SUPPLEMENT TO

REVISED NOTICE OF PUBLIC HEARING

for PHASE 2B

Bay-Delta Water Rights Hearing

Commencing on Wednesday, June 9, 1999 at 9:00 a.m.  This phase may be continued on June 10, 15, 22, 23, 24, 28, and 29, 1999 and additional days as necessary

at

State Water Resources Control Board

Paul R. Bonderson Building

First Floor Hearing Room

901 P Street, Sacramento

SUBJECT OF PHASE 2B

The State Water Resources Control Board (SWRCB) will convene this phase of the Bay-Delta Water Rights Hearing for the purpose of receiving evidence on four long-term petitions filed on December 10, 1998 for change of place of use and purpose of use of water, pursuant to Water Code sections 1707 and 1735 et seq.  The purpose of the four petitions is to supply water to carry out the Vernalis Adaptive Management Plan (VAMP) experiments proposed pursuant to the San Joaquin River Agreement (SJRA).  The four petitions pertain to water right licenses held by Merced Irrigation District¹, Turlock and Modesto Irrigation Districts², and Oakdale and South San Joaquin Irrigation Districts³, and also pertain to pre-1914 water rights held by the San Joaquin River Exchange Contractors Water Authority.   One of the purposes of the Bay-Delta Water Rights Hearing, listed in the May 6, 1998 hearing notice, is to receive evidence regarding petitions for changes in water rights in connection with agreements among the parties proposing allocations of responsibility for meeting the objectives in the 1995 Bay-Delta Plan.  (See Revised Notice of Public Hearing, pages 4-5.)   Consideration of these four petitions is within the above-cited purpose of the Bay-Delta Water Rights Hearing.

The SWRCB is receiving evidence in phases, with each phase focusing on a particular subject or subjects.  The subject of Phase 2 as noticed on May 6, 1998, was the responsibilities of the parties who are jointly proposing the SJRA, the Department of Water Resources (DWR), and the United States Bureau of Reclamation (USBR), to meet the flow-dependent objectives.  Phase 2 subsequently was modified by allowing all parties to withhold their adversarial evidence and legal arguments until a later phase of the hearing⁴.  In Phase 2A, the SWRCB received evidence and legal argument from parties opposed to setting responsibilities as proposed in the SJRA.  Having conducted Phases 2 and 2A of the above-entitled hearing, and having received petitions for changes from the parties who would provide water for the 12-year VAMP experiment proposed under the SJRA, the SWRCB will conduct Phase 2B in the above-entitled hearing, to receive evidence on whether the petitions for change should be approved.   The SWRCB issued a Notice of Petition for Long-Term Changes for these petitions on February 26, 1999, with a due date of September 1, 1999 for protests to be filed.  This notice waives any requirement that persons objecting to the petitions for change file a protest in order to participate as a party in proceedings regarding the petitions for change, and instead requires that any person wishing to address the question of whether the petitions should be approved must participate in Phase 2B, noticed herein.  Participation may involve, as the participant deems appropriate, the presentation of a policy statement by a non-party or the making of legal arguments and presentation of evidence by a party.  New parties will be allowed for Phase 2B, as described below under “PROCEDURAL MATTERS.”

SUBSTANCE OF THE PETITIONS FOR CHANGE

Under the petitions for long-term change, the San Joaquin River upstream of Vernalis would be added to the place of use of the affected water rights, and fish and wildlife enhancement would be added as a purpose of use.  The long-term changes would commence in April 2000 and continue for eleven years, through 2010.  On April 9, 1999, the Chief of the Division of Water Rights of the SWRCB approved temporary changes for 1999 that are similar to the changes requested under the long-term petitions for change.

