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General Counsel
General Counsel
Marcia Scully

The Legal Department represents Metropolitan, its directors, officers and, on occasion, employees in litigation and administrative proceedings. It renders legal advice; prepares or reviews contracts; and monitors legislation, administrative proceedings, and state and federal legislative and regulatory proposals that could affect Metropolitan. The Legal Department reports directly to the Board of Directors.

One of the major functions of the Legal Department is to represent and defend Metropolitan in litigation related to water supply, water quality, energy, capital projects, operations, workforce and real estate matters. The Legal Department also responds to Public Records Act requests. An overview of activities undertaken by the Legal Department can be found in the most recent Annual Report.


Specific information on some of the current legal actions being undertaken by Metropolitan as well as other cases involving Metropolitan and decisions of interest to the district follow:​

 
 
 

From 2010 to 2014, the San Diego County Water Authority  has filed three lawsuits against the Metropolitan Water District of Southern California over water rates approved by Metropolitan’s Board of Directors.

On November 18, 2015, the trial court issued its judgment and a peremptory writ of mandate in the first two lawsuits.  Metropolitan and SDCWA each filed notices of appeal as to parts of the case adverse to each.  Appellate oral argument on the parties' appeals took place on May 10, 2017. The Court of Appeal issued its decision on June 21, 2017.  The third lawsuit, which mirrors the first two, has been stayed.

Significantly, the Court of Appeal held the inclusion of Metropolitan’s system-wide transportation costs, including transportation charges paid to the State Water Project, in the calculation of its wheeling rate does not, as the trial court held, violate the wheeling statutes, Proposition 26 (Cal. Const., art. XIIIC, § 1, subd (e)), Government Code section 54999.7, subdivision (a), the common law, or the terms of the parties’ exchange agreement.

General Manager Jeffrey Kightlinger issued the following statement:

"This ruling by the three-justice panel of the California Court of Appeal scores a major legal and financial victory not only for Metropolitan, but for the district's cooperative of member public agencies as well as the millions of consumers they serve. We are gratified that the court sided with Metropolitan on the central issue in this case, finding "the California Aqueduct unquestionably is an integral part of the system by which Metropolitan transports water to its member agencies" and it is lawful for Metropolitan to recover its State Water Project conveyance costs in its wheeling rate and the transportation rates charged under its exchange agreement with San Diego County Water Authority.

"The Water Authority's years-long effort to shift costs relating to their own water supply onto ratepayers elsewhere in Southern California has failed. We are equally pleased the court upheld Metropolitan's full service rate—which represents the vast majority of Metropolitan's revenues—including our ability to fund projects advancing conservation and local resource development through that rate.

"In the end, years of litigation brought by the Water Authority and tens of millions of dollars in related costs borne by ratepayers have fundamentally changed no major aspect of Southern California water management or financing. While Metropolitan has prevailed as to the overwhelming majority of costs under challenge in this litigation, nobody is a winner when water districts decide to fight in court rather than resolve their differences in a democratic and collaborative fashion."  

Background















Metropolitan obtained the dismissal of four claims in SDCWA’s 2010 case before trial (breach of fiduciary duty, breach of the covenant of good faith and fair dealing, a challenge to a Rate Structure Integrity provision in contracts, and a claim that Metropolitan’s rates violate Proposition 26).

In December 2013, the final hearing/trial on SDCWA’s rate claims in the 2010 and 2012 cases took place. In April 2014, the trial court issued its decision, ruling in SDCWA’s favor on two claims and in Metropolitan’s favor on one claim. The court found there was not sufficient evidence to support allocation of 100% of State Water Project transportation costs and the Water Stewardship Rate to Metropolitan’s transportation rates rather than its supply rate; and rejected SDCWA's claim that Metropolitan's rates do not properly account for "dry-year peaking" costs.

In April and May 2015, the trial on SDCWA's claims for breach of contract to exchange water and miscalculation of preferential rights to purchase water in the 2010 and 2012 cases took place. In August 2015, the trial court issued its decision, ruling in SDCWA's favor on both claims. The court awarded SDCWA contract damages of $188,295,602 and prejudgment interest of $46,637,180.

The Court’s November 18, 2015 judgment and peremptory writ of mandate contain its final rulings in the 2010 and 2012 cases. On November 19, 2015, MWD appealed the rulings against it. On December 7, 2015, SDCWA appealed the ruling against it concerning the Rate Structure Integrity provision. On December 17, 2015, the member agency parties appealed the rates ruling.

