After a period of silence following the setback in the Measure I election on March 5, it appears that the opposition will go forward after all, as Michael Harrington has filed an amended complaint and says he intends to serve the city this week. We will find out if that is the case shortly enough.
Clearly, Mr. Harrington believes he is onto something here. The amended suit alleges that the city of Davis is owed a substantial sum of money by the county because of the successful 2008 Prop 218 challenge by El Macero.
Writes Mr. Harrington, “The City has been billing the County for the higher rates since 2008, and because of the successful 2008 Prop 218 challenge by EI Macero ratepayers, the County only receives the old, lower rate income from EI Macero.”
“The County has refused to make up the difference, and the City has a growing receivable on its books,” the suit alleges. “The difference is approximately $100,000 per year, and this City-County standoff means that the City has not been paid more than $500,000, still increasing.”
He adds, “The statute of limitations has probably expired on some of this debt. Since the City is not enforcing the debt, there is a growing shortfall in the wastewater rates enterprise account, and the Davis wastewater ratepayers are effectively subsidizing via the County the property owners in EI Macero.”
Then he adds the nefarious charge: “This has all (been) kept hidden and away from public hearings and the media.”
However, this charge is not enough, as this would simply be an accounting issue between the city and the county. The crux of his challenge is to negate the wastewater rate hikes along with the surface water rate hikes.
So, at the core he challenges the “current wastewater rates” which he claims “violate Proposition 218 and are unconstitutional and illegal in that, inter alia, they impose a fee or charge incidental to property ownership which exceeds the proportional cost of the services attributable to the parcel.”
The city does not have a mechanism to directly assess each individual’s impact on the sewer. So they have come up with a method, that many communities use, by basing sewer rates on winter water use, presuming that a higher percentage of that goes back into the sewer rather than into the ground through irrigation.
Mr. Harrington is arguing that this methodology is flawed and the rates established were “not rationally related to the amount of wastewater used by a particular property owner.”
The suit argues, “A substantial portion of the property owners use outdoor irrigation during the winter months, and the water thus used goes into the ground and is not returned to the system for wastewater treatment.”
Thus the plaintiffs contend, “The consumption of potable water during the winter months is not an appropriate basis to charge for treatment of wastewater that only flows from inside a home or commercial building.”
“The City has been well aware of this structural defect in its wastewater rate structure,” the suit charges. “Most recently, on or about December 2, 2012, the City received a Report from its consultants, Bartle Wells, concerning the wastewater rates being charged to residents of El Macero.”
In that report, the suit contends, “Bartle Wells made it clear to the City that it was inappropriate to charge El Macero residents for wastewater service based on the water usage during the winter months, and recommended that an adjustment be made for the residents of El Macero, making no adjustments for any of the residents of Davis.”
However, this is where the suit hits a snag.
The report from Bartle Wells indeed notes, “The higher water use by El Macero residents in the winter months is used for irrigation purposes, and therefore does not return to the collection system for treatment but either infiltrates into soil, runs off or evaporates.”
“The current billing methodology employed by the City is based on winter water use,” the report continues. “While generally a more accurate and just methodology for cost recovery from individual customers, this process has several extra unique billing steps as applied to the CSA and eliminates much of the accuracy and resolution of the winter water use method’s intent.”
The problem is that while this winter water usage method may not be suitable for El Macero, that is due more to unique features of El Macero than a true flaw in the methodology which has become an industry standard practice.
“The contention of the Bartle Wells study is that El Macero is unique and has a far higher amount of winter water usage than the typical Davis customer,” City Manager Steve Pinkerton said. “It does not question the validity of our rates for Davis customers.”
“The City does not directly bill El Macero customers,” the city manager said. “The City’s customer is Yolo County. It is the responsibility of Yolo County to conduct a Prop 218 hearing and adopt rates for El Macero customers.”
In the meantime, Bartle Wells argues that, in effect, the city of Davis is overcharging the county for the El Macero impact on the sewer system. The purpose of the Bartle Wells report was to figure out how to fix this problem.
After exploring three options, the report recommends charging the county for El Macero’s proportional share of sewer expenses based on population.
“(Population ratio) may be the best option for all parties involved. It is easy to calculate, simple to implement as a billing option and most efficiently recovers costs of service for a block user group, like the El Macero County Service Area,” the report finds.
This leaves Mr. Harrington with several problems here. First, he is attempting to argue the city is receiving too little money from the county but at the same time relying on a report that argues El Marcero residents are being overcharged for their sewer usage.
