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HomeMy WebLinkAboutMINUTES - 04102007 - C.31 sE__L Contra TO: BOARD OF SUPERVISORS FROM: TRANSPORTATION, WATER& . . : „ ..... _..z Costa INFRASTRUCTURE COMMITTEE .o¢ County 7- DATE: APRIL 10, 2007 rA couiz� SUBJECT: REPORT ON WATER AND FLOOD CONTROL LEGISLATION 2007 c . 3 SPECIFIC REQUEST(S)OR RECOMMENDATION(S)K BACKGROUND AND JUSTIFICATION RECOMMENDED ACTION: ADOPT the following positions and policies on water and flood control legislation: 1. SUPPORT SB 34 Torlakson; User fees and assessments 2. WATCH AB 5 Wolk; Flood protection, central valley and local flood plans 3. WATCH AB 1452 Wolk, Huffman; Central Valley Flood Protection 4. OPPOSE AB 70 Jones; Flood liability 5. OPPOSE UNLESS AMENDED SB 5 Machado; Flood management 6. OPPOSE UNLESS AMENDUD AB 162 Wolk; Land us a er sup ly n SIGNATURE(S)•:' Sup ' isor Gayle-B. Uilkema, Chair S pervisor Federal Glover CONTINUED ON ATTACHMENT: 0 SIGNATURE: RECOM'11ENDATION OF COITNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON �( L �� APPROVED AS RECOMMENDED �_ OTHER VOTE OF SUPERVISORS: � I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON UNANIMOUS(ABSENT f DM IL4-# ) MINUTES OF THE BOARD OF SUPERVISORS ON THE AYES: NOES: DATE SHOWN. ABSENT: ABSTAIN: Contact: Roberta Goulart(925)335-1226 RG:hr. C:\Documents and Settines\ldclaneywy Documents\Legislation\Water and FC ATTESTED 04/I O A Legislation 4-10-07.doc 301 IN CULLS-A.CLEIkK OF THE BOARD OF SUPERVISORS cc: Community Development Department Count-Administrator's Office.Administration County Administrator's Office;Risk Management Nielsen Merksamer.via CAO's office DEPUTY Public Works.Flood Control Sheriff-Coroner.Office of Emergency Services County Counsel SUBJECT: REPORT ON WATER AND FLOOD CONTROL LEGISLATION DATE: APRIL 10, 2007 PAGE: 2 of 7 FISCAL IMPACT: There is no fiscal impact to the County from the abovementioned action. REASONS FOR RECOMMENDATIONS AND BACKGROUND: During their April 9 meeting, the Transportation, Water & Infrastructure Committee (TWIC) discussed several pieces of proposed water and flood control related legislation that could impact the County. Below are descriptions of these legislative bills.staff analysis,and the implications for the County. Several of these bills are similar to bills discussed by the TWIC during last year's legislative session. In addition, some of these bills are the subject of ongoing negotiation,so they may be amended between the writing of this report and the TWIC and Board meetings. In addition to legislative positions recommended by the TWIC,general policy guidance has been added to provide direction to staff in negotiations and in providing a timely response in determining positions between reports to the Board. 1. SB 34(Torlakson)provides for a"beneficiary pays system"which would authorize the Reclamation Board to collect user fees and assessments to fund ongoing flood control maintenance. Clearly, additional funds for infrastructure improvements are necessary,and it would seem appropriate for some of these costs to be borne from those entities that benefit. General Policy Recommendations: • Oppose legislation that would increase liability for local government. • Support the concept of a`Beneficiary Pays System". • Support legislation that would streamline the process for local government to develop funding sources for maintaining flood control facilities. Recommended Legislative Position: Support SB 34 2. AB 5 (Wolk) would create the Central Valley Flood Protection Plan to address flood protection in the Central Valley. This would include Eastern Contra Costa County. Priority for state funds would be given to local agencies and counties that have adopted a local plan of flood protection. The local plan of flood protection includes a provision for the county to adopt an ordinance to mandate flood insurance and annually notify homeowners as to the level of flood protection and level of flood risk. The Central Valley Flood Protection Plan also must identify minimum flood protection standards for urban,rural,and small communities. Lastly,the bill states that the County shall not approve new development within high risk flood prone areas unless certain undefined conditions are met. 3. AB 1452 (Wolk and Huffman) sets priority guidelines for use of bond funds, has similar provisions for a Central Valley Flood Protection Plan and calls for connecting local land use decisions with State flood protection decisions,and increasing flood protection over 100 years. AB 1452 has no provision for protection of levees outside the state plan of flood control. Policy Discussion: Both AB 5 and AB 1452 attempt to address the disconnect between entities that maintain levees and flood control facilities and entities that approve land use on the properties protected by the levees and flood SUBJECT: REPORT ON WATER AND FLOOD CONTROL LEGISLATION DATE: APRIL 10, 2007 PAGE: 3 of 7 control facilities. The classic example is a levee built to agricultural standards to protect agricultural land and subsequently a city or county approves urbanization of the land protected by the flood control facility or levee. If no maintenance funding is provided to the entity maintaining the flood control facility or levee,then claims for damages against the maintenance agency can escalate beyond their means if a failure occurs. The implications associated with this issue include the following: • Development will have to pay to improve levees to modern standards. • Increase in development costs. • Consistent with Board policy that development pays for its impacts. • Development will have to pay for ongoing maintenance of levees. • Difficult to compete for funding levee maintenance if new development is approved behind levee. Making the connection between funding levee maintenance and land use decisions behind levees seems legitimate. If development is approved behind a levee,the levee should be brought up to modern standards for urbanized areas and the development should contribute to maintaining the levee. Recent studies by our Flood Control District have shown that some older flood control facilities no longer provide 100 year protection due to increased development in the upstream watershed. Development should pay for upgrading the facilities and help fund the ongoing maintenance. Another strategy is to require all parcels protected by a levee or flood control facility to pay an insurance policy to reduce the liability exposure for damages due to failure. In terms of funding potential, the County is fortunate in that it has strong General Plan language regarding development behind levees; in addition, much of the area is outside of the County's Urban Limit Line, making it inaccessible to development. However,because of some exceptions,the County has been stymied in its efforts to get state and federal funds for levee maintenance because of new developments in the east county area. Because of this development activity, the State has given low priority to levee maintenance on the county's delta levees. A strong policy statement by the Board reaffirming/strengthening our General Plan protections. or a new bold policy statement by the Board regarding development behind levees may offset the funding problems encountered here. General Policy Recommendations: • Reaffirm that development should pay for its impacts, including levee/flood control facility upgrades and maintenance. • Provide direction to staff on the undeveloped areas protected by levees inside the Urban Limit Line where development could occur. Currently these areas include Bethel Island, and the Cecchini and Pantages properties near Discovery Bay. • Support safe, scientifically-based increased levels of protection for deep-flooding leveed areas. Recommended Legislative Position: Watch AB 5; Watch AB 1452. 4. AB 70(Jones)attempts to spread liability for levee and flood control facility maintenance to local agencies such as cities,counties,and reclamation districts. In the event of a flood control facility failure,a local public entity may be "subject to joint liability and the state's right of contribution to the extent that the local public entity increases the state's exposure to liability for property damage by approving a new development in a previously undeveloped area". Policy Discussion: The State is responsible for 1,600 miles of levees in the Delta. Since a recent(Paterno)court SUBJECT: REPORT ON WATER AND FLOOD CONTROL LEGISLATION DATE: APRIL 10, 2007 PAGE: 4 of 7 case decision cost the State almost $500 million in damages for one levee break on the Yuba River, the State has been trying to reduce its liability exposure. The State Department of Water Resources believes the liability should be shared with local agencies,especially when local agencies increase the value of land behind the levees with their land use decisions. Another way to look at this,however,is from the larger perspective of who benefits from proper levee maintenance. The existing levee system provides flood protection for those who live in the Delta, but also provides a stable water supply for those who do not live in the Delta. Twenty three million people in the State rely on a stable water source through the Delta. It could be argued that levee maintenance responsibility should remain with the State, since levees provide such a state-wide benefit. (This may be analogous to Caltrans supporting a statewide transportation system.) The question then becomes,how do the beneficiaries pay to support the State's liability exposure for levee maintenance? This may be a more equitable approach than trying to push the liability onto individual local government agencies. Other alternatives such as Senator Torlakson's "beneficiary pays system" (discussed in the following paragraph),the imposition of legal liability limits,deed restrictions,and flood insurance requirements that could ease the flood liability to the state should be considered. Furthermore,because the phrase"...to the extent the local public entity increases the state's exposure to liability..." is undefined, it would be up to the courts to determine what the level of liability was for local government under individual claims by the state. This could add uncertainty to the fiscal posture of the county as reflected in its credit ratings, although this is not possible to predict with any precision. We have heard from CSAC that Senator Torlakson is proposing to sponsor a bill similar to ACA 13 last year that would remove some of the Prop 218 hurdles for local government to establish local funding sources for flood control facilities. Recommended Legislative Position: Oppose AB 70 (This bill's predecessor,AB 3050,was opposed by the County in the last legislative session.) 5. SB 5(Machado)would develop a comprehensive integrated Flood Protection Policy and Flood Management Program and establish roles and responsibilities for the State,Flood Control District,cities and counties,developers and property owners. SB 5 has been the subject of intense negotiations in Sacramento. It is unclear whether the legislation applies only to the Central Valley or to the entire state. Senator Machado has stated publicly that it should apply to the entire state,although most of the language in the bill indicates application to the Central Valley. Two particularly difficult issues for the County and cities is a requirement by a certain date to revise general plans to exclude any new residential development in an area with less that 500 year protection. Another administratively difficult provision is to annually notify property owners and mortgage holders that their parcel may be protected by a flood facility and directing them to further information about degree of protection, insurance requirements and consequences of not having insurance. The legislation also does not recognize the difference between areas subject to deep flooding and areas subject to shallow flooding. Attached is a January 18, 2007 memo sent to CSAC with more detailed comments. Policy Discussion: Current FEMA maps identify properties subject to 100 year flooding. We have no similar information on 500 year flood levels. The following are some of the implications if the level of flood protection is increased: • May be overly restrictive in floodplains with low depth of flooding. • May not be restrictive enough for high depth flooding,criteria would need to be established to determine an SUBJECT: REPORT ON WATER AND FLOOD CONTROL LEGISLATION DATE: APRIL 10, 2-007 PAGE: 5 of 7 appropriate and safe level of protection, and maps to identify these areas. • May impact standard of care for Reclamation District levee maintenance. • Assuming the County must pay for damages resulting in a levee or flood control facility failure,what would be the acceptable level of risk? The appropriate level of protection for a given area really depends on the level of damage that would occur in the event of a levee or flood control facility failure. For example,in areas within the typical floodplains along the creeks of Contra Costa County, the depth of flooding is relatively shallow. In a 100 year storm event streets would be flooded,yards could be flooded,but most homes would be above the flood waters. In the far East County,in areas protected by levees,failure of the levee would result in a high depth of flooding(5 to 10 feet). In this case structures would be inundated, emergency response would be difficult, property damages would be very high and the risk to life and safety much higher than with shallow flooding. The appropriate level of protection for areas of deep flooding should be higher than for areas of relatively shallow flooding. To provide 500 year level of protection through the Delta would require building higher and broader levees and/or storing flood flows in reservoirs behind dams or perhaps enhancing existing or creating new bypasses and floodways. Increasing the level of protection may require the construction of new dams and storage reservoirs. It should be kept in mind that levees and flood protection is only one critical element of a healthy Delta. We also need to advocate for increased water quality and protection of the Delta's ecosystem. General Policy Recommendations: • Oppose increasing the level of flood protection unless it is for deep flooding areas only. • Oppose legislation that degrades water quality of the Delta in and around Contra Costa County. • Oppose legislation that would degrade the Delta's ecosystem in and around Contra Costa County. Recommended Legislative Position: Oppose SB 5 unless amended,in accordance with the discussion and policy guidance presented here. 6. AB 162 (Wolk) would require