BILL ANALYSIS
AB 1242
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Date of Hearing: April 28, 2009
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared William Huffman, Chair
AB 1242 (Ruskin) - As Amended: April 2, 2009
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 the "established policy of the state" that every
human being has the right to clean and accessible water on an
equitable basis, that is adequate for the health and
well-being of the individual and family, and that no one shall
be deprived of that access or quality of water due to
individual economic circumstances
2)Requires relevant state agencies, including the Department of
Water Resources (DWR), the
State Water Resources Control Board (SWRCB) and the State
Department of Public Health (DPH), to employ all feasible
means to implement this policy.
3)Requires state agencies to revise, adopt or establish
policies, regulations and grant criteria to implement this
policy.
4)Specifies that this section applies to water for individuals
and not for new development.
5)Prohibits implementation of this section from infringing on
the rights or responsibilities of any local or regional water
agency or municipality.
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.
FISCAL EFFECT : Unknown
COMMENTS : This bill clarifies a long-established state policy
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favoring domestic use, to apply to 21st century conditions.
Water Code Section 106 declaring domestic use as the "highest
use" of water originated in California's 1913 adoption of its
first statutory/administrative water rights system. In the same
era, western states, which were arid and eligible for
development of federal irrigation projects by the Bureau of
Reclamation, adopted similar statutory water rights schemes,
which usually included a similar policy. This common western
state policy reflected a public priority for taking care of
human needs, ahead of irrigation needs for water, as western
states grew and developed with the help of federal irrigation
projects. Utah, however, repealed its domestic use priority
statute last year.
Court decisions, from the mid-20th Century, regarding Section
106 gave shape and implemented this policy, cementing its
connection to California's water rights structure. Those
decisions:
1) Allowed rights to divert water for domestic uses a
higher priority than irrigation diversions.
2) Defined "domestic use" to include water for human
sustenance, household conveniences, and domestic or
barnyard animals (but not commercial livestock).
3) Barred its application to contracts for water through
the federal Bureau of Reclamation's Central Valley Project,
distinguishing a federal contract from a state water right.
4) Bind irrigation districts as well as cities in providing
first for human needs.
5) Provide that the preference for domestic use includes
water quality as well as quantity.
These court decisions arose in the water rights context. The
one related to irrigation districts serving residential
customers also related to a proposed purchase of the district's
water rights. While Californians may have a right to claim
water that is California's natural bounty, it is less clear
whether there is any right to water service. When that water
service depends on substantial financial investments in water
storage and conveyance infrastructure, the right to water
service is less clear, even under this bill.
The bill's provision that "no one shall be deprived of that
access or quality of water due to individual economic
circumstance" remains ambiguous as to effect. The bill does not
indicate the outcome when an individual cannot afford to pay the
water bill. The bill provides no mechanism, such as "lifeline"
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or basic water service, to address this circumstance. While
this provision is stated in the context of the right, the bill
subsequently limits state agency responsibilities to what's
feasible and preserves local/regional agency rights and
responsibilities, presumably including the right to shut off
water service when the customer fails to pay what's due. This
provision may require further clarification, including whether
public utilities enjoy the same protection of their "rights and
responsibilities."
Since the domestic use preference was adopted in 1913,
California has grown exponentially, in terms of water demands,
population, irrigation and water infrastructure. The
relationship between water demand and supply has become tighter.
Surface and groundwater supplies have become contaminated,
which further limits water available for human use. Some
communities, usually smaller and poorer, now suffer from limited
availability of clean groundwater for their citizens, when
adjacent agriculture continues to have access to clean surface
water. During the current drought, water agencies and
communities have delivered less water for agricultural and urban
uses and have mandated conservation. California has not reached
the point of enforcing the domestic use preference or limiting
use of water to human needs (as opposed to urban landscaping,
which can use half of domestic water supply). This bill
clarifies existing policy protecting human rights to clean and
accessible water and further elucidates the state policy that
may help California make choices when water demand regularly
outstrips supply.
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 States parties," that
"obligation" 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 concept of the UN's recognition of a
human right to water into state law, but the legal effect of the
UN Comment's interpretation of that right has no clear impact on
California law.
The bill narrows the general domestic preference policy both
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implicitly and explicitly, although the broader policy also
remains in force. First, it focuses the preference, under the
framework of a right, on water needs "for human health and
well-being," which is narrower than "domestic use." Second, it
requires state agencies to do only what is "feasible" to
implement this policy, which means its effect, as to state
agency action, remains limited. The Committee may consider
changing this word to "reasonable," which would be consistent
with and import interpretation of the California Constitution's
"reasonable use" doctrine for water rights. Third, the bill
explicitly limits the right to humans and not to new
developments. Finally, it includes a savings clause that
ensures that local and regional agencies retain their rights and
responsibilities.
REGISTERED SUPPORT / OPPOSITION :
Support
Environmental Justice Coalition for Water (sponsor)
Alliance for Democracy (co-sponsor)
California Water Impact Network
Californians for Pesticide Reform
Comite Civico Del Valle
Community Water Center
Food and Water Watch
Fort Ord Environmental Justice Network
La Asociaci?n de Gente Unida por el Agua (AGUA)
National Resources Defense Council
Pacific Coast Federation of Fisherman's Associations
Planning and Conservation League
Sierra Club California
Unitarian Universalist Church of the Monterey Peninsula
Unitarian Universalist Legislative Ministry Action Network
Unitarian Universalist Service Committee
Urban Semillas
Women's International League for Peace and Freedom
Several hundred individuals - form letters and detailed support
letters
Opposition :None submitted
Analysis Prepared by : Alf W. Brandt / W., P. & W. / (916)
319-2096