Filed 4/29/22 City of San Diego v. Com. on State Mandates CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Section 6 of article XIII B of the California Constitution requires the State of California, subject to certain exceptions, to “provide a subvention of funds to reimburse” local governments “[w]henever the Legislature or any state agency mandates a new program or higher level of service.” In this case, the City of San Diego (the City) seeks reimbursement under this provision for the costs of complying with a new permit condition that the State Water Resources Control Board (the Water Board) imposed on operators of water systems that serve K-12 schools. Under the new permit condition, these operators must provide free lead testing at each K-12 school they serve on the school’s request.

In this appeal, we must determine whether the Water Board’s new condition requires “a new program or higher level of service” within the meaning of article XIII B, section 6. The Commission on State Mandates (the Commission), which is charged with hearing claims under section 6, concluded it did not. It found, based on Supreme Court precedent, that a new state law can be said to require “a new program or higher level of service” in two circumstances: first, if the law carries out a governmental function of providing services to the public; and second, if the law imposes unique requirements on local governments that do not apply generally to all persons in the state. But the Commission found neither description fits the requirement here. It reasoned that the Water Board’s requirement neither carries out a governmental function of providing services to the public, because the provision of water is not a governmental function, nor imposes unique requirements on local governments, because the Water Board imposed its condition on both governmental and private actors. The trial court later found similarly after the City sought review of the Commission’s decision.

On the City’s appeal, we reverse. For reasons we will cover below, we conclude that the Water Board’s new condition requires local governments to support “a new program” within the meaning of article XIII B, section 6. But because the City’s showing that the Water Board’s permit condition establishes a “new program” is a necessary, though not sufficient, showing for reimbursement, we stop short of holding that the state must reimburse the City for the costs of compliance. We leave it to the Commission to consider in the first instance whether reimbursement is appropriate on these facts following remand.

BACKGROUND

In 2015, the Legislature passed a bill, Senate Bill No. 334 (2015-2016 Reg. Sess.), intended in part to remediate lead in school water supplies. The bill required the State Department of Public Health to conduct a sample survey “to determine the likely extent and distribution of lead exposure to children from . . . drinking water at the tap,” and, to the extent possible, to perform testing “to validate survey results.” The bill further, among other things, required school districts to “close access” to “drinking water sources with drinking water that d[id] not meet [federal] drinking water standards for lead or any other contaminant” and, under certain circumstances, to also supply “alternative drinking water sources.” But the Governor vetoed the bill, stating that it would “create[] a state mandate of uncertain but possibly very large magnitude.” The Governor, however, expressed support for the bill’s goals and “direct[ed] the State Water Resources Control Board to work with school districts and local public water systems to incorporate water quality testing in schools as part of their lead and copper rule.” (Governor’s veto message to Sen. Bill No. 334 (Oct. 9, 2015), available at <https://www.ca.gov/archive/gov39/wp-content/uploads/2017/09/SB_334_Veto_Message.pdf> [as of Apr. 26, 2022].)

A little over a year later, in early 2017, the Water Board did as the Governor directed—it required water quality testing in schools. Relying on its permitting authority over operators of “public water systems,” the Water Board amended the permits of over 1,100 of these operators that serve K-12 schools. (See Health & Saf. Code, § 116525 [discussing Water Board’s permitting authority]; see also id., § 116275, subd. (h) [“ ‘Public water system’ means a system for the provision of water for human consumption through pipes or other constructed conveyances that has 15 or more service connections or regularly serves at least 25 individuals daily at least 60 days out of the year.”].) As amended, these permits require each of these operators, on the request of any K-12 school it serves, to sample and test drinking water at that school for the presence of lead. In particular, after a school requests assistance with lead sampling, each operator must meet with school officials “to develop a sampling plan”; maintain records of the sampling plan and certain other information; collect one to five samples at the school “from regularly used drinking fountains, cafeteria/food preparation areas, or reusable bottle water filling stations”; submit the samples “to an ELAP certified laboratory for analysis of lead”; provide a copy of the results to the school; discuss the test results with the school; collect additional samples if initial results show high levels of lead; and “provide information regarding potential corrective actions if a school has confirmed lead levels” above a certain amount. Per the amended permits, operators are responsible for the costs associated with these requirements.

