SB 753, as amended, Steinberg. Central Valley Flood Protection Board.
(1) Existing law provides
begin delete forend delete 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
begin delete with orend delete obstruct the begin delete performance of the maintenanceend delete or operation begin delete of works or other plans adopted by the board within the jurisdiction of the board, as specifiedend delete. This bill would authorize the begin delete boardend delete 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
begin delete provideend delete 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 begin delete may issueend delete an enforcement order, as
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
begin delete these worksend delete. 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. The bill would require the board to
adopt emergency regulations necessary to implement 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:
Section 8579 is added to the Water Code, to read:
(a) Any aggrieved person shall have a right to
3 judicial review of any
begin delete decision or action ofend delete the begin delete board, or the executive officer acting pursuant by filing a petition for a writ of
5to delegated authority,end delete
6mandate in accordance with Section 1094.5 of the Code of Civil
begin delete 60end delete days after the decision or action has
9(b) For purposes of this section, an “aggrieved person” means
begin delete any of the following:end delete
begin delete(1)end delete begin delete end delete begin deleteAend delete person or public agency that, in person or through a
12representative, appeared at a public hearing of the board in
13connection with the decision or action
begin delete appealedend delete.
16(2) A person or public agency that, by other appropriate means
17prior to the decision, informed the board of the nature of the person
18or public agency’s concerns.
19(3) A person or public agency that for good cause was unable
20to appear, as described in paragraph (1), or inform the board, as
21described in paragraph (2).
Article 6 (commencing with Section 8700) of Chapter
233 of Part 4 of Division 5 of the Water Code is repealed.
Article 6 (commencing with Section 8700) is added
2to Chapter 3 of Part 4 of Division 5 of the Water Code, to read:
It is unlawful for any person or public agency to
begin delete with orend delete obstruct the begin delete performance of the maintenanceend delete
9 or operation
begin delete of works or other plans
10adopted by the board within the jurisdiction of the board, including
11facilities of the State Plan of Flood Control, if the state or a political
12subdivision of the state has given assurances to the Secretary of
13the Army pursuant to Article 2 (commencing with Section 8615),
14that the state or a political subdivision of the state will maintain
15and operate works after completion in accordance with regulations
16prescribed by the Secretary of the Army, and any facilities or works
17constructed as part of an adopted plan of flood control or areas
18protected thereto. Theend delete
21 board, executive officer, department, and local agencies
22that operate and maintain facilities and works on behalf of the
23board shall have the authority, as set forth in this article, to take
24administrative or civil enforcement actions to abate and remedy
25any interference or potential interference
begin delete with these works. The .
26unlawful interference proscribed by this article includes, but is not
27limited to, the construction of any encroachment or improvement
28without, or in violation of, the permits required by this part or the
29maintenance of a previously permitted encroachment that is deemed
30to interfere with these works pursuant to Section 8702end delete
(a) If the
begin delete board,end delete the executive begin delete officer, or determines that any person or public agency
34has undertaken, is threatening to undertake, or maintains any
35encroachment, improvement, or activity in violation
36of this part, the
begin delete board,end delete executive begin delete officer, or may issue a notice of violation to the person or
38public agency responsible for the
begin delete encroachmentend delete or activity.
begin deleteA end deletelocal agency begin delete that operates and
2maintains facilities within the board’s jurisdictionend delete
begin delete alsoend delete issue
3a notice of violation pursuant to subdivision (a) if the board delegates the
begin delete localend delete agency that
6authority. This subdivision shall not require the
7 local agency to accept that delegation of authority.
8(c) A notice of violation shall include all of the following:
9(1) A statement describing the activity, failure to
act, improvement, or encroachment that constitutes a violation
begin delete articleend delete.