significant revision to and annual review of a General Plan's Land Use, Conservation and Safety Elements for areas which are subject to flooding. This would occur at the time of the next revision of the Housing Element,on or before January 1,2008. The Land Use Element would identify and annually review areas subject to flooding, as determined by the Federal Emergency Management Agency (FEMA) or the Department of Water Resources(DWR). The Conservation Element would identify rivers,creeks,flood corridors that convey floodwaters, and to consider groundwater recharge and stormwater management. The Safety Element would identify flood hazard zones, which are hazard areas shown on the FEMA flood insurance rate snap, or information provided by the Corps,Office of Emergency Services,or DWR(these are often in conflict).In addition, goals,policies and objectives for protection of the public,avoiding,minimizing,evaluating flood risk,and locating public facilities outside of flood zones are required. Consultations with other agencies such as the California Geological Survey and the Reclamation Board are required prior to General Plan revision. The legislation would provide that housing would not occur on lands where infrastructure is inadequate to avoid flood risk. Policy Discussion: The County General Plan already includes a number of the requirements contained in this bill. However there are many additional requirements which would require additional staff time and would incur significant funding to fulfill. Some streamlining of these requirements would be advised,as the legislation requires use of several types of floodplain mapping which are often conflicting.Extensive hydraulic studies would need to be conducted to satisfy the identification of areas subject to inundation in the event of levee failure. There would be SUBJECT: REPORT ON WATER AND FLOOD CONTROL LEGISLATION DATE: APRIL 10, 2007 PAGE: 6 of 7 insufficient time to engage in hydraulic and other studies before the General Plan revision date of January 1,2008. Finally, we question the requirement calling for cooperative working relationships among public agencies with responsibility for flood protection; this does not seem relevant when dealing with General Plan revision requirements. General Policy Recommendations: • Oppose(flood control)legislation that includes costly requirements without dedicated funding to accomplish these tasks. • Oppose (flood control) legislation that includes additional planning agency requirements without consideration toward streamlining these actions, particularly where permitting is required by the local agency. Recommended Legislative Position: Oppose AB 162 unless amended. Other Legislation of interest: a. AB 909 (Wolk) adds provisions in the Proposition 84 bond measure to include remediation of mercury contamination. This additional language added to Proposition 84 would allow the County to apply for grants from the State Board to help fund the cleanup of the Mount Diablo Mercury Mine. General Policy Recommendation: • Support legislation that would provide funding the clean up of abandoned mines. • Support legislation that waives liability if a state/local agency seeks to remediate mercury contamination on private property. Recommended Legislative Position: Support AB 909(A support position is the subject of a separate Board Order.) b. SB 1001 (Perata) would revise the appointed members of the Regional Water Quality Control Boards in California.. The Regional Boards currently consist of nine members with requirements of various experience or membership'in various associations.Existing membership includes one person with county government experience, and one person with municipal government experience. SB 1001 would reduce Regional Board membership to.five members, with each member having a degree or experience in specific areas of water quality or water resources. The proposed legislation would revise membership to focus more on education rather than experience. The real issue for the County is the revised membership would have no required experience in local government. Staff is working with CSAC to research the intent behind this bill and is recommending a pending position at this time. General Policv Recommendations: • Oppose legislation to revise Regional Board membership that does not include local government experience. Recommended Legislative Position: Pending SUBJECT: REPORT ON WATER AND FLOOD CONTROL LEGISLATION DATE: APRIL 10, 2007 PAGE: 7 of 7 C. SB 27 (Simitian) would enact the Clean Drinking Water, Water Supply Security and Environmental Improvement Bond Act of 2007. The bill would require a$5 billion dollar bond act to be put before the voters of California at an (as yet) unspecified election date. The ballot measure would finance a"water conveyance" and environmental improvement program. In this legislation, "water conveyance"means to "construct a clean water project to relocate the existing delta intake facilities of the State Water Resources Development System and the Central Valley Project to the Sacramento River.". In the parlance of prior years, this was better known as a Peripheral Canal, or more recently, an isolated transfer facility. This bill implements a number of other actions, including the formation of a new state agency, called the Water Quality and Environmental Improvement Agency,requiring a representative from each delta county on the Board of Directors. This agency would contract with the state Department of Water Resources (DWR) to build the conveyance facility. DWR would use its powers of eminent domain and land acquisition to obtain the necessary right-of-way. The new intake would be constructed downstream of the EBMUD/Sacramento County Freeport facility. The legislation even goes as far as dictating language to be used on the ballot, as follows. Ballot 'Title: "Clean Drinking Water,Water Supply Security,and Environmental Improvement Act of 2007". Ballot description: "This act provides for a bond issue of five billion dollars($5,000,000,000)to provide funds to substantially improve drinking water quality,enhance the environment,and prevent disasters from interrupting California's major water supply." Any revenue generated from the new"facility"would go into an Environmental Fund, to be used for grants in the areas of water conservation, wastewater reclamation, desalination, and low income household rate decreases. Remaining funds could be used for climate change,wetlands, public access,Klamath River restoration,bay-delta habitat restoration, parks, parkways, and levees. d. SCA 2,a resolution,also sponsored by Senator Simitian,proposes a constitutional amendment establishing "requirements for the amendment or repeal" of the subject Clean Drinking Water, Water Supply Security, and Environmental Improvement Bond Act. SCA 2 would become active only in the event the bond act is approved. Recommended Legislative Position: An opposition position to SB 27 and SCA 2 will be the subject of separate Board Report,authored by Chair Piepho. AMENDED IN SENATE MARCH 20, 2007 SENATE BILL No. 34 Introduced by Senator Torlakson December 4, 2006 An act relating to water. LEGISLATIVE COUNSEL'S DIGEST SB 34, as amended, Torlakson. User fees and assessments: Sacramento-San Joaquin Delta flood control. Under existing law,various levee or conveyance system maintenance programs are undertaken by federal, state, or local public agencies in the Sacramento-San Joaquin Delta and in other parts of the state. Proposition IE, approved by the voters at the November 7, 2006, general election,enacted the Disaster Preparedness and Flood Prevention Bond Act of 2006. The act authorizes the state to sell approximately $4.1 million in general obligation bonds for various flood management programs. This bill would deelare legislative intent to authorize require the Reclamation Board, in consultation with the Department of Water Resources, to establish a "beneficiary pays system" and author•ile the board to collect user fees and assessments for levee maintenance and other flood control purposes in the delta.This bill would further-dee afe legislative intent require that a significant portion of the state bond funds approved in Proposition 1 E be prioritized in conjunction with the "beneficiary pays system." Vote: majority. Appropriation: no. Fiscal committee: no--.Yes. State-mandated local program: no. 98 SB 34 —2— The 2—The people of the State of Cal ybrnia do enact as.f6 lotiws: 1 SECTION 1. 2 The Reclamation Board, in consultation with the Department of 3 Water Resources,-4e shall establish a "beneficiary pays system" 4 and be authorized to collect user fees and assessments for levee 5 maintenance and other flood control purposes in the 6 Sacramento-San Joaquin Delta. it is fttrther--the intent of-the 7 A significant portion of the state bond 8 funds approved by the voters in the enactment of the Disaster 9 Preparedness and Flood Prevention Bond Act of 2006 in the 10 November 7, 2006, general election .shall be prioritized in 1 1 conjunction with the "beneficiary pays system." O 98 CALIFORNIA LEGISLATURE-2007—o8 REGULAR SESSION ASSEMBLY BILL No. 5 Introduced by Assembly Member Wolk December 4, 2006 An act to add Chapter 4 (commencing with Section 8200) to Part 1 of, and to add Chapter 6 (commencing with Section 8470) to Part 2 of, Division 5 of the Water Code, relating to water. LEGISLATIVE COU'NSEL'S DIGEST AB 5, as introduced, Wolk. Flood Protection: local: central valley: plans. Existing law prescribes various responsibilities of state agencies, counties,cities,districts,and landowners with respect to levees.Existing law regulates the inspection, improvement,and maintenance of project and nonproject delta levees, as those terms are defined. Under existing law, the Department of Water Resources and the Reclamation Board administer various flood control programs. This bill would require an unspecified entity to create the Central Valley Flood Protection Plan to address flood protection in the central valley. The bill would authorize local agencies to create a local plan of flood protection meeting the requirements of the bill,and would require priority for state funds to be given to local agencies that have adopted a local plan of flood protection. The bill would create the Local Flood Protection Plan Assistance Fund to, upon appropriation by the Legislature, assist local agencies by awarding grants to those agencies to conduct necessary activities in the development of a local flood protection plan.The bill would prohibit local governments in the central valley from approving new developments within high-risk flood prone 99 AB —2— areas,unless unspecified conditions are met to ensure appropriate levels of flood protection. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. The people of the State of'Califwnia(16 el7aCt as,follows. 1 SECTION 1. Chapter 4 (commencing with Section 8200) is 2 added to Part 1 of Division 5 of the Water Code, to read: 3 4 CHAPTER 4. LOCAL FLANS OF FLOOD PROTECTION 5 6 8200. This chapter- shall be known and may be cited as the 7 Local Flood Protection Planning Act. 8 8201. For the purposes of this chapter, "local agency" 9 means 10 8202. (a) A local agency may prepare a local plan of flood 11 protection in accordance with this chapter. 12 (b) A local plan of flood protection shall include all of the 13 following: 14 (1) A plan to meet or include a strategy to meet minimum flood 15 protection standards forurban,rural,and small communities within 16 the jurisdiction of the local agency. 17 (2) Identification and assessment of the various facilities that 18 provide flood protection for- flood prone areas, including project 19 levees, nonproject levees, setback levees, upstream flood control 20 dams, bypasses, watershed management, and other facilities. 21 (3) Identification of current and future flood corridors and any 22 necessary future flood protection facilities. 23 (4) Identification of needed improvements to the existing flood 24 protection facilities necessary to meet flood protection standards 25 for urban, rural, and small communities within the jurisdiction of 26 the local agency. 27 (5) An emergency response and evacuation plan for flood prone 28 areas. 29 (6) A strategy to achieve multiple benefits including flood 30 protection, groundwater recharge, cost savings, and ecosystem 31 health. 32 (7) A long-term funding strategy for improvement and ongoing 33 maintenance and operation of flood protection facilities. 99 -3— AB 5 1 (8) Approval of an ordinance to mandate flood insurance and 2 annually notify homeowners as to the level of flood protection and 3 the level of flood risk. 4 (c) Prior to the adoption of the local plan of flood protection, 5 the local agency shall submit the plan to the Department of Water 6 Resources or the Reclamation Board to assure consistency with 7 the Central Valley Flood Protection Plan created pursuant to 8 Section 8472. 9 (d) Priority for state funds shall be given to local agencies that 10 have adopted a local plan of flood protection. 11 8203. (a) There is hereby created the Local Flood Protection 12 Plan Assistance Fund, which shall be administered by the 13 Department of Water Resources. 14 (b) Upon appropriation by the Legislature, the money in the 15 fund may be used by the department to assist local agencies by 16 awarding grants to those agencies to conduct necessary activities 17 in the development of a local flood protection plan in accordance 18 with this chapter. 19 SFC. 2. Chapter 6 (commencing with Section 8470) is added 20 to Part 2 of Division 5 of the Water Code, to read: 21 22 CIIAPTER 6. CENTRAL.VALLEY FLOOD PROTECTION 23 24 8470. This chapter shall be known and may be cited as the 25 Central Valley Flood Protection Planning Act. 26 8471. For the purposes of this chapter, the following terms 27 have the following meanings: 28 (a) "Rural" means 29 (b) "Small community" means 30 (c) "Urban" means 31 8472. (a) The shall create the Central Valley Flood 32 Protection Plan to address flood protection in the central valley. 33 (b) The Central Valley Flood Protection Plan shall include 34 minimum flood protection standards for urban, rural, and small 35 communities. 36 (c) The Central Valley Flood Protection Plan shall acknowledge 37 and identify the various facilities that provide flood protection for 38 flood prone areas, including project levees, nonproject levees, 39 setback levees, upstream flood control dams,bypasses, watershed 40 management, and other facilities. 99 AB 5 —4- 1 (d) The Central Valley Flood Protection Plan shall include 2 emergency response planning in high-risk flood prone areas. 