This case was last updated from Santa Clara County Superior Courts on 08/07/2019 at 18:42:02 (UTC).

Heckman, et al. v. Santa Clara Valley Water District, et al.

Case Summary

On 03/22/2018 Heckman filed a Personal Injury - Other Personal Injury lawsuit against Santa Clara Valley Water District. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judges overseeing this case are Walsh, Brian C and Kirwan, Peter. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******5285

  • Filing Date:

    03/22/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judges

Walsh, Brian C

Kirwan, Peter

 

Party Details

Plaintiffs

Heckman, Anna

Heckman, Eric

Defendants

Santa Clara Valley Water District

City of San Jose

Other

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorney

Hare, Jeffrey B

Other Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Notice

Notice CMC 10-5-18 at 10am in D19: Comment: CMC set for 10/5/18 at 10am in D19 (16 related cases)

Complaint: Amended

Complaint Consolidated First Amended: Comment: Consolidated First Amended Complaint

Notice

Notice CMC reset to 6-8-18 at 10am in D19: Comment: CMC reset to 6/8/18 at 10am in D19

Order

Order & Notice of Reassignment of Case to Dept 19: Comment: Order & Notice of Reassignment of Case to Dept 19, Hon. Peter H. Kirwan presiding - signed/TCZ

Summons: Issued/Filed

Summons Issued Filed:

Civil Case Cover Sheet

Civil Case Cover Sheet: Comment: COMPLEX

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

 

Docket Entries

  • 10/05/2018
  • Conference: Case Management - Judicial Officer: Kirwan, Peter; Hearing Time: 10:00 AM; Cancel Reason: Vacated

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  • 07/06/2018
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  • Complaint: Amended - Complaint Consolidated First Amended: Comment: Consolidated First Amended Complaint

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  • 06/25/2018
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  • Notice - Notice CMC 10-5-18 at 10am in D19: Comment: CMC set for 10/5/18 at 10am in D19 (16 related cases)

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  • 06/08/2018
  • Conference: Case Management - Judicial Officer: Kirwan, Peter; Hearing Time: 10:00 AM; Result: Held; Comment: (1st CMC)

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  • 06/08/2018
  • Minute Order

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  • 06/08/2018
  • Minute Order

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  • 04/03/2018
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  • Notice - Notice CMC reset to 6-8-18 at 10am in D19: Comment: CMC reset to 6/8/18 at 10am in D19

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  • 04/03/2018
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  • Order - Order & Notice of Reassignment of Case to Dept 19: Comment: Order & Notice of Reassignment of Case to Dept 19, Hon. Peter H. Kirwan presiding - signed/TCZ

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  • 03/22/2018
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  • Summons: Issued/Filed - Summons Issued Filed:

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  • 03/22/2018
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  • Civil Case Cover Sheet - Civil Case Cover Sheet: Comment: COMPLEX

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  • 03/22/2018
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  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

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Complaint Information

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each of them, took no action in response to the filing of these claims, thereby effectively denying said claims.

NATURE OF THE CASE AND GENERAL ALLEGATIONS

7. This action arises out of flooding which occurred along a portion of Coyote Creek sometimes known as the “mid-Coyote Creek” portion that runs roughly from Tully Road to the south (upstream) to Montague Expressway to the north (downstream). This flooding took place on February 21, 2017, when Anderson Reservoir “filled and spilled,” dumping several thousand cubic feet per second of runoff into Coyote Creek. As a result of this overspilling, and compounded by surface runoff from storms which occurred on February 20, the Coyote Creek channel filled and in places overspilled its banks in the area along the reaches of Coyote Creek located within the mid-Coyote Creek area, flooding homes in communities such as the Rock Springs, Olinder, and Naglee Park neighborhoods. 8. The flooding commenced early on Tuesday morning, February 21, 2017, and continued throughout the day and into the early evening hours, when the peak flows began to subside. As the water levels rose throughout the day, residents frantically tried to rescue their personal possessions, but as the flooding occurred without any warning or notice to the Plaintiffs, many were unable to save or remove their belongings, or take reasonable measures to protect their personal or real property. Basements and first floors filled with filthy, muddy water contaminated with pollutants from upstream runoff. In many cases, the onlyJose Fire Department Urban Search and Rescue (USAR) boats that had been dispatched to the scene. 9. Santa Clara County contains several watersheds, the largest of which is the Coyote Creek watershed, measuring over 300 square miles in size. Water from rainfall and other sources within this watershed primarily drain via Coyote Creek into the San Francisco Bay at the

