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 OPPOSE – Environmental Protection Agency and Corps of Engineers Headquarters Waters of the United States Draft Guidance Document 8.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 DG022613-AC1 February 26, 2013 Vol. IX, No. 4 Page 2 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 DG022613-AC1 February 26, 2013 Vol. IX, No. 4 Page 3 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. DG022613-AC1 February 26, 2013 Vol. IX, No. 4 Page 4 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. DG022613-AC1 February 26, 2013 Vol. IX, No. 4 Page 5 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. DG022613-AC1 February 26, 2013 Vol. IX, No. 4 Page 6 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. DG022613-AC1 February 26, 2013 Vol. IX, No. 4 Page 7 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. DG022613-AC1 February 26, 2013 Vol. IX, No. 4 Page 8 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, DG022613-AC1 February 26, 2013 Vol. IX, No. 4 Page 9 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. DG022613-AC1 February 26, 2013 Vol. IX, No. 4 Page 10 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. DG022613-AC1