SECTIONS 8700-8709.7 - California Statutes

WATER CODE

SECTION 8700-8709.7

8700. Whenever so required and notified by the board the owner and
the operator of any railroad, electric railroad, wire line, wagon
road or other structure crossing any by-passes or overflow channel,
provided for in this part, shall provide and maintain one or more
suitable draws or other appliances within the by-pass or overflow
channels to permit the passage of watercraft, dredgers or other
machines used in the construction of reclamation works.

8701. The draws or appliances shall be opened for any person
desiring to pass who gives reasonable notice and pays a fee of fifty
dollars ($50).

8702. The draws or appliances shall be located at points designated
by the board.

8703. A failure to comply with any of the preceding provisions of
this article renders the owner or operator of any of the structures
liable to any person for the damages caused to the person by the
failure.

8704. 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 remedies provided by this article are not exclusive of,
but shall be concurrent with and in addition to, any other remedy
which may exist by law.

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, or embankment or other structure or obstruction which
shall be intersected, traversed or crossed by any by-pass, 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.

8707. The board may in the case of existing works compel the
removal or alteration of structures or obstructions that impede the
free flow of water.

8708. Whenever assurances shall have been given to the Secretary of
War pursuant to Article 2 of Chapter 3 of this part, that the State
will maintain and operate works after completion in accordance with
regulations prescribed by the Secretary of War, it is unlawful for
any person or public agency to in anywise interfere with or obstruct
the performance of the maintenance or operation of such works,
including, but not limited to, the encroachment upon any land, or
right of way or easement thereon, acquired by the board for the
maintenance or operation of any levee or other such works.

8709. Any use of any such land, right of way, or easement in
violation of the preceding section, whether for cultivation, planting
of crops or trees, storage or disposal of material, or other
encroachment upon, or use of such land, right of way, or easement
which does or may interfere with or obstruct such operation or
maintenance, 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 such nuisance.

8709.2. "Water side of levee" means the area on the levee slope
between the edge of the crown nearest the water to the water side
levee toe.

8709.3. (a) Fences that are designed to give way during high water
events shall not be allowed on the water side of a levee. Fences on
the water side of a levee that are partially or wholly under water
during high water events, and that are located within state
maintenance areas within city limits under the jurisdiction of the
board, shall be constructed so as to be removable by the permittee in
segments during times of high water events as the water level rises
up the levee.
(b) The permittee shall remove the segments of the fence during
times of high water events.
(c) The board shall adopt emergency regulations necessary to
implement this section 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 to be an emergency and necessary for the immediate
preservation of the public peace, health, and safety, or general
welfare.

8709.4. (a) Before removing or modifying a lawful existing
encroachment on levees, channels, and other flood control works
pursuant to powers granted by this part, a permit, or standards
adopted pursuant to this part, the board shall make one of the
following findings, based on substantial evidence, regarding the
encroachment's impact on public safety:
(1) The encroachment presents an imminent threat to the structural
integrity of the levee, channel, or other flood control work.
(2) The encroachment significantly impairs the functional
capability of the levee, channel, or other flood control work to
fulfill its particular intended role in the overall flood control
plan.
(b) Routine maintenance that includes the removal or modification
of fences, gates, and vegetation on the levee structure and other
flood control structures is not subject to subdivision (a).
(c) The board may delegate authority to the executive officer to
take action to remove or modify encroachments on levees, channels,
and other flood control works in accordance with subdivision (a).

