Madera County Grand Jury • 2007-2008

Madera County 2007-2008 Grand Jury Final Report Book

Published: July 01, 2007 227 pages Consolidated Report
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Findings 7 findings

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A. County responsibilities were to clear sloughs in District pursuant to Madera County Contract No. 156-C-63 dated November 5, 1963 between County and District (the"1963 Contract"), whichprovides for County's cIeaning ofsloughs in the [District] for the purpose ofprotecting County roads, rights of way and easements." It also provided for District to reimburse the County for its costs offuel and equipment operator compensation, but not "any other costs or expenditures." The 1963 Contract was superseded when the Reclamation Board acquired easements for levees, the Army Corps ofEngineers constructed flood protection levees and the Agency accepted responsibility for operation and maintenance ofthe local project (flood channels) when the Agency entered into the 1970 Agreement with the Reclamation Board. B. Agency's responsibilities are: a. to maintain and operate the channel ofthe Chowchilla River to the bifurcation ofthe Ash and Berenda Sloughs in a manner that restores and preserves the channel capacity as of 1959, in accordance with the Agreement between the Agency and The Reclamation Board ofthe State of California ("Board") dated April 7, 1970 ("1970 Agreement") b. to maintain and operate the local project (Ash and Berenda Slough flood channels and levees from the Bifurcation Structure to the East Side By Pass) of2 ~;f"Apr., I'r111ntv 42 or any unit thereof upon completion of the project, substantially in accordance with the Maintenance Manual of the U. S. Army Corps ofEngineers for Chowchilla River: Ash and Berenda Sloughs Channel Improvement and Levee Construction ("Corps Manual") c. to provide local agency/interests assurances to the State of California, its Reclamation Board and the United States that will hold those government entities harmless from claims arising out ofthe project on the Chowchilla River and those sloughs, in accordance with the 1970 Agreement. d. to reimburse District for its maintenance ofthe bifurcation structure described in the Corps Manual per the Agreement between the Agency and District dated December 6, 1977 ("1977 Agreement"). C. District's responsibilities are: a. to accept title to, and operate, the bifurcation structure at the division of the Ash and Berenda Sloughs ("Sloughs") for flood control purposes in accordance with the Corps Manual, as set forth in the 1977 Agreement. b. to maintain that bifurcation structure, at the cost and expense of the Agency, in accordance with the 1977 Agreement. c. during flood periods, to patrol the banks of the levees along the Sloughs to detect breaks in those levees, and to the extent the District has personnel and equipment available, make emergency small repairs in those levees, all at the District's expense, in accordance with the 1977 Agreement. D. District's responsibilities do not include: a. long term maintenance, repair or replacement ofany portion of those levees, per the terms ofthe 1977 Agreement. b. any other obligation regarding the clearing, maintenance, repair or replacement of those levees or the slough channels. c. in spite ofDistrict's having made, on one or more occasions, a contribution of in-kind services to assist the Agency in its responsibility to maintain the sloughs, the District has no responsibility to make any similar contributions in the future.
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County, Agency and District may be willing to enter into an Agreement that clarifies these responsibilities and provides for the efficient and effective operation and maintenance of the Ash and Berenda Sloughs which results in flood protection for Madera County residents as was originally planned. of2 r,..fnnpr:l f'nllntv 43 STATE OF CALIFORNIA - THE RESOURCES AGENCY ARNOLD SCHWARZENEGGER, GOVERNOR CENTRAL VALLEY FLOOD PROTECTION BOARD 3310 EI Camino Ave., Rm. LL40 SACRAMENTO, CA 95821 (916) 574-0609 f=AX: (916) 574-0682 PERMITS: (916) 574-0653 FAX: (916) 574-0682 March 21,2008 Madera County Grand Jury P.O. Box 534 Madera, CA 93639 Re: Grand Jury Final Report, Flood Control Dear Members of the Grand Jury: The State of California, Central Valley Flood Protection Board (Board), successor to the Reclamation Board, has received the Madera County Grand Jury report entitled, "2007-2008 MADERA COUNTY GRAI\ID JURY FINAL REPORT, MAINTENANCE OF THE FLOOD CONTROL WATERWAYS AS AGREED TO IN 1977." The transmittal letter sent with the report requests a response from the Board "in accordance with California Penal Code Section 933.05(a) and (b)," and characterizes the Reclamation Board as one of the agencies from whom a response is due. The Central Valley Flood Protection Board respectfully disagrees that it is required to respond pursuant to Penal Code Section 933 or 933.05. Section 933 (a) provides that the grand jury shall submit a final report of its findings and recommendations "that pertain to county government matters." The final report may be submitted for comment to responsible officers, agencies, or departments, including the County Board of Supervisors, which in context means, the officers, agencies, or departments of the county. Section 933(c) provides that no later than 90 days after the grand jury submits a final report "on the operations of any public agency subject to its reviewing authority [emphasis added]," the governing body of the public agency shall comment on the findings and recommendations pertaining to matters under its control. The State of California, including the Central Valley Flood Protection Board, is not subject to the reviewing authority of the Madera County Grand Jury. (See 76 Ops.CaI.Atty.Gen.70 (1993) [grand jury is given oversight powers with respect to county, city, and district affairs, but State agencies are outside the scope of Penal Code sections 925, 928, and 933]). Since the Board is not subject to the reviewing authority of the Madera County Grand Jury, it is not required to respond to the findings and recommendations of the report. Nonetheless, in a spirit of cooperation, the Central Valley Flood Protection Board offers the following responses to those findings and recommendations which pertain to the Board: Findinq: On April 7,1970, an agreement was reached between the Madera County Flood Control and Water Conservation (Agency) and the Reclamation Board to clear the waterways and return the water flow capacity to the 1959 standards (the Chowchilla River Project (CRP). This project was assigned to the U. S. Army Corps of Engineers (Corps). • 44 Madera County Grand Jury March 21, 2008 Response: The Board agrees with the recommendation that the Agency review existing agreements with the Reclamation Board, now the Central Valley Flood Protection Board, and take immediate action to comply with provisions of said agreements. If you have any questions, please contact Dan Fua, Supervising Engineer, at (916) 574-0698. Sincerely, Hf- Benjamin F. Carter President 45 ., '. "'. < ! ­ '. THIS AGREEMENT, made and entered into by and bet~een THE RECLAMATION BOARD of the State of California (hereinafter referred to as the "Board") and the MADERA COUNTY FLOOD CONTROL AND WATER CON­ SERVATION AGENCY (hereinafter referred to as the "Agency"), on the ~ day of April 197__0__, in view of the following cir­ cumstances: WHEREAS, the Congress of the United States, by Public Law 87­ 874 approved October 23, 1962, authorized the Buchanan Reservoir, Chowchilla River, California, substantially in accordance with the
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Identify all of the people involved and how we may contact them.
