BILL NUMBER: AB 1408 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 23, 2009
INTRODUCED BY Assembly Member Krekorian
FEBRUARY 27, 2009
An act to amend Section 66473.7 of the Government Code, relating
to subdivision map approvals.
LEGISLATIVE COUNSEL'S DIGEST
AB 1408, as amended, Krekorian. Subdivisions: Water Conservation
Mitigation Fund.
(1) The Subdivision Map Act establishes a statewide regulatory
framework for controlling the subdividing of land. The act generally
requires a subdivider to submit, and have approved by the city,
county, or city and county in which the land is situated, a tentative
map. The act requires the legislative body of a city or county or
the advisory agency, to the extent that it is authorized by local
ordinance to approve, conditionally approve, or disapprove the
tentative map, to include as a condition in any tentative map that
includes a subdivision a requirement that a sufficient water supply
be available. The act authorizes the legislative body to request
written verification of sufficient water supply, and, when the
written verification relies on projected water supplies that are not
currently available to the public water system to provide a
sufficient water supply to the subdivision, requires that the written
verification as to those projected water supplies be based on
prescribed elements.
This bill would establish a Water Conservation Mitigation
Fund to be administered, as specified, by a public water system. A
, instead, require the legislative body of a
city or county or the advisory agency, to the extent that it is
authorized by local ordinance to approve, conditionally approve, or
disapprove the tentative map, would be required to
include as a condition in any tentative map that includes a
subdivision a requirement that the subdivision have a sufficient
water supply be available or that sufficient water
supplies will be made available through a Water Conservation
Mitigation Fund , as defined, held by the public water
system. The bill would require the amount of
funding needed for voluntary participation by the subdivision
applicant in the Water Conservation Mitigation Fund would be
required to be based on offsetting at least 100 percent of
the projected water demand associated with the subdivision, as
determined by the public water system. The bill would authorize
the public water supplier to collect fees necessary to provide
additional analysis of extraordinary water conservation measures. The
bill also would require the public water system would
be required to expend all funds in the Water Conservation
Mitigation Fund on water conservation measures that will offset at
least 100 percent of the projected demand associated with the
subdivision, as specified. By adding to the duties of public water
system officials, this bill would impose a state-mandated local
program.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 66473.7 of the Government Code is amended to
read:
66473.7. (a) For purposes of this section, the following
definitions apply:
(1) "Subdivision" means a proposed residential development of more
than 500 dwelling units, except that for a public water system that
has fewer than 5,000 service connections, "subdivision" means any
proposed residential development that would account for an increase
of 10 percent or more in the number of the public water system's
existing service connections.
(2) "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:
(A) The availability of water supplies over a historical record of
at least 20 years.
(B) The applicability of an urban water shortage contingency
analysis prepared pursuant to Section 10632 of the Water Code that
includes actions to be undertaken by the public water system in
response to water supply shortages.
(C) The reduction in water supply allocated to a specific water
use sector pursuant to a resolution or ordinance adopted, or a
contract entered into, by the public water system, as long as that
resolution, ordinance, or contract does not conflict with Section 354
of the Water Code.
(D) 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 such as CALFED and Colorado River tentative
agreements, to the extent that these water supplies meet the criteria
of subdivision (d).
(3) "Public water system" means the water supplier that is, or may
become as a result of servicing the subdivision included in a
tentative map pursuant to subdivision (b), a public water system, as
defined in Section 10912 of the Water Code, that may supply water for
a subdivision.
(4) "Projected water demand associated with the subdivision" means
the projected water demand associated with the subdivision based on
physical characteristics of the subdivision, including, but not
limited to, lot size and use, water using fixtures, current local
ordinances, statutory and regulatory requirements, and permanently
fixed extraordinary water conservation measures, as determined by the
public water system.
(5) "Water Conservation Mitigation Fund" means the fund used to
finance conservation measures that would achieve water savings
equivalent to the projected water demand associated with the
subdivision, as determined by the public water system.
