BILL ANALYSIS �
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: AB 685 HEARING DATE: July 7, 2011
AUTHOR: Eng URGENCY: No
VERSION: June 30, 2011 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: State water policy: regional water management planning
BACKGROUND AND EXISTING LAW
1.In 1913, the Legislature passed and the Governor signed the
Water Commission Act. 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 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."
2.Under the Integrated Regional Water Management Planning Act of
2002, a regional water management group is authorized, but not
required, to prepare and adopt an integrated regional water
management plan (IRWMP). Adoption of an IRWMP, or its
equivalent, is a condition for qualifying for certain
categories of bond funds under Proposition 84 and the proposed
2012 water bond. Much, but not all, of the state is covered
by one or more IRWMPs.
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PROPOSED LAW
This bill would do two things:
1.Declare that it is the established policy of the state that
every human being has the right to clean, affordable, and
accessible water for human consumption, cooking, and sanitary
purposes, that is adequate for the health and well-being of
the individual and family. The bill would require all relevant
state agencies, including the Department of Water Resources,
the State Water Resources Control Board, and the State
Department of Public Health, to consider this state policy
when revising, adopting, or establishing policies,
regulations, and grant criteria.
2.Authorize a regional water management group to coordinate its
planning activities to address or incorporate into its IRWMP a
basin plan developed and adopted by a California regional
water quality control board.
ARGUMENTS IN SUPPORT
According to the author, "More than 11.5 million Californians
rely on water suppliers that faced at least one violation of
State Drinking Water Standards. As many as 8.5 million
Californians rely on supplies that experienced more than five
incidences of excessive levels of contaminants in the drinking
water in a single year. In communities where the sole water
supply is contaminated, families that are unable to afford
treatment are often left entirely without safe water. The
Central Valley and Central Coast regions, where more than 90% of
the communities rely solely on groundwater, are particularly at
risk. More than 250,000 people in the Central Valley alone,
lack access to a consistent source of safe, affordable water.
California does not have a universal statewide lifeline water
rate or allocation, similar to our lifeline rates for energy and
phone service, so when costs become excessive, families that
cannot pay their bills risk losing water service entirely."
"Adding a provision to the Water Code that explicitly states
that access to an amount of clean water necessary for basic
human needs is a 'right' of every Californian would ensure that
state agencies, dealing with water resources, will make these
agencies conform their programs and practices to this policy."
ARGUMENTS IN OPPOSITION
Opponents tend to focus on the requirement that water be
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"affordable." The Association of California Water Agencies
(ACWA), for example, questions "to what extent water agencies
would be forced to comply with the law." ACWA notes that,
"Currently, when a customer is unable to pay his or her water
bill, the water agency eventually discontinues water service to
the property of the unpaid bill. Under this bill, a customer
has a right to water. If the water supplier were not allowed to
cut service because a customer could not afford water service,
other customers would have to subsidize service for those who
cannot afford service."
Additionally, some opponents of this bill argue that by
establishing a potentially enforceable human right to water,
this bill has uncertain legal implications which may result in
litigation.
COMMENTS
1.On the Human Right to Water:
Inspired by UN. In November 2002, the UN Committee on
Economic, Social and Cultural Rights adopted "General Comment
No. 15: The Right to Water." 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 states:
"The human right to water entitles everyone to sufficient,
safe, acceptable, physically accessible and affordable
water for personal and domestic uses."
The comment further 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.'"
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"Consider," "Infringe," And Other Concerns. 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 enacting this policy, the bill:
Would require state agencies to "consider" this policy,
Would not require any action to supply water for new
development, and
Would not "infringe" on requirements or responsibilities
of public water systems.
This bill appears to want to have its cake and eat it too. On
the one hand, it wants to ensure that all Californians have
access to safe, clean and affordable water - a laudable goal.
On the other hand, as drafted, the language doesn't appear to
compel anyone to actually do anything (concerns of the
opposition notwithstanding).
Staff conversations with some of the co-sponsors suggest that
what they really intend is the following:
Establish the right to water as state policy.
Require state agencies, only when they are otherwise
required to establish or revise a policy, regulation, etc.,
to address that right to water in the new or revised
policy.
