BILL NUMBER: AB 74 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 26, 2009
AMENDED IN ASSEMBLY APRIL 23, 2009
AMENDED IN ASSEMBLY MARCH 5, 2009
INTRODUCED BY Assembly Member Chesbro
(Principal coauthor: Assembly Member Nielsen)
(Coauthor: Senator Wiggins)
DECEMBER 16, 2008
An act to add Sections 12645, 12646, 12647, 12670.22, and
12670.23 to, and to add the heading of Article 2 (commencing with
Section 12645) to Chapter 2 of, and to repeal the heading of Article
2 (commencing with Section 12648) of Chapter 2 of, Part 6 of Division
6 of, the Water Code, relating to flood control. An
act to add Sections 12670.22 and 12670.23 to the Water Code, relating
to flood control.
LEGISLATIVE COUNSEL'S DIGEST
AB 74, as amended, Chesbro. Flood control: Middle Creek and
Hamilton City Flood Damage Reduction and Ecosystem Restoration
Projects.
(1) Existing law provides for state cooperation with the federal
government in the construction of specified flood control projects.
This bill, with a certain exception, would provide that
specified provisions of law that authorize financial assistance to
flood control projects in the Sacramento-San Joaquin Watersheds shall
not be construed to expand the liability of the state for the
operation and maintenance of any flood management facility that is
outside the scope of a designated state plan of flood control. The
bill would authorize the state to provide
subvention funds for the Middle Creek Flood Damage
Reduction and Ecosystem Restoration Project in Lake County and the
Hamilton City Flood Damage Reduction and Ecosystem Restoration
Project in Glenn County, at an estimated cost to the state of the sum
that may be appropriated by the Legislature for state cooperation,
upon the recommendations and advice of the Central Valley Flood
Protection Board. The bill would require the Lake
County Watershed Protection District and Reclamation District No.
2140 to carry out those respective projects and
, to give prescribed assurances to the Secretary of the
Army, and to enter into specified agreements with the Department
of Water Resources, thereby imposing a state-mandated local
program.
(2) 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:
SECTION 1. The heading of Article 2 (commencing
with Section 12648) of Chapter 2 of Part 6 of Division 6 of the
Water Code is repealed.
SEC. 2. The heading of Article 2 (commencing
with Section 12645) is added to Chapter 2 of Part 6 of Division 6 of
the Water Code, to read:
Article 2. Projects in the Sacramento-San Joaquin Watersheds
SEC. 3. Section 12645 is added to the Water
Code, to read:
12645. The Legislature finds and declares all of the following:
(a) In 1911, the Legislature adopted a flood control plan for the
Sacramento Valley proposed by the federal California Debris
Commission and created the Reclamation Board to implement the plan,
working with the federal government. The state's adoption of a
valley-wide flood management plan was intended to counteract local
flood control projects that conflicted with each other, in what has
been called "dog-eat-dog reclamation." Six years later, California
gained Congressional authorization for the United States Army Corps
of Engineers (Corps) to collaborate with the state in building and
maintaining the Sacramento River Flood Control Project.
(b) For most of the 20th century, the state and federal
governments built or rebuilt levees, weirs, and bypasses to increase
conveyance of flood waters downstream. The Sacramento River Flood
Control Project and the federal-state flood control project in the
San Joaquin Valley include approximately 1,600 miles of levees and
other facilities to reduce central valley flood risk, now defined as
the State Plan of Flood Control in subdivision (j) of Section
5096.805 of the Public Resources Code. The Corps often constructed
the federal "project levees" in both the Sacramento and San Joaquin
Basin from already existing private levees. In 1953, the federal
government transferred the Sacramento River Flood Control Project to
the state, which in turn passed responsibility for operation and
maintenance to local reclamation districts.
(c) In 2003, a state Court of Appeal in Paterno v. State of
California (2003) 113 Cal.App.4th 998, highlighted the liability
risks the state faces from failed levees. The Paterno court held the
state liable for failure of a levee that was generally operated and
maintained by a local levee maintenance district. The state's
liability was substantial because homes and a shopping center were
built behind the levee and suffered from the resulting flood.
(d) Up to the time of the Paterno decision, the state authorized
funding for various flood control projects in the Sacramento-San
Joaquin River watershed. These statutory authorizations included
varying provisions regarding responsibility and liability for
operation and maintenance of the flood control facilities, and may or
may not have incorporated the specified facilities into the
federal-state Sacramento River or San Joaquin River flood control
projects. After the court ruling in Paterno, the status of each flood
facility became critically important to determining liability, and
legal ambiguities led to questions about whether particular
facilities were incorporated into a federal -state flood control
project. In some cases, despite a location between two project
levees, certain levees remain outside the jurisdiction of a
federal-state flood control project, with local agencies retaining
liability.
(e) In 2006, California voters approved the Disaster Preparedness
and Flood Prevention Bond Act of 2006, which authorized the issuance
of general obligation bonds in the amount of $4.9 billion for flood
protection and defined the federal-state flood control project as the
"State Plan of Flood Control." The following year, the Legislature
passed a package of bills to reform state flood protection policy in
the central valley. These laws required the Department of Water
Resources to develop, and the Central Valley Flood Protection Board
to adopt, a Central Valley Flood Protection Plan, which is broader
than the State Plan of Flood Control, affecting the entire watersheds
of the Sacramento and San Joaquin Valley. These laws addressed state
liability for central valley flood control facilities, ensuring that
the state's liability was limited to facilities identified in the
State Plan of Flood Control. These laws did not specifically address
the facilities described in this article.
SEC. 4. Section 12646 is added to the Water
Code, to read:
12646. Unless the context requires otherwise, the definitions set
forth in this section govern the construction of this chapter.
