Bill Text: CA AB1390 | 2015-2016 | Regular Session | Chaptered
Bill Title: Groundwater: comprehensive adjudication.
Spectrum: Slight Partisan Bill (Democrat 15-6)
Status: (Passed) 2015-10-09 - Chaptered by Secretary of State - Chapter 672, Statutes of 2015. [AB1390 Detail]
Download: California-2015-AB1390-Chaptered.html
BILL NUMBER: AB 1390 CHAPTERED
BILL TEXT
CHAPTER 672
FILED WITH SECRETARY OF STATE OCTOBER 9, 2015
APPROVED BY GOVERNOR OCTOBER 9, 2015
PASSED THE SENATE SEPTEMBER 9, 2015
PASSED THE ASSEMBLY SEPTEMBER 10, 2015
AMENDED IN SENATE SEPTEMBER 4, 2015
AMENDED IN SENATE SEPTEMBER 1, 2015
AMENDED IN SENATE AUGUST 19, 2015
AMENDED IN SENATE AUGUST 18, 2015
AMENDED IN SENATE JULY 6, 2015
AMENDED IN ASSEMBLY MAY 18, 2015
AMENDED IN ASSEMBLY APRIL 30, 2015
AMENDED IN ASSEMBLY MARCH 26, 2015
INTRODUCED BY Assembly Members Alejo, Gomez, and Perea
(Principal coauthors: Assembly Members Gray, Olsen, and Salas)
(Principal coauthors: Senators Cannella, Hueso, Pavley, and Vidak)
(Coauthors: Assembly Members Cooley, Cooper, Eggman, Frazier,
Levine, Mathis, Ridley-Thomas, Wilk, and Wood)
(Coauthors: Senators Fuller and Galgiani)
FEBRUARY 27, 2015
An act to add Chapter 7 (commencing with Section 830) to Title 10
of Part 2 of the Code of Civil Procedure, relating to groundwater.
LEGISLATIVE COUNSEL'S DIGEST
AB 1390, Alejo. Groundwater: comprehensive adjudication.
The California Constitution requires that the water resources of
the State be put to beneficial use to the fullest extent of which
they are capable. Under the Sustainable Groundwater Management Act,
which applies to all groundwater basins in the state, all basins
designated as high- or medium-priority basins by the Department of
Water Resources as basins that are subject to critical conditions of
overdraft, as specified, are required to be managed under a
groundwater sustainability plan or coordinated groundwater
sustainability plans by January 31, 2020.
This bill would establish special procedures for a comprehensive
adjudication, which is defined as an action filed in superior court
to comprehensively determine rights to extract groundwater in a
basin. The bill would authorize the court to determine all
groundwater rights of a basin, whether based on appropriation,
overlying right, or other basis of right, and use of storage space in
the basin. The bill would provide that these special procedures
governing comprehensive adjudications do not apply in certain cases
that do not involve a comprehensive allocation of a basin's
groundwater supply. The bill would authorize a judge of the superior
court to determine if the action is a comprehensive adjudication, as
specified.
This bill would require the plaintiff in a comprehensive
adjudication to provide notice of the comprehensive adjudication
within a specified amount of time after filing the complaint to
certain persons including a city, county, or city and county that
overlies the basin or a portion of the basin. The bill would require
a draft notice and draft form answer, as specified, to be lodged by
the plaintiff with the court when filing the complaint. Within 30
days of the assignment of a judge by the Chairperson of the Judicial
Council, the bill would require the plaintiff to file a motion for
approval of the draft notice and draft form answer. Following a court
order approving the notice and form answer and authorizing service
of landowners, as specified, the bill would require the plaintiff to
identify the assessor parcel numbers and physical addresses of all
real property in the basin and the names and addresses of all holders
of fee title to real property in the basin, as specified; mail the
notice, complaint, and form answer to all holders of fee title to
real property in the basin, as specified; and publish the notice in
one or more newspapers of general circulation, as specified. The bill
would require the plaintiff to file with the court a notice of the
completion of the mailing. The bill would deem fulfillment of the
service and publication provisions as effective service of process of
the complaint and notice on all interested parties of the
comprehensive adjudication for purposes of establishing in rem
jurisdiction and the comprehensive effect of the comprehensive
adjudication.
This bill would authorize a groundwater sustainability agency for
the basin or a portion of the basin, a city, county, or city and
county that overlies the basin or a portion of the basin, and certain
persons to intervene in a comprehensive adjudication.
This bill would require the court to convene a case management
conference and would authorize the court to consider certain matters,
including dividing the case into phases to resolve legal and factual
issues, in the initial case management conference or as soon as
practicable. In addition, the bill would require each party to serve
within 6 months of appearing in the comprehensive adjudication,
specified initial disclosures made under penalty of perjury to all
other named parties and a special master, if one has been appointed
in the action. By expanding the scope of an existing crime, the bill
would impose a state-mandated local program. The bill would authorize
the court to appoint one or more special masters in a comprehensive
adjudication, whose duties could include, among other things,
investigating technical and legal issues, as directed by the court,
and compiling a report of the findings, as specified. The bill would
authorize the court to request the State Water Resources Control
Board or the Department of Water Resources to recommend candidates
for appointment as a special master or to review the qualifications
of candidates.
