BILL ANALYSIS Ó
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: SB 1262 Hearing Date: March 29,
2016
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|Author: |Pavley | | |
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|Version: |February 18, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Dennis O'Connor |
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Subject: Water supply planning
BACKGROUND AND EXISTING LAW
California has a number of interconnecting laws that together
attempt to ensure that water supply availability is given proper
consideration when making land use decisions, and increasingly
vice versa.
1.Under California's Planning and Zoning Law:
Before a city or county adopts or substantially amends a
general plan, the planning agency must refer the proposed
action to a number of entities, including:
A public water system with 3,000 or more service
connections that serves water to customers within the
area covered by the proposal. The public water system
shall have at least 45 days to comment on the proposed
plan, in accordance with subdivision (b), and to provide
the planning agency with the information set forth in
Section 65352.5.
Any groundwater sustainability agency (GSA) that has
adopted a groundwater sustainability plan (GSP) under the
Sustainable Groundwater Management Act (SGMA) or local
agency that otherwise manages groundwater pursuant to
other provisions of law or a court order, judgment, or
decree within the planning area of the proposed general
plan.
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The State Water Resources Control Board (SWRCB), if
it has adopted an interim plan pursuant to Chapter 11
(commencing with Section 10735) of Part 2.74 of Division
6 of the Water Code that includes territory within the
planning area of the proposed general plan.
Upon receipt of such a proposed action:
A public water system is to provide the planning
agency with information relevant to determining the
adequacy of existing and planned future water supplies to
meet existing and planned future demands on these water
supplies, including such things as:
o The current version of its urban water
management plan (UWMP).
o The current version of its capital improvement
program or plan.
o A description of the source or sources of the
total water supply currently available to the water
supplier by water right or contract, taking into
account historical data concerning wet, normal, and
dry runoff years.
o A description of all proposed additional
sources of water supplies for the water supplier.
A GSA is to provide the planning agency with a
report on the anticipated effect of the proposed action
on implementation of a groundwater sustainability plan,
along with a GSP or alternative plan, and information
regarding any adjudication of groundwater rights in the
basin.
The SWRCB is not required to provide any
information.
1.Under what are often called California's "Show Me the Water
Bills" [aka SBs 610 & 221, (Ch.s 643 & 642, Stat. 2001)]:
a. A project is defined, generally, as:
A residential development of 500 or more units, or a
project that would demand an equivalent amount of water
as a 500 unit residential development.
If a public water system that would serve the
project has fewer than 5,000 service connections, then a
project means a proposed development that would account
for an increase of 10 percent or more of the number of
the public water system's existing service connections.
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a. A city or county, at the time that it determines that a
project is subject to the California Environmental Quality
Act (CEQA), must identify any water system that that may
supply water for the project. (This is typically at the
time of a general plan amendment.)
If the city or county is not able to identify any public
water system that may supply water for the project, the
city or county must prepare a water assessment after
consulting with any entity serving domestic water supplies
whose service area includes the project site, the local
agency formation commission, and any public water system
adjacent to the project site.
b. The city or county, at the time it determines a project
is subject to CEQA, must ask each and any of the public
water system identified (above) to determine whether the
projected water demand associated with a proposed project
was included as part of the most recently adopted UWMP.
If the projected water demand was accounted for in
the most recently adopted UWMP, the public water system
may incorporate information from the UWMP in preparing
the elements of a water supply assessment (described
below).
If the projected water demand was not accounted for
in the most recently adopted UWMP, or the public water
system has no UWMP, the water supply assessment is
required to include a discussion regarding whether the
public water system's total projected water supplies
available during normal, single dry, and multiple dry
water years during a 20-year projection will meet the
projected water demand associated with the proposed
project, in addition to the public water system's
existing and planned future uses.
If the city or county must prepare the water
assessment, the water supply assessment for the project
must include a discussion regarding whether the total
projected water supplies, determined to be available by
the city or county for the project during normal, single
dry, and multiple dry water years during a 20-year
projection, will meet the projected water demand
associated with the proposed project, in addition to
existing and planned future uses, including agricultural
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and manufacturing uses.
a. The water supply assessment must identify any existing
water supply entitlements, water rights, or water service
contracts relevant to the identified water supply for the
proposed project, and describe the quantities of water
received in prior years by the public water system, or the
city or county, under the existing water supply
entitlements, water rights, or water service contracts.
b. If a water supply for a proposed project includes
groundwater, the following additional information must be
included in the water supply assessment:
A review of any information contained in the UWMP
relevant to the identified water supply for the proposed
project.
A description of any groundwater basin or basins
from which the proposed project will be supplied.
