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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.
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.

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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) 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 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 SGMArelated 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

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2) 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.”
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 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 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

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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:
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.
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.

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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 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
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
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
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
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
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
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Analysis Prepared by : Tina Leahy / W., P., & W. / (916) 319-2096
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