0249 01 02 03 04 05 STATE WATER RESOURCES CONTROL BOARD 06 07 08 09 10 PUBLIC HEARING 11 12 13 13 1998 BAY-DELTA WATER RIGHTS HEARING 14 15 16 17 HELD AT: 18 RESOURCES BUILDING 18 1416 NINTH STREET 19 FIRST FLOOR AUDITORIUM 19 SACRAMENTO, CALIFORNIA 20 20 21 21 22 THURSDAY, JULY 2, 1998 22 9:00 A.M. 23 23 24 24 Reported by: ESTHER F. WIATRE 25 CSR NO. 1564 25 0250 01 APPEARANCES 01 BOARD MEMBERS: 02 02 JOHN CAFFREY, COHEARING OFFICER 03 JAMES STUBCHAER, COHEARING OFFICER 03 JOHN W. BROWN 04 MARY JANE FORSTER 04 MARC DEL PIERO 05 05 STAFF MEMBERS: 06 06 WALTER PETTIT, EXECUTIVE DIRECTOR 07 VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 07 THOMAS HOWARD, SUPERVISING ENGINEER 08 08 COUNSEL: 09 09 WILLIAM R. ATTWATER, CHIEF COUNSEL 10 BARBARA LEIDIGH 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 0251 01 REPRESENTATIVES 01 02 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 02 03 FROST, DRUP & ATLAS 03 134 West Sycamore Street 04 Willows, California 95988 04 BY: J. MARK ATLAS, ESQ. 05 05 JOINT WATER DISTRICTS: 06 06 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 07 P.O. BOX 1679 07 Oroville, California 95965 08 BY: WILLIAM H. BABER III, ESQ. 08 09 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 09 10 ROBERT J. BAIOCCHI 10 P.O. Box 357 11 Quincy, California 11 12 BELLA VISTA WATER DISTRICT: 12 13 BRUCE L. BELTON, ESQ. 13 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 14 15 WESTLANDS WATER DISTRICT: 15 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 16 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 17 BY: THOMAS W. BIRMINGHAM, ESQ. 18 18 THE BAY INSTITUTE OF SAN FRANCISCO: 19 19 GARY BOBKER 20 55 Shaver Street, Suite 330 20 San Rafael, California 94901 21 21 CITY OF ANTIOCH, et al.: 22 22 FREDERICK BOLD, JR., ESQ. 23 1201 California Street, Suite 1303 23 San Francisco, California 94109 24 24 25 25 0252 01 REPRESENTATIVES 01 02 LEAGUE OF WOMEN VOTERS: 02 03 ROBERTA BORGONOVO 03 2480 Union Street 04 San Francisco, California 94123 04 05 UNITED STATES DEPARTMENT OF THE INTERIOR: 05 06 OFFICE OF THE SOLICITOR 06 2800 Cottage Way, Room E1712 07 Sacramento, California 95825 07 BY: ALF W. BRANDT, ESQ. 08 CALIFORNIA URBAN WATER AGENCIES: 08 09 BYRON M. BUCK 09 455 Capitol Mall, Suite 705 10 Sacramento, California 95814 10 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 11 12 MCDONOUGH, HOLLAND & ALLEN 12 555 Capitol Mall, 9th Floor 13 Sacramento, California 95814 13 BY: VIRGINIA A. CAHILL, ESQ. 14 14 CALIFORNIA DEPARTMENT OF FISH AND GAME: 15 15 OFFICE OF ATTORNEY GENERAL 16 1300 I Street, Suite 1101 16 Sacramento, California 95814 17 BY: MATTHEW CAMPBELL, ESQ. 17 18 NATURAL RESOURCES DEFENSE COUNCIL: 18 19 HAMILTON CANDEE, ESQ. 19 71 Stevenson Street 20 San Francisco, California 94105 20 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 21 22 DOOLEY HERR & WILLIAMS 22 3500 West Mineral King Avenue, Suite C 23 Visalia, California 93291 23 BY: DANIEL M. DOOLEY, ESQ. 24 24 25 25 0253 01 REPRESENTATIVES 01 02 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 02 03 LESLIE A. DUNSWORTH, ESQ. 03 6201 S Street 04 Sacramento, California 95817 04 05 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 05 06 BRAY, GEIGER, RUDQUIST & NUSS 06 311 East Main Street, 4th Floor 07 Stockton, California 95202 07 BY: STEVEN P. EMRICK, ESQ. 08 08 EAST BAY MUNICIPAL UTILITY DISTRICT: 09 09 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street 10 Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 11 12 GOLDEN GATE AUDUBON SOCIETY: 12 13 ARTHUR FEINSTEIN 13 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 14 15 CONAWAY CONSERVANCY GROUP: 15 16 UREMOVIC & FELGER 16 P.O. Box 5654 17 Fresno, California 93755 17 BY: WARREN P. FELGER, ESQ. 18 18 THOMES CREEK WATER ASSOCIATION: 19 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 20 Flournoy, California 96029 21 BY: LOIS FLYNNE 21 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 22 23 LAW OFFICES OF SMILAND & KHACHIGIAN 23 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 24 BY: CHRISTOPHER G. FOSTER, ESQ. 25 25 0254 01 REPRESENTATIVES 01 02 CITY AND COUNTY OF SAN FRANCISCO: 02 03 OFFICE OF THE CITY ATTORNEY 03 1390 Market Street, Sixth Floor 04 San Francisco, California 94102 04 BY: DONN W. FURMAN, ESQ. 05 05 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 06 06 DANIEL F. GALLERY, ESQ. 07 926 J Street, Suite 505 07 Sacramento, California 95814 08 08 BOSTON RANCH COMPANY, et al.: 09 09 J.B. BOSWELL COMPANY 10 101 West Walnut Street 10 Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 11 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 12 13 GRIFFTH, MASUDA & GODWIN 13 517 East Olive Street 14 Turlock, California 95381 14 BY: ARTHUR F. GODWIN, ESQ. 15 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 17 Sacramento, California 95814 18 18 PLACER COUNTY WATER AGENCY, et al.: 19 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor 20 Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 21 22 ENVIRONMENTAL DEFENSE FUND: 22 23 THOMAS J. GRAFF, ESQ. 23 5655 College Avenue, Suite 304 24 Oakland, California 94618 24 25 25 0255 01 REPRESENTATIVES 01 02 CALAVERAS COUNTY WATER DISTRICT: 02 03 SIMON GRANVILLE 03 P.O. Box 846 04 San Andreas, California 95249 04 05 CHOWCHILLA WATER DISTRICT, et al.: 05 06 GREEN, GREEN & RIGBY 06 P.O. Box 1019 07 Madera, California 93639 07 BY: DENSLOW GREEN, ESQ. 08 08 CALIFORNIA FARM BUREAU FEDERATION: 09 09 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive 10 Sacramento, California 95833 11 11 SANTA CLARA VALLEY WATER DISTRICT: 12 12 MORRISON & FORESTER 13 755 Page Mill Road 13 Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 14 15 CITY OF SHASTA LAKE: 15 16 ALAN N. HARVEY 16 P.O. Box 777 17 Shasta Lake, California 96019 17 18 COUNTY OF STANISLAUS: 18 19 MICHAEL G. HEATON, ESQ. 19 926 J Street 20 Sacramento, California 95814 20 21 GORRILL LAND COMPANY: 21 22 GORRILL LAND COMPANY 22 P.O. Box 427 23 Durham, California 95938 23 BY: DON HEFFREN 24 24 25 25 0256 01 REPRESENTATIVES 01 02 SOUTH DELTA WATER AGENCY: 02 03 JOHN HERRICK, ESQ. 03 3031 West March Lane, Suite 332 East 04 Stockton, California 95267 04 05 COUNTY OF GLENN: 05 06 NORMAN Y. HERRING 06 525 West Sycamore Street 07 Willows, California 95988 07 08 REGIONAL COUNCIL OF RURAL COUNTIES: 08 09 MICHAEL B. JACKSON 09 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 10 11 DEER CREEK WATERSHED CONSERVANCY: 11 12 JULIE KELLY 12 P.O. Box 307 13 Vina, California 96092 13 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 14 15 MODESTO IRRIGATION DISTRICT 15 P.O. Box 4060 16 Modesto, California 95352 16 BY: BILL KETSCHER 17 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 18 SAVE THE BAY 19 1736 Franklin Street 19 Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 20 21 BATTLE CREEK WATERSHED LANDOWNERS: 21 22 BATTLE CREEK WATERSHED CONSERVANCY 22 P.O. Box 606 23 Manton, California 96059 23 24 24 25 25 0257 01 REPRESENTATIVES 01 02 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 02 03 MARTHA H. LENNIHAN, ESQ. 03 455 Capitol Mall, Suite 300 04 Sacramento, California 95814 04 05 CITY OF YUBA CITY: 05 06 WILLIAM P. LEWIS 06 1201 Civic Center Drive 07 Yuba City 95993 07 08 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 08 09 BARTKEWICZ, KRONICK & SHANAHAN 09 1011 22nd Street, Suite 100 10 Sacramento, California 95816 10 BY: ALAN B. LILLY, ESQ. 11 11 CONTRA COSTA WATER DISTRICT: 12 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 13 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 14 15 GRASSLAND WATER DISTRICT: 15 16 DON MARCIOCHI 16 22759 South Mercey Springs Road 17 Los Banos, California 93635 17 18 SAN LUIS CANAL COMPANY: 18 19 FLANNIGAN, MASON, ROBBINS & GNASS 19 3351 North M Street, Suite 100 20 Merced, California 95344 20 BY: MICHAEL L. MASON, ESQ. 21 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 22 R.W. MCCOMAS 23 4150 County Road K 23 Orland, California 95963 24 24 25 25 0258 01 REPRESENTATIVES 01 02 TRI-DAM POWER AUTHORITY: 02 03 TUOLUMNE UTILITIES DISTRICT 03 P.O. Box 3728 04 Sonora, California 95730 04 BY: TIM MCCULLOUGH 05 05 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 06 06 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 07 P.O. Box 1679 07 Oroville, California 95965 08 BY: JEFFREY A. MEITH, ESQ. 08 09 HUMANE FARMING ASSOCIATION: 09 10 BRADLEY S. MILLER 10 1550 California Street, Suite 6 11 San Francisco, California 94109 11 12 CORDUA IRRIGATION DISTRICT, et al.: 12 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 13 P.O. Box 1679 14 Oroville, California 95965 14 BY: PAUL R. MINASIAN, ESQ. 15 15 EL DORADO COUNTY WATER AGENCY: 16 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 17 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 18 19 GLENN COUNTY FARM BUREAU: 19 20 STEVE MORA 20 501 Walker Street 21 Orland, California 95963 21 22 MODESTO IRRIGATION DISTRICT: 22 23 JOEL MOSKOWITZ 23 P.O. Box 4060 24 Modesto, California 95352 24 25 25 0259 01 REPRESENTATIVES 01 02 PACIFIC GAS & ELECTRIC: 02 03 RICHARD H. MOSS, ESQ. 03 P.O. Box 7442 04 San Francisco, California 94120 04 05 CENTRAL DELTA WATER AGENCY, et al.: 05 06 NOMELLINI, GRILLI & MCDANIEL 06 P.O. Box 1461 07 Stockton, California 95201 07 BY: DANTE JOHN NOMELLINI, ESQ. 08 and 08 DANTE JOHN NOMELLINI, JR., ESQ. 09 09 TULARE LAKE BASIN WATER STORAGE UNIT: 10 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue 11 Corcoran, California 93212 12 12 AKIN RANCH, et al.: 13 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor 14 Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 15 16 OAKDALE IRRIGATION DISTRICT: 16 17 O'LAUGHLIN & PARIS 17 870 Manzanita Court, Suite B 18 Chico, California 95926 18 BY: TIM O'LAUGHLIN, ESQ. 19 19 SIERRA CLUB: 20 20 JENNA OLSEN 21 85 Second Street, 2nd Floor 21 San Francisco, California 94105 22 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 23 LYNNEL POLLOCK 24 625 Court Street 24 Woodland, California 95695 25 25 0260 01 REPRESENTATIVES 01 02 PATRICK PORGENS AND ASSOCIATES: 02 03 PATRICK PORGENS 03 P.O. Box 60940 04 Sacramento, California 95860 04 05 BROADVIEW WATER DISTRICT, et al.: 05 06 DIANE RATHMANN 06 07 FRIENDS OF THE RIVER: 07 08 BETSY REIFSNIDER 08 128 J Street, 2nd Floor 09 Sacramento, California 95814 09 10 MERCED IRRIGATION DISTRICT: 10 11 FLANAGAN, MASON, ROBBINS & GNASS 11 P.O. Box 2067 12 Merced, California 95344 12 BY: KENNETH M. ROBBINS, ESQ. 13 13 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 14 14 REID W. ROBERTS, ESQ. 15 311 East Main Street, Suite 202 15 Stockton, California 95202 16 16 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 17 17 JAMES F. ROBERTS 18 P.O. Box 54153 18 Los Angeles, California 90054 19 19 SACRAMENTO AREA WATER FORUM: 20 20 CITY OF SACRAMENTO 21 980 9th Street, 10th Floor 21 Sacramento, California 95814 22 BY: JOSEPH ROBINSON, ESQ. 22 23 23 24 24 25 25 0261 01 REPRESENTATIVES 01 02 TUOLUMNE RIVER PRESERVATION TRUST: 02 03 NATURAL HERITAGE INSTITUTE 03 114 Sansome Street, Suite 1200 04 San Francisco, California 94194 04 BY: RICHARD ROOS-COLLINS, ESQ. 05 05 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 06 06 DAVID A. SANDINO, ESQ. 07 P.O. Box 942836 07 Sacramento, California 94236 08 08 FRIANT WATER USERS AUTHORITY: 09 09 GARY W. SAWYERS, ESQ. 10 575 East Alluvial, Suite 101 10 Fresno, California 93720 11 11 KERN COUNTY WATER AGENCY: 12 12 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 13 400 Capitol Mall, 27th Floor 13 Sacramento, California 95814 14 BY: CLIFFORD W. SCHULZ, ESQ. 14 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 15 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 16 P.O. Box 1679 17 Oroville, California 95965 17 BY: MICHAEL V. SEXTON, ESQ. 18 18 SAN JOAQUIN COUNTY: 19 19 NEUMILLER & BEARDSLEE 20 P.O. Box 20 20 Stockton, California 95203 21 BY: THOMAS J. SHEPHARD, SR., ESQ. 21 22 CITY OF STOCKTON: 22 23 DE CUIR & SOMACH 23 400 Capitol Mall, Suite 1900 24 Sacramento, California 95814 24 BY: PAUL S. SIMMONS, ESQ. 25 25 0262 01 REPRESENTATIVES 01 02 ORLAND UNIT WATER USERS' ASSOCIATION: 02 03 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 03 P.O. Box 1679 04 Oroville, California 95965 04 BY: M. ANTHONY SOARES, ESQ. 05 05 GLENN-COLUSA IRRIGATION DISTRICT: 06 06 DE CUIR & SOMACH 07 400 Capitol Mall, Suite 1900 07 Sacramento, California 95814 08 BY: STUART L. SOMACH, ESQ. 08 09 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 09 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 10 209 South Locust Street 11 Visalia, California 93279 11 BY: JAMES F. SORENSEN 12 12 PARADISE IRRIGATION DISTRICT: 13 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 14 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 15 16 COUNTY OF COLUSA: 16 17 DONALD F. STANTON, ESQ. 17 1213 Market Street 18 Colusa, California 95932 18 19 COUNTY OF TRINITY: 19 20 COUNTY OF TRINITY - NATURAL RESOURCES 20 P.O. Box 156 21 Hayfork, California 96041 21 BY: TOM STOKELY 22 22 CITY OF REDDING: 23 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 24 Redding, California 96001 25 25 0263 01 REPRESENTATIVES 01 02 TULARE IRRIGATION DISTRICT: 02 03 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 03 2 Sutter Street, Suite D 04 Red Bluff, California 96080 04 BY: ERNEST E. WHITE 05 05 STATE WATER CONTRACTORS: 06 06 BEST BEST & KREIGER 07 P.O. Box 1028 07 Riverside, California 92502 08 BY: GREGORY WILKINSON, ESQ. 08 09 COUNTY OF TEHAMA, et al.: 09 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: 10 P.O. Box 250 11 Red Bluff, California 96080 11 BY: CHARLES H. WILLARD 12 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 14 San Andreas, California 95249 15 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 16 HENRY WILLY 17 6755 Lake Amador Drive 17 Ione, California 95640 18 18 SOLANO COUNTY WATER AGENCY, et al.: 19 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 20 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 21 22 ---oOo--- 22 23 23 24 24 25 25 0264 01 INDEX 01 02 PAGE 02 03 SOUTH DELTA WATER AGENCY: 03 04 OPENING STATEMENT BY MR. HERRICK: 266 04 05 DIRECT EXAMINATION OF PANEL: 05 ALEX HILDEBRAND 06 JERRY ROBINSON 06 WILLIAM SALMON 07 ROBERT FERGUSON 07 DIRECT EXAMINATION: 08 BY MR. HERRICK 282 08 CROSS-EXAMINATION: 09 BY MR. SCHULZ 337 09 BY MR. GALLERY 347 10 BY MR. MADDOW 350 10 BY MR. BIRMINGHAM 352 11 BY MR. O'LAUGHLIN 381 11 12 ---oOo--- 13 14 15 16 17 18 19 20 21 22 23 24 25 0265 01 SACRAMENTO, CALIFORNIA 02 THURSDAY, JULY 2, 1998 03 ---oOo--- 04 COHEARING OFFICER CAFFREY: Please take your seats. 05 We will be continuing the water rights hearing on the 06 Bay-Delta, momentarily, with regards to Phase I. 07 Before we proceed with the case in chief presented by 08 Mr. Herrick for the South Delta Water Agency, I want to make 09 an announcement about Mr. O'Laughlin's motion, written 10 motion, that he has before the Board. I see Mr. O'Laughlin 11 is here. What we will be doing is in response to Mr. 12 O'Laughlin's request, and the concerns of many of you here, 13 we will take up Mr. O'Laughlin's motion with oral arguments 14 on the first day of the Phase II hearing as the first item 15 of Phase II. And then based on whatever we rule, we will 16 obviously have some effect potentially and determination of 17 how we proceed thereafter. 18 I will also give all the parties an opportunity to 19 submit any written arguments they may wish to, to pick a 20 reasonable date, probably July 9th. 21 Ms. Leidigh, that makes some sense since the earliest 22 post time that we would be hearing the arguments and the 23 presentation of the motion in this hearing room, or I should 24 say in the hearing room across the street. This is our last 25 day here. The earliest possible time we would do that would 0266 01 be July 14th. It might be later than that if we are not 02 finished with Phase I today. If we finish with Phase I 03 today, whether it be 3:00 this afternoon or an hour from 04 now, we will adjourn until the 14th, because, obviously, it 05 would make no sense to start Phase II until people have had 06 an opportunity to review the motion and prepare their 07 comments. So that is how we will proceed. 08 Are there any questions from the Board Members or 09 staff? 10 Any questions from anybody in the audience? 11 All right. That will be the order with regard to Mr. 12 O'Laughlin's motion. We will now proceed with the 13 presentation of the case in chief by South Delta Water 14 Agency. 15 Mr. Herrick, good morning, sir, welcome. 16 Mr. Brandt. 17 MR. BRANDT: I would like to put in a quick objection, 18 couple objections, to this entire piece of testimony. First 19 of all, just in Phase I because of its relevance and the 20 tenuous argument they are trying to make here. 21 C.O. CAFFREY: I am sorry, what are you referring to? 22 MR. BRANDT: To Mr. Hildebrand and the case that they 23 are putting in. I am just putting in an objection. I have 24 a written one I will put in. It is basically just 25 relevance, foundation as to his expertise, Mr. Hildebrand's 0267 01 expertise, and the other witnesses and hearsay, as well. 02 And I understand that you take that as you have. Just want 03 to put it on the record. 04 C.O. CAFFREY: We will take your objection under 05 submission and rule on it at a later date. Some up here are 06 arguing that it is premature, but that isn't something that 07 I will rule on. You've made your objection, and thank you, 08 sir. 09 Excuse the interruption, Mr. Herrick. Please proceed. 10 Good morning, Mr. Hildebrand. 11 MR. HERRICK: Good morning. Thank you, Mr. Chairman, 12 Board Members. If I may just give our policy statement for 13 this phase. I would like the Board to note that the matter 14 that is being considered under Phase I doesn't have any 15 proponents. It has people that say that that is okay. 16 The Department of Water Resources and the Bureau of 17 Reclamation, whose permits were changed under WR 95-6 are 18 not before you saying, "I think it is a good idea to 19 continue that." If they did, they would have to show us 20 what happened under 95-6 during the almost three years it 21 has been in operation. 22 I question and I ask the Board to use its own records 23 and put those in this record of what's occurred during that 24 time. What's occurred during that time are the points we 25 are going to bring up here and is why we oppose it. 0268 01 If you recall, in 1995 for the water quality control 02 plan we argued strenuously that if you start increasing 03 flows for fish, it's a closed system, and that means there 04 are less flows for something else. 05 Your own document, the Environmental Report on Page 06 VIII-10, talks about how it results in a worse water quality 07 at Vernalis. I qualify that by saying that we only looked 08 at '94 to '92, but it looks like there is a bad effect. So, 09 when we, South Delta Water Agency, and other people told you 10 that, "Well, that's bad; that's going to hurt us," you said 11 "Don't worry. We are not implementing the '95 plan, and 12 when we implement it, we'll make sure that you are not 13 harmed." 14 A couple months later, the conversations and 15 discussions and eventual adoption of WR 95-6 virtually 16 implemented the plan. We stood up, and we said, "Why are 17 you implementing -- allowing the plan to be implemented, 18 because it is going to hurt us?" 19 Your response was and it is WR 95-6, "We are not 20 ordering them to do it, and we assume that the Bureau of 21 Reclamation will abide by its permit conditions and will 22 abide by its statutes." 23 And then, sometime thereafter, the Bureau of 24 Reclamation adopted an Interim Operation Plan for New 25 Melones. As we will get to the lack of witnesses today, but 0269 01 as you will note from the April 21st workshop we had, the 02 Bureau's representative told you that the Interim Operation 03 Plan, under which they are operating now for '95-6, results 04 in water quality violations at Vernalis in 41 percent of the 05 year types. That is not a failure all year. That is in one 06 of the -- in 40 percent of the year there will be a 07 violation. 08 You don't know the effects of that because you don't 09 know how they will allocate that shortage; that is not set 10 forth. So the first implementation of meeting the '95 plan, 11 voluntarily done by the Bureau of Reclamation, was to adopt 12 a program that would result in violations of water quality 13 standard at Vernalis. I would love to have somebody tell me 14 where that has been analyzed in an environmental document. 15 It's not in an ER. And the ER was used to support WR 95-6. 16 And there was no environmental CEQA or NEPA review for the 17 adoption of the Interim Operation Plan. 18 Thereafter, the Bureau also implemented, voluntarily, 19 95-6 through a program of purchases of water. I am not 20 trying to confuse everybody with the legal or factual 21 chronology which is other programs going on, being used by 22 the water in order to provide the flows. The next step by 23 the Bureau was to purchase water from various entities on 24 the various tributaries. 25 One of those instances is the Merced Irrigation 0270 01 District sale of water. We objected to that. And I 02 personally talked to your staff and I said, "Their claim, 03 there is harm to us. We have an interim plan that says it 04 will hurt in 40 percent of the year type, and they're saying 05 they're not going to hurt us by shifting the flow from 06 summer to spring." 07 So your staff told me, "Don't you worry. We are going 08 to look at their documents that support that. Don't worry." 09 So I requested from staff and I requested from Merced their 10 documents that show their calculations. Didn't receive 11 that. We didn't have a hearing on that. As you recall, it 12 was a temporary permit request. There was no hearing on 13 that. We never received a document. We didn't get to 14 examine them. 15 The effect of WR 95-6 was a twofold implementation: 16 The operating plan of New Melones and purchase of the 17 tributary. The operating plan agrees, says it will hurt us. 18 The purchases, we didn't have the opportunity to argue 19 that. You supported your decision based on the Bureau did a 20 FONSI for that purchase. That purchase said, "We don't 21 think we'll hurt them, but if we do, we'll give them water 22 from New Melones." 23 It doesn't take a brain surgeon to conclude if there is 24 a problem of enough water for water quality, it is not a 25 solution to say we will get the water in another tributary. 0271 01 There is still not enough water. 02 For those reasons we opposed the extension of WR 95-6 03 as a continuation of a voluntary implementation that hurts 04 us without any environmental review. We think that is very 05 serious. 06 I apologize for the stopping here. 07 The other issues that came up during 95-6 and the '95 08 plan was salinity. And the environmental document says we 09 assume a cap of 70,000 acre-feet on releases from New 10 Melones. But, and I quote: 11 SWR expects water quality control measures to 12 reduce the dilution water required to meet 13 the salinity standard. (Reading.) 14 That is a very nice assumption, but it is wrong. 15 Nothing has occurred to address the salinity problem on the 16 river in the last three years, if not the last 30 years. I 17 haven't been around that long, obviously, but Alex has. 18 One of the things that has been done is that the 19 Regional Board adopted or produced the Clean Water Act 303 D 20 listings, including the San Joaquin River. We came before 21 you, whenever that was, a month or two ago, and we said, 22 "Why is it that the Regional Board didn't contact the South 23 Delta Water Agency about the salinity problem in the San 24 Joaquin River for listing?" 25 The Regional Board stood up in front of you and said, 0272 01 "Sorry, you know, sorry." And I actually got the card of 02 the guy so I can now call him regarding salinity on the San 03 Joaquin River. 04 What they did was they adopted, and you okayed it, 05 putting the San Joaquin River on the 303 D list, but at a 06 low priority. So they have another couple of years to do 07 something. 08 Also, at the time of 95-6, you wrote a letter to the 09 Regional Board and asked them, "Would you please address the 10 San Joaquin River salinity problem." I assume somebody 11 there is doing some things. 12 MR. BIRMINGHAM: Excuse me, Mr. Chairman. 13 C.O. CAFFREY: Mr. Birmingham. 14 MR. BIRMINGHAM: I am going to object to Mr. Herrick's 15 opening statement. It is my understanding that an opening 16 statement generally summarizes the evidence that is going 17 to be presented by a party. I have reviewed the written 18 testimony and exhibits that have been submitted by this 19 party, and the items that Mr. Herrick is now going into go 20 well beyond what is contained in those documents. 21 What Mr. Herrick is doing is he is making an argument 22 that it is unsupported by any evidence that is contained in 23 his written submittals. And so, therefore, I would request 24 that the Board instruct Mr. Herrick to present an opening 25 argument that summarizes the evidence that he will present 0273 01 as opposed to making an argument. 02 MR. O'LAUGHLIN: Mr. Chairman, I have to join in that 03 motion because I don't see what the relevance is -- 04 C.O. CAFFREY: Just a moment, Mr. O'Laughlin. Hang out 05 just a moment. Time out. 06 (Discussion held off the record.) 07 C.O. CAFFREY: You were going to say something, Mr. 08 O'Laughlin? 09 MR. O'LAUGHLIN: I would like to join in that objection 10 to the degree that Mr. Herrick is talking about water sales 11 by Merced Irrigation District, South San Joaquin Irrigation 12 and Oakdale Irrigation District under the CVPIA. That is 13 not relevant to this discussion. He never submitted any 14 testimony in his case in chief, written testimony, about 15 this. And what it has to do with the extension of 95-06 16 goes way beyond my comprehension. 17 C.O. CAFFREY: Mr. Del Piero. 18 Hang on a minute, Mr. Nomellini. 19 (Discussion held off the record.) 20 MR. NOMELLINI: I think the objections are way off 21 base. I think that this plans to be an interference with 22 the opening statement of South Delta. Obviously, salinity 23 in the San Joaquin River and the effect of meeting the 24 Vernalis salinity standard is relevant. It is affected by 25 what goes on with these water purchases. The implementation 0274 01 of the Delta Accord is to meet those fish flows, and for the 02 willing purchase of water Merced is one of them. 03 I think it is very relevant and right on the same scope 04 of their testimony. I don't think you ought to be overly 05 restricted on the opening statement. 06 C.O. CAFFREY: Thank you, Mr. Nomellini. 07 Anybody else? 08 MR. HERRICK: Comment, Mr. Chairman? 09 C.O. CAFFREY: Very briefly, Mr. Herrick. 10 MR. HERRICK: It is my understanding from yesterday's 11 instructions that the policy statements for each phase, if 12 they are being done by a party not presenting a case were 13 given yesterday. If they are given by a party, they are to 14 be given at the beginning of their testimony. I am not 15 summarizing testimony; I am giving South Delta's policy 16 statement with regards to 95-6. 17 C.O. CAFFREY: Mr. Herrick -- 18 MR. O'LAUGHLIN: I object to that because the hearing 19 notice says that policy statements are to be given by 20 nonparties. So if they don't want to be a party to the 21 proceeding, that's fine. But if they want to be a party to 22 the proceeding, it has to be an opening statement. So, 23 that's what your counsel has ruled previously. 24 C.O. CAFFREY: Do our instructions say that policy 25 statements may not be given by parties presenting cases in 0275 01 chief? 02 MS. LEIDIGH: Our hearing notice says that policy 03 statements are statements presented by nonparties. But we 04 have also pointed out that parties making opening statements 05 can cover the same kind of territory as a policy statement, 06 as well as summarizing the evidence that they are going to 07 present. 08 So, my recommendation is that Mr. Herrick be allowed to 09 continue with his statement of both position and summarizing 10 his evidence. It would be helpful, of course, if he would 11 tell us when he is going to present evidence on a particular 12 point. 13 C.O. CAFFREY: Okay. I am going to rule as follows: I 14 am going to overrule the objections because of the 15 demarcation and instructions between a policy statement and 16 an opening statement for a case in chief is not all that 17 descriptive or specific. 18 I would ask you, as instructed by or suggested by Ms. 19 Leidigh, Mr. Herrick, that if you can let us know when you 20 are reaching that portion of where you are dealing with your 21 evidence. 22 Thank you, sir. Please proceed. 23 Mr. Del Piero. 24 MEMBER DEL PIERO: Mr. Herrick, before you begin, if I 25 could ask you one question because I don't want to interrupt 0276 01 you again. 02 In regards to your comments about the inadequacy of the 03 environmental review for the potential reauthorization of 04 95-6, have you made those comments to our staff for 05 incorporation in the environmental document? And if you 06 have not, it would probably be appropriate if you did. 07 MR. HERRICK: I don't want to misstate anything here. 08 I believe our initial comments to the document, which were 09 submitted last June -- last January, to the environmental 10 document, I believe that those are included. If they are 11 not, I am certainly going to incorporate that. 12 Thank you. 13 C.O. CAFFREY: Please proceed, Mr. Herrick. 14 MR. HERRICK: Finally, with regard to salinity, the 15 letter that you wrote to the Regional Board three years ago, 16 asking them to do something, resulted in a phone call from 17 them to me last summer saying, "Do you guys have any 18 information on the salinity problem in the South Delta?" 19 Now, nothing is working. Your assumption in the '95 20 Water Quality Control Plan, which we are talking about, 21 assumed things are going to happen. Nothing's happening. 22 Nobody else is going to get it down unless somebody is 23 ordered to do so by this Board. 24 Another reason we oppose the extension of 95-6 deals 25 with the makeup pumping issue. Makeup pumping is supposed 0277 01 to allow the exports pump to recover decreased exports due 02 to fishery actions. That is very brief, and there is more 03 to it. 04 So each year of the operation -- of the existence of 05 this plan, and under '95-6, the DWR and USBR have sent a 06 letter to Mr. Pettit, and they have asked that they be 07 allowed to do makeup pumping. They have specified, "We have 08 calculated or are in the process of calculating how much is 09 lost in the April -- in the time frame, and then they 10 request that pumping. 11 We have opposed that each time. Because each one of 12 those letters said, a short paragraph, "And, by the way, we 13 don't believe anybody else will be hurt." 14 As you recall, 95-6 says you can do makeup pumping if, 15 among other things, you don't harm other legal users' 16 water. That is what it says. 17 So we objected, and those objections were noted, but 18 not acted upon, and it was allowed. The evidence we will 19 show today, because the Delta farmers and me, too, you blame 20 me, we don't have a record of water levels every day. The 21 record will indicate that at a time of makeup pumping in 22 1996 we were harmed. 23 We said before, during and after that '96 episode we 24 were harmed. So, when the next year, '97, came up and asked 25 for makeup pumping, it also included a statement, "By the 0278 01 way, nobody will be harmed." 02 So we said, "How can you say that? What is going on?" 03 Makeup pumping was allowed. 04 This year, because of the high flows and because the 05 request was before any lack of pumping due to fishery 06 actions, Mr. Pettit did disallow and did not allow makeup 07 pumping. Make pumping shifts pumping to another time of the 08 year. If nobody is doing any investigation, except 09 conclusions, if nobody is investigating if it is going to 10 hurt somebody, you can't say that you can do makeup pumping, 11 or we don't believe you should. 