The second problem is that the unique features of the El Marcero water system mean that they are in a unique position in terms of their sewer usage versus winter water usage. Mr. Harrington tries to use this fact to impugn the entire wastewater Prop 218 model without making a showing as to how the city’s wastewater charges are disproportional or otherwise problematic.
So we are back to the same place we were with the original lawsuit. The city has acknowledged not tracking its water use, gallon for gallon, and therefore the possibility exists that the general fund will owe the enterprise fund for some of the city’s water usage. But that will have no impact on the surface water project.
We believe that the current Prop 218 and rate structure for CBFR is far more fair in its inception than the current rate structure or the Bartle Wells system and, therefore, it seems difficult to believe that the court would overturn the rates on disproportionality.
In the end, we believe this continues to be a lawsuit that will not change the fundamentals of either the surface or wastewater project.
—David M. Greenwald
When he serves the City this will be newsworthy. Until then it is just a publicity stunt, which unfortunately, you are more than happy to promote.
Promotion by disagreement is an odd concept.
The County and the City have been working on a resolution for the El Macero sewer rates for some months. It is a lead agenda item on the City/County 2X2 meetings once a month. Until it is resolved and they receive direction, there is no change in accounting. Again, Mike is out of touch and grasping at straws and the Vanguard just plays along. I wish you would wait until Mike actually serves the lawsuit to pick apart his suit. Show him where the flaws are and he’ll just amend it again..and again, with each time receiving coverage in the press.
[quote]Promotion by disagreement is an odd concept. [/quote]
Hey, that’s the Mike Harrington way.
David, what I mean by the “Mike Harrington way” is his troll-like behavior. State something outrageous or untrue, make a false allegation, file a lawsuit and contact the press (but don’t serve it) etc. Then have people respond in disagreement. The more upset people get, the more he feels success. He does this over and over. To him, this is “promotion.” Please don’t get drawn into his game.
“Promotion by disagreement is an odd concept. “
“The only thing worse than being talked about is not being talked about.”
Oscar Wilde
You’ve repeatedly given this clown and his cohorts an aura of legitimacy just by, unnecessarily, responding to their contrived accusations.
Ryan: I think there is value in analyzing the suit which is something I would have done whether it was Harrington’s or Jose Granda’s.
“You’ve repeatedly given this clown and his cohorts an aura of legitimacy just by, unnecessarily, responding to their contrived accusations. “
I fail to see how arguing that the lawsuit is frivolous, which is in essence what I did, gives anyone an aura of legitimacy. Sticking my head in the sand isn’t going to make it go away. Moreover, I don’t think shouting down or Mau-Mauing unpopular views is very effective.
Just wait until he actually serves the lawsuit. He says he’ll serve it this week. Just wait a few days, David.
WR Hearst set the standard… David should not be criticized for stirring up fecal matter to increase participation in discussion, as that creates more blog activity, which then can be used to set advertising rates to provide his income.
The “water wars” are over. One side just refuses to acknowledge that they lost the election.
[quote]The “water wars” are over.[/quote]Yeah, right. Kinda’ like the creation of Israel ended strife in the middle east.
[quote]”You’ve repeatedly given this clown and his cohorts an aura of legitimacy just by, unnecessarily, responding to their contrived accusations. ”
[/quote]
And here I thought name calling was forbidden on this site.
By golly, you’re right and I apologise . Clowns are part of a rich time honoured craft and Harrington is just a manipulative, opportunistic lawyer.
Ok, please stop now.
But yet the posts remain up.
If you have questions or concerns about how the Vanguard is moderated, you can contact me at donshor@gmail.com.
The Vanguard is doing its job. Bad news, good news, disagreeable news–complain about it all all you want. Just don’t complain about David offering it up to us.
And, isn’t it great fun to be among the first in town to read about Michael’s latest shenanigans? Come on, admit it.
Don, I understand where Growth Izzue is coming from. When the posts slide over into ad hominem, my vote is to remove them. biddlin’s comment, “You’ve repeatedly given this clown and his cohorts an aura of legitimacy just by, unnecessarily, responding to their contrived accusations” does not in any way address the issue at hand, but rather the people at hand.
Yes, but David quoted it in his reply. I generally don’t edit the blog owner.
David Greenwald said . . .
[i]”The problem is that while this winter water usage method may not be suitable for El Macero, that is due more to unique features of El Macero than a true flaw in the methodology which has become an industry standard practice. […] The second problem is that the unique features of the El Marcero water system mean that they are in a unique position in terms of their sewer usage versus winter water usage. “[/i]
What is it exactly that makes El Macero unique?
