CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 838

Author:(Eggman)

As Amended Ver:August 11, 2020

Majority vote

SUMMARY:

Extends the date for the Mossdale Tract to reach an urban level of flood protection from 2025 to 2028 thereby prolonging the time period for which California taxpayers may be liable for flood losses occurring in the area.

The Senate Amendments:

Delete the Assembly version of this bill, and instead:

1. Defines the "Mossdale Tract" as the lands within Reclamation District No. 17, along with contiguous urban and urbanizing areas to the east of the tract as would be subject to flooding from the San Joaquin River at an urban level of flood protection.
2. Changes, for the Mossdale Tract, the year by which the area must achieve the urban level of flood protection from 2025 to 2028.
3. Authorizes the Department of Water Resources to require the San Joaquin Area Flood Control Agency to contribute its fair and reasonable share of any property damage caused by a flood to the extent the state's exposure to liability for property damage has been increased by cities or counties unreasonably approving any new development in the Mossdale Tract between the years 2025 and 2028.

COMMENTS:

Existing law requires the state to assume liability for flood damages. Building on California's significant body of case law related to inverse condemnation, in 2003 it was determined that the State of California holds liability for failure of levees if the state fails to have a "reasonable plan" for operating and maintaining the levees in the Sacramento and San Joaquin Valleys. (Paterno v. State of California (2003)114 Cal.App.4th 308.) The court reasoned that the levees were a public improvement, thus placing liability onto the state for any damage that resulted from the improvement, including potential levee failure.

In response to the 2003 Paterno decision and the 2005 levee breaches in the City of New Orleans after Hurricane Katrina, the Legislature approved a package of bills in 2007 to address increasing residential development in Central Valley floodplains adjacent to state levees. While the crux of the legislation focused on flood prevention planning, the legislation also adopted a scheme to ensure that local agencies shared in the liability should development decisions made at the local level result in future flood damages. In keeping with the existing law, the state, generally, assumed liability for flood damages, however, the state forced local agencies to assume liability in the event a local agency unreasonably approved a new development project in a Central Valley floodplain "without appropriately considering significant risks of flooding made known to the approving agency as of the time of approval and without taking reasonable and feasible action to mitigate the potential property damage to the new development resulting from a flood."

Additionally, the 2007 legislation required local agencies to move toward achieving an "urban level" of flood protection for developed areas, essentially achieving protection from a once every 200-year flood event. The law requires "urban level" flood protection to be achieved by 2025. Furthermore, that legislation prohibited development within a flood hazard zone unless 1) the zone had achieved urban level flood protection; 2) the local agency imposes conditions on the development to ensure flood protection; 3) or there has been "adequate progress" on the construction of a flood protection system that will result in the appropriate level of flood protection in urban and non-urbanized areas. In practice, as long as a local agency can ensure that a development falls into one of the above three categories such development is likely to be deemed reasonable and thus liability for flood damage will remain with the state.

The Mossdale Tract and the San Joaquin Area Flood Control Agency. The Mossdale Tract falls in and around the jurisdiction of Reclamation District 17, and is located in San Joaquin County, along the east side of the Delta, just south of the City of Stockton. The Reclamation District 17 levee system consists of about 16.2 miles of federal-state project levees. In 1997, the City of Lathrop annexed the Mossdale Tract and began permitting development within areas falling within the San Joaquin River's floodplain. This development has brought approximately 50,000 residents into the tract since the late 1990's. Since the enactment of the 2007 legislation, the district has been moving to upgrade its levees to meet a 200-year flood standard and achieve an "urban level of flood protection." This effort grew more complex when, in 2017, the Department of Water Resources determined that a as a result of climate change a 200-year flood event on the San Joaquin River would result in the river's flow rate tripling over its non-flood stage level. As a result of this complexity, and apparently the impact of COVID-19, the City of Lathrop and the San Joaquin Area Flood Control Agency (which implements the flood protection plans for the region) are now claiming they will be unable to fully upgrade the levees by the 2025 deadline set forth by the 2007 legislation.

This bill. This measure seeks to provide the Mossdale Tract an individual extension of the 2025 deadline for achieving urban level flood protection to 2028. This extension will enable the City of Lathrop to continue permitting development within the tract without incurring local liability for flood damage, despite the area residing within a flood hazard zone that lacks 200-year flood protection and a flood prevention project that, presumably, is not making "adequate progress" toward achieving such a designation. Finally, this bill shifts any potential local liability for damage to the Mossdale Tract from the City of Lathrop to the San Joaquin Area Flood Control Agency.

