BILL ANALYSIS                                                                                                                                                                                                              1






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          |                                                                 |
          |         SENATE COMMITTEE ON NATURAL RESOURCES AND WATER         |
          |                   Senator Fran Pavley, Chair                    |
          |                    2009-2010 Regular Session                    |
          |                                                                 |
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          BILL NO: AB 226                    HEARING DATE: June 23, 2009  
          AUTHOR: Ruskin                     URGENCY: No  
          VERSION: June 16, 2009             CONSULTANT: Bill Craven  
          DUAL REFERRAL: Judiciary           FISCAL: Yes  
          SUBJECT: Coastal resources: California Coastal Act of 1976:  
          enforcement.  
          
          BACKGROUND AND EXISTING LAW
          The California Coastal Act (Act) vests in the California Coastal  
          Commission (CCC) regulatory authority for specified development  
          activities in the designated coastal zone. Courts are authorized  
          to impose civil liability on those who violate the act. The CCC  
          has authority to issue a cease and desist order to those who are  
          developing in the coastal zone without a permit. It may also  
          issue a restoration order when development has occurred without  
          a permit and continuing resource damage results. 

          Only superior courts are authorized to impose civil penalties on  
          those who violate the Act. The CCC has no civil penalty  
          authority. 

          PROPOSED LAW
          This bill would provide that a person who violates the act may  
          be subject to an administrative civil penalty that may be  
          imposed by the commission at a public hearing. The penalties  
          would be no less than $5000 and no more than $50,000 per  
          violation. (A superior court may impose civil penalties on any  
          person in violation of the Coastal Act of between $500 and  
          $30,000; additional penalties between $1,000 and $15,000 per day  
          for each day in which a violation persists may be imposed when  
          anyone knowingly and intentionally violates the Coastal Act,  
          plus exemplary damage, where appropriate.) 

          The Commission would be required to consider the nature,  
          circumstance, extent, and gravity of the violation; whether the  
          violation is susceptible to restoration or other remedial  
                                                                      







          measures; the sensitivity of the resource affected by the  
          violation; and the cost to the state of bringing the action. The  
          CCC would also consider whether the violator undertook voluntary  
          restoration or remedial measures, any prior history of  
          violations, the degree of culpability, economic profits, if any,  
          resulting from, or expected to result as a consequence of, the  
          violation, and such other matters as justice may require.  
          Violators who commit minor violations that are corrected quickly  
          would not be subject to the civil penalty provisions.

          The CCC would be able to attach a lien on the property on which  
          the violation occurred in the amount of the penalty.  It would  
          also be able to sue to collect unpaid civil penalties. Civil  
          penalties would be deposited into an existing Coastal Act  
          Services Fund and would be subject to appropriation by the  
          Legislature. A violator would not be subject to monetary  
          liability from both the CCC and a court for the same violation. 

          In response to a LAO recommendation, this bill would terminate  
          the present practice of transferring all CCC enforcement  
          revenues to the Coastal Conservancy. The conservancy uses these  
          revenues in its coastal access program. This would result in a  
          slight decrease ($134,000) in this program, based on normal  
          annual receipts. This fund, however, requires that the  
          conservancy retain $500,000 from this fund for that purpose, but  
          any remainder would be used by the CCC for its enforcement  
          program and other functions. All enforcement revenues are  
          transferred to the Coastal Conservancy. 

          ARGUMENTS IN SUPPORT
          1. According to the author's office, the CCC does not have  
          credible enforcement capability. It does not have existing  
          authority to impose civil penalties, and thus the Coastal Act  
          contains no effective deterrent against would-be violators. The  
          author provided considerable academic research to support the  
          proposition that a credible deterrent can greatly increase the  
          ability of an environmental agency to obtain voluntary  
          compliance. 

          2. The author also contends that the CCC is handicapped by its  
          current reliance on the Attorney General to bring actions for  
          civil penalties. This is a time-consuming and resource-intensive  
          process.  Since 2003, the Commission has only pursued four cases  
          in court (though it also pursues cross-complaints when sued.) 

