Amended in Senate April 1, 2013

Senate BillNo. 753


Introduced by Senator Steinberg

(Coauthors: Assembly Members Dickinson and Pan)

February 22, 2013


An act to amend Sectionbegin delete 8709.5 ofend deletebegin insert 8732 of, to add Sections 8579, 8710.2, 8710.3, and 8710.4 to, and to repeal and add Article 6 (commencing with Section 8700) of Chapter 3 of Part 4 of Division 5 of,end insert the Water Code, relating to flood protection.

LEGISLATIVE COUNSEL’S DIGEST

SB 753, as amended, Steinberg. Central Valley Flood Protectionbegin delete Board: encroachments.end deletebegin insert Board.end insert

begin insert

(1) Existing law provides for the Central Valley Flood Protection Board with the authority to construct and maintain various flood control works. Existing law authorizes the board to hold a hearing or partial hearing before a committee of one or more members of the board, or before the general manager or chief engineer of the board, at any place within the state.

end insert
begin insert

This bill would eliminate the authorization for the board to hold a hearing before the general manager and would authorize the board to hold a hearing or partial hearing before a qualified neutral hearing officer designated by the board president or the executive officer.

end insert
begin insert

(2) Existing law requires specified plans that contemplate the construction, enlargement, revetment, or alteration of any levee, embankment, canal, or other excavation in the bed of or along or near the banks of the Sacramento or San Joaquin Rivers or any of their tributaries or specified lands to be approved by the board before construction is commenced.

end insert
begin insert

This bill would generally prohibit a person or governmental agency from placing an encroachment over, on, in, or under flood control facilities, works, or lands under the jurisdiction of the board without obtaining an encroachment permit from the board, as prescribed. This bill would generally prohibit a person or local governmental agency from commencing construction of any flood facility or flood facility improvement that encroaches on a flood control facility, work, or land, as specified, under the jurisdiction of the board without obtaining a flood facility improvement permit from the board. This bill would authorize the board to order the removal or modification of an encroachment that was previously issued a permit by the board if the board makes a specified finding.

end insert
begin insert

This bill would require any person or public agency requesting approval of either an encroachment permit or a flood facility improvement permit to, at the discretion of the board, either submit a reasonable filing fee prescribed by the board pursuant to regulation that covers but does not exceed the costs of the board and the department, or agree to pay the actual, reasonable costs of the board and the department to review and process the application. This bill would require the board, prior to the implementation of these filing fees or the adoption of a revised filing fee schedule, to perform a prescribed study related to the fees and, following the study, to provide notice to specified committees of the Legislature. This bill would require these fees to be deposited in the Central Valley Flood Protection Board Permit Fund, which this bill would create. This bill would provide that moneys in the fund are available, upon appropriation by the Legislature, as prescribed.

end insert
begin insert

(3) Existing law authorizes the board, and the executive officer if delegated that authority, to issue an order directing a person or public agency to cease and desist from undertaking, or threatening to undertake, an activity that may encroach on levees, channels, or other flood control works under the jurisdiction of the board. Existing law requires the cease and desist order to be issued only if the person or public agency has failed to respond in a satisfactory manner to a prescribed notice provided, as specified. Existing law provides that a cease and desist order is effective upon its issuance and that copies are required to be served immediately by certified mail upon the person or agency subject to the order.

end insert
begin insert

This bill would repeal these provisions and provide that it is unlawful for any person or public agency to interfere with or obstruct the performance of the maintenance or operation of works or other plans adopted by the board within the jurisdiction of the board, as specified.

end insert
begin insert

This bill would authorize the board, the executive officer, the department, or certain local agencies to issue a notice of violation, as specified, if it is determined that any person or public agency has undertaken, is threatening to undertake, or maintains any encroachment, improvement, or activity in violation of certain provisions. If the board or executive determines that any person or public agency has failed to adequately respond to a notice of violation, this bill would authorize the board or executive officer to issue an order directing that person or public agency to cease and desist, as specified. This bill would provide that if the board determines that any person or public agency has failed to correct a violation as required in a cease and desist order, the board may issue an enforcement order, as prescribed.

