BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 804
Assemblymember Hall
As Amended June 18, 2009
Hearing Date: July 14, 2009
Fish and Game Code
NRB:jd
SUBJECT
Invasive Aquatic Species; Mussels
DESCRIPTION
This bill, sponsored by the Association of California Water
Agencies, would immunize from criminal and civil liability an
operator of a water delivery and storage facility who has
prepared and implemented a plan to control and eradicate
dreissenid mussels in accordance with existing law. This bill
also would exempt such operators from prohibitions on
possession, importation, shipment, or transportation of mussels
and other requirements.
BACKGROUND
Dreissenid mussels, also known as quagga or zebra mussels, are a
pernicious and prolific breed. These freshwater mussels damage
the environment by consuming phytoplankton that other species
need to survive. They also colonize in large masses, which can
clog water intake structures hampering the flow of water,
threatening municipal water supply, agricultural irrigation, and
power plant operations.
According to the Department of Fish and Game (DFG), these
mussels move through the state's water systems by attaching
themselves to plants, boats, and other water structures.
Dreissenid mussels are also capable of releasing over 40,000
eggs in a reproductive cycle and up to 1 million eggs in a
spawning season. Because the larva are too small to detect with
the naked eye, it is difficult to detect and prevent the spread
of the mussels.
(more)
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The DFG states that these mussels were introduced to the United
States from Europe and the Ukraine in the late 1980s. They were
first detected in the Great Lakes region where, according to the
DFG, the mussels inflicted $3.1 billion in economic damage to
the regional power industry.
Upon discovering the mussels in the Colorado River Aqueduct
System in 2007, the Legislature enacted urgency legislation
designed to prevent and control mussel infestation of California
waters. (AB 1683, Wolk, Ch. 419, Stats. 2007.) AB 1683
authorized the 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 the 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. Further, the measure made it a crime to
possess, transport, place, or cause to be placed dreissenid
mussels in any water within the state.
Since the enactment of this measure, and despite the efforts of
DFG and water supply agencies, the mussels remain undeterred.
According to the DFG, dreissenid mussels have subsequently been
discovered in eight California reservoirs and lakes, including:
San Vicente Reservoir; Lake Murray Reservoir; Lower Otay
Reservoir; Lake Dixon; Miramar Reservoir; Lake Skinner; Lake
Mathews; and San Justo Reservoir.
This bill was heard and approved by the Senate Committee on
Natural Resources and Wildlife on June 23, 2009.
CHANGES TO EXISTING LAW
Existing law prohibits a person from possessing, transporting,
placing, or causing to be placed dreissenid mussels in any water
within the state. (Fish & G. Code Sec. 2301(a)(1).)
Existing law permits the DFG to take a wide variety of actions
in order to prevent and detect the spread of dreissenid mussels
within the state and otherwise mitigate the actual and potential
threat of damage from such mussels. (Fish & G. Code Sec.
2301(a)(2).) Among other actions, the DFG is authorized to
inspect conveyances, waters, and water facilities; and if
dreissenid mussels are detected or may be present, the DFG may
close, quarantine, or restrict access to a facility with the
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concurrence of the Secretary of the Resources Agency. (Id. at
(a)(2)(D)(i)-(ii).)
Existing law requires a public or private agency that operates a
water supply system to cooperate with the DFG to implement
measures to avoid infestation by dreissenid mussels and to
control or eradicate any infestation that may occur in a water
supply system. (Fish & G. Code Sec. 2301(d)(1).) Further, if
dreissenid mussels are detected, the operator of the water
supply system, in cooperation with the DFG, is required to
prepare and implement a plan, as specified, to control or
eradicate dreissenid mussels within the system ("mussel plan").
(Id.)
Existing law provides that if the operator of a water supply
system develops and implements a mussel plan as required by law,
the DFG is not authorized to close, quarantine, or restrict
access to such a facility. (Fish & G. Code Sec. 2301(d)(2).)
However, if a water supply operator fails to update or revise
its mussel plan at the DFG's request to address scientific
advances in the methods of controlling or eradicating mussels,
the DFG may close or quarantine the facility. (Id.)
Existing law provides that the above provisions pertaining to
dreissenid mussels sunset on January 1, 2012.
Existing law generally provides that violations of any rule,
regulation, or order made or adopted under the Fish and Game
Code are punishable either as a misdemeanor or an infraction, as
specified. (Fish & G. Code Secs. 12000, 12023.)
In addition to criminal penalties, existing law imposes civil
liability on a person who violates various provisions of the
Fish and Game Code, including liability for the damage caused by
their actions and the costs of remediation. (Fish & G. Code
Secs. 12015, 12024.)
