SB 226: Sustainable Groundwater Management Act: groundwater adjudication.
- Session Year: 2015-2016
- House: Senate
- Latest Version Date: 2015-10-09
The California Constitution requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable. Existing law specifies the jurisdiction of the courts. Under existing law, courts may adjudicate rights to produce groundwater and exercise other powers relating to the supervision of a groundwater basin. Existing law authorizes a court to order a reference to the State Water Resources Control Board, as referee, of any and all issues involved in a suit brought in any court of competent jurisdiction in this state for determination of rights to water.
This bill would authorize the state to intervene in a comprehensive adjudication conducted as specified in AB 1390 of the 201516 Regular Session.
Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources that are designated as basins subject to critical conditions of overdraft to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2020, and requires all other groundwater basins designated as high- or medium-priority basins to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2022, except as specified. The act authorizes a local agency to request that the department revise the boundaries of a basin.
This bill, in an adjudication action to determine rights to groundwater in a basin that is required to have a groundwater sustainability plan under the act, would require the court to manage the proceedings in a manner that minimizes interference with the timely completion and implementation of a groundwater sustainability plan, 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 within the timeframes established by the act. The bill would authorize an entity that is directed by the court in an adjudication action to file the request that the department revise the boundaries of a basin.
The act authorizes the state board to designate certain high- and medium-priority basins as a probationary basin if prescribed criteria are met. The act authorizes the state board to develop an interim plan for a probationary basin if the state board, in consultation with the department, determines that a local agency has not remedied a deficiency that resulted in designating the basin as a probationary basin within a certain timeframe. The act also requires the department, at least every 5 years after initial submission, to review any available groundwater sustainability plan or alternative and the implementation of the corresponding groundwater sustainability program for consistency with the act, including achieving the sustainability goal. The act requires the department to issue an assessment for each basin for which a plan or alternative has been submitted that may include recommended corrective actions to address any deficiencies identified by the department.
The bill would prohibit the provisions relating to probationary basins and interim plans from applying to a judgment approved by the court if the judgment is submitted to the department for evaluation and assessment and the department determines that the judgment satisfies the objectives of the act for the basin. The bill would require the department to submit to the court assessments and any recommended corrective actions for these judgments and would require the court, after notice and, if necessary, an evidentiary hearing, to determine whether to amend the judgment to adopt the departments recommended corrective actions. This bill would prohibit a court from approving entry of judgment in an adjudication action for a basin required to have a groundwater sustainability plan under the act 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 the act and to achieve sustainable groundwater management.
The California Constitution requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable. Existing law specifies the jurisdiction of the courts. Under existing law, courts may adjudicate rights to produce groundwater and exercise other powers relating to the supervision of a groundwater basin. Existing law authorizes a court to order a reference to the State Water Resources Control Board, as referee, of any and all issues involved in a suit brought in any court of competent jurisdiction in this state for determination of rights to water.
This bill would authorize the state to intervene in a comprehensive adjudication conducted as specified in AB 1390 of the 201516 Regular Session.
Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources that are designated as basins subject to critical conditions of overdraft to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2020, and requires all other groundwater basins designated as high- or medium-priority basins to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2022, except as specified. The act authorizes a local agency to request that the department revise the boundaries of a basin.
This bill, in an adjudication action to determine rights to groundwater in a basin that is required to have a groundwater sustainability plan under the act, would require the court to manage the proceedings in a manner that minimizes interference with the timely completion and implementation of a groundwater sustainability plan, 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 within the timeframes established by the act. The bill would authorize an entity that is directed by the court in an adjudication action to file the request that the department revise the boundaries of a basin.
The act authorizes the state board to designate certain high- and medium-priority basins as a probationary basin if prescribed criteria are met. The act authorizes the state board to develop an interim plan for a probationary basin if the state board, in consultation with the department, determines that a local agency has not remedied a deficiency that resulted in designating the basin as a probationary basin within a certain timeframe. The act also requires the department, at least every 5 years after initial submission, to review any available groundwater sustainability plan or alternative and the implementation of the corresponding groundwater sustainability program for consistency with the act, including achieving the sustainability goal. The act requires the department to issue an assessment for each basin for which a plan or alternative has been submitted that may include recommended corrective actions to address any deficiencies identified by the department.
The bill would prohibit the provisions relating to probationary basins and interim plans from applying to a judgment approved by the court if the judgment is submitted to the department for evaluation and assessment and the department determines that the judgment satisfies the objectives of the act for the basin. The bill would require the department to submit to the court assessments and any recommended corrective actions for these judgments and would require the court, after notice and, if necessary, an evidentiary hearing, to determine whether to amend the judgment to adopt the departments recommended corrective actions. This bill would prohibit a court from approving entry of judgment in an adjudication action for a basin required to have a groundwater sustainability plan under the act 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 the act and to achieve sustainable groundwater management.
The California Constitution requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable. Existing law specifies the jurisdiction of the courts. Under existing law, courts may adjudicate rights to produce groundwater and exercise other powers relating to the supervision of a groundwater basin. Existing law authorizes a court to order a reference to the State Water Resources Control Board, as referee, of any and all issues involved in the suit. a suit brought in any court of competent jurisdiction in this state for determination of rights to water.
This bill would authorize the state to intervene as a matter of right in any suit brought in any court for determination of rights to water. in a comprehensive adjudication conducted as specified in AB 1390 of the 201516 Regular Session.
Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources that are designated as basins subject to critical conditions of overdraft to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2020, and requires all other groundwater basins designated as high- or medium-priority basins to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2022, except as specified. The act authorizes a local agency to request that the department revise the boundaries of a basin.
This bill, in an adjudication action to determine rights to groundwater in a basin that is required to have a groundwater sustainability plan under the act, would require the court to manage the proceedings in a manner that minimizes interference with the timely completion and implementation of a groundwater sustainability plan, 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 within the timeframes established by the act. The bill would authorize an entity that is directed by the court in an adjudication action to file the request to request that the department revise the boundaries of a basin.
The act authorizes the state board to designate certain high- and medium-priority basins as a probationary basin if prescribed criteria are met. The act authorizes the state board to develop an interim plan for a probationary basin if the state board, in consultation with the department, determines that a local agency has not remedied a deficiency that resulted in designating the basin as a probationary basin within a certain timeframe. The act also requires the department, at least every 5 years after initial submission, to review any available groundwater sustainability plan or alternative and the implementation of the corresponding groundwater sustainability program for consistency with the act, including achieving the sustainability goal. The act requires the department to issue an assessment for each basin for which a plan or alternative has been submitted that may include recommended corrective actions to address any deficiencies identified by the department.
The bill would prohibit the provisions relating to probationary basins and interim plans from applying to a stipulated judgment approved by the court if the judgment is submitted to the department for evaluation and assessment and the department determines that the judgment satisfies the objectives of the act for the basin. The bill would require the department to submit to the court assessments and any recommended corrective actions for these judgments and would require the court, after notice and, if necessary, an evidentiary hearing, to determine whether to amend the judgment to adopt the departments recommended corrective actions. This bill would prohibit a court from approving entry of judgment in an adjudication action for a basin required to have a groundwater sustainability plan under the act 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 the act and to achieve sustainable groundwater management.
The California Constitution requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable. Existing law specifies the jurisdiction of the courts. Under existing law, courts may adjudicate rights to produce groundwater and exercise other powers relating to the supervision of a groundwater basin. Existing law authorizes a court to order a reference to the State Water Resources Control Board, as referee, of any and all issues involved in the suit.
This bill would authorize the state to intervene as a matter of right in any suit brought in any court for determination of rights to water.
Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources that are designated as basins subject to critical conditions of overdraft to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2020, and requires all other groundwater basins designated as high- or medium-priority basins to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2022, except as specified. The act authorizes a local agency to request that the department revise the boundaries of a basin.
This bill would establish special procedures for certain adjudication actions determining rights to groundwater in furtherance of the objectives of the act. The bill would provide that a court shall use the procedures in the Code of Civil Procedure for these adjudication actions, except as provided by the special procedures established in the bill. The bill would authorize the court to determine all rights to groundwater in a basin whether based on appropriation, overlying right, or other basis of right. The bill would require the boundaries of the area subject to an adjudication action to be consistent with the boundaries of a basin, with specified exceptions. The bill would specify service and notice procedures and would deem fulfillment of the service and publication provisions as effective service of process of the complaint and notice on all interested parties of the adjudication action for purposes of establishing in rem jurisdiction and the comprehensive effect of the adjudication action. The bill would require a party to provide specified initial disclosures, as prescribed, and under penalty of perjury. By expanding the scope of the crime of perjury, the bill would impose a state-mandated local program. The bill would require the court to have the authority and duty to impose a physical solution on the parties in an adjudication action where necessary and would authorize the court to adopt a stipulated judgment if the court finds that the judgment meets certain criteria. This bill would require the court to have continuing jurisdiction to modify or amend a final judgment in an adjudication action, as specified.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
This bill, in an adjudication action to determine rights to groundwater in a basin that is required to have a groundwater sustainability plan under the act, would require the court to manage the proceedings in a manner that minimizes interference with the timely completion and implementation of a groundwater sustainability plan, 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 within the timeframes established by the act. The bill would authorize an entity that is directed by the court in an adjudication action to file the request to request that the department revise the boundaries of a basin.
The act authorizes the state board to designate certain high- and medium-priority basins as a probationary basin if prescribed criteria are met. The act authorizes the state board to develop an interim plan for a probationary basin if the state board, in consultation with the department, determines that a local agency has not remedied a deficiency that resulted in designating the basin as a probationary basin within a certain timeframe. The act also requires the department, at least every 5 years after initial submission, to review any available groundwater sustainability plan or alternative and the implementation of the corresponding groundwater sustainability program for consistency with the act, including achieving the sustainability goal. The act requires the department to issue an assessment for each basin for which a plan or alternative has been submitted that may include recommended corrective actions to address any deficiencies identified by the department.
The bill would prohibit the provisions relating to probationary basins and interim plans from applying to a stipulated judgment approved by the court if the judgment is submitted to the department for evaluation and assessment and the department determines that the judgment satisfies the objectives of the act for the basin. The bill would require the department to submit to the court assessments and any recommended corrective actions for these judgments and would require the court, after notice and, if necessary, an evidentiary hearing, to determine whether to amend the judgment to adopt the departments recommended corrective actions. This bill would prohibit a court from approving entry of judgment in an adjudication action for a basin required to have a groundwater sustainability plan under the act 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 the act and to achieve sustainable groundwater management.
The California Constitution requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable. Existing law specifies the jurisdiction of the courts. Under existing law, courts may adjudicate rights to produce groundwater and exercise other powers relating to the supervision of a groundwater basin. Existing law authorizes a court to order a reference to the State Water Resources Control Board, as referee, of any and all issues involved in the suit.
This bill would authorize the state to intervene as a matter of right in any suit brought in any court for determination of rights to water.
Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources that are designated as basins subject to critical conditions of overdraft to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2020, and requires all other groundwater basins designated as high- or medium-priority basins to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2022, except as specified.
Existing law specifies the jurisdiction of the courts. Under existing law, courts may adjudicate rights to produce groundwater and exercise other powers relating to the supervision of a groundwater basin.
This bill would find and declare that it establishes a timely and comprehensive method for determining rights to groundwater. establish special procedures for certain adjudication actions determining rights to groundwater in furtherance of the objectives of the act. The bill would provide that a court shall use the procedures in the Code of Civil Procedure for determining rights to groundwater, these adjudication actions, except as provided by the special procedures established in the bill. This bill would require the process for determining rights to groundwater to be available to any court of competent jurisdiction. The bill would provide that it applies to Indian tribes and the federal government. The bill would require the boundaries of a basin to be as identified in Bulletin 118, unless other basin boundaries are established, as specified. The bill would authorize the Department of Water Resources and the Department of Fish and Wildlife to intervene in an action or proceeding if they claim an interest relating to the action or proceeding, as provided. The bill would authorize the court to determine all rights to groundwater in a basin whether based on appropriation, overlying right, or other basis of right. The bill would require the boundaries of the area subject to an adjudication action to be consistent with the boundaries of a basin, with specified exceptions. The bill would specify service and notice procedures. procedures and would deem fulfillment of the service and publication provisions as effective service of process of the complaint and notice on all interested parties of the adjudication action for purposes of establishing in rem jurisdiction and the comprehensive effect of the adjudication action. The bill would require a party to provide specified initial disclosures to the other parties, including, among other disclosures, information relating to expert witnesses. disclosures, as prescribed, and under penalty of perjury. By expanding the scope of the crime of perjury, the bill would impose a state-mandated local program. The bill would require the court to have the authority and duty to impose a physical solution on the parties in an adjudication action where necessary and would authorize the court to adopt a stipulated judgment if the court finds that the judgment meets certain criteria. This bill would require the court to have continuing jurisdiction to modify or amend a final judgment in an adjudication action, as specified.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources that are designated as basins subject to critical conditions of overdraft to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2020, and requires all other groundwater basins designated as high- or medium-priority basins to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2022, except as specified.
Existing law specifies the jurisdiction of the courts. Under existing law, courts may adjudicate rights to produce groundwater and exercise other powers relating to the supervision of a groundwater basin.
This bill would find and declare that it establishes a timely and comprehensive method for determining rights to groundwater. The bill would provide 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. This bill would require the process for determining rights to groundwater to be available to any court of competent jurisdiction. The bill would provide that it applies to Indian tribes and the federal government. The bill would require the boundaries of a basin to be as identified in Bulletin 118, unless other basin boundaries are established, as specified. The bill would authorize the Department of Water Resources and the Department of Fish and Wildlife to intervene in an action or proceeding if they claim an interest relating to the action or proceeding, as provided. The bill would specify service and notice procedures. The bill would require a party to provide specified initial disclosures to the other parties, including, among other disclosures, information relating to expert witnesses.
Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources that are designated as basins subject to critical conditions of overdraft to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2020, and requires all other groundwater basins designated as high- or medium-priority basins to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2022, except as specified.
Existing law specifies the jurisdiction of the courts. Under existing law, courts may adjudicate rights to produce groundwater and exercise other powers relating to the supervision of a groundwater basin.
This bill would provide find and declare that it establishes a timely and comprehensive method for determining rights to groundwater. The bill would provide that a court shall use the Code of Civil Procedure for determining rights to groundwater in furtherance of the objectives of groundwater, except as provided by the special procedures established in the act. bill. This bill would require the process for determining rights to groundwater to be available to any court of competent jurisdiction. The bill would provide that it applies to Indian tribes and the federal government. This The bill would require the boundaries of a basin to be as identified in Bulletin 118, unless other basin boundaries are established, as specified. The bill would authorize the Department of Water Resources and the Department of Fish and Wildlife to intervene in an action or proceeding if they claim an interest relating to the action or proceeding, as provided. The bill would specify service and notice procedures. The bill would require a party to provide specified initial disclosures to the other parties, including, among other disclosures, information relating to expert witnesses.
Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources that are designated as basins subject to critical conditions of overdraft to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2020, and requires all other groundwater basins designated as high- or medium-priority basins to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans by January 31, 2022, except as specified.
Existing law specifies the jurisdiction of the courts. Under existing law, courts may adjudicate rights to produce groundwater and exercise other powers relating to the supervision of a groundwater basin.
This bill would provide that it establishes a timely method for determining rights to groundwater in furtherance of the objectives of the act. This bill would require the process to be available to any court of competent jurisdiction. This bill would require the boundaries of a basin to be as identified in Bulletin 118, unless other basin boundaries are established, as specified.
(a)The state may intervene in a comprehensive adjudication conducted pursuant to this chapter.
(b)This section does not affect substantive law.
SEC. 2.Section 10720.1 of the Water Code is amended to read:10720.1.In enacting this part, it is the intent of the Legislature to do all of the following:
(a)To provide for the sustainable management of groundwater basins.
(b)To enhance local management of groundwater consistent with rights to use or store groundwater and Section 2 of Article X of the California Constitution. It is the intent of the Legislature to preserve the security of water rights in the state to the greatest extent possible consistent with the sustainable management of groundwater.
(c)To establish minimum standards for sustainable groundwater management.
(d)To provide local groundwater agencies with the authority and the technical and financial assistance necessary to sustainably manage groundwater.
(e)To avoid or minimize subsidence.
(f)To improve data collection and understanding about groundwater.
(g)To increase groundwater storage and remove impediments to recharge.
(h)To manage groundwater basins through the actions of local governmental agencies to the greatest extent feasible, while minimizing state intervention to only when necessary to ensure that local agencies manage groundwater in a sustainable manner.
(i)To provide a more efficient and cost-effective groundwater adjudication process that protects water rights, ensures due process, prevents unnecessary delay, and furthers the objectives of this part.
SEC. 3.Section 10720.5 of the Water Code is amended to read:10720.5.(a)Groundwater management pursuant to this part shall be consistent with Section 2 of Article X of the California Constitution. Nothing in this part modifies rights or priorities to use or store groundwater consistent with Section 2 of Article X of the California Constitution, except that in basins designated medium- or high-priority basins by the department, no extraction of groundwater between January 1, 2015, and the date of adoption of a groundwater sustainability plan pursuant to this part or the approval by the department of an alternative submitted under Section 10733.6, whichever is sooner, may be used as evidence of, or to establish or defend against, any claim of prescription.
(b)Nothing in this part, or in any groundwater management plan adopted pursuant to this part, determines or alters surface water rights or groundwater rights under common law or any provision of law that determines or grants surface water rights.
(c)Water rights may be determined in an adjudication action pursuant to Chapter 7 (commencing with Section 830) of Title 10 of Part 2 of the Code of Civil Procedure.
SEC. 4.Section 10722.2 of the Water Code is amended to read:10722.2.(a)A local agency or an entity directed by the court in an adjudication action to file the request may request that the department revise the boundaries of a basin, including the establishment of new subbasins. A request shall be supported by the following information:
(1)Information demonstrating that the proposed adjusted basin can be the subject of sustainable groundwater management.
(2)Technical information regarding the boundaries of, and conditions in, the proposed adjusted basin.
(3)Information demonstrating that the entity proposing the basin boundary adjustment consulted with interested local agencies and public water systems in the affected basins before filing the proposal with the department.
(4)Other information the department deems necessary to justify revision of the basins boundary.
(b)By January 1, 2016, the department shall adopt regulations regarding the information required to comply with subdivision (a), including the methodology and criteria to be used to evaluate the proposed revision. The department shall adopt the regulations, including any amendments thereto, authorized by this section as emergency regulations in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). The adoption of these regulations is an emergency and shall be considered by the Office of Administrative Law as necessary for the immediate preservation of the public peace, health and safety, or general welfare. Notwithstanding the Administrative Procedure Act, emergency regulations adopted by the department pursuant to this section shall not be subject to review by the Office of Administrative Law and shall remain in effect until revised by the department.
(c)Methodology and criteria established pursuant to subdivision (b) shall address all of the following:
(1)How to assess the likelihood that the proposed basin can be sustainably managed.
(2)How to assess whether the proposed basin would limit the sustainable management of adjacent basins.
(3)How to assess whether there is a history of sustainable management of groundwater levels in the proposed basin.
(d)Prior to adopting the regulations pursuant to subdivision (b), the department shall conduct three public meetings to consider public comments. The department shall publish the draft regulations on its Internet Web site at least 30 days before the public meetings. One meeting shall be conducted at a location in northern California, one meeting shall be conducted at a location in the central valley of California, and one meeting shall be conducted at a location in southern California.
(e)The department shall provide a copy of its draft revision of a basins boundaries to the California Water Commission. The California Water Commission shall hear and comment on the draft revision within 60 days after the department provides the draft revision to the commission.
SEC. 5.Chapter 12 (commencing with Section 10737) is added to Part 2.74 of Division 6 of the Water Code, to read:12.Determination of Rights to Groundwater10737.Except as provided in this chapter, an adjudication action to determine rights to groundwater in a basin shall be conducted in accordance with the Code of Civil Procedure, including pursuant to Chapter 7 (commencing with Section 830) of Title 10 of Part 2 of that code.
10737.2.In an adjudication action for a basin required to have a groundwater sustainability plan under this part, the court shall manage the proceedings in a manner that minimizes interference with the timely completion and implementation of a groundwater sustainability plan, 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 within the timeframes established by this part.
10737.4.(a)Chapter 11 (commencing with Section 10735) shall not apply to a judgment approved by the court pursuant to Section 850 of the Code of Civil Procedure if both of the following apply:
(1)A local agency or a party directed by the court to file the submission submits the judgment to the department for evaluation and assessment pursuant to paragraph (2) of subdivision (b) of Section 10733.6.
(2)The department determines that the judgment satisfies the objectives of this part for the basin.
(b)A party or group of parties proposing a stipulated judgment pursuant to subdivision (b) of Section 850 of the Code of Civil Procedure may submit the proposed stipulated judgment to the department for evaluation and assessment pursuant to paragraph (2) of subdivision (b) of Section 10733.6.
(c)Notwithstanding subdivision (c) of Section 10733.6, a judgment or proposed stipulated judgment pursuant to this section may be submitted to the department after January 1, 2017.
(d)A determination of the department on a submission pursuant to this section is subject to judicial review pursuant to Section 1085 of the Code of Civil Procedure. Venue shall be in the court with jurisdiction over the adjudication action and the case shall be coordinated with the adjudication action.
10737.6.If the department determines that a judgment satisfies the objectives of this part in accordance with paragraph (2) of subdivision (a) of Section 10737.4, the department shall submit to the court the assessments and any recommended corrective actions that the department issues pursuant to Section 10733.8. The court, after notice and, if necessary, an evidentiary hearing, shall determine whether to amend the judgment pursuant to Section 852 of the Code of Civil Procedure to adopt the departments recommended corrective actions.
10737.8.In addition to making any findings required by subdivision (a) of Section 850 of the Code of Civil Procedure or any other law, the court shall not approve entry of judgment in an adjudication action for a basin required to have a groundwater sustainability plan under this part 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 this part and to achieve sustainable groundwater management.
SEC. 6.This act shall only become operative if Assembly Bill 1390 of the 201516 Regular Session is enacted and becomes effective.
(a)The state may intervene in a comprehensive adjudication conducted pursuant to this chapter.
(b)This section does not affect substantive law.
SEC. 2.Section 10720.1 of the Water Code is amended to read:10720.1.In enacting this part, it is the intent of the Legislature to do all of the following:
(a)To provide for the sustainable management of groundwater basins.
(b)To enhance local management of groundwater consistent with rights to use or store groundwater and Section 2 of Article X of the California Constitution. It is the intent of the Legislature to preserve the security of water rights in the state to the greatest extent possible consistent with the sustainable management of groundwater.
(c)To establish minimum standards for sustainable groundwater management.
(d)To provide local groundwater agencies with the authority and the technical and financial assistance necessary to sustainably manage groundwater.
(e)To avoid or minimize subsidence.
(f)To improve data collection and understanding about groundwater.
(g)To increase groundwater storage and remove impediments to recharge.
(h)To manage groundwater basins through the actions of local governmental agencies to the greatest extent feasible, while minimizing state intervention to only when necessary to ensure that local agencies manage groundwater in a sustainable manner.
(i)To provide a more efficient and cost-effective groundwater adjudication process that protects water rights, ensures due process, prevents unnecessary delay, and furthers the objectives of this part.
SEC. 3.Section 10720.5 of the Water Code is amended to read:10720.5.(a)Groundwater management pursuant to this part shall be consistent with Section 2 of Article X of the California Constitution. Nothing in this part modifies rights or priorities to use or store groundwater consistent with Section 2 of Article X of the California Constitution, except that in basins designated medium- or high-priority basins by the department, no extraction of groundwater between January 1, 2015, and the date of adoption of a groundwater sustainability plan pursuant to this part or the approval by the department of an alternative submitted under Section 10733.6, whichever is sooner, may be used as evidence of, or to establish or defend against, any claim of prescription.
(b)Nothing in this part, or in any groundwater management plan adopted pursuant to this part, determines or alters surface water rights or groundwater rights under common law or any provision of law that determines or grants surface water rights.
(c)Water rights may be determined in an adjudication action pursuant to Chapter 7 (commencing with Section 830) of Title 10 of Part 2 of the Code of Civil Procedure.
SEC. 4.Section 10722.2 of the Water Code is amended to read:10722.2.(a)A local agency or an entity directed by the court in an adjudication action to file the request may request that the department revise the boundaries of a basin, including the establishment of new subbasins. A request shall be supported by the following information:
(1)Information demonstrating that the proposed adjusted basin can be the subject of sustainable groundwater management.
(2)Technical information regarding the boundaries of, and conditions in, the proposed adjusted basin.
(3)Information demonstrating that the entity proposing the basin boundary adjustment consulted with interested local agencies and public water systems in the affected basins before filing the proposal with the department.
(4)Other information the department deems necessary to justify revision of the basins boundary.
(b)By January 1, 2016, the department shall adopt regulations regarding the information required to comply with subdivision (a), including the methodology and criteria to be used to evaluate the proposed revision. The department shall adopt the regulations, including any amendments thereto, authorized by this section as emergency regulations in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). The adoption of these regulations is an emergency and shall be considered by the Office of Administrative Law as necessary for the immediate preservation of the public peace, health and safety, or general welfare. Notwithstanding the Administrative Procedure Act, emergency regulations adopted by the department pursuant to this section shall not be subject to review by the Office of Administrative Law and shall remain in effect until revised by the department.
(c)Methodology and criteria established pursuant to subdivision (b) shall address all of the following:
(1)How to assess the likelihood that the proposed basin can be sustainably managed.
(2)How to assess whether the proposed basin would limit the sustainable management of adjacent basins.
(3)How to assess whether there is a history of sustainable management of groundwater levels in the proposed basin.
(d)Prior to adopting the regulations pursuant to subdivision (b), the department shall conduct three public meetings to consider public comments. The department shall publish the draft regulations on its Internet Web site at least 30 days before the public meetings. One meeting shall be conducted at a location in northern California, one meeting shall be conducted at a location in the central valley of California, and one meeting shall be conducted at a location in southern California.
(e)The department shall provide a copy of its draft revision of a basins boundaries to the California Water Commission. The California Water Commission shall hear and comment on the draft revision within 60 days after the department provides the draft revision to the commission.
SEC. 5.Chapter 12 (commencing with Section 10737) is added to Part 2.74 of Division 6 of the Water Code, to read:12.Determination of Rights to Groundwater10737.Except as provided in this chapter, an adjudication action to determine rights to groundwater in a basin shall be conducted in accordance with the Code of Civil Procedure, including pursuant to Chapter 7 (commencing with Section 830) of Title 10 of Part 2 of that code.
10737.2.In an adjudication action for a basin required to have a groundwater sustainability plan under this part, the court shall manage the proceedings in a manner that minimizes interference with the timely completion and implementation of a groundwater sustainability plan, 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 within the timeframes established by this part.
10737.4.(a)Chapter 11 (commencing with Section 10735) shall not apply to a judgment approved by the court pursuant to Section 850 of the Code of Civil Procedure if both of the following apply:
(1)A local agency or a party directed by the court to file the submission submits the judgment to the department for evaluation and assessment pursuant to paragraph (2) of subdivision (b) of Section 10733.6.
(2)The department determines that the judgment satisfies the objectives of this part for the basin.
