BILL ANALYSIS Ó
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2013-2014 Regular Session |
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BILL NO: SB 753 HEARING DATE: April 9, 2013
AUTHOR: Steinberg URGENCY: No
VERSION: April 1, 2013 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Central Valley Flood Protection Board: encroachments.
BACKGROUND AND EXISTING LAW
Under the Central Valley Flood Protection Act (Act), the Central
Valley Flood Protection Board (board) is responsible for
protection and oversight of facilities of the state plan of
flood control. These are the levees, weirs, channels, and other
features of the federally and state-authorized flood control
facilities located in the Sacramento River and San Joaquin River
drainage basin for which the board or the Department of Water
Resources (DWR) has given the assurances of nonfederal
cooperation to the United States required for the project.
These are sometimes referred to as "project" levees or flood
facilities.
The Act requires plans that involve the construction,
enlargement, 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 such activity
is commenced.
The Act grants the board 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. The Act 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. Cease and desist orders are
effective upon its issuance and copies are required to be served
immediately by certified mail upon the person or agency subject
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to the order.
In 2003, the Court of Appeals held in Paterno v. State of
California that the state could be held liable, under a theory
of inverse condemnation, for property damages caused by the
failure of a state project levee. Although the state played no
role in the design or construction of the failed levee, the
Paterno court held that "[w]hen a public entity operates a flood
control system built by someone else, it accepts liability as if
had planned and built the system itself."
PROPOSED LAW
This bill would delete the existing provisions governing
"Encroachments on Flood Control Works" and would establish a new
article titled "Enforcement of Unauthorized Activities and
Encroachments."
The new article establishes a three step process of addressing
unauthorized activities and encroachments, as follows.
1.Notices of violation
Authorizes the board, executive officer of the board, or
DWR to issue a notice of violation if the board, executive
officer, or DWR determines that there is an improper
encroachment, improvement, or other violation of the Act.
Authorizes, but does not require, the board to delegate
to a local agency that operates and maintains facilities
within the board's jurisdiction the authority to issue a
notice of violation. Does not require the local agency to
accept the delegation of authority.
Requires the notice of violation to include information
regarding the nature of the violation, the corrective
actions that must be taken, consequences for failing to
act, and who to contract for further information.
Requires the notice of violation be served as described
below, requires a copy to be transmitted to the executive
officer within five business days of its issuance and
authorizes the board or the executive officer to amend the
notice of violation.
1.Cease and desist orders
Authorizes the board or executive officer to issue a
cease and desist order if the board or executive officer
determines that any person or public agency has failed to
adequately respond to a notice of violation.
Requires the cease and desist order to include a copy of
the notice of violation, a requirement that the corrective
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actions described in the notice of violation be completed
within a specified time period, and that failure to comply
will subject the violator to an enforcement order.
Establishes that cease and desist orders are effective
upon issuance and requires them to be served immediately as
described below.
Requires cease and desist orders to allow the person or
agency subject to the order to request a hearing before the
board within 30 days of being served with the order, and
proscribes the process for conducting hearings. At the
conclusion of the hearing, the board may affirm, amend, or
rescind the cease and desist order.
If a person or public agency subject to a cease and
desist order fails to comply with the order and does not
request a hearing, the cease and desist order shall be
recorded with the appropriate county recorder's office by
the board against the person or public agency's property
associated with the order.
1.Enforcement orders
Authorizes the board to issue an enforcement order if
the board determines that any person or public agency has
failed to correct a violation as required in a cease and
desist order.
Authorizes the enforcement order to do the following:
o Order the removal and restoration of the
encroachment, improvement, or activity causing the
violation, the costs of which shall be collected from the
responsible party.
o Assess and require the payment of administrative
penalties described below.
o Order the initiation of a civil action by the board
in the name of the state for mandamus, injunction, or
other appropriate remedy authorized by law.
o Order any other actions or conditions the board may
determine are necessary to avoid a potential adverse
impact to public safety or to ensure compliance with the
law.
Requires the enforcement order to be served immediately
as described below.
Authorizes a person or public agency against which the
board has issued an enforcement order to seek judicial
review of the enforcement. The enforcement order shall be
deemed effective upon issuance, but no removal actions may
be taken by the board until after the time for judicial
review has passed.
These provisions do not authorize the issuance of an
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enforcement order against a local public agency undertaking
any lawful activity pursuant to a declaration of emergency
by the governing body of the local public agency or the
board of supervisors of the county in which the activity is
being or may be undertaken.
The new article establishes penalties for violations of the
Central Valley Flood Protection Act, as follows:
Civil penalties of up to $15,000 per day for each day in which
the violation occurs or persists for an activity, improvement,
or encroachment that is in violation of the Central Valley
Flood Protection Act or that is inconsistent with any permit
or cease and desist order previously issued by the board or
executive officer.