12 We would like to join in Central Delta Water Agency's 13 statements about water use in places not within the 14 permitted area. Now that should be an easy one. What we 15 are not talking about is not extending 95-6. The question 16 is: What is instead of that? 17 What is instead of that is how about a condition on the 18 exports that say, until we resolved issues under this 19 program, your operations can't harm riparian diversions in 20 South Delta. That doesn't sound like a ridiculous idea to 21 me, that sounds fair. 22 The Delta riparians have superior rights, I would 23 think. And nothing except the efforts of South Delta Water 24 Agency have done anything to address that to the barrier 25 program. Why should continued harm be allowed? Why should 0279 01 we have to prove harm today, and then come back to you 02 guys? Why don't order no harm be done? 03 Finally, I would like to say, also, indeed of 95-6, the 04 question is: What should be there? 05 We already know what is there. Section 12202 of the 06 Delta Protection Act says: 07 Among the functions to be provided by the 08 State Water Resources Development System in 09 coordination with the activities of the 10 United States in providing salinity control 11 for the Delta through operation of the 12 Federal Central Valley Project, shall be the 13 provision of salinity control and an adequate 14 water supply for the users of the water in 15 the Sacramento-San Joaquin Delta. If it is 16 determined to be in the public interest to 17 provide a substitute water supply to the 18 users in said Delta in lieu of that, which 19 would be provided as a result of the salinity 20 control, no added financial burden shall be 21 placed upon said Delta water users solely by 22 virtue of such substitution. (Reading.) 23 I don't know how it can be any more clear than that. 24 The flows coming out of the river are supposed to provide 25 for us, our uses and for salinity. That is the statute. 0280 01 So, if you are worried about what we fall back on 02 without 95-6, I suggest you institute a program that 03 requires the projects to not hurt us when they pump and also 04 to comply with the Delta Protection Act. 05 My first witness is -- our first witness is Alexander 06 Hildebrand, his testimony -- 07 C.O. CAFFREY: Mr. Brown has a question, excuse me. 08 Mr. Brown. 09 MEMBER BROWN: Mr. Herrick, your statement "nothing's 10 happening," I wonder if you haven't been able to notice any 11 change with the work at, say, Panoche Water District or 12 Drainage District and Broadview Water District and Westlands 13 have done through tailwater recovery and recycling their 14 tilewater, hasn't that helped and what the Regional Water 15 Quality Control Board has done with their waste discharge 16 permits and such? Haven't you noticed any change with 17 those efforts? 18 MR. HERRICK: Alex Hildebrand has been very closely 19 involved in those type of activities, and we compliment 20 people who are taking actions. But the sad result is the 21 Bureau's calculation on the water quality of the river is 40 22 percent violations if they keep doing it. 23 Now, we don't want to hope that these activities 24 improve the river? Last three years have been above normal. 25 This year's ridiculous. We don't know. But that is not a 0281 01 substitute for permit conditions or orders by this Board and 02 the Regional Board. 03 MEMBER BROWN: I was just concerned with your statement 04 and your feelings that nothing's happening. That bothered 05 me. If that's true, then I wonder why we are doing some of 06 these other reclamation and conservation measures, 07 particularly addressing those issues of water quality in the 08 drainage water. 09 MR. HERRICK: May I give an example? 10 MEMBER BROWN: No. It was a question. Please 11 proceed. 12 MR. HERRICK: Our first witness is Alex Hildebrand. 13 His testimony is contained on SDWA-27, the exhibit. That 14 exhibit also includes his Phase II testimony. We won't go 15 into that, obviously. His statement of qualifications is 16 SDWA-28, and Mr. Hildebrand is called as an expert witness. 17 And I believe he is going to summarize where possible, but 18 go through his testimony for you now. 19 C.O. CAFFREY: Let me ask you, Mr. Herrick, before Mr. 20 Hildebrand begins. We are looking at your exhibits here, 21 Mr. Herrick. Are all of these -- just so we know how we are 22 managing up here. Are all these witnesses to be presented 23 in Phase I or are you going to be appearing in other phases? 24 MR. HERRICK: Yes. The witnesses for Phase I are Alex 25 Hildebrand, Jerry Robinson, Bill Salmon and Bob Ferguson. 0282 01 Mr. Orlob will be in Phase II, and maybe another phase, and 02 the Bureau has declined to provide Lowell Ploss as a witness 03 in this phase. 04 C.O. CAFFREY: Thank you, sir. 05 So we will obviously have everybody up here as a panel 06 at the end for cross-examination. 07 Mr. Hildebrand, you were here yesterday and you took 08 the oath? 09 MR. HILDEBRAND: Yes, I was. 10 C.O. CAFFREY: Thank you, sir. 11 MR. HILDEBRAND: Is this mike working all right? 12 C.O. CAFFREY: Can you hear Mr. Hildebrand in the back 13 of the room? 14 Yes, they are nodding in the affirmative, sir. 15 ---oOo--- 16 DIRECT TESTIMONY BY SOUTH DELTA WATER AGENCY 17 BY MR. HERRICK 18 ---oOo--- 19 MR. HILDEBRAND: I will skip over portions of my 20 testimony that would be repetitious. 21 C.O. CAFFREY: I am sorry to interrupt, you have 22 designated Mr. Hildebrand's testimony to be 60 23 minutes. There is a 20-minute limitation on direct 24 testimony, I believe, per witness with a three hour total 25 limitation. 0283 01 MR. HILDEBRAND: Twenty minutes will be adequate. 02 C.O. CAFFREY: Is that accurate? We adhere to that 03 because this is a summary of your written submission. We 04 treat cross-examination, obviously, a little bit differently 05 because that is a series of process questions. We do ask 06 you to stay within the 20 minutes. 07 MR. HILDEBRAND: I will do so. 08 C.O. CAFFREY: Thank you. 09 MR. HILDEBRAND: In most years there is no surplus 10 water in the San Joaquin River system. It is all being 11 beneficially used to some point in time except for flood 12 releases. Increased stream flow taken from the system at 13 one point in time, therefore, results in a decrease at some 14 other time of the water needed to maintain water quality, 15 protect riparian water users and provide for public trust 16 needs. 17 This issue was explained in greater detail to you in 18 our testimony on April 21st. 19 There is a potential for more efficient use of the 20 limited supply by better multiple use and reuse of water. 21 It is also possible without depriving downstream needs to 22 purchase water that derives from increases in water yield by 23 new surface or subsurface storage or from decreases in 24 consumptive use of water by sellers. 25 However, these measures have not and will not happen 0284 01 under WR 95-6. 02 Prior to 1950 when the Friant Dam and the Delta Mendota 03 Canal went into operations, water quality in the river down 04 past Mossdale was always very good, and flows were ample 05 with very rare exceptions. The quality was better than the 06 new standards for Vernalis, considerably. The water quality 07 never got poorer than about 400 parts per million all the 08 way down to Mossdale, and it was more typically in the 200, 09 250 part per million range. So when we now have a water 10 standard that is considerably above that prior level, it is 11 not a complete redress of the impact of the CVP. It is only 12 a partial redress. And we particularly object to the 1 EC 13 figure for March and September, which are very important to 14 irrigation months for us, in case of March in the dry year 15 and in case of September primarily for orchard crops. 16 As you know from previous testimony, these features of 17 the CVP cause an average annual decrease in San Joaquin 18 River flow of 553,000 acre-feet of which 345,000 acre-feet 19 is a reduction in the summer flow. You will find that on 20 SDWA-14. Increases in exports from the Tuolumne and 21 increases in consumptive use of water from tributaries have 22 further reduced the inflow of the river to the South Delta. 23 For reference I am also including other exhibits which 24 we have given to you in other hearings. They are quite 25 extensive. 0285 01 Department of Water Resources, the Bureau of 02 Reclamation and South Delta Water Agency have an agreed 03 quantification of channel depletion, which is riparian 04 diversions and consumptive public trust needs in the South 05 Delta. This was developed in the course of negotiating a 06 settlement of SDWA 1982 lawsuit. The emphasis in that 07 connection was to assess the channel depletion in July, 08 which is our peak depletion month, but the DWR has extensive 09 data on the channel depletion for the Delta as a whole for 10 different months of the year; and by merely ratioing the 11 July figures then to other months we derived at the list for 12 the whole season. 13 WR 95-6 provides no assurance that these superior 14 downstream rights will be protected. 15 When the New Molones was built, it was expected to 16 provide a new water yield of about 250,000 acre-feet. The 17 state permit required that the project must release dilution 18 water to meet the 500 parts per million salinity standard at 19 Vernalis. 20 The need for the dilution is to partially redress the 21 salinity damage caused by the very salty drainage that 22 enters the river from the CVP west side service area. In 23 forecasting the yield of New Melones, the Bureau estimated 24 an average annual dilution requirement of about 35,000 25 acre-feet to the maximum of 70,000 in any year. This was a 0286 01 gross underestimate. 02 The requirement has been as high as 220,000 acre-feet 03 in a single year. And the years of greatest need are not 04 the critical years when the flows are low. Doesn't take a 05 lot of water to sweeten it up. It is obviously not wet 06 years when we don't need any releases at all. It is in the 07 intermediate years, typically below normal year or normal 08 year following a critical year. So that this needs to be 09 borne in mind relative to the kinds of allocations the 10 Bureau has proposed to provide water for that, to meet that 11 commitment. 12 This then substantially reduces the reservoir yield 13 available for other commitments. The Bureau has not reduced 14 its New Melones dilution requirement by controlling drainage 15 or providing other dilution, and it has refused to carry 16 over wet year water to provide quality control in below 17 normal years, even when there is reservoirs space available 18 for this purpose. We have requested this repeatedly and 19 have been denied emphatically. 20 They, therefore, do not consistently meet the standard 21 and do not expect to do so. We previously submitted an 22 analysis of their interim plan. It shoes that they expect 23 to violate the salinity standard in about 40 percent of the 24 water years. This analysis did not even include their plan 25 to make water purchases. Those purchases increased stream 0287 01 flows for fish by reducing flows at other times when they 02 are needed to contribute to quality control. This will 03 further increase the frequency of violations of the 04 standards. 05 When we go over Mr. Steiner's submittal of testimony, 06 we will be able to look at some of that data. 07 This underestimate of dilution requirement reduces the 08 beneficial project yield substantially. Extension of WR 09 95-6 would, in effect, condone these violations of the 10 salinity standard. 11 In your hearing for 1485 we submitted extensive 12 testimony on the loss of South Delta crop yields when 13 in-channel water salinity rises above about 450 parts per 14 million. We request that testimony be incorporated into 15 this record and can supply it if necessary. 16 There are about 80 different soil types in the South 17 Delta, as determined by the Soil Conservation Service, with 18 a wide range of permeability. The range goes to about a 19 hundredfold. 20 The loss is greatest for the substantial areas that 21 have high fertility but low permeability, and, hence, a low 22 ability to leach the salt load that comes down river from 23 the CVP service area. 24 The effective yield of New Melones for purposes other 25 than fish flows was further reduced by underestimating the 0288 01 flow required to meet an agreement for the Department of 02 Fish and Game. The Bureau only forecast a requirement of 03 65,000 acre-feet in dry years and 98,300 acre-feet in other 04 years. 05 In 1987 this was changed to a flow of 98,300 in dry 06 years and up to more than 300,000 acre-feet, depending on 07 year type in wetter years. They also made a 49,000 08 acre-foot firm yield contract commitment to the eastern part 09 of San Joaquin County, the Central Conservation District, 10 which they have since only honored in wet years. That was 11 not an interim contract. That was alleged to be a firm 12 yield. 13 A further over commitment resulted from their contract 14 with the Oakdale South San Joaquin Irrigation Districts. 15 Those districts had pre-1914 diversions rights to the amount 16 of their pre-1914 diversions for agricultural use within 17 their boundaries. They also had permitted and licensed 18 rights for storage of water. However, both of those rights 19 are limited by the actual amount they beneficially use. 20 They were given a contractual right from the Bureau for more 21 water than their historic diversions. The Bureau, then, at 22 times uses taxpayer money to buy back part of the contract 23 water that is in excess of the district's needs. 24 When this buy-back water is used to further augment 25 fish flows, there is a further depletion of water available 0289 01 in the watershed to meet water quality and downstream rights 02 at other times of the year or in subsequent years. 03 In the absence of the sale, that water would eventually 04 come downstream or generate return flow. An extension of WR 05 95-6 continued to delegate to the overcommitted Bureau the 06 discretion as to which obligations it chooses to meet. It 07 also procrastinates any effort to reduce the burden on New 08 Melones from mitigating the high salinity and lowering river 09 flows that have been caused by CVP. 10 Instead of extending WR 95-6, the overall management of 11 water in the watershed should be such that water provided to 12 fish flows will also serve for water quality control. In 13 the supplement flows needed for Vernalis, spring flows 14 should be provided in large part by reusing water instead of 15 depleting the insufficient supply of high quality tributary 16 water that now serves other needs. 17 The proposal that SDWA presented to you on April 21st, 18 1998, has been reviewed by numerous stakeholders and 19 agencies and has been modeled by DWR personnel with input 20 and oversight by technical experts from DWR, USBR, SDWA, 21 the Regional Water Control Board, and less extensively from 22 Contra Costa Water District, the San Luis and Delta Mendota 23 Water Authorities. The proposals is consistent with both 24 the 1994 Accord and 1995 Control Plan. 25 Referring to our March 6 letter to Mr. Pettit and 0290 01 others into the January draft report by WDR entitled STRIO 02 Studies of San Joaquin Recirculation and Reoperation of 03 Wetland Discharge and Tile Drainage. 04 I would like to add that in leading up to that analysis 05 we had extensive meetings with the drainers down there, 06 with Mr. Nelson's organization. They were very cordial, and 07 they assured me that the proposal we had was no problem for 08 them and, in fact, that they would support it. 09 The proposal could be fine-tuned to be even better. 10 However, we have modeled a proposal that is fairly simple. 11 Basically, we define a base case which involves no water 12 purchases or reduction in diversion rights, that includes 13 FERC flows in the Tuolumne and Davis Grunsky flows in the 14 Merced and fish flows in the Stanislaus per the 1987 USBR 15 Fish and Game agreement. 16 This base case, however, requires substantial releases 17 of New Melones water to meet the Vernalis salinity standard, 18 and it falls far short of providing the 31-days spring fish 19 flow at Vernalis required by the control plan. 20 In other words, those spring fish flows cannot be 21 furnished unless supplement water flows are derived. And as 22 I've explained, if you take the supplement flow out of 23 tributaries, it robs the beneficial use of that water at 24 some over time. Whereas, if you circulate it from the DMC, 25 it will take water away from anybody. And our recirculation 0291 01 plans is entirely predicated on the assumption that it will 02 be done in the manner that does not deprive anyone of 03 water. 04 One thing I might briefly mention about the analysis is 05 that these models, you know, have their limitations. The 06 models we use are pretty good in respect to water quality, 07 but are not very adequate with respect to water -- quantity, 08 but not on quality. The model was unable to iterate the 09 beneficial result in quality and consequent reduction in 10 demand on the New Melones Reservoir because it didn't 11 iterate the consequence of the inclusion of the South Delta 12 barriers in the plan. 13 The barriers substantially reduce the amount of salt 14 load that comes down the river, goes over the pumps and is 15 recycled back down DMC. So, it reduces the salt load in the 16 DMC. That in turn reduces the salt load delivered to the 17 west side service area, which then, again, reduces the 18 amount of salt load that enters the San Joaquin River, and 19 this reduces the requirement for dilution water out of New 20 Melones. That iterative improvement is not modeled, so that 21 the model shows savings in New Melones dilution water that 22 are considerably less than what actually occur. 23 The supplemental flow needed to meet the Vernalis 24 spring fish flow in the control plan is then provided by 25 releasing water from the Delta Mendota Canal to the Newman 0292 01 Wasteway. The DMC water will not degrade and will somewhat 02 enhance water quality in the river. 03 Water equivalent in quantity to the DMC releases is 04 captured by the export pumps and re-exported. This 05 recirculation of canal water is superimposed on the stream 06 and canal flows and the pumping that would occur in the base 07 case. 08 The third step is control the time of entry to the 09 river of some of the agricultural drainage that now reaches 10 the San Joaquin River via Salt and Mudd Sloughs. For the 11 purpose of the analysis, it is assumed that at least 50 12 percent of the agricultural drainage can be held back for 13 six weeks prior to the spring fish flow and the retained 14 drainage would then be released during the 31-day fish flow 15 in order to dilute the drainage with fish flows from 16 tributaries instead of diluting it with water quality 17 releases from New Melones. 18 When I discussed this with the drainers they assured me 19 that was something that they were capable of doing. 20 The plan does not take advantage of reduction of 21 salinity in the Mendota Canal that results from using South 22 Delta barriers to avoid the capture and a re-export of the 23 salt load in the San Joaquin River. 24 We have a conceptual operating plan for these barriers 25 that we believe will optimize protections of fish, while 0293 01 protecting downstream diverters; and, furthermore, a benefit 02 of the plan is to substantially improve the stream flow in 03 the river downstream of the Merced River during the pulse 04 flow period. That reach of river. From the Salt and Mudd 05 Sloughs down to the Tuolumne is very, very poor in both flow 06 and quality, even during the pulse flow, if you do not adopt 07 these measures. 08 A substantial overall savings in water costs and a 09 better distribution of stream flow and in-stream quality 10 would result from the proposal. The benefits derived from 11 providing the supplement water for fish flow and the water 12 needed for dilution of drainage salts by this proposed 13 method is compared to meeting those needs by reducing the 14 diversion rights or by water purchases on the tributaries. 15 We believe that this proposal is a much more 16 water-efficient way to implement the control plan as 17 compared to other proposals, also far less expensive. 18 To implement the control plan by other means would, 19 therefore, be an unreasonable use of water, which would be 20 damaging to water users in the watershed, including the 21 South Delta. Extending WR 95-6 would not result in a more 22 reasonable use of water. 23 WR 95-6 does not address the fact that the three South 24 Delta tidal barriers needed to mitigate the water level of 25 the water problem, quality problems resulting from the 0294 01 operation of the export pumps. The export pumping and the 02 barriers needed to mitigate that pumping should be viewed as 03 a package. When the tidal barriers are functioning, the 04 water level and the water quality impacts are avoided. If 05 the pumping is stopped by take limits, the barriers are not 06 needed. When the barriers are not functioning on an 07 as-needed basis, the export pumps must be curtailed as 08 necessary to avoid both the water level and quality problems 09 and any exceedance of the take limit. Same take limits 10 should apply to the whole package. 11 This linkage requires that there be a system of 12 monitoring and forecasting water levels and in-channel water 13 quality, including salinity and dissolved oxygen. We have 14 dissolved oxygen problems in the Old River and Salmon Slough 15 areas, as well as those that are down towards Stockton. 16 C.O. CAFFREY: Mr. Hildebrand, I just want to remind 17 you that the yellow light is on. You have two minutes to 18 summarize, and that will complete your time for testimony. 19 MR. HILDEBRAND: I will finish in two minutes. No 20 problem. 21 The Department of Water Resources has made great 22 efforts to get these barriers installed, operated on an 23 as-needed basis and, if so, our interface with DWR would be 24 almost entirely taken care of. But they have been prevented 25 by some of the other environmental agencies from getting the 0295 01 permits on an as-needed basis. 02 The CalFed Operation Group has become perceptive and 03 responsive to SDWA comments on the effect of its operating 04 decisions. However, final decisions are made by the 05 agencies and the project operators. SDWA is not, therefore, 06 reliably protected by the process. In fact, on one 07 occasion, which is mentioned in the testimony, we were 08 mistreated to a significant degree. 09 Skipping on down, then, the State Board should not 10 allow any group, whether it be the operations group or the 11 Bureau, to make decisions that exacerbate the adverse 12 impacts of the export pumps. And if you just extend 95-6, 13 that continues to be the case. 14 That concludes my testimony. 15 C.O. CAFFREY: Thank you, Mr. Hildebrand. 16 MR. HERRICK: Mr. Chairman. 17 C.O. CAFFREY: Yes. 18 C.H. O. CAFFREY: There is one issue I would like to 19 highlight, and I realize that you will go over his 20 testimony, but can I ask him one or two questions for one 21 more short explanation? 22 C.O. CAFFREY: Actually, you have 30 seconds. I am 23 going to be very strict about staying within the time limits 24 on direct because they are summarizations. 25 MR. HERRICK: No problem. 0296 01 C.O. CAFFREY: When that little siren goes off, you are 02 finished. 03 MR. HERRICK: Mr. Hildebrand, would you give a real 04 brief explanation of how the CalFed Ops Group suspended 05 operations of the barriers in order to allow export pumping 06 to increase. 07 MR. HILDEBRAND: They required that the barriers, which 08 were installed at that time, be opened and not utilized at 09 the same time that the exports were going to be allowed to 10 increase rate of export. And that, of course, was directly 11 adverse to our interest. 12 MR. HERRICK: Was the South Delta Water Agency 13 contacted before that action was taken? 14 MR. HILDEBRAND: No. 15 MR. HERRICK: Thank you. 16 MR. HILDEBRAND: Just beat it. 17 MR. HERRICK: Would the Board like cross-examination of 18 Mr. Hildebrand now or after we get the rest of the -- 19 C.O. CAFFREY: I think our regulations really allow for 20 it to be done, primarily it's a panel after we hear from 21 everybody in the case in chief. We just bring everybody 22 back up here after that. 23 MEMBER DEL PIERO: Mr. Hildebrand, how many years have 24 you served on the Board of Directors of the South Delta 25 Water Agency? 0297 01 MR. HILDEBRAND: Since it was formed, I am the only 02 member of the original Board that's still alive. It's a 03 pretty tough job. 04 MEMBER DEL PIERO: So you were, in fact, present at the 05 creation in regards to the agency you are representing? 06 MR. HILDEBRAND: Absolutely. I believe in was in '73, 07 but I could be wrong about the date. 08 MEMBER DEL PIERO: Thank you very much. 09 C.O. CAFFREY: With regard to the objection from Mr. 10 Brandt, respectfully, Mr. Brandt, I am going to overrule 11 your objection that we -- Mr. Hildebrand is an engineer, 12 somebody who has appeared before this Board for a long 13 time. It goes to the Board Members, again, in their 14 deliberations to grant whatever weight of evidence they feel 15 is appropriate. 16 MR. BRANDT: I understand, Mr. Chairman. The only 17 thing I would ask is that the alternative that I have there 18 is that we would like to -- there are a number of pieces 19 here that Mr. Hildebrand has mischaracterized or misstated, 20 whatever. We would request that we have a right to present 21 rebuttal testimony. But we think, to save the Board's time, 22 it is not appropriate in this phase. A lot of this issue is 23 more about the San Joaquin River. We would like to have and 24 remain and save our rights to present rebuttal testimony in 25 Phase II or Phase V. 0298 01 C.O. CAFFREY: I believe our instructions and our 02 regulations with regard to this hearing allow that to occur 03 in any of the phases. 04 Is that correct, Ms. Leidigh? 05 MS. LEIDIGH: Not exactly. If they present responsive 06 testimony in a later phase than this one -- 07 C.O. CAFFREY: I can't hear you, Ms. Leidigh. 08 MS. LEIDIGH: If they present responsive testimony in a 09 later phase, it should be as part of a case in chief. We 10 have said that in other letters, and that would allow the 11 parties, the other parties, then to have an opportunity to 12 respond to their response. If, on the other hand, they wish 13 to rebut it now through responsive evidence and testimony, 14 at the end of this phase, then they would be able to do that 15 without having further surrebuttal. 16 C.O. CAFFREY: I think she said that you can present 17 some rebuttal at a later date. 18 MS. LEIDIGH: It has to be part of his case in chief if 19 he does it later. 20 C.O. CAFFREY: As part of your case in chief. 21 Mr. Robbins. 22 MR. ROBBINS: Mr. Caffrey, the problem with that is 23 that the time for presenting the case in chief in Phase II 24 has expired. Given the Board's ruling relative to the 25 relevancy for Phase I, we had expected to address this 0299 01 particular matter in Phase II. 02 I would respectfully disagree with the ruling 03 concerning relevance in Phase I, but certainly relative to 04 Phase II it is appropriate to be able to rebut in Phase II 05 as well as to be able to cross-examine Mr. Hildebrand there 06 because of the assertions that were made concerning those 07 matters. 08 We have taken Mr. Hildebrand's deposition. We would 09 like to utilize that deposition. That will not be available 10 until Phase II occurs. 11 MR. O'LAUGHLIN: Mr. Chairman. 12 C.O. CAFFREY: Mr. O'Laughlin. 13 MR. O'LAUGHLIN: Thank you, Mr. Chairman. I would like 14 to back that up again. Because given the opening statement 15 or policy statement, whatever it was, which was followed up 16 by the testimony of Mr. Hildebrand, I couldn't tell where 17 Phase I started and Phase V ended, and everything 18 in-between. 19 COHEARING OFFICER STUBCHAER: You couldn't tell, Tom? 20 MR. O'LAUGHLIN: No, I couldn't. I was having 21 difficulty. Given that the testimony was presented in their 22 opening statement and in their policy statement as one 23 testimony, I would like to reserve the right to call Mr. 24 Hildebrand back in Phase II for cross-examination and 25 rebuttal at that time. Because he's brought up the San 0300 01 Joaquin River Agreement. He's brought up the Interim 02 Operations Plan. He's brought up his recirculation 03 alternative. He's brought up South Delta salinity. And I 04 don't think it is fair in the extension of 95-6 that those 05 issues were brought up. 06 So I would request that we have the ability to bring 07 back Mr. Hildebrand for cross-examination in Phase II as 08 well as rebuttal testimony at that time, even if I have to 09 call him as an adverse witness. 10 C.O. CAFFREY: Thanks everybody. Let's take a time out 11 off the record here. I want to discuss this. 12 (Break taken.) 13 C.O. CAFFREY: Please take your seats please, we are 14 back on the record. 15 Mr. Brandt, I am going to make a ruling on your 16 objection right now. I am going to overrule your objection 17 as it pertains to presenting rebuttal at later phases for 18 the following reasons: 19 You are allowed to do that in this phase and to 20 cross-examine Mr. Hildebrand. He submitted his testimony on 21 time, and he only spoke to those portions of his testimony 22 which he had designated as Phase I testimony. He stopped 23 there; he did not go into testimony which I believe is 24 designated for later phases. So, you have the right, since 25 you have had his testimony for some time -- he literally 0301 01 read it verbatim. I think he digressed with examples here 02 and there. You have a right to cross-examine him today and 03 to present rebuttal evidence later on if you wish in this 04 phase. So that is the ruling. 05 Mr. Jackson, you raised your hand? 06 MR. JACKSON: Yes, your Honor. This is the first time 07 that this has appeared, and I would like to address a motion 08 to the Board. And it is that Mr. Brandt not been allowed to 09 take part in cross-examination of any witness nor the 10 federal government be allowed to put on any witness until 11 they submit to the jurisdiction of the State Water Board. 12 I just made a request of Mr. Brandt as to whether or 13 not they have waived sovereign immunity. He indicated they 14 have not. The situation is, in this particular 15 circumstance, that this hearing allows them the opportunity 16 to appear, to put on evidence and not be subject to the 17 Board's jurisdiction. That puts all parties at a 18 tremendous disadvantage. 19 And if we are really going to make anything happen 20 here, the federal government needs to be, as the largest 21 diverter in the Sacramento Valley, needs to be under the 22 Boards's jurisdiction clearly. And so I would ask that 23 until the federal government agrees to waive sovereign 24 immunity and to submit itself to the Board's jurisdiction, 25 that they not be allowed to put on any evidence or take part 0302 01 in the hearing. 02 C.O. CAFFREY: Mr. Nomellini. 03 MR. NOMELLINI: I want to join and that expand that 04 motion. 05 I think their waiver of sovereign immunity should extend to 06 court review after this proceeding. 07 C.O. CAFFREY: I am sorry, I was distracted. Would you 08 please start your statement again. 09 MR. NOMELLINI: I join in Mr. Jackson's motion and 10 extend it. I think the Bureau, if it is going to get water 11 rights from the State of California, should not only submit 12 to the jurisdiction of the State Board but waive sovereign 13 immunity as to judicial review thereafter. 14 That is what happened in the case where we attempted to 15 get judicial review of the prior division on 95-6, the 16 Bureau, who is benefiting from that decision and who had 17 petitioned this Board for the very relief that was granted 18 refused to subject the jurisdiction of the state court, 19 thereby creating the indispensable party issue that was 20 raised by the state. 21 I would join in Mr. Jackson's motion and expand it, and 22 that if they want to participate in this proceeding, they 23 ought to submit to the jurisdiction of this Board and to any 24 court review of this decision thereafter. 25 C.O. CAFFREY: Thank you, Mr. Nomellini. 0303 01 Mr. Shephard, you rise? 02 MR. SHEPHARD: Very briefly. On behalf of San Joaquin 03 County I would support the motion which Mr. Jackson and Mr. 04 Nomellini have made. We are, as Mr. Nomellini has very 05 adequately pointed out, in a situation where there is no 06 judicial relief from your actions the way it is presently 07 constituted, and I join in the motion. 