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The Agency shall operate and maintain the channel of the Chowchilla River from Buchanan Dam to the local project in such ,~anner as to provide in said c~:...:l=--t,,-,h:..::.e::..--=-c-=-a-<;.p.:::a-=c-=i:.:t~y--..:t::..:h.=.:e::.:r=-e=-o=f~p-=r.:.e:..:v.:.a:..:i::l:.:~:.:·n:.:.g~ t' in 1959. In the event the present capacity of the ChOY7chilla River channel from Buchanan Dam downstream to the local project is less than that prevailing in 1959, the Agency shall restore the capacity to that prevailing in 1959.
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Upon completion the Agency shall hold and save the United States, the State of California, and the Reclamation Board of the State of California, their successors or assigns, free and harmless from: -3­ 49 (a) Any and all claims arising out of or in connection with the aforesaid obligations assumed and agreed upon by the Agency with regard to the local project. (b) From damage due to the construction works as on ShOvffi the plans for the local project and as actually constructed and due to the operation and maintenance of s~id works and the local project from and after the awarding ·of any contract by the Corps of Engineers for construction pursuant to the plans or any portion of said plan. (c) The Agency shall defend the State of California and the Board in all proceedings upon claims for such damage on the written request of the Board. IN WITNESS WHEREOF, the parties hereto have executed this Agree~ ment on the date first hereinabove mentioned. THE RECLAMATION BOARD OF THE STbTE OF CALIFORNIA By ALFRED A. SOUZA Vice Pres. By RONALD R. HARRINGTON Sect'y MADERA COUNTY FLOOD CONTROL AND WATER CONSERVATION AGENCY By HAROLD BAIMAT -..C.h.a"i,rm::a:n; -::~:::;:::::--~-------- Board of Directors ATTEST: EVELYN C. BRANSTETTER (SEAL) ief±A~ Clerk, Board of Dlrectors By VARnA PEZALIA Deputy Clerk -4­ 50 1 4 L .... . ~ l ~ . : . # . . . 1 . · .I1..'. "l_:'.\ ~ J. ) J 1 ,. " .. 7 ""'.'1-. ')• 7 !I.~~~"["lC~.r to CJ::,ocl.,te r.nid contract. Tl.r­ foregoing lteDohltion Has adopted this 7th day of 9 ~ril __' 1970. by the follC!:Jing vote: 10 Director Sc1unit3 voted: l.'ES 11 Director n~lF~t vot~d: 12 Director Del BinncD voted: YES 13 Director tlcui:cld voted: YES 14 nirector Corm:cll voted: YES 15 H.l\nOLD EiAu.mT 16 Cl~~iJ.,.:.J.n 17 eo~rd of Directors 18 ATTEST: 19 20 21 VArlDA PEZALL.~ 22 ueputy CierI, 23 The foregoing instrument 1a a correct copy of tho original on file in this 24 office. 25 1\ttel3t'-­ A=p:.r.:::1~1c....:::9.L. -:1970 . EVEL1!N C. BRANSTETTER 26 County Clerk.end Clerlt of tile Board of n1rectoro, Madera County Flood 27 Control nnd Water Consorvation Agency in and for the·Cou...ty· of Hadara. State 28 of Cal _ ::: 11.'\ 29 30 31 32 51 EXTRACT Fi<OH ;'lI'H.iTZS OF tt.EETING OF THE RECUJ·1ATION BOARD j.;"y 8, 1970 b. Assur~nca Agreement with Madera County Flo0d Cnntrul and Water Conservation Agency on the 13uc1.2n2ln Reservoir Project on the Chowchilla River. Upon motion by Mr. Harrington, seconded by Mr. Hamatani, and carried unanimously, the Assurance Agreement was approved and accepted, and the Vice President and Secretary were a~thorized to execute the same on behalf of the Board. STATE OF CALIFORNIA COUNTY OF SACRAPlliNTO 5S. Office of The Reclamation Board I, JOHN V. PAYNE, Assistant Secretary of The Reclamation Board, do hereby certify that the above is a true and correct extract from the Minutes of the meeting of said Board held on May 8, 1970. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of The Reclamation Board this 11th day of May , 1970. (SEAL) /JOHi:l V.PAE Asslstant Secretary The Reclamation Board SRB 016 52 HADE1~ comny CONTRACT NO. ~-.... ­ THIS AGREEMENT made by and between the }UillERA COUNTY FLOOD CONTROL AND WATER CONSERVATION AGENCY, hereinafter called "AGENCY", and the CHOWCHILLA WATER DISTRICT) hereinafter called I'DISTRICT", as follows: 4 WITNESSETH 5 ----------- W}lliREAS, prior hereto AGENCY on the-7th day of April, 6 1970, entered into an agreement with the Reclamation Board of the 7 State of California, relative to flood control on the Chowchilla 8 River and its distributaries, Ash and Berenda Sloughs, and 9 WHEREAS, at the time of execution of said agreement 10 the bifurcation structure hereinafter described was not a part 11 of the project to be constructed by the United States Corps of 12 Engineers, and 13 14 \~~REAS, the Chowchilla Water District owns a structure at the point of bifurcation of Ash Slough and Berenda Slough, 15 16 which said structure is used by District to regulate the flows, other than flood flows, passing down Ash Slough and Berenda 17 Slough, and 18 ifHEREAS, the Corps of Engineers determined that the 19 structure did not meet the flood control criteria proposed for 20 21 the Chowchilla River System, and determined to construct a new bifurcation structure to replace the one owned by the District, 22 and 23 WlffiREAS, after construction of said structure by the Corps 24 of Engineers, title thereto will be transferred to the Reclarna­ 25 tion Board of the State of California, and upon approval of 26 said structure by AGENCY pursuant to said agreement dated the 27 7th day of April, 1970, title to said structure will be transrer­ 2fl red from the Reclamation Board to AGENCY, and 29 \fHEREAS, it is the desire of the parties that title to 30 said structure shall be transferred from AGENCY to DISTRICT 31 pursuant to the terms of this agreement, and 32 -~- -------- ---_._------------­ 53 WHEREAS, it is the rout~a1 desire of the parties to 2 provide for certain services by DISTRICT to AGENCY in connection 3 with flood control on the Chowchilla River System, and to provide 4 for maintenance, repair and reconstruction of the new bifurcation 5 structure. NOW, TI~REFORE, in consideration of the terms, covenants 7 and agreements ·hereinafter set forth, IT IS AGREED by and between 8 the parties hereto as follows: 9 1) Title to Bifurcation Structure: 10 At such time as AGENCY has approved and accepted title to 11 the bifurcation structure from the Reclamation Board, AGENCY 12 agrees to immediately transfer title thereto to DISTRICT. At 13 such time as hGENCY has approved and accepted the new bifurcation 14 structure constructed by the Corps of Engineers, title thereto 15 shall i~~ediately pass from AGENCY to DISTRICT and this document 16 shall constitute a grant: of such title. 