BILL ANALYSIS Ó
SB 226
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Date of Hearing: June 30, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
SB
226 (Pavley) - As Amended May 5, 2015
SENATE VOTE: 23-14
SUBJECT: Sustainable Groundwater Management Act: groundwater
rights.
SUMMARY: Streamlines groundwater adjudications by adding special
procedures under, and consistent with, the Sustainable
Groundwater Management Act (SGMA). Specifically, this bill:
1)Adds a new Chapter 12 to SGMA titled Determination of Rights to
Groundwater.
2)Finds and declares that it establishes a timely and
comprehensive method for determining rights to groundwater.
3)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.
4)Requires the process for determining rights to groundwater to
be available to any court of competent jurisdiction.
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5)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.
6)Directs a court, in making its determination of rights to
groundwater, to avoid undesirable results as defined in SGMA.
7)Provides that it applies to Indian tribes and the federal
government to the extent authorized by federal and tribal law.
8)Requires the boundaries of a basin to be as identified in
Bulletin 118, unless other basin boundaries are established
pursuant to SGMA.
9)Authorizes the Department of Water Resources (DWR) and the
California Department of Fish and Wildlife to intervene in an
action or proceeding if they claim an interest relating to the
action or proceeding.
10)Specifies service and notice procedures.
11)Requires a party to provide specified initial disclosures to
the other parties, including, among other disclosures,
information relating to expert witnesses, and sets time
deadlines for the initial disclosures and expert witness
information to be provided.
12)Makes other conforming and technical changes to the Water
Code.
EXISTING LAW:
1)Allows a party with rights to a groundwater basin to initiate a
lawsuit so the court can decide the groundwater rights of all
parties overlying the basin and others who may export water out
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the basin.
2)Empowers the court to decide who the extractors are, how much
groundwater those well owners can extract, and who will ensure
that the basin is managed according to the court's decree
(generally called a "watermaster"), including periodically
reporting to the court.
3)Requires DWR to prioritize California's groundwater basins in
order to focus state resources. The basins are prioritized as
either high, medium, low, or very low based on a combination of
factors including, but not limited to, overlying population,
level of dependence for urban and agricultural water supplies,
and impacts on the groundwater from overdraft, subsidence,
saline water intrusion, and water quality degradation.
4)Requires, by June 30 2017, that local agencies form one or more
Groundwater Sustainability Agencies (GSAs) in all high and
medium priority basins subject to the Sustainable Groundwater
Management Act (SGMA) for the purpose of developing and
adopting Groundwater Sustainability Plans (GSPs) or submit
existing groundwater management plans that DWR determines are
functionally equivalent to SGMA GSPs.
5)Requires, by January 31, 2020, that GSAs in all high and medium
priority basins subject to a chronic condition of overdraft
develop and adopt GSPs that provide for the sustainable
management of the groundwater basin, as defined.
6)Requires, by January 31, 2022, that GSAs in all other high and
medium priority basins subject to SGMA develop and adopt GSPs.
7)Allows the State Water Resources Control Board (State Water
Board) to impose an interim plan for management of a
groundwater basin if no GSA is formed by the deadline, no GSP
is adopted by the appropriate deadline, or a GSP is adopted
which DWR deems insufficient and where the basin is in a
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chronic condition of overdraft or in a condition where
groundwater pumping is causing a significant depletion of
interconnected surface waters.
FISCAL EFFECT: According to the Senate Appropriations Committee,
pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS: This bill tries to address some of the delays in
groundwater adjudications by creating standardized forms,
processes, requirements, and timelines but does them in the
context of amending, and maintaining consistency with, SGMA.
This bill is dual referred to the Assembly Committee on
Judiciary. For that reason, this analysis only covers this bill's
general and SGMA-related ramifications for California groundwater
management.
