Amended in Senate April 29, 2013

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 add Section 8579 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.

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 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 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 officer 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.begin insert The bill would require the board to adopt emergency regulations necessary to implement these provisions.end insert

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
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).

19

SEC. 2.  

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203 of Part 4 of Division 5 of the Water Code is repealed.

21

SEC. 3.  

Article 6 (commencing with Section 8700) is added
22to Chapter 3 of Part 4 of Division 5 of the Water Code, to read:

23 

24Article 6.  Enforcement of Unauthorized Activities and
25Encroachments
26

 

27

8700.  

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
P4    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 not
12limited to, the construction of any encroachment or improvement
13without, or in violation of, the permits required by this part or the
14maintenance of a previously permitted encroachment that is deemed
15to interfere with these works pursuant to Section 8702.

16

8701.  

(a) If the board, the executive officer, or department
17determines that any person or public agency has undertaken, is
18threatening to undertake, or maintains any encroachment,
19improvement, or activity in violation of this part, the board,
20executive officer, or department may issue a notice of violation to
21the person or public agency responsible for the encroachment or
22activity.

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

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

29(1) A statement describing the activity, failure to act,
30improvement, or encroachment that constitutes a violation of this
31article.

32(2) A statement of whether the activity, improvement, or
33encroachment may be eligible for a permit from the board.

34(3) The corrective actions thatbegin delete mustend deletebegin insert shallend insert be taken within a
35specified time period.

36(4) Whether the person or public agency may correct the
37violation without obtaining prior approval from the board or
38executive officer, or whether prior approval from the board or
39executive officer must be obtained prior to taking a corrective
40action.

P5    1(5) A statement that the notice of violation shall be referred to
2the board and that the failure to take the requested actions within
3the time specified may subject the person or public agency to a
4cease and desist order and the imposition of further remedial and
5enforcement actions, including, but not limited to, correction of
6the violation by the board at the expense of the person or public
7agency plus fines or penalties.

8(6) The name, address, and telephone number of the state or
9local agency that may be contacted for further information.

10(d) The notice of violation shall be served in accordance with
11Section 8703 and a copy transmitted to the executive officer within
12five business days of its issuance. The board or the executive
13officer may amend the notice of violation, and, once served in
14accordance with Section 8703, the amended notice of violation
15shall supersede any notice of violation previously issued for the
16 same violation.

17

8701.2.  

(a) If the board or executive officer determines that
18any person or public agency has failed to adequately respond to a
19notice of violation, the board or executive officer may issue an
20order directing that the person or public agency to whom the notice
21of violation was issued cease and desist.

22(b) A cease and desist order shall include a copy of the notice
23of violation and shall require that the corrective actions described
24in the notice of violation be completed within a specified time
25period or the person or public agency shall be subject to an
26enforcement order pursuant to Section 8701.4. A cease and desist
27order shall be effective upon its issuance and shall be served
28immediately pursuant to Section 8703.

29(c) (1) A cease and desist order shall allow the person or agency
30subject to the order to request a hearing before the board within
3130 days of being served with the order.

32(2) If a person or public agency subject to a cease and desist
33order fails to request a hearing within the time specified in
34paragraph (1), the right to a hearing shall be deemed waived and
35no hearing shall be required prior to issuance of an enforcement
36order pursuant to Section 8701.4.

37(d) If a person or public agency subject to a cease and desist
38order requests a hearing in accordance with paragraph (1) of
39subdivision (c), the board shall hold a public hearing on the cease
40and desist order as follows:

P6    1(1) Notice of the hearing shall be provided pursuant to Section
28703 and shall include the date, time, and location of the hearing
3and a statement that failure to appear at the hearing will constitute
4a waiver of the right to a hearing and will result in the entry of a
5default enforcement order.

6(2) The hearing shall be held pursuant to the provisions of this
7part and regulations adopted by the board.

8(3) At the conclusion of the hearing, the board may affirm,
9amend, or rescind the cease and desist order. If the board affirms
10or modifies the cease and desist order and the person or agency
11subject to the order fails to complete the corrective actions required
12in the cease and desist order, no further hearing shall be required
13prior to the issuance of a subsequent enforcement order by the
14board.

15(e) If a person or public agency subject to a cease and desist
16order fails to comply with the order and does not request a hearing
17in accordance with paragraph (1) of subdivision (c), the cease and
18desist order shall be recorded with the appropriate county recorder’s
19office by the board against the person or public agency’s property
20associated with the order.

