BILL ANALYSIS Ó
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: SB 226 Hearing Date: April 14,
2015
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|Author: |Pavley | | |
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|Version: |April 6, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Dennis O'Connor |
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Subject: Sustainable Groundwater Management Act: groundwater
rights
BACKGROUND AND EXISTING LAW
Last session the Legislature enacted the Sustainable Groundwater
Management Act (SGMA). Among other things, 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.
An adjudication of groundwater rights is initiated by a law
suit. 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.
In basins where a lawsuit is brought to adjudicate the basin,
the groundwater rights of all the overliers and appropriators
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are determined by the court. The court also decides: 1) who the
extractors are; 2) how much groundwater those well owners can
extract; and 3) who the Watermaster will be to ensure that the
basin is managed in accordance with the court's decree. The
Watermaster must report periodically to the court.
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.
On November 20, 2014, this committee held an informational
hearing, titled "Resolving Disputes Regarding Groundwater
Rights: Why Does It Take So Long and What Might Be Done to
Accelerate the Process?" At that hearing, witnesses identified
a number of items that cause unnecessary delay. These included
issues of basin boundaries, notice and service, discovery, and
expert testimony.
PROPOSED LAW
This bill would add a new Chapter 12 to SGMA titled
Determination of Rights to Groundwater. Specifically, this bill
would:
Find and declare that it establishes a timely and comprehensive
method for determining rights to groundwater.
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.
Require the process for determining rights to groundwater to be
available to any court of competent jurisdiction.
Deem an action requesting a court to determine water rights under
this chapter to be provisionally complex within the meaning
provided in the California Rules of Court.
Direct a court, in making its determination of rights to
groundwater, to avoid undesirable results as defined in SGMA
Provide that it applies to Indian tribes and the federal
government to the extent authorized by federal and tribal law.
Require the boundaries of a basin to be as identified in Bulletin
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118, unless other basin boundaries are established pursuant to
SGMA.
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.
Specify service and notice procedures.
Require a party to provide specified initial disclosures to the
other parties, including, among other disclosures, information
relating to expert witnesses.
The bill would also make other conforming and technical changes
to the Water Code.
ARGUMENTS IN SUPPORT
According to the author, "Under current law, groundwater rights
adjudications take an extraordinarily long time and are
extraordinarily expensive. As we were working last year to
enact the Sustainable Groundwater Management Act (SGMA) two
things became clear: 1) there will almost certainly be more such
adjudications, and 2) it will be difficult, if not impossible,
for some basins to comply with the requirements of SGMA if we
don't speed up the adjudication process."
"SB 226 tackles head on the various time sinks witnesses
identified at this committee's hearing last November on
groundwater adjudication. SB 226 addresses these issues as
follows:
Basin Boundaries - boundaries shall be as identified in DWR's Bulletin 118, unless modified as
provided in SGMA.
Notice & Service - notice to known parties is as provided in the Code of Civil Procedures
(CCP). Unknown parties would be served by publication.
Discovery - follows the Federal procedures, which require disclosure of specific items without
awaiting a discovery request.
Expert Witness - follows the Federal procedures, which require an expert witness to provide a
written report on opinions the witness will express and the
basis and reasons for them."
"With these changes, SB 226 will reduce needless delays while
still protecting due process rights."
ARGUMENTS IN OPPOSITION
The California Farm Bureau Federation writes, "When Governor
Brown signed the Sustainable Groundwater Management Act (SGMA)
bill package last year, interest in improving the groundwater
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adjudication process was expressed by the Administration and
authors of the bill package. The Farm Bureau has worked with
many others since the SGMA was signed into law and has
introduced a comprehensive bill (AB 1390 - Alejo) to address the
issues by adding a new chapter to the Code of Civil Procedure
making improvements to the judicial proceedings of comprehensive
adjudications of groundwater rights in a basin. These changes
will reduce the burden of groundwater adjudications on both the
courts and claimants without altering the law of groundwater
rights without disruption the Sustainable Groundwater Management
Act planning process. While we appreciate [Senator Pavley's]
interest in the issue of adjudication we respectfully prefer the
approach offered in AB 1390."
"SB 226 makes changes to the SGMA that already includes
significant groundwater reforms which focuses on improving the
sustainability and reliability of California's groundwater
basins. We believe that the SGMA should be given time to be
implemented and that it is premature to make significant policy
changes to the Act at this time."
COMMENTS
Everyone Agrees The Current Process Needs Improvement. At this
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."
There Is A Question Of Where To Put The Improvements. This bill
proposes to put the changes to the groundwater adjudication
process in SGMA to ensure that any future adjudication is done
so "in furtherance of the objectives" of SGMA. The Farm Bureau
prefers to put such changes in the Code of Civil Procedure
instead. This is an issue that perhaps is better addressed by
the Judiciary Committee.
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There Is A Question Of How The System Should Be Improved. There
seems to be broad agreement on what things slow down the
adjudication process. These include things like determining
basin boundaries, notice and service of affected parties,
discovery, relitigation of previous determinations of fact or
law, identification of and testimony of expert witnesses, and
challenging judges for alleged bias. There is less agreement on
which aspects of the adjudication can be addressed and how they
can be addressed without compromising due process
considerations. This too is an issue that perhaps is better
addressed by the Judiciary Committee.
Protection Of Environment. At the November 2014 hearing, in
response to a question regarding whether it would be helpful to
clarify in the law how to address, for example, areas where
there is a very clear surface-groundwater interaction, Justice
Robie observed that groundwater adjudications are "a common law
proceeding and common law doesn't provide for protection of
ecosystems. In other words, when you have a groundwater
adjudication, protection of ecosystems or environmental factors
of that type are not currently covered in what you normally
raise in an adjudication ? subsidence and things like that, they
haven't dealt with ?but you get to that frequently in practical
matter through CEQA where mitigation is required, but an
adjudication of course is not subject to CEQA, so I think you
pointed to something that could be added to it. In an
adjudication, you only have the right holders present. There's
no place for intervention by public interest groups or anybody
else that I'm aware of."
This 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.
Double-Referral. The Rules Committee referred this bill to both
the Committee on Natural Resources and Water and to the
Committee on Judiciary. Therefore, if this bill passes this
committee, it will be referred to the Committee on Judiciary,
which will consider the issues within their jurisdiction.
SUGGESTED AMENDMENTS: None
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SUPPORT
Sierra Club California
OPPOSITION
California Farm Bureau Federation
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