Although local decision making may have delayed levee improvements, this bill seeks to extend the state's liability for property within the Mossdale Tract. Several local governments from San Joaquin County have written in support of this measure. Interestingly, several of these governments noted that prior to the San Joaquin Area Flood Control Agency assuming control of the flood prevention work in the county, progress towards meeting the 2025 deadline was "inconsistent." Despite potential issues with providing adequate flood protection to residents, it appears that many local agencies, including the City of Lathrop, forged ahead with permitting development. Only now that the agencies claim to be running low on funding and facing the looming deadline are they asking for the Legislature to approve a special extension to the timelines in existing law. It should be noted that, it appears, no other flood control agency in the state subject to the 2025 deadline has made such a request. Furthermore, ironically, many of the local agencies note that without the additional development fees that would be raised by permitting additional development within the unprotected areas of the Mossdale Tract, the San Joaquin Area Flood Control Agency may not have sufficient funding to complete the project.

Although the responsibility for the delays in providing adequate flood protection to the Mossdale Tract appear to rest at the local government level, by providing these agencies an additional three years to comply with the law, this bill would further extend the state's liability for flood damages in the area, thereby imposing risk on all California taxpayers for any flood damage in the area. As noted, existing law enables development in an area so long as "adequate progress" is being made toward constructing 200-year flood protection. Accordingly, any development approved in the Tract by the City of Lathrop would likely be deemed to have been reasonably approved and thus the responsibility of the state. Notably, not only does this bill enable the City of Lathrop to continue building within the Mossdale Tract, despite a lack of flood protection, but it provides that should any development be deemed unreasonable, thereby transferring liability to the local level, the San Joaquin Area Flood Control Agency would be the responsible party despite all permitting authority remaining fully within the City of Lathrop's control. The Legislature should consider the merits of permitting one local agency to continue permitting development in a known flood zone while simultaneously shifting all liability for potential flood damage to those developments away from that agency and to another local entity that has had no control over the developments.

Enabling unchecked development in natural hazard zones increases the impacts of natural disasters. California law has long recognized local control and local governments frequently object to any proposed state laws that may infringe on their nearly unfettered ability to make all land use, zoning, and development decisions at the local level. Although the state has asserted greater regulation of land use policies related to natural hazards, most notably flood and fire prevention planning, the day-to-day decision making regarding where and how development may occur remains at the local level. Conversely, in the event of a natural disaster like a fire or flood, the state and federal governments (in addition to private insurers) are frequently called upon to provide financial assistance to injured property owners.

The dichotomy between who permits development decisions and who pays for the consequences of poorly conceived land use decisions results in a perverse incentive for local governments to permit development in areas highly prone to natural hazards. Much of California's existing land use law encourages local government to build freely, including in areas vulnerable to natural hazards, and reap the tax revenues of new development knowing there is little risk of legal liability or financial loss should the development fall victim to a disaster. The liability sharing provisions of the 2007 flood prevention legislation were aimed at reversing this incentive for reckless development by local government by forcing local agencies to share some responsibility for losses. To the extent that this bill will eliminate the risks for the City of Lathrop for an additional three years, this measure would not only undermine the liability sharing provisions of the 2007 legislation but actively encourage the City of Lathrop to develop in a flood prone area with the assurances that the General Fund and California taxpayers will be responsible for any harm that may arise from such decisions and not the City of Lathrop.

According to the Author:

AB 838 would allow the San Joaquin Area Flood Control Agency the ability to complete their 200-year flood event flood control system project by extending the deadline from 2025 to 2028. This one-time extension is required because the devastating impacts the San Joaquin River faces as a result of climate change, and the economic crisis created by the COVID-19 pandemic have made it highly unlikely that the flood control project will meet the 2025 deadline; thereby endangering the life and property within the Mossdale Tract. Without the extension, and the opportunity to raise funds created by the extension, the project is not likely to be completed for decades.

Arguments in Support:

In support of this bill the City of Lathrop notes the challenges the updated Department of Water Resources flood projections and COVID-19 have had on levee improvement projects. The City states:

To address these challenges the San Joaquin Area Flood Control Agency must obtain a one-time extension of the 2025 deadline set forth in SB 5. Without this extension it is very likely that the San Joaquin Area Flood Control Agency and other local agencies will never have the funding to complete a 200-year project, thereby assuring eventual physical harm to the people living in the Mossdale Tract.