(b) (1) The legislative body of a city or county or the advisory
agency, to the extent that it is authorized by local ordinance to
approve, conditionally approve, or disapprove the tentative map,
shall include as a condition in any tentative map that includes a
subdivision a requirement that a sufficient water supply shall be
available or that sufficient water supplies will be made available
through a Water Conservation Mitigation Fund held by the public water
system. The amount of funding needed for voluntary participation by
the subdivision applicant in the Water Conservation Mitigation Fund
shall be based on offsetting at least 100 percent of the projected
water demand associated with the subdivision, as determined by the
public water system. Proof of the availability of a sufficient water
supply and, where applicable, participation in the Water Conservation
Mitigation Fund shall be requested by the subdivision applicant or
local agency, at the discretion of the local agency, and shall be
based on written verification from the applicable public water system
within 90 days of a request.
(2) If the public water system fails to deliver the written
verification as required by this section, the local agency or any
other interested party may seek a writ of mandamus to compel the
public water system to comply.
(3) If the written verification provided by the applicable public
water system indicates that the public water system is unable to
provide a sufficient water supply that will meet the projected demand
associated with the proposed subdivision, then the local agency may
make a finding, after consideration of the written verification by
the applicable public water system, that additional water supplies
not accounted for by the public water system are, or will be,
available prior to completion of the subdivision that will satisfy
the requirements of this section. This finding shall be made on the
record and supported by substantial evidence.
(4) If the written verification is not provided by the public
water system, notwithstanding the local agency or other interested
party securing a writ of mandamus to compel compliance with this
section, then the local agency may make a finding that sufficient
water supplies are, or will be, available prior to completion of the
subdivision that will satisfy the requirements of this section. This
finding shall be made on the record and supported by substantial
evidence.
(5) The public water system shall include in the written
verification of its assessment of the projected demand associated
with the subdivision its ability or inability to provide a sufficient
water supply. If the public water system bases its assessment of the
projected water demand associated with the subdivision on inclusion
of permanently fixed extraordinary water conservation measures, the
assessment shall be conditioned with appropriate measures to ensure
that the extraordinary water conservation measures will be retained
and that actual long-term water demand associated with the
subdivision will be consistent with the water demand projection. The
conditions shall include adoption of legally enforceable mechanisms,
such as inclusion in covenants, conditions, and restrictions. Water
savings and demand projections associated with permanently fixed
extraordinary water conservation measures may be calculated using the
water savings projections adopted by the California Urban Water
Conservation Council. Water savings and demand projections for
measures for which the California Urban Water Conservation Council
does not have adopted findings shall be based on substantial evidence
in the record.
(6) A public water system may impose a more stringent requirement
than provided for in this section. The public water supplier may
collect fees, pursuant to Section 66014, that are necessary to
provide additional analysis of extraordinary water conservation
measures required by this section.
(c) The applicable public water system's written verification of
its ability or inability to provide a sufficient water supply that
will meet the projected demand associated with the proposed
subdivision as required by subdivision (b) shall be supported by
substantial evidence. The substantial evidence may include, but is
not limited to, any of the following:
(1) The public water system's most recently adopted urban water
management plan adopted pursuant to Part 2.6 (commencing with Section
10610) of Division 6 of the Water Code.
(2) A water supply assessment that was completed pursuant to Part
2.10 (commencing with Section 10910) of Division 6 of the Water Code.
(3) Other information relating to the sufficiency of the water
supply that contains analytical information that is substantially
similar to the assessment required by Section 10635 of the Water
Code.
(d) When the written verification pursuant to subdivision (b)
relies on projected water supplies that are not currently available
to the public water system, to provide a sufficient water supply to
the subdivision, the written verification as to those projected water
supplies shall be based on all of the following elements, to the
extent each is applicable:
(1) Written contracts or other proof of valid rights to the
identified water supply that identify the terms and conditions under
which the water will be available to serve the proposed subdivision.
(2) Copies of a capital outlay program for financing the delivery
of a sufficient water supply that has been adopted by the applicable
governing body.
