BILL NUMBER: AB 1390 AMENDED
BILL TEXT
AMENDED IN SENATE SEPTEMBER 1, 2015
AMENDED IN SENATE AUGUST 19, 2015
AMENDED IN SENATE AUGUST 18, 2015
AMENDED IN SENATE JULY 6, 2015
AMENDED IN ASSEMBLY MAY 18, 2015
AMENDED IN ASSEMBLY APRIL 30, 2015
AMENDED IN ASSEMBLY MARCH 26, 2015
INTRODUCED BY Assembly Members Alejo, Gomez, and Perea
(Principal coauthors: Assembly Members Bigelow, Gray, Olsen, and
Salas)
(Principal coauthors: Senators Cannella, Hueso, and Vidak)
(Coauthors: Assembly Members Cooley, Cooper, Eggman, Frazier,
Gallagher, Ridley-Thomas, Wilk, and Wood)
(Coauthors: Senators Fuller, Galgiani, and Nielsen)
FEBRUARY 27, 2015
An act to add Chapter 7 (commencing with Section 830) to Title 10
of Part 2 of the Code of Civil Procedure, relating to
groundwater. water.
LEGISLATIVE COUNSEL'S DIGEST
AB 1390, as amended, Alejo. Groundwater:
Water: groundwater: comprehensive adjudication.
The California Constitution requires that the water resources of
the State be put to beneficial use to the fullest extent of which
they are capable. Under the Sustainable Groundwater Management Act,
which applies to all groundwater basins in the state, all basins
designated as high- or medium-priority basins by the Department of
Water Resources as basins that are subject to critical conditions of
overdraft, as specified, are required to be managed under a
groundwater sustainability plan or coordinated groundwater
sustainability plans by January 31, 2020.
This bill would establish special procedures for a comprehensive
adjudication, which is defined as an action filed in superior court
to comprehensively determine the rights to extract groundwater in a
basin. The bill would authorize the court to determine all
groundwater rights of a basin, whether based on appropriation,
overlying right, or other basis of right.
right, and all rights to use storage space in the basin. The
bill would provide that these special procedures governing
comprehensive adjudications do not apply in certain cases that do not
involve a comprehensive allocation of a basin's groundwater supply.
This bill would require a complaint filed in an
adjudication action to name certain defendants, including all general
or special districts managing or replenishing groundwater resources
in the basin in whole or in part, and to be served and published in a
specified manner. the plaintiff in an
adjudication action to provide notice of the comprehensive
adjudication within a specified amount of time after filing the
complaint to certain persons including a city, county, or city and
county that overlies the basin or a portion of the basin. The bill
would also require the plaintiff to publish notice of the complaint,
as specified. The bill would require a draft notice and draft
form answer, as specified, to be lodged by the plaintiff with the
court when filing the complaint. Within 30 days of the assignment of
a judge by the Chairperson of the Judicial Council, the bill would
require the plaintiff to file an ex parte application for approval of
the draft notice and draft form answer. Following a court order
approving the notice and form answer and authorizing service of
landowners, as specified, the bill would require the plaintiff to
identify the assessor parcel numbers and physical addresses of all
real property in the basin and the names and addresses of all holders
of fee title to real property in the basin, as specified; mail the
notice, complaint, and form answer to all holders of fee title to
real property in the basin, as specified; and publish the notice in
one or more newspapers of general circulation, as specified. The bill
would require the plaintiff to file with the court a notice of the
completion of the mailing, and within 60 days of the court
order authorizing service of landowners, to prepare and file for
recording the notice of the comprehensive adjudication in the office
of the county recorder of each county overlying the basin in whole or
in part. mailing. The bill, on the 60th day
following completion of the mailing, as described above, would deem
fulfillment of the service and publication provisions as effective
service of process of the complaint and notice on all interested
parties of the comprehensive adjudication for purposes of
establishing in rem jurisdiction and the comprehensive effect of the
comprehensive adjudication. The
The bill would authorize a groundwater sustainability
agency for the basin or a portion of the basin, a city, county, or
city and county that overlies the basin or a portion of the basin,
and certain persons, and the state
persons to intervene in a comprehensive adjudication.
This bill would authorize the court to convene a case management
conference and would authorize the court to consider certain matters,
including dividing the case into phases to resolve legal and factual
issues, in the initial case management conference or as soon as
practicable. In addition, the bill would require each party to serve
within 6 months of appearing in the comprehensive adjudication,
specified initial disclosures made under penalty of perjury to all
other named parties and a special master, if one has been assigned in
the action. By expanding the scope of an existing crime, the bill
would impose a state-mandated local program. The bill would authorize
the court to appoint one or more special masters in a comprehensive
adjudication, whose duties could include, among other things,
investigating technical and legal issues, as directed by the court,
and compiling a report of the findings, as specified. The bill would
authorize the court to request the State Water Resources Control
Board or the Department of Water Resources to recommend candidates
for appointment as a special master or to review the qualifications
of candidates.
This bill would authorize the court, upon a showing that the basin
is in a condition of long-term overdraft, to issue a preliminary
injunction that could include, among other things, a moratorium on
new or increased appropriations of water. The bill would provide that
a judgment in a comprehensive adjudication is binding on the parties
to the action, their agents and employees, and all their successors
in interest. The bill would also provide the court with continuing
jurisdiction to modify or amend a final judgment in a comprehensive
adjudication in specified instances.
The bill would require public water systems and mutual water
companies to provide a court-approved notice of the comprehensive
adjudication to their customers and would require the Department of
Water Resources and each county and groundwater sustainability agency
that overlies the basin or a portion of the basin to post and
maintain the notice and form answer on their Internet Web sites, as
specified. By requiring public water systems and counties to take
certain actions related to the comprehensive adjudication, the bill
would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
This bill would provide that it will only become effective if SB
226 is enacted and becomes effective.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 7 (commencing with Section 830) is added to
Title 10 of Part 2 of the Code of Civil Procedure, to read:
CHAPTER 7. ACTIONS RELATING TO GROUNDWATER RIGHTS
Article 1. General Provisions
830. (a) This chapter establishes methods and procedures for a
comprehensive adjudication.
