BILL ANALYSIS �
SB 753
Page 1
Date of Hearing: July 2, 2013
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Anthony Rendon, Chair
SB 753 (Steinberg) - As Amended: June 24, 2013
SENATE VOTE : 29-9
SUBJECT : Central Valley Flood Protection Board: enforcement
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 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.
4)Allows an enforcement order to require the removal,
modification, or abatement of an encroachment, flood system
improvement, or activity causing a violation and require
restoration of the site.
5)Allows a person or entity against which the Board has issued
an enforcement order to seek judicial review of the
enforcement order.
6)Retains current provisions allowing a court of competent
jurisdiction to impose civil penalties between $500 and
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$30,000 per violation and, in addition, to impose between
$1,000 and $15,000 per day for intentional and knowing
violations.
7)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.
8)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.
9)Provides the Board with authority to adopt emergency
regulations necessary to implement the provisions of this
bill.
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 Senate Appropriations
Committee analysis, likely costs of $75,000 to $150,000 from the
General Fund to prepare emergency regulations for the new
enforcement procedures.
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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.
The standard of care applicable to the State for the protection
and maintenance of the levee and flood system was gravely
increased by the landmark decision Paterno v. State of
California . In February 1986, one of the greatest storms on
record in California occurred leading to major rains and
flooding raging throughout the State for more than a week. In
Northern California, the Yuba River crested near the town of
Linda just upstream of Marysville and Yuba City reaching 76 feet
at a point where the maximum levee capacity was 80 feet.
However, while the waters were receding, the Linda levee began
to boil and then give way, eventually 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, in the end it
did not matter. In Paterno , the Third District Court of Appeal
held the state liable for playing a role in operating and
maintaining the system stating that "[w]hen a public entity
operates a flood control system built by someone else, it
accepts liability as if it had planned and built the system
itself."
Supporting arguments : The author is worried about the State
incurring Paterno-type liability if it cannot prevent and remove
illegal encroachments efficiently and effectively. According to
the author, the "board has hundreds of unresolved encroachment
problems. The current administrative framework lacks teeth and
the board must often resort to expensive and time consuming
litigation to obtain resolution" which is "very costly to the
general fund." The Attorney General's Office estimates that
enforcing just one current case 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 adds that the,
"Board is not authorized under law to receive attorney fees, so
the state may not recoup any of the $110,000 to $150,000. In
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addition, the lawsuit may take years to resolve, during which
time the obstruction will remain in place." Other supporters
state that this bill provides the Board "much-needed new
authority to act as a deterrent and encourage voluntary removal
at the beginning of encroachment projects, while ensuring
appropriate due process for landowners." Supporters add that
federal law threatens the State with "the loss of Federal
financial assistance in case of levee failures" if the State
cannot meet federal standards for levee integrity.
Opposing arguments : Landowners with previously permitted homes
on levees are concerned they could now be found out of
compliance with encroachment laws and are concerned that this
bill could force them to "live under a confusing cloud of
uncertainty, that at any moment their legitimately obtained
encroachment permits could be revoked; thereby, requiring
homeowners to tear down their homes at their own cost." Other
opponents fear that although the Board has "existing eminent
domain authority" this bill will allow the Board "not to pay
compensation."
Suggested amendments : Committee staff recommends that the
author consider two substantive amendments and a technical one.
First, this bill contains a provision allowing the Board to
bypass the issuance of a notice of violation and move straight
to a cease and desist order "where it deems a notice of
violation would not be in the best interest of the state."
However, the "best interest of the state" is not an objective
standard. Potentially affected parties could benefit from a
clearer articulation of the circumstances under which bypassing
the issuance of a notice of violation would be justified.
Second, landowners are concerned that this bill may change the
standards applicable to whether or not homes with pre-existing
permits that are later found nonconforming could be removed and
whether compensation would be due. The author's office states
that nothing in this bill is meant to change either of those
standards. Therefore, the author may wish to consider an
amendment making an affirmative statement that nothing in the
bill is meant to change existing standards regarding the
circumstances under which a previously permitted home could be
removed and whether or not compensation would be due.
Finally, the Administrative Procedures Act defines an emergency
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as "a situation that calls for immediate action to avoid serious
harm to the public peace, health, safety, or general welfare."
Committee staff recommends, as a technical fix, that this bill
conform to that definition when articulating the need for
emergency regulations.
REGISTERED SUPPORT / OPPOSITION :
Support
Central Valley Flood Protection Board (sponsor)
Central Valley Flood Control Association
Opposition
Garden Highway Community Association
one individual
Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916)
319-2096