Amended in Senate September 4, 2015

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

California Legislature—2015–16 Regular Session

Assembly Bill No. 1390

Introduced by Assembly Members Alejo, Gomez, and Perea

(Principal coauthors: Assembly Members begin delete Bigelow, end delete Gray, Olsen, and Salas)

(Principal coauthors: Senators Cannella, Hueso, begin insert Pavley, end insert and Vidak)

(Coauthors: Assembly Members Cooley, Cooper, Eggman, Frazier, begin delete Gallagher, end delete begin insert Levine, Mathis, end insert Ridley-Thomas, Wilk, and Wood)

(Coauthors: Senators begin delete Fuller, Galgiani, and Nielsen) end delete begin insert Fuller and Galgiani) end insert

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 begin delete water. end delete begin insert groundwater. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 1390, as amended, Alejo. begin delete Water: groundwater: end delete begin insert Groundwater: end insert 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 begin delete the end delete 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, and begin delete all rights to end delete use begin insert of end insert 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. begin insert The bill would authorize a judge of the superior court to determine if the action is a comprehensive adjudication, as specified. end insert

This bill would require 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. begin delete The bill would also require the plaintiff to publish notice of the complaint, as specified. end delete 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 begin delete an ex parte application end delete begin insert a motion end insert 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. The begin delete bill, on the 60th day following completion of the mailing, as described above, end delete begin insert bill end insert 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.

begin delete The end delete begin insert This end insert 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 to intervene in a comprehensive adjudication.

This bill would begin delete authorize end delete begin insert require end insert 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 begin delete assigned end delete begin insert appointed end insert 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.

begin delete The end delete begin insert This end insert bill would require begin delete public water systems and mutual water companies to provide a court-approved notice of the comprehensive adjudication to their customers and would require end delete 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 begin delete public water systems and end delete 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 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) 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.  

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” begin delete means a groundwater basin or subbasin identified
pursuant to Section 841. end delete begin insert has the same meaning as defined in
Section 10721 of the Water Code. end insert

(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.

begin insert

(f) “Expert witness” means a witness qualified pursuant to
Section 720 of the Evidence Code.

end insert begin delete

(f)

end delete

begin insert (g) end insert  “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.

begin delete

(g)

end delete

begin insert (h) end insert  “Groundwater extraction facility” means a device or method
for extracting groundwater from within a basin.

begin delete

(h)

end delete

begin insert (i) end insert  “Groundwater recharge” means the augmentation of
groundwater, by natural or artificial means.

begin delete

(i)

end delete

begin insert (j) end insert  “Person” includes, but is not limited to, counties, local
agencies, state agencies, federal agencies, tribes, business entities,
and individuals.

begin delete

(j)

end delete

begin insert (k) end insert  “Plaintiff” means the person filing the complaint initiating
a comprehensive adjudication and includes a cross-complainant
who initiates a comprehensive adjudication by cross-complaint.

begin delete

(k)

end delete

begin insert (l) end insert  “Public water system” has the same meaning as defined in
Section 116275 of the Health and Safety Code.

begin delete

(l)

end delete

begin insert (m) end insert  “State small water system” has the same meaning as defined
in Section 116275 of the Health and Safety Code.

begin delete

(m)

end delete

begin insert (n) end insert  “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) 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.

begin insert

(c) 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.

end insert begin insert

(d) 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.

end insert

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, and begin delete all rights to end delete use begin insert of end insert 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, begin delete right to use storage
space in the basin, and end delete place of use of the water, begin insert and use of storage
space in the basin, end insert 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) 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.

begin delete

(e) The plaintiff shall publish notice of the complaint pursuant
to Section 6066 of the Government Code.

end delete

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 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 begin delete an ex
parte application end delete begin insert a motion end insert for approval of the draft notice and draft
form answer filed pursuant to subdivision (a). begin delete 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 end delete begin insert The plaintiff’s motion end insert 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) 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 begin delete section or noticed pursuant to
paragraph (1) of subdivision (c) of Section 835. end delete begin insert section, except
those who have been exempted by the court pursuant to subdivision
(d) of Section 833 or those who are part of a class certified
pursuant to paragraph (2) of subdivision (d) of this section. end insert Service
pursuant to this subdivision 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.

begin delete

(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:

end delete begin delete

(1) The person is not a necessary party to a comprehensive
adjudication and is not required to be served.

end delete begin delete

(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.

end delete begin delete

(j)

end delete

begin insert (i) end insert  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.

begin delete

(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 subdivision (e) of Section 835, and the remaining

end delete

begin insert (j) end insert begin insert   end insert begin insert Compliance with the end insert 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.

begin insert

(k) Whenever proceedings are instituted under this chapter, it
shall be the duty of all claimants interested in the proceedings and
having notice of the proceedings pursuant to this chapter to appear
in the proceedings and to submit proof of their claims at the time,
and in the manner, required by this chapter.

end insert

(l) The court may require notice to be made available in
languages other than English.

