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WC Sec 81300-81461 BAY AREA WATER SUPPLY AND CONSERVATION AGENCY
81300. This division shall be known and may be cited as the Bay
Area Water Supply and Conservation Agency Act.
81301. The Legislature finds and declares all of the following:
(a) Many separate cities, districts, and public utilities are
responsible for distribution of water in portions of the Bay Area
served by the regional system operated by the City and County of San
Francisco. Residents in the Counties of Alameda, San Mateo, and
Santa Clara who depend on the water made available on a wholesale
basis by the regional system have no right to vote in elections in
the City and County of San Francisco and are not represented on the
San Francisco commission that oversees operation of the regional
(b) The San Francisco regional system is vulnerable to
catastrophic damage in a severe earthquake, which could result in San
Francisco and neighboring communities being without potable water
for up to 60 days. The San Francisco regional system is also
susceptible to severe water shortages during periods of below average
precipitation because of insufficient storage and the absence of
contractual arrangements for alternative dry year supplies.
(c) The lack of a local, intergovernmental, cooperative governance
structure for the San Francisco regional system prevents a
systematic, rational, cost-effective program of water supply, water
conservation, and recycling from being developed, funded, and
(d) It is the intent of the Legislature to enable local
governments responsible for water distribution in the three counties
to establish a multicounty agency authorized to plan for and acquire
supplemental water supplies, to encourage water conservation and use
of recycled water on a regional basis, and to assist in the financing
of essential repairs and improvements to the San Francisco regional
water system, including seismic strengthening.
(e) The need for coordinated planning and implementation of
strategies for water supply, water conservation, water recycling,
and repair and improvement of the San Francisco regional system may
appropriately lead to the establishment of the Bay Area Water
Planning and Conservation Agency.
81302. Unless the context otherwise requires, the definitions in
this article govern the construction of this division.
81303. "Agency" means the Bay Area Water Supply and Conservation
81304. "Board" means the board of directors of the agency.
81305. "Eligible public entities" means the 26 public entities in
San Mateo County, Alameda County, and Santa Clara County that
purchase water from San Francisco pursuant to the Master Water Sales
Contract, that include Alameda County Water District, City of
Brisbane, City of Burlingame, Coastside County Water District, City
of Daly City, City of East Palo Alto, Estero Municipal Improvement
District, Guadalupe Valley Municipal Improvement District, City of
Hayward, Town of Hillsborough, Los Trancos County Water District,
City of Menlo Park, Mid-Peninsula Water District, City of Millbrae,
City of Milpitas, City of Mountain View, North Coast County Water
District, City of Palo Alto, Purissima Hills Water District, City of
Redwood City, City of San Bruno, City of San Jose, City of Santa
Clara, Skyline County Water District, City of Sunnyvale, and
Westborough Water District.
81306. "Project" means a work and all of the activities related to,
or necessary for, the acquisition, construction, operation and
maintenance of a work, including, but not limited to, planning,
design, financing, contracting, project management, and
81307. "Regional water system" means facilities for the storage,
treatment, and transmission of water operated by San Francisco
located in the Counties of Tuolumne, Stanislaus, San Joaquin,
Alameda, Santa Clara, San Mateo, and three terminal reservoirs in San
81307.5. "San Francisco" means the City and County of San
81308. "Work" or "works" include, but is not limited to,
reservoirs, water treatment plants, facilities for the transmission
of water, water conservation measures and programs, facilities for
the conjunctive use of surface water and groundwater, and facilities
for the transmission of recycled water.
81309. "Zone" means an improvement district, assessment district,
or area benefiting from a project.
81315. (a) The governing body of a public entity identified in
Section 81305, by a majority vote of all of its members, may declare
the intention of that entity to form the agency with all of the other
public entities identified in that section.
(b) The resolution shall meet all of the following requirements:
(1) Identify the name of the public entity adopting the
(2) Identify the name of each public entity proposed to be a
member of the agency, which shall include all public entities
identified in Section 81305.
(3) Fix the time and place within the boundaries of the public
entity adopting the resolution at which a hearing will be held by its
governing body to determine whether to form the agency and whether
to become a member of the agency. The date of the hearing may not be
less than 30 days, nor more than 60 days, from the date of the
adoption of the resolution.
