Amended in Senate April 6, 2015

Senate BillNo. 226

Introduced by Senator Pavley

February 13, 2015

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


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 wouldbegin delete provideend deletebegin insert find and declareend insert that it establishes a timelybegin insert and comprehensiveend insert methodbegin insert for determining rights to end insertbegin insertgroundwater. The bill would provide that a court shall use the Code of Civil Procedureend insert for determining rights tobegin delete groundwater in furtherance of the objectives ofend deletebegin insert groundwater, except as provided by the special procedures established inend insert thebegin delete act.end deletebegin insert bill.end insert This bill would require the processbegin insert for determining rights to groundwaterend 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 governmentend insertbegin insert.end insertbegin delete This end deletebegin insert The end insertbill 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:

P2    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 10721 of the end insertbegin insertWater Codeend insertbegin insert is amended to
2read:end insert



Unless the context otherwise requires, the following
4definitions govern the construction of this part:

5(a) “Adjudication action” means an action filed in the superior
6or federal district court to determine the rights to extract
7groundwater from a basin or store water within a basin, including,
8but not limited to, actions to quiet title respecting rights to extract
9or store groundwater or an action brought to impose a physical
10solution on a basin.

11(b) “Basin” means a groundwater basin or subbasin identified
12and defined in Bulletin 118 or as modified pursuant to Chapter 3
13(commencing with Section 10722).

14(c) “Bulletin 118” means the department’s report entitled
15 “California’s Groundwater: Bulletin 118” updated in 2003, as it
16may be subsequently updated or revised in accordance with Section

18(d) “Coordination agreement” means a legal agreement adopted
19between two or more groundwater sustainability agencies that
20provides the basis for coordinating multiple agencies or
21groundwater sustainability plans within a basin pursuant to this

P3    1(e) “De minimis extractor” means a person who extracts, for
2domestic purposes, two acre-feet or less per year.

begin insert

3(f) “Expert witness” means a witness qualified pursuant to
4Section 720 of the Evidence Code.

end insert
begin delete


end delete

6begin insert(g)end insert “Governing body” means the legislative body of a
7groundwater sustainability agency.

begin delete


end delete

9begin insert(h)end insert “Groundwater” means water beneath the surface of the earth
10within the zone below the water table in which the soil is
11completely saturated with water, but does not include water that
12flows in known and definite channels.

begin delete


end delete

14begin insert(i)end insert “Groundwater extraction facility” means a device or method
15for extracting groundwater from within a basin.

begin delete


end delete

17begin insert(j)end insert “Groundwater recharge” means the augmentation of
18groundwater, by natural or artificial means.

begin delete


end delete

20begin insert(k)end insert “Groundwater sustainability agency” means one or more
21local agencies that implement the provisions of this part. For
22purposes of imposing fees pursuant to Chapter 8 (commencing
23with Section 10730) or taking action to enforce a groundwater
24sustainability plan, “groundwater sustainability agency” also means
25each local agency comprising the groundwater sustainability
26agency if the plan authorizes separate agency action.

begin delete


end delete

28begin insert(l)end insert “Groundwater sustainability plan” or “plan” means a plan
29of a groundwater sustainability agency proposed or adopted
30pursuant to this part.

begin delete


end delete

32begin insert(m)end insert “Groundwater sustainability program” means a coordinated
33and ongoing activity undertaken to benefit a basin, pursuant to a
34groundwater sustainability plan.

begin delete


end delete

36begin insert(n)end insert “Local agency” means a local public agency that has water
37supply, water management, or land use responsibilities within a
38groundwater basin.

begin delete


end delete

P4    1begin insert(o)end insert “Operator” means a person operating a groundwater
2extraction facility. The owner of a groundwater extraction facility
3shall be conclusively presumed to be the operator unless a
4satisfactory showing is made to the governing body of the
5groundwater sustainability agency that the groundwater extraction
6facility actually is operated by some other person.

begin delete


end delete

8begin insert(p)end insert “Owner” means a person owning a groundwater extraction
9facility or an interest in a groundwater extraction facility other
10than a lien to secure the payment of a debt or other obligation.

begin delete


end delete

12begin insert(q)end insert “Personal information” has the same meaning as defined in
13Section 1798.3 of the Civil Code.

begin delete


end delete

15begin insert(r)end insert “Planning and implementation horizon” means a 50-year
16time period over which a groundwater sustainability agency
17determines that plans and measures will be implemented in a basin
18to ensure that the basin is operated within its sustainable yield.