northern boundary of the City of San Jose adjacent to Alviso, California. 10. Coyote Creek runs approximately 63 miles in length from its origin in Henry Coe State Park to its outfall in San Francisco Bay. Located upstream, near its point of origin, are two man- made reservoirs, which serve to capture and hold storm water runoff both as a flood control measure, and to retain water supplies to recharge ground water aquifers located in Santa Clara County. One of these is Coyote Reservoir, which was constructed in or around 1935, and has a capacity of approximately 23,400 acre feet. The other is Leroy Anderson Reservoir, constructed in 1950, with a capacity of approximately 91,300 acre feet, according to State Department of Water Resources statistics. (DISTRICT records put the capacity of Anderson at approximately 89,000 acre feet).

11, The DISTRICT acknowledges that one of its main jobs is to provide flood protection for residents of Santa Clara County. The Santa Clara Valley Water District Web Site noted that the “creeks and rivers that helped form the picturesque Santa Clara Valley” were “subject to periodic flooding.” When Spanish settlers began arriving in 1769, there were about 10,000 Ohlone natives living in the area, who knew that during times of heavy rains, the valley’s creeks and rivers would overflow. As the valley population grew, the periodic overflowing of local creeks and rivers began “to be more than an occasional inconvenience — flooding began to threaten the new homes, business and lives.” The District Web site declares that “Protecting homes, businesses and transportation networks from the devastating effects of floods is one of the main jobs of the water district.”

12. Between 1950, the year in which Anderson Dam was constructed, and not counting the 2017 event, there were twelve (12) major flood events in Santa Clara County. In four (4) of these events!, Anderson Reservoir has filled to capacity and spilled. Each time Anderson

Reservoir filled and spilled, flooding has occurred in the mid-Coyote Creek area. When

! Flood Reports were prepared for 1955-56, 1978, 1980, 1982, 1983, 1986, 1995, 1996-97, 1998, 2009, and 2012. Anderson Reservoir was reported to have filled and spilled in 1982, 1983, 1997 and 1998. In each of these four years, flooding was reported to have occurred in the mid-Coyote Creek region. With minor exceptions, when Anderson did not fill and spill, no flooding was reported in the mid-Coyote Creek region, even if extensive flooding occurred elsewhere in the County. Anderson Reservoir did not fill and spill during a season for which a flooding report was prepared, little to no flooding occurred in the mid-Coyote Creek area. In other words, there is a direct correlation between overspilling of Anderson Reservoir and flooding and resulting damage in the mid-Coyote Creek area.

13. Inearlyl1995, heavy rainstorms fell in Santa Clara County, causing watersheds across the valley to become saturated. Flooding occurred in many areas of the County. The surface of Lexington Reservoir rose 28 feet in two days. The Almaden, Stevens Creek, and Vasona Lake Reservoirs filled and spilled during the storm. Flows overtopped the banks of the Guadalupe River and caused flooding in portions of downtown San Jose. Flooding also occurred in many creeks in southern areas of the County. The District’s Flood Report for the 1995 flood noted that the District’s ten (10) reservoirs “substantially reduced the flood peaks,” and noted that the “effect of the Anderson-Coyote system is even more dramatic. If the reservoirs had not been in place to absorb the floodwaters on March 10 (1995) the Coyote Creek would have experienced near record flows and cause in excess of an estimated $300 million damage.” The 1995 Report declared that the “District’s reservoirs are an integral part of the flood protection system in Santa Clara County.”

