BOARD AGENDA MEMORANDUM
Government Code § 84308 Applies: Yes ☐ No ☒
(If “YES” Complete Attachment A - Gov. Code § 84308)
SUBJECT:
Title
Workshop on Valley Water’s Approach to Addressing Encampments of Unhoused People along Waterways and on Valley Water Property.
End
RECOMMENDATION:
Recommendation
Receive information and provide direction on the following topics:
A. Review of the District Act as it relates to unsheltered people in riparian corridors, and prior legislative efforts, and constitutional and legal limitations;
B. Overview of funding resources and Valley Water expenditures, policies, and efforts related to mitigating the environmental impacts of encampments of unhoused people;
C. Overview of surplus lands and the utilization of Valley Water lands to benefit unsheltered people living in riparian corridors;
D. Overview of collaborative efforts with other local municipalities and agencies;
E. Any other lawful efforts to address encampments of unhoused people along creeks and on Valley Water lands; and
F. Consider staff recommendations to address encampments of unsheltered people in the riparian corridors of Santa Clara County.
Body
SUMMARY:
At the December 13, 2022, Santa Clara Valley Water District (Valley Water) Board meeting, the Board Chair requested a Special Meeting to discuss Valley Water’s approach to addressing the effects of encampments of unhoused people along waterways and on Valley Water property, including discussion of the District Act and legislative considerations, funding resources, current Valley Water encampment cleanup protocols, utilization of Valley Water lands, and collaborative efforts with other agencies. The growing number of unhoused people in Santa Clara County remains one of the region’s most intractable challenges with social, public safety, and environmental implications. In addition to being a human tragedy, creekside encampments contribute largely to local pollution and the degradation of water quality and riparian habitat in streams. Santa Clara County is not the only area grappling with growing numbers of unsheltered people. According to the U.S. Department of Housing and Urban Development’s Annual Homeless Assessment Report to Congress, in January 2020 California accounted for more than one-fifth of the nation’s unhoused population (28% or 161,548 people). California also contains more than half of the nation’s unsheltered population (51% or 113,660 people), which includes people living in vehicles, in abandoned buildings, on public lands, or on the street. That same report showed that 87% of unhoused individuals in the City of San José are unsheltered, the highest rate among California’s major cities. The federal and state governments recognize that homelessness and the numbers of unsheltered people are growing, and in recent years, have substantially increased the amount of funding available to cities and counties to address the human and logistical challenges of keeping the indigent and working poor housed amid a housing shortage and skyrocketing housing costs.
A. Review of the District Act as it Relates to Unsheltered People in Riparian Corridors, and Prior Legislative Efforts; and Constitutional and Legal Limitations
As a public agency and water resources manager, Valley Water plays an important role in reducing the number of encampments in waterways to address pollution and comply with the Municipal Regional Stormwater Permit issued by the San Francisco Bay Regional Water Quality Control Board. However, as an independent special district, Valley Water’s actions to address the challenges posed by encampments and to reduce environmental impacts are limited by the agency’s authorities granted by the Santa Clara Valley Water District Act (District Act), as well as by the California Constitution’s restrictions on the use of taxes and fees collected for water supply and flood protection for other purposes.
Statutory Limits of the District Act:
The District Act establishes the Santa Clara Valley Water District (Valley Water) as an independent special district. The District Act has been amended numerous times since it was originally enacted by the state in 1951. The law defines the authorities of the agency to include comprehensive water management and protection from flooding within Santa Clara County. It also assigns the authority to enhance, protect, and restore streams, riparian corridors, and natural resources in connection with carrying out the agency’s water supply and flood protection mission. Other provisions of the District Act regulate how Valley Water can levy taxes, set water rates, and use revenues as they relate to the agency’s mission. For example, revenue sources such as the 1% ad valorem property tax are limited to spending for the purposes of the District Act.
