STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT RESOURCES BUILDING - FIRST-FLOOR AUDITORIUM SACRAMENTO, CALIFORNIA WEDNESDAY, JULY 1ST, 1998 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JOHN CAFFREY, COHEARING OFFICER JAMES STUBCHAER, COHEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 JOHN W. BROWN 7 STAFF MEMBERS: 8 WALT PETTIT - Executive Director 9 THOMAS HOWARD - Supervising Engineer VICTORIA A. WHITNEY - Senior Engineer 10 11 COUNSEL: 12 WILLIAM R. ATTWATER - Chief Counsel BARBARA LEIDIGH - Senior Staff Counsel 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 2 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 134 West Sycamore STreet 4 Willows, California 95988 BY: J. MARK ATLAS, ESQ. 5 JOINT WATER DISTRICTS: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 7 P.O. Box 1679 Oroville, California 95965 8 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI P.O. Box 357 11 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 BY: THOMAS W. BIRMINGHAM, ESQ. 18 THE BAY INSTITUTE OF SAN FRANCISCO: 19 GRAY BOBKER 20 55 Shaver Street, Suite 330 San Rafael, California 94901 21 CITY OF ANTIOCH, et al.: 22 FREDERICK BOLD, JR., ESQ. 23 1201 California Street, Suite 1303 San Francisco, California 94109 24 25 CAPITOL REPORTERS (916) 923-5447 3 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 2480 Union Street 4 San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 2800 Cottage Way, Roon E1712 7 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 8 CALIFORNIA URBAN WATER AGENCIES: 9 BYRON M. BUCK 10 455 Capitol Mall, Suite 705 Sacramento, California 95814 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 12 MCDONOUGH, HOLLAND & ALLEN 13 555 Capitol Mall, 9th Floor Sacramento, California 95814 14 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 1300 I Street, Suite 1101 17 Sacramento, California 95814 BY: MATTHEW CAMPBELL, ESQ. 18 NATURAL RESOURCES DEFENSE COUNCIL: 19 HAMILTON CANDEE, ESQ. 20 71 Stevenson Street San Francisco, California 94105 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 22 DOOLEY HERR & WILLIAMS 23 3500 West Mineral King Avenue, Suite C Visalia, California 93191 24 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 4 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 6201 S Street 4 Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 311 East Main Street, 4th Floor 7 Stockton, California 95202 BY: STEVEN P. EMRICK, ESQ. 8 EAST BAY MUNICIPAL UTILITY DISTRICT: 9 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street Oakland, California 94623 11 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER P.O. Box 5654 17 Fresno, California 93755 BY: WARREN P. FELGER, ESQ. 18 THOMES CREEK WATER ASSOCIATION: 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 Flournoy, California 96029 21 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 5 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 1390 Market Street, Sixth Floor 4 San Francisco, California 94102 BY: DONN W. FURMAN, ESQ. 5 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 6 DANIEL F. GALLERY, ESQ. 7 926 J Street, Suite 505 Sacramento, California 95814 8 BOSTON RANCH COMPANY, et al.: 9 J.B. BOSWELL COMPANY 10 101 West Walnut Street Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 517 East Olive Street 14 Turlock, California 95381 BY: ARTHUR F. GODWIN, ESQ. 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 Sacramento, California 95814 18 PLACER COUNTY WATER AGENCY, et al.: 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 24 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 6 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE P.O. Box 846 4 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY P.O. Box 1019 7 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 8 CALIFORNIA FARM BUREAU FEDERATION: 9 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive Sacramento, California 95833 11 SANTA CLARA VALLEY WATER DISTRICT: 12 MORRISON & FORESTER 13 755 Page Mill Road Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY P.O. Box 777 17 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 926 J Street 20 Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY P.O. Box 427 23 Durham, California 95938 BY: DON HEFFREN 24 25 CAPITOL REPORTERS (916) 923-5447 7 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 3031 West March Lane, Suite 332 East 4 Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 525 West Sycamore Street 7 Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY P.O. Box 307 13 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT P.O. Box 4060 16 Modesto, California 95352 BY: BILL KETSCHER 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 SAVE THE BAY 19 1736 Franklin Street Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 23 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 8 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 4 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 1201 Civic Center Drive 7 Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 10 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 11 CONTRA COSTA WATER DISTRICT: 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 22759 South Mercey Springs Road 17 Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 20 Merced, California 95344 BY: MIICHAEL L. MASON, ESQ. 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 R.W. MCCOMAS 23 4150 County Road K Orland, California 95963 24 25 CAPITOL REPORTERS (916) 923-5447 9 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 4 Sonora, California 95730 BY: TIM MCCULLOUGH 5 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 7 P.O. Box 1679 Oroville, California 95965 8 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 1550 California Street, Suite 6 11 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 14 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 15 EL DORADO COUNTY WATER AGENCY: 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 501 Walker Street 21 Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ P.O. Box 4060 24 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 10 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. P.O. Box 7442 4 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 7 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 8 and DANTE JOHN NOMELLINI, JR., ESQ. 9 TULARE LAKE BASIN WATER STORAGE UNIT: 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue Corcoran, California 93212 12 AKIN RANCH, et al.: 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 18 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 19 SIERRA CLUB: 20 JENNA OLSEN 21 85 Second Street, 2nd Floor San Francisco, California 94105 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 LYNNEL POLLOCK 24 625 Court Street Woodland, California 95695 25 CAPITOL REPORTERS (916) 923-5447 11 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS P.O. Box 60940 4 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN P.O. Box 156 7 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 128 J Street, 2nd Floor 10 Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 13 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 14 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 15 REID W. ROBERTS, ESQ. 16 311 East Main Street, Suite 202 Stockton, California 95202 17 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 18 JAMES F. ROBERTS 19 P.O. Box 54153 Los Angeles, California 90054 20 SACRAMENTO AREA WATER FORUM: 21 CITY OF SACRAMENTO 22 980 9th Street, 10th Floor Sacramento, California 95814 23 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 12 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID A. SANDINO, ESQ. 7 P.O. Box 942836 Sacramento, California 94236 8 FRIANT WATER USERS AUTHORITY: 9 GARY W. SAWYERS, ESQ. 10 575 East Alluvial, Suite 101 Fresno, California 93720 11 KERN COUNTY WATER AGENCY: 12 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 13 400 Captiol Mall, 27th Floor Sacramento, California 95814 14 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 17 Oroville, California 95965 BY: MICHAEL V. SEXTON, ESQ. 18 SAN JOAQUIN COUNTY: 19 NEUMILLER & BEARDSLEE 20 P.O. Box 20 Stockton, California 95203 21 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 24 Sacramento, California 95814 BY: PAUL S. SIMMONS, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 13 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 14 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: CHARLES H. WILLARD 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B. 100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 15 1 INDEX 2 ---oOo--- 3 4 5 PAGE 6 OPENING OF HEARING 19 7 AFTERNOON SESSION 115 8 END OF PROCEEDINGS 247 9 ---oOo--- 10 11 POLICY STATEMENTS: 12 ASSOCIATION OF CALIFORNIA WATER AGENCIES 74 13 OPENING STATEMENTS: 14 CITY OF ANTIOCH, CITY OF PITTSBURG, DIABLO WATER DISTRICT 79 15 DEPARTMENT OF FISH AND GAME 80 16 STATE WATER CONTRACTORS 83 17 REGIONAL COUNCIL OF RURAL COUNTIES 85 18 CONTRA COSTA WATER DISTRICT 92 19 DEPARTMENT OF WATER RESOURCES 96 20 UNITED STATES DEPARTMENT OF INTERIOR 98 21 SAN JOAQUIN RIVER GROUP AUTHORITY 100 22 STOCKTON EAST WATTER DISTRICT 107 23 SAN JOAQUIN RIVER GROUP AUTHORITY 116 24 ---oOo--- 25 CAPITOL REPORTERS (916) 923-5447 16 1 I N D E X (Cont'd.) 2 CASE IN CHIEF: 3 SAN JOAQUIN COUNTY 120 4 CROSS-EXAMINATION BY: 5 WESTLANDS WATER DISTRICT 130 6 KERN COUNTY WATER AGENCY 135 CAMP FAR WEST IRRIGATION DISTRICT, et al. 138 7 BY STAFF 139 8 REDIRECT EXAMINATION: 9 SAN JOAQUIN COUNTY 140 10 RECROSS-EXAMINATION: 11 WESTLANDS WATER DISTRICT 142 12 CASE IN CHIEF: 13 CENTRAL DELTA WATER DISTRICT 146 14 CROSS-EXAMINATION: 15 PORGANS AND ASSOCIATES 190 BY STAFF 192 16 REDIRECT EXAMINATION: 17 CENTRAL DELTA WATER AGENCY 197 18 RECROSS-EXAMINATION: 19 BY STAFF 207 20 CASE IN CHIEF: 21 SAN LUIS AND DELTA MENDOTA WATER AUTHORITY 210 22 CROSS-EXAMINATION: 23 CENTRAL DELTA WATER AGENCY 212 24 PORGANS AND ASSOCIATES 215 25 CAPITOL REPORTERS (916) 923-5447 17 1 I N D E X (Cont'd.) 2 CASE IN CHIEF: (Cont'd.) 3 CENTRAL DELTA WATER DISTRICT 218 4 CROSS-EXAMINIATION: 5 WESTLANDS WATER DISTRICT 230 6 PORGANS AND ASSOCIATES 242 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS 244 7 8 ---oOo--- 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 18 1 WEDNESDAY, JULY 1, 1998, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 COHEARING OFFICER CAFFREY: Good morning. Please, 5 find a seat. If you haven't found one yet there are plenty 6 of them in the room. This is the time and place for the 7 hearing on the Bay-Delta Water Rights. 8 My name is John Caffrey, I have the honor of 9 serving as Chairman of the State Water Resources Control 10 Board which, of course, is the entity responsible for 11 conducting these proceedings. I would read a statement 12 into the record which is our customary practice at this 13 time if you'll bear with me it will take a little while. 14 This hearing is being held in accordance with the 15 revised hearing notice dated May 6, 1998. This hearing 16 previously was noticed on December 2nd, 1997, and was 17 subsequently rescheduled. With me today proceeding from my 18 far left are Board's Chief Counsel Mr. Bill Attwater. Next 19 to Mr. Attwater is our Executive Director Mr. Walt Pettit. 20 Immediately next to me on my left is Board Member 21 Mary Jane Forster. Usually next to Ms. Forster is our 22 Counsel Board Member Marc Del Piero. Mr. Del Piero is in a 23 meeting in the Bay Area at the request of the Chair. And 24 he will hopefully be joining us later this afternoon. 25 From my immediate right our Board Vice-Chairman CAPITOL REPORTERS (916) 923-5447 19 1 Jim Stubchaer and Board Member John Brown. Mr. Stubchaer 2 and I will be cohearing officers in this proceedings. One 3 or both of us will be present at all times during this 4 proceeding. To keep up on the hearing each Board Member 5 has a complete copy of the documents that the parties have 6 submitted and will have transcripts available -- will have 7 transcripts as soon as they are available. 8 Assisting the Board at the staff table are Barbara 9 Leidigh our Senior Staff Counsel; Victoria Whitney, Senior 10 Engineer; and Tom Howard, Supervising Engineer. 11 The purpose of this hearing is to afford the 12 parties an opportunity to present relevant oral testimony, 13 maps, charts, studies, and other materials which may assist 14 the Board in making determinations on four subjects. 15 One, whether and under what conditions to extend 16 the interim changes in the water rights of the Department 17 of Water Resources and the United States Bureau of 18 Reclamation under Order WR 95-6 past December 31st, 1998. 19 Two, the assignment of responsibilities for 20 meeting the objectives of the 1995 Bay-Delta Plan. Three, 21 whether or not to approve a joint petition of the 22 Department of Water Resources and the United States Bureau 23 of Reclamation to combine their points of diversion in the 24 Southern Delta. Four, whether or not to approve a petition 25 of the United States Bureau of Reclamation to change the CAPITOL REPORTERS (916) 923-5447 20 1 places of use and purposes of use in its water rights 2 permits for integrated parts of the Federal Central Valley 3 Project. 4 Additionally, the Board will consider whether or 5 not to recommend actions to the Central Valley Regional 6 Water Quality Control Board concerning water quality 7 actions and to the Department of Water Resources and the 8 United States Bureau of Reclamation concerning facilities 9 in the Southern Delta and in the Suisun Marsh. 10 In this hearing the central consideration is how 11 to implement the flow dependent objectives in the 1995 12 Bay-Delta Plan. Because of the nature of the objectives 13 the responsibility for meeting them involves allocating 14 responsibility among water right holders to meet water 15 flows and requiring changes in the operation of facilities 16 used in the diversion and use of water. The allocation of 17 responsibilities will be focused on the water rights listed 18 in Enclosure 2(a) to the hearing notice. 19 A Draft Environment Impact Report, including 20 appendices is available that analyzes the environmental 21 affects of implementing the 1995 Bay-Delta Plan. A related 22 matter for consideration in this hearing is a joint water 23 right change petition filed by the California Department of 24 Water Resources and the U.S. Bureau of Reclamation for 25 their State Water Project and the Central Valley Project CAPITOL REPORTERS (916) 923-5447 21 1 water rights. 2 The DWR and USBR seek to add to their respective 3 rights each other's point of diversion in the Southern 4 Delta. With the proposed change the SWP could use the 5 Tracy pumping plant as well as its diversion point at 6 Clifton Court Forebay and its authorized diversion point at 7 Italian Slough. And the CVP could use the Clifton Court 8 Forebay and SWP's authorized diversion point at Italian 9 Slough as well as its diversion point at the Tracy pumping 10 plant. This proposed change in operations is referred to 11 as the, quote, "Joint points of diversion," unquote. 12 The water rights permits and licenses that may be 13 changed under the petition are listed in Enclosure 2(b). 14 Chapter 13 of the Draft EIR for implementation of the 1995 15 Bay-Delta Plan objectives analyses the affects of eight 16 alternatives for acting upon the petition for the joint 17 points of diversion. 18 In another matter for consideration in this 19 hearing is a water right change petition filed by the USBR 20 for changes in place of use and purposes of use under water 21 rights permits for the CVP. Approval of the change 22 petition would consolidate the places of use of many of the 23 CVP water rights permits, expand the places of use to 24 include areas where CVP water is being used outside an 25 authorized place of use, and conform all the purposes of CAPITOL REPORTERS (916) 923-5447 22 1 use under the group of CVP permits that are subject to the 2 petition. 3 A Draft EIR separate from the Draft EIR for the 4 implementation of the 1995 Bay-Delta Plan objectives was 5 released in December 1997 to address the environmental 6 affects of the proposed change in place and purpose of use. 7 The water right permits that may be changed under the 8 petition are listed in Enclosure 2(c) to the hearing 9 notice. 10 The Board will conduct this hearing in phases as 11 described in the revised notice of public hearing. 12 Currently eight phases are planned. The Board may add or 13 combine phases. Although the hearing is being phased for 14 convenience in addressing different subjects, a single 15 hearing record will be created. 16 The first phase will address whether or not to 17 adopt an extension of Order WR 95-6, or an equivalent 18 temporary compliance with the 1995 Bay-Delta Plan. The 19 other phases are as listed in the hearing notice. We 20 expect to start Phase I later today. 21 Key issues: The key hearing issues are listed in 22 the revised notice of public hearing dated May 6th, 1998, 23 and are as follows: 24 Number one, should the State Water Board extend 25 the effective period of Order WR 95-6? If, yes, how long CAPITOL REPORTERS (916) 923-5447 23 1 should it be extended and what terms and conditions should 2 it contain? 3 Two, what requirements for implementing the flow 4 dependent objectives in the 1995 Bay-Delta Plan should be 5 adopted in a water right decision? 6 Three, should the State Water Board approve the 7 petition changes of point of diversion under the CVP and 8 the SWP permits? 9 Four, should the State Water Board approve the 10 petition changes of place of use and purpose of use of 11 water under the CVP permits? 12 Five, with respect to the negotiated agreements 13 that have been reached among some of the parties, should 14 the State Water Board add water right terms and conditions 15 to the water rights of the parties to the agreements, or 16 take other actions to implement the regulatory provisions 17 of these agreements? 18 Six, what evidence supports the State Water 19 Board's exercising its jurisdiction and taking actions 20 listed in the water rights listed in Enclosures 2(a), (b), 21 and (c) for the purpose of ensuring that water originating 22 within the watersheds of the Bay-Delta estuary is diverted 23 and used within the constraints of the California 24 Constitution Article 10, Section 2, known as the Reasonable 25 Use Doctrine, and the Public Trust Doctrine? CAPITOL REPORTERS (916) 923-5447 24 1 This is an explanation of the order of proceeding. 2 Our order of proceeding in this hearing will be to first, 3 take appearances, then receive general nonevidentiary 4 policy statements from those who wish to present only a 5 policy statement. The Board will also accept written 6 policy statements. A policy statement is a nonevidentiary 7 statement. It is subject to the limitations listed in the 8 hearing notice. Presenters of policy statements should 9 fill out a speaker card and give it to the staff at the 10 front table. We have color-coded cards. Mr. Stubchaer, 11 maybe you can hold up the correct color for those people. 12 COHEARING OFFICER STUBCHAER: For parties 13 participating in the hearing, it's the orangish color, 14 golden rod. And for policy statements it's the green one. 15 C.O. CAFFREY: Policy statements are limited to five 16 minutes each and presenters of policy statements are 17 encouraged to present their policy statements in writing. 18 After the general policy statements we will commence 19 Phase I. 20 In Phase I we will first hear policy statements 21 specific to Phase I and then hear any opening statements 22 from parties who do not plan to present their case in chief 23 in Phase I. Next we will hear testimony from the witnesses 24 called by the first party followed by cross-examination by 25 other parties, Board staff, and Board Members. This may be CAPITOL REPORTERS (916) 923-5447 25 1 followed by redirect evidence and recross-examination and 2 possibly rebuttal. 3 To try to make sure we can hear from everyone in a 4 timely matter, we encourage everyone to be efficient in 5 presenting their cases. Except where we approve a 6 variation, we will strictly follow the procedures set forth 7 in the Board's regulation and the attachment to hearing 8 notice titled, "Bay-Delta Water Rights Hearing Information 9 Concerning Appearances by Parties." 10 Oral testimony of each witness is limited to 20 11 minutes with an overall cap on oral testimony of three 12 hours for each party in their case in chief. The initial 13 time allowed for cross-examination is one hour. Additional 14 time may be allowed for good cause. We will use a timer to 15 keep track of the time limits. And we will stop the timer 16 during interruptions and procedural points. So we won't 17 penalize you for the time that we are taking. 18 Unless we announce otherwise, we will schedule 19 each day of the hearing to begin at 9:00 and to conclude at 20 5:00 p.m. with one hour for lunch and two 12-minute breaks 21 during the day. We will try to announce any changes in 22 this schedule at least a day in advance. And let me say 23 that this is the first announcement of that change in the 24 schedule, because to accommodate a number of the requests 25 and even the travel plans of some of the Board Members, CAPITOL REPORTERS (916) 923-5447 26 1 tomorrow which for many is the beginning -- or the eve of 2 the 4th of July holiday, tomorrow we will go no later than 3 3:00 in the afternoon. Hopefully, we will accommodate many 4 of you and many of us who have travel plans. 5 We will call for each party's testimony and 6 related cross-examination in order and I will read the 7 order at the beginning of each phase. That completes the 8 bulk of the statement. We will now follow the specific 9 order alluded to earlier in the statement. We are going to 10 start with the appearances of the parties. And let me just 11 briefly go over the order one more time outside of the 12 official reading. 13 I'm sure there will be many here to help 14 Mr. Stubchaer and I keep track if we digress, but after the 15 appearances we will have general policy statements that 16 pertain to more than just Phase I. So this is the 17 opportunity for people to make policy statements regarding 18 the entire general subject. After that, we will then hear 19 policy statements specific to Phase I. After that, we will 20 hear opening statements specific to Phase I for parties not 21 presenting evidence. 22 This is an option for people, it's not a 23 requirement, but if such parties wish to make opening 24 statements at that time then we will do so. After that, we 25 will administer the oath and the affirmation, and after CAPITOL REPORTERS (916) 923-5447 27 1 that we will go to the Phase I cases in chief. 2 And the order -- just so that you'll know now, I 3 don't know that we will -- when exactly we will get to 4 this, what time today or first thing tomorrow, because we 5 do have something like 200 parties represented by over 100 6 attorneys. Looking at the size of the audience this 7 morning, I would imagine that all of those people are not 8 here today. So they may be making their appearances in 9 other phases, but we must still go through the entire list 10 today to see who is and is not here for the purposes of the 11 record. 12 For purposes of your understanding of the order 13 that we will take the cases in chief when we get to the 14 meat in Phase I, they will be in this order: San Joaquin 15 County, Central San Joaquin Water Conservation District, 16 Stockton East Water District, South Delta Water Agency, 17 Central Delta Water Agency, San Luis and Delta Mendota 18 Water Authority, Westlands Water District, and then what 19 I'm calling the area one landowners, I think they have been 20 referred to as the Y. Steven Pilibos, et al., Group. So 21 that will be the order. All right. 22 You should have, those of you in the audience 23 should have a list, I hope. Ms. Whitney, they should have 24 a list such as the one I'm holding up here. 25 MS. WHITNEY: I put one at the podium, also. CAPITOL REPORTERS (916) 923-5447 28 1 C.O. CAFFREY: And there is also one at the podium. 2 This is our best of effort at listing all the parties. And 3 it is done by the representative in alphabetical order of 4 the representative's names. So what we would like to do 5 then is have you take a look at this, if you have it in 6 front of you now. And as I call the name alphabetically, 7 please, come to the podium so we can see who you are, 8 identify yourself, and let us know -- I'm going to ask 9 Mr. Stubchaer to check me on this, let us know if the 10 information on this document is correct. 11 Now, Ms. Leidigh, is it necessary for them to read 12 the names of all the parties that they are representing, or 13 is it appropriate just to verify that this is a correct 14 document? 15 MS. LEIDIGH: I've already had the conversation with 16 one person who had loads and loads of clients. I don't 17 think it's necessary to read all of them so long as the 18 attorney makes it clear if there are additions or deletions 19 from the list that need to be made. And in one case I 20 think the attorney is going to give us a list rather than 21 read the names of all of his clients into record. So, yes, 22 that's right, there's no need to read all of them. 23 C.O. CAFFREY: All right. And I'll repeat -- and, 24 please, bear with us because this is going to be a 25 complexed-phased proceeding and we may take time out as we CAPITOL REPORTERS (916) 923-5447 29 1 go to confer up here as to making proper rulings on your 2 motions or questions. But I will repeat what 3 Ms. Leidigh said, please, come up identify yourself and 4 then state whether or not the list is correct with regard 5 to your representation. If it is correct, that is all you 6 need to stay and we will duly note. If there are any 7 changes that need to be made, any omissions, or any changes 8 of addresses, any corrections whatsoever then please tell 9 us. All right, we'll proceed then. 10 Is J. Mark Atlas here? William H. Baber? 11 MR. SEXTON: Mr. Caffrey, Michael Sexton for 12 Mr. Baber, the list appears correct. 13 THE COURT REPORTER: I'm sorry, I didn't get your 14 name. 15 MR. SEXTON: Michael Sexton. 16 THE COURT REPORTER: Thank you. 17 C.O. CAFFREY: Thank you, sir. 18 Robert J. Baiocchi? Baiocchi is not here. Bruce L. 19 Belton? Thomas W. Birmingham? Good morning, sir. 20 MR. BIRMINGHAM: Good morning, Mr. Chairman and 21 Members of the Board, Thomas Birmingham appearing on behalf 22 of the Westlands Water District. And with permission of 23 the Board during the first phase of this hearing we will 24 also be representing the San Luis and Delta Mendota Water 25 Authority in place of Diane Rathmann. CAPITOL REPORTERS (916) 923-5447 30 1 C.O. CAFFREY: All right. Without objection that 2 will be the order. 3 MR. BIRMINGHAM: Thank you very much. 4 C.O. CAFFREY: Thank you, sir. 5 Gary Bobker? Mr. Bobker is not here today. And as I 6 mentioned earlier, we will go through the appearances in 7 later phases for those who were not here for this phase. 8 Frederick Bold, Jr.? I see Mr. Bold in the front row. 9 MR. BOLD: Good morning, Members of the Board. I'm 10 Frederick Bold, Jr., and the data in your list is correct. 11 I'm representing the City of Antioch, the City of 12 Pittsburg, and the Diablo Water District. 13 C.O. CAFFREY: Thank you, sir. Roberta Borgonovo? 14 Not here today. Alf W. Brandt? 15 MR. BRANDT: Yes, I'm here representing and all the 16 information is correct about the Department of the 17 Interior. Thank you. 18 C.O. CAFFREY: Thank you, sir. Byron M. Buck? 19 Mr. Buck is not here today. Virginia Cahill? 20 Good morning. 21 MS. CAHILL: Good morning. The information is 22 correct. I do represent the Rancho Murieta Community 23 Services District, but you might add that I'm also 24 cocounsel for the City of Stockton along with Paul Simmons 25 of De Cuir and Somach. CAPITOL REPORTERS (916) 923-5447 31 1 C.O. CAFFREY: All right, we will do that, 2 Ms. Cahill. Thank you very much. 3 MS. CAHILL: Thank you. 4 C.O. CAFFREY: Matthew R. Campbell? Good morning. 5 MR. CAMPBELL: Good morning. I am Matthew Campbell. 6 I'm representing the California Department of Fish and 7 Game. There is just a typo in your listing. My name is 8 Matthew spelled with two T's. 9 C.O. CAFFREY: All right, thank you, sir. We'll make 10 that correction. Hal Candee? Good morning. 11 MR. CANDEE: Good morning, Mr. Chairman. My name is 12 Hamilton Candee and I am representing the Natural Resources 13 Defense Counsel and the information looks correct. 14 C.O. CAFFREY: Thank you, sir. Ernest A. Conant? 15 I'm also going to apologize in advance for -- if I 16 mispronounce people's names, please, forgive me. And I 17 know you will correct me when you come to the podium. 18 Daniel M. Dooley? Leslie A. Dunsworth -- I'm 19 sorry, is that you Mr. Dunsworth? I know it's not 20 Mr. Dooley, nor is it Mr. Dunsworth, apparently. 21 Mr. Dunsworth is not here at the moment. All right. 22 Steven P. Emrick? 23 MR. EMRICK: Good morning. The information is 24 correct. I represent South San Joaquin Irrigation District 25 as well as the Tri-Dam Project. Mr. O'Laughlin is also CAPITOL REPORTERS (916) 923-5447 32 1 cocounsel for the Tri-Dam Project and a number of us 2 represent the San Joaquin River Authority Group as well. 3 Thank you. 4 C.O. CAFFREY: Thank you, sir. Fred S. Etheridge? 5 MR. ETHERIDGE: Good morning, Chairman Caffrey and 6 Members of the Board. I'm Fred Etheridge Office of the 7 General Counsel of East Bay MUD and the information on your 8 list is correct. Thank you. 9 C.O. CAFFREY: Thank you, sir. Arthur Feinstein? 10 Mr. Feinstein is not here. Warren P. Felger? Sandra T. 11 Flournoy? Lois Flynne? Christopher G. Foster? Good 12 morning. 13 MR. CHESTER: Good morning, your Honor. My name is 14 actually Theodore Chester in place of Christopher Foster 15 representing the area one. 16 C.O. CAFFREY: Theodore Chester? 17 MR. CHESTER: Correct. 18 C.O. CAFFREY: Thank you, sir. 19 MS. WHITNEY: Are you representing area one, or all 20 of his clients? 21 MR. CHESTER: All of those listed on the -- 22 C.O. CAFFREY: The listing is correct, it's just a 23 name correction? 24 MR. CHESTER: That's correct. 25 C.O. CAFFREY: Thank you, sir. Donn W. Furman? CAPITOL REPORTERS (916) 923-5447 33 1 MR. FURMAN: The address needs to be corrected to 2 suite 250, otherwise, it's correct. It's suite 250 rather 3 than 64. Thank you. 4 C.O. CAFFREY: Thank you, sir. Good morning to you. 5 Daniel F. Gallery. 6 MR. GALLERY: Good morning, Mr. Chairman. The 7 information is correct. 8 C.O. CAFFREY: Thank you, Mr. Gallery. Edward G. 9 Giermann? Not here. Arthur F. Godwin? 10 MR. GODWIN: Good morning, Mr. Chairman. The 11 information is correct. Thank you. 12 C.O. CAFFREY: Good morning, sir. Thank you. 13 Richard Golb? 14 MR. GOLB: Good morning, Mr. Chairman, Members of the 15 Board, my name is Richard Golb. I am the Executive 16 Director of Northern California Water Association and your 17 information is correct. 18 C.O. CAFFREY: Thank you, sir. Janet K. Goldsmith? 19 MS. GOLDSMITH: Good morning. 20 C.O. CAFFREY: Good morning. 21 MS. GOLDSMITH: Your information is correct. I'm 22 representing Placer County Water Agency, Saint Supery 23 Vineyards and Winery, the City of West Sacramento. But 24 there's one addition, in place of Simon Granville I'll also 25 be representing Calaveras County Water District. Thank CAPITOL REPORTERS (916) 923-5447 34 1 you. 2 C.O. CAFFREY: All right. Thank you very much, 3 Ms. Goldsmith. We'll make that correction. 4 Thomas J. Graff? 5 MR. SUYEYASU: Good morning, Members of the Board, 6 name is Daniel Suyeyasu. I'm here representing Thomas 7 Graff as well as the Environmental Defense Fund. Tom Graff 8 will be here in later days in the proceedings. The 9 information on this list appears to be correct. Thank you. 10 C.O. CAFFREY: Thank you, sir. Simon Granville? 11 Denslow Green? David J. Guy? Kevin T. Haroff? Alan N. 12 Harvey? Michael Heaton? Don Heffren? John Herrick? Good 13 morning. 14 MR. HERRICK: Good morning, Mr. Chairman and Board 15 Members. The information is correct except the address is 16 70392. 17 C.O. CAFFREY: Post office box 70392? 18 MR. HERRICK: Correct. Thank you very much. 19 C.O. CAFFREY: Thank you, sir. Norman Y. Herring? 20 Michael B. Jackson? Good morning, sir. 21 MR. JACKSON: Good morning, Mr. Chairman. The 22 information needs to be changed to reflect a new address. 23 C.O. CAFFREY: All right, sir. 24 MR. JACKSON: That address is Box 207, Quincy, 25 California, 95971. Other than that it's correct. I do CAPITOL REPORTERS (916) 923-5447 35 1 represent the Regional Council of Rural Counties. 2 C.O. CAFFREY: All right. Thank you, sir. Julie 3 Kelly? Bill Ketscher? Cynthia L. Koehler? 4 C.O. STUBCHAER: She won't be here, but she will send 5 a statement, Mr. Chairman. 6 C.O. CAFFREY: Thank you, Mr. Stubchaer. Robert Lee? 7 Martha H. Lennihan? William P. Lewis? Alan B. Lilly? 8 Good morning, sir. 9 MR. LILLY: Good morning, Mr. Caffrey and Members of 10 the Board. I'm Alan Lilly and the information on the list 11 is correct. 12 C.O. CAFFREY: Thank you, sir. Robert B. Maddow? 13 Good morning. 14 MR. MADDOW: Good morning, Mr. Chairman and Members 15 of the Board. I'm Robert Maddow. I am representing the 16 Contra Costa Water District and the information on your 17 listing is correct. 18 C.O. CAFFREY: Thank you, sir. Don Marciochi? 19 Michael Mason? 20 MR. ROBBINS: Good morning, Mr. Chairman. Ken 21 Robbins appearing on behalf of Michael Mason for San Luis 22 Canal Company. The list does appear to be a correct. 23 We'll be submitting a firm name change, however, pending 24 judicial appointment is finalized. 25 C.O. CAFFREY: All right, sir. Thank you very much. CAPITOL REPORTERS (916) 923-5447 36 1 R.W. McComas? Tim McCllough? Jeffrey -- somebody is 2 getting up. Probably to leave. Jeffrey Meith? 3 MR. SEXTON: Good morning. Michael Sexton on behalf 4 of Jeffrey Meith. The list appears to be correct. 5 C.O. CAFFREY: Thank you, sir. Bradley S. Miller? 6 Paul R. Minasian? Donald B. Mooney? Good morning. 7 MR. HITCHINS: Good morning, Mr. Chair. Andy 8 Hitchins from De Cuir and Somach making appearance for Don 9 Mooney on behalf of El Dorado County Water Agency. Our 10 firm is also representing the City of Stockton as cocounsel 11 with Virginia Cahill. And I'm making an appearance for 12 them as well. Paul Simmons is listed on the index for the 13 City of Stockton. And also I'm making appearance for 14 Glenn/Colusa Irrigation District. David Somach from my 15 firm is listed on the list. And all the information is 16 correct. 17 C.O. CAFFREY: You may have just gone beyond my 18 capacity to remember things. I have an excellent scribe in 19 Mr. Stubchaer. 20 C.O. STUBCHAER: I missed it, too. 21 C.O. CAFFREY: When we get to those names if I call 22 those names out if you'll just stand in the audience raise 23 your hand and remind me. 24 MR. HITCHINS: I will do that. Thank you. 25 C.O. CAFFREY: Thank you, sir. CAPITOL REPORTERS (916) 923-5447 37 1 MR. SEXTON: Excuse me, Mr. Chairman? 2 C.O. CAFFREY: Yes, Mr. Sexton? 3 MR. SEXTON: I was speaking as you spoke for -- 4 called for the firm of Paul Minasian. I'm here 5 also on behalf of Mr. Minasian and the Cordua Irrigation 6 District, M&T Ranch, Inc., Reclamation District 1004, and 7 Solano Irrigation District, the information appears 8 correct. 9 C.O. CAFFREY: Let me just ask a question, 10 Mr. Sexton, are you basically saying that these ladies and 11 gentlemen, if there are, will be attending later, or you're 12 taking over the cases, or whatever participation they had 13 throughout the entirety of the phases? 14 MR. SEXTON: They will be participating in later 15 phases. The members of my law firm, I just happen to be 16 here for everybody today. 17 C.O. CAFFREY: All right. Thank you, sir. Steve 18 Mora? Joel Moskowitz? 19 MR. STEFFEN: Good morning, Mr. Chairman. My name is 20 Scott Steffen. I will be appearing along with 21 Mr. Moskowitz as will Bill Johnston on behalf of Modesto 22 Irrigation District. We will also be cocounsel for the San 23 Joaquin River Group Authority. 24 C.O. STUBCHAER: Spell his last name. 25 C.O. CAFFREY: Would you spell your last name, sir. CAPITOL REPORTERS (916) 923-5447 38 1 MR. STEFFEN: S-T-E-F-F-E-N. 2 C.O. CAFFREY: S-T-E-F-F-E-N? 3 MR. STEFFEN: Correct. And the information appearing 4 there is correct. 5 C.O. CAFFREY: And let me also go back to the 6 gentleman that -- since we're revealing our lack of 7 spelling expertise, I'd like to go back to the gentlemen 8 that was representing Mr. Graff and ask him to spell his 9 last name. I was bluffing when I was acting like I 10 understood. This is your opportunity. We have it here it 11 is S-U-Y-E-Y-A-S-U? 12 MR. SUYEYASU: Yes. 13 C.O. CAFFREY: Thank you, sir. Thank you, too, 14 Mr. Steffen. We are now at Richard H. Moss. Good morning, 15 Mr. Moss. 16 MR. MOSS: Good morning, Mr. Caffrey and Members. 17 Richard Moss appearing for Pacific Gas and Electric 18 Company. And the information is correct. And I might add 19 in the interest of the future we can be reached at 20 PGE.comm. 21 C.O. CAFFREY: All right, sir. We'll get our laptops 22 up here and get to work. Dante John Nomellini? 23 Good morning, Mr. Nomellini. 24 MR. NOMELLINI: Mr. Chairman, Members of the Board, 25 Dante John Nomellini. And the information is correct. And CAPITOL REPORTERS (916) 923-5447 39 1 if I understood correctly you want our opening statements 2 at the beginning of our presentations for our parties? 