14. In 1997, rainstorms in January caused watershed areas throughout Santa Clara County to become saturated, and runoff caused heavier than normal flows to occur throughout the valley, as well as in Coyote Creek, but no flooding occurred until the last weekend in January, when Anderson Reservoir filled and started spilling over the spillway. News accounts and television images of the dramatic overspilling of Anderson Reservoir were broadcast by local networks. Television reporters went to locations that had flooded in 1995 (i.e., Henry’s HiLife restaurant), to see what was being done to prepare. The Santa Clara Valley Water District announced that sandbags would be available at locations near the Guadalupe River. it seemed that no one — except those who lived near Coyote Creek — figured out that Anderson Reservoir emptied into

Coyote Creek, not the Guadalupe River or Los Gatos Creek. 15. On the morning of Sunday, January 27, 1997, residents living along sections of Coyote Creek in the Naglee Park area between William St. on the south and Santa Clara Street on the north, observed that water levels in Coyote Creek were rising. Neighbors scrambled to help each other move furniture and vehicles out of harms way. Phone calls to the District and the City went unanswered due to the fact it was Sunday. Despite the fact that the Anderson Reservoir spillway had been overspilling for three days, neither the District Emergency Operations Center nor the City of San Jose EOC were activated. Online alert gauges showed that the combination of rainfall and overspilling would cause flooding to occur in the mid- Coyote Creek area to peak at or around late afternoon into early evening.

16. In 1998, heavy rainfall once again caused Anderson Reservoir to fill and spill, and water levels rose in the mid-Coyote Creek area, and some flooding of lower lying properties and the mobile home parks was reported. However, the flow rates and water levels did not reach the same levels as had occurred in 1997. Nevertheless, it was readily apparent that the single, undersized discharge outlet built into Anderson Reservoir was inadequate to quickly reduce water levels to avoid flooding from occurring downstream in the mid-Coyote Creek areas.

17. In or around 2011, due to concerns about the seismic stability of the earthen dam, the State Department of Water Resources (DWR), by and through its Division of Safety of Dams (DSOD), restricted the amount of water that the DISTRICT could allow to be held in Anderson Reservoir to no more than sixty-eight (68) percent of total capacity.

18. In early January, 2017, weather forecasts by the National Weather Service (“NWS”) predicted substantial rainfall that included what meteorologists refer to as “atmospheric rivers,” which were predicted to bring exceptional amounts of rainfall to the Bay Area and Northern California. On or around January 8, 2017, DISTRICT opened the sole discharge outlet to release the maximum amount of water possible from Anderson Reservoir, at a rate of 425 cubic feet per

second (“cfs”). 19. By oraround January 22, 2017, the water level in Anderson Reservoir reached and began to exceed the maximum restricted level of 68%, in violation of the restrictions imposed by DSOD. The DISTRICT was aware that if Anderson Reservoir was allowed to {ill, it not only would create a risk of catastrophic flooding and inundation with a threat to lives and property classified by DSOD as “extremely high.”

20. Moreover, the DISTRICT knew, or should have known, that if Anderson Reservoir was allowed to fill and spill, there would be a high likelihood of flooding in Coyote Creek, including but not limited to the mid-Coyote Creek area.

21. On or about February 13, 2018, the DISTRICT contacted DSOD via e-mail, asking DSOD to take a look at a proposal to install pumps reduce the level of water in Anderson Reservoir. The DISTRICT’s request was stated in a way that indicated that the DISTRICT had no immediate plans to install a pump system, and in the ensuing exchange of e-mails between the DISTRICT and DSOD, no further action was taken. If is noteworthy that on February 12, 2018, the day prior to the initial request to review the DISTRICT’s proposed pump system, officials at DWR had ordered the immediate evacuation of approximately 188,000 residents in the path of Oroville Dam in Butt County, fearing the imminent failure and collapse of the tallest dam in the United States.