08 C.O. CAFFREY: Thank you, sir. 09 Mr. Herrick. 10 MR. HERRICK: I would like to join in it also. I think 11 that part of your decision should be based on the fact that 12 I requested that the Bureau allow me to exam Mr. Lowell 13 Ploss in order to find out how they've operated under WR 14 95-6, and they have declined to provide him for this phase. 15 C.O. CAFFREY: Mr. Birmingham. 16 MR. BIRMINGHAM: As an attorney representing one of the 17 principal contractors of the Bureau of Reclamation, we 18 oppose the motion. If Mr. Brandt and representatives of the 19 United States Government that are here today wanted to waive 20 sovereign immunity, they could not. There is only one 21 entity that can waive the sovereign immunity of the United 22 States, and that is Congress. 23 I suppose we could suspend these proceedings and ask 24 Congress to enact a law waiving sovereign, but I don't 25 suspect anyone would support that. The circumstances which 0304 01 give rise to the inability of parties to ask a state court 02 to review this Board's action if the United States would be 03 affected by that judicial review results from a California 04 state law. The District Court of Appeals' decision in 05 Central Delta Water Agency versus State Water Resources 06 Control Board and the dismissal of that was based on state 07 law, not federal law, state law. 08 And, again, as I said yesterday, if these parties want 09 a remedy, they can go to the State Legislature and ask the 10 State Legislature to amend the Code of Civil Procedure. But 11 we have to deal with the circumstances or the cards that 12 were dealt, and the United States has sovereign immunity. 13 They, as I recall, there is a case that says that the Board 14 can impose terms and conditions on their permits. That 15 issue has been resolved. And so to prevent them from 16 participating in this proceeding would be to deprive their 17 contractors of significant rights. So I would oppose the 18 motion. 19 C.O. CAFFREY: Thank you, Mr. Birmingham. 20 Mr. Sexton, were you going to speak, sir? 21 MR. SEXTON: I would like to address the ruling of The 22 Chair to Mr. Brandt's previous motion. If you'd like to get 23 this issue resolved -- 24 C.O. CAFFREY: Let's get this one out of the way. 25 Mr. Brandt. 0305 01 MR. BRANDT: As this Board probably knows, we, under 02 reclamation law, under federal law, we are to some extent 03 required to come to the state entity that gives water rights 04 to obtain water rights for any projects like the Central 05 Valley Project, reclamation. So to that extent we are -- to 06 the extent that that law provides, we are under your 07 jurisdiction for obtaining the rights and dealing with 08 reservations. That piece of Mr. Jackson's is taken care of; 09 we are under your jurisdiction for these purposes. 10 Where we are not, and Mr. Birmingham is right, I cannot 11 waive the jurisdiction on the larger issue of what happens 12 after we -- if whatever comes out of here, do we go to 13 court? We cannot waive that. We have not waived that and 14 we continue to assert that we may retain that. 15 C.O. CAFFREY: Thank you, Mr. Brandt. 16 I believe that Mr. Del Piero has a question. 17 Ms. Leidigh. 18 MS. LEIDIGH: I have a question for Mr. Brandt. 19 My understanding of the waiver of sovereign immunity by 20 the Bureau or nonwaiver, whatever, is that it is a matter 21 of policy with Department of Justice that the United States 22 does not waive its sovereign immunity to come into state 23 court. Is that right; it is not absolute with Congress? 24 MR. BRANDT: I think there have been various -- 25 actually, there are even some recent cases on that. 0306 01 Actually, some recent court cases have said it is only with 02 Congress. But there are a number of things. It depends on 03 the circumstances on some cases, in certain kinds of cases 04 and to the extent its interpretation of the extent of waiver 05 is already under reclamation and some other issues, under 06 reclamation law and other laws. 07 It is with Congress, but it is just an interpretation 08 of what the extent of the waiver Congress had already given 09 under reclamation law. 10 MS. LEIDIGH: My reading of the law is that it is a 11 policy of the Department of Justice that you do not waive, 12 not that Justice could not change its policy. 13 MR. BRANDT: Okay. I will not necessarily accept that 14 understanding, but that is fair enough. 15 C.O. CAFFREY: I'm sorry, go ahead. 16 MR. BRANDT: I think that is probably on that one, 17 actually, I would like to join with Mr. Herrick's request 18 for something else when you get a chance. 19 C.O. CAFFREY: Mr. Del Piero, you have a question? 20 MEMBER DEL PIERO: Yes. Is there a reason why a 21 request for you to have staff of the Bureau appear and it is 22 being denied? 23 MR. BRANDT: No. We actually have offered and we said 24 we would offer Mr. Ploss. And he will be testifying in 25 Phase II. So we are just saying -- 0307 01 MEMBER DEL PIERO: If someone needs to cross-examine 02 him for Phase I, that does no good. 03 MR. BRANDT: We are providing him as provided. In 04 order for anyone from the United States Government to 05 testify, they have to get permission of their, basically, 06 whoever runs the agency. So ultimately, it is of the 07 Secretary. So that is -- 08 MEMBER DEL PIERO: Please, please. Don't even go 09 there. Please don't insult me. Now, give me an answer. 10 MR. BRANDT: Mr. Del Piero, we have agreed to do that. 11 We received a request. Five of the six questions all 12 related to San Joaquin River. We agreed to do this, 13 basically, just for an amount of time, and an amount of time 14 in preparation and other things of a witness. We agreed to 15 do it. We agreed to provide him as part of these phases, as 16 part of these hearings. That is the extent of what we 17 agreed to do. We are happy to do that. We will provide him 18 in Phase II. 19 C.O. CAFFREY: Have we heard from everybody on this 20 objection? 21 MEMBER DEL PIERO: Excuse me. How many times have you 22 checked with the Secretary about the witnesses you are going 23 to be presenting in Phase II? 24 MR. BRANDT: The office is the Secretary's 25 representative. 0308 01 MEMBER DEL PIERO: I didn't ask that. How many times 02 have you checked with the Secretary? 03 MR. BRANDT: I have not checked with the Secretary. 04 C.O. CAFFREY: Anything else on this from anybody 05 wishing to speak on the objection? 06 MR. JACKSON: I would just like to respond. Clearly, 07 the Board has authority if they style this an adjudication 08 of rights under the McCarran Act. We are all trying to 09 avoid a general adjudication because of the increased number 10 of people we would need, the small water users, the 11 relatively straight-jacketed proceedings of this particular 12 circumstance. 13 In this regard, however, that would be the way that 14 jurisdiction over the Bureau, and this is going to come up 15 with United States Fish and Wildlife testimony, in the 16 National Marine Fisheries Service testimony, any federal 17 testimony in this case. And so, it seems to me, that for 18 the benefit of sort of not messing around and getting 19 decisions made, Secretary Babbitt ought to be requested to 20 submit himself to the jurisdiction of this Board so we can 21 get on with it. 22 C.O. CAFFREY: All right. Thank you. 23 Mr. O'Laughlin. 24 MR. O'LAUGHLIN: Briefly, to respond to that statement. 25 I don't think we want to go to the McCarran, realizing that 0309 01 I have been through that for the last eight years with the 02 United States Bureau of Reclamation on a general 03 adjudication. If you thought this proceeding was bad now, 04 it would be at least four times as bad if we had to bring in 05 every water user within the basin, in the Sacramento and San 06 Joaquin Basins, as well as for a general adjudication, as 07 well as groundwater. 08 C.O. CAFFREY: I don't know what you mean by the word 09 "bad." But everybody at this dais -- the oldest person is 10 27 years old. We just look like this. 11 I am going to ask -- before I rule, I am going to ask 12 Mr. Attwater to enlighten us with some comments. 13 MR. ATTWATER: We can put this to bed very simply. We 14 have a whole string of cases with the Supreme Court and 15 recently with the Ninth Circuit Court of Appeals and CVPIA 16 that spells out in gruesome detail the state's authority in 17 regards to the water rights permits that were issued to the 18 Bureau of Reclamation. So I would recommend that Mr. 19 Jackson's motion be denied, and certainly this is not a 20 McCarran Act case. 21 C.O. CAFFREY: Thank you, for everybody's comments. 22 The ruling is that the objection is overruled. The U.S. 23 Bureau of Reclamation will be allowed to participate in this 24 proceeding as a full party. 25 Mr. Sexton. 0310 01 MR. SEXTON: Thank you, Mr. Caffrey. I would like The 02 Chair to reconsider the ruling that it just made previous to 03 this discussion on Mr. Brandt's request that he not have to 04 put on rebuttal testimony in Phase I. 05 The situation that we are faced with, sir, is that 06 there are many parties here who are signatories to the San 07 Joaquin River Agreement. Those parties might otherwise be 08 adverse parties. For example, Member Brown made a mention 09 to Mr. Herrick a few moments ago about work that the Panoche 10 Water District and Drainage District is doing in connection 11 with the Grassland Bypass Project to assist in salinity in 12 the San Joaquin River. So have my clients, Firebaugh and a 13 small area of the Central California Irrigation District are 14 also involved in that effort. 15 The problem that I am faced with, sir, is that if I 16 have to put on adversarial evidence, for example, under the 17 Board's hearing notice as it exists right now that I have to 18 put on evidence for Phase V by July the 6th, then some of 19 that evidence could be adversary to parties to the San 20 Joaquin River Agreement, and I don't want to go there. 21 And I am concerned about Ms. Leidigh's statement a few 22 minutes ago that any evidence of that nature would have to 23 be part of a party's case in chief. If it is part of my in 24 chief, I have to submit it on July the 6th, at least for 25 Phase V. If I can do it rebuttal, I don't have to do it 0311 01 then. I choose not to do it then if I don't have to. 02 C.O. CAFFREY: An interesting point, Mr. Sexton. Why 03 don't we take a break now; that will give us an opportunity 04 to deliberate that question. 05 Before we do that, Mr. O'Laughlin. Briefly, please. 06 MR. O'LAUGHLIN: Very briefly. I think, Chairman 07 Caffrey, the issue that you are faced here with this morning 08 is really tied up in the motion that I made previously. We 09 are going to have to get it very clear as to when cases in 10 chief are coming in, when parties will be allowed to present 11 rebuttal testimony and when parties to the San Joaquin River 12 Agreement will be allowed to present rebuttal testimony or 13 cross-testimony because we have given a dispensation not to 14 present such evidence against other parties or adversarial 15 testimony. So, I think it all gets tied back into that 16 quagmire of process that we need to sort through so that it 17 is fair to all the parties that they be allowed to present 18 their cases, but allow the parties the opportunity to 19 cross-examine them and present rebuttal, but at the same 20 time try to preserve it so that the San Joaquin River 21 Agreement doesn't fall on the shoals of the reef presenting 22 adversarial testimony before July 14th comes up. 23 C.O. CAFFREY: I think all of you raise interesting 24 points. We are in some ways forging new ground here as we 25 do what we call the phase proceeding. And it may well be 0312 01 that the Board owes you much more information as to how we 02 are going to proceed, which may well come out in the first 03 part of Phase II. But that still doesn't get to Mr. 04 Sexton's question. 05 What we will do now is we will break. We will have 06 some consultation up here during the break and see where 07 that leads us. 08 Thank you. 09 (Break taken.) 10 C.O. CAFFREY: Let's take our seats and resume the 11 hearing, please. 12 We are back on the record. 13 Mr. Sexton, I'm going to rule on your request that -- 14 Mr. Del Piero is having trouble keeping track of what 15 we are doing. 16 MEMBER DEL PIERO: I can keep track. 17 C.O. CAFFREY: I am going to rule on your request that 18 I reverse my ruling with regard to Mr. Brandt. I am going 19 to deny that request, but I am going to state today that I 20 am compelled and very interested by your concerns and your 21 argument about the submission of your exhibits for Phase 22 V. And because of that, I am going to suspend the date for 23 that submission, and we will announce at some future date 24 when those exhibits need to be presented, and we will have 25 staff notify parties today that that date is suspended. 0313 01 Mr. Sexton. 02 MR. SEXTON: Thank you, Mr. Chairman, that will be very 03 helpful. 04 C.O. CAFFREY: Appreciate it. You will hear from us in 05 a later date as to when that information is to be submitted. 06 MR. BRANDT: May I just join in Mr. Herrick's request 07 that the Board incorporate the salinity records for the last 08 three years into the record for this hearing for this 09 phase. I would join in his request that that happen. 10 C.O. CAFFREY: Somehow that request got past me. I 11 didn't hear that request. 12 MR. HERRICK: What I requested was the activities under 13 WD 95-6 and makeup pumping be included. 14 MR. BRANDT: I join in the request that it includes 15 salinity records as well. 16 C.O. CAFFREY: Isn't that already in the record? 17 MS. WHITNEY: I am not sure what information that they 18 are talking about. We have some information in our files, 19 but DWR may have additional records that we don't have. So, 20 I would like Mr. Herrick to be more specific about what it 21 is he wants in. 22 C.O. CAFFREY: Let's deal with one thing at a time 23 here. Mr. Herrick, since I called on Mr. Brandt, he was 24 joining in something that I am not even familiar with, nor 25 do any Board Members seem to be familiar with; can you be a 0314 01 little more specific? 02 MR. HERRICK: Yes. In my opening remark I was 03 referring to what has gone on under 95-6 should be part of 04 the record considering whether to extend it or not. In 05 other words, the information about what happened under those 06 permit changes should be included. 07 MS. WHITNEY: What information specifically do you want 08 included? Have you gone through our files to see what is in 09 there? Can you identify certain documents? 10 MR. HERRICK: No. Rather than do that, what I have 11 done is, a later witness here, I have South Delta Exhibit 12 Number 26 includes various correspondence between the 13 parties requesting makeup pumping, the State Board and my 14 comment. I am trying to exclude some things or no things, I 15 have some of them and I have submitted them. But I am just 16 trying to get into the record that there was a makeup 17 pumping issue. 18 C.O. CAFFREY: You have some of these documents as your 19 exhibits? Why don't we deal with that when we get to that 20 phase of your case in chief. 21 Yes, Mr. Stubchaer and then Mr. Del Piero. 22 C.O. STUBCHAER: Was this an exhibit -- this is a 23 numbered exhibit? 24 MR. HERRICK: Exhibit 26. 25 C.O. STUBCHAER: Is that in what you submitted? 0315 01 MR. HERRICK: Yes. 02 C.O. STUBCHAER: Well, it is already there. 03 C.O. CAFFREY: I believe you are saying it is partial? 04 MR. HERRICK: I just took out my correspondence file, 05 and I took out the correspondence on makeup pumping. 06 C.O. CAFFREY: As I said a moment ago, let's deal with 07 it when we get to that. 08 MR. HERRICK: I don't mean to mess it up. 09 C.O. CAFFREY: Mr. Del Piero, did you have something? 10 MEMBER DEL PIERO: Yes, I do. Go ahead, I think 11 Barbara has another issue. 12 MS. LEIDIGH: I was just commenting on this issue. I 13 wanted to find out whether there was -- whether the exhibit 14 that you already presubmitted is all that you are asking for 15 or -- 16 MEMBER DEL PIERO: That is what I was asking. 17 C.O. CAFFREY: Whether it is partial. 18 MS. LEIDIGH: -- or whether you are asking that other 19 documents be included in the record? 20 MR. HERRICK: I am just going to mess this up, and I am 21 sorry. This is what my original intent was. 22 I have some records that we were going to talk about 23 when we got here. If they are considering extending 95-6, I 24 would think that the Board's file on makeup pumping should 25 be part of the record, in other words, the history of what 0316 01 happened under 95-6. I am not demanding that. 02 Why don't we just ignore that. I have some exhibits. 03 C.O. CAFFREY: Are you withdrawing your motion? 04 MR. HERRICK: I knew I would mess this up. I will 05 only submit -- I will only be asking for my exhibits. I am 06 not asking for further information to be -- 07 C.O. CAFFREY: There is no need to discuss it any 08 further. Mr. Herrick has indicated that he is only 09 submitting his exhibit. 10 Mr. Lilly. Excuse me, I have stepped on Mr. Del Piero. 11 It is his turn. 12 Mr. Del Piero. 13 MEMBER DEL PIERO: Mr. Herrick, during the course of 14 Mr. Hildebrand's presentation, he indicated that a report 15 regarding crop production in the Delta during the course of 16 the last three or four years indicated declines in 17 production, and he also said at the time of his 18 presentation, if we did not have that in the record, he 19 could, in fact, make that available. 20 Do you know if that is, in fact, in our record? 21 MR. HERRICK: What he is referring to was the testimony 22 given by the South Delta Water Agency in D-1485 23 proceedings. Other parties have asked me for copies of 24 that; it is in a storage room somewhere. I believe that 25 should be made part of the record. 0317 01 His request was -- his request was that that 02 information that had been already presented in a prior 03 proceeding be made -- been presented here. If the Board 04 does not -- we can go dig it out of our files and present it 05 later if necessary. 06 C.O. CAFFREY: Are you saying that he was referring to 07 a document that is already in the Delta records? 08 MR. HERRICK: Correct, for D-1485. 09 MS. WHITNEY: No, it is not in the record for this 10 proceeding. We did not enter it in. 11 MEMBER DEL PIERO: That is why I am asking the 12 question. 13 MS. WHITNEY: The only thing that is in the record for 14 this proceeding is the decisions for the previous 15 proceedings. If he wants to enter something specific, he's 16 going to have to enter each -- 17 C.O. CAFFREY: As an additional -- 18 MS. WHITNEY: -- document as an additional exhibit. 19 C.O. CAFFREY: Mr. Del Piero. 20 MEMBER DEL PIERO: I would like to see that report and 21 I would like to review that to determine whether or not the 22 Board feels it appropriate to incorporate into the record. 23 C.O. CAFFREY: Thank you. 24 MEMBER DEL PIERO: If you would be kind enough to 25 provide me a copy of it and four other copies for the other 0318 01 Board Members, I would appreciate that as well. 02 MR. O'LAUGHLIN: Is that going to be served on all the 03 parties? 04 C.O. CAFFREY: Yes, it has to be. 05 MS. WHITNEY: You can enter it by reference, I believe, 06 because it is in the Board's record, but you have to 07 identify where in the Board's records it is. 08 MR. HERRICK: I can do either. 09 C.O. CAFFREY: Ms. Leidigh, may we accept that as an 10 evidentiary exhibit by reference? 11 MS. LEIDIGH: If Mr. Herrick is going to offer an 12 exhibit in evidence by reference, I think he needs to follow 13 the usual procedures for presubmittals and giving people an 14 opportunity to take a look at it, and so on, which is the 15 first problem. 16 Yes. In theory if everything is done, all the 17 procedures are followed, the Board can accept documents that 18 it has in the files by reference, if they're governmental 19 publications and are readily available to other people. 20 But the Board has discretion not to accept them if it 21 appears that it would be unfair to the other parties. Now, 22 I understand -- I gather from what Mr. Herrick said that he 23 thinks these documents are in the Board's files. That is 24 one step. But there are other steps involved with this. It 25 hasn't been presubmitted. 0319 01 MEMBER DEL PIERO: Mr. Chairman. 02 C.O. CAFFREY: Wait a minute. We have Ms. Forster 03 first. And I am still not clear on what Ms. Leidigh said. 04 In 25 words or less, what does he have to do if he wants to 05 submit it? 06 MEMBER DEL PIERO: Mr. Chairman, I need a clarification 07 as to what that document is. Because it was my 08 understanding during the course of Mr. Hildebrand's 09 presentation that that document referenced productions over 10 the course of the last several years. 11 Are we talking about a 14-year-old document? 12 MR. HERRICK: We are not talking -- we are talking 13 about the testimony given for the effects on crops resulting 14 from salinity changes in the irrigation water. I don't 15 believe that original testimony gives you a specific year in 16 "this year this happened." It says, based on various 17 sources, if the salinity of the water applied to the crop is 18 such, then this crop will decrease this much, this crop will 19 decrease that much. 20 MEMBER DEL PIERO: Forget my request. 21 C.O. CAFFREY: Forget your request? 22 MEMBER DEL PIERO: Yes, sir. 23 C.O. CAFFREY: Ms. Forster. 24 MEMBER FORSTER: I was going to ask for clarification. 25 I was guessing that was about 25 years old. 0320 01 C.O. CAFFREY: Good guess. 02 MR. HERRICK: D-1485, yes. 03 MEMBER DEL PIERO: When he made his comments, Mr. 04 Chairman, I didn't realize he was talking about old studies. 05 I thought he was talking about things that had been produced 06 in the last three or four years. 07 C.O. CAFFREY: Then, you do not wish to see the 08 document; is that correct. 09 MEMBER DEL PIERO: Yes. 10 C.O. CAFFREY: Is there a desire to enter into the 11 records -- Mr. Brandt, you have something? 12 MR. BRANDT: Mr. Chairman, thank you. If you do decide 13 to enter it into the records, we just ask that document was 14 pretty thoroughly cross-examined, apparently 25 years ago. 15 So, if you are going to decide to put that in, I would ask 16 that the cross-examination on that document be put in, or 17 otherwise just not put in. 18 C.O. CAFFREY: There is no request before this Board, 19 as I understand it at this moment, to put that in the 20 record. Therefore, it is not in the record, the record of 21 this hearing. 22 Mr. Lilly. 23 MR. LILLY: Alan Lilly, Mr. Caffrey. I just would like 24 clarification on the extension of the deadlines for 25 subsequent phases. I think it would be helpful for the 0321 01 other parties. Is that just for the Phase V deadline or is 02 it also for VI and VII? 03 C.O. CAFFREY: The request was for Phase V, and at this 04 point in time it's just for Phase V. 05 MR. LILLY: The deadlines for VI and VII are as 06 previously noted? 07 C.O. CAFFREY: They are as previously noted. 08 MR. LILLY: Thank you for the clarification. 09 C.O. CAFFREY: At this moment they are as previously 10 noted. 11 Thank you, sir. 12 All right. Dare I admit that I have lost track. We 13 are about to hear your next witness. 14 MR. HERRICK: Yes, Mr. Chairman. Thank you. 15 I would like to call up my three other witnesses: 16 Jerry Robinson, Bob Ferguson and Bill Salmon. They have not 17 taken the oath. 18 (Oath administered by C.O. Caffrey.) 19 MR. HERRICK: We submitted their testimony previously. 20 Their testimony, numbers for the exhibits for testimony: 21 Jerry Robinson is 31; Bill Salmon is 32; and Bob Ferguson is 22 33. 23 To expedite things, I will ask a few brief questions to 24 elicit the main parts of their testimony rather than read it 25 or summarize it, if you don't mind. 0322 01 Mr. Robinson, would you please state your name for the 02 record. 03 MR. ROBINSON: Jerry Robinson, 3382 Carlin Road, 04 Stockton, California. I am a farmer in the South Delta on 05 Roberts Island. 06 MR. HERRICK: Would you briefly give the Board the 07 various affiliations you have. By that I mean South Delta 08 Water Agency. 09 MR. ROBINSON: President of the South Delta Water 10 Agency, Vice President of the Delta Water Users Association. 11 I'm on two reclamation districts. I'm affiliated with the 12 San Joaquin County Farm Bureau Federation. I have been 13 farming since 1964 when I was 21, and I have been in the 14 Delta all my life. 15 MR. HERRICK: Mr. Robinson, are your diversions for 16 farming in the Delta? 17 MR. ROBINSON: Yes. 18 MR. HERRICK: Could you generally explain to us where 19 your diversions are located. 20 MR. ROBINSON: We have our main area of farming on 21 Roberts Island, upper and middle division. We divert water 22 out of the San Joaquin River and out of the Middle River. 23 We also have a ranch in the Central Delta Water Agency, just 24 north and west of Stockton about four miles. We take water 25 out of White Slough on that. 0323 01 MR. HERRICK: What crops do you grow generally? 02 MR. ROBINSON: We raise alfalfa, wheat, corn, 03 safflower, sugar beets, lease out land for tomatoes and 04 melons. 05 MR. HERRICK: In what months do you -- in what months 06 do you divert water from those channels? 07 MR. ROBINSON: We do some irrigation beginning on the 08 year type. This year being real wet, we didn't irrigate in 09 the winter. In the drier years we irrigate in every other 10 year for land preparation or preirrigation of perennial 11 crops. But, normally, in a normal year we could be 12 irrigating from the first of March through October. 13 MR. HERRICK: Do you have a normal irrigation season 14 where most of your diversions take place? 15 MR. ROBINSON: March through October. 16 MR. HERRICK: Would you describe the effects, if any, 17 to the water levels in the channels from which you divert. 18 MR. ROBINSON: When the -- 19 MR. BIRMINGHAM: Objection. Ambiguous. 20 C.O. CAFFREY: I am sorry? 21 MR. BIRMINGHAM: The question is ambiguous. 22 C.O. CAFFREY: I apologize. I did not hear the 23 question. Could you repeat it, and then, if ambiguous, use 24 your best judgment to make it less ambiguous. Or we will 25 have it read back. Let's try it the first way I suggested. 0324 01 MR. HERRICK: Mr. Robinson, do you experience any 02 water level problems in those channels? 03 MR. ROBINSON: We do. When the barriers aren't in 04 place we have severe problems as our pictures show in Middle 05 River especially. 06 MR. HERRICK: I will get to that. 07 In the recent history, and by that I mean in the last 08 three years, have you experienced any of these water level 09 problems? 10 MR. ROBINSON: We have. I can't remember; I think it 11 was 1996. Apparently, we weren't getting the inflow of the 12 incoming tide trapped behind the barrier. We don't know 13 whether it was being topped off by the export pumps or the 14 barrier wasn't put in place the way it was the year before. 15 We seemed like we had low water half the summer, the 16 last half of the summer. After the spring runoff all the 17 rivers were down. We had low water. And without the 18 barriers, Middle River goes completely dry. 19 MR. HERRICK: That is the focus of my next question: 20 Do you recall when, if ever, Old River went dry in that 21 season you are talking about? 22 MR. ROBINSON: Middle River. Old River down -- I will 23 let Bill speak to that because he farms that area of the 24 channels, gets very small and extremely shallow. We have 25 had problems there that our agency's tried to deal with. 0325 01 MR. HERRICK: We submitted along with your testimony 02 South Delta Exhibit 25, which is a couple, three pages of 03 copies of pictures. The originals are here. I just want to 04 show them to you. 05 Would you identify these. 06 MR. ROBINSON: One's looking into the channel. All of 07 those are along Middle River at Undine Road. 08 MR. HERRICK: Did you take these pictures? 09 MR. ROBINSON: I took them myself. 10 MR. HERRICK: Could you note for the record that the 11 pictures have dates on them; is that correct? 12 MR. ROBINSON: They do. 13 MR. HERRICK: Did you write those dates on there? 14 MR. ROBINSON: Yes, I did. 15 MR. HERRICK: Could you give us a time frame, a range 16 of those -- 17 MR. ROBINSON: 11/7/96, 11/4/96, 11/18/96, 11/6/96. 18 Two pictures. 19 I can't remember when I took these. There is a picture 20 of a ditch that normally runs full on a normal tide, and 21 it's partly running, October '96. 22 A pump that I have an interest in, small interest in, 23 October 18th. That pump's been rebuilt about four times in 24 the last 12 years; it's stuck in sand, October 18th. 25 MR. HERRICK: Mr. Robinson -- 0326 01 C.O. CAFFREY: Excuse me, Mr. Herrick. Could we move 02 the mike over closer to the witness who is now testifying. 03 Thank you. 04 MR. HERRICK: Mr. Robinson, in preparation for this you 05 reviewed these pictures, haven't you? 06 MR. ROBINSON: Yes. 07 MR. HERRICK: Could you state, again, for the Board the 08 condition of Middle River during this time frame. 09 MR. ROBINSON: I am trying to take these pictures on 10 the -- get the light right. But in some places Middle River 11 is completely dry. Where there is a small channel going to 12 that pump, the water may be two to four inches deep. I've 13 got a picture somewhere, we don't have, of a boat actually 14 high and dry right in the bottom of the channel, speedboat. 15 It does go completely dry. 16 MR. HERRICK: Would you explain to the Board how these 17 lower levels did affect you that summer. 18 MR. ROBINSON: We had to quit pumping. We lost 19 production on alfalfa. Alfalfa is mainly what I grow. 20 Others -- Bill Salmon has grapes and Bob Ferguson has sugar 21 beets. And Bill had tomatoes, and that's a severe problem 22 to a fruit crop like a grape or a tomato. Miss one 23 irrigation by a day or you get two or three days, the 24 production and quality starts going down. 25 Alfalfa, the yield goes down, but the quality can stay 0327 01 the same if you can get water on it soon enough. If this 02 should happen for over a two-week period and it is a hot 03 spell which is usually when it happens, it seems like, we 04 just lose production as the days go on because we can't 05 irrigate 24 hours a day. We lose four hours maybe twice a 06 day, morning and night. It costs us money to have more 07 people on at night when the water is high enough or when the 08 tides are in. It seems like a day and a night, high and 09 low. 10 MR. HERRICK: Was there, in fact, some appreciable 11 change in crop yield during this time? 12 MR. ROBINSON: Yes. I don't have our records with us 13 now. But certain fields we try to track them in 14 production. We harvest the months, mostly alfalfa, and it 15 declined. 16 MR. HERRICK: When this occurred, did you bring it to 17 anybody's attention? 18 MR. ROBINSON: I think I brought it to yours and your 19 predecessor with pictures and phone calls. 20 MR. HERRICK: Were you ever contacted by any other 21 agency with regard to this problem? 22 MR. ROBINSON: No. 23 MR. HERRICK: Has anybody contacted you from the Bureau 24 or DWR regarding water levels in those channels? 25 MR. ROBINSON: No. 0328 01 MR. HERRICK: I am going to show you South Delta 02 Exhibit 26. See if you can identify that. 03 MR. ROBINSON: This is a correspondence talking about a 04 few minutes ago that you thought this was all the agency 05 had, maybe not all that is available. 06 MR. HERRICK: In your position as President of South 07 Delta Water Agency, are you familiar generally with the 08 issues and concerns that the agency is dealing with? 09 MR. ROBINSON: I think so. 10 MR. HERRICK: Do you recall one of those issues being 11 the issue of makeup pumping under WR 95-6? 12 MR. ROBINSON: Yes. 13 MR. HERRICK: Based on your position as President, is 14 that group of correspondence part of South Delta's records 15 that deal with the makeup pumping issue? 16 MR. ROBINSON: Yes, it is. 17 MR. HERRICK: We have specifically talked about -- I 18 said summer previously; I apologize. The months of October 19 and November for 1996, in the last couple of years have you 20 experienced any other problems with water levels? 