The City is one of the operators subject to the Water Board’s new requirements. A year after the Water Board’s changes, the City petitioned the Commission to find that the Water Board’s requirements constitute a state-mandated program under article XIII B, section 6 of the California Constitution—a provision that serves “ ‘to preclude the state from shifting financial responsibility for carrying out governmental functions to local agencies.’ [Citation.]” (California School Boards Assn. v. State of California (2019) 8 Cal.5th 713, 724; see also Gov. Code, § 17551, subd. (a) [“The commission, pursuant to the provisions of this chapter, shall hear and decide upon a claim by a local agency or school district that the local agency or school district is entitled to be reimbursed by the state for costs mandated by the state as required by Section 6 of Article XIII B of the California Constitution.”].)

The City reasoned that the Water Board’s requirements fell under article XIII B, section 6 for several reasons. It began by noting that, under California Supreme Court precedent, two types of state-mandated programs require reimbursement: “ ‘[1] programs that carry out the governmental function of providing services to the public, [and] [2] laws which, to implement a state policy, impose unique requirements on local governments and do not apply generally to all residents and entities in the state.’ ” It then asserted that the Water Board’s new condition should be regarded as one of these two types of programs for three distinct reasons. First, focusing on “programs that carry out the governmental function of providing services to the public,” it contended the Water Board’s condition qualifies as such a program for two reasons: one, because water service is a “governmental function that provides services to the public”; and two, because “[t]he lead testing program in the Permit Amendment carries out a second governmental function of ensuring safe schools.” Next, focusing on laws that “impose unique requirements on local governments,” it contended the Water Board’s condition is such a law because it “imposes a unique requirement on the City that does not apply to all residents and entities in the state.”

The Commission denied the City’s petition. Starting with the City’s last argument, it found the Water Board’s permit changes do not impose unique requirements on local governments. It reasoned that “a law that applies to a class of persons or entities whose members are both governmental and private cannot be said to apply uniquely to government,” and, in this case, the Water Board imposed its changes on 1,128 operators of public water systems, “more than a third of which were issued to privately owned [public water systems].” Turning next to the City’s remaining arguments, the Commission found the Water Board’s changes “do[] not impose a program that carries out a governmental function of providing services to the public.” It first found that “water service is not a governmental function of providing services to the public because providing water service is not required by state or federal law and is not a core function of government.” It then found that, although ensuring safe schools is a governmental function, a public water system “has no duty to ensure safe schools, as alleged by the [City]; the schools maintain and exercise that duty with their request for lead testing.”

The City afterward challenged the Commission’s decision in a petition for writ of administrative mandamus, which named the Commission as the respondent and the Water Board and the Department of Finance as the real parties in interest. Although the City’s petition is not part of the record, the City appears to have raised the same three arguments it raised before the Commission. But the trial court, for reasons similar to the Commission’s own, rejected the City’s arguments. It later entered judgment against the City.

The City timely appealed.

DISCUSSION

Enacted by initiative in 1979, article XIII B, section 6 of the California Constitution requires the state to “provide a subvention of funds to reimburse” local agencies when it mandates their assistance in implementing a state program. It states: “Whenever the Legislature or any state agency mandates a new program or higher level of service on any local government, the State shall provide a subvention of funds to reimburse that local government for the costs of the program or increased level of service,” with certain exceptions not relevant here. (Art. XIII B, § 6, subd. (a).) “Section 6 was intended to preclude the state from shifting to local agencies the financial responsibility for providing public services in view of the[] restrictions on the taxing and spending power of the local entities.” (Lucia Mar Unified School Dist. v. Honig (1988) 44 Cal.3d 830, 835-836 (Lucia Mar).)

Our focus, in this case is on the meaning of the phrase “new program or higher level of service” as used in article XIII B, section 6. Our Supreme Court first interpreted this language several decades ago in County of Los Angeles v. State of California (1987) 43 Cal.3d 46 (County of Los Angeles). It explained that the phrase covers two types of state laws—those that establish a “new program” and those that require a “higher level of service” for an existing program. (Id. at p. 56.) The court then, turning to the meaning of the term “program,” “conclude[d] that the drafters and the electorate had in mind the commonly understood meanings of the term—programs that carry out the governmental function of providing services to the public, or laws which, to implement a state policy, impose unique requirements on local governments and do not apply generally to all residents and entities in the state.” (Ibid.; see also San Diego Unified School Dist. v. Commission on State Mandates (2004) 33 Cal.4th 859, 874 (San Diego Unified).)

