STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, JULY 14, 1998 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JOHN CAFFREY, CO-HEARING OFFICER JAMES STUBCHAER, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 JOHN W. BROWN 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer 9 VICTORIA A. WHITNEY - Senior Engineer 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel 12 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 462 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 55 Shaver Street, Suite 330 21 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 1201 California Street, Suite 1303 24 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 463 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 464 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 465 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 466 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 467 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 468 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 469 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 470 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 471 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 472 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 473 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 474 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: CHARLES H. WILLARD 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 475 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 478 6 AFTERNOON SESSION 594 7 END OF PROCEEDINGS 650 8 DIRECT TESTIMONY: 9 SOUTH DELTA WATER AGENCY 507 10 REDIRECT EXAMINATION: 11 SOUTH DELTA WATER AGENCY 502 12 13 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY: 14 OAKDALE IRRIGATION DISTRICT 484 CENTRAL DELTA WATER AGENCY 533 15 SAN JOAQUIN RIVER GROUP AUTHORITY 546 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 554 16 TUOLUMNE UTILITIES DISTRICT 557 17 REDIRECT EXAMINATION: 18 SOUTH DELTA WATER AGENCY 561 19 CASE IN CHIEF: 20 SAN LUIS DELTA-MENDOTA WATER AUTHORITY WESTLANDS WATER DISTRICT 571 21 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 476 1 INDEX (Cont'd.) 2 3 CROSS-EXAMINATION OF SAN LUIS DELTA-MENDOTA WATER AUTHORITY and WESTLANDS WATER DISTRICT: 4 CENTRAL DELTA WATER AGENCY 574 5 SOUTH DELTA WATER AGENCY 580 6 OPENING STATEMENT: 7 NATURAL HERITAGE INSTITUTE 594 8 REBUTTAL TESTIMONY: 9 WESTLANDS WATER DISTRICT 607 10 CROSS-EXAMINATION: 11 CENTRAL DELTA WATER AGENCY 613 NATURAL RESOURCES DEFENSE COUNCIL 619 12 REBUTTAL TESTIMONY: 13 UNITED STATES DEPARTMENT OF THE INTERIOR 628 14 CENTRAL DELTA WATER AGENCY 637 SOUTH DELTA WATER AGENCY 638 15 16 ---oOo--- 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 477 1 TUESDAY, JULY 14, 1998, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 COHEARING OFFICER CAFFREY: Good morning. We are 5 back and working on Phase I. You all know who we are, we 6 know who you are. The introductions are on the record, so 7 we'll dispense with all of that. We're going to begin this 8 morning where we left off with the continuation of the case 9 in chief by Mr. Herrick. 10 But before we do that, I do want to say a few 11 words about where we left off in the last proceeding. 12 There were a number of questions that came up with regard 13 to procedure. We have attempted to deal with those in a 14 letter signed by Mr. Pettit. Hopefully you have all 15 received that, if not, you will receive it shortly. 16 I want to reiterate that we are embarking on a new 17 process here in the sense that we are dealing with the 18 acceptance of the taking of evidence in phases. Even 19 though it's all in one hearing record, it raises -- or, 20 perhaps, because it's all in one hearing record it raises 21 some interesting procedural questions. 22 We started this process thinking that we dealt 23 with a number of them, but as a number of your very good 24 questions have demonstrated, there are always things to be 25 looked at again, reconsidered, or dealt with in a clearer, CAPITOL REPORTERS (916) 923-5447 478 1 finer light. So many of your questions have been helpful 2 in that way. But one of the things that has bothered me a 3 little bit is that as these questions come up orally, many 4 of the parties are not here and so they don't get the 5 benefit, if you will, of the discussion and the ruling. 6 And in some ways that may condemn us to go through these 7 questions over and over and over again in each phase, or in 8 an number of the seceding phases. 9 So what I think we would like to do -- and by the 10 way, not in any way to stifle you from standing and raising 11 a question if you think it's pertinent to what we're 12 discussing at the moment, but it would be very helpful, so 13 I'm going to instruct the attorneys when you do have 14 questions about the procedure, please, submit them in 15 writing. Again, that doesn't mean that you can't stand up 16 and tell us what the question is and that you are going to 17 submit them in writing, but I'm going to remind you to 18 submit them in writing and then we will answer them in 19 writing. 20 Now, there could be situations where you ask us a 21 question and we've already dealt with it in the 22 instructions; and if it's recognizable in that form we'll 23 deal with it then and there. But if it's something that 24 raises a new twist, or an angle, or something that we 25 haven't thought about at all, we will ask you to submit it CAPITOL REPORTERS (916) 923-5447 479 1 in writing and then we will respond to all the parties in 2 writing. That way, hopefully, all will get the benefit of 3 both the question and the answer. 4 We also encourage you to read more than once the 5 documentation we're producing here on the answers and the 6 series of letters that we have produced since, I guess, 7 May. This is a complicated proceeding. We acknowledge 8 that and, certainly, you acknowledge it. And so it -- I 9 know I have to read them time and time again. And so I 10 encourage you all to do that as well. So that's how we 11 will proceed in the future with technical questions on the 12 process. 13 And we certainly commend many of you, such as 14 Ms. Zolezzi, I don't know if she's here today, some of you 15 have already followed the process of putting your questions 16 in writing and that has been helpful to the Board, because 17 we have responded in writing to all the parties. So with 18 that, then, are there any questions? 19 MR. GODWIN: Excuse me, Mr. Caffrey? 20 C.O. CAFFREY: Yes, sir. 21 MR. GODWIN: I'm Arthur Godwin. I'm going to also 22 ask that you request the parties if they submit questions 23 in writing to also copy all the parties on the service 24 list. 25 C.O. CAFFREY: Thank you, Mr. Godwin, that's a good CAPITOL REPORTERS (916) 923-5447 480 1 point. In Ms. Leidigh's June 11th letter she noted that 2 some of the questions that we were answering that we had 3 received in writing, those letters to us had not been 4 copied to the other parties. So we would ask you when you 5 write your questions to us, please, provide the other 6 parties with copies. 7 Ms. Leidigh, did you have some comment? 8 MS. LEIDIGH: No. 9 C.O. CAFFREY: Thank you, Mr. Godwin. Then if there 10 are -- I would note also that we are joined at the dais by 11 Mr. Attwater and Mr. Pettit, as they have been joining us 12 across the street. That is very helpful to the Board. 13 It's also a practical matter just because of the limited 14 space that we have here. We apologize in advance for the 15 size of this room, the limited size of this room. And we 16 blame it on the legislative analysts of years ago. Some of 17 us who have been around 20 or 30 years remember the battle 18 over this building and how large these rooms should be. 19 Some of us had a little more foresight than others, but 20 those with less foresight won out. That's why we have like 21 a 70-person capacity here. 22 If it gets a little too hot we'll try to take some 23 breaks throughout the day, but hopefully the 24 air-conditioning will continue. We are trying to get 25 bigger rooms for the days that we anticipate a larger CAPITOL REPORTERS (916) 923-5447 481 1 attendance. We, certainly, anticipate a large attendance 2 for Phase II, especially at the outset when we hear the 3 arguments on Mr. O'Laughlin's motion. We don't know when 4 we'll get to that, but hopefully we'll get to that tomorrow 5 or the next day. So we have gone ahead and scheduled 6 ourselves for the large room across the street in the 7 Resources' auditorium for the rest of this week after 8 today, for Wednesday and Thursday. Then we shall see and 9 we will keep you posted after that as to where we'll be 10 meeting. The default room is always this room. So 11 hopefully the weather will cooperate and it wouldn't be too 12 bad for the days that we are here. 13 All right. Then with that I believe it is time to 14 proceed, try to complete Mr. Herrick's case in chief. As I 15 recall, please, correct me, Mr. Herrick, we were at the 16 point where you were going to call Mr. Ploss for direct. 17 Is that correct? 18 MR. HERRICK: I believe -- John Herrick for South 19 Delta. I believe, Chairman Caffrey, that we are still in 20 the middle of cross-examination being conducted by 21 Mr. O'Laughlin. 22 C.O. CAFFREY: I'm sorry? 23 MR. HERRICK: I believe we're still in 24 cross-examination of Alex Hildebrand by Mr. O'Laughlin. 25 C.O. CAFFREY: Thank you. I had lost track of that. CAPITOL REPORTERS (916) 923-5447 482 1 Mr. O'Laughlin, do you wish to come forward and complete 2 your cross-examination of -- 3 MR. O'LAUGHLIN: Thank you, Mr. Caffrey. 4 C.O. CAFFREY: And, then, we will go to the point 5 where I was. 6 MR. O'LAUGHLIN: If I might ask: Can I appear in 7 front of you today without my jacket on, it's somewhat warm 8 in here and I don't want to wear a jacket all day? 9 C.O. CAFFREY: Absolutely not. 10 MR. O'LAUGHLIN: And that's no disrespect to the 11 Board. 12 C.O. CAFFREY: Thank you for reminding, 13 Mr. O'Laughlin. I was going to suggest to all to try to be 14 as comfortable as possible. It's already a little warm in 15 here and it's still early. 16 MR. HILDEBRAND: Does that apply to me, too? 17 C.O. CAFFREY: Absolutely, Mr. Hildebrand. That 18 applies to everybody in the room. Please make yourselves 19 comfortable. 20 MR. HILDEBRAND: Especially since Mr. O'Laughlin is 21 rather long winded that I get to sit down during this. 22 C.O. CAFFREY: Mr. O'Laughlin, if memory serves, I 23 believe you said you may have as much as another hour yet 24 of questions. Is that correct? 25 MR. O'LAUGHLIN: I hope to -- since I had time over CAPITOL REPORTERS (916) 923-5447 483 1 the weekend to prepare, I hope to keep it shorter than 2 that, Mr. Chairman. 3 C.O. CAFFREY: All right. Sir, please proceed. 4 ---oOo--- 5 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 6 BY OAKDALE IRRIGATION DISTRICT 7 BY TIM O'LAUGHLIN 8 MR. O'LAUGHLIN: Mr. Hildebrand, turning to 9 exhibit -- South Delta Water Agency Exhibit Number 22, in 10 your testimony last week you stated that the DWR and USBR 11 have agreed to the channel depletion number set forth 12 there. Do you have any correspondence memo, or agreement 13 from either DWR or USBR agreeing to the channel depletion 14 numbers set forth in SDWA 22? 15 MR. HILDEBRAND: Well, as I explained before, the 16 figures for July are -- were part of an agreement reached 17 among the Bureau and DWR and South Delta in connection with 18 the termination of the capacity required and the tidal 19 barriers in order to take care of our depletion. Then the 20 DWR has extensive data on the overall channel depletion for 21 the Delta in other months of the year. And the other 22 months of the year for the South Delta were ratioed in the 23 same manner. 24 Now, so far as those numbers for the other months, 25 I don't recall that we have any explicit document that said CAPITOL REPORTERS (916) 923-5447 484 1 they agreed to it, but it came out of the work of the DWR 2 and the things we did that we used this in the past and 3 have never taken any exception to it. 4 MR. O'LAUGHLIN: So the answer to that question would 5 be: No, you have no official documentation from either DWR 6 or the United States Bureau of Reclamation relating to the 7 channel depletion numbers set forth in SDWA Number 22? 8 MR. HILDEBRAND: No, that's not correct. We do have 9 documentation for July. 10 MR. O'LAUGHLIN: Okay. Other than July, do you have 11 any documentation from either the DWR or the USBR 12 pertaining to the channel depletion numbers? 13 MR. HILDEBRAND: Only in the manner that I just 14 described. 15 MR. O'LAUGHLIN: Okay. Do you have any agreement 16 from any upstream water right holder as to the channel 17 depletion numbers set forth in SDWA Number 22? 18 MR. HILDEBRAND: Well, the Bureau is involved in it, 19 yes. 20 MR. O'LAUGHLIN: Okay. Other than the United States 21 Bureau of Reclamation, do you have any other upstream water 22 holder in the San Joaquin River agreeing to the channel 23 depletion numbers set forth in SDWA Number 22? 24 MR. HILDEBRAND: No. 25 MR. O'LAUGHLIN: Turning to SDWA Exhibit Number 23 -- CAPITOL REPORTERS (916) 923-5447 485 1 MR. HILDEBRAND: Just a second. What is that? 2 MR. O'LAUGHLIN: This one. Don't read my notes. 3 MR. HILDEBRAND: You think they'd be interesting? 4 MR. O'LAUGHLIN: No, probably not. Turning to SDWA 5 Number 23, do you know what model was used by the U.S. 6 Bureau of Reclamation to run those numbers? 7 MR. HILDEBRAND: I assume they used SANJASM, but I 8 cannot say definitely. 9 MR. O'LAUGHLIN: All right. Are you an expert in 10 regards to modeling, Mr. Hildebrand? 11 MR. HILDEBRAND: I'm not an expert at modeling, but I 12 have a great deal of experience in what the capability of 13 what the various models are, what their applicability is to 14 given situations, and the ability of those models to 15 correct the -- depict what actually happens. 16 MR. O'LAUGHLIN: Okay. Did you participate with the 17 United States Bureau of Reclamation in setting up the 18 assumptions for the model runs that are set forth in SDWA 19 Number 23? 20 MR. HILDEBRAND: Only insofar as I was a participant 21 in the Stanislaus stakeholders' meetings and those inputs 22 were discussed in those meetings. 23 MR. O'LAUGHLIN: Okay. Do you have any basis upon 24 which to disagree with the model results set forth in SDWA 25 Exhibit Number 23? CAPITOL REPORTERS (916) 923-5447 486 1 MR. HILDEBRAND: If you're asking me whether I think 2 that the model correctly modeled the inputs that were used, 3 I have no basis for assuming that it did not do so 4 correctly. However, as we well know we disagree with the 5 inputs that were used. 6 MR. O'LAUGHLIN: Okay. What inputs specifically do 7 you agree -- disagree with in SDWA Exhibit Number 23 and 8 the modeling that was done? 9 MR. HILDEBRAND: The -- we disagree with the caps on 10 the amount of water release that would be made to meet 11 water quality, some of them make sense and some of them 12 don't. The use of the 250,000 acre foot released cap for 13 wet years is a pure phony. In wet years we don't usually 14 need any water release. And so the thing gives the 15 impression that they're willing to release a lot of water. 16 Where, in fact, they're only going to release up to -- up 17 to these amounts and only to the extent that it's needed. 18 And in the wet years we don't need that. And 19 they've adamantly refused to carry over any of it to the 20 drier years. And as I explained before, the biggest need 21 for dilution water out of New Melones to meet the Vernalis 22 standards does not occur in either a wet year or a critical 23 year. It's normally below normal years, typically. And 24 their allowance for that kind of a year is totally 25 inadequate. CAPITOL REPORTERS (916) 923-5447 487 1 MR. O'LAUGHLIN: Okay. Other than that assumption 2 that was made for the modeling, what other assumptions do 3 you disagree with in SDWA Exhibit Number 23? 4 MR. HILDEBRAND: Right offhand I don't come up with 5 other things. Our basic issue is that it isn't modeling 6 the real world. 7 MR. O'LAUGHLIN: Okay. Can you -- did South Delta 8 Water Agency in the past hirer an expert by the name of 9 Dr. Orlob? 10 MR. HILDEBRAND: Yes. 11 MR. O'LAUGHLIN: Can you explain to me what 12 Dr. Orlob's qualifications are? 13 MR. HILDEBRAND: Orlob is a professor at UC Davis. 14 He was actually the instructor for many of the DWR models, 15 modelers that we have today. He's recognized as a 16 particularly able and experienced modeler. 17 MR. O'LAUGHLIN: Has South Delta Water Agency 18 explored -- excuse me, hired Dr. Orlob in the past? 19 MR. HILDEBRAND: Yes. 20 MR. O'LAUGHLIN: Okay. Did South Delta Water Agency 21 ask Dr. Orlob to review South Delta Water Agency's Exhibit 22 Number 23? 23 MR. HILDEBRAND: That's this one that we're looking 24 at here? 25 MR. O'LAUGHLIN: That is correct. CAPITOL REPORTERS (916) 923-5447 488 1 MR. HILDEBRAND: I don't specifically recall if we 2 specifically asked him to address that. 3 MR. O'LAUGHLIN: Okay. Is there any documentation 4 that you're aware of that South Delta Water Agency has, 5 whether a written report, memo, or otherwise, that 6 Dr. Orlob did critiquing South Delta Water Agency Exhibit 7 Number 23? 8 MR. HILDEBRAND: We had him make an independent mass 9 balance analysis which would relate to this. But I don't 10 know that it was specifically an analysis of this. We 11 didn't ask him to go through to see whether the SANJASM was 12 used correctly, or if these inputs were reasonable. 13 MR. O'LAUGHLIN: Okay. Have you asked Dr. Orlob to 14 run the SANJASM Model for the San Joaquin? 15 MR. HILDEBRAND: No. 16 MR. O'LAUGHLIN: Have you asked Dr. Orlob to run the 17 STANDMOD Model for the San Joaquin River in the Stanislaus 18 River? 19 MR. HILDEBRAND: We don't tell Dr. Orlob what model 20 would be best used to -- 21 MR. O'LAUGHLIN: No. I'm asking you: Have you asked 22 him to run either of those models? 23 MR. HILDEBRAND: We have not specifically asked him 24 to run any specific model for a specific test. 25 MR. O'LAUGHLIN: And that would include the DWRSIM CAPITOL REPORTERS (916) 923-5447 489 1 and PROSIM as well? 2 MR. HILDEBRAND: He has used DWRSIM, PROSIM in 3 connection with work he has done with us. 4 MR. O'LAUGHLIN: Okay. When was the last time in 5 your memory that Dr. Orlob used DWRSIM in doing that 6 analysis for South Delta Water Agency? 7 MR. HILDEBRAND: I don't think I can answer that 8 question. As I said, we rely on his capability and we 9 don't tell him what model would be best used to give a 10 result that we wish to obtain. 11 MR. O'LAUGHLIN: Has South Delta Water Agency ever 12 asked Dr. Orlob to participate in reviewing either the 13 assumptions or inputs into the SANJASM Model? 14 MR. HILDEBRAND: I don't know that we asked him that, 15 explicitly to do it. However, he has participated in 16 discussions among the modelers and with me about the 17 capabilities and propriety of using various models for 18 various purposes. 19 MR. O'LAUGHLIN: Has Dr. Orlob ever reviewed the 20 assumptions or the inputs for the STANDMOD Model? 21 MR. HILDEBRAND: Probably, but I can't say for sure. 22 MR. O'LAUGHLIN: Has Dr. Orlob ever prepared a report 23 for South Delta Water Agency critiquing any model being 24 used presently in the Bay-Delta proceedings? 25 MR. HILDEBRAND: Well, I guess that gets down to what CAPITOL REPORTERS (916) 923-5447 490 1 you mean, whether we asked him to do some specific 2 critique? 3 MR. O'LAUGHLIN: Yes, that is correct, whether you 4 have asked him to do a specific critique. 5 MR. HILDEBRAND: Well, for example, Dr. Orlob was one 6 of the modelers from working with the DWR models, the 7 Bureau modelers, and other modelers to examine the manner 8 in which we could model recirculation alternative. And 9 that involved more than one model in consideration of the 10 use of various models, none of which were totally 11 satisfactory for the purpose. 12 MR. O'LAUGHLIN: So, in fact, South Delta Water 13 Agency doesn't agree that the SJ real model accurately 14 depicts the recirculation alternative; is that correct? 15 MR. HILDEBRAND: We think it does a pretty good job 16 of depicting the flow aspects. We feel that it did not 17 iterate the consequences of the recirculation in respect to 18 quality. And, therefore, came up with a number of -- 19 regarding a savings in New Melones' dilution requirements 20 to meet the Vernalis standard which is less than what would 21 actually occur. This was discussed, the model was unable 22 to handle that iteration, we all know that. We believe 23 it's one of those difficulties in using models, they're not 24 all capable of doing what you would like to do. You have 25 to look at the result and see if it's reasonable. CAPITOL REPORTERS (916) 923-5447 491 1 MR. O'LAUGHLIN: Okay. When you say we all believe 2 that, that's a belief that you have but it's not supported 3 by the data that's included within the model; is that 4 correct? 5 MR. HILDEBRAND: I'm not quite sure what you mean by 6 that. 7 MR. O'LAUGHLIN: Let me ask it another way. Has 8 South Delta Water Agency tried to implement its own model, 9 or other models to accurately depict the salinity in the 10 recirculation of SJRIO? 11 MR. HILDEBRAND: No. For us to develop our own model 12 would be extremely expensive and take a great deal of time. 13 And the SJRIO was adequate to illustrate the benefit of 14 recirculation even though it was somewhat inadequate in 15 determining the extent of the benefit in respect to quality 16 as distinguished from flow. 17 MR. O'LAUGHLIN: Okay. But that's your opinion on 18 quality and flow, correct, in the sense -- 19 MR. HILDEBRAND: It was not just mine, others in the 20 group that oversaw -- 21 MR. O'LAUGHLIN: Okay. Where is it in the South 22 Delta Water Agency's files, or documentation, or within the 23 testimony you presented here today any documentation 24 supporting your statement that the SJRIO does not 25 adequately depict water quality? CAPITOL REPORTERS (916) 923-5447 492 1 MR. HILDEBRAND: I don't know that this is in writing 2 anywhere, but it was discussed at length among the group of 3 modelers and myself who oversaw that, the modeling effort. 4 And Regional Board modelers, the DWR modelers, they all 5 acknowledged that this was a weakness of the modeling 6 effort that couldn't be overcome in the time available and 7 without a lot of effort and which didn't seem to be 8 essential to depicting the desirability of recirculation. 9 MR. O'LAUGHLIN: Let's turn to -- you submitted as 10 evidence exhibit -- South Delta Water Agency's Exhibit 11 Number 12. Can you show me within the official report of 12 the SJRIO studies your statement that the model doesn't 13 accurately depict the water quality component? 14 MR. HILDEBRAND: It's not in the report. 15 MR. O'LAUGHLIN: So what we're relying on here today 16 then is hearsay of other people in regards to what you 17 believe may be what the model is even though you're not an 18 expert in regard to modeling? 19 MR. HILDEBRAND: Well, I think I'm fairly expert 20 knowing what the capability of the model is, it's 21 distinguished from doing the model. 22 MR. O'LAUGHLIN: I want to turn your attention to the 23 SJRIO Model, SDWA Exhibit Number 12. Is it true and 24 correct to say that some 2,000 acre feet of water would be 25 stored up in New Melones that otherwise would not be there CAPITOL REPORTERS (916) 923-5447 493 1 for water quality due to the recirculation plan? 2 MR. HILDEBRAND: Without taking my time to go through 3 here, it's my recollection that that is an average of all 4 years and it doesn't represent the savings in the years 5 when the releases are a problem. I think that figure was 6 more like 10,000. And if the model had been capable of 7 iterating the reduction in load in river and consequent 8 delusion requirement for New Melones as a result of the 9 overall configuration, including the tidal barriers, that 10 figure would clearly be larger. I don't know how much 11 larger, but I would venture an opinion that it would be at 12 least twice as large. 