(3) Securing of applicable federal, state, and local permits for
construction of necessary infrastructure associated with supplying a
sufficient water supply.
(4) Any necessary regulatory approvals that are required in order
to be able to convey or deliver a sufficient water supply to the
subdivision.
(e) If there is no public water system, the local agency shall
make a written finding of sufficient water supply based on the
evidentiary requirements of subdivisions (c) and (d) and identify the
mechanism for providing water to the subdivision.
(f) In making any findings or determinations under this section, a
local agency, or designated advisory agency, may work in conjunction
with the project applicant and the public water system to secure
water supplies sufficient to satisfy the demands of the proposed
subdivision. If the local agency secures water supplies pursuant to
this subdivision, which supplies are acceptable to and approved by
the governing body of the public water system as suitable for
delivery to customers, it shall work in conjunction with the public
water system to implement a plan to deliver that water supply to
satisfy the long-term demands of the proposed subdivision.
(g) The written verification prepared under this section shall
also include a description, to the extent that data is reasonably
available based on published records maintained by federal and state
agencies, and public records of local agencies, of the reasonably
foreseeable impacts of the proposed subdivision on the availability
of water resources for agricultural and industrial uses within the
public water system's service area that are not currently receiving
water from the public water system but are utilizing the same sources
of water. To the extent that those reasonably foreseeable impacts
have previously been evaluated in a document prepared pursuant to the
California Environmental Quality Act (Division 13 (commencing with
Section 21000) of the Public Resources Code) or the National
Environmental Policy Act (Public Law 91-190) for the proposed
subdivision, the public water system may utilize that information in
preparing the written verification.
(h) 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. Nothing in
this subdivision is intended to modify state law with regard to
groundwater rights.
(i) This section shall not apply to any residential project
proposed for a site that is within an urbanized area and has been
previously developed for urban uses, or where the immediate
contiguous properties surrounding the residential project site are,
or previously have been, developed for urban uses, or housing
projects that are exclusively for very low and low-income households.
(j) The determinations made pursuant to this section shall be
consistent with the obligation of a public water system to grant a
priority for the provision of available and future water resources or
services to proposed housing developments that help meet the city's
or county's share of the regional housing needs for lower income
households, pursuant to Section 65589.7.
(k) The County of San Diego shall be deemed to comply with this
section if the Office of Planning and Research determines that all of
the following conditions have been met:
(1) A regional growth management strategy that provides for a
comprehensive regional strategy and a coordinated economic
development and growth management program has been developed pursuant
to Proposition C as approved by the voters of the County of San
Diego in November 1988, which required the development of a regional
growth management plan and directed the establishment of a regional
planning and growth management review board.
(2) Each public water system, as defined in Section 10912 of the
Water Code, within the County of San Diego has adopted an urban water
management plan pursuant to Part 2.6 (commencing with Section 10610)
of the Water Code.
(3) The approval or conditional approval of tentative maps for
subdivisions, as defined in this section, by the County of San Diego
and the cities within the county requires written communications to
be made by the public water system to the city or county, in a format
and with content that is substantially similar to the requirements
contained in this section, with regard to the availability of a
sufficient water supply, or the reliance on projected water supplies
to provide a sufficient water supply, for a proposed subdivision.
(l) Nothing in this section shall preclude the legislative body of
a city or county, or the designated advisory agency, at the request
of the applicant, from making the determinations required in this
section earlier than required pursuant to subdivision (b).
(m) Nothing in this section shall be construed to create a right
or entitlement to water service or any specific level of water
service.
(n) Nothing in this section is intended to change existing law
concerning a public water system's obligation to provide water
service to its existing customers or to any potential future
customers.
(o) Any action challenging the sufficiency of the public water
system's written verification of a sufficient water supply shall be
governed by Section 66499.37.
