AB 1390
Page 1
ASSEMBLY THIRD READING
AB 1390 (Alejo and Perea)
As Amended May 18, 2015
Majority vote
Committee
Water
Votes
14-0
Ayes
Levine, Bigelow, Dahle,
Dodd, Beth Gaines,
Cristina Garcia, Gomez, Gray,
Harper, Lopez, Medina,
Rendon, Ridley-Thomas,
Williams
Judiciary
10-0
Mark Stone, Wagner, Alejo,
Chau, Chiu, Gallagher,
Cristina Garcia, Holden,
Maienschein, O'Donnell
Appropriations
17-0
Gomez, Bigelow, Bloom,
Bonta, Calderon, Chang, Daly,
Eggman, Gallagher,
Eduardo Garcia, Holden,
Jones, Quirk, Rendon,
Wagner, Weber, Wood
Noes
SUMMARY: Streamlines legal processes used to assign water rights in a groundwater basin.
Specifically, this bill:
1) Creates a new chapter in the Code of Civil Procedure related to groundwater rights.
2) Finds and declares the benefits of a streamlined groundwater adjudication process.
3) Defines various terms.
4) Establishes special procedures that govern all groundwater adjudication actions, with exceptions,
and allows a court to:
a) Determine all rights in a groundwater basin;
b) Declare the priority, amount, purpose of use, extraction location, and place of use of the
groundwater, together with other relief or a "physical solution" to conflicts.
c) Expedite resolution, including encouraging the parties to use a Groundwater Sustainability
Plan (GSP) developed pursuant to the Sustainable Groundwater Management Act (SGMA)
as the basis of a stipulated judgment setting forth a physical solution for basin management.
5) Specifies that a claimant shall name as defendants in an adjudication action: counties, special
districts, public water systems, and small water systems.
6) Specifies duties of a plaintiff (the party bringing the suit) to serve (meaning provide notice of the
action to) all parties with a potential interest, including appearing at any relevant boards of
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supervisors and mailing notices of the action, as specified, to all landowners in the basin as an
enclosure with their next property tax statement and including with that notice a "form answer"
for parties wishing to participate.
7) Allows any party owning land overlying the basin to become a party.
8) Allows a court to hold a preliminary hearing to determine if the case should proceed.
9) Requires the court, upon motion of any party, to transfer the adjudication to a neutral county if a
local agency is a party.
10) Limits judge disqualifications for the adjudication.
11) Defines groundwater adjudications as complex civil matters.
12) Encourages electronic service of pleadings.
13) Allows the court to convene a case management conference, as specified, and take actions to
organize the case including dividing it into discrete phases.
14) Specifies that the initial basin boundaries for purposes of the groundwater adjudication shall be
the same as those found in the Department of Water Resources publication Bulletin 118, but
allows the court to adjust the boundaries.
15) Requires that parties initially and expeditiously disclose specifics regarding their preceding 10
years of groundwater use; any other relevant, associated, water use; and, the contact information
of persons who could verify. Encourages information in electronic form.
16) Allows the court to require any supplemental disclosures.
17) Specifies requirements for expert witness identification, qualifications, subject matter, and
reporting, including disclosing amount of compensation.
18) Allows a court to impose lesser requirements on expert witnesses used for impeachment or
rebuttal.
19) Allows a court to require witnesses submit written testimony and species certain content and
timing for written testimony.
20) Allows the court to establish a list of special masters; appoint a special master in the adjudication
in order to facilitate and mediate, including creating a technical committee of the parties, the
parties' representatives, or both; and, sets out special masters' duties.
21) Sets out duties for a technical committee to an adjudication, if created.
22) Applies Evidence Code rules, as specified, to all mediations, settlement conferences, and other
out-of-court negotiations.
23) Makes it the policy of the state, and sets forth procedures, to encourage settlement and
compromise including granting the court broad powers to stay an action (i.e. pause it).
