|
SUBJECT OF HEARING
The State Water Resources Control Board (SWRCB) is conducting the Bay-Delta Water Rights Hearing for the purpose of receiving evidence regarding the rights and responsibilities of water right
holders whose use of their water rights affects the beneficial uses of water in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (Bay-Delta).[1] The SWRCB has concluded Phases 1
through 7 of this hearing.
On December 29, 1999, the SWRCB issued Decision 1641 (D-1641) on the subjects considered in Phases 1 through 7 of this
hearing, based on the hearing record compiled to date. In D-1641, the SWRCB approved changes in the places of use and purposes of use of water in water rights held by the United States Bureau of
Reclamation (USBR); approved additional points of diversion in the water rights of the Department of Water Resources (DWR) and the USBR[2]; revised the responsibilities of the Projects to meet Suisun
Marsh objectives; established the responsibilities of water right holders in the watershed of the San Joaquin River upstream of Vernalis through the year 2011 unless the San Joaquin River
Agreement is terminated earlier; established the responsibilities of water right holders in the watersheds of the Mokelumne River, Putah Creek, and Cache Creek, and in the North Delta Water Agency for
the purposes of this proceeding; and assigned interim responsibility to the Projects for the remaining measures to meet the flow objectives.
Further hearing is required to reach a decision on the responsibilities of water right holders whose responsibilities have not yet been decided.
In the Bay-Delta Water Rights Hearing, the SWRCB is considering alternatives for implementing objectives in the 1995 Bay-Delta Plan.
To implement the objectives, the SWRCB is considering alternatives for allocating responsibility among water right holders who could be required to release or bypass water or to make changes in the
operations of facilities that the water right holders use to exercise their water rights. The hearing addresses the responsibilities of the holders of the water rights listed in Enclosure 2.[3] Other water right holders may be required to help meet flows as a result of future proceedings.
The Bay-Delta Water Rights Hearing is intended to establish water right 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 the SWRCB modifies existing water rights as a result of this hearing, it
will do so only for the limited purpose of assigning responsibility for meeting water quality objectives in the 1995 Bay-Delta Plan.
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. More than half 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[4] is diverted from the Estuary, primarily the southern Delta, for consumptive uses south and west of the Delta.
The State Water Project (SWP) and the federal Central Valley Project (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 water right requirements in effect at the beginning of this hearing to implement Bay-Delta objectives applied only to the Projects. The requirements
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. The SWRCB replaced Order WR 95-6 (June 1995) with Order WR 98-09 (December 1998), and later replaced Order WR 98-09 with interim conditions in D-1641
applicable to the water rights of the Projects. The interim terms and conditions requiring compliance with the flow objectives will expire on
November 30, 2001, unless they are extended or replaced by that date.
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 § 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. Additionally, the SWRCB has continuing authority over all
permits and licenses under article X, section 2 of the California Constitution and under the Public Trust Doctrine.
SUBJECT OF PHASE 8
The purpose of Phase 8 of the Bay-Delta Water Rights Hearing is to receive evidence and legal argument on the assignment of the remaining responsibilities for meeting the flow-dependent
objectives[5] in the 1995 Bay-Delta Plan. The water right holders whose responsibilities will be considered in Phase 8 of the Bay-Delta
Water Rights Hearing are listed in Enclosure 2 attached to this notice. These parties are located within the watersheds of the Sacramento,
Cosumnes, and Calaveras river watersheds. In Phase 8, the SWRCB will not revisit the responsibilities of parties whose responsibilities were established in D-1641.
CONDUCT OF PHASE 8
In the Bay-Delta Water Rights Hearing process, the SWRCB has repeatedly encouraged opposing parties to reach agreements and to
make joint proposals to the SWRCB to set the responsibilities of the parties to help meet the flow objectives in the 1995 Bay-Delta Plan. The SWRCB may receive one or more joint proposals based on
agreements among opposing parties before or after it commences Phase 8.[6] The SWRCB intends to receive evidence regarding
agreed-upon proposals at its earliest opportunity. If an agreement is received early enough, the SWRCB will set the order of presentation
of cases in chief to hear the cases in chief of the agreeing parties before hearing other cases in chief.