1)Author's statement: The author states that under current law,
groundwater rights adjudications take an extraordinarily long
time and are extraordinarily expensive. The author adds that
as she was working last year to enact SGMA it became clear that
there will almost certainly be more adjudications and that 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." The author adds that this bill "tackles
head-on the various time sinks" that witnesses identified at
her informational hearing last November on groundwater
adjudication regarding basin boundaries, notice and service,
discovery, and expert witnesses. The author concludes that
with these changes, this bill "will reduce needless delays
while still protecting due process rights."
2)Background: The adoption of SGMA last year was a historic
effort that took effect on January 1, 2015. However, even as
SGMA was being developed many stakeholders voiced a desire to
include language that would streamline groundwater
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adjudications as an additional tool. At one point AB 1739
(Dickinson), one of the three bills that ultimately formed
SGMA, included a placeholder for language to streamline
groundwater adjudications but the subject ultimately proved too
complex to resolve in time for inclusion. Nevertheless,
Governor Jerry Brown in his September 16, 2014 signing message
for SGMA stated that not only would he work closely with all
affected groups to ensure that SGMA was fairly implemented but
that further, he would "submit for legislative consideration
during the next session a proposal to streamline judicial
adjudications of groundwater rights."
It is undisputable that adjudications are complicated. As the
Water Education Foundation, a nonprofit nonpartisan educational
entity states succinctly in its definition of adjudication:
"When multiple parties withdraw water from the same aquifer,
groundwater pumpers can ask the court to adjudicate, or hear
arguments for and against, to better define the rights that
various entities have to use groundwater resources. This is
known as groundwater adjudication. Through adjudication, the
courts can assign specific water rights to water users and can
compel the cooperation of those who might otherwise refuse to
limit their pumping of groundwater. Watermasters are typically
appointed by the court to ensure that pumping conforms to the
limits defined by the adjudication."
Determining who has groundwater rights that could be affected
by an adjudication and the scope of those rights is difficult
as there are no state law requirements to report groundwater
withdrawals. State law gives every overlying property owner a
potential right in an unadjudicated groundwater basin. So
noticing all of those parties that there will be an
adjudication action can be lengthy and expensive. There are
also technical disagreements among parties, including as to the
historic groundwater use which could affect the scope of one's
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rights.
On November 20, 2014, the author of this bill, as Chair of the
Senate Natural Resources and Water Committee, held an
information hearing entitled Resolving Disputes Regarding
Groundwater Rights: Why Does It Take So Long and What Might Be
Done to Accelerate the Process? In that hearing expert
observations from Third District Court of Appeals Judge Ronald
B. Robie and others were presented that raised many of the
issues discussed above. The Antelope Valley groundwater
adjudication, referenced at the hearing, provided an example.
As Fiona Smith reports in the Daily Journal article State
Looking to Speed Groundwater Lawsuits (October 29, 2014), the
Antelope Valley groundwater basin adjudication "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 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." Ms. Smith
also references the Santa Maria groundwater basin, in Santa
Barbara and San Luis Obispo counties, as an adjudication that
"took 15 years to work through the trial and appellate courts,
and it is still not completely resolved. That case involved
thousands of parties and has cost tens of millions of dollars,
said Henry S. Weinstock, a partner at Nossaman LLP who worked
on the case."
3)Dual referral: This bill is double-referred and will next go
to the Assembly Judiciary Committee.
4)Prior and related Legislation: The three-bill package of
legislation forming SGMA and related statutes is:
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SB 1168 (Pavley), Chapter 346, Statutes of 2014; AB 1739
(Dickinson) Chapter 347, Statutes of 2014; and, SB 1319
(Pavley), Chapter 348, Statutes of 2014.
This is one of 7 currently-active bills in the Legislature
proposing changes to SGMA and its related statutes:
AB 1390 (Alejo) is the most directly-related bill. Like this
bill, AB 1390 creates a streamlined process for groundwater
adjudications but on a separate track that optional allows SGMA
plans to be considered or incorporated.
AB 453 (Bigelow) allows groundwater management plans adopted
prior to SGMA to be amended and extended; allows a local agency
to impose fees and collect groundwater extraction information
for developing and adopting a revised groundwater management
plan; and, prohibits Water Rights Fund fees from being used for
SGMA enforcement.