3 (c) The Central Valley Flood Protection Plan shall recognize 4 and encourage projects that achieve multiple benefits including 5 flood protection, groundwater recharge, cost savings, and 6 ecosystem health. 7 (f) The Central Valley Flood Protection Plan shall include a 8 long-term funding strategy. 9 8473. (a) The Legislature finds and declares all of the 10 following: 1 1 (1) In the central valley, the state has assumed the primary 12 responsibility for protecting its citizens from floods.The state has 13 worked closely with the United States Army Corps of Engineers 14 to develop, construct, and maintain flood control projects. 15 (2) Local governments have the primary responsibility for 16 planning and approving various land uses within their jurisdiction. 17 The land use planning function, however, is often disconnected 18 from the operations of state or local agencies that protect the 19 jurisdiction from floods. As a result, land use decisions are based 20 onlimitedinformation regarding flood management and protection. 21 (3) In order to connect local government land use decisions with 22 state flood management policies, financing, and facilities, it is 23 necessary for local government land use decisions to include 24 con firmationthat new developmentswillenjoysufficientprotectiOil 25 from flood hazards. 26 (4) The current Iederal flood standard is not sufficient in 27 protecting urban areas in high-risk flood prone areas'ofthe central 28 valley. 29 (b) Unless the conditions set forth in are met to ensure 30 appropriate levels of flood protection, local governments in the 31 central valley shall not approve new developments within high-risk 32 flood prone areas. O y„ CALIFORNIA LEGISLATURE-200]—o8 REGULAR SESSION ASSEMBLY BILL No. 1.452 Introduced by Assembly Members Wolk and Huffman February 23, 2007 An act to add Part 6 (commencing with Section 9600) to Division 5 of the Water Code, relating to water. LEGISLATIVE COUNSEL'S DIGEST AB 1452, as introduced, Wolk. Central Valley Flood Protection. Under existing law, the Department of Water Resources performs various flood control activities throughout the state. Existing law �., authorizes the Reclamation Board to engage in various flood control activities along the Sacramento River and the San Joaquin River, their tributaries,and related areas.Existing law requires the board to establish and enforce standards for the maintenance and operation of, and to undertake other responsibilities with regard to, flood control works under its jurisdiction. The Disaster Preparedness and Flood Prevention Bond Act of 2006 authorizes the issuance of bonds in the amount of$4,090,000,000 for the purposes of financing a disaster preparedness and flood prevention program. This bill would enact the Central Valley Flood Protection Act of 2008. The bill would prohibit the board from approving, and the department from providing, funding for any flood protection project that narrows flood channels or reduces the capacity of the flood protection system in the Sacramento-San Joaquin Valley to convey water. The bill would declare that it is the policy of the state that, to the maximum extent permitted by law, the expenditure of funds for flood protection in the Sacramento-San Joaquin Valley reflect specified priorities. The bill 99 AB 1452 —2— would 2—would require the department to correct deficiencies in flood protection facilities that present an imminent risk of failure and ilireaten human life. The department would be required to seek the maximum amount of federal and local cost-sharing contributions,but would be prohibited from delaying specified emergency repairs to obtain those contributions. The department would be required to investigate, develop, and establish a floodway or bypass, acquire land, or construct one or more facilities to significantly reduce flood stage in the San Joaquin River Watershed. The bill would authorize the department to investigate and assess the level of flood protection for communities in the Sacramento-San Joaquin Valley. The bill would authorize the department to provide financial assistance to cities,counties,and other local public entities to repair and replace levees, weirs, bypasses, and facilities in accordance with certain requirements and.to develop regional or local plans of flood protection.The bill would require the department to prepare a Central Valley Flood Protection Plan for the Sacramento-San Joaquin Valley. The bill would authorize the department to identify additional facilities that may become facilities of the State Plan of Flood Control, as defined. For the purpose of implementing the Disaster Preparedness and Flood Prevention Bond Act of 2006, the bill would require certain contracts to provide for the payment of additional compensation as a bonus for early completion of a project;require the department to develop project solicitation and evaluation guidelines for a stormwater flood management program; impose requirements relating to an annual investment strategy that the Governor is required to prepare; authorize the department to implement specified flood protection improvements for urban areas if certain requirements are met; and prohibit the expenditure of more than $100,000,000 on behalf of prescribed levee improvement programs until the department and the Department of Fish and Game carry out certain duties. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. The people of the State of California do enact as follows: 1 SECTION 1. Part 6(commencing with Section 9600)is added 2 to Division 5 of the Water Code, to read: 99 -3— AB 1452 1 PART 6. CENTRAL VALLEY FLOOD PROTECTION ACT 2 OF 2008 3 4 CHAPTER 1. GENERAL PROVISIONS AND DEFINITIONS 5 6 9600. This act shall be known and may be cited as the Central 7 Valley Flood Protection Act of 2008. 8 9601. The Legislature finds and declares all of the following: 9 (a) In November 2006,California voters approved the issuance 10 of an unprecedented amount of general obligation bonds for 11 infrastructure, including almost five billion dollars 12 ($5,000,000,000) for flood protection. While those bonds will 13 allow California to fix its aging flood infrastructure, that amount 14 only begins to address the state's funding requirements to create 15 a sustainable flood protection system for the Central Valley.With 16 limited funding,the State of California needs to establish priorities 17 for allocating these bond funds. 18 (b) The challenge of protecting Californians from a flood in the 19 Central Valley has changed. The flood protection system in the 20 Central Valley was designed to wash gold-rush era sediment 21 downstream and out to sea,with narrow channels created by levees 22 of varying quality. The flood protection system, established in 23 1913, worked so well that the sediment has washed out and 24 low-level flood flows now wash away the levees.Two minor floods 25 in 2006 created 71 new sites of critical levee erosion, which will 26 require substantial funding for repair. Decisions as to future 27 expenditure of flood funding therefore.need to reflect these new 28 challenges. 29 (c) The governmental context for protecting Californians from 30 floods also has changed.A 2003 decision by a state court of appeal 31 held the state responsible for not having a reasonable plan for 32 protecting Sacramento Valley residents and businesses from floods. 33 Since Hurricane Katrina, the United States Army Corps of 34 Engineers has received less funding for flood protection in the 35 Central Valley, and has relied on state funding for its work. The 36 Federal Emergency Management Agency has begun preparing 37 new flood maps that will show more Central Valley communities 38 at higher risk of flooding. Central Valley cities and counties have 39 developed a greater awareness of the flood risk that their residents 40 face. 99 AB 1452 —4- 1 4-1 (d) California has invested billions of dollars in its existing flood 2 protection facilities, but those facilities have rapidly deteriorated 3 in recent years. Those facilities have served California well in the 4 past, but their continued success may be questioned under the 5 rapidly changing conditions in the Central Valley. The current 6 flood protection system does not have the capacity to convey a 7 substantial amount of floodwater without the threat of damage to 8 growing urban centers.Climate change is likely to exacerbate flood 9 conditions.The state needs to continue repairing the current system, 10 as it considers how to reformulate its plan for flood protection in 11 the Central Valley. 12 9602. Unless the context otherwise requires, the definitions 13 set forth in this section govern the construction of this part. 14 (a) `Board"means the Reclamation Board. 15 (b) "Central Valley Flood Protection Plan" means the plan 16 prepared pursuant to Section 9617 and includes the State Plan of 17 Flood Control as defined in subdivision 0) of Section 5096.805 118 of the Public Resources Code. 19 (c) "Facilities of the State Plan of Flood Control"has the same 20 meaning as set forth in subdivision(e)of Section 5096.805 of the 21 Public Resources Code. 22 (d) "Flood hazard zone"means an area subject to flooding that 23 is delineated as either a special hazard area or an area of moderate 24 or minimal hazard on an official flood insurance rate map issued 25 by the Federal Emergency Management Agency. 26 (e) "Levee flood protection zone"means the area,as determined 27 by the board or the department,that is protected by a project levee. 28 (f) "One hundred-year standard" means protection that is 29 sufficient to withstand flooding that has a 1-in-100 chance of 30 occurring in any given year, without regard to any previous 31 presumption lacking substantial evidence that the relevant levee 32was sufficient to withstand that flooding, considering reasonably 33 foreseeable development in the watershed. 34 (g) "Project levee' has the same meaning as set forth in 35 subdivision (g) of Section 5096.805. 36 (h) "Sacramento-San Joaquin Valley" means any lands in the 37 bed or along or near the banks of the Sacramento River or San 38 Joaquin River, or any of their tributaries or connected therewith, 39 or upon any land adjacent thereto, or within any of the overflow 40 basins thereof,or upon any land susceptible to overflow therefrom. 99 -5— AB 1452 1 (i) "Urban area"means any contiguous area in which more than 2 10,000 residents are protected by project levees. 3 9603. Nothing in this part shall be construed to inhibit or delay 4 the completion of emergency repairs to project levees. 5 9604. The board shall not approve and the department shall 6 not provide funding for any flood protection project that narrows 7 flood channels or otherwise reduces the capacity of the flood 8 protection system in the Sacramento-San Joaquin Valley to convey 9 floodwater. 10 9605. (a) For purposes of complying with the Public Contract 11 Code, all expenditures funded pursuant to Sections 5096.821 and 12 5096.825 of the Public Resources Code shall be deemed to be in 13 response to an emergency. 14 (b) All contracts funded pursuant to Sections 5096.821 and 15 5096.825 of the Public Resources Code shall provide for the 16 payment of additional compensation to the contractor as a bonus 17 for completion of a project prior to the time specified in the 18 contract.This provision shall be included in the specifications and 19 shall clearly set forth the basis for that payment. 20 9606. (a) By March 15,2008,the department,in collaboration 21 with the State Water Resources Control Board, shall develop 22 project solicitation and evaluation guidelines to implement Section 23 5096.827 of the Public Resources Code. The guidelines may 24 include a limitation on the dollar amount of grants to be awarded. . 25 (b) Before finalizing the guidelines and disbursing grants for 26 the purposes of Section 5096.827 of the Public Resources Code, 27 the department shall conduct two public meetings to consider 28 public comments. The department shall publish the draft 29 solicitation and evaluation guidelines on its Internet Web site at 30 least 30 days before the public meetings. One meeting shall be 31 conducted at a location in Northern California and one meeting 32 shall be conducted at a location in Southern California. To the 33 extent feasible, the department shall provide outreach to 34 disadvantaged communities to promote access and participation 35 in those meetings. 36 (c) The guidelines shall include a priority for projects that 37 address the needs of disadvantaged communities. 38 (d) Upon adoption of the guidelines, the department shall 39 transmit copies of the guidelines to the fiscal committees and the 40 appropriate policy committees of the Legislature. 99 AB 1452 —6- 1 6-1 9607. The annual investment strategy to meet long-term flood 2 protection needs and minimize state taxpayer liabilities from 3 flooding required by paragraph (3) of subdivision (b) of Section 4 5096.820 of the Public Resources Code shall include an evaluation 5 and recommendation with regard to all of the following: 6 (a) Strategies to integrate the operation of the state's flood 7 protection system and water supply and conveyance system. 8 (b) Investments to increase the protection of existing urban 9 areas. 10 (c) The expansion of floodway conveyance capacity wherever 11 feasible. 12 (d) The opportunities for reservoir reoperation in conjunction 13 with flood plain and groundwater storage to increase flood 14 protection and water supply benefits. 15 (e) The design of flood control improvements to reduce erosion 16 and maintenance costs. 17 (f) Impacts on water supply and on the California Bay-Delta 18 Ecosystem Restoration Program. 19 20 CHAPTER 2. FLOOD SAFE CALIFORNIA PROGRAM 21 22 9610. The department and the board shall implement the Flood 23 Safe California Program as provided in this chapter, in order to 24 maintain, redesign, and improve the flood protection systems in 25 the Sacramento-San Joaquin Valley. 26 9611. (a) It shall be the policy of the state that,to the maximum 27 extent permitted by law, the expenditure of bond funds for flood 28 protection in the Sacramento-San Joaquin Valley approved by the 29 voters shall reflect all of the following priorities: 30 (1) Emergency flood facility repairs, as provided in Section ' 31 9612. 32 (2) Urgent community flood protection, as provided in Section 33 9613. 34 (3) Investigation and assessment of flood protection facilities 35 in the Sacramento-San Joaquin Valley, as provided in Section 36 9614. 37 (4) Financial assistance for regional or local flood protection 38 plans, as provided in Section 9615. 