BILL ANALYSIS
SB 409
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Date of Hearing: June 22, 2005
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Simon Salinas, Chair
SB 409 (Kehoe) - As Amended: May 11, 2005
SENATE VOTE : 22-14
SUBJECT : General plans: conservation element.
SUMMARY : Requires that the water resources portion of a general
plan's conservation element be correlated with the land use
element. Specifically, this bill :
1)Requires that the water resources portion of a general plan's
conservation element be correlated with the land use element.
2)Requires counties and cities to correlate the water supply
portion of their conservation elements with their land use
elements by one year after the deadline for revising their
housing elements after 2007.
3)Allows cities and counties to adopt written findings declaring
that their general plans already comply with this requirement.
EXISTING LAW :
1)Requires every county and city to adopt a general plan that
contains seven mandatory elements: land use, circulation,
housing, conservation, open space, noise, and safety.
2)Requires the land use element to designate public and private
land use categories, including land for housing, business,
industry, open space, education, and public buildings, and
include standards for population density and building
intensity.
3)Requires the conservation element to address conserving,
developing, and using natural resources, including water.
4)Requires a city or county to use a water agency's water
management plan as a source document for the adoption or
amendment of the conservation element of a general plan.
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5)Requires public water systems to provide information on water
supply to city or county planning agencies upon notification
of proposed adoption or amendment of a general plan.
6)Requires a city or county to deny approval of a tentative or
parcel map for any subdivision of more than 500 residential
units if the developer cannot provide written verification
that an adequate water supply is or will be available.
7)Requires a city or county to make a water supply assessment
for any project that is subject to CEQA, and requires cities
and counties to identify the water system that is or may
become the water supplier for the project.
FISCAL EFFECT : The Senate Committee on Appropriations
determined that any additional state costs created by SB 409 are
not significant and do not and will not require the
appropriation of additional state funds, and that SB 409 will
cause no significant reduction in revenues, pursuant to Senate
Rule 28.8.
COMMENTS :
1)In 1995, the Legislature passed SB 901 (Costa), Chapter 881,
Statutes of 1995, which, for the first time, required planning
agencies to consider information provided by water suppliers
in their decision to approve or deny commercial, industrial,
or residential development.
A recent study of environmental documents for commercial,
industrial, and residential developments showed a high level
of non-compliance with SB 901.
2)The East Bay Municipal Utility District examined 119 large
scale development projects and found that only 2% complied
with all of the requirements of SB 901. Over 90% of the
projects identified either the State Water Project (SWP) or
the Central Valley Project (CVP) as a water source. However,
since both of these systems already have significantly more
demand on them than they are capable of meeting, identifying
them as water sources for planned development is, at best,
unrealistic.
3)In addition, the courts have begun to invalidate environmental
impact reports (EIRs) for development projects that do not
adequately identify real water supply sources. In Santa
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Clarita Organization for Protecting the Environment v. County
of Los Angeles, 131 Cal. Rptr. 2d 186 (2003), the court found
that "an environmental impact report for a housing development
must contain a thorough analysis that reasonably informs the
reader of the amount of water available. The dream of water
entitlements from the incomplete State Water Project (SWP) is
no substitute for the reality of actual water the SWP can
deliver," and ruled that Los Angeles County erred in approving
the EIR for the Newhall Ranch residential development because
the water service portion of the EIR was inadequate. In 2000
the Kern County Superior Court decided another case
challenging the adequacy of the environmental documents
Newhall Ranch (United Water Conservation District v. County of
Los Angeles et al., No. 239324 RDR (Kern Co. Super. Ct.
2000)). In that case the court found the environmental
documents to be inadequate in part because the water supplies
identified by the project proponents were insufficient to meet
the project's needs. In Planning and Conservation League et
al. v. Department of Water Resources, 83 Cal.App.4th 892
(2000), (PCL) the court found that the EIR for the so-called
"Monterey Agreement," in which DWR and six agricultural and
urban contractors to the SWP agreed to revise methods of
allocation among contractors, was invalid because it failed to
meaningfully analyze alternatives. The court also stated that
"where land use planning determinations can be made on the
basis of entitlement rather than real water, development can
outpace the availability of water, leading to detrimental
environmental consequences, excessive groundwater pumping, and
pressure to develop additional water supplies" (PCL at 914).