17 2) Operation of Bifurcation Structure: 18 DISTRICT hereby agrees to operate the bifurcation 19 structure for irrigation purposes in such manner as Shall be 20 determined by DISTRICT and to operate the bifurcation structure 21 for flood control purposes in accordance with the Corps of 22 Engineers' operation and maintenance manual. The cost of 23 operation for both irrigation and flood control purposes insofar 24 as the furnishing of labor is concerned shall be borne solely 25 by the District. 26 3) Maintenance, Repair and Replacement: 27 DISTRICT shall perform the necessary work for maintenance, 28 repair and replacement of such structure, but the cost thereof 29 shall be borne by AGENCY, except as to any maintenance, repair 30 or replacement caused by the misoperation, negligence or neglect 31 of DISTRICT. DISTRICT shall not perform any unreasonable 32 maintenance or repair work and before any replacement of the -2­ 54 entire structure, if such replacement is required by DISTRICT, 2 shall submit plans and specifications to AGENCY for its approval 3 thereof, which said approval shall not be unreasonably withheld. Upon performance by DISTRICT of repair or replacement 5 work, it shall bill AGENCY therefor, which said bill shall be 6 promptly paid by AGENCY, pr~vided that the work was reasonably 7 and necessarily required for the maintenance, repair or recon­ 8 struction of said structure. 9 4) Patrolling During Floods: 10 Within the boundaries of DISTRICT, DISTRICT agrees 11 that it will provide, at its cost and expense, a reasonable 12 number of persons to patrol the Chowchilla River System for 13 the purpose of ascertaining breal~s in levees or dikes, and furthe 14 agrees that to the extent it has equipment and personnel availabl 15 to make emergency small repairs to strengthen or repair flood 16 control banks or dikes. All of the foregoing to be performed at 17 DISTRICT's cost and expense. DISTRICT further agrees to notify 18 AGENCY of any breaks or ~leaknesses which the DISTRICT does not 19 have facilities to repair, and to cooperate with AGENCY on 20 emergency replacement or repair thereof. Nothing herein contained shall require DISTRICT to 22 assist AGENCY in long term maintenance, repair or replacement of 23 any portion of the Chowchilla River Flood Control System, but 24 the obligations of DISTRICT herein set forth shall app+y only 25 to emergency situations during flood periods. Except as herein 26 modified by emergency repairs, AGENCY's obligations under the 27 agreement with the Reclamation Board dated the 7th day of April, 26 1970, shall remain in full force and effect. 29 5) Hold Harmless: 30 It is agreed between the parties hereto that DISTRICT 31 shall hold AGENCY harmless from any claims, obligations, or 32 damages which are the sole, direc t and proximate result of -3­ 55 DISTRICT's failure to operate the bifurcation structure in 2 accordance with the operation manual therefor established by 3 the Corps of Engineers. DISTRICT, however, shall not hold 4 AGENCY harmleps for failure to perform any other provision of 5 this agreement expressly, but not limited to DISTRICT1s failure 6 or inability to perform emergency repairs in dikes or levees. 7 6) General Provisions: 8 This agreement shall be binding upon and inure to the 9 benefit of the successors and assigns of the parties hereto. In the event that either party to this agreement commences or maintains or defends any action for a breach of this agreement 11 or to enforce the terms hereof, the prevailing party in such 12 action shall be entitled to reasonable attorney's fees and costs 13 14 as determined by the Court therein. IN HITNESS WF£REOF the parties here to have hereunto 'I 16 set their hands this {,. d.. day of !-U" Or':;, {I1, ....[ \ , 197-=;2.. CHOWCHILLA WATER DISTRICT 17 nY_77~-r-_~ 18 --r---<-"'-9.L­ _ 19 20 "DISTRICT" i'1ADEr~ cb~l' 25 "AGENCY" ATTEST: 26 27 28 29 30 31 32 -4 ­ 56 .­ __ ,-----,~------_. :..r J.\"lt: (\l.- I ~,'\Lii':l)(n'JI!\ TH[-.: Hr.::)l::l. ir~~ l~'_; :",i .~:~: !t. "', ARNOLD SCHWAI<ZC:~lEGGEr~, (:;OIJER,'JOr:: l"H'E RE C LA~'1ATToi~n30ARD .,._ .,...,..,------;::;c ~_-., _~_•. _~.~.. ~ .:.--==-...;-..,.. _-'-.~....~- ,_';":'._-=-_. ~""'=.-~ :n'lIiEIC:~lll1il)(J,-\,-!C" nil)' LLMJ ;;i\CR,I.ivll::f·ITO. C.". ,]:;1,);' I {q·16j~,7~1··0(;(I[i ~/·X: {~')'J6) :Jf"4·0dSi F;'t:r=<i',IITS: (~) 1\:;j 5'i·~"OtlS3· i:A\. (D1<';) :;{,~"Oliti, Date: Ap ril 4. 2007 To: Federal Flood Control Project Maintaining Agencies Subject Compliance with U,S. Army Corps of Engineers Flood Control Project Maintenance Policy Guidance On September 26, 2006, the U.S. Army Corps of Engineers (Corps) released a policy guidance memorandum stating that any project component which had been fO!Jnd to have one or more maintenance deficiencies rated by the Corps as "unacceptable" would no longer be eligible for Public Law 84-99 rehabilitation assistance. The memo also indicated that such a finding may Ie ad to a determination by FEMA that the project no longer provides base (1-percent-annual­ chance) flood protection. The Corps' Sacramento District notified the Reclamation Board and DWR that it had created a list of 36 State of California sponsored projects, each with at least one maintenance deficiency . reSUlting in an "unacceptable" rating. A public workshop was held in Sacramento on December 20. 