3 C.O. CAFFREY: That is correct, sir, yes. 4 MR. NOMELLINI: Thank you. 5 C.O. CAFFREY: Michael H. Nordstrom? Kevin M. 6 O'Brien? Mr. O'Brien probably has the longest list of 7 representation. Good morning, sir. 8 MR. ALADJEM: Good morning, Mr. Caffrey and Members 9 of the Board. I'm David Aladjem, A-L-A-D-J-E-M, appearing 10 this morning on behalf of our clients and on behalf of my 11 partner Mr. O'Brien. Both Mr. O'Brien and I will be 12 appearing throughout the hearings. Unfortunately, 13 Mr. O'Brien ruptured his Achilles tendon last week and will 14 not be able to appear in the next week or so. I have 15 several minor corrections in your list. First of all, the 16 third word in our firm name is misspelled. 17 C.O. CAFFREY: All right. 18 MR. ALADJEM: S-E-Y-M-O-U-R. Second, we are no 19 longer representing Premiere Farmland and Partners. 20 C.O. CAFFREY: Say it again. 21 MR. ALADJEM: About two-thirds way down the page. 22 C.O. CAFFREY: Oh, Premiere. Okay. Thank you. 23 MR. ALADJEM: Premiere, we no longer are representing 24 them. Third, we are now representing Murphy Lake Farms. 25 And then there is a spelling error on the last -- on this CAPITOL REPORTERS (916) 923-5447 40 1 next page, "Willey." It is actually Will, W-I-L-L, new 2 word, L-E-E, Land Company. And for the record Will Lee 3 Land Company, William Nicholas Trust, and Murphy Lake Farms 4 are being represented as -- by Pleasant Grove Mutual Water 5 Company. They are landowners within the company. 6 C.O. CAFFREY: All right. Thank you, sir. 7 MR. ALADJEM: Thank you. 8 C.O. CAFFREY: Tim O'Laughlin? Good morning. 9 MR. O'LAUGHLIN: Good morning, Mr. Chairman and Board 10 Members. One correction, two pages back under Tim 11 McCullough you have listed as a party Tri-Dam Power 12 Authority, that's incorrect. Mr. McCullough, I believe, 13 represents Tuolumne Utilities District. 14 In addition to Oakdale Irrigation District, I will 15 be cocounsel and lead counsel for the San Joaquin River 16 Group Authority and its member entities. And I've given 17 you a card of all the entities that comprise the San 18 Joaquin River Group Authority. I also represent Tri-Dam 19 Project and Tri-Dam Power Authority. Thank you. 20 C.O. CAFFREY: All right. Thank you, sir. We will 21 have an updated list later in the hearing. Jenna Olsen? 22 Lynnel Pollock? Patrick Porgans? Diane Rathmann? I know 23 that -- 24 MR. BIRMINGHAM: Mr. Chairman, as indicated earlier 25 I'll be representing the San Luis and Delta Mendota CAPITOL REPORTERS (916) 923-5447 41 1 Authority Water Board in the first phase of this 2 proceeding. The other parties that Ms. Rathmann is listed 3 as representing may be appearing in later phases. The 4 information on the list is correct. 5 C.O. CAFFREY: Thank you, sir. Betsy Reifsnider? 6 Ken Robbins? 7 MR. ROBBINS: I think it says "M." And I am 8 appearing on behalf of the Merced Irrigation District. The 9 information is correct. I'll also be appearing from time 10 to time as cocounsel for the San Joaquin River Group 11 Authority. 12 C.O. CAFFREY: Thank you, sir. Reid W. Roberts? 13 Good morning. 14 MR. R. ROBERTS: Good morning, Mr. Chairman and Board 15 Members. The information is correct. 16 C.O. CAFFREY: Thank you, sir. James F. Roberts? 17 Good morning. 18 MR. ROBERTS: James Roberts representing Metropolitan 19 Water District. The information is correct. 20 C.O. CAFFREY: Thank you, sir. Joe Robinson? Good 21 morning. 22 MR. ROBINSON: Joe Robinson of the Sacramento City 23 Attorney's Office. I will be representing the City of 24 Sacramento in these proceedings. One clarification, I'm 25 also listed on behalf of the Sacramento Area Water Forum, I CAPITOL REPORTERS (916) 923-5447 42 1 anticipate the Water Forum may wish to make a policy 2 statement. However, I don't think our office will be 3 representing them as a party in this proceeding. Thank 4 you. 5 C.O. CAFFREY: Thank you, sir. Richard Ross-Collins? 6 MR. THOMAS: Good morning, Mr. Chairman and Members 7 of the Board, Gregory A. Thomas, Natural Heritage Institute 8 for Mr. Ross-Collins. We will indeed be representing the 9 Tuolumne River Preservation Trust on some of the matters 10 coming before the Board. And the information is correct. 11 C.O. CAFFREY: Thank you, sir. David A. Sandino? 12 MR. SANDINO: Good morning, Mr. Chairman. The 13 information is correct. 14 C.O. CAFFREY: Thank you, sir. Gary W. Sawyers? 15 Good morning. 16 MR. SAWYERS: Good morning, Mr. Chairman. The 17 information you have is correct, but I would also note that 18 I will be acting as cocounsel from time to time for the San 19 Joaquin River Group Authority. In addition, unless they 20 are represented by their individual district counsel the 21 Friant Water Users Authority will also be representing each 22 of its 25 member agencies. 23 C.O. CAFFREY: Thank you, sir. Cliff W. Schulz? 24 Good morning, sir. 25 MR. SCHULZ: Good morning. Cliff Schulz representing CAPITOL REPORTERS (916) 923-5447 43 1 the Kern County Water Agency. The information is correct. 2 C.O. CAFFREY: Thank you, sir. Michael Sexton? 3 MR. SEXTON: Good morning, again, Mr. Chairman. I'm 4 representing the San Joaquin River Exchange Contractors 5 Water Authority, but the water rights are held individually 6 by the member entities, Central California Irrigation 7 District, San Luis Canal Company, Firebaugh Canal Water 8 District, and Columbia Canal Company. And I'll also be 9 appearing from time to time as cocounsel in these 10 proceedings on behalf of the San Joaquin River Group 11 Authority. 12 C.O. CAFFREY: Thank you, sir. Thomas J. Shephard, 13 Sr.? Good morning. 14 MR. SHEPHARD: Good morning, Mr. Chairman and Members 15 of the Board. The information which you have is correct. 16 However, I would like to add that I will be accompanied and 17 am accompanied today by Deanne Watkins, a deputy San 18 Joaquin County Counsel. And one of us will be present 19 through the various phases of the hearing. 20 Secondly, we are representing not only San Joaquin 21 County but also the San Joaquin County Flood Control and 22 Water Conservation District and the Mokelumne River Water 23 and Power Authority, all three of them are governed by the 24 Board of Supervisors of San Joaquin County. 25 C.O. CAFFREY: Thank you, sir. CAPITOL REPORTERS (916) 923-5447 44 1 MS. WHITNEY: Could you spell Ms. Watkins's name? 2 MR. SHEPHARD: Watkins, W-A-T-K-I-N-S. 3 C.O. CAFFREY: Thank you, Mr. Shephard. Paul S. 4 Simmons and I believe you were going to remind us. 5 MR. HITCHINS: Correct. Andy Hitchins on behalf of 6 Paul Simmons making appearance today. Mr. Simmons will be 7 here during later dates of this hearing. And the 8 information is correct. 9 C.O. CAFFREY: And the information is correct, thank 10 you, sir. M. Anthony Soares? 11 MR. SEXTON: Good morning, Mr. Chairman. Michael 12 Sexton on behalf of Mr. Soares. The information is 13 correct. 14 C.O. CAFFREY: Thank you, sir. Steward L. Somach? 15 MR. HITCHINS: Andy Hitchins, again, here for Stuart 16 Somach. He will be here on later days of the hearing. And 17 the information is correct. Thank you. 18 C.O. CAFFREY: Thank you, sir. James Sorensen? Good 19 morning. 20 MR. SORENSEN: Good morning, Mr. Chairman and Members 21 of the Board. The information is correct except for the 22 spelling of "Sorenson." It should be "E-N" at the last. 23 And for educational purposes that makes me Danish. And I 24 will be joined by Stuart C. Adams, Jr., from time to time. 25 C.O. CAFFREY: All right, sir. We apologize for CAPITOL REPORTERS (916) 923-5447 45 1 misspelling your name. On your behalf and on that of 2 Mr. Stubchaer if we want to be technical. We have to have 3 the record straight. Thank you, Mr. Sorensen. William H. 4 Spruance? 5 MR. SEXTON: Michael Sexton on behalf of 6 Mr. Spruance. The information is correct. 7 C.O. CAFFREY: Thank you, sir. Donald F. Stanton? 8 Tom Stokely? Jeffrey J. Swanson? D. Tyler Tharpe? 9 Gregory A. Thomas? 10 MR. THOMAS: Yes, Gregory A. Thomas for the Natural 11 Heritage Institute. The information is correct and may the 12 record reflect that Gloria D. Smith will also be joining in 13 the hearings. 14 C.O. CAFFREY: All right. Thank you, sir. Ernest E. 15 White? Gregory Wilkinson? 16 MR. GARNER: Good morning, Mr. Chairman and Members 17 of the Board, Rick Garner appearing on behalf of 18 Mr. Wilkinson and State Water Contractors. Mr. Wilkinson 19 and I will be representing the contractors throughout these 20 proceedings. And otherwise the information is correct. 21 C.O. CAFFREY: Thank you, sir. Could you spell your 22 last name for us? 23 MR. GARNERG: G-A-R-N-E-R. 24 MEMBER FORSTER: What was his first name? 25 C.O. CAFFREY: Eric Garner. Charles H. Willard? CAPITOL REPORTERS (916) 923-5447 46 1 Christopher Williams? Henry Willy? Good morning, sir. 2 MR. WILLY: Good morning, Mr. Chairman and Board 3 Members. The information is correct. 4 C.O. CAFFREY: Thank you, sir. Jeanne M. Zolezzi? 5 MS. ZOLEZZI: The information is correct. Thank you. 6 C.O. CAFFREY: Thank you, Ms. Zolezzi. Have we 7 missed anybody? 8 MR. CHATIGNY: Good morning, Mr. Chairman. On page 9 three line five, Delta Tributary. As the Chairman I'll be 10 representing them as a group and, of course, individually 11 they will be representing themselves. 12 C.O. CAFFREY: I'm sorry. I just now got to the 13 page. 14 MR. CHATIGNY: Line three -- or page three, line 15 five. 16 C.O. CAFFREY: Where it says "Bill Ketscher"? 17 MR. CHATIGNY: Yes, sir. I'll be representing today 18 and Mr. Ketscher will be in from time to time. And, again, 19 each agency will probably represent themselves 20 individually, but we will have a group presentation at 21 sometime. 22 C.O. CAFFREY: And could you spell your name 23 Mr. Chatigny? 24 MR. CHATIGNY: Yes, I can, C-H-A-T-I-G-N-Y. 25 C.O. CAFFREY: Thank you, sir. Have we missed CAPITOL REPORTERS (916) 923-5447 47 1 anyone? All right. That completes today's attempt at the 2 appearances. We will from time to time go through them 3 again to make sure that we have everybody covered. And I 4 believe Ms. Whitney will be updating this list it would be 5 helpful to the Board itself and perhaps to the audience, 6 too. So that would be very helpful. Thank you. 7 We're just going to take a very short time out, 8 stay seated. I will have a little consultation here with 9 Mr. Stubchaer and Mr. Pettit and Mr. Attwater. Gentlemen. 10 (Off the record from 9:50 a.m. to 9:54 a.m.) 11 C.O. CAFFREY: Let's, please, be seated and resume 12 the hearing. Before I get to the matter at hand I've just 13 been handed a note that the area one landowners aka Y. 14 Steven Pilibos will not be presenting a case in chief. Is 15 that correct? 16 UNIDENTIFIED MAN: In Phase I, that is correct. 17 C.O. CAFFREY: All right, sir. Thank you. 18 MR. GALLERY: Mr. Chairman, may I make a --. 19 THE COURT REPORTER: Your name, please. 20 C.O. CAFFREY: Yes, Mr. Gallery? 21 MR. GALLERY: Yes, on page two on the sixth line it 22 lists the clients I represent and I neglected to mention 23 that with respect to two of those parties, Garden Highway 24 Mutual Water Company and Tudor Mutual Water Company that 25 the Minasian Firm will be appearing with me as cocounsel CAPITOL REPORTERS (916) 923-5447 48 1 with respect to presentations by those two parties. 2 C.O. CAFFREY: All right. Thank you, 3 Mr. Gallery. I appreciate that. I'm going to depart from 4 the order that we announced a moment ago, earlier this 5 morning because a serious matter has arisen, which I, as 6 the Hearing Officer, feel it needs to be dealt with because 7 it goes to the very underpinnings of the entire hearing 8 process throughout the summer and fall. 9 We have received a written motion from 10 Mr. Nomellini in which he raises questions regarding 11 conflict of interest and potential need for recusal of 12 Board Members and staff. And I think that this might be 13 the appropriate time to present that motion by 14 Mr. Nomellini since everything that we do here today and 15 throughout the summer is in question with regard to who 16 shall preside and who shall participate. 17 And, Mr. Nomellini, if you would grace us and come 18 forward, the Board Members have copies of your written 19 motion. Please, if you could summarize it for us. I don't 20 know if all the parties have read it. 21 MR. NOMELLINI: Yeah. 22 C.O. CAFFREY: And then what I hope to do after 23 you've explained your motion then I will ask our counsel to 24 respond. And then I will ask if others in the audience 25 wish to respond as well as. And then we will see if we are CAPITOL REPORTERS (916) 923-5447 49 1 at a point where we can make a ruling. Why don't you 2 proceed, sir. 3 MR. NOMELLINI: Thank you, Mr. Chairman. I'd like to 4 kind of make a general statement first, if I may? 5 C.O. CAFFREY: Go ahead. 6 MR. NOMELLINI: I realize it's like bringing a skunk 7 to the party. However, we have had some history before the 8 Board with regard to how we deal with ex parte 9 communications, what information is available to the 10 parties, and those things. 11 In the course of the aftermath of 95-6, if you 12 remember I raised issues with regard to the ex parte 13 communication before the Board. Basically the Board's 14 attitude was, "This matter is really for the courts. We're 15 not going to look at our own affairs." You tolerated my 16 presentation for a brief period. And off we went to court. 17 When we got to the court, your attorneys -- I 18 don't know who makes the decision, I really have no clue. 19 If I end up out of this proceedings and knows who makes the 20 decision on these things, I'll feel much better. Anyway, 21 we got to court and your attorney said, "Huh-uh, you can't 22 review this Board decision, because the Bureau is not a 23 party and it would be unfair to proceed with regard to the 24 State Board and the Department of Water Resources alone." 25 We went through all the channels. The attorney CAPITOL REPORTERS (916) 923-5447 50 1 maybe have told you, maybe they didn't, but we went to 2 battle, went to the Supreme Court of California, Supreme 3 Court of the United States. Basically they said -- or 4 upheld the lower court judge's decision and threw us out of 5 court. 6 As a part of that proceeding we had asked for 7 discovery and the Attorney General's Office on your behalf 8 opposed that and we were not allowed to do it. The 9 attorneys in the case said our remedy was in Federal Court 10 down in Fresno. We filed there the same kind of action. 11 Your attorneys came in and said, "Huh-uh, you can't sue the 12 State Board and Department of Water Resources in Federal 13 Court. Out." 14 Well, as a part of that action we were allowed to 15 conduct some discovery. In fact, Mr. Chairman, I took your 16 deposition. As a part of that discovery the attorneys 17 representing you objected to the production of certain 18 documents and objected to any questioning with regard to 19 the Water Policy Council. 20 Now, I've seen a lot of the documents and I've 21 been exposed to some of the calendars and I have some 22 testimony that I want to put on the record for you as a 23 part of our case, or if you want to segregate it, I have 24 kind of a mix of questions for Mr. Pettit and Mr. Johns. 25 Some relate to this conflict issue and some relate to the CAPITOL REPORTERS (916) 923-5447 51 1 water issue in 95-6. 2 But the long and the short of it is that we don't 3 know what transpired in the Water Policy Council 4 proceedings. We do know that the Water Policy Council has 5 the Chairman of this Board as a member, Mr. Pettit as a 6 member, and I believe Mr. Stubchaer is a substitute for 7 them. But anyway that came out of some of the depositions 8 as a possibility. 9 Mr. Caffrey, you told me in the depositions that 10 whenever anything got close to a matter that might be 11 before this Board you got out. And with regard to 12 Mr. Pettit, I get the impression he stayed in some of those 13 meetings. I don't know for sure. We weren't allowed to 14 pursue him. 15 What happens is -- and our view may be somewhat 16 paranoid, but anyway you might as well hear it. We in the 17 Delta feel that when we have the State Government and the 18 Federal Government operating water projects for export from 19 the Delta, that there already is a slight tilt to the 20 balance of justice, because the State has got a lot of 21 power and influence and so does the Federal Government. 22 And we as attorneys who practice in the field know that 23 when the Attorney General walks in, when the Department of 24 Justice walks in they get a little more acknowledgement out 25 of the process. Whether they deserve it or not, I don't CAPITOL REPORTERS (916) 923-5447 52 1 know. I think not. But anyway we see it as a tilt. 2 Then we go along and we find the regulatory 3 agency, not only the State Board but EPA, and Fish and Wild 4 Life, Fish and Game, they're all now in Club Fed joined 5 with the Governor's Water Policy Council. And we have the 6 CalFed process, and we have the Delta Accord and all these 7 people signing off on these agreements. And the 8 distinction between water quality planning and water rights 9 is a tough one. 10 I mean there isn't much -- when we start talking 11 about water quality standards that are flows and then who 12 has to provide the flows and what the pumping limitations 13 are, that, to me, is water rights stuff. And I think some 14 of you recognize it as water rights stuff. When we start 15 talking about that, you get out. 16 Well, all of that adds to the burden. And your 17 role is a difficult one, because you have a water quality 18 planning function. You have a water right function. And I 19 think I'm going to show in the presentation of evidence 20 that there's an attempt by your Board, or your staff, or 21 whatever to make a distinction in that, but it isn't really 22 a clear distinction. 23 And if we all adopted the same process where we're 24 going to meet with you guys individually and lobby you and 25 treat you like legislators instead of judges, we can change CAPITOL REPORTERS (916) 923-5447 53 1 the format and it would be fair for all I guess if we do 2 it. But our understanding of the process is that your 3 water rights function is a quasi judicial function that 4 involves the need to be impartial. 5 And when the Governor's Water Policy Council 6 weighs in -- and I call it Governor's Water Policy Council, 7 I guess technically it's really Water Policy Council, you 8 have the most influential person in the State of California 9 potentially weighing in on these issues. Now, I get the 10 feeling he's not weighing in on our side. And I don't know 11 to what he's really weighing in, resources secretary, the 12 communications that go on, but it affects the balance in 13 our view. 14 And we raise these issues, because we think the 15 balance has to be tempered somewhat. We don't expect it to 16 be balanced in our favor, but without seeing the documents 17 and being able to ask questions with regard to what went 18 on, we can't say. 19 So we've made this request primarily because we've 20 been denied access to the Water Policy Council documents 21 that we found went to State Water Resources Control Board, 22 a lot of them went to Pettit. Pettit's practice, and I 23 will demonstrate it later, is to "cc" a couple of you guys, 24 the Chairman, the Vice-Chairman, a lot of those documents 25 just go right through there. Now, whether you look at them CAPITOL REPORTERS (916) 923-5447 54 1 or throw them in the garbage, I don't know. But the 2 documents are there. 3 And I went through them with Mr. Caffrey. I did 4 not question Mr. Stubchaer. I don't take any great 5 pleasure in doing this. In fact, the attorneys on the 6 other side for the exporters kind of laugh at me saying, 7 "Yeah, go ahead and take the deposition of these Board 8 Members." They view it as a favor for them, because I'll 9 make you mad and you'll be more likely to rule against us. 10 I don't know what else to do other than to bring 11 this issue to you. I tried to get it resolved in court. 12 There is a court proceeding still pending. We're waiting 13 for the magistrate's determination as to whether or not 14 your attorneys have to give me a look at three documents 15 that have been withheld that have been identified that 16 involve the Water Policy Council. And also whether or not 17 I'll be able to conduct further depositions on those. I 18 don't know what's going to happen. 19 Anyway here we are. We're off again on these 20 proceedings and I've taken the word of the Chairman to 21 heart. I think it's sincere. And I'm just going to quote 22 from your deposition, Mr. Chairman. "We take it very 23 seriously, and I think that the only thing this Board 24 really has to offer to its parties is fairness and due 25 process. And if we violate that then we are not doing CAPITOL REPORTERS (916) 923-5447 55 1 anybody any good." 2 Now, that is the atmosphere that I think is key 3 here. You are given great deference, you may not realize 4 it, but in the courts and throughout the system the State 5 Board is viewed as a body with unusual expertise in water 6 matters. And you pack with that deference to you, you pack 7 a really serious responsibility. And you're the only shot 8 we really have. We dabble around in courts and screw 9 around in this stuff, but, you know, you guys are the 10 experts. Your decisions pack the weight. And we need a 11 fair shot at it. We have to know what's going on. 12 I don't like the idea of the State Board being a 13 participant in the Water Policy Council. I don't know how 14 you separate those things. I think of you guys as judges. 15 If they respected you, they'd leave you alone. They 16 wouldn't be sending this stuff to you. They wouldn't be 17 dragging you in. But I think there's a lack of 18 understanding of the difference between a legislative 19 process and a judicial process. 20 So, anyway, it's with some regret that I even 21 raise the issue. I would be much happier here, I know 22 there would be more smiles in the room, we could tell a lot 23 more jokes, we'd have a lot better time if I didn't bring 24 this skunk into chambers each time we meet, but I'm still 25 being deprived documents and I don't know how else to CAPITOL REPORTERS (916) 923-5447 56 1 protect my clients' interests. So I somewhat apologize for 2 it, but I do think it's important to put it on the record 3 and bring it before you. 4 C.O. CAFFREY: Thank you, Mr. Nomellini. I, 5 certainly, wanted to give you that opportunity. And I'll 6 just reiterate what you read of my quote and that is that I 7 really do firmly believe that if we're not fair here, we 8 have nothing to offer. And part of my job and part of the 9 job of this Board is to protect you and your rights and not 10 have any bias regardless of what you or anybody else comes 11 in here and says and presents. 12 MR. NOMELLINI: You have control of the attorneys? 13 C.O. CAFFREY: Control is an interesting word. Then 14 let me, I don't want to put words in your mouth, but you 15 didn't actually get to the specific, to the real essence of 16 what your motion is. I assume you are asking -- I'll allow 17 you can -- you succinctly tell us what your motion is, the 18 motion itself? 19 MR. NOMELLINI: Yeah. I made a request of recusal of 20 those Board Members and those staff members that 21 participated in the Water Policy Council, or communications 22 with the Water Policy Council that relate to water 23 allocations. Water allocations in my view involves export 24 limitations, the sources of release of the water, those 25 kinds of things. And I asked that be done not knowing to CAPITOL REPORTERS (916) 923-5447 57 1 what extent there's really that information. 2 I want to elicit through some examination of 3 Mr. Pettit, I want to ask some questions, I don't know 4 whether you're going to let him answer them or not, but I 5 wanted to do that on the record. I can do that as part of 6 the case in chief, or I can do it now. It's up to what the 7 Chairman wants to do. But I want to bring before you what 8 I learned in case you don't know what your procedures are 9 to the extent they exist with regard to ex parte 10 communications and the views of your staff. 11 C.O. CAFFREY: Thank you, Mr. Nomellini. I think it 12 is our judgment at this point that we will have you proceed 13 with your case in chief when we get to that point. You 14 have subpoenaed and we have issued the subpoenas 15 for Mr. Johns and Mr. Pettit and you can ask them at that 16 time. 17 After we hear from Ms. Leidigh and any of the 18 other representatives, if they wish to comment, I will 19 attempt a ruling with regard to myself, of course, a 20 decision on recusal. And then I will ask the other Board 21 Members what they wish to do for themselves. But I want 22 for the record a reading of the law, or an explanation of 23 the law. And then as I said before when you do your case 24 in chief you can do what you have to do which is what you 25 feel is relevant and which we feel is relevant. We'll go CAPITOL REPORTERS (916) 923-5447 58 1 as far with it as is fair. And with that then, sir, we 2 appreciate your presentation. 3 MR. NOMELLINI: All right. Thank you for the 4 opportunity and sorry that I have to bring the matter 5 before you. 6 C.O. CAFFREY: It's not a question in my mind of 7 having to be sorry. It's a question of law and procedure. 8 And we will proceed as appropriate. 9 Ms. Leidigh, could you give an explanation to the 10 Board and the audience as to the law with regard to ex 11 parte communication, conflict of interest, and recusal? 12 MS. LEIDIGH: Okay. I will try to do that. I have a 13 number of points. I'll try to keep it as brief as 14 possible, but it's probably going to take a little while. 15 First of all -- 16 C.O. CAFFREY: Excuse me, Barbara, I think there's 17 some indications that they can't hear you very well in the 18 back. 19 MR. PETTIT: Yeah, speak into the mic. 20 C.O. CAFFREY: You have to put the mic real close. 21 MS. LEIDIGH: Is this one working? 22 C.O. CAFFREY: Not very well. 23 MEMBER BROWN: Go to the podium then. 24 C.O. CAFFREY: Yeah, why don't you go to the podium, 25 Barbara. CAPITOL REPORTERS (916) 923-5447 59 1 MS. LEIDIGH: Yeah. 2 C.O. CAFFREY: Thank you, Mr. Brown. 3 MS. LEIDIGH: Okay. I think I'm ready now. There 4 are a number of laws that apply when an issue of recusal 5 comes up, or as it's called in the Administrative 6 Procedures Act, "disqualification." Administrative 7 Procedures Act, which went into effect in July of 1997, has 8 a number of provisions that apply. Government Code Section 9 11425.40 that section provides that a person having the 10 power to hearing or to decide in a proceeding may be 11 disqualified if that person has a bias, a prejudice, or an 12 interest in the proceeding. 13 Only the Board Members have the power to hear or 14 decide issues in this proceeding. Consequently, only the 15 Board Members may be disqualified under this provision of 16 the Administrative Procedures Act. Staff is not subject to 17 disqualification. And there is some case law on the point. 18 It's Federal case law, but I think its -- it's -- it 19 carries some weight and that is the case of Porter County 20 Chapter of the Izaak Walton League versus Nuclear 21 Regulatory Commission decided in 1979 at 606 Fed. 2d 1363 22 page 1371. 23 Mr. Nomellini's motion is based on the 24 unsupported, at this point, assumption that there has been 25 ex parte communication on matters that are at issue in this CAPITOL REPORTERS (916) 923-5447 60 1 hearing between the Members of the State Water Resources 2 Control Board and the Governor's Water Policy Council and 3 that such communication has caused a bias or prejudice. 4 When Mr. Nomellini alleged that there were many 5 documents that have gone back and forth between the Board 6 and the Governor's Water Policy Council, I think he's 7 speculating. There is one document that is before the 8 magistrate in Federal Court in Fresno which has not been 9 disclosed to Mr. Nomellini. There is another one that he 10 has seen, which we've not answered questions about, but 11 those were both long before this proceeding started. 12 Okay. The Administrative Procedures Act at 13 Government Code Section 11430.10 provides that there shall 14 be no communication, direct or indirect, regarding any 15 issue in the proceeding to the presiding officer from a 16 party outside the agency without notice and opportunity for 17 all parties to participate in the communication with one 18 major exception. And that is for noncontroversial 19 procedural matters. 20 In other words, a Board Member or a member of the 21 staff who communicates with Board Members can answer 22 questions, tell people what the procedures are, what the 23 hearing schedule is, and so on like that as long as it's a 24 noncontroversial type of matter, noncontroversial 25 procedural matter, not a prohibited ex parte communication. CAPITOL REPORTERS (916) 923-5447 61 1 Then the Board Member must disclose the communication and 2 put it into the hearing record pursuant to Government Code 3 Section 11430.50 has been put into the hearing record. A 4 party wishing to do so then shall be allowed to comment on 5 the communication and the presiding officer has discretion 6 to allow the party to present evidence concerning the 7 subject of the communication. 8 If a Board Member receives a prohibited ex parte 9 communication there may, in some cases where it causes 10 prejudice or bias, there may be grounds for 11 disqualification. The reference for this is Government 12 Code Section 11430.60. If the Board Member is disqualified 13 the portion of the record pertaining to the ex parte 14 communication may be sealed by the protective order of the 15 disqualified Board Member. Of course, this is 16 discretionary. And before deciding on either a 17 disqualification, or a sealing of a record it should be 18 considered whether having the communication in the record 19 would bias the proceeding, or cause the Board Member to 20 make a decision that would not be made in the absence of 21 such communication. 22 There is a presumption of honesty and integrity in 23 those persons serving as an adjudicator and that 24 presumption may be overcome in order for there to be a 25 disqualification for other actions taken. And citation for CAPITOL REPORTERS (916) 923-5447 62 1 that is, again, Porter County Chapter Izaak Walton League 2 case and also the Withrow versus Larkin. Cite is 421 U.S. 3 and the pertinent language is at page 47 of that opinion. 4 As I stated earlier, Mr. Nomellini has not alleged any 5 facts in his motion that if those facts were true would 6 indicate a bias or a prejudice. 7 So at this time what I would suggest is that each 8 Board Member think about whether during pendency of this 9 current proceeding, in other words, since the original 10 hearing notice was released in December of 1997 the Board 11 Member has received any ex parte communication from the 12 Water Policy Council regarding any matter of substance or 13 in controversy. 14 This does not include noncontroversial procedural 15 questions asked about the Board's hearing schedule, or 16 other procedural matters that are not in controversy. If 17 the Board Member has anything to disclose that is not in 18 the Board's files and is not subject to a privilege it 19 should be provided for the record. 20 I note that communications between the Governor's 21 Office and State agencies are subject to the deliberative 22 privilege process and cannot be disclosed by the Board. So 23 there is an exception there. Each Board Member should 24 decide whether they're aware of any reason why the Board 25 Member's biased or prejudice with respect to the issues in CAPITOL REPORTERS (916) 923-5447 63 1 this hearing. 2 And I would also like to point out that even if it 3 is -- it were found to be true that the Water Policy 4 Council, or its members were biased, they are separate from 5 the Board. And that does not mean that the Board itself is 6 bias. That is not imputed automatically to the Board. 7 And there's a more recent case that I would cite 8 for that, which is United States versus State of Oregon, 44 9 Fed. 3rd, page 758 with the Jones cites being at page 772. 10 This was decided in 1994 by the Ninth Circuit Court of 11 Appeals. And in that case there was an allegation of bias 12 by the State basically claiming one state agency could not 13 participate because another state agency was alleged to 14 have been biased. And the court said that the state agency 15 that was supposed to make the decision could still do the 16 decision making in that case. 17 That's all I have for now. If you have any 18 questions I'll be happy to answer them, or I can answer 19 more questions later. 20 C.O. CAFFREY: All right. Thank you very much, 21 Ms. Leidigh. I think what I'll do is ask if any of the 22 counsels, representatives in the audience here today have 23 any comments that they would like to make with regard to 24 this motion. Anything from anybody in the audience on this 25 matter? CAPITOL REPORTERS (916) 923-5447 64 1 Mr. Herrick, you wish to comment? 2 MR. HERRICK: Yes. John Herrick, South Delta Water 3 Agency. I would just like to stress that our last 4 experience here resulted in no judicial review. So we're 5 very concerned. We're not accusing anybody of anything, 6 but we're very concerned when the players in the State of 7 California for water matters get together and make an 8 agreement excluding the Delta people and Stanislaus Slough 9 people as has happened with the Delta Accord. We're very 10 concerned how that happens. 11 And then through the various proceedings we see 12 communications which we can't see go back and forth to -- 13 back to the State Board on which raises a very serious 14 issue. So as you decide what you're going to do today I 15 would encourage you to temper that decision, or your 16 decision should be in light of the fact that what you 17 decide may never be reviewable. And that's very scary to 18 us. We'd like to think that the existing procedures allows 19 us to go through everything. And if we do not get recourse 20 in one thing, but we do get to go to court -- but our 21 recent history is we don't get to go to court. We don't 22 know what's going on before the deal is cut. We're very, 23 very scared. So those are my comments. Thank you very 24 much. 25 C.O. CAFFREY: Thank you, Mr. Herrick, for your CAPITOL REPORTERS (916) 923-5447 65 1 comments. Anyone else in the audience on this matter? 2 Mr. Birmingham. 3 MR. BIRMINGHAM: Thank you, Mr. Chairman. 4 Mr. Herrick has just stated that they presumably are the 5 moving parties, are the parties making the request are not 6 accusing anyone of anything. If that's the case there's 7 simply no basis for the request that a Board Member recuse 8 themselves. What Mr. Nomellini described is a very 9 complicated planning of water rights processes. The two 10 functions are separate. And that was discussed at length 11 in the First District Court of Appeals decision commonly 12 referred to as the Racanelli Decision. 13 What Mr. Nomellini articulated was a very good 14 argument that could be presented to the Legislature as to 15 why the water quality planning process should be divorced, 16 or separated from the water rights process. But the system 17 we have has related the two. And if nobody is being 18 accused of anything, then there's simply no basis for the 19 request. And Westlands' Water District and the Authority 20 oppose the request. 21 C.O. CAFFREY: All right. Thank you, sir. No one 22 else responding? Then I will rule on Mr. Nomellini's 23 motion with regard to myself. 24 For myself this is not only a matter of law, but 25 it is a matter of conscious. And I now state that based on CAPITOL REPORTERS (916) 923-5447 66 1 my understanding of the law and my own deport and 2 comportment throughout the years that I've been on this 3 Board, I will state now that I will not recuse myself in 4 good conscious. And that is for me and myself that 5 statement. 6 And I will now turn to the other Board Members and 7 provide them with the opportunity to recuse themselves 8 based on what they've heard here this morning, their 9 understanding of the law as explained by Ms. Leidigh. 10 Do any of the other Board Members feel a need to 11 make a statement, or recuse themselves? Mr. Stubchaer? 12 C.O. STUBCHAER: Mr. Chairman, one of the things I 13 dislike about this job is the ex parte rule which keeps me 14 from having contact with my old water buffalo buddies, we 15 have been virtually isolated. And, in fact, sometimes 16 we're shunned because people do not want to influence us. 17 I want to state for the record I have never been 18 approached by anyone in the administration or the public 19 outside the hearing record trying to influence my decision 20 on a water rights matter, or water quality matter that has 21 come before this Board. And I don't want to recuse myself, 22 because there's nothing I should recuse myself for. 23 C.O. CAFFREY: Thank you very much, Mr. Stubchaer. 24 Do any of the other Board Members wish to make a statement, 25 or wish to recuse themselves? CAPITOL REPORTERS (916) 923-5447 67 1 MEMBER BROWN: No, sir. 2 MEMBER FORSTER: I'd like to say something for the 3 record. 4 C.O. CAFFREY: Please, Ms. Forster. 5 MEMBER FORSTER: I echo what Mr. Stubchaer said. The 6 same goes for myself, personally. And it's lonely being on 7 the Board, because we're very, very strict on our ex parte 8 rule. And no one has ever influenced myself or asked 9 anything of me. The same as articulated by Mr. Stubchaer, 10 we get wonderful guidance from our Chief Counsel on our 11 activities. And we are very, very dedicated to that. And 12 there is no reason to recuse ourselves on this. 13 C.O. CAFFREY: I would simply add that I was not 14 going to make any statement other than just the reference 15 to the law, but since the other Board Members have done so 16 I want to also say something similar to what Mr. Stubchaer 17 said, since we're going on the record. 