BILL ANALYSIS
AB 74
Page 1
Date of Hearing: April 28, 2009
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared William Huffman, Chair
AB 74 (Chesbro) - As Amended: April 23, 2009
SUBJECT : Sacramento Valley Flood Management: Middle
Creek/Hamilton City
SUMMARY : Clarifies law as to State liability for Central
Valley flood control subvention projects and authorizes two
flood management projects in the Sacramento River watershed.
Specifically, this bill :
1)Defines certain terms related to Central Valley watershed
flood protection, including:
a) "State Plan of Flood Control" is the state-federal flood
control projects on the Central Valley Floor, as defined in
the Public Resources Code.
b) "Central Valley Flood Protection Plan" is the broader
flood protection plan, now in development, for the entire
Sacramento-San Joaquin River watershed, as defined in the
Water Code.
2)Clarifies that the State has no responsibility or liability
for operation and maintenance of Central Valley flood control
facilities unless:
a) The Department of Water Resources (DWR) identifies the
facility as part of the State Plan of Flood Control.
b) The State has explicitly accepted the transfer of
liability for the facility from the Federal Government.
c) The Central Valley Flood Protection Board incorporates
the facility into the State Plan of Flood Control and
accepts liability for the facility in conjunction with the
approval of the Central Valley Flood Protection Plan
pursuant to Section 9611 of the Water Code.
3)Clarifies that nothing in Article 2 of Division 6 of the Water
Code (Sacramento-San Joaquin Valley flood subvention projects)
shall be construed to expand the liability beyond the State
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Plan of Flood Control.
a) Allows the Central Valley Flood Protection Board to
incorporate subvention projects into the State Plan of
Flood Control.
b) Clarifies that the statutory phrase "adopted and
authorized," by itself, does not constitute incorporation
of the specified flood control facility into the State Plan
of Flood Control.
4)Authorizes flood control subvention funding for the Middle
Creek Flood Damage Reduction and Ecosystem Restoration Project
in Lake County pursuant to specified federal studies and legal
authority.
a) Requires Lake County Watershed Protection District (Lake
District) to provide necessary local cooperation assurances
to the United States Army Corps of Engineers (Corps).
b) Requires the Lake District to work with the Corps to
implement the project.
c) Allows the Lake District and the Corps to modify project
as required by law.
5)Authorizes flood control subvention funding for the Hamilton
City Flood Damage Reduction and Ecosystem Restoration Project
in Glenn County pursuant to specified federal studies and
legal authority.
a) Requires Reclamation District 2140 (District 2140) to
provide the necessary local cooperation assurances to the
United States Army Corps of Engineers (Corps).
b) Requires District 2140 to work with the Corps to
implement the project.
c) Allows District 2140 and the Corps to modify project as
required by state or federal law.
6)Specifies that no local agency reimbursement is required
because the local agency requested this legislative authority.
7)Makes legislative findings, in the Water Code, related to
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Central Valley flood protection.
EXISTING LAW
1)Authorizes State funding for locally implemented flood control
projects throughout the state, under the flood subventions
program, and State-managed federal flood control projects in
the Central Valley.
2)Requires DWR to specify the facilities included in the State
Plan of Flood Control and develop a more comprehensive Central
Valley Flood Protection Plan for the entire Sacramento-San
Joaquin River watershed.
3)The federal Water Resources Development Act of 2007 (2007
WRDA) authorized the Middle Creek and Hamilton City flood
control projects.
FISCAL EFFECT : Both projects are subject to Corps cost sharing
rules, with a 65% federal, 35% non-federal split. The State may
contribute a portion of the non-federal share. Based on Corps
estimates, the projects will cost as follows:
1)Middle Creek: $48 million, with $31.3 million (federal) and
$16.7 million (non-federal).
2)Hamilton City: $55.2 million, with $35.9 million (federal) and
$19.3 million (non-federal).
COMMENTS : This bill resolves a critical ambiguity as to the
State's liability for providing flood subvention funding to
projects in the Central Valley watershed, while providing a new
authorization for improving certain existing flood control
facilities. Flood subvention funding goes to projects where
there is a public benefit and a State interest, but the State is
not directly involved in implementing the project. Instead, the
State provides funding to a local agency that works with the
Corps in building a local flood project. State authorization
for funding is contingent on preceding federal statutory
authorization. Both projects at issue here lie within the
Sacramento River watershed, but are not part of the
state-federal Sacramento River Flood Control Project.
Originally, this bill "adopted and authorized" these two flood
control projects, which exposed the ambiguity as to the State's
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liability for using that phrase in the context of Central Valley
flood subvention projects. This phrase, previously used
commonly in this Article 2, is a remnant of a time before the
2003 Paterno decision held the State liable for failure of a
State levee. State funding for a local flood project, alone,
does not impose liability on the State, but use of the "adopted
and authorized" phrase may suggest - incorrectly - that the
State may be "adopting" the facility into the federal-state
Sacramento River Flood Control Project (i.e. State Plan of Flood
Control). This bill now clarifies when the State is or is not
liable for a Central Valley flood control facility, in this
article where numerous Central Valley flood subvention projects
were authorized.
