BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1929
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          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.








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          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









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           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  








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          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.    








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           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