BILL ANALYSIS                                                                                                                                                                                                    Ó





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          |                                                                 |
          |         SENATE COMMITTEE ON NATURAL RESOURCES AND WATER         |
          |                   Senator Fran Pavley, Chair                    |
          |                    2011-2012 Regular Session                    |
          |                                                                 |
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          BILL NO: SB 1278                   HEARING DATE: April 10, 2012
          AUTHOR: Wolk                       URGENCY: No
          VERSION: March 29, 2012            CONSULTANT: Dennis O'Connor
          DUAL REFERRAL: Rules               FISCAL: Yes
          SUBJECT: Planning and Zoning: Flood Protection: Sacramento-San 
          Joaquin Valley.
          
          BACKGROUND AND EXISTING LAW
          1.In 2007, the Legislature passed and the Governor signed a 
            comprehensive package of flood bills.  Among other things, 
            these bills:
                 Restructured the former Reclamation Board and renamed it 
               the Central Valley Flood Protection Board (Board) - SB 17 
               (Florez)
                 Revised Department of Water Resources (DWR) and the 
               Board's authorities over flood management - AB 156 (Laird)
                 Required the development of a Central Valley Flood 
               Protection Plan (Flood Plan) and conforming changes to 
               local land use practices - SB 5 (Machado)
                 Revised local landuse planning requirements to more 
               completely address potential flood hazards - AB 162 (Wolk)
                 Established that a city or county may be liable for 
               flood damages if it unreasonably approves new development 
               in a previously undeveloped area, unless the city or county 
               meets specified requirements - AB 70 (Jones)
                 Ensured all that all these bills were consistent in 
               structure and language - AB 5 (Wolk) 

            The over-arching concept behind these bills was:
            1st  Stop putting people in harm's way
            2nd  Determine where the greatest risk of harm is
            3rd  Develop and implement plans to reduce that risk

          1.SB 5 requires that the Board adopt the Flood Plan by July 1, 
            2012.  They appear to be on schedule to do so.  Within 24 
            months of the adoption of the Flood Plan, cities and counties 
            are required to amend their general plans to contain the 
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            following:
                 Data and analysis contained in the Flood Plan, 
               including, but not limited to, the locations of the 
               facilities of the State Plan of Flood Control, the 
               locations of other flood management facilities, the 
               locations of the real property protected by those 
               facilities, and the locations of "flood hazard zones."  
               "Flood hazard zone" is defined as an area 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 (FEMA).
                 Goals, policies, and objectives, based on those data and 
               analysis, for the protection of lives and property that 
               will reduce the risk of flood damage.
                 Feasible measures designed to implement those goals, 
               policies, and objectives.

            To assist each city or county in complying with these 
            requirements section, the Board, DWR, and local flood agencies 
            are required to collaborate with cities or counties by 
            providing them with information and other technical 
            assistance.

          1.SB 5 further requires that not more than 12 months after the 
            general plans have been updated to reflect the Flood Plan, 
            cities and counties are to update their zoning ordinances to 
            be consistent with the revised general plans.

          2.Once the general plans and zoning ordinances have been 
            revised, SB 5 prohibits a city or county within the 
            Sacramento-San Joaquin Valley from entering into a development 
            agreement for property within a flood hazard zone unless the 
            city or county finds one of the following:
                 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 (200 year protection) or the national FEMA standard 
               of flood protection in nonurbanized areas (100 year 
               protection).
                 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 FEMA standard of flood protection in 
               nonurbanized areas.
                 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 
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               than the urban level of flood protection in urban or 
               urbanizing areas or the national FEMA 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.

          PROPOSED LAW
          This bill would:

          1.Require DWR to assist each city or county in updating their 
            general plans by providing financial assistance, to the extent 
            funding is available.

          2.Authorize cities and counties, once the general plans and 
            zoning ordinances have been revised and until January 1, 2017, 
            to enter into a development agreement for property if the city 
            or county does not have access to information regarding the 
            urban level of protection for the property and the property is 
            located outside of a flood hazard zone that is subject to 
            depths of flooding greater than three feet during a 200-year 
            flood.

          ARGUMENTS IN SUPPORT
          According to the author, "Cities and counties within the Central 
          Valley currently do not have access to reliable information on 
          flood risks to their communities. SB 1278 helps ensure that 
          these communities are able to work with the state to develop the 
          flood risk information necessary to make informed and 
          responsible land use decisions."

          ARGUMENTS IN OPPOSITION: None 

          COMMENTS 
           
          What is the problem?   Some cities and counties seem concerned 
          that they won't have sufficient information, when updating their 
          general plans, to definitively say whether or not a specific 
          parcel is or is not in a flood hazard zone.  Their fear is that 
          without such information, any action that would restrict 
          development could expose them to a claim of a regulatory taking.

          However, it is not clear precisely what information cities and 
          counties would be lacking.  The Board seems to be on track to 
          meet both the timing and content requirements for the Flood 
          Plan.  DWR has just released its draft "Urban Level of Flood 
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          Protection Criteria" and further asserts that it will begin 
          rolling out detailed flood maps and data beginning this July.  
          Local flood agencies presumably know where their facilities are 
          and how they operate.  And FEMA maps are readily available.

           Does this bill solve the problem?  It's hard to know.  To the 
          extent the problem can be resolved with money and that DWR has 
          funds available to help, this bill might be successful.  
          However, to the extent that the problem is at the general plan 
          stage, the provisions regarding entering into development 
          agreements after the updating of general plans seem misplaced.

           Unintended Consequences.   Regardless of what the problem is that 
          this is attempting to address, this bill would likely have 
          significant consequences.  Allowing cities and counties to enter 
          into development agreements so long as they don't have access to 
          flood information removes the incentive for them to aggressively 
          work to acquire that information.  Instead, there would likely 
          be a rush to approve development agreements before the sunset 
          expires.  This would violate the 1st overarching concept of the 
          2007 flood package: Stop putting people in harm's way.

          Moreover, as such agreements would be approved in compliance 
          with the law, cities and counties would not be "unreasonably 
          approving" new development in a previously undeveloped area 
          under the provisions of AB 70.  This means cities and counties 
          likely would not be liable for flood damages under the terms of 
          AB 70.

          Dual Referred to Rules.   In anticipation of the recent 
          amendments, this bill was referred to this committee and then 
          back to the Rules Committee.  The expectation is that Rules 
          would then refer this bill to the Governance and Finance 
          Committee.  However, if this committee were to delete the 
          provisions regarding development agreements, the Rules Committee 
          would have little reason to rerefer this bill to Governance and 
          Finance where issues such as general plan amendments etc. are 
          best resolved.

          Should the committee decide to move this bill, the committee may 
          wish to ask the author to commit to removing the provisions 
          regarding development agreements when the bill gets to 
          Governance and Finance, and to further commit to working with 
          Governance and Finance staff to develop amendments to more 
          appropriately resolve the flood/landuse issues.

          SUPPORT
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          None Received

          OPPOSITION
          None Received











































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