Are privately owned mutual water companies exempt from California city and county building and zoning ordinances?
Apply this to your situation
This page answers the general question as of 2026. Ezel answers yours: what it means for your facts, under current California law, with citations.
Plain-English summary
State Senator Kelly Seyarto asked whether Government Code section 53091's exemptions from city and county building and zoning ordinances cover every California "public water system," including privately owned systems operated by mutual water companies.
The opinion answered no. In California drinking-water law, "public water system" describes the number and nature of customers served, not whether the system is government-owned. Many public water systems are privately owned. Section 53091, however, addresses "local agencies" of the state and the extent to which those public entities retain sovereign immunity from local building and zoning regulation.
The opinion reads section 53091 as a coordinated scheme. Subdivision (a) generally subjects local state agencies to city and county building and zoning ordinances. Subdivisions (d) and (e) preserve immunity for specified public water and power projects. Those exemptions limit the statutory waiver of governmental immunity; they do not independently create immunity for private companies that never possessed it.
Accordingly, privately owned public water systems, including mutual water companies, remain subject to applicable local building and zoning ordinances. The result does not change merely because private and public systems both comply with the California Safe Drinking Water Act or provide the same essential drinking-water service.
What this means for you
Privately owned public water systems and mutual water companies
The opinion holds that section 53091 does not exempt privately owned systems from applicable city or county building and zoning ordinances. State classification as a "public water system," compliance with statewide drinking-water requirements, and performance of a public service do not make a privately owned system an "agency of the state."
City and county planning and building departments
Under the opinion, local building and zoning ordinances continue to apply to privately owned water-system projects. The statutory exemptions discussed apply to facilities of qualifying public local agencies, not to private commercial projects.
Public water agencies
The opinion distinguishes publicly owned water systems from private ones. It treats section 53091's water-facility exemptions as preserving the preexisting sovereign immunity of qualifying local agencies for the projects described in subdivisions (d) and (e).
Water-law attorneys and state policymakers
The opinion relies on the statute's text, structure, history, and sovereign-immunity purpose. It acknowledges arguments that private systems should receive benefits parallel to the burdens imposed by drinking-water law, but concludes that changing the building-and-zoning treatment would require a different statutory rule.
Common questions
Q: Doesn't "public water system" mean the system is publicly owned?
A: No. The opinion explains that the term generally covers systems with at least 15 service connections or those regularly serving at least 25 people; many are privately owned.
Q: Do mutual water companies receive section 53091's building exemption?
A: No. The opinion concludes that subdivision (d) protects qualifying local agencies and does not exempt private water companies.
Q: Does subdivision (e)'s zoning exemption apply to private systems because it omits the words "local agency"?
A: No. Reading the statute as a whole, its history, and Delta Wetlands, the opinion concludes that subdivision (e), like subdivision (d), concerns only local agencies.
Q: Does statewide drinking-water regulation turn a private water company into a public agency?
A: No. The opinion says private and public systems share drinking-water obligations, but private ownership means the system is not an agency of the state for section 53091.
Q: Are publicly owned water systems always exempt from every local ordinance?
A: The opinion does not state a blanket exemption. It discusses the specified building and zoning exemptions for qualifying local-agency water facilities under section 53091, subdivisions (d) and (e).
Background and statutory framework
California law defines a "public water system" by scale and service: generally, a system providing drinking water through constructed conveyances with 15 or more service connections or regularly serving at least 25 people. Public and private operators alike are subject to the California Safe Drinking Water Act, including permitting, construction standards, testing, management, and public-health requirements.
Government Code section 53091 addresses a different subject. After the Hall decision, the Legislature enacted the statute to strengthen local planning authority by generally requiring local agencies of the state to comply with city and county building and zoning ordinances. The statute then preserves immunity for specified public water and power facilities. Its definition of "local agency" requires an "agency of the state," which excludes a privately owned company.
The opinion gives special attention to subdivision (e), whose current zoning language does not repeat "local agency." It relies on Delta Wetlands Properties v. County of San Joaquin, the original 1959 text, and later legislative history to conclude that this omission did not expand the exemption to private projects. In the opinion's reading, both subdivisions (d) and (e) remain exceptions to the rule governing local public agencies.
