BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1558 (Eng and Hernandez)
As Introduced
Hearing Date: June 19, 2012
Fiscal: No
Urgency: No
BCP:rm
SUBJECT
Liability: Flood Control and Water Conservation Facilities
DESCRIPTION
Existing law provides, until January 1, 2013, a conditional
immunity from liability for a public agency, and its employees,
operating flood control and water conservation facilities for
injuries caused by the condition or use of unlined flood control
channels or adjacent groundwater recharge spreading grounds.
This bill would remove the sunset date, thereby extending the
immunity indefinitely.
BACKGROUND
The San Gabriel Valley relies upon an underground water supply
as the primary source of drinking water for its population of
over two million people. In addition to the flow from the State
Water Project and the Colorado River, the San Gabriel Valley
Water Basin (Basin) is recharged/refilled with rainfall runoff
and local storm water conserved by the Los Angeles County
Department of Public Works (LACDPW), which delivers the water to
streambeds in the Basin where the water sinks in and becomes
groundwater. The LACDPW was and continues to be concerned about
liability that may arise from this groundwater replenishment
process.
In the 1990's, USG-3, an unlined flood control channel owned by
LACDPW, was enlarged to double its capacity to deliver water to
the San Gabriel Valley. Due to liability concerns, LACDPW
limited the amount of water transferred and spread through
(more)
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USG-3, and, by 1998, the flow of recharge water was insufficient
to meet the demands placed upon the water table.
AB 2023 (Gallegos, Chapter 659, Statutes of 1998), sponsored by
the San Gabriel Water Association, addressed the liability
concerns by conferring a conditional immunity for injuries
occurring in its unlined flood control channels or adjacent
groundwater recharge spreading grounds. That conditional
immunity expired January 1, 2002. It was extended to January 1,
2007, by AB 92 (Chavez, Chapter 756, Statutes of 2001). AB 92
also required, as a condition of immunity, that the LACDPW post
conspicuous signs warning of any increase in waterflow levels.
Although the immunity lapsed in 2007, AB 1903 (Hernandez,
Chapter 633, Statutes of 2008), reinstated the conditional
immunity until January 1, 2013, required LACDPW to maintain a
record of injuries and claims, and required the Judicial Council
to submit a report on those matters by January 31, 2012.
This bill would remove the January 1, 2013 sunset date, thereby
permanently extending the conditional immunity.
CHANGES TO EXISTING LAW
Existing law provides a conditional immunity to public entities,
irrigation districts, and the state, and to their employees,
from liability for any injury caused by the condition of
reservoirs, canals, conduits, or drains used for the
distribution of water if, at the time of the injury, the person
injured was using the property for any purpose other than that
for which the public entity, the district, or the state
intended. (Gov. Code Sec. 831.8.)
Existing law , until January 1, 2013, provides a conditional
immunity to a qualifying public agency (LACDPW), and its
employees, that operate flood control and water conservation
facilities for any injury caused by the condition or use of
unlined flood channels or adjacent groundwater recharge
spreading grounds if, at the time of the injury: 1) the injured
person was using the property for a purpose other than that for
which the public agency intended it to be used; and 2) the
public agency had posted conspicuous signs warning of any
increase in waterflow levels of an unlined flood control channel
or any spreading ground receiving water. (Gov. Code Sec. 831.8
(c).)
Existing law , until January 1, 2013, provides that nothing in
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the above immunity provision exonerates a public agency or
public employee from liability for injury proximately caused by
a dangerous condition of property if:
the injured person is less than 12 years of age;
the dangerous condition created a substantial and unreasonable
risk of death or serious bodily harm to children under 12
using the property or adjacent property with due care in a
manner reasonably foreseeable;
the injured person, because of his or her immaturity, did not
discover the condition or did not appreciate its dangerous
character; and
the public entity or public employee had actual knowledge of
the condition and knew or should have known of its dangerous
character a sufficient time prior to the injury to have taken
measures to protect against the condition. (Gov. Code Sec.
831.8 (e).)
Existing law provides that nothing in Section 831.8 exonerates a
public entity or public employee from liability proximately
caused by a dangerous condition of property if:
the injured person was not guilty of a criminal offense, such
as trespassing;
the condition presented created a substantial and unreasonable
risk of death or serious bodily harm when the property or
adjacent property was used with due care in a manner in which
it was reasonably foreseeable that it would be used;
the dangerous character of the condition was not reasonably
apparent to, and would not have been anticipated by, a mature,
reasonable person using the property with due care; and
the public entity or public employee had actual knowledge of
the condition and knew or should have known of its dangerous
character a sufficient time prior to the injury to have taken
measures to protect against the condition. (Gov. Code Sec.
831.8 (d).)
This bill would strike the January 1, 2013 sunset date for the
above provisions, thereby extending the immunity indefinitely.
COMMENT
1. Stated need for the bill
According to the author:
Los Angeles County relies on the replenishing of underground
aquifers by LACDPW to ensure adequate water supply for the
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growing population. Flows from the State Water Project,
Colorado River, and local watersheds are routed through
rivers and channels, and captured at groundwater recharge
facilities (spreading grounds) for local infiltration into
the groundwater basins. Flood control and groundwater
recharge are integral to effective water resources
management.
Existing law, established by AB 2023 (1998) and continued by
AB 92 (2001) and AB 1903 (2008) establish conditional
liability protection to LACDPW for its operations at unlined
channels, and adjacent groundwater recharge facilities until
January 1, 2013.
Nearly five million acre-feet of water have been transported
by LACDPW to recharge aquifers since liability protection
was adopted in 1998 and has helped meet the annual water
needs of over ten million households during that period. It
is imperative that continued flood control and groundwater
recharge activities continue with appropriate liability
protection in order to effectively manage our local water
resources and continue the sustainability of the local water
supplies.
