Last week, the California Legislature passed two bills, Assembly Bill 1390 (“AB 1390”) and Senate Bill 226 (“SB 226”) that streamline comprehensive adjudications of rights in a groundwater basin statewide. The bills are contingent upon each other, meaning that both must become law for either to be enforced. Both bills are with Governor Brown for review.

(1)   Background

At the end of the 2013 – 2014 Legislative session, the California Legislature passed the Sustainable Groundwater Management Act (“SGMA”). As part of the Governor’s signing statement associated with SGMA, the Governor called on the Legislature to pass follow up legislation to implement a system to streamline the process for adjudicating groundwater basins statewide. AB 1390 and SB 226 answer that call.

(2)   AB 1390

AB 1390 adds a new chapter to the Code of Civil Procedure to streamline the process of a comprehensive adjudication of rights in a groundwater basin. The procedures contained in that new chapter apply to all groundwater basins in the state, whether or not they are subject to the requirements of SGMA. These streamlined procedures cover the entire course of litigation, addressing the commencement of an action all the way through litigation to the appointment of a special master to monitor and report the compliance of all parties with the settlement or judgment of rights in the groundwater basin.

(3)   SB 226

SB 226 is a more focused bill and amends SGMA, as codified in the Water Code, to address the early phases of litigation in a SGMA governed groundwater basin. SGMA applies to the 127 groundwater basins identified as high and medium priority under SGMA. This covers all but roughly four percent (4%) of the state’s groundwater use. Therefore most groundwater users will be subject to the pre-trial requirements under SB 226 in addition to the more comprehensive requirements under AB 1390.

SB 226 contains a number of provisions to expedite the pre-trial process. It (1) streamlines notice and service requirements for stakeholders in a groundwater basin, (2) requires initial disclosures of information such as designating expert witnesses, and (3) permits the Department of Water Resources and the Department of Fish and Wildlife to intervene as parties to the litigation. These requirements will ensure that a comprehensive groundwater basin adjudication can move through the litigation process expeditiously and not delay the SGMA implementation process.

AB 1390 and SB 226 establish a system that will be used to ensure that comprehensive groundwater basin adjudications are no longer the complex, expensive, and long term legal battle that are currently required to determine groundwater rights. The legislative reports associated with AB 1390 cite two examples of groundwater basin adjudications that took 15 years to complete. The process included in the bills is an effort to avoid that in the future.

If you have any questions relevant to the AB 1390, SB 226, or SGMA generally, please contact Barbara Brenner at barbara@whitebrennerllp.com.