13 MR. O'LAUGHLIN: But what's that opinion based on? 14 MR. HILDEBRAND: Just my general expertise in the 15 matter. 16 MR. O'LAUGHLIN: Your general belief; is that 17 correct? There's no supporting data for that, is there? 18 MR. HILDEBRAND: Well, we weren't able to model it if 19 that's what you mean. 20 MR. O'LAUGHLIN: Okay. And you have no supporting 21 data to support your belief; is that correct? 22 MR. HILDEBRAND: I don't have data, but I have some 23 basis of expert opinion for that. 24 MR. O'LAUGHLIN: Based on what data? Other than a 25 belief -- CAPITOL REPORTERS (916) 923-5447 494 1 MR. HILDEBRAND: Based -- based on the fact that the 2 model did not iterate the consequences of reducing the salt 3 load in the Delta-Mendota Canal by virtue of the overall 4 plan; and the fact that that reduction of salt load would 5 then reduce the amount of drainage salt load from the west 6 side service area into the river; and that in turn would 7 reduce the dilution requirement out of New Melones. So 8 there can be really no question about the direction of it. 9 One can argue about the probable magnitude since we were 10 unable to model it with the available models. 11 MR. O'LAUGHLIN: Okay. Well, let's get back to the 12 modeling results. On page nine it states on the document 13 (reading): 14 "This modeling study demonstrated that DMC 15 recirculation during the spring pulse flow period 16 results in slightly improved water quality at 17 Vernalis and, consequently, less releases required 18 from New Melones for meeting Vernalis salinity 19 objectives, parens, an average of 2,000 acre feet 20 less annually." 21 Do you disagree with that statement? 22 MR. HILDEBRAND: No. What that statement says is 23 that the modeling that was done depicted a 2,000-acre-foot 24 average release reduction. And that number is low for the 25 reasons that I mentioned. And it's also not entirely CAPITOL REPORTERS (916) 923-5447 495 1 meaningful, because that's averaged over a lot of years 2 when there was no problem. All the wet years are in there. 3 So the significant figure is how much it saved in years 4 when water quality releases are a problem. 5 MR. O'LAUGHLIN: Turning to Table 9A and 9C. 6 MR. HILDEBRAND: In that report? 7 MR. O'LAUGHLIN: Yes, South Delta Water Agency 8 Exhibit Number 12. Isn't it true that when comparing the 9 base case with DMC recirculation, that's Table 9A compared 10 to Table 9C, that water quality for June, July, and August 11 remains the same? 12 MR. HILDEBRAND: Can you be more specific on what 13 you're looking at here? 14 MR. O'LAUGHLIN: Yeah. The totals for the time 15 period on 9A and 9C show -- 9A shows that the -- 16 MR. HILDEBRAND: Where does this say what the quality 17 is? This talks about the release -- 18 MR. O'LAUGHLIN: That's that the additional releases 19 for New Melones remain exactly the same for the months of 20 June, July, and August. 21 MR. HILDEBRAND: Well, the sums are different. In 22 any event, the interpretation of this to quality I think 23 would have to go back to the other portions of the report 24 which came up with the results that we just discussed. 25 MR. O'LAUGHLIN: I want to take you back to -- do you CAPITOL REPORTERS (916) 923-5447 496 1 remember when I took your deposition? I want to talk you 2 about modeling for just a little bit more. In response to 3 a question that I gave you on page -- 4 C.O. CAFFREY: Excuse me, Mr. O'Laughlin, Mr. Brown 5 would like the last question repeated. 6 MEMBER BROWN: I'm trying to follow you here on your 7 question and you kind of lost me. 8 MR. O'LAUGHLIN: Right. It's not a quality question, 9 sorry. I was reading from the notes above. It's the 10 amounts of water that would be released from New Melones 11 during the June, July, and August periods would be the same 12 either under the base case or under the recirculation case. 13 MEMBER BROWN: Quality has -- there's no issue of 14 quality on these tables? 15 MR. O'LAUGHLIN: That's correct. 16 MEMBER BROWN: Okay. Thank you, Mr. Chairman. 17 MR. HERRICK: Mr. Chairman, before we proceed I would 18 just like to object to the upcoming question. 19 Mr. Hildebrand's deposition was taken, he's still within 20 his 30 days to review the depo. He's doing that, or has 21 done that, but he hasn't submitted his changes for typos, 22 omissions, misspelled words. He doesn't mind answering, 23 but I don't think the document can be used to somehow 24 attack what he says. It hasn't been finalized. 25 MR. O'LAUGHLIN: I'm going to attack him as to what CAPITOL REPORTERS (916) 923-5447 497 1 it says. I'm just going to ask him if he still agrees with 2 the statement that he made there. 3 C.O. CAFFREY: Let's hear the question and then -- 4 MR. HERRICK: I do want to make the point that the 5 document has not been finely produced. It's a draft that 6 he's still going over to see whether or not they accurately 7 recorded what he said. 8 MR. O'LAUGHLIN: I don't disagree with that 9 objection -- 10 C.O. CAFFREY: Just a minute, Mr. O'Laughlin, I was 11 distracted up here. You described it as the upcoming 12 question, so apparently he's already read it into the 13 record before we interrupted him and asked him to repeat 14 the previous question. Is that what happened? 15 MR. HERRICK: Yeah, he began the question with, "Do 16 you remember your?" I don't think he finished it. 17 C.O. CAFFREY: All right. 18 MR. O'LAUGHLIN: I don't disagree with that 19 objection. I'll wait until the deposition has been 20 finalized and then we'll lodge that deposition with the 21 Board and then we'll use it for impeachment purposes 22 against Mr. Hildebrand. 23 MR. NOMELLINI: Send us all a copy. 24 C.O. CAFFREY: I'm sorry, what was the comment from 25 the audience? CAPITOL REPORTERS (916) 923-5447 498 1 MR. O'LAUGHLIN: If I lodge the document with the 2 State Water Resources Control Board, as with any other 3 piece of evidence that I will use in this case that will, 4 of course, be noted in our exhibit list and will be sent to 5 every party participating in this process. 6 C.O. CAFFREY: All right. Thank you, Mr. O'Laughlin. 7 MR. HILDEBRAND: That's 180 some pages I might add. 8 C.O. CAFFREY: It's not part of the Board's budget, 9 but it's somebody's budget. Mr. O'Laughlin, please. 10 MR. O'LAUGHLIN: Thank you, Mr. Caffrey. I want to 11 ask you some follow-up questions on New Melones. Is it 12 your understanding that the 1987 California Department of 13 Fish and Game agreement was entered into prior to Water 14 Right Order 95-06? 15 MR. HILDEBRAND: I believe that's right. 16 MR. O'LAUGHLIN: Okay. And that's the agreement 17 between the California Department of Fish and Game and the 18 United States Bureau of Reclamation that allows for 19 releases for fisheries of 98,300 acre feet up to 302,000 20 acre feet per year; is that correct? 21 MR. HILDEBRAND: That's correct. And that greatly 22 exceeds the original allowance in the allocation of waters 23 when the determination was made by the Department of the 24 Interior for the operation of New Melones. 25 MR. O'LAUGHLIN: Okay. Do you know when the original CAPITOL REPORTERS (916) 923-5447 499 1 allocations were made by the Department for New Melones on 2 what year hydrology those allocations were made? 3 MR. HILDEBRAND: The original one allowed 65,000, I 4 believe, for fish releases in a critical year. And 98,300 5 in other years. 6 MR. O'LAUGHLIN: Let me rephrase that question. 7 Isn't it true that the allocations made were based on the 8 water year of hydrology 1928 through 1938 for the New 9 Melones Project? 10 MR. HILDEBRAND: I don't know about that, because 11 that period would have been that dry period and would 12 correspond, perhaps, to the 65,000 release; but the 98,300 13 presumably was for all other years. 14 MR. O'LAUGHLIN: Okay. Have you gone back and 15 reviewed the hydrology that led to the implementation of 16 New Melones and compared the 1928 through 1938 hydrology 17 with the 1987 through 1992 hydrology for the Stanislaus 18 River? 19 MR. HILDEBRAND: No. 20 MR. O'LAUGHLIN: Isn't it true and correct that the 21 1988 agreement between Oakdale and South San Joaquin is in 22 agreement subsequent to an agreement entered into in 1972 23 between Oakdale and South San Joaquin and the United States 24 Bureau of Reclamation for the New Melones Project? 25 MR. HILDEBRAND: Give that date again, please. CAPITOL REPORTERS (916) 923-5447 500 1 MR. O'LAUGHLIN: 1988 and 1972. 2 MR. HILDEBRAND: Well, 1988 came after 1972, if 3 that's what you're asking me. 4 MR. O'LAUGHLIN: Okay. Do you know how the 5 stipulation and agreement between Oakdale/South San Joaquin 6 Irrigation District and the United States Bureau of 7 Reclamation changed from the original agreement and the 8 subsequent agreement? 9 MR. HILDEBRAND: Yes, perhaps, not in complete 10 detail, but the deal was basically that the districts gave 11 up some right to the use of water in some years in return 12 for the right to carryover water from years when they 13 didn't need it all to other years to the extent of I think 14 200,000 acre feet which, however, would be lost if there 15 was a spill. This practice didn't work out very well 16 because during the drought, that paper water was still 17 there and it wasn't in the reservoir. 18 MR. O'LAUGHLIN: And, in fact, in 1991/'92 Oakdale 19 and South San Joaquin had approximately 123,000 acre feet 20 in their conservation account and New Melones had 21 approximately 64,000 acre feet in storage; is that correct? 22 MR. HILDEBRAND: Those numbers I know to be 23 approximately correct. I couldn't testify to them exactly. 24 MR. O'LAUGHLIN: I have no further questions for 25 Mr. Hildebrand at this time. CAPITOL REPORTERS (916) 923-5447 501 1 C.O. CAFFREY: Thank you, gentlemen. That completes 2 the cross-examination of this witness. Mr. Herrick, do you 3 wish to now bring on Mr. Ploss? 4 MR. HERRICK: I'd like a couple redirect questions if 5 you don't mind, Mr. Chairman. 6 C.O. CAFFREY: Well, I was going to do that at the 7 end of all the panels. All right. Let's do it now then. 8 MR. HERRICK: Very brief. 9 C.O. CAFFREY: Okay. Go ahead. 10 ---oOo--- 11 REDIRECT EXAMINATION SOUTH DELTA WATER AGENCY 12 BY JOHN HERRICK 13 MR. HERRICK: Mr. Hildebrand, earlier in the 14 cross-examination you were asked about the New Melones 15 interim operations plan. Is there any -- do you have any 16 information as to how any deficit would be handled in any 17 water year when an insufficient amount was budgeted for 18 water quality? 19 MR. HILDEBRAND: Well, the interim plan says they'll 20 violate the standard when that happens. 21 MR. HERRICK: Are there different ways that the 22 limited amount of water could be used in that year that a 23 violation was expected? 24 MR. HILDEBRAND: Oh, yes. And that gets back, 25 perhaps, in part to the question that Mr. O'Laughlin asked CAPITOL REPORTERS (916) 923-5447 502 1 about June, July, and August. What you have available to 2 release then depends on what you did earlier in the year. 3 So you have to really look at it on an annual basis to see 4 whether there's going to be a deficit in the water 5 available to meet the standard. How you propose to release 6 it can alter the time at which the violation occurs. 7 MR. HERRICK: During the recent droughts, 8 Mr. Hildebrand, are you aware of any upstream dam operator 9 who actually passed through any natural flow for downstream 10 benefit? 11 MR. HILDEBRAND: Nope. 12 MR. HERRICK: Again, with regard to the interim 13 operation plan of New Melones, could you clarify on what 14 you base your opinion that 250,000 acre feet of water for 15 water quality is or is not needed in wet years? 16 MR. HILDEBRAND: Well, it's just an established fact 17 that in the years -- very wet years there's so much to lose 18 in the system, this year for example, that you don't need 19 any water quality release. So that all -- I wouldn't be 20 prepared to say you never have a need for any water quality 21 release in the wet year, depending on whether the 22 precipitation all took place very early in the season and 23 than later, or something of that sort. 24 Nevertheless, you typically do not need water 25 quality release in a wet year. And to say that they're CAPITOL REPORTERS (916) 923-5447 503 1 going to budget for 250,000 when you know you're not going 2 to need it and you know you're not going to allow it to be 3 carried over if it isn't needed, it's just window dressing, 4 it has no significance. It tries to make them look good 5 when they're not really doing anything. 6 MR. HERRICK: Mr. Hildebrand, you were asked on cross 7 as to what evidence exists when you discussed the 8 shortcomings of SJRIO with -- could you give us the names 9 of some of the modelers who participated in that process 10 who you believe would confirm your description of the 11 shortcomings of the modeling? 12 MR. HILDEBRAND: Well, the people who participated, 13 and I didn't hear any of them dissent when we discussed it, 14 there were the Bureau, Tom Boardman from Dan Nelson's 15 organization, Frances Chung from DWR, George Barnes was 16 involved in some of it, a representative is not always the 17 same from the Contra Costa Water District, Dr. Orlob and 18 myself, a representative from the Regional Board, JoAnne 19 Kipps who actually did the modeling. I think I may be 20 missing one or two there. 21 But this subject was discussed at length among 22 that group. Nobody could see a way to do it properly with 23 the model that was available, but I don't recall that 24 anybody suggested that the model wasn't sufficient in this 25 regard. CAPITOL REPORTERS (916) 923-5447 504 1 MR. HERRICK: I have no further questions. 2 C.O. CAFFREY: All right. Thank you. Do any of the 3 parties wish to recross-examine Mr. Hildebrand? All right. 4 Thank you, gentlemen. All right you may proceed, 5 Mr. Herrick, with your next witness. 6 MR. HERRICK: I'd like to call Mr. Lowell Ploss of 7 the Bureau of Reclamation. 8 C.O. CAFFREY: All right. 9 MR. HERRICK: I've had conversations with Counsel for 10 the Bureau this morning. He actually asked could Mr. Ploss 11 put on testimony in Phase I. We had a little discussion 12 prior to all that. 13 C.O. CAFFREY: I recall it. 14 MR. HERRICK: He does, however, have concerns that 15 the areas of questions be limited to WR 95-6 as some of the 16 topics that I listed in my letter where I said what I 17 wanted covered, he believes some of those conflict with, or 18 preempt other phases. And in those phases Mr. Ploss is 19 scheduled to give testimony. So it's up to the Board. I 20 would prefer to question Mr. Ploss now. I will certainly 21 try to connect every question to WR 95-6, the subject is 22 based on -- 23 C.O. CAFFREY: In the spirit of the phasing approach, 24 please, try to keep your questions very pertinent and very 25 relevant to Phase I, because we're going to trust that CAPITOL REPORTERS (916) 923-5447 505 1 Mr. Brandt is going to make Mr. Ploss available for all the 2 other phases in which you may need him, Mr. Herrick. 3 And we also wish to acknowledge and thank you, 4 Mr. Brandt, for your corporation in making Mr. Ploss 5 available as you said you would when last we met. Thank 6 you, sir. Please, proceed -- I'm sorry, did you have more? 7 MR. HERRICK: No. I didn't want to misstate what 8 Mr. Brandt and I talked about. 9 MR. BRANDT: I think that's accurate. My main focus 10 is on the interim plan, we're trying to do that. He has 11 direct testimony in Phase II. I think that was the option 12 to cross-examine on that testimony. And so we're focused 13 more here today on 95-6 as I understand it pumping and 14 things like that. 15 C.O. CAFFREY: All right. Thank you, sir. Please 16 proceed, Mr. Herrick. 17 MR. HERRICK: Mr. Ploss, would you briefly give the 18 Board -- 19 C.O. CAFFREY: I'm sorry to interrupt. Mr. Ploss, 20 did you take the oath? 21 MR. PLOSS: Yes, last week. 22 C.O. CAFFREY: Thank you, sir. 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 506 1 ---oOo--- 2 DIRECT TESTIMONY OF SOUTH DELTA WATER AGENCY 3 BY JOHN HERRICK 4 MR. HERRICK: Mr. Ploss, would you please briefly 5 give the Board a brief description of your current job. 6 MR. PLOSS: I'm the operations manager for the 7 Central Valley Operations Office overseeing water and power 8 operations for the Central Valley Project. 9 MR. HERRICK: And approximately how long have you 10 been in that job? 11 MR. PLOSS: Since 1993. 12 MR. HERRICK: And without stating the obvious, given 13 that job you're familiar -- generally familiar with the 14 operations in CVP regarding the various facilities that are 15 the subject of these hearings? 16 MR. PLOSS: Yes, I am. 17 MR. HERRICK: Let me start with the makeup pumping 18 issue. It's your understanding that under WR 95-6 DWR and 19 the Bureau are able to make up pumping that was foregone 20 due to fishery actions; is that correct, generally? 21 MR. PLOSS: We are allowed to request approval from 22 the Board to makeup pumping for any fishery actions that 23 are above the '95 Water Quality Control Plan. 24 MR. HERRICK: And each year you perform some sort of 25 calculations to develop an estimate, or an actual number of CAPITOL REPORTERS (916) 923-5447 507 1 how much has been foregone; is that correct? 2 MR. PLOSS: Yes, we do. 3 MR. HERRICK: And in the last, I'm going to say, 4 three years, since the '95 plan started, in each of those 5 three years have you submitted a letter to the State Board 6 setting forth how much you seek to pump? 7 MR. PLOSS: Yes, we have. 8 MR. HERRICK: And that letter also set forth the 9 months that you sought to do the makeup pumping; is that 10 correct? 11 MR. PLOSS: Yes, it presented what we call the 12 Coordinated Operations Plan between the two projects. 13 MR. HERRICK: Now, one of the conditions of 14 DW 95-6 is that the makeup pumping not -- and these are my 15 words, I'm not quoting it, not harm other legal users of 16 water; is that correct? 17 MR. PLOSS: That's correct. 18 MR. HERRICK: And could you describe what 19 calculations, if any, the Bureau performed in order to 20 determine whether or not your request for makeup pumping 21 was expected to cause harm to other legal users? 22 MR. PLOSS: The only determination we made in 23 developing the makeup plan was that we comply with the 24 existing standards. 25 MR. HERRICK: And what standards are those? CAPITOL REPORTERS (916) 923-5447 508 1 MR. PLOSS: Would be the D-1485 when those standards 2 apply, or the 1995 Water Quality Control Plan standards. 3 MR. HERRICK: Did your investigation for the -- any 4 possible effects include how the additional pumping may 5 affect South Delta diverters? 6 MR. PLOSS: No. 7 MR. HERRICK: Was that issue brought to your 8 attention in the first year of the makeup pumping? 9 MR. PLOSS: I don't believe in the first year it was. 10 MR. HERRICK: Okay. Was it brought up in subsequent 11 years? 12 MR. PLOSS: Yes. 13 MR. HERRICK: Now, one of your job descriptions, 14 maybe unfortunately, is that you're now participating with 15 DWR and South Delta in their negotiations for an amendment 16 to the draft agreement which supposedly settles a 1982 17 lawsuit; is that correct? 18 MR. PLOSS: That's correct. 19 MR. HERRICK: Excuse me for that long description 20 there. One of the issues within that is the installation 21 of the head of Old River barrier, or the fish barrier; is 22 that correct? 23 MR. PLOSS: That's correct. 24 MR. HERRICK: And excuse me for rambling on here, one 25 of the issues that deals with that barrier is whether or CAPITOL REPORTERS (916) 923-5447 509 1 not it should have some sort of culvert or piping through 2 it which would allow flow rather than no flow, correct? 3 MR. PLOSS: That has been a recent issue, yes. 4 MR. HERRICK: Okay. And could you briefly explain 5 what the issue is with regard to whether or not flow is 6 allowed to pass through that barrier? 7 MR. PLOSS: The concern has been in the past the head 8 of Old River barrier, for lack of a better term, was 9 considered a leaky barrier, because it was a rock barrier. 10 An effort was made in the design working with Department of 11 Water Resources to install culverts in the Head of Old 12 River Barrier that would give better control to flow 13 into -- into the Old River, in the channels there, at the 14 same time provide for better control of possible fish 15 movement going into those channels and also to allow for 16 flushing of fish out of those channels. 17 MR. HERRICK: Implicit in that explanation and 18 explicit in our discussions is the issue of sufficient flow 19 for downstream diverters; is that correct? 20 MR. PLOSS: There was always consideration there with 21 the design of the barrier that there would be sufficient 22 flow that could pass the barrier for diversions downstream, 23 yes. 24 MR. HERRICK: And that's because downstream of the 25 fish barrier is the area of concern in the South Delta with CAPITOL REPORTERS (916) 923-5447 510 1 regard to export pumping; is that correct? 2 MR. PLOSS: Yes. 3 MR. HERRICK: And that's because the export pumps, 4 state and federal, have an affect on the water levels and 5 flows in the South Delta; is that correct? 6 MR. PLOSS: Under certain conditions that is probably 7 true. 8 MR. HERRICK: In your calculations for makeup 9 pumping, did you take into account whether or not the head 10 of Old River barrier would be installed? 11 MR. PLOSS: Would you repeat that? 12 MR. HERRICK: In your calculations or determination 13 of makeup pumping, and by that I mean amounts and time 14 frames, did you take into consideration if the head of Old 15 River barrier would be installed? 16 MR. PLOSS: Part of the plan that would be in place 17 each year related to flows at Vernalis and the installation 18 of the head of Old River barrier to carry out pulse flow 19 operations and so it was considered in the plan whether or 20 not the barrier would be installed, yes. 21 MR. HERRICK: Now, when you say "it's considered," 22 is some sort of determination made, or calculation as to 23 what affect there might be on diverters downstream of the 24 head of Old River barrier if you're performing makeup 25 pumping? CAPITOL REPORTERS (916) 923-5447 511 1 MR. PLOSS: No, I don't believe so. 2 MR. HERRICK: And do you recall in 1996 that there 3 were complaints afforded to both you and the State Board 4 that during the time of makeup pumping there were problems 5 on Old and Middle River? 6 MR. PLOSS: I don't recall that for 1996. 7 MR. HERRICK: Do you recall a year that that did 8 happen? 9 MR. PLOSS: I believe 1997. 10 MR. HERRICK: And do you believe that was the issue, 11 the one that I just stated, I'm not trying to trick you, I 12 mean that there was an issue of the ability to divert 13 downstream of the head of Old River barrier when makeup 14 pumping was occurring? 15 MR. PLOSS: I believe that was the case. As I recall 16 there was a concern about low water levels during the 17 period of makeup pumping, yes. 18 MR. HERRICK: And was this the time when the 19 installation -- excuse me. Was this the time when the 20 three tidal barriers for the South Delta were installed or 21 not installed? 22 MR. PLOSS: I don't recall. 23 MR. HERRICK: Was that part of your calculation in 24 developing a makeup pumping proposal whether or not the 25 tidal barriers were installed, too? CAPITOL REPORTERS (916) 923-5447 512 1 MR. PLOSS: No. 2 MR. HERRICK: Given this instance that your memory is 3 in 19 -- excuse me, you just stated you thought it was 1997 4 that a problem arose -- 5 MR. PLOSS: Yes. 6 MR. HERRICK: -- rather than 1996? What measures, if 7 any, did the Bureau take to address these concerns? 8 MR. PLOSS: At that time pumping was being 9 accomplished at the State's Banks Pumping Plant on behalf 10 of the Central Valley Project. When we were notified that 11 there was concern with the low water levels in the channels 12 in the South Delta, the State reduced their pumping. 