BILL ANALYSIS                                                                                                                                                                                                    Ó




                     SENATE GOVERNANCE & FINANCE COMMITTEE
                            Senator Lois Wolk, Chair
          

          BILL NO:  SB 1278                     HEARING:  4/25/12
          AUTHOR:  Wolk                         FISCAL:  Yes
          VERSION:  4/19/12                     TAX LEVY:  No
          CONSULTANT:  Lui

                         FLOOD PROTECTION AND LAND USE
          

          Makes several changes to Sacramento-San Joaquin Valley 
          cities' and counties' flood hazard planning and development 
          practices.


                           Background and Existing Law  

          In 2007, Governor Schwarzenegger signed a six-bill flood 
          package that identified high-risk flood hazard zones and 
          planned for future development:
                 AB 5 (Wolk) reconciled the flood package bills' 
               structure and language. 
                 AB 70 (Jones) established that a city or county may 
               be liable for flood damages if it unreasonably 
               approves new development in a previously undeveloped 
               area. 
                 AB 156 (Laird) revised the Department of Water 
               Resources (DWR) and Central Valley Flood Protection 
               Board's authorities over flood management. 
                 AB 162 (Wolk) revised local land use planning 
               requirements. 
                 SB 5 (Machado) required the Central Valley Flood 
               Protection Plan (Flood Plan).
                 SB 17 (Florez) changed the Reclamation Board's name 
               to the Central Valley Flood Protection Board. 

          The State Plan of Flood Control is a document of existing 
          state and federal flood control works, protection systems, 
          lands, programs, plans, conditions, modes of operations, 
          and maintenance of the Sacramento River Flood Control 
          Project, Sacramento River, and San Joaquin River 
          watersheds.  By July 1, 2012, the Central Valley Flood 
          Protection Board (Board) is a nine member board consisting 
          of seven voting members, who are gubernatorial appointees, 
          and two non-voting, ex-officio members, who are the Chairs 
          of the Assembly Committee on Water, Parks, and Wildlife and 




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          the Senate Committee on Natural Resources and Water.  By 
          July 1, 2012, the Board must adopt the Central Valley Flood 
          Protection Plan (Flood Plan), an integrated flood 
          management plan for the Sacramento-San Joaquin River Flood 
          Management System (SB 5, Machado, 2007).  

          Under SB 5, each city and county within the Sacramento-San 
          Joaquin Valley must amend its general plan within two years 
          of the Board's adopting the Flood Plan.  Within 36 months 
          of the Board's adopting the Flood Plan, a city or county 
          within the Sacramento-San Joaquin Valley must amend its 
          zoning ordinance to make it consistent with its general 
          plan.  Once a city or county completes it general plan and 
          zoning ordinance amendment, it is prohibited from entering 
          into a development agreement for property located within a 
          flood hazard zone, unless a city or county makes a specific 
          finding (SB 5, Machado, 2007). 

          DWR is working on maps for areas within the Sacramento-San 
          Joaquin Valley that are protected by the state's project 
          levees.  However, these maps do not provide information 
          about local flood protection systems or internal drainage, 
          like creeks or streams protected by State Plan of Flood 
          Control project-levees and non-project levees (areas not 
          protected by the state's levees).  
           
          Without information about non-project levees or internal 
          drainage, local governments and planners say they cannot 
          implement SB 5's general plan and zoning ordinance 
          amendment requirements on time (Machado, 2007).  Further, 
          because cities and counties must prohibit development in a 
          flood hazard zone, they worry that without sufficient 
          information to support that a parcel's location is in a 
          flood hazard zone, restricting development exposes cities 
          and counties to a regulatory "takings" claim and 
          litigation.  Cities and counties want more time to develop 
          mapping information and identify areas for the upcoming 
          general plan and zoning ordinance amendments' deadlines.  


                                   Proposed Law
                                         
          I.  General plans.  State law requires each city and county 
          within the Sacramento-San Joaquin Valley to amend its 
          general plan within two years of the Board adopting the 
          Flood Plan:





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                 Data and analysis contained in the Flood Plan, 
               including:
                  o         Locations of the facilities of the State 
                    Plan of Flood Control;
                  o         Locations of other flood management 
                    facilities;
                  o         Locations of the real property protected 
                    by those facilities; and  
                  o         Locations of flood hazard zones.
                 Goals, policies, and objectives, based on the Flood 
               Plan's data and analysis, to protect lives and 
               property and to reduce flood damage risk; 
                 Implementation measures to carry out the goals, 
               policies, and objectives. 
          
          SB 1278 additionally requires that a city or county's 
          general plan to contain:
                 Locations mapped by the Federal Emergency 
               Management Agency (FEMA) Flood Insurance Rate Map or 
               the Flood Hazard Boundary Map; 
                 Locations that participate in the National Flood 
               Insurance Program; 
                 Locations identified as Zone B and X (shaded) by 
               FEMA;  and  ,
                 Locations mapped by a local flood agency or flood 
               district.

