Amended in Senate April 6, 2015

Senate Bill No. 226

Introduced by Senator Pavley

February 13, 2015

An act to begin insert amend Sections 10721 and 10735.8 end insert begin insert , and to end insert add Chapter 12 (commencing with Section 10737) to Part 2.74 of Division begin delete 6 end delete begin insert 6, end insert of the Water Code, relating to groundwater.

LEGISLATIVE COUNSEL’S DIGEST

SB 226, as amended, Pavley. Sustainable Groundwater Management Act: groundwater rights.

Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources that are designated as basins subject to critical conditions of overdraft to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2020, and requires all other groundwater basins designated as high- or medium-priority basins to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2022, except as specified.

Existing law specifies the jurisdiction of the courts. Under existing law, courts may adjudicate rights to produce groundwater and exercise other powers relating to the supervision of a groundwater basin.

This bill would begin delete provide end delete begin insert find and declare end insert that it establishes a timely begin insert and comprehensive end insert method begin insert for determining rights to end insert begin insert groundwater. The bill would provide that a court shall use the Code of Civil Procedure end insert for determining rights to begin delete groundwater in furtherance of the objectives of end delete begin insert groundwater, except as provided by the special procedures established in end insert the begin delete act. end delete begin insert bill. end insert This bill would require the process begin insert for determining rights to groundwater end insert to be available to any court of competent jurisdiction. begin insert The bill would provide that it applies to Indian tribes and the federal government end insert begin insert . end insert begin delete This end delete begin insert The end insert bill would require the boundaries of a basin to be as identified in Bulletin 118, unless other basin boundaries are established, as specified. begin insert The bill would authorize the Department of Water Resources and the Department of Fish and Wildlife to intervene in an action or proceeding if they claim an interest relating to the action or proceeding, as provided. The bill would specify service and notice procedures. The bill would require a party to provide specified initial disclosures to the other parties, including, among other disclosures, information relating to expert witnesses. end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 10721 of the end insert begin insert Water Code end insert begin insert is amended to
read: end insert

10721.  

Unless the context otherwise requires, the following
definitions govern the construction of this part:

(a) “Adjudication action” means an action filed in the superior
or federal district court to determine the rights to extract
groundwater from a basin or store water within a basin, including,
but not limited to, actions to quiet title respecting rights to extract
or store groundwater or an action brought to impose a physical
solution on a basin.

(b) “Basin” means a groundwater basin or subbasin identified
and defined in Bulletin 118 or as modified pursuant to Chapter 3
(commencing with Section 10722).

(c) “Bulletin 118” means the department’s report entitled
“California’s Groundwater: Bulletin 118” updated in 2003, as it
may be subsequently updated or revised in accordance with Section
12924.

(d) “Coordination agreement” means a legal agreement adopted
between two or more groundwater sustainability agencies that
provides the basis for coordinating multiple agencies or
groundwater sustainability plans within a basin pursuant to this
part.

(e) “De minimis extractor” means a person who extracts, for
domestic purposes, two acre-feet or less per year.

begin insert

(f) “Expert witness” means a witness qualified pursuant to
Section 720 of the Evidence Code.

end insert begin delete

(f)

end delete

begin insert (g) end insert  “Governing body” means the legislative body of a
groundwater sustainability agency.

begin delete

(g)

end delete

begin insert (h) end insert  “Groundwater” means water beneath the surface of the earth
within the zone below the water table in which the soil is
completely saturated with water, but does not include water that
flows in known and definite channels.

begin delete

(h)

end delete

begin insert (i) end insert  “Groundwater extraction facility” means a device or method
for extracting groundwater from within a basin.

begin delete

(i)

end delete

begin insert (j) end insert  “Groundwater recharge” means the augmentation of
groundwater, by natural or artificial means.

begin delete

(j)

end delete

begin insert (k) end insert  “Groundwater sustainability agency” means one or more
local agencies that implement the provisions of this part. For
purposes of imposing fees pursuant to Chapter 8 (commencing
with Section 10730) or taking action to enforce a groundwater
sustainability plan, “groundwater sustainability agency” also means
each local agency comprising the groundwater sustainability
agency if the plan authorizes separate agency action.

begin delete

(k)

end delete

begin insert (l) end insert  “Groundwater sustainability plan” or “plan” means a plan
of a groundwater sustainability agency proposed or adopted
pursuant to this part.

begin delete

(l)

end delete

begin insert (m) end insert  “Groundwater sustainability program” means a coordinated
and ongoing activity undertaken to benefit a basin, pursuant to a
groundwater sustainability plan.

begin delete

(m)

end delete

begin insert (n) end insert  “Local agency” means a local public agency that has water
supply, water management, or land use responsibilities within a
groundwater basin.

