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State
California Regulations
TITLE 23. WATERS DIVISION 1. RECLAMATION BOARD
database is current through 09/29/06, Register 2006, No. 39





<<(Division Originally Printed 7-25-45)>>



s 1. Authority.
These regulations are promulgated by the Reclamation Board pursuant to Water Code sections 8571 and 8608.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 8608 and 8710, Water Code.



s 2. Purpose, Scope.
(a) The purpose of these regulations is to carry out the board's duties pursuant to Water Code sections 8534, 8608 and 8710 - 8723. Under these statutes, the Board is required to enforce, within its jurisdiction, on behalf of the State of California, appropriate standards for the construction, maintenance, and protection of adopted flood control plans that will best protect the public from floods.
(b) The area of the board's jurisdiction includes the entire Central Valley, including all tributaries and distributaries of the Sacramento and San Joaquin Rivers and Tulare and Buena Vista basins.
(c) This division does not apply to the construction, operation, or maintenance of the Central Valley Project or the State Water Resources Development System or any parts thereof.
(d) This division does not apply to any activities of the United States or its agencies.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 8534, 8536, 8608 and 8710, Water Code.



s 3. Intent.
The State has a primary interest in:
(1) Adequately protecting lands subject to overflow;
(2) Confining the waters of rivers, tributaries, bypasses, overflow channels, and basins within their respective boundaries;
(3) Preserving the welfare of residents and landowners;
(4) Maintaining and protecting and banks of the Sacramento and San Joaquin Rivers, their tributaries, bypasses, overflow channels, and basins; and
(5) Good and sufficient levees and embankments or other works of flood control and reclamation, to adequately protect lives and property from floods.
The regulations are also intended to comply with the board's obligations to the U.S. Army Corps of Engineers pursuant to numerous assurance agreements, Corps Operation and Maintenance Manuals, and 33 C.F.R. section 208.10.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 8710, 8532 and 8533, Water Code.



