WHO IS RESPONSIBLE FOR RAIN?

A major rain event occurs. In basements, raw sewage backs up from floor drains and wash tubs. Manhole covers pop open and raw sewage fills yards and streets. A wastewater treatment plant is deluged and bypasses raw sewage to the local stream. Who is responsible for these rain consequences?

Is it the city, which permitted homes to be built in flood plains without adequate storm water collection systems? Is it the homeowner, who has connected sump pumps and downspouts to the sanitary sewer? Is it the utility, whose collection mains may be undersized or blocked or manhole covers porous? Is it the wastewater treatment plant, which may have insufficient capacity to receive excess wet weather flows?

A USEPA press release of December 14, 2011 announced a significant consent decree settlement between it and the Metropolitan Water Reclamation District of Greater Chicago. The District provides wastewater treatment essentially for all sewage collected in Cook County. Historically, in major wet weather events, District interceptors and plants often have become surcharged by storm water inflows and infiltration. The consent decree appears to shift responsibility for the problem to the District. It establishes a schedule for completion of the District's deep tunnel and reservoir system to store untreated sewage so as to control untreated releases to rivers and Lake Michigan. It also requires the District to implement a "green" program by doing such things as distributing rain barrels and engaging in projects for green roofs and rain gardens.

Generally, however, it would seem that all involved parties have responsibility for inflow and infiltration of storm water into a sanitary sewer system. Cities have a responsibility to engage in reasonable land planning and effective storm water disposal. Homeowners have a responsibility to disconnect sump pump and downspout illegal connections to the sanitary sewer. Utility systems have a responsibility to police for illegal connections (for my clients, I developed illegal connection inspection and enforcement programs), to inspect mains and manholes for breaks and blockages, and to install sealed manhole covers. Wastewater treatment plants have a responsibility to assure that all excess flows that may be bypassed receive requisite treatment.

So, who is responsible for rain? Everyone!

WHO IS SANTA CLAUS?

In December, Santa Claus is everywhere...in stores, parades, street corners, yards, television, songs, advertisements, etc. In my early youth, was traumatized when I was told that Santa was my parents. How could my parents be in all those places? So, who really is Santa Claus?

To resolve my question, I naturally turned to the law...the alleged universal source of all wisdom. First coming to mind, of course, was the movie Miracle on 34th Street, where the judge held that Kris Kringle was Santa Claus because the post office delivered to him all letters addressed to Santa. However, on reflection, could I give credence now to this precedent given that the postal service claims to be on the edge of bankruptcy and primarily delivers to me tons of catalogs with pictures of Santa hawking gadgets I neither need or can afford. More research was needed!

"No one owns Santa Claus. The legend and the symbol have a solid place in the public domain." (Santa's Workshop v. Sterling, 153 N.Y.S 2d 839 (1956)). So, Santa is his own man who is some kind of symbol.

In another case, a shopper sued a store after a wood Santa fell from a shelf and hit her on the head. The court held for the store (Davis v. Wal-Mart Stores, 774 So.2d 84 (La. 2000)). So, Santa his own man, lives in the public domain, is made of wood and hits people on the head. Does it get any better?

Well, in another case, plaintiff's had received, and the court upheld, a copyright for a plastic Santa stuffed newspapers. The court described Santa: "the major component of plaintiffs' Santa Claus is a large bag cut from red plastic material, sewn together, and provided with a slit in the back for the insertion of crumpled newspaper. This bag is cut from an appropriate pattern so that it defines the arms, legs and torso of a human form. White trim is utilized at the end of the arms to give the appearance of mittens, while black plastic at the end of the legs serves as boots. At the top of the torso, a smaller bag is included to represent the head. At the back of this smaller bag there is a flap to receive a stick for supporting the head. The second component of plaintiffs' Santa Claus consists of a face and hood, which are slipped over the head of the figure. Finally, a tunic snapped around the waist performs the dual function of providing the illusion of a coat and holding in the stuffing. A square molded belt buckle, inscribed with scroll work and including a central opening, is attached to the top of the tunic. At the bottom is a horizontal white plastic stripe representing fur trim." (Doran v. Sunset HOuse Distributing Corp., 197 F. Supp. 949 (S.D. CA. 1961)).

Now I am really confused. No one owns Santa but he can be copyrighted. He can be wooden or he can be a bunch of plastic bags stuffed with newspapers--you know those sheets we used to read--with a stick up his head. But, after more research, I found a case that clarifies everything, because the law always is clear.

"It is generally accepted that the concept of Santa Claus can be traced to St. Nichols, a bishop of the early Catholic Church...Santa Claus of today is a figure endowed with mythic trappings having no conceivable connection to his real progenitor--he is a jolly bearded figure who lives at the North Pole and emerges on Christmas Eve in a flying sleigh pulled by eight reindeer to distribute toys manufactured by elves by climbing down chimneys." (Donnelly v. Lynch, 525 F. Supp. 1150 (D. RI. 1981)).

So, Santa is both real and unreal. This Christmas Eve, instead of leaving milk and cookies for Santa's visit, try leaving a glass of cool, fresh water. You may discover the real Santa Claus.

ADEQUATE RATES ARE IMPERATIVE

A municipality is considering hiring a consultant to prepare its first cost of service study since 1985 for its water utility. A large government-owned water utility uses reserve funds to subsidize operating expenses so that rate increases to satisfy revenue requirements are deferred. A small municipal water utility refuses to turn off water to customers who do not pay their bills because officials do not want to upset their neighbors.

What do these examples have in common? A general principle of public utility law is that rates must be reasonable and not unreasonably discriminatory. The only acceptable methodology to assure compliance with this principle is to base rates and rate design on a current, comprehensive cost of service study. Such a study will assign costs to the cost causers so as to avoid any cross-subsidization and unreasonable discrimination as between classes of customers. The study also will develop revenue requirements using test year principles and recommend appropriate rate design to recover those revenue requirements.

Deferring needed rate relief based upon perceived appeasement of customers will benefit neither customers nor the utility. Instead, it can result in deferral of necessary maintenance and capital improvements, with adverse consequences for quality of service.

Prudent management will realize that appropriate recovery of revenue requirements can only be achieved with timely rate adjustments founded upon cost of service analysis. Moreover, frequent review of costs and resulting application of smaller rate changes can militate against rate shock controversies that likely will arise from occasional proposed large rate increases.