To Parties, Bay-Delta Water Rights Hearing

RULING ON MOTION TO STRIKE NEW EVIDENCE PRESENTED IN CLOSING BRIEFS FOR PHASE 2A AND PHASE 5

This letter rules on a motion filed on behalf of the San Joaquin River Group Authority (SJRGA) to strike new evidence presented in the closing briefs of other parties for Phases 2A and 5 of the Bay-Delta Water Rights Hearing.  SJRGA alleges that some of the parties, when they filed their briefs, attached documents or included information constituting new evidence that was not presented to the SWRCB during the hearing. 

SJRGA seeks to strike provisions in four closing briefs filed for Phases 2A and 5 in the Motion to Strike.  Regarding the Phase 2A closing briefs, SJRGA requests that portions be stricken from the closing briefs of Save San Francisco Bay Association (Association), Stanislaus County, and Stockton East Water District (SEWD), and that attachments to the briefs be stricken.  SJRGA also requests that the SWRCB strike a paragraph and an attachment contained in SEWD’s Phase5 closing brief.

The provisions sought to be struck from the Phase 2A closing brief of Association are Section I of the brief, which addresses an alleged veto power held by water users under the San Joaquin River Agreement, and two attachments to the brief, consisting of a Fresno Bee article and a brief filed in federal court.  The Association does not seek to have the attachments to its brief officially noticed or otherwise included in the evidentiary record for the Bay-Delta Water Rights Hearing.  Except for the first two paragraphs and the final paragraph, Section I of Association’s brief discusses the attachments.  The attachments are not evidence in the hearing, and the SWRCB will not treat these attachments as evidence.  Argument based on the factual content of the attachments, therefore, goes beyond the hearing record.  Accordingly, the SWRCB will disregard paragraphs 3, 4, 5, and 6 in Section I of Association’s brief.

The provisions sought to be struck from the Phase 2A closing brief of Stanislaus County are contained in section D of that brief.  These provisions state the legal bases for the position that Stanislaus County takes regarding the San Joaquin River Agreement.  None of the provisions in section D constitute new evidence.  Section D cites a water right application and a water rightdecision that are in the hearing record, and cites various statutory provisions which Stanislaus County argues should be applied in making a decision regarding the San Joaquin River Agreement.  Accordingly, the Motion to Strike is denied as to the Stanislaus County closing brief.

The provisions sought to be struck from the Phase 2A closing brief of SEWD include a statement in Section VII, page 9, and Exhibit A, attached to the brief.  I granted official notice of the same document which is Exhibit A, in a ruling dated June 21, 1999, in response to a request by the City of Stockton.  Since Exhibit A is a part of the hearing record, the Motion to Strike is denied as to the SEWD Phase 2A closing brief.

The provisions sought to be struck from the Phase 5 closing brief of SEWD include Exhibit A, attached to the brief, and the first full paragraph on page 14, which refers to Exhibit A.  ExhibitA is an excerpt from SEWD Exhibit 43, which was accepted in evidence during Phase2B of the Bay-Delta Water Rights Hearing on June 23, 1999.  Since Exhibit A is in the hearing record, the Motion to Strike is denied as to the SEWD Phase 5 closing brief.

If you have questions regarding this matter, you may call Nick Wilcox, Chief of the Bay-Delta Unit, at (916) 657-0446, or Barbara J. Leidigh, Senior Staff Counsel, at (916) 657-2102.

Sincerely,

Signed on July 8, 1999

James M. Stubchaer

Chairman and Hearing Officer

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