The Fight to Take Public Assets Back from Private Control May Be Winning in California

While high profile privatizations have dominated the news in recent years, a new trend is quietly emerging -- communities taking public assets back under public control. The trend is most pronounced in the area of water resources. In communities across the country, people are deciding that water is just too precious to subject to the profit motive.

No state has seen more of these "reverse" privatizations than California. Today, multiple towns are fighting for-profit firms for control of the public's water. One of those firms is the New Jersey-based for-profit American Water (known as California American Water Co. or Cal Am in California).

On the scenic Monterey Peninsula, a citizen's group called "Public Water Now" makes a compelling case for public control of the peninsula's scarce water resources. Public Water Now alleges that Cal Am's long-term mismanagement of the water resources and failed efforts to secure new water resources have cost ratepayers some $100 million since 2004.

In 1995, a court ordered pumping of the area's primary water source, the Carmel River, to be cut back by 70 percent by 2017. With the deadline looming, Cal Am has failed to secure another source of water. "Cal Am has shown either poor planning, poor management, poor judgment, poor decision-making, or all of the above," says Public Water Now's website. Even though it has failed in its major responsibility to the Monterey Peninsula, the firm has raked in a steady rate of profit from peninsula residents -- 30 cents on the dollar in pretax profits for 2012.

After abandoning two prior plans for establishing desalination facilities, Cal Am has a new proposal for another "desal" plant. The project would depend on a ratepayer surcharge and a public bond offering. This would pass nearly all risks on to ratepayers say critics, but at the end of the day ratepayers would have no ownership stake in the asset.

Some peninsula residents are saying enough. They want public control of the public's scarce water resources.

When it Comes to Precious Water, Is it Better to Be a Renter or an Owner?

In the United States, 86 percent of Americans receive their water services from a publicly owned and operated utility. But for-profit firms have made inroads in recent decades and see public water as a new profit center. In 2011, Citigroup economist Willem Buiter predicted that "water as an asset class will, in my view, become eventually the single most important physical-commodity based asset class, dwarfing oil, copper, agricultural commodities and precious metals."

"Any solution to the Monterey Peninsula's serious water problem demands long term planning, long term investment and a consistent public planning process unfettered by short term demands for shareholder profitability. Public ownership and public control would make the whole process easier and remove conflicts of interest," Wenonah Hauter, Executive Director of the non-profit watchdog group Food & Water Watch, told CMD.

Cal Am is "so strongly driven by pure profit that they will simply ignore more economical options," says Ron Cohen. Cohen, a successful software executive, founded the nonprofit advocacy organization Public Water Now. The group studied the situation and drafted an initiative for voters that would require the Monterey Peninsula Water Management District to pursue a public purchase of Cal Am's local assets.

"You just have to ask yourself," Cohen said, "do you want to be a renter for the rest of your life, and for generations to come, or do you want to be an owner?"

The initiative reads: "The voters of the District assert that the District should, as soon as practicable and to the extent permitted by law, pursue the acquisition of Cal Am's water system assets and infrastructure in order to deliver maximum value to ratepayers in perpetuity. Such public ownership of the water system not only will remove Cal Am's current for-profit, investor-driven bias, but will also eliminate the excessive fees, costly procedures, and burdensome jurisdictional control of the CPUC over water service on the Monterey Peninsula."

The issue will be put to the voters on the June 2014 ballot.

Cal Am Prepping for Battle

But it won't be smooth sailing for proponents of public water. Cal Am has made a lot of money on the peninsula and is not likely to go down without a fight. It successfully beat back a previous referendum on public water.

In November 2005, groups mobilized behind "Measure W," a question on the ballot that would have simply authorized a study to assess the process for a community buy-out of the water utility. To defeat the measure, Cal Am hired BNA Communication, which used direct mail, field communications, and television, radio, and newspaper advertisements to fight back. Measure W was defeated with 62 percent voting no. A judge later allowed Cal Am to pass the costs of its "public outreach" -- $1,353,831 -- onto its customers through new surcharges.

This time around, it will be different, says Cohen. First, while the previous initiative authorized only an expensive study, "the new initiative maps a direct line from passage to acquisition," says Cohen. Second, Public Water Now conducted a poll showing that two-thirds of residents were inclined to support the initiative. The group has teams geared up to go door-to-door to make the case for public control, and they are already past the halfway point on signature collection. But the biggest difference between 2005 and today is that "we have had eight more years of Cal Am and they have failed on two more occasions to solve the peninsula's water problems," says Cohen.

Scare tactics will be the company's preferred rebuttal. Cal Am representative Catherine Bowie told the local news that any public takeover will result in an eminent domain proceeding because Cal Am's assets are "not for sale." She warned that any eminent domain proceeding would be lengthy, contentious, and costly.

Eminent domain is a legal tool used by governments to purchase private property for a public purpose, such as for the construction of power lines. If homeowners don't want to sell, the government can still legally secure the property as long as it pays "fair market value."

But the threat does not bother Cohen. He points to Felton, California. In 2001, Cal Am purchased Felton's water system and a year later proposed a 74 percent rate hike. In response, residents formed an action group and petitioned Santa Cruz County to establish a public agency to exercise control over the water system. In July 2005, Felton residents voted 3-to-1 in favor of issuing $11 million in bonds and raising taxes in order to buy their water system back. The water district offered Cal Am $7.6 million, its appraised value, but the company refused, demanding $25 million. A week before the eminent domain proceeding was set to begin, however, the company settled the case for $10.5 million.

Since then, the community has steadily invested in the water system, and homeowners have saved about 30 percent on their water bills, says Food & Water Watch.

Trend Towards Public Ownership or "Municipalization"

In case you think the Monterey struggle is quixotic, you should know there is a bit of a trend in successful public takeovers or "municipalizations."

Ron Cohen explains that most of these municipalizations have to do with three issues: local control, better customer service, and better prices:

• In 2007, the city of O'Fallon, Missouri was considering selling its public water system to American Water, but delayed after public protest. In 2009, after more than two decades of contracting with private companies to run the system, the city opted for complete public provision of water. It saved 15 percent by operating the systems with public workers instead of private contractors.
• In 2008, citizens in the town of Cave Creek, Arizona took control of their water system, which had always been privately owned and operated.
• In 2001, Montara, California residents voted four-to-one in favor of a public takeover of the water system. At first, Cal Am refused to sell, but the California Public Utilities Commission and Montara Water & Sanitary jointly purchased the system in August 2003.

But there is a fourth reason as well. When Public Water Now polled peninsula residents on how they felt about a public takeover, "their number one reason was to keep the money in the local community. In the next 10 years, $300 million will be sucked off the peninsula and sent to New Jersey never to be recovered," contends Cohen.

With a public water system, any revenues raised are not forked over to distant shareholders, but are reinvested into the public system for the long term. And any desalination facility that is built will be owned and controlled by the members of the community themselves.

For the first time on the Monterey Peninsula, citizens will be owners and not renters.