Unless a city or county within the Sacramento-San Joaquin Valley makes certain findings after the effective date of specified amendments to its general plan, the Planning and Zoning Law prohibits a city or county from entering into a development agreement for property located in a flood hazard zone; approving a discretionary permit, ministerial permit, or other discretionary entitlement for a project that is located within a flood hazard zone, as specified; or approving a tentative map, or a parcel map for which a tentative map was not required, for a subdivision that is located within a flood hazard zone. Those findings include, among others, that the local flood management agency has made adequate progress on the construction of a flood protection system that will result in flood protection equal to or greater than the urban level of flood protection in urban or urbanizing areas. Existing law further requires urban and urbanizing areas protected by any levee that is part of the facilities of the State Plan of Flood Control to achieve the urban level of flood protection by 2025. Existing law extends that deadline to 2030 for the City of West Sacramento.

This bill would extend that deadline for achieving the urban level of flood protection for the City of Sacramento to 2030. The bill would also make a related change regarding the potential liability of the Sacramento Area Flood Control Agency for property damage caused by a flood during that extended time period. The bill would require, on or before December 31, 2029, the Sacramento Area Flood Control Agency to provide a report to specified committees and subcommittees of the Legislature describing plans and actions taken to improve flood protection in the preceding 5 years in the City of Sacramento, as provided.

This bill would make legislative findings and declarations as to the necessity of a special statute for the City of Sacramento.

Unless a city or county within the Sacramento-San Joaquin Valley makes certain findings after the effective date of specified amendments to its general plan, the Planning and Zoning Law prohibits a city or county from entering into a development agreement for property located in a flood hazard zone; approving a discretionary permit, ministerial permit, or other discretionary entitlement for a project that is located within a flood hazard zone, as specified; or approving a tentative map, or a parcel map for which a tentative map was not required, for a subdivision that is located within a flood hazard zone. Those findings include, among others, that the local flood management agency has made adequate progress on the construction of a flood protection system that will result in flood protection equal to or greater than the urban level of flood protection in urban or urbanizing areas. Existing law further requires urban and urbanizing areas protected by any levee that is part of the facilities of the State Plan of Flood Control to achieve the urban level of flood protection by 2025. Existing law extends that deadline to 2030 for the City of West Sacramento.

This bill would extend that deadline for achieving the urban level of flood protection for the City of Sacramento to 2030. The bill would also make a related change regarding the potential liability of the Sacramento Area Flood Control Agency for property damage caused by a flood during that extended time period.

This bill would make legislative findings and declarations as to the necessity of a special statute for the City of Sacramento.

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Dave Min, Chair

2023 - 2024 Regular

Bill No: SB 1139 Hearing Date: April 9, 2024

Subject: Flood protection: City of Sacramento: Sacramento Area Flood Control Agency

SUMMARY

This bill would extend the deadline for the City of Sacramento to meet the urban level of flood protection to 2030, and provide that the Sacramento Area Flood Control Agency may be required to contribute its fair and reasonable share of any flood-caused property damage to any new development, as provided.

BACKGROUND AND EXISTING LAW

1. In 2007, the Legislature passed and then-Governor Schwarzenegger signed a comprehensive package of flood bills – SB 5 (Machado), SB 17 (Florez), AB 5 (Wolk), AB 70 (Jones), AB 156 (Laird), and AB 162 (Wolk)^[1].
2. The over-arching concept underpinning these flood bills was to:

1^st Stop putting people in harm’s way.

2^nd Determine where the greatest risk of harm is.

3^rd Develop and implement plans to reduce that risk.

1. Among other things, SB 5 defined the urban level of flood protection to be “the level of protection that is necessary to withstand flooding that has a 1-in-200 chance of occurring in any given year …” (Government Code (GOV) §65007). This is sometimes referred to as a 200-year level of protection. SB 5 also set the national Federal Emergency Management Act flood protection standard of 100-year protection as the objective for nonurbanized areas.
2. Further, SB 5 prohibited a city or county within the Sacramento-San Joaquin Valley from entering into a development agreement for property within a flood hazard zone unless the city or county finds one of the following: (GOV §65865.5)

• The facilities of the property are protected to the appropriate level of flood protection in urban and nonurbanized areas.
• The city or county has imposed conditions on the development agreement that will protect the property to the appropriate level of flood protection in urban and nonurbanized areas.
• The local flood management agency has made “adequate progress” on the construction of a flood protection system that will result in the appropriate level of flood protection in urban and nonurbanized areas. For urban and urbanizing areas protected by project levees^[2], the urban level of flood protection shall be achieved by 2025.
• The property is in an undetermined risk area and has met the urban level of flood protection based on substantial evidence^[3].

