| Is the suspension of CEQA by the Governor in this CDAA program a state-wide or project specific suspension? | Is the suspension of CEQA by the Governor in this CDAA program a state-wide or project specific suspension? | <p>Enclosed herewith is the Proclamation of a State of Emergency regarding tree mortality. CEQA is encoded in Sections 21000 et seq. of the Public Resources Code. The scope and applicability of the suspension of Division 13 (commencing with section 21000) of the Public Resources Code and regulations adopted pursuant to that Division are expressly set forth the Proclamation.</p> |
| Why does Cal OES not have a sunset clause or termination date in the permit? | Why does Cal OES not have a sunset clause or termination date in the permit? | <p>The right of entry permit is for a specific purpose and therefore the permit is valid until the purpose is achieved. For purposes of the debris removal program, pursuant to 19 CCR section 2925, the removal of debris from private property occurs when there is an immediate threat to public health and safety. Further, debris removal is considered necessary when removal will: “(1) eliminate immediate threats to life, public health, and safety; (2) eliminate immediate threats of significant damage to improved public or private property; or, (3) be necessary for the permanent repair, restoration, or reconstruction of damaged public facilities.” (19 CCR § 2925 (b)). Accordingly, the time frame for the permit is based upon the fulfillment of the purpose for which the permit was granted.</p> |
| Why does Cal OES not make clear the significant risk property owners take assuming potential liability and waiving rights to file a claim when they sign the right of entry permit? | Why does Cal OES not make clear the significant risk property owners take assuming potential liability and waiving rights to file a claim when they sign the right of entry permit? | <p><br>Generally speaking, the Right of Entry permit for the tree mortality program is a contract between a property owner and the County. One of the terms in the contract is a hold harmless provision which is required by state law. Specifically, Government Code section 8682.6, requires that whenever a local agency is utilizing California Disaster Assistance Act funds to do a project, the local agency is required to hold the state harmless from damages due to the work for which the funds are allocated. As a result, Cal OES requires that the local agencies sign agreements holding the state and everyone working on behalf of the state - harmless. <br>Additionally, pursuant to 19 C.C.R. section 2925(a)(2)(C) to be eligible for California Disaster Assistance Act funds for debris removal activities: the local agency must have a signed statement from the property owner giving the local agency the right of entry and absolving the local agency and the state of any liability relative to removal.<br>If the property owner signed agreements excluding the contractors and the counties’ agents from the hold harmless provision it would not be an effective hold harmless provision in that it would not absolve the state and the local agency from any liability relative to the removal. <br>Ultimately, if the property owner desires to seek legal advice regarding the permit, the property owner is within his or her right to do so. If the terms are not palatable to the property owner, the property owner may decline to sign the permit and not accept services under the tree mortality program. In other words, the property owner may choose to directly pay for the work and negotiate a contract with a tree removal company.</p> |
| Why does Cal OES request the property owner take on additional risks by the assignment of certain responsibilities such as a utility location? | Why does Cal OES request the property owner take on additional risks by the assignment of certain responsibilities such as a utility location? | <p>An example of the Right of Entry permit is enclosed herewith. Paragraph 1 of the permit requires, in relevant part, “[o]wner shall make Owner’s best efforts to mark any sewer lines, utilities, septic tanks and water lines located on the Premises.” This best efforts requirement of communicating, by marking, any sewer lines, utilities, septic tanks and water lines located on the Premises serves the interest of all parties, including the property owner. Accordingly, based upon that clause alone, there are seemingly no additional risks assumed by the property owner.</p> |
| Why does Cal OES want a non-project specific right of entry permit (it does not state that it is solely for tree abatement and it does not limit the area to be inspected)? | Why does Cal OES want a non-project specific right of entry permit (it does not state that it is solely for tree abatement and it does not limit the area to be inspected)? | <p>The right of entry permit is for a specific purpose – debris removal relative to the tree mortality program. Paragraph 1 of the enclosed Right of Entry permit expressly addresses the purpose. </p> |
| Why has Cal OES taken such a different legal approach to the right of entry and tree removal program from what is being done by Caltrans? | Why has Cal OES taken such a different legal approach to the right of entry and tree removal program from what is being done by Caltrans? | <p>Cal OES’s right of entry and tree removal program is funded in part by California Disaster Assistance Act funds. Different sources of funds have different legal requirements. As discussed above, whenever a local agency is utilizing California Disaster Assistance Act funds to do a project, the local agency is required to hold the state harmless from damages due to the work for which the funds are allocated. As a result, Cal OES requires that the local agencies sign agreements holding the state and everyone working on behalf of the state - harmless.</p> |
| Why is the right of entry permit language different in other counties? | Why is the right of entry permit language different in other counties? | <p>Cal OES is unable to fully address this question without knowing which counties you are referring to in your question. That said and as discussed above, whenever a local agency is utilizing California Disaster Assistance Act funds to do a project, the local agency is required to hold the state harmless from damages due to the work for which the funds are allocated. Accordingly, there must be an agreement in place that holds the state harmless from damages.</p> |
