BILL NUMBER: SB 753 CHAPTERED
BILL TEXT
CHAPTER 639
FILED WITH SECRETARY OF STATE OCTOBER 8, 2013
APPROVED BY GOVERNOR OCTOBER 8, 2013
PASSED THE SENATE AUGUST 30, 2013
PASSED THE ASSEMBLY AUGUST 26, 2013
AMENDED IN ASSEMBLY AUGUST 6, 2013
AMENDED IN ASSEMBLY JUNE 24, 2013
AMENDED IN SENATE MAY 24, 2013
AMENDED IN SENATE APRIL 29, 2013
AMENDED IN SENATE APRIL 18, 2013
AMENDED IN SENATE APRIL 1, 2013
INTRODUCED BY Senator Steinberg
(Coauthors: Assembly Members Dickinson and Pan)
FEBRUARY 22, 2013
An act to amend Section 8732 of, to add Section 8579 to, and to
repeal and add Article 6 (commencing with Section 8700) of Chapter 3
of Part 4 of Division 5 of, the Water Code, relating to flood
protection.
LEGISLATIVE COUNSEL'S DIGEST
SB 753, Steinberg. Central Valley Flood Protection Board.
(1) Existing law provides the Central Valley Flood Protection
Board with the authority to construct and maintain various flood
control works. Existing law 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 would eliminate the authorization for the board to hold
a hearing before the general manager and would authorize the board to
hold a hearing or partial hearing before a qualified neutral hearing
officer designated by the board president or the executive officer.
(2) Existing law requires specified plans that contemplate the
construction, enlargement, revetment, 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
construction is commenced.
Existing law authorizes the board, and the executive officer if
delegated that 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.
Existing law 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. Existing law
provides that a cease and desist order is effective upon its issuance
and that copies are required to be served immediately by certified
mail upon the person or agency subject to the order.
This bill would repeal these provisions and provide that it is
unlawful for any person or public agency to interfere with, obstruct
the performance, maintenance, or operation of, or otherwise take
actions that may adversely affect facilities of the State Plan of
Flood Control, designated floodways, or streams that are regulated by
the board. The bill would authorize the board, following notice and
opportunity for a hearing, to order the removal or modification of an
encroachment that was previously issued a permit by the board if the
board makes a specified finding.
This bill would authorize the board, the executive officer, the
department, or certain local agencies to issue a notice of violation,
as specified, if it is determined that any person or public agency
has undertaken, is threatening to undertake, or maintains any
encroachment, flood system, improvement, or activity in violation of
certain provisions. If the board or executive officer determines that
any person or public agency has failed to adequately respond to a
notice of violation, the bill would authorize the board or executive
officer to issue an order directing that person or public agency to
cease and desist, as specified. The bill would require that if the
board determines that any person or public agency has failed to
correct a violation as required in a cease and desist order, the
board shall hold an enforcement hearing and may, at the conclusion of
the hearing, issue an enforcement order, as prescribed.
This bill would provide the board, executive officer, Department
of Water Resources, and local agencies that operate and maintain
facilities and works on behalf of the board with the authority, as
prescribed, to take administrative or civil enforcement actions to
abate and remedy any interference or potential interference with
facilities of the State Plan of Flood Control, designated floodways,
or streams that are regulated by the board. The bill would establish
the Flood Risk Management Fund in the State Treasury and require all
funds received from these penalties to be paid into the fund and
available, upon appropriation by the Legislature, to be expended by
the board to carry out enforcement of these provisions. The bill
would require the board to adopt emergency regulations necessary to
implement these provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 8579 is added to the Water Code, to read:
8579. (a) Any aggrieved person shall have a right to seek
judicial review of any permit or enforcement order issued by the
board by filing a petition for a writ of mandate in accordance with
Section 1094.5 of the Code of Civil Procedure, within 30 days after
the decision or action has become final.
(b) For purposes of this section, an "aggrieved person" means any
person or public agency that, in person or through a representative,
appeared at a public hearing of the board in connection with the
decision or action appealed, or that, by other appropriate means
before the decision, informed the board of the nature of their
concerns.
