Preview
1 Kimberly Pallen (SBN 288605)
kimberly.pallen@withersworldwide.com
2 Christopher N. LaVigne (NYBN 4811121) ELECTRONICALLY
(admitted Pro Hac Vice)
3 christopher.lavigne@withersworldwide.com FILED
Superior Court of California,
Withers Bergman LLP County of San Francisco
4 505 Sansome Street, 2nd Floor
San Francisco, California 94111 03/15/2021
Clerk of the Court
5 Telephone: 415.872.3200 BY: RONNIE OTERO
Facsimile: 415.549 2480 Deputy Clerk
6
Attorneys for Defendants Payward, Inc., a
7 California Corporation d/b/a Kraken; and Kaiser
NG, an individual
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
11
12 NATHAN PETER RUNYON, an individual, Case No. CGC-19-581099
13 Plaintiff, DECLARATION OF KIMBERLY A.
PALLEN IN SUPPORT OF OPPOSITION
14 v. TO EX PARTE APPLICATION FOR
ORDER SHORTENING TIME FOR
15 PAYWARD, INC., a California Corporation PLAINTIFF NATHAN PETER
d/b/a KRAKEN; and Kaiser NG, an RUNYON’S NOTICE OF MOTION TO
16 individual; and DOES 1 through 10, inclusive, APPOINT A SPECIAL MASTER
17 Defendants. Filed Concurrently with Opposition to Ex
Parte Application
18
Date: March 11, 2021
19 Time: 11:00 a.m.
Dept.: 206
20
The Hon. Samuel K. Feng, Dept. 206
21
Action Filed: November 26, 2019
22 Trial Date: July 12, 2021
23
24 I, KIMBERLY A. PALLEN, declare as follows:
25 1. The facts stated in this declaration are based on my personal knowledge, and, if called
26 to testify, I could and would competently testify to them. I submit this declaration pursuant to
27 California Code of Civil Procedure § 2016.040.
28 2. I am an attorney duly licensed to practice law in the State of California. I am an
NY28571/0001-US-9056714/2
W ITHERS
B ERGMAN LLP DECLARATION OF KIMBERLY A. PALLEN IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION
FOR ORDER SHORTENING TIME
1 attorney at the law firm of Withers Bergman LLP, counsel for Defendants Payward, Inc., d/b/a
2 Kraken (“Payward”) and Kaiser Ng (together with Payward, “Defendants”) in the above-entitled
3 matter.
4 3. Attached hereto as Exhibit A is a true and correct copy of California Committee
5 Report for 2015 California Assembly Bill No. 1390, of the California 2015-2016 Regular Session.
6 I declare under penalty of perjury under the laws of the State of California that the foregoing
7 is true and correct, except as to matters stated on information and belief and as to those matters, I
8 believe them to be true.
9 Executed this 15th day of March, 2021 at San Francisco, California.
10
11
Kimberly Pallen
12 Attorneys for Plaintiff Payward, Inc.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NY28571/0001-US-9056714/2 2
W ITHERS
B ERGMAN LLP DECLARATION OF KIMBERLY A. PALLEN IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION
FOR ORDER SHORTENING TIME
EXHIBIT A
2015 California Assembly Bill No. 1390, California..., 2015 California...
2015 CA A.B. 1390 (NS)
2015 California Assembly Bill No. 1390, California 2015-2016 Regular Session
CALIFORNIA COMMITTEE REPORT
VERSION: General
September 09, 2015
Version Date September 09, 2015
Alejo, Gomez, and Perea (Principal coauthors: Gray, Olsen, and Salas) (Principal coauthors: Senators Cannella, Hueso, Pavley,
and Vidak) (Coauthors: Cooley, Cooper, Eggman, Frazier, Levine, Mathis, Ridley-Thomas, Wilk, and Wood) (Coauthors:
Senators Fuller and Galgiani).
TEXT:
BILL ANALYSIS
AB 1390
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1390 (Alejo, et al.)
As Amended September 4, 2015
Majority vote
-------------------------------------------------------------------- |ASSEMBLY: |76-0 |(May 26, 2015) |SENATE: |40-0 |(September 9,
| | | | | | |2015) | | | | | | | | | | | | | | | --------------------------------------------------------------------
Original Committee Reference: W., P., & W.
SUMMARY: Adds a new Chapter 7 to Title 10 of Part 2 of the Code of Civil Procedure (new CCP provisions) that establish
methods and procedures for comprehensive groundwater adjudications.
