BOARD AGENDA MEMORANDUM
Government Code § 84308 Applies: Yes ☐ No ☒
(If “YES” Complete Attachment A - Gov. Code § 84308)
SUBJECT:
Title
Consider the August 29, 2024, Environmental Creek Cleanup Committee Recommendation to Adopt the Proposed Water Resources Protection Zones Ordinance.
End
RECOMMENDATION:
Recommendation
A. Consider the recommendation resulting from the August 29, 2024, Environmental Creek Cleanup Committee meeting to:
i. Adopt the proposed Water Resources Protection Zones Ordinance; and
ii. Provide feedback and direction as necessary.
B. Consider the Chair’s recommendation to refer to the Environmental Creek Cleanup Committee a review of current Unhoused Related Agreements with the County of Santa Clara and City of San José.
Body
SUMMARY:
At the July 9, 2024, meeting, the Santa Clara Valley Water District (Valley Water) Board of Directors considered the Environmental Creek Cleanup Committee’s (ECCC) recommendation to adopt the proposed Water Resources Protection Zones Ordinance (Ordinance). The Ordinance is intended to protect water resources, endangered species, and other ecological resources, as well as to support and improve safety for Valley Water’s field operations staff. The Board received significant public testimony and recommended that the proposed Ordinance be referred back to the ECCC for further review and that Board consideration for its adoption be postponed until after the Unhoused People and Environment Summit (Summit) on October 11, 2024. At the August 29, 2024, ECCC meeting, the Committee reviewed a revised Ordinance as well as a draft Ordinance Implementation Plan and recommended that the Board consider adoption of the Ordinance after the Summit.
Water Resources Protection Zones Ordinance
The purpose of the Ordinance is to establish water resources protection zones (WRPZ) along creeks, waterways, water supply facilities, and other lands where Valley Water holds land rights. The Ordinance is intended to improve water quality, to protect water supply facilities and riparian habitats, and to support staff safety by prohibiting camping and encampment-related activities, reducing encampments, and preventing re-encampments within the WRPZ.
Valley Water’s mission is to provide Silicon Valley safe, clean water for a healthy life, environment, and economy. As part of this mission, Valley Water has an obligation to protect against activities that negatively impact water quality and ecological resources. Valley Water also has an obligation to protect its field staff whose work is critical to meeting regulatory requirements and maintaining flood protection and water supply infrastructure. The continued presence of encampments of unsheltered people on lands where Valley Water holds property rights threatens Valley Water’s ability to carry out its mission and ensure the safety of its staff. Additionally, unsheltered individuals utilizing riparian corridors for shelter face health and safety risks due to their vulnerability to flash floods, unhygienic and unsafe living conditions, waterborne diseases such as Shigella, frequent fire activity, as well as exposure to the elements.
Listening Session Stakeholder Input
At the July 9 Board meeting, several community members raised concerns regarding the potential for criminalization of unsheltered people and the need for safe relocation sites, housing, support services, cross-agency collaboration, and community engagement. To gather input and learn from stakeholders who voiced concerns about the Ordinance, staff hosted an in-person facilitated Listening Session on July 25, 2024, at Valley Water Headquarters. Advocates and nonprofits who support the unsheltered community were invited to share their concerns about the Ordinance as well as their ideas and solutions for addressing the needs of unsheltered people living near waterways while also ensuring Valley Water staff safety and environmental protection.
Listening Session participants shared their concerns with Valley Water’s current approach to addressing the impacts of encampments of unsheltered people near waterways, including the proposed Ordinance. Participants’ main concerns about the Ordinance were that it would displace unsheltered people from the waterways before safe relocation sites, shelter, or housing options are available and that it could potentially criminalize unsheltered people through its enforcement provisions. They also had concerns about how the Ordinance would be implemented and enforced.
Participants offered ideas and suggestions for solutions to achieve Valley Water’s goals of keeping waterways clean and safe and ensuring staff safety. The primary themes of the solutions were the need for short- and long-term shelter and housing away from waterways; support services and resources for unsheltered people; collaboration and partnerships with other agencies, advocates, and nonprofits; and funding for these solutions. Many of their recommendations align with Valley Water's current or planned efforts and actions. A number of the recommendations fall outside of Valley Water's authority and scope as a water resources management and environmental stewardship agency. Staff is further investigating several of the ideas raised to determine their feasibility.