2006 to discuss this information with all Local Maintaining Agencies (LMAs) and other ',terested parties. Since then, the Corps and DWR have performed verification inspections for --"'0 ofthe LMAs with the least serious deficiencies and determined that 8 districts should be rf moved from the list. Please refer to the attached letter from the Corps to determine your district is on the list. More reGent Corps policy gUidance (attached) states that each LMA rated as "unacceptable" du e to poor maintenance, will remain active and retain rehabilitation assistance for one year a from the date ofthe Corps' notification letter if correction plan is s\..lbmitted within three months. If your district has been rated "unacceptable'l due to PQor maintenance, then your district is identified on the attached Corps list, and you must submit a com:ctio.n plan to the Reclamation Board by May 15, 2007 in accordance with the guideUriesbel6w:
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Specifically describe in reporting the reasons for your claim.
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Specifically describe the action you would like the Grand Jury to take. xiii Citizen Complaint Form Madera County Grand Jury PO Box 534 Madera Ca 93639 (559) 662-0946 Person or agency about which this complaint is made: Name: _________________________________________________________________________ Address: _______________________________________________________________________ Telephone: _____________________________________________________________________ Nature of Complaint: Describe the events in the order they occurred as concisely as possible; attach any correspondence or documents in your possession. Attach extra pages if necessary. ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ Complaint Contacts: What other persons or agencies have you contacted about this problem? Name of Agency Address Date of Contact ________________________ ________________________ ________________________ ________________________ ________________________ ________________________ ________________________ ________________________ ________________________ Grand Jury Contacts: Who do you believe the Grand Jury should contact about this matter? Name of Agency Address Phone Number ________________________ ________________________ ________________________ ________________________ ________________________ ________________________ ________________________ ________________________ ________________________ Action Required: Describe the action you wish the Grand Jury to take. ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ ______________________________________________________________________________________________________ Complainant: Name: _________________________________________________________________________ Address: _______________________________________________________________________ Telephone: _____________________________________________________________________ The information presented in this form is true, correct, and complete to the best of my knowledge. ___________________________________________ ____________________________ Signature of Complainant Date xiv CONTACT INFORMATION MADERA COUNTY GRAND JURY P.O. Box 534 Madera, CA 93637 559-662-0946 Internet Address: www.MaderaGrandJury.org Email: info@ maderagrandjury.org complaints@ maderagrandjury.org foreman@ maderagrandjury.org xv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 BOARD OF SUPERVISORS MEMBERS OF THE BOARD COUNTY OF MADERA FRANK BIGELOW VERN MOSS MADERA COUNTY GOVERNMENT CENTER RONN DOMINICI 200 WEST FOURTH STREET/MADERA, CALIFORNIA 93637 MAX RODRIGUEZ (559) 675-7700/ FAX (559) 673-3302 / TOO (559) 675-8970 TOM WHEELER TANNA G. BOYD, Chief Clerk of the Board FileNo: 08161 Date: January 8, 2008 In the Matter of CONSIDERATION OF APPROVAL OF RESPONSE TO THE 2007-2008 GRAI\JD JURY FINAL REPORT ON THE "MADERA COUNTY WATER ADVISORY COMMISSION", ADMINISTRATIOI\J DEPARTMENT. Upon motion of Supervisor Moss, seconded by Supervisor Rodriguez, it is ordered that the attached be and it is hereby adopted as shown. I hereby certify that the above order was adopted by the following vote, to wit: AYES: Supervisors Bigelow, Moss, Dominici and Rodriguez. I\JOES: None. ABSTAIN: None. ABSENT: Supervisor Wheeler. Distribution: ATTEST: TANNA G. BOYD, CLERK ~oA~qfF S~UPE~VI~,QRS CAO Y " )} , " f) \ \ " Grand Jury ,,- \......./LcttfLtJ..../ I Ct.Jl/~i_ Madera County Water Advisory Commission Deputy Clerk Honorable John DeGroot Committee Binder ._--...----- -"....--- "..