The Senate amendments:
1)Require that comprehensive adjudications are conducted consistently with existing laws, including the following:
a) Achievement of groundwater sustainability within the timeframes of the Sustainable Groundwater Management Act (SGMA).
b) Federal laws regarding the determination of federal or
AB 1390
Page 2 tribal water rights, as applicable.
c) Existing law determining and establishing the priority of unexercised groundwater rights.
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1
2015 California Assembly Bill No. 1390, California..., 2015 California...
d) Other provisions of the Code of Civil Procedure to the extent they do not conflict with the new CCP provisions.
2)Allow a waiver of court fees and costs for eligible applicants with insufficient economic means, as specified, consistent with
existing law.
3)Exempt specified groundwater rights actions that do not rise to the level of a comprehensive adjudication.
4)Allow joinder of persons who claim rights to divert and use water from interconnected surface water bodies or subterranean
streams flowing through known and definite channels if the court finds such joinder is necessary for the fair and effective
determination of the groundwater rights in a basin.
5)Allow a court to exempt parties extracting or diverting five acre-feet or less of water if those parties do not wish to participate
in the adjudication and exempting them would not have a material effect on the groundwater rights of other parties.
6)Add specificity to how notification of the comprehensive adjudication shall be conducted and broaden the list of persons who
shall receive notice of the comprehensive adjudication to include, for example, SGMA groundwater sustainability agencies
(GSAs), persons from an interested parties list established under SGMA, California Native American tribes, and others, as
specified.
AB 1390
Page 3
7)Require, within 15 days of the court order approving both the notice for the adjudication and a form answer that can be used
in response to the notice, that the plaintiff in the adjudication request names and addresses of persons reporting groundwater
extractions to the State Water Resources Control Board (State Water Board) and any GSA in the basin.
8)Refine the entities allowed to intervene by adding the following that overlie a basin or a portion of the basin: a GSA, a city,
county or both. In accordance with existing law allows a person to apply to intervene who has an interest in the matter in
litigation, or in the success of either of the parties, or an interest against both.
9)Disqualify the judge of a superior court of a county that overlies the basin or any portion of the basin and allow the Judicial
Council to assign a judge to preside in all proceedings for the comprehensive adjudication.
10)Consolidate, if appropriate, any action against a GSA in the basin with the comprehensive adjudication if the action concerns
the adoption, substance, or implementation of the GSA's groundwater sustainability plan (GSP) or the GSA's compliance with
SGMA timelines.
11)Refine procedures that take in to account actual or proposed groundwater basin boundary changes, either in response to
boundary changes by the Department of Water Resources (DWR) or by the court directing a party, as specified, to submit a
request for a change to DWR. Specifies DWR's basin boundary changes are subject to judicial review.
12)Refine service of process in a comprehensive adjudication.
13)Refine the initial disclosures that parties to an
AB 1390
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2
2015 California Assembly Bill No. 1390, California..., 2015 California...
Page 4 adjudication must share with one another to establish the scope and basis of their claims to groundwater, including any
use of expert witnesses.
14)Refine the requirements for proposed stipulated judgments supported by more than 50% of the parties who are groundwater
extractors in the basin or use the basin for groundwater storage and to be supported by groundwater extractors responsible for
at least 75% of the groundwater extracted in the basin during the preceding five years before the filing of the complaint.
15)Make other technical and conforming changes.
16)Is operative only if SB 226 (Pavley) of the current legislative session is also enacted and becomes effective.
EXISTING LAW:
1)Expresses the state's regulatory and supervisory authority over all waters in the state, surface and underground, by declaring
that all waters in the state are property of the people of the State, while recognizing that rights may be acquired to the use of water.
2)Establishes background principles that apply to all water diversion and use, including the Constitutional prohibition against
waste, unreasonable use, unreasonable method of diversion or unreasonable method of use.
3)Allows a party with rights to extract and use water in a groundwater basin to initiate a lawsuit so the court can decide the
groundwater rights of all parties overlying the basin and others who may export water out the basin.
AB 1390
Page 5
4)Empowers the court to decide who the extractors are, how much groundwater those well owners can extract, and who will
ensure that the basin is managed according to the court's decree (generally called a "watermaster"), including periodically
reporting to the court.
