BILL ANALYSIS Ó
SB 226
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SENATE THIRD READING
SB
226 (Pavley)
As Amended September 3, 2015
Majority vote
SENATE VOTE: 23-14
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+-----------------------+---------------------|
|Water |8-5 |Levine, Dababneh, |Bigelow, Dahle, Beth |
| | |Dodd, Cristina Garcia, |Gaines, Harper, |
| | |Gomez, Lopez, Rendon, |Mathis |
| | |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, | |
| | | | |
| | | | |
SB 226
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| | |Eduardo Garcia, | |
| | |Holden, Quirk, Rendon, | |
| | |Weber, Wood | |
| | | | |
| | | | |
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SUMMARY: Integrates and streamlines the groundwater
adjudication process for groundwater basins that are subject to
the Sustainable Groundwater Management Act (SGMA), primarily by
adding a new chapter to SGMA. Specifically, this bill:
1)Acknowledges the state's current ability to intervene in a
comprehensive adjudication, but does not expand the authority
of any state agency.
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 Act's objectives.
3)Recognizes 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 Title 10 of Part 2 of the Code of Civil Procedure (new CCP
provisions).
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 to file the request.
5)Adds a new Chapter 12 to SGMA titled Determination of Rights
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to Groundwater and states that except as provided in that
Chapter, adjudication actions shall be conducted in accordance
with the new CCP provisions.
6)Directs the court, in an adjudication of a basin required to
have a plan under 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 groundwater adjudication judgment if the
judgment is submitted to DWR and DWR determines it satisfies
the objectives of SGMA 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.
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10)Is operative only if AB 1390 is also enacted and becomes
effective.
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)Expresses the state's regulatory and supervisory authority
over all waters in the state, surface and underground, by
declaring that all waters in the state are property of the
people of the state, while recognizing that rights may be
acquired to the use of water.
2)Establishes background principles that apply to all water
diversion and use, including the Constitutional prohibition
against waste, unreasonable use, unreasonable method of
diversion or unreasonable method of use.
3)Allows a party with rights to extract and use water in 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.
4)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.
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5)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.
6)Allows a local agency to file a request with DWR to revise
groundwater basin boundaries.
7)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
existing groundwater management plans or adjudications that
DWR determines are functionally equivalent to SGMA GSPs.
8)Requires, by January 31, 2020, that GSAs in all critically
overdrafted high and medium priority basins develop and adopt
GSPs that provide for the sustainable management of the
groundwater basin, as defined.
9)Requires, by January 31, 2022, that GSAs in all other high and
medium priority basins subject to SGMA develop and adopt GSPs.
10)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.
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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 new CCP
provisions 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.
The adoption of SGMA last year was a historic effort. SGMA 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
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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
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 are extraordinarily time-consuming and 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 SGMA's requirements
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 subject to SGMA
would be accommodated without changing any of the policies
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inherent within SGMA; and, AB 1390 includes all process and
procedural changes necessary to accelerate adjudications without
changing substantive 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.
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
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. Following the latest amendments to
this bill, 20 out of the 28 former opponents switched to a
position of support and it is unclear whether opposition to this
bill still remains.
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.
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Analysis Prepared by:
Tina Leahy / W., P., & W. / (916) 319-2096 FN:
0002266