BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 753
                                                                  Page  1

          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  








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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  








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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