WORKSHOP SESSION--OFFICE OF CHIEF COUNSEL

JANUARY 7, 1998

ITEM: 12

SUBJECT: CONSIDERATION OF ADOPTION OF INTERIM REGULATIONS, AMENDING PROVISIONS OF DIVISION 3, TITLE 23, CALIFORNIA CODE OF REGULATIONS, CHAPTERS 1 AND 1.5 TO CONFORM THE STATE WATER RESOURCES CONTROL BOARD'S REGULATIONS CONCERNING ADJUDICATIVE PROCEEDINGS TO THE ADMINISTRATIVE PROCEDURE ACT, AND ADOPTION OF NONSUBSTANTIVE CHANGES

DISCUSSION: Amendments to the Administrative Procedure Act (APA) became effective on July 1, 1997, affecting the conduct of adjudicative proceedings by administrative agencies. These amendments add a new chapter to the APA governing administrative adjudication by state agencies, including the State Water Resources Control Board and the Regional Water Quality Control Boards. The new legislation requires that agencies modify their regulations relating to adjudicative proceedings as necessary to conform to the APA requirements.

Government Code section 11400.20 provides that agencies may utilize a streamlined procedure to adopt the required amendments on an interim basis. Interim regulations must be filed with the Office of Administrative Law, but are not subject to, among others, the standard 45-day notice and comment, fiscal impact analysis, or review procedures. Interim regulations will remain in effect until December 31, 1998, and agencies are required to replace the interim regulations with permanent regulations, to be adopted pursuant to the full, normal rulemaking process.

Additionally, minor nonsubstantive changes are proposed to the title of division 3 and to eliminate duplicative regulations.

POLICY ISSUE: Should the Board adopt the interim regulations governing adjudicative proceedings and the nonsubstantive changes?

FISCAL IMPACT: There will be no fiscal impact.

REGIONAL BOARD IMPACT: Yes. All nine Regional Water Quality Control Boards.

STAFF RECOMMENDATION: Adopt the proposed Resolution approving the amendments and authorizing the Executive Director to transmit them to the Office of Administrative Law.

DRAFT 12/22/97

WHEREAS:

1. The Administrative Procedure Act (APA), chapter 4.5 was amended effective July 1, 1997. As amended, the APA contains specified provisions applicable to this Board. Government Code section 11400.20 authorizes agencies that conduct adjudicative proceedings to amend existing regulations to conform to the requirements of the APA.

2. Government Code section 11400.20 provides that such amendments may be adopted on an interim basis by means of an expedited procedure.

3. The proposed amendments modifying regulations currently contained in division 3, title 23, California Code of Regulations, chapters 1 and 1.5, fulfill the requirements that this agency's adjudicative proceeding regulations conform to the requirements of the APA.

4. The adoption of the proposed interim regulations is in conformity with the procedure provided by section 11400.20.

5. The proposed nonsubstantive changes are without regulatory effect within the meaning of title 1, California Code of Regulations, chapter 1, section 100(a)(1)and (4).

THEREFORE BE IT RESOLVED THAT:

The proposed amendments to title 23, California Code of Regulations, sections 640, 648, 648.1, 648.2, 648.3, 648.4, 648.5, 648.6, 648.7, 648.8, 649.6, 760, 761, 762, and 763. 764.12, and 764.13 are adopted, and the Executive Director is authorized to transmit the amendments to the Office of Administrative Law for filing with the Secretary of State.

The undersigned, Administrative Assistant to the Board, does hereby certify that the foregoing is a full, true, and correct copy of a resolution duly and regularly adopted at a meeting of the State Water Resources Control Board held on January 22, 1998.

______________________________

Maureen Marché

Administrative Assistant to the Board

Repeal present section 640:

§ 640. Board.

(a) "Board" or "state board" when used in this chapter, unless otherwise designated, means the State Water Resources Control Board.

(b) "Regional Board," when used in this chapter, means any California Regional Water Quality Control Board.

Adopt new section 640 as follows:

§ 640. Definitions.

(a) "Board" when used in this chapter and chapter 1.5, unless otherwise designated, means either the State Water Resources Control Board or any California Regional Water Quality Control Board.

