BILL NUMBER: SB 1796 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 17, 2006
INTRODUCED BY Senator Florez
FEBRUARY 24, 2006
An act to amend Sections 8521, 8550, 8551, 8552, and 8554
of, 8554, 8575, 12878, and 12878.1 of, to amend the
heading of Part 4 (commencing with Section 8520) of Division 5 of,
to add Sections 8577, 8578, and 8614.5
8523, 8577, 8578, 8614.5, and 8614.6 to, and to repeal and add
Article 2 (commencing with Section 8580) to Chapter 2 of Part 4 of
Division 5 of the Water Code, relating to water.
LEGISLATIVE COUNSEL'S DIGEST
SB 1796, as amended, Florez Reclamation Board.
(1) Existing law establishes the 7-member Reclamation Board in the
Department of Water Resources. Existing law requires the board
members to be appointed and to serve at the pleasure of the Governor.
Existing law prescribes compensation for each board member for time
spent attending meetings of the board in the amount of $100, except
as specified. Existing law requires the board to elect one of its
members as president. Existing law requires the board to appoint a
secretary, who may be a board member, and authorizes the board to
appoint a general manager, a chief engineer, and an assistant
secretary. Existing law authorizes the board to employ certain other
employees.
This bill would rename the Reclamation Board the Central Valley
Flood Protection Board. The bill would declare that the board is a
state agency that is separate from the department and would require
the board to function independently of the department.
The board would require the board to consist of 9 members. The
bill would require 7 members to be appointed by the Governor, subject
to Senate confirmation, 4 of whom would be required to meet
specified eligibility requirements and 3 of whom would be designated
as public members. The bill would require one board member to be
appointed by the Senate Rules Committee and one board member to be
appointed by the Speaker of the Assembly and would designate those 2
members as public members. The bill, with a certain exception, would
require the board members to serve 4-year terms. The bill would
require the board members to receive a salary identical to that
received by members of the State Air Resources Board. The bill would
require the Governor to select one of the board members as president.
The bill would subject the board members to specified
requirements relating to conflict of interest and ex parte
communications.
The bill would repeal provisions relating to the appointment or
employment of specified personnel and, instead, authorize the board
to appoint an executive officer and to employ legal counsel and other
necessary staff.
(2) Existing law provides that a member of the board having an
interest in lands within the drainage district is not disqualified
from voting to execute any part of the plans of flood control or from
carrying out the objects of the board.
This bill would instead require that a member of the board having
an interest in lands within the drainage district, recuse himself or
herself from voting to execute those parts of the plans of flood
control that would affect those lands. The bill would subject the
board members to specified requirements relating to conflict of
interest and ex parte communications.
(2)
(3) Existing law authorizes the board to
engage in various flood control activities along the Sacramento
River, San Joaquin River, their tributaries, and related areas.
This bill would require the board to prepare a
report to the Governor and Legislature, by December 31, 2008, on the
status of the state flood control system. The bill would require the
board to conduct at least 2 public meetings to consider
public comments prior to finalizing the report, and would require the
department to assist the board in developing the necessary
information for the report. The bill would require the board,
on or before January 1, 2008 2009 , to
prepare and adopt a strategic flood control plan. The bill would
require the board to establish and update, every 5 years, standards
for levee construction, operation, and maintenance. The bill would
require the board to review local and regional land use plans to
ensure their compliance with flood protection and public safety
standards adopted by the board. The bill would require the board to
review and revise, as necessary, flood control plans adopted by local
public agencies. By establishing requirements on local public
agencies in connection with flood control plans, the bill would
impose a state-mandated local program. The bill would prohibit the
board from allocating any funds to a local public agency for a flood
control project unless the board determines that project ensures
adequate flood protection.
(3)
(4) The California Constitution requires the
state to reimburse local agencies and school districts for certain
costs mandated by the state. Statutory provisions establish
procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The heading of Part 4 (commencing with
Section 8520) of Division 5 of the Water Code
is amended to read:
PART 4. THE RECLAMATION CENTRAL VALLEY
FLOOD PROTECTION BOARD
SECTION 1. SEC. 2. Section 8521 of
the Water Code is amended to read:
8521. "Board" means the Central Valley Flood Protection Board.
Any reference to the Reclamation Board in this or any other code
means the Central Valley Flood Protection Board.
SEC. 3. Section 8523 is added to the
Water Code , to read:
8523. "State Plan of Flood Control" means the state and federal
flood control works, lands, programs, plans, conditions, and mode of
maintenance and operations of the Sacramento River Flood Control
Project described in Section 8350, and of flood control projects in
the Sacramento River and San Joaquin River watersheds authorized
pursuant to Article 2 (commencing with Section 12648) of Chapter 2 of
Part 6 of Division 6 for which the board or the department has
provided the nonfederal assurances to the United States.