begin delete

(n)

end delete

begin insert (o) end insert  “Operator” means a person operating a groundwater
extraction facility. The owner of a groundwater extraction facility
shall be conclusively presumed to be the operator unless a
satisfactory showing is made to the governing body of the
groundwater sustainability agency that the groundwater extraction
facility actually is operated by some other person.

begin delete

(o)

end delete

begin insert (p) end insert  “Owner” means a person owning a groundwater extraction
facility or an interest in a groundwater extraction facility other
than a lien to secure the payment of a debt or other obligation.

begin delete

(p)

end delete

begin insert (q) end insert  “Personal information” has the same meaning as defined in
Section 1798.3 of the Civil Code.

begin delete

(q)

end delete

begin insert (r) end insert  “Planning and implementation horizon” means a 50-year
time period over which a groundwater sustainability agency
determines that plans and measures will be implemented in a basin
to ensure that the basin is operated within its sustainable yield.

begin delete

(r)

end delete

begin insert (s) end insert  “Public water system” has the same meaning as defined in
Section 116275 of the Health and Safety Code.

begin delete

(s)

end delete

begin insert (t) end insert  “Recharge area” means the area that supplies water to an
aquifer in a groundwater basin.

begin delete

(t)

end delete

begin insert (u) end insert  “Sustainability goal” means the existence and
implementation of one or more groundwater sustainability plans
that achieve sustainable groundwater management by identifying
and causing the implementation of measures targeted to ensure
that the applicable basin is operated within its sustainable yield.

begin delete

(u)

end delete

begin insert (v) end insert  “Sustainable groundwater management” means the
management and use of groundwater in a manner that can be
maintained during the planning and implementation horizon
without causing undesirable results.

begin delete

(v)

end delete

begin insert (w) end insert  “Sustainable yield” means the maximum quantity of water,
calculated over a base period representative of long-term conditions
in the basin and including any temporary surplus, that can be
withdrawn annually from a groundwater supply without causing
an undesirable result.

begin delete

(w)

end delete

begin insert (x) end insert  “Undesirable result” means one or more of the following
effects caused by groundwater conditions occurring throughout
the basin:

(1) Chronic lowering of groundwater levels indicating a
significant and unreasonable depletion of supply if continued over
the planning and implementation horizon. Overdraft during a period
of drought is not sufficient to establish a chronic lowering of
groundwater levels if extractions and recharge are managed as
necessary to ensure that reductions in groundwater levels or storage
during a period of drought are offset by increases in groundwater
levels or storage during other periods.

(2) Significant and unreasonable reduction of groundwater
storage.

(3) Significant and unreasonable seawater intrusion.

(4) Significant and unreasonable degraded water quality,
including the migration of contaminant plumes that impair water
supplies.

(5) Significant and unreasonable land subsidence that
substantially interferes with surface land uses.

(6) Depletions of interconnected surface water that have
significant and unreasonable adverse impacts on beneficial uses
of the surface water.

begin delete

(x)

end delete

begin insert (y) end insert  “Water budget” means an accounting of the total
groundwater and surface water entering and leaving a basin
including the changes in the amount of water stored.

begin delete

(y)

end delete

begin insert (z) end insert  “Watermaster” means a watermaster appointed by a court
or pursuant to other law.

begin delete

(z)

end delete

begin insert (aa) end insert  “Water year” means the period from October 1 through
the following September 30, inclusive.

begin delete

(aa)

end delete

begin insert (bb) end insert  “Wellhead protection area” means the surface and
subsurface area surrounding a water well or well field that supplies
a public water system through which contaminants are reasonably
likely to migrate toward the water well or well field.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 10735.8 of the end insert begin insert Water Code end insert begin insert is amended to read: end insert

10735.8.  

(a) The board, after notice and a public hearing, may
adopt an interim plan for a probationary basin.

(b) The interim plan shall include all of the following:

(1) Identification of the actions that are necessary to correct a
condition of long-term overdraft or a condition where groundwater
extractions result in significant depletions of interconnected surface
waters, including recommendations for appropriate action by any
person.

(2) A time schedule for the actions to be taken.

(3) A description of the monitoring to be undertaken to
determine effectiveness of the plan.

(c) The interim plan may include the following:

(1) Restrictions on groundwater extraction.

(2) A physical solution.

(3) Principles and guidelines for the administration of rights to
surface waters that are connected to the basin.

(d)  Except as provided in subdivision (e), the interim plan shall
be consistent with water right priorities, subject to Section 2 of
Article X of the California Constitution.

