Amended in Senate May 5, 2015

Amended in Senate April 6, 2015

Senate BillNo. 226


Introduced by Senator Pavley

February 13, 2015


An act to amend Sections 10721 andbegin delete 10735.8,end deletebegin insert 10735.8 of,end insert and to add Chapter 12 (commencing with Section 10737) to Part 2.74 of Divisionbegin delete 6, ofend deletebegin insert 6 of,end insert 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 find and declare that it establishes a timely and comprehensive method for determining rights to groundwater. The bill would provide that a court shall use the Code of Civil Procedure for determining rights to groundwater, except as provided by the special procedures established in the bill. This bill would require the process for determining rights to groundwater to be available to any court of competent jurisdiction. The bill would provide that it applies to Indian tribes and the federal government. The bill would require the boundaries of a basin to be as identified in Bulletin 118, unless other basin boundaries are established, as specified. 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.

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

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

P2    1

SECTION 1.  

Section 10721 of the Water Code is amended to
2read:

3

10721.  

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
1712924.

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
22part.

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

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

5(g) “Governing body” means the legislative body of a
6groundwater sustainability agency.

7(h) “Groundwater” means water beneath the surface of the earth
8within the zone below the water table in which the soil is
9completely saturated with water, but does not include water that
10flows in known and definite channels.

11(i) “Groundwater extraction facility” means a device or method
12for extracting groundwater from within a basin.

13(j) “Groundwater recharge” means the augmentation of
14groundwater, by natural or artificial means.

15(k) “Groundwater sustainability agency” means one or more
16local agencies that implement the provisions of this part. For
17purposes of imposing fees pursuant to Chapter 8 (commencing
18with Section 10730) or taking action to enforce a groundwater
19sustainability plan, “groundwater sustainability agency” also means
20each local agency comprising the groundwater sustainability
21agency if the plan authorizes separate agency action.

22(l) “Groundwater sustainability plan” or “plan” means a plan
23of a groundwater sustainability agency proposed or adopted
24pursuant to this part.

25(m) “Groundwater sustainability program” means a coordinated
26and ongoing activity undertaken to benefit a basin, pursuant to a
27groundwater sustainability plan.

28(n) “Local agency” means a local public agency that has water
29supply, water management, or land use responsibilities within a
30groundwater basin.

31(o) “Operator” means a person operating a groundwater
32extraction facility. The owner of a groundwater extraction facility
33shall be conclusively presumed to be the operator unless a
34satisfactory showing is made to the governing body of the
35groundwater sustainability agency that the groundwater extraction
36facility actually is operated by some other person.

37(p) “Owner” means a person owning a groundwater extraction
38facility or an interest in a groundwater extraction facility other
39than a lien to secure the payment of a debt or other obligation.

P4    1(q) “Personal information” has the same meaning as defined in
2Section 1798.3 of the Civil Code.

3(r) “Planning and implementation horizon” means a 50-year
4time period over which a groundwater sustainability agency
5determines that plans and measures will be implemented in a basin
6to ensure that the basin is operated within its sustainable yield.

7(s) “Public water system” has the same meaning as defined in
8Section 116275 of the Health and Safety Code.

9(t) “Recharge area” means the area that supplies water to an
10aquifer in a groundwater basin.

11(u) “Sustainability goal” means the existence and
12implementation of one or more groundwater sustainability plans
13that achieve sustainable groundwater management by identifying
14and causing the implementation of measures targeted to ensure
15that the applicable basin is operated within its sustainable yield.

16(v) “Sustainable groundwater management” means the
17management and use of groundwater in a manner that can be
18maintained during the planning and implementation horizon
19without causing undesirable results.

20(w) “Sustainable yield” means the maximum quantity of water,
21calculated over a base period representative of long-term conditions
22in the basin and including any temporary surplus, that can be
23withdrawn annually from a groundwater supply without causing
24an undesirable result.

25(x) “Undesirable result” means one or more of the following
26effects caused by groundwater conditions occurring throughout
27the basin:

28(1) Chronic lowering of groundwater levels indicating a
29significant and unreasonable depletion of supply if continued over
30the planning and implementation horizon. Overdraft during a period
31of drought is not sufficient to establish a chronic lowering of
32groundwater levels if extractions and recharge are managed as
33necessary to ensure that reductions in groundwater levels or storage
34during a period of drought are offset by increases in groundwater
35levels or storage during other periods.

36(2) Significant and unreasonable reduction of groundwater
37storage.

38(3) Significant and unreasonable seawater intrusion.

P5    1(4) Significant and unreasonable degraded water quality,
2including the migration of contaminant plumes that impair water
3supplies.

4(5) Significant and unreasonable land subsidence that
5substantially interferes with surface land uses.

6(6) Depletions of interconnected surface water that have
7significant and unreasonable adverse impacts on beneficial uses
8of the surface water.

9(y) “Water budget” means an accounting of the total
10groundwater and surface water entering and leaving a basin
11including the changes in the amount of water stored.

12(z) “Watermaster” means a watermaster appointed by a court
13or pursuant to other law.