39 (5) Delta levee projects,as provided in Section 5096.821 of the 40 Public Resources Code. 99 -7— AB 1452 1 (6) Development of new strategies for flood protection in the 2 Sacramento-San Joaquin Valley, as provided in Section 9617. 3 (7) Adding of facilities to the State Plan of Flood Control, as 4 provided in Section 9618. 5 (b) The establishment of these priorities does not preclude the 6 allocation of funds for any of the purposes described in subdivision 7 (a) or for local efforts to address flood protection. It is the intent 8 of the Legislature to allocate funding equitably among all the 9 priorities identified in this section. 10 9612. (a) The department shall correct deficiencies in flood 11 protection facilities that present an imminent risk of failure and 12 threaten human life,including,but not limited to,repair of critical 13 levee erosion, flood fighting, and flood channel clearing in 14 accordance with any declaration of a state of emergency by the 15 Governor. 16 (b) The department shall seek the maximum amount of federal 17 and local cost-sharing contributions as reasonably possible, but 18 shall not delay emergency repairs that are subject to a declaration 19 described in subdivision(a)in order to obtain those contributions. 20 9613. (a) Consistent with subdivision(b)of Section 5096.821 21 of the Public Resources Code, the department may implement 22 flood protection improvements for urban areas protected by 23 facilities of the State Plan of Flood Control if the director 24 determines, in writing, that all of the following apply: 25 (1) The improvements are necessary to address an urgent and 26 significant risk of flooding and require state funding before the 27 completion of the Central Valley Flood Protection Plan prepared 28 pursuant to Section 9617. 29 (2) The improvements will reduce or avoid risk to human life 30 in one or more urban areas and do not transfer significant flood 31 risks to other urban areas. 32 (3) The improvements will not impair or impede future changes 33 to regional flood protection or the Central Valley Flood Protection 34 Plan. 35 (4) The improvements will be maintained by a local agency 36 with a record of good maintenance of existing facilities of the State 37 Plan of Flood Control. 38 (5) The affected cities,counties,and other public agencies have 39 sufficient revenue resources for the operation and maintenance of 40 the facility. 99 AB 1452 1 (6) Upon the allocation of funds for a project, the proposed 2 project is ready for implementation. 3 (7) The improvements may provide public benefits in addition 4 to flood protection. 5 (8) The improvements comply with existing law. 6 (b) The flood protection improvements authorized by this section 7 may include improvements to specific facilities of the State Plan 8 of Flood Control or acquisition of flood casements in lands adjacent 9 to facilities of the State Plan of Flood Control to increase levels 10 of flood protection for urban areas in accordance with subdivision 11 (b) of Section 5096.821 of the Public Resources Code. 12 (c) The department shall investigate, develop, and establish a 13 floodway or bypass,acquire land,or construct one or more facilities 14 to significantly reduce flood stage in the San Joaquin River 15 Watershed. 16 9614. (a) The department shall investigate and assess, or 17 provide financial assistance to cities, counties, or other public 18 agencies to investigate and assess,the level of flood protection for 19 communities in the Sacramento-San Joaquin Valley, including 20 flood protection provided by the facilities of the State Plan of Flood 21 Control. 22 (b) The investigation and assessment may include levee 23 investigation,hydrological modeling,development of technological 24 capability for real-time flood monitoring and management, 25 .evaluation of options to operate existing surface water reservoirs 26 to improve flood protection, and flood risk mapping. 27 (c) Assessments authorized by this section shall include 28 evaluation of all sources of flood risk, including seismic risk and 29 climate change to the extent information is available. 30 9615. (a) The department may provide financial assistance to 31 cities, counties, and other local public entities for repair, 32 rehabilitation, reconstruction, or replacement of levees, weirs, 33 bypasses, and facilities, including facilities of the State Plan of 34 Flood Control if all of the following apply: 35 (1) The affected cities or counties have adopted a regional or 36 local plan of flood protection that the department or the board 37 determines is consistent with the Central Valley Flood Protection 38 Plan. 99 -9— AB 1452 1 (2) The project provides additional flood protection exceeding 2 the 100-year standard for an area that is subject to significant flood 3 risk. 4 (3) The affected cities, counties, or other local public entities 5 have agreed to make contributions to cost-sharing, which may 6 include money or in-kind contributions. 7 (4) The affected cities, counties, or other local public entities 8 have identified adequate, long-term funding for operation and 9 maintenance. 10 (5) The project complies with all laws, including provision for 11 environmental mitigation required by federal, state, or local law, 12 either directly or indirectly through environmental mitigation 13 programs administered by the department. 14 (b) The department may provide financial assistance to cities, 15 . counties.,and other local public entities to develop regional or local 16 plans of flood protection that are described in paragraph (1) of 17 subdivision (a). The regional or local plans of flood protection 18 shall undertake to minimize risk of loss of life and provide for 19 mitigation of loss of existing floodplain storage. 20 9616. Of the funds made available pursuant to Section 5096.821 21 of the Public Resources Code,not more than one hundred million 22 dollars ($100,000,000) may be allocated for the purposes of 23 subdivision (c) of that section until the department and the 24 Department of Fish and Game carry out the requirements set forth 25 in Sections 139.2 and 139.4. 26 9617. (a) The department shall prepare a Central Valley Flood 27 Protection Plan for. the Sacramento-San Joaquin Valley that 28 includes a description of both structural and nonstructural means 29 for improving the performance and elimination of deficiencies of 30 levees, weirs, bypasses, and facilities, including facilities of the 31 State Plan of Flood Control, and, wherever feasible, a description 32 of actions intended to meet multiple objectives, including each of 33 the following purposes: 34 (1) Reduce the risk to human life, health, and safety from 35 flooding. 36 (2) Expand the capacity of the flood protection system in the 37 Sacramento-San Joaquin Valley to either reduce flood flows or 38 convey floodwaters away from urban areas. 39 (3) Link the flood protection system with the water supply 40 system. 99 AB 1452 _10- 1 10-1 (4) Connect state flood protection decisions to local land-use 2 decisions for improvement of flood protection capability. 3 (5) Improve flood protection for urban areas to a level exceeding 4 the federal minimum 100-year standard, including increased 5 reliance on upstream floodway corridors. 6 (6) Provide sufficient flood protection for small communities 7 and rural areas to a standard deemed appropriate by the department. 8 (7) Promote natural dynamic hydrologic and geomorphic 9 processes. 10 (8) Reduce damage from flooding. 11 (9) Increase and improve the quantity,diversity,and connectivity 12 of riparian, wetland, floodplain, and shaded riverain aquatic 13 habitats, including the agricultural and ecological values of these 14 lands. 15 (10) Minimize the flood management system operation and 16 maintenance requirements. 17 (11) Promote the recovery and stability of native species 18 populations and overall.biotic community diversity. 19 (12) Identify opportunities and incentives for increasing use of 20 floodway corridors. 21 (13) Provide a feasible, comprehensive, long-term financing 22 plan for implementing the plan. 23 (b) The department shall prepare the Central Valley Flood 24 Protection Plan in a manner that is consistent with the state 25 planning priorities described in Section 65041.1 of the Government 26 Code. 27 9618. (a) Upon completion of the Central Valley Flood 28 Protection Plan pursuant to Section 9617, the department may 29 identify additional facilities that may become facilities of the State 30 Plan of Flood Control, consistent with the Central Valley Flood 31 Protection Plan, if those facilities will increase the level of flood 32 protection for urban areas to exceed the 100-year standard. 33 (b) For the purposes of subdivision (a), facilities that may 34 become facilities of the State Plan of Flood Control include 35 bypasses,floodway corridors,floodplain storage,or other projects 36 that expand the capacity of the flood protection system in the 37 Sacramento-San Joaquin Valley to provide flood protection. O 99 AMENDED IN ASSEMBLY FEBRUARY 21, 2007 CALIFORNIA LEGISLATURE-2oo7—o8 REGULAR SESSION ASSEMBLY BILL No. 70 Introduced by Assembly Member Jones December 4, 2006 An act to add f Division ` f. Section 8307 to the Water Code, relating to flood liability. LEGISLATIVE COUNSEL'S DIGEST AB 70, as amended, Jones. Flood liability. Existing law, under various circumstances, subjects a public entity or an employee of a public entity to liability for property damage or personal injury caused by or from floods or floodwaters. This bill wottid subjeet,in addition to my other legal liability impat�ed levee when flood levels are antieipated to exeeed 3 feet fim a 200-yeff flood event, as speeified. This bill would pro►,ide that liabilh)for property damage or personal injury shall rest jointly with all state and local public entities that participate in the design, construction, operation, or inaintenance of a flood control project when theflood control project.fails to./unction as intended and causes property dainage or personal injury in areas historically subject to flooding. The bill would provide that the state is entitled to a right of contribution against any local public entity whose actions, or failure to act, contributes to the failure of a flood control 98 AB 70 —2— project 2—project when that failure causes property damage or personal injury and a judgment has been entered against the state. The bill would .subject a local public entity to joint liability and the state's right of contribution to the extent that the local public entity increases the state s exposure to liabilityfor property damage by approving new development in a previously undeveloped area, as defined. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. The people of the State of California do enact as follows: 1 SECTION]. (a) The Legislature,finds and declares that recent 2 court rulings have upheld liability on the part of the state under 3 theories of inverse condemnation or various tort causes of action 4 for property damage or personal injury caused bj, the failure of 5 state and local flood control protects. 6 (b) It is the intent of the Legislature that the state and local 7 public entities share liability for property damage or personal 8 injury associated with a failure of a flood control project. 9 SEC. 2. Section 8307 is added to the dater Code, to read.- 10 8307. (a) If a flood control pr ojec•t.fails to firrrc•tion as intended, 11 and causes proper>}? damage or personal injury in areas 12 historically subject to flooding, liability.for that darrrage or injury 13 shall rest jointly with all state and local public entities that 14 participate in the design, construction, operation, or maintenance 15 of theflood control project.Liability shall be equitably apportioned 16 according to the extent to which the public entity has the power 17 to control and correct the aspect of the flood control project that 18 causes the failure and resulting property damage or personal 19 injury. 20 (b) If the failure of a flood control project causes property 21 damage or personal irrjurt; and a judgment has been entered 22 against the state or a state agency determined to be liable.for the 23 damage or injury, the state is entitled to a right of contribution 24 against any local public entity whose actions, or,faihrre to act, 25 contributes to the failure of the flood control project. The right of 26 contribution shall apply whether- the action against the state or 27 state agency is brought in tort or inverse condemnation. 28 (c) (1) Whether-or not a local public entity directly participates 29 in the operation or maintenance of a flood c•orrtrol project, it is 98 -3— AB 70 1 subject to joint liability and the state's right of contribution to the 2 extent that the local public entity increases the state's exposure to 3 liability.for property damage by approving new development in a 4 previously undeveloped area. 5 (2) For- the purpose of this subdivision, an undeveloped area 6 means an area devoted to "agricultural use,"as defined in Section 7 51201 of the Government Code, or "open space land,"as defined 8 in Section 65560 of the Government Code. 9 10 added to Part-2 of Divisiott 5 of the %ter Gode, to read: 11 12 CHAPTER 6. FtOOD LfABftfTNF 13 14 8460. (a) in addition to any othef legal liability it:nposed by 15 law, a eity or eotinty is subjeet to joint habilitr, whether or not the 16 17 ,for property damagge 18 by approving new developtnent in an undeveloped area that is 19 proteeted by a pfojeet le-vee where flood levels are atttieipated te, 20 exeeed three feet for a 200 year flood evetit based on the 20921 21 eornprehensive stttt4y by the United States ATmy Corp 22 23 . 24 (b) This seetion does not prevent a loeal publie entity from 25 . 26 , the following tertns have the 27 28 29 , 30 eenditions, and mode of tnaintetianee and opefations within th-e 31 , 32 and of flood eentrol projeets in the Saeramento 144-ver and S 33 34 (eantmeneing with Seetion 12648) of Ghapter -2 of Part 6 of 35 Division 6.. 