SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 3226 (McCarty) - Flood protection: West Sacramento flood risk reduction project: Maintenance Area 4

Bill Summary:

This bill would adopt and approve the West Sacramento Project for flood risk reduction along the Yolo Bypass, Sacramento Bypass, and Sacramento River.

Fiscal Impact:

• Unknown, potentially significant cost pressure to fund the flood risk reduction project (General Fund or bond funds).

Background:

The Legislature has authorized funding for numerous flood control projects throughout the Sacramento and San Joaquin River watersheds. 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.

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 Sacramento River and San Joaquin River federal-state flood control projects 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 (DWR) to develop, and the Central Valley Flood Protection Board (CVFPB) 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 included provisions intended to limit state liability to facilities identified in the State Plan of Flood Control. These laws did not specifically address the facilities described in this bill.

Proposed Law:

This bill would:

1. Adopt and approve the West Sacramento Project for flood risk reduction along the Yolo Bypass, Sacramento Bypass, and Sacramento River, which was adopted and approved by a specific act of the United States Congress in 2016, at an estimated cost to the state of the sum that may be appropriated by the Legislature for state participation, upon the recommendation and advice of the department or the board.
2. Redefine the boundaries of RD 900 to also include the parcels that compose Maintenance Area 4. The bill would also authorize Maintenance Area 4 to be dissolved only upon the execution of the assurance agreement and assumption of project levee maintenance responsibilities by the district, or by a member agency that is a signatory to the assurance agreement, for the state maintenance area.
3. Make numerous findings and declarations regarding the background and the need for this bill.

Staff Comments:

The total cost of the West Sacramento project is estimated at $1.02 billion (all the repairs approved by the United States Congress in 2016). As part of existing urban flood program efforts, the state and West Sacramento Area Flood Control Agency have already invested a combined $210 million ($130 million from State) for the most critical repair sections. The remaining state cost share is estimated to be approximately $110 million. This bill would create a pressure to fund this project.

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SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Henry Stern, Chair

2019 - 2020 Regular

Bill No: AB Hearing Date: August 5, 2020

Subject: Flood protection: West Sacramento flood risk reduction project: Maintenance Area 4

BACKGROUND AND EXISTING LAW

Existing law:

1. Water Code (WC) §12645 provides background to state funding of flood projects in the Sacramento and San Joaquin River watersheds:
   1. In 1911, the Legislature adopted a flood control plan for the Sacramento Valley, as proposed by the federal California Debris Commission, and created the Reclamation Board to regulate levees and other encroachments, and to review and approve flood control plans for the Sacramento River and its tributaries. The state’s adoption of a valley wide flood management plan was intended to create a unified plan of flood control and to reclaim lands from overflow. 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. The federal government transferred completed portions of the Sacramento River Flood Control Project to the state as portions were completed, and the state, in turn, passed responsibility for operation and maintenance to local districts organized to provide flood control within their boundaries.
   2. The state and federal governments have 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 federal “project levees” in both the Sacramento and San Joaquin River watersheds by modifying existing levees. The federal government transferred completed portions of the Sacramento River Flood Control Project to the state, as portions were completed, which in turn passed responsibility for operation and maintenance to local reclamation districts.
   3. In 2003, a state Court of Appeal in Paterno v. State of California (2003) 113 Cal.App.4th 998 (Paterno), held the state liable, in a claim for inverse condemnation, for failure of a levee that was operated and maintained by a local levee maintenance district. In settlement of that litigation, the state’s liability was substantial because homes and a shopping center were built behind the levee and suffered from the resulting flood.
   4. The Legislature has authorized funding for numerous flood control projects throughout the Sacramento and San Joaquin River watersheds. 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.
   5. 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 Sacramento River and San Joaquin River federal-state flood control projects 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 (DWR) to develop, and the Central Valley Flood Protection Board (CVFPB) 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 included provisions intended to limit state liability to facilities identified in the State Plan of Flood Control. These laws did not specifically address the facilities described in this article.
2. WC §12670.2 was enacted in 1993. That section did two things:
   1. Adopted and authorized a project for flood protection on the Sacramento River for the City of West Sacramento substantially in accordance with the recommendations of the Chief of Engineers, in the report “Sacramento Metro Area, California” dated June 29, 1992, and as adopted and authorized by the act of Congress approved October 31, 1992 (Public Law 102-580), at an estimated cost to the state of the sum that may be appropriated by the Legislature for state participation, upon the recommendation and advice of the department or the Reclamation Board.
   2. Authorized DWR and what is now the CVFPB to pay 50 percent of the nonfederal capital costs of the recreation and fish and wildlife enhancement features of the project.
3. The Statutes of 1911, Chapter 100 created and established the initial boundaries of Reclamation District Number 900 (RD 900). Under existing law, it is the responsibility, liability, and duty of the district to maintain and operate the works of the project within its boundaries or jurisdiction, except as specified. RD 900 includes most of the City of West Sacramento, except the northern parts of the city such as the neighborhood of Broderick.
4. Existing law authorizes both the creation and dissolution of maintenance areas. Such areas are required to operate and maintain specific flood management facilities. There are currently 10 maintenance areas in the Sacramento Valley. Maintenance Area #4 includes parts of northern of the City of West Sacramento, including the neighborhood of Broderick.

