BILL ANALYSIS Ó
AB 685
Page 1
Date of Hearing: April 26, 2011
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared Huffman, Chair
AB 685 (Eng) - As Introduced: February 17, 2011
SUBJECT : State water policy
SUMMARY : Establishes a human right to clean and accessible
water for the health and well-being of the individual and
family. Specifically, this bill :
1)Declares a state policy ("Policy") that every human being has
the right to clean, affordable, and accessible water for human
consumption, cooking, and sanitary purposes that is adequate
for the health and well-being of the individual and family.
2)Requires relevant state agencies, including the Department of
Water Resources, the
State Water Resources Control Board and the State Department of
Public Health, to employ all reasonable means to implement
this Policy, including requirements that state agencies
revise, adopt or establish policies, regulations and grant
criteria to implement this Policy, including affordability
criteria as appropriate, to the extent that those actions do
not affect eligibility for federal funds.
3)Does not expand any state obligation to provide water or
require the expenditure of additional resources to develop
water infrastructure beyond the obligations that may exist
pursuant to the requirements for the relevant state agencies
outlined above.
4)Specifies that the Policy applies to water for individuals and
not for new development.
5)Prohibits implementation of the Policy from infringing on the
rights or responsibilities of any public water system.
EXISTING LAW establishes a state policy that the use of water
for domestic purposes, which includes water for human
sustenance, household conveniences, and domestic or barnyard
animals, is the "highest use of water," and that the next
highest use is irrigation.
AB 685
Page 2
In 1989, the Legislature passed and the Governor signed AB 21
(Sher). Among other things, that bill established in Health and
Safety Code §116270 a legislative finding and declaration that,
"Every citizen of California has the right to pure and safe
drinking water."
FISCAL EFFECT : Unknown
COMMENTS : In 1913, California adopted its current water rights
system. This enactment included the policy that was later
codified as Water Code Section 106, which declares that "the use
of water for domestic purposes is the highest use of water."
During this era, many of the arid western states which were
eligible for the development of federal irrigation projects by
the Bureau of Reclamation adopted statutory water rights schemes
which included similar policies favoring domestic use. This
shared policy emphasis among western states reflected a public
prioritization of human needs for water ahead of irrigation uses
as these states grew and developed with the help of federal
irrigation projects.
Almost 100 years have passed since the domestic use preference
was first adopted in California. In that time, there have been
dramatic increases in the state's population, the total amount
of irrigated acreage, and the size and complexity of its water
infrastructure. As water demands generally have increased, the
relationship between water supply and water demand has become
more strained. Additionally, many surface and groundwater
supplies have become contaminated, which further limits water
available for human use. However, it is important to note that
California has not reached the point of enforcing the domestic
use preference or otherwise limiting the use of water for human
needs.
This bill supplements the existing general domestic preference
policy by declaring that every human being has a right to water
for certain needs related to human health and well-being. The
bill explicitly limits the right to humans and not to new
developments. It also includes a savings clause that ensures
that local and regional agencies retain their rights and
responsibilities.
While Californians may have a right to claim water for basic
needs under this bill, it is less clear whether there is any
right to water service, especially when that water service
depends on substantial financial investments in water storage
AB 685
Page 3
and conveyance infrastructure. This bill does not modify any
duty of the state to provide water service, as it states that it
"does not expand any obligation of the state to provide water or
to require the expenditure of additional resources beyond the
obligations" that state agencies revise, adopt or establish
policies, regulations and grant criteria to implement the
Policy.
The bill's sponsor notes that the United Nations Economic and
Social Council has issued a "General Comment" that interprets a
human right to water as a part of existing international law,
based on Articles 11 and 12 of the International Covenant on
Economic, Social and Cultural Rights. While the UN Comment
frames this right as an "obligation" of State parties, it only
requires signatories to "move as expeditiously and effectively
as possible towards the full realization of the right to water."
UN E/C, General Comment No. 15 (2002). This bill would
incorporate the UN's conceptual recognition of a human right to
water into state law, but the UN Comment's interpretation of
that right has no clear impact on California law.