The purpose of the proposed long-term changes is to allow the petitioners to transfer water to the DWR and the United States Department of the Interior (DOI) under the SJRA.  Under the SJRA, the petitioners would transfer water to facilitate the implementation of the VAMP during April and May and would make additional water transfers for environmental purposes at other times of the year.   Up to 110,000 acre-feet would be transferred during April and May each year.  Additionally, Merced Irrigation District would transfer 12,500 acre-feet of water in October to attract adult salmon returning to spawn, and Oakdale Irrigation District would transfer 15,000 acre-feet to the DOI each year in addition to any unused part of Oakdale’s 11,000 acre-foot contribution to the April 15 through May 15 pulse flow.

Under the VAMP experiment, the flow levels at Vernalis during the April 15 through May 15 pulse flow period may be lower than is required under the objectives in the 1995 Bay-Delta Plan, and the export limits at the State Water Project and Central Valley Project pumps in the southern Delta would be lower than the allowable limits under the 1995 Bay-Delta Plan.

Two environmental documents address the environmental effects of the proposed changes.  These documents are a final Environmental Impact Report/Environmental Impact Statement (EIR/EIS) prepared by the proponents of the SJRA, which was approved in early April, 1999, and a draft Environmental Impact Report (EIR) prepared by the SWRCB, which is SWRCB Exhibit 1 in the Bay-Delta Water Rights Hearing.  The EIR/EIS is not currently an exhibit in the Bay-Delta Water Rights Hearing. 

PHASE 2B HEARING ISSUES⁵

1.   Would the petitioned changes unreasonably affect any legal user of water or result in substantial injury to any legal user of water? (Wat. Code §§  1707(b)(2) and 1736.)   The petitioners initially are responsible for showing that there will not be either an unreasonable effect on any legal user of water or a substantial injury to any legal user of water.  If the petitioners make such a showing, however, and a party objects to the petitioned changes based on injury to existing water rights, the party claiming injury must present evidence demonstrating the specific injury to the existing water right that would result from approval of the changes proposed by the petition.  In addition, the party claiming injury must present evidence that describes the basis of the allegedly injured party’s claim of water right, the date the water use began, the quantity of water use during each relevant period of the year, the purpose of use, and the specific place of use.

2.   Would the petitioned changes unreasonably affect fish, wildlife, or other instream beneficial uses of water?  (Wat. Code § 1736.) The petitioners initially are responsible for showing that there will be no unreasonable effect on fish, wildlife, or other instream beneficial uses of water.  If the petitioners make such a showing, however, and a party objects to the petitioned changes based on claims of adverse impacts to the environment or to public trust values, the party must present evidence supporting these claims.

3.   Are the purposes of the petitioned changes to preserve or enhance wetlands habitat, fish and wildlife resources, or recreation in, or on, the water?  (Wat. Code § 1707(a).)  If so, will these purposes be carried out if the petitioned changes are approved by the SWRCB? 

4.   If the SWRCB approves the petitioned changes, what terms and conditions will best develop, conserve and utilize, in the public interest, the water proposed to be used as part of the change?  (Wat. Code § 1707(b).)

5.   Would the petitioned changes increase the amount of water each of the petitioners is entitled to use?  (Wat. Code § 1707(b)(1).)  The petitioners are responsible for showing that there will be no increase in the amount of water each of them are entitled to use. 

6.   Will the petitioned changes otherwise meet the requirements of Division 2 of the Water Code?  (Wat. Code § 1707(b)(3).)  Division 2 of the Water Code (§ 1000- § 5976) contains many of the statutory provisions governing water rights in California.  Section 1707, which is within Division 2, authorizes water right changes for purposes of preserving or enhancing environmental uses of water.

7.   Would efforts to facilitate the petitioned changes or mitigate the water supply effects of the petitioned changes result in changes in ground water pumping rates and quantities, implementation of water conservation measures, operation of reservoirs, and deliveries of water?  If so, what changes would occur?  The petitioners are requested to provide evidence during Phase 2B demonstrating that the water to be supplied under the petitioned changes represents a reduction in the water supply otherwise available to the petitioners and their customers, or in some other way is “real” water.

