BILL NUMBER: SB 753 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 1, 2013
INTRODUCED BY Senator Steinberg
(Coauthors: Assembly Members Dickinson and Pan)
FEBRUARY 22, 2013
An act to amend Section 8709.5 of 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, the Water Code, relating to flood
protection.
LEGISLATIVE COUNSEL'S DIGEST
SB 753, as amended, Steinberg. Central Valley Flood Protection
Board: encroachments. Board.
(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.
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.
(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.
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.
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.
(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.
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.
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.
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.
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.
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.
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.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 8579 is added to the
Water Code , to read:
8579. (a) Any aggrieved person shall have a right to judicial
review of any decision or action of the board, or the executive
officer acting pursuant to delegated authority, by filing a petition
for a writ of mandate in accordance with Section 1094.5 of the Code
of Civil Procedure, within 60 days after the decision or action has
become final.
(b) For purposes of this section, an "aggrieved person" means any
of the following:
(1) A person or public agency that, in person or through a
representative, appeared at a public hearing of the board in
connection with the decision or action appealed.
(2) A person or public agency that, by other appropriate means
prior to the decision, informed the board of the nature of the person
or public agency's concerns.
(3) A person or public agency that for good cause was unable to
appear, as described in paragraph (1), or inform the board, as
described in paragraph (2).
SEC. 2. Article 6 (commencing with Section 8700)
of Chapter 3 of Part 4 of Division 5 of the Water Code
is repealed.
SEC. 3. Article 6 (commencing with Section 8700)
is added to Chapter 3 of Part 4 of Division 5 of the Water
Code , to read:
Article 6. Enforcement of Unauthorized Activities and
Encroachments
8700. 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, including facilities of the State Plan of Flood Control,
if the state or a political subdivision of the state has given
assurances to the Secretary of the Army pursuant to Article 2
(commencing with Section 8615), that the state or a political
subdivision of the state will maintain and operate works after
completion in accordance with regulations prescribed by the Secretary
of the Army, and any facilities or works constructed as part of an
adopted plan of flood control or areas protected thereto. The board,
executive officer, department, and local agencies that operate and
maintain facilities and works on behalf of the board shall have the
authority, as set forth in this article, to take administrative or
civil enforcement actions to abate and remedy any interference or
potential interference with these works. The unlawful interference
proscribed by this article includes, but is not limited to, the
construction of any encroachment or improvement without, or in
violation of, the permits required by this part or the maintenance of
a previously permitted encroachment that is deemed to interfere with
these works pursuant to Section 8702.
8701. (a) If the board, the executive officer, or department
determines that any person or public agency has undertaken, is
threatening to undertake, or maintains any encroachment, improvement,
or activity in violation of this part, the board, executive officer,
or department may issue a notice of violation to the person or
public agency responsible for the encroachment or activity.
(b) A local agency that operates and maintains facilities within
the board's jurisdiction may also issue a notice of violation
pursuant to subdivision (a) if the board delegates the local agency
that authority. This subdivision shall not require the local agency
to accept that delegation of authority.
(c) A notice of violation shall include all of the following:
(1) A statement describing the activity, failure to act,
improvement, or encroachment that constitutes a violation of this
article.
(2) A statement of whether the activity, improvement, or
encroachment may be eligible for a permit from the board.
(3) The corrective actions that must be taken within a specified
time period.
(4) Whether the person or public agency may correct the violation
without obtaining prior approval from the board or executive officer,
or whether prior approval from the board or executive officer must
be obtained prior to taking a corrective action.
(5) A statement that the notice of violation shall be referred to
the board and that the failure to take the requested actions within
the time specified may subject the person or public agency to a cease
and desist order and the imposition of further remedial and
enforcement actions, including, but not limited to, correction of the
violation by the board at the expense of the person or public agency
plus fines or penalties.
(6) The name, address, and telephone number of the state or local
agency that may be contacted for further information.