18 I have never, ever been asked by any member of the 19 administration, or any party for that matter to take any 20 action, or have any discussion about anything regarding the 21 merits of anything that we're doing in the water rights 22 allocation in the State of California. 23 Frankly, what we're doing is so complicated I 24 doubt that anybody who might ask such a question even knows 25 what to ask, or even has an opinion as to who should CAPITOL REPORTERS (916) 923-5447 68 1 provide in what ratio or what allocation the waters 2 necessary to meet the Delta standards. I'm convinced of 3 that. As a matter of fact, if somebody ever walked up to 4 me and said they know the answer, I would walk away from 5 them immediately, because that is probably part of the 6 psychotic episode. 7 This is an extremely complicated subject. And I 8 mean no disrespect to Mr. Nomellini. I value his 9 friendship outside of this hearing room, and I understand 10 that he is doing his job as he sees best. And I want him 11 to understand that we're glad that he did what he did this 12 morning, because it's his right to do it. And I think it's 13 important that we run a fair process. But I will not -- I 14 was about to say that none of the Board Members have 15 recused themselves, Mr. Brown just raised his finger for 16 me. So, Mr. Brown, before I make that statement I better 17 hear from you, sir. 18 MEMBER BROWN: Since everyone else has gone on the 19 record I think it's proper that I do also. I have no 20 reason to recuse myself from this hearing, Mr. Chairman. 21 C.O. CAFFREY: Thank you, Mr. Brown. And, 22 Mr. Nomellini, when we get to your case in chief we will 23 allow you with the same fervor to present your case. So 24 with that, then, we have ruled on the motion. 25 Mr. Nomellini, with that we have ruled on your CAPITOL REPORTERS (916) 923-5447 69 1 motion. You have presented it. It is in the record. We 2 have stated that we will not recuse ourselves and we will 3 now go on. And Mr. Stubchaer reminds me that this is 4 probably as good a time as any for a break. Why don't we 5 take -- Mr. Stubchaer is very precise. He wrote part of 6 the hearing notice. It says, "12 minutes for break." 7 C.O. STUBCHAER: I didn't, that was Ms. Leidigh. 8 Let's take a 12 to 13-minute break and come back. 9 (Recess taken from 10:30 a.m. to 10:47 a.m.) 10 C.O. CAFFREY: All right. We are back on the record. 11 Thank you for your patience. We'll now ask 12 Ms. Leidigh to take care of a few procedural matters for us 13 before we go to policy statements. 14 Ms. Leidigh. 15 MS. LEIDIGH: Thank you. The procedural matters I 16 have to cover are, first, the Board's Division of Water 17 Rights served copies of the Notice of Hearing on the 18 parties listed in Enclosure 2(a), (b), and (c) of the 19 notice and sent copies to the other interested parties -- 20 C.O. CAFFREY: Can you hear, Ms. Leidigh, in the back 21 of the room? 22 THE AUDIENCE: No. 23 MEMBER BROWN: You have to speak up, Barbara. 24 C.O. CAFFREY: You have to speak up, Barbara. 25 MS. LEIDIGH: Yeah, or I'll just yell. The Board's CAPITOL REPORTERS (916) 923-5447 70 1 Division of Water Rights served copies of the Notice of 2 Hearing on the parties listed in Enclosure 2(a), (b), and 3 (c) of the notice and also sent copies to the other 4 interested parties all in accordance with the provisions of 5 Government Code Section 11440.20. A record of the service 6 of the notice is in the files in the Division of Water 7 Rights for this hearing. Only one of the notices sent to 8 parties listed in the Enclosure 2 was returned undelivered. 9 Next I will offer in evidence by reference the 10 documents listed in the staff exhibits. The list of staff 11 exhibits was mailed to the parties on May 20th, 1998. The 12 staff exhibits are numbered from 1 through 182. Additional 13 copies of the list of staff exhibits are available from the 14 staff. If no party has an objection I will dispense with 15 reading the list of staff exhibits into the hearing record. 16 Are there any objections? I hear no objection. 17 Consequently, I will make sure that the Court Reporter has 18 a copy of the list of staff exhibits. At this time I offer 19 in evidence, by reference, the documents that are listed in 20 the staff exhibits. Are they accepted? 21 C.O. CAFFREY: Without objection the Board will 22 accept the exhibits. 23 MR. LILLY: Excuse me, Mr. Caffrey? 24 C.O. CAFFREY: Yes, Mr. Lilly. 25 MR. LILLY: Yes, Alan Lilly for the record, I entered CAPITOL REPORTERS (916) 923-5447 71 1 my appearance before. We don't object to Ms. Leidigh 2 reading the list, of course, but we do object to the 3 exhibits coming in for all purposes. Obviously, many of 4 those documents contain hearsay. And we just want to have 5 it clarified that they're admitted to the record, but will 6 be used by the Board subject to the limitations on the use 7 of hearsay evidence by the Board in this proceeding. 8 C.O. CAFFREY: Well, the Board always proceeds 9 according to the rules of how it should apply the weight of 10 evidence. 11 MR. LILLY: Thank you for that clarification. 12 C.O. CAFFREY: I assure you that will be the case, 13 Mr. Lilly. 14 MS. LEIDIGH: Okay. I have one more. 15 C.O. CAFFREY: With that then the exhibits are 16 accepted. Anything else, Ms. Leidigh? 17 MS. LEIDIGH: Yes. I have one more item and that is 18 that I would like to point out that a Court Reporter is 19 present and will make a transcript of the hearing. Any 20 party who wants a copy of the hearing transcript must make 21 separate arrangements with the Court Reporter. That's all 22 I have. 23 C.O. CAFFREY: All right. Thank you, Ms. Leidigh. 24 Time out for a brief consultation with Mr. Stubchaer. 25 (Off the record.) CAPITOL REPORTERS (916) 923-5447 72 1 C.O. CAFFREY: All right. We're back on the record. 2 This is the time now for general policy statements. 3 There's a five-minute limitation on those. As we 4 understand our records correctly we just have one card for 5 general policy statements and that's from Steve Hall 6 Executive Director of the Association of California Water 7 Agencies. Is Mr. Hall here? 8 UNIDENTIFIED WOMAN: He's not here. I put a call in 9 to him. If you can leave a spot open for him, if that's 10 possible? 11 C.O. CAFFREY: I believe we can do that. We'll just 12 interrupt the proceedings when he gets here and try to 13 accommodate him for five minutes. 14 UNIDENTIFIED WOMAN: Okay. Thank you. 15 C.O. CAFFREY: Thank you. There are no other 16 requests for general policy statements. We also have a 17 group of opening statement cards. Some of these are marked 18 "general." Some of them are marked for a number of phases, 19 I don't want to get overly technical, but is there anybody 20 who would actually classify their opening statement as more 21 of a policy statement, because we could take that now 22 before administering the oath? 23 MR. HALL: I would classify my statement that way. 24 C.O. CAFFREY: I noticed that you had arrived, 25 Mr. Hall. While the rest of the audience is ruminating on CAPITOL REPORTERS (916) 923-5447 73 1 my question, why don't you grace us with your policy 2 statement. 3 POLICY STATEMENT 4 ASSOCIATION OF THE CALIFORNIA WATER AGENCIES 5 ---oOo--- 6 MR. HALL: Appreciate the benefit of the doubt there, 7 Mr. Chairman. Thank you, Mr. Chairman, Members of the 8 Board. Good morning. 9 C.O. CAFFREY: Good morning. 10 MR. HALL: First I congratulate you and give you my 11 condolences for the proceeding which you are now 12 undertaking and seriously the Board is to be commended for 13 thinking outside the box, to paraphrase a clique, in that 14 the temptation must be strong by the Board and the staff to 15 proceed as boards have always proceeded in this sort of 16 situation, and that is to move forward with a standard 17 water rights process which pits the parties against one 18 another, and attempts to somehow adjudicate responsibility. 19 I think what -- what the Board has allowed to take 20 place has been exceedingly important, because rather than 21 an adversarial process, you have an genuine coming together 22 of the parties most directly involved to see if some 23 resolution can be had that will satisfy all the parties and 24 which the Board, after full staff review, can pass judgment 25 on and hopefully it will. CAPITOL REPORTERS (916) 923-5447 74 1 The last time I was here a couple months ago I 2 urged the Board to allow this process to continue. I'm 3 here to repeat that statement. I think the Board needs to 4 allow this process to unfold. You have a process that you 5 have laid out that is, I think, an orderly process which 6 allows all of the parties, both those directly and 7 indirectly involved, to have their day in court so to 8 speak. But at the end of the time my hope is that the 9 Board will extend the period under which these agreements 10 can come together. 11 I acknowledged the last time I was here that this 12 is not pretty to watch. And I use the analogy of democracy 13 and how it's not very good, it's just better than 14 everything else. And I would repeat that analogy. This is 15 better than any of the alternatives that anybody could 16 think of. And so AQUA on behalf of it's 440 members is 17 urging the Board to allow time to hammer out the agreements 18 among the negotiating parties to ensure full implementation 19 of the interim order WR 95-6. And for that reason AQUA 20 supports extending the effective period of Order 95-6 21 through March 1, 1999. 22 There are people who will question, "Can the 23 negotiating parties reach agreement?" To those parties I 24 would say unequivocally, I don't know. And neither does 25 anybody else. But the trend is in the right direction. CAPITOL REPORTERS (916) 923-5447 75 1 The San Joaquin parties, those most directly involved, have 2 reached substantial agreement on the San Joaquin side. 3 I know for a fact that the parties on the 4 Sacramento side have not reached agreement in all cases. 5 Not all of the tributaries on the main stem have reached 6 full agreement. But, again, the trend is in the right 7 direction. Many of the principles are meeting tomorrow to 8 continue their negotiating sessions to see if they can make 9 progress. And thus far though the progress has been 10 uneven, the trend is all in the right direction. They're 11 getting closer and closer to agreements that not only they 12 can agree to, but which will meet, in my view, will meet 13 the test that the Board has to set for whether these 14 agreements allow the Board to fulfill its responsibilities 15 within State Government. 16 We believe that the two major projects and their 17 customers have stated and restated their willingness to 18 accept full responsibility for meeting standards for a 19 reasonable period of time so long as progress is being 20 made. And they're the ones most directly involved in the 21 negotiations. And they tell me consistently that progress 22 is being made. On that basis and on the basis that the 23 alternative is years of hearings followed by even a longer 24 period of time when the parties would likely be in court, 25 because good as you are I don't think you would be able to CAPITOL REPORTERS (916) 923-5447 76 1 satisfy everybody sufficiently that they'll stay out of 2 court, one has to only compare those two alternatives to 3 conclude that the Board should allow this process to 4 continue so long as progress is being made and so long as 5 it's within a reasonable period of time. 6 And with that I'll conclude my statement. Wipe my 7 brow that got sweaty on my way over. 8 C.O. STUBCHAER: What timing. 9 C.O. CAFFREY: Perfect timing. 10 MR. HALL: We try. 11 C.O. CAFFREY: Thank you very much. 12 MR. HALL: Thank you. 13 C.O. CAFFREY: We appreciate your taking the time to 14 be here to give us your policy statement. We have a number 15 of opening statements that are not specific to Phase I. We 16 tried to slice and dice this thing with great precision, 17 and many of these opening statement cards identify a number 18 of phases in which parties may participate. And since some 19 of these parties may be individuals that will be presenting 20 cases in chief eventually and are not just making 21 themselves available for cross-examination. 22 It's probably wiser and easier to just administer 23 the oath at this point rather than to get so specific as to 24 administer it when we get to the actual opening statements 25 for cases in chief exclusively. CAPITOL REPORTERS (916) 923-5447 77 1 So, if all those who will be participating in this 2 hearing, the evidentiary portion, will stand and take the 3 oath I will now administer the oath and affirmation. 4 Do you promise to tell the truth in these 5 proceedings? 6 THE AUDIENCE: Yes. 7 C.O. CAFFREY: Thank you. Please be seated. 8 Mr. Stubchaer reminded me that attorneys are not required 9 to take the oath. And I was very differential to all of 10 you that are members of the Bar by saying, "They know 11 that." 12 Okay. Let me read the names of those wishing to 13 make opening statements in the order that I have them. 14 They are Allan Short, Theodore Chester, Frederick Bold, 15 Matthew Campbell, John Coburn, Michael Jackson, Robert 16 Maddow, David Santino, Alf Brandt, and Tim O'Laughlin. And 17 those will be followed by the only card we have for an 18 opening statement from a Phase I case in chief presenter, 19 Jeanne Zolezzi. With that, then, let us begin with 20 Mr. Short. Is he here? 21 MR. O'LAUGHLIN: Mr. Chairman, Tim O'Laughlin. 22 Mr. Short is on his way here. He will be making an opening 23 statement in regard to Phase I. If he doesn't get here in 24 time to give an opening statement in regard to Phase I, I 25 will give that opening statement on behalf of the San CAPITOL REPORTERS (916) 923-5447 78 1 Joaquin River Group Authority. 2 C.O. CAFFREY: Okay. We will treat that as a Phase I 3 opening statement. Theodore Chester. 4 MR. CHESTER: Mr. Chairman, that card was intended to 5 indicate an opening statement only at the time of Phases 6 VII and VIII, so I'm not prepared to give an opening 7 statement at this time. 8 C.O. CAFFREY: All right, sir. Frederick Bold. 9 OPENING STATEMENT 10 CITY OF ANTIOCH, CITY OF PITTSBURG AND 11 DIABLO WATER DISTRICT 12 ---oOo--- 13 MR. BOLD: Yes. Mr. Chairman and Members of the 14 Board, I represent the City of Antioch, City of Pittsburg, 15 and Diablo Water District and virtually all the territory 16 of these three entities is within the Delta. And we have 17 only one matter, one issue, one point to present to the 18 Board at this hearing. And that is the implementation of 19 the Delta Protection Act to make sure that these entities 20 receive at all times from the Bureau or the State their 21 right to purchase whatever quantities of water they may 22 require for reasonable and beneficial uses. 23 Now, our presentation will be brief. We will only 24 have one witness. And that we expect it will be -- our 25 testimony will be received and cross-examination completed CAPITOL REPORTERS (916) 923-5447 79 1 in, certainly, less than a hour. Now, we have had some 2 difficulty in the notice of determining which is the 3 appropriate phase for us to appear. We've consulted with 4 Ms. Leidigh and Ms. Whitney and have come to the conclusion 5 that the implementation of the Delta Protection Act could 6 indirectly have some very minor effects on the power of the 7 Bureau to meet Delta outflows. And, accordingly, with your 8 permission, Mr. Chairman and Members of the Board, we will 9 present all our evidence in Phase II. Thank you. 10 C.O. CAFFREY: All right. Thank you, Mr. Bold. We 11 look forward to seeing you then if not sooner. 12 Let's see, Matthew Campbell, you have marked your 13 card Phase I. Are you part of Phase I case in chief? 14 MR. CAMPBELL: No, I'm not. 15 C.O. CAFFREY: All right. 16 OPENING STATEMENT 17 DEPARTMENT OF FISH AND GAME 18 ---oOo--- 19 MR. CAMPBELL: Good morning, Mr. Chairman, Members of 20 the Board, my name is Matthew R. Campbell, I'm a Deputy 21 Attorney General. I represent the Department of Fish and 22 Game in this matter. I would like to provide you with an 23 opening statement regarding Phase I. The Department of 24 Fish and Game supports an extension of Order 95-6, because 25 it would provide for continuing implementation of the 1995 CAPITOL REPORTERS (916) 923-5447 80 1 Bay-Delta Plan protections pending a final decision by the 2 Board in these proceedings. 3 As I just indicated, the Department of Fish and 4 Game will not be submitting any testimony or other evidence 5 regarding this issue during Phase I. However, I would like 6 to point out that the Department of Fish and Game intends 7 to provide testimony and other evidence in subsequent 8 phases of this hearing on several elements addressed in 9 Order 95-6. 10 For example, Order 95-6 has several provisions 11 regarding the Suisun Marsh. For example, Order 95-6 12 directed the permittees to work with other interested 13 groups and governmental agencies to review the Suisun Marsh 14 water quality standards implementation dates and other 15 agencies's responsibilities to help meet the standards. 16 The Suisun Ecological Work Group, or SEW, has 17 engaged in that task. Although SEW is not yet issued its 18 final report on that review, the Board was advised of 19 progress of SEW at the April 1998 workshop for these 20 hearings. SEW is expected to issue its recommendations at 21 the next tri-annual review of the Bay-Delta Plan 22 objectives. 23 As the Department of Fish and Game also indicated at 24 the workshop, it supports amendment three of the Suisun 25 Marsh Preservation Agreement and will testify to that CAPITOL REPORTERS (916) 923-5447 81 1 effect during Phase III later this summer. Following 2 Phase III if the Board has not issued a new order directly 3 dealing with the Suisun Marsh, prior to the expiration of 4 Order 95-6 on December 31st, 1998, the Department of Fish 5 and Game would support a modification of Table B of Order 6 95-6 if it is to be extended to change the two compliance 7 stations in the west and northwest marsh labeled S-35 and 8 S-97 from compliance stations to monitoring stations. 9 In addition, Order 95-6 authorizes, with specific 10 conditions, use of joint points of diversion in the South 11 Delta for the State Water Project and the Central Valley 12 Project. The Department of Fish and Game would support a 13 short-term continuation of this authorization under the 14 same conditions. 15 It is also the Department of Fish and Game's 16 intent to provide testimony to the Board during Phase VI of 17 these hearings regarding the petition of the United States 18 Bureau of Reclamation and the State Department of Water 19 Resources for changes in points of diversion under CVP and 20 SWP permits, and to recommend conditions under which the 21 Bureau of Reclamation and the Department of Water 22 Resources' petition should be approved. 23 The Department of Fish and Game would also like to 24 note at this time that continued implementation of Order 25 95-6 may be affected by any future listings of impacted CAPITOL REPORTERS (916) 923-5447 82 1 species under the State and Federal Endangered Species Act. 2 In conclusion, the Department of Fish and Game 3 recommends that if necessary an extension of Order 95-6 be 4 limited to a period of one year and that the Board proceed 5 expeditiously to complete all phases of these hearings and 6 to reach a final decision regarding implementation of the 7 Bay-Delta Plan within that time frame. Thank you. 8 C.O. CAFFREY: Thank you, Mr. Campbell. John Coburn, 9 opening statement. Good morning, sir, welcome. 10 OPENING STATEMENT 11 STATE WATER CONTRACTORS 12 ---oOo--- 13 MR. COBURN: Good morning, Mr. Chairman, Members of 14 the Board and staff. My name is John Coburn. I'm the 15 Assistant General Manager of the State Water Contractors. 16 The spelling of my last name is C-O-B-U-R-N. I have a 17 short opening statement. It addresses the general hearing 18 and Phase I. 19 State Water Contractors will appear and present 20 testimony as necessary in the upcoming Board hearing, water 21 rights hearings. We will not present testimony in this 22 first phase which covers the extension of Order 95-6. 23 However, the State Water Contractors join the Department of 24 Water Resources in urging the Board to extend Order 95-6. 25 Each of the State Water Contractor member agencies CAPITOL REPORTERS (916) 923-5447 83 1 is reliant to one extent or another on State Water Project 2 supplies to meet their current and future water supply 3 needs. For this reason the State Water Contractors and 4 several of its individual member agencies who were 5 signatories to the Bay-Delta Accord are participating 6 extensively in the CalFed process and are attempting to 7 negotiate water rights settlements with a range of upstream 8 water users all aimed at a comprehensive resolution of the 9 Bay-Delta issues. 10 The State Water Contractors believe these 11 processes are the best hope for a long-term solution that 12 will protect the Bay-Delta ecosystem as a necessary 13 foundation to providing water supply reliability and 14 quality to the 20 million Californians and one million 15 acres of irrigated agriculture served by the State Water 16 Project. However, these processes are very complex and 17 will not be completed within the next few months. 18 A mechanism must be in place to stabilize both the 19 ecosystem and the water supplies available to the State 20 Water Contractor member agencies. The Board's Order 95-6 21 along with the Bay-Delta Accord currently provides that 22 stability. Based on the Order and the Accord, the State 23 Water Project and the Central Valley Project are 24 voluntarily implementing the Board's flow and operational 25 requirements to provide baseline protection to the CAPITOL REPORTERS (916) 923-5447 84 1 environment. 2 In return, the projects and the contractors are 3 sufficiently -- provide -- receive sufficient regulatory 4 certainty to allow them to plan for and meet the needs of 5 the short-term water supplies. The State Water Contractors 6 believe that protections provided to both the environment 7 and the water-using public by Order 95-6 and the Accord 8 must be continued for an adequate period of time to allow 9 CalFed and the water rights settlement process to be 10 successful. Consequently, the State Water Contractors 11 believe that 95-6 should be extended for an additional year 12 until 19 -- December 31st, 1999. Thank you. 13 C.O. CAFFREY: All right. Thank you, Mr. Coburn. 14 Michael Jackson. Just to remind the audience, these are 15 opening statements of parties not presenting cases in chief 16 in Phase I. 17 MR. JACKSON: That's correct. 18 C.O. CAFFREY: Mr. Jackson, good morning, sir. 19 OPENING STATEMENT 20 REGIONAL COUNCIL OF RURAL COUNTIES 21 ---oOo--- 22 MR. JACKSON: Yes, Mr. Caffrey, I'm here today 23 representing the Regional Council of Rural Counties which 24 has as its members a group of counties in the upstream 25 areas of California on both the Sacramento River, the CAPITOL REPORTERS (916) 923-5447 85 1 Trinity River, and the San Joaquin River. 2 These counties have about 80 percent of runoff 3 that enters the Bay-Delta watershed. And most of the 4 activities which have been proposed either to solve water 5 quality, or fishery problems in the Bay-Delta have had 6 effects on them upstream in terms of either flow changes, 7 habitat changes, and they are extensively involved in the 8 issue of: Whose water rights are going to -- are going to 9 be used to solve the flow-related issues in the Bay-Delta? 10 And I wanted to make an opening statement now, 11 because I wanted too highlight some of the problems with 12 this process as we see it. First, when we reach Phase II 13 there is proposed an agreement by a number of parties on 14 the San Joaquin River and the State and the Federal 15 Government and the export folks who take water from the 16 State and Federal pumps, either at Tracy or at Clifton 17 Court Forebay, or at the North Bay Aqueduct, or at 18 someplace in the Delta. 19 The basic problem is this: We do not have a 20 completed CEQA document. We believe that the gravamen of 21 CEQA, the reason for its being is to compare alternatives 22 in a complete and fair fashion. There is no preferred 23 alternative even in your amended CEQA document, which has 24 been recirculated and which the information in regard to 25 the amended areas is not due until July the 13th, which is CAPITOL REPORTERS (916) 923-5447 86 1 a period of about two weeks from today. 2 The concept that you can hear evidence on one 3 alternative and exclude evidence on the validity of the 4 other alternatives seems to us to be piecemealing the CEQA 5 document, and giving an advantage to an agreement that has 6 been reached by only some of the parties involved in the 7 circumstance. It allows our opponent -- and let me explain 8 what I mean by "opponent." The area of origin laws 9 apply -- the county of origin laws applies to the counties 10 I represent. The area of origin law is applied to some of 11 the counties that I represent and some to the citizens 12 within those counties who may not, and in many cases do not 13 have the ability to determine what their water needs are 14 today much less what their water needs will be in the 15 future under the area of origin. 16 In the past, the water needs in the Delta have 17 been met essentially in a method like alternative two in 18 your CEQA document where the State and the Federal 19 Government are responsible, the export parties are 20 responsible for meeting the conditions of the Delta. It is 21 proposed to change that. 22 From our point of view, we believe that there is 23 ample evidence in the record at the present time with the 24 introduction of the State Board's exhibits and with the -- 25 with the documents that have appeared by the parties to CAPITOL REPORTERS (916) 923-5447 87 1 show in some phase of this hearing that alternative two is 2 the appropriate alternative to choose, not alternative 3 eight which is the -- which is being highlighted in Phase 4 II of this particular proceeding. 5 The June 11th letter from the Chairman indicated 6 that for Phase II -- that letter came out four days before 7 the Phase II evidence closed, indicated that there would be 8 a reservation of the comparison of alternative two and 9 alternative five and alternative eight, which are, 10 essentially, changes in the -- in the way that the 11 allocation of responsibility is going to be met. And I 12 cannot tell from the phasing when all of this comes back 13 together. 14 I cannot tell when the -- when the document is 15 going to be certified, because that is as I understand it 16 under CEQA, a necessity before you can make a decision in 17 regard to Phase I, or II, or III, or IIII, or V, or VI, or 18 VII. And the problem with this is that I have a feeling 19 that while the evidence is already in the record that I 20 believe will make it clear that alternative two is the 21 right flow choice, we're going to be making the decision to 22 do something different before that evidence appears. 23 So what I would ask you to do is to allow 24 cross-examination at every stage by anyone who wants to 25 show you what's in the records. Since you can't possibly CAPITOL REPORTERS (916) 923-5447 88 1 read every bit of the 182 documents that have just been 2 placed in the record by your staff, use the adversarial 3 process, which is being sort of bad mouthed here for its 4 design, which is to bring out things for the Board -- I 5 mean you get the services of all these wonderful lawyers 6 putting evidence in front of you, challenging each other's 7 evidence and essentially not make any decision on any phase 8 of this hearing until the CEQA document is finished and 9 until all of these alternatives can be -- can be laid 10 before you as a group for you to choose a preferred 11 alternative, which hasn't been done yet, at the time of 12 Phase VIII of this hearing. 13 Now, there is some confusion, and you will see it 14 in the document that is here today filed by the folks from 15 the San Joaquin Tributary Agencies about whether or not 16 they're going to be required to come back and have their 17 agreement compete with all of the other alternatives in 18 your CEQA document in terms of an evidentiary hearing. If 19 they're not required to do that, you've prejudged the CEQA 20 case, prejudged the outcome of the hearing. And, 21 essentially, because we didn't file any evidence we're out 22 before we started. That's the wrong kind of procedure and 23 will lead to more litigation rather than less litigation. 24 As an example, there are two tremendously 25 important pieces of evidence, which I had not seen until CAPITOL REPORTERS (916) 923-5447 89 1 after the close of the deadline to file information in this 2 case. One of them is San Joaquin -- the San Joaquin 3 Group's Exhibit 18, the testimony of Gordon C. Rouzzer 4 (phonetic) who is a professor of natural resources at the 5 University of California, Berkeley, and who makes the 6 argument that alternative two is superior to alternative 7 five and lays out beautiful reasons for it. 8 If this gentleman is only going to testify and 9 we're going to limit the hearing on Phase II and we're 10 going to make the decision on Phase II before we get to 11 Phase VIII, this testimony is completely irrelevant and 12 should be struck. 13 So the second piece of evidence, which is 14 absolutely critical, comes from the Sierra Club's 15 representative, David Fullerton (phonetic), in which he 16 points out that the CEQA document does its duty of 17 determining what are the appropriate flows for fisheries, 18 where is their irretrievable and irremdial loss to 19 fisheries caused by government action? 20 The CEQA document bases the decision as to which 21 is the preferable alternative to a comparison of the flows 22 of the alternatives with the anadromous fish restoration 23 plan of the United States Fish and Wildlife Service, the 24 doubling, the narrative requirement is necessary. And it 25 shows that the agreement between the parties would result CAPITOL REPORTERS (916) 923-5447 90 1 in less than 50 percent of the flows necessary to meet the 2 narrative standard. And, yet, we're proposing to make a 3 decision on the agreement before we get finished with the 4 environmental document that uses this anadromous fish 5 restoration plan as the basis for the comparison of the 6 alternatives. 7 So from our point of view it seems that any 8 decision that's made should be continued -- should not be 9 made and should be continued until after Phase VIII. And 10 so we would request that the Board make its procedure in 11 that regard apparent to all of us so we can prepare. Thank 12 you. 13 C.O. CAFFREY: Thank you, Mr. Jackson. Actually, 14 you're closing helped me, because it emphasized that you 15 were discussing in the potential hypothetical. In other 16 words, we have not stated that we are aware of CEQA. And 17 this Board has not stated that it is going to -- it has not 18 stated how it's going to go about the decision process yet. 19 MR. JACKSON: Yes, sir, I was aware of that. I 20 wanted to make the statement up front so that at least you 21 would understand why some of us look at this -- we have no 22 objection to people trying to agree on things. 23 C.O. CAFFREY: Okay. 24 MR. JACKSON: But we don't want the agreement to 25 prejudge the issue at the end. The area of origin law is CAPITOL REPORTERS (916) 923-5447 91 1 absolutely critical to the counties I represent. And there 2 won't be a decision if the San Joaquin is taken off the 3 table and goes away, that the Mokelumne goes away, the 4 Putah Creek goes away, the Calaveras goes away, there 5 wouldn't be anything left to decide. 6 C.O. CAFFREY: I understand your statement now, 7 Mr. Jackson. I just want to be sure that you weren't 8 operating under the understanding that we had stated 9 definitely that we were going to decide in a certain 10 sequence, in a certain way. 11 MR. JACKSON: Thank you, sir. 12 C.O. CAFFREY: Thank you. Robert Maddow? 13 Mr. Maddow. 14 OPENING STATEMENT 15 CONTRA COSTA WATER DISTRICT 16 ---oOo--- 17 MR. MADDOW: Thank you, Mr. Chairman. Members of the 18 Board, I'm Robert Maddow. I'm the attorney for Contra 19 Costa Water District. I marked the card to say that we 20 would be making just a few, very brief general remarks and 21 then make an opening statement in regard to Phase I. 22 Because of the things that we had to say about 23 sort of the background of the Contra Costa Water District 24 sort of by way of opening, we thought we'd put this in a 25 written form and copies of a much longer version of what CAPITOL REPORTERS (916) 923-5447 92 1 I'm about to say will be delivered to each of the Board 2 Members. And they were available for all the parties in 3 the back of the room. 4 And let me say, sort of generally, you are quite 5 familiar, of course, with the positions that Contra Costa 6 Water District has taken historically in proceedings of 7 this nature for this Board. And we do not come before you 8 announcing that there's going to be a change in those -- in 9 the position that this District has historically taken and 10 continues to intricate. 11 However, there's a factual change and we thought 12 just by way of a very brief summary we would just remind 13 the Board that in June of 1994 you issued a decision 14 concerning water rights for the Los Vaqueros Project. In 15 September of 1994 construction of that dam and reservoir 16 project began. It has now gone into operation. The 17 reservoir was completed in February of this year and 18 filling began later that month. As of July the 1st, today, 19 the reservoir storage has reached approximately 40 percent 20 of capacity, about 40,000 acre feet of water in storage. 21 And it's anticipated that the reservoir could be filled by 22 the end of 1998 or early 1999. 23 I want to get that out here right away at the 24 beginning. It is a new fact about the relationship of the 25 Contra Costa Water District to these proceedings and to CAPITOL REPORTERS (916) 923-5447 93 1 many matters that are before you. Having said that by way 2 of sort of an elaboration on the background of my client, 3 let me explain in regard to Phase I that we have chosen to 4 participate by only making an opening statement regarding 5 the proposed extension of WR 95-6. 6 We do intend to cross-examine witnesses if that 7 proves to be necessary as the cases go in. And we do 8 reserve the right to submit rebuttal testimony. We believe 9 that there should be an extension of 95-6 beyond 10 December 31 of 1998 until such time that this hearing is 11 completed and a new water rights decision for the Bay-Delta 12 estuary is adopted and becomes effective. 13 Understand the points that were made earlier by 14 people suggesting specific dates by which -- to which you 15 should extend, we believe that you should extend and keep 16 the same terms and conditions until a new decision can 17 become effective. 18 And in those terms and conditions that are now in 19 place which we think are quite important and should be 20 extended is the condition that the use of Federal or State 21 facilities to make up productions in exports only be 22 permitted when the ships and exports don't adversely affect 23 any legal user of water, that includes us, or cause any 24 significant environmental effects on fish, wildlife, water 25 quality citing back to Order 95-6 in the written version of CAPITOL REPORTERS (916) 923-5447 94 1 our opening statement. 2 If there are going to be any changes in 95-6 we 3 would hope that any adverse impacts on water quality of the 4 District's now three intakes at Rock Slough, at Old River 5 related to Los Vaqueros and at Mallard Slough and the 6 intakes of the groundwater customers of the water district 7 to -- will also have their own intake. That any impacts on 8 them would be fully mitigated to protect drinking water 9 quality for the District's 400,000 residents. 10 Those mitigation measures could, if necessary, 11 include such things as elimination, or relocation, or 12 additional treatment of drainage into some of the Delta 13 channels near our intakes, perhaps the provision of a 14 substitute water supply, or changes of other means. 15 In conclusion, we very much appreciate the 16 opportunity to make this opening statement so to establish 17 for you an understanding of how we approach this hearing as 18 we rely solely upon the Delta for our water supply, these 19 issues in this hearing are of critical importance to CCWD. 20 And we look forward to participating throughout the 21 hearing. We anticipate that our initial submission of 22 direct evidence is likely to be in Phase V. Thank you very 23 much. 24 C.O. CAFFREY: Thank you, Mr. Maddow, appreciate that 25 information. CAPITOL REPORTERS (916) 923-5447 95 1 David Santino, good morning. 2 OPENING STATEMENT 3 DEPARTMENT OF WATER RESOURCES 4 ---oOo--- 5 MR. SANDINO: Good morning, again, Mr. Chairman and 6 Members of the Board. My name is David Santino on behalf 7 of the Department of Water Resources. The Department of 8 Water Resources has already submitted a longer written 9 opening statement for Phase I to all the parties. The 10 Department will not be submitting direct evidence today 11 during Phase I, but reserve our right to cross-examine and 12 present rebuttal testimony as needed. 13 In summary, the Department supports an extension 14 of Water Rights Order 95-6 as currently conditioned until 15 the hearings are completed and the Board's decision becomes 16 effective. The Board adopted Order 95-6, as you're well 17 aware, in June of 1995. And that decision will terminate 18 on December 31st of this year unless extended. In the 19 event Water Rights Order 95-6 is terminated the Department 20 and the Bureau would again be subject only to the terms and 21 conditions specified in D-1485. 