BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 226 (Pavley)
Version: April 6, 2015
Hearing Date: April 28, 2015
Fiscal: Yes
Urgency: No
TH
SUBJECT
Sustainable Groundwater Management Act: Groundwater Rights
DESCRIPTION
This bill would establish special procedures for courts use in
determining rights to groundwater under the Sustainable
Groundwater Management Act (SGMA). This bill would specify
procedures for, among other things, making determinations of
rights to groundwater under SGMA, for serving notice to unknown
parties, for providing initial disclosure of discoverable
information, including information pertaining to expert
witnesses, and for intervention by the Department of Water
Resources and the Department of Fish and Wildlife.
BACKGROUND
Groundwater adjudications -- civil cases to determine rights to
groundwater in a particular area -- are among the lengthiest
court proceedings in California. These cases typically involve
hundreds if not thousands of parties, often with conflicting
claims over the right to extract groundwater. According to one
commenter:
There is a joke among lawyers that working on one groundwater
adjudication can make your career. The laborious court
process settles fights over rights to the state's increasingly
overtapped aquifers and sets out long-term management plans
for them. And while they are crucial to resolving water
rights disputes, getting there is not easy.
Case in point is an adjudication of the Antelope Valley
groundwater basin, which has been sitting in a trial court for
15 years. The case is enormous, involving a multitude of
public agencies and landowners large and small who hold
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groundwater pumping rights. 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 9,404 docket entries in the case so far and more
than 100 lawyers listed on the case . . .
There are several reasons these cases take so long, and
attorneys agree some parts of the process could be improved to
speed them up. Finding a way to expedite the service process
is one. Identifying all the parties and getting them
personally served is "a very lengthy and expensive and not
very reliable process," said Thomas S. Bunn, with Lagerlof,
Senecal, Gosney & Kruse LLP, who is involved in the Antelope
Valley adjudication. He said it took six years to serve the
parties in that case.
Discovery is also a real headache because a lot of time is
spent trying to figure out the basic information in the case -
who is pumping, how much they are pumping, how much water they
are claiming a right to and how they use the water . . .
Requiring litigants to provide that information up front could
cut a big chunk off time and expense . . . (Fiona Smith, State
Looking to Speed Groundwater Lawsuits, Daily Journal (Oct. 29,
2014).)
This bill would create special procedures for adjudicating
rights to water in groundwater basins under the Sustainable
Groundwater Management Act (Wat. Code Sec. 10720 et seq.). It
would provide that in making determinations of rights to
groundwater, a court shall avoid undesirable results, as
defined. This bill would also provide special procedures for
conducting initial discovery, for determining the boundaries of
a groundwater basin, for serving affected parties, and for
allowing the Departments of Water Resources and Fish and
Wildlife to intervene in an adjudication.
CHANGES TO EXISTING LAW
Existing law , the Sustainable Groundwater Management Act,
requires all groundwater basins designated as basins subject to
critical conditions of overdraft to be managed under a
groundwater sustainability plan by January 31, 2020, and
requires all other groundwater basins designated as high- or
medium-priority basins by the Department of Water Resources to
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be managed under a groundwater sustainability plan by January
31, 2022, except as specified. (Wat. Code Sec. 10720 et seq.)
Existing law defines "undesirable result" to mean one or more of
the following effects caused by groundwater conditions occurring
throughout a groundwater basin:
chronic lowering of groundwater levels indicating a
significant and unreasonable depletion of supply if continued
over the planning and implementation horizon, as specified;
significant and unreasonable reduction of groundwater storage;
significant and unreasonable seawater intrusion;
significant and unreasonable degraded water quality, including
the migration of contaminant plumes that impair water
supplies;
significant and unreasonable land subsidence that
substantially interferes with surface land uses; or
depletions of interconnected surface water that have
significant and unreasonable adverse impacts on beneficial
uses of the surface water. (Wat. Code Sec. 10721(w).)
This bill would find and declare that it establishes special
procedures for courts to use in determining rights to
groundwater, and that unless otherwise provided, a court shall
determine rights to groundwater using the procedures codified in
the Code of Civil Procedure.
This bill would provide that in making its determination of
rights to groundwater, a court shall avoid an undesirable result
as defined in Section 10721 of the Water Code.