Staff received valuable feedback and incorporated a significant amount of the stakeholder input into a revised Ordinance and draft Ordinance Implementation Plan. Attachment 1 provides a summary of the input received at the Listening Session and staff responses.
Modifications to the Ordinance
Staff revised the proposed Ordinance (Attachment 2) in response to concerns that its enforcement would displace unsheltered people without safe relocation options and that it could result in the criminalization of unsheltered people. Section 4 was modified to clarify and improve the enforcement provisions, including good faith efforts to connect unsheltered people to social services and the option to recommend community service to the court in lieu of fines. One additional revision was made after the August 29 ECCC meeting per a recommendation from the Santa Clara County District Attorney's Office. References to "prosecution" or the District Attorney were deemed unnecessary and removed. The District Attorney’s powers and obligations mandated by the California Constitution and state law are sufficient to cover any prosecution appropriate for this ordinance.
New provisions were added to Section 1 of the Ordinance to reflect Valley Water’s intent to implement the Ordinance humanely. Section 1.5 sets the priorities for enforcement, including protecting employee safety, environmental mitigation sites, and water quality, as well as resolving impediments to project construction and operations. Section 1.6 establishes the Board’s intent to safely relocate unsheltered people to interim or permanent housing, and to facilitate access to social services provided by other local government partners. Further, Section 1.7 was added to reflect Valley Water’s intent to develop a plan to guide staff in the implementation of the Ordinance.
Finally, the possession or use of firearms, ammunition, or fireworks within the Water Resources Protection Zone are prohibited in Section 3.3. Prohibiting possession will enable law enforcement to take action to remove these serious community risks without the need to witness or prove their actual or threatened use. Section 1.4 encourages property owners to institute the same prohibitions where Valley Water has easements or maintenance obligations.
Ordinance Implementation Plan
As recommended by several Listening Session participants, staff prepared a draft Ordinance Implementation Plan (Implementation Plan) (Attachment 4) that provides a framework and timeline for implementation of the Ordinance. Staff incorporated several key recommendations regarding Ordinance implementation, including adopting a pilot and/or phased approach, defining procedures for how the Ordinance would be implemented and enforced, identifying high priority enforcement areas, and creating a process for evaluating the impacts and effectiveness of the Ordinance. The Implementation Plan establishes priority levels for enforcement to support a progressive implementation approach, clearly delineated procedures for education, warning, and enforcement, and built-in timelines for review and monitoring of the Ordinance implementation, including evaluation by the ECCC by December 31, 2025. In developing the Implementation Plan, staff also researched and incorporated best practices, guidelines, and specific language from several government agencies that have implemented similar frameworks in their jurisdictions to mitigate the environmental, health, and safety impacts of encampments. Among these communities were Seattle, Tacoma, Portland, Sacramento, Berkeley, Oakland, Fremont, Santa Cruz, Santa Rosa, Escondido, and San Diego.
Stakeholders raised concerns that unsheltered people would have nowhere else to go if displaced from waterways. Valley Water recognizes that immediate implementation of the Ordinance across all Valley Water lands would displace some unsheltered people from encampments before adequate safe relocation sites, shelter, and housing options are available in Santa Clara County. Considering this reality, Encampment Condition Guidelines (Guidelines) have been incorporated into the Implementation Plan that will apply to all encampments located on Valley Water property. Adherence to the Guidelines will minimize the environmental, health, and safety impacts of encampments by promoting positive camping practices and discouraging harmful actions. As part of Valley Water’s progressive Ordinance implementation, encampments and individuals adhering to the Guidelines would be considered a low priority for enforcement. The Guidelines will further the Ordinance's overall intent to reduce the environmental impacts of encampments, ensure field staff safety, and respond to community concerns.
At the August 29, 2024, ECCC meeting, the Committee discussed the revised draft Ordinance and Implementation Plan, and advocates who support the unsheltered community provided additional feedback. ECCC members and stakeholders proposed ideas to ensure effective implementation of the Ordinance. In response to this feedback, staff incorporated minor revisions to the Guidelines as shown in Attachment 4.
In October and November 2024, staff held a series of collaborative meetings with nonprofits and advocates who support unsheltered people in Santa Clara County to gather additional feedback on the proposed Ordinance and Implementation Plan. In response to this input, staff modified the Implementation Plan to lengthen the initial education and outreach period for the Ordinance and to formalize ongoing stakeholder input by creating an Adaptive Implementation Team. These revisions are reflected in the Implementation Plan (Attachment 4).
