BILL ANALYSIS
-----------------------------------------------------------------
| |
| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
| |
-----------------------------------------------------------------
BILL NO: AB 1929 HEARING DATE: June 29, 2010
AUTHOR: Hall URGENCY: No
VERSION: As introduced CONSULTANT: Katharine Moore
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Invasive aquatic species: mussels.
BACKGROUND AND EXISTING LAW
Dreissenid - including both zebra and quagga - mussels are
non-native, fecund and highly invasive freshwater species that
present considerable risk to the water bodies, rivers, streams
and engineered water systems of California. The mussels can
attach themselves to exposed surfaces and form colonies with
densities in excess of 70,000 mussels per square foot. These
colonies can effectively clog piping, and foul screens and water
intakes, causing significant maintenance costs for water
treatment and other affected systems. Recreational activities
also suffer as the mussels can accumulate on and encrust, for
example, buoys, piers and boat hulls. The mussels have had
catastrophic impacts on ecosystems where they have become
established. Estimates vary but billions of dollars have been
spent trying to mitigate the dreissenid mussel infestation in
the American Midwest. Eradication has not yet proved possible.
In January 2007 quagga mussels were discovered in Lake Mead -
likely introduced by a contaminated recreational boat. Quagga
mussels have since been found in the waters of San Bernardino,
Imperial, San Diego, Orange, and Riverside counties. The
original source of this infestation is thought to be
contaminated Colorado River water. Additionally, zebra mussels
have been found in one reservoir in San Benito County.
California depends upon large scale transport of water -
including Colorado River water - through a complex system of
pipes, canals, reservoirs and pumping stations. Direct mussel
damage alone to the water delivery system that provides drinking
water to millions of southern Californians, or to the irrigation
network that supports a multi-billion dollar per year
agricultural industry could have severe consequences,
1
notwithstanding expected indirect and environmental impacts.
Recognizing the risk posed by the 2007 discoveries of dreissenid
mussels in California waters, the Legislature passed AB 1683
(Wolk, c. 419, Statutes of 2007) which authorized the Department
of Fish and Game (DFG) to conduct inspections, and to order
quarantines, closures and decontaminations as required to
control dreissenid mussels. AB 1683 further required water
supply system operators to cooperate with DFG to implement
measures to avoid, control or eradicate infestations. Water
system operators are required to prepare and implement a control
plan if mussels are detected. If the control plan is approved
and implemented, private or public agencies operating public
water supply systems are exempt from quarantine.
Among other provisions, later legislation (AB 2065, Hancock, c.
667, Statutes of 2008) directed relevant parties - those
responsible for reservoirs used for public recreational
activities - to assess reservoir vulnerability to the dreissenid
mussels and to develop and implement a plan to prevent their
introduction. Failure to develop and/or implement such a plan 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
(FGC).
Last year, the Legislature passed AB 804 (Hall) which sought to
release the operators of water delivery and storage facilities
from civil and criminal liability due to the introduction or
spread of dreissenid mussels as a result of their operations if
that operator has prepared, initiated and is in compliance with
all elements of an approved plan. Without this liability
release, a water operator would be potentially liable under
several sections of the FGC. Complete eradication of the mussels
is not guaranteed, or likely, regardless of the implementation
of a scientifically-sound control plan by a water system
operator. The Governor vetoed AB 804 citing concerns for state
liability for mussel-related damage.
Several cities, water districts and agencies have either
received approval or have approval pending for dreissenid mussel
control plans. Spread of the mussels, however, is very likely
to continue.
PROPOSED LAW
This bill would:
(i) change existing law to ensure that water system
2
operators and their employees - who are in compliance
with an approved control plan - would not be subject
to any civil or criminal liability associated with
dreissenid mussel propagation or infestation;
(ii) exempt such operators from prohibitions on
possession, importation, shipment or transport of
mussels and related requirements
(iii) allow the designated authority to restrict
water system operations if the approved control plan
is not followed or the plan itself is not approved;
and
(iv) add a provision to protect the state and its
agencies against liability for their efforts to
control dreissenid mussels.
ARGUMENTS IN SUPPORT
According to the author "as a result from interactive discussion
between the sponsors and Department of Fish and Game, an express
provision was included that protects the Department of Fish and
Game against liability for its enforcement actions."
"California cannot afford to lose the water supplies from the
Colorado River that are essential to Southern California.
Therefore, public water supply operators should not be penalized
for delivering water to the public in accordance with plans,
approved by the Department of Fish and Game, that apply the
current technology available to deal with this invasive
species."
According to El Dorado Irrigation District "AB 1929 applies only
to delivery of public water supplies and only for those agencies
that are in compliance with existing requirements regarding
control and eradication of mussels." The San Diego County Water
Authority largely concurs, stating "Without this bill, the San
Diego County Water Authority and our member agencies could be
criminally and civilly liable for the spread of zebra mussels
from their water supply systems, even if they are taking all the
efforts required by existing law to control or prevent the
spread of the mussels."
ARGUMENTS IN OPPOSITION
None received
COMMENTS
This bill is substantially similar to the vetoed AB 804: AB 804
3
and AB 1929 are virtually identical with one important
distinction. This bill specifically exempts state agencies with
authority pursuant to this section from liability. This
addresses one of the Governor's principal concerns - "?shifting
liability to the state for any ensuing damage resulting from the
spread of dreissenid mussels." - raised in his veto message.
Further, the Governor indicated that AB 804 would "?relieve
water operators from having to continue to act responsibly once
they initially have an approved response plan in place ? The
presence of an approved plan does not ensure that subsequent
actions taken by the water agency will be consistent with that
plan ?" Only water delivery system or storage facility
operators that are in compliance with an approved plan are
exempt from liability. Facilities are required to cooperate
with and be inspected by DFG, and additionally are required to
revise and implement new plans at DFG's direction to maintain
compliance.
SUPPORT
Association of California Water Agencies (co-sponsor)
Metropolitan Water District of Southern California (co-sponsor)
Alameda County Flood Control and Water Conservation District,
Zone 7
Alameda County Water District
California Central Valley Food Control Association
California Municipal Utilities Association
City of San Diego
Contra Costa Water District
East Bay Municipal Utility District
El Dorado Irrigation District
Friant Water Authorities
Imperial Irrigation District
Inland Empire Utilities Agency
Irvine Ranch Water District
Kings River Conservation District
Kings River Water Association
Regional Council of Rural Counties
Santa Clara Valley Water District
San Diego County Water Authority
San Francisco Public Utilities Commission
Sierra Club California
Valley Ag Water Coalition
OPPOSITION
None Received
4
5