13 MR. HERRICK: Do you know whether that reduction 14 resulted in a sufficient amount of water for diversions in 15 the South Delta? 16 MR. PLOSS: I cannot recall. 17 MR. HERRICK: Subsequent to that issue, did you 18 submit another plan the next year for makeup pumping? 19 MR. PLOSS: There was another plan that was 20 submitted for 1998, yes. 21 MR. HERRICK: Did that take into account, or make any 22 calculations with regard to the installation of the head of 23 Old River barrier, South Delta diversions, or the existence 24 of the tidal barriers? 25 MR. PLOSS: The 1998 plan assumed certain spring CAPITOL REPORTERS (916) 923-5447 513 1 operations that would cause a reduction in exports and 2 evaluated a plan for making that water up. 3 MR. HERRICK: And, again, did that plan include 4 consideration for the three factors that I just named? 5 MR. PLOSS: No, it did not. 6 MR. HERRICK: Mr. Ploss, are you aware in 1997 that 7 the take limit of smelt -- I'm going to say it the wrong 8 way, the take limit was being approached in the spring of 9 '97? 10 MR. PLOSS: Yes. 11 MR. HERRICK: And basically that is that a certain 12 number of smelt were being taken at the pumps which keyed 13 in other required operations, or changes in operations; is 14 that correct? 15 MR. PLOSS: That's correct. 16 MR. HERRICK: And were you part of the 17 decision-making process at that time for export operations? 18 MR. PLOSS: Yes. 19 MR. HERRICK: Is it your recollection that one of the 20 things done was the tying open of the gates on the tidal 21 barriers of the South Delta? 22 MR. PLOSS: I believe that is correct, the gates on 23 the culverts were opened. 24 MR. HERRICK: And what is your understanding of the 25 purpose of the South Delta tidal barriers? CAPITOL REPORTERS (916) 923-5447 514 1 MR. PLOSS: That was to allow for better movement of 2 water through those channels. 3 MR. HERRICK: Are those intended as mitigation for 4 the affects of export pumping on South Delta waters? 5 MR. PLOSS: I don't recall that. I believe they are 6 tied to the installation of the head of Old River barrier. 7 MR. HERRICK: I'm sorry, the purpose of them, not 8 what they're dependent upon. But is the purpose of the 9 tidal barriers to attempt to mitigate to some degree the 10 affects that the export pumps have on South Delta water 11 flows and levels? 12 MR. PLOSS: I don't know specifically. 13 MR. HERRICK: Well, do you understand -- can you give 14 us your explanation of what those tidal barriers 15 accomplish, if anything? 16 MR. PLOSS: I'd have to defer that to probably the 17 Department of Water Resources. 18 MR. HERRICK: Okay. But during 1997 it's your 19 understanding that those barriers were tied open because of 20 the smelt take limit being approached; is that correct? 21 MR. PLOSS: I believe that's the case, yes. 22 MR. HERRICK: And during that same time frame they 23 were tied opened isn't -- wasn't that the time frame that 24 export pumping ramped up from its previous low during the 25 pulse flow? CAPITOL REPORTERS (916) 923-5447 515 1 MR. PLOSS: Yes, I believe so. 2 MR. HERRICK: Do you recall receiving complaints with 3 regard to the water levels by the Westlands Water 4 District -- excuse me, by the West Side Water District in 5 the South Delta? 6 MR. PLOSS: No, I don't. 7 MR. HERRICK: You don't recall that? 8 MR. PLOSS: No, I don't. 9 MR. HERRICK: Do you recall who made the decision to 10 tie the South Delta tidal barriers open in the spring of 11 '97? 12 MR. PLOSS: No, I don't know who made that decision. 13 MR. HERRICK: Are you aware of any group that made 14 that decision? I'm just trying to pin you down as to what 15 you may know. 16 MR. PLOSS: No, I don't know how that decision was 17 made. 18 MR. HERRICK: It wasn't the CalFed Ops Group, or was 19 it the CalFed Ops Group? 20 MR. PLOSS: I can't say specifically. 21 MR. HERRICK: Again, I'm just trying to jog your 22 memory. 23 MR. PLOSS: That would have been the logical place 24 for such a discussion to take place, but I don't know if 25 that's where the decision was made. CAPITOL REPORTERS (916) 923-5447 516 1 MR. HERRICK: Who is the no-name group which I 2 understand to be a subpart of the CalFed Ops Group? 3 MR. PLOSS: The no-name group is a subcommittee to 4 the CalFed Operations Committee that deals more with 5 realtime issues. Since the operations committee only meets 6 monthly the no-name group is able to meet as frequent as 7 necessary through conference calls to discuss more the 8 ongoing operation issues. 9 MR. HERRICK: Does the -- does this no-name group 10 make decisions that were implemented prior to the Ops Group 11 considering those issues? 12 MR. PLOSS: They may make a decision. Typically, 13 the arrangement is if a decision is made by the no-name 14 group the cochairs of the operations committee are to be 15 notified. 16 MR. HERRICK: Okay. So is it -- is it possible then 17 that the no-name group, no-name committee makes a decision 18 and it's implemented and at the same time or currently 19 there's a notification of the Ops Group? 20 MR. PLOSS: That decision could be made by the 21 no-name group through a general consensus, yes. 22 MR. HERRICK: Who are the participants on the no-name 23 group? 24 MR. PLOSS: No-name group is made up of the resource 25 agencies, the state and federal fishery agencies, the CAPITOL REPORTERS (916) 923-5447 517 1 Bureau, the Department of Water Resources, a number of 2 water districts including West Side Water Districts, Delta 3 Water Districts. There's also representatives from the 4 environmental organizations on that group. 5 MR. HERRICK: Is that a regularly scheduled group, or 6 do they send notices out for the meetings? 7 MR. PLOSS: They send notices out to the 8 participants. 9 MR. HERRICK: Do you know whether or not South Delta 10 is on that notice list? 11 MR. PLOSS: I believe they are, yes. 12 MR. HERRICK: In the last three years under WR 95-6, 13 I think that's still three years, has the 30-day pulse flow 14 that's specified under the Water Quality Control Plan, has 15 that been extended to more than 30 days in any particular 16 year? 17 MR. PLOSS: It's been held, as I recall, to 30 days 18 with ramping up of exports of that 30-day period. 19 MR. HERRICK: Okay. Explain to me how -- explain 20 what you mean by that. I don't understand. 21 MR. PLOSS: We determine what the import -- or what 22 the import/export ratio is during the 30-day pulse period. 23 And then we try to ramp up the, what is known as is E/I 24 ratio between the 16th of May and 1st of June. 25 MR. HERRICK: So the ramping is done after that CAPITOL REPORTERS (916) 923-5447 518 1 30-day time frame; is that correct? 2 MR. PLOSS: That's correct. 3 MR. HERRICK: But is the amount of water of that 4 30-day pulse flow continued during that ramp up period? 5 MR. PLOSS: I don't understand what you mean by 6 "amount of water." 7 MR. HERRICK: Well, let me ask you this: Once the 8 30-day pulse flow is over, do you change your operations by 9 releasing less water for fish, fishery purposes? 10 MR. PLOSS: Releasing less water from where 11 specifically? 12 MR. HERRICK: If we're talking about the Vernalis 13 standard it would be the New Melones site. 14 MR. PLOSS: Based on the criteria we use under CVPIA 15 we may extend the release from New Melones. 16 MR. HERRICK: That's what I'm getting at. Is the 17 release from New Melones extended? 18 MR. PLOSS: Under some conditions that is extended, 19 yes. 20 MR. HERRICK: Was that done -- do you recall whether 21 that was done in the last three years? 22 MR. PLOSS: I believe it was, yes. 23 MR. HERRICK: And I have here South Delta Exhibit 24 Number 24, which is a cover letter -- includes a cover 25 letter and some release numbers. And I just want you to CAPITOL REPORTERS (916) 923-5447 519 1 identify, if you can, I believe the letter is from you to 2 me. 3 MR. PLOSS: Yes, it is. 4 MR. HERRICK: And on the third page of that is 5 release -- releases from New Melones, over what time 6 period? 7 MR. PLOSS: This is from April 1st through May 31st. 8 MR. HERRICK: And in what year? 9 MR. PLOSS: This is 1997. 10 MR. HERRICK: And does that confirm what you just 11 said that the -- you extend the -- you have extended in the 12 past the pulse flow for fisheries longer than the 30-day 13 period? 14 MR. PLOSS: This reflects that there were increased 15 releases from New Melones. In this case it shows Goodwin 16 releases that would extend to approximately the 31st of 17 May, yes. 18 MR. HERRICK: And during the pulse flow, if you 19 recall during 1997 -- that's '97, I'm sorry? 20 MR. PLOSS: Yes. 21 MR. HERRICK: During the pulse flow in 1997, I'm 22 talking about the 30 days, what's your understanding of the 23 limitation on export pumping on your operations? 24 MR. PLOSS: The limitation on export pumping during 25 the 30-day period is tied to the criteria that we followed CAPITOL REPORTERS (916) 923-5447 520 1 under the biological opinion for Delta smelt. And then the 2 30 days is followed by the ramping, which I described. 3 MR. HERRICK: And, again, I'm not trying to trick 4 you, but the Water Quality Control Plan I believe places a 5 limit of a hundred percent on the San Joaquin River flow 6 during the pulse flow, but in consultation with the fishery 7 agencies, I'll say, they've requested your operations have 8 some sort of a ratio of San Joaquin River inflow to export; 9 is that correct? 10 MR. PLOSS: The Water Quality Control Plan, as you 11 stated, does allow for one-hundred percent of the Vernalis 12 flow to be exported. Independent of that is the biological 13 opinion for Delta smelt which has a different export 14 criteria. 15 MR. HERRICK: And that's one of the ways that you 16 calculate -- excuse me, that's one of the ways that you 17 calculated how much water you would have had to forego 18 during the pulse flow; is that correct? 19 MR. PLOSS: That's correct. 20 MR. HERRICK: So you calculate what you would have 21 gotten with a hundred percent? 22 MR. PLOSS: That's correct. 23 MR. HERRICK: If the Water Quality Control Plan was 24 not in existence -- or not in effect, nonexistence, I'll 25 say, and if WR 95-6 was not in existence would you still CAPITOL REPORTERS (916) 923-5447 521 1 have to operate under the biological opinion that you 2 mentioned? 3 MR. PLOSS: Yes, we would. 4 MR. HERRICK: Thanks. Mr. Chairman, this is where I 5 might run into a conflict with Counsel. I do want to ask a 6 couple questions -- a few questions regarding the interim 7 operation plan for New Melones. The reason is that it's my 8 understanding that that is the current operations of the 9 Bureau and would be the continued operations under the 10 Bureau if 95-6 were extended. 11 I, certainly, understand that -- I assume the 12 Bureau has the ability to change that, but I think it's 13 relevant to see what the current operations are, what 14 they're based on if those are being contemplated to be 15 extended. 16 C.O. CAFFREY: Why don't you ask the question, 17 Mr. Herrick, and see if there's an objection and then we'll 18 try to rule. 19 MEMBER BROWN: Mr. Chairman? 20 C.O. CAFFREY: Mr. Brown. 21 MEMBER BROWN: Mr. Herrick. 22 MR. HERRICK: Yes. 23 MEMBER BROWN: Before you move off of this question, 24 on your -- I'd like to have one of your questions 25 clarified. And you were talking about your concern with CAPITOL REPORTERS (916) 923-5447 522 1 the lower pumping water level during the export pumping 2 when they're making up the pumping out of the Delta. Is 3 your concern with the decrease in the pumping water level, 4 or was the concern based upon the lack of supply to the 5 water users? 6 MR. HERRICK: Well, our concern is the net effect and 7 that's based on both of those. And I don't want to get 8 into argument, but to answer your question, if there's 9 pumping in addition to what would have been absent makeup 10 pumping provisions, and if the inflow because the head of 11 Old River barrier is insufficient, the net result is we 12 believe a lowered water level in the South Delta channels. 13 What I was trying to elicit here is whether or not that 14 consideration was examined in the development of the makeup 15 pumping plan each year. 16 MEMBER BROWN: Thank you. 17 C.O. CAFFREY: Mr. Herrick, before you proceed with 18 your questions, I want to raise a procedural point. I'm 19 not aware of any evidentiary exhibits for Mr. Ploss's 20 appearance. Is that correct, you did not have any? 21 MR. HERRICK: I just had -- excuse me, I just had 24 22 which I asked him to confirm and I'll ask him to confirm 23 our -- 24 C.O. CAFFREY: Okay. 25 MR. HERRICK: -- copy of the interim operation plan. CAPITOL REPORTERS (916) 923-5447 523 1 But those aren't exhibits that he's provided. Those are 2 ones we provided originally and I'm asking him to comment 3 or confirm them. 4 C.O. CAFFREY: The reason I ask that is because there 5 is a 20-minute limit on direct testimony. And you have -- 6 what's that, a minute and 35 seconds left. And we've been 7 pretty strict. In fact, we've disallowed anybody any 8 extensions of that, because it's suppose to be a summary of 9 the exhibits. That's not the way we handle 10 cross-examination, because that gets into due process. And 11 cross-examination is not summarization. As long as it's 12 relevant we tend to give people additional time if it's 13 pertinent. 14 In this instance, if you do have exhibits 15 pertaining to his testimony, then, we need to hold you to 16 the minute and 35 seconds. So I want you to be aware of 17 that, that you're down to that amount of time. 18 MR. HERRICK: I appreciate that. I would just say, 19 obviously, Mr. Ploss is being called as an adverse witness. 20 It's more of a cross-examination situation -- 21 C.O. CAFFREY: Well, yeah. And that is an 22 interesting point. And since you raise it, I might be 23 inclined to give you a little bit more time in this 24 instance since he is, in some respects, an adversarial 25 witness and since there is -- I'm going to make a CAPITOL REPORTERS (916) 923-5447 524 1 presumption that has, obviously, limited your ability to 2 submit any kind of evidentiary exhibits. So how much more 3 time do you need? 4 MR. HERRICK: I believe I'll be done within ten 5 minutes at the most. 6 C.O. CAFFREY: All right. We'll start the clock at 7 ten more minutes. And this is not precedential to any 8 other situation, this is an exception. Unless somebody has 9 a similar situation that comes up, and I'm not aware of 10 any, I just want to say for the record that this is a 11 special exception with good reason. At least that's the 12 Chair's opinion. 13 C.O. STUBCHAER: All right, Mr. Chairman. 14 C.O. CAFFREY: Thank you, Mr. Stubchaer. All right, 15 we'll give you another ten minutes, Mr. Herrick. 16 MR. HERRICK: Thank you, Mr. Chairman. Mr. Ploss, 17 could you quickly tell us when the interim operation plan 18 for New Melones was developed? 19 MR. PLOSS: We began in March of 1995 with a public 20 meeting in Stockton starting to develop a long-term 21 operation plan for the New Melones Reservoir. And that 22 long-term operation plan evolved into an interim plan. 23 MR. HERRICK: And that process attempted to develop 24 consensus, but is it your recollection that you did not 25 reach consensus with all the parties attending those -- CAPITOL REPORTERS (916) 923-5447 525 1 those discussions? 2 MR. PLOSS: I'm unable to define "consensus" in that 3 process. 4 MR. HERRICK: That interim operation plan 5 specifies -- or budgets, I'll say, certain amounts of water 6 depending on the year type for certain purposes; is that 7 correct? 8 MR. PLOSS: That's correct. 9 MR. HERRICK: And so each year you have amounts 10 budgeted for the Oakdale/South San Joaquin contract, 11 fishery releases, water quality, and possibly some years 12 for the other contractors; is that correct? 13 MR. PLOSS: That's correct. 14 MR. HERRICK: And has the Bureau done modeling on the 15 effects of that plan over the 71 water history? 16 MR. PLOSS: Yes, we have. 17 MR. HERRICK: Let me show you SDW 23, which is 18 unfortunately a bad copy, let's see if you can identify 19 that. 20 MR. PLOSS: This is one what we refer to as the 21 controller sheet for the long-term modeling for the 22 Stanislaus River and the San Joaquin and the summary of the 23 results from that modeling. I can't tell you specifically 24 which model run this happened to be. 25 MR. HERRICK: And does that model run, any way, shows CAPITOL REPORTERS (916) 923-5447 526 1 that according to the results there are a number of years 2 in which there will be a deficiency for water quality; is 3 that correct? 4 MR. PLOSS: It shows that there is a number of years 5 in which there would have been at least one month of 6 deficiency, yes. 7 MR. HERRICK: Okay. And -- 8 MR. PLOSS: And your reference is to water quality 9 at Vernalis, I believe? 10 MR. HERRICK: Correct. 11 MR. PLOSS: Yes. 12 MR. HERRICK: The deficiency that's noted in there, 13 there's no description of how that deficiency will be 14 handled, is there? 15 MR. PLOSS: No, there's not. 16 MR. HERRICK: So, hypothetically, if you come up with 17 10,000 acre feet short in one year, which I believe -- 18 isn't that the average -- excuse me. 19 Let's take the average annual deficiency of 20,000 20 acre feet, there are various ways to handle that, aren't 21 there, Mr. Ploss? 22 MR. PLOSS: That's correct. 23 MR. HERRICK: You could make water quality releases 24 until you ran out, or you could try to damper the effect by 25 releasing more over a longer period of time but still not CAPITOL REPORTERS (916) 923-5447 527 1 meet the standard; is that correct? 2 MR. PLOSS: That is correct. 3 MR. HERRICK: And is it correct to say that according 4 to the modeling there's expected to be water quality 5 violations in approximately 40 percent of the year types 6 modeled? 7 MR. PLOSS: This shows of the 70 years modeled that 8 there was 31 years that there was at least one month in any 9 of those years where there would be a violation, or 10 deficiency in meeting water quality, yes. 11 MR. HERRICK: When you develop these numbers, 12 understanding that there is a consensus, whatever that is, 13 was not reached, on what basis did you make the decision of 14 how much to budget for water quality in each year type? 15 MR. PLOSS: This was a modeling exercise that the 16 Bureau went through in developing the interim operations 17 plan for New Melones. It is a modeling tool used for 18 planning purposes to plan how the -- the project could be 19 operated over a long-term, in this case 70 years, what 20 would be the results of any given budget of water for 21 various purposes. This was not used to develop a 22 consensus, necessarily, but to present to the stakeholders 23 the sensitivity on how the budgeting would take place in 24 developing an interim operation plan. 25 MR. HERRICK: But the plan that you developed does CAPITOL REPORTERS (916) 923-5447 528 1 include these numbers in the modeling results, correct? 2 MR. PLOSS: These are the numbers that we used in 3 developing the interim operation plan, yes, that's true. 4 MR. HERRICK: And the decision as to how much to 5 budget for water quality in each year was not based on 6 need; is that correct? 7 MR. PLOSS: This was based on need in doing a 8 long-term modeling to come up with the best fit that we 9 could in meeting water quality and meeting all the other 10 purposes on the New Melones Reservoir. 11 MR. HERRICK: I understand it's a -- it's an attempt 12 to address the conflicting needs. But my question is: The 13 amount of water budgeted in any year is not based upon what 14 you would estimate as would be needed in that year for 15 water quality, correct? 16 MR. PLOSS: Correct. We did not run the model to 17 give the water quality preference over other purposes. 18 MR. HERRICK: Mr. Ploss, you'll note that in wet 19 years, and I don't recall how they're defined, but in wet 20 years there is a budget of 250,000 acre feet for water 21 quality; is that correct? 22 MR. PLOSS: That's what we set on our model, yes. 23 MR. HERRICK: Do you know if -- 24 C.O. CAFFREY: Time out. Time out on your time, 25 Mr. Herrick, not on the record. CAPITOL REPORTERS (916) 923-5447 529 1 Mr. Brandt? 2 MR. BRANDT: We actually have a regular direct 3 testimony on this in Phase II. Where he's talking about -- 4 I mean I gave him some time to ask him questions about the 5 development of the interim plan and its operation, but 6 where we're talking now about modeling over a 70-year 7 period and what's going to happen, I see little impact on 8 that, on what's going to happen in the next nine -- next 9 year until these hearings are done. 10 That's where I think we are starting to cross the 11 line. And I think we really need to come back in Phase II 12 and present his direct testimony so in that context you're 13 better able to take in all this information. 14 C.O. CAFFREY: Well, I'll tell you what I'm inclined 15 to do, especially in Phase I, it's pretty difficult to draw 16 these lines in the immediate context of where we are now. 17 The Board is going to have to review the entire record when 18 it gets to the end of all this and it will be to the Board 19 to give to it the weight of evidence. 20 Mr. Herrick has 4 minutes and 15 seconds left. 21 I'm inclined to let him go on. It may be repetitious for 22 what we do in later phases, but I would also ask you, 23 Mr. Herrick, to take heed of Mr. Brandt's concerns and try 24 to keep this as pertinent as you can to Phase I, although, 25 I acknowledge that those lines aren't always that clear. CAPITOL REPORTERS (916) 923-5447 530 1 MR. HERRICK: Thank you, Mr. Chairman. I believe my 2 final questions after I get past this little issue will do 3 that. 4 Mr. Ploss, in your opinion are there any wet years 5 in which 250,000 acre feet of water would be needed? 6 MR. PLOSS: It would be difficult to say depending 7 on what type of a wet year it is, because each wet year is 8 different. 1997 was a wet year by classification, but then 9 turned out to be dry. 10 MR. HERRICK: Would you disagree with 11 Mr. Hildebrand's earlier comment that although there are 12 some wet years where water quality releases would be 13 needed, he didn't believe that there would ever be any year 14 where 250,000 acre feet would be needed? 15 MR. PLOSS: I couldn't make that statement, no. 16 MR. HERRICK: If the 250,000 acre feet of water is 17 not used for water quality, what happens to that water? 18 MR. PLOSS: It stays in the reservoir. 19 MR. HERRICK: And becomes part of the pool for 20 calculating next year's available flows for other -- all 21 purposes; is that correct? 22 MR. PLOSS: That's correct. 23 MR. HERRICK: If WR 95-6 is not extended will the 24 Bureau continue to operate under the New Melones Interim 25 Operation Plan? CAPITOL REPORTERS (916) 923-5447 531 1 MR. PLOSS: We'll continue to operate under the 2 interim operation plan until such time that through the 3 stakeholder process we can develop a long-term plan, yes. 4 MR. HERRICK: And if -- well, would you -- do you 5 believe the Bureau will continue to operate under the 6 interim operation plan absent some direction from the Board 7 as to change those operations? I mean are you going to 8 voluntarily change your operations depending on the outcome 9 of these hearings? 10 MR. PLOSS: If it's necessary, we will, yes. 11 MR. HERRICK: That's all I have, Mr. Chairman. Thank 12 you very much for the additional time. I appreciate that 13 very much. 14 C.O. CAFFREY: You're very welcome, Mr. Herrick. 15 Thank you. Let's see, do any of the parties wish to 16 cross-examine Mr. Ploss? Mr. O'Laughlin, Mr. Nomellini, 17 and Mr. Birmingham and Mr. Turner. All right. Let's 18 take -- 19 MR. BIRMINGHAM: Mr. Chairman? 20 C.O. CAFFREY: Yes, Mr. Birmingham? 21 MR. BIRMINGHAM: Given the common interest between 22 Central Delta and South Delta, I wonder if Mr. Nomellini 23 could cross-examine Mr. Ploss first. 24 C.O. CAFFREY: There's nothing magic about the order. 