21 MR. ROBINSON: In the wintertime the river got awfully 22 low before the winter rains' runoff started. Winter 23 irrigation and our -- one of our members of the South Delta 24 Water Agency, a property owner, could not winter irrigate 25 his asparagus because Grant Line Canal got too low in the 0329 01 wintertime. 02 MR. HERRICK: Thank you, Mr. Robinson. 03 Next I would like to ask Mr. Bill Salmon some 04 questions. 05 Mr. Salmon, could you identify yourself and state your 06 occupation. 07 MR. SALMON: Bill Salmon. I reside at 7615 West Undine 08 in Stockton, which is on Union Island. And I farm on Union 09 Island and divert from Middle River and Grant Line Canal. 10 We grow alpha, asparagus, walnuts, sugar beets, grapes, 11 cucumbers, what, safflower, tomatoes, onions and, 12 occasionally, cantaloupes and whatever looks good at the 13 time. 14 I am with the South Delta Water Agency Delta water 15 users, and I am chairman of Reclamation District Number 1 on 16 Union Island. 17 MR. HERRICK: Mr. Salmon, you may have said that, from 18 what channels do you divert water for your farming 19 operations? 20 MR. SALMON: Grant Line Canal and Middle River. 21 MR. HERRICK: Is your Middle River diversion somewhere 22 along the same stretch as Mr. Robinson? 23 MR. SALMON: Probably maybe a thousand yards apart. 24 MR. HERRICK: Could you tell us in what months do you 25 divert water for farming operation? 0330 01 MR. SALMON: Well, I'm very similar to most people. 02 I'm usually March through October, November. Something like 03 that would be my normal situation. Although I have 04 asparagus, so a lot of times -- most of the times I irrigate 05 that during the winter months, in-between, like, December, 06 January, February. 07 MR. HERRICK: As I asked Mr. Robinson, over the past 08 few years have you experienced any problems with water 09 levels in the channels? 10 MR. SALMON: Yes. Middle River's been a problem for us 11 for the past several years. As Mr. Robinson stated, it's 12 been dry, and there is times where the pump's just 13 completely run out of water on the Middle River. 14 MR. HERRICK: I am not asking you to rack your memory 15 too much, are you familiar with this same instance Mr. 16 Robinson talked about in October, November of 1996? 17 MR. SALMON: Yes, I am. 18 MR. HERRICK: Would you briefly explain what happened 19 to you in your farming operations in that time? 20 MR. SALMON: Well, at the -- mostly at low tides, why, 21 we just completely had no water to pump at all. It 22 literally just went dry. You could have walked across there 23 and you wouldn't have gotten up above your ankles. It was 24 just -- 25 MR. HERRICK: Did this interfere with any of your 0331 01 crops? 02 MR. SALMON: Not -- it depends on whether it, you 03 know, the situation you were in at the time, your crop was 04 in, what stage it was in. But it has affected me. And 05 another thing like Jerry mentioned was a problem is your 06 pumps are literally running out of water and your irrigation 07 people are stopping and starting, and you have -- to 08 irrigate we pump out of the river and go into irrigation 09 ditches which we siphon. We have thousands of siphons 10 going. And when we run out of water they all stop, and you 11 have to go back through the whole process again and start 12 them all over. 13 MR. HERRICK: Have you noticed any wear and tear on 14 your pumps due to low levels of water? 15 MR. SALMON: Yes. I have been there since 1974. In 16 those days we didn't have as many problems. It seemed like 17 about every two or three years we are pulling pumps and 18 changing the bearings and different things. We've got a 19 pump problem continuously. 20 MR. HERRICK: Have you ever been contacted by the 21 state, federal or any state, federal agency with regard to 22 those lower water level problems? 23 MR. SALMON: No, I have not. 24 MR. HERRICK: When this instance occurred in, I'll say 25 the fall of '96, did you bring that to anybody's attention? 0332 01 MR. SALMON: Yes. At the time I think I called you, 02 and prior to that, in years prior, we had a gentleman named 03 Dave Woodridge that was associated with Wilson and Oslitch 04 in Stockton. And I gave them several photos just like 05 Jerry's, only different years. Exactly the same, no water. 06 MR. HERRICK: Would you briefly explain where your 07 diversion on Grant Line Canal is. 08 MR. SALMON: The Grant Line, I am on at the very east 09 end of the Grant Line. 10 MR. HERRICK: Are you aware that there has been a 11 temporary barrier placed in Grant Line Canal the last few 12 years? 13 MR. SALMON: Yes, 14 MR. HERRICK: Do you notice any improvement with that 15 barrier? 16 MR. SALMON: Yes. We saw some improvement last year on 17 that. It was -- I think last year more so than the year 18 before, but I think that was partially because we had more 19 runoff. 20 MR. HERRICK: That is all I have, Mr. Salmon. 21 I will turn to Mr. Robert Ferguson. 22 Would you state your name and occupation. 23 MR. FERGUSON: Robert Ferguson. I reside at 7232 24 Woodside Drive, Stockton, and I own a family farming 25 operation in Union Island west of Stockton. 0333 01 MR. HERRICK: How long have you been farming in the 02 Delta? 03 MR. FERGUSON: I've been personally farming 18 years, 04 and my family has been there about 90. 05 MR. HERRICK: Could you tell us from what channel of 06 the Delta you divert water for irrigation purposes. 07 MR. FERGUSON: Our primary water source is The Grant 08 Line Canal. 09 MR. HERRICK: Where is that in relation to Mr. Salmon's 10 diversion? 11 MR. FERGUSON: Approximately five to six miles west. 12 MR. HERRICK: What crops do you grow in normal 13 operations? 14 MR. FERGUSON: Corn, wheat, safflower, sugar beets, 15 alfalfa and asparagus. 16 MR. HERRICK: What would be your normal months of 17 diversion for those crops? 18 MR. FERGUSON: Normal years, around the 1st of March, 19 March time period through October, normal years. 20 MR. HERRICK: When you say "normal," are there abnormal 21 years? 22 MR. FERGUSON: You will have dry years and you will 23 have obviously the wet years. During the dry years 24 sometimes you are still putting water to crops, depending on 25 if the season goes longer or shorter. If you are able to 0334 01 get them in earlier, you start working ground, you're 02 putting the water on the ground that much earlier. 03 MR. HERRICK: As we asked the prior witnesses, have you 04 experienced any water level problems along Grant Line 05 Canal? 06 MR. FERGUSON: Yes, I have. Where my water source is, 07 it is primarily floodgate, a pipe that drains water from 08 Grant Line Canal. And when the middle of the summer months 09 roll around there have been times when the water literally 10 hasn't been able to flow through the pipe. There hasn't 11 been enough water pressure to have the flow come through the 12 pipe, and on the old home ranch, which amounts to 640 acres, 13 we have a difficult time even getting the water out to the 14 field. 15 MR. HERRICK: As we asked the previous witnesses, do 16 you notice any relationship between your ability to divert 17 water and your crops? 18 MR. FERGUSON: Obviously, yes. Alfalfa. My primary 19 crop is alfalfa and when it comes time to irrigating the 20 crop, the longer you wait and the hot weather situation, it 21 is just that much more detriment to the crop production that 22 I will experience. 23 MR. HERRICK: Mr. Ferguson, where is the diversion in 24 relation to the temporary barrier on Grant Line Canal? 25 MR. FERGUSON: I am downstream of the barrier. 0335 01 MR. HERRICK: So, just for the Board, do you receive 02 any benefit from that barrier? 03 MR. FERGUSON: No. 04 MR. HERRICK: Are you aware of what affects your water 05 level in your channel, in your stretch of the channel? 06 MR. FERGUSON: Not knowing feet of measurement, all I 07 can reference it by is that the Grant Line Canal on our 08 side, on the north side of the Grant Line Canal, for the 09 most part, west of Tracy Boulevard has all been sloped to 10 the riprap. I don't ever recall seeing the water below the 11 riprap line. That riprap line has gone down into the water 12 over the years and never really seen a water line below 13 that. And in the last couple of summers I have. In late in 14 the summer I have seen a water level below that. 15 MR. HERRICK: We have shown SDWA Exhibit that includes 16 copies of photographs. Do you recall that similar time 17 frame? 18 MR. FERGUSON: Yes, I do. 19 MR. HERRICK: During that same time frame -- well, let 20 me ask you this: Those pictures are not of Grant Line Canal, 21 right? 22 MR. FERGUSON: Correct. I was there on that bridge the 23 day that Jerry took those pictures. 24 MR. HERRICK: During that same time frame did you 25 experience any water level problems? 0336 01 MR. FERGUSON: The water levels were low. I cannot 02 recall specifically if we were having difficulty actually 03 getting water into our ditches from my location. 04 MR. HERRICK: Have you been approached by anybody from 05 a state or federal agency with regard to low water levels in 06 your channel? 07 MR. FERGUSON: No. 08 MR. HERRICK: As far as clarification, there are 09 ongoing discussions with DWR for the barrier programs? 10 MR. FERGUSON: In relationship to that, yes. 11 MR. HERRICK: Thank you. 12 Those are all the questions I have for those 13 witnesses. If we want to have a panel now with everybody 14 for cross-examination, I am ready for that. 15 C.O. CAFFREY: If Mr. Hildebrand could join the 16 people. 17 Any parties that wish to cross-examine the witnesses, 18 please show your hand. 19 I will start with Mr. Schulz, and we will move 20 forward. I believe Mr. Gallery. 21 We have Mr. Maddow, Mr.Schulz, Mr. Gallery, and was 22 there someone else that wanted to cross-examine? 23 Oh, Mr. Birmingham, excuse me. 24 MR. O'LAUGHLIN: Mr. O'Laughlin. 25 C.O. CAFFREY: We will ask again. 0337 01 Mr. O'Laughlin, thank you, sir. We will make it a 02 fluid list. 03 Mr. Schulz, good morning, sir. 04 ---oOo--- 05 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 06 BY KERN COUNTY WATER AGENCY 07 BY MR. SCHULZ 08 MR. SCHULZ: Good morning. Cliff Schulz for the Kern 09 County Water Agency. 10 Does the panel have a copy of 95-6 available to them? 11 Is it possible that a copy of 95-6 could be made available 12 to the witnesses? I have one, but I am going to need it. 13 C.O. CAFFREY: Is there a copy of 95-6 in the room to 14 provide to the panel for reference? 15 MS. WHITNEY: We will get one. 16 C.O. CAFFREY: Mr. Brandt to the rescue. Thank you, 17 sir. All right. The panel now has a copy of 95-6. 18 MR. SCHULZ: For the purposes of my request and my 19 cross-examination will be to see if we can identify what 20 portions of this testimony is relevant to this phase and 21 find out what portions of their testimony aren't that tied 22 to the ordering paragraphs of 95-6. To understand what I 23 want to do, that is the direction that I am going to take 24 for questioning. 25 I will start with Alex. He gave a great deal of this 0338 01 testimony. 02 It appeared to me, Alex, that from your testimony you 03 believe that if 95-6 was not extended or had not been 04 adopted, that New Melones Reservoir would have been operated 05 in a different manner than it was operated under 95-6; is 06 that correct? 07 MEMBER FORSTER: Would you repeat that, Mr. Schulz. 08 MR. SCHULZ: I interpreted his testimony as being that 09 if 95-6 had not been adopted or it was not extended now, 10 that New Melones would be operated in a different fashion 11 than it has been operated under 95-6. In other words, 12 somehow the operation of New Melones was modified as a 13 result of the adoption of 95-6. 14 MR. HILDEBRAND: I am not sure that we know how it 15 would have been operated in the absence of 95-6. We are in 16 a bit of no man's land there. But I'd rather assume that it 17 would have been continued to be operated under 1485, and I 18 don't know that for sure. 19 MR. SCHULZ: Would it have also been operated under 20 1422? 21 MR. HILDEBRAND: Supposed to be, yes. 22 MR. SCHULZ: What is it in 95-6 that you believe 23 changes the operation of New Melones? What provisions in 24 95-6 result in a modification of the operation of New 25 Melones? I quite frankly can't find that, the call for 0339 01 modification of the reservoir operation. 02 MR. HILDEBRAND: I think 95-6 in effect delegated to 03 the Bureau the manner in which they would operate the New 04 Melones. 05 MR. SCHULZ: Can you point out the provision in 95-6 06 that states that? 07 MR. HERRICK: I object. I just object. We have put on 08 evidence. Three of the witnesses are not expert witnesses. 09 We put on evidence from which we will make conclusions and 10 argument, and to ask Alex Hildebrand to go through 95-6, 11 which is 85 pages, and point out the provisions he doesn't 12 like, he didn't testify to the provisions he didn't like. 13 He testified as to what reasonable uses of water are, 14 why he doesn't like operations that are existing right now. 15 MR. SCHULZ: Mr. Chairman, they have asked that 95-6 16 not be extended because they believe it damages them. 17 There are ordering paragraphs in 95-6 that start on Page 51 18 and are relatively short and relatively straightforward. I 19 am asking the witness to tell me what is it in 95-6 that he 20 contends damages him. 21 C.O. CAFFREY: I think it's fair to ask those 22 questions, and the cross-examination is not limited to the 23 strict scope of the exhibits. I think it is fair for you to 24 ask these witnesses if they are aware if any portion of 95-6 25 relates to their testimony. So, please proceed. 0340 01 MR. HILDEBRAND: 95-6 changed the permit conditions, 02 and the consequence of 95-6 has been damaging to the South 03 Delta. So the question, I think, is not just how it relates 04 to what happened before, but whether a continuation of 95-6 05 will continue to damage. 06 MR. SCHULZ: Let me take you through the order. Turn 07 to Page 51 of 95-6. 08 MR. HILDEBRAND: Okay. 09 MR. SCHULZ: Paragraph one of the order is simply the 10 one that says interim, would you agree that did not affect 11 the manner in which water provided was provided to the South 12 Delta, the fact that it is a statement of the interim 13 order? 14 MR. HILDEBRAND: Well, I am not prepared to say that, 15 no. It goes on to say: 16 In the absence of the further order of the 17 Board limits herein to the terms and 18 condition in the affected permits shall 19 expire upon adoption of the comprehensive 20 water rights decision. (Reading.) 21 So it eases to terms and conditions that prove to be 22 inadequate to protect us. 23 MR. SCHULZ: Which are the provisions that are in the 24 subsequent ordering paragraphs. Let's go to Paragraph 2 of 25 the order, which does modify certain water quality 0341 01 standards for fish and wildlife set forth in the water 02 rights decision D-1435. 03 Do you contend that the modification of the San Joaquin 04 River salinity standard between Jersey Point and Prisoners 05 Point for purposes of striped bass spawning during the 06 months of April and May adversely affected the South Delta? 07 MR. HILDEBRAND: No. 08 MR. SCHULZ: Do you contend that the modification of 09 the cross channel gate operations that are set forth in the 10 Attachment B have adversely affected the South Delta? 11 MR. HILDEBRAND: Say that again, please. 12 MR. SCHULZ: The cross channel gate closures, which is 13 Attachment B, it basically requires closures from November 14 to January and February to May 20th and May 21st through 15 June 15th for fishery protection, do you contend that that 16 modification of Decision 1485 adversely affects South Delta? 17 MR. HILDEBRAND: We'd have to look at how that might 18 affect the makeup pumping, which, then, does affect us. 19 MR. SCHULZ: I will get to makeup pumping which I 20 understand is a concern of yours. 21 MR. HILDEBRAND: Need for makeup pumping may be 22 influenced by these other fishery provisions. 23 MR. SCHULZ: Do you contend that the Suisun Marsh 24 provisions in Paragraph 3 affect the South Delta? 25 MR. HILDEBRAND: No. 0342 01 MR. SCHULZ: This is a similar question to one that I 02 asked San Joaquin folks yesterday. 03 Is it your contention that the Paragraph 4 on Page 52 04 of the order which changes the Vernalis standards from a 500 05 TDS to 1.0 and .7 millimhos, is it your opinion that that 06 results in more water being released out of New Melones than 07 was released under the old Vernalis standard? 08 MR. HILDEBRAND: I don't think generally that it does. 09 It might on some circumstances, but our particular concern 10 with that, as you've heard from the other gentlemen, is that 11 we don't have the protection in March and September that we 12 had under 1422. 13 MR. SCHULZ: Understand. Paragraph 5 is the joint 14 makeup pumping for fishery purposes provision of it. It is 15 quite lengthy, as you know. 16 I direct your attention to Paragraph 4, at the bottom 17 of Page 53 of ordering Paragraph 5A, which says -- I will 18 quote it for the people that don't have a copy of it: 19 The shift in exports -- (Reading.) 20 These are conditions that must be met for the joint 21 point to be utilized: 22 The shift in exports does not adversely 23 affect any legal user of water or cause 24 significant environmental effects on fish and 25 wildlife or water quality. (Reading.) 0343 01 Was it your understanding that that was put in to 02 require the project operators to try to mitigate the types 03 of impacts you have been describing in your testimony? 04 MR. HILDEBRAND: I suppose that was the intent, it 05 hasn't been entirely successful. 06 MR. SCHULZ: The other three witnesses here today were 07 asked specifically by Mr. Herrick as to whether or not they 08 had been contacted by anybody with respect to the 1996 water 09 level issues. 10 Alex, is it not a fact that you were contacted about 11 these issues and that you were sort of a point person that 12 the Department of Water Resources used to carry on 13 discussions about those concerns? 14 MR. HILDEBRAND: That is correct. 15 MR. SCHULZ: So you were contacted? 16 MR. HILDEBRAND: I don't know whether they contacted me 17 or I contacted them, but we certainly had a lot of 18 deliberation on the subject. 19 MR. SCHULZ: You talked a lot in your testimony about 20 your recirculation plan. Do you find anything in 95-6 that 21 somehow would prohibit or adversely affect the ability of 22 anybody to carry out that recirculation plan if they wanted 23 to? 24 MR. HILDEBRAND: I would have to go back through this 25 to be sure of the answer to that question. 0344 01 MR. SCHULZ: As you sit here, you are not aware of any, 02 I take it? 03 MR. HILDEBRAND: That would not directly affect it, 04 no. But the circulation plan is an alternative to doing 05 something that does affect us. 06 MR. SCHULZ: Correct. But what I am trying to find 07 out, we are in a phase of this hearing that says, should 08 95-6 be extended and continued in operation. I'm trying to 09 find out: In your opinion, whether if it was extended to 10 that, in your opinion, that in any way impact your ability 11 to continue to process and hopefully get agency approval of 12 your recirculation plan? 13 MR. HILDEBRAND: Well, yes. As long as we go along as 14 we are, there is no pressure on the Bureau to adopt measures 15 to facilitate the maintenance of the Vernalis standard, and 16 they are operating on an interim plan which does not even 17 pretend to abide by the salinity standard. They are making 18 purchases which exacerbate that lack of availability of 19 water to meet the standard. 20 So a continuation of the status quo is just not 21 satisfactory when the status quo is causing us damage. 22 MR. SCHULZ: Isn't it a fact that the purchases and the 23 current operations of New Melones in the spring which you 24 object to were brought about by the AFRP actions rather than 25 by 95-6? 0345 01 MR. HILDEBRAND: No. I don't think that is entirely 02 true. If you look at the -- 03 MEMBER DEL PIERO: Excuse me, not one member of the 04 Board knows what AFRP is. 05 MR. SCHULZ: I am sorry. Anadromous Fisheries Recovery 06 Plan of the CVPIA. 07 MEMBER DEL PIERO: Thank you. We know what that is. 08 C.O. CAFFREY: Mr. Brown knew it. 09 MR. SCHULZ: Jargon becomes so easy. Sorry about 10 that. 11 C.O. CAFFREY: Go ahead. 12 MR. HILDEBRAND: The affect of continuing 95-6 is to 13 continue a situation in which the Board is not taking 14 control of the decision as to one of the priorities among 15 meeting salinity standard versus meeting fish flows and 16 doing other things. 17 And as I recall it, the control plan doesn't directly 18 address or provide for water for the fish doubling program, 19 and yet the release schedules that are being proposed here 20 in the interim plan of the Bureau does indeed release water 21 for the Bay-Delta fishery. I could look up the amounts of 22 it here. So that the availability of water to meet the 23 quality standard -- they say we don't need it because water 24 isn't available. The reason it isn't available is because 25 they release it for something else. 0346 01 MR. SCHULZ: Under the AFRP, correct? 02 MR. HILDEBRAND: Not necessarily only that. They also 03 have overcommitted the basin before that came along and 04 consequently can't meet all the obligations they have on the 05 Stanislaus River. And then by extending 95-6, you extend 06 the Bureau's discretion to decide what they will meet and 07 what they won't meet and whether they will comply with one 08 feature of the control plan versus another feature. The 09 control plan does not include the AFRP anyway. 10 So, they are permitting the Bureau to go on using water 11 for purposes that are not approved by the Board and 12 consequently violating control Board standards that they 13 should be abiding by. And all they do is provide notice, 14 "Oh, yeah, we didn't comply with it last month," or 15 something. They don't do anything about -- there is no 16 enforcement of seeing that they comply with the standard. 17 So you're asking us to permit or go along with an 18 extension of an unbearable situation. Whether it could have 19 been different under some other regime is, I think, an 20 irrelevant question. The question is: Should the Board 21 continue to permit the Bureau to make these decisions? And 22 under 95-6 they do make them, and I contend that the Board 23 should not permit them to do that. The Board should be in 24 control of that. 25 MR. SCHULZ: I think I will stop there. 0347 01 C.O. CAFFREY: Thank you, Mr. Schulz. 02 Mr. Sandino. 03 Mr. Gallery, I believe. 04 Good morning, Mr. Gallery. 05 MR. GALLERY: Good morning, Mr. Caffrey. Thank you. 06 ---oOo--- 07 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 08 BY CAMP FAR WEST IRRIGATION DISTRICT, ET AL. 09 BY MR. GALLERY 10 MR. GALLERY: I just have a few questions of Mr. 11 Hildebrand about what New Melones was originally about. As 12 I understood, you testified that you -- did you participate 13 in the hearings before the Board on the Bureau's application 14 for New Melones that resulted in D-1422? 15 MR. HILDEBRAND: I believe I did, but that is quite a 16 while ago. My recollections are not perfect. 17 MR. GALLERY: You testified, I think, in that 18 proceeding the Bureau had entered into an agreement with OID 19 and South San Joaquin recognizing 654,000 acre-feet of prior 20 water rights? 21 MR. HILDEBRAND: That is correct. That was later 22 changed to reduce it to 600,000, but granting them a 23 carryover provision of up to 200,000 acre-feet from one year 24 to another. 25 MR. GALLERY: You also mentioned at that time that 0348 01 Bureau had estimated that it could meet a salinity standard 02 at Vernalis of 500 parts per million or a max of 70,000 03 acre-feet per year? 04 MR. HILDEBRAND: That was their assertion. Whether it 05 was valid or not, I don't know. 06 MR. GALLERY: And the New Melones Project had also been 07 authorized to provide some fishery flows in the Stanislaus 08 River, and the Bureau at that time estimated that that would 09 cost 98,000 acre-feet? 10 MR. HILDEBRAND: Yes. But only 65,000 in a critical 11 year. 12 MR. GALLERY: And then finally, you indicated that the 13 project also at that time was going -- was thought to 14 provide a yield of 250,000 acre-feet a year? 15 MR. HILDEBRAND: I don't recall exactly what point in 16 time the 250,000 related to. It's my recollection that when 17 there was a complete build-out of the upstream demands, 18 upstream of the reservoir, that that was going to decrease 19 to 180,000. But initially I think it was of the order of 20 250,000, but I could be a little off on that. 21 An interim contract for the eastern part of the county 22 were predicated on using that difference while it prevailed. 23 MR. GALLERY: That number of 250,000 eventually 24 lowering to 180,000, that was water that would be on top of 25 these other allocations from the project? In other words, 0349 01 that was water that would be available for consumptive use 02 by customers of the Melones' water? 03 MR. HILDEBRAND: Yes. That was water soon to be 04 available over and above the commitments to the downstream 05 users and the fish flows and the water quality releases that 06 were estimated to be needed at that time. 07 MR. GALLERY: That over and above water, the plan at 08 that time was that that water would be used -- would be 09 needed by and used within the four counties that were within 10 the designated basins; is that correct? 11 MR. HILDEBRAND: That's correct. 12 MR. GALLERY: That is Tuolumne County and Calaveras 13 County and a part of Stanislaus County and a portion of San 14 Joaquin County; is that correct? 15 MR. HILDEBRAND: That's correct. 16 MR. GALLERY: That is all I have. 17 Thank you. 18 C.O. CAFFREY: Thank you, Mr. Gallery. 19 Mr. Maddow. 20 And I also have Mr. Birmingham and Mr. O'Laughlin, but 21 I will check again in case I left anybody out. 22 Morning, sir. 23 MR. MADDOW: Good morning, thank you, Mr. Chairman, 24 Members of the Board. 25 ---oOo--- 0350 01 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 02 BY CONTRA COSTA WATER DISTRICT 03 BY MR. MADDOW 04 MR. MADDOW: I am Robert Maddow, appearing for the 05 Contra Costa Water District, and I have just a couple 06 questions for Mr. Hildebrand. 07 Mr. Hildebrand, on Page 3 of South Delta Water Agency 08 Exhibit 27, you testified -- let me ask you whether it is 09 your testimony that the Contra Costa Water District approved 10 of or agreed with your recirculation proposal? 11 MR. HILDEBRAND: My testimony was that the 12 representatives of Contra Costa Water District were among 13 those who provided oversight and guidance to the DWR's 14 analysis of what would happen in the event of that 15 recirculation. 16 MR. MADDOW: Isn't it true that Contra Costa Water 17 District representatives informed you that consideration of 18 that proposal would require analysis of the water quality 19 impacts on other diverters such as a water district? 20 MR. HILDEBRAND: We certainly concur on that. 21 MR. MADDOW: Did you perform any of that analysis? 22 MR. HILDEBRAND: I did not personally perform any 23 analysis. The analysis that was made addressed water 24 quality in other places, but not specifically Contra Costa 25 intake. It has been our position that the use of the 0351 01 barriers distinguished from the rest of this, would 02 slightly, but directionally increase salinity of the Contra 03 Costa intake, providing there were no iterative 04 consequences. 05 As I indicated, the analysis didn't go into those. If 06 you put the barriers in, you then reduce the salt load in 07 the river. So you might get a slightly larger proportion of 08 the downstream salt load, but the downstream salt load would 09 then be decreased, so that the absolute magnitude of the 10 salt diversion for Contra Costa, in my judgment, would 11 probably be decreased. But that is an analysis which really 12 needs to be made, and we have not made it. 13 MR. MADDOW: Similarly, Mr. Hildebrand, has any 14 analysis been done with regard to selenium as it might be 15 redistributed as a result of the recirculation proposal? 16 MR. HILDEBRAND: No. But I am not aware that there is 17 any threat in that regard. There is confusion in the case 18 of selenium in that some of the standards and controls have 19 been done in terms of load rather than concentration. In my 20 judgment, this is a mistake. Because one of the things that 21 happens, is you get a big storm and it sweeps a lot of 22 selenium down at a time when there is so much dilution that 23 it doesn't make any difference. 24 We have selenium in the Sacramento River. We have it 25 in the Bay. We have it in the ocean. So it is really a 0352 01 matter of concentration, and I am not aware of the 02 concentration of selenium at the intake of Contra Costa is 03 likely to be a problem. 04 MR. MADDOW: What about issues related to 05 bioaccumulation of selenium in areas where it might have an 06 impact on species of concern? 07 MR. HILDEBRAND: That presumably is a concern in those 08 places where the concentration is sufficient to cause this 09 to be a problem. I am not aware that that is the case 10 anywhere in the South Delta. 11 MR. MADDOW: Thank you, Mr. Hildebrand. 12 I have no further questions. Thank you, Mr. Caffrey. 13 C.O. CAFFREY: Thank you, Mr. Maddow. 14 Mr. Birmingham. 15 ---oOo--- 16 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 17 BY WESTLANDS WATER DISTRICT 18 BY MR. BIRMINGHAM 19 MR. BIRMINGHAM: Mr. Hildebrand, I believe we met 20 before. I am Tom Birmingham. I am the attorney 21 representing Westlands Water District. Most of my questions 22 will be directed to you. 23 In connection with the first phase of the proceeding I 24 should note that I represent San Joaquin -- 25 MEMBER FORSTER: Can't hear you. 0353 01 MR. BIRMINGHAM: First time it's ever happened, 02 somebody couldn't hear me. 03 C.O. CAFFREY: Touche'. 04 MR. BIRMINGHAM: I was introducing myself to the 05 panel. I am Tom Birmingham. I represent Westlands Water 06 District and the San Luis Delta Mendota Water Authority. 07 Most of my questions this morning will be directed to 08 you, Mr. Hildebrand. 09 During the early portion of your testimony here this 10 morning, and I believe you stated in your written testimony, 11 which is South Delta Exhibit 27, you stated that increased 12 stream flows one time of the year will result in reduced 13 flows at another time of the year. Is that correct? 14 MR. HILDEBRAND: That's correct. 15 MR. BIRMINGHAM: Now, the increased stream flows that 16 occur at one time of the year are occurring as a result of 17 stored water; is that right? 18 MR. HILDEBRAND: That is correct. Conceivably it could 19 be from some other cause, but it is not so far as we are 20 aware. 21 MR. BIRMINGHAM: So what you are concerned with is that 22 the Bureau of Reclamation is releasing stored water as a 23 result of implementation of Order 95-6 at one time of the 24 year as opposed to releasing that stored water at another 25 time of the year? 0354 01 MR. HILDEBRAND: Yes. My comment, however, wouldn't 02 apply only to the Stanislaus. 03 MR. BIRMINGHAM: Do you contend that water users in the 04 South Delta Water Agency have a right to the release of 05 stored water? 06 MR. HILDEBRAND: We have a -- let's back up and look at 07 the overall watershed picture. 08 The Bureau and other storage facilities are entitled to 09 store water for their own use, and we don't have a right to 10 use the water because it was stored. However, we have 11 riparian rights and the consumptive public trust rights 12 downstream are superior to the upstream rights. And if the 13 water that is available to meet those rights has been 14 diminished by the operations of the upstream parties, 15 whether it was through shifting their periods of diversion 16 or whether it was by storing it and releasing it at some 17 other time, it never lasts, and the watershed basis does 18 damage us. 19 Now, when you say release it from storage, if you 20 didn't release it from storage, it stays in storage, if you 21 are saying that the water you are releasing from storage is 22 surplus to your needs, this year, and so if you didn't 23 release it for the fish flow, you would leave it in storage. 24 You keep doing that for the 71 years of record, sooner or 25 later you are going to spill it because it filled the 0355 01 reservoir up and it became a flood control release. 