(4) Direct publication of the resolution one time in a newspaper
of general circulation within the boundaries of the public entity
adopting the resolution at least two weeks prior to the date set for
81316. The governing board of the public entity adopting the
resolution pursuant to Section 81315, not later than 10 days after
the date of the adoption of the resolution, shall mail a certified
copy of the resolution to the governing body of each public entity
identified in the resolution as a proposed member of the agency. The
governing body of each proposed member, not later than 60 days after
the date of the adoption of the resolution described in Section
81315, shall adopt a resolution fixing the time and place within the
boundaries of that public entity at which a hearing will be held to
determine whether to form the agency and whether to become a member.
The date of the hearing shall be not less than 30 days, nor more
than 60 days, from the date of the adoption of the resolution by that
public entity. The resolution shall be published one time in a
newspaper of general circulation within the boundaries of that public
entity at least two weeks prior to the date set for the public
81317. At the times and places specified in the resolutions adopted
pursuant to Section 81315 or 81316, the governing body of each
public entity shall hold a public hearing on the question of whether
to form, and become a member of, the agency.
81318. As soon as practicable after the completion of the public
hearing described in Section 81317, and in any event not later than
60 days thereafter, the governing body of each public entity shall
adopt a resolution that declares the finding of the governing body
as to whether to form and become a member of the agency. The
adoption of the resolution, whether affirmative or negative, is
subject to referendum pursuant to Division 9 (commencing with Section
9000) of the Elections Code, but shall not be a "project" for the
purposes of the California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code).
81319. Not later than 10 days after the date of the adoption of the
resolution required by Section 81318, the governing body of each
public entity shall cause a certified copy of the resolution to be
forwarded to the Board of Supervisors of San Mateo County.
81325. Not later than 60 days from the date of the receipt of the
resolutions pursuant to Section 81319, the Board of Supervisors of
San Mateo County shall determine whether or not resolutions to form
and join the agency have been adopted by at least 15 public entities
representing collectively at least 60 percent of the total water
deliveries of all the public entities identified in Section 81305.
In making that determination, the board of supervisors shall use the
water delivery quantities set forth in subdivision (b) of Section
81460. If 15 or more public entities representing collectively 60
percent or more of those water deliveries have adopted those
resolutions, the board of supervisors, by order entered in its
minutes, shall declare that the agency has been formed and list each
public entity that is a member of the agency.
81325.5. In making the determination required by Section 81325, the
board of supervisors shall include all resolutions received by the
county at least 10 days before the date of the public meeting at
which the determination is made.
81325.7. If the board of supervisors determines that the
resolutions submitted are insufficient to form the agency, the
eligible public entities may again undertake the process described in
Sections 81315 to 81319, inclusive, at any time. In addition,
resolutions adopted that approve formation of the agency may remain
in effect for the time specified in those resolutions, unless those
resolutions are otherwise repealed.
81326. The Clerk of the Board of Supervisors of San Mateo County,
not later than 10 days from the date of entry of an order described
in Section 81325, shall file a certificate with the Secretary of
State identifying the name of the agency and the names of each public
entity that is a member of the agency. The board of supervisors
shall include a map showing the boundaries of the agency, with
reference to the boundaries of each member public entity.
81327. The Secretary of State, not later than 10 days from the date
of the receipt of the certificate described in Section 81326, shall
issue a certificate of formation reciting that the agency has been
formed pursuant to this division and identifying the public entities
of which the agency is comprised. The Secretary of State shall
transmit a copy of the certificate to each public entity that is a
member of the agency.
81328. The formation of the agency shall be effective on the date
of the issuance of the Secretary of State's certificate.
81329. No invalidity or irregularity in any proceeding that does
not substantially and adversely affect the interests of any public
entity identified in Section 81305 may be held to invalidate the
formation of the agency.
81330. Any action or proceeding in which the validity of the
formation of the agency, or any of the proceedings in relation
thereto, is contested, questioned, or challenged shall be commenced
not later than 60 days from the date of the Secretary of State's
certificate of formation. In the absence of that action or
proceeding, the formation and legal existence of the agency, and all
proceedings in relation thereto, shall be held to be in every respect
valid, legal, and incontestable.