(b) "State Board" when used in this chapter and chapter 1.5 means the State Water Resources Control Board.

(c) "Regional Board" when used in this division means any California Regional Water Quality Control Board.

Repeal present sections 648-648.8:

§ 648. Definitions; Disclaimer.

(a) For purposes of this article, "adjudicatory proceedings" include any hearings designed to determine the rights and duties of specific persons as they relate to a particular standard or rule and including, but not limited to, hearings involving NPDES permits, cease and desist orders, referrals to the Attorney General, and water rights applications.

(b) To the extent that other sections of this chapter establish more detailed and specific procedures governing adjudicatory proceedings, those sections shall govern.

§ 648.1. Notice.

Notice of adjudicatory proceedings shall, at a minimum, comply with all applicable requirements of Section 647.2. Notice requirements contained elsewhere in this chapter shall apply to the extent they require greater notice. The notice shall include staff recommendations, if any, regarding the proceedings.

§ 648.2. Prepared Evidence.

(a) It shall be the policy of the State and Regional Boards that the introduction of surprise testimony and exhibits at hearings be discouraged. Therefore, the requirements of this section shall be strictly enforced.

(b) The notice of hearing may require the submission of written testimony at a time prior to the hearing. If any such requirement is not complied with, the Board may refuse to admit such written testimony into evidence, and shall refuse to do so where there is a showing of prejudice to any person or to the Board. Where a person demonstrates that compliance would create severe hardship, the Board may modify this rule.

§ 648.3. Conduct of Hearing.

(a) Adjudicatory proceedings shall be conducted in such a manner as the Board deems most suitable to the particular case with a view toward securing relevant information expeditiously without unnecessary delay and expense to the parties and to the Board. Adjudicatory proceedings shall be conducted in the following order; provided, however, that the Chairperson, presiding member, or hearing officer may modify the order for good cause:

(1) An opening statement by the Chairperson, presiding member, or hearing officer, summarizing the subject matter and purpose of the hearing;

(2) Identification of all persons wishing to participate in the hearing;

(3) Presentation of evidence by staff of the Regional or State Board;

(4) Cross-examination of staff;

(5) Presentation of evidence by the persons directly affected;

(6) Cross-examination of persons directly affected;

(7) Presentation of evidence by other persons;

(8) Cross-examination of such other persons.

(b) Questions from Board members, staff or Board counsel to any person or witness, and procedural motions by any person shall be in order at any time. Redirect and recross-examination may be permitted.

(c) Upon conclusion of the presentation of evidence, all persons appearing at the hearing will be allowed to present a closing statement.

§ 648.4. Rules of Evidence.

The following rules of evidence shall apply to adjudicatory proceedings and in such other proceedings as a Board may determine by order.

(a) The proceedings will not be conducted according to technical rules relating to evidence and witnesses. Any relevant non-repetitive evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Irrelevant and unduly repetitious evidence shall be excluded.

(b) Oral or written testimony offered by any person shall be under oath or affirmation. In proceedings where a hearing is not required, oral comments may be considered.

(c) Each person shall have the right to call and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses on any matters relevant to the issues in the proceeding, and to rebut evidence against such person.

(d) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. 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 the truth of the matter stated. The Board may establish such additional rules as necessary for the orderly conduct of the proceeding.

§ 648.5. Hearing Officers; Executive Sessions.

Pursuant to Government Code Section 11126, the Board may meet in closed session to deliberate on a decision to be reached on evidence introduced in a hearing in which one or more members acted as hearing officers.

§ 648.6. Panel Hearings.

(a) If a hearing panel has been designated to conduct a cease and desist order hearing, pursuant to Water Code Section 13302, a recommended decision, a recommendation for action, or a report of findings for consideration by the full Board shall be prepared and submitted to the Board and interested persons prior to the decision of the Board. Any order, recommendation, or report shall be based upon the record of the proceedings and shall state the reasons, which may include findings of fact, for the recommendation or report. A panel may declare its recommendation at the conclusion of the panel hearing. Nothing in this section shall prevent any member from submitting a separate opinion or report.

