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SACRAMENTO — With state efforts to finance levee repairs stalled, lawmakers are considering a new tack in dealing with California’s flood perils: forcing cities and counties to shoulder some of the risk. A bill before the Assembly Judiciary Committee on Tuesday would hold local planning agencies liable if floods damage subdivisions they approve on susceptible farmland or open space — even if they don’t maintain or operate the failed flood control project. Assembly Bill 3050 also says emphatically that the state expects local government to share the costs of flood liability. The provision doesn’t break new legal ground; lawsuits have targeted cities, counties and reclamation boards when levees fail. But the statement seems a clear reference to Paterno v. State of California, 113 Cal.App.4th 998, a 2003 case in which the Third District Court of Appeal held the state liable for the 1986 failure of a Yuba River levee built by local farmers decades earlier. The state must pay upward of $600 million for the flood damage suffered by 3,000 homeowners and 150 businesses. AB 3050 author Assemblyman Dave Jones, D-Sacramento, has said sharing the state’s liability is only fair. Not surprisingly, local government representatives don’t agree. Cities “simply don’t think it’s fair to be held liable over issues, like levee construction, [over which] they have no control,” said Yvonne Hunter, legislative representative for the League of California Cities. Two flood-liability lawyers say the bill probably wouldn’t have much of an immediate effect. Local slow-growth politicians likely would cite the liability threat as another reason to curb residential construction, said Scott Shapiro, a Downey Brand partner who represents several reclamation boards. Conversely, elected officials who support faster development, he said, might see the liability as a motivation to beef up local levees — a costly project likely financed only through fees on new home construction. Where the bill may have a huge impact is after a devastating flood, Shapiro said, as juries and judges scrutinize the bill’s language to decide which agency is responsible for what damage. “Post-flood, I see a very interesting public policy debate playing out in the courtroom.” Instead of trying to shift liability, the state would be better off redefining how a court assigns liability, Shapiro said. Before Paterno, courts weighed roughly 18 factors to decide whether a flood agency acted reasonably, he said. But Shapiro said Paterno created a more pro-plaintiff set of criteria, which puts the state at greater risk. “We spend a whole lot of time focused on shifting liability, which doesn’t do anything,” he said. Gary Livaich, lead trial counsel in the Paterno case, called AB 3050 “pretty much a recital of existing law … it doesn’t bother me a whole lot from a practical standpoint.” Livaich said the Paterno case proved that the state’s current flood liability system works. “There’s more attention being paid to our flood control project now than there ever was before, and that’s because of the 1986 levee break,” he said. Jones has said his bill is not intended to replace the need to fix California’s levee system, a task estimated to cost $12 billion. Gov. Arnold Schwarzenegger’s proposal to spend $6 billion on flood control projects fizzled in March when legislative leaders failed to reach a deal on a larger public works bond package.

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