(b)A party or group of parties proposing a stipulated judgment pursuant to subdivision (b) of Section 850 of the Code of Civil Procedure may submit the proposed stipulated judgment to the department for evaluation and assessment pursuant to paragraph (2) of subdivision (b) of Section 10733.6.
(c)Notwithstanding subdivision (c) of Section 10733.6, a judgment or proposed stipulated judgment pursuant to this section may be submitted to the department after January 1, 2017.
(d)A determination of the department on a submission pursuant to this section is subject to judicial review pursuant to Section 1085 of the Code of Civil Procedure. Venue shall be in the court with jurisdiction over the adjudication action and the case shall be coordinated with the adjudication action.
10737.6.If the department determines that a judgment satisfies the objectives of this part in accordance with paragraph (2) of subdivision (a) of Section 10737.4, the department shall submit to the court the assessments and any recommended corrective actions that the department issues pursuant to Section 10733.8. The court, after notice and, if necessary, an evidentiary hearing, shall determine whether to amend the judgment pursuant to Section 852 of the Code of Civil Procedure to adopt the departments recommended corrective actions.
10737.8.In addition to making any findings required by subdivision (a) of Section 850 of the Code of Civil Procedure or any other law, the court shall not approve entry of judgment in an adjudication action for a basin required to have a groundwater sustainability plan under this part 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 this part and to achieve sustainable groundwater management.
SEC. 6.This act shall only become operative if Assembly Bill 1390 of the 201516 Regular Session is enacted and becomes effective.
(a)Notwithstanding any other law, the state may intervene as a matter of right in any suit brought in any court for determination of rights to water.
(b)This section does not affect substantive law.
SECTION 1.Section 837.5 is added to the Code of Civil Procedure, immediately following Section 837, to read:837.5.(a)The state may intervene in a comprehensive adjudication conducted pursuant to this chapter.
(b)This section does not affect substantive law.
SEC. 2.Section 10720.1 of the Water Code is amended to read:10720.1.In enacting this part, it is the intent of the Legislature to do all of the following:
(a)To provide for the sustainable management of groundwater basins.
(b)To enhance local management of groundwater consistent with rights to use or store groundwater and Section 2 of Article X of the California Constitution. It is the intent of the Legislature to preserve the security of water rights in the state to the greatest extent possible consistent with the sustainable management of groundwater.
(c)To establish minimum standards for sustainable groundwater management.
(d)To provide local groundwater agencies with the authority and the technical and financial assistance necessary to sustainably manage groundwater.
(e)To avoid or minimize subsidence.
(f)To improve data collection and understanding about groundwater.
(g)To increase groundwater storage and remove impediments to recharge.
(h)To manage groundwater basins through the actions of local governmental agencies to the greatest extent feasible, while minimizing state intervention to only when necessary to ensure that local agencies manage groundwater in a sustainable manner.
(i)To provide a more efficient and cost-effective groundwater adjudication process that protects water rights, ensures due process, prevents unnecessary delay, and furthers the objectives of this part.
SEC. 3.Section 10720.5 of the Water Code is amended to read:10720.5.(a)Groundwater management pursuant to this part shall be consistent with Section 2 of Article X of the California Constitution. Nothing in this part modifies rights or priorities to use or store groundwater consistent with Section 2 of Article X of the California Constitution, except that in basins designated medium- or high-priority basins by the department, no extraction of groundwater between January 1, 2015, and the date of adoption of a groundwater sustainability plan pursuant to this part or the approval by the department of an alternative submitted under Section 10733.6, whichever is sooner, may be used as evidence of, or to establish or defend against, any claim of prescription.
(b)Nothing in this part, or in any groundwater management plan adopted pursuant to this part, determines or alters surface water rights or groundwater rights under common law or any provision of law that determines or grants surface water rights.
(c)Water rights may be determined in an adjudication action pursuant to Chapter 7 (commencing with Section 830) of Title 10 of Part 2 of the Code of Civil Procedure.
SEC. 4.Section 10722.2 of the Water Code is amended to read:10722.2.(a)A local agency or an entity directed by the court in an adjudication action to file the request may request that the department revise the boundaries of a basin, including the establishment of new subbasins. A request shall be supported by the following information:
(1)Information demonstrating that the proposed adjusted basin can be the subject of sustainable groundwater management.
(2)Technical information regarding the boundaries of, and conditions in, the proposed adjusted basin.
(3)Information demonstrating that the entity proposing the basin boundary adjustment consulted with interested local agencies and public water systems in the affected basins before filing the proposal with the department.
(4)Other information the department deems necessary to justify revision of the basins boundary.
(b)By January 1, 2016, the department shall adopt regulations regarding the information required to comply with subdivision (a), including the methodology and criteria to be used to evaluate the proposed revision. The department shall adopt the regulations, including any amendments thereto, authorized by this section as emergency regulations in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). The adoption of these regulations is an emergency and shall be considered by the Office of Administrative Law as necessary for the immediate preservation of the public peace, health and safety, or general welfare. Notwithstanding the Administrative Procedure Act, emergency regulations adopted by the department pursuant to this section shall not be subject to review by the Office of Administrative Law and shall remain in effect until revised by the department.
(c)Methodology and criteria established pursuant to subdivision (b) shall address all of the following:
(1)How to assess the likelihood that the proposed basin can be sustainably managed.
(2)How to assess whether the proposed basin would limit the sustainable management of adjacent basins.
(3)How to assess whether there is a history of sustainable management of groundwater levels in the proposed basin.
(d)Prior to adopting the regulations pursuant to subdivision (b), the department shall conduct three public meetings to consider public comments. The department shall publish the draft regulations on its Internet Web site at least 30 days before the public meetings. One meeting shall be conducted at a location in northern California, one meeting shall be conducted at a location in the central valley of California, and one meeting shall be conducted at a location in southern California.
(e)The department shall provide a copy of its draft revision of a basins boundaries to the California Water Commission. The California Water Commission shall hear and comment on the draft revision within 60 days after the department provides the draft revision to the commission.
SEC. 5.Chapter 12 (commencing with Section 10737) is added to Part 2.74 of Division 6 of the Water Code, to read:12.Determination of Rights to Groundwater10737.Except as provided in this chapter, an adjudication action to determine rights to groundwater in a basin shall be conducted in accordance with the Code of Civil Procedure, including pursuant to Chapter 7 (commencing with Section 830) of Title 10 of Part 2 of that code.
10737.2.In an adjudication action for a basin required to have a groundwater sustainability plan under this part, the court shall manage the proceedings in a manner that minimizes interference with the timely completion and implementation of a groundwater sustainability plan, 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 within the timeframes established by this part.
10737.4.(a)Chapter 11 (commencing with Section 10735) shall not apply to a stipulated judgment approved by the court pursuant to Section 850 of the Code of Civil Procedure if both of the following apply:
(1)A local agency or a party directed by the court to file the submission submits the judgment to the department for evaluation and assessment pursuant to paragraph (2) of subdivision (b) of Section 10733.6.
(2)The department determines that the judgment satisfies the objectives of this part for the basin.
(b)A party or group of parties proposing a stipulated judgment pursuant to subdivision (b) of Section 850 of the Code of Civil Procedure may submit the proposed stipulated judgment to the department for evaluation and assessment pursuant to paragraph (2) of subdivision (b) of Section 10733.6.
(c)Notwithstanding subdivision (c) of Section 10733.6, a judgment or proposed stipulated judgment pursuant to this section may be submitted to the department after January 1, 2017.
(d)A determination of the department on a submission pursuant to this section is subject to judicial review pursuant to Section 1085 of the Code of Civil Procedure. Venue shall be in the court with jurisdiction over the adjudication action and the case shall be coordinated with the adjudication action.
10737.6.If the department determines that a judgment satisfies the objectives of this part in accordance with paragraph (2) of subdivision (a) of Section 10737.4, the department shall submit to the court the assessments and any recommended corrective actions that the department issues pursuant to Section 10733.8. The court, after notice and, if necessary, an evidentiary hearing, shall determine whether to amend the judgment pursuant to Section 852 of the Code of Civil Procedure to adopt the departments recommended corrective actions.
10737.8.In addition to making any findings required by subdivision (a) of Section 850 of the Code of Civil Procedure or any other law, the court shall not approve entry of judgment in an adjudication action for a basin required to have a groundwater sustainability plan under this part 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 this part and to achieve sustainable groundwater management.
SEC. 6.This act shall only become operative if Assembly Bill 1390 of the 201516 Regular Session is enacted and becomes effective.
(a)Notwithstanding any other law, the state may intervene as a matter of right in any suit brought in any court for determination of rights to water.
(b)This section does not affect substantive law.
SEC. 2.Section 10720.1 of the Water Code is amended to read:10720.1.In enacting this part, it is the intent of the Legislature to do all of the following:
(a)To provide for the sustainable management of groundwater basins.
(b)To enhance local management of groundwater consistent with rights to use or store groundwater and Section 2 of Article X of the California Constitution. It is the intent of the Legislature to preserve the security of water rights in the state to the greatest extent possible consistent with the sustainable management of groundwater.
(c)To establish minimum standards for sustainable groundwater management.
(d)To provide local groundwater agencies with the authority and the technical and financial assistance necessary to sustainably manage groundwater.
(e)To avoid or minimize subsidence.
(f)To improve data collection and understanding about groundwater.
(g)To increase groundwater storage and remove impediments to recharge.
(h)To manage groundwater basins through the actions of local governmental agencies to the greatest extent feasible, while minimizing state intervention to only when necessary to ensure that local agencies manage groundwater in a sustainable manner.
(i)To provide a more efficient and cost-effective groundwater adjudication process that protects water rights, ensures due process, prevents unnecessary delay, and furthers the objectives of this part.
SEC. 3.Section 10720.5 of the Water Code is amended to read:10720.5.(a)Groundwater management pursuant to this part shall be consistent with Section 2 of Article X of the California Constitution. Nothing in this part modifies rights or priorities to use or store groundwater consistent with Section 2 of Article X of the California Constitution, except that in basins designated medium- or high-priority basins by the department, no extraction of groundwater between January 1, 2015, and the date of adoption of a groundwater sustainability plan pursuant to this part or the approval by the department of an alternative submitted under Section 10733.6, whichever is sooner, may be used as evidence of, or to establish or defend against, any claim of prescription.
(b)Nothing in this part, or in any groundwater management plan adopted pursuant to this part, determines or alters surface water rights or groundwater rights under common law or any provision of law that determines or grants surface water rights.
(c)Water rights may be determined in an adjudication action pursuant to Chapter 12 (commencing with Section 10737). Chapter 7 (commencing with Section 830) of Title 10 of Part 2 of the Code of Civil Procedure.
SEC. 4.Section 10720.8 of the Water Code is amended to read:10720.8.(a)Except as provided in subdivisions (e) and (g), this part does not apply to the following adjudicated areas or a local agency that conforms to the requirements of an adjudication of water rights for one of the following adjudicated areas:
(1)Beaumont Basin.
(2)Brite Basin.
(3)Central Basin.
(4)Chino Basin.
(5)Cucamonga Basin.
(6)Cummings Basin.
(7)Goleta Basin.
(8)Lytle Basin.
(9)Main San Gabriel Basin.
(10)Mojave Basin Area.
(11)Puente Basin.
(12)Raymond Basin.
(13)Rialto-Colton Basin.
(14)Riverside Basin.
(15)San Bernardino Basin Area.
(16)San Jacinto Basin.
(17)Santa Margarita River Watershed.
(18)Santa Maria Valley Basin.
(19)Santa Paula Basin.
(20)Scott River Stream System.
(21)Seaside Basin.
(22)Six Basins.
(23)Tehachapi Basin.
(24)Upper Los Angeles River Area.
(25)Warren Valley Basin.
(26)West Coast Basin.
(b)The Antelope Valley basin at issue in the Antelope Valley Groundwater Cases (Judicial Council Coordination Proceeding Number 4408) shall be treated as an adjudicated basin pursuant to this section if the superior court issues a final judgment, order, or decree.
(c)Any groundwater basin or portion of a groundwater basin in Inyo County managed pursuant to the terms of the stipulated judgment in City of Los Angeles v. Board of Supervisors of the County of Inyo, et al. (Inyo County Case No. 12908) shall be treated as an adjudicated area pursuant to this section.
(d)The Los Osos Groundwater Basin at issue in Los Osos Community Service District v. Southern California Water Company [Golden State Water Company] et al. (San Luis Obispo County Superior Court Case No. CV 040126) shall be treated as an adjudicated basin pursuant to this section if the superior court issues a final judgment, order, or decree.
(e)If an adjudication action has determined the rights to extract groundwater for only a portion of a basin, subdivisions (a), (b), (c), and (d) apply only within the area for which the adjudication action has determined those rights.
(f)The watermaster or a local agency within a basin identified in subdivision (a) shall do all of the following:
(1)By April 1, 2016, submit to the department a copy of a governing final judgment, or other judicial order or decree, and any amendments entered before April 1, 2016.
(2)Within 90 days of entry by a court, submit to the department a copy of any amendment made and entered by the court to the governing final judgment or other judicial order or decree on or after April 1, 2016.
(3)By April 1, 2016, and annually thereafter, submit to the department a report containing the following information to the extent available for the portion of the basin subject to the adjudication:
(A)Groundwater elevation data unless otherwise submitted pursuant to Section 10932.
(B)Annual aggregated data identifying groundwater extraction for the preceding water year.
(C)Surface water supply used for or available for use for groundwater recharge or in-lieu use.
(D)Total water use.
(E)Change in groundwater storage.
(F)The annual report submitted to the court.
(g)A court with jurisdiction over a proposed expansion of an adjudicated area described in subdivisions (a) to (d), inclusive, may order that the proceeding be conducted in accordance with Chapter 12 (commencing with Section 10737).
SEC. 5.Section 10721 of the Water Code is amended to read:10721.Unless the context otherwise requires, the following definitions govern the construction of this part:
(a)Adjudication action means an action filed in the superior or federal district court to determine the rights to extract groundwater from a basin or store water within a basin, including, but not limited to, actions to quiet title respecting rights to extract or store groundwater or an action brought to impose a physical solution on a basin.
(b)Basin means a groundwater basin or subbasin identified and defined in Bulletin 118 or as modified pursuant to Chapter 3 (commencing with Section 10722).
(c)Bulletin 118 means the departments report entitled Californias Groundwater: Bulletin 118 updated in 2003, as it may be subsequently updated or revised in accordance with Section 12924.
(d)Coordination agreement means a legal agreement adopted between two or more groundwater sustainability agencies that provides the basis for coordinating multiple agencies or groundwater sustainability plans within a basin pursuant to this part.
(e)De minimis extractor means a person who extracts, for domestic purposes, two acre-feet or less per year.
(f)Expert witness means a witness qualified pursuant to Section 720 of the Evidence Code.
(g)Governing body means the legislative body of a groundwater sustainability agency.
(h)Groundwater means water beneath the surface of the earth within the zone below the water table in which the soil is completely saturated with water, but does not include water that flows in known and definite channels.
(i)Groundwater extraction facility means a device or method for extracting groundwater from within a basin.
(j)Groundwater recharge means the augmentation of groundwater, by natural or artificial means.
(k)Groundwater sustainability agency means one or more local agencies that implement the provisions of this part. For purposes of imposing fees pursuant to Chapter 8 (commencing with Section 10730) or taking action to enforce a groundwater sustainability plan, groundwater sustainability agency also means each local agency comprising the groundwater sustainability agency if the plan authorizes separate agency action.
(l)Groundwater sustainability plan or plan means a plan of a groundwater sustainability agency proposed or adopted pursuant to this part.
(m)Groundwater sustainability program means a coordinated and ongoing activity undertaken to benefit a basin, pursuant to a groundwater sustainability plan.
(n)Local agency means a local public agency that has water supply, water management, or land use responsibilities within a groundwater basin.
(o)Operator means a person operating a groundwater extraction facility. The owner of a groundwater extraction facility shall be conclusively presumed to be the operator unless a satisfactory showing is made to the governing body of the groundwater sustainability agency that the groundwater extraction facility actually is operated by some other person.
(p)Owner means a person owning a groundwater extraction facility or an interest in a groundwater extraction facility other than a lien to secure the payment of a debt or other obligation.
(q)Personal information has the same meaning as defined in Section 1798.3 of the Civil Code.
(r)Planning and implementation horizon means a 50-year time period over which a groundwater sustainability agency determines that plans and measures will be implemented in a basin to ensure that the basin is operated within its sustainable yield.
(s)Public water system has the same meaning as defined in Section 116275 of the Health and Safety Code.
(t)Recharge area means the area that supplies water to an aquifer in a groundwater basin.
(u)State small water system has the same meaning as defined in Section 116275 of the Health and Safety Code.
(v)Sustainability goal means the existence and implementation of one or more groundwater sustainability plans that achieve sustainable groundwater management by identifying and causing the implementation of measures targeted to ensure that the applicable basin is operated within its sustainable yield.
(w)Sustainable groundwater management means the management and use of groundwater in a manner that can be maintained during the planning and implementation horizon without causing undesirable results.
(x)Sustainable yield means the maximum quantity of water, calculated over a base period representative of long-term conditions in the basin and including any temporary surplus, that can be withdrawn annually from a groundwater supply without causing an undesirable result.
(y)Undesirable result means one or more of the following effects caused by groundwater conditions occurring throughout the basin:
(1)Chronic lowering of groundwater levels indicating a significant and unreasonable depletion of supply if continued over the planning and implementation horizon. Overdraft during a period of drought is not sufficient to establish a chronic lowering of groundwater levels if extractions and recharge are managed as necessary to ensure that reductions in groundwater levels or storage during a period of drought are offset by increases in groundwater levels or storage during other periods.
(2)Significant and unreasonable reduction of groundwater storage.
(3)Significant and unreasonable seawater intrusion.
(4)Significant and unreasonable degraded water quality, including the migration of contaminant plumes that impair water supplies.
(5)Significant and unreasonable land subsidence that substantially interferes with surface land uses.
(6)Depletions of interconnected surface water that have significant and unreasonable adverse impacts on beneficial uses of the surface water.
(z)Water budget means an accounting of the total groundwater and surface water entering and leaving a basin including the changes in the amount of water stored.
(aa)Watermaster means a watermaster appointed by a court or pursuant to other law.
(ab)Water year means the period from October 1 through the following September 30, inclusive.
(ac)Wellhead protection area means the surface and subsurface area surrounding a water well or well field that supplies a public water system through which contaminants are reasonably likely to migrate toward the water well or well field.
SEC. 6.SEC. 4.Section 10722.2 of the Water Code is amended to read:10722.2.(a)A local agency or an entity directed by the court in an adjudication action to file the request may request that the department revise the boundaries of a basin, including the establishment of new subbasins. A request shall be supported by the following information:
(1)Information demonstrating that the proposed adjusted basin can be the subject of sustainable groundwater management.
(2)Technical information regarding the boundaries of, and conditions in, the proposed adjusted basin.
(3)Information demonstrating that the entity proposing the basin boundary adjustment consulted with interested local agencies and public water systems in the affected basins before filing the proposal with the department.
(4)Other information the department deems necessary to justify revision of the basins boundary.
(b)By January 1, 2016, the department shall adopt regulations regarding the information required to comply with subdivision (a), including the methodology and criteria to be used to evaluate the proposed revision. The department shall adopt the regulations, including any amendments thereto, authorized by this section as emergency regulations in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). The adoption of these regulations is an emergency and shall be considered by the Office of Administrative Law as necessary for the immediate preservation of the public peace, health and safety, or general welfare. Notwithstanding the Administrative Procedure Act, emergency regulations adopted by the department pursuant to this section shall not be subject to review by the Office of Administrative Law and shall remain in effect until revised by the department.
(c)Methodology and criteria established pursuant to subdivision (b) shall address all of the following:
(1)How to assess the likelihood that the proposed basin can be sustainably managed.
(2)How to assess whether the proposed basin would limit the sustainable management of adjacent basins.
(3)How to assess whether there is a history of sustainable management of groundwater levels in the proposed basin.
(d)Prior to adopting the regulations pursuant to subdivision (b), the department shall conduct three public meetings to consider public comments. The department shall publish the draft regulations on its Internet Web site at least 30 days before the public meetings. One meeting shall be conducted at a location in northern California, one meeting shall be conducted at a location in the central valley of California, and one meeting shall be conducted at a location in southern California.
(e)The department shall provide a copy of its draft revision of a basins boundaries to the California Water Commission. The California Water Commission shall hear and comment on the draft revision within 60 days after the department provides the draft revision to the commission.
SEC. 7.Section 10735 of the Water Code is amended to read:10735.As used in this chapter and Chapter 12 (commencing with Section 10737), the following terms have the following meanings:
(a)Condition of long-term overdraft means the condition of a groundwater basin where the average annual amount of water extracted for a long-term period, generally 10 years or more, exceeds the long-term average annual supply of water to the basin, plus any temporary surplus. Overdraft during a period of drought is not sufficient to establish a condition of long-term overdraft if extractions and recharge are managed as necessary to ensure that reductions in groundwater levels or storage during a period of drought are offset by increases in groundwater levels or storage during other periods.
(b)Person means any person, firm, association, organization, partnership, business, trust, corporation, limited liability company, or public agency, including any city, county, city and county, district, joint powers authority, state, or any agency or department of those entities. Person includes, to the extent authorized by federal or tribal law and subject to the limitations described in subdivisions (c) and (d) of Section 10720.3, the United States, a department, agency or instrumentality of the federal government, an Indian tribe, an authorized Indian tribal organization, or interstate body.
(c)Probationary basin means a basin for which the board has issued a determination under Section 10735.2.
(d)Significant depletions of interconnected surface waters means reductions in flow or levels of surface water that is hydrologically connected to the basin such that the reduced surface water flow or levels have a significant and unreasonable adverse impact on beneficial uses of the surface water.
SEC. 8.Section 10735.8 of the Water Code is amended to read:10735.8.(a)The board, after notice and a public hearing, may adopt an interim plan for a probationary basin.
(b)The interim plan shall include all of the following:
(1)Identification of the actions that are necessary to correct a condition of long-term overdraft or a condition where groundwater extractions result in significant depletions of interconnected surface waters, including recommendations for appropriate action by any person.
(2)A time schedule for the actions to be taken.
(3)A description of the monitoring to be undertaken to determine effectiveness of the plan.
(c)The interim plan may include the following:
(1)Restrictions on groundwater extraction.
(2)A physical solution.
(3)Principles and guidelines for the administration of rights to surface waters that are connected to the basin.
(d) Except as provided in subdivision (e), the interim plan shall be consistent with water right priorities, subject to Section 2 of Article X of the California Constitution.
(e)The board shall include in its interim plan a groundwater sustainability plan, or any element of a plan, that the board finds complies with the sustainability goal for that portion of the basin or would help meet the sustainability goal for the basin. Where, in the judgment of the board, an adjudication action can be relied on as part of the interim plan, either throughout the basin or in an area within the basin, the board may rely on, or incorporate elements of, that adjudication into the interim plan adopted by the board.
(f)In carrying out activities that may affect the probationary basin, state entities shall comply with an interim plan adopted by the board pursuant to this section unless otherwise directed or authorized by statute and the state entity shall indicate to the board in writing the authority for not complying with the interim plan.
(g)(1)After the board adopts an interim plan under this section, the board shall determine if a groundwater sustainability plan or an adjudication action is adequate to eliminate the condition of long-term overdraft or condition where groundwater extractions result in significant depletions of interconnected surface waters, upon petition of either of the following:
(A)A groundwater sustainability agency that has adopted a groundwater sustainability plan for the probationary basin or a portion thereof.
(B)A person authorized to file the petition by a judicial order or decree entered in an adjudication action in the probationary basin.
(2)The board shall act on a petition filed pursuant to paragraph (1) within 90 days after the petition is complete. If the board, in consultation with the department, determines that the groundwater sustainability plan or adjudication action is adequate, the board shall rescind the interim plan adopted by the board for the probationary basin, except as provided in paragraphs (3) and (4).
(3)Upon request of the petitioner, the board may amend an interim plan adopted under this section to eliminate portions of the interim plan, while allowing other portions of the interim plan to continue in effect.
(4)The board may decline to rescind an interim plan adopted pursuant to this section if the board determines that the petitioner has not provided adequate assurances that the groundwater sustainability plan or judicial order or decree will be implemented.
(5)This subdivision is not a limitation on the authority of the board to stay its proceedings under this section or to rescind or amend an interim plan adopted pursuant to this section based on the progress made by a groundwater sustainability agency or in an adjudication action pursuant to Chapter 12 (commencing with Section 10737), even if the board cannot make a determination of adequacy in accordance with paragraph (1).
(h)Before January 1, 2025, the state board shall not establish an interim plan under this section to remedy a condition where the groundwater extractions result in significant depletions of interconnected surface waters.
(i)The boards authority to adopt an interim plan under this section does not alter the law establishing water rights priorities or any other authority of the board.
SEC. 9.Chapter 12 (commencing with Section 10737) is added to Part 2.74 of Division 6 of the Water Code, to read:12.Determination of Rights to Groundwater1.General Provisions10737.(a)This chapter establishes a timely and comprehensive method for determining rights to groundwater in furtherance of the objectives of this part.
(b)This chapter shall be applied and interpreted consistently with all of the following:
(1)Protecting water rights consistent with Section 2 of Article X of the California Constitution.
(2)Conducting an adjudication action in a manner that promotes efficiency, reduces unnecessary delays, provides due process, and is consistent with the achievement of the sustainability goal within the timeframes of this part.
(3)Encouraging the compromise and settlement of adjudication actions.
(4)Establishing procedures by which courts may conduct comprehensive determinations of all rights and priorities to groundwater in a basin.
(5)Providing for the conduct of an adjudication action consistent with Winters v. U.S. (1908) 207 U.S. 564, the McCarran Amendment (codified at 43 U.S.C. Sec. 666), and any other federal law regarding the determination of federal or tribal water rights, as applicable.
(6)Providing notice and due process sufficient to enable a court in an adjudication action to determine and establish the priority for unexercised water rights consistent with the principles established in In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339.
10737.2.In an adjudication action for a basin required to have a groundwater sustainability plan under this part, the court shall manage the proceedings in a manner that minimizes interference with the timely completion and implementation of a groundwater sustainability plan, avoids redundancy and unnecessary costs in the development of technical information and a physical solution, and is consistent with the attainment of the sustainability goal within the timeframes established by this part.
10737.4.Except as otherwise provided in this chapter, a court shall determine rights to groundwater using the procedures codified in the Code of Civil Procedure.
2.Scope of the Action10738.(a)Except as provided in subdivision (b), this chapter applies to either of the following:
(1)An adjudication action in a high- or medium-priority basin.
(2)Where a court considers the need for effective determination and administration of water rights and priorities, the purposes of this part, and the interest in judicial economy, and determines that proceedings in an adjudication action should be conducted under this chapter.
(b)This chapter does not apply to any of the following adjudication actions:
(1)An adjudication action that concerns only allegations that a groundwater extraction facility, or a group of facilities, is interfering with another groundwater extraction facility or facilities and that does not require an allocation of the basins groundwater supply.
(2)An adjudication action that concerns only claims to extract, or prevent interference with extractions from, water stored in a basin as a result of artificial recharge and does not involve an allocation of the basins groundwater supply.
