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To Parties, Bay-Delta Water Rights Hearing RULINGS ON MOTIONS REGARDING PROCEDURAL MATTERS AND PHASE 2B OF THE HEARING The State Water Resources Control Board (SWRCB) recently has received several motions and requests in connection with the Bay-Delta Water Rights Hearing. These are addressed below. Request to Add a Petition to Phase 2B On April 27, 1999, Oakdale Irrigation District (OID) and South San Joaquin Irrigation District (SSJID) filed a petition with the SWRCB pursuant to Water Code section 1735 for a long-term change of place of use and purpose of use of their water rights under water right licenses 3986, 7856, 7857, and 10166, issued on Applications 10978, 10872, 11105, and 12490, respectively. By letter dated May 6, 1999, Mr. Tim O’Laughlin, on behalf of the two districts, requested that the petition be added to the hearing notice for Phase 2B. After reviewing the petition, I have decided not to add it to Phase 2B. Adding it at this time would entail a delay in starting Phase 2B. Further, I believe that the new petition can be considered at a later time without impairing the SWRCB’s ability to reach a decision on the petitions noticed for Phase 2B. Clarification of Phase 2B Notice In his letter dated May 6, 1999, Mr. O’Laughlin clarified that, except for OID, the petitioners do not intend to transfer water pursuant to their change petitions, but mean only to add a place of use and purpose of use of the water to be released on the tributaries to meet the Vernalis flow objective under the Vernalis Adaptive Management Plan. This clarification does not affect the issues that the SWRCB must consider or the findings it must consider making, since the SWRCB’s role is to decide whether to approve the petitioned changes in the water rights. Nevertheless, this clarification of the petitioners’ position should be noted by the parties in preparing for Phase 2B. Request for Extension of Time to Submit Exhibits for Phase 2B By letter dated May 10, 1999, Mr. O’Laughlin requested that the SWRCB extend the due date for Phase 2B exhibits from May 18, 1999, to May 24, 1999 at 5:00 p.m. It does not appear that this time extension will prejudice any party, and consequently this request is granted. Exhibits to be used in Phase 2B must be submitted by May 24, 1999 at 5:00 p.m. Length of Oral Direct Testimony Some parties have filed amended notices of intent to appear for Phase 2B that indicate their witnesses will provide oral direct testimony in their cases in chief, in excess of the 20-minute time limit allowed in the hearing notice. This limit has been uniformly enforced during the Bay-Delta Water Rights Hearing, and is adequate for witnesses to summarize or emphasize their written testimony on direct examination. The hearing notice requires that the parties provide the testimony of their witnesses in writing as an exhibit in advance of the hearing, and provides that oral testimony that goes beyond the scope of the written testimony may be excluded. With these requirements, a witness may present as much testimony, in writing, as is necessary to make the desired points. Consequently, I will not authorize more than twenty minutes for oral testimony of a party’s own witnesses. I will make an exception to this rule if a witness is called as an adverse witness pursuant to a subpoena or other agreement to produce a witness. In this circumstance, if I am satisfied that the party calling the witness could not produce written direct testimony for the witness, I will allow additional time as necessary for the complete oral direct examination of the witness. Request for Procedural Clarification On March 25, 1999, Mr. Kenneth M. Robbins filed a request for procedural clarification regarding several procedural issues and subissues. These involve: (1) the use of the hearing dates remaining after the conclusion of Phase 7, (2) a request for a designated “critical path” for the remainder of the hearing process, and (3) the timing of evidentiary submittals for Phase 8. The SWRCB recognizes that the responses to these issues are important to the parties because they need to plan their efforts, and the SWRCB accordingly intends to continue to provide notice as to future steps in the hearing process as early as possible. In partial response to these questions, the SWRCB has announced the use and nonuse of reserved hearing dates after the conclusion of Phase 7 by cancelling some dates and by scheduling Phase 2B. The SWRCB is not prepared at this time to make an announcement concerning a “critical path” for the remainder of the hearing process. It will not be possible to adequately define the scope of Phase 8 until the Board makes, or specifically declines to make, interim decision(s) on some of the earlier phases. The SWRCB recognizes that the parties will need sufficient time between the notice of Phase 8 and the deadline for submission of exhibits, to allow for adequate preparation. Consequently, the SWRCB will provide any necessary notices at the earliest opportunity. Motion for Clarification: Narrative Objective for Salmon Doubling On May 1, 1999, the Environmental Defense Fund filed a request that the SWRCB clarify that it will implement the narrative objective and outline its means of addressing the narrative objective. This is a matter for the SWRCB’s deliberations on the record of the Bay-Delta Water Rights Hearing, and the appropriate place to respond to the questions raised by the Environmental Defense Fund is in a decision of the SWRCB. Accordingly, a response to this motion would be premature at this time. If you have any questions about this letter, you may contact Barbara Leidigh, Senior Staff Counsel, of the Office of Chief Counsel, at (916) 657-2102. Sincerely,
James Stubchaer Chairman and Hearing Officer |
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