BILL ANALYSIS                                                                                                                                                                                                    



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          SENATE THIRD READING
          SB 753 (Steinberg)
          As Amended  August 6, 2013
          Majority vote 

           SENATE VOTE  :29-9  
          
           WATER, PARKS & WILDLIFE     10-4APPROPRIATIONS      12-5        
           
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          |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.









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          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.









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           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  








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          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)  








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          319-2096 


                                                                FN: 0001686