4)SB 610 (Costa), Chapter 643, Statutes of 2001, took
significant steps to tighten up and close loopholes in SB 901
in order to ensure that all commercial, industrial and
residential projects have an identified source of water and
that city and county planning agencies have sufficient
information to determine the adequacy of those supplies before
deciding to approve or deny
a development project. SB 610, like SB 901 before it, addressed
the issue of water supply assessment fairly early in the
planning process, at the level of a specific plan or the
creation or revision of an urban water management plan.
5)SB 221 (Kuehl), Chapter 642, Statutes of 2001, also addressed
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the broad issue of land use and water supply, but at a
different point in the planning process. SB 221 requires a
city or county to deny approval of a tentative or parcel map
for a subdivision of more than 500 units if the city or county
finds that the project does not have a sufficient, reliable
water supply. SB 221 is the only one of the chaptered bills
in this area that requires action by a developer. The
responsibility for compliance with the requirements of SBs 901
and 610 lies with local governments and water districts.
6)Some question has arisen about the definition of the word
"correlation" as used in SB 409. According to material
provided by the sponsor of SB 409, the Attorney General,
previous court cases construing the "correlation" required
between the circulation element and the land use element are
instructive. In those cases, the courts have found that 1)
correlation must be demonstrated; it is not to be assumed
(Twain Harte Homeowners Association v. Tuolumne County (1982)
138 Cal.App.3d 664); 2) correlation means, as defined by
Webster, "closely, systematically, or reciprocally related?,"
so only a general alignment between general plan elements is
required since these plans are general in nature (Concerned
Citizens of Calaveras County v. Board of Supervisors (1985)
166 Cal.App.3d 90); and 3) correlation means that the
circulation element must include "meaningful proposals" to
address growth changes in the land use element and vice versa
(Federation of Hillside & Canyon Associations et al v. City of
Los Angeles (2004) 126 Cal.App.4th 1180). Based on these
precedents and definitions, SB 409 would require a general
alignment between water supply and land use growth, including
meaningful proposals to meet future water needs, where
appropriate, but would not require that every drop of water
ever to be needed in the future must be identified in the
conservation element.
7)According to the author, the question raised by this bill is
when should the "water supply issue" be addressed? SB 409 is
premised on the idea that society would be better off if any
water supply issues were addressed as early as possible in the
process, with proper coordination between the city/county and
the water agency and the ability to develop any needed water
supplies. By requiring a correlation between water supply and
land use water supply to at the general plan level - the basic
blueprint for development - SB 409 can be seen as completing a
tiered structure for ensuring adequate supplies of real, not
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"paper" water started by SBs 901, 610, and 221. When this
system works as it is meant to, a city or county will begin
coordinated water supply planning adequate for the level of
growth projected in its general plan, information that can be
tiered off of at the specific plan/urban water management plan
addressed by SB 610, and which in turn can be used by a
subdivider to satisfy the requirements of SB 221 with a
minimum of effort. SB 409 will, by requiring water supply to
be addressed at the earliest stage of development, make it
that much less likely that a developer or subdivider will find
the requirements of SB 221 a burden, and also reduce the
likelihood of litigation over water supply disputes at the
level of individual development projects.
8)This bill has been double-referred to the Committees on Local
Government and Water, Parks and Wildlife.
REGISTERED SUPPORT / OPPOSITION :
Support
Attorney General Bill Lockyer [SPONSOR]
American Federation of State, County, and Municipal Employees
CA Farm Bureau Federation
CA League of Conservation Voters
East Bay Municipal Utility District
Opposition
CA Association of Realtors
CA Building Industry Association
CA Business Properties Association
CA Business Roundtable
CA Chamber of Commerce
Consulting Engineers and Land Surveyors of CA
Greater Fresno Area Chamber of Commerce
Home Ownership Advancement Foundation
Milpitas Chamber of Commerce
Pardee Homes
Resource Landowners Coalition
San Rafael Chamber of Commerce
Analysis Prepared by : J. Stacey Sullivan / L. GOV. / (916)
319-3958
SB 409
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