Bay Delta March & April 1998 Hearing Notice

NOTE: The first day of the hearing will commence at 9:00 a.m. The starting time for subsequent hearing days will be announced at the end of each day of hearing.

SUBJECTS OF HEARING

The State Water Resources Control Board (SWRCB) will convene this hearing for the purpose of receiving evidence on three subjects: (1) the assignment of responsibilities for meeting the flow-dependent objectives Footnote1 in the Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary, adopted on May 22, 1995 (1995 Bay-Delta Plan), (2) whether or not to approve, subject to terms and conditions, a joint petition of the Department of Water Resources (DWR) and the United States Bureau of Reclamation (USBR) to combine their points of diversion in the southern Delta, and (3) whether or not to approve, subject to terms and conditions, a petition of the USBR to change the places of use and purposes of use in its water right permits for integrated parts of the federal Central Valley Project (CVP). Additionally, the SWRCB will consider whether or not to make recommendations to: (1) the Central Valley Regional Water Quality Control Board (CVRWQCB) concerning water quality actions discussed in the draft Environmental Impact Report (EIR), and (2) the DWR and the USBR concerning facilities in the southern Delta and in the Suisun Marsh.

The SWRCB will consider implementing flow-dependent objectives in the 1995 Bay-Delta Plan by allocating responsibility among water right holders to meet water flows and by requiring changes in the operations of facilities used in the diversion and use of water. The hearing will focus on the responsibilities under the water rights listed in Enclosure 2(a). Other water right holders (e.g., pre-1914 and riparian users) may eventually be required to help meet flows. Obligations will be placed on users not listed in Enclosure 2(a), only after further notice directed to such users. A draft EIR is available that analyzes the environmental effects of implementing the 1995 Bay-Delta Plan. Comments on the draft EIR will be due no later than January 30, 1998. A copy can be obtained from Ms. Renee Frazier at (916) 657-1361. A copy of the volume containing the appendices will not be provided unless specifically requested.

The SWRCB will consider a joint water right change petition filed by the DWR and the USBR for their State Water Project (SWP) and CVP water rights. The DWR and the USBR seek to add to their respective water rights each other\'s point of diversion in the southern Delta. With the proposed change, the SWP could use the Tracy Pumping Plant as well as its diversion point at Clifton Court Forebay (Banks Pumping Plant) and its authorized diversion point at Italian Slough Footnote2, and the CVP could use the Clifton Court Forebay and the SWP\'s authorized diversion point at Italian Slough as well as its diversion point at the Tracy Pumping Plant. This proposed change in operations is referred to as the "joint points of diversion". The water right permits and licenses that may be changed under the petition are listed in enclosure 2(b). The second volume of the draft EIR for implementation of the 1995 Bay-Delta Plan objectives analyzes the effects of eight alternatives for acting upon the petition for the joint points of diversion. The second volume of the draft EIR is being prepared by the DWR and the USBR, and may be delayed slightly.

The SWRCB will consider a water right change petition filed by the USBR for changes of place of use and purposes of use under water right permits for the CVP. Approval of the change petition would consolidate the places of use of many of the CVP water right permits, expand the places of use to include areas where CVP water is being used outside an authorized place of use, and conform all of the purposes of use under the group of CVP permits that are subject to the petition. A draft EIR separate from the draft EIR for the implementation of the 1995 Bay-Delta Plan objectives will be released in December, 1997, to address the environmental effects of the proposed change in place and purpose of use. The water right permits that may be changed under the petition are listed in Enclosure 2(c). When released, the draft EIR will be available from Ms. Renee Frazier, at (916) 657-1361. The due date for comments on this draft EIR will be specified when the draft EIR is released.

With respect to water rights, the SWRCB will focus the proceeding narrowly on assigning responsibility for meeting the objectives and on addressing the water right change petitions filed by the DWR and the USBR. With respect to meeting the objectives, the proceeding is intended to establish water right implementation requirements that will meet the flow-dependent objectives within the Bay-Delta, not to establish specific instream flow requirements to protect fish and wildlife upstream of the Delta. The proceeding involves a limited review of existing water rights. To the extent that it modifies existing water rights, it will do so only for the limited purpose of assigning responsibility for meeting water quality objectives in the 1995 Bay-Delta Plan. In addition, the SWRCB may modify the water rights of the DWR and the USBR as appropriate for any change in point of diversion, place of use, or purpose of use approved as part of the proceeding.