36 37 use,=us defined in SeGtion 51291 of the Cod 98 AB 70 —4— I 4-1 , as defined in Seetion 65560 of the Goverttment 2 Ewe. O 98 AMENDED IN SENATE MARCH 26, 2007 SENATE BILL No. 5 Introduced by Senator Machado December 4, 2006 An act to add Article 8 (commencing with Section 8724) to Chapter 3 of Part 4 of Division 5 of the Water Code, relating to flood management. LEGISLATIVE COUNSEL'S DIGEST SB 5, as amended, Machado. Flood management. (1) The existing Disaster Preparedness and Flood Prevention Bond Act of 2006,approved by the voters at the November 7,2006,statewide general election,authorizes the issuance.and sale of bonds in the amount of$4,090,000,000 for the purposes of financing disaster preparedness and flood prevention projects.That existing act requires the compilation of a state plan of flood control. The Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal Protection Bond Act of 2006,approved by the voters at the November 7, 2006, statewide general election, authorizes the issuance and sale of bonds in the amount of$5,388,000,000 to fund projects and expenditures relating to safe drinking water, water quality and supply, flood control, waterway and natural resource protection, water pollution and contamination control, state and local park improvements,public access to natural resources,and water conservation efforts. This bill would make legislative findings and declarations regarding the necessity of developing a comprehensive integrated flood policy and flood management program that addresses all aspects of flood 98 SB5 —2— management,clarifying the roles and responsibilities of the state,local flood management agencies, cities and counties, developers, and property owners as part of an integrated flood policy, and integrating the flood-related funding authorized by those bond acts with the integrated flood policy and flood management program.The bill__.e__,a state the intent oF the Legislature to establish md elafify the roles a"d responsibilities (5f speeified entities for nianaging flood risk Mid to invest bond fttfids made available by,the bond aets eottsistent with those roles and responsibilities. (l) The Department of Water Resources performs various flood control activities throughout the state. Existing law authorizes the Reclamation Board to engage in various flood control activities along the Sacramento Rifer and Sara Joaquin River, their tributaries, and related areas. This bill would require the department, on or before Januar), 1, in years ending in 0 and S., to prepare the Sacramento-San Joaquin River Flood Management System Plan. The bill would require the board, on or before March 31, in years ending in 0 and S, to adopt the plan. The bill would require the plan to include specified components, including a description of the Sacramento-San Joaquin River Flood Management System, as described, a description of the performance of the system and challenges to modifying the system to provide appropriate levels of flood protection, and findings and rec•ornrnendations with regard to structural and nonstructural projects that, upon completion, will significantly reduce flood risks within the Sacramento and San Joaquin Rivers drainage. The department would be required to include in the plan evaluations of the methods for improving the performance of the system, the structural improvements necessar v to bring each of the_facilities of the State Plan of'Flood Control for the Central Valle}; as defined, to within its design standard, methods fa-providing an urban level of flood protection to urbanized areas, and methods_for reducing flood risks in nonurbanized areas. Upon the adoption of the plan by the board,specified facilities would be deemed to be part of the system and the board would be required to take action necessary to remove certain facilities from the State Plan of Flood Control for the Central Vallee The department would be required to prepare, and the board to adopt, a schedule of implementation for recommended actions. Vote: majority. Appropriation: no. Fiscal committee: ttoyes. State-mandated local program: no. 98 -3— SB 5 The people of the State of California do enact as,follows: 1 SECTION 1. The Legislature finds and declares all of the 2 following: 3 (a) To successfully improve state flood policy and reduce flood 4 risks, it is necessary to develop a comprehensive integrated flood 5 policy and flood management program that addresses all aspects 6 of flood management. 7 (b) Further, as part of an integrated flood policy, it is necessary 8 to clarify the roles and responsibilities of the state, local flood 9 management agencies, cities and counties, and developers and 10 other property owners. 11 (c) It is also necessary to integrate the flood-related funding 12 authorized by the Disaster Preparedness and Flood Prevention 13 Bond Act of 2006 (Chapter 1.699 (commencing with Section 14 5096.800) of Division 5 of the Public Resources Code) and the 15 Safe Drinking Water, Water Quality and Supply, Flood Control, 16 River and Coastal Protection Bond Act of 2006 (Division 43 17 (commencing with Section 75001)of the Public Resources Code) 18 with the integrated flood policy and flood management program. 19 As part of this integration of policy with financing, it is important 20 that cost-sharing rules for flooding be consistent statewide. 21 (d) In expending the bond funds,the priority should be to protect 22 current populations,public safety,and public safety infrastructure. 23 (e) Many urban populations have an inadequate Ievel of flood 24 protection.At the 4th Biennial CALFED Science Conference 2006, 25 credible evidence was presented suggesting that a 500-year level 26 of flood protection is the minimum level of protection that should 27 be considered for urbanized areas. 28 (f) The integrated strategy for improving the level of flood 29 protection should include changes in land use and land use 30 planning.Changes in land use planning requirements should begin 31 as soon as practicable. The start date for these changes will be 32 dependent upon a number of events, including,but not limited to, 33 all of the following: 34 (1) When new flood risk maps are available. 35 (2) When the Department of Water Resources and the 36 Reclamation Board have completed their assessments of the current 37 performance of state flood control. 98 SB 5 —4- 1 (3) When the Department of Water Resources and the 2 Reclamation Board have amended the state plan of flood control 3 to add or remove facilities. 4 (4) When the Department of Water Resources and the 5 Reclamation Board have identified and adopted a schedule for 6 implementing structural and nonstructural improvements to the 7 state plan of flood control that improve the operation of the system 8 and reduce flood risk systemwide. 9 (5) When the Department of Water Resources, local flood 10 management agencies, and cities and counties have identified and 11 adopted a schedule for implementing structural and nonstructural 12 improvements to the state plan of flood control that improve the 13 operation of the system and reduce flood risk systemwide. 14 SEC. 2. Article 8(c•omntencing with Section 8724) is added to 15 Chapter-3 of Part 4 of Division 5 of the Water Code, to read: 16 17 Article 8. Sacramento-San Joaquin River Flood Management 18 System 19 20 8724. Unless the context requires otherwise, the definitions 21 set forth in this section govern the construction of this article. 22 (a) "Plan" means the Sacramento-San Joaquin River Flood 23 Managetnent System Platz. 24 (b) "State Plan of Flood Control.for the Central Vallee" has 25 the meaning set forth in subdivision 6) of Section 5096.805 of'the 26 Public Resources Code. 27 (c) "System" means the Sacramento-San Joaquin River Flood 28 Management System described in Section 8725. 29 8725. The Sacratrrento-San Joaquin River-Flood Managetnent 30 System comprises all of the following: 31 (a) The facilities of the State Plan of Flood Control_for the 32 Central Vallev as that plan ntay he amended pursuant to this 33 article. 34 (b) Any existing darn, levee, or other flood ntanagenient.facilio, 35 that is not part of the State Plan of Flood Control for the Central 36 Valla: that the board determines, pursuant to this article, does 37 one or more of the.following: 38 (1) Provides significant systeinwidebenefzts.formanagingflood 39 risks within the Sacramehto and San Joaquin Rivers drainage. 98 -5— SB 5 1 (2) Protects urban areas within the Sacramento and San Joaquin 2 Rivers drainage. 3 (c) Structural and nonstructural projects that are adopted by 4 the board pursuant to this article and designed to reduce flood 5 risks within the Sacramento and San Joaquin Rivers drainage. 6 8725.5. (a) The department shallprepare,e, and the board shall 7 adopt, the Sacramento-San Joaquin River Flood Management 8 System Plan in accordance with this article. 9 (b) On or before January 1,in years ending in 0 and S, the 10 department shall submit the proposed plan to the board. 11 (c) The board shall hold at least two hearings to receive 12 comments on the proposed plan.At least one hearing shall be held 13 in the Sacramento Valley and at least one hearing shall be held 14 in the San Joaquin Valley. The board shall also accept c•orrrrrrents 15 in writing with regard to the proposed plan. 16 (d) The board may make changes to the proposed plan to resolve 17 issues raised in the hearings or to respond to comments received 18 by the board The board shall publish its proposed changes to the 19 proposed plan at least two weeks before adopting the plan. 20 (e) On or before March 31, in years ending it?0 and 5, the board 21 shall adopt the plan. 22 8726. The preparation of the plan pursuant to this article is 23 not subject to the California Environmental Quality Ac•t(Division 24 13 (commencing with Section 21000) of'the Public Resources 25 Code). 26 8726.5. The department or the board may appoint one or more 27 advisory committees to assist in the preparation of the plan. 28 8727. The plan shall include all of the following: 29 (a) A description of the Sacramento-San Joaquin River Flood 30 Management System. 31 (b) A description of the performance of the system and the 32 challenges to modifi,ing the system to provide appropriate levels 33 offlood pr otection, and findings and recommendations with regard 34 to structural and nonstructural projects that, upon completion, 35 will significantly reduce flood risks within the Sacramento and 36 San Joaquin Rivers drainage. 37 ((-) A description of the.facilities of the State Plan of Flood 38 Control for the Central Valley, including all of the following: 39 (1) The precise location and briefdesc•ription ofeach,facilitt; 40 a,description of the population and property, protected by the 98 SB 5 —6- 1 facility, the.system benefits provided by the facility, if any, and a- 2 brief history of the facilih; including the year of construction. 3 major improvements to the facility and any failures of the facili>;l. 4 (2) The design per,for•mance of each,facility. 5 (3) A description and evaluation of the performance of each 6 .facility, including the following: 7 (A) An evaluation of failure risks due to each of the following: 8 (i) Overtopping. 9 (ii) Urlder seepage. 10 (iii) Structural.failure. 11 (iv) Seismic events. 12 (v) Other- sources Of risk that the department or the board 13 determines are applicable. 14 (B) A description of any uncertainties regarding performance 15 capability, including uncertainties arising from the need .for" 16 additional engineering evaluations or uncertainties arising froln 17 changed conditions such as changes in estimated channel 18 capacities. 19 (d) A description of each existing darn that is not part of the 20 State Plan of Flood Control.for the Central Valley that provides 21 either significant Systemwide benefits for managing.flood )lS1iS 22 within the Sacramento and San Joaquin Rivers drainage orprotects 23 urban areas within the Sacramento and San Joaquin Rivers 24 drainage, including all of the following irlfornlation: 25 (1) The precise location and a brief description of each facility. 26 a description of the population and property protected by the 27 facility; and a brief history of the fac•rlrty; including the year Of 28 construction, major improvements to the facility; and any 29 uncontrolled releases of the facility. 30 (2) The standard project flood event upon which the flood 31 operation rules were based. 32 (3) A description of downstream conditions upon which the 33 flood operation rules were based, including estimated channel 34 capacities., level of urban development, and other conditions that 35 the department or the board determines to be relevant. 36 (4) A description of changes in downstream conditions since 37 theflood operation rules were established. 38 (e) A descrlptiOrl of each existing levee and other flood 39 management facility not desc•r•ibed in subdivision (d) that is not 40 part of the State Plan of Flood Control.for the Central Valley that 98 -7— SB 5 1 provides either signifrcantsystemwide benefits.formanagingflood 2 risks within the Sacramento and San Joaquin Rivers drainage or 3 protects urban areas within the Sacramento and Sar? Joaquin 4 Rivers drainage, including all of the following: 5 (1) The precise location and a brief descr iption of each facility; 6 a description of the population and property protected by the 7 facility, the system benefits provided by the facility, if any, and a 8 brief history of the facility, including the year of construction, 9 major-improvements to thefacilitt; and any.failures ofthe.facilityl. 10 (2) The design performance of each,facility 11 (3) A description and evaluation of the performance of each 12 facilih, including the following: 13 (4) An evaluation of failure risks due to each of the_following: 14 (i) Overtopping. 15 (ii) Under seepage. 16 (iii) Struc•tural.failarr•e. 17 (iv) Seismic events. 18 (v) Other sources of risk: that the department or the board 19 determines are applicable. 20 (B) A description of any uncertainties regarding performance 21 capability; including uncertainties arising from the need for 22 additional engineering evaluations or uncertainties arising from 23 changed conditions such as changes in estimated channel 24 capacities. 25 (J) A description of the probable impacts of projected climate 26 change., projected land use patterns, and other potential flood 27 management challenges on the ability of the system to provide 28 adequate levels offlood protection. 29 (g) Arr evaluation of both structural and nonstructural methods 30 for- improving systenrwide performance of the system. The 31 evaluation shall include a prioritized list of recommended actions 32 necessary to improve the performance of the system. 33 (lr) A evaluation of the structural improvements necessary to 34 bring each of the facilities of the State Plan of Flood Control.for- 35 the Central Valley to within its design standard 36 (1) The evaluation shall include a prioritized list of 37 recommended actions necessary to bring each facility not identified 38 in paragraph (2) to within its design standard. 39 (2) The evaluation shall include a list of facilities recommended 40 to be removed from the State Plan of Flood Control,for-the Central 98 SB 5 —8— 1 valley For each facility recommended for removal, the evaluation 2 shall identifv both of the following: 3 (A) The reasons for proposing the removal of the facility from 4 the State Plan of Flood Contr of for the Central Valley. 