COMMITTEE ON NATURAL RESOURCES AND RURAL AFFAIRS
SENATE AMENDMENTS TO H.B. 2316
(Reference to House engrossed bill)
Strike everything after the enacting clause and insert:
“Section 1. Section 48-3603, Arizona Revised Statutes, is amended to read:
48-3603. Powers, duties and immunities of district and board; exemptions
A. A county flood control district organized under this article is a political taxing subdivision of this state and has all the powers, privileges and immunities granted generally to municipal corporations by the constitution and laws of this state including immunity of its property and bonds from taxation.
B. The board of directors shall exercise all powers and duties in the acquisition and operation of the properties of the district and in carrying out its regulatory functions under this article as are ordinarily exercised by the governing body of a municipal corporation.
C. A district organized under this article, acting through its board of directors, may:
1. Acquire by eminent domain, purchase, donation, dedication, exchange or other lawful means rights‑of‑way for and construct, operate and maintain flood control works and storm drainage facilities within or without the district for the benefit of the district.
2. Acquire by eminent domain, purchase, donation, dedication, exchange or other lawful means and dispose of by sale, exchange or other lawful means real and personal property within the boundaries of the district.
3. Contract and join with this state, the United States or any other flood control district or floodplain board, municipality, political subdivision, governmental agency, irrigation or agricultural improvement district, association, corporation or individual in acquiring, constructing, maintaining and operating flood control works, and regulating floodplains.
4. Enter into contracts of indemnity to indemnify this state, the United States or any other flood control district, municipality, political subdivision, governmental agency, irrigation or agricultural improvement district, association, corporation or individual against liability by virtue of injuries, losses or damages occurring through the use of their facilities, structures, streets, rights‑of‑way or properties in connection with the operation of a flood control district and the regulation of floodplains.
5. Acquire and maintain existing flood control and drainage facilities within the district for the benefit of the district if mutually agreeable to the owners of such facilities.
6. Acquire, convert and maintain surplus irrigation facilities as storm drainage facilities if mutually agreeable to owners of such facilities.
7. Construct, maintain and operate flood control and storm drainage facilities and regulate floodplains in the district by agreement with this state, counties, other municipal corporations, political subdivisions and other persons and reimburse such agencies or persons for the cost of the work.
8. On the dissolution of any other flood control district, assume the assets and obligations of the other district.
9. Enter into intergovernmental agreements with other public agencies pursuant to title 11, chapter 7, article 3 to carry out the objects and purposes of the district.
10. Apply for, obtain, expend and repay flood control loans pursuant to title 45, chapter 8, article 5.
11. Apply to the director of water resources for alternative flood control assistance for flood control projects pursuant to section 45‑1471, except that the director shall not grant any such assistance for any project unless the director has approved the project in advance of planning.
12. Sue and be sued, enter into contracts and generally do all things which may be necessary to construct, acquire and maintain facilities, operate the district and perform its regulatory functions and which are in the interests of the district.
13. Adopt such rules and bylaws for its orderly operation as it sees fit.
14. Appoint a chief engineer and general manager, who may be the county engineer.
15. Appoint a treasurer, who may be the county treasurer, an attorney, who may be the county attorney, and other employees it considers desirable and necessary to carry out the purposes of the district. Any other work required by the district may be performed by regular employees of the county on assignment by the board of supervisors, except that regular county employees shall not undertake construction projects with an estimated cost of five thousand dollars or more.
16. Allow variances from the terms or regulations adopted pursuant to this article to the extent permitted by section 48‑3609, subsection B, paragraph 7 and if, owing to peculiar conditions, a strict interpretation would work an unnecessary hardship, if in granting the variance the general intent and purposes of this article and the regulations will be preserved.
17. Construct, operate and maintain artificial groundwater recharge facilities, and, if organized in a county having a population of more than five hundred thousand persons according to the most recent United States decennial census, underground storage and recovery facilities, if they have flood control benefits, and contract and join with the United States, this state and other governmental units for the purpose of constructing, operating and maintaining multipurpose groundwater recharge, underground storage and recovery and flood control facilities, except that a district shall not expend district funds for any underground storage and recovery facility that does not have flood control benefits.
