BILL NUMBER: SB 1201 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 9, 2012
INTRODUCED BY Senator De León
FEBRUARY 22, 2012
An act to add Section 831.22 to, and to add and
repeal Section 12805.7 of, of the
Government Code, and to amend Section 2 of the Los Angeles County
Flood Control Act (Chapter 755 of the Statutes of 1915), relating to
the Los Angeles River.
LEGISLATIVE COUNSEL'S DIGEST
SB 1201, as amended, De León. Los Angeles River.
(1) The Tort Claims Act provides for the liability and immunity of
a governmental entity for its acts or omissions that cause harm to
persons. The act provides that neither a public entity nor a public
employee is liable for an injury caused by the plan or design for the
construction of, or an improvement to, public property where the
plan or design has been approved in advance by the legislative body
of the public entity or by some other body or employee exercising
discretionary authority to give approval, or where the plan or design
is prepared in conformity with standards previously approved, if the
court makes specified determinations.
This bill, for purposes of that act, would require stretches of
navigable rivers with unpaved riverbeds to be deemed to be in a
natural condition and unimproved notwithstanding that the river has
been channelized or otherwise modified. That provision would be
applicable to causes of action based upon acts or omissions occurring
on or after January 1, 2012.
(2) Existing
Existing law establishes in state government the
Natural Resources Agency, consisting of various departments,
including the Department of Fish and Game and the State Lands
Commission.
The Los Angeles County Flood Control Act establishes the Los
Angeles County Flood Control District and authorizes the district to
control and conserve the flood, storm, and other wastewater of the
district.
This bill, until January 1, 2016, would establish in state
government the Los Angeles River Interagency Access Council, with
membership to include the above agencies, the California
Environmental Protection Agency, and certain
municipalities, and M embers of the Legislature,
and to be chaired by the Secretary of the Natural Resources
Agency, to coordinate the actions of state and local agencies with
jurisdiction over, or otherwise involved in developing and
administering public access and safety policies for, the Los Angeles
River. The bill would specify that rules governing the liability
of public employees and rules requiring public agencies to conduct
open meetings apply to the council. The bill would require the
council to seek the maximum participation of all parties affected by
the Los Angeles River, as specified, and the bill would authorize the
council to establish technical or other advisory committees to
achieve this goal. The bill would also prohibit the council from
acquiring an interest in land or water, and from assuming
any powers reserved to local jurisdictions.
The bill would amend the Los Angeles County Flood Control Act to
include in the objects and purposes of the district to provide for
public use of navigable waterways under the district's control that
are suitable for recreational and educational purposes.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The United States Environmental Protection Agency's
July 2010 designation of the Los Angeles River as a "Traditional
Navigable Water" under the federal Clean Water Act (33 U.S.C. Sec.
1251 et seq.), combined with the demonstrated recreational
navigability of the river, means that the river is subject to Section
4 of Article X of the California Constitution, which guarantees the
public a right of access to the navigable waters of the state, and
therefore the river must be held in trust for the public and managed
for public access and use.
(b) The public's interest in use of the Los Angeles River for
recreational and educational purposes continues to increase
dramatically. However, since the river was channelized, it has been
managed for flood control purposes without adequate provision for
public access and use.
(c) The current regulation and inconsistent enforcement of public
access to the Los Angeles River by multiple state and federal
agencies is inadequate to ensure the public's right of access to the
river in a safe manner, particularly considering the lack of a
comprehensive safety warning system.
(d) The California Tort Claims Act (Division 3.6 (commencing with
Section 810) of Title 1 of the Government Code) does not provide
immunity to government agencies and officials that diligently
exercise their responsibilities in managing the river for public
access and use comparable to that provided by the Legislature for
other recreation areas.
SEC. 2. Section 831.22 is added to the
Government Code, to read:
831.22. (a) Stretches of navigable rivers with unpaved riverbeds
shall be deemed to be in a natural condition and unimproved
notwithstanding that the river has been channelized or otherwise
modified.