(d) The notice of violation shall be served in accordance with
Section 8703 and a copy transmitted to the board executive officer
within five business days of its issuance. The board or the executive
officer may amend the notice of violation, and, once served in
accordance with Section 8703, the amended notice of violation shall
supersede any notice of violation previously issued for the same
violation.
8701.2. (a) If the board or executive officer determines that any
person or public agency has failed to adequately respond to a notice
of violation, the board or executive officer may issue an order
directing that the person or public agency to whom the notice of
violation was issued cease and desist.
(b) A cease and desist order shall include a copy of the notice of
violation and shall require that the corrective actions described in
the notice of violation be completed within a specified time period
or the person or public agency shall be subject to an enforcement
order pursuant to Section 8701.4. A cease and desist order shall be
effective upon its issuance and shall be served immediately pursuant
to Section 8703.
(c) (1) A cease and desist order shall allow the person or agency
subject to the order to request a hearing before the board within 30
days of being served with the order.
(2) If a person or public agency subject to a cease and desist
order fails to request a hearing within the time specified in
paragraph (1), the right to a hearing shall be deemed waived and no
hearing shall be required prior to issuance of an enforcement order
pursuant to Section 8701.4.
(d) If a person or public agency subject to a cease and desist
order requests a hearing in accordance with paragraph (1) of
subdivision (c), the board shall hold a public hearing on the cease
and desist order as follows:
(1) Notice of the hearing shall be provided pursuant to Section
8703 and shall include the date, time, and location of the hearing
and a statement that failure to appear at the hearing will constitute
a waiver of the right to a hearing and will result in the entry of a
default enforcement order.
(2) The hearing shall be held pursuant to the provisions of this
part and regulations adopted by the board.
(3) At the conclusion of the hearing, the board may affirm, amend,
or rescind the cease and desist order. If the board affirms or
modifies the cease and desist order and the person or agency subject
to the order fails to complete the corrective actions required in the
cease and desist order, no further hearing shall be required prior
to the issuance of a subsequent enforcement order by the board.
(e) If a person or public agency subject to a cease and desist
order fails to comply with the order and does not request a hearing
in accordance with paragraph (1) of subdivision (c), the cease and
desist order shall be recorded with the appropriate county recorder's
office by the board against the person or public agency's property
associated with the order.
(f) When an enforcement action has been fully resolved, including
the payment of any costs and penalties, the executive officer shall
issue a certificate of abatement to the person or public agency
against whose property the cease and desist order was recorded
pursuant to subdivision (e). That person or public agency may, at the
person or public agency's expense, record the certificate with the
appropriate county recorder's office.
8701.4. (a) If the board determines that any person or public
agency has failed to correct a violation as required in a cease and
desist order issued pursuant to Section 8701.2, the board may issue
an enforcement order.
(b) An enforcement order may do the following:
(1) Order the removal and restoration of the encroachment,
improvement, or activity causing a violation of this part. The board,
its contractor, or its designee may conduct the removal and
restoration, the costs of which shall be collected from the
responsible person or public agency by whatever legal remedy is
available, including, but not limited to, the placement of a lien on
the property owned by the person or public agency responsible for the
violation pursuant to Section 8704.2.
(2) Assess and require the payment of administrative penalties as
set forth in Section 8704.
(3) Order the initiation of a civil action by the board in the
name of the state for mandamus, injunction, or other appropriate
remedy authorized by law.
(4) Order any other actions or conditions as the board may
determine are necessary to avoid a potential adverse impact to public
safety or to ensure compliance with this part.
(c) The enforcement order shall be served immediately pursuant to
Section 8703.
(d) A person or public agency against which the board has issued
an enforcement order may seek judicial review of the enforcement
order pursuant to Section 8579. The enforcement order shall be deemed
effective upon issuance, but no removal actions may be taken by the
board until after the time for judicial review has passed.
(e) This section shall not be construed to authorize the issuance
of an enforcement order against a local public agency undertaking any
lawful activity pursuant to a declaration of emergency by the
governing body of the local public agency or the board of supervisors
of the county in which the activity is being or may be undertaken.