02 So then you lost the beneficial use of that water by 03 that means, and you have actually decreased the total yield 04 of the watershed. 05 Now, if, on the other hand, you have that water and you 06 use it, which is the prudent thing to do, then you are going 07 to use it, not for the fish release but for some other 08 purpose, and if you release it for power purpose, for 09 example, and you aren't bribed to do it in an economic time, 10 you are going to release it in the summertime and it is 11 going to come at a time when it is useful for us. 12 If you release it by overapplication of water to the 13 farmlands, then you increase return flow and it comes down 14 that manner. So sooner or later it comes down at a time 15 that is beneficial to us and protects our water rights, 16 providing you're acting prudently and not being paid to do 17 something that would otherwise be unprudent. 18 MR. BIRMINGHAM: If I understand what you are saying, 19 you are not contending that you have a right or that water 20 users in South Delta Water Agency have a right to tell the 21 Bureau of Reclamation or other reservoir operators when they 22 should release water from those reservoirs? 23 MR. HERRICK: I would just object to that. Mr. 24 Hildebrand is certainly able to give his opinion on what he 25 thinks should and shouldn't be done, but the legal positions 0356 01 of the agency are subject to other proceedings. 02 C.O. CAFFREY: I am not sure I understood the 03 question. I thought Mr. Birmingham was just asking for 04 clarification. Maybe I misunderstood the question. 05 MR. BIRMINGHAM: No. I was simply asking for 06 clarification. 07 C.O. CAFFREY: I think it is an appropriate question. 08 MR. HILDEBRAND: Repeat the question. 09 MR. BIRMINGHAM: If I understood your testimony, you 10 are not contending that the South Delta Water Agency water 11 users have a right to dictate to the Bureau of Reclamation 12 or other reservoir operators when those reservoir operators 13 should release water? 14 MR. HILDEBRAND: Only to the extent that they must not 15 operate in a manner that is detrimental to superior 16 downstream rights. 17 MR. BIRMINGHAM: Now, in response to a question asked 18 of you by Mr. Schulz, you referred to water released for 19 fishery purposes in the Delta; is that correct? 20 MR. HILDEBRAND: I believe that was the question. 21 MR. BIRMINGHAM: I believe that you said that that was 22 a use of water that was not authorized by the Board. 23 MR. HILDEBRAND: The Board, to the best of my 24 knowledge, has not said what the source of the water should 25 be to meet the proposed Vernalis pulse fish flow in the 0357 01 spring. 02 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 03 the permits that have been issued by the State Water 04 Resources Control Board for operation of New Melones 05 Reservoir do include as one of the uses of the water 06 appropriated water for the enhancement of fish and wildlife? 07 MR. HILDEBRAND: In general terms, yes. But the Board 08 has not said where the water should come from to provide 09 that pulse flow. It has not said that it should be done at 10 the expense of the availability of water to meet the 11 salinity standard or the expense of the summer flow needed 12 to meet our riparian rights. 13 MR. BIRMINGHAM: A few moments ago and in your written 14 testimony you referred to consumptive public trust needs. 15 What are those consumptive public trust needs? 16 MR. HILDEBRAND: The riparian vegetation consumes 17 water. The evaporation from the surface of the streams 18 consumes water. In order to comply with our riparian 19 rights, you have to supply those waters in addition to our 20 riparian rights. 21 MR. BIRMINGHAM: Your riparian right entitles you to 22 the flow that would be in the stream in the state of nature; 23 is that correct? 24 MR. HILDEBRAND: That's correct. 25 MR. BIRMINGHAM: Do I understand that one of the 0358 01 provisions of 95-6 that you object to is the change in the 02 salinity standard for Vernalis in the Bureau's New Melones 03 permit? 04 MR. HILDEBRAND: That change is detrimental to us in 05 March and September, clearly. 06 MR. BIRMINGHAM: You have testified, I believe in 07 response to a question asked of you by Mr. Maddow, that you 08 participated in the proceedings that resulted in Water Right 09 Decision 1422; is that correct? 10 MR. HILDEBRAND: I said I thought we had, but my 11 recollection that far back isn't that great. 12 MR. BIRMINGHAM: Have you ever read Decision 1422? 13 MR. HILDEBRAND: Yes. 14 MR. BIRMINGHAM: Am I correct that the South Delta 15 Water Agency and the County of San Joaquin were two of the 16 parties that proposed, as a condition of the Bureau's 17 permit, that the Bureau meet water quality standards at 18 Vernalis? 19 MR. HILDEBRAND: I don't know that we proposed it. I 20 have no recollection that South Delta Water Agency was 21 making such a proposal. We certainly were adamant that the 22 CVP should address the damage they have done to the salinity 23 in the river. 24 MR. BIRMINGHAM: Let me understand. It is your 25 position that the CVP should be responsible for addressing 0359 01 the damage that they have done to the river? 02 MR. HILDEBRAND: Yes. We would not have a salinity in 03 the absence of the CVP. 04 MR. BIRMINGHAM: Isn't it correct that New Melones is a 05 facility of the CVP? 06 MR. HILDEBRAND: Yes. 07 MR. BIRMINGHAM: Isn't it correct that Congress 08 authorized construction of New Melones for mitigation of 09 water quality problems in the San Joaquin River? 10 MR. HILDEBRAND: Partial mitigation. 11 MR. BIRMINGHAM: In your testimony you referred to a 12 reduction in flows resulting from the construction of Friant 13 Dam; is that correct? 14 MR. HILDEBRAND: That's correct. 15 MR. BIRMINGHAM: Isn't it correct that Congress 16 authorized the construction of New Melones Reservoir as a 17 means of mitigating the impacts resulting from the loss of 18 flows resulting from the construction and operation of 19 Friant? 20 MR. HILDEBRAND: Yield of New Melones is very much less 21 than the loss of flow that occurred when they built Friant. 22 MR. BIRMINGHAM: Mr. Hildebrand, I don't think that is 23 answering my question. 24 Isn't it correct that Congress authorized the 25 construction of New Melones Reservoir in part as a means of 0360 01 mitigating the loss of flows in the San Joaquin River that 02 resulted from the construction and operation of Friant Dam? 03 MR. GALLERY: Objection. I think that Mr. Birmingham 04 may be mischaracterizing what Congress did. I think that 05 the act only authorized the Corps of Engineers to look at -- 06 C.O. CAFFREY: Mr. Gallery, excuse me for interrupting 07 you. I believe Mr. Birmingham's question is, isn't it 08 correct that, and if Mr. Hildebrand disagrees, he can say 09 so. 10 MR. HILDEBRAND: I am not aware of -- 11 C.O. CAFFREY: Or if he doesn't know. If Mr. 12 Birmingham is mischaracterizing reality, I am not sure -- 13 MR. HILDEBRAND: I am not aware that there was any 14 anticipation that New Melones would significantly restore 15 the flow that was deprived when Friant was built. It was 16 intended in part, and only very much in part, to address the 17 concentration of the salt load that comes out of the west 18 side. 19 MR. BIRMINGHAM: When the Bureau of Reclamation 20 operates New Melones Reservoir as a means of improving water 21 quality standards in the Lower San Joaquin River, the CVP is 22 mitigating, at least in part, the impacts caused by the 23 discharge of salinity from the west side of San Joaquin 24 Valley to the San Joaquin River? 25 MR. HILDEBRAND: That's correct, except they do not do 0361 01 it consistently. When they do do it, it is only a partial 02 redress. 03 MR. BIRMINGHAM: I have a few questions about your 04 proposed recirculation plan. 05 I, like Mr. Maddow, thought I understood your testimony 06 to be to the effect that the water users with whom you 07 consulted, in Mr. Maddow's case the Contra Costa Water 08 District, and in my case the San Luis Delta Mendota Water 09 Authority had no problem with your proposal and would 10 support it. 11 Is that what you testified to? 12 MR. HILDEBRAND: That was my understanding from 13 discussions in meetings with Dan Nelson. 14 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 15 the statement from Mr. Nelson that he didn't think you would 16 have any problem with the recirculation program was based 17 upon a very explicit understanding that the recirculation 18 program would not reduce the water supply for the member 19 agencies of the San Luis Delta Mendota Water Authority? 20 MR. HILDEBRAND: That is correct. All of our planning 21 and modeling was done with that in mind. He was more than 22 just saying it wouldn't hurt him; he was supportive of it. 23 MR. BIRMINGHAM: In fact, he indicated that if the 24 recirculation plan would reduce the water supply to member 25 agencies of the authority, that his response to the proposal 0362 01 would be different? 02 MR. HILDEBRAND: Yes. We did not ask him to take a 03 different position than that. 04 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 05 the modeling that has been conducted to establish the 06 recirculation plan will not affect water supplies assumed 07 exports in the excess of the export inflow ratio currently 08 contained in the 1995 water quality control plan? 09 MR. HILDEBRAND: It was clearly stated that it was 10 assumed that the recirculated water could be recovered on a 11 one-to-one basis, and that that would be superimposed on 12 whatever would have happened in the base case. If in the 13 base case you were going to have a five-to-one ratio, then, 14 maybe the overall ratio would drop to three and a half or 15 something like that. 16 But, yes, in order not to have any net loss, assured 17 not to have any losses, it had to be that the recirculated 18 water could be recaptured on a one-to-one basis. 19 C.O. CAFFREY: Mr. Jackson, you rise. 20 MR. JACKSON: Yes, sir. This is very important and 21 very interesting testimony, and I am enjoying it very 22 much. I don't want to appear in Phase I unless I have to. 23 This is actually a comparison of Alternative 2 to 24 Alternative 6 of your hearing Phase VIII. The EIR is not 25 done. 0363 01 Is this testimony going to be carried on in Phase 02 VIII? May I cross-examine in Phase VIII in regard to these 03 comparisons? Will these witnesses be available in Phase 04 VIII? Or are we going to do the comparison of alternatives 05 and the water effects here in Phase I? 06 C.O. CAFFREY: Thank you for your question. Let's 07 hear from -- who is going to go first here? I assume you 08 both want to comment. Maybe I am wrong. 09 MR. HERRICK: I would just say, certainly, Mr. 10 Hildebrand will be here for those phases. He will be a 11 witness; you can cross-examine. There is a lot of overlap 12 on these issues. He will be here and you may cross-examine. 13 C.O. CAFFREY: And you may cross-examine today if you 14 wish. 15 MR. JACKSON: I understand. I would prefer to wait. 16 You guys are doing fine without me. 17 C.O. CAFFREY: I want you to know that the way you 18 stated that you might have to appear in Phase I, we have no 19 aversion to that, Mr. Jackson. 20 MR. JACKSON: I understand. 21 C.O. CAFFREY: Okay. Thank you, Mr. Herrick. 22 Please go ahead, Mr. Birmingham. 23 MR. BIRMINGHAM: I have just a couple questions for Mr. 24 Salmon. 25 Mr. Salmon, in your testimony, South Delta Water Agency 0364 01 Exhibit 32, you state: 02 I am not familiar with the specific 03 conditions set forth in water rights WR 95-6, 04 but I can tell for a fact that export 05 operations have continued to harm our farming 06 operations over the past few years. 07 (Reading.) 08 The problems that you have described, that the three of 09 you gentlemen have described with your testimony, are those 10 problems that occurred prior to 1995? 11 MR. SALMON: Not to the degree that it has. 12 MR. BIRMINGHAM: Are your diversions screened to 13 prevent entrainment of fish? 14 MR. SALMON: No. 15 MR. BIRMINGHAM: Does anybody on this panel who diverts 16 water from the Delta screen their diversions to prevent the 17 entrainment of fish? 18 MR. FERGUSON: No. 19 MR. ROBINSON: No. Fish and Game has done studies on 20 selective pumps and found no fish to be entrained in our 21 Middle River area. 22 MR. BIRMINGHAM: May I have a moment, Mr. Chairman? 23 C.O. CAFFREY: To consult? 24 MR. BIRMINGHAM: To confer with Mr. Ottemoeller. 25 C.O. CAFFREY: Go ahead. We are off the record. 0365 01 (Break taken.) 02 C.O. CAFFREY: We are back on the record. 03 Mr. Nomellini. 04 MR. NOMELLINI: I have a procedural question. If it 05 doesn't -- are you ready to go on? I can wait until later. 06 In terms of these phased hearings, if we put in 07 testimony in Phase I that is relevant to Phase V, or 08 whatever, are we expected to again put that same testimony 09 in the later phase? 10 C.O. CAFFREY: No. 11 MR. NOMELLINI: We can do further cross-examination on 12 anybody's testimony that has previously been submitted? Is 13 that what I am hearing here? 14 MS. LEIDIGH: No. 15 C.O. CAFFREY: I am not sure I understand the 16 question. You can appear in any phase. 17 MR. NOMELLINI: I understand that. We can go in with 18 our direct case and present it. If we don't and we have 19 evidence in Phase I, for example, that is relevant to Phase 20 V, do we just leave that in the record and refer to it or do 21 we bring those witnesses back for cross-examination again? 22 I'm lost in your responses here and maybe I wasn't paying 23 close enough attention. 24 C.O. CAFFREY: Thank you, Mr. Nomellini. 25 I am having some difficulty understanding what Ms. 0366 01 Leidigh has just said. 02 You want to comment on it, Ms. Leidigh, or do you want 03 to consult with me first? 04 MS. LEIDIGH: I think I can just comment. I think we 05 made it clear previously in our correspondence, if you put 06 in your evidence in an early phase and your evidence is 07 cross-examined, but it is also relevant to a later phase, in 08 the later phase you did not bring your witnesses back, you 09 can just refer to the other evidence that you put on in the 10 earlier phase and make your arguments about it. 11 MR. NOMELLINI: Thank you. 12 C.O. STUBCHAER: I am not sure that answered the 13 question regarding cross-examination in the later phases. 14 MS. LEIDIGH: They wouldn't bring it back, they 15 wouldn't cross-examine. 16 C.O. STUBCHAER: I understood your question to be if 17 the evidence went on in, say, Phase II and it covered Phase 18 V, just for instance, and you wanted to cross-examine in 19 Phase V on that -- 20 MR. NOMELLINI: I thought the answer to Mr. Jackson 21 indicated that he could cross-examine with regard to the 22 testimony today in a later phase. 23 C.O. CAFFREY: No. I apologize. I assumed that Mr. 24 Jackson was saying that we are now getting into areas of 25 phase, whatever phases you mentioned, and then I thought 0367 01 that Mr. Herrick said Mr. Hildebrand would be back to offer 02 direct testimony in those phases, and then Mr. Jackson could 03 then cross-examine on that based on that testimony at that 04 time. This was fairly general. So I -- maybe that is not 05 what you meant. 06 MR. JACKSON: I thought that is -- I thought you and I 07 communicated. Now I am not sure. Let's take it differently 08 so that I understand. 09 As of right now in this document, for instance, Mr. 10 Ploss and the United States Fish and Wildlife Service, the 11 Bureau and the United States Fish and Wildlife Service, Mr. 12 Herbal from EPA have filed notices to appear in Phase II. 13 Their testimony is useful in every phase. It's the core of 14 the whole thing in every phase. 15 Do I question them in Phase II about everything that I 16 may need in Phases I, II, III, IV, V, VI, VII and VIII, and 17 whatever phases we invent later? 18 C.O. CAFFREY: Ms. Leidigh. I know the answer. I 19 don't know if I want to give it. 20 MS. LEIDIGH: My recommendation is that you question 21 them in Phase II about matters that are relevant to Phase 22 II. If they do not appear in later phases, you will not be 23 able to question them at that time, but you will be able to 24 put on your own evidence on those subjects. 25 MR. JACKSON: I understand. But if I am not allowed to 0368 01 question them on Phase II at Phase II because it's beyond 02 the scope, or some other limitation, by not cross-examining 03 them I may waive my ability to cross-examine them at later 04 stages? 05 MS. LEIDIGH: At the later stages you're going to have 06 the opportunity to put on your own evidence with respect to 07 those stages. I think your remedy in Phase II, if there is 08 evidence that is relevant to other phases and not relevant 09 to Phase II, your remedy at that point is to object to the 10 presentation of the evidence during Phase II. 11 MR. JACKSON: Then I object to every question asked by 12 Mr. Birmingham that compares the recirculation element and 13 ask for it to be stricken as inappropriate in this phase. 14 MR. O'LAUGHLIN: The problem with that is, I have asked 15 earlier, that Alternative 8 not be included within this 16 discussion, and The Chair already overruled that. 17 MR. ROBBINS: Mr. Chairman, I think a more appropriate 18 question might be, will it be allowed for parties to recall 19 a witness that has previously testified as an adverse 20 witness in a rebuttal case in future proceedings? I believe 21 that the answer to that question is, yes, and we can resolve 22 this issue. 23 C.O. CAFFREY: Mr. Robbins, I think you have saved the 24 day. The answer to that question is yes, and we will today 25 bestow upon the title of Professor with Mr. Birmingham. 0369 01 MR. JACKSON: That works for everyone except the 02 federal agencies that may -- could we have any time a 03 federal employee appears, since it maybe they do it by 04 voluntarily, I guess, the Board can't bring them in, can we 05 question them about all phases at the moment they raise 06 their hand and take the stand, because we'll never get them 07 again? 08 C.O. CAFFREY: Ms. Leidigh. 09 MS. LEIDIGH: I just wanted to comment that so far as 10 the federal government is concerned in appearing in the 11 Board's proceedings, it's really not voluntary. If they 12 want to have something to say about their water rights, they 13 need to be here because the Board has the power to change 14 their water rights. 15 MR. BIRMINGHAM: Mr. Caffrey, there is an easy solution 16 to this problem that Mr. Jackson is raising. If a federal 17 employee appears to testify, the Board can simply refuse to 18 excuse that person as a witness until the conclusion of the 19 final phase of this water rights hearing, in which case they 20 are subject to recall at anytime. 21 MR. JACKSON: I would make that motion so that we don't 22 have to turn this into the full scale -- 23 C.O. CAFFREY: Mr. Brandt. 24 MR. HERRICK: Except for the fact that we heard earlier 25 today the federal government is not allowing Lowell Ploss to 0370 01 be examined on Phase I, and he is gone. That was part of my 02 case. And is my understanding that in Phase II they were 03 going to let me talk about some of the similar subjects, but 04 not others; that is, part of the continuation of 95-6. 05 I just want a clarification of when I get to ask Lowell 06 Ploss questions dealing with 95-6. 07 C.O. CAFFREY: Mr. Brandt. 08 MR. BRANDT: The answer is Phase II. I think Mr. 09 Birmingham is correct, that basically our witnesses, once we 10 put them up, you can hold them, and we can get them back 11 here, and we will get them back here. I will make that 12 commitment to you. 13 C.O. CAFFREY: All right. I now declare and rule that 14 no federal witness is excused from this proceeding until it 15 is complete. Is that satisfactory for that recommendation? 16 Thank you for that recommendation, Mr. Brandt. 17 MR. BRANDT: Can I just request some notice so I can 18 arrange to get them here when they're needed? 19 C.O. CAFFREY: We will accommodate reasonable notice. 20 When people need your people here, we will accommodate all. 21 MR. BRANDT: Thank you, Mr. Caffrey. 22 C.O. CAFFREY: Mr. Del Piero. 23 MEMBER DEL PIERO: And I want to ask a question and I 24 want to get an answer. 25 Ms. Leidigh, could you please articulate for the Board 0371 01 what the law is in regard to the Board's authority to 02 subpoena federal witnesses and what the possession of the 03 Bureau has been in and the Department has been in regards to 04 that issue? 05 C.O. CAFFREY: In a very brief way, please. 06 MS. LEIDIGH: The Board has power to issue subpoenas 07 and has subpoenaed federal employees in the past. Now, 08 there is a legal question of whether or not the Bureau has 09 to provide its employees if they are subpoenaed. And I 10 don't think it has ever been fully resolved in the courts. 11 It's more clear with respect to appearances in court than 12 before the Board. 13 Since the Board has special authority to deal with the 14 Bureau's water rights, I would certainly argue that the 15 Board has the authority to subpoena the Bureau's employees. 16 C.O. CAFFREY: That is very interesting. But, Mr. 17 Brandt, I have complete faith that you are going to provide 18 all the witnesses that we need. 19 MR. BRANDT: I will do my best. It is just a question 20 -- part of it is just timing and preparation, and, I mean, 21 the reason that they are is a statute on this issue of 22 providing witnesses in hearings or administrative hearings, 23 where we have a little bit more control, is just timing and 24 the amount of time a federal employee has committed to 25 hearings. 0372 01 C.O. CAFFREY: As long as your requests are reasonable, 02 we will try to arrange subpoenas. 03 Mr. O'Laughlin. 04 MR. BRANDT: We will try to provide and comply who is 05 needed to the extent possible. 06 MR. O'LAUGHLIN: I want to get this clear. My 07 understanding is that the Bureau voluntarily allows a 08 federal employee to testify, that that person has subjected 09 themselves to the jurisdiction of this Board. And then you 10 are going to have them here for the rest of the hearing. I 11 have no problem with that. 12 What about other federal witnesses that are not 13 voluntarily produced by the United States Bureau of 14 Reclamation? Is Mr. Brandt saying that we have free access 15 now to any federal employee that we want as long as we give 16 them reasonable notice? 17 C.O. CAFFREY: Mr. Brandt. 18 MR. BRANDT: No. But I will do what I can on a 19 case-by-case basis. It is based on how much expertise. 20 There is a whole range of things that go on in evaluation. 21 MR. O'LAUGHLIN: There is a distinction. I don't want 22 people to be under the misimpression that we can just go 23 down to the Federal Bureau, to that United States Bureau of 24 Reclamation, and say that we are going to get a -- we want 25 him to testify and bring him down here ten days later. You 0373 01 may not be able to do that. If they come here voluntarily, 02 you may have jurisdiction, but I seriously doubt if the 03 State Board has the subpoena power to force federal 04 witnesses to testify in front of the Board. 05 C.O. CAFFREY: Mr. Del Piero. 06 MEMBER DEL PIERO: Thank you. The reason I raise this 07 question, Mr. Chairman, is expressly because of the concern 08 that is being articulated by a number of parties here. 09 Inasmuch as the Bureau is here participating as a major 10 party in this hearing, and inasmuch as oftentimes they both 11 present testimony, evidence as well as cross-examine other 12 folks' witnesses, I am concerned that the Bureau is being 13 afforded an opportunity to pick and choose the quality of 14 evidence and those individuals that it will subject to 15 cross-examination during the course of this hearing. 16 Thereby, influencing at least -- diminishing the quality and 17 the value of the record that was being made here and upon 18 which the Board, our Board, will ultimately be relying on 19 for a decision. 20 So, I am raising this issue now, Mr. Chairman, hoping 21 that you in your wisdom will ultimately be able to resolve 22 this one way or the other. I guess one way is the Bureau 23 can have those witnesses that it desires to present 24 testimony and that other people have requested, they can all 25 come forward, and the Board will have a full and complete 0374 01 record. 02 Alternatively, they can pick and choose, in which case, 03 I guess, it goes to the weight of evidence as to how 04 valuable the testimony is from a witness of the Bureau. 05 C.O. CAFFREY: Furthermore, there may be witnesses that 06 people want to call at a later date that they are not aware 07 that they want to call from the federal government. That is 08 possible in all kinds of a situation, I think I can imagine. 09 I guess my reaction to all of this is that I don't 10 think anything is different in this hearing than any other 11 hearing with regard to our relationship with the federal 12 government, our rights, their rights. 13 I think the best we can do at this point is to say that 14 we are not excusing any federal witness, and we may call 15 others, and we are going to count on your complete 16 cooperation, Mr. Brandt; if it goes beyond your authority to 17 call witnesses, we will seek our means in our relationship 18 with the federal government. 19 MEMBER DEL PIERO: I have Secretary Babbitt's phone 20 number in my Rolodex. 21 C.O. CAFFREY: That's right. I know Secretary Babbitt 22 personally, and we will be assertive in our need. He is 23 supportive of this process, and we will make sure we do 24 everything humanly possible to get the federal witnesses we 25 need here. 0375 01 MR. BRANDT: That's right. And let me tell you just -- 02 C.O. CAFFREY: You and I working together. 03 MR. BRANDT: That's right. We are part of this 04 process, and we will do what we can. We have had one 05 request for -- we have only had one request, and that 06 request we are providing, Lowell Ploss. It is just a 07 question of timing and providing him in Phase II. 08 C.O. CAFFREY: With this Board, what we would very 09 appreciate is that all the red tape that you can cut through 10 to get responses with regard to witnesses we request with 11 all dispatch would be greatly appreciated. 12 MR. BRANDT: I will do what I can. I encourage anybody 13 to send me a letter or contact me directly as early as you 14 can once you identify someone, and I will work with you to 15 see what I can do. 16 C.O. CAFFREY: Mr. Birmingham, where were we? Were you 17 still questioning or what? 18 MR. BIRMINGHAM: I had asked for an opportunity to 19 confer with Mr. Ottemoeller, and I took that opportunity. 20 Based upon, I think, the understanding that has been reached 21 concerning Mr. Hildebrand's return during Phase VIII, I am 22 going to defer any more questions that I have concerning the 23 recirculation plan until that phase. 24 Mr. Herrick has assured me that he is going to be 25 here. And I apologize for having opened up this hornet's 0376 01 nest, but I will contain it to the extent that I can by 02 sitting down. 03 C.O. CAFFREY: Don't apologize. This is how we have 04 our fun here on the Board. 05 I also interrupted Mr. Del Piero a moment ago because I 06 was distracted. Mr. Del Piero was of the mind that we may 07 have an objection or motion or question still open. I 08 apologize. 09 MEMBER DEL PIERO: The issue, just to keep everybody 10 straight, Mr. Herrick raised an issue about Mr. Ploss. 11 MR. HERRICK: Yes, yes. 12 MEMBER DEL PIERO: You may want to ask Ms. Leidigh if 13 she has a recommendation to remedy that particular problem 14 since it is intrinsically tied to this section of the 15 hearing. 16 MS. LEIDIGH: I think that the appropriate procedure, 17 if you want to try it, is to ask for a subpoena to bring Mr. 18 Ploss in, and the Board would issue the subpoena since it 19 automatically issues subpoenas, and then there will be the 20 question of whether or not the Bureau would move to quash 21 the subpoena. And then we can deal with it from there. But 22 there is a legal issue as to whether or not -- 23 C.O. CAFFREY: That is certainly an option. I don't 24 believe we are going to complete Phase I today because it is 25 now 12:00, and we are going to take lunch. We are going to 0377 01 wind up at 3:00 today. 02 MR. BIRMINGHAM: I believe Mr. Herrick has an 03 alternative. 04 MR. HERRICK: Mr. Birmingham just suggested that I keep 05 my case in chief open until we are into Phase II and Mr. 06 Ploss is offered as a witness. Then we can go back to my 07 case once we have our fingers in him so he can stay here. 08 C.O. CAFFREY: Which is another way of saying we are 09 extending Phase I over to the 14th, anyway. 10 MR. BIRMINGHAM: Only for this party. 11 MR. HERRICK: I will say that I did go through the 12 procedure. 13 C.O. CAFFREY: I don't think we can do it that way. 14 How do we relate rebuttal and recross and rerebuttal, 15 rerecross if he brings out testimony that is disturbing or 16 wants to be supported by others? I have no problem with the 17 suggestion because we are not going to finish today anyway. 18 But I think -- I don't think we are going to finish today. 19 This will insure that we won't finish today. Since we are 20 quitting at three, I don't think we are going to finish 21 under circumstances in two hours. 22 Am I missing anything? 23 MEMBER FORSTER: He's limiting it to that witness. 24 MEMBER DEL PIERO: Just limit it to the witness. 25 C.O. CAFFREY: That is exactly right. That is the 0378 01 proposal. But there is potential that somebody may want to 02 rebut what that witness says, so we can't limit that 03 tightly, can we? 04 MEMBER DEL PIERO: That is correct. 05 C.O. CAFFREY: We limit it to that witness, but that 06 creates a life of its own in case others want to exercise 07 their due process in regard to that witness, is all I am 08 saying. 09 C.O. STUBCHAER: There is another question; that is 10 whether or not the cases in chief tie together and whether 11 or not his testimony would stand in isolation. I don't 12 think we can assume that it would. I think that we would 13 have to carry it over, carry all rebuttal over until after 14 that witness appears. 15 C.O. CAFFREY: I think you make a very good point, Mr. 16 Stubchaer. That doesn't disturb me. We have a lot of days 17 scheduled. We have a lot of work to do, and I would rather 18 get it right then in a short period of time get it wrong. I 19 don't believe -- 20 MR. HERRICK: As long as I can ask questions about 21 Phase I. 22 C.O. CAFFREY: We still have a full case in chief to 23 hear anyway, so I don't think this is a difficulty. 24 Mr. O'Laughlin. 25 MR. O'LAUGHLIN: Chairman Caffrey, we probably won't 0379 01 finish today, given the cross-examination that has to be 02 done still and plus the affirmative cases that have to be 03 put on. We were planning to put on the San Joaquin River 04 Agreement starting on July 14th, granted there is a motion 05 that is going to be heard that day as well. 06 C.O. CAFFREY: That is not necessarily the case. What 07 I said this morning was -- 08 MR. O'LAUGHLIN: Before we start. 09 C.O. CAFFREY: The earliest date. 10 MR. O'LAUGHLIN: Mr. Brandt and I have been 11 coordinating the testimony in regard to the San Joaquin 12 River Agreement. We just got done conferring, and what we 13 will agree is that Lowell, Mr. Ploss, was going to go later 14 on in our testimony. We will move him up to the front; he 15 will be the first witness available, so you can just 16 continue this phase until whenever Mr. Ploss will show up, 17 and we will get him done with Mr. Herrick's case in chief 18 first, and then we will put him on in our San Joaquin River 19 Agreement right after that. 20 C.O. CAFFREY: Really, I want to make sure I have this 21 straight. We have cross-examined these witnesses. Yet we 22 have separate cross-examination for Mr. Ploss, then, won't 23 we? 24 MS. LEIDIGH: Yes. 25 Okay. We still -- Mr. Birmingham, let's go back to 0380 01 your -- 02 MR. BIRMINGHAM: I'm done. 03 MR. HERRICK: If the future cross-examination doesn't 04 include these other three, I am sure they would like to get 05 back to work, but I am not trying to -- 06 MR. O'LAUGHLIN: Unfortunately, the cross-examination 07 does include the entire panel, and I would request that they 08 stay. 09 C.O. CAFFREY: I am sorry I didn't hear your original 10 statement. 