Citations and references
Statutes:
- Gov. Code, § 53091, the local building-and-zoning compliance rule and specified exemptions
- Gov. Code, § 53091, subd. (a), generally requiring each local agency to comply with applicable local ordinances
- Gov. Code, § 53091, subds. (d) and (e), exemptions for specified water and power facilities
- Gov. Code, § 53090, subd. (a), defining "local agency" as an agency of the state
- Health & Saf. Code, § 116275, subd. (h), defining "public water system"
- Health & Saf. Code, §§ 116270-116755, the California Safe Drinking Water Act
- Corp. Code, §§ 14300.5, 14301.1-14301.3, provisions concerning mutual water companies
- Cal. Const., art. XI, § 9, recognizing public and private water-service providers
Cases:
- Delta Wetlands Properties v. County of San Joaquin (2004) 121 Cal.App.4th 128, section 53091 does not apply to private projects
- Hall v. City of Taft (1956) 47 Cal.2d 177, state sovereign immunity from local regulation before section 53091
- City of Hesperia v. Lake Arrowhead Community Services Dist. (2019) 37 Cal.App.5th 734, balancing local zoning control against efficient water storage and transmission
- City of Lafayette v. East Bay Mun. Utility Dist. (1993) 16 Cal.App.4th 1005, the statute's limited waiver and specified exceptions
- Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, a water district as a local agency
- Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, statutory text read in context
- Mendoza v. Fonseca McElroy Grinding Co., Inc. (2021) 11 Cal.5th 1118, major policy changes are not hidden in minor textual changes
Source
- Landing page: https://oag.ca.gov/opinions/yearly-index
- Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/24-1101.pdf
Original opinion text
TO BE PUBLISHED IN THE OFFICIAL RECORDS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION :
: No. 24-1101
of :
: May 20, 2026
ROB BONTA :
Attorney General :
:
SUSAN DUNCAN LEE :
Deputy Attorney General :
The HONORABLE KELLY SEYARTO, STATE SENATOR, has requested an
opinion on a question relating to local regulation of public water systems.
QUESTION PRESENTED AND CONCLUSION
Do the exemptions from local building and zoning ordinances set forth in
Government Code section 53091 apply to all California “public water systems,”
including those privately owned by mutual water companies?
No, the exemptions from local building and zoning ordinances set forth in
Government Code section 53091 do not apply to privately owned public water systems,
such as those owned by mutual water companies, but apply only to publicly owned water
systems.
BACKGROUND
California’s Constitution authorizes both public agencies and private companies to
operate public water systems. 1 State law classifies a water system that delivers drinking
1
See Cal. Const., art. XI, § 9, subd. (a) (“A municipal corporation may establish,
(continued…)
1
24-1101
water to 15 or more connections as a “public water system,” regardless of whether the
system is publicly or privately owned. 2 An information sheet published by the State
Water Resources Control Board explains:
Many people think of public water systems as large city or regional water
suppliers, but they also include small housing communities, businesses and
even schools and restaurants that provide water. A public water system is
not necessarily a public entity, and most public water systems are privately
owned. 3
Accordingly, despite its nomenclature, a “public water system” is not necessarily a
public agency. Rather, a “public water system” is a water system generally having 15 or
more service connections or servicing at least 25 individuals per day. 4 Thus the word
purchase, and operate public works to furnish its inhabitants with . . . water”); id.,
subd. (b) (“Persons or corporations may establish and operate works for supplying
[water] services upon conditions and under regulations that the city may prescribe under
its organic law”).
2
Health and Safety Code section 116275(h) states:
“Public water system” means a system for the provision of water for human
consumption through pipes or other constructed conveyances that has 15 or
more service connections or regularly serves an average of at least 25
individuals daily at least 60 days out of the year. A public water system
includes the following:
(1) Any collection, treatment, storage, and distribution facilities under
control of the operator of the system that are used primarily in connection
with the system.
(2) Any collection or pretreatment storage facilities not under the control of
the operator that are used primarily in connection with the system.
