Amended in Senate April 18, 2013

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 Section 8732 of, to addbegin delete Sections 8579, 8710.2, 8710.3, and 8710.4end deletebegin insert Section 8579end insert 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.

(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.

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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 delete
begin delete

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 delete
begin delete

(3) Existing

end delete

begin insertExistingend insert 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.begin insert 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

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 executivebegin insert officerend insert 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.

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

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

P3    1

SECTION 1.  

Section 8579 is added to the Water Code, to read:

2

8579.  

(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
P4    1Code of Civil Procedure, within 60 days after the decision or action
2has become final.

3(b) For purposes of this section, an “aggrieved person” means
4any of the following:

5(1) A person or public agency that, in person or through a
6representative, appeared at a public hearing of the board in
7connection with the decision or action appealed.

8(2) A person or public agency that, by other appropriate means
9prior to the decision, informed the board of the nature of the person
10or public agency’s concerns.

11(3) A person or public agency that for good cause was unable
12to appear, as described in paragraph (1), or inform the board, as
13described in paragraph (2).

14

SEC. 2.  

Article 6 (commencing with Section 8700) of Chapter
153 of Part 4 of Division 5 of the Water Code is repealed.

16

SEC. 3.  

Article 6 (commencing with Section 8700) is added
17to Chapter 3 of Part 4 of Division 5 of the Water Code, to read:

18 

19Article 6.  Enforcement of Unauthorized Activities and
20Encroachments
21

 

22

8700.  

It is unlawful for any person or public agency to interfere
23with or obstruct the performance of the maintenance or operation
24of works or other plans adopted by the board within the jurisdiction
25of the board, including facilities of the State Plan of Flood Control,
26if the state or a political subdivision of the state has given
27assurances to the Secretary of the Army pursuant to Article 2
28(commencing with Section 8615), that the state or a political
29subdivision of the state will maintain and operate works after
30completion in accordance with regulations prescribed by the
31Secretary of the Army, and any facilities or works constructed as
32part of an adopted plan of flood control or areas protected thereto.
33The board, executive officer, department, and local agencies that
34operate and maintain facilities and works on behalf of the board
35shall have the authority, as set forth in this article, to take
36administrative or civil enforcement actions to abate and remedy
37any interference or potential interference with these works. The
38unlawful interference proscribed by this article includes, but is not
39limited to, the construction of any encroachment or improvement
40without, or in violation of, the permits required by this part or the
P5    1maintenance of a previously permitted encroachment that is deemed
2to interfere with these works pursuant to Section 8702.

3

8701.  

(a) If the board, the executive officer, or department
4determines that any person or public agency has undertaken, is
5threatening to undertake, or maintains any encroachment,
6improvement, or activity in violation of this part, the board,
7executive officer, or department may issue a notice of violation to
8the person or public agency responsible for the encroachment or
9activity.

10(b) A local agency that operates and maintains facilities within
11the board’s jurisdiction may also issue a notice of violation
12pursuant to subdivision (a) if the board delegates the local agency
13that authority. This subdivision shall not require the local agency
14to accept that delegation of authority.

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

16(1) A statement describing the activity, failure to act,
17improvement, or encroachment that constitutes a violation of this
18article.

19(2) A statement of whether the activity, improvement, or
20encroachment may be eligible for a permit from the board.

21(3) The corrective actions that must be taken within a specified
22time period.

23(4) Whether the person or public agency may correct the
24violation without obtaining prior approval from the board or
25executive officer, or whether prior approval from the board or
26executive officer must be obtained prior to taking a corrective
27action.

28(5) A statement that the notice of violation shall be referred to
29the board and that the failure to take the requested actions within
30the time specified may subject the person or public agency to a
31cease and desist order and the imposition of further remedial and
32enforcement actions, including, but not limited to, correction of
33the violation by the board at the expense of the person or public
34agency plus fines or penalties.

35(6) The name, address, and telephone number of the state or
36local agency that may be contacted for further information.

37(d) The notice of violation shall be served in accordance with
38Section 8703 and a copy transmitted to thebegin delete boardend delete executive officer
39within five business days of its issuance. The board or the executive
40officer may amend the notice of violation, and, once served in
P6    1accordance with Section 8703, the amended notice of violation
2shall supersede any notice of violation previously issued for the
3 same violation.

4

8701.2.  

(a) If the board or executive officer determines that
5any person or public agency has failed to adequately respond to a
6notice of violation, the board or executive officer may issue an
7order directing that the person or public agency to whom the notice
8of violation was issued cease and desist.

9(b) A cease and desist order shall include a copy of the notice
10of violation and shall require that the corrective actions described
11in the notice of violation be completed within a specified time
12period or the person or public agency shall be subject to an
13enforcement order pursuant to Section 8701.4. A cease and desist
14order shall be effective upon its issuance and shall be served
15immediately pursuant to Section 8703.