8702. (a) The board may order the removal or modification of an
encroachment that was previously issued a permit by the board if the
board makes one of the following findings:
(1) The encroachment presents a threat to the structural integrity
of the levee, channel, flood control work, or other facility of the
State Plan of Flood Control.
(2) The encroachment impairs the functional capability of the
levee, channel, or flood control work to fulfill its particular
intended role in the overall flood control plan.
(3) The encroachment is not in conformance with an adopted plan of
flood control, state law, board regulations, or, in the case of
facilities of the State Plan of Flood Control where the board has
given assurances to the United States, the standards and regulations
of the Secretary of the Army.
(b) Routine maintenance that includes the removal or modification
of abandoned property, fences, gates, and vegetation on the levee
structure and other flood control structure shall not be subject to
this section.
8703. Notice and service required by this article shall be
provided to the person or public agency believed to be responsible
for the violation and the owner of the property on which the
violation occurred or is threatened to occur by one of the following
means:
(a) Hand delivery.
(b) Certified mail.
(c) If the person or agency cannot be reached or reasonably
notified pursuant to subdivision (a) or (b), by placing a copy of the
notice or order on the encroachment or property.
8704. (a) Any person or public agency that undertakes an
activity, improvement, or encroachment that is in violation of this
part or that is inconsistent with any permit or cease and desist
order previously issued by the board or executive officer may be
assessed a civil penalty in an amount not greater than fifteen
thousand dollars ($15,000) per day for each day in which the
violation occurs or persists.
(b) Administrative penalties may be assessed by the board in the
same manner as civil penalties described in subdivision (a) upon
issuance of an enforcement order pursuant to Section 8701.4, but may
not be less than five hundred dollars ($500) or exceed fifty thousand
dollars ($50,000) for a single violation.
(c) In determining the amount of liability pursuant to
subdivisions (a) and (b), the following factors shall be considered:
(1) The nature, circumstance, extent, and gravity of the
violation.
(2) Whether the violation was committed intentionally or
knowingly.
(3) Whether the violation is susceptible to restoration or other
remedial measures.
(4) Whether the function of the levee, channel, or other flood
control work is affected by the violation.
(5) The cost to the state of bringing the action.
(6) With respect to the person or public agency responsible for
the violation, any voluntary restoration or remedial measures
undertaken, 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 other matters the
board deems relevant.
(d) Any penalties assessed shall be required to be paid within 30
calendar days.
(e) No person or public agency shall be subject to both civil and
administrative penalties for the same violation.
(f) After the time for judicial review pursuant to Section 8579
has passed, the board may apply to the clerk of the appropriate court
in the county in which the administrative penalties were imposed for
a judgment to collect the penalties assessed. The application, which
shall include a certified copy of the board action, constitutes a
sufficient showing to warrant issuance of the judgment. The clerk
shall enter judgment immediately in conformity with the application.
The judgment so entered has the same force and effect, and is subject
to all the provisions of law relating to, a judgment in a civil
action and may be enforced in the same manner as any other judgment
of the court in which it is entered.
(g) After the time for judicial review pursuant to Section 8579
has passed, the board may also recover assessed penalties through a
lien against the property of the person or agency responsible for the
violation pursuant to Section 8704.2.
(h) All funds generated by the imposition of penalties pursuant to
this section shall be deposited into the Flood Risk Management Fund
as set forth in Section 8705.
(i) In addition to the penalties described in this section, any
individual who erects or maintains a violation that is found to be
the proximate cause of a failure of a levee or other flood control
facility shall be liable for additional damages at law, including any
liability that may be incurred by the state.
8704.2. (a) The board, after providing the opportunity for a
hearing, shall have the authority to record a lien with the county
clerk in the county of this state where the person or agency's
property responsible for the violation is located, to recover any and
all of the following:
(1) Costs incurred in abating, removing, and restoring a
violation, including, but not limited to, costs incurred in seeking
removal, abatement, and restoration pursuant to this part.
(2) Costs incurred in the summary abatement of emergencies.
