(1)Existing law establishes various methods and procedures for a comprehensive adjudication of groundwater rights in civil court.

This bill would require the court, in an adjudication action for a basin required to have a groundwater sustainability plan, to appoint one party to forward all case management orders, judgments, and interlocutory orders to the groundwater sustainability agency within 10 business days of issuance. The bill would require the court to allocate payment of the costs incurred by the party appointed to forward all case management orders, judgments, and interlocutory orders to the groundwater sustainability agency among the parties in an amount and a manner that the court deems equitable. The bill would require the groundwater sustainability agency to post the documents on its internet website in the interest of transparency and accessibility within 20 business days of receipt from a party, as specified. The bill would authorize the court to refer the matter to the State Water Resources Control Board for investigation and report in order to assist the court in making findings pursuant to these provisions, and would authorize a party to request that the court refer the matter to the board for these purposes, as specified. The bill would require the court to consider the water use of and accessibility of water for small farmers and disadvantaged communities, as those terms are defined, before entering a judgment.

(2)Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans, except as specified. Existing law authorizes any local agency or combination of local agencies overlying a groundwater basin to decide to become a groundwater sustainability agency for that basin and imposes specified duties upon that agency or combination of agencies, as provided. Existing law requires, among other duties, a groundwater sustainability agency to evaluate its groundwater sustainability plan periodically. Existing law requires a groundwater sustainability agency, on the April 1 following the adoption of a groundwater sustainability plan and annually thereafter, to report specified information about the groundwater basin to the department.

This bill would require a groundwater sustainability agency to submit copies of those reports to the court during the duration of an adjudication proceeding. The bill would require all monitoring and reporting required under a groundwater sustainability plan or an interim plan for a basin subject to an adjudication to continue throughout the duration of the adjudication proceeding.

The bill would require a groundwater sustainability agency, upon receiving notice that an adjudication has commenced in its basin, to host a public meeting to explain the adjudication process and the status of the adjudication to water users within the basin and the public. The bill would require a recording or summary of the meeting to be posted to a public internet website hosted by either the groundwater sustainability agency or the watermaster of the basin. The bill would authorize a groundwater sustainability agency to invite the state board or the department to send a representative to the meeting in order to help explain the adjudication process. The bill would apply these provisions only to basins in which a comprehensive adjudication has not been commenced by January 1, 2024.

(1)Existing law establishes various methods and procedures for a comprehensive adjudication of groundwater rights in civil court.

This bill would require the court, in an adjudication action for a basin required to have a groundwater sustainability plan, to appoint one party to forward all case management orders, judgments, and interlocutory orders to the groundwater sustainability agency within 10 business days of issuance. The bill would require the court to allocate payment of the costs incurred by the party appointed to forward all case management orders, judgments, and interlocutory orders to the groundwater sustainability agency among the parties in an amount and a manner that the court deems equitable. The bill would require the groundwater sustainability agency to post the documents on its internet website in the interest of transparency and accessibility within 20 business days of receipt from a party, as specified. The bill would authorize the court to refer the matter to the State Water Resources Control Board for investigation and report in order to assist the court in making findings pursuant to these provisions, and would authorize a party to request that the court refer the matter to the board for these purposes, as specified. The bill would require the court to consider the water use of and accessibility of water for small farmers and disadvantaged communities, as those terms are defined, before entering a judgment.

(2)Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans, except as specified. Existing law authorizes any local agency or combination of local agencies overlying a groundwater basin to decide to become a groundwater sustainability agency for that basin and imposes specified duties upon that agency or combination of agencies, as provided. Existing law requires, among other duties, a groundwater sustainability agency to evaluate its groundwater sustainability plan periodically. Existing law requires a groundwater sustainability agency, on the April 1 following the adoption of a groundwater sustainability plan and annually thereafter, to report specified information about the groundwater basin to the department.

This bill would require a groundwater sustainability agency to submit copies of those reports to the court during the duration of an adjudication proceeding. The bill would require all monitoring and reporting required under a groundwater sustainability plan or an interim plan for a basin subject to an adjudication to continue throughout the duration of the adjudication proceeding.

The bill would require a groundwater sustainability agency, upon receiving notice that an adjudication has commenced in its basin, to host a public meeting to explain the adjudication process and the status of the adjudication to water users within the basin and the public. The bill would require a recording or summary of the meeting to be posted to a public internet website hosted by either the groundwater sustainability agency or the watermaster of the basin. The bill would authorize a groundwater sustainability agency to invite the state board or the department to send a representative to the meeting in order to help explain the adjudication process. The bill would apply these provisions only to basins in which a comprehensive adjudication has not been commenced by January 1, 2024.

(1)Existing law establishes various methods and procedures for a comprehensive adjudication of groundwater rights in civil court.

This bill would require the court court, in an adjudication action for a basin required to have a groundwater sustainability plan, to appoint one party to forward all case management orders, judgments, and interlocutory orders to the Department of Water Resources groundwater sustainability agency within 10 business days of issuance. The bill would require the court to allocate payment of the costs incurred by the party appointed to forward all case management orders, judgments, and interlocutory orders to the department groundwater sustainability agency among the parties in an amount and a manner that the court deems equitable. The bill would require the department groundwater sustainability agency to post the documents on its internet website in the interest of transparency and accessibility within 20 business days of receipt from a party, as specified. The bill would authorize the court to refer the matter to the State Water Resources Control Board for investigation and report in order to assist the court in making findings pursuant to these provisions, and would authorize a party to request that the court refer the matter to the board for these purposes. purposes, as specified. The bill would require the court to consider the water use of and accessibility of water for small farmers and disadvantaged communities, as those terms are defined, before entering a judgment.

(2)Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans, except as specified. Existing law authorizes any local agency or combination of local agencies overlying a groundwater basin to decide to become a groundwater sustainability agency for that basin and imposes specified duties upon that agency or combination of agencies, as provided. Existing law requires, among other duties, a groundwater sustainability agency to evaluate its groundwater sustainability plan periodically. Existing law requires a groundwater sustainability agency, on the April 1 following the adoption of a groundwater sustainability plan and annually thereafter, to report specified information about the groundwater basin to the department.

This bill would require a groundwater sustainability agency to submit copies of those reports to the court during the duration of an adjudication proceeding. The bill would require all monitoring and reporting required under a groundwater sustainability plan or an interim plan for a basin subject to an adjudication to continue throughout the duration of the adjudication proceeding.

The bill would require a groundwater sustainability agency, upon receiving notice that an adjudication has commenced in its basin, to invite the department to present an information update at host a public meeting to explain the adjudication process and the status of the adjudication to water users within the basin and the public. The bill would require a recording or summary of the presentation meeting to be posted to a public internet website hosted by either the groundwater sustainability agency or the watermaster. watermaster of the basin. The bill would authorize a groundwater sustainability agency to invite the state board or the department to send a representative to the meeting in order to help explain the adjudication process. The bill would apply these provisions only to basins in which a comprehensive adjudication has not been commenced by January 1, 2024.

(1)Existing law establishes various methods and procedures for a comprehensive adjudication of groundwater rights in civil court.

This bill would require the court to appoint one party to forward all case management orders, judgments, and interlocutory orders to the Department of Water Resources within 10 business days of issuance. The bill would require the court to allocate payment of the costs incurred by the party appointed to forward all case management orders, judgments, and interlocutory orders to the department among the parties in an amount and a manner that the court deems equitable. The bill would require the department to post the documents on its internet website in the interest of transparency and accessibility within 20 business days of receipt from a party, as specified. The bill would authorize the court to refer the matter to the State Water Resources Control Board for investigation and report in order to assist the court in making findings pursuant to these provisions, and would authorize a party to request that the court refer the matter to the board for these purposes. The bill would require the court to consider the water use of small farmers and disadvantaged communities, as those terms are defined, before entering a judgment.

(2)Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans, except as specified. Existing law authorizes any local agency or combination of local agencies overlying a groundwater basin to decide to become a groundwater sustainability agency for that basin and imposes specified duties upon that agency or combination of agencies, as provided. Existing law requires, among other duties, a groundwater sustainability agency to evaluate its groundwater sustainability plan periodically. Existing law requires a groundwater sustainability agency, on the April 1 following the adoption of a groundwater sustainability plan and annually thereafter, to report specified information about the groundwater basin to the department.

This bill would require a groundwater sustainability agency to submit copies of those reports to the court during the duration of an adjudication proceeding. The bill would require all monitoring and reporting required under a groundwater sustainability plan or an interim plan for a basin subject to an adjudication to continue throughout the duration of the adjudication proceeding.

The bill would require a groundwater sustainability agency, upon receiving notice that an adjudication has commenced in its basin, to invite the department to present an information update at a public meeting to explain the adjudication process and the status of the adjudication to water users within the basin and the public. The bill would require a recording or summary of the presentation to be posted to a public internet website hosted by either the groundwater sustainability agency or the watermaster. The bill would authorize a groundwater sustainability agency to invite the state board or the department to send a representative to the meeting in order to help explain the adjudication process. The bill would apply these provisions only to basins in which a comprehensive adjudication has not been commenced by January 1, 2024.

(1)Existing law establishes various methods and procedures for a comprehensive adjudication of groundwater rights in civil court.

This bill would require the court to appoint one party to forward all case management orders, judgments, and interlocutory orders to the Department of Water Resources within 10 business days of issuance. The bill would require the court to allocate payment of the costs incurred by the party appointed to forward all case management orders, judgments, and interlocutory orders to the department among the parties in an amount and a manner that the court deems equitable. The bill would require the department to post the documents on its internet website in the interest of transparency and accessibility within 20 business days of receipt from a party, as specified. The bill would encourage the court to invite a representative from the department or the State Water Resources Control Board to a hearing where they may provide technical assistance or expert testimony on equitable and sustainable pumping allocations for the basin, sustainable groundwater management best practices and recommendations, and the water use of small farmers and disadvantaged communities and potential impacts on their needs. authorize the court to refer the matter to the State Water Resources Control Board for investigation and report in order to assist the court in making findings pursuant to these provisions, and would authorize a party to request that the court refer the matter to the board for these purposes. The bill would require the court to consider the water use of small farmers and disadvantaged communities, as those terms are defined, before entering a judgment.

(2)Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans, except as specified. Existing law authorizes any local agency or combination of local agencies overlying a groundwater basin to decide to become a groundwater sustainability agency for that basin and imposes specified duties upon that agency or combination of agencies, as provided. Existing law requires, among other duties, a groundwater sustainability agency to evaluate its groundwater sustainability plan periodically. Existing law requires a groundwater sustainability agency, on the April 1 following the adoption of a groundwater sustainability plan and annually thereafter, to report specified information about the groundwater basin to the department.

This bill would require a groundwater sustainability agency to submit copies of those reports to the court during the duration of an adjudication proceeding. The bill would require all monitoring and reporting required under a groundwater sustainability plan or an interim plan for a basin subject to an adjudication to continue throughout the duration of the adjudication proceeding.

The bill would require a groundwater sustainability agency, upon receiving notice that an adjudication has commenced in its basin, to invite the department to present an information update at a public meeting to explain the adjudication process and the status of the adjudication to water users within the basin and the public. The bill would require a recording or summary of the presentation to be posted to a public internet website hosted by either the groundwater sustainability agency or the watermaster. The bill would authorize a groundwater sustainability agency to invite the state board or the department to send a representative to the meeting in order to help explain the adjudication process. The bill would apply these provisions only to basins in which a comprehensive adjudication has not been commenced by January 1, 2024.

(1)Existing law establishes various methods and procedures for a comprehensive adjudication of groundwater rights in civil court.

This bill would require the court to appoint one party to forward all case management orders, judgments, and interlocutory orders to the Department of Water Resources within 10 business days of issuance. The bill would require the court to allocate payment of the costs incurred by the party appointed to forward all case management orders, judgments, and interlocutory orders to the department among the parties in an amount and a manner that the court deems equitable. The bill would require the department to post the documents on its internet website in the interest of transparency and accessibility within 20 business days of receipt from a party, as specified. The bill would encourage the court to invite a representative from the department or the State Water Resources Control Board to a hearing where they may provide technical assistance or expert testimony on equitable and sustainable pumping allocations for the basin, sustainable groundwater management best practices and recommendations, and the water use of small farmers and disadvantaged communities and potential impacts on their needs. The bill would require the court to consider the water use of small farmers and disadvantaged communities, as those terms are defined, before entering a judgment. The bill would apply these provisions only to basins in which a comprehensive adjudication has not been commenced by January 1, 2024.

(2)Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans, except as specified. Existing law authorizes any local agency or combination of local agencies overlying a groundwater basin to decide to become a groundwater sustainability agency for that basin and imposes specified duties upon that agency or combination of agencies, as provided. Existing law requires, among other duties, a groundwater sustainability agency to evaluate its groundwater sustainability plan periodically. Existing law requires a groundwater sustainability agency, on the April 1 following the adoption of a groundwater sustainability plan and annually thereafter, to report specified information about the groundwater basin to the department.

This bill would require a groundwater sustainability agency to submit copies of those reports to the court during the duration of an adjudication proceeding. The bill would require all monitoring and reporting required under a groundwater sustainability plan or an interim plan for a basin subject to an adjudication to continue throughout the duration of the adjudication proceeding. The

The bill would require a groundwater sustainability agency, upon receiving notice that an adjudication has commenced in its basin, to arrange for invite the department to present an information update at a public meeting to explain the adjudication process and the status of the adjudication to water users within the basin and the public. The bill would require a recording or summary of the presentation to be posted to a public internet website hosted by either the groundwater sustainability agency or the watermaster. The bill would authorize a groundwater sustainability agency to invite the state board or the department to send a representative to the meeting in order to help explain the adjudication process. The bill would apply these provisions only to basins in which a comprehensive adjudication has not been commenced by January 1, 2024.

(1)Existing law establishes various methods and procedures for a comprehensive adjudication of groundwater rights in civil court.

This bill would require the court to appoint one party to forward all case management orders, judgments, and interlocutory orders to the Department of Water Resources within 10 business days of issuance. The bill would require the department to post the documents on its internet website in the interest of transparency and accessibility within 20 business days of receipt from a party, as specified. The bill would encourage the court to invite a representative from the department or the State Water Resources Control Board to a hearing where they may provide technical assistance or expert testimony on equitable and sustainable pumping allocations for the basin, sustainable groundwater management best practices and recommendations, and the water use of small farmers and disadvantaged communities and potential impacts on their needs. The bill would require the court to consider the water use of small farmers and disadvantaged communities, as those terms are defined, before entering a judgment. The bill would apply these provisions only to basins in which a comprehensive adjudication has not been commenced by January 1, 2024.

(2)Existing law, the Sustainable Groundwater Management Act, requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources to be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans, except as specified. Existing law authorizes any local agency or combination of local agencies overlying a groundwater basin to decide to become a groundwater sustainability agency for that basin and imposes specified duties upon that agency or combination of agencies, as provided. Existing law requires, among other duties, a groundwater sustainability agency to evaluate its groundwater sustainability plan periodically. Existing law requires a groundwater sustainability agency, on the April 1 following the adoption of a groundwater sustainability plan and annually thereafter, to report specified information about the groundwater basin to the department.

This bill would require a groundwater sustainability agency to submit copies of those reports to the court during the duration of an adjudication proceeding. The bill would require all monitoring and reporting required under a groundwater sustainability plan or an interim plan for a basin subject to an adjudication to continue throughout the duration of the adjudication proceeding. The bill would require a groundwater sustainability agency, upon receiving notice that an adjudication has commenced in its basin, to arrange for the department to present an information update at a public meeting to explain the adjudication process and the status of the adjudication to water users within the basin and the public. The bill would require a recording or summary of the presentation to be posted to a public internet website hosted by either the groundwater sustainability agency or the watermaster. The bill would authorize a groundwater sustainability agency to invite the state board or the department to send a representative to the meeting in order to help explain the adjudication process. The bill would apply these provisions only to basins in which a comprehensive adjudication has not been commenced by January 1, 2024.

(1)Existing law establishes various methods and procedures for a comprehensive adjudication of groundwater rights in civil court.

This bill would require the plaintiff and defendant involved in an adjudication to forward all relevant pleading and briefing materials to the Department of Water Resources after a decision has been rendered by the court. court to appoint one party to forward all case management orders, judgments, and interlocutory orders to the Department of Water Resources within 10 business days of issuance. The bill would require the department to post the documents on its internet website in the interest of transparency and accessibility, accessibility within 20 business days of receipt from a party, as specified. The bill would require encourage the court to invite a representative from the department or the State Water Resources Control Board to a hearing where they may provide technical assistance or expert testimony on the amount of water in the basin subject to adjudication, equitable and sustainable pumping allocations for the basin, and sustainable groundwater management best practices and recommendations. recommendations, and the water use of small farmers and disadvantaged communities and potential impacts on their needs. The bill would require the court to take into account consider the needs water use of small farmers and disadvantaged communities, as those terms are defined, when before entering a judgment. The bill would apply these provisions only to basins in which a comprehensive adjudication has not been commenced by January 1, 2024.

(2)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, plans, except as specified. Existing law authorizes any local agency or combination of local agencies overlying a groundwater basin to decide to become a groundwater sustainability agency for that basin and imposes specified duties upon that agency or combination of agencies, as provided. Existing law requires, among other duties, a groundwater sustainability agency to evaluate its groundwater sustainability plan periodically. Existing law requires a groundwater sustainability agency, on the April 1 following the adoption of a groundwater sustainability plan and annually thereafter, to report specified information about the groundwater basin to the department.

This bill would require a groundwater sustainability agency with jurisdiction over a basin subject to an adjudication proceeding to submit a comprehensive monitoring plan to the court, and to report monitoring data to the court and the department. The bill would prescribe pumping restrictions on groundwater users during an adjudication proceeding. to submit copies of those reports to the court during the duration of an adjudication proceeding. The bill would require all monitoring and reporting required under a groundwater sustainability plan or an interim plan for a basin subject to an adjudication to continue throughout the duration of the adjudication proceeding. The bill would require a groundwater sustainability agency to hold agency, upon receiving notice that an adjudication has commenced in its basin, to arrange for the department to present an information update at a public meeting to explain the adjudication process and the status of the adjudication to water users within its basin and the public upon receiving notice that an adjudication has commenced in its basin. the basin and the public. The bill would require a recording or summary of the presentation to be posted to a public internet website hosted by either the groundwater sustainability agency or the watermaster. The bill would authorize a groundwater sustainability agency to invite the state board or the department to send a representative to the meeting in order to help explain the adjudication process. The bill would apply these provisions only to basins in which a comprehensive adjudication has not been commenced by January 1, 2024.

(1)Existing law establishes various methods and procedures for a comprehensive adjudication of groundwater rights in civil court.