This bill is substantially similar to AB 1242 (Ruskin), which
was passed by both the Assembly and the Senate in 2009, before
being vetoed by Governor Schwarzenegger.
Support Arguments: Supporters of the bill emphasize that
groundwater pollution occurs from various sources, including
nitrates, pesticides, industrial chemicals, and some naturally
occurring chemicals in high concentrations, and that such
contamination can have a substantial impact on human health. For
example, the bill's proponents note that between 1997 and 2001,
nitrates were detected above regulatory standards in the
drinking water supplies of more than 11.2 million Californians,
and that the drinking water of 8.5 million Californians was
subjected to five or more violations of the standard.
The supporters emphasize that such contamination has resulted in
limited clean water supplies for a number of communities,
especially those which are smaller, rural and poor. Supporters
argue that citizens in these communities must resort to
purchasing costly substitute sources of drinking water, like
bottled water. These same citizens are often forced to utilize
contaminated water for other basic needs, for uses such as
bathing and washing dishes, which can result in skin irritation,
hair loss, and unknown long term health risks.
AB 685
Page 4
Finally, supporters argue that many people simply cannot afford
the cost of water service. Supporters note that unlike energy
and phone service, there is no statewide lifeline water rate, so
that individuals and families that cannot pay their water bill
are at risk of losing water service.
Opposition Arguments: Opponents of the bill argue that it could
lead to higher water bills for water service customers, and may
have other unintended consequences.
The opponents argue that this bill would establish a requirement
that water agencies provide water service regardless of
affordability. The opponents note that current law does not
allow water suppliers to discriminate within customer classes
and requires that rates be related to cost of service, thereby
prohibiting suppliers from creating affordable rate classes at
the expense of other ratepayers. The opponents emphasize that
this bill may have the effect of preventing water suppliers from
cutting off service to customers who fail to pay their bills,
and require other customers to subsidize water service for those
who cannot afford to pay. The opponents argue that this scenario
could have a significant impact on the viability of water
agencies across the state, and note that it would likely have a
higher impact on suppliers with large low-income populations,
possibly leaving them unable to provide adequate service or plan
for future infrastructure needs.
Some opponents of the bill also raise concerns that the addition
of a human right to water for basic needs is unnecessary given
the existing right to "pure and safe drinking water" in
California law. Additionally, some opponents of this bill argue
that by establishing a potentially enforceable "human right" to
water, this bill has uncertain legal implications which may
result in litigation.
Suggested Amendments : This bill references "affordability
criteria" to implement the Policy. But it is ambiguous as to
the scope and application of such criteria. The author and the
Committee may wish to consider amendments providing more
specificity as to the ambit of the affordability criteria.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 685
Page 5
Alliance for Democracy
Asociacion de Gente Unida por el Agua
California League of Conservation Voters
California Rural Legal Assistance Foundation
Catholic Charities Diocese of Stockton
Clean Water Action
Committee for a Better Seville
Community Water Center
Environmental Justice Coalition for Water
Food and Water Watch
Natural Resources Defense Council
Planning and Conservation League
Self-Help Enterprises
Sierra Club California
Southern California Watershed Alliance
Unitarian Universalist Legislative Ministry Action Network,
California
Unitarian Universalist Service Committee
United for Change in Tooleville
Urban Semillas
Vecinos Unidos
Winnemem Wintu Tribe
Women's International League for Peace and Freedom, Fresno
Section
Women's International League for Peace and Freedom, U.S. Section
Over 400 individuals
Opposition :
Association of California Water Agencies
California Chamber of Commerce
California Water Association
California Water Service Company
Cucamonga Valley Water District
Desert Water Agency
East Valley Water District
El Dorado Irrigation District
Friant Water Authority
Western Growers
AB 685
Page 6
Analysis Prepared by : Adam Walukiewicz / W., P. & W. / (916)
319-2096
Tina Cannon Leahy / W., P. & W. / (916)
319-2096