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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

DANIEL E. LUNGREN
 

Attorney General
 

OPINION : 

: No. 94-902 

of : 

: January 27, 1995 

DANIEL E. LUNGREN : 

Attorney General : 

:
 

ANTHONY S. Da VIGO :
 

Deputy Attorney General :
 

: 

THE HONORABLE DON ROGERS, MEMBER OF THE CALIFORNIA 

STATE SENATE, has requested an opinion on the following questions: 

1. Is a California water district generally required to comply with the 

building and zoning ordinances of the county or city in which it is located? 

2. Is a California water district exempt from any building or zoning 

ordinances of the county or city in which it is located? 

3. Is a California water district exempt from enforcement actions 

undertaken by a county with respect to the California Safe Drinking Water Act? 

CONCLUSIONS 

1. A California water district is generally required to comply with the 

building and zoning ordinances of the county or city in which it is located. 

2. A California water district is exempt from compliance with those 

building and zoning ordinances of the county or city in which it is located which regulate the 

location or construction of facilities directly and immediately used for the production, 

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generation, storage, or transmission of water, and is conditionally exempt from county or city 

zoning ordinances with respect to facilities related and integral to the proper operation of 

particular water storage or transmission functions of the district. 

3. A California water district is not exempt from enforcement actions 

undertaken by a county with respect to the California Safe Drinking Water Act. 

ANALYSIS 

The principal statutory provisions governing whether a local public agency must 

comply with the building and zoning ordinances of the county or city in which it is located are 

contained in Government Code sections 53091 and 53096. 1 Section 53091 provides in 

relevant part as follows: 

"Each local agency shall comply with all applicable building ordinances 

and zoning ordinances of the county or city in which the territory of the local 

agency is situated. . . . 

". . . Building ordinances of a county or city shall not apply to the 

location or construction of facilities for the production, generation, storage, or 

transmission of water . . . by a local agency. 

"Zoning ordinances of a county or city shall not apply to the location or 

construction of facilities for the production, generation, storage, or transmission 

of water . . . ." 

Section 53096, subdivision (a), provides in part: 

"Notwithstanding any other provisions of this article, the governing board 

of a local agency, by vote of four-fifths of its members, may render a city or 

county zoning ordinance inapplicable to a proposed use of property if the local 

agency at a noticed public hearing determines by resolution that there is no 

feasible alternative to its proposal, except when the proposed use of the property 

by such local agency is for facilities not related to storage or transmission of 

water . . . including, but not limited to, warehouses, administrative buildings or 

automotive storage and repair buildings. . . ." 

1

Prior to footnote 2, undesignated section references herein are to the Government Code. 

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1. California Water Districts 

The first inquiry is whether a California water district is a "local agency" within 

the meaning of sections 53091 and 53096 set forth above. If so, it would generally be subject 

to the building and zoning ordinances of the county or city in which it is located as provided by 

the two statutes. 

The term "local agency" is defined in section 53090, subdivision (a), as follows: 

"`Local agency' means an agency of the state for the local performance of 

governmental or proprietary function within limited boundaries. `Local agency' 

does not include the state, a city, a county, a rapid transit district whose board of 

directors is appointed by public bodies or officers or elected from election 

districts within the area comprising the district, or a district organized pursuant 

to Part 3 (commencing with Section 27000) of Division 16 of the Streets and 

Highways Code." 

If a California water district is included within term "the state," then it would not be a "local 

agency" within the purview of sections 53091 and 53096, and traditional principles governing 

the local regulation of state activities would apply. (See, e.g., Hall v. City of Taft (1956) 47 

Cal.2d 177, 183 ["When . . . [the state] engages in such sovereign activities as . . . construction 

and maintenance . . . it is not subject to local regulations unless the Constitution says it is or the 

Legislature has consented to such regulation"]; see also Town of Atherton v. Superior Court 

(1958) 159 Cal.App.2d 417.) If, on the contrary, a California water district is a "local agency," 

then the provisions and exemptions expressly provided in sections 53091 and 53096 would be 

applicable according to their terms. 

Section 53090 excludes "the state" and, by implication, statewide administrative 

agencies of the state. In Regents of University of California v. City of Santa Monica (1978) 77 

Cal.App.3d 130, it was held that the University of California was exempt from local regulation 

as a "statewide administrative agency." (Id., at pp. 135, 137.) On the other hand, school 

districts, which have been described as "agencies of the state for the local operation of the 

state school system" (Hall v. City of Taft, supra, 47 Cal.2d at 181; Town of Atherton v. Superior 

Court, supra, 159 Cal.App.2d at 421), and thus exempt under traditional principles of law from 

local regulation, are now subject to the statutory scheme in question relating to "local agencies." 

