Staying Dry in Wet Times: What City Officials Need to Know About New Flood Control Requirements for General Plan Updates
Hurricane Katrina's devastation to the Gulf Coast drove home the economic, environmental and human costs of catastrophic flooding. For California, the frightening reality is that New Orleans had a higher level of flood protection than most Central Valley cities.
In fall 2007, Governor Schwarzenegger signed a package of six bills that mandate comprehensive planning for flood protection at the state and local levels. While these bills focus largely on the Central Valley, some requirements apply to cities and counties statewide. City officials should familiarize themselves with these new requirements, which directly impact the municipal General Plan.
New Rules for Cities and Counties: The Flood Bills
The six bills, in order of signing, are:
SB 5 (Machado) enacts the Central Valley Flood Protection Act of 2008. It requires the state Department of Water Resources (DWR) and the Central Valley Flood Protection Board (previously known as the State Reclamation Board) to prepare and adopt a Central Valley Flood Protection Plan by 2012. SB 5 establishes 200-year protection as the minimum urban level of flood protection and sets deadlines for cities and counties in the Central Valley to amend their General Plans and zoning ordinances to conform to the Central Valley Flood Protection Plan within 24 months and 36 months, respectively, of its adoption. It restricts approval of development agreements and subdivision maps in flood hazard zones after the enactment of General Plan and zoning ordinance amendments, unless certain findings are made. SB 5 obligates Central Valley counties to develop flood emergency plans within 24 months of adoption of the Central Valley Flood Protection Plan. Its legislative intent is also found in AB 5 and AB 156.
SB 17 (Florez) sets compensation for the members of the Central Valley Flood Protection Board and establishes the board's duties. SB 17's provisions were also enacted by AB 5.
AB 5 (Wolk) establishes the Central Valley Flood Protection Board and its duties. It sets requirements and deadlines for DWR and the board to prepare reports on the flood control system, including levee flood zone protection maps to be prepared by DWR. AB 156 also enacts these same requirements.
AB 70 (Jones) provides that cities and counties will share liability with the state in the case of litigation over unreasonably approved new development on agricul tural lands. This would not apply in cases where the city or county has amended its General Plan and zoning and otherwise makes land use decisions consistent with the Central Valley Flood Protection Plan. "Unreasonably approving" is defined as approval without appropriate consider ation of the known significant risks
AB 156 (Laird) requires DWR and the Central Valley Flood Protection Board to adopt a schedule for mapping flood risk areas within the Central Valley. AB 156 sets requirements for DWR and the board to prepare reports on the flood control system, including levee flood zone protection maps to be prepared by DWR by Dec. 31, 2008. DWR must provide yearly notices to owners of property within a levee pro tection zone, beginning Sept . 1 , 2010. AB 5 also enacts these requirements.
AB 162 (Wolk) requires cities and counties to amend the land use, conservation, safety and housing elements of their General Plans to address flood-related matters. These amendments must be made by the next revision of the housing element scheduled after Jan. 1, 2009.
California planning law requires city and county General Plans to identify flood-prone areas and limit development within those areas. The 2007 flood bills revised the requirements for the land use, con servation and safety elements of city and county General Plans statewide. However, Central Valley jurisdictions will be subject to additional scrutiny to ensure that their General Plans conform to the Central Valley Flood Control Plan and will have additional restrictions on development approvals tied to flood hazards. Because DWR is concentrating its mapping work in the Central Valley, cities and counties in that region will also have the most up-to-date flood hazard information to integrate into their General Plans.
While these new statutes mandate extensive planning analysis, they are tempered by Government Code sections 65300.7 and 65300.9, which allow cities and counties to implement the General Plan requirements in ways that recognize "local conditions and circumstances." Keep in mind that these mandated revisions to city and county General Plans must comply with Government Code section 65300.5, which requires the General Plan and its elements to be internally consistent.
New flood hazard information will be important to the jurisdiction's California Environmental Quality Act analysis as well. Under the "fair argument" standard, an environmental impact report (EIR) must be prepared whenever it can be fairly argued on the basis of factual evidence that a project may have a significant effect. The new flood maps and data can provide that sort of evidence.
As a result of knowing more about flood risks, more EIRs may be necessary. Consequently, initial studies and EIRs will be expected to include the latest information available from DWR and other sources and to recommend feasible mitigation measures where possible. While a Central Valley city or county may still approve at-risk developments with a "statement of overriding considerations," this will not avoid the potential for shared liability should litigation occur against the state over flood damages related to failure of a state flood-control facility.