This bill would require the plaintiff and defendant involved in an adjudication to forward all relevant pleading and briefing materials to the Department of Water Resources after a decision has been rendered by the court. The bill would require the department to post the documents on its internet website in the interest of transparency and accessibility, as specified. The bill would require the court to invite a representative from the department or the State Water Resources Control Board to provide technical assistance or expert testimony on the amount of water in the basin subject to adjudication, equitable and sustainable pumping allocations for the basin, and sustainable groundwater management best practices and recommendations. The bill would require the court to take into account the needs of small farmers and disadvantaged communities, as those terms are defined, when entering a judgment.

(2)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 authorizes any local agency or combination of local agencies overlying a groundwater basin to decide to become a groundwater sustainability agency for that basin and imposes specified duties upon that agency or combination of agencies, as provided. Existing law requires, among other duties, a groundwater sustainability agency to evaluate its groundwater sustainability plan periodically.

This bill would require a groundwater sustainability agency with jurisdiction over a basin subject to an adjudication proceeding to submit a comprehensive monitoring plan to the court, and to report monitoring data to the court and the department. The bill would prescribe pumping restrictions on groundwater users during an adjudication proceeding. The bill would require a groundwater sustainability agency to hold a public meeting to explain the adjudication process to water users within its basin and the public upon receiving notice that an adjudication has commenced in its basin. The bill would authorize a groundwater sustainability agency to invite the state board or the department to send a representative to the meeting in order to help explain the adjudication process.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 779

Author:(Wilson)

As Amended Ver:September 8, 2023

Majority vote

SUMMARY

Makes various changes relating to the process for groundwater adjudication proceedings to increase transparency, including adding requirements that a court take into account the needs of disadvantaged communities and small farmers when entering a judgement and that groundwater pumpers in a basin subject to an adjudication continue to comply with any applicable groundwater sustainability plan.

Senate Amendments

1. Limit application of this bill to only adjudications in a groundwater basin subject to the Sustainable Groundwater Management Act (SGMA).
2. Strike a prohibition on increasing groundwater pumping above permissible levels while a groundwater adjudication is pending.
3. Strike a provision that would have limited the application of this bill to only those groundwater adjudications that commence after January 1, 2024.
4. Provide that all case management orders, judgments, and interlocutory orders in an adjudication shall be forward to the groundwater sustainability agency (GSA) rather than the Department of Water Resources (DWR).
5. Provide that the court shall allocate the costs of forwarding specified case documents to the GSA equitably amongst the parties to the adjudication.
6. Provide that the court may refer a question or physical fact in an adjudication to the State Water Resources Control Board (State Water Board) for investigation and report. Permits a party to request that the court refer a question or physical fact to the State Water Board for investigation and report.
7. Provide that the State Water Board and DWR shall jointly investigate and submit a report following a referral of a question or physical fact from the court to the State Water Board.
8. Strike a requirement that a GSA invite DWR to a present at the public meeting on the adjudication process after the commencement of an adjudication.
9. Make technical and conforming changes.

COMMENTS

Groundwater is a critical source of supply that meets more than 40% of water demand in an average year and more than 50% of demand during drought years. There are three types of groundwater rights: overlying, appropriative, and prescriptive. The most common of these is the overlying right that entitles "an owner of land overlying groundwater to drill a well and pump groundwater for use of that land, within the basin or watershed" (Littleworth and Garner, 2019). No permit is required to obtain overlying rights and these rights are typically not quantified. Due to this, any landowner may pump as much groundwater as they want so long as the water is put to beneficial use and the use is reasonable (Section 2, Article X of California Constitution). As a result of this lack of regulation, many groundwater basins in California are in a state of overdraft (a condition where average annual pumping exceeds average annual groundwater supply in a basin). To address overdraft and other adverse effects of excessive pumping, the Sustainable Groundwater Management Act (SGMA) put in place a statewide framework for groundwater management for the first time, but also stipulated that it did not alter surface or groundwater rights (Water Code Section 10720.5).

Prescription. In some cases a groundwater right may be obtained through "prescription," which is somewhat akin to "squatting" only on a water right rather than on real property. Prescription occurs when a person puts water that another has a right for to beneficial use for a period of five years. The use must be "open and notorious", adverse and hostile, and continuous and uninterrupted in order for a prescriptor to ultimately obtain a right to the water being used.

Adjudications. A groundwater adjudication is when parties ask a court to resolve conflicts over groundwater rights. An adjudication is initiated when one or more groundwater pumpers files a civil action asking the court to intervene to determine groundwater rights and/or limit pumping to a basin's "safe yield" (the amount of groundwater pumped that is equal to the average replenishment rate of a groundwater basin). According to the Water Education Foundation, "through adjudication, the courts can assign specific water rights to water users and can compel the cooperation of those who might otherwise refuse to limit their pumping of groundwater. Watermasters are typically appointed by the court to ensure that pumping conforms to the limits defined by the adjudication." Twenty-seven basins or sub-basins are adjudicated out of 515 groundwater basins identified by DWR in Bulletin 118. These are predominantly in urban and suburban parts of Southern California.

State law gives every overlying property owner a potential right in an unadjudicated groundwater basin. As such, determining who has groundwater rights that could be affected by an adjudication and the scope of those rights is difficult and can be a lengthy process; adjudications typically take more than a decade to resolve. Identifying and noticing every party that may have a right, completing technical work and sorting through disagreements over this technical work, and determining historic groundwater use that could affect the scope of one's rights are all factors that can contribute to increasing the time and expense of an adjudication. In an attempt to streamline the groundwater adjudication process, the Legislature passed SB 226 (Pavley), Chapter 676, Statutes of 2015, and AB 1390 (Alejo), Chapter 672, Statutes of 2015, in the wake of SGMA's passage. There are at least five pending groundwater adjudications:

1. Santa Clara Valley – Oxnard (No. 4-001.2) and Pleasant Valley (No. 4-006) groundwater basins, commenced in December 2022.
2. Cuyama Valley groundwater basin (No. 3-013), commenced in March 2022.
3. Indian Wells groundwater basin (No. 6-54), commenced in November 2021.
4. Upper Ventura River (No. 4-3.01), Ojai Valley (No. 4-2), Lower Ventura River (No. 4-3.02), and Upper Ojai Valley (No. 4-1) groundwater basins, commenced in November 2019.
5. Las Posas Valley groundwater basin (No. 4-8), commenced in November 2018.

An additional adjudication in the Borrego Valley groundwater subbasin (No. 7-024.1) commenced in July 2020; the court approved a stipulated judgment to settle this adjudication on April 8, 2021 and the case is no longer active.

According to the Author

"[This bill] is an effort to make the groundwater adjudication process more accessible, efficient, and transparent for all water users, especially small farmers, farmers of color, and historically marginalized groundwater users and to ensure the process produces an equitable and science-based allocation of water rights to support sustainable, long-term use by all water users in a basin."

Arguments in Support

The Community Alliance with Family Farmers (CAFF) supports this bill asserting that it will improve the adjudication process to make it more consistent with SGMA and increase access to an adjudication proceeding for small farmers and disadvantaged communities, which have not fared well in the adjudication process to date. CAFF points to examples in the Cuyama and Indian Wells basins where large growers initiated an adjudication because they did not agree with the direction the SGMA process was going. Finally, CAFF contends that "the idea of SGMA – that all stakeholders would be represented and their interests considered, and that there would be local community processes to achieve sustainability – will mean nothing if these overdrafted basins end up in court."

Arguments in Opposition

According to a coalition letter submitted by Indian Wells Valley Water District, Searles Valley Minerals, Inc., Sierra Shadows Ranch, Meadowbrook Dairy, and Mojave Pistachios, LLC., "[this bill] will impose onerous new procedures and tens of millions of dollars in new and unnecessary costs to comprehensively adjudicate groundwater basins, invite courts to shed their constitutional duties to investigate and impose physical solutions and determine the rights of the parties, while also expanding the role of [DWR] and [the State Water Board] into areas they currently do not function."

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. The State Water Board estimates ongoing costs of at least $450,000 (General Fund) for two positions to provide technical assistance and expert testimony during groundwater adjudication proceedings.
2. Costs of an unknown amount, ranging from minor and absorbable to hundreds of thousands of dollars, for DWR (General Fund). DWR's costs will ultimately depend on the number, length, and complexity of the adjudications during which it will need to provide technical assistance or expert testimony.

VOTES:

ASM WATER, PARKS, AND WILDLIFE: 11-3-1

YES: Bauer-Kahan, Bennett, Friedman, Hart, Wood, Pellerin, Blanca Rubio, Schiavo, Villapudua, Ward, Weber

NO: Alanis, Megan Dahle, Davies

ABS, ABST OR NV: Mathis

ASM JUDICIARY: 8-3-0

YES: Maienschein, Connolly, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas

NO: Essayli, Dixon, Sanchez

ASM APPROPRIATIONS: 11-3-2

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Weber, Ortega

NO: Megan Dahle, Dixon, Sanchez

ABS, ABST OR NV: Mathis, Robert Rivas

ASSEMBLY FLOOR: 59-17-4

YES: Addis, Aguiar-Curry, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Rendon

NO: Alanis, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Vince Fong, Gallagher, Hoover, Lackey, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron, Wallis

ABS, ABST OR NV: Bains, Grayson, Mathis, Zbur

UPDATED

VERSION: September 8, 2023

CONSULTANT: Pablo Garza / W., P., & W. / (916) 319-2096 FN: 0002369

 THIRD READING  

Bill No: AB 779

Author: Wilson (D)

Amended: 9/8/23 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 7-3, 6/27/23

AYES: Min, Allen, Eggman, Laird, Limón, Padilla, Stern

NOES: Seyarto, Dahle, Grove

NO VOTE RECORDED: Hurtado

SENATE JUDICIARY COMMITTEE: 8-3, 7/11/23

AYES: Umberg, Allen, Ashby, Durazo, Laird, Min, Stern, Wiener

NOES: Wilk, Caballero, Niello

SENATE APPROPRIATIONS COMMITTEE: 5-2, 9/1/23

AYES: Portantino, Ashby, Bradford, Wahab, Wiener

NOES: Jones, Seyarto

ASSEMBLY FLOOR: 59-17, 5/31/23 - See last page for vote

SUBJECT: Groundwater: adjudication

SOURCE: Author

DIGEST:

This bill enacts various changes to procedures governing comprehensive groundwater adjudications and the Sustainable Groundwater Management Act (SGMA) designed to address transparency regarding the adjudication process, ensure that the water use of small farmers and disadvantaged communities have been considered by a court before a judgment is entered, and specify that monitoring and reporting under an approved groundwater sustainability plan (GSP) continues throughout the duration of the adjudication proceeding, unless otherwise ordered by the court.

Senate Floor Amendments of 9/8/23 require certain court documents be forwarded to the Groundwater Sustainability Agency (GSA) for posting on its internet website, instead of the Department of Water Resources (DWR); requires the court to find that the judgement also considers the accessibility of water for small farmers and disadvantaged communities, in addition to the water use; and requires the State Water Resources Control Board (SWRCB) and DWR to jointly investigate whether a judgement meets certain criteria when the court refers to the matter to SWRCB.

ANALYSIS:

Existing law:

1. Enacts SGMA, which requires local agencies to sustainably manage groundwater in high- or medium-priority basins by 2040. Defines sustainable management of groundwater as the avoidance of the following six “undesirable results:” (a) chronic lowering of groundwater levels; (b) reduction of groundwater storage; (c) seawater intrusion; (d) degraded water quality; (e) land subsidence; and (f) depletions of interconnected surface water (Water Code (Wat. C.) § 10720 et seq.).
2. Requires local agencies in high- and medium-priority basins to form a GSA by June 30, 2017, unless statute designates an “exclusive local agency” for a given area. Provides that a county will be the default GSA for any area in a high- or medium- priority basin not managed by a GSA unless said county notifies DWR that it will not be the GSA for an uncovered portion of a high- or medium-priority basin (Wat. C. §§ 10723 – 10724).
3. Requires critically overdrafted groundwater basins to be managed under a GSP by January 31, 2020 and high- or medium-priority groundwater basins to be managed under a GSP by January 31, 2022 (Wat. C. § 10720.7).
4. Exempts 26 groundwater basins or sub-basins that are subject to existing adjudications from the requirements of SGMA; requires adjudicated areas to report groundwater elevation and other groundwater data to DWR annually (Wat. C. § 10720.8).
5. Outlines process and scope for a comprehensive adjudication of a groundwater basin (Code of Civil Procedure § 830 et seq.).
6. Permits a party or group of parties proposing a stipulated judgement under the comprehensive adjudication of a groundwater basin to also submit the proposal to DWR for evaluation and assessment as an alternative to a GSP (Wat. C. § 10737.4(b)).
7. Permits SWRCB to serve as a referee in a court case involving a water rights dispute upon the request of a state or federal court (Wat. C. § 2000 et seq.).

This bill:

1. Requires, in an adjudication action for a basin required to have a GSP, the court to appoint one party to forward all case management orders, judgments, and interlocutory orders to the GSA within 10 business days of issuance, not including any documents that have been sealed by the court. The GSA is required to post the documents on its internet website within 20 business days of receipt from a party. Requires the court to allocate payment of the costs incurred by the party appointed among the parties in an amount and a manner that the court deems equitable. Requires the GSAs, if a basin has multiple GSAs, in consultation with parties to the adjudication, to select which GSA will post the documents on its internet website.
2. Requires the court, in an adjudication action for a basin required to have a GSP, to manage the case to minimize interference with the timely completion and implementation of a GSP, avoid redundancy and unnecessary costs in the development of technical information and a physical solution, and be consistent with the attainment of sustainable groundwater management.
3. Requires the court, when entering judgment in a comprehensive adjudication, to find that the judgement considers the water use of and accessibility of water for small farmers and disadvantaged communities, as defined by the bill.
4. Requires the court to find that a judgement in a groundwater adjudication will not substantially impair the ability of a GSA, DWR, or SWRCB to achieve sustainable groundwater management.
5. Authorizes the court to refer the matter to SWRCB for investigation pursuant to existing law and requires SWRCB and DWR to jointly investigate the matter.
6. Requires all monitoring and reporting required by a GSP to continue throughout the duration of the adjudication proceedings. Requires a GSA and SWRCB to submit various reports to the court during the adjudication proceeding.
7. Requires a party to the adjudication, and any other person extracting water from the basin, to comply with the applicable GSP, except as may be authorized by the court.
8. Prohibits a party to the adjudication, or any other person extracting water from the basin, from using new or increased groundwater use to establish a new claim of prescription during an adjudication proceeding.
9. Requires a GSA, upon receiving notice that an adjudication has commenced in its basin, to host a public meeting to explain the adjudication process and the status of the adjudication to water users within the basin and the public.

Background

1. Groundwater 101 and the Sustainable Groundwater Management Act. Groundwater is a critical source of supply that meets more than 40 percent of water demand in an average year and more than 60 percent of demand during drought years. There are three types of groundwater rights: overlying, appropriative, and prescriptive. The most common of these is the overlying right that entitles “an owner of land overlying groundwater to drill a well and pump groundwater for use of that water, within the basin or watershed” (Littleworth and Garner, 2019). No permit is required to obtain overlying rights and these rights are typically not quantified. Due to this, any landowner may pump as much groundwater as they want so long as the water is put to beneficial use and the use is reasonable (Article X, Section 2 of the California Constitution). As a result of this lack of regulation, many groundwater basins in California are in a state of overdraft (a condition where average annual pumping exceeds average annual groundwater supply in a basin). To address overdraft and other adverse effects of excessive pumping, SGMA put in place a statewide framework for groundwater management for the first time, but also stipulated that it did not alter surface or groundwater rights (Water Code § 10720.5).
2. Prescription. In some cases, a groundwater right may be obtained through “prescription,” which is somewhat akin to “squatting” only on a water right rather than on real property. Prescription occurs when a person puts water that another has a right for to beneficial use for a period of five years. The use must be “open and notorious”, adverse and hostile, and continuous and uninterrupted in order for a prescriptor to ultimately obtain a right to the water being used.
3. Adjudications. A groundwater adjudication is when parties ask a court to resolve conflicts over groundwater rights. An adjudication is initiated when one or more groundwater pumpers files a civil action asking the court to intervene to determine groundwater rights and/or limit pumping to a basin’s “safe yield” (the amount of groundwater pumped that is equal to the average replenishment rate of a groundwater basin).

Groundwater adjudications can cover an entire basin, a portion of a basin, or a group of basins, and may include non-basin areas. Groundwater rights are defined for the overlying landowners and appropriators within the adjudicated area. The court decides who is allowed to extract groundwater, how much they are allowed to extract, and designates a watermaster who ensures the adjudicated areas are managed in accordance with the court ruling. According to Bulletin 118, as of 2020, there are 30 adjudicated areas, mostly in Southern California, that cover portions of 42 groundwater basins. Five of the 42 basins are covered with two or more adjudications.

According to the Water Education Foundation, “through adjudication, the courts can assign specific water rights to water users and can compel the cooperation of those who might otherwise refuse to limit their pumping of groundwater."

State law gives every overlying property owner a potential right in an unadjudicated groundwater basin. As such, determining who has groundwater rights that could be affected by an adjudication and the scope of those rights is difficult and can be a lengthy process; adjudications typically take more than a decade to resolve. Identifying and noticing every party that may have a right, completing technical work and sorting through disagreements over this technical work, and determining historic groundwater use which could affect the scope of one's rights are all factors that can contribute to increasing the time and expense of an adjudication.

In an attempt to streamline the groundwater adjudication process, the Legislature passed SB 226 (Pavley, Chapter 676, Statutes of 2015) and AB 1390 (Alejo, Chapter 672, Statutes of 2015), in the wake of SGMA’s passage. SB 226 requires the 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.

Comments

According to the author, “[t]his bill is an effort to make the groundwater adjudication process more accessible, efficient, and transparent for all water users, especially small farmers, farmers of color, and historically marginalized groundwater users and to ensure the process produces an equitable and science-based allocation of water rights to support sustainable, long-term use by all water users in a basin.”

Related/Prior Legislation

AB 560 (Bennett, 2023) requires parties to a groundwater management adjudication action to submit a proposed settlement agreement, before filing with the court, to SWRCB for a nonbinding advisory determination regarding its impact on sustainable groundwater management. AB 560 is being held in the Senate Appropriations Committee.

SB 1372 (Stern, Chapter 682, Statutes of 2022) provided that the approval of a GSP by DWR shall not be construed as a determination or opinion by DWR that the allocation of pumping rights in a GSP is consistent with groundwater rights law.