(b) When the hearing panel recommendation is presented to the full Board, the Board shall allow interested persons to present a summary of the evidence and their position and argument. Generally, no new evidence will be received by the full Board unless it is shown that such evidence was improperly excluded by the hearing panel or that such evidence could not have been produced at the time of the panel hearing.

(c) The full Board may adopt, modify or reject the recommendation of the hearing panel.

§ 648.7. Decision of the Board.

Any final decision made pursuant to evidence introduced at an adjudicatory proceeding shall be based on the record and shall include a statement of the reasons for the decision, and where appropriate, findings and conclusions.

§ 648.8. Prehearing Conferences.

(a) In any pending adjudicatory matter, a prehearing conference may be held to consider any of the following issues:

(1) The necessity or desirability of simplification, clarification, amplification or limitation of the issues.

(2) The admission of facts and of the genuineness of documents, and the possibility of stipulations with respect to facts.

(3) The identification of matters of which official notice may be taken.

(4) Arranging for the exchange of written testimony and documentation evidence.

(5) Consideration of requests that any party produce additional information relevant and material to the matter.

(6) Limitations on the number of witnesses.

(7) Consideration of such other matters as may expedite the orderly conduct and disposition of the proceedings.

(b) A prehearing conference may be requested by an interested person. The Executive Officer may schedule a conference whenever he determines that a conference may help in resolving any matter before the Board. A prehearing conference shall be held if so requested by the Board.

(c) Notice of prehearing conferences shall be given to all persons known by the Board to be interested in the matter.

(d) Statements made in prehearing conferences shall not be binding unless stipulated to by the person making the statement.

Adopt new sections 648-648.8 as follows:

§ 648. Laws Governing Adjudicative Proceedings.

(a) For purposes of this article, "adjudicative proceeding" means an evidentiary hearing for determination of facts pursuant to which the State Board or a Regional Board formulates and issues a decision.

(b) Incorporation of Applicable Statutes. Except as otherwise provided, all adjudicative proceedings before the State Board, the Regional Boards, or hearing officers or panels appointed by any of those Boards shall be governed by these regulations, chapter 4.5 of the Administrative Procedure Act (commencing with section 11400 of the Government Code), sections 801-805 of the Evidence Code, and section 11513 of the Government Code.

(c) Portions of Administrative Procedure Act Not Applicable. The following articles and sections of chapter 4.5 of the Administrative Procedure Act (commencing with section 11400 of the Government Code) are specifically not included in the procedures governing the conduct of hearings before the State Board, any of the Regional Boards, or hearing officers or panels appointed by those Boards:

Article 8. Language Assistance

Article 13. Emergency Decision

Article 14. Declaratory Decision

Except as provided in subdivision (b) of this section, chapter 5 of the Administrative Procedure Act (commencing with section 11500 of the Government Code) does not apply to hearings before the State Board, any of the Regional Boards, or hearing officers or panels appointed by those Boards.

(d) Waiver of Nonstatutory Requirements. The presiding officer may waive any requirements in these regulations pertaining to the conduct of adjudicative proceedings including but not limited to the introduction of evidence, the order of proceeding, the examination or cross-examination of witnesses, and the presentation of argument, so long as those requirements are not mandated by state or federal statute or by the state or federal constitutions.

§ 648.1 Parties and Other Interested Persons.

(a) The party or parties to an adjudicative proceeding before the Board shall include the person or persons to whom the agency action is directed and any other person whom the Board determines should be designated as a party. The hearing notice may specify a procedure for designation of the parties to a particular adjudicative proceeding.

(b) In a water right proceeding, the party or parties shall include the water right applicant or petitioner, persons who have filed unresolved protests, persons who have filed unresolved objections to a temporary change petition, persons who have filed an unresolved written complaint with the Board concerning the subject matter of the hearing, and any other persons who are designated as parties in accordance with the procedure specified in the hearing notice.

(c) Persons who fail to comply with the procedural requirements specified in the hearing notice for participation as parties in a proceeding may be dismissed as parties to the proceeding.

