AB 2218 adds Section 106.2 to the California Water Code. It declares that the state will acknowledge and correct inequities inflicted on California Native American tribes by past state-sanctioned acts of termination, removal, and assimilation, and it identifies compensation, legal recognition of rights, or replacement of lost benefits as potential remedies.
The bill directs relevant state agencies — naming the Department of Water Resources and the State Water Resources Control Board as examples — to take this policy into account when they revise, adopt, or establish rights, policies, regulations, permits, or grant criteria that could address identified inequities. The change is declarative rather than programmatic: it sets a policy duty for agencies but does not itself create a funding stream or a specific remediation program.
At a Glance
What It Does
The bill adds a new Water Code section that declares a state policy to acknowledge and correct harms caused by historical state actions against California Native American tribes and lists compensation, legal recognition, or replacement of lost benefits as responses. It requires relevant state agencies to consider and incorporate that policy when they revise, adopt, or establish rights, policies, regulations, permits, or grant criteria.
Who It Affects
The directive explicitly calls out the Department of Water Resources and the State Water Resources Control Board and, by using inclusive language, reaches other state agencies that regulate water rights, permits, or grant programs. It also directly concerns California Native American tribes and stakeholders who apply for or hold water rights, permits, or state-administered water grants.
Why It Matters
Codifying this policy changes the default lens state water regulators must use during rulemaking and permitting, which can shift permit conditions, grant scoring, and policy priorities. For agencies and regulated parties, the bill signals that historical inequities should be a factor in contemporary water decisions — with potential operational, fiscal, and legal consequences.
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What This Bill Actually Does
AB 2218 inserts a short but consequential statement of state policy into the Water Code. The statute first declares the state's obligation to acknowledge and correct inequities imposed on California Native American tribes by state-sanctioned termination, removal, and assimilation.
It identifies three broad remedy types — compensation, legal recognition of rights, and replacement of benefits lost — but does not prescribe how or when any of those remedies must be delivered.
The operative duty is placed on "all relevant state agencies". The bill names the Department of Water Resources and the State Water Resources Control Board as examples and requires agencies to "consider and incorporate" the declared policy when they revise, adopt, or establish rights, policies, regulations, permits, or grant criteria.
That language reaches administrative actions across the rulemaking, permitting, and grantmaking spectrum rather than creating a single program or appropriation.Because the statute is framed as a policy directive rather than an enforcement provision, its practical effect will depend on how agencies interpret "consider and incorporate." Agencies drafting new regulations may add evaluative criteria, change scoring for grants, require tribal consultation, or attach mitigation and restoration conditions to permits. Conversely, agencies could treat the duty as advisory and provide minimal changes unless further implementing guidance, budget authority, or litigation compels deeper action.The bill's broad scope raises implementation questions that agencies will have to resolve administratively: which harms qualify as "state-sanctioned" for purposes of remedial action, what process establishes an "identified inequity," how to weigh competing water uses, and whether remedies will be monetary, in-kind (infrastructure, access), or legal (recognition of rights).
Those questions intersect with existing water-rights law, federal tribal law, and other state policies, so operationalizing Section 106.2 will require cross-agency coordination and likely negotiation with tribal governments.
The Five Things You Need to Know
AB 2218 creates Water Code Section 106.2(a), a statutory declaration that the state must acknowledge and correct inequities inflicted on all California Native American tribes by state-sanctioned termination, removal, and assimilation.
Section 106.2(b) requires "all relevant state agencies," explicitly including the Department of Water Resources and the State Water Resources Control Board, to consider and incorporate the declared policy when revising, adopting, or establishing rights, policies, regulations, permits, or grant criteria.
The statute names three remedy categories — compensation, legal recognition of rights, and replacement of benefits lost — but does not define those categories or prescribe processes or timelines for delivering remedies.
The bill is declaratory and contains no appropriation or specific funding mechanism; it leaves agencies to implement the policy within existing statutory and budgetary frameworks.
By using the phrase "all California Native American tribes," the text reaches state and nonfederally recognized tribes and puts the obligation to address harms at the state-administration level rather than creating a federal or tribal adjudication pathway.