5)Requires DWR to prioritize California's groundwater basins in order to focus state resources. The basins are prioritized as
either high, medium, low, or very low based on a combination of factors including, but not limited to, overlying population,
level of dependence for urban and agricultural water supplies, and impacts on the groundwater from overdraft, subsidence,
saline water intrusion, and water quality degradation.
6)Allows a local agency to file a request with DWR to revise groundwater basin boundaries.
7)Requires, by June 30, 2017, that local agencies form one or more GSAs in all high and medium priority basins subject to
SGMA for the purpose of developing and adopting GSPs or submit existing groundwater management plans or adjudications
that DWR determines are functionally equivalent to SGMA GSPs.
8)Requires, by January 31, 2020, that GSAs in all critically overdrafted high and medium priority basins develop and adopt
GSPs that provide for the sustainable management of the groundwater basin, as defined.
9)Requires, by January 31, 2022, that GSAs in all other high and medium priority basins subject to SGMA develop and adopt
GSPs.
10)Allows the State Water Board to impose an interim plan for management of a groundwater basin if no GSA is formed by
the deadline, no GSP is adopted by the appropriate deadline, or a
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 3
2015 California Assembly Bill No. 1390, California..., 2015 California...
AB 1390
Page 6
GSP is adopted which DWR deems insufficient and where the basin is in a chronic condition of overdraft or in a condition
where groundwater pumping is causing a significant depletion of interconnected surface waters.
FISCAL EFFECT: According to the Senate Appropriations Committee, there will be an unknown reduction in costs to the
General Fund for the courts.
COMMENTS: This bill creates a new chapter in the Code of Civil Procedure that will streamline comprehensive groundwater
adjudications. This bill has also been carefully crafted to take into consideration how comprehensive adjudications will be
conducted in basins subject to SGMA. For that reason, this bill and SB 226 are contingent on the enactment of each other. This
bill sets out the general provisions for streamlining groundwater adjudications that would be applicable to any basin. SB 226
relies on the new CCP provisions created by this bill but then sets out additional standards and procedures for the court to apply
in basins that are subject to SGMA in order to ensure minimal interference with GSP development and maintain consistency
with SGMA objectives.
It is undisputable that groundwater adjudications are lengthy, complicated, and expensive. An adjudication is when multiple
parties who withdraw water from the same aquifer ask a court to hear competing arguments and better define the rights that
various entities have to use the groundwater resources. Through the adjudication the court can assign specific water rights to
water users and can compel the cooperation of those who might otherwise refuse to limit their groundwater pumping. Even
after a decree is entered, the court retains continuing jurisdiction and usually appoints a watermaster to ensure that pumping
conforms to the limits defined by the adjudication.
Because there is no state mandate to report groundwater withdrawals it is difficult to determine who should be legally noticed
of the court action. In addition there are usually
AB 1390
Page 7 technical disagreements among parties, including as to the historic groundwater use which could affect the scope of
one's rights. The Antelope Valley groundwater basin in Los Angeles and Kern Counties is illustrative: The adjudication has
been sitting in the trial court for 15 years; parties include cities, farmers, the federal government, and a class of 85,000 property
owners who hold groundwater rights but who have never pumped water; there are over 9,000 docket entries so far; and, more
than 100 lawyers involved. Similarly, the Santa Maria groundwater basin in Santa Barbara and San Luis Obispo counties took
15 years, involved thousands of parties, cost tens of millions of dollars, and still might not be completely resolved.
The author states that when Governor Brown signed SGMA last year he acknowledged the need to develop a streamlined
groundwater adjudication process. The author adds that this bill is meant to address the time sinks that occur in current
groundwater adjudications by clarifying the processes that must be followed. The author states that streamlining adjudications
will ease the burden on the courts, provide the parties with the most efficient resolution possible, protect individual rights, all
while appropriately integrating adjudication actions with SGMA. Other supporters state that this bill will address particular
challenges that exist in groundwater adjudications including determination of venue, identification of basin boundaries,
disqualification of judges, notice and service of parties, discovery and the ability of the parties to reach settlement. Supporters
add this bill will do that without impacting due process or changing California water law.
Most former opposition to this bill was submitted when this bill and SB 226 were competing measures. Since that time
the authors and many of the supporters and opponents of both bills have been working together to develop one integrated,
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 4
2015 California Assembly Bill No. 1390, California..., 2015 California...
contingently-enacted proposal that places the procedural streamlining processes in this bill and the SGMA-specific language in
SB 226. Following the latest amendments to this bill many of the prior opponents have moved to support positions.
