BILL ANALYSIS
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
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BILL NO: AB 300 HEARING DATE: July 6, 2009
AUTHOR: Caballero URGENCY: No
VERSION: June 30, 2009 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Subdivisions: water supply.
BACKGROUND AND EXISTING LAW
In 2001, the Legislature passed and the Governor signed Senator
Kuehl's SB 221 (Stats. 2001, c. 642) and Senator Costa's SB 610
(Stats. 2001, c. 643).
SB 221 amended the Subdivision Map Act to require, as a
condition of approval of a tentative map for subdivisions
exceeding 500 residential units, written verification from the
applicable public water system that a sufficient water supply
will be available to serve the subdivision.
SB 610, among other things, amended the California Environmental
Quality Act (CEQA) and Part 2.10 of the Water Code (Water Supply
Planning to Support Existing and Planned Future Uses) to require
any city or county that determines a project is subject to CEQA,
to require a water supply assessment.
PROPOSED LAW
This bill would:
1.Require that the water supply assessments mandated by SB 221
and SB 610 be based on the anticipated water demand for the
project, given planned water demand reduction actions
contained in an adopted urban water management plan and
current statutory, regulatory, and local ordinance
requirements, reduced by the amount of voluntary demand
management measures.
2.Define voluntary water demand management measures as water use
efficiency measures that are permanently fixed to residential,
commercial, industrial, or other real property that will
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reduce the subdivision's water demand below the applicable
statutory, regulatory, and local ordinance requirements for
water conservation.
3.Allow voluntary mitigation measures to include water
conservation offsets that minimize a percentage of a project's
impact on the public water system, as determined by the
applicant and agreed upon by the public water system. The
applicant would be allowed to enter into a mutual agreement
with the public water system to mitigate water demand
associated with a proposed subdivision by depositing funds
into a Voluntary Water Demand Mitigation Fund.
4.Require that the water savings projection attributable to
voluntary demand management measures be contained in the
written verification and be verified for accuracy by the
public water system, or, if there is no public water system,
the local agency.
5.Require the projected water savings to be calculated using
either water efficiency program data compiled or maintained by
the public water system or water savings projections adopted
by the California Urban Water Conservation Council (CUWCC).
If a project applicant proposes to use a new voluntary water
demand management measure for which neither the CUWCC nor the
public water system has adopted an estimate or method to
calculate the projected water savings of the proposed
voluntary water demand management measure, the projected water
savings would be made based on documented methodologies or
calculations submitted in the record.
6.Require, if the written verification of a sufficient water
supply relies on the use of voluntary demand management
measures:
The written verification to be conditioned on the
maintenance and operation of the voluntary demand
management measures, or measures that are at least as water
efficient, as agreed to by the applicant and the public
water system, and the recordation as a covenant running
with the land.
The recorded covenant to include a notice of the
existence of the maintenance manual and the obligation of
the purchaser to obtain the maintenance manual from the
seller.
Each purchaser, by acceptance of a deed to a lot,
acknowledge the obligation to comply with the voluntary
demand management measures for the lot as described in the
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covenant.
The covenant and its obligations to be in effect for the
time period used by the public water system for determining
the water savings attributable to the demand management
measures but not exceeding 20 years.
The requirements under these provisions to be included
with the original sales documentation and shall
acknowledged by the purchaser. The seller shall instruct
the original purchaser to provide the maintenance manual to
any subsequent purchaser.
A builder, prior to the close of escrow, to give to a
purchaser information that shall be included in a
maintenance manual that informs the purchaser of the
existence of the home's unique water saving devices,
including information regarding their benefits, maintenance
requirements, and proper use.
The public water system would be allowed to enforce the
covenant pursuant to its existing authority.
1.Deem that a water supply assessment, completed pursuant to the
requirements of SB 610, satisfies the requirement for a water
supply assessment under SB 221 unless the public water system
receives significant new information that becomes available
and that was not known and could not be known at the time when
the assessment was prepared.
2.Require the public water system, five years after the project
has been fully developed, to include in its next urban water
management plan a report on the monitoring and compliance of
voluntary water demand management measures and determine
whether they have resulted in the water savings necessary to
achieve the agreed upon water demand offsets.
3.Sunset these provisions in 2017.
4.Make numerous findings and declarations regarding the
importance of encouraging permanent water conservation
practices beyond those required under current law.
ARGUMENTS IN SUPPORT
According to a coalition of building and business interests,
"For years, homebuilders have employed systems and technologies
to reduce water demand in new homes, including installation of
ultra-low flow toilets and showerheads, weather-based landscape
irrigation controllers, drought tolerant plants, recycled water
systems, rainwater capture and reuse systems along with low
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impact development strategies and other sustainable features.
However, local agencies do not always take into consideration
the existence and use of voluntary water savings devices.
Instead, current water demand projections may rely on out-dated
consumption models that do not reflect actual water use in
proposed subdivisions".
"AB 300 ensures that homebuilders and commercial developers who
employ voluntary water demand measures, receive reasonable
credit for their savings in connection with water-demand
assessments and verifications done during the entitlement
process. The public water agency would maintain control of the
water assessment and would simply be required to consider an
applicant's use of voluntary conservation measures in a new
housing or mixed use development. AB 300 requires the voluntary
water demand measures employed by the builder to be permanently
affixed to the property."