This bill would authorize the court, upon a showing that the basin
is in a condition of long-term overdraft, to issue a preliminary
injunction that could include, among other things, a moratorium on
new or increased appropriations of water. The bill would provide that
a judgment in a comprehensive adjudication is binding on the parties
to the action, their agents and employees, and all their successors
in interest. The bill would also provide the court with continuing
jurisdiction to modify or amend a final judgment in a comprehensive
adjudication in specified instances.
This bill would require the Department of Water Resources and each
county and groundwater sustainability agency that overlies the basin
or a portion of the basin to post and maintain the notice and form
answer on their Internet Web sites, as specified. By requiring
counties to take certain actions related to the comprehensive
adjudication, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
This bill would provide that it will only become effective if SB
226 is enacted and becomes effective.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 7 (commencing with Section 830) is added to
Title 10 of Part 2 of the Code of Civil Procedure, to read:
CHAPTER 7. ACTIONS RELATING TO GROUNDWATER RIGHTS
Article 1. General Provisions
830. (a) This chapter establishes methods and procedures for a
comprehensive adjudication.
(b) This chapter shall be applied and interpreted consistently
with all of the following:
(1) Protecting water rights consistent with Section 2 of Article X
of the California Constitution.
(2) Conducting a comprehensive adjudication in a manner that
promotes efficiency, reduces unnecessary delays, and provides due
process.
(3) Encouraging the compromise and settlement of comprehensive
adjudications.
(4) Conducting a comprehensive adjudication in a manner that is
consistent with the achievement of groundwater sustainability within
the timeframes of the Sustainable Groundwater Management Act.
(5) Establishing procedures by which courts may conduct
comprehensive determinations of all rights and priorities to
groundwater in a basin.
(6) Providing for the conduct of a comprehensive adjudication
consistent with Winters v. United States (1908) 207 U.S. 564, 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.
(7) Providing notice and due process sufficient to enable a court
in a comprehensive adjudication conducted pursuant to this chapter to
determine and establish the priority for unexercised water rights.
The court may consider applying the principles established in In re
Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339.
Except as provided in this paragraph, this chapter shall not alter
groundwater rights or the law concerning groundwater rights.
(c) The other provisions of this code apply to procedures in a
comprehensive adjudication to the extent they do not conflict with
the provisions of this chapter.
831. Article 6 (commencing with Section 68630) of Chapter 2 of
Title 8 of the Government Code applies to a comprehensive
adjudication conducted pursuant to this chapter.
832. For purposes of this chapter, the following definitions
apply:
(a) "Basin" has the same meaning as defined in Section 10721 of
the Water Code.
(b) "Complaint" means a complaint filed in superior court to
determine rights to extract groundwater and includes any
cross-complaint that initiates a comprehensive adjudication in
response to a plaintiff's complaint or other cross-complaint.
(c) "Comprehensive adjudication" means an action filed in superior
court to comprehensively determine rights to extract groundwater in
a basin.
(d) "Condition of long-term overdraft" means the condition of a
groundwater basin where the average annual amount of water extracted
for a long-term period, generally 10 years or more, exceeds the
long-term average annual supply of water to the basin, plus any
temporary surplus. Overdraft during a period of drought is not
sufficient to establish a condition of long-term overdraft 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.
(e) "Department" means the Department of Water Resources.
(f) "Expert witness" means a witness qualified pursuant to Section
720 of the Evidence Code.
(g) "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) "Groundwater extraction facility" means a device or method for
extracting groundwater from within a basin.
(i) "Groundwater recharge" means the augmentation of groundwater,
by natural or artificial means.
(j) "Person" includes, but is not limited to, counties, local
agencies, state agencies, federal agencies, tribes, business
entities, and individuals.
(k) "Plaintiff" means the person filing the complaint initiating a
comprehensive adjudication and includes a cross-complainant who
initiates a comprehensive adjudication by cross-complaint.
(l) "Public water system" has the same meaning as defined in
Section 116275 of the Health and Safety Code.
(m) "State small water system" has the same meaning as defined in
Section 116275 of the Health and Safety Code.
(n) "Sustainable Groundwater Management Act" means the provisions
of Part 2.74 (commencing with Section 10720) of Division 6 of the
Water Code.
Article 2. Scope of Action
833. (a) Except as provided in subdivision (b), this chapter
applies to actions that would comprehensively determine rights to
extract groundwater in a basin, whether based on appropriation,
overlying right, or other basis of right.
(b) This chapter does not apply to any of the following:
(1) An action that concerns only allegations that a groundwater
extraction facility, or group of facilities, is interfering with
another groundwater extraction facility or facilities and does not
involve a comprehensive allocation of the basin's groundwater supply.
(2) An action that concerns only claims to extract, or to prevent
interference with extractions of, a specific source of groundwater
recharge and does not involve a comprehensive allocation of the basin'
s groundwater supply.
(3) An action that can be resolved among a limited number of
parties and does not involve a comprehensive determination of rights
to extract groundwater within the basin.
(4) An adjudicated area described in subdivisions (a) to (d),
inclusive, of Section 10720.8 of the Water Code, unless a court with
jurisdiction over a proposed expansion of the adjudicated area orders
that the proceeding be conducted in accordance with this chapter.