21(f) When an enforcement action has been fully resolved,
22including the payment of any costs and penalties, the executive
23officer shall issue a certificate of abatement to the person or public
24agency against whose property the cease and desist order was
25recorded pursuant to subdivision (e). That person or public agency
26may, at the person or public agency’s expense, record the certificate
27with the appropriate county recorder’s office.

28

8701.4.  

(a) If the board determines that any person or public
29agency has failed to correct a violation as required in a cease and
30desist order issued pursuant to Section 8701.2, the board may issue
31an enforcement order.

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

33(1) Order the removal and restoration of the encroachment,
34improvement, or activity causing a violation of this part. The board,
35its contractor, or its designee may conduct the removal and
36restoration, the costs of which shall be collected from the
37responsible person or public agency by whatever legal remedy is
38available, including, but not limited to, the placement of a lien on
39the property owned by the person or public agency responsible for
40the violation pursuant to Section 8704.2.

P7    1(2) Assess and require the payment of administrative penalties
2as set forth in Section 8704.

3(3) Order the initiation of a civil action by the board in the name
4of the state for mandamus, injunction, or other appropriate remedy
5authorized by law.

6(4) Order any other actions or conditions as the board may
7determine are necessary to avoid a potential adverse impact to
8public safety or to ensure compliance with this part.

9(c) The enforcement order shall be served immediately pursuant
10to Section 8703.

11(d) A person or public agency against which the board has issued
12an enforcement order may seek judicial review of the enforcement
13order pursuant to Section 8579. The enforcement order shall be
14deemed effective upon issuance, butbegin delete noend deletebegin insert aend insert removalbegin delete actions mayend delete
15begin insert action shall notend insert be taken by the board until after the time for
16judicial review has passed.

17(e) This section shall not be construed to authorize the issuance
18of an enforcement order against a local public agency undertaking
19any lawful activity pursuant to a declaration of emergency by the
20governing body of the local public agency or the board of
21supervisors of the county in which the activity is being or may be
22undertaken.

23

8702.  

(a) The board may order the removal or modification
24of an encroachment that was previously issued a permit by the
25board if the board makes one of the following findings:

26(1) The encroachment presents a threat to the structural integrity
27of the levee, channel, flood control work, or other facility of the
28State Plan of Flood Control.

29(2) The encroachment impairs the functional capability of the
30levee, channel, or flood control work to fulfill its particular
31intended role in the overall flood control plan.

32(3) The encroachment is not in conformance with an adopted
33plan of flood control, state law, board regulations, or, in the case
34of facilities of the State Plan of Flood Control where the board has
35given assurances to the United States, the standards and regulations
36of the Secretary of the Army.

37(b) Routine maintenance that includes the removal or
38modification of abandoned property, fences, gates, and vegetation
39on the levee structure and other flood control structure shall not
40be subject to this section.

P8    1

8703.  

Notice and service required by this article shall be
2provided to the person or public agency believed to be responsible
3for the violation and the owner of the property on which the
4violation occurred or is threatened to occur by one of the following
5means:

6(a) Hand delivery.

7(b) Certified mail.

8(c) If the person or agency cannot be reached or reasonably
9notified pursuant to subdivision (a) or (b), by placing a copy of
10the notice or order on the encroachment or property.

11

8704.  

(a) Any person or public agency that undertakes an
12activity, improvement, or encroachment that is in violation of this
13part or that is inconsistent with any permit or cease and desist order
14previously issued by the board or executive officer may be assessed
15a civil penalty in an amount not greater than fifteen thousand
16dollars ($15,000) per day for each day in which the violation occurs
17or persists.

18(b) Administrative penalties may be assessed by the board in
19the same manner as civil penalties described in subdivision (a)
20upon issuance of an enforcement order pursuant to Section 8701.4,
21but may not be less than five hundred dollars ($500) or exceed
22fifty thousand dollars ($50,000) for a single violation.

23(c) In determining the amount of liability pursuant to
24subdivisions (a) and (b), the following factors shall be considered:

25(1) The nature, circumstance, extent, and gravity of the violation.

26(2) Whether the violation was committed intentionally or
27knowingly.

28(3) Whether the violation is susceptible to restoration or other
29remedial measures.

30(4) Whether the function of the levee, channel, or other flood
31control work is affected by the violation.

32(5) The cost to the state of bringing the action.

33(6) With respect to the person or public agency responsible for
34the violation, any voluntary restoration or remedial measures
35undertaken, any prior history of violations, the degree of
36culpability, economic profits, if any, resulting from, or expected
37to result as a consequence of, the violation, and other matters the
38board deems relevant.

39(d) Any penalties assessed shall be required to be paid within
4030 calendar days.

P9    1(e) begin deleteNo end deletebegin insertA end insertperson or public agency shallbegin insert notend insert be subject to both
2civil and administrative penalties for the same violation.

