BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Gloria Negrete McLeod, Chair
BILL NO: SB 821 HEARING: 4/18/07
AUTHOR: Kuehl FISCAL: Yes
VERSION: 4/11/07 CONSULTANT: Detwiler
DEVELOPMENT DECISIONS AND WATER SUPPLY
Background and Existing Law
Urban water suppliers with more than 3,000 customers must
adopt urban water management plans (AB 797, Klehs, 1983).
An important component of these plans is an assessment of
water reliability service during normal, dry, and
multiple-dry years (AB 1845, Cortese, 1995). Urban water
suppliers must review their plans in years that end in "0"
and "5" (AB 2552, Bates, 2000).
Urban water management plans are source documents for
cities and counties' general plans. Before they adopt or
amend their general plans, city and county planners must
notify urban water suppliers and follow a standardized
process for determining the adequacy of water supplies (AB
455, Cortese, 1992).
Cities and counties must consider information provided by
water suppliers when they act on proposals for large-scale
residential, commercial, hotel, industrial, or mixed-use
projects (SB 901, Costa, 1995). Concerned that local
agencies weren't implementing the 1995 requirements,
legislators broadened its application and increased the
required information. Every large-scale development
project must have a water supply assessment (SB 610, Costa,
2001).
The Subdivision Map Act requires cities and counties to
include as a condition in their approval of a tentative map
for a subdivision with more than 500 dwelling units that a
sufficient water supply must be available (SB 221, Kuehl,
2001). More specifically, the 2001 Kuehl bill:
Required that proof of the availability of a
sufficient water supply must be based on a written
verification from the applicable public water system.
Allowed either the applicant or the city or county
to request the written verification and gave the
public water system 90 days to respond.
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Allowed the city or county or any other interested
party to seek a writ of mandate if the public water
system fails to deliver the water supply assessment.
Allowed a city or county to find that sufficient
water supplies will be available, even if the public
water system does not provide written verification.
Required that, when a public water system's written
verification relies on projected water supplies, the
verification must be based on written contracts,
adopted capital outlay programs, and infrastructure
construction permits.
Required that, when a public water system's written
verification relies on groundwater, the public water
system must evaluate whether the landowner has
additional groundwater rights.
Applied these requirements to residential
subdivisions with more than 500 dwelling units. The
requirements also apply to subdivisions that increase
service connections by 10% or more in public water
systems with less than 5,000 connections.
Applied this same requirement to development
agreements that include larger residential
subdivisions.
Exempted certain residential projects from these
requirements.
Exempted the County of San Diego under certain
conditions.
In October 2003, the Senate Local Government Committee and
the Senate Agriculture and Water Resources Committee held a
joint hearing on "Water and Land Use Planning" in Tracy.
After two hours of comments from 14 witnesses, the
committees' staffs identified five findings:
Local officials have not fully implemented SB 221
and SB 610.
There is support for including water supply and
water demand information in city and county general
plans.
Urban water management plans and agricultural water
management plans were a good start, but more needs to
be done.
Legislators should amend the water and land use
planning statutes to improve the law's clarity and
effectiveness.
Legislators should consider lowering the threshold
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that triggers a water supply and demand analysis for
proposed development projects.
Six years after the enactment of the 2001 Costa and Kuehl
bills, some legislators want to strengthen the statutory
connections between land use decisions and the availability
of water supplies.
Proposed Law
I. Subdivisions . Senate Bill 821 reduces, from 500 to 250
dwelling units, the threshold for requiring a city or
county to impose a condition on its approval of a tentative
subdivision map that a sufficient water supply must be
available.
II. Development Permits . Senate Bill 821 requires cities
and counties to impose, as a condition on any entitlement
for a project, a requirement that a sufficient water supply
must be available.
SB 821 defines "entitlement" to mean any discretionary or
ministerial permit, use permit, conditional use permit, or
building permit for the construction of a project or a
development agreement.
The bill defines "project" to include:
A shopping center or business employing more than
1,000 people or having more than 500,000 square feet
of floor space.
A commercial office building employing more than
1,000 persons or having more than 250,000 square feet
of floor space.
A hotel or motel with more than 500 rooms.
An industrial, manufacturing, processing plant, or
industrial park planned to house more than 1,000
people, occupy more than 40 acres, or have more than
650,000 square feet of floor area.
A mixed-use project that includes any of these
projects.
Any project that needs more water than 500 dwelling
units.
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SB 821 requires that proof of the availability of a
sufficient water supply must be based on a written
verification from the applicable public water system. The
bill allows either the applicant or the city or county to
request the written verification and gives the public water
system 90 days to respond. If the public water system
fails to deliver the water supply analysis, SB 821 allows
the city or county or any other interested party to seek a
writ of mandate. If the public water agency's written
verification indicates that it can't provide a sufficient
water supply, the bill allows the city or county to find,
based on substantial evidence in the record, that
additional water supplies are or will be available before
the project is completed. If the public water agency
doesn't provide any written verification, the bill allows
the city or county to find, based on substantial evidence
in the record, that additional water supplies are or will
be available before the project is completed.
The bill requires that the public water system's written
verification regarding water supplies must be based on
substantial evidence, including its urban water management
plan, a water supply assessment, or substantially similar
information.
If the public water system's written verification relies on
projected water supplies that are not yet currently
available, SB 821 requires the verification to rely on
written contracts, adopted capital outlay programs,
infrastructure construction permits, and necessary
regulatory approvals.
