DRAFT - revised
A Publication of the County Executive Office/Legislative Affairs
February 26, 2013
Item No. 50
Vol. IX, No. 4
County of Orange Positions on Proposed Legislation
The Legislative Bulletin provides the Board of Supervisors with analyses of measures pending in Sacramento
and Washington that are of interest to the County. Staff provides recommended positions that fall within the
range of policies established by the Board. According to the County of Orange Legislative Affairs Procedures
adopted by the Board of Supervisors on June 3, 2003, staff recommendations for formal County positions on
legislation will be agendized and presented in this document for Board action at regular Board of Supervisors
meetings. When the Board takes formal action on a piece of legislation, the CEO will direct the County’s
legislative advocates to promote the individual bills as approved by the Board. The Legislative Bulletin also
provides the Board of Supervisors with informative updates on State and Federal issues.
The 2013 Legislative Platform was adopted by Board of Supervisors’ Minute Order dated
November 20, 2012.
On February 26, 2013, the Board of Supervisors will consider the following actions:
RECOMMENDED ACTIONS
1. Governor’s FY 2013-14 Proposed Budget: Administration of Justice
a. OPPOSE – Proposed Reductions in Revenue to the Community Corrections Performance
Incentive (SB 678)
2. SUPPORT – AB 116 (Bocanegra) Land Use: Subdivision Maps: Expiration Dates
3. SUPPORT AND AMEND – AB 195 (Hall) Counties: Construction Projects: Design-Build
4. SUPPORT/SPONSOR – SB 298 (Wyland and Walters) Local Government: Supplemental
Law Enforcement Services
5. OPPOSE UNLESS AMENDED – State Water Resources Control Board’s Wetlands Area
Protection Policy
6. OPPOSE UNLESS AMENDED – National Marine Fisheries Service New Policy on Flood
Channel Maintenance Impacts on Endangered Species
7. OPPOSE – Environmental Protection Agency and Corps of Engineers Headquarters Waters
of the United States Draft Guidance Document
8. SUPPORT – H.R. 399 (Rep Matsui) Levee Vegetation Review Act of 2013
9. Receive and File Legislative Bulletin
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SACRAMENTO LEGISLATIVE REPORT
ACTION ITEMS
Governor’s FY 2013-14 Proposed Budget: Administration of Justice
a. OPPOSE – Proposed Reductions in Revenue to the Community Corrections
Performance Incentive (SB 678)
Community Corrections Performance Incentive (SB 678) – This program provides funding to
counties for provision of evidence based practices and supervision with the intent of reducing
recidivism and, in turn, the State prison population. The proposed budget reduces the total statewide
allocation to counties from $138 million in FY 2012-13 to $35 million in FY 2013-14. Orange County’s
allocation is expected to be reduced from $6.5 million to $1.2 million.
SB 678 was approved by the Governor on October 11, 2009, and sunsets on January 1, 2015. SB
678 provides funding to counties to improve local probation supervision practices to reduce recidivism
and, in turn, the State prison population.
The Governor’s Proposed FY 2013-14 Budget significantly reduces SB 678 funding. The funding is
being reduced as a result of implementation of AB 109, which also provides funding to counties to
reduce the State prison population. The thought process was that with implementation of AB 109,
over time, counties would no longer need SB 678 funding because the population being served using
SB 678 revenues is the same as that being served by AB 109; however, that is not the case.
SB 678 funds are used by Probation to cover the cost of regular and special (e.g., sex offenders,
gangs) adult field supervision. AB 109 funds can only be used for the AB 109 population
(Postrelease Community Supervision and Mandatory Supervision), and cannot be used for the
regular/special adult field supervision populations [Government Code Section 30025(11)]. In order for
AB 109 monies to be used for the SB 678 population, the SB 678 probationer would have to reoffend
and be sentenced consistent with AB 109.
The Governor’s FY 2013-14 Proposed Budget includes a statewide reduction in SB 678 funding from
$138 million in FY 2012-13 to $35 million in FY 2013-14. Chief Probation Officers of California
(CPOC) is aware of the proposed reduction and is working with the State to increase the statewide
allocation.
Probation and CEO/Legislative Affairs Comments
Probation and CEO/Legislative Affairs staff recommends your Honorable Board oppose the
Governor’s proposed reduction to SB 678 revenues. The State failed to recognize that AB 109
monies cannot be used for the SB 678 population. The proposed reduction will result in a loss of $5.3
million in SB 678 funding to OC Probation. As an alternative, the State should allow for the use of AB
109 monies for the current SB 678 population by amending Government Code Section 30025(11) to
allow for such. In addition, the sunset date for SB 678 should be extended.