begin delete


end delete

20begin insert(s)end insert “Public water system” has the same meaning as defined in
21Section 116275 of the Health and Safety Code.

begin delete


end delete

23begin insert(t)end insert “Recharge area” means the area that supplies water to an
24aquifer in a groundwater basin.

begin delete


end delete

26begin insert(u)end insert “Sustainability goal” means the existence and
27implementation of one or more groundwater sustainability plans
28that achieve sustainable groundwater management by identifying
29and causing the implementation of measures targeted to ensure
30that the applicable basin is operated within its sustainable yield.

begin delete


end delete

32begin insert(v)end insert “Sustainable groundwater management” means the
33management and use of groundwater in a manner that can be
34maintained during the planning and implementation horizon
35without causing undesirable results.

begin delete


end delete

37begin insert(w)end insert “Sustainable yield” means the maximum quantity of water,
38calculated over a base period representative of long-term conditions
39in the basin and including any temporary surplus, that can be
P5    1withdrawn annually from a groundwater supply without causing
2an undesirable result.

begin delete


end delete

4begin insert(x)end insert “Undesirable result” means one or more of the following
5effects caused by groundwater conditions occurring throughout
6the basin:

7(1) Chronic lowering of groundwater levels indicating a
8significant and unreasonable depletion of supply if continued over
9the planning and implementation horizon. Overdraft during a period
10of drought is not sufficient to establish a chronic lowering of
11groundwater levels if extractions and recharge are managed as
12necessary to ensure that reductions in groundwater levels or storage
13during a period of drought are offset by increases in groundwater
14levels or storage during other periods.

15(2) Significant and unreasonable reduction of groundwater

17(3) Significant and unreasonable seawater intrusion.

18(4) Significant and unreasonable degraded water quality,
19including the migration of contaminant plumes that impair water

21(5) Significant and unreasonable land subsidence that
22substantially interferes with surface land uses.

23(6) Depletions of interconnected surface water that have
24significant and unreasonable adverse impacts on beneficial uses
25of the surface water.

begin delete


end delete

27begin insert(y)end insert “Water budget” means an accounting of the total
28groundwater and surface water entering and leaving a basin
29including the changes in the amount of water stored.

begin delete


end delete

31begin insert(z)end insert “Watermaster” means a watermaster appointed by a court
32or pursuant to other law.

begin delete


end delete

34begin insert(aa)end insert “Water year” means the period from October 1 through
35the following September 30, inclusive.

begin delete


end delete

37begin insert(bb)end insert “Wellhead protection area” means the surface and
38subsurface area surrounding a water well or well field that supplies
39a public water system through which contaminants are reasonably
40likely to migrate toward the water well or well field.

P6    1begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 10735.8 of the end insertbegin insertWater Codeend insertbegin insert is amended to read:end insert



(a) The board, after notice and a public hearing, may
3adopt an interim plan for a probationary basin.

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

5(1) Identification of the actions that are necessary to correct a
6condition of long-term overdraft or a condition where groundwater
7extractions result in significant depletions of interconnected surface
8waters, including recommendations for appropriate action by any

10(2) A time schedule for the actions to be taken.

11(3) A description of the monitoring to be undertaken to
12determine effectiveness of the plan.

13(c) The interim plan may include the following:

14(1) Restrictions on groundwater extraction.

15(2) A physical solution.

16(3) Principles and guidelines for the administration of rights to
17surface waters that are connected to the basin.

18(d)  Except as provided in subdivision (e), the interim plan shall
19be consistent with water right priorities, subject to Section 2 of
20Article X of the California Constitution.

21(e) The board shall include in its interim plan a groundwater
22sustainability plan, or any element of a plan, that the board finds
23complies with the sustainability goal for that portion of the basin
24or would help meet the sustainability goal for the basin. Where,
25in the judgment of the board, an adjudication action can be relied
26on as part of the interim plan, either throughout the basin or in an
27area within the basin, the board may rely on, or incorporate
28elements of, that adjudication into the interim plan adopted by the

30(f) In carrying out activities that may affect the probationary
31basin, state entities shall comply with an interim plan adopted by
32the board pursuant to this section unless otherwise directed or
33authorized by statute and the state entity shall indicate to the board
34in writing the authority for not complying with the interim plan.

35(g) (1) After the board adopts an interim plan under this section,
36the board shall determine if a groundwater sustainability plan or
37an adjudication action is adequate to eliminate the condition of
38long-term overdraft or condition where groundwater extractions
39result in significant depletions of interconnected surface waters,
40upon petition of either of the following:

P7    1(A) A groundwater sustainability agency that has adopted a
2groundwater sustainability plan for the probationary basin or a
3portion thereof.