(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) A person may apply to intervene in a comprehensive
adjudication conducted pursuant to this chapter pursuant to Section
387.

 

Article 5.  Judge

 

838.  

(a)  begin insert (1) end insert begin insert   end insert 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.

begin insert

(2) A judge of the superior court in which an action is filed may,
on the court’s own motion or the motion of a party, determine if
the action is a comprehensive adjudication under Section 833. A
motion for a determination pursuant to this paragraph shall receive
calendar preference within the action and shall be resolved before
other procedural or dispositive motions.

end insert

(b) A comprehensive adjudication is presumed to be a complex
action begin delete within the meaning of end delete begin insert under end insert Rule 3.400 of the California
Rules of begin delete Court unless a party demonstrates that the comprehensive
adjudication is not complex. end delete begin insert Court. end insert

(c) Sections 170.6 and 394 shall not apply in a comprehensive
adjudication.

(d) Notwithstanding subdivision (b) of Section 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)  begin delete (1) end delete begin delete   end delete 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.

begin delete

(2)

end delete

begin insert (b) end insert  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.

begin delete

(3)

end delete

begin insert (c) end insert  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:

begin delete

(A)

end delete

begin insert (1) end insert  A party to the comprehensive adjudication.

begin delete

(B)

end delete

begin insert (2) end insert  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.

begin delete

(C)

end delete

begin insert (3) end insert  A special master, if one has been appointed.

begin delete

(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.

end delete begin insert

(d) A determination of the department on a submission made
pursuant to subdivision (c) is subject to judicial review pursuant
to Section 1085. Venue shall be in the court with jurisdiction over
the comprehensive adjudication and the case shall be coordinated
with the comprehensive adjudication.

end insert

 

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 begin delete five end delete begin insert 10 end insert
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. begin delete For
purposes of this chapter, “expert witness” means a witness qualified
pursuant to Section 720 of the Evidence Code. end delete

(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, begin insert and end insert a report
of a special master indicating that a condition of long-term
overdraft exists in the basin, begin delete and any other evidence the court finds
relevant end delete shall be admissible begin delete and shall constitute prima facie end delete begin insert as end insert
evidence of a condition of long-term overdraft. begin insert This subdivision
does not limit the admissibility of other relevant evidence. end insert

(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 begin insert the court’s own motion or end insert 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.

begin delete

(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.

end delete begin insert

(b) Before renewing a stay granted pursuant to subdivision (a),
the parties shall report on the progress being made on the issues
that were identified as the reasons for the stay.

end insert

(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 begin delete solution presented by a party, or
considered on the court’s own motion, end delete begin insert solution, end insert the court shall
consider begin delete whether the elements of end delete any existing groundwater
sustainability plan begin delete should be incorporated into the court’s physical
solution. end delete begin insert or program. end insert

 

Article 16.  Judgment

 

850.  

(a) The court may enter a judgment if the court finds that
the judgment meets all of the following criteria:

(1) It begin delete 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 end delete begin insert is consistent with end insert Section 2
of Article X of the California Constitution.

(2) It is consistent with the water right priorities of all
non-stipulating parties begin insert and any persons who have claims that are
exempted pursuant to Section 833 end insert in the basin.

(3) It treats all objecting parties and any persons who have
claims that are exempted pursuant to Section begin delete 841 end delete begin insert 833 end insert 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 begin insert parties
who are end insert groundwater extractors in the basin begin insert or use the basin for
groundwater storage end insert and begin insert is supported by end insert 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.

begin delete

(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).

end delete

 

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 begin delete basin. end delete begin insert basin whose claims
have not been exempted and are covered by the notice provided
in the comprehensive adjudication. end insert

 

Article 18.  Continuing Jurisdiction

 

852.  

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.

begin delete

854.  

The court may appoint a groundwater sustainability agency
to serve as the watermaster in any judgment entered in a
comprehensive adjudication.

end delete

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.