Amended in Assembly June 24, 2013

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 provides 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, obstruct the performance, maintenance, or operation 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 board. This bill would authorize the board, following notice and opportunity for a hearing, 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, flood system, 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 require 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 shall hold an enforcement hearing and may, at the conclusion of the hearing, 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 facilities of the State Plan of Flood Control, designated floodways, or streams that are regulated by the board. 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 to seek
3judicial review of any permit or enforcement order issued by the
4board by filing a petition for a writ of mandate in accordance with
5Section 1094.5 of the Code of Civil Procedure, within 30 days
6after the decision or action has become final.

7(b) For purposes of this section, an “aggrieved person” means
8any person or public agency that, in person or through a
9representative, appeared at a public hearing of the board in
10connection with the decision or action appealed, or that, by other
11appropriate means before the decision, informed the board of the
12nature of their concerns.

13

SEC. 2.  

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143 of Part 4 of Division 5 of the Water Code is repealed.

15

SEC. 3.  

Article 6 (commencing with Section 8700) is added
16to Chapter 3 of Part 4 of Division 5 of the Water Code, to read:

17 

18Article 6.  Enforcement of Unauthorized Activities and
19Encroachments
20

 

21

8700.  

(a) It is unlawful for any person or public agency to
22interfere with, obstruct the performance, maintenance, or operation
23 of, or otherwise take actions that may adversely affect facilities of
P4    1the State Plan of Flood Control, designated floodways, or streams
2that are regulated by the board.

3(b) The board, executive officer, department, and local agencies
4that operate and maintain facilities and works on behalf of the
5board shall have the authority, as set forth in this article, to take
6administrative or civil enforcement actions to abate and remedy
7any interference or potential interference proscribedbegin delete inend deletebegin insert byend insert
8 subdivision (a).

9

8701.  

(a) If the board or the executive officer determines that
10any person or public agency has undertaken, is threatening to
11undertake, or maintains any encroachment, flood system
12improvement, or activity in violation of this part, the board or the
13executive officer may issue a notice of violation to the person or
14public agency responsible for the encroachment, flood system
15improvement, or activity.

16(b) The department or a local agency may issue a notice of
17violation pursuant to subdivision (a) for facilities within the board’s
18jurisdiction that the department or local agency operates and
19maintains if the board delegates the agency that authority. This
20subdivision shall not require the department or local agency to
21accept that delegation of authority.

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

23(1) A statement describing the activity, failure to act, flood
24system improvement, or encroachment that constitutes a violation
25of this article, including the sections of this part or board
26regulations that are being violated.

27(2) A statement of whether the activity, flood system
28improvement, or encroachment may be eligible for a permit from
29the board.

30(3) The corrective actions that shall be taken within a specified
31time period.

32(4) Whether the person or public agency may correct the
33violation without obtaining prior approval from the board or
34executive officer, or whether prior approval from the board or
35executive officer must be obtained prior to taking a corrective
36action.

37(5) A statement that the notice of violation shall be referred to
38the board and that the failure to take the requested actions within
39the time specified may subject the person or public agency to a
40cease and desist order and the imposition of further remedial and
P5    1enforcement actions, including, but not limited to, correction of
2the violation by the board at the person’s or public agency’s
3expense and penalties.

4(6) The name, address, and telephone number of the state or
5issuing agency that may be contacted for further information.

6(d) The notice of violation shall be served in accordance with
7Section 8703 and a copy transmitted to the executive officer within
8five calendar days of its issuance. The board or the executive
9officer may amend the notice of violation, and, once served in
10accordance with Section 8703, the amended notice of violation
11shall supersede any notice of violation previously issued for the
12same violation.

13

8701.2.  

(a) If the board or executive officer determines that
14any person or public agency has failed to adequately respond to a
15notice of violation, the board or executive officer may issue an
16order directing that the person or public agency to whom the notice
17of violation was issued to cease and desist.begin delete Nothing shall prevent
18the board or executive officer from issuing a cease and desist order
19in cases where it deems a notice of violation would not to be in
20the best interest of the state.end delete

begin insert

21(b) Nothing shall prevent the board or executive officer from
22issuing a cease and desist order without first issuing a notice of
23violation in cases where it deems a notice of violation would not
24be in the best interest of the state. In the event the board issues a
25cease and desist order without first issuing a notice of violation,
26the cease and desist order shall contain the information required
27under subdivision (c) of Section 8701.

end insert
begin delete

28(b)

end delete

29begin insert(c)end insert A cease and desist order shall do all of the following:

30(1) Include a copy of the notice of violation.

