SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Henry Stern, Chair

2019 - 2020 Regular

Bill No: AB 1958 Hearing Date: August 5, 2020

Subject: State Plan of Flood Control: facilities

BACKGROUND AND EXISTING LAW

Existing law:

1. Establishes the Central Valley Flood Protection Board (CVFPB) and authorizes it to engage in various flood control activities along the Sacramento River, the San Joaquin River, their tributaries, and related areas.
2. Defines “Facilities of the State Plan of Flood Control” as the levees, weirs, channels, and other features of the federally and state-authorized flood control facilities located in the Sacramento River and San Joaquin River drainage basin for which the CVFPB or the Department of Water Resources (DWR) has given the assurances of nonfederal cooperation to the United States required for the project, and specific units or portions of works of the Sacramento River Flood Control Project. (Public Resources Code (PRC) §5096.805(j))
3. Requires the CVFPB, in Article 7, Chapter 3, Part 4, Division 5, of the Water Code, to approve every plan of reclamation, flood control, drainage, improvement, dredging or work, that includes or contemplates the construction, enlargement, revetment or alteration of any levee, embankment, canal or other excavation in the bed of or along or near the banks of the Sacramento or San Joaquin Rivers 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, before construction is commenced. (Water Code (WC) §§ 8710 et seq.)
   1. Specifically, and among other things, it is unlawful to cut or alter any levee along a river or by-pass at specific locations identified in Article 7, nor any levee forming part of any of the plans of flood control, without permission of the CVFPB.
   2. Any person who does any act contrary to or in violation of any of these provisions is guilty of a misdemeanor.

PROPOSED LAW

This bill would:

1. Declare that the facilities of the State Plan of Flood Control are critical public infrastructure necessary for the protection of life, property, and the economy.
2. In addition to cutting or altering a levee, add to the list of prohibited actions concealing, defacing, destroying, modifying, or physically or visually obstructing any levee.
3. Authorize the CVFPB, its designee, or a local agency that maintains the levee or facility, to inspect and move any physical or visual obstructions placed or alterations made on any of the above-specified levees or facilities, including, but not limited to, any and all associated rights of way.
4. State that it is the intent of the Legislature in enacting this section to ensure the protection of critical public safety infrastructure for the prosperity and benefit of all.

Further, it is not the intent of the Legislature for the enforcement of a violation of this section to result in the destruction or possession of personal property.

1. Include an urgency clause, the urgency being because facilities of the State Plan of Flood Control are critical public safety infrastructure necessary for the protection of life, property, and the economy, it is necessary for this act to take effect immediately.

ARGUMENTS IN SUPPORT

According to the author, “There are approximately 1,600 miles of State Plan of Flood Control levees in the Sacramento-San Joaquin river systems that protect approximately 1.3 million people and $80 billion of infrastructure and other assets. As engineered structures designed to prevent flooding, levees require regular operation and maintenance against erosion and other threats. Last year, media reports highlighted a new threat to the levee system, the increasing issue of unauthorized levees excavations which in some cases result in significant damage. The unauthorized excavations are a threat to the integrity and stability of the levee system that protect large areas of Sacramento from flooding.”

“AB 1958 declares the levee system as critical infrastructure and strengthens protections against unauthorized excavations, cuts, alterations, or destruction of the levee system in order to protect against premature levee failure.”

ARGUMENTS IN OPPOSITION

According to Housing California and the Corporation for Supportive Housing, “AB 1958 would allow for local law enforcement to arrest and incarcerate people experiencing homelessness living near river levees. AB 1958 also permits the State Flood Control Plan and local authorities to remove people’s belongings by allowing authorities to remove “physical obstructions” from levees. While we appreciate the public safety issues related to levees, as the 9th Circuit ruled in Lavan v. City of Los Angeles, 693 F. 3d 1022 (2012), the personal property of persons is protected by constitutional law and state statutes and must be accorded due process protections.. People experiencing homelessness are left with few options but to occupy these spaces because of local, state, and federal failures to solve homelessness. Housing California and CSH strongly oppose any measures which, with or without intent, criminalizes homelessness. These measures drive our most vulnerable residents further into the shadows, holding them back from achieving stability and security, and making it harder for them to get housed. In fact, people arrested for quality of life crimes often cannot access housing because of their records and sometimes debt that balloons because of their inability to pay. We must pursue policies that recognize that homelessness is a failure of public policy decades in the making, not of the people experiencing homelessness. The solution is providing people experiencing homelessness is housing and services, not treating these individuals and families as criminals.”