(p) When the written verification pursuant to subdivision (b)
relies on voluntary participation in the Water Conservation
Mitigation Fund held by the by the public water system, the written
verification shall include an assessment by the public water system
of funds needed for the public water system to implement water
conservation measures that offset at least 100 percent of the
projected water demand associated with the subdivision and proof that
the funds have been voluntarily deposited in a Water Conservation
Mitigation Fund held by the public water system. The public water
system's assessment of funds shall include identification and
quantification of the water savings resulting from the water
conservation measures that the public water system will implement to
offset at least 100 percent of the projected water demand associated
with the subdivision.
(q) For purposes of a Water Conservation Mitigation Fund held by a
public water system, the public water system shall be required to
expend all funds from the Water Conservation Mitigation Fund on water
conservation measures that will offset at least 100 percent of the
projected demand associated with the subdivision. The expenditures
may be made within the subdivision or elsewhere within the service
area of the public water supplier, at its discretion.
(1) Not less than ____percent of the proceeds from the Water
Conservation Mitigation Fund shall be directed to water conservation
programs in any disadvantaged community, as defined in Section 75005
of the Public Resources Code, within the service area of the public
water system.
(2) The public water system shall be prohibited from using any
funds from the Water Conservation Mitigation Fund to supplant funding
for water conservation programs required by existing law or paid for
by existing customers through water rates and surcharges.
(3) The public water system shall be prohibited from using any
funds from the Water Conservation Mitigation Fund to comply with
requirements of the California Urban Water Conservation Council
Memorandum of Understanding, except where funds are directed to
disadvantaged communities.
(4) The governing body of a public water system shall determine,
after a public hearing, that the funds deposited in the Water
Conservation Mitigation Fund do not supplant funds for water
conservation programs required by existing law, paid for by existing
customers through water rates and surcharges, or that are required
for participation in the California Urban Water Conservation Council.
(5) Actions for which the public water supplier may use water
conservation mitigation funding must be quantifiable, verifiable,
have a planned completion date that is concurrent with when the
buildings within the subdivision will require service, and have a
life expectancy of at least 20 years. These actions include all of
the following:
(A) High-efficiency toilet replacements.
(B) Faucet aerators.
(C) Prerinse spray valves.
(D) High-efficiency washing machines.
(E) Weather-based "smart" timers.
(F) Rotator spray heads.
(G) Cash for grass programs.
(H) Landscape rebates.
(I) Single-family high water use notifications.
(J) Home-leak detection kits.
(K) Water brooms.
(L) High-efficiency commercial dishwashers.
(M) Cooling tower conductivity controllers.
(N) X-ray film processor recirculation systems.
(O) Connectionless food steamers.
(P) Steam sterilizers.
(Q) Dry vacuum pumps.
(R) Commercial ice machine machines
.
(S) School toilet leak detection.
(T) Water recycling.
(U) Advanced (automated) metering systems.
(V) Stormwater capture, graywater systems, and groundwater
treatment.
(W) Other water efficiency measures for which substantial evidence
demonstrates the measure will achieve a quantifiable reduction in
demand.
(r) Pursuant to Part 2.6 (commencing with Section 10610) of
Division 6 of the Water Code, the public water system shall do all of
the following:
(1) Document all expenditures from the water conservation
mitigation funding, if the public water system holds a Water
Conservation Mitigation Fund, in its Urban Water Management
Plan urban water management plan and confirm
that the water conservation mitigation funding was not used to
supplant funding for water conservation programs required by existing
law, paid for by existing customers through water rates and
surcharges, or that are required for participation in the California
Urban Water Conservation Council.
(2) Document the measured annual water use of each subdivision
pursuant to this section.
(3) Calculate the water savings attributable to the water
conservation measures financed by the water conservation mitigation
funding from each subdivision.
(4) In the event that the calculated water savings in subdivision
(q) do not equal or exceed the measured water demand in subdivision
(b) over a five-year period, the public water system shall include in
its Urban Water Management Plan urban
water management plan a schedule of actions designed to
achieve the savings necessary to offset 100 percent of the actual
demand of the subdivision.
SEC. 2. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because a local agency or school district has the
authority to levy service charges, fees, or assessments sufficient to
pay for the program or level of service mandated by this act, within
the meaning of Section 17556 of the Government Code.