SEC. 2. SEC. 4. Section 8550 of the
Water Code is amended to read:
8550. (a) The board is continued in existence and shall continue
to exercise and have all of its powers, duties, purposes,
responsibilities, and jurisdiction.
(b) Notwithstanding any other provision of law, the board is a
state agency that is separate from, and shall function independently
of, the department.
SEC. 3. SEC. 5. Section 8551 of the
Water Code is amended to read:
8551. (a) Except as provided in subdivision (g), the board
consists of nine members who shall be appointed in accordance with
this section.
(b) (1) Seven members of the board shall be appointed by and serve
at the pleasure of the Governor, subject to Senate confirmation.
(2) Of the members appointed pursuant to paragraph (1), the
following requirements apply:
(A) One person shall be an engineer.
(B) One person shall be a hydrogeologist.
(C) One person shall be a flood control expert with not less than
five years experience.
(D) One person shall be an attorney with water experience.
(E) Three persons shall be public members.
(c) One member of the board shall be appointed by the Senate Rules
Committee.
(d) One member of the board shall be appointed by the Speaker of
the Assembly.
(e) The member appointed pursuant to subdivision (c) or (d) shall
be a public member.
(f) (1) Except as provided in paragraph (2), the board members
appointed pursuant to subdivision (b), (c), or (d) shall serve
four-year terms.
(2) The board members initially appointed pursuant to this section
shall determine, by lot, that five members shall serve four-year
terms and four members shall serve two-year terms.
(g) Each board member holding office on December 31, 2006, shall
continue to serve until his or her successor is appointed and has
been qualified to hold office. The order of re
placement shall be determined by lot.
SEC. 4. SEC. 6. Section 8552 of the
Water Code is amended to read:
8552. (a) Each member of the board shall receive the necessary
expenses incurred by the member in the performance of official
duties.
(b) Any member of the board traveling outside the state pursuant
to authorization of the board, and the approval of the Governor and
Director of Finance as provided by Section 11032 of the Government
Code, while so engaged shall receive per diem and his or her
necessary expenses.
(c) Each member of the board shall receive the salary provided for
in Section 11564 of the Government Code.
SEC. 5. SEC. 7. Section 8554 of the
Water Code is amended to read:
8554. The Governor shall select one of the members of the board
as president.
SEC. 6. SEC. 8. Section 8577 is
added to the Water Code, to read:
8577. (a) No member of the board shall participate in any board
action or attempt to influence any decision or recommendation by any
employee of or consultant to the board that involves himself or
herself or that involves any entity with which the member is
connected as a director, officer, consultant, or full- or part-time
employee, or in which the member has a direct personal financial
interest within the meaning of Section 87100 of the Government Code.
(b) No board member shall participate in any proceeding before any
agency as a consultant or in any other capacity on behalf any person
of that actively participates in matters before the board.
(c) For a period of 12 months after leaving office, a former board
member shall not act as agent or attorney for, or otherwise
represent, any other person before the board by making any formal or
informal appearance or by making any oral or written communication to
the board.
(Added by Stats. 1989, Ch. 1095, Sec. 22.)
SEC. 9. Section 8575 of the Water Code
is amended to read:
8575. A member of the board having an interest in lands within
the drainage district is not disqualified
shall recuse himself or herself from voting to execute
any part those parts of the plans of flood
control or from carrying out the objects of this part
that would affect those lands .
SEC. 7. SEC. 10. Section 8578 is
added to the Water Code, to read:
8578. (a) For the purposes of this section, "ex parte
communication" means any oral or written communication concerning
matters, other than purely procedural matters, under the board's
jurisdiction that are subject to a vote.
(b) (1) No board member or any person, excluding a staff member of
the board acting in his or her official capacity, who intends to
influence the decision of a board member on a matter before the
board, shall conduct an ex parte communication.
(2) If an ex parte communication occurs, the board member shall
notify the interested party that a full disclosure of the ex parte
communication shall be entered in the board's record.
(3) Communications cease to be ex parte communications when either
of the following occurs:
(A) The board member or the person who engaged in the
communication with the board member fully discloses the communication
and requests in writing that it be placed in the board's official
record of the proceeding.
(B) When two or more board members receive substantially the same
written communication, or are party to the same oral communication,
from the same party on the same matter, and a single board member
fully discloses the communication on behalf of the other board member
or members who received the communication and requests in writing
that it be placed in the board's official record of the proceeding.
(c) Notwithstanding Section 11425.10 of the Government Code, the
ex parte communications provisions of the Administrative Procedure
Act (Article 7 (commencing with Section 11430.10) of Chapter 4.5 of
Part 1 of Division 3 of Title 2 of the Government Code) do not apply
to proceedings of the board to which this section applies.
