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.
begin delete Thisend delete 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,
begin delete thisend delete bill would authorize the board or executive officer to issue an order directing that person or public agency to cease and desist, as specified. begin delete Thisend delete 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.
begin delete Thisend delete 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 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.
Article 6 (commencing with Section 8700) of Chapter
143 of Part 4 of Division 5 of the Water Code is repealed.
Article 6 (commencing with Section 8700) is added
16to Chapter 3 of Part 4 of Division 5 of the Water Code, to read:
(a) It is unlawful for any person or public agency to
5interfere with, obstruct the performance, maintenance, or operation
6 of, or otherwise take actions that may adversely affect facilities of
7the State Plan of Flood Control, designated floodways, or streams
8that are regulated by the board.
9(b) The board, executive officer, department, and local agencies
10that operate and maintain facilities and works on behalf of the
11board shall have the authority, as set forth in this article, to take
12administrative or civil enforcement actions to abate and remedy
13any interference or potential interference proscribed by subdivision
(a) If the board or the executive officer determines that
16any person or public agency has undertaken, is threatening to
17undertake, or maintains any encroachment, flood system
18improvement, or activity in violation of this part, the board or the
19executive officer may issue a notice of violation to the person or
20public agency responsible for the encroachment, flood system
21improvement, or activity.
22(b) The department or a local agency may issue a notice of
23violation pursuant to subdivision (a) for facilities within the board’s
24jurisdiction that the department or local agency operates and
25maintains if the board delegates the agency that authority. This
26subdivision shall not require the department or local agency to
27accept 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, flood
30system improvement, or encroachment that constitutes a violation
31of this article, including the sections of this part or board
32regulations that are being violated.
33(2) A statement of whether the activity, flood system
34improvement, or encroachment may be eligible for a permit from
36(3) The corrective actions that shall be taken within a specified
38(4) Whether the
person or public agency may correct the
39violation without obtaining prior approval from the board or
40executive officer, or whether prior approval from the board or
P5 1executive officer must be obtained prior to taking a corrective
3(5) A statement that the notice of violation shall be referred to
4the board and that the failure to take the requested actions within
5the time specified may subject the person or public agency to a
6cease and desist order and the imposition of further remedial and
7enforcement actions, including, but not limited to, correction of
8the violation by the board at the person’s or public agency’s
9expense and penalties.
10(6) The name, address, and telephone number of the state or
11issuing agency that may be contacted for further information.
12(d) The notice of violation shall be served in accordance with
13Section 8703 and a copy transmitted to the executive officer within
14five calendar days of its issuance. The board or the executive
15officer may amend the notice of violation, and, once served in
16accordance with Section 8703, the amended notice of violation
17shall supersede any notice of violation previously issued for the
(a) If the board or executive officer determines that
20any person or public agency has failed to adequately respond to a
21notice of violation, the board or executive officer may issue an
22order directing that the person or public agency to whom the notice
23of violation was issued to cease and desist.
begin deleteNothing shall prevent the
begin delete from issuingend delete a cease and desist
26order without first issuing a notice of violation in cases where
begin delete it . In the event the
27deems a notice of violation would not be in the best interest of the
31board issues a cease and desist order without
32first issuing a notice of violation, the cease and desist order shall
33contain the information required under subdivision (c) of Section
35(c) A cease and desist order shall do all of the following:
36(1) Include a copy of the notice of violation.
37(2) Be effective upon its issuance and served immediately
38pursuant to Section 8703.
39(3) Require that the corrective actions described in the notice
40of violation be completed within a specified time period or the
P6 1person or public agency shall be subject to an enforcement order
2pursuant to Section 8701.4.
3(4) Provide a date, time, and location of a public meeting before
4 the board at which the person or public agency may appear to
5contest the cease and desist order.
6(d) The meeting noticed pursuant to paragraph (4) of subdivision
7(c) shall be consistent with all of the following:
8(1) The meeting shall be scheduled to occur at least 30 days
9after issuance of the cease and desist order and shall be held
10pursuant to the provisions of this part and regulations adopted by
12(2) At the meeting, the board may affirm, amend, modify, stay,
13or rescind the cease and desist order.
14(3) If a person or public agency subject to a cease and desist
15order fails to appear at the meeting, the cease and desist order may
16be approved by default.
(a) If the board or executive officer determines that
18any person or public agency has failed to correct a violation as
19outlined in a cease and desist order, the board shall hold an
20enforcement hearing to consider the issuance of an enforcement
22(b) The enforcement hearing shall comply with all of the
24(1) Notice of the hearing, issued pursuant to Section 8703, shall
25be provided at least 30 days before the hearing is scheduled to
26occur, unless it is determined that the public interest necessitates
27a shorter notice period.
28(2) Notice of the hearing shall include a proposed enforcement
29order, including any proposed administrative penalties.
30(3) The hearing shall be held pursuant to the provisions of this
31part and regulations adopted by the board.