Arguments in Opposition:

None on file

FISCAL COMMENTS:

None

VOTES:

ASM AGRICULTURE: Vote not relevant

YES:

ASM APPROPRIATIONS: Vote not relevant

YES:

ABS, ABST OR NV:

ASSEMBLY FLOOR: Vote not relevant

YES:

ABS, ABST OR NV:

SENATE FLOOR: 30-0-10

YES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener

ABS, ABST OR NV: Bates, Borgeas, Chang, Dahle, Grove, Jones, Melendez, Moorlach, Morrell, Wilk

UPDATED:

VERSION: August 11, 2020

CONSULTANT: Nicholas Liedtke / JUD. / (916) 319-2334 FN: 0003555

(Without Reference to File)

ASSEMBLY THIRD READING

ATR Bill Id:AB 838

Author:(Eggman)

As Amended Ver:January 23, 2020

Majority vote

SUMMARY:

This bill creates the Farm Equity and Innovation Center (Center) within the University of California's (UC) Small Farm Program.

Major Provisions

1. Requires, by July 1, 2021, UC to create a coordinated, statewide program to support small- and moderate-scaled diversified farms and ranches. UC must establish the Center to administer this program and must have up to six Small Farm Advisor (Advisor) positions on staff.
2. Requires the Center to engage in the following activities: applied research on specified subjects, outreach on this research, including operation of extension programs and publication of materials, and informational services on assistance.
3. Authorizes the Center to include especial training for new and beginning farmers, which may include grants and technical assistance to nonprofit as well as partial reimbursement of internship costs for on-the-job training.
4. Requires UC to conduct a study on program participation and makes operation of this program subject to appropriation by the Legislature.

COMMENTS:

The bill seeks to ensure the economic viability of small farms and ranches run by socially disadvantaged farmers/ranchers in order to promote greater diversity and equity across California's agricultural sector.

California's farmers and ranchers are some of the most diverse across the United States. California has the largest population of Asian-American farmers and ranks third in the nation of Latino farmers. The quickly changing demographic trends in California show a decline in aging, white farmers, and an increase in the proportion of farmers of color.

More than 25,000 California farmers and ranchers identify themselves as people of color. Farmers of color account for nearly 21% of agricultural producers in the state. While increased diversity among farmers and ranchers is encouraging, data from the most recent agricultural census shows that farmers of color tend to own less land, make less money, and receive less federal and state support than their white counterparts. Farmers of color in California are also typically under-resourced and are often underrepresented.

According to the Author:

This bill would address this issue by establishing a coordinated, statewide Center program. The program would be based the Agriculture and Natural Resources branch of the UC system (UCANR), utilizing the existing Advisors. The Center's program would prioritize support for limited resource farmers/ranchers and socially disadvantage.

Arguments in Support:

By creating one centralized program to help coordinate the various efforts of each UCANR program, while simultaneously conducting targeted research, business management training, and technical and financial assistance can help to pool every available resource to ensure the continued growth and prosperity of California's diverse agricultural.

Arguments in Opposition:

None on file.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, unknown costs, possibly in excess of $6 million General Fund spread across a number of years, to support the new Center. These costs are subject to significant uncertainty.

VOTES:

ASM AGRICULTURE: 11-0-0

YES: Eggman, Mathis, Aguiar-Curry, Cunningham, Flora, Gray, Irwin, Jones-Sawyer, Quirk, Robert Rivas, Salas

ASM APPROPRIATIONS: 17-0-1

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Maienschein, Petrie-Norris, Quirk, Robert Rivas

ABS, ABST OR NV: Megan Dahle

UPDATED:

VERSION: January 23, 2020

CONSULTANT: Victor Francovich / AGRI. / (916) 319-2084 FN: 0002624

Date of Hearing: April 24, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 838

Author:(Eggman) – As Amended Ver:March 28, 2019

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

SUMMARY:

This bill creates the Farm Equity and Innovation Center (Center) within the University of California’s (UC’s) Small Farm Program. Specifically, this bill:

1. Requires, by July 1, 2021, UC to create a coordinated, statewide program to support small- and moderate-scaled diversified farms and ranches. UC must establish the Center to administer this program and must have up to six Small Farm Advisor (Advisor) positions on staff.
2. Requires the Center to engage in the following activities: applied research on specified subjects, outreach on this research, including operation of extension programs and publication of materials, and informational services on assistance.
3. Authorizes the Center to include especial training for new and beginning farmers, which may include grants and technical assistance to nonprofit as well as partial reimbursement of internship costs for on-the-job training.
4. Requires UC to conduct a study on program participation and makes operation of this program subject to availability of funding.