s 4. Definitions.
(a) Adopted Plan of Flood Control. "Adopted Plan of Flood Control" means a flood control or reclamation strategy for a specific area that has been adopted by the board or the Legislature and includes the following:
(1) In the case of project flood channels without levees, it means the natural stream channel and overbank area at design flood levels (see Article 5, Designated Floodways);
(2) In the case of project channels with levees, it means the area between and including the project levees, and includes:
(A) Additional area outside of the project levees where encroachments could affect the integrity, functioning or maintenance of the works (generally ten [10] feet landward of the levee toe);
(B) Any flowage areas that are part of the federal or state flood control project; and
(C) Areas where there are flowage easements; and
(3) In the case of designated floodways, it means the area between the encroachment lines.
(4) Where levees are involved, the "Adopted Plan of Flood Control" extends ten (10) feet landward from the levee toe except where an operation and maintenance manual furnished pursuant to 33 C.F.R. 208.10 or the real property rights acquired by the board specifically provide otherwise.
(b) Berm. "Berm" means the strip of ground between the waterward levee toe and the top of the bank of the low water channel.
(c) Board. "Board" means The Reclamation Board of The Resources Agency of the State of California as provided in Water Code section 8521.
(d) CEQA. "CEQA" means the California Environmental Quality Act, beginning at Public Resources Code section 21000.
(e) Chief Engineer. "Chief engineer" means the person appointed by the board pursuant to Water Code section 8581 for that purpose.
(f) Conforming Existing Encroachment. "Conforming existing encroachment" means an existing facility or use that is consistent with these regulations.
(g) Crest Elevation. "Crest elevation" means the elevation of the top of a levee, dike, or dam.
(h) Department. "Department" means the Department of Water Resources of The Resources Agency of the State of California as provided in Water Code section 120.
(i) Designated Floodway. "Designated floodway" means either:
(1) the channel of the stream and that portion of the adjoining floodplain reasonably required to provide for the passage of a design flood, as indicated by floodway encroachment lines on an adopted map; or
(2) the floodway between existing levees as adopted by the board or the Legislature.
(j) Design Flood. "Design flood" means the flood against which protection is provided or may eventually be provided by means of flood protection or control works, or that flood which the board otherwise determines to be compatible with future developments.
(k) Design Flood Plane. "Design flood plane" means the water surface elevation at design flow as determined by the Army Corps of Engineers, the Board, or Federal Emergency Management Agency, or other higher elevations based upon best available information, as determined by the board.
(l) Dwelling. "Dwelling" means an improvement of real property used, intended to be used, or suitable to be used for residential purposes, including, but not limited to, living, sleeping, cooking, or eating.
(m) Encroachment. "Encroachment" means any obstruction or physical intrusion by construction of works or devices, planting or removal of vegetation, or by whatever means for any purpose, into any of the following:
(1) any flood control project works;
(2) the waterway area of the project;
(3) the area covered by an adopted plan of flood control; or
(4) any area outside the above limits, if the encroachment could affect any of the above.
(n) Floodway. "Floodway" means the channel of a river or other watercourse and the adjacent land areas that convey flood waters.
(o) Floodway Encroachment Lines. "Floodway encroachment lines" means the exterior limits of any designated floodway.
(p) General Manager. "General Manager" means the person appointed by the board pursuant to Water Code section 8581 for that purpose.
(q) Impervious Material. "Impervious material" means soil which has twenty (20) percent or more of its particles passing the No. 200 sieve, a plasticity index of eight (8) or more, and a liquid limit of less than fifty percent (50%).
(r) Levee Section. "Levee section" means the physical levee structure from the landward toe to the waterward toe.
(s) Levee Toe. "Levee toe" means the point of intersection of the levee slope with natural ground.
(t) Low-Flow Channel. "Low-flow channel" means the flowage within a natural channel below top of bank.
(u) Maintenance Activities. "Maintenance activities" means any work required to retain or maintain the intended functions of flood control facilities and of existing encroachments. Maintenance activities include but are not limited to mowing, tree and brush trimming and removal, revetment restoration, rodent control, spraying, painting, coating, patching, burning, and similar works; but does not include any significant excavation or any excavation during flood season. Maintenance activities of public agencies to maintain the designated level of function of flood control facilities within their jurisdiction are authorized and defined by Water Code sections 8361, 8370 and 12642.
(v) Mobile Home. "Mobile home" means a structure transportable in one or more sections and includes any manufactured home, but does not include a recreational vehicle.
(w) Nonconforming Existing Encroachment. "Nonconforming existing encroachment" means an existing facility or use that is inconsistent with these regulations.
(x) Nonproject Works. "Nonproject works" means the entirety or any component of a flood control project within the board's jurisdiction that is neither project works nor designated floodways.
(y) Obstruction. "Obstruction" means any natural or artificial structure or matter which:
(1) may impede, retard, or change the direction of the flow of water, either in itself or by catching or collecting debris carried by the water; or
(2) that is placed where the flow of water could carry it downstream to the damage or detriment of either life or property.
(z) Parties. "Parties" means permit applicants, the board, protestants, and interested public agencies.
(aa) Permit. "Permit" means the approval issued by the board that approves a plan of work, with or without conditions, that results in an encroachment.
(bb) Permitted Uses. "Permitted uses" means flood control project works or other structures, improvements, and land uses in the floodway that alone or cumulatively, in the judgment of the board, will not unduly impede the free flow of water in a stream or jeopardize public safety.
(cc) Project Works. "Project works" means the entirety or any component of a flood control project within the area of the board's jurisdiction that has been approved or adopted by the board or the Legislature, including state or federally constructed levees, bank protection, weirs, pumping plants, and any other related flood control works, or rights-of-way.
(dd) Projected Levee Section. "Projected levee section" means the projection of the levee slope below natural ground at two (2) feet horizontal to one (1) foot vertical (2:1) landside and three (3) feet horizontal to one (1) foot vertical (3:1) waterside.
(ee) Recreational Vehicle. "Recreational vehicle" means any travel trailer, camp car, motor home, tent trailer, or other similar vehicle, with or without power, which is designed or used for human habitation and which may be moved upon a public highway, but does not include a mobile home.
(ff) Respondent. "Respondent" means the person named in an enforcement proceeding notice served and filed pursuant to Sections 20, 21, and 22 of this title.
(gg) Revetment. "Revetment" means a layer or layers of material, such as stone or concrete, to prevent soil erosion.
(hh) River Mile. "River mile" means the mile along the river channel indicated on a quandrangle map published by the United States Geological Survey or as otherwise indicated on a map adopted by the board.
(ii) Stream. "Stream" means natural or regulated water flowing in any natural or artificial channel. Streams may be perennial, flowing continuously; intermittent or seasonal, flowing only at certain times of the year; or ephemeral, flowing only in direct response to precipitation.
(jj) Top of Bank. "Top of bank" means the point of intersection of the berm with the bank.
(kk) Toe of Bank. "Toe of bank" means the point of intersection of the bank with the bottom of the channel of a waterway.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 8361, 8370, 8521, 8581, 8608, 8630 and 8710, Water Code.



