LA 2012 National Planning Conference

American Planning Association

Threats to California’s Delta Sustainability:

Overview of the Legal and Planning Framework

Monday, April 16, 2012

Presented By: Margaret M. Sohagi The Sohagi Law Group, PLC

11999 San Vicente Boulevard, Suite 150

Los Angeles, CA 90049-5136

Telephone: (310) 475-5700

Email: msohagi@sohagi.com

Multi-Hazards Land Use Planning

• The Disaster Mitigation Act of 2000

• AB 2140: Safety Element

• AB 162: Flood Planning

• SB 5: Flood Management

• AB 70: Flood Liability

The Disaster Mitigation Act of 2000

• Updated the Federal Robert T. Stafford Disaster

Relief and Emergency Assistance Act. • Reinforces the importance of pre-disaster mitigation

planning. • Requires State, local and Tribal governments to

develop a Hazard Mitigation Plan in order to receive certain types of non-emergency disaster assistance. ▫ Encourages jurisdictions to integrate mitigation with

everyday decision-making regarding land-use planning, flood plain management, site design and other functions. 44 CFR 201.6

General Plans: Safety Element (AB 2140 Hancock)

• Authorizes a city, county, or a city and county to

adopt, with its safety element, a federally specified local Hazard Mitigation Plan (HMP), and requires the Office of Emergency Services to give financial incentives to help with developing and adopting a plan. (Gov. Code § 65302.6.)

General Plans: Safety Element

• Local HMP must include: Earthquake evaluation performance of public

facilities/essential services.

Inventory of private facilities that are potentially hazardous.

Plan to reduce potential risk of facilities.

AB 162: Flood Planning (Wolk) Chapter 369, Statutes of 2007

• AB 162 expands consideration of flood risk in local land use planning throughout California, requiring cities and counties to amend local general plans in several very specific ways.

• Requires cities and counties to address flood-related matters in the land use, conservation, safety and housing elements of their general plans. (Gov. Code § 65302.)

AB 162

General Plan elements

• The land use element must identify and annually review the areas covered by the general plan that are subject to flooding as identified by flood plain mapping by either the Federal Emergency Management Agency (FEMA) or the Department of Water Resources (DWR). (Gov. Code § 65302(a).)

AB 162

General Plan elements (cont’d)

• Upon the next revision of the housing element on or after January 1, 2009…

▫ the conservation element of the general plan must identify rivers, creeks, streams, flood corridors, riparian habitat, and land that may accommodate floodwater for the purposes of groundwater recharge and storm-water management. (Gov. Code § 65302(d)(3).)

AB 162

General Plan Safety Elements • Upon the next revision of the housing element on or

after January 1, 2009… ▫ The safety element must identify information

regarding flood hazards including: Flood hazard zones;

Maps published by FEMA, USACE, DWR, CVFPB, OES, etc. including the 200-year flood plain maps;

Maps of Levee protection zones;

Areas subject to inundation from levee failure;

Historical data on flooding;

Existing and planned development in flood hazard zones; and

Agencies responsible for flood protection.

(Gov. Code § 65302(g)(2)(A).)

AB 162

General Plan Safety Elements (cont’d)

Establish goals, policies and objectives to protect from unreasonable flooding risks including:

Avoiding or minimizing the risks of flooding new development;

Evaluating whether new development should be located in flood hazard zones; and

Identifying construction methods to minimize damage;

(Gov. Code § 65302(g)(2)(B)(i)-(ii).)

AB 162

General Plan Safety Elements (cont’d)

▫ Maintaining the integrity of essential public facilities during flooding;

▫ Locating new essential public facilities outside of flood hazard zones or identifying methods to minimize damage;

▫ Establishing cooperative working relationships among public agencies;

▫ Establishing feasible implementation measures.

(Gov. Code § 65302(g)(2)(B)(iii)-(v); (C).)