With respect to water quality and facilities-oriented actions discussed in the draft EIR, the SWRCB will focus on the recommendations it may make to other agencies, including the CVRWQCB, the DWR, and the USBR.

BACKGROUND

The Bay-Delta Estuary includes the Sacramento-San Joaquin Delta, Suisun Marsh and the embayments upstream of the Golden Gate. The Delta and Suisun Marsh are located where California\'s two major river systems, the Sacramento and the San Joaquin rivers, converge to flow westward to meet incoming seawater tides flowing through the San Francisco Bay. The watersheds of the Bay-Delta Estuary supply water for fish and wildlife in the Estuary and for agricultural and municipal uses in approximately two-thirds of the state. Most of the Bay-Delta water supply used for consumptive purposes is used within the watersheds that contribute water to the Estuary before it reaches the Estuary.

Additional water Footnote3 is diverted from the Estuary, primarily the southern Delta, for consumptive uses south and west of the Delta. The SWP and the federal CVP divert the largest quantities of water from the Estuary. Numerous other water storage and diversion projects influence the inflows to and outflows from the Bay-Delta Estuary.

The SWRCB has issued numerous orders and decisions regarding water quality and water right requirements for the Bay-Delta Estuary. The current water quality objectives are set forth in the 1995 Bay-Delta Plan, adopted May 22, 1995. The current water right requirements, applicable only to the CVP and the SWP, are set forth in Water Right Decision 1485 (D-1485), adopted in 1978, and in Order WR 95-6, adopted in 1995. The SWRCB adopted D-1485 to implement the objectives in the 1978 Water Quality Control Plan for the Sacramento-San Joaquin Delta and Suisun Marsh. The SWRCB adopted Order WR 95-6 in response to a petition filed by the DWR and the USBR to change some of the requirements in D-1485. Order WR 95-6 removes inconsistencies between D-1485 and the flow-dependent objectives in the 1995 Bay-Delta Plan, but expires at the end of December 1998.

The primary purpose of this hearing is to receive testimony and other evidence regarding the assignment of responsibility among water right holders to implement the flow-dependent objectives in the 1995 Bay-Delta Plan. The decision resulting from this hearing is intended to supersede D-1485 and Order WR 95-6 as the regulatory mechanism for water rights implementation of the current flow-dependent water quality objectives in the 1995 Bay-Delta Plan. Other purposes of the hearing are to receive testimony and other evidence regarding the petitions for change that request authorization of (1) the proposed joint points of diversion under CVP and SWP water rights and (2) the proposed changes in place of use and purposes of use of certain CVP water right permits.

As the Program of Implementation in the 1995 Bay-Delta Plan recognizes, in the interim period before the SWRCB adopts a water right decision to implement the objectives in the 1995 Bay-Delta Plan, the DWR and the USBR are meeting the objectives in the 1995 Bay-Delta Plan. This interim implementation is based primarily on biological opinions issued to the USBR and the DWR by the California Department of Fish and Game, U.S. Fish and Wildlife Service, and National Marine Fisheries Service. The USBR is the only party currently responsible for releasing water to meet the 1995 Bay-Delta Plan\'s Vernalis flow objectives pursuant to the March 6, 1995, biological opinion issued by the U.S. Fish and Wildlife Service for the threatened Delta smelt.

Several agreements are being negotiated or have been negotiated among the parties interested in this proceeding. The agreements present joint positions of parties on the allocation of responsibilities for flows from different areas in the watersheds of the Bay-Delta and for management measures. These agreements include a "Vernalis Adaptive Management Plan" that would propose an allocation of responsibilities to meet the Vernalis flow objectives (being negotiated); a Suisun Marsh agreement (drafted and awaiting environmental documentation); and a Mokelumne River Agreement (executed).

If the parties interested in the Vernalis flow objectives reach an agreement concerning responsibilities for meeting these objectives, the SWRCB may, at the request of the interested parties, commence this hearing by separately hearing evidence on whether the agreement should be accepted as the implementation mechanism for meeting the responsibilities of the water right holders supporting it. Even if the SWRCB commences the hearing with a review of such an agreement, it will also hear evidence on the other flow alternatives for the San Joaquin River during the remainder of the water right hearing, along with the other issues for hearing.