4(B) A person authorized to file the petition by a judicial order
5or decree entered in an adjudication action in the probationary

7(2) The board shall act on a petition filed pursuant to paragraph
8(1) within 90 days after the petition is complete. If the board, in
9consultation with the department, determines that the groundwater
10sustainability plan or adjudication action is adequate, the board
11shall rescind the interim plan adopted by the board for the
12probationary basin, except as provided in paragraphs (3) and (4).

13(3) Upon request of the petitioner, the board may amend an
14interim plan adopted under this section to eliminate portions of
15the interim plan, while allowing other portions of the interim plan
16to continue in effect.

17(4) The board may decline to rescind an interim plan adopted
18pursuant to this section if the board determines that the petitioner
19has not provided adequate assurances that the groundwater
20sustainability plan or judicial order or decree will be implemented.

21(5) This subdivision is not a limitation on the authority of the
22board to stay its proceedings under this section or to rescind or
23amend an interim plan adopted pursuant to this section based on
24the progress made by a groundwater sustainability agency or in
25an adjudicationbegin delete action,end deletebegin insert action pursuant to Chapter 12 (commencing
26with Section 10737),end insert
even if the board cannot make a determination
27of adequacy in accordance with paragraph (1).

28(h) Before January 1, 2025, the state board shall not establish
29an interim plan under this section to remedy a condition where the
30groundwater extractions result in significant depletions of
31interconnected surface waters.

32(i) The board’s authority to adopt an interim plan under this
33section does not alter the law establishing water rights priorities
34or any other authority of the board.


begin deleteSECTION 1.end delete
36begin insertSEC. 3.end insert  

Chapter 12 (commencing with Section 10737) is added
37to Part 2.74 of Division 6 of the Water Code, to read:


P8    1Chapter  12. Determination of Rights to Groundwater


3Article 1.  General Provisions




(a) begin deleteThis end deletebegin insertThe Legislature finds and declares that this end insert
6chapter establishes a timelybegin insert and comprehensiveend insert method for
7determining rights to groundwater in furtherance of the objectives
8of this part.

begin delete

9(b) It is the intent of the Legislature to subsequently amend this
10chapter to address all of the following:

end delete
begin delete

11(1) Basin boundaries pursuant to Article 3 (commencing with
12Section 10739).

end delete
begin delete

13(2) Notice and service.

end delete
begin delete

14(3) Provision of expert information and science.

end delete
begin delete

15(4) Fairness and balance under the law.

end delete
begin delete

16(5) Consistency with Winters v. United States (207 U.S. 564
17(1908)), the McCarran Amendment (codified at 43 U.S.C. Sec.
18666), and any other federal laws regarding the determination of
19federal or tribal water rights, as applicable.

end delete
begin insert

20(b) This chapter establishes special procedures for court use in
21determining rights to groundwater. Unless otherwise provided in
22this chapter, a court shall determine rights to groundwater using
23the procedures codified in the Code of Civil Procedure.

end insert
begin insert

begin insert10737.2.end insert  

In making its determination of rights to groundwater,
25a court shall avoid an undesirable results as defined in Section

end insert


28Article 2.  Application




The process defined in this chapter shall be available
31to any court of competent jurisdiction.

begin insert

begin insert10738.2.end insert  

(a) Consistent with subdivision (b) of Section
3310720.3, this chapter applies to an Indian tribe and to the federal
34government, to the extent authorized under federal law.

35(b) Section 389 of the Code of Civil Procedure shall not apply
36to any failure to join an Indian tribe or the United States to an
37action or proceeding brought under this chapter.

end insert
begin insert

begin insert10738.4.end insert  

An action requesting a court to determine water rights
39under this chapter shall be deemed provisionally complex within
P9    1the meaning provided in Rule 3.400 of Title 3 of the California
2Rules of Court.

end insert


4Article 3.  Basin Boundaries




Unless other basin boundaries are established pursuant
7to Section 10722.2 or subdivision (b) of Section 12924, the
8boundaries of a basin shall be as identified in Bulletin 118.


begin insert
10Article begin insert4.end insert  begin insertPartiesend insert
end insert


begin insert

begin insert10740.end insert  

Upon timely motion, the court shall permit the
13department or the Department of Fish and Wildlife, or both, to
14intervene in an action or proceeding brought under this chapter
15if the movant claims an interest relating to the action or proceeding
16and is so situated that disposing of the action or proceeding may,
17as a practical matter, impair or impede the movant’s ability to
18protect its interest.

end insert


begin insert
20Article begin insert5.end insert  begin insertService and Noticeend insert
end insert


begin insert

begin insert10741.end insert  

(a) All known defendants shall be served in the manner
23provided in Chapter 4 (commencing with Section 413.10) of Title
245 of Part 2 of the Code of Civil Procedure.

