BILL ANALYSIS
AB 1242
Page 1
ASSEMBLY THIRD READING
AB 1242 (Ruskin)
As Amended May 4, 2009
Majority vote
WATER, PARKS & WILDLIFE 9-3
APPROPRIATIONS 11-4
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|Ayes:|Huffman, Arambula, |Ayes:|De Leon, Ammiano, |
| |Blumenfield, Caballero, | |Calderon, Davis, Fuentes, |
| |Krekorian, | |Hall, John A. Perez, |
| |Bonnie Lowenthal, John A. | |Price, Skinner, Solorio, |
| |Perez, Salas, Yamada | |Torlakson |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Fuller, Anderson, Tom |Nay: |Nielsen, Harkey, Miller, |
| |Berryhill | |Audra Strickland |
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SUMMARY : Establishes a human right to clean, affordable 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, affordable and accessible
water on an equitable basis, 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 (DWR), the
State Water Resources Control Board (SWRCB) and the State
Department of Public Health (DPH), to employ all reasonable
means to implement this policy.
3)Requires state agencies to revise, adopt or establish
policies, regulations and grant criteria to implement this
policy.
4)Requires state agencies, in determining affordability, to
apply criteria adopted by the United States Environmental
Protection Agency.
5)Specifies that this section applies to water for individuals
AB 1242
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and not for new development.
6)Prohibits implementation of this section from infringing on
the rights or responsibilities of any publicly regulated 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.
FISCAL EFFECT : The Assembly Appropriations Committee estimated
negligible fiscal effect, if any. Department of Finance
estimates no costs.
COMMENTS : This bill clarifies a long-established state policy
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.
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, while
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
AB 1242
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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
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 "reasonable" to
implement this policy, which means its effect, as to state
agency action, remains limited. This use of "reasonable" is
consistent with California Constitution's long-standing
"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 publicly regulated water agencies retain their
rights and responsibilities.
Analysis Prepared by : Alf W. Brandt / W., P. & W. / (916)
319-2096
FN: 0000903