BILL ANALYSIS Ó
SB 226
Page 1
SENATE THIRD READING
SB
226 (Pavley)
As Amended September 1, 2015
Majority vote
SENATE VOTE: 23-14
------------------------------------------------------------------
|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Water |8-5 |Levine, Dababneh, |Bigelow, Dahle, |
| | |Dodd, Cristina |Beth Gaines, |
| | |Garcia, Gomez, Lopez, |Harper, Mathis |
| | |Rendon, Williams | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |7-3 |Mark Stone, Alejo, |Wagner, Gallagher, |
| | |Chau, Chiu, Cristina |Maienschein |
| | |Garcia, Holden, | |
| | |O'Donnell | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |12-0 |Gomez, Bloom, Bonta, | |
| | |Calderon, Nazarian, | |
| | |Eggman, Eduardo | |
| | |Garcia, Holden, | |
| | |Quirk, Rendon, Weber, | |
SB 226
Page 2
| | |Wood | |
| | | | |
------------------------------------------------------------------
SUMMARY: Adds a new chapter to the Sustainable Groundwater
Management Act (SGMA) that integrates and streamlines the
groundwater adjudication process for groundwater basins that are
subject to SGMA. Specifically, this bill:
1)Clarifies that the state may intervene as a matter of right in
any suit brought in any court for determination of rights to
water. Specifies that this does not change substantive law.
2)Expands SGMA's findings to include that SGMA is to provide a
more efficient and cost-effective groundwater adjudication
process that protects water rights, ensures due process,
prevents unnecessary delay, and furthers the SGMA's
objectives.
3)Allows that water rights may be determined in an adjudication
action pursuant to the procedural streamlining processes that
would be established by AB 1390 (Alejo) of the current
legislative session, which would add a new Chapter 7 to the
Code of Civil Procedure.
4)Expands the entities who may file a request with Department of
Water Resources (DWR) to revise groundwater basin boundaries
to include an entity directed by the court in an adjudication
action.
5)Adds a new Chapter 12 to SGMA titled Determination of Rights
to Groundwater and states that except in that Chapter,
adjudication actions shall be conducted in accordance with
Chapter 7 of the Code of Civil Procedure.
SB 226
Page 3
6)Directs the court, in an adjudication of a basin subject to
SGMA, to manage the proceeding in a manner that minimizes
interference with the timely completion and implementation of
a groundwater sustainability plan (GSP), avoids redundancy and
unnecessary costs in the development of technical information
and a physical solution, and is consistent with the attainment
of sustainable groundwater management with the timeframes
established by SGMA.
7)Provides that State enforcement under SGMA shall not apply to
a court-approved stipulated groundwater adjudication judgment
if the stipulated judgment is submitted to DWR and DWR
determines it is a SGMA GSP equivalent for the basin. Allows
the same court that is handling the adjudication to review
DWR's determination and treats such review as a coordinated
legal action.
8)Allows the court, after notice and, if necessary, an
evidentiary hearing, to amend a judgment in response to DWR's
assessment, including incorporating corrective actions DWR has
identified to make the judgment consistent with SGMA and
achieve the sustainability goal.
9)Prohibits a court from approving an entry of judgment in an
adjudication action of a basin required to have a SGMA GSP
unless the court first finds that the judgment will not
substantially impair the ability of a groundwater
sustainability agency (GSA), the State Water Resources Control
Board (State Water Board), or DWR, to comply with SGMA and
achieve sustainable groundwater management.
10)Is operative only if AB 1390 is also enacted and becomes
effective.
SB 226
Page 4
11)Includes conforming changes to avoid conflicting with the
technical corrections to SGMA contained in SB 13 (Pavley) of
the current legislative session.
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 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)Allows a local agency to file a request with DWR to revise
groundwater basin boundaries.
5)Requires, by June 30 2017, that local agencies form one or
more GSAs in all high and medium priority basins subject to
SGMA for the purpose of developing and adopting GSPs or submit
SB 226
Page 5
existing groundwater management plans that DWR determines are
functionally equivalent to SGMA GSPs.
6)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.
7)Requires, by January 31, 2022, that GSAs in all other high and
medium priority basins subject to SGMA develop and adopt GSPs.
8)Allows the 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 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 Assembly Appropriations
Committee, there are unknown costs, potentially in the hundreds
of thousands of dollars, for state agency intervention in water
rights suits.