22. On or around Wednesday, February 15, 2017, the County of Santa Clara Office of Emergency Services (OES) commenced a series of conference calls involving a wide range of public agencies and organizations, including the National Weather Service (NWS), the City of San Jose, Santa Clara Valley Water District, the Santa Clara County Sheriff’s Office, and several local cities and other agencies. The stated purpose for the conference call was to “Share Situational Awareness, Discuss Agency Issues, and Identify Resource Needs.” The “Event Overview” stated, in part, that the “cumulative effect of multiple storms that will likely impact

area rivers, creeks, and generate possible land/mudslides.” The Operational Plan Overview 10

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stated, in pertinent part, that “It is expected that Anderson Dam will begin spilling prior to or during the next series of storm systems.”

23. During the Wednesday, February 15 OES Conference Call, the DISTRICT reported that Anderson, Coyote and Lexington Reservoirs were at 99% of capacity, and predicted that the upcoming storm forecast for Friday (February 17) could increase the flow in Coyote Creek to 5000 cfs “due to additional spillway flow.”

24, During the OES Conference Call on Thursday, February 16, the City of San Jose reported it was “Coordinating with city departments to identify potential evacuation center and shelter locations in the event of Coyote Creek flooding.”

25. During the OES Conference call on Friday, February 17, the NWS noted there would potentially be 4 inches of rain the mountains and 3 inches of rain in the foothills. The DISTRICT reported “Concern for Monday storm on Coyote Creek. Projected 7000 cfs peak spillway flow.” The City of San Jose reported that four warming centers were open Monday through Wednesday morning, and that calls reporting downed trees were up.”

26. During the OES Conference call on Monday morning, February 20, the NWS reported a Flood Warning was in effect for Coyote Creek at Edenvale,” and reported moderate to heavy rainfall over the next 6 — 12 hours. The DISTRICT reported that four reservoirs were spilling: Anderson, Uvas, Lexington, and Coyote. The DISTRICT reported that “Anderson is projected to hit 5000 — 8000 cfs over spillway with peak flow at 10am tomorrow.” The City of San Jose reported that the Emergency Operations Center (EOC) had been activated; they were monitoring reservoirs and streams, and that they would need assistance for creek debris cleanup. San Jose Fire Department had doubled Urban Search and Rescue (USAR) Staffing.

27. On Monday afternoon, February 20, the DISTRICT sent an e-mail update stating that peak spill flow forecasts were now between 7,000 and 9,000 cfs, and with respect to Coyote

Creek Flood Thresholds, it reported “7,400cfs — Rock Springs neighborhood.”page 8 can't be parsed

of the day the long-predicted flooding was impacting neighborhoods throughout the mid-Coyote Creek area of San Jose, the CITY was “creating a flyer” to distribute to “potential flood areas.” 32. Despite daily participation in the OES Conference calls commencing on February 15, at no time prior to Tuesday, February 21, did the DISTRICT or the CITY undertake any measures or efforts to warn residents of the possibility of flooding. Moreover, despite the fact that the DISTRICT and the CITY knew, from past experience, that overspilling of Anderson Reservoir would result in flooding in the Rock Springs, William St Park, Arroyo Way, and Golden Wheel mobilehome park areas, among others, no effort was made to notify, alert or otherwise warn the residents, homeowners, or occupants of these properties of the upstream conditions.

33. Justas occurred in January, 1997, local news networks broadcast dramatic images of the Anderson Reservoir spillway over the weekend of February 18 and 19, and DISTRICT and CITY offices were closed for the three-day Presidents’ Day weekend. On Sunday afternoon, February 19, one local news channel broadcast a report from Anderson Reservoir, showing the spillway, and saying that flooding was expected to occur along Coyote Creek. However, attempts to reach DISTRICT or CITY officials were either unsuccessful or misdirected. No alerts or notices to residents or homeowners or occupants living near or along Coyote Creek were sent out.