5 (B) Any additional recommended actions associated with 6 removing the facility fi-om the State Plan o_f Flood Control.for the 7 Central kalley. 8 (i) (1) An evaluation of both structural and nonstructural 9 methods for providing an urban level of flood protection to 10 currently urbanized areas. The evaluation shall include a 11 prioritized list of recommended actions to improve urban flood 12 protection. 13 (2) For purposes of this .subdivision, "urban level of flood 14 protection" means that level of'protection necessary to protect 15 against both of the follotiving: 16 (A) A flood," which means a hypothetical flood 17 representing 18 (B) A percent probability of flooding in any one year: 19 (j) An evaluation of both structzn•al acrd norrstr•zrctrn•al methods 20 for reducing flood risks in currently nonurbanized areas. The 21 evaluation shall include a prioritized list of recommended actions 22 to reduce these flood risks. 23 (k) An evaluation of both.structural and nonstructural methods 24 for improving public trust resources and beneficial uses of flood 25 water where these improvements also contribute to reducing. food 26 risks. 27 (l) The prioritization of recommended actions required under 28 this section shall be based on the,following criteria: 29 (1) The likelihood offailure by the levee orfacility. 30 (2) The current population protected by the levee or facility. 31 (3) The public safety infrastructure protected by the levee or- 32 facility. For purposes of this paragraph, "public safety 33 infrastructure" means the street and highway evacuation routes, 34 hospitals, and other public safet), infrastructure necessanr to 35 respond to a flood emergency. 36 (4) The willingness of local agencies to participate in 37 implementing the proposed action. 38 (m) Wherever feasible, the recommended actions in the plan 39 shall be designed to meet multiple objectives, including each of 40 the,following: 98 -9— SB 5 1 (1) Reducing the risk to human life, health, and safeo,fiom 2 flooding. 3 (2) Pr01770ting natural dynamic hydrologic and geomorphic 4 processes. 5 (3) Reducing damages from flooding. 6 (4) Increasing and improving the quantity; diversity, and 7 connectivity of riparian, wetland,flood plain, and shaded riverine 8 aquatic habitats, including agriculture and the ecological values 9 of these lands. 10 (5) Minimizing the flood management system operation and 11 maintenance requirements. 12 (6) Promoting the recovery and stability of native species 13 populations and overall biotic communih)diversity 14 (n) For the pair poses ofpreparing the plan, the department shall 15 collaborate ivith the United States Arrny Corps of Engineers and 16 the owners and operators of flood management.facilities. 17 8727.5. Upon adoption of the plan by the board, all of the 18 following apply: 19 (a) The facilities identified pursuant to subdivisions(d) and(e) 20 of Section 8 72 7 shall be deemed to be part of the system. 21 (b) The board shall take all actions necessary to remove 22 facilities identified pursuant to paragraph (2) of subdivision (h) 23 of Section 8 72 7 from the State Plan of Flood Control for the 24 Central Vallgi 25 (c) The department shall prepare, and the board shall adopt, a 26 schedule of implementation for- all of the recommended actions. 27 The schedule shall include a proposed frmding plan. 28 29 30 All matter omitted in this version of the bill 31 appears in the bill as introduced in Senate, 32 Dec. 4, 2006. (JR11) 33 O 98 PUBLIC WORKS DEPARTMENT CONTRA COSTA COUNTY DATE: .lalluary 1£. 2007 TO: Kt4ren Keene, CSAC FROM: , i lt( l Avalon, Deputy Public Works Director SUBJECT: COMMENTS ON SENATE BILL Senate Bill > generally pertains to flood mana�gment within the jurisdiction of the Reclamation Board. The State Plan of�Flood Control is referred throu�:111ot1t the leoislation. which is defined til Proposition l E as that area within the Sacramento and San.ioaquin watersheds. Sonic requirements in the legislation, however, do not specifically refer to the State Plan of Flood Control or are restricted to the Central Valley watersheds. I-orexample,Section 2.c.2.13 regllll-es cities and counties to notify property owners ofparcels protected by a flood facility and recommendingthey purchase flood HISLIranCC. I lllS SeClloll is 1101 SI)CCiflCallV Iillllted to tilt Cellll•al Vallev walersheCis. allhOtl`,h the entire le`,lslation seems to be \vrlttell Cor the Central Va11ey \\'tltel•Slied s. The leglslallon should be clarified in the he,inninu wilcther all ofit applies to the Central Valley watersheds or \whetller some sections apply to the entire state. h-lore specific cornmeilts arc the following: © Public Process: Section 2.a.1.13(.page 3. line 39)- ShuulJn't this SeC11011 a11SO be Subject to a public process similar to the SllbsegUellt sections of the Bill. O 500 Year Subventions: Section 2.a.i.E (page 4, line 23) - This section establishes a subveiltnoil for providing 500 year protection in urbanized areas. S110111d we be ilIVCStlll!, in providino 500 Fear protection before there is 100 year protection thrOLI('hoot the State. e Rural Subventions: Section 2.a.IT(page=4,line 30)—This section establishes a subvention program for protecting rural areas. Subvention funds should be used to provide flood protection for urbanized areas before using SUbveIltlon funds in rural non-urbanized areas. o Statewide Equity: If some sections of the Bill establish burdensome requirements statewide, then the sections limited to the Central Valley that are beneficial should also be applied stalewide. such as Sections 2.a.i.C' and D (pane 4. lines 7 and 14). G Reclamation Districts: Section 2.a.2.13 (page 1, IMC: 15)— Some Reclamation Districts ma\ not be able to Bind tilt pedoi mance standards for maintenance required by the State due to the limited number of property owners and value 01• the property beim protected by the iZeclanlntloll District. O Plan Review: Section 2.a.i.B (page 5. line 35) -- Requirin`, all land use entitlement environmental dOCtllllents to be reviewed by the Mate \vlll be all enormous task. 1 hlS C01.11d easily result in significant delays for development projects. This requirctllent should include a time limit for processino applications similar to the Permit Slrea111lining, Act. o Floodplains: Section 2.a.3.0 (page 5. line 39)-"phis section refers to "deep floodplains". This term Should be defined so it \will he clear where the new buildin , standards will he required. ® Annual Reporting: Section 2.b.LA (.page 6. lisle 10) - Does the annual reporting to DW'R pertain to facilities state\vide or just in the Sate [Mood C'01111-01 Plan area. %lost blood Control Districts already haVe all annual inspection Conducted hV the Army Corps of l rll'illeers. It is 1.111CI al'\Vhat thr State standards al'C and ifthey are the same Lis Arniv Corps standards. m Local Flood Ag2_5ency Review: Section 2.b.3.C.(page(i, line 34)-This section requires local flood agencies to review all land Use environmental documents Within areas protected by its facilities. This will be a burden on local flood control aL,encies. This section should include a provision that land use applicants should pay for the review by the flood agencies. ® 500 Year Protection: Section 2.c.LA (page 7. line 13) - This section requires 500 year protection. It is unclear whether this pertains to the Central Valley watersheds or to the entire state. It is also unclear whether this standard should be applied to deep floodplain areas or to till floodpfains including those With shallow flooding. For example. in many C011111111111tieS Ili OUr COMM with shallow flooding. protection of residential structures is provided by elevating the su-uCtut'e two feet or three feet above till:SUrr011lldimu _'round. 'I"his is done instead of' providing, extremely expensive flood protection improvements. This section �\ould exclude development in these shallo\\ flooding areas. C Subdivision Certification: Section 2.c.1.13 (page 7. line 16) - It is unclear What the term "certilicatiiln""111eai1S and\where in the subdivision al)IM-oval pl-oCCSs this WOUld occur. Does this require local a��.�ncies to dcnv an application l�lr auhdi\i�ion or dem the iilin��ilia Linal nlap:' Cul•rent la\\ requires local auencies to file the final slap il'all development conditions of"approval have been satisfied. G Parcel Identification and Notification: Section 2.c.2.A and 13(.page 7, lines 23 and 27)- This section requires flood agencies to identif},parcels protected by the State Plan of Flood Control Or"Other flood management facilities". This term needs to he defined. Some would sav a flood management facility is limited to a .facility that provides regional protection. Others \would say a flood management facility provides flood protection for any nel`iborhood illClUding pipes that are IS inches in diameter. Flood management facilities should be del fined as regional facilities that drain a certain sire watershed.otherwise we will be identifying and notlfyin�a every parcel in the State. Aside fi-om the degree ol�applicability. this is a huge burden on local govcrnment. Property owners told mort�oa�ge holders are alreadv Notified of flood insurance when property is purchased of a loan is Secured. so this notification regUire111ellt Seellls Unnecessary. Lastly, ll'tiliS is reClUired.thell to what standard will the notifiCatuln ncCd to meet, a 100 year flood. a 500 year flood. a 10 near flood'? 1iaa:\:1� 1; Adnun.11it h`,Lcci l;uiun`•t'nmminl>.ut 5e11;nc!Sill;LJOC M. Shia. PlltlllC Work S. Hoffnrul. CAO L_ Delaney. CAO D. Barry, CDD G.Connautihion. Hood Control CALIFORNIA LEGISLATURE-20o7—o8 REGULAR SESSION ASSEMBLY BILL No. 162 Introduced by Assembly Member Wolk January 22, 2007 An act to amend Sections 65302, 65303.4, 65352, and 65584.04 of, and to add Section 65302.7 to,the Government Code, relating to local planning. LEGISLATIVE COUNSEL'S DIGEST AB 162, as introduced, Wolk. Land use: water supply. (1) The Planning and Zoning Law requires a city or county general plan to include specified mandatory elements, including a land use element that designates the proposed general distribution and general location and extent of the uses of the land for various purposes and a conservation element that considers, among other things, the effect of development within the jurisdiction,as described in the land use element, on natural resources located on public lands, including military installations,and provides that the conservation element may also cover, among other things, flood control. The bill would require the land use element to identify and annually review those areas covered by the general plan that are subject to flooding as identified by floodplain mapping prepared by the Federal Emergency Management Agency or the Department of Water Resources and would require, upon the next revision of the housing element, on or after January 1, 2008, the conservation element of the general plan to identify rivers,creeks, streams,flood corridors,riparian habitat, and land that may accommodate floodwater for purposes of groundwater recharge and stormwater management.By imposing new duties on local public officials, the bill would create a state-mandated local program. 99 AB 162 —2— (2) The Planning and Zoning Law also requires that a city or county general plan contain a safety element for the protection of the community from any unreasonable risks associated with the effects of scismically induced surface rupture, ground shaking, ground failure, tsunami, seiche,and dam failure; slope instability leading to mudslides and landslides, subsidence, liquefaction, and other seismic, geologic, and fire hazards. This bill would also require, upon the next revision of the housing element, on or after January 1, 2008, the safety element to identify, among other things, information regarding flood hazards and establish a set of comprehensive goals,policies,and objectives,based on specified information for the protection of the community from, among other things, the unreasonable risks of flooding. The bill would also require the planning agency, upon each revision of the housing element to review, and if necessary, to identify new information that was not available during the previous revision of the safety element and would provide criteria by which cities and counties that have floodplain management ordinances may comply with these provisions. (3) The Planning and Zoning Law also requires,prior to the periodic review of its general plan and prior to preparing or revising its safety element, each city and county to consult with the Division of Mines and Geology of the Department of Conservation and the Office of Emergency Services, as specified, and requires that at specified times prior to adoption or amendment of the safety element, each city and county submit one copy of a draft or amendment of the safety element to specified state agencies and local governments for review pursuant to specified procedures. The bill would also require each city and county located within the boundaries of the Sacramento and San Joaquin Drainage District to submit the draft element or draft amendment to the safety element to the Reclamation Board and every local agency that provides flood protection to territory in the city or county at least 90 days prior to the adoption of, or amendment to, the safety element, of its general plan. The bill would also require the Reclamation Board and a local agency to review the draft or an existing safety element and report its written recommendations to the planning agency within 60 days of its receipt of the draft or existing safety element, as specified. (4) The Planning and Zoning Law requires, prior to action by a legislative body to adopt or substantially amend a general plan,that the 99 -3— AB 162 planning agency refer the proposed action to specified state, local, and federal agencies. The bill would also require that the proposed action be referred to the Reclamation Board when the proposed action is within the boundaries of the Sacramento and San Joaquin Drainage District. (5) The Planning and Zoning Law requires at least 2 years prior to a scheduled revision of a local government's housing element that each council of governments, or delegate subregion, as applicable, develop a proposed methodology for distributing the existing and projected regional housing need to cities,counties,and cities and counties within the region or within the subregion, where applicable, pursuant to specified provisions. That law requires that the methodology be consistent with specified objectives that include, among other things, a