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