(d) The Board or presiding officer may provide an opportunity for presentation of policy statements or comments, either orally or in writing, by interested persons who are not participating as parties in the proceeding. Persons presenting nonevidentiary policy statements will not be subject to cross-examination but may be asked to respond to clarifying questions from the Board, staff, or others, at the discretion of the Board or presiding officer. The criteria and procedures applicable to participation in a Board adjudicative proceeding as an interested person may be established in the hearing notice or by the presiding officer. Interested persons will not normally be required to serve copies of their statements on the parties to the proceeding nor will they normally be allowed to participate in cross-examination. The hearing notice may require that any written policy statements proposed to be submitted to the Board, be submitted prior to the hearing. If the requirement for prior submittal of policy statements applies to persons who address the Board or a subcommittee of the Board at a meeting subject to the Bagley-Keene Open Meeting Act (article 9 (commencing with section 11110) of chapter 1 of article 1 of division 3 of title 2 of the Government Code), the requirement should be included in the notice of the meeting. Interested persons are not entitled to receive service of exhibits, testimony, or other documents served on the parties to the proceeding unless specifically so provided in the hearing notice or by the presiding officer.

§ 648.2 Official Notice.

The Board or presiding officer may take official notice of such facts as may be judicially noticed by the courts of this state. Upon notice to the parties, official notice may also be taken of any generally accepted technical or scientific matter within the Board's field of expertise, provided parties appearing at the hearing shall be informed of the matters to be noticed. The Board or presiding officer shall specify the matters of which official notice is to be taken. Parties shall be given a reasonable opportunity on request to refute officially noticed technical or scientific matters in a manner to be determined by the Board or presiding officer.

§ 648.3 Evidence by Reference.

Public records of the Board that are relevant to the subject of the hearing, and books, reports, and other evidence that have been prepared and published by a public agency, if otherwise admissible, may in the discretion of the Board be received in evidence as exhibits by reference without the necessity of supplying copies to the Board and other parties, provided the original or a copy is in the possession of the Board and the specific file folder or other exact location where it can be found is identified. The party offering an exhibit by reference shall designate the particular portions on which the party relies. Each exhibit shall be appropriately identified and designated in the record as an exhibit of the party offering the exhibit or an exhibit of Board staff.

§ 648.4 Identification of Witnesses; Presubmission and Presentation of Testimony and Exhibits.

(a) It is the policy of the State and Regional Boards to discourage the introduction of surprise testimony and exhibits.

(b) The hearing notice may require that all parties intending to present evidence at a hearing shall submit the following information to the Board prior to the hearing: the name of each witness whom the party intends to call at the hearing, the subject of each witness's proposed testimony, the estimated time required by the witness to present direct testimony, and the qualifications of each expert witness. The required information shall be submitted upon forms provided by the Board at a time specified by the Board.

(c) The hearing notice may require that direct testimony be submitted in writing prior to the hearing. Copies of written testimony and exhibits shall be submitted to the Board and to other parties designated by the Board in accordance with provisions of the hearing notice or other written instructions provided by the Board. The hearing notice may require submission of multiple copies of written testimony and exhibits for use by the Board and Board staff. Copies of general vicinity maps or large, nontechnical photographs generally will not be required to be submitted prior to the hearing.

(d) Any witness providing written testimony shall appear at the hearing and affirm that the written testimony is true and correct. Written testimony shall not be read into the record unless allowed by the presiding officer.

(e) Where any of the provisions of this section have not been complied with, the presiding officer may refuse to admit the proposed testimony or the proposed exhibit into evidence, and shall refuse to do so where there is a showing of prejudice to any party or the Board. This rule may be modified where a party demonstrates that compliance would create severe hardship.

(f) Rebuttal testimony generally will not be required to be submitted in writing, nor will rebuttal testimony and exhibits be required to be submitted prior to the start of the hearing.

§ 648.5 Order of Proceedings.

