2007 California Water Code Part 9. Delta Levee Maintenance

CA Codes (wat:12980-12995)

12980.  As used in this part:
   (a) "Board" means the Reclamation Board.
   (b) "Delta" means the Sacramento-San Joaquin Delta as described in
Section 12220.
   (c) "Local agency" means any city, county, district, or other
political subdivision of the state which is authorized to maintain
levees.
   (d) "Net long-term habitat improvement" means enhancement of
riparian, fisheries, and wildlife habitat.
   (e) "Nonproject levee" means a local flood control levee in the
delta that is not a project facility under the State Water Resources
Law of 1945, as shown on page 38 of the Department of Water Resources
"Sacramento-San Joaquin Delta Atlas," dated 1993.
   (f) "Project levee" means a federal flood control levee, as shown
on page 40 of the Department of Water Resources "Sacramento-San
Joaquin Delta Atlas," dated 1993, that is a project facility under
the State Water Resources Law of 1945 (Chapter 1 (commencing with
Section 12570) and Chapter 2 (commencing with Section 12639) of Part
6), if not less than a majority of the acreage within the
jurisdiction of the local agency that maintains the levee is within
the primary zone of the delta, as defined in Section 29728 of the
Public Resources Code.



12981.  (a) The Legislature finds and declares that the delta is
endowed with many invaluable and unique resources and that these
resources are of major statewide significance.
   (b) The Legislature further finds and declares that the delta's
uniqueness is particularly characterized by its hundreds of miles of
meandering waterways and the many islands adjacent thereto; that, in
order to preserve the delta's invaluable resources, which include
highly productive agriculture, recreational assets, fisheries, and
wildlife environment, the physical characteristics of the delta
should be preserved essentially in their present form; and that the
key to preserving the delta's physical characteristics is the system
of levees defining the waterways and producing the adjacent islands.
However, the Legislature recognizes that it may not be economically
justifiable to maintain all delta islands.
   (c) The Legislature further finds and declares that funds
necessary to maintain and improve the delta's levees to protect the
delta's physical characteristics should be used to fund levee work
that would promote agricultural and habitat uses in the delta
consistent with the purpose of preserving the delta's invaluable
resources.



12982.  The Legislature further finds and declares that while most
of the delta's levees are privately owned and maintained they are
being subjected to varied multiple uses and serve to benefit many
varied segments and interests of the public at large, and that as a
result of the varied multiple uses of such levees, added maintenance
costs are being borne by adjacent landowners.



12983.  The Legislature further finds and declares that there is an
urgent need for a higher degree of levee maintenance and
rehabilitation generally throughout the delta and that the state has
an interest in providing technical and financial assistance for delta
levee maintenance and rehabilitation.
   The Legislature also finds and declares that, because of the
instability of delta soils, the effect of winds, tides, and
floodflows, and the unique problems of erosion, seepage, and
subsidence, the same security against levee failure and flooding
cannot be achieved by protective works in the delta as in areas less
vulnerable to these problems.  Although the rehabilitation and
maintenance of delta levees is an important undertaking, a
significant risk of levee failure will still persist.
   The purpose of the state's approval of plans and inspection of
works, which duties are set forth in this part, is to ensure that
subvention funds are properly expended and that delta levees are
effectively rehabilitated and maintained, and the state does not
thereby assume any responsibility for the safety of any delta levee
against failure.



12984.  The department shall develop and submit to the board, for
adoption by the board, criteria for the maintenance and improvement
of nonproject levees.  The criteria shall vary as required to meet
specific conditions and shall be multipurpose in nature, and include
environmental considerations, when feasible.  The criteria shall
embody and implement both of the following:
   (a) The short-term mitigation plan set forth in the "Flood Hazard
Mitigation Plan for the Sacramento-San Joaquin Delta," prepared by
the department for the Office of Emergency Services, dated September
15, 1983, or as amended.
   (b) The "Vegetation Management Guidelines for Local Nonproject
Delta Levees" dated April 1994, or any successor guidelines.




12985.  Prior to adoption of any such criteria, the board shall hold
public hearings and may revise the criteria as it determines
necessary.


