Chief Deputy Executive Officer Dan Ray and Delta Plan Program Manager Cindy Messer updated the Council on near-term strategies for implementing the Delta Plan. The objective for staff today was to take public testimony and comments on near-term strategies and to get feedback and direction from the Council on the next steps. “There’s been discussion about bold actions and moving ahead today, and we feel that one of the primary purposes is to develop a mechanism under which we can take bold actions in the near term and that we, as the Council, are operating in our role of coordinator, convener, facilitator, as we move forward through the strategies and talk about example projects and programs,” said Ms. Messer.
Mr. Ray said staff looked at the actions recommended in the Delta Plan, as well as the projects being advocated by the Coalition for Delta Projects and the San Joaquin Valley Partnership, and framed them into four strategies:
Improve the reliability of California’s water supplies
Restore the Delta ecosystem
Protect the Delta as place
Coordinate Delta activities
Staff then identified and listed significant actions within those strategies that may need more resources and attention to be successful or actions that are already underway but need to stay on track, as well as actions that are essential ‘precursors of progress’ – actions that need to need to be initiated now to build the basis for important future actions. In terms of selecting projects, Mr. Ray said, “We turned to the guiding principles that the Council talked about in August. We’ve looked for actions that can be tied to an existing fund source and we’ve tried to look for projects that will make a short-term difference while recognizing there are certain actions that are precursors of progress.”
Councilman Hank Nordhoff said that the Council needs to make sure to have some actions that support Delta as a place: “I’d like to see some local pork, an actual project or two in the Delta to keep faith with Delta communities that we want to continue to work with them.”
Mr. Ray noted that there is about $500 million potentially available from Prop 84, Prop 50 and others. Some work may be able to be funded by water users, and some levee projects could be funded by project beneficiaries.
Chair Phil Isenberg advised staff to be modest about the money that is realizable as it’s not going to be great under any circumstance: “I’d almost structure this initially as if it were an offering that were made if the Governor and Secretary Salazar said at their next press conference they want to start some short term actions in the Delta and test some ideas and do test runs on activities because I think there is a reasonable possibility – not a high possibility – but a reasonable possibility that something like that might be in the cards in the next six months.”
What policymakers look for in a list of near term actions are really starting points, said Mr. Isenberg; the political process will dictate ultimately whether you are using existing money or new money. He said the state and federal government should approve a modest list of near term actions focused in and around the Delta to be fully achieved within the next 10 years. As for funding, Mr. Isenberg said that in his judgment, over a 10 year period of time, usually the most you have a chance of getting is a billion dollars from all sources. That might sounds like a huge amount of money until people realize that state & federal agencies spend $20 Billion a year operating water systems statewide and another $5 or $6B on capital improvements. The notion that all beneficiaries have to financially participate and that the state will not carry total financial responsibility is another sobering but realistic point, he said, and all actions must help to achieve the coequal goals in a 10 year period of time.
“I think this concept of near term actions is the place where we also propose to test a science component that is closer to what we hope to achieve in the future. Something far more clearer and more specific than the fuzzy outline in the BDCP now, something close to what [Lead Scientist] Peter’s been talking about.Let’s test out in a modest way on a designated series of activities what might be possible with improved science,” said Mr. Isenberg.
Since the BDCP is considering dual conveyance, the operation of the current system needs to be protected, said Mr. Isenberg; the repair and maintenance of the SWP and components is responsibility of the water contractors under law: “Protect the system you’ve got while you argue about the perfect world to come. Also you have to do ecosystem activities, both because the coequal goals require it, but also because you can’t just protect the existing water conveyance system and be blind to the damage it’s currently doing to the fish species which has driven the litigation.”
Mr. Isenberg noted that the coalitions began with Metropolitan Water District, Westlands Water District, and Delta water agencies joining together to decide how the state should pay $268 million to do some levee work: “I was impressed that everybody’s always able to agree on how to spend someone else’s money.” But the germ of cooperation on near term projects was there, he noted, and the Coalition has added a different and valuable flavor. “It all points to the notion, can we do some things to show we can do anything? … It might even show the skeptics in the Delta that is possible to do stuff on water reliability and ecosystem that will not result in instant destruction of Delta society as a whole.”
Mr. Ray said they would focus on the framework, tease out alternatives, and continue conversation with colleagues and stakeholders on the range of actions and return at the December meeting.