(a) Adjudicative proceedings shall be conducted in a manner as the Board deems most suitable to the particular case with a view toward securing relevant information expeditiously without unnecessary delay and expense to the parties and to the Board. Adjudicative proceedings generally will be conducted in the following order except that the chairperson or presiding officer may modify the order for good cause:

(1) An opening statement by the chairperson, presiding member, or hearing officer, summarizing the subject matter and purpose of the hearing;

(2) Identification of all persons wishing to participate in the hearing;

(3) Administration of oath to persons who intend to testify;

(4) Presentation of any exhibits by staff of the State or Regional Board who are assisting the Board or presiding officer;

(5) Presentation of evidence by the parties;

(6) Cross-examination of parties' witnesses;

(7) Any permitted redirect and recross-examination;

(b) Questions from Board members or Board counsel to any party or witness, and procedural motions by any party shall be in order at any time. Redirect and recross-examination may be permitted.

(c) If the Board or the presiding officer has determined that policy statements may be presented during a particular adjudicative proceeding, the presiding officer shall determine an appropriate time for presentation of policy statements.

(d) After conclusion of the presentation of evidence, all parties appearing at the hearing may be allowed to present a closing statement.

§ 648.51 Rules of Evidence

Adjudicative proceedings will be conducted in accordance with the provisions and rules of evidence set forth in Government Code section 11513. Hearsay evidence is admissible subject to the provisions of Government Code section 11513.

§ 648.6 Alternative Dispute Resolution.

Pursuant to article 5, commencing with section 11420.10, of chapter 4.5 of the Administrative Procedure Act, the State Board or any Regional Board may refer a dispute in a proceeding before it to mediation or nonbinding arbitration to resolve any adjudicative issues pending before it. Under no circumstances may any Board refer an issue to arbitration that is binding upon it with respect to adjudicative issues pending before that Board.

§ 648.7 Informal Hearings.

Unless the hearing notice specifies otherwise, the presiding officer shall have the discretion to determine whether a matter will be heard pursuant to the informal hearing procedures set forth in article 10, commencing with section 11445.20, of chapter 4.5 of the Administrative Procedure Act.

Among the factors that should be considered in making this determination are:

The number of parties,

The number and nature of the written comments received,

The number of interested persons wishing to present oral comments at the hearing,

The complexity and significance of the issues involved, and

The need to create a record in the matter.

An objection by a party, either in writing or at the time of the hearing, to the decision to hold an informal hearing shall be resolved by the presiding officer before going ahead under the informal procedure. Failure to make a timely objection to the use of informal hearing procedures before those procedures are used will constitute consent to an informal hearing. A matter shall not be heard pursuant to an informal hearing procedure over timely objection by the person to whom agency action is directed unless an informal hearing is authorized under subdivision (a) or (b) of section 11445.20 of the Government Code.

§ 648.8 Enforcement Orders and Sanctions.

Upon a determination that a person appearing before the State Board or any of the Regional Boards has committed any of the actions listed in section 11455.10 of the Government Code, the matter shall be certified to the superior court for contempt proceedings without further administrative review.

If a determination is made by a hearing officer or panel appointed by the State Board or any of the Regional Boards, the person alleged to have committed any of the listed actions may, within 10 days of notice of the determination, request a hearing before the full Board. The hearing will take place at the next regularly scheduled meeting of that Board, subject to the limitations of the Bagley-Keene Open Meeting Act. If the full Board determines that the listed actions occurred, the matter shall then be certified to the superior court for contempt proceedings.

A determination by a Regional Board pursuant to this section is not subject to review by the State Board under Water Code section 13320.

Repeal existing section 649.6:

§ 649.6. Subpoenas.

(a) Upon its own motion, the Board or a Board member may, and upon the motion of any person the board or a Board member shall, issue a subpoena directed to any person and requiring his attendance at a particular time and place to testify as a witness before the Board. It may also require him to bring with him any book, documents, or other things under his control which he is bound by law to produce in evidence.

b) Any person requesting issuance of a subpoena shall timely provide the Board with all information necessary to complete the subpoena. Thereafter the Board shall transmit the completed subpoena to the requester for service.

Adopt new section 649.6 as follows:

§ 649.6 Subpoenas.

(a) Upon its own motion or upon request of any person, the Board may issue subpoenas and subpoenas duces tecum for attendance at a proceeding and for production of documents at any reasonable time and place or at a hearing.

