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Home My WebLink About2021-11-18; San Diego County Water Authority Second Refund to Member Agencies (Districts - All); Gomez, PazTo the members of the: CITY COUNCIL Date 1JllmlcA ./cc ~ CM _21af _____v0cM (3) L CMWD Board Memorandum Nov. 18, 2021 To: Carlsbad Municip ·strict Board of Directors From: Paz Gomez, Depu r, Public Works Vicki Quiram, Gene Via: Scott Chadwick, Ex er Ccarlsbad Municipal Water District Memo ID# 2021212 Re: .....,..,,__,_, .. hority Second Refund to Member Agencies (Districts -All) This memorandum provides an update to a previous Board Memorandum dated April 8, 2021, regarding a refund of $1,692,236.88 that the Carlsbad Municipal Water District (CMWD) received from the San Diego County Water Authority (Water Authority) (Attachment A). Background On April 8, 2021, staff provided a Board Memorandum on the refund that represented CMWD's share of funds awarded to the Water Authority for contract damages and interest from the Metropolitan Water District of Southern California (MWD). The Water Authority received a second award from the MWD for the same legal challenge and will be refunding the CMWD an additional $1,362,940.86, bringing the total refund awarded to the CMWD to $3,055,177.74. Both refunds are a result of the Water Authority's lawsuit with the MWD for unlawful rate charges assessed between the years 2011 and 2014. On May 11, 2021, the CMWD Board adopted Resolution No. 1653, authorizing use of the first refund to offset the rates that the CMWD pays the Water Authority for water supply, which will result in offsetting customer rate increases (Attachment B). Discussion On Oct. 28, 2021, the Water Authority announced a plan to distribute the second refund to its 24 member agencies (Attachment C). The CMWD will receive a second distribution in the amount of $1,362,940.86, bringing the total refund to $3,055,177.74. While the damages and interest award are important, particularly to the CMWD's rate payers, the judgment will also discourage future overcharges and thereby minimize future disputes. The Water Authority and the MV\/D are seeking to resolve remaining issues outside of court as they work together on the many water issues affecting both agencies now and in the future. In addition to the damages and interest, the rate case lawsuits generated other benefits including increasing the Water Authority's preferential rights to MWD water and affirming the Water Authority's access to MWD programs that support development of local supplies and water efficiency measures. Carlsbad Municipal Water District 5950 El Camino Real I Carlsbad, CA 92008 I 760-438-2722 t Board Memo -SDCWA Second Refund to Member Agencies (Districts-All) Nov. 18, 2021 Page 2 Next Steps Within the next few months, staff from the CMWD and the Finance Department will return to the CMWD Board with information on options for use of the second refund of $1,362,940.86, which the CMWD will receive, likely next week, from the Water Authority. Attachments: A. CMWD Board Memorandum dated April 8, 2021 B. CMWD Resolution No. 1653 C. News Release dated Oct. 28, 2021 cc: Geoff Patnoe, Assistant Executive Manager Celia Brewer, General Counsel Laura Rocha, Deputy City Manager, Administrative Services Robby Contreras, Assistant General Counsel Ryan Green, Finance Director Kim Riboni, Senior Accountant Shoshana Aguilar, Senior Management Analyst To the members of the: CITY COUNCIL Date i.t-/'l l'-1 CA_L CC ✓ CM ✓ ACM _jf___ DCM {3) .:L CMWD Board Memorandum April 8, 2021 . . (\ To: Carisbad Municipal Water ~tri' t Board of Oirectors From: Paz Gomez, Deputy City Mana · , Public Works Vicki Quiram, General Mana er --. ATTACHMENT A Ccarlsbad Municipal Water District - Memo ID #2021075 Vi.;i: Scott Chadwick; Executive ~~~ 1 \. _ _ _ Re: San Diego County Water Authority RE:?fuhct to Member Agencies (Districts -All) This memorandum provides information on the $1,692,236.88 refund from the San Diego County Water Authority (Water Authority) to. the Carlsbad Municipal Water bistrict (CMWD), which represents CMWD's