BILL ANALYSIS Ó SB 753 Page 1 SENATE THIRD READING SB 753 (Steinberg) As Amended August 6, 2013 Majority vote SENATE VOTE :29-9 WATER, PARKS & WILDLIFE 10-4APPROPRIATIONS 12-5 ----------------------------------------------------------------- |Ayes:|Rendon, Bocanegra, Fong, |Ayes:|Gatto, Bocanegra, | | |Frazier, Gatto, Gomez, | |Bradford, | | |Gonzalez, Gray, Yamada, | |Ian Calderon, Campos, | | |Williams | |Eggman, Gomez, Hall, | | | | |Holden, Pan, Quirk, Weber | |-----+--------------------------+-----+--------------------------| |Nays:|Allen, Dahle, Beth |Nays:|Harkey, Bigelow, | | |Gaines, Patterson | |Donnelly, Linder, Wagner | | | | | | ----------------------------------------------------------------- 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 which are 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. SB 753 Page 2 4)Allows the Board to issue a cease and desist order without first issuing a notice of violation if the issuance of the notice would be futile, result in unreasonable delay, or be unlikely to provoke a timely response. 5)Allows an enforcement order to require the removal, modification, or abatement of an encroachment, including a previously permitted encroachment, a flood system improvement, or activity causing a violation and require restoration of the site. 6)Retains language specifying the Board may require removal or modification of a previously permitted encroachment if it poses an imminent threat to, or significantly impairs the function of, the flood control system. Specifies that previously permitted encroachments are not subject to administrative or civil penalties and standards for just compensation under the state and federal constitutions are unaffected by the provisions of this statute. 7)Allows a person or entity against which the Board has issued an enforcement order to seek judicial review of the enforcement order. 8)Retains current provisions allowing a court of competent jurisdiction to impose civil penalties between $500 and $30,000 per violation and, in addition, to impose between $1,000 and $15,000 per day for intentional and knowing violations. 9)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. 10)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. 11)Provides the Board with authority to adopt emergency regulations necessary to implement the provisions of this bill. SB 753 Page 3 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 Assembly Appropriations Committee, increased General Fund costs likely in the $75,000 to $150,000 range for the preparation of emergency regulations, potentially offset by litigation and enforcement savings. 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. State liability for protecting and maintaining the levee and flood system was gravely increased by the landmark decision Paterno v. State of California. Following flooding in 1986, a levee near the town of Linda gave way 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, the Third SB 753 Page 4 District Court of Appeal held the state liable for playing a role in operating and maintaining the system. According to the author the state risks incurring Paterno-type liability if it cannot prevent and remove illegal encroachments efficiently and effectively. The author adds that the Board has hundreds of unresolved encroachment problems yet the current administrative framework lacks teeth, often leaving the Board resorting to time consuming litigation that is very costly to the general fund. The Attorney General's Office estimates that one current enforcement action 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 advises that since the Board is not authorized under law to receive attorney fees the state may not recoup any of that money. Meanwhile, the lawsuit may take years to resolve during which time the obstruction will remain in place. Other supporters state that this bill's much-needed new authority will act as a deterrent and encourage voluntary removal at the beginning of encroachment projects, while still ensuring appropriate due process for landowners. Supporters add that federal law threatens the state with the loss of federal financial assistance for levee failures if the state cannot meet federal standards for levee integrity. Landowners with previously permitted homes on levees expressed concerns that they could now be found out of compliance with encroachment laws. They state that this bill could force them to live under a confusing cloud of uncertainty because their legitimately obtained encroachment permits could be revoked at any moment and require them to tear down their homes at their own cost. Those landowners also expressed fears that, although the Board has existing eminent domain authority, this bill would allow the Board not to pay compensation. Amendments were taken in the Assembly Water, Parks and Wildlife Committee to, among other provisions, clarify that even though the Board has authority under existing law to require the removal of previously permitted encroachments, the standards governing whether or not just compensation would be required under the state and federal constitutions are unaffected by the provisions of this bill. Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916) SB 753 Page 5 319-2096 FN: 0001686