BILL ANALYSIS �
-----------------------------------------------------------------
| |
| 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