16(c) (1) A cease and desist order shall allow the person or agency
17subject to the order to request a hearing before the board within
1830 days of being served with the order.

19(2) If a person or public agency subject to a cease and desist
20order fails to request a hearing within the time specified in
21paragraph (1), the right to a hearing shall be deemed waived and
22no hearing shall be required prior to issuance of an enforcement
23order pursuant to Section 8701.4.

24(d) If a person or public agency subject to a cease and desist
25order requests a hearing in accordance with paragraph (1) of
26subdivision (c), the board shall hold a public hearing on the cease
27and desist order as follows:

28(1) Notice of the hearing shall be provided pursuant to Section
298703 and shall include the date, time, and location of the hearing
30and a statement that failure to appear at the hearing will constitute
31a waiver of the right to a hearing and will result in the entry of a
32default enforcement order.

33(2) The hearing shall be held pursuant to the provisions of this
34part and regulations adopted by the board.

35(3) At the conclusion of the hearing, the board may affirm,
36amend, or rescind the cease and desist order. If the board affirms
37or modifies the cease and desist order and the person or agency
38subject to the order fails to complete the corrective actions required
39in the cease and desist order, no further hearing shall be required
P7    1prior to the issuance of a subsequent enforcement order by the
2board.

3(e) If a person or public agency subject to a cease and desist
4order fails to comply with the order and does not request a hearing
5in accordance with paragraph (1) of subdivision (c), the cease and
6desist order shall be recorded with the appropriate county recorder’s
7office by the board against the person or public agency’s property
8associated with the order.

9(f) When an enforcement action has been fully resolved,
10including the payment of any costs and penalties, the executive
11officer shall issue a certificate of abatement to the person or public
12agency against whose property the cease and desist order was
13recorded pursuant to subdivision (e). That person or public agency
14may, at the person or public agency’s expense, record the certificate
15with the appropriate county recorder’s office.

16

8701.4.  

(a) If the board determines that any person or public
17agency has failed to correct a violation as required in a cease and
18desist order issued pursuant to Section 8701.2, the board may issue
19an enforcement order.

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

21(1) Order the removal and restoration of the encroachment,
22improvement, or activity causing a violation of this part. The board,
23its contractor, or its designee may conduct the removal and
24restoration, the costs of which shall be collected from the
25responsible person or public agency by whatever legal remedy is
26available, including, but not limited to, the placement of a lien on
27the property owned by the person or public agency responsible for
28the violation pursuant to Section 8704.2.

29(2) Assess and require the payment of administrative penalties
30as set forth in Section 8704.

31(3) Order the initiation of a civil action by the board in the name
32of the state for mandamus, injunction, or other appropriate remedy
33authorized by law.

34(4) Order any other actions or conditions as the board may
35determine are necessary to avoid a potential adverse impact to
36public safety or to ensure compliance with this part.

37(c) The enforcement order shall be served immediately pursuant
38to Section 8703.

39(d) A person or public agency against which the board has issued
40an enforcement order may seek judicial review of the enforcement
P8    1order pursuant to Section 8579. The enforcement order shall be
2deemed effective upon issuance, but no removal actions may be
3taken by the board until after the time for judicial review has
4passed.

5(e) This section shall not be construed to authorize the issuance
6of an enforcement order against a local public agency undertaking
7any lawful activity pursuant to a declaration of emergency by the
8governing body of the local public agency or the board of
9supervisors of the county in which the activity is being or may be
10undertaken.

11

8702.  

(a) The board may order the removal or modification
12of an encroachment that was previously issued a permit by the
13board if the board makes one of the following findings:

14(1) The encroachment presents a threat to the structural integrity
15of the levee, channel, flood control work, or other facility of the
16State Plan of Flood Control.

17(2) The encroachment impairs the functional capability of the
18levee, channel, or flood control work to fulfill its particular
19intended role in the overall flood control plan.

20(3) The encroachment is not in conformance with an adopted
21plan of flood control, state law, board regulations, or, in the case
22of facilities of the State Plan of Flood Control where the board has
23given assurances to the United States, the standards and regulations
24of the Secretary of the Army.

25(b) Routine maintenance that includes the removal or
26modification of abandoned property, fences, gates, and vegetation
27on the levee structure and other flood control structure shall not
28be subject to this section.

29

8703.  

Notice and service required by this article shall be
30provided to the person or public agency believed to be responsible
31for the violation and the owner of the property on which the
32violation occurred or is threatened to occur by one of the following
33means:

34(a) Hand delivery.

35(b) Certified mail.

36(c) If the person or agency cannot be reached or reasonably
37notified pursuant to subdivision (a) or (b), by placing a copy of
38the notice or order on the encroachment or property.