1. SB 5 further defined “adequate progress” to mean all of the following: (GOV §65007)

• The total project scope, schedule, and cost of the completed flood protection system have been developed to meet the appropriate standard of protection.
• Revenues that are sufficient to fund each year of the project schedule have been identified and, in any given year and consistent with that schedule, at least 90 percent of the revenues scheduled to be received by that year have been appropriated and are currently being expended. (There is an exception where state funding was not appropriated consistent with a funding agreement between a state agency and a local flood management agency.)
• Critical features of the flood protection system are under construction, and each critical feature is progressing as indicated by the actual expenditure of the construction budget funds.
• The city or county has not been responsible for a significant delay in the completion of the system.
• The local flood management agency provides the Department of Water Resources (DWR) and the Central Valley Flood Protection Board (CVFPB) with required specified information sufficient to determine substantial completion of the required flood protection.

1. SB 5 defined the Sacramento-San Joaquin Valley as the area subject to flooding by the Sacramento or San Joaquin Rivers or their tributaries, not including Tulare Lake basin or the Kings River (GOV §65007).
2. Similarly, cities and counties within the Sacramento-San Joaquin Valley are prohibited from approving a discretionary permit or other discretionary entitlement that would result in the construction of a new building or construction that would result in an increase in allowed occupancy of an existing building, or a ministerial permit that would result in the construction of a new residence for projects located within a flood hazard zone and are required to deny a tentative map or parcel map for a subdivision located within a flood hazard zone unless certain findings are made, including that the local flood management agency has made adequate progress on the construction of a flood protection system (GOV §§65962, 66474.5).
3. The 2007 flood bill package were in response to the Paterno decision (Paterno v. State of California (2003) 114 Cal.App.4th 308). In Paterno, the court determined that the State of California can be liable for failure of levees if the state fails to have a “reasonable plan” for operating and maintaining the levees in the Sacramento and San Joaquin Valleys. The court reasoned that the levees were a public improvement, thus placing liability on the state for any damage that resulted from the improvement, including potential levee failure.
4. SB 5’s prohibition against new development or increased occupancy in flood hazard zones without the urban level of flood protection, unless the development met one of four categories, appears to be the Legislature’s response to the court’s “responsible plan” ruling.
5. The 2007 flood package also included provisions to ensure that local agencies shared in the liability should development decisions made at the local level result in future flood damages. While the state, generally, assumes liability for flood damages, Water Code §8307 authorizes the state to impose liability on local agencies in the event a local agency unreasonably approved a new development project in a Central Valley floodplain “without appropriately considering significant risks of flooding made known to the approving agency as of the time of approval and without taking reasonable and feasible action to mitigate the potential property damage to the new development resulting from a flood.” However, if the development falls into one of the four categories that would permit development, the locals are not required to contribute and the state is solely responsible.
6. As the 2025 urban level of flood protection deadline loomed, legislation provided extensions to specific areas within the Sacramento-San Joaquin Valley. These include the Mossdale Tract (AB 838 (Eggman, Chapter 208, Statutes of 2020) and the City of West Sacramento (SB 901 (Pan, Chapter 708, Statutes of 2022) that must meet relevant flood protection standards by 2028, and 2030, respectively. SB 586 (Eggman, 2023), currently on the Assembly floor, seeks to further extend those deadlines. These bills included language that provided that the relevant local flood control agency might be required to contribute its “fair and reasonable” share of any property damage caused by a flood to the extent the state’s exposure to liability had been increased due to the approval of new development (see GOV §65962.1c, §65962.2c).

PROPOSED LAW

This bill would extend the deadline for the City of Sacramento to meet the urban level of flood protection to 2030, and provide that the Sacramento Area Flood Control Agency may be required to contribute is fair and reasonable share of any flood-caused property damage to any new development, as provided.

Specifically, this bill would:

1. Extend the deadline for the City of Sacramento, as defined, to meet the urban level of flood protection to 2030.
2. Require that the Sacramento Area Flood Control Agency may be required to contribute its fair and reasonable share of any property damage caused by a flood to the extent that the state’s exposure to liability has been increased by the unreasonable approval of new development in the City of Sacramento between January 1, 2025 and December 31, 2030.
3. Make a legislative finding and declaration that a special statue is necessary, and make additional minor conforming changes to statute.