11 MR. HERRICK: It's okay now. 12 C.O. CAFFREY: It's okay now. 13 Let's break for lunch, then, and we will come back with 14 -- it is now 12:10, let's come back at 1:15. 15 (Luncheon break taken.) 16 ---oOo--- 17 18 19 20 21 22 23 24 25 0381 01 AFTERNOON SESSION 02 ---oOo--- 03 C.O. CAFFREY: Let's resume the hearing. We are still 04 cross-examining the panel. Next cross-examiner is Mr. 05 O'Laughlin. 06 Mr. Gallery. 07 MR. GALLERY: I have one clerical, procedural manner, 08 if I am not out of order. 09 C.O. CAFFREY: Is it a procedural matter related to 10 this cross-examination? 11 MR. GALLERY: No, it is not. 12 C.O. CAFFREY: Why don't we wait until after we are 13 done with this. If you will stand and raise your hand, you 14 will remind me. Otherwise, we'll have little 15 synchronization, if any, left at all. 16 Mr. O'Laughlin. 17 MR. O'LAUGHLIN: Thank you, Mr. Chairman. 18 ---oOo--- 19 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 20 BY OAKDALE IRRIGATION DISTRICT 21 BY MR. O'LAUGHLIN 22 MR. O'LAUGHLIN: Gentlemen, my name is Tim O'Laughlin. 23 I am representing the San Joaquin River Group Authority here 24 today. What I will try to do this afternoon is to get done 25 with the three percipient witnesses, nonexperts, and move 0382 01 them down and out so they can go back to their livelihood. 02 And then I will take Mr. Hildebrand up. I doubt if I will 03 finish with Mr. Hildebrand today. 04 I would like to start with Mr. Robinson. 05 Mr. Robinson, can you describe your educational 06 background to us, please, briefly. 07 MR. ROBINSON: I went to grammar school on Roberts 08 Island. I went to high school in Tracy, and I went three 09 years to Cal Poly in San Luis Obispo. 10 MR. O'LAUGHLIN: Did you receive a degree from Cal 11 Poly? 12 MR. ROBINSON: No. 13 MR. O'LAUGHLIN: Do you claim to have any expertise as 14 a hydraulic engineer? 15 MR. ROBINSON: No. 16 MR. O'LAUGHLIN: Do you have any claim to expertise in 17 hydrology? 18 MR. ROBINSON: No. 19 MR. O'LAUGHLIN: And I want to focus your attention in 20 the near 1996. How many acres did you plant in 1996? 21 MR. ROBINSON: Of what? 22 MR. O'LAUGHLIN: Any planting. Total. 23 MR. ROBINSON: I farm approximately 2,000 acres. I 24 can't tell you now what we planted because some of the 25 pertinent crops. But approximately 800 acres, about a third 0383 01 of that we plant every year. I have the charts at home. If 02 you'd like, I can bring them back at another time. 03 MR. O'LAUGHLIN: In 1996, did you have alfalfa planted 04 that year? 05 MR. ROBINSON: Yes. 06 MR. O'LAUGHLIN: You said that your diversions were 07 along the Middle River; is that correct? 08 MR. ROBINSON: And the San Joaquin. 09 MR. O'LAUGHLIN: Now, along the Middle River was the 10 area adjacent thereto planted in alfalfa that year? 11 MR. ROBINSON: Some of it was. 12 MR. O'LAUGHLIN: When was the last time you did your 13 last cutting of alfalfa in 1996? 14 MR. ROBINSON: Probably early October or late September. 15 MR. O'LAUGHLIN: Can you explain to me how, if you've 16 done your last cutting of alfalfa in October of 1996, that 17 these low water levels that you depicted in these pictures 18 impacted either your yield or quality of alfalfa from that 19 field in 1996? 20 MR. ROBINSON: Well, the lands adjacent to the river 21 partially get irrigated from subirrigation from the river. 22 When it is going dry every day, it is hurting the crop that 23 way. The pictures I have taken isn't the only time the 24 river was going dry. It just happened to be when I went by 25 the river with a camera. I don't have the time to sit there 0384 01 day in and day out. I will do a better job from now on 02 watching it. 03 This has been going on for several years and longer. 04 MR. O'LAUGHLIN: Tell me how many days in 1996 that 05 Middle River went dry. 06 MR. ROBINSON: I can't tell you each and every day, but 07 I would guess maybe ten. 08 MR. O'LAUGHLIN: Ten days out of the entire year of 09 1996. Can you put those time frames when it went dry? 10 MR. ROBINSON: Probably September and October. Maybe 11 one of my pictures said November. I don't see why it should 12 go dry at all. 13 MR. O'LAUGHLIN: If we could, Mr. Chairman, I would 14 like you to direct the witness to respond to my questions 15 rather than to make extemporaneous remarks. 16 C.O. CAFFREY: We have allowed within reason witnesses 17 to make comments a little bit outside of the direct question 18 as long as it is within reason to explain themselves. To 19 put things in context. I am going to continue to allow 20 that. I will be watchful if somebody is abusive. 21 Go ahead and ask your questions, Mr. O'Laughlin. 22 MR. O'LAUGHLIN: How many other diverters are there on 23 Middle River? 24 MR. ROBINSON: Forty-nine that I know of. 25 MR. O'LAUGHLIN: Of those 49, do you know what the 0385 01 total capacity of pumping is from Middle River for those 02 diverters? 03 MR. ROBINSON: Before our barrier program went in, we 04 did a study on that. That is why I know how many diverters 05 there are, but I don't recall what the cubic-feet per second 06 was or acre-feet. 07 MR. O'LAUGHLIN: Do you know what the carrying capacity 08 is of Middle River? 09 MR. ROBINSON: No, I don't. I know it is less than it 10 was ten years ago because it is silted in on the upper end 11 now. 12 MR. O'LAUGHLIN: The silting in on the upper end, was 13 that caused by the extension of 95-6? 14 MR. ROBINSON: No. 15 MR. O'LAUGHLIN: In regards to the carrying capacity, 16 do you know if the total capacity of the 49 diverters 17 exceeds the carrying capacity of the Middle River? 18 MR. ROBINSON: I don't think it does because we didn't 19 have that kind of problem before we got into heavy pumping. 20 MR. O'LAUGHLIN: Do you have any records to quantify 21 that statement or to support that statement? 22 MR. ROBINSON: I think our agency does. 23 MR. O'LAUGHLIN: You think it does, but did you present 24 that here today with you? 25 MR. ROBINSON: No, I didn't. 0386 01 MR. O'LAUGHLIN: Do you know if Mr. Hildebrand has that? 02 MR. ROBINSON: No, I don't. 03 MR. O'LAUGHLIN: You really don't know if that 04 information exists; isn't that correct? 05 MR. ROBINSON: I am not sure. 06 MR. O'LAUGHLIN: Now, is there any coordination between 07 the 49 pumpers along the Middle River as to when they will 08 be diverting water and the amount of water they will be 09 diverting? 10 MR. ROBINSON: No. 11 MR. O'LAUGHLIN: So, it may be that all 49 diverters on 12 the Middle River would turn on their pumps all at the same 13 time without coordination and exceed the carrying capacity 14 of the Middle River; is that correct. 15 MR. ROBINSON: I think not. I disagree with you 16 because I think probably during the middle part of the 17 summer most of those pumps are running most of the time. 18 MR. O'LAUGHLIN: Once again, you have no quantification 19 to support such a statement; is that correct? 20 MR. ROBINSON: Say the question again. 21 MR. O'LAUGHLIN: Once again you have no quantification 22 for -- 23 MR. ROBINSON: Before that. 24 MR. O'LAUGHLIN: Yes. What I wanted to know is whether 25 or not -- 0387 01 MR. ROBINSON: Do the pumps, all pumps have more than 02 the carrying capacity of the river? 03 MR. O'LAUGHLIN: Is that possible? 04 MR. ROBINSON: Could be possible. I have never seen a 05 problem other than just the last few years. 06 MR. O'LAUGHLIN: In regards to your damages, let's 07 focus in on 1996 which seems to be one of the years that you 08 are complaining about, other than alfalfa, what else did you 09 have planted that year? 10 MR. ROBINSON: We had wheat. 11 MR. O'LAUGHLIN: Was that winter wheat? 12 MR. ROBINSON: I think it is called spring wheat. It 13 is planted in the wintertime. 14 MR. O'LAUGHLIN: That would have been planted in the 15 fall of 1995 and harvested in 1996; is that correct? 16 MR. ROBINSON: Right. 17 MR. O'LAUGHLIN: How is it that the river, Middle 18 River, going dry or any other problem you had caused your 19 winter wheat damage? 20 MR. ROBINSON: I never said it damaged the winter 21 wheat. 22 MR. O'LAUGHLIN: So no damage to winter wheat. What is 23 your next crop that you planted in 1996? 24 MR. ROBINSON: Safflower, which is usually preirrigated 25 and not irrigated during the summer. 0388 01 MR. O'LAUGHLIN: Did you miss a preirrigation on 02 safflower in 1996? 03 MR. ROBINSON: I can't recall whether we did or not. 04 MR. O'LAUGHLIN: Did you have any damage to your 05 safflower in 1996? 06 MR. ROBINSON: I can't recall. 07 MR. O'LAUGHLIN: What other crop did you plant besides 08 winter wheat and safflower? 09 MR. ROBINSON: Maybe oats. Oats or hay. 10 MR. O'LAUGHLIN: When are oats for hay normally 11 planted? 12 MR. ROBINSON: Like wheat, in the wintertime. 13 MR. O'LAUGHLIN: Did you miss any irrigations on your 14 oats for hay? 15 MR. ROBINSON: No. 16 MR. O'LAUGHLIN: Are you claiming any damages for oats 17 to hay in 1996? 18 MR. ROBINSON: No. 19 MR. O'LAUGHLIN: It makes it easier for the Court 20 Reporter if you -- 21 MR. ROBINSON: No, no. I never said that. 22 MR. O'LAUGHLIN: Just a second. It makes it easier for 23 the Court Reporter if you wait until I finish asking my 24 questions, and I will extend you the same courtesy in your 25 responses. Because if we both talk at the same time, she 0389 01 has difficulty taking us down. Okay? 02 Now the next one is: What other crop did you plant in 03 1996? 04 MR. ROBINSON: I think that is probably corn, maybe 05 corn. 06 MR. O'LAUGHLIN: When did you normally plant corn? 07 MR. ROBINSON: In April. 08 MR. O'LAUGHLIN: Are you claiming any damage to your 09 corn crop in 1996 due to the -- 10 MR. ROBINSON: No. 11 MR. O'LAUGHLIN: What damages are you claiming to your 12 crops in 1996? Can you be more specific rather than -- 13 MR. ROBINSON: I am speaking for the agency, as being a 14 member of the agency, that a general drawdown of Middle 15 River, Old River, Grant Line Canal is causing problems to us 16 in general, causing damage to the pumps, which are very 17 expensive to fix, and damage that creeps along on a crop 18 where it is hard to measure by missing one irrigation. But 19 if it happens over a period of a week or two-week period, 20 you end up with, maybe, 20 percent less production. You are 21 not really realizing why until you go and look and say, "We 22 had to stop irrigations and rerun water." And it could be 23 maybe attributed to weather. It could be maybe attributed 24 to water drawdown, but it's occurred over a period of years 25 along these rivers where we have run out of water at times 0390 01 during the -- usually the highest pumping rates to the 02 exporters during the summer months. 03 MR. O'LAUGHLIN: So your testimony says, though, that 04 all of these things have occurred to me personally as well 05 as my neighbors? 06 MR. ROBINSON: They have. 07 MR. O'LAUGHLIN: Well, wait a second, sir. 08 Are you now saying that you did not suffer damages in 09 1996, but maybe your neighbors did? 10 MR. ROBINSON: No, I didn't say that at all. 11 MR. O'LAUGHLIN: Why don't you quantify for me what 12 crops specifically suffered damage in 1996 due to the 13 channel depletion in South Delta Water Agency. 14 MR. ROBINSON: I will do that if you would let me go 15 home and come back at a later time. I will come with our 16 records of production with my best judgment of what 17 happened. I don't have them with me today. 18 MR. O'LAUGHLIN: Have you ever submitted your crop data 19 loss to either Mr. Herrick or Mr. Hildebrand? 20 MR. ROBINSON: No, not to my knowledge. 21 MR. O'LAUGHLIN: Has South Delta Water Agency as an 22 agency that is concerned about the impacts to its farmers 23 within its service area ever done a study in the last three 24 years to identify its crop damage due to the extension of 25 95-06? 0391 01 MR. ROBINSON: Not in the last three years. I think we 02 did a salt and, Alex can correct me, a salt damage and water 03 drought over a long period of years that we used, or Alex 04 used, at a previous hearing several years ago. 05 MR. O'LAUGHLIN: More specifically, within the last 06 three years has South Delta Water Agency done a study to 07 identify the crop damage caused by the extension of 95-06? 08 MR. ROBINSON: No, not to my knowledge. 09 MR. O'LAUGHLIN: You state in your testimony that the 10 export pumps seriously change the flows in South Delta. Can 11 you tell me upon which expertise you base that opinion? 12 MR. ROBINSON: I can tell by my observation when the 13 river goes dry. 14 MR. O'LAUGHLIN: Your assertion is that, basically, you 15 look out and see the river dry; therefore, it must be the 16 export pumps? 17 MR. ROBINSON: You want me to explain why how I started 18 to know this? You want to take a little time? 19 MR. O'LAUGHLIN: No. I will ask the questions and if 20 you would respond. 21 MR. ROBINSON: I observed -- 22 C.O. CAFFREY: Wait a minute, gentlemen. This is not 23 an argument or debate. This is just asking and answering 24 questions. Answer them to the best of your ability, sir. 25 And, please, the admonishment, even though it was made by 0392 01 the attorney asking questions, he was correct about the 02 difficulty for the court stenographer. 03 MR. ROBINSON: I am sorry. I thought he would be 04 done. 05 In 1968 -- '64 when I started farming, and about 1968 06 we started having water level problems in a section of 07 Middle River where we and some others divert off of a 08 channel off of the main river. We had to dredge that or dig 09 it with a dragline and deepen it. We have had to do that 10 several times. 11 As the state pumps came more on line and started 12 diverting more water, we started having more problems in 13 more different areas of Middle River, mainly the upper third 14 of it, where it gets very shallow and dries up at points 15 during the summer when there is no downstream flow and heavy 16 diversions. That is what I base what I think is happening 17 on. 18 C.O. CAFFREY: They're consulting over here. 19 MR. O'LAUGHLIN: Since 1968, can you draw distinction 20 between the water level problems that you had in the 21 extension of 95-06? 22 MR. ROBINSON: No. 23 MR. O'LAUGHLIN: I have no further questions of Mr. 24 Robinson. 25 Mr. Salmon, can you briefly describe for me your 0393 01 educational background. 02 MR. SALMON: I went to Cal Poly for four years. 03 C.O. CAFFREY: Could you please move the mike over to 04 Mr. Salmon. 05 MR. SALMON: I attended Cal Poly for four years in fuel 06 crops, and I have been farming in this area since 1974. 07 MR. O'LAUGHLIN: Do you have an engineering degree? 08 MR. SALMON: No, I do not. 09 MR. O'LAUGHLIN: Did you obtain a degree from Cal Poly? 10 MR. SALMON: No, I did not. 11 MR. O'LAUGHLIN: You say you divert from the Grant Line 12 Canal; is that correct? 13 MR. SALMON: The Grant Line Canal and Middle River in 14 two places. 15 MR. O'LAUGHLIN: Let's focus on the Grant Line Canal 16 briefly. 17 How many diverters are there on the Grant Line Canal? 18 MR. SALMON: I have no idea. 19 MR. O'LAUGHLIN: Do you know what the total capacity of 20 the pumping facilities to divert water from Grant Line Canal 21 are? 22 MR. SALMON: No, I do not. 23 MR. O'LAUGHLIN: Do you know what the carrying capacity 24 of Grant Line Canal is? 25 MR. SALMON: No, I do not. 0394 01 MR. O'LAUGHLIN: How many diversions do you have on 02 Grant Line Canal? 03 MR. SALMON: One. 04 MR. O'LAUGHLIN: Do you drain water, surface water, 05 back into Grant Line Canal? 06 MR. SALMON: Yes, I do. 07 MR. O'LAUGHLIN: And that is after you've applied it to 08 your crops; is that correct? 09 MR. SALMON: That is correct. 10 MR. O'LAUGHLIN: Have you ever done an examination of 11 the PPM TDS of your discharge back into Grant Line Canal? 12 MR. SALMON: I have done ECs. 13 C.O. CAFFREY: What are your ECs like of the drain 14 water coming back into Grant Line Canal? 15 MR. HERRICK: Your Honor, I just object. I don't 16 believe we had any questions on the discharge waters as part 17 of the direct examination. 18 C.O. CAFFREY: I would -- 19 MR. O'LAUGHLIN: This all goes to the whole question 20 of the extension of -- 21 C.O. CAFFREY: I am not going to rule it is irrelevant 22 because our regulations don't require that cross-examination 23 be limited by the scope of direct testimony. 24 Is that not correct, Ms. Leidigh? 25 MS. LEIDIGH: That is correct. Cross can go beyond the 0395 01 scope of direct. 02 C.O. CAFFREY: Please proceed, and do your best to keep 03 going. 04 MR. O'LAUGHLIN: What are the EC levels of your drain 05 water going back into Grant Line Canal? 06 MR. SALMON: Well, it depends on the year. During the 07 drought years it was pretty much the same at all times which 08 was in the Grant Line itself. 09 And I noticed, for instance, if I took out of the Grant 10 Line the water, the diversion, I am just using this as an 11 example of say, 700 parts of salt, what -- that is basically 12 after it went through; that is basically what I put back. 13 MR. O'LAUGHLIN: Is that true in every year that you 14 have checked your EC? 15 MR. SALMON: Well, it is always pretty much true, 16 except the ECs changed because depending on up river. The 17 Grant Line, itself, has gone probably -- well, you never 18 check it when it is just terrific. I am going to say it 19 would run around 350, 400, maybe. It has gone as high as 20 1400, 1600 in some of the drought years. 21 MR. O'LAUGHLIN: Do other farmers along the Grant Line 22 Canal also drain back into the Grant Line Canal? 23 MR. SALMON: I would say in most instances, yes. 24 MR. O'LAUGHLIN: What happens to that water that the 25 Grant Line barriers in? 0396 01 MR. SALMON: Well, it gets mixed in with the water on 02 the Grant Line. 03 MR. O'LAUGHLIN: It is rediverted again and used by 04 other farmers on Grant Line? 05 MR. SALMON: I would assume since it is mixed in with 06 it. 07 MR. O'LAUGHLIN: Can you quantify for us the damages 08 that you have suffered pursuant to extension of 95-06? 09 MR. SALMON: No. 10 MR. O'LAUGHLIN: Have you done any analysis on your 11 farm or for South Delta Water Agency generally to try to 12 ascertain the damages to South Delta Water Agency or 13 yourself in regards to crops lost during the extension of 14 95-06? 15 MR. SALMON: Probably my most dramatic experience has 16 been with my walnuts. And I have seen a decline in my trees 17 and the vigor of the growth, and this has to do with quality 18 of the water and the fact that sometimes I have an 19 irrigation problem. 20 MR. O'LAUGHLIN: How old are your walnut trees? 21 MR. SALMON: They go anywheres from 30, 35 years to 8 22 years old. 23 MR. O'LAUGHLIN: How many acres do you have planted in 24 walnuts? 25 MR. SALMON: 480. 0397 01 MR. O'LAUGHLIN: Mr. Ferguson, what is your educational 02 background? 03 MR. FERGUSON: College graduate. 04 MR. O'LAUGHLIN: What college? 05 MR. FERGUSON: Cal Poly San Luis. 06 MR. O'LAUGHLIN: What did you attain your degree in? 07 MR. FERGUSON: Business. 08 MR. O'LAUGHLIN: Do you know how many diversions there 09 are on Grant Line Canal? 10 MR. FERGUSON: No, sir. 11 MR. O'LAUGHLIN: Do you know how many drains there are 12 back into Grant Line Canal for people who divert water from 13 Grant Line Canal? 14 MR. FERGUSON: No, sir. 15 MR. O'LAUGHLIN: Do you drain back into Grant Line 16 Canal? 17 MR. FERGUSON: Yes, I do. 18 MR. O'LAUGHLIN: Have you ever looked into the EC 19 levels of your drain water as it returns to Grant Line Canal? 20 MR. FERGUSON: Yes, I have. 21 MR. O'LAUGHLIN: What are your EC levels on your return 22 flow to Grant Line Canal? 23 MR. FERGUSON: I have not taken -- I haven't reviewed 24 those numbers in several years, obviously, for water coming 25 down the last three years. But during the drought years as 0398 01 Mr. Salmon has mentioned to you the numbers are fairly the 02 same. 03 MR. O'LAUGHLIN: So, basically, what you take out of 04 the canal, as far as PPM TDS, you return to the canal as 05 total parts per million; is that correct? 06 MR. FERGUSON: One more time with the abbreviations. 07 MR. O'LAUGHLIN: Sure. In other words, the water 08 quality that you get out of Grant Line Canal you turn in the 09 same shape through your drain water; is that correct? 10 MR. FERGUSON: In normal years. In drought years salts 11 are running high; they may run -- what I take in, I'll 12 probably discharge slightly higher. 13 MR. O'LAUGHLIN: Have you quantified what your crop 14 damages have been during the last three years pursuant to 15 operation of 95-06? 16 MR. FERGUSON: Can you be more specific? 17 MR. O'LAUGHLIN: Sure. Are you claiming that you 18 suffered crop damages from 1995 through the present due to 19 the operation of or through water right Order 95-06? 20 MR. FERGUSON: Can you be more specific with 21 "claiming"? What I am saying or way I have put in a -- 22 MR. O'LAUGHLIN: Have you quantified it in any way? 23 Have you written down records of, like, your tomato 24 production was off 10 percent from the year previous? 25 MR. FERGUSON: My alfalfa, yes. 0399 01 MR. O'LAUGHLIN: When did you have a alfalfa problem? 02 MR. FERGUSON: It started in probably '96-97 or 03 '95-96, noticing the water levels, in particular on my home 04 ranch, it was just darn difficult to irrigate. And in the 05 middle of the summer when water was tough to have enough 06 water pressure to irrigate, home ranch, where the alfalfa 07 was, I know there was a reduction in overall production 08 where the overall tonnage for the year was down from the 09 year prior. 10 MR. O'LAUGHLIN: Has it recovered since then? Do you 11 know? 12 MR. FERGUSON: We have had better weather conditions 13 and higher water levels. I am sorry, over the -- 14 MR. O'LAUGHLIN: Since 1995-96 has it come back? 15 MR. FERGUSON: I no longer have alfalfa in those 16 fields. 17 MR. O'LAUGHLIN: If you like, Chairman Caffrey, I am 18 done with the three percipient witnesses, as I call them. 19 If you would like, I can step back and if anybody else has 20 questions of them so they can be done and go back to 21 farming, and then we can take up Mr. Hildebrand later, if 22 you'd like. 23 C.O. CAFFREY: Are there others that wish to 24 cross-examine these witnesses? 25 I am going to ask one more time. 0400 01 Mr. Brown. 02 MEMBER BROWN: Do you have access to groundwater out 03 there? 04 MR. SALMON: No, no groundwater. As far as wells, 05 no. 06 MR. ROBINSON: Poor quality. 07 MR. SALMON: Salt. 08 C.O. CAFFREY: Anything else from the Board Members? 09 Anything from the staff for these three gentlemen? 10 If nobody else has questions of you three gentlemen, we 11 can dismiss you. We may eventually need you back here for 12 rebuttal. I know that -- 13 Mr. Herrick over behind the flag, at least in relation 14 to me, you're aware that these folks need to be available. 15 We will not be getting to rebuttal today. I think they can 16 be dismissed today, unless Ms. Leidigh is shaking her head. 17 MS. LEIDIGH: I just wanted to make a point of 18 clarification. Rebuttal evidence is put on by other parties 19 against the party who testified. It does not involve 20 calling back the witnesses, themselves, unless they are 21 subpoenaed or in some way called as an adverse witness by 22 the other party. 23 So, I don't think it's necessary to require them to be 24 available as a continuation of Mr. Herrick's case in chief. 25 C.O. CAFFREY: I think you have some debate up here, 0401 01 Ms. Leidigh. 02 Mr. Stubchaer. 03 C.O. STUBCHAER: It just seemed to me that we said that 04 if parties needed to cross-examine people later, they could 05 do so by calling them as adverse witnesses in other phases. 06 MS. LEIDIGH: That wouldn't be as a continuation of 07 this. 08 C.O. STUBCHAER: No. But they may still need to be 09 available in later phases. 10 MS. LEIDIGH: That would be made available separately. 11 C.O. CAFFREY: I was not trying to be that technical. 12 I was just trying to point out that they can go home. I 13 don't want to get them grumpy. 14 MR. ROBINSON: We would be glad to come back. 15 C.O. CAFFREY: We really work hard not to be. 16 Gentlemen, thank you. 17 Thank you for staying, Mr. Hildebrand. 18 You may proceed, Mr. O'Laughlin. 19 MR. O'LAUGHLIN: Thank you. 20 Mr. Hildebrand, has South Delta Water Agency done a 21 report for crop damages to its landowners within its service 22 area for the impacts due to 95-06 for the last three years? 23 MR. HILDEBRAND: No. The thing that is getting 24 overlooked in all this dialogue is that the last three years 25 were wet years. So, they are not representative of what 0402 01 would happen under 95-6 if it were extended. 02 We have made a detailed assessment that was referred to 03 earlier in years gone by. The cropping patterns haven't 04 changed significantly. In order to grow a pound of biomass, 05 a given crop still has to consume a certain amount of water. 06 That hasn't changed. And so the testimony we submitted many 07 years ago is still quite relevant today. 08 But you can't just look at the two- or three-year 09 period and use that as being representative of a longer 10 period. It really doesn't have a lot to do with the 11 extension of 95-6. 12 MR. O'LAUGHLIN: What is it about 95-6 that has harmed 13 the landowners within South Delta Water Agency? I am a 14 little confused about that. 15 MR. HILDEBRAND: 95-6, because of the wet weather, has 16 not hurt us very much, yet. And to the extent that it has, 17 it's primarily further upstream. However, as I said earlier 18 today, the problem is that if you extend this the prognoses 19 that were made by the Bureau themselves that there will be 20 substantial violations of the Vernalis salinity standard on 21 a statistical basis. 22 C.O. STUBCHAER: Ignore that. 23 MR. HILDEBRAND: Did I go for 20 minutes? 24 C.O. STUBCHAER: That was for Mr. O'Laughlin. He is 25 supposed to show us now why he needs more time. 0403 01 MR. O'LAUGHLIN: We can do this one of three ways. 02 C.O. STUBCHAER: I am sorry, I am sorry. That was for 03 the whole cross-examination. 04 MEMBER BROWN: It just seemed like an hour. 05 C.O. STUBCHAER: Timer error. 06 C.O. CAFFREY: Mr. Brown said that. 07 MEMBER BROWN: My apologies. 08 C.O. CAFFREY: Don't apologize. 09 Mr. Stubchaer said that it is a timer mistake. We 10 don't make mistakes up here. 11 C.O. STUBCHAER: I am the timer. 12 C.O. CAFFREY: Let me point out why we have this 13 friendly humorous hiatus. I was just handed a note: 14 Copies of the letter postponing Phase V 15 deadline will be at the back table at the end 16 of today. (Reading.) 17 So, you can all pick up your copies. It will also be 18 mailed, I presume, to the parties, just to make sure we 19 covered everybody. 20 MS. WHITNEY: Faxed, E-mailed and mailed today. 21 C.O. CAFFREY: There is no determination yet of a new 22 day for Phase V. This is merely the courtesy to all the 23 parties who may be breaking their necks to make the Monday 24 deadline. We will announce the date, the replacement date, 25 at a later date. 0404 01 Please proceed, Mr. O'Laughlin. 02 MR. O'LAUGHLIN: Thank you. 03 You referred to the prognosis by the United States 04 Bureau of Reclamation as indicating that the extension of 05 95-06 may cause harm to landowners within South Delta Water 06 Agency. 07 Can you tell me to what document you are referring to? 08 MR. HILDEBRAND: We have submitted that in our 09 testimony here. It is SDWA 23. It is a copy of information 10 that was released by the Bureau of their analysis of what 11 would happen to the compliance with the salinity standard 12 under their interim plan. They are proposing to proceed 13 with that interim plan if you extend 95-6. 14 MR. O'LAUGHLIN: Let me ask the chicken-and-the-egg 15 question first. What came first, 95-6 or the Interim 16 Operation Plan? 17 MR. HILDEBRAND: I don't think it makes any difference. 18 The question -- 19 MR. O'LAUGHLIN: What happens if you extend that, 20 though? A simple question, which one came first, 95-06 or 21 the Interim Operation Plan? 22 MR. HILDEBRAND: I am not quite sure of the answer to 23 that. 24 MR. O'LAUGHLIN: Now, looking at Exhibit Number 23, 25 South Delta Water Agency Exhibit Number 23, can you tell me 0405 01 what that is, Mr. Hildebrand? 02 MR. HILDEBRAND: It's a computer analysis of the 03 consequences of making a delivery -- operating on the 04 operating plan that is proposed by the Bureau as their 05 interim plan. 06 MR. O'LAUGHLIN: Can you tell me what the first page of 07 South Delta Water Agency Exhibit Number 23 is? 08 MR. HILDEBRAND: The first page gives the -- how much 09 water they would release on a given year type during certain 10 months, on different blocks here, assuming a certain amount 11 of storage carryover and assuming a certain amount of 12 inflow. 13 MR. O'LAUGHLIN: In looking at this South Delta Water 14 Agency Exhibit Number 23, the first page, on the first 15 column and the second one down, it has the maximum annual 16 water quality release in thousands of acre-feet. Do you see 17 that? 18 MR. HILDEBRAND: (No response.) 19 MR. O'LAUGHLIN: Second box down, first column. 20 MR. HILDEBRAND: Second box down, first column, yes. 21 Gives a maximum annual water quality release that they would 22 make under that. 23 MR. O'LAUGHLIN: Let's go through this. Maybe we can 24 explain this a little bit in case the people are not 25 familiar with this exhibit. 0406 01 When the storage plus inflow is between zero and 1.4 02 million acre-feet, that means on a pro rata basis that water 03 quality zero would receive 0 to 70,000 acre-feet; is that 04 correct? 05 MR. HILDEBRAND: I am not sure what you mean by "pro 06 rata." That is the maximum they would release under that 07 situation for water quality control. 08 MR. O'LAUGHLIN: Do you understand that there is a 09 linear relationship between 0 and 1.4 million acre-feet and 10 0 and 70,000 acre-feet; that is, as you move up the line, 11 the water quality releases would increase in that time 12 period? 13 MR. HILDEBRAND: Not quite sure whether that was 14 intended to be linear or not. 15 MR. O'LAUGHLIN: Do you know if it is or not? 16 MR. HILDEBRAND: No, I don't. 17 MR. O'LAUGHLIN: In going down the chart, so if we look 18 on the left-hand side it shows the storage plus the inflow 19 and then on the right-hand side of the column it would show 20 the water quality releases in thousands of acre-feet for 21 that time period; is that correct? 22 MR. HILDEBRAND: That's correct. 23 Now wait a minute. It's the release they would make 24 if it were needed. When you get down to the bottom of the 25 thing and they say in a very wet year, they would release 0407 01 250,000, that isn't what it really says. What it says, you 02 would need it if it were needed. They would release that if 03 it were needed. Everybody knows it would not be needed in 04 the wet year, probably nothing would be needed, and putting 05 that 250,000 in there is just kind of a bunch of baloney. 06 It has no relevance to the real world. 07 MR. O'LAUGHLIN: Did you participate in the Stanislaus 08 Stakeholders Process? 09 MR. HILDEBRAND: Yes. 10 MR. O'LAUGHLIN: Can you explain to the Board what 11 Stanislaus Stakeholders Process is. 12 MR. HILDEBRAND: That is probably a different answer 13 from different people on that. There were a lot of 14 interested parties in the use of water in the Stanislaus. 15 Those who use it for agriculture, those who use it for 16 downstream and those who would like to export it and those 17 for fishery. And we had a lot of meetings to debate how to 18 optimize the use of the river system under different water 19 situations. 20 This got started way back during the drought. And at 21 that time it was a very effective system for citing, where 22 we all recognized that there wasn't enough water to meet the 23 needs, and we would sort of agree on how to share the pain 24 and to the extent that we were going to be shorted, for 25 example, on water quality why we would say, "Well, it would 0408 01 hurt us more if you exceed the salinity standard this time 02 of the year than that time of the year." 03 It was a very comfortable collaborative process. Now 04 then, after the CVPIA went in operation and they started 05 making these fishery flows that far exceeded the 1987 06 agreement between the Bureau and the Fish and Game, then it 07 became a whole new ball game. They were releasing water for 08 fish far beyond anything that was contemplated when the 09 reservoir was built. And what it amounts to is that they 10 now propose to provide some of those flows by not 11 maintaining water quality. That is where we come apart. We 12 never did agree to the interim operation. 