BILL ANALYSIS Ó
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: SB 267 HEARING DATE: April 12, 2011
AUTHOR: Rubio URGENCY: Yes
VERSION: March 17, 2011 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Water Supply Planning: Renewable Energy Plants
BACKGROUND AND EXISTING LAW
In 2001, the Legislature passed, and the Governor signed SB 610
(Costa) and SB 221 (Kuehl). Collectively, these two bills are
also known as the "show us the water" bills. The purpose of
these bills, as noted in the findings for SB 610, was "to
strengthen the process pursuant to which local agencies
determine the adequacy of existing and planned future water
supplies to meet existing and planned future demands on those
water supplies."
To assist local governments in deciding whether to approve
projects, SB 610 requires a "water supply assessment" (WSA)
whenever a city or county determines a proposed "project" is
subject to CEQA. The WSA must be included in any CEQA document
prepared for the project. In turn, a provision of CEQA requires
compliance with the SB 610 requirements.
Under Water Code §10912(a), a "project" requiring a WSA is any
of the following:
(1)A proposed residential development of more than 500 dwelling
units.
(2)A proposed shopping center or business establishment
employing more than 1,000 persons or having more than 500,000
square feet of floor space.
(3)A proposed commercial office building employing more than
1,000 persons or having more than 250,000 square feet of floor
space.
(4)A proposed hotel or motel, or both, having more than 500
rooms.
(5)A proposed industrial, manufacturing, or processing plant, or
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industrial park planned to house more than 1,000 persons,
occupying more than 40 acres of land, or having more than
650,000 square feet of floor area.
(6)A mixed-use project that includes one or more of the projects
specified in this subdivision.
(7)A project that would demand an amount of water equivalent to,
or greater than, the amount of water required by a 500
dwelling unit project.
The WSA is prepared by the public water system that may provide
water for the project, or, if the city or county identifies no
such public water system, the city or county prepares the WSA.
The WSA is required to include a discussion regarding whether
the total projected water supplies (during normal, single dry,
and multiple dry water years) over the next 20-years will meet
the projected water demand associated with the proposed project,
over and above that required for existing and planned future
uses. Further, when a water supply for a proposed project
includes groundwater, the WSA must include additional
information about the sufficiency of the groundwater supply.
PROPOSED LAW
This bill would:
(1)Exclude renewable energy plants from the definition of a
"project" subject to the provisions of SB 610, if that
renewable energy plant would demand less water than the amount
of water required by a 500 dwelling unit project. This
exclusion would also apply to a renewable energy plant pending
approval on the effective date of this bill.
(2)Declare that the bill is an urgency measure, "In order to
ensure renewable energy projects are approved in a timely
manner."
ARGUMENTS IN SUPPORT
According to the author, "As California moves toward requiring
33% of our energy to be from renewable sources, we must do
everything possible to reach this important goal. SB 267
addresses a recent court decision that has caused proposed
renewable energy facilities to evaluate project water needs
beyond what is currently required in CEQA, just because they
will occupy 40 acres or more. Wind and solar photovoltaic
renewal energy projects do not use significant water and should
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not be required to study water use above and beyond CEQA. To
apply a requirement that is clearly intended for large water
users will stymie the state's ongoing efforts to encourage
renewable energy projects."
ARGUMENTS IN OPPOSITION
According to the Planning and Conservation League and the Sierra
Club, the "most significant concern is the exemption of a
renewable energy project from the water supply assessment
process. Regardless of the possible noble intentions of a
project, it is unjust and a disservice to the existing community
to approve a project without assessing the impact to local water
supply. With California's water supply under intense pressure
from climate change, increasing population and development, the
water supply assessment process is the best safeguard to ensure
a community's vital water supply is not exhausted due to poor
planning."
COMMENTS
1. What Are Renewable Energy Plants? The bill does not define
"renewable energy plants." On first impression, it would seem
to refer to plants meeting the requirements of the California
Renewables Portfolio Standard Program established in the Public
Utilities Code. However, conversations with the supporters and
the author's office suggest that the real focus is on
photovoltaic and wind energy facilities. If so, this bill should
be amended to reflect that more narrow focus.
