PHASE 2: ADJUDICATION REFORM
The enactment of the Sustainable Groundwater Management Act of 2014 (“SGMA”) was a bold first step toward managing California groundwater. SGMA requires local agencies to elect to be “groundwater sustainability agencies” or “GSAs” to develop “groundwater sustainability plans” or “GSPs” for the state’s most at-risk basins. A GSP must curtail the adverse consequences of groundwater overdraft—such as subsidence, seawater intrusion, and long-term supply depletion—within 20 years of the plan’s adoption.
Despite its merits, SGMA is an incomplete remedy to California’s groundwater management problems. The legislature left key issues unresolved. The act does not provide for a determination of groundwater rights and how they relate to both pumping allocations and obligations to fund basin replenishment and management. SGMA also does not set definitive criteria for determining a basin’s sustainable yield and for resolving other technical matters that inform the amount of groundwater that may legally be pumped from a basin and who is allowed to do so. Further, SGMA does not establish a procedure to resolve disagreements over which local agency or combination of agencies will assume the role of the GSA. These difficult issues must either be resolved through negotiation or litigated through a groundwater basin adjudication. A basin adjudication is a judicial process initiated by a lawsuit in which the court determines the groundwater rights of the parties extracting groundwater from the basin and institutes a groundwater management plan.
Out of the 515 state-identified groundwater basins or subbasins in California, roughly two dozen have been adjudicated and are now managed pursuant to court-administered management plans. Once complete, adjudications typically afford efficient and sustainable groundwater management by limiting cumulative groundwater production to the basin’s “safe yield,” establishing programs to enhance the basin’s yield, comprehensively adjudicating groundwater rights, and assigning individual pumping allocations among the parties. Adjudications also typically allow for voluntary transfers of pumping allocations and maintain the court’s continuing jurisdiction to oversee the management plan, adapt the plan over time, and resolve future disputes. The significant downside of groundwater basin adjudications has been the time and expense required to complete them; some adjudications have lasted several decades or longer.
The potential delay attendant to a groundwater basin adjudication is inconsistent with SGMA’s goal of achieving sustainable groundwater management within 20 years of the adoption of a GSP. Recent legislation addresses this problem. AB 1390 (Alejo) and SB 226 (Pavley) were signed by Gov.r Brown on October 9, 2015, to reform judicial procedures applicable to groundwater adjudications. These new laws should expedite and lessen the expense of future adjudications.
AB 1390, which was sponsored by the California Farm Bureau, sets forth new provisions in the Code of Civil Procedure (“CCP”) applicable to future basin adjudications. Among its essential elements are provisions to:
- Ensure that groundwater adjudications, which are deemed “comprehensive adjudications,” determine all groundwater rights within the basin for purposes of establishing in rem jurisdiction and the comprehensive effect of the adjudication;
- Establish an efficient method to serve all potential groundwater claimants, including all landowners overlying the basin, whether or not they are current pumpers;
- Establish provisions for party intervention in a comprehensive adjudication, including the absolute right to intervene in the adjudication by a GSA or a city or county that overlies the basin;
- Eliminate peremptory judicial challenges pursuant to CCP section 170.6 and venue removal motions pursuant to CCP section 394 in comprehensive adjudications;
- Provide that a judge of a superior court of a county that overlies the basin is disqualified and that the chairperson of the Judicial Council shall assign a judge to preside over the action;
- Provide that comprehensive adjudications are presumed to be complex litigation;
- Allow for electronic service of pleadings and papers;
- Permit the court to direct a party or other entity to submit a request to the California Department of Water Resources (“DWR”) to revise the boundaries of the basin;
- Authorize the court to divide the trial into phases and limit discovery to correspond to each phase;
- Permit the court to form classes of overlying groundwater rights holders pursuant to CCP section 382;
- Authorize the court to stay the litigation to allow for progress on a GSP, the development of technical studies, or other settlement initiatives;
- Allow the court to appoint special masters;
- Require litigants to make early factual disclosures concerning groundwater pumping and use, among other disclosure requirements;
- Require disclosures concerning expert witnesses accompanied by expert reports;
- Require the parties to submit direct testimony through written affidavits or declarations rather than live testimony;
- Empower the court to adopt a preliminary injunction limiting groundwater production while the adjudication proceeds within basins experiencing long-term overdraft;
- Encourage the parties to pursue settlement and specific procedures for the court to review proposed settlement stipulations;
- Permit the court to apply, in a comprehensive adjudication, the principles set forth in In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, which would allow the court to “subordinate” the priority of dormant (i.e., unused) overlying rights;
- Establish required findings that the court must make in entering a judgment in a comprehensive adjudication; and
- Preserve the court’s continuing jurisdiction over the action.
SB 226, which incorporates many provisions proposed by the Brown administration, primarily addresses the coordination and consistency of future groundwater adjudications with basin management procedures under SGMA. It includes provisions that:
- Allow the state to intervene as a party in a comprehensive adjudication;
- Establish the process by which a request may be made to DWR to revise the boundaries of a basin that is subject to a comprehensive adjudication, the information to be included with the request, and the methodology and criteria to be applied by DWR in assessing these requests;
- Provide that a court overseeing a comprehensive adjudication for a basin required to have a GSP to manage the proceeding 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 time frames established by SGMA;
- Exempt a basin managed pursuant to a judgment entered in a comprehensive adjudication from the state enforcement provisions of SGMA if the judgment is submitted to DWR for evaluation and DWR determines that the judgment satisfies the objectives of SGMA; and
- Prohibit the court from entering a judgment in a comprehensive adjudication 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.
Overall, these adjudication reform laws provide a necessary complement to SGMA. They should expedite the resolution of legal conflicts that may arise in many basins as SGMA is implemented.