--1 ~-"-'-"" \ I \ 23 BOARD OF SUPERVISORS COUNTY OF MADERA MADERA COUNTY GOVERNMENT CENTER 200 4TH STREET, MADERA, CALIFORNIA 93637 MEMBERS OF THE BOARD (559) 675-7700 ! FAX (559) 673-3302 ! TDD (559) 675-8970 FRANK BIGELOW VERN MOSS RONN DOMINICI MAX RODRIGUEZ TOM WHEELER Tanna Boyd, Clerk of the Board January 8, 2008 The Honorable John DeGroot Presiding Judge Madera County Superior Court 209 West Yosemite Avenue Madera, California 93637 Subject: Response to the 2007-08 Grand Jury Final Report on the "Madera County Water Advisory Commission." Dear Honorable Judge DeGroot: In accordance with Penal Code Section 933, the Madera County Board of Supervisors submits this response to the Final Report of the Grand Jury. The Grand Jury has requested a response to Recommendations in the 2007-08 Madera County Grand Jury Final Report on the ~~Madera County Water Advisory Commission." (See Attachment #1) . The Final Report of the Grand Jury includes ~~Findings,r which we believe requires a response. The Board will respond to each assertion before addressing the recommendations of the Jury (See Attachment #1, pages 1 through 5) ~'-Grant Finding approved for Integrated Regional Water Management Plan. Response: The stated finding is accurate, but the Integrated Regional Water Management Plan has little or nothing to do with the Commission. While the Commission will receive reports on the project, it does not have any input into the process which was initiated and nearing completion before the Commission was seated. Page -1­ 24 r Finding "B"-Commission Mission Statement adopted by the Board of Supervisors. Response: The finding is accurate as to the adopted resolution establishing a Mission Statement for the Commission. Finding "C"-Commission Policy Statement adopted by the Board of Supervisors. Response: The finding is accurate as to the adopted resolution establishing a Policy Statement for the Commission. Finding "D"-Commissioner Qualifications adopted by Board of Supervisors. Response: The finding is accurate to the extent quoted for adoption of qualifications by the Board of Supervisors. However, the resolution states that (appointment as a Water Commissioner may be based on one, all or a combination of the above qualifiers.) Finding "E"-Members of the former Water Advisory and Flood Control Boards were summarily dismissed. Response: This finding is without factual support. The issue of the Water Commission was discussed with the Madera County Water Advisory Committee, Eastern Madera County Water Advisory Committee and the Madera County Flood Control and Water Conservation Advisory Committee before the concept or ordinance was presented to the Board for adoption. All of the committees approved of the concept and the original Commission was to have 17 members from those committees. However, due to a conflict between East County and West County that iteration failed adoption. Staff was tasked to come back to the board with recommendations. It was these recommendations which were finally adopted. Every member of every former committee received a personal letter of appreciation signed by the Chairman of the Board of Supervisors with a personal invitation to apply for a position on the Commission. Finding "F"-Members of the former advisory Commission were not consulted. Response: This finding is without factual support. The County Counsel and Chairman of the Board of Supervisors consulted with all three former committees at their regularly scheduled meetings. The response was positive and suggested changes to the proposed Page -2­ 25 ordinance were made. Individuals from the committees also spoke during the numerous hearings before the Board of Supervisors. Finding "G"- Appointed members of the Commission are not qualified. Response: This finding is without factual support. While the report indicates that only one of the appointed members has political experience in water issues (enough to qualify under the resolution), none are identified with any employment or lay experience. In truth all of the commissioners have years of experience through work on extensive water infrastructure projects and farming endeavors to more than qualify under the resolution. It must be pointed out that the qualifications for water commissioner are disjunctive. In other words, no commissioner need meet all three of the criteria, as one category is sufficient. This section of the qualification resolution was omitted from the Grand Jury Report (see Response to Finding "D"). Miscellaneous Finding - Commission vs. Advisory Board-Grand Jury questions use of the title "Commission. II Response: The Board of Supervisors has many committees and boards which on some level report to the board on specific issues. But as the Jury recognizes, the issue of water is extremely important to the citizens of Madera County. It was for that reason that the board elected to entitle the new advisory panel on water as a "commission." The word commission does not, as the Jury states, mean the body is policy making. Indeed all commission means is that it is a body charged with a mission. (See, Merriam-Webster's Collegiate Dictionary, 10th edition, p231 [an authorization or command to act in a prescribed manner or to perform prescribed acts.].) In this case the Commission is to act in a prescribed manner as advisors only. The commission has no policy making authority. The following are the Grand Jury's recommendations within their Final Report, and the Board's response to each recommendation: Grand Jury Recommendation #1 "Since the County has spent $770,000 to obtain the Integrated Regional Water Management Plan, the Grand Jury recommends the Board of Supervisors move forward with the presentation of the IRWMP fact-based Page -3­ ~----~---~~.._--------------------~.