14(aa) “Water year” means the period from October 1 through the
15following September 30, inclusive.

begin delete

16(bb)

end delete

17begin insert(ab)end insertbegin insertend insert “Wellhead protection area” means the surface and
18subsurface area surrounding a water well or well field that supplies
19a public water system through which contaminants are reasonably
20likely to migrate toward the water well or well field.

21

SEC. 2.  

Section 10735.8 of the Water Code is amended to read:

22

10735.8.  

(a) The board, after notice and a public hearing, may
23adopt an interim plan for a probationary basin.

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

25(1) Identification of the actions that are necessary to correct a
26condition of long-term overdraft or a condition where groundwater
27extractions result in significant depletions of interconnected surface
28waters, including recommendations for appropriate action by any
29person.

30(2) A time schedule for the actions to be taken.

31(3) A description of the monitoring to be undertaken to
32determine effectiveness of the plan.

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

34(1) Restrictions on groundwater extraction.

35(2) A physical solution.

36(3) Principles and guidelines for the administration of rights to
37surface waters that are connected to the basin.

38(d)  Except as provided in subdivision (e), the interim plan shall
39be consistent with water right priorities, subject to Section 2 of
40Article X of the California Constitution.

P6    1(e) The board shall include in its interim plan a groundwater
2sustainability plan, or any element of a plan, that the board finds
3complies with the sustainability goal for that portion of the basin
4or would help meet the sustainability goal for the basin. Where,
5in the judgment of the board, an adjudication action can be relied
6on as part of the interim plan, either throughout the basin or in an
7area within the basin, the board may rely on, or incorporate
8elements of, that adjudication into the interim plan adopted by the
9board.

10(f) In carrying out activities that may affect the probationary
11basin, state entities shall comply with an interim plan adopted by
12the board pursuant to this section unless otherwise directed or
13authorized by statute and the state entity shall indicate to the board
14in writing the authority for not complying with the interim plan.

15(g) (1) After the board adopts an interim plan under this section,
16the board shall determine if a groundwater sustainability plan or
17an adjudication action is adequate to eliminate the condition of
18long-term overdraft or condition where groundwater extractions
19result in significant depletions of interconnected surface waters,
20upon petition of either of the following:

21(A) A groundwater sustainability agency that has adopted a
22groundwater sustainability plan for the probationary basin or a
23portion thereof.

24(B) A person authorized to file the petition by a judicial order
25or decree entered in an adjudication action in the probationary
26basin.

27(2) The board shall act on a petition filed pursuant to paragraph
28(1) within 90 days after the petition is complete. If the board, in
29consultation with the department, determines that the groundwater
30sustainability plan or adjudication action is adequate, the board
31shall rescind the interim plan adopted by the board for the
32probationary basin, except as provided in paragraphs (3) and (4).

33(3) Upon request of the petitioner, the board may amend an
34interim plan adopted under this section to eliminate portions of
35the interim plan, while allowing other portions of the interim plan
36to continue in effect.

37(4) The board may decline to rescind an interim plan adopted
38pursuant to this section if the board determines that the petitioner
39has not provided adequate assurances that the groundwater
40sustainability plan or judicial order or decree will be implemented.

P7    1(5) This subdivision is not a limitation on the authority of the
2board to stay its proceedings under this section or to rescind or
3amend an interim plan adopted pursuant to this section based on
4the progress made by a groundwater sustainability agency or in
5an adjudication action pursuant to Chapter 12 (commencing with
6Section 10737), even if the board cannot make a determination of
7adequacy in accordance with paragraph (1).

8(h) Before January 1, 2025, the state board shall not establish
9an interim plan under this section to remedy a condition where the
10groundwater extractions result in significant depletions of
11interconnected surface waters.

12(i) The board’s authority to adopt an interim plan under this
13section does not alter the law establishing water rights priorities
14or any other authority of the board.

15

SEC. 3.  

Chapter 12 (commencing with Section 10737) is added
16to Part 2.74 of Division 6 of the Water Code, to read:

17 

18Chapter  12. Determination of Rights to Groundwater
19

19 

20Article 1.  General Provisions
21

 

22

10737.  

(a) The Legislature finds and declares that this chapter
23establishes a timely and comprehensive method for determining
24rights to groundwater in furtherance of the objectives of this part.

25(b) This chapter establishes special procedures for court use in
26determining rights to groundwater. Unless otherwise provided in
27this chapter, a court shall determine rights to groundwater using
28the procedures codified in the Code of Civil Procedure.

begin insert

29(c) Nothing contained in this chapter shall be deemed to repeal
30or preclude an action to determine rights to groundwater in
31accordance with the common law.

end insert
32

10737.2.  

In making its determination of rights to groundwater,
33a court shall avoid an undesirablebegin delete resultsend deletebegin insert resultend insert as defined in
34Section 10721.

35 

36Article 2.  Application
37

 

38

10738.  

The process defined in this chapter shall be available
39to any court of competent jurisdiction.

P8    1

10738.2.  

(a) Consistent with subdivision (b) of Section
210720.3, this chapter applies to an Indian tribe and to the federal
3government, to the extent authorized under federal law.