In this appeal, as in the trial court, the City contends the Water Board’s new permit condition requires establishment of a new or enhanced “program” under both tests described in County of Los Angeles. Starting with the first test concerning “programs that carry out the governmental function of providing services to the public,” it contends the trial court should have found this test satisfied for two distinct reasons: first, “water service is a government function”; and second, testing for lead at schools is a “government function of ensuring safe schools.” Turning next to the second test concerning laws that “impose unique requirements on local governments,” the City contends the trial court also should have found this test satisfied because “water service is overwhelmingly engaged in by public agencies,” with “81% of Californians get[ting] their water service from public entities.”

1. The County of Los Angeles court’s first test for the term “program”

We start with the City’s contention that “water service is a government function” and thus satisfies the County of Los Angeles court’s first test for the term “program.”

Since the County of Los Angeles court first defined the term “program” over three decades ago, several courts have considered whether a new state law “carr[ies] out the governmental function of providing services to the public.” (County of Los Angeles, supra, 43 Cal.3d at p. 56.) Considering these cases, we understand this test to require two inquiries. First, does the regulated conduct (here, the provision of water to schools) constitute a “governmental function”? And second, does the newly imposed requirement (here, lead testing of water at schools) provide a service to the public? (See San Diego Unified, supra, 33 Cal.4th at p. 870 [law requiring public schools to suspend students in certain circumstances carries out the governmental function of providing services to the public because “[p]roviding public schooling clearly constitutes a governmental function, and enhancing the safety of those who attend such schools constitutes a service to the public”].)[1]

All parties, in this case, focus on the first question—that is, whether the provision of water constitutes a “governmental function.” The City asserts it is. It principally supports its argument with several cases that have described water service as an important governmental function, though not in the context of article XIII B, section 6. It first cites the Supreme Court’s decision in Provident Inst. for Sav. v. City of Jersey City (1885) 113 U.S. 506. The court there considered whether a city’s property lien for unpaid water bills could have priority over a mortgage holder’s later liens. (Id. at pp. 511-516.) In considering the question, the court in dicta stated: “The providing [of] a sufficient water supply for the inhabitants of a great and growing city is one of the highest functions of municipal government.” (Id. at p. 516.) The City, as another example, also cites the California Supreme Court’s decision in Wilde v. City of Dunsmuir (2020) 9 Cal.5th 1105. The court there considered whether “measures setting municipal water rates” are exempt from the voters’ referendum power. (Id. at p. 1111.) It ultimately found they are, reasoning “that charges used to fund a city’s provision of water, like other utility fees used to fund essential government services, are exempt from referendum.” (Id. at p. 1124.) Based on these and similar cases, the City asserts that the provision of water is a “governmental function.”

The Commission, the Water Board, and the Department of Finance, on the other hand, argue otherwise. They first characterize the City’s offered cases as irrelevant because none concerned article XIII B, section 6. They then argue that the relevant consideration is not whether the provision of water is an important governmental function when the government provides it, but instead whether the provision of water is a “peculiarly governmental function.” And focusing on this latter question, they contend the provision of water cannot be regarded as a peculiarly governmental function for three principal reasons. First, “the California Constitution permits, but does not require, local governments to become water providers.” Second, “a significant proportion of water providers in the state are private.” And third, unlike traditional governmental functions, “water service generally is provided only to paying customers, not the public at large.”

We agree with all the parties in some respects. To start, we agree with the Commission, the Water Board, and the Department of Finance that the relevant inquiry focuses on functions peculiar to government. The general test for our purposes again, is whether the Water Board’s new permit condition “carr[ies] out the governmental function of providing services to the public.” (County of Los Angeles, supra, 43 Cal.3d at p. 56.) But when the County of Los Angeles court referred to a “governmental function,” it did not mean any function that a governmental body happens to perform. It instead meant a function that is “peculiar to government.” As the court explained, “the intent underlying section 6 was to require reimbursement to local agencies for the costs involved in carrying out functions peculiar to government, not for expenses incurred by local agencies as an incidental impact of laws that apply generally to all state residents and entities.” (Id. at pp. 56-57.)