(3)An adjudication action that can be resolved among a limited number of parties and does not involve a comprehensive allocation of the basins groundwater supply.
10738.2.(a)The court may determine all rights to groundwater in an adjudication action for a basin, whether based upon appropriation, overlying right, or other basis of right.
(b)As to the right to groundwater of each party, the courts final judgment in an adjudication action may declare the priority, amount, purposes of use, extraction location, and place of use of the water, together with appropriate injunction relief, subject to terms adopted by the court to implement a physical solution in the adjudication action.
10738.4.(a)(1)Except as otherwise provided in this section, the boundaries of the area subject to an adjudication action shall be consistent with the boundaries of a basin.
(2)If the department revises the boundaries of a basin under Section 10722.2 or subdivision (b) of Section 12924 after an adjudication action has been initiated, the court may revise the boundaries of the area subject to the adjudication action as the interest of justice and the objectives of this chapter require.
(3)Upon a showing that a revision of the basin boundaries would further a fair and effective determination of water rights, the court may direct any of the following to submit a request to the department for revision of the basin boundaries in accordance with Section 10722.2:
(A)A party to the adjudication action.
(B)The board, if the court has made a reference under Part 3 (commencing with Section 2000) of Division 2.
(C)A special master, if one has been appointed.
(b)If the court finds that including an interconnected surface water body or subterranean stream flowing through known and definite channels is necessary to the fair and effective determination of the rights to a basin, the court may require the joinder of persons who claim rights to divert and use water from that surface water body or subterranean stream in the adjudication action.
(c)If the court finds that claims of right to extract or divert only minor quantities of water, not to exceed five acre-feet per year, have no material effect on the rights of other parties, the court may exempt those claimants with respect to those claims for only minor quantities of water. A person exempted pursuant to this subdivision may elect to continue as a party to the adjudication action.
3.Selection of Judge10739.(a)A judge of a superior court of a county within which a portion of the groundwater adjudication lies shall be disqualified. The chair of the Judicial Council shall assign a judge to preside in all proceedings in an adjudication action.
(b)An adjudication action is presumed to be a complex action within the meaning of Rule 3.400 of the California Rules of Court unless a party demonstrates that the comprehensive adjudication is not complex.
(c)Sections 170.6 and 394 of the Code of Civil Procedure shall not apply in an adjudication action.
(d)(1)Notwithstanding subdivision (b) of Section 10726.6, an action against a groundwater sustainability agency that is located in a basin that is being adjudicated under this chapter shall be subject to transfer, coordination, and consolidation with the adjudication action, as appropriate, if the action concerns the adoption, substance, or implementation of a groundwater sustainability plan, or the agencys compliance with the timelines in this part.
(2)The judge assigned by the Judicial Council pursuant to subdivision (a) shall determine whether transfer, coordination, or consolidation is appropriate.
4.Electronic Service10739.6.Except for the service of a complaint pursuant to Article 5 (commencing with Section 10740), the service of pleadings and papers in an adjudication action shall occur electronically to the greatest extent possible. Each party shall serve documents by electronic mail, or other equivalent electronic means, to the greatest extent possible. To enable electronic service of pleadings and papers, the attorney of record or a party representing themselves shall include an electronic mail address for service in the captions of pleadings and papers that the attorney or party files in the adjudication action.
5.Notice and Service of Complaint10740.(a)The plaintiff shall publish notice of the complaint pursuant to Section 6065 of the Government Code in each county that overlies the basin or a portion of the basin.
(b)(1)The plaintiff shall provide notice of the adjudication action to all of the following:
(A)A groundwater sustainability agency that overlies any portion of the basin.
(B)A city, county, or city and county that overlies any portion of the basin.
(C)A district with authority to manage or replenish groundwater resources of the basin in whole or in part.
(D)The operator of a public water system or state small water system that uses groundwater from the basin to supply water service.
(E)A California Native American tribe that is on the contact list maintained by the Native American Heritage Commission.
(F)The Attorney General, the board, the department, and the Department of Fish and Wildlife.
(G)A federal department or agency that manages a federal reservation that in any portion overlies the basin.
(H)A person identified under subdivision (a) or (b) of Section 10740.4 who is not a party to the action.
(I)An owner of real property in the basin, if a person who receives notice under Section 10740.2 notifies the plaintiff of the address of the owner of real property subject to the property tax bill.
(J)A person who makes a request in writing, including electronic mail.
(2)The plaintiff may provide notice required pursuant to this subdivision by first class mail or electronic mail.
(3)(A)Except as provided in subparagraph (B), the plaintiff shall provide notice required pursuant to this subdivision as follows:
(i)To any person entitled to notice under subparagraphs (A) to (G), inclusive, of paragraph (1) within 15 days of the filing of the complaint.
(ii)To any person entitled to notice under subparagraphs (H) to (J), inclusive, of paragraph (1) within 30 days of receipt of the name and address of the person entitled to notice.
(B)The plaintiff may take additional time as is reasonably necessary before providing notice under this subdivision if the plaintiff determines that additional time is necessary to identify a person entitled to notice under this subdivision, to confirm the accuracy of the name or address of that person, or to determine whether the conditions requiring notice have been satisfied.
(4)The plaintiff is not required to provide notice under this subdivision to a person who has already been served or intervened in the adjudication action.
10740.2.(a)When the plaintiff files the complaint, the plaintiff shall lodge all of the following with the court:
(1)(A)A draft notice titled NOTICE OF COMMENCEMENT OF GROUNDWATER BASIN ADJUDICATION in no less than 20-point font and the following text printed immediately below the draft notice title in no less than 14-point font:
THIS NOTICE IS IMPORTANT. ANY RIGHTS YOU CLAIM TO PUMP OR STORE GROUNDWATER FROM THE BASIN IDENTIFIED IN THIS NOTICE MAY BE AFFECTED BY A LAWSUIT INITIATED BY THE COMPLAINT SUMMARIZED BELOW.
A copy of the complaint may be obtained by contacting the plaintiff or the plaintiffs attorney identified in this notice. If you claim rights to pump or store groundwater within the basin, either now or in the future, you may become a party to this lawsuit by filing an answer to the lawsuit on or before the deadline specified in this notice. You may file an answer by completing the attached form answer, filing it with the court indicated in this notice, and sending a copy of the form answer to the plaintiff or the plaintiffs attorney. The form answer is provided for your convenience. Should you choose to file the form answer, it will serve as an answer to all complaints and cross-complaints filed in this case.
It is the duty of all persons who receive this notice and who claim rights to pump or store groundwater within the basin to appear in the lawsuit by the date specified below. All persons who claim rights to pump or store groundwater within the basin will be required to make proof of their claims within six months of their appearance in the lawsuit. Any claimant who fails to appear and submit proof of his or her claim shall be held to have forfeited all rights to pump or store groundwater. At the conclusion of the lawsuit, the superior court will enter a decree determining all water rights of the basin, whether based upon appropriation, overlying right, or other basis of right. You are encouraged to seek the advice of an attorney promptly.
(B)The following information shall be provided immediately following the text described in subparagraph (A):
(i)The name of the basin that is the subject of the adjudication action and a link to the Internet Web site address where the department has posted a map of the basin.
(ii)A space to be completed with the case number assigned to the adjudication action, and the name and address of the court and department to which the action is assigned.
(iii)The name, address, telephone number, and electronic mail address of the plaintiff, or plaintiffs attorney, from which the complaint may be obtained and to whom a copy of the form answer should be sent.
(iv)A summary of the causes of action alleged in the complaint and the relief sought. The summary shall not exceed 25 lines.
(v)A date by which persons receiving the notice must appear in the action.
(2)(A)A draft form answer titled ANSWER TO ADJUDICATION COMPLAINT in no less than 20-point font and the following text printed immediately below the draft form answer title in no less than 14-point font:
The undersigned denies all material allegations in the complaint or cross-complaint in this action that seeks to adjudicate rights in the groundwater basin and asserts all applicable affirmative defenses to that complaint.
(B)Notwithstanding any other law, the filing of an answer in the form described in subparagraph (A) in an adjudication action is sufficient to put at issue all material allegations and applicable affirmative defenses to the complaint in the adjudication action.
(b)Within 30 days of the assignment of a judge by the Judicial Council, the plaintiff shall file a motion for approval of plaintiffs draft notice and draft form answer filed pursuant to subdivision (a).
(c)Once the court approves the draft notice, service of that notice in accordance with this section shall substitute for the summons otherwise provided for in civil actions pursuant to Section 412.20 of the Code of Civil Procedure.
(d)(1)Following a court order approving the notice and form answer and authorizing service of landowners pursuant to this section, the plaintiff shall do all of the following:
(A)Identify the assessor parcel numbers and physical addresses of all real property within the basin and the names and addresses of all holders of fee title to real property within the basin using the records of the assessor or assessors of the county or counties in which the basin to be adjudicated lies. The plaintiff shall provide the court and all parties with notice of its acquisition of, or sufficient access to, this information.
(B)Mail, by registered mail or certified mail, return receipt requested, the notice, complaint, and form answer to all holders of fee title to real property in the basin. If the physical address of the real property differs from the address of the holder of fee title, the notice, complaint, and form answer shall be mailed by registered or certified mail, return receipt requested, to the physical address of the real property and the address of the holder of fee title.
(C)If return receipt is not received for a parcel of real property, the plaintiff shall post a copy of the notice, complaint, and form answer in a conspicuous place on the real property.
(D)Within 20 days of the court order, publish the notice at least once per week for four consecutive weeks in one or more newspapers of general circulation in each county overlying the basin in whole or in part.
(2)Service pursuant to this subdivision is not required if the real property is part of a class of water users that are otherwise noticed in accordance with this chapter.
(e)Upon completion of the mailing pursuant to subdivision (d), the plaintiff shall file with the court a notice of the completion of the mailing.
(f)Within 60 days after service is authorized, the plaintiff shall prepare and file a notice of the adjudication action in the office of the county recorder of each county overlying the basin in whole or in part. The notice shall be recorded in a manner so as to ensure that a person researching the title of a parcel will find the notice.
(g)The plaintiff shall serve the court-approved notice and form answer by first class mail to any entity that is known, or with reasonable diligence can be determined, to hold title to real property in the basin but is exempt from property tax.
(h)The court may authorize any other procedures it finds appropriate and necessary to provide notice to persons who may hold groundwater rights in the basin.
(i)The court may require notice to be made available in languages other than English.
(j)Within 15 days of the courts approval of the notice and form answer, the plaintiff shall provide the notice and form answer to the department and each county and groundwater sustainability agency that overlies any portion of the basin. The department, and each county and groundwater sustainability agency that overlies any portion of the basin and has an Internet Web site, shall do the following:
(1)Post the notice and form answer on their Internet Web site within 15 days of receipt.
(2)Provide a link to the notice and form answer from their Internet Web site home page.
(3)Maintain the posting and link pursuant to paragraphs (1) and (2) for the entire time that the adjudication action is pending. The plaintiff shall notify the department and each county and groundwater sustainability agency when the adjudication action is no longer pending.
10740.4.(a)(1)Within 15 days of the courts approval of the notice under Section 10740.2, the plaintiff shall request from the following entities the names and addresses of persons reporting extractions within the basin under this part, or Part 5 (commencing with Section 4999) or Part 5.2 (commencing with Section 5200) of Division 2:
(A)The board.
(B)Any local agency designated as a board-designated local area that includes the basin, or a portion of the basin, under Section 5009.
(C)Any groundwater sustainability agency for the basin or a portion of the basin.
(2)The entities described in subparagraphs (A) to (C), inclusive, of paragraph (1) shall provide the plaintiff with the names, mailing addresses, and electronic mail addresses, if available, within 45 days of the plaintiffs request. Additionally, the board shall provide the mailing address and electronic mail address, if available, of any person known to the board who holds a permit or license authorizing underground storage in the basin or who claims a right to divert water for underground storage in the basin.
(b)If extractions in the basin or a portion of the basin are not subject to reporting requirements under this part, or Part 5 (commencing with Section 4999) or Part 5.2 (commencing with Section 5200) of Division 2, the plaintiff shall request the names and addresses of all customers in the area who are supplied power to operate groundwater extraction facilities in the basin, as reflected in the utility records, from any investor-owned utility or municipal utility that provides electrical power in the area. The utility shall provide the plaintiffs with the names, mailing addresses, and electronic mail addresses, if available, within 45 days of the plaintiffs request.
(c)Upon request, the plaintiff shall provide reimbursement for the reasonable costs incurred under this section to an entity described in subparagraphs (A) to (C), inclusive, of paragraph (1) of subdivision (a) or a utility described in subdivision (b). The entity or utility shall incur no civil liability by reason of its compliance with this section.
10740.6.(a)The plaintiff shall serve the complaint on any person known to extract groundwater within the basin. Service may be by personal service or by other method as provided by Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure.
(b)The plaintiff shall serve the complaint on any person known to own real property that overlies the basin and that has not been sent the court-approved notice and form answer. Service shall be by first class mail.
(c)Service on the United States shall be made in accordance with Section 666 of Title 43 of the United States Code.
(d)Section 389 of the Code of Civil Procedure shall not apply to a failure to join the United States or an Indian tribe to a comprehensive adjudication.
10740.8.(a)Whenever proceedings are instituted to determine rights to water under this chapter, it is the duty of all claimants interested in the proceedings and having notice of the proceedings pursuant to this chapter to appear in the proceedings and to submit proof of their claims at the time, and in the manner, required by this chapter.
(b)The fulfillment of the notice and service provisions of this chapter shall be deemed effective service of process of the complaint and notice on all interested parties of the adjudication action for purposes of establishing in rem jurisdiction and the comprehensive effect of the adjudication action.
6.Intervention10741.Any of the following may intervene in an adjudication action under this chapter:
(a)The groundwater sustainability agency for the basin or portion of the basin.
(b)Any city, county, or city and county, that overlies any portion of the basin.
(c)Any person upon an ex parte application that demonstrates that the person holds fee simple ownership in a parcel in the basin or extracts or stores water in the basin. A person filing an ex parte application pursuant to this subdivision shall give notice to the plaintiff consistent with the California Rules of Court.
7.Initial Disclosure10741.5.(a)Except as otherwise ordered by the court, a party shall serve on the other parties and the special master, if one is appointed, an initial disclosure within six months of appearing in the adjudication action that includes all of the following information:
(1)The name, address, telephone number, and electronic mail address of the party and, if applicable, of the partys attorney.
(2)The quantity of groundwater extracted from the basin by the party and the method of measurement used by the party or the partys predecessor in interest for each of the previous five calendar years preceding the filing of the complaint.
(3)A general description of the purpose to which the water has been put.
(4)The area in which the water has been used.
(5)The location of each well or other source through which groundwater has been extracted.
(6)The type of water right or rights claimed by the party for the extraction of groundwater.
(7)Any claims for increased or future use of groundwater.
(8)The quantity of any beneficial use of any alternative water use that the party claims as its use of groundwater under any applicable law, including, but not limited to, Sections 1005.1, 1005.2, 1005.4, 1010, or 1011.
(9)Identification of all surface water rights and contracts that the party claims provides the basis for its water right claims in the adjudication action.
(10)The quantity of any replenishment of water to the basin that augmented the basins native water supply, resulting from the intentional storage of imported or nonnative water in the basin, managed recharge of surface water, or return flows resulting from the use of imported water or nonnative water on lands overlying the basin by the party, or the partys representative or agent, during each of the five calendar years immediately preceding the filing of the complaint.
(11)The names, addresses, telephone numbers, and electronic mail addresses of all persons possessing information that supports the partys disclosures.
(12)Any other facts that tend to prove the partys claimed water right.
(b)A party shall make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its initial disclosures because it has not fully investigated the case, because it challenges the sufficiency of another partys disclosures, or because another party has not made its disclosures.
(c)A party that has made its initial disclosures, as described in subdivision (a), or that has responded to another partys discovery request, shall supplement or correct a disclosure or response in all of the following situations:
(1)In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.
(2)If the party extracts groundwater from the basin after the complaint is filed. The supplement filed under this paragraph shall report the quantity of water involved and be filed within 90 days of the end of the calendar year.
(3)As ordered by the court.
(d)To the greatest extent possible, a party shall serve its initial disclosures electronically. If it is not possible for the party to serve its disclosures electronically, the party shall serve the disclosures in an electronic format saved on a portable storage media device such as a compact disc or flash drive.
(e)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(f)A partys disclosures under this section shall be verified under penalty of perjury as being true and correct to the best of the partys knowledge.
8.Case Management10742.(a)In managing an adjudication action, the court shall convene a case management conference as provided by the California Rules of Court.
(b)In an initial case management conference, or as soon as practicable, the court should consider the following, in addition to other matters:
(1)Determining whether to seek adjustment of the basin boundaries pursuant to Section 10738.4.
(2)Staying the action pursuant to Article 9 (commencing with Section 10742.5).
(3)Appointing a special master pursuant to Article 10 (commencing with Section 10743).
(4)Scheduling a hearing on a preliminary injunction pursuant to Article 11 (commencing with Section 10743.5).
(5)Dividing the case into phases to resolve legal and factual issues.
(6)Issuing orders to ensure that issues resolved in one phase are not relitigated in another.
(7)Limiting discovery to correspond to the phases.
(8)Scheduling early resolution of claims to prescriptive rights.
(9)Formation of a class or classes of an overlying groundwater rights holder pursuant to the criteria specified in Section 382 of the Code of Civil Procedure.
9.Stay10742.5.(a)Upon the motion of any party to an adjudication action, a court may stay an adjudication action for a period of up to one year, subject to renewal in the courts discretion upon a showing of good cause, in order to facilitate any of the following:
(1)The adoption of a groundwater sustainability plan that provides for a physical solution or may otherwise address issues in the adjudication action.
(2)The development of technical studies that may be useful to the parties in the adjudication action.
(3)The voluntary mediation or participation in a settlement conference on all, or a portion of, the subject matters or legal questions identified in the adjudication action.
(4)The compromise and settlement of the adjudication action or issues in the adjudication action.
(b)A stay pursuant to this section shall not stay, or otherwise delay, the parties obligations to provide initial disclosures pursuant to Article 7 (commencing with Section 10741.5) unless the court determines the initial disclosures will not benefit resolution of the comprehensive adjudication.
10.Special Master10743.(a)The court may appoint one or more special masters, whose duties may include the following:
(1)Investigating technical and legal issues, as directed by the court. The special master shall compile a report of findings in accordance with Section 10743.2.
(2)Conducting joint factfinding with the parties, their designees, or both.
(3)Investigating the need for, and developing the proposal for, a preliminary injunction pursuant to Article 11 (commencing with Section 10743.5).
(4)Performing other tasks the court may deem appropriate.
(b)The court shall fix a special masters compensation on the basis and terms stated in the appointing order. The court may set a new basis and terms for the special master after giving notice and an opportunity to be heard. The court shall allocate payment for the cost of the special master among the parties in an amount and a manner that the court deems equitable. The court may waive a partys payment obligation upon a showing of good cause.
(c)The court may request that the board or department recommend candidates for appointment as special master or review the qualifications of candidates.
(d)This section does not limit the authority of the court to make a reference pursuant to Chapter 1 (commencing with Section 2000) of Part 3 of Division 2.
(e)This section does not limit the authority to appoint a watermaster pursuant to Chapter 3 (commencing with Section 4050) of Part 4 of Division 2 or any other law.
10743.2.(a)The special master shall make available a draft report and provide at least 60 days for the parties to submit written objections to the draft report.
(b)An objection to the draft report shall identify the specific grounds and evidence on which the objection is based.
(c)The special master may notice and hold hearings, as the special master deems appropriate, to gather information or address issues raised in the objections to the draft report.
(d)The special master shall consider the objections to the draft report and prepare a final report that shall be filed with the court.
11.Preliminary Injunction10743.5.(a)Upon a showing that the basin is in a condition of long-term overdraft, the court may, upon notice and a hearing, issue a preliminary injunction.
(b)The following information shall be admissible and shall constitute prima facie evidence of a condition of long-term overdraft:
(1)Bulletins and other reports of the department.
(2)A report of a special master indicating that a condition of long-term overdraft exists.
(c)A preliminary injunction may include, but is not limited to, any of the following:
(1)A moratorium on new or increased appropriations of water.
(2)A limitation on or reduction in the diversion or extraction of water.
(3)An allocation among the parties establishing amounts of extraction allowed during the pendency of the action.
(4)Procedures for voluntary transfers.
(d)The court shall issue a preliminary injunction upon a determination of all of the following:
(1)The basin is in a condition of long-term overdraft.
(2)The basin is a probationary basin or is not in compliance with the planning deadlines in subdivision (a) of Section 10720.7.
(3)There is no interim plan in effect for the basin pursuant to Section 10735.8.
(e)The court may provide a schedule for further reductions in extractions over a period of years if the court finds that doing so appears reasonably necessary to meet the sustainability goal within the timelines provided in subdivision (b) of Section 10727.2.
(f)The terms of a preliminary injunction shall not determine the rights in the final judgment of the action.
(g)No bond or undertaking shall be required for the issuance of a preliminary injunction.
(h)The court may appoint a watermaster to oversee the enforcement of a preliminary injunction.
12.Expert Witnesses10744.(a)In addition to the other disclosures required by this chapter, a party shall disclose to the other parties the identity of any expert witness it may use at trial to present evidence.
(b)Unless otherwise ordered by the court, this disclosure shall be accompanied by a written report, prepared and signed by the expert witness, if the expert witness is retained or specially employed by the party offering the expert witness to testify as an expert in the action, or if the expert witnesss duties as the partys employee regularly involve giving expert testimony. The report shall contain all of the following:
(1)A complete statement of all opinions the expert witness will express and the basis and reasons for those opinions.
(2)The facts or data considered by the expert witness in forming his or her opinions.
(3)Any exhibits the expert witness will use to summarize or support his or her opinion.
(4)The expert witnesss qualifications, including a list of all publications authored by the expert witness in the previous 10 years.
(5)A list of all other cases in which the expert witness testified, as an expert at trial or by deposition, in the last five years.
(6)A statement of the compensation to be paid for the witnesss work and testimony in the adjudication action.
(c)If subdivision (b) does not apply to an expert, the witnesss disclosure shall include both of the following:
(1)The subject matter on which the expert witness is expected to present evidence.
(2)A summary of the expert witnesss opinions and the facts or data considered by the expert witness in forming his or her opinion.
(d)Unless otherwise stipulated by the parties, a party shall make the disclosures of any expert witness it intends to present at trial, except for an expert witness presented solely for purposes of impeachment or rebuttal, at the times and in the sequence ordered by the court. If there is no stipulation or court order, the disclosures of an expert witness shall be made as follows:
(1)No sooner than 30 days after the courts entry of an order establishing the scope of the relevant phase of the adjudication action.
(2)Except for a supplemental expert witness described in paragraph (3), no later than 60 days before the date set for trial for the relevant phase of the adjudication action.
(3)For a supplemental expert witness who will express an opinion on a subject to be covered by another expert witness designated by an adverse party that was not among the subjects covered by an expert witness initially disclosed by the party offering the supplemental expert witness, no more than 20 days after the initial expert witness disclosure date.
(e)The court may modify the disclosure requirements of subdivisions (b) through (d), inclusive, for expert witnesses presented solely for purposes of impeachment or rebuttal. In modifying the disclosure requirements, the court shall adopt disclosure requirements that expedite the courts consideration of the issues presented and shall ensure that expert testimony presented solely for the purposes of impeachment or rebuttal is strictly limited to the scope of the testimony that it intends to impeach or rebut.
(f)(1) A party whose expert witness has made a disclosure pursuant to this section shall promptly supplement or correct the expert witnesss disclosure in either of the following instances:
(A)In a timely manner if the party learns that in some material respect the disclosure is incomplete or incorrect, if the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.
(B)As ordered by the court.
(2)A partys duty to supplement or correct its expert witnesss disclosure includes the information included in the report and the information given during the expert witnesss deposition. Unless otherwise stipulated by the parties or ordered by the court, any supplementation or correction shall occur at least 14 days before trial of the applicable phase of the adjudication action.
(3)The court may authorize a supplemental deposition of an expert witness based on a supplemental disclosure made pursuant to this subdivision. The court shall appropriately condition the authorization of a supplemental deposition of an expert witness to ensure the expeditious completion of the applicable phase of the adjudication action. The court may require the party whose expert makes the supplemental disclosure to pay some or all of the costs associated with the supplemental deposition.
(g)If a party or its expert witness fails to comply with this section, the court may, upon notice and hearing, exclude the expert witnesss testimony from trial, authorize additional depositions of the expert witness at the partys expense, or take other appropriate action.
13.Written Testimony10744.5.(a)A court in an adjudication action may require the parties to submit written testimony of witnesses in the forms of affidavits or declarations under penalty of perjury in lieu of presenting live testimony. The required written testimony may include, but is not limited to, expert witness opinions and testimony that authenticates documentary evidence. The court may order that the written testimony constitutes the entirety of the witnesss direct testimony, require the written testimony to include any exhibits offered in support of the written testimony, and, in the case of written testimony of an expert witness, require a statement of the witnesss qualifications.
(b)If the court requires the submission of written testimony pursuant to subdivision (a), a complete copy of the direct testimony shall be served at least 21 days before trial. A complete copy of any rebuttal testimony shall be served no later than the first day of trial.
(c)If the contents of the written testimony would have been admissible if the witness testified orally, the written testimony shall be received by the court as a documentary exhibit provided that the witness whose written testimony is being offered is made available for cross-examination by all parties.
14.Physical Solution10745.(a)The court shall have the authority and the duty to impose a physical solution on the parties in an adjudication action, consistent with Section 2 of Article X of the California Constitution, where necessary.
(b)Prior to adopting a physical solution presented by a party or considered on the courts own motion, the court shall determine whether a physical solution is required to prevent waste and unreasonable use by Section 2 of Article X of the California Constitution after considering any existing groundwater sustainability plan or program.
15.Stipulated Judgment10746.(a)If a party, or a group of parties, submits a proposed stipulated judgment, the court may adopt the proposed stipulated judgment if the court finds that it meets all of the following criteria:
(1)It is consistent with Section 2 of Article X of the California Constitution.
(2)It treats objecting parties and any persons who have claims that are exempted under Section 10738.4 equitably as compared to the stipulating parties.
(3)It will not substantially impair the ability of a groundwater sustainability agency, the board, or the department to comply with this part and to achieve the sustainability goal.
(b)(1)The court may adopt a proposed stipulated judgment, as applied to the stipulating parties, if the stipulation meets the criteria described in subdivision (a) and it is submitted by a party, or a group of parties, and supported by either of the following:
(A)More than 50 percent of all named parties in the adjudication action.
(B)Groundwater extractors responsible for at least 75 percent of the groundwater production in the basin during the past five calendar years.
(2)A party objecting to a proposed stipulated judgment pursuant to this subdivision shall demonstrate, by a preponderance of the evidence, that the proposed stipulated judgment does not satisfy one or more criteria described in subdivision (a) or that it substantially violates the partys water rights. If the objecting party is unable to make this showing, the court may impose the proposed stipulated judgment on the objecting party. The objecting party may be subject to a preliminary injunction under Article 11 (commencing with Section 10743.5) while the partys objections remain unresolved.