This reduction in SB 678 funding could see the loss of four adult field supervision units (approximately
49 positions) and the inability for OC Probation to actively supervise approximately 3,533 adult
probationers.
A reduction in adult supervision would also result in the loss of Fines/
Forfeitures/Penalties (FFP) revenue. A reduction in the number of actively supervised cases would
result in a decrease in revenue as the cost-recovery associated with supervision is higher for actively
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supervised cases than administrative cases. Those who are actively supervised are required to
report to their Deputy Probation Officer on a regular basis, at which time they are also seen by a
Collections Officer to ensure restitution and FFPs are paid. If these cases are not actively
supervised, restitution payments and FFPs may decrease. The current year FFP revenue budget is
over $3 million.
AB 116 (Bocanegra) Land Use: Subdivision Maps: Expiration Dates – As Introduced on
January 14, 2013 – SUPPORT
Author:
Assembly Member Raul Bocanegra (Principal coauthor: Assembly Member Torres)
(Coauthors: Assembly Members Achadjian, Atkins, Bonilla, Eggman, Frazier, Hagman,
Hueso, Maienschein, Olsen, and Rendon) (Coauthors: Senators Correa, Lieu, and
Padilla)
Status:
Assembly Local Government Committee
Hearing Date: TBD
Reviewed:
OC Public Works CEO/Legislative Affairs
Under current law, the Subdivision Map Act vests the authority to regulate and control the design and
improvement of subdivisions in the legislative body of a local agency, and sets forth procedures
governing the local agency's processing, approval, conditional approval or disapproval, and filing of
tentative, final, and parcel maps, and the modification thereof. The act generally requires a
subdivider to file a tentative map or vesting tentative map with the local agency and the local agency,
in turn, to approve, conditionally approve, or disapprove the map within a specified time period. The
act requires an approved tentative map or vesting tentative map to expire 24 months after its
approval, or after an additional period of time prescribed by local ordinance, not to exceed 12 months.
However, the act extends the expiration date of certain approved tentative maps and vesting tentative
maps.
Assembly Bill 116 would extend by 24 months the expiration date of any approved tentative map or
vesting tentative map that has not expired as of the effective date of this act and will expire prior to
January 1, 2016.
OC Public Works and CEO/Legislative Affairs Comments
OC Public Works and CEO/Legislative Affairs recommend that your Honorable Board take a Support
position on AB 116. As the economy continues to recover, the proposed expiration date would allow
developers to keep their projects alive during these difficult economic times while they complete the
requirements necessary for final maps. Until the demand for new housing resumes, developers are
not likely to complete the required conditions of their tentative maps and qualify for final maps. With
statutory time limits looming, some risk losing their earlier approvals and having to start over again.
Overall, there are 3,000 active tentative tract maps representing approximately 400,000 housing
units. The County has seven maps that would benefit from the time extension. This bill will help
ensure these important housing projects stay alive and builders and developers do not lose significant
economic investments made to-date by forcing the project proponent to begin the costly entitlement
process anew. Additionally, these projects represent thousands of construction related jobs and
billions of dollars in economic output.
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The State has previously extended the expiration date five times, with the most recent occurring in
2011 with AB 208 that provided for a January 1, 2014, expiration date.
AB 195 (Hall) Counties: Construction Projects: Design-Build – As Introduced on January 28,
2013 – SUPPORT AND AMEND
Author:
Status:
Hearing Date:
Reviewed:
Assembly Member Isadore Hall
Assembly Local Government Committee
TBD
OC Public Works, John Wayne Airport, and CEO/Legislative Affairs
Current law authorizes counties, until July 1, 2014, to use alternative procedures, known as designbuild, for bidding on specified types of construction projects in the county in excess of $2,500,000, in
accordance with specified procedures. These procedures include a requirement for contracts
awarded after a certain date that a county board of supervisors pay a fee into the State Public Works
Enforcement Fund, which funds are continuously appropriated for the Department of Industrial
Relations’ enforcement of prevailing wage requirements on public works projects.
Assembly Bill 195, which is sponsored by CSAC, UCC and the County of Los Angeles, would extend
these provisions until July 1, 2020.
OC Public Works, John Wayne Airport, and CEO/Legislative Affairs Comments
OC Public Works, John Wayne Airport and CEO/Legislative Affairs recommend that your Honorable
Board adopt a Support and Amend position on AB 195.
Counties and taxpayers in general benefit from the use of design-build authority due to cost savings
produced by this method of project delivery. Under design-build, the owner contracts with a single
entity to both design and construct a project at a fixed price. The owner prepares documents that
describe the concept of the project and the desired outcome for the project. In addition to price,
proposals are generally evaluated on criteria such as best-value, qualifications and design quality.
