NOTICE OF PUBLIC WORKSHOP
Regarding
Subterranean Streams Flowing Through Known and Definite Channels
Commencing on April 24, 2000 at 10 a.m. and, if necessary, on April 25, 2000*
at
State Water Resources Control Board
Paul R. Bonderson Building
First Floor Hearing Room
901 P Street, Sacramento
*The SWRCB will convene on
this day only if there is insufficient time on the previous day
for all participants to
comment.
SUBJECT OF WORKSHOP
The State Water Resources Control Board (SWRCB) will hold a public workshop to gather information regarding the test for classifying subterranean streams flowing through known and definite channels (subterranean streams).
Pursuant
to the provisions of the Water Code governing water subject to appropriation,
the SWRCB has permitting authority over surface streams and groundwater
classified as subterranean streams.
(Wat. Code, § 1200.) Groundwater
classified as percolating groundwater is not subject to the Water Code
provisions concerning the appropriation of water, and consequently, the SWRCB
does not have permitting authority over percolating groundwater. Thus, when considering an appropriation of
groundwater, the SWRCB may have to evaluate the legal classification of the
groundwater and determine whether it is a subterranean stream subject to the
SWRCB’s permitting authority.
In determining the legal classification of groundwater, the SWRCB and its predecessors have relied on the California Supreme Court’s decision in Los Angeles v. Pomeroy (Pomeroy) (1899) 124 Cal. 597 [57 P. 585], which established the distinction between subterranean streams and percolating groundwater. (See, e.g., SWRCB Decisions 119 (1926), and 1639 (1999) (citing Pomeroy).) In Pomeroy, the court noted that proof of the existence of a subterranean stream is shown by evidence that the water flows through a known and defined channel. (Pomeroy, supra, 124 Cal.3d. at 633-634 [57 P. at 598].) The court stated: “ ‘Defined’ means a contracted and bounded channel, though the course of the stream may be undefined by human knowledge; and the word ‘known’ refers to knowledge of the course of the stream by reasonable inference.” (Id. at 633 [57 P. at 598].)
The SWRCB has interpreted Pomeroy and other applicable precedents to require that the following physical conditions exist for groundwater to be classified as a subterranean stream flowing through a known and definite channel:
1. A subsurface channel must be present;
2. The channel must have relatively impermeable bed and banks;
3. The course of the channel must be known or capable of being determined by reasonable inference; and
4. Groundwater must be flowing in the channel.
The SWRCB elaborated on these
conditions in Decision 1639 (1999), and has considered them in its earlier decisions. (See, e.g., SWRCB Order 95-10 (1995)
(determining that a subterranean stream exists based on evidence that
relatively impermeable rocks form the bed and banks of a known and definite channel);
SWRCB Decision 1589 (1982) (finding jurisdiction based on evidence of
subsurface flow within well-defined bed and banks); SWRCB Decision 119 (1926).)
1. What
legal test should the SWRCB apply in determining whether subsurface waters
should be classified as part of a subterranean stream or percolating
groundwater?
2. What information should the SWRCB consider when determining whether subsurface waters are part of a subterranean stream or are percolating groundwater?
3. Should the SWRCB propose rules or guidance
for the classification of which subsurface waters are subject to the water
right permitting and licensing system administered by the SWRCB? If so, should
the SWRCB propose or establish those rules or guidance through administrative
rulemaking, as a proposal for legislation, in a precedent decision, or through
other means?
PROCEDURAL MATTERS
This is an informal workshop. There will be no sworn testimony or cross-examination of participants, but the SWRCB and its staff may ask clarifying questions.
Participants are requested to provide the SWRCB with 16 copies of their written comments and supporting materials by 5:00 p.m. on Tuesday, April 18, 2000. Additional copies for participants of the workshop should be provided to the SWRCB on the day of the workshop.
Participants are encouraged to summarize their written comments in their oral presentations. To ensure that all participants have an opportunity to participate in the hearing, oral presentation will be limited to 10 minutes. Participants with similar comments are requested to make joint presentations. All participants are requested to avoid redundant testimony.
PLEASE NOTE: The purpose
of this informational workshop is to gather information for the SWRCB to
consider when evaluating a test of statewide applicability for the legal
classification of subterranean streams.
A decision determining the legal classification of groundwater in the
Pauma and Pala Basins of the San Luis Rey River is pending before the SWRCB and
already has been the subject of a SWRCB workshop. This informational workshop is not intended to reopen the hearing
record created during the SWRCB’s 1997 hearing on the Pauma and Pala Basins of
the San Luis Rey River and may not be used to augment the evidence submitted
during that hearing. Any communication
to the SWRCB that specifically addresses either the Pauma or Pala Basins must
be in writing and must be copied to the parties in the San Luis Rey matter.
Those parties are listed in the attachment to the mailing list. As stated
previously, any such submittal will not be placed into the previously closed
hearing record.
The enclosed map
(not electronically available) shows the
location of the Paul R. Bonderson Building in Sacramento. Public Parking is
available in the State Garage on 10th Street between O and P
Streets, in metered spaces on area streets,
and in the public parking garages on L Street between 10th and 11th Streets and on P Street between 11th and 12th Streets. The First Floor Hearing Room is accessible to persons with disabilities.
Questions concerning this notice may be directed to Ms. Julie Chan, Senior Engineering Geologist, at (916) 657-1992 (FAX (916) 657-1485), or to Ms. Erin Mahaney, Staff Counsel, at (916) 657-1472.
/s/
Maureen Marché
Administrative Assistant to the Board
Dated: March 15, 2000