In 2017, Valley Water sponsored a state bill to amend the District Act, Senate Bill 519 (SB519), authored by Senator Jim Beall. The proposal introduced language amending Section 5, Paragraph 5 of the District Act to allow Valley Water broad authority to take action as appropriate and beneficial to reduce impacts on water resources from activity including, but not limited to, camping, construction, and discharge of waste or materials. The intent was for broad language to allow Valley Water to fund and invest in limited social services and outreach, such as case management and limited use of Valley Water property for housing of unsheltered families. Unfortunately, that effort to amend the District Act was unsuccessful and was halted by strong opposition from the Senate Governance and Finance Committee. The Committee deemed the language too broad, granting police powers not appropriate for an independent special district, and found that it exceeded Valley Water’s authority beyond its established purpose.
Staff is currently seeking a state legislator to author amendments to the District Act in 2023 to allow for financial reforms and the continuation of compensation for the Board of Directors at its current level. Depending on whether a state legislator agrees to author the bill and agrees to expand the effort to include amendments to enable more flexibility to address encampments, this effort could be an opportunity to try again to gain authority to assist the unsheltered people who are living in the riparian corridors of Santa Clara County.
California Constitutional Limitations:
Proposition 218, approved by the voters in November 1996, amended the California Constitution to limit the ability of local governments to impose property related fees and charges to specified processes, and most notably for this discussion, limits the purposes on which those fees can be spent. Article XIII D, Section 6 (b) applies the following limits on property related fees and charges which include water rates.
(1) Revenues derived from the fee or charge shall not exceed the funds required to provide the property related service.
(2) Revenues derived from the fee or charge shall not be used for any purpose other than that for which the fee or charge was imposed.
(3) The amount of a fee or charge imposed upon any parcel or person as an incident of property ownership shall not exceed the proportional cost of the service attributable to the parcel.
(4) No fee or charge may be imposed for a service unless that service is actually used by, or immediately available to, the owner of the property in question.
To develop a property related fee for services to address the effects of the unhoused along local waterways, Valley Water must identify a sufficient tie between its programs and services attributable to a parcel or property ownership. Even if its programs satisfy this requirement, such a fee requires two-thirds voter approval or approval by a majority of those subject to the fee, unless the fee is for water supply or sewer services, neither of which are likely applicable here.
Proposition 26
Proposition 26, approved by the voters in November 2010, amended the California Constitution to further limit state and local governments’ ability to fund public services via fees. The measure defines as a tax requiring voter approval “any levy, charge, or exaction of any kind imposed by a local government” unless at least one of the following seven stated exceptions applies:
1) A charge imposed for a specific benefit conferred or privilege granted that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of conferring the benefit or granting the privilege.
(2) A charge imposed for a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product.
(3) A charge imposed for the reasonable regulatory costs to a local government for issuing licenses and permits, performing investigations, inspections, and audits, enforcing agricultural marketing orders, and the administrative enforcement and adjudication thereof.
(4) A charge imposed for entrance to or use of local government property, or the purchase, rental, or lease of local government property.
(5) A fine, penalty, or other monetary charge imposed by the judicial branch of government or a local government, as a result of a violation of law.
(6) A charge imposed as a condition of property development.
(7) Assessments and property-related fees imposed in accordance with the provisions of Article XIII D.2
Any proposed Proposition 26 fee to fund programs to address encampments of unsheltered people along local waterways must be thoroughly evaluated for constitutional compliance. As to fees imposed for governmental services (i.e. the second section specified above), the costs for such programs can only be allocated to a payor in a manner that bears a fair or reasonable relationship to that payor’s burdens on, or benefits received from the program.
Valley Water largely relies on other sources of revenue, such as Measure S Safe, Clean Water and Natural Flood Protection Program funding enacted by the voters as a special parcel tax which addresses six community priorities through the delivery of 32 projects. One of the projects under the program is the Good Neighbor Program: Encampment Cleanup Project (Encampment Cleanup Project), which addresses encampments of unsheltered people as specifically authorized in that Measure.
Evolving Case Law on Unpermitted Camping:
In the case of Martin v. City of Boise, 920 F.3d 584, 616 (9th Cir. 2019), the U.S. Court of Appeals for the Ninth Circuit held that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.” This case was affirmed by the U.S. Supreme Court when it declined to review the Ninth Circuit’s decision. Martin v. City of Boise has been interpreted to mean a local agency cannot impose criminal penalties for unpermitted camping unless there is a real option for shelter to offer. There is similar case law that applies to civil penalties, as well.