10746.2.Chapter 11 (commencing with Section 10735) shall not apply to a stipulated judgment approved by the court pursuant to Section 10746 if all of the following apply:
(a)The proposed stipulated judgment meets the criteria of subdivision (a) of Section 10746.
(b)All groundwater sustainability agencies within the basin support the proposed stipulated judgment.
(c)A local agency has submitted the proposed stipulated judgment to the department for evaluation and assessment pursuant to Section 10733.4 or paragraph (2) of subdivision (b) of Section 10733.6. Notwithstanding subdivision (c) of Section 10733.6, a proposed stipulated judgment may be submitted to the department after January 1, 2017.
(d)The department determines that the proposed stipulated judgment satisfies the objectives of this part for the basin.
16.Judgment Binding on Successors10747.The judgment in an adjudication action under this chapter shall be binding on the parties to the action, each partys successors in interest, including, but not limited to, heirs, executors, administrators, assigns, lessees, licensees, and upon the agents and employees of all these persons, and upon all landowners or other persons claiming rights to extract groundwater from within the basin.
17.Continuing Jurisdiction10748.(a)The court shall have continuing jurisdiction to modify or amend a final judgment in an adjudication action as follows:
(1)In response to new information or changed circumstances.
(2)In the interests of justice.
(3)To ensure that the criteria of subdivision (a) of Section 10746 are met.
(b)When feasible, the judge who heard the original adjudication action should preside over subsequent actions or motions to modify or amend the judgment.
(c)If the court has approved a stipulated judgment not subject to Chapter 11 (commencing with Section 10735) in accordance with Section 10746.2, the department shall submit to the court the assessments and any recommended corrective actions that the department issues pursuant to Section 10733.8. The court, after notice and a hearing, shall determine whether to amend the judgment to adopt the departments recommended corrective actions.
SEC. 10.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
SEC. 5.Chapter 12 (commencing with Section 10737) is added to Part 2.74 of Division 6 of the Water Code, to read:12.Determination of Rights to Groundwater10737.Except as provided in this chapter, an adjudication action to determine rights to groundwater in a basin shall be conducted in accordance with the Code of Civil Procedure, including pursuant to Chapter 7 (commencing with Section 830) of Title 10 of Part 2 of that code.
10737.2.In an adjudication action for a basin required to have a groundwater sustainability plan under this part, the court shall manage the proceedings in a manner that minimizes interference with the timely completion and implementation of a groundwater sustainability plan, 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 within the timeframes established by this part.
10737.4.(a)Chapter 11 (commencing with Section 10735) shall not apply to a stipulated judgment approved by the court pursuant to Section 850 of the Code of Civil Procedure if both of the following apply:
(1)A local agency or a party directed by the court to file the submission submits the judgment to the department for evaluation and assessment pursuant to paragraph (2) of subdivision (b) of Section 10733.6.
(2)The department determines that the judgment satisfies the objectives of this part for the basin.
(b)A party or group of parties proposing a stipulated judgment pursuant to subdivision (b) of Section 850 of the Code of Civil Procedure may submit the proposed stipulated judgment to the department for evaluation and assessment pursuant to paragraph (2) of subdivision (b) of Section 10733.6.
(c)Notwithstanding subdivision (c) of Section 10733.6, a judgment or proposed stipulated judgment pursuant to this section may be submitted to the department after January 1, 2017.
(d)A determination of the department on a submission pursuant to this section is subject to judicial review pursuant to Section 1085 of the Code of Civil Procedure. Venue shall be in the court with jurisdiction over the adjudication action and the case shall be coordinated with the adjudication action.
10737.6.If the department determines that a judgment satisfies the objectives of this part in accordance with paragraph (2) of subdivision (a) of Section 10737.4, the department shall submit to the court the assessments and any recommended corrective actions that the department issues pursuant to Section 10733.8. The court, after notice and, if necessary, an evidentiary hearing, shall determine whether to amend the judgment pursuant to Section 852 of the Code of Civil Procedure to adopt the departments recommended corrective actions.
10737.8.In addition to making any findings required by subdivision (a) of Section 850 of the Code of Civil Procedure or any other law, the court shall not approve entry of judgment in an adjudication action for a basin required to have a groundwater sustainability plan under this part 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 this part and to achieve sustainable groundwater management.
SEC. 6.This act shall only become operative if Assembly Bill 1390 of the 201516 Regular Session is enacted and becomes effective.
Notwithstanding any other law, the state may intervene as a matter of right in any suit brought in any court for determination of rights to water.
SEC. 2.Section 10720.1 of the Water Code is amended to read:10720.1.In enacting this part, it is the intent of the Legislature to do all of the following:
(a)To provide for the sustainable management of groundwater basins.
(b)To enhance local management of groundwater consistent with rights to use or store groundwater and Section 2 of Article X of the California Constitution. It is the intent of the Legislature to preserve the security of water rights in the state to the greatest extent possible consistent with the sustainable management of groundwater.
(c)To establish minimum standards for sustainable groundwater management.
(d)To provide local groundwater agencies with the authority and the technical and financial assistance necessary to sustainably manage groundwater.
(e)To avoid or minimize subsidence.
(f)To improve data collection and understanding about groundwater.
(g)To increase groundwater storage and remove impediments to recharge.
(h)To manage groundwater basins through the actions of local governmental agencies to the greatest extent feasible, while minimizing state intervention to only when necessary to ensure that local agencies manage groundwater in a sustainable manner.
(i)To provide a more efficient and cost-effective groundwater adjudication process that protects water rights, ensures due process, prevents unnecessary delay, and furthers the objectives of this part.
SEC. 3.Section 10720.5 of the Water Code is amended to read:10720.5.(a)Groundwater management pursuant to this part shall be consistent with Section 2 of Article X of the California Constitution. Nothing in this part modifies rights or priorities to use or store groundwater consistent with Section 2 of Article X of the California Constitution, except that in basins designated medium- or high-priority basins by the department, no extraction of groundwater between January 1, 2015, and the date of adoption of a groundwater sustainability plan pursuant to this part, part or the approval by the department of an alternative submitted under Section 10733.6, whichever is sooner, may be used as evidence of, or to establish or defend against, any claim of prescription.
(b)Nothing in this part, or in any groundwater management plan adopted pursuant to this part, determines or alters surface water rights or groundwater rights under common law or any provision of law that determines or grants surface water rights.
(c)Water rights may be determined in an adjudication action pursuant to Chapter 12 (commencing with Section 10737).
SEC. 4.Section 10720.8 of the Water Code is amended to read:10720.8.(a)Except as provided in subdivision (e), subdivisions (e) and (g), this part does not apply to the following adjudicated areas or a local agency that conforms to the requirements of an adjudication of water rights for one of the following adjudicated areas:
(1)Beaumont Basin.
(2)Brite Basin.
(3)Central Basin.
(4)Chino Basin.
(5)Cucamonga Basin.
(6)Cummings Basin.
(7)Goleta Basin.
(8)Lytle Basin.
(9)Main San Gabriel Basin.
(10)Mojave Basin Area.
(11)Puente Basin.
(12)Raymond Basin.
(13)Rialto-Colton Basin.
(14)Riverside Basin.
(15)San Bernardino Basin Area.
(16)San Jacinto Basin.
(17)Santa Margarita River Watershed.
(18)Santa Maria Valley Basin.
(19)Santa Paula Basin.
(20)Scott River Stream System.
(21)Seaside Basin.
(22)Six Basins.
(23)Tehachapi Basin.
(24)Upper Los Angeles River Area.
(25)Warren Valley Basin.
(26)West Coast Basin.
(b)The Antelope Valley basin at issue in the Antelope Valley Groundwater Cases (Judicial Council Coordination Proceeding Number 4408) shall be treated as an adjudicated basin pursuant to this section if the superior court issues a final judgment, order, or decree.
(c)Any groundwater basin or portion of a groundwater basin in Inyo County managed pursuant to the terms of the stipulated judgment in City of Los Angeles v. Board of Supervisors of the County of Inyo, et al. (Inyo County Case No. 12908) shall be treated as an adjudicated area pursuant to this section.
(d)The Los Osos Groundwater Basin at issue in Los Osos Community Service District v. Southern California Water Company [Golden State Water Company] et al. (San Luis Obispo County Superior Court Case No. CV 040126) shall be treated as an adjudicated basin pursuant to this section if the superior court issues a final judgment, order, or decree.
(e)If an adjudication action has determined the rights to extract groundwater for only a portion of a basin, subdivisions (a), (b), (c), and (d) apply only within the area for which the adjudication action has determined those rights.
(f)The watermaster or a local agency within a basin identified in subdivision (a) shall do all of the following:
(1)By April 1, 2016, submit to the department a copy of a governing final judgment, or other judicial order or decree, and any amendments entered before April 1, 2016.
(2)Within 90 days of entry by a court, submit to the department a copy of any amendment made and entered by the court to the governing final judgment or other judicial order or decree on or after April 1, 2016.
(3)By April 1, 2016, and annually thereafter, submit to the department a report containing the following information to the extent available for the portion of the basin subject to the adjudication:
(A)Groundwater elevation data unless otherwise submitted pursuant to Section 10932.
(B)Annual aggregated data identifying groundwater extraction for the preceding water year.
(C)Surface water supply used for or available for use for groundwater recharge or in-lieu use.
(D)Total water use.
(E)Change in groundwater storage.
(F)The annual report submitted to the court.
(g)A court with jurisdiction over a proposed expansion of an adjudicated area described in subdivisions (a) to (d), inclusive, may order that the proceeding be conducted in accordance with Chapter 12 (commencing with Section 10737).
SECTION 1.SEC. 5.Section 10721 of the Water Code is amended to read:10721.Unless the context otherwise requires, the following definitions govern the construction of this part:
(a)Adjudication action means an action filed in the superior or federal district court to determine the rights to extract groundwater from a basin or store water within a basin, including, but not limited to, actions to quiet title respecting rights to extract or store groundwater or an action brought to impose a physical solution on a basin.
(b)Basin means a groundwater basin or subbasin identified and defined in Bulletin 118 or as modified pursuant to Chapter 3 (commencing with Section 10722).
(c)Bulletin 118 means the departments report entitled Californias Groundwater: Bulletin 118 updated in 2003, as it may be subsequently updated or revised in accordance with Section 12924.
(d)Coordination agreement means a legal agreement adopted between two or more groundwater sustainability agencies that provides the basis for coordinating multiple agencies or groundwater sustainability plans within a basin pursuant to this part.
(e)De minimis extractor means a person who extracts, for domestic purposes, two acre-feet or less per year.
(f)Expert witness means a witness qualified pursuant to Section 720 of the Evidence Code.
(g)Governing body means the legislative body of a groundwater sustainability agency.
(h)Groundwater means water beneath the surface of the earth within the zone below the water table in which the soil is completely saturated with water, but does not include water that flows in known and definite channels.
(i)Groundwater extraction facility means a device or method for extracting groundwater from within a basin.
(j)Groundwater recharge means the augmentation of groundwater, by natural or artificial means.
(k)Groundwater sustainability agency means one or more local agencies that implement the provisions of this part. For purposes of imposing fees pursuant to Chapter 8 (commencing with Section 10730) or taking action to enforce a groundwater sustainability plan, groundwater sustainability agency also means each local agency comprising the groundwater sustainability agency if the plan authorizes separate agency action.
(l)Groundwater sustainability plan or plan means a plan of a groundwater sustainability agency proposed or adopted pursuant to this part.
(m)Groundwater sustainability program means a coordinated and ongoing activity undertaken to benefit a basin, pursuant to a groundwater sustainability plan.
(n)Local agency means a local public agency that has water supply, water management, or land use responsibilities within a groundwater basin.
(o)Operator means a person operating a groundwater extraction facility. The owner of a groundwater extraction facility shall be conclusively presumed to be the operator unless a satisfactory showing is made to the governing body of the groundwater sustainability agency that the groundwater extraction facility actually is operated by some other person.
(p)Owner means a person owning a groundwater extraction facility or an interest in a groundwater extraction facility other than a lien to secure the payment of a debt or other obligation.
(q)Personal information has the same meaning as defined in Section 1798.3 of the Civil Code.
(r)Planning and implementation horizon means a 50-year time period over which a groundwater sustainability agency determines that plans and measures will be implemented in a basin to ensure that the basin is operated within its sustainable yield.
(s)Public water system has the same meaning as defined in Section 116275 of the Health and Safety Code.
(t)Recharge area means the area that supplies water to an aquifer in a groundwater basin.
(u)State small water system has the same meaning as defined in Section 116275 of the Health and Safety Code.
(u)
(v)Sustainability goal means the existence and implementation of one or more groundwater sustainability plans that achieve sustainable groundwater management by identifying and causing the implementation of measures targeted to ensure that the applicable basin is operated within its sustainable yield.
(v)
(w)Sustainable groundwater management means the management and use of groundwater in a manner that can be maintained during the planning and implementation horizon without causing undesirable results.
(w)
(x)Sustainable yield means the maximum quantity of water, calculated over a base period representative of long-term conditions in the basin and including any temporary surplus, that can be withdrawn annually from a groundwater supply without causing an undesirable result.
(x)
(y)Undesirable result means one or more of the following effects caused by groundwater conditions occurring throughout the basin:
(1)Chronic lowering of groundwater levels indicating a significant and unreasonable depletion of supply if continued over the planning and implementation horizon. Overdraft during a period of drought is not sufficient to establish a chronic lowering of groundwater levels if extractions and recharge are managed as necessary to ensure that reductions in groundwater levels or storage during a period of drought are offset by increases in groundwater levels or storage during other periods.
(2)Significant and unreasonable reduction of groundwater storage.
(3)Significant and unreasonable seawater intrusion.
(4)Significant and unreasonable degraded water quality, including the migration of contaminant plumes that impair water supplies.
(5)Significant and unreasonable land subsidence that substantially interferes with surface land uses.
(6)Depletions of interconnected surface water that have significant and unreasonable adverse impacts on beneficial uses of the surface water.
(y)
(z)Water budget means an accounting of the total groundwater and surface water entering and leaving a basin including the changes in the amount of water stored.
(z)
(aa)Watermaster means a watermaster appointed by a court or pursuant to other law.
(aa)
(ab)Water year means the period from October 1 through the following September 30, inclusive.
(ab)
(ac)Wellhead protection area means the surface and subsurface area surrounding a water well or well field that supplies a public water system through which contaminants are reasonably likely to migrate toward the water well or well field.
SEC. 6.Section 10722.2 of the Water Code is amended to read:10722.2.(a)A local agency or an entity directed by the court in an adjudication action to file the request may request that the department revise the boundaries of a basin, including the establishment of new subbasins. A local agencys request shall be supported by the following information:
(1)Information demonstrating that the proposed adjusted basin can be the subject of sustainable groundwater management.
(2)Technical information regarding the boundaries of, and conditions in, the proposed adjusted basin.
(3)Information demonstrating that the entity proposing the basin boundary adjustment consulted with interested local agencies and public water systems in the affected basins before filing the proposal with the department.
(4)Other information the department deems necessary to justify revision of the basins boundary.
(b)By January 1, 2016, the department shall adopt regulations regarding the information required to comply with subdivision (a), including the methodology and criteria to be used to evaluate the proposed revision. The department shall adopt the regulations, including any amendments thereto, authorized by this section as emergency regulations in accordance with the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). The adoption of these regulations is an emergency and shall be considered by the Office of Administrative Law as necessary for the immediate preservation of the public peace, health and safety, or general welfare. Notwithstanding the Administrative Procedure Act, emergency regulations adopted by the department pursuant to this section shall not be subject to review by the Office of Administrative Law and shall remain in effect until revised by the department.
(c)Methodology and criteria established pursuant to subdivision (b) shall address all of the following:
(1)How to assess the likelihood that the proposed basin can be sustainably managed.
(2)How to assess whether the proposed basin would limit the sustainable management of adjacent basins.
(3)How to assess whether there is a history of sustainable management of groundwater levels in the proposed basin.
(d)Prior to adopting and finalizing the regulations, the regulations pursuant to subdivision (b), the department shall conduct three public meetings to consider public comments. The department shall publish the draft regulations on its Internet Web site at least 30 days before the public meetings. One meeting shall be conducted at a location in northern California, one meeting shall be conducted at a location in the central valley of California, and one meeting shall be conducted at a location in southern California.
(e)The department shall provide a copy of its draft revision of a basins boundaries to the California Water Commission. The California Water Commission shall hear and comment on the draft revision within 60 days after the department provides the draft revision to the commission.
SEC. 7.Section 10735 of the Water Code is amended to read:10735.As used in this chapter and Chapter 12 (commencing with Section 10737), the following terms have the following meanings:
(a)Condition of long-term overdraft means the condition of a groundwater basin where the average annual amount of water extracted for a long-term period, generally 10 years or more, exceeds the long-term average annual supply of water to the basin, plus any temporary surplus. Overdraft during a period of drought is not sufficient to establish a condition of long-term overdraft if extractions and recharge are managed as necessary to ensure that reductions in groundwater levels or storage during a period of drought are offset by increases in groundwater levels or storage during other periods.
(b)Person means any person, firm, association, organization, partnership, business, trust, corporation, limited liability company, or public agency, including any city, county, city and county, district, joint powers authority, state, or any agency or department of those entities. Person includes, to the extent authorized by federal or tribal law and subject to the limitations described in subdivisions (c) and (d) of Section 10720.3, the United States, a department, agency or instrumentality of the federal government, an Indian tribe, an authorized Indian tribal organization, or interstate body.
(c)Probationary basin means a basin for which the board has issued a determination under Section 10735.2.
(d)Significant depletions of interconnected surface waters means reductions in flow or levels of surface water that is hydrologically connected to the basin such that the reduced surface water flow or levels have a significant and unreasonable adverse impact on beneficial uses of the surface water.
SEC. 2.SEC. 8.Section 10735.8 of the Water Code is amended to read:10735.8.(a)The board, after notice and a public hearing, may adopt an interim plan for a probationary basin.
(b)The interim plan shall include all of the following:
(1)Identification of the actions that are necessary to correct a condition of long-term overdraft or a condition where groundwater extractions result in significant depletions of interconnected surface waters, including recommendations for appropriate action by any person.
(2)A time schedule for the actions to be taken.
(3)A description of the monitoring to be undertaken to determine effectiveness of the plan.
(c)The interim plan may include the following:
(1)Restrictions on groundwater extraction.
(2)A physical solution.
(3)Principles and guidelines for the administration of rights to surface waters that are connected to the basin.
(d) Except as provided in subdivision (e), the interim plan shall be consistent with water right priorities, subject to Section 2 of Article X of the California Constitution.
(e)The board shall include in its interim plan a groundwater sustainability plan, or any element of a plan, that the board finds complies with the sustainability goal for that portion of the basin or would help meet the sustainability goal for the basin. Where, in the judgment of the board, an adjudication action can be relied on as part of the interim plan, either throughout the basin or in an area within the basin, the board may rely on, or incorporate elements of, that adjudication into the interim plan adopted by the board.
(f)In carrying out activities that may affect the probationary basin, state entities shall comply with an interim plan adopted by the board pursuant to this section unless otherwise directed or authorized by statute and the state entity shall indicate to the board in writing the authority for not complying with the interim plan.
(g)(1)After the board adopts an interim plan under this section, the board shall determine if a groundwater sustainability plan or an adjudication action is adequate to eliminate the condition of long-term overdraft or condition where groundwater extractions result in significant depletions of interconnected surface waters, upon petition of either of the following:
(A)A groundwater sustainability agency that has adopted a groundwater sustainability plan for the probationary basin or a portion thereof.
(B)A person authorized to file the petition by a judicial order or decree entered in an adjudication action in the probationary basin.
(2)The board shall act on a petition filed pursuant to paragraph (1) within 90 days after the petition is complete. If the board, in consultation with the department, determines that the groundwater sustainability plan or adjudication action is adequate, the board shall rescind the interim plan adopted by the board for the probationary basin, except as provided in paragraphs (3) and (4).
(3)Upon request of the petitioner, the board may amend an interim plan adopted under this section to eliminate portions of the interim plan, while allowing other portions of the interim plan to continue in effect.
(4)The board may decline to rescind an interim plan adopted pursuant to this section if the board determines that the petitioner has not provided adequate assurances that the groundwater sustainability plan or judicial order or decree will be implemented.
(5)This subdivision is not a limitation on the authority of the board to stay its proceedings under this section or to rescind or amend an interim plan adopted pursuant to this section based on the progress made by a groundwater sustainability agency or in an adjudication action pursuant to Chapter 12 (commencing with Section 10737), even if the board cannot make a determination of adequacy in accordance with paragraph (1).
(h)Before January 1, 2025, the state board shall not establish an interim plan under this section to remedy a condition where the groundwater extractions result in significant depletions of interconnected surface waters.
(i)The boards authority to adopt an interim plan under this section does not alter the law establishing water rights priorities or any other authority of the board.
SEC. 3.SEC. 9.Chapter 12 (commencing with Section 10737) is added to Part 2.74 of Division 6 of the Water Code, to read:12.Determination of Rights to Groundwater1.General Provisions10737.(a)The Legislature finds and declares that this This chapter establishes a timely and comprehensive method for determining rights to groundwater in furtherance of the objectives of this part.
(b)This chapter establishes special procedures for court use in determining rights to groundwater. Unless otherwise provided in this chapter, a court shall determine rights to groundwater using the procedures codified in the Code of Civil Procedure.
(c)Nothing contained in this chapter shall be deemed to repeal or preclude an action to determine rights to groundwater in accordance with the common law.
(b)This chapter shall be applied and interpreted consistently with all of the following:
(1)Protecting water rights consistent with Section 2 of Article X of the California Constitution.
(2)Conducting an adjudication action in a manner that promotes efficiency, reduces unnecessary delays, provides due process, and is consistent with the achievement of the sustainability goal within the timeframes of this part.
(3)Encouraging the compromise and settlement of adjudication actions.
(4)Establishing procedures by which courts may conduct comprehensive determinations of all rights and priorities to groundwater in a basin.
(5)Providing for the conduct of an adjudication action consistent with Winters v. U.S. (1908) 207 U.S. 564, the McCarran Amendment (codified at 43 U.S.C. Sec. 666), and any other federal law regarding the determination of federal or tribal water rights, as applicable.
(6)Providing notice and due process sufficient to enable a court in an adjudication action to determine and establish the priority for unexercised water rights consistent with the principles established in In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339.
10737.2.In making its determination of rights to groundwater, a court shall avoid an undesirable result as defined in Section 10721.
10737.2.In an adjudication action for a basin required to have a groundwater sustainability plan under this part, the court shall manage the proceedings in a manner that minimizes interference with the timely completion and implementation of a groundwater sustainability plan, avoids redundancy and unnecessary costs in the development of technical information and a physical solution, and is consistent with the attainment of the sustainability goal within the timeframes established by this part.
10737.4.Except as otherwise provided in this chapter, a court shall determine rights to groundwater using the procedures codified in the Code of Civil Procedure.
2.Application10738.The process defined in this chapter shall be available to any court of competent jurisdiction.
10738.2.(a)Consistent with subdivision (b) of Section 10720.3, this chapter applies to an Indian tribe and to the federal government, to the extent authorized under federal law.
(b)Section 389 of the Code of Civil Procedure shall not apply to any failure to join an Indian tribe or the United States to an action or proceeding brought under this chapter.
10738.4.An action requesting a court to determine water rights under this chapter shall be deemed provisionally complex within the meaning provided in Rule 3.400 of Title 3 of the California Rules of Court.
3.Basin Boundaries10739.Unless other basin boundaries are established pursuant to Section 10722.2 or subdivision (b) of Section 12924, the boundaries of a basin shall be as identified in Bulletin 118.
4.Parties10740.Upon timely motion, the court shall permit the department or the Department of Fish and Wildlife, or both, to intervene in an action or proceeding brought under this chapter if the movant claims an interest relating to the action or proceeding and is so situated that disposing of the action or proceeding may, as a practical matter, impair or impede the movants ability to protect its interest.
5.Service and Notice10741.(a)All known defendants shall be served in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure.
(b)(1)All unknown defendants shall be served by publication as provided in Section 415.50 of the Code of Civil Procedure.
(2)In addition to other requirements of Section 415.50 of the Code of Civil Procedure, the publication shall describe the groundwater basin that is the subject of the action. The publication shall describe the groundwater basin as identified pursuant to Section 10739, the Internet address for a map depicting the basin, and any other identifying information that the court deems appropriate.
6.Discovery10742.(a)Except as otherwise stipulated or ordered by the court, a party shall, without awaiting a discovery request, provide to the other parties all of the following:
(1)The name and, if known, the address and telephone number of each individual likely to have discoverable information, along with the subjects of that information, who the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.
(2)A copy or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control that it may use to support its claims or defenses, unless the use would be solely for impeachment.
(3)A quantification of claims to water in the basin by the disclosing party. The disclosing party shall also make available for inspection and copying any documents or other evidentiary material, unless privileged or protected from disclosure, on which each claim is based, including materials bearing on the nature and extent of those claims.
(b)A party shall make all disclosures required by this article at or within 14 days after the parties initial case management conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in a proposed discovery plan. In ruling on the objection, the court shall determine what disclosures, if any, are to be made and shall set the time for disclosure.
(c)A party that is first served or otherwise joined after the initial case management conference shall make its initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.
(d)A party shall make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another partys disclosures or because another party has not made its disclosures.
2.Scope of the Action10738.(a)Except as provided in subdivision (b), this chapter applies to either of the following:
(1)An adjudication action in a high- or medium-priority basin.
(2)Where a court considers the need for effective determination and administration of water rights and priorities, the purposes of this part, and the interest in judicial economy, and determines that proceedings in an adjudication action should be conducted under this chapter.
(b)This chapter does not apply to any of the following adjudication actions:
(1)An adjudication action that concerns only allegations that a groundwater extraction facility, or a group of facilities, is interfering with another groundwater extraction facility or facilities and that does not require an allocation of the basins groundwater supply.
(2)An adjudication action that concerns only claims to extract, or prevent interference with extractions from, water stored in a basin as a result of artificial recharge and does not involve an allocation of the basins groundwater supply.
(3)An adjudication action that can be resolved among a limited number of parties and does not involve a comprehensive allocation of the basins groundwater supply.
10738.2.(a)The court may determine all rights to groundwater in an adjudication action for a basin, whether based upon appropriation, overlying right, or other basis of right.
(b)As to the right to groundwater of each party, the courts final judgment in an adjudication action may declare the priority, amount, purposes of use, extraction location, and place of use of the water, together with appropriate injunction relief, subject to terms adopted by the court to implement a physical solution in the adjudication action.
10738.4.(a)(1)Except as otherwise provided in this section, the boundaries of the area subject to an adjudication action shall be consistent with the boundaries of a basin.
(2)If the department revises the boundaries of a basin under Section 10722.2 or subdivision (b) of Section 12924 after an adjudication action has been initiated, the court may revise the boundaries of the area subject to the adjudication action as the interest of justice and the objectives of this chapter require.
(3)Upon a showing that a revision of the basin boundaries would further a fair and effective determination of water rights, the court may direct any of the following to submit a request to the department for revision of the basin boundaries in accordance with Section 10722.2:
(A)A party to the adjudication action.