4(b) Section 389 of the Code of Civil Procedure shall not apply
5to any failure to join an Indian tribe or the United States to an
6action or proceeding brought under this chapter.

7

10738.4.  

An action requesting a court to determine water rights
8under this chapter shall be deemed provisionally complex within
9the meaning provided in Rule 3.400 of Title 3 of the California
10Rules of Court.

11 

12Article 3.  Basin Boundaries
13

 

14

10739.  

Unless other basin boundaries are established pursuant
15to Section 10722.2 or subdivision (b) of Section 12924, the
16boundaries of a basin shall be as identified in Bulletin 118.

17 

18Article 4.  Parties
19

 

20

10740.  

Upon timely motion, the court shall permit the
21department or the Department of Fish and Wildlife, or both, to
22intervene in an action or proceeding brought under this chapter if
23the movant claims an interest relating to the action or proceeding
24and is so situated that disposing of the action or proceeding may,
25as a practical matter, impair or impede the movant’s ability to
26protect its interest.

27 

28Article 5.  Service and Notice
29

 

30

10741.  

(a) All known defendants shall be served in the manner
31provided in Chapter 4 (commencing with Section 413.10) of Title
325 of Part 2 of the Code of Civil Procedure.

33(b) (1) All unknown defendants shall be served by publication
34as provided in Section 415.50 of the Code of Civil Procedure.

35(2) In addition to other requirements of Section 415.50 of the
36Code of Civil Procedure, the publication shall describe the
37groundwater basin that is the subject of the action. The publication
38shall describe the groundwater basin as identified pursuant to
39Section 10739, the Internet address for a map depicting the basin,
P9    1and any other identifying information that the court deems
2appropriate.

3 

4Article 6.  Discovery
5

 

6

10742.  

(a) Except as otherwise stipulated or ordered by the
7court, a party shall, without awaiting a discovery request, provide
8to the other parties all of the following:

9(1) The name and, if known, the address and telephone number
10of each individual likely to have discoverable information, along
11with the subjects of that information, who the disclosing party may
12use to support its claims or defenses, unless the use would be solely
13for impeachment.

14(2) A copy or a description by category and location, of all
15documents, electronically stored information, and tangible things
16that the disclosing party has in its possession, custody, or control
17that it may use to support its claims or defenses, unless the use
18would be solely for impeachment.

19(3) A quantification of claims to water in the basin by the
20disclosing party. The disclosing party shall also make available
21for inspection and copying any documents or other evidentiary
22material, unless privileged or protected from disclosure, on which
23each claim is based, including materials bearing on the nature and
24extent of those claims.

25(b) A party shall make all disclosures required by this article at
26or within 14 days after the parties’ initial case management
27conference unless a different time is set by stipulation or court
28order, or unless a party objects during the conference that initial
29disclosures are not appropriate in this action and states the objection
30in a proposed discovery plan. In ruling on the objection, the court
31shall determine what disclosures, if any, are to be made and shall
32set the time for disclosure.

33(c) A party that is first served or otherwise joined after the initial
34case management conference shall make its initial disclosures
35within 30 days after being served or joined, unless a different time
36is set by stipulation or court order.

37(d) A party shall make its initial disclosures based on the
38information then reasonably available to it. A party is not excused
39from making its disclosures because it has not fully investigated
P10   1the case or because it challenges the sufficiency of another party’s
2disclosures or because another party has not made its disclosures.

3 

4Article 7.  Expert Witnesses
5

 

6

10743.  

(a) In addition to the other disclosures required by this
7chapter, a party shall disclose to the other parties the identity of
8any expert witness it may use at trial to present evidence.

9(b) Unless otherwise stipulated or ordered by the court, this
10disclosure shall be accompanied by a written report, prepared and
11signed by the expert witness, if the expert witness is retained or
12specially employed to provide expert testimony in the case or
13whose duties as the party’s employee regularly involve giving
14expert testimony. The report shall contain all of the following:

15(1) A complete statement of all opinions the expert witness will
16express and the basis and reasons for them.

17(2) The facts or data considered by the expert witness in forming
18his or her opinions.

19(3) Any exhibits that will be used to summarize or support the
20opinions of the expert witness.

21(4) The expert witness’ qualifications, including a list of all
22publications authored in the previous 10 years.

23(5) A list of all other cases in which, during the previous four
24years, the expert witness testified as an expert at trial or by
25deposition.

26(6) A statement of the compensation to be paid to the expert
27witness for the study and testimony in the case.

28(c) Unless otherwise stipulated or ordered by the court, if the
29expert witness is not required to provide a written report, the
30disclosure shall state both of the following:

31(1) The subject matter on which the expert witness is expected
32to present evidence.

33(2) A summary of the facts and opinions to which the expert
34witness is expected to testify.

35(d) A party shall make the required disclosures at the times and
36in the sequence that the court orders. Absent a stipulation or a court
37order, the disclosures shall be made at either of the following times:

38(1) At least 90 days before the date set for trial or for the case
39to be ready for trial.

P11   1(2) If the evidence is intended solely to contradict or rebut
2evidence on the same subject matter identified by another party,
3within 30 days after the other party’s disclosure.



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