AB 2313 (Bloom, 2022) would have required the Judicial Council to establish a program to train judges in water law and would have expanded the utilization of special experts in complex cases involving water law. AB 2313 died in the Senate Appropriations Committee.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee,

• The State Water Resources Control Board (SWRCB) estimates ongoing costs of about $450,000 annually per adjudication that is referred to the SWRCB (Water Rights Fund). SWRCB notes these costs would be reimbursed by the parties to the adjudication through established procedures.
• The Department of Water Resources (DWR) anticipates that any costs would be minor and absorbable.

SUPPORT: (Verified 9/8/23)

California Climate and Agriculture Network

California Democratic Party

CivicWell

Community Alliance with Family Farmers

County of Santa Barbara

Indian Wells Valley Groundwater Authority

OPPOSITION: (Verified 9/8/23)

African American Farmers of California

Agricultural Council of California

Almond Alliance of California

American Pistachio Growers

California Apple Commission

California Association of Winegrape Growers

California Blueberry Association

California Blueberry Commission

California Fresh Fruit Association

California Walnut Commission

California Warehouse Association

Desert Water Agency

Elsinore Valley Municipal Water District

Indian Wells Valley Water District

Meadowbrook Dairy

Mojave Pistachios, LLC

Nisei Farmers League

Olive Growers Council of California

Searles Valley Minerals, Inc.

Sierra Shadows Ranch

United Ag

Valley Ag Water Coalition

Water Replenishment District of Southern California

Western Plant Health Association

ARGUMENTS IN SUPPORT: According to the Community Alliance with Family Farmers and California Climate and Agriculture Network, “The small farms and rural residents that our organizations represent are at such a disadvantage in the adjudication proceedings that it is unfortunate that this legal proceeding is an option to circumvent the SGMA process. … Unless the Legislature intervenes and limits the ability of the largest groundwater pumpers to circumvent the GSAs by going to court, we will see this scenario play out over and over. The idea of SGMA – that all stakeholders would be represented and their interests considered, and that there would be local community processes to achieve sustainability – will mean nothing if all these overdrafted basins end up in court. Reforming the adjudication process to be fairer and more related to the SGMA process might discourage a rash of adjudications.”

ARGUMENTS IN OPPOSITION: According to a coalition letter submitted by Indian Wells Valley Water District, Searles Valley Minerals, Inc., Sierra Shadows Ranch, Meadowbrook Dairy, and Mojave Pistachios, LLC., “AB 779 will impose onerous new procedures and tens of millions of dollars in new and unnecessary costs to comprehensively adjudicate groundwater basins, invite courts to shed their constitutional duties to investigate and impose physical solutions and determine the rights of the parties, while also expanding the role of [DWR] and [SWRCB] into areas they currently do not function.”

ASSEMBLY FLOOR: 59-17, 5/31/23

AYES: Addis, Aguiar-Curry, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Rendon

NOES: Alanis, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Vince Fong, Gallagher, Hoover, Lackey, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron, Wallis

NO VOTE RECORDED: Bains, Grayson, Mathis, Zbur

Prepared by: Genevieve Wong / N.R. & W. / (916) 651-4116

9/11/23 13:36:04

**** END ****

 THIRD READING  

Bill No: AB 779

Author: Wilson (D)

Amended: 8/14/23 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 7-3, 6/27/23

AYES: Min, Allen, Eggman, Laird, Limón, Padilla, Stern

NOES: Seyarto, Dahle, Grove

NO VOTE RECORDED: Hurtado

SENATE JUDICIARY COMMITTEE: 8-3, 7/11/23

AYES: Umberg, Allen, Ashby, Durazo, Laird, Min, Stern, Wiener

NOES: Wilk, Caballero, Niello

SENATE APPROPRIATIONS COMMITTEE: 5-2, 9/1/23

AYES: Portantino, Ashby, Bradford, Wahab, Wiener

NOES: Jones, Seyarto

ASSEMBLY FLOOR: 59-17, 5/31/23 - See last page for vote

SUBJECT: Groundwater: adjudication

SOURCE: Author

DIGEST:

This bill enacts various changes to procedures governing comprehensive groundwater adjudications and the Sustainable Groundwater Management Act (SGMA) designed to address transparency regarding the adjudication process, ensure that the water use of small farmers and disadvantaged communities have been considered by a court before a judgment is entered, and specify that monitoring and reporting under an approved groundwater sustainability plan (GSP) continues throughout the duration of the adjudication proceeding, unless otherwise ordered by the court.

ANALYSIS:

Existing law:

1. Enacts SGMA, which requires local agencies to sustainably manage groundwater in high- or medium-priority basins by 2040. Defines sustainable management of groundwater as the avoidance of the following six “undesirable results:” (a) chronic lowering of groundwater levels; (b) reduction of groundwater storage; (c) seawater intrusion; (d) degraded water quality; (e) land subsidence; and (f) depletions of interconnected surface water (Water Code (Wat. C.) § 10720 et seq.).
2. Requires local agencies in high- and medium-priority basins to form a groundwater sustainability agency (GSA) by June 30, 2017, unless statute designates an “exclusive local agency” for a given area. Provides that a county will be the default GSA for any area in a high- or medium- priority basin not managed by a GSA unless said county notifies the Department of Water Resources (DWR) that it will not be the GSA for an uncovered portion of a high- or medium-priority basin (Wat. C. §§ 10723 – 10724).
3. Requires critically overdrafted groundwater basins to be managed under a groundwater sustainability plan (GSP) by January 31, 2020 and high- or medium-priority groundwater basins to be managed under a GSP by January 31, 2022 (Wat. C. § 10720.7).
4. Exempts 26 groundwater basins or sub-basins that are subject to existing adjudications from the requirements of SGMA; requires adjudicated areas to report groundwater elevation and other groundwater data to DWR annually (Wat. C. § 10720.8).
5. Outlines process and scope for a comprehensive adjudication of a groundwater basin (Code of Civil Procedure § 830 et seq.).
6. Permits a party or group of parties proposing a stipulated judgement under the comprehensive adjudication of a groundwater basin to also submit the proposal to DWR for evaluation and assessment as an alternative to a GSP (Wat. C. § 10737.4(b)).
7. Permits the State Water Resources Control Board (SWRCB) to serve as a referee in a court case involving a water rights dispute upon the request of a state or federal court (Wat. C. § 2000 et seq.).

This bill:

1. Requires the court to appoint one party to forward all case management orders, judgments, and interlocutory orders to DWR within 10 business days of issuance, not including any documents that have been sealed by the court. DWR is required to post the documents on its internet website within 20 business days of receipt from a party. Requires the court to allocate payment of the costs incurred by the party appointed among the parties in an amount and a manner that the court deems equitable.
2. Requires the court, in an adjudication action for a basin required to have a GSP, to manage the case to minimize interference with the timely completion and implementation of a GSP, avoid redundancy and unnecessary costs in the development of technical information and a physical solution, and be consistent with the attainment of sustainable groundwater management.
3. Requires the court, when entering judgment in a comprehensive adjudication, to find that it has considered the water use of small farmers and disadvantaged communities, as defined by the bill.
4. Requires the court to find that a judgement in a groundwater adjudication will not substantially impair the ability of a GSA, DWR, or SWRCB to achieve sustainable groundwater management.
5. Authorizes the court to refer the matter to SWRCB for investigation pursuant to existing law.
6. Requires all monitoring and reporting required by a GSP to continue throughout the duration of the adjudication proceedings. Requires a GSA and SWRCB to submit various reports to the court during the adjudication proceeding.
7. Requires a party to the adjudication, and any other person extracting water from the basin, to comply with the applicable GSP, except as may be authorized by the court.
8. Prohibits a party to the adjudication, or any other person extracting water from the basin, from using new or increased groundwater use to establish a new claim of prescription during an adjudication proceeding.
9. Requires a GSA, upon receiving notice that an adjudication has commenced in its basin, to invite DWR to present an information update at a public meeting to explain the adjudication process and the status of the adjudication to water users within the basin and the public.

Background

1. Groundwater 101 and the Sustainable Groundwater Management Act. Groundwater is a critical source of supply that meets more than 40 percent of water demand in an average year and more than 60 percent of demand during drought years. There are three types of groundwater rights: overlying, appropriative, and prescriptive. The most common of these is the overlying right that entitles “an owner of land overlying groundwater to drill a well and pump groundwater for use of that water, within the basin or watershed” (Littleworth and Garner, 2019). No permit is required to obtain overlying rights and these rights are typically not quantified. Due to this, any landowner may pump as much groundwater as they want so long as the water is put to beneficial use and the use is reasonable (Article X, Section 2 of the California Constitution). As a result of this lack of regulation, many groundwater basins in California are in a state of overdraft (a condition where average annual pumping exceeds average annual groundwater supply in a basin). To address overdraft and other adverse effects of excessive pumping, SGMA put in place a statewide framework for groundwater management for the first time, but also stipulated that it did not alter surface or groundwater rights (Water Code § 10720.5).
2. Prescription. In some cases, a groundwater right may be obtained through “prescription,” which is somewhat akin to “squatting” only on a water right rather than on real property. Prescription occurs when a person puts water that another has a right for to beneficial use for a period of five years. The use must be “open and notorious”, adverse and hostile, and continuous and uninterrupted in order for a prescriptor to ultimately obtain a right to the water being used.
3. Adjudications. A groundwater adjudication is when parties ask a court to resolve conflicts over groundwater rights. An adjudication is initiated when one or more groundwater pumpers files a civil action asking the court to intervene to determine groundwater rights and/or limit pumping to a basin’s “safe yield” (the amount of groundwater pumped that is equal to the average replenishment rate of a groundwater basin).

Groundwater adjudications can cover an entire basin, a portion of a basin, or a group of basins, and may include non-basin areas. Groundwater rights are defined for the overlying landowners and appropriators within the adjudicated area. The court decides who is allowed to extract groundwater, how much they are allowed to extract, and designates a watermaster who ensures the adjudicated areas are managed in accordance with the court ruling. According to Bulletin 118, as of 2020, there are 30 adjudicated areas, mostly in Southern California, that cover portions of 42 groundwater basins. Five of the 42 basins are covered with two or more adjudications.

According to the Water Education Foundation, “through adjudication, the courts can assign specific water rights to water users and can compel the cooperation of those who might otherwise refuse to limit their pumping of groundwater."

State law gives every overlying property owner a potential right in an unadjudicated groundwater basin. As such, determining who has groundwater rights that could be affected by an adjudication and the scope of those rights is difficult and can be a lengthy process; adjudications typically take more than a decade to resolve. Identifying and noticing every party that may have a right, completing technical work and sorting through disagreements over this technical work, and determining historic groundwater use which could affect the scope of one's rights are all factors that can contribute to increasing the time and expense of an adjudication.

In an attempt to streamline the groundwater adjudication process, the Legislature passed SB 226 (Pavley, Chapter 676, Statutes of 2015) and AB 1390 (Alejo, Chapter 672, Statutes of 2015), in the wake of SGMA’s passage. SB 226 requires the court, in an adjudication action to determine rights to groundwater in a basin that is required to have a groundwater sustainability plan (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.

Comments

1. Need for bill. According to the author, “[t]his bill is an effort to make the groundwater adjudication process more accessible, efficient, and transparent for all water users, especially small farmers, farmers of color, and historically marginalized groundwater users and to ensure the process produces an equitable and science-based allocation of water rights to support sustainable, long-term use by all water users in a basin.”

Related/Prior Legislation

AB 560 (Bennett, 2023) requires parties to a groundwater management adjudication action to submit a proposed settlement agreement, before filing with the court, to SWRCB for a nonbinding advisory determination regarding its impact on sustainable groundwater management. AB 560 is was held in the Senate Appropriations Committee.

SB 1372 (Stern, Chapter 682, Statutes of 2022) provided that the approval of a GSP by DWR shall not be construed as a determination or opinion by DWR that the allocation of pumping rights in a GSP is consistent with groundwater rights law.

AB 2313 (Bloom, 2022) would have required the Judicial Council to establish a program to train judges in water law and expanded the utilization of special experts in complex cases involving water law. AB 2313 died in the Senate Appropriations Committee.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee,

• The State Water Resources Control Board (SWRCB) estimates ongoing costs of about $450,000 annually per adjudication that is referred to the SWRCB (Water Rights Fund). SWRCB notes these costs would be reimbursed by the parties to the adjudication through established procedures.
• The Department of Water Resources (DWR) anticipates that any costs would be minor and absorbable.

SUPPORT: (Verified 9/1/23)

California Climate and Agriculture Network

California Democratic Party

CivicWell

Community Alliance With Family Farmers

County of Santa Barbara

Indian Wells Valley Groundwater Authority

OPPOSITION: (Verified 9/5/23)

African American Farmers of California

Agricultural Council of California

Almond Alliance of California

American Pistachio Growers

California Apple Commission

California Association of Winegrape Growers

California Blueberry Association

California Blueberry Commission

California Fresh Fruit Association

California Walnut Commission

California Warehouse Association

Desert Water Agency

Elsinore Valley Municipal Water District

Indian Wells Valley Water District

Meadowbrook Dairy

Mojave Pistachios, LLC

Nisei Farmers League

Olive Growers Council of California

Searles Valley Minerals, Inc.

Sierra Shadows Ranch

United Ag

Valley Ag Water Coalition

Water Replenishment District of Southern California

Western Plant Health Association

ARGUMENTS IN SUPPORT: According to the Community Alliance with Family Farmers and California Climate and Agriculture Network, “The small farms and rural residents that our organizations represent are at such a disadvantage in the adjudication proceedings that it is unfortunate that this legal proceeding is an option to circumvent the SGMA process. … Unless the Legislature intervenes and limits the ability of the largest groundwater pumpers to circumvent the GSAs by going to court, we will see this scenario play out over and over. The idea of SGMA – that all stakeholders would be represented and their interests considered, and that there would be local community processes to achieve sustainability – will mean nothing if all these overdrafted basins end up in court. Reforming the adjudication process to be fairer and more related to the SGMA process might discourage a rash of adjudications.”

ARGUMENTS IN OPPOSITION: According to a coalition letter submitted by Indian Wells Valley Water District, Searles Valley Minerals, Inc., Sierra Shadows Ranch, Meadowbrook Dairy, and Mojave Pistachios, LLC., “AB 779 will impose onerous new procedures and tens of millions of dollars in new and unnecessary costs to comprehensively adjudicate groundwater basins, invite courts to shed their constitutional duties to investigate and impose physical solutions and determine the rights of the parties, while also expanding the role of [DWR] and [SWRCB] into areas they currently do not function.”

ASSEMBLY FLOOR: 59-17, 5/31/23

AYES: Addis, Aguiar-Curry, Alvarez, Arambula, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Ward, Weber, Wicks, Wilson, Wood, Rendon

NOES: Alanis, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Vince Fong, Gallagher, Hoover, Lackey, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron, Wallis

NO VOTE RECORDED: Bains, Grayson, Mathis, Zbur

Prepared by: Genevieve Wong / N.R. & W. / (916) 651-4116

9/5/23 17:14:51

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 779 (Wilson) - Groundwater: adjudication

Bill Summary:

This bill would enact various changes to procedures governing comprehensive groundwater adjudications and the Sustainable Groundwater Management Act (SGMA) designed to address transparency regarding the adjudication process, ensure that the water use of small farmers and disadvantaged communities have been considered by a court before a judgment is entered, and specify that monitoring and reporting under an approved groundwater sustainability plan (GSP) continues throughout the duration of the adjudication proceeding, unless otherwise ordered by the court.

Fiscal Impact:

• The State Water Resources Control Board (SWRCB) estimates ongoing costs of about $450,000 annually per adjudication that is referred to the SWRCB (Water Rights Fund). SWRCB notes these costs would be reimbursed by the parties to the adjudication through established procedures.
• The Department of Water Resources (DWR) anticipates that any costs would be minor and absorbable.

Background:

Groundwater is a critical source of supply that meets more than 40 percent of water demand in an average year and more than 60 percent of demand during drought years. There are three types of groundwater rights: overlying, appropriative, and prescriptive. The most common of these is the overlying right that entitles “an owner of land overlying groundwater to drill a well and pump groundwater for use of that water, within the basin or watershed” (Littleworth and Garner, 2019). No permit is required to obtain overlying rights and these rights are typically not quantified. Due to this, any landowner may pump as much groundwater as they want so long as the water is put to beneficial use and the use is reasonable (Article X, Section 2 of the California Constitution). As a result of this lack of regulation, many groundwater basins in California are in a state of overdraft (a condition where average annual pumping exceeds average annual groundwater supply in a basin).

The Sustainable Groundwater Management Act. To address overdraft and other adverse effects of excessive pumping, the Legislature passed SGMA, which put in place a statewide framework for groundwater management for the first time, but also stipulated that it did not alter surface or groundwater rights. SGMA requires local agencies to sustainably manage groundwater in high- or medium-priority basins by 2040. It also defines sustainable management of groundwater as the avoidance of the following six “undesirable results:” (a) chronic lowering of groundwater levels; (b) reduction of groundwater storage; (c) seawater intrusion; (d) degraded water quality; (e) land subsidence; and (f) depletions of interconnected surface water. SGMA called for the formation of local Groundwater Sustainability Agencies (GSAs), and required that critically overdrafted, high- and medium-priority groundwater basins be managed under a Groundwater Sustainability Plan (GSP). However, because of this existing court-mandated governance, oversight, and management, SGMA does not apply to adjudicated basins.

Groundwater adjudications. A groundwater adjudication is when parties ask a court to resolve conflicts over groundwater rights. An adjudication is initiated when one or more groundwater pumpers files a civil action asking the court to intervene to determine groundwater rights and/or limit pumping to a basin’s “safe yield” (the amount of groundwater pumped that is equal to the average replenishment rate of a groundwater basin).

Groundwater adjudications can cover an entire basin, a portion of a basin, or a group of basins, and may include non-basin areas. Groundwater rights are defined for the overlying landowners and appropriators within the adjudicated area. The court decides who is allowed to extract groundwater, how much they are allowed to extract, and designates a watermaster who ensures the adjudicated areas are managed in accordance with the court ruling. According to Bulletin 118, as of 2020, there are 30 adjudicated areas, mostly in Southern California, that cover portions of 42 groundwater basins. Five of the 42 basins are covered with two or more adjudications.

According to the Water Education Foundation, “through adjudication, the courts can assign specific water rights to water users and can compel the cooperation of those who might otherwise refuse to limit their pumping of groundwater."

State law gives every overlying property owner a potential right in an unadjudicated groundwater basin. As such, determining who has groundwater rights that could be affected by an adjudication and the scope of those rights is difficult and can be a lengthy process; adjudications typically take more than a decade to resolve. Identifying and noticing every party that may have a right, completing technical work and sorting through disagreements over this technical work, and determining historic groundwater use which could affect the scope of one's rights are all factors that can contribute to increasing the time and expense of an adjudication.