13 MR. O'LAUGHLIN: That was going to be one of my next 14 questions. Let me get to another one first. 15 You participated in those meetings on behalf of South 16 Delta Water Agency; is that correct? 17 MR. HILDEBRAND: Yes. I didn't attend every meeting, 18 but I -- 19 MR. O'LAUGHLIN: That is because there were so many 20 meetings; is that correct? 21 MR. HILDEBRAND: That's correct. 22 MR. O'LAUGHLIN: In this process in order to arrive at 23 an interim operation plan, took almost 18 months; is that 24 correct? 25 MR. HILDEBRAND: It was a long time. I couldn't just 0409 01 say how long. 02 MR. O'LAUGHLIN: One of the goals of the Interim 03 Operation Plan was to get an interim operation plan in place 04 at New Melones before the Bureau got a long-term operation 05 plan in place; is that correct? 06 MR. HILDEBRAND: That is correct. But there was a lot 07 of difference of opinion as to whether the interim plan 08 should be on a year-to-year basis when you know how much 09 water you've got in the dam or whether it should be two 10 years. Some of us never did agree it should be more than 11 one year. 12 MR. O'LAUGHLIN: The Interim Operation Plan was only 13 agreed to by the stakeholders to be in place for two years; 14 is that correct? 15 MR. HILDEBRAND: It was agreed by some stakeholders to 16 be for two years. Some of us didn't agree to that. 17 MR. O'LAUGHLIN: That is correct. 18 Isn't it true, though, that there is nothing within the 19 Stanislaus Stakeholders Process that prohibits the United 20 States Bureau of Reclamation from changing the Interim 21 Operation Plan; is that correct? 22 MR. HILDEBRAND: That is correct. It is also correct 23 that there is nothing that says they won't. 24 MR. O'LAUGHLIN: In fact, is there anything within the 25 extension of water right Order 95-6 that says the Bureau 0410 01 will operate pursuant to the Interim Operation Plan? 02 MR. HILDEBRAND: You can't entirely extricate these 03 different things. As you well know, the San Joaquin River 04 Agreement, so-called, embodies the interim plan as it now 05 stands for 12 years. So it ceases to be a one-year thing, 06 and it gets at least implicitly locked in for a 12-year 07 period. 08 Whether we would do that, I don't know. That is the 09 way the agreement reads. 10 MR. O'LAUGHLIN: What language are you referring to 11 within the San Joaquin River Agreement that makes the Bureau 12 operate New Melones pursuant to the Interim Operation Plan 13 for the next 12 years? 14 MR. HILDEBRAND: I don't suppose it makes them do it. 15 But if you look at Mr. Steiner's testimony, he makes a 16 forecast of what will happen during different year types 17 during the next 12 years. He assumes they are going to 18 operate on the interim plan as it now stands. 19 MR. O'LAUGHLIN: Isn't it true, Mr. Hildebrand, that 20 the San Joaquin River Agreement specifically states that if 21 the United States Bureau of Reclamation changes the Interim 22 Operation Plan that they may do so? 23 MR. HILDEBRAND: That is true, yes. But the estimates 24 of the amount of water that the tributaries are going to 25 have to release to meet their -- the obligation under the 0411 01 agreement will be affected by whether the Bureau changes. 02 And if they would change in the manner that would be more 03 acceptable to us, it would increase the burden on the other 04 tributaries. 05 MR. O'LAUGHLIN: In fact, the Stanislaus Stakeholders 06 Process is still ongoing; is that correct? 07 MR. HILDEBRAND: It's stumbling. I don't know whether 08 it is really alive now or not. 09 MR. O'LAUGHLIN: Isn't it true, though, that the 10 interested parties have taken on various tasks and 11 assignments to get done in the next year in order for the 12 Bureau to come back in the year 2000 and put into place a 13 long-term plan for New Melones? 14 MR. HILDEBRAND: There are some groups that -- for 15 various reasons I missed the last meeting or two. I 16 understand there are some groups that are continuing to work 17 on such things as water temperature problems in the 18 river and other things of that sort. They will not, as I 19 understand it, cover all of the aspects of or considerations 20 that would have to go into a change in plan. But I was also 21 informed that the meeting that I didn't attend, this last 22 meeting, that they only plan to meet now on a much slower 23 schedule, that the Bureau is pretty much going to decide 24 what to do, and merely to take into account the results from 25 these remaining efforts. 0412 01 MR. O'LAUGHLIN: Looking at South Delta Water Agency 02 Exhibit Number 23, do you know what computer model this was 03 run on? 04 MR. HILDEBRAND: Probably SANJASM, but I can't say for 05 sure. 06 MR. O'LAUGHLIN: Did anybody within the employ of South 07 Delta Water Agency independently review these modeling 08 results? 09 MR. HILDEBRAND: No. Why should we? If the Bureau 10 puts this out as the document they are going to operate to, 11 we are not going to second-guess them. 12 MR. O'LAUGHLIN: So, you believe it is true and correct 13 that the impacts in the amounts of water made available 14 hereunder are true and correct? 15 MR. HILDEBRAND: Based on the inputs they have here I 16 don't question the outputs. 17 MR. O'LAUGHLIN: Let's focus on Page 2 of South Delta 18 Water Agency Exhibit Number 23. On the sixth one down it is 19 water quality compared to specified standards? 20 MR. HILDEBRAND: Uh-huh. 21 MR. O'LAUGHLIN: Is this the table that you're 22 referring to when you arrive at the conclusion that 40 23 percent of the water years they would not be meeting water 24 quality? 25 MR. HILDEBRAND: Yes. It indicates that the releases 0413 01 would be deficient in 31 years out of 71 or -2, whatever it 02 was, and that we were informed was without the detriment 03 that could be caused by any reallocation of summer flow to 04 spring flow as a result of water purchases. It does not 05 take account of any water sales that might be made to other 06 parties. And indicates that the deficiency in release could 07 be as high as 101,000 acre-feet in any one year. 08 So, yes. That is what you learn from that. 09 MR. O'LAUGHLIN: In the average annual deficiency 10 appears to be 20,000 acre-feet; is that correct? 11 MR. HILDEBRAND: That is an average annual. It 12 includes the wet years. That doesn't really signify 13 anything. If you look at the deficit in deficit years, it's 14 46,000. 15 MR. O'LAUGHLIN: Now, did some South Delta Water Agency 16 determine the years in which the number of days in which any 17 given year that there would be a deficit? In other words, 18 have you looked at a year like 1977 and determined how many 19 days in that year you would have a deficit? 20 MR. HILDEBRAND: We haven't done that. But we're well 21 aware that in some of these years it is going to be a lot of 22 days, and Mr. Steiner's analysis does indicate a magnitude 23 of that duration. 24 MR. O'LAUGHLIN: Looking at this chart upon which you 25 base your opinion, can you tell by this chart whether there 0414 01 is one day in a year that's deficient or 200 days in a year 02 that's deficient? 03 MR. HILDEBRAND: Not by looking at this chart. But the 04 deficiency is of the magnitude they indicate is related to 05 amount they are going to release us, got to be quite 06 extensive. 07 MR. O'LAUGHLIN: Have you done any independent analysis 08 for South Delta Water Agency to determine the number of days 09 within any given year within the 72-year trace period of the 10 deficit? 11 MR. HILDEBRAND: See no reason to do that. If they're 12 going to deficits of this magnitude, it's no darn good. 13 Whether it is going to be 30 days or 20 days or 40 days 14 really doesn't make a lot of difference. Furthermore, that 15 gets partly into the question of how do you utilize the 16 amount of release they are going to make? Are you going to 17 use it all up until it's gone and then have no control the 18 rest of the year, or are you going to control it to some 19 lesser degree for a longer period? And as I say, during the 20 drought, they permitted us to become a party to making that 21 decision, but there is no commitment to do that this time. 22 MR. O'LAUGHLIN: Have you made a determination as to 23 -- or has South Delta Water Agency tried to differentiate 24 the impacts of 95-06 with the Interim Operation Plan as to 25 the impacts of water quality at Vernalis? In other words, 0415 01 is 95-06 causing the problem with water quality at Vernalis, 02 or is it the Interim Operation Plan from New Melones? 03 MR. HILDEBRAND: 95-6 does not keep them from 04 proceeding to make their own decision as to whether they 05 will meet the salinity standard or whether they will short 06 some other commitment of theirs. So, as long as you 07 continue the 95-6, you continue the situation wherein that 08 decision, discretionary decision, of how they meet their 09 commitments is left up to the Bureau instead of being 10 dictated by the Board and then consequently any extension of 11 that situation is not an acceptable thing to do. 12 MR. O'LAUGHLIN: If you like, before I go on, if you 13 would like to take a short break and then come back, or do 14 you want me to keep going? 15 C.O. CAFFREY: Actually, since we have previously 16 announced that we weren't going to go past 3:00 today, we 17 will just keep going. In fact, what I will probably do is 18 wind up at around a quarter to three so we can go to Mr. 19 Gallery's question. I promised him we would get to him 20 today, and then we will just resume on the 14th. 21 MR. O'LAUGHLIN: You mentioned earlier in your 22 testimony that water purchases that occurred in the last 23 several years have impacted South Delta Water Agency. 24 Can you describe how those water purchases have impacted 25 South Delta Water Agency. 0416 01 MR. HILDEBRAND: They -- some of those cases become 02 moot because of the heavy flows in wet weather. They would 03 have impacted us had we not had flood flows. So, not going 04 back over it, I can't say offhand which ones didn't indeed 05 damage us. But predominantly it was the potential for 06 damage which was bailed out because of the flood flows which 07 nobody could anticipate. 08 MR. O'LAUGHLIN: Well, how is that the water transfers 09 in April and May by Oakdale and South San Joaquin Irrigation 10 District were bailed out by flood flows that occurred in 11 December, January and February? Can you explain that to me? 12 MR. HILDEBRAND: The total flow of the San Joaquin 13 River ran high, from whatever source. So that there was -- 14 those flows provided dilution and did not have the salinity 15 problem that we otherwise would have had. 16 MR. O'LAUGHLIN: Did you file a lawsuit against Merced 17 Irrigation District in regard to their water transfer? 18 MR. HILDEBRAND: Yes. 19 MR. O'LAUGHLIN: What was the outcome of that 20 decision? 21 MR. HILDEBRAND: I am not quite sure I can keep 22 straight in my mind which of these are which. As I recall, 23 the thing became moot because the Merced Irrigation District 24 was paid by the Bureau with taxpayer money to shift their 25 normal pattern of power release from the summer, when it 0417 01 would be made in the normal economic situation, and instead 02 released it in the spring. So it was a direct switch from 03 the summer flow to the spring flow. And if they took that 04 out of their storage, which I think they asserted they would 05 do, at some point in time then they would produce less power 06 or do something else and reduce the flow in the river. 07 But because we had a wet winter, the reservoir was 08 refilled and it didn't actually hurt us. 09 MR. O'LAUGHLIN: I am going to get back to that point 10 about stored water and carryover which affects water 11 transfers. I want to focus your attention on the South 12 Delta Water Agency versus United States of America, 13 Department of Interior, Bureau of Reclamation 14 lawsuit. There was a -- are you aware of the order filed on 15 May 21st, 1998, in the Eastern District of California by 16 Judge Burrell in regards to the lawsuit brought by South 17 Delta Water Agency? 18 MR. HILDEBRAND: Yes. 19 MR. O'LAUGHLIN: Can you generally summarize for the 20 Board what the Judge's ruling was in regards to the 21 complaint that you lodged against the United States. 22 MR. HILDEBRAND: Well, the fundamental thing that 23 happened was that after the lawsuit was filed we had flood 24 flows and The Court had said they would adjudicate this 25 prior to the time of the intended release in early April, I 0418 01 think it was. The Court did not meet its own schedule on 02 that. Therefore, by the time it came before The Court, the 03 subject was basically moot. And we had hoped that he would, 04 nevertheless, make some kind of ruling on what the law 05 should have provided in the event that it were to happen 06 again. He chose not to do that. We have to wait and file 07 another lawsuit when we have a similar situation. 08 MR. O'LAUGHLIN: Isn't it true, Mr. Hildebrand, that in 09 fact, Judge Burrell did address the merits of your case and 10 found that there would be absolutely no significant impacts 11 caused by the water transfer from Oakdale and South San 12 Joaquin Irrigation District to the United States Bureau of 13 Reclamation? 14 MR. HILDEBRAND: That is not my understanding. 15 MR. O'LAUGHLIN: I have rebuttal. I will submit that 16 for rebuttal in record. 17 In regards to -- 18 MR. NOMELLINI: What is the procedure? You are 19 offering a document in evidence that hasn't been reproduced? 20 MR. O'LAUGHLIN: Not yet. 21 C.O. CAFFREY: He was refusing as an attorney to 22 testify. 23 MR. O'LAUGHLIN: That's right. Absolutely. 24 Did you -- were you aware of the lawsuit filed by South 25 Delta Water Agency against Oakdale and South San Joaquin in 0419 01 regards to the water transfers that they have made to the 02 United States Bureau of Reclamation in the last two years? 03 MR. HILDEBRAND: I am aware of the suit, yes. 04 MR. O'LAUGHLIN: Did you participate in that suit? 05 MR. HILDEBRAND: No. 06 MR. O'LAUGHLIN: Was it your understanding that Central 07 Delta Water Agency would sue the districts and South Delta 08 Water Agency would sue the United States Bureau of 09 Reclamation? 10 MR. HILDEBRAND: That is what we did. 11 MR. O'LAUGHLIN: Do you know what the result of the 12 lawsuit by Central Delta Water Agency was in regards to the 13 water sale by Oakdale and South San Joaquin Irrigation 14 District? 15 MR. HILDEBRAND: I don't know exactly what the ruling 16 was. It was adverse to petitioner. But the significance of 17 the loss, I am not aware of. 18 MR. O'LAUGHLIN: Can you tie up for me, in your mind, 19 how water sales pursuant CVPIA go to the extension of water 20 right Order 95-06. 21 MR. HILDEBRAND: The water sales for the reasons I just 22 discussed earlier, there being a limited total availability 23 of water in the system had the affect of reallocating the 24 water from the summer flow to the spring flow. 25 Whether the reallocation actually occurred in the same 0420 01 year or subsequent year, it is not predetermined. 02 Consequently, as long as that goes on and as long as the 03 present situation is allowed to continue by extending 95-6, 04 we have to assume that kind of thing will continue. If 95-6 05 does not continue, presumably the Board will take more 06 control of the situation and see that we don't have a 07 detriment. 08 MR. O'LAUGHLIN: But isn't it true there is nothing 09 within water right Order 95-06 that calls for water 10 transfers or prohibits water transfers; is that correct? 11 MR. HILDEBRAND: My point is that the problem is not 12 what is in it, but what happens if you allow it to 13 continue. And we know what is happening if you allow it to 14 continue. We want the Board to take charge and not leave 15 these discretionary decisions up to other parties. 16 MR. O'LAUGHLIN: I am still perplexed, and maybe I'm 17 beating a dead point because we will never get to it, but 18 what is it specifically within 95-06 that prohibits or calls 19 for water transfers to occur? There is nothing -- 20 MR. HILDEBRAND: It is not what is in it, it is what 21 isn't in it. 22 MR. O'LAUGHLIN: In fact, the Water Code specifically 23 sets out the provisions for making transfers; is that 24 correct? 25 MR. HILDEBRAND: The Water Code does, I think, with 0421 01 some loopholes. 02 MR. O'LAUGHLIN: In fact, if a downstream landholder 03 has a complaint in regards to a water transfer, it could 04 bring that complaint in front of the State Water Resources 05 Control Board? 06 MR. HILDEBRAND: Not always. 07 MR. O'LAUGHLIN: Did you bring any action to the State 08 Water Resources Control Board that the landowners within 09 South Delta Water Agency would be harmed by the water 10 transfers that is made by Oakdale and South San Joaquin 11 Irrigation District to the United States Bureau of 12 Reclamation? 13 MR. HILDEBRAND: Yes. 14 MR. O'LAUGHLIN: What was the State Board's response? 15 MR. HILDEBRAND: The State Board did not choose to take 16 control in that situation. 17 MR. O'LAUGHLIN: Did you file a writ of mandamus? 18 MR. HILDEBRAND: I am not aware. I get mixed up with 19 all these terms. 20 MR. O'LAUGHLIN: Did you file a lawsuit because the 21 Board didn't act properly? 22 MR. HILDEBRAND: I think you should ask those questions 23 of our lawyer rather than of me. 24 MR. O'LAUGHLIN: Unfortunately, he won't be a witness. 25 In regards to the Interim Operation Plan, when it was 0422 01 adopted, did you file a lawsuit against the United States 02 Bureau of Reclamation for the adoption of the Interim 03 Operation Plan? 04 MR. HILDEBRAND: No. 05 MR. O'LAUGHLIN: Is there a reason why if you were 06 going to be so significantly impacted by the Interim 07 Operation Plan that you didn't file a lawsuit against the 08 United States Bureau of Reclamation? 09 MR. HILDEBRAND: We have a lawsuit against the Bureau 10 of Reclamation that was filed way back in 1980 or '82, I 11 guess it was, and that has been held, suspended, but it is 12 still there and we may well reactivate it. 13 MR. O'LAUGHLIN: You didn't specifically file one on 14 the Interim Operation Plan; is that correct? 15 MR. HILDEBRAND: No. If we want to do that, we 16 probably just reactivate the old suit. 17 MR. O'LAUGHLIN: Is it your contention that South Delta 18 Water Agency landowners have a right to water from either 19 the Tuolumne, Stanislaus, Merced or San Joaquin Rivers in 20 excess of the natural flow of those rivers? 21 MR. HILDEBRAND: Yes. The legal details of that I am 22 not qualified to address in detail. But we do have some 23 rights to the water that is in the system over and above the 24 riparian rights, and that if it is used -- if that water 25 were used in accordance with the original pre-1914 rights 0423 01 upstream, we would get a return flow. And we have been 02 living on that return flow, you might say, in both quantity 03 and quality for many years, and we have some right to 04 continuance of that. 05 MR. O'LAUGHLIN: Do you remember I took your deposition 06 a week ago? 07 MR. HILDEBRAND: How could I fail to remember something 08 that happened from nine in the morning till four in the 09 afternoon? 10 MEMBER DEL PIERO: Mr. Hildebrand, we have been sitting 11 in hearings here for six years. I can assure you the Board 12 Members don't remember some of those dates. 13 MR. O'LAUGHLIN: Can you quantify for me what are the 14 appropriate rights within South Delta Water Agency? 15 MR. HILDEBRAND: What are the appropriative rights? 16 MR. O'LAUGHLIN: Yes. In other words, what landowners 17 within the South Delta Water Agency have appropriative 18 rights and can you quantify the face value amounts of those 19 appropriative rights? 20 MR. HILDEBRAND: I think you asked me that question 21 before? 22 MR. O'LAUGHLIN: Yeah, I have. 23 MR. HILDEBRAND: The Banta-Carbona District and the 24 West Side Irrigation District have appropriative rights. I 25 don't know as much about the water, the right of -- the 0424 01 nature of the appropriative for West Side. In case of 02 Banta, it goes way, way back to pre-1914. There are a few 03 other minor appropriative rights where people manage to 04 sever their riparian rights in one way or otherwise, but 05 they don't amount to much, and I can't quantify that. 06 MR. O'LAUGHLIN: Basically, as we sit here today, as 07 far as you know, South Delta Water Agency has no 08 quantification of the appropriative rights of the landowners 09 within South Delta Water Agency? 10 MR. HILDEBRAND: We can easily look up what those two 11 major diverters are. I don't have them in my mind, no. 12 MR. O'LAUGHLIN: Do you know if Banta-Carbona has ever 13 filed a complaint with the State Water Resources Control 14 Board claiming that their appropriative rights have been 15 infringed by any upstream diversions? 16 MR. HILDEBRAND: I don't know. 17 MR. O'LAUGHLIN: Do you know if West Side Irrigation 18 District has filed a complaint alleging that it has been 19 harmed by upstream diversions? 20 MR. HILDEBRAND: I don't know. 21 MR. O'LAUGHLIN: Do you know how many of the 22 appropriative rights fall within South Delta Water Agency 23 which are what I would call duplicative of the riparian 24 rights held by the landowners? 25 MR. HILDEBRAND: I don't know how much, but I, myself, 0425 01 are one of those who double-upped and got both appropriative 02 and riparian rights. 03 MR. O'LAUGHLIN: Is it South Delta Water Agency's 04 contention that landowners are entitled to require upstream 05 reservoir owner and operators to release stored water for 06 riparian uses in the South Delta Water Agency? 07 MR. HILDEBRAND: Again, I would rather have the lawyer 08 discuss this. It is my understanding, however, that the 09 riparian right is a right to unimpaired now. That, however, 10 there are some additional rights to water in the system. I 11 am less familiar with the legal aspects of them which I 12 mentioned just a few moments ago. 13 MR. O'LAUGHLIN: Briefly I want to bring to your 14 attention -- did South Delta Water Agency file a complaint 15 in the matter of the Calaveras County Water District request 16 for permits for change of place of use and purpose of use? 17 MR. HILDEBRAND: We did file an action. I don't -- I 18 am not certain whether we are talking about the same action, 19 but I suppose we are. 20 MR. O'LAUGHLIN: That for Calaveras County Water 21 District's ability to change the place of use and purpose of 22 use of its water right? 23 MR. HILDEBRAND: Yes. 24 MR. O'LAUGHLIN: Did South Delta Water Agency file a 25 protest to that petition? 0426 01 MR. HILDEBRAND: Yes. 02 MR. O'LAUGHLIN: In fact, the State Water Resources 03 Control Board issued an order on that Called Water Right 04 Order 95-07; is that correct? 05 MR. HILDEBRAND: I don't know the number. 06 MR. O'LAUGHLIN: Do you know what happened to the 07 complaints brought by South Delta Water Agency against 08 Calaveras County Water District in regards to their change 09 petition? 10 MR. HILDEBRAND: Our position was that, although they 11 had an area of origin right to divert water, that their 12 previous permit was purely a storage permit for power 13 purposes, and if they were now proposing to divert some of 14 the stored water outside the watershed, which would then 15 decrease the inflow to New Melones, and that in turn would 16 reduce the availability of water for the purpose of 17 maintaining water quality in the riparian rights. 18 C.O. CAFFREY: That was an hour of 19 cross-examination. I presume you are going to need more 20 time, Mr. O'Laughlin? 21 MR. O'LAUGHLIN: Yes, I am. 22 C.O. CAFFREY: Could you roughly estimate how much more 23 you are going to need? 24 MR. O'LAUGHLIN: I'll go up until a quarter till 25 three. 0427 01 C.O. CAFFREY: Will that complete with this witness or 02 do you think you may need time when we meet again? 03 MR. O'LAUGHLIN: I will probably need additional time 04 when we meet again. I have to go through the San Joaquin -- 05 the SJRIO and the exhibits that will be offered into 06 evidence by South Delta Water Agency. 07 C.O. CAFFREY: Just a rough estimate, if you will, 08 about the total amount of time you will need for your 09 cross-examination. 10 MR. O'LAUGHLIN: Probably about an hour more. 11 C.O. CAFFREY: Another hour? 12 MR. O'LAUGHLIN: Yes. 13 C.O. CAFFREY: Mr. Herrick, you are going to -- 14 MR. HERRICK: I assume you will let him do that. I 15 would like to point out that when I asked for a few extra 16 minutes on direct you said, "You've got 30 seconds." 17 C.O. CAFFREY: That is correct. Here is the reason 18 why: This is an interpretation from a nonlawyer, and, 19 nevertheless, I am chair. 20 Direct, the way our regulations are set up, direct 21 testimony is a summarization of exhibits that have already 22 been submitted on a timely basis. Therefore, we try to hold 23 everybody to that if we can. If we allow you to go five, 24 ten, fifteen minutes longer, we have to really afford the 25 same thing for everybody else. 0428 01 Cross-examination is a kind of discovery process which, 02 if the questions are relevant and pertinent, if you cut 03 somebody off, you are running the risk of denying them due 04 process. While we like to keep it within an hour, we treat 05 the hour on cross-examination as a goal. 06 If Mr. O'Laughlin says he needs another hour, we will 07 have to allow him to continue and hope that it is relevant 08 questioning. 09 May I ask, Mr. Herrick, while you are here, do you -- 10 are you going to be presenting redirect after we get through 11 with the cross-examination? 12 MR. HERRICK: Very little, but yes. 13 C.O. CAFFREY: Just to get an idea of -- it is starting 14 to look like maybe it will be the 15th before we get started 15 on Phase II, and that's all right, maybe some other time, 16 anyway. We will take the time we need to get it done 17 right. 18 It is just about 20 minutes after 2. Mr. Hildebrand, 19 perhaps I should ask you, do you need a minute or two to -- 20 MR. HILDEBRAND: If I could survive what he did to me 21 before, I can do it again. 22 C.O. CAFFREY: All right. I think we are all victims 23 of this room, including Mr. O'Laughlin. Anyway, let's go to 24 a quarter to three, then, and we will hear from Mr. Gallery, 25 and you can resume on the 14th, then, Mr. O'Laughlin. 0429 01 Please proceed. 02 MR. O'LAUGHLIN: Thank you. 03 In regards to -- let's focus in on Oakdale and South 04 San Joaquin Irrigation District water transfers. What is 05 your contention about the transfers that they have made to 06 the Bureau in the last two years that has caused you damage 07 at South Delta Water Agency? 08 MR. HILDEBRAND: As I just said, since it turned out to 09 be flood years, it didn't do us much damage. But the time 10 the transactions were committed, nobody knew it was going 11 to be a flood year. It could have been, just had not been. 12 MR. O'LAUGHLIN: How could it have -- leaving aside, 13 hypothetically, I mean, what occurred in the actual 14 transfers, what you are saying is at that time you didn't 15 know what the hydrology would look like so it may have been 16 that when the transfers took place, you would have an impact 17 at South Delta Water Agency, correct? 18 MR. HILDEBRAND: Either at that time or in a subsequent 19 year. 20 MR. O'LAUGHLIN: Let's focus in on the immediate year 21 in which the transfers were made and then we will talk about 22 the subsequent years next. 23 How is it that a transfer from Oakdale Irrigation 24 District and South San Joaquin Irrigation District to the 25 United States Bureau of Reclamation at New Melones Reservoir 0430 01 would cause harm to South Delta Water Agency? 02 MR. HILDEBRAND: As we have just seen looking at these 03 exhibits from the Bureau, the amount of water they were 04 released to maintain water quality depends in significant 05 part on how much water they have in the dam. 06 If Oakdale/South San Joaquin did not take the water and 07 it was left in the dam, it would be more water in the dam, 08 and they would release more for water quality. If, on the 09 other hand, they don't leave it in the dam, but you take it 10 and just don't irrigate very efficiently, then comes much of 11 it back to return flow, and we get it that way. In the 12 latter case, it affects us in the current year and the other 13 case it may be in a later year. 14 MR. O'LAUGHLIN: Are you making any claim the right to 15 the water that has been stored and diverted for irrigation 16 to be entitled as riparian to the return flow? 17 MR. HILDEBRAND: I believe we have some entitlement to 18 water that is utilized in accordance with the pre-1914 19 rights and generates return flow and that if you make a 20 sale, which causes it to be used in a different manner, we 21 have some basis for objecting to that. As I said before, 22 this is a more complex legal question, and I don't want to 23 try to pretend I am a lawyer. 24 MR. O'LAUGHLIN: Okay. If riparians are entitled to 25 natural flow and someone stores water and diverts it for 0431 01 irrigation, is it your understanding, then, that you are 02 entitled to that water that returns back to the river? 03 MR. HILDEBRAND: I believe we have some entitlement to 04 that water. 05 MR. O'LAUGHLIN: Have you ever asserted that as far as 06 you can remember in any case in front of the State Water 07 Resources Control Board? 08 MR. HILDEBRAND: I don't recall. 09 MR. O'LAUGHLIN: Isn't it true that you did, in fact, 10 assert that in the Calaveras County Water District case? 11 MR. HILDEBRAND: Yes. 12 MR. O'LAUGHLIN: In fact, the Board said that your 13 riparian rights, on Page 14 of Page 25, stated: 14 Riparian rights do not attach to water that 15 someone has stored from an earlier season and 16 released or that someone has brought in from 17 another watershed. (Reading.) 18 Is that correct? 19 MR. HILDEBRAND: Yes. I believe that was their ruling. 20 We don't agree with it. 21 MR. O'LAUGHLIN: Now, let's focus on this year, the 22 year in which there is impact. How is it that you rely on 23 return flows from the upstream diverters? Can you explain 24 that to me. 25 MR. HILDEBRAND: In dry years that is all we have at 0432 01 Vernalis, is return flows from upstream diverters. 02 MR. O'LAUGHLIN: Do you know if the -- in dry years 03 that that return flow is natural flow and is directly 04 diverted, or is it stored water? 05 MR. HILDEBRAND: Not easy for us to tell at any given 06 moment which it is. 07 MR. O'LAUGHLIN: That is another interesting question, 08 another interesting point that I wanted to bring up here. 09 Has South Delta Water Agency ever looked at, on a yearly 10 basis, what the natural flow was in the San Joaquin River 11 vis-a-vis what was actually occurring out in the river? 12 MR. HILDEBRAND: Repeat that question. 13 MR. O'LAUGHLIN: Let's pick a year like -- 1991 sounds 14 like a good year. Has South Delta Water Agency made any 15 determination through modeling or any other analysis as to 16 the amount of water that should have been in the river 17 versus the amount of water that was in the river? 18 MR. HILDEBRAND: We have relied somewhat on the State 19 Board on that. And during those very dry years, the State 20 Board put out notices that the appropriators should stop 21 using water, and later in the event that, I think on one 22 occasion, they thought that the riparians also -- 23 MR. O'LAUGHLIN: Let's focus -- have you looked at the 24 amount of water that would have been in the river? Are you 25 claiming that there is a decrease in the quantity of water 0433 01 being available to South Delta Water Agency over and above 02 what the riparian rights would have been? 03 MR. HILDEBRAND: Say that once more. 04 MR. O'LAUGHLIN: In other words, are you claiming that 05 -- I am confused. I've also been confused whether or not 06 South Delta Water Agency is claiming a quality problem or a 07 quantity problem. 08 MR. HILDEBRAND: Both. 09 MR. O'LAUGHLIN: Have you done an analysis to look at 10 any particular year to ascertain whether there should be 11 more water in the San Joaquin River than what is there in 12 real time because somebody is taking your riparian water? 13 MR. HILDEBRAND: Well, let me give you an example. 