COMMENTS: This bill addresses the standards and processes for
streamlined groundwater adjudications in groundwater basins that
are subject to SGMA. This bill references the general
procedures for streamlining groundwater adjudications that are
established by AB 1390 and which would be applicable to any
basin. However, this bill also sets out, in a new Chapter to
SGMA, additional standards and procedures for the court to apply
in basins that are subject to SGMA in order to ensure minimal
interference with GSP development and maintain consistency with
SGMA objectives.
SB 226
Page 6
The adoption of SGMA last year was a historic effort that took
effect on January 1, 2015. Many local agencies are now in the
process of creating their GSAs in order to develop and implement
GSPs that will achieve sustainable management of their
groundwater basins within a twenty year time frame. During
SGMA's development in 2014 many stakeholders voiced a desire to
streamline groundwater adjudications as an additional tool to
help manage groundwater in California. Both Senator Pavley, one
of the original SGMA authors, and Governor Jerry Brown when he
signed SGMA, committed to working on streamlining groundwater
adjudications in 2015.
It is undisputable that groundwater adjudications are lengthy,
complicated, and expensive. An adjudication is when multiple
parties who withdraw water from the same aquifer ask a court to
hear competing arguments and better define the rights that
various entities have to use the groundwater resources. Through
the adjudication the court can assign specific water rights to
water users and can compel the cooperation of those who might
otherwise refuse to limit their groundwater pumping. Even after
a decree is entered, the court retains continuing jurisdiction
and usually appoints a watermaster to ensure that pumping
conforms to the limits defined by the adjudication.
Because there is no state mandate to report groundwater
withdrawals it is difficult to determine who should be legally
noticed of the court action. In addition there are usually
technical disagreements among parties, including as to the
historic groundwater use which could affect the scope of one's
rights. The Antelope Valley groundwater basin in Los Angeles
and Kern Counties is illustrative: The adjudication has been
sitting in the trial court for 15 years; 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 over 9,000 docket entries so far; and, more
SB 226
Page 7
than 100 lawyers involved. Similarly, the Santa Maria
groundwater basin in Santa Barbara and San Luis Obispo counties
took 15 years, involved thousands of parties, cost tens of
millions of dollars, and still might not be completely resolved.
The author states that, under current law, groundwater rights
adjudications take an extraordinarily long time and are
extraordinarily expensive. The author notes that as she was
working last year to enact SGMA it became clear that: there will
almost certainly be more such groundwater adjudications; and, it
will be difficult, if not impossible, for some basins to comply
with the requirements of SGMA unless the adjudication process is
streamlined. The author advises that this bill, along with AB
1390, tackle head on the various time sinks witnesses identified
at the Senate Natural Resources and Water Committee information
hearing last November on groundwater adjudication. The author
explains the differences between this bill and AB 1390, which
are contingently enacted by advising that this bill contains all
necessary changes to SGMA, including establishing how
adjudications in high- and medium-priority basins would be
accommodated within SGMA without changing any of the policies
inherent within SGMA while AB 1390 includes all process and
procedural changes necessary to accelerate adjudications without
changing groundwater rights law. The author concludes that this
bill and AB 1390, together, will reduce needless delays in
settling groundwater rights disputes while still protecting due
process rights.
It is unclear whether opposition to this bill remains. Most
former opposition to this bill was submitted when this bill and
AB 1390 were competing measures and came from entities and
organizations that supported AB 1390 and felt that it was
preferable. Those opponents also felt that the Code of Civil
Procedure was the appropriate place for procedural streamlining
measures. Since that time the authors and many of the
supporters and opponents of both bills have been working
together to develop one integrated, contingently-enacted
SB 226
Page 8
proposal that places the SGMA-specific language in this bill and
the procedural streamlining processes in AB 1390, which amends
the Code of Civil Procedure.
In addition to AB 1390, there are two bills pending in the
Legislature that make changes to SGMA. SB 13, referenced above,
makes several technical cleanup changes to SGMA and its related
statutory sections. SB 13 is on the Governor's desk awaiting
action. AB 617 (Perea) of the current legislative session
amends SGMA to allow public private partnerships, provide an
appeals process to the State Water Board for public agencies if
state entities agencies are not working cooperatively to
implement the GSP, and to allow groundwater sustainability
planning to be incorporated into an Integrated Regional Water
Management Plan. AB 617 is pending in the Senate.
Analysis Prepared by:
Tina Leahy / W., P., & W. / (916) 319-2096 FN:
0001880