BILL NUMBER: AB 1408 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 30, 2009
AMENDED IN ASSEMBLY APRIL 23, 2009
INTRODUCED BY Assembly Member Krekorian
( Coauthors: Assembly Members
Skinner and Torlakson )
( Coauthor: Senator Hancock
)
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 Demand 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, 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, to include as a condition in any tentative map
that includes a subdivision a requirement that the subdivision have a
sufficient water supply available or that sufficient water supplies
will be made available through a Water Conservation
Demand 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 Demand
Mitigation Fund 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 to expend all funds in the
Water Conservation Demand 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 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. This act shall be known as the Smart
Water Community Development Act.
SEC. 2. (a) The Legislature finds and declares all
of the following:
(1) Water supply reliability is vital to sustain California's
economy, agricultural industry, environment, rural communities, and
residents, all of which continue to face the possibility of severe
water cutbacks during water shortage periods.
(2) Increasingly, California communities are finding that
declining water supply reliability is compromising their ability to
approve water supply verifications for new development.
(3) California's water agencies are more frequently required to
impose water rationing and water rate increases on their residential
and business customers due to reduced water supply reliability.
(4) Water supply reliability for all regions of the state has been
declining in recent years due to climate change, ecosystem crisis in
the Sacramento-San Joaquin Delta and other waterways, extended
drought in the Colorado River Basin, contamination of groundwater
basins, and increasing demand of water to sustain growth in
California.
(5) In 2006, the Department of Water Resources issued a report on
climate change and California's water resources, concluding that
climate change is likely to continue to have significant effects on
the state's water supply projects and the Sacramento-San Joaquin
Delta.
(6) As water supply reliability decreases across the state, every
effort should be taken to meet the consumptive needs of the state and
protect the environment.
(7) Disadvantaged communities in California will be
disproportionately impacted by reduced water supply reliability due
to the lack of efficient water appliances and infrastructure, as well
as a reduced ability to pay increased rates for water supplies.
(8) With California's population expected to reach nearly 60
million people by the year 2050, the state must accommodate millions
of more residents in coming decades.
(9) If unmitigated, new water demands will result in further
decreased water supply reliability, significant environmental
impacts, and additional financial burdens to existing residents and
business.
(10) There are a variety of measures available to secure and
restore water supply reliability and to meet the need for new growth
within California.
(11) Bulletin 160-05, the California Water Plan update, projects
that urban water conservation can reduce water demand by two to three
million acre-feet of water per year by the year 2030.
(12) Recycled water, stormwater capture, groundwater treatment,
grader, and infrastructure replacement have also been identified as
potential water supply reliability management tools.
(13) New flexible tools that ensure California communities can
accommodate new development, while also increasing water supply
reliability and avoiding the significant environmental and economic
impacts associated with reduced water supply reliability, will
benefit the people, economy, and environment of California.
(14) With conservation measures, the water demand of new homes can
be reduced by a significant percentage. New homeowners should be
made aware of water conservation features of their new homes and
should fully understand any commitment to maintain those conservation
features. For new developments, covenants, conditions, and
restrictions, also known as "CC&RS," on homes provide a method for
ensuring the original and subsequent purchasers of those homes are
informed of their obligation to retain the approved onsite water
conservation measures so the anticipated water conservation savings
are realized and maintained over time.
(b) It is the intent of the Legislature to provide additional
options that allow communities to access the potential of water
conservation and enhanced local water development when identifying
water supplies for new development.
SECTION 1. SEC. 3. 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 anticipated water demand
associated with the subdivision that is determined by the
public water system and is 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. not limited to,
lot size and use, current water conservation standards required by
local ordinance or state regulation, and optional water conservation
measures that exceed all applicable local and state standards and
that are agreed to by the public water system and the subdivision
applicant.
(5) "Water conservation measures" means measures for which
substantial evidence in the record demonstrates that the measures
will result in water efficiency and have a life expectancy of at
least 20 years. Substantial evidence may include, but is not limited
to, water efficiency projections calculated by the California Urban
Water Conservation Council or data that demonstrates that water
efficiencies are quantifiable and verifiable.
(6) "Water Demand Mitigation Fund" means the fund used to finance
water conservation measures implemented by the public water system
and funded by the subdivision applicant in sufficient amount to
offset 100 percent of the projected water demand associated with the
subdivision. Participation in the Water Demand Mitigation Fund shall
be at the mutual agreement of the public water system and the
subdivision applicant.
