BILL NUMBER: SB 1278 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 20, 2012
AMENDED IN ASSEMBLY JUNE 12, 2012
AMENDED IN SENATE MAY 29, 2012
AMENDED IN SENATE MAY 1, 2012
AMENDED IN SENATE APRIL 19, 2012
AMENDED IN SENATE MARCH 29, 2012
INTRODUCED BY Senator Wolk
FEBRUARY 23, 2012
An act to amend Sections 65007, 65302.9, 65860.1, and 65865.5 of
the Government Code, and to amend Section 9610 of the Water Code,
relating to land use.
LEGISLATIVE COUNSEL'S DIGEST
SB 1278, as amended, Wolk. Planning and zoning: flood protection:
Sacramento-San Joaquin Valley.
(1) Existing law requires each city and county within the
Sacramento-San Joaquin Valley to amend its general plan, as
specified, within 24 months of the adoption of the Central Valley
Flood Protection Plan by the Central Valley Flood Protection Board.
Existing law requires the Central Valley Flood Protection Board, the
Department of Water Resources, and local flood agencies to
collaborate with cities or counties by providing the cities and
counties with information and other technical assistance to assist
with complying with these requirements.
This bill would instead require each city and county to amend its
general plan, as specified, within 24 months of July 2, 2013.
(2) Existing law prohibits a city or county within the
Sacramento-San Joaquin Valley from entering into a development
agreement for property that is located in a flood hazard zone unless
the city or county makes specified findings, including, among others,
that certain conditions have been imposed by the city or county.
This bill would additionally authorize a city or county to make a
finding that the property in an undetermined risk area, as defined,
has met the urban level of flood protection, as specified.
(3) Existing law requires the Department of Water Resources to
develop preliminary maps for the 100- and 200-year flood plains
protected by project levees, as specified, and to provide the
preliminary maps to cities and counties within the Sacramento-San
Joaquin Valley.
This bill would additionally require the department,
before July 2, 2013, to issue maps for areas protected by the State
Plan of Flood Control and to issue draft 200-year floodplain maps, as
specified on or before July 2, 2013, to release
floodplain maps, as specified, and the available data as to the water
surface elevation of flooding in urban areas, as specified. The bill
would provide that the department's issuance of floodplain maps are
not subject to, among other things, the California Environmental
Quality Act and the California Endangered Species Act. This bill
would provide that the state or any state agency is not
liable for any claim based upon the exercise or performance of a
discretionary or ministerial function or duty pursuant to these
provisions, as specified .
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 65007 of the Government Code is amended to
read:
65007. As used in this title, the following terms have the
following meanings, unless the context requires otherwise:
(a) "Adequate progress" means all of the following:
(1) The total project scope, schedule, and cost of the completed
flood protection system have been developed to meet the appropriate
standard of protection.
(2) (A) Revenues that are sufficient to fund each year of the
project schedule developed in paragraph (1) have been identified and,
in any given year and consistent with that schedule, at least 90
percent of the revenues scheduled to be received by that year have
been appropriated and are currently being expended.
(B) Notwithstanding subparagraph (A), for any year in which state
funding is not appropriated consistent with an agreement between a
state agency and a local flood management agency, the Central Valley
Flood Protection Board may find that the local flood management
agency is making adequate progress in working toward the completion
of the flood protection system.
(3) Critical features of the flood protection system are under
construction, and each critical feature is progressing as indicated
by the actual expenditure of the construction budget funds.
(4) The city or county has not been responsible for a significant
delay in the completion of the system.
(5) The local flood management agency shall provide the Department
of Water Resources and the Central Valley Flood Protection Board
with the information specified in this subdivision sufficient to
determine substantial completion of the required flood protection.
The local flood management agency shall annually report to the
Central Valley Flood Protection Board on the efforts in working
toward completion of the flood protection system.
(b) "Central Valley Flood Protection Plan" has the same meaning as
that set forth in Section 9612 of the Water Code.
(c) "Developed area" has the same meaning as that set forth in
Section 59.1 of Title 44 of the Code of Federal Regulations.
(d) "Flood hazard zone" means an area subject to flooding that is
delineated as either a special hazard area or an area of moderate
hazard on an official flood insurance rate map issued by the Federal
Emergency Management Agency. The identification of flood hazard zones
does not imply that areas outside the flood hazard zones, or uses
permitted within flood hazard zones, will be free from flooding or
flood damage.
(e) "National Federal Emergency Management Agency standard of
flood protection" means the level of flood protection that is
necessary to withstand flooding that has a 1-in-100 chance of
occurring in any given year using criteria developed by the Federal
Emergency Management Agency for application in the National Flood
Insurance Program.
(e)
(f) "Nonurbanized area" means a developed area or an
area outside a developed area in which there are fewer than 10,000
residents that is not an urbanizing area .
(f)
(g) "Project levee" means any levee that is part of the
facilities of the State Plan of Flood Control.
