FROM DROUGHT TO FLOODING – PRACTICES FOR LOCAL FLOOD AGENCIES DURING EMERGENCIES

In the first half of January 2023, California experienced an unprecedented series of atmospheric river storms that put the northern California area nearly 140% of average precipitation for the end of January, on the heels of a significant multi-year drought. While large reservoirs filled relatively quickly and pleased water supply agencies, the storms and related downpours presented significant challenges for local levee systems, whose maintaining agencies had to react quickly to fast-changing conditions that threatened public health and safety. This article addresses the challenges small local maintaining agencies face during flood-related incidents, and summarizes legal requirements and best practices for recouping money spent to respond to emergencies.

Throughout northern California levees are maintained by hundreds of public agencies of all shapes and sizes, from the well-funded State of California to small landowner-run reclamation districts with minimal staff and resources. As was widely reported in early January, a levee maintained by Reclamation District 800 in Sacramento County breached in multiple places during the storms. Reclamation District 800 has an annual budget of about $500,000; the costs of addressing damages as they were occurring, and to permanently fix the breached levee system there, dwarf that amount. Not only did the district have to respond to damages to the levee during the storm events, but it now must navigate the maze of local, state and Federal agencies involved in disaster reimbursement for the efforts it expended to protect the public. Maintaining agencies can and should take this opportunity to learn best practices for emergency repairs and reimbursements, to best position themselves for future events.

Reimbursement for emergency repairs, and to some extent for permanent fixes, can be sought from state and Federal agencies, including the Federal Emergency Management Agency, the U.S. Army Corps of Engineers (for federal project levees), the Natural Resources Conservation Service, the CA Department of Water Resources, and others. The availability and extent of such funding depends on the agency, and on the specific circumstances (for example, if a state or countywide emergency was declared).

Here are some points and best practices for local districts to consider when it comes to emergency contracting and seeking reimbursements for costs to address emergency circumstances. Local counsel should be consulted with respect to details on emergency declarations.

Local districts (including reclamation districts, levee districts and others) normally must follow public bidding processes for construction or other public works-related contracting. During emergencies, these time-consuming requirements can be streamlined if the district declares an emergency and delegates authority to enter contracts without bidding.

Local district boards must still comply with the Brown Act (which allows for emergency meetings) in order to declare emergencies and delegate authority to contract for repair work.

Most if not all disaster relief funding opportunities will require careful memorialization of decisions made during an emergency (including resolutions, meeting minutes, receipts for all expenditures, and detailed descriptions of the circumstances for an emergency declaration and steps taken to prevent or repair damage to public facilities).

County emergency services departments, with support from the California Office of Emergency Services (CalOES), play a “quarterback” role when it comes to seeking reimbursements for disaster-related expenditures. Therefore, a local district is well advised to contact its county emergency services office as early as possible for assistance with repair work and to build a record for a later request for reimbursement and/or funding for repairs.