31(2) Be effective upon its issuance and served immediately
32pursuant to Section 8703.

33(3) Require that the corrective actions described in the notice
34of violation be completed within a specified time period or the
35person or public agency shall be subject to an enforcement order
36pursuant to Section 8701.4.

37(4) Provide a date, time, and location of a public meeting before
38 the board at which thebegin delete person, entity,end deletebegin insert personend insert or public agency may
39appear to contest the cease and desist order.

begin delete

40(c)

end delete

P6    1begin insert(d)end insert The meeting noticed pursuant to paragraph (4) of subdivision
2begin delete (b)end deletebegin insert (c)end insert shall be consistent with all of the following:

3(1) The meeting shall be scheduledbegin insert to occurend insert at least 30 days
4after issuance of the cease and desist order and shall be held
5pursuant to the provisions of this part and regulations adopted by
6the board.

7(2) At the meeting, the board may affirm, amend, modify, stay,
8or rescind the cease and desist order.

9(3) If a person or public agency subject to a cease and desist
10order fails to appear at the meeting, the cease and desist order may
11be approved by default.

12

8701.4.  

(a) If the board or executive officer determines that
13any person or public agency has failed to correct a violation as
14outlined in a cease and desist order, the board shall hold an
15enforcement hearing to consider the issuance of an enforcement
16order.

17(b) The enforcement hearing shall comply with all of the
18following:

19(1) Notice of thebegin delete hearingend deletebegin insert hearing, issued pursuant to Section
208703,end insert
shall be provided at least 30 days before the hearing is
21scheduledbegin delete pursuant to Section 8703end deletebegin insert to occurend insert, unless it is determined
22that the public interest necessitates a shorter notice period.

23(2) Notice of the hearing shall include a proposed enforcement
24order, including any proposed administrative penalties.

25(3) The hearing shall be held pursuant to the provisions of this
26part and regulations adopted by the board.

27(4) If the person or public agency subject to the cease and desist
28order fails to appear at the hearing, the right to a hearing will be
29deemed waived.

30(c) At the conclusion of the hearing, the board may approve,
31amend, or reject the proposed enforcement order and thereby take
32any and all of the following actions:

33(1) Order the removal, modification, or abatement of the
34encroachment, flood system improvement, or activity causing a
35violation of this part.

36(2) Order the restoration of the site.

37(3) Impose and require the payment of administrative penalties
38as set forth in Section 8704.

begin insert

P7    1(4) Order the recording of the enforcement order with the office
2of the county recorder of the county in which the property
3associated with the violation is located.

end insert
begin delete

4(4)

end delete

5begin insert(5)end insert Initiate a civil action in the name of the state for mandamus,
6injunction, civil penalties, or other appropriate remedy authorized
7by law.

begin delete

8(5)

end delete

9begin insert(6)end insert Order any other actions or conditions as the board may
10determine are necessary to resolve the violation and ensure
11compliance with this part.

12(d) The enforcement order shall state any necessary findings
13and shall be served immediately pursuant to Section 8703.

14(e) Abegin delete person, entity,end deletebegin insert personend insert or public agency against which the
15board has issued an enforcement order may seek judicial review
16of the enforcement order pursuant to Section 8579. The
17enforcement order shall be deemed effective upon issuance.

18(f) If the board ordersbegin delete removal andend deletebegin insert removal, modification,
19abatement, orend insert
restoration pursuant to this part, the board, its
20contractor, or its designee may conduct thebegin delete removal and restorationend delete
21begin insert workend insert, the costs of which shall be collected from the responsible
22person or public agency by whatever legal remedy is available,
23including, but not limited to, the placement of a lien on the property
24owned by the person or public agency responsible for the violation
25pursuant to Section 8704.2.begin delete Removalend deletebegin insert Removal, modification,
26abatement,end insert
or restoration actions shall not be taken by the board
27until after the time for judicial review has passed.

begin insert

28(g) If the board orders the enforcement order to be recorded
29with the office of the county recorder, the executive officer shall
30issue a certificate of abatement to the person or public agency
31against whose property the enforcement order was recorded when
32the enforcement action has been fully resolved, including the
33payment of any costs and penalties. The person or public agency
34may, at the owner’s expense, record the certificate with the office
35of the county recorder.

end insert
begin delete

36(g)

end delete

37begin insert(h)end insert This section does not authorize the issuance of an
38 enforcement order as to any lawful activity undertaken by a public
39agency pursuant to Section 8708.

