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 23, 2013
AUTHOR: Steinberg URGENCY: No
VERSION: April 18, 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
actions described in the notice of violation be completed
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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
enforcement order against a local public agency undertaking
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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.
The new article also makes a number of conforming and other
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technical changes.
In addition to the new article, the bill 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.
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. And finally, it eliminates awkward and
obsolete provisions and replaces with clear and direct language.
ARGUMENTS IN OPPOSITION: Both the California Central Valley
Flood Control Association (CCVFCA) and Farm Bureau believe that
the statutes regarding flood encroachments need revising badly.
They both also appreciate the recent amendments deleting the
provisions regarding permitting new encroachments and flood
facilities, and the fee provisions associated with those
permits. Those amendments moved CCVFCA to a "support if
amended" position, pending additional, largely clarifying
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amendments adopted by board on April 5, 2013. The Farm Bureau,
in addition to the balance of the April 5 amendments, is looking
for additional provisions regarding (1) establishing a more
informal 1st phase enforcement process, (2) more defined
structure for penalties and amounts, and (3) a "fair and
reasonable" process for removal of existing lawfully permitted
encroachments.
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
provisions of the code. It also 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.
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. The administrative law process
for adopting such regulations can take a significant amount of
time. In the 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 Amendment)
SUGGESTED AMENDMENT: 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: California Central Valley Flood Control Association (if
amended)
OPPOSITION: California Farm Bureau Federation (unless amended)
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