BILL ANALYSIS �
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.