(b) This chapter shall be applied and interpreted consistently
with all of the following:
(1) Protecting water rights consistent with Section 2 of Article X
of the California Constitution.
(2) Conducting a comprehensive adjudication in a manner that
promotes efficiency, reduces unnecessary delays, and provides due
process.
(3) Encouraging the compromise and settlement of comprehensive
adjudications.
(4) Conducting a comprehensive adjudication in a manner that is
consistent with the achievement of groundwater sustainability within
the timeframes of the Sustainable Groundwater Management Act.
(5) Establishing procedures by which courts may conduct
comprehensive determinations of all rights and priorities to
groundwater in a basin.
(6) Providing for the conduct of a comprehensive adjudication
consistent with Winters v. United States (1908) 207 U.S. 564, the
McCarran Amendment (codified at 43 U.S.C. Sec. 666), and any other
federal laws regarding the determination of federal or tribal water
rights, as applicable.
(7) Providing notice and due process sufficient to enable a court
in a comprehensive adjudication conducted pursuant to this chapter to
determine and establish the priority for unexercised water rights.
The court may consider applying the principles established in In
re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339.
Except as provided in this paragraph, this chapter shall not alter
groundwater rights or the law concerning groundwater rights.
(c) This chapter shall not alter groundwater rights or
the law concerning groundwater rights. The other provisions
of this code apply to procedures in a comprehensive adjudication to
the extent they do not conflict with the provisions of this chapter.
831. In a comprehensive adjudication of a basin required to have
a groundwater sustainability plan under the Sustainable Groundwater
Management Act, the court shall manage the proceedings in a manner
that minimizes interference with the timely completion and
implementation of a groundwater sustainability plan, avoids
redundancy and unnecessary costs in the development of technical
information and a physical solution, and is consistent with the
attainment of groundwater sustainability within the timeframes
established by the Sustainable Groundwater Management Act.
831. Article 6 (commencing with Section 68630) of Chapter 2 of
Title 8 of the Government Code applies to a comprehensive
adjudication conducted pursuant to this chapter.
832. For purposes of this chapter, the following definitions
apply:
(a) "Basin" means a groundwater basin or subbasin identified
pursuant to Section 841.
(b) "Complaint" means a complaint filed in superior court to
determine rights to extract groundwater and includes any
cross-complaint that initiates a comprehensive adjudication in
response to a plaintiff's complaint or other cross-complaint.
(c) "Comprehensive adjudication" means an action filed in superior
court to comprehensively determine rights to extract groundwater in
a basin.
(d) "Condition of long-term overdraft" means the condition of a
groundwater basin where the average annual amount of water extracted
for a long-term period, generally 10 years or more, exceeds the
long-term average annual supply of water to the basin, plus any
temporary surplus. Overdraft during a period of drought is not
sufficient to establish a condition of long-term overdraft if
extractions and recharge are managed as necessary to ensure that
reductions in groundwater levels or storage during a period of
drought are offset by increases in groundwater levels or storage
during other periods.
(e) "Department" means the Department of Water Resources.
(f) "Groundwater" means water beneath the surface of the earth
within the zone below the water table in which the soil is completely
saturated with water, but does not include water that flows in known
and definite channels.
(g) "Groundwater extraction facility" means a device or method for
extracting groundwater from within a basin.
(h) "Groundwater recharge" means the augmentation of groundwater,
by natural or artificial means.
(i) "Person" includes, but is not limited to, counties, local
agencies, state agencies, federal agencies, tribes, business
entities, and individuals.
(j) "Plaintiff" means the person filing the complaint initiating a
comprehensive adjudication and includes a cross-complainant who
initiates a comprehensive adjudication by cross-complaint.
(k) "Public water system" has the same meaning as defined in
Section 116275 of the Health and Safety Code.
(l) "State small water system" has the same meaning as defined in
Section 116275 of the Health and Safety Code.
(m) "Sustainable Groundwater Management Act" means the provisions
of Part 2.74 (commencing with Section 10720) of Division 6 of the
Water Code.
Article 2. Scope of Action
833. (a) Except as provided in subdivision (b), this chapter
applies to actions that would comprehensively determine rights to
extract groundwater in a basin, whether based on appropriation,
overlying right, or other basis of right.
(b) This chapter does not apply to any of the following:
(1) An action that concerns only allegations that a groundwater
extraction facility, or group of facilities, is interfering with
another groundwater extraction facility or facilities and does not
involve a comprehensive allocation of the basin's groundwater supply.
(2) An action that concerns only claims to extract, or to prevent
interference with extractions of, a specific source of groundwater
recharge and does not involve a comprehensive allocation of the basin'
s groundwater supply.
(3) An action that can be resolved among a limited number of
parties and does not involve a comprehensive determination of rights
to extract groundwater within the basin.
(4) The Antelope Valley Groundwater Cases (Judicial Council
Coordination Proceedings No. 4408).
(c) In implementing this chapter and applying the other provisions
of this code in a comprehensive adjudication, the court should
expedite resolution of the comprehensive adjudication and, where a
groundwater sustainability plan is required pursuant to the
Sustainable Groundwater Management Act, the court should encourage
the parties to cooperatively develop a groundwater sustainability
plan that may serve as the basis of a stipulated judgment setting
forth a physical solution for management of the basin.
(4) An adjudicated area described in subdivisions (a) to (d),
inclusive, of Section 10720.8 of the Water Code, unless a court with
jurisdiction over a proposed expansion of the adjudicated area orders
that the proceeding be conducted in accordance with this chapter.
834. (a) In a comprehensive adjudication conducted pursuant to
this chapter, the court may determine all groundwater rights of a
basin, whether based on appropriation, overlying right, or other
basis of right. right, and all rights to use
storage space in the basin.
