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AB-2313 Water: judges and adjudications.(2021-2022)

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Date Published: 06/30/2022 09:00 PM
AB2313:v96#DOCUMENT

Amended  IN  Senate  June 30, 2022
Amended  IN  Assembly  April 27, 2022
Amended  IN  Assembly  March 30, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 2313

Introduced by Assembly Member Bloom

February 16, 2022

An act to add Section 68556 to the Government Code, and to add Chapter 3.1 (commencing with Section 1107) to Part 1 of Division 2 of the Water Code, relating to water.


LEGISLATIVE COUNSEL'S DIGEST


AB 2313, as amended, Bloom. Water: judges and adjudications.
(1) Existing law authorizes the Judicial Council to conduct institutes and seminars for the purpose of orienting judges to new judicial assignments, keeping them informed concerning new developments in the law, and promoting uniformity in judicial procedure, as specified.
This bill would require authorize the Judicial Council, on or before January 1, 2025, to establish a program that provides training and education to judges in specified actions relating to water, as defined. The bill would provide that the program may be funded by an appropriation from the General Fund in the annual Budget Act or another statute, or by using existing funds for judicial training. The bill would authorize, within 30 days after at least one defendant or respondent has been served in an action relating to water, any party to file a noticed motion for that case to be assigned to a judge who has participated in that training program, subject to prescribed procedures. The bill would require a court to prioritize assigning a judge with training or education under the program for actions relating to water, if certain conditions are met.
(2) Under existing law, when it appears to the court at any time before or during the trial of the action that expert evidence is or may be required by the court or by any party to the action, the court, on its own motion or on motion of any party, may appoint one or more experts to investigate, to render a report, and to testify as an expert at the trial of the action, as specified.
For comprehensive groundwater adjudications, existing law authorizes the court to appoint one or more special masters with specified duties, including, among others, investigating technical and legal issues and performing other tasks the court may deem appropriate. Existing law requires the court to equitably allocate payment of the special master’s compensation among the parties and authorizes the court to waive a party’s obligations to pay the special master’s compensation upon a showing of good cause.
This bill would require the Judicial Council to identify experts in water science or management, or research attorneys, who may be available to any judge adjudicating an action relating to water, as defined, as an expert pursuant to the procedure specified above, as a research attorney, or to consult on the contents of a document submitted by a party. The bill would authorize the Judicial Council to pay or reimburse courts for the costs of employing or contracting with those experts or research attorneys in an action relating to water with funds appropriated for that purpose. The bill would authorize a judge to appoint a qualified special master to assist the judge with an action relating to water with duties similar to those for special masters in comprehensive groundwater adjudications. The bill would authorize require the reasonable and appropriate compensation for experts and research attorneys identified pursuant to the bill, special masters appointed pursuant to the bill, and for experts appointed to an action relating to water pursuant to the procedure specified above, to be funded by an appropriation from the General Fund in the annual Budget Act or another statute. For a special master in a comprehensive groundwater adjudication, the bill would authorize their compensation to be provided pursuant to the procedures specified above under existing law or by that General Fund appropriation.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 (a) It is the intent of the Legislature in enacting this act to support a Judicial Council-led program to broaden and sustain judicial expertise in the area of water law and litigation. Supported by experts in the field, this program would expand education and training for judges and access to specialized staff to increase judicial knowledge and procedural efficiencies in the adjudication of actions relating to water.
(b) It is further the intent of the Legislature in enacting subdivision (c) of Section 68556 of the Government Code that if a judge is assigned to an action related to water who has not received training or education pursuant to subdivision (a) Section 68556 of the Government Code, the assigned judge shall have access to the judicial water experts authorized in Section 1107 of the Water Code.

SEC. 2.

 Section 68556 is added to the Government Code, to read:

68556.
 (a) (1) On or before January 1, 2025, the Judicial Council shall may establish a program that provides training and education to judges in technical, scientific, legal, management, and infrastructure actions relating to water.
(2) The program shall include the development of water conflict education, which may include training on both western regional and California-specific water conflict and may include meetings and conferences.
(3) Participation in the program may include superior court judges from counties across the state, appellate court justices, and State Water Resources Control Board administrative law judges.
(4) The Judicial Council shall seek to include in the program judges from counties in each of the nine California regional water quality control board regions and justices from each appellate district.
(5) The program may be funded by an appropriation from the General Fund in the annual Budget Act or another statute, or by using existing funds for judicial training.

