BILL ANALYSIS Ó
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: AB 1390 Hearing Date: June 23,
2015
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|Author: |Alejo | | |
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|Version: |May 18, 2015 Amended |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Dennis O'Connor |
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Subject: Groundwater: adjudication.
BACKGROUND AND EXISTING LAW
Last session the Legislature enacted the Sustainable Groundwater
Management Act (SGMA). Among other things, SGMA requires that
each high- and medium-priority groundwater basins be managed
pursuant to a groundwater sustainability plan, with the goal of
achieving sustainability within 20 years.
Many basins will be able to achieve sustainability through more
active and deliberate management. In some basins, however, to
avoid undesirable results, some groundwater uses may need to be
reduced or otherwise changed. SGMA states in several places
that it does not determine or change groundwater rights. To
define, reduce, or otherwise change groundwater rights one must
use the common law process of adjudication.
An adjudication of groundwater rights is initiated by a law
suit. The impetus for such a suit is usually some alleged harm
purportedly caused by excessive groundwater depletion. These
harms could include chronic lowering of groundwater levels;
subsidence; misallocation of storage; water quality; seawater
intrusion; well interference; shortages; or water rights
disputes.
In basins where a lawsuit is brought to adjudicate the basin,
the groundwater rights of all the overliers and appropriators
are determined by the court. The court also decides: 1) who the
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extractors are; 2) how much groundwater those well owners can
extract; and 3) who the Watermaster will be to ensure that the
basin is managed in accordance with the court's decree. The
Watermaster must report periodically to the court.
Given the different kinds of groundwater rights and the
relationships between them, coming to a determination is a
complex task, often taking well over a decade of judicial
activity - the Antelope Valley adjudication has taken 15 years
and counting.
It will be difficult, if not impossible, for some basins to
comply with the requirements of SGMA if they have to wait 15+
years for a final determination of rights pursuant to existing
law.
On November 20, 2014, this committee held an informational
hearing, titled "Resolving Disputes Regarding Groundwater
Rights: Why Does It Take So Long and What Might Be Done to
Accelerate the Process?" At that hearing, witnesses identified
a number of items that cause unnecessary delay. These included
issues of basin boundaries, notice and service, discovery, and
expert testimony.
PROPOSED LAW
This bill would establish a new chapter in the Code of Civil
Procedures titled "Actions Relating to Groundwater Rights."
Specifically, this bill would:
1.Find and declare that it provides a more streamlined and
expeditious groundwater adjudication process, while at the
same time fully respecting established principles of water
rights law and providing participants appropriate due process.
2.State that the new chapter does not alter groundwater rights
or the law concerning groundwater rights.
3.Establish the specific procedures for commencing action,
including:
Establishing whom to name as defendants.
Serving named parties within 30 days of the filing of
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the complaint.
Requiring the plaintiff, or its representative, to
personally appear at a meeting of the board of supervisors
of each county overlying the basin at least in part, and
announce that the plaintiff has filed the adjudication
action and where copies of the complaint may be obtained.
Requiring a preliminary hearing within 180 days of the
filing of the complaint, to conduct a preliminary hearing
to determine if the action should proceed to
comprehensively determine groundwater rights in the basin
Establishing the specific language of the notice of
commencement of groundwater basin adjudication.
Establishing a process whereby the county assessor would
include a court-approved notice and form answer with the
next property tax bill sent to each landowner in the basin.
Allowing only two disqualifications of judges pursuant
to CCP §170.6.
1.Establish the specific procedures to conduct the adjudication,
including:
Authorizing the court to convene a case management
conference within 60 days after service is completed.
Authorizing the court to divide the adjudication action
into phases.
Establishing the initial basin boundaries for an
adjudication action as those identified in the Department
of Water Resources' (DWR) Bulletin 118.
Requiring parties to shall provide the court or special
master initial disclosures of specified information without
waiting for a discovery request.
Requiring parties to disclose to the other parties the
identity of any expert witness it may use at trial to
present evidence.
Authorizing the court to require the parties to submit
written testimony of relevant witnesses in the forms of
affidavits or declarations under penalty of perjury in lieu
of presenting live testimony.
Authorizing the court to appoint a special master, as
specified.
