STATE WATER RESOURCES CONTROL BOARD

BOARD MEETING SESSION – DIVISION OF WATER RIGHTS

MARCH 15, 2000

Item: 9

Subject: Order Denying Petitions for Reconsideration and Amending

Decision 1641

Discussion: The SWRCB adopted Decision 1641 (D-1641) on December 29, 1999 after completing seven phases of a projected eight-phase adjudicative hearing to implement the 1995 Bay-Delta Water Quality Control Plan (1995 Bay-Delta Plan). In D-1641, the SWRCB implemented flow objectives and flow-dependent water quality objectives through changes in water right permits and licenses held by parties who divert water from the watershed of the Bay-Delta. The SWRCB also conditionally approved change petitions filed by the Department of Water Resources (DWR) and the U.S. Bureau of Reclamation (USBR). The SWRCB approved several proposals for establishing the responsibilities of specified parties with respect to meeting the objectives in the 1995 Bay-Delta Plan, including the approval of a long-term change in the rights of certain water right holders on tributaries of the San Joaquin River. Lastly, the SWRCB modified the responsibilities of the DWR and the USBR to protect Suisun Marsh beneficial uses.

The SWRCB received 21 timely petitions for reconsideration of D-1641. The SWRCB’s regulation lists the following causes upon which a petition for reconsideration may be filed: (a) irregularity in the proceedings, or any ruling, or abuse of discretion, by which the person was prevented from having a fair hearing; (b) the decision or order is not supported by substantial evidence; (c) there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced; (d) error in law. The SWRCB may order reconsideration on all or a part of a decision adopted by the SWRCB upon petition by any interested person. The causes for reconsideration set forth in the petitions primarily fall within (a) and (d).

This item is a proposed order in response to the petitions for reconsideration. Adoption of the proposed order by the SWRCB would deny reconsideration of D-1641, clarify findings made in D-1641, and amend several conditions in the order in D-1641.

In the proposed order, staff proposes five principal changes in the findings of D-1641 in response to issues raised in the petitions. The first change amends language regarding the effect of long-term water right changes on South Delta Water Agency (SDWA) relative to its rights under the Delta Protection Act. The second change is to strike language regarding the rights of SDWA members to Sacramento River water. The third change amends the discussion of Water Code

section 1702 as requested by the State Water Contractors. The fourth change amends the findings in the discussion regarding the San Luis Drain to reflect a recent appellate court opinion on the responsibility of the USBR to provide drainage service to the west side of the San Joaquin Valley. The fifth change strikes language regarding the interpretation of Water Code section 11462.

If the SWRCB adopts the proposed order, the conditions in the order in D-1641 relating to mitigation for changes in the USBR’s place of use will be amended to clarify that the amount of mitigation required by D-1641 does not exceed a

one-to-one compensation for acreage converted to agricultural use from native habitat and that the USBR can obtain reductions in the mitigation required under D-1641 by proving that less encroached land was converted due to Central Valley Project deliveries than are specified in D-1641. The order will be amended to ensure that the USBR will not be mandated to use water under the New Melones Reservoir storage permits to meet the new conditions if it uses other sources of water or other means to meet the conditions. The order will also be amended to clarify that Vernalis water quality objectives are to be met at all times and that a deadline has been set for further action in the event that the USBR does not develop a plan to consistently achieve the objective. The remaining two proposed changes in D-1641 relate to protections for the Contra Costa Water District from the joint point of diversion. The first change requires the DWR and the USBR to consult with CCWD to develop a plan to protect CCWD from increased salinity at its diversion intakes. The second corrects the month when export pumping via the joint points of diversion is restricted for the benefit of CCWD.

Finally, if the proposed order is adopted, two clerical errors in D-1641 will be corrected to incorporate changes to D-1641 that were made during the December 29, 1999, SWRCB meeting but inadvertently overlooked in the final decision.

Fiscal Impact: None. This activity is budgeted within existing resources and no additional fiscal demands will occur as a result of approving item.

STAFF RECOMMENDATION: staff recommends that the SWRCB adopt the proposed order.

Proposed Order