BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1390| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1390 Author: Alejo (D), Gomez (D), and Perea (D), et al. Amended: 9/1/15 in Senate Vote: 21 SENATE NATURAL RES. & WATER COMMITTEE: 8-0, 6/23/15 AYES: Pavley, Stone, Hertzberg, Hueso, Jackson, Monning, Vidak, Wolk NO VOTE RECORDED: Allen SENATE JUDICIARY COMMITTEE: 7-0, 7/14/15 AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski SENATE APPROPRIATIONS COMMITTEE: 5-1, 8/27/15 AYES: Lara, Beall, Hill, Leyva, Mendoza NOES: Nielsen NO VOTE RECORDED: Bates (Reconsideration of favorable vote granted) SENATE APPROPRIATIONS COMMITTEE: 6-0, 8/27/15 AYES: Lara, Beall, Hill, Leyva, Mendoza, Nielsen NO VOTE RECORDED: Bates ASSEMBLY FLOOR: 76-0, 5/26/15 - See last page for vote SUBJECT: Groundwater: adjudication SOURCE: California Farm Bureau Federation DIGEST: This bill creates special procedures for the comprehensive determination of rights to extract groundwater in AB 1390 Page 2 a basin. ANALYSIS: Existing law: 1)Defines, reduces, or otherwise changes groundwater rights one must use the common law process of adjudication. a) An adjudication of groundwater rights is initiated by a lawsuit. 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. b) 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: i) Who the extractors are; ii) How much groundwater those well owners can extract; and iii) Who the Watermaster will be to ensure that the basin is managed in accordance with the court's decree. c) The Watermaster must report periodically to the court, which typically maintains continuing jurisdiction over the adjudication. 2)Requires, under the Sustainable Groundwater Management Act (SGMA), 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. This bill adds a new chapter in the Civil Code that establishes the processes and procedures for comprehensively determining rights to extract groundwater in a basin, whether based on appropriation, overlying right, or other basis of right. Specifically, this process would establish, among other things, AB 1390 Page 3 the following: 1)The persons who would be required to be a defendant in the adjudication. 2)The method for serving and noticing affected parties. 3)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. 4)The disqualification of a judge of a superior court that overlies the basin or portion of the basin. 5)The ability of the court to provide or authorize the use of an electronic service system. 6)The revision of groundwater basins by the Department of Water Resources (DWR). 7)Requirements for initial disclosures. The 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. 8)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. 9)The ability for the court to issue a preliminary injunction, stay, or stipulated judgment. Comments Everyone agrees the current process needs improvement. At the Senate Natural Resources and Water 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. AB 1390 Page 4 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 people who have the rights, so groundwater adjudications at the common law can be expensive to the parties." Sustainable groundwater management. 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. 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. Related Legislation AB 1390, along with SB 226 (Pavley) tackle head on the various time sinks witnesses identified at the Senate Natural Resources and Water Committee's hearing last November on groundwater adjudication. AB 1390 includes all process and procedural changes necessary to accelerate adjudications without changing groundwater rights law. SB 226 includes all include all necessary changes to SGMA. This AB 1390 Page 5 includes establishing how adjudications in high- and medium-priority basins would be accommodated within SGMA without changing any of the policies inherent within SGMA. SB 226 and AB 1390 both include contingent enactment provisions, and together will reduce needless delays in settling groundwater rights disputes while still protecting due process rights. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: Yes According to the Senate Appropriations Committee, unknown reduction in costs to the General Fund for the courts. SUPPORT: (Verified8/15/15) California Farm Bureau Federation (source) 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: (Verified8/28/15) AB 1390 Page 6 California Association of Counties California League of Conservation Voters Clean Water Action Community Water Center Rural County Representatives of California Sierra Club California Two individuals ASSEMBLY FLOOR: 76-0, 5/26/15 AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins NO VOTE RECORDED: Bloom, Chávez, Harper, Mathis Prepared by:Dennis O'Connor / N.R. & W. / (916) 651-4116 9/1/15 21:45:39 **** END ****