Amended in Senate May 24, 2013

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 providesbegin 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 interferebegin delete with orend deletebegin insert with,end insert obstruct thebegin delete performance of the maintenanceend deletebegin insert performance, maintenance,end insert or operationbegin delete of works or other plans adopted by the board within the jurisdiction of the board, as specifiedend deletebegin insert of, or otherwise take actions that may adversely affect facilities of the State Plan of Flood Control, designated floodways, or streams that are regulated by the boardend insert. This bill would authorize thebegin delete boardend deletebegin insert board, following notice and opportunity for a hearing,end insert 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,begin insert flood system,end insert 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 wouldbegin delete provideend deletebegin insert requireend insert 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 boardbegin delete may issueend deletebegin insert shall hold an enforcement hearing and may, at the conclusion of the hearing, issueend insert 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 withbegin delete these worksend deletebegin insert facilities of the State Plan of Flood Control, designated floodways, or streams that are regulated by the boardend insert. 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:

P3    1

SECTION 1.  

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

2

8579.  

(a) Any aggrieved person shall have a right tobegin insert seekend insert
3 judicial review of anybegin delete decision or action ofend deletebegin insert permit or enforcement
4order issued byend insert
thebegin delete board, or the executive officer acting pursuant
5to delegated authority,end delete
begin insert boardend insert by filing a petition for a writ of
6mandate in accordance with Section 1094.5 of the Code of Civil
7Procedure, withinbegin delete 60end deletebegin insert 30end insert days after the decision or action has
8become final.

9(b) For purposes of this section, an “aggrieved person” means
10begin delete any of the following:end delete

11begin delete(1)end deletebegin deleteend deletebegin deleteAend deletebegin insert anyend insert 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 actionbegin delete appealedend deletebegin insert appealed, or that,
14by other appropriate means before the decision, informed the
15board of the nature of their concernsend insert
.

begin 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.

end delete
begin delete

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).

end delete
22

SEC. 2.  

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

P4    1

SEC. 3.  

Article 6 (commencing with Section 8700) is added
2to Chapter 3 of Part 4 of Division 5 of the Water Code, to read:

3 

4Article 6.  Enforcement of Unauthorized Activities and
5Encroachments
6

 

7

8700.  

begin insert(a)end insertbegin insertend insertIt is unlawful for any person or public agency to
8interferebegin delete with orend deletebegin insert with,end insert obstruct thebegin delete performance of the maintenanceend delete
9begin insert performance, maintenance,end insert or operationbegin 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
begin insert of, or otherwise take actions that may
19adversely affect facilities of the State Plan of Flood Control,
20designated floodways, or streams that are regulated by the board.end insert

21begin insert(b)end insertbegin insertend insertbegin insertTheend insert 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 interferencebegin 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
begin insert proscribed
31in subdivision (a)end insert
.

32

8701.  

(a) If thebegin delete board,end deletebegin insert board orend insert the executivebegin delete officer, or
33departmentend delete
begin insert officer end insert determines that any person or public agency
34has undertaken, is threatening to undertake, or maintains any
35encroachment,begin insert flood system end insert improvement, or activity in violation
36of this part, thebegin delete board,end deletebegin insert board or the end insert executivebegin delete officer, or
37departmentend delete
begin insert officerend insert may issue a notice of violation to the person or
38public agency responsible for thebegin delete encroachmentend deletebegin insert encroachment,
39flood system improvement,end insert
or activity.

P5    1(b) begin deleteA end deletebegin insertThe department or a end insertlocal agencybegin delete that operates and
2maintains facilities within the board’s jurisdictionend delete
maybegin delete alsoend delete issue
3a notice of violation pursuant to subdivision (a)begin insert for facilities within
4the board’s jurisdiction that the department or local agency
5operates and maintainsend insert
if the board delegates thebegin delete localend delete agency that
6authority. This subdivision shall not require thebegin insert department orend insert
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,begin insert flood
10system end insert
improvement, or encroachment that constitutes a violation
11of thisbegin delete articleend deletebegin insert article, including the sections of this part or board
12regulations that are being violatedend insert
.