(c) If the court finds that including an interconnected surface
water body or subterranean stream flowing through known and definite
channels is necessary for the fair and effective determination of the
groundwater rights in a basin, the court may require the joinder of
persons who claim rights to divert and use water from that surface
water body or subterranean stream in a comprehensive adjudication
conducted pursuant to this chapter.
(d) If the court finds that claims of right to extract or divert
only minor quantities of water, not to exceed five acre-feet of water
per year, would not have a material effect on the groundwater rights
of other parties, the court may exempt those claimants with respect
to those claims for only minor quantities of water, but a person who
is exempted may elect to continue as a party to the comprehensive
adjudication.
834. (a) In a comprehensive adjudication conducted pursuant to
this chapter, the court may determine all groundwater rights of a
basin, whether based on appropriation, overlying right, or other
basis of right, and use of storage space in the basin.
(b) The court's final judgment in a comprehensive adjudication,
for the groundwater rights of each party, may declare the priority,
amount, purposes of use, extraction location, place of use of the
water, and use of storage space in the basin, together with
appropriate injunctive relief, subject to terms adopted by the court
to implement a physical solution in the comprehensive adjudication.
Article 3. Notice and Service of Complaint
835. (a) The plaintiff shall provide notice of the comprehensive
adjudication to all of the following:
(1) A groundwater sustainability agency that overlies the basin or
a portion of the basin.
(2) A city, county, or city and county that overlies the basin or
a portion of the basin.
(3) A district with authority to manage or replenish groundwater
resources of the basin in whole or in part.
(4) The operator of a public water system or state small water
system that uses groundwater from the basin to supply water service.
(5) A California Native American tribe that is on the contact list
maintained by the Native American Heritage Commission.
(6) The Attorney General, the State Water Resources Control Board,
the department, and the Department of Fish and Wildlife.
(7) A federal department or agency that manages a federal
reservation that overlies the basin or a portion of the basin.
(8) A person identified under Section 836.5 who is not a party to
the comprehensive adjudication.
(9) A person who is on a list, maintained by a groundwater
management agency, of interested parties that have requested notice
under the Sustainable Groundwater Management Act.
(b) The plaintiff may provide notice under this section by first
class mail or electronic mail.
(c) (1) Except as provided in paragraph (2), the plaintiff shall
provide notice under this section as follows:
(A) To any person entitled to notice under paragraphs (1) to (7),
inclusive, of subdivision (a) within 15 days of the filing of the
complaint.
(B) To any person entitled to notice under paragraphs (8) and (9)
of subdivision (a) within 30 days of receipt of the name and address
of the person entitled to notice.
(2) The plaintiff may take additional time as is reasonably
necessary before providing notice under this section if the plaintiff
determines that additional time is necessary to identify a person
entitled to notice under this section, confirm the accuracy of the
names or addresses of a person, or to determine if the conditions
requiring notice have been satisfied.
(d) The plaintiff is not required to provide notice under this
section to a person who has already been served or intervened in the
action.
836. (a) When the plaintiff files the complaint, the plaintiff
shall also lodge with the court both of the following:
(1) (A) A draft notice titled "NOTICE OF COMMENCEMENT OF
GROUNDWATER BASIN ADJUDICATION" in no less than 20-point font and the
following text printed immediately below the draft notice title in
no less than 14-point font:
"THIS NOTICE IS IMPORTANT. ANY RIGHTS YOU CLAIM TO PUMP OR STORE
GROUNDWATER FROM THE BASIN IDENTIFIED IN THIS NOTICE MAY BE AFFECTED
BY A LAWSUIT INITIATED BY THE COMPLAINT SUMMARIZED BELOW.
A copy of the complaint may be obtained by contacting the
plaintiff or the plaintiff's attorney identified in this notice. If
you claim rights to pump or store groundwater within the basin,
either now or in the future, you may become a party to this lawsuit
by filing an answer to the lawsuit on or before the deadline
specified in this notice. You may file an answer by completing the
attached form answer, filing it with the court indicated in this
notice, and sending a copy of the form answer to the plaintiff or the
plaintiff's attorney.
Failing to participate in this lawsuit could have a significant
adverse effect on any right to pump or store groundwater that you may
have. You may seek the advice of an attorney in relation to this
lawsuit. Such attorney should be consulted promptly. A case
management conference in this groundwater basin adjudication
proceeding shall occur on the date specified in this notice. If you
intend to participate in the groundwater adjudication proceeding to
which this notice applies, you are advised to attend the initial case
management conference in person or have an attorney represent you at
the initial case management conference.
Participation requires the production of all information regarding
your groundwater use. You must provide this information by the date
identified in this notice.
A form answer is provided for your convenience. You may fill out
the form answer and file it with the court. Should you choose to file
the form answer, it will serve as an answer to all complaints and
cross-complaints filed in this case."
(B) The following information shall be provided immediately
following the text described in subparagraph (A):
(i) The name of the basin that is the subject of the comprehensive
adjudication and a link to the Internet Web site address where the
department has posted a map of the basin.
(ii) A space to be completed with the case number assigned to the
comprehensive adjudication, and the name and address of the court and
department to which the action is assigned.
(iii) The name, address, telephone number, and email address of
the plaintiff, or plaintiff's attorney, from whom the complaint may
be obtained and to whom a copy of the form answer should be sent.
