The following procedural requirements will apply and will be strictly enforced 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.
Parties who wish to participate in Phase 8 and have not previously filed a Notice of Intent to Appear in the Bay-Delta Water Rights Hearing must file a Notice of Intent to Appear and twenty copies thereof no later than 4:00 p.m. on May 15, 2000. Parties who previously
submitted their Notices of Intent to Appear need not resubmit their notices, but may file amended notices, with twenty copies, by this deadline. The SWRCB will promptly notify all parties of
any parties who are added to the service list as a result of filing a new Notice of Intent to Appear, and will post this information on the Division of Water Rights’ Bay-Delta internet site. Each party submitting to the SWRCB exhibits in the form of written testimony or other documents,
correspondence, notices, and briefs must at the same time send a copy to every party on the service list. New parties added to the service list shall provide copies of their Notices of Intent
to Appear, including the statements of qualifications of their expert witnesses, to each of the parties on the service list on or before June 16, 2000.
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.), and must be submitted with the other exhibits.
Oral testimony that goes beyond the scope of the written testimony may be excluded.
4. EXHIBITS: Each party wishing to present new exhibits shall submit twenty copies of its exhibits and any new or revised Exhibit Identification Index to the SWRCB and serve one copy of each new exhibit and new or revised index on each of the other parties on the service list. The new exhibits for Phase 8 must be received by the SWRCB by 4:00 p.m. on
June 30, 2000.
Parties intending to rely, during their cases in chief, on exhibits previously submitted to the SWRCB for the Bay-Delta Water Rights Hearing should not resubmit them to the SWRCB, but
shall specifically identify such exhibits in updated exhibit indexes. Parties relying on previously submitted exhibits must, however, provide copies by June 30, 2000 of such previously
submitted exhibits to any new parties added to the service list.
New or revised Exhibit Identification Indexes should be supplied to the SWRCB electronically on a disk or as an attachment to electronic mail sent to wrbaydelta@waterrights.swrcb.ca.gov, in addition to paper copies. The electronic copy of the Exhibit Identification List must be in a
version supported by Microsoft Word 97.
The Status as Evidence column in the Exhibit Identification Index will be completed during the hearing. Written testimony and statements of witness qualifications are considered
exhibits. A statement of service with manner of service indicated shall be filed with each party’s exhibits.
On or before June 30, 2000, parties who do not intend to present a case in chief during Phase 8, but who may wish to cross-examine witnesses or present rebuttal are requested to
notify the SWRCB in writing, with copies to the other parties, of their intention to participate.
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 subpoena, call and examine an adverse party or witness as if under cross examination. Board members and the Board’s counsel may ask questions 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 the party to designate a person technically qualified in the subject being considered to examine a witness.
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 be allowed up to twenty minutes to summarize or emphasize their written testimony on direct examination[1].
Each party will be allowed up to 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 officers have 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, and will be limited to the scope of the cross-examination and the redirect examination, respectively.
6. 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 officers will set a schedule for parties to present their rebuttal evidence. Rebuttal evidence is new evidence used to rebut evidence presented in another party’s case in chief. New witnesses and exhibits may be presented during rebuttal without previous notice. Rebuttal evidence is limited to evidence that is responsive to evidence presented in a case in chief during Phase 8, and it does not include evidence that should have been presented during the presenter’s case in chief. Cross-examination of rebuttal witnesses will be limited to the scope of the witness’ rebuttal testimony.
7. EX PARTE CONTACTS: During the pendency of this proceeding, commencing no later than the issuance of the Notice of Hearing, there will be no 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. Communications regarding solely procedural matters will be permissible, but ordinarily should be directed to SWRCB staff, not board members.
8. SUMMARIES AND LEGAL ARGUMENTS: As explained in the Notice of Hearing, the SWRCB requests that the parties file opening briefs, to be received by the SWRCB 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. At the beginning of each case in chief, the party or the party's attorney also may make an opening statement briefly and concisely stating what the proposed evidence is intended to establish. At the close of the hearing or at other times if appropriate, the hearing officers 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 on the service list. A party shall not attach a document of an evidentiary nature to a brief unless the document is at the time in the evidentiary hearing record or is the subject of an offer of the document in evidence. A statement of service with manner of service indicated shall be filed with each brief.
9. POLICY STATEMENTS:
Consistent with its regulation at California Code of Regulations, title 23, section 648.1(d), the SWRCB will provide an opportunity for presentation of nonevidentiary policy statements or comments by interested persons who are not participating as parties. Policy statements are subject to the following provisions in addition to the regulation:
a. Policy statements are not subject to the prehearing requirements noted above for testimony or exhibits, except that persons wishing to make policy statements are requested to file a Notice of Intent to Appear, indicating clearly an intent to make only a policy statement.
b. 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 officers.
10. HEARING PROCEDURES: The hearing will be conducted in accordance with the procedures for hearings set forth at California Code of Regulations, title 23, sections 648-649.6
and 760, as they currently exist or may be amended. A copy of the current regulations is attached.
Parties shall file their requests in writing when seeking exceptions to procedural requirements.
To provide time for other parties to respond, the hearing officer will rule on procedural requests filed in writing no sooner than fifteen days after receiving the request, unless an earlier ruling is necessary to avoid disrupting 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.