(b) Notwithstanding subdivision (a), this section does not limit
liability that would otherwise exist for any of the following:
(1) Failure of the public entity or employee to guard or warn of
the existence of any condition that constitutes a hazard to health or
safety in the river area, including, but not limited to, flooding
danger, known to the public entity or employee that is not reasonably
assumed by the participant as inherently a part of the activity out
of which the damage or injury arose.
(2) Injury suffered to the extent proximately caused by the
negligent failure of the public entity or public employee to properly
construct or maintain in good repair any structure, recreational
equipment or machinery, or substantial work of improvement utilized
in the river area out of which the damage or injury arose.
(3) An act of gross negligence by a public entity or a public
employee that is the proximate cause of the injury.
(c) This section shall only be applicable to causes of action
based upon acts or omissions occurring on or after January 1, 2012.
SEC. 3. SEC. 2. Section 12805.7 is
added to the Government Code, to read:
12805.7. (a) There is hereby established in state government the
Los Angeles River Interagency Access Council to coordinate the
actions of state and local agencies with jurisdiction over, or
otherwise involved in developing and administering public access and
safety policies for, the Los Angeles River with membership as
follows:
(1) The Los Angeles County Flood Control District.
(2) The State Lands Commission.
(3) The California Environmental Protection Agency.
(4) The Department of Fish and Game.
(5) The City of Los Angeles.
(6) The City of Long Beach.
(7) Any other local government, upon request of that local
government.
(8) A Member of the Assembly, appointed by the Speaker of the
Assembly, from a district through which the Los Angeles River
traverses.
(9) A Member of the Senate, appointed by the Senate Committee on
Rules, from a district through which the Los Angeles River traverses.
(b) The Secretary of the Natural Resources Agency or his or her
designee shall chair the council.
(c) The council shall do all of the following:
(1) Designate areas of the Los Angeles River suitable for public
use, considering both recreational and educational activities as well
as public safety.
(2) Identify and eliminate barriers to public use.
(3) Provide for coordinated permitting for such uses for which a
permit shall be deemed necessary.
(4) Provide safety warning systems and signage to ensure the
safety of public users.
(5) Address environmental justice concerns regarding access to the
Los Angeles River.
(d) All claims for money or damages against the council are
governed by Division 3.6 (commencing with Section 810) of Title 1, or
by other applicable law.
(e) All meetings of the council shall be held in accordance with
Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of
Title 5, and shall be held at times and in locations that are
convenient to the public.
(f) The council shall seek the maximum participation of all
parties affected by the Los Angeles River, including local government
agencies, conservation organizations, business and civic groups, and
affected residents. To achieve this goal, the council may establish
technical or other advisory committees.
(g) The council may not acquire an interest in land or water.
(h) The council may not assume any powers reserved to local
jurisdictions.
(d)This
(i) This section shall remain in
effect only until January 1, 2016, and as of that date is repealed,
unless a later enacted statute, that is enacted before January 1,
2016, deletes or extends that date.
SEC. 4. SEC. 3. Section 2 of the Los
Angeles County Flood Control Act (Chapter 755 of the Statutes of
1915), as amended by Section 1 of Chapter 602 of the Statutes of
2010, is amended to read:
Sec. 2. The objects and purposes of this act are to provide for
the control and conservation of the flood, storm and other waste
waters of said district, and to conserve these waters for beneficial
and useful purposes by spreading, storing, retaining or causing to
percolate into the soil within the district, or to save or conserve
in any manner, all or any of these waters, and to protect from damage
from flood or storm waters, the harbors, waterways, public highways
and property in the district, and to provide for public use of
navigable waterways under the district's control that are suitable
for recreational and educational purposes.