This bill would provide that an action to determine water rights
shall be deemed provisionally complex within the meaning
provided in Rule 3.400 of Title 3 of the California Rules of
Court.
This bill would state that Section 389 of the Code of Civil
Procedure (dismissal for failure to join an indispensable party)
shall not apply to any failure to join an Indian tribe or the
United States to an action or proceeding.
This bill would state that upon timely motion, a court shall
permit the Department of Water Resources or the Department of
Fish and Wildlife, or both, to intervene in an action or
proceeding if the movant claims an interest relating to the
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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.
This bill provides that in addition to other requirements for
the service of a summons by publication, the publication shall
describe the groundwater basin that is the subject of the
action, and shall provide the Internet address for a map
depicting the basin and any other identifying information that
the court deems appropriate.
This bill would state, 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:
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;
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; and
a quantification of claims to water in the basin by the
disclosing party, and access to 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.
This bill would provide that a party shall make all required
disclosures 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.
This bill states that in ruling on the objection, the court
shall determine what disclosures, if any, are to be made and
shall set the time for disclosure.
This bill would provide that 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
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or court order.
This bill would provide that a party shall make its initial
disclosures based on the information then reasonably available
to it, and that 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.
This bill would state that in addition to the other required
disclosures, a party shall disclose to the other parties the
identity of any expert witness it may use at trial to present
evidence.
This bill would provide that, unless otherwise stipulated or
ordered by the court, the disclosures pertaining to expert
witnesses 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. This bill would specify that the report shall
contain all of the following:
a complete statement of all opinions the expert witness will
express and the basis and reasons for them;
the facts or data considered by the expert witness in forming
his or her opinions;
any exhibits that will be used to summarize or support the
opinions of the expert witness;
the expert witness' qualifications, including a list of all
publications authored in the previous 10 years;
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; and
a statement of the compensation to be paid to the expert
witness for the study and testimony in the case.
This bill would also provide that, 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:
the subject matter on which the expert witness is expected to
present evidence; and
a summary of the facts and opinions to which the expert
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witness is expected to testify.
This bill would state that a party shall make the required
disclosures at the times and in the sequence that the court
orders, and that absent a stipulation or a court order, the
disclosures shall be made at either of the following times:
at least 90 days before the date set for trial or for the case
to be ready for trial; or
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.
COMMENT
1.Stated need for the bill
According to the author:
In California, the method for determining groundwater rights
is through the common law process of groundwater adjudication.
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 . . .
On November 20, 2014, the Senate Natural Resources and Water
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. SB 226 addresses these issues as follows:
Basin Boundaries - boundaries shall be as identified in
[Department of Water Resources'] Bulletin 118, unless
modified as provided in [Sustainable Groundwater Management
Act].
Notice & Service - notice to known parties is as
provided in the Code of Civil Procedure (CCP). Unknown
parties would be served by publication.
Discovery - Copies the Federal procedures, which require
disclosure of specific items without awaiting a discovery
request.
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Expert Witness - Copies 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.
1.Special Procedures to Accelerate Adjudications
This bill would establish special procedural rules under the
Sustainable Groundwater Management Act (SGMA) for determining
rights to groundwater in an effort to accelerate groundwater
adjudication proceedings. Drawn from the Federal Rules of Civil
Procedure, this bill would set new requirements for making
initial disclosures of discoverable evidence and for disclosing
information about a party's expert witnesses, for allowing the
Department of Water Resources and the Department of Fish and
Wildlife to intervene in groundwater adjudications, and for
serving both known and unknown parties. This bill would also
set specific standards by which groundwater cases shall be
adjudicated.
a. Non-joinder of Parties
This bill would provide that Section 389 of the Code of Civil
Procedure shall not apply to any failure to join an Indian
tribe or the United States to a groundwater adjudication under
SGMA. Section 389 provides that a person who is subject to
service of process and whose joinder will not deprive the
court of jurisdiction over the subject matter of the action
shall be joined as a party in the action if (1) in his absence
complete relief cannot be accorded among those already parties
or (2) he claims an interest relating to the subject of the
action and is so situated that the disposition of the action
in his absence may (i) as a practical matter impair or impede
his ability to protect that interest or (ii) leave any of the
persons already parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent
obligations by reason of his claimed interest. If such a
person cannot be made a party, Section 389 empowers the court
to dismiss the action if it determines the non-joined party is
indispensable to resolution of the matter. In California,
groundwater basins are shared by a multitude of people and
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entities, including federally recognized Indian tribes and
instrumentalities of the United States. Since these entities
might have a claim or interest in a groundwater basin, and
since California may, in some instances, be unable to compel
them to become a party in a groundwater adjudication, this
provision of the bill ensures that the non-joinder of those
parties would not result in the dismissal of the adjudication.