FISCAL EFFECT:

Unknown costs, possibly in excess of $6 million GF spread across a number of years, to support the new Center. These costs are subject to significant uncertainty, but major cost drivers include:

1. Research costs. AB 838 tasks the Center with an ambitious research agenda that must include research on identified subjects, including farm and ranch management using culturally relevant practices, effective marketing of culturally relevant crops, efficient water management, and management practices to conserve and promote air quality.

To compare, the UC Firearm Violence Prevention Research Center, which launched in 2017, received $5 million from the state for five years of firearm-related research.

1. Additional staffing costs. There will be significant personnel costs outside of the Center’s research activities, including approximately $600,000 to $800,000 annually for employing six Advisors. While UC currently employs four Advisors, UC is not statutorily required to do so. Therefore, cost estimates for this bill should assume that state funds will support the minimum number of six Advisor positions.
2. Grants, technical assistance and outreach. Unknown costs related to the Center’s other assigned duties, which include providing informational services on nonprofit-provided assistance services and technical assistance.

COMMENTS:

Background and purpose. The Assembly Agriculture Committee notes the following in its analysis of AB 838:

California’s farmers and ranchers are some of the most diverse across the United States. California has the largest population of Asian-American farmers and ranks third in the nation of Latino farmers. The quickly changing demographic trends in California show a decline in aging, white farmers, and an increase in the proportion of farmers of color.

More than 25,000 California farmers and ranchers identify themselves as people of color. Farmers of color account for nearly 21% of agricultural producers in the state. While increased diversity among farmers and ranchers is encouraging, data from the most recent agricultural census shows that farmers of color tend to own less land, make less money, and receive less federal and state support than their white counterparts. Farmers of color in California are also typically under-resourced and are often underrepresented.

According to the author, AB 838 will address a need for a statewide coordinated program targeting socially disadvantaged farmers. AB 838 will create a new center within the UC system and will prioritize support for limited resource farmers.

Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081

Date of Hearing: April 10, 2019

ASSEMBLY COMMITTEE ON AGRICULTURE

Susan Talamantes Eggman, Chair

ABPCA Bill Id:AB 838

Author:(Eggman) – As Amended Ver:March 28, 2019

SUBJECT: Agriculture: small-and moderate-scale diversified farms and ranches: assistance program

SUMMARY: Creates the Farmer Equity and Innovation Center (FQIC), within the University of California’s (UC) Small Farm Program, for the purpose of ensuring the continued economic viability of small- and moderate-scale diversified farms and ranches. Specifically, this bill:

1. Defines the following:
   1. Center means FQIC established pursuant to this bill;
   2. Limited-resource farmers and ranchers has the same meaning as defined by the United States Secretary of Agriculture;
   3. Program means the program run by FQIC;
   4. Small-and moderate-scale diversified farms and ranches means that term as defined by the center; and,
   5. Socially disadvantaged farmers and ranchers has the same meaning as defined in Food and Ag Code Section 512.
      
2. Requires FQIC to establish a methodology to determine whether a farm or ranch is a small- or moderate-scale diversified farm or ranch for purposes of this article based on an assessment of various factors over the preceding three-year period.
   
3. Requires UC, before July 1, 2021, to create a coordinated, statewide program to support the operators of small-and moderate-scale diversified farms and ranches, prioritizing limited resource farmers and ranchers and socially disadvantaged farmers and ranchers to ensure the continued economic viability and promote diversity and equity in California agriculture.
   
4. Requires UC to establish FQIC to administer the program.
   1. Requires FQIC to include the university’s Small Farm Advisors (SF advisors);
   2. Requires UC to increase its SF advisors positions to six;
   3. The program shall include, but not be limited to, the following activities:
      1. Applied research on the following subjects;
      2. Effective farm and ranch management using culturally relevant practices;
      3. Effective marketing of culturally relevant crops;
      4. Efficient water management; and,
      5. Management practices to conserve and promote air quality.
   4. The program’s outreach should include, but not be limited to, the following:
      1. Operation of extension programs; and,
      2. Publication of educational materials.
         
   5. Informational services on assistance provided by or through the center or nonprofit organizations with a track record of helping the operators of small-and moderate-scale diversified farms and ranches; and,
   6. Services and materials provided under the program shall be multilingual, in appropriate languages.
      