The Los Angeles County Flood Control District is hereby declared
to be a body corporate and politic, and has all the following powers:
1. To have perpetual succession.
2. To sue and be sued in the name of the district in all actions
and proceedings in all courts and tribunals of competent
jurisdiction.
3. To adopt a seal and alter it at pleasure.
4. To take by grant, purchase, gift, devise or lease, hold, use,
enjoy, and to lease or dispose of real or personal property of every
kind within or without the district necessary to the full exercise of
its power.
5. To acquire or contract to acquire lands, rights-of-way,
easements, privileges and property of every kind, and construct,
maintain and operate any and all works or improvements within or
without the district necessary or proper to carry out any of the
objects or purposes of this act, and to complete, extend, add to,
repair or otherwise improve any works or improvements acquired by it
as herein authorized. Construction or improvement of existing
facilities may involve landscaping and other aesthetic treatment in
order that the facility will be compatible with existing or planned
development in the area of improvement.
6. To exercise the right of eminent domain, either within or
without the district, to take any property necessary to carry out any
of the objects or purposes of this act.
7. To incur indebtedness, and to issue bonds in the manner herein
provided.
7a. To borrow money from the United States of America, any agency
or department thereof, or from any nonprofit corporation, organized
under the laws of this state, to which the Reconstruction Finance
Corporation, a corporation organized and existing under and by virtue
of an act of Congress, entitled "Reconstruction Finance Corporation
Act," or other agency, or department, of the United States
government, has authorized, or shall hereafter authorize, a loan to
enable nonprofit corporation to lend money to the Los Angeles County
Flood Control District, for any flood control work authorized under
this act, and to repay the same, in annual installments, over a
period of not to exceed twenty (20) years, with interest at a rate of
not to exceed four and one-fourth per centum (41/4%) per annum,
payable semiannually, and, without the necessity of an election when
authorized by resolution of the board of supervisors, as evidences of
that indebtedness, the district is hereby authorized to execute and
deliver a note, or a series of notes, or bonds, or other evidences of
indebtedness, signed by the chairperson of the board of supervisors
of the district, which notes, bonds, or other evidences of
indebtedness, shall be negotiable instruments if so declared in the
resolution of the board of supervisors providing for their issuance,
and notes, bonds, or other evidences of indebtedness, may have
interest coupons attached to evidence interest payments, signed by
the facsimile signature of the chairperson of the board. All
applications for these loans shall specify the particular flood
control work or projects for which the funds will be expended, and
when received, the money shall be deposited in a special fund, and
shall be expended for those purposes only which are described and
referred to in the applications. If a surplus remains after the
completion of the work, the surplus shall be applied to the payment
of the note, notes, bonds, or other evidences of indebtedness,
executed as aforesaid, for the loan including interest coupons. The
board of supervisors shall annually levy a tax upon the taxable real
property of the district, clearly sufficient to pay the interest and
installments of principal, as the same shall become due and payable,
under any loan made pursuant to the authority of this section, and to
create and maintain a reserve fund to assure the prompt payment
thereof, as may be provided by resolution of the board of
supervisors. However, the amount of taxes levied in any year,
pursuant to this subsection, shall, pro tanto, reduce the authority
of the board of supervisors, during any year, to levy taxes under
Section 14 of this act, but this proviso shall not be a limitation
upon the power and duty to levy and collect taxes under this
subsection. Notwithstanding any other provisions of law, interest
earned on funds representing the proceeds of bonds of the district
shall be deposited and retained in the reserve fund of the district
to meet the principal and interest falling due on these bonds.
Notwithstanding anything in this subsection to the contrary, the
total amount the district may borrow under the authority of any or
all of the provisions of this subsection is limited to and shall not
exceed in the aggregate the sum of four million five hundred thousand
dollars ($4,500,000).
