BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 226|
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THIRD READING
Bill No: SB 226
Author: Pavley (D)
Amended: 5/5/15
Vote: 21
SENATE NATURAL RES. & WATER COMMITTEE: 6-2, 4/14/15
AYES: Pavley, Allen, Hueso, Jackson, Monning, Wolk
NOES: Stone, Fuller
NO VOTE RECORDED: Hertzberg
SENATE JUDICIARY COMMITTEE: 5-1, 4/28/15
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Anderson
NO VOTE RECORDED: Moorlach
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
SUBJECT: Sustainable Groundwater Management Act: groundwater
rights
SOURCE: Author
DIGEST: This bill establishes special procedures for courts use
in determining rights to groundwater under the Sustainable
Groundwater Management Act (SGMA). This bill specifies
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.
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ANALYSIS: Last session the Legislature enacted the SGMA (SB
1168, Pavley, Chapter 346, Statutes of 2014). 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.
This bill:
1)Adds a new Chapter 12 to SGMA titled DETERMINATION OF RIGHTS
TO GROUNDWATER. Specifically:
a) Finds and declares that it establishes a timely and
comprehensive method for determining rights to groundwater.
b) Provides 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.
c) Requires the process for determining rights to
groundwater to be available to any court of competent
jurisdiction.
d) Deems 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.
e) Directs a court, in making its determination of rights
to groundwater, to avoid undesirable results as defined in
SGMA.
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f) Provides that it applies to Indian tribes and the
federal government to the extent authorized by federal and
tribal law.
g) Requires the boundaries of a basin to be as identified
in Bulletin 118, unless other basin boundaries are
established pursuant to SGMA.
h) Authorizes 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.
i) Specifies service and notice procedures.
j) Requires a party to provide specified initial
disclosures to the other parties, including, among other
disclosures, information relating to expert witnesses.
2) Makes other conforming and technical changes to the Water
Code.
Background
Among other things, the 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.
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An adjudication of groundwater rights is initiated by a lawsuit.
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
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, 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.
Comments
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1)Everyone Agrees The Current Process Needs Improvement. At the
Senate Natural Resources and Water Committee 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."
2)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.
3)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.
4)Protection Of the 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
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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 authorizes 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 noted in the Senate Judiciary Committee analysis of this
bill, 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.
Related Legislation
AB 1390 (Alejo, 2015) streamline the procedures used in a legal
action to obtain a basin-wide adjudication of groundwater rights
by adding a new chapter to the Code of Civil Procedure.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
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SUPPORT: (Verified 5/19/15)
All Outdoors
American River Conservancy
American River Touring Association Inc.
American Whitewater
California Canoe and Kayak
California Outdoors
California Sportfishing Protection Alliance
California Water Impact Network
Clean Water Action
Community Water Center
Delta Kayak Adventures
Foothill Conservancy
Friends of the Eel River
Friends of the River
Friends of the San Francisco Estuary
Merced River Conservation Committee
North Coast Rivers Alliance
Northern California Council of the International Federation of
Fly Fishers
Restore Hetch Hetchy
Restore the Delta
Rivers for Change
Rose Foundation for Communities and the Environment
Sacramento River Preservation Trust
Save the American River Association
Sierra Club California
Sierra Nevada Alliance
Smith River Alliance
South Yuba River Citizens League
Tuolumne River Trust
Winnemem Wintu Tribe
OPPOSITION: (Verified 5/19/15)
African American Farmers of California
California Citrus Mutual
California Cotton Ginners Association
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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
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
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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 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."
Prepared by:Dennis O'Connor / N.R. & W. / (916) 651-4116
5/21/15 11:20:32
**** END ****
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