P8    1

8702.  

(a) The board, following notice and opportunity for a
2hearing, may order the removal or modification of an encroachment
3that was previously issued a permit by the board if the board makes
4one of the following findings based on substantial evidence:

5(1) The encroachment presents a threat to the structural integrity
6of the levee, channel, flood control work, or other facility of the
7State Plan of Flood Control.

8(2) The encroachment impairs the functional capability of the
9levee, channel, flood control work, or other facility of the State
10Plan of Flood Control to fulfill its particular intended role in the
11overall flood control plan.

12(3) The encroachment is not in conformance with state law,
13board regulations, or, in the case of facilities of the State Plan of
14Flood Control , the standards and regulations of the Secretary of
15the Army.

16(b) Routine maintenance by the board, the executive officer,
17begin insert the department,end insert or local agencies that operate and maintain
18facilities and works on behalf of the board that includes the removal
19or modification of abandoned property, fences, gates, and
20vegetation on a levee or other flood control structure shall not be
21subject to this section.

22(c) The removalbegin insert or modificationend insert of previously permitted
23encroachments shall not be subject to administrative or civil
24penalties pursuant to Section 8704 or 8704.1.

begin insert

25(d) If the board orders the removal or modification of a
26previously permitted encroachment, the permit for the
27encroachment shall be modified or revoked accordingly.

end insert
28

8703.  

Notice and service required by this article shall be
29provided to the person or public agency believed to be responsible
30for the violation and the owner of the property on which the
31violation occurred or is threatened to occur by one of the following
32means:

33(a) Hand delivery.

34(b) Certified mail.

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

38

8704.  

(a) Civil penalties may be imposed by a court of
39competent jurisdiction against any person or public agency that
40undertakes an activity, flood system improvement, or encroachment
P9    1that is in violation of this part or that is inconsistent with anybegin delete permit
2orend delete
begin insert permit,end insert cease and desistbegin delete orderend deletebegin insert order, or enforcement orderend insert
3 previously issued by the board or executive officer in an amount
4not less than five hundred dollars ($500) and not greater than thirty
5thousand dollars ($30,000).

6(b) In addition to any other penalties, civil penalties may be
7imposed by a court of competent jurisdiction against any person
8or public agency that intentionally and knowingly undertakes an
9activity, flood system improvement, or encroachment that is in
10violation of this part or that is inconsistent with anybegin delete permit orend delete
11begin insert permit, end insert cease and desistbegin delete orderend deletebegin insert order, or enforcement orderend insert
12 previously issued by the board or executive officer in an amount
13that shall not be less than one thousand dollars ($1,000) or more
14than fifteen thousand dollars ($15,000) per day for each day in
15which thebegin delete encroachmentend deletebegin insert violationend insert persists.

16(c) In determining the amount of liability pursuant to
17subdivisions (a) and (b), the following factors shall be considered:

18(1) The nature, circumstance, extent, and gravity of the violation.

19(2) Whether the violation is susceptible tobegin delete restorationend deletebegin insert removal,
20modification, abatement, restoration,end insert
or other remedial measures.

21(3) Whether the function of the levee, channel, or other flood
22control work is affected by the violation.

23(4) The cost to the state of bringing the action.

24(5) With respect to the person or public agency responsible for
25the violation, any voluntarybegin delete restoration orend delete remedial measures
26undertaken, any prior history of violations, the degree of
27culpability, economic profits, if any, resulting from, or expected
28to result as a consequence of, the violation, and other mattersbegin delete the
29board deemsend delete
begin insert deemedend insert relevant.

30(d) Civil penalties may be imposed by a court of competent
31jurisdiction against anybegin delete person, entity,end deletebegin insert personend insert or public agency
32that intentionally or negligently violates any cease and desist order
33issued, reissued, or amended by the board, or anybegin delete restorationend delete
34begin insert enforcement end insert order issued, reissued, or amended by the board in
35an amount that shall not exceed six thousand dollars ($6,000) for
36each day in which that violation persists. Any actual penalty
37imposed shall be reasonably proportionate to the damage suffered
38as a consequence of the violation.

39

8704.1.  