12986.  (a) It is the intention of the Legislature to reimburse an
eligible local agency pursuant to this part for costs incurred in any
year for the maintenance or improvement of project or nonproject
levees as follows:
   (1) No costs incurred shall be reimbursed if the entire cost
incurred per mile of project or nonproject levee is one thousand
dollars (,000) or less.
   (2) Not more than 75 percent of any costs incurred in excess of
one thousand dollars (,000) per mile of project or nonproject levee
shall be reimbursed.
   (3) (A) As part of the project plans approved by the board, the
department shall require the local agency or an independent financial
consultant to provide information regarding the agency's ability to
pay for the cost of levee maintenance or improvement. Based on that
information, the department may require the local agency or an
independent financial consultant to prepare a comprehensive study on
the agency's ability to pay.
   (B) The information or comprehensive study of the agency's ability
to pay shall be the basis for determining the maximum allowable
reimbursement eligible under this part. Nothing in this paragraph
shall be interpreted to increase the maximum reimbursement allowed
under paragraph (2).
   (4) Reimbursements made to the local agency in excess of the
maximum allowable reimbursement shall be returned to the department.

   (5) The department may recover, retroactively, excess
reimbursements paid to the local agency from any time after January
1, 1997, based on an updated study of the agency's ability to pay.
   (6) All final costs allocated or reimbursed under a plan shall be
approved by the reclamation board for project and nonproject levee
work.
   (7) Costs incurred pursuant to this part that are eligible for
reimbursement include construction costs and associated engineering
services, financial or economic analyses, environmental costs,
mitigation costs, and habitat improvement costs.
   (b) Upon completion of its evaluation pursuant to Sections 139.2
and 139.4, by January 1, 2008, the department shall recommend to the
Legislature and the Governor priorities for funding under this
section.
   (c) This section shall become inoperative on July 1, 2010, and, as
of January 1, 2011, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2011, deletes or
extends the dates on which it becomes inoperative and is repealed.



12986.  (a) It is the intention of the Legislature to reimburse from
the General Fund an eligible local agency pursuant to this part for
costs incurred in any year for the maintenance or improvement of
project or nonproject levees as follows:
   (1) No costs incurred shall be reimbursed if the entire cost
incurred per mile of levee is one thousand dollars (,000) or less.

   (2) Fifty percent of any costs incurred in excess of one thousand
dollars (,000) per mile of levee shall be reimbursed.
   (3) The maximum total reimbursement from the General Fund shall
not exceed two million dollars (,000,000) annually.
   (b) This section shall become operative on July 1, 2010.



12987.  (a) Local agencies maintaining project or nonproject levees
shall be eligible for reimbursement pursuant to this part upon
submission to and approval by the board of plans for the maintenance
and improvement of the project or nonproject levees, including plans
for the annual routine maintenance of the levees, in accordance with
the criteria adopted by the board.
   (b) The nonproject plans shall also be compatible with the plan
for improvement of the delta levees as set forth in Bulletin No.
192-82 of the department, dated December 1982, and as approved in
Section 12225.  Both project and nonproject plans shall include
provisions to acquire easements along levees that allow for the
control and reversal of subsidence in areas where the department
determines that such an easement is desirable to maintain structural
stability of the levee.  The easement shall (1) restrict the use of
the land to open-space uses, nontillable crops, the propagation of
wildlife habitat, and other compatible uses, (2) provide full access
to the local agency for levee maintenance and improvement purposes,
and (3) allow the owner to retain reasonable rights of ingress and
egress as well as reasonable rights of access to the waterways for
water supply and drainage.  The local agency cost of acquisition of
the easements shall be reimbursable by the department from moneys
appropriated pursuant to paragraph (1) of subdivision (b) of Section
12300, or any other sources appropriated by the Legislature for
purposes of this part.
   (c) The plans shall also include provision for protection of the
fish and wildlife habitat determined to be necessary by the
Department of Fish and Game and not injurious to the integrity of the
levee.  The Department of Fish and Game shall consider the value of
the riparian and fisheries habitat and the need to provide safe
levees in preparing its requirements.  The Department of Fish and
Game shall not approve any plan which calls for the use of channel
islands or berms with significant riparian communities as borrow
sites for levee repair material, unless fully mitigated, or any plans
which will result in a net long-term loss of riparian, fisheries, or
wildlife habitat.
   (d) After the memorandum of understanding required pursuant to
Section 12307 is amended as required by Section 78543, the Department
of Fish and Game shall also make a written determination as part of
its review and approval of a plan or project pursuant to Section
12314 and this section that the proposed expenditures are consistent
with a net long-term habitat improvement program and have a net
benefit for aquatic species in the delta.  The memorandum of
understanding in effect prior to the amendments required by Section
78543 shall remain in effect with regard to levee projects and plans
until the memorandum of understanding is amended.
   (e) The plans shall also take into account the most recently
updated Delta Master Recreation Plan prepared by the Resources
Agency.
   (f) Upon approval of the plans by the board, the local agencies
shall enter into an agreement with the board to perform the
maintenance and improvement work, including the annual routine
maintenance work, specified in the plans.  If applications for state
funding in any year exceed the state funds available, the board shall
apportion the funds among those levees or levee segments that are
identified by the department as most critical and beneficial,
considering the needs of flood control, water quality, recreation,
navigation, habitat improvements, and fish and wildlife.