8.   What are the projected amounts of water to be transferred and times of transfer by each of the petitioners during each potential year type during the proposed long-term change?

PROCEDURAL MATTERS

This notice supplements the Revised Notice of Public Hearing issued on May 6, 1998, and that notice is applicable to Phase 2B of this hearing except to the extent modified herein.  A copy of the Revised Notice of Public Hearing can be obtained from Nick Wilcox, whose telephone number is listed below, or from the Bay-Delta internet site, at http://www.waterrights.ca.gov/baydelta/html/notices.htm.  The Revised Notice of Public Hearing includes Enclosure 1, which explains the procedural requirements that apply in the Bay-Delta Water Rights Hearing.  As modified below, Enclosure 1 applies to Phase 2B.

1.    Twenty copies of all exhibits (including written testimony) for Phase 2B must be received by the SWRCB on or before Tuesday, May 18, 1999 at 5:00 p.m., together with twenty copies of any new or revised Exhibit Identification Index.  Additionally, one copy of each exhibit and new or revised Index must be served on each party on the service list.

2.    New parties, appearing for the first time in Phase 2B, who have not previously filed a Notice of Intent to Appear in the Bay-Delta Water Rights Hearing, may file a Notice of Intent to Appear and twenty copies thereof no later than 5:00 p.m. on May 4, 1999.  Parties who previously submitted a Notice of Intent to Appear may file an original and twenty copies of amended notices, if necessary, by this deadline.  The SWRCB will promptly notify all parties of any new parties who are added to the service list as a result of filing a new Notice of Intent to Appear.  This information also will be posted on the Bay-Delta internet site.  After having received the revised service list, new parties to the proceeding must serve all other parties with their Notice of Intent to Appear.

3.    Parties intending to rely, during their cases in chief, on exhibits previously submitted to the SWRCB for the Bay-Delta Water Rights Hearing should not resubmit them to the SWRCB, but shall specifically identify such exhibits in updated exhibit lists.  Parties can view the SWRCB master exhibit list at http://www.waterrights.ca.gov/baydelta/html/exhibits.htm to confirm already submitted exhibits and assigned exhibit numbers.  Parties relying on previously submitted exhibits must, however, provide copies by May 18, 1999 of such previously submitted exhibits to any new parties added to the service list. 

4.   New or revised Exhibit Identification Indexes should be supplied to the SWRCB electronically on a disk or as an attachment to electronic mail sent to wrbaydelta@waterrights.swrcb.ca.gov, in addition to paper copies.

Questions concerning this notice may be directed to Nick Wilcox, Chief, Bay-Delta Unit, at (916) 657-0446 (FAX (916) 657-1485), or to Barbara J. Leidigh, Senior Staff Counsel, at (916) 657-2102. 

PARKING AND ACCESSIBILITY

The enclosed map shows the location of the Paul R. Bonderson Building in Sacramento. Public Parking is available in the State Garage on 10^th Street between O and P Streets, in metered spaces on area streets, and in the public parking garages on L Street between 10^th and 11^th Streets and on P Street between 11^th and 12^th Streets.  The First Floor Hearing Room is accessible to persons with disabilities.

/s/ Maureen Marché

Administrative Assistant to the Board

Dated:     April 20, 1999

Footnotes

¹  Licenses 2685, 6047, and 11395 for consumptive uses and licenses 990, 2684, and 11396 for power use, issued for Applications 1224, 10572, 16186, 1221, 1222, and 16187, respectively

²  Licenses 5417 and 11058, issued for Applications 1233 and 14127, respectively.

³  Licenses 7856 and 7860, issued for Applications 10872 and 13310, respectively.

⁴  See letter from John P. Caffrey to Tim O’Laughlin dated July 16, 1998 regarding Ruling on Motion for Changes in Proceeding

⁵   The Issues listed herein are intended to clarify the scope of Phase 2B, and do not supercede the Key Issues in the Revised Notice of Public Hearing.

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