(Amended by Stats. 1995, Ch. 938, Sec. 84. Effective January 1,
1996. Operative July 1, 1997, by Sec. 98 of Ch. 938.)
SEC. 8. SEC. 11. Article 2
(commencing with Section 8580) of Chapter 2 of Part 4 of Division 5
of the Water Code is repealed.
SEC. 9. SEC. 12. Article 2
(commencing with Section 8580) is added to Chapter 2 of Part 4 of
Division 5 of the Water Code, to read:
Article 2. Employees
8580. (a) The board may appoint an executive officer.
(b) The board may employ legal counsel and other necessary staff.
SEC. 10. SEC. 13. Section 8614.5 is
added to the Water Code, to read:
8614.5. (a) On or before January 1, 2008
2009 , the board shall prepare and adopt a strategic flood
control plan that includes identifying the areas of greatest
threat to flooding pursuant to Section 8614.6 .
The board shall make relevant maps available to the public and shall
post these maps on its Internet Web site.
(b) The board shall establish and update, at a minimum, every five
years, standards for levee construction, operation, and maintenance.
(c) The board shall review local and regional land use plans to
ensure their compliance with flood protection and public safety
standards adopted by the board.
(d) The board shall review flood control plans adopted by local
public agencies to ensure that those plans adequately protect public
safety. The board shall revise those plans to ensure adequate flood
protection if the board determines that the plans are insufficient
for flood protection purposes.
(e) The board shall not allocate any funds to a local public
agency for a flood control project unless the board determines that
project ensures adequate flood protection.
SEC. 14. Section 8614.6 is added to the
Water Code , to read:
8614.6. (a) By December 31, 2008, the board shall prepare a
report to the Governor and Legislature on the status of the state
flood control system. For the purposes of preparing the report, the
board shall inspect the project levees and review available
information on all of the following:
(1) A description and the location of all facilities of the State
Plan of Flood Control, including, but not limited to, levees, canals,
weirs, bypasses, and pumps.
(2) An evaluation of the performance and deficiencies of project
levees and other facilities of the State Plan of Flood Control.
(3) A prioritized list of actions necessary to improve the
performance of, and to the maximum extent practicable, to eliminate
deficiencies of, project levees and other facilities of the State
Plan of Flood Control, using the following criteria for establishing
its priority list:
(A) The likelihood of failure by the levee or facility.
(B) The current population protected by the levee or facility.
(C) The public safety infrastructure protected by the levee or
facility. For purposes of this subparagraph, "public safety
infrastructure" means the street and highway evacuation routes,
hospitals, and other public safety infrastructure necessary to
respond to a flood emergency.
(4) The board shall consider both structural and nonstructural
methods for improving the performance and eliminating deficiencies of
project levees and other facilities of the State Plan of Flood
Control and wherever feasible, the board shall include actions
intended to meet multiple objectives, including each of the
following:
(A) Reducing the risk to human life, health, and safety from
flooding.
(B) Promoting natural dynamic hydrologic and geomorphic processes.
(C) Reducing damages from flooding.
(D) Increasing and improving the quantity, diversity, and
connectivity of riparian, wetland, floodplain, and shaded riverine
aquatic habitats, including agriculture and the ecological values of
these lands.
(E) Minimizing the flood management system operation and
maintenance requirements.
(F) Promoting the recovery and stability of native species
populations and overall biotic community diversity.
(b) The department shall assist the board in developing the
necessary information for the report.
(c) (1) The board shall conduct at least two public meetings to
consider public comments prior to finalizing the report. At least one
meeting shall be conducted at a location in the Sacramento Valley
and at least one meeting shall be conducted at a location in the San
Joaquin Valley or the Sacramento-San Joaquin Delta as described in
Section 12220.
(2) The board shall publish the draft report on its Internet Web
site at least 30 days before the public meetings.
(3) To the extent feasible, the board shall provide outreach to
disadvantaged communities to promote access and participation in the
meetings.
(d) By December 31, 2007, the board shall provide a report to the
Governor and Legislature on its progress toward meeting the
requirements of subdivision (a).
(e) It is the intent of the Legislature that the report to the
Governor and Legislature on the status of the state flood control
system become the basis for developing and implementing one or more
Natural Communities Conservation Plans or joint Natural Communities
Conservation Plan/Habitat Conservation Plans for flood management
projects.
SEC. 15. Section 12878 of the Water
Code is amended to read:
12878. Unless the context otherwise requires, the following
definitions apply throughout this chapter:
(a) "Department" means Department of Water Resources.