18. Acquire real property by purchase, donation, dedication, exchange or other lawful means, except by eminent domain, in areas suitable for groundwater recharge projects.
19. Cooperate and join with other entities that engage in underground water storage and recovery projects under title 45, chapter 3, including multi‑county water conservation districts and other political subdivisions.
20. Either alone, or by entering into any combination of contracts with this state, the United States, any other flood control district, a floodplain board, a municipality or other political subdivision, a government agency, an irrigation or agricultural improvement district or an association, corporation or individual, implement flood control enhancement solutions including:
(a) Assistance for property owners within the floodplain and through the elevation, bank stabilization and flood proofing of existing structures.
(b) Preservation and restoration of the floodplain.
(c) Maintenance of flood warning systems and associated flood response plans.
21. Adopt and enforce civil penalties for violations of its regulations or ordinances and for unauthorized damage and interference to those district facilities that are authorized pursuant to this chapter.
22. Pursuant to the authority prescribed in this chapter, appoint hearing officers to hear and determine actions.
23. For any district that intends to take enforcement action pursuant to section 48-3615.01, adopt written rules of procedure for the hearing and review of decisions on actions prescribed by this chapter.
24. Establish a board of hearing review to review decisions of hearing officers that are issued pursuant to section 48-3615.01. The board of hearing review shall consist of one member from each board of directors' district or the board of directors may authorize the citizens' flood control advisory board or the board of review to designate a like number of its members to serve as the board of hearing review.
25. Authorize the chief engineer of the district to apply for and obtain administrative search warrants for entry and inspection from a local court of general jurisdiction to determine if violations of section 48-3609, 48-3613, 48-3614 or 48-3615 have occurred. A report of any inspections made pursuant to this section shall be prepared and made available in the records of the district and a copy mailed or otherwise delivered to the owner within fifteen days after the inspection of the owner's premises.
D. The board shall adopt and enforce floodplain regulations as provided in section 48‑3609.
E. The board may adopt a fee schedule for review of applications for permits and variances from or interpretations of the floodplain regulations.
F. The affirmative vote of a majority of the board of directors is necessary to approve any measure. One member may adjourn any meeting at which a quorum is not present.
G. The board shall keep a proper written record of all of its proceedings, which shall be open to public inspection.
H. The accounts of the district are subject to annual and other audits as provided by law.
I. Section 9‑403 does not apply to a flood control district organized under this article and section 9‑402 does not apply when the district is selling property to a political subdivision. If any property sold by the district to a political subdivision without complying with section 9‑402 is subsequently sold by the political subdivision as undeveloped property for a price exceeding the original sale price, the district shall be paid the difference between the original price and the subsequent sale price. For the purposes of this subsection, "political subdivision" means any incorporated city or town, school district, charter school, community college or university.
Sec. 2. Section 48-3615, Arizona Revised Statutes, is amended to read:
48-3615. Violation; classification; civil penalties; strict liability
A. It is unlawful for a person to engage in any development or to divert, retard or obstruct the flow of waters in a watercourse if it creates a hazard to life or property without securing the written authorization required by section 48‑3613. Where the watercourse is a delineated floodplain it is unlawful to engage in any development affecting the flow of waters without securing written authorization required by section 48‑3613.
B. A person who violates subsection a of this section is guilty of a class 2 misdemeanor.
C. A person who violates this chapter or rules adopted pursuant to this chapter may be assessed a civil penalty not to exceed the fine chargeable for a class 2 misdemeanor. Each day the violation continues constitutes a separate violation.