Certainly, this complicates the removal of encampments, but it also may provide a legal rationale for why the safe operation of water supply and flood protection infrastructure in the 21st Century requires some financial expenditure to lawfully address encampments.
Topic for Board Consideration:
Add Flexibility to the District Act - As described above, an amendment to the language in the District Act could expand Valley Water’s options to address the water quality and environmental impacts of encampments. The Legislature may not favor expanding Valley Water’s mission to include human services but perhaps would favor affirming that some human services functions may be appropriate when there is a clear nexus to Valley Water’s flood protection, water supply, and environmental mission. Clearly communicating intended outcomes and being transparent as to Valley Water’s proposed efforts to achieve them, could help with gaining the necessary support in the Legislature.
Pros:
a. Statutory authorization would enable revenue from the 1% ad valorem property tax to be used for encampment resolutions.
b. More flexibility may lead to better outcomes for unsheltered people living in encampments.
c. Statutory authorization would reduce litigation risks from taxpayer advocates.
Cons:
a. Does not address constitutional limits on how property related fees and charges, such as water rates or flood control assessments, can be spent.
b. Assigning any human services responsibility to an independent special district focused on natural resources is considered by legislators to be a heavy lift because it carries some political risk.
c. May result in unintended consequences that could limit existing authority to address encampments of unsheltered people when there is a nexus to Valley Water’s natural resources mission.
B. Overview of Funding Resources and Valley Water Expenditures, Policies, and Efforts Related to Mitigating the Environmental Effects of Unhoused Encampments
Federal Funding Resources:
While there is federal funding to address homelessness and its related challenges, this funding is generally only available to states, counties, cities, and other health and social services entities. Federal resources for independent special districts with a mission related to water resources, like Valley Water, are generally limited to funding for addressing environmental and water quality impacts to waterways caused by encampments. Valley Water is pursuing a grant administered through the U.S. Environmental Protection Agency to support our creek cleanup work that improves water quality in waterways that flow into San Francisco Bay. Other available federal funding for clean water-related work is administered through State Revolving Loan Funds, which typically Valley Water does not utilize due to Valley Water’s more favorable borrowing ability. However, staff is continuously seeking federal funding opportunities to address encampments of unsheltered people and creek cleanups, working to partner with cities and the County to access funding, as well as supporting legislation that addresses homelessness and related challenges.
State Funding Resources:
In the last three fiscal years, the state has appropriated billions of dollars toward programs and services needed to support the unhoused and unsheltered population. In Fiscal Year 2021-2022, the state appropriated $12 billion to assist cities and counties to build necessary housing and fund programs to support transitioning people into housing. This fiscal year, the state is appropriating an additional $2 billion to continue state efforts to address homelessness. Most of these funds provide grants to cities and counties to develop transitional housing, as well as to redesign Medi-Cal to improve care for unhoused individuals and provide long-term health care solutions.
As is the case at the federal level, Valley Water is excluded from qualifying for these state resources as an independent special district. Opportunities for direct funding from the state are limited to encampment cleanup efforts and are a fraction of those allocated for housing and social services. Only $300 million was appropriated for encampment cleanups last fiscal year and most of these opportunities are reduced to small-value litter collection programs primarily intended to engage community groups. Valley Water’s best chances to access state funding to address the challenges of encampments of unsheltered people are through partnerships with cities, the County, social service organizations, and community groups.
For 2023, staff has proposed to the California Special Districts Association (CSDA) that the association seek to expand eligibility for encampment resolution funds to include independent special districts. The CSDA state legislation committee approved the request and staff will be working with CSDA on a state budget effort to get encampment resolution funding to independent special districts like Valley Water.
Local Funding Resources:
In 2020 Santa Clara County voters approved Measure S, the Safe Clean Water and Natural Flood Protection Program (Safe, Clean Water Program), which provides $500,000 annually in cost-share agreements with local agencies for services related to encampment clean-ups on waterways. Based on priorities established by the community, Measure S allows ongoing funds to support direct Valley Water efforts to address the impacts of encampments on our waterways.
