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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                                                                    Page  3


          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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