BILL ANALYSIS                                                                                                                                                                                                    Ó


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                                    THIRD READING

          Bill No:  SB 753
          Author:   Steinberg (D), et al.
          Amended:  5/24/13
          Vote:     21

          AYES:  Pavley, Evans, Hueso, Jackson, Lara, Monning, Wolk
          NOES:  Fuller
          NO VOTE RECORDED:  Cannella

           SENATE APPROPRIATIONS COMMITTEE  :  5-2, 5/23/13
          AYES:  De León, Hill, Lara, Padilla, Steinberg
          NOES:  Walters, Gaines

           SUBJECT  :    Central Valley Flood Protection Board

           SOURCE  :     Author

           DIGEST  :    This bill establishes an enforcement process for the  
          Central Valley Flood Protection Board (Board), the Department of  
          Water Resources (Department), and local agencies for  
          unauthorized activities and encroachments that interfere with  
          flood control facilities.

           ANALYSIS  :    

          Existing law:

          1.Provides the Board with the authority to construct and  
            maintain various flood control works.


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          2.Authorizes the Board to hold a hearing or partial hearing  
            before a committee of one or more members of the Board, or  
            before the general manager or chief engineer of the Board, at  
            any place within the state.

          This bill:

          1.Deletes the existing provisions governing "Encroachments on  
            Flood Control Works" and establishes a new article titled  
            "Enforcement of Unauthorized Activities and Encroachments."

          2.Establishes under the new article a three step process of  
            addressing unauthorized activities and encroachments, as  

             A.   Authorizes the Board, the executive officer, the  
               Department, or certain local agencies to issue a notice of  
               violation, as specified, if it is determined that any  
               person or public agency has undertaken, is threatening to  
               undertake, or maintains any encroachment, flood system,  
               improvement, or activity in violation of certain  

             B.   Authorizes the Board or executive officer to issue an  
               order directing that person or public agency to cease and  
               desist, as specified, if the board or executive officer  
               determines that any person or public agency has failed to  
               adequately respond to a notice of violation.

             C.   Requires that if the Board determines that any person or  
               public agency has failed to correct a violation as required  
               in a cease and desist order, the Board shall hold an  
               enforcement hearing and may, at the conclusion of the  
               hearing, issue an enforcement order, as prescribed.

          1.Establishes penalties for violations of the ACT, as follows:

             A.   Civil penalties in an amount not less than $500 and not  
               greater than $30,000 for an activity, flood system  
               improvement or encroachment that is in violation of the Act  
               or that is inconsistent with any permit or cease and desist  
               order previously issued by the Board or executive officer.



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             B.   Civil penalties in an amount not less than $1,000 or  
               more than $15,000 per day for each day in which the  
               encroachment persists, may be imposed by a court of  
               competent jurisdiction against any person or public agency  
               that intentionally and knowingly undertakes an activity,  
               flood system improvement, or encroachment that is in  
               violation of this part or that is inconsistent with any  
               permit or cease and desist order previously issued by the  
               Board or executive officer.

          1.Establishes under the new article notification provisions, as  

          2.Requires the Board to adopt emergency regulations necessary to  
            implement these provisions.

          Under the Act, the 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 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  

          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  



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          immediately by certified mail upon the person or agency subject  
          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 "when a public entity operates a flood  
          control system built by someone else, it accepts liability as if  
          had planned and built the system itself."

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

          According to the Senate Appropriations Committee, likely costs  
          of $75,000 to $150,000 from the General Fund to prepare  
          emergency regulations for the new enforcement procedures.

           SUPPORT  :   (Verified  5/24/13)

          California Central Valley Flood Control Association

           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  

          "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  



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          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  

          RM:ej  5/25/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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