(iv) A summary of the causes of action alleged in the complaint
and the relief sought. The summary shall not exceed 25 lines.
(v) A date by which persons receiving the notice must appear in
the comprehensive adjudication.
(2) (A) A draft form answer titled "ANSWER TO ADJUDICATION
COMPLAINT" in no less than 20-point font and the following text
printed immediately below the draft form answer title in no less than
14-point font:
"The undersigned denies all material allegations in the complaint
or cross-complaint in this action that seeks to adjudicate rights in
the groundwater basin and asserts all applicable affirmative defenses
to that complaint."
(B) Notwithstanding any other law, the filing of an answer in the
form described in subparagraph (A) in a comprehensive adjudication is
sufficient to put at issue all material allegations and applicable
affirmative defenses to the complaint in the comprehensive
adjudication. If a party intends to seek adjustment of the basin's
boundaries, it shall disclose that intention in the form answer
described in subparagraph (A).
(b) Within 30 days of the assignment of a judge by the Chairperson
of the Judicial Council, the plaintiff shall file a motion for
approval of the draft notice and draft form answer filed pursuant to
subdivision (a). The plaintiff's motion shall include a copy of the
draft notice and draft form answer filed pursuant to subdivision (a).
(c) Once the court approves the draft notice, service of that
notice in accordance with this section shall substitute for the
summons otherwise provided for in civil actions pursuant to Section
412.20.
(d) (1) Following a court order approving the notice and form
answer and authorizing service of landowners pursuant to this
section, the plaintiff shall do all of the following:
(A) Identify the assessor parcel numbers and physical addresses of
all real property in the basin and the names and addresses of all
holders of fee title to real property in the basin using the records
of the assessor or assessors of the county or counties in which the
basin to be adjudicated lies. The plaintiff shall provide the court
and all parties with notice of its acquisition of, or sufficient
access to, this information.
(B) Mail, by registered mail or certified mail, return receipt
requested, the notice, complaint, and form answer to all holders of
fee title to real property in the basin. If the physical address of
the real property differs from the address of the holder of fee
title, the notice, complaint, and form answer shall be mailed by
registered or certified mail, return receipt requested, to the
physical address of the real property and the address of the holder
of fee title.
(C) If return receipt is not received for a parcel of real
property, the plaintiff shall post a copy of the notice, complaint,
and form answer in a conspicuous place on the real property.
(D) Within 20 days of the court order, publish the notice at least
once per week for four consecutive weeks in one or more newspapers
of general circulation in each county overlying the basin in whole or
in part.
(2) Service pursuant to this subdivision is not required if the
real property is owned by a person in a class of water users that are
otherwise noticed in accordance with this chapter. If the owner is
part of a class of water users proposed for certification, service is
not required until the court acts on the proposal for certification.
(e) After completing the mailing pursuant to subdivision (d), the
plaintiff shall file with the court a notice of the completion of the
mailing.
(f) A property owner who has received notice of the comprehensive
adjudication and transfers property during the pendency of the
comprehensive adjudication shall disclose, on the Real Estate
Transfer Disclosure Statement, that the property is subject to a
comprehensive adjudication and shall attach the court-approved notice
to the Real Estate Transfer Disclosure Statement.
(g) Following a court order authorizing service of landowners
pursuant to this section, the plaintiff shall serve any known person
that pumps groundwater who would not otherwise be served pursuant to
subdivision (d) of this section, except those who have been exempted
by the court pursuant to subdivision (d) of Section 833 or those who
are part of a class certified pursuant to paragraph (2) of
subdivision (d) of this section. Service pursuant to this subdivision
shall be by personal delivery or by mail in the manner prescribed by
Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5.
(h) Service on the United States shall be made in accordance with
Section 666 of Title 43 of the United States Code.
(i) The court may authorize any other procedures it finds
appropriate and necessary to provide notice to persons who may hold
groundwater rights in the basin.
(j) Compliance with the service and notice provisions of this
chapter shall be deemed effective service of process of the complaint
and notice on all interested parties of the comprehensive
adjudication for purposes of establishing in rem jurisdiction and the
comprehensive effect of the comprehensive adjudication.
(k) Whenever proceedings are instituted under this chapter, it
shall be the duty of all claimants interested in the proceedings and
having notice of the proceedings pursuant to this chapter to appear
in the proceedings and to submit proof of their claims at the time,
and in the manner, required by this chapter.
(l) The court may require notice to be made available in languages
other than English.
(m) Within 15 days of the court order approving the notice and
form answer, the plaintiff shall provide the notice and form answer
to the department and each county and groundwater sustainability
agency that overlies the basin or a portion of the basin. The
department, and each county and groundwater sustainability agency
that overlies the basin or a portion of the basin and has an Internet
Web site shall do all of the following:
(1) Within 15 days of receiving the notice and form answer, post
those documents on its Internet Web site.
(2) Provide a link to the notice and form answer on the home page
of its Internet Web site.
(3) Maintain the posting and link described in paragraphs (1) and
(2) for the entire time the comprehensive adjudication is pending.
The plaintiff shall notify the department and each county and
groundwater sustainability agency when the comprehensive adjudication
is no longer pending.