AGENDA ITEM 9: IMPLICATIONS OF ARMY CORPS POLICY ON LEVEE ENCROACHMENT RULES
In August, the Army Corps removed seventeen levee systems from the Delta and the Central Valley from active status, making them ineligible for disaster recovery assistance among other items. Eric Nichol, Senior Engineer at the Delta Stewardship Council said the action precipitated the desire to have a broader discussion as to what impacts and relevance does that have to the Delta and flood risk reduction. And it also begged the larger question, what is the broader universe of flood disaster recovery assistance programs available to the Delta? Besides the Army Corps PL 84-99 program, FEMA also has a program that offers flood disaster recovery assistance that has a different set of criteria. Another concern is any relevance, interplay, or concerns in regards to flood insurance in the Delta, Mr. Nichols said.
Sitting on the panel for this portion of the meeting was Ryan Larson, acting Levee Safety Program Manager for the Army Corps of Engineers; Len Marino, chief engineer for the Central Valley Flood Protection Board;John Christianson from FEMA, a representative from CAL-EMA, and Kathy Shaeffer with National Flood Insurance Program’s mapping division.
Ryan Larson, Army Corps of Engineers:
In August 2012, the Army Corps sent a letter to Central Valley Flood Protection Board notifying them that 17 levee systems within the Central Valley and the Delta were unacceptable and would be classified as inactive in the Army Corps rehabilitation and inspection program known as PL 84-99. Five of the seventeen systems are within the Delta, affecting 62.1 miles of levees. These levees were found to have deficiencies of erosion and encroachments, such as pipes, structures, fences, pools, stairways, and other excavations.
Levee inspections by the Army Corps between 2010 and 2012 uncovered deficiencies that were considered unacceptable at the time, but these levees were allowed to remain active because the deficiencies fell within the Central Valley Flood System improvement framework. The framework allowed these levees to remain active in the program while these issues were being addressed through development of the Central Valley Flood Protection Plan. However, once the Plan was developed and adopted, it did not lay out the same assurances that the framework gave and therefore the Army Corps was no longer able to extend protection to those levee systems which were deemed unacceptable yet had been allowed to remain active, said Mr. Larson.
Councilman Don Nottoli asked if historic towns and other structures that have been there for a hundred years were the cause of any deficiencies, and Mr. Larsen answered that in all cases, the Corps refers to the “as-built drawings” that are handed over to the agency responsible for maintaining the levee. “If something has been there and we can still see today that it is being operated safely, it’s not a threat to the levee, those are not deficiencies or unacceptable items,” said Mr. Larsen.
Len Marino, Central Valley Flood Protection Board:
Len Marino, Chief Engineer for the Central Valley Flood Protection Board said that after the Board receives the inspection report, it is distributed to the local levee maintaining agencies. The Board then follows up with the local maintaining agency to be sure there is a plan to implement repairs or whatever is needed to remove identified deficiencies.
Mr. Marino explained that the levee inspection is basically a winnowing process. The Army Corps inspects the levees with three people walking the levee, one at each of the toes of the levee and one walking on the crown, moving down the levee in triples and identifying anything in their path that doesn’t fit the standard of what a levee should look like. The inspectors identify a lot of things, but don’t distinguish between permitted and non-permitted encroachments, and so all are included in the draft report. It is then up to the Flood Protection Board and the local levee maintenance partner to winnow out those deficiencies that were identified by the Corps but have encroachment permits and therefore should not be included prior to the report’s completion.
The next step is to determine if the permitted encroachments are in compliance with the permit that was issued. A lot of deficiencies that resulted in the levees being removed from active statue were because of pipes going through the levees for irrigation purposes. Out of all of the deficiencies, not any of them was due to vegetation nor any legacy structures: “Far and away it was pipe penetrations proceeding through levees from irrigation systems in fields,” Mr. Marino said. A lot of the deficiencies were easily corrected, and already seven of the seventeen identified levee systems are up for reinspection, he said, noting that this work was completed within 45 days. (The systems up for reinspection are in the Central Valley, not the Delta.)
In Maintenance Area 9, also known as Sacramento’s Pocket Area, there are numerous swimming pools, even one right up against the toe of the levee. Regulations are that you can’t have anything 10 feet landward of the toe of the levee, Mr. Marino noted. The Flood Protection Board is putting together a program for dealing with these swimming pools.
As for the levees deemed inactive, the process for regaining eligibility is laid out in a November 2011 Army Corps document called the System Wide Improvement Framework (SWIF), Mr. Marino said. Once the non-federal levee maintaining partner submits a letter of intent to file a SWIF Plan and it is accepted by the Army Corps, the levee system in question is immediately restored to active status for 2 years, during which time a plan must be developed for restoring the levee to standards. The Flood Protection Board is assisting the local partners to facilitate the process: “I put together a team of technical experts to assist the local maintainers with this, and we’re going to be busy for the next couple years,” said Mr. Marino.