PROPOSED LAW

This bill would:

1. Adopt and approve the West Sacramento Project for flood risk reduction along the Yolo Bypass, Sacramento Bypass, and Sacramento River, which was adopted and approved by a specific act of the United States Congress in 2016, at an estimated cost to the state of the sum that may be appropriated by the Legislature for state participation, upon the recommendation and advice of the department or the board.
2. Redefine the boundaries of RD 900 to also include the parcels that compose Maintenance Area 4. The bill would also authorize Maintenance Area 4 to be dissolved only upon the execution of the assurance agreement and assumption of project levee maintenance responsibilities by the district, or by a member agency that is a signatory to the assurance agreement, for the state maintenance area.
3. Make numerous findings and declarations regarding the background and the need for this bill.

ARGUMENTS IN SUPPORT

According to the author, “The Sacramento Region is rated as having the second-highest risk of major flooding among all American cities. In order to protect residents and the surrounding homes, businesses, and other critical infrastructure from flooding, AB 3226 would authorize the State to make funds available, to plan, engineer, design and construct the West Sacramento Flood Control Project, and would ensure coordination in these phases of building. The bill opens the door for the State to be a funding partner in protecting the Sacramento Region from floods.”

ARGUMENTS IN OPPOSITION: None received

COMMENTS

Why Is This Bill Urgent? The City of West Sacramento asserts, “If the bill is shelved this year, the West Sacramento Flood Control Project, and by extension the Sacramento River Flood Control System, will be at a significant disadvantage in both moving the federally authorized flood project forward and in coordinating flood control and maintenance activities in the West Sacramento area – a situation which would not be rectified until January 2022 at the earliest if this bill is dropped.”

“The next increment of the Project will be ready for construction in the spring of 2021 and the President’s FY 2021 budget proposal would fully fund preconstruction, engineering, and design (PED). This has positioned the Project well to receive a New Start designation and full funding for construction. AB 3226 would solidify the state’s commitment to this Project and therefore increase its competitiveness with other projects seeking New Start designation. As such, delaying this legislation would harm the Project’s chances of securing federal funds during the critical year ahead.”

“In addition, state law (SB 5, 2007) requires completion of this 200-year event flood control protection project by 2025. Further delaying the authorization of the Project in state law may compromise WSAFCA’s ability to meet this deadline.”

“Finally, Yolo LAFCo’s recommendation in summer 2019 that all irrigation and flood control systems in West Sacramento be unified under one umbrella will not be complete until MA 4 is included in RD 900. Since AB 3226 merely authorizes that process to begin, the residents of West Sacramento’s economically disadvantaged Broderick neighborhood would not have equal representation on these matters until late 2022 – three years after the Yolo LAFCo’s recommendation – if AB 3226 is shelved until next session.”

SUGGESTED AMENDMENTS: None

SUPPORT

California Central Valley Flood Control Association

California State Association of Counties

City of West Sacramento

County of Yolo

Reclamation District 900

Regional Water Authority

Rural County Representatives of California

OPPOSITION

None Received

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(Without Reference to File)

ASSEMBLY THIRD READING

ATR Bill Id:AB 3226

Author:(McCarty)

As Amended Ver:June 4, 2020

Majority vote

SUMMARY:

Updates a specific flood control project authorization for the City of West Sacramento.