39

8704.  

(a) Any person or public agency that undertakes an
40activity, improvement, or encroachment that is in violation of this
P9    1part or that is inconsistent with any permit or cease and desist order
2previously issued by the board or executive officer may be assessed
3a civil penalty in an amount not greater than fifteen thousand
4dollars ($15,000) per day for each day in which the violation occurs
5or persists.

6(b) Administrative penalties may be assessed by the board in
7the same manner as civil penalties described in subdivision (a)
8upon issuance of an enforcement order pursuant to Section 8701.4,
9but may not be less than five hundred dollars ($500) or exceed
10fifty thousand dollars ($50,000) for a single violation.

11(c) In determining the amount of liability pursuant to
12subdivisions (a) and (b), the following factors shall be considered:

13(1) The nature, circumstance, extent, and gravity of the violation.

14(2) Whether the violation was committed intentionally or
15knowingly.

16(3) Whether the violation is susceptible to restoration or other
17remedial measures.

18(4) Whether the function of the levee, channel, or other flood
19control work is affected by the violation.

20(5) The cost to the state of bringing the action.

21(6) With respect to the person or public agency responsible for
22the violation, any voluntary restoration or remedial measures
23undertaken, any prior history of violations, the degree of
24culpability, economic profits, if any, resulting from, or expected
25to result as a consequence of, the violation, and other matters the
26board deems relevant.

27(d) Any penalties assessed shall be required to be paid within
2830 calendar days.

29(e) No person or public agency shall be subject to both civil and
30administrative penalties for the same violation.

31(f) After the time for judicial review pursuant to Section 8579
32has passed, the board may apply to the clerk of the appropriate
33court in the county in which the administrative penalties were
34imposed for a judgment to collect the penalties assessed. The
35application, which shall include a certified copy of the board action,
36constitutes a sufficient showing to warrant issuance of the
37judgment. The clerk shall enter judgment immediately in
38conformity with the application. The judgment so entered has the
39same force and effect, and is subject to all the provisions of law
40relating to, a judgment in a civil action and may be enforced in the
P10   1same manner as any other judgment of the court in which it is
2entered.

3(g) After the time for judicial review pursuant to Section 8579
4has passed, the board may also recover assessed penalties through
5a lien against the property of the person or agency responsible for
6the violation pursuant to Section 8704.2.

7(h) All funds generated by the imposition of penalties pursuant
8to this section shall be deposited into the Flood Risk Management
9Fund as set forth in Section 8705.

10(i) In addition to the penalties described in this section, any
11 individual who erects or maintains a violation that is found to be
12the proximate cause of a failure of a levee or other flood control
13facility shall be liable for additional damages at law, including any
14liability that may be incurred by the state.

15

8704.2.  

(a) The board, after providing the opportunity for a
16hearing, shall have the authority to record a lien with the county
17clerk in the county of this state where the person or agency’s
18property responsible for the violation is located, to recover any
19and all of the following:

20(1) Costs incurred in abating, removing, and restoring a
21violation, including, but not limited to, costs incurred in seeking
22removal, abatement, and restoration pursuant to this part.

23(2) Costs incurred in the summary abatement of emergencies.

24(3) Civil or administrative penalties assessed pursuant to this
25article.

26(4) Attorney’s fees associated with actions to enforce this part.

27(b) A lien recorded pursuant to this section shall have the same
28force, effect, and priority as a judgment lien.

29

8704.4.  

The remedies provided by this article are not exclusive
30of, but shall be concurrent with and in addition to, any other
31remedy, penalty, or sanction that may exist by law, civil or
32criminal. The board may enforce compliance with the provisions
33of this article by mandamus, mandatory injunction, or by any other
34appropriate remedy authorized by law. The action or proceeding
35may be commenced and maintained by the board in the name of
36the state.

37

8705.  

The Flood Risk Management Fund is hereby established
38in the State Treasury. All funds received from penalties pursuant
39to this article shall be paid into the fund. Upon appropriation by
40the Legislature, the moneys in the fund shall be expended by the
P11   1board to carry out enforcement pursuant to this part, including the
2costs of the abatement and restoration of violations and recent
3litigation.

4

8706.  

The board may maintain actions in the name of the state
5to compel by injunction the owner or owners of any bridge, trestle,
6wire line, viaduct, embankment, or other structure or obstruction
7that shall be intersected, traversed, or crossed by any bypass,
8drainage canal, channel, or overflow channel to construct or alter
9any structure in order to offer a minimum of obstruction to the free
10flow of water. In the case of existing works, the board may compel
11the removal or alteration of structures or obstructions that impede
12the free flow of water.

13

8706.5.  

