BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1390|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
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THIRD READING
Bill No: AB 1390
Author: Alejo (D), Gomez (D), and Perea (D), et al.
Amended: 9/4/15 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: comprehensive adjudication
SOURCE: California Farm Bureau Federation
DIGEST: This bill creates special procedures for the
comprehensive determination of rights to extract groundwater in
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a basin.
Senate Floor Amendments of 9/4/15 clarify provisions governing
determining groundwater rights; such as those regarding scope of
action, notice and service, basin boundaries, stays, and
judgments.
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
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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 establishes, among other things, 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 through 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
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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.
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 hearing last November on groundwater
adjudication.
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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
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 are both include contingent enactment
provisions.
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: (Verified9/4/15)
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 League of Conservation Voters
California Pear Growers Association
California Seed Association
California Tomato Growers Association
Clean Water Action California
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Community Water Center
Leadership Counsel for Justice & Accountability
Pacific Egg and Poultry Association
Sierra Club California
Western Agricultural Processors Association
Western Growers Association
OPPOSITION: (Verified 9/4/15)
None received
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."
"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."
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
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Prepared by:Dennis O'Connor / N.R. & W. / (916) 651-4116
9/8/15 21:01:48
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