For those basins for which a court or the board has
adjudicated the rights to pump groundwater, the
assessment must include a copy of the order or decree
adopted by the court or the board and a description of
the amount of groundwater the public water system, or the
city or county, has the legal right to pump under the
order or decree.
For basins that have not been adjudicated, the
assessment must include information regarding whether DWR
has identified the basin or basins as overdrafted or has
projected that the basin will become overdrafted if
present management conditions continue and a detailed
description by the public water system, or the city or
county, of the efforts being undertaken in the basin or
basins to eliminate the long-term overdraft condition.
A detailed description and analysis of the amount
and location of groundwater pumped by the public water
system, or the city or county, for the past five years
from any groundwater basin from which the proposed
project will be supplied. The description and analysis
shall be based on information that is reasonably
available, including, but not limited to, historic use
records.
If the city or county was unable to identify a
public water service that may provide water to the
project, a detailed description and analysis of the
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amount and location of groundwater that is projected to
be pumped by the public water system, or the city or
county. The description and analysis shall be based on
information that is reasonably available, including, but
not limited to, historic use records.
An analysis of the sufficiency of the groundwater
from the basin or basins from which the proposed project
will be supplied to meet the projected water demand
associated with the proposed project.
a. When the project proponent submits a tentative map
for approval by the city or county, the city or county
must include as a condition in any tentative map that
includes a subdivision a requirement that a "sufficient
water supply" shall be available. Proof of the
availability of a sufficient water supply must be
requested by the subdivision applicant or local agency,
and shall be based on written verification from the
applicable public water system.
"Sufficient water supply" means the total water
supplies available during normal, single-dry, and
multiple-dry years within a 20-year projection that will
meet the projected demand associated with the proposed
subdivision, in addition to existing and planned future
uses, including, but not limited to, agricultural and
industrial uses. In determining "sufficient water
supply," all of the following factors shall be
considered:
o The availability of water supplies over a
historical record of at least 20 years.
o The applicability of an urban water shortage
contingency analysis that includes actions to be
undertaken by the public water system in response to
water supply shortages.
o The reduction in water supply allocated to a
specific water use sector under a water shortage
emergency.
o The amount of water that the water supplier
can reasonably rely on receiving from other water
supply projects, such as conjunctive use, reclaimed
water, water conservation, and water transfer,
including programs identified under federal, state,
and local water initiatives.
The applicable public water system's written
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verification of its ability or inability to provide a
sufficient water supply that will meet the projected
demand associated with the proposed subdivision must be
supported by substantial evidence. The substantial
evidence may include, but is not limited to, any of the
following:
o The public water system's most recently
adopted UWMP.
o A water supply assessment that was completed
pursuant to Part 2.10 (commencing with Section 10910)
of Division 6 of the Water Code.
o Other information relating to the sufficiency
of the water supply that contains analytical
information that is substantially similar to the water
service reliability assessment required by the Urban
Water Management Planning Act.
Where a water supply for a proposed subdivision
includes groundwater, the public water system serving the
proposed subdivision shall evaluate, based on substantial
evidence, the extent to which it or the landowner has the
right to extract the additional groundwater needed to
supply the proposed subdivision.
1.Under CEQA, whenever a city or county determines that a
project, as defined under the "Show Me the Water Bills," is
subject to CEQA, it must comply with the water supply
assessment requirements of the "Show Me the Water Bills,"
triggered by that determination.
2.Under the Sustainable Groundwater Management Act (SGMA):
A GSP must take into account the most recent planning
assumptions stated in local general plans of
jurisdictions overlying the basin.
A GSP must include, among other things, a description of
the consideration given to the applicable county and city
general plans and a description of the various adopted
water resources-related plans and programs within the
basin and an assessment of how the groundwater
sustainability plan may affect those plans.
Before initiating the development of a GSP, the GSA must
make available to the public and the Department of Water
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Resources (DWR) a written statement describing the manner
in which interested parties may participate in the
development and implementation of the groundwater
sustainability plan.
Additionally, the GSA must provide the written statement
to the legislative body of any city, county, or city and
county located within the geographic area to be covered
by the plan.
PROPOSED LAW
This bill would:
1.Amend the requirements for a water supply assessment triggered
by a city or county determination that a project is subject
CEQA as follows:
a. Changes the procedures for when a water system is not
identified by a city or county or none of the identified
water systems are willing to supply the water, to the
following:
Requires the city or county to prepare a technical
report that includes all of the following:
o The name of each public water system that has
a service area boundary within five miles of any
boundary of the applicant's proposed service area.
o An analysis of the feasibility of a water
system annexing, connecting, or otherwise supplying
domestic water to the project.
o An analysis of the long-term feasibility of
creating a new water system to serve the project,
including, but not limited to, projecting the capacity
of anticipated ratepayers to sustain a water system if
there is the potential that water treatment will be
required in the foreseeable future.
o A description of all actions taken by the city
or county to secure a supply of domestic water from an
existing public water system for the project.
o A description of all actions taken by the
project proponent to pursue a contract for managerial
or operational oversight from an existing public water
system.