__._------------­ 26 information to the citizens of Madera County according to the original plan: Circulate the draft report in November 2007, the final report in December 2007, and adopt the IRWMP plan in January 2008." Board of Supervisors' Response to Grand Jury Recommendation #1 This recommendation will not be implemented as there is no current connection between the Commission and the Plan which would change the board's intentions regarding this issue. Grand Jury Recommendation #2 ~~The Grand Jury recommends the appropriate district supervisor immediately remove each unqualified appointee (see Exhibit1, , 13.06.100 vacancies; removal from office) . Board of Supervisors' Response to Grand Jury Recommendation #2 This recommendation will not be implemented. Since each of the current commissioners is qualified for the position, they will remain as seated member of the Commissioners. Grand Jury Recommendation #3 ~~ The Grand Jury recommends the Board of supervisors create a search committee to recruit qualified candidates in compliance with Resolution No. 2007-193 section entitled Qualifications for Appointment of Water Commissioner, (see Exhibit 2 ) . Board of Supervisors' Response to Grand Jury Recommendation #3 This recommendation will not be implemented as there are qualified members sitting on the Commission. Grand Jury Recommendation #4 The Grand Jury recommends the Board of Supervisors welcome the participation of citizen action groups ­ stakeholders - discussion of vital water management issues. Page -4­ -~-----~~._~------_.~--~-----~~~-~--~~ --------­ 27 Board of Supervisors' Response to Grand Jury Recommendation #4 This recommendation will not be implemented as the Board has always solicited and taken input on all issues related to water. Moreover, the Commission policy statement clearly states that the Commission is to listen to all interested parties. Grand Jury Recommendation #5 "Finally, the Grand Jury recommends the Board of Supervisors acknowledge the many years of service of the volunteer members of the previous advisory committees, waters boards, and councils that have been abruptly dismissed. " Board of Supervisors' Response to Grand Jury Recommendation #5 This recommendation will not be implemented as this has already been completed. Sincerely, /~ ,;1~l/,i,_'1 _,_~,_ " _ 2,1/1',/,'1 /'o/"[;;,/L ;,.~--~ 1~- f/ .Y Ronn 'Dominici Chairman Madera County Board of Supervisors Attachments Page -5­ .---------------­ 28 ATTACHMENT #1 P. O. Box 534, Madera, CA 93639 Tel. 559-662-0946 November 14, 2007 MaderaCountyChiefAdministrative Officer 200 West Fourth Street Madera, CA 93637 Gentlemen: Enclosed is a copy ofthe 2007-2008 Madera County Grand Jury report entitled "MADERA COUNTY WATER ADVISORY COMMISSION". Pursuant to California Penal Code Section 933.05(f), a copy ofthe report is being provided to you two working days prior to the report's public release. The public release of this report is scheduled for November 16,2007. Please note that under Penal Code section 933.05 (f):'[no] officer, agency, department, or governing body of a public agency shall disclose any contents of the report prior to the public release of the final report". In accordance with California Penal Code Section 933.05(a) and (b), please respond to the findings and recommendations in this report that address subjects under your control. ./ According to Penal Code Section 933(c), you have 90 days to submit your responses to the recommendations contained in this report. Accordingly, the date on which the responses must be submitted is February 16, 2008. Please send your responses to: Madera County Grand Jury P.O. Box 534 Madera, CA 93639 ThankYO~~ 'V\ / ~DOminguez RECEIVED Cl V NOV 142007 Foreperson, 2007-2008 Madera County Grand Jury ADMINISTRATIVE: OFFICE 29 30 31 32 BOARD OF SUPERVISORS MEMBERS OF THE BOARD COUNTY OF MADERA FRANK BIGELOW VERN MOSS MADERA COUNTY GOVERNMENT CENTER RONN DOMINICI 200 WEST FOURTH STREET/MADERA, CALIFORNIA 93637 MAX RODRIGUEZ (559) 675-7700 I FAX (559) 673-3302/ TDD (559) 675-8970 TOM WHEELER TANNA G. BOYD, Chief Clerk of the Board File No: 08161 Date: April 15, 2008 . In the Matter of CONSIDERATION OF APPROVAL OF RESPONSE TO THE 2007-2008 GRAND JURY REPORT ON THE "MAINTENANCE OF THE FLOOD CONTROL WATERWAYS AS AGREED TO IN 1977", ADMINISTRATION DEPARTMENT. Upon motion of Supervisor Wheeler, seconded by Supervisor Rodriguez, it is ordered that the attached be and it is hereby adopted as shown. I hereby certify that the above order was adopted by the following vote, to wit: AYES: Supervisors Bigelow, Moss, Dominici, Rodriguez and Wheeler. NOES: None. ABSTAIN: None. ABSENT: None. Distribution: ATTEST: TANNA G. BOYD, CLERK BOARD OF S~PE./'VISORS ~ ~yf":L~ CAO Engineering vGrand Jury Deputy Clerk Madera County Water Advisory Commission Resource Management Agency CA Reclamation Board Chowchilla Water District US Army Corps of Engineers 33 BOARD OF SUPERVISORS COUNTY OF MADERA MADERA COUNTY GOVERNMENT CENTER 200 4TH STREET, MADERA, CALIFORNIA 93637 MEMBERS OF THE BOARD (559) 675-7700 I FAX (559) 673-3302 I TDD (559) 675-8970 FRANK BIGELOW VERN MOSS RONN DOMINICI MAX RODRIGUEZ TOM WHEELER Tanna Boyd, Clerk of the Board April 15, 2008 The Honorable John DeGroot Presiding Judge Madera County Superior Court 209 West Yosemite Avenue Madera, California 93637 Subject: Response to the 2007-08 Grand Jury Final Report on the UMaintenance of the Flood Control Waterways as Agreed to in 1977." Dear Honorable Judge DeGroot: In accordance with Penal Code Section 933, the Madera County Board of Supervisors submits this response to the Final Report of the Grand Jury. The Grand Jury has requested a response to Recommendations in the 2007-08 Madera County Grand Jury Final Report on the ~Maintenance of the Flood Control Waterways as Agreed to in 19977." See Attachment #1. The following are the Grand Jury's recommendations within their Final Report, and the Board's response to each recommendation: Grand Jury Recommendations ~The Grand Jury recommends that the Agency follow the correction plan submitted to the Reclamation Board~" ~The Grand Jury recommends that the Agency be directed to review existing agreements with the Reclamation Board, the Chowchilla Water District, and the Army Corps of Engineers and take immediate action to comply with the provisions of said agreements." Page -1­ ----------- ------------- 34 Board of Supervisors' Response to Grand Jury Recommendation The response of County Counsel is considered appropriate and is submitted as the Board of t Supervisors response to this Recommendation. (See Attachment #2) SincerelYt ~ . Chairman Madera County Board of Supervisors Attachments --------------- ---- 35 ATTACHMENT #1 FILED JAN 24 2008 p.nBox534.