“Groundwater is an interesting one because it’s so pervasive in the state and it’s so fact-intensive,” Baggett said. “The challenge you’ve got with groundwater is the hydrology and sci- ence it takes to defi ne a basin. It takes a lot of money that somebody’s going to have to pay.”


In a 2005 article published in


the California Water Law & Policy Reporter, Orange County attorney James Markman wrote that “con- trolling decision making relative to groundwater production rights and the distribution of costs needed to protect groundwater resources must emanate from the court system,” and that, “if one accepts the premise that water law is complex and foreign territory for the vast majority of judges and justices in the California court system, it is clear that a group of expert judges should be allocated the disposition of ground- water production disputes.”


Regulating groundwater use would


be diffi cult because under California law, every landowner has a pumping right associated with land ownership and any attempt to oversee ground- water use through adjudication would mean fi rst identifying the basin and sifting through thousands, or in some cases tens of thousands, of parties with a stake in the case. To fi x that means fi nding a way to streamline the process through specialist judges, ALJs, liberal rules of evidence or an arbitration process to hash out the details.


“In short, our goal should be to create a system that affords due process where everybody gets their say, the judge is fully informed and we formu- late workable solutions, but you do it far faster,” McGlothlin said.


The idea of a water court, in which various districts around the state would have a judge who specializes in water policy, was fl oated in 2006 by former Republican Assemblywoman Lynn Daucher of Orange County but never gained traction. Daucher’s legislation would have created nine water divisions in certain superior courts, with the respective


July/August 2014


presiding judge of each court respon- sible for assigning a water judge “with extensive experience” to oversee groundwater adjudication.


The bill was opposed by the Judi- cial Council, which generally opposes specialized courts. Furthermore, the Council notes that presiding justices have the ability to declare cases “com- plex litigation” and assign them to experienced justices.


“I feel strongly we do not need a water court,” said Ron Robie, associate justice with the Third District Court of Appeal.


Colorado stands apart from almost all other western states, which use a water permit system. To handle the volume of water cases and help deal with the complexities of water rights in Colorado, the seven water courts were created for case by case adjudication of each new water right application, with direct review on appeal to the Colorado Supreme Court, bypassing its Court of Appeals. Adjudicated rights may exercise their priorities over junior water rights and unadjudicated water rights when there is not enough water available for all rights. “Other western states have a real simple water rights system, it’s almost all appropriative,” Baggett said. “It’s simple – fi rst in time, fi rst in right.” This issue of Western Water discusses the current system of admin- istering water rights in California and asks the question: Does California need a water court? Answers vary.


A Unique Type of Litigation Water law has many facets, from water rights to water quality to protections of threatened and endangered species. However the issues that would go to a water court are defi ned, there will be cases that raise both water issues and non-water issues. The State Water Board is where many legal disputes are fi rst heard. “You’ve got a state agency that has a very important and broad man- date with respect to water rights and water quality,” Walter said. “Those issues have become increasingly more


Learn more about


adjudicated groundwater basins from DWR


Learn more about a state water court from the


California Water Law Journal


7


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