share of contract damages awart:led from the Metropolitan Water District of Southern California (MWD) to the Water Authority. Background CMWD is one of the Water Authority's 24 member agencies. lh the Water Authority's effort to ensure water reliability, it has contimied to diversify the regi.on's water supply portfolio, reducing its reliance on MWD to 11% of its water supply. The. WaterAuthority·fiied lawsuits between 2010 and 2018 challenging MWD's water rates and charges as they were imposed on the Water Authority member agencies and their ratepayers. Attachment A summarizes past ant:! present litigation issues. Discussion On Jan. 13, 2021., the San Francisco Superior Court entered a final judgment entitling the Water Authority to $44,373,872 (hereafter reforrecl to as "$44.4 million") in damages and interest in addition to recovery of attorney's fees and costs in the first two lawsuits that challenged the rates and charges.set by the MWD. The $44.4 million Judgment represents an award of contract damages for rate charges that had been unlawfully assessed to the Water-Authority between 2011 and 2014. Specifically, the MWD overcharged its water *iwardShip rates; Which account for the MWD'strarisport of the Water Authorit(s independent waterthrough the MWD facilities; The attorney's fees and costs have not yet been determined. This final Judgment caps a 10-y·ear effort by the Water Authority _Board of Directors on behalf of San Diego County ratepayers. While the damages and interest award . . . . are important; the judgment will also discourage future overcharges and thereby minimize future disputes. · On Feb. 25:, 2021, the Water Authority Board voted to refund each member agency its proportionate share of the $44.4 million received from the MWD for damages and interest. The news release is included as Attachment B. Cai"l$bad IVluhicipal Water District 5950 El Camino Real I Carlsbad, CA 92008 I 760-438-272? t Board Memo -SDCWA Refund to Member Agencies (Districts -All) April 8, 2021 Page 2 The Water Authority calculated each member agency's refund based on the amount of municipal and industrial water each agency purchased from 2011 to 2014, when the MWD overcharged the . Water Authority. On March 4, 2021, the CMWD received a one-time payment of $1,692,236.88. To put this ih context, the CMWD total projected revenue for fiscal year (FY) 2020 -21 potabl.e water is approximately $40 million. Attachment C contains the MWD rate case total refund allocations of the $44.4 million. Member agencies, including CMWD, have worked with their attorneys to analyze options for the use of the refunded money as Proposition 218 limits how each agency can use these funds. A list of surveyed agencies, and their respective intended use ofthe refunded money is presented in Attachment t. Of 18 agencies surveyed, 13 intend to use the refund to offset future rate increc!ses. Other options mi:ly include dedicating the funds to the water Capital lnwravement Program (CIP) or refunding customers directly. A direct refund to customers would present a heavy and perhaps infeasible administrative burden for CMWD staff since billing records are not available and maintained from the full span of the refunded period, 2011-2014, and customers Ii ave changed due to moves since thattJme. While the office of CMWD's General Counsel provided CMWD staff with preliminary advice on the matter, no written opinion has been issued on the use of this refunded money. Accordingly, if the office of CMWD's General Counsel concurs, the Board staff report will include options for use of the $1,692,236.88 refund but Will recommend that the refund be used for offsetting future rate increases. In their efforts to narrow other un'-finalized lawsuits, th.e Water Authority's attorneys continue to work with the MWD to resolve fhe remaining legal issues. The Water Authority will distribute the attorney's fees and charges once the amounts are resolved. The Water Authority is working collaborativeiy with the MWD member agencies across the MWD' s six-county service are.as to update its long-term