836.5. (a) Within 15 days of the court order approving the notice
and form answer under Section 836, the plaintiff shall request from
the following entities the names and addresses of persons reporting
extractions within the basin under the Sustainable Groundwater
Management Act, or Part 5 (commencing with Section 4999) or Part 5.2
(commencing with Section 5200) of Division 2 of the Water Code:
(1) The State Water Resources Control Board.
(2) A local agency designated under Section 5009 of the Water Code
as the local agency for a board-designated local area that includes
the basin or a portion of the basin.
(3) A groundwater sustainability agency for the basin or a portion
of the basin.
(b) The entities described in paragraphs (1) to (3), inclusive, of
subdivision (a) shall provide the plaintiff with the names, mailing
addresses, and email addresses, if available, within 45 days of the
plaintiff's request. The State Water Resources Control Board shall
also provide the mailing address and email addresses, if available,
of any person known to the board who holds a permit or license
authorizing underground storage in the basin or who claims a right to
divert water for underground storage in the basin.
(c) Upon request, the plaintiff shall reimburse the reasonable
costs incurred under this section by an entity described in
paragraphs (1) to (3), inclusive, of subdivision (a).
(d) An entity shall not be held civilly liable for complying with
this section.
Article 4. Intervention
837. (a) A groundwater sustainability agency for the basin or a
portion of the basin may intervene in a comprehensive adjudication
conducted pursuant to this chapter.
(b) A city, county, or city and county that overlies the basin or
a portion of the basin may intervene in a comprehensive adjudication
conducted pursuant to this chapter.
(c) The court shall allow any person to intervene in a
comprehensive adjudication conducted pursuant to this chapter upon an
ex parte application that demonstrates that the person holds fee
simple ownership in a parcel in the basin, or extracts or stores
water in the basin. A person filing an ex parte application pursuant
to this subdivision shall give notice to the plaintiff consistent
with the California Rules of Court.
(d) A person may apply to intervene in a comprehensive
adjudication conducted pursuant to this chapter pursuant to Section
387.
Article 5. Judge
838. (a) (1) In a comprehensive adjudication conducted pursuant
to this chapter, a judge of a superior court of a county that
overlies the basin or any portion of the basin shall be disqualified.
The Chairperson of the Judicial Council shall assign a judge to
preside in all proceedings in the comprehensive adjudication.
(2) A judge of the superior court in which an action is filed may,
on the court's own motion or the motion of a party, determine if the
action is a comprehensive adjudication under Section 833. A motion
for a determination pursuant to this paragraph shall receive calendar
preference within the action and shall be resolved before other
procedural or dispositive motions.
(b) A comprehensive adjudication is presumed to be a complex
action under Rule 3.400 of the California Rules of Court.
(c) Sections 170.6 and 394 shall not apply in a comprehensive
adjudication.
(d) Notwithstanding subdivision (b) of Section 10726.6 of the
Water Code, an action against a groundwater sustainability agency
that is located in a basin that is being adjudicated pursuant to this
chapter shall be subject to transfer, coordination, and
consolidation with the comprehensive adjudication, as appropriate, if
the action concerns the adoption, substance, or implementation of a
groundwater sustainability plan, or the groundwater sustainability
agency's compliance with the timelines in the Sustainable Groundwater
Management Act.
(e) The judge assigned by the Chairperson of the Judicial Council
pursuant to subdivision (a) shall determine if transfer,
coordination, or consolidation is appropriate.
Article 6. Electronic Service
839. Service of pleadings and papers in a comprehensive
adjudication, other than the complaint initiating a comprehensive
adjudication, shall occur electronically to the greatest extent
possible. The court may provide, or authorize the use of, an
electronic service system. If an electronic service system is not
provided or authorized by the court, the court and the parties shall
serve documents by email or other equivalent electronic means to the
greatest extent possible. To enable electronic service of pleadings
and papers, the attorneys of record or parties representing
themselves shall include an email address for service in the captions
of all pleadings they file in the comprehensive adjudication.
Article 7. Case Management
840. (a) In managing a comprehensive adjudication, the court
shall convene a case management conference as provided by the
California Rules of Court.
(b) In an initial case management conference, or as soon as
practicable, the court may consider the following in addition to
other matters:
(1) Determining whether to seek adjustment of the basin boundaries
pursuant to Section 841.
(2) Staying the action pursuant to Section 848.
(3) Appointing a special master pursuant to Section 845.
(4) Scheduling a hearing on a preliminary injunction pursuant to
Section 847.
(5) Dividing the case into phases to resolve legal and factual
issues.
(6) Issuing orders to ensure that issues resolved in one phase are
not relitigated in another phase.
(7) Limiting discovery to correspond to the phases.
(8) Scheduling early resolution of claims to prescriptive rights.
(9) Forming a class or classes of overlying groundwater rights
holders pursuant to the criteria specified in Section 382.
Article 8. Basin Boundaries
841. (a) Except as otherwise provided in this section, the
boundaries of the area subject to a comprehensive adjudication shall
be consistent with the boundaries of a basin.
(b) If the department revises the boundaries of a basin pursuant
to Section 10722.2, or subdivision (b) of Section 12924, of the Water
Code after a comprehensive adjudication has been initiated, the
court may revise the boundaries of the area subject to the
comprehensive adjudication as the interests of justice and the
objectives of this chapter require.