25 I just look through and whoever stood up first. If there's CAPITOL REPORTERS (916) 923-5447 532 1 no objection, Mr. Nomellini, why don't you go first then. 2 MR. NOMELLINI: I'd be happy to. 3 C.O. CAFFREY: But before you do that, and this is 4 not a commentary on your skills, sir, why don't we take a 5 break. It's just that we're trying to stay fresh. We're 6 always interested in your questioning, Mr. Nomellini. 7 Let's take about a 15-minute break -- a 12-minute break 8 according to Mr. Stubchaer. 9 (Recess taken from 10:17 a.m. to 10:30 a.m.) 10 C.O. CAFFREY: We're back on the record. 11 MR. NOMELLINI: Thank you, Mr. Chairman. 12 ---oOo--- 13 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 14 BY CENTRAL DELTA WATER AGENCY 15 BY DANTE JOHN NOMELLINI 16 MR. NOMELLINI: Mr. Chairman, Dante John Nomellini on 17 behalf of what I'll term the Central Delta parties. 18 Mr. Ploss, does Decision 95-6 result in a 19 reduction of CVP exports? 20 MR. PLOSS: Yes, it does. 21 MR. NOMELLINI: And what aspects of 95-6 results in a 22 reduction in exports for the CVP? 23 MR. PLOSS: One is the elimination of the 24 replacement pumping by the State Water Project that was 25 allowed under D-1485, approximately 195,000 acre feet. CAPITOL REPORTERS (916) 923-5447 533 1 MR. NOMELLINI: Any other aspects of 95-6 that result 2 in a reduction of exports? 3 MR. PLOSS: Well, in total there are several aspects 4 of meeting the standards. That long-term analysis is 5 estimated to be upwards of nearly a million acre feet in 6 reduce export pumping as a result of the '95 Water Quality 7 Control Plan. 8 MR. NOMELLINI: So as a result of '95 Water Quality 9 Control Plan you think that there's upwards of a million 10 acre feet of reduction in CVP exports from the Delta? 11 MR. PLOSS: Yes, and that would be in the critical 12 period. 13 C.O. STUBCHAER: Question, Mr. Chairman? 14 C.O. CAFFREY: Yes. Mr. Stubchaer has a question. 15 C.O. STUBCHAER: Was that CVP only or combined? 16 MR. PLOSS: That's combined for the two projects. 17 MR. NOMELLINI: All right. Let's go back to my 18 questions. My questions were related to the CVP. Now, 19 let's go again so we can segregate them. Does 95-6 result 20 in a reduction in CVP exports from the Delta? 21 MR. PLOSS: Yes, it does. 22 MR. NOMELLINI: All right. And what parameter, 23 again, in 95-6 result in a reduction of CVP exports? 24 MR. PLOSS: The one I specifically mentioned was the 25 replacement pumping provided for in D-1485 which was CAPITOL REPORTERS (916) 923-5447 534 1 eliminated in the '95 Water Quality Control Plan and that's 2 replacement pumping of up to 195,000 acre feet. 3 MR. NOMELLINI: Okay. Now, I was asking specifically 4 about 95-6. Is your answer the same with regard to 95-6, 5 you referenced the '95 Water Quality Control Plan? 6 MR. PLOSS: Yes. 7 MR. NOMELLINI: And by what amount approximately are 8 the CVP exports for the Delta reduced by 95-6? 9 MR. PLOSS: The combined -- again, I have to go back 10 to the '95 Water Quality Control Plan of implementing it, 11 which the two projects are doing under 95-6. And 12 projections are upwards to one million acre feet combined 13 reduction in exports of the two projects of which 14 approximately one half of that is the Central Valley 15 Project. 16 MR. NOMELLINI: Roughly 500,000 acre feet? 17 MR. PLOSS: Roughly 500,000 acre feet. 18 MR. NOMELLINI: And you say that's in a critical 19 period? 20 MR. PLOSS: That's in a critical period. 21 MR. NOMELLINI: In an average type of year what would 22 that amount to? 23 MR. PLOSS: It would be 2 to 300,000 acre feet. 24 MR. NOMELLINI: What aspects of the Water Quality 25 Control Plan reduce CVP exports from the Delta, if CAPITOL REPORTERS (916) 923-5447 535 1 different than 95-6? 2 MR. PLOSS: Well, there are several aspects in 3 meeting the standards. The X2 standards, for example. 4 Limiting the April/May pumping to Vernalis flows is another 5 example, operations of cross-channel gates. There's 6 several examples through the plan that is implemented under 7 95 -- that we follow under 95-6 that would cause us to 8 reduce exports. 9 MR. NOMELLINI: All right. 95-6 does not mandate 10 that the projects meet the Vernalis fishery flow 11 requirements, does it? 12 MR. PLOSS: It -- what 95-6 does is it eliminates 13 the inconsistencies between the '95 Water Quality Control 14 Plan and D-1485. 15 MR. NOMELLINI: All right. But does 95-6 mandate 16 that the CVP meet the Vernalis fishery flow requirements? 17 MR. PLOSS: It does not mandate it, no. 18 MR. NOMELLINI: So that's a voluntary action on the 19 part of the Bureau to meet the Vernalis fishery flow? 20 MR. TURNER: I object to that question as asking for 21 a legal conclusion as to whether it's a mandate or a 22 voluntary decision. I feel that 95-6 would speak for 23 itself and would have the appropriate force and effect 24 pursuant to its terms and conditions. 25 C.O. CAFFREY: You want to try a different word CAPITOL REPORTERS (916) 923-5447 536 1 there, Mr. Nomellini, because he raises a legal point? 2 MR. NOMELLINI: No. That's all right. That answer 3 is good enough. 4 C.O. CAFFREY: All right. Then I'm going to sustain 5 the objection. 6 MR. NOMELLINI: To? 7 C.O. CAFFREY: You're asking him for a legal opinion 8 the way Mr. Turner saw it. And I tend to agree with him. 9 I asked you to rephrase your question -- 10 MR. NOMELLINI: Oh, okay. Well, let's try it again. 11 C.O. CAFFREY: Try a little more mundane terminology. 12 MR. NOMELLINI: Is there a requirement in 95-6 that 13 requires the CVP to meet Vernalis fishery flow 14 requirements? 15 MR. PLOSS: There's no specific requirement. 16 MR. NOMELLINI: All right. Does the Delta Accord 17 cause a reduction in CVP exports? 18 MR. TURNER: If I might, Board Members, I'm trying to 19 figure out the relationship between -- 20 C.O. CAFFREY: I'm sorry. Start again, Mr. Turner. 21 MR. TURNER: I question the relationship. I thought 22 we were talking here about 95-6. Now we're talking about 23 the Accord, the Water Quality Control Plan in general. I 24 question the relevance of these questions as to the issue 25 that we're supposedly addressing and that is the extension CAPITOL REPORTERS (916) 923-5447 537 1 of 95-6. 2 C.O. CAFFREY: Ask the question again, I'm sorry. I 3 was conferring up here and I didn't hear the question. 4 MR. NOMELLINI: All right. My question was: Does 5 the Delta Accord cause a reduction in CVP exports? And I 6 would like to address the relationship of the two, which I 7 think is obvious. We have the question of the extension of 8 95-6 as part of Phase I of this hearing. We have had 9 testimony from the San Luis Delta-Mendota Authority -- 10 C.O. CAFFREY: Are you laying groundwork for 11 something that's pertinent? 12 MR. NOMELLINI: I'm debating this objection. 13 C.O. CAFFREY: Right, but does your question lay some 14 groundwork for zeroing in on something a little more 15 specific to -- 16 MR. NOMELLINI: I think the Delta Accord and 95-6 17 have been related for the purpose of this hearing. And I 18 was explaining how. 19 C.O. CAFFREY: Well, cross-examination does allow you 20 to go beyond the scope of whatever the original testimony, 21 or evidence was. I'm going to look to Mr. Attwater for 22 some guidance here. 23 MR. ATTWATER: Maybe Ms. Leidigh and I can talk about 24 it, but what the Bureau has to operate to is 95-6. That's 25 the Board's order. CAPITOL REPORTERS (916) 923-5447 538 1 MS. LEIDIGH: That's right. 2 MR. ATTWATER: So, I'm not sure about the relevance 3 of the Accord either. I mean everybody knows what the 4 relationship is, but still the operative document is 95-6 5 unless staff really feels that this is germane. 6 C.O. CAFFREY: Do you want to add something, 7 Ms. Leidigh? 8 MS. LEIDIGH: I think that pretty well covers it. 9 We're talking about whether or not 95-6 should be extended 10 and not about anything to do with the Delta Accord. 11 C.O. CAFFREY: All right. All right. Thank you for 12 your commentary both of you. I'm going to sustain 13 Mr. Turner's objection and ask you to withdraw that 14 question and ask you to ask questions specifically -- 15 MR. NOMELLINI: I'd like to put a little argument on 16 the record with regard to the relevance of the two. The 17 issue -- the subject matter of Phase I is whether or not 18 95-6 should be extended and what changes should be made in 19 95-6 that should accompany such an extension. 20 San Luis Delta-Mendota Canal Authority clearly 21 presented testimony to the effect that the no-net loss 22 aspects of the Delta Accord should be incorporated in 95-6 23 because 95-6 is not, in effect, a mandate on meeting the 24 fishery flow requirements at Vernalis. But it is assumed 25 that that is required under the Accord and would be done CAPITOL REPORTERS (916) 923-5447 539 1 voluntarily by the Bureau and, therefore, the concern over 2 the affect of that on exports and the tie of the two -- 3 MR. BIRMINGHAM: Excuse me -- 4 MR. NOMELLINI: -- I think it's absolutely clear that 5 the two are tied, but I understand your sustaining the 6 objection. I want that on the record. 7 C.O. CAFFREY: It's on the record now. 8 Mr. Birmingham, go ahead. 9 MR. BIRMINGHAM: Mr. Chairman, I rise only to state 10 an objection to Mr. Nomellini's characterization of the 11 testimony of Mr. Nelson. That testimony stands -- stands 12 by itself. But I do believe that Mr. Nomellini has 13 mischaracterized it, so I would object to that 14 characterization. 15 C.O. CAFFREY: Well, we will note your objection. We 16 won't rule on it, but I will simply just say this: 17 Insofar as my own interpretation of what 18 Mr. Nomellini is saying, I'm not sure what we do when we 19 talk about the Accord. Because what we're talking about 20 here is the Board's Water Quality Control Plan and 95-6 21 Order. So your reference to the Accord is something that 22 I'm not even sure it's pertinent here, because the Accord 23 is not what this Board adopted as a Water Quality Control 24 Plan, per se. So with that then you're objection -- your 25 argument is on the record, Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 540 1 MR. NOMELLINI: Okay. Very good. 2 C.O. CAFFREY: Please, proceed with questions as 3 pertinent as you can make them to Phase I. 4 MR. NOMELLINI: All right. With regard to the 5 comparison in determining what the reduction in CVP exports 6 was due to 95-6, was that comparison made to D-1485? 7 MR. PLOSS: Yes, it was. 8 MR. NOMELLINI: All right. And what affect would the 9 biological opinion on Delta smelt have on that calculation? 10 MR. PLOSS: I do not recall any specific analysis. 11 MR. NOMELLINI: Is there, in your mind, a loss 12 associated with the biological opinion for Delta smelt? 13 MR. PLOSS: There could be, yes. 14 MR. NOMELLINI: You have an estimate of what the 15 magnitude would be on CVP exports? 16 MR. PLOSS: No, I do not. 17 MR. NOMELLINI: All right. With regard to the 18 biological opinion for winter-run salmon, would that have 19 an affect on CVP exports from the Delta? 20 MR. PLOSS: It could under certain conditions. 21 MR. NOMELLINI: And do you have an estimate of what 22 the magnitude of that would be? 23 MR. PLOSS: No, I do not. 24 MR. NOMELLINI: Was there a decrease in exports due 25 to CVPIA? CAPITOL REPORTERS (916) 923-5447 541 1 MR. PLOSS: Yes. 2 MR. NOMELLINI: And -- 3 MR. TURNER: Again, I raise the same concern, 4 Mr. Caffrey. I thought we were talking about 95-6. How 5 does what CVPIA does, what the Delta Accord does, what -- I 6 fail to see where that relates directly to the issue. 7 C.O. CAFFREY: Mr. Herrick? 8 MR. HERRICK: Mr. Chairman, I would -- the issue is 9 the Bureau's operations if 95-6 is continued. And I think 10 it's perfectly appropriate to explore the basis for their 11 decisions, how they plan to operate and what they plan to 12 do. Since 95-6 doesn't order them to do something, doesn't 13 order them to comply with the '95 Plan, we're forced to 14 explore upon what basis do they make their decisions. This 15 is all perfectly relevant to me. 16 C.O. CAFFREY: Thank you for your comment. 17 Mr. Attwater, does any of this questioning, do you think, 18 have pertinence in any other phases, or is it appropriate 19 here? Does it fall within the same objection -- 20 MR. ATTWATER: Yes, I think it falls into the same 21 objection that was made earlier. I'm just -- you know, 22 the -- these other accords, these other documents, these 23 other decisions by other federal agencies, if you will, are 24 all swirling around us, but we have to keep focused on what 25 our order is and whether or not this order is going to be CAPITOL REPORTERS (916) 923-5447 542 1 extended. 2 C.O. CAFFREY: All right. Thank you, Mr. Attwater. 3 MR. NOMELLINI: At some point I would like to put my 4 two cents in. 5 C.O. CAFFREY: Put your two cents in, Mr. Nomellini, 6 and then I'll rule. 7 MR. ATTWATER: Let me add one other thing. 8 C.O. CAFFREY: Please, Mr. Attwater. 9 MR. ATTWATER: You said in your opening statement 10 that if someone had an objection that they put it in 11 writing. So I would suggest to Mr. Herrick and 12 Mr. Nomellini, or anybody else who has an objection that 13 they submit it in writing today to Ms. Leidigh and we'll 14 take a look at it. I think that would be the way to handle 15 it. 16 C.O. CAFFREY: Yes, we do. We want to deem this as a 17 procedural question, although some of these pretty much 18 just have to be dealt with as we go here. So I'm not 19 sure -- well, I value your advice, Mr. Attwater. I'm not 20 sure this one falls within that category. I'll allow you 21 to give me your brief answer and then I'll rule. 22 MR. NOMELLINI: I'm going to give you argument. As I 23 see it we are concerned about 95-6 being extended. And, of 24 course, the effects of 95-6 on CVP exports is a relevant 25 issue. The question is: Whether or not there are other CAPITOL REPORTERS (916) 923-5447 543 1 factors other than 95-6 that have caused a reduction in 2 exports that is alleged to have been caused by 95-6? 3 One of the factors -- and my question related to 4 what the impact of CVPIA is so we can fit it in to 5 determine what, in fact, is the impact of 95-6 in and of 6 itself. 7 C.O. CAFFREY: Thank you. 8 MR. NOMELLINI: So I would argue that it's relevant 9 and I just wanted to make that argument on the record. 10 C.O. CAFFREY: Thank you, Mr. Nomellini. I'm going 11 to sustain Mr. Turner's objection and again ask you to keep 12 this pertinent to 95-6. 13 MR. NOMELLINI: All right. With regard to the water 14 exported pursuant to 95-6 by the CVP, was any of that water 15 delivered to areas outside the permitted places of use of 16 the Bureau's permits? 17 MR. PLOSS: I do not know. 18 MR. TURNER: If I, again, could -- maybe I'm seeking 19 clarification at this point, Mr. Caffrey. He said, "Water 20 diverted under 95-6." 21 C.O. CAFFREY: Well -- 22 MR. TURNER: 95-6 is not a water rights permit. It 23 doesn't establish places of use. It modifies the existing 24 permits. Is he asking -- 25 C.O. CAFFREY: You're objecting to a question that CAPITOL REPORTERS (916) 923-5447 544 1 Mr. Nomellini asked and Mr. Ploss answered. 2 MR. TURNER: Then I withdraw my objection. 3 C.O. CAFFREY: All right. Proceed, Mr. Nomellini. 4 MR. NOMELLINI: As a part of your 95-6 operations and 5 meeting the 1995 Water Quality Control Plan, has the Bureau 6 purchased water from tributary agencies to supplement 7 supplies? 8 MR. PLOSS: No. 9 MR. NOMELLINI: Has the Bureau purchased water in 10 that circumstance to provide water for fish flow purposes? 11 MR. PLOSS: No. 12 MR. NOMELLINI: Is there any prohibition of the 13 Bureau purchasing water from friant water users for 14 releases into the San Joaquin River to meet fishery flow 15 requirements? 16 MR. TURNER: I think he's asking for a legal 17 conclusion. It's beyond the expertise of this witness. 18 C.O. CAFFREY: Sustained. 19 MR. NOMELLINI: With regard to the Fish and Game 20 agreement on New Melones, I believe it's the 1987 21 agreement? 22 MR. PLOSS: That's right. 23 MR. NOMELLINI: All right. Do you recall what the 24 limit is in that agreement for flows in the Stanislaus? 25 MR. PLOSS: I believe it ranges from 98,000 acre CAPITOL REPORTERS (916) 923-5447 545 1 feet as a minimum to 302,000 acre feet as a maximum. 2 MR. NOMELLINI: Is there a limit of 1250 cubic feet 3 per second for flow in the river? 4 MR. PLOSS: Not under that agreement. 5 MR. NOMELLINI: Is there a limit under another 6 agreement with the Department of Fish and Game that the 7 flows be kept under 1250 cubic feet per second? 8 MR. PLOSS: Not that I'm aware of. 9 MR. NOMELLINI: Is there a preference in the 10 operation of New Melones for meeting fishery flows versus 11 water quality standards? 12 MR. PLOSS: We are using that preference in our 13 interim operation plan, yes. 14 MR. NOMELLINI: That's all I have. 15 C.O. CAFFREY: All right. Thank you, Mr. Nomellini. 16 Mr. O'Laughlin, we go to you next. Then I have 17 Mr. Birmingham and Mr. Turner. 18 ---oOo--- 19 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 20 BY SAN JOAQUIN RIVER GROUP AUTHORITY 21 BY TIM O'LAUGHLIN 22 MR. O'LAUGHLIN: Good morning, Mr. Ploss. My name is 23 Tim O'Laughlin. I represent the San Joaquin River Group 24 Authority. I have some questions to follow-up in regard to 25 the New Melones interim operations plan. CAPITOL REPORTERS (916) 923-5447 546 1 And what we're focusing here today on is Water 2 Right Order 95-06 and the extension of that. I'd like to 3 bring this discussion to a more practical basis than what 4 it's been so far. Let's talk about: What is the storage 5 presently in New Melones? 6 MR. PLOSS: As of this morning? 7 MR. O'LAUGHLIN: As of this morning, thereabouts 8 approximately. 9 MR. PLOSS: I think about 2.4 million acre feet 10 approximately. 11 MR. O'LAUGHLIN: And what is the capacity of the New 12 Melones Reservoir? 13 MR. PLOSS: About 2.4 million acre feet. 14 MR. O'LAUGHLIN: And what's the inflow of the New 15 Melones presently approximately? 16 MR. PLOSS: I don't have that information this 17 morning. 18 MR. O'LAUGHLIN: Right. Isn't is true that a meeting 19 took place in early June among the stakeholders to discuss 20 the extension of the interim water plan for the water year 21 1999? 22 MR. PLOSS: That's correct. 23 MR. O'LAUGHLIN: And if the water year -- if the 24 interim operation plan was extended for water year 1999 25 that would take it up to September 30th of 1999; is that CAPITOL REPORTERS (916) 923-5447 547 1 correct? 2 MR. PLOSS: That's correct. 3 MR. O'LAUGHLIN: Okay. And at that meeting isn't it 4 true that the United States Bureau of Reclamation disclosed 5 to the stakeholders that there was an upcoming problem in 6 either September or October in that New Melones would have 7 too much water in it in regard to its flood envelope? 8 MR. PLOSS: Based on the projections at that time, 9 that's correct. 10 MR. O'LAUGHLIN: Okay. And how much of a problem is 11 that presently projected being in thousands of acre feet? 12 MR. PLOSS: We view right now that under our current 13 operations and projections of inflow during the summer the 14 reservoir will be approximately 50,000 acre feet above 15 target on November 1st. 16 MR. O'LAUGHLIN: And that's presently with meeting 17 all the demands set forth in the interim operation plan in 18 full from this time period until October; is that correct? 19 MR. PLOSS: That's correct. 20 MR. O'LAUGHLIN: Isn't it true, also, that the United 21 States Bureau of Reclamation explained to the stakeholders 22 in the June meeting that all -- all compliances would be 23 met next year given the carryover storage in New Melones? 24 MR. PLOSS: That's correct. 25 MR. O'LAUGHLIN: And, in fact, you sent out a CAPITOL REPORTERS (916) 923-5447 548 1 letter -- I'm sorry, I don't have it with me here today. I 2 didn't know we were going to get into this discussion. You 3 sent out a letter to all the stakeholders to that effect in 4 July of this year; is that correct? 5 MR. PLOSS: That's correct. 6 MR. O'LAUGHLIN: Okay. So let's focus just on Water 7 Right Order 95-06. And I'm referring to South Delta Water 8 Agency Exhibit Number 23. 9 Isn't it true that presently as we sit here today 10 your understanding is that the water quality components of 11 Vernalis would be met in all circumstances next year given 12 the carryover storage in New Melones? 13 MR. PLOSS: That is our projection, yes. 14 MR. O'LAUGHLIN: Were you present when Mr. Hildebrand 15 was testifying earlier this morning? 16 MR. PLOSS: Yes. 17 MR. O'LAUGHLIN: Mr. Hildebrand's testimony was that 18 the 250,000 acre feet of water allocated for water quality 19 in wet years, such as this year, would not be used. Did 20 you hear that testimony? 21 MR. PLOSS: Yes, I did. 22 MR. O'LAUGHLIN: Okay. Let's hypothetically assume 23 that none of that water this year would be used for water 24 quality. Of the 250,000 acre feet, what would happen to 25 that water? CAPITOL REPORTERS (916) 923-5447 549 1 MR. PLOSS: It would remain in the reservoir, or it 2 would be disposed of during the fall and winter through 3 flood control operations. 4 MR. O'LAUGHLIN: Okay. Now, let's say that it 5 remains in storage, what would happen to that water next 6 year in regards to the allocations made to New Melones? 7 MR. PLOSS: It would be used in developing the 8 operating plan for 1999 and that water would go into the 9 allocation, or the budgeting of meeting all the purposes of 10 New Melones. 11 MR. O'LAUGHLIN: So isn't it true that really the 12 water, the 250,000 acre feet is carried over, it's just not 13 carried over in South Delta Water Agency's water quality 14 account? 15 MR. PLOSS: That's correct. 16 MR. O'LAUGHLIN: Okay. So what happens is this water 17 gets back into the equation and then a pro rata share is 18 made of that water quality pursuant to South Delta Water 19 Agency Exhibit Number 23, the control sheets? 20 MR. PLOSS: Yes. 21 MR. O'LAUGHLIN: When the United States Bureau of 22 Reclamation was looking at the interim operation plan, did 23 it just do one computer run? 24 MR. PLOSS: We did several computer runs. 25 MR. O'LAUGHLIN: And those computer runs were shared CAPITOL REPORTERS (916) 923-5447 550 1 with the stakeholders; is that correct? 2 MR. PLOSS: That's correct. 3 MR. O'LAUGHLIN: Okay. And, in fact, there were many 4 reiterations of the computer modeling to try to understand 5 the needs, benefits, and the risks of the various 6 stakeholders in regards to what allocations of water would 7 be made in any given year; is that correct? 8 MR. PLOSS: That's correct. 9 MR. O'LAUGHLIN: Okay. Now, a question was asked by 10 Mr. Herrick earlier about extending the pulse flow, the 11 30-day pulse flow in New Melones in 1998 and in 1997 and 12 1996. Do you remember that question? 13 MR. PLOSS: Yes. 14 MR. O'LAUGHLIN: And isn't the reason that the New 15 Melones fish releases were extended in those years is that 16 the storage in New Melones plus the projected inflow was 17 that the carryover storage at the end of the year would be 18 at, or near the flood envelope? 19 MR. PLOSS: I don't recall if that was the case in 20 prior years. 21 MR. O'LAUGHLIN: And that's the case this year; is 22 that correct? 23 MR. PLOSS: That is the case this year, yes. 24 MR. O'LAUGHLIN: And there is no limiting factor 25 between making water available under the California CAPITOL REPORTERS (916) 923-5447 551 1 Department of Fish and Game agreement into the Stanislaus 2 River; is that correct, there's no limitation on that? 3 MR. PLOSS: There is no limitation, that is correct. 4 MR. O'LAUGHLIN: And, actually, the limitation on the 5 Stanislaus River has to do with a -- lawsuits filed by 6 downstream landowners against the United States Bureau of 7 Reclamation in regards to operations of New Melones when it 8 is not in flood control releases; is that correct? 9 MR. PLOSS: In general terms, that's correct, yes. 10 MR. O'LAUGHLIN: I want to focus briefly -- I don't 11 want to get too tied up in the Delta in regards to water 12 quality and so forth, but specifically looking at 1997, 13 when was the makeup pumping that the Bureau was looking at 14 doing occurring in 1997, what months? 