s 5. Delegations.
(a) For the purposes of this division, all duties of the board, including the review and approval of all encroachment permit applications, are hereby delegated to the General Manager, with the exception of the following:
(1) Applications for which written protests have been filed;
(2) Applications which require a variance from the board's standards;
(3) Controversial applications, based on substantial public concern;
(4) Applications involving significant policy considerations;
(5) Applications requiring the preparation of an environmental impact report by the board.
(6) Applications involving residential developments, as defined in Section 113.
(7) Applications for surface mining except extensions of time for existing operations.
(8) Applications for bicycle trails on levees.
(b) The General Manager shall have authority to approve notices of exemption, initial studies and negative declarations, notices of preparation, requests for shortened review, draft environmental impact reports, and notices of determination prepared pursuant to CEQA. The General Manager may conduct public hearings on any matter identified in this subsection. The board may, by resolution, delegate other duties and responsibilities to the General Manager, the Director of the department, or others.
(c) The General Manager, by written order, may redelegate these authorities to the Chief Engineer, Board Counsel, or the Department Program Manager for Flood Control Activities under Reclamation Board authority.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 8581 and 8710, Water Code.



s 6. Need for a Permit.
(a) Every proposal or plan of work, including the placement, construction, reconstruction, removal, or abandonment of any landscaping, culvert, bridge, conduit, fence, projection, fill, embankment, building, structure, obstruction, encroachment or works of any kind, and including the planting, excavation, or removal of vegetation, and any repair or maintenance that involves cutting into the levee, wholly or in part within any area for which there is an adopted plan of flood control, must be approved by the board prior to commencement of work.
(b) Permits may be required by the board for existing structures that predate permitting or where it is necessary to establish the conditions normally imposed by permitting. The circumstances include those where responsibility for the encroachment has not been clearly established or ownership and use have been revised.
(c) Every proposal or plan of work described in subdivision (a), but located outside an area over which there is an adopted plan of flood control, must be submitted to the board for approval prior to commencement of work if it is foreseeable that the plan of work could be injurious to or interfere with the successful execution, functioning, or operation of any facilities of an adopted plan of flood control or of a plan under study. If in the judgement of the General Manager, the plan of work is determined to be injurious to or interfere with an adopted plan of flood control or of a plan under study, the plan of work would be subject to requirements of this division.
(d) Permits are not required for maintenance activities as defined in article 2, section 4 of this title.
(e) The General Manager may waive the requirement for a permit for minor alterations within an adopted plan of flood control that would not be injurious to the adopted plan of flood control.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 8608 and 8710, Water Code.



s 7. Endorsement by Local Maintaining Agency
(a) Prior to submitting an encroachment permit application to the board, the application must be endorsed by the agency responsible for maintenance of levees within the area of the proposed work, such as a reclamation district, drainage district, flood control district, levee district, county, or city. Endorsement or denial of the application by the maintaining agency does not preclude the board from either approving or denying the application. If endorsement by the maintaining agency is declined or is unreasonably delayed, the application may be submitted to the board for consideration, along with a satisfactory explanation for lack of an endorsement.
(b) For the purpose of this section "endorsement" means conceptual plan approval, which may include recommended permit conditions of the local maintaining agency.
(c) Applicants shall be advised by the board that permission for an encroachment may also be required from the local maintaining agency.
(d) This section does not apply where the department is the maintaining agency.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 8370, 8708, 8710 and 12642, Water Code.



s 8. Applications.
(a) All applications for approval must be on forms provided by the board. Applications to the board must be typewritten or in legible handwriting in ink and signed by or on behalf of the applicant. Applicants must furnish copies of other material as may be needed by the board and its staff to adequately determine the exact nature of the proposed work and its effect upon any project facilities or adopted plan of flood control. Applications and all associated material must be filed in quadruplicate (4 copies) with the office of the board. A copy of the application form is found in Appendix A.
(b) Information furnished to the board must include:
(1) A description of the proposed work, together with a statement of the dates the planned construction will be initiated and completed.
(2) A completed copy of the Environmental Assessment Questionnaire that accompanies the application form from the board (See Appendix A) and a copy of any draft and final environmental review document prepared for the project, such as an initial study, environmental assessment, negative declaration, notice of exemption, or environmental impact report. For any reasonably foreseeable significant environmental impacts, mitigation for such impacts shall be proposed.
(3) Complete plans and specifications showing the proposed work, including a location map showing the site of the work with relation to topographic features; a plan view of the area; and adequate cross sections through the area of the proposed work. The plans must be drawn to scale and refer to National Geodetic Vertical Datum (NGVD), or other known datum. The plans must also indicate any project features such as levees and/or channels, roads, or other structures, and must show river mile or levee mile references. The dimensions of any proposed or existing fills, excavations, and construction must be given.
(4) Additional information, such as geotechnical exploration, soil testing, hydraulic or sediment transport studies, biological surveys, environmental surveys and other analyses may be required at any time prior to board action on the application.
(5) The names and addresses of all landowners adjacent to the property on which the project is located.
(c) The Board may waive minor variations in an application.


