To Parties, Bay-Delta Water Rights Hearing

RULINGS RELATED TO PHASES 2A AND 5

This letter responds to a motion in connection with Phase 2A and two requests in connection with Phase 5 of the Bay-Delta Water Rights Hearing.  The motion regarding Phase 2A, filed May14,1999, on behalf of various Petitioners located upstream of the Delta ¹ (Petitioners), seeks to have the State Water Resources Control Board (SWRCB) strike portions of the Phase 2A closing statements filed by the Department of Water Resources (DWR) and by the State Water Contractors (SWC).  One Phase 5 request, filed May 6, 1999, by the City of Stockton, asks the SWRCB to take official notice of three new exhibits, numbered as Stockton Exhibits 58, 59, and60.  The other Phase 5 request, filed May 27, 1999, on behalf of Westlands Water District, asks the SWRCB to provide it an opportunity to file a reply brief in response to several briefs filed for Phase 5 of the hearing.

The Motion to Strike

The motion filed on behalf of Petitioners alleges that the closing statements filed by DWR and SWC attempt to mislead the SWRCB by their interpretation of the Court of Appeal decision in United States v. State Water Resources Control Board (1986) 182 Cal.App.3d 82.  DWR and SWC respond to the motion by discussing the civil court standards for striking portions of documents, by arguing that the motion to strike is not sustainable under those standards, and by making various substantive arguments regarding the above case and the Petitioners’ understanding of the DWR and SWC briefs.  No statute or regulation directly applicable to this hearing addresses motions to strike.

Striking the specified portions of the DWR and SWC briefs is not justified.  Accordingly, the motion to strike is denied.  In effect, the Petitioners’ motion is a reply to arguments set forth in the closing briefs of the DWR and the SWC for Phase 2A, filed without seeking an opportunity to file a reply brief.  The SWRCB is willing to consider requests for opportunities to file reply briefs, and any future effort to reply to a brief should be preceded by a request to file a reply brief ².  A schedule for reply briefs is set forth below.

Request for Official Notice (Phase 5 Exhibits)

The City of Stockton requests that the SWRCB take official notice of the relevant portions of three documents, all of which were created after the close of Phase 5 of the hearing.  These documents are:

1. San Joaquin River Dissolved Oxygen Cleanup Plan, adopted by the Central Valley Regional Water Quality Control Board in April 29, 1999, as part of the Bay protection and Toxic Cleanup Program Regional Toxic Hot Spot Cleanup Plan (Stockton Exhibit 58).
2. Staff Report, 1999 Triennial Review of Water Quality Control Plan, Sacramento River Basin and San Joaquin River Basin, approved by Central Valley Regional Water Quality Control Board on April 30, 1999 (Stockton Exhibit 59).
3. Excerpts of CalFed Grant Proposal submitted by the Department of Water Resources on April 16, 1999, including portions related to local cost share commitments (Stockton Exhibit 60). 

A copy of each of the above exhibits is attached to Stockton’s request, dated May 6, 1999, and it appears that each of these exhibits was sent to each of the parties on the Bay-Delta Hearing Service List.  Each of the three exhibits appears to be relevant to the issues addressed in Phase 5 of the hearing.  The SWRCB has received no objections to this request.  Accordingly, the request is granted.  Stockton Exhibits 58, 59, and 60 are accepted for official notice in the hearing record.

Request to File a Phase 5 Reply Brief

Westlands Water District requested an opportunity to file a reply brief for Phase 5 of the hearing, to address arguments made by the San Joaquin River Exchange Contractors, the Central Delta Water Agency, and Trinity County.  The SWRCB has received no objections to this request, and it is granted.

Schedule for Reply Briefs on Phases 2 through 7

In light of the attempt discussed above to file a reply brief as a motion to strike, and considering the importance of the issues that have been briefed to date, it appears that other parties also may wish to file reply briefs regarding all or some of the hearing Phases 2 through 7, for which closing briefs have been filed.  The SWRCB will accept reply briefs that address closing briefs filed by other parties for Phases 2, 2A, 3, 4, 5, 6, and 7 ³ on or before July 12, 1999.  A reply brief must specify the portion or portions of the other parties’ closing briefs to which the brief is responding.  A briefing schedule for Phase 2B will be set at the close of Phase 2B.

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

Sincerely,

Signed on June 21, 1999

James M. Stubchaer

Chairman and Hearing Officer

cc:   Bay-Delta Hearing Service List

Footnotes

¹  The Petitioners on the motion are Sutter Extension Water District, Richvale Irrigation District, Butte Water District, Biggs-West Gridley Water District, Western Canal Water District, Oroville-Wyandotte Irrigation District, Reclamation District 1004, M & T Chico Ranch, Inc., and San Joaquin River Exchange Contractors Water Authority.

²   The Petitioner’s motion invites the SWRCB to interpret the above-cited decision now, to settle the substantive issue raised in the motion.  To do so would be premature.  The SWRCB will decide substantive issues after the parties have had an opportunity to present evidence and legal arguments on the issues.

³   The SWRCB already has issued a decision on Phase 1 of the hearing, so no reply briefs will be accepted for that phase.

   California Environmental Protection Agency 

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