determination of the availability of land suitable for urban development or for conversion to residential use, the availability of underutilized land,and opportunities for infill development and increased residential densities. The bill would provide that the determination of available land suitable for urban development may exclude lands where the flood management infrastructure designed to protect the jurisdiction is not adequate to avoid the risk of flooding such that the development of housing would be impractical due to cost or other considerations. (6) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. The people of the State of California do enact as follows: I SECTION 1. Section 65302 of the Government Code is 2 amended to read: 3 65302. The general plan shall consist of a statement of 4 development policies and shall include a diagram or diagrams and 5 text setting forth objectives, principles, standards, and plan 6 proposals. The plan shall include the following elements: 7 (a) A land use element that designates the proposed general 8 distribution and general location and extent of the uses of the land 99 AB 162 —4- 1 4-1 for housing,business, industry, open space,including agriculture, 2 natural resources, recreation, and enjoyment of scenic beauty, 3 education, public buildings and grounds, solid and liquid waste 4 disposal facilities, and other categories of public and private uses 5 of land..The location and designation of'the extent of'the uses of 6 the land for public and private uses shall consider the identification 7 of land and natural resources pursuant to paragraph (3) of 8 subdivision (c). The land use element shall include a statement of 9 the standards of population density and building intensity 10 recommended for the various districts and other territory covered 11 by the plan. The land use element shall identify and annually 12 review those areas covered by the planes that are subject to 13 floodingand shall be reviewed ttmtially with respeet to those 14 iden0ed by floodplain mapping prepared by the Federal 15 Emergency Management AgenC11 (FEMA) or the Department of 16 Water-Resources. The land use element shall also do both of the 17 following: 18 (1) Designate in a land use category that provides for timber 19 production those parcels of real property zoned for timberland 20 production pursuant to the California Timberland Productivity Act 21 of 1982, Chapter 6.7 (commencing with Section 51100) of Part 1 22 of Division 1 of Title 5. 23 (2) Consider the impact of new growth on military readiness 24 activities carried out on military bases, installations,and operating 25 and training areas, when proposing zoning ordinances or 26 designating land uses covered by the general plan for land,or other 27 territory adjacent to military facilities, or underlying designated 28 military aviation routes and airspace. 29 (A) In determining the impact of new growth on military 30 readiness activities, information provided by military facilities 31 shall be considered. Cities and counties shall address military 32 impacts based on information from the military and other sources. 33 (B) The following definitions govern this paragraph: 34 (i) "Military readiness activities" mean all of the following: 35 (1) Training, support, and operations that prepare the men and 36 women of the military for combat. 37 (11) Operation, maintenance, and security of any military 38 installation. 39 (111) Testing of military equipment, vehicles, weapons, and 40 sensors for proper operation or suitability for combat use. 99 -5— AB 162 1 (ii) "Military installation" means a base, camp, post, station, 2 yard,center,homeport facility for any ship,or other activity under 3 the jurisdiction of the United States Department of Defense as 4 defined in paragraph(1)of subsection(e)of Section 2687 of Title 5 10 of the United States Code. 6 (b) A circulation element consisting of the general location and 7 extent of existing and proposed major thoroughfares,transportation 8 routes, terminals, any military airports and ports, and other local 9 public utilities and facilities, all correlated with the land use 10 element of the plan. 11 (c) A housing element as provided in Article 10.6(commencing 12 with Section 65580). 13 (d) (1) A conservation element for the conservation, 14 development, and utilization of natural resources including water 15 and its hydraulic force, forests, soils, rivers and other waters, 16 harbors, fisheries, wildlife, minerals, and other natural resources. 17 The conservation element shall consider the effect of development 18 within the jurisdiction, as described in the land use element, on 19 natural resources located on public lands, including military 20 installations. That portion of the conservation element including 21 waters shall be developed in coordination with any countywide 22 water agency and with all district and city agencies, includingflood 23 management, water conservation, or groundwater agencies that 24 have developed, served, controlled, managed, or conserved water 25 of any type for any purposed in the county or city for which the 26 plan is prepared. Coordination shall include the discussion and 27 evaluation of any water supply and demand information described 28 in Section 65352.5, if that information has been submitted by the 29 water agency to the city or county. 30 also eover the following: 31 (2) The conservation element may also cover all of the,following: 32 (�j 33 (A) The reclamation of land and waters. 34 (4) 35 (B) Prevention and control of the pollution of streams and other 36 waters. 37 (-,) 38 (C) Regulation of the use of land in stream channels and other 39 areas required for the accomplishment of the conservation plan. 40 f4) 99 AB 162 —6- 1 6-1 (D) Prevention, control, and correction of the erosion of soils, 2 beaches, and shores. 3 (-5) 4 (E) Protection of watersheds. 5 (-6) 6 . (F) The location, quantity and quality of the rock, sand and 7 gravel resources. 8 . 9 (3) Upon the next revision of the housing element on or after 10 January 1, 2008, the conservation element shall identify rivers, 11 creeks, streams,flood corridors, riparian habitats, and land that 12 may accommodate floodwater for purposes of groundivater 13 recharge and stormwater management. 14 (e) An open-space element as provided in Article 10.5 15 (commencing with Section 65560). 16 (f) (1)A noise element which shall identify and appraise noise 17 problems in the community.The noise element shall recognize the 18 guidelines established by the Office of Noise Control in the State 19 Department of Health Care Services and shall analyze and quantify, 20 to the extent practicable, as determined by the legislative body, 21 current and projected noise levels for all of the following sources: 22 f+) 23 (A) Highways and freeways. 24 (2) 25 (B) Primary arterials and major local streets. 26 (� 27 (C) Passenger and freight on-line railroad operations and ground 28 rapid transit systems. 29 (4) 30 (D) Commercial,general aviation,heliport,helistop,and military 31 airport operations, aircraft overflights,jet engine test stands, and 32 all other ground facilities and maintenance functions related to 33 airport operation. 34 (-5) 35 (E) Local industrial plants,including,but not limited to,railroad 36 classification yards. 37 (,6) 38 (F) Other ground stationary noise sources, including, but not 39 limited to, military installations, identified by local agencies as 40 contributing to the community noise environment. 99 -7— AB 162 ] e 2 (2) Noise contours shall be shown for all of these sources and 3 stated in terms of community noise equivalent level (CNEL) or 4 day-night average level (Ldp).The noise contours shall be.prepared 5 on the basis of noise monitoring or following generally accepted 6 noise modeling techniques for the various sources identified in 7 paragraphs (1)to (6), inclusive. 8 Tore 9 (3) The noise contours shall be used as a guide for establishing 10 a pattern of land uses in the land use element that minimizes the 11 exposure of community residents to excessive noise. 12 The 13 (4) The noise element shall include implementation measures 14 and possible solutions that address existing and foreseeable noise 15 problems, if any. The adopted noise clement shall serve as a 16 guideline for compliance with the state's noise insulation standards. 17 (g) (1) A safety element for the protection of the community 18 from any unreasonable risks associated with the effects of 19 seismically induced surface rupture, ground shaking, ground 20 failure,tsunami, seiche, and dam failure; slope instability leading 21 to mudslides and landslides; subsidence, liquefaction and other 22 seismic hazards identified pursuant to Chapter 7.8 (commencing 23 with Section 2690) of Division 2 of the Public Resources Code, 24 and other geologic hazards known to the legislative body;flooding; 25 and wild land and urban fires. The safety element shall include 26 mapping of known seismic and other geologic hazards. It shall 27 also address evacuation routes, military installations, peakload 28 water supply requirements, and minimum road widths and 29 clearances around structures,as those items relate to identified fire 30 and geologic hazards. 31 (2) The safety element, upon the next revision of the housing 32 element on or after January 1, 2008, shall also do the following: 33 (A) Identify information regarding flood hazards, including, 34 but not limited to, the following: 35 (i) Flood hazard zones. As used in this subdiv7ision, `flood 36 hazard zone"means an area subject to flooding that is delineated 37 as either a special hazard area or an area of moderate or minimal 38 hazard on an official flood insurance rate map issued by the 39 Federal Emergerncy Management Agency The identification of a 40 flood hazard zone does not imply that areas outside the flood 99 AB 162 —8- 1 hazard zones or uses permitted within flood hazard zones i'vill be 2 free from flooding or flood damage. 3 (ii) National Flood Insurance Program maps published by 4 FEMA. 5 (iii) Information about. food hazards that is available from the 6 United States Army Corp of Engineers. 7 (iv) Designated.loodvay maps that are available ffi"om the 8 Reclamation Board 9 (v) Dam.failure inundation maps prepared pursuant to Section 10 8589.5 that are available from the Office of Emergency Services. 11 (iii) Awareness Floodplain Mapping Program maps that are 12 available fr om the Department of'Water Resources. 13 (vii) Areas subject to inundation in the event of the failure of 14 levees orfloodwalls. 15 (viii) Historical data on flooding, including locally prepared 16 maps of areas that are subject to flooding, areas that are 17 vulnerable to flooding after- wildfires, and sites that have been 18 repeatedly damaged by flooding. 19 (ix) Existing and planned development in flood hazard zones, 20 including structures, roads, utilities, and essential public,facilities. 21 (a) Local, state, and,federal agencies with responsibility,for 22 flood protection, including special districts and local offices of 23 emergency services. 24 (B) Establish a set of comprehensive goals, policies, and 25 objectives based on the information identified pursuant to 26 subparagraph (A),for- the protection of the community from the 27 unreasonable risks of flooding, including, but not limited to: 28 (i) Avoiding or minimizing the risks of flooding to new 29 development. 30 (ii) Evaluating whether new,development should be located in 31 flood hazard zones, and identif ging construction methods or other 32 methods to minimize damage if new development is located in 33 flood hazard zones. 34 (iii) Maintaining the structural and operational integrity of. 35 essential public,facilities duringflooding. 36 (A) Locating, when feasible, new, essential public facilities 37 outside of flood hazard zones, including hospitals and health care 38 facilities, emergency shelters,fire stations, emergency command 39 centers, and emergency communications facilities or idento,ing 99 -9— AB 162 1 construction methods or other methods to minin7ize damage if 2 these.facilities are located in flood hazard Tones. 3 (v) Establishing cooperative working relationships anrongpublic 4 agencies with r-esporrsibilit),.for•floodprotection. 5 (C) Establish a set of feasible implementation measures designed 6 to(--art),out the goals,policies, and objectives establishedpursuant 7 to subparagraph (B). 8 (3) After the initial revision of the .safety element pursuant to 9 paragraph (2), upon each revision of the housing element, the 10 planning agency shall review and, if necessary; revise the safety I 1 element to identify new information that was not available during 12 the previous revision of the safety element. 13 (4) Cities and counties that have floodplain management 14 ordinances that have been approved by FEM4 that substantially 15 comply .with this section, or have substantially equivalent 16 provisions to this subdivision in their general plans, may use that 17 information in the safeh,element to comply with this subdivision, 18 and shall summarize and incorporate by r cference into the safety 19 element the other- general plan provisions or the flood plain 20 ordinance, specifically showing how each requirement of this 21 subdivision has been met. 22 f+ 23 (5) Prior to the periodic review of its general plan and prior to 24 preparing or revising its safety element,each city and county shall 25 consult the California Geological Survey of the Department of 26 Conservation, the Reclamation Board, if the city or county is 27 located within the boundaries of the Sacramento and San Joaquin 28 Drainage District, as set.forth in Section 8501 of the water-Code, 29 and the Office of Emergency Services for the purpose of including 30 information known by and available to the departmentke, 31 the office, and the board required by this subdivision. 32 {?j 33 (0) To the extent that a county's safety element is sufficiently 34 detailed and contains appropriate policies and programs for 35 adoption by a city, a city may adopt that portion of the county's 36 safety element that pertains to the city's planning arca in 37 satisfaction of the requirement imposed by this subdivision. 