Only apply that state policy to individuals - not to new
developments.
Not change the application of any of the laws under
which public water systems must operate, e.g. rate setting,
developing capital improvement plans, etc.
Another concern of some of the co-sponsors is that of cost
pressures - they don't want enactment of bill to cause state
or local agencies to immediately have to do anything that they
otherwise would not have had to do. (Indeed, that was the
motivation for the amendments taken in Assembly Appropriations
to change the language from "employs all reasonable means to
implement" to "consider".) Instead, they intend that the new
right be incorporated into state policy incrementally. Their
expectation is that over time the right to water will
eventually be reflected in all state policies, regulations,
etc.
Staff notes that there are other issues with the current
language beyond that just discussed, Including:
Construction - The author intends that the policy
providing for a human right to water be the overarching
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statement, and the rest of the section merely describe how
that policy is to be implemented. The current structure
does not do that.
Established Policy - This section is patterned after
�106 which codified as "established policy" that domestic
uses was the highest priority of use. That section was
enacted in 1943, but reflected statutory law established in
1913, and case law dating back even further. Section 106
clearly reflected "established policy." This policy,
however important, is not "established" in state law.
Regional Board - In addition to DWR, the State Board,
and the Dept. of Public Health, regional water quality
control boards clearly would also play an important role in
implementing this policy.
State Obligations - This bill limits the state's
responsibility to provide water or to require the
expenditure of additional resources to develop water
infrastructure to that which may arise from "considering"
the state policy. However, there are other
responsibilities that might arise beyond providing water or
developing water infrastructure. For example, the state
might be required to clean up a groundwater basin,
subsidize water rates, sue to compel action on the part of
others, etc.
The suggested amendments (see below) are intended to address
all of these issues.
Who Else? The bill, as suggested to be amended, clarifies
that the State's obligations to implement the new policy is
solely through new or revised policies, regulations, etc., and
that the policy does not impose any additional
responsibilities on public water systems. However, it is not
clear whether this new policy would impose new requirements
on, say, a city or county land use decision? Or perhaps a
LAFCO decision regarding an annexation or creating new special
district? It seems plausible.
It is not obvious what the author or the co-sponsors intend.
There are plausible public policy arguments for this new
policy to affect local governments on both sides. However, if
the intent of the author is that this new policy not affect
the decision making or obligations of other local governments,
it might be desirable to change the language in subdivision
(e) from "public water system" to "non-state agency" or some
other similar term.
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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 than just water for human
consumption and sanitation purposes. For example, under case
law, domestic purposes include the watering of barnyard
animals, but not herds raised for profit. This bill appears
to elevate, within 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. The ramifications of this are unclear.
Related Bills
Similar to AB 1243 (Ruskin) - Last session,
Assemblymember Ruskin carried a very similar bill, which
was vetoed by the Governor. The Governor's veto statement
expressed concerns about potential costly and constant
litigation as local water agencies tried to integrate
implementation of this new policy with the numerous other
requirements on such agencies established under the law.
The proposed amendments to this bill are intended to
diminish, if not eliminate, such concerns.
The Governor also asserted that it was not a lack of
resolve, but a lack of funding that prevented the provision
of clean, affordable, and accessible water.
The rest of "package" - According to the sponsors, this
bill is the centerpiece of a package of bills designed to
address the water needs of those without access to clean,
affordable, and accessible water. The other bills in that
package are:
o AB 938 (VM Perez) - Improves written public notice
to residents regarding contaminated drinking water by
requiring the notice to be in English, Spanish, and in
the language spoken by a significant number of residents.
o AB 983 (Perea) - Improves access to financial
assistance for projects serving small community water
systems.
o AB 1221 (Alejo) - Expands eligibility for funding
from the State Water Pollution Cleanup and Abatement
Account by allowing a not-for-profit organization and
specific American Indian tribes serving disadvantaged
communities to receive funding from the account for waste
cleanup.
o SB 244 (Wolk) - Requires cities, counties, and
LAFCOs to analyze infrastructure deficiencies in
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unincorporated disadvantaged communities.