But although we agree with the Commission, the Water Board, and the Department of Finance in this respect, we ultimately find that the provision of water is peculiar to government. The phrase “peculiar to” means “exclusively or (formerly) particularly associated with, characteristic of, or belonging to.” (Oxford English Dict. Online (3d ed. 2015) <https://www.oed.com/view/Entry/139494?redirectedFrom=peculiar+to#eid31421762> [as of Apr. 26, 2022]; see also Webster’s 3d New Internat. Dict. (1993) p. 1663, col. 2 [“peculiar” means, among other things, “belonging exclusively or esp. to a person or group”].) The Commission, the Water Board, and the Department of Finance appear to favor the first offering in this definition, “exclusively,” arguing that “the provision of drinking water” is not peculiar to government because it “can be fulfilled by a private person or corporation.” But that reading cannot be right. Our Supreme Court, for example, has found that “the education of handicapped children is clearly a governmental function providing a service to the public,” even though the government is not the exclusive educator of these children. (Lucia Mar, supra, 44 Cal.3d at p. 835.) The court in Carmel Valley Fire Protection Dist. v. State of California (1987) 190 Cal.App.3d 521 (Carmel Valley), in similar fashion, concluded that “fire protection is a peculiarly governmental function,” even though “there are private sector fire fighters.” (Id. at p. 537.) And the court in Department of Finance v. Commission on State Mandates (2021) 59 Cal.App.5th 546 (Department of Finance), as a last example, found that “the installation and maintenance of trash receptacles at transit stops” is a “governmental function that provides services to the public,” even though it acknowledged that “collecting trash at transit stops” is “typically,” but not exclusively, “within the purview of government agencies.” (Id. at pp. 558, 560.)

All these cases, and others too, demonstrate that a function can be “peculiar to” government even if it is not exclusive to government. (See, e.g., Long Beach Unified Sch. Dist. v. State of California (1990) 225 Cal.App.3d 155, 172 [“although numerous private schools exist, education in our society is considered to be a peculiarly governmental function”].) We are left, then, to consider the balance of the definition of “peculiar to,” which again, is defined to mean “particularly associated with, characteristic of, or belonging to.” (Oxford English Dict. Online (3d ed. 2015) <https://www.oed.com/view/Entry/139494?redirectedFrom=peculiar+to#eid31421762> [as of Apr. 26, 2022].) And considering the remainder of this definition, we find that water service is “peculiar to” local governments in that it is “particularly associated with” local governments. The Water Board’s own data shows this to be true today, and over a century’s worth of case law and government publications indicate that the same has been true for many decades.

Before turning to the Water Board’s current data, we start with historic practice. The history of municipal authorities in California supplying their residents with water is old—far older than the state itself. Municipal authorities in Los Angeles, for example, began doing so “as early as the year 1781” when “the Pueblo of Los Angeles was established by the Mexican Government.” (Feliz v. City of Los Angeles (1881) 58 Cal. 73, 78-79.) Municipal authorities in San Diego, similarly, began supplying residents with water as early as 1834 when the Mexican government established the Pueblo of San Diego. (City of San Diego v. Cuyamaca Water Co. (1930) 209 Cal. 105, 111, 115 [“ ‘during the entire term of its existence,’ ” the “ ‘Pueblo of San Diego and the inhabitants thereof . . . enjoyed, asserted and exercised a preference or prior right to the use of the waters of [the] San Diego River for the benefit of said pueblo and the inhabitants thereof’ ”].) And many more local governments throughout California similarly began providing water to their residents many decades ago. (See, e.g., City of Lodi v. East Bay Municipal Utility Dist. (1936) 7 Cal.2d 316, 322 [East Bay Municipal Utility District has supplied water to residents in various cities in Alameda and Contra Costa Counties since 1923]; id. at p. 322 [the City of Lodi has operated a municipal water system since at least 1931]; City and County of San Francisco v. Alameda County (1936) 5 Cal.2d 243, 244 [the City and County of San Francisco has supplied its residents with water since 1930, when it purchased the rights and property of the private water company that had previously supplied water].)

