Dante John Nomellini, Esq.             Nomellini, Grilli & McDaniel                    235 East Weber Avenue                  P.O.Box 1461                                Stockton, CA 95201-1461

Dear Mr. Nomellini:

FOUR MOTIONS YOU FILED REGARDING THE BAY-DELTA WATER RIGHTS HEARING

I have received and considered your motions dated January 25, 1999.  I have also considered the written responses to your motions filed by several of the other parties in the Bay-Delta Water Rights Hearing.  My rulings on your motions are as follows:

Motion One

In Motion One, you request that the State Water Resources Control Board (SWRCB) conduct a triennial review of the 1995 Bay-Delta Plan prior to determining the responsibility of any water right holder other than the Department of Water Resources (DWR) and the United States Bureau of Reclamation (USBR).  This motion is denied.

Some of your arguments are similar to arguments previously raised in a motion filed by JeffreyA. Meith on behalf of a number of water right holders in northern California.  The previously-raised arguments were addressed in a ruling issued by John Caffrey, who was Chairman of the SWRCB at the time, on May 26, 1998.  That ruling is unchanged.

The current proceeding is consistent with the decision of the Court of Appeal in United States v. State Water Resources Control Board (1986) 182 Cal.App.3d 82, 119-120 [227 Cal.Rptr. 161, 180-181].  In that decision, the court advised the SWRCB to establish water quality objectives that would provide reasonable protection to the beneficial uses in the Bay-Delta.  The court further advised the SWRCB to consider, when implementing the objectives, not only the extent of the responsibilities of the DWR and the USBR, but also whether other water right holders have responsibilities to help meet the objectives.  At this time, the SWRCB has established water quality objectives and is in the process of receiving evidence that will allow it to determine the responsibilities under all the water rights for which notice has been given.

The SWRCB is required, under Water Code section 13240, to periodically review the plan, but is not required to revise it at the time of review.  This is the statutory provision which applies to all of the objectives in the 1995 Bay-Delta Plan.  The process of establishing objectives for the BayDelta and implementing the objectives is necessarily an iterative one, and there may be a basis for changing the objectives in the 1995 Bay-Delta Plan after the SWRCB has determined the water right responsibilities of the parties.  For example, the SWRCB could decide as a result of the water right proceeding that the responsible parties should meet a requirement that differs from the corresponding objective.  This determination could then trigger a review of the 1995Bay-Delta Plan.  It would make no sense to interrupt the current proceeding for a periodic review of the plan at this stage, when it is not known whether or not the result of the water right proceeding will indicate a need for changes in the plan.¹  A review now would only engender delay, with no productive result.  Nor does the federal Clean Water Act require that the current proceedings be interrupted at this time and delayed for a triennial review.  The federal Clean Water Act specifies a triennial review, but the requirement of a triennial review applies only to the objectives in the 1995 Bay-Delta Plan which are also standards under the federal act.  A Clean Water Act review, like a Water Code section 13240 review, does not compel revisions.

Motion Two

In Motion Two, you request that the SWRCB establish instream flow requirements for each major Delta tributary prior to determining the responsibility of any water right holder other than the DWR and the USBR.  You assert that the effect on flows cannot be determined without setting minimum flows.  This assertion is unfounded and incorrect.  Further, granting your second motion would unnecessarily and unreasonably increase the cost of completing the hearing.  Accordingly, this motion is denied.

The current proceeding has a limited scope.  The May 6, 1998, hearing notice specifies that the Bay-Delta Water Rights Hearing is not intended to establish specific instream flow requirements upstream of the Delta.  Accordingly, the SWRCB could not now receive evidence on setting instream flow requirements without renoticing the hearing.  If the SWRCB renoticed the hearing, however, an effort to establish instream flows could make it necessary to revisit phases of the hearing that already have been completed.  This would entail an undue consumption of time and money, and would unnecessarily complicate the hearing, which is focused on implementing the objectives in the 1995 Bay-Delta Plan, which specify conditions that must be met within the boundaries of the Bay-Delta. 

Further, it is not necessary to establish instream flow requirements upstream of the Delta in order to ascertain the environmental impacts of establishing responsibilities to meet the objectives within the Delta.  The draft Environmental Impact Report (EIR) analyzes the likely effects of releasing or bypassing water in the tributaries of the Delta under the various alternatives discussed in the draft EIR.  The analyses include the likely environmental effects on the tributaries downstream of the reservoirs. 