15 MR. PLOSS: I believe we did makeup pumping in 16 September and October. 17 MR. O'LAUGHLIN: Okay. Have you ever been -- has the 18 United States Bureau of Reclamation been provided any 19 information by South Delta Water Agency in regards to 20 the -- the problems in 1997 as to a supply problem in the 21 South Delta? 22 MR. PLOSS: I don't recall that we were, no. 23 MR. O'LAUGHLIN: Okay. So all you have as far as you 24 know is oral statements by South Delta Water Agency that 25 they were short in a water supply; is that correct? CAPITOL REPORTERS (916) 923-5447 552 1 MR. PLOSS: Repeat the question. 2 MR. O'LAUGHLIN: Yeah. For 1997 all you have is oral 3 statements by South Delta Water Agency that they were short 4 water supply? 5 MR. PLOSS: Yes. 6 MR. O'LAUGHLIN: Has -- in regards to that, was there 7 any statements made by South Delta Water Agency in regards 8 to the problems that they claim to have had in 1997 9 regarding the lower pumping levels? 10 MR. PLOSS: Yes. 11 MR. O'LAUGHLIN: Has that ever been verified to you 12 in any documentation by South Delta Water Agency? 13 MR. PLOSS: I believe we received correspondence 14 from them in 1997 during the makeup pumping that they were 15 experiencing low water levels. That's correct. 16 MR. O'LAUGHLIN: Okay. Now -- and this question was 17 asked earlier by Mr. Brown. I'm unclear, is the complaint 18 against the Bureau in regards to makeup pumping that the 19 water levels are lower, or there isn't enough water to pump 20 in order to irrigate the crops within South Delta Water 21 Agency in September and October? 22 MR. PLOSS: I believe the correspondence related to 23 low water levels. 24 MR. O'LAUGHLIN: So that may cause an impact in 25 regards to the economics of lift in regards to the energy CAPITOL REPORTERS (916) 923-5447 553 1 required to pump, but it does not impact the amount of 2 water available to apply to a crop, correct? 3 MR. PLOSS: I would believe so. 4 MR. O'LAUGHLIN: One second, Mr. Chairman, I'm just 5 going through my notes briefly. 6 C.O. CAFFREY: Go ahead, Mr. O'Laughlin. 7 MR. O'LAUGHLIN: And I believe I'm done. I have no 8 further questions. Thank you, Mr. Chairman. 9 C.O. CAFFREY: All right. Thank you, Mr. O'Laughlin. 10 Mr. Birmingham, you had a question, sir. Good morning. 11 Welcome, sir. 12 ---oOo--- 13 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 14 BY SAN LUIS DELTA-MENDOTA WATER AUTHORITY 15 BY THOMAS W. BIRMINGHAM 16 MR. BIRMINGHAM: Thank you. Good morning, Mr. Ploss. 17 During his examination of you Mr. Herrick asked a question, 18 or series of questions about an incident in 1997 in which 19 gates on the tidal barrier were tied opened. Do you recall 20 those questions? 21 MR. PLOSS: Yes, I do. 22 MR. BIRMINGHAM: And you indicated that the gates on 23 the tidal barrier were tied open during a period when 24 export pumping was ramping up. Do you recall that answer? 25 MR. PLOSS: Yes. CAPITOL REPORTERS (916) 923-5447 554 1 MR. BIRMINGHAM: To what export levels were you 2 ramping up at the time the tidal barriers were tied opened? 3 MR. PLOSS: We were operating during the April 15th 4 through May 16th pulse period at a reduced export level 5 under the biological opinion for Delta smelt. And then on 6 the 16th of May we began ramping up to the inflow-export 7 level ratio that was permitted under the '95 Water Quality 8 Control Plan. 9 MR. BIRMINGHAM: So the ramping up that you were 10 discussing was not related to the makeup pumping under 11 95-6? 12 MR. PLOSS: No. 13 MR. BIRMINGHAM: You indicated that that makeup 14 pumping occurred in September and October? 15 MR. PLOSS: Yes. 16 MR. BIRMINGHAM: If I understood one of your answers 17 to a question posed to you by Mr. Herrick you indicated 18 that if 95-6 were not extended you would continue to 19 operate New Melones under the interim operations plan? 20 MR. PLOSS: That's correct. 21 MR. BIRMINGHAM: And you would do that until a 22 long-term plan is developed? 23 MR. PLOSS: That's correct. 24 MR. BIRMINGHAM: Now, isn't it correct, Mr. Ploss, 25 that the biological opinion for Delta smelt imposes CAPITOL REPORTERS (916) 923-5447 555 1 operational constraints on New Melones? 2 MR. PLOSS: It imposes operational constraints on 3 the Central Valley Project. 4 MR. BIRMINGHAM: Including the operation of New 5 Melones? 6 MR. PLOSS: We use New Melones to meet those 7 biological requirements. 8 MR. BIRMINGHAM: And is New Melones used by the 9 Bureau of Reclamation to meet obligations that it has under 10 the Anadromous Fishery Recovery Program? 11 MR. PLOSS: Yes, we do. 12 MR. BIRMINGHAM: So am I correct that if 95-6 were 13 not extended you would continue to operate in the manner 14 you've operated over the course of the last three years to 15 comply with D-1485, the AFRP, and the biological opinions? 16 MR. PLOSS: That's correct. 17 MR. BIRMINGHAM: I have no further questions. Thank 18 you. 19 C.O. CAFFREY: Thank you, Mr. Birmingham. 20 Mr. Turner? 21 MR. GALLERY: Mr. Chairman, I wonder if I could ask a 22 couple of questions? 23 C.O. CAFFREY: You want to be added to the 24 cross-examination list? 25 MR. GALLARY: Yes. CAPITOL REPORTERS (916) 923-5447 556 1 C.O. CAFFREY: All right. Do you have any particular 2 desire to go before Mr. Turner? Mr. Turner, do you have 3 any problem with that? 4 MR. TURNER: I have no problem with that, 5 Mr. Chairman. 6 C.O. CAFFREY: All right. Mr. Gallery, come ahead. 7 ---oOo--- 8 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 9 BY TUOLUMNE UTILITIES DISTRICT 10 BY DAN GALLERY 11 MR. GALLERY: Thank you. Dan Gallery representing 12 Tuolumne Utilities District. I just had a couple questions 13 about the interim operation plan, Mr. Ploss. You're aware 14 that my district, Tuolumne Utilities District is desirous 15 of getting a contract for some New Melones water under its 16 1972 agreement with the Bureau? 17 MR. PLOSS: Yes. 18 MR. GALLERY: You mentioned that the Bureau had run 19 several computer runs in arriving at the interim operation 20 plan in connection with the stakeholder meetings. Do you 21 know if any of the computer runs assumed that TUD would be 22 able to get a contract for the 9,000 acre feet that it 23 would like to have? 24 MR. PLOSS: I believe the computer runs that we made 25 only considered deliveries to existing contractors. CAPITOL REPORTERS (916) 923-5447 557 1 MR. GALLERY: And that would be Stockton East and 2 Central? 3 MR. PLOSS: Yes. 4 MR. GALLERY: There's nothing then -- well, then if 5 TUD were to attempt to secure a contract for 9,000 acre 6 feet, how would you factor that into your interim operation 7 plan? 8 MR. PLOSS: That water would come out of the 9 allocation to the other contractors. 10 MR. GALLERY: To the other CVP contractors? 11 MR. PLOSS: Yes. 12 MR. GALLERY: Would you put -- you're aware that TUD 13 is a county of origin of the water at -- in New Melones? 14 MR. TURNER: Mr. Chairman, I'm trying to put this out 15 as long as possible but, again, it seems we're -- 16 C.O. CAFFREY: So have I. 17 MR. TURNER: -- discussing the interim renewal 18 operation of New Melones in a hearing that's addressing the 19 extension of 95-6. I've lost connection again. 20 C.O. CAFFREY: Mr. Gallery, what pertinence does this 21 have to the extension of 95-6? 22 MR. GALLERY: Only that without the renewal of the 23 plan he would continue to operate under the interim 24 operation plan -- without the renewal of the 95-6 he would 25 continue to operate under the interim operating agreement. CAPITOL REPORTERS (916) 923-5447 558 1 C.O. CAFFREY: But, I think your question pertains to 2 that fact which is separate from 95-6. Am I missing 3 something? 4 MR. GALLERY: That's good enough for now, 5 Mr. Chairman. I'll take this up again in Phase II. It 6 really would be the right time to bring it up. 7 C.O. CAFFREY: All right. I will leave your 8 questions on the record and I will -- but I will, again, 9 state that it goes to the Board Members to give the weight 10 of evidence. And we look at relevancy and pertinence, 11 very, very closely. I'm sorry, did somebody stand up over 12 here? 13 MR. O'LAUGHLIN: I just wanted to object, but since 14 he's going to withdraw the questions here because it's not 15 applicable to 95-6, because TUD is not going to get a 16 contract in the next year anyway so, why discuss it? I 17 mean, let's move along and continue with some relevancy. 18 C.O. CAFFREY: Your concern is noted and that's the 19 question that we raised here from the Chair, also. 20 MR. GALLERY: Thank you. 21 C.O. CAFFREY: Thank you, Mr. Gallery. Now, 22 Mr. Turner, you wish to cross-examine? 23 MR. TURNER: Thank you, Mr. Chairman. I will try to 24 keep this short and sweet. I think I just have two 25 questions I would like to present. CAPITOL REPORTERS (916) 923-5447 559 1 First of all, Mr. Ploss, was the New Melones 2 interim plan of operations developed as a result of the 3 issuance of Order 95-6? 4 MR. PLOSS: No. 5 MR. TURNER: So -- let me just phrase it, so 6 regardless of whether 95-6 had been issued or not would 7 there have been a plan of operations, either a long-term or 8 interim plan of operations for New Melones developed? 9 MR. PLOSS: Yes, there would have been. 10 MR. TURNER: Second issue, I heard you being asked 11 earlier about the allocation of water, the budgeting of 12 water in the modeling for meeting the water quality 13 standards in the Vernalis. And there was reference to this 14 250,000 acre foot figure, and is that quantity of water 15 that was budgeted for water quality purposes in the 16 modeling, is that the precise amount of water released from 17 New Melones every single year irrespective of actual 18 conditions in each given year? 19 MR. PLOSS: No, it is not. 20 MR. TURNER: I would have no further questions. 21 C.O. CAFFREY: All right. Thank you, Mr. Turner. 22 Mr. Herrick, do you have any redirect? 23 MR. HERRICK: Just a couple, Mr. Chairman. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 560 1 ---oOo--- 2 REDIRECT EXAMINATION OF SOUTH DELTA WATER AGENCY 3 BY JOHN HERRICK 4 MR. HERRICK: Mr. Ploss, did you do any model runs 5 wherein you fully meet water quality over the year types? 6 MR. PLOSS: We made an attempt to do some model runs 7 where we gave water quality at Vernalis the preference for 8 releases from New Melones. 9 MR. HERRICK: What does that mean, "preference"? 10 Does that mean that the model runs show that you meet 11 Vernalis water quality in each year? 12 MR. PLOSS: It means that in doing the modeling we 13 would make releases first for water quality and then that 14 would be followed by releases for other purposes on the New 15 Melones. 16 MR. HERRICK: Was there any cap put on the amount for 17 water quality? 18 MR. PLOSS: No, there was not. 19 MR. HERRICK: And so did the modeling results show 20 you meet water quality for each year? 21 MR. PLOSS: No, we did not. 22 MR. HERRICK: Why, when you budgeted 250,000 acre 23 feet of water in wet years under the interim plan for water 24 quality, did you make any effort to determine how much 25 would be needed in wet years? CAPITOL REPORTERS (916) 923-5447 561 1 MR. PLOSS: I believe the modeling results would 2 show in wet years how much water was released for water 3 quality exclusively after meeting the releases for fish 4 flows in the Stanislaus River. 5 MR. HERRICK: And if there's water as part of that 6 250,000 acre feet that's not needed for water quality 7 releases, what would be the purpose of designating it water 8 quality water? 9 MR. PLOSS: I don't understand your question. 10 MR. HERRICK: We're making an assumption here. In a 11 wet year you budgeted 250,000 acre feet. Assuming for 12 argument sake that you do not need that in that wet year, 13 why would you budget it as water quality rather than 14 something else? 15 MR. PLOSS: We use the 250,000 acre feet in the -- 16 what we have been calling the control sheet for our 17 modeling for modeling purposes only. 18 MR. HERRICK: Why wouldn't you designate any extra 19 like that for fisheries, or for contractors, or for 20 somebody else that might be able to use it? 21 MR. PLOSS: We also in that control sheet designated 22 quantities of water for the other purposes such as for 23 contractors or for fish flows. 24 MR. HERRICK: Okay, but the question is: Why 25 wouldn't you designate surplus water quality water for some CAPITOL REPORTERS (916) 923-5447 562 1 other purpose? 2 MR. PLOSS: Because we are reaching the -- in the 3 case of the fish flows, we set the levels for fish flow 4 requirements at what was given as a recommendation both 5 under the Fish and Game agreement and also in meeting AFRP 6 flow requirements. 7 MR. HERRICK: So you didn't want to budget water in 8 addition to what somebody decided was necessary for fish? 9 MR. PLOSS: Yes. 10 MR. HERRICK: Why did you budget, then, water in 11 addition to what's necessary for water quality? 12 MR. PLOSS: Because we thought that was a reasonable 13 level for modeling purposes to put into the analysis. 14 MR. HERRICK: Doesn't have anything to do with the 15 needs for water quality, correct? 16 MR. PLOSS: No. No, it was only a modeling 17 exercise. 18 MR. HERRICK: Mr. Ploss, I want to clarify, 19 Mr. O'Laughlin asked you whether or not you'd received any 20 data with regards to problems in the South Delta during 21 makeup pumping times. Is it your testimony today that 22 there are no correspondence between you, the State Board, 23 and the South Delta Water Agency regarding problems over 24 the last three years? 25 MR. TURNER: I would just point out, if I could, that CAPITOL REPORTERS (916) 923-5447 563 1 I think that the question about the correspondence that was 2 being presented related to 1997, not, historically, if I'm 3 not mistaken. So are you talking just 1997, or are you 4 expanding the time frame? 5 MR. HERRICK: Well, the question was for the whole 6 time frame. The answer to the question was 1997. And 7 that's what I'm exploring what his testimony is for the 8 three-year period. 9 MR. PLOSS: I recall 1997 there was correspondence. 10 MR. HERRICK: Do you have any doubts in your own mind 11 that the discussions, whether oral or written between you 12 and the South Delta, were reflective of the true state of 13 affairs? 14 MR. PLOSS: I don't have any reason to doubt that. 15 MR. HERRICK: Did you take them as valid when they 16 were presented to you as complaints? 17 MR. PLOSS: Yes. 18 MR. HERRICK: Mr. Ploss, I don't know maybe we're out 19 of your area of expertise, you testified that a low water 20 level was separate from whether there was a sufficient 21 amount of water in the channel for diverters. Is that an 22 accurate statement? 23 MR. PLOSS: Yes. 24 MR. HERRICK: Do you know that to be true, or is that 25 a guesstimate on your part? CAPITOL REPORTERS (916) 923-5447 564 1 MR. PLOSS: I have no evidence that there is a 2 relationship between low water levels and the water supply. 3 MR. HERRICK: Did the complaints that you received 4 indicate that the diverters were unable to divert 5 sufficient amounts? 6 MR. PLOSS: As I believe the communications that 7 were made with us dealt with low water levels. I don't 8 recall if they dealt with water supply. 9 MR. HERRICK: The biological opinions for the Delta 10 smelt and the winter-run salmon I believe you said that 11 they do not impose any conditions upon the operation of New 12 Melones; is that correct? 13 MR. PLOSS: That's correct. 14 MR. HERRICK: So in the operation of New Melones it's 15 a voluntary decision on the part of the Bureau how to 16 adjust New Melones operations in order to comply with those 17 biological opinions; is that correct? 18 MR. PLOSS: That's correct. 19 MR. HERRICK: That's all the questions I have. Thank 20 you, Mr. Chairman. 21 C.O. CAFFREY: All right. Thank you, Mr. Herrick. 22 Is there any recross by any of the parties? All right, 23 then I believe if I'm up to speed here that completes the 24 presentation of your case in chief, Mr. Herrick, is that 25 not so? CAPITOL REPORTERS (916) 923-5447 565 1 MR. HERRICK: Yes, Mr. Chairman. 2 C.O. CAFFREY: Would you like to offer your exhibits? 3 MR. HERRICK: I'd like to move for the exhibits. 4 I'll go through a few of them, because there will be a 5 little confusion here. 6 C.O. CAFFREY: Okay. Please, reiterate them for us. 7 MR. HERRICK: The testimony of Alex Hildebrand is 27, 8 but his testimony is Phase I and II. So if the Board will 9 allow, I'll just wait to move that into evidence during 10 Phase II, because it's one document. If that's okay, 11 otherwise, I'll just move for half the document, or 12 whatever the Board thinks is appropriate. 13 C.O. CAFFREY: I think we can accept it in Phase II 14 unless there's an objection. 15 MS. LEIDIGH: Yeah. 16 C.O. CAFFREY: It's all one hearing record. 17 MR. HERRICK: And then I'll go through the other ones 18 that we're asking to be put in evidence now. 11 and 12 19 it's a cover letter -- excuse me, 11 is a cover letter 20 regarding the Lodermilk (phonetic) memo which deals with 21 the operation of the barriers; 13 is the memo itself; 12 is 22 the SJRO study regarding recirculation; 14 through 21 are 23 exhibits previously submitted in WR 95-6 hearings and the 24 '95 plan referencing Alex Hildebrand's testimony regarding 25 the salt problem. CAPITOL REPORTERS (916) 923-5447 566 1 Twenty-two is the cover letter and channel 2 depletion amounts for the South Delta; 23 is the Bureau's 3 interim operation plan for New Melones; 25 included the 4 pictures from Old and Middle River; 26 are the 5 correspondence regarding makeup pumping under WR 95-6; 28 6 are the qualifications of Alex Hildebrand; 30 are the 7 qualifications of Lowell Ploss. I believe they'll be 8 submitted later, so I don't think they'll object. They 9 provided those qualifications to us. 31, 32, and 33 are 10 the testimonies of Mr. Robinson, Solomon, and Ferguson 11 (phonetic). And those would be all the exhibits that we 12 would offer into evidence at this stage. 13 C.O. CAFFREY: All right. Thank you, Mr. Herrick. 14 Is there any objection to acceptance into the record of 15 Mr. Herrick's exhibits as he reiterated them with the 16 exception of the first one, which number I forget, which 17 will be taken in Phase II? 18 Mr. Birmingham? 19 MR. BIRMINGHAM: I object to the introduction of 20 Exhibit 23 on the grounds that it lacks foundation. 21 C.O. CAFFREY: And 23 was what, again? Somebody help 22 me with the number. 23 MR. HERRICK: 23 is the Bureau's New Melones interim 24 operation plan which we just discussed with Mr. Ploss as 25 the Chief of Operations of the group that did the plan. I CAPITOL REPORTERS (916) 923-5447 567 1 think that's -- I think that's well supported and confirmed 2 by Mr. Ploss. I would argue that it should come in. 3 C.O. CAFFREY: All right. Thank you. And, 4 Mr. Birmingham, did you have something else? 5 MR. BIRMINGHAM: Yes, in fact, what Mr. Ploss 6 testified to was that Exhibit 23 was the summary of a model 7 run. He couldn't tell us which model run. Therefore, he 8 can't tell us the assumptions on which the model run was 9 based. Mr. Hildebrand was asked similar questions. He 10 could not identify the assumptions on which the model run 11 was based. It is a summary of some data, but there's no 12 explanation of how the data were complied. And I think 13 there's no foundation for its admission. 14 C.O. CAFFREY: All right. Thank you very much, 15 Mr. Birmingham. You have very eloquently stated your 16 objection on the record so that it's there for all the 17 Board Members to see. I'm going to overrule your objection 18 because, again, as I generally state, it goes to the Board 19 Members to give it the weight of evidence as we examine the 20 record and look at the objections and otherwise. 21 Mr. Brandt? 22 MR. BRANDT: Just for the record, I would like to 23 join his objection even though it has been overruled. 24 C.O. CAFFREY: Duly noted, Mr. Brandt. And 25 Mr. O'Laughlin? CAPITOL REPORTERS (916) 923-5447 568 1 MR. O'LAUGHLIN: I would like to object to the 2 introduction of Exhibit Number 12. 3 C.O. CAFFREY: Which is? 4 MR. O'LAUGHLIN: The SJRIO studies of the San Joaquin 5 River recirculation. Neither Mr. Hildebrand nor any other 6 witness put on by South Delta Water Agency could testify as 7 to that document, lay any proper foundation for that 8 document. It is not being offered under any other rule of 9 evidence that I know of. 10 So unless somebody can come in and verify that 11 that's true and correct and that they looked at the report, 12 or that they're doing something with it, it shouldn't go in 13 the record. And, secondly, if he's relying on it as an 14 expert witness in giving an opinion he can do so, but it's 15 hearsay and it should not be allowed to be entered into the 16 record at this time until the proper foundation is laid. 17 C.O. CAFFREY: Thank you, Mr. O'Laughlin. 18 Mr. Herrick, you wish to respond? 19 MR. HERRICK: Yes, thank you, Mr. Chairman. 20 Mr. Hildebrand in his testimony clearly explained where the 21 report came from, that he participated in the development 22 of the report. It was offered to show a reasonable 23 alternative rather than the continuation of WR 95-6. 24 I think by definition that means that the foundation was 25 laid. CAPITOL REPORTERS (916) 923-5447 569 1 I know parties don't like to hear 2 counterproposals, but we think it's all relevant. And I 3 think the Board can give the proper weight to it. This is 4 not the phase that examines at length the recirculation 5 proposal, but it was relevant to the arguments in this 6 phase. And so I believe that it should be accepted as 7 evidence. 8 C.O. CAFFREY: Well, as stated -- or at least as we 9 alluded to in our written instructions, some of these areas 10 get pretty gray. I note your objection, Mr. O'Laughlin, 11 it's eloquently in the record, but I'm going to rule as I 12 ruled on the previous objection for the previous question 13 of the rule of evidence. I'm going to leave it in the 14 record. And without any other objections I will accept 15 Mr. Herrick's exhibits with the exception of 27, thank you, 16 which we will consider it in Phase II. 17 MR. HERRICK: And, of course, there are other 18 exhibits on our list that will be introduced in later 19 phrases. 20 C.O. CAFFREY: Right, we understand that, 21 Mr. Herrick. Thank you, sir. All right, then, that 22 completes the presentation of the case in chief of 23 Mr. Herrick for the South Delta Water Agency. I believe 24 now, Mr. Birmingham, you have representation for case in 25 chief for two parties; is that correct? CAPITOL REPORTERS (916) 923-5447 570 1 MR. BIRMINGHAM: That's correct. 2 C.O. CAFFREY: Are you going to be presenting two 3 separate cases in chief, or -- 4 MR. BIRMINGHAM: No. They'll be presented 5 simultaneously. 6 C.O. CAFFREY: All right. Thank you, sir. Good 7 morning, again. 8 MR. BIRMINGHAM: At this time the San Luis 9 Delta-Mendota Water Authority and Westlands Water District 10 would like to call Tom Boardman. Mr. Boardman was present 11 on the first day of the hearing and I believe has taken the 12 oath. 13 C.O. CAFFREY: Good morning, sir. 14 ---oOo--- 15 CASE IN CHIEF 16 BY SAN LUIS DELTA-MENDOTA WATER AUTHORITY 17 AND WESTLANDS WATER DISTRICT 18 BY THOMAS W. BIRMINGHAM 19 MR. BIRMINGHAM: Good morning, Mr. Boardman. 20 Mr. Boardman, would you state your full name and spell it 21 for the record. 22 MR. BOARDMAN: Thomas A. Boardman, B-O-A-R-D-M-A-N. 23 MR. BIRMINGHAM: And, Mr. Boardman, are you familiar 24 with the San Luis Delta-Mendota Water Authority Exhibit 1? 25 MR. BOARDMAN: Yes, I am. CAPITOL REPORTERS (916) 923-5447 571 1 MR. BIRMINGHAM: Is that a statement of your 2 qualifications? 3 MR. BOARDMAN: That's correct. 4 MR. BIRMINGHAM: And are you familiar with Exhibit 5 San Luis Delta-Mendota Water Authority 5? 6 MR. BOARDMAN: Let's see, I've got 6 here in front of 7 me. 8 MR. BIRMINGHAM: I believe what you have is a 9 Westlands Water District Exhibit 6; is that correct? Is 10 that what you have? 11 MR. BOARDMAN: Yes. Yes, I am familiar with Exhibit 12 5. 