14 MR. O'LAUGHLIN: Okay. 15 MR. HILDEBRAND: The June 1990 report between the 16 Bureau and the South Delta Water Agency assessed the 17 decrease in flow that occurred in various year types as a 18 result of the failure to have any flow coming out of -- 19 MR. O'LAUGHLIN: What exhibit number is that? 20 MR. HILDEBRAND: Number 14. 21 In a dry year, for example, the reduction in runoff at 22 Vernalis that was attributable to the CVP's operation came 23 to 128,000 acre-feet. 24 MR. O'LAUGHLIN: That was for the entire year; is that 25 correct? 0434 01 MR. HILDEBRAND: Yes. 02 MR. O'LAUGHLIN: Are you claiming, then, that in a dry 03 year under this analysis that your riparians would have been 04 diverting for the entire year and would put that water to 05 beneficial use? 06 MR. HILDEBRAND: We probably were diverting for the 07 entire year. 08 MR. O'LAUGHLIN: In a year like that, do you have any 09 numbers to support that theory? 10 MR. HILDEBRAND: Not specific to that year. But as you 11 heard from these other gentlemen, we do do some irrigation 12 all year round. The amount of reduction just due to Friant 13 from April through September was 6,000 acre-feet. But in 14 that kind of year we would be doing quite a bit of 15 irrigation outside of the April/September period. 16 MR. O'LAUGHLIN: What -- the point I am trying to get 17 across here is, can you show us in your yearly basis where 18 your riparian diverters would have been reasonably and 19 beneficially using water and that water is not there now? 20 Do you have that analysis? 21 MR. HILDEBRAND: We know when the Vernalis flow has 22 been less than our diversions. Channel depletion in South 23 Delta at those times, we are -- we have deficient water 24 supply. 25 MR. O'LAUGHLIN: Let's understand it. You have a 0435 01 channel depletion. You have a deficiency because you think 02 You're entitled to pump X amount of water in the month of 03 May. What happens if there wasn't that natural flow there 04 in the stated nature? Do you still say that you are 05 entitled to take stored water from other people to make up 06 for the deficiency? 07 MR. HILDEBRAND: Not necessarily. However, that is not 08 what happens. For example, the City of San Francisco is 09 diverting about five times as much water out of Tuolumne as 10 they did in 1950. And the use of water upstream of us has 11 increased substantially. 12 So, in addition to this cutoff of Friant water, we have 13 other depletions, the flow. I have owned my property since 14 1944, when I got back from the war, and I can't recall 15 anytime except 1976 and '77 when we didn't have a more 16 natural flow than we have now. 17 MR. O'LAUGHLIN: Did you make an ascertainment as to 18 whether that was natural flow or stored water that was being 19 released? 20 MR. HILDEBRAND: Been a lot of years, and I know darn 21 well it wouldn't be any stored water released for our 22 benefit. That is for sure. 23 MR. O'LAUGHLIN: Do you have a quantification of that 24 or a record of that or any evidence that is tangible that 25 you can show us to support such a statement? 0436 01 MR. HILDEBRAND: Well, of course, you're implying that 02 personal observations are worthless. 03 MR. O'LAUGHLIN: I am not implying anything. 04 MR. HILDEBRAND: I can't identify any particular year 05 when we made the kind of analysis that you proposed for that 06 particular year. But we do have a lot of analyses that are 07 on a broader basis. 08 MR. O'LAUGHLIN: Let's focus on Exhibit 14 for just a 09 little bit. 10 Would you agree that your peak irrigation probably 11 occurs from April through September? 12 MR. HILDEBRAND: Yes. Peak does, but not the whole 13 thing. 14 MR. O'LAUGHLIN: You all understand that you irrigate 15 all year round for this; but the peak of it or the majority 16 of your irrigation occurs in April through September; is 17 that correct? 18 MR. HILDEBRAND: Well, in dry and critical years we do 19 a lot of irrigation in March. 20 MR. O'LAUGHLIN: Let's look at the impact here. It 21 says: 22 Reduction in runoff in acre-feet. (Reading.) 23 And it is 6,000 acre-feet under the CVP? Do you see 24 that, for April-September period? 25 MR. HILDEBRAND: That is just one tributary. 0437 01 MR. O'LAUGHLIN: That is one tributary. Can you 02 quantify for me what that reduction meant to the farmers 03 within South Delta Water Agency? 04 MR. HILDEBRAND: When you have very little water, and 05 if you have that much less water, that is pretty serious. 06 MR. O'LAUGHLIN: Now, you talked earlier about people 07 acting prudently and not acting prudently in regards to the 08 use of their water. Can you tell me what you mean by 09 "acting prudently" in regards to water sales. 10 MR. HILDEBRAND: I assume that in the absence of the 11 sales that the districts would operate in a prudent manner 12 in their own interest. Now, then, if they are paid to act 13 in what has become an unprudent manner in their own interest 14 absent the sale, then that will cause a change in what they 15 do. 16 For example, going back to the Merced case, nobody was 17 paying them to make power releases in April, May, instead of 18 in the summer and fall, they wouldn't make them in April and 19 May. By shifting it from the later season to the fish flow 20 season, we have enough water, we have enough water quality. 21 It doesn't do us any good that you are depriving us at a 22 later date. 23 MR. O'LAUGHLIN: So, basically, the prudency is that 24 they are not acting prudently because they are getting paid 25 to make a water transfer which then may impact you later in 0438 01 the summer? 02 MR. HILDEBRAND: It becomes prudent because the Bureau 03 is using taxpayer money to pay you to do something that 04 would not be prudent in the absence of the sale. 05 MR. O'LAUGHLIN: Was there anything that you could look 06 at in -- I want to focus and Mr. Robbins will talk to you a 07 little more about Merced. I get kind of confused on their 08 water transfers. 09 Is there anything you are asserting in regards to the 10 Oakdale and San Joaquin Irrigation District transfer to the 11 Bureau that was done illegally? 12 MR. HILDEBRAND: I didn't say it was done illegally. 13 Illegally from the standpoint of the district. From the 14 standpoint of the Bureau, I think it was a violation of the 15 provisions the CVPIA which says they must purchase water 16 that is a result of either reduction in consumptive use or a 17 reduction in the amount of water lost to beneficial use. 18 Those sales didn't comply with that. 19 MR. O'LAUGHLIN: I am confused because on Page 1 of 20 South Delta Water Agency Exhibit Number 27 you state: 21 It is all being beneficially used at some 22 point in time. All the water within the San 23 Joaquin River is being beneficially used at 24 some point in time. (Reading.) 25 So how is it that they are not beneficially using it 0439 01 now? 02 MR. HILDEBRAND: They are beneficially using it now. 03 MR. O'LAUGHLIN: Just not good for you because -- 04 MR. HILDEBRAND: It is good for us when they 05 beneficially use it the way they do when they are acting 06 prudently, not being -- 07 MR. O'LAUGHLIN: Acting the way you want them to act? 08 MR. HILDEBRAND: Acting in their own self-interest in 09 the absence of a bribe. 10 MR. O'LAUGHLIN: So the bribe is that the United States 11 Bureau of Reclamation, operating pursuant to the 12 Congressional Act, has gone out and used CVPIA money to 13 purchase water for a program mandated by Congress? 14 MR. ROBBINS: Excuse me. I object to the 15 characterization of the payment for transfers as a bribe. I 16 further instruct the witness not to use accusatory language 17 relative to this matter. 18 MR. HERRICK: I don't think he can instruct the witness 19 to do anything. 20 MR. O'LAUGHLIN: I took that rather -- 21 C.O. CAFFREY: He asked me to instruct the witness, and 22 I also took it as rhetoric, possibly not the kind of 23 rhetoric we want to hear every other word. 24 I will remind the witness to try to refrain from too 25 much rhetoric, as we will call it that. 0440 01 MR. O'LAUGHLIN: I want to clear up another thing real 02 quickly here. Your understanding is that taxpayer dollars 03 went to pay for the Oakdale and South San Joaquin Irrigation 04 District transfer? 05 MR. HILDEBRAND: I assume so. 06 MR. O'LAUGHLIN: But do you know? 07 MR. HILDEBRAND: It is money that was provided, I am 08 told, by the Fish and Wildlife Service, and they get their 09 money from various sources. The taxpayers may have been 10 paying it via surcharges on water or something of that sort. 11 MR. O'LAUGHLIN: Well, so, it is truly not a tax. What 12 you are talking about is that this money was gathered up 13 through the CVPIA Restoration Fund and was subsequently, 14 pursuant to Congress and through the actions of the Bureau, 15 paid to Oakdale and South San Joaquin Irrigation District; 16 it is not tax money, is it? 17 MR. HILDEBRAND: Gets down to your definition of a tax, 18 I guess. 19 MR. O'LAUGHLIN: I see it is a quarter to three, Mr. 20 Chairman. 21 C.O. CAFFREY: That clock is five minutes fast. 22 MEMBER FORSTER: I think it is a quarter to three. 23 24 C.O. CAFFREY: Let's go another five. I am only 25 kidding. If that is a reasonable breaking point for you, 0441 01 Mr. O'Laughlin -- 02 MR. O'LAUGHLIN: Thank you, it is. 03 C.O. CAFFREY: We don't want Ms. Forster to have a 04 psychotic episode. I came close a couple times myself, 05 anyway. 06 All right, then, what we are going to do is we are 07 going to hear from Mr. Gallery in a couple of minutes. 08 Let's talk a little bit about -- let's hear from Mr. 09 Gallery. Why don't you come forward. 10 MR. HILDEBRAND: I am excused? 11 C.O. CAFFREY: Yes, you are excused until 9:00 -- 12 Wednesday or is it Tuesday? 13 MS. LEIDIGH: Tuesday. 14 C.O. CAFFREY: Tuesday, July 14th, in the hearing room 15 across the street, the Board's regular hearing room. 16 MR. HILDEBRAND: See you then. 17 C.O. CAFFREY: Thank you, Mr. Hildebrand. 18 Mr. Gallery. 19 MR. GALLERY: Mr. Chairman, thank you. Will there be 20 room enough in that hearing room for everyone that is likely 21 to attend? 22 C.O. CAFFREY: I don't know how many people are likely 23 to attend. But if there isn't, we will do our best to 24 accommodate. We may have to set some chairs up in other 25 rooms. We have a wireless system so that people can go back 0442 01 and forth. I am hoping, though, that won't be necessary. 02 MEMBER DEL PIERO: This is not Show Boat. 03 MR. GALLERY: I want to just get cleared up on the use 04 of how we use testimony from Phase I or II in, like, Phase 05 V, VI or VII. I put in testimony for Phase II and it is 06 marked Phase II, and I will have that same witness, the 07 testimony gets into salinity in the Bam proceeding, and will 08 be bringing that same witness back in Phase V, VI and VII. 09 We will be wanting to say some of those same things again. 10 Do I merely incorporate that Phase II testimony? I 11 don't have to -- certainly don't have to produce -- in my 12 Phase V exhibits do I just incorporate that by reference or 13 do I -- you certainly don't want copies of that all over 14 again? 15 C.O. CAFFREY: What is the preferred way, Ms. Leidigh? 16 MS. LEIDIGH: I think we said that people could just 17 refer to that testimony. Basically, I think you should cite 18 the record, cite the numbers of the exhibits and the place 19 in the transcript where the testimony is set forth. And 20 then you can make your further points. 21 If you do happen to bring the witness back, you can go 22 on from that point. Or if you are not bringing the witness 23 back, when you have your opportunity to brief for that 24 phase, you will be able to cite to that part of the record 25 for purposes of your brief. 0443 01 MR. GALLERY: So then, I don't have to do a request 02 that this be incorporated by reference in my list of 03 exhibits; we can just make that request at the time or in 04 the testimony? 05 MS. LEIDIGH: No. This is actually all one hearing 06 record. 07 MR. GALLERY: So, it is not eight separate records; it 08 is all going to be one record? 09 MS. LEIDIGH: Yes. 10 MR. GALLERY: I think that clears it up. 11 Thank you. 12 C.O. CAFFREY: Thank you, Mr. Gallery. 13 Mr. Jackson. 14 MR. JACKSON: Are there eight separate briefs? Are we 15 going to try to brief every individual phase? 16 MS. LEIDIGH: We contemplated doing that, but the Board 17 can change that. 18 C.O. CAFFREY: I can't hear you. 19 MS. LEIDIGH: What I was saying was that, generally, I 20 think we have contemplated that there would be eight 21 separate rounds of briefing. But the Board can change that 22 if the Board wishes to. 23 MR. JACKSON: Would you, please. Eight sets -- I don't 24 think there is anybody here, I may be wrong, that would 25 really want to try to write a brief based around individual 0444 01 phases, because you really don't know what evidence you are 02 going to be able to cite in the brief until they are all 03 down. 04 C.O. CAFFREY: Mr. Del Piero. 05 MEMBER FORSTER: I guess I have a question for you. Is 06 that your position in the event the Board chooses to go 07 forward with these agreements? 08 C.O. CAFFREY: You see, Mr. Jackson, we are all 09 learning as we go. What if the Board -- 10 MEMBER DEL PIERO: I think, Mike, you are going to want 11 to brief. 12 MR. JACKSON: Yeah, if you decide to do -- 13 C.O. CAFFREY: I would think so. 14 MR. JACKSON: Okay. 15 MR. ALADJEM: Mr. Chairman. 16 C.O. CAFFREY: Mr. Aladjem. 17 MR. ALADJEM: The question is, as Mr. Gallery was 18 saying, if it is the case that he can introduce in Phase V 19 an exhibit that he has introduced in Phase I and do that at 20 the hearing, how will the rest of us know that he is going 21 to use that as part of his case in chief in Phase V? 22 C.O. CAFFREY: I did not understand that to be his 23 question. Mr. Gallery, where are you? 24 I think what I interpreted you to mean was that, when 25 you submitted your exhibit list, you would repeat it for 0445 01 each phase, but then when you got here, did you have to have 02 a physical submittal or can you just refer to it as having 03 been submitted in the previous phases. Is that what you 04 meant? 05 MR. GALLERY: Yes. In my list for Exhibit 5 I would 06 make reference to the previous exhibits that I -- 07 C.O. CAFFREY: You would have done so in your timely 08 submittal in the first place. These would not be surprises 09 in each of the phases. 10 MR. ALADJEM: That is what I wanted to clarify, Mr. 11 Caffrey. 12 Thank you. 13 C.O. CAFFREY: Thank you, Mr. Aladjem. 14 Thank you, MR. Gallery. 15 Mr. Nomellini. 16 MR. NOMELLINI: You're confusing me now. If we didn't 17 specify what phases, you know, we started out at the 18 beginning with the evidence in. That would be used for the 19 entire hearing process. Now you are saying we incorporate 20 that in each phase by some facial document at each phase. 21 C.O. CAFFREY: Did I say that? 22 MS. LEIDIGH: No. 23 MR. NOMELLINI: I think that is what you said. What 24 happens if you don't reference it? It is in the record. 25 We've got it in Phase I. We write our brief in Phase V. 0446 01 Let's say we don't put any case in chief in Phase V. As I 02 understood previously, we can refer to that evidence; it is 03 in the record. 04 C.O. CAFFREY: That's correct. 05 MR. NOMELLINI: We don't have to list it again and say 06 we are going to use it in Phase II or Phase V? 07 C.O. CAFFREY: We were talking about cases in chief, I 08 believe. That is the difference. 09 MR. NOMELLINI: All right. 10 C.O. CAFFREY: Somebody else in the back? 11 Ms. Cahill. 12 MS. CAHILL: Virginia Cahill. I had understood the 13 exhibits would just be numbered sequentially throughout the 14 whole proceeding. So that if my exhibits in Phase I were 1 15 through 10 and in Phase III I would have 11 through 20, are 16 you now saying that when I do 11 through 20 I also have to 17 incorporate by reference 1 through 10? 18 C.O. CAFFREY: No, not if you are not going to use 19 them. 20 MS. CAHILL: If you are going to use them? 21 MR. O'LAUGHLIN: Just have to note it. 22 C.O. CAFFREY: I am sorry, did Ms. Cahill get her 23 question answered? 24 I am sorry, Ms. Cahill, we were distracted here. 25 Please ask your question again. 0447 01 MS. CAHILL: My understanding has been, given that it 02 was one hearing, we would sequentially number all our 03 exhibits. So, if I put in exhibits for Phase I and they are 04 1 through 10, and then I come to Phase III, then I am going 05 to put in 11 through 20. I haven't seen that there was any 06 necessity in Phase III to go back and identify which of 1 07 through 10, which hopefully by then were all admitted, I was 08 going to be -- would also be relevant to Phase III. 09 And now I think I am hearing that every time we file a 10 new list, we also have to indicate which of our old ones we 11 are going to rely on again. 12 C.O. CAFFREY: It is all part of the same record. So, 13 you are saying we don't have to do that? 14 MS. LEIDIGH: Right. 15 MS. CAHILL: I would think you shouldn't have to. 16 C.O. CAFFREY: I am sorry if I caused some confusion. 17 Mr. Gallery. 18 MR. GALLERY: I think that Ms. Cahill should tell us in 19 her list of exhibits for Phase III which ones of her 20 exhibits of Exhibit 1 through 10 from Phase I she is going 21 to use or refer to. Because, otherwise we really won't know 22 whether we need to go back and read 1 through 10 unless she 23 tells us at the beginning of Phase III that she is going to 24 go back and use them. 25 MS. CAHILL: I think we will -- all it is a matter of 0448 01 just being safe, we are going to have to reincorporate all 02 of them every time. I think when something is admitted, all 03 the parties have had it. They have all read it. It's been 04 admitted. You shouldn't have to do something to rely on it 05 later. 06 MR. ALADJEM: Mr. Caffrey, just to respond to Ms. 07 Cahill. The distinction that Mr. Caffrey drew, I think, is 08 critical; that is, the distinction between a case in chief 09 and reference as part of the rest of your case. If Ms. 10 Cahill wants to use an exhibit from Phase I in Phase III, I 11 don't have any objection, as long as I know that for Exhibit 12 Number 2, which is used in Phase I, it is going to be part 13 of her case in chief in Phase III. Then I can prepare to 14 cross-examine a witness on that exhibit. That is, I think, 15 all Mr. Caffrey was saying. 16 C.O. CAFFREY: That is what I was attempting to convey. 17 Is that a problem, Ms. Cahill? 18 MS. CAHILL: I tend to think it is. I think we are 19 just going to be reincorporating things like crazy. 20 MS. GOLDSMITH: I think it further complicates it, if I 21 might -- 22 C.O. CAFFREY: Wait a minute. 23 MEMBER DEL PIERO: Nice to see you, Janet. 24 MS. GOLDSMITH: If I am putting together my case in 25 chief, and I am going to rely on documents in the exhibits 0449 01 listed by the State Board staff, do I have to tell you in 02 advance and incorporate it in my exhibit list, every 03 document that I am going to touch upon or rely upon that 04 either the State Board has in its 50 pages or another party 05 has introduced? Because that is a whole new set of 06 requirements, and we need to know that ahead of time. 07 C.O. CAFFREY: Ms. Leidigh has a suggestion. Let's 08 hear it. 09 MS. LEIDIGH: Normally, when parties prepare their case 10 in chief for any particular phase, they have written 11 testimony for their witnesses. And in the written testimony 12 the parties include the citations to the exhibits that they 13 are relying on. If those are already in the record, they 14 can cite them just the same as those that they are going to 15 offer in the record. I think it will become clear when we 16 read the parties' cases in chief if they are going to be 17 relying on a particular exhibit that was already introduced 18 and accepted into the record. 19 MS. GOLDSMITH: That would be true if we were always 20 incorporating it through the testimony of other parties. 21 But if we are making a legal argument that will not be 22 submitted as written testimony, but a legal argument relying 23 upon the facts in a document that will not be apparent. 24 C.O. CAFFREY: That is not part of the case in chief. 25 There is no need to make those citations. We were just 0450 01 talking about cases in chief. 02 MS. GOLDSMITH: For cross-examination? 03 C.O. CAFFREY: Right. We are just talking about cases 04 in chief. So the people know what is going to be 05 presented. I think Ms. Leidigh may be offering the 06 solution. You are going to be making those references in 07 your exhibits for your cases in chief. 08 Is that not correct? So you should, and I think, that 09 should work for Ms. Cahill if I understood it correctly. If 10 she is going to be referencing in her cases in chief, 11 whether it is one or various, different documents, it 12 doesn't make any difference what the citation or what the 13 number we have used to identify. 14 MS. CAHILL: Are we defining case in chief simply to 15 mean -- 16 C.O. CAFFREY: Direct evidence. 17 MS. CAHILL: -- witnesses as opposed to any other kind 18 of legal argument that you -- 19 C.O. CAFFREY: Yes. I am using the term "case in 20 chief" as direct testimony. 21 MS. CAHILL: Then I probably don't have a problem. 22 There will be other exhibits that you may want in, so you 23 can make legal argument from them that will not becoming in 24 through a witness. 25 MR. BIRMINGHAM: I have a question. Unless -- 0451 01 MEMBER DEL PIERO: Another one? 02 MS. LEIDIGH: You can still cite it. 03 MR. BIRMINGHAM: Unless an exhibit, the foundation for 04 an exhibit, is laid by a witness or unless a party is going 05 to ask during that party's case in chief that the Board take 06 judicial notice of an exhibit, how is it possible to get it 07 into the record? 08 MS. CAHILL: The same way the Board staff put in pages 09 and pages of exhibits. 10 MR. JACKSON: There are thousands of pages that are 11 already in evidence in the 182 documents. And my question 12 is -- 13 C.O. CAFFREY: Wait a minute. I am still dealing with 14 his question. 15 Ms. Leidigh. 16 MS. LEIDIGH: I think, generally, there are documents 17 that are officially noticeable that are received in the 18 record. 19 C.O. CAFFREY: Excuse me, I am unable to hear Ms. 20 Leidigh. 21 MS. LEIDIGH: I think, generally, there are a number of 22 documents that are received in the record that are 23 officially noticeable and are received that way or else they 24 are hearsay. If you are writing a brief to make your legal 25 arguments, those documents can be cited in your brief, and I 0452 01 think the way you are able to refer to them. 02 But that is different from what we were talking about 03 in preparing your written testimony for your case in chief 04 where you are presenting evidence. And I think what we are 05 really trying to get at is you don't have to present the 06 same piece of evidence and ask for it to be admitted over 07 and over and over again. It only needs to be brought into 08 the record one time. And once it is there you can cite it. 09 You can argue about it. You can use it to make your points 10 in your briefs. 11 C.O. CAFFREY: Mr. Stubchaer. 12 C.O. STUBCHAER: The only thing about that last comment 13 is that doesn't alert the other parties as to what to 14 prepare to. That was Mr. Aladjem's point. I don't see what 15 harm it does to list it, reference it on the list of 16 exhibits for a given phase. 17 MS. WHITNEY: We haven't been requiring separate lists 18 for each phase. It's a continuous list. 19 C.O. STUBCHAER: I know it is a continuous list. 20 MS. WHITNEY: It would help staff significantly if 21 people could send cover letters, however, and indicate 22 which phases their evidence is for, because we are finding 23 it difficult and I know some of the parties are finding it 24 difficult to discern -- 25 C.O. STUBCHAER: As long as there is some way to notice 0453 01 the -- 02 MS. WHITNEY: -- which phase this packet is coming in 03 for. We have been guessing based on the date we receive 04 it. That is not always a good way to guess. 05 C.O. CAFFREY: Ms. Leidigh, is this something that 06 would help if we got out some instructions on in a 07 relatively very near future? 08 MS. LEIDIGH: I think so. 09 C.O. CAFFREY: I apologize for the confusion. We will 10 get some instructions out on this subject, hopefully, that 11 are clear in about a matter of just a few hours. 12 Leave it at that, and if you have questions, you have 13 telephones. There are a number of people who, I believe, 14 have questions. 15 Who was next? 16 Mr. Jackson, do you have something? 17 MR. JACKSON: Mine is what -- are the State Boards -- 18 you put into evidence, the staff put into evidence 184 19 documents, some of which are 50 or 60 pages long. What are 20 the -- or longer. What are the facilities for us to go 21 through that? How do we get access to the State Board 22 staff's exhibit? 23 C.O. CAFFREY: Ms. Leidigh, what arrangements have been 24 made? 25 MS. WHITNEY: I can address that. 0454 01 MS. LEIDIGH: Ms. Whitney is the one to answer that. 02 MS. WHITNEY: All those documents from our files, 03 first of all. Second of all, we've already started 04 preparing an administrative record for this hearing, 05 assuming that one of you distinguished gentlemen will sue us 06 at the end. We have pulled copies of all the documents 07 that we have in the exhibit list in the Bay-Delta library. 08 You should contact me and I will make arrangements. 09 MR. JACKSON: Okay. 10 C.O. CAFFREY: We had Mr. Sexton. 11 MR. SEXTON: I have a suggestion, Mr. Chairman. 12 C.O. CAFFREY: Yes, sir. 13 MR. SEXTON: The Board has scheduled the hearing on the 14 motion regarding procedure for the first thing to be 15 conducted the next time we meet, on the 14th. 16 C.O. CAFFREY: No. It is scheduled as the first order 17 of business within Phase II. So that will depend on when we 18 are done with Phase I. I suspect we won't be done with 19 Phase I until close of business on Tuesday, the 14th, at the 20 earliest, and possibly later than that. 21 MR. SEXTON: What I was going to suggest, Mr. Chairman, 22 is that in connection with that motion the Board conduct a 23 workshop on procedure. Let's work out that motion, and 24 let's work out all these procedural questions. 25 I get the impression that everybody is too burned-out 0455 01 to discuss it, apparently, today. 02 C.O. CAFFREY: We will try something in writing and, if 03 that becomes necessary, we will certainly consider it. 04 Mr. Porgens, do you have something? 05 MR. PORGENS: First of all, I am getting confused -- 06 THE COURT REPORTER: Mr. Porgens, you have to come to 07 the microphone, please, for me. 08 MR. PORGENS: Patrick Porgens, Porgens and Associates. 09 I have to be -- I am a very honest person, and I have 10 to tell you, Mr. Chairperson, I am confused. Unlike most of 11 the attorneys, they spend a lot of time dotting I's and 12 crossing T's, which I know there is a purpose for that. 13 In my situation, I don't even know what phase -- I am 14 getting phased out on phases. Some man said back there, a 15 gentleman said that this thing isn't ready for prime time. 16 C.O. CAFFREY: I can assure you, Mr. Porgens, there are 17 people in this room that are expert on phasing because they 18 have made motions and they are briefing us. 19 Let me suggest that you wait diligently for the 20 document that Ms. Leidigh is going to produce with regard to 21 how you handle your exhibits, and then there is also going 22 to be a hearing on Mr. O'Laughlin's motion, which might also 23 reveal some interesting information on procedure, which 24 might help clear the matter up for you. 25 MR. PORGENS: I do appreciate that because we talked 0456 01 about it the other day. I don't know if I was in Phase I, 02 VI, VII. 03 C.O. CAFFREY: We are in Phase I. 04 MR. PORGENS: I didn't know if I was going to be up on 05 Phase I, so I talked with Ms. Leidigh. 06 C.O. CAFFREY: I believe Ms. Leidigh spoke with you and 07 what phase you should appear in. 08 MR. PORGENS: Thank you. The last thing is that I 09 appreciate the fact that the record is available. I have 10 most of the record you have listed in your exhibits, but 11 hope there isn't a rush for information because, you know, 12 the weekend is coming up. I know most of these people work 13 on July 4th. 14 Thank you. 15 C.O. CAFFREY: Thank you for your enlightenment, Mr. 16 Porgens. 17 Ms. Goldsmith. 18 MS. GOLDSMITH: I will be very brief. Not everyone in 19 this room is going to stay through the entire Phase I. And 20 there is -- 21 C.O. CAFFREY: Mr. Del Piero raised his hand also. 22 Truly, he is going to Scotland, as a matter of fact. We 23 send him all kinds of places. 24 MS. GOLDSMITH: It's difficult to not be in this room 25 and to get all the information that really is pertinent to a 0457 01 lot of the entire proceedings, such as when are things going 02 to be heard. And I would suggest that you figure out a way 03 to set a time specific for motions, even if it is in other 04 phases, so you can get the word out and people can be there 05 if they want to participate, as I do. 06 The other thing that came up earlier and is a matter I 07 would like clarified is whether or not further notices of 08 appearance or request for filing of late notices of 09 appearance will have to be by motion and have a date set, 10 and if so, how that works. Could be by letter, notice to 11 everybody. 12 C.O. CAFFREY: I think -- let me just speak generally. 13 Maybe Ms. Leidigh wants to say something. I think these 14 last couple of days have been, while somewhat frustrating 15 for some of us because we are forging new ground about 16 phasing, it has also been somewhat instructive. 17 I think based on a lot of your very pertinent 18 questions, motions and objections and occasionally a 19 supportive statement, we will be able to come up with a 20 little bit better instructions in some of these areas. It 21 is something at least a little more definitive, it may not 22 make everybody happy, but it may, hopefully, be a little 23 more clear. 24 Do you want to add anything to that, Ms. Leidigh? 25 MS. LEIDIGH: There is a policy element to your 0458 01 question of -- I would say there is a policy element to your 02 question about notices of intent to appear that are brought 03 in late, and I want to talk to the Hearing Officers -- 04 C.O. CAFFREY: I can't hear you, Ms. Leidigh. I'm 05 sorry. 06 MS. LEIDIGH: What I was saying was there is a policy 07 question that is involved with the issue about handling of 08 late notices and intent to appear, as well as being an 09 administrative question. And I am going to talk to the Hear 10 Officers before I comment on it. 11 C.O. CAFFREY: We are going to spend a little more time 12 thinking this through because we hear, for instance, not to 13 pick on him, I have great respect for him, but Mr. Jackson 14 is concerned about workload. But sometimes a greater 15 workload is related to a more definitive process and that 16 people understand. So we have to do a little bit better job 17 of figuring out how we are going to proceed further on a lot 18 of these questions that you raised and get this information 19 back to you. 20 We will start out by doing our best job in writing, and 21 it could be that maybe we do have to talke a time-out to 22 hold a workshop and have some open discussions as Mr. Sexton 23 suggested. I'd be willing to do that if it is called for. 24 I want to try the other alternatives first. 25 MS. GOLDSMITH: I would encourage you to make ample use 0459 01 of your very wonderful web site to keep people updated on 02 where we are in the proceedings and when things are expected 03 to come up. 04 MR. NOMELLINI: We want it in writing. I know it is 05 there. I have seen it. 06 C.O. CAFFREY: You need a computer, Mr. Nomellini. 07 Thank you, Ms. Goldsmith. 08 Anybody else before we adjourn for today? 09 We will be back in the Board's hearing room at 9:00 10 a.m. on July 14th to continue with Phase I. 11 Thank you. 12 (Hearing adjourned at 3:10 p.m.) 13 ---oOo--- 14 15 16 17 18 19 20 21 22 23 24 25 0460 01 REPORTER'S CERTIFICATE 02 03 04 STATE OF CALIFORNIA ) 04 ) ss. 05 COUNTY OF SACRAMENTO ) 05 06 06 07 08 I, ESTHER F. WIATRE, certify that I was the 09 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 265 through 14 459 herein constitute a complete, true and correct record of 15 the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 9th day of July 1998. 19 20 21 22 22 23 ______________________________ 23 ESTHER F. WIATRE 24 CSR NO. 1564 24 25