(b) Article 11 (commencing with section 11450.05) and article 12 (commencing with section 11455.10) of chapter 4.5 of part 1 of division 3 of title 2 of the Government Code shall apply to the issuance of a subpoena or subpoena duces tecum in an adjudicative proceeding. The Board may also compel attendance, testimony, or the production of evidence as provided in article 3 (commencing with section 1090) of chapter 3 of part 1 of division 2 of the Water Code.

(c) Section 1086 of the Water Code does not apply to any witness required to attend an adjudicative proceeding pursuant to article 11 (commencing with section 11450.05) of chapter 4.5 of part 1 of division 3 of title 2 of the Government Code.

(d) Article 5 (commencing with section 1105) of chapter 3 of part 1 of division 2 of the Water Code applies to any person required to testify or produce any evidence pursuant to a subpoena or subpoena duces tecum or pursuant to a notice issued under section 11450.50 of the Government Code.

Repeal Existing Sections 760-763

§ 760. Proceedings in Lieu of Hearing.

Although the board may in its discretion hold a hearing on an application at any time, the following proceedings in lieu of hearing are authorized to expedite action on pending protested applications:

(a) Major Protested Applications and Petitions. A major protested application or petition is any protested application or petition for more than three cubic feet per second by direct diversion or more than 200 acre-feet per year by storage. If the interested parties with the approval of the board so stipulate in writing, then the following proceedings may be taken in lieu of hearing:

(1) Any petition, application or protest shall be submitted upon (1) the official records of the board including, but not limited to, reports made by the board on investigations, field or otherwise, and (2) relevant research and studies by the board, together with such relevant written representations, records, and documents as the parties and other interested persons may submit. Such stipulation may include additional provisions adopted by the parties, with the approval of the board, to dispose of such issues informally and expeditiously.

(2) In the event the board makes a field investigation or investigations pursuant to paragraph (1) of this subsection, notice of the time and place shall be given to the parties and to other interested persons known to the board, who may attend and offer relevant information within such time as the board may prescribe.

(3) In its decision the board shall indicate the records, documents, and other data relied upon. Copies of the indicated records, documents, and data shall constitute the record of evidence for the purposes of any further proceedings.

(4) Any interested person may secure a copy of the record of evidence upon payment of the cost of preparation and certification.

(5) If it appears to the board during proceedings under this section that a hearing should be held prior to final action, the board may require a hearing.

(b) Minor Protested Applications and Petitions.

(1) The board's Division of Water Rights shall conduct a filed investigation on all protested applications or petitions regarding three cubic feet per second or less by direct diversion or 200 acre-feet per year or less by storage. The applicant or petitioner and the protestants will be given prior notice of the field investigation to enable them to attend and present evidence supporting their position.

(2) If the protests cannot be resolved during the field investigation, a staff analysis will be prepared and forwarded by registered mail to the parties. The staff analysis will summarize the factual situation and present staff recommendations on whether the application should be approved and the terms and conditions to be included in any permit issued.

(3) The staff analysis mailed to the parties will include notice that the board intends to act on the application without a hearing unless on or before 30 days from the date of mailing of the notice the applicant or any protestant objects in writing to the staff analysis and requests a board hearing. Paragraphs (3) and (4) of subsection (a) shall apply to decisions made pursuant to this subsection.

(4) A request for hearing shall specify the unresolved issues. The board shall restrict any hearing to consideration of those issues.

§ 761. Procedure at Hearings.

(a) Parties Recognized at Hearing. In addition to applicants, petitioners, and protestants of record, the board in its discretion, and upon such terms as it may impose to avoid prejudice to the parties, may recognize as interested parties other persons appearing at a hearing. Upon being so recognized, interested parties may participate in the proceedings. The board may request testimony and evidence from the appropriate California Regional Water Quality Control Board.

(b) Appearances -Attorneys and Agents. Parties appearing in their own behalf shall identify themselves at the beginning of the hearing. When a party is represented by an agent or attorney, such agent or attorney shall likewise enter his appearance before the board and thereafter will be recognized as fully controlling the case on behalf of the party. When a party is represented by more than one agent or attorney, service of notice or other papers upon one of such agents or attorneys shall be sufficient.

