On Friday, October 9, 2015, Governor Brown signed into law two bills, Assembly Bill 1390 and Senate Bill 226, which outline procedures specific to groundwater adjudications. Last year, the legislature passed the Sustainable Groundwater Management Act (SGMA) and the adoption of AB 1390 and SB 226 furthers the legislative scheme to manage California’s groundwater. We briefly outline the main aspects of each new law.
AB 1390 amends the Code of Civil Procedure (CCP) to establish procedures for groundwater “comprehensive adjudications.” (CCP §§ 830-852.) A “comprehensive adjudication” is defined as “an action filed in superior court to comprehensively determine rights to extract groundwater in a basin.” (CCP § 832, subd. (c).) The Code provisions specify actions that do not fall within this definition. (CCP § 833, subd. (b).)
Under the new Code provisions, a court has the authority to determine all groundwater rights of a basin, including appropriative, overlying, and use of storage space. (CCP § 834, subd. (a).) A final judgment (whether stipulated or otherwise) entails a physical solution which can encompass establishing “the priority, amount, purposes of use, extraction location, place of use of the water, and use of storage space in the basin” along with injunctive relief. (CCP § 834, subd. (b).) Moreover, the judgment binds the parties, their agents and employees, and any successors in interest. (CCP § 851.)
Under the new provisions, the court is authorized to issue preliminary injunctive relief in cases of “long-term overdraft.” (CCP § 847.) The court also has the authority to stay any adjudication pending approval of a physical solution outlined in a groundwater sustainability plan pursuant to SGMA, to allow time for technical investigations which may aid in the comprehensive adjudication, or to allow for alternative dispute resolutions. (CCP § 848.) ]
Procedurally, the groundwater adjudication provisions require extensive notice and service procedures, initial disclosures, and detailed case management conferences. (CCP §§ 835, 836, 836.5, 840, 842.) The new procedures also authorize intervention by non-parties, local agencies, and any overlying city, county, or groundwater sustainability agencies (GSA). (CCP § 837.) In addition, to aid the court in navigating the anticipated complex issues, the Code authorizes the court to appoint special masters recommended by the State Water Resources Control Board or Department of Water Resources. (CCP § 845.)
SB 226 amends the Code of Civil Procedure and the Water Code.
It amends the Code of Civil Procedure to allow the State to also intervene in a comprehensive adjudication. (CCP § 837.5.)
SB 226 amends the Water Code to ensure that groundwater adjudications are consistent with the purposes of SGMA. Of pertinence, the Water Code amendments require that courts manage adjudications so as to “minimize interference with the timely completion and implementation of a groundwater sustainability plan” and other timeframes outlined in SGMA as well as avoid redundancy in developing technical information and physical solutions. (Water Code § 10737.2.) The amendments also allow a court to order an entity to request basin boundary revisions from the Department of Water Resources. (Water Code § 10722.2, subd. (a).)
Furthermore, the amendments allow a probationary basin to avoid applicable SGMA provisions, viz. Water Code sections 10735 et. seq., if the proposed judgment is submitted to the Department for review. (Water Code § 10737.4.) Finally, the amendments prohibit a court from entering judgment for a basin that requires a groundwater sustainability plan under SGMA unless the court “finds that the judgment will not substantially impair the ability of a [GSA], the [State Water Resources Control Board], or the [Department of Water Resources] to comply with [SGMA] and to achieve sustainable groundwater management.” (CCP § 10737.8.)
The purpose of these new laws is two-fold: first, to create symbiosis between groundwater adjudications and SGMA and second, to streamline groundwater adjudications which, like most litigation, are currently time-consuming and costly. Whether this legislative intent bears fruition remains to be seen.