BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 753|
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UNFINISHED BUSINESS
Bill No: SB 753
Author: Steinberg (D), et al.
Amended: 8/6/13
Vote: 21
SENATE NATURAL RESOURCES AND WATER COMMITTEE : 7-1, 4/23/13
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
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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.
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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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Background
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
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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
them."
"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
language."
RM:ej 8/29/13 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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