BILL ANALYSIS �
AB 2108
Page 1
Date of Hearing: May 6, 2014
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Anthony Rendon, Chair
AB 2108 (Eggman) - As Proposed to Be Amended: May 6, 2014
SUBJECT : Flood protection
SUMMARY : Provides two exceptions to the current prohibition on
a city or county approving projects in an area that does not
meet the urban level of flood protection. Specifically, this
bill :
1)Allows a discretionary permit to be issued if it will not
result in more than a 50% increase in building occupancy;
2)Redefines "adequate progress" to include, at the sole
discretion of the Central Valley Flood Protection Board (Flood
Board), planning and design of flood protection system
improvements; and,
3)Provides the Flood Board discretion to allow two 18-month
periods where the city or county can continue issuing
development agreements, permits, and tentative maps in an area
that does not meet the urban level of flood protection if the
city or county demonstrates that there is adequate progress on
pre-construction planning and design of the flood protection
system improvements.
EXISTING LAW :
1)Requires protection of urban and urbanizing areas to a
1-in-200 chance of flooding (or lower) in any given year
(200-year flood protection standard), or the FEMA standard of
flood protection in nonurbanized areas.
2)Prohibits a city or county from approving any new development
in an urban area of the Sacramento-San Joaquin Valley (also
called the "Central Valley") unless:
a) The area meets the urban level of flood protection;
b) The city or county has imposed conditions on the permit
or discretionary entitlement that will protect the project
to the urban level of flood protection;
c) The local flood management agency has made adequate
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progress on construction of a flood control system that
will result in flood protection that is greater than or
equal to the urban level of flood protection; or,
d) The property is in an area where the level of flood risk
has not been officially determined by State or Federal
government (undetermined risk area) but there is
substantial evidence in the record that the area does in
fact meet the urban level of flood protection.
3)Defines a "developed area," under Federal law, as an area of a
community that is a minimum of 20 contiguous acres with basic
infrastructure such as roads and utilities and where one of
the following applies:
a) There is a minimum of 20 contiguous acres and 75% of the
existing land already contains commercial, industrial, or
residential structures or uses;
b) There is a minimum of 20 contiguous acres and 75% of the
land contains at least two residences per acre;
c) The land is less than 20 acres and undeveloped but
touches land that meets a) or b) above on at least three
sides; or,
d) The project is a subdivision on a minimum of 20
contiguous acres and construction has started on 10% of the
lots or remaining lots and, if it is a residential
development, the density is at least two residences per
acre.
FISCAL EFFECT : Nonfiscal
COMMENTS : This bill would allow cities and counties to issue
permits in areas that do not meet the required 200-year level of
flood protection as long as the new structure or remodel does
not increase occupancy by more than 50%. This would allow, for
example, construction of cell towers or other unoccupied
structures or remodels of existing structures. This bill would
also allow cities and counties that are making adequate progress
in pre-construction planning and designing of flood system
improvements to continue issuing development agreements,
permits, and tentative maps if the city or county has
demonstrated to the satisfaction of the Flood Board that it is
on its way to constructing improvements that will meet the
200-yr level of flood protection for the areas where the new
construction would occur.
The standard of care applicable to the State for the protection
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and maintenance of the levee and flood system was gravely
increased by the landmark decision Paterno v. State of
California. In February 1986, one of the greatest storms on
record in California occurred leading to major rains and
flooding raging throughout the State for more than a week. In
Northern California, the Yuba River crested near the town of
Linda just upstream of Marysville and Yuba City reaching 76 feet
at a point where the maximum levee capacity was 80 feet.
However, while the waters were receding, the Linda levee began
to boil and then give way, eventually flooding hundreds of homes
and a shopping center in the City of Linda. Approximately 3,000
plaintiffs then sued the state for failing to maintain the
levee. Although the courts found the levee failure was
originally due to poor design and construction by Yuba County,
in the end it did not matter. The Third District Court of
Appeal held the state liable for playing a role in operating and
maintaining the system stating that "[w]hen a public entity
operates a flood control system built by someone else, it
accepts liability as if it had planned and built the system
itself." As a result of the Paterno case, California had paid
$464 million in damages by 2007.