81331. The formation of the agency, proceedings to increase its
membership pursuant to Section 81456 or 81456.5, or the establishment
or modification of any zone or improvement district is not subject
to the Cortese-Knox-Hertzberg Local Government Reorganization Act of
2000 (Division 3 (commencing with Section 56000) of Title 5 of the
81335. The agency shall be governed by a board of directors.
81336. (a) The governing body of each member public entity shall
appoint one member to the board of the agency. Each director shall
be a registered voter and reside within the boundaries of the member
public entity whose governing board appoints him or her.
(b) For the purposes of subdivision (a), the governing body may
appoint one of its own members to the board if that person otherwise
meets the requirements of that subdivision.
(c) (1) The Board of Supervisors of San Mateo County shall appoint
one member to the board who is an officer or employee of the
California Water Service Company.
(2) The Board of Supervisors of Santa Clara County shall appoint
one member to the board who is an officer or employee of Stanford
(d) The initial appointments shall be made not later than 60 days
after the date of the issuance of the certificate of formation
pursuant to Section 81327.
81336.5. (a) No incompatibility of office shall result from an
elected official serving on the board of the agency and on the
governing board of a member public entity. A board member may vote
on contracts or other matters involving the member public entity he
or she represents.
(b) The agency may enter into a contract with California Water
Service Company only if both of the following requirements are met:
(1) The director appointed by the Board of Supervisors of San
Mateo County does not participate in a vote on the contract.
(2) The contract is approved by the affirmative vote of a majority
of all members of the board other than the director appointed by the
Board of Supervisors of San Mateo County.
(c) The agency may enter into a contract with Stanford University
only if both of the following requirements are met:
(1) The director appointed by the Board of Supervisors of Santa
Clara County does not participate in a vote on the contract.
(2) The contract is approved by the affirmative vote of a majority
of all members of the board other than the director appointed by the
Board of Supervisors of Santa Clara County.
(d) A contract approved pursuant to the requirements of this
division does not constitute a violation of Section 1090 or 1097 of
the Government Code, nor is it void or voidable pursuant to Section
1092 of the Government Code.
81337. Each director, before entering upon the duties of his or her
office, shall take the oath of office as provided for in the
California Constitution and laws of the state.
81338. (a) Each director shall serve a term of four years.
(b) Notwithstanding subdivision (a), the directors initially
appointed to the board shall determine, by lot, that one-half plus
one of their number shall serve for four years and the remaining
directors shall serve for two years. Thereafter, each appointing
authority shall appoint a person to replace its respective director
or may reappoint its director for an unlimited number of terms.
(c) A vacancy on the board shall be filled by the respective
appointing authority not later than 90 days from the date of the
occurrence of the vacancy.
81339. Each director may receive compensation in an amount
prescribed by the board, not to exceed one hundred dollars ($100) per
day for each day's attendance at meetings of the board, not to
exceed four meetings in any calendar month. In addition, each
director may be reimbursed for actual, necessary, and reasonable
expenses incurred in the performance of duties performed at the
request of the board. The compensation of directors may be increased
pursuant to Chapter 2 (commencing with Section 20200) of Division
81400. A majority of the members of the board constitutes a quorum
for the transaction of business. The board shall act only by
ordinance, resolution, or motion.
81401. The board shall hold its first meeting as soon as possible
after the appointment of the initial directors. At its first
meeting, and at its first meeting in January each year thereafter,
the board shall elect a chairperson and a vice-chairperson from among
81402. The board shall provide for the time and place of holding
its regular meetings. All meetings of the board shall be called and
held in accordance with the Ralph M. Brown Act (Chapter 9 (commencing
with Section 54950) of Part 1 of Division 2 of Title 5 of the
81403. Subject to Section 81405, each director has one vote. The
affirmative vote of a majority of the total membership of the board
is necessary and sufficient to carry any motion, resolution, or
ordinance, except when weighted voting is in effect pursuant to
Section 81404 or as otherwise provided by this division.
