TO: Parties, Bay-Delta Water Rights Hearing

PROCEDURAL INQUIRIES: BAY-DELTA WATER RIGHTS HEARING

The State Water Resources Control Board (SWRCB) has received a number of letters asking questions and making procedural requests in connection with the Bay-Delta Water Rights Hearing. This letter responds to some of those letters. The letters responded to in this letter do not indicate that they were copied to all of the parties, as required by the SWRCB’s rules for this hearing. Accordingly, the writers of these letters are asked to send copies of their letters to the other parties, and the following responses are tentative. If the SWRCB receives comments on these responses, I may issue a further response.

1.Letter from Jeanne Zolezzi for Stockton East Water District, dated May 20, 1998.  Ms.Zolezzi requests that:  (a) all issues regarding southern Delta salinity be heard in Phase 5; (b)Stockton East Water District be allowed to limit its testimony in Phase 2 to evidence directly supporting or disputing the San Joaquin River Agreement; (c) Stockton East Water District be allowed to present adversarial evidence and legal argument against the proponents of the San Joaquin River Agreement or other parties in later phases of the hearing; (d) the SWRCB confirm that all exhibits and evidence currently contained in the records of the SWRCB that are part of the Bay-Delta hearings may be referenced by the parties without resubmitting those documents at this time.  The responses are as follows:

a.The SWRCB will not preclude parties from presenting evidence regarding southern Delta salinity in phases other than Phase 5, if the evidence is relevant to the phase in which it is presented.  Most of the evidence regarding the responsibilities for meeting the southern Delta salinity objectives should be submitted in Phase 5, but if it is also relevant in another phase, such as Phase 1 or Phase 2, it will not be excluded from that phase. 

b.Phase 2 addresses the responsibilities of the parties who are jointly proposing the San Joaquin River Agreement (SJRA), the Department of Water Resources (DWR), and the United States Bureau of Reclamation (USBR) to meet the flow-dependent objectives.  In Phase 2, the SWRCB wishes to receive evidence on whether the responsibilities proposed in the SJRA should be adopted.  Evidence that does not address the SJRA should be presented at a later time during the hearing.  General evidence regarding the application of alternatives other than the SJRA to these parties may be relevant to determining whether the SWRCB should adopt a decision implementing the responsibilities proposed in the SJRA.  Parties should not, however, present detailed evidence about the other flow alternatives during Phase 2 of the hearing. 

c.As I stated in my letter to Allen Short dated June 4, 1998, adversarial evidence and legal argument regarding the responsibilities of the proponents of the SJRA may be withheld during Phase 2 and presented later in the hearing.  A party withholding evidence and legal argument should tell the hearing officer on the record the nature and scope of the evidence and argument, and that the evidence and argument is being withheld.  The SWRCB will receive any relevant adversarial evidence and legal argument from parties proposing alternatives to the SJRA before taking action to approve any of the alternatives. Also, whenever such evidence is relevant in other phases, parties will be allowed to present evidence about the responsibilities of the proponents of the SJRA or other parties.

The hearing notice allows only a party to an agreement to forego presenting adversarial evidence against other parties to the agreement during the appropriate phase and then subsequently request that the phase be reopened.  I understand that Stockton East Water District is not a party to the San Joaquin River Agreement.  Consequently, if Stockton East Water District withholds evidence that is relevant only in Phase 2, it may forfeit its opportunity to present such evidence. 

d.Pursuant to its regulations, the SWRCB has discretion to accept in evidence by reference documents relevant to the subject of the hearing if (1) the document is a public record of the SWRCB or has been prepared and published by a public agency, (2) the original or a copy is in the possession of the SWRCB, (3) the specific file folder or other exact location of the document is identified, and (4) the party offering the exhibit by reference designates the particular portions of the document on which the party relies.  Documents received in past Bay-Delta hearings are not necessarily relevant to the subjects of the current hearing, even if they meet the other criteria.  A party should not deposit a document with the SWRCB for the purpose of offering the document in evidence by reference if that would effectively deprive the other parties of an opportunity to prepare cross-examination or rebuttal of the document.  Documents that do not meet the criteria cannot be accepted in evidence by reference, and consequently copies must be provided to all of the parties.  If a document meets all of the criteria, the SWRCB nevertheless has discretion to decide whether to accept it by reference, or exclude it unless copies are provided to all of the parties.  The hearing officer may decide during the hearing, either after an objection by a party or on his own motion, whether to accept an otherwise qualified exhibit by reference or to require that copies be provided to all of the parties before the exhibit is accepted. 

2.Letter from Ernest Conant, representing Del Puerto Water District.  Mr. Conant requests that the SWRCB accept a Notice of Intent to Appear from Del Puerto for Phase 7 of the hearing, regarding the Bureau of Reclamation’s petition to change and consolidate its place of use.  Del Puerto already had filed a Notice of Intent to Appear for the hearing, but specified participation in only the earlier phases. 

This response is intended to clarify the hearing notice.  Only one Notice of Intent to Appear is required for each party, and it applies to all of the phases of the hearing.  The SWRCB does not expect, however, that all parties will wish to participate in all phases of the hearing.  For the purposes of ordering the presentation of evidence in each phase and estimating the time needed, the SWRCB needs to know the phases in which each party will participate.  Therefore, the hearing notice requests that parties specify the phases in which they intend to participate.  This specification can be provided by letter, separately from the Notices of Intent to Appear, but should be provided as soon as possible, and not later than the date when exhibits are due for any phase in which the party will participate. 