22 We think it would be helpful to remind everyone of 23 the effect of Order 95-6. 95-6 on a temporary basis made 24 revisions to D-1485 to remove inconsistencies with the 1995 25 Water Quality Plan, established a review process to examine CAPITOL REPORTERS (916) 923-5447 96 1 Suisun Marsh water quality standards, modified D-1422 2 relating to the Vernalis standard, and created a limited 3 joint point to recover export reductions to improve fish 4 protections subject to the review of the CalFed operations 5 group and approval by this Board's Executive Director. 6 The Department will continue to request extensions 7 of the compliance date established in Water Rights 8 Order 95-6 for the Western Suisun Marsh stations S-35 and 9 S-97 for the duration of 95-6. We would also like to point 10 out that the Department supports maintaining the limited 11 joint point described in Water Rights Order 95-6 until the 12 Board issues a final decision for this hearing. 13 The Department will present evidence, however, to 14 support an unrestricted use of joint point during Phase VII 15 of the hearings. The Department strongly favors the 16 unrestricted joint point to provide flexibility to meet 17 water supply needs, to provide environmental benefits, and 18 to implement the Department of Interior's November 20th, 19 1997, plan pertaining to B-2 of the Central Valley Project 20 Improvement Act. 21 Although the Department may not make use of Water 22 Rights Order 95-6 make up provisions during 1998, or 1999 23 it's important that the flexibility permitted by 95-6 be 24 maintained until the end of the water rights hearing in our 25 view. We believe the make up provision is an important CAPITOL REPORTERS (916) 923-5447 97 1 tool to keep in place during the interim period. That 2 concludes my opening statement. 3 C.O. CAFFREY: Thank you very much, Mr. Sandino, we 4 appreciate that. Mr. Brandt, Alf Brandt. 5 OPENING STATEMENT 6 UNITED STATES DEPARTMENT OF INTERIOR 7 ---oOo--- 8 MR. BRANDT: Mr. Chairman, Alf Brandt of the United 9 States Department of Interior. We are not going to be 10 presenting a case in chief today. I would like to offer a 11 statement, but not actually by me. As you'll notice on my 12 card I put on there Lowell Ploss. We have previously 13 submitted a written statement of what he's going to 14 basically say and I served it to everyone. So that is 15 basically what we would like to do today. And I would like 16 to offer to you Lowell Ploss, perhaps more important to 17 you, the head of operations for the Central Valley Project. 18 C.O. CAFFREY: Thank you, Mr. Brandt. Welcome, 19 Mr. Ploss. 20 MR. PLOSS: Good morning, Mr. Chairman. Good 21 morning, Board. As Al said you do have a written statement 22 from us. I will try to just highlight that. Again, my 23 name is Lowell Ploss. I'm the operations manager for the 24 Central Valley Project for the Bureau of Reclamation and 25 I'm here representing the Department of the Interior. CAPITOL REPORTERS (916) 923-5447 98 1 In regard to Water Order 95-6 we can state that in 2 operation under that order for the past three years we have 3 virtually achieved the full objectives and standards under 4 the water quality control plan a hundred-percent of the 5 time. We've been successful in that we support extending 6 95-6 for an additional nine months through September 30th 7 of 1999. That would allow both the Central Valley Project 8 and the State Water Project to plan their water allocations 9 for the 1999 irrigation season. And, further, would allow 10 for a smooth transition from whatever the final order is 11 from the Board into those operations. 12 So we favor extending through the irrigation 13 season to allow that to take place. We do favor and urge 14 the Board that as orders come forward from the Board, 15 either as interim orders or final orders, that they be 16 incorporated or recognized in the operations of the 17 projects in complying with 95-6. 18 We recognize that the Board provided additional 19 time for settlement agreements to take place. Much work 20 has been done on those by many parties. One in particular 21 is the San Joaquin River agreement that we are a party to. 22 And we will be presenting information on that in Phase II 23 of these proceedings. With that I will just state that 24 extending 95-6 provides the simplest way to ensure the 25 Delta protection and allows these proceedings to continue. CAPITOL REPORTERS (916) 923-5447 99 1 Thank you. 2 C.O. CAFFREY: Thank you very much, Mr. Ploss. Tim 3 O'Laughlin. Good morning. 4 OPENING STATEMENT 5 SAN JOAQUIN RIVER GROUP AUTHORITY 6 ---oOo--- 7 MR. O'LAUGHLIN: Good morning. I would like to make 8 an opening statement on behalf of San Joaquin River Group 9 Authority and the member units within the authority. My 10 comments are more general in nature and don't specifically 11 apply to the Phase I extension of the 95-06. Mr. Short 12 will be addressing those. 13 Unless you hear otherwise from us when the San 14 Joaquin River Group Authority presents evidence it will be 15 presented on behalf of all of the members of the Authority. 16 We have previously supplied the Board with an exhaustive 17 list of those members. The other thing that you should be 18 aware of is that there will be other counsel other than 19 myself presenting various phases or witnesses, but they'll 20 be doing it on behalf of San Joaquin River Group Authority. 21 I will be lead counsel for the authority throughout the 22 proceedings. 23 One of the things that we're very concerned about 24 is the process that's been laid out by the State Water 25 Resources Control Board pursuant to the notice that was CAPITOL REPORTERS (916) 923-5447 100 1 sent out on May 6th of 1998. Subsequent to that there have 2 been letters from the parties to the State Water Resources 3 Control Board and responses by the State Water Resources 4 Control Board on the hearing notice. 5 We are so concerned about the process that we have 6 actually filed a motion today, it will be served on all the 7 parties today. And we would request that the State Water 8 Resources Control Board take that motion up, if not today 9 tomorrow, and rule on that motion on the merits in order 10 that this process can be clarified before we move forward. 11 We've already heard from Mr. Jackson and Mr. Bold today 12 that there appears to be some confusion about the bulk and 13 extent about what is to be included within Phase II. 14 It's our position that Phase II would include all 15 the alternatives as well as alternative eight, the San 16 Joaquin River Agreement, and the rights and 17 responsibilities of those parties to that agreement 18 vis-a-vis anything within meeting the flow objectives of 19 the 1995 Water Quality Control Plan. We want to make it 20 clear that the evidence you're being presented -- 21 C.O. CAFFREY: Mr. O'Laughlin. 22 MR. O'LAUGHLIN: Yes. 23 C.O. CAFFREY: I want to make sure I understand what 24 you just said. I realize you had the motion, it was up 25 here on the dais when we arrived this morning. CAPITOL REPORTERS (916) 923-5447 101 1 MR. O'LAUGHLIN: Yes. 2 C.O. CAFFREY: I can't tell you that we will be able 3 to rule on your motion by the close of tomorrow. I do want 4 to understand what you just said. Are you arguing -- and I 5 don't want to jump to any conclusions here, but are you 6 arguing for a two-phase hearing, this phase and then a 7 combined phase that takes into consideration all of the 8 agreements and all the testimony both adversarial, 9 supported, and otherwise? 10 MR. O'LAUGHLIN: No, I'm not. We believe that the 11 hearing notice that was sent out of May 6th was very clear. 12 And it states that any of the rights and responsibilities 13 of the parties to the agreement should be taken up in Phase 14 II. 15 So if Mr. Jackson or other parties such as the 16 City of Antioch, or anybody else has any issue in regard to 17 any of the parties to that agreement, or anything regarding 18 the agreement, or any of the alternatives, vis-a-vis, South 19 Delta Water Agency filed their documentation for Phase II 20 which states that they believe the recirculation 21 alternative is the superior alternative. We believe that 22 should be heard in Phase II. 23 If anybody has anything to say about the San 24 Joaquin River agreement, or the parties to that agreement 25 they should say it in Phase II. We should get done and CAPITOL REPORTERS (916) 923-5447 102 1 over with it. Because it's very clear, as we put forth in 2 our document, we don't want to be around for Phase VIII. 3 We hope to get an interim order from the Board that 4 excludes us from being in Phase VIII and that would delete 5 us from list 2A. 6 So we have some concern, because the letter of 7 June 11th that came out said that the Phase II would be 8 limited to the San Joaquin River agreement only and would 9 not talk about the other alternatives. Well, the problem 10 with that is I think you do have a due process problem if 11 you don't listen to the other alternatives and listen to 12 the other parties making presentations why those 13 alternatives would be better or worse, vis-a-vis, the San 14 Joaquin River agreement. 15 Because we don't want to come back for Phase VIII 16 and have a fully contested hearing. And if you do that, 17 then we've really done away with the whole reason to have a 18 Phase II hearing. Anyway, the motion is in front of you. 19 I'm sure other parties would want to be heard on the motion 20 and have it submitted. But we definitely need a ruling on 21 this before we start Phase II, because there's questions 22 about submittals of evidence and testimony, 23 cross-examination, rebuttal, and sir-rebuttal. 24 We're very concerned that your -- a letter that 25 just recently went out on June 22nd that says all rebuttal CAPITOL REPORTERS (916) 923-5447 103 1 testimony has to be in on the last day of the hearing of 2 the phase of the hearing. And that presents some problems, 3 because I'm sure that there's parties out there that want 4 to present evidence in regards to Phase II that because 5 things have become somewhat confused, may not have 6 presented that evidence. We don't want to see it come in 7 late and then have to prepare our rebuttal, or cross on the 8 last day of the hearings. 9 C.O. CAFFREY: Excuse me, Mr. O'Laughlin, we're 10 technically not in the process of hearing the motion, but 11 nevertheless based on at least on the prelude that you've 12 given us we may have a couple questions. Mr. Stubchaer. 13 MR. O'LAUGHLIN: Yes, Mr. Stubchaer? 14 C.O. STUBCHAER: Are you saying the parties you 15 represent want to put on all their evidence in Phase II 16 including all the adversarial evidence that might be 17 against each other? 18 MR. O'LAUGHLIN: No. We specifically wrote the State 19 Water Resources Control Board a letter pursuant to their 20 May 6th notice which exempted us from putting on our 21 adversarial evidence in Phase II. Our understanding was 22 that we would have a right to present that at a later phase 23 if and when the State Water Resources Control Board did not 24 accept the San Joaquin River agreement. 25 C.O. STUBCHAER: Yes, I was thinking of your letter CAPITOL REPORTERS (916) 923-5447 104 1 when I was asking my question. I don't know how that 2 comports with your earlier request to just get an interim 3 order after Phase II without the possibility of having all 4 the adversarial evidence in. 5 MR. O'LAUGHLIN: Well, no. Your hearing notice was 6 specific. It said, "Settling parties to the agreement did 7 not have to present adversarial testimony. Any other party 8 that was a nonsettling party did have to present 9 adversarial testimony." 10 In fact, you wrote a letter responding to 11 Ms. Zolezzi's inquiry which specifically said, "You need to 12 present your adversarial testimony, because you are not a 13 party to an agreement." So our position is everybody else 14 that wants to take a shot at us has to take it in Phase II 15 on everything. And we have been granted the right by the 16 State Water Resources Control Board to withhold our 17 adversarial testimony. 18 You will -- well, you have the motion in front of 19 you -- 20 MR. NOMELLINI: Are we going to get to debate that? 21 C.O. CAFFREY: Yes, absolutely. I apologize, because 22 I probably -- I mean we did engage in a little conversation 23 here, but we will take this up as a motion with the full 24 opportunity for commentary at a later date. I just wanted 25 to get some clarification and maybe we went a little too CAPITOL REPORTERS (916) 923-5447 105 1 far with the engagement here. So why don't we cease the 2 argument on the issue now. And we will deal with it when 3 we formally hear the motion and decide on it. 4 MR. O'LAUGHLIN: And it's our request that that 5 motion has to be heard before we start Phase II. The other 6 thing that the San Joaquin River Group Authority is 7 concerned about as far as a process is that we believe that 8 since we are in the hearing phase that the State Water 9 Resources Control Board should not be sending out letters 10 responding to inquiries by parties. 11 If parties have anything that they want to bring 12 before the Board, they should bring it as a formal motion, 13 notice all the parties, and have all the parties have a 14 right to be heard on the issues that are being presented to 15 the State Water Resources Control Board. 16 The final issue is as to CEQA. We believe as well 17 as Mr. Jackson and others that CEQA is an important issue 18 that needs to be addressed by the State Water Resources 19 Control Board. We are concerned that in your hearing 20 notice there seems to be no process set up to inform the 21 parties how we are going to go about the CEQA process, 22 provide input to the Board on the CEQA process, and hopeful 23 will reach some resolution or conclusion in regards to how 24 CEQA will be applicable to these proceedings, vis-a-vis, 25 any orders that may be rendered by the Board, whether they CAPITOL REPORTERS (916) 923-5447 106 1 be interim orders or final orders. 2 And we would like to see that that process be set 3 up as soon as possible so it's very clear of where we will 4 go with CEQA. And with that I conclude my opening 5 statements on behalf of the San Joaquin River Group 6 Authority. Thank you, Mr. Chairman. 7 C.O. CAFFREY: Thank you, Mr. O'Laughlin, appreciate 8 your comments. It is now -- that completes the cards that 9 we have for opening statements that are not for cases in 10 chief of Phase I. Ms. Zolezzi? 11 MS. ZOLEZZI: Yes, Chair, if I might clarify, 12 Stockton East Water District is presenting only an opening 13 statement and not a case in chief, if you'd like to take 14 mine now. 15 C.O. CAFFREY: I'm sorry. I did not realize that, 16 Ms. Zolezzi. I have you down as presenting a case in 17 chief. So if you'd like to come forward now and present 18 your opening statement, please, do. 19 OPENING STATEMENT 20 STOCKTON EAST WATER DISTRICT 21 ---oOo--- 22 MS. ZOLEZZI: Thank you, Mr. Chair. I apologize for 23 the confusion. I'm not sure how we got on the list as 24 having a case in chief, but in any event we'll proceed with 25 our opening statement. CAPITOL REPORTERS (916) 923-5447 107 1 My name is Jeanne Zolezzi for the record 2 representing Stockton East Water District in Phase I. And 3 as I mentioned we will not be providing evidence, but, of 4 course, we do reserve our right to cross-examine or provide 5 rebuttal evidence if needed during the phase. The question 6 presented in Phase I is whether or not the State Water 7 Resources Control Board should adopt an interim order 8 extending Water Rights Order 95-6. 9 And as you know Stockton East Water District and 10 others, as has been mentioned this morning, attempted to 11 challenge that original order in court, but we were 12 prevented from doing so by the claim of the United States 13 of Sovereign Immunity And we challenge that order because 14 we believed and still believe that it violates the 15 requirements of California law and the duty of this Board 16 to protect all water users. 17 But to be brutally honest I guess we went through 18 that already. Our claims fell on deaf ears and we won't 19 repeat them here, which is why we are not presenting a case 20 in chief. But we do want to make two simple statements, 21 one of which applies to only 95-6 and one which is a bit 22 broader. 23 The first is the parties, it appears to us, seem 24 to forget exactly what 95-6 did although a couple of the 25 parties this morning got it right. We want to clarify for CAPITOL REPORTERS (916) 923-5447 108 1 the record that Order 95-6 did not impose the obligation 2 upon any party of meeting the 1995 Water Quality Control 3 Plan. That was a major bone of contention at the original 4 hearings. And this Board clarified again and again that it 5 was not imposing obligations to meet that Water Quality 6 Control Plan. It was simply making changes to the water 7 right permits of the State and Federal Projects so that 8 they could operate those projects consist with their 9 voluntary commitment to meet the Water Quality Control Plan 10 flows. 11 We point that out specifically because in some of 12 the testimony submitted by the United States they mention 13 the obligations imposed by Order 95-6. And we would simply 14 request that if Order 95-6 is extended we would like that 15 clarification to be in there once again that it is not 16 imposing any obligation upon any party to meet the flow 17 requirements and specifically does not require the United 18 States to make releases from New Melones Reservoir or from 19 any other CVP project to meet the Vernalis flows. 20 The second point is a bit broader regarding the 21 role of this Board and we've disagreed over the past few 22 years over its role in these water rights hearings and its 23 decision. And it's our view that the Board is stepping 24 back and somewhat abandoning its role as an adjudicator. 25 And using New Melones as an example, your position has been CAPITOL REPORTERS (916) 923-5447 109 1 again and again that the water rights for New Melones are 2 held by the United States. 3 As the appropriator it can do what it wants with 4 that water which would include not using it, using it for 5 Fish and Wildlife enhancement, or sending it down the river 6 and abandoning it where it can later reappropriate that 7 water miraculously in the Delta for export. We don't 8 believe that that's consistent with what the law requires 9 you to do with water rights, or what as a Board you have 10 taken as a position with regard to water rights in the 11 past. That would be like saying that all the water in the 12 State belongs to appropriators and the appropriators can do 13 whatever they want with that water and you have no right as 14 a Board to oversee the policy use of that water, or the 15 protection of other water right users under California law. 16 We don't think you should take that position. And, of 17 course, we think your role is broader than that. 18 So what we would be asking in this water right 19 hearing is for the Board to assume that role to fully 20 protect and administer the waters of this State which 21 includes the duty to enforce the laws to protect all water 22 users regardless of their size or political power. And we 23 would look to your statements this morning as assurances 24 that you will do that. And that's one of the things that 25 we'll be asking you to do through the phases that are to CAPITOL REPORTERS (916) 923-5447 110 1 come. Thank you. 2 C.O. CAFFREY: Thank you very much, Ms. Zolezzi. 3 That completes the cards that we have for opening 4 statement -- yes, Mr. Candee? 5 MR. CANDEE: Can I ask a procedural question about 6 the motion that was just presented, because -- 7 C.O. CAFFREY: Certainly. 8 MR. CANDEE: I apologize, I wasn't planning on 9 making a statement, but it seems the motion is pretty 10 sweeping and particularly affects people who have an 11 interest in Phase II, many of who may not be here today and 12 tomorrow. And I just want to urge the Board to announce to 13 all the parties by mail or e-mail, or whatever the system 14 is when you will be hearing responses to it, because there 15 are a lot of issues there that I think other parties would 16 want to present testimony on. Thank you. 17 C.O. CAFFREY: Thank you, sir, for that admonition. 18 That's something we'll take under submission and consider. 19 Appreciate it. That completes the cards that we have for 20 general opening statements. I believe that now takes us to 21 the point in the hearing where we will go to cases in chief 22 for Phase I. We're not going to do that before the lunch 23 break, because it's 10 minutes to 12:00, but let me -- 24 Mr. Birmingham, you rise. 25 MR. BIRMINGHAM: Yes. Mr. Chairman, with respect to CAPITOL REPORTERS (916) 923-5447 111 1 case in chief that's going to be presented by San Luis and 2 Delta Mendota Water Authority, that case in chief consists 3 of the testimony of two individuals. One of those 4 individuals, Dan Nelson, is in Los Banos. And his 5 testimony has been marked for identification as Exhibit 6 SLDMWA 6. I was going to ask for a stipulation of the 7 parties that that evidence could be admitted without 8 subjecting Mr. Nelson to cross-examination. If we do not 9 have that stipulation then it will be necessary for me to 10 contact Mr. Nelson so he can travel to Sacramento this 11 afternoon to be available for cross-examination. 12 C.O. CAFFREY: Okay. Ms. Leidigh, do you have a 13 comment? 14 MS. LEIDIGH: Yes, I do. Normally, any testimony 15 that we get is subject to cross-examination. And if any 16 parties want to cross-examine the witness then that party 17 should have an opportunity to do it. There's another thing 18 that is also of concern here, if you just submit the 19 statement you don't have Mr. Nelson testifying that this is 20 a true and correct copy of his statement and that 21 everything in it is true. So it becomes a hearsay 22 document. 23 MR. BIRMINGHAM: I can address that point by 24 substituting a statement that's signed under penalty of 25 perjury by Mr. Nelson for this exhibit. CAPITOL REPORTERS (916) 923-5447 112 1 C.O. CAFFREY: That would be a notarized type of a 2 document? 3 MR. BIRMINGHAM: It could be notarized, although I 4 don't think it would have to in order to conform with the 5 Rules of Evidence. 6 C.O. CAFFREY: Would that suffice, Ms. Leidigh? 7 MS. LEIDIGH: I'll think about that. The other part 8 is that the parties to this do have a right to 9 cross-examine witnesses and -- 10 C.O. CAFFREY: I believe Mr. Birmingham is rising 11 just basically to ask if anybody has an objection to 12 submitting Mr. Nelson's exhibit without cross-examination. 13 MR. BIRMINGHAM: Yes. 14 C.O. CAFFREY: So, frankly, if one party stands up 15 and says I want to cross-examine then we have to have him 16 here. 17 MR. BIRMINGHAM: And I will contact Mr. Nelson and 18 ask him to come here. 19 C.O. CAFFREY: Yes. So let me pose the question, 20 assuming that everybody is here that's -- 21 UNIDENTIFIED MAN: Can you refresh our recollection 22 what it is that he's going to be talking about? 23 C.O. CAFFREY: Maybe you can briefly tell us -- 24 MR. BIRMINGHAM: All the parties have had the exhibit 25 for some time, but briefly it is say a statement or CAPITOL REPORTERS (916) 923-5447 113 1 testimony concerning the role of authority in connection 2 with the negotiation of the Bay-Delta Accord and the 3 understanding that the Authority had with respect to the 4 implementation of the Accord and the affects of extending 5 95-6 on the -- on the Authority and its members. And there 6 is a proposed condition that Mr. Nelson articulates in his 7 testimony. 8 MR. NOMELLINI: We can shorten the debate, 9 Mr. Chairman, we would object to have his testimony being 10 entered without the opportunity to cross-examine. 11 MR. BIRMINGHAM: All right. Thank you very much, 12 Mr. Chairman. 13 C.O. CAFFREY: All right, sir. There is the answer, 14 Mr. Birmingham. You'll need to have your witness here. 15 All right. We will take the cases in chief when we come 16 back from lunch in the following order: 17 San Joaquin County, Central San Joaquin Water 18 Conservation District, South Delta Water Agency, San Luis 19 and Delta Mendota Water Authority, Westlands Water 20 District, that will be the order. We will come back here 21 to resume the hearing at 1 o'clock. Thank you. 22 (Luncheon recess.) 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 114 1 WEDNESDAY, JULY 1, 1998, 1:06 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 COHEARING OFFICER CAFFREY: Please, find your seats 5 and we'll resume the hearing. When we broke for lunch 6 staff indicated that there may be further adjustments to 7 the list of parties presenting cases in chief. Maybe the 8 best thing for me to do is just to go through the list and 9 ask the representatives if they do, in fact, wish to 10 present a case in chief and see if we missed anybody. San 11 Joaquin County, are you going to be presenting a case in 12 chief? 13 MR. SHEPHARD: Yes. 14 C.O. CAFFREY: Central San Joaquin Water Conservation 15 District? 16 MR. ROBERTS: No, we will not in Phase I, but we 17 reserve as to Phase II. 18 C.O. CAFFREY: All right, sir. South Delta Water 19 Agency? 20 MR. HERRICK: Yes, Mr. Chairman. 21 C.O. CAFFREY: Mr. Herrick, thank you. Central Delta 22 Water District? 23 MR. NOMELLINI: Yes, Mr. Chairman. 24 C.O. CAFFREY: Mr. Nomellini, thank you. San Luis 25 and Delta Mendota Water Authority? CAPITOL REPORTERS (916) 923-5447 115 1 MR. BIRMINGHAM: Yes, in combination with Westland. 2 C.O. CAFFREY: Right. And you did indicate that 3 earlier on the record, Mr. Birmingham, thank you very much. 4 All right. Have we left anybody out that intended to 5 present a case in chief in Phase I? All right. We have 6 not. So, again, I'll read them. And this is the order 7 we'll take them in: San Joaquin County, South Delta Water 8 Agency, Central Delta Water Agency, San Luis and Mendota 9 Water Authority, and Westland Water District. All right. 10 We can begin, then, with presentation -- there is 11 one other order of business. I had promised that when 12 Mr. Short arrived we would allow him to give us an opening 13 statement for the entire proceeding. 14 Good afternoon, Mr. Short, and welcome to you, 15 sir. 16 OPENING STATEMENT 17 SAN JOAQUIN RIVER GROUP AUTHORITY 18 ---oOo--- 19 MR. SHORT: Good afternoon, Mr. Chairman, and I 20 appreciate the opportunity to come before you. I know you 21 have a lot of important things to do, so my statement will 22 be extremely short, brief, and to the point and also good 23 afternoon to the Board Members. 24 First of all, let me just say that the San Joaquin 25 River Group Authority supports the extension of 95-06 in CAPITOL REPORTERS (916) 923-5447 116 1 the Bay-Delta Accord for the duration of these hearings. 2 However, we do reserve the right to challenge 95-06 in the 3 Accord if, in fact, our waters are adversely affected. 4 That is the only statement that we will have during Phase I 5 at this point. Thank you. 6 C.O. CAFFREY: Thank you, Mr. Short, for that 7 presentation. 8 C.O. STUBCHAER: It was short. 9 C.O. CAFFREY: It was. 10 MR. SHORT: Short and to the point. 11 C.O. CAFFREY: And to the point. That then brings us 12 to the Phase I presentations of the cases in chief. And as 13 a prelude to that I would like to ask, since we do not have 14 a case in chief presentation by an applicant, per se, I'd 15 like to ask Ms. Leidigh to just frame the issue for us one 16 more time. 17 MS. LEIDIGH: Sure. I wonder whether this is going 18 to work adequately. 19 C.O. CAFFREY: Ms. Leidigh, you may just want to go 20 to the podium. I don't think that is picking you up very 21 well. 22 MS. LEIDIGH: It's not loud enough. Okay. In the 23 hearing notice the notice indicates that Phase I would be 24 to consider the extension of Order WR 95-6, or the 25 equivalent temporary compliance with the 1995 Bay-Delta CAPITOL REPORTERS (916) 923-5447 117 1 Plan. Basically what that means is that there could be 2 some variations, but what we're looking at is a temporary 3 compliance. This relates to the first key hearing issue in 4 the hearing notice. And that issue says: Should the SWRCB 5 extend the effective period of Order WR 95-6? If so, how 6 long should it be extended and what terms and conditions 7 should it contain? 8 What we're really looking at here is adopting, or 9 considering the adoption of an order at some point before 10 95-6 expires that would contain its own new set of findings 11 of fact and conclusions of law and would contain terms and 12 conditions. And we're asking whether or not those terms 13 and conditions, assuming that it's similar to 95-6, should 14 be the same or different. 15 95-6 is a temporary amendment of the terms and 16 conditions in the water rights that are held by the State 17 Water Project and the Central Valley Project. And it 18 substitutes water quality standards for striped bass, 19 Suisun Marsh, export limits, and Delta cross-channel gate 20 closures that are set forth in the 1995 Bay-Delta Plan for 21 the corresponding water quality standards that were added 22 to those water rights under Water Rights Decision 1485 in 23 1978. 24 It also temporarily authorized the State Water 25 Project and the Central Valley Project to use joint points CAPITOL REPORTERS (916) 923-5447 118 1 of diversion in the Southern Delta. In other words, use 2 each other's export pumping facilities subject to certain 3 terms and conditions. And those terms and conditions 4 restrict the use of pumping under the joint point to 5 circumstances in which the Delta fisheries were benefited. 6 The last thing it did was to temporarily change 7 the Vernalis salinity standards under Decision 1422, which 8 is the decision on the New Melones water rights to 9 correspond to the Vernalis salinity standards in the 1995 10 Bay-Delta Plan. 11 Order 95-6 expires on December 31st, 1998. And so 12 the conditions that are in Order 95-6 would expire on that 13 date unless they are extended, or another order is adopted 14 that carries out that further. So that's what Phase I is 15 about is whether or not to extend those terms and 16 conditions. If there are any questions I'll be happy to 17 answer them. 18 C.O. CAFFREY: Thank you, Ms. Leidigh. Any questions 19 from the Board Members? All right. Appreciate your 20 summary. We will now go to presentation of the case in 21 chief by San Joaquin County. Is that Mr. Shephard? 22 MR. SHEPHARD: Yes. 23 C.O. CAFFREY: Good afternoon, again, sir, and 24 welcome. 25 // CAPITOL REPORTERS (916) 923-5447 119 1 SAN JOAQUIN COUNTY 2 CASE IN CHIEF 3 BY THOMAS J. SHEPHARD 4 ---oOo--- 5 MR. SHEPHARD: Good afternoon to you. It's no secret 6 that San Joaquin County and many of the water agencies in 7 the County have had very strong objections to the 1995 8 Bay-Delta Plan and to WR 95-6 which implemented it. We are 9 opposed to any extension of WR 95-6 for the reasons that 10 I'll touch on briefly and which you have heard before which 11 Ms. Zolezzi alluded to earlier. And if in your judgment 12 you must extend it, we would then ask that it be extended 13 to only the end of this hearing and not longer than that. 14 I might say we were uncertain as to when under the 15 various phases to present the evidence and exhibits which 16 Mr. Pulver will present immediately following me as our 17 sole witness, but we would ask that you consider the 18 material that will be presented by Mr. Pulver and the 19 exhibits which have already been filed and which -- and the 20 further deliberations and the further phases of this 21 hearing. 22 As I say, it was difficult for us to classify just 23 where we could make the kind of comments that 24 Mr. Pulver would have to make. But we felt in view of the 25 fact that we do continue to oppose WR 95-6 we felt it was CAPITOL REPORTERS (916) 923-5447 120 1 an appropriate place to do it. 2 San Joaquin County contains a variety of water 3 interests within the County. They -- the water interests 4 have varying views on a number of issues, but I think they 5 are united in the common concern that the watershed 6 Protection Act and the Delta Protection Act be applied in 7 any interim decision, or final decision resulting from this 8 proceeding. 9 As we pointed out in our EIR comments, the 10 alternatives reviewed in the EIR give lip service to the 11 Protection Acts, but we feel fail to apply them. We feel 12 it is your duty to apply them and you must address that in 13 this hearing. 14 We do not believe that the 1995 Bay-Delta Plan in 15 its interim application in any way guided or even 16 considered the Protection Acts, and in fact, they violate 17 various provisions of California law. Mr. Pulver who will 18 testify shortly will indicate the harm being suffered 19 within San Joaquin County as a result of not applying the 20 Watershed Protection Act and the Delta Protection Act. 21 In addition, we believe that the interim plan 22 clearly violates Article 10, Section 2 of the California 23 Constitution. The use of fresh New Melones water, which is 24 a part of the base case that becomes a part of 95-6 and 25 further becomes a part of the various alternatives which CAPITOL REPORTERS (916) 923-5447 121 1 are dealt with in the EIR to use that fresh water to dilute 2 salinity in the San Joaquin River generated upstream of the 3 Stanislaus and upstream of San Joaquin County is clearly an 4 unreasonable use of water prohibited by Article 10, Section 5 2 of the California Constitution. 6 As numerous and almost unended studies dating back 7 to the 1970s have demonstrated, the primary source of the 8 severe water quality problems in the San Joaquin River is 9 from CVP deliveries to the west side of the Central Valley 10 south of San Joaquin County and the resulting agricultural 11 and wetlands drainage resulting from those deliveries. 12 As early as 1961, and I'm sensitive to this 13 because I wrote the statute on behalf of San Joaquin County 14 many years ago, as early as 1961 the Legislature enacted 15 Section 12230, and following, of the Water Code which 16 recognized that it was the responsibility of the State to 17 determine an equitable and feasible solution to the 18 deterioration of the San Joaquin River. In the 37 years 19 since a solution has not been identified and the situation, 20 as the studies indicate, have grown worse not better. 21 The sole method used today and considered by the 22 EIR alternatives to remedy the poor water quality in the 23 San Joaquin River and to achieve water quality objectives 24 has been through releases at New Melones to dilute 25 pollution. Measurement of the objective has been at CAPITOL REPORTERS (916) 923-5447 122 1 Vernalis, thus dedicating the remainder of the San Joaquin 2 River to serve as a draining or, perhaps, some might say a 3 sewer. 4 The plan and the use of much of the capacity of 5 New Melones for dilution of pollution is unfair to San 6 Joaquin County. San Joaquin County has not created this 7 problem and yet water to which we believe we should have 8 from New Melones both in the South Delta at times when 9 water is required in the South Delta and in the eastern 10 part of our county is not available because of this use and 11 which is perpetuated by the Plan and WR 95-6. 12 Our basic and overriding concern with any interim 13 or permanent plan and implementation is that the plan be in 14 accord with California Water Law. We believe California 15 Water Law protects our interests. And if it's applied we 16 will be protected. A plan should not include aspects which 17 alter the priority of water rights, or limit the 18 protections afforded by the Delta and Watershed Protection 19 Statutes and the Constitution. 20 The Watershed Protection Statute, the Delta 21 Protection Act, and a number of related statutes such as 22 the county of origin and area of origin law were each part 23 of what I would call a total compact developed over a 24 period of years among the people of California. They were 25 offered to Northern California in exchange for the export CAPITOL REPORTERS (916) 923-5447 123 1 of very large quantities of water. 2 The export projects have been built and have 3 matured and have brought about some very serious problems. 4 We would ask that you look to the export projects for 5 solutions and not to a watershed such as the Stanislaus 6 which is needed by a local area which was extended 7 protection as a prerequisite for going forward with the 8 export projects. 9 We concur with Mr. Jackson's concern as to the 10 fact that the CEQA process has not been completed. And I 11 think it is important that you address how in this hearing 12 the CEQA process is going to be addressed and brought to 13 completion along with the formulation of final decisions. 14 I would like to now call as a witness Mr. John Pulver who 15 is the water coordinator for the County of San Joaquin and 16 he will present his evidence. 17 C.O. CAFFREY: Thank you, Mr. Shephard. Mr. Pulver. 18 MR. PULVER: Good afternoon. 19 C.O. CAFFREY: Good afternoon, sir. You've taken the 20 oath and the affirmation, depending on which term you like, 21 sir? 22 MR. PULVER: In deed I have. I would like to note 23 that Exhibits 1 and 2 in the information that was 24 provided -- or has been provided is accurate statements of 25 my qualifications and the second is my testimony. And I CAPITOL REPORTERS (916) 923-5447 124 1 will summarize that testimony in my presentation to you 2 right now. 3 C.O. CAFFREY: Please proceed, sir. 4 MR. PULVER: Thank you. 5 C.O. CAFFREY: Somebody decided to do their vacuuming 6 next door here. Mr. Stubchaer always efficient is 7 hopefully taking care of it. 8 MR. PULVER: Thank you. 9 C.O. STUBCHAER: What happened when I was away? 10 C.O. CAFFREY: We were complimenting your efficiency, 11 Mr. Stubchaer. 