Local governments, moreover, have continued to play a dominant role in supplying water since these early days in California history. In the years shortly before the enactment of article XIII B, section 6, for instance, residents in nearly all of California’s largest cities received their water from municipal authorities. According to a 1962 water survey from the United States Department of the Interior, municipal authorities supplied water to all but one of California’s largest cities in that year. That included Los Angeles, San Diego, Fresno, Long Beach, Sacramento, Oakland, and San Francisco. (U.S. Dept. of Interior, Public Water Supplies of the 100 Largest Cities in the United States (1964), pp. 99-115, available at <https://pubs.usgs.gov/wsp/1812/report.pdf> [as of Apr. 26, 2022].) San Jose was the lone exception among the state’s largest cities. (Id. at p. 117.)

Still today, Californians typically receive their water from municipal authorities. Although, according to the Water Board’s data, most water systems in California are privately owned—5,313 of 6,970, or over 76 percent—these water systems serve only a small portion of California’s total population—under 19 percent.[2] An overwhelming majority of Californians, on the other hand, around 80 percent, receive their water from publicly owned water systems. And although the Water Board evidently lacks data showing the percentage of K-12 schools that receive water from publicly and privately owned water systems, we have no reasons to suspect a lower percentage are receiving water from municipal authorities in this context. In fact, if anything, we have only reason to suspect a higher percentage in the school setting. After all, if municipal authorities supply water to around 80 percent of Californians when they operate less than 24 percent of all water systems, we would expect them to supply water to an even higher percentage in the school setting where they operate over 60 percent of the relevant water systems.

Considering these facts, we conclude that the Water Board’s new condition establishes a “new program” within the meaning of article XIII B, section 6. The condition is “new,” as all parties acknowledge, in that prior law did not require operators of public water systems to perform lead testing at schools. And it is a “program” in that it “carr[ies] out the governmental function of providing services to the public.” (County of Los Angeles, supra, 43 Cal.3d at p. 56.) Again, the provision of drinking water to schools is a peculiarly governmental function and the mandated testing of this water for lead is plainly a service to the public. (See Carmel Valley, supra, 190 Cal.App.3d at p. 537 [finding fire protection peculiar to government because “the overwhelming number of fire fighters discharge a classical governmental function,” even though some “private sector fire fighters” also exist]; cf. San Diego Unified, supra, 33 Cal.4th at p. 879 [“Providing public schooling clearly constitutes a governmental function, and enhancing the safety of those who attend such schools constitutes a service to the public.”].)

Although the Commission, the Water Board, and the Department of Finance challenge this conclusion for several reasons, we find none of their arguments persuasive. First, as noted above, they argue that the provision of water is not peculiar to government, because “the California Constitution permits, but does not require, local governments to become water providers.” Their premise is true—our Constitution does not require local governments to become water providers. (Cal. Const., art. XI, § 9.) But our Constitution also does not require local governments to provide firefighting services or trash services. And even so, courts have found both these services to be governmental functions. (Department of Finance, supra, 59 Cal.App.5th at p. 558 [trash service is a “governmental function”]; Carmel Valley, supra, 190 Cal.App.3d at p. 537 [“fire protection is a peculiarly governmental function”].) We see no reason to find differently here.

Second, the Commission, the Water Board, and the Department of Finance also assert that the provision of water is not peculiar to government, because “a significant proportion of water providers in the state are private.” Again, the premise is true—a significant proportion of water systems in California are privately owned. But as discussed, these water systems serve only a small portion of California’s total population, under 19 percent, while publicly owned water systems serve an overwhelming majority of Californians, around 80 percent. We find the latter detail most relevant in considering whether water service is peculiar to (or particularly associated with) government. (See Carmel Valley, supra, 190 Cal.App.3d at p. 537 [finding fire protection peculiar to government because “the overwhelming number of fire fighters discharge a classical governmental function,” even though some “private sector fire fighters” also exist].)

Third, the Commission, the Water Board, and the Department of Finance assert that the provision of water is not peculiar to government, because “water service generally is provided only to paying customers, not the public at large.” But even if we accept their premise, their argument still falls short. Trash service, for instance, is generally provided only to paying customers. (See, e.g., Pub. Resources Code, § 40059, subd. (a)(1) [“each county, city, district, or other local governmental agency may determine” “[a]spects of solid waste handling which are of local concern, including, but not limited to, . . . charges and fees”].) But even so, trash service is still regarded as a “governmental function” (Department of Finance, supra, 59 Cal.App.5th at p. 558), and, once again, we see no reason to classify water service any differently.