REGULATORY BASIS FOR ACTION

The SWRCB has continuing authority under Water Code sections 100 and 275 to enforce the requirements of the California Constitution, Article X, section 2, with respect to all water right holders, including pre- and post-1914 appropriative rights and riparian rights. Article X, section 2, directs that the water resources of the state be put to beneficial use to the fullest extent, and that water not be wasted or unreasonably used. It further provides that rights to the use of water are limited to such water as is reasonably required for the beneficial use served, and does not extend to the waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of the water.

The SWRCB has continuing authority over all water rights under the common law public trust doctrine. (See National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 [189 Cal.Rptr. 346].

The SWRCB has authority to review existing water rights and to ascertain whether water is diverted and used within the limits of such rights, including protecting other legal users of the water. (Wat. Code Section 1050 et seq.)

Water Code section 1394 authorizes the SWRCB to include a reservation of jurisdiction in a permit when issues relating to protection of vested rights, protection of the public interest, and coordination with other projects cannot be resolved when the application is approved. Reservations of jurisdiction are included in most of the SWP and CVP permits. Since 1965, the SWRCB has reserved jurisdiction over water right permits within the Bay-Delta Estuary watershed through use of Standard Water Right Permit Term 80.

The SWRCB can approve petitions for changes in points of diversion, place of use, and purpose of use under Water Code sections 1700-1707.

KEY HEARING ISSUES

• What requirements for implementing the flow-dependent objectives in the 1995 Bay-Delta Plan should be adopted in a water right decision? The draft EIR presents a number of alternatives for implementing each of the groups of flow-dependent water quality objectives in the 1995 Bay-Delta Plan through amendments to existing water rights. The draft EIR, Chapter II, describes seven alternatives for implementing the flow objectives Footnote4 in the 1995 Bay-Delta Plan. Meeting the flow objectives will require releases or bypasses of water and other changes in the exercise of water rights affecting the Bay-Delta Estuary. The draft EIR, Chapter II, also describes flow-dependent alternatives for implementing the Suisun Marsh salinity objectives, for implementing salinity objectives in the southern Delta, for implementing the dissolved oxygen objectives for the San Joaquin River between Stockton and Turner Cut, and for operating the proposed joint points of diversion. These alternatives can be combined in different ways, and can be modified. What set of components should be combined in a decision to best serve the public interest? How should each of the selected alternatives be modified to ensure that it: (1) meets the reasonableness requirements of California Constitution, Article X, section 2, (2) is feasible, (3) appropriately protects water rights, fish and wildlife, and public trust uses, and (4) meets all applicable provisions of law?
• Should the SWRCB approve the petitioned changes of point of diversion under the CVP and SWP permits? What terms and conditions, if any, should be added to the CVP and SWP permits under consideration if the SWRCB approves these changes?
• Should the SWRCB approve the petitioned changes of place of use and purpose of use of water under the CVP permits? What terms and conditions, if any, should be added to the CVP permits under consideration if the SWRCB approves these changes?
• What negotiated agreements have been reached among the parties, addressing (1) an allocation of responsibility for meeting specific objectives in the 1995 Bay-Delta Plan, (2) the petition for change of points of diversion filed by the DWR and the USBR, or (3) the petition for change of places of use and purposes of use filed by the USBR? Assuming that parties have reached a negotiated agreement, and the agreement is submitted to the SWRCB in this proceeding, should the SWRCB adopt the regulatory portions of such agreement?
• Is SWRCB action necessary to ensure that water is used within the constraints of California Constitution, Article X, section 2 and the public trust doctrine? What facts and circumstances support a finding that action is required?

HEARING PARTICIPATION

IF YOU WANT TO TAKE PART IN THIS HEARING: All those persons who plan to participate in this hearing should carefully read Enclosure 1, entitled "Information Concerning Appearances by Parties". As stated in Enclosure 1, parties intending to present evidence at the hearing must submit a "Notice of Intent to Appear" which must be RECEIVED by the Board at or before 5:00 p.m. on January 6, 1998. Written testimony and other exhibits must be RECEIVED by 5:00 p.m. on February 6, 1998.