12 All right, sir, please proceed. 13 MR. PULVER: Okay. Thank you. The citizens of San 14 Joaquin County primarily obtain their water supplies from 15 the Mokelumne River, Calaveras River, the Stanislaus River, 16 San Joaquin River, and groundwater supplies. Water is 17 pumped from the Delta for direct use of the agricultural 18 lands within the Delta. And water is obtained from the 19 export projects for those areas in the counties south of 20 the Delta. All the cities in San Joaquin County, if not 21 all, a portion of their water supply is from groundwater 22 sources. Most of the agricultural on the east side of the 23 county obtains its water supply from groundwater sources as 24 well. 25 San Joaquin County has a growing urban population CAPITOL REPORTERS (916) 923-5447 125 1 but still remains an extremely productive agricultural 2 region. In 1997 the gross value of agricultural production 3 was approximately one and a half billion dollars. The ten 4 leading agricultural products in the County is grapes, 5 milk, walnuts, cherries, almonds, tomatoes, asparagus, hay, 6 apples, and corn. 7 Surface waters available to the County are 8 becoming limited for allocations for other purposes. The 9 groundwater basin is not in a condition to meet the current 10 demands being put on it. The basin has been defined as 11 "critically over drafted," and continues in the long-term 12 to have more water extracted than Mother Nature provides 13 for replenishment. 14 The average annual overdraft is 70,000 acre feet. 15 This is expected to increase to 130,000 acre feet by the 16 year 2020. In addition to the overdraft situation there is 17 saline water that is moving into the basin. And in order 18 to halt the saline movement of water an additional 19 approximately 70,000 acre feet of water per year will be 20 required. 21 The Central San Joaquin Conservation Water 22 District has a contract for 49,000 acre feet of water from 23 the Stanislaus River. This supply was expected to reduce 24 overdraft in the County. These water supplies are not 25 being met on a regular basis as expected. Therefore, the CAPITOL REPORTERS (916) 923-5447 126 1 long-term water deficiency on the east side of the County 2 alone is expected to be approximately 250,000 acre feet per 3 year. 4 The County has investigated all possible sources 5 of developing new water for the area. These investigations 6 are documented in the written report and have been met with 7 varying degrees of resistance. The State Board should not 8 implement the full dependent objectives of the 1995 9 Bay-Delta standards, nor consider an extension of Order 10 WR 95-6, or equivalent temporary compliance with the 1995 11 Bay-Delta Plan in a manner that would deprive the County 12 and its inhabitants of water required to meet reasonable 13 beneficial needs including water needed to combat the 14 overdraft condition in the groundwater basin. 15 The County strenuously objects to the continued 16 implementation of the standards in a manner that would 17 effect -- which the effect is to deprive inhabitants of 18 water rights of San Joaquin County of water which they are 19 entitled to while exports continue. It is fundamentally 20 unacceptable for any further State Board action to assume 21 that the salinity objectives for the San Joaquin River at 22 Vernalis are the responsibility of the Bureau and will be 23 provided for from New Melones Reservoir. 24 In order to meet our long-term water supply needs 25 the provisions of the watershed of origin laws must be CAPITOL REPORTERS (916) 923-5447 127 1 strenuously enforced in order to protect the long-term 2 needs within San Joaquin County. Our county-wide goals are 3 not -- to not do further permanent damage to the 4 groundwater resources in the County and to ensure that 5 adequate water supply to all water users in the County will 6 be sufficient -- of sufficient quality to meet their needs. 7 That concludes my statement. 8 C.O. CAFFREY: All right. Thank you, sir. 9 Mr. Co-Chair? 10 MEMBER BROWN: Chairman? 11 C.O. CAFFREY: Mr. Brown. 12 MEMBER BROWN: Question to John. The 70,000 acre 13 feet per year, what's that doing to the water table? 14 What's it amount to? 15 MR. PULVER: On a long-term average it's dropping a 16 foot and a half. 17 MEMBER BROWN: A year? 18 MR. PULVER: Yes, a year. 19 MEMBER BROWN: And then what's happening to the water 20 quality, what's the pbs now? 21 MR. PULVER: Well, it's -- the biggest problem, of 22 course, is the movement of the saline front into the 23 groundwater basin which has been tracked for quite a long 24 time. And the tracking actually stops when the water 25 quality reached the 300 parts per million chloride level. CAPITOL REPORTERS (916) 923-5447 128 1 So that's -- 2 MEMBER BROWN: Chloride is 300? 3 MR. PULVER: Yeah. And that then becomes an unusable 4 supply and so the tracking kinds of ends at that point. 5 MEMBER BROWN: And the pumping water level? 6 MR. PULVER: Varies, of course, but we're at 150 7 feet. 8 MEMBER BROWN: Thank you, John. 9 C.O. CAFFREY: All right. Does that, then, 10 Mr. Shephard, complete your presentation? 11 MR. SHEPHARD: Yes, it does with the exception of 12 requesting that Exhibit 1 through 12, which we have filed, 13 become a part of the record. 14 C.O. CAFFREY: All right. I'll consider the exhibits 15 after we see if there are -- 16 MR. SHEPHARD: Yes. 17 C.O. CAFFREY: -- any of the parties who wish to 18 cross-examine. Since we have so many parties and so many 19 representatives, I think until we get a little more 20 familiar with your faces probably the most efficient way to 21 do this is to just ask, for starters, by showing of hands 22 how many people wish to question this witness? 23 Mr. Birmingham and Mr. Schulz. Anybody else? 24 All right. We'll take you both in alphabetical 25 order in the order in which you rose. Yes, gentlemen, you CAPITOL REPORTERS (916) 923-5447 129 1 can both sit at the table if you wish. And then, 2 Mr. Birmingham, if you wish to come forward and 3 cross-examine the witness, please, do so at the podium. 4 Good afternoon, sir. 5 ---oOo--- 6 CROSS-EXAMINATION OF SAN JOAQUIN COUNTY 7 BY WESTLANDS WATER DISTRICT 8 BY THOMAS W. BIRMINGHAM 9 MR. BIRMINGHAM: Thank you very much. Mr. Pulver, my 10 name is Tom Birmingham. I am the attorney for Westlands 11 Water District and the San Luis and Mendota Water 12 Authority. I have just a few questions. Your direct 13 testimony makes reference to the New Melones Reservoir; is 14 that correct? 15 MR. PULVER: That's correct. 16 MR. BIRMINGHAM: And are you familiar with the 17 proceedings before the State Water Resources Control Board 18 that resulted in the decision permitting the Bureau of 19 Reclamation to appropriate water at New Melones Reservoir? 20 MR. PULVER: To some degree. 21 MR. BIRMINGHAM: Is it correct that the County of San 22 Joaquin participated as a party to those proceedings? 23 MR. PULVER: I'm sure we did. 24 MR. BIRMINGHAM: On page 14 of San Joaquin County 25 Exhibit 2 it states, "It is fundamentally unacceptable for CAPITOL REPORTERS (916) 923-5447 130 1 any further State Board action to assume that the salinity 2 objectives for the San Joaquin River at Vernalis are the 3 responsibility of the Bureau and will be provided from the 4 New Melones Reservoir." 5 Did I accurately read that? 6 MR. PULVER: That's correct. 7 MR. BIRMINGHAM: Are you familiar with the Federal 8 law authorizing construction of the New Melones Reservoir? 9 MR. PULVER: Not entirely. 10 MR. BIRMINGHAM: Are you aware that congress 11 authorized the construction of the New Melones Reservoir 12 for the purpose of improving water quality in the San 13 Joaquin River? 14 MR. PULVER: I'm not familiar with the details of it, 15 but -- 16 MR. BIRMINGHAM: Is it correct that the County of San 17 Joaquin was the party in the proceedings before this Board 18 that proposed the condition on the Bureau's permits that 19 the Bureau be required to use New Melones Reservoir to meet 20 the salinity control objectives at Vernalis? 21 MR. PULVER: Yeah, I'm not familiar with that 22 proposal directly. 23 MR. BIRMINGHAM: So if the records of the Board were 24 to reflect that that was a proposal originally made by the 25 County of San Joaquin, are we correct that the County of CAPITOL REPORTERS (916) 923-5447 131 1 San Joaquin is now changing its position? 2 MR. PULVER: Well, not being familiar with that 3 direct proposal initially, then, in order to answer that 4 question I'd have to do more research. 5 MR. BIRMINGHAM: So the answer is you don't know what 6 the position of the County of San Joaquin was in connection 7 with the proceedings that resulted in the permits? 8 MR. PULVER: The exact working of those permits, 9 yeah, that's right. 10 MR. BIRMINGHAM: You make reference on page 15 of San 11 Joaquin County Exhibit 2 to a portion of San Joaquin County 12 being within the area of origin. The area of origin of 13 what water body? 14 MR. PULVER: Well, it could be -- I mean we are 15 serviceable from the rivers that I mentioned that we are 16 currently getting supplies from, the Stanislaus, from the 17 Mokelumne, from the Calaveras. 18 MR. BIRMINGHAM: Is Stockton East Water District in 19 the watershed of the San Joaquin River? 20 C.O. CAFFREY: Excuse me, before you answer, 21 Mr. Pulver, could you move the mic a little bit closer. I 22 think the people in the back are having difficulty. It's 23 not the world's greatest sound system. 24 Please, raise your hands in the back if you're 25 having difficulty hearing. CAPITOL REPORTERS (916) 923-5447 132 1 MR. PULVER: I think I'm out of cord. 2 C.O. CAFFREY: Yeah, you're taped in there. 3 MR. PULVER: That's better. Is that better? 4 C.O. CAFFREY: Much better. 5 MR. BIRMINGHAM: Let me restate the question. Is 6 Stockton East Water District in the watershed of the San 7 Joaquin River? 8 MR. PULVER: The -- that area would be tributary to 9 the San Joaquin River. That's correct. 10 MR. BIRMINGHAM: Is the Stockton East Water District 11 within the watershed of the Stanislaus River? 12 MR. PULVER: Define tributary areas of the -- within 13 the boundaries of the Stockton East Water District as being 14 tributary to the -- to the Stanislaus River if from a pure 15 hydrologic sense, I don't believe that would be the case. 16 I'd have to, you know, look at the specifics of the 17 drainage areas. 18 MR. BIRMINGHAM: So it's your understanding as you 19 sit here today that Stockton East Water District is outside 20 the watershed of the Stanislaus River? 21 MR. PULVER: That would be correct hydrologically 22 speaking. 23 MR. BIRMINGHAM: On the Central Delta Water Agency, 24 is it outside of the watershed of the Stanislaus River? 25 MR. PULVER: That may not be the case. I think it's CAPITOL REPORTERS (916) 923-5447 133 1 more likely that that would be, hydrologically would be -- 2 MR. BIRMINGHAM: Isn't it below the confluence of the 3 San Joaquin River with the San Joaquin River? 4 MR. PULVER: The Central San Joaquin Water 5 Conservation -- 6 MR. BIRMINGHAM: The Central Delta Water Agency. 7 MR. PULVER: Oh, the Central Delta Water Agency, 8 excuse me, it's downstream. That's correct. 9 MR. BIRMINGHAM: You started to answer the question, 10 I believe, based upon the assumption that my question 11 related to the Central San Joaquin Water District. Is that 12 within the watershed of the Stanislaus River? 13 MR. PULVER: I believe it more likely is. But, 14 again, to check hydrologically we'd have to look at the 15 maps. 16 MR. BIRMINGHAM: Thank you, sir. Your testimony 17 makes reference to the contracts that are -- or the 18 contract, excuse me, that Stockton East Water District has 19 with the Bureau of Reclamation. Are you familiar with the 20 that contract? 21 MR. PULVER: In general, yes. 22 MR. BIRMINGHAM: Is it your understanding that that 23 is an interim contract? 24 MR. PULVER: That's correct, a contract for interim 25 water. CAPITOL REPORTERS (916) 923-5447 134 1 MR. BIRMINGHAM: Could you, please, explain what a 2 contract for interim water is? 3 MR. PULVER: That would -- 4 MR. BIRMINGHAM: It's correct, isn't it, 5 Mr. Pulver, that a contract for interim supply of water 6 means that it is not a firm supply? 7 MR. PULVER: That's correct. 8 MR. BIRMINGHAM: Thank you very much. I have no 9 further questions. 10 C.O. CAFFREY: Thank you, Mr. Birmingham. 11 Mr. Schulz. 12 MR. SCHULZ: Mr. Birmingham thought maybe we should 13 consult before we did this, but, nah. 14 MR. BIRMINGHAM: We don't consult about anything 15 else. 16 C.O. CAFFREY: Why start now. Go ahead, Mr. Schulz. 17 ---oOo--- 18 CROSS-EXAMINATION OF SAN JOAQUIN COUNTY 19 BY KERN COUNTY WATER AGENCY 20 BY CLIFF SCHULZ 21 MR. SCHULZ: Is it correct that -- Cliff Schulz for 22 the Kern County Water Agency. Is it correct that the 23 substance of your testimony is that you oppose the 24 extension of 95-6? 25 MR. PULVER: That's correct. CAPITOL REPORTERS (916) 923-5447 135 1 MR. SCHULZ: Could you describe the benefits that you 2 believe would include San Joaquin County if 95-6 was not 3 extended? 4 MR. PULVER: Yes. Maybe we ought to look at it from 5 the need, as I explained in my testimony, is there for all 6 opportunities for not losing opportunities to get 7 additional water supply for the central part of San Joaquin 8 County and also meeting the downstream requirements. 9 If there is more water being pumped out of the 10 Delta, which requires water to be released from New 11 Melones, then there would be an impact on those. 12 MR. SCHULZ: Do you believe if 95-6 is not extended 13 that there would be a difference in New Melones operation 14 than if 95-6 is extended? 15 MR. PULVER: Yes, I believe that. 16 MR. SCHULZ: Why do you believe that is so? What 17 terms and conditions -- let me start it out like this and 18 make it a little simpler instead of being quite so broad. 19 What water terms and conditions would prevail that 20 control the operation of New Melones if 95-6 is not 21 extended? 22 MR. PULVER: It's -- there would be additional water 23 required to meet dilution standards downstream which then 24 would make less water available to those interests within 25 San Joaquin County who would like to divert water from the CAPITOL REPORTERS (916) 923-5447 136 1 Stanislaus. 2 MR. SCHULZ: So you believe that the language of 95-6 3 requires increase in releases for New Melones, or Vernalis 4 water quality? 5 MR. PULVER: Yeah, I believe that's the impact of the 6 Order. 7 MR. SCHULZ: Are you asking that Decision 1422 be 8 modified through this proceeding? 9 MR. PULVER: No, I'm not. 10 MR. SCHULZ: So you would agree that the permit terms 11 and conditions in 1422 would remain in effect requiring 12 certain water quality to be maintained at Vernalis? 13 MR. PULVER: Yes, that's correct. 14 MR. SCHULZ: And it's the difference -- you believe 15 there's a difference between water quality under 95-6 that 16 would have to be maintained and Decision 1422? 17 MR. PULVER: Yes, I do. 18 MR. SCHULZ: Okay. This is more of a question that 19 came out of the opening statement but, perhaps, Mr. Pulver, 20 you can answer it as the witness. It sounded a great deal 21 like San Joaquin County's objection was really to the 19 -- 22 excuse me, to the Water Quality -- 1995 Water Quality 23 Control Plan rather than 95-6. Would you agree or disagree 24 with that statement? 25 MR. PULVER: I'd agree that's correct. CAPITOL REPORTERS (916) 923-5447 137 1 MR. SCHULZ: You understand that this proceeding has 2 not been noticed for modification of the plan? 3 MR. PULVER: I understand, yes. 4 MR. SCHULZ: Thank you. That's all I have. 5 C.O. CAFFREY: Thank you, Mr. Schulz. 6 MR. GALLERY: Dan Gallery. May I ask a couple 7 questions? 8 C.O. CAFFREY: Yes, you may, Mr. Gallery. 9 ---oOo--- 10 CROSS-EXAMINATION OF SAN JOAQUIN COUNTY 11 BY CAMP FAR WEST IRRIGATION DISTRICT, ET AL. 12 BY DANIEL F. GALLERY 13 MR. GALLERY: Mr. Pulver, Mr. Birmingham asked you if 14 you were familiar with the fact that San Joaquin County 15 requested that some salinity control at Vernalis when 16 Decision 14 -- in the hearings on the Bureau's application 17 for New Melones. 18 Do you recall that question? 19 MR. PULVER: Yes, I do. 20 MR. GALLERY: And it was to the effect, as I gathered 21 that, that the County was asking for some salinity 22 protection at Vernalis out of the New Melones Project. Do 23 you recall that at the time of those hearings the Bureau of 24 Reclamation projected that there would be a conservation 25 yield out of New Melones in addition to water salinity at CAPITOL REPORTERS (916) 923-5447 138 1 Vernalis of 180,000 acre feet per year for use by customers 2 of the project? 3 MR. PULVER: That was my understanding. 4 MR. GALLERY: Thank you. That's all I have. 5 C.O. CAFFREY: Thank you, Mr. Gallery. Do any of the 6 staff wish to cross-examine this witness? 7 Mr. Howard? 8 ---oOo--- 9 CROSS-EXAMINATION OF SAN JOAQUIN COUNTY 10 BY STAFF 11 BY MR. THOMAS HOWARD 12 MR. HOWARD: Yeah, I have a quick question. In the 13 D-1422 the water quality objective at Vernalis was 500 14 parts per billion on a year-round basis. In 95-6 the water 15 quality objective was .7 millimhos per centimeter from 16 April through August; and one millimhos per centimeter from 17 September through March. As I understand your testimony 18 you feel that there's a difference in the quantity of water 19 necessary to meet those two objectives; is that correct? 20 MR. PULVER: That's correct. 21 MR. HOWARD: And Order 95-6, I believe we cited 22 testimony from John Renning who was an engineer for the 23 Bureau saying that he felt that there was no substantial 24 difference between water required to meet those two sets of 25 objectives. Do you have any comment on that testimony CAPITOL REPORTERS (916) 923-5447 139 1 from -- that we've cited in Order 95-6? 2 MR. PULVER: I guess I don't, but I would certainly 3 look at that very carefully to make certain that that was 4 the case with the total operation and in comparison of 5 those applied standards. 6 MR. HOWARD: Thank you. 7 C.O. CAFFREY: All right. Thank you, Mr. Howard. 8 Any cross-examination of this witness from the Board 9 Members? 10 C.O. STUBCHAER: No. 11 C.O. CAFFREY: All right, nothing. Mr. Shephard, you 12 wish to offer redirect? 13 MR. SHEPHARD: Yes, I have one or two questions. 14 C.O. CAFFREY: All right, sir. 15 ---oOo--- 16 REDIRECT EXAMINATION OF SAN JOAQUIN COUNTY 17 BY THOMAS J. SHEPHARD, SR. 18 MR. SHEPHARD: You talked about whether or not 19 Stockton East and Central, in response to questions, were 20 within the watershed of the Stanislaus River. And the 21 statute as was cited in your testimony indicates that it 22 provides that the -- it is within the watershed to receive 23 the protection, or which is to be conveniently served 24 therefrom. 25 Is it possible to serve Central San Joaquin and CAPITOL REPORTERS (916) 923-5447 140 1 Stockton East conveniently from the Stanislaus River? 2 MR. PULVER: Quite clearly, yes. 3 MR. SHEPHARD: Why is that so? 4 MR. PULVER: There are facilities available to 5 provide that service. 6 MR. SHEPHARD: Could you describe that briefly? 7 MR. PULVER: There is diversion at the Stanislaus -- 8 at the Goodwin Diversion Dam, which carries water through 9 an tunnel, conveys water by two creek ways and canal 10 systems to deliver water to both the Central San Joaquin 11 Water Conservation District and the Stockton Water 12 District. 13 MR. SHEPHARD: Thank you. I have no further 14 questions. 15 C.O. CAFFREY: All right. Thank you, Mr. Shephard. 16 Do any of the other parties wish to recross-examine this 17 witness? Mr. Birmingham. I know Mr. Birmingham knows this 18 well, but just a reminder to the Board Members and 19 everybody, recross is limited to the scope of -- 20 C.O. STUBCHAER: Redirect. 21 C.O. CAFFREY: -- redirect, be sure I say it right. 22 Go ahead, Mr. Birmingham. 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 141 1 ---oOo--- 2 REDIRECT EXAMINATION OF SAN JOAQUIN COUNTY 3 BY WESTLANDS WATER DISTRICT 4 BY THOMAS W. BIRMINGHAM 5 MR. BIRMINGHAM: Mr. Pulver, you made reference in 6 response to Mr. Shephard's questions to the facilities that 7 were constructed in order to export water from the 8 watershed of the Stanislaus River for delivery to Stockton 9 East Water District and Central San Joaquin Water District. 10 Is that correct? 11 MR. PULVER: That's correct. 12 MR. BIRMINGHAM: And your testimony makes reference 13 to the cost of those facilities; is that correct? 14 MR. PULVER: I don't recall specifically, but -- 15 MR. BIRMINGHAM: Do you know how much it costs to 16 construct those facilities? 17 MR. PULVER: Approximately 60 million dollars. 18 MR. BIRMINGHAM: And that was a cost incurred by 19 Stockton East Water District? 20 MR. PULVER: It's -- the actual repayment of the 21 bonds for the project is through the leadership of the 22 Stockton East Water District repaid by the water users in 23 the Stockton Metropolitan Area, the City of Stockton Cal 24 Water and County service areas within the two metropolitan 25 areas and then a wheeling charge is paid then by the CAPITOL REPORTERS (916) 923-5447 142 1 Central San Joaquin Water Conservation District for the 2 delivery of the water. 3 MR. BIRMINGHAM: And is it correct that Stockton East 4 Water District incurred that cost and undertook those 5 obligations based upon an interim contract with the Bureau 6 of Reclamation? 7 MR. PULVER: That's correct. And understanding 8 Central San Joaquin's side, firm contract as part of the 9 service that provided to the facilities. 10 MR. BIRMINGHAM: Central San Joaquin's contract has 11 both an interim supply and firm supply? 12 MR. PULVER: That's correct. 13 MR. BIRMINGHAM: What is the component of the firm 14 supply in the Central San Joaquin contract? 15 MR. PULVER: It's 49,000 acre feet. 16 MR. BIRMINGHAM: And what is the increment of the 17 interim supply, or nonfirm supply? 18 MR. PULVER: It's approximately 30,000 acre feet. 19 MR. BIRMINGHAM: Thank you very much. No further 20 questions. 21 C.O. CAFFREY: Thank you, Mr. Birmingham. Any other 22 parties wishing to recross-examine? All right. Staff wish 23 to recross-examine the witness? 24 MS. LEIDIGH: No. 25 C.O. CAFFREY: Anything from the Board on CAPITOL REPORTERS (916) 923-5447 143 1 recross-examination? All right. Thank you very much, 2 gentlemen. I think this would be the time -- time out. 3 Off the record. 4 (Off the record from 1:47 p.m. to 1:49 p.m.) 5 C.O. CAFFREY: Back on the record. Mr. Shephard? 6 MR. SHEPHARD: Yes. 7 C.O. CAFFREY: We're back on the record. Excuse me. 8 MR. SHEPHARD: Yes, Mr. Chairman, I was kindly 9 reminded by someone that I had not offered the 12 exhibits 10 into evidence, and I would do that at this time. 11 C.O. CAFFREY: And this is the time. Is there any 12 objection to accepting into evidence the exhibits that 13 Mr. Shephard identified at the beginning of the 14 presentation of his case? 15 MR. SHEPHARD: Subject to your normal rules of 16 evidence. 17 C.O. CAFFREY: Thank you, sir. Any objection? All 18 right, we accept your exhibits, Mr. Shephard. Thank you 19 very much. 20 All right. South Delta Water Agency, 21 Mr. Herrick. Good afternoon, again, sir. Welcome. 22 MR. HERRICK: Good afternoon, Mr. Chairman and Board 23 Members. This is John Herrick counsel for South Delta 24 Water Agency. I have two witnesses here and three that 25 haven't shown up. I would ask that assuming this runs CAPITOL REPORTERS (916) 923-5447 144 1 through 5:00, I will have them here at 9:00 a.m., and 2 whether you can squeeze them in or not I'll certainly try 3 to do that, if that's okay? 4 C.O. CAFFREY: Well -- 5 MR. HERRICK: If would you like to postpone our 6 presentation -- 7 C.O. CAFFREY: We like to be as accommodating as 8 possible. Would it be easier for you if we waited until 9 your witnesses are available and just dispense with yours 10 for the moment and move on the Central Delta? 11 MR. HERRICK: Yes. I don't want to interfere with 12 anybody else. That would make a more cogent presentation. 13 C.O. CAFFREY: Would that be a good one, 14 Mr. Nomellini? 15 MR. NOMELLINI: That's fine with us. 16 C.O. CAFFREY: All right, why don't we try that. I 17 mean, at the rate we're going, I don't think we'll finish 18 this today, but if your witnesses don't show up we would 19 just recess until tomorrow morning and finish tomorrow with 20 your -- 21 MR. HERRICK: I appreciate that. And I guarantee 22 they'll all be here in the morning. 23 C.O. CAFFREY: Okay. Thank you, Mr. Herrick. 24 MR. HERRICK: Thank you very much. 25 C.O. CAFFREY: All right. Mr. Nomellini, sir. Good CAPITOL REPORTERS (916) 923-5447 145 1 afternoon. Welcome again. 2 ---oOo--- 3 CASE IN CHIEF 4 BY CENTRAL DELTA WATER AGENCY, et al. 5 BY DANTE JOHN NOMELLINI 6 MR. NOMELLINI: I'd like to make a brief opening 7 statement at the beginning of our case and then I'd like to 8 be able to use overheads -- 9 C.O. CAFFREY: Absolutely. 10 MR. NOMELLINI: -- as part of our presentation. And 11 I don't know if you trust me with the machinery or not. 12 C.O. CAFFREY: We'll get you some help. 13 MR. NOMELLINI: All right. First of all, as I stated 14 this morning, we continue to be concerned with the 15 processes of the Board. And I would like to and will call 16 as witnesses Jerry Jones and Walt Pettit to set forth into 17 the record and for the Board the staff involvement in these 18 processes. And I want to show you how your rules are 19 interpreted and are being applied. 20 With regard to 95-6 and, of course, you're 21 probably realizing you're hearing somewhat inconsistent 22 testimony on San Joaquin interests, our upper river 23 interests are different than our lower river interests and 24 in some respects we have similar positions. And in others 25 we do not. CAPITOL REPORTERS (916) 923-5447 146 1 If 95-6 is extended we believe it should be 2 changed. In 95-6 it should be remembered that other people 3 have addressed it, it's a decision to coordinate, or 4 eliminate troublesome terms that appeared in D-1485. It is 5 not the mandate on the Bureau and the State to meet the 6 1995 Water Control Plan. 7 What it does is it clears the path, and I think 8 your people, or the staff explained it, that it was a 9 mechanism that was necessary in order for the Bureau to 10 continue to agree to meet the 1995 Water Quality Control 11 Plan. So if there's anything that binds the Bureau and the 12 State to meeting the 1995 Water Quality Control Plan it 13 isn't 95-6 it's the Delta Accord, or whatever the deal was 14 as a part of the Delta Accord. 15 So if this Board expects to bind the parties, and 16 maybe it isn't necessary if there's a clear commitment from 17 the parties to some particular operations, then it ought to 18 be firmed up in 95-6. 19 The standards that we think would be applicable 20 without 95-6, are D-1485 plus the biological opinion for 21 winter-run salmon and the biological opinion for Delta 22 smelt that preexisted the Delta Accord. And we have a 23 problem understanding clearly why the basic base case of 24 D-1485 plus upstream winter-run salmon requirements, which 25 we understand are temperature requirements in the San CAPITOL REPORTERS (916) 923-5447 147 1 Joaquin River, are used as a base-line for comparison to 2 all of these processes that we're going through now. And 3 Jerry Johns can shed some light on it, I hope, in the 4 cross-examination. 5 But as I understand it the base line of D-1485 6 plus only the temperature requirements in the Sacramento 7 River displays the greatest possible impact on exports in 8 that if we truly use the conditions that existed back at 9 that time there would either be no impact on exports and we 10 think exports would have been enhanced by reason of 95-6 11 and the Delta Accord. Now, we hope to shed some light on 12 that aspect in the course of the cross-examination and 13 possibly in the direct testimony. 14 We think a number of changes need to be made if 15 95-6 is going to go forward, and again, it doesn't mandate 16 it -- it by itself does not mandate. Somebody else said in 17 their statements that you have to extend the Accord in 18 order to get the agreements to meet the standards that come 19 with it. And how you integrate that in 95-6, I haven't 20 seen in our documents, you know, setting forth the 21 structure of the issue. 22 We think that associated with the Bureau's 23 operation, which is export from the Delta, there is a block 24 of water that's being delivered outside the place of use of 25 the permits to the Bureau in the environmental documents of CAPITOL REPORTERS (916) 923-5447 148 1 the Bureau which set that forth rather clearly. We view 2 that as an illegal diversion of water. 3 So if you're going to extend D -- I mean 95-6 4 which allows for make-up pumping to be performed by the 5 State for the benefit of the Bureau, we think that you 6 should curtail the Bureau's total exports by the quantity 7 of water being delivered outside the permitted place of 8 use. And we think that is somewhere in the neighborhood of 9 a couple 100,000 acre feet. We, certainly, do not think 10 that the State should be allowed to wheel water for illegal 11 service by the Bureau outside of the permitted place of 12 use. So that's a second part of it. 13 The Bureau may not be able to do it anyway, but I 14 mean we shouldn't let the State go ahead and help them pump 15 it over there for this illegal use, which we consider to be 16 the part that is delivered outside the place of use. We 17 also have found, and it appears from those documents and we 18 intend to show that some of that illegal diversion goes to 19 areas that contribute to drainage problems in the San 20 Joaquin. 21 So when we see it, we see the Bureau, they run a 22 little rough shot over us anyway, but they're illegally 23 diverting. This water goes back into the river, causes 24 salinity problems, which then demands more releases from 25 New Melones, which aren't there because those are being CAPITOL REPORTERS (916) 923-5447 149 1 used to meet the fishery requirements. So it compounds our 2 problems. In other words, if the illegal diversions were 3 to areas that didn't drain into the San Joaquin River area 4 our problem would be less, we still wouldn't like it, but 5 it would lessen in some way by reason of the fact that 6 there's no additional delivery contributing to the drainage 7 problem. 8 Now, on 95-6 our perception of what really went on 9 was that 95-6 facilitated implementation of the Delta 10 Accord, or the Principals Agreement. The Principals 11 Agreement -- and the part you heard me yap about at some 12 length was what I called the "Dirty Deal." It was the 13 Attachment B. And it basically said that the water for 14 meeting the fishery flow requirements was suppose to come 15 from New Melones. And that there would be no diminution in 16 the export quantities of water, no net loss to the 17 exporters. 18 Which means that the fishery problems, in our 19 view, which are in a major part caused by the pumping are 20 being solved with water taken away from New Melones which 21 would have been delivered to Stockton East and Central in 22 the areas of origin for the benefit of the exports. And we 23 consider that to be a violation. We still do of the 24 Watershed Protection Act for which we think you have an 25 affirmative obligation to carry out your decision, of CAPITOL REPORTERS (916) 923-5447 150 1 course, in 95-6, that's what they are. Once the water is 2 released for fish it's abandoned. If they just happen to 3 pick it up and export it to the Delta, so what? We view it 4 as an agreement in the Delta Accord to take the water away 5 from the areas of origin so that export levels could be 6 maintained to the export service area south of the Delta. 7 So we would like to see, now that they've done 8 that for three years, it's their turn. They've taken away 9 from the areas of origin for three years, now let's take it 10 away from the exporters for three years. Some of that 11 water that is provided by the Bureau comes from New 12 Melones, some of it was purchased from willing sellers. 13 There's nothing that prohibits purchases from willing 14 sellers in export service areas and have that water 15 released into the San Joaquin, or even from the Friant 16 Service Area and have it released in the San Joaquin. 17 So we think to do equity on an interim basis you 18 have to say, okay, we lived up with -- you guys went along 19 with or let them go along with the Delta Accord for three 20 years, it was a three-year agreement until the end of the 21 year. We would like to see that reversed that the water 22 comes from exports now, which we think it should, for the 23 next interim period. 24 We also believe that there should be a positive 25 net-daily downstream flow in the San Joaquin River between CAPITOL REPORTERS (916) 923-5447 151 1 Old River and Turner Cut. And that really is a question of 2 what happens with the pumping rates versus the flows in the 3 river and sometimes whether or not there's a barrier there. 4 We wanted to know that that was assured so that we would 5 always have the natural flow of the San Joaquin running by 6 our clients which are down below Old River in that stretch 7 of the San Joaquin where we experience reverse flow. 8 We also are not happy with the switch on the 9 Vernalis Water Quality Standards. And we talked about it 10 before. The switch to point seven and the one -- the 11 irrigation season really runs from March through September. 12 So we end up -- and not all years are the same, but we end 13 up with what we consider to be worse water quality, worse 14 than the 500 parts before in March and September. We think 15 that ag standard should extend to those months. 16 The last point we want to talk about is that we 17 think when this extra pumping is being done, which it is, 18 when one pumping plant is down the other one runs some 19 more, back and forth, sometimes we're moving pumping from 20 the spring runs through the summer, we run into the water 21 level problems. And although we can't tell you that you 22 should stop the pumping at any given particular level, we 23 do think it's important to have a commitment somewhere here 24 that says: When a water level problem is created the 25 exporters will adjust their pumping. CAPITOL REPORTERS (916) 923-5447 152 1 In other words, kind of a narrative commitment 2 that there will be this effort to curtail the pumping so 3 you don't deprive our diverters of adequate water levels in 4 order to operate the siphons. And in the South Delta it 5 would be the pumps. And, of course, some of the South 6 Delta problem is solved by the barriers, the South Delta 7 barriers, but not all of the problems are solved even with 8 those barriers. And, of course, those barriers aren't 9 necessarily in place. So that's kind of a general overview 10 of where we kind of want to go on Phase I. I would like to 11 call, if I may first, Jerry John. Is Jerry still here? 12 Oh, he's back. 13 C.O. CAFFREY: Mr. Johns? 14 MR. JOHNS: Yes. 15 C.O. CAFFREY: You've been called as a witness. 16 MR. JOHNS: I haven't been sworn. 17 C.O. CAFFREY: All right. Please, raise your right 18 hand. Do you promise or affirm to tell the truth in these 19 proceedings? 20 MR. JOHNS: I do. 21 C.O. CAFFREY: Thank you. Please, be seated. You 22 may proceed, Mr. Nomellini. 23 MR. NOMELLINI: Thank you. Mr. Johns, how long have 24 you been an employee of the State Water Resources Control 25 Board? CAPITOL REPORTERS (916) 923-5447 153 1 MR. JOHNS: Since about 1973. 2 MR. NOMELLINI: And what is your present position 3 with the Board? 4 MR. JOHNS: The Assistant Division Chief for the 5 Division of Water Rights. 6 MR. NOMELLINI: And I took your deposition -- 7 C.O. STUBCHAER: Pull the mic up, Jerry. 8 MR. JOHNS: Okay. 9 MR. NOMELLINI: I took your deposition sometime back; 10 is that correct? 11 MR. JOHNS: That's correct, in a legal matter. 12 MR. NOMELLINI: Right. And I asked you at that time 13 what you understood to be the rules that apply to staff 14 with regard to ex parte communication. Do you recall a 15 question of that type? 16 MR. JOHNS: Yes. 17 MR. NOMELLINI: All right. Could you explain to the 18 Board what your understanding is as to the rules for ex 19 parte communications? 20 MR. JOHNS: Well, if I understand the ex parte 21 communication it applies directly to the presiding officer 22 in a hearing. And it precludes direct contact, or indirect 23 contact with the parties on matters before the Board during 24 that -- during the pendency of that hearing. Typically 25 what we try to avoid is any sort of indirect contact with CAPITOL REPORTERS (916) 923-5447 154 1 the parties on subject matters related to the proceedings 2 before to the Board. 3 MR. NOMELLINI: When you say, "We try to avoid," 4 you're talking about staff? 5 MR. JOHNS: Yes. 6 MR. NOMELLINI: All right. So you try and avoid 7 contacts when a matter is pending; is that correct? 8 MR. JOHNS: That's correct. 9 MR. NOMELLINI: All right. And when is a matter 10 pending for the purpose of constraining staff from these 11 types of contacts? 12 MR. JOHNS: You -- I want to make sure you understand 13 when I'm talking about contact, I'm talking about -- 14 MS. LEIDIGH: I'm going to interpose an objection. 15 This calls for a legal conclusion. And I don't think the 16 witness is an attorney. 17 MR. NOMELLINI: I just want his understanding. You 18 have an understanding. You gave it to me before. 19 C.O. CAFFREY: Did you give the understanding in the 20 deposition? 21 MR. JOHNS: Yes. 22 C.O. CAFFREY: Was there an objection at that time? 23 MR. JOHNS: I think there was. 24 MS. LEIDIGH: Yeah, I think it's a standing 25 objection. CAPITOL REPORTERS (916) 923-5447 155 1 C.O. CAFFREY: All right. I'll rule you don't have 2 to answer the question. 