BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 753
                                                                  Page  1

          Date of Hearing:   July 2, 2013

                   ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
                                Anthony Rendon, Chair
                   SB 753 (Steinberg) - As Amended:  June 24, 2013

           SENATE VOTE  :   29-9
           
          SUBJECT  :   Central Valley Flood Protection Board: enforcement

           SUMMARY  :   Provides the Central Valley Flood Protection Board  
          (Board) with new and clarified authorities for addressing  
          unauthorized and nonconforming structures built in or on levees  
          or other areas of the flood control system under the  
          jurisdiction of the Board.  Specifically,  this bill  :

          1)Repeals the article "Encroachments on Flood Control Works,"  
            deletes obsolete provisions, and revises and reorganizes  
            enforcement authorities under a new article entitled  
            "Enforcement of Unauthorized Activities and Encroachments."

          2)Provides the Board with an administrative process for  
            enforcement actions to address the prevention and removal of  
            unauthorized and nonconforming structures and other activities  
            (encroachments) that could interfere with the safe operation  
            of the flood system.  Makes this administrative process in  
            addition to, and in lieu of, resorting to the courts.

          3)Creates a progressive three-step enforcement process for  
            violations, if not corrected.  A notice of violation is  
            followed by a cease and desist order and, finally, an  
            enforcement hearing is held to consider the issuance of an  
            enforcement order.

          4)Allows an enforcement order to require the removal,  
            modification, or abatement of an encroachment, flood system  
            improvement, or activity causing a violation and require  
            restoration of the site.

          5)Allows a person or entity against which the Board has issued  
            an enforcement order to seek judicial review of the  
            enforcement order.

          6)Retains current provisions allowing a court of competent  
            jurisdiction to impose civil penalties between $500 and  








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            $30,000 per violation and, in addition, to impose between  
            $1,000 and $15,000 per day for intentional and knowing  
            violations.  

          7)Adds additional authorities allowing the Board, after an  
            enforcement hearing and issuance of an enforcement order, to  
            impose administrative penalties of between $500 and $30,000  
            per violation in the same manner that a court can impose civil  
            penalties.  

          8)Enables the Board, if it must seek a civil action, to recover  
            its costs for removing an encroachment as well as attorney's  
            fees and costs for bringing litigation.

          9)Provides the Board with authority to adopt emergency  
            regulations necessary to implement the provisions of this  
            bill.

           EXISTING LAW  :

          1)Provides the Board authority for the protection and oversight  
            of levees, weirs, channels, and other features of federally  
            and state-authorized flood control facilities located in the  
            Sacramento River and San Joaquin River drainage basins.  

          2)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.

          3)Authorizes the Board 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.

          4)Allows the Board to seek a court action to enforce compliance.

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









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           COMMENTS  :   The purpose of this bill is to provide the Board  
          with the authority to take enforcement actions to prevent or  
          remove illegal encroachments, which are structures and  
          activities on, or affecting, state property rights and the safe  
          operation of the flood system.  This bill would allow  
          enforcement actions through an administrative hearing process  
          instead of the Board being limited to potentially costly and  
          time-consuming court actions.
           
          The standard of care applicable to the State for the protection  
          and maintenance of the levee and flood system was gravely  
          increased by the landmark decision  Paterno v. State of  
          California  .  In February 1986, one of the greatest storms on  
          record in California occurred leading to major rains and  
          flooding raging throughout the State for more than a week.  In  
          Northern California, the Yuba River crested near the town of  
          Linda just upstream of Marysville and Yuba City reaching 76 feet  
          at a point where the maximum levee capacity was 80 feet.   
          However, while the waters were receding, the Linda levee began  
          to boil and then give way, eventually flooding hundreds of homes  
          and a shopping center in the City of Linda.  Many of those  
          affected sued the State for failing to maintain the levee.  

          Although the courts found the levee failure was originally due  
          to poor design and construction by Yuba County, in the end it  
          did not matter.  In  Paterno  , the Third District Court of Appeal  
          held the state liable for playing a role in operating and  
          maintaining the system stating that "[w]hen a public entity  
          operates a flood control system built by someone else, it  
          accepts liability as if it had planned and built the system  
          itself."

           Supporting arguments  :  The author is worried about the State  
          incurring Paterno-type liability if it cannot prevent and remove  
          illegal encroachments efficiently and effectively.  According to  
          the author, the "board has hundreds of unresolved encroachment  
          problems. The current administrative framework lacks teeth and  
          the board must often resort to expensive and time consuming  
          litigation to obtain resolution" which is "very costly to the  
          general fund."  The Attorney General's Office estimates that  
          enforcing just one current case where a landowner was told  
          multiple times to cease and desist may cost "$110,000 to  
          $150,000 if the case goes to trial.  The author adds that the,  
          "Board is not authorized under law to receive attorney fees, so  
          the state may not recoup any of the $110,000 to $150,000.  In  








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          addition, the lawsuit may take years to resolve, during which  
          time the obstruction will remain in place."  Other supporters  
          state that this bill provides the Board "much-needed new  
          authority to act as a deterrent and encourage voluntary removal  
          at the beginning of encroachment projects, while ensuring  
          appropriate due process for landowners."  Supporters add that  
          federal law threatens the State with "the loss of Federal  
          financial assistance in case of levee failures" if the State  
          cannot meet federal standards for levee integrity.
          
           Opposing arguments  :   Landowners with previously permitted homes  
          on levees are concerned they could now be found out of  
          compliance with encroachment laws and are concerned that this  
          bill could force them to "live under a confusing cloud of  
          uncertainty, that at any moment their legitimately obtained  
          encroachment permits could be revoked; thereby, requiring  
          homeowners to tear down their homes at their own cost."  Other  
          opponents fear that although the Board has "existing eminent  
          domain authority" this bill will allow the Board "not to pay  
          compensation."

           Suggested amendments :  Committee staff recommends that the  
          author consider two substantive amendments and a technical one.

          First, this bill contains a provision allowing the Board to  
          bypass the issuance of a notice of violation and move straight  
          to a cease and desist order "where it deems a notice of  
          violation would not be in the best interest of the state."   
          However, the "best interest of the state" is not an objective  
          standard.  Potentially affected parties could benefit from a  
          clearer articulation of the circumstances under which bypassing  
          the issuance of a notice of violation would be justified.

          Second, landowners are concerned that this bill may change the  
          standards applicable to whether or not homes with pre-existing  
          permits that are later found nonconforming could be removed and  
          whether compensation would be due.  The author's office states  
          that nothing in this bill is meant to change either of those  
          standards.  Therefore, the author may wish to consider an  
          amendment making an affirmative statement that nothing in the  
          bill is meant to change existing standards regarding the  
          circumstances under which a previously permitted home could be  
          removed and whether or not compensation would be due.

          Finally, the Administrative Procedures Act defines an emergency  








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          as "a situation that calls for immediate action to avoid serious  
          harm to the public peace, health, safety, or general welfare."   
          Committee staff recommends, as a technical fix, that this bill  
          conform to that definition when articulating the need for  
          emergency regulations.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           Central Valley Flood Protection Board (sponsor)
          Central Valley Flood Control Association

           Opposition 
           Garden Highway Community Association
          one individual

           Analysis Prepared by  :    Tina Cannon Leahy / W., P. & W. / (916)  
          319-2096