RBF Project Experience

California Senate Bill 221 (SB 221) and Senate Bill 610 (SB 610)

Background

Providing proof of available water supply is nothing new to water-conscious California. Senate Bill (SB) 901 was passed in 1995 requiring local planning agencies to consider the availability of water when approving a new project.

According to the original bill, as part of the California Environmental Quality Act (CEQA), a Public Water Supplier (PWS) with more than 3,000 service connections was to provide a water supply assessment – but if not provided in 30 days, the lead agency must assume that the water purveyor has nothing to submit (where there could be any number of reasons for not having the assessment done). The bill provided little direction for the water supply assessment other than stating whether the water needs of the proposed project could be met by the supplies currently available. Even then, planning agencies retained the authority to approve a project when water availability was not firmly established. Lastly, the assessment was only solicited if the project required an EIR, involved adopting/changing a specific or general plan and resulted in an increase in population density or building intensity.

These loopholes (along with numerous lawsuits) afford the backdrop for Senate Bill Nos. 221 and 610, approved October 9, 2001. SB 610 primarily affects the Water Code and SB 221 principally applies to the Subdivision Map Act.

The following questions and answers are provided to offer a greater understanding of these Bills and their impact on the development community.

Q: What are SB 221 and SB 610?

A: In recent years, local authorities approved several large development projects without what some perceive as having adequately addressed water availability. These two bills attempt to preclude projects from being approved without specific evaluations being performed and documented by the local water provider proving that water is available.

Q: Water assessments aren't new, what’s the difference now?

A: Since SB 910 was passed in 1995, land use agencies were required to consider water supply when approving a project. Historically, public water suppliers (PWS) provided “will serve” letters to developers to meet this requirement. The new legislation requires a more formal and detailed analysis, including answers to:

• Where is the water coming from?


• Has the PWS accounted for the demands in its planning documents?


• What right does the water purveyor have to the water?


• What is the condition of regional groundwater aquifers?


• Who else is competing for the water?

Q: How has the development process been changed?

A: These laws alter the development process by inserting the PWS into the project approval chain of events. The land use agency must formally request the evaluation, and the PWS typically has 90 days to create and approve the requisite supply evaluations.

Q: How do SB 221 and SB 610 fit into the law?

A: SB 221 applies to the Subdivision Map Act, conditioning a tentative map on the applicant verifying that the public water supplier has “sufficient water supply” available to serve it. SB 610 applies to the Water Code, augmenting the CEQA process to definitively establish water availability.

Q: To whom does SB 610 apply?

A: Of the two bills, SB 610 has the broadest applicability. All “projects” that meet any of the following criteria require the assessment:

• A proposed residential development of more than 500 dwelling units


• A proposed shopping center or business establishment employing more than 1,000 persons or having more than 500,000 ft2 of floor space


• A proposed commercial office building employing more than 1,000 persons or having more than 250,000 ft2 of floor space


• A proposed hotel or motel, or both, having more than 500 rooms


• A proposed industrial, manufacturing, or processing plant, or industrial park planned to house more than 1,000 persons, occupying more than 40 acres of land, or having more than 650,000 ft2 of floor area


• A mixed-use project that includes one or more of the projects specified in this subdivision


• 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

Q: What does SB 610 require a PWS to do?

A: The PWS must prepare and approve a “water supply assessment” that contains three parts:

1. Explicit identification of existing and anticipated water supply entitlements, water rights and water service contracts, demonstrated by contracts, CIPs and applicable permits.


2. If no water has been received by the source identified to supply the development, other competing purveyors that receive from the new source must be identified.


3. If groundwater is a proposed supply, factors such as adjudicated rights, groundwater management practices and historical pumping must be presented to establish proper use of the resource.

The main planning tool in creating the assessment is the PWS’s Urban Water Management Plan (UWMP). If the demands expected from the development are accounted for in the UWMP, it may be used – in whole or in part – to establish supply availability under normal and drought conditions. If the project contains new demands, where the new water supply will come from must be stated.

The assessment must be approved at a regular or special meeting of the PWS governing board.

Q: To whom does SB 221 apply?

