Business / Economy

Sups seek to avert liability in repairing levees, reform defunct property-owner supported water district

Trying to beat the coming rainy season, county supervisors push forward repairs of levees, while moving to shift cost burden to landowners by restarting Pacheco Storm Water District.
Photo by Noe Magaña

Corrected Story

Eight months after flooding in the Lovers Lane area of northern San Benito County due to drenching rains and multiple levee breaks, the county is still struggling with what it should do to prevent future flooding as the next rainy season approaches. County supervisors discussed at length Sept. 12 several options, one of which was to do nothing and let the chips fall where they may at the expense of residents. They ultimately decided to attempt to get residents to release the county from possible blame and will hopefully come back to vote on repairs at a special meeting.

Before the discussion even began, Supervisor Anthony Botelho recused himself because he owns property in the area. James Poulfer, Resources Management Agency, listed three possible directions for the supervisors to consider. The first was to fund repairs through the USDA, the second was for the county to pick up all costs, and the third would be to do nothing or “no build.”

Poulfer reminded the supervisors of the magnitude of flooding from Pacheco Creek in January and February, caused primarily by breaks in the 1940s era levee system. He said there were two breaks, one approximately 104 feet long and the other 80 feet. He said he would return at a future date with an agenda item to repair roads in the area, but was looking for guidance on what to do about the levee. He said any significant rainfall would cause flooding through the existing breaches.

Supervisor Medina asked why the county would even consider a no build option. Joe Paul Gonzalez, county clerk, auditor, recorder, said if the county does nothing it would assume no risk and would not be liable for third-party claims. Medina asked that if the county does nothing and there is another flood, would it not be responsible for further damages. Gonzalez said in March the county’s insurance changed and now covers up to $3 million, with a $500,000 deductible, to cover public infrastructure only. He said that figure could change the next fiscal year because of the disasters in Texas and Florida. Supervisor Jaime De La Cruz asked Gonzalez if the county repaired the levees now and they broke three years down the line, would the insurance cover it. Gonzalez said it would, but Barbara Thompson, county counsel, corrected Gonzalez by asking him if he meant the insurance would cover homes. Gonzalez said it would not. He said it would only cover the county when homeowners sue it by providing money to defend itself against the claims.

Gonzalez took the conversation into another direction when he told the supervisors that the levees had once come under the jurisdiction of the now defunct Pacheco Storm Water District, which owned the right-of-ways to access the levees. He explained that even though the levees were on private property they were once part of the water district.

Medina warned if nothing is done, the county would be dealing with the same issues year after year. He said the county would spend a lot of money and expend resources while not addressing the real issue, which was to repair the levees. He said even if the county could not be held liable it would still be continuously repairing roads and bridges. Supervisor Robert Rivas said he wanted to bang his head against a desk because the issue was rife with bureaucratic red tape. He said common sense would dictate that the county should fix the problem, but understanding the liability is important because taxpayers would be on the hook for millions of dollars.

“The whole issue revolves around these levees that are controlled by various private property owners,” he said. “If we invest the amount of money that’s necessary and next year we get even harder rain storms, and the levees flood once again, the county is on the hook. What would prevent a property owner from suing the county because we did a poor job of cleaning them up?”

Thompson told him there could be potential lawsuits because the county would only be repairing some parts of the levee while other parts could break, which could result in lawsuits claiming the county’s work somehow caused the breaches. Rivas wondered if property owners signed indemnification agreements if the county might not be held responsible. Thompson said that could be an option.

Supervisor Jerry Muenzer said it was his belief that the water district was inactive because there were no board members. Gonzalez explained that the landowners make up the district and no elections have been held in many years. Muenzer wondered if the landowners could simply elect a board from among themselves in order to oversee the levees. Gonzalez said the county clerk or himself could hold an election on behalf of the landowners. Muenzer said it’s important for the landowners to participate and reenergize the district in order to take on the responsibility for its repair and upkeep.  

Supervisor Jaime De La Cruz said he wanted the levees fixed, but the discussion needed to include risks and liabilities, and agreed with Muenzer that landowners need to participate. Gonzalez concurred that it would benefit the county to reactivate the water district, so the landowners could formally assess themselves and pay whatever fees they agree to in order to maintain the levees. He said the reactivation would only be the first step. The second step would be to determine the cost of repairing the levees, and at that point, the county would have to assist in the fee collection process. De La Cruz asked if the landowners choose not to form the water district would the responsibility for repairs fall on the county. Thompson answered by bringing up the fact that there is not enough time to form a district before repairs had to be made.

Medina said the issue was a slam dunk for him: He wants the levees repaired. Then he asked if the county had ever cleaned out the levees. When no one responded, he said he knew the county had done some cleaning and questioned whether or not that showed ownership on the county’s part. De La Cruz told Medina that no one disagreed with him in the need to help people, but that risk was the reality.  