The trial court's rulings, including its rates ruling and its damages award,  are not binding and only a final appellate court decision has a binding effect.  Metropolitan disagrees with the rulings against it and is confident that the appellate court will reverse.  Moreover, only Metropolitan's Board of Directors, not a court, may re-set Metropolitan's rates.














Pricing Water Fairly in Southern California

As the primary provider of imported water for a six-county region, the Metropolitan Water District of Southern California and its Board of Directors must fairly allocate the costs of water through its rate structure. More than 15 years ago, Metropolitan began a comprehensive three-year process with extensive public input to develop a new regional pricing system for its 26 member public agencies that provide water to nearly 19 million residents.  The new pricing system was put into effect in 2003.  After seven years, SDCWA, a member agency, first sued Metropolitan to challenge the allocation of costs within its rate structure.  Each of SDCWA’s three lawsuits (2010, 2012, and 2014) challenges Metropolitan’s rates for the subsequent two years.  Numerous member agencies have joined the cases in support of Metropolitan.

 

At Issue: San Diego's Above-Market Water Purchase

 

A key issue and motivation for SDCWA’s lawsuits is SDCWA’s agreement to purchase conserved water from the Imperial Irrigation District. SDCWA chose to pay more for IID water than it would for Metropolitan’s water to achieve a degree of water independence and additional reliability. However, SDCWA has no pipeline network to transport this water from IID to San Diego County ― although it could have and still can choose to construct one ― so it currently can only use Metropolitan’s facilities.

Metropolitan agreed to accommodate SDCWA's request to exchange the IID water plus canal lining water for Metropolitan water, at a set price that SDCWA proposed based on Metropolitan's rates. Metropolitan provided SDCWA with valuable benefits as part of this agreement: $235 million and nearly 80,000 acre-feet of canal lining water per year for 110 years.

While the IID and canal lining water comes from the Colorado River Aqueduct, the water that Metropolitan delivers to SDCWA in its place  – often before SDCWA has made water available to Metropolitan – has less salinity and is a blend of both Colorado River and Northern California water.

Through its lawsuits, SDCWA now seeks to change the agreed price for the exchange water, by arguing that Metropolitan's rates are unlawful. SDCWA's lawsuits seek to shift SDCWA's agreed cost for the exchange water to consumers in Los Angeles, Orange, Ventura, Riverside and San Bernardino counties. SDCWA claims this cost is over $150 million to date, and could amount to over $2 billion over the contract term. Of course, consumers in those areas are not inclined to fund SDCWA's business decision to pay more to purchase and exchange IID water.

 

Transporting Water: The Primary Cost

 

The bulk of the water that Metropolitan delivers comes at relatively little cost for the water itself; the cost is in the construction, operation and maintenance of facilities to transport and deliver the supplies. Metropolitan gets its water from the Colorado River – only  200 miles to the east – and from the State Water Project's Feather River system in Northern California – over 400 miles away. This water moves through a complex system of pipes, canals and aqueducts. The water is lifted hundreds of feet over mountains and hills by massive pumps. To fund and maintain the State Water Project transportation system, Metropolitan must pay significant fixed transportation costs to the state every year, regardless of whether Metopolitan receives any water.  SDCWA's lawsuits seek to avoid paying its share of maintaining this transportation system – at the expense of the system's other users.

 

Water's Real Costs

 

Metropolitan sets rates through an open and transparent process that assures equity and fairness throughout its 5,200-square-mile service area. Metropolitan’s Board of Directors is comprised of representatives from each of Metropolitan’s 26 member agencies, thus representing, who represent the region as a whole,.  The member agencies  rely on this rate system to evenly collect costs across the region. The water system funded through these rates provides Southern California with a reliable supply of high quality water that benefits all residents and businesses and serves the region’s $1 trillion economy.