(B)The board, if the court has made a reference under Part 3 (commencing with Section 2000) of Division 2.
(C)A special master, if one has been appointed.
(b)If the court finds that including an interconnected surface water body or subterranean stream flowing through known and definite channels is necessary to the fair and effective determination of the rights to a basin, the court may require the joinder of persons who claim rights to divert and use water from that surface water body or subterranean stream in the adjudication action.
(c)If the court finds that claims of right to extract or divert only minor quantities of water, not to exceed five acre-feet per year, have no material effect on the rights of other parties, the court may exempt those claimants with respect to those claims for only minor quantities of water. A person exempted pursuant to this subdivision may elect to continue as a party to the adjudication action.
3.Selection of Judge10739.(a)A judge of a superior court of a county within which a portion of the groundwater adjudication lies shall be disqualified. The chair of the Judicial Council shall assign a judge to preside in all proceedings in an adjudication action.
(b)An adjudication action is presumed to be a complex action within the meaning of Rule 3.400 of the California Rules of Court unless a party demonstrates that the comprehensive adjudication is not complex.
(c)Sections 170.6 and 394 of the Code of Civil Procedure shall not apply in an adjudication action.
(d)(1)Notwithstanding subdivision (b) of Section 10726.6, an action against a groundwater sustainability agency that is located in a basin that is being adjudicated under this chapter shall be subject to transfer, coordination, and consolidation with the adjudication action, as appropriate, if the action concerns the adoption, substance, or implementation of a groundwater sustainability plan, or the agencys compliance with the timelines in this part.
(2)The judge assigned by the Judicial Council pursuant to subdivision (a) shall determine whether transfer, coordination, or consolidation is appropriate.
4.Electronic Service10739.6.Except for the service of a complaint pursuant to Article 5 (commencing with Section 10740), the service of pleadings and papers in an adjudication action shall occur electronically to the greatest extent possible. Each party shall serve documents by electronic mail, or other equivalent electronic means, to the greatest extent possible. To enable electronic service of pleadings and papers, the attorney of record or a party representing themselves shall include an electronic mail address for service in the captions of pleadings and papers that the attorney or party files in the adjudication action.
5.Notice and Service of Complaint10740.(a)The plaintiff shall publish notice of the complaint pursuant to Section 6065 of the Government Code in each county that overlies the basin or a portion of the basin.
(b)(1)The plaintiff shall provide notice of the adjudication action to all of the following:
(A)A groundwater sustainability agency that overlies any portion of the basin.
(B)A city, county, or city and county that overlies any portion of the basin.
(C)A district with authority to manage or replenish groundwater resources of the basin in whole or in part.
(D)The operator of a public water system or state small water system that uses groundwater from the basin to supply water service.
(E)A California Native American tribe that is on the contact list maintained by the Native American Heritage Commission.
(F)The Attorney General, the board, the department, and the Department of Fish and Wildlife.
(G)A federal department or agency that manages a federal reservation that in any portion overlies the basin.
(H)A person identified under subdivision (a) or (b) of Section 10740.4 who is not a party to the action.
(I)An owner of real property in the basin, if a person who receives notice under Section 10740.2 notifies the plaintiff of the address of the owner of real property subject to the property tax bill.
(J)A person who makes a request in writing, including electronic mail.
(2)The plaintiff may provide notice required pursuant to this subdivision by first class mail or electronic mail.
(3)(A)Except as provided in subparagraph (B), the plaintiff shall provide notice required pursuant to this subdivision as follows:
(i)To any person entitled to notice under subparagraphs (A) to (G), inclusive, of paragraph (1) within 15 days of the filing of the complaint.
(ii)To any person entitled to notice under subparagraphs (H) to (J), inclusive, of paragraph (1) within 30 days of receipt of the name and address of the person entitled to notice.
(B)The plaintiff may take additional time as is reasonably necessary before providing notice under this subdivision if the plaintiff determines that additional time is necessary to identify a person entitled to notice under this subdivision, to confirm the accuracy of the name or address of that person, or to determine whether the conditions requiring notice have been satisfied.
(4)The plaintiff is not required to provide notice under this subdivision to a person who has already been served or intervened in the adjudication action.
10740.2.(a)When the plaintiff files the complaint, the plaintiff shall lodge all of the following with the court:
(1)(A)A draft notice titled NOTICE OF COMMENCEMENT OF GROUNDWATER BASIN ADJUDICATION in no less than 20-point font and the following text printed immediately below the draft notice title in no less than 14-point font:
THIS NOTICE IS IMPORTANT. ANY RIGHTS YOU CLAIM TO PUMP OR STORE GROUNDWATER FROM THE BASIN IDENTIFIED IN THIS NOTICE MAY BE AFFECTED BY A LAWSUIT INITIATED BY THE COMPLAINT SUMMARIZED BELOW.
A copy of the complaint may be obtained by contacting the plaintiff or the plaintiffs attorney identified in this notice. If you claim rights to pump or store groundwater within the basin, either now or in the future, you may become a party to this lawsuit by filing an answer to the lawsuit on or before the deadline specified in this notice. You may file an answer by completing the attached form answer, filing it with the court indicated in this notice, and sending a copy of the form answer to the plaintiff or the plaintiffs attorney. The form answer is provided for your convenience. Should you choose to file the form answer, it will serve as an answer to all complaints and cross-complaints filed in this case.
It is the duty of all persons who receive this notice and who claim rights to pump or store groundwater within the basin to appear in the lawsuit by the date specified below. All persons who claim rights to pump or store groundwater within the basin will be required to make proof of their claims within six months of their appearance in the lawsuit. Any claimant who fails to appear and submit proof of his or her claim shall be held to have forfeited all rights to pump or store groundwater. At the conclusion of the lawsuit, the superior court will enter a decree determining all water rights of the basin, whether based upon appropriation, overlying right, or other basis of right. You are encouraged to seek the advice of an attorney promptly.
(B)The following information shall be provided immediately following the text described in subparagraph (A):
(i)The name of the basin that is the subject of the adjudication action and a link to the Internet Web site address where the department has posted a map of the basin.
(ii)A space to be completed with the case number assigned to the adjudication action, and the name and address of the court and department to which the action is assigned.
(iii)The name, address, telephone number, and electronic mail address of the plaintiff, or plaintiffs attorney, from which the complaint may be obtained and to whom a copy of the form answer should be sent.
(iv)A summary of the causes of action alleged in the complaint and the relief sought. The summary shall not exceed 25 lines.
(v)A date by which persons receiving the notice must appear in the action.
(2)(A)A draft form answer titled ANSWER TO ADJUDICATION COMPLAINT in no less than 20-point font and the following text printed immediately below the draft form answer title in no less than 14-point font:
The undersigned denies all material allegations in the complaint or cross-complaint in this action that seeks to adjudicate rights in the groundwater basin and asserts all applicable affirmative defenses to that complaint.
(B)Notwithstanding any other law, the filing of an answer in the form described in subparagraph (A) in an adjudication action is sufficient to put at issue all material allegations and applicable affirmative defenses to the complaint in the adjudication action.
(b)Within 30 days of the assignment of a judge by the Judicial Council, the plaintiff shall file a motion for approval of plaintiffs draft notice and draft form answer filed pursuant to subdivision (a).
(c)Once the court approves the draft notice, service of that notice in accordance with this section shall substitute for the summons otherwise provided for in civil actions pursuant to Section 412.20 of the Code of Civil Procedure.
(d)(1)Following a court order approving the notice and form answer and authorizing service of landowners pursuant to this section, the plaintiff shall do all of the following:
(A)Identify the assessor parcel numbers and physical addresses of all real property within the basin and the names and addresses of all holders of fee title to real property within the basin using the records of the assessor or assessors of the county or counties in which the basin to be adjudicated lies. The plaintiff shall provide the court and all parties with notice of its acquisition of, or sufficient access to, this information.
(B)Mail, by registered mail or certified mail, return receipt requested, the notice, complaint, and form answer to all holders of fee title to real property in the basin. If the physical address of the real property differs from the address of the holder of fee title, the notice, complaint, and form answer shall be mailed by registered or certified mail, return receipt requested, to the physical address of the real property and the address of the holder of fee title.
(C)If return receipt is not received for a parcel of real property, the plaintiff shall post a copy of the notice, complaint, and form answer in a conspicuous place on the real property.
(D)Within 20 days of the court order, publish the notice at least once per week for four consecutive weeks in one or more newspapers of general circulation in each county overlying the basin in whole or in part.
(2)Service pursuant to this subdivision is not required if the real property is part of a class of water users that are otherwise noticed in accordance with this chapter.
(e)Upon completion of the mailing pursuant to subdivision (d), the plaintiff shall file with the court a notice of the completion of the mailing.
(f)Within 60 days after service is authorized, the plaintiff shall prepare and file a notice of the adjudication action in the office of the county recorder of each county overlying the basin in whole or in part. The notice shall be recorded in a manner so as to ensure that a person researching the title of a parcel will find the notice.
(g)The plaintiff shall serve the court-approved notice and form answer by first class mail to any entity that is known, or with reasonable diligence can be determined, to hold title to real property in the basin but is exempt from property tax.
(h)The court may authorize any other procedures it finds appropriate and necessary to provide notice to persons who may hold groundwater rights in the basin.
(i)The court may require notice to be made available in languages other than English.
(j)Within 15 days of the courts approval of the notice and form answer, the plaintiff shall provide the notice and form answer to the department and each county and groundwater sustainability agency that overlies any portion of the basin. The department, and each county and groundwater sustainability agency that overlies any portion of the basin and has an Internet Web site, shall do the following:
(1)Post the notice and form answer on their Internet Web site within 15 days of receipt.
(2)Provide a link to the notice and form answer from their Internet Web site home page.
(3)Maintain the posting and link pursuant to paragraphs (1) and (2) for the entire time that the adjudication action is pending. The plaintiff shall notify the department and each county and groundwater sustainability agency when the adjudication action is no longer pending.
10740.4.(a)(1)Within 15 days of the courts approval of the notice under Section 10740.2, the plaintiff shall request from the following entities the names and addresses of persons reporting extractions within the basin under this part, or Part 5 (commencing with Section 4999) or Part 5.2 (commencing with Section 5200) of Division 2:
(A)The board.
(B)Any local agency designated as a board-designated local area that includes the basin, or a portion of the basin, under Section 5009.
(C)Any groundwater sustainability agency for the basin or a portion of the basin.
(2)The entities described in subparagraphs (A) to (C), inclusive, of paragraph (1) shall provide the plaintiff with the names, mailing addresses, and electronic mail addresses, if available, within 45 days of the plaintiffs request. Additionally, the board shall provide the mailing address and electronic mail address, if available, of any person known to the board who holds a permit or license authorizing underground storage in the basin or who claims a right to divert water for underground storage in the basin.
(b)If extractions in the basin or a portion of the basin are not subject to reporting requirements under this part, or Part 5 (commencing with Section 4999) or Part 5.2 (commencing with Section 5200) of Division 2, the plaintiff shall request the names and addresses of all customers in the area who are supplied power to operate groundwater extraction facilities in the basin, as reflected in the utility records, from any investor-owned utility or municipal utility that provides electrical power in the area. The utility shall provide the plaintiffs with the names, mailing addresses, and electronic mail addresses, if available, within 45 days of the plaintiffs request.
(c)Upon request, the plaintiff shall provide reimbursement for the reasonable costs incurred under this section to an entity described in subparagraphs (A) to (C), inclusive, of paragraph (1) of subdivision (a) or a utility described in subdivision (b). The entity or utility shall incur no civil liability by reason of its compliance with this section.
10740.6.(a)The plaintiff shall serve the complaint on any person known to extract groundwater within the basin. Service may be by personal service or by other method as provided by Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure.
(b)The plaintiff shall serve the complaint on any person known to own real property that overlies the basin and that has not been sent the court-approved notice and form answer. Service shall be by first class mail.
(c)Service on the United States shall be made in accordance with Section 666 of Title 43 of the United States Code.
(d)Section 389 of the Code of Civil Procedure shall not apply to a failure to join the United States or an Indian tribe to a comprehensive adjudication.
10740.8.(a)Whenever proceedings are instituted to determine rights to water under this chapter, it is the duty of all claimants interested in the proceedings and having notice of the proceedings pursuant to this chapter to appear in the proceedings and to submit proof of their claims at the time, and in the manner, required by this chapter.
(b)The fulfillment of the notice and service provisions of this chapter shall be deemed effective service of process of the complaint and notice on all interested parties of the adjudication action for purposes of establishing in rem jurisdiction and the comprehensive effect of the adjudication action.
6.Intervention10741.Any of the following may intervene in an adjudication action under this chapter:
(a)The groundwater sustainability agency for the basin or portion of the basin.
(b)Any city, county, or city and county, that overlies any portion of the basin.
(c)Any person upon an ex parte application that demonstrates that the person holds fee simple ownership in a parcel in the basin or extracts or stores water in the basin. A person filing an ex parte application pursuant to this subdivision shall give notice to the plaintiff consistent with the California Rules of Court.
7.Initial Disclosure10741.5.(a)Except as otherwise ordered by the court, a party shall serve on the other parties and the special master, if one is appointed, an initial disclosure within six months of appearing in the adjudication action that includes all of the following information:
(1)The name, address, telephone number, and electronic mail address of the party and, if applicable, of the partys attorney.
(2)The quantity of groundwater extracted from the basin by the party and the method of measurement used by the party or the partys predecessor in interest for each of the previous five calendar years preceding the filing of the complaint.
(3)A general description of the purpose to which the water has been put.
(4)The area in which the water has been used.
(5)The location of each well or other source through which groundwater has been extracted.
(6)The type of water right or rights claimed by the party for the extraction of groundwater.
(7)Any claims for increased or future use of groundwater.
(8)The quantity of any beneficial use of any alternative water use that the party claims as its use of groundwater under any applicable law, including, but not limited to, Sections 1005.1, 1005.2, 1005.4, 1010, or 1011.
(9)Identification of all surface water rights and contracts that the party claims provides the basis for its water right claims in the adjudication action.
(10)The quantity of any replenishment of water to the basin that augmented the basins native water supply, resulting from the intentional storage of imported or nonnative water in the basin, managed recharge of surface water, or return flows resulting from the use of imported water or nonnative water on lands overlying the basin by the party, or the partys representative or agent, during each of the five calendar years immediately preceding the filing of the complaint.
(11)The names, addresses, telephone numbers, and electronic mail addresses of all persons possessing information that supports the partys disclosures.
(12)Any other facts that tend to prove the partys claimed water right.
(b)A party shall make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its initial disclosures because it has not fully investigated the case, because it challenges the sufficiency of another partys disclosures, or because another party has not made its disclosures.
(c)A party that has made its initial disclosures, as described in subdivision (a), or that has responded to another partys discovery request, shall supplement or correct a disclosure or response in all of the following situations:
(1)In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect and the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.
(2)If the party extracts groundwater from the basin after the complaint is filed. The supplement filed under this paragraph shall report the quantity of water involved and be filed within 90 days of the end of the calendar year.
(3)As ordered by the court.
(d)To the greatest extent possible, a party shall serve its initial disclosures electronically. If it is not possible for the party to serve its disclosures electronically, the party shall serve the disclosures in an electronic format saved on a portable storage media device such as a compact disc or flash drive.
(e)A partys obligations under this section may be enforced by a court on its own motion or the motion of a party to compel disclosure.
(f)A partys disclosures under this section shall be verified under penalty of perjury as being true and correct to the best of the partys knowledge.
8.Case Management10742.(a)In managing an adjudication action, the court shall convene a case management conference as provided by the California Rules of Court.
(b)In an initial case management conference, or as soon as practicable, the court should consider the following, in addition to other matters:
(1)Determining whether to seek adjustment of the basin boundaries pursuant to Section 10738.4.
(2)Staying the action pursuant to Article 9 (commencing with Section 10742.5).
(3)Appointing a special master pursuant to Article 10 (commencing with Section 10743).
(4)Scheduling a hearing on a preliminary injunction pursuant to Article 11 (commencing with Section 10743.5).
(5)Dividing the case into phases to resolve legal and factual issues.
(6)Issuing orders to ensure that issues resolved in one phase are not relitigated in another.
(7)Limiting discovery to correspond to the phases.
(8)Scheduling early resolution of claims to prescriptive rights.
(9)Formation of a class or classes of an overlying groundwater rights holder pursuant to the criteria specified in Section 382 of the Code of Civil Procedure.
9.Stay10742.5.(a)Upon the motion of any party to an adjudication action, a court may stay an adjudication action for a period of up to one year, subject to renewal in the courts discretion upon a showing of good cause, in order to facilitate any of the following:
(1)The adoption of a groundwater sustainability plan that provides for a physical solution or may otherwise address issues in the adjudication action.
(2)The development of technical studies that may be useful to the parties in the adjudication action.
(3)The voluntary mediation or participation in a settlement conference on all, or a portion of, the subject matters or legal questions identified in the adjudication action.
(4)The compromise and settlement of the adjudication action or issues in the adjudication action.
(b)A stay pursuant to this section shall not stay, or otherwise delay, the parties obligations to provide initial disclosures pursuant to Article 7 (commencing with Section 10741.5) unless the court determines the initial disclosures will not benefit resolution of the comprehensive adjudication.
10.Special Master10743.(a)The court may appoint one or more special masters, whose duties may include the following:
(1)Investigating technical and legal issues, as directed by the court. The special master shall compile a report of findings in accordance with Section 10743.2.
(2)Conducting joint factfinding with the parties, their designees, or both.
(3)Investigating the need for, and developing the proposal for, a preliminary injunction pursuant to Article 11 (commencing with Section 10743.5).
(4)Performing other tasks the court may deem appropriate.
(b)The court shall fix a special masters compensation on the basis and terms stated in the appointing order. The court may set a new basis and terms for the special master after giving notice and an opportunity to be heard. The court shall allocate payment for the cost of the special master among the parties in an amount and a manner that the court deems equitable. The court may waive a partys payment obligation upon a showing of good cause.
(c)The court may request that the board or department recommend candidates for appointment as special master or review the qualifications of candidates.
(d)This section does not limit the authority of the court to make a reference pursuant to Chapter 1 (commencing with Section 2000) of Part 3 of Division 2.
(e)This section does not limit the authority to appoint a watermaster pursuant to Chapter 3 (commencing with Section 4050) of Part 4 of Division 2 or any other law.
10743.2.(a)The special master shall make available a draft report and provide at least 60 days for the parties to submit written objections to the draft report.
(b)An objection to the draft report shall identify the specific grounds and evidence on which the objection is based.
(c)The special master may notice and hold hearings, as the special master deems appropriate, to gather information or address issues raised in the objections to the draft report.
(d)The special master shall consider the objections to the draft report and prepare a final report that shall be filed with the court.
11.Preliminary Injunction10743.5.(a)Upon a showing that the basin is in a condition of long-term overdraft, the court may, upon notice and a hearing, issue a preliminary injunction.
(b)The following information shall be admissible and shall constitute prima facie evidence of a condition of long-term overdraft:
(1)Bulletins and other reports of the department.
(2)A report of a special master indicating that a condition of long-term overdraft exists.
(c)A preliminary injunction may include, but is not limited to, any of the following:
(1)A moratorium on new or increased appropriations of water.
(2)A limitation on or reduction in the diversion or extraction of water.
(3)An allocation among the parties establishing amounts of extraction allowed during the pendency of the action.
(4)Procedures for voluntary transfers.
(d)The court shall issue a preliminary injunction upon a determination of all of the following:
(1)The basin is in a condition of long-term overdraft.
(2)The basin is a probationary basin or is not in compliance with the planning deadlines in subdivision (a) of Section 10720.7.
(3)There is no interim plan in effect for the basin pursuant to Section 10735.8.
(e)The court may provide a schedule for further reductions in extractions over a period of years if the court finds that doing so appears reasonably necessary to meet the sustainability goal within the timelines provided in subdivision (b) of Section 10727.2.
(f)The terms of a preliminary injunction shall not determine the rights in the final judgment of the action.
(g)No bond or undertaking shall be required for the issuance of a preliminary injunction.
(h)The court may appoint a watermaster to oversee the enforcement of a preliminary injunction.
7. 12.Expert Witnesses10743.10744.(a)In addition to the other disclosures required by this chapter, a party shall disclose to the other parties the identity of any expert witness it may use at trial to present evidence.
(b)Unless otherwise stipulated or ordered by the court, this disclosure shall be accompanied by a written report, prepared and signed by the expert witness, if the expert witness is retained or specially employed to provide expert testimony in the case or whose by the party offering the expert witness to testify as an expert in the action, or if the expert witnesss duties as the partys employee regularly involve giving expert testimony. The report shall contain all of the following:
(1)A complete statement of all opinions the expert witness will express and the basis and reasons for them. those opinions.
(2)The facts or data considered by the expert witness in forming his or her opinions.
(3)Any exhibits that will be used to summarize or support the opinions of the expert witness. the expert witness will use to summarize or support his or her opinion.
(4)The expert witness witnesss qualifications, including a list of all publications authored by the expert witness in the previous 10 years.
(5)A list of all other cases in which, during the previous four years, which the expert witness testified testified, as an expert at trial or by deposition. deposition, in the last five years.
(6)A statement of the compensation to be paid to the expert witness for the study and testimony in the case. for the witnesss work and testimony in the adjudication action.
(c)Unless otherwise stipulated or ordered by the court, if the expert witness is not required to provide a written report, the If subdivision (b) does not apply to an expert, the witnesss disclosure shall state include both of the following:
(1)The subject matter on which the expert witness is expected to present evidence.
(2)A summary of the facts and opinions to which the expert witness is expected to testify. witnesss opinions and the facts or data considered by the expert witness in forming his or her opinion.
(d)A party shall make the required disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures shall be made at either of the following times:
(1)At least 90 days before the date set for trial or for the case to be ready for trial.
(2)If the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party, within 30 days after the other partys disclosure.
(d)Unless otherwise stipulated by the parties, a party shall make the disclosures of any expert witness it intends to present at trial, except for an expert witness presented solely for purposes of impeachment or rebuttal, at the times and in the sequence ordered by the court. If there is no stipulation or court order, the disclosures of an expert witness shall be made as follows:
(1)No sooner than 30 days after the courts entry of an order establishing the scope of the relevant phase of the adjudication action.
(2)Except for a supplemental expert witness described in paragraph (3), no later than 60 days before the date set for trial for the relevant phase of the adjudication action.
(3)For a supplemental expert witness who will express an opinion on a subject to be covered by another expert witness designated by an adverse party that was not among the subjects covered by an expert witness initially disclosed by the party offering the supplemental expert witness, no more than 20 days after the initial expert witness disclosure date.
(e)The court may modify the disclosure requirements of subdivisions (b) through (d), inclusive, for expert witnesses presented solely for purposes of impeachment or rebuttal. In modifying the disclosure requirements, the court shall adopt disclosure requirements that expedite the courts consideration of the issues presented and shall ensure that expert testimony presented solely for the purposes of impeachment or rebuttal is strictly limited to the scope of the testimony that it intends to impeach or rebut.
(f)(1) A party whose expert witness has made a disclosure pursuant to this section shall promptly supplement or correct the expert witnesss disclosure in either of the following instances:
(A)In a timely manner if the party learns that in some material respect the disclosure is incomplete or incorrect, if the additional or corrective information has not otherwise been made known to the other parties during the disclosure or discovery process.
(B)As ordered by the court.
(2)A partys duty to supplement or correct its expert witnesss disclosure includes the information included in the report and the information given during the expert witnesss deposition. Unless otherwise stipulated by the parties or ordered by the court, any supplementation or correction shall occur at least 14 days before trial of the applicable phase of the adjudication action.
(3)The court may authorize a supplemental deposition of an expert witness based on a supplemental disclosure made pursuant to this subdivision. The court shall appropriately condition the authorization of a supplemental deposition of an expert witness to ensure the expeditious completion of the applicable phase of the adjudication action. The court may require the party whose expert makes the supplemental disclosure to pay some or all of the costs associated with the supplemental deposition.
(g)If a party or its expert witness fails to comply with this section, the court may, upon notice and hearing, exclude the expert witnesss testimony from trial, authorize additional depositions of the expert witness at the partys expense, or take other appropriate action.
13.Written Testimony10744.5.(a)A court in an adjudication action may require the parties to submit written testimony of witnesses in the forms of affidavits or declarations under penalty of perjury in lieu of presenting live testimony. The required written testimony may include, but is not limited to, expert witness opinions and testimony that authenticates documentary evidence. The court may order that the written testimony constitutes the entirety of the witnesss direct testimony, require the written testimony to include any exhibits offered in support of the written testimony, and, in the case of written testimony of an expert witness, require a statement of the witnesss qualifications.
(b)If the court requires the submission of written testimony pursuant to subdivision (a), a complete copy of the direct testimony shall be served at least 21 days before trial. A complete copy of any rebuttal testimony shall be served no later than the first day of trial.
(c)If the contents of the written testimony would have been admissible if the witness testified orally, the written testimony shall be received by the court as a documentary exhibit provided that the witness whose written testimony is being offered is made available for cross-examination by all parties.
14.Physical Solution10745.(a)The court shall have the authority and the duty to impose a physical solution on the parties in an adjudication action, consistent with Section 2 of Article X of the California Constitution, where necessary.
(b)Prior to adopting a physical solution presented by a party or considered on the courts own motion, the court shall determine whether a physical solution is required to prevent waste and unreasonable use by Section 2 of Article X of the California Constitution after considering any existing groundwater sustainability plan or program.
15.Stipulated Judgment10746.(a)If a party, or a group of parties, submits a proposed stipulated judgment, the court may adopt the proposed stipulated judgment if the court finds that it meets all of the following criteria:
(1)It is consistent with Section 2 of Article X of the California Constitution.
(2)It treats objecting parties and any persons who have claims that are exempted under Section 10738.4 equitably as compared to the stipulating parties.
(3)It will not substantially impair the ability of a groundwater sustainability agency, the board, or the department to comply with this part and to achieve the sustainability goal.
(b)(1)The court may adopt a proposed stipulated judgment, as applied to the stipulating parties, if the stipulation meets the criteria described in subdivision (a) and it is submitted by a party, or a group of parties, and supported by either of the following:
(A)More than 50 percent of all named parties in the adjudication action.
(B)Groundwater extractors responsible for at least 75 percent of the groundwater production in the basin during the past five calendar years.
(2)A party objecting to a proposed stipulated judgment pursuant to this subdivision shall demonstrate, by a preponderance of the evidence, that the proposed stipulated judgment does not satisfy one or more criteria described in subdivision (a) or that it substantially violates the partys water rights. If the objecting party is unable to make this showing, the court may impose the proposed stipulated judgment on the objecting party. The objecting party may be subject to a preliminary injunction under Article 11 (commencing with Section 10743.5) while the partys objections remain unresolved.
10746.2.Chapter 11 (commencing with Section 10735) shall not apply to a stipulated judgment approved by the court pursuant to Section 10746 if all of the following apply:
(a)The proposed stipulated judgment meets the criteria of subdivision (a) of Section 10746.
(b)All groundwater sustainability agencies within the basin support the proposed stipulated judgment.