Fourth, the Water Board and the Department of Finance contend the provision of water is not peculiar to government, because local governments must compensate private water providers when they encroach on these providers’ territories. In their telling, “f water service were a peculiarly government function, surely the Legislature would not have created this disincentive to local governments to expand their water services.” We find differently. It is true that, under California law, a political subdivision that extends its water service “to any service area of a private utility with the same type of service” has committed a taking of the property “to the extent that the private utility is injured. . . .” (Pub. Util. Code, § 1504.) But none of this shows that water service is not a function “peculiar” to government. It only shows that water service is not a function exclusive to government, with some private entities providing water service, and that the Legislature thought to protect the property rights of these private entities.

Lastly, the Commission asserts that even if the provision of water is peculiar to government, it is nonetheless not a “governmental function” because it is not “essential to local governments.” But nothing in case law imposes this additional requirement. And were we nonetheless to accept the Commission’s claim, we would be forced to question much of the existing case law on article XIII B, section 6. Trash service, for example, has been regarded as a governmental function. ([i]Department of Finance, supra, 59 Cal.App.5th at p. 558.) But it is certainly not “essential to local governments.” Firefighting service also has been regarded as a governmental function. (Carmel Valley, supra, 190 Cal.App.3d at p. 537.) But that too is not truly “essential to local governments.” Many cities, indeed, rely on private fire departments, and yet these cities endure. (See Ehart v. Odessa Fire Co. (D. Del., Feb. 2, 2005, No. Civ.02-1618-SLR) 2005 WL 348311 at p. *4 [“outside the City of Wilmington, fire protection services in Delaware are provided by private volunteer fire companies”].) Rather than upend case precedent, we decline to endorse the Commission’s new “essential to local governments” standard.

2. The County of Los Angeles court’s second test for the term “program”

We turn next to the City’s contention that the Water Board’s new permit condition imposes “unique requirements” on local governments that do not apply generally to all persons in the state—which ties to the County of Los Angeles court’s second test for the term “program.”

Two Courts of Appeal to date have found that a state law imposes “unique requirements” on local governments when it imposes its requirements in a field “overwhelmingly” or “typically” served by local governments. The court in Carmel Valley, supra, 190 Cal.App.3d 521 was the first. It considered an executive order requiring firefighters to be provided with protective clothing and safety equipment. (Id. at p. 530.) Applying the County of Los Angeles court’s second test for the term “program,” the court held that “[t]he requirements imposed on local governments are . . . unique because fire fighting is overwhelmingly engaged in by local agencies,” even though “there are private sector fire fighters.” (Carmel Valley at pp. 537-538.) It added that “the orders do not apply generally to all residents and entities in the State but only to those involved in fire fighting.” (Id. at p. 538.)

The court in Department of Finance, supra, 59 Cal.App.5th 546 found similarly in a more recent decision. The court there considered a regional water quality control board permit that required certain parties to install and maintain trash receptacles at transit stops, among other things. (Id. at p. 552.) Applying the County of Los Angeles court’s second test, the court found the “challenged requirements are unique to local governments in two ways.” (Department of Finance, at p. 559.) Relevant here, it found the challenged requirements, including the requirement to “collect[] trash at transit stops,” are unique to local governments because they “are, like the firefighting services in Carmel Valley, typically within the purview of government agencies.” (Id. at p. 560.)

Both these cases favor a finding that the Water Board’s new permit condition requires local governments to support a “program” under the second test described in County of Los Angeles. The Water Board’s permit condition, again, only applies to operators of public water systems that supply water to K-12 schools. And the provision of water—both to the public generally and to K-12 schools specifically—is not only “typically within the purview of government agencies” (Department of Finance, supra, 59 Cal.App.5th at p. 560); it is “overwhelmingly engaged in by local agencies” (Carmel Valley, supra, 190 Cal.App.3d at p. 538). Again, as discussed in more detail above, an overwhelming majority of Californians, around 80 percent, receive their water from publicly owned water systems.

