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
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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 |
| | | | |
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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.
SB 753
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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)
SB 753
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319-2096
FN: 0001686