In presenting an agreement, the parties to an agreement may, if they so advise the SWRCB, withhold any alternative evidence and legal arguments against each other that they would present in the absence
of the agreement. Other parties will be required to present any evidence and legal argument adverse to the agreement during Phase
8. The SWRCB will, if it is notified that the agreeing parties are withholding evidence against each other, subsequently notify the
agreeing parties if it appears that the SWRCB’s decision will not give substantial deference to the agreement, and will give the agreeing parties who withheld evidence an opportunity to present their
adversarial evidence before the SWRCB makes a decision as to the responsibilities of the agreeing parties. If necessary, the subsequent notice and opportunity to present evidence could occur as a
continuation, separately noticed, of the hearing after other evidence and argument are complete.
In the Bay-Delta Water Rights Hearing, the SWRCB has accepted in evidence and has certified a final Environmental Impact Report for Implementation of the 1995 Bay-Delta Water Quality Control Plan
(EIR). The EIR analyzes the environmental effects of implementing the 1995 Bay-Delta Plan, including alternatives for assigning responsibility to the parties whose rights are the subject of Phase 8.
Copies of the final Bay-Delta EIR, including appendices, are available from Ms. Linda Valin at (916) 657-1361 or from the SWRCB Division of Water Rights’ (Division) website at http://www.waterrights.ca.gov/baydelta.
The SWRCB may amend or supplement the EIR if necessary to address changed conditions or new information that becomes available in connection with Phase 8 of the Bay-Delta Water Rights
Hearing. Any changes to the EIR will be submitted as staff exhibits for the hearing. Whether or not the SWRCB amends or supplements the EIR, the SWRCB will file a new notice of determination under the
California Environmental Quality Act (CEQA) after it adopts a new decision that is subject to CEQA. Any new notice of determination
for a decision that relies on the EIR certified on December 29, 1999, or on that EIR as supplemented, will state that the EIR is relied upon by the SWRCB in adopting the decision.
The hearing record in the Bay-Delta Water Rights Hearing, which includes Phase 8, contains all of the evidence received in the hearing record during Phases 1 through 7.[7] For Phase 8, the evidence
received in Phases 1 through 7 will be augmented by the evidence received in Phase 8. A list of the evidence received in the hearing can be obtained from the SWRCB’s Bay-Delta staff or from the
Division’s internet website at http://www.waterrights.ca.gov/baydelta. Evidence contained in the hearing records of past decisions of the
SWRCB is not evidence in the Bay-Delta Water Rights Hearing unless it is specifically received in evidence in the Bay-Delta Water Rights Hearing.
The SWRCB commenced Phase 8 with a special session on April 11 and 12, 2000. The session on April 11 and 12 addressed the Bear River Agreement among the DWR, South Sutter Water District, and
Camp Far West Irrigation District, and the associated petition for change. The April 11-12 session was the subject of a separate notice
dated February 29, 2000.
As specified above, the remainder of Phase 8 will commence on August 8, 2000. All issues listed below will be under consideration.
The SWRCB requests that the parties file opening briefs on or before July 21, 2000 at 4:00 p.m., explaining their positions on the hearing
issues, the evidence they intend to rely upon to support their cases, and the legal basis for their positions. The SWRCB particularly
requests that the opening briefs explain, with respect to Phase 8, the parties’ interpretations of the area of origin statutes (Wat. Code §§
11460, et seq., 10505, 10505.5, 11128, and 1215, et seq.); the Delta Protection Act (Wat. Code §§ 12200-12205); the reasonable use doctrine (Cal. Const. Art. X, § 2; Wat. Code §§ 100, 275); the
public trust doctrine (See National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 [189 Cal.Rptr. 346]); the SWRCB’s charge in this proceeding as described in U.S v. State Water
Resources Control Board (1986) 182 Cal.App.3d 182 [227 Cal.Rptr. 161] (“Racanelli Decision”), and the application of these legal principles to the party’s case in chief. The parties also may
explain their interpretations of other relevant statutory and case law. In addition to the opening briefs, each party will be allowed to make
an oral opening statement at the commencement of the party’s case in chief.
