Legislation Revamping California Groundwater Adjudications Marches Forward

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AB 1390 aims in unprecedented fashion to expedite procedures and processes for groundwater adjudications, which, in California, are known to take one or two decades before reaching a final judgment. The bill would add various provisions to the California Code of Civil Procedure that would be codified as Sections 830 through 849. AB 1390 was introduced in the California Assembly on February 27, 2015 and last amended in the California Senate earlier this week on August 18. September 4 is the last day to amend bills, September 11 is the last for each house to pass bills and October 11 is the last day for the Governor to sign or veto bills. With unanimous support so far in both chambers of the Legislature, AB 1390 is well on its way to becoming law, set for further hearing next week in the California Senate.

The key to whether AB 1390 is triggered comes down to whether the trial court – within its discretion – deems the action to be a “comprehensive adjudication.” Section 830.5(d) lends some assistance by defining this term as “an action filed in superior court to comprehensively determine rights to extract groundwater in a basin.” AB 1390 provides exceptions of what would not be a “comprehensive adjudication” (set forth in Section 831 (c)), such as claiming a party’s groundwater extraction facility is interfering with the availability of groundwater to another, or, claiming interference with a specific source of recharge.

While these exceptions seem clear, adjudication history of many cases demonstrates that such claims quickly evolve into basin-wide determinations, in which case AB 1390’s procedures would apply. Specifically, AB 1390 requires the plaintiff or a cross-complainant to undertake various steps (set forth in Sections 832 through 840), including: (i) naming all public water suppliers; (ii) providing public notification of the lawsuit; (iii) providing a draft model answer; and (iv) providing initial disclosures regarding historical water use, locations of extraction and use, and the claimed legal basis for a water right such as an overlying right or prescriptive right. Other obligations then fall upon the trial court and other parties (set forth in Sections 840 through 842), such as identifying trial issues and dividing the process into phases, with the parties required to expedite factual discovery about water use and related factual issues.

With the recent enactment of the Sustainable Groundwater Management Act (“SGMA”), an interesting dynamic would exist as to how AB 1390 (if it becomes law) and SGMA will interplay. On the one hand, AB 1390 might operate in conjunction with SGMA (see Sections 846, 848 and 849) by Groundwater Sustainability Agencies (“GSAs”) being appointed by a trial court as the watermaster in adjudications. On the other hand, if local efforts by GSAs or others dissatisfy just one local water stakeholder, a groundwater adjudication might be filed as an alternative to the GSA’s efforts.

These evolving issues significantly impact all water users throughout the State of California, making all the more necessary strategic planning and implementation for protecting immediate and long-term water rights and supplies.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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