FREQUENTLY ASKED QUESTIONS: THE HEARING PROCESS
This website provides generally information describing the nature, conduct and immediate results of a water right hearing. [NOTE: The general information provided is not intended to either alter or supersede State Water Board regulations or policies regarding the conduct of such hearings.]
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What Is A Water Right Hearing?
A water right hearing is a quasi-judicial adjudicative proceeding that has, as an objective, the development of an adequate record upon which the State Water Resources Control Board (State Water Board) can rely to make good decisions. (Govt. Code Sec. 11405.20)
A water right hearing is conducted as a formal proceeding to ensure that due process standards are afforded to the participating parties.
In general, water right hearings are conducted in a manner deemed suitable to the particular case. The State Water Board, assisted by personnel from the Division of Water Rights and Office of Chief Counsel, holds hearings to secure relevant information promptly and without unnecessary delay and expense to participating parties or the State Water Board. Subsequently, the record developed at the hearing is used to formulate a decision that affects the rights of the participants.
What Types Of Water Right Hearings Are Conducted?
Water right hearings are conducted in accordance with the State Water Code (Statutory Water Rights Laws (effective January 1, 2016: California Water Code (particularly Division 2) and other California Code sections relevant to water rights) and the California Code of Regulations pertaining to water rights laws and proceedings (Title 23. Waters (Division 3) - Portions Pertaining to Water Rights - effective April 1, 2016).
As detailed by this Hearings Matrix, water right hearings conducted by the State Water Board fall under three basic categories:
- Evidentiary Hearings
- Application and Petitions
- Public Trust/Public Interest
- Fully appropriated Streams
What Are The Roles & Authority Of The State Water Board & State Water Board Staff?
Water right hearings are conducted with a (1) the Hearing Officer or Hearing Panel, and (2) State Water Board staff.
- Hearing Officer: The Hearing Officer assigned to hear a case is a Member of the State Water Board.
Role: The Hearing Officer (1) preside over the hearing (neutral judge), (2) provide policy direction to staff during preparation of Decision/Order, and (3) comment or recommend actions to the other Board Members during deliberation.
Authority: The Hearing Officer (1) decides all procedural matters prior to and during the hearing, (2) rules on motions prior to and during the hearing, (3) rules on objections during the hearing, and (4) directs staff regarding preparation of Decision/Orders.
The Hearing Officer will act much like a judge to ensure that the hearing is conducted in an orderly fashion. More than one State Water Board Member may sit in the hearing. Should this occur, one State Water Board Member will take the lead as the Hearing Officer and will be with the case until it ends.
- State Water Board Staff Hearing Team: An advisory Hearing Team is drawn from the Division of Water Rights and Office of Chief Counsel to assist the Hearing Officer. The Hearing Team may include a staff engineer, an environmental specialist, a geologist and a staff attorney.
Role: The Hearing Team participates in the development of the hearing record and subsequently writes an analysis of the hearing record. Under the guidance of the Hearing Officer, the Hearing Team prepares the draft Decisions/Orders to be considered by the State Water Board.
Authority: The advisory Hearing Team has no authority.
Who Are Parties To A Hearing?
In accordance with the definition set forth in Section 648.1 of Title 23, Cal. Code of Rags., Parties include:
- Persons against whom enforcement action is taken
- Persons designated as parties in accordance with procedures specified in the hearing notice.
- Persons presenting policy statements are not parties.
- Only the Hearing Officer may grant "interested party" status to someone other than those set forth in Section 648.1 of Title 23, Cal. Code of Rags.
What Are The Limits To Participation Of Parties?
Party participation limits are:
- Set forth in the hearing notice.
- Imposed by the Hearing Officer at the hearing
- Self-imposed by a party (i.e., participating by cross-examination or rebuttal only).
What Is Due Process?
Due Process includes:
- Reasonable Notice being provided.
- An opportunity to be heard.
- Preparation of Decisions/Orders is based only on the administrative hearing record developed during the hearing.
- Improper conduct by any hearing participant is not permitted.
- To ensure that a fair and impartial hearing is conducted, the Hearing Officer and Hearing Team are subject to disqualification for bias, prejudice, or interest in the proceeding.
What Is The General Process Of A Water Right Hearing?
This flowchart shows the Division of Water Rights' general process for a Water Right Hearing.
What Is An NOI And Why Is It Required?