Note: Authority cited: Section 8571, Water Code. Reference: Section 2090, Fish and Game Code; Sections 21080.3, 21104.2 and 21160, Public Resources Code; and Sections 8611, 8710 and 8730.3, Water Code.



s 9. Acknowledgement of Receipt, Completeness of Applications, and Notice to Contiguous Landowners.
(a) The board shall acknowledge receipt of all applications in writing within ten (10) working days of receipt.
(b) The board shall send a notice of the pending application and its content to each adjacent landowner identified by the applicant within ten (10) working days of receipt of the application.
(c) Within thirty (30) calendar days of receipt of an application, the board shall determine whether the application is complete and notify the applicant, or the applicant's agent, of its determination and any need for additional information.
(d) Applications shall be deemed received and complete either when the applicant supplies the requested additional information or, if no additional information is requested, thirty (30) calendar days after the receipt of the application by the board.


Note: Authority cited: Section 8571, Water Code. Reference: Section 65943, Government Code; and Sections 8710, 8730.1 and 8730.3, Water Code.



s 10. Environmental Review.
(a) Each application shall be evaluated by an environmental review committee appointed by the General Manager, to review the environmental aspects of the application and to make recommendations with respect to compliance with the California Environmental Quality Act, Public Resources Code section 21000 et seq. ( "CEQA") and the CEQA Guidelines, Title 14, California Code of Regulations, section 15000 et seq. The recommendations may include proposals for mitigation to avoid significant effects on the environment.
(b) The board may charge and collect a reasonable fee from any person proposing a project for which the board must prepare an environmental impact report ( "EIR"), initial study, or negative declaration. The fee will be an amount which will recover the costs incurred by the board and the department in preparing such EIR, initial study, and negative declaration. The board may charge and collect a deposit from the applicant for fees prior to undertaking environmental review. The deposit for these costs will include the cost of any consultants, staff time, and costs of printing established according to the formula contained in section 503 of this title which is incorporated by reference.
(c) The applicant shall provide the board and its authorized agents access to the area of the proposed work, upon request by the board or its authorized agents, for environmental, engineering or other purposes related to the board's review of the application.


Note: Authority cited: Section 21082, Public Resources Code; and Section 8571, Water Code. Reference: Sections 21082 and 21089, Public Resources Code; and Sections 8608 and 8710, Water Code.



s 11. Variances.
(a) An application for an encroachment permit for a use that is not consistent with the board's standards as outlined in this division requires a variance approved by the board.
(b) When approval of an encroachment requires a variance, the applicant must clearly state in the application why compliance with the board's standards is infeasible or not appropriate.
(c) The General Manager may grant temporary variances to allow work during the flood season (See Table 8.1).
(d) Where the General Manager finds in a particular situation that there is no legitimate reason for the application of one of the board's standards, the General Manager may waive any such standard for that situation.


Note: Authority cited: Section 8571, Water Code. Reference: Section 8710, Water Code.



s 12. Protests.
Protests to permit applications may be submitted by any interested party. For the purpose of the section, the term "interested party" means a party who has a legally recognizable private or public interest. Protests must be submitted in writing. Each protest must include:
(1) The name, address, and telephone number of the protestant;
(2) A clear statement of the protestant's objections; and
(3) An explanation of how the protestant will be adversely affected by the proposed project. Within ten (10) days of receipt of a protest, the board shall mail a copy of the protest to the applicant. Protests must be based solely upon flood control concerns or, where the board is acting as lead agency under CEQA, environmental concerns.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 8571 and 8710, Water Code; and Section 21092, Public Resources Code.



s 13. Hearings.
(a) Hearings shall be held on an application in the following circumstances:
(1) Upon written request of the applicant;
(2) When approval requires a variance to the board's standards;
(3) When any person files a written protest conforming to the requirements of section 12 and requests a hearing;
(4) When the authority to approve the activity has not been delegated to the General Manager;
(5) Upon the board's own motion.
(b) The applicant and other parties may request in writing that the board provide a copy of any document, not exempt from disclosure under the Public Records Act, beginning at Government Code section 6251, that is relevant to any proceeding. The board may charge a reasonable fee for each copy.
(c) The board may hold a hearing or a partial hearing at any place within the state on its own initiative or on the request of the applicant. All hearings must be open to the public. The board President may designate a hearing officer. The board may require the applicant to pay all or part of the expenses of any hearing not located in the County of Sacramento, if the hearing is moved from Sacramento at the request of the applicant. These expenses may include, but are not limited to the following:
(1) Traveling expenses of the board, officers, and employees of the board;
(2) Expenses of stenographic reporting and transcribing evidence; and
(3) A proportionate allowance, according to their usual rate of compensation, for the time of members, officers, and employees of the board required for the hearing.
(d) Written notice of the hearing shall be mailed to the applicant and each other party at least ten (10) days prior to the date of the hearing.
(e) Applicants shall be notified of the staff recommendations on the application at least seven (7) days prior to the hearing, unless this period is waived by the applicant. Adjacent landowners shall also be notified of staff recommendations at least seven (7) days prior to the hearing if they have responded in writing to the notice sent pursuant to section 9(b) of this article. Protestants shall be notified of the staff recommendations at least seven (7) days prior to the hearing.
(f) The board President may implement additional administrative procedures for the conduct of hearings and related proceedings. This authority may be redelegated to the General Manager.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 6253 and 11125, Government Code; and Sections 8710, 8730.2, 8731, 8732, 8732.5, 8734 and 8735, Water Code.