('' 53090-53095; City of Santa Cruz v. Santa Cruz City School Board of Education (1989) 

210 Cal.App.3d 1, 6-7; City of Santa Clara v. Santa Clara Unified School District (1971) 22 

Cal.App.3d 152, 156-158.) 

Hence, the phrase "an agency of the state for . . . local [purposes]" includes both 

local public agencies (City of Lafayette v. East Bay Municipal Utilities District (1993) 16 

Cal.App.4th 1005, 1013 [municipal utility district]; Kehoe v. City of Berkeley (1977) 67 

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Cal.App.3d 666, 673 [redevelopment agency]; 55 Ops.Cal.Atty.Gen. 375 (1992) [local hospital 

district]) and state agencies of limited territorial jurisdiction (City of Santa Cruz v. Santa Cruz 

City School Board of Education, supra, 210 Cal.App.3d 1 [school district]; City of Santa Clara 

v. Santa Clara Unified School District, supra, 22 Cal.App.3d 152 [school district]). 

A California water district performs its functions within a limited "area of land 

which is capable of using water beneficially for irrigation, domestic, industrial or municipal 

purposes and which can be serviced from common sources of supply and by the same system of 

works." (Wat. Code, ' 34153.) The board of supervisors of the county in which the greatest 

portion of the area of the land is situated at the time of the filing of the petition for formation of 

the district determines the boundaries of the proposed district. (Wat. Code, '' 34015, 34154, 

34303-34305.) A district is formed and officers elected pursuant to an election held within the 

proposed district. (Wat. Code, '' 34400, 34423.) Assessments to pay the costs of water 

systems not defrayed by water sales are levied against the land within the district. (Wat. Code, 

'' 36570-36574; 64 Ops.Cal.Atty.Gen. 790, 791 (1981).) 

Hence, a California water district is not a statewide administrative agency. 

Whether it may be properly characterized as an agency of the state for the local operation of a 

state activity or system, as in the case of a school district, is immaterial for purposes of this 

inquiry. In any case, it is clearly "an agency of the state for the local performance of 

governmental or proprietary function within limited boundaries." (' 53090, subd. (a).) 

In answer to the first question, therefore, it is concluded that under the terms of 

section 53091, a California water district is generally required to comply with the building and 

zoning ordinances of the county or city in which it is located. 

2. Specific Exemptions 

The second inquiry is whether a California water district, as a local agency, is 

exempt from any county or city building or zoning ordinances. While both sections 53091 and 

53096 contain specific exemptions to the application of such ordinances, to what extent do the 

exemptions apply to the activities of a California water district? 

By way of introduction, the court in City of Lafayette v. East Bay Municipal 

Utilities District, supra, 16 Cal.App.4th at 1013-1014, summarized this area of the law as 

follows: 

"Section 53091 generally requires local agencies . . . to comply with the 

building and zoning ordinances of cities and counties in which they are situated. 

(Lawler v. City of Redding (1992) 7 Cal.App.4th 778, 783; Regents of University 

of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 137; City of 

Santa Clara v. Santa Clara Unified School Dist. (1971) 22 Cal.App.3d 152, 

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158.) Section 53091 is part of a statutory scheme -- `Regulation of Local 

Agencies by Counties and Cities,' sections 53090 through 53095 (Stats. 1959, 

ch. 2110, ' 1, pp. 4907-4909) -- enacted in response to opinions which broadly 

immunized all state agencies from local regulatory control. (City of Santa Cruz 

v. Santa Cruz City School Bd. of Education (1989) 210 Cal.App.3d 1, 5; City of 

Santa Clara v. Santa Clara Unified Sch. Dist., supra, 22 Cal.App.3d at p. 157; 

Baldwin Park County Water Dist. v. County of Los Angeles (1962) 208 

Cal.App.2d 87, 95-96; 40 Ops.Cal.Atty.Gen. 243, 246 (1962). Section 53091 

evinces a legislative intent to invest in cities and counties control over zoning 

and building restrictions, thereby strengthening local planning authority. 

(Lawler v. City of Redding, supra, at p. 783; Modesto Irr. Dist. v. City of 

Modesto (1962) 210 Cal.App.2d 652, 656; 37 Ops.Cal.Atty.Gen. 89, 91 (1961).) 