water resource and financial planning. The MWD's Integrated R.esources Plan, known as the IRP, will be its roadmap for the future~ factoring in updated data and plans by many MWD member agencies to develop local water supplies. Next Steps Within the next few months, staff from CMWD and the Finance Department Will return to the C:MWD Board with information on options for use of the $1,692;236.88 refund that CMWD received from. the Water AtJthority. Attachments: A. Fact Sheet-Water Authority/MWD Litigation B. News Release dated Feb. 25, 2021 C. MWD Rate Case Rebates and distribution of $44,373,872 for Local Water Agendes l Board Memo -SDCWA Refund to Member Agencies (Districts -All) April 8, 2021 Page 3 cc: Geoff Patnoe, Assistant Executive Manager Celia Brewer, General Counsel Laura Rocha, Deputy City Manager, Adrnini.strative Services Robby Contreras, Assistant General Counse.1 Ryan Green, Finance Director Kim Riboni, Senior Accountant Shoshana Agµilar, Senior Management Analyst O ur Region's Trusted Water Leader San Diego County Water Authority FACT SHEE1-ISSUES IN SDCWA/MWD LITIGATION1 What's been decided so far? ATTACHMENT A a. MWD breached Exchange Agreement by charging its WSR 2 on transportation (2011-14) Damages+ interest = $48 million (appx.3) Suspension of collection ofWSR (2018-2020) $45 million b; MWD could include current SWP costs in its transportation rate (no damages awarded)~ c. MWD miscalculated preferential rights, about 100,000AF rights per year awarded to Water Authority5 d. MWD's RSl6 clause illegal Damages (restitution) TBD {stiil pending; see below) What's still pending? a. MWD breached Exchange Agreement by charging its WSR on transportation (2015-17)7 Damages+ interest -$32 mi/lion b. Restitution for RSI years (2011-2017)8 Damages+ interest = c. Offsetting benefits of wheeled water supplies9 (2011~2020; $250/AF I.ow estimate) Damages+ interest = e. WSR on supply purchases (2018~2020)1Q Damages+ interest = e. Attorney's fees/costs = $64 million $660 million $24 milllon $.15 million 1 MWD's 998 offer proposes that the Water Authority agree to an amendment of the Exchange Agreement; however, no amendment 1s at issue Tn the litigation, and thus is not shown here. 2Water Stewardship Rate. 3 All dollar numbers are approximate. 4 The W:;iter Authority had already paid the disputed .rates. 5 This i's not a damages issue; MWD has corrected its calculation ofpreferential rights. As a comparable for valuation of the 100,000 AFY of water; the Carlsbac;l Desalination Project cost ai:,out $1 l:iilHon to produce up to S(;i,000 AFY. · 6 Rate Str'Licture Integrity. 7This issue was decided against MWD in the 2011-20i4 cases but MWb claims it now has a new administrative recqrd and therefore wants to try the issue again. 8 Represents the difference between the Water Authority share of payments to fund WSR projects and benefits received with WSR payments to Exchange Agreement netted outforthe.period indicated; does not include Wat~r Authority's claim for subsidies for Carlsbad, though such LRP funding could be an alternative valui:!: for the same period. Overall, prior to adjustment for damages and recent LRP contrai;:ts, the Water Authqrity to date has paicj $170 mi/lion more to fund iNSFfprograms than it has received in benefits. 9 The wheeling statute requires MWD t.o calculate offsetting benefits bl.Jt MWD refuses to do so even though the Court of Appeal applied the wheeling statute to the Exchange Agreement. 10The claim forWSRon ?upply charges for2015~2017 is dupiicatiVe of the (b) restitution claim and so is not listed separately. ATTACHMENT B Our Region's Trusted Water Leader San Diego County Water Authority 4677 OverlandAvenue,San Diego, CA 92123 News Rel ease Ed Joyce (949).276-1675 cell Ejoyce@,sdcwa.mg $44.4 Million in MWD Overcharges Being Returned to Local Water Agencies Rate c;ases move closer to ·closure with damages payment by MWD Febmaty 25, 2021-The San Diego Cou~1ty Water Authority's Board of Directors today announced a plan to distribute a rebate of $44.4 million to its 24 member agencies across the · region