This bill would provide that if a water supply facility has
prepared, initiated, and is in compliance with all the elements
of a mussel control or eradication plan in accordance with
existing law, the following requirements would not apply to the
operations of the facility:
(1) The requirement that a person shall not possess, import,
ship, or transport in the state or cause to be placed or
planted in the water within the state, dreissenid mussels; and
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(2) Provisions authorizing the DFG to conduct inspections,
order closures or quarantines, or restrict access to waters or
facilities.
This bill would provide that if a water supply operator fails to
update or revise its mussel plan as required by the DFG, the
provisions above are reinstated until the operator completes the
necessary revisions and complies with all of the elements of the
updated or revised plan.
This bill also would provide that the operator of a water
delivery and storage facility for public water supply purposes
that prepares, initiates, and is in compliance with all the
elements of an approved plan to control or eradicate dreissenid
mussels in accordance with existing law, is immune from any
civil or criminal liability for the introduction of dreissenid
mussel species as a result of its operations.
This bill also makes numerous legislative findings and
declarations regarding the scourge of dreissenid mussels and the
importance of immunizing water supply systems from
mussel-related liability.
COMMENT
1. Stated need for the bill
The author writes:
Complete control and eradication of quagga mussels remains
elusive, indeed virtually impossible. The mussels are
transported not just by attaching themselves to boats, but
also by floating with water currents in their larval stage.
In this way, the mussels will necessarily spread with the
diversion and delivery of water supplies that have been
infested with the mussels. Both scientifically-based and
realistically-applied information and practice have
consistently demonstrated that it is virtually impossible to
eradicate the mussels once infestation occurs. The DFG
states, " . . . preventing their spread downstream from known
infestations may not be possible." California's water
agencies are faced with the dilemma of halting water supplies
that are essential to California, or violating the prohibition
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on transporting and placing the mussels within California.
AB 804 will limit the application of existing law relating to
civil and criminal penalties. Currently, even when a water
system operator implements a mussel control plan approved by
the DFG, complete eradication of quagga mussels is not a
guaranteed, or even likely, outcome. Consequently, if the
mussels were to spread through water deliveries made by public
water systems despite implementing the mussel control plan
required under [existing law], the water system entity and its
employees may be held criminally liable for possessing or
transporting quaggas, as well as civilly liable for costs of
controlling or removing quagga mussels. AB 804 will ensure
that those entities, and their respective employees, that are
observing current requirements and are in compliance with
their control plan, shall not be subjected to civil or
criminal penalties.
2. Immunity provision.
This bill would immunize specified public water supply operators
from criminal and civil liability so long as they have
implemented, and remain in compliance with, a DFG-approved
mussel control plan. According to the author, this immunity is
appropriate for two reasons. First, the author states that
eradication of dreissenid mussels from large bodies of water is
physically impossible. (See also Sec. 1(e) of AB 804's findings
and declarations.) Second, the author asserts that water
agencies have a strong financial incentive to protect against
the spread of mussels. Reportedly, the Metropolitan Water
District of Southern California has already expended an
estimated $10 million on increased maintenance costs due to
mussels clogging its Colorado River Aqueduct facilities. The
author also states that the Department of Water Resources has
estimated that the State Water Project would incur an initial
$70 million in capital costs, followed by $40 million annually,
to deal with the mussel problem.
3.Author's amendment.
As drafted, this bill would exempt specified water agencies that
have developed a mussel eradication and control plan, as
specified, from having their facilities inspected, closed, or
quarantined by the DFG. While it is unlikely that the DFG would
agree to a mussel plan that would prevent it from being able to
conduct future inspections of such facilities, the author has
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proposed the following amendment to address the issue:
At page 5, line 29, after "system" insert "permit inspections by
the department as well as"
Support : Association of California Water Agencies; California
Municipal Utilities Association; East Bay Municipal Utility
District; Metropolitan Water District of Southern California;
San Diego County Water Authority; California Special Districts
Association
Opposition :None Known
HISTORY
Source : Association of California Water Agencies
Related Pending Legislation : None Known
Prior Legislation :
AB 1683 (Wolk, Chapter 419, Statutes of 2007). See Background.
AB 2065 (Hancock, Chapter 667, Statutes of 2008). Requires any
person who owns or manages a reservoir open to boating or
recreation use to develop and implement a monitoring and control
plan to prevent the introduction of nonnative mussel species.
Prior Vote :
Assembly Water, Parks and Wildlife Committee (Ayes 13, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Floor (Ayes 79, Noes 0)
Senate Natural Resources and Wildlife Committee (Ayes 11, Noes
0)
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