The following article was original published in the San Francisco Daily Journal on January 20, 2016. © 2016 Daily Journal Corporation. Reprinted with permission. 

New Laws Supplement: AB 1390 & SB 226: More groundwater

By David M. Metres

Last October, Gov. Jerry Brown signed into law two bills designed to make groundwater disputes easier and faster to resolve in court.

Companion bills Assembly Bill 1390 and Senate Bill 226 are intended to streamline California's onerous groundwater adjudication process that can drag on for decades. These courtroom adjudications comprehensively establish groundwater right allocations for all users in a covered groundwater basin.

There are at least 20 adjudicated groundwater basins in California, but the multi-year adjudication process discourages efforts to comprehensively establish groundwater rights in new locations. For example, the initial complainant in the Upper Los Angeles River Area adjudication filed its complaint in 1955, but the adjudication process was not completed until 1979. Further, every affected groundwater right holder in a subject basin must receive notice, which results in huge numbers of named parties and unwieldy litigation. The recently concluded Antelope Valley adjudication had over 70,000 parties.

These new groundwater adjudication laws enact procedural devices intended to address these issues and accelerate the groundwater adjudication process, while ensuring that courtroom adjudications do not interfere with California's groundbreaking 2014 groundwater management legislation known as the Sustainable Groundwater Management Act (SGMA).

Streamlining Procedures

The laws streamline procedures for conducting comprehensive groundwater adjudications. Specifically, the new laws:

  • Formalize a rapid process for providing notice to all parties affected by a groundwater adjudication.
  • Authorize both groundwater sustainability agencies - the local agencies designated by SGMA as responsible for devising groundwater sustainability plans - and the California attorney general to intervene in adjudication proceedings.
  • Require an early case management conference aimed at speeding up the litigation. This case management conference must consider the following procedural devices: (1) identify whether groundwater basin boundaries should be adjusted, (2) appoint a special master, (3) schedule a hearing on a preliminary injunction, if necessary, (4) divide the case into phases to resolve legal and factual issues, (5) limit discovery to correspond to the phasing, (6) schedule an early resolution of claims to prescriptive rights, and (7) form classes of overlying groundwater rights holders to further facilitate adjudication.
  • Mandate that all parties submit initial disclosures within six months of appearing in court that identify the quantity of groundwater extracted from the basin for each of the previous 10 years, the location of each groundwater extraction well, and the use to which this groundwater has been applied.
  • Authorize the court to issue a preliminary injunction that could include a moratorium on new or increased groundwater extraction.
  • Require courts overseeing comprehensive groundwater adjudications to manage the proceedings so as to minimize interference with the timely completion of the groundwater sustainability plan required by SGMA and to otherwise be consistent with the technical requirements and deadlines imposed by SGMA.

Likely Litigation

With vastly increased groundwater pumping prompted by California's historic drought, the new laws come at a key juncture. The groundwater adjudication process has not been used to its full potential in part because of the specter of multi-decade litigation affecting thousands of parties. The new laws are intended to build on SGMA and improve on existing tools to effectively manage groundwater resources throughout California. At a minimum, the new groundwater adjudication laws will significantly affect the process for determining water rights across California. But if effective, the new laws will also reduce procedural hurdles and costs associated with litigating all groundwater rights in a basin.

David M. Metres is an associate with Barg Coffin Lewis & Trapp LLP in San Francisco. You can reach him at [email protected].