Understanding evidentiary hearings in water rights cases
The term “evidentiary hearing” means different things in different legal venues. An evidentiary hearing in a criminal court is not the same as an evidentiary water rights hearing before the quasi-judicial body of the State Water Resources Control Board (the Board).
An evidentiary hearing in a water rights case serves the purpose of establishing a record of information. In that sense, the evidentiary hearing is like a trial. The Board uses the record established in the hearing to make a decision about water rights. The Board calls this “adopting” an order or decision.
Before 2019, a member of the Board served as the hearing officer and presided over the hearing. He or she was assisted by staff from the Board’s Division of Water Rights and one or more attorneys from the Board’s Office of Chief Counsel. In 2019, the Board changed its procedure regarding hearings. Now, the Board’s Administrative Hearings Office (AHO) conducts water rights hearings. An AHO attorney presides over each hearing as the hearing officer. AHO staff assists with the hearing.
The hearing process involves a number of steps. These occur in a specific order.
1. The Board prepares and issues a hearing notice before the hearing takes place.
Optional:
- a field tour of the site to be affected
- one or more pre-hearing conferences.
2. Prior to the hearing, the parties present “case-in-chief” testimony to the Board. A case-in-chief is a party’s primary factual evidence.
Initially, the case-in-chief consists of written testimony supported by “exhibits,” defined as documents cited in the written testimony. Generally, witnesses are experts in the subject matter they discuss. Non-experts can also provide testimony.
3. During the hearing, each party presents its case-in-chief. The case-in-chief includes testimony from witnesses about relevant facts. The case-in-chief may include the opinions of expert witnesses.
- During the presentation of a case-in-chief, each witness summarizes his or her written testimony. Any other party or parties to the proceeding can engage in cross-examination (cross) of each witness. This process involves questioning witnesses about their written or oral testimony or relevant facts related to their testimony.
- After cross-examination, the party on whose behalf the witness is testifying can conduct redirect. This means the witness is questioned again by their own attorney. After redirect, attorneys have the right to “re-cross.” This means they can ask questions about answers that the witness gave on redirect.
3. After the proponent of a water rights application or petition has presented its case-in-chief, each of the remaining parties present its cases-in-chief, in turn. The parties’ witnesses present summaries of their written testimony and stand for cross-examination.
4. On the completion of cases-in-chief, the hearing moves on to a “rebuttal” phase. In this phase, each party may present written testimony to refute specific testimony, including exhibits, offered in cases-in-chief. The process of summarizing written testimony and cross examination is similar to those during cases-in-chief. Yet the scope of allowed cross-examination is narrower. It is limited to questions specific to the rebuttal testimony.
4. In some cases, a “sur-rebuttal” phase may follow the rebuttal portion of the hearing. This phase is limited to rebuttal of specific testimony presented in the rebuttal phase of the hearing.
5. Once the presentation of evidence is complete, each party has the opportunity to present a written closing brief. The closing brief summarizes points of the testimony and presents arguments about it. The closing brief also presents recommended actions to the Board. In some cases, the Board allows parties to submit reply briefs that answer the closing briefs of other parties.
5. Once all briefs are filed, the AHO reviews the evidence and the legal arguments of all parties.
6. The AHO prepares a draft decision and permit(s) or an order relating to the matter that it heard.
7. The Board reviews the recommendation of the AHO and determines whether it needs to revise the draft prior to a Board meeting.
8. When it is ready, the Board schedules the release of a draft decision or order for a Board meeting. This is referred to as “agendizing” it. The Board also allows oral or written comment on the draft.
9. The Board holds one or more meetings to review the matter.
10. The Board adopts the decision or order at a Board meeting.
CSPA frequently appears as a party in evidentiary water rights hearings to protest the appropriation of water or the conditions for such appropriation. In this respect, CSPA typically works hand-in-hand with other nonprofits.
In hearings as in other work, CSPA makes the case that rivers and estuaries should remain full and viable habitats for fish and wildlife, as well as for human uses like recreation. Your support of CSPA ensures that CSPA is a strong voice at evidentiary hearings. CSPA defends the public’s resources and the people who do not have the ability to defend those resources themselves.