~m.~ MADE:HA COUNTY BOARD Tel 559-662-0946 OF SUPERVISORS Madera County Board ofSupemsors 200 West 4th Street Madera, CA 93637 RE: Grand Jury Final Report" Flood Control Gentlemen: Enclosedis acopy oftheMaderaCountyGrand JUlY report entitled. "'2007/2008 MADERA COUNTY GRAND JURY FINAL REPORT. MAINTENANCE OFTIIE FLOOD CONTROL WATERWAYS AS AGREED TO IN 1977-• Pursuant to CaliforniaPenalCodeSection933.05(f),a copy ofthereportisbeingprovided to you two working days priorto the report's public release. The public release ofthis report is scheduled for January 23, 2008. Please note that under Penal Code section 933.05 (f),"[no] officer,agency,department, orgoverningbodyofapublicagencyshalldiscloseany contentsofthereportpriortothepublicrelease ofthefinal report". In accordance with California Penal Code Section 933.05(a) and (b), please respond to the findings andrecommendationsinthisreportthataddresssubjectsunderyourcontrol. Accordingto Penal Code Section 933(c), you have 90 days to submityour responses to the recommendations contained in this report Accordingly, the date on which the responses must be submitted is April 21, 2008. Please send your responsesto: Madera County Grand Jury P.O. Box 534 Madera.. CA 93639 Q~ Regaros: IJ~Do~ez ~ C Foreperson, 2007-2008 Madera County Grand Jury • ._ .._~--------~~---._~._----------- 36 ATTACHMENT #2 County ofMadera Office ofthe County Counsel INTER-DEPARTMENT MEMORANDUM CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION DATE: March 27, 2008 TO: Stanley Koehler, Chief A sistant Administrative Officer D . FROM: RE: Response to 2007/2008 Madera County Grand Jury Final Report Maintenance of Water Ways as Agreed To In 1977 This memorandum, as noted, is responsive to the recent Grand Jury Final Report regarding flood control. As you are aware, this office has been working on a legal opinion regarding the complicated issues surrounding the flood control obligations ..-of .the County vs. Madera County Flood Control and Water Conservation Agency and other public agencies within the County of Madera. • These issues are complicated and require a difficult legal analysis and the review of a multitude of documents far beyond that reviewed by the Grand Jury. With that in mind, I must respond that any information that I have regarding the flood control obligations of the County or any other entity within the County of Madera is within the attorney-client privilege and I am thus unable to respond to the Grand Jury Report. DAP:ich S:\Admin\CountyCounsel\CC\Memos\memo to stan koehler re resp to grandy jury report 2007 2008.doc 37 At:t:achrTlsnt: #3 o. P. Box 534, Madera, CA 93639 Tel. 559-662-0946 June 12, 2008 Ronn Dominici Chair, County of Madera Board of Supervisors 200 West 4th Street Madera, California 93637 Dear Supervisor Dominici: After extensive review, the Madera County Grand Jury has found the Board of Supervisors response to the Grand Jury final report entitled, "2007/2008 MADERA COUNTY GRAND JURY FINAL REPORT, MAINTENANCE OF lHE FLOOD CONTROL WATERWAYS AS AGREED TO IN 1977" to be unsatisfactory. The Grand Jury is unclear whether County Counsel is concerned with privilege or conflict As to Privilege: Communications, not issues, are privileged. Privilege would only be involved ifthe grand jury were asking for disclosure of the content of a communication between the client and the attorney. Ifthis is the case, please explain why privilege exists, and respond directly to the Grand Jury, perhaps with the assistance of another lawyer not so encumbered. InCalifornia the attorney-client privilege is a creature of statute (the Evidence Code), and is expressly not assertable against a grand jury (Evid.Code 300.) As to Conflict: Ifthe problem is conflict, (based on County Counsel representing competing agencies, including the Grand Jury), we recommend each respondent agency respond by itself or with the assistance of a different attorney. The Grand Jury report was published on Jan. 21, 2008; even though the issue is complicated, the responsibility of each respondent under Penal Code 933.05(b)(3) provides that each may have up to six months from the date of publication to appropriately respond. Page two June 12, 2008 California Penal Code 933.05(b)(3): The recommendation requires further analysis, with an explanation and the scope and parameters of an analysis or study, and a timeframe for the matter to be prepared for discussion by the officer or head of the agency or department being investigated or reviewed, including the governing body of the public agency when applicable. 1bis timeframe shall not exceed six months from the date of publication of the grand jury report. In summary, the Grand Jury at this time finds no grounds for privilege; however we do appreciate the potential conflict of interest issue this report may represent for the Board of Supervisors and other agencies within the County. 