ARGUMENTS IN SUPPORT

According to the author, “SB 1139 is intended to coordinate flood control in the City and County of Sacramento and is needed to ensure the safety of Sacramento residents, businesses, schools, and other critical infrastructure.”

Writing in support, the City of Sacramento states, “The Sacramento Region is rated as the second-highest region at risk of major flooding in the nation. […] By extending the deadline for [the Sacramento Area Flood Control Agency] to complete the necessary projects to achieve the required urban level of flood protection from 2025 to 2030, SB 1139 will ensure that necessary flood protection projects can be completed without delaying development including much needed housing for the region.”

ARGUMENTS IN OPPOSITION

None received

COMMENTS

This bill is double-referred. This bill is referred to both this Committee and the Senate Local Government Committee. Elements of the bill under the Senate Local Government Committee’s jurisdiction will be discussed before that Committee and are included here for context and completeness only.

Allows new development to continue. The bill will allow the City of Sacramento to continue approving new development in the event that the urban level of flood protection is not achieved by the end of 2025. According to materials provided by the author’s office, the Sacramento Area Flood Control Agency (SAFCA) is making adequate progress toward achieving the urban level of flood protection, as required by state law, but has not yet fully achieved it.

Flood control projects to protect the City of Sacramento. According to its 2023 Urban Level of Flood Protection Annual Report, SAFCA reports that many projects – including Folsom Dam modifications (the new spillway), among others – are complete. Most of the work for the American River Common Features Natomas Basin Project is projected to be completed by 2025 with work on two reaches expected to be completed by 2026. For a year or two after 2025, according to SAFCA, the Sankey Gap floodplain inside the Natomas Basin will be a little larger. In addition in South Sacramento, changes in levee certification requirements will require the modification of the Beach Lake levee. By the end of 2025, the Beach Lake levee will be able to contain a 200-year flood event, but will not meet the freeboard requirements providing more margin for safety until 2026.

SAFCA, state and federal appropriations remain consistent with achieving the required urban level of flood protection plan, and no local or state delays in reaching the urban level of flood protection have occurred. Local agencies have exceeded 100% of their planned expenditures for flood protection.

Reporting requirement. Given the potential effect on state liability, the Committee may wish to add a reporting requirement to ensure that the Legislature has advance notice prior to 2030 of whether the urban level of flood protection has been achieved for the City of Sacramento. [Amendment #1]

Recent related legislation.

SB 586 (Eggman, 2023) would extend the deadline to meet the urban level of flood protection to 2040 for the Mossdale Tract and the City of West Sacramento, as provided. (This bill is on the Assembly floor.)

SB 901 (Pan, Chapter 708, Statutes of 2022) authorizes state participation in the City of West Sacramento Flood Risk Reduction Project, sets boundaries for Reclamation District 900, and extends the deadline for the City of West Sacramento to achieve the urban level of flood protection from 2025 to 2030.

AB 921 (McCarty, 2022) would have extended the deadline for the City of West Sacramento to achieve the urban level of flood protection from 2025 to 2030, revised and updated the state authorization for the West Sacramento Flood Risk Reduction Project, and consolidated entities responsible for levee maintenance. (This bill was held in this committee.)

AB 838 (Eggman, Chapter 208, Statutes of 2020) extended the date for the Mossdale Tract to reach an urban level of flood protection from 2025 to 2028.

AB 2108 (Eggman, 2014) would have made a number of changes to the statutes relating to flood management in the Sacramento-San Joaquin Valley, including, among others, revising the definition of “adequate progress.” (This bill was held in this committee.)

SUGGESTED AMENDMENTS

AMENDMENT 1

Please add subdivision (d) to GOV 65962.3 as follows:

(d) On or by December 31, 2029, the Sacramento Area Flood Control Agency shall provide a report to the Senate Natural Resources and Water Committee, the Assembly Water, Parks and Wildlife Committee, the Senate Budget Subcommittee No. 2, and the Assembly Budget Subcommittee No. 4 describing plans and actions taken to improve flood protection in the City of Sacramento pursuant to this section in the preceding five years.  In order to minimize duplication, the legislative report may be composed of materials developed to meet other requirements.

SUPPORT

City of Sacramento (sponsor)

County of Sacramento (sponsor)

OPPOSITION

None received

-- END --

1. These are Chapters 364 – 369 of the Statutes of 2007. ↑

2. Project levees are those levees that are part of the State Plan of Flood Control representing federal and state flood protection efforts in the Sacramento River and San Joaquin River watersheds. ↑

3. Added by subsequent legislation – SB 1278 (Wolk, Chapter 553, Statutes of 2012) ↑