A Notice of Intent to Appear (NOI) informs that State Water Board that you and/or your representative plan to attend the hearing in person on its scheduled date(s). The NOI also informs the Board of your intended level of participation in the hearing. Your level of participation could range from presenting a non-evidentiary policy statement only to presenting a case-in-chief, calling witnesses, and cross-examining the witnesses of other parties. If you intend to present witness testimony, you must list on your NOI your witness(es)’s name(s), whether or not each is an expert witness, the subject of each witness’s testimony, and the estimated length of time needed by each witness to summarize their written testimony. (Written witness testimony is submitted in advance of the hearing by the exhibit deadline.)
Importantly, your NOI must also contain your or your representative’s contact information. This informs the Board of how you prefer to be contacted regarding the proceeding. Within one week after the NOI deadline, the State Water Board will mail out a service list that contains the contact information for all of the hearing participants and a copy of each of their NOIs. The service list is provided to facilitate communication regarding the hearing, which will include the service of each party’s exhibits upon each other party by the exhibit deadline and any procedural updates from the State Water Board. If you wish to decline electronic service of hearing-related communications, you may indicate this preference by checking the box provided on the NOI form.
If you wish to participate in a water rights hearing as party must submit a completed NOI form, either electronic copy or paper copy with original signature, to the State Water Board to be received no later than the deadline prescribed in the Hearing Notice. If you submit you NOI electronically (e.g., via fax or email), it must be followed-up by a mailed or delivered paper copy with an original signature.
For a blank NOI form, click here.
For an example of a completed NOI form, click here.
For more information regarding Notices of Intent to Appear, see section 4 of the Information Concerning Appearance at Water Right Hearings, which accompanies the Hearing Notice.
What Are Exhibits? What Are The Exhibit Submittal Requirements?
“Exhibits” include the written testimony of witnesses, the qualifications of any expert witnesses, and all other material that you intend to serve as evidence during the hearing, such as photographs, technical reports, or utility bills, as applicable. You must designate all of your exhibits with an exhibit number; typically, this is an abbreviated form of the party name followed by a hyphen and a number (e.g., WR-1 for the Division of Water Rights Prosecution Team’s first exhibit). Generally speaking, any exhibits you submit other than witness testimony and qualifications should be referenced within the written testimony of at least one of your witnesses.
Your exhibits, an exhibit identification index listing the exhibit number (e.g., WR-1) and a description of the exhibit, and a statement of service indicating the manner of service of your exhibits and index upon all of the parties on the service list must be submitted to the State Water Board and the hearing service list by the exhibit deadline designated in the Hearing Notice. You must submit one electronic copy and three paper copies of both your exhibits and your exhibit identification index to the State Water Board. Consult the service list to determine whether the other hearing parties will accept electronic service regarding the proceeding.
For more information regarding exhibits, see section 5 of the Information Concerning Appearance at Water Right Hearings, which accompanies the Notice of Public Hearing.
Relevant Hearing Program Forms
What Are The Rules For Conducting A Hearing?
Rule for the conduct of hearings include the following:
- Hearings are conducted pursuant to rules set forth in Administrative Procedures Act (Government Code) and California Code of Regulations, title 23.(SEE: Laws and Procedures website)
- The Notice of Hearing drives the hearing and specifies the scope of hearing, deadlines application rules, etc. All evidence introduced at a hearing must address the key issues identified in the notice. (SEE: Hearing & Workshop Notices website)
- The Hearing Officer (Board Member) is in charge and is assisted during the hearing by State Water Board staff Hearing Team.
- Written testimony and exhibits must be submitted in advance, in accordance with deadlines set forth in the Notice of Hearing.
- The general Order of Proceeding is a follows:
- Opening Statements
- Direct Testimony
- Closing Statements
- Decisions must be based only on evidence within the hearing record and it is unfair for Board Members to rely on information outside the record.
Ex-Parte Communications: To Whom Can You Talk, When And About What?
The Ex-parte rule is:
- Parties to a hearing cannot talk, off the record, to Board Members and the Hearing Team about the substance of the hearing (except non-controversial procedural issues) without notice to all other parties and the opportunity for the parties to be present. (Caveat: sometimes what appears to be procedural is really substance.)
- Generally, the Hearing Notice provides the trigger for application of the Ex-parte rule.
- Violation of the Ex-parte rule can invalidate the State Water Board’s Decision/Order.