While the Board has the ability to increase the funding allocation of the Encampment Cleanup Project, infrastructure construction projects in the Safe, Clean Water Program are experiencing significant cost increases. These increased costs are impacting the Safe, Clean Water fund’s financial health and Valley Water’s ability to deliver all the key performance indicators (KPIs) in the Safe, Clean Water Program. As a result, there are no additional reserve funds to allocate to the Encampment Cleanup Project without reducing the funding allocation of another project and impacting the delivery of another KPI.
While the Safe, Clean Water Program is designed to allow for adjustments and modifications, those changes must be implemented in accordance with the program’s change control process. The process outlines the differences between adjustments and modifications to the Safe, Clean Water Program and identifies the different implementation. In summary, “adjustments” are project changes that do not impact KPIs, such as updates to text, financial allocation or schedule, and can be approved by the Valley Water Board during a public board meeting. Any changes to KPIs are considered “modifications.” Modifications to KPIs or decisions to not implement a project require a public hearing, which must be publicly noticed.
Additionally, community partnerships and grants are available through Measure S for community groups and individuals who are interested in helping prevent pollution in our waterways, which can help reduce the environmental impacts of encampments. Previous grantees include the Downtown Streets Team which engages in cleanup projects and provides resources to unhoused people.
Valley Water Encampment Cleanup Expenditures:
Valley Water has an adopted Fiscal Year 2022-2023 encampment cleanup budget of $2.4 million, with roughly 43% of that amount expended as of mid-December 2022. The prior Fiscal Year 2021-2022 encampment cleanup budget was $1.9 million and ultimately was overspent by 15%. Expenditures for cleanups were lower in Fiscal Years 2020-2021 and 2019-2020 due to COVID-19 pandemic restrictions that reduced the number of cleanups.
Relevant Valley Water Policies, Procedures, and Protocols:
During the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) issued interim guidance to public agencies, recommending against clearing encampments of unsheltered persons unless individual housing options are available due to the risk of spreading the disease. The interim guidance encouraged that people staying in encampments set up their tents/sleeping quarters with at least 12 feet x 12 feet of space per individual. Following this guidance, law enforcement and other agencies in Santa Clara County, including Valley Water, paused encampment abatement efforts and shifted toward an encampment management strategy that involved leaving encampments in place and attempting to mitigate their negative environmental impact through other methods. While it is true that the CDC guidelines are not in and of themselves binding authority, courts have relied upon them, at least in part, in evaluating the legality of public entities’ abatement plans and efforts.
The guidance currently remains in effect, but the CDC is reviewing its recommendations and changes may be coming. Whether or not the CDC guidance is updated, uncertainty remains as to whether Valley Water and other agencies will be able to resume abatements in the manner that they occurred pre-COVID. This is because the CDC guidance and recent caselaw have significantly affected how public agencies are responding to encampments; there is some legal uncertainty regarding what kinds of abatement measures public agencies may lawfully pursue.
In the case of Martin v. Boise, as introduced above, the U.S. Court of Appeals for the Ninth Circuit held that the City of Boise violated the Eighth Amendment of the U.S. Constitution (prohibiting cruel and unusual punishment) for enforcing two city ordinances that made it a misdemeanor to camp on streets, sidewalks, parks, or public places (camping ordinance), or to sleep in a public place without the owner’s permission (part of a disorderly conduct ordinance), against unsheltered individuals sleeping overnight in public parks when there were not enough beds available in local shelters to house all of the unsheltered. These restrictions apply when there may be some criminal penalty associated with the government action. Notably, in Santa Clara County there is currently only shelter capacity for approximately one quarter of the unhoused population.
To avoid legal jeopardy, local municipalities have mostly moved away from any prior abatement strategies and toward encampment management instead. For instance, Valley Water has been advised that under current practice City of San José authorizes abatements only in situations that involve public safety issues, right-of-way obstruction, or construction needs. There is indication that the current strategies will continue post-Covid and independently of any changes to the CDC guidance. Valley Water has historically relied upon cooperation and coordination with local cities to address encampments. If cities and law enforcement do not support abatement, Valley Water will not have the necessary cooperation for abatement activities of its own.
