SUPPLEMENT TO

REVISED NOTICE OF PUBLIC HEARING

for PHASE 2A

Bay-Delta Water Rights Hearing

On Wednesday, July 1, 1998 at 9:00 a.m. and on July 2, 14, 15, 16, 21, 22, 28, 29, and 30, August 4, 5, 6, 18, 19, and 20,  September 15, 16, 22, 23, and 24, October 13, 14, 15, 20, 21, 27, 28, and 29 if necessary, at times to be announced on the previous hearing day.

 Additional days will be announced as necessary. 

at

Paul R. Bonderson Building

Hearing Room

901 P Street, Sacramento

THIS IS NOTICE THAT, having conducted a modified Phase 2 of the above-entitled hearing, the State Water Resources Control Board (SWRCB) will conduct Phase 2A in the above-entitled hearing.  The exhibits for phase 2A will be due on September 1, 1998.

This notice supplements the Revised Notice of Public Hearing issued on May 6, 1998.  It does not withdraw any provision set forth in the May 6, 1998 notice, but it does supersede previous rulings to the extent of any conflict. 

The SWRCB is receiving evidence in phases, with each phase focusing on a particular subject or subjects.  The subject of Phase 2 as noticed on May 6, 1998, was the San Joaquin River Agreement (SJRA) and the alternatives to the agreement applicable to the responsibilities of water right holders in the watershed of the San Joaquin River to meet the flow-dependent objectives.  The May 6, 1998 Revised Notice of Public Hearing authorized the parties to an agreement to withhold adversarial evidence and legal arguments against each other, and present that evidence in a later phase of the hearing, if they believe that is necessary.  By letter dated June 11, 1998, the SWRCB authorized other parties in addition to the parties to the SJRA to withhold evidence and argument against the parties to the SJRA during Phase 2 and then present their adversarial evidence regarding the responsibilities of the parties to the SJRA in a later phase, before any action would be taken by the SWRCB on the SJRA.  Accordingly, the letter ruling dated July 16, 1998, addressed to Mr. Tim O’Laughlin, stated that, “During Phase 2, the SWRCB wishes to hear evidence that addresses the SJRA.  This should not include detailed evidence about the other flow alternatives that could be imposed on the parties who are jointly proposing the SJRA.”

In Phase 2A, the SWRCB will receive evidence and legal argument from parties opposing setting responsibilities as proposed in the SJRA, and any further evidence supporting the SJRA or addressing the alternatives to the SJRA.  Evidence in Phase 2A should address the responsibilities of the parties who are jointly proposing the SJRA, the Department of Water Resources (DWR), and the U.S. Bureau of Reclamation (USBR), including any relevant adversarial evidence supporting alternatives to the SJRA applicable to the affected water right holders.  Evidence in Phase 2A also should address whether or not any water right order implementing the regulatory portions of the SJRA should either establish or eliminate any responsibility for meeting 1995 Bay-Delta Plan objectives that might be allocated to water right holders in the San Joaquin River watershed who are not parties to the SJRA. 

PHASE 2A HEARING ISSUES¹

1. What requirements for implementing the flow-dependent objectives in the 1995 BayDelta Plan should be adopted in a water right decision applicable to the SanJoaquin River watershed?  The draft EIR presents a number of alternatives for implementing each of the groups of flow-dependent water quality objectives in the 1995 BayDelta Plan through amendments to existing water rights.  The draft EIR, Chapter II, describes seven alternatives for implementing the flow objectives² 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 alternatives can be combined in different ways, and can be modified.  What set of components should be combined in a decision to implement the water quality objectives?  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; (4) meets the county of origin and watershed of origin statutory provisions (Wat. Code  1215-1222, 10505, 10505.5, 11128, and 11460-11463); and (5) meets all other applicable provisions of law?
2. With respect to the SJRA, should the SWRCB add water right terms and conditions to the water rights of the parties to the agreements or take other actions consistent with the SJRA?  Should an SWRCB action consistent with the SJRA establish or eliminate responsibility on the part of water right holders listed in Enclosure 2a of the May 6, 1998 Revised Notice of Public Hearing, who are not signatories to the SJRA?  Should any SWRCB action consistent with the SJRA require that the DWR and the USBR take full responsibility for meeting the Bay-Delta flow objectives that otherwise might be allocated to other water right holders within the San Joaquin River watershed?
3. What evidence supports the SWRCB’s exercising its jurisdiction and taking action regarding the water rights listed in Enclosure 2, for the purpose of ensuring that water originating within the watersheds of the Bay-Delta Estuary is diverted and used within the constraints of California Constitution, Article X, section 2 (the reasonable use doctrine) and the public trust doctrine?  These doctrines establish constraints on the exercise of water rights in California.  SWRCB action implementing these doctrines must be supported by findings of fact and conclusions of law.  These doctrines are a legal basis for the SWRCB’s jurisdiction to assign responsibilities to the water rights set forth in Enclosure 2. 

Questions concerning this notice may be directed to Victoria A. Whitney, Chief, Bay-Delta Unit, at (916) 653-2516 (FAX (916) 657-1485), or to Barbara J. Leidigh, Senior Staff Counsel, at (916) 657-2102. 

/s/ Dale Claypoole for

Maureen Marché

Administrative Assistant to the Board

Dated:  August 12, 1998

__________________________________

¹  Issue 1 is based on Key Issue 2 in the Revised Notice of Public Hearing dated May 6, 1998,  Issue 2 is based on Key Issue 5, and Issue 3 is identical to issue 6 in the Revised Notice of Public Hearing.  The Issues listed herein are intended to clarify the scope of Phase 2A, and do not supersede the Key Issues in the Revised Notice of Public Hearing.

²  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.