BILL ANALYSIS �
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2013-2014 Regular Session |
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BILL NO: AB 976 HEARING DATE: June 25, 2013
AUTHOR: Atkins URGENCY: No
VERSION: May 28, 2013 CONSULTANT: Katharine Moore
DUAL REFERRAL: Judiciary FISCAL: Yes
SUBJECT: Coastal resources: California Coastal Act of 1976:
enforcement: penalties.
AMENDMENTS AGREED TO IN THIS COMMITTEE WILL BE FORMALLY TAKEN IN
THE SENATE JUDICIARY COMMITTEE IN ORDER TO EXPEDITE TRANSMITTAL
OF THE BILL SHOULD IT PASS THIS COMMITTEE TODAY.
BACKGROUND AND EXISTING LAW
The California Coastal Commission (commission) was created by
voter initiative and permanently established by the California
Coastal Act of 1976 (coastal act) (Public Resources Code (PRC)
��30000 - 30900). It seeks to protect the state's natural and
scenic resources along the California coast and has vested
regulatory authority for specified development activities in the
designated coastal zone. The commission's core program
activities include issuing and enforcing permits for coastal
development.
The coastal act requires a person undertaking development in the
coastal zone to obtain a coastal development permit in
accordance with prescribed procedures. The commission has no
administrative civil penalty authority and refers cases to the
Attorney General's office to be filed. Existing law (see PRC
�30820 et seq) authorizes the superior court to impose civil
liabilities between $500 and $30,000 for violations of the
coastal act. Additional penalties between $1,000 and $15,000
per day may be imposed for each day in which the violation
persists for intentional and knowing violations, plus exemplary
damages, if appropriate. Funds derived from penalties
associated with a violation of the coastal act are deposited in
the Violation Remediation Account (account) of the Coastal
Conservancy Fund where, on appropriation by the Legislature,
they are used to support the California Coastal Conservancy and
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for purposes of carrying out the coastal act.
From data provided by the commission, revenues to the account
from enforcement of the commission's authority from 1985 - 2008
averaged approximately $134,000 per year.
The recent semi-annual July - December 2012 report of the
commission's enforcement program showed there was a backlog of
approximately 1,800 cases (still true as of April 2013). This
is an increase in the backlog of approximately 500 cases since
2009. The report states that 34 cases are pending at the
Attorney General's office. Separate information provided by the
commission indicates that the majority of these cases are
cross-complaints when a commission order was challenged in
court.
In its analysis of the fiscal year 2008/09 budget, the
Legislative Analyst's Office (LAO) noted that the existing
process for the commission to issue a fine or penalty was
cumbersome and resulted in few fines and penalties due to the
high cost of pursuing enforcement through the courts. The LAO
recommended, in view of the fact that numerous agencies have
administrative civil penalty authority, that the commission be
given that authority as well. This recommendation was dropped
from the eventual budget bill. Since the recommendation was
made, two bills - AB 226 (Ruskin, 2009) and SB 588 (Evans, 2011)
- have sought to provide administrative civil penalty authority
to the commission. Both failed.
PROPOSED LAW
This bill would allow the commission to impose administrative
civil penalties for intentional and knowing violations of the
coastal act by a majority vote at a duly noticed public hearing.
Specifically, this bill would:
Authorize the commission to impose an administrative
civil penalty that may not exceed 75 percent of the amount
the court could impose for the same violation.
Prohibit a person from being subject to both this
penalty imposed by the commission and any civil penalty
imposed by the superior court for the same violation
Require the commission to take certain mitigating
factors into consideration when determining the penalty.
These include the nature, circumstance, extent and gravity
of the violation, the sensitivity of the resource affected
by the violation, and the prior history of violations,
among others.
Allow the commission, if this penalty is not paid, to
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record a lien on the person's property for the same amount.
State legislative intent that "de minimus" violations of
the Coastal Act - so long as the violator acts quickly to
correct the violation - will not lead to administrative
civil penalties.
Exempt a local government, special district or an agency
thereof, in certain circumstances, from being subject to
the administrative civil penalty
Sunset the commission's authority to impose these
penalties on January 1, 2017.