13(2) A statement of whether the activity,
14 improvement, or encroachment may be eligible for a permit from
16(3) The corrective actions that shall be taken within a specified
18(4) Whether the person or public agency may correct the
19violation without obtaining prior approval from the board or
20executive officer, or whether prior approval from the board or
21executive officer must be obtained prior to taking a corrective
23(5) A statement that the notice of violation shall be referred to
24the board and that the failure to take the requested actions within
25the time specified may subject the person or public agency to a
26cease and desist order and the imposition of further remedial and
27enforcement actions, including, but not limited to, correction of
28the violation by the board at the
begin delete expense of the
29 or public
begin delete agency plus fines orend delete penalties.
30(6) The name, address, and telephone number of the state or
begin delete localend delete agency that may be contacted for further information.
32(d) The notice of violation shall be served in accordance with
33Section 8703 and a copy transmitted to the executive officer within
begin delete businessend delete days of its issuance. The board or the
35executive officer may amend the notice of violation, and, once
36served in accordance with Section 8703, the amended notice of
37violation shall supersede any notice of violation previously issued
38for the same violation.
(a) If the board or executive officer determines that
40any person or public agency has failed to adequately respond to a
P6 1notice of violation, the board or executive officer may issue an
2order directing that the person or public agency to whom the notice
3of violation was issued cease and desist.
7(b) A cease and desist order shall include a copy of the notice
8of violation and shall require that the corrective actions described
9in the notice of violation be completed within a specified time
10period or the person or public agency shall be subject to an
11enforcement order pursuant to Section 8701.4. A cease and desist
12order shall be effective upon its issuance and shall be served
13immediately pursuant to Section 8703.
14(c) (1) A cease and desist order shall allow the person or agency
15subject to the order to request a hearing before the board within
1630 days of being served with the order.
17(2) If a person or public agency subject to a cease and desist
18order fails to request a hearing within the time specified in
19paragraph (1), the right to a hearing shall be deemed waived and
20no hearing shall be required prior to issuance of an enforcement
21order pursuant to Section 8701.4.
22(d) If a person or public agency subject to a cease and desist
23order requests a hearing in accordance with paragraph (1) of
24subdivision (c), the board shall hold a public hearing on the cease
25and desist order as follows:
26(1) Notice of the hearing shall be provided pursuant to Section
278703 and shall include the date, time, and location of the hearing
28and a statement that failure to appear at the hearing will constitute
29a waiver of the right to a hearing and will result in the entry of a
30default enforcement order.
31(2) The hearing shall be held pursuant to the provisions of this
32part and regulations adopted by the board.
33(3) At the conclusion of the hearing, the board may affirm,
34amend, or rescind the cease and desist order. If the board affirms
35or modifies the cease and desist order and the person or agency
36subject to the order fails to complete the corrective actions required
37in the cease and desist order, no further hearing shall be required
38prior to the issuance of a subsequent enforcement order by the
P7 1(e) If a person or public agency subject to a cease and desist
2order fails to comply with the order and does not request a hearing
3in accordance with paragraph (1) of subdivision (c), the cease and
4desist order shall be recorded with the appropriate county recorder’s
5office by the board against the person or public agency’s property
6associated with the order.
7(f) When an enforcement action has been fully resolved,
8including the payment of any costs and penalties, the executive
9officer shall issue a certificate of abatement to the person or public
10agency against whose property the cease and desist order was
11recorded pursuant to subdivision (e). That person or public agency
12may, at the person or public agency’s expense, record the certificate
13with the appropriate county recorder’s office.
(a) If the board
begin delete determines that any person or public .
36agency has failed to correct a violation as required in a cease and
37desist order issued pursuant to Section 8701.2, the board may issue
38an enforcement orderend delete
3(b) An enforcement order may do the following:end delete
20(1) Order the
begin delete removal and restorationend delete of the encroachment, improvement, or
22activity causing a violation of this part.
begin delete The board, its contractor,
23or its designee may conduct the removal and restoration, the costs
24of which shall be collected from the responsible person or public
25agency by whatever legal remedy is available, including, but not
26limited to, the placement of a lien on the property owned by the
27person or public agency responsible for the violation pursuant to
28Section 8704.2.end delete
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
P9 1order pursuant to Section 8579. The enforcement order shall be
2deemed effective upon issuance, but a removal action shall not be
3taken by the board until after the time for judicial review has
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
begin delete boardend delete may order the removal or modification of an
40encroachment that was previously issued a permit by the board if
P10 1the board makes one of the following findings:
3(1) The encroachment presents a threat to the structural integrity
4of the levee, channel, flood control work, or other facility of the
5State Plan of Flood Control.