end insert
begin insert

This bill would provide the board, executive officer, Department of Water Resources, and local agencies that operate and maintain facilities and works on behalf of the board with the authority, as prescribed, to take administrative or civil enforcement actions to abate and remedy any interference or potential interference with these works. This bill would establish the Flood Risk Management Fund in the State Treasury and require all funds received from these penalties to be paid into the fund and available, upon appropriation by the Legislature, to be expended by the board to carry out enforcement of these provisions.

end insert
begin delete

Existing law provides for the Central Valley Flood Protection Board with the authority to construct and maintain various flood control works. Existing law authorizes the board, and the executive officer if delegated that authority, to issue an order directing a person or public agency to cease and desist from undertaking, or threatening to undertake, an activity that may encroach on levees, channels, or other flood control works under the jurisdiction of the board. Existing law requires the cease and desist order to be issued only if the person or public agency has failed to respond in a satisfactory manner to a prescribed notice provided as specified.

end delete
begin delete

This bill would authorize notice to be provided by posting a written notice on the structure or facility that would be the subject of the order.

end delete
begin delete

Existing law provides that a cease and desist order is effective upon its issuance and that copies are required to be served immediately by certified mail upon the person or agency subject to the order.

end delete
begin delete

This bill would authorize service of the cease and desist order by posting the order on the structure or facility that is the subject of the order.

end delete

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P4    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 8579 is added to the end insertbegin insertWater Codeend insertbegin insert, to read:end insert

begin insert
2

begin insert8579.end insert  

(a) Any aggrieved person shall have a right to judicial
3review of any decision or action of the board, or the executive
4officer acting pursuant to delegated authority, by filing a petition
5for a writ of mandate in accordance with Section 1094.5 of the
6Code of Civil Procedure, within 60 days after the decision or action
7has become final.

8(b) For purposes of this section, an “aggrieved person” means
9any of the following:

10(1) A person or public agency that, in person or through a
11representative, appeared at a public hearing of the board in
12connection with the decision or action appealed.

13(2) A person or public agency that, by other appropriate means
14prior to the decision, informed the board of the nature of the person
15or public agency’s concerns.

16(3) A person or public agency that for good cause was unable
17to appear, as described in paragraph (1), or inform the board, as
18described in paragraph (2).

end insert
19begin insert

begin insertSEC. 2.end insert  

end insert

begin insertArticle 6 (commencing with Section 8700) of Chapter
203 of Part 4 of Division 5 of the end insert
begin insertWater Codeend insertbegin insert is repealed.end insert

21begin insert

begin insertSEC. 3.end insert  

end insert

begin insertArticle 6 (commencing with Section 8700) is added to
22Chapter 3 of Part 4 of Division 5 of the end insert
begin insertWater Codeend insertbegin insert, to read:end insert

begin insert

23 

24Article begin insert6.end insert  Enforcement of Unauthorized Activities and
25Encroachments
26

 

27

begin insert8700.end insert  

It is unlawful for any person or public agency to interfere
28with or obstruct the performance of the maintenance or operation
29of works or other plans adopted by the board within the jurisdiction
30of the board, including facilities of the State Plan of Flood Control,
31if the state or a political subdivision of the state has given
32assurances to the Secretary of the Army pursuant to Article 2
P5    1(commencing with Section 8615), that the state or a political
2subdivision of the state will maintain and operate works after
3completion in accordance with regulations prescribed by the
4Secretary of the Army, and any facilities or works constructed as
5part of an adopted plan of flood control or areas protected thereto.
6The board, executive officer, department, and local agencies that
7operate and maintain facilities and works on behalf of the board
8shall have the authority, as set forth in this article, to take
9administrative or civil enforcement actions to abate and remedy
10any interference or potential interference with these works. The
11unlawful interference proscribed by this article includes, but is
12not limited to, the construction of any encroachment or
13improvement without, or in violation of, the permits required by
14this part or the maintenance of a previously permitted
15encroachment that is deemed to interfere with these works pursuant
16to Section 8702.