(3) Any water system that treats water on behalf of one or more public
water systems for the purpose of rendering it safe for human consumption.
3
Cal. Water Resources Control Board, What is a Public Water System?,
https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/documents/waterp
artnerships/what_is_a_public_water_sys.pdf (as of May 18, 2026); cf. Cal. Water Quality
Monitoring Council, Unregulated Drinking Water, https://mywaterquality.ca.gov/safe-to-
drink/unregulated-drinking-water.html (as of May 18, 2026) (“Unlike regulated water
supplies, people who obtain their drinking water from an unregulated water supply, such
as a privately drilled well, a shallow dug well, a stream, a spring, a pond, a lake, or a
cistern, are responsible for determining the safety of the water themselves”).
4
Health & Saf. Code, § 116275, subd. (h).
2
24-1101
“public” in “public water system” refers to the number and nature of consumers receiving
water service, not to the status of the entity providing the service.
Public or private, all “public water systems” in California are subject to the Safe
Drinking Water Act, which imposes a range of requirements on systems that supply
drinking water to consumers. 5 The Act imposes construction standards for building and
upgrading waterworks; 6 criteria governing the organization, operation, and management
of public water systems; 7 water testing; 8 mitigation measures when needed to bring water
up to standards; 9 and associated technical and fiscal support programs. 10
The regulatory structure is enforced by requiring a public water system operator to
hold a permit from the Water Resources Control Board. 11 The Board may revise or
amend the permit, imposing new requirements or demanding correction of deficiencies,
whenever necessary to protect public health. 12
In addition to these statewide requirements, public water systems may be subject
to city and county regulations, such as zoning and building ordinances. A zoning
ordinance is local legislation regulating the use of land and buildings, such as rules
designating specified areas for residential, commercial, or other uses, and rules
controlling the location, scale, or density of development. 13 A building ordinance is local
legislation regulating the construction, alteration, or materials used in buildings and other
5
Health & Saf. Code, § 116270, subd. (e) (“This chapter is intended to ensure that the
water delivered by public water systems of this state shall at all times be pure,
wholesome, and potable”); see generally California Safe Drinking Water Act, Health &
Saf. Code, §§ 116270-116755 (applying clean water laws to all public water systems);
Corp. Code, §§ 14300.5, 14301.1-14301.3 (providing for formation of mutual water
companies and subjecting them to clean water laws).
6
See Health & Saf. Code, § 116275, subd. (q) (for purposes of California Safe Drinking
Water Act, “waterworks standards” means regulations adopted at Cal. Code Regs., tit. 22,
ch. 16, §§ 64551-64644).
7
See Health & Saf. Code, §§ 116600-116601.
8
See Health & Saf. Code, §§ 116287, subd. (c), 116385-116400.
9
See Health & Saf. Code, § 116525, subd. (c).
10
State Water Resources Control Board, Financial Assistance Funding—Grants and
Loans, https://www.waterboards.ca.gov/water_issues/programs/grants_loans/ (as of May
18, 2026).
11
See Health & Saf. Code, § 116525.
12
See ibid.
13
See Gov. Code, § 65850 (local zoning power).
3
24-1101
structures. 14 The question here is whether privately owned public water systems are
treated the same as publicly owned public water systems for purposes of Government
Code section 53091, which exempts certain public water projects from local building and
zoning ordinances. We conclude the exemptions do not apply to privately owned
systems.
ANALYSIS
Government Code Section 53091 Exempts Designated Public Agencies from Local
Building and Zoning Ordinances.
Under Government Code section 53091, certain public agencies are exempted
from local building and zoning ordinances. Section 53091 states in relevant part:
(a) Each local agency shall comply with all applicable building ordinances
and zoning ordinances of the county or city in which the territory of the
local agency is situated.
[⁋⁋]
(d) Building ordinances of a county or city shall not apply to the location or
construction of facilities for the production, generation, storage, treatment,
or transmission of water, wastewater, or electrical energy by a local agency.
