BILL ANALYSIS AB 1929 Page 1 Date of Hearing: March 23, 2010 ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE Jared William Huffman, Chair AB 1929 (Hall) - As Introduced: February 17, 2010 SUBJECT : Invasive Aquatic Species: Mussels SUMMARY : Provides that an operator of water delivery and storage facilities who has prepared and is in compliance with an approved plan to control and eradicate dreissenid mussels in accordance with existing law is immune from civil or criminal liability for introduction of mussels as a result of operation of those facilities, and exempts such operators from prohibitions on possession, importation, shipment or transport of mussels and related requirements. Specifically, this bill : 1)Provides that if the operator of water delivery or storage facilities for public water supply purposes prepares, initiates, and is in compliance with an approved plan to control and eradicate dreissenid mussels, in accordance with provisions of existing law, the following requirements shall not apply to the operation of those facilities: a) The requirement that a person shall not possess, import, ship, or transport in the state or cause to be placed or planted in any water within the state, dreissenid mussels, b) Provisions authorizing the director of the Department of Fish and Game (DFG) to order closures or quarantines, or restrict access to waters or facilities. 2)Provides that if DFG requires the operator of a facility to update its plan for control and eradication of dreissenid mussels, and the plan is not updated as required, the above requirements referenced under 1) shall apply until the operator updates or revises the plan, and initiates or complies with all of the elements of the plan. 3)Provides that the operator of water delivery or storage facilities for public water supply purposes that prepares, initiates and complies with all the elements of a plan to control and eradicate mussels in accordance with existing law shall be immune from civil or criminal liability for introduction of mussels as a result of operation of those facilities. AB 1929 Page 2 4)Requires that plans for control of dreissenid mussels adopted by water supply system operators contain an element that requires the operator to permit inspections by DFG as well as to cooperate with DFG in updating or revising the plan to address scientific advances in the methods for controlling mussels. 5)Provides that neither DFG nor any other state agency exercising authority under this section shall be liable with regard to any determination or authorization made pursuant to this section. 6)Makes various legislative findings and declarations regarding quagga mussels and the need to protect water agencies from liability. EXISTING LAW : 1)Makes it unlawful to possess, import, ship, transport, or place dreissenid mussels in any water within the state. 2)Authorizes DFG to conduct inspections of conveyances, waters, and water facilities that may contain mussels, and to order closures, quarantines and disinfections if mussels are detected. 3)Prohibits a closure or quarantine from being imposed by the DFG director without the concurrence of the Secretary of Natural Resources. 4)Requires water supply agencies to cooperate with DFG to implement measures to avoid infestation and to control or eradicate any infestations that occur. 5)Requires water supply system operators, if mussels are detected, to prepare and implement plans to control or eradicate mussels, and to update the plans as required by DFG. FISCAL EFFECT : Unknown AB 1929 Page 3 COMMENTS : This bill is substantially the same as AB 804 (Hall) of last year which was vetoed by the Governor. AB 804 passed the Legislature unanimously without a single no vote. The one difference between this bill and AB 804 is that, in addition to providing immunity for water supply operators, this bill also provides that, pursuant to Government Code Section 818.4, neither DFG nor any other state agency exercising authority under this section shall be liable with regard to any determination or authorization made pursuant to this section. Government Code Section 818.4 immunizes public entities from liability for injury caused by discretionary decisions of the agency as to whether to grant an authorization. The Fish and Game Code section in question here authorizes DFG to conduct inspections, to order closures, quarantines and disinfections, and to take other related actions to prevent the spread of invasive mussels, including assisting water supply operators in preparing and implementing control plans. The language also implies that DFG would approve the plans, since the language refers to "approved" plans, though this is not explicit. The new language would immunize DFG, as well as water supply operators, from liability for authorized actions taken under this section to prevent the spread of invasive mussels. The Governor in his veto message last year raised a concern that AB 804 shifted liability to the state. Specifically, the Governor stated that: "?the effect of this bill would be to relieve water operators from having to continue to act responsibly once they initially have an approved response plan in place, thereby shifting liability to the state for any ensuing damage resulting from the spread of dreissenid mussels. The presence of an approved plan does not ensure that subsequent actions taken by that water agency will be consistent with that plan, nor should these entities be immunized from liability for their subsequent actions." (emphasis added). The new provision in this bill seeks to address the Governor's concern by preventing liability from being shifted to the state. Dreissenid mussels, which include quagga and zebra mussels, are highly invasive species that were first discovered in the United States in the Great Lakes region in 1988, where they have caused billions of dollars in damage control costs to public agencies and private industry. Quagga mussels were first discovered in California in January of 2007 in Lake Havasu, and have since spread through the Colorado River Aqueduct to reach several southern California reservoirs. Zebra mussels were first detected in California in January of 2008 in Hollister's San AB 1929 Page 4 Justo Reservoir in San Benito County. The San Justo Reservoir gets its water from the San Luis Reservoir which is used jointly by the federal Central Valley Project and the California State Water Project. Both of these invasive species reproduce rapidly and in large numbers, and can severely hinder water delivery systems due to their capacity to clog pipes, pumps and other water intake structures. They also harm aquatic ecosystems by consuming plankton and other nutrients that form the primary base of the food chain. Based on the billions of dollars in damages caused by dreissenid mussels in the Great Lakes region, these invasive species could seriously threaten California's entire irrigation network, and the canal system that transports drinking water for millions of Southern California residents. According to the state's Aquatic Invasive Species plan, if a mussel invasion is not prevented, the economic and social consequences to California may be incalculable. In addition to the state's natural ecosystems and water conveyance systems, a mussel invasion threatens other valuable state resources, including commercial and sport fisheries. The Association of California Water Agencies (ACWA) has introduced this bill to limit water agency liability for damages caused by dreissenid mussels. ACWA asserts this bill is necessary to ensure that water system operators and their employees, who are observing current legal requirements to control or eradicate quagga mussels, are not subject to unwarranted civil or criminal penalties. They also note that even when a water system operator diligently implements a sound plan, complete eradication is not guaranteed or likely. The legislative findings in this bill further note that given the likely impossibility of completely eradicating mussel infestations from large water bodies, and the fact that water delivery systems are essential to maintain public health and safety, implementation of available measures to control and prevent the spread of mussels to new water bodies is all that should reasonably be required of water supply agencies. For these reasons, the author and sponsor believe that criminal and civil penalties are an inappropriate response to owners and operators who are pursuing a control and eradication plan and who are in compliance with the requirements of current law. Note: This bill is double-referred to Assembly Judiciary Committee. AB 1929 Page 5 REGISTERED SUPPORT / OPPOSITION : Support Association of California Water Agencies (sponsor) Alameda County Flood Control and Water Conservation District, Zone 7 Alameda County Water District California Central Valley Flood Control Association East Bay Municipal Utility District Eastern Municipal Water District Santa Clara Valley Water District Opposition None on file Analysis Prepared by : Diane Colborn / W., P. & W. / (916) 319-2096