(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 Demand
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 water system. Proof of the
availability of a sufficient water supply and, where applicable,
participation in the Water Conservation
Demand 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. The public water
system and the applicant may mutually agree to demonstrate that
sufficient water will be made available for a subdivision consistent
with these requirements through implementation of water conservation
measures achieved with participation by the subdivision applicant in
a Water Demand Mitigation Fund. When this option is exercised, the
subdivision applicant shall enter into an agreement with the public
water system to mitigate demand associated with the subdivision by
depositing funds into a Water Demand Mitigation Fund held by the
public water system. The amount of funding required for participation
by the subdivision applicant in the Water Demand Mitigation Fund
shall be determined by the public water system and be based on
offsetting at least 100 percent of the projected water demand
associated with the subdivision. The funding required for
participation in the Water Demand Mitigation Fund shall not exceed
the amount necessary to offset the actual water demand impact of the
subdivision.
(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 verification of 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.
water supply an assessment of the projected water
demand associated with the subdivision.
(6) If the public water system bases its assessment of the
projected water demand associated with the subdivision on inclusion
of optional water conservation measures that exceed all applicable
local and state standards, the assessment shall be conditioned with
appropriate measures to ensure that the optional water conservation
measures will be retained by future homeowners and that actual
long-term water demand associated with the subdivision will be
consistent with the water demand projection. These conditions shall
be included in the covenants, conditions, and restrictions (CC&Rs),
or in an equivalent legally enforceable mechanism.
(7) The conditions referred to in paragraph (6) may be enforced by
the imposition of financial penalties for any violation of them,
pursuant to the existing authority of a public water system to
enforce its ordinances.
(8) A public water system shall make a determination of the
projected water savings for the water conservation measures that
exceed all applicable local and state standards that will be
incorporated at the subdivision. The public water system's
determination of projected water savings shall be made based on
substantial evidence in the record. Substantial evidence may include,
but is not limited to, water efficiency projections calculated by
the California Urban Water Conservation Council, or data that
demonstrates that water efficiencies are quantifiable and verifiable.
(9) A public water system shall calculate the total projected
water savings associated with the optional water conservation
measures required by local ordinance or state regulation and
conservation measures that exceed all applicable local and state
standards. The calculation shall be based on substantial evidence in
the record. A public water system shall include the total projected
water savings for the conservation measures, as determined in
subparagraph (8), in the projected water demand associated with the
subdivision.
(6)
(10) 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
Demand 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 Demand
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
Demand Mitigation Fund held by a public water system, the
public water system shall be required to expend all funds from the
Water Conservation Demand Mitigation
Fund on water conservation measures that will offset at least 100
percent of the projected demand associated with the subdivision.
Water conservation measures shall be chosen that are the least
expensive and most cost-effective means to yield the applicable
amount of water. 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 ____ 40 percent of
the proceeds from the Water Conservation
Demand 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 Demand
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 Demand
Mitigation Fund to comply with requirements of the California
Urban Water Conservation Council Memorandum of Understanding, except
where funds are directed to disadvantaged communities. The
public water system may use funds from the Water Demand Mitigation
Fund to expand existing water conservation programs beyond the
requirements of the California Urban Water Conservation Council
Memorandum of Understanding.
(4) The governing body of a public water system shall determine,
after a public hearing, that the funds deposited in the Water
Conservation Demand Mitigation Fund do not
supplant funds for water conservation programs required by
existing law, existing water conservation programs
paid for by existing
customers through water rates and surcharges, or that are required
for participation in to meet the
California Urban Water Conservation Council. This determination
may be made at the same hearing in which the governing body considers
approval of the water supply verification.
(5) Actions for which the public water supplier may
shall 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 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.
demand mitigation funding are water conservation measures that
have a planned completion date that is concurrent with when the
buildings within the subdivision will require service. These actions
shall include, but are not limited to, all of the following:
(A) Water efficient appliances.
(B) Water efficient landscapes and irrigation controllers.
(C) Water recycling.
(D) Stormwater capture, grey water systems, and groundwater
treatment.
(E) Any other water conservation measure for which substantial
evidence demonstrates will achieve a quantifiable reduction in water
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 Demand Mitigation Fund, in its
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.
(3) Calculate the water savings attributable to both of the
following:
(A) The water conservation measures financed by the water
conservation mitigation funding from each subdivision.
(B) The water conservation measures implemented in the subdivision
that exceed all applicable local and state standards in the absence
of a Water Demand Mitigation Fund.
(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 a schedule of actions designed to
achieve the savings necessary to offset 100 percent of the actual
demand of the subdivision.
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.
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