          II.  Date change.  SB 1278 changes the trigger date for 
          when cities and counties within the Sacramento-San Joaquin 
          Valley must amend its general plan.  SB 1278 requires that 
          before July 2, 2013, DWR must issue maps for areas 
          protected by the State Plan of Flood Control.  SB 1278 
          requires each city and county within the Sacramento-San 
          Joaquin Valley to amend its general plan within 24 months 
          of DWR issuing maps.

          III.  Zoning ordinance timeline clarification.  Within 36 
          months of the Board's adoption of the Flood Plan, but not 
          more than twelve months after the general plan amendment, 
          cities and counties must amend their zoning ordinances.  SB 
          1278 clarifies this dates, so cities and counties, not more 
          than twelve months after the general plan amendment, must 
          amend their zoning ordinances. 
          
          IV.  Presumption of risk.  SB 1278 defines an undetermined 
          risk area as an area with possible, but undetermined, flood 





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          hazard risk for which an analysis of an urban level of 
          flood protection has not been conducted by DWR, a local 
          flood agency, or the National flood Insurance Program. 

          SB 1278 provides that an undermined risk area must be 
          presumed to be at risk for a flood hazard, unless deemed 
          otherwise by the State Plan of Flood Control, an official 
          flood insurance rate map issued by FEMA, or a finding made 
          by a city or county based on a determination of substantial 
          evidence by a local flood agency. 
          
          V.  Development agreements.  Under SB 5, once a city or 
          county's general plan and zoning ordinance amendments are 
          effective, a city or county, located within the 
          Sacramento-San Joaquin Valley, is prohibited from entering 
          into a development agreement for property in a flood hazard 
          zone, unless the city or county makes  one  of the following 
          findings:
                The State Plan of Flood Control's facilities or 
               other flood management facilities protect the property 
               to the urban level of flood (200-year flood level of 
               protection) protection in urban and urbanizing areas 
               or the national Federal Emergency Management Agency's 
               (FEMA) standard of flood protection in nonurbanized 
               areas;
                The city or county has imposed conditions on the 
               development agreement that will protect property to 
               the urban level of flood protection in urban and 
               urbanizing areas or FEMA's standard of flood 
               protection in nonurbanized areas;  or  ,
                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 FEMA's standard of flood 
               protection in nonurbanized areas.

          SB 1278 provides that a city or county located within the 
          Sacramento-San Joaquin Valley, after it general plan and 
          zoning ordinance amendments become effective, may enter 
          into a development agreement for property located within a 
          flood hazard zone if 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. 





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          VI.  Financial assistance.  To help a city or county comply 
          with general plan amendment requirements, the Board, DWR, 
          and local flood agencies must collaborate with cities or 
          counties by providing them with information and technical 
          assistance.  SB 1278 requires DWR to provide financial 
          assistance to cities and counties to the extent funding is 
          available. 

          VII.  Definitions.  SB 1278 defines several key terms.
                  "Zone B and X (shaded)" means an area of moderate 
               flood hazard, usually the area between the limits of 
               the 100-year and 500-year floods, and designates base 
               floodplains of lesser hazards, such as areas protected 
               by levees from 100-year flood, or shallow flooding 
               areas with average depths of less than one foot or 
               drainage areas less than one square mile.


                               State Revenue Impact
           
          No estimate. 


                                     Comments  

          1.   Purpose of the bill  .  When DWR released draft flood 
          maps last November, the cities and counties affected by SB 
          5's provisions were surprised that local flood information 
          was not included.  For the last four years, cities and 
          counties believed that local flood information would be 
          included in the maps.  Cities and counties within the 
          Central Valley currently do not have access to reliable 
          information on flood risks for their communities and 
          non-project levees, putting them at risk for litigation 
          when they must prepare to deny development in a flood 
          hazard zone.  Without the funding or technical expertise 
          available to develop maps in time to comply with SB 5's 
          upcoming general plan and zoning ordinance amendment 
          deadline, cities and counties are in a logistical dilemma.  
          Cities and counties can't amend their general plans because 
          they don't know what areas to map.  By refining the 
          boundaries that cities and counties need to map and 
          presuming that areas of undetermined flood risk are at risk 
          for flood hazards, SB 1278 ensures that cities and counties 
          have the necessary information to comply with SB 5's 





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          requirements, and further, to make informed and responsible 
          land use decisions.