(b)(1)Within 30 days after at least one defendant or respondent has been served in an action relating to water, any party may file a noticed motion for that case to be assigned to a judge who has participated in a training program described in subdivision (a). The presiding judge of the Superior Court that is the case’s venue shall hear the motion as promptly as possible. Subdivision (b) of Section 1005 of the Code of Civil Procedure shall govern the schedule for the motion, except that a defendant or respondent who is served between the motion’s filing and the hearing on the motion may file a response to it no less than five court days before the hearing.

(2)Subject to Sections 170.1, 394, and 397 of the Code of Civil Procedure, after hearing a motion under paragraph (1), the presiding judge may take any one of the following actions:

(A)Request that the Judicial Council assign a judge from another county who has participated in a training program described in subdivision (a) to hear the case.

(B)Subject to Section 838 of the Code of Civil Procedure, assign a judge of the Superior Court that is the case’s venue who has participated in a training program described in subdivision (a) to hear the case. Section 170.6 of the Code of Civil Procedure shall not apply to an assignment under this subparagraph.

(C)Decline to assign the case outside of the Superior Court’s normal assignment rules, provided that the presiding judge explains in a written order why the case does not require the judge that will hear it to have training related to an action relating to water.

(D)Defer issuing an order on the motion until additional parties have been served and can submit arguments on the motion, provided that the order of deferral sets both a deadline for the plaintiff or respondent to complete service of the parties that the presiding judge determines to be necessary to hear the motion and a date for another hearing on the motion, which shall not be more than 180 days after the initial hearing date.

(b) For actions relating to water, the court shall prioritize assigning a judge with training or education provided pursuant to subdivision (a), if both of the following conditions are met:
(1) The court has a judge with training or education pursuant to subdivision (a).
(2) The judge with training or education pursuant to subdivision (a) is available for assignment to an action relating to water within a reasonable timeframe, as determined by the court.
(c) For actions relating to water, if a judge with training or education provided pursuant to subdivision (a) is not available, the court may assign another judge.
(d) For actions relating to water, the court may request that the Chairperson of the Judicial Council assign a judge with training or education provided pursuant to subdivision (a).

(c)

(e) For purposes of this section, an “action relating to water” includes an action that partially or wholly consists of an action involving any of the following:
(1) A comprehensive adjudication, as defined in subdivision (c) of Section 832 of the Code of Civil Procedure.
(2) An action concerning the State Water Resources Control Board’s adoption of a maximum contaminant level under Chapter 4 (commencing with Section 116270) of Part 12 of Division 104 of the Health and Safety Code.
(3) An action concerning the State Water Resources Control Board’s decision or order requiring reductions in water use by one or more holders of a water right under Section 2 of Article X of the California Constitution or Section 275 of the Water Code.
(4) An action concerning the State Water Resources Control Board’s adoption of an emergency regulation under Section 1058.5 of the Water Code.
(5) An action concerning a decision or order of the State Water Resources Control Board establishing or amending minimum streamflow requirements, or identifying a subterranean stream flowing through a known and definite channel, under Part 2 (commencing with Section 1200) of Division 2 of the Water Code or other legal authority.
(6) An action concerning the State Water Resources Control Board’s decision or order concerning a water transfer under Chapter 10.5 (commencing with Section 1725) of Part 2 of Division 2 of the Water Code.
(7) An action concerning the adjudication of a stream system under Chapter 3 (commencing with Section 2500) of Part 3 of Division 2 of the Water Code.
(8) An adjudication action, as defined in subdivision (a) of Section 10721 of the Water Code, to which Section 10737 of the Water Code applies.
(9) An action concerning the adoption or amendment of a water quality control plan, or the adoption or amendment of a state policy for water quality control, under Division 7 (commencing with Section 13000) of the Water Code.
(10) An action concerning the State Water Resources Control Board’s issuance of a water quality certification for a hydroelectric project under Section 13160 of the Water Code.
(11) An action concerning waste discharge requirements adopted under Article 4 (commencing with Section 13260) of Chapter 4 of Division 7 of the Water Code.
(12) An action to establish minimum streamflow requirements pursuant to Section 2 of Article X of the California Constitution or other legal authority.

SEC. 3.