Major Provisions

This bill approves and authorizes the state, upon an appropriation by the Legislature, to make funds available to plan, engineer, design, and construct the West Sacramento Flood Control Project to further the Central Valley Flood Protection Plan objective to provide a minimum 200-year level of protection to the City of West Sacramento that was adopted and approved by the United States Congress in 2016.

COMMENTS:

Flood Control. The City of West Sacramento is located in the heart of California's Central Valley near the confluence of the Sacramento and American Rivers. The city is protected from flooding by upstream dams and a system of levees. While these dams and levees provide protection, they are still subject to failure and property in the city remains at risk of flooding. In 2016, the state imposed stricter flood control standards which must be met by 2025. The state may participate in local flood control projects with Legislative approval as long as certain requirements are met and the project has been authorized by Congress. Current law adopts and authorizes federally adopted and approved projects, including projects for flood control along the American and Sacramento Rivers. The projects are authorized at an estimated cost to the state.

Water Infrastructure Improvements for the Nation Act (WIIN Act). Periodically, state law adopting and authorizing specific projects needs to be updated to conform to the most recent federal legislation. In the case of the City of West Sacramento's flood control efforts, the current authorization in state law is for a previous project approved by Congress in 1992. This bill would update the necessary authorizations consistent with federal approvals in the 2016 Water Infrastructure Improvements for the Nation (WIIN) Act.

The WIIN Act specifies a cost-share of 65% federal, 35% non-federal, with costs of $788,861,000 federal and $424,772,000 non-federal for the West Sacramento flood control project. The non-federal cost is further cost-shared between the state and the West Sacramento Area Flood Control Authority (WSAFCA).

According to the Author:

The Sacramento Region is rated as having the second-highest risk of major flooding among all American cities. In order to protect residents and the surrounding homes, businesses, and other critical infrastructure from flooding, AB 3226 would authorize the State to make funds available to plan, engineer, design, and construct the West Sacramento Flood Control Project. The bill opens the door for the State to be a funding partner in protecting the Sacramento Region from floods.

Arguments in Support:

Those in support argue that the West Sacramento Flood Control Project is critical to ensuring the safety of West Sacramento's residents and is an integral part of the larger Sacramento River Flood Control System. This bill formalizes the state's partnership in the currently authorized project, and in doing so, provides a mechanism to continue to advance the project and achieve the mandated 200-year flood protection requirements.

Arguments in Opposition:

None on file.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, this bill results in costs of approximately $110 million (General Fund or bond funds) over a five-year period or longer to pay the State's obligation of a project estimated to cost $1.02 billion.

VOTES:

ASM WATER, PARKS, AND WILDLIFE: 14-0-0

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

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 4, 2020

CONSULTANT: Keith Cialino / W., P., & W. / (916) 319-2096 FN: 0002937

Date of Hearing: June 2, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 3226

Author:(McCarty) – As Introduced Ver:February 21, 2020

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

SUMMARY:

This bill updates the state’s authorization for flood risk reduction along the Yolo Bypass, Sacramento Bypass and Sacramento River to be consistent with the “West Sacramento Project General Reevaluation Report” adopted by Congress as part of the Water Infrastructure Improvements for the Nation (WIIN) Act of 2016 at an estimated cost that may be appropriated by the Legislature, upon the recommendation of the Department of Water Resources (DWR) or the Central Valley Flood Protection Board. Additionally, this bill:

1. Authorizes the state or the Central Valley Flood Protection Board, upon an appropriation by the Legislature, to provide funding for the project in the absence of federal funding, as specified.
2. Authorizes DWR or the board, upon an appropriation by the Legislature, to fund other flood projects and improvements to achieve state flood risk reduction objectives as defined in the Central Valley Flood Protection Plan for the City of West Sacramento.

FISCAL EFFECT:

Costs of approximately $110 million (GF or bond funds) to pay the states obligation over a five-year period or longer.