          2.   Five and change  .  Cities and counties have known about 
          the deadline to amend their general plans and zoning 
          ordinances since 2007.  They assert that lack of data about 
          areas protected by non-project levees is preventing 
          compliance.  Local governments could have spent the last 
          four years identifying areas protected by non-project 
          levees, but they assumed that DWR's maps would include that 
          information.  While parcel data for 200-year flood level is 
          not readily available, it can be determined by overlapping 
          100-year and 500-year flood level FEMA, state, and local 
          maps.  The purpose of the 2007 flood package was to keep 
          Californians out of flood harm's way, specifically by 
          prohibiting development in flood hazard zones, except for 
          scenario-specific situations.  SB 1278 grants cities and 
          counties extra time to incorporate necessary data into 
          general plan and zoning ordinance amendments, and provides 
          them an additional option for approving development in a 
          flood hazard zone.  Even if SB 1278 attempts to address 
          those concerns, cities and counties may have additional 
          implementation concerns.  The Committee may wish to 
          consider whether SB 1278 lays the groundwork for further 
          delays in implementing SB 5's requirement.   

          3.   Maps, maps, maps  .  SB 1278 says, "Before July 2, 2013, 
          DWR shall issue maps for areas protected by the State Plan 
          of Flood Control.  Within 24 months of the department 
          issuing maps, each city and county within the 
          Sacramento-San Joaquin Valley, shall amend its general 
          plan." DWR plans to phase-in maps, so some cities and 
          counties may receive their maps in late 2012/early 2013 
          while others receive them July 2013.  It is unclear whether 
          the 2 years begins on July 2, 2013 or the date when a city 
          or county receives its maps from DWR.  The Committee may 
          wish to consider an amendment clarifying that all cities 
          and counties must start general plan amendments within 2 
          years of July 2, 2013.  

           4.   Show me the money  .  The State Plan of Flood Control 
          does not cover local facilities because the 2007 flood 
          package's intent was to remove state liability.  Yet, the 
          cities and counties affected by this bill need financial 
          and technical assistance to develop flood hazard maps.  The 
          state has a role in protecting Californians from hazards.  





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          SB 1278 requires DWR, if funding is available, to provide 
          funding assistance to cities and counties.  But what's the 
          likelihood of receiving funds? DWR's grant program funding 
          may come from two places: a) the Army Corps of Engineers, 
          or b) Proposition 1E (2006), the Disaster Preparedness and 
          Flood Prevention Bond Act, which provides $300,000,000 for 
          the Integrated Regional Water Management's Stormwater Flood 
          Management.  However, it's unclear if these funding sources 
          will be available.

          5.   Determination  .  SB 1278 allows a city or county to 
          develop property located in a flood hazard zone if it 
          determines that the property has met the urban level of 
          flood protection, based on a developer's findings.  The 
          bill provides developers the flexibility to make those 
          findings; it does not prescribe methods or procedures for a 
          developer to make this determination.  How can local 
          governments verify if the developer's findings are 
          accurate?  Additionally, developers already face high 
          construction costs and permit regulations in a slow 
          economy. Would placing an additional burden on developers 
          to determine if a property is sufficiently protected from 
          200-year level floods stymie future development?  SB 1278 
          provides developers an option, but they may not choose to 
          pursue it. 

          6.   Further discussion  .  Local governments and stakeholders 
          state that there may be additional SB 5 implementation 
          issues that need to be addressed.  The bill may benefit 
          from further discussions about:
                  Internal drainage  .  While the term is never 
               explicitly stated, or defined, in the bill, planners 
               interpret SB 5 as requiring cities and counties to 
               plan for internal drainage.  Examples of internal 
               drainage include:
                  o         If a state-project levee meets the urban 
                    level of flood protection, but a creek, which 
                    flows into an area protected by the 
                    project-levee, floods during a storm, the state 
                    may be liable because the creek - here, 
                    considered internal drainage - flooded.  
                  o         If a city or county's sewer line breaks, 
                    either by accident or storm,  the city or county 
                    may be liable because it failed to plan for the 
                    sewer line's flood risk.  Cities and counties are 
                    concerned that the broad brushstroke of "internal 





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                    drainage" may inadvertently require them to 
                    uproot all existing water works infrastructure to 
                    comply with SB 5.  
               Further, under SB 5, cities and counties have to be 
               prepared to map and plan for internal drainage, but 
               currently, no maps identify areas of internal 
               drainage, for areas behind state-project or 
               non-project levees. 
                  Date certain  .  DWR anticipates completing its maps 
               by the bill's required July 2, 2013 date.  However, 
               around June 2013, the Army Corps of Engineers will be 
               releasing new hydrology and hydraulic studies.  The 
               Army Corps' data and information will not be 
               incorporated into maps of state project levees.  

          7.   Double-referred  .  On April 10, the Senate Natural 
          Resources and Water Committee passed SB 1278 on an 8-0 
          vote.   
           

                        Support and Opposition  (4/19/12)

           Support  :  City of Sacramento. 

           Opposition  :  Unknown.