BILL ANALYSIS Ó
AB 1390
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CONCURRENCE IN SENATE AMENDMENTS
AB
1390 (Alejo, et al.)
As Amended September 4, 2015
Majority vote
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|ASSEMBLY: |76-0 |(May 26, 2015) |SENATE: |40-0 |(September 9, |
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Original Committee Reference: W., P., & W.
SUMMARY: Adds a new Chapter 7 to Title 10 of Part 2 of the Code
of Civil Procedure (new CCP provisions) that establish methods
and procedures for comprehensive groundwater adjudications.
The Senate amendments:
1)Require that comprehensive adjudications are conducted
consistently with existing laws, including the following:
a) Achievement of groundwater sustainability within the
timeframes of the Sustainable Groundwater Management Act
(SGMA).
b) Federal laws regarding the determination of federal or
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tribal water rights, as applicable.
c) Existing law determining and establishing the priority
of unexercised groundwater rights.
d) Other provisions of the Code of Civil Procedure to the
extent they do not conflict with the new CCP provisions.
2)Allow a waiver of court fees and costs for eligible applicants
with insufficient economic means, as specified, consistent
with existing law.
3)Exempt specified groundwater rights actions that do not rise
to the level of a comprehensive adjudication.
4)Allow joinder of persons who claim rights to divert and use
water from interconnected surface water bodies or subterranean
streams flowing through known and definite channels if the
court finds such joinder is necessary for the fair and
effective determination of the groundwater rights in a basin.
5)Allow a court to exempt parties extracting or diverting five
acre-feet or less of water if those parties do not wish to
participate in the adjudication and exempting them would not
have a material effect on the groundwater rights of other
parties.
6)Add specificity to how notification of the comprehensive
adjudication shall be conducted and broaden the list of
persons who shall receive notice of the comprehensive
adjudication to include, for example, SGMA groundwater
sustainability agencies (GSAs), persons from an interested
parties list established under SGMA, California Native
American tribes, and others, as specified.
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7)Require, within 15 days of the court order approving both the
notice for the adjudication and a form answer that can be used
in response to the notice, that the plaintiff in the
adjudication request names and addresses of persons reporting
groundwater extractions to the State Water Resources Control
Board (State Water Board) and any GSA in the basin.
8)Refine the entities allowed to intervene by adding the
following that overlie a basin or a portion of the basin: a
GSA, a city, county or both. In accordance with existing law
allows a person to apply to intervene who has an interest in
the matter in litigation, or in the success of either of the
parties, or an interest against both.
9)Disqualify the judge of a superior court of a county that
overlies the basin or any portion of the basin and allow the
Judicial Council to assign a judge to preside in all
proceedings for the comprehensive adjudication.
10)Consolidate, if appropriate, any action against a GSA in the
basin with the comprehensive adjudication if the action
concerns the adoption, substance, or implementation of the
GSA's groundwater sustainability plan (GSP) or the GSA's
compliance with SGMA timelines.
11)Refine procedures that take in to account actual or proposed
groundwater basin boundary changes, either in response to
boundary changes by the Department of Water Resources (DWR) or
by the court directing a party, as specified, to submit a
request for a change to DWR. Specifies DWR's basin boundary
changes are subject to judicial review.
12)Refine service of process in a comprehensive adjudication.
13)Refine the initial disclosures that parties to an
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adjudication must share with one another to establish the
scope and basis of their claims to groundwater, including any
use of expert witnesses.
14)Refine the requirements for proposed stipulated judgments
supported by more than 50% of the parties who are groundwater
extractors in the basin or use the basin for groundwater
storage and to be supported by groundwater extractors
responsible for at least 75% of the groundwater extracted in
the basin during the preceding five years before the filing of
the complaint.
15)Make other technical and conforming changes.
16)Is operative only if SB 226 (Pavley) of the current
legislative session is also enacted and becomes effective.
EXISTING LAW:
1)Expresses the state's regulatory and supervisory authority
over all waters in the state, surface and underground, by
declaring that all waters in the state are property of the
people of the State, while recognizing that rights may be
acquired to the use of water.
2)Establishes background principles that apply to all water
diversion and use, including the Constitutional prohibition
against waste, unreasonable use, unreasonable method of
diversion or unreasonable method of use.
3)Allows a party with rights to extract and use water in a
groundwater basin to initiate a lawsuit so the court can
decide the groundwater rights of all parties overlying the
basin and others who may export water out the basin.
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4)Empowers the court to decide who the extractors are, how much
groundwater those well owners can extract, and who will ensure
that the basin is managed according to the court's decree
(generally called a "watermaster"), including periodically
reporting to the court.
5)Requires DWR to prioritize California's groundwater basins in
order to focus state resources. The basins are prioritized as
either high, medium, low, or very low based on a combination
of factors including, but not limited to, overlying
population, level of dependence for urban and agricultural
water supplies, and impacts on the groundwater from overdraft,
subsidence, saline water intrusion, and water quality
degradation.
6)Allows a local agency to file a request with DWR to revise
groundwater basin boundaries.
7)Requires, by June 30, 2017, that local agencies form one or
more GSAs in all high and medium priority basins subject to
SGMA for the purpose of developing and adopting GSPs or submit
existing groundwater management plans or adjudications that
DWR determines are functionally equivalent to SGMA GSPs.
8)Requires, by January 31, 2020, that GSAs in all critically
overdrafted high and medium priority basins develop and adopt
GSPs that provide for the sustainable management of the
groundwater basin, as defined.
9)Requires, by January 31, 2022, that GSAs in all other high and
medium priority basins subject to SGMA develop and adopt GSPs.