(b) The court's final judgment in a comprehensive adjudication,
for the groundwater rights of each party, may declare the priority,
amount, purposes of use, extraction location, right to use
storage space in the basin, and place of use of the water,
together with appropriate injunctive relief, subject to terms adopted
by the court to implement a physical solution in the comprehensive
adjudication.
Article 3. Notice and Service of Complaint
835. (a) Unless a court orders otherwise for good cause, the
complaint in a comprehensive adjudication shall name all of the
following persons as defendants:
(1) All general or special districts managing or replenishing
groundwater resources in the basin in whole or in part.
(2) The operator of a public water system that uses groundwater
from the basin to supply water service.
(3) The operator of a state small water system that uses
groundwater from the basin to supply water service.
(b) The complaint in a comprehensive adjudication shall identify
all counties or cities that provide water service and overlie the
basin in whole or in part.
(c) Within 30 days of the filing of the complaint, both of the
following shall occur:
(1) The plaintiff shall serve the complaint on all persons named
as defendants pursuant to subdivision (a) and all counties or cities
identified in the complaint pursuant to subdivision (b) in the manner
prescribed by Article 3 (commencing with Section 415.10) of Chapter
4 of Title 5.
(2) The plaintiff shall publish notice of the complaint pursuant
to Section 6066 of the Government Code.
835. (a) The plaintiff shall provide notice of the comprehensive
adjudication to all of the following:
(1) A groundwater sustainability agency that overlies the basin or
a portion of the basin.
(2) A city, county, or city and county that overlies the basin or
a portion of the basin.
(3) A district with authority to manage or replenish groundwater
resources of the basin in whole or in part.
(4) The operator of a public water system or state small water
system that uses groundwater from the basin to supply water service.
(5) A California Native American tribe that is on the contact list
maintained by the Native American Heritage Commission.
(6) The Attorney General, the State Water Resources Control Board,
the department, and the Department of Fish and Wildlife.
(7) A federal department or agency that manages a federal
reservation that overlies the basin or a portion of the basin.
(8) A person identified under Section 836.5 who is not a party to
the comprehensive adjudication.
(9) A person who is on a list, maintained by a groundwater
management agency, of interested parties that have requested notice
under the Sustainable Groundwater Management Act.
(b) The plaintiff may provide notice under this section by first
class mail or electronic mail.
(c) (1) Except as provided in paragraph (2), the plaintiff shall
provide notice under this section as follows:
(A) To any person entitled to notice under paragraphs (1) to (7),
inclusive, of subdivision (a) within 15 days of the filing of the
complaint.
(B) To any person entitled to notice under paragraphs (8) and (9)
of subdivision (a) within 30 days of receipt of the name and address
of the person entitled to notice.
(2) The plaintiff may take additional time as is reasonably
necessary before providing notice under this section if the plaintiff
determines that additional time is necessary to identify a person
entitled to notice under this section, confirm the accuracy of the
names or addresses of a person, or to determine if the conditions
requiring notice have been satisfied.
(d) The plaintiff is not required to provide notice under this
section to a person who has already been served or intervened in the
action.
(e) The plaintiff shall publish notice of the complaint pursuant
to Section 6066 of the Government Code.
836. (a) When the plaintiff files the complaint, the plaintiff
shall also lodge with the court both of the following:
(1) (A) A draft notice titled "NOTICE OF COMMENCEMENT OF
GROUNDWATER BASIN ADJUDICATION" in no less than 20-point font and the
following text printed immediately below the draft notice title in
no less than 14-point font:
"THIS NOTICE IS IMPORTANT. ANY RIGHTS YOU CLAIM TO PUMP OR STORE
GROUNDWATER FROM THE BASIN IDENTIFIED IN THIS NOTICE MAY BE AFFECTED
BY A LAWSUIT INITIATED BY THE COMPLAINT SUMMARIZED BELOW.
A copy of the complaint may be obtained by contacting the
plaintiff or the plaintiff's attorney identified in this notice. If
you claim rights to pump or store groundwater within the basin,
either now or in the future, you may become a party to this lawsuit
by filing an answer to the lawsuit on or before the deadline
specified in this notice. You may file an answer by completing the
attached form answer, filing it with the court indicated in this
notice, and sending a copy of the form answer to the plaintiff or the
plaintiff's attorney.
Failing to participate in this lawsuit could have a significant
adverse effect on any right to pump or store groundwater that you may
have. You may seek the advice of an attorney in relation to this
lawsuit. Such attorney should be consulted promptly. A case
management conference in this groundwater basin adjudication
proceeding shall occur on the date specified in this notice. If you
intend to participate in the groundwater adjudication proceeding to
which this notice applies, you are advised to attend the initial case
management conference in person or have an attorney represent you at
the initial case management conference.
Participation requires the production of all information regarding
your groundwater use. You must provide this information by the date
identified in this notice.
A form answer is provided for your convenience. You may fill out
the form answer and file it with the court. Should you choose to file
the form answer, it will serve as an answer to all complaints and
cross-complaints filed in this case."
(B) The following information shall be provided immediately
following the text described in subparagraph (A):
(i) The name of the basin that is the subject of the comprehensive
adjudication and a link to the Internet Web site address where the
department has posted a map of the basin.
(ii) A space to be completed with the case number assigned to the
comprehensive adjudication, and the name and address of the court and
department to which the action is assigned.
(iii) The name, address, telephone number, and email address of
the plaintiff, or plaintiff's attorney, from which
whom the complaint may be obtained and to whom a copy of
the form answer should be sent.
(iv) A summary of the causes of action alleged in the complaint
and the relief sought. The summary shall not exceed 25 lines.
(v) A date by which persons receiving the notice must appear in
the comprehensive adjudication.
(2) (A) A draft form answer titled "ANSWER TO ADJUDICATION
COMPLAINT" in no less than 20-point font and the following text
printed immediately below the draft form answer title in no less than
14-point font:
"The undersigned denies all material allegations in the complaint
or cross-complaint in this action that seeks to adjudicate rights in
the groundwater basin and asserts all applicable affirmative defenses
to that complaint."
