BILL ANALYSIS
AB 1242
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1242 (Ruskin)
As Amended September 4, 2009
Majority vote
-----------------------------------------------------------------
|ASSEMBLY: |54-25|(May 28, 2009) |SENATE: |23-14|(September 9, |
| | | | | |2009) |
-----------------------------------------------------------------
Original Committee Reference: W., P. & W.
SUMMARY : Establishes a human right to clean, affordable and
accessible water for the health and well-being of the individual
and family.
The Senate amendments made certain substantive, but relatively
minor, changes:
1)Specify limit on right to water for "for human consumption,
cooking, and sanitary purposes."
2)Delete provision that this human right to water is "on an
equitable basis."
3)Delete reference to affordability guidelines from United
States Environmental Protection Agency.
4)Clarify that this right does not expand the state's obligation
to provide water or to expend state funding for water.
EXISTING LAW establishes a state policy that the "use of water
for domestic purposes," which includes water for human
sustenance, household conveniences, gardens, and domestic or
barnyard animals, is the "highest use of water," and that the
next highest use is irrigation.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version passed by the Senate.
FISCAL EFFECT : According to the Senate Appropriations
Committee, estimates of $165,000 in costs for Department of
Public Health to apply this policy to its grant programs.
COMMENTS : This bill clarifies a long-established state policy
AB 1242
Page 2
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. 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 Utah, however, repealed its domestic use priority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,
although not extreme in most parts of the state. 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 if 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 consumption,
cooking, and sanitary purposes," which is narrower than
"domestic use." Courts have interpreted "domestic use" to
include watering of non-commercial livestock and plants.
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
AB 1242
Page 3
long-standing "reasonable use" doctrine for water rights.
Third, the bill explicitly limits the right to human needs and
not to new developments. Finally, it includes a savings clause
that ensures that publicly water systems retain their rights and
responsibilities.
Analysis Prepared by : Alf W. Brandt / W., P. & W. / (916)
319-2096
FN: 0003056