BILL ANALYSIS                                                                                                                                                                                                    





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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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