COMMENTS

Mostly Focused On Homeless Campers. Last year there were news reports of homeless camps on Sacramento-area levees carved into the sides of levees, which protect thousands of homes from flooding. Understandably, these stories raised concerns about levee integrity and contributed to the gutting-and-amending of AB 137 (Cooper) in June 2019, turning it into a bill similar to this bill. (AB 137 is discussed further below).

Homeless Encampments Can Make Levee Inspection Challenging. Levee inspection consist large of a visual inspection. In between flood seasons, inspectors are looking for structural defects, ranging from rodent holes to areas of major sloughing. During the flood season and especially during high flow periods, levee patrols are on the lookout, often hourly, for signs of water flowing under or through levees, such as boils, and other signs of levee instability.

Tarps, tents, and other material used to protect a homeless camp from the elements can significantly impair the inspectors’ ability to properly inspect levees and identify defects in a timely manner.

Homeless Encampments Can Affect Integrity Of Levees. The news accounts last year often included photos or video of camps where they had carved deeply into the levees, clearly diminishing the performance level of the levee.

On The Other Hand, Where Would You Have Them Go? Almost by definition, the homeless campers have few good options. Areas around levees are often attractive camping spots as they can be relatively out of the way, provide some protection against the elements, are dog and other pet friendly, etc., attributes not readily available elsewhere.

Prior Bill. This bill is nearly identical to last year’s AB 137 (Cooper). That bill passed this committee 8-0-1. When heard in this committee, there was no opposition to the bill. Subsequently, that bill was held on suspense by the Senate Appropriations Committee.

The principle differences between AB 137 and this bill are that this bill:

• Doesn’t prohibit the use or occupation of levees or other facilities of the State Plan of Flood Control.
• Authorizes the moving of any physical or visual obstructions placed or alterations made on any levee or facility of the State Plan of Flood Control, but not the removal of such obstructions as would have been authorized under AB 137.
• Adds the language that it is not the intent of the Legislature for the enforcement of a violation of this section to result in the destruction or possession of personal property.
• Does not authorize any peace officer to enforce the provisions of this article in any place in the state to which the peace officer’s authority extends, as would have been authorized under AB 137.

Do All These Prohibited Actions Need To Be Misdemeanors? It might make sense to make altering the levee in any form that potentially affects the physical integrity of the levee a misdemeanor. But simply having a visual obstruction, especially if willingly addressed with reasonable notice? It is not clear that such a violation rises to that of a misdemeanor.

Notice. It is quite likely that many, if not all, of those camping along levees would be unaware that they would need to allow inspectors to visually inspect levees. Giving those camping on or along levees sufficient and timely notice that inspectors were going to need reasonable access to visually inspect levees would seem appropriate.

The urgency of access for inspection changes over the year. The need for access during the flood season [defined in regulation for each regulated river and stream (23 CCR § 112)] is more urgent than outside of the flood season, and even more urgent during high flow periods and flood fights. The concept of sufficient and timely notice ought to take that into consideration.

Preservation Of Property. Often, a camp encompasses all of a homeless person’s possessions. Loss of or damage to such property can be devastating to the owner. This bill merely states that “it is not the intent of the Legislature for the enforcement of a violation of this section to result in the destruction or possession of personal property.” A stronger statement would be require preservation of such property and to prohibit the damage, destruction, or permanent confiscation of such property.

How To Resolve These Issues? Housing California and CSH have proposed the following amendments:

• Eliminate adding as misdemeanors “concealing” and “physically obstructing” and “visually obstructing” levies;
• Require a 72-hour notice of an inspector’s intent to cite, arrest, or move possessions pursuant to Section 8712, unless immediate safety is at risk (with a narrow definition of immediate risk to safety); and
• Add language that protects people’s due process and property rights by adding, “If property must be moved to inspect or repair a levee, that property must be preserved, stored, and made easily accessible to the owner, as closely to the site as possible, consistent with Civil Code 20180.10.”

SUGGESTED AMENDMENTS

All three amendments suggested by Housing California and CSH.