after receiving a check for that amount from the Los Angeles-based Metropolitan Water District ofSoutheri1 California to pay legal damages and interest. The money resulted from the Water Authority's decade-long rate case litigation in state Superior Court . seeldng to compel MWD to set legal rates and repay overcharges. The Water Authority won sevetal critical issues in cases covering 2011-2014 and was deemed the prevailing party; which meaiis the. agency is also owed legal fees and charges in addition to the recent damages and interest payment fromMWD. The com1 rulings will also help avoid future overcharges and thereby minimize future disputes .over MWD's •ithis day has been a lc,ng time coming. We never wanted tQ litigate these issues -but if we had not had the courage to do so, MWD would still be collecting the illegal fees and we would not have money to give back to local ret;;ailwater agencies across the region." ■ Gary Croucher, Board Chair San Diego Cou.nty Water Authority unlawful Water Stewardship Rate for tra11Sportfr1g the Water AuthQtity' s independent water supplies through MWD facilities. Those charges ~ ifthey had continued -would have cost San Diego County residents more than $500 million over the life ofthe Water Authority's watet delivery contract with MWD. "This day has been a long time coming," said Water Authority Board Chair Gary Croucher. "We never wai1ted to litigate these issues -but if we had i10t had the coutage to do so, MWD would still be c.ollectiilg the illegal fees and we would not have tnoney to give back to local retail water agencies across the region.'' Per today's decision by the Water Al.).thority's Board, the $44.4 inillion will be returned to membel' agencies in proportion to their ovetpayme11ts between 2011-2014. the Water Authority . does rtot have a say in how member agencies use the refunds. The amount of legal fees .and costs owed to the Water Authority is yet to be determined. In addition to damages and interest, the rate case lawsuits generated other substantial benefits, such as requiring an increase in the Water Authority's preferential rights to MWD water by approximately 100,QOO acl'e-feet a yeai:, eqµivalent to about twice the annual production of the $1 billion Carlsbad Desalination Project. In February 2020, the Water Authority's Board of Directors voted to dismiss certain issues from the litigation after securwg more than $350 milli_on in local prqject subsidy benefits for the San Diego region. In doing so, tbe Water Authority acknowledged the MWD Board action to stop imposing its Water Stewardship Rate for transportfog the Water Authority's independent supplies, thµs tesolving for now that issue in future rate years. · As the laws.uits wind down, the Water Authority is working collaboratively with MWD m:ember agencies across Southem Califomia to update MWD' s long-te1m water resource and financial plans. MWD's Integrated Resources Plan, known as the IRP, will be the agency's roadm1:1-p for the future. The Water Authority is advocating forincl:usion of updated data and plans by many MWD member agencies to develop iocal water suppiies such as the Water Authority and its member agencies have done over the past two decades and will continue to do in the future._ ### The San Diego County WaterAuthority sustains a $245 billion regional economy and the quality of life for3.3 million residents through a multi-decade water supply diversification plan, major infrastructure investments and foiward'-fhinking policies that promote fiscal and environmental responsibility. A public agency created in 1944,. the WaterAuthority delivers wholesale water supplies to 24 retail water providers; including citfes, special districts ancl a military base: ~ 11dltg'llll"'WWW. instagram .com/sdcwa .