If the city or county concludes, based on the
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technical report, that it is feasible for a water system
to provide water to the project, the city or county shall
submit their technical report to the local agency
formation commission with jurisdiction over the project.
If the local agency formation commission (LAFCo)
declines to approve an annexation or extension of
service, the city or county shall develop a water supply
assessment for the project that includes a discussion on
whether the total projected water supplies, determined to
be available by the city or county for the project during
normal, single dry, or multiple dry water years during a
20-year projection, will meet the projected water demand
associated with the proposed project, in addition to
existing and planned future uses, including agricultural
and manufacturing uses.
a. Changes the information requirements for when a water
supply for a proposed project includes groundwater from a
non-adjudicated basin to the following:
For a basin that has not been adjudicated and is
designated as high- or medium-priority under SGMA,
information regarding the following:
o Whether DWR has identified the basin as being
subject to critical conditions of overdraft.
o Whether the SWRCB has designated the basin as
a probationary basin.
o If a GSA has adopted a GSP or submitted an
alternative plan, a copy of that plan.
For a basin that has not been adjudicated and is
designated as low- or very-low priority pursuant SIGMA,
Information regarding:
o Whether DWR has identified the basin or basins
as overdrafted or has projected that the basin will
become overdrafted if present management conditions
continue; and if so,
o A detailed description by the public water
system, or the city or of the efforts being undertaken
in the basin or basins to eliminate the long-term
overdraft condition.
a. Prohibits the following from being considered a source
of water:
Hauled water.
Groundwater from a basin designated by the board as
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a probationary basin under SGMA.
a. Adds a requirement to the water supply assessment that
if a water supply for a proposed project includes water of
a quality not sufficient to meet all primary and secondary
drinking water standards, the following additional
information needs to also be included:
A detailed description of the concentration of
contaminants.
The proposed method for treating, blending, or
otherwise ensuring that the water will meet drinking
water quality standards.
The project cost to achieve drinking water quality.
An analysis of the affordability of water for the
project's anticipated residents.
1.Amend the requirements for a determination of sufficient water
supply triggered by project proponent submitting a tentative
map for approval by the city or county as follows:
a. If a proposed subdivision relies in whole or in part on
groundwater, add the following to the list of factors to be
considered in determining sufficient water supply:
For a basin for which a court or the SWRCB has
adjudicated the rights to pump groundwater, the order or
decree adopted by the court or the SWRCB.
For a basin that has not been adjudicated, as
follows:
o For a basin designated as high- or
medium-priority pursuant to Section 10722.4 of the
Water Code, the most recently adopted or revised
adopted groundwater sustainability plan.
o For a basin designated as low- or very-low
priority pursuant to Section 10722.4 of the Water
Code, information as to whether the Department of
Water Resources has identified the basin or basins as
overdrafted or has projected that the basin will
become overdrafted if present management conditions
continue.
a. Adds to the list of items to be considered as
substantial evidence in support of a determination of
sufficient water supply a groundwater sustainability plan
adopted under SGMA.
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b. When a water supply for a proposed subdivision includes
groundwater, groundwater from a basin designated by the
SWRCB as a probationary basin under SGMA cannot considered
as a water supply.
1.Make other technical amendments.
ARGUMENTS IN SUPPORT
According to the author, "California has a number of
interconnecting laws that together attempt to ensure that water
supply availability is given proper consideration when making
land use decisions, and vice versa. Among those laws are 2002's
SBs 610 (Costa) and 221 (Kuehl), also known as the "show me the
water bills." When we passed the Sustainable Groundwater
Management Act (SGMA) in 2014, we updated some water and land
use planning laws to reflect SGMA, but not the show me the water
bills."
"SB 1262 (Pavley/Wieckowski), in conjunction with SB 1263
(Wieckowski/Pavley), builds on the administration's Affordable
Safe Drinking Water Initiative to update the show me the water
bills as follows:
Integrates groundwater sustainability agencies and consideration
of groundwater sustainability plans into water supply and land
use planning.
Prohibits use of groundwater to supply new development if the
groundwater basin has been deemed out of compliance with SGMA
(i.e., is "probationary")
Prohibits the use of hauled water to comply with show me the
water bills.