As part of its encampment management strategy, Valley Water crews conduct cleanups of encamped areas daily, leaving encampments in place and clearing trash, debris, and hazardous pollutants around them. Crews give advance notice to encampment residents through 72-hour postings, and they attempt to implement an approximate 12-foot x 12-foot good neighbor policy to limit the footprint taken up by a single encampment. Valley Water also conducts weed abatement by mowing around encampments to reduce the risk of wildfire, with 72-hour notice given. Additionally, Valley Water provides $80,000 per year in funding for the City of San José’s Cash for Trash program through which unhoused residents are compensated to collect and dispose of trash in their areas.
Furthermore, under the Safe, Water Program’s B1: Impaired Water Bodies Improvement Project, Valley Water is collaborating with the Santa Clara County Parks and Recreation Department and the cities of Morgan Hill and
Gilroy to provide vouchers for responsible disposal of wastewater for unhoused individuals living in RVs. Vouchers can be used for free RV waste disposal at Coyote Lake and Mt. Madonna County Parks. In FY22, Morgan Hill and Gilroy homeless outreach providers distributed waste disposal vouchers to unhoused individuals.
Valley Water has recently developed a Water Resources Encampment Risk Assessment tool which seeks to provide staff with a uniform method of assessing the impact of encampments based on risk factors including: the location of an encampment and its effect on stream flow conveyance and maintenance access; safety issues such as fire risk, presence of criminal activity, and public safety; environmental issues such as the presence of hazardous waste and harm to riparian trees or critical species; and adjacency to critical infrastructure. The Water Resources Encampment Risk Assessment informs Valley Water’s decisions to perform encampment abatements based on the totality of the impact to Valley Water facilities. This tool seeks to standardize these decisions and provide an enhanced level of transparency.
Valley Water Encampment Cleanup Efforts:
Valley Water’s encampment cleanup crew operates on a daily basis countywide. The crew consists of four Valley Water permanent staff members and six to eight skilled-labor contractors. In calendar year 2022, the encampment cleanup crew removed 931.03 tons of trash and debris that had been generated by creekside encampments throughout Santa Clara County.
Topic for Board Consideration:
Enact a New Special Tax - As evident from the voter-approval of Measure S, Valley Water’s work to address encampment impacts along our waterways is a community priority. Another potential option would be to bring to the voters of Santa Clara County a special tax for Valley Water to invest in long-term solutions for unsheltered people encamped in riparian corridors. Valley Water would use the funds to help pay for costs incurred by Valley Water and municipalities in offering environmental clean-up, outreach, and connection to services and transitional housing for unsheltered people living in riparian corridors. It is important to note the intention would not be for Valley Water to initiate or lead these efforts, but rather contribute to covering the costs incurred by municipalities in exercising their authority to provide for the common welfare of the people.
Pros:
a. A special tax is approved by 2/3 of voters and may have less risk of litigation than using other revenues.
b. More funding likely would result in more engagement from cities and the County for encampment resolution in keeping with case law.
c. Primary authority of cities and the County to provide human services is maintained.
Cons:
a. A special tax must be approved by 2/3 of voters and may not reach the necessary super-majority for passage.
b. There are costs in preparing a measure for the ballot as well as for conducting the election that exceed current annual costs of encampment resolution efforts.
Contract with a Non-Profit Organization - While a contract with an outside entity to provide limited outreach and connection to city and county services would need a request for proposal process, it does allow Valley Water to focus those services on encampment locations of particular concern to water supply and flood protection operations, as well as areas of community concern. A non-profit organization receiving funding from Valley Water might be able to access federal and state grants and use the funding to assist unsheltered people in riparian corridors.
Pros:
a. More clearly directs efforts to locations of concern to Valley Water.
b. Keeps Valley Water focused on our primary mission, albeit with some human services contract management.
Cons:
a. Does not create new funding and existing funding limits (Constitutional & state law) apply.