81404. Before the vote on any motion, resolution, or ordinance is
taken, any director may call for weighted voting. Upon such a call,
Section 81405 shall apply as to that motion, resolution, or
81405. (a) Weighted voting shall be based on the average deliveries
of water during the 2000-01 fiscal year, as set forth in Section
(b) When weighted voting is in effect, there shall be a total of
100 possible votes. The allocation of these votes among the
directors shall be determined as follows:
(1) The water deliveries to each member public entity, California
Water Service Company, and Stanford University, as set forth in
Section 81460, shall be totaled.
(2) Each director representing a member public entity whose
individual water delivery is less than 1.5 percent of the total
amount calculated pursuant to paragraph (1) shall be assigned one
(3) The water deliveries to all member public entities assigned
one vote pursuant to paragraph (2) shall be totaled and that sum
shall be subtracted from the total amount calculated pursuant to
(4) The ratio of individual water deliveries to each remaining
member public entity, California Water Service Company, and Stanford
University to the total water deliveries calculated pursuant to
paragraph (3) shall be determined and expressed as a fraction.
(5) The total number of votes assigned to directors pursuant to
paragraph (2) shall be subtracted from 100.
(6) The number resulting from the calculation described in
paragraph (5) shall be multiplied by the fractions calculated
pursuant to paragraph (4), and the products of that multiplication
shall be rounded to the nearest whole number. Each director, other
than those assigned one vote pursuant to paragraph (2), shall be
assigned the number of votes resulting from this calculation.
(c) When weighted voting is in effect, the affirmative vote of
directors representing both (1) a majority of the members of the
board present and voting, and (2) a majority of the number of votes,
determined pursuant to this section, represented by directors present
and voting shall be necessary to carry any motion, resolution, or
(d) Notwithstanding any other provision of this division, the
board may establish alternative procedures and methods for weighted
voting, including a limitation on the types of measures to which it
applies, by a vote of (1) at least two-thirds of all the directors of
the board, each director having one vote on the question, and (2) at
least 51 votes, determined pursuant to this section.
81406. (a) On all ordinances and resolutions, and on all questions
to be decided by weighted voting, the roll shall be called and ayes
and noes recorded in the minutes of the proceedings of the board.
(b) Motions, other than motions to be decided by weighted voting,
may be adopted by voice vote, except that the roll shall be called at
the request of any director.
81407. The board shall appoint a general manager, a financial
officer, and a secretary. The board may establish other offices that
may be necessary or convenient. The board shall appoint, and
prescribe the duties, compensation, and terms and conditions of
employment of, all officers.
81408. The board may employ other employees that the board
determines are necessary or convenient and may delegate to the
general manager the authority to employ or contract for the services
of additional assistants or employees that the general manager
determines necessary or convenient to operate the agency. The board
shall extend offers of employment on terms comparable to those
applicable to the employees of the Bay Area Water Users Association
on January 1, 2003, as determined by the board.
81409. The board may require, and establish the amount of, official
bonds of officers and employees that are necessary for the
protection of the funds and property of the agency.
81410. (a) Article 4 (commencing with Section 1090) of Chapter 1 of
Division 4 of Title 1 of the Government Code applies to all officers
and employees of the agency.
(b) The agency is a "local government agency" for the purposes of
the Political Reform Act of 1974 (Title 9 (commencing with Section
81000) of the Government Code).
81415. The agency may exercise the powers that are expressly
granted by this division, together with other powers that are
reasonably implied from those express powers, and powers necessary
and proper to carry out this division.
81416. The agency may adopt a seal and alter it at pleasure.
81417. The agency may adopt regulations to carry out this division.
81418. (a) The agency may make contracts of any nature, including,
but not limited to, contracts to employ labor, to indemnify and hold
harmless, and to do all acts necessary or convenient for the full
exercise of its powers.
(b) The agency may contract with any department or agency of the
United States, the state, a public or private entity, or person.
81419. The agency may take by grant, purchase, bequest, devise,
lease, or eminent domain, and may hold, enjoy, lease, sell, or
otherwise dispose of real and personal property of any kind, within
or outside the boundaries of the agency.
81420. The agency may plan, finance, acquire, construct, maintain,
and operate facilities for the collection, transmission, treatment,
reclamation, reuse, and conservation of water. The agency may carry
out any project or work.