Authorizing the creation of a technical committee to aid
the special master.
Establishing as the policy of the state to encourage the
compromise and settlement of adjudication actions, and
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provide special procedures to aid creation of a compromise
and settlement.
Requiring the court to impose a physical solution that
is part of a stipulated judgment as a component of the
final judgment if the physical solution satisfies specific
criteria, and if a party submits a proposed stipulated
judgment that is supported by:
(1) More than 50 percent of
all named parties in the adjudication action and
(2) Groundwater rights
holders holding title to at least 75 percent of the
groundwater production during the past 10 years in the
basin.
ARGUMENTS IN SUPPORT
According to a coalition of agricultural interests "When
Governor Brown signed the Sustainable Groundwater Management Act
(SGMA) bill package last year, there was interest in improving
the groundwater adjudication process. AB 1390 will add a new
chapter to the Code of Civil Procedure making improvements to
the judicial proceedings of comprehensive adjudications of
groundwater rights in a basin. Well interference and other
claims that do not require the comprehensive adjudication of an
entire groundwater basin will follow existing procedures.
"The goal of AB 1390 is to address the time sinks that occur in
current groundwater adjudications by clarifying the processes
that must be followed. Streamlining the process will ease the
burden on the courts, provide the parties with the most
efficient resolution possible, protect individual rights, all
the while appropriately coordinating adjudication actions with
SGMA.
"The bill would also facilitate and encourage the early
settlement of groundwater adjudications by providing tools and
opportunities for courts, claimants, and local groundwater
management entities to develop solutions in a timelier manner."
ARGUMENTS IN OPPOSITION
The Rural County Representatives of California (RCRC) and the
California Association of Counties (CSAC) raise a number of
objections. These include requiring the plaintiff to appear
before the board of supervisors to announce the initiation of
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the adjudication action. They argue that members of the general
public may not directly place items on the meeting agenda of the
Board of Supervisors. So, the required notice would likely not
be posted on the meeting agenda and the announcement would have
to be made during the general comment period, meaning
potentially-impacted parties would be unaware that the notice
would be provided at the meeting. Additionally, the Supervisors
would be unable to respond to the plaintiff's notice or ask
questions." RCRC and CSAC also object to having the county
assessors include a court-approved notice and form answer with
the property tax bill, and raise a number of concerns with due
process.
The Sierra Club opposes AB 1391 in part because it believes that
the bill may undermine the efforts of SGMA. Additionally, the
Sierra Club argues that provisions that permit a stipulated
judgment and settlement based on an agreement of only 50% of
parties with 75% of water production for the past 10 years will
adversely affect smaller landowners and leave them without a
voice in a settlement.
The California League of Conservation Voters, Clean Water
Action, and Community Water Center criticize the bill for not
adequately protecting the interests of disadvantaged
communities, failing to provide attorney's fees and costs for
those with a significant financial hardship, failing to provide
notices in multiple languages, and requiring notices to be sent
with property tax statements, which are sometimes sent to escrow
companies that pay the taxes, and not to the property-owning
taxpayer.
COMMENTS
Everyone Agrees The Current Process Needs Improvement. At this
committee's hearing last November, no one argued that the
current adjudication process couldn't be improved. Indeed, all
agreed that adjudications took much too long and all were able
to identify a number of areas of the process that could be
streamlined.
Appellate Court Justice Ronald Robie described the real problem
best at the November 2014 hearing when, commenting on the decade
plus time to complete an adjudication, he observed "That's good
for the lawyers, but you know that when you do have that many
lawyers working, you're also costing a lot of money to the
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people who have the rights, so groundwater adjudications at the
common law can be expensive to the parties."
There Is A Question Of Where To Put The Improvements. This bill
proposes to put the changes to the groundwater adjudication
process in the Code of Civil Procedure. Another bill, SB 226
(Pavley) proposes to place expedited adjudication language in
SGMA to ensure that any future adjudication is done so "in
furtherance of the objectives" of SGMA. This is an issue that
perhaps is better addressed by the Judiciary Committee.