The total cost of the updated project is estimated to be approximately $1.02 billion.  The state and the West Sacramento Area Flood Control Agency have already undertaken project work and have spent approximately $210 million ($130 million from the state) as part of the Early Implementation Program/Urban Flood Risk Reduction Program.

COMMENTS:

1. Background and Purpose. Periodically, state law adopting and authorizing specific projects needs to be updated to conform to the most recent federal legislation. In the case of the City of West Sacramento’s flood control project, the current state authorization is for a previous version of the project approved by Congress in 1992. In this case, the state authorization is outdated due to project changes in the WIIN Act in 2016.

The WIIN Act specifies a cost-share of 65% federal and 35% nonfederal. If the local agency complies with the Water Code and program guidelines, the state will reimburse the local entity for 50% to 70% of the nonfederal share (not to exceed specified limits). The reimbursement rate is based on how effectively the project achieves multi-purpose objectives.

The federal authorization changes to this project are in response to more stringent levee requirements, so doing the project as originally authorized is not an option. Therefore not recognizing the latest design of the project would effectively be rejecting the state’s original agreement to share in the cost of improving these levees.

According to the author:

The Sacramento Region is rated as having the second-highest risk of major flooding among all American cities. In order to protect residents and the surrounding homes, businesses, and other critical infrastructure from flooding, AB 3226 would authorize the State to make funds available to plan, engineer, design, and construct the West Sacramento Flood Control Project. The bill opens the door for the State to be a funding partner in protecting the Sacramento Region from floods.

1. Amendments. The author is proposing amendments to delete provisions that authorize the state to provide funding absent federal funding and allow other projects to be funded.

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 3226 (

Author:McCarty) – As Introduced Ver:February 21, 2020

SUBJECT: Yolo County: West Sacramento flood risk reduction project: adoption and authorization

SUMMARY: Updates a specific flood control project authorization for the City of West Sacramento. Specifically, this bill:

1. Approves and authorizes the state, upon an appropriation by the Legislature, to make funds available to plan, engineer, design, and construct a flood control project, as specified, to further the Central Valley Flood Protection Plan objective to provide a minimum 200-year level of protection to the City of West Sacramento that was adopted and approved by the United States Congress in 2016 and is substantially in accordance with a specified 2015 report issued by the Chief of Engineers of the United States Army Corps of Engineers.
2. Authorizes the state or the Central Valley Flood Protection Board (flood board), upon an appropriation by the Legislature, to provide funding for the project in the absence of federal funding for the project, as specified.
3. Authorizes the Department of Water Resources (DWR) or the flood board, upon an appropriation by the Legislature, to fund other flood projects and improvements to achieve state flood risk reduction objectives as defined in the Central Valley Flood Protection Plan for the City of West Sacramento.

EXISTING LAW:

1. Establishes the DWR and the flood board within state government, with duties and authorities related to water supply, flood management, and water conveyance, among others. [Water Code (WAT) § 120; § 8520]
2. Provides for state cooperation with the federal government in the construction of specified flood control projects, and requires flood management projects that receive state financial assistance, as specified, to:
   1. Qualify for federal financial assistance under the requirements applicable to federal water resource development projects and to be federally authorized.
   2. Be cost-effective, as specified.
   3. Be in compliance with federal floodplain management, as specified.
   4. Avoid, minimize, or mitigate impacts to environmental and recreational values.
   5. Include an opportunity to include multipurpose objectives. (WAT § 12582.7)
3. Adopts and authorizes, at an estimated cost to the state of the sum that may be appropriated by the Legislature for state participation upon the recommendation and advice of the DWR or the flood board, a project for flood protection on the Sacramento River for the City of West Sacramento substantially in accordance with recommendations in a specified 1992 report by the Chief of Engineers of the United States Army Corps of Engineers and as adopted and authorized by a specific act of the United States Congress in 1992. (WAT § 12670.2)
4. Adopts and authorizes several federally adopted and approved projects for flood control along the American and Sacramento Rivers. (WAT § 12670.14)

FISCAL EFFECT: Unknown. This bill is keyed fiscal.