AB 1558 makes permanent the previously adopted conditional
liability provisions for the Los Angeles County Department
of Public Works (LACDPW), to ensure that local water
supplies remain sustainable and unthreatened by individuals
who ignore warning signs and are injured for using flood
control and water conservation facilities in a manner they
were never intended.
2. No qualifying incidents reported nor related civil actions
filed
This bill would permanently extend a conditional immunity
conferred on qualifying public agencies (and their employees)
that operate flood control and water conservation facilities for
injuries caused by the condition or use of unlined flood control
channels or adjacent groundwater recharge spreading ground. To
facilitate the evaluation of that sunset provision, the prior
bills that conferred that immunity also included specific
reporting requirements in order to inform the Legislature's
decision about whether to either let the provision sunset, or to
extend or remove the sunset. (It should be noted that although
it is worded generally, LACDPW is the only public entity that
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qualifies for the immunity.)
Accordingly, the LACDPW was required to maintain a record of all
known or reported injuries incurred by the public in unlined
flood control channels or adjacent groundwater recharge
spreading grounds during the activities of groundwater recharge.
LACDPW was also required to maintain a record of all claims
arising from those incidents and file copies of those records
with the Judicial Council. The Judicial Council was required to
submit a report regarding those claims to the legislature on or
before January 31, 2012. As a result of those detailed
reporting requirements, the Legislature would arguably be
informed of any potential injuries for which the LACDPW could be
immunized from liability, thus, informing the legislative
decision with respect to the sunset extension.
In this case, the Judicial Council's May 23, 2012 report summary
notes that:
In accordance with Assembly Bill 1903, the �LACDPW] has
maintained records of any injuries sustained by members of
the public, and the results of any civil actions ensuing
from such injuries, in the unlined flood control channels
and adjacent groundwater recharge spreading grounds in Los
Angeles County. Qualifying injuries include those that occur
during groundwater recharge activities, while records of
civil actions include all civil claims that are paid or
unpaid arising from such incidents.
The �LACDPW] reports that no qualifying incidents were
reported nor related civil actions filed during the
reporting period of January 1, 2007, through December 31,
2011.
As a result, it appears that the LACDPW complied with their
statutory obligations to maintain records of injuries, and that
there were no incidents or civil actions during the five year
time period during which those records were kept. Similarly,
this committee's analysis for AB 1903 (Hernandez, Chapter 633,
Statutes of 2008), which reinstated the conditional immunity,
noted:
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In 2006, the �Judicial Council] issued its report, Flood
Control and Water Conservation Liability, which covers
incidents between 2001 and 2005. The report states that there
is no record of any claims or lawsuits filed with LACDPW
related to injuries or deaths in unlined flood control
channels or adjacent spreading grounds during calendar years
2001-2005. The report also states that there was one car
accident with minor injuries adjacent to a flood channel; an
accidental drowning near the flood control basin of Santa Fe
Dam; and two apparent suicides. The report also notes,
however, that filings and disposition data received by the
�Judicial Council] "do not allow for the identification of
civil cases related to injuries or deaths occurring in the
types of facilities specified by �GC Sections 831.8 or
831.9]." The report further states that the �Judicial
Council] conducted a search of Westlaw and Lexis databases,
which did not reveal any case filings in California involving
injuries in unlined flood control channels.
Considering the lack of incidents in the unlined flood control
channels and adjacent spreading grounds during the nearly 10
years of reporting, the proposed removal of the sunset arguably
appears appropriate.
3. Orange County Board of Supervisors
It should be noted that although it is worded generally, the
immunity extended by this bill only applies to the LACDPW
because its flood control facilities are unique in also being
used for water conservation. The Orange County Board of
Supervisors, in a support if amended position, notes that:
As currently written, this bill provides liability exemption
for a public entity for an injury caused by the condition of
a reservoir; the main goal is for the protection of the
public entity where misuse or trespassing occurs. This
exception applies to a public agency that operates and
maintains dams and appurtenant facilities to provide flood
control protection and water conservation for a county whose
population exceeds nine million residents (i.e., Los Angeles
County). In order for �the Orange County Flood Control
District (OCFCD)] to qualify for the liability exemption
provision, the County recommends an amendment to decrease
the population threshold to three (3) million residents in
Section 831.8(c)(1).
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Staff notes that it is unclear whether decreasing the threshold
to three million residents would apply the immunity to entities
other than OCFCD and whether there are any factors unique to
OCFCD that may make such immunity problematic. Considering that
the conditional immunity conferred upon LACDPW has been subject
to extensive review, it is unclear whether it would be
appropriate to expand this bill to cover OCFCD without a similar
review.
Support : American Council of Engineering Companies of
California; California Special Districts Association; California
State Association of Counties; Central Basin Water Association;
San Gabriel Valley Municipal Water District; San Gabriel Valley
Water Association; Three Valleys Municipal Water District; Upper
San Gabriel Valley Municipal Water District; Water Replenishment
District of Southern California
Opposition : None Known
HISTORY
Source : Los Angeles County Board of Supervisors
Related Pending Legislation : None Known
Prior Legislation :
AB 2023 (Gallegos, Chapter 659, Statutes of 1998) See Background
and Comment 1.
AB 92 (Chavez, Chapter 756, Statutes of 2001) See Background and
Comment 1.
AB 1903 (Hernandez, Chapter 633, Statutes of 2008) See
Background and Comments 1 and 2.
Prior Vote :
Assembly Judiciary Committee (Ayes 8, Noes 0)
Assembly Floor (Ayes 78, Noes 0)
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