(e) Zoning ordinances of a county or city shall not apply to the location or
construction of facilities for the production, generation, storage, treatment,
or transmission of water, or for the production or generation of electrical
energy, facilities that are subject to Section 12808.5 of the Public Utilities
Code, or electrical substations in an electrical transmission system that
receives electricity at less than 100,000 volts. Zoning ordinances of a
county or city shall apply to the location or construction of facilities for the
storage or transmission of electrical energy by a local agency, if the zoning
ordinances make provision for those facilities.
Our task here is to determine whether privately owned public water systems fall
within the prescribed exemptions. When we interpret statutory language, our primary
purpose is to give effect to the intent of the Legislature. 15 We begin by examining the
text of the statute, giving it a plain and commonsense meaning. We then consider the
14
See Gov. Code, § 53090, subd. (b) (defining “building ordinances”); id., § 38660 (local
building regulation power).
15
Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 856.
4
24-1101
meaning of that language as it occurs in the context of the whole statutory framework, to
understand its scope and purpose and to harmonize the various parts of the law. 16
Before section 53091 was enacted in 1959, the prevailing rule was that the State of
California, its subdivisions, and its agencies were all immune from local regulation as an
aspect of the state’s sovereignty. In Hall v. City of Taft (1956) 47 Cal.2d 177, the
California Supreme Court ruled that when the state “engages in such sovereign activities
as the construction and maintenance of its buildings, . . . it is not subject to local
regulations unless the Constitution says it is or the Legislature has consented to such
regulation.” 17 In response to the Hall decision, the Legislature departed from that default
rule and generally subjected local state-created agencies to local regulation by enacting
section 53091. In section 53091, the Legislature’s intent was “to vest in cities and
counties control over zoning and building restrictions, thereby strengthening local
planning authority.” 18
Consistent with that purpose, section 53091 begins by subjecting certain state
agencies to local building and zoning ordinances, and then goes on to carve out
exceptions to the general rule, including exceptions for water and power works. Section
53091(a) embodies the Legislature’s waiver of sovereign immunity for the limited
purpose of respecting city and county building and zoning ordinances. 19 Subdivision (a)
states: “Each local agency shall comply with all applicable building ordinances and
zoning ordinances of the county or city in which the territory of the local agency is
situated.”
The term “local agency” is defined in section 53090 as “an agency of the state for
the local performance of governmental or proprietary function within limited
boundaries.” 20 The definition excludes the state, a city, a county, a rapid transit district,
and certain rail transit districts. 21 It includes a variety of special districts and special-
purpose local agencies, such as school districts, community service districts, and county
16
Id. at pp. 856-857.
17
Hall v. City of Taft, supra, 47 Cal.2d at p. 183 (local building ordinances did not apply
to a public school district organized under state law).
18
City of Hesperia v. Lake Arrowhead Community Services Dist. (2019) 37 Cal.App.5th
734, 752.
19
See City of Malibu v. Santa Monica Mountains Conservancy (2002) 98 Cal.App.4th
1379, 1383; City of Lafayette v. East Bay Mun. Utility Dist. (1993) 16 Cal.App.4th 1005,
1013.
20
Gov. Code, § 53090, subd. (a).
21
Ibid.
5
24-1101
water agencies. 22 Thus, the result of the sovereign immunity waiver in section 53091(a)
is to subject local agencies of the state to local building and zoning ordinances in most
circumstances.
Subdivisions (d) and (e) then carve out exceptions to the general rule, by
maintaining sovereign immunity for local agencies of the state when it comes to certain
water and power projects. Relevant here, subdivision (d) provides that city or county
building ordinances do not apply to “the location or construction of facilities for the
production, generation, storage, treatment, or transmission of water . . . by a local
agency.” Subdivision (e) provides that local zoning ordinances do not apply to “the
location or construction of facilities for the production, generation, storage, treatment, or
transmission of water.”
Thus, when the provisions of section 53091 are read together and in context, they
reveal the intent of the Legislature “to strike a balance between the value of local zoning
control by cities and counties and the state interest in efficient storage and transmission of
water.” 23
A Privately Owned Water System Is Not a “Local Agency” for Purposes of Section
53091.