Mr. Marino says he believes they can integrate the SWIF production process with the Central Valley Flood Protection Plan so there won’t be any wasting of resources. “The state believes that the CVFPP is a holistic remedy to cure all the ills of the levees over a very long period of time 20 – 25 years. It’s going to cost a lot of money, $14 – $17 billion over 20 to 25 years. Where the money is going to come from, that hasn’t been identified yet, but we’ve got to start somewhere. In the interim, we owe it to our local partners to offer our assistance in getting them back in the federal program and that’s exactly what we intend to do.”
The Central Valley Flood Protection Plan that was adopted in 2012 is essentially a ‘plan to make a plan’, Mr. Marino said, but the Corps wants compliance more quickly. So the job is to figure out the projects, the financing, strategies, for both the short and long term: “We do not have conflicting views. The Corps, the CVFPB, the local maintaining partners all have the same objective in mind: public safety and flood control. We may not completely agree on the pathway to get there, but we all have the same objective.”
Ultimately, a long-term comprehensive flood protection plan is needed, as the models show that the Central Valley Flood Protection Plan system would work much better than what is there now, Mr. Marino said; the SWIF process is a quick fix.
Mr. Nichols then noted that the levees discussed by the panelists up to this point were ‘project levees’ which protect urban areas and important infrastructure. However, most of the levees in the Delta are non-project levees. The other major program that offers flood disaster recovery assistance is FEMA’s public assistance program, which requires local reclamation districts to meet levels at the HMP criteria to be eligible for FEMA’s public assistance.
John Christiansen, Public Assistance Division, FEMA Region 9
FEMA’s Public Assistance Program provides financial assistance to state and local governments including reclamation districts, and there is funding available for levees inside the Delta, Mr. Christiansen said. The criteria are laid out very well in a Memorandum of Understanding with the state of California dated March of 2010 that specifies the geometrical criteria, including height, slope, and revetment. FEMA relies on reclamation districts to conduct their own annual inspections and every 5 years have profiles and cross sections prepared for their infrastructure. This data needs to be provided at a time of a disaster event in order to assure that those facilities are eligible for funding.
The representative from CAL-EMA said that there is a Memorandum of Understanding that is specific to the legal Delta. The DWR Subventions Program puts out money for reclamation districts raise levees to meet the HMP standards, and once they achieve that they will be eligible for flood disaster for assistance through FEMA. However, once a levee meets the PL 84-99 standard and is accepted into the Corps program, it will remain a Corps levee and will not be eligible for FEMA assistance if damaged.
Not all reclamation districts have been able to meet HMP standards due to lack of funding or time. However, they can become eligible for assistance from FEMA if they do a survey of their entire levee reach, note all of the deficiencies, and complete an annual maintenance plan that includes identification of deficiencies and how they will be addressed. Deficiencies need to be addressed within a year, and if not, an explanation is needed as to the priority of risks and why that deficiency might not have been addressed.
Kathy Schaefer, National Flood Insurance Program
Ms. Shaffer oversees production of flood insurance rate maps. The administering and the changing of the maps for the National Flood Insurance Program is a very slow and deliberate process by design. In regards to the levees that are shown on the map: “To frame the levee issue, you start at the lowest level with the HMP, and move up to the criteria for the PL 84-99. The FEMA accreditation or certification process for the levees to be shown as accredited on a FEMA map is much more stringent. The requirements for meeting accreditation are spelled out in the code of federal regulations; they haven’t changed in 20 years, and there’s no expectation at this time that they’re going to change.”
Within the heart of the Delta, most of the levees have already been de-accredited and the area is shown on the map to be in the special flood hazard area. Homeowners within the special flood hazard area are required to purchase flood insurance if they have a federally backed mortgage, and if they substantially improve their existing home or build a new home, they are required to elevate their home above the base flood elevation. The Pocket area and areas in Stockton are mostly out of the special flood hazard area.
FEMA will be asking the certifying entity if they will stand by their certification, and if it is revoked, FEMA will proceed with remapping the area. However, remapping is, by design, a very slow and deliberate process, and Ms. Shaefer said the agency will wait for the Central Valley Flood Evaluation and Delineation Program to be completed before proceeding with the remapping process.
Currently, FEMA is reviewing policy of mapping behind levees and everything is on hold until new guidance is received, which is expected by the end of the year. It is anticipated that the new guidance will provide more flexibility on how the agency looks at levees. In the past, levees that were not certified were left off of the maps as if they weren’t there; the new policies are expected to provide more flexibility to consider other factors. However, “it will be several years before there are any changes to the maps in the Central Valley for practically any reason,” said Ms. Shaefer.