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24) Allows a party, or group of parties, that is more than 50% of all named parties in the adjudication
and who hold at least 75% of the groundwater rights to enter into a proposed stipulated judgment
and binds the court to impose any physical solution from that settlement.
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 of 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 the Department of Water Resources (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, under SGMA, that local agencies form Groundwater Sustainability Agencies (GSAs)
by June 30, 2017, in all high and medium priority basins that have not been adjudicated.
Requires GSAs in all high and medium priority basins, as defined, to develop and adopt GSPs
that provide for the sustainable management of the groundwater basin by January 31, 2020, or
January 31, 2022, as specified. Allows the State Water Resources Control Board to impose an
interim plan for groundwater management if no GSA is formed by the deadline, no GSP is
adopted by the appropriate deadline, or a GSP is adopted which the Department of Water
Resources deems insufficient.
FISCAL EFFECT: According to the Assembly Appropriations Committee, this bill imposes no
additional state costs.
COMMENTS: This bill streamlines the procedures used in a legal action to obtain a basin-wide
adjudication of groundwater rights.
Groundwater adjudications are legal processes where multiple parties who withdraw water from the
same aquifer can ask the court to better define the rights that various entities have to use
groundwater resources. 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 groundwater
pumping. Because the amount of water that can be collectively withdrawn from an aquifer without
causing harm can vary from year to year, courts retain continuing jurisdiction over the groundwater
basin and appoint a watermaster to ensure that pumping conforms to the limits defined by the
adjudication.
Currently, it is very difficult to determine who has groundwater rights that could be affected in an
adjudication and the scope of those rights. There are no state law requirements to report
groundwater withdrawals, so identifying existing pumpers and getting accurate data is complicated.
Also, State law gives every overlying property owner a potential right in an unadjudicated
groundwater basin, so there may also be many unexercised rights of unidentified people to consider.
Identifying and noticing all of those parties can be lengthy and expensive. There are also technical
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disagreements among parties, including as to the historic groundwater use, which could affect the
amount of groundwater to which each party is entitled.
A recent news article on the Antelope Valley groundwater adjudication highlights the challenges.
The case is enormous and has been sitting in a trial court for 15 years. It involves a multitude of
public agencies and landowners large and small who hold groundwater pumping rights including
cities, farmers, the federal government, and a class of 85,000 property owners who have never
pumped water. There are 9,404 docket entries in the case so far and more than 100 lawyers
involved. Another example is the Santa Maria groundwater basin in Santa Barbara and San Luis
Obispo counties. That case involved thousands of parties, cost an estimated tens of millions of
dollars, and after 15 years in the trial and appellate courts, it is still not completely resolved.
This bill tries to address some of the delays in groundwater adjudications by creating some
standardized forms, processes, and requirements. Importantly, it wrestles with the notice issue
utilizing multiple approaches including that notice can be made on property tax bills. This bill
tackles the groundwater history issue by requiring that parties disclose specifics regarding their
preceding 10 years of groundwater use up front. This bill also encourages the providing of
information in electronic form, sets out standards for the role of technical experts, and encourages
settlement.
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 and 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.
Opponents criticize this bill for not adequately protecting the interests of disadvantaged
communities, failing to provide attorney's fees and costs for those with a significant financial
hardship, failing to provide notices in multiple languages, and requiring notices to be sent with
property tax statements, which are only sent twice per year and are sometimes sent to escrow
companies that send the taxes, and not to the property-owning taxpayer.
Other stakeholders do not officially oppose this bill at this time but have raised concerns that this bill
will impose new burdens on cities and counties, especially by requiring that the plaintiff name cities
and counties as defendants whether the cities and counties have an interest in the adjudication or not.
There is currently one other bill on groundwater adjudication pending in the Legislature, SB 226
(Pavley) of the current legislative session, which seeks to streamline groundwater adjudication
processes and timelines but as a new chapter under SGMA.
Analysis Prepared by: Tina Leahy / W., P., & W. / (916) 319-2096
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