(c)A local agency has submitted the proposed stipulated judgment to the department for evaluation and assessment pursuant to Section 10733.4 or paragraph (2) of subdivision (b) of Section 10733.6. Notwithstanding subdivision (c) of Section 10733.6, a proposed stipulated judgment may be submitted to the department after January 1, 2017.
(d)The department determines that the proposed stipulated judgment satisfies the objectives of this part for the basin.
16.Judgment Binding on Successors10747.The judgment in an adjudication action under this chapter shall be binding on the parties to the action, each partys successors in interest, including, but not limited to, heirs, executors, administrators, assigns, lessees, licensees, and upon the agents and employees of all these persons, and upon all landowners or other persons claiming rights to extract groundwater from within the basin.
17.Continuing Jurisdiction10748.(a)The court shall have continuing jurisdiction to modify or amend a final judgment in an adjudication action as follows:
(1)In response to new information or changed circumstances.
(2)In the interests of justice.
(3)To ensure that the criteria of subdivision (a) of Section 10746 are met.
(b)When feasible, the judge who heard the original adjudication action should preside over subsequent actions or motions to modify or amend the judgment.
(c)If the court has approved a stipulated judgment not subject to Chapter 11 (commencing with Section 10735) in accordance with Section 10746.2, the department shall submit to the court the assessments and any recommended corrective actions that the department issues pursuant to Section 10733.8. The court, after notice and a hearing, shall determine whether to amend the judgment to adopt the departments recommended corrective actions.
SEC. 10.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
Unless the context otherwise requires, the following definitions govern the construction of this part:
(a)Adjudication action means an action filed in the superior or federal district court to determine the rights to extract groundwater from a basin or store water within a basin, including, but not limited to, actions to quiet title respecting rights to extract or store groundwater or an action brought to impose a physical solution on a basin.
(b)Basin means a groundwater basin or subbasin identified and defined in Bulletin 118 or as modified pursuant to Chapter 3 (commencing with Section 10722).
(c)Bulletin 118 means the departments report entitled Californias Groundwater: Bulletin 118 updated in 2003, as it may be subsequently updated or revised in accordance with Section 12924.
(d)Coordination agreement means a legal agreement adopted between two or more groundwater sustainability agencies that provides the basis for coordinating multiple agencies or groundwater sustainability plans within a basin pursuant to this part.
(e)De minimis extractor means a person who extracts, for domestic purposes, two acre-feet or less per year.
(f)Expert witness means a witness qualified pursuant to Section 720 of the Evidence Code.
(g)Governing body means the legislative body of a groundwater sustainability agency.
(h)Groundwater means water beneath the surface of the earth within the zone below the water table in which the soil is completely saturated with water, but does not include water that flows in known and definite channels.
(i)Groundwater extraction facility means a device or method for extracting groundwater from within a basin.
(j)Groundwater recharge means the augmentation of groundwater, by natural or artificial means.
(k)Groundwater sustainability agency means one or more local agencies that implement the provisions of this part. For purposes of imposing fees pursuant to Chapter 8 (commencing with Section 10730) or taking action to enforce a groundwater sustainability plan, groundwater sustainability agency also means each local agency comprising the groundwater sustainability agency if the plan authorizes separate agency action.
(l)Groundwater sustainability plan or plan means a plan of a groundwater sustainability agency proposed or adopted pursuant to this part.
(m)Groundwater sustainability program means a coordinated and ongoing activity undertaken to benefit a basin, pursuant to a groundwater sustainability plan.
(n)Local agency means a local public agency that has water supply, water management, or land use responsibilities within a groundwater basin.
(o)Operator means a person operating a groundwater extraction facility. The owner of a groundwater extraction facility shall be conclusively presumed to be the operator unless a satisfactory showing is made to the governing body of the groundwater sustainability agency that the groundwater extraction facility actually is operated by some other person.
(p)Owner means a person owning a groundwater extraction facility or an interest in a groundwater extraction facility other than a lien to secure the payment of a debt or other obligation.
(q)Personal information has the same meaning as defined in Section 1798.3 of the Civil Code.
(r)Planning and implementation horizon means a 50-year time period over which a groundwater sustainability agency determines that plans and measures will be implemented in a basin to ensure that the basin is operated within its sustainable yield.
(s)Public water system has the same meaning as defined in Section 116275 of the Health and Safety Code.
(t)Recharge area means the area that supplies water to an aquifer in a groundwater basin.
(u)Sustainability goal means the existence and implementation of one or more groundwater sustainability plans that achieve sustainable groundwater management by identifying and causing the implementation of measures targeted to ensure that the applicable basin is operated within its sustainable yield.
(v)Sustainable groundwater management means the management and use of groundwater in a manner that can be maintained during the planning and implementation horizon without causing undesirable results.
(w)Sustainable yield means the maximum quantity of water, calculated over a base period representative of long-term conditions in the basin and including any temporary surplus, that can be withdrawn annually from a groundwater supply without causing an undesirable result.
(x)Undesirable result means one or more of the following effects caused by groundwater conditions occurring throughout the basin:
(1)Chronic lowering of groundwater levels indicating a significant and unreasonable depletion of supply if continued over the planning and implementation horizon. Overdraft during a period of drought is not sufficient to establish a chronic lowering of groundwater levels if extractions and recharge are managed as necessary to ensure that reductions in groundwater levels or storage during a period of drought are offset by increases in groundwater levels or storage during other periods.
(2)Significant and unreasonable reduction of groundwater storage.
(3)Significant and unreasonable seawater intrusion.
(4)Significant and unreasonable degraded water quality, including the migration of contaminant plumes that impair water supplies.
(5)Significant and unreasonable land subsidence that substantially interferes with surface land uses.
(6)Depletions of interconnected surface water that have significant and unreasonable adverse impacts on beneficial uses of the surface water.
(y)Water budget means an accounting of the total groundwater and surface water entering and leaving a basin including the changes in the amount of water stored.
(z)Watermaster means a watermaster appointed by a court or pursuant to other law.
(aa)Water year means the period from October 1 through the following September 30, inclusive.
(bb)
(ab)Wellhead protection area means the surface and subsurface area surrounding a water well or well field that supplies a public water system through which contaminants are reasonably likely to migrate toward the water well or well field.
SEC. 2.Section 10735.8 of the Water Code is amended to read:10735.8.(a)The board, after notice and a public hearing, may adopt an interim plan for a probationary basin.
(b)The interim plan shall include all of the following:
(1)Identification of the actions that are necessary to correct a condition of long-term overdraft or a condition where groundwater extractions result in significant depletions of interconnected surface waters, including recommendations for appropriate action by any person.
(2)A time schedule for the actions to be taken.
(3)A description of the monitoring to be undertaken to determine effectiveness of the plan.
(c)The interim plan may include the following:
(1)Restrictions on groundwater extraction.
(2)A physical solution.
(3)Principles and guidelines for the administration of rights to surface waters that are connected to the basin.
(d) Except as provided in subdivision (e), the interim plan shall be consistent with water right priorities, subject to Section 2 of Article X of the California Constitution.
(e)The board shall include in its interim plan a groundwater sustainability plan, or any element of a plan, that the board finds complies with the sustainability goal for that portion of the basin or would help meet the sustainability goal for the basin. Where, in the judgment of the board, an adjudication action can be relied on as part of the interim plan, either throughout the basin or in an area within the basin, the board may rely on, or incorporate elements of, that adjudication into the interim plan adopted by the board.
(f)In carrying out activities that may affect the probationary basin, state entities shall comply with an interim plan adopted by the board pursuant to this section unless otherwise directed or authorized by statute and the state entity shall indicate to the board in writing the authority for not complying with the interim plan.
(g)(1)After the board adopts an interim plan under this section, the board shall determine if a groundwater sustainability plan or an adjudication action is adequate to eliminate the condition of long-term overdraft or condition where groundwater extractions result in significant depletions of interconnected surface waters, upon petition of either of the following:
(A)A groundwater sustainability agency that has adopted a groundwater sustainability plan for the probationary basin or a portion thereof.
(B)A person authorized to file the petition by a judicial order or decree entered in an adjudication action in the probationary basin.
(2)The board shall act on a petition filed pursuant to paragraph (1) within 90 days after the petition is complete. If the board, in consultation with the department, determines that the groundwater sustainability plan or adjudication action is adequate, the board shall rescind the interim plan adopted by the board for the probationary basin, except as provided in paragraphs (3) and (4).
(3)Upon request of the petitioner, the board may amend an interim plan adopted under this section to eliminate portions of the interim plan, while allowing other portions of the interim plan to continue in effect.
(4)The board may decline to rescind an interim plan adopted pursuant to this section if the board determines that the petitioner has not provided adequate assurances that the groundwater sustainability plan or judicial order or decree will be implemented.
(5)This subdivision is not a limitation on the authority of the board to stay its proceedings under this section or to rescind or amend an interim plan adopted pursuant to this section based on the progress made by a groundwater sustainability agency or in an adjudication action pursuant to Chapter 12 (commencing with Section 10737), even if the board cannot make a determination of adequacy in accordance with paragraph (1).
(h)Before January 1, 2025, the state board shall not establish an interim plan under this section to remedy a condition where the groundwater extractions result in significant depletions of interconnected surface waters.
(i)The boards authority to adopt an interim plan under this section does not alter the law establishing water rights priorities or any other authority of the board.
SEC. 3.Chapter 12 (commencing with Section 10737) is added to Part 2.74 of Division 6 of the Water Code, to read:12.Determination of Rights to Groundwater1.General Provisions10737.(a)The Legislature finds and declares that this chapter establishes a timely and comprehensive method for determining rights to groundwater in furtherance of the objectives of this part.
(b)This chapter establishes special procedures for court use in determining rights to groundwater. Unless otherwise provided in this chapter, a court shall determine rights to groundwater using the procedures codified in the Code of Civil Procedure.
(c)Nothing contained in this chapter shall be deemed to repeal or preclude an action to determine rights to groundwater in accordance with the common law.
10737.2.In making its determination of rights to groundwater, a court shall avoid an undesirable results result as defined in Section 10721.
2.Application10738.The process defined in this chapter shall be available to any court of competent jurisdiction.
10738.2.(a)Consistent with subdivision (b) of Section 10720.3, this chapter applies to an Indian tribe and to the federal government, to the extent authorized under federal law.
(b)Section 389 of the Code of Civil Procedure shall not apply to any failure to join an Indian tribe or the United States to an action or proceeding brought under this chapter.
10738.4.An action requesting a court to determine water rights under this chapter shall be deemed provisionally complex within the meaning provided in Rule 3.400 of Title 3 of the California Rules of Court.
3.Basin Boundaries10739.Unless other basin boundaries are established pursuant to Section 10722.2 or subdivision (b) of Section 12924, the boundaries of a basin shall be as identified in Bulletin 118.
4.Parties10740.Upon timely motion, the court shall permit the department or the Department of Fish and Wildlife, or both, to intervene in an action or proceeding brought under this chapter if the movant claims an interest relating to the action or proceeding and is so situated that disposing of the action or proceeding may, as a practical matter, impair or impede the movants ability to protect its interest.
5.Service and Notice10741.(a)All known defendants shall be served in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure.
(b)(1)All unknown defendants shall be served by publication as provided in Section 415.50 of the Code of Civil Procedure.
(2)In addition to other requirements of Section 415.50 of the Code of Civil Procedure, the publication shall describe the groundwater basin that is the subject of the action. The publication shall describe the groundwater basin as identified pursuant to Section 10739, the Internet address for a map depicting the basin, and any other identifying information that the court deems appropriate.
6.Discovery10742.(a)Except as otherwise stipulated or ordered by the court, a party shall, without awaiting a discovery request, provide to the other parties all of the following:
(1)The name and, if known, the address and telephone number of each individual likely to have discoverable information, along with the subjects of that information, who the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.
(2)A copy or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control that it may use to support its claims or defenses, unless the use would be solely for impeachment.
(3)A quantification of claims to water in the basin by the disclosing party. The disclosing party shall also make available for inspection and copying any documents or other evidentiary material, unless privileged or protected from disclosure, on which each claim is based, including materials bearing on the nature and extent of those claims.
(b)A party shall make all disclosures required by this article at or within 14 days after the parties initial case management conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in a proposed discovery plan. In ruling on the objection, the court shall determine what disclosures, if any, are to be made and shall set the time for disclosure.
(c)A party that is first served or otherwise joined after the initial case management conference shall make its initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.
(d)A party shall make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another partys disclosures or because another party has not made its disclosures.
7.Expert Witnesses10743.(a)In addition to the other disclosures required by this chapter, a party shall disclose to the other parties the identity of any expert witness it may use at trial to present evidence.
(b)Unless otherwise stipulated or ordered by the court, this disclosure shall be accompanied by a written report, prepared and signed by the expert witness, if the expert witness is retained or specially employed to provide expert testimony in the case or whose duties as the partys employee regularly involve giving expert testimony. The report shall contain all of the following:
(1)A complete statement of all opinions the expert witness will express and the basis and reasons for them.
(2)The facts or data considered by the expert witness in forming his or her opinions.
(3)Any exhibits that will be used to summarize or support the opinions of the expert witness.
(4)The expert witness qualifications, including a list of all publications authored in the previous 10 years.
(5)A list of all other cases in which, during the previous four years, the expert witness testified as an expert at trial or by deposition.
(6)A statement of the compensation to be paid to the expert witness for the study and testimony in the case.
(c)Unless otherwise stipulated or ordered by the court, if the expert witness is not required to provide a written report, the disclosure shall state both of the following:
(1)The subject matter on which the expert witness is expected to present evidence.
(2)A summary of the facts and opinions to which the expert witness is expected to testify.
(d)A party shall make the required disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures shall be made at either of the following times:
(1)At least 90 days before the date set for trial or for the case to be ready for trial.
(2)If the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party, within 30 days after the other partys disclosure.
Unless the context otherwise requires, the following definitions govern the construction of this part:
(a)Adjudication action means an action filed in the superior or federal district court to determine the rights to extract groundwater from a basin or store water within a basin, including, but not limited to, actions to quiet title respecting rights to extract or store groundwater or an action brought to impose a physical solution on a basin.
(b)Basin means a groundwater basin or subbasin identified and defined in Bulletin 118 or as modified pursuant to Chapter 3 (commencing with Section 10722).
(c)Bulletin 118 means the departments report entitled Californias Groundwater: Bulletin 118 updated in 2003, as it may be subsequently updated or revised in accordance with Section 12924.
(d)Coordination agreement means a legal agreement adopted between two or more groundwater sustainability agencies that provides the basis for coordinating multiple agencies or groundwater sustainability plans within a basin pursuant to this part.
(e)De minimis extractor means a person who extracts, for domestic purposes, two acre-feet or less per year.
(f)Expert witness means a witness qualified pursuant to Section 720 of the Evidence Code.
(f)
(g)Governing body means the legislative body of a groundwater sustainability agency.
(g)
(h)Groundwater means water beneath the surface of the earth within the zone below the water table in which the soil is completely saturated with water, but does not include water that flows in known and definite channels.
(h)
(i)Groundwater extraction facility means a device or method for extracting groundwater from within a basin.
(i)
(j)Groundwater recharge means the augmentation of groundwater, by natural or artificial means.
(j)
(k)Groundwater sustainability agency means one or more local agencies that implement the provisions of this part. For purposes of imposing fees pursuant to Chapter 8 (commencing with Section 10730) or taking action to enforce a groundwater sustainability plan, groundwater sustainability agency also means each local agency comprising the groundwater sustainability agency if the plan authorizes separate agency action.
(k)
(l)Groundwater sustainability plan or plan means a plan of a groundwater sustainability agency proposed or adopted pursuant to this part.
(l)
(m)Groundwater sustainability program means a coordinated and ongoing activity undertaken to benefit a basin, pursuant to a groundwater sustainability plan.
(m)
(n)Local agency means a local public agency that has water supply, water management, or land use responsibilities within a groundwater basin.
(n)
(o)Operator means a person operating a groundwater extraction facility. The owner of a groundwater extraction facility shall be conclusively presumed to be the operator unless a satisfactory showing is made to the governing body of the groundwater sustainability agency that the groundwater extraction facility actually is operated by some other person.
(o)
(p)Owner means a person owning a groundwater extraction facility or an interest in a groundwater extraction facility other than a lien to secure the payment of a debt or other obligation.
(p)
(q)Personal information has the same meaning as defined in Section 1798.3 of the Civil Code.
(q)
(r)Planning and implementation horizon means a 50-year time period over which a groundwater sustainability agency determines that plans and measures will be implemented in a basin to ensure that the basin is operated within its sustainable yield.
(r)
(s)Public water system has the same meaning as defined in Section 116275 of the Health and Safety Code.
(s)
(t)Recharge area means the area that supplies water to an aquifer in a groundwater basin.
(t)
(u)Sustainability goal means the existence and implementation of one or more groundwater sustainability plans that achieve sustainable groundwater management by identifying and causing the implementation of measures targeted to ensure that the applicable basin is operated within its sustainable yield.
(u)
(v)Sustainable groundwater management means the management and use of groundwater in a manner that can be maintained during the planning and implementation horizon without causing undesirable results.
(v)
(w)Sustainable yield means the maximum quantity of water, calculated over a base period representative of long-term conditions in the basin and including any temporary surplus, that can be withdrawn annually from a groundwater supply without causing an undesirable result.
(w)
(x)Undesirable result means one or more of the following effects caused by groundwater conditions occurring throughout the basin:
(1)Chronic lowering of groundwater levels indicating a significant and unreasonable depletion of supply if continued over the planning and implementation horizon. Overdraft during a period of drought is not sufficient to establish a chronic lowering of groundwater levels if extractions and recharge are managed as necessary to ensure that reductions in groundwater levels or storage during a period of drought are offset by increases in groundwater levels or storage during other periods.
(2)Significant and unreasonable reduction of groundwater storage.
(3)Significant and unreasonable seawater intrusion.
(4)Significant and unreasonable degraded water quality, including the migration of contaminant plumes that impair water supplies.
(5)Significant and unreasonable land subsidence that substantially interferes with surface land uses.
(6)Depletions of interconnected surface water that have significant and unreasonable adverse impacts on beneficial uses of the surface water.
(x)
(y)Water budget means an accounting of the total groundwater and surface water entering and leaving a basin including the changes in the amount of water stored.
(y)
(z)Watermaster means a watermaster appointed by a court or pursuant to other law.
(z)
(aa)Water year means the period from October 1 through the following September 30, inclusive.
(aa)
(bb)Wellhead protection area means the surface and subsurface area surrounding a water well or well field that supplies a public water system through which contaminants are reasonably likely to migrate toward the water well or well field.
SEC. 2.Section 10735.8 of the Water Code is amended to read:10735.8.(a)The board, after notice and a public hearing, may adopt an interim plan for a probationary basin.
(b)The interim plan shall include all of the following:
(1)Identification of the actions that are necessary to correct a condition of long-term overdraft or a condition where groundwater extractions result in significant depletions of interconnected surface waters, including recommendations for appropriate action by any person.
(2)A time schedule for the actions to be taken.
(3)A description of the monitoring to be undertaken to determine effectiveness of the plan.
(c)The interim plan may include the following:
(1)Restrictions on groundwater extraction.
(2)A physical solution.
(3)Principles and guidelines for the administration of rights to surface waters that are connected to the basin.
(d) Except as provided in subdivision (e), the interim plan shall be consistent with water right priorities, subject to Section 2 of Article X of the California Constitution.
(e)The board shall include in its interim plan a groundwater sustainability plan, or any element of a plan, that the board finds complies with the sustainability goal for that portion of the basin or would help meet the sustainability goal for the basin. Where, in the judgment of the board, an adjudication action can be relied on as part of the interim plan, either throughout the basin or in an area within the basin, the board may rely on, or incorporate elements of, that adjudication into the interim plan adopted by the board.
(f)In carrying out activities that may affect the probationary basin, state entities shall comply with an interim plan adopted by the board pursuant to this section unless otherwise directed or authorized by statute and the state entity shall indicate to the board in writing the authority for not complying with the interim plan.
(g)(1)After the board adopts an interim plan under this section, the board shall determine if a groundwater sustainability plan or an adjudication action is adequate to eliminate the condition of long-term overdraft or condition where groundwater extractions result in significant depletions of interconnected surface waters, upon petition of either of the following:
(A)A groundwater sustainability agency that has adopted a groundwater sustainability plan for the probationary basin or a portion thereof.
(B)A person authorized to file the petition by a judicial order or decree entered in an adjudication action in the probationary basin.
(2)The board shall act on a petition filed pursuant to paragraph (1) within 90 days after the petition is complete. If the board, in consultation with the department, determines that the groundwater sustainability plan or adjudication action is adequate, the board shall rescind the interim plan adopted by the board for the probationary basin, except as provided in paragraphs (3) and (4).
(3)Upon request of the petitioner, the board may amend an interim plan adopted under this section to eliminate portions of the interim plan, while allowing other portions of the interim plan to continue in effect.
(4)The board may decline to rescind an interim plan adopted pursuant to this section if the board determines that the petitioner has not provided adequate assurances that the groundwater sustainability plan or judicial order or decree will be implemented.
(5)This subdivision is not a limitation on the authority of the board to stay its proceedings under this section or to rescind or amend an interim plan adopted pursuant to this section based on the progress made by a groundwater sustainability agency or in an adjudication action, action pursuant to Chapter 12 (commencing with Section 10737), even if the board cannot make a determination of adequacy in accordance with paragraph (1).
(h)Before January 1, 2025, the state board shall not establish an interim plan under this section to remedy a condition where the groundwater extractions result in significant depletions of interconnected surface waters.
(i)The boards authority to adopt an interim plan under this section does not alter the law establishing water rights priorities or any other authority of the board.
SECTION 1.SEC. 3.Chapter 12 (commencing with Section 10737) is added to Part 2.74 of Division 6 of the Water Code, to read:12.Determination of Rights to Groundwater1.General Provisions10737.(a)This The Legislature finds and declares that this chapter establishes a timely and comprehensive method for determining rights to groundwater in furtherance of the objectives of this part.
(b)It is the intent of the Legislature to subsequently amend this chapter to address all of the following:
(1)Basin boundaries pursuant to Article 3 (commencing with Section 10739).
(2)Notice and service.
(3)Provision of expert information and science.
(4)Fairness and balance under the law.
(5)Consistency with Winters v. United States (207 U.S. 564 (1908)), the McCarran Amendment (codified at 43 U.S.C. Sec. 666), and any other federal laws regarding the determination of federal or tribal water rights, as applicable.
(b)This chapter establishes special procedures for court use in determining rights to groundwater. Unless otherwise provided in this chapter, a court shall determine rights to groundwater using the procedures codified in the Code of Civil Procedure.
10737.2.In making its determination of rights to groundwater, a court shall avoid an undesirable results as defined in Section 10721.
2.Application10738.The process defined in this chapter shall be available to any court of competent jurisdiction.
10738.2.(a)Consistent with subdivision (b) of Section 10720.3, this chapter applies to an Indian tribe and to the federal government, to the extent authorized under federal law.
(b)Section 389 of the Code of Civil Procedure shall not apply to any failure to join an Indian tribe or the United States to an action or proceeding brought under this chapter.
10738.4.An action requesting a court to determine water rights under this chapter shall be deemed provisionally complex within the meaning provided in Rule 3.400 of Title 3 of the California Rules of Court.
3.Basin Boundaries10739.Unless other basin boundaries are established pursuant to Section 10722.2 or subdivision (b) of Section 12924, the boundaries of a basin shall be as identified in Bulletin 118.
4.Parties10740.Upon timely motion, the court shall permit the department or the Department of Fish and Wildlife, or both, to intervene in an action or proceeding brought under this chapter if the movant claims an interest relating to the action or proceeding and is so situated that disposing of the action or proceeding may, as a practical matter, impair or impede the movants ability to protect its interest.
5.Service and Notice10741.(a)All known defendants shall be served in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure.
(b)(1)All unknown defendants shall be served by publication as provided in Section 415.50 of the Code of Civil Procedure.
(2)In addition to other requirements of Section 415.50 of the Code of Civil Procedure, the publication shall describe the groundwater basin that is the subject of the action. The publication shall describe the groundwater basin as identified pursuant to Section 10739, the Internet address for a map depicting the basin, and any other identifying information that the court deems appropriate.
6.Discovery10742.(a)Except as otherwise stipulated or ordered by the court, a party shall, without awaiting a discovery request, provide to the other parties all of the following:
(1)The name and, if known, the address and telephone number of each individual likely to have discoverable information, along with the subjects of that information, who the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.
(2)A copy or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control that it may use to support its claims or defenses, unless the use would be solely for impeachment.
(3)A quantification of claims to water in the basin by the disclosing party. The disclosing party shall also make available for inspection and copying any documents or other evidentiary material, unless privileged or protected from disclosure, on which each claim is based, including materials bearing on the nature and extent of those claims.
(b)A party shall make all disclosures required by this article at or within 14 days after the parties initial case management conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in a proposed discovery plan. In ruling on the objection, the court shall determine what disclosures, if any, are to be made and shall set the time for disclosure.
(c)A party that is first served or otherwise joined after the initial case management conference shall make its initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.
(d)A party shall make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another partys disclosures or because another party has not made its disclosures.
7.Expert Witnesses10743.(a)In addition to the other disclosures required by this chapter, a party shall disclose to the other parties the identity of any expert witness it may use at trial to present evidence.
(b)Unless otherwise stipulated or ordered by the court, this disclosure shall be accompanied by a written report, prepared and signed by the expert witness, if the expert witness is retained or specially employed to provide expert testimony in the case or whose duties as the partys employee regularly involve giving expert testimony. The report shall contain all of the following:
(1)A complete statement of all opinions the expert witness will express and the basis and reasons for them.
(2)The facts or data considered by the expert witness in forming his or her opinions.
(3)Any exhibits that will be used to summarize or support the opinions of the expert witness.
(4)The expert witness qualifications, including a list of all publications authored in the previous 10 years.
(5)A list of all other cases in which, during the previous four years, the expert witness testified as an expert at trial or by deposition.
(6)A statement of the compensation to be paid to the expert witness for the study and testimony in the case.
(c)Unless otherwise stipulated or ordered by the court, if the expert witness is not required to provide a written report, the disclosure shall state both of the following:
(1)The subject matter on which the expert witness is expected to present evidence.
(2)A summary of the facts and opinions to which the expert witness is expected to testify.
(d)A party shall make the required disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures shall be made at either of the following times:
(1)At least 90 days before the date set for trial or for the case to be ready for trial.
(2)If the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party, within 30 days after the other partys disclosure.
TextPages 5, 8, and 11.(a)This chapter establishes a timely method for determining rights to groundwater in furtherance of the objectives of this part.
(b)It is the intent of the Legislature to subsequently amend this chapter to address all of the following:
(1)Basin boundaries pursuant to Article 3 (commencing with Section 10739).
(2)Notice and service.
(3)Provision of expert information and science.
(4)Fairness and balance under the law.
(5)Consistency with Winters v. United States (207 U.S. 564 (1908)), the McCarran Amendment (codified at 43 U.S.C. Sec. 666), and any other federal laws regarding the determination of federal or tribal water rights, as applicable.
2.Application10738.The process defined in this chapter shall be available to any court of competent jurisdiction.