(B) Notwithstanding any other law, the filing of an answer in the
form described in subparagraph (A) in a comprehensive adjudication is
sufficient to put at issue all material allegations and applicable
affirmative defenses to the complaint in the comprehensive
adjudication. If a party intends to seek adjustment of the basin's
boundaries, it shall disclose that intention in the form answer
described in subparagraph (A).
(b) Within 30 days of the assignment of a judge by the Chairperson
of the Judicial Council, the plaintiff shall file an ex parte
application for approval of the draft notice and draft form answer
filed pursuant to subdivision (a). The plaintiff shall provide notice
of the ex parte application to all parties in accordance with the
California Rules of Court regarding ex parte hearings. Notice may be
provided electronically. The plaintiff's notice of the ex parte
application shall include a copy of the draft notice and draft form
answer filed pursuant to subdivision (a).
(c) Once the court approves the draft notice, service of that
notice in accordance with this section shall substitute for the
summons otherwise provided for in civil actions pursuant to Section
412.20.
(d) (1) Following a court order approving the notice and form
answer and authorizing service of landowners pursuant to this
section, the plaintiff shall do all of the following:
(A) Identify the assessor parcel numbers and physical addresses of
all real property in the basin and the names and addresses of all
holders of fee title to real property in the basin using the records
of the assessor or assessors of the county or counties in which the
basin to be adjudicated lies. The plaintiff shall provide the court
and all parties with notice of its acquisition of, or sufficient
access to, this information.
(B) Mail, by registered mail or certified mail, return receipt
requested, the notice, complaint, and form answer to all holders of
fee title to real property in the basin. If the physical address of
the real property differs from the address of the holder of fee
title, the notice, complaint, and form answer shall be mailed by
registered or certified mail, return receipt requested, to the
physical address of the real property and the address of the holder
of fee title.
(C) If return receipt is not received for a parcel of real
property, the plaintiff shall post a copy of the notice, complaint,
and form answer in a conspicuous place on the real property.
(D) Within 20 days of the court order, publish the notice at least
once per week for four consecutive weeks in one or more newspapers
of general circulation in each county overlying the basin in whole or
in part.
(2) Service pursuant to this subdivision is not required if the
real property is owned by a person in a class of water
users that are otherwise noticed in accordance with this chapter.
If the owner is part of a class of water users proposed for
certification, service is not required until the court acts on the
proposal for certification.
(e) After completing the mailing pursuant to subdivision (d), the
plaintiff shall file with the court a notice of the completion of the
mailing.
(f) Within 60 days of the court order authorizing service of
landowners pursuant to this section, the plaintiff shall prepare and
file for recording the notice of the comprehensive adjudication in
the office of the county recorder of each county overlying the basin
in whole or in part. The notice shall be recorded in a manner so that
anyone researching the title of a parcel will find the notice.
(f) A property owner who has received notice of the comprehensive
adjudication and transfers property during the pendency of the
comprehensive adjudication shall disclose, on the Real Estate
Transfer Disclosure Statement, that the property is subject to a
comprehensive adjudication and shall attach the court-approved notice
to the Real Estate Transfer Disclosure Statement.
(g) Following a court order authorizing service of landowners
pursuant to this section, the plaintiff shall serve any known person
that pumps groundwater who would not otherwise be served pursuant to
subdivision (d) of this section or noticed pursuant to paragraph (1)
of subdivision (c) of Section 835. Service pursuant to this
subdivision may shall be by personal
delivery or by mail in the manner prescribed by Article 3 (commencing
with Section 415.10) of Chapter 4 of Title 5.
(h) Service on the United States shall be made in accordance with
Section 666 of Title 43 of the United States Code.
(i) For a person whose property is connected to and receives water
from a public water system or mutual water company, and does not
have a well, both of the following shall apply:
(1) The person is not a necessary party to a comprehensive
adjudication and is not required to be served.
(2) The person shall be provided, by his or her water supplier,
court-approved notice of the comprehensive adjudication that includes
notice that the person's rights may be impacted. The court shall
determine the appropriate method for delivering the notice.
(i)
(j) The court may authorize any other procedures it
finds appropriate and necessary to provide notice to persons who may
hold groundwater rights in the basin.
(j)
(k) On the 60th day following completion of the
mailing, as set forth in this section, and notwithstanding any other
law, the fulfillment of the service provisions of this section, the
publication provisions of paragraph (2) of subdivision (c)
subdivision (e) of Section 835, and the
remaining service and notice provisions of this chapter shall be
deemed effective service of process of the complaint and notice on
all interested parties of the comprehensive adjudication for purposes
of establishing in rem jurisdiction and the comprehensive effect of
the comprehensive adjudication.
(k)
(l) The court may require notice to be made available
in languages other than English.
(l) The plaintiff shall provide the notice, complaint, and form
answer to the department. The department shall post the notice,
complaint, and form answer on the department's Internet Web site
within 15 days of receipt.
(m) Section 389 shall not apply to a failure to join the United
States or an Indian tribe to a comprehensive adjudication.
(m) Within 15 days of the court order approving the notice and
form answer, the plaintiff shall provide the notice and form answer
to the department and each county and groundwater sustainability
agency that overlies the basin or a portion of the basin. The
department, and each county and groundwater sustainability agency
that overlies the basin or a portion of the basin and has an Internet
Web site shall do all of the following:
(1) Within 15 days of receiving the notice and form answer, post
those documents on its Internet Web site.
(2) Provide a link to the notice and form answer on the home page
of its Internet Web site.
(3) Maintain the posting and link described in paragraphs (1) and
(2) for the entire time the comprehensive adjudication is pending.
The plaintiff shall notify the department and each county and
groundwater sustainability agency when the comprehensive adjudication
is no longer pending.
836.5. (a) Within 15 days of the court order approving the notice
and form answer under Section 836, the plaintiff shall request from
the following entities the names and addresses of persons reporting
extractions within the basin under the Sustainable Groundwater
Management Act, or Part 5 (commencing with Section 4999) or Part 5.2
(commencing with Section 5200) of Division 2 of the Water Code:
(1) The State Water Resources Control Board.