That brings us to the question presented here, which is whether privately owned
public water systems enjoy the same immunity from local ordinances as publicly owned
public water systems do, under Government Code section 53091, subdivisions (d) and
(e).
Courts confronting that, and analogous, questions have concluded that only
government agencies enjoy section 53091 immunity from local building and zoning
regulations, not privately owned systems. 24 For instance, in Delta Wetlands Properties v.
County of San Joaquin (2004) 121 Cal.App.4th 128, 135, the court unequivocally stated
in addressing a closely related question, “Government Code section 53091 does not apply
to private projects.” Similarly, our prior opinions concerning section 53091 have
declined to extend immunity from local ordinances to privately owned companies
22
See City of Hesperia v. Lake Arrowhead Community Services Dist., supra, 37
Cal.App.5th at pp. 741, 749 (community services district); Friends of the Eel River v.
Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 879-880 (water district).
23
City of Hesperia v. Lake Arrowhead Community Services Dist., supra, 37 Cal.App.5th
at p. 752.
24
See Delta Wetlands Properties v. County of San Joaquin (2004) 121 Cal.App.4th 128,
135; Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 170; Kehoe v.
City of Berkeley (1977) 67 Cal.App.3d 666, 672-673.
6
24-1101
performing private projects. 25 Each of these authorities is consistent with the
fundamental purpose of section 53091 to confer a limited waiver of state sovereignty as
to local building and zoning ordinances. The request before us nevertheless asks us to
consider whether privately owned public water systems also qualify for the section 53091
immunity from local building and zoning regulations. We conclude that they do not.
As described above, the state and its agencies are generally immune from city and
county regulation due to sovereign immunity. Section 53091(a) partially waives that
immunity, allowing cities and counties to regulate the activities of designated local
agencies. The exceptions in subdivisions (d) and (e) then limit that waiver, maintaining
local agencies’ sovereign immunity for projects relating to water and power transmission.
By carving out exceptions in this way, subdivisions (d) and (e) maintain agencies’
preexisting sovereign immunity from regulation.
But privately owned water systems have no such immunity. The Legislature’s
waiver of sovereign immunity in section 53091(a) therefore does not apply to them. And
because the exemptions in subdivisions (d) and (e) are best understood as carving out
exceptions to the waiver of immunity in subdivision (a)—and do not themselves serve as
independent sources of immunity—those exemptions do not immunize privately owned
entities from local laws. Privately owned systems remain subject to all applicable local
building and zoning ordinances, just as they did before section 53091’s enactment.
That understanding of the Legislature’s intent is reflected in the statutory text.
Section 53091(a) states that, “Each local agency shall comply with all applicable building
ordinances and zoning ordinances of the county or city in which the territory of the local
agency is situated.” 26 Subdivision (d) then limits that waiver of immunity, stating that,
“Building ordinances of a county or city shall not apply to the location or construction of
facilities for the production, generation, storage, treatment, or transmission of water,
wastewater, or electrical energy by a local agency.” 27
We note again that Government Code section 53090 defines “local agency” as “an
agency of the state for the local performance of governmental or proprietary function
within limited boundaries.” 28 The definition specifies that a “local agency” is an “agency
25
See 101 Ops.Cal.Atty.Gen. 88, 89 (2018); 68 Ops.Cal.Atty.Gen. 114, 119 (1985)
(“This section exempts the state from regulation. It in no way purports to exempt private
parties from regulation when engaged in their own private pursuits”).
26
Gov. Code, § 53091, subd. (a), italics added.
27
Gov. Code, § 53091, subd. (d), italics added.
28
Government Code section 53090(a) states:
(continued…)
7
24-1101
of the state.” So even if a privately owned public water system, such as a mutual water
company, could engage in “the local performance of a governmental or proprietary
function within limited boundaries,” a privately owned system still fails to meet the
definition of “an agency of the state.” A privately owned entity is not owned or
controlled by state government; it is not a component of the state. 29 Nor is the provision
of water necessarily a sovereign function: As the California Constitution provides, water
service may be supplied by privately owned entities as well as by publicly owned
agencies. 30 And construing the term “local agency” to exclude private entities advances
the statute’s central purpose of waiving sovereign immunity for designated entities; it
makes no sense to waive immunity for private entities that have no immunity in the first
place. 31
In sum, Government Code section 53091 does not apply to privately owned public
water systems. If the statute does not apply to privately owned systems, then the
exceptions in the statute do not apply either.