A: This bill applies to any “subdivision,” defined as:

• A proposed residential development of more than 500 dwelling units, if the PWS has more than 5,000 service connections


• Any proposed development that increases connections by 10% or more, if the PWS has fewer than 5,000 connections


• Does NOT apply to any residential project proposed for a site that is within an urbanized area and has been previously developed for urban uses


• Does NOT apply to housing projects that are exclusively for very low and low-income households

Q: What does SB 221 require a developer or water supplier to do?

A: The PWS is required to provide “written verification” of “sufficient water supplies.” This bill defines sufficiency in a different manner than SB 610, by requiring consideration of the following factors:

• The availability of water over the past 20 years


• The applicability of any urban water shortage contingency analysis prepared per Section 10632 of the Water Code


• The reduction in water supply allocated to a specific use by an adopted ordinance


• The amount of water that can be reasonably relied upon from other water supply projects, such as conjunctive use, reclaimed water, water conservation and water transfer

The written verification must also provide evidentiary proof of the water supply, and the standard for that proof is largely similar to SB 610. In most cases, the water supply assessment prepared under SB 610 will meet that requirement.

Q: Can these water supply evaluations prohibit a city or county from approving a project?

A: No. But the approving agency must recognize that the SB 610 water supply assessment must be included in its environmental document for the project. For SB 221, if a written verification concludes that water supplies are insufficient, the approving agency can either find that water sources not considered by the PWS will be available or waive the condition imposed by SB 221.

Q: What can RBF Consulting do to assist my organization with SB 221 and SB 610 related issues?

RBF’s expertise in water resources, planning and land development uniquely positions us to assist and guide all parties involved through this new process.

• We have helped both public and private clients identify if water evaluations are necessary and facilitated discussions with water suppliers. We specialize in crafting strategies to minimize efforts required of the PWS.


• We produced water supply assessments and written verifications for water suppliers.


• RBF’s experience is particularly valuable when a proposed project increases the projected water demands of a PWS. We have worked with several public agencies to facilitate the evaluation of new demands and certification of water availability. This certification often represents the largest hurdle required to prove sufficient water supply exists.


• Not only did SB 610 modify the requirements of a water purveyor’s Urban Water Management Plan (UWMP), these documents became the basis for establishing water supply for a PWS. RBF recognizes this and can produce or modify an UWMP to be of maximum use to an agency, including a template for each of these evaluations.

RBF Relevant Project Experience

Desert Water Agency (DWA)
RBF prepared a SB 610 Water Supply Assessment for a planned development of 1200 homes and a resort hotel. The Report was adopted by the DWA and is included as part of the environmental review of the Project.

Chino Hills
RBF provided consulting services to the City of Chino Hills to assist the city in the lifting of a water moratorium that occurred due to a lack of water supplies. RBF worked with the City to establish a new rate structure, negotiated new inter-district water transfers and developed new, local supplies to provide a permanent water supply to the City to meet both existing deficits and future growth.

City of Tracy - Tracy Allocation Group (TAG)
RBF represented a consortium of developers faced with a limited water supply, which threatened build-out of their Specific Plan. RBF worked with the developers and the City to identify new sources of water and interim management plans that allowed the city to continue to provide construction permits for the developers to build while the permanent water supply was being constructed.

Rancho California Water District (RCWD)
RBF prepared the Water Master Plans’ and Urban Water Management Plan for RCWD and has most recently been contracted with to assist the water district in achieving compliance with California Senate Bills 221 and 610. A recent Water Study Assessment (WSA) investigation involving RCWD was actually initiated by a neighboring water district and required a statement of Water supply Availability (WSA) from RCWD. RBF determined that the portion of the project within RCWD did not require a separate WSA under the terms set forth in SB 610.

City of Beverly Hills and City of El Segundo
Separately RBF is working with the City of Beverly Hills and the City of El Segundo to develop alternative and independent permanent water sources. These cities are both 100% dependent on MWD imported water and RBF is assisting in the development of local supply scenarios to increase the capacity and reliability. One of these projects is currently under construction utilizing a design/build/operate/finance approach, which RBF also negotiated for the City.