AB 1390
Page 8
No opposition to this bill was received. However, following the latest set of amendments, concerns were raised by parties
that questioned whether this bill could impermissibly affect unexercised water rights (future claims by people who own
land overlying the basin but who do not currently pump groundwater) or inappropriately bring surface water rights into the
groundwater arena. However, such concerns ignore that current law already sets forth the ability of the court to determine
water right priorities; and, that where groundwater and surface water are interconnected, the "common source" doctrine applies,
integrating water rights and applying priorities without regard to whether the diversion is from surface or groundwater. The
author states that the reason for including provisions acknowledging existing law is to remove some of the unnecessary
uncertainty that has been a major obstacle to a speedy and fair resolution of groundwater claims.
In particular, concerns were raised that this bill states a court may consider applying the principles established in the 1979
California Supreme Court case In re Waters of Long Valley Creek Stream System (Long Valley). That is existing law and
this bill does not change it. Long Valley is important to reference however as it established a precedent that all water rights,
including unexercised water rights, could be given a priority based on the facts of the situation and that addressing all rights
would bring clarity to water rights holders and foster more beneficial and efficient uses of the State's waters as mandated by the
California Constitution. In addition, the court reasoned that addressing all water rights could eliminate the uncertainty that leads
to recurrent, costly, and piecemeal litigation. This bill includes detailed procedures to ensure that a comprehensive adjudication is
truly comprehensive, with adequate notice and due process protections for all groundwater extractors and overlying landowners.
With those procedural protections, the application of Long Valley could help provide water rights holders the security that the
water rights recognized in the decree will be protected, instead of losing out to claims that were not included or quantified.
In addition to SB 226, there are two other major bills this
AB 1390
Page 9 session concerning groundwater. SB 13 (Pavley), Chapter 255, Statutes of 2015, makes several technical cleanup changes
to SGMA and its related statutory sections. AB 617 (Perea) of the current legislative session amends SGMA to allow public
private partnerships, provide an appeals process to the State Water Board for public agencies if state entities agencies are not
working cooperatively to implement the GSP, and to allow groundwater sustainability planning to be incorporated into an
Integrated Regional Water Management Plan. AB 617 is pending in the Senate.
Analysis Prepared by: Tina Leahy / W., P., & W. / (916) 319-2096 FN: 0002360
2015 CA A.B. 1390 (NS)
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 5
Preview
1 Kimberly Pallen (SBN 288605) kimberly.pallen@withersworldwide.com 2 Christopher N. LaVigne (NYBN 4811121) ELECTRONICALLY (admitted Pro Hac Vice) 3 christopher.lavigne@withersworldwide.com FILED Superior Court of California, Withers Bergman LLP County of San Francisco 4 505 Sansome Street, 2nd Floor San Francisco, California 94111 03/15/2021 Clerk of the Court 5 Telephone: 415.872.3200 BY: RONNIE OTERO Facsimile: 415.549 2480 Deputy Clerk 6 Attorneys for Defendants Payward, Inc., a 7 California Corporation d/b/a Kraken; and Kaiser NG, an individual 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 12 NATHAN PETER RUNYON, an individual, Case No. CGC-19-581099 13 Plaintiff, DECLARATION OF KIMBERLY A. PALLEN IN SUPPORT OF OPPOSITION 14 v. TO EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR 15 PAYWARD, INC., a California Corporation PLAINTIFF NATHAN PETER d/b/a KRAKEN; and Kaiser NG, an RUNYON’S NOTICE OF MOTION TO 16 individual; and DOES 1 through 10, inclusive, APPOINT A SPECIAL MASTER 17 Defendants. Filed Concurrently with Opposition to Ex Parte Application 18 Date: March 11, 2021 19 Time: 11:00 a.m. Dept.: 206 20 The Hon. Samuel K. Feng, Dept. 206 21 Action Filed: November 26, 2019 22 Trial Date: July 12, 2021 23 24 I, KIMBERLY A. PALLEN, declare as follows: 25 1. The facts stated in this declaration are based on my personal knowledge, and, if called 26 to testify, I could and would competently testify to them. I submit this declaration pursuant to 27 California Code of Civil Procedure § 2016.040. 28 2. I am an attorney duly licensed to practice law in the State of California. I am an NY28571/0001-US-9056714/2 W ITHERS B ERGMAN LLP DECLARATION OF KIMBERLY A. PALLEN IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION FOR ORDER SHORTENING TIME 1 attorney at the law firm of Withers Bergman LLP, counsel for Defendants Payward, Inc., d/b/a 2 Kraken (“Payward”) and Kaiser Ng (together with Payward, “Defendants”) in the above-entitled 3 matter. 4 3. Attached hereto as Exhibit A is a true and correct copy of California Committee 5 Report for 2015 California Assembly Bill No. 1390, of the California 2015-2016 Regular Session. 