C. Overview of Surplus Lands and the Utilization of Valley Water Lands to Benefit the Unhoused
One financial barrier for cities and the County in building shelters, transitional housing, tiny homes, and other such facilities to serve the unhoused population is the high cost of land in Santa Clara County. To help meet the need for land on which to build temporary housing, there is some potential for utilizing Valley Water’s surplus land holdings through permanent or temporary transfer to a city or the County.
Valley Water’s Board of Directors is solely authorized to designate Valley Water owned property as surplus. Such designation would typically be in response to a Valley Water staff recommendation that Valley Water owned property does not provide operational value for a current or planned project, ongoing operations and maintenance, stewardship objectives, or other agency purposes. However, as the predominance of Valley Water fee title land was acquired for planned projects or other operational needs, it is atypical that Valley Water land would be designated as surplus.
The designation and disposition of Valley Water owned property is governed by the District Act and other applicable law including the California Government Code and the Surplus Land Act. The Surplus Land Act (SLA) is a “right of first refusal” law that requires all local agencies to offer surplus land for sale or lease to affordable home developers and certain other entities before selling or leasing the land to any individual or entity. Any time Valley Water disposes of land, it must follow the SLA unless the land qualifies as exempt surplus land.
Dispositions include both sales and leases (unless the lease is less than five years or where no demolition or development will occur during the term of the lease). There are many exemptions in the SLA which can be generally summarized in the following four categories: (1) Those where the pre-AB 1486 version of the SLA applies because the local agency took action to dispose of the land prior to September 30, 2019 (“Grandfathering” exemptions); (2) Those where the disposition can be streamlined because the proposed development on the surplus land includes a certain percentage of affordable units (Affordable Housing exemptions); (3) Land that is disposed of or restricted for another public use under certain conditions (Public Use exemptions); and (4) Land that is not suitable for housing because of size or other factors (Unsuitable Parcel exemptions).
Prior to disposing of surplus land, or participating in negotiations to dispose of that property, Valley Water must send a written notice of availability (NOA) to certain parties designated in the SLA. In addition, the SLA includes notice and hearing requirements related to the disposition. All dispositions of surplus land must be approved by the California Department of Housing and Community Development before the sale or lease can be finalized. If surplus property is not conveyed in response to the public notification process, Valley Water may sell or lease at public auction and convey to the highest bidder any property belonging to Valley Water not required for public use.
Topic for Board Consideration:
Offer Additional Use of Valley Water Property - Valley Water land could be offered as the agency’s contribution toward the costs of providing human services and in exchange Valley Water would receive increased services for unsheltered people living in riparian encampments.
Pros:
a. Does not require the use of a Valley Water source of revenue that may be limited by constitutional and statutory law.
b. Could increase the number of housing opportunities that could be offered to unsheltered people living in riparian corridors.
Cons:
a. There are liability, land use, and CEQA concerns to be determined.
D. Overview of Collaborative Efforts with Other Local Municipalities and Agencies
Encampment resolution and mitigation along waterways necessarily involve multiple parties, including creekside property owners and other governmental entities. For Valley Water to be successful in addressing encampments and fulfilling its water supply and flood protection roles, there must be collaborative partnerships to address the human needs of unsheltered people, as well as coordination regarding land rights, creek maintenance, safety inspections, and the responsible implementation of groundwater management and flood protection measures. A recurring challenge for Valley Water encampment cleanup efforts is the migration of encampments to other waterways or the re-encampment of previously cleared areas. Effective abatement, mitigation, and restoration require extensive partnerships and multiple strategies to achieve long-term solutions.
Existing Partnerships:
Valley Water has an existing Memorandum of Agreement (MOA) with the City of San José for a collaborative partnership to address encampments of unhoused people. Under this agreement, Valley Water provides the cleanup staffing and light equipment for encampment abatement, as well as necessary permits, transportation of trash, and additional required heavy equipment. The City is responsible for providing a minimum of a 72-hour notice to unsheltered people in encampments, security during cleanup, sorting and storage of personal items (as required by statute and case law following cleanup), landfill disposal costs, and disposal of hazardous wastes. The City’s Department of Housing arranges for social service providers to offer available shelter and social services to unsheltered individuals occupying the encampments. Draft agreements modeled after this existing MOA have been shared with the County of Santa Clara and the cities of Gilroy, Milpitas, Morgan Hill, and Sunnyvale. However, city officials have not pursued finalizing collaborative agreements. Despite the lack of formal agreements, Valley Water follows a similar model of role-sharing with other partner cities when performing encampment cleanups.