SEC. 2. Article 6 (commencing with Section 8700) of Chapter 3 of
Part 4 of Division 5 of the Water Code is repealed.
SEC. 3. Article 6 (commencing with Section 8700) is added to
Chapter 3 of Part 4 of Division 5 of the Water Code, to read:
Article 6. Enforcement of Unauthorized Activities and
Encroachments
8700. (a) It is unlawful for any person or public agency to
interfere with, obstruct the performance, maintenance, or operation
of, or otherwise take actions that may adversely affect facilities of
the State Plan of Flood Control, designated floodways, or streams
that are regulated by the board.
(b) The board, executive officer, department, and local agencies
that operate and maintain facilities and works on behalf of the board
shall have the authority, as set forth in this article, to take
administrative or civil enforcement actions to abate and remedy any
interference or potential interference proscribed by subdivision (a).
8701. (a) If the board or the executive officer determines that
any person or public agency has undertaken, is threatening to
undertake, or maintains any encroachment, flood system improvement,
or activity in violation of this part, the board or the executive
officer may issue a notice of violation to the person or public
agency responsible for the encroachment, flood system improvement, or
activity.
(b) The department or a local agency may issue a notice of
violation pursuant to subdivision (a) for facilities within the board'
s jurisdiction that the department or local agency operates and
maintains if the board delegates the agency that authority. This
subdivision shall not require the department or local agency to
accept that delegation of authority.
(c) A notice of violation shall include all of the following:
(1) A statement describing the activity, failure to act, flood
system improvement, or encroachment that constitutes a violation of
this article, including the sections of this part or board
regulations that are being violated.
(2) A statement of whether the activity, flood system improvement,
or encroachment may be eligible for a permit from the board.
(3) The corrective actions that shall be taken within a specified
time period.
(4) Whether the person or public agency may correct the violation
without obtaining prior approval from the board or executive officer,
or whether prior approval from the board or executive officer must
be obtained prior to taking a corrective action.
(5) A statement that the notice of violation shall be referred to
the board and that the failure to take the requested actions within
the time specified may subject the person or public agency to a cease
and desist order and the imposition of further remedial and
enforcement actions, including, but not limited to, correction of the
violation by the board at the person's or public agency's expense
and penalties.
(6) The name, address, and telephone number of the state or
issuing agency that may be contacted for further information.
(d) The notice of violation shall be served in accordance with
Section 8703 and a copy transmitted to the executive officer within
five calendar days of its issuance. The board or the executive
officer may amend the notice of violation, and, once served in
accordance with Section 8703, the amended notice of violation shall
supersede any notice of violation previously issued for the same
violation.
8701.2. (a) If the board or executive officer determines that any
person or public agency has failed to adequately respond to a notice
of violation, the board or executive officer may issue an order
directing that the person or public agency to whom the notice of
violation was issued to cease and desist.
(b) The board or executive officer may, within its discretion,
issue a cease and desist order without first issuing a notice of
violation in cases where the board or executive officer finds that
issuance of a notice of violation would be futile, would result in
unreasonable delay, or would be unlikely to invoke a timely response.
In the event the board or executive officer issues a cease and
desist order without first issuing a notice of violation, the cease
and desist order shall contain the information required under
subdivision (c) of Section 8701.
(c) A cease and desist order shall do all of the following:
(1) Include a copy of the notice of violation.
(2) Be effective upon its issuance and served immediately pursuant
to Section 8703.
(3) Require that the corrective actions described in the notice of
violation be completed within a specified time period or the person
or public agency shall be subject to an enforcement order pursuant to
Section 8701.4.
(4) Provide a date, time, and location of a public meeting before
the board at which the person or public agency may appear to contest
the cease and desist order.
(d) The meeting noticed pursuant to paragraph (4) of subdivision
(c) shall be consistent with all of the following:
(1) The meeting shall be scheduled to occur at least 30 days after
issuance of the cease and desist order and shall be held pursuant to
the provisions of this part and regulations adopted by the board.