There Is A Question Of How The System Should Be Improved. There
seems to be broad agreement on what things slow down the
adjudication process. These include things like determining
basin boundaries, notice and service of affected parties,
discovery, relitigation of previous determinations of fact or
law, identification of and testimony of expert witnesses, and
challenging judges for alleged bias. There is less agreement on
which aspects of the adjudication can be addressed and how they
can be addressed without compromising due process
considerations. This too is an issue that perhaps is better
addressed by the Judiciary Committee.
Level of Detail. This bill at times goes into tremendous detail
on some parts of the adjudicative process. For example, the two
subdivisions of §833 that detail the specific language of the
notice of commencement of groundwater basin adjudication
(subdivisions a and b) span nearly two pages. It is not clear
whether this level of detail is helpful or unhelpful. This too
is yet another issue that perhaps is better addressed by the
Judiciary Committee.
Protection Of Environment. At the November 2014 hearing, in
response to a question regarding whether it would be helpful to
clarify in the law how to address, for example, areas where
there is a very clear surface-groundwater interaction, Justice
Robie observed that groundwater adjudications are "a common law
proceeding and common law doesn't provide for protection of
ecosystems. In other words, when you have a groundwater
adjudication, protection of ecosystems or environmental factors
of that type are not currently covered in what you normally
raise in an adjudication ? subsidence and things like that, they
haven't dealt with ?but you get to that frequently in practical
matter through CEQA where mitigation is required, but an
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adjudication of course is not subject to CEQA, so I think you
pointed to something that could be added to it. In an
adjudication, you only have the right holders present. There's
no place for intervention by public interest groups or anybody
else that I'm aware of."
This bill does not address how to ensure an adjudication
appropriately considers environmental factors.
Related Bills. A number of bills were introduced this year to
address one or more aspects of groundwater management in general
and accelerated adjudication of groundwater rights in
particular. Bills still under active consideration this year
are:
AB 453 (Bigelow)Authorizes existing groundwater management
plans (aka AB 3030 plans) to be renewed and
amended for high and medium priority basins, until
a GSP is adopted. Also grants agencies operating
under an AB 3030 plan the same powers and
authorities of a groundwater management agencies
the authorities of a groundwater sustainably
agency.
AB 617 (Perea)Makes numerous changes throughout SGMA: Some
changes are minor and technical; others are
substantive policy changes, such as eliminating
the requirement that a groundwater sustainability
agency submit its groundwater sustainability plan
to DWR as a condition of a groundwater
sustainability agency becoming authorized exercise
its powers to implement SGMA.
AB 938 (Salas)Makes a minor technical change regarding
reprioritization of groundwater basins under SGMA.
AB 939 (Salas)Makes a minor technical change regarding making
data in support of a proposed available to the
public.
AB 1242 (Gray)Requires the State Water Resources Control Board,
when setting flow requirements for a Water Quality
Control Plan (WQCP), to take into consideration
any applicable groundwater sustainability plans if
a groundwater basin could be affected and to
identify projects for fish recovery that may be
undertaken in lieu of instream flows.
SB 13 (Pavley)Makes numerous non-substantive technical changes
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to SGMA.
SB 226 (Pavley)Streamlines legal processes used to assign water
rights in a groundwater basin.
Double-Referral. The Rules Committee referred this bill to both
the Committee on Natural Resources and Water and to the
Committee on Judiciary. Therefore, if this bill passes this
committee, it will be referred to the Committee on Judiciary,
which will consider the issues within their jurisdiction.
SUGGESTED AMENDMENTS
SUPPORT
California Farm Bureau Federation (Sponsor)
Agricultural Council of California
Almond Hullers and Processors Association
Association of California Egg Farmers
California Association of Wheat Growers
California Bean Shippers Association
California Cattlemen's Association
California Chamber of Commerce
California Citrus Mutual
California Cotton Ginners Association
California Cotton Growers Association
California Dairies Inc.
California Fresh Fruit Association
California Grain and Feed Association
California Pear Growers Association
California Seed Association
California Tomato Growers Association
Pacific Egg and Poultry Association
Western Agricultural Processors Association
Western Growers Association
OPPOSITION
California Association of Counties (CSAC)
California League of Conservation Voters
Clean Water Action
Community Water Center
Rural County Representatives of California
Sierra Club California
One individual
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