1.On Integrated Regional Water Management Plans:
Could Help Water Quality. Basin Plans are developed by
regional water quality control boards to establish water
quality objectives and develop plans to ensure the reasonable
protection of beneficial uses of water, such as for human
consumption, cooking and sanitation, and the prevention of
nuisance. Such plans are required to include:
A description of the nature of actions which are
necessary to achieve the objectives, including
recommendations for appropriate action by any entity,
public or private.
A time schedule for the actions to be taken.
A description of surveillance to be undertaken to
determine compliance with objectives.
Making clear that IRWMPs may address or incorporate basin
plans in the IRWMP would likely help protect and improve water
quality.
1.On The As A Whole Bill:
What Does This Bill Do? Rules Committee staff have expressed
concerns that this bill, especially the previous version,
doesn't appear to do anything. While the bill would establish
a policy for a human right to water, the subsequent
subdivisions, as drafted, could be interpreted to mean, "But
no one has to actually do anything about it." Consequently,
if this bill is not amended to make clear that someone will
have to somehow change their behavior or practices as a result
of this bill, the bill runs the risk of being re-referred to
the Rules Committee. The amendments suggested in this
analysis are intended in part to reduce, if not eliminate,
that risk.
Positions Are Uncertain. This bill was amended on June 30,
referred to this committee on July 1, and this analysis is
being released on Tuesday, July 5. Consequently, there was
little time to ascertain the positions of various interest
groups on this bill. The support and opposition positions
listed in this analysis draw heavily from the April 26, 2011,
Assembly Water Parks & Wildlife Committee analysis of this
bill.
SUGGESTED AMENDMENTS: On page 2, amend lines 3 - 19 as follows:
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3 106.3. (a) It is hereby declared to be the
established It is the policy of
4 the state that every human being has the right to clean,
affordable,
5 and accessible water for human consumption, cooking, and
sanitary
6 purposes, that is adequate for the health and well-being of
the
7 individual and family.
8 (b) (a) All relevant state agencies, including the
department, the
9 state board, board, the regional water quality control
boards, and the State Department of Public Health, shall
10 consider this state policy when revising, adopting, or
establishing
11 policies, regulations, and grant criteria.
implement this policy when revising existing, or adopting or
establishing new policies, regulations, and grant criteria.
(b) Subdivision (a) shall apply only upon the revision of
existing policies, regulations, and grant criteria, and upon
the adoption of any new policies, regulations, or grant
criteria, on and after January 1, 2012.
12 (c) This section does not expand any obligation of the
state to
13 provide water or to require the expenditure of additional
resources
14 to develop water infrastructure beyond the obligations
that may
15 exist pursuant to subdivision (b) (a) .
16 (d) This section shall apply to water supplies for
individuals
17 and not for new development.
18 (e) The implementation of this section shall not
infringe on the
19 rights or responsibilities of any public water system.
(e) This section does not create or impose any additional
duties or responsibilities on any public water system.
SUPPORT
Environmental Justice Coalition for Water (Co-Sponsor)
Food & Water Watch (Co-Sponsor)
Unitarian Universalist Legislative Ministry Action Network,
California (Co-Sponsor)
Unitarian Universalist Service Committee (Co-Sponsor)
Alliance for Democracy
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Asociacion de Gente Unida por el Agua
California Coastkeeper Alliance
California League of Conservation Voters
California Rural Legal Assistance Foundation
Catholic Charities Diocese of Stockton
Clean Water Action
Committee for a Better Seville
Community Water Center
Natural Resources Defense Council
Planning & Conservation League
Self-Help Enterprises
Sierra Club California
Southern California Watershed Alliance
United for Change in Tooleville
Urban Semillas
Vecinos Unidos
Winnemem Wintu Tribe
Women's International League for Peace & Freedom, Fresno Section
Women's International League for Peace & Freedom, U.S. Section
Hundreds of individuals
OPPOSITION
Association of California Water Agencies
California Chamber of Commerce
California Water Association
California Water Service Company
Cucamonga Valley Water District
Desert Water Agency
East Valley Water District
El Dorado Irrigation District
Friant Water Authority
Western Growers
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