BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1929
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          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