13(2) A statement of whether the activity,begin insert flood systemend insert
14 improvement, or encroachment may be eligible for a permit from
15the board.

16(3) The corrective actions that shall be taken within a specified
17time period.

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
22action.

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 personend delete begin insert person’send insert
29 or publicbegin delete agency plus fines orend deletebegin insert agency’s expense andend insert penalties.

30(6) The name, address, and telephone number of the state or
31begin delete localend deletebegin insert issuingend insert 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
34fivebegin delete businessend deletebegin insert calendarend insert 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.

39

8701.2.  

(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 issuedbegin insert toend insert cease and desist.begin insert Nothing shall prevent
4the board or executive officer from issuing a cease and desist order
5in cases where it deems a notice of violation would not to be in
6the best interest of the state.end insert

begin delete

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
39board.

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.

end delete
begin insert

14(b) A cease and desist order shall do all of the following:

end insert
begin insert

15(1) Include a copy of the notice of violation.

end insert
begin insert

16(2) Be effective upon its issuance and served immediately
17pursuant to Section 8703.

end insert
begin insert

18(3) Require that the corrective actions described in the notice
19of violation be completed within a specified time period or the
20person or public agency shall be subject to an enforcement order
21pursuant to Section 8701.4.

end insert
begin insert

22(4) Provide a date, time, and location of a public meeting before
23 the board at which the person, entity, or public agency may appear
24to contest the cease and desist order.

end insert
begin insert

25(c) The meeting noticed pursuant to paragraph (4) of subdivision
26(b) shall be consistent with all of the following:

end insert
begin insert

27(1) The meeting shall be scheduled at least 30 days after
28issuance of the cease and desist order and shall be held pursuant
29to the provisions of this part and regulations adopted by the board.

end insert
begin insert

30(2) At the meeting, the board may affirm, amend, modify, stay,
31or rescind the cease and desist order.

end insert
begin insert

32(3) If a person or public agency subject to a cease and desist
33order fails to appear at the meeting, the cease and desist order
34may be approved by default.

end insert
35

8701.4.  

(a) If the boardbegin 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
begin insert or executive officer determines that any
39person or public agency has failed to correct a violation as outlined
P8    1in a cease and desist order, the board shall hold an enforcement
2hearing to consider the issuance of an enforcement orderend insert
.

begin delete

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

end delete
begin insert

4(b) The enforcement hearing shall comply with all of the
5following:

end insert
begin insert

6(1) Notice of the hearing shall be provided at least 30 days
7before the hearing is scheduled pursuant to Section 8703, unless
8it is determined that the public interest necessitates a shorter notice
9period.

end insert
begin insert

10(2) Notice of the hearing shall include a proposed enforcement
11order, including any proposed administrative penalties.

end insert
begin insert

12(3) The hearing shall be held pursuant to the provisions of this
13part and regulations adopted by the board.

end insert
begin insert

14(4) If the person or public agency subject to the cease and desist
15order fails to appear at the hearing, the right to a hearing will be
16deemed waived.

end insert
begin insert

17(c) At the conclusion of the hearing, the board may approve,
18amend, or reject the proposed enforcement order and thereby take
19any and all of the following actions:

end insert

20(1) Order thebegin delete removal and restorationend deletebegin insert removal, modification,
21or abatementend insert
of the encroachment,begin insert flood system end insert 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

begin 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
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.

end delete
begin insert

11(2) Order the restoration of the site.

end insert
begin insert

12(3) Impose and require the payment of administrative penalties
13as set forth in Section 8704.

end insert
begin insert

14(4) Initiate a civil action in the name of the state for mandamus,
15injunction, civil penalties, or other appropriate remedy authorized
16by law.

end insert
begin insert

17(5) Order any other actions or conditions as the board may
18determine are necessary to resolve the violation and ensure
19compliance with this part.

end insert
begin insert

20(d) The enforcement order shall state any necessary findings
21and shall be served immediately pursuant to Section 8703.