32(4) If the person or public agency subject to the cease and desist
33order fails to appear at the hearing, the right to a hearing will be
35(c) At the conclusion of the hearing, the board may approve,
36amend, or reject the proposed enforcement order and thereby take
37any and all of the following actions:
38(1) Order the removal, modification, or abatement of the
39encroachment, flood system improvement, or activity causing a
40violation of this part.
P7 1(2) Order the restoration of the site.
2(3) Impose and require the payment of administrative penalties
3as set forth in Section 8704.
4(4) Order the recording of the enforcement order with the office
5of the county recorder of the county in which the property
6associated with the violation is located.
7(5) Initiate a civil action in the name of the state for mandamus,
8injunction, civil penalties, or other appropriate remedy authorized
10(6) Order any other actions or conditions as the board may
11determine are necessary to resolve the violation and ensure
12compliance with this part.
13(d) The enforcement order shall state any necessary findings
14and shall be served immediately pursuant to Section 8703.
15(e) A person or public agency against which the board has issued
16an enforcement order may seek judicial review of the enforcement
17order pursuant to Section 8579. The enforcement order shall be
18deemed effective upon issuance.
19(f) If the board orders removal, modification, abatement, or
20restoration pursuant to this part, the board, its contractor, or its
21designee may conduct the work, the costs of which shall be
22collected from the responsible person or public agency by whatever
23legal remedy is available, including, but not limited to, the
24placement of a lien on the property owned by the person or public
25agency responsible for the violation pursuant to Section 8704.2.
26Removal, modification, abatement, or restoration actions shall not
27be taken by the board until after the time for judicial review has
29(g) If the board orders the enforcement order to be recorded
30with the office of the county recorder, the executive officer shall
31issue a certificate of abatement to the person or public agency
32against whose property the enforcement order was recorded when
33the enforcement action has been fully resolved, including the
34payment of any costs and penalties. The person or public agency
35may, at the owner’s expense, record the certificate with the office
36of the county recorder.
37(h) 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.
(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
begin delete aend delete threat to the
6structural integrity of the levee, channel, flood control work, or
7other facility of the State Plan of Flood Control.
8(2) The encroachment impairs the functional
9capability of the levee, channel, flood control work, or other facility
10of the State Plan of Flood Control to fulfill its particular intended
11role in the overall 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
16(b) Routine maintenance by the board, the executive officer,
17the department, or local agencies that operate and maintain facilities
18and works on behalf of the board that includes the removal or
19modification of abandoned property, fences, gates, and vegetation
20on a levee or other flood control structure shall not be subject to
22(c) The removal or modification of previously permitted
23encroachments shall not be subject to administrative or civil
24penalties pursuant to Section 8704 or 8704.1.
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.
Notice and service required by this article shall be
33provided to the person or public agency believed to be responsible
34for the violation and the owner of the property on which the
35violation occurred or is threatened to occur by one of the following
37(a) Hand delivery.
38(b) Certified mail.
P9 1(c) If the person or agency cannot be reached or reasonably
2notified pursuant to subdivision (a) or (b), by placing a copy of
3the notice or order on the encroachment or property.
(a) Civil penalties may be imposed by a court of
5competent jurisdiction against any person or public agency that
6undertakes an activity, flood system improvement, or encroachment
7that is in violation of this part or that is inconsistent with any
8permit, cease and desist order, or enforcement order previously
9issued by the board or executive officer in an amount not less than
10five hundred dollars ($500) and not greater than thirty thousand
12(b) In addition to any other penalties, civil penalties may be
13imposed by a court of competent jurisdiction against any person
14or public agency that intentionally and knowingly undertakes an
15activity, flood system improvement, or encroachment that is in
16violation of this part or that is inconsistent with any permit, cease
17and desist order, or enforcement order previously issued by the
18board or executive officer in an amount that shall not be less than
19one thousand dollars ($1,000) or more than fifteen thousand dollars
20($15,000) per day for each day in which the violation persists.
21(c) In determining the amount of liability pursuant to
22subdivisions (a) and (b), the following factors shall be considered:
23(1) The nature, circumstance, extent, and gravity of the violation.
24(2) Whether the violation is susceptible to removal, modification,
25abatement, restoration, or other remedial measures.
26(3) Whether the function of the levee, channel, or other flood
27control work is affected by the violation.
28(4) The cost to the state of bringing the action.
29(5) With respect to the person or public agency responsible for
30the violation, any voluntary remedial measures undertaken, any
31prior history of violations, the degree of culpability, economic
32profits, if any, resulting from, or expected to result as a
33consequence of, the violation, and other matters deemed relevant.
