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 SB 1278 - 4/19/12 -- Page 2 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: SB 1278 - 4/19/12 -- Page 3 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 SB 1278 - 4/19/12 -- Page 4 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. SB 1278 - 4/19/12 -- Page 5 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 SB 1278 - 4/19/12 -- Page 6 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. SB 1278 - 4/19/12 -- Page 7 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 SB 1278 - 4/19/12 -- Page 8 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.