In an attempt to streamline the groundwater adjudication process, the Legislature passed SB 226 (Pavley, Chapter 676, Statutes of 2015) and AB 1390 (Alejo, Chapter 672, Statutes of 2015), in the wake of SGMA’s passage. SB 226 requires the court, in an adjudication action to determine rights to groundwater in a basin that is required to have a groundwater sustainability plan (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.

As noted in its analysis of this bill, the Senate Committee on Natural Resources and Water is aware of five pending groundwater adjudications:

• Santa Clara Valley – Oxnard (No. 4-001.2) and Pleasant Valley (No. 4-006) groundwater basins, commenced in December 2022.
• Cuyama Valley groundwater basin (No. 3-013), commenced in March 2022.
• Indian Wells groundwater basin (No. 6-54), commenced in November 2021.
• Upper Ventura River (No. 4-3.01), Ojai Valley (No. 4-2), Lower Ventura River (No. 4-3.02), and Upper Ojai Valley (No. 4-1) groundwater basins, commenced in November 2019.
• Las Posas Valley groundwater basin (No. 4-8), commenced in November 2018.

An additional adjudication in the Borrego Valley groundwater subbasin (No. 7-024.1) commenced in July 2020; the court approved a stipulated judgment to settle this adjudication on April 8, 2021 and the case is no longer active.

Proposed Law:

This bill would enact various changes to procedures governing comprehensive groundwater adjudications and the SGMA designed to address transparency regarding the adjudication process, ensure that the water use of small farmers and disadvantaged communities have been considered by a court before a judgment is entered, and specify that monitoring and reporting under an approved GSP continues throughout the duration of the adjudication proceeding, unless otherwise ordered by the court. Specifically, this bill would:

1. Require a court to appoint one party to forward all case management orders, judgments, and interlocutory orders to DWR within 10 business days of issuance. DWR must post the documents on its website in the interest of transparency and accessibility within 20 business days of receipt from a party. These provisions do not apply to any documents that have been sealed by the court.
2. Require the court to allocate payment of the costs incurred by the party appointed to forward all case management orders, judgments, and interlocutory orders to the department among the parties in an amount and a manner that the court deems equitable.
3. Require a court in an adjudication action for a basin required to have a GSP under SGMA to manage the case in accordance with Section 10737.2 of the Water Code.
4. Authorize a court to enter judgment in a comprehensive adjudication, in addition to existing requirements, if the court finds:
   1. that the water use of small farmers and disadvantaged communities have been considered; and
   2. that the judgment will not substantially impair the ability of a GSA, SWRCB, or DWR to comply with SGMA and to achieve sustainable groundwater management.
5. Clarify that a court may refer the matter to the SWRCB for investigation and report pursuant to Section 2001 of the Water Code, and specifies that a party may request that the court refer the matter to the SWRCB under this provision.
6. Define certain terms for these purposes.
   1. “Disadvantaged communities” mean communities identified by the California Environmental Protection Agency as disadvantaged communities pursuant to Section 39711 of the Health and Safety Code.
   2. “Small farmers” means farmers with between ten thousand dollars ($10,000) and four hundred thousand dollars ($400,000) in gross farm sales, as referenced in the Department of Food and Agriculture’s California Underserved and Small Producers Program.
7. Require all monitoring and reporting required by a GSP to continue throughout the duration of the adjudication proceedings. Requires a GSA and SWRCB to submit various reports to the court during the adjudication proceeding.
8. Require a party to the adjudication, and any other person extracting water from the basin, to comply with the applicable GSP, except as may be authorized by the court.
9. Prohibit a party to the adjudication, or any other person extracting water from the basin, from using new or increased groundwater use to establish a new claim of prescription during an adjudication proceeding, except as authorized by the court
10. Require a GSA, upon receiving notice that an adjudication has commenced in its basin, to arrange for DWR to present an information update at a public meeting to explain the adjudication process and the status of the adjudication to water users within the basin and the public.

Related Legislation:

AB 560 (Bennett, 2023) would require the parties to an adjudication action regarding groundwater management, before filing a proposed settlement agreement with the court, to submit the proposed settlement agreement to SWRCB for a nonbinding advisory determination as to whether the proposed settlement agreement will substantially impair the ability of a GSA, the SWRCB, or DWR to achieve sustainable groundwater management, as provided.

SB 1372 (Stern, Ch. 682, Stats. 2022) provides that the approval of a GSP by DWR shall not be construed as a determination or opinion by DWR that the allocation of pumping rights in a GSP is consistent with groundwater rights law.

AB 2313 (Bloom, 2022) would have required the Judicial Council to establish a program to train judges in water law and expanded the utilization of special experts in complex cases involving water law. AB 2313 was held in this committee.

AB 938 (Rodriguez, 2016) would have permitted a local agency or water master administering an adjudicated groundwater basin to elect that the adjudicated basin be subject to SGMA. AB 928 died in the Senate Committee on Natural Resources and Water.

SB 226 (Pavley, Ch. 676, Stats. of 2015) requires a court to adjudicate rights to groundwater in a basin that is required to have a GSP under SGMA 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.

AB 1390 (Alejo, Ch. 672, Stats. of 2015) authorized a GSA for the basin, a city, county, or city and county that overlies the basin, and certain persons to intervene in a groundwater adjudication.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 779 (Author:Wilson)

Version: July 3, 2023

Hearing Date: July 11, 2023

Fiscal: Yes

Urgency: No

AMConsultant:

SUBJECT

Groundwater: adjudication

DIGEST

This bill enacts various changes to procedures governing comprehensive groundwater adjudications and the Sustainable Groundwater Management Act (SGMA) designed to address transparency regarding the adjudication process, ensure that the water use of small farmers and disadvantaged communities have been considered by a court before a judgment is entered, and specify that monitoring and reporting under an approved groundwater sustainability plan (GSP) continues throughout the duration of the adjudication proceeding, unless otherwise ordered by the court.  

EXECUTIVE SUMMARY

The adjudication of water rights in the state can be complex and involve many parties and counterclaims. This generally leads to the process being costly and protracted, which can harm water users, especially small and disadvantaged farmers. Groundwater is a critical source of water supply in this state that meets more than 40 percent of water demand in an average year and more than 60 percent of demand during drought years. In 2014, SGMA was passed to establish local groundwater sustainability agencies (GSAs), who are responsible for implementing SGMA by bringing their over-drafted groundwater basins into sustainable yield. However, SGMA does not alter preexisting groundwater rights, and basins that are undergoing adjudication are exempt from its requirements. According to the author, this frustrates the implementation of GSPs and hinders sustainable management of groundwater because water users may have a right, or think they have a right, to pump more water than can sustainably or equitably be pumped. This bill seeks to remedy these issues by enacting changes to the adjudication of groundwater rights to promote equity, efficiency, and transparency.

The bill is author sponsored and supported by the California Climate & Agriculture Network, the Community Alliance with Family Farmers, and the Cuyama Valley Community Association. The bill is opposed by a coalition of water agencies, agricultural interests, and the Chamber of Commerce. This bill passed the Senate Natural Resources and Water Committee on a vote of 7 to 3.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Establishes SGMA with the goal of providing for the sustainable management of groundwater basins, enhancing local management of groundwater consistent with rights to use or store groundwater, providing local groundwater agencies with the authority and the technical and financial assistance necessary to sustainably manage groundwater, and establishing minimum standards for sustainable groundwater management.
   1. Defines sustainable management of groundwater as the avoidance of the following six “undesirable results:”
      1. chronic lowering of groundwater levels;
      2. reduction of groundwater storage;
      3. seawater intrusion;
      4. degraded water quality;
      5. land subsidence; and
      6. depletions of interconnected surface water (Wat. Code § 10720 et seq.)
2. Requires, pursuant to SGMA, all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources (DWR) to develop and be managed under a GSP or coordinated GSPs. (Wat. Code § 10720.7.)
3. Provides that nothing in SGMA determines or alters surface water rights or groundwater rights under common law or any provision of law that determines or grants surface water rights. (Wat. Code § 10720.5(b).)
4. Exempts 26 groundwater basins or sub-basins that are subject to existing adjudications from the requirements of SGMA; requires adjudicated areas to report groundwater elevation and other groundwater data to DWR annually (Wat. Code § 10720.8.)
5. Authorizes the creation of local GSAs and requires GSAs to consider the interests of all beneficial uses and users of groundwater, as well as those responsible for implementing groundwater sustainability plans. (Wat. Code § 10723.2.)
6. Establishes the procedures for a court to use when adjudicating a groundwater basin. (Code of Civ. Proc. § 830 et seq.)
7. Authorizes any of the following parties to intervene in a groundwater adjudication:
   1. a groundwater sustainability agency for the basin or a portion of the basin;
   2. a city, county, or city and county that overlies the basin or a portion of the basin;
   3. the state; and
   4. 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. (Code of Civ. Proc. § 837 & 837.5.)
8. Provides that a court may enter a judgment in a comprehensive groundwater adjudication if the court finds that the judgment meets all of the following criteria:
   1. it is consistent with Section 2 of Article X of the California Constitution;
   2. it is consistent with the water right priorities of all non-stipulating parties and any persons who have claims that are exempted in the basin; and
   3. it treats all objecting parties and any persons who have claims that are exempted as compared to the stipulating parties. (Code of Civ. Proc. § 850(a).)
9. Provides that if a party or group of parties submits a proposed stipulated judgment that is supported by more than 50 percent of all parties who are groundwater extractors in the basin or use the basin for groundwater storage and is supported by groundwater extractors responsible for at least 75 percent of the groundwater extracted in the basin during the five calendar years before the filing of the complaint, the court may adopt the proposed stipulated judgment, as applied to the stipulating parties, if the proposed stipulated judgment meets the criteria described in 6). (Code of Civ. Proc. § 850(b).)
10. Authorizes the court, upon a showing that a basin is in a condition of long-term overdraft, to issue a preliminary injunction upon notice and hearing, as provided. (Code of Civ. Proc. § 874).
11. Authorizes a party proposing a stipulated judgment to submit the proposed stipulated judgement to DWR for evaluation and assessment that it satisfies the objectives of SGMA for the basin. If DWR determines that a judgement satisfies the objectives of SGMA, DWR submits to the court the assessments and recommended corrective actions and the court, if necessary, determines whether to amend the judgment to adopt the DWR’s recommended corrective actions. (Wat. Code § 10737.4.)
12. Requires a court presiding over an adjudication to manage the proceedings in a manner that does not interfere with the completion and implementation of a GSP and that is consistent with sustainable groundwater management under SGMA (Wat. Code § 10737.2.)
13. Provides a court is not to approve entry of judgment in an adjudication action for a basin required to have a groundwater sustainability plan unless the court finds that the judgment will not substantially impair the ability of a GSA, the State Water Resources Control Board (SWRCB), or DWR to comply with SGMA and to achieve sustainable groundwater management. (Wat. Code § 10737.8)
14. Authorizes SWRCB to serve as a referee in a court case involving a water rights dispute upon the request of a state or federal court. (Wat. Code § 2000 et seq.)
15. Declares that because of the conditions prevailing in this state the general welfare requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of 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 in the interest of the people and for the public welfare, and that the right to water or to the use or flow of water in or from any natural stream or water course in this state is to be limited to such water as is reasonably required for the beneficial use to be served, and such right does not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. (Cal. Const. art. X, § 2.)
16. Provides that no water is to be available for appropriation by storage in, or by direct diversion from, any of the components of the California Wild and Scenic Rivers System, as such system exists on January 1, 1981, where such appropriation is for export of water into another major hydrologic basin of the State, as defined by the Department of Water, unless such export is expressly authorized prior to such appropriation by an initiative statute approved by the electors, or the Legislature, by statute passed in each house by roll call vote entered in the journal, two-thirds of the membership concurring. (Ibid.)

This bill:

1. Requires a court to appoint one party to forward all case management orders, judgments, and interlocutory orders to DWR within 10 business days of issuance. DWR must post the documents on its website in the interest of transparency and accessibility within 20 business days of receipt from a party. These provisions do not apply to any documents that have been sealed by the court.
2. Requires the court to allocate payment of the costs incurred by the party appointed to forward all case management orders, judgments, and interlocutory orders to the department among the parties in an amount and a manner that the court deems equitable.
3. Requires a court in an adjudication action for a basin required to have a GSP under SGMA to manage the case in accordance with Section 10737.2 of the Water Code.
4. Authorizes a court to enter judgment in a comprehensive adjudication, in addition to existing requirements, if the court finds:
   1. that the water use of small farmers and disadvantaged communities have been considered; and
   2. that the judgment will not substantially impair the ability of a GSA, SWRCB, or DWR to comply with SGMA and to achieve sustainable groundwater management.
5. Clarifies that a court may refer the matter to the SWRCB for investigation and report pursuant to Section 2001 of the Water Code, and specifies that a party may request that the court refer the matter to the SWRCB under this provision.
6. Defines certain terms for these purposes.
   1. “Disadvantaged communities” mean communities identified by the California Environmental Protection Agency as disadvantaged communities pursuant to Section 39711 of the Health and Safety Code.
   2. “Small farmers” means farmers with between ten thousand dollars ($10,000) and four hundred thousand dollars ($400,000) in gross farm sales, as referenced in the Department of Food and Agriculture’s California Underserved and Small Producers Program.
7. Requires all monitoring and reporting required by a GSP to continue throughout the duration of the adjudication proceedings. Requires a GSA and SWRCB to submit various reports to the court during the adjudication proceeding.
8. Requires a party to the adjudication, and any other person extracting water from the basin, to comply with the applicable GSP, except as may be authorized by the court.
9. Prohibits a party to the adjudication, or any other person extracting water from the basin, from using new or increased groundwater use to establish a new claim of prescription during an adjudication proceeding, except as authorized by the court
10. Requires a GSA, upon receiving notice that an adjudication has commenced in its basin, to arrange for DWR to present an information update at a public meeting to explain the adjudication process and the status of the adjudication to water users within the basin and the public.

COMMENTS

1. Stated need for the bill

The author writes:

AB 779 is an effort to make the groundwater adjudication process more accessible, efficient, and transparent for all water users, especially small farmers, farmers of color, and historically marginalized groundwater users and to ensure the process produces an equitable and science-based allocation of water rights to support sustainable, long-term use by all water users in a basin.

1. Adjudication of water rights and SGMA

The adjudication of water rights in the state can be complex and involve many parties. According to the State Water Resources Control Board a “water right is a legal entitlement authorizing water to be diverted from a specified source and put to beneficial, nonwasteful use. Water rights are property rights, but their holders do not own the water itself.” ^[1] Existing state law recognizes three types of water rights—riparian rights, appropriative rights, and groundwater rights. With the impacts of climate change affecting the scarcity and availability of water, via droughts and other conditions, litigation around water rights will likely increase in the near future. This bill is focused on addressing concerns with the adjudication of groundwater rights and the sustainability of groundwater basins.

1. SGMA

In 2014, the Legislature passed SGMA, which put in place a statewide framework for groundwater management for the first time, but specified that it did not alter surface or groundwater rights. The purpose of SGMA was to address overdraft and other adverse effects of excessive pumping of groundwater. SGMA specifically provides that its provisions do not determine or alter surface water rights or groundwater rights under common law or any provision of law that determines or grants surface water rights. (Wat. Code § 10720.5(b).) After the enactment of SGMA, the Legislature passed SB 226 (Pavley, Ch. 676, Stats. 2015) and AB 1390 (Alejo, Ch. 672, Stats. 2015) with the intent of streamlining the adjudication process for groundwater rights. Under SB 226, a court must adjudicate rights to groundwater in a basin that is required to have a GSP under SGMA 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. (Wat. Code § 10737.2.) AB 1390 authorized a GSA for the basin, a city, county, or city and county that overlies the basin, and certain persons to intervene in a groundwater adjudication. (Code of Civ. Proc. § 837 & 837.5.)

b. Groundwater adjudication proceedings

Under state law, every overlying property owner has a potential right in an unadjudicated groundwater basin, which makes adjudication of those rights difficult and often a very lengthy process. Sometimes taking more than a decade for water rights holders and basin managers to come to an agreement. Existing state law provides a court may enter a judgement in a comprehensive groundwater basin adjudication if the judgement is consistent with the reasonable use doctrine, is consistent with the rights of parties exempted from the adjudication, and treats all objecting and exempted parties equitably. (Code of Civ. Proc. § 850(a).) Any party to the adjudication may propose a stipulated judgment to the court, and the court may adopt the stipulated judgement if the parties proposing the settlement represent 75 percent of the groundwater pumped in the basin or if 50 percent of the pumpers in the basin agree to the stipulated judgment (Id. at (b).) The party proposing the stipulated judgment may submit the proposed stipulated judgment to DWR for an evaluation and assessment that it satisfies the objects of SGMA for the basin, and DWR can recommend corrective actions. (Wat. Code § 10737.4.) The court may determine it is necessary to amend the judgment to adopt DWR’s recommended corrective actions. (Ibid.). This process, however, is only triggered if a party chooses to submit the proposed settlement. Additionally, a court is not to approve entry of judgment in an adjudication action for a basin required to have a groundwater sustainability plan unless the court finds that the judgment will not substantially impair the ability of a GSA, SWRCB, or DWR to comply with SGMA and to achieve sustainable groundwater management. (Wat. C. § 10737.8.)

According to the Senate Natural Resources Committee, there are currently five pending groundwater adjudications:

• Santa Clara Valley – Oxnard (No. 4-001.2) and Pleasant Valley (No. 4-006) groundwater basins, commenced in December 2022.
• Cuyama Valley groundwater basin (No. 3-013), commenced in March 2022.
• Indian Wells groundwater basin (No. 6-54), commenced in November 2021.
• Upper Ventura River (No. 4-3.01), Ojai Valley (No. 4-2), Lower Ventura River (No. 4-3.02), and Upper Ojai Valley (No. 4-1) groundwater basins, commenced in November 2019.
• Las Posas Valley groundwater basin (No. 4-8), commenced in November 2018.^[2]

In July 2020, an additional adjudication in the Borrego Valley groundwater subbasin (No. 7-024.1) commenced; however, the court approved a stipulated judgment to settle this adjudication on April 8, 2021 and the case is no longer active.^[3]

1. This bill seeks to enact changes to the existing process for the adjudication of groundwater rights to promote equity, efficiency, and transparency

According to the author, the existing groundwater adjudication process is flawed in numerous ways. Small farmers and under-resourced community members often lack the time and resources to hire lawyers, participate in proceedings, or track down court documents to stay updated on the process. The author further contends that the current process makes it tremendously cumbersome for expert agencies like DWR or SWRCB to provide technical input and ensure compliance with SGMA. The author states that these concerns reveal a lack of equity, efficiency, and transparency that makes the current groundwater adjudication process inaccessible to many small farmers and groundwater users. In addition to delaying the implementation of a GSP, some water users may increase pumping without restriction during the pendency of an adjudication, a phenomenon known as a “rush to the pumphouse,” which can have significant ecological and economic impacts for other water users in the basin. This bill is intended to address these concerns in several ways.