D. A person who without written authorization from the board of directors damages or interferes with a facility that is owned, operated or otherwise under the jurisdiction of the district is strictly liable for both of the following:
1. Any actual damages to persons or property that is caused by the damage or interference.
2. Payment of costs to the district for remediating the damage or interference.
Sec. 3. Title 48, chapter 21, article 1, Arizona Revised Statutes, is amended by adding sections 48-3615.01 and 48-3615.02, to read:
48-3615.01. Notice of violation; hearing; final decision; civil penalty; injunctive relief
A. If the chief engineer finds that a person has engaged or is engaging in development in the floodplain without a floodplain use permit, has engaged or is engaging in any development that is not in compliance with an active floodplain use permit or has damaged or interfered with facilities that are authorized pursuant to this chapter without written authorization of the board of directors, the chief engineer shall issue a notice of violation to the owner, occupant or manager of the real property on which the development is located or to the person who has damaged or interfered with the facilities. The notice of violation shall identify the violations observed and order the violator to cease and desist any ongoing activity that is not in compliance with the regulations adopted pursuant to this chapter or cease and desist any damage or interference that is not authorized by the board. The notice of violation shall include the date, time and place where the person responding to the notice of violation may appear to show cause why the notice of violation should be vacated.
B. On receipt of the notice of violation, the person may:
1. Admit the allegations by doing either of the following:
(a) Appearing in person, by attorney or by another designated representative at a time and location given in the notice of violation.
(b) Mailing or delivering to the chief engineer a form provided with the notice of violation or a written statement signed by the person in which the person admits the allegations, agrees to acquire any required permit and agrees to remedy the violation, damage or interference in accordance with the terms determined by the chief engineer.
2. Deny the allegations by doing either of the following:
(a) Appearing in person, by attorney or by another designated representative at the time and location given in the notice of violation.
(b) Mailing or delivering to the chief engineer a form provided with the notice of violation or a written statement signed by the person denying the allegations and requesting a hearing on the matter.
C. On request for a hearing, the hearing officer shall set a date, time and place for a hearing and serve a notice of hearing on the person alleged to be in violation and provide a notice of the hearing to the chief engineer. Service of notice shall be by personal delivery or certified mail, return receipt requested, or by any other method reasonably calculated to effect actual notice on the alleged violator, the chief engineer and every other party to the action.
D. The hearing officer shall be appointed by the board of directors and may be an employee of the district. Decisions of the hearing officer or by the board of hearing review shall be available to any party to the hearing. The board of directors shall adopt written rules of procedure for the hearing and review of hearings. These rules shall be adopted in the same manner as floodplain ordinances.
E. At the hearing, a representative of the district shall present evidence of the violation described in the notice of hearing. The county attorney may present evidence on behalf of the district. The noticed party or attorney or other designated representative shall be given the opportunity to present evidence at the hearing. After completion of the hearing, the hearing officer shall issue a written finding, a recommendation for the appropriate measures to be taken to abate or ameliorate any harm or damage arising from the violation and the imposition of any civil penalties attributed to the violation.
F. The hearing officer’s written finding shall be submitted to the chief engineer and the noticed party within thirty days after the date of the hearing. On receipt of the hearing officer’s findings, determination and recommendation, the chief engineer shall issue a final decision and order. The chief engineer’s final decision and order may be in any form as adopted by the board of directors pursuant to its authority under this chapter and may include a determination of violation, an order directing that measures be taken to abate or ameliorate any harm or damage arising from the violation and the imposition of a civil penalty.
G. On written request of any party who is subject to the decision and order of the chief engineer pursuant to this section, the board of hearing review may review any decision and order of the chief engineer. The written request for review shall be delivered to the clerk of the board of directors within fifteen days after the date of the final decision and order.
H. If the person alleged to be in violation continues the violation after the chief engineer has issued a final decision and order or after the board of hearing review has completed its review pursuant to this section, the chief engineer may apply for a temporary restraining order or preliminary or permanent injunction from the superior court according to the Arizona rules of civil procedure. A decision to seek injunctive relief does not preclude other forms of relief or enforcement against the violator. The remedies prescribed by this section are cumulative and do not prevent the district from seeking injunctive relief at any time.
I. The chief engineer may designate another person to carry out the chief engineer's powers and duties prescribed by this section and that designee is authorized to take all actions prescribed by this section in place of the chief engineer.
48-3615.02. Judicial review; remedies
The final decision of the board of hearing review is subject to judicial review pursuant to title 12, chapter 7, article 6. A district that has established civil penalties for violations of its regulations or ordinances or for damage or interference to its facilities is not precluded from pursuing other remedies provided by law.”
Amend title to conform