81421. The agency may disseminate information concerning its
81422. The agency may apply for and receive state and federal
grants, loans, and other financial assistance.
81425. The board shall adopt a budget for each fiscal year.
81426. The accounts of the agency shall be audited annually in
accordance with generally accepted auditing standards by independent
certified public accountants with experience in auditing the accounts
of local public entities.
81427. The agency may borrow money, incur indebtedness, and issue
notes and bonds, as provided in this division or as otherwise
authorized by law.
81428. (a) The agency may issue revenue bonds upon the adoption of
an ordinance by a two-thirds vote of all of the members of the board
present and voting which also represents at least 51 votes determined
pursuant to Section 81405. For the purposes of issuing bonds
pursuant to this subdivision, the agency need not conduct an election
or otherwise secure the approval of the voters within the boundaries
of the agency.
(b) The agency shall publish a notice in a newspaper of general
circulation at least 15 days before the meeting at which issuance of
revenue bonds is to be considered and shall provide an opportunity
for public comments during that meeting and before the directors vote
on the issuance of those bonds.
81429. The agency may issue bonds for the purpose of refunding any
revenue bonds of the agency, whether due or not due.
81430. The agency may issue negotiable promissory notes to acquire
funds for any agency purpose. The notes shall have a term not to
exceed five years. The total amount of notes issued pursuant to this
section that may be outstanding at any one time may not exceed one
million dollars ($1,000,000).
81431. The authority granted pursuant to the Improvement Act of
1911 (Division 7 (commencing with Section 5000) of the Streets and
Highways Code), the Municipal Improvement Act of 1913 (Division 12
(commencing with Section 10000) of the Streets and Highways Code),
the Improvement Bond Act of 1915 (Division 10 (commencing with
Section 8500) of the Streets and Highways Code), and the Mello-Roos
Community Facilities Act of 1982 (Chapter 2.5 (commencing with
Section 53311) of Part 1 of Division 2 of Title 5 of the Government
Code) may be exercised by the agency to carry out this division.
81432. Bonds and other evidences of indebtedness issued by the
agency are legal investments for all trust funds and for funds of all
insurers, commercial and savings banks, trust companies, and state
schools. Funds that may be invested in bonds of cities, cities and
counties, counties, school districts, or other local agencies may
also be invested in bonds and other evidences of indebtedness of the
81433. The board may impose assessments sufficient to pay the
operating expenses included in the budget, which shall be an
obligation of each member public entity, the California Water Service
Company, and Stanford University. The assessments shall be based
on, and proportional to, water delivery amounts described in Section
81434. The agency may use proceeds of bonds authorized by this
division for the construction, reconstruction, or improvement of any
works carried out by the agency. The agency may also make proceeds
of bonds authorized by this division available to other local public
agencies on mutually satisfactory terms and conditions to assist in
the construction, reconstruction, or improvement of works designed
and intended in whole or in part to furnish water to the members of
the agency, whether those works are carried out jointly by the agency
and other local public agencies, or solely by those other public
81435. The agency may impose reasonable rates, fees, and charges on
Stanford University, the California Water Service Company, and the
agency's member public entities for any program or service provided
or work performed by the agency. The agency may also impose
reasonable rates, fees, and charges on any other public or private
entity that enters into a contract with the agency for use of any
program or service provided or work performed by the agency. These
rates, fees, and charges shall be at least sufficient to generate
revenue to pay the principal and interest on any bonds issued by the
agency to carry out the work. The agency shall be solely responsible
for servicing the debt on any bonds it issues and the State of
California has no responsibility for those bonds.
81440. The agency may sue and be sued in all actions and
proceedings and in all courts and tribunals of competent
81441. All claims for money or damages against the agency are
governed by Part 3 (commencing with Section 900) and Part 4
(commencing with Section 940) of Division 3.6 of Title 1 of the
81442. An action to determine the validity of any contract, or any
bond, note, or other evidence of indebtedness, may be brought
pursuant to Chapter 9 (commencing with Section 860) of Title 10 of
Part 2 of the Code of Civil Procedure.
81445. The agency may do all of the following:
(a) Acquire water and water rights within or outside the state.
(b) Develop, store, and transport water.