First, in regards to transparency, the bill requires a court to appoint one party to forward all case management orders, judgments, and interlocutory orders to DWR within 10 business days of issuance, and requires DWR to post the documents on its website within 20 business days of receipt from a party. The bill makes it clear that these provisions do not apply to any documents that have been sealed by the court. Additionally, the bill requires a GSA, upon receiving notice that an adjudication has commenced in its basin, to arrange for DWR to present an information update at a public meeting to explain the adjudication process and the status of the adjudication to water users within the basin and to the public. Lastly, the bill requires all monitoring and reporting required by a GSP to continue throughout the duration of the adjudication proceedings, and requires a GSA and SWRCB to submit various reports to the court during the proceeding.

The bill enacts several changes to address equity and efficiency. It requires the court to allocate payment of the costs incurred by the party appointed to forward all case management orders, judgments, and interlocutory orders to the department among the parties in an amount and a manner that the court deems equitable. In addition to existing requirements under Section 850 of the Code of Civil Procedure, the bill authorizes a court to enter judgment in a comprehensive adjudication if the court finds that the water use of small farmers and disadvantaged communities have been considered, and that the judgment will not substantially impair the ability of a GSA, the SWRCB, or DWR to comply with SGMA and achieve sustainable groundwater management. The bill clarifies that in an adjudication action for a basin required to have a GSP under SGMA the court must manage the case in accordance with Section 10737.2 of the Water Code. That section specifies a court is to manage the proceedings in a manner that does not interfere with the completion and implementation of a GSP and that is consistent with sustainable groundwater management under SGMA. Additionally, the bill also clarifies that a court may refer the matter to the SWRCB for investigation and reporting pursuant to Section 2001 of the Water Code, and provides that a party may request the court refer the matter to the SWRCB under this provision.

In order to ensure a GSP is not negatively affected during the pendency of the adjudication, the bill does three things. It requires a party to the adjudication, and any other person extracting water from the basin, to: (1) comply with the applicable GSP; and (2) prohibits them from using new or increased groundwater use to establish a new claim of prescription during an adjudication proceeding, except as authorized by the court. Prescription occurs when a person puts water that another person has a right over to beneficial use for a period of five years. Existing law requires the use must be open and notorious, adverse and hostile, and continuous and uninterrupted in order for a person to ultimately obtain a right to the water being used. Lastly, all monitoring and reporting required by a GSP must continue throughout the duration of the adjudication proceedings, and GSAs and SWRCB are to submit various reports to the court during the proceeding.

1. Statements in support

The California Climate & Agriculture Network and the Community Alliance with Family Farmers write in support, stating:

Though this bill will not address the inequities in the adjudication process—only having the court appoint class counsel for the rural residents and small farmers would accomplish that--nevertheless bringing the state into the court proceedings and requiring the court to consider the needs of small farms and disadvantaged communities will inject more of SGMA into the adjudication proceedings. Since neither small farms nor disadvantaged communities—nor the environment—have fared well in the history of adjudication, this would be a beneficial reform.

The small farms and rural residents that our organizations represent are at such a disadvantage in the adjudication proceedings that it is unfortunate that this legal proceeding is an option to circumvent the SGMA process. As we have seen in Cuyama, where the largest agricultural pumpers—Grimmway and Bolthouse, both now owned by hedge funds—decided they could get a better deal from the court than from the GSA process and forced everyone into court, the costs of legal representation are too high for the small pumpers. Similarly, a large pistachio grower from Kern County filed for adjudication in Indian Wells when he decided the SGMA process wasn’t going his way.

Unless the Legislature intervenes and limits the ability of the largest groundwater pumpers to circumvent the GSAs by going to court, we will see this scenario play out over and over. The idea of SGMA—that all stakeholders would be represented and their interests considered, and that there would be local community processes to achieve sustainability—will mean nothing if all these overdrafted basins end up in court. Reforming the adjudication process to be fairer and more related to the SGMA process might discourage a rash of adjudications.

1. Statements in opposition

The bill is opposed unless amended by a coalition of water agencies, agricultural interests, and the Chamber of Commerce. There concerns include that reporting rulings to DWR by parties to the adjudication is onerous and that it is inappropriate for DWR to be maintain these court records. They note that certain provisions of the bill are duplicative and merely refer to existing provisions of law. The opposition coalition writes:

While we respect the author’s intention to make these complex proceedings more accessible to affected landowners who may not fully understand the import of participating in an adjudication, the bill in its current form creates onerous procedures that may not be necessary, given recent legislation that streamlined groundwater adjudications.

Comprehensive groundwater adjudications are notoriously complex, lengthy, and expensive legal proceedings. We respect the intention to attempt to lower barriers to participation and to increase understanding of the importance of adjudications, but we are concerned that some provisions are duplicative of existing law and inadvertently increase length and expense of groundwater adjudications. We are diligently working with the author’s office to attempt to resolve our concerns.

The opposition then state they have the following concerns with the bill:

• forwarding pleadings to DWR for posting is onerous; and
• courts can already obtain recommendations from DWR and the SWRCB

SUPPORT

California Climate & Agriculture Network

Community Alliance with Family Farmers

Cuyama Valley Community Association

OPPOSITION

African American Farmers of California

Agricultural Council of California

American Pistachio Growers

Association of California Egg Farmers

California Apple Commission

California Association of Wheat Growers

California Association of Winegrape Growers

California Blueberry Association

California Blueberry Commission

California Chamber of Commerce

California Fresh Fruit Association

California Grain and Feed Association

California League of Food Producers

California Seed Association

California Walnut Commission

California Warehouse Association

Nisei Farmers League

Olive Growers Council of California

Pacific Egg & Poultry Association

United Ag

Western Growers Association

Western Plant Health Association

RELATED LEGISLATION

Pending Legislation: AB 560 (Bennett, 2023) requires the parties to an adjudication action regarding groundwater management, before filing a proposed settlement agreement with the court, to submit the proposed settlement agreement to SWRCB for a nonbinding advisory determination as to whether the proposed settlement agreement will substantially impair the ability of a GSA, the SWRCB, or DWR to achieve sustainable groundwater management, as provided. AB 560 will be heard in this Committee on the same day as this bill.

Prior Legislation:

SB 1372 (Stern, Ch. 682, Stats. 2022) provides that the approval of a GSP by DWR shall not be construed as a determination or opinion by DWR that the allocation of pumping rights in a GSP is consistent with groundwater rights law.

AB 2313 (Bloom, 2022) would have required the Judicial Council to establish a program to train judges in water law and expanded the utilization of special experts in complex cases involving water law. AB 2313 died in the Senate Appropriations Committee.

AB 938 (Rodriguez, 2016) would have permitted a local agency or water master administering an adjudicated groundwater basin to elect that the adjudicated basin be subject to SGMA. AB 928 died in the Senate Committee on Natural Resources and Water.

SB 226 (Pavley, Ch. 676, Stats. of 2015) see Comment 2, above.

AB 1390 (Alejo, Ch. 672, Stats. of 2015) see Comment 2, above.

PRIOR VOTES

Senate Natural Resources and Water Committee (Ayes 7, Noes 3)

Assembly Floor (Ayes 59, Noes 17)

Assembly Appropriations Committee (Ayes 11, Noes 3)

Assembly Judiciary Committee (Ayes 8, Noes 3)

Assembly Water, Parks and Wildlife Committee (Ayes 11, Noes 3)

**************

1. State Wat. Resources Control Bd., The Water Right Process (updated Aug. 20, 2020), available a https://www.waterboards.ca.gov/waterrights/board_info/water_rights_process.html. ↑

2. Sen. Natural Resources Comm. Analysis of AB 779 (2023-24 Reg. Sess.) as amended Jun. 19. 2023 at p. 2. ↑

3. Ibid. ↑

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Dave Min, Chair

2023 - 2024 Regular

Bill No: AB Hearing Date: June 27, 2023

Subject: Groundwater: adjudication

BACKGROUND AND EXISTING LAW

1. Groundwater 101 and the Sustainable Groundwater Management Act (SGMA). Groundwater is a critical source of supply that meets more than 40 percent of water demand in an average year and more than 60 percent of demand during drought years. There are three types of groundwater rights: overlying, appropriative, and prescriptive. The most common of these is the overlying right that entitles “an owner of land overlying groundwater to drill a well and pump groundwater for use of that water, within the basin or watershed” (Littleworth and Garner, 2019). No permit is required to obtain overlying rights and these rights are typically not quantified. Due to this, any landowner may pump as much groundwater as they want so long as the water is put to beneficial use and the use is reasonable (Article X, Section 2 of the California Constitution). As a result of this lack of regulation, many groundwater basins in California are in a state of overdraft (a condition where average annual pumping exceeds average annual groundwater supply in a basin). To address overdraft and other adverse effects of excessive pumping, SGMA put in place a statewide framework for groundwater management for the first time, but also stipulated that it did not alter surface or groundwater rights (Water Code § 10720.5).
   
2. Prescription. In some cases, a groundwater right may be obtained through “prescription,” which is somewhat akin to “squatting” only on a water right rather than on real property. Prescription occurs when a person puts water that another has a right for to beneficial use for a period of five years. The use must be “open and notorious”, adverse and hostile, and continuous and uninterrupted in order for a prescriptor to ultimately obtain a right to the water being used.
   
3. Adjudications. A groundwater adjudication is when parties ask a court to resolve conflicts over groundwater rights. An adjudication is initiated when one or more groundwater pumpers files a civil action asking the court to intervene to determine groundwater rights and/or limit pumping to a basin’s “safe yield” (the amount of groundwater pumped that is equal to the average replenishment rate of a groundwater basin).
   

Groundwater adjudications can cover an entire basin, a portion of a basin, or a group of basins, and may include non-basin areas. Groundwater rights are defined for the overlying landowners and appropriators within the adjudicated area. The court decides who is allowed to extract groundwater, how much they are allowed to extract, and designates a watermaster who ensures the adjudicated areas are managed in accordance with the court ruling. According to Bulletin 118, as of 2020, there are 30 adjudicated areas, mostly in Southern California, that cover portions of 42 groundwater basins. Five of the 42 basins are covered with two or more adjudications.

According to the Water Education Foundation, “through adjudication, the courts can assign specific water rights to water users and can compel the cooperation of those who might otherwise refuse to limit their pumping of groundwater."

State law gives every overlying property owner a potential right in an unadjudicated groundwater basin. As such, determining who has groundwater rights that could be affected by an adjudication and the scope of those rights is difficult and can be a lengthy process; adjudications typically take more than a decade to resolve. Identifying and noticing every party that may have a right, completing technical work and sorting through disagreements over this technical work, and determining historic groundwater use which could affect the scope of one's rights are all factors that can contribute to increasing the time and expense of an adjudication.

In an attempt to streamline the groundwater adjudication process, the Legislature passed SB 226 (Pavley, Chapter 676, Statutes of 2015) and AB 1390 (Alejo, Chapter 672, Statutes of 2015), in the wake of SGMA’s passage. SB 226 requires the court, in an adjudication action to determine rights to groundwater in a basin that is required to have a groundwater sustainability plan (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.

The Committee is aware of five pending groundwater adjudications:

• Santa Clara Valley – Oxnard (No. 4-001.2) and Pleasant Valley (No. 4-006) groundwater basins, commenced in December 2022.
• Cuyama Valley groundwater basin (No. 3-013), commenced in March 2022.
• Indian Wells groundwater basin (No. 6-54), commenced in November 2021.
• Upper Ventura River (No. 4-3.01), Ojai Valley (No. 4-2), Lower Ventura River (No. 4-3.02), and Upper Ojai Valley (No. 4-1) groundwater basins, commenced in November 2019.
• Las Posas Valley groundwater basin (No. 4-8), commenced in November 2018
  

An additional adjudication in the Borrego Valley groundwater subbasin (No. 7-024.1) commenced in July 2020; the court approved a stipulated judgment to settle this adjudication on April 8, 2021 and the case is no longer active.

Existing law

1. Enacts SGMA, which requires local agencies to sustainably manage groundwater in high- or medium-priority basins by 2040. Defines sustainable management of groundwater as the avoidance of the following six “undesirable results:” (a) chronic lowering of groundwater levels; (b) reduction of groundwater storage; (c) seawater intrusion; (d) degraded water quality; (e) land subsidence; and (f) depletions of interconnected surface water (Water Code (Wat. C.) § 10720 et seq.).
   
2. Requires local agencies in high- and medium-priority basins to form a GSA by June 30, 2017, unless statute designates an “exclusive local agency” for a given area. Provides that a county will be the default GSA for any area in a high- or medium- priority basin not managed by a GSA unless said county notifies DWR that it will not be the GSA for an uncovered portion of a high- or medium-priority basin (Wat. C. §§ 10723 – 10724).
   
3. Requires critically overdrafted groundwater basins to be managed under a GSP by January 31, 2020 and high- or medium-priority groundwater basins to be managed under a GSP by January 31, 2022 (Wat. C. § 10720.7).
   
4. Exempts 26 groundwater basins or sub-basins that are subject to existing adjudications from the requirements of SGMA; requires adjudicated areas to report groundwater elevation and other groundwater data to DWR annually (Wat. C. § 10720.8).
   
5. Outlines process and scope for a comprehensive adjudication of a groundwater basin (Code of Civil Procedure § 830 et seq.).
   
6. Permits a party or group of parties proposing a stipulated judgement under the comprehensive adjudication of a groundwater basin to also submit the proposal to DWR for evaluation and assessment as an alternative to a GSP (Wat. C. § 10737.4(b)).
   
7. Permits SWRCB to serve as a referee in a court case involving a water rights dispute upon the request of a state or federal court (Wat. C. § 2000 et seq.).

PROPOSED LAW

This bill, in groundwater adjudication proceedings for basins in which comprehensive adjudication has not begun by January 1, 2024:

1. Requires the court to appoint one party to forward all case management orders, judgments, and interlocutory orders to DWR within 10 business days of issuance, not including any documents that have been sealed by the court. DWR is required to post the documents on its internet website within 20 business days of receipt from a party.
   
2. Requires the court, in an adjudication action for a basin required to have a GSP, to manage the case to minimize interference with the timely completion and implementation of a GSP, avoid redundancy and unnecessary costs in the development of technical information and a physical solution, and be consistent with the attainment of sustainable groundwater management.
   
3. Encourages the court to invite a representative from DWR or SWRCB to provide testimony on equitable and sustainable pumping allocations for the basin, sustainable groundwater management best practices and recommendations, and the water use of small farmers and disadvantaged communities and potential impacts on their needs.
   
   1. Defines “disadvantaged communities” as one identified by CalEnviro Screen for purposes of the bill.
      
   2. Defines “small farmers” to mean farmers with between $10,000 and $400,000 in gross farm sales.
      
4. Requires the court, when entering judgment in a comprehensive adjudication, to find that it has considered the water use of small farmers and disadvantaged communities.
   
5. Requires the court to find that a judgement in a groundwater adjudication will not substantially impair the ability of a GSA, DWR, or SWRCB to achieve sustainable groundwater management.
   
6. Requires all monitoring and reporting required by a GSP to continue throughout the duration of the adjudication proceedings. Requires a GSA and SWRCB to submit various reports to the court during the adjudication proceeding.
   
7. Requires a party to the adjudication, and any other person extracting water from the basin, to comply with the applicable GSP, except as may be authorized by the court.
   
8. Prohibits a party to the adjudication, or any other person extracting water from the basin, from using new or increased groundwater use to establish a new claim of prescription during an adjudication proceeding.
   
9. Requires a GSA, upon receiving notice that an adjudication has commenced in its basin, to arrange for DWR to present an information update at a public meeting to explain the adjudication process and the status of the adjudication to water users within the basin and the public.

ARGUMENTS IN SUPPORT

According to the author, “[t]his bill is an effort to make the groundwater adjudication process more accessible, efficient, and transparent for all water users, especially small farmers, farmers of color, and historically marginalized groundwater users and to ensure the process produces an equitable and science-based allocation of water rights to support sustainable, long-term use by all water users in a basin.”

ARGUMENTS IN OPPOSITION

According to a coalition letter submitted by the California Chamber of Commerce on behalf of various agricultural groups, AB 779’s requirement that a party provide rulings and case management orders to DWR for posting online would be a significant undertaking and question “whether it is appropriate for DWR to be tasked with maintaining court records.” The letter argues that it would create new responsibilities for a state agency and make a non-judicial agency a keeper of court documents. The letter instead suggests that “the courts are better suited to ensuring public access to their own records.” The letter also expresses concern with provisions which encourage a court to invite SWRCB or DWR to provide technical assistance or expert testimony. According to the letter, “We do not believe that [SWRCB] staff or DWR staff would by default quality as experts under [Evidence Code Section 800], particularly on issues outside of staff’s core competencies.” The letter instead suggest to amend the language to encourage a court to invite SWRCB or DWR to only provide technical assistance.

COMMENTS

Double referral. This bill is double referred with the Senate Judiciary Committee, with this committee being the committee of first referral. Elements of this bill under the jurisdiction of the Senate Judiciary Committee are included here for context and completeness only and will be discussed before that committee.

Race to the courthouse. The bill’s provisions only apply to basins where a comprehensive adjudication has not commenced before January 1, 2024. This was likely done to avoid changing the requirements and processes of any actions already pending. However, including such a date could also create a situation encouraging parties to rush to commence the adjudications before that date to avoid the new requirements of this bill. Some of the bill’s components are critical to the success of SGMA. For example, proposed Water Code § 10737.3 requires all monitoring and reporting required under a GSP or interim plan to continue throughout the duration of the adjudication proceedings and requires a party to the adjudication and any other person extracting water from the basin to comply with the GSP or interim plan throughout the duration of the adjudication proceedings. However, if the adjudication commenced before January 1, 2024, it would appear that these requirements would not apply.

Allowances such as these could significantly undermine SGMA.

The committee may wish amend the bill to strike these provisions. (See Amendments 1, 2, and 3).

Requested author’s amendments. Due to the short timeframe between the hearing of this bill in this committee and the “author amendment” deadline of the Senate Judiciary committee, the author has asked that the following amendments also be made:

• Amend Code of Civil Procedure § 831.5 to require the court to allocate the payment of costs incurred by the party appointed to forward all case management orders, judgements, and interlocutory orders to DWR among the parties in an amount and a manner that the court deems equitable. (See Amendment 1).
• Amend Water Code § 10737.9 to require a groundwater sustainability agency to invite DWR to present the informational update, instead of requiring the groundwater sustainability agency to arrange for DWR to present the information (See Amendment 4).
  