COMMENTS:

Author’s Statement:

The Sacramento Region is rated as having the second-highest risk of major flooding among all American cities. In order to protect residents and the surrounding homes, businesses, and other critical infrastructure from flooding, AB 3226 would authorize the State to make funds available to plan, engineer, design, and construct the West Sacramento Flood Control Project. The bill opens the door for the State to be a funding partner in protecting the Sacramento Region from floods.

Background. Flood Control. The City of West Sacramento is located in the heart of California’s Central Valley near the confluence of the Sacramento and American Rivers. The city is protected from flooding by upstream dams and a system of levees. While these dams and levees provide protection, they are still subject to failure and property in the city remains at risk of flooding. In 2016, the state imposed stricter flood control standards which must be met by 2025. The state may participate in local flood control projects with Legislative approval as long as certain requirements are met and the project has been authorized by Congress. Current law adopts and authorizes federally adopted and approved projects, including projects for flood control along the American and Sacramento Rivers. The projects are authorized at an estimated cost to the state.

Water Infrastructure Improvements for the Nation Act (WIIN Act). Periodically, state law adopting and authorizing specific projects needs to be updated to conform to the most recent federal legislation. In the case of the City of West Sacramento’s flood control efforts, the current authorization in state law is for a previous project approved by Congress in 1992. This bill would update the necessary authorizations consistent with federal approvals in the 2016 Water Infrastructure Improvements for the Nation (WIIN) Act.

The WIIN Act specifies a cost-share of 65 percent federal, 35 percent non-federal, with costs of $788,861,000 federal and $424,772,000 non-federal for the West Sacramento flood control project. The non-federal cost is further cost-shared between the state and the West Sacramento Area Flood Control Authority (WSAFCA).

West Sacramento Flood Control Project. The West Sacramento flood control project is the last segment of the Sacramento River Flood Control System to receive construction funding. Approximately $170 million of the non-federal cost has already been funded by Propositions 1E and 84, as well as a portion of sales tax proceeds and a property tax assessment in West Sacramento. Since authorization in the WIIN Act, a design agreement between the USACE, the state, and the WSAFCA was executed in April 2019. The estimated $1.02 billion project has advanced significantly, with a partnership between the WSAFCA and the state investing approximately $170 million in advanced construction on the Southport Levee Improvement Project, the first component of the authorized project. In addition, $400,000 for pre-construction engineering and design for future components, including the Yolo Bypass East Levee Project, was allocated to the project in the USACE Fiscal Year (FY) 2019 Work Plan and $1.472 million was allocated in the USACE FY 2020 Budget and Work Plan to continue these activities. The balance of funding to complete pre-construction engineering and design activities is currently recommended in the FY 2021 President’s Budget.

Prior and Related Legislation.

AB 489 (Stone), Chapter 350, Statutes of 2019, authorizes the state, upon appropriation by the Legislature, to make funds available for a flood control project on the Pajaro River, even in the absence of matching federal funds.

SB 580 (Pan), Chapter 309, Statutes of 2017, revised the state authorization for the project for flood control along the American and Sacramento Rivers, and the Natomas Basin, as modified by a specified report adopted by Congress under the WIIN Act.

SB 144 (Pan), Chapter 674, Statutes of 2015, updated the state authorization for flood control along the American and Sacramento Rivers to match the federal authorization.

SB 276 (Steinberg), Chapter 641, Statutes of 2007, authorized state participation in the Folsom Dam modification project to provide a 200-year level of flood protection on the American River for Sacramento.

AB 1147 (Honda), Chapter 1071, Statutes of 2000, required a flood management project that received state financial assistance, as specified, to meet prescribed requirements prior to state authorization including, but not limited to, mitigation, environmental review, and liability. The bill also adopted and authorized projects in specific regions of the state including the City of Sacramento and Sacramento and Sutter Counties.

Arguments in Support: Those in support argue that the West Sacramento Flood Control Project is critical to ensuring the safety of West Sacramento’s residents and is an integral part of the larger Sacramento River Flood Control System. This bill formalizes the state’s partnership in the currently authorized project, and in doing so, provides a mechanism to continue to advance the project and achieve the mandated 200-year flood protection requirements.

Arguments in Opposition: None on file

REGISTERED SUPPORT / OPPOSITION:

Support

County of Yolo

West Sacramento; City of

Opposition

None on file

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