s 14. Board Decision.
(a) The board shall act upon applications within the following time limits:
(1) When the board is the lead agency pursuant to CEQA and an environmental impact report is prepared, it shall approve or disapprove a project within six months from the date of the certification of the environmental impact report.
(2) When the board is the lead agency and a negative declaration is adopted or if the project is exempt from CEQA, the board shall approve or disapprove a project within three months from the date of the adoption of the negative declaration.
(3) When the board is a responsible agency for a project that has been approved by the lead agency, it shall either approve or disapprove the project within whichever is the longer:
(A) Within one-hundred-eighty (180) days of the date on which the lead agency has approved the project; or
(B) Within one-hundred-eighty (180) days of the date on which the application is deemed complete.
(b) Applicants may waive the requirement that applications be acted upon within such periods. Waivers must be in writing or expressed on the record at a hearing.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 65950 and 65952, Government Code; and Section 8730.1, Water Code.



s 15. Bases for Denial of Applications.
The board may deny a permit for any of the following reasons:
(a) If the proposed work could:
(1) Jeopardize directly or indirectly the physical integrity of levees or other works;
(2) Obstruct, divert, redirect, or raise the surface level of design floods or flows, or the lesser flows for which protection is provided;
(3) Cause significant adverse changes in water velocity or flow regimen;
(4) Impair the inspection of floodways or project works;
(5) Interfere with the maintenance of floodways or project works;
(6) Interfere with the ability to engage in floodfighting, patrolling, or other flood emergency activities;
(7) Increase the damaging effects of flood flows; or
(8) Be injurious to, or interfere with, the successful execution, functioning, or operation of any adopted plan of flood control.
(b) When the board is the lead agency under CEQA, and the proposed encroachment could result in potential and unmitigated significant environmental effects, including cumulative environmental effects.
(c) When the board is a responsible agency under CEQA, and the CEQA document is inadequate.
(d) If the applicant fails to supply information deemed necessary by the board for application purposes, including the names of all adjacent landowners.
(e) If the proposed work does not meet board standards contained in article 8.
(f) If there has been a failure by the applicant (or persons associated with the applicant through an agreement or agency relationship) to substantially comply with permit conditions on prior related permits or if there has been work performed without a permit and that work is not the subject of the pending permit application where the applicant has not supplied reasonable and convincing assurances that compliance with the board's regulations will be achieved.


Note: Authority cited: Section 8571, Water Code. Reference: Section 65943, Government Code; Sections 21002 and 21081, Public Resources Code; Sections 8608, 8710 and 8723, Water Code.