To enhance the use of design build, the County offers the following amendments:


Amend the current language to expand the use of design-build contracts from just buildings
and wastewater treatment facility to include other infrastructure projects such as streets and
highways, flood control facilities, harbor facilities, etc.
Revise the dollar limitation on this authorization so that it applies to projects in excess of $1
million.
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SB 298 (Wyland and Walters) Local Government: Supplemental Law Enforcement Services –
As Introduced on February 15, 2013 – SUPPORT/SPONSOR
Author:
Status:
Hearing Date:
Reviewed:
Senate Members Mark Wyland and Mimi Walters
February 19, 2013 - From printer. May be acted upon on or after March 21.
TBD
CEO/Legislative Affairs
Existing law provides that a board of supervisors of a county, and a legislative body of a city, may
contract to provide supplemental law enforcement services to private individuals or entities at special
events or occurrences. However, there is no current authority for a county or city to provide ongoing
law enforcement services to a private entity in exchange for payment.
SB 298 would authorize a board of supervisors of a county, and a legislative body of a city, to
contract to provide supplemental law enforcement services to a homeowners' association on an
occasional or ongoing basis.
CEO/Legislative Affairs Comments
CEO/Legislative Affairs recommends that your Honorable Board take a Support position on SB 298
as it is a County-sponsored bill.
Currently, state law limits the ability of a homeowners’ association to pursue options for contracting
for law enforcement services. Orange County’s unincorporated areas are already patrolled by the
Orange County Sheriff’s Department (OCSD) for general law enforcement services. Due to their
close relationship with the communities in the unincorporated areas, the OCSD has unique
knowledge of the needs of each neighborhood in these areas. Providing private homeowners’
associations with the ability to contract with a county or city for law enforcement services can
enhance the type of service that will be provided, as well as save in costs.
State Water Resources Control Board’s Wetlands Area Protection Policy (WAPP) – OPPOSE
UNLESS AMENDED
Author:
Status:
Hearing Date:
Reviewed:
State Water Resources Control Board
Preliminary WAPP draft policy released January 28, 2013
TBD
OC Public Works and CEO/Legislative Affairs
The State Water Resources Control Board (SWRCB) and the Regional Water Quality Control Boards
(RWQCB) have traditionally relied on the federal Clean Water Act (CWA) Section 404 permit program
to regulate impacts to wetlands. As a result of recent Supreme Court cases limiting the federal
jurisdiction, the State of California is exerting its authority to regulate wetlands under the PorterCologne Act.
The SWRCB has developed a preliminary draft of the Water Quality Control Policy for Wetland Area
Protection and Dredged or Fill Permitting (WAPP). The WAPP could result in a new permitting
program duplicating and expanding on the federal CWA Section 404 permitting program.
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If finalized, local government may have to negotiate an additional regulatory permit from the State for
impacts to wetlands. This potential new permit would be in addition to current streambed/wetlands
permit requirements from both State and Federal agencies.
The process, cost, timelines, and requirements are unknown at this time.
OC Public Works and CEO/Legislative Affairs Comments
OC Public Works and CEO/Legislative Affairs recommend that your Honorable Board adopt an
Oppose Unless Amended position on the State Water Resources Control Board’s Wetlands Area
Protection Policy (WAPP)/preliminary draft policy released on January 28, 2013.
Staff recommends seeking changes to the policy that would provide streamlined permitting process,
exemptions for certain facilities such flood control channels, exemptions for routine maintenance,
limits on the definition of wetlands, simplified wetlands delineation process, defined timelines for
permit issuance, defined and limited compensatory mitigation requirements, financial feasibility
criteria, and seeking overall improvements in the permitting process.
Impacted departments are OC Public Works and others with projects that may impact wetlands
and/or waters of the state.
WASHINGTON LEGISLATIVE REPORT
WASHINGTON UPDATE
With just days left before the March 1, 2013, deadline to reach a deal when Congress, the question in
Washington is no longer whether the automatic spending cuts known as sequestration will be
implemented. Many in Washington are predicting that the budget cuts will at least temporarily go into
effect, casting potential chaos on departmental budgets and the economy as a whole.
Dividing the two sides are sharp differences over whether tax increases, which the President wants
and Republicans oppose, should be part of a budget deal. To date, House Republicans have
proposed an alternative to the broad, immediate budget cuts, targeting specific spending and
extending some of the reductions over a longer period of time. They also have said they are willing to
undertake changes in the tax code and eliminate loopholes and tax subsidies. However, they would
like to overhaul the tax system to reduce rates, not to raise revenue.
