BILL ANALYSIS �
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: SB 920 HEARING: 4/30/14
AUTHOR: Galgiani FISCAL: Yes
VERSION: 1/28/14 TAX LEVY: No
CONSULTANT: Ewing
FLOOD PROTECTION AND LAND USE
Permits local agencies in the Sacramento-San Joaquin Valley
to authorize development in a flood zone while levee
improvements are in the planning and design stage.
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. These bills are:
AB 5 (Wolk) made consistent 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) renamed the Reclamation Board to the
Central Valley Flood Protection Board.
SB 5 (Machado, 2007) required the Central Valley Flood
Protection Board (Board) to adopt the Central Valley Flood
Protection Plan (Flood Plan), an integrated flood
management plan for the Sacramento-San Joaquin River Flood
Management System. The Flood Plan was required to be
adopted by July 1, 2012.
Follow-up legislation, SB 1278 (Wolk,) required each city
and county within the Sacramento-San Joaquin Valley to
amend its general plan within two years of July 2, 2013 to
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incorporate data, information on risks and analyses
contained in the Flood Plan. No more than 12 months after
amending its a general plan, a city or county must amend
its zoning ordinance to align with its general plan. Once
a city or county completes it general plan and zoning
ordinance amendments, it is prohibited from entering into a
development agreement that would result in the construction
of a new residence within a flood hazard zone, unless a
city or county makes a specific finding (SB 5, Machado,
2007).
Those findings must include:
The State Plan of Flood Control's facilities or
other flood management facilities protect the property
to the urban level of flood protection (200-year flood
level of 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.
For purposes of finding that adequate progress has been
made on the construction of a flood protection system,
"adequate progress" is defined as:
The total project scope, schedule, and cost of the
completed flood protection system have been developed.
Revenues sufficient to fund each year of the
project schedule have been identified and, in any
given year at least 90 percent of the revenues for
that year have been appropriated and are being
expended.
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In any year in which state funding is not
appropriated consistent with an agreement between a
state agency and a local flood management agency, the
Central Valley Flood Protection Board may find that
the local flood management agency is making adequate
progress.
Critical features of the flood protection system
are under construction, and each critical feature is
progressing as indicated by the actual expenditure of
the construction budget funds.
The city or county has not been responsible for a
significant delay in the completion of the system.
Some local officials are concerned that the statutory
requirements under the package of flood legislation will
impair their ability to issue permits after 2016, because
the statutory definition of adequate progress requires them
to begin construction on levee improvements.
Proposed Law
Senate Bill 920 amends the definition of "adequate
progress" on levee improvements by replacing the
requirement that critical features must be under
construction with a requirement that critical features are
either being planned and designed or under construction.
Senate Bill 920 also includes in the definition the
requirement that local agencies complete a levee safety
plan and include information on its determination of
adequate progress in an annual report to the Central Valley
Flood Control Board.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . Senate Bill 920 gives local
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governments in the Sacramento-San Joaquin Valley the needed
flexibility to make local land use decisions without
sacrificing flood protection. The 2007 package of flood
legislation set a high standard and deadlines that did not
anticipate the challenges that have impacted flood
protection efforts across the valley. Delays in the
issuance of flood hazard maps and the downturn in the
economy have constrained the ability of local agencies to
make progress in improving levee systems. As a result, the
statutorily imposed deadline of 2016 will result in a de
facto construction moratorium in many parts of the valley.
SB 920 provides essential flexibility to local agencies to
make informed land use decisions, based on local needs. AB
70 (Jones), enacted in the 2007 flood legislation package,
clarified that local agencies are liable for development
decisions in under-protected areas. SB 920 aligns
authority for land use decisions with that liability,
creating tremendous fiscal incentives to follow through on
levee improvements for areas at risk of flooding without
constraining local housing development.
2. What were they thinking ? Following every disaster that
takes lives and homes, the public response is to question
decisions by public officials to allow homes to be placed
in high risk areas, such as flood zones. SB 920 will allow
local agencies to authorize new residential construction in
flood zones that have already been deemed hazard areas.
Although state law stipulates that local agencies may be
held liable for authorizing construction in a flood hazard
area, the courts have found that the state faces
substantial liability in the event of future floods. The
2007 flood package was a compromise that does not require
levee improvements to be completed before new home
construction can be authorized. It simply requires
adequate progress, meaning the completion of planning and
design and the start of construction. To change the
definition to allow housing construction in a flood zone
when local agencies begin to design levee improvements will
potentially put thousands of Californians in high risk
flood zones and substantially increase the state's
financial liability should a flood occur.
3. Financing levee improvements . The Governor's 2014
California Water Action Plan calls for the formation of a
Delta Levee Assessment District with authority to collect
fees needed to repair and maintain flood protection levees.
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The Committee may wish to consider if it makes sense to
permit additional housing in flood hazard areas instead of
ensuring that the state has the governance structures and
authorities in place to finance necessary levee
improvements.
4. Clarification . SB 920 would modify the definition of
adequate progress to include, among other requirements,
that: "Critical features of the flood protection system are
either being planned and designed or are under
construction, and each critical feature is progressing as
indicated by the actual expenditure of the construction
budget funds." To avoid confusion with regard to the need
to spend construction funding to meet the definition of
adequate progress, independent of whether the agency has
reached the construction phase of a levee project, the
Committee may wish to consider a technical amendment to
include "the expenditure of planning, design or
construction budget funds" in the new definition.
5. Related legislation . Assembly Bill 201 (Eggman) would
modify the requirement for a city or county within the
Sacramento-San Joaquin Valley to make a finding that a
property is in an undetermined risk area when approving a
discretionary permit. AB 201 also clarifies that the
restrictions on development under SB 5 (Machado) applies to
construction of new residences, not more broadly to any
permit related to housing.
Support and Opposition (4/24/14)
Support : Building Industry Association of the Greater
Valley, City of Lathrop, City of Lodi, City of Stockton,
San Joaquin County, San Joaquin Partnership.
Opposition : Defenders of Wildlife, American Rivers,
Planning and Conservation League.