(2) A local agency designated under Section 5009 of the Water Code
as the local agency for a board-designated local area that includes
the basin or a portion of the basin.
(3) A groundwater sustainability agency for the basin or a portion
of the basin.
(b) The entities described in paragraphs (1) to (3), inclusive, of
subdivision (a) shall provide the plaintiff with the names, mailing
addresses, and email addresses, if available, within 45 days of the
plaintiff's request. The State Water Resources Control Board shall
also provide the mailing address and email addresses, if available,
of any person known to the board who holds a permit or license
authorizing underground storage in the basin or who claims a right to
divert water for underground storage in the basin.
(c) Upon request, the plaintiff shall reimburse the reasonable
costs incurred under this section by an entity described in
paragraphs (1) to (3), inclusive, of subdivision (a).
(d) An entity shall not be held civilly liable for complying with
this section.
Article 4. Intervention
837. (a) A groundwater sustainability agency for the basin or a
portion of the basin may intervene in a comprehensive adjudication
conducted pursuant to this chapter.
(b) A city, county, or city and county that overlies the basin or
a portion of the basin may intervene in a comprehensive adjudication
conducted pursuant to this chapter.
(c) The court shall allow any person to intervene in a
comprehensive adjudication conducted pursuant to this chapter upon an
ex parte application that demonstrates that the person holds fee
simple ownership in a parcel in the basin, or extracts or stores
water in the basin. A person filing an ex parte application pursuant
to this subdivision shall give notice to the plaintiff consistent
with the California Rules of Court.
(d) Upon timely motion, the court shall permit the state to
intervene in a comprehensive adjudication conducted pursuant to this
chapter if the state claims an interest relating to the comprehensive
adjudication and the state is so situated that disposing of the
comprehensive adjudication may, as a practical matter, impair or
impede the state's ability to protect its interest.
(d) A person may apply to intervene in a comprehensive
adjudication conducted pursuant to this chapter pursuant to Section
387.
Article 5. Judge
838. (a) In a comprehensive adjudication conducted pursuant to
this chapter, a judge of a superior court of a county that overlies
the basin or any portion of the basin shall
be disqualified. The Chairperson of the Judicial
Council shall assign a judge to preside in all proceedings in the
comprehensive adjudication.
(b) A comprehensive adjudication is presumed to be a complex
action within the meaning of Rule 3.400 of the California Rules of
Court unless a party demonstrates that the comprehensive adjudication
is not complex.
(c) Sections 170.6 and 394 shall not apply in a comprehensive
adjudication.
(d) Notwithstanding subdivision (b) of Section 10726.2
10726.6 of the Water Code, an action against a
groundwater sustainability agency that is located in a basin that is
being adjudicated pursuant to this chapter shall be subject to
transfer, coordination, and consolidation with the comprehensive
adjudication, as appropriate, if the action concerns the adoption,
substance, or implementation of a groundwater sustainability plan, or
the groundwater sustainability agency's compliance with the
timelines in the Sustainable Groundwater Management Act.
(e) The judge assigned by the Chairperson of the Judicial Council
pursuant to subdivision (a) shall determine if transfer,
coordination, or consolidation is appropriate.
Article 6. Electronic Service
839. Service of pleadings and papers in a comprehensive
adjudication, other than the complaint initiating a comprehensive
adjudication, shall occur electronically to the greatest extent
possible. The court may provide, or authorize the use of, an
electronic service system. If an electronic service system is not
provided or authorized by the court, the court and the parties shall
serve documents by email or other equivalent electronic means to the
greatest extent possible. To enable electronic service of pleadings
and papers, the attorneys of record or parties representing
themselves shall include an email address for service in the captions
of all pleadings they file in the comprehensive adjudication.
Article 7. Case Management
840. (a) In managing a comprehensive adjudication, the court
shall convene a case management conference as provided by the
California Rules of Court.
(b) In an initial case management conference, or as soon as
practicable, the court may consider the following in addition to
other matters:
(1) Determining whether to seek adjustment of the basin boundaries
pursuant to Section 841.
(2) Staying the action pursuant to Section 848.
(3) Appointing a special master pursuant to Section 845.
(4) Scheduling a hearing on a preliminary injunction pursuant to
Section 847.
(5) Dividing the case into phases to resolve legal and factual
issues.
(6) Issuing orders to ensure that issues resolved in one phase are
not relitigated in another phase.
(7) Limiting discovery to correspond to the phases.
(8) Scheduling early resolution of claims to prescriptive rights.
(9) Forming a class or classes of overlying groundwater rights
holders pursuant to the criteria specified in Section 382.
Article 8. Basin Boundaries
841. (a) (1) Except as otherwise provided in this section, the
boundaries of the area subject to a comprehensive adjudication shall
be consistent with the boundaries of a basin.
(2) If the department revises the boundaries of a basin pursuant
to Section 10722.2, or subdivision (b) of Section 12924, of the Water
Code after a comprehensive adjudication has been initiated, the
court may revise the boundaries of the area subject to the
comprehensive adjudication as the interests of justice and the
objectives of this chapter require.
(3) Upon a showing that a revision of the basin boundaries would
further a fair and effective determination of water rights, the court
may direct any of the following to submit a request to the
department pursuant to Section 10722.2 of the Water Code to revise
the basin boundaries:
(A) A party to the comprehensive adjudication.
(B) The State Water Resources Control Board, if the court has made
a reference pursuant to Part 3 (commencing with Section 2000) of
Division 2 of the Water Code.
(C) A special master, if one has been appointed.
(4) The court shall consider the department's response to a
request submitted pursuant to paragraph (3) and establish the area
subject to a comprehensive adjudication as the interests of justice
and the objective of this chapter require. The department shall
revise the basin boundaries to conform to the comprehensive
adjudication.
(b) If the court finds that including an interconnected surface
water body or subterranean stream flowing through known and definite
channels is necessary for the fair and effective determination of the
groundwater rights in a basin, the court may require the joinder of
persons who claim rights to divert and use water from that surface
water body or subterranean stream in a comprehensive adjudication
conducted pursuant to this chapter.