Prior to recessing, Senate Democrats proposed a package that would raise about $55 billion in new
tax revenues and cut $55 billion in spending to stop sequestration through the end of the calendar
year. The bill has little chance of passing even the Democratic-controlled Senate, as Republican
leaders are expected to block the measure due to the tax issue.
Government agencies now are preparing to absorb an $85 billion hit to their budgets, and lawmakers,
at least for now, seem willing to accept the consequences. The Pentagon recently notified Congress
that it will be furloughing its civilian workforce of 800,000 employees if sequestration goes into effect.
Pressure may intensify to pass sequester legislation in March as federal workers are furloughed and
Pentagon and other government programs are cut.
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ACTION ITEMS:
National Marine Fisheries Service New Policy on Flood Channel Maintenance Impacts on
Endangered Species – OPPOSE UNLESS AMENDED
Author:
Status:
Hearing Date:
Reviewed:
National Marine Fisheries Service (NMFS)
NMFS new policy on flood channel maintenance impacts on endangered species
TBD
OC Public Works and CEO/Legislative Affairs
Orange County Flood Control District must obtain Clean Water Act Section 404 permits for impacts to
wetlands (and Waters of the U.S.) to perform routine channel maintenance and to construct capital
improvements.
The National Marine Fisheries Service (NMFS) provides biological consultation under the
Endangered Species Act, to the Corps of Engineers when local agencies apply for Clean Water Act
Section 404 permits. NMFS’ Biological Opinion (BO) can result in a Jeopardy or No Jeopardy opinion
regarding the continued viability of the endangered species. The NMFS BO is a key approval
milestone in obtaining a Section 404 permit from the Corps of Engineers.
NMFS has recently begun to interpret continued maintenance of an existing facility as jeopardizing
the viability of endangered species and has issue draft Jeopardy Opinions for routine maintenance of
flood control facilities in the Santa Barbara County Flood Control District, Ventura Watershed
Protection District, and to the Corps of Engineers for their proposed maintenance activities. In
addition, The NMFS has issued a final Jeopardy Opinion to the Corps of Engineers for the Nationwide
Permit Program, a general permit program that streamlines approvals for minor and routine work.
The Corps has initiated re-consultation with NMFS for the Nationwide Permit Program and will
continue to issue authorization for work under the Nationwide Permit during re-consultation.
The concept of continued maintenance of an existing facility as jeopardy of a species is a departure
from traditional assessments. Typically, new construction is viewed as new impacts to species;
existing facilities has not been viewed as continued impact.
In the case of Santa Barbara Flood Control District, NMFS has issued a draft Jeopardy Opinion and
conditioned the agency to construct modifications of the existing debris basins to facilitate fish
passage. In Ventura, the Watershed Protection District has revised their maintenance permit to
exclude the activities that are subject to the draft Jeopardy Opinion and will address the activities
separately.
OC Public Works and CEO/Legislative Affairs Comments
OC Public Works and CEO/Legislative Affairs recommend that your Honorable Board adopt an
Oppose Unless Amended position on NMFS new policy on flood channel maintenance impacts on
endangered species. Staff recommends advocating NMFS to reevaluate its new policy that interprets
on-going maintenance of existing facilities as new impacts and hence jeopardy to species. In
addition, NMFS should not require local agencies to retrofit existing facilities when applying for
approvals for routine maintenance.
NMFS’ new policy could result in local agencies being required to fund (portions of) species recovery
plans in order to obtain permits for routine channel maintenance and capital improvement projects.
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Orange County Flood Control District is in the process to applying for region-wide maintenance
permits, including Section 404 permit from the Corps of the Engineers. Orange County has the same
federally listed endangered species (Steelhead) as Santa Barbara and Ventura and will likely
encounter the same Jeopardy Opinion and conditions to facilitate fish passage that the Santa Barbara
and Ventura have.
The new NMFS policy interpreting on-going maintenance of existing facilities as new impacts to
species and hence jeopardy will delay maintenance permits and increase cost to comply with the
requirements to retrofit existing channel to enable fish passage.
Environmental Protection Agency and Corps of Engineers Headquarters Waters of the United
States Draft Guidance Document – OPPOSE
Author:
Status:
Environmental Protection Agency (EPA) and Corps of Engineers Headquarters
Waters of the United States Draft Guidance Document is currently with the Office of
Management and Budget for review.