3(f) After the time for judicial review pursuant to Section 8579
4has passed, the board may apply to the clerk of the appropriate
5court in the county in which the administrative penalties were
6imposed for a judgment to collect the penalties assessed. The
7application, which shall include a certified copy of the board action,
8constitutes a sufficient showing to warrant issuance of the
9judgment. The clerk shall enter judgment immediately in
10conformity with the application. The judgment so entered has the
11same force and effect, and is subject to all the provisions of law
12relating to, a judgment in a civil action and may be enforced in the
13same manner as any other judgment of the court in which it is
14entered.

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

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

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

27

8704.2.  

(a) The board, after providing the opportunity for a
28hearing, shall have the authority to record a lien with the county
29clerk in the county of this state where the person or agency’s
30property responsible for the violation is located, to recover any
31and all of the following:

32(1) Costs incurred in abating, removing, and restoring a
33violation, including, but not limited to, costs incurred in seeking
34removal, abatement, and restoration pursuant to this part.

35(2) Costs incurred in the summary abatement of emergencies.

36(3) Civil or administrative penalties assessed pursuant to this
37article.

38(4) Attorney’s fees associated with actions to enforce this part.

39(b) A lien recorded pursuant to this section shall have the same
40force, effect, and priority as a judgment lien.

P10   1

8704.4.  

The remedies provided by this article are not exclusive
2of, but shall be concurrent with and in addition to, any other
3remedy, penalty, or sanction that may exist by law, civil or
4criminal. The board may enforce compliance with the provisions
5of this article by mandamus, mandatory injunction, or by any other
6appropriate remedy authorized by law. The action or proceeding
7may be commenced and maintained by the board in the name of
8the state.

9

8705.  

The Flood Risk Management Fund is hereby established
10in the State Treasury. All funds received from penalties pursuant
11to this article shall be paid into the fund. Upon appropriation by
12the Legislature, the moneys in the fund shall be expended by the
13board to carry out enforcement pursuant to this part, including the
14costs of the abatement and restoration of violations and recent
15litigation.

16

8706.  

The board may maintain actions in the name of the state
17to compel by injunction the owner or owners of any bridge, trestle,
18wire line, viaduct, embankment, or other structure or obstruction
19that shall be intersected, traversed, or crossed by any bypass,
20drainage canal, channel, or overflow channel to construct or alter
21any structure in order to offer a minimum of obstruction to the free
22flow of water. In the case of existing works, the board may compel
23the removal or alteration of structures or obstructions that impede
24the free flow of water.

25

8706.5.  

Any use of land, right of way, or easement within the
26jurisdiction of the board, whether for cultivation, planting of crops,
27trees or other vegetation, storage or disposal of material, or other
28encroachment upon, improvement of, or use of that land, right of
29way, or easement that does or may interfere with or obstruct
30operation or maintenance in violation of this part constitutes a
31public nuisance, and the board may commence and maintain a suit
32in the name of the people of the state for the prevention or
33abatement of that nuisance.

34

8707.  

If the board or Attorney General prevails in a civil action
35to enforce this part, the board or Attorney General shall be awarded
36attorney’s fees and costs, including, but not limited to, any fees
37and costs incurred by its agents.

38

8708.  

(a) Nothing in this article shall be construed to prevent
39the department, the board, the executive officer, or a
40levee-maintaining agency from taking any action to prevent an
P11   1imminent failure of a levee, to operate a flood control feature, or
2to take other emergency action necessary to protect the public
3welfare.

4(b) To the extent emergency action is required to abate an action,
5any aggrieved person may request a hearing before the board within
630 days after the action has been commenced.

7(c) After a public hearing, by request or by its own motion, the
8entity that has carried out the abatement functions pursuant to this
9section may seek reimbursement of its abatement costs and may
10pursue any legal remedies available to recover its costs, including
11imposing a lien pursuant to Section 8704.2.

begin insert
12

begin insert8709.end insert  

The board shall adopt emergency regulations necessary
13to implement this article in accordance with Chapter 3.5
14(commencing with Section 11340) of Part 1 of Division 3 of Title
152 of the Government Code. The adoption of emergency regulations
16shall be deemed an emergency and necessary for the immediate
17preservation of the public peace, health and safety, or general
18welfare.

end insert
19

SEC. 4.  

Section 8732 of the Water Code is amended to read:

20

8732.  

The board may hold a hearing or partial hearing before
21a committee of one or more members of the board, before a
22qualified neutral hearing officer designated by the board president,
23or before the executive officer or chief engineer of the board, at
24any place within the state.



O

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