s 16. Permit Conditions.
(a) Any board permit may include and be subject to such reasonable conditions as deemed appropriate by the board, and may include mitigation for effects of the approved activity on the environment.
(b) The permit may require inspection by the board, its officers, or staff before, during, and after construction, and at regular intervals thereafter. The board may charge and collect a reasonable fee from an applicant to recover inspection costs, including staff or consultant time and expenses.
(c) The permit may require a reporting and monitoring program for any mitigation required by the board to avoid significant effects on the environment.
(d) The permit may require the filing with the board of reports and data, including a description of all work done under the approved application. The board may also request in writing at any time any reports or data, even if not expressly stated in a condition to the decision.
(e) The permit shall require that all of the work must be in accordance with the submitted drawings and specifications and accomplished in a professional manner.
(f) The permit may require the owner of an encroachment, or the owner of real property upon which the encroachment is located, to execute and cause to be recorded a document which imposes a covenant, restriction, servitude, or combination thereof, which runs with the land and binds all owners, heirs, successors, lessees, agents, and assigns, and would be enforceable by the board or its successor. This requirement may be imposed where there are particular concerns about permit compliance, such as where there may have been previous permit violations by the applicant or where record notice to successors-in-interest to the applicant or landowner is deemed appropriate.
(g) The permit may require the applicant to provide notice of the continuing flood threat to occupants and potential occupants of property subject to flood risk.
(h) The permit may require additional conditions requested by the Corps and the local maintaining agency.
(i) The permit shall require exercise of reasonable care to operate and maintain any work authorized by the permit to prevent injury or damage to any works necessary to any adopted plan of flood control, or interference with the successful execution, functioning, or operation of any present adopted plan of flood control or future plan. The permittee shall maintain the permitted encroachment and the project works within the utilized area in the manner required by the authorized representative of the department or any other agency responsible for flood control maintenance.
(j) The permit may require the permittee to be responsible for all personal liability and property damage which may arise out of permittee's actions or failure to perform the obligations of the permit. The permittee shall agree to save and hold the state free and harmless from, and to defend and indemnify the state against, any and all claims and liability, including but not limited to, personal injury or property damage arising or claimed to arise, directly or indirectly, from the uses of land pursuant to the permit. The permittee shall agree to release the state from responsibility or liability for any damages that may be caused to the encroachment by operation of the flood control project or from the releases of water from storage reservoirs. The permittee shall also agree to be precluded from receiving state disaster assistance for flood damage to the permitted works, except as provided by a flood insurance policy.
(k) The permit may require that if the work covered by the permit is not commenced within one year after the issuance of the permit, the board may revoke the permit or change any condition in the permit as may be consistent with current flood control standards and policies of the board.
(l) The permit may provide that commencement of work under a permit constitutes an acceptance of the conditions of the permit.
(m) If any of the work does not conform to the conditions of the permit, the permittee, upon the order of the General Manager or Chief Engineer, shall, in the manner prescribed, be responsible for the cost and expense to remove, alter, relocate, or reconstruct all or any part of the work.
(n) The permit may require the permittee, at permittee's cost and expense, to remove, alter, relocate, or reconstruct all or any part of the permitted work if the removal, alteration, relocation, or reconstruction is necessary under or in conjunction with any present or future flood control plan or if damaged by any cause.
(o) The permit may require the permittee to mitigate for the hydraulic impacts of the permitted works by reducing or eliminating the additional flood risk to third parties created by the permitted works.
(p) Liability insurance may be required to be provided naming the State and the local maintaining agency performing flood control maintenance as additional insureds.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 21002, 21081 and 21081.6, Public Resources Code; Sections 8608 and 8710, Water Code; Title 33, Code of Federal Regulations, Section 208.10.



s 17. Emergencies.
(a) Any existing levee, conforming existing encroachment, or permitted encroachment may be protected or strengthened in case of emergency during flood season, as specified in section 112, where there is imminent danger of injury to persons, loss of life, or destruction of property.
(b) Any person conducting emergency work shall immediately notify the local maintaining agency and the board through the General Manager or Chief Engineer.
(c) For the purpose of this section, the term "emergency" includes any lawfully declared emergency, or any circumstance determined to be an emergency by the General Manager or Chief Engineer.
(d) In an emergency, the General Manager may issue a temporary permit. A completed application with proper plans, cross sections, completed environmental assessment questionnaire, and any other necessary information required by section 8 of this article must be submitted to the board within thirty (30) days following the date of the commencement of emergency work.
(e) All emergency work is subject to subsequent approval of the board, and the board may require its removal or alteration if not approved.
(f) The board or the General Manager may impose reasonable conditions, pursuant to section 16, on its approval of any emergency work.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 8715, 8716, 8717 and 8718, Water Code.



s 18. Revisions in Plans.
(a) Any plan of work approved by the board may be changed or altered only with the consent of the board prior to the time of commencement or during progress of the work. A request for an amendment to a plan of work must be in the same form as an original application or in a form acceptable to the Chief Engineer.
(b) Minor, insubstantial changes may be made in plans without the submission of a written request for an amendment; however, the permittee shall first notify the Chief Engineer of any change before commencing work on any changed work. A minor, insubstantial change must be one that is essentially consistent with the application or permit, consistent with board standards, and does not pose a threat to the adopted plan of flood control. The board reserves the right to require the applicant to file a written request for an amendment.


Note: Authority cited: Section 8571, Water Code. Reference: Section 8721, Water Code.



s 19. District Lands.
No encroachment may be constructed or maintained upon lands owned in fee by the Sacramento and San Joaquin Drainage District, except when expressly permitted by a proper and revocable license, lease, easement, or agreement executed between the owner of the encroachment and the district, and upon payment to the district of its expenses and adequate rental or compensation therefor. This requirement is in addition to the need for a permit as required in section 6 of this article.


Note: Authority cited: Section 8608, Water Code. Reference: Sections 8504, 8598, 8708 and 8709, Water Code.



s 20. Initiation.
(a) The General Manager may institute an enforcement proceeding by serving a notice by certified mail, return receipt requested, to the landowner or person (referred to hereafter as the "respondent") owning, undertaking or maintaining a work that is in violation of this division or threatens the successful execution, functioning or operation of an adopted plan of flood control. The notice must state the acts or omissions which the General Manager believes to be in violation of this division or threatens the successful execution, functioning or operation of an adopted plan of flood control. The notice must specify the statutes or regulations which the respondent is alleged to have violated. This notice must be accompanied by an order requiring the respondent to respond to the notice within thirty (30) days of the receipt of the notice. The notice and the order must state that the board may seek judicial enforcement should the respondent fail to respond to the notice in a timely manner and that the board may abate violations or threats to the adopted plan of flood control through actions identified in section 22(b).
(b) Other interested parties may become parties to an enforcement proceeding by filing a notice to that effect with the board. The board shall mail a copy of that notice to the respondent within ten (10) days of receipt.
(c) Notwithstanding subdivision (a), if there is work that has not been approved by the board, the General Manager or the Chief Engineer may issue an order for compliance with this division, including an order to stop work.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 8596, 8608, 8710 and 8719, Water Code.