Any use of land, right of way, or easement within the
14jurisdiction of the board, whether for cultivation, planting of crops,
15trees or other vegetation, storage or disposal of material, or other
16encroachment upon, improvement of, or use of that land, right of
17way, or easement that does or may interfere with or obstruct
18operation or maintenance in violation of this part constitutes a
19public nuisance, and the board may commence and maintain a suit
20in the name of the people of the state for the prevention or
21abatement of that nuisance.

22

8707.  

If the board or Attorney General prevails in a civil action
23to enforce this part, the board or Attorney General shall be awarded
24attorney’s fees and costs, including, but not limited to, any fees
25and costs incurred by its agents.

26

8708.  

(a) Nothing in this article shall be construed to prevent
27the department, the board, the executive officer, or a
28levee-maintaining agency from taking any action to prevent an
29imminent failure of a levee, to operate a flood control feature, or
30to take other emergency action necessary to protect the public
31welfare.

32(b) To the extent emergency action is required to abate an action,
33any aggrieved person may request a hearing before the board within
3430 days after the action has been commenced.

35(c) After a public hearing, by request or by its own motion, the
36entity that has carried out the abatement functions pursuant to this
37section may seek reimbursement of its abatement costs and may
38pursue any legal remedies available to recover its costs, including
39imposing a lien pursuant to Section 8704.2.

begin delete
40

SEC. 4.  

Section 8710.2 is added to the Water Code, to read:

P12   1

8710.2.  

(a) No person or governmental agency may place an
2encroachment over, on, in, or under flood control facilities, works,
3or lands under the jurisdiction of the board, including, but not
4limited to, those lands required for a State Plan of Flood Control,
5without obtaining an encroachment permit from the board.

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

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 an
15encroachment permit shall, at the discretion of the board, do either
16of the following:

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

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

23

SEC. 5.  

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

24

8710.3.  

(a) No state or local governmental agency may
25commence construction of any flood facility or flood facility
26improvement, including, but not limited to, conservation and
27recreation elements, that encroaches on a flood control facility,
28work, or land required for a State Plan of Flood Control under the
29jurisdiction of the board without obtaining a flood facility
30improvement permit from the board.

31(b) At the board’s discretion, any flood facility improvement
32permit issued shall be subject to conditions necessary to ensure
33compliance with this part, including, but not limited to, the
34condition that the permit be recorded to the affected parcels with
35the county recorder’s office.

36(c) Levee maintenance and minor repairs by a local public
37agency that operates and maintains facilities and works on behalf
38of the board do not require a permit pursuant to this section.

P13   1(d) Any person or public agency requesting approval of a flood
2facility improvement permit shall, at the discretion of the board,
3do either of the following:

4(1) Submit a reasonable filing fee prescribed by the board
5pursuant to regulation that covers but does not exceed the costs of
6the board and the department to review and process the application
7for the type of flood facility improvement permit.

8(2) Agree to pay the actual, reasonable costs of the board and
9the department to review and process the application.

10

SEC. 6.  

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

11

8710.4.  

(a) Prior to the implementation of filing fees or the
12adoption of a revised filing fee schedule by the board pursuant to
13Section 8710.2 or 8710.3, the board shall do all of the following:

14(1) Perform a study to consider whether, and for what services,
15filing fees should be charged by the board. In conjunction with the
16study, the board shall hold at least two hearings, one in the
17Sacramento River watershed and one in the San Joaquin River
18watershed. In conducting this study, the board shall consider any
19relevant factor, including the following:

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

21(B) Whether charging the actual cost would encourage applicants
22to bypass the filing system and instead install illegal
23encroachments.

24(C) Whether the work to be performed is an improvement to
25the State Plan of Flood Control and inures to the benefit of the
26state.

27(D) Whether different filing fees might be appropriate for
28different classes of applications.

29(E) Such other factors as may be appropriate.

30(2) Following the study, provide notice to the Senate Committee
31on Natural Resources and Water, the Assembly Committee on
32Water, Parks and Wildlife, and the Senate and Assembly
33Appropriations Committees.

34(b) Any moneys collected pursuant to the filing fees imposed
35by Section 8710.2 or 8710.3 shall be deposited in the Central
36Valley Flood Protection Board Permit Fund, which is hereby
37created in the State Treasury. Moneys in the fund shall be available
38upon appropriation by the Legislature for the purposes of Sections
398710.2 and 8710.3.

end delete
P14   1

begin deleteSEC. 7.end delete
2begin insertSEC. 4.end insert  

Section 8732 of the Water Code is amended to read:

3

8732.  

The board may hold a hearing or partial hearing before
4a committee of one or more members of the board, before a
5qualified neutral hearing officer designated by the board president,
6or before the executive officer or chief engineer of the board, at
7any place within the state.



O

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