SUPPORT

Association of California Water Agencies (ACWA)

California Building Industry Association

California Central Valley Flood Control Association

California Chamber of Commerce

California Special Districts Association

City of Sacramento

Northern California Water Association

Rural County Representatives of California

Sacramento Area Flood Control Agency

OPPOSITION

American Civil Liberties Union/northern California/southern California/san Diego and Imperial Counties

California Attorneys for Criminal Justice

Corporation for Supportive Housing

Housing California

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 1958

Author:(Cooper and McCarty)

As Amended Ver:June 3, 2020

2/3 vote. Urgency

SUMMARY:

This bill expands the prohibition on altering levees to include, for example, obstruction.

Major Provisions

1. Expands the prohibition on cutting or altering specific levees to a prohibition on concealing, defacing, destroying, modifying, cutting, altering, or physically or visually obstructing any levee forming part of any flood control plans adopted by the Central Valley Flood Protection Board (CVFPB) or any other facility of the State Plan of Flood Control (SPFC) without permission of the CVFPB;
2. Authorizes the CVFPB, its designee, or a local agency that maintains the levee or facility, to inspect and move physical or visual obstructions placed on specified levees or bypasses;
3. Declares that it is the intent of the Legislature to protect critical public safety infrastructure, and not for the enforcement of these provisions to result in the destruction or possession of personal property; and
4. Provides for an urgency clause, stating that the facilities of the SPFC are critical public safety infrastructure necessary for the protection of life, property, and the economy.

COMMENTS:

Levees Require Maintenance. As engineered structures designed to prevent flooding, levees require regular maintenance against erosion and other threats, including earthquakes, sea level rise, and water seepage. Local maintaining agencies (LMAs), which maintain levees within the SPFC, have encountered increasing instances of swaths of levee being removed, leaving deep trenches on the levees. The unauthorized levee alterations threaten the integrity of the levee structures that protect large areas of Sacramento from flooding and result in costly unbudgeted repairs for LMAs. Last year, one LMA repaired 30 unauthorized cuts into the levee system.

Liability Concerns – Paterno vs. State of California (1999). In 2003, a state appellate court found the state responsible for a SPFC levee failure along the Yuba River, thereby establishing a new standard for the state's flood liability for the SPFC. The 2003 decision in the Paterno v. California case found that the state had failed to properly maintain the Linda Levee (located south of Marysville) and therefore was liable for resulting flood damage when it failed in 1986. Although the levee was both originally constructed and maintained at the time by local entities and not the state, the court found that the state undertook liability when it assumed control of the SPFC in the 1950s. Specifically, courts found that the state "had ample opportunity to examine" and repair the levee. The state eventually paid a $464 million settlement to the nearly 3,000 plaintiffs. The Paterno decision's precedent makes it possible that the state could ultimately be held responsible for the structural integrity of all SPFC facilities.

Implications for California's Homeless Population. The provisions of this bill would predominantly, though not exclusively, affect homeless individuals. In 2018, the Ninth Circuit Court of Appeals stated in Martin v. City of Boise that a local government could not criminalize homeless people for sleeping on public property in the absence of alternative shelter. One judge from the Martin v. City of Boise ruling noted: "Even where shelter is available, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible." This bill would apply specifically to flood infrastructure, but would expand the range of levee-related actions that could be treated as misdemeanors.

This bill would authorize LMAs to move – but not remove – flood infrastructure obstructions, which would include personal belongings. In 2012, the Ninth Circuit Court of Appeals stated in Lavan v. City of Los Angeles that it is unconstitutional for the government to seize and summarily destroy unabandoned, but momentarily unattended, personal property. Enforcement of the provisions of this bill would require caution to balance the need for flood protection with the rights of homeless individuals.

According to the Author:

There are approximately 1,600 miles of SPFC levees in the Sacramento-San Joaquin river systems that protect approximately 1.3 million people and $80 billion of infrastructure and other assets. As engineered structures designed to prevent flooding, levees require regular operation and maintenance against erosion and other threats. Last year, media reports highlighted a new threat to the levee system, the increasing issue of unauthorized levee excavations which in some cases result in significant damage. The unauthorized excavations are a threat to the integrity and stability of the levee system as critical infrastructure and strengthens protections against unauthorized excavations, cuts, alterations, or destruction of the levee system in order to protect against premature levee failure.

Arguments in Support:

Those in support argue that this bill will address growing concerns regarding excavation on levees in the Sacramento area by the homeless population. They argue that local managers of the levee system have begun to find serious detrimental excavation along the levee system, much of which is often hidden underneath encampments. They assert that excavation and alteration of the levees compromises their durability and strength, leaving the potential for catastrophic flooding when waters rise. This bill, they argue, provides local law enforcement and others the ability to inspect and repair the levee system to address threats to our critical flood infrastructure.