2. Renewable Energy Does Not Equal No Water . As noted in a
fairly recent New York Times article, "Here is an inconvenient
truth about renewable energy: It can sometimes demand a huge
amount of water." However, that generally cannot be said for
photovoltaic and wind energy facilities. A recent Congressional
Research Service report estimates the average total water
intensity of photovoltaics is 4 gal/MWh and for wind it drops to
0 gal/MWh - this compares to concentrated solar power - solar
towers with an intensity of 840 gal/MWh and enhanced geothermal
at 585 gal/MWh. Still, there may be additional water demands
for, dust suppression, fire prevention, and on site water uses
by employees.
3. How Would We Know? Courts have noted that the purpose of a
WSA is "to ensure that local land use authorities will
thoroughly consider the availability of water supplies before
approving major new developments, and to respond to ... CEQA
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litigation concerning water supply."
The author of SB 610 picked the criteria for analysis that he
did to ensure that cities and counties would have a clear guide
for when to ask for a WSA. A city or county would not be
expected to be able to determine whether a project proponent has
accurately described of the water demands of a proposed project
relative to that of a 500 dwelling unit project. But it would
be able to determine, for example whether or not a proposed
industrial park planned to house more than 1,000 persons, occupy
more than 40 acres of land, or have more than 650,000 square
feet of floor area, and thereby determine whether a WSA is
needed or not.
With a WSA, a city or county would then be in a position to know
whether or not the water demands of a project met the CEQA
standard of a significant impact that required further action.
4. Camel's Nose? SB 610 was industry neutral, focused instead
on characteristics of a proposed land use. This bill would
exempt a specific type of industry that would demand less water
than the amount of water required by a 500 dwelling unit project
from having to complete a WSA. It is conceivable, if not
likely, that there are other types of projects or industries
that might seek a specific exemption; their argument being that
they too use less water than a 500 dwelling unit project and so
should similarly be exempt. Granting numerous exemptions might
defeat the original logic of SB 610; that of establishing a few
simple and general characteristics of projects that would
reflect the types of projects that would have a reasonable
potential to have a significant environmental impact. To
discourage rampant expansion of industry specific exemptions, it
might make sense to amend the bill to limit the exemption to
proposed projects that anticipated using significantly less
water than that of a 500 dwelling unit project.
5. What's The Rush? This bill is an urgency measure, and the
exemption granted by this bill would apply to any renewable
energy plant pending approval on the effective date of this
bill. This begs the questions, what is it about this bill that
is so time sensitive? Supporters offer at least three reasons.
Avoiding litigation. In the aftermath of an appellate court
decision clarifying the application of the 40 acre definition
of a "project" under SB 610, opponents of solar projects in
San Diego County and San Bernardino County are challenging the
projects on the basis that the projects do not comply with
CEQA because there was no WSA.
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Expediting Process. WSA's can be complex, particularly where
groundwater is used and no urban water management plan has
been prepared (typically the case because renewable energy
projects are usually in rural locales.) In addition to higher
costs, preparing a WSA can add several months to getting final
approval for a project.
Expiring Tax Credits. To qualify for the Production Tax
Credit for Renewable Energy, wind projects must be placed in
service by 12/1/2012.
6. Will It Work? While an initial review of available studies
suggest that at least some photovoltaic and wind energy
facilities do indeed seem to use little water, industry specific
exemptions have not been tried in the context of SB 610
requirements. Consequently, it might make sense to impose a
sunset on the exemption. In addition to providing the
Legislature with an opportunity to reevaluate the exemption at
some point in time, it would also provide an incentive to bring
on additional photovoltaic and wind energy facilities sooner
rather than later.
SUGGESTED AMENDMENTS
The following amendments reflect suggestions made in comments 1,
4, and 6
AMENDMENT 1: On page 3, line 6, after "(5)" insert "(A)"
AMENDMENT 2: On page 3, line 9, delete ", except a
renewable energy plant not" and insert: "."
AMENDMENT 3: On page 3, delete lines 10 through 14
inclusive, and insert:
(B) Notwithstanding subparagraph (A), a proposed
photovoltaic or wind energy facility approved on or after
the effective date of the amendments made to this section at
the 2011-2012 Regular Session is not a project if that
facility would demand an amount of water equivalent to or
less than the amount required by a 250 dwelling unit
project. This subparagraph will remain in effect until only
until December 31, 2016, and as of that date is repealed,
unless a later enacted statute, that is enacted before
December 31, 2016, deletes or extends that date.
SUPPORT
CalWEA
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County of Kern
OPPOSITION
Planning and Conservation League
Sierra Club
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