Valley Water Contribution to Housing
Valley Water is committed to helping solve the regional shelter and housing crisis by collaborating with local agencies to provide land for temporary and permanent housing options. Assembly Bill (AB) 1469 amended the Santa Clara Valley Water District Act (District Act) to give Valley Water the authority to assist unsheltered people living along streams, in riparian corridors, or otherwise in its jurisdiction, in consultation with a city or the County of Santa Clara, to provide solutions or improve outcomes for the unsheltered individuals. Specifically, the law allows Valley Water the flexibility to use district land and a part of an existing ad valorem property tax for lasting encampment solutions.
The District Act now enables Valley Water to work with local agencies to construct low-barrier navigation centers, supportive housing, transitional housing, affordable housing, or other facilities to assist unsheltered people. These facilities would be operated by a city, the County, or a non-profit with the appropriate expertise to provide shelter and services that can improve outcomes for unsheltered people.
Under the authority granted by AB 1469, staff is discussing with nonprofit organizations and local government agencies the use of specific Valley Water-owned properties for potential temporary and permanent supportive housing. Valley Water and the City of San José recently finalized an agreement to allow the City’s use of Valley Water’s two-acre property on Cherry Avenue to develop an Emergency Interim Housing site. The City of San José is also evaluating four additional Valley Water properties for use as safe sleeping sites. Staff has met with other potential partners as well, as Valley Water continues to seek opportunities to contribute to shelter and housing options.
Interagency Collaboration
Valley Water collaborates with local agencies and other service providers to address the challenges posed by encampments and their impacts on waterways and water supply and flood protection facilities, including supporting the provision of outreach and other services by these agencies and service providers. Valley Water maintains an agreement with County of Santa Clara to provide up to $200,000 annually to support County outreach teams visiting encampments on Valley Water property for outreach and offers of shelter or housing.
Valley Water and the City of San José are finalizing a Letter of Intent to partner in holistically managing encampments on waterways throughout the City, including Valley Water priority areas and areas within the City’s stormwater Municipal Regional Permit discharge sites. Valley Water and City of San José also are working to extend their agreement to provide comprehensive services to unsheltered individuals living within the high-risk flood zones of Valley Water’s Coyote Creek Flood Protection Project footprint. Additionally, Valley Water either maintains or is pursuing Memoranda of Agreement with the County and other local municipalities to collaboratively manage the impacts of encampments on waterways. Valley Water will continue to work with local partners and assist in efforts to find solutions to address unsheltered homelessness.
On October 11, 2024, Valley Water hosted the Unhoused People and Environment Summit to bring together local leaders from Santa Clara County, South Bay cities, businesses, nonprofit groups, advocacy organizations, and law enforcement agencies, as well as leaders at the state and federal level to discuss addressing encampments of unsheltered people along waterways. The Summit explored actionable ideas for collaboration towards solutions for those experiencing homelessness while also protecting our waterways and the environment. Valley Water staff will follow up on action items and opportunities discussed at the Summit.
Recommendation
Consider the ECCC recommendation to adopt the proposed Water Resources Protection Zones Ordinance and provide feedback and direction as necessary. Additionally, consider the Chair’s recommendation to refer to the Environmental Creek Cleanup Committee a review of current Unhoused Related Agreements with the County of Santa Clara and City of San José (Attachment 6).
ENVIRONMENTAL JUSTICE AND EQUITY IMPACT:
The Water Resources Protection Zones Ordinance addresses environmental stewardship by protecting water resources, endangered species, and other ecological resources that may be located near disadvantaged communities.
FINANCIAL IMPACT:
There is no financial impact associated with this item.
CEQA:
The recommended action does not constitute a project under CEQA because it does not have a potential for resulting in direct or reasonably foreseeable indirect physical change in the environment.
ATTACHMENTS:
Attachment 1: Listening Session Input Summary
Attachment 2: Ordinance, Red-Lined
Attachment 3: Ordinance, Clean
Attachment 4: Ordinance Implementation Plan
Attachment 5: PowerPoint
Attachment 6: Memorandum
*Handout 3.5-A: S. Luna
UNCLASSIFIED MANAGER:
Manager
Jennifer Codianne, 408-630-3876