"Superimposed upon the legislative grant of authority to cities and 

counties to impose zoning and building regulations upon local water districts are 

two enumerated exceptions: the first, an absolute exemption under section 

53091 for `facilities for the production, generation, storage, or transmission of 

water'; the second, a carefully conditioned, qualified exemption (' 53096), which 

the local agency must properly exercise, for facilities `related to storage or 

transmission of water.' Unless exempted, water districts must abide by local 

planning decision of cites and counties. (City of Santa Clara v. Santa Clara 

Unified Sch. Dist., supra, 22 Cal.App.3d at p. 158.) When read as a statutory 

scheme the obvious intent of the Legislature was to strike a balance between the 

value of local zoning control by cities an counties and the state interest in 

efficient storage and transmission of water. (Cf. People ex el. Cooper v. 

Rancho Santiago College (1990) 226 Cal.App.3d 1281, 1286; City of Santa 

Cruz, supra, 210 Cal.App.3d at p. 8.)" (Fns., omitted.) 

The exemptions provided in sections 53091 and 53096 are expressed in limited 

terms. In this regard, it is to be noted that exceptions to the general provisions of a statute are 

to be narrowly construed; only those circumstances which are within the words and reason of 

the exception may be included. (City of Lafayette v. East Bay Municipal Utilities District, 

supra, 16 Cal.App.4th at 1017; 70 Ops.Cal.Atty.Gen. 244, 246 (1987).) 

Specifically, the exemption provided in section 53091 applies "to the location or 

construction of facilities for the production, generation, storage, or transmission of water . . . ." 

Concerning this exemption the court in City of Lafayette v. East Bay Mun. Util. Dist., supra, 16 

Cal.App.4th 1005, observed: 

". . . We conclude that the District's EASC project, while it may be a 

`facility,' still does not fall within the absolute exemption of section 53091. A 

`facility' has been defined as `"something that promotes the ease of any action, 

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operation, transaction, or course of conduct[;] . . . something (as a hospital, 

machinery, plumbing) that is built, constructed, installed, or established to 

perform some particular function or to serve or facilitate some particular end."' 

(City of Santa Cruz, supra, 210 Cal.App.3d at p. 4, quoting from Webster's Third 

New Internat. Dict. (1981) pp. 812-813.) The EASC project is a facility for the 

storage of materials and equipment necessary for maintenance and repair of 

aqueducts, pipelines, fitter plants and reservoirs. Thus, it serves as a support 

facility; it does not actually perform the function of generating, transmitting or 

storing water. We think that the absolute exemption of section 53091 was 

intended to be limited to facilities directly and immediately used to produce, 

generate, store or transmit water. Only those indispensable facilities must be 

geographically located at the unfettered discretion of a water district -- that is, 

without the burden of city and county zoning regulations -- in order to assure the 

imperative of efficient and economical delivery of water to customers." (Id., at 

p. 1014.) 

The qualified exemption provided in section 53096 applies to those facilities which are 

"related to storage or transmission of water." This exemption was also examined by the court 

in City of Lafayette v. East Bay Municipal Utilities District, supra, 16 Cal.App.4th 1005, as 

follows: 

"We turn to the qualified exemption granted local agencies by 

section 53096 for facilities `related to storage or transmission of water.' (Italics 

added.) . . . Section 53096 offers an exemption to water districts which is 

broader in reach than that found in section 53091, extending to all proposals 

except those involving facilities not related to storage or transmission of water. 

"We think it reasonable to conclude that facilities `related to storage or 

transmission of water' within the meaning of section 53096 include only those 

which have a `connection with' and are in fact integral to the proper operation of 

particular storage and transmission functions of water districts. [Citations.] 

As we read section 53096, not all support facilities proposed by a water district 

will qualify for the statutory exemption. The statute seeks to clarify the 

definition by offering instructive examples of unrelated, nonexempt facilities: 

`warehouses, administrative buildings or automotive storage and repair 

buildings.' [Citations.] These listed ancillary structures are not directly 

connected to the unique function of water storage and transmission, and need not 

be located in close proximity to qualifying facilities. . . . By acting pursuant to 

section 53096, water districts may override city and county zoning ordinances to 

the limited extent necessary to effectuate placement of affiliated facilities upon 

which storage and transmission of water depend, while local control is retained 

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over unrelated facilities which may effectively function independently." (Id., at 

pp. 1015-1016; fns. omitted.) 

We find the analysis contained in the City of Lafayette case to be dispositive as 

to the proper interpretation and application of sections 53091 and 53096 to the operations of 

California water districts. In answer to the second question, therefore, it is concluded that a 

California water district is exempt from those county or city building and zoning ordinances 

which regulate the location or construction of facilities directly and immediately used for the 

production, generation, storage, or transmission of water, and is conditionally exempt from 

county or city zoning ordinances with respect to facilities related and integral to the proper 

operation of particular water storage or transmission functions of the district. 