 Chapter 3.1 (commencing with Section 1107) is added to Part 1 of Division 2 of the Water Code, to read:
CHAPTER  3.1. Judicial Water Experts

1107.
 (a) The Judicial Council shall identify experts in water science or management, or research attorneys, who may be available to any judge adjudicating an action relating to water as an expert pursuant to Section 730 of the Evidence Code, as a research attorney, or to consult on the contents of a document submitted by a party.
(b) For purposes of this section, an “expert in water science or management” means a person with expertise or practical experience in one or more of the following:
(1) Water engineering.
(2) Water modeling.
(3) Climate science.
(4) Managing or administering water rights.
(c) The Judicial Council may pay or reimburse courts for the costs of employing or contracting with experts in water science or management or research attorneys in an action relating to water with funds appropriated for that purpose.

1107.5.
 (a) A judge may appoint a special master to assist the judge with an action relating to water whose duties, which the special master shall be qualified to undertake, may include the following:
(1) Investigating technical and legal issues, as directed by the court. The special master shall compile a report of findings in accordance with Section 1108.
(2) Conducting joint factfinding with the parties, their designees, or both.
(3) Investigating the need for, and developing a proposal for, a preliminary injunction.
(4) Performing other tasks the court may deem appropriate.
(b) The court shall fix the special master’s compensation on the basis and terms stated in the appointing order, and the court may set a new basis and new terms after giving the parties notice and an opportunity to be heard. Notwithstanding subdivision (b) of Section 845 of the Code of Civil Procedure, for a comprehensive groundwater adjudication conducted pursuant to Chapter 7 (commencing with Section 830) of Title 10 of Part 2 of the Code of Civil Procedure, the payment of the special master’s compensation may be allocated pursuant to subdivision (b) of Section 845 of the Code of Civil Procedure or pursuant to the General Fund appropriation specified in subdivision (b) of Section 1108.5.
(c) The court may request the board or the department to recommend candidates for appointment as a special master or to review the qualifications of candidates.
(d) This section does not limit the authority of the court to make a reference pursuant to Chapter 1 (commencing with Section 2000) of Part 3.
(e) This section does not limit the authority to appoint a watermaster pursuant to Chapter 3 (commencing with Section 4050) of Part 4 or any other law.

1108.
 (a) A special master appointed pursuant to Section 1107.5 shall make a draft report available to the parties and provide at least 60 days for the parties to submit written objections to the draft report.
(b) An objection to the draft report shall identify the specific grounds and evidence on which the objection is based.
(c) The special master may notice and hold hearings, as the special master deems appropriate, to gather information or address issues raised in the objections to the draft report.
(d) The special master shall consider the objections to the draft report and develop a final report that shall be filed with the court, together with supporting evidence.

1108.5.
 The reasonable and appropriate compensation for all of the following may shall be funded by an appropriation from the General Fund in the annual Budget Act or another statute:
(a) Experts and research attorneys identified pursuant to Section 1107.
(b) A special master appointed pursuant to Section 1107.5.
(c) An expert appointed to an action relating to water pursuant to Section 730 of the Evidence Code.

1109.
 For purposes of this chapter, an “action relating to water” includes an action that partially or wholly consists of an action involving any of the following:
(a) A comprehensive adjudication, as defined in subdivision (c) of Section 832 of the Code of Civil Procedure.
(b) An action concerning the board’s adoption of a maximum contaminant level under Chapter 4 (commencing with Section 116270) of Part 12 of Division 104 of the Health and Safety Code.
(c) An action concerning the board’s decision or order requiring reductions in water use by one or more holders of a water right under Section 2 of Article X of the California Constitution or Section 275.
(d) An action concerning the board’s adoption of an emergency regulation under Section 1058.5.
(e) An action concerning a decision or order of the board establishing or amending minimum streamflow requirements, or identifying a subterranean stream flowing through a known and definite channel, under Part 2 (commencing with Section 1200) or other legal authority.
(f) An action concerning the board’s decision or order concerning a water transfer under Chapter 10.5 (commencing with Section 1725) of Part 2.
(g) An action concerning the adjudication of a stream system under Chapter 3 (commencing with Section 2500) of Part 3.
(h) An adjudication action, as defined in subdivision (a) of Section 10721, to which Section 10737 applies.
(i) An action concerning the adoption or amendment of a water quality control plan, or the adoption or amendment of a state policy for water quality control, under Division 7 (commencing with Section 13000).
(j) An action concerning the board’s issuance of a water quality certification for a hydroelectric project under Section 13160.
(k) An action concerning waste discharge requirements adopted under Article 4 (commencing with Section 13260) of Chapter 4 of Division 7.
(l) An action to establish minimum streamflow requirements pursuant to Section 2 of Article X of the California Constitution or other legal authority.