BILL ANALYSIS                                                                                                                                                                                                    

                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          AB 1390 (Alejo) - Groundwater: adjudication.
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          |Version: August 19, 2015        |Policy Vote: N.R. & W. 8 - 0,   |
          |                                |          JUD. 7 - 0            |
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          |Urgency: No                     |Mandate: Yes (see staff         |
          |                                |comment)                        |
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          |Hearing Date: August 24, 2015   |Consultant: Marie Liu           |
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          This bill may meet the criteria for referral to the Suspense  

          Summary:  AB 1390 would create special procedures for the  
          comprehensive determination of rights to extract groundwater in  
          a basin. 

           Unknown reduction in costs to the General Fund for the courts

           Unknown changes in legal costs to the General Fund for cases  
            in which the state is a party to a groundwater adjudication as  
            a holder of a water rights or as an intervener. 

          Background:  Last session the Legislature passed the Sustainable  


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          Groundwater Management Act (SGMA), which required high- and  
          medium- priority groundwater basins to be managed pursuant  
          to a groundwater sustainability plan, with the goal of  
          achieving sustainability within 20 years. The SGMA does not  
          determine or change groundwater rights. To define, reduce,  
          or otherwise change groundwater rights, one must use a  
          common law process of adjudication which begin with a  
          Groundwater adjudications are among the lengthiest court  
          proceedings in California and typically involve hundreds,  
          if not thousands, of parties, often with conflicting cases.  
          As such, these cases often take over a decade of judicial  
          activity. In order for certain basins to comply with the  
          requirements of the SGMA, especially in light of the  
          drought, groundwater rights will need to be determined in a  
          more timely fashion.

          Proposed Law:  
            This bill would add a new procedure in the Civil Code that  
          would apply to actions that would comprehensively determine  
          rights to extract groundwater in a basin, whether based on  
          appropriation, overlying right, or other basis of right. The  
          process would only apply to actions that involve comprehensive  
          allocations. Specifically, this process would establish, among  
          other things, the following:
           The persons who would be required to be a defendant in the  

           The timeline in, and the language with, which the plaintiff  
            shall serve the defendants.

           The right for the following entities to intervene in a  
            comprehensive adjudication: a groundwater sustainability  
            agency for the basin, a city or county that overlies the  
            basin, a person with fee simple ownership in a parcel in the  
            basin, and the state 

           The disqualification of a judge of a superior court that  


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            overlies the basin or portion of the basin.

           The ability of the court to provide or authorize the use of an  
            electronic service system.

           The revision of groundwater basins by the Department of Water  
            Resources (DWR) 

           Requirements for initial disclosures. Judicial Council would  
            be authorized to develop a form for initial disclosures. To  
            the extent possible, parties would be required to serve the  
            initial disclosures electronically.

           Requirements for the use of expert witnesses, written  
            testimony, and special masers. The court may request that DWR  
            or the State Water Resources control Board recommend  
            candidates for appointment as a special master or to review  
            qualifications of candidates.

           The ability for the court to issue a preliminary injunction,  
            stay, or stipulated judgement.

          Legislation:  SB 226 (Pavley) creates a streamlined legal  
          process used to assign water rights in a groundwater basin. SB  
          226 is pending in Assembly Appropriations.

          Comments:  To the extent the streamlined processed established  
          in this bill will reduce the amount of court time dedicated to  
          an adjudication case, this bill may result in court savings,  
          though the amount of those savings is unknown. Also, in the  
          cases where the state is a groundwater rights holder, there will  
          also be unknown savings to the state as a party to the case.
          This bill could also result in unknown new costs by allowing the  


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          state to intervene in a complete adjudication. The state's  
          involvement could be a simplification or complication of the  
          case thereby also affecting court courts. Staff notes that even  
          if the state's involvement results in a complication of the  
          complete adjudication, the process established under this bill  
          still will likely be shorter and less costly than a case under  
          the existing process. 

          Staff notes that the authors of this bill and SB 266 are  
          currently in discussions with the Governor's office  
          regarding reconciling differences between the two measures  
          and a proposal from the Governor. This bill is likely to be  
          further amended in the future to reflect these discussions.

          This bill constitutes a state mandate as it creates a new crime.  
          However, under the California Constitution, costs associated  
          with this mandate are not reimbursable. 

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