The “Bear Creek Eight”:
San Joaquin County Supervisor Frank Ruhstaller spoke during the public comment period about the “Bear Creek Eight”, referring to eight homes in a subdivision of 200+ homes that live next to a levee. These homeowners have built encroachments, some of which were permitted and some that were not. One of the eight homeowners has a swimming pool up against the toe and refuses to do anything about it, and so now everyone in the subdivision is paying for flood insurance. “I’ve suggested the homeowners buy this house, fix the pool, and the sell the house would cost them less,” Mr. Ruhstaller said. The state needs to step in a tell people they have a set period of time – 30 to 90 days – to cure the problem, and if not, the state needs to let us have the authority to go in and fix it.
Len Marino said that there have been several enforcement hearing and actions open on all eight of the homeowners and that one homeowner now is in complete compliance. He noted that some of the encroachments were permitted in the mid 90s with a different board and were not reviewed or approved by the Army Corps. The current board has done a ‘mea culpa’, Mr. Marino said, and has agreed to step in a fix these encroachments at no cost to the homeowners. However, “if they do not accept our settlement offers, we’re going file lawsuits and start a full blown enforcement action, limited only by our budget,” said Mr. Marino.
Mr. Marino noted that the Central Valley Flood Protection Board had researched the situation and found that when the subdivision was in the initial planning stages, the existing right of way map at the time showed an easement from the Sacramento San Joaquin Drainage District. The easement line was shown on the tentative map, but when the final maps were prepared, the easement line had disappeared. These final maps were recorded at San Joaquin County, the homes were built and the property owners received title and a plot map that did not show the easement line. The homeowners are now filing lawsuits against the title company as well as the County. Although the tense legal issues are part of the problem, “we are completely motivated and fixated on getting these 8 homes fixed and back in the PL 84-99 program,” Mr. Marino said.
Click here for the staff report, Implications of Army Corps of Engineers levee encroachment rules
Click here for a map of the levee systems affected by the expiration of the framework.
Click here to read the letter from the Army Corps of Engineers to the Central Valley Flood Protection Board notifying them of that the 17 levee systems were being removed from active status in the PL 84-99 program.
Click here for Supervisor Ruhstaller’s written talking points submitted to the Council.
IN OTHER COUNCIL NEWS:
DELTA PLAN UPDATE: Delta Plan Manager Cindy Messer updated the Council on the progress of the final draft Delta Plan, the rulemaking process, and the supplemental EIR. While the Delta Plan and the rulemaking package are proceeding on a timely basis, the Supplemental volume of the draft EIR has fallen behind schedule. Executive Officer Chris Knopp said during his report to the Council that the consultant has let the deadline slip but has not said why: “It’s an unusual circumstance to be sure, and one that deserves some serious investigation on our part.” The projection now is that the document will not be ready until the end of November, although there is no commitment from the consultant to that date yet either. Executive Officer Chris Knopp is scheduling a meeting with the consultant to discuss the situation.
“I am more than unhappy, and if this were the first occasion, I might be prepared to accept it but it is not,” said Chair Phil Isenberg, who wants written assurances of performance and written assurances of notice of problems from the consultant.
IMPLEMENTATION COMMITTEE FOR THE DELTA PLAN: Executive Officer Chris Knopp updated the Council on the status of the formation of the Implementation Committee for the Delta Plan. “The most important thing we have to do right now is work out the details of how this Council and the staff is going to work with other agencies, and that’s the Implementation Committee. To that end, we need to get moving on that and do it now, and we’ve started and we’ve begun.” The initial meetings, tentatively scheduled for early February, will bring the agencies responsible for action in the Delta together, define what the roles and responsibilities of the members will be, and determine what products will be expected from the Committee.
SCIENCE AND ADAPTIVE MANAGEMENT: “Our ultimate success in the Delta is based on a foundation in science,” said Executive Officer Chris Knopp in his report to the Council. He said that after attending the Conference, he feels that science in the Delta is in very good hands. There is tremendous support and a strong, fundamental desire to build a scientific basis, but what is lacking at this point is the coordination to pull it together: “It’s absolutely essential that we build that foundation, and the foundation is based on research, monitoring, analysis of that data, and data management. Those things have to all fall into place to have a coordinated, efficient program among all the agencies, state and federal, that are working in the Delta,” said Mr. Knopp. “Adaptive management is absolutely essential to our ultimate success; it’s based on sound science and cooperation among all of the agencies. We’ve got to get that in place and moving.”