3 MR. NOMELLINI: All right. Is there a distinction 4 between when a notice of hearing goes out and when there is 5 no notice of hearing? 6 MR. JOHNS: In my mind, yes. 7 MR. NOMELLINI: All right. And what is your 8 understanding of that? 9 MR. JOHNS: Typically what we try to do is avoid 10 contacts with parties related to a hearing subject once the 11 hearing is noticed. 12 MR. NOMELLINI: Okay. So once the hearing is noticed 13 as far as communications with parties to the proceeding 14 those have to be in the -- in the hearing, or in a public 15 meeting rather than in some type of private meeting? 16 MR. JOHNS: I think that the EPA talks specifically 17 about matters before the Board in the hearing. We have 18 contacts with a lot of parties on other related matters. 19 For example, today I was in a Club Fed meeting where we 20 were talking about other matters not related to this 21 proceeding, but a lot of the parties in this proceeding 22 were there. 23 We still have business to conduct as staff. And 24 we do not see -- and so long as we limit our discussions to 25 things that are not before the Board, we think that that's CAPITOL REPORTERS (916) 923-5447 156 1 appropriate. 2 MR. NOMELLINI: All right. With regard to the water 3 rights proceedings that we are conducting now, when were 4 you first aware that there would be such a water rights 5 proceeding? 6 MR. JOHNS: This proceeding? 7 MR. NOMELLINI: Yes. 8 MR. JOHNS: In terms of the notice when this 9 proceeding would take place, the notice went out in 10 December. 11 MR. NOMELLINI: Okay. And prior to that time did you 12 have any understanding that there would, ultimately, be a 13 water rights proceeding of this type? 14 MR. JOHNS: From about 1978 we knew that there would 15 be another water right proceeding of the Bay-Delta, yes. 16 MR. NOMELLINI: And particularly since 1986 when we 17 had the Racanelli Decision, right? 18 MR. JOHNS: The Board classically over the years has 19 held Bay-Delta proceedings since the 1960s. 20 MR. NOMELLINI: All right. So is it fair to state 21 that the way the Board is operating in the Delta it is 22 clearly anticipated that there will be in the future a 23 water right proceeding and that that anticipation existed 24 for you since about 1976? 25 MR. JOHNS: The actual topic matters and the -- and CAPITOL REPORTERS (916) 923-5447 157 1 the issues in that hearing were not known to us until the 2 notice went out. 3 MR. NOMELLINI: So you're saying you don't know the 4 scope -- you didn't know the scope of what a water right 5 proceeding might entail until the actual notice went out? 6 MR. JOHNS: That's correct. 7 MR. NOMELLINI: All right. Since 1986 you knew that 8 the question of allocation of the burden for Delta water 9 quality standards among other water right holders was in 10 issue, didn't you? 11 MR. JOHNS: Since when? 12 MR. NOMELLINI: 1986, the Racanelli Decision. 13 MR. JOHNS: Yes. 14 MR. NOMELLINI: So you had a pretty good idea that 15 the water right allocations were a water rights subject 16 that you would encounter in the future? 17 MR. JOHNS: Yes. 18 MR. NOMELLINI: All right. Now, in view of that, I 19 gather that you did not make any change, or adjustments to 20 your conduct that would preclude contact with parties 21 relative to water allocations pertaining to the Delta until 22 there was a notice of hearing in 95-6? 23 MR. JOHNS: Again, the issue is how the information 24 is communicated to the Board. We're very careful not to 25 communicate with the Board on matters that are the subject CAPITOL REPORTERS (916) 923-5447 158 1 of the hearing outside the public forum, or outside the 2 deliberating process when we're actually working with the 3 Board on that process. 4 But in terms of our contacts with the parties, we 5 have a Water Quality Control Plan that we produced. We had 6 an EIR that we had to produce, that requires contacts with 7 the parties on a staff basis. And in order for us to 8 comply with the biological opinions and the consultation 9 processes that is required by law under the Endangered 10 Species Act and the California Environmental Quality Act 11 we have to prepare environmental documents for the Board to 12 consider in those processes and that requires us to contact 13 parties. 14 MR. NOMELLINI: Okay. I have a number of overheads 15 that I want to use to facilitate some questions on this 16 matter. 17 MS. LEIDIGH: Mr. Nomellini, were these overheads 18 presubmitted, or are they somewhere in your package? 19 MR. NOMELLINI: These were not presubmitted. I'm 20 going to use this as an outline. They are a compilation 21 from the exhibits that were submitted from the calendar of 22 Walter Pettit. 23 MS. LEIDIGH: Are you willing to make these available 24 to all parties -- 25 MR. NOMELLINI: Oh, absolutely. CAPITOL REPORTERS (916) 923-5447 159 1 MS. LEIDIGH: -- in hardcopy? Do you have hardcopies 2 with you? 3 MR. NOMELLINI: No. 4 MS. LEIDIGH: I think we need to have them very 5 promptly. 6 MR. NOMELLINI: Like by tomorrow? 7 MS. LEIDIGH: Yes. 8 C.O. CAFFREY: Mr. Nomellini, can you provide 9 hardcopies to the other parties by tomorrow? 10 MR. NOMELLINI: Absolutely. 11 C.O. CAFFREY: All right, sir, you may proceed. 12 MR. NOMELLINI: Do you want to delay going through 13 these? I'm going to use them as a basis for questions, 14 though not necessarily as evidence itself. 15 C.O. CAFFREY: Do have an objection, Ms. Leidigh, if 16 Mr. Nomellini provides this information in hardcopy to 17 everybody tomorrow? 18 MS. LEIDIGH: I want to see what it is. Let me -- 19 let me think about it just a second. 20 C.O. CAFFREY: Go ahead, Ms. Leidigh. You better 21 come around. Time out. 22 (Off the record from 2:12 p.m. to 2:13 p.m.) 23 C.O. CAFFREY: We're back on the record. This 24 appears to be a compilation of a late exhibit that you 25 submitted just the other day. And I'm a little concerned, CAPITOL REPORTERS (916) 923-5447 160 1 and I also discussed this with Ms. Leidigh who is acting as 2 counsel not only to the Board but to witnesses, concerned 3 that other parties really have not had an opportunity to 4 see either all the pages that you submitted as a late 5 evidentiary exhibit, that those are coming from the various 6 records of Mr. Pettit as I understand it, let alone not 7 having a chance for any of us to see this compilation, I'm 8 inclined not to take this up today. 9 And are there any objections from the audience 10 with regard to the concerns I've just expressed? Nobody 11 seems to be concerned about it. Do you object, 12 Ms. Leidigh, to proceeding? 13 MS. LEIDIGH: I do have some concerns. 14 C.O. CAFFREY: I think we just can't hear you. 15 MS. LEIDIGH: I'm sorry. I do have some concerns 16 about this, because the underlying document that this is 17 based on was submitted to the Board yesterday. And I 18 haven't even had a chance to look through it again really 19 closely. And I would suspect that the witness hasn't 20 either since it wasn't from his deposition. So it's 21 somewhat of a surprise. Now, if nobody has any objection, 22 I'm not going to object. 23 C.O. CAFFREY: Mr. Schulz, do you have an objection? 24 MR. SCHULZ: More of a suggestion, Mr. Chairman. I 25 would like to see the hearing move along and not get broken CAPITOL REPORTERS (916) 923-5447 161 1 up. I don't have any objection to the direct on these as 2 long as we can, perhaps, do the cross after we have had a 3 chance to get a copy of the documents and a chance to 4 review them. That means -- 5 MR. NOMELLINI: I have no objection to that. 6 MR. SCHULZ: Could you have somebody prepare them 7 this afternoon while this testimony is going on and deliver 8 us copies by 5 o'clock? 9 C.O. CAFFREY: Let me -- I appreciate your 10 suggestion, Mr. Schulz, but I'm not sure that's fair to 11 Counsel, or to the witness, because in order for him to 12 give his best answers he may need to examine this after a 13 while. So if we're going to put over the 14 cross-examination, I would be inclined to put over the 15 entire matter until tomorrow. 16 MR. SCHULZ: That's true. This isn't the usual 17 situation where the witness knows the exhibit and the other 18 parties don't. 19 C.O. CAFFREY: I appreciate your suggestion. I think 20 normally it would be a good one if the witness had seen the 21 information, but nobody else had. 22 MR. SCHULZ: Yeah. 23 C.O. CAFFREY: But I think in this instance it might 24 make more sense to set this over until some time tomorrow 25 after Ms. Leidigh has had an opportunity to look at the CAPITOL REPORTERS (916) 923-5447 162 1 material and hopefully after Mr. Johns has had an 2 opportunity and hopefully if you can provide copies either 3 late this afternoon, or first thing in the morning for 4 everybody else, Mr. Nomellini, to review the material. 5 MR. NOMELLINI: The calendars that are the basis for 6 this compilation have been sent out to all the parties. 7 C.O. CAFFREY: All right. 8 MR. NOMELLINI: And -- 9 C.O. CAFFREY: It's a rather thick package. 10 MR. NOMELLINI: Yeah, it's a thick package. And, of 11 course, Jerry has had those and Mr. Pettit since those 12 prior depositions, but other parties may not have had the 13 time to look at them. And I have no objection. I want to 14 present this to you, not at great length, but to show 15 you -- 16 C.O. CAFFREY: Sure. 17 MR. NOMELLINI: -- what transpired in the order of 18 whatever is the most reasonable and fair would be the way 19 to do it. 20 C.O. CAFFREY: Mr. Nomellini, if you could get copies 21 of this document, am I correct in assuming that it's merely 22 a guide -- 23 MR. NOMELLINI: Yeah, a compilation. 24 C.O. CAFFREY: -- to a thicker copy that you provided 25 to everybody? CAPITOL REPORTERS (916) 923-5447 163 1 MR. NOMELLINI: Right. 2 C.O. CAFFREY: If you could get this document to 3 Mr. Johns and Ms. Leidigh and all the other parties -- 4 MR. NOMELLINI: After our testimony, perhaps, I can 5 try to find a copy machine, or even after we close the 6 hearing today so I can have it first thing in the morning 7 for everybody. 8 C.O. CAFFREY: Mr. Stubchaer reminds and advises that 9 it really needs to be today. 10 MR. NOMELLINI: Okay. 11 C.O. CAFFREY: Because that gives them overnight. 12 MR. NOMELLINI: Right. 13 C.O. CAFFREY: Okay. 14 MR. NOMELLINI: I'll withdraw that one. 15 C.O. CAFFREY: Okay. 16 MR. NOMELLINI: And we'll wait until we get that 17 distributed and then we will follow up on that line of 18 questioning. 19 C.O. CAFFREY: All right. 20 MR. NOMELLINI: We have a volunteer to run the 21 copies. 22 C.O. CAFFREY: A volunteer to run the copies, is that 23 Mr. Zuckerman? 24 MR. ZUCKERMAN: No. 25 MR. NOMELLINI: He wants to get out of here. CAPITOL REPORTERS (916) 923-5447 164 1 C.O. CAFFREY: He just looks like Mr. Zuckerman. 2 MR. ZUCKERMAN: I haven't learned how to use a copy 3 machine, yet, much less a computer. 4 C.O. CAFFREY: Once we get this process underway, 5 Mr. Nomellini, do you wish to proceed with your case in 6 chief, other parts of it? 7 MR. NOMELLINI: Yeah, sure, unless you want to bounce 8 it an around. It doesn't matter to me. 9 C.O. CAFFREY: No, we can proceed. 10 MR. NOMELLINI: All I need is Jerry and Walt. 11 C.O. CAFFREY: Those are your only witnesses for your 12 cases in chief? 13 MR. NOMELLINI: No, for this exhibit. 14 C.O. CAFFREY: All right. 15 MR. NOMELLINI: For this data which I'm not going to 16 present right now. 17 C.O. CAFFREY: All right. 18 MR. NOMELLINI: Back on the record on other subjects? 19 C.O. CAFFREY: Yes, sir. 20 MR. NOMELLINI: All right. Jerry, with regard to the 21 Principals Agreement, what is your understanding as to the 22 no net loss provisions in the agreement? 23 MR. JOHNS: The agreement pretty much speaks for 24 itself. The wording is pretty plain. 25 MR. NOMELLINI: And that is -- what is your CAPITOL REPORTERS (916) 923-5447 165 1 understanding of it? 2 MR. JOHNS: I haven't looked at the agreement for 3 several years. And I haven't reviewed it recently, so I'd 4 have to look at it. 5 MR. NOMELLINI: Okay. Was it your understanding, in 6 general, that the exporters would not have to yield any 7 more water for endangered species than what was already 8 encompassed in meeting the 1995 water quality requirements 9 in the Accord? 10 MR. JOHNS: I think it's more complicated than that. 11 I think the wording itself is important. And you need to 12 go back and look at the wording specifically. 13 MR. NOMELLINI: Okay. You had indicated sometime 14 back that, in fact, there was no increase in exports as a 15 result of 95-6. Is that still your testimony today? 16 MR. JOHNS: John, can you refresh my recollection of 17 the nature of your question again? 18 MR. NOMELLINI: That 95-6 as adopted did not enable 19 an increase in exports from the Delta? 20 MR. JOHNS: I think it may have related to the 21 diversion -- points of diversion in 95-6. Is that what 22 you're talking about? 23 MR. NOMELLINI: That's part of it. But is there an 24 increase in exports that results from 95-6? 25 MR. JOHNS: Increase in the yield in any given CAPITOL REPORTERS (916) 923-5447 166 1 period, in any given month? What time frame are we talking 2 about? 3 MR. NOMELLINI: Any increase in exports on a yearly 4 average, let's say. 5 MR. JOHNS: 95-6 replaced the export requirements set 6 forth in D-1485. 1485 had a different formula for 7 addressing fishery impacts due to the exports than 95-6 has 8 in it. There are months of some years when 95-6 requires 9 less exports out of the estuary based on the formula that's 10 provided there. And there are some cases in some months of 11 some years when D-1485 would allow for more exports. So 12 it's more complicated than that. Month-to-month it changes 13 depending on how these things work. 14 MR. NOMELLINI: So if we had a full in the San 15 Joaquin River at Vernalis in April and May that was higher 16 than 6,000 cubic feet per second, 95-6 would allow a 17 greater export than D-1485, would it not? 18 MR. JOHNS: D-1485 -- as I recall in April, 1485 had 19 no limitations in exports. The limitations started in May. 20 So, again, it would depend on the -- 21 MR. NOMELLINI: On the month. Let's take May so 22 we're on the same page. The limitations in D-1485 were 23 6,000 total? 24 MR. JOHNS: In May, I think that's about right. I 25 haven't looked at it, again, for a while yet. CAPITOL REPORTERS (916) 923-5447 167 1 MR. NOMELLINI: The question is really -- and I think 2 you've answered it that there is a greater export available 3 under 95-6 during a wet period versus D-1485? 4 MR. JOHNS: What -- I'm not sure I'd agree with that. 5 MR. NOMELLINI: Okay. 6 MR. JOHNS: D-1485 has a different mechanism that 7 controls exports than in 95-6. 95-6 has a more expansive 8 set of months that exports are constrained in. And it 9 simply does it in a different fashion. And overall we feel 10 that the requirements set forth in 95-6 provides benefits 11 to the fishery beyond 1485. So, therefore, as I recall in 12 net, exports are reduced under the scenario that we're 13 operating under today than the scenarios that we would 14 operate under D-1485. 15 MR. NOMELLINI: Okay. If we go back to the base case 16 in the environmental report of D-1485 plus the 17 winter-run -- upstream winter-run salmon restrictions and 18 use that as a comparison to what the base case could have 19 been with the inclusion of the other ESA requirements, is 20 there a difference? 21 MR. JOHNS: Yeah. That's talked about in our 22 environmental document. 23 MR. NOMELLINI: All right. In fact, the 24 environmental report says, "Actions under the Federal ESA 25 of impacted water supplies to a similar extent has the CAPITOL REPORTERS (916) 923-5447 168 1 preferred alternative." 2 If the prefer alternative were compared by the 3 most recent actions of other agencies the comparison would 4 show no measurable impact on water supply. Is that your 5 statement? 6 MR. JOHNS: I'd have to look at that to see. 7 MR. NOMELLINI: Okay. 8 C.O. CAFFREY: For the record, Mr. Nomellini, I'm a 9 little confused. What are you reading from? 10 MR. NOMELLINI: That's from the environmental 11 document for the -- it's Appendix 1 of the Environmental 12 Report Water Quality Control Plan, May 1995. 13 MR. JOHNS: Okay. Where are you reading from, up 14 here? 15 MR. NOMELLINI: Yeah. 16 MR. JOHNS: Okay. 17 MS. LEIDIGH: Mr. Nomellini, is this one of your 18 exhibits? 19 MR. NOMELLINI: No. I'm just soliciting a question 20 of him whether he agrees with that statement. 21 MR. JOHNS: This is a different one than you had 22 before. This relates to the comparison between ESA actions 23 and the proposed Water Quality Control Plan. It doesn't 24 talk about D-1485. It says, "The actions under the Federal 25 ESA have impacted water supplies to a similar extent as our CAPITOL REPORTERS (916) 923-5447 169 1 alternative does." The '95 Plan and the ESA actions are 2 really quite similar. And it has no relationship to 3 D-1485. 4 MR. NOMELLINI: So you're saying that there is no 5 change in exports basically between the conditions that 6 preexisted the Delta Accord and what exists now under 95-6? 7 MR. JOHNS: That's not what this paragraph -- what 8 this footnote is talking about. 9 MR. NOMELLINI: Well, with regard to that question. 10 MR. JOHNS: All right. Give me the question again. 11 MR. NOMELLINI: All right. Is it your testimony that 12 there is no increase in exports from the conditions that 13 preexisted the Delta Accord to the conditions that exists 14 now with 95-6? 15 UNIDENTIFIED MAN: Objection. Ambiguous. 16 MR. JOHNS: I'm having a hard time understanding 17 exactly what you're getting at. 18 MR. NOMELLINI: All right. If 95-6, the 19 implementation of 95-6 -- well, with regard to the 20 implementation of 95-6, is there any increase in exports? 21 MR. JOHNS: There's a net loss in yield to the water 22 projects. And that results in -- overall results in net 23 loss of exporting capability by the two water projects. 24 MR. NOMELLINI: Okay. So your testimony is: That 25 there's a reduction in the net exports of the water CAPITOL REPORTERS (916) 923-5447 170 1 projects over the conditions that preexisted the Delta 2 Accord? 3 MR. JOHNS: Yes. Under the water quality -- under 4 the Water Rights Decision issued by the Board, yes. 5 MR. NOMELLINI: All right. Do you agree that if 6 Vernalis flows increase that exports increase? 7 MR. JOHNS: There's not a direct result there, but 8 under -- well, no, I wouldn't agree with that. 9 MR. NOMELLINI: Okay. It depends on where you get 10 the flow? 11 MR. JOHNS: Yeah. 12 MR. NOMELLINI: And if you get the flow from New 13 Melones and you get the flow from the east side tributary, 14 people under contract, you increase the water supply 15 available in the Delta for export? 16 MR. JOHNS: Any increase in inflow to the estuary is 17 going to increase water supply and that's available to the 18 water supply to incorporate if they can appropriate the 19 water. 20 MR. NOMELLINI: So if we have increase Vernalis flow 21 due to releases from New Melones and from the east side 22 tributaries then the amount of water available for export 23 will increase? 24 MR. JOHNS: In some cases that's possible. It 25 depends on capacity and a lot of other things. CAPITOL REPORTERS (916) 923-5447 171 1 MR. NOMELLINI: All right. And do you know whether 2 or not that results in there being more water exported? 3 MR. JOHNS: More water than what? 4 MR. NOMELLINI: Than without those flows from the 5 tributaries and from New Melones. 6 MR. JOHNS: You talking on a monthly basis or on an 7 annual basis? 8 MR. NOMELLINI: Let's talk on an annual basis to 9 start with. 10 MR. JOHNS: On an annual basis I still stand on the 11 basis that the operating criteria under 95-6 compared to 12 D-1485 there's a net decrease in export capabilities in the 13 estuary. So on the whole, 95-6 reduces exports not 14 increases exports. 15 MR. NOMELLINI: All right. Now, with regard to how 16 the no net loss with regard to the joint points of 17 diversion is calculated, do you understand how that's done? 18 MR. JOHNS: How it's calculated? 19 MR. NOMELLINI: Yeah. 20 MR. JOHNS: I have an understanding on how they try 21 to figure that out. 22 MR. NOMELLINI: Okay. But you haven't really looked 23 at it I gather? 24 MR. JOHNS: No. It's usually done by the operations 25 group and CalFed. And they try to figure that out. It's a CAPITOL REPORTERS (916) 923-5447 172 1 fairly complicated process. You might want to talk to one 2 of the operators. 3 MR. NOMELLINI: Okay. All right. That's all I have 4 of Jerry. 5 C.O. CAFFREY: All right. I think -- 6 MR. NOMELLINI: Do you want to do cross? 7 C.O. CAFFREY: Well, this is a little awkward, but 8 let me ask you this: You're going to call Mr. Pettit I 9 presume? 10 MR. NOMELLINI: Not until I get those exhibits. 11 C.O. CAFFREY: All right. Then what I think I'd like 12 to do is maybe put off the cross of this witnesses until 13 everybody has had a chance to see everything. And move 14 that over to tomorrow, too, or at a later date when we talk 15 to this witness. 16 MR. NOMELLINI: Okay. 17 C.O. CAFFREY: So does that mean you -- 18 MR. NOMELLINI: That means I'll go to Mr. Zuckerman 19 and go to our case in chief. And then we'll pick up Pettit 20 and Johns with those other exhibits and finish up on that 21 tomorrow. 22 C.O. CAFFREY: Okay. Sounds good. 23 MR. NOMELLINI: And we'll go into the cross and end 24 that part of the presentation. So at this time I call Tom 25 Zuckerman. CAPITOL REPORTERS (916) 923-5447 173 1 C.O. CAFFREY: Well, you're just a little bit ahead 2 of me there, Mr. Nomellini. If you don't mind I think it 3 probably makes some sense to take an afternoon break right 4 now. 5 MR. NOMELLINI: Okay. 6 C.O. CAFFREY: It's 2:30, let's take our 12-minute 7 break here and watch out for Mr. Stubchaer's beeper, 8 because you'll hear it when it's time to come back. 9 (Recess taken from 2:30 p.m. to 2:50 p.m.) 10 C.O. CAFFREY: Please, take your seats. We're going 11 to resume the hearing. Ms. Leidigh has asked to -- I guess 12 I'll call it asked for a reconsideration on a previous 13 ruling. 14 MS. LEIDIGH: Well, I'd like to ask for that, yes. 15 And it's been pointed out to me that the microphone at the 16 staff table doesn't seem to work. And people can't hear 17 me. So I'm over here instead. 18 I wanted to reconsider my objection earlier and 19 change it somewhat and ask for a different ruling with 20 respect to the exhibits that were submitted late. We 21 received a document from Mr. Nomellini yesterday adding a 22 pile of exhibits to his exhibit identification list for 23 Phase I. And it says that these Exhibits 16, 17, and 18 24 and 19 may be used in connection with the examination of 25 designated adverse witnesses in cross-examination. The CAPITOL REPORTERS (916) 923-5447 174 1 adverse witnesses are Walt Pettit and Jerry Johns, as we 2 can tell from the original notice of intent to appear 3 amendment one that was filed earlier. And it is dated 4 May 7th. 5 These new exhibits that we received yesterday, 6 although they were on a letter dated June 26th, are too 7 late under the Board's rules. The Board requires these 8 exhibits to be submitted the 1st of June and we just got 9 them the day before yesterday. We haven't had a chance to 10 look at them. We didn't know that Mr. Nomellini was going 11 to be asking questions about these things. And there 12 hasn't been any opportunity to prepare, or to think about 13 these various calendars and this additional letter that 14 were put in, or suggested to be put in. 15 And they are from a period -- these calendars are 16 from a period that was before the hearing notice was sent 17 out. The letter in the file is also from a period before 18 the hearing notice went out. I don't think they're 19 relevant to this proceeding and I think they're late. And 20 the Board's regulation forbids late testimony. It very, 21 certainly, sternly discourages it, if not totally forbids 22 it. I know there's been some exceptions in the past, but 23 it's not a good precedence to let exhibits come in this 24 late. 25 They're just not a couple of days late and these CAPITOL REPORTERS (916) 923-5447 175 1 are not exhibits that Mr. Nomellini just received either. 2 These calendars were sent to Mr. Nomellini in January. 3 C.O. CAFFREY: Ms. Leidigh, what was the deadline for 4 the submission -- or any other staff member, what was the 5 deadline for the submission of exhibits for Phase I? 6 MS. LEIDIGH: June 1. 7 C.O. CAFFREY: June 1. All right, please, continue. 8 MS. LEIDIGH: Yes. So what I'm asking the Board is 9 to exclude the exhibits that are attached to the June 26th 10 correspondence from the record and to not allow any 11 questions specifically on those exhibits. And to rule that 12 on the basis of their being irrelevant and on the basis of 13 their being late and, therefore, prejudicial to the other 14 parties including Board staff. 15 C.O. CAFFREY: All right. Thank you, Ms. Leidigh. 16 Just an easy afternoon for everyone. 17 MR. NOMELLINI: No problem. 18 C.O. CAFFREY: Anyone wish to comment on the motion 19 made by Ms. Leidigh? Mr. Brandt? 20 MR. NOMELLINI: I would like to respond to it? Will 21 I have a chance to respond to it? 22 C.O. CAFFREY: Yeah. 23 MR. NOMELLINI: Do you want to do it after? 24 C.O. CAFFREY: How long are you going to be -- go 25 ahead. Let's here from Mr. Brandt and then you can close. CAPITOL REPORTERS (916) 923-5447 176 1 MR. BRANDT: This will be very quick. Based on the 2 facts that I just heard from Ms. Leidigh, I would join in 3 the objection to the introduction and use of these exhibits 4 on behalf of the United States Department of Interior. 5 C.O. CAFFREY: All right. Anyone else wish to 6 comment? Mr. Nomellini, go ahead and comment. 7 MR. NOMELLINI: I didn't intend to use those as 8 exhibits. I simply was planning to use them as the basis 9 for questioning the witnesses. So as a matter of 10 questioning adverse witnesses, I'm just going to use those 11 documents for my own purpose to conduct that questioning. 12 Now, I, as a courtesy, sent them around to all the 13 parties so they'd have them. I didn't intend to introduce 14 them. So it's a matter of whether or not I'm going to be 15 allowed to ask questions with regard to whether or not 16 Walter Pettit met on a certain day, whether or not Jerry 17 Johns met on a certain day with so-and-so and so-and-so. 18 So I'll make an offer of proof, if you rule against me as 19 to what I intend to show by questioning the witnesses. 20 MS. LEIDIGH: Are you suggesting that you would ask 21 them questions without having the documents in front of 22 them and without -- 23 MR. NOMELLINI: I would ask them about the date and 24 the meeting. 25 MR. JACKSON: And then refresh their recollection CAPITOL REPORTERS (916) 923-5447 177 1 before they're called. 2 C.O. CAFFREY: So you're basically -- in other words, 3 for purposes of anybody else in the room, these documents 4 in effect don't exist? I mean they're not on the record. 5 So you're going to be asking questions, Mr. Nomellini, 6 where you cite a date and ask the witnesses if 7 such-and-such occurred as somebody in the audience just 8 said. And then we're going to have to decide as you ask 9 those questions if they're relevant or not. Is that the -- 10 MR. NOMELLINI: That's the other way of doing it, 11 yes. 12 C.O. CAFFREY: And, frankly, I am concerned about the 13 relevancy of this, because I'm not really sure where this 14 line of questioning is really leading us. I tried to be 15 accommodating to you but, frankly, I am a little bit at a 16 loss. 17 MR. NOMELLINI: Well, I thought that you had ruled 18 that I could bring this forth and present it. 19 C.O. CAFFREY: I have. 20 MR. NOMELLINI: What I want to do with this is 21 present to the Board what the staff understanding was of 22 the rules for ex parte communications and what their 23 conduct was. The relevance of this as it relates to 95-6 I 24 think is clear. We're dealing with an extension of 95-6. 25 So, basically, what I think the Board is considering, to CAPITOL REPORTERS (916) 923-5447 178 1 extend the Delta Accord in 95-6, would facilitate it. So I 2 think the same dealings that went on at that time, the same 3 involvement is relevant. 4 C.O. CAFFREY: All right. I'm going to consult with 5 Mr. Stubchaer. Time out. 6 (Off the record from 2:58 p.m. to 2:59 p.m.) 7 C.O. CAFFREY: All right. We're back on the record. 8 Mr. Nomellini, despite my earlier ruling I'm compelled and 9 motivated by Ms. Leidigh's arguments, I'm not going to 10 allow these documents as exhibits. And, of course, you've 11 already said that you were not choosing to submit them as 12 exhibits. 13 And because we issued the subpoenas at your 14 request, I'm going to allow you to go forward with the 15 questioning of Mr. Johns and Mr. Pettit, but we're going to 16 try to determine as we go the relevancy of your questions. 17 And we may ask you from time to time, "What is the 18 relevancy?" Ms. Leidigh, of course, it will be her 19 responsibility to object if she does not understand the 20 relevancy. She may get there before we do. But I'll ask 21 you to go ahead and proceed, unless you had completed your 22 questions of Mr. Johns. 23 MR. NOMELLINI: No. I was going to ask him about a 24 particular meeting. 25 C.O. CAFFREY: And because of this understanding, you CAPITOL REPORTERS (916) 923-5447 179 1 have that document. You're going to be asking him 2 questions. I don't expect them to have the document in 3 front of them, the total document in front of them as a 4 memory refresher. 5 Anybody want to offer some guidance on this? 6 Doesn't that become tantamount to an evidentiary exhibit? 7 So you're going to be asking them from their memory? 8 MR. NOMELLINI: Well, I should be able to give them a 9 document to refresh their recollection. 10 C.O. CAFFREY: Well, I'm not sure we can do that if 11 it's not in the evidentiary record. Ms. Leidigh, do you 12 have some counsel for us on this? 13 MS. LEIDIGH: Yeah, just a moment. 14 C.O. CAFFREY: We're off the record for a moment. 15 (Off the record from 3:01 p.m. to 3:03 p.m.) 16 C.O. CAFFREY: We're back on the record. And before 17 I hear from Ms. Leidigh, I'd like to acknowledge the 18 presence of the esteem Marc Del Piero Board Member. 19 MEMBER DEL PIERO: Bless you. 20 C.O. CAFFREY: And while we're at it, Mr. Del Piero, 21 may I also use that as a sedgeway to ask you when you 22 arrived did you have an opportunity to be briefed by 23 Ms. Leidigh with regard to the question that arose this 24 morning on conflict of interest and Board Member recusal? 25 MEMBER DEL PIERO: I was as to the, for lack of a CAPITOL REPORTERS (916) 923-5447 180 1 better term since I haven't seen it, about the motion that 2 was presented before the Board. I have not attended any 3 Water Policy Council meetings ever, nor have I ever 4 received any correspondence, nor have I ever been invited. 5 So as much as that was the nature of the petition for 6 recusal, it doesn't apply to me. So I'm, obviously, not 7 going to recuse myself. 8 C.O. CAFFREY: All right. Thank you very much, 9 Mr. Del Piero. Now, we're back to Ms. Leidigh with the 10 question before us with regard to the actual documents that 11 Mr. Nomellini has and should they be handed to the 12 witnesses, or should they testify from direct memory? 13 MS. LEIDIGH: Okay. My answer, my response to that 14 issue is that I would not object to Mr. Nomellini showing 15 one page to Mr. Johns as he indicated so that Mr. Johns can 16 see whether he recognizes the document and whether it might 17 refresh his memory and then to have the question asked of 18 him after having looked at a single page. 19 C.O. CAFFREY: Mr. Stubchaer? 20 C.O. STUBCHAER: Ms. Leidigh, would that page be the 21 original document and not this summary that we've been 22 looking at? 23 MS. LEIDIGH: There would be -- yes. The copy of the 24 calendar, not the summary. 25 C.O. CAFFREY: As a matter of fact, I'm going to CAPITOL REPORTERS (916) 923-5447 181 1 disallow the summary, because the summary is an 2 interpretation and a compilation on Mr. Nomellini's part. 3 So we will deal with the documents page-by-page as long as 4 they're relevant and they are used solely as just a 5 reference and a memory refresher. Again, as long as it's 6 all relevant. 7 MS. LEIDIGH: Yeah. I think I will have to interpose 8 a continuing objection on the basis of relevance, because I 9 do question whether or not this material is relevant given 10 the dates that are involved. But I will not ask that the 11 witness not be questioned on this. I think we can go ahead 12 and let him answer the question, but I still believe that, 13 for the record, I would like to question the relevance of 14 this document. 15 C.O. CAFFREY: All right. Thank you, Ms. Leidigh, 16 your objection is duly noted and on the record. I'd also 17 like to ask Mr. Stubchaer -- first of all, I'd like to 18 remind all of us that irrespective of even the relevancy of 19 some of these questions there's a time limit on direct 20 testimony. It's 20 minutes per witness and I was going 21 to -- are you going -- 22 MR. NOMELLINI: I wasn't going to take 20 minutes on 23 Mr. Johns or Pettit. 24 C.O. CAFFREY: That was a housekeeping matter and I 25 was wondering how far away we were. CAPITOL REPORTERS (916) 923-5447 182 1 C.O. STUBCHAER: A little more than halfway with 2 Mr. Johns. 3 C.O. CAFFREY: So you wanted to continue with 4 Mr. Johns then, Mr. Nomellini? 5 MR. NOMELLINI: Yeah. 6 C.O. CAFFREY: Okay. Thank you everybody for your 7 patience. Mr. Johns. 8 MR. NOMELLINI: Mr. Johns, was the notice of the 9 hearing for 95-6 given on March 3rd, 1995? 10 MR. JOHNS: I'd have to look at the notice. I 11 haven't gone back to refresh my memory on that. 12 MR. NOMELLINI: Okay. After that notice of hearing, 13 whenever it was, did you meet with any parties who had an 14 interest in that proceeding? 15 MR. JOHNS: It's likely we met with parties to talk 16 about various things unrelated to the proceedings at hand. 17 MR. NOMELLINI: All right. Do you recall a meeting 18 on March 31st, 1995, at 3:00 in the afternoon with Dave 19 Schuster and Tom Howard? 20 MR. JOHNS: Not specifically, no. 21 MR. NOMELLINI: Is it your testimony that you do not 22 recall the meeting, or that you did not have such a 23 meeting? 24 MR. JOHNS: I don't recall that specific meeting. 25 MR. NOMELLINI: Okay. That's all I have of CAPITOL REPORTERS (916) 923-5447 183 1 Mr. Johns. 2 C.O. CAFFREY: All right. Thank you, sir. Thank 3 you. Do you wish to -- you want to cross-examine an 4 individual? 5 C.O. STUBCHAER: Later, she said later. 6 MS. LEIDIGH: Later. 7 C.O. CAFFREY: Later, okay. Your next witness would 8 be to cross-examine as a panel later? 9 MR. NOMELLINI: That would be Mr. Pettit. 10 C.O. CAFFREY: Mr. Pettit. Mr. Pettit, I don't know 11 if you had an opportunity to take the oath yet. 12 MR. PETTIT: I did not yet, Mr. Chairman. 13 C.O. CAFFREY: All right. Do you promise to tell the 14 truth in these proceedings? 15 MR. PETTIT: I do. 16 C.O. CAFFREY: Thank you, sir. Please, be seated. 17 You may proceed, Mr. Nomellini. 18 MR. NOMELLINI: All right. Mr. Pettit, what is your 19 present position with the Board? 20 MR. PETTIT: I'm the Executive Director. 21 MR. NOMELLINI: Were you in such position on or about 22 March the 3rd, 1995? 23 MR. PETTIT: Yes, I was. 24 MR. NOMELLINI: Do you understand that the notice of 25 hearing for 95-6 was issued on March 3rd, 1995? CAPITOL REPORTERS (916) 923-5447 184 1 MR. PETTIT: I don't remember the exact date, but 2 that sounds about the right time frame. 3 MR. NOMELLINI: Now, with regard to that date and 4 subsequent thereto did you meet with any parties to the 5 proceedings involved in 95-6? 6 MR. PETTIT: Probably, yes. 7 MR. NOMELLINI: And do you have a specific 8 recollection as to any such meetings? 9 MR. PETTIT: No. I don't have any specific 10 recollection. 11 MR. NOMELLINI: All right. Did you meet with the 12 Water Policy Council on March 20th, 1995? 13 MR. PETTIT: Again, I don't remember specifically, 14 but I was meeting with the Council pretty frequently during 15 that time period. 16 MR. NOMELLINI: All right. And I'd like to hand you 17 a copy -- 18 C.O. CAFFREY: I'm sorry, Mr. Pettit, we have 19 individuals raising their hands in the back. I apologize 20 for the bad sound system, but you probably have to hold 21 that up next to you. 22 MEMBER DEL PIERO: That's the engineer's solution. 23 MR. PETTIT: I left my pocketknife at home. Excuse 24 me, Mr. Nomellini, I missed the question. 25 MS. LEIDIGH: It's working. CAPITOL REPORTERS (916) 923-5447 185 1 MR. NOMELLINI: Calling your attention to the date of 2 March 20th, 1995, in your calendar, does that refresh your 3 recollection as to that meeting? 4 MR. PETTIT: What time was that now? 5 MR. NOMELLINI: It would be 10 o'clock, Water Policy 6 Council. 7 MR. BIRMINGHAM: Objection. Mr. Nomellini is doing 8 more than asking this witness whether or not reference to 9 the calendar is refreshing his recollection. He's reading 10 from the calendar. I think the questions need to be posed 11 in the following fashion, "Do you remember?" If the answer 12 is, no, then Mr. Nomellini should be permitted to use 13 something to refresh his recollection and then ask: 14 Whether or not having reviewed the documents or other 15 material the witness's recollection has been refreshed. If 16 the witness says, "Yes, my recollection has been 17 refreshed," he can testify from his memory. But if his 18 recollection is not refreshed by review of the material, 19 then that's the answer to the question. 20 THE COURT REPORTER: I'm sorry, who are you? 21 MR. BIRMINGHAM: Thomas Birmingham 22 C.O. CAFFREY: You're absolutely correct. 23 MR. NOMELLINI: I adopt his question. 24 C.O. CAFFREY: And, Mr. Nomellini, I forgot your 25 original question, but I would ask you to please follow the CAPITOL REPORTERS (916) 923-5447 186 1 procedure. 