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June 29, 2022  |  Written by Kyler C. Rayden

New Legislation Clarifies That Government Code Section 53069.45 Does Not Cap Fines That an Irrigation District May Impose Under Irrigation District Law for Water Theft

Last week Governor Newsom signed Assembly Bill (AB) 2505 into law, clarifying that irrigation districts may impose increased penalties for water theft under Government Code section 53069.45, in addition to the fines or penalties currently available under the Irrigation District Law.

 

Assemblymember Adam Gray (D-Merced) authored AB 2505 in response to growing concern that Government Code section 53069.45 could cap the amount of fines irrigation districts may impose under the Irrigation District Law. Senate Bill 427, which the Governor signed into law last July, added Section 53069.45 to the Government Code. Section 53069.45 provides that any “local agency” providing water services may adopt an ordinance prohibiting water theft and subjecting a violator of such ordinance to an administrative fine or penalty. (Gov. Code, § 53069.45, subd. (a)(1).)

  

Under section 53069.45, local agencies may impose the following fines for occurrences of water theft committed by meter tampering in violation of the ordinance mentioned above:

 

(1) A fine not exceeding one hundred thirty dollars ($130) for a first violation.

(2) A fine not exceeding seven hundred dollars ($700) for a second violation of the same ordinance within one year of the first violation.

(3) A fine not exceeding one thousand three hundred dollars ($1,300) for the third violation and each additional violation of the same ordinance within one year of the first violation.

 

(Gov. Code, § 53069.45, subd. (b).)

 

All other forms of water theft in violation of the ordinance are punishable by the following fines:

 

(1) A fine not exceeding one thousand dollars ($1,000) for a first violation.

(2) A fine not exceeding two thousand dollars ($2,000) for a second violation of the same ordinance within one year.

(3) A fine not exceeding three thousand dollars ($3,000) for each additional violation of the same ordinance within one year.

 

(Gov. Code, § 53069.45, subd. (c).)

 

The term “water theft” as used in Section 53069.45 includes “an action to divert, tamper, or reconnect water utility services” which, along with the administrative fines mentioned above, could subject a thief to a misdemeanor under Penal Code section 498. (Gov. Code, § 53069.45., subd. (d)(2).) Notably, the local agency’s ordinance prohibiting water theft must establish the administrative procedure governing the imposition, enforcement, collection, and administrative review of the increased administrative fines or penalties for water theft provided under Section 53069.45. (Id. § 53069.45., subd. (a)(2).) 

 

Concern over the application of Section 53069.45 to irrigation districts arose from the term “local agency” which includes counties, cities, towns, districts, or other local public agencies. (Gov. Code, § 54951.) By using the terms “district” and “other local public agencies,” some irrigation districts grew concerned that section 53069.45 might be interpreted to cap the maximum fines they could impose under the Irrigation District Law, which in some instances can exceed the maximum fine permitted under section 53069.45. Moreover, Section 53069.45 was apparently intended for public utility water providers because the purpose behind the law was related to health and safety concerns involving public water systems.

 

In response, AB 2505 amends Section 53069.45 to clarify that: 1) the term “local agency” includes irrigation districts; 2) irrigation districts may impose fines for water theft under Section 53069.45 and under any authority granted by the Irrigation District Law; and 3) the penalties for water theft provided for under Section 53069.45 do not cap or limit the penalties that irrigation districts can impose under the Irrigation District Law. (Gov. Code, § 53069.45, subds. (d)(1); (e).)

 

If you have any general questions or questions about the applicability of AB 2505, please contact Kyler Rayden (krayden@somachlaw.com) or Aaron Ferguson (aferguson@somachlaw.com) for more information.

 

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