3. California Safe Drinking Water Act 

The final inquiry is whether a California water district is exempt from county 

enforcement actions undertaken pursuant to the California Safe Drinking Water Act (Health & 

Saf. Code, '' 4010-4039.6; "Act.")2 We conclude that it would not be exempt. 

The Act provides for the establishment of a drinking water regulatory program 

within the Department of Health Services ("Department"). (' 4010.) A California water 

district is a "person" within the meaning of the Act. (' 4010.1, subd. (e).) No person may 

operate a public water system unless an application is first submitted to, and a permit received 

from, the Department. (' 4011.) The Department may impose such permit conditions, 

requirements for system improvements, and time schedules as it deems necessary to assure a 

reliable and adequate supply of water at all times which is pure, wholesome, potable, and does 

not endanger the health of consumers. (' 4014.) 

The Department's Office of Environmental Health Hazard Assessment is 

required to establish recommended public health levels for contaminants in drinking water. ('

4023.) In addition, the Department has adopted primary and secondary drinking water 

standards for contaminants found in drinking water. (' 4023.1; Cal. Code Regs., tit. 22, ''

64431, 64444, 64449.) The Department is further mandated to adopt regulations governing the 

monitoring, frequency, testing, and reporting of contaminants, and providing for the design, 

operation, and maintenance of public water systems, including waterworks standards and 

control of cross-connections determined necessary to obtain, treat, and distribute a reliable and 

adequate supply of healthy water. (' 4023.3, subds. (a), (c).) The Department is authorized to 

grant exemptions or variances from contaminant level requirements or from primary drinking 

water standards to a public water system. ('' 4027, 4027.6.) 

2

Undesignated section references hereafter are to the Health and Safety Code. 

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The enforcement provisions of the Act provide for public notification of any 

noncompliance (' 4028), suspension or revocation of a permit to operate a public water system 

(' 4031), the issuance of citations and imposition of civil penalties for violations of the Act's 

requirements (' 4032), compliance or preventive action orders (' 4033), and court injunctive 

relief (' 4034.) 

The Department is primarily responsible for the administration and enforcement 

of the Act. (' 4010.55.) However, section 4010.7 provides as follows: 

"(a) The department may delegate primary responsibility for the 

administration and enforcement of this chapter within a county to a local health 

officer authorized by a board of supervisors to assume these duties, by means of 

a local primacy delegation agreement if the local health officer demonstrates that 

it has the capability to meet the local primacy requirements established by the 

department pursuant to subdivision (h) of Section 4023.3. This delegation shall 

not include the regulation of community water systems serving 200 or more 

service connections. The local primacy agreement may contain terms and 

conditions that the department deems necessary to carry out this chapter. The 

local primacy agreement shall provide that, although the local primacy agency 

shall be primarily responsible for administration and enforcement of this chapter 

for the designated water systems, the department does not thereby relinquish its 

authority, but rather shall retain jurisdiction to administer and enforce this 

chapter for the designated water systems to the extent determined necessary by 

the department. 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"(f) The local primacy agency shall act for the department as the primary 

agency responsible for the administration and enforcement of this chapter for the 

specified public water systems and shall be empowered with all of the authority 

granted to the department by this chapter over those water systems." 

Subdivision (h) of section 4023.3, referred to in subdivision (a) of the preceding statute, states: 

"The department shall adopt rules and regulations it deems necessary to 

carry out the purposes of this chapter. The regulations shall include, but not be 

limited to, the following: 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"(h) Program requirements for the conduct of the public water system 

program by a local health officer under a primacy delegation from the 

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department as set forth in this chapter. The requirements shall include, but not 

be limited to, the issuance of permits, surveillance and inspections, reporting of 

monitoring and compliance data, and the taking of enforcement actions." 

In addition, section 4010.8 provides: 

"This chapter shall not apply to state small water systems except as 

provided under this section: 

"(a) The department shall adopt regulations specifying minimum 

requirements for operation of a state small water system. The requirements may 

be less stringent than the requirements for public water systems as set forth in 

this chapter. 

"(b) The minimum requirements for state small water systems adopted by 

the department pursuant to subdivision (a) shall be enforced by the local health 

officer or a local health agency designated by the local health officer. In 

counties which do not have a local health officer, the requirements shall be 

enforced by the department. Local health agencies may adopt more stringent 

requirements for state small water systems than those specified in the state 

regulations. 

"(c) The reasonable costs of the local health officer in carrying out the 

requirements of this section may be recovered through the imposition of fees on 

state small water systems by the local governing body in accordance with 

Section 510." 