The committee may wish to amend the bill to include these amendments.

Related legislation

AB 560 (Bennett, 2023) requires the court, before entering final judgment, to refer the proposed settlement to SWRCB for an advisory determination as to whether the proposed judgement will substantially impair the ability of a GSA, SWRCB, or DWR to achieve sustainable groundwater management.

SB 1372 (Stern, Chapter 682, Statutes of 2022) provides that the approval of a GSP by DWR shall not be construed as a determination or opinion by DWR that the allocation of pumping rights in a GSP is consistent with groundwater rights law.

AB 2313 (Bloom, 2022) would have required the Judicial Council to establish a program to train judges in water law and expanded the utilization of special experts in complex cases involving water law. AB 2313 died in the Senate Appropriations Committee.

AB 938 (Rodriguez, 2016) would have permitted a local agency or water master administering an adjudicated groundwater basin to elect that the adjudicated basin be subject to SGMA. AB 928 died in the Senate Committee on Natural Resources and Water.

SB 226 (Pavley, Chapter 676, Statutes of 2015) integrates and streamlines the groundwater adjudication process for groundwater basins that are subject to SGMA.

AB 1390 (Alejo, Chapter 672, Statutes of 2015) added new provisions to the Civil Code of Procedure that establish methods and procedures for comprehensive groundwater adjudications that are consistent with sustainable groundwater management.

SUGGESTED AMENDMENTS

AMENDMENT 1

Amend Code of Civil Procedure § 831.5 as follows:

831.5. (a) The court shall appoint one party to forward all case management orders, judgments, and interlocutory orders to the department within 10 business days of issuance. The department shall post the documents on its internet website in the interest of transparency and accessibility within 20 business days of receipt from a party. This section does not apply to any documents that have been sealed by the court.

(b) The court shall allocate payment of the costs incurred by the party appointed to forward all case management orders, judgements, and interlocutory orders to the department among the parties in an amount and a manner that the court deems equitable.

(b) This section shall apply only to basins in which a comprehensive adjudication has not been commenced by January 1, 2024.

AMENDMENT 2

Amend Code of Civil Procedure § 850 as follows:

850. (a) …

.

.

.

(f) The amendments made to this section by the adding this subdivision shall only apply to basins in which a comprehensive adjudication has not been commenced by January 1, 2024.

AMENDMENT 3

Amend Water Code § 10737.3 as follows:

10737.3. (a)(1) …

.

.

.

(d) This section shall only apply to basins in which a comprehensive adjudication has not been commenced by January 1, 2024.

AMENDMENT 4

Amend Water Code § 10737.9(a) as follows:

10737.9. (a) Upon receiving notice that an adjudication has commenced in its basin, a groundwater sustainability agency shall arrange for invite the department to present an information update at a public meeting to explain the adjudication process and the status of the adjudication to water users within the basin and the public. A recording or summary of the presentation shall be posted to a public interest website hosted by either the groundwater sustainability agency or the watermaster.

SUPPORT

California Climate and Agriculture Network

Community Alliance with Family Farmers

OPPOSITION

African American Farmers of California

Agricultural Council of California

Almond Alliance of California

American Pistachio Growers

Association of California Egg Farmers
California Apple Commission

California Association of Wheat Growers

California Association of Winegrape Growers

California Blueberry Association

California Blueberry Commission

California Chamber of Commerce

California Fresh Fruit Association

California Grain and Feed Association

California League of Food Producers

California Seed Association

California Walnut Commission

California Warehouse Association

Nisei Farmers League

Olive Growers Council of California

Pacific Egg & Poultry Association

United Ag

Western Growers Association

Western Plant Health Association

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 779

Author:(Wilson)

As Amended Ver:May 26, 2023

Majority vote

SUMMARY

Makes various changes relating to the process for groundwater adjudication proceedings, including adding requirements that a court take into account the needs of disadvantaged communities and small farmers when entering a judgement and that groundwater pumpers continue in a groundwater basin subject to an adjudication continue to comply with any applicable groundwater sustainability plan (GSP).

Major Provisions

1. Requires a court to appoint one of the parties involved in a groundwater adjudication to be responsible for forwarding all case management orders, judgments, and interlocutory orders to Department of Water Resources (DWR) within in 10 business days and require DWR to post these documents on its website within 20 business days of receiving them.
2. Encourages the court to invite an expert from DWR or the State Water Resources Control Board (State Water Board) to provide testimony on sustainable groundwater management before the court enters a judgment in a groundwater adjudication.
3. Provides that the court may enter a judgment in a groundwater adjudication if it finds that the water use of small farmers and disadvantaged communities has been considered.
4. Requires the court to find that a judgment in a groundwater adjudication will not substantially impair the ability of a groundwater sustainability agency (GSA), DWR, or the State Water Board to achieve sustainable groundwater management.
5. Defines "disadvantaged community" as one identified by CalEnviro Screen for purposes of this bill.
6. Provides that all monitoring and reporting required by a GSP shall continue while a groundwater adjudication proceeds unless ordered otherwise by the court. Require a GSA and the State Water Board to submit various reports to the court while a groundwater adjudication proceeds.
7. Prohibits a groundwater pumper in a basin subject to a groundwater adjudication from increasing pumping or establishing a claim of prescription during an adjudication proceeding.

COMMENTS

Groundwater is a critical source of supply that meets more than 40% of water demand in an average year and more than 50% of demand during drought years. There are three types of groundwater rights: overlying, appropriative, and prescriptive. The most common of these is the overlying right that entitles "an owner of land overlying groundwater to drill a well and pump groundwater for use of that land, within the basin or watershed" (Littleworth and Garner, 2019). No permit is required to obtain overlying rights and these rights are typically not quantified. Due to this, any landowner may pump as much groundwater as they want so long as the water is put to beneficial use and the use is reasonable (Section 2, Article X of California Constitution). As a result of this lack of regulation, many groundwater basins in California are in a state of overdraft (a condition where average annual pumping exceeds average annual groundwater supply in a basin). To address overdraft and other adverse effects of excessive pumping, SGMA put in place a statewide framework for groundwater management for the first time, but also stipulated that it did not alter surface or groundwater rights (Water Code Section 10720.5).

Prescription. In some cases a groundwater right may be obtained through "prescription," which is somewhat akin to "squatting" only on a water right rather than on real property. Prescription occurs when a person puts water that another has a right for to beneficial use for a period of five years. The use must be "open and notorious", adverse and hostile, and continuous and uninterrupted in order for a prescriptor to ultimately obtain a right to the water being used.

Adjudications. A groundwater adjudication is when parties ask a court to resolve conflicts over groundwater rights. An adjudication is initiated when one or more groundwater pumpers files a civil action asking the court to intervene to determine groundwater rights and/or limit pumping to a basin's "safe yield" (the amount of groundwater pumped that is equal to the average replenishment rate of a groundwater basin). According to the Water Education Foundation, "through adjudication, the courts can assign specific water rights to water users and can compel the cooperation of those who might otherwise refuse to limit their pumping of groundwater. Watermasters are typically appointed by the court to ensure that pumping conforms to the limits defined by the adjudication." 27 basins or sub-basins are adjudicated out of 515 groundwater basins identified by DWR in Bulletin 118. These are predominantly in urban and suburban parts of Southern California.

State law gives every overlying property owner a potential right in an unadjudicated groundwater basin. As such, determining who has groundwater rights that could be affected by an adjudication and the scope of those rights is difficult and can be a lengthy process; adjudications typically take more than a decade to resolve. Identifying and noticing every party that may have a right, completing technical work and sorting through disagreements over this technical work, and determining historic groundwater use which could affect the scope of one's rights are all factors that can contribute to increasing the time and expense of an adjudication. In an attempt to streamline the groundwater adjudication process, the Legislature passed SB 226 (Pavley), Chapter 676, Statutes of 2015, and AB 1390 (Alejo), Chapter 672, Statutes of 2015, in the wake of SGMA's passage. There are at least five pending groundwater adjudications:

1. Santa Clara Valley – Oxnard (No. 4-001.2) and Pleasant Valley (No. 4-006) groundwater basins, commenced in December 2022.
2. Cuyama Valley groundwater basin (No. 3-013), commenced in March 2022.
3. Indian Wells groundwater basin (No. 6-54), commenced in November 2021.
4. Upper Ventura River (No. 4-3.01), Ojai Valley (No. 4-2), Lower Ventura River (No. 4-3.02), and Upper Ojai Valley (No. 4-1) groundwater basins, commenced in November 2019.
5. Las Posas Valley groundwater basin (No. 4-8), commenced in November 2018.

An additional adjudication in the Borrego Valley groundwater subbasin (No. 7-024.1) commenced in July 2020; the court approved a stipulated judgment to settle this adjudication on April 8, 2021 and the case is no longer active.

According to the Author

"[This bill] is an effort to make the groundwater adjudication process more accessible, efficient, and transparent for all water users, especially small farmers, farmers of color, and historically marginalized groundwater users and to ensure the process produces an equitable and science-based allocation of water rights to support sustainable, long-term use by all water users in a basin."

Arguments in Support

The Community Alliance with Family Farmers (CAFF) supports this bill asserting that it will improve the adjudication process to make it more consistent with SGMA and increase access to an adjudication proceeding for small farmers and disadvantaged communities which have not fared well in the adjudication process to date. CAFF points to examples in the Cuyama and Indian Wells basins where large growers initiated an adjudication because they did not agree with the direction the SGMA process was going. Finally, CAFF contends that "the idea of SGMA – that all stakeholders would be represented and their interests considered, and that there would be local community processes to achieve sustainability – will mean nothing if these overdrafted basins end up in court."

Arguments in Opposition

Agricultural Council of California (Ag Council) and a number of agricultural trade associations have taken an "oppose unless amended" position on this bill. Ag Council et al. state "while we respect the author's intention to make these complex proceedings more accessible to affected landowners who may not fully understand the import of participating in an adjudication, the bill in its current form creates onerous procedures that may not be necessary." These groups raise a number of concerns with this bill: a) posting specified court documents online is onerous, ambiguous, and would occur after the fact; b) this bill is premature because the streamlined groundwater adjudication process enacted by the Legislature is in early stages of implementation; c) this bill is duplicative because GSAs already have obligations to manage a basin while an adjudication is pending and courts already have a mechanism to as the State Water Board or DWR to provide technical assistance during an adjudication proceeding (Water Code Section 2000); and d) the requirement for a GSA for a basin going through an adjudication to hold a public meeting explaining the process is problematic because the GSA is most likely a party to the adjudication and, therefore, may use the opportunity "to put a specific slant on the adjudication process." Ag Council et al. do not offer specific amendments to address the concerns they raise.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, this bill has the following fiscal impacts:

1) The State Water Board estimates potential ongoing costs of at least $450,000 (General Fund) for two positions to provide technical assistance and expert testimony during groundwater adjudication proceedings.

2) Costs of an unknown amount, ranging from minor and absorbable to hundreds of thousands of dollars, for DWR (General Fund). DWR's costs will ultimately depend on the number, length, and complexity of the adjudications during which it will need to provide technical assistance or expert testimony.

VOTES

ASM WATER, PARKS, AND WILDLIFE: 11-3-1

YES: Bauer-Kahan, Bennett, Friedman, Hart, Wood, Pellerin, Blanca Rubio, Schiavo, Villapudua, Ward, Weber

NO: Alanis, Megan Dahle, Davies

ABS, ABST OR NV: Mathis

ASM JUDICIARY: 8-3-0

YES: Maienschein, Connolly, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas

NO: Essayli, Dixon, Sanchez

ASM APPROPRIATIONS: 11-3-2

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Weber, Ortega

NO: Megan Dahle, Dixon, Sanchez

ABS, ABST OR NV: Mathis, Robert Rivas

UPDATED

VERSION: May 26, 2023

CONSULTANT: Pablo Garza / W., P., & W. / (916) 319-2096 FN: 0001032

ASSEMBLY THIRD READING

ATR Bill Id:AB 779

Author:(Wilson)

As Introduced Ver:February 13, 2023

Majority vote

SUMMARY

Makes various changes relating to the process for groundwater adjudication proceedings, including adding requirements that a court invite the Department of Water Resources (DWR) or the State Water Resources Control Board (State Water Board) to provide technical assistance in a proceeding and take into account the needs of disadvantaged communities and small farmers when entering a judgement.

Major Provisions

1. Requires the defendant and plaintiff in an adjudication to forward relevant documents to DWR once the court makes a decision. DWR shall post these documents on its internet website in the interest of transparency and accessibility. Provides that this bill does not apply to any documents that have been sealed by the court.
2. Requires a court presiding over an adjudication to invite a representative from either the State Water Board or DWR to provide technical assistance or expert testimony on the amount of water in the basin, equitable and sustainable pumping allocations for the basin, and sustainable groundwater and management best practices and recommendations.
3. Requires the court, when entering a judgement in a comprehensive adjudication, to take into account the needs of small farmers and disadvantaged communities.
4. Defines "disadvantaged community" as communities with an average income less than 80 percent of the state median income and "small farmers" as with between $10,000 and $400,000 in gross farm sales for purposes of this bill.
5. Requires a groundwater sustainability agency (GSA) with jurisdiction over a basin subject to an adjudication to submit a comprehensive monitoring plan to the court to be followed during the adjudication proceeding and to report monitoring data to the court and DWR during the duration of the adjudication proceeding.
6. Prohibits groundwater users involved in an adjudication to increase groundwater pumping beyond the level permitted in the subject basin's groundwater sustainability plan (GSP), to increase pumping without permission from the court, or to use new or increased pumping to establish a claim of prescription throughout the duration of the proceeding.

COMMENTS

Groundwater is a critical source of supply that meets more than 40% of water demand in an average year and more than 50% of demand during drought years. There are three types of groundwater rights: overlying, appropriative, and prescriptive. The most common of these is the overlying right that entitles "an owner of land overlying groundwater to drill a well and pump groundwater for use of that land, within the basin or watershed" (Littleworth and Garner, 2019). No permit is required to obtain overlying rights and these rights are typically not quantified. Due to this, any landowner may pump as much groundwater as they want so long as the water is put to beneficial use and the use is reasonable (Section 2, Article X of California Constitution). As a result of this lack of regulation, many groundwater basins in California are in a state of overdraft (a condition where average annual pumping exceeds average annual groundwater supply in a basin). To address overdraft and other adverse effects of excessive pumping, SGMA put in place a statewide framework for groundwater management for the first time, but also stipulated that it did not alter surface or groundwater rights (Water Code Section 10720.5).

Prescription. In some cases a groundwater right may be obtained through "prescription," which is somewhat akin to "squatting" only on a water right rather than on real property. Prescription occurs when a person puts water that another has a right for to beneficial use for a period of five years. The use must be "open and notorious", adverse and hostile, and continuous and uninterrupted in order for a prescriptor to ultimately obtain a right to the water being used.

Adjudications. A groundwater adjudication is when parties ask a court to resolve conflicts over groundwater rights. An adjudication is initiated when one or more groundwater pumpers files a civil action asking the court to intervene to determine groundwater rights and/or limit pumping to a basin's "safe yield" (the amount of groundwater pumped that is equal to the average replenishment rate of a groundwater basin). According to the Water Education Foundation, "through adjudication, the courts can assign specific water rights to water users and can compel the cooperation of those who might otherwise refuse to limit their pumping of groundwater. Watermasters are typically appointed by the court to ensure that pumping conforms to the limits defined by the adjudication." 27 basins or sub-basins are adjudicated out of 515 groundwater basins identified by DWR in Bulletin 118. These are predominantly in urban and suburban parts of Southern California.

State law gives every overlying property owner a potential right in an unadjudicated groundwater basin. As such, determining who has groundwater rights that could be affected by an adjudication and the scope of those rights is difficult and can be a lengthy process; adjudications typically take more than a decade to resolve. Identifying and noticing every party that may have a right, completing technical work and sorting through disagreements over this technical work, and determining historic groundwater use which could affect the scope of one's rights are all factors that can contribute to increasing the time and expense of an adjudication. In an attempt to streamline the groundwater adjudication process, the Legislature passed SB 226 (Pavley), Chapter 676, Statutes of 2015, and AB 1390 (Alejo), Chapter 672, Statutes of 2015, in the wake of SGMA's passage. There are at least five pending groundwater adjudications:

1. Santa Clara Valley – Oxnard (No. 4-001.2) and Pleasant Valley (No. 4-006) groundwater basins, commenced in December 2022.
2. Cuyama Valley groundwater basin (No. 3-013), commenced in March 2022.
3. Indian Wells groundwater basin (No. 6-54), commenced in November 2021.
4. Upper Ventura River (No. 4-3.01), Ojai Valley (No. 4-2), Lower Ventura River (No. 4-3.02), and Upper Ojai Valley (No. 4-1) groundwater basins, commenced in November 2019.
5. Las Posas Valley groundwater basin (No. 4-8), commenced in November 2018.

An additional adjudication in the Borrego Valley groundwater subbasin (No. 7-024.1) commenced in July 2020; the court approved a stipulated judgment to settle this adjudication on April 8, 2021 and the case is no longer active.

According to the Author

"[This bill] is an effort to make the groundwater adjudication process more accessible, efficient, and transparent for all water users, especially small farmers, farmers of color, and historically marginalized groundwater users and to ensure the process produces an equitable and science-based allocation of water rights to support sustainable, long-term use by all water users in a basin."

Arguments in Support

The Community Alliance with Family Farmers (CAFF) supports this bill asserting that it will improve the adjudication process to make it more consistent with SGMA and increase access to an adjudication proceeding for small farmers and disadvantaged communities which have not fared well in the adjudication process to date. CAFF points to examples in the Cuyama and Indian Wells basins where large growers initiated an adjudication because they did not agree with the direction the SGMA process was going. Finally, CAFF contends that "the idea of SGMA – that all stakeholders would be represented and their interests considered, and that there would be local community processes to achieve sustainability – will mean nothing if these overdrafted basins end up in court."

Arguments in Opposition

Agricultural Council of California (Ag Council) and a number of agricultural trade associations have taken an "oppose unless amended" position on this bill. Ag Council et al. state "while we respect the author's intention to make these complex proceedings more accessible to affected landowners who may not fully understand the import of participating in an adjudication, the bill in its current form creates onerous procedures that may not be necessary." These groups raise a number of concerns with this bill: a) posting specified court documents online is onerous, ambiguous, and would occur after the fact; b) this bill is premature because the streamlined groundwater adjudication process enacted by the Legislature is in early stages of implementation; c) this bill is duplicative because GSAs already have obligations to manage a basin while an adjudication is pending and courts already have a mechanism to as the State Water Board or DWR to provide technical assistance during an adjudication proceeding (Water Code § 2000); and d) the requirement for a GSA for a basin going through an adjudication to hold a public meeting explaining the process is problematic because the GSA is most likely a party to the adjudication and, therefore, may use the opportunity "to put a specific slant on the adjudication process." Ag Council et al. do not offer specific amendments to address the concerns they raise.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, this bill has the following fiscal impacts:

1) The State Water Board estimates ongoing costs of at least $450,000 (General Fund) for two positions to provide technical assistance and expert testimony during groundwater adjudication proceedings.