b. Intervention
This bill provides that the Department of Water Resources and
the Department of Fish and Wildlife shall have intervention by
right into a groundwater adjudication under SGMA if they claim
an interest in the proceeding and that the proceeding may, as
a practical matter, impair or impede their ability to protect
that interest. As managers of natural resources dependent on
groundwater and interconnected surface water, the adjudication
of groundwater basins may impact the interests of these
Departments.
Several agricultural stakeholders writing in opposition state
that this provision "would fundamentally change water rights
in California." They state:
Under current law, groundwater rights are an overlying
right, an appropriative right or a prescriptive right. By
allowing the above referenced agencies to intervene in an
adjudication action, the court would be forced to examine
the impairment of the agency's claimed interest and
potentially grant the agency a groundwater right not
otherwise entitled to under established law.
Staff notes that merely allowing these Departments to join as
parties to an adjudication would not lead to the recognition
of a groundwater right. Just like any other party, these
Departments would have to establish their claim to groundwater
in the basin under applicable law. Further, it would be
premature to conclude as a matter of law that these
Departments could not claim a right to groundwater in basins
undergoing adjudication, particularly in light of recent court
decisions recognizing that certain quantities of groundwater
may be subject to the public trust doctrine. (See
Environmental Law Foundation et al. v. State Water Resources
Control Board, 34-2010-800000583 (Sacramento Superior Court).)
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c. Notice and Service
This bill would provide that publication to unknown defendants
-- those who may have a claim to groundwater extraction in a
basin -- shall be served by publication, and that the
publication shall describe the groundwater basin that is the
subject of the action, and shall provide the Internet address
for a map depicting the basin and any other identifying
information that the court deems appropriate. Under existing
law, a summons is generally served to defendants in an action
by personal delivery of a copy of the summons and of the
complaint to the person to be served. (Code Civ. Proc. Sec.
415.10.) If a court determines that a party to be served
cannot with reasonable diligence be served by personal service
or in another manner specified in the Code of Civil Procedure,
then it may order service by publication. (Code Civ. Proc.
Sec. 415.10.) This method of service is useful for giving
unknown parties notice of a proceeding which they may have an
interest in. Service by publication is generally accomplished
by publishing a summons in a named newspaper, published in
this state, that is most likely to give actual notice to the
party to be served. This bill would enhance the notice given
to unknown defendants served by publication by requiring
additional information about the groundwater basin undergoing
adjudication, thereby better enabling readers of the
publication to determine if they have an interest in the
adjudication.
d. Discovery and Expert Witnesses
This bill would also require all parties to disclose through
discovery specific limited information about their claims and
defenses in a groundwater adjudication, as well as information
about expert witnesses that will provide testimony on their
behalf, without waiting for a discovery order from the court.
As noted in the Background above, the discovery process in
groundwater adjudications leads to significant delays as
parties wait for each other to submit information about their
claimed rights to groundwater. The process required by this
bill, drawn from Rule 26 of the Federal Rules of Civil
Procedure, would require all parties to provide basic
information about their claimed interest in the adjudication
and about the expert witnesses they plan to have testify on
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their behalf very early in the proceedings. The provision of
this information at the beginning stages of an adjudication
will allow the court and the parties to more quickly frame the
issues to be addressed, and should reduce delays associated
with parties strategically waiting to produce discoverable
evidence.