Administrative penalties of not less than $500 or more than
$50,000 upon issuance of an enforcement order.
The amount of the penalties are to be determined based on
factors such as the extent, and gravity of the violation,
whether the violation was committed intentionally or
knowingly, and whether the violation is susceptible to
restoration or other remedial measures.
After the time for judicial review has passed, the board may
apply to the clerk of the appropriate court in the county in
which the administrative penalties were imposed for a judgment
to collect the penalties assessed. The judgment so entered has
the same force and effect, and is subject to all the
provisions of law relating to, a judgment in a civil action
and may be enforced in the same manner as any other judgment
of the court in which it is entered.
After the time for judicial review has passed, the board may
also recover assessed penalties through a lien against the
property of the person or agency responsible for the
violation.
The new article establishes notification provisions. Notice and
service required by this article are required to be provided to
the person or public agency believed to be responsible for the
violation and the owner of the property on which the violation
occurred or is threatened to occur by one of the following
means:
Hand delivery.
Certified mail.
If the person or agency cannot be reached or reasonably
notified via the first two methods, notice may be made by
placing a copy of the notice or order on the encroachment or
property.
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The new article also makes a number of conforming and other
technical changes.
In addition to the new article, the bill adds the following
provisions to the Central Valley Flood Protection Act:
Establishes the right of any aggrieved person to judicial
review of any decision or action of the board, or the
executive officer acting pursuant to delegated authority, by
filing a petition for a writ of mandate in accordance with
Section 1094.5 of the Code of Civil Procedure, within 60 days
after the decision or action has become final.
Establishes a process for obtaining an encroachment permit
from the board. Requires the board, as a condition of
obtaining the permit, to collect either a reasonable fee or
the actual, reasonable costs of the board and the DWR to
review and process the application. Prohibits the placement of
an encroachment on lands or facilities under the jurisdiction
of the board without obtaining an encroachment permit from the
board.
Establishes a process for obtaining flood facility improvement
permit from the board. Requires the board, as a condition of
obtaining the permit, to collect either a reasonable fee or
the actual, reasonable costs of the board and the DWR to
review and process the application. Prohibits the construction
of any flood facility or flood facility improvement on lands
or facilities under the jurisdiction of the board without
obtaining a flood facility improvement permit from the board.
Requires the board, before establishing the fees for
encroachment or flood facility improvement permits, to conduct
a study to consider whether, and for what services, filing
fees should be charged by the board. The board would be
required to provide the results of the study to the relevant
Senate and Assembly policy and fiscal committees. In
conducting the study, the board is to consider the following:
The actual cost to the board of processing an
application.
Whether charging the actual cost would encourage
applicants to bypass the filing system and instead install
illegal encroachments.
Whether the work to be performed is an improvement to
the State Plan of Flood Control and inures to the benefit
of the state.
Whether different filing fees might be appropriate for
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different classes of applications.
Requires any moneys collected from the filing be deposited in
the newly created Central Valley Flood Protection Board Permit
Fund. Moneys in the fund shall be available upon appropriation
by the Legislature for review and processing applications for
encroachment and flood facility improvement permits.
ARGUMENTS IN SUPPORT
According to the author, "Current law for addressing illegal
levee encroachments is simply unworkable. The Flood Board can't
do anything without formally notifying the party responsible for
the encroachment, and if we can't identify and find the
responsible party, we're done. If we do manage to find and
notify the responsible party, the Flood Board's only recourse is
to ask the Attorney General to sue them."
"In the meantime, our levees remain compromised, threating
public safety. In addition to the potential loss of life and
property, there is the potential for state liability under
Paterno should a compromised levee fail. Also, there is the
potential for us to become ineligible for federal flood funds if
the enforcement programs aren't fixed. And finally, there is
the challenge of trying to get a Provisionally Accredited Levee
(PAL) when you have enforcement problems. Without a PAL, there's
the real possibility of increased FEMA rates. None of this is
good."
"SB 753 fixes all these problems. It provides reasonable
notification provisions, including what to do if the responsible
party can't be identified or reached. It provides for a clear
abatement process of notice of violation, cease and desist, and
finally enforcement orders, similar to what is done for building
code violations. It eliminates awkward and obsolete provisions
and replaces with clear and direct language. And finally, it
provides for fees sufficient to cover the flood board's costs
associated with permitting new encroachments and flood
facilities to ensure the flood board has sufficient resources to
properly evaluate such discretionary actions."
ARGUMENTS IN OPPOSITION: None received
COMMENTS
Article governing encroachments needs updating . In addition to
providing new, clearer, and more direct authorities to the board
to address encroachments, this bill reorganizes existing
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provisions of the code. As important, it eliminates archaic and
arcane provisions of the code; provisions governing such issues
as maintenance of draws on bypass and overflow channels, opening
of draws, and fences designed to give way during high water
events. Such provisions are never used and their presence
obscures the other important provisions of the law.