(a) "Board" means the Central Valley Flood Protection Board.
(b) "Plan" means the Central Valley Flood Protection Plan.
(c) "Project levee" means any levee that is part of the facilities
of the State Plan of Flood Control.
(d) "Public safety infrastructure" means public safety
infrastructure necessary to respond to a flood emergency, including,
but not limited to, street and highway evacuation routes, public
utilities necessary for public health and safety, including drinking
water and wastewater treatment facilities, and hospitals.
(e) "Sacramento-San Joaquin Valley" means any lands in the bed or
along or near the banks of the Sacramento River or San Joaquin River,
or any of their tributaries or connected therewith, or upon any land
adjacent thereto, or within any of the overflow basins thereof, or
upon any land susceptible to overflow therefrom. The Sacramento-San
Joaquin Valley does not include lands lying within the Tulare Lake
basin, including the Kings River.
(f) "State Plan of Flood Control" has the meaning set forth in
subdivision (j) of Section 5096.805 of the Public Resources Code.
SEC. 5. Section 12647 is added to the Water
Code, to read:
12647. (a) The state shall not have responsibility or liability
for the operation and maintenance of central valley flood control
facilities identified in this article unless one or more of the
following applies:
(1) The department identifies the facility as part of the State
Plan of Flood Control.
(2) The state has explicitly accepted the transfer of liability
for the facility from the federal government.
(3)Board incorporates the facility into the State Plan of Flood
Control pursuant to Section 9611.
(b) Unless otherwise specifically provided, nothing in this
article shall be construed to expand the liability of the state for
the operation or maintenance of any flood management facility outside
the scope of the State Plan of Flood Control, except as specifically
determined by the board pursuant to Section 9611.
(c) Use of the phrase "adopted and authorized" in this article
does not, by itself, reflect incorporation of the specified facility
into the State Plan of Flood Control or assumption of liability by
the state, unless one of the conditions described in subdivision (a)
applies to the facility.
SEC. 6. SECTION 1. Section 12670.22
is added to the Water Code, to read:
12670.22. (a) The state may provide subvention
funds for the Middle Creek Flood Damage Reduction and Ecosystem
Restoration Project in Lake County substantially in accordance with
the Flood Damage Reduction and Environmental Restoration, Middle
Creek, Lake County, California: Report of the Chief of Engineers of
the United States Army Corps of Engineers dated November 29, 2004,
and as authorized by Section 1001 (11) of the federal
Water Resources Development Act of 2007 (Public Law 110-114), at an
estimated cost to the state of the sum that may be appropriated for
state cooperation by the Legislature upon the recommendations and
advice of the Central Valley Flood Protection Board , including
payment for any fish and wildlife enhancement features as provided in
Section 12847 .
(b) The Lake County Watershed Protection
District shall give assurances satisfactory to the Secretary of the
Army that the local cooperation required by state or
federal law will be furnished by the district in connection with the
project.
(c) Lake County Watershed Protection District, in conjunction with
the Department of the Army, shall carry out the plans and project
and may make modifications and amendments to the plans as may be
required by state or federal law.
(d) Lake County Watershed Protection District shall enter into an
agreement with the department pursuant to which the district agrees
to indemnify and hold harmless and save the state, and its officers,
agents, and employees, from any and all liability for damages that
may arise out of the planning, design, construction, operation,
maintenance, repair, and rehabilitation of the project.
(e) The authorization granted by this section does not affect any
eligibility of Lake County Watershed Protection District to receive
state funding made available pursuant to provisions of law other than
this part if the receipt of those funds does not result in
overpayment for any feature of the project.
(f) The Legislature finds and declares that the project described
in subdivision (a) modifies and replaces portions of the project
described in Section 12656.5. The project described in subdivision
(a) shall constitute a part of the State Plan of Flood Control and
the portion of the project described in Section 12656.5 that is
replaced by the project described in subdivision (a) shall not
constitute a part of the State Plan of Flood Control.
SEC. 7. SEC. 2. Section 12670.23 is
added to the Water Code, to read:
12670.23. (a) The state may provide subvention
funds for the Hamilton City Flood Damage Reduction and Ecosystem
Restoration Project in Glenn County substantially in accordance with
the Hamilton City Flood Damage Reduction and Ecosystem Restoration,
Glenn County, California: Report of the Chief of Engineers of the
United States Army Corps of Engineers dated December 22, 2004, and
authorized by Section 1001 (8) of the federal Water
Resources Development Act of 2007(Public Law 110-114), at an
estimated cost to the state of the sum that may be appropriated for
state cooperation by the Legislature upon the recommendations and
advice of the Central Valley Flood Protection Board , including
payment for any fish and wildlife enhancement features as provided in
Section 12847 .
(b) Reclamation District No. 2140 shall give assurances
satisfactory to the Secretary of the Army that the local cooperation
required by state or federal law will be furnished by the
district in connection with the project.
(c) Reclamation District No. 2140, in conjunction with the
Department of the Army, shall carry out the plans and project and may
make modifications and amendments to the plans as may be required by
federal or state law.
(d) Reclamation District No. 2140 shall enter into an agreement
with the department pursuant to which the district agrees to
indemnify and hold harmless and save the state, and its officers,
agents, and employees, from any and all liability for damages that
may arise out of the planning, design, construction, operation,
maintenance, repair, and rehabilitation of the project.
(e) The authorization granted by this section does not affect any
eligibility of Reclamation District No. 2140 to receive state funding
made available pursuant to provisions of law other than this part if
the receipt of those state funds does not result in overpayment for
any feature of the project.
SEC. 8. SEC. 3. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district are the result of a program for
which legislative authority was requested by that local agency or
school district, within the meaning of Section 17556 of the
Government Code and Section 6 of Article XIII B of the California
Constitution.