(b) "Director" means the Director of Water Resources.
(c) "Board" means the State Reclamation
Central Valley Flood Protection Board.
(d) Wherever the words "board or department" or "board or director"
are used together in this chapter they shall mean board as to any
project in the Sacramento or San Joaquin Valleys or on or near the
Sacramento River or the San Joaquin River or any of their
tributaries, and department or director as to any project in any
other part of the state outside of the jurisdiction of the board.
(e) "Project" means any project that has been authorized pursuant
to Chapter 2 (commencing with Section 12639) or Chapter 4 (commencing
with Section 12850) and concerning which assurances have been given
to the Secretary of the Army or the Secretary of Agriculture that the
state or a political subdivision thereof will operate and maintain
the project works in accordance with regulations prescribed by the
federal government or any project upon which assurances have been
given to the Secretary of the Army and upon which the Corps of
Engineers, United States Army, has performed work pursuant to Section
208 of Public Law 780, 83rd Congress, 2nd Session, approved
September 3, 1954.
(f) "Maintenance" means work described as maintenance by the
federal regulations issued by the Secretary of the Army or the
Secretary of Agriculture for any project.
(g) "Maintenance area" means described or delineated lands that
are found by the board or department to be benefitted by the
maintenance and operation of a particular unit of a project.
(h) "Unit" means any portion of the works of a project designated
as a unit by the board or department, other than the works prescribed
in Section 8361, or works operated and maintained by the United
States.
(i) "Land" includes improvements.
(j) "Local agency" means and includes all districts or other
public agencies responsible for the operation of works of any project
under Section 8370, Chapter 2 (commencing with Section 12639) or
Chapter 4 (commencing with Section 12850) or any other law of this
state.
(k) "Cost of operation and maintenance" means, for the purposes of
maintenance areas established after July 31, 2004, as the result of
relinquishment by a local agency pursuant to Section 12878.1 only,
the cost of all maintenance, as defined in subdivision (f), and shall
also include, but is not limited to, all of the following costs:
(1) All costs incurred by the department or the board in the
formation of the maintenance area under this chapter.
(2) Any costs, if deemed appropriate by the department, to secure
insurance covering liability to others for damages arising from the
maintenance activities of the department or from flooding in the
maintenance area.
(3) Any costs of defending any action brought against the state,
the department, or the board, or any employees of these entities, for
damages arising from the maintenance activities of the department or
from flooding in the maintenance area.
(4) Any costs incurred in the payment of any judgment or
settlement of an action against the state, the department, or the
board, or any employees of these entities, for damages arising from
the formation of the maintenance area or from any maintenance
activities of the department or flooding in the maintenance area.
SEC. 16. Section 12878.1 of the Water
Code is amended to read:
12878.1. (a) Whenever the board or department finds
that a unit of a project is not being operated or maintained in
accordance with the standards established by federal regulations or
whenever the governing body of a local agency obligated to operate
and maintain that unit by resolution duly adopted and filed with the
department declares that it no longer desires to operate and maintain
the unit, the department shall prepare a statement to that effect
specifying in detail the particular items of work necessary to be
done in order to comply with the standards of the federal government
together with an estimate of the cost thereof for the current fiscal
year and for the ensuing fiscal year.
(b) Subject to subdivision (c), but notwithstanding any other
provision of law, the board or the department is not required to
proceed in accordance with subdivision (a) or with the formation of a
maintenance area under this chapter if neither the board nor the
department has given the nonfederal assurances to the United States
required for the project. If neither the board nor the department has
given the nonfederal assurances to the United States required for
the project, the board or department may elect to proceed with the
formation if it determines that the formation of a maintenance area
is in the best interest of the state.
(c) (1) Subdivision (b) does not apply to any project for which an
application for the formation of a maintenance area under this
chapter has been submitted to the department by a local agency on or
before July 1, 2003.
(2) Subject to paragraph (3), the department or the board shall
proceed in accordance with subdivision (a) and with the formation of
a maintenance area in accordance with this chapter for any project
described in paragraph (1).
(3) Before the department or the board forms a maintenance area
pursuant to this subdivision, the local agency shall enter into an
agreement with the department pursuant to which the local agency
agrees to indemnify and hold and save harmless the state, its
officers, agents, and employees for any and all liability for damages
that may arise out of the planning, design, construction, operation,
maintenance, repair, or rehabilitation of the project, or the
dissolution or modification of the maintenance area formed pursuant
to this subdivision.
SEC. 11. SEC. 17. If the Commission
on State Mandates determines that this act contains costs mandated by
the state, reimbursement to local agencies and school districts for
those costs shall be made pursuant to Part 7 (commencing with Section
17500) of Division 4 of Title 2 of the Government Code.