(c) If the court finds that claims of right to extract or divert
only minor quantities of water, not to exceed five acre-feet of water
per year, would not have a material effect on the groundwater rights
of other parties, the court may exempt those claimants with respect
to those claims for only minor quantities of water, but a person who
is exempted may elect to continue as a party to the comprehensive
adjudication.
Article 9. Initial Disclosures
842. (a) Except as otherwise stipulated by the parties or ordered
by the court, within six months of appearing in a comprehensive
adjudication, a party shall serve on the other parties and the
special master, if one is appointed, an initial disclosure that
includes all of the following information:
(1) The name, address, telephone number, and email address of the
party and, if applicable, the party's attorney.
(2) The quantity of any groundwater extracted from the basin by
the party and the method of measurement used by the party or the
party's predecessor in interest for each of the previous five years
preceding the filing of the complaint.
(3) The type of water right or rights claimed by the party for the
extraction of groundwater.
(4) A general description of the purpose to which the groundwater
has been put.
(5) The location of each well or other source through which
groundwater has been extracted.
(6) The area in which the groundwater has been used.
(7) Any claims for increased or future use of groundwater.
(8) The quantity of any beneficial use of any alternative water
use that the party claims as its use of groundwater under any
applicable law, including, but not limited to, Section 1005.1,
1005.2, or 1005.4 of the Water Code.
(9) Identification of all surface water rights and contracts that
the party claims provides the basis for its water right claims in the
comprehensive adjudication.
(10) The quantity of any replenishment of water to the basin that
augmented the basin's native water supply, resulting from the
intentional storage of imported or non-native water in the basin,
managed recharge of surface water, or return flows resulting from the
use of imported water or non-native water on lands overlying the
basin by the party, or the party's representative or agent, during
each of the 10 calendar years immediately preceding the filing of the
complaint.
(11) The names, addresses, telephone numbers, and email addresses
of all persons possessing information that supports the party's
disclosures.
(12) Any other facts that tend to prove the party's claimed water
right.
(b) The Judicial Council may develop a form for initial
disclosures made pursuant to subdivision (a) to facilitate the
consistent, independent, impartial, and accessible administration of
comprehensive adjudications. The Judicial Council may coordinate with
the department in developing the form.
(c) A party shall make its initial disclosures based on the
information then reasonably available to it. A party is not excused
from making its initial disclosures because it has not fully
investigated the case, because it challenges the sufficiency of
another party's disclosures, or because another party has not made
its disclosures.
(d) A party that has made its initial disclosures, as described in
subdivision (a), or that has responded to another party's discovery
request, shall supplement or correct a disclosure or response in all
of the following situations:
(1) In a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect and the
additional or corrective information has not otherwise been made
known to the other parties during the disclosure or discovery
process.
(2) If the party extracts groundwater from the basin after the
complaint is filed. A supplement filed pursuant to this paragraph
shall report the quantity of water extracted and be filed within 90
days after the end of the calendar year.
(3) As ordered by the court.
(e) To the greatest extent possible, a party shall serve his or
her initial disclosures electronically. If it is not possible for the
party to serve his or her disclosures electronically, he or she
shall serve the disclosures in an electronic format saved on a
portable storage media device such as a compact disc or flash drive.
(f) A party's obligations under this section may be enforced by a
court on its own motion or the motion of a party to compel
disclosure.
(g) A party's disclosures under this section shall be verified
under penalty of perjury as being true and correct to the best of the
party's knowledge.
Article 10. Expert Witnesses
843. (a) In addition to all other disclosures required by this
chapter, a party shall disclose to the other parties the identity of
any expert witness it may use at trial to present evidence. For
purposes of this chapter, "expert witness" means a witness qualified
pursuant to Section 720 of the Evidence Code.
(b) Unless otherwise stipulated by the parties or ordered by the
court, the disclosure made pursuant to subdivision (a) shall be
accompanied by a written report prepared and signed by the expert
witness if the witness is retained or specially employed by the party
offering the expert witness to testify as an expert in the action,
or if the expert witness's duties as the party's employee regularly
involves giving expert testimony. The report shall include all of the
following:
(1) A complete statement of all opinions the witness will express
and the basis and reasons for those opinions.
(2) The facts or data considered by the witness in forming his or
her opinions.
(3) Any exhibits the witness will use to summarize or support his
or her opinions.
(4) The witness's qualifications, including a list of all
publications authored by the witness in the previous 10 years.
(5) A list of all other cases in which the witness testified as an
expert at trial or by deposition in the last five years.
(6) A statement of the compensation to be paid for the witness's
work and testimony in the comprehensive adjudication.
(c) If subdivision (b) does not apply to an expert witness because
of a stipulation by the parties or an order of the court, the
witness's disclosure shall include both of the following:
(1) The subject matter on which the witness is expected to present
evidence.
(2) A summary of the witness's opinions, and the facts or data
considered by the witness in forming his or her opinions.
(d) Unless otherwise stipulated by the parties, a party shall make
the disclosures of any expert witness it intends to present at
trial, except for an expert witness presented solely for purposes of
impeachment or rebuttal, at the times and in the sequence ordered by
the court. If there is no stipulation or court order, the disclosures
of an expert witness shall be made as follows:
(1) At least 30 days after the court's entry of an order
establishing the scope of the relevant phase of the comprehensive
adjudication.
(2) Except for a supplemental expert witness described in
paragraph (3), at least 60 days before the date set for trial of the
relevant phase of the comprehensive adjudication.
(3) For a supplemental expert witness who will express an opinion
on a subject to be covered by another expert witness designated by an
adverse party that was not among the subjects covered by an expert
witness initially disclosed by the party offering the supplemental
expert witness, no more than 20 days after the initial expert witness
disclosure date.
