BILL NUMBER: AB 1408INTRODUCED BILL TEXT 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 introduced, 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 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 held by the public water system. 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 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. 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) Forthepurposes 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. (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. (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 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 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.