ARGUMENTS IN SUPPORT
According to the author, this bill "allows the [commission] the
ability to enforce against intentional violations of the coastal
act. AB 976 accomplishes this goal by granting the commission
the ability to administratively impose fines upon serious and
intentional violators of the [coastal act]."
"Coastal act violations threaten beach access, wildlife and
fragile coastal ecosystems. [?] Currently, the [commission] must
take violators who refuse to comply with orders to court through
an action of the Attorney General. [?] The [commission] has only
taken four violators to court in the last ten years, and the
current backlog of over 1,800 unresolved violations continues to
grow as recalcitrant offenders know that the commission lacks
the tools to compel compliance."
"The current rate of violations is accruing faster than the
commission can resolve them, leading to a growing and
unsustainable backlog of cases. California only has one
coastline, and damage to the coast can't always be undone - so
it is critically important that the legislature act now to
protect California's coast."
The Environmental Defense Fund adds "The deterrent component of
any regulatory scheme is important, particular for environmental
laws where restoration of violations often is difficult or
impossible. Penalties are a critical component of environmental
statutes and are the primary tool for persuading would-be
violators to comply with the law. Lack of administrative penalty
authority has been a longstanding deficiency in the commission's
enforcement program, which diminishes the commission's ability
to obtain swift voluntary resolution of outstanding violations."
ARGUMENTS IN OPPOSITION
The Orange County Board of Supervisors states "[the bill] would
create an unacceptable dynamic whereby the [commission] would be
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incentivized to impose fine and penalties, at the expense of due
process and rights for the accused, rather than pursuing those
fines and penalties through the judicial branch where that
function properly belongs."
A coalition letter from numerous opponents states, "... it is
difficult to believe that there are ongoing, egregious
violations that the [commission] has failed to pursue, or lacks
the authority to pursue. The [commission] has not demonstrated
this to be true, and to the contrary, has demonstrated extreme
vigilance in citing violations resulting in correction action."
"AB 976 creates a 'bounty hunter' mentality among [commission]
staff, would strip alleged violators of due process afforded by
the courts, provide the [commission] sweeping civil penalty
authority more appropriately reserved for the courts, and
provides a slippery slope to use administrative civil penalties
to augment the [commission] operating budget."
The Ventura County Cattlemen's Association, in comments echoed
by others, cited concerns about the potential for inadvertent
violations of the coastal act by routine agricultural operations
in the coastal zone.
COMMENTS
Sufficient time and evaluation data? The use of sunset clauses
provides for new law to come into force with the explicit
requirement that the law will have to be re-visited prior to its
expiration in order to evaluate how well (or not) the law is
working. The current sunset provision for this bill is 3 years
(imposed by the Assembly Appropriations Committee) which means
limited results will be available when a bill will have to be
carried to extend the authority without disruption. The
committee may wish to require a report with relevant information
be compiled by the commission in order for a future legislature
to make an informed decision about the impact of the
commission's proposed administrative civil penalty authority
prior to the sunset date expiration [Amendment 1].
A grace period . The author has proposed, consistent with the
legislative intent language to not penalize unintentional "de
minimus" violations of the coastal act, that violators of the
coastal act who fix certain violations within 30 days of
receiving notice of the violation be exempted from
administrative civil penalties. The committee may wish to
concur [Amendment 2].
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Existing administrative civil penalty authority at other
agencies . The California Energy Commission, the State Lands
Commission, the Oil Spill Response Administrator and an
additional 18 agencies or types of agencies have some form of
administrative civil penalty authority. Of particular interest,
the San Francisco Bay Conservation & Development Commission
(BCDC) has this authority. According to the commission,"BCDC,
the agency that most closely resembles the Commission in
structure and mission, resolves all of its violations
administratively and has never needed to resort to litigation."
Existing due process protections . The Administrative
Adjudication Bill of Rights (Government Code �11425.10 et seq)
provides specific due process protections when an agency - such
as the commission - conducts an adjudicative proceeding. For
example, presiding officers can be disqualified for bias,
prejudice or interest. Additionally, the Government Code
provides very specific procedural rules to ensure a fair
adjudication and the Code of Civil Procedure (�1094.5) provides
a process to appeal an agency's decision to a court.