1bis potential conflict does not eliminate the obligation to respond to the Grand Jury report as described above. We await your response to the above mentioned report by July 21, 2008. Regards, Linda R. Dominguez Foreperson, 2007/2008 Chowchilla Water District * * Post Ojfice Box 905 327 S. ChawchiTla B7vd. Chowchilla, CA 93610 * * Phone (559) 665-3747 Fax (559) 665-3740 Email [email protected] Board of Directors Dan Maddalena ~ Michael Mandala ~ Vince Taylor ~ Kole M Upton ~ Mark Wolfshorndl March 26, 2008 Madera County Grand Jury P.O. Box 534 Madera, CA 93639 Subject: Response to the 2007-2008 Grand Jury report entitled "2007/2008 MA.D£RA COUNTY GRAND JURY FINAL REPORT, MAINTENANCE OF THE FLOOD CONTROL WATERWAYS AS AGREE TO IN 1977" Dear Members ofthe Grand Jury: The Chowchilla Water District agrees with thefmdings,conclusions and recommendations of the subject Grand Jury report. It is imperative that the Madera County Flood Control and Water Conservation Agency (Agency) take the necessary steps to fulfill its responsibility to operate and maintain the flood control facilities of the Chowchilla River System. The Chowchilla Water District is prepared to cooperate with the Agency to fulfill its responsibilities. Sincerely, General Manager 40 Chowchilla Water District POST OFFICE BOX 905 - 327 S. CHOWCHILLA BLVD. CHOWCHILLA, CALIFORNIA 93610 TELEPHONE (559) 665-3747 FACSIMILE (559) 665-3740 E-MAIL [email protected] July 26, 2006 Stell Manfredi County Administrative Officer 333 W. Olive Avenue. Madera, CA 93637 Dear Mr. Manfredi: Enclosed is the "white paper" prepared by Chowchilla Water District that is our attempt to clarify the District's position as to the responsibilities of Chowchilla Water District, Madera 'County and the Madera County Flood Control & Water Conservation Agency in regards to operation and maintenance of the various flood control facilities associated with the Chowchilla River System. If you have any questions regarding the District's position, please call me. We look forward to hearing back from you and hopefully reaching a satisfactory conclusion to this matter. Sincerely, lJ "-----­ ~u asWelch CTeneralManager cc: CWD Directors Douglas Jensen Encis. FLOOD CONTROL RESPONSIBILITIES ASH SLOUGH AND BERBNDA SLOUGH MADERA COUNTY FLOOD CONTROL AND WATER CONSERVATION AGENCY COUNTY OF MADERA AND CHOWCIDLLA WATER DISTRlCT JULY 26, 2006 ISSUES: 1. WHAT ARE THE RESPONSlBILITIES OF MADERA COUNTY FLOOD CONTROL AND WATER CONSERVATION AGENCY ("Agency"), COUNTY OF MADERA ("County") OR CHOWCIDLLA WATER DISTRlCT ("District"), RESPECTIVELY, REGARDING ASH SLOUGH AND BERENDA SLOUGH PURSUANT TO AGREEMENTS TO WHICH AGENCY, COUNTY OR DISTRICT IS A PARTY? 2. WHAT, IF ANY, NEW ARRANGEMENTS OR AGREEMENT WOULD THE AGENCY, COUNTY AND DISTRICT BE WILLING TO UNDERTAKE? CONCLUSIONS: 1. A. County responsibilities were to clear sloughs in District pursuant to Madera County Contract No. 156-C-63 dated November 5, 1963 between County and District (the"1963 Contract"), whichprovides for County's cIeaning ofsloughs in the [District] for the purpose ofprotecting County roads, rights of way and easements." It also provided for District to reimburse the County for its costs offuel and equipment operator compensation, but not "any other costs or expenditures." The 1963 Contract was superseded when the Reclamation Board acquired easements for levees, the Army Corps ofEngineers constructed flood protection levees and the Agency accepted responsibility for operation and maintenance ofthe local project (flood channels) when the Agency entered into the 1970 Agreement with the Reclamation Board. B. Agency's responsibilities are: a. to maintain and operate the channel ofthe Chowchilla River to the bifurcation ofthe Ash and Berenda Sloughs in a manner that restores and preserves the channel capacity as of 1959, in accordance with the Agreement between the Agency and The Reclamation Board ofthe State of California ("Board") dated April 7, 1970 ("1970 Agreement") b. to maintain and operate the local project (Ash and Berenda Slough flood channels and levees from the Bifurcation Structure to the East Side By Pass) of2 ~;f"Apr., I'r111ntv 42 or any unit thereof upon completion of the project, substantially in accordance with the Maintenance Manual of the U. S. Army Corps ofEngineers for Chowchilla River: Ash and Berenda Sloughs Channel Improvement and Levee Construction ("Corps Manual") c. to provide local agency/interests assurances to the State of California, its Reclamation Board and the United States that will hold those government entities harmless from claims arising out ofthe project on the Chowchilla River and those sloughs, in accordance with the 1970 Agreement. d. to reimburse District for its maintenance ofthe bifurcation structure described in the Corps Manual per the Agreement between the Agency and District dated December 6, 1977 ("1977 Agreement"). C. District's responsibilities are: a. to accept title to, and operate, the bifurcation structure at the division of the Ash and Berenda Sloughs ("Sloughs") for flood control purposes in accordance with the Corps Manual, as set forth in the 1977 Agreement. b. to maintain that bifurcation structure, at the cost and expense of the Agency, in accordance with the 1977 Agreement. c. during flood periods, to patrol the banks of the levees along the Sloughs to detect breaks in those levees, and to the extent the District has personnel and equipment available, make emergency small repairs in those levees, all at the District's expense, in accordance with the 1977 Agreement. D. District's responsibilities do not include: a. long term maintenance, repair or replacement ofany portion of those levees, per the terms ofthe 1977 Agreement. b. any other obligation regarding the clearing, maintenance, repair or replacement of those levees or the slough channels. c. in spite ofDistrict's having made, on one or more occasions, a contribution of in-kind services to assist the Agency in its responsibility to maintain the sloughs, the District has no responsibility to make any similar contributions in the future.

Recommendations 7