Hearing Date: TBD
Reviewed:
OC Public Works and CEO/Legislative Affairs
The federal Clean Water Act regulates impacts to Waters of the United States. Two recent Supreme
Court cases regarding isolated wetlands (Solid Waste Agency of Northern Cook County (SWANCC)
and Rapanos) limited the extent of the federal Clean Water Act jurisdiction.
In response the recent Supreme Court decisions, the Environmental Protection Agency and the
Corps of Engineers developed draft guidance on identifying waters protected by the Clean Water Act.
OC Public Works and CEO/Legislative Affairs Comments
OC Public Works and CEO/Legislative Affairs recommend that your Honorable Board adopt an
Oppose on the Environmental Protection Agency and the Corps of Engineers Waters of the United
States Draft Guidance Document.
The draft guidance document is vague and introduces new concepts for determining Clean Water Act
jurisdiction. Staff recommends advocating for the EPA and Corps of Engineers to undertake formal
and transparent rule making procedures to implement clarifications for determining Waters of the U.S.
In addition, any clarification by the EPA and Corps of Engineers should be adhere to the Supreme
Court decisions, and provide clear, reasonable, and predictable procedures for regulators and the
regulated community.
The draft guidance document has vague standards and thresholds. The lack of clarity could lead to
greater federal regulatory jurisdiction due to the potential for expansive interpretation by EPA and
Corps field staff. In addition, the document introduces new concepts for determining federal Clean
Water Act jurisdiction such as a species connection or a combination of similarly situated waters.
The vague language of the guidance document has the potential to expand Clean Water Act
jurisdiction over roadside drainage ditches and other similar infrastructure. While the SWANCC and
Rapanos Supreme Court cases were argued over the Clean Water Act Section 404 permit provisions,
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the draft guidance document regarding the definition of Waters of the U.S. will apply globally to all
sections of Clean Water Act. The full impact and unintended consequences are not yet known.
The Federal government estimates that the Clean Water Act jurisdiction will increase by
approximately 17 percent under the draft guidance document. In addition, the Federal government
estimates the annual costs (stream and wetlands mitigation and administrative costs) to be
approximately $87 to $171 million. This is the federal estimate on a national level and the impact to
Orange County is unknown at this time.
H.R. 399 (Representative Matsui) Levee Vegetation Review Act of 2013 – As Introduced on
January 23, 2013 – SUPPORT
Author:
Status:
Representative Doris Matsui
Referred to House Transportation and Infrastructure Committee - Referred to the
Subcommittee on Water Resources and Environment
Hearing Date: TBD
Reviewed:
OC Public Works and CEO/Legislative Affairs
The Corps of Engineers’ current levee vegetation management policy generally prohibits vegetation
on levees and areas adjacent to levees. The national policy does not consider the regional soil
conditions, climate and levee designs that may not warrant such a rigid policy. In addition, levee
vegetation is not always undesirable; some types of vegetation stabilize levee slopes and are
beneficial.
Complying with the policy would be challenging due to the regulatory permitting and compensatory
mitigation costs. The benefits of removing vegetation from the levee area are not clear, and the
environmental and project costs do not necessarily result in a more resilient flood protection system.
In some cases, such as the Santa Ana River, the Corps’ own levee designs have incorporated
vegetation, in conflict with the Corps’ own levee vegetation management policy.
H.R. 399 directs the Secretary of the Army to conduct a review of the Corps of Engineers’ levee
vegetation policy and to consider regional factors, natural resources, and varied responsibilities in
managing flood risk. The bill also requires the Secretary of the Army to consult with state and local
governments in the review, and to conduct a peer review through the National Academy of
Engineering.
Twenty-five members are currently co-sponsoring the bill. Co-sponsors include Representatives Ken
Calvert, Gary Miller, Linda Sanchez, and Loretta Sanchez.
OC Public Works and CEO/Legislative Affairs Comments
OC Public Works and CEO/Legislative Affairs recommend that your Honorable Board adopt a
Support position on H.R. 399. The policy review required by the bill will provide an opportunity to
improve existing national Corps policies that do not adequately consider Southern California regional
conditions and Corps levee designs that implement vegetation. If the Corps of Engineers national
levee vegetation management policy is not revised, the Orange County Flood Control District will
incur significant cost to secure regulatory permits and to implement compensatory mitigation to
remove vegetation from levees and areas adjacent to levees.
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The review required by H.R. 399 will likely improve the Corps of Engineers’ policy and reduce the
environmental permitting and mitigation costs to comply with the national policy.
A copy of the 2013 County of Orange Legislative Platform is now available at:
http://ocgov.com/residents/gov/legislative
If you or your staff have any questions or require additional information on any of the items in this
bulletin, please contact Donna Grubaugh at 714.834.7218.
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