25(b) (1) All unknown defendants shall be served by publication
26as provided in Section 415.50 of the Code of Civil Procedure.

27(2) In addition to other requirements of Section 415.50 of the
28Code of Civil Procedure, the publication shall describe the
29groundwater basin that is the subject of the action. The publication
30shall describe the groundwater basin as identified pursuant to
31Section 10739, the Internet address for a map depicting the basin,
32and any other identifying information that the court deems

end insert


begin insert
35Article begin insert6.end insert  begin insertDiscoveryend insert
end insert


begin insert

begin insert10742.end insert  

(a) Except as otherwise stipulated or ordered by the
38court, a party shall, without awaiting a discovery request, provide
39to the other parties all of the following:

P10   1(1) The name and, if known, the address and telephone number
2of each individual likely to have discoverable information, along
3with the subjects of that information, who the disclosing party may
4use to support its claims or defenses, unless the use would be solely
5for impeachment.

6(2) A copy or a description by category and location, of all
7documents, electronically stored information, and tangible things
8that the disclosing party has in its possession, custody, or control
9that it may use to support its claims or defenses, unless the use
10would be solely for impeachment.

11(3) A quantification of claims to water in the basin by the
12disclosing party. The disclosing party shall also make available
13for inspection and copying any documents or other evidentiary
14material, unless privileged or protected from disclosure, on which
15each claim is based, including materials bearing on the nature
16and extent of those claims.

17(b) A party shall make all disclosures required by this article
18at or within 14 days after the parties’ initial case management
19conference unless a different time is set by stipulation or court
20order, or unless a party objects during the conference that initial
21disclosures are not appropriate in this action and states the
22objection in a proposed discovery plan. In ruling on the objection,
23the court shall determine what disclosures, if any, are to be made
24and shall set the time for disclosure.

25(c) A party that is first served or otherwise joined after the initial
26case management conference shall make its initial disclosures
27within 30 days after being served or joined, unless a different time
28is set by stipulation or court order.

29(d) A party shall make its initial disclosures based on the
30information then reasonably available to it. A party is not excused
31from making its disclosures because it has not fully investigated
32the case or because it challenges the sufficiency of another party’s
33disclosures or because another party has not made its disclosures.

end insert


begin insert
35Article begin insert7.end insert  begin insertExpert Witnessesend insert
end insert


begin insert

begin insert10743.end insert  

(a) In addition to the other disclosures required by
38this chapter, a party shall disclose to the other parties the identity
39of any expert witness it may use at trial to present evidence.

P11   1(b) Unless otherwise stipulated or ordered by the court, this
2disclosure shall be accompanied by a written report, prepared
3and signed by the expert witness, if the expert witness is retained
4or specially employed to provide expert testimony in the case or
5whose duties as the party’s employee regularly involve giving
6expert testimony. The report shall contain all of the following:

7(1) A complete statement of all opinions the expert witness will
8express and the basis and reasons for them.

9(2) The facts or data considered by the expert witness in forming
10his or her opinions.

11(3) Any exhibits that will be used to summarize or support the
12opinions of the expert witness.

13(4) The expert witness’ qualifications, including a list of all
14publications authored in the previous 10 years.

15(5) A list of all other cases in which, during the previous four
16years, the expert witness testified as an expert at trial or by

18(6) A statement of the compensation to be paid to the expert
19witness for the study and testimony in the case.

20(c) Unless otherwise stipulated or ordered by the court, if the
21expert witness is not required to provide a written report, the
22disclosure shall state both of the following:

23(1) The subject matter on which the expert witness is expected
24to present evidence.

25(2) A summary of the facts and opinions to which the expert
26witness is expected to testify.

27(d) A party shall make the required disclosures at the times and
28in the sequence that the court orders. Absent a stipulation or a
29court order, the disclosures shall be made at either of the following

31(1) At least 90 days before the date set for trial or for the case
32to be ready for trial.

33(2) If the evidence is intended solely to contradict or rebut
34evidence on the same subject matter identified by another party,
35within 30 days after the other party’s disclosure.

end insert


Text--Pages 5, 8, and 11.


Corrected 4-9-15—See last page.     98