Motion Three

In Motion Three, you request that the SWRCB appoint an independent fishery biologist or panel of biologists to present evidence in the Bay-Delta Water Rights Hearing as to public trust needs.  This motion is denied.

This motion apparently is based on the assertion that the Department of  Fish and Game and the two federal agencies with primary responsibility for fisheries, the United States Fish and Wildlife Service and the National Marine Fisheries Service, are not providing enough evidence regarding the needs of the public trust.  These agencies, however, are not the only parties in the hearing that can submit evidence regarding the needs of the public trust.  Any party can do this, and many of the parties have done so.  Central Delta Water Agency could present this type of evidence if it considered the information of importance to the SWRCB. 

The purpose of the current proceeding is to determine the responsibilities of water right holders for meeting the flow-dependent objectives in the 1995 Bay-Delta Plan, not to establish the objectives.  The SWRCB decided, when it adopted the 1995 Bay-Delta Plan, what flows and water quality must be provided for fish and wildlife in the Delta.  The 1995 Bay-Delta Plan is based on scientific information.  Additionally, the draft EIR for this proceeding analyzes the environmental effects of the alternative actions.  Finally, the SWRCB has a staff of biologists who will assist it in analyzing the hearing record.

Motion Four

In Motion Four, you request that the SWRCB establish certain rules of conduct to ensure its impartiality in the Bay-Delta Water Rights Hearing.  Specifically, you asked that the SWRCB:  (a) withdraw all staff and Board members from participating in the Governor’s Water Policy Council; (b) withdraw from the Framework Agreement; (c) prohibit staff and Board member participation in any meeting or communication with any California water right holder regarding water quality, water rights, allocation of responsibility for meeting water quality or flow requirements, export pumping, and SWP or CVP operations in the Delta or its tributaries except at publicly noticed meetings or on matters regarding procedure; (d) not claim any privilege as to disclosure of any communications involving Board members or staff with any water right holder; and (e) prohibit all staff who have participated in communications with the Governor’s WaterPolicy Council or its members from any further participation in the Bay-Delta Water Rights Hearing.

The rules you seek exceed the applicable statutory requirements, are unsupported by your pleadings, are overbroad, and are unnecessary for the purpose of maintaining impartiality.  The rules you seek to have implemented would prevent communication with water right holders and other parties on subjects other than the Bay-Delta Water Rights Hearing, including quasilegislative matters, administrative matters, and water right matters in which no adjudicative hearing has been scheduled.  Your rules would, in effect, prevent the SWRCB from performing its duties as a regulatory agency.  You also seek to have the Board lay down a legitimate defense ² to litigation you may file.  This motion is denied. 

The SWRCB’s conduct of the Bay-Delta Water Rights Hearing is governed by its regulations, set forth at California Code of Regulations, Title 23, sections 648 et seq., most ³ of Chapter 4.5 of the Administrative Procedure Act (commencing with section 11400 of the Government Code), sections 801-805 of the Evidence Code, and section 11513 of the Government Code.  The applicable provisions address procedural rights of the parties, including protections against bias, prejudice or interest by the Board members (Gov. Code, §§ 11425.10 - 11425.60) and address exparte communications to the Board members (Gov. Code, §§ 11430.10 - 11430.80).  These provisions became applicable to the adjudicative proceedings of the SWRCB on July 1, 1997.  The SWRCB is not required by law to go beyond the scope of the requirements cited above.  The practice of the SWRCB members and staff is to stay within the applicable requirements. 

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

Sincerely,

Signed on March 9, 1999

James Stubchaer

Chairman and Hearing Officer

cc:     Bay-Delta Mailing List

^Footnotes

¹  Despite your assertion that certain changes in the 1995 Bay-Delta Plan will inevitably be made in response to some of the evidence already received in the current proceeding, it is the responsibility of the SWRCB to decide whether the requirements to be met by the water right holders will differ from the plan.  The SWRCB has not made a decision on these issues

²  The defense you seek to preclude is that, where applicable, the SWRCB may assert a claim of privilege.

³  The provisions of Article 8 (language assistance), 13 (emergency decision) and 14 (declaratory decision) of the Administrative Procedure Act are excepted from applicability in water right hearings.

  California Environmental Protection Agency