·www.twitter.com/sdcwa @sdcwa www•.facebook.com/SanDiegoCountyWaterAuthority You{lj www.youtube.com/SDCWAvideo ATTACHMENT C .. . .. . . Agency Refund Amount Use of SDCWA Refund Payment Carlsbad MWD $1,692,236.88 To be determihed Del Mar, City of $108,025.65 Water Fund Contingency Escondido, City of $1,754,022.94 CIP Fallbrnok PUD $909,412.67 . Offsetting future rate increases/local supply development Helix WD $2,847,389.34 Offsetting future rate increases Lakeside WD $348,005.17 Capital Improvement Reserve Fund Oceanside, City of $2, 351,413.99 Offsetting future rate increases Olivenhain MWD $2,039,332.40 Offsetting future rate increases OtayWD $3,162,939.58 Offsetting future rate increases Padre Dahl MWD $1,157,551.53 Offsetting future rate increases Pendleton Military Reserve $4,958.08 To be determined Poway, City of $1,167,915.01 Offsetting future rate increases Rainbow MWD $1,343,382.03 Offsetting future rate increases Ramona MWD $596,663.83 To be determined Rincon Del Diablo MWD $630, 780.62 To be determined San Diego, City of $17,676,521.64 To be determined San Dieguito WD $368,002.42 Offsetting future rate increases Santa Fe ID $748,699.93 Offsetting future rate increases Sweetwater Authority $874,367.74 To be determined Vallecitos WD $1,590,62j,74 Offsetting future rate increases Valley Center MWD 1,332,471.26 Offsetting future rate increases Vista ID $1,571,006.35 Offsetting future rate increases Yuima MWD $98,149.47 Rate Stabilization ATTACHMENT B RESOLUTION NO. 1653 A RESOLUTION OF THE BQA8D OF DIRECTORS OF THE CARLSBAD MUNICIPAL WATER DISTRICT OF THE CITY PF CARLSBAD, CALIFORNIA., AUTHORIZING USE OF THE SAN DIEGO COUNTY WATER AUTHORITY {WATER AUTHORITY} REFUND TO OFFSET THE RATES THE CARLSBAD MUNICIPAL WAlER DISTRICT (CMWD) PAYS THE WATER AUTHORITY FOR WATER SUPPLY~ WHICH WILL RESULT IN OFFSETING FUTURE CUSTOMER RATE INCREASES WHEREAS, on March 4, 2021, the Water Authority ref1.mded the CMWD an amount of $1,692,237; and WHEREAS, this amount represents CMWD;s share of cqntract damages awarded from the Metropolitan Water District of Southern California {MWD) to the Water Authority for stewardship rate charges that MWO unlawfully assessed to the Water Authority between 2011 and 2014; and WHEREAS, the CMWD Board of mrettors {l}oard) pf the City of Carlsbad~ Caltfomia has determined it necessary and in the public interest to appre>ve the use of the Water Authority refund to offset the rates the CMWD pays the Water.Authority for water supply, which will result in offsetting future customer rate increases. NOW, THEREFORE, BE iT RESOLVED by the ·soard of Directors of the Carlsbad MunidpalWater · DistrJct of the City of Carlsbad, California, as fo.llows: 1. That the above recitations are true and correct. 2. That the San Diego County Water Authority refund in the amount of $1,692,237 be used to offset the rates the CMWD pays the Water Authority for water supply, Which will result in offsetting future customer rate increases. II II II II II II II II May 11, 2021 Item #3 Page 5 of 10 PASS~D, APPROVED AND ADOPTED at a Special Meeting of the Bo.ard of Directors of the Carlsbad Municipal Water District of the City ofCarlsbqd; California on the 11th day pf May, 2021; oV the following-vote, to wit AYES: NAYS: ABSENT: May 11, 2021 Hall, Blackburn, Acosta, Bhat-Patel; Schumacher. None. None. MATT HALL, PRESIDENT ~~ Tu,'Wllll'~ Tu< BARBARA ENGLESON, SERETARY (SEAL) Item #3 Page 6 of 10 . ATTACHMENT C Our Region's Trusted Water Leader San Diego County Water Authority 4677 Overland Avenue, San Diego, CA 92123 News Release Ed Joyce (949) 276-1675 cell Ejoyce@sdcwa.org $35.9 Million More in MWD Overcharges Being Returned to Local Water Agencies Final settlement of litigation now in reach Editor's Note: A table of distributions by agency follows the release. October 28, 2021 -The San Diego County Water Authority's Board of Directors today announced a plan to distribute $35.9 million to its 24 member agencies across-the region after receiving a fund transfer from the Los Angeles-based Metropolitan Water District of Southern California to pay legal damages and interest. Combined with a similar payment in February, the Water Authority has distributed more than $80 million to its member agencies in 2021 as a result of its successful rate litigation against MWD. The two parties are seeking to resolve the remaining issues outside of court as they partner