Subdivision (e) Does Not Extend Immunity to Privately Owned Water Systems.
Despite our assessment that section 53091 does not apply to privately owned water
systems at all, we give section 53091(e) additional attention, as it presents unique textual
considerations. Subdivision (e), unlike subdivision (d), does not specify that the
provision applies to a “local agency.” Subdivision (e) states in relevant part: “Zoning
ordinances of a county or city shall not apply to the location or construction of facilities
for the production, generation, storage, treatment, or transmission of water.” The absence
of the term “local agency” gives rise to an argument that subdivision (e) is not limited to
“Local agency” means an agency of the state for the local performance of
governmental or proprietary function within limited boundaries. “Local
agency” does not include the state, a city, a county, a rapid transit district,
or a rail transit district whose board of directors is appointed by public
bodies or officers or elected from election districts within the area
comprising the district, or a district organized pursuant to Part 3
(commencing with Section 27000) of Division 16 of the Streets and
Highways Code.
29
See Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/of (as
of May 18, 2026) (“of” definitions include “used as a function word to indicate belonging
or a possessive relationship”).
30
See Cal. Const., art. XI, § 9, subds. (a) (public agencies), (b) (private entities).
31
We note that the term “local agency” may have different meanings in different
contexts. (E.g., Community Action Agency of Butte County v. Superior Court of Butte
County (2022) 79 Cal.App.5th 221, 234-239 [test for “local agency” under Brown Act].)
8
24-1101
the water projects of “local agencies,” and therefore that subdivision (e) also applies to
privately owned public water systems—even if subdivision (d) does not.
But as already explained, the statutory context strongly suggests the opposite. The
Court of Appeal addressed this issue in Delta Wetlands, stating:
The general rule of Government Code section 53091 is set forth in
subdivision (a). . . . The exceptions to the rule are contained in subdivisions
(d) and (e). . . . Without the exceptions the general rule of subdivision (a)
would apply. So it is plain the exceptions concern only the general rule. It
would make no grammatical sense to except private commercial projects
from a rule that does not apply to them. 32
The court’s analysis is supported by section 53091’s history and structure. As
described above, the statute’s function is to waive the immunity of “local agencies of the
State” from local building and zoning ordinances, while carving out “carefully specified
exceptions” for water and power works. 33 The statute appears in a part of the
Government Code that defines the powers and duties of municipal agencies. 34 Not a
single other provision in the statute references private companies. Given the history,
purpose, and structure of section 53091, we agree with the Court of Appeal that
subdivision (e), like subdivision (d), applies only to local agencies.
That understanding finds further support in the legislative record. When first
enacted in 1959, the statute’s exemptions for building and zoning ordinances were
contained in a single sentence, which was expressly limited to local agencies. It stated:
“Building ordinances and zoning ordinances of a county or city shall not apply to the
location or construction of facilities for the production, generation, storage, or
transmission of water or electrical energy by a local agency.” 35 There was thus no
question that the exemption for zoning ordinances, which today appears in section
53091(e), did not apply to privately owned water systems.
32
Delta Wetlands Properties v. County of San Joaquin, supra, 121 Cal.App.4th at p. 141;
see also People v. Sischo (1943) 23 Cal.2d 478, 493 (“It is an accepted rule of statutory
construction that a proviso is used to limit and qualify that which immediately precedes
it . . .”).
33
City of Lafayette v. East Bay Mun. Utility Dist., supra, 16 Cal.App.4th at p. 1017.
34
See Delta Wetlands Properties v. County of San Joaquin, supra, 121 Cal.App.4th at
p. 138 (“Section 53091 is contained within Title 5, Division 2, Part 1, Chapter 1, Article
5 of the Government Code. Title 5 is entitled ‘Local Agencies.’ Division 2 is entitled
‘Cities, Counties and Other Agencies.’ Article 5 is entitled ‘Regulation of Local Agencies
by Counties and Cities’”).