(c) Provide, deliver, and sell water at wholesale for municipal,
domestic, and industrial purposes to any city, county, district,
other local public entity, public utility, or mutual water company
located within the boundaries of the agency, and to Stanford
(d) Acquire, construct, operate, and maintain any and all works,
facilities, improvements, and property within or outside the
boundaries of the agency necessary or convenient to carry out this
81446. The agency may conduct studies of the water supplies
available to its members, and their current and future demand for
water. The agency may develop plans for projects and programs that
can assist its members to meet those future water needs.
81447. The agency may provide, deliver, and sell water not needed
for municipal, domestic, or industrial uses within the boundaries of
the agency for beneficial purposes but shall give preference to users
within the agency. The supply of surplus water shall in every case
be subject to the paramount right of the agency to discontinue that
supply in whole or in part upon one year's notice to the purchaser or
user of that surplus water.
81448. The agency may not sell water to any retail user within the
boundaries of the agency. Sales to Stanford University shall not be
deemed sales to a retail user.
81449. Except as provided in Section 81452, the agency may exercise
the right of eminent domain in the manner provided by law to acquire
any property, within or outside the boundaries of the agency,
necessary or convenient to carry out this division.
81450. The agency is entitled to the benefit of any reservation or
grant, in all cases, where any right has been reserved or granted to
the state, or any agency or political subdivision thereof, or any
public corporation, to construct or maintain water-related facilities
in, under, or over any public or private lands. Nothing in this
section authorizes the agency to construct facilities on lands owned
or controlled by San Francisco without the consent of San Francisco.
81451. The agency may construct and operate works and facilities
in, under, over, across, or along any street or public highway or
over any of the lands which are the property of the state to the same
extent that those rights and privileges are granted to cities within
81452. The agency may not acquire by eminent domain, interfere
with, or exercise any control over, any water distribution facility
owned and operated by any city, city and county, local public entity,
or public utility without the consent of, and upon those terms that
are mutually agreed to by, that city, city and county, local public
agency, or public utility.
81455. Any territory annexed to, or detached from, a member public
entity, upon completion of the annexation or detachment, shall be
deemed annexed to, or detached from, the agency.
81456. (a) A public entity identified in Section 81305 that is not
a member at the time the agency is formed pursuant to Section 81328
may thereafter join the agency, with the approval of the board of the
agency and subject to those terms and conditions that the board
determines are necessary to ensure that the new member pays an
equitable share of the costs previously incurred by the agency.
(b) The new member shall appoint one director and, for the
purposes of this division, the new member shall be subject to the
water delivery amounts described in Section 81460 that apply to that
81456.5. San Francisco may become a member of the agency pursuant
to Section 81456.
81456.7. Not later than 10 days after the date on which any new
member is admitted, the agency shall notify in writing the Secretary
of State with regard to the name of the new member and the date of
81457. Membership of a public entity in the agency does not affect
the identity or legal existence, nor impair the powers, of that
81459. This division shall be liberally construed to carry out its
81460. (a) The water delivery quantities set forth in subdivision
(b) describe, for the purposes of this division, the average daily
deliveries of water from San Francisco to the identified entities
during the 2000-01 fiscal year.
(b) The water delivery quantities are as follows:
Average Daily Deliver-
ies in Hundred Cubic
Alameda County Water District
California Water Service Company
City of Brisbane
City of Burlingame
City of Daly City
City of East Palo Alto
City of Hayward
Town of Hillsborough
City of Menlo Park
City of Millbrae
City of Milpitas
City of Mountain View
City of Palo Alto
City of Redwood City
City of San Bruno
City of San Jose
City of Santa Clara
City of Sunnyvale
Coastside County Water District
Estero Municipal Improvement District
Guadalupe Valley Municipal Improvement District
Los Trancos County Water District
Mid-Peninsula Water District
North Coast County Water District
Purissima Hills Water District
Skyline County Water District
Westborough Water District
(c) If San Francisco becomes a member of the agency, the average
daily delivery of water to San Francisco during the 2000-01 fiscal
year, for the purposes of this division, shall be determined to be
118,973 hundred cubic feet.
81461. Nothing in this act changes the governance, control, or
ownership of the regional water system.