Arguments in Opposition:

Those in opposition argue that this bill would disproportionately impact the homeless and further criminalize homelessness, and that changing the word "remove" to "move" is inadequate to ensure that the belongings of homeless persons will not be moved, without notice, in such a way as to make it difficult to impossible for the owners to get their property back. Opponents argue that the state should instead focus on increased homeless services and housing. In an Oppose Unless Amended letter, opponents request the following amendments: permitting use of law enforcement only where levee obstruction poses a public safety risk, allowing 72 hours' notice when immediate safety is not at risk, prohibiting confiscation of belongings, and requiring law enforcement officers to be accompanied by a local homeless service provider. Opponents claim that the amendments taken in the Assembly Appropriations Committee are not sufficient.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, the provisions of this bill would have the following fiscal effects:

1. Workload cost pressures of an unknown amount to the trial courts to adjudicate charges brought against defendants who alter or obstruct any levee as prescribed by this measure. While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources.
2. Potentially significant cost savings of an unknown amount from reduced future state liability resulting from levee failure.

VOTES:

ASM WATER, PARKS, AND WILDLIFE: 13-0-1

YES: Eduardo Garcia, Megan Dahle, Bigelow, Flora, Chu, Friedman, Cristina Garcia, Gloria, Levine, Mathis, Blanca Rubio, Salas, Wood

ABS, ABST OR NV: Kalra

ASM APPROPRIATIONS: 18-0-0

YES: Gonzalez, Bigelow, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Megan Dahle, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas, Voepel

UPDATED:

VERSION: June 3, 2020

CONSULTANT: May Dobosiewicz / W., P., & W. / (916) 319-2096 FN: 0002950

Date of Hearing: June 2, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1958

Author:(Cooper) – As Introduced Ver:January 17, 2020

Urgency: Yes State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This urgency bill expands the prohibition on altering levees and defines certain facilities as critical public safety infrastructure. Specifically, this bill:

1. Expands the prohibition on cutting or altering specific levees to a prohibition on concealing, defacing, destroying, modifying, using, occupying, cutting, altering, or physically or visually obstructing any levee forming part of any of the plans of flood control adopted by this part or by the Central Valley Flood Protection Board (flood board), or any other facility of the State Plan of Flood Control without permission of the flood board.
2. Authorizes the flood board, its designee, or a local agency that maintains the levee or facility, to inspect and remove any physical or visual obstructions placed or alterations made on any levee along a river or bypass at any of the places, any levee forming part of any of the plans of flood control adopted by this part or by the flood board, or any other facility of the State Plan of Flood Control (state plan).
3. Authorizes a peace officer, as defined, to enforce the provisions of this bill in any place in the state to which the peace officer’s authority extends.

FISCAL EFFECT:

1. Workload cost pressures of an unknown amount to the trial courts to adjudicate charges brought against defendants who alter or obstruct any levee as proscribed by this measure.

While the superior courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the GF to fund additional staff and resources.

1. Potentially significant cost savings of an unknown amount from reduced future state liability resulting from levee failure.

COMMENTS:

1. Purpose. According to the author:

There are approximately 1,600 miles of State Plan of Flood Control levees in the Sacramento-San Joaquin river systems that protect approximately 1.3 million people and $80 billion of infrastructure and other assets. As engineered structures designed to prevent flooding, levees require regular operation and maintenance against erosion and other threats. Last year, media reports highlighted a new threat to the levee system, the increasing issue of unauthorized levees excavations which in some cases result in significant damage. The unauthorized excavations are a threat to the integrity and stability of the levee system that protect large areas of Sacramento from flooding.

AB 1958 declares the levee system as critical infrastructure and strengthens protections against unauthorized excavations, cuts, alterations, or destruction of the levee system in order to protect against premature levee failure.

1. Public Safety and State Liability. Local maintaining agencies (LMAs) are local agencies maintaining levees within the state plan. These LMAs frequently encounter large swaths of levee being removed leaving deep trenches on the side of the levees. The unauthorized alteration of the levee slope threatens not only the integrity of the engineered levee structure but also results in costly unbudgeted repairs for the LMAs. Last year alone, one LMA repaired 30 unauthorized cuts into the levee system.