2) Costs of an unknown amount, ranging from minor and absorbable to hundreds of thousands of dollars, for DWR (General Fund). The department's costs will ultimately depend on the number, length, and complexity of the adjudications during which it will need to provide technical assistance or expert testimony.

VOTES

ASM WATER, PARKS, AND WILDLIFE: 11-3-1

YES: Bauer-Kahan, Bennett, Friedman, Hart, Wood, Pellerin, Blanca Rubio, Schiavo, Villapudua, Ward, Weber

NO: Alanis, Megan Dahle, Davies

ABS, ABST OR NV: Mathis

ASM JUDICIARY: 8-3-0

YES: Maienschein, Connolly, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas

NO: Essayli, Dixon, Sanchez

ASM APPROPRIATIONS: 11-3-2

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Weber, Ortega

NO: Megan Dahle, Dixon, Sanchez

ABS, ABST OR NV: Mathis, Robert Rivas

UPDATED

VERSION: February 13, 2023

CONSULTANT: Pablo Garza / W., P., & W. / (916) 319-2096 FN: 0000744

Date of Hearing: May 3, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 779

Author:(Wilson) – As Introduced Ver:February 13, 2023

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill makes various changes to the process for groundwater adjudication proceedings, including adding requirements that a court invite the Department of Water Resources (DWR) or the State Water Resources Control Board (State Water Board) to provide technical assistance in a proceeding and take into account the needs of disadvantaged communities and small farmers when entering a judgement.

Specifically, this bill:

1. Requires the defendant and plaintiff in an adjudication to forward relevant documents, except those that have been sealed by the court, to DWR once the court makes a decision, and requires DWR to post these documents on its website.
2. Requires a court presiding over an adjudication to invite a representative from the State Water Board or DWR to provide technical assistance or expert testimony on the amount of water in the basin subject to adjudication, equitable and sustainable pumping allocations for the basin, and sustainable groundwater management best practices and recommendations.
3. Requires the court, when entering a judgement in a comprehensive adjudication, to take into account the needs of small farmers and disadvantaged communities.
4. Requires a groundwater sustainability agency (GSA) with jurisdiction over a basin subject to an adjudication to submit a comprehensive monitoring plan to the court to be followed during the adjudication proceeding and to report monitoring data to the court and DWR during the duration of the adjudication proceeding.
5. Prohibits groundwater users involved in an adjudication from increasing groundwater pumping beyond the level permitted in the subject basin’s groundwater sustainability plan (GSP), from increasing pumping without permission from the court, or from using new or increased pumping to establish a claim of prescription throughout the duration of the proceeding.
6. Requires a GSA that has jurisdiction over a basin that has begun an adjudication to hold a public meeting to explain the adjudication process to groundwater users and the public, and permits such a GSA to invite a representative from the State Water Board or DWR to help explain the adjudication process at the public meeting.

FISCAL EFFECT:

1) The State Water Board estimates ongoing costs of at least $450,000 (General Fund) for two positions to provide technical assistance and expert testimony during groundwater adjudication proceedings.

2) Costs of an unknown amount, ranging from minor and absorbable to hundreds of thousands of dollars, for DWR (General Fund). The department’s costs will ultimately depend on the number, length, and complexity of the adjudications during which it will need to provide technical assistance or expert testimony.

COMMENTS:

1) Purpose. According to the author:

AB 779 is an effort to make the groundwater adjudication process more accessible, efficient, and transparent for all water users, especially small farmers, farmers of color, and historically marginalized groundwater users and to ensure the process produces an equitable and science-based allocation of water rights to support sustainable, long-term use by all water users in a basin.

2) Background. Sustainable Groundwater Management Act (SGMA). According to DWR, groundwater is a critical source of water for both farms and cities in California, supplying 40% of water in a typical year and as much as 60% in drought years. About 80% of Californians use groundwater for drinking or other household uses. Signed into law in 2014, after nearly a century of mismanagement of the state’s groundwater resources, SGMA established a statewide framework to help protect groundwater resources over the long term. SGMA requires local agencies to form GSAs for medium- and high-priority basins as designated by DWR. A GSA, which is made up of one or more local agencies overlying a groundwater basin, is required to develop and implement a groundwater sustainability plan (GSP). GSPs provide a roadmap for how groundwater basins will reach long-term sustainability without causing undesirable results, namely significant groundwater level declines, groundwater storage reductions, seawater intrusion, water quality degradation, land subsidence, and surface water depletions.

Groundwater Adjudications. A groundwater adjudication is when parties ask a court to resolve conflicts over groundwater rights. An adjudication is initiated when one or more groundwater pumpers files a civil action asking the court to intervene to determine groundwater rights or limit pumping to a basin’s “safe yield” (the amount of groundwater pumped that is equal to the average replenishment rate of a groundwater basin). According to the Water Education Foundation:

Through adjudication, the courts can assign specific water rights to water users and can compel the cooperation of those who might otherwise refuse to limit their pumping of groundwater. Watermasters are typically appointed by the court to ensure that pumping conforms to the limits defined by the adjudication.

According to the Water, Parks, and Wildlife Committee analysis of this bill, there are five pending groundwater adjudications, and out of 515 groundwater basins identified by DWR, 27 basins or sub-basins are adjudicated. These are predominantly in urban and suburban parts of Southern California. State law gives every overlying property owner a potential right in an unadjudicated groundwater basin. For this reason, determining who has groundwater rights that could be affected by an adjudication and the scope of those rights is difficult and can be a lengthy process; adjudications typically take more than a decade to resolve. Identifying and noticing every party that may have a right, completing technical work and sorting through disagreements over this technical work, and determining historic groundwater use which could affect the scope of one's rights are all factors that can contribute to increasing the time and expense of an adjudication.

Author’s Intent. The author argues that large interests, in particular wealthier business owners, are able to reach agreement between themselves, present the agreement to a judge, and frequently get an adjudication plan approved even if underrepresented groups were not given an adequate seat at the table. The author intends this bill to level the playing field between litigants, increase the transparency of the groundwater adjudication process, and adopt procedural checks to help the court ensure all parties are properly represented.

Support, Opposition, and Concerns. Writing in support, the Community Alliance with Family Farmers (CAFF) notes this bill’s attempt to bring the state into court proceedings and to require the court to consider the needs of small farmers and disadvantaged communities will inject more of SGMA into the process:

As we have seen in Cuyama, where the largest agricultural pumpers—Grimmway and Bolthouse, both now owned by hedge funds— decided they could get a better deal from the court than from the GSA process and forced everyone into court, the costs of legal representation are too high for the small pumpers. Similarly, a large pistachio grower from Kern County filed for adjudication in Indian Wells when he decided the SGMA process wasn’t going his way.

Writing in opposition, a coalition of agricultural, water, and business organizations contends that, while they respect the author’s intention to make complex proceedings more accessible to affected landowners who may not fully understand the import of participating in an adjudication, the bill, in its current form, creates many duplicative and onerous procedures that may not be necessary, given recent legislation to streamline groundwater adjudications that is just now being implemented.

A coalition of environmental justice organizations, in a support-if-amended position, contend that, while this bill makes important process improvements to adjudications, they are concerned about limiting DWR’s and the State Board’s ability to provide technical assistance to just water rights and sustainable management criteria. They note the State Water Board has broader interests, including waste and unreasonable use, the public trust doctrine, fulfillment of the Human Right to Water, and the Safe Drinking Water Act.

Analysis Prepared by: Nikita Koraddi / APPR. / (916) 319-2081

Date of Hearing: April 11, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

ABPCA Bill Id:AB 779

Author:(Wilson) – As Introduced Ver:February 13, 2023

SUBJECT: Groundwater: adjudication

KEY ISSUES:

1. Should specified pleadings and other documents related to a groundwater adjudication be posted on the WEBSITE OF THE department of water resources?
2. Should the court be required to invite the department of water resources or state water resources control board to participate in an adjudication?
3. Should a court, when entering a judgment in a groundwater adjudication, be required to take into account the needs of small farmers and disadvantaged communities?

SYNOPSIS

California’s boom and bust precipitation cycles consistently force the state to significantly rely on groundwater. Indeed, estimates suggest that during droughts, half of the state’s water may come from underground aquifers. However, as a result of the state’s historic inability to regulate groundwater, many of the state’s groundwater basins are overdrafted and unable to maintain supplies. As a result, groundwater users frequently find themselves in legal conflict. The manner by which a groundwater conflict is decided is through a court adjudication. The author of this measure notes that in several recent adjudications, large water users worked together to push through judgments that harmed small users who lacked the same resources to fight in court.

Seeking to better level the field between litigants in a groundwater adjudication, this measure makes several procedural reforms to the adjudication process. Of note to this Committee, the bill requires disclosures of pleadings to the Department of Water Resources, which is then tasked with posting the information online. Additionally, the bill requires courts to invite state water regulators to participate in adjudications. This measure also requires courts to specifically consider the impact of judgments on small farmers and disadvantaged communities. Finally, this bill provides new duties for local groundwater sustainability agencies.

This measure is supported by the Community Alliance with Family Farmers who highlight the need to protect small farmers who may not have the legal or financial means to adequately advocate for themselves in groundwater adjudications. Several other water organizations contend they would support this bill if it went even further, an unlikely proposition in light of the opposition. The opposition to this measure includes a coalition of agricultural organizations supported by the California Chamber of Commerce. The opposition contends that the bill is burdensome, may not actually achieve its goals, and will only further prolong the lengthy adjudication process. Nonetheless, the opposition concedes the existing process is difficult for smaller farmers and disadvantaged communities and has agreed to participate in a stakeholder process being convened by the author. The Committee will monitor progress of the stakeholder discussions with the hope they can lead to a resolution as all sides appear willing to tackle areas of shared concern. This measure was previously heard and approved by the Committee on Water, Parks, and Wildlife by a vote of 11 to 3.

SUMMARY: Adopts new procedural requirements for groundwater adjudications. Specifically, this bill:

1. Requires the plaintiff and defendant in a groundwater adjudication to forward all relevant pleading and briefing materials to the Department of Water Resources, as specified.
2. Requires, upon receipt of the information outlined in 1), the Department of Water Resources to post the information on its website.
3. Requires the court to invite a representative from the Department of Water Resources or the State Water Resources Control Board to provide technical assistance or expert testimony on the amount of water in the basin subject to adjudication, equitable and sustainable pumping allocations for the basin, and sustainable groundwater management best practices and recommendations.
4. Requires a court to take into account the needs of small farmers and disadvantaged communities when entering a judgment on a groundwater adjudication.
5. Defines the following for the purpose of the requirements of 4):
   1. “Disadvantaged communities” means communities with an average income less than 80 percent of state median income; and
   2. “Small farmers” means farmers with between ten thousand dollars ($10,000) and four hundred thousand dollars ($400,000) in gross farm sales, as referenced in the Department of Food and Agriculture’s California Underserved and Small Producers Program.
6. Requires a groundwater sustainability agency with jurisdiction over a basin subject to adjudication proceeding to submit a comprehensive monitoring plan to the court to be followed during the adjudication proceeding.
7. Requires a groundwater sustainability agency with jurisdiction over a basin subject to an adjudication proceeding to report monitoring data regarding the subject basin to the court and the department during the duration of the proceeding.
8. Prohibits groundwater users involved in an adjudication from increasing any pumping beyond the level permitted in their basin’s groundwater sustainability plan throughout the duration of the proceeding and shall not increase any pumping without permission from the court, or use new or increased pumping to establish a claim of prescription during the proceeding.
9. Requires, upon the receipt of a notice that an adjudication has commenced, a groundwater sustainability agency to hold a public meeting to explain the adjudication process to water users within its basin and the public.
10. Permits a groundwater sustainability agency to invite the State Water Resources Control Board or the Department of Water Resources to send a representative to the meeting in order to help explain the adjudication process.

EXISTING LAW:

1. Establishes the Sustainable Groundwater Management Act with the goal of providing for the sustainable management of groundwater basins, enhancing local management of groundwater consistent with rights to use or store groundwater, providing local groundwater agencies with the authority and the technical and financial assistance necessary to sustainably manage groundwater, and establishing minimum standards for sustainable groundwater management. (Water Code Section 10720 et seq.)
2. Requires, pursuant to the Sustainable Groundwater Management Act, all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources to develop and be managed under a groundwater sustainability plan or coordinated groundwater sustainability plans. (Water Code Section 10720.7.)
3. Authorizes the creation of local groundwater sustainability agencies and requires the agencies to consider the interests of all beneficial uses and users of groundwater, as well as those responsible for implementing groundwater sustainability plans. (Water Code Section 10723.2.)
4. Establishes the procedures for a court to use when adjudicating a groundwater basin. (Code of Civil Procedure Section 830 et seq.)
5. Authorizes any of the following parties to intervene in a groundwater adjudication:
   1. A groundwater sustainability agency for the basin or a portion of the basin;
   2. A city, county, or city and county that overlies the basin or a portion of the basin;
   3. The state; and
   4. 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. (Code of Civil Procedure Sections 837 & 837.5.)
6. Provides that a court may enter a judgment in a comprehensive groundwater adjudication if the court finds that the judgment meets all of the following criteria:
   1. It is consistent with Section 2 of Article X of the California Constitution;
   2. It is consistent with the water right priorities of all non-stipulating parties and any persons who have claims that are exempted in the basin; and
   3. It treats all objecting parties and any persons who have claims that are exempted as compared to the stipulating parties. (Code of Civil Procedure Section 850 (a).)
7. Provides that if a party or group of parties submits a proposed stipulated judgment that is supported by more than 50 percent of all parties who are groundwater extractors in the basin or use the basin for groundwater storage and is supported by groundwater extractors responsible for at least 75 percent of the groundwater extracted in the basin during the five calendar years before the filing of the complaint, the court may adopt the proposed stipulated judgment, as applied to the stipulating parties, if the proposed stipulated judgment meets the criteria described in 6). (Code of Civil Procedure Section 850 (b).)
8. Requires a party objecting to a proposed stipulated judgment to demonstrate, by a preponderance of evidence, that the proposed stipulated judgment does not satisfy one or more criteria described in 6) or that it substantially violates the water rights of the objecting party, and that if the objecting party is unable to make this showing, the court may impose the proposed stipulated judgment on the objecting party. (Ibid.)
9. Permits the State Water Board to serve as a referee in a court case involving a water rights dispute upon the request of a state or federal court. (Water Code Section 2000 et seq.)
10. Provides that no water is to be available for appropriation by storage in, or by direct diversion from, any of the components of the California Wild and Scenic Rivers System, as such system exists on January 1, 1981, where such appropriation is for export of water into another major hydrologic basin of the State, as defined by the Department of Water Resources, unless such export is expressly authorized prior to such appropriation by an initiative statute approved by the electors, or the Legislature, by statute passed in each house by roll call vote entered in the journal, two-thirds of the membership concurring. (Cal. Const. art. X Section 2.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Groundwater adjudications can be complex, lengthy, expensive, and opaque undertakings that frequently involve numerous scientific studies and expert witnesses. However, because these adjudications are critical to allocating precious water rights in California’s groundwater basins, ensuring that all users of a groundwater basin are properly represented and protected is critical to ensuring the proper allocation of such a scarce resource.

The author of this bill argues that large interests, in particular wealthier business owners, are able to reach agreement between themselves, present the agreement to a judge, and frequently get an adjudication plan approved even if underrepresented groups were not given an adequate seat at the table. This bill, accordingly, seeks to increase the transparency of the groundwater adjudication process and adopt procedural checks that help the court ensure all parties are properly represented. In support of this measure, the author states:

AB 779 is an effort to make the groundwater adjudication process more accessible, efficient, and transparent for all water users, especially small farmers, farmers of color, and historically marginalized groundwater users and to ensure the process produces an equitable and science-based allocation of water rights to support sustainable, long-term use by all water users in a basin. The bill has three core provisions.

First, the bill would require pleading and briefing materials to be posted to a public website and require that groundwater sustainability agencies (GSAs) hold public meetings to explain the adjudication process to users in the basin. This would improve transparency and make the adjudication proceedings more accessible to those who are unable to spend the time and resources to attend in person or hire attorneys.

Second, the bill would require the court to invite a representative from the Department of Water Resources or the State Water Resources Control Board to provide technical assistance or expert testimony during the adjudication process. This would ensure that groundwater allocations determined through adjudications are based on science and align with the goals of SGMA. It would also provide an objective expert to weigh in on technical aspects of the adjudication process.

Finally, the bill requires parties involved in adjudications to report monitoring data to the court on a biannual basis. The court would enforce interim management, monitoring, and reporting provisions, as set forth in a groundwater sustainability plan, comprehensive management plan (CMP), or court order. This would address the “rush to the pumphouse” effect by increasing accountability; parties in an adjudication would be required to comply with pumping limits and report groundwater pumping, preventing users from ramping up pumping ahead of a rights determination.

A brief background on groundwater sustainability and adjudications. Given California’s propensity to swing between crippling drought and hazardously excessive rainfall, groundwater is one of the most important water sources in the state. During drought conditions, some estimates suggest as much as half of the state’s water supply comes from groundwater. During wet years, groundwater recharged basins are becoming an increasingly helpful tool to manage excess runoff. The right to access groundwater is typically entwined with the rights afforded to the overlying landowners without the need to obtain permits or other legal documents granting access to the water. Accordingly, and as codified in the Constitution, for much of California’s history, access to groundwater has been a free-for-all. As a result of the lack of oversight of groundwater rights, many of the state’s groundwater basins became overdrafted, essentially a condition where average annual pumping exceeds average annual recharge from rainwater.

To reign in the unregulated nature of groundwater, and address overdrafted basins, California has long provided a process for adjudicating water rights. In an adjudication every groundwater user within a groundwater basin is entitled to go to court and enforce their rights. Should a basin be adjudicated, and a user failed to adequately argue for their water rights, they may be facing a situation in which they will have legally lost access to some of their water. Because groundwater involves complex science related to underground geology, and because state law confers every overlying property owner a potential right in an unadjudicated groundwater basin, these proceedings can be lengthy and expensive. Frequently, special masters or other referees are brought in by the court to handle the expert testimony and determine the scope of interests that may be impacted by the adjudication to ensure all rights are properly represented. To assist the courts, existing law also enables the court to seek technical input from the state’s water regulators, the Department of Water Resources, and the State Water Resources Control Board, although nothing in the law requires this input or that the consultation occur early in the adjudication process. In an attempt to streamline this process the Legislature enacted SB 226 (Pavley), Chap. 676, Stats. 2015, and AB 1390 (Alejo), Chap.672, Stats. 2015. However, all of the stakeholders involved in this bill note that adjudications still are complex and lengthy.