A state small water system is a system for the provision of piped water to the public for human 

consumption that serves at least 5, but not more than 14, service connections and does not 

regularly serve more than an average of 25 individuals daily for more than 60 days out of the 

year. (' 4010.1, subd. (k).) 

Finally, a public water system under the jurisdiction of a local primacy agency is 

required to pay to that agency in lieu of the Department specified fees for permit applications ('

4019.15, subd. (c)), for the conduct of activities related to inspections, monitoring, surveillance, 

and water quality evaluations (' 4019.10, subd. (f)), for specified costs of enforcement ('

4019.40, subd. (a)), and for processing any requests for an exemption, variance, or waiver ('

4019.40, subd. (c)). It is assumed for purposes of this discussion that the California water 

district in question is a public water system under the jurisdiction of a county which is a local 

primacy agency. 

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The applicability of these provisions to a California water district is not governed 

by the statutes pertaining to compliance by local agencies with the building ordinances of the 

county in which it is located (Gov. Code, '' 53090-53097.5), and consequently the provisions 

therein granting exemptions are not pertinent. For purposes of the latter scheme, the term 

"`[b]uilding ordinances' means ordinances of a county or city regulating building and 

construction and removal of buildings, including ordinances relating to the matters set forth in 

Section 38660 and similar matters, and including ordinances relating to building permits and 

building inspection." (Gov. Code, ' 53090, subd. (b).) Government Code section 38660 

provides in turn: 

"The legislative body of a city may: 

"(a) Regulate the construction of and materials used in all buildings, 

chimneys, stacks, and other structures and in foundations and foundation walls. 

"(b) Regulate the construction, repair, or alteration of buildings pursuant 

to Health and Safety Code Section 15153. 

"(c) Prevent the erection and maintenance of unsafe building walls, 

chimneys, stacks, or other structures. 

"(d) Provide for the summary abatement, destruction, or removal of such 

unsafe structures and of unsightly or partially destroyed buildings. 

"(e) Regulate the construction and location of drains and sewers. 

"(f) Regulate the materials used in wiring structures for electricity and in 

piping them for a water, gas, or electric supply, and regulate the manner of such 

piping. 

"(g) Prohibit the construction of structures not conforming to such 

regulations." 

The Act, on the other hand, is an entirely distinct and comprehensive scheme 

pertaining to contamination levels in drinking water. Not only are the regulations thereunder 

not "building ordinances," they are not ordinances at all. Rather, they are regulations of the 

Department the enforcement of which is delegated to the county health officer pursuant to a 

"primacy delegation agreement," but subject to retention of jurisdiction in the Department to 

administer and enforce its regulations "to the extent determined necessary by the department." 

(' 4010.7, subd. (a).)3 The Act is required to be enforced directly by the Department for all 

3

The purity of public drinking water is not a municipal affair, but a matter of statewide 

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public water systems in any county which does not have a local health officer or which elects 

not to enforce the Act. (' 4010.9.) 

If water agencies were exempt from the terms of the Act when the enforcement 

thereof is undertaken by a county, the Act would be rendered virtually inoperative in such 

circumstances. An interpretation allowing broad exemptions in these circumstances would 

frustrate the intent of state and federal law. In this regard, the Legislature has expressly 

declared: 

"It is the intent of the Legislature to improve laws governing drinking 

water quality to improve upon the minimum requirements of the federal Safe 

Drinking Water Act Amendments of 1986, to establish primary drinking water 

standards which are at least as stringent as those established under the federal 

Safe Drinking Water Act, and to establish a program under this chapter which is 

more protective of public health than the minimum federal requirements." ('

4010, subd. (f).) 

The Legislature has also provided in the Act that ". . . this act merely affirms for the state that 

which has been declared existing law or regulation through action of the federal government." 

(Stats. 1976, ch. 1087, ' 7.) We note that the federal law (42 U.S.C. ' 300f, et seq.) applies, 

with specified exceptions not applicable here, to "each public water system in each State." (42 

U.S.C. ' 300g.) Manifestly, a state statute adopted or amended for the purpose of operating in 

harmony with federal law must be construed, not independently, but in conjunction with the 

federal law. (Pearson v. State Social Welfare Board (1960) 54 Cal.2d 184, 214; 62 

Ops.Cal.Atty.Gen. 798, 803 (1979).) 

It is concluded that a California water system is not exempt from any provisions 

of the Act, whether administered locally or by the Department. 

* * * * * 

concern. (26 Ops.Cal.Atty.Gen. 7, 11 (1955).) 

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