BILL ANALYSIS                                                                                                                                                                                                    Ó


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                                 UNFINISHED BUSINESS

          Bill No:  SB 753
          Author:   Steinberg (D), et al.
          Amended:  8/6/13
          Vote:     21

          AYES:  Pavley, Evans, Hueso, Jackson, Lara, Monning, Wolk
          NOES:  Fuller
          NO VOTE RECORDED:  Cannella

           SENATE APPROPRIATIONS COMMITTEE  :  5-2, 5/23/13
          AYES:  De León, Hill, Lara, Padilla, Steinberg
          NOES:  Walters, Gaines

           SENATE FLOOR  :  29-9, 5/29/13
          AYES:  Anderson, Beall, Block, Calderon, Corbett, Correa, De  
            León, DeSaulnier, Evans, Galgiani, Hancock, Hernandez, Hill,  
            Hueso, Jackson, Lara, Leno, Lieu, Liu, Monning, Padilla,  
            Pavley, Price, Roth, Steinberg, Torres, Wolk, Wright, Yee
          NOES:  Berryhill, Emmerson, Fuller, Gaines, Huff, Knight,  
            Nielsen, Walters, Wyland
          NO VOTE RECORDED:  Cannella, Vacancy

           SUBJECT  :    Central Valley Flood Protection Board

           SOURCE  :     Central Valley Flood Protection Board

           DIGEST  :    This bill provides the Central Valley Flood  
          Protection Board (Board), with new and clarified authorities for  
          addressing unauthorized and unforthcoming structures built in or  


                                                                     SB 753

          on levees or other areas of the flood control system which are  
          under the jurisdiction of the Board.
           Assembly Amendments  add provisions that:  (1) require the Board  
          or executive officer from issuing a cease and desist order  
          without first issuing a notice of violation; (2) authorize the  
          Board, at the conclusion of a hearing, to order the recording of  
          an enforcement order, as specified; (3) permit the executive  
          officer, if the Board authorizes the order, to issue a  
          certificate of abatement, as specified, including the payment of  
          any costs and penalties; (4) authorize the Board to modify or  
          revoke a permit for encroachment; and (5) make other clarifying  
          and technical changes.

           ANALYSIS  :    

          Existing law:

          1.Provides the Board with the authority to construct and  
            maintain various flood control works.

          2.Authorizes the Board to hold a hearing or partial hearing  
            before a committee of one or more members of the Board, or  
            before the general manager or chief engineer of the Board, at  
            any place within the state.

          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

          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  

          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  

          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  

          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  



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          Under the Act, the Board is responsible for protection and  
          oversight of facilities of the state plan of flood control.   
          These are the levees, weirs, channels, and other features of the  
          federally and state-authorized flood control facilities located  
          in the Sacramento River and San Joaquin River drainage basin for  
          which the Board or the Department, has given the assurances of  
          nonfederal cooperation to the United States required for the  
          project.  These are sometimes referred to as "project" levees or  
          flood facilities.
          The Act 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.

          The Act grants the Board authority 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.  The Act requires the cease and  
          desist order to be issued only if the person or public agency  
          has failed to respond in a satisfactory manner to a prescribed  
          notice provided, as specified.  Cease and desist orders are  
          effective upon its issuance and copies are required to be served  
          immediately by certified mail upon the person or agency subject  
          to the order.

          In 2003, the Court of Appeals held in Paterno v. State of  
          California that the state could be held liable, under a theory  
          of inverse condemnation, for property damages caused by the  
          failure of a state project levee.  Although the state played no  
          role in the design or construction of the failed levee, the  
          Paterno court held that "when a public entity operates a flood  
          control system built by someone else, it accepts liability as if  
          had planned and built the system itself."

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

          According to the Senate Appropriations Committee, likely costs  



                                                                     SB 753

          of $75,000 to $150,000 from the General Fund to prepare  
          emergency regulations for the new enforcement procedures.

           SUPPORT  :   (Verified  8/27/13)

          Central Valley Flood Protection Board (source)
          California Central Valley Flood Control Association

           OPPOSITION :    (Verified  8/27/13)

          Garden Highway Community Association

           ARGUMENTS IN SUPPORT  :    According to the author, "Current law  
          for addressing illegal levee encroachments is simply unworkable.  
           The Flood Board can't do anything without formally notifying  
          the party responsible for the encroachment, and if we can't  
          identify and find the responsible party, we're done.  If we do  
          manage to find and notify the responsible party, the Flood  
          Board's only recourse is to ask the Attorney General to sue  

          "In the meantime, our levees remain compromised, threating  
          public safety.  In addition to the potential loss of life and  
          property, there is the potential for state liability under  
          Paterno should a compromised levee fail.  Also, there is the  
          potential for us to become ineligible for federal flood funds if  
          the enforcement programs aren't fixed.  And finally, there is  
          the challenge of trying to get a Provisionally Accredited Levee  
          (PAL) when you have enforcement problems.  Without a PAL,  
          there's the real possibility of increased FEMA rates.  None of  
          this is good."

          "SB 753 fixes all these problems.  It provides reasonable  
          notification provisions, including what to do if the responsible  
          party can't be identified or reached.  It provides for a clear  
          abatement process of notice of violation, cease and desist, and  
          finally enforcement orders, similar to what is done for building  
          code violations.  And finally, it eliminates awkward and  
          obsolete provisions and replaces with clear and direct  

          RM:ej  8/29/13   Senate Floor Analyses 



                                                                     SB 753

                           SUPPORT/OPPOSITION:  SEE ABOVE

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