BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 226|
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UNFINISHED BUSINESS
Bill No: SB 226
Author: Pavley (D)
Amended: 9/3/15
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
SENATE FLOOR: 23-14, 5/26/15
AYES: Allen, Beall, Block, De León, Hancock, Hernandez,
Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu,
McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Roth,
Wieckowski, Wolk
NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines,
Huff, Moorlach, Morrell, Nguyen, Nielsen, Runner, Stone, Vidak
NO VOTE RECORDED: Galgiani, Hall
ASSEMBLY FLOOR: 74-3, 9/10/15 - See last page for vote
SUBJECT: Sustainable Groundwater Management Act: groundwater
adjudication
SOURCE: Author
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Page 2
DIGEST: This bill 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.
Assembly Amendments delete provisions regarding the judicial
process for determining groundwater rights and added provisions
regarding how the state enforcement provisions of SGMA apply to
groundwater adjudications.
ANALYSIS:
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)Authorizes a court to order a reference to the State Water
Resources Control Board (state board), as referee, of any and
all issues involved in a suit brought in any court of
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Page 3
competent jurisdiction in this state for determination of
rights to water.
5)Requires all groundwater basins designated as high- or
medium-priority basins by the Department of Water Resources
(DWR) that are designated as subject to critical overdraft
conditions to be managed under a groundwater sustainability
plan (GSP) or coordinated GSPs by January 31, 2020.
6)Requires all other groundwater basins designated as high- or
medium-priority basins to be managed under a GSP or
coordinated GSP by January 31, 2022.
7)Authorizes a local agency to request that the DWR revise the
boundaries of a basin.
8)Authorizes state board to designate certain high- and
medium-priority basins as a probationary basin if certain
criteria are met.
9)Authorizes the state board to develop an interim plan for a
probationary basin if the state board determines that a local
agency has not remedied a deficiency that resulted in
designating the basin as a probationary basin within a certain
timeframe.
This bill:
1)Authorizes the state to intervene in a comprehensive
adjudication conducted as specified in AB 1390 (Alejo) of the
2015-16 Regular Session.
2)Requires a court, in an adjudication action to determine
rights to groundwater in a basin that is required to have a
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GSP under SGMA, to manage the proceedings in a manner that:
a) Minimizes interference with the timely completion and
implementation of a GSP,
b) Avoids redundancy and unnecessary costs in the
development of technical information and a physical
solution, and
c) Is consistent with the attainment of sustainable
groundwater management within the timeframes established by
SGMA.
3)Authorizes an entity, when directed by the court in an
adjudication action to file such a request, to request that
the DWR revise the boundaries of a basin.
4)Prohibits the provisions relating to probationary basins and
interim plans from applying to a judgment approved by the
court if:
a) The judgment is submitted to DWR for evaluation and
assessment, and
b) DWR determines that the judgment satisfies the
objectives of SGMA for the basin.
5)Requires DWR to submit to the court assessments and any
recommended corrective actions for these judgments and would
require the court to determine whether to amend the judgment
to adopt DWR's recommended corrective actions.
6)Prohibits a court from approving entry of judgment in an
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adjudication action for a basin required to have a GSP under
SGMA unless the court finds that the judgment will not
substantially impair the ability of a groundwater
sustainability agency, the board, or the department to comply
with SGMA and to achieve sustainable groundwater management.
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.
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.
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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
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."
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Related Legislation
SB 226 and AB 1390 (Alejo) constitute a single adjudication
proposal split into two contingently enacted bills. Briefly:
1)SB 226 includes all the necessary changes to SGMA. This
including how adjudications in high- and medium-priority
basins would be accommodated within SGMA without changing any
of the policies inherent within SGMA.
2)AB 1390 includes all process and procedural changes necessary
to accelerate adjudications without changing groundwater
rights law.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Assembly Appropriations Committee:
Unknown costs, potentially in the hundreds of thousands of
dollars, for state agency intervention in water rights suits.
SUPPORT: (Verified 9/10/15)
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
California Farm Bureau Federation
California Grain and Feed Association
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California League of Conservation Voters
California Pear Growers Association
California Seed Association
Clean Water Action California
Community Water Center
Leadership Counsel for Justice & Accountability
Pacific Egg and Poultry Association
Sierra Club California
The Nature Conservancy
Western Growers Association
OPPOSITION: (Verified 9/10/15)
None received
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 and AB 1390 tackle head on the various time sinks
witnesses identified at this committee's hearing last November
on groundwater adjudication. Briefly:
1)SB 226 includes all the necessary changes to SGMA. This
including how adjudications in high- and medium-priority
basins would be accommodated within SGMA without changing any
of the policies inherent within SGMA.
2)AB 1390 includes all process and procedural changes necessary
to accelerate adjudications without changing groundwater
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rights law.
"With these changes, SB 226 will reduce needless delays while
still protecting due process rights."
ASSEMBLY FLOOR: 74-3, 9/10/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bloom, Bonilla,
Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez,
Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman,
Frazier, Beth Gaines, Cristina Garcia, Eduardo Garcia, Gatto,
Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper,
Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim,
Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis,
Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte,
O'Donnell, Olsen, Perea, Quirk, Rendon, Ridley-Thomas,
Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond,
Ting, Wagner, Weber, Wilk, Williams, Wood, Atkins
NOES: Brough, Dahle, Gallagher
NO VOTE RECORDED: Bigelow, Patterson, Waldron
Prepared by: Dennis O'Connor /
N.R. & W. / (916) 651-4116
9/10/15 23:22:53
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