17

begin insert8701.end insert  

(a) If the board, the executive officer, or department
18determines that any person or public agency has undertaken, is
19threatening to undertake, or maintains any encroachment,
20improvement, or activity in violation of this part, the board,
21executive officer, or department may issue a notice of violation to
22the person or public agency responsible for the encroachment or
23activity.

24(b) A local agency that operates and maintains facilities within
25the board’s jurisdiction may also issue a notice of violation
26pursuant to subdivision (a) if the board delegates the local agency
27that authority. This subdivision shall not require the local agency
28to accept that delegation of authority.

29(c) A notice of violation shall include all of the following:

30(1) A statement describing the activity, failure to act,
31improvement, or encroachment that constitutes a violation of this
32article.

33(2) A statement of whether the activity, improvement, or
34encroachment may be eligible for a permit from the board.

35(3) The corrective actions that must be taken within a specified
36time period.

37(4) Whether the person or public agency may correct the
38violation without obtaining prior approval from the board or
39executive officer, or whether prior approval from the board or
P6    1executive officer must be obtained prior to taking a corrective
2action.

3(5) A statement that the notice of violation shall be referred to
4the board and that the failure to take the requested actions within
5the time specified may subject the person or public agency to a
6cease and desist order and the imposition of further remedial and
7enforcement actions, including, but not limited to, correction of
8the violation by the board at the expense of the person or public
9agency plus fines or penalties.

10(6) The name, address, and telephone number of the state or
11local agency that may be contacted for further information.

12(d) The notice of violation shall be served in accordance with
13Section 8703 and a copy transmitted to the board executive officer
14within five business days of its issuance. The board or the executive
15officer may amend the notice of violation, and, once served in
16accordance with Section 8703, the amended notice of violation
17shall supersede any notice of violation previously issued for the
18 same violation.

19

begin insert8701.2.end insert  

(a) If the board or executive officer determines that
20any person or public agency has failed to adequately respond to
21a notice of violation, the board or executive officer may issue an
22order directing that the person or public agency to whom the notice
23of violation was issued cease and desist.

24(b) A cease and desist order shall include a copy of the notice
25of violation and shall require that the corrective actions described
26in the notice of violation be completed within a specified time
27period or the person or public agency shall be subject to an
28enforcement order pursuant to Section 8701.4. A cease and desist
29order shall be effective upon its issuance and shall be served
30immediately pursuant to Section 8703.

31(c) (1) A cease and desist order shall allow the person or
32agency subject to the order to request a hearing before the board
33within 30 days of being served with the order.

34(2) If a person or public agency subject to a cease and desist
35order fails to request a hearing within the time specified in
36paragraph (1), the right to a hearing shall be deemed waived and
37no hearing shall be required prior to issuance of an enforcement
38order pursuant to Section 8701.4.

39(d) If a person or public agency subject to a cease and desist
40order requests a hearing in accordance with paragraph (1) of
P7    1subdivision (c), the board shall hold a public hearing on the cease
2and desist order as follows:

3(1) Notice of the hearing shall be provided pursuant to Section
48703 and shall include the date, time, and location of the hearing
5and a statement that failure to appear at the hearing will constitute
6a waiver of the right to a hearing and will result in the entry of a
7default enforcement order.

8(2) The hearing shall be held pursuant to the provisions of this
9part and regulations adopted by the board.

10(3) At the conclusion of the hearing, the board may affirm,
11amend, or rescind the cease and desist order. If the board affirms
12or modifies the cease and desist order and the person or agency
13subject to the order fails to complete the corrective actions required
14in the cease and desist order, no further hearing shall be required
15prior to the issuance of a subsequent enforcement order by the
16board.

17(e) If a person or public agency subject to a cease and desist
18order fails to comply with the order and does not request a hearing
19in accordance with paragraph (1) of subdivision (c), the cease and
20desist order shall be recorded with the appropriate county
21recorder’s office by the board against the person or public
22agency’s property associated with the order.