(g)
(h) "Sacramento-San Joaquin Valley" means lands in the
bed or along or near the banks of the Sacramento River or San Joaquin
River, or their tributaries or connected therewith, or upon any land
adjacent thereto, or within the overflow basins thereof, or upon
land susceptible to overflow therefrom. The Sacramento-San Joaquin
Valley does not include lands lying within the Tulare Lake basin,
including the Kings River.
(h)
(i) "State Plan of Flood Control" has the same meaning
as that set forth in subdivision (j) of Section 5096.805 of the
Public Resources Code.
(i)
(j) "Tulare Lake basin" means the Tulare Lake
Hydrologic Region as defined in the California Water Plan Update
2009, prepared by the Department of Water Resources pursuant to
Chapter 1 (commencing with Section 10004) of Part 1.5 of Division 6
of the Water Code.
(j)
(k) "Undetermined risk area" means an urban or
urbanizing area within a moderate flood hazard zone, as delineated on
an official flood insurance rate map issued by the Federal Emergency
Management Agency, which has not been determined to have an urban
level of protection.
(k)
(l) "Urban area" means a developed area in which there
are 10,000 residents or more.
(l)
(m) "Urbanizing area" means a developed area or an area
outside a developed area that is planned or anticipated to have
10,000 residents or more within the next 10 years.
(m)
(n) "Urban level of flood protection" means the level
of protection that is necessary to withstand flooding from a leveed
riverine system that has a 1-in-200 chance of occurring in any given
year using criteria consistent with, or developed by, the Department
of Water Resources. "Urban level of flood protection" shall not
mean shallow flooding or flooding from local drainage that meets the
criteria of the national Federal Emergency Management Agency standard
of flood protection.
SEC. 2. Section 65302.9 of the Government Code is amended to read:
65302.9. (a) Before July 2, 2013, the Department of Water
Resources shall issue draft 200-year floodplain maps for areas
protected by the State Plan of Flood Control that contain sufficient
information and supporting data to allow a determination to be made
as to whether an area protected by the State Plan of Flood Control
has an urban level of flood protection.
(1) The department shall publish two notices of the draft 200-year
floodplain maps in newspapers widely circulated within the area
shown on the draft 200-year floodplain maps. A 90-day public comment
period shall begin on the date of the second publication during which
scientific or technical appeals and protests may be submitted to the
Central Valley Flood Protection Board.
(2) Appeals shall be based on scientific or technical data that
show draft maps to be scientifically or technically incorrect. Any
person who makes an appeal shall include the method, data, and
analysis used to support their claim.
(3) Following resolution of all appeals by the Central Valley
Flood Protection Board, the department shall prepare and publish
final 200-year floodplain maps.
(4) If no appeals are received during the 90-day comment period,
the draft maps shall be considered final.
(b)
65302.9. (a) Within 24 months of July 2,
2013, each city and county within the Sacramento-San Joaquin Valley
shall amend its general plan to contain all of the following:
(1) (A) The data and analysis contained in the Central Valley
Flood Protection Plan pursuant to Section 9612 of the Water Code,
including, but not limited to, the locations of the facilities of the
State Plan of Flood Control and the locations of the real property
protected by those facilities.
(B) The locations of flood hazard zones, including, but not
limited to, locations mapped by the Federal Emergency Management
Agency Flood Insurance Rate Map or the Flood Hazard Boundary Map,
locations that participate in the National Flood Insurance Program,
locations of undetermined risk areas, and locations mapped by a local
flood agency or flood district.
(2) Goals, policies, and objectives, based on the data and
analysis identified pursuant to paragraph (1), for the protection of
lives and property that will reduce the risk of flood damage.
(3) Feasible implementation measures designed to carry out the
goals, policies, and objectives established pursuant to paragraph
(2).
(c)
(b) An undetermined risk area shall be presumed to be
at risk for a flood hazard during flooding
that has a 1-in-200 chance of occurring in any given year
unless deemed otherwise by the State Plan of Flood Control, an
official National Flood Insurance Program rate map issued by the
Federal Emergency Management Agency, or a finding made by a city or
county based on a determination of substantial evidence by a local
flood agency.
(d)
(c) To assist each city or county in complying with
this section, the Central Valley Flood Protection Board, the
Department of Water Resources, and local flood agencies shall
collaborate with cities or counties by providing them with
information and other technical assistance.
(e)
(d) In implementing this section, each city and county,
both general law and charter, within the Sacramento-San Joaquin
Valley, shall comply with this article, including, but not limited
to, Sections 65300.5, 65300.7, 65300.9, and 65301.
(f)
(e) Notwithstanding any other law, this section shall
apply to all cities, including charter cities, and counties within
the Sacramento-San Joaquin Valley. The Legislature finds and declares
that flood protection in the Sacramento and San Joaquin Rivers
drainage areas is a matter of statewide concern and not a municipal
affair as that term is used in Section 5 of Article XI of the
California Constitution.
(f) This section shall not be construed to limit or remove any
liability of a city or county prior to the amendment of the general
plan except as provided in Section 8307 of the Water Code.
