Comprehensive Groundwater Adjudications: New Rules of Engagement for Resolving Groundwater Disputes
New procedures govern the battle over one of California’s most valuable resources.
The punishing drought, the heralded El Niño and the “water police” demanding short showers and brown lawns have made Californians more concerned now than ever about a typically (and paradoxically) dry subject for most: water. Believe it or not, legal battles for water in California are as old as the state itself, and they are equally epic. However, the new rules of engagement for resolving groundwater disputes are intended to make those battles less legendary and more pragmatic.
Groundwater Management in California
In California, water “rights” are not rights of ownership; rather, they are “usufructuary” rights (not a bad word when pronounced correctly) to use a public resource that is owned by the people of the State of California. See Cal. Water Code § 102. Generally, a groundwater right is the right of a landowner to pump water from the sub-surface groundwater basin and use that water for reasonable and beneficial purposes on the overlying land within the watershed of the basin. California Water Service Co. v. Edward Sidebotham & Son, 224 Cal.App.2d 715, 725 (1964).
For nearly 150 years, California had no statewide regulatory process for managing groundwater. That changed when the Sustainable Groundwater Management Act of 2014 (“SGMA”) became law on January 1, 2015. See Cal. Water Code §§ 10720-10737.8.
SGMA requires the formation of local groundwater sustainability agencies (“GSAs”) that are charged with managing significantly overdrafted groundwater basins according to groundwater sustainability plans (“GSPs”) in order to achieve long-term basin sustainability. Notably, SGMA is not designed to determine or alter substantive groundwater rights. See Cal. Water Code §§ 10720.5(b), 10726.8(b). That’s what groundwater adjudications are for.
Comprehensive Groundwater Adjudications
A traditional, common law groundwater adjudication is an incredibly complex matter that can last for years—even decades—before reaching a final judgment. To deal with that bleak reality, recent legislation (which water practitioners now refer to as the “Adjudication Law”) establishes methods and procedures intended to expedite certain aspects of groundwater litigation that have historically consumed vast amounts of time, money and judicial resources. See Cal. Civ. Proc. Code §§ 830-852.
For starters, the new procedures usher groundwater adjudications into the 21st Century by requiring “to the greatest extent possible” the use of electronic systems for the service of pleadings and papers (other than the complaint). See Cal. Code Civ. Proc. § 839. The Adjudication Law requires the plaintiff who initiates the proceeding to identify all real property parcels and owners within the basin and to ensure that they are served with the complaint along with a court-approved special notice and form answer to the complaint. Id. §§ 835, 836.
Within six months of appearing in the adjudication, each new party is required to submit initial disclosures to every other party. These disclosures must include a significant amount of detailed information pertaining to all aspects of the party’s claimed groundwater rights. Id. § 842(a).
(Counsel in these cases should keep their eyes out for a potential new Judicial Council form to be used in connection with those initial disclosures. Id. § 842(b).)
Each party must also timely correct or supplement materially incomplete or incorrect information in prior disclosures and discovery responses, and the same is true for a party’s expert witness disclosures and reports. Id. §§ 842(d), 843(f).
The Adjudication Law also expressly allows for witnesses to offer testimony by way of written declarations signed under penalty of perjury in lieu of providing live testimony, subject to certain evidentiary and procedural requirements. Id. § 844.
Real Estate Disclosure Rule
Persons who are selling property involved in a comprehensive adjudication must make an appropriate disclosure as part of the sales transaction. An owner selling real property that is located in a basin that is undergoing an adjudication must disclose to the buyer that the adjudication process is underway. Id. § 836(f).
Participating in an Adjudication
The court’s judgment in a comprehensive adjudication must determine all groundwater rights of a basin, and it may declare the priority, amount, purposes of use, pumping location, place of use of the water, and use of storage space in the basin. It may also issue appropriate injunctive relief. Id. § 834.
Counsel should immediately get to work evaluating the client’s water rights in order to comply with the hefty initial disclosures. Lawyers who are not themselves hydrologists must consider engaging an expert to help analyze the situation.
Make no mistake: California water law is extremely complex. Before taking the plunge into the Water Code and certain critically important 19th Century judicial decisions, consider consulting not only with an expert but also with experienced water counsel.
And most important of all, tell your client to buckle up and hold on tight for what is likely to be a turbulent proceeding.
Derek R. Hoffman is an associate at Gresham, Savage, Nolan & Tilden in San Bernardino. He is a member of the firm’s Mining and Natural Resources, Real Estate, and Business and Corporate Practice Groups