(c) Upon a showing that a revision of the basin boundaries would
further a fair and effective determination of water rights, the court
may direct any of the following to submit a request to the
department pursuant to Section 10722.2 of the Water Code to revise
the basin boundaries:
(1) A party to the comprehensive adjudication.
(2) The State Water Resources Control Board, if the court has made
a reference pursuant to Part 3 (commencing with Section 2000) of
Division 2 of the Water Code.
(3) A special master, if one has been appointed.
(d) A determination of the department on a submission made
pursuant to subdivision (c) is subject to judicial review pursuant to
Section 1085. Venue shall be in the court with jurisdiction over the
comprehensive adjudication and the case shall be coordinated with
the comprehensive adjudication.
Article 9. Initial Disclosures
842. (a) Except as otherwise stipulated by the parties or ordered
by the court, within six months of appearing in a comprehensive
adjudication, a party shall serve on the other parties and the
special master, if one is appointed, an initial disclosure that
includes all of the following information:
(1) The name, address, telephone number, and email address of the
party and, if applicable, the party's attorney.
(2) The quantity of any groundwater extracted from the basin by
the party and the method of measurement used by the party or the
party's predecessor in interest for each of the previous 10 years
preceding the filing of the complaint.
(3) The type of water right or rights claimed by the party for the
extraction of groundwater.
(4) A general description of the purpose to which the groundwater
has been put.
(5) The location of each well or other source through which
groundwater has been extracted.
(6) The area in which the groundwater has been used.
(7) Any claims for increased or future use of groundwater.
(8) The quantity of any beneficial use of any alternative water
use that the party claims as its use of groundwater under any
applicable law, including, but not limited to, Section 1005.1,
1005.2, or 1005.4 of the Water Code.
(9) Identification of all surface water rights and contracts that
the party claims provides the basis for its water right claims in the
comprehensive adjudication.
(10) The quantity of any replenishment of water to the basin that
augmented the basin's native water supply, resulting from the
intentional storage of imported or non-native water in the basin,
managed recharge of surface water, or return flows resulting from the
use of imported water or non-native water on lands overlying the
basin by the party, or the party's representative or agent, during
each of the 10 calendar years immediately preceding the filing of the
complaint.
(11) The names, addresses, telephone numbers, and email addresses
of all persons possessing information that supports the party's
disclosures.
(12) Any other facts that tend to prove the party's claimed water
right.
(b) The Judicial Council may develop a form for initial
disclosures made pursuant to subdivision (a) to facilitate the
consistent, independent, impartial, and accessible administration of
comprehensive adjudications. The Judicial Council may coordinate with
the department in developing the form.
(c) A party shall make its initial disclosures based on the
information then reasonably available to it. A party is not excused
from making its initial disclosures because it has not fully
investigated the case, because it challenges the sufficiency of
another party's disclosures, or because another party has not made
its disclosures.
(d) A party that has made its initial disclosures, as described in
subdivision (a), or that has responded to another party's discovery
request, shall supplement or correct a disclosure or response in all
of the following situations:
(1) In a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect and the
additional or corrective information has not otherwise been made
known to the other parties during the disclosure or discovery
process.
(2) If the party extracts groundwater from the basin after the
complaint is filed. A supplement filed pursuant to this paragraph
shall report the quantity of water extracted and be filed within 90
days after the end of the calendar year.
(3) As ordered by the court.
(e) To the greatest extent possible, a party shall serve his or
her initial disclosures electronically. If it is not possible for the
party to serve his or her disclosures electronically, he or she
shall serve the disclosures in an electronic format saved on a
portable storage media device such as a compact disc or flash drive.
(f) A party's obligations under this section may be enforced by a
court on its own motion or the motion of a party to compel
disclosure.
(g) A party's disclosures under this section shall be verified
under penalty of perjury as being true and correct to the best of the
party's knowledge.
Article 10. Expert Witnesses
843. (a) In addition to all 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 by the parties or ordered by the
court, the disclosure made pursuant to subdivision (a) shall be
accompanied by a written report prepared and signed by the expert
witness if the witness is retained or specially employed by the party
offering the expert witness to testify as an expert in the action,
or if the expert witness's duties as the party's employee regularly
involves giving expert testimony. The report shall include all of the
following:
(1) A complete statement of all opinions the witness will express
and the basis and reasons for those opinions.
(2) The facts or data considered by the witness in forming his or
her opinions.
(3) Any exhibits the witness will use to summarize or support his
or her opinions.
(4) The witness's qualifications, including a list of all
publications authored by the witness in the previous 10 years.
(5) A list of all other cases in which the witness testified as an
expert at trial or by deposition in the last five years.
(6) A statement of the compensation to be paid for the witness's
work and testimony in the comprehensive adjudication.
(c) If subdivision (b) does not apply to an expert witness because
of a stipulation by the parties or an order of the court, the
witness's disclosure shall include both of the following:
(1) The subject matter on which the witness is expected to present
evidence.
(2) A summary of the witness's opinions, and the facts or data
considered by the witness in forming his or her opinions.
