BILL ANALYSIS
AB 1929
Page 1
Date of Hearing: April 6, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1929 (Hall) - As Introduced: February 17, 2010
PROPOSED CONSENT
SUBJECT : INVASIVE AQUATIC SPECIES: MUSSELS
KEY ISSUE : SHOULD 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 BE IMMUNE FROM CIVIL AND CRIMINAL
LIABILITY FOR INTRODUCTION OF MUSSELS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial bill immunizes 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. A similar
bill, AB 804 (Hall), last year also attempted to immunize
operators who prepared and implemented a plan to control and
eradicate dreissenid mussels. That bill was vetoed by the
Governor who stated his concern that that bill would "shift
liability to the state for any ensuing damage resulting from the
spread of dreissenid mussels." In response to that veto
message, this bill also provides that neither the Department of
Fish and Game nor any other state agency exercising authority
under this section shall be liable with regard to any
determination or authorization. The bill is sponsored by the
Association of California Water Agencies and supported by
numerous water districts, with no known opposition. The sponsor
hopes the new version of the legislation addresses the
Governor's earlier concerns. The bill recently passed the
Assembly Water, Parks and Wildlife Committee on consent on a
12-0 vote.
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
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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; and
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 operations.
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.
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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.
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. Current law
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
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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.
BACKDROP : 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 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
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valuable state resources, including commercial and sport
fisheries.
Immunity Provisions : This bill would provide immunity from
civil or criminal liability to any operator of a water delivery
and storage facility for introduction of dreissenid mussels as a
result of those operations. Such immunity would only apply if
the operator has prepared and is in compliance with an approved
plan to control or eradicate mussels as required by existing
law. In addition, the bill 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 existing law in response the Governor's veto message
of the author's bill last year, AB 804.
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.
Prior Related Legislation. AB 804 (Hall) of 2009 which was
vetoed by the Governor, sought to remove an operator of water
delivery and storage facilities from civil and criminal
liability for the introduction of dreissenid mussels as a result
of their operations if that operator has prepared, initiated,
and is in compliance with all elements of their approved plan.
AB 2065 (Hancock), Chapter 667, Statutes of 2008, requires any
person, or federal, state or local agency, district or authority
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that owns or manages a reservoir where recreational, boating or
fishing activities are permitted to assess the vulnerability of
the reservoir to nonnative mussels and develop and implement a
program designed to prevent the introduction of nonnative
mussels. Violation of this section is subject only to an
administrative civil penalty of $1000, and not subject to the
criminal penalties or criminal enforcement otherwise applicable
to violations of the Fish and Game Code.
AB 1683 (Wolk), Chapter 419, Statutes of 2007, an urgency
measure, authorized DFG to conduct inspections and to order
quarantines, closures and decontaminations as required to
control dreissenid mussels. The bill also required water supply
system operators to cooperate with DFG to implement measures to
avoid, control or eradicate infestations, and required water
system operators to prepare and implement a control plan if
mussels were detected.
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
San Diego County Water Authority
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334