BILL ANALYSIS
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
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BILL NO: AB 1242 HEARING DATE: July 6, 2009
AUTHOR: Ruskin URGENCY: No
VERSION: June 26, 2009 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: State water policy.
BACKGROUND AND EXISTING LAW
In 1913, the Legislature passed and the Governor signed the
Water Commission Act (Stat. 1313, ch. 586). In addition to
establishing a formal state process for appropriating surface
water, the Water Commission Act established as state policy that
domestic water use was a higher priority that other water uses.
When California's water laws were codified in 1943, that policy
was captured in Water Code Section 106, which states:
"It is hereby declared to be the established policy of this
State that the use of water for domestic purposes is the
highest use of water and that the next highest use is for
irrigation."
In 1989, the Legislature passed and the Governor signed the AB
21 (Sher). Among other things, that bill established in Health
and Safety Code 116270 Legislative findings and declarations
stating:
"(a) Every citizen of California has the right to pure and
safe drinking water."
In November 2002, the UN Committee on Economic, Social and
Cultural Rights adopted "General Comment No. 15: The Right to
Water (arts. 11 and 12 of the International Covenant on
Economic, Social and Cultural Rights)." In that comment, the
Committee interpreted and provided guidelines regarding the
right to water pursuant to two articles of the 1966
International Covenant on Economic, Social and Cultural Rights.
In its introduction, General Comment 15 affirms that:
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"The human right to water entitles everyone to sufficient,
safe, acceptable, physically accessible and affordable
water for personal and domestic uses."
It notes that the right to water has been recognized in a wide
range of international documents and reaffirms the fundamental
importance of the right stating that:
"The human right to water is indispensable for leading a
life in human dignity. It is a prerequisite for the
realization of other human rights."
As noted in a UN "Backgrounder" on the human right to water,
"While the General Comment is not legally binding on the 146
States that have ratified the International Covenant, it aims to
assist and promote the implementation of the Covenant and does
carry the weight and influence of 'soft law'".
PROPOSED LAW
This bill would:
Declare that the established policy of the state is that every
human being has the right to clean, affordable, and accessible
water, that is adequate for the health and well-being of the
individual and family.
Require all relevant state agencies to employ all reasonable
means to implement this state policy. Those state agencies
would be further required to revise, adopt, or establish
policies, regulations, and grant criteria to further this
state policy, including establishing affordability criteria as
appropriate.
Apply to water supplies for individuals and not for new
development.
Establish that implementation of these provisions are not to
infringe on the rights or responsibilities of any public water
system.
ARGUMENTS IN SUPPORT
According to the author, "Access to clean, safe and affordable
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water is a fundamental human right essential to our health, the
environment and the economy." "This bill simply ensures that
future regulations, grant programs, and agency practices are
designed to move California forward to a day when everyone in
California can have safe, affordable drinking water so they may
drink their water without endangering their health."
Supporters generally describe problems with accessibility to
clean or affordable water. These included drinking water
quality problems such as excessive levels of nitrates,
pesticides, industrial chemicals, and naturally occurring
chemicals in high concentrations.
As many supporters point out, a consequence of poor water
quality is that many families, particularly in economically
disadvantaged communities, are force to switch to much more
expensive bottled water to meet their domestic water needs.
ARGUMENTS IN OPPOSITION
Opponents raise a number of issues, some of which might have
been addressed by recent amendments. These issues include:
Effect On Long Standing Water Policy - Current law already
establishes that water for domestic purposes is the highest
use of water. Moreover, these provisions have been well
vetted in the courts. This bill appears to narrow the
domestic preference to "human health and well being" towards
an uncertain purpose or legal consequence.
What is Affordable? - Current law does not allow water
suppliers to discriminate with customer classes, and further
requires that rates be related to the cost of service, thereby
prohibiting them from creating "affordable" rates at the
expense of other rate payers.