Even with a formal agreement in place (such as with the City of San José), there remains a gray area in the roles and responsibilities of the agencies involved in addressing encampment challenges. For example, there is currently a lack of protocol for who pays for fire response and remediation for damage due to fires originating in encampments along waterways. Additionally, in the case of completed flood protection projects, agreements are needed on creek maintenance and restoration responsibility related to land rights, an active effort to prevent re-encampments, and agency resources and direct contacts for neighbors with creek concerns. To best serve the unsheltered people and neighbors impacted by encampments, agencies must be willing to work together collaboratively to lawfully pool resources and funding.
Expanding Partnerships:
Board members have broached the concept of establishing a Joint Powers Authority (JPA) that would seek to address the regional challenge of the growing number of encampments of unsheltered people. A JPA is a governing body where two or more public agencies may jointly exercise power and would require the establishment of a separate board of directors and a long-term efficient funding structure. A JPA can only exercise the authorities of its constituent agencies and has at its disposal only the financial resources provided by those agencies. Without voter-approved new taxes, a JPA does not increase the available resources and may create extra costs for the administration of the JPA. The value of a JPA would be to get cities, the County, and special districts to have a standing mechanism for coordinated actions to better serve unsheltered people and to better protect the environment.
A similar agency was formed in Los Angeles after the Los Angeles County Board of Supervisors and the City of Los Angeles created the Los Angeles Homeless Services Authority (LAHSA). This independent authority coordinates and manages over $800 million annually in federal, state, county, and city funds for programs that provide shelter, housing, and services for unhoused people. LAHSA is the lead agency in a regional effort to help unhoused people, working with more than 100 nonprofit partners. Together these form the Los Angeles Continuum of Care which provides ongoing programs ranging from outreach, emergency shelters, transitional and permanent housing, social services, and supportive work programs designed to empower individuals with tools and skills to attain a stable housing environment. LAHSA continues working with the city and county agencies to integrate services and housing opportunities.
However, since the LAHSA’s inception, there has been criticism of the effectiveness of its ability to address homelessness. Challenges include a lack of clear responsibilities established to ensure a specific person, or specific people, are accountable for addressing these broad-reaching issues, as well as conflicting prioritization of efforts because the LAHSA is beholden to requests from both the City and the County, in addition to its own advisory boards. Ultimately, a JPA is merely a voluntary relationship among the member agencies. Homelessness is a complex issue that crosses special district, city, county, and state jurisdictions, and impacts private property owners, all of which have different and competing missions, priorities, and policies on how to address the human and environmental crisis of encampments of unsheltered people.
Instead of a JPA, a global agreement among the various local jurisdictions would be challenging to create and approve, but it likely isn’t harder than forming a new JPA and would keep accountability with the elected city, county, and independent special district officials based on their authorities under the law. Forming a global agreement has no established process, however; and forming a JPA does. A formal JPA made up of various municipal representatives could be structured with clear roles and responsibilities around land rights, the necessary work to prevent re-encampments. and the social, outreach, and health services necessary to help unsheltered individuals find long-term housing.
Topic for Board Consideration:
Form a Joint Powers Authority - A regional JPA would create a mechanism through which cities, the County, and special districts could cooperate and coordinate their efforts to address encampments of unsheltered people. There is an established process for the establishment of a JPA, including defining its powers and functions in charter documents, establishing a governing board, and appointing a treasurer and auditor. However, the estimated time it would take for all member agencies to develop and execute a joint powers agreement is unknown.
Pros:
a. A JPA may increase coordination of programs to reduce homelessness and address environmental impacts of encampments.
b. May lead to better outcomes for unsheltered people living in encampments.
c. May result in redoubled efforts to access federal and state funding.
d. There is an established process for the formation of a JPA providing a “road map” for proceeding.
