.)

The territorial jurisdiction of the Agency consists of "all the territory lying within the exterior boundaries of the County of El Dorado." (Section 96-2.)

The Agency has the authority to acquire real and personal property, both by exercise of the power of eminent domain and by grant, purchase, gift, devise and lease. (Sections 96-8 and 96-9.) The Agency has exercised this power only sparingly, and in those instances in which it has exercised the power, it has subsequently transferred ownership of the property thus acquired to water purveyors within the County rather than retaining it.

The Agency has the power, except as otherwise expressly limited by the Act, "to do any and every lawful act necessary in order that sufficient water may be available for any present or future beneficial use or uses of the lands or inhabitants" within the Agency's territory, "including, but not limited to, irrigation, domestic, fire protection, municipal, commercial, industrial, recreational, and all other beneficial uses and purposes." (Section 96-11.) The Agency has not exercised this power aggressively.

The Agency presently has the following statutory powers, among others: "[T]o construct, operate and maintain works to develop hydroelectric energy as a a. means of assisting in financing the construction, operation and maintenance of its projects for the control, conservation, diversion and transmission of water," and "to enter into contracts for the sale of such energy ... at wholesale rates to any public agency or private entity engaged in the sale or use of electric energy." (Section 96-12.) "Incidental to the construction and operation of the works of the agency, the agency shall have the power to contract for the sale of the right to use falling water for power purposes with any public or private entity." (Section 96-22.); b. "[T]o control the flood and storm waters of the agency" and "to conserve such waters for beneficial and useful purposes" (Section 96-13.); "[T]o store water in surface or underground reservoirs;" "to conserve and reclaim c. water;" "to appropriate and acquire water and water rights, and import water into the Agency;" to engage in any "action or proceeding involving or affecting the ownership or use of waters and water rights" in which the Agency has an interest; "to prevent interference with or diminution of, or to declare, rights in the natural flow of any stream or surface or subterranean supply of waters;" "to prevent unlawful exportation of water;" and "to prevent contamination [and] pollution" of waters (Section 96-14.); d. "[T]o construct, purchase, lease, or otherwise acquire works and ... water and water rights, useful or necessary to make use of water for any purposes authorized" by the Act (Section 96-15), including but not limited to "pipes, pipelines, flumes, [and] tunnels and other conduits, including facilities for the transmission of electric energy to the works of the agency" (Section 96-18.); "[T]o operate, repair, improve, maintain, renew, replace and extend all works e. and property of the agency" (Section 96-16.); f. To "enter into contracts with any member unit" of the Agency as defined in the Act (Section 96-24.); "[T]o cooperate and contract with the United States ... for the purposes of g. construction of works, ... or for the acquisition, purchase, extension, operation and maintenance of such works, whether for irrigation, drainage, or flood control, ... or for a water supply for any purposes" (Section 96-30.); and h. To hold legal title to property (Section 96-42.).

The Agency has failed, either totally or at least substantially, to exercise the powers set forth in subsections "a" through "e" of the preceding Finding. It has, instead, deferred to water purveyors within the County for primary activity in those areas.

The Agency has the duty, among others, "to equitably apportion the benefits of the agency to the lands within the [various] zones" located within the Agency. (Section 96- 46(a).). The Agency has delegated the majority portion of that authority to EID. EID, however, may in the future have significant potential disputes with the Georgetown- Divide Public Utilities District concerning the diversion and allocation of water from the South Fork of the American River at Folsom Lake. Those potential disputes may ultimately result in a conflict of interest on the part of EID, between its inter-district water allocation role and its role as a water supplier to its own customers.

At the present time, the Board of Supervisors of the County ("BOS") is, ex officio, the Board of Directors of the Agency ("Board"). Each member of the BOS serves as a member of the Board without additional compensation, except for expense reimbursement. (Section 96-33.) This Board composition is counter-productive to the long-term interests of water and power development within the County, because the normal planning focus of BOS members is relatively short-term and is diluted by competing planning interests unrelated to the development of water and power, whereas the appropriate and required planning focus of Agency Board members must necessarily be long-term in nature, i.e., 20 to 40 years or more in the future.