(2) At the meeting, the board may affirm, amend, modify, stay, or
rescind the cease and desist order.
(3) If a person or public agency subject to a cease and desist
order fails to appear at the meeting, the cease and desist order may
be approved by default.
8701.4. (a) If the board or executive officer determines that any
person or public agency has failed to correct a violation as
outlined in a cease and desist order, the board shall hold an
enforcement hearing to consider the issuance of an enforcement order.
(b) The enforcement hearing shall comply with all of the
following:
(1) Notice of the hearing, issued pursuant to Section 8703, shall
be provided at least 30 days before the hearing is scheduled to
occur, unless it is determined that the public interest necessitates
a shorter notice period.
(2) Notice of the hearing shall include a proposed enforcement
order, including any proposed administrative penalties.
(3) The hearing shall be held pursuant to the provisions of this
part and regulations adopted by the board.
(4) If the person or public agency subject to the cease and desist
order fails to appear at the hearing, the right to a hearing will be
deemed waived.
(c) At the conclusion of the hearing, the board may approve,
amend, or reject the proposed enforcement order and thereby take any
and all of the following actions:
(1) Order the removal, modification, or abatement of the
encroachment, flood system improvement, or activity causing a
violation of this part.
(2) Order the restoration of the site.
(3) Impose and require the payment of administrative penalties as
set forth in Section 8704.
(4) Order the recording of the enforcement order with the office
of the county recorder of the county in which the property associated
with the violation is located.
(5) Initiate a civil action in the name of the state for mandamus,
injunction, civil penalties, or other appropriate remedy authorized
by law.
(6) Order any other actions or conditions as the board may
determine are necessary to resolve the violation and ensure
compliance with this part.
(d) The enforcement order shall state any necessary findings and
shall be served immediately pursuant to Section 8703.
(e) A person or public agency against which the board has issued
an enforcement order may seek judicial review of the enforcement
order pursuant to Section 8579. The enforcement order shall be deemed
effective upon issuance.
(f) If the board orders removal, modification, abatement, or
restoration pursuant to this part, the board, its contractor, or its
designee may conduct the work, the costs of which shall be collected
from the responsible person or public agency by whatever legal remedy
is available, including, but not limited to, the placement of a lien
on the property owned by the person or public agency responsible for
the violation pursuant to Section 8704.2. Removal, modification,
abatement, or restoration actions shall not be taken by the board
until after the time for judicial review has passed.
(g) If the board orders the enforcement order to be recorded with
the office of the county recorder, the executive officer shall issue
a certificate of abatement to the person or public agency against
whose property the enforcement order was recorded when the
enforcement action has been fully resolved, including the payment of
any costs and penalties. The person or public agency may, at the
owner's expense, record the certificate with the office of the county
recorder.
(h) This section does not authorize the issuance of an enforcement
order as to any lawful activity undertaken by a public agency
pursuant to Section 8708.
8702. (a) The board, following notice and opportunity for a
hearing, may order the removal or modification of an encroachment
that was previously issued a permit by the board if the board makes
one of the following findings based on substantial evidence:
(1) The encroachment presents an imminent threat to the structural
integrity of the levee, channel, flood control work, or other
facility of the State Plan of Flood Control.
(2) The encroachment significantly impairs the functional
capability of the levee, channel, flood control work, or other
facility of the State Plan of Flood Control to fulfill its particular
intended role in the overall flood control plan.
(3) The encroachment is not in conformance with state law, board
regulations, or, in the case of facilities of the State Plan of Flood
Control, the standards and regulations of the Secretary of the Army.
(b) Routine maintenance by the board, the executive officer, the
department, or local agencies that operate and maintain facilities
and works on behalf of the board that includes the removal or
modification of abandoned property, fences, gates, and vegetation on
a levee or other flood control structure shall not be subject to this
section.
