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.
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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
AB 1929
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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.
AB 1929
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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