Ray Espinosa, county administrative officer, wanted everyone to understand that whether the USDA paid for the repairs, the estimated cost was $222,000 or if county paid it would be $491,500 both would come out of contingency funds. There would also be federal guidelines under the second option. It would take longer to obtain the federal funds, where as if the county paid for the repairs work could begin by early October.

Muenzer said he realized the water district could not be formed in time, but what he wanted to hear from the landowners was that they are committed to reactivating it and working with the county. He wondered if funding repairs would be similar to forming a homeowners association (HOA) and if funding would end up on their taxes or would they simply send each other letters and bills similar to an HOA. Gonzalez did not know how to advise him. He said to Medina that the board has to be active in relaunching the water district that would be responsible for long-term maintenance.

Rivas hoped that county staff would interact with residents in the area to discuss the indemnification process. He said unless they agree to sign on to indemnification, he would not approve moving forward with any option.

Resident Ken Perry said he is one of the largest landowners in the area. He said a few years ago he tried to get on the water district board, but said he couldn’t because he doesn’t live there. He said he had spent $50,000 because of flooding. He questioned the wisdom of repairing the roads and houses if the county was not going to fix the breaches.

“I think it would be a shame if this board does not find a way to fix this,” he said and added that when past breaches happened the board and the county worked together to repair them, and then went to the federal government for refunding. “Those were the right things to do and to not fix this thing and not accept money from the government is absolutely irresponsible.”

Organic farmer Grant Brians said he sustained about $100,000 in damages to his farm land, not because of the breaches, but because of the creek not being cleaned out for more than 20 years. He said the levees west of San Felipe Road had not breached since they were constructed in the 1940s. However, he said they were being worn away because there was no funding mechanism to pay for maintenance. He said when the water district was first formed in the 1930s all the landowners were family farmers. Prior to 1980, the farmers did the repairs. He said they can no longer do that because of state water district rules and the California Department of Fish & Wildlife. He recommended the county fund the repairs, while reforming the water district.

Candice Hooper said she was not present as the district attorney but as a resident of Lovers Lane. She said she understood the board was concerned about cost, but it should be looking at how much it cost the county during the flooding. She estimated costs as high as $2 million.

“Weigh that cost because if you don’t spend the money to fix the levee you’re going to be spending it in emergency services,” she warned. “Let’s get this levee fixed so my poor neighbor who has fixed their house doesn’t lose it again. The stories out there are horrendous. We’re running out of time because the rains are coming.”

Mahassa Altafi, owner of Dara Farms, where the largest breach happened, said even though the levees are on private property it is not a private issue, but a public issue because the county exists to serve the public. She said to consider not fixing the levee is atrocious and that she is willing to sign any indemnity to release the county from possible liability. She said she cooperated with the county, allowing workers to cross her property to work on the levee, but when the weather degraded they stopped and nothing has been done since then.

Chuck Lenzi has 40 acres along San Felipe Road and said the levee along his property breached in February and he worked with Kevin O’Neal, Office of Emergency Services, to allow equipment to come on his property. He said Granit Construction’s heavy equipment badly damaged his property and compromised the levee. He said the breach is now about 125 feet and that water rushing through has rerouted the creek in a gorge almost 30 feet wide, 10 feet deep and some 300 feet onto his property.

“We are still living seven months later with most of the debris scattered over our property,” he said. “This needs to be cleaned up and the breaches need to be repaired.”

Rivas reiterated that before anything can be done, county staff needs to approach the residents about indemnifying the county. Da La Cruz said the levees need to be fixed before the rains come. Muenzer emphasized the board needed to make its decision immediately, use county money to do it, and work out the details on indemnification and forming the water district later. He made a motion to that effect. De La Cruz said he would go along with the rest of the board, but if something bad happens when the rains come, he will not be supportive again. Rivas said he could not support moving forward at all unless there is indemnification.

The board directed staff to begin meeting with residents to discuss indemnification and to report back to the board as soon as possible. De La Cruz added that the county could move forward with the possibility of using contingency funds. He said if staff was able to get back to the board quickly he would call for a special meeting next week.


Correction: This story has been corrected. A decision on levee management was pushed forward to the week of Sept.18. Supervisors did not vote to repair the levees at the meeting. They voted to gather more information before moving ahead.   

John Chadwell

John Chadwell is a freelance photojournalist with additional experience as a copywriter, ghostwriter, scriptwriter, and novelist. He is a former U.S. Navy Combat Photojournalist and is an award-winning writer, having worked for magazine, newspapers, radio and television. He has a BA in Journalism and Mass Communications from Chapman University and graduate studies at USC Cinema School. John worked as a scriptwriting consultant, and his own script, "God's Club," was produced and released in 2016. He has also written eight novels, ranging from science fiction to true crime, which are sold on Amazon. To contact John Chadwell, send an email to: [email protected]