6 I declare under penalty of perjury under the laws of the State of California that the foregoing 7 is true and correct, except as to matters stated on information and belief and as to those matters, I 8 believe them to be true. 9 Executed this 15th day of March, 2021 at San Francisco, California. 10 11 Kimberly Pallen 12 Attorneys for Plaintiff Payward, Inc. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NY28571/0001-US-9056714/2 2 W ITHERS B ERGMAN LLP DECLARATION OF KIMBERLY A. PALLEN IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION FOR ORDER SHORTENING TIME EXHIBIT A 2015 California Assembly Bill No. 1390, California..., 2015 California... 2015 CA A.B. 1390 (NS) 2015 California Assembly Bill No. 1390, California 2015-2016 Regular Session CALIFORNIA COMMITTEE REPORT VERSION: General September 09, 2015 Version Date September 09, 2015 Alejo, Gomez, and Perea (Principal coauthors: Gray, Olsen, and Salas) (Principal coauthors: Senators Cannella, Hueso, Pavley, and Vidak) (Coauthors: Cooley, Cooper, Eggman, Frazier, Levine, Mathis, Ridley-Thomas, Wilk, and Wood) (Coauthors: Senators Fuller and Galgiani). TEXT: BILL ANALYSIS AB 1390 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1390 (Alejo, et al.) As Amended September 4, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |76-0 |(May 26, 2015) |SENATE: |40-0 |(September 9, | | | | | | |2015) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: W., P., & W. SUMMARY: Adds a new Chapter 7 to Title 10 of Part 2 of the Code of Civil Procedure (new CCP provisions) that establish methods and procedures for comprehensive groundwater adjudications. The Senate amendments: 1)Require that comprehensive adjudications are conducted consistently with existing laws, including the following: a) Achievement of groundwater sustainability within the timeframes of the Sustainable Groundwater Management Act (SGMA). b) Federal laws regarding the determination of federal or AB 1390 Page 2 tribal water rights, as applicable. c) Existing law determining and establishing the priority of unexercised groundwater rights. © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 California Assembly Bill No. 1390, California..., 2015 California... d) Other provisions of the Code of Civil Procedure to the extent they do not conflict with the new CCP provisions. 2)Allow a waiver of court fees and costs for eligible applicants with insufficient economic means, as specified, consistent with existing law. 3)Exempt specified groundwater rights actions that do not rise to the level of a comprehensive adjudication. 4)Allow joinder of persons who claim rights to divert and use water from interconnected surface water bodies or subterranean streams flowing through known and definite channels if the court finds such joinder is necessary for the fair and effective determination of the groundwater rights in a basin. 5)Allow a court to exempt parties extracting or diverting five acre-feet or less of water if those parties do not wish to participate in the adjudication and exempting them would not have a material effect on the groundwater rights of other parties. 6)Add specificity to how notification of the comprehensive adjudication shall be conducted and broaden the list of persons who shall receive notice of the comprehensive adjudication to include, for example, SGMA groundwater sustainability agencies (GSAs), persons from an interested parties list established under SGMA, California Native American tribes, and others, as specified. AB 1390 Page 3 7)Require, within 15 days of the court order approving both the notice for the adjudication and a form answer that can be used in response to the notice, that the plaintiff in the adjudication request names and addresses of persons reporting groundwater extractions to the State Water Resources Control Board (State Water Board) and any GSA in the basin. 8)Refine the entities allowed to intervene by adding the following that overlie a basin or a portion of the basin: a GSA, a city, county or both. In accordance with existing law allows a person to apply to intervene who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both. 9)Disqualify the judge of a superior court of a county that overlies the basin or any portion of the basin and allow the Judicial Council to assign a judge to preside in all proceedings for the comprehensive adjudication. 10)Consolidate, if appropriate, any action against a GSA in the basin with the comprehensive adjudication if the action concerns the adoption, substance, or implementation of the GSA's groundwater sustainability plan (GSP) or the GSA's compliance with SGMA timelines. 11)Refine procedures that take in to account actual or proposed groundwater basin boundary changes, either in response to boundary changes by the Department of Water Resources (DWR) or by the court directing a party, as specified, to submit a request for a change to DWR. Specifies DWR's basin boundary changes are subject to judicial review. 12)Refine service of process in a comprehensive adjudication. 13)Refine the initial disclosures that parties to an AB 1390 © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 2015 California Assembly Bill No. 1390, California..., 2015 California... Page 4 adjudication must share with one another to establish the scope and basis of their claims to groundwater, including any use of expert witnesses. 