34. On Sunday afternoon, February 19, concerned citizens were seeing creek levels rising and attempted to notify authorities, including firemen at Station 8, located immediately adjacent to Coyote Creek at the East Santa Clara Street bridge. The calls were either unanswered or misdirected. A phone call to 911 to report unusually high levels of water in Coyote Creek were relayed to the San Jose Water Company. In a phone conversation with a hydrologist with the DISTRICT late Sunday evening, the hydrologist confirmed that the Alert Gauges were reporting higher flow rates of water in Coyote Creek as the spilling continued. The NWS was reporting

that there would be a significant storm event on Monday, February 20.page 10 can't be parsed

July 2013). FEMA categorizes downstream hazard potential as low, significant, or high. DSOD adds a fourth category, “Extremely High,” to identify dams that may impact “highly populated

areas or critical infrastructure, or have short evacuation times.” (Emphasis added.) The DSOD

Data Definitions states that the downstream hazard classification indicates that the loss of human life would be “considerable” in the event of failure. (The downstream hazard for Oroville Dam is also rated as “Extremely High.”).

39. Fuarther still, DISTRICT was concerned enough about overspilling of Anderson Reservoir that it made an effort to see if DSOD would review and approve plans for a pump-over solution a full week ahead of the actual flooding. However, instead of adhering to standard procedures for approval of such projects, the inquiry was made informally via e-mail, and although DSOD indicated they would support the proposal, DISTRICT took no further steps to implement the plan other than to supply vendor photos and materials to DSOD. DSOD officials, who were responding to the disaster at Oroville Dam at the same time DISTRICT submitted their untimely request for review, appeared confused by the nature of DISTRICT’s request, and by the time the determination that more formal request procedures would be required, the flooding that might have been prevented or mitigated had already occurred.

40, Based on the same record of historical data, CITY knew, or should have known, that flooding was highly likely to occur along Coyote Creek. Despite forecasts and warnings from the NWS, and historical knowledge that the combination of heavy rain, saturated ground, and overspilling of Anderson Reservoir would result in flooding in the mid-Coyote Creek area, including areas which had flooded previously such as the Rock Springs, William Street, Olinder School, Arroyo Way, Roosevelt Park, and the Golden Wheel Mobilehome Park neighborhoods and nearby environs, CITY took no action to prepare, warn, prevent, or mitigate against potential damage to the residents, homeowners, occupants or visitors to these areas. According to news

accounts, CITY discounted a direct warning it had received of a serious upgraded NWS forecast from the DISTRICT via e-mail early the morning of February 21, and was clearly surprised when 911 reports of flooding started coming in during mid-morning,

41. Both DISTRICT and CITY officials were participating in County OES conference calls for a full week ahead of the flooding, and e-mails concerning the flooding were sent to CITY officials at all levels advising of the potential for flooding as a result of the conditions and forecasts.

42. Exacerbating the problem, the CITY knew the position of Director of Emergency Services had been vacant since near the beginning of the rainy season, and knew the position had not been filled as of the date of the flooding. As a consequence, the role was being handled by an Assistant City Manager who admitted he did not understand the charts and metrics provided by the DISTRICT. According to accounts in the news and in a detailed analysis prepared by Witt-O’Brien’s, there was considerable confusion in the CITY EOC as a result of a lack of leadership, preparation and trained personnel. Phone calls attempting to reach the EOC were coming in so fast they simply stopped answering the phone, and when a field staff member texted a photo of the flooding, the Assistant City Manager reportedly stated “How can that be happening?”

