BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair


          SB 753 (Steinberg) - Central Valley Flood Protection Board.
          
          Amended: April 29, 2013         Policy Vote: NR&W 7-1
          Urgency: No                     Mandate: No
          Hearing Date: May 23, 2013      Consultant: Marie Liu
          
          SUSPENSE FILE. AS PROPOSED TO BE AMENDED.

          Bill Summary: SB 753 would establish an enforcement process for  
          the Central Valley Flood Protection Board (board), the  
          Department of Water Resources, and local agencies for  
          unauthorized activities and encroachments that interfere with  
          flood control facilities.

          Fiscal Impact: 
              Likely costs of $75,000 to $150,000 from the General Fund  
              to prepare emergency regulations for the new enforcement  
              procedures.

          Background: Under the Central Valley Flood Protection Act (act),  
          the Central Valley Flood Protection Board (board) is responsible  
          for protection and oversight of flood facilities located in the  
          Sacramento River and San Joaquin River draining basin. The act  
          requires plans that involve the construction or alteration of  
          any levee, embankment, or canal along or near the banks of the  
          Sacramento or San Joaquin Rivers to be approved by the board  
          before such activity is commenced. 

          The board has the authority to issue an order directing a person  
          to cease and desist from undertaking an activity that may  
          encroach on levees, channels, or other flood control works under  
          the jurisdiction of the board. The cease and desist order may  
          only be issued if the person has failed to respond  
          satisfactorily to a prescribed notice. The board may remove a  
          violation but cannot recover removal costs without court action.  
          Civil penalties between $500 and $30,000 may be imposed by the  
          superior court.

          Proposed Law: This bill would delete the existing notice and  
          cease and desist order process to address encroachments and  
          would instead establish a three-step enforcement process  
          consisting of (1) notice of violation, (2) cease and desist  








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          orders, (3) enforcement orders. The board would be authorized  
          under the enforcement order to order the removal and restoration  
          of the encroachment. 

          This bill would also authorize civil or administrative penalties  
          for violations of the act. Civil penalties would be up to  
          $15,000 per day and administrative penalties would be between  
          $500 and $50,000 upon issuance of an enforcement order. All  
          penalties would be deposited in to the Flood Risk Management  
          Fund, created by this bill, and may be appropriated by the  
          Legislature to fund the board's enforcement activities.

          This bill would allow the board to recover costs from removing  
          and restoring a violation, civil or administrative penalties,  
          and attorney's fees. These costs may be recovered through a lien  
          against the property of the person responsible for the  
          violation. 

          This bill would also amend the act so that any aggrieved person  
          has the right to judicial review of any decision or action of  
          the board by filing a petition for a writ of mandate.

          Staff Comments: The following is enforcement activity  
          information for the past two year and the current year to date  
          provided by the board: 
          
          
           ---------------------------------------------------------- 
          |                           |  2011   |  2012   | 2013 (to |
          |                           |         |         |  date)   |
          |---------------------------+---------+---------+----------|
          |Encroachments Entered into |      160|       43|       432|
          |Data Base                  |         |         |          |
          |---------------------------+---------+---------+----------|
          |Fact Finding Letters Sent  |        5|       17|         6|
          |---------------------------+---------+---------+----------|
          |Notice of Violation Sent   |      113|        7|        10|
          |---------------------------+---------+---------+----------|
          |Cease & Desist Notice Sent |        0|        1|         1|
          |---------------------------+---------+---------+----------|
          |Board Hearing Held         |       58|       62|         1|
          |---------------------------+---------+---------+----------|
          |Compliance Letters Issued  |        1|        2|         4|
          |---------------------------+---------+---------+----------|








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          |Encroachments Closed       |       81|       13|21        |
           ---------------------------------------------------------- 
          
          According to the board, this bill would create a new enforcement  
          process that would substantially reduce the cost and time  
          required to resolve unpermitted encroachment on state flood  
          control facilities. Specifically, the board notes that this bill  
          would allow local levee districts to assist with the initial  
          notice of violations (which may increase the likelihood of  
          landowner cooperation), allow violations to be removed at the  
          landowner's cost, allow the board to assess administrative  
          penalties, encourage voluntary compliance by giving the board  
          more enforcement powers and penalties, and allow the board to  
          recover attorney's fees should a violation require court action  
          for resolution. While this bill would make enforcement actions  
          less costly, staff does not anticipate any savings because the  
          board hopes to increase enforcement activity in order to  
          increase the enrollment of levees in a federal program (PL  
          84-99) that provides federal funding for repair work in the  
          event of a flood. Levees with maintenance and encroachment  
          problems are removed from the federal program.

          The passage of this bill would require the adoption of emergency  
          regulations to implement the new enforcement process. As much of  
          the process is outlined in the bill and the board is currently  
          undergoing a regulation update, staff believes the regulations  
          should be relatively uncomplicated and estimates that the cost  
          of developing regulations is likely between $75,000 and  
          $150,000.

          The penalties assessed for violations of this bill would be  
          placed in the Flood Risk Management Fund in the State Treasury.  
          Upon appropriation by the Legislature, moneys in the fund would  
          be available to the board to carry out enforcement actions.
          Staff notes that allowing program implementation to be paid for  
          by fines and penalties can be a perverse incentive, or create  
          the illusion of a perverse incentive, for the board to be overly  
          aggressive in enforcing these provisions. However, requiring the  
          Legislature to appropriate these monies does create some  
          separation between penalty revenues and enforcement program  
          funding.

          Proposed Author Amendments: Technical and clarifying amendments.









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