13 MR. BIRMINGHAM: Are San Luis Delta-Mendota Water 14 Authority Exhibit 5 and Westlands Water District Exhibit 6 15 copies of your testimony regarding Phase I of this hearing? 16 MR. BOARDMAN: That's correct. 17 MR. BIRMINGHAM: Would you, please, take a moment and 18 summarize the testimony that's been marked for 19 identification as San Luis and Delta-Mendota Water Exhibit 20 5 and Westlands Exhibit 6. 21 MR. BOARDMAN: Okay. To summarize my written 22 testimony, I determine the potential impact of the 23 extension of Water Rights 95-6 on the water supply of 24 Westlands and other member agencies of the authority. I 25 quantified the impacts using the Department of Water CAPITOL REPORTERS (916) 923-5447 572 1 Resources Project Operations Planning Model entitled 2 "DWRSIM." 3 More specifically, my work involved the use of two 4 model simulations that were developed by DWR staff using 5 DWRSIM. The first model run simulated project operations 6 under D-1485 1993 winter-run biological opinion and the 7 1994 Delta smelt biological opinion. Now, this run 8 essentially simulates the operational constraints that were 9 in place prior to the 1995 Water Quality Control Plan and 10 WR 95-6. The second model run simulated the project 11 operations under the 1995 Water Quality Control Plan and 12 Water Rights -- or WR 95-6. 13 Using the two DWR modeling simulations I 14 determined that an extension of WR 95-6 would result in an 15 average reduction of about 90,000 acre feet in annual 16 exports from the Delta for CVP contractors. In below 17 normal, dry, and critical years average reductions in CVP 18 exports from the Delta range from 104,000 to 282,000 acre 19 feet. And -- 20 C.O. CAFFREY: What was that second number? 21 MR. BOARDMAN: 282,000. 22 C.O. CAFFREY: Thank you. 23 MR. BOARDMAN: The annual CVP south of the Delta 24 supply impacts could be in excess of 600,000 acre feet 25 during a critically dry year. Now, DWRSIM is incapable of CAPITOL REPORTERS (916) 923-5447 573 1 estimating reductions in exports due to take limits 2 contained in the biological opinions for winter-run salmon 3 and Delta smelt. Therefore, the CVP impacts stated in my 4 testimony do not include CVP export reductions that may 5 result from take limits. 6 Without the assurances of the kind that are 7 contained in the Bay-Delta Accord which allow makeup 8 pumping for reduced pumping resulting from take limits, it 9 is likely that export reductions would be greater than 10 those contained in the tables shown in my written 11 testimony. 12 MR. BIRMINGHAM: Thank you very much, Mr. Boardman. 13 That concludes Mr. Boardman's presentation. 14 C.O. CAFFREY: All right. So we're ready for 15 cross-examination. Anybody wishing to cross-examine this 16 witness? Mr. Nomellini, anybody else? And Mr. Herrick, he 17 puts on his coat. 18 ---oOo--- 19 CROSS-EXAMINATION OF SAN LUIS DELTA-MENDOTA WATER AUTHORITY 20 AND WESTLANDS WATER DISTRICT 21 BY CENTRAL DELTA WATER AGENCY 22 BY DANTE JOHN NOMELLINI 23 MR. NOMELLINI: For the record, Dante John Nomellini 24 on behalf of the Delta parties. Mr. Boardman, you'd 25 indicated that the base run used in your comparison in your CAPITOL REPORTERS (916) 923-5447 574 1 testimony was run number 467 of DWRSIM; is that correct? 2 MR. BOARDMAN: That's correct. 3 MR. NOMELLINI: And you pointed out that that was 4 D-1485 plus the 1993 winter-run chinook salmon biological 5 opinion and the 1994 Delta smelt biological opinion; is 6 that correct? 7 MR. BOARDMAN: Right. 8 MR. NOMELLINI: Have you looked at the assumptions 9 set forth for the particular model 467? 10 MR. BOARDMAN: Yes. 11 MR. NOMELLINI: And I take it you disagree that 12 the -- that the actual model was just D-1485 Delta 13 standards plus selected upstream ESA requirements and CVPIA 14 flow criteria? 15 MR. BOARDMAN: Could you repeat the -- that question? 16 MR. NOMELLINI: Yeah. Let me read a statement and 17 see if you agree with it, maybe to clarify. The assumption 18 for 467, DWRSIM, states: 19 (reading): 20 "In addition to meeting D-1485 Delta standards, 21 base study 467 meets selected upstream ESA 22 requirements and CVPIA flow criteria." 23 Do you agree with that statement? 24 MR. BOARDMAN: That's correct. 25 MR. NOMELLINI: All right. Now, do you also agree CAPITOL REPORTERS (916) 923-5447 575 1 that it does not include 1994 Delta smelt biological 2 opinion? 3 MR. BOARDMAN: Well, I think it would contain the '94 4 Delta smelt opinion in the sense of the pulse flow period 5 at that aspect of the biological opinion. 6 MR. NOMELLINI: But not all of it? 7 MR. BOARDMAN: No. 8 MR. NOMELLINI: Okay. Now, with regard to the take 9 limits, you indicated in your testimony that the take 10 limits would be an additional burden on the project 11 exports. Is that correct? 12 MR. BOARDMAN: That's correct. 13 MR. NOMELLINI: And it was not modeled? 14 MR. BOARDMAN: That's correct. 15 MR. NOMELLINI: All right. Were there take limits 16 before the imposition of 95-6? 17 MR. BOARDMAN: Yes. 18 MR. NOMELLINI: So, likewise, the impact in the 19 before condition would not be reflected in these studies; 20 is that correct? 21 MR. BOARDMAN: That's correct. 22 MR. NOMELLINI: Now, with regard to shortages in 23 Westlands, are you familiar with the shortages in contract 24 deliveries from the Bureau to the Westlands? 25 MR. BOARDMAN: Yes, I am. CAPITOL REPORTERS (916) 923-5447 576 1 MR. NOMELLINI: Did Westlands suffer any shortages in 2 deliveries for 1997? 3 MR. BOARDMAN: Yes, they did. 4 MR. NOMELLINI: All right. And what quantity would 5 that be? 6 MR. BOARDMAN: Five percent supplied, which would be 7 five percent of their contract supply and I don't have the 8 number. 9 MR. NOMELLINI: All right. How about for 1996? 10 MR. BOARDMAN: 1996 I believe that was a 90 percent 11 supply -- excuse me. '97 was a 90-percent supply. And '96 12 was a 95-percent supply. 13 MR. NOMELLINI: Does the Westlands Water District 14 provide water to any other parties outside its service 15 area? 16 MR. BOARDMAN: Not that I'm aware of. 17 MR. NOMELLINI: In your testimony -- okay, strike 18 that. 19 With regard to deliveries to the Westland's Water 20 District, do any of those deliveries go outside the 21 permitted places of use for the Bureau permits? 22 MR. BOARDMAN: I couldn't comment on that. I'm not 23 familiar with that. 24 MR. NOMELLINI: All right. With regard to the 25 interim relationship between the Delta Accord and 95-6, you CAPITOL REPORTERS (916) 923-5447 577 1 indicated that in your testimony that without those 2 restraints there would be greater reductions in deliveries 3 to Westlands. Is that correct? 4 MR. BOARDMAN: There could be. 5 MR. NOMELLINI: Okay. Now, what in Order 95-6 6 reduces the amount of reduction to the Westlands Water 7 District? 8 MR. BIRMINGHAM: I'm going to object to the question 9 on the grounds that it's ambiguous. 10 MR. NOMELLINI: Did you understand my question? 11 MR. BOARDMAN: Not entirely. 12 MR. NOMELLINI: Okay. What -- 13 C.O. CAFFREY: Would you -- 14 MR. NOMELLINI: I'll rephrase. 15 C.O. CAFFREY: Thank you, sir. 16 MR. NOMELLINI: What provisions in 95-6 would you 17 want added to 95-6? What provision, excuse me, in the 18 Delta Accord would you want added to 95-6 to protect the 19 level of exports to Westlands? 20 MR. BOARDMAN: Well, as I understand it 95-6 allows 21 for makeup pumping resulting from possible take problems. 22 Whereas, the Water Quality Control Plan does not. And 23 that's a technical person's view of that. 24 MR. NOMELLINI: Okay. But with regard to the Delta 25 Accord, is there anything in that that you think ought to CAPITOL REPORTERS (916) 923-5447 578 1 be brought forward in 95-6 that's consistent with your 2 testimony here on the need to bring that forward? 3 MR. BOARDMAN: Is there anything in the -- in the 4 Accord that would be needed to be, or could be, or should 5 be brought forward? 6 MR. NOMELLINI: That you would want forwarded into a 7 continuation of 95-6. 8 MR. BOARDMAN: Well, I've treated the Accord and 9 95-6, again from a modeling perspective, as almost one in 10 the same. 11 MR. NOMELLINI: That's all I have. 12 C.O. CAFFREY: I want to ask you for the record and 13 for my own understanding, when you refer to the "Delta 14 Accord" what specifically do you mean? 15 MR. NOMELLINI: The December 15th, 1994, Principles 16 Agreement. 17 C.O. CAFFREY: Principles Agreement, thank you. The 18 Accord is kind of a generic term that is used a number of 19 ways from time to time. Thank you for clarifying that. 20 MR. NOMELLINI: That's all I have. Thank you. 21 C.O. CAFFREY: Thank you. Mr. Herrick. 22 // 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 579 1 ---oOo--- 2 CROSS-EXAMINATION OF SAN LUIS DELTA-MENDOTA WATER AUTHORITY 3 AND WESTLANDS WATER DISTRICT 4 BY SOUTH DELTA WATER AGENCY 5 BY JOHN HERRICK 6 MR. HERRICK: John Herrick, South Delta Water 7 Authority Agency. Mr. Boardman, what is it that you're -- 8 are you asking the Board to do something specifically with 9 regard to WR 95-6? 10 MR. BIRMINGHAM: Objection. This witness is offered 11 as an expert modeler. He's not offered as a person who's 12 stating a policy position on behalf of either Westlands or 13 the San Luis and Delta-Mendota Water Authority. 14 C.O. CAFFREY: Sustained. 15 MR. HERRICK: Are you offering testimony as to what 16 conditions should be added to, or amended to WR 95-6 if it 17 is extended, that order? 18 MR. BOARDMAN: I am stating the impacts of 95-6 19 compared to D-1485 and the two biological opinions. 20 MR. HERRICK: Okay. And, again, I'm not trying to 21 get him to make policy statements, but is it -- is it -- 22 are you offering your testimony to reinforce makeup pumping 23 as part of any continued order? 24 MR. BOARDMAN: I'm stating the impacts of 95-6 and 25 how it compares to the biological opinions in D-1485. CAPITOL REPORTERS (916) 923-5447 580 1 I'm -- I'm not proposing anything in my testimony that I'm 2 aware of. 3 MR. HERRICK: Okay. And your -- your evaluation is 4 of 95-6 and D-1485, or D-1485 plus the biological opinions? 5 MR. BOARDMAN: I'm sorry, could you repeat that? 6 MR. HERRICK: Your analysis compared a base case to 7 the implementation of 95-6; is that correct? 8 MR. BOARDMAN: That's correct. 9 MR. HERRICK: And your base case is D-1485, or is it 10 D-1485 plus the biological opinions? 11 MR. BOARDMAN: The second, biological opinions plus 12 D-1485. 13 MR. HERRICK: Do you have an understanding as to 14 whether or not that was the base case in the development of 15 the '95 plan on which WR 95-6 was also based? 16 MR. BOARDMAN: To my knowledge that's correct. 17 MR. HERRICK: That it was the same base case? 18 MR. BOARDMAN: That's correct. 19 MR. HERRICK: Did your analysis take into account any 20 potential harms to other users of water under the operation 21 of 95-6? 22 MR. BOARDMAN: None that I'm aware of. 23 MR. HERRICK: I don't have any further questions. 24 Thank you. 25 C.O. CAFFREY: All right. Thank you, Mr. Herrick. CAPITOL REPORTERS (916) 923-5447 581 1 Mr. Birmingham, do you have any redirect? 2 MR. BIRMINGHAM: No, I do not. 3 C.O. CAFFREY: No redirect. Was Mr. Nelson your only 4 other witness and you did bring him today? 5 MR. BIRMINGHAM: Yes, he was. So at this time I 6 would like to move for the admission of San Luis and 7 Delta-Mendota Water Exhibit 1, statement of Mr. Boardman's 8 qualifications; Exhibit 5 which was his testimony; and 9 Exhibit 6 which is Mr. Nelson's testimony; and Westlands 10 Exhibit 6 which is Mr. Boardman's testimony. 11 C.O. CAFFREY: Is there any objection to the 12 acceptance of those exhibits as iterated by Mr. Birmingham? 13 Seeing and hearing no objection they are accepted, sir. 14 MR. BIRMINGHAM: Thank you very much. 15 C.O. CAFFREY: Thank you very much. It's nice to 16 have someone double-checking me. Have we reached the point 17 of taking offers of rebuttal, Mr. Stubchaer? 18 C.O. STUBCHAER: I think so. 19 C.O. CAFFREY: I think -- does counsel have this at 20 any other place in the procedure? 21 MS. LEIDIGH: No, we're done. We're done with 22 direct. So we're ready for rebuttal. 23 C.O. CAFFREY: Is anybody prepared to present 24 rebuttal testimony? Is anybody wishing to present rebuttal 25 testimony in this Phase I proceeding? CAPITOL REPORTERS (916) 923-5447 582 1 MR. BIRMINGHAM: I -- 2 C.O. CAFFREY: Mr. Birmingham? 3 MR. BIRMINGHAM: I will be prepared to present 4 rebuttal testimony at 1 o'clock. 5 C.O. CAFFREY: At 1 o'clock. Does anybody else wish 6 to offer rebuttal testimony in this proceeding for Phase I, 7 I'll ask the question, again? All right. Then, why don't 8 we -- Mr. Birmingham? 9 MR. BIRMINGHAM: Perhaps, for the convenience of the 10 parties I can describe very briefly what the rebuttal will 11 entail, the time I expect it to entail. 12 C.O. CAFFREY: Why don't you come forward. 13 MR. BIRMINGHAM: I intend to call one rebuttal 14 witness a William Johnston who will testify in rebuttal to 15 testimony offered by the Central Delta Water Agency, in 16 particular, Mr. Zuckerman's testimony. I think that the 17 direct testimony should take no more than 15 minutes. 18 C.O. CAFFREY: All right. Thank you, sir. Of 19 course, we have opportunities for cross-examination and 20 redirect, rebuttal, and then recross -- 21 MR. BIRMINGHAM: But Mr. Johnston is so knowledgeable 22 in this area I'm confident that no one will want to 23 cross-examine. 24 C.O. CAFFREY: All right. Mr. Herrick? 25 MR. HERRICK: If it's not too late, South Delta would CAPITOL REPORTERS (916) 923-5447 583 1 like to put on Alex Hildebrand for some rebuttal testimony 2 and it will be extremely brief, extremely brief. 3 MEMBER BROWN: Have you talked to Alex about this? 4 MR. HERRICK: Always. 5 C.O. CAFFREY: All right. It looks like we will have 6 two rebuttal testimony presentations this afternoon. And 7 Mr. O'Laughlin raises his hand, is this going to be three? 8 MR. O'LAUGHLIN: No. Are we going to, then, if we 9 finish rebuttal testimony in phase -- in the first phase 10 are we going to have closing argument today, or are we 11 going to then go and address the motion that was made by 12 the San Joaquin River Group Authority? 13 C.O. CAFFREY: Well, were we planning on handling 14 closing arguments in briefs? We will discuss a date 15 certain for you to submit closing argument in briefings 16 rather than to do an oral presentation. That's what we use 17 as a style of the Water Board quite often. And that would 18 certainly be our preference. 19 MR. O'LAUGHLIN: So we may get to the motions this 20 afternoon then? 21 C.O. CAFFREY: Well, frankly, here's where I'm 22 inclined. If we start at 1:00 and we get finished with 23 Phase I, it will probably take, if there's any 24 cross-examination at all, it will probably take an hour, 25 maybe two. We have three presentations. I think I'd be CAPITOL REPORTERS (916) 923-5447 584 1 inclined to just recess for the afternoon and come back and 2 start fresh in the morning, but I certainly would seek 3 advice from my fellow Board Members. 4 MEMBER BROWN: I agree. 5 C.O. CAFFREY: I think it just gives everybody a 6 little breathing space to get their thoughts together so 7 you could be fired up and ready to go tomorrow morning, 8 Mr. O'Laughlin. 9 MR. O'LAUGHLIN: Well, the only reason I raise that 10 is I realize that -- I don't want to belabor the point, I 11 realize the Board wants a spacing issue, but there's going 12 to -- 13 MR. NOMELLINI: Can you speak up? 14 MR. O'LAUGHLIN: Yes. Sorry. 15 C.O. CAFFREY: In fact, if you want to come to the 16 mic, Mr. O'Laughlin, why don't you do that. 17 MR. O'LAUGHLIN: Mr. Chairman, I would be inclined to 18 agree with the position of the Board about delaying until 19 tomorrow if we finish early today. However, the problem is 20 that I have witnesses, I have a case in chief, an 21 affirmative case to present, the ruling on your motion, or 22 the ruling that the Board may make on the motion will have 23 an impact on how I schedule witnesses and present 24 parties -- those individuals to the Board. 25 And the problem is if we start tomorrow, my CAPITOL REPORTERS (916) 923-5447 585 1 assumption is that the hearing on the motion is going to 2 take some time based on the voluminous volume of response 3 briefs that were made and parties wanting to be heard. And 4 not only that, I think we need a ruling before we start 5 Phase II. 6 So I would -- I would request to the Board that if 7 we do have an opportunity today to begin an earnest 8 dialogue on the motion that we start that today, because 9 that will spill in until tomorrow and we still need 10 something to go forward with later on. 11 C.O. CAFFREY: Let me accommodate you in this way, 12 because I think you raise some important points in having 13 enough reasonable time to prepare it. I think most of the 14 Board Members would -- believe it or not this is not the 15 only thing that the Board Members are doing, as important 16 it is, it helps us to have a little hiatus from time to 17 time for a couple of hours. 18 But what I intend to do for your information and 19 everybody's information is to make a ruling. After we hear 20 the motions and the arguments we will recess and we will 21 provide a written ruling hopefully that will offer some 22 clarity. And that may be that we would have to recess 23 again after all the arguments are made with regard to the 24 motion. Of course, it does mean that we'll have to make a 25 ruling and then we can come back at a later date, maybe CAPITOL REPORTERS (916) 923-5447 586 1 another 24 hours, or whatever is required to start the 2 cases in chief. So there may be a couple of hiatuses here. 3 We have a lot of days scheduled. And we have a lot of days 4 that we have scheduled that we haven't told you about yet. 5 MR. O'LAUGHLIN: That's what I'm afraid of. 6 C.O. CAFFREY: Well, we want to get this right and it 7 may take a little time. We want to make sure that all of 8 you are treated fairly and that we're going to try our 9 darnedest not to jam you all. I think the rulings that I 10 have made thus far have been -- for Mr. Sexton we've 11 delayed the submission of evidence for Phase V. 12 We had another request that came very, very late 13 for another phase. And the reason we didn't rule on that 14 one and others was because it just came so late it would 15 not be fair for people who already have exhibits in transit 16 to us. So, nonetheless, we try to accommodate as best we 17 can to keep this thing on some reasonable schedule. 18 So let us get into this afternoon, Mr. O'Laughlin, 19 see where it takes us. And then we would decide -- I'm 20 pretty certain that we wouldn't go beyond the closure of 21 Phase I today. But when we start the arguments tomorrow, 22 then when we're done hearing the arguments on your motion 23 then we will probably recess again so that we can write a 24 ruling and then come back at some date certain to -- for 25 all to present their cases. CAPITOL REPORTERS (916) 923-5447 587 1 Does anyone wish to comment on that on the Board? 2 I want to be as democratic as I possibly can be. 3 Mr. Hildebrand has his hand up. 4 MR. HILDEBRAND: I just want to ask this: Does that 5 mean that there probably will not be a session on Thursday? 6 MS. LEIDIGH: We could come in on Thursday. 7 C.O. CAFFREY: I don't know, we could come in at noon 8 on Thursday. I don't know. I don't know how long it's 9 going to take for the arguments on Mr. O'Laughlin's motion. 10 If they take two hours, that could mean that we would 11 recess for the rest of -- what's today, recess for the rest 12 of Wednesday and come back at say noon Thursday. We would 13 have to have some discussion on that. 14 I'm sorry, Ms. Leidigh, did you have something? 15 MS. LEIDIGH: We could come at 9 o'clock on Thursday. 16 I don't see any problem. 17 C.O. CAFFREY: It really depends on what evolves 18 here. 19 MR. HILDEBRAND: I ask the question because as a 20 member of BDAC I'm suppose to be in Oakland on Thursday. 21 C.O. CAFFREY: I see. I'm sure we're going to bump 22 up against -- we'll have some discussion on that later. 23 And if it requires that we not meet on Thursday for the 24 good of the cause and everybody involved that's a 25 possibility. I'm not ready to rule on that yet. CAPITOL REPORTERS (916) 923-5447 588 1 MR. ROBBINS: Mr. Caffrey? 2 C.O. CAFFREY: Mr. Robbins. 3 MR. ROBBINS: Thank you. Just in that same light in 4 terms of scheduling, we have -- the San Joaquin River Group 5 is aware that several legislators are scheduled to be here 6 tomorrow morning at 9:00 to make policy statements. We had 7 assumed that we might commence Phase II. I would 8 appreciate an indication from the Board if they would be 9 willing to accept that testimony at 9:00 tomorrow. Given 10 the state of the budget hearings it's very difficult with 11 their schedule -- 12 C.O. CAFFREY: Our rules for this proceeding allow 13 for policy statements at any time in any phase related to 14 any phase whether it's that phase that is in question or 15 not. I believe that's what we have done. And, in fact, I 16 do have a request here from David Fullerton to make a 17 policy statement right now; is that correct? 18 MS. WHITNEY: Yes. 19 C.O. CAFFREY: I'm going to allow Mr. Fullerton in a 20 couple minutes as soon as we finish this discussion to make 21 that policy statement. Ms. Leidigh? 22 MS. LEIDIGH: Well, I don't think that's what our 23 notice said. 24 C.O. CAFFREY: Well, it does now. 25 MS. LEIDIGH: I think this is a change. I think this CAPITOL REPORTERS (916) 923-5447 589 1 is a change and perhaps we should provide it in writing to 2 other parties. 3 C.O. CAFFREY: I thought our procedure allowed for 4 policy statements -- 5 MS. LEIDIGH: At the beginning. 6 C.O. CAFFREY: -- at the beginning of phases. 7 MS. LEIDIGH: At the beginning of phrases, yeah. 8 C.O. CAFFREY: I think it also allowed for 9 accommodations for policy statements in general, did it 10 not? If I'm wrong I stand corrected. 11 MS. LEIDIGH: It did not. 12 C.O. CAFFREY: If I'm wrong I stand corrected, but 13 nonetheless I'm going to make an exception for 14 Mr. Fullerton who has to leave. 15 MR. ROBBINS: And we will also keep in contact with 16 our legislators. 17 C.O. CAFFREY: I will also allow the legislative 18 members to come in and make their policy statements. You 19 say you have them coming first thing tomorrow morning? 20 MR. ROBBINS: 9:00 a.m. tomorrow morning. 21 C.O. CAFFREY: Do you know how many there are? 22 MR. ROBBINS: I believe there are four. 23 C.O. CAFFREY: All right, we'll hear from them. They 24 understand there's a five-minute limit? 25 MR. ROBBINS: Yes, they do. CAPITOL REPORTERS (916) 923-5447 590 1 C.O. CAFFREY: I'm sure you will remind them, make 2 sure they are. A brand new thought for them, meaning no 3 disrespect. They confirmed me twice, I know they may have 4 second thoughts. 5 Mr. Fullerton had his hand up and then Mr. Candee. 6 And before we hear from them, Ms. Leidigh, has a question. 7 Ms. Leidigh who is always diligently keeping me honest and 8 pure reminds me that the purpose of Mr. Fullerton's policy 9 statement is specific to Phase II. And our normal 10 procedure is that he would be allowed to make it at the 11 beginning of Phase II. But in this instance he has a 12 conflict and cannot be here for Phase II. 13 And so I'm going to make an exception and allow 14 him to make his five minute or less policy statement now. 15 That is the rule on the timing, Mr. Fullerton. That does 16 not limit you, by the way, to submit a lengthier statement 17 if it were read and submit that into the record, but there 18 is a five-minute limitation on policy statements. 19 MR. FULLERTON: I just wanted to clarify, this isn't 20 our opening statement, but it's from a party, NHI, that is 21 not intending to supply witnesses during Phase II. It's a 22 slightly different category. 23 C.O. CAFFREY: It's an opening statement and not a 24 policy statement? 