(a) Administrative penalties may be imposed by the
40board in the same manner as civil penalties described in Section
P10   18704, upon an enforcement hearing and issuance of an enforcement
2order pursuant to Section 8701.4, but shall not be less than five
3hundred dollars ($500) or exceed fifty thousand dollars ($50,000)
4for a single violation.

5(b) In imposing penalties, the board shall express its rationale
6for the amount and specifically address the factors listed under
7subdivision (c) of Section 8704.

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

9(d) A person or public agency shall not be subject to both civil
10and administrative penalties for the same violation.

11(e) After the time for judicial review pursuant to Section 8579
12has passed, the board may apply to the clerk of the appropriate
13court in the county in which the administrative penalties were
14imposed for a judgment to collect the penalties assessed. The
15application, which shall include a certified copy of the board action,
16constitutes a sufficient showing to warrant issuance of the
17judgment. The clerk shall enter judgment immediately in
18conformity with the application. The judgment so entered has the
19same force and effect, and is subject to all the provisions of law
20relating to, a judgment in a civil action and may be enforced in the
21same manner as any other judgment of the court in which it is
22 entered.

23

8704.2.  

(a) Pursuant to subdivision (f) of Section 8701.4, the
24board or the board’s designee shall have the authority to record a
25lien with the county clerk in the county of this state where the
26person’s or agency’s property responsible for the violation is
27located, to recover any and all of the following:

28(1) Costs incurred in abating, removing, and restoring a
29violation, including, but not limited to, costs incurred in seeking
30begin insert modification, end insert removal, abatement,begin delete andend deletebegin insert orend insert restoration pursuant to
31this part.

32(2) Costs incurred in the summary abatement of emergencies.

33(3) 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.

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

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

P11   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.

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 thebegin delete abatement andend deletebegin insert modification, removal, abatement, orend insert
19 restoration of violations andbegin delete recentend deletebegin insert related end insertlitigation.

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.  

Any activity that does or may interfere with, obstruct
30the performance, maintenance, or operation of, or otherwise
31adversely affect facilities of the State Plan of Flood Control,
32designated floodways, or streams that are regulated by the board
33constitutes a public nuisance, and the board may commence and
34maintain a suit in the name of the people of the state for the
35prevention or abatement of that nuisance.

36

8707.  

If the board or Attorney General prevails in a civil action
37to enforce this part, or if a local agency prevails in a civil action
38to seek abatement costs under subdivisionbegin delete (b)end deletebegin insert (c)end insert of Section 8708
39orbegin delete removalend deletebegin insert modification, removal, abatement,end insert or restoration costs
40as the board’s designee under subdivision (f) of Section 8701.4,
P12   1the board, Attorney General, or local agency shall be awarded
2attorney’s fees and costs, including, but not limited to, any fees
3and costs incurred by its agents.

4

8708.  

(a) Nothing in this article shall be construed to prevent
5the department, the board, the executive officer, or a
6levee-maintaining agency from taking any action to prevent an
7imminent failure of a levee, channel, floodway, stream bank, or
8flood control feature, or other emergency action necessary to
9protect the public welfare.

10(b) To the extent emergency action is required that involves the
11removal, modification, or abatement of an encroachment, flood
12system improvement, or activity maintained by anbegin delete individual,
13entity,end delete
begin insert individualend insert or public agency, thebegin delete individual, entity,end deletebegin insert individualend insert
14 or public agency may request a hearing before the board within
1530 days after the action has been commenced.

16(c) After a public hearing, by request or by its own motion, the
17entity that has carried out the abatement functions pursuant to this
18section may seek reimbursement of its abatement costs and may
19pursue any legal remedies available to recover its costs, including
20imposing a lien pursuant to Section 8704.2.

21

8709.  

The board shall adopt emergency regulations necessary
22to implement this article in accordance with Chapter 3.5
23(commencing with Section 11340) of Part 1 of Division 3 of Title
242 of the Government Code. The adoption of emergency regulations
25shall be deemed an emergency and necessary for the immediate
26preservation of the public peace, health and safety, or general
27welfare.

28

SEC. 4.  

Section 8732 of the Water Code is amended to read:

29

8732.  

The board may hold a hearing or partial hearing before
30a committee of one or more members of the board, before a
31qualified neutral hearing officer designated by the board president,
32or before the executive officer or chief engineer of the board, at
33any place within the state.



O

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