5. Allows the program to include special training for new and beginning farmers and ranchers, prioritizing socially disadvantaged farmers and ranchers, through means, including, but not limited to, the following:
   1. Grants and technical assistance to nonprofit organizations with a track record of supporting and training socially disadvantaged farmers and ranchers; and,
   2. Partial reimbursement of internship costs for on-the-job training at farms and ranches with successful business models for innovation, diversification, and economic viability.
      
6. Requires UC to conduct a study to determine, and issue a report, containing a demographic breakdown of farmers and ranchers who participate in the program. The breakdown shall be by categories, including, but not limited to, the following:
   1. Location;
   2. Race and ethnicity;
   3. Acreage of farmland or rangeland;
   4. Acreage of total land owned;
   5. Crops grown and the acreage of each crop;
   6. Crop yields; and,
   7. Gross profits.
      
7. Provides that this program will apply to UC only if the Regents of UC act, by appropriate resolution, to accept the responsibility for creating the FQIC‘s program.
   1. Requires the availability of funding before FQIC program can start.

EXISTING LAW:

1. Requires the Department of Food and Agriculture (CDFA), to promote and protect the agricultural industry of the state.
2. Requires CDFA to seek to maintain the economic well-being of agriculturally dependent rural communities in the state.
3. Provides constitutionally that UC constitutes a public trust administered by the Regents of the UC, a corporation in the form of a board, with full powers of organization and government, subject to legislative control only for specified purposes.

FISCAL EFFECT: Unknown

COMMENTS: The bill seeks to ensure the economic viability of small farms and ranches run by socially disadvantaged farmers/ranchers in order to promote greater diversity and equity across California’s agricultural sector.

California’s farmers and ranchers are some of the most diverse across the United States. California has the largest population of Asian-American farmers and ranks third in the nation of Latino farmers. The quickly changing demographic trends in California show a decline in aging, white farmers, and an increase in the proportion of farmers of color.

More than 25,000 California farmers and ranchers identify themselves as people of color. Farmers of color account for nearly 21% of agricultural producers in the state. While increased diversity among farmers and ranchers is encouraging, data from the most recent agricultural census shows that farmers of color tend to own less land, make less money, and receive less federal and state support than their white counterparts. Farmers of color in California are also typically under-resourced and are often underrepresented.

In 2017, the Farmer Equity Act (Act) was enacted where it defined a “socially disadvantaged farmer” to be a farmer or rancher who has been subjected to racial, ethnic, or gender prejudice. The Act also mandated that CDFA adopt policies that would ensure the inclusion of socially disadvantaged farmers in the creation and enforcement of food and agriculture laws, regulations, and programs.

Although the Act is just now being implemented to address deficiencies in the inclusion of socially disadvantage farmers at CDFA, there is no state-wide, coordinated program directly targeting socially disadvantaged farmers on the ground in their communities.

According to the author, AB 838 would address this issue by establishing a coordinated, statewide FQIC program. The program would be based the Agriculture and Natural Resources branch of the UC system (UCANR), utilizing the existing SF advisors. The FQIC program would prioritize support for limited resource farmers/ranchers and socially disadvantage.

UCANR previously operated a program called the Small Farm Program. The Small Farm Program was based on UC Davis’s (UCD) campus where they provided outreach to small farmers on the ground through SF advisors and their support staff who were deployed through county UC Cooperative Extension (UCCE) offices throughout the state. Due to budget cuts following the “Great Recession”, this program was cut down from six, to four SF advisors. Additionally, the center and staff established on the UCD campus were dispersed throughout different departments, and the center was effectively shut down in 2010.

Today, four SF advisors currently work through the UCCE providing as much assistance as they can. There are numerous UC ANR programs in existence today that impact California’s farming and ranching community. Many of these programs provide some outreach to operators; however, the focus is not directly attuned to small, socially disadvantaged farmers and ranchers.

Supporters state that by creating one centralized program to help coordinate the various efforts of each UCANR program, while simultaneously conducting targeted research, business management training, and technical and financial assistance can help to pool every available resource to ensure the continued growth and prosperity of California’s diverse agricultural sector.

REGISTERED SUPPORT / OPPOSITION:

Support

Agriculture & Land Based Training Association
California Farm Link
California Food And Farming Network
California State Grange
Community Alliance For Agroecology
Community Alliance With Family Farmers
Kitchen Table Advisors
Mandela Partners
National Young Farmers Coalition
Occidental Arts And Ecology Center
Pesticide Action Network North America

Pieranch
The Yisrael Family Urban Farm

Opposition

None on file

Analysis Prepared by: Victor Francovich / AGRI. / (916) 319-2084