2.Avoiding Undesirable Results
In addition to the procedural changes noted in Comment 2, this
bill would specify that in making its determination of rights to
groundwater, a court shall avoid an undesirable result as
defined in SGMA. In general, an undesirable result under SGMA
is one that results in any of the following: the chronic
lowering of groundwater levels; significant and unreasonable
reduction of groundwater storage; significant and unreasonable
seawater intrusion; significant and unreasonable degraded water
quality; significant and unreasonable land subsidence that
substantially interferes with surface land uses; or depletions
of interconnected surface water that have significant and
unreasonable adverse impacts on beneficial uses of surface
water. (Wat. Code Sec. 10721(w).)
This adjudicatory standard differs somewhat from that used in
common law groundwater adjudications. In a common law
adjudication, groundwater basins are managed according to the
concept of "safe yield," and overlying appropriators are limited
when total basin groundwater extraction exceeds safe yield,
leading to basin overdraft. The safe yield of a groundwater
basin is "the maximum amount of water that could be extracted
annually, year after year, without eventually depleting the
underground basin. Safe yield is generally calculated as the
net of inflows less subsurface and surface outflows." (City of
Santa Maria v. Adam (Cal.App.6th Dist. 2012), 211 Cal.App.4th
266, 279.)
The author states that this bill's focus on "sustainable yield"
is to ensure that any decision rendered through the procedures
established through the bill would be consistent with the goals
and objectives of SGMA, which include providing for the
sustainable management of groundwater basins. (Wat. Code Sec.
10720.1(a).)
3.Impact to Common Law Adjudication
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The California Supreme Court has held that "[i]t is settled that
the law of this state includes the common law as well as the
Constitution and the codes. The code establishes the law of
this state respecting the subjects to which it relates; but this
does not mean that there is no law with respect to such subjects
except that embodied in the code. Where the code is silent, the
common law governs." Rojo v. Kliger (1990) 52 Cal.3d 65, 74
(citations and internal quotation marks omitted).) Further,
"[t]here is a presumption a statute does not, by implication,
repeal the common law." (Id., citing 3 Sutherland, Statutory
Construction (4th ed. 1986) Sec. 61.03, p. 95 ["The repeal of a
common law rule may be evidenced by various other . . . aids of
statutory interpretation."].)
Through this bill, the author intends to establish a process to
adjudicate groundwater rights under SGMA that operates parallel
to California's existing common law groundwater adjudication
process. To ensure that this bill does not preclude parties
from using the existing common law adjudication process, the
author offers the following amendment:
Author's Amendment :
On page 8, between lines 23 and 24, insert "(c) Nothing
contained in this chapter shall be deemed to repeal or
preclude an action to determine rights to groundwater in
accordance with the common law."
4.Other Stakeholder Concerns
Clean Water Action and Community Water Center state, "we
appreciate the need to streamline the adjudication process and
are encouraged by the bill so far. However, it is imperative
that the rights of underrepresented and disadvantaged
communities . . . are adequately represented in the process."
To better represent these communities and enhance their ability
to participate in adjudications under this bill, these
stakeholders suggest that the bill be amended to allow for the
awarding of attorney's fees and costs to those beneficial users
who can prove significant financial hardship; to require notices
related to an adjudication to be translated in any and all
languages spoken by 10 percent or more of the population
residing in a basin, as well as any other languages as
appropriate; and to expand the bill's intervention by right
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provision to authorize intervention by the State Water Board and
local groundwater sustainability agencies.
Support : Clean Water Action; Community Water Center; Sierra
Club California
Opposition : African American Farmers of California; California
Citrus Mutual; California Cotton Ginners Association; California
Cotton Growers Association; California Dairies Inc.; California
Farm Bureau Federation; California Floral Council; California
Fresh Fruit Association; California Tomato Growers Association;
National Hmong American Farmers; Nisei Farmers League; Western
Agricultural Processors Association; Western Plant Health
Association
HISTORY
Source : Author
Related Pending Legislation : AB 1390 (Alejo, 2015) would
establish special procedures for adjudication actions filed in
superior court to determine the rights to extract groundwater
within a basin or store water from a basin. Among other things,
this bill would require each party to make specified initial
disclosures within 60 days after an initial case management
conference, and would authorize the court to appoint a special
master whose duties could include initiating a technical
committee to conduct joint factfinding regarding the basin.
This bill is pending in the Assembly Judiciary Committee.
Prior Legislation : None Known
Prior Vote : Senate Natural Resources and Water Committee (Ayes
6, Noes 2)
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