AB 617 (Perea) makes substantive changes to SGMA including, but
not limited to, allowing mutual water companies to join GSA's
using Joint Powers of Agreement.
AB 938 (Salas) specifies that when a basin is reprioritized to
high or medium and thus becomes subject to SGMA then extended
SGMA deadlines apply to a combination of agencies (plural) and
not just an agency (singular).
AB 939 (Salas) changes the time period for providing technical
data upon which a SGMA fee is based from 10 days before the
meeting to adopt the fee to 20 days before such meeting.
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AB 1242 (Gray) requires the State Water Board, when setting
in-stream flows, to take into account any groundwater
management plan, including under SGMA, and requires the State
Water Board to identify projects for fish recovery that may be
undertaken in lieu of instream flows.
SB 13 (Pavley) makes several technical cleanup changes to SGMA
and related statutory sections.
5)Supporting arguments: Supporters state that this bill creates
a streamlined process for judicial adjudications of groundwater
basins in a manner that protects individual rights, ensures the
prevention of undesirable results consistent with SGMA, and
allows agency intervention where the environment may
necessitate. Supporters add that" until the implementation of
plans under SGMA, individuals with their groundwater rights
being infringed upon do not have easy access to relief through
the courts. Final decisions only deal with water rights,
ignoring the numerous other problems that can occur within a
groundwater basin that SGMA addresses." Supporters add that
this bill helps ease the burden on individuals and the courts
by standardizing and expanding service of process requirements,
and allowing DWR and DFW to intervene in an adjudication,
should their interests need to be addressed. Supporters
conclude that, finally, "any decision a court issues will
attempt to avoid an undesirable result as defined under SGMA"
which "creates a better process for adjudication of groundwater
rights holders and the environment."
6)Opposing arguments: Opponents state that they are sponsoring
AB 1390, a comprehensive bill to address streamlining
groundwater adjudications by "adding a new chapter to the Code
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of Civil Procedure making improvements to the judicial
proceedings of comprehensive adjudications of groundwater
rights in a basin." Opponents state that AB 1390 will reduce
the burden of groundwater adjudications on both the courts and
claimants without altering the law of groundwater rights and
without disruption to the [SGMA] planning process. Opponents
add that while they appreciate this author's "interest in the
issue of adjudication we respectfully prefer the approach
offered in AB 1390." Other opponents support "aligning
streamlined adjudications process with SGMA objectives" however
they do not support this bill's approach of including
streamlined groundwater adjudications within SGMA as SGMA is a
law that "already includes significant groundwater reforms"
focused on improving the sustainability and reliability of
California's groundwater basins. Opponents therefore, believe
SGMA "should be given time to be implemented and that it is
premature to make significant policy changes to the Act at this
time."
REGISTERED SUPPORT / OPPOSITION:
Support
All Outdoors
American River Conservancy
American River Touring Association Inc. (ARTA)
American Whitewater
California Canoe and Kayak
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California Outdoors
California Sportfishing Protection Alliance
California Water Impact Network (C-WIN)
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
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Northern California Council of the International Federation of
Fly Fishers
Planning and Conservation League
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
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The Nature Conservancy
Tuolumne River Trust
Winnemem Wintu Tribe
Opposition
African American Farmers of California
Agricultural Council of California
Almond Hullers and Processors Association
Association of California Egg Farmers
California Association of Wheat Growers
California Bean Shippers Association
California Cattlemen's Association
California Chamber of Commerce
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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 Grain and Feed Association
California Pear Growers Association
California Seed Association
California Tomato Growers Association
Kings River Conservation District
Kings River Water Association
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National Hmong American Farmers
Nisei Farmers League
Pacific Egg and Poultry Association
Southwest California Legislative Council
Western Agricultural Processors Association
Western Growers Association
Western Plant Health Association
Analysis Prepared by:Tina Leahy / W., P., & W. / (916)
319-2096