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Bills passed by the California Legislature in the 2015-2016 Regular Session provide for streamlined groundwater adjudications and meaningful amendments to the 2014 Sustainable Groundwater Management Act (SGMA).  In general, SGMA requires the establishment of Groundwater Sustainability Agencies (GSA) tasked with the development of Groundwater Sustainability Plans (GSP) in groundwater basins designated as medium or high priority.  (For more information about SGMA, please see article entitled Groundwater Legislation Moves to Governor’s Desk.)  Senate Bill 13 (SB 13), which Governor Brown signed into law on September 3, 2015, provides clarifications to language and procedural adjustments to SGMA.  Following enactment of SB 13, Assembly Bill 1390 (AB 1390) and Senate Bill 226 (SB 226) provide procedures for comprehensive groundwater adjudications.  AB 1390 and SB 226 await Governor Brown’s signature but all indications suggest the bills will soon become law.  This alert provides a brief summary of the main components of each bill and consequences for groundwater users statewide.

Senate Bill 13

SB 13 authorizes the State Water Resources Control Board (State Board) to designate high or medium priority basins, as defined in SGMA, as “probationary basins.”  A probationary basin is one that lacks an adequate GSP.  A local agency or GSA has 90-180 days to correct the deficiencies that caused the State Board to make the probationary designation.  SB 13 authorizes water corporations formed by the Public Utilities Commission and mutual water companies to participate in the GSA by memorandum of agreement or some other legal agreement.  SB 13 provides that “local agencies shall seek to reach agreement to allow prompt designation of a groundwater sustainability agency.”  In the event that two or more local agencies or groups of local agencies submit notification to become a GSA for the same or overlapping service area within the same 90-day period, the decision to form the GSA shall not take effect until notification of one of the proposed GSAs is withdrawn or the notifications are modified to eliminate overlap.  SB 13 streamlines certain SGMA procedures, in part by exempting from the Administrative Procedure Act guidelines, criteria, bulletins or other technical or procedural analyses, or guidance prepared by Department of Water Resources (DWR).

Assembly Bill 1390

AB 1390 adds to the California Code of Civil Procedure (CCP) the method and procedure for comprehensive groundwater adjudications.  The bill defines “comprehensive adjudication” as “an action filed in superior court to comprehensively determine rights to extract groundwater in a basin.”  It provides that a court may determine all the groundwater rights of a basin, including rights based on appropriation, overlying rights, or any other basis of right and use of groundwater storage space within a basin.  The court’s final judgment in such adjudications may declare each of the elements of a groundwater user’s right, including priority, amount, purpose of use, location of extraction, and place of use.  Moreover, the court may issue appropriate injunctive relief in the event of long-term groundwater overdraft and may also implement a physical solution.  The bill provides a procedure for groundwater users to settle an adjudication proceeding via stipulated judgments.  Any judgment in a comprehensive adjudication is binding on all parties and their successors.  Overall, AB 1390 seeks to streamline groundwater adjudications, which under existing law are both costly and time-consuming.

Senate Bill 226

SB 226 adds to the CCP a provision allowing the State to intervene in comprehensive adjudications, and amends the California Water Code to provide legislative guidance to ensure the consistency of groundwater adjudications with SGMA objectives.  Noteworthy provisions of SB 226 require a court conducting an adjudication to avoid interference with timely completion and implementation of a GSP and to manage the proceedings in a manner that is consistent with the timeframes for groundwater sustainability established by SGMA.  It further allows the court to direct an entity to request that the DWR revise the boundaries of a groundwater basin should the need arise.  Finally, SB 226 prohibits a court from approving a judgment in an adjudication that will substantially impair the ability of a GSA or other entity to comply with SGMA and achieve its goals of sustainable groundwater management.

The Legislature passed both AB 1390 and SB 226 on the grounds that each would only be enacted if the other were also enacted, and they currently await Governor Brown’s signature.

For more information about SGMA and recent amendments, please contact Richard S. Deitchman at (916) 446 7979 or rdeitchman@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.