BILL ANALYSIS
AB 804
Page 1
Date of Hearing: April 14, 2009
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared William Huffman, Chair
AB 804 (Hall) - As Introduced: February 26, 2009
SUBJECT : Invasive Aquatic Species: Mussels
SUMMARY : Provides that an operator of water delivery and
storage facilities who has prepared and implemented a 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
other requirements. Specifically, this bill :
1)Provides that if the operator of water delivery or storage
facilities for public water supply purposes prepares and
implements a plan to control and eradicate dreissenid mussels
in accordance with provisions of existing law, the following
requirements would 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 conduct inspections,
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.
3)Provides that the operator of water delivery or storage
facilities for public water supply purposes that prepares and
implements 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 DFG, in conjunction with the Department of Water
Resources (DWR), to conduct a study on quagga mussels.
5)Makes various legislative findings and declarations regarding
quagga mussels and the need to protect water agencies from
liability.
EXISTING LAW : Makes it unlawful to possess, import, ship,
transport, or place dreissenid mussels in any water within the
state, and 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. Prohibits a closure or quarantine from being imposed
by the DFG director without the concurrence of the Secretary of
Resources. Requires water supply agencies to cooperate with DFG
to implement measures to avoid infestation and to control or
eradicate any infestations that occur. 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 costs to DFG and DWR to conduct a
study.
COMMENTS : 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 are also harmful
to 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
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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.
Arguments in Support : The Association of California Water
Agencies (ACWA) has introduced this bill to limit water agency
liability for damages caused by dreissenid mussels. ACWA
asserts that this bill is necessary to ensure that water system
operators and their employees, who are observing current legal
requirements to the best of their ability 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 all 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.
Immunity Provision: This bill would provide absolute 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, if the operator has
prepared and implemented a plan to control or eradicate mussels
as required by existing law. The committee may wish to
consider whether the immunity provision is adequately drafted to
ensure that it can not be construed to protect an operator from
immunity for intentionally or negligently introducing mussels
into a water body. The author and sponsors believe that this
provision as currently worded would not immunize operators who
commit intentional or grossly negligent acts that result in
introduction of mussels, since it requires that the plan be
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prepared and implemented as required by law. However, it is
unclear what would constitute "implementation" for the immunity
to apply. For instance, if an operator has developed and
implemented the provisions of a plan, but then either
intentionally or negligently fails to diligently comply with all
of the control and monitoring methods called for in the plan,
resulting in the introduction of mussels, would the immunity
apply? Due to the interconnected nature of many of California's
water systems, and the pathways through which mussels may be
transported from one water body to another, the failure of one
water facility to take adequate measures to prevent the spread
of mussels may pose significant threats to other water facility
operators, and to the state. For these reasons, the state has
an interest in ensuring that protections from liability are
carefully crafted to ensure adequate incentives exist for all
water system operators to take concerted action to prevent and
control the spread of invasive mussels. In light of the
significant state interests at stake, the committee may wish to
consider whether granting this kind of immunity would help or
hinder efforts to control invasive mussels. Note: This bill
has been double-referred to the Assembly Judiciary Committee
which will also be analyzing the immunity provision.
In addition, if the immunity proposed in this bill is granted,
the state will in effect be relying on DFG's capacity to monitor
the development and implementation of the plans, which will
require that DFG have the resources to do so. For this reason,
if the immunity is granted the committee may wish to consider
whether water operators should be required to pay a fee to cover
DFG's costs of planning, oversight and enforcement of the plan
requirements.
Exemption from requirements relating to state inspections and
other restrictions: This bill also exempts water facilities
that adopt and implement a plan from provisions authorizing DFG
to conduct inspections and order closures, quarantines,
disinfections and other controls to prevent the spread of
invasive mussels. The committee may wish to consider whether
this provision is overly broad, since DFG may need to conduct
inspections in order to ensure that the plans are being followed
and updated as required by law. Existing law also requires
concurrence of both the director of DFG and the Secretary of
Resources before any closure, quarantine or other restriction
can be ordered. For these reasons, staff recommends the
committee adopt an amendment, on page 5, line 34, to limit the
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exemption to the requirements of subdivision (a) (1) .
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California Water Agencies (sponsor)
California Central Valley Flood Control Association
California Special Districts Association
East Bay Municipal Utility District
Eastern Municipal Water District
El Dorado Irrigation District
Friant Water Authority
Las Virgenes Municipal Water District
Metropolitan Water District
Three Valleys Municipal Water District
Valley Ag Water Coalition
Western Municipal Water District
Opposition
None on file.
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096