(e) The court may modify the disclosure requirements of
subdivisions (b) to (d), inclusive, for expert witnesses presented
solely for purposes of impeachment or rebuttal. In modifying the
disclosure requirements, the court shall adopt disclosure
requirements that expedite the court's consideration of the issues
presented and shall ensure that expert testimony presented solely for
purposes of impeachment or rebuttal is strictly limited to the scope
of the testimony that it intends to impeach or rebut.
(f) (1) A party whose expert witness has made a disclosure
pursuant to this section shall promptly supplement or correct the
expert witness's disclosure in either of the following instances:
(A) In a timely manner if the party learns that in some material
respect the disclosure is incomplete or incorrect, if the additional
or corrective information has not otherwise been made known to the
other parties during the disclosure or discovery process.
(B) As ordered by the court.
(2) A party's duty to supplement or correct its expert witness's
disclosure includes the information included in the report and the
information given during the expert witness's deposition. Unless
otherwise stipulated by the parties or ordered by the court, any
supplementation or correction shall occur at least 14 days before
trial of the applicable phase of the comprehensive adjudication.
(3) The court may authorize a supplemental deposition of an expert
witness based on a supplemental disclosure made pursuant to this
subdivision. The court shall appropriately condition the
authorization of a supplemental deposition of an expert witness to
ensure the expeditious completion of the applicable phase of the
comprehensive adjudication. The court may require the party whose
expert makes the supplemental disclosure to pay some or all of the
costs associated with the supplemental deposition.
(g) To the greatest extent possible, the parties shall serve
expert witness disclosures electronically through an electronic
service system, an electronic document repository, email, or another
method of electronic transmission. If it is not possible for the
party to serve his or her expert witness disclosures electronically,
he or she shall serve the expert witness disclosures in an electronic
format saved on a portable storage media device such as a compact
disc or flash drive.
Article 11. Written Testimony
844. (a) A court may require the parties in a comprehensive
adjudication to submit written testimony of relevant witnesses in the
forms of affidavits or declarations under penalty of perjury in lieu
of presenting live testimony. The required written testimony may
include, but is not limited to, expert witness opinions and testimony
that authenticates documentary evidence. The court may order that
the written testimony constitutes the entirety of the witness's
direct testimony, require the written testimony to include any
exhibits offered in support of the written testimony, and, in the
case of written testimony of an expert witness, require a statement
of the witness's qualifications.
(b) If the court requires the submission of written testimony
pursuant to subdivision (a), a complete copy of the direct testimony
shall be served at least 21 days before trial. A complete copy of any
rebuttal testimony shall be served no later than the first day of
trial.
(c) If the contents of the written testimony would have been
admissible if the witness testified orally, the written testimony
shall be received by the court as a documentary exhibit if the
witness whose written testimony is being offered is made available
for cross-examination by all parties.
Article 12. Special Master
845. (a) The court may appoint one or more special masters whose
duties may include the following:
(1) Investigating technical and legal issues, as directed by the
court. The special master shall compile a report of findings in
accordance with Section 846.
(2) Conducting joint factfinding with the parties, their
designees, or both.
(3) Investigating the need for, and developing a proposal for, a
preliminary injunction pursuant to Article 13 (commencing with
Section 847).
(4) Performing other tasks the court may deem appropriate.
(b) The court shall fix the special master's compensation on the
basis and terms stated in the appointing order, and the court may set
a new basis and new terms after giving the parties notice and an
opportunity to be heard. The court shall allocate payment of the
special master's compensation among the parties in an amount and a
manner that the court deems equitable. The court may waive a party's
obligations to pay the special master's compensation upon a showing
of good cause.
(c) The court may request the State Water Resources Control Board
or the department to recommend candidates for appointment as a
special master or to review the qualifications of candidates.
(d) This section does not limit the authority of the court to make
a reference pursuant to Chapter 1 (commencing with Section 2000) of
Part 3 of Division 2 of the Water Code.
(e) This section does not limit the authority to appoint a
watermaster pursuant to Chapter 3 (commencing with Section 4050) of
Part 4 of Division 2 of the Water Code or any other law.
846. (a) The special master shall make a draft report available
to the parties and provide at least 60 days for the parties to submit
written objections to the draft report.
(b) An objection to the draft report shall identify the specific
grounds and evidence on which the objection is based.
(c) The special master may notice and hold hearings, as he or she
deems appropriate, to gather information or address issues raised in
the objections to the draft report.
(d) The special master shall consider the objections to the draft
report and develop a final report that shall be filed with the court,
together with supporting evidence.
Article 13. Preliminary Injunction
847. (a) Upon a showing that the basin is in a condition of
long-term overdraft, the court may, upon notice and hearing, issue a
preliminary injunction.
(b) Bulletins and other reports of the department, or
a report of a special master indicating that a condition of
long-term overdraft exists in the basin, and any other evidence
the court finds relevant shall be admissible and shall
constitute prima facie evidence of a condition of long-term
overdraft.
(c) The preliminary injunction may include any of the following
terms:
(1) A moratorium on new or increased appropriations of water.
(2) A limitation on, or reduction in, the diversion or extraction
of water.
(3) An allocation among the parties establishing amounts of
extraction allowed during the pendency of the comprehensive
adjudication.
(4) Procedures for voluntary transfers.
(d) The court shall issue a preliminary injunction upon
determining all of the following:
(1) The basin is in a condition of long-term overdraft.
(2) The basin has been designated as a probationary basin or the
planning deadlines in subdivision (a) of Section 10720.7 of the Water
Code are not being complied with.
(3) There is no interim plan in effect under Section 10735.8 of
the Water Code.
(e) The court may provide a schedule for further reductions in
extractions over a period of years if it finds that doing so appears
reasonably necessary to achieve groundwater sustainability within the
timelines provided in subdivision (b) of Section 10727.2 of the
Water Code.
(f) The terms of a preliminary injunction shall not determine the
rights in a final judgment of the comprehensive adjudication.
(g) A bond or undertaking shall not be required for the issuance
of a preliminary injunction pursuant to this section.
(h) The court may appoint a watermaster to oversee enforcement of
the preliminary injunction.