In 2003, a state appellate court found the state responsible for a state plan levee failure along the Yuba River, thereby establishing a new standard for the state’s flood liability. The 2003 decision in the Paterno v. California case found the state failed to properly maintain the Linda Levee (located south of Marysville) and therefore was liable for resulting flood damage when it failed in 1986. Although the levee was both originally constructed and maintained at the time by local entities—not the state—and reportedly had never met engineering standards, the court found the state undertook liability when it assumed control of the levees in the 1950s.

Specifically, courts found the state “had ample opportunity to examine” and repair the levee. The state eventually paid a $464 million settlement to the nearly 3,000 plaintiffs. The Paterno decision’s precedent makes it possible that the state could ultimately be held responsible for the structural integrity of all State Plan Flood Control facilities.

1. Balancing Public Safety with the Proper Treatment of the Unhoused. Civil Justice and Housing Advocates expressed concerns regarding this bill and the potential to criminalize homelessness and, by expanding the misdemeanor, incarcerate people living in encampments. Other concerns have been raised about unlawfully removing or destroying personal property.

To address these concerns, the author and committee are suggesting the following amendments:

1. Delete the misdemeanor crime.
2. Delete the provision that authorizes a peace officer to enforce the provisions of this bill in any place in the state to which the peace officer’s authority extends.
3. Revise the language so a member of the flood board or local agency may move, rather than remove, specified obstructions.
4. Add the following intent language:

It is the intent of the Legislature in enacting this section to ensure the protection of critical public safety infrastructure for the prosperity and benefit of all.  It is not the intent of the Legislature for the enforcement of a violation of this section to result in the destruction or possession of personal property.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: May 14, 2020

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Eduardo Garcia, Chair

ABPCA Bill Id:AB 1958 (

Author:Cooper) – As Introduced Ver:January 17, 2020

SUBJECT: State Plan of Flood Control: facilities

SUMMARY: Expands the prohibition on altering levees and defines certain facilities as critical public safety infrastructure. Specifically, this bill:

1. Expands the prohibition on cutting or altering specific levees to a prohibition on concealing, defacing, destroying, modifying, using, occupying, cutting, altering, or physically or visually obstructing any levee forming part of any of the plans of flood control adopted by this part or by the Central Valley Flood Protection Board (CVFPB), or any other facility of the State Plan of Flood Control without permission of the CVFPB.
2. Authorizes the board, its designee, or a local agency that maintains the levee or facility, to inspect and remove any physical or visual obstructions placed or alterations made on any levee along a river or bypass at any of the places, any levee forming part of any of the plans of flood control adopted by this part or by the CVFPB, or any other facility of the State Plan of Flood Control (SPFC).
3. Authorizes a peace officer, as defined, to enforce the provisions of this bill in any place in the state to which the peace officer’s authority extends.
4. Provides for an urgency clause under the meaning of Article IV of the California Constitution by stating the necessity of the bill, and defining that, facilities of the State Plan of Flood Control are critical public safety infrastructure necessary for the protection of life, property, and the economy.
   

EXISTING LAW:

1. Establishes the CVFPB and authorizes the board to engage in various flood control activities along the Sacramento River, the San Joaquin River, their tributaries, and related areas. (Water Code §8520 et. seq.)
2. Defines “Facilities of the State Plan of Flood Control” as the levees, weirs, channels, and other features of the federally and state-authorized flood control facilities located in the Sacramento River and San Joaquin River drainage basin for which the board or the Department of Water Resources (DWR) has given the assurances of nonfederal cooperation to the United States required for the project, and specific units or portions of works of the Sacramento River Flood Control Project. [Public Resources Code §5096.805(j)]
3. Requires the board, in Article 7, Chapter 3, Part 4, Division 5 of the Water Code, to approve every plan of reclamation, flood control, drainage, improvement, dredging or work that includes or contemplates the construction, enlargement, revetment or alteration of any levee, embankment, canal, or other excavation in the bed of, or along or near the banks of, the Sacramento or San Joaquin Rivers 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, before construction is commenced. (Water Code §8710 et seq.)
   1. Specifically, and among other things, it is unlawful to cut or alter any levee along a river or bypass at specific locations identified in Article 7, nor any levee forming part of any of the plans of flood control, without permission of the CVFPB.
   2. Any person who does any act contrary to or in violation of any of these provisions is guilty of a misdemeanor.