end insert
begin insert

22(e) A person, entity, or public agency against which the board
23has issued an enforcement order may seek judicial review of the
24enforcement order pursuant to Section 8579. The enforcement
25order shall be deemed effective upon issuance.

end insert
begin insert

26(f) If the board orders removal and restoration pursuant to this
27part, the board, its contractor, or its designee may conduct the
28removal and restoration, the costs of which shall be collected from
29the responsible person or public agency by whatever legal remedy
30is available, including, but not limited to, the placement of a lien
31on the property owned by the person or public agency responsible
32for the violation pursuant to Section 8704.2. Removal or
33restoration actions shall not be taken by the board until after the
34time for judicial review has passed.

end insert
begin insert

35(g) This section does not authorize the issuance of an
36 enforcement order as to any lawful activity undertaken by a public
37agency pursuant to Section 8708.

end insert
38

8702.  

(a) Thebegin delete boardend deletebegin insert board, following notice and opportunity
39for a hearing,end insert
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 findingsbegin insert based on substantial
2evidenceend insert
:

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
7levee,begin delete channel, orend deletebegin insert channel,end insert flood controlbegin delete workend deletebegin insert work, or other
8facility of the State Plan of Flood Controlend insert
to fulfill its particular
9intended role in the overall flood control plan.

10(3) The encroachment is not in conformance withbegin delete an adopted
11plan of flood control,end delete
state law, board regulations, or, in the case
12of facilities of the State Plan of Flood Controlbegin delete where the board has
13given assurances to the United Statesend delete
, the standards and regulations
14of the Secretary of the Army.

15(b) Routine maintenancebegin insert by the board, the executive officer, or
16local agencies that operate and maintain facilities and works on
17behalf of the boardend insert
that includes the removal or modification of
18abandoned property, fences, gates, and vegetation onbegin delete the levee
19structure andend delete
begin insert a levee orend insert other flood control structure shall not be
20subject to this section.

begin insert

21(c) The removal of previously permitted encroachments shall
22not be subject to administrative or civil penalties pursuant to
23Section 8704 or 8704.1.

end insert
24

8703.  

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
28means:

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.

34

8704.  

(a) begin deleteAny end deletebegin insertCivil penalties may be imposed by a court of
35competent jurisdiction against any end insert
person or public agency that
36undertakes an activity,begin insert flood systemend insert 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
39executive officerbegin 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
begin insert in an amount not less
2than five hundred dollars ($500) and not greater than thirty
3thousand dollars ($30,000)end insert
.

begin 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.

end delete
begin insert

9(b) In addition to any other penalties, civil penalties may be
10imposed by a court of competent jurisdiction against any person
11or public agency that intentionally and knowingly undertakes an
12activity, flood system improvement, or encroachment that is in
13violation of this part or that is inconsistent with any permit or
14cease and desist order previously issued by the board or executive
15officer in an amount that shall not be less than one thousand
16dollars ($1,000) or more than fifteen thousand dollars ($15,000)
17per day for each day in which the encroachment persists.

end insert

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.

begin delete

21(2) Whether the violation was committed intentionally or
22knowingly.

end delete
begin delete

23(3)

end delete

24begin insert(2)end insert Whether the violation is susceptible to restoration or other
25remedial measures.

begin delete

26(4)

end delete

27begin insert(3)end insert Whether the function of the levee, channel, or other flood
28control work is affected by the violation.

begin delete

29(5)

end delete

30begin insert(4)end insert The cost to the state of bringing the action.

begin delete

31(6)

end delete

32begin insert(5)end insert 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.

begin delete

38(d) Any penalties assessed shall be required to be paid within
3930 calendar days.

end delete
begin insert

P12   1(d) Civil penalties may be imposed by a court of competent
2jurisdiction against any person, entity, or public agency that
3intentionally or negligently violates any cease and desist order
4issued, reissued, or amended by the board, or any restoration
5order issued, reissued, or amended by the board in an amount that
6shall not exceed six thousand dollars ($6,000) for each day in
7which that violation persists. Any actual penalty imposed shall be
8reasonably proportionate to the damage suffered as a consequence
9of the violation.

end insert
begin delete

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
23entered.