Consequences of Affordability - Currently, when a customer is
unable to pay their water bill the water agency eventually
discontinues water service to the property. If, under this
bill, the water agency is prohibited from discontinuing water
service in such circumstances, other water customers will have
to pay more to cover the costs of the non-paying customers.
COMMENTS
Human Right Vs. Other Domestic Purposes. As noted above, the
priority for domestic water use is a long standing policy in
California Water Law. However, the courts have determined that
domestic water encompasses more that just water for human
consumption and sanitation purposes. For example, under case
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law, domestic purposes include the watering of barnyard animals,
but not herds raised for profit. This bill appears to elevate,
with the priority for domestic purposes, priority to water for
the health and well-being of the individual and family above the
priority for other domestic purposes.
New Obligation On the State? This bill would declare in statute
that "the established policy of the state is that every human
being has the right to clean, affordable, and accessible water
?" This bill further attempts to clarify that in establishing
this new policy, the bill:
Would limit state agency responsibilities to what is
"reasonable,"
Would not require any action to supply water for new
development, and
Would not impose new requirements or responsibilities on
public water systems.
Given the apparent limitations on implementing this policy, who
would be responsible for ensuring that every human being's
rights to water are being protected, and moreover, who would be
responsible for redressing any violations of those rights? It
is not out of the question that a court may find that it is the
State of California's responsibility to redress any violations
of that policy.
Lifeline Vs. Tiered Rates. Some proponents note that because
California Law does not require lifeline rates for water, there
are some water providers whose rates are simply unaffordable to
the economically disadvantaged. Some water agency associations
retort that the requirements of Proposition 218 prevent them
from discriminating among customers in the same class. These to
observations are not necessarily irreconcilable.
Last year the Legislature passed and the Governor signed AB 2882
(Wolk). Among other things, that bill clarified under state law
a mechanism compliant under Proposition 218 that would allow
tiered water rates. The Irvine Ranch Water District's (IRWD)
rate structure was the model for the bill. Under IRWD's
structure, water in lowest tier rate is significantly less than
the average rate. While such a rate structure may not always be
possible, it could help address some of the affordability
questions raised by this bill.
What Is Affordable? As recently amended, this bill would
require the state agencies required to implement this bill to,
as a part of revising, adopting, or establishing policies,
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regulations, and grant criteria, to also establish affordability
criteria "as appropriate." This would allow the definition of
affordability to:
Be developed through normal processes for establishing or
revising regulations, etc.
Allow the definition to vary from program to program, as
conditions dictate.
SUGGESTED AMENDMENTS: None
SUPPORT
Alliance for Democracy
Breast Cancer Action
California League of Conservation Voters
California Nurses Association
California Rural Legal Assistance Foundation
California Teachers Association
Californians for Pesticide Reform
Catholic Charities, Diocese of Stockton
Center for Environmental Health
City of Visalia
Clean Water Action
Comite Civico Del Valle, Inc.
Community Water Center
Environmental Justice Coalition for Water
Federation of Retired Union Members of Santa Clara County
Food & Water Watch
Fort Ord Environmental Justice Network, Inc.
Friends of the River
Goshen Mutual Water Company
Green LA Coalition Urban Ecosystems Work Group
Heal the Bay
Henry T. Perea, Councilmember, District 7
La Asociacion de Gente Unida por el Agua
League of Women Voters of California
Movement Generation
National Nurses Organizing Committee
Natural Resources Defense Council
Pesticide Action Network North America
Physicians for Social Responsibility/Sacramento
Plainview Mutual Water Company
Planning and Conservation League
San Jerardo Cooperative, Inc.
Sierra Club California
Southern California Watershed Alliance
The Women's Foundation of California
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Unitarian Universalist Legislative Ministry Action Network
Unitarian Universalist Service Committee
United Nations Conference on Environment and Development
Urban Semillas
West Goshen Mutual Water Company
Winnemem Wintu Tribe
Women's International League for Peace and Freedom
Hundreds of individuals
OPPOSITION
California Municipal Utilities Association
Association of California Water Agencies
Friant Water Authority
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