23(f) When an enforcement action has been fully resolved,
24including the payment of any costs and penalties, the executive
25officer shall issue a certificate of abatement to the person or public
26agency against whose property the cease and desist order was
27recorded pursuant to subdivision (e). That person or public agency
28may, at the person or public agency’s expense, record the
29certificate with the appropriate county recorder’s office.

30

begin insert8701.4.end insert  

(a) If the board determines that any person or public
31agency has failed to correct a violation as required in a cease and
32desist order issued pursuant to Section 8701.2, the board may
33issue an enforcement order.

34(b) An enforcement order may do the following:

35(1) Order the removal and restoration of the encroachment,
36improvement, or activity causing a violation of this part. The board,
37its contractor, or its designee may conduct the removal and
38restoration, the costs of which shall be collected from the
39responsible person or public agency by whatever legal remedy is
40available, including, but not limited to, the placement of a lien on
P8    1the property owned by the person or public agency responsible
2for the violation pursuant to Section 8704.2.

3(2) Assess and require the payment of administrative penalties
4as set forth in Section 8704.

5(3) Order the initiation of a civil action by the board in the name
6of the state for mandamus, injunction, or other appropriate remedy
7authorized by law.

8(4) Order any other actions or conditions as the board may
9determine are necessary to avoid a potential adverse impact to
10public safety or to ensure compliance with this part.

11(c) The enforcement order shall be served immediately pursuant
12to Section 8703.

13(d) A person or public agency against which the board has
14issued an enforcement order may seek judicial review of the
15enforcement order pursuant to Section 8579. The enforcement
16order shall be deemed effective upon issuance, but no removal
17actions may be taken by the board until after the time for judicial
18review has passed.

19(e) This section shall not be construed to authorize the issuance
20of an enforcement order against a local public agency undertaking
21any lawful activity pursuant to a declaration of emergency by the
22governing body of the local public agency or the board of
23supervisors of the county in which the activity is being or may be
24undertaken.

25

begin insert8702.end insert  

(a) The board may order the removal or modification
26of an encroachment that was previously issued a permit by the
27board if the board makes one of the following findings:

28(1) The encroachment presents a threat to the structural integrity
29of the levee, channel, flood control work, or other facility of the
30State Plan of Flood Control.

31(2) The encroachment impairs the functional capability of the
32levee, channel, or flood control work to fulfill its particular
33intended role in the overall flood control plan.

34(3) The encroachment is not in conformance with an adopted
35plan of flood control, state law, board regulations, or, in the case
36of facilities of the State Plan of Flood Control where the board
37has given assurances to the United States, the standards and
38regulations of the Secretary of the Army.

39(b) Routine maintenance that includes the removal or
40modification of abandoned property, fences, gates, and vegetation
P9    1on the levee structure and other flood control structure shall not
2be subject to this section.

3

begin insert8703.end insert  

Notice and service required by this article shall be
4provided to the person or public agency believed to be responsible
5for the violation and the owner of the property on which the
6violation occurred or is threatened to occur by one of the following
7means:

8(a) Hand delivery.

9(b) Certified mail.

10(c) If the person or agency cannot be reached or reasonably
11notified pursuant to subdivision (a) or (b), by placing a copy of
12the notice or order on the encroachment or property.

13

begin insert8704.end insert  

(a) Any person or public agency that undertakes an
14activity, improvement, or encroachment that is in violation of this
15part or that is inconsistent with any permit or cease and desist
16order previously issued by the board or executive officer may be
17assessed a civil penalty in an amount not greater than fifteen
18thousand dollars ($15,000) per day for each day in which the
19violation occurs or persists.

20(b) Administrative penalties may be assessed by the board in
21the same manner as civil penalties described in subdivision (a)
22upon issuance of an enforcement order pursuant to Section 8701.4,
23but may not be less than five hundred dollars ($500) or exceed
24fifty thousand dollars ($50,000) for a single violation.