(e) The board shall include in its interim plan a groundwater
sustainability plan, or any element of a plan, that the board finds
complies with the sustainability goal for that portion of the basin
or would help meet the sustainability goal for the basin. Where,
in the judgment of the board, an adjudication action can be relied
on as part of the interim plan, either throughout the basin or in an
area within the basin, the board may rely on, or incorporate
elements of, that adjudication into the interim plan adopted by the
board.

(f) In carrying out activities that may affect the probationary
basin, state entities shall comply with an interim plan adopted by
the board pursuant to this section unless otherwise directed or
authorized by statute and the state entity shall indicate to the board
in writing the authority for not complying with the interim plan.

(g) (1) After the board adopts an interim plan under this section,
the board shall determine if a groundwater sustainability plan or
an adjudication action is adequate to eliminate the condition of
long-term overdraft or condition where groundwater extractions
result in significant depletions of interconnected surface waters,
upon petition of either of the following:

(A) A groundwater sustainability agency that has adopted a
groundwater sustainability plan for the probationary basin or a
portion thereof.

(B) A person authorized to file the petition by a judicial order
or decree entered in an adjudication action in the probationary
basin.

(2) The board shall act on a petition filed pursuant to paragraph
(1) within 90 days after the petition is complete. If the board, in
consultation with the department, determines that the groundwater
sustainability plan or adjudication action is adequate, the board
shall rescind the interim plan adopted by the board for the
probationary basin, except as provided in paragraphs (3) and (4).

(3) Upon request of the petitioner, the board may amend an
interim plan adopted under this section to eliminate portions of
the interim plan, while allowing other portions of the interim plan
to continue in effect.

(4) The board may decline to rescind an interim plan adopted
pursuant to this section if the board determines that the petitioner
has not provided adequate assurances that the groundwater
sustainability plan or judicial order or decree will be implemented.

(5) This subdivision is not a limitation on the authority of the
board to stay its proceedings under this section or to rescind or
amend an interim plan adopted pursuant to this section based on
the progress made by a groundwater sustainability agency or in
an adjudication begin delete action, end delete begin insert action pursuant to Chapter 12 (commencing
with Section 10737), end insert even if the board cannot make a determination
of adequacy in accordance with paragraph (1).

(h) Before January 1, 2025, the state board shall not establish
an interim plan under this section to remedy a condition where the
groundwater extractions result in significant depletions of
interconnected surface waters.

(i) The board’s authority to adopt an interim plan under this
section does not alter the law establishing water rights priorities
or any other authority of the board.

begin delete SECTION 1. end delete
begin insert SEC. 3. end insert   

Chapter 12 (commencing with Section 10737) is added
to Part 2.74 of Division 6 of the Water Code, to read:

 

Chapter  12. Determination of Rights to Groundwater

 

Article 1.  General Provisions

 

10737.  

(a)  begin delete This end delete begin insert The Legislature finds and declares that this end insert
chapter establishes a timely begin insert and comprehensive end insert method for
determining rights to groundwater in furtherance of the objectives
of this part.

begin delete

(b) It is the intent of the Legislature to subsequently amend this
chapter to address all of the following:

end delete begin delete

(1) Basin boundaries pursuant to Article 3 (commencing with
Section 10739).

end delete begin delete

(2) Notice and service.

end delete begin delete

(3) Provision of expert information and science.

end delete begin delete

(4) Fairness and balance under the law.

end delete begin delete

(5) Consistency with Winters v. United States (207 U.S. 564
(1908)), the McCarran Amendment (codified at 43 U.S.C. Sec.
666), and any other federal laws regarding the determination of
federal or tribal water rights, as applicable.

end delete begin insert

(b) This chapter establishes special procedures for court use in
determining rights to groundwater. Unless otherwise provided in
this chapter, a court shall determine rights to groundwater using
the procedures codified in the Code of Civil Procedure.

end insert

begin insert

begin insert 10737.2. end insert   

In making its determination of rights to groundwater,
a court shall avoid an undesirable results as defined in Section
10721.

end insert

 

Article 2.  Application

 

10738.  

The process defined in this chapter shall be available
to any court of competent jurisdiction.

begin insert

begin insert 10738.2. end insert   

(a) Consistent with subdivision (b) of Section
10720.3, this chapter applies to an Indian tribe and to the federal
government, to the extent authorized under federal law.

(b) Section 389 of the Code of Civil Procedure shall not apply
to any failure to join an Indian tribe or the United States to an
action or proceeding brought under this chapter.

end insert begin insert

begin insert 10738.4. end insert   

An action requesting a court to determine water rights
under this chapter shall be deemed provisionally complex within
the meaning provided in Rule 3.400 of Title 3 of the California
Rules of Court.

end insert

 

Article 3.  Basin Boundaries

 

10739.  