35
Stats. 1959, ch. 2110, § 1, p. 4908, italics added.
9
24-1101
In 1977, the Legislature expanded the zoning-ordinance exemptions to immunize
certain projects of a public utility (which are also treated as “local agencies” under
section 53091). 36 The 1977 amendments separated exemptions from zoning ordinances
and exemptions from building ordinances into two different sentences; in the process, the
phrase “local agency” dropped out of the zoning-ordinance provision. 37 It is improbable
that the omission was intended to be material. “Private parties are not the subject of this
statutory scheme and it would have been at odds with it to include them.” 38 There is no
evidence in the legislative record to support a theory that the Legislature intended to
bring about a major policy change like exempting privately owned water agencies from
local building and zoning regulations by merely eliminating the words “local agency”
from one sentence of the statute. 39
In 2002, the Legislature further amended section 53091 to fine-tune the building-
and zoning-ordinance exemptions, which by now appeared in subdivisions (d) and (e). 40
A contemporaneous analysis of that bill by the Senate Rules Committee’s Office of Floor
Analyses described the proposed changes this way:
Senate Bill 1711 exempts from county or city building ordinances the
improvement of a local agency’s facilities for the production, generation,
storage, treatment, or transmission of water, wastewater, or electrical
energy. SB 1711 also exempts from building ordinances a local agency’s
facilities for the treatment of water, wastewater, or electrical energy.
The bill exempts from county or city zoning ordinances the
improvement of a local agency’s facilities for the production, generation,
36
See Delta Wetlands Properties v. County of San Joaquin, supra, 121 Cal.App.4th at
pp. 139-140 (municipal utility district is “local agency” for purposes of section 53091).
37
Stats. 1977, ch. 435, § 1, p. 1468.
38
Delta Wetlands Properties v. County of San Joaquin, supra, 121 Cal.App.4th at p. 140.
39
See, e.g., Mendoza v. Fonseca McElroy Grinding Co., Inc. (2021) 11 Cal.5th 1118,
1134-1135 (legislatures do not typically “hide elephants in mouseholes”); Jones v. Lodge
at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1171 (same).
40
See Sen. Rules Committee, Off. Of Sen. Floor Analyses, analysis of Sen. Bill 1711
(2001-2002 Reg. Sess.) as amended May 30, 2002, p. 3 (“Cities, counties, and special
districts have all acted for some time on the understanding that existing law regarding
exemptions from building and zoning ordinances included water treatment facilities.
This bill restores the equilibrium that has been upset by the Topsail [Homeowners Assn. v
County of Santa Cruz and Soquel Creek Water Dist. (2002) 95 Cal.App.4th 835] decision
by explicitly including ‘treatment’ in the enumeration of the sorts of facilities to which
this exemption applies”).
10
24-1101
storage, treatment, or transmission of water, or the production or generation
of electrical energy.
SB 1711 allows a local agency to render a city or county zoning
ordinance inapplicable to proposed improvements to existing facilities
related to the storage or transmission of water or electrical energy. 41
The Legislature’s understanding of the statute in the bill analysis reinforces our
view that the exemption in section 53091(e) applies to local agencies, and not privately
owned systems.
Some Argue that Privately Owned Water Systems Should Be Treated the Same as
Publicly Owned Water Agencies.
Commenters have urged us to reach a different conclusion in light of changes in
the law pertaining to public water systems. Some commenters point to legislation passed
in 2011, Assembly Bill 54, which was designed to “level the playing field between public
water agencies and mutual water companies.” AB 54 provided privately owned water
systems, including mutual water companies, with new access to funding for clean water
projects while holding them to new fiscal and operational requirements of the California
Safe Drinking Water Act. 42 In enacting the bill, the Legislature made findings and
declarations, including the following:
Californians rely on a broad diversity of public and private organizations to
deliver clean and safe drinking water to their home water taps. Regardless
of the form of the organization that operates a public water system, these
organizations provide a public service that remains one of the core duties of
the people’s government. 43
Considering these findings and declarations in AB 54, commenters argue that
privately owned water agencies should be treated the same as public water agencies when
it comes to immunity from local building and zoning ordinances. In general terms, they
argue that private water companies should be treated like public agencies because they
perform the same “core duty” and “public service” of providing clean drinking water, as
stated in the findings and declarations supporting AB 54. Commenters noted that
privately owned water agencies are subject to the same burdens of complying with the
California Safe Drinking Water Act as public agencies, and they face the same technical
41
Sen. Local Gov. Comm., analysis of Sen. Bill No. 1711 (2001-2002 Reg. Sess.) as
amended April 24, 2002, p. 2, italics added.