3.Basin Boundaries10739.Unless other basin boundaries are established pursuant to Section 10722.2 or subdivision (b) of Section 12924, the boundaries of a basin shall be as identified in Bulletin 118.
|
Date
|
Status
|
|---|---|
| Sep 10, 2015 | In Senate. Concurrence in Assembly amendments pending. |
| Aug 17, 2015 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on APPR. |
| Aug 26, 2015 | August 26 set for first hearing. Placed on APPR. suspense file. |
| Aug 27, 2015 | Joint Rule 62(a) suspended. |
| Aug 31, 2015 | From committee: Do pass as amended. (Ayes 12. Noes 0.) (August 27). |
| Sep 1, 2015 | Read second time and amended. Ordered to second reading. |
| Sep 2, 2015 | Read second time. Ordered to third reading. |
| Sep 3, 2015 | Ordered to third reading. |
| Sep 3, 2015 | Read third time and amended. |
| Jul 7, 2015 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 7. Noes 3.) (July 7). Re-referred to Com. on APPR. |
| Sep 10, 2015 | Read third time. Passed. Ordered to the Senate. |
| Sep 10, 2015 | Read third time. Passed. (Ayes 74. Noes 3. Page 3088.) Ordered to the Senate. |
| Sep 11, 2015 | Assembly amendments concurred in. (Ayes 40. Noes 0. Page 2750.) Ordered to engrossing and enrolling. |
| Sep 11, 2015 | Assembly amendments concurred in. (Ayes 40. Noes 0.) Ordered to engrossing and enrolling. |
| Sep 16, 2015 | Enrolled and presented to the Governor at 4:45 p.m. |
| Oct 9, 2015 | Approved by the Governor. |
| Oct 9, 2015 | Chaptered by Secretary of State. Chapter 676, Statutes of 2015. |
| May 5, 2015 | Read second time and amended. Re-referred to Com. on APPR. |
| Feb 17, 2015 | From printer. May be acted upon on or after March 19. |
| Feb 26, 2015 | Referred to Coms. on N.R. & W. and JUD. |
| Mar 26, 2015 | Set for hearing April 14. |
| Apr 6, 2015 | (Corrected April 9) |
| Apr 6, 2015 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on N.R. & W. |
| Apr 14, 2015 | From committee: Do pass and re-refer to Com. on JUD. (Ayes 6. Noes 2. Page 592.) (April 14). Re-referred to Com. on JUD. |
| Apr 21, 2015 | Set for hearing April 28. |
| May 4, 2015 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 5. Noes 1. Page 818.) (April 28). |
| Feb 13, 2015 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
| May 8, 2015 | Set for hearing May 18. |
| May 18, 2015 | From committee: Be ordered to second reading pursuant to Senate Rule 28.8. |
| May 19, 2015 | Read second time. Ordered to third reading. |
| May 26, 2015 | In Assembly. Read first time. Held at Desk. |
| May 26, 2015 | Read third time. Passed. (Ayes 23. Noes 14. Page 1098.) Ordered to the Assembly. |
| Jun 11, 2015 | Referred to Coms. on W., P., & W. and JUD. |
| Jun 30, 2015 | From committee: Do pass and re-refer to Com. on JUD. (Ayes 8. Noes 5.) (June 30). Re-referred to Com. on JUD. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 11, 2015 | Unfinished Business SB226 Pavley Concurrence | Senate Floor |
Passed |
|
| Sep 10, 2015 | SB 226 Pavley Senate Third Reading By ALEJO | Assembly Floor |
Passed |
|
| Aug 27, 2015 | Do pass as amended. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jul 7, 2015 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Judiciary |
Passed |
|
| Jun 30, 2015 | Do pass and be re-referred to the Committee on [Judiciary] | Assembly Standing Committee on Water, Parks, and Wildlife |
Passed |
|
| May 26, 2015 | Senate 3rd Reading SB226 Pavley | Senate Floor |
Passed |
|
| Apr 28, 2015 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Judiciary |
Passed |
|
| Apr 14, 2015 | Do pass, but first be re-referred to the Committee on [Judiciary] | Senate Standing Committee on Natural Resources and Water |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| African American Farmers of California | ** Against | Jul 7, 2015 |
| Agricultural Council Of California | ** Support | Sep 10, 2015 |
| All Outdoors | ** Support | Jul 7, 2015 |
| Almond Hullers And Processors Association | ** Support | Sep 10, 2015 |
| American River Conservancy | ** Support | Jul 7, 2015 |
| American River Touring Association Inc. | ** Support | Jul 7, 2015 |
| American Whitewater | ** Support | Jul 7, 2015 |
| Association Of California Egg Farmers | ** Support | Sep 10, 2015 |
| California Association Of Wheat Growers | ** Support | Sep 10, 2015 |
| California Bean Shippers Association | ** Support | Sep 10, 2015 |
| California Canoe and Kayak | ** Support | Jul 7, 2015 |
| California Cattlemen'S Association | ** Support | Sep 10, 2015 |
| California Chamber Of Commerce | ** Support | Sep 10, 2015 |
| California Citrus Mutual | ** Against | May 26, 2015 |
| California Cotton Ginners Association | ** Against | May 26, 2015 |
| California Farm Bureau Federation | ** Support | Sep 10, 2015 |
| California Grain and Feed Association | ** Support | Sep 10, 2015 |
| California League Of Conservation Voters | ** Support | Sep 10, 2015 |
| California Outdoors | ** Support | Jul 7, 2015 |
| California Pear Growers Association | ** Support | Sep 10, 2015 |
| California Seed Association | ** Support | Sep 10, 2015 |
| California Sportfishing Protection Alliance | ** Support | Jul 7, 2015 |
| California Water Impact Network | ** Support | Jul 7, 2015 |
| Clean Water Action California | ** Support | Sep 10, 2015 |
| Community Water Center | ** Support | Sep 10, 2015 |
| Delta Kayak Adventures | ** Support | Jul 7, 2015 |
| Foothill Conservancy | ** Support | Jul 7, 2015 |
| Friends of the Eel River | ** Support | Jul 7, 2015 |
| Friends of the River | ** Support | Jul 7, 2015 |
| Friends of the San Francisco Estuary | ** Support | Jul 7, 2015 |
| Leadership Counsel for Justice & Accountability | ** Support | Sep 10, 2015 |
| Merced River Conservation Committee | ** Support | Jul 7, 2015 |
| North Coast Rivers Alliance | ** Support | Jul 7, 2015 |
| Pacific Egg and Poultry Association | ** Support | Sep 10, 2015 |
| Planning And Conservation League | ** Support | Jul 7, 2015 |
| Restore Hetch Hetchy | ** Support | Jul 7, 2015 |
| Restore the Delta | ** Support | Jul 7, 2015 |
| Rivers for Change | ** Support | Jul 7, 2015 |
| Rose Foundation for Communities and the Environment | ** Support | Jul 7, 2015 |
| Sacramento River Preservation Trust | ** Support | Jul 7, 2015 |
| Save the American River Association | ** Support | Jul 7, 2015 |
| Sierra Club California | ** Support | Sep 10, 2015 |
| Sierra Nevada Alliance | ** Support | Jul 7, 2015 |
| Smith River Alliance | ** Support | Jul 7, 2015 |
| South Yuba River Citizens League | ** Support | Jul 7, 2015 |
| The Nature Conservancy | ** Support | Sep 10, 2015 |
| Tuolumne River Trust | ** Support | Jul 7, 2015 |
| Western Growers Association | ** Support | Sep 10, 2015 |
| Winnemem Wintu Tribe | ** Support | Jul 7, 2015 |
SB 226
Page 7
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
UNFINISHED BUSINESS
Bill No: SB 226
Amended: 9/3/15
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
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.
Existing law:
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.
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.
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.
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 competent jurisdiction in this state for determination of rights to water.
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.
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.
Authorizes a local agency to request that the DWR revise the boundaries of a basin.
Authorizes state board to designate certain high- and medium-priority basins as a probationary basin if certain criteria are met.
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:
Authorizes the state to intervene in a comprehensive adjudication conducted as specified in AB 1390 (Alejo) of the 2015–16 Regular Session.
Requires a court, in an adjudication action to determine rights to groundwater in a basin that is required to have a GSP under SGMA, to manage the proceedings in a manner that:
Minimizes interference with the timely completion and implementation of a 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 within the timeframes established by SGMA.
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.
Prohibits the provisions relating to probationary basins and interim plans from applying to a judgment approved by the court if:
The judgment is submitted to DWR for evaluation and assessment, and
DWR determines that the judgment satisfies the objectives of SGMA for the basin.
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.
Prohibits a court from approving entry of judgment in an 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.
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.”
Related Legislation
SB 226 and AB 1390 (Alejo) constitute a single adjudication proposal split into two contingently enacted bills. Briefly:
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.
AB 1390 includes all process and procedural changes necessary to accelerate adjudications without changing groundwater rights law.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: 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.
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
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:
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.
AB 1390 includes all process and procedural changes necessary to accelerate adjudications without changing groundwater 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
**** END ****
SB 226
Page 4
SENATE THIRD READING
SB 226
(Pavley)
As Amended September 3, 2015
Majority vote
SENATE VOTE: 23-14
Committee |
Votes |
Ayes |
Noes |
Water |
8-5 |
Levine, Dababneh, Dodd, Cristina Garcia, Gomez, Lopez, Rendon, Williams |
Bigelow, Dahle, Beth Gaines, Harper, Mathis |
Judiciary |
7-3 |
Mark Stone, Alejo, Chau, Chiu, Cristina Garcia, Holden, O'Donnell |
Wagner, Gallagher, Maienschein |
Appropriations |
12-0 |
Gomez, Bloom, Bonta, Calderon, Nazarian, Eggman, Eduardo Garcia, Holden, Quirk, Rendon, Weber, Wood |
|
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:
Acknowledges the state's current ability to intervene in a comprehensive adjudication, but does not expand the authority of any state agency.
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.
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).
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.
Adds a new Chapter 12 to SGMA titled Determination of Rights to Groundwater and states that except as provided in that Chapter, adjudication actions shall be conducted in accordance with the new CCP provisions.
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.
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.
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.
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.
Is operative only if AB 1390 is also enacted and becomes effective.
Includes conforming changes to avoid conflicting with the technical corrections to SGMA contained in SB 13 (Pavley) of the current legislative session.
EXISTING LAW:
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.
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.
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.
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.
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.
Allows a local agency to file a request with DWR to revise groundwater basin boundaries.
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.
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.
Requires, by January 31, 2022, that GSAs in all other high and medium priority basins subject to SGMA develop and adopt GSPs.
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 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 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 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.
Analysis Prepared by: Tina Leahy / W., P., & W. / (916) 319-2096 FN: 0002266
SB 226
Page 4
SENATE THIRD READING
SB 226
(Pavley)
As Amended September 1, 2015
Majority vote
SENATE VOTE: 23-14
Committee |
Votes |
Ayes |
Noes |
Water |
8-5 |
Levine, Dababneh, Dodd, Cristina Garcia, Gomez, Lopez, Rendon, Williams |
Bigelow, Dahle, Beth Gaines, Harper, Mathis |
Judiciary |
7-3 |
Mark Stone, Alejo, Chau, Chiu, Cristina Garcia, Holden, O'Donnell |
Wagner, Gallagher, Maienschein |
Appropriations |
12-0 |
Gomez, Bloom, Bonta, Calderon, Nazarian, Eggman, Eduardo Garcia, Holden, Quirk, Rendon, Weber, Wood |
|
SUMMARY: Adds a new chapter to the Sustainable Groundwater Management Act (SGMA) that integrates and streamlines the groundwater adjudication process for groundwater basins that are subject to SGMA. Specifically, this bill:
Clarifies that the state may intervene as a matter of right in any suit brought in any court for determination of rights to water. Specifies that this does not change substantive law.
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 SGMA's objectives.
Allows 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 the Code of Civil Procedure.
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.
Adds a new Chapter 12 to SGMA titled Determination of Rights to Groundwater and states that except in that Chapter, adjudication actions shall be conducted in accordance with Chapter 7 of the Code of Civil Procedure.
Directs the court, in an adjudication of a basin subject to 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.
Provides that State enforcement under SGMA shall not apply to a court-approved stipulated groundwater adjudication judgment if the stipulated judgment is submitted to DWR and DWR determines it is a SGMA GSP equivalent 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.
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.
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.
Is operative only if AB 1390 is also enacted and becomes effective.
Includes conforming changes to avoid conflicting with the technical corrections to SGMA contained in SB 13 (Pavley) of the current legislative session.
EXISTING LAW:
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.
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.
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.
Allows a local agency to file a request with DWR to revise groundwater basin boundaries.
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 that DWR determines are functionally equivalent to SGMA GSPs.
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.
Requires, by January 31, 2022, that GSAs in all other high and medium priority basins subject to SGMA develop and adopt GSPs.
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 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 general procedures 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 that 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 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 take an extraordinarily long time and are extraordinarily 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 the requirements of SGMA 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 would be accommodated within SGMA without changing any of the policies inherent within SGMA while AB 1390 includes all process and procedural changes necessary to accelerate adjudications without changing 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.
It is unclear whether opposition to this bill remains. 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.
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.
Analysis Prepared by: Tina Leahy / W., P., & W. / (916) 319-2096 FN: 0001880
Date of Hearing: August 26, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
SB 226
(Pavley) – As Amended August 17, 2015
Policy Committee: |
Water, Parks and Wildlife |
Vote: |
8 - 5 |
|
Judiciary |
|
7 - 3 |
|
|
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill modifies the Sustainable Groundwater Management Act (SGMA) and streamlines groundwater adjudication procedures. Specifically, this bill:
Establishes a comprehensive, streamlined procedure to be used in legal actions to obtain a basin-wide adjudication of groundwater rights within SGMA.
Authorizes the state to intervene in any water rights suit brought in any court.
Adds legislative intent language in SGMA to provide a more efficient, cost-effective groundwater adjudication process as specified.
Allows a court with jurisdiction over specified adjudicated basins to order the proceeding to be conducted according to the adjudicated process specified in the bill.
Defines expert witness and small state water system.
Makes conforming changes and technical clarifications.
FISCAL EFFECT:
Unknown costs, potentially in the hundreds of thousands of dollars, for state agency intervention in water rights suits.
COMMENTS:
Purpose. According to the author, 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 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. Groundwater is either a subterranean stream flowing through a known and definite channel or percolating groundwater. Groundwater that is a subterranean stream is subject to the same State Water Resources Control Board (SWRCB) water right permitting requirements as surface water. There is no statewide permitting requirement for percolating groundwater, which is the majority of groundwater in the state.
The Department of Water Resources (DWR) is required to prioritize groundwater basins based on multiple factors including, but not limited to, the level of population and irrigated acreage relying on the groundwater basin as a primary source of water and the current impacts on the groundwater basin from overdraft, subsidence, saline intrusion and other water quality degradation.
The groundwater basins identified in DWR's Groundwater Report, Bulletin 118, are required to be regularly and systematically monitored locally and the information is required to be readily and widely available. DWR is required to perform the groundwater elevation monitoring function if no local entity will do so, but then bars the county and other entities eligible to monitor that basin from receiving state water grants or loans.
The Sustainable Groundwater Management Act (SGMA). Last year, AB 1739 (Dickinson, Chapter 347, Statutes of 2014) and SB 1168 (Pavley, Chapter 346, Statutes of 2014), established landmark state policy and requirements for groundwater sustainability and management. By January 31, 2020, SGMA requires groundwater sustainability plans (GSPs) in all groundwater basins experiencing critical conditions of overdraft that DWR determines to be of medium or high priority. SGMA requires sustainable groundwater management plans for all other medium or high priority basins by January 31, 2022, unless the basin is legally adjudicated or the local agency establishes it is otherwise sustainably managed.
SGMA requires local agencies to identify or form a groundwater sustainability agency (GSA) by January 1, 2017. Counties are presumed to be the default agency if no other agency identifies itself. Water corporations regulated by the PUC are able to participate in the GSA if other agencies approve.
During last year's Committee hearings on groundwater management, California Court of Appeal Judge Ronald Robie suggested that even with comprehensive sustainable management plans, the state would still need to streamline its groundwater adjudication procedures. Governor Brown made the same point when he signed the SGMA legislation.
Related Legislation. AB 1390 (Alejo) currently pending in Senate Appropriations, establishes an alternative adjudication process in the Civil Code of Procedures, rather than within SGMA as proposed by SB 226. The most recent amendments to SB 226, provided by the Administration, contain many provisions similar to those in AB 1390. The two authors may wish to work together to develop a legislative response to the Administration's amendments.
Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081
SB 226
Page 7
Date of Hearing: July 7, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB 226
(Pavley) – As Amended May 5, 2015
SENATE VOTE: 23-14
SUBJECT: Sustainable Groundwater Management Act: groundwater rights
KEY ISSUE: Should procedures for SEEKING AND obtaining a basin-wide groundwater ADJUDICATION BE streamlined, especially as to the early and time-consuming phase of such adjudications in which basin boundaries are identified, Parties are identified and served, and pre-trial discovery is conducted?
SYNOPSIS
Last year, when Governor Brown signed the historic package of bills constituting the Sustainable Groundwater Management Act (SGMA), he noted that the Legislature still needed to find ways to streamline the determination of groundwater rights because the process remains notoriously costly and time-consuming. Although a number of bills introduced during the current session are follow-up measures to SGMA, two bills, in particular, seek to streamline the process of groundwater adjudication: AB 1390 (Alejo), which this Committee heard earlier in the current session, and the bill now before the Committee: SB 226 (Pavley). While both AB 1390 and SB 226 will streamline adjudication, there are three important differences between the bills. First, SB 226 is placed within SGMA's statutory framework in the Water Code, while AB 1390 adds a chapter to the Code of Civil Procedure, independent of SGMA. Second, SB 226 is more limited and focuses on streamlining the early phase of litigation, including the process of identifying of basin boundaries, identifying and serving parties, and making required disclosures prior to discovery. AB 1390 addresses these issues and many others, setting forth detailed procedures that cover the entire course of litigation, from commencement to the appointment of special masters. Third, SB 226 expressly authorizes the Department of Water Resources and the Department of Fish and Game to intervene as parties. This bill is supported by several environmental, conservation, and water recreation groups. It is opposed by several farm and grower associations that prefer AB 1390 to the bill under consideration. However, it should be noted that both bills serve the same goal of streamlining adjudication and are fully consistent with each other in that regard. Despite the suggestions of some opponents, this bill does not alter any existing statutory or common law rights. Both AB 1390 and SB 226 streamline the procedure for adjudicating rights; neither bill alters existing groundwater rights or remedies. This bill recently passed out of the Assembly Water, Parks, and Wildlife Committee on an 8-5 vote.
SUMMARY: Establishes special procedures for court adjudication of groundwater rights. Specifically, this bill:
Establishes special procedures for timely and comprehensive procedures by which any court of competent jurisdiction shall determine groundwater rights and requires a court to use procedures codified in the Code of Civil Procedure, unless otherwise provided. Specifies that nothing in the provisions of this bill shall be deemed to repeal or preclude an action to determine rights to groundwater in accordance with the common law.
Specifies that the provisions of this bill will only apply to rights claimed by an Indian tribe or the federal government to the extent authorized by federal and tribal law.
Provides that an action requesting a court to determine water rights under this bill shall be deemed provisionally complex as provided in Rule 3.400 Title 3 of the California Rules of Court.
Requires the boundaries of a basin to be identified by using Bulletin 118 of the Department of Water Resources, unless other basin boundaries are established pursuant to SGMA.
Authorizes the Department of Water Resources 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.
Requires all known defendants to be served by personal service in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure.
Requires all unknown defendants to be served by publication as provided in Section 415.50 of the Code of Civil Procedure. Specifies that, in addition to other requirements required under this section, the publication shall describe the groundwater basin, as specified, the Internet address for a map depicting the basin, and any other identifying information the court deems appropriate.
Requires a party, without awaiting a discovery request, to provide specified initial disclosures to the other parties, including, among the other things, the name and contact information of persons likely to have discoverable information; a copy or description, by category and location, any documents or tangible things that the disclosing party has in its possession and which the party may use at trial to support claims or defenses; and a quantification of claims to water in the basin, as specified. Specifies the timelines and manner for making these initial disclosures.
Provides that, in addition to other initial disclosures required by this bill, a party shall disclose to the other parties the identity of any expert witness that it may use at trial to present evidence. Unless otherwise stipulated or ordered by the court, this initial disclosure shall be accompanied by a written report, prepared and signed by the expert witness. The report shall contain specified information, including, among other things, a complete statement of all opinions, facts, and exhibits that the expert witness will present at trial, and a summary of the expert's qualifications, including publications and a list of all cases in which the witness has offered expert testimony over the previous four years.
EXISTING LAW:
Declares that because of the conditions prevailing in this State the general welfare requires that the water resources of the state shall be put to beneficial use to the fullest extent to which they are capable, and that the waste or unreasonable use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof and in the interest of the people and the public welfare. (California Constitution, Article X Section 2.)
Requires local agencies, under the Sustainable Groundwater Management Act (SGMA), to 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 Groundwater Sustainability Plans (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. (California Water Code Section 10720 et seq.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: For the past 100 years, California has had a water commission (currently called the State Water Resources Control Board) that uses a permit system to regulate surface waters. However, the state lacked a comprehensive regulatory approach for groundwater regulation until the passage of the Sustainable Groundwater Management Act (SGMA) last year. Instead of creating a state board or commission, as the Legislature did in 1913 to regulate surface waters, SGMA requires local agencies to develop "groundwater sustainability agencies" (GSAs) that conform with state standards, with the additional caveat that if the locals fail to develop a groundwater plan, the State Water Resources Control Board (SWRCB) will do it for them. SGMA applies to those water basins designated as either "high" or "medium" priority basins subject to a chronic overdraft. As such, SGMA applies to only 127 of the state's 515 water basins. Under the timeline established by SGMA, designated local entities in a given basin must create Groundwater Sustainability Agencies (GSAs) by June 30 of 2017, and the GSAs in turn must develop Groundwater Sustainability Plans (GSPs) by January 31, 2020, or January 31, 2022, depending upon the severity of their overdraft problem. If the local agencies fail to form a GSA, if the GSA fails to adopt a GSP, or if the state does not approve the plan, then SWRCB will step in and develop and implement an interim plan. The primary purpose of the GSP is to ensure groundwater sustainability, whether by limiting pumping, or requiring more efficient use of groundwater, so that the amount of water pumped out of the basin is less than, or equal to, the rate of water returned to the basin by natural or artificial recharge.
Existing Adjudication Procedures. Prior to SGMA, groundwater rights were regulated, if at all, by "Watermasters" appointed by the courts to oversee a court-ordered adjudication. According to the testimony offered last year by Court of Appeal Judge Ronald Robie during the Senate Natural Resource hearings, an adjudication begins when a person brings a court action, often to quiet title in his or her groundwater rights, and asks the court to either limit pumping, or impose a "physical solution" that will allocate and manage water use in order to prevent an overdraft. As Judge Robie noted, bringing a lawsuit can be a long and complicated process because there may be thousands of rights holders within a basin, each with a different kind of right. Under California groundwater law, a person can have "overlying rights" (by virtue of owning land over the groundwater), "appropriative rights" (by appropriating surplus groundwater and transferring it to non-overlying lands), or "prescriptive rights" (by adversely appropriating non-surplus water for a specified period of time without a rights holder taking action to stop it). Regardless of the type of right that is claimed, the amount of water is generally based upon the right holder's historic usage. Determining such rights depends upon any number of factual questions, which may or may not be well-documented, such as how much water a person put to reasonable and beneficial use in past years; the timing of an appropriation; whether the water appropriated was surplus or non-surplus; and whether one claiming a prescriptive right actually appropriated the water "adversely" and met the statutory time period. To help the court determine these rights, the parties usually must first engage in extensive pleading and discovery.
SB 226 would expedite this adjudication process. The bill will establish special procedures for courts to use in determining the rights to groundwater within a groundwater basin. Specifically, the bill will do the following: streamline disputes over basin boundaries by relying on the Bulletin 118 of the Department of Water resources; facilitate notice and service requirements, in part by allowing for notice and service by publication for unknown defendants; require initial disclosure of discoverable information, including information pertaining to expert witnesses, without awaiting a discovery request; and permit the Department of Water Resources and the Department of Fish and Wildlife to intervene as parties.
SB 226 and AB 1390 Comparison: As noted, this Committee already heard and passed AB 1390 (Alejo), which like this bill sought to streamline groundwater adjudication. The authors of both bills contend that they are responding to the Governor's call, upon signing the SGMA legislation last year, to address the problem of prolonged groundwater litigation, which in some cases can drag on for a decade or more. While both AB 1390 and SB 226 seek to streamline adjudication, there are some important differences between the two bills:
SB 226 amends SGMA's statutory framework in the Water Code, while AB 1390 adds a chapter to the Code of Civil Procedure, independent of SGMA. When AB 1390 was heard before this committee, there was much discussion of the relationship between AB 1390 and SGMA. SB 226 highlights the essential compatibility of its streamlined adjudication process by placing its provisions within SGMA and expressly declaring that the procedures it establishes for determining groundwater rights must be "in furtherance of the objectives of this part [i.e. SGMA]." SB 226 also provides that, in making its determination of rights to groundwater, a court shall avoid an "undesirable result," as defined in SGMA. (SGMA generally defines an "undesirable result" as one that leads to chronic lowering of groundwater levels, degradation of water quality, land subsidence, or depletion of surface water.) AB 1390 only provides that where the adjudication occurs in a basin that is subject to SGMA, the court should "encourage the parties to cooperatively develop a groundwater sustainability plan that may serve as the basis of a stipulated judgment setting forth a physical solution for management of the basin."
SB 226 is more limited in that it focuses on streamlining the earlier phases of litigation, including identification of basin boundaries, identification and service of parties, and requiring initial disclosures prior to discovery. AB 1390 addresses these issues and many others, setting forth detailed procedures that cover the entire course of litigation, from commencement of the action to the appointment of special masters.
SB 226 expressly authorizes the Department of Water Resources and the Department of Fish and Game to intervene as parties to the extent that either agency claims an interest relating to the action or if the resolution of the action could impair or impede the ability of the agency to protect its interest. AB 1390 does not contain any such express provision, though it is not clear whether AB 1390 would necessarily preclude either agency from intervening.
Despite these differences, it should be noted that both bills serve the same goal of streamlining adjudication and are fully consistent with each other in that regard. Despite the suggestions of some opponents, this bill does not alter any existing statutory or common law rights. Both AB 1390 and SB 226 streamline the procedure for adjudicating rights; neither bill alters existing rights or remedies.
ARGUMENTS IN SUPPORT: This bill is supported by several environmental, conservation, and water recreation groups. These supporters believe that SB 226 will create a streamlined process for judicial adjudication of groundwater basins in a manner that protects individual rights, ensures the prevention of "undesirable results" as defined by SGMA, and allows agency intervention where environmental concerns necessitate it. 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."