2 MR. NOMELLINI: I'll do it in a shorter form. 3 MEMBER DEL PIERO: You've associated Mr. Birmingham 4 at this point? 5 MR. NOMELLINI: Yeah, come on up here. With regard 6 to refreshment of your recollection, is your recollection 7 refreshed with regard to that March 20th, 1995, date? 8 MR. PETTIT: The best way I can answer that is to say 9 that since the meeting is on my calendar and it is not 10 crossed out, I probably attended the meeting. I don't have 11 any recollection of the substance of the meeting. 12 MR. NOMELLINI: All right. Calling your attention to 13 March 20th, 1995, do you recall meeting with -- 14 MR. PETTIT: I was already on March 20th. Are we 15 talking about the same day? 16 MR. NOMELLINI: Same day 2:00 on that day. Do you 17 recall a meeting with David Kennedy and Mr. Caffrey 18 regarding Bay-Delta water rights? 19 MR. PETTIT: No, I don't. 20 MR. NOMELLINI: All right. If you would refresh your 21 recollection, or look at the calendar for March 20th at 22 2:00. 23 MR. PETTIT: All right, I see the meeting noted and 24 the answer is the same as before. 25 MR. NOMELLINI: All right. Does that refresh your CAPITOL REPORTERS (916) 923-5447 187 1 recollection as to the -- such a meeting? 2 MR. PETTIT: No, it does not. 3 MR. NOMELLINI: Okay. Is it your testimony that you 4 did not have such a meeting? 5 MR. PETTIT: No. As I testified a moment ago, since 6 that isn't lined out, or changed I probably attended such a 7 meeting. 8 MR. NOMELLINI: All right. Do you have any 9 recollection as to the content of the discussion? 10 MR. PETTIT: No, I don't, other than I know what the 11 discussion did not include. 12 MR. NOMELLINI: All right. And you recall that it 13 did not include what? 14 MR. PETTIT: It did not include any discussion of the 15 substance of the Board's water rights allocation 16 determinations. 17 MR. NOMELLINI: Do you have any recollection of the 18 substance of the meeting other than what it did not 19 include? 20 MR. PETTIT: No, I don't. 21 MR. NOMELLINI: All right. With regard to 22 March 21st, 1995, do you recall a meeting with Betsy Rekey 23 (phonetic) and Water Policy Council members? 24 MR. PETTIT: No. 25 MR. NOMELLINI: All right. If you would refresh your CAPITOL REPORTERS (916) 923-5447 188 1 recollection, or look at the calendar for March 21st at 2 9:00 a.m. 3 MR. PETTIT: It says, "CalFed Directors -- 4 MR. BIRMINGHAM: Excuse me, I'm going to object. The 5 question is whether or not his recollection has been 6 refreshed, not what the calendar says. 7 MR. NOMELLINI: Is your recollection refreshed with 8 regard to whether or not that meeting took place? 9 MR. PETTIT: No. 10 MR. NOMELLINI: All right. With regard to 11 March 31st, 1995, do you recall having a meeting with Dave 12 Schuster, Tom Howard, and Jerry Johns? 13 MR. PETTIT: No, I don't. 14 MR. NOMELLINI: All right. If you would look at the 15 calendar for March 31st, 1995, at 3:00, I would ask whether 16 or not that refreshes your recollection? 17 MR. PETTIT: No. 18 MR. NOMELLINI: Is it your testimony that you did not 19 have such a meeting? 20 MR. PETTIT: That is not my testimony. I probably 21 did have such a meeting. 22 MR. NOMELLINI: All right. That's all I have of this 23 witness. 24 C.O. CAFFREY: All right. Mr. Pettit, why don't you 25 stay there for a moment, because I think if there is CAPITOL REPORTERS (916) 923-5447 189 1 cross-examination we would treat you and Mr. Johns as a 2 panel. Mr. Birmingham? 3 MR. BIRMINGHAM: I'd like to make a motion to strike 4 Mr. Pettit's testimony on the grounds of relevance. 5 C.O. CAFFREY: All right. Your motion is duly noted 6 and in the record. Thank you, sir. I'm going to call for 7 cross-examination of these witnesses now. Is there anybody 8 wishing to do so, any of the other parties? 9 ---oOo--- 10 CROSS-EXAMINATION OF CENTRAL DELTA WATER AGENCY 11 BY PATRICK PORGANS AND ASSOCIATES 12 BY PATRICK PORGANS 13 MR. PORGAN: Mr. Chairperson, Patrick Porgans, 14 Porgans and Associates. I know it's difficult to try to 15 recollect anything, but are you saying, Mr. Pettit, that 16 you recall none of the substances of any of the those 17 meetings that you had with any of the individuals on the 18 days that Mr. Nomellini referred to? 19 MR. PETTIT: No. I believe I was asked if I recalled 20 the specific subjects that were discussed on those 21 particular days and I do not. 22 MR. PORGAN: Okay. And it's the same also for 23 Mr. Johns, he doesn't remember either? 24 C.O. CAFFREY: Mr. Johns, please come forward. 25 MR. PORGAN: It's the same question relative to what CAPITOL REPORTERS (916) 923-5447 190 1 Mr. Nomellini asked you in regard to the meeting dates and 2 the substance of the meetings. 3 MR. JOHNS: You mean the date? 4 MR. PORGANS: Meeting dates that you were asked 5 about. 6 MR. JOHNS: As I recall I was asked about one date. 7 And my testimony stands as given. 8 MR. PORGAN: Does anybody keep records -- do you 9 keep records of what you do such as a daily log when you're 10 involved in conducting business as a public servant? 11 MR. JOHNS: Not an a daily log, no. 12 MR. PORGAN: Do you, Mr. Pettit? 13 MR. JOHNS: Now it works. 14 MR. PETTIT: I keep some notes of meetings that I 15 attend at least for a period of time. I keep some notes of 16 telephone conversations depending upon the subject. And I 17 think all of those for the period in question were given to 18 Mr. Nomellini when he took my deposition in the same 19 matter. 20 MR. PORGAN: Thank you, Mr. Chair. 21 C.O. CAFFREY: Thank you, Mr. Porgans. Any other 22 questions. Cross-examination? Staff. 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 191 1 ---oOo--- 2 CROSS-EXAMINATION OF CENTRAL DELTA WATER AGENCY 3 BY STAFF 4 MS. LEIDIGH: I just have a couple of questions. 5 Mr. Johns, the question that Mr. Nomellini asked you about 6 the meeting, at that time was there any plan that was 7 really going on for reviewing Order 95-6 and extending it? 8 MR. JOHNS: Extending 95-6? 9 MS. LEIDIGH: Yes, at that time that that meeting may 10 have taken place. 11 MR. JOHNS: You have to refresh my memory on the 12 date. He was talking about -- he was talking March '95; is 13 that correct? 14 MS. LEIDIGH: Is that correct, Mr. Nomellini? 15 MR. NOMELLINI: Yeah. It was after the notice of 16 hearing, but before the hearing, for your information. 17 MR. JOHNS: Since we had not adopted 95-6 yet, the 18 idea of it being related to the extension of 95-6 was out 19 of the question. 20 MS. LEIDIGH: Okay. I'll ask the same question of 21 Mr. Pettit. 22 MR. PETTIT: Would you repeat the question, please? 23 MS. LEIDIGH: Okay. The question is: At the time 24 when these meetings that Mr. Nomellini referred you to may 25 or may not have taken place, was there any thought about CAPITOL REPORTERS (916) 923-5447 192 1 extending Order 95-6? 2 MR. PETTIT: Extending Order 95-6, no. 3 MS. LEIDIGH: Thank you. 4 C.O. CAFFREY: I have to say that this microphone 5 system, this may be a totally irrelevant statement, but 6 this microphone is really frustrating. I whisper something 7 to Mr. Stubchaer and they hear it in Roseville. Mr. Pettit 8 is holding the mic, almost putting it in his mouth and -- 9 MR. PETTIT: My staff just gave me instruction on how 10 to hold the mic. 11 C.O. CAFFREY: Is that what it is, thank you. Thank 12 you, Julie. 13 MEMBER DEL PIERO: Listen, from now on when you can't 14 hear me -- 15 C.O. CAFFREY: We can always hear you, Mr. Del Piero. 16 I mean that as a compliment. 17 MEMBER DEL PIERO: Thank you. 18 C.O. CAFFREY: All right. Let's get back -- I'm 19 sorry, Ms. Leidigh, please go ahead with your questions. 20 MS. LEIDIGH: Yes. Just a moment. I'd like to talk 21 to Mr. Johns for a second. 22 C.O. CAFFREY: We're off the record, obviously. 23 (Off the record from 3:20 p.m. to 3:21 p.m.) 24 C.O. CAFFREY: All right. We're back on the record. 25 MS. LEIDIGH: Okay. I think I'll ask Mr. Pettit CAPITOL REPORTERS (916) 923-5447 193 1 first, with respect to the meetings that were scheduled 2 with the Water Policy Council, does the Water Policy 3 Council deal with issues other than Bay-Delta? 4 MR. PETTIT: Yes, it does. 5 MR. JOHNS: Can't hear you. 6 MR. PETTIT: Yes, it does. 7 MS. LEIDIGH: Now, that we've figured out how to hold 8 the microphones it may work better. 9 MEMBER DEL PIERO: What a great answer. 10 MS. LEIDIGH: When the Water Policy Council has its 11 discussions do you ever talk to them about substantive 12 issues with respect to Bay-Delta? 13 MR. PETTIT: Some substantive issues with respect to 14 the process and the timing. And at the time I think 15 Mr. Nomellini was concerned about, there was a lot of 16 discussion in general about the status of the negotiations 17 among the parties who were trying to reach agreements. We 18 never got into any discussion of evidence that would be 19 before the Board, or specific proposals that would be 20 before the Board. 21 MS. LEIDIGH: Anything about allocations of water 22 rights among parties? 23 MR. PETTIT: No. In fact, they probably got tired of 24 hearing me say that whatever was discussed there it didn't 25 commit the Board to anything. I think probably some of the CAPITOL REPORTERS (916) 923-5447 194 1 representatives here in the room could testify they got 2 tired of hearing that. 3 MS. LEIDIGH: Okay. Anything else that you want to 4 add? 5 MR. PETTIT: No, since this all seems to be covering 6 the same ground that we covered in the deposition last 7 fall, I understand one of Mr. Nomellini's concerns is that 8 we were involved in the negotiations that led up to the 9 Delta Accord. And, in fact, the charge I had from the 10 Board when we were asked to observe and help in those 11 discussions was that we were not to negotiate. That we 12 were -- we were to be there to answer questions, or offer 13 clarification, but we were not to negotiate. 14 In fact, on a couple of occasions I recall 15 Mr. Johns coming to me and saying that he had been to 16 meetings where the negotiators were at loggerheads on a 17 couple of issues and weren't making any progress. And he 18 suggested that there might be an easier answer to solve 19 their problem and asked if he could put that answer -- that 20 possibility on the table and I told him, "No. That that 21 would end up resulting in us being part of the negotiating 22 parties and he was not to offer any possible alternatives 23 or solutions." 24 MS. LEIDIGH: Okay. So you're testifying that you've 25 entirely avoided any substantive recommendations, or CAPITOL REPORTERS (916) 923-5447 195 1 anything else to any of the parties, or any discussion with 2 them. And even way back when, which is probably not even 3 relevant in this case because it was so long ago and it's 4 not part of this hearing, you have been avoiding any kind 5 of substantive discussions with the parties on the 6 allocation of water rights? 7 MR. PETTIT: That's true. Any thinking -- I recall a 8 couple of cases where we made suggestions. When they were 9 negotiating the Accord there were references to the Board's 10 process. And we had to correct them a couple of times by 11 telling them what the Board could do and could not do as a 12 matter of process. 13 MS. LEIDIGH: Okay. 14 C.O. CAFFREY: Anything else, Ms. Leidigh? 15 MS. LEIDIGH: Yeah. I have one question for 16 Mr. Johns. And that is: When he has discussions with 17 parties, does he talk about substantive issues, or keep 18 things to procedure and noncontroversial procedure? 19 MR. JOHNS: If we're talking -- well, a lot of stuff 20 I do in the normal course of my job is talk about 21 substantive matters and technical issues of the parties. 22 MS. LEIDIGH: Right. 23 MR. JOHNS: But in terms of matters that are before 24 the Board, we have always held a very high standard not to 25 talk about substantive matters, on a matter pending before CAPITOL REPORTERS (916) 923-5447 196 1 the Board with parties in interest. Like Walt was saying, 2 we do try to make sure the parties understand the Board's 3 process, the technical matters related to the environmental 4 document that we produced, and other activities we have 5 with the party to explain what the Board is doing, drafting 6 documents and that kind of thing. But we do not enter into 7 substantive discusses with the parties on matters before 8 the Board on a water hearing. 9 MS. LEIDIGH: Okay. Thank you. That's all I have. 10 C.O. CAFFREY: Any questions -- any cross-examination 11 or questions from the Board Members? 12 C.O. STUBCHAER: No. 13 C.O. CAFFREY: All right. Mr. Nomellini, do you have 14 any redirect? 15 MR. NOMELLINI: Yeah, I have a number. 16 C.O. CAFFREY: All right. 17 ---oOo--- 18 REDIRECT EXAMINATION OF CENTRAL DELTA WATER AGENCY 19 BY DANTE JOHN NOMELLINI 20 MR. NOMELLINI: Simulated by Barbara's questions 21 opening up of other subjects. Mr. Pettit, what was the 22 role of the Water Policy Council in the negotiation of the 23 Delta Accord? 24 MR. PETTIT: The Council as such I don't believe was 25 ever involved in direct negotiations. A number of the CAPITOL REPORTERS (916) 923-5447 197 1 members of the Council participated in different ways 2 because Fish and Game, Department of Water Resources, our 3 Board were all on the Council as well as some other State 4 agencies who were more peripherally involved. 5 As I said, we did not do any negotiations. Some 6 of the other parties, for instance, the Department of Water 7 Resources personnel I think probably met many more times 8 than I did with the various interest groups who were 9 negotiating what turned out to be the Accord. They didn't 10 do that as a Council, it was members of the Council. 11 MR. NOMELLINI: Would you describe the role of the 12 Resources's secretary as active in that negotiation? 13 MR. PETTIT: I'm not party to all the discussions 14 they had, but I suspect the Resources -- the departments 15 within the Resources agency kept the secretary pretty well 16 briefed on the status, but I was not privy to any of the 17 those discussions outside of the Council meetings 18 themselves. 19 MS. LEIDIGH: I'm going to object to that last piece 20 of testimony because of relevance. 21 MR. NOMELLINI: You opened the subject. 22 MS. LEIDIGH: I also objected to it based on 23 relevance when Mr. Pettit testified about that meeting. I 24 pointed out that I thought it was not relevant. And I'm 25 still pointing out that it's not relevant. CAPITOL REPORTERS (916) 923-5447 198 1 C.O. CAFFREY: I don't want to debate. I still want 2 to hang on to the gavel here. 3 MR. NOMELLINI: I apologize. 4 C.O. CAFFREY: That's all right. I'm talking to both 5 of you. And Ms. Leidigh's objection is duly noted. And, 6 please, proceed with your questions, Mr. Nomellini. 7 MR. NOMELLINI: All right. Mr. Pettit, do you recall 8 the date that the Delta Accord was signed? 9 MR. PETTIT: December 15th, 1994. 10 MR. NOMELLINI: And with regard to your comment, or 11 answer to the questions from Ms. Leidigh with regard to the 12 March '95 meetings, are you aware that those meetings took 13 place after the Delta Accord was signed? 14 MR. PETTIT: They, obviously, took place after the 15 Accord was signed. And I think the only significance is 16 what was discussed at those meetings. As Mr. Johns and I 17 have both indicated we have a lot of meetings with people 18 who are parties to actions before the Board. 19 MR. NOMELLINI: Is it still your testimony that the 20 March meetings dealt with the subject of negotiation of the 21 Delta Accord? 22 MR. PETTIT: I don't think I testified to that 23 extent, or to that effect. 24 MR. NOMELLINI: What agreement did you refer to that 25 you said those people were talking about, getting together CAPITOL REPORTERS (916) 923-5447 199 1 on agreement? 2 MR. PETTIT: I was talking about the long process of 3 the whole series of meetings that led up to the Delta 4 Accord. You know I wasn't referring to one specific 5 meeting. 6 MR. NOMELLINI: All right. After the Delta Accord 7 was executed in December of 1994 there was a notice of 8 hearing for 95-6 of March 3rd, 1995; is that correct? 9 MR. PETTIT: I don't recall the exact date. That 10 sounds like the right time frame. 11 MR. NOMELLINI: Roughly in the early part of March, 12 something like that in '95 after the Delta Accord was 13 signed there was a notice for a water rights proceeding 14 that ultimately led to Decision 95-6; is that correct? 15 MR. PETTIT: That's correct. 16 MR. NOMELLINI: All right. And with regard to those 17 meetings that I called your attention to, the meetings on 18 March 20th, '95, is it your testimony that those meetings 19 dealt with discussions of an agreement? 20 MS. LEIDIGH: Point of clarification, if you're 21 talking about a discussion of an agreement, are you talking 22 about negotiation of an agreement? 23 MR. NOMELLINI: I'm trying to understand his 24 testimony about that he recalled that there was a 25 discussion -- CAPITOL REPORTERS (916) 923-5447 200 1 MS. LEIDIGH: Maybe -- 2 C.O. STUBCHAER: One at a time. 3 MS. LEIDIGH: Maybe I can ask a question of 4 Mr. Pettit here for clarification. 5 MR. NOMELLINI: Sure. 6 C.O. CAFFREY: Go ahead, Ms. Leidigh. 7 MS. LEIDIGH: When was the Delta Accord final? When 8 was it signed? 9 MR. PETTIT: My recollection was it was on the date 10 that the lawsuit against EPA was -- bad phraseology, but 11 there was a drop-dead date under the lawsuit against EPA. 12 And the Accord was signed I guess on the final day, 13 December 15th, 1994. 14 MS. LEIDIGH: Okay. And is it correct that March of 15 1995 comes after that so that the Accord was already 16 signed? 17 MR. PETTIT: Can I check my calendar? I think it 18 does, yes. 19 MS. LEIDIGH: So there wasn't any negotiation of the 20 Accord going on in March of 1995, was there? 21 MR. PETTIT: That's correct. And when Mr. Nomellini 22 asked me about water policy meetings and agreements, we 23 were talking about a different time frame, because I was 24 talking about the time frame leading up to the Accord. 25 MS. LEIDIGH: Okay. CAPITOL REPORTERS (916) 923-5447 201 1 MR. NOMELLINI: That clarifies it. With regard to 2 your role in the -- and this is my last bit of questioning 3 to follow-up on Barbara's, but with regard to your role in 4 the negotiation of the Delta Accord, how would you describe 5 your role? 6 MR. PETTIT: I didn't have any role in the 7 negotiation of the Accord. 8 MR. NOMELLINI: Did you facilitate a meeting with 9 regard to the negotiation of the Accord? 10 MR. PETTIT: Yes, I did. I think I know which 11 meeting you're referring to. 12 MR. NOMELLINI: All right. In fact, this document 13 was submitted well within the time frame, Mr. Chairman, 14 with the original go around. Calling your attention -- 15 C.O. CAFFREY: Can you identify it for us, 16 Mr. Nomellini? 17 MR. NOMELLINI: Yeah. It's Central Delta Water 18 Agency Exhibit 14. 19 C.O. CAFFREY: Thank you, sir. 20 MR. NOMELLINI: Mr. Pettit, do you recognize Central 21 Delta Water Agency Exhibit 14? 22 MR. PETTIT: Yes. It is a group of notes in my 23 handwriting. 24 MR. NOMELLINI: All right. Calling your attention to 25 the first page of that exhibit which is turned over on the CAPITOL REPORTERS (916) 923-5447 202 1 desk, do you recognize that document? 2 MR. PETTIT: Yes. 3 MR. NOMELLINI: All right. And that was an 4 invitation issued by you to certain parties to attend a 5 meeting, was it not? 6 MR. PETTIT: That's correct. 7 MR. NOMELLINI: And is there any particular reason 8 why that meeting wasn't publicly noticed? 9 MR. PETTIT: Well, I consider this to be a public 10 notice. But if it's not, then, no, there wasn't any 11 particular reason. 12 MR. NOMELLINI: All right. With regard to your 13 consideration of that to be a public notice, what on that 14 document reflects itself as being a public notice? 15 MR. PETTIT: I don't know that anything particularly 16 identifies it as a public notice. The notice was sent out 17 at the direction of the Board, because at one of the many 18 workshops they had in which they were encouraging the 19 parties to reach agreement, it appeared that some of the 20 parties who were negotiating were approaching a stalemate. 21 And the Board directed me to facilitate a meeting to get 22 the parties together to make sure that they each other 23 understood the other's positions and issues. And that was 24 the purpose of that meeting and that notice. 25 MR. NOMELLINI: All right. That meet -- that meeting CAPITOL REPORTERS (916) 923-5447 203 1 notice went to certain specific parties, did it not? 2 MR. PETTIT: Yes, it did. 3 MR. NOMELLINI: Were any other parties notified of 4 that meeting other than the parties listed on the exhibit? 5 MR. PETTIT: I don't know. There were a lot of 6 telephone calls going back and forth. So I'm not sure who 7 might have been aware of it. 8 MR. NOMELLINI: All right. And your role in this was 9 the role of a facilitator rather than as an observer; is 10 that correct? 11 MR. PETTIT: That's true. I was just remind, too, 12 that this meeting really was more of a discussion of 13 alternatives in our Water Quality Control Plan that we were 14 considering. 15 MR. NOMELLINI: All right. With regard to the 16 meeting, you have some notes -- that same exhibit includes 17 some notes of yours; is that correct? 18 MR. PETTIT: That's correct. 19 MR. NOMELLINI: Now, in those notes there's a 20 statement that says if the parties -- and I'm paraphrasing, 21 get together, it would take a cataclysmic event in order 22 for the Board not to approve the agreement. Do you know 23 what I'm referring to there in your notes? 24 MR. PETTIT: Let's see. Oh, yes, I see that. 25 MR. NOMELLINI: Was mine a correct statement of what CAPITOL REPORTERS (916) 923-5447 204 1 you reflected in your notes? 2 MR. PETTIT: Yes, it is. I don't know if that's what 3 I said, but that's -- that's -- I might clarify that these 4 notes are a brief agenda I wrote out for myself prior to 5 the meeting to introduce the subjects at the meeting. And 6 that's the way I characterized that item. 7 MS. LEIDIGH: Excuse me, I really doubt the relevance 8 of any of this line of testimony or this exhibit. 9 Mr. Nomellini, could you at least explain why this is 10 relevant to this hearing? 11 MR. NOMELLINI: I think it's quite relevant. I would 12 offer that that was part of the negotiations leading to the 13 Delta Accord. We've contended and feared that the State 14 Board in effect rubber stamped the Delta Accord and was 15 committed to do so by the specific language in the Accord 16 that said, "The State Board shall do this and shall do 17 that." 18 Mr. Pettit makes recommendations to your Board and 19 it appears that they would carry great weight in this 20 regard. And, therefore, that type of a statement would 21 indicate that there was pretty firm support for that, at 22 least in his mind. So I think it is very relevant. This 23 is the kind of thing that we would hope see avoided so that 24 the hearings would be free of any taint -- 25 MS. LEIDIGH: Okay. CAPITOL REPORTERS (916) 923-5447 205 1 C.O. CAFFREY: I note your explanation. I'm going to 2 note Ms. Leidigh's expression of concern. They're both on 3 the record. I want to get on with this. 4 MR. PETTIT: I have one more clarification, 5 Mr. Chairman, that I think might help a little bit. The 6 wording which I don't think Mr. Nomellini read exactly it 7 says, "Club Fed and users reach agreement that would take a 8 cataclysmic event to preclude the Board from adopting." 9 That I think absent the specific wording was just a 10 reflection of what the Board had been saying to all the 11 parties in numerous workshops up to that point that they 12 had to reach agreements. 13 The one word in there that I don't think that was 14 used in Mr. Nomellini's characterization of the comment is 15 "users." It says, "Club Fed and users," and I view that to 16 be everybody who was interested in the matter before the 17 Board. It doesn't just involve the parties, or water 18 diverters, or any other such limited definition. 19 C.O. CAFFREY: All right. Does that complete -- 20 MR. NOMELLINI: That completes my recross. 21 C.O. CAFFREY: All right. Thank you, sir. Let's see 22 if there's -- Ms. Leidigh? 23 MS. LEIDIGH: I'd like to ask a few questions on 24 cross-examination. 25 C.O. CAFFREY: I'll get you momentarily. The order CAPITOL REPORTERS (916) 923-5447 206 1 we usually have been following is: Do any of the attorneys 2 in the audience wish to recross-examine these two 3 witnesses? Anybody wishing to do so? No one responding. 4 Ms. Leidigh, go ahead. 5 ---oOo--- 6 RECROSS-EXAMINATION OF CENTRAL DELTA WATER AGENCY 7 BY STAFF 8 BY MS. LEIDIGH 9 MS. LEIDIGH: Thank you. The question I have for 10 Mr. Pettit is: With respect to that meeting on November 11 3rd of 1994, did you consider that to be a continuation of 12 the Board's workshops leading to development of a Water 13 Quality Control Plan? 14 MR. PETTIT: Yes. And as I indicated, the Board 15 publicly directed me to hold that meeting to try and make 16 sure that the -- that the parties who were at somewhat of a 17 stalemate in negotiations understood each other's 18 positions. 19 MS. LEIDIGH: Okay. Did you have any discussion at 20 that time about any kind of water rights decision, or 21 anything in that meeting that you recall? 22 MR. PETTIT: No. 23 MS. LEIDIGH: So -- 24 MR. PETTIT: We did not have any such discussion. 25 MS. LEIDIGH: So it was purely with respect to the CAPITOL REPORTERS (916) 923-5447 207 1 Water Quality Control Plan objectives? 2 MR. PETTIT: That's correct. 3 MS. LEIDIGH: Okay. I think that's all I have. And 4 I think the point for the Chair is that the meeting was 5 about a Water Quality Control Plan. It wasn't about water 6 rights, or water right allocations. And, therefore, the 7 entire line of questioning, in my opinion, is irrelevant 8 and ought to be stricken. 9 C.O. CAFFREY: All right, Ms. Leidigh. 10 Mr. Birmingham has that same look. 11 C.O. STUBCHAER: Yes. Mr. Birmingham has the same -- 12 MR. NOMELLINI: I would just like to add -- 13 C.O. CAFFREY: Actually, we're actually in recross. 14 And your opportunity to respond, Mr. Nomellini, would be in 15 rebuttal and/or written closing statements. 16 Are there any recross-examination questions from 17 the Board Members? All right. That completes the 18 questioning and the direct and redirect of this panel. We 19 will move on to your -- you have another panel? 20 MR. NOMELLINI: Mr. Zuckerman on the substantive of 21 the issue rather the procedure. 22 C.O. CAFFREY: Mr. Birmingham? 23 MR. BIRMINGHAM: I hate to ask this. I spoke to 24 Mr. Nomellini briefly about the potential of having 25 Mr. Nelson testify out of order. Mr. Nelson is here now CAPITOL REPORTERS (916) 923-5447 208 1 and I wonder with the permission of the Board and Mr. 2 Nomellini's consent if we can call Mr. Nelson. 3 C.O. CAFFREY: Mr. Nelson was a -- refresh my memory, 4 a portion of what case in chief? 5 MR. BIRMINGHAM: San Luis and Delta Mendota Water 6 Authority. 7 C.O. CAFFREY: Okay. So you want to take him 8 completely out of order? 9 MR. BIRMINGHAM: With the permission of the Board and 10 Mr. Nomellini's concurrence. 11 C.O. CAFFREY: Do you have any objection? 12 MR. NOMELLINI: No. No. No. 13 C.O. CAFFREY: This is the only time Mr. Nelson can 14 be here? 15 MR. BIRMINGHAM: Unfortunately during this Phase, 16 yes, it is. 17 C.O. CAFFREY: So you're going to present him as a 18 single-member panel and then ask -- this is the opportunity 19 for people to go through the whole nine yards, 20 cross-examine and everything? 21 MR. BIRMINGHAM: Yes. 22 C.O. CAFFREY: And somehow tomorrow when we get to 23 you you'll relate that to whatever else you're doing. 24 MR. BIRMINGHAM: Yes. 25 C.O. CAFFREY: Would you agree with that, CAPITOL REPORTERS (916) 923-5447 209 1 Mr. Nomellini? 2 MR. NOMELLINI: Yes. 3 C.O. CAFFREY: We appreciate that, sir. 4 Please, proceed, Mr. Birmingham. 5 MR. BIRMINGHAM: At this point the San Luis and Delta 6 Mendota Water Authority would call Dan Nelson. 7 C.O. CAFFREY: Good afternoon, Mr. Nelson. 8 MR. NELSON: Thank you. 9 C.O. CAFFREY: You haven't been sworn in? 10 MR. NELSON: No, I have not. 11 C.O. CAFFREY: Do you promise to tell the truth in 12 these proceedings? 13 MR. NELSON: Yes, I do. 14 C.O. CAFFREY: Thank you. Please, be seated. 15 MR. BIRMINGHAM: Thank you. 16 ---oOo--- 17 CASE IN CHIEF 18 SAN LUIS AND DELTA MENDOTA WATER AUTHORITY 19 BY THOMAS W. BIRMINGHAM 20 MR. BIRMINGHAM: Mr. Nelson, I'm handing you a 21 document that's been marked as San Luis and Delta Mendota 22 Water Authority Exhibit 6. And I'd like to ask you if that 23 is a copy of your testimony submitted in connection with 24 Phase I of this proceeding? 25 MR. NELSON: Yes, it is. CAPITOL REPORTERS (916) 923-5447 210 1 MR. BIRMINGHAM: Would you briefly summarize that 2 testimony? 3 MR. NELSON: We were -- we were signatories and -- to 4 the Bay-Delta Accord and were participants in the 5 discussions that took place that led to the Accord. At the 6 time the Accord was signed we understood that the Delta 7 protections contained in the Accord would reduce the amount 8 of water available to satisfy the standard. In fact, it 9 was estimated that the Delta protections would reduce 10 exports by about one million acre feet. 11 The reason that the water users were willing to 12 accept this reduction in supplies was because the Accord 13 contained assurances that our water supply would not be 14 further reduced during the term of the Accord under various 15 ESA biological opinions, certain conditions on CVPIA, et 16 cetera. In other words, there were some protections that 17 were built in to further reductions in return for the 18 proposed -- the proposed protections of the Delta which 19 cost about one million acre feet. 20 Among the issues being considered by the Water 21 Board during the first phase of this hearing is whether 22 Order 95-6 should be extended. And because there is a 23 close relationship between the Accord, the '95 Water 24 Quality Control Plan, and Order 95-6 and because the water 25 users support for each of these documents was premised on CAPITOL REPORTERS (916) 923-5447 211 1 the assurances contained in the Accord, it would be 2 inappropriate to extend the Order 95-6 without extending 3 the protection under the Accord. And, therefore, if the 4 Water Board determines to extend Order 95-6 it should 5 condition the extension on agreement by DWR and Department 6 of Interior to an extension of the Accord. 7 MR. BIRMINGHAM: That concludes Mr. Nelson's 8 testimony. 9 C.O. CAFFREY: Thank you, Mr. Birmingham. Thank you, 10 Mr. Nelson. Do any of the parties wish to cross-examine 11 Mr. Nelson? Mr. Nomellini. Anybody else? 12 C.O. STUBCHAER: In the back. 13 C.O. CAFFREY: Mr. Porgans, I'm sorry. 14 Mr. Nomellini, why don't you -- 15 ---oOo--- 16 CROSS-EXAMINATION OF SAN LUIS AND 17 DELTA MENDOTA WATER AUTHORITY 18 BY CENTRAL DELTA WATER AGENCY 19 BY DANTE JOHN NOMELLINI 20 MR. NOMELLINI: Mr. Nelson, what provisions in the 21 Accord do you think must be incorporated in 95-6 to carry 22 forward the tenor of the agreement? 23 MR. NELSON: I don't have the specific provisions in 24 mind, but generally it's -- it's the provisions which talk 25 about the -- or which provide protection from ESA listings. CAPITOL REPORTERS (916) 923-5447 212 1 And it provides where the water would come from; indeed, 2 there is additional listings, et cetera. And those are the 3 core of the protections, but there's some other provisions 4 involved as well. 5 MR. NOMELLINI: So the provision, or the agreement 6 that if additional water was required for ESA it would not 7 come from the exporters, is that what you're referring to 8 as one of the conditions? 9 MR. NELSON: Well, it is more an agreement by the 10 Federal Government that if, indeed, they needed some 11 additional water for additional protections under ESA 12 through either a change of biological opinions of existing 13 listings, or through the biological opinions of new 14 listings that the Federal Government essentially agreed 15 that they would provide for that water. So it's not 16 necessarily saying that it won't come from the -- anybody 17 else. It's essentially the Federal Government stepping 18 forward and saying they will provide those protections. 19 MR. NOMELLINI: So they will either provide it or buy 20 it from willing sellers? 21 MR. NELSON: That's my understanding, yes. 22 MR. NOMELLINI: Okay. And those willing sellers 23 could include water contractors who receive exports from 24 the Delta as well as others? 25 MR. NELSON: My sense is there are no conditions on CAPITOL REPORTERS (916) 923-5447 213 1 who the willing sellers would or should be. 2 MR. NOMELLINI: All right. Any other provision in 3 the Delta Accord that you think should be incorporated in 4 the extension of 95-6? 5 MR. NELSON: Well, generally, I think the concept is 6 that with any -- the Accord was essentially a package. And 7 right now we're looking at extending a certain component of 8 that package and I think the concept is that we should be 9 looking at extending the other components of the package as 10 well. 11 MR. NOMELLINI: Is it your view that 95-6 is, in 12 fact, an implementation of the Principals Agreement of the 13 Accord? 14 MR. NELSON: Could you repeat that, please? 15 MR. NOMELLINI: Is it your testimony that 95-6 is, in 16 fact, an implementation of the Accord? 17 MR. NELSON: I think it satisfies the intent of what 18 we anticipated in the Accord, yes. 19 MR. NOMELLINI: Okay. If 95-6 was not extended, what 20 is your understanding as to the Accord? 21 MR. NELSON: Well, the Accord expires on December 22 15th of this year. And my sense is that we would need to 23 have some discussions on the implications of that to the 24 extensions of some of the protections, et cetera. And so 25 my sense is it would implicate how it is we would operate CAPITOL REPORTERS (916) 923-5447 214 1 beyond December 15th. 2 MR. NOMELLINI: Okay. Do you understand that some of 3 the water exported by the Bureau goes to areas outside the 4 permitted place of use of the Bureau's permits? 5 MR. NELSON: I'm not aware of that, no. 6 MR. NOMELLINI: Okay. That's all I have of this 7 witness. 8 C.O. STUBCHAER: Okay, Mr. Nomellini. Mr. Porgans, 9 good afternoon. 10 ---oOo--- 11 CROSS-EXAMINATION OF SAN LUIS AND 12 DELTA MENDOTA WATER AUTHORITY 13 BY PORGANS AND ASSOCIATES 14 BY PATRICK PORGANS 15 MR. PORGAN: Good afternoon. Yes, Mr. Nelson, you 16 said that there was -- could possibly be maybe a million 17 acre feet reduction of water available in the Delta as a 18 result of Accord? 19 MR. NELSON: That was the modeling that was done at 20 the time that the Accord negotiations were taking place, 21 that's correct. 22 MR. PORGAN: And how much water did you deliver in 23 the year prior to the Accord, do you remember that? 24 MR. NELSON: No, I do not. 25 MR. PORGAN: Have you seen any significant reduction CAPITOL REPORTERS (916) 923-5447 215 1 in water available to your service area? 2 MR. NELSON: It's, obviously, relevant to the type of 3 water year we're having. 4 MR. PORGAN: Absolutely. Absolutely. 5 MR. NELSON: And so in any given year, yes, it can be 6 modeled once again that the impacts of the Accord are 7 around one million acre feet in any given year. 8 MR. PORGAN: Have you experienced those -- that 9 million-acre-feet shortage that we're talking about here, 10 or has it been experienced since the Accord was signed? 11 MR. NELSON: Yes, in the reduction of yield that's 12 entirely true. 13 MR. PORGAN: Did that so-called reduction in yield 14 ever cause you to reduce the amount of water going to your 15 customers in your area? 16 MR. NELSON: Yes, it has. 17 MR. PORGAN: By how many acre feet of water, do you 18 know? 19 MR. NELSON: I can't tell you offhand. 20 MR. PORGAN: Can't ballpark it? 21 MR. NELSON: Can't ballpark it, no. As you recall 22 we've had three fairly wet years since we signed the Accord 23 MR. PORGANS: Yes. And do you have any idea how 24 much the acreage of reduced production was say in the three 25 years subsequent to the Accord? CAPITOL REPORTERS (916) 923-5447 216 1 MR. NELSON: No, I don't. 2 MR. PORGAN: Is it relatively the same as prior to 3 the Accord, do you know that? 4 MR. NELSON: I would not know that. 5 MR. PORGAN: I will be submitting information to 6 support the numbers. I know I can't ask him the question, 7 because he doesn't have the information. He's only the 8 manager. Thank you. 9 C.O. CAFFREY: All right. Thank you, Mr. Porgans. 10 Do any staff wish to ask questions on cross? Anything from 11 the Board Members? Any redirect, Mr. Birmingham? 12 MR. BIRMINGHAM: No. Thank you very much. 13 C.O. CAFFREY: All right. Thank you, sir. I believe 14 that concludes your participation. 15 MR. NELSON: Mr. Chairman and Committee Members, 16 thank you very much. 17 C.O. CAFFREY: Thank you for a speedy trip. 18 MR. BIRMINGHAM: And I appreciate Mr. Nomellini's 19 courtesy in allowing Mr. Nelson to go on. 20 C.O. CAFFREY: As do we. Thank you, Mr. Birmingham. 21 Is Mr. Nomellini in the room? 22 MR. NOMELLINI: I'm right here. 23 C.O. CAFFREY: Oh, there he is. Whenever you're 24 ready, Mr. Nomellini. 25 MR. NOMELLINI: I called as my next witness Thomas M. CAPITOL REPORTERS (916) 923-5447 217 1 Zuckerman. 2 C.O. CAFFREY: Were you here when the oath and 3 affirmation was administered? 4 MR. ZUCKERMAN: I was. 5 C.O. CAFFREY: Thank you, sir. 6 MR. ZUCKERMAN: And that's under oath. 7 C.O. CAFFREY: It is. 8 MR. ZUCKERMAN: Does this work? 9 C.O. CAFFREY: It's a directional mic -- 10 MR. ZUCKERMAN: I'm just trying to find out if the 11 people can hear you in the back of the room. It's 12 directional so you need to talk into the very front part of 13 it. 14 MR. JOHNS: Hold it flat like that. 15 MR. ZUCKERMAN: Pat my head and -- 16 C.O. CAFFREY: Mr. Zuckerman, if you're really good 17 it will hover by itself. 