25 MR. FULLERTON: I believe that was allowed for in the CAPITOL REPORTERS (916) 923-5447 591 1 notice. 2 MS. LEIDIGH: That's allowable in the notice. 3 C.O. CAFFREY: All right. I'm reminded by 4 Ms. Leidigh that that's allowable as well. What's the 5 timing on it, is there one? 6 MS. LEIDIGH: The notice does not state an amount of 7 time for opening statements by parties who are not going to 8 present a case in chief. So he could, you know, make his 9 presentation. I assume by this that he is saying that NHI 10 is not going to present a case in chief in Phase II? 11 MR. FULLERTON: Correct. 12 MS. LEIDIGH: Okay. 13 C.O. CAFFREY: How much time do you need, 14 Mr. Fullerton? 15 MR. FULLERTON: Well, I was hoping to read this 16 document which it would take longer than five minutes, it's 17 more like 15 minutes. 18 C.O. CAFFREY: Okay, then we'll probably have to do 19 it after lunch. And when we come back after lunch, my 20 apologies to Mr. Birmingham and Mr. Herrick and whoever 21 else we had, we will start with Mr. Fullerton's statement, 22 in deference to him, making an exception. And then we will 23 go to you, gentlemen. 24 And, Mr. Candee, do you have -- did you have a 25 question, sir? CAPITOL REPORTERS (916) 923-5447 592 1 MR. CANDEE: Thank you, Mr. Chairman. I don't want 2 to belabor the point, but I just wanted to speak actually 3 in support of Mr. O'Laughlin's proposal that in the event 4 that the rebuttal goes more quickly this afternoon than we 5 expect and there is time to at least begin the process of 6 addressing the motions, I think that would help everyone 7 plan the next few days a little better. So I'd like to ask 8 you to keep that possibility open. 9 C.O. CAFFREY: All right. Your concern is duly noted 10 on the record. Thank you. It's ten minutes to 12:00, 11 let's be back here at 1 o'clock. Thank you. 12 (Luncheon recess.) 13 ---oOo--- 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 593 1 TUESDAY, JULY 14, 1998, 1:03 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Good afternoon and welcome back. This 5 is the continuation of Phase I. Before we start the 6 rebuttal testimony, which Mr. Birmingham and then 7 Mr. Herrick will be presenting, we are going to hear from 8 Mr. Dave Fullerton who's going to make an opening statement 9 on behalf of the Natural Heritage Institute for Phase II. 10 Do I have that right? 11 MR. FULLERTON: Correct. 12 C.O. CAFFREY: Mr. Fulton, please, come forward and 13 introduce yourself into the record and proceed, sir. 14 ---oOo--- 15 OPENING STATEMENT BY THE NATURAL HERITAGE INSTITUTE 16 BY DAVID FULLERTON 17 MR. FULLERTON: My name is David Fullerton with the 18 Natural Heritage Institute. I have 20 copies here for the 19 State Board of my opening statement. 20 C.O. CAFFREY: Thank you, sir. 21 MR. FULLERTON: Greg Thomas would like to have been 22 here but, unfortunately, he's in Washington, so I will be 23 presenting this. NHI is pleased to have this opportunity 24 to present its views on the San Joaquin River Agreement, 25 which is a product of negotiations in which NHI has CAPITOL REPORTERS (916) 923-5447 594 1 participated in since it expanded beyond the water users in 2 June of '96. 3 NHI will not be presenting testimony until Phase 4 III of the hearings. We're not opposed to the negotiation 5 of possible settlements for purposes of these water rights 6 proceedings. And, indeed, we would prefer to avoid a 7 lengthy administrative trial and probable judicial review, 8 if negotiated arrangements will fully implement the 9 environmental protections measures of the 1995 Water 10 Quality Control Plan without creating significant new 11 environmental problems, or closing the door of needed 12 restoration upstream. We expect to be in a position to 13 sign the agreement when the other parties are also in a 14 position to do so on or about March 1st of 1999 subject to 15 certain legally mandated preconditions which are 16 discussed -- I'll discuss in a minute. 17 I'd like to discuss three big areas, the first of 18 them is the San Joaquin River Agreement itself. The point 19 of the departure for these negotiations was the Letter of 20 Intent which was offered to the Board by the San Joaquin 21 River Group Authority and the export water users in May 22 1996. We found that petition unacceptable, because it 23 proposed only partial implementation of the Water Quality 24 Control Plan. However, notwithstanding our objection, the 25 Board did include this partial implementation proposal, CAPITOL REPORTERS (916) 923-5447 595 1 this flow alternative seven in the EIR. 2 The San Joaquin River Agreement is a notable 3 improvement in our view over the Letter of Intent. It has 4 the following features, first, it's now designed to be a 5 full compliance formula for the San Joaquin River portion 6 in quotes, of the 1995 Water Quality Control Plan which is 7 defined to include all San Joaquin flow and outflow 8 requirements downstream of Vernalis. 9 For the numeric April and May pulse flow objective 10 for salmon smolt survival, the agreement proposes an 11 adaptive management experiment which would test how the 12 smolt survival -- how smolt survival response to San 13 Joaquin flows and exports limitations that would vary 14 according to the previous and current year hydrologic 15 conditions. 16 Next point, this map is intended to accomplish two 17 goals. First, provide a level of environmental protection 18 in the lower San Joaquin River and Delta equivalent to the 19 San Joaquin portion of 1995 Water Quality Control Plan. 20 And, two, to develop empirical data over a 12-year period 21 that will improve the scientific basis for standard-setting 22 thereafter. 23 With respect to the spring pulse flows, the 24 agreement proposes, in effect, a12-year interim compliance 25 arrangement in lieu of immediate implementation of the CAPITOL REPORTERS (916) 923-5447 596 1 numeric objectives in the 1995 Water Quality Control Plan, 2 but with the State Board posed to issue a water rights 3 implementation order in the event the agreement falls 4 apart. 5 We wish to call to the Board's attention the 6 fragility of this settlement agreement and the consequent 7 likelihood that the State Board will have to step in. A 8 number of "off-ramps" have been constructed in this 9 agreement to keep this deal viable. For example, Section 10 6.7 allows the export interests to invoke the termination 11 procedures if they object to the export limitations in any 12 annual operating plan. 13 The agreement addresses responsibilities for 14 obtaining water quality conditions downstream of Vernalis 15 only. It does not affect responsibilities for meeting such 16 conditions upstream of Vernalis as the State Board or any 17 other regulatory body may require for any purpose such as 18 to assist in meeting the doubling standard for natural 19 production of anadromous fish. 20 In this agreement, the State -- the Bureau of 21 Reclamation assumes responsibility for achieving full 22 compliance with flow contributions provided by the SJRGA 23 per the terms of the agreement. The agreement specifies 24 certain quantities of water to be provided annually, 25 depending on the VAMP flow schedule, in exchange for fixed CAPITOL REPORTERS (916) 923-5447 597 1 annual payments. This cost is not set on a per acre-foot 2 basis. 3 The environmental parties to this agreement, and 4 we believe also the federal parties, understand this 5 arrangement to provide an unspecified block of water on an 6 uncompensated basis under the SJTGA parties' regulatory -- 7 regulatory liability to comply with the Water Quality 8 Control Plan. The flows above this unspecified block are, 9 in effect, purchased by the federal and state projects, as 10 the junior appropriators on this system, to assist them in 11 meeting their compliance responsibility. 12 This arrangement does not, in our view, concede 13 that the priorities under the appropriative rights system 14 govern the apportionment of responsibility for meeting flow 15 requirements imposed under the Federal Water Act or 16 Porter-Cologne. As NHI stated in previous testimony, we 17 believe that under United_States_versus_State_Water_ ______ ______ ______ _____ _____ 18 Resources_Control_Board, the public trust doctrine, _________ _______ _____ 19 Article X, Section 2 of the State Constitution and other 20 authorities, all diverters and exporters share that 21 responsibility irrespective of the nature of seniority of 22 their water rights. 23 The San Joaquin River Agreement proposes a basis 24 for meeting the necessary flows without the necessity of 25 submitting that legal issue for adjudication by the State CAPITOL REPORTERS (916) 923-5447 598 1 Board. However, that issue remains alive with respect to 2 other elements of the water rights proceeding for which 3 settlement proposals are not accepted by the State Board. 4 The agreement does not seek to preempt either the 5 State Board or the U.S. EPA in protecting fish and wildlife 6 resources under their respective water quality authority. 7 The agreement expressly reserves the right of parties to 8 petition for, or the State Board to initiate proceedings to 9 modify standards, or the implementation program under the 10 triennial review process. 11 The agreement also does not seek to preempt the 12 state or federal agencies responsible for protection of 13 jeopardized species. And if these agencies believe that 14 the VAMP study is likely to jeopardize the survival or 15 recovery of listed, candidate or covered species, it may 16 terminate the agreement. 17 The agreement is conditioned upon certain actions 18 by the State Board and will not go into effect until these 19 actions are taken. Under the terms of the agreement the 20 State Board must, one, make an independent determination 21 that this agreement provides environmental protection that 22 will allow the equivalent to the San Joaquin portion of the 23 1995 Water Quality Control Plan. 24 Two, expedite -- the State Board must expedite 25 further proceedings to implement the 1995 Water Quality CAPITOL REPORTERS (916) 923-5447 599 1 Control Plan. If the agreement terminates, three, the 2 State Board must enforce the commitments of the Bureau of 3 Reclamation and DWR to ensure full compliance with the 4 Water Quality Control Plan and the VAMP variation thereon. 5 Four, State Board must commit to enforce Water 6 Code Section 1707 by permitting unauthorized -- by not 7 permitting unauthorized diversion of flow. And, five, the 8 State Board must conform permits held by the SJRGA members 9 to the obligation they have undertaken in the agreement. 10 The next section I'd like to talk about is the 11 relationship between the San Joaquin River Agreement and 12 the State Board hearings. It's very important to 13 underscore that this agreement will not enter into force 14 among the parties unless and until the State Board makes a 15 finding of protective equivalency. In other words, the 16 SJRA is not a viable implementation alternative until that 17 threshold has been crossed. Logically, then, the State 18 Board must make a preliminary decision as to this matter 19 before the agreement warrants further consideration in 20 these proceedings. 21 The State Board cannot and should not proceed with 22 consideration of EIR alternatives that do not fully 23 implement the Water Quality Control Plan. We submit that 24 that threshold determination of viability of the agreement 25 should be the sole purpose of Phase II of the hearing. CAPITOL REPORTERS (916) 923-5447 600 1 If the State Board cannot or does not make a 2 threshold finding of protective equivalency at the end of 3 Phase II, the agreement expires as a viable alternative. 4 In that event, the parties to the agreement are entitled to 5 present adversarial evidence against other parties 6 regarding the allocation of responsibility for meeting the 7 Water Quality Control Plan. 8 If the agreement survives the "protective 9 equivalency" test, the State Board should then go on to 10 consider its comparative advantages and disadvantages along 11 side the other full implementation alternatives evaluated 12 in the EIR. This does not mean the State Board will or 13 must select an alternative -- or rather the agreement as 14 the best one under the statutory consideration factors for 15 a water rights decision. The State Board may well decide 16 that, in light of the EIR analysis and the evidence in the 17 hearing, that another alternative is superior and it should 18 be adopted. 19 Finally, after the best implementation alternative 20 has been selected, the Board should turn to the issue of 21 allocating responsibility among water users under that 22 alternative. If the agreement emerges as the winner, no 23 further allocation proceedings will be needed because the 24 agreement already accomplishes that. If the Board selects 25 another alternative the parties to the agreement may then, CAPITOL REPORTERS (916) 923-5447 601 1 but only then, need time to prepare an adversarial case. 2 NHI would not object holding the hearings in 3 abeyance for an additional 60 days at that point and for 4 this purpose. However, we see no reason based on fairness 5 or due process why all parties should not be entitled to 6 produce evidence on the allocation of responsibility at 7 that phase. 8 Final issue I'd like to talk about is the 9 relationship between VAMP -- the VAMP flow export patterns 10 and the State Board alternative five. In Phase III, NHI 11 will present testimony comparing modeling estimates of 12 tributary flows resulting from the ABRI alternatives to the 13 flows recommended by the U.S. Fish and Wildlife Service to 14 achieve the doubling objective of the CVPIA. 15 This is pertinent because the CVPIA goal is 16 essentially equivalent to the narrative standard and the 17 Water Quality Control Plan. The point of the testimony is 18 that the preferable EIR alternative should be the one that 19 comes closest to meeting the narrative standard which has 20 the same legal force and effect as the numerical standard. 21 With respect to the San Joaquin tributaries, this 22 analysis shows that all the alternatives are roughly 23 equivalent in contributing to AFRP requirements except 24 alternative five, which is markedly superior. So the 25 question arises, how do we reconcile NHI's qualified CAPITOL REPORTERS (916) 923-5447 602 1 support for the agreement with what would be my testimony 2 that alternative five is superior to other alternatives 3 with respect to the contribution of the AFRP flow 4 requirements, or flow recommendations? 5 This is a proceeding to implement water quality 6 conditions prescribed for the Bay-Delta system downstream 7 of Vernalis. It does not address conditions upstream of 8 Vernalis. The physical, chemical, and biological 9 conditions that must be attained in the Bay-Delta system 10 are prescribed as both numeric inflow requirements and a 11 narrative objective of doubling natural production of 12 salmon. 13 The State Board has declined, over NHI's protest, 14 to define a distinct implementation program for the 15 narrative standard. The rationale is that the current 16 state of the biophysical understanding of the Bay-Delta 17 system allows the State Board to assume that attainment of 18 the numeric standards may be achieved -- or attainment of 19 the numeric standards may also achieve the narrative 20 standard. 21 If this proves not to be the case, the State Board 22 has pledged to develop an incremental implementation plan 23 for the narrative standard. Or to put it another way, the 24 Board's hypothesis is that the level of protection of the 25 salmon survival -- well, I'll skip over that, that's kind CAPITOL REPORTERS (916) 923-5447 603 1 of repetitive. 2 An explicit condition of the adoption of the San 3 Joaquin River Agreement is a finding by the State Board 4 that it provides environmental benefits equivalent to the 5 Vernalis flow component of the 1995 Water Quality Control 6 Plan. NHI has been relying on EPA's affirmative judgment 7 in this regard. However, the State Board's judgment will 8 be controlling as to whether this condition precedent has 9 been met and the agreement enters into force. 10 If in the judgment of the State Board the 11 agreement does not provide equivalent environmental 12 benefits, the agreement and alternative eight will 13 necessarily be rejected. If, in the judgment of the State 14 Board, the agreement does provide equivalent benefits, the 15 State Board may nevertheless select another alternative if 16 it believes it to be superior. 17 The agreement may produce equivalent salmon 18 survival benefits to the Water Quality Control Plan and to 19 other implementation alternatives which provide larger 20 tributary flows, such as alternative five, because it 21 imposes export restrictions that are more protective than 22 the Water Quality Control Plan, or that alternative. 23 Since the evidence underlying the Water Quality 24 Control Plan strongly suggests that the influence of the 25 export pumps is one of the most important limiting CAPITOL REPORTERS (916) 923-5447 604 1 functions on salmon smolt survival, this result should not 2 be surprising. The AFRP tributary flow recommendations of 3 the Fish and Wildlife Service do not take into account the 4 benefits that could accrue from more restrictive export 5 pumping rules. 6 The San Joaquin River Agreement has fail-safe 7 devices in case the biological goals, equivalent protection 8 do not prove out during the 12-year flow experiment. This 9 leaves the door open to further orders by the State Board 10 to implement the Water Quality Control Plan during the 11 12-year period in the event that the physical, chemical, or 12 biological conditions below Vernalis need to be further 13 improved to achieve that goal. 14 Meanwhile, we believe that the VAMP experiment is 15 worth running even though it may result in somewhat lower 16 flows in the San Joaquin tributaries compared to 17 alternative five, because it would, first, provide more 18 protection against the adverse impacts of the South Delta 19 pumps; and, secondly, provide more conclusive information 20 on the salmon survival responses to in and outflow 21 variations and, therefore, would put future 22 standard-settings on a more secure footing. 23 That is our opening statement. 24 C.O. CAFFREY: All right. Thank you very much, 25 Mr. Fullerton. CAPITOL REPORTERS (916) 923-5447 605 1 MR. FULLERTON: I have additional copies. I'll put 2 those outside for people. 3 C.O. CAFFREY: Thank you. That would be very 4 helpful. 5 MR. HOWARD: Could I? 6 C.O. CAFFREY: Yes. Mr. Howard has a question for 7 you. 8 MR. HOWARD: I want to clarify one thing, 9 Mr. Fullerton. You mentioned in Phase III you'll be 10 putting on testimony comparing modeling estimates of 11 tributary flows for the eight Water Quality Control Plan 12 EIR alternatives. Phase III is the Suisun Marsh's. It 13 sounds like you would be more interested in putting that on 14 in Phase VIII. 15 MR. FULLERTON: We already submitted -- we thought 16 that we put it in the right place, if not we may have to 17 resubmit. 18 MR. HOWARD: All right. 19 C.O. CAFFREY: All right. Thank you, Mr. Fullerton. 20 I believe now we are back on our regular schedule and we 21 can now hear rebuttal testimony for Phase I. 22 Mr. Birmingham, are you prepared? 23 MR. BIRMINGHAM: Yes. 24 C.O. CAFFREY: Please come forward, sir. 25 MR. BIRMINGHAM: At this time Westlands Water CAPITOL REPORTERS (916) 923-5447 606 1 District would like to call William R. Johnston. 2 C.O. CAFFREY: Good afternoon, Mr. Johnston. Did you 3 take the oath? 4 MR. JOHNSTON: I did. 5 C.O. CAFFREY: Thank you, sir. Welcome. 6 ---oOo--- 7 REBUTTAL TESTIMONY BY WESTLANDS WATER DISTRICT 8 BY THOMAS W. BIRMINGHAM 9 MR. BIRMINGHAM: Mr. Johnston, I'm handing you a 10 document that's been marked for identification as 11 Westlands' Exhibit 5. Is Westlands' Exhibit 5 a statement 12 of your qualifications that was submitted in connection 13 with this proceeding, your statement of qualifications? 14 MR. JOHNSTON: Yes, it is. 15 MR. BIRMINGHAM: Mr. Johnston, when did you first 16 begin studying groundwater and drainage issues on the west 17 side of the San Joaquin Valley? 18 MR. JOHNSTON: In 1959. 19 MR. BIRMINGHAM: And for whom were you doing work for 20 at that time? 21 MR. JOHNSTON: University of California at Los 22 Angeles. 23 MR. BIRMINGHAM: Could you very briefly describe your 24 employment history since you worked for the University of 25 California at Los Angeles? CAPITOL REPORTERS (916) 923-5447 607 1 MR. JOHNSTON: I worked for UCLA for six years and 2 then I went to work for Westlands Water District and was 3 employed by Westlands through 1987. 4 MR. BIRMINGHAM: And after 1987, did you retire from 5 Westlands? 6 MR. JOHNSTON: Yes, I retired from Westlands. And I 7 have been consulting in water rights issues since then. 8 MR. BIRMINGHAM: And as part of your responsibility 9 as an employee of Westlands and as a consultant since your 10 retirement, have you reviewed current data concerning 11 groundwater conditions in the west side of the San Joaquin 12 Valley? 13 MR. JOHNSTON: Yes, I have. 14 MR. BIRMINGHAM: Mr. Chairman, I have just handed to 15 the State Board staff a document that has been marked for 16 identification as Exhibit Westlands 13. 17 C.O. CAFFREY: All right. 18 MR. BIRMINGHAM: I have additional copies for any 19 member of the audience that would like to have a copy, or I 20 hope -- 21 C.O. CAFFREY: Can you pass those -- get some 22 cooperative folks to pass those around for you. 23 MR. BIRMINGHAM: Mr. Johnston, do you have a copy of 24 Exhibit Westlands 13 in front of you? 25 MR. JOHNSTON: Yes, I do. CAPITOL REPORTERS (916) 923-5447 608 1 MR. BIRMINGHAM: What is Exhibit 13, Westlands 2 Exhibit 13? 3 MR. JOHNSTON: Exhibit 13 is Figure 23 entitled 4 "Water Table Altitude, October 1984," showing the west side 5 of the San Joaquin Valley out of the U.S. Geological Survey 6 open file report number 87-573. 7 MR. BIRMINGHAM: Have you reviewed this open file 8 report 87-573? 9 MR. JOHNSTON: Yes, I have. 10 MR. BIRMINGHAM: And could you, please, tell us what 11 is depicted in Figure 23 from open file report 87-573 which 12 has been marked for identification as Exhibit Westlands 13? 13 MR. JOHNSTON: Figure 23 shows two things. It shows 14 water table contours, the numbers reflect altitude of the 15 water table above sea level. And it shows as a series of 16 small circles, a line of small circles which is the 17 groundwater divide. This line of small circles shows the 18 altitude of the water table which can be used to determine 19 the general lateral component of flow in the semi-confined 20 zone of the western San Joaquin Valley. 21 MR. BIRMINGHAM: Now, is Westlands Water District 22 within the area depicted on Figure 23? 23 MR. JOHNSTON: Yes, it is. 24 MR. BIRMINGHAM: I would like to show to you, 25 Mr. Johnston, a figure taken from the draft Environmental CAPITOL REPORTERS (916) 923-5447 609 1 Impact Report for the consolidated and conformed place of 2 use prepared by the United States Department of Interior, 3 Bureau of Reclamation. And in particular Figure 3-26 from 4 that draft Environmental Impact Report. 5 Are you familiar with the area depicted in Figure 6 3-26 of the draft Environmental Impact Report? 7 MR. JOHNSTON: Yes, I am. It's a depiction of the 8 area of Westlands Water District. 9 MR. BIRMINGHAM: Now, within the western boundary of 10 the area of Westlands Water District depicted on Exhibit 11 3-26 there's a cross -- cross -- crosshatched area, excuse 12 me. Can you tell me what is depicted by that crosshatched 13 area on Figure 3-26? 14 MR. JOHNSTON: The symbols on the map indicate that 15 it is an area that's irrigated with CVP water. 16 MR. BIRMINGHAM: And is it your understanding that 17 that is the area that is outside the permitted place of use 18 within the District? 