At the hearing commencing on August 8, 2000, the SWRCB will call first upon Mr. Thomas Howard, Assistant Chief, Division of Water Rights of the SWRCB. Mr. Howard will explain the methods of
calculating the responsibilities of water right holders under Alternatives 2, 3, 4, and 5 as set forth in the Bay-Delta EIR. Mr. Howard supervised the preparation of the Bay-Delta EIR. Parties
are invited to submit their specific questions about the calculation of the alternatives in writing to Mr. Howard. Such questions must be
received by the SWRCB and served on the parties on the Bay-Delta service list on or before May 15, 2000 at 4:00 p.m.
After Mr. Howard testifies and is cross-examined, the SWRCB will call upon the DWR and the USBR to present their cases in chief.
Following the USBR and the DWR, the SWRCB will call upon the parties who will present joint cases in chief, and finally will call upon the individual parties. If opposing parties execute agreements
proposing allocations of responsibility to meet the flow objectives, either before or during the main session of Phase 8, the SWRCB will
receive evidence on the agreements at the earliest opportunity during the hearing.
PHASE 8 KEY HEARING ISSUES
The following hearing issues will be considered in Phase 8.
1. What are the responsibilities of the parties listed in Enclosure 2 to meet the flow-dependent objectives in Tables 1, 2, and 3 of the 1995 Bay-Delta Plan?
Implementing 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 EIR describes and analyzes a range of alternatives[8] 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 descriptions of the alternatives analyzed in the EIR are incorporated by reference in this
notice. The pre-1914 rights listed in Enclosure 2 will be assigned responsibility for meeting the flow objectives only if the SWRCB, after Phase 8, selects Alternative 5 or otherwise allocates
responsibility among water right holders based on the proportion of water they take. The SWRCB may establish responsibilities for the parties using elements from different alternatives.[9]
How should the alternatives be combined or modified in a water right decision implementing the water quality objectives to ensure that the
decision: (1) meets the reasonableness requirements of California Constitution, Article X, section 2, (2) is feasible and supports the
public interest, (3) appropriately protects water rights, fish and wildlife, and public trust uses, (4) meets the county of origin and watershed of origin statutory provisions (Wat. Code §§ 1215-1222,
10505, 10505.5, 11128, and 11460-11463), (5) meets the requirements of the Delta Protection Act (Wat. Code §§ 12200-12205), (6) meets the salmon doubling narrative objective in
the 1995 Bay-Delta Plan, and (7) meets all other applicable provisions of law?
What are the effects on beneficial uses in the Delta of the operations conducted by the CVP and the SWP, and how much water should the Projects provide to help meet the flow objectives in the 1995
Bay-Delta Plan? Additionally, do the CVP and the SWP have special obligations for Delta salinity protection under the Delta Protection Act or other statutory provisions?
What are the effects on beneficial uses in the Delta of the upstream diversions of water by all the water right holders listed in Enclosure 2 in the watersheds of the Sacramento, Cosumnes, and Calaveras
rivers, and how much water should these water right holders provide to help meet the flow objectives in the 1995 Bay-Delta Plan?
2. To support exports of water from the Delta, the State Water Project and the federal Central Valley Project provide flows, termed “carriage water” to repel saline ocean water that
otherwise could be drawn into the Delta due to export pumping. For purposes of establishing the responsibilities of the parties listed in Enclosure 2, how should the SWRCB determine the
need for carriage water, and how should the SWRCB calculate the amount of carriage water? The SWRCB adopted a method for calculating carriage water in Order WR 81-15. Should this method continue to be used, or should a new method be developed?