10)Allows the State Water Board to impose an interim plan for
management of a groundwater basin if no GSA is formed by the
deadline, no GSP is adopted by the appropriate deadline, or a
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GSP is adopted which DWR deems insufficient and where the
basin is in a chronic condition of overdraft or in a condition
where groundwater pumping is causing a significant depletion
of interconnected surface waters.
FISCAL EFFECT: According to the Senate Appropriations
Committee, there will be an unknown reduction in costs to the
General Fund for the courts.
COMMENTS: This bill creates a new chapter in the Code of Civil
Procedure that will streamline comprehensive groundwater
adjudications. This bill has also been carefully crafted to
take into consideration how comprehensive adjudications will be
conducted in basins subject to SGMA. For that reason, this bill
and SB 226 are contingent on the enactment of each other. This
bill sets out the general provisions for streamlining
groundwater adjudications that would be applicable to any basin.
SB 226 relies on the new CCP provisions created by this bill
but then sets out additional standards and procedures for the
court to apply in basins that are subject to SGMA in order to
ensure minimal interference with GSP development and maintain
consistency with SGMA objectives.
It is undisputable that groundwater adjudications are lengthy,
complicated, and expensive. An adjudication is when multiple
parties who withdraw water from the same aquifer ask a court to
hear competing arguments and better define the rights that
various entities have to use the groundwater resources. Through
the adjudication the court can assign specific water rights to
water users and can compel the cooperation of those who might
otherwise refuse to limit their groundwater pumping. Even after
a decree is entered, the court retains continuing jurisdiction
and usually appoints a watermaster to ensure that pumping
conforms to the limits defined by the adjudication.
Because there is no state mandate to report groundwater
withdrawals it is difficult to determine who should be legally
noticed of the court action. In addition there are usually
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technical disagreements among parties, including as to the
historic groundwater use which could affect the scope of one's
rights. The Antelope Valley groundwater basin in Los Angeles
and Kern Counties is illustrative: The adjudication has been
sitting in the trial court for 15 years; parties include cities,
farmers, the federal government, and a class of 85,000 property
owners who hold groundwater rights but who have never pumped
water; there are over 9,000 docket entries so far; and, more
than 100 lawyers involved. Similarly, the Santa Maria
groundwater basin in Santa Barbara and San Luis Obispo counties
took 15 years, involved thousands of parties, cost tens of
millions of dollars, and still might not be completely resolved.
The author states that when Governor Brown signed SGMA last year
he acknowledged the need to develop a streamlined groundwater
adjudication process. The author adds that this bill is meant
to address the time sinks that occur in current groundwater
adjudications by clarifying the processes that must be followed.
The author states that streamlining adjudications will ease the
burden on the courts, provide the parties with the most
efficient resolution possible, protect individual rights, all
while appropriately integrating adjudication actions with SGMA.
Other supporters state that this bill will address particular
challenges that exist in groundwater adjudications including
determination of venue, identification of basin boundaries,
disqualification of judges, notice and service of parties,
discovery and the ability of the parties to reach settlement.
Supporters add this bill will do that without impacting due
process or changing California water law.
Most former opposition to this bill was submitted when this bill
and SB 226 were competing measures. Since that time the authors
and many of the supporters and opponents of both bills have been
working together to develop one integrated, contingently-enacted
proposal that places the procedural streamlining processes in
this bill and the SGMA-specific language in SB 226. Following
the latest amendments to this bill many of the prior opponents
have moved to support positions.
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No opposition to this bill was received. However, following the
latest set of amendments, concerns were raised by parties that
questioned whether this bill could impermissibly affect
unexercised water rights (future claims by people who own land
overlying the basin but who do not currently pump groundwater)
or inappropriately bring surface water rights into the
groundwater arena. However, such concerns ignore that current
law already sets forth the ability of the court to determine
water right priorities; and, that where groundwater and surface
water are interconnected, the "common source" doctrine applies,
integrating water rights and applying priorities without regard
to whether the diversion is from surface or groundwater. The
author states that the reason for including provisions
acknowledging existing law is to remove some of the unnecessary
uncertainty that has been a major obstacle to a speedy and fair
resolution of groundwater claims.
In particular, concerns were raised that this bill states a
court may consider applying the principles established in the
1979 California Supreme Court case In re Waters of Long Valley
Creek Stream System (Long Valley). That is existing law and
this bill does not change it. Long Valley is important to
reference however as it established a precedent that all water
rights, including unexercised water rights, could be given a
priority based on the facts of the situation and that addressing
all rights would bring clarity to water rights holders and
foster more beneficial and efficient uses of the State's waters
as mandated by the California Constitution. In addition, the
court reasoned that addressing all water rights could eliminate
the uncertainty that leads to recurrent, costly, and piecemeal
litigation. This bill includes detailed procedures to ensure
that a comprehensive adjudication is truly comprehensive, with
adequate notice and due process protections for all groundwater
extractors and overlying landowners. With those procedural
protections, the application of Long Valley could help provide
water rights holders the security that the water rights
recognized in the decree will be protected, instead of losing
out to claims that were not included or quantified.
In addition to SB 226, there are two other major bills this
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session concerning groundwater. SB 13 (Pavley), Chapter 255,
Statutes of 2015, makes several technical cleanup changes to
SGMA and its related statutory sections. AB 617 (Perea) of the
current legislative session amends SGMA to allow public private
partnerships, provide an appeals process to the State Water
Board for public agencies if state entities agencies are not
working cooperatively to implement the GSP, and to allow
groundwater sustainability planning to be incorporated into an
Integrated Regional Water Management Plan. AB 617 is pending in
the Senate.
Analysis Prepared by:
Tina Leahy / W., P., & W. / (916) 319-2096 FN:
0002360