14)Refine the requirements for proposed stipulated judgments supported by more than 50% of the parties who are groundwater extractors in the basin or use the basin for groundwater storage and to be supported by groundwater extractors responsible for at least 75% of the groundwater extracted in the basin during the preceding five years before the filing of the complaint. 15)Make other technical and conforming changes. 16)Is operative only if SB 226 (Pavley) of the current legislative session is also enacted and becomes effective. EXISTING LAW: 1)Expresses the state's regulatory and supervisory authority over all waters in the state, surface and underground, by declaring that all waters in the state are property of the people of the State, while recognizing that rights may be acquired to the use of water. 2)Establishes background principles that apply to all water diversion and use, including the Constitutional prohibition against waste, unreasonable use, unreasonable method of diversion or unreasonable method of use. 3)Allows a party with rights to extract and use water in a groundwater basin to initiate a lawsuit so the court can decide the groundwater rights of all parties overlying the basin and others who may export water out the basin. AB 1390 Page 5 4)Empowers the court to decide who the extractors are, how much groundwater those well owners can extract, and who will ensure that the basin is managed according to the court's decree (generally called a "watermaster"), including periodically reporting to the court. 5)Requires DWR to prioritize California's groundwater basins in order to focus state resources. The basins are prioritized as either high, medium, low, or very low based on a combination of factors including, but not limited to, overlying population, level of dependence for urban and agricultural water supplies, and impacts on the groundwater from overdraft, subsidence, saline water intrusion, and water quality degradation. 6)Allows a local agency to file a request with DWR to revise groundwater basin boundaries. 7)Requires, by June 30, 2017, that local agencies form one or more GSAs in all high and medium priority basins subject to SGMA for the purpose of developing and adopting GSPs or submit existing groundwater management plans or adjudications that DWR determines are functionally equivalent to SGMA GSPs. 8)Requires, by January 31, 2020, that GSAs in all critically overdrafted high and medium priority basins develop and adopt GSPs that provide for the sustainable management of the groundwater basin, as defined. 9)Requires, by January 31, 2022, that GSAs in all other high and medium priority basins subject to SGMA develop and adopt GSPs. 10)Allows the State Water Board to impose an interim plan for management of a groundwater basin if no GSA is formed by the deadline, no GSP is adopted by the appropriate deadline, or a © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 2015 California Assembly Bill No. 1390, California..., 2015 California... AB 1390 Page 6 GSP is adopted which DWR deems insufficient and where the basin is in a chronic condition of overdraft or in a condition where groundwater pumping is causing a significant depletion of interconnected surface waters. FISCAL EFFECT: According to the Senate Appropriations Committee, there will be an unknown reduction in costs to the General Fund for the courts. COMMENTS: This bill creates a new chapter in the Code of Civil Procedure that will streamline comprehensive groundwater adjudications. This bill has also been carefully crafted to take into consideration how comprehensive adjudications will be conducted in basins subject to SGMA. For that reason, this bill and SB 226 are contingent on the enactment of each other. This bill sets out the general provisions for streamlining groundwater adjudications that would be applicable to any basin. SB 226 relies on the new CCP provisions created by this bill but then sets out additional standards and procedures for the court to apply in basins that are subject to SGMA in order to ensure minimal interference with GSP development and maintain consistency with SGMA objectives. It is undisputable that groundwater adjudications are lengthy, complicated, and expensive. An adjudication is when multiple parties who withdraw water from the same aquifer ask a court to hear competing arguments and better define the rights that various entities have to use the groundwater resources. Through the adjudication the court can assign specific water rights to water users and can compel the cooperation of those who might otherwise refuse to limit their groundwater pumping. Even after a decree is entered, the court retains continuing jurisdiction and usually appoints a watermaster to ensure that pumping conforms to the limits defined by the adjudication. Because there is no state mandate to report groundwater withdrawals it is difficult to determine who should be legally noticed of the court action. In addition there are usually AB 1390 Page 7 technical disagreements among parties, including as to the historic groundwater use which could affect the scope of one's rights. The Antelope Valley groundwater basin in