Considering these facts, were we to follow the reasoning in Carmel Valley and Department of Finance, we would conclude that the Water Board’s new condition establishes a “new program” under the second test described in County of Los Angeles. The condition is “new,” again, in that prior law did not require operators of public water systems to perform lead testing at schools. And it is a “program” in the sense that the courts in Carmel Valley and Department of Finance construed the term—namely, borrowing language from the Carmel Valley court, it (1) imposes “unique” requirements on local governments “because [water service] is overwhelmingly engaged in by local agencies” and (2) “do[es] not apply generally to all persons in the State but only to those involved in [water service].” (Carmel Valley, supra, 190 Cal.App.3d at p. 538 [state mandate for fire fighters required a “new program” in that it (1) imposed “unique” requirements on local governments “because fire fighting is overwhelmingly engaged in by local agencies” and (2) “d[id] not apply generally to all residents and entities in the State but only to those involved in fire fighting”]; see also Department of Finance, supra, 59 Cal.App.5th at p. 560 [state mandate for trash collection imposed “unique” requirements on local governments because trash collection is “typically within the purview of government agencies”].)

We further find this true despite the Water Board’s, the Department of Finance’s, and the Commission’s efforts to distinguish Carmel Valley. The Water Board and the Department of Finance first try to distinguish the case on the ground that Carmel Valley involved a rule that “was generally imposed only on public fire departments and not on ‘private fire brigades.’ ” They cite a footnote in Carmel Valley to support their claim. But all that footnote said was this: The “County suggests” that private fire brigades “customarily” consist of only part-time individuals, which, if true, would exclude these part-time individuals from the rule considered in the case. (Carmel Valley, supra, 190 Cal.App.3d at p. 537, fn. 11.) But none of this shows, as the Water Board and the Department of Finance assert, that the rule in Carmel Valley “was generally imposed only on public fire departments and not on ‘private fire brigades.’ ” It only shows that the county in that case “suggest[ed]” an argument along those lines, which the court, for whatever reason, declined to fully address.

The Water Board and the Department of Finance, this time joined by the Commission, also argue that Carmel Valley is distinguishable because most water systems in California are privately owned, including many of those subject to the Water Board’s new condition. But the relevant consideration under Carmel Valley is not simply that many private entities provide water service, including a substantial minority of those that are subject to the Water Board’s new requirements. It is instead, as discussed, that local governments “overwhelmingly” provide water service in California. (See Carmel Valley, supra, 190 Cal.App.3d at p. 538; see also Department of Finance, supra, 59 Cal.App.5th at p. 560.) Again, according to the Water Board’s own data, local governments supply an overwhelming majority of Californians, around 80 percent, with their water. And these local governments, as all parties appear to accept, will overwhelmingly shoulder the costs of complying with the Water Board’s new requirements. Considering these facts, we find the Commission’s, the Water Board’s, and the Department of Finance’s efforts to distinguish Carmel Valley fall short.

But that said, we stop short of applying the reasoning of Carmel Valley and Department of Finance to our facts. Both courts, again, found that a state law imposes “unique requirements” on local governments when it imposes its requirements in a field “overwhelmingly” or “typically” served by local governments. But that conclusion does not square with a literal reading of the term “unique,” which, at least traditionally, has meant “being the only one” or “being without a like or equal.” (Webster’s 3d New Internat. Dict. (1993) p. 2550, col. 2; see also Solis v. Jasmine Hall Care Homes, Inc. (9th Cir. 2010) 610 F.3d 541, 545 (Solis) [stating that “ ‘unique’ ” means “ ‘being the only one of its kind’ ”].) Applying this narrow definition, no requirement could be characterized as “unique” to local governments so long as a single private counterpart existed. And so, if that definition applied here, we could not say that the Water Board’s requirement is truly “unique” to local government.

We acknowledge, however, that courts have often used the term “unique” to mean something other than “unique” in the traditional sense. In Gordon v. Landau (1958) 49 Cal.2d 690, for example, our Supreme Court discussed a business that had “unique” customers because “they are mostly persons in the low-income brackets.” (Id. at p. 691.) But these customers were of course not “unique” in the sense that no other business had customers consisting of “mostly persons in the low-income brackets”; they were instead unusual customers for the typical business. In People v. Archerd (1970) 3 Cal.3d 615, 620, disapproved of on another ground in People v. Nelson (2008) 43 Cal.4th 1242, similarly, the court discussed several murders that were committed with a “unique [weapon], insulin.” But the murders were surely not “unique” in the sense that no other murders had ever been committed in a similar fashion; they were instead highly unusual.