Don, perhaps David should delete his reply as well. I understand why he responded, but his response also doesn’t address the issue at hand, but rather the people at hand. Deleting both bidlin’s comment and David’s reply would bring the discussion back on topic.
Growth Izzue’s response would also be a candidte for deletion since its sole purpose was to quote biddlin’s off topic post.
JMHO
As the Queen of Hearts would say, “Off with their heads!!!”
I’m fine with my post being deleted, I felt the need to respond to it, but GI is correct.
[quote]responding to their contrived accusations. ” [/quote]
In response to GI. This part of biddlin’s comment I see as unobjectionable, and and accurate description of the strategy used by Mr. Harrington and his associates. So while I fully support taking down the “name calling” portion of the post, I think that the remainder is a valid, if not new, observation.
medwoman, since you put “in response to GI” you’re a little late to the game here aren’t you? That part of the quote had nothing to do with what was being discussed.
I resent the removal of my heartfelt apology and would be happy to repost it, but it would once again be excised by Don or worse, re-written by David . Suffice it to say that in my assertion of David’s facilitation of Harrington’s medicine show, I made a most unkind comparison of everyone’s faavourite circus performers with the plaintiff’s lawyer . When pointed out, I sincerely and promptly apologised . Just another unwarranted slur against a concerned neighbour.
Biddlin ;>)/
If I understand the concept here, El Macero uses more water for irrigation in the winter than the users in the city of Davis. I don’t see why that is the case. I do understand the golf course might use more water, but why wouldn’t El Macero residents shut off their systems like the rest of us do? What horticultural plantings are they irrigating in the winter that are unique to El Macero that require water in the winter that homes in Davis don’t require? Is there something technical here that I missed? I don’t see why El Macero should be billed differently for wasterwater and I haven’t read anything that explains this other than a reference to lot size.
I couldn’t have said it better myself dave. The irrigation needs during November, December, January and February in Davis are driven by the evapotranspiration calculations, which are the same throughout Davis.
November 2012 = 3.55 inches of precipitation and 2.47 inches of evaporation
December 2012 = 7.33 inches of precipitation and 2.18 inches of evaporation
Both months were net positives, and no irrigation was needed, especially December
January 2013 = 0.85 inches of precipitation and 1.81 inches of evaporation
February 2013 = 0.18 inches of precipitation and 3.73 inches of evaporation
Both months were seriously rain deficient. By February 1st plants all across Davis were showing serious stress and unless your plantings are xeriscape/drought tolerant, irrigation systems that had been turned off were turned back on again.
For better or for worse El Macero yards are heavy on turf, but even yards without turf (my wife and I don’t have a single blade of grass on our property) were needing to irrigate in February.
Irrigation vis-a-vis wastewater is really a binary situation (off/on). Lot size really has nothing to do with it . Any irrigation water consumed in the November-February period is not contributing to the accumulation of costs in the wastewater plant, so assigning cost to irrigation water use is by definition non-proportional.
Back in 2008 I came to Council to argue for per person/resident rates for wastewater. My arguments fell on deaf ears.
You barely needed to irrigate in February, if at all. There was plenty of stored moisture from the heavy rainfall in the previous months.
60 days with a total of 1 inch of rain? With all the sandy loam we have in our garden beds there really wasn’t much stored moisture at all.
Not true. You might have had to hand water a few things in beds that had artificial soil (which by the way is one of the reasons we recommend mixing your native soil with whatever fill you bring in). Nothing established in the landscape, and not even lawns in most cases, needed much water.
Where do you think all that rain water from November and December went? Mostly it was still there, stored in our nice clay loam soils, available to anything that got its roots deep enough.
Lets accept for the moment Don’s argument that anyone irrigating in the winter months did not need to do so, and that it was a discretionary decision that they should pay the costs of. His position is more than reasonable.
The problem comes when the City wants to recover the costs of irrigation water a second time when it only incurs cost for that irrigation water one time.
Water used inside the home does indeed cause the City to incur two sets of costs, the water system costs when it comes out of the tap or into the toilet, plus the sewer system costs when it flows through the drain system into the sewer pipes. Water used outside the home for irrigation only causes the City to incur one set of costs, the water system costs when it comes out of the hose bib or irrigation nozzle. No sewer system costs are incurred when irrigation water is consumed, because no irrigation water flows into the drain system or subsequently into the sewer pipes.