6(2) The encroachment impairs the functional capability of the
begin delete channel, orend delete flood control begin delete workend delete to fulfill its particular
9intended role in the overall flood control plan.
10(3) The encroachment is not in conformance with
begin delete an adopted state law, board regulations, or, in the case
11plan of flood control,end delete
12of facilities of the State Plan of Flood Control
begin delete where the board has , the standards and regulations
13given assurances to the United Statesend delete
14of the Secretary of the Army.
15(b) Routine maintenance that includes the removal or modification of
18abandoned property, fences, gates, and vegetation on
begin delete the levee other flood control structure shall not be
19structure andend delete
20subject to this section.
Notice and service required by this article shall be
25provided to the person or public agency believed to be responsible
26for the violation and the owner of the property on which the
27violation occurred or is threatened to occur by one of the following
29(a) Hand delivery.
30(b) Certified mail.
31(c) If the person or agency cannot be reached or reasonably
32notified pursuant to subdivision (a) or (b), by placing a copy of
33the notice or order on the encroachment or property.
begin deleteAny end deleteperson or public agency that
36undertakes an activity, improvement, or encroachment
37that is in violation of this part or that is inconsistent with any permit
38or cease and desist order previously issued by the board or
begin delete may be assessed a civil penalty in an amount not .
40greater than fifteen thousand dollars ($15,000) per day for each
P11 1day in which the violation occurs or persistsend delete
4(b) Administrative penalties may be assessed by the board in
5the same manner as civil penalties described in subdivision (a)
6upon issuance of an enforcement order pursuant to Section 8701.4,
7but may not be less than five hundred dollars ($500) or exceed
8fifty thousand dollars ($50,000) for a single violation.
18(c) In determining the amount of liability pursuant to
19subdivisions (a) and (b), the following factors shall be considered:
20(1) The nature, circumstance, extent, and gravity of the violation.
21(2) Whether the violation was committed intentionally or
24 Whether the violation is susceptible to restoration or other
27 Whether the function of the levee, channel, or other flood
28control work is affected by the violation.
30 The cost to the state of bringing the action.
32 With respect to the person or public agency responsible for
33the violation, any voluntary restoration or remedial measures
34undertaken, any prior history of violations, the degree of
35culpability, economic profits, if any, resulting from, or expected
36to result as a consequence of, the violation, and other matters the
37board deems relevant.
38(d) Any penalties assessed shall be required to be paid within
3930 calendar days.
10(e) A person or public agency shall not
be subject to both civil
11and administrative penalties for the same violation.
12(f) After the time for judicial review pursuant to Section 8579
13has passed, the board may apply to the clerk of the appropriate
14court in the county in which the administrative penalties were
15imposed for a judgment to collect the penalties assessed. The
16application, which shall include a certified copy of the board action,
17constitutes a sufficient showing to warrant issuance of the
18judgment. The clerk shall enter judgment immediately in
19conformity with the application. The judgment so entered has the
20same force and effect, and is subject to all the provisions of law
21relating to, a judgment in a civil action and may be enforced in the
22same manner as any other judgment of the court in which it is
24(g) After the time for judicial review pursuant to Section 8579
25has passed, the board may also recover assessed penalties through
26a lien against the property of the person or agency responsible for
27the violation pursuant to Section 8704.2.
28(h) All funds generated by the imposition of penalties pursuant
29to this section shall be deposited into the Flood Risk Management
30Fund as set forth in Section 8705.
