The San Benito County Board of Supervisors unanimously approved Sept. 10 to move forward with repairs of two breeched levees along Pacheco Creek. They also approved a budget augmentation of $350,000, and authorized Jaime De La Cruz, as the board’s chair, Joe Paul Gonzalez, county auditor, and Ray Espinosa, county administrative officer, to execute the augmentation. Work will not begin, however, until a contractor is chosen, and then approved during the next regularly scheduled meeting, Oct. 24, if not sooner.
The decision came about after a number of supervisor meetings at which Kevin O’Neill, director of the county’s Office of Emergency Services (OES), gave progress updates on working with state and federal agencies to repair damages from the January floods in the Lovers Lane area. While some temporary improvements have been made to roads and bridges, no work has begun on the levee system. The most recent effort to nudge the county forward came Monday night, Oct. 9, when Supervisors Mark Medina, whose district includes the Lovers Lane area, and Robert Rivas held a town hall meeting where residents and landowners of the affected area expressed their frustration and dismay at nothing having been achieved in nine months.
Even though the board ultimately voted to fund repairs to the levees, they readily admitted that the repairs would be temporary, at best, and most likely ineffectual, at worst. This was because the State Department of Fish and Wildlife is preventing any work to clean out creeks, which has not been done in decades. County officials and landowners agreed this has to be done either before or during the levee repairs. If not, most believe the levees will fail again when the rains come.
At the town hall meeting, Medina described any repairs as a Band-Aide. During the supervisor meeting, he called what they were proposing a triage, even reading the definition of what a triage is. He and the others agreed that repairing the levees could open the county to litigation because only one landowner out of possibly as many as 14 had signed an indemnification agreement at the conclusion of the town hall meeting.
At the town hall meeting, Barbara Thompson, acting county counsel, explained that the county had attempted to negotiate the language of the indemnification agreement with landowners to little avail. She said the agreement had been amended to release the landowners from being responsible for repairs and maintenance of the levees because of the technical nature of the work and cost, as well as a requirement to inspect the levees once a year. She also said the county was no longer asking landowners to form a water district or levy taxes on themselves. However, she said a district and taxes will mostly likely have to be addressed in the future.
Thompson went on to explain that wording was added to indicate landowners disagreed that they own the levees and, therefore, are not responsible for them. She said if the county were to begin work on the levees it would be required to give seven days written notice to the landowners describing the work to be done. The landowners, though, could refuse to allow the work to be performed. In any case, if the work is not completed by March 1, 2018, the agreement would be terminated.
She described the agreement as being broad in scope, with a $50,000 cap that each landowner might be responsible for before the county would be have to pay against any claims against it. She recognized $50,000 would be a lot of money to an individual landowner, but if there were a major breech again, the county would also be liable, explaining, “…we’ll all be in the situation together.” She described the agreement as a compromise in which landowners probably would not be happy with all of the provisions and the county would want even more indemnification and no caps.
Resident Candice Hooper-Mancino challenged one line item in the agreement that stated landowners had ample opportunity to consult with attorneys. She said they had just received the agreement, so that was not possible. Thompson answered that only minor changes had been made to the agreement, which had been sent out to landowners the previous week.
Most in the room maintained it would do no good to repair the levees unless the creek was cleaned out first, from Lovers Lane to Pacheco Reservoir. Mark Schroeder thought the county should have no problem obtaining permits from Fish and Wildlife to clean out the creek. Rivas countered that it was not easy to do so. Schroeder wondered if the county was capable of convincing Fish and Wildlife of the need to clear out the creek and whether the county was even capable of doing so. Rivas responded that his main concern throughout the process was minimizing liability to the county.
“This is a situation that is ripe for government inefficiency and waste, and bureaucratic red tape,” he said. “I have an issue of throwing money at problems that don’t have comprehensive plans. Why take the risk of moving forward when the work that needs to be addressed isn’t going to solve the problem?”
He said what he has learned over time is that everything that has been discussed so far involved doing work on the levees “from the water up,” when they should be looking at the problem from the bottom of the creek to the top of the levees.
“I have no problem allocating money to clear out that creek and doing the job right,” he said. “I feel there’s minimal liability if we fix the problem correctly, but working with the state and Fish and Wildlife is going to require a huge effort on our part as a county, on your part, and in lobbying our representatives.”
John Guertin, head of the county’s Resource Management Agency, said he has communicated with Congressman Jimmy Panetta’s office of possibly streamlining the process of working with Fish and Wildlife, but came away with the impression Panetta was not optimistic, but is willing to help where he can. Guertin said the county cannot clean the creek without permits. Someone in the audience asked what the consequences would be if the county went ahead without permits. Guertin responded the county could be fined up to $10,000 a day. When asked if anyone knew who was legally responsible for the creek bed, Medina said he had not been able to make that determination, but was corrected by counsel and then said, as he understood it, the property owners do own the creek alongside their property. The landowner was obviously frustrated at the realization that he owns part of the creek, but is not allowed to go into it unless the government gives him permission to do so.
For the remainder of the meeting, it was clear that there is nothing easy about working with state and federal agencies to accomplish what once was possible for a farmer to use his own bulldozer to clear out brush and trees from a creek. By the end of the meeting, all Medina could say was that there would be only two choices at the next day’s supervisor meeting: they would either vote to repair the levees, or they wouldn’t.
In a nearly empty room the next morning, after it was again agreed the supervisors had little choice but to repair the levee, and even then, they admitted it was probably not the best choice, Medina made the motion to move ahead to do so while the staff would research how the county might approach Fish and Wildlife to secure permits that would allow the county to clean out Pacheco Creek.
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