ARGUMENTS IN OPPOSITION
Opponents support the intent of AB 300 to encourage water
efficient development by allowing water-savings resulting from
"voluntary" water conservation measures to be credited in a
water supply assessment and water supply verification for that
development. However, they have serious concerns about specific
aspects of the bill.
A coalition of environmental organizations is concerned that,
"In its current version, AB 300 would thwart the effective
enforcement of these promised extraordinary water savings.
Relying on a deed restriction that only requires the homeowner
to read a maintenance manual about in-home conservation measures
and the homeowner's knowledge of this deed restriction is not an
effective tool for achieving compliance with these promises.
Relying on the water utility to police neighborhoods, looking
for landscaping on individual homes that may exceed the allotted
water demand is not at all realistic, results in government
intrusion into the home, and is extremely expensive to the
utility. This approach would also adversely impact all the
other ratepayers who would share in paying for the additional
enforcement staff required to police the new subdivisions."
East Bay Municipal Utility District (EBMUD) asserts, "The most
effective compliance strategy for ensuring that promised water
savings will be maintained over the course of changes in
property ownership is through the Covenants, Conditions, and
Restrictions (CC&Rs). CC&Rs establish the "rules of conduct" in
the development, and enforcement of the CC&Rs by the [Homeowner
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Association (HOA)] is established practice. Since most new
500-unit residential subdivisions include an HOA, the use of
CC&Rs provides a reliable and efficient means for enforcement.
HOAs are locally managed by the homeowners within the new
subdivision. They are located in the neighborhood, closest to
the properties, and are in the best position to verify that
homeowners are abiding by their promises concerning property
landscaping and water usage. Homeowners within a common
interest development already understand their obligation to
conform to the CC&Rs, and have a reasonable expectation that the
HOA will enforce the rules for the collective benefit of the
subdivision."
COMMENTS
Designing for Conservation. Many water conservation
technologies are relatively inexpensive to install when a
structure is being constructed, but are expensive to install as
a retrofit. If builders get credit for voluntarily installing
water conservation devices, they're more likely to design their
projects to include them.
Ensuring Permanent is Permanent. All parties agree that it is
critical that the voluntary water demand measures employed by
the builder be permanent. The key issue in dispute is what is
the best way to ensure that actually occurs? The author and
sponsors assert the best method is to record a covenant that
runs with the title that would prevent any future owner from
removing or disabling the water conservation features. The
opponents counter that the best way is to incorporate the
restrictions in the CC&Rs and to use HOAs as the first line of
enforcement.
HOAs. Homeowner Associations have their fans and their critics.
Fans note that HOAs provide people with shared neighborhood
values an opportunity to enforce regulations to achieve a
community reflecting those values. While an HOA inherently
restricts the rights that would otherwise exist for its members
based on city and county statutes, those very restrictions are
often the reason people decide to move into such neighborhoods.
Critics counter that many HOAs have excessively restrictive
rules and regulations on how homeowners are allowed to conduct
themselves and use their property. Due to their nature as a
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non-governmental entity, HOA boards of directors are not bound
by constitutional restrictions on governments, meetings are not
open to the general public, etc, even though in many cases they
are a de-facto level of government.
Commitment In Local Government Committee. This bill was heard
in the Senate Local Government Committee on 6/17/09. At that
hearing, the author presented a number of author's amendments.
The author also stated that while she agreed in concept to
amending the bill to include "CC&R/Enforcement" language, final
details were still being negotiated. Upon questioning by
members of the Committee, the author clarified that she was not
taking any CC&R enforcement language in our Committee, but was
committing to do so in the next policy committee.
The expectation of the Chair of the Local Government Committee
is that the author would amend the bill in the Senate Natural
Resources to enforce compliance with AB 300 through CC&Rs.
According to the Chair, the only possible exception to taking
amendments that include the use of enforceable CC&Rs would be if
all of the parties involved in negotiating the language agree to
some other enforcement provisions to amend into the bill.
While the author has amended the bill after the bill left the
Local Government Committee, the amendments do not enforce
compliance with the provisions of the bill through CC&Rs.
Moreover, many of the parties involved in negotiating the
language disagree with the enforcement provisions amended into
the bill.
SUGGESTED AMENDMENT: Direct staff, in collaboration with staff
of the Local Government Committee, to draft and process
amendments to delete recent amendments that required the
maintenance and operation of the voluntary demand management
measures as a covenant running with the land and replace with
language to enforce compliance with AB 300 through CC&Rs.
SUPPORT
California Building Industry Association
California Chamber of Commerce
California Business Properties Association
California Alliance for Jobs
California Apartment Association
California Association of Realtors
California Manufacturing and Technology Association
American Council of Engineering Companies California
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Associated General Contractors
Western Electrical Contractors Association, Inc.
OPPOSITION
Clean Water Action
Defenders of Wildlife
East Bay Municipal Utility District
Environment California
Executive Council of Homeowners
Food and Water Watch
Heal the Bay
Planning and Conservation League
Sierra Club
Urban Semillas
California Association of Realtors (if amended to include HOA
enforcement provisions)
Executive Council of Homeowners (if amended to include HOA
enforcement provisions)
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