• Housing Needs: The determination of available land suitable for urban development may exclude lands where FEMA or DWR has determined that the flood management infrastructure designed to protect that land is not adequate to avoid the risk of flooding. (Gov. Code §§ 65584.04; 65584.06.)

AB 162 General Plan Safety Elements (cont’d)

AB 162

General Plan Safety Elements (cont’d)

• Establishes consultation and review procedures.

• Additional review provisions apply to each county or city located within the Sacramento and San Joaquin Drainage District.

(Gov. Code § 65352.)

SB 5: Flood Management (Machado)

Chapter 364, Statutes of 2007

• SB 5 seeks to address flooding problems in portions of the Delta.

• Provides flood management for the Central Valley.

• 200 year flood is the new standard for urban areas.

• New Central Valley Flood Management (CVFM) Plan by 2012.

• Amends Government Code, Water Code and Health and Safety Code.

SB 5(cont’d)

• A Central Valley Flood Protection(CVFP) Plan must be adopted by July 1, 2012.

• Dept. of Water Resources and Central Valley Flood Protection Board to prepare.

• http://www.cvfpb.ca.gov/

▫ Central Valley Flood Protection Act of 2008

▫ Water Code Section 9600 et seq.

SB 5 (cont’d)

• Cities and counties within the boundaries of the CVFP District must amend their general plans and zoning to conform to the CVFP Plan.

• General Plan amendments must be completed within 24 months of the adoption of the flood protection plan.

• Zoning amendments must be completed within 36 months.

(Gov. Code § 65302.9.)

Central Valley Flood Protection Plan

• Primary goal is to improve flood risk management.

• Called the “State Systemwide Investment Approach”.

• Focuses on improving flood protection for land protected by State Plan of Flood Control (SPFC) facilities.

California Department of Water Resources

Division of Flood Management

Geographic Scope of Central Valley Flood Protection Plan

CVFP Plan (cont’d)

• Under the CVFPP (for areas protected by SPFC facilities only): ▫ Urban level of flood protection against a 200-yr flood

or urban and urbanizing areas (i.e. Stockton) ▫ Options for protecting small communities from a 100-

yr flood ▫ Rural-agric protection option ▫ Maintaining SPFC levee crown elevations and access

roads ▫ Levee improvements, ▫ Agricultural conservation easements

CVFPP: Local Requirements

• All cities and counties within the Sacramento-San Joaquin Valley will be required to make findings related to the urban (200-year) level of flood protection before entering into a development agreement for a property, approving a discretionary permit or entitlement for any property development or use, or approving a ministerial permit that would result in construction of a new residence, or approving a tentative map/parcel map for a subdivision.

• California Government Code Sections 65865.5, 65962, and 66474.5

• http://www.cvfpb.ca.gov/CVFPP/03_CVFPP-organization-sheet-12jan2012.pdf

AB 70: Flood Liability (Jones)

• A city or county may be held responsible for portions of property damage caused by a flood to the extent that it has increased the state’s exposure to liability for property damage by unreasonably approving new development in a previously undeveloped area that is protected by a state flood control project, unless the city or county meets specified requirements.

• Water Code § 8307

Why Do We Need Sustainable Levees in the Delta?

Mike Mirmazaheri, PE, CFM

Manager, Delta Levees Program

2012 National Planning Conference

Los Angeles, California

April 16, 2012

Sample Headline

Sample Headline

May 3, 2012

Delta Facts

Supports California’s

multi-billion-dollar agricultural industry

Provides recreation to

12 million users

Over 24 million people

depend on the Bay-Delta

system for drinking water! (two-thirds of the State’s population)

Supports the largest estuary on the west coast -

and 80% of the state's commercial salmon fisheries

May 3, 2012

De

lta Levee

s

Feather River Orographics

California Hydrology

Precipitation

vs.

Population

75% of water

supply in No. Cal

SWP

Max. Pumping Capacity – 10,300 cfs

CVP

Max. Pumping Capacity – 4,600 cfs

Salinity Control – flushing the system

THM – bi-product

Court Decisions

Conveyance Challenges & Reliability

May 3, 2012

Threats to the Delta

Possible impacts to the Delta from:

- Subsidence

- Earthquakes

- Floods

- Climate Change

- Combination of above

Why Mitigate the Threats?