By contrast, and by way of example, the composition of the Board of Directors of the Placer County Water Agency, which is authorized in Section 81-7 et seq. of the Appendix to the California Water Code, is significantly more flexible, in that the original directors, members of the Board of Supervisors ex officio, have been replaced by directors who are elected from the five supervisorial districts within Placer County. (See Section 81-7.1.) The Placer County Water Agency has the reputation of being an efficiently organized, managed and operating entity. Other water and/or power suppliers which have similar reputations for efficiency include the Turlock Irrigation District, the Modesto Irrigation District, the Nevada Irrigation District, the Northern California Power Agency, the M-S-R Power Authority, and the Sacramento Municipal Utility District.

Senator Rico Oller has introduced proposed legislation, SB 428, which would amend Section 96-33. In its form as of April 11, 2001, SB 428 would revise the composition of the Board of Directors of the Agency by providing for a five-member Board, three of whom would be members of the Board of Supervisors, with specific consideration being given to the Supervisor representing a district that includes the largest area in the county not served by a water district. The other two Agency directors would be appointed by the water districts within the County, with one director being from either the South Lake Tahoe Public Utility District or the Tahoe City Public Utility District, and the other being from either EID, the Grizzly Flats Community Services District or the Georgetown Divide Public Utility District. EID, however, would have a representative filling this position on at least an every other term basis. The BOS has adopted a resolution supporting this proposed legislation.

The Grand Jury agrees in concept, and without taking a specific position on the details of Senator Oller's proposed legislation, with the principles that water purveyors, and unaffiliated members of the public to the extent reasonably possible, within the County should be represented on the Agency's Board of Directors.

The Agency does not presently have a current county-wide water plan. A draft plan was prepared in 1993, but that plan was never completed. Projections of demand have significantly changed since 1993. At the Agency's request, the BOS has authorized a request for proposals for the preparation of an updated county water plan, showing options for actions to meet projected demand through 2020, and projections of those estimates to 2050, but also requiring identification and consideration of environmental concerns along with economic and technical issues. The Grand Jury supports the preparation, and ultimate adoption, of such a Plan. Such a Plan need not necessarily envision any particular degree or extent of population growth within the County, if increases in water and/or power usage can reasonably be anticipated to occur for reasons other than growth.

The Court of Appeal, Third Appellate District, State of California, in County of Amador v. El Dorado County Water Agency, 76 Cal. App. 4th 931, has held that the adoption of environmental documents pertaining to specific water development plans are impermissible unless and until a countywide general plan has been adopted. Accordingly, the absence of a formally adopted countywide general plan inhibits action on any county water plan, which may be appropriate for the benefit of the residents of the County. In the interim, water resources to which El Dorado County has, or may have, potential development rights may be lost to potential water users downstream from the County, or in the San Joaquin Valley, in Southern California, and elsewhere. For that reason, among others, it is necessary that a countywide general plan be adopted and put into place at the earliest possible opportunity.

The County's present water difficulties have resulted from a history of the BOS, sitting as the Agency's Board of Directors, having played politics with the issue, sacrificing water development needs to other, more immediate and politically beneficial, purposes. Plans for water development and power generation have been created and then, for various reasons, have failed to be implemented. As a result, significant opportunities for such development and generation have been lost and, with changing conditions, cannot now be reclaimed. Action is necessary at this time to ensure that similar opportunities, which may presently exist, are not lost by reason of inertia, conflict or other causes of delay. ٠.٠

In summary, the Grand Jury has concluded that the El Dorado County Water Agency, which has existing statutory authority to play a major role in the acquisition and development of water and power resources within the County, has not been exercising that authority to its maximum efficiency, but instead has been delegating that authority to individual water purveyors whose interests may (or may not) conflict.