BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, 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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