7b. The power granted in the next preceding subsection is hereby
extended to authorize the issuance and sale of bonds or other
evidences of indebtedness of the district to the County of Los
Angeles and the purchase thereof by the county in accordance with "An
act authorizing the investment and reinvestment and disposition of
any surplus moneys in the treasury of any county, city and county,
incorporated city or town or municipal utility district or flood
control district," approved April 23, 1913, as amended; all subject
to the provisions and limitations of the next preceding subsection
relative to the disposition and use of funds, interest rate, period
of repayment, tax rate and mode of issuance. The total amount of
bonds or other evidence of indebtedness, in the aggregate, which the
district may issue and sell under the authority of subsection 7a and
of this subsection is limited to and shall not exceed four million
five hundred thousand dollars ($4,500,000).
8. To cause taxes to be levied and collected for the purpose of
paying any obligation of the district in the manner provided in this
section.
8a. To impose a fee or charge, in compliance with the applicable
provisions of Article XIII D of the California Constitution, to pay
the costs and expenses of carrying out projects and providing
services to improve water quality and reduce stormwater and urban
runoff pollution in the district in accordance with criteria
established by the ordinance adopted pursuant to subsection 8c. Any
fee that is imposed pursuant to this subsection shall be levied and
collected together with, and not separately from, taxes for county
purposes, and the revenues derived from the fees shall be paid into
the county treasury to the credit of the district, and the board of
supervisors shall expend these funds to pay for costs and expenses in
accordance with this subsection.
8b. The district shall allocate the revenues derived from any fee
or charge imposed pursuant to subsection 8a as follows:
(A) Ten percent shall be allocated to the district for
implementation and administration of water quality programs, as
determined by the district, including activities such as planning,
water quality monitoring, and any other related activities, and for
payment of the costs incurred in connection with the levy and
collection of the fee and the distribution of the funds generated by
imposition of the fee, as established by the ordinance adopted
pursuant to subsection 8c.
(B) Forty percent shall be allocated to cities within the
boundaries of the district and to the County of Los Angeles, in the
same proportion as the amount of fees collected within each
jurisdiction and within the unincorporated territories, to be
expended by those cities within the cities' respective jurisdictions
and by the County of Los Angeles within the unincorporated
territories that are within the boundaries of the district, for water
quality improvement programs, as established by the ordinance
adopted pursuant to subsection 8c.
(C) Fifty percent shall be allocated to nine watershed authority
groups that shall be authorized by the ordinance adopted pursuant to
subsection 8c, in the same proportion as the amount of fees collected
within each watershed, to implement collaborative water quality
improvement plans or programs in the watersheds as established by the
ordinance adopted pursuant to subsection 8c. Those nine watershed
authority groups shall be established for the Ballona Creek,
Dominguez Channel, Upper Los Angeles River, Lower Los Angeles River,
Rio Hondo, Upper San Gabriel River, Lower San Gabriel River, Santa
Clara River, and Santa Monica Bay watersheds. The watershed authority
groups shall be established pursuant to Article 1 (commencing with
Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government
Code. The implementation of a collaborative water quality
improvement plan or program by a watershed authority group shall
require the consent of any watershed authority group member whose
jurisdiction comprises more than 40 percent of the total land area in
a watershed.
8c. The governing board of the district shall adopt an ordinance
to implement the authority granted pursuant to subsections 8a and 8b.
9. To make contracts, and to employ for temporary services only,
expert appraisers, consultants and technical advisers, and to do all
acts necessary for the full exercise of all powers vested in the
district, or any of the officers thereof, by this act.
10. To grant or otherwise convey to counties, cities and counties,
cities or towns easements for street and highway purposes, over,
along, upon, in, through, across or under any real property owned by
the Los Angeles County Flood Control District.
11. To remove, carry away and dispose of any rubbish, trash,
debris or other inconvenient matter that may be dislodged,
transported, conveyed or carried by means of, through, in, or along
the works and structures operated or maintained hereunder and
deposited upon the property of the district or elsewhere.