38 SEC. 2. Section 65302.7 is added to the Government Code, to 39 read: 99 AB 162 —10- 1 10-1 65302.7. (a) For the purposes of complying with Section 2 65302.5, each county or city located within the boundaries of the 3 Sacramento and San Joaquin Drainage District, as set forth in 4 Section 8501 of the Water Code, shall submit the draft element 5 of, or draft amendment to, the safety element to the Reclamation 6 Board and to every local agency that provides flood protection to 7 territory in the city or county at least 90 days prior to the adoption 8 of, or amendment to, the safety element of its general plan. 9 (b) The Reclamation Board and each local agency described in 10 paragraph (1) shall review the draft or an existing safety element 11 and report their respective written recommendations to the planning 12 agency within 60 days of the receipt of the draft or existing safety 13 element. The Reclamation Board and each local agency shall 14 review the draft or existing safety element and may offer written 15 recommendations for changes to the draft or existing safety element 16 regarding both of the following: 17 (1) Uses of land and policies in areas subjected to flooding that 18 will protect life,property,and natural resources from unreasonable 19 risks associated with flooding. 20 (2) Methods and strategies for flood risk reduction and 21 protection within areas subjected to flooding. 22 (c) Prior to the adoption of its draft element or draft amendments 23 to the safety element,the board of supervisors of the county or the 24 city council of a city shall consider the recommendations made by 25 the Reclamation Board and any local agency that provides flood 26 protection to territory in the city or county. If the board of 27 supervisors or the city council determines not to accept all or some 28 of the recommendations, if any, made by the Reclamation Board 29 or the local agency, the board of supervisors or the city council 30 shall make findings that state its reasons for not accepting a 31 recommendation and shall communicate those findings in writing 32 to the Reclamation Board or to the local agency. 33 (d) If the Reclamation Board's or the local agency's 34 recommendations are not available within the time limits required 35 by this section, the board of supervisors or the city council may 36 act without those recommendations. The board of supervisors or 37 city council shall consider the recommendations at the next time 38 it considers amendments to its safety element. 39 SEC. 3. Section 65303.4 of the Government Code is amended 40 to read: 99 -11 — AB 162 1 65303.4. The Department of Water Resources or the 2 Reclamation Board, as appropriate, and the Department of Fish 3 and Game may develop site design and planning policies to assist 4 local agencies which request help in implementing the general 5 plan guidelines for meeting flood control objectives and other land 6 management needs. 7 SEC. 4. Section 65352 of the Government Code is amended 8 to read: 9 65352. (a) Prior to action by a legislative body to adopt or 10 substantially amend a general plan,the planning agency shall refer 11 the proposed action to all of the following entities: 12 (1) A city or county,within or abutting the area covered by the 13 proposal,and any special district that may be significantly affected 14 by the proposed action, as determined by the planning agency. 15 (2) An elementary,high school,or unified school district within 16 the area covered by the proposed action. 17 (3) The local agency formation commission. 18 (4) An areawide planning agency whose operations may be 19 significantly affected by the proposed action,as determined by the 20 planning agency. 21 (5) A federal agency if its operations or lands within its 22 jurisdiction may be significantly affected by the proposed action, 23 as determined by the planning agency. 24 (6) (A) The branches of the United States Armed Forces that 25 have provided the Office of Planning and Research with a 26 California mailing address pursuant to subdivision(d) of Section 27 65944 when the proposed action is within 1,000 feet of a military 28 installation, or lies within special use airspace, or beneath a 29 low-level flight path, as defined in Section 21098 of the Public 30 Resources Code, provided that the United States Department of 31 Defense provides electronic.maps of low-level flight paths,special 32 use airspace, and military installations at a scale and in an 33 electronic format that is acceptable to the Office of Planning and 34 Research. 35 (B) Within 30 days of a determination by the Office of Planning 36 and Research that the information provided by the Department of • 37 Defense is sufficient and in an acceptable scale and format, the 38 office shall notify cities, counties, and cities and counties of the 39 availability of the information on the Internet.Cities,counties,and 99 AB 162 —12- 1 cities and counties shall comply with subparagraph(A)within 30 2 days of receiving this notice from the office. 3 (7) A public water system, as defined in Section 116275 of the 4 Health and Safety Code,with 3,000 or more service connections, 5 that serves water to customers within the area covered by the 6 proposal. The public water system shall have at least 45 days to 7 comment on the proposed plan, in accordance with subdivision 8 (b), and to provide the planning agency with the information set 9 forth in Section 65352.5. 10 (8) The Bay Area Air Quality Management District for a 11 proposed action within the boundaries of the district. 12 (9) On and after March 1, 2005, a California Native American 13 tribe,that is on the contact list maintained by the Native American 14 Heritage Commission, with traditional lands located within the 15 city or county's jurisdiction. 16 (10) The Reclamation Board.for a proposed action within the 17 boundaries of the Sacrainento and San Joaquin Drainage District, 18 as.set ford? in Section 8501 of the Water Code. 19 (b) Each entity receiving a proposed general plan or amendment 20 of a general plan pursuant to this section shall have 45 days from 21 the date the referring agency mails it or delivers it in which to 22 comment unless a longer period is specified by the planning 23 agency. 24 (c) (1) This section is directory,not mandatory, and the failure 25 to refer a proposed action to the other entities specified in this 26 section does not affect the validity of the action, if adopted. 27 (2) To the extent that the requirements of this section conflict 28 with the requirements of Chapter 4.4 (commencing with Section 29 65919), the requirements of Chapter 4.4 shall prevail. 30 SEC.5. Section 65584.04 of the Government Code is amended 31 to read: 32 65584.04. (a) At least two years prior to a scheduled revision 33 required by Section 65588, each council of governments, or 34 delegate subregion as applicable, shall develop a proposed 35 methodology for distributing the existing and projected regional 36 housing need to cities,counties,and cities and counties within the 37 region or within the subregion, where applicable pursuant to this 38 section. The methodology shall be consistent with the objectives 39 listed in subdivision(d) of Section 65584. 99 -13— AB 162 1 (b) (1) No more than six months prior to the development of a 2 proposed methodology for distributing the existing and projected 3 housing need, each council of governments shall survey each of 4 its member jurisdictions to request, at a minimum, information 5 regarding the factors listed in subdivision (d) that will allow the 6 development of a methodology based upon the factors established 7 in subdivision (d). 8 (2) The council of governments shall seek to obtain the 9 information in a manner and format that is comparable throughout 10 the region and utilize readily available data to the extent possible. 11 (3) The information provided by a local government pursuant 12 to this section shall be used, to the extent possible,by the council 13 of governments, or delegate subregion as applicable, as source 14 information for the methodology developed pursuant to this section. 15 The survey shall state that none of the information received may 16 be used as a basis for reducing the total housing need established 17 for the region pursuant to Section 65584.01. 18 (4) If the council of governments fails to conduct a survey 19 pursuant to this subdivision,a city,county,or city and county may 20 submit information related to the items listed in subdivision (d) 21 prior to the public comment period provided for in subdivision 22 (c). 23 (c) Public participation and access shall be required in the 24 development of the methodology and in the process of drafting 25 and adoption of the allocation of the regional housing needs. 26 Participation by organizations other than local jurisdictions and 27 councils of governments shall be solicited in a diligent effort to 28 achieve public participation of all economic segments of the 29 community. The proposed methodology, along with any relevant 30 underlying data and assumptions, and an explanation of how 31 information about local government conditions gathered pursuant 32 to subdivision (b) has been used to develop the proposed 33 methodology,and how each of the factors listed in subdivision(d) 34 is incorporated into the methodology, shall be distributed to all 35 cities, counties, any subregions, and members of the public who 36 have made a written request for the proposed methodology. The 37 council of governments,or delegate subregion,as applicable,shall 38 conduct at least one public hearing to receive oral and written 39 comments on the proposed methodology. 99 AB 162 —14- 1 14-1 (d) To the extent that sufficient data is available from local 2 governments pursuant to subdivision (b) or other sources, each 3 council of governments,or delegate subregion as applicable,shall 4 include the following factors to develop the methodology that 5 allocates regional housing needs: 6 (1) Each mcmber jurisdiction's existing and projected jobs and 7 housing relationship. 8 (2) The opportunities and constraints to development of 9 additional housing in each member jurisdiction, including all of 10 the following: 11 (A) Lack of capacity for sewer or water service due to federal 12 or state laws, regulations or regulatory actions, or supply and 13 distribution decisions made by a sewer or water service provider 14 other than the local jurisdiction that preclude the jurisdiction from 15 providing necessary infrastructure for additional development 16 during the planning period. 17 (B) The availability of land suitable for urban development or 18 for conversion to residential use, the availability of underutilizcd 19 land, and opportunities for infill development and increased 20 residential densities. The council of governments may not limit 21 its consideration of suitable housing sites or land suitable for urban 22 development to existing zoning ordinances and land use restrictions 23 of a locality, but shall consider the potential for increased 24 residential development under alternative zoning ordinances and 25 land use restrictions. The determination of available land suitable 26 for urban development may exclude lands where the flood 27 management infrastructure designed to protect that land is not 28 adequate to avoid the risk of flooding such that the development 29 of housing on that land would be infeasible because of cost or- 30 other- considerations. Information fr-orn the Reclamation Board, 31 the Army Corps of Engineers, or other sources may be used to 32 support determinations made pursuant to this subparagraph. 33 (C) Lands preserved or protected from urban development under 34 existing federal or state programs, or both, designed to protect 35 open space,farmland,environmental habitats,and natural resources 36 on a long-term basis. 37 (D) County policies to preserve prime agricultural land, as 38 defined pursuant to Section 56064,within an unincorporated area. 39 (3) The distribution of household growth assumed for purposes 40 of a comparable period of regional transportation plans and 99 -15— AB 162 1 opportunities to maximize the use of public transportation and 2 existing transportation infrastructure. 3 (4) The market demand for housing. 4 (5) Agreements between a county and cities in a county to direct 5 growth toward incorporated areas of the county. 6 (6) The loss of units contained in assisted housing developments, 7 as defined in paragraph (8) of subdivision (a) of Section 65583, 8 that changed to non-low-income use through mortgage prepayment, 9 subsidy contract expirations, or termination of use restrictions. 10 (7) High-housing costs burdens. 11 (8) The housing needs of farmworkers. 12 (9) The housing needs generated by the presence of a private 13 university or a campus of the California State University or the 14 University of California within any member jurisdiction. 15 (10) Any other factors adopted by the council of governments. 16 (e) The council of governments, or delegate subregion, as 17 applicable, shall explain in writing how each of the factors 18 described in subdivision(d)was incorporated into the methodology 19 and how the methodology is consistent with subdivision (d) of 20 Section 65584.The methodology may include numerical weighting. 21 (f) Any ordinance,policy,voter-approved measure,or standard 22 of a city or county that directly or indirectly limits the number of 23 residential building permits issued by a city or county shall not be 24 a justification for a determination or a reduction in the share of a 25 city or county of the regional housing need. 26 (g) In addition to the factors identified pursuant to subdivision 27 (d), the council of governments, or delegate subregion, as 28 applicable, shall identify any existing local, regional, or state 29 incentives, such as a priority for funding or other incentives 30 available to those local governments that are willing to accept a 31 higher share than proposed in the draft allocation to those local 32 governments by the council of governments or delegate subregion 33 pursuant to Section 65584.05. 34 (h) Following the conclusion of the 60-day public comment 35 period described in subdivision (c) on the proposed allocation 36 methodology, and after making any revisions deemed appropriate 37 by the council of governments,or delegate subregion,as applicable, 38 as a result of comments received during the public comment period, 39 each council of governments,or delegate subregion,as applicable, 40 shall adopt a final regional,or subregional,housing need allocation 99 AB 162 —16— I 16-1 methodology and provide notice of the adaption of the 2 methodology to the jurisdictions within the region, or delegate 3 subregion as applicable, and to the department. 4 SEC. 6. No reimbursement is required by this act pursuant to 5 Section 6 of Article XIIIB of the California Constitution because 6 a local agency or school district has the authority to levy service 7 charges, fees, or assessments sufficient to pay for the program or 8 level of service mandated by this act,within the meaning of Section 9 17556 of the Government Code. O 99