SEC. 3. Section 65860.1 of the Government Code is amended to read:
65860.1. (a) Not more than 12 months after the amendment of its
general plan pursuant to Section 65302.9, each city and county within
the Sacramento-San Joaquin Valley shall amend its zoning ordinance
so that it is consistent with the general plan, as amended.
(b) Notwithstanding any other law, this section shall apply to all
cities, including charter cities, and counties within the
Sacramento-San Joaquin Valley. The Legislature finds and declares
that flood protection in the Sacramento and San Joaquin Rivers
drainage areas is a matter of statewide concern and not a municipal
affair as that term is used in Section 5 of Article XI of the
California Constitution.
(c) This section shall not be construed to limit or remove any
liability of a city or county prior to the amendment of the zoning
ordinance except as provided in Section 8307 of the Water Code.
SEC. 4. Section 65865.5 of the Government Code is amended to read:
65865.5. (a) Notwithstanding any other law, after the amendments
required by Sections 65302.9 and 65860.1 have become effective, the
legislative body of a city or county within the Sacramento-San
Joaquin Valley shall not enter into a development agreement for
property that is located within a flood hazard zone unless the city
or county finds, based on substantial evidence in the record, one of
the following:
(1) The facilities of the State Plan of Flood Control or other
flood management facilities protect the property to the urban level
of flood protection in urban and urbanizing areas or the national
Federal Emergency Management Agency standard of flood protection in
nonurbanized areas.
(2) The city or county has imposed conditions on the development
agreement that will protect the property to the urban level of flood
protection in urban and urbanizing areas or the national Federal
Emergency Management Agency standard of flood protection in
nonurbanized areas.
(3) The local flood management agency has made adequate progress
on the construction of a flood protection system that will result in
flood protection equal to or greater than the urban level of flood
protection in urban or urbanizing areas or the national Federal
Emergency Management Agency standard of flood protection in
nonurbanized areas for property located within a flood hazard zone,
intended to be protected by the system. For urban and urbanizing
areas protected by project levees, the urban level of flood
protection shall be achieved by 2025.
(4) The property in an undetermined risk area has met the urban
level of flood protection based on substantial evidence in the record
provided by the developer .
(b) The effective date of amendments referred to in this section
shall be the date upon which the statutes of limitation specified in
subdivision (c) of Section 65009 have run or, if the amendments and
any associated environmental documents are challenged in court, the
validity of the amendments and any associated environmental documents
has been upheld in a final decision.
(c) This section does not change or diminish existing requirements
of local flood plain management laws, ordinances, resolutions, or
regulations necessary to local agency participation in the national
flood insurance program.
SEC. 5. Section 9610 of the Water Code is amended to read:
9610. (a) (1) By July 1, 2008, the department shall develop
preliminary maps for the 100- and 200-year flood plains protected by
project levees. The 100-year flood plain maps shall be prepared using
criteria developed or accepted by the Federal Emergency Management
Agency (FEMA).
(2) The department shall use available information from the 2002
Sacramento-San Sacramento and San
Joaquin River Basin Basins
Comprehensive Study, preliminary and regulatory FEMA flood insurance
rate maps, recent flood plain studies, and other sources to compile
preliminary maps.
(3) The department shall provide the preliminary maps to cities
and counties within the Sacramento-San Joaquin Valley for use as best
available information relating to flood protection.
(4) The department shall post this information on the board's
Internet Web site and may periodically update the maps as necessary.
(b) By July 1, 2008, the department shall give notice to cities in
the Sacramento-San Joaquin Valley outside areas protected by project
levees regarding maps and other information as to flood risks
available from the Federal Emergency Management Agency or another
federal, state, or local agency.
(c) On or before December 31, 2010, the department shall prepare a
status report on the progress and development of the Central Valley
Flood Protection Plan pursuant to Section 9612. The department shall
post this information on the board's Internet Web site, and make it
available to the public.
(d) (1) On or before July 1, 2013,
the department shall issue maps for areas protected by the State Plan
of Flood Control July 2, 2013, and for the purpose of
providing information to cities and counties necessary for their
determinations relating to level of flood protection, the department
shall release floodplain maps that identify at a minimum the
facilities of the State Plan of Flood Control and the available data
as to the water surface elevation of flooding in urban areas in the
event of the failure of the facilities of the State Plan of Flood
Control during flooding that has a 1-in-200 chance of occurring in
any given year .
(2) Concurrent with the release of these maps and for the purpose
of assisting local agencies in determining their level or flood
protection, the department shall make available levee reliability
data for the facilities of the State Plan of Flood Control identified
in the maps.
(e) The department's issuance of floodplain maps shall not be
subject to any of the following:
(1) The review and approval of the Office of Administrative Law or
to any other requirements of Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2) The California Environmental Quality Act or any other
requirement of Division 13 (commencing with Section 21000) of the
Public Resources Code.
(3) The California Endangered Species Act or any other requirement
of Chapter 1.5 (commencing with Section 2050) of Division 3 of the
Fish and Game Code.
(f) The state, or any state agency, shall not be liable for any
claim based upon the exercise or performance of a discretionary or
ministerial function or duty on the part of a state agency or a state
employee or officer in carrying out this section.