BILL ANALYSIS
AB 804
Page 1
Date of Hearing: April 21, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 804 (Hall) - As Amended: April 16, 2009
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT : INVASIVE AQUATIC SPECIES: MUSSELS
KEY ISSUE : SHOULD WATER AGENCIES WHO HAVE IMPLEMENTED A 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 implemented
a plan to control and eradicate dreissenid mussels in accordance
with existing law. A water agency would thus be immune from
civil or criminal liability for introduction of mussels as a
result of operation of those facilities. This would
additionally exempt such operators from prohibitions on
possession, importation, shipment or transport of mussels and
other requirements. This bill is a result of good faith
negotiations between the sponsor, Sierra Club, and the Consumer
Attorneys of California as proposed to be amended. There is no
known opposition.
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 the
existing provisions of law, would not be subject to any civil or
criminal liability for the introduction of dreissenid mussel
species as a result of operations of those facilities.
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
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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 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.
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 :
1)Prohibits generally a person from possessing, importing,
shipping, or transporting in the state, or from placing,
planting, or causing to be placed or planted in any water
within the state, dreissenid mussels.
2)Authorizes the Director of Fish and Game or his or her designee
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)Requires water supply agencies to cooperate with DFG to implement
measures to avoid infestation and to control or eradicate any
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infestations that occur.
4)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.
5)Prohibits a closure or quarantine from being imposed by the DFG
director without the concurrence of the Secretary of
Resources.
6)Exempts a public or private agency that operates a water supply
system from those enforcement activities, if the operator of
the facilities has prepared and implemented a prescribed plan
to control or eradicate dreissenid mussels.
7)Provides that a person who violates or resists, delays,
obstructs, or interferes with the implementation of these
provisions is subject to a penalty, in an amount not to exceed
$1,000, that is imposed administratively by the department.
COMMENTS : This non-controversial bill, among other things,
would immunize water system operators working in accordance with
existing law from civil and criminal penalties for transport and
infestation of quagga mussels. The sponsor of this bill, the
Association of California Water Agencies (ACWA), states:
?Even when a water system operator responsibly implements a
scientifically sound plan, complete eradication of quagga
mussels is not guaranteed, nor a likely outcome.
Consequently, if mussels are spread through water
deliveries made by public water systems, despite
implementation of a science based control plan, the water
system operator and its employees are potentially subject
to criminal and civil penalties.
Given the resilient nature of these mussels, ACWA argues that a
water agency would be unfairly exposed to lawsuits for failing
to eradicate this invasive species.
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. These mussels spread by
clinging to the outer surfaces of boats and other aquatic
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equipment or by drifting to downstream water bodies as
microscopic mussel larva.
Since these invasive species reproduce rapidly and in large
numbers, they can severely hinder water delivery systems by
clogging 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.
As a result, 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.
ARGUMENTS IN SUPPORT : 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. 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.
In support of the bill, the California Municipal Utilities
Association emphasizes that this measure "does not relax any
responsibilities under existing law, but does protect against
unwarranted penalties being imposed on water agencies in
compliance with these legal requirements." To this end, the
immunity provision of the bill has been amended to ensure that
water agencies follow existing law.
Immunity Provision : 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
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result of those operations. Such immunity would only apply if
the operator has prepared and executed a plan to control or
eradicate mussels as required by existing law.
Author's Amendments Remove Organizational Concerns : The Sierra
Club earlier had some concerns about the broad immunity language
in the bill. The author has agreed to amend the bill to require
sufficient compliance with existing law in order for the
immunity to apply. 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, then immunity would not apply. Due to
the interconnected nature of many of California's water systems,
the failure of one water facility to take adequate measures to
prevent the spread of mussels may significantly threaten 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.
Amendment language : The author has agreed to the following
amendments.
On page 5, line 30-31, delete the words "and implemented a plan
to control" and insert the words:
, initiated, and is in compliance with all the elements of the
approved plan
On page 6, line 2, add the words after "or revises the plan":
, and has initiated and is in compliance with all of the
elements of the updated or revised plan.
Prior/Pending Related Legislation. 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.
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AB 2065 (Hancock), Chapter 667, Statutes of 2008, requires any
person, or federal, state or local agency, district or authority
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.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California Water Agencies (ACWA)
California Central Valley Flood Control Association
California Municipal Utilities 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 of Southern California
Regional Council of Rural Counties
Sierra Club California
Southern California Water Committee
Three Valleys Municipal Water District
Valley Ag Water Coalition
Western Municipal Water District
Opposition
None on file
Analysis Prepared by : Drew Liebert and Edward Ahn / JUD. /
(916) 319-2334