ARGUMENTS IN OPPOSITION: Many of the opponents of this bill do not seem to object to its provisions so much as preferring AB 1390, which they claim will add "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," but 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
Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334
SB 226
Page 7
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: SB 226
Amended: 5/5/15
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
SUBJECT: Sustainable Groundwater Management Act: groundwater rights
DIGEST: This bill establishes special procedures for courts use in determining rights to groundwater under the Sustainable Groundwater Management Act (SGMA). This bill specifies procedures for, among other things, making determinations of rights to groundwater under SGMA, for serving notice to unknown parties, for providing initial disclosure of discoverable information, including information pertaining to expert witnesses, and for intervention by the Department of Water Resources and the Department of Fish and Wildlife.
ANALYSIS: Last session the Legislature enacted the SGMA (SB 1168, Pavley, Chapter 346, Statutes of 2014). Among other things, 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.
This bill:
Adds a new Chapter 12 to SGMA titled DETERMINATION OF RIGHTS TO GROUNDWATER. Specifically:
Finds and declares that it establishes a timely and comprehensive method for determining rights to groundwater.
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.
Requires the process for determining rights to groundwater to be available to any court of competent jurisdiction.
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.
Directs a court, in making its determination of rights to groundwater, to avoid undesirable results as defined in SGMA.
Provides that it applies to Indian tribes and the federal government to the extent authorized by federal and tribal law.
Requires the boundaries of a basin to be as identified in Bulletin 118, unless other basin boundaries are established pursuant to SGMA.
Authorizes the Department of Water Resources and the Department of Fish and Wildlife to intervene in an action or proceeding if they claim an interest relating to the action or proceeding.
Specifies service and notice procedures.
Requires a party to provide specified initial disclosures to the other parties, including, among other disclosures, information relating to expert witnesses.
2) Makes other conforming and technical changes to the Water Code.
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.
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.”
There Is A Question Of Where To Put The Improvements. This bill proposes to put the changes to the groundwater adjudication process in SGMA to ensure that any future adjudication is done so “in furtherance of the objectives” of SGMA. The Farm Bureau prefers to put such changes in the Code of Civil Procedure instead.
There Is A Question Of How The System Should Be Improved. There seems to be broad agreement on what things slow down the adjudication process. These include things like determining basin boundaries, notice and service of affected parties, discovery, relitigation of previous determinations of fact or law, identification of and testimony of expert witnesses, and challenging judges for alleged bias. There is less agreement on which aspects of the adjudication can be addressed and how they can be addressed without compromising due process considerations.
Protection Of the Environment. At the November 2014 hearing, in response to a question regarding whether it would be helpful to clarify in the law how to address, for example, areas where there is a very clear surface-groundwater interaction, Justice Robie observed that groundwater adjudications are “a common law proceeding and common law doesn’t provide for protection of ecosystems. In other words, when you have a groundwater adjudication, protection of ecosystems or environmental factors of that type are not currently covered in what you normally raise in an adjudication … subsidence and things like that, they haven’t dealt with …but you get to that frequently in practical matter through CEQA where mitigation is required, but an adjudication of course is not subject to CEQA, so I think you pointed to something that could be added to it. In an adjudication, you only have the right holders present. There’s no place for intervention by public interest groups or anybody else that I’m aware of.”
This bill authorizes the Department of Water Resources and the Department of Fish and Wildlife to intervene in an action or proceeding if they claim an interest relating to the action or proceeding.
As noted in the Senate Judiciary Committee analysis of this bill, merely allowing these Departments to join as parties to an adjudication would not lead to the recognition of a groundwater right. Just like any other party, these Departments would have to establish their claim to groundwater in the basin under applicable law. Further, it would be premature to conclude as a matter of law that these Departments could not claim a right to groundwater in basins undergoing adjudication, particularly in light of recent court decisions recognizing that certain quantities of groundwater may be subject to the public trust doctrine.
Related Legislation
AB 1390 (Alejo, 2015) streamline the procedures used in a legal action to obtain a basin-wide adjudication of groundwater rights by adding a new chapter to the Code of Civil Procedure.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
All Outdoors
American River Conservancy
American River Touring Association Inc.
American Whitewater
California Canoe and Kayak
California Outdoors
California Sportfishing Protection Alliance
California Water Impact Network
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
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
Tuolumne River Trust
Winnemem Wintu Tribe
OPPOSITION: (Verified 5/19/15)
African American Farmers of California
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 Tomato Growers Association
National Hmong American Farmers
Nisei Farmers League
Western Agricultural Processors Association
Western Plant Health Association
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 tackles head on the various time sinks witnesses identified at this committee’s hearing last November on groundwater adjudication. SB 226 addresses these issues as follows:
Basin Boundaries – boundaries shall be as identified in DWR’s Bulletin 118, unless modified as provided in SGMA.
Notice & Service – notice to known parties is as provided in the Code of Civil Procedures (CCP). Unknown parties would be served by publication.
Discovery – follows the Federal procedures, which require disclosure of specific items without awaiting a discovery request.
Expert Witness – follows the Federal procedures, which require an expert witness to provide a written report on opinions the witness will express and the basis and reasons for them.”
“With these changes, SB 226 will reduce needless delays while still protecting due process rights.”
ARGUMENTS IN OPPOSITION: The California Farm Bureau Federation writes, “When Governor Brown signed the Sustainable Groundwater Management Act (SGMA) bill package last year, interest in improving the groundwater adjudication process was expressed by the Administration and authors of the bill package. The Farm Bureau has worked with many others since the SGMA was signed into law and has introduced a comprehensive bill (AB 1390 – Alejo) to address the issues 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. These changes will reduce the burden of groundwater adjudications on both the courts and claimants without altering the law of groundwater rights without disruption the Sustainable Groundwater Management Act planning process. While we appreciate [Senator Pavley’s] interest in the issue of adjudication we respectfully prefer the approach offered in AB 1390.”
“SB 226 makes changes to the SGMA that already includes significant groundwater reforms which focuses on improving the sustainability and reliability of California’s groundwater basins. We believe that the SGMA should be given time to be implemented and that it is premature to make significant policy changes to the Act at this time.”
Prepared by: Dennis O'Connor / N.R. & W. / (916) 651-4116
5/21/15 11:20:32
**** END ****
SB 226 (Pavley)
Page 10 of 10
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 226 (Pavley)
Version: April 6, 2015
Hearing Date: April 28, 2015
Fiscal: Yes
Urgency: No
TH
SUBJECT
Sustainable Groundwater Management Act: Groundwater Rights
DESCRIPTION
This bill would establish special procedures for courts use in determining rights to groundwater under the Sustainable Groundwater Management Act (SGMA). This bill would specify procedures for, among other things, making determinations of rights to groundwater under SGMA, for serving notice to unknown parties, for providing initial disclosure of discoverable information, including information pertaining to expert witnesses, and for intervention by the Department of Water Resources and the Department of Fish and Wildlife.
BACKGROUND
Groundwater adjudications -- civil cases to determine rights to groundwater in a particular area -- are among the lengthiest court proceedings in California. These cases typically involve hundreds if not thousands of parties, often with conflicting claims over the right to extract groundwater. According to one commenter:
There is a joke among lawyers that working on one groundwater adjudication can make your career. The laborious court process settles fights over rights to the state's increasingly overtapped aquifers and sets out long-term management plans for them. And while they are crucial to resolving water rights disputes, getting there is not easy.
Case in point is an adjudication of the Antelope Valley groundwater basin, which 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 rights. 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 9,404 docket entries in the case so far and more than 100 lawyers listed on the case . . .
There are several reasons these cases take so long, and attorneys agree some parts of the process could be improved to speed them up. Finding a way to expedite the service process is one. Identifying all the parties and getting them personally served is “a very lengthy and expensive and not very reliable process,” said Thomas S. Bunn, with Lagerlof, Senecal, Gosney & Kruse LLP, who is involved in the Antelope Valley adjudication. He said it took six years to serve the parties in that case.
Discovery is also a real headache because a lot of time is spent trying to figure out the basic information in the case - who is pumping, how much they are pumping, how much water they are claiming a right to and how they use the water . . . Requiring litigants to provide that information up front could cut a big chunk off time and expense . . . (Fiona Smith, State Looking to Speed Groundwater Lawsuits, Daily Journal (Oct. 29, 2014).)
This bill would create special procedures for adjudicating rights to water in groundwater basins under the Sustainable Groundwater Management Act (Wat. Code Sec. 10720 et seq.). It would provide that in making determinations of rights to groundwater, a court shall avoid undesirable results, as defined. This bill would also provide special procedures for conducting initial discovery, for determining the boundaries of a groundwater basin, for serving affected parties, and for allowing the Departments of Water Resources and Fish and Wildlife to intervene in an adjudication.
CHANGES TO EXISTING LAW
Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as basins subject to critical conditions of overdraft to be managed under a groundwater sustainability plan by January 31, 2020, and requires all other groundwater basins designated as high- or medium-priority basins by the Department of Water Resources to be managed under a groundwater sustainability plan by January 31, 2022, except as specified. (Wat. Code Sec. 10720 et seq.)
Existing law defines “undesirable result” to mean one or more of the following effects caused by groundwater conditions occurring throughout a groundwater basin:
chronic lowering of groundwater levels indicating a significant and unreasonable depletion of supply if continued over the planning and implementation horizon, as specified;
significant and unreasonable reduction of groundwater storage;
significant and unreasonable seawater intrusion;
significant and unreasonable degraded water quality, including the migration of contaminant plumes that impair water supplies;
significant and unreasonable land subsidence that substantially interferes with surface land uses; or
depletions of interconnected surface water that have significant and unreasonable adverse impacts on beneficial uses of the surface water. (Wat. Code Sec. 10721(w).)
This bill would find and declare that it establishes special procedures for courts to use in determining rights to groundwater, and that unless otherwise provided, a court shall determine rights to groundwater using the procedures codified in the Code of Civil Procedure.
This bill would provide that in making its determination of rights to groundwater, a court shall avoid an undesirable result as defined in Section 10721 of the Water Code.
This bill would provide that an action to determine water rights shall be deemed provisionally complex within the meaning provided in Rule 3.400 of Title 3 of the California Rules of Court.
This bill would state that Section 389 of the Code of Civil Procedure (dismissal for failure to join an indispensable party) shall not apply to any failure to join an Indian tribe or the United States to an action or proceeding.
This bill would state that upon timely motion, a court shall permit the Department of Water Resources or the Department of Fish and Wildlife, or both, to intervene in an action or proceeding if the movant claims an interest relating to the action or proceeding and is so situated that disposing of the action or proceeding may, as a practical matter, impair or impede the movant’s ability to protect its interest.
This bill provides that in addition to other requirements for the service of a summons by publication, the publication shall describe the groundwater basin that is the subject of the action, and shall provide the Internet address for a map depicting the basin and any other identifying information that the court deems appropriate.
This bill would state, except as otherwise stipulated or ordered by the court, a party shall, without awaiting a discovery request, provide to the other parties all of the following:
the name and, if known, the address and telephone number of each individual likely to have discoverable information, along with the subjects of that information, who the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
a copy or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control that it may use to support its claims or defenses, unless the use would be solely for impeachment; and
a quantification of claims to water in the basin by the disclosing party, and access to any documents or other evidentiary material, unless privileged or protected from disclosure, on which each claim is based, including materials bearing on the nature and extent of those claims.
This bill would provide that a party shall make all required disclosures at or within 14 days after the parties’ initial case management conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in a proposed discovery plan. This bill states that in ruling on the objection, the court shall determine what disclosures, if any, are to be made and shall set the time for disclosure.
This bill would provide that a party that is first served or otherwise joined after the initial case management conference shall make its initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.
This bill would provide that a party shall make its initial disclosures based on the information then reasonably available to it, and that a party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.
This bill would state that in addition to the other required disclosures, a party shall disclose to the other parties the identity of any expert witness it may use at trial to present evidence.
This bill would provide that, unless otherwise stipulated or ordered by the court, the disclosures pertaining to expert witnesses shall be accompanied by a written report, prepared and signed by the expert witness, if the expert witness is retained or specially employed to provide expert testimony in the case or whose duties as the party’s employee regularly involve giving expert testimony. This bill would specify that the report shall contain all of the following:
a complete statement of all opinions the expert witness will express and the basis and reasons for them;
the facts or data considered by the expert witness in forming his or her opinions;
any exhibits that will be used to summarize or support the opinions of the expert witness;
the expert witness’ qualifications, including a list of all publications authored in the previous 10 years;
a list of all other cases in which, during the previous four years, the expert witness testified as an expert at trial or by deposition; and
a statement of the compensation to be paid to the expert witness for the study and testimony in the case.
This bill would also provide that, unless otherwise stipulated or ordered by the court, if the expert witness is not required to provide a written report, the disclosure shall state both of the following:
the subject matter on which the expert witness is expected to present evidence; and
a summary of the facts and opinions to which the expert witness is expected to testify.
This bill would state that a party shall make the required disclosures at the times and in the sequence that the court orders, and that absent a stipulation or a court order, the disclosures shall be made at either of the following times:
at least 90 days before the date set for trial or for the case to be ready for trial; or
if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party, within 30 days after the other party’s disclosure.
COMMENT
Stated need for the bill
According to the author:
In California, the method for determining groundwater rights is through the common law process of groundwater adjudication. 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 . . .
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. SB 226 addresses these issues as follows:
Basin Boundaries – boundaries shall be as identified in [Department of Water Resources’] Bulletin 118, unless modified as provided in [Sustainable Groundwater Management Act].
Notice & Service – notice to known parties is as provided in the Code of Civil Procedure (CCP). Unknown parties would be served by publication.
Discovery – Copies the Federal procedures, which require disclosure of specific items without awaiting a discovery request.
Expert Witness – Copies the Federal procedures, which require an expert witness to provide a written report on opinions the witness will express and the basis and reasons for them.
With these changes, SB 226 will reduce needless delays while still protecting due process rights.
Special Procedures to Accelerate Adjudications
This bill would establish special procedural rules under the Sustainable Groundwater Management Act (SGMA) for determining rights to groundwater in an effort to accelerate groundwater adjudication proceedings. Drawn from the Federal Rules of Civil Procedure, this bill would set new requirements for making initial disclosures of discoverable evidence and for disclosing information about a party’s expert witnesses, for allowing the Department of Water Resources and the Department of Fish and Wildlife to intervene in groundwater adjudications, and for serving both known and unknown parties. This bill would also set specific standards by which groundwater cases shall be adjudicated.
Non-joinder of Parties
This bill would provide that Section 389 of the Code of Civil Procedure shall not apply to any failure to join an Indian tribe or the United States to a groundwater adjudication under SGMA. Section 389 provides that a person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If such a person cannot be made a party, Section 389 empowers the court to dismiss the action if it determines the non-joined party is indispensable to resolution of the matter. In California, groundwater basins are shared by a multitude of people and entities, including federally recognized Indian tribes and instrumentalities of the United States. Since these entities might have a claim or interest in a groundwater basin, and since California may, in some instances, be unable to compel them to become a party in a groundwater adjudication, this provision of the bill ensures that the non-joinder of those parties would not result in the dismissal of the adjudication.
Intervention
This bill provides that the Department of Water Resources and the Department of Fish and Wildlife shall have intervention by right into a groundwater adjudication under SGMA if they claim an interest in the proceeding and that the proceeding may, as a practical matter, impair or impede their ability to protect that interest. As managers of natural resources dependent on groundwater and interconnected surface water, the adjudication of groundwater basins may impact the interests of these Departments.
Several agricultural stakeholders writing in opposition state that this provision “would fundamentally change water rights in California.” They state:
Under current law, groundwater rights are an overlying right, an appropriative right or a prescriptive right. By allowing the above referenced agencies to intervene in an adjudication action, the court would be forced to examine the impairment of the agency’s claimed interest and potentially grant the agency a groundwater right not otherwise entitled to under established law.
Staff notes that merely allowing these Departments to join as parties to an adjudication would not lead to the recognition of a groundwater right. Just like any other party, these Departments would have to establish their claim to groundwater in the basin under applicable law. Further, it would be premature to conclude as a matter of law that these Departments could not claim a right to groundwater in basins undergoing adjudication, particularly in light of recent court decisions recognizing that certain quantities of groundwater may be subject to the public trust doctrine. (See Environmental Law Foundation et al. v. State Water Resources Control Board, 34-2010-800000583 (Sacramento Superior Court).)
Notice and Service
This bill would provide that publication to unknown defendants -- those who may have a claim to groundwater extraction in a basin -- shall be served by publication, and that the publication shall describe the groundwater basin that is the subject of the action, and shall provide the Internet address for a map depicting the basin and any other identifying information that the court deems appropriate. Under existing law, a summons is generally served to defendants in an action by personal delivery of a copy of the summons and of the complaint to the person to be served. (Code Civ. Proc. Sec. 415.10.) If a court determines that a party to be served cannot with reasonable diligence be served by personal service or in another manner specified in the Code of Civil Procedure, then it may order service by publication. (Code Civ. Proc. Sec. 415.10.) This method of service is useful for giving unknown parties notice of a proceeding which they may have an interest in. Service by publication is generally accomplished by publishing a summons in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served. This bill would enhance the notice given to unknown defendants served by publication by requiring additional information about the groundwater basin undergoing adjudication, thereby better enabling readers of the publication to determine if they have an interest in the adjudication.
Discovery and Expert Witnesses
This bill would also require all parties to disclose through discovery specific limited information about their claims and defenses in a groundwater adjudication, as well as information about expert witnesses that will provide testimony on their behalf, without waiting for a discovery order from the court. As noted in the Background above, the discovery process in groundwater adjudications leads to significant delays as parties wait for each other to submit information about their claimed rights to groundwater. The process required by this bill, drawn from Rule 26 of the Federal Rules of Civil Procedure, would require all parties to provide basic information about their claimed interest in the adjudication and about the expert witnesses they plan to have testify on their behalf very early in the proceedings. The provision of this information at the beginning stages of an adjudication will allow the court and the parties to more quickly frame the issues to be addressed, and should reduce delays associated with parties strategically waiting to produce discoverable evidence.
Avoiding Undesirable Results
In addition to the procedural changes noted in Comment 2, this bill would specify that in making its determination of rights to groundwater, a court shall avoid an undesirable result as defined in SGMA. In general, an undesirable result under SGMA is one that results in any of the following: the chronic lowering of groundwater levels; significant and unreasonable reduction of groundwater storage; significant and unreasonable seawater intrusion; significant and unreasonable degraded water quality; significant and unreasonable land subsidence that substantially interferes with surface land uses; or depletions of interconnected surface water that have significant and unreasonable adverse impacts on beneficial uses of surface water. (Wat. Code Sec. 10721(w).)
This adjudicatory standard differs somewhat from that used in common law groundwater adjudications. In a common law adjudication, groundwater basins are managed according to the concept of “safe yield,” and overlying appropriators are limited when total basin groundwater extraction exceeds safe yield, leading to basin overdraft. The safe yield of a groundwater basin is “the maximum amount of water that could be extracted annually, year after year, without eventually depleting the underground basin. Safe yield is generally calculated as the net of inflows less subsurface and surface outflows.” (City of Santa Maria v. Adam (Cal.App.6th Dist. 2012), 211 Cal.App.4th 266, 279.)
The author states that this bill’s focus on “sustainable yield” is to ensure that any decision rendered through the procedures established through the bill would be consistent with the goals and objectives of SGMA, which include providing for the sustainable management of groundwater basins. (Wat. Code Sec. 10720.1(a).)
Impact to Common Law Adjudication
The California Supreme Court has held that “[i]t is settled that the law of this state includes the common law as well as the Constitution and the codes. The code establishes the law of this state respecting the subjects to which it relates; but this does not mean that there is no law with respect to such subjects except that embodied in the code. Where the code is silent, the common law governs.” Rojo v. Kliger (1990) 52 Cal.3d 65, 74 (citations and internal quotation marks omitted).) Further, “[t]here is a presumption a statute does not, by implication, repeal the common law.” (Id., citing 3 Sutherland, Statutory Construction (4th ed. 1986) Sec. 61.03, p. 95 [“The repeal of a common law rule may be evidenced by various other . . . aids of statutory interpretation.”].)
Through this bill, the author intends to establish a process to adjudicate groundwater rights under SGMA that operates parallel to California’s existing common law groundwater adjudication process. To ensure that this bill does not preclude parties from using the existing common law adjudication process, the author offers the following amendment:
Author’s Amendment:
On page 8, between lines 23 and 24, insert “(c) Nothing contained in this chapter shall be deemed to repeal or preclude an action to determine rights to groundwater in accordance with the common law.”
Other Stakeholder Concerns
Clean Water Action and Community Water Center state, “we appreciate the need to streamline the adjudication process and are encouraged by the bill so far. However, it is imperative that the rights of underrepresented and disadvantaged communities . . . are adequately represented in the process.” To better represent these communities and enhance their ability to participate in adjudications under this bill, these stakeholders suggest that the bill be amended to allow for the awarding of attorney’s fees and costs to those beneficial users who can prove significant financial hardship; to require notices related to an adjudication to be translated in any and all languages spoken by 10 percent or more of the population residing in a basin, as well as any other languages as appropriate; and to expand the bill’s intervention by right provision to authorize intervention by the State Water Board and local groundwater sustainability agencies.
Support: Clean Water Action; Community Water Center; Sierra Club California
Opposition: African American Farmers of California; 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 Tomato Growers Association; National Hmong American Farmers; Nisei Farmers League; Western Agricultural Processors Association; Western Plant Health Association
HISTORY
Source: Author
Related Pending Legislation: AB 1390 (Alejo, 2015) would establish special procedures for adjudication actions filed in superior court to determine the rights to extract groundwater within a basin or store water from a basin. Among other things, this bill would require each party to make specified initial disclosures within 60 days after an initial case management conference, and would authorize the court to appoint a special master whose duties could include initiating a technical committee to conduct joint factfinding regarding the basin. This bill is pending in the Assembly Judiciary Committee.
Prior Legislation: None Known
Prior Vote: Senate Natural Resources and Water Committee (Ayes 6, Noes 2)
**************
SB 226 (Pavley) Page 4 of 4
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: SB 226 Hearing Date: April 14, 2015
Author: |
Pavley |
|
|
Version: |
April 6, 2015 |
||
Urgency: |
No |
Fiscal: |
Yes |
Consultant: |
Dennis O'Connor |
||
Subject: Sustainable Groundwater Management Act: groundwater rights
BACKGROUND AND EXISTING LAW
Last session the Legislature enacted the Sustainable Groundwater Management Act (SGMA). Among other things, 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 law suit. 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.
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, this 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.
PROPOSED LAW
This bill would add a new Chapter 12 to SGMA titled Determination of Rights to Groundwater. Specifically, this bill would:
Find and declare that it establishes a timely and comprehensive method for determining rights to groundwater.
Provide 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.
Require the process for determining rights to groundwater to be available to any court of competent jurisdiction.
Deem 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.
Direct a court, in making its determination of rights to groundwater, to avoid undesirable results as defined in SGMA
Provide that it applies to Indian tribes and the federal government to the extent authorized by federal and tribal law.
Require the boundaries of a basin to be as identified in Bulletin 118, unless other basin boundaries are established pursuant to SGMA.
Authorize the Department of Water Resources and the Department of Fish and Wildlife to intervene in an action or proceeding if they claim an interest relating to the action or proceeding.
Specify service and notice procedures.
Require a party to provide specified initial disclosures to the other parties, including, among other disclosures, information relating to expert witnesses.
The bill would also make other conforming and technical changes to the Water Code.
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 tackles head on the various time sinks witnesses identified at this committee’s hearing last November on groundwater adjudication. SB 226 addresses these issues as follows:
Basin Boundaries – boundaries shall be as identified in DWR’s Bulletin 118, unless modified as provided in SGMA.
Notice & Service – notice to known parties is as provided in the Code of Civil Procedures (CCP). Unknown parties would be served by publication.
Discovery – follows the Federal procedures, which require disclosure of specific items without awaiting a discovery request.
Expert Witness – follows the Federal procedures, which require an expert witness to provide a written report on opinions the witness will express and the basis and reasons for them.”
“With these changes, SB 226 will reduce needless delays while still protecting due process rights.”
ARGUMENTS IN OPPOSITION
The California Farm Bureau Federation writes, “When Governor Brown signed the Sustainable Groundwater Management Act (SGMA) bill package last year, interest in improving the groundwater adjudication process was expressed by the Administration and authors of the bill package. The Farm Bureau has worked with many others since the SGMA was signed into law and has introduced a comprehensive bill (AB 1390 – Alejo) to address the issues 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. These changes will reduce the burden of groundwater adjudications on both the courts and claimants without altering the law of groundwater rights without disruption the Sustainable Groundwater Management Act planning process. While we appreciate [Senator Pavley’s] interest in the issue of adjudication we respectfully prefer the approach offered in AB 1390.”
“SB 226 makes changes to the SGMA that already includes significant groundwater reforms which focuses on improving the sustainability and reliability of California’s groundwater basins. We believe that the SGMA should be given time to be implemented and that it is premature to make significant policy changes to the Act at this time.”
COMMENTS
Everyone Agrees The Current Process Needs Improvement. At this committee’s 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.”
There Is A Question Of Where To Put The Improvements. This bill proposes to put the changes to the groundwater adjudication process in SGMA to ensure that any future adjudication is done so “in furtherance of the objectives” of SGMA. The Farm Bureau prefers to put such changes in the Code of Civil Procedure instead. This is an issue that perhaps is better addressed by the Judiciary Committee.
There Is A Question Of How The System Should Be Improved. There seems to be broad agreement on what things slow down the adjudication process. These include things like determining basin boundaries, notice and service of affected parties, discovery, relitigation of previous determinations of fact or law, identification of and testimony of expert witnesses, and challenging judges for alleged bias. There is less agreement on which aspects of the adjudication can be addressed and how they can be addressed without compromising due process considerations. This too is an issue that perhaps is better addressed by the Judiciary Committee.
Protection Of Environment. At the November 2014 hearing, in response to a question regarding whether it would be helpful to clarify in the law how to address, for example, areas where there is a very clear surface-groundwater interaction, Justice Robie observed that groundwater adjudications are “a common law proceeding and common law doesn’t provide for protection of ecosystems. In other words, when you have a groundwater adjudication, protection of ecosystems or environmental factors of that type are not currently covered in what you normally raise in an adjudication … subsidence and things like that, they haven’t dealt with …but you get to that frequently in practical matter through CEQA where mitigation is required, but an adjudication of course is not subject to CEQA, so I think you pointed to something that could be added to it. In an adjudication, you only have the right holders present. There’s no place for intervention by public interest groups or anybody else that I’m aware of.”
This bill would authorize the Department of Water Resources and the Department of Fish and Wildlife to intervene in an action or proceeding if they claim an interest relating to the action or proceeding.
Double-Referral. The Rules Committee referred this bill to both the Committee on Natural Resources and Water and to the Committee on Judiciary. Therefore, if this bill passes this committee, it will be referred to the Committee on Judiciary, which will consider the issues within their jurisdiction.
SUGGESTED AMENDMENTS: None
SUPPORT
Sierra Club California
OPPOSITION
California Farm Bureau Federation
-- END --
Discussed in Hearing
2MIN
Senate Floor
1MIN
Assembly Floor
1MIN
Assembly Floor
4MIN
Assembly Standing Committee on Appropriations
13MIN
Assembly Standing Committee on Judiciary
7MIN
Senate Floor
12MIN
Senate Standing Committee on Natural Resources and Water
Bill Author
Bill Co-Author(s):