3.Two faxed letters from Tim O’Laughlin, representing the signatories of the San Joaquin River Agreement.  Mr. O’Laughlin asked (a) when several parties make a joint presentation, whether the parties should present a joint exhibit list or a separate list for each party, and whether a master witness list should be provided, with reference to each party’s witness list; (b) whether five biologists hired by five different signatories to the agreement can testify as a panel in the case in chief;  (c) whether a party can submit a resume and testimony for a witness who was not listed in the party’s Notice of Intent to Appear and have the witness testify in the hearing; and (d) whether the SWRCB staff will present evidence regarding Phase 2, and if so how much time will be needed by the staff.  The responses are as follows:

a.Parties making a joint presentation may present a joint exhibit list for the jointly presented exhibits.  A joint exhibit list is preferable where several parties are presenting the same exhibits in a joint presentation.  Exhibits that are not jointly presented should be listed on separate exhibit lists for each party.  A master witness list with reference to each party’s witness list might be helpful, but is not required. 

b.Panel presentations of expert testimony are welcomed in the hearing.  Each group of parties intending to jointly present a panel of experts in a case in chief should notify the SWRCB’s staff in advance of the phase of the hearing in which the testimony will be presented, so that the SWRCB can set an appropriate order of proceeding that accommodates the joint presentation. 

c.If a party submits written testimony and expert qualifications for a witness who was not listed in the party’s list of witnesses, other parties may object at the hearing to presentation of the testimony as part of the party’s case in chief.  If there is an objection, the hearing officer will decide at that time whether to allow the testimony.  A primary consideration will be whether or not the objecting party is prejudiced by the late notification that the witness will testify. 

If the witness was listed by another party, the party who failed to list the witness may contact the other party and seek to make arrangements with that party to include the desired information in the written testimony for the other party, or may cross-examine the witness during the hearing. 

d.The SWRCB staff has sent to the parties a list of staff exhibits that will be offered in evidence by reference at the beginning of the hearing.  This list was mailed to the parties on May 20, 1998.  SWRCB staff does not plan to present testimony in the hearing. 

4.A letter from Allen Short, Coordinator for the San Joaquin River Group, requesting a prehearing conference two weeks before the commencement of Phases 1 and 2 of the hearing. Mr. Short requested that the prehearing conference seek agreement on the following:  (a)clarification of the issues, (b) identify the parties participating in Phases 1 and 2, (c)identify the number of witnesses, (d) the order of presentation of evidence and cross-examination, and (e) the schedules for commencement and conduct of the hearing.

The SWRCB will not set a prehearing conference.  The matters raised by Mr. Short are routinely handled by the SWRCB in water right hearings.  Specific responses to the items raised by Mr. Short are as follows: 

a.Clarification of the issues and the procedures is ongoing.  This letter and other letters that the SWRCB is sending to all of the parties set forth responses to questions that have been raised by the parties in writing.  Additionally, procedural questions may be telephoned to the SWRCB staff listed in the hearing notice.  If a procedural ruling is requested, I or Mr.Stubchaer will decide on the ruling. 

b.The parties who will participate in Phases 1 and 2 will identify themselves through their notices of intent to appear and their submittal of exhibits for each phase in which they intend to participate.  A party who wishes to participate through cross-examination and possibly rebuttal, but does not plan to present evidence in a case in chief may do so, but is asked to notify the SWRCB and the other parties.  This will help the SWRCB set the order of cross-examination before the hearing starts. 

c.In advance of a phase of the hearing, the maximum number of witnesses may be determined by the number of written testimony documents contained in the parties’ exhibits for each phase of the hearing.  Of course, a party may decide not to present all of its witnesses, and this will reduce the number of witnesses.

d.The SWRCB will set the order of presentation of evidence and cross-examination for each phase, and I or Mr. Stubchaer will announce the order on or before the first day of each hearing phase.  Ordinarily, the order of cross-examination is the same as the order of presentation. 

e.The hearing is scheduled to commence on July 1, 1998.  The SWRCB will first take appearances of the parties, and then will open Phase 1 and receive the evidence for Phase1.  After Phase 1 is completed, the SWRCB will open Phase 2 on the next scheduled hearing date. The SWRCB intends to move through the hearing phases in the order they are presented in the hearing notice.  The SWRCB will set additional hearing dates as necessary to complete all of the phases. 

5.The SWRCB has received a number of Notices of Intent to Appear from interested persons wishing to present policy statements.  Policy statements are defined in the SWRCB’s regulations at California Code of Regulations, title 23, section 648.1(d).  The SWRCB will hear general policy statements and policy statements for Phase 1 on July 1 after taking the appearances of the parties.  The SWRCB will hear policy statements for each subsequent phase of the hearing on the first day of that phase.  Policy statements are statements by interested persons who are not participating in the Bay-Delta Water Rights Hearing as parties.  Parties may make similar statements, but are expected to do so as part of an opening statement when they are called to present their cases in chief.  A party who wishes to make an opening statement in a particular hearing phase, but will not present evidence in a case in chief during that phase, will be given an opportunity to make the opening statement at the beginning of the hearing phase.

6.The hearing notice states that exhibits for Phases 3 and 4 are due June 20, 1998.  Because June 20 falls on a weekend, the exhibits will be timely if they are received by the SWRCB by 5:00 p.m. on June 22, 1998.

If you have questions about this letter, you may contact Barbara J. Leidigh, Senior Staff Counsel, of the Office of Chief Counsel at (916) 657-2102.

Sincerely,

Signed by John Caffrey on 11 June 1998

John Caffrey

Chairman

cc: Service List