With the hot summer months quickly approaching, many
in San Antonio are bracing for what has become almost as much of a rite of
summer as a Spurs Playoff run – mandatory water restrictions. While not quite as depressing as seeing
a veteran opponent drain that miracle shot to end our season, watching thirsty landscapes
wither under the Texas sun is pretty grim. But, we are San Antonians not alone.
Scarcity of water has become a global issue that
frequently makes headlines. Crises created by water shortages impact nearly
every aspect of human life in the developed world: the 2016 Olympic games in Rio de Janeiro, daily life in Sao
Paulo, American Heartland crop yields, Taiwanese
factories, development within the San Antonio-Austin corridor, and the very existence
of Medina Lake are all facing serious and immediate threats posed by water
scarcity. There are innumerable
other examples, not to mention water-related poverty and illness in the
“developing world.”
One very effective tool employed by water providers in
combating such shortages is the promotion of conservation. In essence,
conservation – by reducing or eliminating waste - increases water availability
without physically supplementing supply. That is, conservation encourages the
“highest and best use” of water by stimulating responsible consumption and
discouraging excessive, inefficient and/or irresponsible use.
Conservation programs have many components, including
education, management practices, auditing and reporting, etc. But, an
unfortunate reality is that many consumers (of all things and not just water)
take notice only when you “hit ‘em in the pocketbook.” Thus, tiered
“conservation rates” where customers who consume larger quantities of water are
charged higher per-unit costs than those with less consumption are typical
components of water conservation plans across the country, including in Texas.
One California lawsuit threatens to upend this
practice, and the trial court has struck a significant blow to water utilities’
ability to use financial policies to reduce consumption and promote
conservation.
In August 2012, an association of taxpayers and residents filed suit against the City of San Juan Capistrano, California
seeking to prohibit that City from charging water rates that exceeded the City’s
actual costs of providing water to its customers. In particular, the Plaintiffs
sought (among other relief) to set-aside a tiered water rate structure that the
City had employed since 1991 in an effort to promote conservation.
The Orange County Superior Court ruled against theCity, and ordered it to abandon
its rate structure and base all water rates on the cost of providing service. The City has appealed, and the
appellate court’s ruling is due any day now. If the trial court’s opinion is upheld, the ability of
California water utilities to promote conservation through the prices they
charge will be significantly impacted.
Notably, the California case turns on interpretation
of a state-specific proposition. However, the decision in that suit could
create a nationwide ripple effect as water utility customers and their lawyers
evaluate legal vulnerabilities of other conservation plans where pricing is
used to advance conservation.
