BILL ANALYSIS                                                                                                                                                                                                    

                                                                  AB 685
                                                                  Page  1

          Date of Hearing:   April 26, 2011

                                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 

          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 

          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 

          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. 



                                                                 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, 
          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 
          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) 
                             Tina Cannon Leahy / W., P. & W. / (916)