43, Even with the benefit of historical data, significant warnings from NWS and other agencies, including the NWS, County OES, and the disaster at Oroville Dam that had occurred the previous week as a result of the same set of weather conditions that were impacting the Bay Area, neither the DISTRICT nor CITY officials took any steps to prepare, warn, protect, or mitigate against the pending damages that would result from the flooding that occurred. Although emergency crews worked tirelessly throughout the day to rescue hundreds of victims, and evacuation shelters that had been set up the prior week were activated, CITY officials continued to stumble in their response. As of 3:00 p.m. the afternoon of the flooding, the CITY

reported it was “creating a flyer” to notify residents in the flood areas, and it wasn’t until afterpage 13 can't be parsed

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to carry out the task of maintaining safe and clean creeks within the watershed area, for the benefit of the entire public, including but not limited to Plaintiffs.

83. Defendant DISTRICT was fully aware that it was and had been operating Anderson Reservoir under restrictions imposed by DSOD in 2011, prohibiting storage of more than 68% o capacity due to concerns about seismic instability of the Anderson Dam and the extremely high level of risk to persons and property in the event of dam failure. Further, DISTRICT was aware, based on previous events including the flooding in 1997 and 1998, that overspilling of Anderson Reservoir would result in flooding and damage to persons and property along the mid-Coyote Creek reaches. Despite the clear foreseeability of damages that could result from allowing Anderson Reservoir to fill and spill, DISTRICT failed to take reasonable steps to abate, prevent, or otherwise reduce the level of risk and therefore mitigate damages.

84. Defendant CITY is responsible for providing services pursuant to its municipal authority to provide for the public health, safety and welfare of its residents, including, but not limited to maintaining storm drain systems, emergency preparedness operations, and providing police and fire services. Defendant CITY failed to take reasonable steps to ensure that the position of the Director of Emergency Services, or in the alternative that the services and duties of that position were being properly performed, during a period of time from approximately November, 2017, through the date of the flooding in February, 2018. Despite NWS forecasts of exceptionally high levels of rainfall, and despite specific warnings issued by NWS and other agencies during the week prior to the flooding, CITY failed to take any reasonable measures to warn or alert residents of the danger, inspect or confirm that the storm drain systems in the area likely to flood were functioning, and further failed to properly coordinate with DISTRICT or County or other agencies in an effort to mitigate the hazard.

85. Defendants, and each of them, had duties which required them to exercise reasonable and ordinary care in using public resources to identify, mitigate, and attempt to prevent a known

dangerous condition, namely the damage that was the foreseeable consequence of Defendants’ failure to properly maintain, manage, and operate the public works under their respective jurisdictions and operational control, and at a minimum, to alert and warn the public, including and specifically Plaintiffs, when it became substantially likely that flooding would occur that would result in damages to Plaintiffs.

86. Defendants, and each of them, created, operated, and were responsible to maintain and manage these public works, but failed to exercise reasonable and diligent measures to mitigate, abate, and warn Plaintiffs, even though Defendants had the ability to do so, including but not limited to providing adequate warning to Plaintiffs of the risk of damages that were likely to occur, and in fact did occur.

87. Asadirect and proximate result of Defendants negligence and breach of their duty of care, Plaintiffs’ personal and real property sustained damages as described herein in an amount

to be proven at trial.

FIFTH CAUSE OF ACTION BREACH OF MANDATORY DUTY

Against Defendant Santa Clara Valley Water District 88. Plaintiffs incorporates by reference Paragraphs 1 through 87, inclusive, of this Complaint as though fully set forth herein. 89. The DISTRICT, initially formed as the Santa Clara Valley Water Conservation District i or around 1929, was subsequently renamed the Santa Clara Valley Flood Control and Water Conservation District (Act 1170, Ch 1405 Stats 1951). Pursuant to the Act, the DISTRCT was, in part, to “provide for the control and conservation of flood and storm waters and the protection of watercourses, watersheds, public highways, life and property from damage or destruction from such waters ...” 90. The DISTRICT owns, operates, maintains and manages Anderson Dam, which is under

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