BILL ANALYSIS
AB 1165
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Date of Hearing: April 28, 2009
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared William Huffman, Chair
AB 1165 (Yamada) - As Amended: April 15, 2009
SUBJECT : Flood protection.
SUMMARY : This bill makes various corrections and addresses
certain issues arising out of the comprehensive 2007 flood
legislation package. Specifically, this bill :
1)Authorizes the Central Valley Flood Protection Board (Flood
Protection Board) to find the local flood management agency is
making adequate progress in working toward the completion of
the flood protection system for any year in which state
funding is not appropriated consistent with an agreement
between a state agency and the local flood management agency.
2)Requires the Flood Protection Board to create, adopt and make
public a map of the Sacramento San Joaquin Drainage District,
which is protected by State levees and other facilities of the
State Plan of Flood Control.
3)Consolidates all references to the "State Plan of Flood
Control" by reference to the Public Resources Code definition
adopted in Proposition 1E (2006).
4)Clarifies that a quorum of the Flood Protection Board requires
a majority of only the voting members.
5)Repeals an obsolete code section defining an official meeting
of the Flood Protection Board.
6)Redefines the term ex parte communication, to prohibit
communication regarding applications submitted to the Flood
Protection Board, enforcement actions, and other
quasi-judicial matters requiring board action after the matter
has been placed on the agenda and notice has been provided.
7)Requires the Flood Protection Board to hold an evidentiary
hearing for any matter that requires the issuance of a permit
if the proposed work may significantly affect any element of
the State Plan of Flood Control or if a formal protest against
a permit has been lodged.
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8)Authorizes the Flood Protection Board to define types of
encroachments that will not significantly affect any element
of the State Plan of Flood Control, and authorizes the Flood
Protection Board to delegate approval of permits for those
encroachments to the executive officer.
9)Authorizes the Flood Protection Board to delegate to the
executive officer the authority to take action to remove or
modify an encroachment, and authorizes the Flood Protection
Board or executive officer to issue a cease and desist order
to prevent action or threatened action which is inconsistent
with or requires a permit from the board.
10)Authorizes civil liability on a person or public agency that
undertakes an encroachment or violates other specified
requirements relating to encroachments.
11)Corrects references to the Flood Protection Board in other
parts of the Water Code.
EXISTING LAW makes the Flood Protection Board and the Department
of Water Resources (DWR) responsible for Central Valley flood
protection and connects land-use decisions with flood
protection.
FISCAL EFFECT : Unknown, but likely minimal.
COMMENTS : AB 1160 is a "clean-up" bill for the 2007 flood
legislation. The current version makes various technical
amendments to the legislation. The bill's substantive
amendments focus primarily on the legislation that reformed the
Flood Protection Board, which was formerly known as the
"Reclamation Board."
Last session a similar bill, SB 1360 (Machado) was introduced
and was vetoed by the Governor. AB 1165 does not include the
two provisions that prompted the Governor's veto - relating to
conflict of interest requirements and the terms of the current
Flood Protection Board members.
AB 1165 also resolves issues requested to be addressed by the
Department of Water Resources (DWR) and the Department of
Finance (Finance) about SB 1360. The issues addressed include:
Evidentiary Hearings. The Flood Protection Board has
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interpreted the requirements for an evidentiary hearing to
apply to every kind of permit, regardless how substantial.
It applies the requirement to amendments of existing permits,
disregarding statutory language applying evidentiary hearing
requirements to matters requiring "issuance" of a permit.
Last session, DWR proposed a significance test for requiring
evidentiary hearings which has been adopted in AB 1165.
Ex Parte Definition. Last year, DWR also suggested that the
prohibition on ex parte communications is vague and applies
too broadly, to "matters, other than purely procedural
matters, under the board's jurisdiction that are subject to a
vote." The Flood Protection Board's jurisdiction is broad.
So, potentially, that prohibition would stop all conversations
or inquiries by members about any kind of Central Valley flood
policy. DWR proposed to define matters that are subject to ex
parte limitations as applications, enforcement actions,
quasi-judicial matters that have been submitted to the Flood
Protection Board and appear on the agenda. This suggestion by
DWR has also been adopted in AB 1165.
This bill authorizes the Flood Protection Board to find the
local flood management agency is making adequate progress in
working toward the completion of the flood protection system for
any year in which state funding is not appropriated consistent
with an agreement between a state agency and the local flood
management agency. This provision allows local agencies to
continue work on local developments and infrastructure projects
when state funds may be limited or unavailable.
In addition, AB 1165 provides increased enforcement authority to
the Flood Protection Board as it relates to the control and
removal of encroachments on flood protection facilities. The
provisions are patterned after enforcement provisions contained
in the California Coastal Commission Act and allow the board to
take action to remove or modify encroachments and issue cease
and desist orders. These provisions are supported with the
authority to seek the imposition of civil fines and penalties.
REGISTERED SUPPORT / OPPOSITION :
Support: None submitted.
Opposition: None submitted.
Analysis Prepared by : Lindsey Scott-Florez / W., P. & W. /
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