California Senate Bill SB226 Amended / Bill

 BILL NUMBER: SB 226AMENDED BILL TEXT AMENDED IN SENATE APRIL 6, 2015 INTRODUCED BY Senator Pavley FEBRUARY 13, 2015 An act to  amend Sections 10721 and 10735.8   , and to  add Chapter 12 (commencing with Section 10737) to Part 2.74 of Division  6   6,  of the Water Code, relating to groundwater. LEGISLATIVE COUNSEL'S DIGEST SB 226, as amended, Pavley. Sustainable Groundwater Management Act: groundwater rights. 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 specifies the jurisdiction of the courts. Under existing law, courts may adjudicate rights to produce groundwater and exercise other powers relating to the supervision of a groundwater basin. This bill would  provide   find and declare  that it establishes a timely  and comprehensive  method  for determining rights to   groundwater. The bill would provide that a court shall use the Code of Civil Procedure  for determining rights to  groundwater in furtherance of the objectives of   groundwater,   except as provided by the special procedures established in  the  act.   bill.  This bill would require the process  for determining rights to groundwater  to be available to any court of competent jurisdiction.  The bill would provide that it applies to Indian tribes and the federal government   .   This   The bill would require the boundaries of a basin to be as identified in Bulletin 118, unless other basin boundaries are established, as specified.  The bill would authorize the Department of Water Resources and the Department of Fish and Wildlife to intervene in an action or proceeding if they claim an interest relating to the action or proceeding, as provided. The bill would specify service and notice procedures. The bill would require a party to provide specified initial disclosures to the other parties, including, among other disclosures, information relating to expert witnesses.  Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 10721 of the   Water Code   is amended to read:  10721. Unless the context otherwise requires, the following definitions govern the construction of this part: (a) "Adjudication action" means an action filed in the superior or federal district court to determine the rights to extract groundwater from a basin or store water within a basin, including, but not limited to, actions to quiet title respecting rights to extract or store groundwater or an action brought to impose a physical solution on a basin. (b) "Basin" means a groundwater basin or subbasin identified and defined in Bulletin 118 or as modified pursuant to Chapter 3 (commencing with Section 10722). (c) "Bulletin 118" means the department's report entitled "California's Groundwater: Bulletin 118" updated in 2003, as it may be subsequently updated or revised in accordance with Section 12924. (d) "Coordination agreement" means a legal agreement adopted between two or more groundwater sustainability agencies that provides the basis for coordinating multiple agencies or groundwater sustainability plans within a basin pursuant to this part. (e) "De minimis extractor" means a person who extracts, for domestic purposes, two acre-feet or less per year.  (f) "Expert witness" means a witness qualified pursuant to Section 720 of the Evidence Code.   (f)   (g)  "Governing body" means the legislative body of a groundwater sustainability agency.  (g)   (h)  "Groundwater" means water beneath the surface of the earth within the zone below the water table in which the soil is completely saturated with water, but does not include water that flows in known and definite channels.  (h)   (i)  "Groundwater extraction facility" means a device or method for extracting groundwater from within a basin.  (i)   (j)  "Groundwater recharge" means the augmentation of groundwater, by natural or artificial means.  (j)   (k)  "Groundwater sustainability agency" means one or more local agencies that implement the provisions of this part. For purposes of imposing fees pursuant to Chapter 8 (commencing with Section 10730) or taking action to enforce a groundwater sustainability plan, "groundwater sustainability agency" also means each local agency comprising the groundwater sustainability agency if the plan authorizes separate agency action.  (k)   (l)  "Groundwater sustainability plan" or "plan" means a plan of a groundwater sustainability agency proposed or adopted pursuant to this part.  (l)   (m)  "Groundwater sustainability program" means a coordinated and ongoing activity undertaken to benefit a basin, pursuant to a groundwater sustainability plan.  (m)   (n)  "Local agency" means a local public agency that has water supply, water management, or land use responsibilities within a groundwater basin.  (n)   (o)  "Operator" means a person operating a groundwater extraction facility. The owner of a groundwater extraction facility shall be conclusively presumed to be the operator unless a satisfactory showing is made to the governing body of the groundwater sustainability agency that the groundwater extraction facility actually is operated by some other person.  (o)   (p)  "Owner" means a person owning a groundwater extraction facility or an interest in a groundwater extraction facility other than a lien to secure the payment of a debt or other obligation.  (p)   (q)  "Personal information" has the same meaning as defined in Section 1798.3 of the Civil Code.  (q)   (r)  "Planning and implementation horizon" means a 50-year time period over which a groundwater sustainability agency determines that plans and measures will be implemented in a basin to ensure that the basin is operated within its sustainable yield.  (r)   (s)  "Public water system" has the same meaning as defined in Section 116275 of the Health and Safety Code.  (s)   (t)  "Recharge area" means the area that supplies water to an aquifer in a groundwater basin.  (t)   (u)  "Sustainability goal" means the existence and implementation of one or more groundwater sustainability plans that achieve sustainable groundwater management by identifying and causing the implementation of measures targeted to ensure that the applicable basin is operated within its sustainable yield.  (u)   (v)  "Sustainable groundwater management" means the management and use of groundwater in a manner that can be maintained during the planning and implementation horizon without causing undesirable results.  (v)   (w)  "Sustainable yield" means the maximum quantity of water, calculated over a base period representative of long-term conditions in the basin and including any temporary surplus, that can be withdrawn annually from a groundwater supply without causing an undesirable result.  (w)   (x)  "Undesirable result" means one or more of the following effects caused by groundwater conditions occurring throughout the basin: (1) Chronic lowering of groundwater levels indicating a significant and unreasonable depletion of supply if continued over the planning and implementation horizon. Overdraft during a period of drought is not sufficient to establish a chronic lowering of groundwater levels if extractions and recharge are managed as necessary to ensure that reductions in groundwater levels or storage during a period of drought are offset by increases in groundwater levels or storage during other periods. (2) Significant and unreasonable reduction of groundwater storage. (3) Significant and unreasonable seawater intrusion. (4) Significant and unreasonable degraded water quality, including the migration of contaminant plumes that impair water supplies. (5) Significant and unreasonable land subsidence that substantially interferes with surface land uses. (6) Depletions of interconnected surface water that have significant and unreasonable adverse impacts on beneficial uses of the surface water.  (x)   (y)  "Water budget" means an accounting of the total groundwater and surface water entering and leaving a basin including the changes in the amount of water stored.  (y)   (z)  "Watermaster" means a watermaster appointed by a court or pursuant to other law.  (z)   (aa)  "Water year" means the period from October 1 through the following September 30, inclusive.  (aa)   (ab)  "Wellhead protection area" means the surface and subsurface area surrounding a water well or well field that supplies a public water system through which contaminants are reasonably likely to migrate toward the water well or well field.  SEC. 2.   Section 10735.8 of the   Water Code   is amended to read:  10735.8. (a) The board, after notice and a public hearing, may adopt an interim plan for a probationary basin. (b) The interim plan shall include all of the following: (1) Identification of the actions that are necessary to correct a condition of long-term overdraft or a condition where groundwater extractions result in significant depletions of interconnected surface waters, including recommendations for appropriate action by any person. (2) A time schedule for the actions to be taken. (3) A description of the monitoring to be undertaken to determine effectiveness of the plan. (c) The interim plan may include the following: (1) Restrictions on groundwater extraction. (2) A physical solution. (3) Principles and guidelines for the administration of rights to surface waters that are connected to the basin. (d) Except as provided in subdivision (e), the interim plan shall be consistent with water right priorities, subject to Section 2 of Article X of the California Constitution. (e) The board shall include in its interim plan a groundwater sustainability plan, or any element of a plan, that the board finds complies with the sustainability goal for that portion of the basin or would help meet the sustainability goal for the basin. Where, in the judgment of the board, an adjudication action can be relied on as part of the interim plan, either throughout the basin or in an area within the basin, the board may rely on, or incorporate elements of, that adjudication into the interim plan adopted by the board. (f) In carrying out activities that may affect the probationary basin, state entities shall comply with an interim plan adopted by the board pursuant to this section unless otherwise directed or authorized by statute and the state entity shall indicate to the board in writing the authority for not complying with the interim plan. (g) (1) After the board adopts an interim plan under this section, the board shall determine if a groundwater sustainability plan or an adjudication action is adequate to eliminate the condition of long-term overdraft or condition where groundwater extractions result in significant depletions of interconnected surface waters, upon petition of either of the following: (A) A groundwater sustainability agency that has adopted a groundwater sustainability plan for the probationary basin or a portion thereof. (B) A person authorized to file the petition by a judicial order or decree entered in an adjudication action in the probationary basin. (2) The board shall act on a petition filed pursuant to paragraph (1) within 90 days after the petition is complete. If the board, in consultation with the department, determines that the groundwater sustainability plan or adjudication action is adequate, the board shall rescind the interim plan adopted by the board for the probationary basin, except as provided in paragraphs (3) and (4). (3) Upon request of the petitioner, the board may amend an interim plan adopted under this section to eliminate portions of the interim plan, while allowing other portions of the interim plan to continue in effect. (4) The board may decline to rescind an interim plan adopted pursuant to this section if the board determines that the petitioner has not provided adequate assurances that the groundwater sustainability plan or judicial order or decree will be implemented. (5) This subdivision is not a limitation on the authority of the board to stay its proceedings under this section or to rescind or amend an interim plan adopted pursuant to this section based on the progress made by a groundwater sustainability agency or in an adjudication  action,   action pursuant to Chapter 12 (commencing with Section 10737),  even if the board cannot make a determination of adequacy in accordance with paragraph (1). (h) Before January 1, 2025, the state board shall not establish an interim plan under this section to remedy a condition where the groundwater extractions result in significant depletions of interconnected surface waters. (i) The board's authority to adopt an interim plan under this section does not alter the law establishing water rights priorities or any other authority of the board.  SECTION 1.   SEC. 3.  Chapter 12 (commencing with Section 10737) is added to Part 2.74 of Division 6 of the Water Code, to read: CHAPTER 12. DETERMINATION OF RIGHTS TO GROUNDWATER Article 1. General Provisions 10737. (a)  This   The Legislature finds and declares that this  chapter establishes a timely  and comprehensive  method for determining rights to groundwater in furtherance of the objectives of this part.  (b) It is the intent of the Legislature to subsequently amend this chapter to address all of the following:   (1) Basin boundaries pursuant to Article 3 (commencing with Section 10739).   (2) Notice and service.   (3) Provision of expert information and science.   (4) Fairness and balance under the law.   (5) Consistency with Winters v. United States (207 U.S. 564 (1908)), the McCarran Amendment (codified at 43 U.S.C. Sec. 666), and any other federal laws regarding the determination of federal or tribal water rights, as applicable.   (b) This chapter establishes special procedures for court use in determining rights to groundwater. Unless otherwise provided in this chapter, a court shall determine rights to groundwater using the procedures codified in the Code of Civil Procedure.   10737.2. In making its determination of rights to groundwater, a court shall avoid an undesirable result as defined in Section 10721.  Article 2. Application 10738. The process defined in this chapter shall be available to any court of competent jurisdiction.  10738.2. (a) Consistent with subdivision (b) of Section 10720.3, this chapter applies to an Indian tribe and to the federal government, to the extent authorized under federal law. (b) Section 389 of the Code of Civil Procedure shall not apply to any failure to join an Indian tribe or the United States to an action or proceeding brought under this chapter.   10738.4. An action requesting a court to determine water rights under this chapter shall be deemed provisionally complex within the meaning provided in Rule 3.400 of Title 3 of the California Rules of Court.  Article 3. Basin Boundaries 10739. Unless other basin boundaries are established pursuant to Section 10722.2 or subdivision (b) of Section 12924, the boundaries of a basin shall be as identified in Bulletin 118. Article  4.   Parties   10740. Upon timely motion, the court shall permit the department or the Department of Fish and Wildlife, or both, to intervene in an action or proceeding brought under this chapter if the movant claims an interest relating to the action or proceeding and is so situated that disposing of the action or proceeding may, as a practical matter, impair or impede the movant's ability to protect its interest.  Article  5.   Service and Notice   10741. (a) All known defendants shall be served in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure. (b) (1) All unknown defendants shall be served by publication as provided in Section 415.50 of the Code of Civil Procedure. (2) In addition to other requirements of Section 415.50 of the Code of Civil Procedure, the publication shall describe the groundwater basin that is the subject of the action. The publication shall describe the groundwater basin as identified pursuant to Section 10739, the Internet address for a map depicting the basin, and any other identifying information that the court deems appropriate.  Article  6.   Discovery   10742. (a) Except as otherwise stipulated or ordered by the court, a party shall, without awaiting a discovery request, provide to the other parties all of the following: (1) The name and, if known, the address and telephone number of each individual likely to have discoverable information, along with the subjects of that information, who the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment. (2) A copy or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control that it may use to support its claims or defenses, unless the use would be solely for impeachment. (3) A quantification of claims to water in the basin by the disclosing party. The disclosing party shall also make available for inspection and copying any documents or other evidentiary material, unless privileged or protected from disclosure, on which each claim is based, including materials bearing on the nature and extent of those claims. (b) A party shall make all disclosures required by this article at or within 14 days after the parties' initial case management conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in a proposed discovery plan. In ruling on the objection, the court shall determine what disclosures, if any, are to be made and shall set the time for disclosure. (c) A party that is first served or otherwise joined after the initial case management conference shall make its initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order. (d) A party shall make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.  Article  7.   Expert Witnesses   10743. (a) In addition to the other disclosures required by this chapter, a party shall disclose to the other parties the identity of any expert witness it may use at trial to present evidence. (b) Unless otherwise stipulated or ordered by the court, this disclosure shall be accompanied by a written report, prepared and signed by the expert witness, if the expert witness is retained or specially employed to provide expert testimony in the case or whose duties as the party's employee regularly involve giving expert testimony. The report shall contain all of the following: (1) A complete statement of all opinions the expert witness will express and the basis and reasons for them. (2) The facts or data considered by the expert witness in forming his or her opinions. (3) Any exhibits that will be used to summarize or support the opinions of the expert witness. (4) The expert witness's qualifications, including a list of all publications authored in the previous 10 years. (5) A list of all other cases in which, during the previous four years, the expert witness testified as an expert at trial or by deposition. (6) A statement of the compensation to be paid to the expert witness for the study and testimony in the case. (c) Unless otherwise stipulated or ordered by the court, if the expert witness is not required to provide a written report, the disclosure shall state both of the following: (1) The subject matter on which the expert witness is expected to present evidence. (2) A summary of the facts and opinions to which the expert witness is expected to testify. (d) A party shall make the required disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures shall be made at either of the following times: (1) At least 90 days before the date set for trial or for the case to be ready for trial. (2) If the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party, within 30 days after the other party's disclosure.