(d) Unless otherwise stipulated by the parties, a party shall make
the disclosures of any expert witness it intends to present at
trial, except for an expert witness presented solely for purposes of
impeachment or rebuttal, at the times and in the sequence ordered by
the court. If there is no stipulation or court order, the disclosures
of an expert witness shall be made as follows:
(1) At least 30 days after the court's entry of an order
establishing the scope of the relevant phase of the comprehensive
adjudication.
(2) Except for a supplemental expert witness described in
paragraph (3), at least 60 days before the date set for trial of the
relevant phase of the comprehensive adjudication.
(3) For a supplemental expert witness who will express an opinion
on a subject to be covered by another expert witness designated by an
adverse party that was not among the subjects covered by an expert
witness initially disclosed by the party offering the supplemental
expert witness, no more than 20 days after the initial expert witness
disclosure date.
(e) The court may modify the disclosure requirements of
subdivisions (b) to (d), inclusive, for expert witnesses presented
solely for purposes of impeachment or rebuttal. In modifying the
disclosure requirements, the court shall adopt disclosure
requirements that expedite the court's consideration of the issues
presented and shall ensure that expert testimony presented solely for
purposes of impeachment or rebuttal is strictly limited to the scope
of the testimony that it intends to impeach or rebut.
(f) (1) A party whose expert witness has made a disclosure
pursuant to this section shall promptly supplement or correct the
expert witness's disclosure in either of the following instances:
(A) In a timely manner if the party learns that in some material
respect the disclosure is incomplete or incorrect, if the additional
or corrective information has not otherwise been made known to the
other parties during the disclosure or discovery process.
(B) As ordered by the court.
(2) A party's duty to supplement or correct its expert witness's
disclosure includes the information included in the report and the
information given during the expert witness's deposition. Unless
otherwise stipulated by the parties or ordered by the court, any
supplementation or correction shall occur at least 14 days before
trial of the applicable phase of the comprehensive adjudication.
(3) The court may authorize a supplemental deposition of an expert
witness based on a supplemental disclosure made pursuant to this
subdivision. The court shall appropriately condition the
authorization of a supplemental deposition of an expert witness to
ensure the expeditious completion of the applicable phase of the
comprehensive adjudication. The court may require the party whose
expert makes the supplemental disclosure to pay some or all of the
costs associated with the supplemental deposition.
(g) To the greatest extent possible, the parties shall serve
expert witness disclosures electronically through an electronic
service system, an electronic document repository, email, or another
method of electronic transmission. If it is not possible for the
party to serve his or her expert witness disclosures electronically,
he or she shall serve the expert witness disclosures in an electronic
format saved on a portable storage media device such as a compact
disc or flash drive.
Article 11. Written Testimony
844. (a) A court may require the parties in a comprehensive
adjudication to submit written testimony of relevant witnesses in the
forms of affidavits or declarations under penalty of perjury in lieu
of presenting live testimony. The required written testimony may
include, but is not limited to, expert witness opinions and testimony
that authenticates documentary evidence. The court may order that
the written testimony constitutes the entirety of the witness's
direct testimony, require the written testimony to include any
exhibits offered in support of the written testimony, and, in the
case of written testimony of an expert witness, require a statement
of the witness's qualifications.
(b) If the court requires the submission of written testimony
pursuant to subdivision (a), a complete copy of the direct testimony
shall be served at least 21 days before trial. A complete copy of any
rebuttal testimony shall be served no later than the first day of
trial.
(c) If the contents of the written testimony would have been
admissible if the witness testified orally, the written testimony
shall be received by the court as a documentary exhibit if the
witness whose written testimony is being offered is made available
for cross-examination by all parties.
Article 12. Special Master
845. (a) The court may appoint one or more special masters whose
duties may include the following:
(1) Investigating technical and legal issues, as directed by the
court. The special master shall compile a report of findings in
accordance with Section 846.
(2) Conducting joint factfinding with the parties, their
designees, or both.
(3) Investigating the need for, and developing a proposal for, a
preliminary injunction pursuant to Article 13 (commencing with
Section 847).
(4) Performing other tasks the court may deem appropriate.
(b) The court shall fix the special master's compensation on the
basis and terms stated in the appointing order, and the court may set
a new basis and new terms after giving the parties notice and an
opportunity to be heard. The court shall allocate payment of the
special master's compensation among the parties in an amount and a
manner that the court deems equitable. The court may waive a party's
obligations to pay the special master's compensation upon a showing
of good cause.
(c) The court may request the State Water Resources Control Board
or the department to recommend candidates for appointment as a
special master or to review the qualifications of candidates.
(d) This section does not limit the authority of the court to make
a reference pursuant to Chapter 1 (commencing with Section 2000) of
Part 3 of Division 2 of the Water Code.
(e) This section does not limit the authority to appoint a
watermaster pursuant to Chapter 3 (commencing with Section 4050) of
Part 4 of Division 2 of the Water Code or any other law.
846. (a) The special master shall make a draft report available
to the parties and provide at least 60 days for the parties to submit
written objections to the draft report.
(b) An objection to the draft report shall identify the specific
grounds and evidence on which the objection is based.
(c) The special master may notice and hold hearings, as he or she
deems appropriate, to gather information or address issues raised in
the objections to the draft report.
(d) The special master shall consider the objections to the draft
report and develop a final report that shall be filed with the court,
together with supporting evidence.