(c) Conduct of Hearings. Hearings shall be conducted as the board deems most suitable to the particular case with a view toward securing relevant information expeditiously without unnecessary delay and expense to the parties and to the board.

(d) Evidence. The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant, non-repetitive evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but shall not be sufficient by itself to support a finding unless it would be admissible over objection in civil actions. The rules of privilege shall be effective to the same extent that they are now or hereafter may be recognized in civil actions. Irrelevant or unduly repetitious evidence shall be excluded.

(e) Official Notice. Before or after submission of a matter for decision, official notice may be taken by the board of such facts as may be judicially noticed by the courts of this State. Before submission of a matter for decision, official notice may also be taken of any generally accepted technical or scientific matter within the board's special field, provided parties appearing at the hearing shall be informed of the matters to be noticed. Such matter shall be noted in the record, and referred to therein, or appended thereto. Such parties shall be given a reasonable opportunity on request to refute such officially noticed technical or scientific matters by evidence or by written or oral presentation of authority. The manner of such refutation shall be determined by the board.

(f) Evidence by Reference. Public records of the board which are relevant to the subject of the hearing, and books, reports, and other papers which have been prepared and published by a public agency, including bulletins and reports of the Department of Water Resources, if otherwise admissible, may in the discretion of the board be received into evidence as exhibits by reference without the necessity of supplying copies to the board and other parties, provided the original or a copy is in the possession of the board. The parties offering same shall designate the particular portions on which they rely. Each such matter shall be appropriately identified and designated by number in the record as an exhibit of the party offering same or of the board's staff.

(g) Examination of Witnesses. Oral evidence shall be taken only on oath or affirmation. Each party shall have the right to call and examine witnesses; to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called the witness to testify; to rebut the adverse evidence; and to call and examine an adverse party or adverse witness as if under cross-examination without being bound by the testimony of the adverse party or witness. Board members and staff may participate as appropriate, using their technical knowledge and experience for the primary purpose of developing a full, fair, and accurate record. Questioning of witnesses will generally be permitted only by the attorneys or agents of parties so represented, or by parties who appear on their own behalf, or by members of the board or its staff. In the discretion of the board questions may also be asked of a witness by an engineer or other person technically qualified in the subject being considered.

(h) Order of Procedure. There shall be an opening statement by the hearing officer summarizing the subject matter and purpose of the hearing and the procedures to be followed. The hearing officer will then ask all persons wishing to participate in the hearing to identify themselves. Unless otherwise ordered, staff shall then move to enter staff exhibits into evidence. The applicant shall then present the case in chief, followed by protestant or other adverse party or parties, and such rebuttal evidence as may be offered. Witnesses shall be subject to cross-examination, first by the opposing party or parties, then by the board's staff and by members of the board. Cross- examination shall generally await completion of the witness's direct examination, provided that in the discretion of the board a witness may be cross-examined prior to completion of his direct testimony on a particular portion of this testimony, for example, upon his testimony relating to one or more related exhibits. Questions designed merely to clarify a particular point or to correct an obvious mistake may be permitted at any time. Questions from board members or staff and procedural motions by any person shall be in order at any time.

(i) Opening Statements, Oral Arguments and Briefs. Prior to presenting the case in chief, parties or their attorneys are encouraged to make statements which briefly and concisely state what the proposed testimony and exhibits are intended to establish. At the close of the hearing, if the board deems it advisable, time will be allowed for oral arguments or the filing of briefs. The time and manner of presentation of oral arguments and filing of briefs shall be as directed by the board. Copies of briefs shall be served on opposing parties and a statement of such service with manner of service indicated shall be filed with each brief.

(j) Transcript of Hearings. The hearing shall be reported by a stenographic reporter who shall prepare and certify a true transcript for the board's files.

(k) Further Hearings. After the submission of an application or petition for decision and before such decision has been made, the board in its discretion may reopen the proceeding for further hearing.

§ 762. Witnesses and Exhibits.

(a) It is the policy of the board that the introduction of surprise testimony and exhibits at hearings be discouraged. Therefore, the requirements of this section shall be strictly enforced.