If there is no public water system, the bill allows the
city or county to make a written finding of sufficient
water supplies.
SB 821 requires all of the written verifications of
sufficient water supplies to describe the reasonably
foreseeable impacts of the proposed project on the
availability of water for agricultural and industrial uses
in the public water system's service area that use the same
water sources. If a water supply includes groundwater, the
bill requires the public water system to evaluate the
landowner's right to use the groundwater to supply the
proposed project.
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SB 821 allows the city or county to work with the project
applicant and the public water system to secure sufficient
water supplies.
The bill exempts from its requirements any residential
subdivision or mixed-use project for a site that is either
(1) within an urbanized area that was previously developed
for urban uses, or (2) where the contiguous properties are
or were developed for urban uses. SB 821 also exempts
housing projects that are exclusively for very low and
low-income households.
The determinations required by the bill must be consistent
with the public water system's existing statutory
obligation to provide water to housing developments that
meet the city or county's regional housing needs for lower
income households.
SB 821 declares that its provisions apply to charter cities
because the availability of sufficient water supplies is a
matter of statewide concern and not a municipal affair.
Comments
1. Matching water and land use . For the last
quarter-century, the Legislature has incrementally required
local land use decisions to match the availability of water
supplies. From the 1983 Klehs measure that required urban
water management plans to the 2001 Costa and Kuehl bills,
legislators have gradually extended the policy requirement
that sufficient water supplies should be available before
city councils and county supervisors approve more
development. In a semi-arid state facing a growing
population and an expanding economy, it only makes sense to
know where the water is coming from before approving more
residential, commercial, and industrial development
projects. SB 821 takes the next step in that historical
progression by requiring local officials to identify water
supplies before they approve medium-sized residential
subdivisions. The bill also requires similar analyses and
conditions before local officials permit the development of
larger commercial, hotel, industrial, and mixed-use
projects.
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2. Murky research . Even though it's been six years since
the 2001 Kuehl bill required cities and counties to put
water supply conditions on residential subdivisions with
more than 500 units, there are no reliable data on the
law's effectiveness. No one can say for certain how many
subdivisions or how many residential units have come under
the existing requirements. Have local officials faithfully
followed the law, or did they find ways to dodge the
statutory requirements? Without knowing the answers to
those questions, it's premature to reduce the size
threshold for residential subdivisions or to extend those
requirements to nonresidential projects. Before
legislators create solutions, they need to define the scale
and scope of the specific problems they want to solve.
Instead of creating another new state mandate, the
Committee may wish to consider commissioning a detailed,
thorough, and reliable study of how the existing laws
really work.
3. Adaptive drafting . SB 821's definition of large-scale
nonresidential projects is similar to the definitions in
the 1995 and 2001 Costa bills that required local officials
to prepare water supply assessments when they prepare
environmental review documents. Local officials who adhere
to the existing requirements for water supply assessments
probably have all the information they need to comply with
SB 821. Further, local officials who have already
integrated water supply information into their general
plans can probably meet the bill's requirements without
much additional work. By relying on existing statutory
definitions and the existing requirements for water supply
assessments, SB 821 is a modest incremental change to the
laws that connect land use decisions with water supply
planning.
4. Does size matter ? Early versions of the 2001 Kuehl
bill would have applied its requirements for water supply
conditions to subdivisions with more than 200 dwelling
units. The final version of the Kuehl bill settled on
subdivisions with more than 500 dwelling units. That's the
same threshold that the 2001 Costa bill used to require
water supply assessments when preparing environmental
documents. At the October 2003 joint oversight hearing,
some witnesses (including one developer) recommended
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lowering the 500-unit threshold to 200 dwelling units.
However, a coalition of five business groups opposed the
proposed reduction. SB 821 lowers the threshold for
requiring conditions to subdivisions from more than 500
units to subdivisions with more than 250 dwelling units.
The Committee may wish to consider whether legislators
should similarly lower the threshold on the Costa statute
that requires water supply assessments in environmental
documents.
5. Gaps and leaks ? Another staff finding from the October
2003 joint hearing was that legislators should improve the
law's clarity and effectiveness. While implementing the
2001 bills, state and local officials discovered drafting
problems. The Committee may wish to consider whether
legislators should ask the State Department of Water
Resources to recommend specific statutory improvements in
the laws that describe planning for reliable water
supplies. Better written state laws can lead to better
local implementation practices.
6. Even San Diego . When local officials in San Diego
County argued that their regional growth strategy already
aligned land use decisions with water supplies, the 2001
Costa and Kuehl bills allowed them to avoid those specific
requirements if the Governor's Office of Planning and
Research (OPR) made specified determinations. OPR has
never made those determinations and local officials in San
Diego County must comply with existing law. SB 821 does
not exempt the County of San Diego and its 18 cities from
the requirement to impose conditions on large-scale
nonresidential development projects.
7. Better drafting . SB 821 includes a development
agreement within its definition of an "entitlement" that
requires a condition that a sufficient water supply must be
available. But development agreements rely on a statute
that's separate from zoning and project entitlements. To
avoid creating any legal confusion, the Committee may wish
to consider a technical amendment that places the provision
for development agreements in the existing statute that
governs development agreements.
Support and Opposition (4/12/07)
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Support : Unknown.
Opposition : California Building Industry Association.