BILL ANALYSIS Ó ----------------------------------------------------------------- | | | SENATE COMMITTEE ON NATURAL RESOURCES AND WATER | | Senator Fran Pavley, Chair | | 2011-2012 Regular Session | | | ----------------------------------------------------------------- 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 1 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 2 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 3 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 4 None Received OPPOSITION None Received 5