s 21. Hearing.
(a) The respondent shall have the opportunity for a hearing, which must be requested in the respondent's timely response to the notice of enforcement proceeding. Failure to file such response within thirty (30) days of receipt of the notice constitutes a waiver of respondent's right to a hearing.
(b) The respondent and other parties may request that the board provide a copy of any document, not exempt from disclosure under the Public Records Act, beginning at Government Code section 6521, that is relevant to the enforcement proceedings. The board may charge a reasonable fee for each copy.
(c) The board may hold the hearing or a partial hearing before a committee of one or more members of the board, or before the General Manager or Chief Engineer, at any place within the state. All hearings must be open to the public. The board President shall designate the hearing officer.
(d) Written notice of the hearing shall be mailed to the respondent and each other party at least ten (10) days prior to the date of the hearing.
(e) Respondents and other parties shall be mailed a copy of any staff report or recommendations on the enforcement proceedings at least ten (10) days prior to the hearing.
(f) The hearing officer shall take and make a record of the evidence. The hearing officer shall prepare a proposed decision based upon the record. At a minimum, record must include the following: (1) the notice of enforcement proceeding and all supplementary material; (2) any staff report or analysis; (3) comments or documents submitted by the respondent, protestants, any public agency, or other third person; and (4) the transcript of the hearing.


Note: Authority cited: Section 8571, Water Code. Reference: sections 8596, 8608, 8710, 8719, 8730, 8730.2, 8730.3, 8731, 8732, 8732.5 and 8733, Water Code.



s 22. Board Decision.
(a) The hearing officer shall prepare the proposed decision within thirty (30) days after the conclusion of the enforcement hearing. The board shall adopt its final decision at the next regularly scheduled board meeting after issuance of the proposed decision.
(b) The board decision shall by order specify what action must be taken by the respondent, at respondent's cost, and the time within which such action must be taken. The required action may include, but is not limited to the following:
(1) Removal of the work;
(2) Alteration of the work;
(3) Performance of additional work;
(4) Implementation of specified mitigation for effects on the environment;
(5) Compliance with additional reasonable conditions;
(6) Filing an application for a permit pursuant to this division;
(7) Revocation of the permit.
The board decision may also give notice that if the respondent does not comply with the decision within a reasonable time, the board may take actions to abate violations or threats to the adopted plan of flood control, such as physical removal, and recover its costs from the respondent.
(c) The conditions imposed pursuant to subdivision (b) may require the respondent to permit inspection by the board, its officers, staff, or authorized representatives of the department during and after construction.
(d) The conditions may require the respondent to file with the board reports and data, including a description of all work done under the approved application. The board may also request in writing at any time any reports or data, even if not expressly stated in a condition to the decision.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 21002 and 21081, Public Resources Code; Sections 8608 and 8710, Water Code.



s 23. Reconsideration.
(a) No later than thirty (30) days after adoption by the board of a decision or order, any interested person affected by the decision or order may petition the board for reconsideration of the matter for any of the following causes:
(1) Irregularity in the proceeding, or any ruling, or abuse of discretion which prevented a fair hearing;
(2) The decision or order is not supported by substantial evidence;
(3) There is relevant evidence, which could not have reasonably been produced previously;
(4) Error in law;
(5) The application or matter, upon a vote of the Board, failed to be approved, and;
(A) There were one or more members of the board absent from the proceedings at the time the application or matter was considered and voted upon, except that absences due to abstention shall not be counted; and
(B) The number of votes by which the application or matter failed to be approved is equal to or less than the number of board members that were absent.
(b) The petition for reconsideration shall be in writing and contain the following:
(1) Name and address of petitioner;
(2) The specific action of which petitioner requests reconsideration;
(3) The specific reason the action was inappropriate or improper;
(4) The specific action which the petitioner requests;
(5) A statement that copies of the petition and accompanying material have been sent to all interested parties.
(c) The board may:
(1) Refuse to reconsider the decision or order if the petition fails to raise substantial issues related to the criteria set forth in subdivision (a); or
(2) After review of the record and the petition:
(A) Deny the petition upon finding that the decision or order was proper;
(B) Set aside or modify the decision or order; or
(C) Take other appropriate action.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 8598, 8608 and 8710, Water Code.



s 101. Responsibility of the Board.
The board, after appropriate studies have been made, shall delineate on an aerial mosaic or map, the proposed designated floodway and the floodway encroachment lines. The board shall further determine allowable uses in the designated floodway pursuant to Section 107.