Delta Levees Contribute to:

- Minimizing Disruption of Water Supplies

- Maintaining Quality of Water Supplies

- Reducing Salts in Water Supplies

- Preserving Ecosystem

- Protecting State Infrastructure

- Protecting Local Assets

DRMS

Phase I

• Risk Analysis to Evaluate the Impact to Delta Levees

• Consequences to Economy & Eco-System based on Risks

Phase II

• Development of Risk Reduction/Risk Management Strategies for Long-Term Management of Delta

Levee Standards

EBMUD Aqueduct

• System-wide stable levees

• HMP standard throughout the Delta

• PL84-99 Standard, with justification

• Integrate with other large-scale planning efforts (CVFPP, Delta Plan, BDCP)

• Encourage multi-benefit projects

• Prioritize projects that provide highest benefits

• Ensure projects are fully mitigated

• Ensure net habitat enhancement for fish and wildlife

Delta Levees Guiding Principals

Priority for DWR Investment in Delta Integrated FM

Categories of Benefit Analysis

Localized Flood

Protection

Levee Network Ecosystem

Conservation

1 Protect Urban Areas Protect Water Quality and

Water Supply Conveyance in

the Delta

Protect Existing and

Provide for Net Increase in

Channel-margin Habitat

2 Protect Small

Communities and

Critical Infrastructure

(Located Outside of

Urban Areas)

Protect Flood Water

Conveyance in and through

the Delta

Protect Existing and

Provide for Net

Enhancement of

Floodplain habitat

3 Protect Agriculture and

Local Working

Landscapes

Protect Cultural, Historic,

Aesthetic, and Recreational

Resources (Delta as Place)

Protect Existing and

Provide for Net

Enhancement of Wetlands

Sample Levee Work

Before After

Questions?

Levee Risk and Reliability

in the Bay Delta

Robb Eric S. Moss, Ph.D., P.E.

Assoc. Prof. of Hazard and Risk Engineering

APA 2012 National Planning Conference

Hazard

Risk

Mitigation

Interstate and State Highways

Rail Corridors and Infrastructure

Deep Water Port Facilities

High Dollar Agricultural Land

Residential and Municipal Land

Power Transmission and Storage

Aquaducts and Canals (>20 million users)

~1700 km of levees

after DWR 1993

Hazard

Risk

Mitigation

o Construction

o Foundation Conditions

o Maintenance

o Levee Continuity

o Freeboard/Subsidence

DWR 1993

Hazard

Risk

Mitigation

Loading

Function:

Failure

Mechanism:

Ground

Shaking

High

Water

Static

Seepage Over-

Topping

ErosionSlump/

Spread

SlidingBearing

Mechanisms are often Compounded and Cascading.

Causative Loading Mechanism can be Difficult to Pinpoint.

Aging, Sea Level Rise, Urbanization, Poor Maintenance…

from Moss and Eller 2007

Hazard

Risk

Mitigation

Hazard

Risk

Mitigation

Greater than 186 levee failures since 1900.

Bearing Sliding Slump/Spread

Seepage Erosion Over-topping

from Moss and Eller 2007

Hazard

Risk

Mitigation

Lessons learned/relearned from Katrina

Hazard

Risk

Mitigation

Lessons learned/relearned from Katrina

o Don’t build levees out of sand…

o Watch the intersections/connections

o Jurisdictional issues???

o Be sure of your benchmark

o Know you loading mechanisms

o Maintain levees per design

o Treat as a system and not components

o Communicate the risk

New Orleans Levees design ~250yr return

Bay Delta Levees design ~100yr return

Risk=(Probability of Failure)x(Consequences)

Component Failure – single levee failure

System Failure – failure of “weak link”

results in overall failure

Consequences – property loss, crop loss, infrastructure and building

loss, economic loss, and life loss.

