BILL ANALYSIS Ó
SB 753
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Date of Hearing: August 14, 2013
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
SB 753 (Steinberg) - As Amended: August 6, 2013
Policy Committee: Water, Parks and
Wildlife Vote: 10-4
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill provides the Central Valley Flood Protection Board
(Board) with new and clarified authority to address unauthorized
and nonconforming structures built on levees or other areas of
the flood control system. Specifically, this bill:
1)Establishes an administrative enforcement process to address
the prevention and removal of unauthorized and nonconforming
structures and encroachments that interfere with the safe
operation of the flood system.
2)Allows an enforcement order to require site restoration, the
removal, modification, or abatement of an encroachment, flood
system improvement, or activity causing a violation.
3)Allows a person or entity subject to an enforcement order to
seek judicial review. Provides that nothing in the bill shall
be construed to alter an individual's right to compensation
under existing state and federal law.
4)Authorizes the Board, after an enforcement hearing and
issuance of an enforcement order, to impose administrative
penalties between $500 and $30,000 per violation in the same
manner that a court imposes civil penalties. The Board may
recover its costs for removing an encroachment as well as
attorney's fees and litigation costs.
5)Authorizes the Board to adopt emergency regulations necessary
to implement the bill.
FISCAL EFFECT
SB 753
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Increased GF costs likely in the $75,000 to $150,000 range for
the preparation of emergency regulations, potentially offset by
litigation and enforcement savings.
COMMENTS
1)Purpose. Iif the state cannot prevent and remove illegal
encroachments efficiently and effectively, the state is
liable. This bill is intended to give the Board additional
ability to resolve hundreds of encroachment problems. The
current administrative framework lacks teeth and the board
must often resort to expensive and time consuming litigation.
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 Board is not authorized under law to
receive attorney fees, so the state will not recoup any of the
$110,000 to $150,000. Lawsuits may take years to resolve,
during which time the violation continues. According to the
Board, the state may lose federal financial assistance if
levees fail and the state has not met federal standards for
levee integrity.
According to the board, this bill would create a new
enforcement process that will substantially reduce the cost
and time required to resolve unpermitted encroachment on state
flood control facilities.
2)Background. Under the Central Valley Flood Protection Act,
the 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.
3)State Liability. State responsibility for the protection and
maintenance of the levee and
flood system was increased significantly 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 throughout the State. In
Northern California, hundreds of homes and a shopping center
SB 753
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were destroyed due to levy failure. 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, the Third
District Court of Appeal held the state liable for playing a
role in operating and maintaining the system. The court found
when 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.
4) Opposition. Landowners with previously permitted homes on
levees are concerned this bill creates uncertainty and they
may now be out of compliance with encroachment laws. Other
opponents raise concerns that despite the board's existing
eminent domain authority, this bill will allow the board not
to pay compensation. Amendments were taken in the Water,
Parks and Wildlife committee to clarify compensation rights
remain under existing state and federal law.
Analysis Prepared by : Jennifer Galehouse / APPR. / (916)
319-2081