The new laws—companion bills AB 1390 (Alejo) and SB 226 (Pavley)—streamline California’s onerous groundwater adjudication process, which can drag on for decades. Such adjudications comprehensively establish groundwater right allocations for all users in a covered groundwater basin and, up to now, have been governed by common law principles. The new statutes focus primarily on procedures to speed up the groundwater adjudication process, but also ensure that courtroom adjudications do not interfere with California’s 2014 legislation promoting sustainable management of groundwater basins, known as the Sustainable Groundwater Management Act (“SGMA”).
There are at least 20 adjudicated basins in California, but the daunting, multi-year adjudication process tends to discourage attempts to comprehensively establish groundwater rights. For example, the initial complaint in the Upper Los Angeles River Area adjudication was filed in 1955, but adjudication was not completed until 1979. Further, every affected groundwater right holder in a subject basin must receive notice, which results in huge numbers of named parties. The recently concluded Antelope Valley adjudication had over 70,000 parties.
With the potential for multi-decade litigation affecting thousands of parties, the adjudication process has not been used to its full potential. But with vastly increased groundwater pumping prompted by California’s historic drought, and a “wild west” chaos predominating in many of California’s groundwater aquifers, the new laws come at a key juncture. Building on SGMA, the new laws promise to provide further tools for effectively determining and managing groundwater resources throughout California. Once wielded, however, these powerful legal tools will have vast consequences in determining the scope of water rights across the State.
Key Changes to Lawsuits Determining Groundwater Rights
AB 1390 aims to streamline and speed up the judicial procedures for conducting comprehensive groundwater adjudications, targeting challenges related to providing notice, authorizing new agency intervention, phasing the litigation, setting disclosure deadlines, and providing injunctive power to the court to prevent a pumpers’ race to the bottom after the complaint is filed.
Specifically, AB 1390:
- Requires the plaintiff filing the complaint to also provide a draft notice and draft form answer at that time. The plaintiff then would need to send the notice to all tax assessor parcel numbers in the basin, so as to ensure all affected parties are provided with notice. The law deems such actions as sufficient to provide notice and establish jurisdiction over all affected parties.
- Authorizes groundwater sustainability agencies—the local agencies designated by SGMA as responsible for devising groundwater sustainability plans—to intervene in a comprehensive adjudication. This would ensure that even where such sustainability agencies do not hold water rights in the basin, they can still intervene in the litigation.
- Requires the court to convene an early case management conference aimed at speeding up the litigation, to address: (1) identifying whether the basin boundaries should be adjusted, (2) appointing a special master, (3) scheduling a hearing on a preliminary injunction, (4) dividing the case into phases to resolve legal and factual issues, (5) limiting discovery to correspond to the phasing, (6) scheduling an early resolution of claims to prescriptive rights, and (7) forming classes of overlying groundwater rights holders to further speed adjudication.
- Mandates that all parties submit initial disclosures within six months of appearing in the action. In these disclosures—submitted under penalty of perjury—each party must identify the quantity of groundwater extracted from the basin for each of the previous 10 years, the location of each groundwater extraction well, and the use for which groundwater extracted has been applied.
- Authorizes the court to issue a preliminary injunction that could include a moratorium on new or increased groundwater extraction. This provision would help reduce the race to the pumps created by the filing of adjudication action.
SB 226 adds provisions specific to groundwater basins that are undergoing a comprehensive adjudication and which are also subject to the SGMA. SGMA requires all groundwater basins designated as high- or medium-priority basins by the Department of Water Resources to have a groundwater sustainability plan in place by January 2022 (or 2020, if in a state of critical overdraft). Cal. Water Code § 10720.7(a).
SB 226 requires courts overseeing comprehensive groundwater adjudications to:
manage the proceedings in a manner that minimizes interference with the timely completion and implementation of a groundwater sustainability plan, 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 within the timeframes established by this part.Cal. Water Code § 10737.2. In the context of adjudications, the legislation would also clarify how groundwater basin boundary adjustments should occur as well as how basins deemed “probationary” under SGMA would be covered by an adjudication.
This bill would also enable the California Attorney General to intervene in any adjudication action.
California Confronts the Drought Head-On
The new laws further demonstrate the California Legislature’s “all hands on deck” efforts to addressing the current water crisis. On the heels of authorizing $7.5 billion in Prop. 1 funding, the groundbreaking SGMA, the State Water Resources Control Board’s unprecedented curtailment notices to surface water rights holders, and recent developments in the courts, California continues the process of redefining the legal framework applicable to California’s vitally important groundwater resources.
-- Dave Metres
For more information, contact Dave Metres at dmm@bcltlaw.com or (415) 228-5488.