Article 13. Preliminary Injunction
847. (a) Upon a showing that the basin is in a condition of
long-term overdraft, the court may, upon notice and hearing, issue a
preliminary injunction.
(b) Bulletins and other reports of the department, and a report of
a special master indicating that a condition of long-term overdraft
exists in the basin, shall be admissible as evidence of a condition
of long-term overdraft. This subdivision does not limit the
admissibility of other relevant evidence.
(c) The preliminary injunction may include any of the following
terms:
(1) A moratorium on new or increased appropriations of water.
(2) A limitation on, or reduction in, the diversion or extraction
of water.
(3) An allocation among the parties establishing amounts of
extraction allowed during the pendency of the comprehensive
adjudication.
(4) Procedures for voluntary transfers.
(d) The court shall issue a preliminary injunction upon
determining all of the following:
(1) The basin is in a condition of long-term overdraft.
(2) The basin has been designated as a probationary basin or the
planning deadlines in subdivision (a) of Section 10720.7 of the Water
Code are not being complied with.
(3) There is no interim plan in effect under Section 10735.8 of
the Water Code.
(e) The court may provide a schedule for further reductions in
extractions over a period of years if it finds that doing so appears
reasonably necessary to achieve groundwater sustainability within the
timelines provided in subdivision (b) of Section 10727.2 of the
Water Code.
(f) The terms of a preliminary injunction shall not determine the
rights in a final judgment of the comprehensive adjudication.
(g) A bond or undertaking shall not be required for the issuance
of a preliminary injunction pursuant to this section.
(h) The court may appoint a watermaster to oversee enforcement of
the preliminary injunction.
Article 14. Stay
848. (a) Upon the court's own motion or the motion of any party
to a comprehensive adjudication, a court may stay a comprehensive
adjudication for a period of up to one year, subject to renewal in
the court's discretion upon a showing of good cause, in order to
facilitate any of the following:
(1) Adoption of a groundwater sustainability plan that provides
for a physical solution or otherwise addresses issues in the
comprehensive adjudication.
(2) The development of technical studies that may be useful to the
parties in the comprehensive adjudication.
(3) Voluntary mediation or participation in a settlement
conference on all, or a portion of, the subject matters or legal
questions identified in the comprehensive adjudication.
(4) Compromise and settlement of the comprehensive adjudication or
issues in the comprehensive adjudication.
(b) Before renewing a stay granted pursuant to subdivision (a),
the parties shall report on the progress being made on the issues
that were identified as the reasons for the stay.
(c) A stay pursuant to this section shall not stay, or otherwise
delay, the parties' obligations to provide initial disclosures
pursuant to Section 842 unless the court determines the initial
disclosures will not benefit resolution of the comprehensive
adjudication.
Article 15. Physical Solution
849. (a) The court shall have the authority and the duty to
impose a physical solution on the parties in a comprehensive
adjudication where necessary and consistent with Article 2 of Section
X of the California Constitution.
(b) Before adopting a physical solution, the court shall consider
any existing groundwater sustainability plan or program.
Article 16. Judgment
850. (a) The court may enter a judgment if the court finds that
the judgment meets all of the following criteria:
(1) It is consistent with Section 2 of Article X of the California
Constitution.
(2) It is consistent with the water right priorities of all
non-stipulating parties and any persons who have claims that are
exempted pursuant to Section 833 in the basin.
(3) It treats all objecting parties and any persons who have
claims that are exempted pursuant to Section 833 equitably as
compared to the stipulating parties.
(b) If a party or group of parties submits a proposed stipulated
judgment that is supported by more than 50 percent of all parties who
are groundwater extractors in the basin or use the basin for
groundwater storage and is supported by groundwater extractors
responsible for at least 75 percent of the groundwater extracted in
the basin during the five calendar years before the filing of the
complaint, the court may adopt the proposed stipulated judgment, as
applied to the stipulating parties, if the proposed stipulated
judgment meets the criteria described in subdivision (a). A party
objecting to a proposed stipulated judgment shall demonstrate, by a
preponderance of evidence, that the proposed stipulated judgment does
not satisfy one or more criteria described in subdivision (a) or
that it substantially violates the water rights of the objecting
party. If the objecting party is unable to make this showing, the
court may impose the proposed stipulated judgment on the objecting
party. An objecting party may be subject to a preliminary injunction
issued pursuant to Section 847 while his or her objections are being
resolved.
Article 17. Judgment Binding on Successors
851. The judgment in a comprehensive adjudication conducted
pursuant to this chapter shall be binding on the parties to the
action and all their successors in interest, including, but not
limited to, heirs, executors, administrators, assigns, lessees,
licensees, the agents and employees of the parties to the action and
all their successors in interest, and all landowners or other persons
claiming rights to extract groundwater from the basin whose claims
have not been exempted and are covered by the notice provided in the
comprehensive adjudication.
Article 18. Continuing Jurisdiction
852. The court shall have continuing jurisdiction to modify or
amend a final judgment in a comprehensive adjudication in response to
new information, changed circumstances, the interests of justice, or
to ensure that the criteria of subdivision (a) of Section 850 are
met. When feasible, the judge who heard the original action shall
preside over actions or motions to modify or amend the judgment.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.
SEC. 3. This act shall only become effective if Senate Bill 226 of
the 2014-15 Regular Session is enacted and becomes effective.