Section-by-Section Breakdown
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Statutory declaration of corrective state policy
Subsection (a) codifies an explicit state policy that acknowledges historical harms inflicted by state-sanctioned termination, removal, and assimilation, and it lists compensation, legal recognition of rights, or replacement of benefits lost as acceptable forms of remediation. The provision functions as a legislative signal that future administrative and policy decisions should be read through the corrective lens established here; it does not itself create a private right of action, an appropriation, or a detailed remedy process.
Agency duty to consider the policy in administrative actions
Subsection (b) directs "all relevant state agencies" to consider and incorporate the declared policy when they revise, adopt, or establish rights, policies, regulations, permits, or grant criteria. The text names the Department of Water Resources and the State Water Resources Control Board but uses inclusive language to capture other agencies involved in water decisionmaking. Practically, this requires agencies to translate a high-level goal into changes to rulemaking language, permit evaluation standards, grant selection criteria, or other administrative processes.
How agencies might operationalize 'consider and incorporate'
Because the bill does not provide implementing definitions or procedures, agencies will need to define what qualifies as an "identified inequity," set standards for consultation with tribes, and decide whether and how to quantify harms. Typical administrative responses could include revising permit application checklists, adding equity factors to grant scoring, attaching conditions to new permits, or initiating negotiated settlements with tribes. Agencies will also need to assess staffing, data, and legal resources to support these changes.
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Explore Indigenous Affairs in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- California Native American tribes: The statute explicitly centers tribes as the intended beneficiaries, creating a state-policy basis for compensation, recognition of rights, or replacement benefits and giving tribes a stronger claim to be part of water-policy decisions.
- Tribal water users and communities: If agencies incorporate the policy substantively, households and community facilities could gain improved access to water services, infrastructure investments, or legal protections tied to culturally important water uses.
- Tribal governments and negotiators: The policy provides a legislative lever for tribes to request or negotiate remedies, settlements, or recognition in administrative proceedings and grant processes.
- Environmental justice and advocacy organizations: Groups focused on rectifying historical harms may find clearer statutory backing when advocating changes to permits, grants, or regulations that affect tribal water equity.
Who Bears the Cost
- State agencies (DWR, SWRCB, and others): Agencies must allocate staff time, legal analysis, and possibly new programmatic capacity to identify inequities, redesign grant criteria, update permit procedures, and engage in tribal consultation — all without a specified appropriation in the bill.
- Permit applicants and current water right holders: Applicants for permits or grants may face new evaluation criteria, additional mitigation conditions, longer review timelines, or negotiated settlements that could increase compliance costs or alter project feasibility.
- Local water agencies and utilities: Entities that depend on state grants or permits may need to adapt proposals or budgets to meet new equity-focused criteria or contribute to replacement-benefit measures, increasing administrative burden and potential costs.
- State budget and taxpayers (indirectly): If agencies move from policy to tangible remedies like compensation or infrastructure replacement, funding will be required; absent an appropriation, future budget requests or reallocations would impose fiscal trade-offs elsewhere.
Key Issues
The Core Tension
The central dilemma is between the moral and policy imperative to correct historic, state-inflicted harms to California Native American tribes and the legal, fiscal, and administrative constraints of altering contemporary water governance: rectifying past wrongs may demand substantive changes to permits, rights, and budgets that clash with existing property interests, statutory priorities, and limited public resources.
AB 2218 is short and programmatically thin by design: it creates a policy imperative but leaves the heavy lifting to administrative agencies. That approach provides flexibility but also raises legal and operational ambiguity.
The phrase "consider and incorporate" is intentionally indeterminate — it can be read as a substantive constraint on agency discretion or as an advisory principle that agencies fulfill minimally during routine rulemaking. Courts reviewing agency action will have to decide how much deference to give to the statute and how to measure compliance, creating potential litigation risk.
Another practical tension is funding and capacity. The bill identifies compensation and replacement of lost benefits as remedies, but it does not create a funding mechanism or timeline.
Agencies wanting to provide concrete remediation will need budget authority, interagency coordination, and methods to identify eligible harms and recipients. That work intersects with existing water-rights law, federal tribal law protections, and other state policies (for example, domestic-use priority), so operationalizing remedies could require legislative follow-up or negotiated settlements to allocate resources and resolve legal conflicts.
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