Metropolitan’s rate structure separates or “unbundles” its rates and charges to provide transparency and clearly show what service member agencies receive, what that service costs and what they pay for it. As an example, the cost to transport water is paid in part through the System Access Rate, reflecting the cost of operating, maintaining and investing in the basic infrastructure. In addition, the System Power Rate collects the cost to pump water through the Colorado River Aqueduct and from Northern California. Also, all Metropolitan deliveries include the Water Stewardship Rate, which funds Metropolitan’s conservation, recycled water and other local resource development programs. Those programs create capacity in Metropolitan’s system to enable delivery of additional water, such as the exchange water, and avoid costs to build and maintain further transportation facilities. Metropolitan also has a Water Supply Rate, reflecting Metropolitan’s cost to acquire water.

In addition to challenging why it should share in the cost of building and maintaining the necessary water transportation system, SDCWA argues that it should not have to pay the Water Stewardship Rate as part of Metropolitan’s transportation (delivery) charges. Exempting SDCWA’s exchange water from these charges would simply mean that everyone else outside of San Diego County would have to pay more for conservation, recycling and other local resource development, as well as for operating and maintaining a reliable delivery system.

 

At Risk: A Regional Approach to Water Reliability

Metropolitan has built and funded a water supply system that is the backbone of the region’s $1 trillion economy. This complex system has been built and maintained over more than 80 years through Metropolitan’s cooperative, regional, cost-share model. SDCWA’s lawsuits seek to undermine this proven and successful regional approach and replace it with cost-shifting strategies that attempt to benefit one community over another. Outside of San Diego, there is overwhelming support for Metropolitan’s current rate structure which reflects an equitable and regional approach.

 

Legal Documents

Other Documents
       • Rates Policy Library Documents
       • Report on Terms of Initial Annexation of San Diego County Water Authority, April 2012

Metropolitan Water Rates

 

Metropolitan News Releases

 

June 21, 2017 
Metropolitan General Manager Issues Statement on San Diego Litigation

Feb. 25, 2014 
Metropolitan General Manager Releases Statement on Rate Case Tentative Determination by San Francisco Superior Court

April 10, 2012 
Months of Open, Public Meetings Reflected in Two-Year Metropolitan Budget, New Water Rates

March 8, 2012
Metropolitan Board Chairman Responds To San Diego County Water Authority's New Web Site

 

Jan. 6, 2012 
Lawsuit Challenging Metropolitan's Water Rate Structure Moves Ahead

Jan. 4, 2012
 Superior Court Makes Series of Rulings in Lawsuit Challenging Metropolitan Rate Structure 

 

June 14, 2011
Metropolitan Board Chairman's Statement Regarding Board Action to Preserve Conservation Incentives for San Diego Residents, Businesses Media

Articles/Opinions and Metropolitan Responses

June 23, 2017
Voice of San Diego, Court Ruling Throws a Wrench in Two Big Upcoming Water Decisions

June 22, 2017  
San Diego Union Tribune, County Water Agency May Suffer Multibillion-Dollar Legal Blow

June 24, 2012
Riverside Press-Enterprise, Op-ed by Joe Kuebler and Tom EvansEnd big campaign to shift water costs Inland

April 30, 2012  
The Planning Report, by Professor Steve Erie Imperial Irrigation District Transfer, Not MWD, Drives Rates in San Diego

March 23, 2012
Read Metropolitan General Manager Jeffrey Kightlinger's response to San Diego Union-Tribune's March 13, 2012 editorial

March 8, 2012
San Diego Union-Tribune, Michael Gardner and Mike LeeCampaign slams regional water district

Jan 4 2012 
Union Tribune, Michael T. Hogan Split decision in water rate case

November 23, 2011
Read Metropolitan General Manager Jeffrey Kightlinger's response; Lawsuit undermines regional approach

June 15, 2011
Read Metropolitan Board Chairman's statement in response.

October 14, 2010
San Diego Union-Tribune, Op-ed by Jeffrey Kightlinger
Mud in the Waters: Law Firms Win, Ratepayers Lose

August 6, 2010
San Diego Union-Tribune, Op-ed by Timothy F. Brick The true price of imported water

Previous Wheeling Decision
Board Letter (May 2000)  - Summarizes Court of Appeal Opinions interpreting the Wheeling Statute regarding MWD v. IID    
Attachment: Court of Appeal Opinion in MWD v. IID (May 2000)    
Board Memo (Sep 2000) - Summarizes Moro Bay wheeling case     
Board Report (Apr 2001) – Summarizes Legal Interpretations of the Wheeling Statute regarding the Morro Bay and IID wheeling case

 
 
Click here to view other archived documents.
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