If the SWRCB adopts Alternative 3 or 4 or a variation of these alternatives using the water right priority system to allocate responsibility among the water right holders listed in Enclosure 2, it
may use a modified standard permit term 91 approach to determine when water right holders must curtail water diversions. Water right
holders subject to this term must curtail diversions when water imported to the basin by the Projects and water released from Project storage exceeds the amount of water required for exports,
carriage water, and inbasin water deliveries that cannot be provided under the Projects’ direct diversion water rights.
3. Should the State Water Project and the Central Valley Project be required to supply water from storage, for compensation, to existing or potential water users in the areas
where water originates?
In the event that the SWRCB requires upstream water users to release water or forego diversions to help meet the flow objectives, should the SWRCB require the SWP and the CVP to supply
replacement water to the upstream water users, for compensation paid by the water users, during periods when the upstream water users have responsibilities for supplying water to meet the flow
objectives? What would be the effects of including or not including such a requirement?
What should be included in a water right decision to address increasing demands for use of water in upstream areas?
4. With respect to any negotiated agreements[10] that are reached among some parties, do the terms of the agreement
satisfy the responsibilities under the relevant water rights to meet the flow objectives? If so, should the SWRCB add water right terms and conditions to the water rights of the parties to
the agreements or take other actions to implement the regulatory provisions of these agreements? If a change petition is included with an agreement, would the petitioned
changes operate to the injury of any legal user of the water involved or otherwise violate statutory requirements for approval of change petitions? If the SWRCB approves
petitioned changes, what terms and conditions will best develop, conserve and utilize, in the public interest, the water proposed to be used as part of the change? (Wat. Code §§
1243, 1243.5, 1253, 1258, 1702, 1707, and 1736.)
As discussed above, parties have executed and submitted to the SWRCB one agreement and a petition for water right changes. The SWRCB held a session of Phase 8 on April 11 and 12 to consider
the agreement and petition. Other agreements may be executed, and change petitions filed, before or during Phase 8 of the hearing.
5. Under Condition 3 on page 147 of D-1641, the DWR and the USBR are required, on an interim basis, to implement the water quality compliance and baseline monitoring plan set forth
in Table 5. What parties should be responsible for implementing this plan on a long-term basis? What is the current status of this plan’s implementation? Are there any
other monitoring and special studies needed that should be addressed in a water rights decision adopted after Phase 8?
6. If the SWRCB does not adopt a full decision based on Phase 8 on or before November 30, 2001, should the SWRCB require a party or parties to meet the flow objectives in the
1995 Bay-Delta Plan for an interim period beyond that date? If yes, how long should interim implementation be required, what terms and conditions should be included, and what parties
should be held responsible?
Under D-1641, the Projects have the interim responsibility to meet the objectives through November 30, 2001. If Phase 8 is not completed by that date, or the SWRCB does not adopt a full
decision on the issues presented in Phase 8 by that date, implementation of the objectives will not be required by the SWRCB after that date unless the SWRCB adopts a further order requiring
interim implementation.
PROCEDURAL MATTERS
For Phase 8, this notice replaces the Revised Notice of Public Hearing issued on May 6, 1998. A copy of the Revised Notice of Public Hearing can be obtained from Nick Wilcox, whose telephone
number is listed below, or from the Bay-Delta internet site, at http://www.waterrights.ca.gov/baydelta/notices/. Enclosure 1, attached, explains the procedural requirements that apply in Phase 8 of the Bay-Delta Water Rights Hearing.
PARKING AND ACCESSIBILITY
The enclosed map shows the location of the Paul R. Bonderson Building in Sacramento. Public Parking is available in the State Garage on 10th Street between O and P Streets, in metered spaces
on area streets, and in the public parking garages on L Street between 10th and 11th Streets and on P Street between 11th and 12th Streets. The First Floor Hearing Room is accessible to persons
with disabilities.
Questions concerning this notice may be directed to Nick Wilcox, Chief, Bay-Delta Unit, at (916) 657-0446 (FAX (916) 657-1485), or to Barbara J. Leidigh, Senior Staff Counsel, at (916) 657-2102.
________________________
Maureen Marché
|