"Bounty hunting". All administrative civil penalties will be
deposited in the Violation Remediation Account which is used to
support the California Coastal Conservancy, not the commission.
The enforcement backlog . Current information provided by the
commission, indicates that the enforcement backlog includes the
following types of violations (percentages do not sum to 100%
because some violations fall in multiple categories):
Major classes of violations (approximately 25 - 30%
each) - public access, Landform alteration and grading,
Unpermitted development in sensitive habitat and wetlands,
and Unpermitted removal of coastal vegetation.
More minor classes of violations (< 1 to approximately
10% each) - Water quality, diking, filling and dredging,
geological hazards, marine resources, public safety and
flood hazards, endangered species and archaeological and
cultural resources (such as Native American sites).
About 3/4s of current pending cases are unpermitted development
(or mostly so) and are a permit violation (July - Dec 2012
report)
Liked it on Facebook ? Sean Parker's recent wedding at the
Ventana Inn violated the coastal act. Working with the
commission, a negotiated settlement was reached.
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Related legislation
SB 588 (Evans, 2011) would have provided administrative fine
authority to the commission (died in Senate Judiciary Committee)
AB 226 (Ruskin, 2009) would have provided administrative fine
authority to the commission (passed the Assembly, placed on
inactive file on the Senate floor in September 2009)
AB 291 (Saldana, 2009) would have prohibited the commission from
approving coastal development permits if there is an outstanding
violation of the Coastal Act on the property (passed the
Assembly, placed on inactive file on the Senate floor in
September 2009)
SUGGESTED AMENDMENTS
AMENDMENT 1
Page 3, delete line 34 and replace with:
"(h) the commission shall prepare and submit a report to
the legislature by January 15, 2016, which includes all of
the following:
(1) the number of new violations reported annually to the
commission from January 1, 2014 through the preceding
calendar year
(2) the number of violations resolved from January 1, 2014
through the preceding calendar year
(3) the number of administrative penalties issued pursuant
to this section, the dollar amount of the penalties, and a
description of the violations from January 1, 2014 through
the preceding calendar year.
(i) this section shall remain in effect only until January
1, 2017."
AMENDMENT 2
Add section 30821.1:
"Administrative penalties pursuant to section 30821 shall
not be assessed in instances where the property owner
corrects the violation consistent with the requirements of
this division within 30 days of receiving written
notification from the commission regarding the violation,
provided the alleged violator can correct the violation
without undertaking additional development that requires a
permit under this division. This section shall not apply to
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violations of previous permit conditions."
SUPPORT
Planning and Conservation League (co-sponsor)
Sierra Club California (co-sponsor)
Azul
Black Surfers Collective
California Coastal Commission
California Coastal Protection Network
California Coastkeeper Alliance
California Native Plant Society
Coastwalk California
Committee for Green Foothills
County of Orange
Environmental Action Committee of West Marin
Environmental Defense Center
Environmental Defense Fund
Environmental Protection Information Center
Environmental Water Caucus
Friends of Del Norte
Green California
Greenspace
Heal the Bay
League for Coastal Protection
National Parks Conservation Association
Natural Resources Defense Council
North County Watch
Northcoast Environmental Center
Ocean Conservancy
PawPAC
Planning and Conservation League
Save the Park
Surfrider Foundation
Terra Foundation
The Wildlands Conservancy
WiLDCOAST
OPPOSITION
Alliance for Local Sustainable Agriculture
American Council of Engineering Companies of California
California Apartment Association
California Association of Realtors
California Aquaculture Association
California Building Industry Association
California Business Properties Association
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California Cattlemen's Association
California Chamber of Commerce
California Citrus Mutual
California Construction and Industrial Materials Association
California Cotton Ginners and Growers Association
California Farm Bureau Federation
California Fisheries and Seafood Institute
California Independent Petroleum Association
California Manufacturers and Technology Association
California Railroad Industry
California Sea Urchin Commission
California Travel Association
California Wetfish Producers Association
Employers Council of Mendocino County
Mendocino County Cattlemen's Association
Nisei Farmers League
Orange County Board of Supervisors
Orange County Business Council
Southwest California Legislative Council
Ventura County Cattlemen's Association
Western Agricultural Processors Association
Western States Petroleum Association
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