State Plan of Flood Control vs. Central Valley Flood Protection
Plan. Relying on existing statutes, this bill defines certain
key terms that are necessary for clarifying the law on State
liability for Central Valley flood protection. (This bill's
findings, which will be placed in the Water Code, explain some
of the history of the Central Valley flood project and State
liability for flood protection.) The federal-state flood
projects on the Central Valley floor are defined as the "State
Plan of Flood Control," for which the State has responsibility
for operation and maintenance. In contrast, the "Central Valley
Flood Protection Plan" is a broader flood management plan for
the entire Sacramento-San Joaquin River watershed, which DWR is
now developing for adoption by the Central Valley Flood
Protection Board. These terms were developed as part of the
2006 flood bond and the 2007 Central Valley flood protection
reform bill package. The distinction between the two has
significance, legally, for State liability, which is specified
both in this bill and the 2007 flood bill package.
Middle Creek Flood Project (Lake County). This area of Lake
County was "reclaimed" in the first half of the 20th Century by
local levee construction. In the 1950's, the Corps added
levees, which resulted in the isolation of 1600 acres of
wetlands and floodplains from the largest tributaries to Clear
Lake. As a result of levees and other changes in the watershed,
sediment flows into Clear Lake increased and water quality
deteriorated, as the sediment increased phosphorous. This
project will increase flood protection for certain buildings and
public roads. More significantly, the project restores the
natural ecosystem and improves Clear Lake water quality, due to
restoration of wetlands that will reduce the nutrient loading in
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water flows and sediment. As reflected in the Corps' analysis,
these environmental aspects will benefit the public at large,
justifying the expenditure of public money. These public
benefits led to federal authorization in the 2007 WRDA
Hamilton City Flood Project (Glenn County). The small town of
Hamilton City and surrounding agricultural lands are marginally
protected from flooding by a degraded private levee build in
1904 called the "J" Levee. Hamilton City has mounted flood
fights and evacuated six times in the last 20 years.
Neighboring agricultural lands suffer similarly. This project
will build a new 6.8-mile setback levee that will increase flood
protection for Hamilton City and surrounding lands, while
creating 1500 acres of riparian habitat on the riverside of the
new levee. These dual flood protection and ecosystem
restoration benefits, together, generated sufficient benefit,
under the Corps' benefit-cost ratio analysis guidelines, which
now emphasize ecosystem benefits, to gain federal support for
funding the project, leading to federal authorization in 2007
WRDA. The State has funded development of this project, but
deferred its support for construction until the local
reclamation district agreed to be the non-federal sponsor and,
in effect, accept liability for the new levee.
Common Characteristics. While the introduced version of this
bill included only the Lake County project, Hamilton City was
added because they shared several common characteristics:
1) Subvention Projects. Neither project is part of the
State Plan of Flood Control, so the projects are eligible
only for subvention funding. Hamilton City's "J" Levee is
privately owned and maintained by Reclamation District
2140, the non-federal sponsor. The Lake County project is,
however, maintained by the State, outside of the State Plan
of Flood Control. This subvention funding will not expand
State liability, as the Lake District will accept liability
and cooperate with the Corps in implementing this project.
2) No Local Agency Reimbursement. Because the local agency
for each project requested this authorization, as reflected
in the Committee bill file, the State will have no
liability for reimbursement of a state mandate. While this
bill authorizes subvention funding for these projects,
actual funding depends on future appropriations to DWR for
flood subventions.
3) Non Federal Sponsors. Both projects have local agencies
as the non-federal partner for the Army Corps of Engineers,
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which will transfer liability for the projects to those
parties. Each local agency is authorized to modify the
project, in conjunction with the Corps.
4) Broad Public Benefits. Both projects include
significant environmental benefits, which benefit the
public more generally and provided the necessary benefits
to justify Corps support and legal authorization in WRDA.
The flood protection benefits relatively smaller economic
assets, so these environmental benefits were critical to
federal funding.
REGISTERED SUPPORT / OPPOSITION :
Support
Lake County Board of Supervisors (sponsor)
American Federation of State, County and Municipal Employees
(AFSCME)
Lake County Land Trust
Habematolel of Upper Lake Tribe
Hamilton City Community Services District
Hamilton City Citizens In Action
Hamilton City Fire Protection District
Lakeport Regional Chamber of Commerce
Reclamation District 2140
Sierra Club Lake Group
The Nature Conservancy
West Lake Resource Conservation District
Opposition :None submitted
Analysis Prepared by : Alf W. Brandt/ W., P. & W. / (916)
319-2096