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.

end delete
begin insert
36

begin insert8704.1.end insert  

(a) Administrative penalties may be imposed by the
37board in the same manner as civil penalties described in Section
388704, upon an enforcement hearing and issuance of an enforcement
39order pursuant to Section 8701.4, but shall not be less than five
P13   1hundred dollars ($500) or exceed fifty thousand dollars ($50,000)
2for a single violation.

3(b) In imposing penalties, the board shall express its rationale
4for the amount and specifically address the factors listed under
5subdivision (c) of Section 8704.

6(c) Any penalties imposed shall be paid within 60 days.

7(d) A person or public agency shall not be subject to both civil
8and administrative penalties for the same violation.

9(e) After the time for judicial review pursuant to Section 8579
10has passed, the board may apply to the clerk of the appropriate
11court in the county in which the administrative penalties were
12imposed for a judgment to collect the penalties assessed. The
13application, which shall include a certified copy of the board
14action, constitutes a sufficient showing to warrant issuance of the
15judgment. The clerk shall enter judgment immediately in conformity
16with the application. The judgment so entered has the same force
17and effect, and is subject to all the provisions of law relating to,
18a judgment in a civil action and may be enforced in the same
19manner as any other judgment of the court in which it is entered.

end insert
20

8704.2.  

(a) begin deleteThe board, after providing the opportunity for a
21hearing, end delete
begin insertPursuant to subdivision (f) of Section 8701.4, the board
22or the board’s designee end insert
shall have the authority to record a lien
23with the county clerk in the county of this state where thebegin delete personend delete
24begin insert person’send insert 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.

begin delete

30(3) Civil or administrative penalties assessed pursuant to this
31article.

32(4)

end delete

33begin insert(3)end insert 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.

begin insert

36(c) Before recording a lien, the board shall provide notice and
37an opportunity for a hearing to contest the amount of the lien.

end insert
begin insert

38(1) Notice shall be provided at least 20 days before the hearing
39pursuant to Section 8703.

end insert
begin insert

P14   1(2) The hearing required by this section may be satisfied by an
2enforcement order hearing pursuant to Section 8701.4 or, in the
3summary abatement of emergencies, a hearing pursuant to Section
48708.

end insert
5

8704.4.  

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
12the state.

13

8705.  

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
19litigation.

20

8706.  

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.

29

8706.5.  

begin deleteAny use of land, right of way, or easement within the
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
begin insertAny activity that
35does or may interfere with, obstruct the performance, maintenance,
36or operation of, or otherwise adversely affect facilities of the State
37Plan of Flood Control, designated floodways, or streams that are
38regulated by the board end insert
constitutes a public nuisance, and the board
39may commence and maintain a suit in the name of the people of
40the state for the prevention or abatement of that nuisance.

P15   1

8707.  

If the board or Attorney General prevails in a civil action
2to enforce this part,begin insert or if a local agency prevails in a civil action
3to seek abatement costs under subdivision (b) of Section 8708 or
4removal or restoration costs as the board’s designee under
5subdivision (f) of Section 8701.4,end insert
thebegin delete board orend deletebegin insert board,end insert Attorney
6begin delete Generalend deletebegin insert General, or local agencyend insert shall be awarded attorney’s fees
7and costs, including, but not limited to, any fees and costs incurred
8by its agents.

9

8708.  

(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 deletebegin insert channel, floodway, stream
13bank, orend insert
flood control feature, orbegin delete to takeend delete other emergency action
14necessary to protect the public welfare.

15(b) To the extent emergency action is requiredbegin delete to abate an action,
16any aggrieved personend delete
begin insert that involves the removal, modification, or
17abatement of an encroachment, flood system improvement, or
18activity maintained by an individual, entity, or public agency, the
19individual, entity, or public agencyend insert
may request a hearing before
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.

26

8709.  

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
32welfare.

33

SEC. 4.  

Section 8732 of the Water Code is amended to read:

34

8732.  

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.



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