Over the weekend, Governor Brown signed SB 267 into law to facilitate timely approvals for proposed photovoltaic and wind energy generation facilities. Under SB 267 (Rubio), such facilities that have an annual water demand of 75 acre-feet or less are expressly exempted from the requirement to prepare a water supply assessment (WSA). The new law is effective immediately and applies to qualifying projects approved on or after the effective date.
SB 267 expressly exempts photovoltaic or wind energy generation facilities from the definition of a “project” under the WSA statute and the requirement to prepare a WSA if the facility would demand no more than 75 acre-feet of water annually. Notably, the exemption expires after January 1, 2017 unless that date is changed or extended by a later enacted statute.
This is an important new law that will help streamline the documentation process for many renewable energy projects. Notwithstanding, it must be noted that such projects are still subject to the independent – and increasingly stringent – water supply sufficiency standards being applied under the California Environmental Quality Act (CEQA).
The WSA statute – commonly referred to as SB 610 – was enacted in late 2001. It requires cities and counties to obtain a WSA in connection with reviewing certain “projects” under CEQA. Water Code section 10910 establishes what must be included in a WSA, and Section 10912 specifies the types of “projects” that trigger their preparation. Once completed, a WSA must be incorporated into the CEQA analysis. Typically, a WSA is prepared by the retail water supplier that will serve the proposed project. However, if no such agency exists, or if the city or county is the water supplier, the WSA must be prepared by the city or county that is approving the project.
For many years, SB 610 was generally regarded as applying to “larger-size” projects with substantial water demands. Indeed, Water Code section 10912 identifies “projects” such as residential developments of 500 dwelling units or more, hotels or motels with 500 rooms or more, and proposed manufacturing, processing or industrial facilities that would house more than 1,000 people, occupy more than 40 acres or have a floor area of more than 650,000 square feet.
More recently, the reach of SB 610 was refocused in Center for Biological Diversity v. County of San Bernardino (CBD) (2010) 184 Cal.App.4th 1342. In CBD, the Court of Appeal held that a proposed open-air composting project on a 160-acre parcel (with a very minimal water demand) constituted a “project” under Section 10912 and thus required a WSA. The court specifically noted that the project was a processing facility that met the acreage threshold of Section 10912(a)(5) and that SB 610 contained “no limitation pertaining to water usage.” Following CBD, one view was to consider all alternative energy projects as “processing” facilities which, if sited on more than 40 acres of land, would require the preparation of a WSA regardless of water demand. Now, SB 267 exempts certain energy projects from the WSA requirements.
As illustrated in CBD and subsequent decisions, all water supply analyses must be carefully prepared and may be challenged. If you have any questions regarding SB 267 or other water supply issues, please contact your BB&K attorney, Michelle Ouellette, Paeter Garcia, Jason Ackerman or an attorney in the firm’s Renewable Energy or Environmental Law & Natural Resources practice groups.
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