34(d) Civil penalties may be imposed by a court of competent
35jurisdiction against any person or public agency that intentionally
36or negligently violates any cease and desist order issued, reissued,
37or amended by the board, or any enforcement order issued,
38reissued, or amended by the board in an amount that shall not
39exceed six thousand dollars ($6,000) for each day in which that
40violation persists. Any actual penalty imposed shall be reasonably
P10 1proportionate to the damage suffered as a consequence of the
(a) Administrative penalties may be imposed by the
4board in the same manner as civil penalties described in Section
58704, upon an enforcement hearing and issuance of an enforcement
6order pursuant to Section 8701.4, but shall not be less than five
7hundred dollars ($500) or exceed fifty thousand dollars ($50,000)
8for a single violation.
9(b) In imposing penalties, the board shall express its rationale
10for the amount and specifically address the factors listed under
11subdivision (c) of Section 8704.
12(c) Any penalties imposed shall be paid within 60 days.
person or public agency shall not be subject to both civil
14and administrative penalties for the same violation.
15(e) After the time for judicial review pursuant to Section 8579
16has passed, the board may apply to the clerk of the appropriate
17court in the county in which the administrative penalties were
18imposed for a judgment to collect the penalties assessed. The
19application, which shall include a certified copy of the board action,
20constitutes a sufficient showing to warrant issuance of the
21judgment. The clerk shall enter judgment immediately in
22conformity with the application. The judgment so entered has the
23same force and effect, and is subject to all the provisions of law
24relating to, a judgment in a civil action and may be enforced in the
25same manner as any other judgment of the court in which it is
(a) Pursuant to subdivision (f) of Section 8701.4, the
28board or the board’s designee shall have the authority to record a
29lien with the county clerk in the county of this state where the
30person’s or agency’s property responsible for the violation is
31located, to recover any and all of the following:
32(1) Costs incurred in abating, removing, and restoring a
33violation, including, but not limited to, costs incurred in seeking
34modification, removal, abatement, or restoration pursuant to this
36(2) Costs incurred in the summary abatement of emergencies.
37(3) Attorney’s fees associated with actions to enforce this part.
38(b) A lien recorded pursuant to this section shall have the same
39force, effect, and priority as a judgment lien.
P11 1(c) Before recording a lien, the board shall provide notice and
2an opportunity for a hearing to contest the amount of the lien.
3(1) Notice shall be provided at least 20 days before the hearing
4pursuant to Section 8703.
5(2) The hearing required by this section may be satisfied by an
6enforcement order hearing pursuant to Section 8701.4 or, in the
7summary abatement of emergencies, a hearing pursuant to Section
The remedies provided by this article are not exclusive
10of, but shall be concurrent with and in addition to, any other
11remedy, penalty, or sanction that may exist by law, civil or
12criminal. The board may enforce compliance with the provisions
13of this article by mandamus, mandatory injunction, or by any other
14appropriate remedy authorized by law. The action or proceeding
15may be commenced and maintained by the board in the name of
The Flood Risk Management Fund is hereby established
18in the State Treasury. All funds received from penalties pursuant
19to this article shall be paid into the fund. Upon appropriation by
20the Legislature, the moneys in the fund shall be expended by the
21board to carry out enforcement pursuant to this part, including the
22costs of the modification, removal, abatement, or restoration of
23violations and related litigation.
The board may maintain actions in the name of the state
25to compel by injunction the owner or owners of any bridge, trestle,
26wire line, viaduct, embankment, or other structure or obstruction
27that shall be intersected, traversed, or crossed by any bypass,
28drainage canal, channel, or overflow channel to construct or alter
29any structure in order to offer a minimum of obstruction to the free
30flow of water. In the case of existing works, the board may compel
31the removal or alteration of structures or obstructions that impede
32the free flow of water.
Any activity that does or may interfere with, obstruct
34the performance, maintenance, or operation of, or otherwise
35adversely affect facilities of the State Plan of Flood Control,
36designated floodways, or streams that are regulated by the board
37constitutes a public nuisance, and the board may commence and
38maintain a suit in the name of the people of the state for the
39prevention or abatement of that nuisance.
If the board or Attorney General prevails in a civil action
2to enforce this part, or if a local agency prevails in a civil action
3to seek abatement costs under subdivision (c) of Section 8708 or
4modification, removal, abatement, or restoration costs as the
5board’s designee under subdivision (f) of Section 8701.4, the board,
6Attorney General, or local agency 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, channel, floodway, stream bank, or
13flood control feature, or other emergency action necessary to
14protect the public welfare.
15(b) To the extent emergency action is required that involves the
16removal, modification, or abatement of an encroachment, flood
17system improvement, or activity maintained by an individual or
18public agency, the individual or public agency may request a
19hearing before the board within 30 days after the action has been
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
begin delete and necessary for the immediate the public peace,
31preservation ofend delete
begin delete health andend delete
safety, or general
Section 8732 of the Water Code is amended to read:
The board may hold a hearing or partial hearing before
36a committee of one or more members of the board, before a
37qualified neutral hearing officer designated by the board president,
P13 1or before the executive officer or chief engineer of the board, at
2any place within the state.