Cons:
a. A JPA is only possible if cities and the County agree, and the time required to reach an agreement is unknown.
b. No new financial resources are created. The JPA is dependent on the funds voluntarily contributed by the constituent agencies.
c. Whether encampments on riparian watershed lands are prioritized and whether there are better outcomes for unsheltered people will depend on the governance of the JPA and not Valley Water.
Create a Global Agreement - Similar to a JPA, extensive negotiations would be necessary to create and approve a global agreement with cities and the County as to how programs for reducing the number of unsheltered people and the environmental impacts of encampments in Santa Clara County.
Pros:
a. Does not create a new governmental entity so agreement may be reached more quickly.
b. Keeps city, county, and special district officials accountable for their existing authorities under the law.
Cons:
a. Cannot assure continuous stream of funding.
b. May not increase engagement of cities and the County in efforts to reduce the number of unsheltered people living in riparian areas.
c. Difficult to negotiate and implement without clear leadership structure.
E. Any Other Lawful Efforts to Address Encampments of Unhoused People on Creeks and Valley Water Lands
The preceding information presents topics for the Board’s consideration in determining the direction of Valley Water’s continued work to address and mitigate the negative impacts of unhoused encampments near our waterways. Staff would like to allow the opportunity for the board to make any additional recommendations based on experience and knowledge or resulting from the workshop discussion.
F. Consider Staff Recommendations to Address Encampments of Unsheltered People in Riparian Corridors of Santa Clara County
Based on the above discussion staff makes the following recommendations for addressing the human, environmental, and operational crisis of encampments of unsheltered people in the riparian corridors of Santa Clara County.
a. Do not seek District Act amendments at this time - To the extent that the Board can find a nexus to our natural resources mission, and given the evolving case law regarding encampments on public lands and our Municipal Regional Stormwater Permit from the San Francisco Bay Regional Water Quality Control Board, there is sufficient authority within the Act to proceed with the staff recommended actions below, and potentially other actions.
b. Use Board authority under Measure S Safe, Clean Water and Natural Flood Protection Program - This special tax passed by the voters in 2020 gives the Board authority to reapportion funding among the various programs enacted. Consider whether to re-direct funding from other Safe, Clean Water Projects to humanely address encampments of unsheltered people in riparian corridors.
c. Offer additional use of Valley Water property - To the extent that the Board finds a nexus to our natural resources mission as stated in a. above, lands owned by Valley Water could be used to negotiate and secure dedicated slots in transitional housing to be used to comply with evolving case law and the Municipal Regional Stormwater Permit.
d. Work to establish a global partnership with municipalities - A longer term solution may be a global partnership with cities, the County, and other special districts to help ensure better outcomes for unsheltered people. This may take the form of a global agreement, a JPA, or the creation of a continuum of care in Santa Clara County.
Proceeding strategically, using the authorities Valley Water already has and leveraging case law and environmental permits, there is sufficient authority to use existing resources to proceed with the recommendations above.
ENVIRONMENTAL JUSTICE IMPACT:
Further analysis is necessary to determine the Environmental Justice impacts associated with this/these items(s) and will be included in a future update to the Board.
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 the potential for resulting in direct or reasonably foreseeable indirect physical change in the environment.
ATTACHMENTS:
Attachment 1: PowerPoint
Attachment 2: Online Article, New York Times, “How Houston Moved 25,000 People
From The Streets Into Homes of Their Own,” (June 2022)
Attachment 3: Online Article, Fast Company, “This California City Just Ended Chronic
Homelessness,” (January 2021)
Attachment 4: Online Article, Housing Matters, “Homeless Encampment Sweeps May
Be Draining Your City’s Budget,” (January 2023)
Attachment 5: Online Article, Mercury News, “Judge Temporarily Bars Oakland from
Clearing Notorious Homeless Encampment,” (January 2023)
*Handout 2.1-A: PowerPoint
*Handout 2.1-B: Mayor Mahan-Homelessness
*Handout 2.1-C: Director Beall
*Handout 2.1-D: DignityMoves
UNCLASSIFIED MANAGER:
Manager
Jennifer Codianne, 408-630-3876