BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2409
                                                                  Page  1

          Date of Hearing:   March 23, 2010

                   ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
                            Jared William Huffman, Chair
                   AB 2409 (Nestande) - As Amended:  April 6, 2010
           
          SUBJECT  :   Urban Water Suppliers: Water Shortage Contingency  
          Analysis

           SUMMARY  :   Requires water contingency analyses included in urban  
          water management plans to analyze and define water features  
          artificially supplied with water, such as ponds, lakes,  
          waterfalls and fountains, separately from swimming pools and  
          spas.

           EXISTING LAW  :  

          1)Requires Urban Water Management Plans to include an urban  
            water shortage contingency analysis, with required elements  
            identifying stages of actions to be taken in response to water  
            supply shortages, and including mandatory actions to be taken  
            against certain water use practices during water shortages.

          2)Requires the Department of Water Resources (DWR) to update the  
            state model water efficient landscaping ordinance through  
            regulation by January 1, 2009, and requires all local agencies  
            by January 1, 2010 to adopt the updated model ordinance or  
            another ordinance at least as effective.  Makes the updated  
            model ordinance effective within the jurisdiction of a local  
            agency if the local agency has not adopted it's own ordinance  
            by January 1, 2010.  The model ordinance defines water  
            features to include ponds, lakes, waterfalls, fountains,  
            artificial streams, spas and swimming pools (where water is  
            artificially supplied).

          3)Requires a 20% reduction in urban per capita water use in  
            California by December 31, 2020.  Requires the state to make  
            incremental progress towards this goal by reducing per capita  
            water use by at least 10% on or before December 31, 2015.   
            Requires each urban retail water supplier to develop urban  
            water use targets and an interim urban water use target.

           FISCAL EFFECT  :   Unknown

           COMMENTS :








                                                                  AB 2409
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           Background  :  The Water Conservation in Landscaping Act, (AB 325  
          of 1990), required DWR to appoint and work with an advisory task  
          force to develop a state model local water efficiency in  
          landscaping ordinance, and required each local agency to adopt a  
          water efficiency in landscaping ordinance by January 1, 1993, or  
          to adopt findings as to why an ordinance was unnecessary.  AB  
          2717 (Laird), enacted in 2004, requested the California Urban  
          Water Conservation Council to convene a stakeholder workgroup to  
          make recommendations on water efficiency in urban landscaping.   
          The task force report was released in December of 2005 and  
          contained 43 recommendations.  AB 1881 (Laird), enacted in 2006,  
          enacted a number of the recommendations of the task force,  
          required DWR to update the model ordinance by January 1, 2009 by  
          regulation, and required local agencies by January 1, 2010 to  
          adopt the updated model ordinance or another ordinance at least  
          as effective in achieving water conservation and efficiency.  If  
          a local agency does not adopt its own ordinance by January 1,  
          2010, then the model ordinance automatically takes effect within  
          that local jurisdiction.  

          DWR's new regulations updating the model water efficiency  
          landscaping ordinance became effective on September 10, 2009,  
          and are contained in the California Code of Regulations, Title  
          23,  490-495.1.  The regulations, among other things, require  
          applicants for new construction and landscape rehabilitation  
          projects to submit a landscaping documentation package to the  
          local agency.  The landscaping documentation package is required  
          to include specified elements, including a water budget  
          calculation, with a maximum applied water allowance and an  
          estimated total water use.  

          Section 491(qqq) of the regulations defines "water feature" as  
          follows:

          Water feature means a design element where open water performs  
          an aesthetic or recreational function.  Water features include  
          ponds, lakes, waterfalls, fountains, artificial streams, spas  
          and swimming pools (where water is artificially supplied).  The  
          surface area of water features is included in the high water use  
          hydrozone of the landscape area.  Constructed wetlands used for  
          on-site wastewater treatment or stormwater best management  
          practices that are not irrigated and used solely for water  
          treatment or stormwater retention are not water features and,  
          therefore, are not subject to the water budget calculation.








                                                                  AB 2409
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          Water for urban landscaping comprises approximately 1/3rd of  
          urban water use, or 3 million acre feet of water annually.  The  
          Legislature last year in SBX7 7 (Steinberg) enacted a  
          requirement that the state reduce statewide urban water use by  
          20% by 2020.

           Purpose  :  The specific concern which this bill seeks to address  
          is the fear that swimming pools and spas could be ordered to be  
          shut down and drained if local agencies tie their drought  
          response initiatives to the updated model water efficiency  
          landscaping ordinance now in effect through much of the state.   
          The sponsors indicate that requiring pools and spas to be  
          drained for an extended period of time may cause damage to the  
          pool.  They also assert that the legislative history of AB 1881,  
          and the goals and objectives of the law, do not show any  
          evidence of legislative intent that pools and spas be included  
          within the model ordinance.

          This bill, as introduced, would have statutorily invalidated a  
          regulation adopted by DWR in updating the model water efficient  
          landscaping ordinance.  The concerns raised by the sponsors of  
          this bill relate primarily to the actions that local agencies  
          may require as part of their drought response initiatives.  The  
          model water efficiency in landscaping ordinance is not focused  
          specifically on drought response, but relates more to the design  
          of new construction and landscape rehabilitation projects.  From  
          a policy perspective, an argument could be made that it is  
          appropriate that pools and spas be included in the model water  
          efficiency ordinance for purposes of water budgeting, if the  
          water budgeting element is to accurately reflect all anticipated  
          outdoor urban water use, particularly in light of the  
          Legislature's overall goals to reduce urban water use.

          To more directly address the concern of the sponsors, without  
          statutorily amending DWR's model water efficiency ordinance  
          regulations, this bill as amended focuses more narrowly on  
          concerns with local requirements that may be imposed as part of  
          a drought response initiative.  As amended, this bill requires  
          water contingency analyses developed as part of urban water  
          management plans to analyze and define "water features"  
          separately from pools and spas.  This approach addresses the  
          concern that agencies not simply lump these all together, when  
          pools and spas may warrant different considerations, but does  
          not prohibit a local agency from requiring appropriate water  








                                                                  AB 2409
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          conservation measures related to either water features or pools  
          and spas.            

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Spa & Pool Industry Education Council (sponsor)

           Opposition 
           
          Planning and Conservation League (to prior version)
          Sierra Club California (to prior version)
           
          Analysis Prepared by  :    Diane Colborn / W., P. & W. / (916)  
          319-2096