8709.5. (a) Notwithstanding Section 8709 or 8709.4, if the board,
or the executive officer if delegated authority by the board,
determines that any person or public agency has undertaken, or is
threatening to undertake, any activity that may encroach on levees,
channels, or other flood control works under the jurisdiction of the
board, the board or executive officer may issue an order directing
that person or public agency to cease and desist. The order may also
be issued to enforce any requirement of a permit or any requirement
under this part that is subject to the jurisdiction of the board.
(b) The cease and desist order shall be issued only if the person
or public agency has failed to respond in a satisfactory manner to an
oral notice given in person or by telephone, followed by a written
confirmation, or a written notice given by certified mail or hand
delivered to the landowner or the person performing the activity. The
notice shall include the following:
(1) A description of the activity that meets the criteria of
subdivision (a) of Section 8709.4 or a statement that the described
activity constitutes an encroachment that is in violation of this
article because it is not authorized by a valid permit.
(2) A statement that the described activity shall immediately
cease or the alleged violator may receive a cease and desist order,
the violation of which may subject the violator to fines or
penalties.
(3) The name, address, and telephone number of the staff member
who is to be contacted for further information.
(c) The cease and desist order may be subject to terms and
conditions as the board or the executive officer may determine are
necessary to avoid an unreasonable impact on public safety.
(d) The cease and desist order shall be effective upon its
issuance, and copies shall be served immediately by certified mail
upon the person or agency subject to the order.

8709.6. (a) Notwithstanding Sections 8709 and 8709.4, if the board,
after a public hearing, determines that any person or public agency
has undertaken, or is threatening to undertake, any activity that
requires a permit from the board without securing a permit or is
inconsistent with any permit previously issued by the board, the
board may issue an order directing that person or public agency to
cease and desist. The board may also issue the order to enforce any
requirement of a permit, or any requirement of this part that is
subject to the jurisdiction of the board.
(b) The cease and desist order may be subject to terms and
conditions as the board may determine are necessary to ensure
compliance with this part, including immediate removal of any
encroachment or the setting of a schedule within which action shall
be taken to obtain a permit pursuant to this part.
(c) Notice of the public hearing on a proposed cease and desist
order shall be given to any affected person and public agency and the
order shall be final and effective upon the issuance of the order.
Copies shall be served immediately by certified mail upon the person
or public agency subject to the order and upon other affected persons
and public agencies that appear at the hearing or request a copy.
(d) In addition to any other authority to order restoration, the
board may, after a public hearing, order restoration of a site if it
finds that an encroachment has occurred without a permit from the
board.

8709.7. (a) Any person or public agency that violates any provision
of this article may be civilly liable in accordance with this
section.
(b) (1) Civil liability may be imposed by the superior court in
accordance with this article on any person or public agency that
performs or undertakes an encroachment that is in violation of this
article or that is inconsistent with any permit previously issued by
the board in an amount that shall not exceed thirty thousand dollars
($30,000), but shall not be less than five hundred dollars ($500).
(2) Civil liability may be imposed for any violation of this part
other than a violation specified in paragraph (1) in an amount that
shall not exceed thirty thousand dollars ($30,000).
(c) Any person or public agency that performs or undertakes an
encroachment that is in violation of this part or in a manner that is
inconsistent with any permit previously issued by the board, when
the person or public agency intentionally and knowingly performs or
undertakes the encroachment in violation of this part or in a manner
that is inconsistent with any previously issued permit, may, in
addition to any other penalties, be civilly liable in accordance with
this subdivision. Civil liability may be imposed by the superior
court in accordance with this article for a violation described in
this subdivision in an amount that shall not be less than one
thousand dollars ($1,000), nor more than fifteen thousand dollars
($15,000), per day for each day in which the encroachment persists.
(d) In determining the amount of civil liability, the following
factors shall be considered:
(1) The nature, circumstance, extent, and gravity of the
violation.
(2) Whether the violation is susceptible to restoration or other
remedial measures.
(3) The function of the levee, channel, or other flood control
work affected by the violation.
(4) The cost to the state of bringing the action.
(5) With respect to the violator, any voluntary restoration or
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 the board deems relevant.
(e) Any person or public agency that intentionally or negligently
violates any cease and desist order issued, reissued, or amended by
the board, or any restoration order issued, reissued, or amended by
the board may be liable for a civil penalty 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.
(f) This section does not authorize the issuance or enforcement of
any cease and desist order as to any activity undertaken by a local
public agency pursuant to a declaration of emergency by the governing
body of the local public agency or the board of supervisors of the
county in which the activity is being or may be undertaken.