Los Angeles and Kern Counties is illustrative: The adjudication has been sitting in the trial court for 15 years; parties include cities, farmers, the federal government, and a class of 85,000 property owners who hold groundwater rights but who have never pumped water; there are over 9,000 docket entries so far; and, more than 100 lawyers involved. Similarly, the Santa Maria groundwater basin in Santa Barbara and San Luis Obispo counties took 15 years, involved thousands of parties, cost tens of millions of dollars, and still might not be completely resolved. The author states that when Governor Brown signed SGMA last year he acknowledged the need to develop a streamlined groundwater adjudication process. The author adds that this bill is meant to address the time sinks that occur in current groundwater adjudications by clarifying the processes that must be followed. The author states that streamlining adjudications will ease the burden on the courts, provide the parties with the most efficient resolution possible, protect individual rights, all while appropriately integrating adjudication actions with SGMA. Other supporters state that this bill will address particular challenges that exist in groundwater adjudications including determination of venue, identification of basin boundaries, disqualification of judges, notice and service of parties, discovery and the ability of the parties to reach settlement. Supporters add this bill will do that without impacting due process or changing California water law. Most former opposition to this bill was submitted when this bill and SB 226 were competing measures. Since that time the authors and many of the supporters and opponents of both bills have been working together to develop one integrated, © 2021 Thomson Reuters. No claim to original U.S. Government Works. 4 2015 California Assembly Bill No. 1390, California..., 2015 California... contingently-enacted proposal that places the procedural streamlining processes in this bill and the SGMA-specific language in SB 226. Following the latest amendments to this bill many of the prior opponents have moved to support positions. AB 1390 Page 8 No opposition to this bill was received. However, following the latest set of amendments, concerns were raised by parties that questioned whether this bill could impermissibly affect unexercised water rights (future claims by people who own land overlying the basin but who do not currently pump groundwater) or inappropriately bring surface water rights into the groundwater arena. However, such concerns ignore that current law already sets forth the ability of the court to determine water right priorities; and, that where groundwater and surface water are interconnected, the "common source" doctrine applies, integrating water rights and applying priorities without regard to whether the diversion is from surface or groundwater. The author states that the reason for including provisions acknowledging existing law is to remove some of the unnecessary uncertainty that has been a major obstacle to a speedy and fair resolution of groundwater claims. In particular, concerns were raised that this bill states a court may consider applying the principles established in the 1979 California Supreme Court case In re Waters of Long Valley Creek Stream System (Long Valley). That is existing law and this bill does not change it. Long Valley is important to reference however as it established a precedent that all water rights, including unexercised water rights, could be given a priority based on the facts of the situation and that addressing all rights would bring clarity to water rights holders and foster more beneficial and efficient uses of the State's waters as mandated by the California Constitution. In addition, the court reasoned that addressing all water rights could eliminate the uncertainty that leads to recurrent, costly, and piecemeal litigation. This bill includes detailed procedures to ensure that a comprehensive adjudication is truly comprehensive, with adequate notice and due process protections for all groundwater extractors and overlying landowners. With those procedural protections, the application of Long Valley could help provide water rights holders the security that the water rights recognized in the decree will be protected, instead of losing out to claims that were not included or quantified. In addition to SB 226, there are two other major bills this AB 1390 Page 9 session concerning groundwater. SB 13 (Pavley), Chapter 255, Statutes of 2015, makes several technical cleanup changes to SGMA and its related statutory sections. AB 617 (Perea) of the current legislative session amends SGMA to allow public private partnerships, provide an appeals process to the State Water Board for public agencies if state entities agencies are not working cooperatively to implement the GSP, and to allow groundwater sustainability planning to be incorporated into an Integrated Regional Water Management Plan. AB 617 is pending in the Senate. Analysis Prepared by: Tina Leahy / W., P., & W. / (916) 319-2096 FN: 0002360 2015 CA A.B. 1390 (NS) End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. © 2021 Thomson Reuters. No claim to original U.S. Government Works. 5