(c) The removal or modification of previously permitted
encroachments shall not be subject to administrative or civil
penalties pursuant to Section 8704 or 8704.1.
(d) If the board orders the removal or modification of a
previously permitted encroachment, the permit for the encroachment
shall be modified or revoked accordingly.
(e) Nothing in this section shall be construed to alter an
individual's right to compensation that may otherwise exist at law or
any rights an individual has under the Constitution of the state or
the United States.
8703. Notice and service required by this article shall be
provided to the person or public agency believed to be responsible
for the violation and the owner of the property on which the
violation occurred or is threatened to occur by one of the following
means:
(a) Hand delivery.
(b) Certified mail.
(c) If the person or agency cannot be reached or reasonably
notified pursuant to subdivision (a) or (b), by placing a copy of the
notice or order on the encroachment or property.
8704. (a) Civil penalties may be imposed by a court of competent
jurisdiction against any person or public agency that undertakes an
activity, flood system improvement, or encroachment that is in
violation of this part or that is inconsistent with any permit, cease
and desist order, or enforcement order previously issued by the
board or executive officer in an amount not less than five hundred
dollars ($500) and not greater than thirty thousand dollars
($30,000).
(b) In addition to any other penalties, civil penalties may be
imposed by a court of competent jurisdiction against any person or
public agency that intentionally and knowingly undertakes an
activity, flood system improvement, or encroachment that is in
violation of this part or that is inconsistent with any permit, cease
and desist order, or enforcement order previously issued by the
board or executive officer in an amount that shall not be less than
one thousand dollars ($1,000) or more than fifteen thousand dollars
($15,000) per day for each day in which the violation persists.
(c) In determining the amount of liability pursuant to
subdivisions (a) and (b), the following factors shall be considered:
(1) The nature, circumstance, extent, and gravity of the
violation.
(2) Whether the violation is susceptible to removal, modification,
abatement, restoration, or other remedial measures.
(3) Whether the function of the levee, channel, or other flood
control work is affected by the violation.
(4) The cost to the state of bringing the action.
(5) With respect to the person or public agency responsible for
the violation, any voluntary remedial measures undertaken, any prior
history of violations, the degree of culpability, economic profits,
if any, resulting from, or expected to result as a consequence of,
the violation, and other matters deemed relevant.
(d) Civil penalties may be imposed by a court of competent
jurisdiction against any person or public agency that intentionally
or negligently violates any cease and desist order issued, reissued,
or amended by the board, or any enforcement order issued, reissued,
or amended by the board in an amount that shall not exceed six
thousand dollars ($6,000) for each day in which that violation
persists. Any actual penalty imposed shall be reasonably
proportionate to the damage suffered as a consequence of the
violation.
8704.1. (a) Administrative penalties may be imposed by the board
in the same manner as civil penalties described in Section 8704, upon
an enforcement hearing and issuance of an enforcement order pursuant
to Section 8701.4, but shall not be less than five hundred dollars
($500) or exceed fifty thousand dollars ($50,000) for a single
violation.
(b) In imposing penalties, the board shall express its rationale
for the amount and specifically address the factors listed under
subdivision (c) of Section 8704.
(c) Any penalties imposed shall be paid within 60 days.
(d) A person or public agency shall not be subject to both civil
and administrative penalties for the same violation.
(e) After the time for judicial review pursuant to Section 8579
has passed, the board may apply to the clerk of the appropriate court
in the county in which the administrative penalties were imposed for
a judgment to collect the penalties assessed. The application, which
shall include a certified copy of the board action, constitutes a
sufficient showing to warrant issuance of the judgment. The clerk
shall enter judgment immediately in conformity with the application.
The judgment so entered has the same force and effect, and is subject
to all the provisions of law relating to, a judgment in a civil
action and may be enforced in the same manner as any other judgment
of the court in which it is entered.