(b)(1) Not later than 10 days before the hearing, or such other time as specified by the board, applicants, protestants, and interested parties intending to participate shall submit to the board and to each party, upon forms provided by the board, the name of each witness who will appear, together with a brief summary of the proposed testimony, the estimated time required by the witness to present his direct testimony, and the qualifications of each expert witness.

(2) Where it appears likely that extensive technical testimony will be presented at the hearing, the board may require that such testimony be submitted in writing to the board and to each party not later than 10 days before the hearing, or such other time as specified by the board. Such requirement shall be stated in the notice of hearing. The witness presenting such written testimony shall appear at the hearing and affirm that the written testimony is true and correct; the testimony shall not be read into the record. The witness shall be subject to cross-examination.

(c) Where proposed exhibits contain declarations of facts sought to be proved, and particularly where such exhibits support the proposed testimony of an expert witness, three copies of the exhibits shall be submitted to the board and a copy to each party not later than 10 days before the hearing, or such other time as specified by the board. Three copies of technical drawings or maps shall also be submitted not later than 10 days prior to the hearing, or such other time as specified by the board. Parties may be required to furnish additional copies at the board's request. Other exhibits, such as non- declarative documents, general vicinity maps or nontechnical photographs, need not be submitted in advance.

(d) Where any of the provisions of this section have not been complied with, the board may refuse to admit the proposed testimony or the proposed exhibit into evidence, and shall refuse to so admit where there is a showing of prejudice to any party or to the board. Where a party demonstrates that compliance would create severe hardship, the board may modify this rule.

(e) This section does not apply to the introduction of rebuttal evidence, either in the form of testimony or exhibits.

§ 763. Subpoenas.

Upon its own motion the board may, and upon the motion of any party the board shall, issue a subpoena directed to any person requiring attendance at a particular time and place to testify as a witness before the board. It may also require the person to bring to the hearing any book, documents, or other things under the person's control which by law, the person is bound to produce in evidence.

A copy of an affidavit containing the information required by Code of Civil Procedure Section 1985 shall be served with any subpoena duces tecum. The original of such affidavit shall be filed with the board prior to or at the time designated for appearance of the witness and production of the matters and things described in the subpoena. All subpoenas shall be served in the manner specified in Code of Civil Procedure Section 1987(a), and a witness served with a subpoena, other than a witness served on behalf of the board, shall be entitled to fees and mileage in accordance with the provisions of Code of Civil Procedure Section 1987(a) and Government Code Section 68093.

Adopt new section 761 as follows:

§ 761. Hearings on Water Right Applications and Other Water Right Matters.

Adjudicative hearings on water right applications and other water right matters shall be conducted in accordance with the procedures set forth in article 2 of chapter 1.5 of this division. Nothing in this section shall limit the Board's authority to conduct non-adjudicative informational hearings.

Repeal sections 764.12 and 764.13 of Title 23.

§ 764.12 Noncompliance with Order: Revocation of Entitlement.

If a respondent refuses or neglects to comply with any order issued pursuant to Section 764.11 within such reasonable period of time as allowed by the board, or such extension thereof as may for good cause be allowed by the board, or such extension thereof as may for good cause be allowed by the board, and if such order includes a finding that waste, unreasonable use, method of use, or method of diversion has occurred in connection with exercise of a right evidenced by a permit or license issued by the board, a revocation action may be commenced by the board pursuant to Article 5 of Chapter 6 in the case of a permit, or pursuant to Article 7 of Chapter 9 in the case of a license, of Part 2 of Division 2 of the Water Code.

§ 764.13 Noncompliance with Order: Enforcement by Attorney General.

If a respondent fails or refuses to comply with any order issued pursuant to Section 764.11 within such reasonable period of time as allowed by the board, or such extension thereof as may for good cause be allowed by the board, and if such order includes a finding that waste, unreasonable use, method of use, or method of diversion has occurred in connection with acts by a person not subject to a permit or license issued by the board or that there is a public nuisance as defined in Water Code Section 305, the board may request appropriate legal action by the Attorney General.