Fees to recover the cost of processing permits. This bill
provides the board fee authority for two types of permits,
encroachment permits and flood facility improvement permits.
Encroachment permits are for those who want to place things on,
under, or through flood facilities for non-flood related
purposes. Encroachments include everything from home owners
wanting to put a fence on a levee to drinking water intake or
wastewater discharge facilities. Flood facility improvement
permits are for projects intending to reduce flood risk.
Typical projects include widening levees, installing slurry
walls in levees to prevent underseepage, etc.
While the motives behind the two types of permits might be
different, the question before the board is the same: "Does the
proposed action in any way diminish the integrity of the
existing management flood system, either in whole or in part?"
The issues associated with evaluating an encroachment permit are
unusually fairly straight forward - does the proposed
encroachment reduce the performance of the flood facility,
increase the necessary level of maintenance, impair the ability
to monitor performance of the facility during a flood event, or
respond to any sort of potential failure during a flood fight.
The issues associated with evaluating a flood facility
improvement permit are often much more complex. Not only must
the board and DWR determine whether the project would in fact
reduce flood risk for the project proponent, but the board and
DWR must also evaluate whether or not the proposed flood
facility improvement would increase flood risks to anyone beyond
the project boundaries. Failing to do so could increase the
state's liability under the Paterno decision. For example, some
projects would change the capacity or flow of the system. This
can increase flood risks upstream or downstream of the project.
So while the intent of the flood improvement is to reduce flood
risk for the applicant, it is the job of the board to ensure
that it not only reduces flood risk for the applicant, but also
does not increase flood risk to anyone else.
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Under current law, the costs for evaluating both these types of
permit applications are funded by the general fund. One could
argue that everyone in California is subsidizing the costs to
evaluate discretionary actions of others. It is similar
constructing an addition on a house and not paying anything for
a building permit; or a developer proposing a new subdivision
and not having to pay to ensure that the new development doesn't
impair the city's sewer system. By providing the board fee
authority for these two types of permits, this bill treats
applicants for these permits the same way local governments
treat applicants for permits that require local review and
approval.
Not a blank check. The bill directs the board to develop
"reasonable filing fee prescribed by the board pursuant to
regulation that covers but does not exceed the costs of the
board and the department to review and process the application
for the type of ? permit." Some might be concerned that this
gives the board carte blanche for determining fees. It does
not. The fees must cover but not exceed the cost of review and
processing permits. It could be that permits for different
types of encroachments or flood improvements may take different
levels of review, and so single fee may not be appropriate. If
that is the case, as the bill moves forward, the author might
consider amendments authorizing the board to establish a
schedule of fees for permits covering different types of
encroachments or flood improvements as well as some guidance as
to criteria the board should consider when establishing such a
schedule.
Study provisions are needless. The bill already directs the
board to develop "reasonable filing fee prescribed by the board
pursuant to regulation that covers but does not exceed the costs
of the board and the department to review and process the
application for the type of ? permit." What else is there to
study? The regulatory process provides ample opportunity for
interested or affected persons to opine on whether the fees are
in fact reasonable. As the bill already states that there will
be a reasonable filing fee, the board should simply go through
the regulatory process of developing the fees. (See Amendment
1)
Regulations will need updating. The board is going to have to
update a number of regulations governing notice of violations,
cease and desist orders, etc. and adopt new regulations
regarding fees. The administrative law process for adopting
such regulations can a significant amount of time. In the
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meantime, the board wouldn't be able to use the new authorities.
It might be desirable to give the board the authority to
promulgate new and update existing regulations as "emergency
regulations." This way, the draft regulations would be in
effect when they start the Office of Administrative Law approval
process, not at the end. (See Amendments 2 & 3)
SUGGESTED AMENDMENTS
AMENDMENT 1: On page 13, delete lines 24 through 40; on
page 14, delete lines 1 through 5; on page 14, line 6,
delete "(b)" and insert "8710.4 (a)"
AMENDMENT 2: On page 14, between lines 11 and 12, insert:
(b) The board shall adopt emergency regulations
necessary to implement Sections 8710.2 and 8710.3 in
accordance with Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code.
The adoption of emergency regulations shall be deemed to be
an emergency and necessary for the immediate preservation
of the public peace, health, and safety, or general
welfare.
AMENDMENT 3: On page 12, between lines 14 and 15, insert:
8709. The board shall adopt emergency regulations
necessary to implement this Article in accordance with
Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code. The adoption
of emergency regulations shall be deemed to be an emergency
and necessary for the immediate preservation of the public
peace, health, and safety, or general welfare.
SUPPORT: None Received
OPPOSITION: None Received
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