BILL ANALYSIS
AB 1242
Page 1
GOVERNOR'S VETO
AB 1242 (Ruskin)
As Amended September 4, 2009
2/3 vote
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|ASSEMBLY: |54-25|(May 28, 2009) |SENATE: |23-14|(September 9, |
| | | | | |2009) |
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|ASSEMBLY: |53-24|(September 10, 2009) |
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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
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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
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 Utah, however, repealed its domestic use priority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
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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
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.
GOVERNOR'S VETO MESSAGE :
This bill would declare it to be the established
policy of the State that every human being has the
right to clean, affordable, and accessible water for
human consumption.
Existing law establishes that domestic water use has
the highest priority over other water uses. When
California's water laws were established in 1943,
this policy was enshrined in law.
I wholeheartedly support the underlying premise of
this bill: We should be doing everything we can to
ensure that our communities have access to clean,
affordable water for our citizens. But the language
of this bill will undoubtedly lead to potentially
costly and constant litigation. This moves our
limited state resources away from the day to day
operations of achieving our clean water goals and
puts them in the courtroom.
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Additionally, while providing safe drinking water is
fundamental to our laws and to human health, this
bill would not enhance our current efforts in
achieving this goal. The State Water Resources
Control Board, the California Department of Public
Health, and the Department of Water Resources are
actively awarding grant funds and implementing
policies and programs to protect and improve the
long-term quality of drinking water supplies. Our
most pressing barrier in achieving this goal is not
desire, it is funding.
For this reason, I am signing AB 626 (Eng) and AB
1438 (Conway). AB 626 makes important changes to
existing law that increase funding from Proposition
84 for disadvantaged communities in each hydrologic
region in the state. AB 1438 modifies the Safe
Drinking Water State Revolving Fund to provide more
resources to water system operators serving
disadvantaged communities that often lack the
resources for vital, costly water system
improvements. I believe these bills will provide
some additional needed tools to achieve the
well-intended purpose of this measure.
The need for additional funding also places
heightened importance on the need for a water
infrastructure bond that includes a robust
investment in increasing water quality and water
supply reliability.
Analysis Prepared by : Alf W. Brandt / W., P. & W. /
(916) 319-2096
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