8704.2. (a) Pursuant to subdivision (f) of Section 8701.4, the
board or the board's designee shall have the authority to record a
lien with the county clerk in the county of this state where the
person's or agency's property responsible for the violation is
located, to recover any and all of the following:
(1) Costs incurred in abating, removing, and restoring a
violation, including, but not limited to, costs incurred in seeking
modification, removal, abatement, or restoration pursuant to this
part.
(2) Costs incurred in the summary abatement of emergencies.
(3) Attorney's fees associated with actions to enforce this part.
(b) A lien recorded pursuant to this section shall have the same
force, effect, and priority as a judgment lien.
(c) Before recording a lien, the board shall provide notice and an
opportunity for a hearing to contest the amount of the lien.
(1) Notice shall be provided at least 20 days before the hearing
pursuant to Section 8703.
(2) The hearing required by this section may be satisfied by an
enforcement order hearing pursuant to Section 8701.4 or, in the
summary abatement of emergencies, a hearing pursuant to Section 8708.
8704.4. The remedies provided by this article are not exclusive
of, but shall be concurrent with and in addition to, any other
remedy, penalty, or sanction that may exist by law, civil or
criminal. The board may enforce compliance with the provisions of
this article by mandamus, mandatory injunction, or by any other
appropriate remedy authorized by law. The action or proceeding may be
commenced and maintained by the board in the name of the state.
8705. The Flood Risk Management Fund is hereby established in the
State Treasury. All funds received from penalties pursuant to this
article shall be paid into the fund. Upon appropriation by the
Legislature, the moneys in the fund shall be expended by the board to
carry out enforcement pursuant to this part, including the costs of
the modification, removal, abatement, or restoration of violations
and related litigation.
8706. The board may maintain actions in the name of the state to
compel by injunction the owner or owners of any bridge, trestle, wire
line, viaduct, embankment, or other structure or obstruction that
shall be intersected, traversed, or crossed by any bypass, drainage
canal, channel, or overflow channel to construct or alter any
structure in order to offer a minimum of obstruction to the free flow
of water. In the case of existing works, the board may compel the
removal or alteration of structures or obstructions that impede the
free flow of water.
8706.5. Any activity that does or may interfere with, obstruct
the performance, maintenance, or operation of, or otherwise adversely
affect facilities of the State Plan of Flood Control, designated
floodways, or streams that are regulated by the board constitutes a
public nuisance, and the board may commence and maintain a suit in
the name of the people of the state for the prevention or abatement
of that nuisance.
8707. If the board or Attorney General prevails in a civil action
to enforce this part, or if a local agency prevails in a civil
action to seek abatement costs under subdivision (c) of Section 8708
or modification, removal, abatement, or restoration costs as the
board's designee under subdivision (f) of Section 8701.4, the board,
Attorney General, or local agency shall be awarded attorney's fees
and costs, including, but not limited to, any fees and costs incurred
by its agents.
8708. (a) Nothing in this article shall be construed to prevent
the department, the board, the executive officer, or a
levee-maintaining agency from taking any action to prevent an
imminent failure of a levee, channel, floodway, stream bank, or flood
control feature, or other emergency action necessary to protect the
public welfare.
(b) To the extent emergency action is required that involves the
removal, modification, or abatement of an encroachment, flood system
improvement, or activity maintained by an individual or public
agency, the individual or public agency may request a hearing before
the board within 30 days after the action has been commenced.
(c) After a public hearing, by request or by its own motion, the
entity that has carried out the abatement functions pursuant to this
section may seek reimbursement of its abatement costs and may pursue
any legal remedies available to recover its costs, including imposing
a lien pursuant to Section 8704.2.
8709. The board shall adopt emergency regulations necessary to
implement this article in accordance with Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code. The adoption of emergency regulations shall be
deemed an emergency that calls for the immediate action to avoid
serious harm to the public peace, health, safety, or general welfare.
SEC. 4. Section 8732 of the Water Code is amended to read:
8732. The board may hold a hearing or partial hearing before a
committee of one or more members of the board, before a qualified
neutral hearing officer designated by the board president, or before
the executive officer or chief engineer of the board, at any place
within the state.