Note: Authority cited: Section 8571, Water Code. Reference: Section 8609, Water Code.



s 102. Considerations in Designating Floodways.
In proposing and revising designated floodways, the board must consider all of the following:
(a) Existing and projected federal, state, and local flood control improvements and regulations affecting the flood plain;
(b) The degree of danger from flooding to life, property, public health and welfare; and
(c) The rate and type of development taking place upon the flood plain.


Note: Authority cited: Section 8571, Water Code. Reference: Section 8609, Water Code.



s 103. Notices and Hearings.
The board shall notify local interested parties, thirty (30) days prior to any hearing or hearings on designated floodways and floodway encroachment lines, by notice published at least twice in a newspaper of general circulation in the affected area. Hearings must be held in areas convenient to the majority of interested parties. The board shall hold one hearing prior to initiation of the study and at least one hearing after the study has been completed but prior to adoption.


Note: Authority cited: Section 8571, Water Code. Reference: Section 8609, Water Code.



s 104. Recording.
After a designated floodway and the floodway encroachment lines are adopted by the board, an aerial mosaic or map showing the designated floodway and the floodway encroachment lines shall be transmitted to the appropriate county or counties for recording.


Note: Authority cited: Section 8571, Water Code. Reference: Section 8609, Water Code.



s 105. Availability of Maps.
The board shall furnish a copy of the map or maps showing the limits of the designated floodway to the county engineer, the county planning department, and other interested parties.


Note: Authority cited: Section 8571, Water Code. Reference: Section 8609, Water Code.



s 106. Floodway Modifications.
If, after the adoption of the designated floodway and floodway encroachment lines, the board determines that conditions have changed sufficiently to necessitate altering the lines, the board may, at any regularly noticed meeting, make modifications to the designated floodway as it deems to be appropriate.


Note: Authority cited: Section 8571, Water Code. Reference: Section 8609, Water Code.



s 107. Permitted Uses in Designated Floodways.
The following uses may be permitted in the designated floodway so long as alone or cumulatively, in the judgment of the board, they will not unduly impede the free flow of water in the floodway or jeopardize public safety:
(a) Open space uses not requiring a closed building, such as agricultural croplands, orchards, livestock feeding and grazing, or public and private recreation areas.
(b) Fences, fills, walls, or other appurtenances which do not create an obstruction or debris-catching obstacle to the passage of floodwaters.
(c) Storage yards for equipment and material, if the equipment and material can be either securely anchored or removed upon notice.
(d) Railroads, streets, bridges, and public utility wires and pipelines for transmission and local distribution.
(e) Commercial excavation of materials from pits, strips, or pools provided that no stockpiling of materials, products, or overburden creates an obstruction to the passage of flood flows.
(f) Improvements in stream channel alignment, cross-section, and capacity.
(g) Structures that are designed to have a minimum effect upon the flow of water and are firmly anchored to prevent the structure from flotation, provided that normally no structures for human habitation will be permitted.
(h) Recreational vehicles and related service facilities that are either floodproofed or are removed during the flood season of the particular stream involved.
(i) Other uses which are not appreciably damaged by floodwaters.


Note: Authority cited: Section 8571, Water Code. Reference: Sections 8609 and 8710, Water Code.



s 108. Existing Encroachments.
(a) Upon adoption of a plan of flood control, an existing facility or use shall be allowed to continue as provided below:
(1) A permit or order shall be automatically issued for all conforming existing facilities and uses. The facility or use may not be changed, extended, or expanded without a new application to and approval by the board. If the facility is abandoned, it shall be removed at the expense of the owner and not replaced.
(2) Nonconforming existing encroachments that do not have a major detrimental impact shall be allowed to continue under a permit or order until abandoned or until they are destroyed or damaged, by any cause, to the cumulative extent of more than fifty (50) percent of their market value or their physical usefulness during any 10-year period. The facility or use may not be changed, extended, or expanded without a new application to and approval of the board. If the facility is abandoned, it shall be removed at the expense of the owner and not replaced.
(3) Nonconforming existing encroachments that have a major detrimental impact shall be removed, abandoned, or suitably modified at no cost to the owner, if they have been in existence prior to the adoption or authorization of a project by the United States or prior to the adoption or authorization of a plan of flood control by the state.
(4) Nonconforming existing facilities or uses that have a major detrimental impacton the adopted plan of flood control and which were not in existence at the time of adoption of the plan of flood control shall be removed, abandoned, or suitably modified as directed by the board, all at the expense of the owner, and within a period of time specified by the board. (continued)