25(c) In determining the amount of liability pursuant to
26subdivisions (a) and (b), the following factors shall be considered:

27(1) The nature, circumstance, extent, and gravity of the violation.

28(2) Whether the violation was committed intentionally or
29knowingly.

30(3) Whether the violation is susceptible to restoration or other
31remedial measures.

32(4) Whether the function of the levee, channel, or other flood
33control work is affected by the violation.

34(5) The cost to the state of bringing the action.

35(6) With respect to the person or public agency responsible for
36the violation, any voluntary restoration or remedial measures
37undertaken, any prior history of violations, the degree of
38culpability, economic profits, if any, resulting from, or expected
39to result as a consequence of, the violation, and other matters the
40board deems relevant.

P10   1(d) Any penalties assessed shall be required to be paid within
230 calendar days.

3(e) No person or public agency shall be subject to both civil
4and administrative penalties for the same violation.

5(f) After the time for judicial review pursuant to Section 8579
6has passed, the board may apply to the clerk of the appropriate
7court in the county in which the administrative penalties were
8imposed for a judgment to collect the penalties assessed. The
9application, which shall include a certified copy of the board
10action, constitutes a sufficient showing to warrant issuance of the
11judgment. The clerk shall enter judgment immediately in conformity
12with the application. The judgment so entered has the same force
13and effect, and is subject to all the provisions of law relating to,
14a judgment in a civil action and may be enforced in the same
15manner as any other judgment of the court in which it is entered.

16(g) After the time for judicial review pursuant to Section 8579
17has passed, the board may also recover assessed penalties through
18a lien against the property of the person or agency responsible for
19the violation pursuant to Section 8704.2.

20(h) All funds generated by the imposition of penalties pursuant
21to this section shall be deposited into the Flood Risk Management
22Fund as set forth in Section 8705.

23(i) In addition to the penalties described in this section, any
24 individual who erects or maintains a violation that is found to be
25the proximate cause of a failure of a levee or other flood control
26facility shall be liable for additional damages at law, including
27any liability that may be incurred by the state.

28

begin insert8704.2.end insert  

(a) The board, after providing the opportunity for a
29hearing, shall have the authority to record a lien with the county
30clerk in the county of this state where the person or agency’s
31property responsible for the violation is located, to recover any
32and all of the following:

33(1) Costs incurred in abating, removing, and restoring a
34violation, including, but not limited to, costs incurred in seeking
35removal, abatement, and restoration pursuant to this part.

36(2) Costs incurred in the summary abatement of emergencies.

37(3) Civil or administrative penalties assessed pursuant to this
38article.

39(4) Attorney’s fees associated with actions to enforce this part.

P11   1(b) A lien recorded pursuant to this section shall have the same
2force, effect, and priority as a judgment lien.

3

begin insert8704.4.end insert  

The remedies provided by this article are not exclusive
4of, but shall be concurrent with and in addition to, any other
5remedy, penalty, or sanction that may exist by law, civil or
6criminal. The board may enforce compliance with the provisions
7of this article by mandamus, mandatory injunction, or by any other
8appropriate remedy authorized by law. The action or proceeding
9may be commenced and maintained by the board in the name of
10the state.

11

begin insert8705.end insert  

The Flood Risk Management Fund is hereby established
12in the State Treasury. All funds received from penalties pursuant
13to this article shall be paid into the fund. Upon appropriation by
14the Legislature, the moneys in the fund shall be expended by the
15board to carry out enforcement pursuant to this part, including
16the costs of the abatement and restoration of violations and recent
17litigation.

18

begin insert8706.end insert  

The board may maintain actions in the name of the state
19to compel by injunction the owner or owners of any bridge, trestle,
20wire line, viaduct, embankment, or other structure or obstruction
21that shall be intersected, traversed, or crossed by any bypass,
22drainage canal, channel, or overflow channel to construct or alter
23any structure in order to offer a minimum of obstruction to the
24free flow of water. In the case of existing works, the board may
25compel the removal or alteration of structures or obstructions that
26impede the free flow of water.