(3) Civil or administrative penalties assessed pursuant to this
article.
(4) Attorney's fees associated with actions to enforce this part.
(b) A lien recorded pursuant to this section shall have the same
force, effect, and priority as a judgment lien.
8704.4. The remedies provided by this article are not exclusive
of, but shall be concurrent with and in addition to, any other
remedy, penalty, or sanction that may exist by law, civil or
criminal. The board may enforce compliance with the provisions of
this article by mandamus, mandatory injunction, or by any other
appropriate remedy authorized by law. The action or proceeding may be
commenced and maintained by the board in the name of the state.
8705. The Flood Risk Management Fund is hereby established in the
State Treasury. All funds received from penalties pursuant to this
article shall be paid into the fund. Upon appropriation by the
Legislature, the moneys in the fund shall be expended by the board to
carry out enforcement pursuant to this part, including the costs of
the abatement and restoration of violations and recent litigation.
8706. The board may maintain actions in the name of the state to
compel by injunction the owner or owners of any bridge, trestle, wire
line, viaduct, embankment, or other structure or obstruction that
shall be intersected, traversed, or crossed by any bypass, drainage
canal, channel, or overflow channel to construct or alter any
structure in order to offer a minimum of obstruction to the free flow
of water. In the case of existing works, the board may compel the
removal or alteration of structures or obstructions that impede the
free flow of water.
8706.5. Any use of land, right of way, or easement within the
jurisdiction of the board, whether for cultivation, planting of
crops, trees or other vegetation, storage or disposal of material, or
other encroachment upon, improvement of, or use of that land, right
of way, or easement that does or may interfere with or obstruct
operation or maintenance in violation of this part constitutes a
public nuisance, and the board may commence and maintain a suit in
the name of the people of the state for the prevention or abatement
of that nuisance.
8707. If the board or Attorney General prevails in a civil action
to enforce this part, the board or Attorney General shall be awarded
attorney's fees and costs, including, but not limited to, any fees
and costs incurred by its agents.
8708. (a) Nothing in this article shall be construed to prevent
the department, the board, the executive officer, or a
levee-maintaining agency from taking any action to prevent an
imminent failure of a levee, to operate a flood control feature, or
to take other emergency action necessary to protect the public
welfare.
(b) To the extent emergency action is required to abate an action,
any aggrieved person may request a hearing before the board within
30 days after the action has been commenced.
(c) After a public hearing, by request or by its own motion, the
entity that has carried out the abatement functions pursuant to this
section may seek reimbursement of its abatement costs and may pursue
any legal remedies available to recover its costs, including imposing
a lien pursuant to Section 8704.2.
SEC. 4. Section 8710.2 is added to the
Water Code , to read:
8710.2. (a) No person or governmental agency may place an
encroachment over, on, in, or under flood control facilities, works,
or lands under the jurisdiction of the board, including, but not
limited to, those lands required for a State Plan of Flood Control,
without obtaining an encroachment permit from the board.
(b) At the board's discretion, any encroachment permit issued
shall be subject to conditions necessary to ensure compliance with
this part, including, but not limited to, the condition that the
permit be recorded to the affected parcels with the county recorder's
office.
(c) Levee maintenance and minor repairs by a local public agency
that operates and maintains facilities and works on behalf of the
board do not require a permit pursuant to this section.
(d) Any person or public agency requesting approval of an
encroachment permit shall, at the discretion of the board, do either
of the following:
(1) 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 to review and process the application
for the type of encroachment permit.
(2) Agree to pay the actual, reasonable costs of the board and the
department to review and process the application.
SEC. 5. Section 8710.3 is added to the Water Code, to
read:
8710.3. (a) No state or local governmental agency may commence
construction of any flood facility or flood facility improvement,
including, but not limited to, conservation and recreation elements,
that encroaches on a flood control facility, work, or land required
for a State Plan of Flood Control under the jurisdiction of the board
without obtaining a flood facility improvement permit from the
board.