12. To pay premiums on bonds of contractors required under any
contract if the amount payable to the contractor exceeds five million
dollars ($5,000,000); provided, that the specifications in these
cases shall specifically so provide and state that the bidder shall
not include in his or her bids the cost of furnishing the required
bonds.
13. To lease, sell or dispose of any property (or any interest
therein) whenever in the judgment of the board of supervisors of the
property, or any interest therein or part thereof, is no longer
required for the purposes of the district, or may be leased for any
purpose without interfering with the use of the same for the purposes
of the district, and to pay any compensation received therefor into
the general fund of the district and use the same for the purposes of
this act. However, nothing herein shall authorize the board of
supervisors or other governing body of the district or any officer
thereof to sell, lease or otherwise dispose of any water, water
right, reservoir space or storage capacity or any interest or space
therein except to public agencies for recreational purposes when the
use is not inconsistent with the use thereof by the district for
flood control and water conservation purposes; or except as provided
by Section 17 of this act. However, the district may grant and convey
to the United States of America, or to any federal agency authorized
to accept and pay for the land or interests in land, all lands and
interests in land, now owned or hereafter acquired, lying within any
channel, dam or reservoir site, improved or constructed, in whole or
in part, with federal funds, upon payment to the district of sums
equivalent to actual expenditures made by it in acquiring the lands
and interests in land so conveyed and deemed reasonable by the
Secretary of War and the Chief of Engineers.
14. To provide, by agreement with other public agencies or private
persons or entities or otherwise, for the recreational use of the
lands, facilities, and works of the district which shall not
interfere, or be inconsistent, with the primary use and purpose of
the lands, facilities, and works by the district.
15. In addition to its other powers, the district shall have the
power to preserve, enhance, and add recreational features to its
properties and upon a finding by the board of supervisors that the
acquisition is necessary for those purposes, to acquire, preserve,
enhance, and add recreational features to lands or interests in lands
contiguous to its properties, for the protection, preservation, and
use of the scenic beauty and natural environment for the properties
or the lands and to collect admission or use fees for the
recreational features where deemed appropriate.
The district by or through its board of supervisors, or other
board or officers at any time succeeding to the duties or functions
of its board of supervisors, is hereby authorized and empowered to
warrant and defend the title to all land and interests therein so
conveyed to the United States of America or to any agency and its
respective assigns; to covenant and agree to indemnify and keep
indemnified and to hold and save harmless and exonerated the United
States of America or any agency, to which lands or any interest
therein are so conveyed by the district, from and against all
demands, claims, liabilities, liens, actions, suits, charges, costs,
loss, damages, expenses and attorneys' fees of whatsoever kind or
nature, resulting from, arising out of or occasioned by any defect or
defects whatsoever in the title to any land or interest in land so
conveyed by the district; to reimburse and save harmless and
exonerated the United States of America or any agency for any and all
amounts, paid, and expenses incurred, in the compromise or
settlement of any demands, claims, liabilities, liens, actions,
suits, charges, costs, loss, damages, expenses and attorneys' fees of
whatsoever kind or nature, resulting from, arising out of or
occasioned by any claim to or defect or defects whatsoever in the
title to any land or interests in land so conveyed by the district;
to pay all just compensation, costs and expenses, which may be
incurred in any condemnation proceeding deemed necessary by the
United States of America or that agency, in order to perfect title to
any land or interests in land, including without limitation all
attorneys' fees, court costs and fees, costs of abstracts and other
evidences of title, and all other costs, expenses or damages incurred
or suffered by the United States of America or that agency; and
consent is hereby given to the bringing of suit or other legal
proceedings against the district by the United States of America or
that agency, as the case may be, in the proper district court of the
United States, upon any cause of action arising out of any
conveyance, contract or covenant made or entered into by the district
pursuant to the authority granted in this act, or to enforce any
claims, damages, loss or expenses arising out of or resulting from
any defect whatsoever in the title to the land or any interest
therein or any claims of others in or to the land or interest
therein.