Unless other basin boundaries are established pursuant
to Section 10722.2 or subdivision (b) of Section 12924, the
boundaries of a basin shall be as identified in Bulletin 118.

 

begin insert

Article begin insert 4. end insert   begin insert Parties end insert

end insert

 

begin insert

begin insert 10740. end insert   

Upon timely motion, the court shall permit the
department or the Department of Fish and Wildlife, or both, to
intervene in an action or proceeding brought under this chapter
if the movant claims an interest relating to the action or proceeding
and is so situated that disposing of the action or proceeding may,
as a practical matter, impair or impede the movant’s ability to
protect its interest.

end insert

 

begin insert

Article begin insert 5. end insert   begin insert Service and Notice end insert

end insert

 

begin insert

begin insert 10741. end insert   

(a) All known defendants shall be served in the manner
provided in Chapter 4 (commencing with Section 413.10) of Title
5 of Part 2 of the Code of Civil Procedure.

(b) (1) All unknown defendants shall be served by publication
as provided in Section 415.50 of the Code of Civil Procedure.

(2) In addition to other requirements of Section 415.50 of the
Code of Civil Procedure, the publication shall describe the
groundwater basin that is the subject of the action. The publication
shall describe the groundwater basin as identified pursuant to
Section 10739, the Internet address for a map depicting the basin,
and any other identifying information that the court deems
appropriate.

end insert

 

begin insert

Article begin insert 6. end insert   begin insert Discovery end insert

end insert

 

begin insert

begin insert 10742. end insert   

(a) Except as otherwise stipulated or ordered by the
court, a party shall, without awaiting a discovery request, provide
to the other parties all of the following:

(1) The name and, if known, the address and telephone number
of each individual likely to have discoverable information, along
with the subjects of that information, who the disclosing party may
use to support its claims or defenses, unless the use would be solely
for impeachment.

(2) A copy or a description by category and location, of all
documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control
that it may use to support its claims or defenses, unless the use
would be solely for impeachment.

(3) A quantification of claims to water in the basin by the
disclosing party. The disclosing party shall also make available
for inspection and copying any documents or other evidentiary
material, unless privileged or protected from disclosure, on which
each claim is based, including materials bearing on the nature
and extent of those claims.

(b) A party shall make all disclosures required by this article
at or within 14 days after the parties’ initial case management
conference unless a different time is set by stipulation or court
order, or unless a party objects during the conference that initial
disclosures are not appropriate in this action and states the
objection in a proposed discovery plan. In ruling on the objection,
the court shall determine what disclosures, if any, are to be made
and shall set the time for disclosure.

(c) A party that is first served or otherwise joined after the initial
case management conference shall make its initial disclosures
within 30 days after being served or joined, unless a different time
is set by stipulation or court order.

(d) A party shall make its initial disclosures based on the
information then reasonably available to it. A party is not excused
from making its disclosures because it has not fully investigated
the case or because it challenges the sufficiency of another party’s
disclosures or because another party has not made its disclosures.

end insert

 

begin insert

Article begin insert 7. end insert   begin insert Expert Witnesses end insert

end insert

 

begin insert

begin insert 10743. end insert   

(a) In addition to the other disclosures required by
this chapter, a party shall disclose to the other parties the identity
of any expert witness it may use at trial to present evidence.

(b) Unless otherwise stipulated or ordered by the court, this
disclosure shall be accompanied by a written report, prepared
and signed by the expert witness, if the expert witness is retained
or specially employed to provide expert testimony in the case or
whose duties as the party’s employee regularly involve giving
expert testimony. The report shall contain all of the following:

(1) A complete statement of all opinions the expert witness will
express and the basis and reasons for them.

(2) The facts or data considered by the expert witness in forming
his or her opinions.

(3) Any exhibits that will be used to summarize or support the
opinions of the expert witness.

(4) The expert witness’ qualifications, including a list of all
publications authored in the previous 10 years.

(5) A list of all other cases in which, during the previous four
years, the expert witness testified as an expert at trial or by
deposition.

(6) A statement of the compensation to be paid to the expert
witness for the study and testimony in the case.

(c) Unless otherwise stipulated or ordered by the court, if the
expert witness is not required to provide a written report, the
disclosure shall state both of the following:

(1) The subject matter on which the expert witness is expected
to present evidence.

(2) A summary of the facts and opinions to which the expert
witness is expected to testify.

(d) A party shall make the required disclosures at the times and
in the sequence that the court orders. Absent a stipulation or a
court order, the disclosures shall be made at either of the following
times:

(1) At least 90 days before the date set for trial or for the case
to be ready for trial.

(2) If the evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by another party,
within 30 days after the other party’s disclosure.

end insert

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CORRECTIONS:

Text--Pages 5, 8, and 11.

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