27

begin insert8706.5.end insert  

Any use of land, right of way, or easement within the
28jurisdiction of the board, whether for cultivation, planting of crops,
29trees or other vegetation, storage or disposal of material, or other
30encroachment upon, improvement of, or use of that land, right of
31way, or easement that does or may interfere with or obstruct
32operation or maintenance in violation of this part constitutes a
33public nuisance, and the board may commence and maintain a
34suit in the name of the people of the state for the prevention or
35abatement of that nuisance.

36

begin insert8707.end insert  

If the board or Attorney General prevails in a civil action
37to enforce this part, the board or Attorney General shall be
38awarded attorney’s fees and costs, including, but not limited to,
39any fees and costs incurred by its agents.

P12   1

begin insert8708.end insert  

(a) Nothing in this article shall be construed to prevent
2the department, the board, the executive officer, or a
3levee-maintaining agency from taking any action to prevent an
4imminent failure of a levee, to operate a flood control feature, or
5to take other emergency action necessary to protect the public
6welfare.

7(b) To the extent emergency action is required to abate an
8action, any aggrieved person may request a hearing before the
9board within 30 days after the action has been commenced.

10(c) After a public hearing, by request or by its own motion, the
11entity that has carried out the abatement functions pursuant to
12this section may seek reimbursement of its abatement costs and
13 may pursue any legal remedies available to recover its costs,
14including imposing a lien pursuant to Section 8704.2.

end insert
15begin insert

begin insertSEC. 4.end insert  

end insert

begin insertSection 8710.2 is added to the end insertbegin insertWater Codeend insertbegin insert, to read:end insert

begin insert
16

begin insert8710.2.end insert  

(a) No person or governmental agency may place an
17encroachment over, on, in, or under flood control facilities, works,
18or lands under the jurisdiction of the board, including, but not
19limited to, those lands required for a State Plan of Flood Control,
20without obtaining an encroachment permit from the board.

21(b) At the board’s discretion, any encroachment permit issued
22shall be subject to conditions necessary to ensure compliance with
23this part, including, but not limited to, the condition that the permit
24be recorded to the affected parcels with the county recorder’s
25office.

26(c) Levee maintenance and minor repairs by a local public
27agency that operates and maintains facilities and works on behalf
28of the board do not require a permit pursuant to this section.

29(d) Any person or public agency requesting approval of an
30encroachment permit shall, at the discretion of the board, do either
31of the following:

32(1) Submit a reasonable filing fee prescribed by the board
33pursuant to regulation that covers but does not exceed the costs
34of the board and the department to review and process the
35application for the type of encroachment permit.

36(2) Agree to pay the actual, reasonable costs of the board and
37the department to review and process the application.

end insert
begin insert38

begin insertSEC. 5.end insert  

Section 8710.3 is added to the Water Code, to read:

39

begin insert8710.3.end insert  

(a) No state or local governmental agency may
40commence construction of any flood facility or flood facility
P13   1improvement, including, but not limited to, conservation and
2recreation elements, that encroaches on a flood control facility,
3work, or land required for a State Plan of Flood Control under
4the jurisdiction of the board without obtaining a flood facility
5improvement permit from the board.

6(b) At the board’s discretion, any flood facility improvement
7permit issued shall be subject to conditions necessary to ensure
8compliance with this part, including, but not limited to, the
9condition that the permit be recorded to the affected parcels with
10the county recorder’s office.

11(c) Levee maintenance and minor repairs by a local public
12agency that operates and maintains facilities and works on behalf
13of the board do not require a permit pursuant to this section.

14(d) Any person or public agency requesting approval of a flood
15facility improvement permit shall, at the discretion of the board,
16do either of the following:

17(1) Submit a reasonable filing fee prescribed by the board
18pursuant to regulation that covers but does not exceed the costs
19of the board and the department to review and process the
20application for the type of flood facility improvement permit.