on water supply reliability, conservation, affordability, and climate change issues challenging Southern California. "The Water Authority is leading efforts in San Diego County to maintain a reliable and affordable water supply." ■ Gary Croucher, Board Chair San Diego County Water Authority "The Water Authority is leading efforts in San Diego County to maintain a reliable and affordable water supply," said Water Authority Board Chair Gary Croucher. "While the rate litigation was necessary to protect our ratepayers, we fully embrace the new spirit of collaboration at MWD under General Manager Adel Hagekhalil and Board Chair Gloria Gray as we focus onthe challenges ahead with a united front." The payments approved by the Board today resulted from the Water Authority's rate case. litigation in state Superior Court asking MWD to set legal rates and repay overcharges. The Water Authority won key issues in cases covering 2011-2014 and was deemed the prevailing party by the Comi, which means it is also owed legal fees and charges in addition to the recent damages and interest payment from MWD. In February, the Water Authority sent . checks totaling $44.4 million to its member agencies after it received a check for that amount from MWD to remedy overcharges from 2011-2014. Per today's decision by the Water Authority's Board, an additional $35.9 million will be returned to member agencies in proportion to their overpayments between 2015-2017. The court rulings will also help avoid future overcharges and thereby minimize future disputes over MWD's rates charged to transport the Water Authority's Colorado River water supplies through MWD facilities. Those charges -if they had continued -would have cost San Diego County residents more than $500 million over the life of the Water Authority's water delivery contract with MWD. In addition to damages and interest, the rate case lawsuits generated other substantial benefits, including an increase in the Water Authority's preferential rights to MWD water by approximately 100,000 acre-feet a year, equivalent to about twice the annual production of the $1 billion Carlsbad Desalination Project. Another outcome of the lawsuits affirmed the Water Authority's access to MWD programs supporting development of local supplies and water-efficiency measures. Since the court ruled it was illegal for MWD to prohibit the Water Authority from accessing these programs, the Water Authority has secured almost $500 million in local project benefits for the San Diego region. ### The San Diego County Water Authority sustains a $253 billion regional economy and the quality of life for 3.3 million residents through a multi-decade water supply diversification plan, major infrastructure investments and forward-thinking policies that promote fiscal and environmental responsibility. A public agency created in 1944, the Water Authority delivers wholesale water supplies to 24 retail water providers, including cities, special districts and a military base. @l 1111>~twww.instagram.com/sdcwa www.twitter.com/sdcwa @sdcwa O www.facebook.com/SanDiegoCountyWaterAuthority You[mm, www.youtube.com/SDCWAvideo $ 8!0 ., .24,M.,+ Com ib,i ne·d Disb 1ur:se 1men;t •~=-='M~Jn~r oo~ng_~_.!)n:~1bj.b!!lt9JlllJ = Carllsbad M. W. [), $1,692.1136. 88. Del f.liar,. City of $1081.025.65 IEsioondf!do, Cijty of $1., 7541022. 94 IFaUbrook RU.-0.. S909ilt2..67 HeHx W~D. Sl.:;847 1389.34 11..akesfde w. D. S34181005 .17 Ocei3ilflSijde, C11ty of . $2.,351 1413. 99 Oliv-enhain il\1\.W.D . S.2,039,332.40 otay,w:o.. Si3,162,93'9.5iB Padrr,e fDam M. W. D. $1.11 157, 551. 53 Pendl,eton Mii'lilary Reserve $41 95,8.. 08 .Pov1ay, City of · · $1,1671915.IJ1 1Rai1nbow .M. W. D,. . $il, 3-43:,.382 .• 03 Ra1:mona M. W. D... $5961663. 83 lfti neon Del Dfab[o N1. W.D. $6301780. 62 :SanD1,ego, City of St?,,6,761 521.64 San Dieguito W.D~ $3681002.42 :Santa IFe I .D. $7 -48,699. 93 :Sv1eetvr.rater Authority $874,.367. 7 4 VaUecitos w. D. $1 ., 5901,62.3. 7 4 Vatley Cie11te:r .M.. W. [t. $·1, 3:321,417·1 . 26, Vista ll.D. 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