12987.5.  (a) In an agreement entered into under Section 12987, the
board may provide for an advance to the applicant in an amount not to
exceed 75 percent of the estimated state share. The agreement shall
provide that no advance shall be made until the applicant has
incurred costs averaging one thousand dollars (,000) per mile of
levee.
   (b) Advances made under subdivision (a) shall be subtracted from
amounts to be reimbursed after the work has been performed. If the
department finds that work has not been satisfactorily performed or
where advances made actually exceed reimbursable costs, the local
agency shall promptly remit to the state all amounts advanced in
excess of reimbursable costs. If advances are sought, the board may
require a bond to be posted to ensure the faithful performance of the
work set forth in the agreement.
   (c) This section shall become inoperative on July 1, 2010, and, as
of January 1, 2011, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2011, deletes or
extends the dates on which it becomes inoperative and is repealed.



12988.  Upon the completion in any year of the maintenance or
improvement work, including annual routine maintenance work, as
specified in the plans approved by the board, the local agency shall
notify the department, and the department shall inspect the completed
work.  The department, upon completion of such inspection, shall
submit to the board a report as to its findings.  Upon a finding that
the work has been satisfactorily completed in accordance with the
approved plans, the board shall certify for reimbursement 75 percent
of any costs incurred per mile of levee if the entire cost incurred
per mile of levee is greater than one thousand dollars (,000).



12989.  (a) The department shall conduct at least one annual
inspection of every levee for which maintenance or improvement costs
have been reimbursed pursuant to this part.  In addition, the
department shall inspect nonproject levees of local agencies for the
purpose of monitoring and ascertaining the degree of compliance with,
or progress toward meeting, standards such as those set forth in
Section 12984.
   (b) The local agency shall cooperate with the department in the
conduct of these inspections, including the provision of reasonable
access over local agency lands and easements.



12990.  Whenever the department finds that the annual routine
maintenance work specified in the plans approved by the board is not
being performed in accordance with the agreement entered into between
the local agency and the board, the department may establish a
maintenance area in accordance with the provisions of Chapter 4.5
(commencing with Section 12878) of Part 6 of this division, as nearly
as the same may be applicable, except that the work to be performed
shall be the routine annual maintenance work for the nonproject levee
as specified in the plans approved by the board.  Upon the formation
of a maintenance area, the department shall thereafter annually
maintain the nonproject levee in accordance with such plans and
subject to the provisions of Chapter 4.5 (commencing with Section
12878) of Part 6 of this division, as nearly as the same may be
applicable.


12991.  The board is authorized to make, from time to time, such
rules and regulations as may be necessary to carry out, and as are
consistent with, this part.



12992.  Before any plan is approved, agreement entered into, or
moneys advanced or reimbursed under this part, the local agency shall
first enter into an agreement with the board indemnifying and
holding and saving the State of California, the board, the
department, any other agency or department of the state, and their
employees free from any and all liability for damages, except that
caused by gross negligence, that may arise out of the approvals,
agreements, inspections, or work performed under this part.
   Any funds appropriated for any of the purposes of this part may be
used to satisfy any judgment against the state covered by this
section, pending indemnification by the local agency.