All these cases, and many more still, have used the term “unique” in a manner that exceeded its traditional definition. (See, e.g., Solis, supra, 610 F.3d at p. 545 [finding the Supreme Court used the term “unique” to “mean[] something like ‘exceedingly rare’ rather than literally ‘unique’ ”].) And although some may believe these cases used the term in an inappropriate manner—a manner that equates “unique” with uncommon or unusual rather than one of a kind—it is nonetheless a usage that is “in extended use.” (Oxford English Dict. Online (3d ed. 2015) <https://www.oed.com/view/Entry/214712?redirectedFrom=unique#eid> [as of Apr. 26, 2022] [noting that use of the term “unique” to mean “uncommon, unusual, remarkable” is “in extended use”]; see also Merriam-Webster’s Collegiate Dict. (11th ed. 2006) pp. 1368-1369 [noting that “unique” traditionally meant “being the only one” or “being without a like or equal,” but “[w]ith popular use came a broadening of application” that now includes unusual].) Considering this common use of the term, perhaps the courts in Carmel Valley and Department of Finance appropriately construed the term “unique,” as used in County of Los Angeles, in a similarly broad fashion. But because we find the Water Board’s permit condition establishes a new “program” under the first test described in County of Los Angeles, we need not resolve whether it also establishes a new “program” under the court’s second (“unique requirements”) test. Nor, for similar reasons, need we address the City’s alternative claim that testing for lead at schools is a “government function of ensuring safe schools.”

3. Remedy

Although we conclude that the Water Board’s new testing requirements establish “a new program” within the meaning article XIII B, section 6, none of this is to say that the City is necessarily entitled to reimbursement for the cost of compliance. The City, for instance, would not be entitled to reimbursement if it has authority to levy charges, fees, or assessments sufficient to cover the costs of complying with the Water Board’s new condition—a topic the Commission never considered in the administrative proceedings below. (See, e.g., County of Fresno v. State of California (1991) 53 Cal.3d 482, 487 [no reimbursement required if “the local government ‘has the authority to levy service charges, fees, or assessments sufficient to pay for the mandated program or increased level of service’ ”].) We leave it to the Commission to consider in the first instance whether reimbursement is appropriate under these circumstances. (See Lucia Mar, supra, 44 Cal.3d at p. 837 [finding remand to the Commission appropriate under similar circumstances; the Commission is “charged . . . with the duty to decide in the first instance whether a local agency is entitled to reimbursement under section 6 of article XIIIB”].)

DISPOSITION

The trial court’s judgment is reversed, and the court is directed to remand the matter to the Commission for further proceedings consistent with this opinion. The City is entitled to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

\s\ ,

BLEASE, Acting P. J.

We concur:

\s\ ,

DUARTE, J.

\s\ ,

KRAUSE, J.

[1] Although we find this approach tracks the California Supreme Court’s approach in San Diego Unified, we do not address whether this approach would be appropriate in all cases.

[2] According to the Water Board’s data, in 2018, 33,807,606 Californians received water from publicly owned water systems, 7,752,106 distinct Californians received water from privately owned water systems, and an unknown number of other Californians received water from private wells. For purposes here, we accept this data. We note, however, one peculiar detail with these figures: Per this data, and ignoring those served by private wells, California had a total population of 41,559,712 in 2018. But if that is true, then the Water Board’s count of the state’s population is around 2,000,000 higher than the Department of Finance’s and the United States Census Bureau’s own estimates. (Dept. of Finance, California Population Estimates, available at <https://dof.ca.gov/Forecasting/Demographics/Estimates/e-7/-1900-2021> [as of Apr. 26, 2022] [39,476,000 in 2018 and 39,542,000 in 2020]; U.S. Census Bureau, California: 2020 Census, available at <https://www.census.gov/library/stories/state-by-state/california-population-change-between-census-decade.html> [as of Apr. 26, 2022] [39,538,223 in 2020].) Because none of the parties discuss this discrepancy, we decline to address it here.