          3. The CCC is one of the few major regulatory agencies in  
                                                                      







          California that lacks the authorization to impose civil  
          penalties. Agencies such as the San Francisco Bay Conservation  
          and Development Commission (BCDC), the State Water Resources  
          Control Board (and regional boards), State Lands Commission,  
          Department of Fish and Game, California Energy Commission, Air  
          Resources Board, Department of  Forestry, Department of Toxic  
          Substances Control, Integrated Waste Management Board,  
          Department of Health Services, Department of Food and  
          Agriculture, Structural Pest Control Board, regional air  
          districts, and local agencies all have administrative civil  
          penalty authority. 

          BCDC's authority to regulate development along San Francisco Bay  
          serves as the best analog to the work of the Commission. Using  
          its civil penalty authority, BCDC has been successful at  
          discouraging and resolving the vast majority of violations  
          without resorting to litigation.  

          4. The Legislative Analyst Office (LAO) recommended that the CCC  
          should have civil penalty authority in its 2008-09 analysis of  
          the state budget. Senate Budget Subcommittee #3 adopted this  
          recommendation, but it was later dropped from the budget.

          5. Are Cease and Desist Orders Inadequate?  
          The CCC has been able to resolve some violations through its  
          existing authority to issue cease and desist orders. In those  
          cases, violators may pay a fine, although a lesser fine than  
          could be imposed by a court. Violators who choose not to pay a  
          fine may also be aware that the CCC may not have the resources  
          to pursue a court-ordered penalty. This is especially true at  
          the present time when the CCC, because of budgetary cuts, has  
          only one enforcement official for the entire state and a current  
          backlog of 1,300 cases. Since 1985, revenues in the CCC  
          enforcement account have averaged $134,000. 

          ARGUMENTS IN OPPOSITION
          A coalition of opponents argues that this bill "creates a  
          'bounty hunter' dynamic" that would encourage the CCC to seek  
          large penalties and fees to support its budget."  Rather than  
          recognizing that the CCC could provide more complete and timely  
          services to applicants and local governments if it received an  
          adequate budget, the opposition imagines that a basic  
          enforcement provision would become some huge budget supplement  
          for the CCC. An administrative penalty would remain subject to  
          judicial review in appropriate "bounties" would likely be struck  
          down. In a real-world comparison, the Bay Conservation and  
                                                                      







          Development Commission which has similar authority to the CCC in  
          the Bay Area has had this enforcement authority for years.  
          Furthermore, any administrative penalty would be subject to  
          judicial review; the Commission argues that any penalty sought  
          as a "bounty" would not withstand this review.  It is also worth  
          noting that BCDC received $113,000 in civil penalties last  
          year--hardly a "bounty" that would reasonably be feared by the  
          opposition. 

          COMMENTS 
          By arrangement with the author and the Senate Judiciary  
          Committee, the following technical amendments will be adopted  
          when the bill is heard in Judiciary. This first removes the  
          concerns of the California Land Title Association. The second  
          removes the opposition of the local governments. 

          SUGGESTED AMENDMENTS 

               AMENDMENT 1  
               Page 3, line 10, (e) Failure to pay the fine imposed by the  
               commission shall allow the commission to  file   record  a lien  
               on the property in the amount of the penalty assessed by  
               the commission.  This lien shall have the force,   effect, and  
               priority of a judgment lien.  

               AMENDMENT 2 
               Page 3, line 16, add: (g) "Person" for the purposes of this  
               section does not include local governments, special  
               districts, or agencies thereof when acting in their  
               legislative and adjudicative capacities.

          SUPPORT
          California Coastal Commission
          California Coast Keeper Alliance
          Environmental California
          Environmental Defense Center
          Green California 
          Heal the Bay
          Natural Resources Defense Council 
          Planning and Conservation League
          Sierra Club California. 

          OPPOSITION
          California Land Title Association - unless amended
          League of Cities-unless amended 
          American Council of Engineering Companies of California
                                                                      







          California Association of Realtors
          California Business Properties Association
          California Business Industry Association
          California Chamber of Commerce
          California Manufacturers and Technology Association.