31(i) In addition to the penalties described in this section, any
32 individual who erects or maintains a violation that is found to be
33the proximate cause of a failure of a levee or other flood control
34facility shall be liable for additional damages at law, including any
35liability that may be incurred by the state.
begin deleteThe board, after providing the opportunity for a shall have the authority to record a lien
21hearing, end delete
23with the county clerk in the county of this state where the
begin delete personend delete
24 or agency’s property responsible for the violation is
25located, to recover any and all of the following:
26(1) Costs incurred in abating, removing, and restoring a
27violation, including, but not limited to, costs incurred in seeking
28removal, abatement, and restoration pursuant to this part.
29(2) Costs incurred in the summary abatement of emergencies.
30(3) Civil or administrative
penalties assessed pursuant to this
33 Attorney’s fees associated with actions to enforce this part.
34(b) A lien recorded pursuant to this section shall have the same
35force, effect, and priority as a judgment lien.
The remedies provided by this article are not exclusive
6of, but shall be concurrent with and in addition to, any other
7remedy, penalty, or sanction that may exist by law, civil or
8criminal. The board may enforce compliance with the provisions
9of this article by mandamus, mandatory injunction, or by any other
10appropriate remedy authorized by law. The action or proceeding
11may be commenced and maintained by the board in the name of
The Flood Risk Management Fund is hereby established
14in the State Treasury. All funds received from penalties pursuant
15to this article shall be paid into the fund. Upon appropriation by
16the Legislature, the moneys in the fund shall be expended by the
17board to carry out enforcement pursuant to this part, including the
18costs of the abatement and restoration of violations and recent
The board may maintain actions in the name of the state
21to compel by injunction the owner or owners of any bridge, trestle,
22wire line, viaduct, embankment, or other structure or obstruction
23that shall be intersected, traversed, or crossed by any bypass,
24drainage canal, channel, or overflow channel to construct or alter
25any structure in order to offer a minimum of obstruction to the free
26flow of water. In the case of existing works, the board may compel
27the removal or alteration of structures or obstructions that impede
28the free flow of water.
begin deleteAny use of land, right of way, or easement within the constitutes a public nuisance, and the board
30jurisdiction of the board, whether for cultivation, planting of crops,
31trees or other vegetation, storage or disposal of material, or other
32encroachment upon, improvement of, or use of that land, right of
33way, or easement that does or may interfere with or obstruct
34operation or maintenance in violation of this part end delete
39may commence and maintain a suit in the name of the people of
40the state for the prevention or abatement of that nuisance.
If the board or Attorney General prevails in a civil action
2to enforce this part, the
begin delete board orend delete Attorney
begin delete Generalend delete
shall be awarded attorney’s fees
7and costs, including, but not limited to, any fees and costs incurred
8by its agents.
(a) Nothing in this article shall be construed to prevent
10the department, the board, the executive officer, or a
11levee-maintaining agency from taking any action to prevent an
12imminent failure of a levee,
begin delete to operate aend delete flood control feature, or begin delete to takeend delete other emergency action
14necessary to protect the public welfare.
15(b) To the extent emergency action is required
begin delete to abate an action, may request a hearing before
16any aggrieved personend delete
20the board within 30 days after the action has been commenced.
21(c) After a public hearing, by request or by its own motion, the
22entity that has carried out the abatement functions pursuant to this
23section may seek reimbursement of its abatement costs and may
24pursue any legal remedies available to recover its costs, including
25imposing a lien pursuant to Section 8704.2.
The board shall adopt emergency regulations necessary
27to implement this article in accordance with Chapter 3.5
28(commencing with Section 11340) of Part 1 of Division 3 of Title
292 of the Government Code. The adoption of emergency regulations
30shall be deemed an emergency and necessary for the immediate
31preservation of the public peace, health and safety, or general
Section 8732 of the Water Code is amended to read:
The board may hold a hearing or partial hearing before
35a committee of one or more members of the board, before a
36qualified neutral hearing officer designated by the board president,
37or before the executive officer or chief engineer of the board, at
38any place within the state.