Add to that, The fact is that anyone who irrigates in the winter currently pays all the City’s costs of their discretionary water use decisions on their water bill. Each discretionary ccf appears on the water bill when the bill arrives and the dollars per ccf appear as well. Every City resident and every El Macero resident is billed that way, and then all those City residents and El Macero residents pay the billed water amount in full. The only difference is that the County pays the City for the aggregate El Macero amount. Bottom-line, the costs to the City for irrigation decisions are recovered under the water rate structure.
So the real questions are:
[i]”Why should a resident who irrigates in the winter be charged twice for costs that are incurred only once?”
“Why isn’t payment in full for those winter irrigation water costs on the water bill sufficient?”[/i]
Then translating those two questions into the “Stupid El Macero residents you don’t need to be irrigating” scenario that Don has laid out for us in his insightful and informed comments above, the simple question ends up being,
[i]”Is everyone in agreement that anyone who chooses to make the suboptimal decision to irrigate during the four winter months should pay [u]all[/u] the City’s costs incurred as a result of that decision?”[/i]
And the simple answer to that simple question is, [i]”We are in full agreement that everyone should . . . and in fact, everyone in El Macero has consistently done so each and every winter since 1970 right up through this current winter.”[/i]
Further, the County has paid the City for all the costs of the sewer services it has received each and every year since 1970. What it hasn’t paid for are the “phantom costs” associated with water that [u]never[/u] entered the wastewater treatment system.
I agree with Don, I’ve only used my sprinklers twice since last Oct. and my lawn and plants are doing great.
. . . and Growth Izzue, you will be paying for that irrigation water twice (in your water bill and your wastewater bill) even though it only meant cost for the City once (in the water system).
Matt, wouldn’t that apply to more accounts than just El Macero, such as home owner associations that have irrigation only for common areas. If El Macero is successful in adjusting their bill, would/could that be applied to these similar accounts within the City limits?
Ryan, is that a rhetorical question?
No. It is a true question. The discussion has always been about apartments or houses where there is internal water use plus potentially irrigation. But what about accounts that are pure irrigation? If the water is turned off during Winter months, how does that affect sewer rates for those accounts. Is there just a set price for these or do they just not pay for sewer? (It would make sense that they don’t pay for sewer, because the water should be going into the ground and not the sewer, which is what El Macero is arguing about a portion of their Winter water use…I think.)
The need for amount and frequency of irrigation is a function of:
Current evapotranspiration rate (ET)
Plant type (landscape coefficient)
Soil type, which determines infiltration rate and stored moisture. Denser soils retain water much longer.
Many woody plants get their roots deep enough to gradually reduce their need for supplemental irrigation. In other words, their landscape coefficients get lower with age. Some species, including many non-native types, can eventually get by solely on stored moisture.
The need for irrigation can be measured, assessed visually by plant condition, or by assessing the soil moisture.
Irrigation frequency can be adjusted by averaging plant water use seasonally or monthly, or by means of ‘smart meters’ that adjust according to actual ET or soil moisture conditions.
Depending on the factors above…
Stored soil moisture usually is sufficient for most plants until about March or April in years of normal rainfall. From about March through May, plants need about half of reference ET, adjusted for their landscape coefficients.
From June through September, they need the full ET, adjusted for their landscape coefficients.
By October you can usually drop back to half, and when we’ve had an inch of rain you can usually shut off your system.
Irrigation systems rarely need to run at all from November through March. Newly planted plants may need some hand watering. Plants in containers, under overhangs, or in container-like soil conditions such as raised planters may need supplemental watering by hand. Running your system for this is generally wasteful. Instead, spend a few minutes watering with a hose. You usually only need to water the top few inches in that situation.
Nearly everyone would benefit from being better informed about these factors, as much water is wasted in the landscape by inappropriate use of sprinkler systems.
[i]”Then translating those two questions into the “[b]Stupid[/b] El Macero residents you don’t need to be irrigating” scenario that Don has laid out for us…”[/i]
Please don’t ascribe adjectives to me that I neither stated nor implied.
Ryan… for ‘commercial’ uses, the irrigation water is metered separately, and does not get charged for sanitary sewer. Generally, separate irrigation line also has backflow prevention devices on them as well.
Many (probably even most) apartment complexes (commercial residential, if you will) have separately metered irrigation services. Water delivered thru these doesn’t show up in the sanitary sewer calcs for the apartment complex.
Thank you. So, what El Macero is asking for is unique to their situation. They are in the County, but are connected to the City of Davis for water and sewage and don’t like the way they are charged…since they have huge yards and water year round…which raises their sewer charges…because of how the City sets sewer costs…. I can actually understand concerns on both sides. … I’ll let others sort this out.