Questions: Contact Victoria A. Whitney, Chief, Bay-Delta Unit at (916) 653-1516 (FAX 916-657-1485) or to Barbara J. Leidigh, Senior Staff Counsel at (916) 657-2101

Note: Map, Enclosure 2(a), 2(b) and (c), are not electronically available.

Footnote1

Flow-dependent objectives are defined to include all objectives that could be met by the flow of water or by changes in the operations of facilities, notwithstanding that such objectives also could be met entirely or partially through other means, such as management measures and waste discharge requirements.

Footnote2

The SWP has an authorized point of diversion in the southern Delta at Italian Slough, but the SWP does not currently have a diversion facility at that location.

Footnote3

Some of this is also used in the Estuary watershed.

Footnote4

The flow objectives include (1) the Delta outflow objectives, (2) salinity objectives in the Delta that occasionally control Delta outflow, (3) the flow objectives on the Sacramento River at Rio Vista, (4) the flow objectives on the San Joaquin River at Vernalis, and (5) the salinity objectives on the San Joaquin River at Vernalis.

Enclosure 1

BAY-DELTA WATER RIGHTS HEARING

INFORMATION CONCERNING APPEARANCES BY PARTIES

Please take note that the following procedural requirements will apply for purposes of the above-mentioned hearing.

1. PARTIES: The parties are the water right holders whose exercise of their water rights may be modified as a result of this hearing and other interested persons or entities who intend to present evidence. A person or entity who appears and presents only a policy statement will not be considered a party.

2. NOTICE OF INTENT TO APPEAR: Each party intending to participate must submit to the SWRCB and to each of the other parties the name of each witness who will testify in such party\'s behalf, together with certain other information. This information must be submitted on the enclosed Notice of Intent to Appear and received by the SWRCB by 5:00 p.m., January 6, 1998. Twenty copies shall be submitted to the SWRCB. Approximately two weeks after receiving the notices of intent to appear, the SWRCB will provide to each party who has indicated an intent to present evidence copies of the notices of intent to appear and a "list of parties to exchange written testimony and other exhibits".

Hard copies of any Notices of Intent to Appear provided to the SWRCB by FAX must be received by the SWRCB within three working days after the due date, for inclusion in the hearing record.

3. WRITTEN TESTIMONY: Each party proposing to present testimony on factual or other evidentiary matters at the hearing shall submit such testimony in writing. Each piece of written testimony is, and shall be treated as, an exhibit (See item 4 below.). Oral testimony that goes beyond the scope of the written testimony may be excluded.

4. EXHIBITS: Each party wishing to present exhibits shall submit twenty copies of its exhibits to the SWRCB and serve one copy on each of the other parties listed on the "list of parties with whom to exchange written testimony and other exhibits". Exhibits must be received by the SWRCB by 5:00 p.m., February 6, 1998. Each party shall complete and submit the enclosed Exhibit Identification Index along with its exhibits (the Status as Evidence column will be completed during the course of the hearing; written testimony is considered an exhibit). A statement of service with manner of service indicated shall be filed with each party\'s exhibits.

a. Public records of the SWRCB that are relevant to the subject of the hearing, and books, reports, and other documents that have been prepared and published by a governmental agency, if otherwise admissible, may, in the discretion of the hearing officer, be received in evidence as exhibits by reference if the original or a copy is in the possession of the SWRCB and the exact file or other location (e.g., application folder number) where it can be found is identified. Even though a document may be offered by reference, parties are encouraged to submit copies of the portions of such documents upon which they intend to rely to the SWRCB and to other parties, in the same manner as for other exhibits.

b. Exhibits which rely on unpublished technical documents may be excluded upon objection unless the unpublished technical documents are admitted as exhibits.

5. ORAL TESTIMONY:

a. Oral testimony will be taken only on oath or affirmation. Each party has the right to call and examine witnesses, introduce exhibits, cross-examine opposing witnesses on any matter relevant to the issues even if that matter was not covered in the direct examination, impeach any witness, rebut adverse evidence, and subpena, call and examine an adverse party or witness as if under cross examination. Board members and the Board\'s staff may ask questions for clarification at any time, and the Board members and staff may cross examine any witness. Ordinarily, only the party or the party's representative will be permitted to examine witnesses, but the hearing officer may allow examination by a person technically qualified in the subject being considered.

