Participants, Bay-Delta Water Rights Hearing

ISSUES REGARDING THE BAY-DELTA WATER RIGHTS HEARING

This letter responds to several recent letters from representatives of the parties in the hearing. 

1.   Procedures Regarding Hydrologic Modeling Memoranda

The State Water Resources Control Board (SWRCB) has received two letters from parties in the Bay-Delta Water Rights Hearing regarding a February 23, 1999, letter from Mr. Dave Schuster of Surface Water Resources, Inc.  Mr. Schuster’s letter transmitted copies of two memoranda.  Mr. Schuster had previously sent copies of the two memoranda to Mr. Tom Howard, at the SWRCB, and the purpose of Mr. Schuster’s February 23, 1999, letter was to provide copies of the memoranda to the Bay-Delta parties.

Mr. Dante Nomellini and Mr. Tim O’Laughlin each wrote letters to the SWRCB regarding Mr.Schuster’s letter and memoranda, expressing concerns that the original transmissions of the two memoranda violated the SWRCB’s rule against ex parte communications during the BayDelta Water Rights Hearing.  The prohibition of ex parte communications is set forth at Government Code section 11430.10.  With some exceptions, it prohibits a direct or indirect communication regarding any issue in the proceeding, to the presiding officer from a representative of a party or an interested person outside the agency, without notice and opportunity for all parties to participate in the communication.   Under Government Code section 11430.50, the communication must be made a part of the record in the proceeding, and the parties must be notified that it is in the record.  If a party requests an opportunity to address the communication within 10 days after receiving notice of the communication, the party shall be allowed to comment on the communication, and the hearing officer has discretion to allow the parties to present evidence concerning the subject of the communication.

In this case, the communications in question were sent to Mr. Howard.  Mr. Howard did not transmit the communications to the Board members when he received them.  Because the information in the communications eventually could indirectly reach the Board members, I asked Mr. Schuster to provide copies of the memoranda to all the parties.  The effect of Mr. Schuster’s sending the memoranda to the parties is to satisfy the statutory requirement for notice and opportunity for the parties to participate in any such communication.  The communications are now in the general record of the SWRCB for the Bay-Delta Water Rights Hearing, and are available to the parties, the Board members, and the Board’s staff.  Although no party requested an opportunity to address the communications within 10 days after receipt of notice of the communications, the parties may nevertheless have the opportunity to address the memoranda in a future phase of the hearing if they are relevant in that phase and the SWRCB’s procedures are followed for submission of testimony and exhibits.  

The specific questions raised by Mr. Nomellini and Mr. O’Laughlin regarding the extent of review of the memoranda by staff or Board members do not require a response, because the procedural requirements for submitting a communication have been met.  Nevertheless, the answers to the questions are that some members of the SWRCB’s staff have read the memoranda but have not conducted a technical review of the memoranda, and the members of the SWRCB did not have the memoranda available to them until they had been provided to the parties. 

2.     Redactions of October 20, 1998 Testimony

By letter dated March 19, 1999, Ms. Amelia T. Minaberrigarai, for Westlands Water District and San Luis & Delta-Mendota Water Authority, pointed out that the ruling on redaction of parts of Trinity County’s testimony, dated March 9, 1999, did not redact the October 20, 1998, crossexamination by Thomas Birmingham of Trinity County’s witnesses. 

The March 9, 1999, ruling was issued in response to a letter submitted to the SWRCB by Ms.Minaberrigarai.  Ms. Minaberrigarai stated in the letter that Westlands and the Authority had agreed, in return for other redactions, to redact Mr. Birmingham’s entire cross-examination.  Ms.Minaberrigarai specified the lines and pages of the hearing record redacted, except for the lines and pages that should have been redacted from the October 20, 1998 transcript.  The redactions specified in Ms. Minaberrigarai’s letter of March 19, 1999, starting at transcript page4984, line 9 and continuing through transcript page 5060, line 23, are consistent with the March 9, 1999 ruling.  Accordingly, the ruling by Mr. Stubchaer, the hearing officer, is that these redactions are approved, and shall be treated the same as the redactions specified in the March9,1999, ruling. 

3.     CALFED Action on Vernalis Adaptive Management Plan in 1999

The SWRCB has received the attached letter dated March 15, 1999, from Lester Snow, Executive Director of CALFED, to Assemblyman Michael Machado, regarding CALFED’s actions on the Vernalis Adaptive Management Plan.  The action of CALFED is separate from any action of the SWRCB regarding the Vernalis Adaptive Management Plan, and CALFED’s action is not to be considered indicative of any action that the SWRCB may take. 

If you have any 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 April 15, 1999

Walt Pettit

Executive Director

cc:     Bay-Delta Mailing List

  California Environmental Protection Agency