42
Assem. Floor Analysis, Assem. Bill No. 54 (2011-2012 Reg. Sess.) as amended Aug.
30, 2011, p. 4; see generally Corp. Code, §§ 14300.5, 14301.3 (mutual water companies).
43
Stats. 2011, ch. 512, § 1, subd. (a).
11
24-1101
challenges and constraints inherent in the business of producing and transmitting clean
drinking water to consumers.
We are not persuaded that these arguments justify a departure from our
interpretation of section 53091. As explained above, performing the “core function” of
delivering water is not the same as acting in a sovereign capacity. The California
Constitution permits, but does not require, local governments to become water
providers. 44 The Constitution also expressly permits private “persons or corporations” to
own and operate water systems. 45 Given that water service may be provided in California
by either public or private agencies, it is not correct to characterize water delivery as
solely an aspect of sovereignty. While water service may be necessary, in California it is
not a purely governmental function under our constitutional structure.
Despite language in the AB 54 findings and declarations that water systems
“provide a public service that remains one of the core duties of the people’s government,”
we do not understand the Legislature to declare that water systems are an arm of the
government because they deliver an essential service. We believe that the “duty”
referenced here is not a general duty on the part of the state to deliver water to citizens,
but rather a specific statutory duty on the part of anyone who provides water to
consumers to deliver water that is clean.
Commenters also argued that AB 54 subjects privately owned water systems to all
the same operational requirements as public agencies. In light of those burdens, they
argue that privately owned systems should also get symmetrical benefits—including the
benefit of immunity from building and zoning ordinances under Government Code
section 53091. 46 But private system owners are not identically situated to public
agencies; they do, in fact, have the benefit of some rules that public agencies do not, such
as greater flexibility in rate-setting processes, 47 and modified public meeting and public
44
Cal. Const., art. XI, § 9, subd. (a) (“A municipal corporation may establish, purchase,
and operate public works to furnish its inhabitants with . . . water”) (emphasis added); see
Jones v. Catholic Healthcare West (2007) 147 Cal.App.4th 300, 307 (“may” is
permissive); see also Glenbrook Development Co. v. City of Brea (1967) 253 Cal.App.2d
267, 275 (county water district is “municipal corporation” for purposes of Cal. Const.,
art. XI, § 19).
45
Cal. Const., art. XI, § 9, subd. (b).
46
Assem. Floor Analysis, Assem. Bill No. 54 (2011-2012 Reg. Sess.) as amended Aug.
30, 2011, p. 4 (“Opposition may argue this bill seeks to subject mutual water companies
to the same standards and requirements as public agencies, without bestowing any of the
benefits of a public agency”).
47
See Corp. Code, § 14303.
12
24-1101
record requirements, 48 as well as all the rights of ownership of the property itself. Given
these differences in legal treatment, it is not correct to say that privately owned water
agencies bear all the burdens of public agencies without any countervailing benefits.
CONCLUSION
Ultimately, it is the fact of private ownership that separates privately owned water
systems from public agencies for purposes of section 53091. The statute was designed to
strike a balance between state sovereignty and local control with respect to building and
zoning standards. The exemptions from local building and zoning ordinances set forth in
Government Code section 53091 do not apply to privately owned public water systems,
such as those owned by mutual water companies, but apply only to publicly owned water
systems.
48
See Corp. Code, §§ 14305-14307 (Mutual Water Company Open Meeting Act).
13
24-1101
Get today's answer for your situation
You just read a 2026 opinion on this question. Ezel checks the current California statutes and case law and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the law it relies on.