Creates a process to discourage creation of new water systems
when it is geographically and economically feasible to connect
to an existing system."
ARGUMENTS IN OPPOSITION
A coalition of building, real estate, and other business
interests write, "The bill significantly expands the California
Environmental Quality Act (CEQA) and complicates the Subdivision
Map Act in ways that make adherence to those processes by
project applicants substantially more difficult to achieve."
"In the spirit of finding workable solutions to the issues you
have identified, we respectfully offer the following
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approaches." They then describe three suggestions which can be
described as
Shift from a project based to programmatic based water/landuse
planning approach.
Revise the proposed procedures for a "technical report" to one
that more realistically encourages public water systems to
provide water.
Resolve some "circular" provisions regarding CEQA and LAFCo
reviews.
They conclude: "We believe that the problems we have touched on
in the introduced version of the bill are serious but can be
remedied. Therefore, we must oppose the measure but we
appreciate your consideration of our suggested changes and are
ready to assist in seeking solutions."
COMMENTS
Harmonizing Water/Land Use Planning. This bill, among other
things, attempts to ensure all water and land use planning laws
properly reflect the changes in groundwater planning brought on
by SGMA. As noted in the discussion of current planning and
zoning law, (see background and existing law 1a & 1b) before a
city or county adopts or substantially amends a general plan,
the planning agency must refer the proposed action to a number
of entities, including the SWRCB. However, unlike other
notified agencies, the SWRCB is not required to provide any
information to the city or county, even if the SWRCB has adopted
an interim plan for the basin. (See suggested amendment).
Provisions Regarding LAFCos Need Work. In addition to the
issues regarding LAFCos raised by business coalition, the
California Association of Local Agency Formation Commissions
(CALAFCo) and League of California Cities have raised concerns
of their own. CALAFCo writes "The proposed process pertaining
to the timing of the required water supply assessment after the
LAFCo has denied the application for annexation or extension of
service is out of place." The League similarly is concerned
about the "additional burdensome requirements on local
governments to identify and determine the capacity and
feasibility of another water agency/system annexing or extending
its services into the area in which the large project is located
when the water supplier in the area cannot sufficiently supply
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water." The LAFCo issues will likely be addressed in the
Governance and Finance Committee, should this committee pass
this bill. (See below).
Definition of a Project. Neither this bill or SB 1263 (see
below) change the definition of a project subject to the show me
the water bills. However, there seems to be interest in
exploring that option.
A coalition of environmental justice groups write
"Unfortunately, this legislation lets stand the definition of a
subdivision (500 or more connections) which effectively
precludes most development from this sensible review process. We
urge the authors and the committee to consider a substantial
reduction in this number in order to protect new communities and
ensure that the state will not have to share the burden of
supporting them in future droughts."
CALAFCo similarly write "While we have no magic bullet number to
offer in terms of what is the "right size" for a project, we
believe a threshold of 500 units for projects at the zoning
level (water supply assessment pursuant to SB 610) probably
captures less than half of the growth, and therefore, less than
half of the demand. The 500 unit threshold for subdivisions
(written verification pursuant to SB 221) probably captures a
very small percentage of subdivision activity. Most projects are
considerably smaller. ? We do feel it is best that thresholds
should change." Moreover, "We believe if there was a lower
trigger number for a project, the concern regarding phased
development and the demand for water required to adequately
supply those new phases will be addressed."
The authors have indicated that they are willing to explore a
different definition as this bill moves forward.
Related Bills:
SB 1263 (Wieckowski/Pavley), strengthens the permitting process
for new public water systems to create greater environmental,
public health, and financial sustainability of drinking water
supplies.
Double-Referral. The Rules Committee referred this bill to both
the Committee on Natural Resources and Water and to the
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Committee on Governance and Finance. Therefore, if this bill
passes this committee, it will be referred to the Committee on
Governance and Finance, which will consider the issues within
their jurisdiction.
SUGGESTED AMENDMENTS: Note. To ensure there is sufficient time
to amend and hear this bill before the policy bill deadline, the
amendments should be taken in the Governance and Finance
Committee.
AMENDMENT 1
Amend GC §106352.5 to require the SWRCB, when notified by
city or county of a substantive amendment or adoption of a
general plan, and when the SWRCB has adopted an interim
plan for the relevant groundwater basin, to require the
SWRCB provide the city or county a copy of the interim plan
and other relevant information.
SUPPORT
Clean Water Action
Community Water Center
Leadership Counsel for Justice and Accountability
Planning and Conservation League
Sierra Club California
OPPOSITION
California Apartment Association
California Association of Relators
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Independent Petroleum Association
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