Hazard

Risk

Mitigation

Jones Tract (June 2004)

$10 million crop loss

$100 million clean up

Hazard

Risk

Mitigation

17th Street Canal NOLA

The most recently constructed elements of the city’s

flood control infrastructure (built in the mid 1990’s).

Rogers 2009

Hazard

Risk

Mitigation

Hazard

Risk

Mitigation

Shut-down of CA aqueduct

Flooding of Residential Areas

Disruption of Power, Rail, Hwy, Port

State Wide Economic Repercussions

Hazard

Risk

Mitigation

after NGS

Hazard

Risk

Mitigation Pinpoint Critical Nodes/Lifelines

(consequences)

Identify Modes of Component/System Failure

(probability)

Mitigate – Engineering / Planning / Design

“not rocket science”

time and resource limited

proactive as well as

informed reactive

redundant and

resilient systems

12 Recommendations from Delta Vision

• Delta needs special legal status

• Ecosystem must function as a healthy estuary

• Water supply must be managed with higher efficiency

• “reasonable use” and “public trust” must be the

foundation of policy

• Conservation, efficiency, and sustainability must drive

policy

• Diversions must be reduced and diversion timing

improved

• New infrastructure is in dire need (peripheral canal)

• Strengthen existing levees, improve floodplain

management, improve water circulation and quality

• Governance and boundaries need to be changed; an

independent body with secure funding and the ability

to make change

• Inappropriate urbanization must be curbed

• Policies should target resiliency and adaptability

Hazard

Risk

Mitigation

Hazard

Risk

Mitigation

1) Planning - Don’t build in flood-prone areas

2) Engineering – Systems and Component Fixes/Redundancy

Bearing Sliding Slump/Spread

Seepage Erosion Over-topping

raise crest (planning

and design failure) seepage barrier and/or

surface improvement armoring and/or surface

improvement

structural fix and/or

soil modification

Hazard

Risk

Mitigation

Flood Hazard Legislation

AB162: Requires cities and counties to address flood-related

matters in the land use, conservation, safety, and housing

elements of their general plan.

AB70: Provides that a city or county may be required to

assume a fair and reasonable share of the increased flood

liability caused by its unreasonable approval of developments

following the failure of a state flood control project.

State Multi-Hazard Mitigation Plan (SHMP)

Outlines California State Government's understanding and

evaluation of the hazards the state faces and the strategies,

goals, and activities it will pursue to address them (CalEMA

2007 and 2010).

References

California Emergency Management Agency (2010) “State Hazard Mitigation

Plan (SHMP).” http://hazardmitigation.calema.ca.gov/.

DWR (1993). Sacramento San Joaquin Delta Atlas. Department of Water

Resources, Sacramento.

Florian, M., Frank, R. M., McKernan, T., McPeak, S. W., Reilly, W. K., and

Seed, R. B. (2008). "Delta Vision: Our Vision for the California Delta."

Govenor's Delta Vision Blue Ribbon Task Force.

Moss, R. E. S., and Eller, J. M. (2007). "Estimating the Probability of Failure

and Associated Risk of the California Bay Delta Levee System." GeoDenver,

ASCE conf. proc.

National Geographic. (2010).

http://ngm.nationalgeographic.com/2010/04/plumbing-california

Rogers, J.D. (2009) Personal Communication, Missouri University S&T.

Seed, R. B., Bea, R. G., Athanasopoulos, A. G., Boutwell, G. P., Bray, J. D.,

Cheung, C., Cobos-Roa, D., Harder, L. F., Moss, R. E. S., Pestana, J. M.,

Riemer, M. F., Rogers, J. D., Storesund, R., Vera-Grunauer, X., and

Wartman, J. (2008). "New Orleans and Hurricane Katrina. III: The 17th

Street Drainage Canal." Journal of Geotechnical and Geoenvironmental

Engineering, 134(5), 750-761.