Although not the focus of this measure, the Legislature also sought to stop groundwater overdraft by enacting the Sustainable Groundwater Management Act (AB 1739 (Dickinson) Chap. 347, Stats. 2014; SB 1186 (Pavley) Chap. 346, Stats. 2014; and SB 1319 (Pavley) Chap. 348, Stats. 2014) which adopted a statewide legal framework for the creation and adoption of local groundwater management plans. While these plans are slowly coming into place, they do not directly impact water rights. While it is hoped that the plans eventually lessen the need for adjudications, only groundwater adjudication can specifically divide the legal right to water within an overdrafted groundwater basin.

This bill. Seeking to ensure that the largest number of groundwater users possible can participate and be fairly represented, in an adjudication, this bill makes several modifications to the groundwater adjudication process. First, this measure requires pleadings and other relevant to be transmitted and posted to the Department of Water Resources’ website. Secondly, this bill requires the court to invite the Department of Water Resources or State Water Resources Control Board to weigh in on the adjudication. The bill also requires the court to consider the need of small farmers and disadvantaged communities when evaluating any final judgment in an adjudication. This bill imposes several new requirements on a groundwater sustainability agency with jurisdiction over a basin designed to protect the water rights while the proceeding is occurring. Finally, this measure adopts a new requirement for a groundwater sustainability agency with jurisdiction over a basin to hold a public meeting upon the start of an adjudication in order to inform the public of their rights and about the legal process.

By mandating specific activities on the court, this bill may implicate issues related to the separation of powers. As noted, this bill mandates several actions be taken by litigants, courts, and local agencies. Of note, this bill mandates that the court invite state agencies to participate in an adjudication. By directly dictating the court’s actions, this bill may have issues related to the separation of powers. Indeed, in addition to the formal opposition, the Judicial Council appears to have concerns over these provisions as they directly dictate how a judicial officer is to handle their proceedings. The author’s office notes that these provisions are designed to ensure state-level regulators can step in and make sure larger interests within a groundwater basin cannot bully smaller interests. The author’s concern is indeed meritorious, and the state may be able to play a critical role in balancing the interests involved in an adjudication. However, the concerns of the opposition are also valid. The author notes to this Committee that they are convening a stakeholder process in the coming weeks to address concerns raised by several stakeholders and that this issue will be subject to that process. Given the critical underlying need to ensure public access and fairness in the groundwater adjudication process, at this time, this Committee sees no need to mandate any changes to the language and will continue to engage with stakeholders during the legislative process to ensure that this language is finessed to strike the proper balance between protecting groundwater users and maintaining proper separation of powers.

This measure would require the court to focus on the needs of smaller actors in groundwater adjudications. In furtherance of this bill’s goal of providing greater fairness in groundwater adjudications, this bill explicitly requires the court to take into account the needs of small farmers and disadvantaged communities when entering a judgment on a groundwater adjudication. While the goal of this language is laudable and clear, the Judicial Council noted to this Committee that the term “take into account” is not a legal term of art and is somewhat unclear. Indeed, the author may wish to consider working with the Judicial Council to ensure that judges are provided sufficient specificity in order to carry out this legal requirement. As noted, given the creation of the stakeholder working group, this language can be further refined to ensure that the legal language is sufficiently clear to protect vulnerable parties in groundwater adjudications.

Ongoing stakeholder discussions will likely refine several additional portions of this bill. In addition to the above described provision, stakeholders have raised concerns with several other aspects of the bill. A coalition of agricultural business organizations note that the document posting provisions of this bill may be expensive and may not serve the desired intent of better informing the public. Indeed, it is unclear if the Department of Water Resources is properly equipped to manage a significant document retention program. Accordingly, as the stakeholder process begins the author may wish to consider if another agency or service would be a better fit for disclosing document to the public. While not wholly within the jurisdiction of this Committee, the stakeholders also raise concerns about the role of the groundwater sustainability agency. Given that the agency would likely also become a litigant these concerns are not unfounded. However, the stakeholders who have contacted the Committee appear committed to ongoing discussions of these issues and thus the Committee sees no need to preclude those important discussions from occurring in order to ensure all Californians have a meaningful opportunity to participate in groundwater adjudications.

ARGUMENTS IN SUPPORT: This measure is supported by the Community Alliance with Family Farmers. In support of the bill they write:

The small farms and rural residents that CAFF represents are at such a disadvantage in the adjudication proceedings that it is unfortunate that this legal proceeding is an option to circumvent the SGMA process. As we have seen in Cuyama, where the largest agricultural pumpers—Grimmway and Bolthouse, both now owned by hedge funds—decided they could get a better deal from the court than from the GSA process and forced everyone into court, the costs of legal representation are too high for the small pumpers. Similarly, a large pistachio grower from Kern County filed for adjudication in Indian Wells when he decided the SGMA process wasn’t going his way.

Unless the Legislature intervenes and limits the ability of the largest groundwater pumpers to circumvent the GSAs by going to court, we will see this scenario play out over and over.

As separate coalition of organizations, including Clean Water Action, have written noting their support for the bill if amended. These groups seek additional state input on a broader scope of issues than currently contemplated by this bill.

ARGUMENTS IN OPPOSITION: As noted this bill is opposed by a coalition of agricultural organizations under the umbrella of the California Chamber of Commerce. In opposition the coalition notes:

AB 779 would require the plaintiff and defendant in an adjudication to provide relevant pleadings and briefing materials, once a decision as been rendered by the court, to the Department of Water Resources

(DWR) for posting online. We understand that this requirement aims to make otherwise typically publicly available court documents more accessible to the public. We do not disagree with this intention, but question whether this procedure is the best way to achieve this goal. This requirement is quite similar to preparing a record for an appeal—all filings and transcripts of hearings are collected, organized, and submitted to the appellate court. This is a huge undertaking for any party, especially considering that adjudications can and do include thousands of defendants. Furthermore, it would be difficult to determine what pleading would be considered relevant, which would result in simply every pleading being forwarded.

Moreover, the fact that court documents are not easily accessible online is not unique to groundwater adjudications. Each superior court has its own procedures for accessing court filings that apply to essentially all civil litigation, regardless of the substance of the case. In addition, if the goal is to provide information to parties who may be affected by the adjudication while there is still time to participate, posting after the judgment is entered does not achieve this goal.

Thus, while well-intentioned, this provision will not achieve the desired goals, but will impose greater burdens on litigants once an adjudication has completed.

REGISTERED SUPPORT / OPPOSITION:

Support

Community Alliance with Family Farmers

Opposition

Desert Water Agency
Elsinore Valley Municipal Water District
Valley Ag Water Coalition

Opposition (unless amended)

African American Farmers of California
Agricultural Council of California
California Apple Commission
California Blueberry Association
California Blueberry Commission
California Chamber of Commerce
California Farm Bureau Federation
California Fresh Fruit Association
California League of Food Producers
California Walnut Commission
Nisei Farmers League
Olive Growers Council of California
United Ag
Western Growers Association
Western Plant Health Association

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334

Date of Hearing: March 28, 2023

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Rebecca Bauer-Kahan, Chair

ABPCA Bill Id:AB 779 (

Author:Wilson) – As Introduced Ver:February 13, 2023

SUBJECT: Groundwater: adjudication

SUMMARY: Makes various changes relating to the process for groundwater adjudication proceedings, including adding requirements that a court invite the Department of Water Resources (DWR) or the State Water Resources Control Board (State Water Board) to provide technical assistance in a proceeding and take into account the needs of disadvantaged communities and small farmers when entering a judgement. Specifically, this bill:

1. Requires the defendant and plaintiff in an adjudication to forward relevant documents to DWR once the court makes a decision. DWR shall post these documents on its internet website in the interest of transparency and accessibility. Provides that this bill does not apply to any documents that have been sealed by the court.
2. Requires a court presiding over an adjudication to invite a representative from either the State Water Board or DWR to provide technical assistance or expert testimony on the amount of water in the basin, equitable and sustainable pumping allocations for the basin, and sustainable groundwater and management best practices and recommendations.
3. Requires the court, when entering a judgement in a comprehensive adjudication, to take into account the needs of small farmers and disadvantaged communities.
4. Defines “disadvantaged community” as communities with an average income less than 80 percent of the state median income and “small farmers” as with between $10,000 and $400,000 in gross farm sales for purposes of this bill.
5. Requires a groundwater sustainability agency (GSA) with jurisdiction over a basin subject to an adjudication to submit a comprehensive monitoring plan to the court to be followed during the adjudication proceeding and to report monitoring data to the court and DWR during the duration of the adjudication proceeding.
6. Prohibits groundwater users involved in an adjudication to increase groundwater pumping beyond the level permitted in the subject basin’s groundwater sustainability plan (GSP), to increase pumping without permission from the court, or to use new or increased pumping to establish a claim of prescription throughout the duration of the proceeding.
7. Requires a GSA that has jurisdiction over a basin that has begun an adjudication to hold a public meeting to explain the adjudication process to groundwater users and the public. Permits such a GSA to invite a representative from the State Water Board or DWR to help explain the adjudication process at the public meeting.

EXISTING LAW:

1. Enacts the Sustainable Groundwater Management Act (SGMA) that requires local agencies to sustainably manage groundwater in high- or medium-priority basins by 2040. Defines sustainable management of groundwater as the avoidance of the following six “undesirable results:” (a) chronic lowering of groundwater levels; (b) reduction of groundwater storage; (c) seawater intrusion; (d) degraded water quality; (e) land subsidence; and (f) depletions of interconnected surface water (Water Code § 10720 et seq.).
2. Requires local agencies in high- and medium-priority basins to form a GSA by June 30, 2017, unless statute designates an “exclusive local agency” for a given area. Provides that a county will be the default GSA for any area in a high- or medium- priority basin not managed by a GSA unless said county notifies DWR that it will not be the GSA for an uncovered portion of a high- or medium-priority basin (Water Code §§ 10723 – 10724).
3. Requires critically overdrafted groundwater basins to be managed under a GSP by January 31, 2020 and high- or medium-priority groundwater basins to be managed under a GSP by January 31, 2022 (Water Code § 10720.7).
4. Exempts 26 groundwater basins or sub-basins that are subject to existing adjudications from the requirements of SGMA; requires adjudicated areas to report groundwater elevation and other groundwater data to DWR annually (Water Code § 10720.8).
5. Outlines process and scope for a comprehensive adjudication of a groundwater basin (Code of Civil Procedure § 830 et seq.).
6. Permits a party or group of parties proposing a stipulated judgement under the procedures outlined in #3, above, to also submit the proposal to DWR for evaluation and assessment as an alternative to a groundwater sustainability plan (GSP) [Water Code § 10734.4(b)].
7. Permits the State Water Board to serve as a referee in a court case involving a water rights dispute upon the request of a state or federal court (Water Code § 2000 et seq.).

FISCAL EFFECT: Unknown. This bill is keyed fiscal.

COMMENTS:

1. Purpose of this bill. According to the author, “[this bill] is an effort to make the groundwater adjudication process more accessible, efficient, and transparent for all water users, especially small farmers, farmers of color, and historically marginalized groundwater users and to ensure the process produces an equitable and science-based allocation of water rights to support sustainable, long-term use by all water users in a basin.”
2. Background. Groundwater is a critical source of supply that meets more than 40 percent of water demand in an average year and more than 50 percent of demand during drought years. There are three types of groundwater rights: overlying, appropriative, and prescriptive. The most common of these is the overlying right that entitles “an owner of land overlying groundwater to drill a well and pump groundwater for use of that land, within the basin or watershed” (Littleworth and Garner, 2019). No permit is required to obtain overlying rights and these rights are typically not quantified. Due to this, any landowner may pump as much groundwater as they want so long as the water is put to beneficial use and the use is reasonable (Section 2, Article X of California Constitution). As a result of this lack of regulation, many groundwater basins in California are in a state of overdraft (a condition where average annual pumping exceeds average annual groundwater supply in a basin). To address overdraft and other adverse effects of excessive pumping, SGMA put in place a statewide framework for groundwater management for the first time, but also stipulated that it did not alter surface or groundwater rights (Water Code § 10720.5).
   
   Prescription. In some cases a groundwater right may be obtained through “prescription,” which is somewhat akin to “squatting” only on a water right rather than on real property. Prescription occurs when a person puts water that another has a right for to beneficial use for a period of five years. The use must be “open and notorious”, adverse and hostile, and continuous and uninterrupted in order for a prescriptor to ultimately obtain a right to the water being used.
   
   Adjudications. A groundwater adjudication is when parties ask a court to resolve conflicts over groundwater rights. An adjudication is initiated when one or more groundwater pumpers files a civil action asking the court to intervene to determine groundwater rights and/or limit pumping to a basin’s “safe yield” (the amount of groundwater pumped that is equal to the average replenishment rate of a groundwater basin). According to the Water Education Foundation, “through adjudication, the courts can assign specific water rights to water users and can compel the cooperation of those who might otherwise refuse to limit their pumping of groundwater. Watermasters are typically appointed by the court to ensure that pumping conforms to the limits defined by the adjudication." 27 basins or sub-basins are adjudicated out of 515 groundwater basins identified by DWR in Bulletin 118. These are predominantly in urban and suburban parts of Southern California.
   
   State law gives every overlying property owner a potential right in an unadjudicated groundwater basin. As such, determining who has groundwater rights that could be affected by an adjudication and the scope of those rights is difficult and can be a lengthy process; adjudications typically take more than a decade to resolve. Identifying and noticing every party that may have a right, completing technical work and sorting through disagreements over this technical work, and determining historic groundwater use which could affect the scope of one's rights are all factors that can contribute to increasing the time and expense of an adjudication. In an attempt to streamline the groundwater adjudication process, the Legislature passed SB 226 (Pavley), Chapter 676, Statutes of 2015, and AB 1390 (Alejo), Chapter 672, Statutes of 201, in the wake of SGMA’s passage.
   
   The Committee is aware of five pending groundwater adjudications:

• Santa Clara Valley – Oxnard (No. 4-001.2) and Pleasant Valley (No. 4-006) groundwater basins, commenced in December 2022.
• Cuyama Valley groundwater basin (No. 3-013), commenced in March 2022.
• Indian Wells groundwater basin (No. 6-54), commenced in November 2021.
• Upper Ventura River (No. 4-3.01), Ojai Valley (No. 4-2), Lower Ventura River (No. 4-3.02), and Upper Ojai Valley (No. 4-1) groundwater basins, commenced in November 2019.
• Las Posas Valley groundwater basin (No. 4-8), commenced in November 2018.

An additional adjudication in the Borrego Valley groundwater subbasin (No. 7-024.1) commenced in July 2020; the court approved a stipulated judgment to settle this adjudication on April 8, 2021 and the case is no longer active.

1. Arguments in support. The Community Alliance with Family Farmers (CAFF) supports this bill asserting that it will improve the adjudication process to make it more consistent with SGMA and increase access to an adjudication proceeding for small farmers and disadvantaged communities which have not fared well in the adjudication process to date. CAFF points to examples in the Cuyama and Indian Wells basins where large growers initiated an adjudication because they did not agree with the direction the SGMA process was going. Finally, CAFF contends that “the idea of SGMA – that all stakeholders would be represented and their interests considered, and that there would be local community processes to achieve sustainability – will mean nothing if these overdrafted basins end up in court.”
2. Oppose unless amended. Agricultural Council of California (Ag Council) and a number of agricultural trade associations have taken an “oppose unless amended” position on this bill. Ag Council et al. state “while we respect the author’s intention to make these complex proceedings more accessible to affected landowners who may not fully understand the import of participating in an adjudication, the bill in its current form creates onerous procedures that may not be necessary.” These groups raise a number of concerns with this bill: a) posting specified court documents online is onerous, ambiguous, and would occur after the fact; b) this bill is premature because the streamlined groundwater adjudication process enacted by the Legislature is in early stages of implementation; c) this bill is duplicative because GSAs already have obligations to manage a basin while an adjudication is pending and courts already have a mechanism to as the State Water Board or DWR to provide technical assistance during an adjudication proceeding (Water Code § 2000); and d) the requirement for a GSA for a basin going through an adjudication to hold a public meeting explaining the process is problematic because the GSA is most likely a party to the adjudication and, therefore, may use the opportunity “to put a specific slant on the adjudication process.” Ag Council et al. do not offer specific amendments to address the concerns they raise.
3. Double referral. This bill is also referred to the Assembly Judiciary Committee.
4. Related legislation. AB 560 (Bennett), current session, would require a court, before finalizing a groundwater adjudication, to refer the proposed adjudication to the State Water Resources Control Board (State Water Board) for an advisory determination as to whether it will impair the ability of a GSA, the State Water Board, or DWR to achieve sustainable groundwater management. AB 560 is set for hearing before the Assembly Committee on Water, Parks, and Wildlife on March 28, 2023.
   
   SB 1372 (Stern), Chapter 682, Statutes of 2022, provides that the approval of a GSP by DWR shall not be construed as a determination or opinion by DWR that the allocation of pumping rights in a GSP is consistent with groundwater rights law.
   
   AB 2313 (Bloom), 2021-22 Session, would have required the Judicial Council to establish a program to train judges in water law and expanded the utilization of special experts in complex cases involving water law. AB 2313 died in the Senate Appropriations Committee.
   
   AB 938 (Rodriguez), 2015-16 Session, would have permitted a local agency or water master administering an adjudicated groundwater basin to elect that the adjudicated basin be subject to SGMA. AB 928 died in the Senate Committee on Natural Resources and Water.
   
   SB 226 (Pavley), Chapter 676, Statutes of 2015, integrates and streamlines the groundwater adjudication process for groundwater basins that are subject to SGMA.
   
   AB 1390 (Alejo), Chapter 672, Statutes of 2015, added new provisions to the Civil Code of Procedure that establish methods and procedures for comprehensive groundwater adjudications that are consistent with sustainable groundwater management.

REGISTERED SUPPORT / OPPOSITION:

Support

Community Alliance with Family Farmers

Oppose Unless Amended

African American Farmers of California
Agricultural Council of California
California Apple Commission
California Blueberry Association
California Blueberry Commission
California Chamber of Commerce
California Farm Bureau Federation
California Fresh Fruit Association
California League of Food Producers
California Walnut Commission
Nisei Farmers League
Olive Growers Council of California
United Ag
Western Growers Association
Western Plant Health Association

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