18 ---oOo--- 19 CASE IN CHIEF (Cont'd.) 20 CENTRAL DELTA WATER AGENCY 21 BY DANTE JOHN NOMELLINI 22 MR. NOMELLINI: All right. Mr. Zuckerman, calling 23 your attention to the Central Delta Water Agency Exhibit 24 Number 1, I understand you have some corrections to that 25 statement of qualifications? CAPITOL REPORTERS (916) 923-5447 218 1 MR. ZUCKERMAN: That's correct. 2 MR. NOMELLINI: Other than your age is it accurate 3 with regard to your qualifications? 4 MR. ZUCKERMAN: It was completely correct at the time 5 I made it. It was a couple of years ago. 6 MEMBER DEL PIERO: You still look good. 7 MR. ZUCKERMAN: Let's put it this way, I'll admit to 8 56. 9 C.O. CAFFREY: All right. 10 MR. NOMELLINI: All right. Would you, please -- 11 calling your attention to Central Delta Water Agency's 12 Exhibit Number 4, would you, please, summarize your -- is 13 that an accurate copy of your testimony? 14 MR. ZUCKERMAN: Yes, it is. 15 MR. NOMELLINI: Would you, please, summarize for the 16 Board your testimony, please. 17 MR. ZUCKERMAN: Okay. There are three basic points 18 that we're trying to lay the foundation for in this 19 testimony. And I will try to go through them quickly 20 without -- and I won't cover the technical references, more 21 just the technical context. 22 The first point is the relationship of fish stock 23 declines and Delta export operations. The reclamation of 24 the Delta was essentially complete by the 1920's. We've 25 cited certain things in the testimony as evidence of that. CAPITOL REPORTERS (916) 923-5447 219 1 And one of the exhibits to my testimony that we were going 2 to put on the overhead -- get it plugged in. 3 C.O. CAFFREY: Did you identify the exhibit by number 4 so in case anybody is trying to follow along or are trying 5 to take notes? 6 MR. NOMELLINI: It's Delta -- Central Delta Water 7 Agency 5. 8 C.O. CAFFREY: Five, thank you, sir. 9 MR. ZUCKERMAN: And this came from a DWR publication. 10 It simply confirms the fact that the Delta had been 11 completely reclaimed, or nearly completely reclaimed by the 12 early 20's. And the other thing that I would point out is 13 that the anticipation that was -- from that particular 14 exhibit shows that there is some depletion in the supply 15 available, because of the urban development that was 16 anticipated to take place -- 17 MR. NOMELLINI: I was incorrect on that reference. 18 That's okay. Sorry about that, it is five. 19 MS. LEIDIGH: Perhaps, you could explain what table, 20 or figure number this is from Exhibit 5 since there seems 21 to be other things in there. 22 MR. ZUCKERMAN: It's cited at the top of page two of 23 my testimony. The testimony in evidence and the evidence 24 to be presented by other Central Delta Water Agency 25 witnesses further establishes that irrigation, drainage, CAPITOL REPORTERS (916) 923-5447 220 1 and farming practices have remained essentially constant 2 since the original reclamation of the islands through the 3 present time. 4 Much water development upstream from the Delta had 5 already occurred prior to the time that appropriations for 6 the CVP and the State Water Project were sought. 7 Consequently, the permits and the licenses ultimately 8 granted to the export operations are generally junior in 9 priority to most other diversions from the system. By the 10 time of the hearings of the filings by the export projects, 11 concern had already arisen about protecting the fishery 12 resources that are dependent upon San Francisco Bay. 13 The State Water Rights Board and ultimately its 14 successor, your Board, were careful in the hearings on 15 those applications to reserve jurisdiction to impose 16 appropriate terms and conditions upon each of the projects 17 to protect fishery resources from the operations of the 18 projects. 19 When the Board operates with water quality 20 planning jurisdiction it periodically reviews the adequacy 21 of the water quality standards to protect fishery 22 resources. Consequently, the current Board jurisdiction to 23 impose protective terms and conditions on each of those 24 projects dates back at least to the conditions that existed 25 when the original water rights applications were filed. CAPITOL REPORTERS (916) 923-5447 221 1 And that testimony is relative to the no-project 2 alternative that we see in the environmental documents 3 which tends to want to say, "We're going to try to preserve 4 what was in existence about the time this hearing started." 5 What we're suggesting is that your authority and your 6 jurisdiction relates back to the reservations of 7 jurisdiction from the predecessor hearings which says that 8 you have the authority to go back and look at conditions 9 that existed prior to the time that those applications were 10 filed and those projects were built. 11 In the written testimony I give some extensive 12 citation to the matters that are in the records of this 13 Board's proceedings prior to this date which have been 14 incorporated into your prior actions. And I won't bother 15 to go through them all here, but the records are full of 16 testimony from the Fish and Wildlife experts, both those 17 testifying on behalf of the project sponsors, the Fish and 18 Wildlife Agency, the Federal Government, the Department of 19 Fish and Game, and private people which take note of the 20 tremendous declines that have taken place in the fisheries 21 in the Delta, the important fisheries in the Delta since 22 the time the projects went into operation with some 23 attribution of the cause of that precipitous declines to 24 the projects themselves. And those citations are contained 25 in my written testimony. CAPITOL REPORTERS (916) 923-5447 222 1 Given the relative health of the major fishery 2 resources of the Delta for at least three decades following 3 the completion of the reclamation of the present day 4 islands in the Delta followed by the precipitous decline of 5 these same populations in the three decades following the 6 commencement of two major export projects, there is every 7 reason to believe that the operations of those projects 8 have had independent and major deleterious impacts upon the 9 health of those fisheries. Both the State and Federal 10 fishery agencies have so concluded in testimony and 11 evidence previously presented to this Board. 12 To mitigate for these export induced impacts on 13 the Delta fisheries the Bay-Delta Accord, subsequently 14 implemented by this Board in the 1995 Bay-Delta Water 15 Quality Plan and Water Rights Decision 95-6, called for 16 increased fishery flows in April, May, and October in the 17 San Joaquin River at Vernalis in combination with 18 restrictions on export pumping during the same period both 19 in relation to total inflow to the Delta and the San 20 Joaquin River flow into the Delta. 21 Water Rights Decision 95-6 in implementing the 22 Bay-Delta Accord sanctions water from the east side 23 tributaries watershed of the San Joaquin River including 24 releases from New Melones Reservoir on the Stanislaus River 25 rather than water from the exports to provide these San CAPITOL REPORTERS (916) 923-5447 223 1 Joaquin River flows to mitigate fishery damage caused by 2 exports by the CVP and SWP. Among other consequences this 3 prevents the CVP from meeting contract demands from its 4 customers in the areas of origin like Central San Joaquin 5 Water Conservation District and Stockton East Water 6 District and impairs the irrigation season flows standards 7 in the San Joaquin River necessary to meet Vernalis water 8 standards and otherwise serve the needs of users downstream 9 in the Delta. 10 Thus, the users who are burdened by the loss of 11 water are not those who are benefited by the export 12 pumping, which is causing the problems being mitigated. 13 This gross inequity can be repaired by shifting this burden 14 to the beneficiaries of the export project either by 15 reducing the export pumping, or requiring releases to the 16 San Joaquin River from Friant Dam, or of water pumped from 17 the Delta. 18 If water rights are to be impaired it should not 19 be those of other users who are prior in right to the 20 export projects including by reason of area of origin 21 preference. A recently completed long-term water transfer 22 reported at pages 378 through 3-80 of the California Water 23 Plan update Bulletin 116-98, Volume I, public review draft, 24 and it's our Exhibit Number 11, is a fair implication that 25 there is surplus water available from the export water CAPITOL REPORTERS (916) 923-5447 224 1 customers which could be applied to an equitable solution 2 to this problem. 3 Second point that I wanted to address in my 4 testimony was what appears to be unauthorized diversion of 5 water by the Bureau of Reclamation from the Delta to areas 6 outside their authorized areas of service. The unfairness 7 and unreasonableness of using watershed water to mitigate 8 the export impacts is compounded by the fact that a 9 significant amount of the export pumping by the CVP appears 10 to be illegally serving areas outside the places of use 11 permitted by their water rights. Our Exhibit Number 12 -- 12 do we have that we could put up? 13 MR. NOMELLINI: I have parts of it. 14 MR. ZUCKERMAN: I'll proceed, includes relevant pages 15 from the Draft Program Environmental Report Impact report 16 with a consolidated and conformed place of use dated 1997. 17 Our Exhibit 12, which includes page -- page 2.6 of said 18 report lists the CVP water contractors and acreages of 19 encroachment. Without going through the entire chart here 20 I would just summarize it with that exhibit which comes 21 from CVPIA documents which indicates that there is 86,986 22 acres of land being served some water supplied outside the 23 authorized service areas of the Central Valley Project. 24 The actual amount of water illegally served to 25 such areas is not calculated or set forth in the agreement. CAPITOL REPORTERS (916) 923-5447 225 1 But if one were to assume that somewhere between 2 one-and-a-half and three-acre feet of water per acre this 3 becomes a farmable figure, perhaps, 130 to 260,000 acre 4 feet of water per year. 5 Some with such encroachment use apparently results 6 in direct or indirect drainage into the San Joaquin River, 7 thereby adding additional salts which add to the harm to 8 the Delta water users and the CVP New Melones contractors. 9 The encroachment deliveries to Del Puerto Water District 10 808 acres, San Luis Water District 9,609 acres, and to the 11 Westlands Water District 36,419 acres appear to add 12 directly or indirectly to the San Joaquin River salinity 13 problem. 14 The third point that I wanted to address myself 15 has to do directly with the use of the joint points of 16 diversion as causing harm to the Delta and other area of 17 origin water users when compared to operations without such 18 use. The use of joints points of diversion allows the CVP 19 to better recover losses of export volume due to pumping 20 restrictions for protection of fishery resources. To the 21 extent that such make up pumping results in the delivery to 22 the portions of the west side of the San Joaquin Valley, 23 which directly or indirectly add salt to the San Joaquin 24 River greater than would have occurred in the absence of 25 such use of joint points of diversion, Delta water users CAPITOL REPORTERS (916) 923-5447 226 1 and New Melones contractors are harmed. 2 As will be, I said, explained by other witnesses 3 in greater detail, water deliveries to portions of the west 4 side of the San Joaquin Valley add to the salt loading in 5 the San Joaquin River. This additional salt loading harms 6 Delta agricultural users by adding to the salt loading in 7 the soil. 8 New Melones CVP contractors are harmed, because 9 more New Melones releases will be required to meet the 10 Vernalis salinity standards thereby reducing the quantity 11 of the water to be delivered pursuant to their contract. 12 Unless said make-up water is used for dilution of salts or 13 fishery flows, including recirculation flows, our area is 14 better off without such additional make-up pumping 15 facilitated by the joint points of diversion. And there's 16 a reference then to our Exhibit 13, which talks about the 17 details. 18 Additionally, as previously displayed, export 19 pumping whether for make-up purposes or otherwise causes 20 damage to the fisheries. To the extent that such damage is 21 mitigated with flows of the San Joaquin River tributaries 22 including releases from New Melones, the Delta and CVP New 23 Melones contractors, all of whom are users within the areas 24 of origin, are harmed. 25 Our conclusions from our study of this issue are CAPITOL REPORTERS (916) 923-5447 227 1 laid out at pages 11 and 12 of our -- of my testimony and I 2 just want to go over them briefly. In effect we are asking 3 if you extend the joint points of diversion that you should 4 impose further conditions that will protect against the 5 things that are covered in my testimony. 6 First, export pumping for the benefit of the CVP 7 should be reduced by the quantity of water delivered to 8 areas outside the permitted places of use. Second, use of 9 joint points of diversion should not be allowed for CVP 10 deliveries to areas outside the permitted place of use. 11 Third, use of joint points of diversion should not be 12 allowed for make-up pumping for delivery to areas on the 13 west side of the San Joaquin Valley which directly or 14 indirectly add salts to the San Joaquin River. 15 Fourth, water needed for the San Joaquin River and 16 Delta fishery requirements should be provided from exported 17 areas to the extent necessary to maximize the amount of 18 water available for New Melones for delivery to meet the 19 contracts of the Stockton East Water District and the 20 Central San Joaquin Conservation District and to ensure 21 that there is no detriment to the Delta water users from 22 use of water from other San Joaquin tributary sources. 23 Fifth, maintenance of Vernalis salinity standards 24 should be with export water and/or other actions in the 25 export water service areas from releases from New Melones CAPITOL REPORTERS (916) 923-5447 228 1 only to ensure full compliance. Sixth, positive net daily 2 downstream flows shall be maintained at all the times in 3 the stretch of the San Joaquin River between the Merced 4 River and the Turner Cut. 5 Seven, the irrigation season protection provided 6 by the Vernalis salinity standards should include March and 7 September in order to cover the full irrigation season. 8 And finally, eight, export pumping range should be 9 curtailed when necessary to avoid loss of operating water 10 levels at irrigation siphons and pumps in the south and 11 central Delta areas. And that concludes my testimony. 12 C.O. CAFFREY: All right. Thank you, Mr. Zuckerman. 13 MR. NOMELLINI: That concludes our presentation. 14 C.O. CAFFREY: You have other witnesses in this 15 phase? 16 MR. NOMELLINI: No. No. No. 17 C.O. CAFFREY: Not in this phase. All right, then 18 we'll go to cross-examination. Do any of the parties wish 19 to cross-examine Mr. Zuckerman? Mr. Birmingham. 20 C.O. STUBCHAER: Mr. Porgans in the back. 21 C.O. CAFFREY: Did Mr. Porgans raise his hand, also? 22 And Mr. Porgans I believe. 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 229 1 ---oOo--- 2 CROSS-EXAMINATION OF CENTRAL DELTA WATER AGENCY 3 BY WESTLANDS WATER DISTRICT 4 BY THOMAS W. BIRMINGHAM 5 MR. BIRMINGHAM: Mr. Zuckerman, my name is Tom 6 Birmingham. I'm the attorney that represents Westlands 7 Water District and San Luis/Delta Mendota Water Authority 8 in Phase I of these proceedings. Am I correct that your 9 testimony has been marked for identification as Central 10 Delta Water Agency Exhibit 4? 11 MR. ZUCKERMAN: Yes. 12 MR. BIRMINGHAM: And your statement of qualifications 13 is Exhibit 1? 14 MR. ZUCKERMAN: Yes. 15 MR. BIRMINGHAM: Am I correct from reading your 16 statement of qualifications is that your expertise is as a 17 water lawyer; is that correct? 18 MR. ZUCKERMAN: Partially. 19 MR. BIRMINGHAM: What other expertise do you have? 20 MR. ZUCKERMAN: I think it's pretty well stated in my 21 statement of qualifications, that I -- there's more than 22 one string to my bow. 23 MR. BIRMINGHAM: What other strings? How would you 24 characterize the other strings to your bow? 25 MR. ZUCKERMAN: I think they're adequately covered in CAPITOL REPORTERS (916) 923-5447 230 1 the statement of qualifications. If you have some 2 questions about what sits there, I'd be happy to respond to 3 it. 4 MR. BIRMINGHAM: Let me ask you questions about the 5 areas you're not an expert in. You are not an expert 6 biologist; is that correct? 7 MR. ZUCKERMAN: No. I don't hold myself out to be a 8 biologist. But I am an expert in, perhaps as much as 9 anybody else here, the proceedings that have taken place 10 before this Board since my beginning involvement which was 11 in 1968. 12 MR. BIRMINGHAM: So you would not be qualified to 13 express an opinion on the relationship between the 14 operation of export pumps and the decline of Delta 15 fisheries; is that correct? 16 MR. ZUCKERMAN: I didn't intend to do that. What my 17 testimony was intended to do was to make reference to the 18 statements of experts in previous hearings before the Board 19 which detailed the declines in the fish stocks and 20 suggested the reasons for those declines. 21 MR. BIRMINGHAM: But you're not offering any 22 independent opinion concerning the reason for those 23 declines? 24 MR. ZUCKERMAN: The only opinion that I am offering 25 is the one contained on page six of my testimony in the CAPITOL REPORTERS (916) 923-5447 231 1 next to the last paragraph. 2 MR. BIRMINGHAM: And that is that there is every 3 reason to believe that the operations of the export 4 projects have had an independent and major deleterious 5 impact on the health of these fisheries? 6 MR. ZUCKERMAN: That's correct. 7 MR. BIRMINGHAM: Let me ask you: Is it correct that 8 the diversion of water by Delta water users, or water users 9 between the statutory Delta also have had deleterious 10 impacts on the health of fisheries? 11 MR. ZUCKERMAN: It's unlikely. The Delta was 12 completely reclaimed by the mid 1920's and largely 13 reclaimed by 1920 itself. The irrigation practices that 14 have taken place in the Delta since that time have remained 15 essentially unchanged. We had very healthy fish stocks in 16 the Delta through the next they decades. And as I point 17 out, there appears to be an uncanny coincidence that the 18 fish stock declines were reported after the two projects 19 went into major operation. 20 MR. BIRMINGHAM: Let me ask you: Are diversions in 21 the Delta screened to prevent the diversion of fish through 22 the diversion works? 23 MR. ZUCKERMAN: Some of them are. 24 MR. BIRMINGHAM: Do you have any estimate as to the 25 percentage of the diversion facilities in the Delta that CAPITOL REPORTERS (916) 923-5447 232 1 are screened to prevent the entrainment of the fish? 2 MR. ZUCKERMAN: Very few, but there were more than 3 were up to 1960. 4 MR. BIRMINGHAM: Now, you are a water lawyer; is that 5 correct? 6 MR. ZUCKERMAN: Well, I practiced water law for 30 7 years, yes. 8 MR. BIRMINGHAM: Would you agree that requiring the 9 screening of diversions would be a reasonable measure in 10 order to increase the beneficial use of water in the Delta? 11 MR. ZUCKERMAN: Not based upon the record that has 12 been made up to this point. I think what would be 13 reasonable is the condition that was imposed by this Board 14 in the Water Quality Control Plan in 1995, which was to -- 15 having reviewed the evidence that was available at that 16 time on the efficacy or nonefficacy of screening Delta 17 diversions, the Board suggested to the various participants 18 that they participate in a coordinated program to study the 19 efficacy of screening Delta diversions and try to find 20 where the most bang for the buck could be accomplished. 21 And that incidentally is contained in the Water Quality 22 Control Plan. 23 MR. BIRMINGHAM: You are not, you say, a biologist. 24 Are you a hydrologist? 25 MR. ZUCKERMAN: I am all these things by osmosis I CAPITOL REPORTERS (916) 923-5447 233 1 suppose after all these years, but I am not trained 2 professionally in any scientific field. 3 MR. BIRMINGHAM: Would you hold yourself out as an 4 expert in hydrology? 5 MR. ZUCKERMAN: I would not and do not. 6 MR. BIRMINGHAM: And on page eight you make 7 reference to the Central San Joaquin Water Conservation 8 District and Stockton East Water District as being in the 9 area of origin. In the area of origin of what stream? 10 MR. ZUCKERMAN: The area of origin -- I was curious 11 when you were cross-examining somebody else earlier this 12 morning you were talking about "watershed." And if I had 13 had the opportunity to pipe up at that time I would have 14 asked you what you meant by the term "watershed." 15 Area of origin is a much easier term for me to 16 deal with, because it's a statutory term. It's contained 17 in Section 11460 of the Water Code and 10504, I believe, 18 and following. And it is specifically identified -- or 19 defined there to include watershed areas plus any areas 20 that can be conveniently served therefrom. 21 MR. BIRMINGHAM: I don't mean to be argumentative. 22 I'm familiar with the provisions of Water Code 11460. It 23 distinguishes between areas of origin and areas that can be 24 conveniently served therefrom. It describes two areas; is 25 that correct? CAPITOL REPORTERS (916) 923-5447 234 1 MR. ZUCKERMAN: Yes, but it -- 2 MR. BIRMINGHAM: And your testimony says that 3 Stockton East Water District -- 4 MR. ZUCKERMAN: Excuse me, let me complete my answer. 5 It affords the same protection to both of those types of 6 areas. 7 MR. BIRMINGHAM: But Water Code Section 11460 8 distinguishes between the area of origin and an area 9 immediately adjacent thereto that can be conveniently 10 served therefrom; is that correct? 11 MR. ZUCKERMAN: It makes no legal distinction. It 12 says both of them are entitled to the protection of the 13 statute. 14 MR. BIRMINGHAM: Your testimony states that in your 15 view the Central San Joaquin Water Conservation District 16 and Stockton East Water District are in the area of origin 17 of, I presume, the San Joaquin River, or the Stanislaus 18 River? 19 MR. ZUCKERMAN: I believe that they are covered by 20 Section 11460 of the Water Code, yes. 21 MR. BIRMINGHAM: Because they're in the area of 22 origin? 23 MR. ZUCKERMAN: Because they are in an area -- either 24 the area of origin, or an area that can be conveniently 25 served therefrom. The statute does not make the CAPITOL REPORTERS (916) 923-5447 235 1 distinction as to what level of protection is provided to 2 those areas. 3 MR. BIRMINGHAM: You indicated that the second point 4 of your testimony is that diversions, or exports which you 5 characterize as "illegal" are being delivered to places 6 outside the permitted place of use. Is that correct? 7 MR. ZUCKERMAN: That's -- that's the conclusion I 8 reached from reviewing the documents in the CVPIA 9 Environmental Impact Report. One page of which is 10 currently on the view screen and it's our Exhibit 12, I 11 believe. Let me double-check that. I'm not sure that's 12 the right citation. Yeah, 12. Excuse me. 13 MR. BIRMINGHAM: On page nine of Central Delta Water 14 Agency Exhibit 4 you state, "A reasonable range would be 15 1.5 acre feet to acre -- or per acre," excuse me, "to three 16 acre feet per acre permit reflecting an impermissible 17 export of 130,452 to 260,904 acre feet of water per year." 18 Now, do I understand your testimony that it's your 19 view that water is in excess of the demand within the 20 permitted place of use for the Bureau's permits? 21 MR. ZUCKERMAN: That's not my testimony. 22 MR. BIRMINGHAM: So, in other words -- 23 MR. ZUCKERMAN: I don't know whether it is or isn't. 24 MR. BIRMINGHAM: So you have no reason to dispute 25 that if all of the water exported by the Bureau of CAPITOL REPORTERS (916) 923-5447 236 1 Reclamation were used within the permitted place of use, 2 the exports would be the same? 3 MR. ZUCKERMAN: I don't know that. I don't know 4 whether there's an actual demand, or need for that amount 5 of water within the CVP permitted places of use. I assume 6 there isn't. Otherwise, I can't understand why it would be 7 served to people who are not within the permitted place of 8 use. 9 MR. BIRMINGHAM: Do you understand the distinction 10 between the "permitted place of use" under the Bureau's 11 permits and the projects service area for the Central 12 Valley Project? 13 MR. ZUCKERMAN: I do not. 14 MR. BIRMINGHAM: On page ten you state that the 15 encroachment deliveries to Del Puerto Water District, 808 16 acres; san Luis Water District, 9,609 acres; and to 17 Westlands Water District, 36,419 acres appear to add 18 directly or indirectly to the San Joaquin River salinity 19 problem. 20 Which of those -- which of those encroachment 21 acres deliver directly to the salinity problem in the San 22 Joaquin River? 23 MR. ZUCKERMAN: Well, I'm not sure I know precisely. 24 I know that portions of Del Puerto Water District, at 25 least, and the San Luis Water District drain directly to CAPITOL REPORTERS (916) 923-5447 237 1 tributaries to the Delta. And I know that -- or I believe 2 that I know that all of them to some degree add these 3 constituents to the first groundwater table which finds its 4 way down through various courses including through duck 5 clubs and so forth and ultimately gets into the drainage 6 into the San Joaquin River. 7 MR. BIRMINGHAM: So you're suggesting that water 8 applied within these encroachment areas enclose subsurface 9 laterally to the San Joaquin River? 10 MR. ZUCKERMAN: Some of it does. Some of it I think 11 drains directly into water courses that lead into the San 12 Joaquin River. 13 MR. BIRMINGHAM: Do you have any information 14 concerning the rate at which the water flow would serve 15 subsurface laterally into the San Joaquin River from the 16 encroachment areas? 17 MR. ZUCKERMAN: I really do not, but I have a pretty 18 good understanding of what the impact of the total drainage 19 from the west side has had on the water quality in the San 20 Joaquin River. 21 MR. BIRMINGHAM: Is it your understanding that 22 Westlands Water District does not discharge into the San 23 Joaquin River? 24 MR. ZUCKERMAN: I don't believe it discharges 25 directly into the San Joaquin River. I believe some of the CAPITOL REPORTERS (916) 923-5447 238 1 areas within the Westlands District add to the drainage 2 problems of the San Joaquin River. 3 MR. BIRMINGHAM: Now on page ten of your testimony 4 you're referring to the encroachment area within Westlands 5 Water District; is that correct? 6 MR. ZUCKERMAN: At which part of page ten? 7 MR. BIRMINGHAM: Well, at the top of page ten you 8 refer to 36,419 acres within Westlands. That's within the 9 encroachment area, isn't it? 10 MR. ZUCKERMAN: I believe so, yes. 11 MR. BIRMINGHAM: Do you know where the encroachment 12 area is located? 13 MR. ZUCKERMAN: I do not. 14 MR. BIRMINGHAM: Isn't it correct that the 15 encroachment is located on the west side of the California 16 Aqueduct/San Luis Canal? 17 MR. ZUCKERMAN: I don't know. Some portion of the 18 additions to the Westlands area I know are in that region 19 and probably some of the original boundaries. 20 MR. BIRMINGHAM: Well -- 21 MR. ZUCKERMAN: That does not necessarily mean that 22 that water doesn't find its way to the San Joaquin River 23 system. 24 MR. BIRMINGHAM: Are you familiar with the 25 groundwater condition underlying Westlands Water District? CAPITOL REPORTERS (916) 923-5447 239 1 MR. ZUCKERMAN: Yes, somewhat. 2 MR. BIRMINGHAM: Could you briefly describe the 3 groundwater divide and where it's located in the Westlands 4 Water District? 5 MR. ZUCKERMAN: I know that Corcoran Clay underlie a 6 large portion of the Westlands Water District so that there 7 is a first water table that exists upon the Corcoran Clay 8 certainly in portions of the Westlands Water District that 9 ultimately finds its way down into the trough of the 10 valley. I don't know precisely where that divide is, but I 11 think my recollection is it roughly follows the line of the 12 California Aqueduct. 13 MR. BIRMINGHAM: So you don't know where these 14 encroachment lands are referred in your testimony with 15 respect to first water tables created by the Corcoran Clay? 16 MR. ZUCKERMAN: I do not know specifically where they 17 are. 18 MR. BIRMINGHAM: And isn't it correct, 19 Mr. Zuckerman, that there's a ground divide within the 20 service area of Westlands Water District near the 21 California Aqueduct? 22 MR. ZUCKERMAN: I just testified the extent of my 23 knowledge relating to the Corcoran Clay. 24 MR. BIRMINGHAM: So it would be your testimony that 25 you really don't know to what extent these encroachment CAPITOL REPORTERS (916) 923-5447 240 1 lands add either directly or indirectly to salinity in the 2 San Joaquin River? 3 MR. ZUCKERMAN: I can't quantify it precisely. I 4 have a reasonable belief based upon what I've read and seen 5 and heard that they do. 6 MR. BIRMINGHAM: But you have no independent 7 knowledge as to whether they do, or if they do to what 8 extent? That was a compound question let me ask it -- let 9 me -- 10 MR. ZUCKERMAN: Let me simplify. I'll just answer it 11 for you. I have what I believe is a reasonable 12 understanding based upon many years of participation in 13 these issues that they have a deleterious effect upon the 14 quality of the San Joaquin River. I can't be a great deal 15 more specific than that. 16 C.O. CAFFREY: Let's go off the record for a moment 17 while the Stenographer changes her tape. 18 (Off the record from 4:27 p.m. to 4:28 p.m.) 19 C.O. CAFFREY: All right. We're back on the record. 20 THE COURT REPORTER: Thank you. 21 MR. BIRMINGHAM: I have no further questions. 22 C.O. CAFFREY: All right. Thank you very much, 23 Mr. Birmingham. Did I see somebody -- was Mr. Porgans 24 going to ask questions of -- 25 MR. PORGAN: Yeah. CAPITOL REPORTERS (916) 923-5447 241 1 C.O. CAFFREY: Mr. Porgans, you're up, sir, for 2 cross-examination of Mr. Zuckerman. 3 ---oOo--- 4 CROSS-EXAMINATION OF CENTRAL DELTA WATER AGENCY 5 BY PORGANS AND ASSOCIATES 6 BY PATRICK PORGANS 7 MR. PORGAN: Yes, Mr. Zuckerman, you made reference 8 to the illegal supplying of water to about 86,000 acres of 9 lands through the U.S. Bureau of Reclamation, I think it 10 was 86,957? 11 MR. ZUCKERMAN: Yes. 12 MR. PORGAN: Were you aware -- or somewhere in your 13 testimony you make -- are you aware of the fact that the 14 Inspector General of the U.S. Department of the Interior 15 also did an audit report on the Bureau citing the illegal 16 irrigation of ineligible lands in 1994? 17 MR. ZUCKERMAN: I'm generally familiar with it. I'm 18 not specifically familiar with its contents. 19 MR. PORGAN: Do you know the outcome of the 20 recommendations that were made by the Inspector General? 21 MR. ZUCKERMAN: I don't recall. 22 MR. PORGAN: Do you know how many tons of salts are 23 being dumped into the San Joaquin River annually from the 24 service areas of either the Delta Mendota Canal or of other 25 areas in the Valley? CAPITOL REPORTERS (916) 923-5447 242 1 MR. ZUCKERMAN: I have heard those numbers. The 2 people I've heard them from are going to testify as 3 witnesses for the South Delta Water Agency in this 4 proceeding. And rather than inadvertently make a numerical 5 mistake, I'd prefer to rely upon testimony of Dr. Orlob and 6 Alex Hilderbrand in that regard. 7 MR. PORGAN: Okay. Are you aware of the fact that 8 the five parts per billion selenium promulgated by the U.S. 9 Environmental Protection Agency for the San Joaquin River 10 was violated 82 percent of the time from 1988 to 1992? 11 MR. ZUCKERMAN: I have read that. 12 MR. PORGANS: Are you aware of the fact that in 1993 13 and 1994 selenium standards were violated 11 out of 12 14 months? 15 MR. ZUCKERMAN: Again, I have read that. I don't 16 have direct experience with that, I have read that. 17 MR. PORGANS: Are you aware of the fact that in the 18 Regional Water Quality Control Board in their basin plan it 19 states that 130 miles of the San Joaquin River have been 20 classified as water quality limited segments? 21 MR. ZUCKERMAN: Yes. 22 MR. PORGAN: Are you aware of the fact that the 23 single largest most contiguous area in the United States in 24 terms of lands that are water quality impaired is in the 25 San Joaquin Valley? CAPITOL REPORTERS (916) 923-5447 243 1 MR. ZUCKERMAN: I didn't know that. I wouldn't be 2 surprised if that were true. 3 MR. PORGAN: Thank you. Thank you, Mr. Chairman. 4 C.O. CAFFREY: Thank you, Mr. Porgans. 5 Cross-examination questions from the staff -- I'm 6 sorry. Mr. Sexton, I didn't realize that you had raised 7 your hand. Please proceed, sir. 8 ---oOo--- 9 CROSS-EXAMINATION OF CENTRAL DELTA WATER AGENCY 10 BY SAN JOAQUIN RIVER EXCHANGE CONTRACTORS 11 BY THOMAS J. SEXTON 12 MR. SEXTON: Thank you, Mr. Caffrey. Mr. Caffrey, at 13 this time I would move to strike the testimony of 14 Mr. Zuckerman as to issues raised regarding fish stock 15 declines on the basis that he's not qualified to make those 16 determinations by his own admission on his testimony 17 regarding hydrologic conditions in the San Joaquin River. 18 On the same basis, for his testimony regarding 19 water quality impacts in the San Joaquin River on the same 20 basis. And I would also move to strike the opening 21 statements made by Mr. Nomellini on those issues on the 22 basis that he has not presented any direct, or other kind 23 of testimony which supports these statements that he made. 24 C.O. CAFFREY: All right. Thank you, Mr. Sexton. 25 Your objections are duly noted on the record and I'll rule CAPITOL REPORTERS (916) 923-5447 244 1 a little bit later today and on a couple others that are 2 still out. Thank you, sir. 3 MR. SEXTON: To the extent that the ruling remains 4 unresolved at this particular time I would like to reserve 5 for either later in this phase, or later phases the ability 6 to put on testimony regarding these issues if the need 7 arises. 8 C.O. CAFFREY: You have that right already, sir. 9 MR. SEXTON: Thank you, sir. 10 C.O. CAFFREY: All right. Thank you. Let's see -- 11 C.O. STUBCHAER: Staff. 12 C.O. CAFFREY: Staff had no questions. We were going 13 to go to Board Members. Any cross-examination questions? 14 Any redirect, Mr. Nomellini? 15 MR. NOMELLINI: No, Mr. Chairman. I was going to 16 offer our exhibits. 17 C.O. CAFFREY: All right, sir, this is the time to do 18 that. 19 MR. NOMELLINI: I would offer Exhibit 1, 4, 5, 6, 7, 20 8, 9, 10, 11, 12, 13, and 14. That leaves 2 and 3 which 21 are the statement of qualifications of Alex Hildebrandt and 22 Gerald Orlob who we are not calling as part of our case at 23 this time. 24 C.O. CAFFREY: All right. There's at least one 25 objection related to your exhibits, I think now is the time CAPITOL REPORTERS (916) 923-5447 245 1 to rule on this. I'm going to have a brief consultation 2 with my Cohearing Officer, Mr. Stubchaer. We'll go off the 3 record. 4 Before we do that, Mr. Birmingham rises. 5 Sir? 6 MR. BIRMINGHAM: I would like to join in Mr. Sexton's 7 motion to strike all of Mr. Zuckerman's testimony. I would 8 object on the grounds that Mr. Zuckerman is not qualified 9 to express the opinions that are contained in the document. 10 I would have no objection to the exhibits that are 11 referenced in his testimony as they are reports from people 12 who presumably are qualified to express the opinions that 13 are contained in those documents. But I think 14 Mr. Zuckerman, by his own admission, has indicated that 15 he's not qualified to express any of the opinions that are 16 contained in his -- in his testimony, all of which would 17 depend upon some qualification as an expert. 18 C.O. CAFFREY: All right. Thank you, sir. We're off 19 the record for a moment. 20 (Off the record from 4:29 p.m. to 4:32 p.m.) 21 C.O. CAFFREY: Back on the record. With regard to 22 the objections as to Mr. Zuckerman's testimony, I'm going 23 to allow his testimony to remain in the record. He has 24 stated in the testimony, which is a part of the record, 25 that he has stated the limitations to his qualifications. CAPITOL REPORTERS (916) 923-5447 246 1 And it goes to the Board in its deliberative process, the 2 Board Members themselves to assign the relevancy to the 3 weight of evidence. So that's the ruling. That's also the 4 ruling with regard to the outstanding objection that -- 5 with regard to Mr. Pettit's testimony and Mr. Johns's 6 testimony, that also will remain on the record for the same 7 reasons. 8 MR. NOMELLINI: Thank you. 9 MR. ZUCKERMAN: Thank you very much. 10 C.O. CAFFREY: All right. Thank you, gentlemen. 11 Let's see, it is now 25 minutes to 5:00. We have just 12 completed the case in chief for the Central Delta Water 13 Agency for Phase I. That still leaves us with South Delta 14 Water Agency and then Mr. Birmingham's representation for 15 San Luis and Delta Mendota and also Westlands -- time out. 16 C.O. CAFFREY: Thank you. Ms. Leidigh reminds me 17 that I did not technically accept Mr. Nomellini's exhibits. 18 Duly noting the standing objections, are there others? All 19 right, then without further objections we will accept those 20 exhibits. 21 Unless there's some objection to calling it a day, 22 I think this is as good a place to stop. It's about 20 23 minutes to 5:00. We can come back tomorrow and start with 24 the South Delta Water Agency's presentation. Thank you. 25 (The proceedings concluded at 4:40 p.m.) CAPITOL REPORTERS (916) 923-5447 247 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 1 through 248 herein constitute a complete, 11 true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 8th day of 14 July, 1998. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 248