b. All witnesses presenting testimony shall appear at the hearing. Before testifying, witnesses shall swear or affirm that the written and oral testimony they will present is true and correct. Written testimony shall not be read into the record. Witnesses will initially be allowed twenty minutes to summarize or emphasize their written testimony on direct examination. Each party will be allowed three hours total to present all of its direct testimony. Cross examination will be permitted on the written submittals and any oral testimony. The initial time for cross examination will be limited to one hour. The hearing officer has discretion to allow additional time for direct testimony or for cross examination if there is good cause demonstrated in an offer of proof. The witnesses for each party will be cross examined as a panel. Redirect examination and recross examination may be permitted for good cause at the discretion of the hearing officer.

6. EVIDENCE: The SWRCB will admit in evidence any relevant, non-repetitive evidence if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Hearsay evidence may be used to supplement or explain any direct evidence, but over objection, it shall not be sufficient by itself to support a finding unless it would be admissible over objection in civil actions. The rules of privilege are effective to the same extent as in civil actions. Irrelevant or unduly repetitive evidence will be excluded. The hearing officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time.

7. OFFICIAL NOTICE: During or after the hearing, the SWRCB may take official notice of such matters as may be judicially noticed by the courts of this State. The SWRCB may also take official notice of generally accepted technical or scientific matter within the SWRCB\'s field of expertise, provided parties appearing at the hearing shall be informed of the matters to be noticed. Upon request, parties to the hearing shall be given a reasonable opportunity to refute matters proposed for official notice. Officially noticed matter shall be included in the record.

8. REBUTTAL: Rebuttal evidence will be allowed after all parties have presented their cases in chief and their witnesses have been cross-examined. At the end of the cases in chief, the hearing officer will set a schedule for parties to submit their rebuttal evidence and for the conduct of rebuttal.

9. ADMISSION OF EVIDENCE: Absent severe hardship, proposed evidence that does not comply with the above requirements will not be admitted.

10. EX PARTE CONTACTS: As provided in Government Code sections 11430.10-11430.80, ex parte communications between board members or staff of the SWRCB and any of the parties regarding substantive issues within the scope of the proceeding are prohibited during the pendency of the proceeding. Communications regarding procedural matters should be directed to SWRCB staff.

11. SUMMARIES AND LEGAL ARGUMENTS: At the beginning of each case in chief, the party or the party's attorney may make an opening statement briefly and concisely stating what the proposed evidence is intended to establish. At the close of the hearing, the hearing officer will set a schedule for filing briefs. Twenty copies of each brief shall be submitted to the SWRCB, and one copy shall be served on each of the other parties. A statement of service with manner of service indicated shall be filed with each brief.

12. POLICY STATEMENTS: A policy statement is a nonevidentiary statement. It may include (1) the policy views and position of the speaker, (2) non-expert analysis of evidence that already has been presented, or (3) argument concerning the contents of documents. Persons who wish to make only a policy statement may do so, subject to the following provisions:

a. Persons making such statements will not be sworn or asked to affirm the truth of their statements.

b. Such persons must not attempt to use their statements to present evidence of facts, either orally or by introduction of written exhibits, and their statements will not be relied upon to establish the truth of any matter before the SWRCB.

c. At the discretion of the hearing officer, questions may be addressed to persons making only policy statements for the purpose of clarifying their statements. However, such persons shall not be subject to cross-examination.

d. Policy statements are not subject to the prehearing requirements noted above for testimony or exhibits.

e. The SWRCB requests that policy statements be provided in writing before they are presented. Oral summaries of the policy statements will be limited to five minutes or such other time as established by the hearing officer.

f. Persons wishing to make policy statements are required to file a Notice of Intent to Appear, indicating clearly an intent to make only a policy statement.

12. HEARING PROCEDURES: Except as provided herein, the hearing will be conducted as closely as practicable to the procedures for water right hearings set forth at California Code of Regulations, title 23, sections 648-648.6 and 761-766, as they currently exist or may be amended before the hearing.

Failure to submit witness information and exhibits in a timely manner may be interpreted by the SWRCB as intent not to appear.

If there is any change in the hearing schedule, only those parties who have filed a Notice of Intent to Appear will be informed of the change.

Materials submitted to the SWRCB should be addressed as follows:

Division of Water Rights
State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000
Attn: Victoria A. Whitney