- Board Members must disclose Ex-parte communications.
A much more detailed question and answer document on ex-parte communications is available HERE: http://www.waterboards.ca.gov/laws_regulations/docs/exparte.pdf
What Is The Purpose And Importance Of A Hearing Notice?
The purpose of a Hearing Notice is to inform parties and others interested in the subject of the hearing of:
- Date, time and place of the hearing.
- Subject of the hearing
- Issues that all testimony and exhibits must address.
- Procedural rules that apply to the hearing.
- Contacts for more information
The hearing notice is important because it ensure Due Process. If issues are not properly noticed for the hearing (directly or indirectly), then the State Water Board cannot make findings and conclusions related to that noticed issue.
What Is An Administrative Record?
The Administrative Hearing Record is:
- The complete record of the hearing that includes:
- Transcripts of the hearing (records everything said "on the record" at the hearing).
- Exhibits admitted into evidence
- The Administrative Records is used:
- To provide the basis for the State Water Board's Decision/Order
- To provide the basis for judicial review
- The Administrative Record is important because:
- The State Water Board is limited to the record in making its Decision/Order (cannot consider things that are not in the record)
What Is Evidence?
- Testimony, writings, material objects or other things offered to prove the existence or non-existence of a fact.
- Documents must be submitted into evidence by the Hearing Officer, otherwise they are just an exhibit and they cannot be relied on by the Board.
- Legal arguments and policy statements are not evidence.
- Allegations are not evidence... they must be proved.
- Labels are not conclusive.
Evidence admissibility is:
- Determined by the Hearing Officer
- Generally not an issue: "Any relevant evidence shall be admitted if it is the sort of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs..." (Gov. Code sec. 11513 (c.)
What Is "Hearsay" Evidence?
HEARSAY EVIDENCE is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove that truth of the matter stated. (Evidence Code Section 1200)
What Is An Expert Witness?
An expert witness:
- Can offer an opinion that goes beyond common experience
- Must have special knowledge, skill, experience, training or education.
- Expert opinion would help the State Water Board understand the evidence or determine a fact at issue.
- Cannot testify to legal conclusions.
- You do not need to be an expert to testify to facts (vs. opinion)
What Is Burden Of Proof?
Burden of Proof is:
- An obligation of a party to a hearing to introduce evidence that affirmatively proves a fact or facts in dispute on an issue noticed for hearing.
What Is Burden Of Proof Going Forward?
Burden of Proof going forward is:
- An obligation of a party to a hearing to introduce evidence or cross-examine witnesses to elicit testimony that refutes or explains the evidence offered by the party with the burden of proof.
What Is The Result Of A Hearing?
A hearing will result in:
- A Decision/Order adopted by the State Water Board.
- The Decision/Order will be limited to the administrative hearing record and will be based on substantial evidence.
- The Decision/Oder must contain findings based on factual and legal basis.
- Adopted State Water Board Decisions/Orders are posted at the Board’s Water Right Decisions webpage and at the Board’s Water Right Orders webpage.
Can A Board Decision Or Order Be Challenged?
Any person wishing to submit a petition for reconsideration of a final Decision or Order may do so within 30 days of the adoption of the order. As described in California Code of Regulations, title 23, section 768, any interested person may file a petition for reconsideration upon any of the following causes:
- Irregularity in the proceedings, or any ruling, or abuse of discretion, by which the person was prevented from having a fair hearing;
- The decision or order is not supported by substantial evidence;
- There is relevant evidence which, in the exercise of reasonable diligence, could not have been produced;
- Error in law.
If A Petition For Reconsideration Is Filed, What Actions May The Board Take?
As described in California Code of Regulations, title 23, section 770:
The board may:
- Refuse to reconsider the decision or order if the petition fails to raise substantial issues related to the causes for reconsideration set out in Section 768; or
- After review of the records, including any hearing transcript and any material submitted in support of the petition:
- Deny the petition upon a finding that the decision or order was appropriate and proper; or
- Set aside or modify the decision or order; or
- Take other appropriate action.
Before taking final action, the board may, in its discretion, hold a hearing for the purpose of oral argument or receipt of additional evidence or both.
Where Can I Find Additional Information Regarding How I Can Participate In A Water Rights Hearing?
For additional information regarding how to participate in a water rights hearing, see the Information Concerning Appearance at Water Right Hearings, which accompanies the Notice of Public Hearing.