BILL ANALYSIS Ó
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THIRD READING
Bill No: SB 753
Author: Steinberg (D), et al.
Amended: 5/24/13
Vote: 21
SENATE NATURAL RESOURCES AND WATER COMMITTEE : 7-1, 4/23/13
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
follows:
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
provisions.
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
specified.
2.Requires the Board to adopt emergency regulations necessary to
implement these provisions.
Background
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
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
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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
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
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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
language."
RM:ej 5/25/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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