AB 1390
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CONCURRENCE IN SENATE AMENDMENTS
AB 1390 (Alejo, et al.)
As Amended September 4, 2015
Majority vote
ASSEMBLY:
76-0
(May 26, 2015)
SENATE:
40-0
(September 9, 2015)
Original Committee Reference: W., P., & W.
SUMMARY: Adds a new Chapter 7 to Title 10 of Part 2 of the Code of Civil Procedure (new
CCP provisions) that establish methods and procedures for comprehensive groundwater
adjudications.
The Senate amendments:
1) Require that comprehensive adjudications are conducted consistently with existing laws,
including the following:
a) Achievement of groundwater sustainability within the timeframes of the Sustainable
Groundwater Management Act (SGMA).
b) Federal laws regarding the determination of federal or tribal water rights, as applicable.
c) Existing law determining and establishing the priority of unexercised groundwater rights.
d) Other provisions of the Code of Civil Procedure to the extent they do not conflict with the
new CCP provisions.
2) Allow a waiver of court fees and costs for eligible applicants with insufficient economic
means, as specified, consistent with existing law.
3) Exempt specified groundwater rights actions that do not rise to the level of a comprehensive
adjudication.
4) Allow joinder of persons who claim rights to divert and use water from interconnected
surface water bodies or subterranean streams flowing through known and definite channels if
the court finds such joinder is necessary for the fair and effective determination of the
groundwater rights in a basin.
5) Allow a court to exempt parties extracting or diverting five acre-feet or less of water if those
parties do not wish to participate in the adjudication and exempting them would not have a
material effect on the groundwater rights of other parties.
6) Add specificity to how notification of the comprehensive adjudication shall be conducted and
broaden the list of persons who shall receive notice of the comprehensive adjudication to
include, for example, SGMA groundwater sustainability agencies (GSAs), persons from an
interested parties list established under SGMA, California Native American tribes, and
others, as specified.
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7) Require, within 15 days of the court order approving both the notice for the adjudication and
a form answer that can be used in response to the notice, that the plaintiff in the adjudication
request names and addresses of persons reporting groundwater extractions to the State Water
Resources Control Board (State Water Board) and any GSA in the basin.
8) Refine the entities allowed to intervene by adding the following that overlie a basin or a
portion of the basin: a GSA, a city, county or both. In accordance with existing law allows a
person to apply to intervene who has an interest in the matter in litigation, or in the success of
either of the parties, or an interest against both.
9) Disqualify the judge of a superior court of a county that overlies the basin or any portion of
the basin and allow the Judicial Council to assign a judge to preside in all proceedings for the
comprehensive adjudication.
10) Consolidate, if appropriate, any action against a GSA in the basin with the comprehensive
adjudication if the action concerns the adoption, substance, or implementation of the GSA's
groundwater sustainability plan (GSP) or the GSA's compliance with SGMA timelines.
11) Refine procedures that take in to account actual or proposed groundwater basin boundary
changes, either in response to boundary changes by the Department of Water Resources
(DWR) or by the court directing a party, as specified, to submit a request for a change to
DWR. Specifies DWR's basin boundary changes are subject to judicial review.
12) Refine service of process in a comprehensive adjudication.
13) Refine the initial disclosures that parties to an adjudication must share with one another to
establish the scope and basis of their claims to groundwater, including any use of expert
witnesses.
14) Refine the requirements for proposed stipulated judgments supported by more than 50% of
the parties who are groundwater extractors in the basin or use the basin for groundwater
storage and to be supported by groundwater extractors responsible for at least 75% of the
groundwater extracted in the basin during the preceding five years before the filing of the
complaint.
15) Make other technical and conforming changes.
16) Is operative only if SB 226 (Pavley) of the current legislative session is also enacted and
becomes effective.
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.
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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.
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.
FISCAL EFFECT: According to the Senate Appropriations Committee, there will be an
unknown reduction in costs to the General Fund for the courts.
COMMENTS: This bill creates a new chapter in the Code of Civil Procedure that will
streamline comprehensive groundwater adjudications. This bill has also been carefully crafted to
take into consideration how comprehensive adjudications will be conducted in basins subject to
SGMA. For that reason, this bill and SB 226 are contingent on the enactment of each other.
This bill sets out the general provisions for streamlining groundwater adjudications that would be
applicable to any basin. SB 226 relies on the new CCP provisions created by this bill but then
sets out 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.
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
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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 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 when Governor Brown signed SGMA last year he acknowledged the need
to develop a streamlined groundwater adjudication process. The author adds that this bill is
meant to address the time sinks that occur in current groundwater adjudications by clarifying the
processes that must be followed. The author states that streamlining adjudications will ease the
burden on the courts, provide the parties with the most efficient resolution possible, protect
individual rights, all while appropriately integrating adjudication actions with SGMA. Other
supporters state that this bill will address particular challenges that exist in groundwater
adjudications including determination of venue, identification of basin boundaries,
disqualification of judges, notice and service of parties, discovery and the ability of the parties to
reach settlement. Supporters add this bill will do that without impacting due process or changing
California water law.
Most former opposition to this bill was submitted when this bill and SB 226 were competing
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 procedural streamlining processes in this bill and the SGMA-specific language in SB 226.
Following the latest amendments to this bill many of the prior opponents have moved to support
positions.
No opposition to this bill was received. However, following the latest set of amendments,
concerns were raised by parties that questioned whether this bill could impermissibly affect
unexercised water rights (future claims by people who own land overlying the basin but who do
not currently pump groundwater) or inappropriately bring surface water rights into the
groundwater arena. However, such concerns ignore that current law already sets forth the ability
of the court to determine water right priorities; and, that where groundwater and surface water
are interconnected, the "common source" doctrine applies, integrating water rights and applying
priorities without regard to whether the diversion is from surface or groundwater. The author
states that the reason for including provisions acknowledging existing law is to remove some of
the unnecessary uncertainty that has been a major obstacle to a speedy and fair resolution of
groundwater claims.
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In particular, concerns were raised that this bill states a court may consider applying the
principles established in the 1979 California Supreme Court case In re Waters of Long Valley
Creek Stream System (Long Valley). That is existing law and this bill does not change it. Long
Valley is important to reference however as it established a precedent that all water rights,
including unexercised water rights, could be given a priority based on the facts of the situation
and that addressing all rights would bring clarity to water rights holders and foster more
beneficial and efficient uses of the State's waters as mandated by the California Constitution. In
addition, the court reasoned that addressing all water rights could eliminate the uncertainty that
leads to recurrent, costly, and piecemeal litigation. This bill includes detailed procedures to
ensure that a comprehensive adjudication is truly comprehensive, with adequate notice and due
process protections for all groundwater extractors and overlying landowners. With those
procedural protections, the application of Long Valley could help provide water rights holders the
security that the water rights recognized in the decree will be protected, instead of losing out to
claims that were not included or quantified.
In addition to SB 226, there are two other major bills this session concerning groundwater. SB
13 (Pavley), Chapter 255, Statutes of 2015, makes several technical cleanup changes to SGMA
and its related statutory sections. 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: 0002360