12993.  Applicants shall apply for federal disaster assistance,
whenever eligible, under Public Law 93-288.  If, and to the extent
that, it is determined  that the work performed does not qualify for
federal disaster assistance, the applicant may apply for
reimbursement under Section 12986, and the costs shall be deemed
incurred by the applicant in the year in which the latter application
is filed.



12994.  (a) The Legislature finds and declares all of the following:

   (1) The CALFED Bay-Delta Program has identified as a core action
the need for emergency levee management planning for delta levees to
improve system reliability.
   (2) Even with active levee maintenance, the threat of delta levee
failures from earthquake, flood, or poor levee foundation, will
continue to exist.
   (3) Because of this threat of failure, and the potential need to
mobilize people and equipment in an emergency to protect delta levees
and public benefits, the department needs authority that will enable
it to act quickly.
   (b) The department may do all of the following:
   (1) In an emergency, as defined by Section 21060.3 of the Public
Resources Code, that requires immediate levee work to protect public
benefits in the delta, the department may use funds pursuant to this
part without prior approval of a plan by the board or the Department
of Fish and Game, in which case the requirements of Sections 12314
and 12987, and the memorandum of understanding pursuant to Section
12307, shall be carried out as soon as possible.
   (A) The amount of funds that may be expended each year on
emergency levee work under this section shall not be greater than two
hundred thousand dollars (0,000) and the amount that may be
expended per emergency levee site shall not be greater than fifty
thousand dollars (,000).  The local agency shall fund 25 percent
of the total costs of the emergency repair at a site or shall fund an
appropriate share of the costs as approved by the board and based
upon information of the local agency's ability to pay for the
repairs.
   (B) Department contracts executed for emergency levee work under
this section shall be exempted from Department of General Services
approval required under the Public Contract Code.
   (C) As soon as feasible after the emergency repair, the department
shall submit a report to the board describing the levee work, costs
incurred, and plans for future work at the site, including any
necessary mitigation.
   (D) This section is intended to supplement emergency services
provided by the state or the United States.  Nothing in this section
overrides or supersedes the authority of the Director of the Office
of Emergency Services under the California Emergency Services Act
(Chapter 7 (commencing with Section 8550) of Division 1 of Title 2 of
the Government Code) or the Disaster Assistance Act (Chapter 7.5
(commencing with Section 8680) of Division 1 of Title 2 of the
Government Code).
   (2) Prepare and submit to the board for adoption a delta emergency
response plan for levee failures.  The plan is exempt from Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code.  The plan may include recommendations of
the multiagency response team established pursuant to paragraph (3)
and may include, but not be limited to, the following:
   (A) Standardized contracts for emergency levee work to be executed
by the department, local agencies, or other appropriate entities.
   (B) Criteria for eligible emergency levee work.
   (C) Definition of an emergency levee site.
   (D) Documentation requirements.
   (E) Proposals for complying with the federal Endangered Species
Act of 1973 (16 U.S.C. Sec. 1531 et seq.) and the California
Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of
Division 3 of the Fish and Game Code) in an emergency.
   (F) Stages of emergency response that may occur in various
situations.
   (3) Establish a multiagency emergency response team, consisting of
representatives from the department, the board, the Department of
Fish and Game, the California Conservation Corps, the Office of
Emergency Services, the Federal Emergency Management Agency, the
United States Army Corps of Engineers, and the United States Fish and
Wildlife Service to advise on methods to ensure that levee
emergencies will be resolved as quickly and safely as possible.



12995.  (a) The Legislature hereby finds and declares both of the
following:
   (1) There is an urgent need for rehabilitation and improvement of
delta levees, and that the United States Army Corps of Engineers has
a crucial and continuing role in that work.
   (2) The department and the board have been cooperating with the
United States Army Corps of Engineers in a feasibility study for
rehabilitation and improvement of the levees in the delta.  That
feasibility study identified a federal interest in levee
rehabilitation and improvements due to benefits to navigation,
commerce, the environment, and flood damage reduction.
   (b) The department and the board may cooperate with the United
States Army Corps of Engineers to develop and implement delta levee
rehabilitation, improvement, and realignment, and to enhance the
environment.