(b) At the board's discretion, any flood facility improvement
permit issued shall be subject to conditions necessary to ensure
compliance with this part, including, but not limited to, the
condition that the permit be recorded to the affected parcels with
the county recorder's office.
(c) Levee maintenance and minor repairs by a local public agency
that operates and maintains facilities and works on behalf of the
board do not require a permit pursuant to this section.
(d) Any person or public agency requesting approval of a flood
facility improvement permit shall, at the discretion of the board, do
either of the following:
(1) 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 to review and process the application
for the type of flood facility improvement permit.
(2) Agree to pay the actual, reasonable costs of the board and the
department to review and process the application.
SEC. 6. Section 8710.4 is added to the Water Code, to
read:
8710.4. (a) Prior to the implementation of filing fees or the
adoption of a revised filing fee schedule by the board pursuant to
Section 8710.2 or 8710.3, the board shall do all of the following:
(1) Perform a study to consider whether, and for what services,
filing fees should be charged by the board. In conjunction with the
study, the board shall hold at least two hearings, one in the
Sacramento River watershed and one in the San Joaquin River
watershed. In conducting this study, the board shall consider any
relevant factor, including the following:
(A) The actual cost to the board of processing an application.
(B) Whether charging the actual cost would encourage applicants to
bypass the filing system and instead install illegal encroachments.
(C) Whether the work to be performed is an improvement to the
State Plan of Flood Control and inures to the benefit of the state.
(D) Whether different filing fees might be appropriate for
different classes of applications.
(E) Such other factors as may be appropriate.
(2) Following the study, provide notice to the Senate Committee on
Natural Resources and Water, the Assembly Committee on Water, Parks
and Wildlife, and the Senate and Assembly Appropriations Committees.
(b) Any moneys collected pursuant to the filing fees imposed by
Section 8710.2 or 8710.3 shall be deposited in the Central Valley
Flood Protection Board Permit Fund, which is hereby created in the
State Treasury. Moneys in the fund shall be available upon
appropriation by the Legislature for the purposes of Sections 8710.2
and 8710.3.
SEC. 7. Section 8732 of the Water Code
is amended to read:
8732. The board may hold a hearing or partial hearing before a
committee of one or more members of the board, before a
qualified neutral hearing officer designated by the board president,
or before the general manager executive
officer or chief engineer of the board, at any place within
the State state .
SECTION 1. Section 8709.5 of the Water Code is
amended to read:
8709.5. (a) Notwithstanding Section 8709 or 8709.4, if the board,
or the executive officer if delegated authority by the board,
determines that any person or public agency has undertaken, or is
threatening to undertake, any activity that may encroach on levees,
channels, or other flood control works under the jurisdiction of the
board, the board or executive officer may issue an order directing
that person or public agency to cease and desist. The order may also
be issued to enforce any requirement of a permit or any requirement
under this part that is subject to the jurisdiction of the board.
(b) (1) The cease and desist order shall be issued only if the
person or public agency has failed to respond in a satisfactory
manner to any of the following:
(A) An oral notice given in person or by telephone, followed by a
written confirmation.
(B) A written notice given by certified mail or hand delivered to
the landowner or the person performing the activity.
(C) A written notice posted on the structure or facility that
would be the subject of the order.
(2) The notice shall include the following:
(A) A description of the activity that meets the criteria of
subdivision (a) of Section 8709.4 or a statement that the described
activity constitutes an encroachment that is in violation of this
article because it is not authorized by a valid permit.
(B) A statement that the described activity shall immediately
cease or the alleged violator may receive a cease and desist order,
the violation of which may subject the violator to fines or
penalties.
(C) The name, address, and telephone number of the staff member
who is to be contacted for further information.
(c) The cease and desist order may be subject to terms and
conditions as the board or the executive officer may determine are
necessary to avoid an unreasonable impact on public safety.
(d) The cease and desist order shall be effective upon its
issuance, and copies shall be served immediately by certified mail
upon the person or agency subject to the order or by posting the
order on the structure or facility that is the subject of the order.