New California legislation affecting the required water supply analyses that must be made for certain projects subject to CEQA (SB 1262) was signed into law by Governor Brown last fall, and is now effective as of January 1, 2017. The new law amends two existing statutes governing water supply planning for land use development projects – Government Code § 66473.7 and Water Code § 10910 – and attempts to integrate to some extent that existing law governing “written verifications” of sufficient water supply (“WVs”) and “Water Supply Assessments” (“WSAs”) with the State’s landmark Sustainable Groundwater Management Act of 2014 (“SGMA”).

Changes To Government Code § 66473.7

SB 1262 amends Government Code § 66473.7, which governs WVs required for residential subdivisions of more than 500 units or, for small public water systems of fewer than 5,000 service connections, for subdivisions which would increase service connections by 10% or more. It provides that, where a proposed subdivision subject to the law relies in whole or part on groundwater for its supply, additional factors must be considered by a public water system in making its determination of sufficient water supply within the 20-year projection period. For court- or State Water Resources Control Board (“SWRCB”) –adjudicated basins, the factors required to be considered now include the order or decree adjudicating groundwater pumping rights. (See Gov. Code, § 66473.7(a)(2)(E)(i).)

For unadjudicated basins that have been designated as high- or medium-priority pursuant to SGMA, the most recently adopted groundwater sustainability plan (“GSP”) or approved alternative must be considered, or if there is no adopted GSP or approved alternative, the public water system must consider information as to whether the Department of Water Resources (“DWR”) has identified the basin as, or projected it to become, overdrafted under continuation of present management conditions. For unadjudicated basins designated low- or very low- priority, information about whether the DWR has identified or projected the basin as overdrafted must be considered. (§ 66473.7(a)(2)(E)(ii)(I)(II).)

The list of enumerated, statutorily specified types of “substantial evidence” sufficient to support a public water system’s WV has been revised to now also expressly include a groundwater sustainability plan adopted, or alternative approved, pursuant to SGMA. (Gov. Code, § 66473.7(c)(3).)

Changes to Water Code § 10910

Water Code § 10910’s WSA requirements apply to certain large development projects (as specifically defined in § 10912) which a city or county determines are subject to CEQA. Among other requirements, section 10910 provides that at the time the city or county determines whether an EIR or negative (or mitigated negative) declaration is required under CEQA for a project, the city or county shall identify any water system that is or may become a public water system that may supply the project, and request a WSA, which must then generally be provided within 90 days, unless extended by 30 days by agreement between the public water system and the city or county. SB 1262 has revised the water system identification requirement to now include any such water system “whose service area includes the project site and any water system adjacent to the project site ….” (Wat. Code, § 10910(b).)

Under the statute as revised, in addition to all the previously existing requirements for WSAs, if the proposed project’s water supply includes groundwater, the WSA must now also include as part of its informational content: a description of the groundwater basin(s) that will supply the project; for court- or SWRCB- adjudicated basins, a copy of the order or decree determining legal pumping rights; and, for unadjudicated basins designated as high- or medium-priority pursuant to SGMA, whether DWR has identified the basin as being subject to critical conditions of overdraft and whether a groundwater sustainability agency (“GSA”) has adopted a GSP or approved alternative, and, if so, a copy of the same. (Wat. Code, § 10910(f)(2)(A)-(C).) For unadjudicated basins designated low- or very low-priority pursuant to SGMA, the WSA must also now describe the basin(s), but the preexisting substantive content requirements for WSAs with respect to such basins otherwise remain the same.

Finally, SB 1262 adds a final subdivision to the statute stating: “For the purposes of this section [i.e., for purposes of satisfying requirements for WSAs] hauled water is not considered as a source of water.” (Wat. Code, § 10910(i).)