In addition to the liability created by Paterno, Hurricane
Katrina and its aftermath demonstrated the need for more
vigilant action in managing flood risk. Hurricane Katrina was
one of the deadliest hurricanes ever to hit the United States.
An estimated 1,836 people died in the hurricane and the flooding
that followed in late August 2005, and millions of others were
left homeless along the Gulf Coast and in New Orleans, which
experienced the highest death toll. In the wake of Hurricane
Katrina, most agreed that the flood management system in the
Sacramento-San Joaquin Valley provided an unacceptably low level
of protection for current and future citizens of the valley.
The citizens of California responded by approving two general
obligation bonds. Proposition 1E, The Disaster Preparedness and
Flood Prevention Bond Act of 2006 allocated $4.1 billion for
various flood management activities including $3 billion
specifically for flood protection enhancements to protect the
Central Valley. Proposition 84, The Safe Drinking Water, Water
Quality & Supply, Flood Control, River & Coastal Bond Act of
2006, provided an additional $800 million for flood control
projects and planning.
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The Legislature also responded by passing a six-bill package of
flood legislation that was signed by former Governor
Schwarzenegger in 2007 and had as its general purpose
identifying the areas of the state with the greatest flood risk
and reducing those risks. Among the package was SB 5
(Machado/2007), which required the Flood Board to adopt an
integrated flood management plan for the Sacramento-San Joaquin
River Flood Management System by July 1, 2012 (Flood Plan).
Within 24 months of the adoption of the Flood Plan (i.e. no
later than July 1, 2014), cities and counties are required to
amend their general plans to incorporate data and analysis from
the Flood Plan. And within 12 months of amending its general
plan (i.e. no later than July 1, 2015), a city or county must
also update their zoning ordinances to be consistent with the
revised general plan. Once the general plan and zoning
ordinances have been updated, the local government is prohibited
from allowing development on property within a flood hazard zone
unless the city or county makes certain determinations.
June 29, 2012 the Flood Board unanimously adopted the Central
Valley Flood Protection Plan which, as the Flood Board states,
"provides conceptual guidance to reduce the risk of flooding for
about one million people and $70 billion in infrastructure,
homes and businesses with a goal of providing 200-year (1 chance
in 200 of flooding in any year) protection to urban areas, and
reducing flood risks to small communities and rural agricultural
lands." The Flood Board adoption of the Flood Plan in 2012
triggered city and county compliance and the prospect of a July
1, 2015 bar on new development in a flood hazard zone unless the
required levels of flood protection are, or will be, met.
Following adoption of the Flood Plan, the Governor signed SB
1278 (Wolk/2012). SB 1278 recognized that some properties were
in a kind of a "no man's land." No determination had been made
of the adequacy of their flood protection. This didn't mean
flood protection was necessarily inadequate, just there was no
determination. These were called "undetermined risk areas." SB
1278 created a limited exception to the building prohibition.
It allowed a city or county to approve a development agreement
in an "undetermined risk area" if a finding could be made, based
on substantial evidence in the record, that the property met the
urban level of flood protection.
AB 1259 (Olsen/2013) recognized that it was inconsistent to
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provide an exception for undetermined risk areas under
development agreements but not undetermined risk areas subject
to permits or tentative maps (approvals found in two other
sections of law). So, AB 1259 extended the language of SB 1278
to permits and tentative maps.
Supporting arguments : The author states that this bill is
needed because the 200-year flood protection standard is
"proving cost prohibitive to developers, and the affected
communities are not capable of financing sufficient flood
protection infrastructure on their own." The author states that
the de facto moratorium that will occur is economically
devastating to these communities and undermines their smart
growth and sustainability policies. Supporters state that this
bill "provides important accommodation to cities facing a
potential moratorium."
REGISTERED SUPPORT / OPPOSITION :
Support
California Infill Builders Federation
City of Sacramento
County of San Joaquin
League of California Cities
Opposition
None on file.
Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916)
319-2096