FISCAL EFFECT: Unknown. This bill is keyed fiscal.

COMMENTS:

Author’s Statement:

There are approximately 1,600 miles of State Plan of Flood Control (SPFC) levees in the Sacramento-San Joaquin river systems that protect approximately 1.3 million people and $80 billion of infrastructure and other assets. As engineered structures designed to prevent flooding, levees require regular operation and maintenance against erosion and other threats. Last year, media reports highlighted a new threat to the levee system, the increasing issue of unauthorized levees excavations which in some cases result in significant damage. The unauthorized excavations are a threat to the integrity and stability of the levee system that protect large areas of Sacramento from flooding.

AB 1958 declares the levee system as critical infrastructure and strengthens protections against unauthorized excavations, cuts, alterations, or destruction of the levee system in order to protect against premature levee failure.

Background:

The CVFPB and other local flood agencies that maintain the levees have been meeting regularly to discuss emerging concerns about levee integrity. As engineered structures designed to prevent flooding, levees require regular operation and maintenance against erosion and other threats, including major earthquakes, rising sea levels due to climate change, and water seepage.

Last year, media reports highlighted a new threat to the levee system, the increasing issue of unauthorized excavations on the levees which in some cases result in significant damage. These excavations are a threat to the integrity and stability of the levee system that protect large areas of Sacramento from flooding.

Local maintaining agencies (LMAs) are local agencies maintaining levees within the SPFC. These LMAs are frequently encountering large swaths of levee being removed leaving deep trenches on the side of the levees. The unauthorized alteration of the levee slope threatens not only the integrity of the engineered levee structure but also results in costly unbudgeted repairs for the LMAs. Last year alone, one LMA repaired 30 unauthorized cuts into the levee system.

According to the Senate Natural Resources Committee in its analysis of this bill, existing authorities are insufficient to address this situation. The authorities granted to the board were in anticipation of such things as unauthorized fences across levees, pipes running through levees, etc. The need for law enforcement actions to clear an encampment was not anticipated when the flood statutes were most recently revised in 2007.

Liability Concerns—Paterno vs. State of California (1999). The 1999 Paterno Court Decision established state liability for the SPFC. In 2003, a state appellate court found the state responsible for a SPFC levee failure along the Yuba River, thereby establishing a new standard for the state’s flood liability. The 2003 decision in the Paterno v. California case found that the state had failed to properly maintain the Linda Levee (located south of Marysville) and therefore was liable for resulting flood damage when it failed in 1986. Although the levee was both originally constructed and maintained at the time by local entities—not the state—and reportedly had never met engineering standards, the court found that the state undertook liability when it assumed control of the SPFC in the 1950s. Specifically, courts found that the state “had ample opportunity to examine” and repair the levee. The state eventually paid a $464 million settlement to the nearly 3,000 plaintiffs. The Paterno decision’s precedent makes it possible that the state could ultimately be held responsible for the structural integrity of all SPFC facilities.

Prior and Related Legislation:

AB 137 (Cooper, 2019) was substantially similar and was held in Senate Appropriations Committee.

2007 Flood Package: AB 5 (Wolk, Stat. 2007, Ch. 366), AB 70 (Jones, Stat. 2007, Ch. 367), AB 156 (Laird, Stat. 2007, Ch. 368), AB 162 (Wolk, Stat. 2007, Ch. 369), SB 5 (Machado, Stat. 2007, Ch. 364), SB 17 (Florez, Stat. 2007, Ch. 365)

Supporting Arguments: Those in support argue that this bill will address growing concerns regarding excavation on levees in the Sacramento area by the homeless population. They argue that local managers of the levee system have begun to find serious detrimental excavation along the levee system, much of which is often hidden underneath encampments. They assert that excavation and alteration of the levees compromises their durability and strength, leaving the potential for catastrophic flooding when waters rise. This bill, they argue, provides local law enforcement and others the ability to inspect and repair the levee system to address threats to our critical flood infrastructure.

Opposing Arguments: None on file

REGISTERED SUPPORT / OPPOSITION:

Support

Association of California Water Agencies (ACWA)
California Building Industry Association
California Central Valley Flood Control Association
California Chamber of Commerce
California Special Districts Association
City of Sacramento
Rural County Representatives of California
Sacramento Area Flood Control Agency

Opposition

None on file

Analysis Prepared by: May Dobosiewicz / W., P., & W. / (916) 319-2096