21(2) Agree to pay the actual, reasonable costs of the board and
22the department to review and process the application.

end insert
begin insert23

begin insertSEC. 6.end insert  

Section 8710.4 is added to the Water Code, to read:

24

begin insert8710.4.end insert  

(a) Prior to the implementation of filing fees or the
25adoption of a revised filing fee schedule by the board pursuant to
26Section 8710.2 or 8710.3, the board shall do all of the following:

27(1) Perform a study to consider whether, and for what services,
28filing fees should be charged by the board. In conjunction with the
29study, the board shall hold at least two hearings, one in the
30Sacramento River watershed and one in the San Joaquin River
31watershed. In conducting this study, the board shall consider any
32relevant factor, including the following:

33(A) The actual cost to the board of processing an application.

34(B) Whether charging the actual cost would encourage
35applicants to bypass the filing system and instead install illegal
36encroachments.

37(C) Whether the work to be performed is an improvement to the
38State Plan of Flood Control and inures to the benefit of the state.

39(D) Whether different filing fees might be appropriate for
40different classes of applications.

P14   1(E) Such other factors as may be appropriate.

2(2) Following the study, provide notice to the Senate Committee
3on Natural Resources and Water, the Assembly Committee on
4Water, Parks and Wildlife, and the Senate and Assembly
5Appropriations Committees.

6(b) Any moneys collected pursuant to the filing fees imposed by
7Section 8710.2 or 8710.3 shall be deposited in the Central Valley
8Flood Protection Board Permit Fund, which is hereby created in
9the State Treasury. Moneys in the fund shall be available upon
10appropriation by the Legislature for the purposes of Sections
118710.2 and 8710.3.

end insert
12begin insert

begin insertSEC. 7.end insert  

end insert

begin insertSection 8732 of the end insertbegin insertWater Codeend insertbegin insert is amended to read:end insert

13

8732.  

The board may hold a hearing or partial hearing before
14a committee of one or more members of the board,begin insert before a
15qualified neutral hearing officer designated by the board president,end insert

16 or before thebegin delete general managerend deletebegin insert executive officerend insert or chief engineer
17of the board, at any place within thebegin delete Stateend deletebegin insert stateend insert.

begin delete
18

SECTION 1.  

Section 8709.5 of the Water Code is amended to
19read:

20

8709.5.  

(a) Notwithstanding Section 8709 or 8709.4, if the
21board, or the executive officer if delegated authority by the board,
22determines that any person or public agency has undertaken, or is
23threatening to undertake, any activity that may encroach on levees,
24channels, or other flood control works under the jurisdiction of
25the board, the board or executive officer may issue an order
26directing that person or public agency to cease and desist. The
27order may also be issued to enforce any requirement of a permit
28or any requirement under this part that is subject to the jurisdiction
29of the board.

30(b) (1) The cease and desist order shall be issued only if the
31person or public agency has failed to respond in a satisfactory
32manner to any of the following:

33(A) An oral notice given in person or by telephone, followed
34by a written confirmation.

35(B) A written notice given by certified mail or hand delivered
36to the landowner or the person performing the activity.

37(C)  A written notice posted on the structure or facility that
38would be the subject of the order.

39(2) The notice shall include the following:

P15   1(A) A description of the activity that meets the criteria of
2subdivision (a) of Section 8709.4 or a statement that the described
3activity constitutes an encroachment that is in violation of this
4article because it is not authorized by a valid permit.

5(B) A statement that the described activity shall immediately
6cease or the alleged violator may receive a cease and desist order,
7the violation of which may subject the violator to fines or penalties.

8(C) The name, address, and telephone number of the staff
9member who is to be contacted for further information.

10(c) The cease and desist order may be subject to terms and
11conditions as the board or the executive officer may determine are
12necessary to avoid an unreasonable impact on public safety.

13(d) The cease and desist order shall be effective upon its
14issuance, and copies shall be served immediately by certified mail
15upon the person or agency subject to the order or by posting the
16order on the structure or facility that is the subject of the order.

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