Article 14. Stay
848. (a) Upon the motion of any party to a comprehensive
adjudication, a court may stay a comprehensive adjudication for a
period of up to one year, subject to renewal in the court's
discretion upon a showing of good cause, in order to facilitate any
of the following:
(1) Adoption of a groundwater sustainability plan that provides
for a physical solution or otherwise addresses issues in the
comprehensive adjudication.
(2) The development of technical studies that may be useful to the
parties in the comprehensive adjudication.
(3) Voluntary mediation or participation in a settlement
conference on all, or a portion of, the subject matters or legal
questions identified in the comprehensive adjudication.
(4) Compromise and settlement of the comprehensive adjudication or
issues in the comprehensive adjudication.
(b) If a party opposes an extension of a stay, a stay may only be
granted after a showing that there is good progress being made on the
issues that were identified as the reasons for the stay and that no
rights or interest would be impaired by the stay.
(c) A stay pursuant to this section shall not stay, or otherwise
delay, the parties' obligations to provide initial disclosures
pursuant to Section 842 unless the court determines the initial
disclosures will not benefit resolution of the comprehensive
adjudication.
Article 15. Physical Solution
849. (a) The court shall have the authority and the duty to
impose a physical solution on the parties in a comprehensive
adjudication where necessary and consistent with Article 2 of Section
X of the California Constitution.
(b) Before adopting a physical solution presented by a party, or
considered on the court's own motion, the court shall consider
whether the elements of any existing groundwater sustainability plan
should be incorporated into the court's physical solution.
Article 16. Stipulated Judgment
850. (a) If a party or group of parties submits a
proposed stipulated judgment, the court may adopt the stipulated
The court may enter a judgment if the court
finds that it the judgment meets all of
the following criteria:
(1) It furthers the interests of the state in ensuring that the
water resources of the state are put to beneficial use to the fullest
extent that they are capable, as required by Section 2 of Article X
of the California Constitution.
(2) It is consistent with all the
water right priorities of all non-stipulating parties in
the basin.
(3) It treats all objecting parties and any persons who have
claims that are exempted pursuant to Section 841 equitably as
compared to the stipulating parties.
(b) If a party or group of parties submits a proposed stipulated
judgment that is supported by more than 50 percent of all groundwater
extractors in the basin and groundwater extractors responsible for
at least 75 percent of the groundwater extracted in the basin during
the five calendar years before the filing of the complaint, the court
may adopt the proposed stipulated judgment, as applied to the
stipulating parties, if the proposed stipulated judgment meets the
criteria described in subdivision (a). A party objecting to a
proposed stipulated judgment shall demonstrate, by a preponderance of
evidence, that the proposed stipulated judgment does not satisfy one
or more criteria described in subdivision (a) or that it
substantially violates the water rights of the objecting party. If
the objecting party is unable to make this showing, the court may
impose the proposed stipulated judgment on the objecting party. An
objecting party may be subject to a preliminary injunction issued
pursuant to Section 847 while his or her objections are being
resolved.
(c) A party may object to a stipulated judgment proposed pursuant
to this section on the basis that it does not satisfy the criteria
described in subdivision (a). The stipulated judgment may be
in effect while any objections are being resolved.
Article 17. Judgment Binding on Successors
851. The judgment in a comprehensive adjudication conducted
pursuant to this chapter shall be binding on the parties to the
action and all their successors in interest, including, but not
limited to, heirs, executors, administrators, assigns, lessees,
licensees, the agents and employees of the parties to the action and
all their successors in interest, and all landowners or other persons
claiming rights to extract groundwater from the basin.
Article 18. Continuing Jurisdiction
852. (a) The court shall
have continuing jurisdiction to modify or amend a final judgment in a
comprehensive adjudication in response to new information, changed
circumstances, the interests of justice, or to ensure that the
criteria of subdivision (a) of Section 850 are met. When feasible,
the judge who heard the original action shall preside over actions or
motions to modify or amend the judgment.
(b) If the court has approved a stipulated judgment pursuant to
subdivision (b) of Section 850, the department shall submit to the
court the assessments and any recommended corrective actions the
department issues pursuant to Section 10733.8 of the Water Code. The
court, after notice and hearing, shall determine whether to amend the
judgment or adopt the department's recommended corrective actions.
853. (a) Before the court issues a final judgment in the
comprehensive adjudication, a party may file a motion for an order
determining that the judgment is consistent with groundwater
sustainability, as established by the Sustainable Groundwater
Management Act.
(b) For any basin required to develop a groundwater sustainability
plan under the Sustainable Groundwater Management Act, the
department shall provide a report to the court evaluating if the
judgment is consistent with groundwater sustainability, as
established by the Sustainable Groundwater Management Act.
(c) If the court determines that the judgment will achieve
groundwater sustainability for the basin, as established by the
Sustainable Groundwater Management Act, the judgment shall be
considered an alternative
to a groundwater sustainability plan and shall be deemed to satisfy
the objectives of the Sustainable Groundwater Management Act.
(d) The court shall have sole jurisdiction to determine if the
judgment complies with the Sustainable Groundwater Management Act.
(e) The court may consider a motion made pursuant to subdivision
(a) for a proposed judgment before the court enters the judgment.
(f) For purposes of this section, "judgment" means a judgment,
settlement, or other final order concluding proceedings in the
comprehensive adjudication in the superior court.
(g) Nothing in this section is intended to undermine the goals and
outcomes of the Sustainable Groundwater Management Act to the extent
water rights, as determined by the court, are not impaired.
854. The court may appoint a groundwater sustainability agency to
serve as the watermaster in any judgment entered in a comprehensive
adjudication.
SEC. 2. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution for certain costs that may be incurred by a local agency
or school district because, in that regard, this act creates a new
crime or infraction, eliminates a crime or infraction, or changes the
penalty for a crime or infraction, within the meaning of Section
17556 of the Government Code, or changes the definition of a crime
within the meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.
SEC. 3. This act shall only become effective if
Senate Bill 226 of the 2014- 15 Regular Session is enacted
and becomes effective.