19 MR. JOHNSTON: Yes. 20 MR. BIRMINGHAM: And, generally, is the information 21 that's depicted on Figure 3-26 with respect to the area 22 outside the permitted place of use correct? 23 MR. JOHNSTON: As far as I recall it is correct. 24 MR. BIRMINGHAM: Mr. Johnston, were you present in 25 this water rights hearing when Thomas Zuckerman testified CAPITOL REPORTERS (916) 923-5447 610 1 on behalf of the Central Delta Water Agency? 2 MR. JOHNSTON: Yes, I was. 3 MR. BIRMINGHAM: I'd like to read to you a statement 4 that is contained in Mr. Zuckerman's testimony from page 5 ten. It states that (reading): 6 "The encroachment deliveries to Del Puerto Water 7 District, San Luis Water District, and Westlands 8 Water District appear to add directly or 9 indirectly to the San Joaquin River salinity 10 problem." 11 Now, focusing on Westlands Water District, is it 12 possible for water applied on the lands outside of the 13 place of use, permitted place of use within Westlands to 14 contribute directly or indirectly to salinity in the San 15 Joaquin River? 16 MR. JOHNSTON: No. 17 MR. BIRMINGHAM: Would you, please, explain why not? 18 MR. JOHNSTON: Because the water applied to the 19 subject lands, those lands that are outside of the CVP 20 service area are west of the divide line, the water table 21 divide line, which is shown on the Westlands Exhibit 13. 22 And any water that would reach the water table after it 23 flows vertically down to the water table would flow west 24 and not east. 25 MR. BIRMINGHAM: So as I understand it, water applied CAPITOL REPORTERS (916) 923-5447 611 1 irrigation -- surface irrigation water applied to those 2 lands that are outside the permitted place of use would 3 percolate vertically until it reaches the water table and 4 then flow subsurfacely in a westerly direction? 5 MR. JOHNSTON: That's correct. In addition 90 6 percent of the lands that are depicted on the map and are 7 out of the service area in Westlands are south of the San 8 Joaquin River. 9 MR. BIRMINGHAM: And is it correct that most of those 10 lands are in the Tulare Lake basin? 11 MR. JOHNSTON: Well, they're on the fan in between 12 the San Joaquin basin and the Tulare Lake basin. 13 MR. BIRMINGHAM: I have no further questions of 14 Mr. Johnston. 15 C.O. CAFFREY: All right. Thank you very much, 16 Mr. Birmingham. Does that complete your direct rebuttal 17 testimony? 18 MR. BIRMINGHAM: Yes, it does. 19 C.O. CAFFREY: All right. Thank you, sir. Does 20 anybody wish to cross-examine this rebuttal witness? 21 Mr. Nomellini. Anybody else besides Mr. Nomellini? No one 22 else responding. Please, come forward, Mr. Nomellini. 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 612 1 ---oOo--- 2 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 3 BY CENTRAL DELTA WATER AGENCY 4 BY DANTE JOHN NOMELLINI 5 MR. NOMELLINI: For the record, Dante John Nomellini 6 on behalf of the Central Delta parties. With regard to the 7 deliveries to the areas outside the permitted place of use, 8 do you know how long those deliveries have taken place? 9 MR. JOHNSTON: Not precisely. I know that the 10 laterals constructed to the west of the San Luis Canal 11 probably didn't occur until about the mid 1970s. So it 12 wouldn't be before that, unless these areas were irrigated 13 with groundwater prior to that time. 14 MR. NOMELLINI: Do you know about the quantity of 15 water that's delivered to that area by Westlands? I'm, 16 again, talking about the area depicted on Figure 3-26 17 that's outside the place of use. 18 MR. JOHNSTON: I do know that the allocation of water 19 to those lands is substantially less than the consumptive 20 needs of the crops that would be grown there. So -- but 21 the exact quantity that would go on these lands would vary 22 depending on the availability to the lands through the 23 facilities that have been constructed by Westlands and the 24 annual allocation of water to the lands. 25 MR. NOMELLINI: Could it be within the range of the CAPITOL REPORTERS (916) 923-5447 613 1 one and a half acre foot per acre to two acre feet per 2 acre? 3 MR. JOHNSTON: It could be in that range. 4 MR. NOMELLINI: All right. Now, you indicated in 5 your testimony that the groundwater in this area that's 6 outside the place of use does not flow into the San Joaquin 7 River, or contribute the flow in the San Joaquin River; is 8 that correct? 9 MR. JOHNSTON: That's correct. 10 MR. NOMELLINI: All right. Now, with regard to the 11 return flow from the fields and surface flows, is your 12 testimony the same that it does not -- 13 MR. JOHNSTON: Yes. 14 MR. NOMELLINI: -- cannot get in there? 15 MR. JOHNSTON: Yes. 16 MR. NOMELLINI: So Little Panoche does not flow into 17 the San Joaquin even in high water periods? 18 MR. JOHNSTON: It certainly doesn't flow from any 19 water that would be applied through the irrigation system. 20 I mean, creeks flow when there's heavy rainfall. 21 MR. NOMELLINI: And does the rainfall fall on the 22 fields to which the water is applied? 23 MR. JOHNSTON: Probably. 24 MR. NOMELLINI: So would any of that runoff flow 25 through Little Panoche into the San Joaquin River? CAPITOL REPORTERS (916) 923-5447 614 1 MR. JOHNSTON: It's very unlikely. Most of the flow 2 that comes down the creek comes through the hills west of 3 the District. 4 MR. NOMELLINI: When you say "unlikely," you're 5 saying it's not impossible that some of that flow could get 6 into the San Joaquin? 7 MR. JOHNSTON: It's not impossible that some rainfall 8 could get from the fields, very minimal, to the creek and 9 then to across the San Luis canal and into the -- have to 10 pass across the Panoche District and across the Firebaugh 11 District and all the canals in between to finally make it 12 to the river. 13 MR. NOMELLINI: With regard to Cantoa Creek, does 14 that flow into the San Joaquin? 15 MR. JOHNSTON: No. 16 MR. NOMELLINI: Does it interconnect with Fresno 17 Slough? 18 MR. JOHNSTON: No. 19 MR. NOMELLINI: What about Los Gatos Creek? 20 MR. JOHNSTON: No. 21 MR. NOMELLINI: Now, with regard to the Fresno 22 Slough, does that flow into the San Joaquin? 23 MR. JOHNSTON: Yes. 24 MR. SEXTON: Objection, Mr. Chairman. This is going 25 way beyond what this witness was put on for for rebuttal CAPITOL REPORTERS (916) 923-5447 615 1 testimony. The sole purpose as described by Mr. Birmingham 2 was that Mr. Johnston would only testify in rebuttal to 3 comments made by Mr. Zuckerman. What Mr. Nomellini is 4 getting into now is way beyond that. 5 The testimony of Mr. Johnston was focused only on 6 the fact that lands outside of the current CVP place of use 7 within Westlands would not have an impact on San Joaquin 8 River salinity due to the location of the groundwater 9 divide. Mr. Nomellini is now examining this witness on all 10 matters relating to groundwater hydrology within all areas 11 of Westlands which will get us into areas that we don't 12 particularly want to get into hopefully until Phase V. 13 C.O. CAFFREY: Thank you, Mr. Sexton. 14 Mr. Birmingham? 15 MR. BIRMINGHAM: I would join in Mr. Sexton's 16 objection although I would observe that the testimony 17 relates to areas outside the permitted place of use and not 18 the CVP area of use. 19 MR. SEXTON: That's correct, I misspoke. Thank you. 20 C.O. CAFFREY: Go ahead. 21 MR. BIRMINGHAM: The point for the Board to remember 22 is that we are here in a rebuttal case. And rebuttal 23 testimony or rebuttal evidence can only be offered to rebut 24 evidence specifically contained in a case in chief. Here 25 Mr. Johnston's testimony was limited to rebuttal of one CAPITOL REPORTERS (916) 923-5447 616 1 sentence in Mr. Zuckerman's testimony. And Mr. Nomellini 2 has gone way beyond the scope of that rebuttal. 3 C.O. CAFFREY: Time out. 4 (Off the record from 1:37 p.m. to 1:39 p.m.) 5 C.O. CAFFREY: Mr. Nomellini, did you wish to respond 6 before I rule? 7 MR. NOMELLINI: No. I was right to the end of what I 8 wanted to question him on. But I think it ought to be made 9 clear, the implication was that because something is in the 10 Tulare basin, which he testified to, or the sands in 11 between that it does not create any flow into the San 12 Joaquin River. I think I've established the Fresno Slough 13 flows in there. And what I wanted to do was establish that 14 flood flows from the Tulare basin actually enter the San 15 Joaquin River. 16 C.O. CAFFREY: Perhaps, this is not the place to 17 establish that, because what I'm going to do is sustain the 18 objection. 19 MR. NOMELLINI: Very good. That is all I have. 20 C.O. CAFFREY: Because we are very limited in the 21 scope of what we do here in rebuttal as Mr. Birmingham -- 22 MR. NOMELLINI: Sometimes we are, Mr. Chairman, and 23 sometimes we're not. But anyway that's fine. Thank you. 24 C.O. CAFFREY: We try to be consistent, 25 Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 617 1 MR. SEXTON: Mr. Caffrey? 2 C.O. CAFFREY: Yes, Mr. Sexton. 3 MR. SEXTON: I'd like to request that the testimony 4 of Mr. Johnston to the extent that it was outside the 5 rebuttal case of Mr. Zuckerman's one sentence be stricken 6 from this phase of the record. 7 C.O. CAFFREY: Thank you. I think we'll just leave 8 it there, because as I've said before, my commentary is on 9 the record, it goes to the Board to determine the weight of 10 evidence. And we haven't been all that strict in that 11 regard throughout this entire proceeding. So your point is 12 made and on the record, Mr. Sexton. Thank you. 13 Let's see, was there anybody else wishing to 14 cross-examine? Wait a minute, I thought I had 15 Mr. Herrick -- 16 MR. HERRICK: No. 17 C.O. CAFFREY: I lost my place I guess. Mr. Candee, 18 go ahead. 19 MR. CANDEE: Thank you, Mr. Chairman, just two quick 20 questions of clarification. 21 ---oOo--- 22 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 23 BY NATURAL RESOURCES DEFENSE COUNCIL 24 BY HAL CANDEE 25 MR. CANDEE: Mr. Johnston, is my understanding CAPITOL REPORTERS (916) 923-5447 618 1 correct that your testimony about Westlands Water District 2 Exhibit 13 is confined to the affects of irrigation on 3 lands west of that divide that you pointed to? 4 MR. JOHNSTON: That's correct. 5 MR. CANDEE: So your conclusion that none of the 6 irrigation of those lands could possibly make it to the San 7 Joaquin River is limited only to those lands west of that 8 divide? 9 MR. JOHNSTON: That's all I was asked about. 10 MR. CANDEE: Okay. Thank you. 11 C.O. CAFFREY: Thank you, Mr. Candee. Does that 12 complete the cross-examination of the rebuttal evidence? 13 Do you wish to offer any redirect, Mr. Birmingham? 14 MR. BIRMINGHAM: No, I do not. But at this time I'd 15 like to move for the admission of Mr. Johnston's 16 qualifications which I believe has been marked for 17 identification as Westlands Exhibit 5 and move for the 18 admission of Westlands Exhibit 13. 19 C.O. CAFFREY: All right, sir. Is there any 20 objection to the acceptance of those exhibits into the 21 record as rebuttal submittals? Seeing and hearing no 22 objection, they are accepted. Thank you, sir. 23 MR. BIRMINGHAM: Thank you, very much. 24 C.O. CAFFREY: Let's see, I believe we have 25 Mr. Herrick for presentation of rebuttal. CAPITOL REPORTERS (916) 923-5447 619 1 MR. HERRICK: Yes. We reviewed all the evidence and 2 if it's okay, just the same, we won't put on a rebuttal 3 case. We think the evidence is fine. 4 C.O. CAFFREY: All right. Thank you, sir. Anybody 5 else before we move on? Did we miss anybody wanting to 6 submit rebuttal testimony? Mr. Brandt, you wish to do so? 7 MR. BRANDT: In short, yes. On behalf of the United 8 States Department of the Interior I'd like to request, 9 actually, that certain documents already in your records be 10 incorporated into this hearing record. And it's rebuttal 11 to any suggestion that the standards in the 1995 Water 12 Quality Control Plan were not met. 13 I'd like to have incorporated into the record for 14 Phase I the -- three things. One is the United States 15 Bureau of Reclamation's monthly reports that are submitted 16 to you for the last three years since 95-6 was adopted. 17 C.O. CAFFREY: Do you want to give those a number, or 18 is that necessary? We probably have to assign some 19 rebuttal numbers. 20 MS. LEIDIGH: We need a number. 21 MR. BRANDT: It wasn't clear to me whether these were 22 actually -- the way they were described in there it was not 23 clear to me whether they were actually -- 24 MR. NOMELLINI: Mr. Chairman, on a procedural manner? 25 C.O. CAFFREY: Yes, Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 620 1 MR. NOMELLINI: If they are staff exhibits, they are 2 already in the record. There's no need to incorporate them 3 in a particular phase as they are part of the entire 4 record. 5 C.O. CAFFREY: Thank you for your comment. 6 Ms. Leidigh? 7 MS. LEIDIGH: We're trying to determine whether they 8 are staff exhibits and it appears that they are not. 9 MR. NOMELLINI: If they are not, then we need a 10 witness up here and we need a foundation. And I'm going to 11 object to the offer -- 12 C.O. CAFFREY: Have we determined that they are not? 13 MS. LEIDIGH: Just a second. Okay. The information 14 is that they are in the correspondence file, in the staff 15 correspondence file, but they're spread all through. And 16 we would like them to be gathered together and assigned a 17 number. 18 I think they can still be offered by reference 19 without having a witness to testify about them. They are 20 produced by a governmental agency. They are in our files. 21 I don't think there's any need to have a witness. 22 MR. O'LAUGHLIN: Mr. Caffrey? 23 C.O. CAFFREY: Mr. O'Laughlin. 24 MR. O'LAUGHLIN: I'd have to object to that. I mean 25 I don't mind the Rules of Evidence being trampled on, but CAPITOL REPORTERS (916) 923-5447 621 1 now to ignore them -- 2 C.O. CAFFREY: Are you suggesting that we are 3 trampling the Rules of Evidence here, Mr. O'Laughlin? 4 MR. O'LAUGHLIN: Well, I think that we are, because 5 if DOI is going to submit documents, they have to lay a 6 proper foundation. Just because it comes from a 7 governmental agency doesn't mean anything. I mean you've 8 got to lay a proper foundation, where the document comes 9 from, who made it, how it was produced, and what it's being 10 offered for into evidence. And you can't say because it 11 comes from a governmental agency -- 12 C.O. CAFFREY: Maybe I misunderstood your statement 13 about the trampling of the Rules of Evidence. You were 14 not, I take it, referring to the Board's deportment in this 15 proceeding? 16 MR. O'LAUGHLIN: No. 17 C.O. CAFFREY: Thank you. 18 MR. O'LAUGHLIN: No, I'm talking about this one right 19 here in regards to just because a governmental agency is 20 offering some document, you have to lay some foundation for 21 the document. And just because it's in somebody's records 22 doesn't make it proper. 23 C.O. CAFFREY: One more time, my commentary -- 24 MR. NOMELLINI: One more time for me? 25 C.O. CAFFREY: One more time. CAPITOL REPORTERS (916) 923-5447 622 1 MR. NOMELLINI: I don't have a lot of trouble with 2 this idea of getting these documents in here. But I don't 3 think they're in the correspondence file. I can't see 4 where they are in here. I had problems with the 5 incompleteness of the correspondence file specifically 6 listing certain documents. So I think we need clear 7 identification of what they are on the staff exhibit list, 8 if you would be so kind to tell us which number it is. 9 C.O. CAFFREY: I think we were about to try to do 10 that. 11 MR. NOMELLINI: Okay. All right. I'm sorry. 12 C.O. CAFFREY: Sir, you are? 13 MR. CAMPBELL: Matthew Campbell, Attorney General's 14 Office on behalf of Fish and Game. 15 C.O. CAFFREY: Yes, sir. 16 MR. CAMPBELL: The Board's regulations do provide for 17 official notice of government documents, I don't know 18 whether these documents would fit into that category 19 because I haven't seen them, but it is another avenue for 20 getting that information before the Board without the 21 necessity of testimony by a witness. 22 C.O. CAFFREY: Thank you, Mr. Campbell. Ms. Leidigh, 23 do you have some legal advice for the Board -- 24 MS. LEIDIGH: Yes. 25 C.O. CAFFREY: -- so we can get beyond this? CAPITOL REPORTERS (916) 923-5447 623 1 MS. LEIDIGH: I think I'm going to make it pretty 2 brief. First of all a point of fact, these documents are 3 in Staff Exhibit 4 to -- I'm not going to go into all of 4 the reasons why this is admissible, but it is admissible. 5 C.O. CAFFREY: All right. We're not going to hear 6 the reasons why -- 7 MR. ATTWATER: Could I say something? 8 C.O. CAFFREY: Yes, Mr. Attwater. 9 MR. ATTWATER: Ms. Leidigh, do they need to be 10 gathered together and given an actual number? 11 MS. LEIDIGH: That is not required. It would be 12 helpful in terms of taking care of the documents and making 13 sure that we have a clear record of the Bureau's request 14 that they be looked at, but it's not absolutely necessary 15 because they're already in the record. 16 MR. ATTWATER: All right. 17 MR. BRANDT: If they are already in the record, I 18 mean, if that's true then I will stand by that. Can I just 19 clarify then another -- are the DWR reports also in there? 20 MS. WHITNEY: No. 21 MR. BRANDT: So the DWR reports are not in? 22 MS. WHITNEY: We get these monthly records on a 23 monthly basis. I put them in the files. I'm not going to 24 swear that they're in there, because I've only been 25 responsible for them for the last two-and-a-half years and CAPITOL REPORTERS (916) 923-5447 624 1 I don't know what happened to them before that. 2 C.O. CAFFREY: All right. 3 MR. BRANDT: I'd be happy with the last two and a 4 half years. 5 C.O. CAFFREY: All right. I'm going to call on 6 Mr. Schulz here and then we're going to close this off. 7 Mr. Schulz, you have something to offer for the good of 8 the -- 9 MR. SCHULZ: I've actually been working on this issue 10 since D-1379 about the use of government documents. 11 C.O. CAFFREY: Yes, you do look familiar. 12 MR. SCHULZ: But I agree with Ms. Leidigh that 13 documents like that can be introduced into evidence by 14 reference. 15 C.O. CAFFREY: It would be nice -- 16 MR. SCHULZ: There is actually very good case law on 17 this. They can come in for the proof of the fact that the 18 government document exists and was produced. But they 19 cannot come in for the truth of the matters contained 20 therein unless there is a sponsoring witness. And so if 21 the purpose of the offer is for the truth of the matter 22 stated therein, then you do need a sponsoring witness. I 23 think Mr. Attwater would agree with that. 24 MR. ATTWATER: We were just discussing that up here. 25 C.O. CAFFREY: So we need a witness, Mr. Attwater, if CAPITOL REPORTERS (916) 923-5447 625 1 we wish to enter these as evidentiary exhibits? 2 MS. LEIDIGH: Based on how you use it. 3 C.O. CAFFREY: Based on how we use it. So if he 4 wants to stipulate that they exist, he doesn't need a 5 witness. But if he wants to stipulate as to the truth of 6 the document he needs a witness, correct? 7 MR. NOMELLINI: Mr. Chairman, if they're in the staff 8 exhibits, if they're actually in there, I have no objection 9 to them because they're already of record. 10 C.O. CAFFREY: Thank you for that. 11 MR. NOMELLINI: If they're not in there, then my 12 objection stands. So if the representation is that they're 13 in there, fine. 14 C.O. CAFFREY: All right. They're in there. 15 MS. WHITNEY: 5626. 16 C.O. CAFFREY: Is it the staff's statement that they 17 are in the record, they are in the files? 18 MS. WHITNEY: They're in the files, application file 19 5626. This number four here limits the stuff in 5626 to 20 information that pertains to the change petition that's 21 before the Board. 22 MR. NOMELLINI: We need a formal record in this 23 hearing -- 24 C.O. CAFFREY: Okay. Let's get to the bottom of 25 this. CAPITOL REPORTERS (916) 923-5447 626 1 MR. BRANDT: Two options, one is basically these are 2 in compliance -- partly in compliance I understand with 3 95-6 and we have to submit these to extract the 4 information. So the fact that they are in there helps us 5 to some extent, that may be enough. 6 But in any case, the other option is I can put 7 John Renning on who's involved in some of the preparation 8 of these and submittal of this information, put him on and 9 give some foundation. I do not have copies of every single 10 one of those reports in there, but I can arrange to get -- 11 C.O. CAFFREY: If you wish. It's your call, 12 Mr. Brandt. If you wish to call a witness and clear this 13 up, that's your call. The option is to go through some 14 written exercise to figure out whether these things are 15 actually in the file and get back to you later. If your 16 witness is here, you may be able to make some progress if 17 you just call him. 18 MR. BRANDT: Why don't I just do that. I'd like to 19 call Mr. John Renning. 20 C.O. CAFFREY: Okay. Mr. Renning, did you take the 21 oath the other day? 22 MR. RENNING: Yes, I did. 23 C.O. CAFFREY: Thank you, sir, welcome. Mr. Brandt. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 627 1 ---oOo--- 2 REBUTTAL TESTIMONY BY THE UNITED STATES 3 DEPARTMENT OF THE INTERIOR 4 BY ALF W. BRANDT 5 MR. BRANDT: Mr. Renning, could you state your name 6 for the record, please. 7 MR. RENNING: My name is John Renning. 8 MR. BRANDT: And could you tell me what you do for a 9 living? 10 MR. RENNING: I'm a civil engineer for the Bureau of 11 Reclamation in the Central Valley Operations Office. 12 MR. BRANDT: How long have you worked for the Bureau 13 of Reclamation in a specific region? 14 MR. RENNING: I've been with the Bureau for over 30 15 years. 16 MR. BRANDT: How long have you work in the Central 17 Valley Operations Project? 18 MR. RENNING: Since 1992. 19 MR. BRANDT: Are you aware of reports that have the 20 organization -- that teh Bureau of Reclamation prepares on 21 a monthly basis of the operations of the Central Valley 22 Project for submittal to the State Water Resources Control 23 Board? 24 MR. RENNING: Yes. We prepare a monthly report of 25 monthly operations that is sent to the Board among a whole CAPITOL REPORTERS (916) 923-5447 628 1 list of other people. 2 MR. BRANDT: Are you involved in the preparation of 3 those reports? 4 MR. RENNING: Yes, to a certain degree. 5 MR. BRANDT: Can you tell me how they are -- how 6 those reports -- how the information in those reports is 7 developed? 8 MR. RENNING: The information is a -- these are 9 factual reports concerning a whole series of data that 10 comes from the operations of our facilities all the way 11 from Trinity in the north to the San Luis unit, San Luis 12 Canal, and the friant unit. 13 MR. BRANDT: Does this information -- do these 14 reports contain information as to the exports out of the 15 Delta and inflow into the Delta? 16 MR. RENNING: Yes, these do. 17 MR. BRANDT: Is the information contained in these 18 reports reliable? 19 MR. RENNING: Yes, it is. 20 MR. BRANDT: On that basis I'd like to move for 21 introduction of those monthly reports, which if we need to, 22 we can provide them, or I understand they may be in the 23 record. 24 C.O. CAFFREY: I'm not sure that the production of 25 this witness has gotten us any further procedurally, CAPITOL REPORTERS (916) 923-5447 629 1 because we have to figure out what the documents are and 2 produce them, don't we. Hello? 3 MS. WHITNEY: We have them. 4 MS. LEIDIGH: We have them. 5 C.O. CAFFREY: We have them. 6 MR. BIRMINGHAM: Mr. Caffrey? 7 C.O. CAFFREY: Yes. 8 MR. BIRMINGHAM: I believe the questions Mr. Brandt 9 has asked and the answers that were given have laid the 10 foundation for the admission of these documents. The 11 witness testified that they are prepared in the regular 12 course of the Bureau's operations. That the information 13 contained in the reports is reliable. It is accurate and 14 that is the appropriate foundation for the admission of the 15 documents. 16 C.O. CAFFREY: And they're in our file, do I have 17 that right? 18 MS. WHITNEY: Yes. 19 C.O. CAFFREY: Okay. I apologize for misconstruing 20 your situation. Mr. Nomellini? 21 MR. NOMELLINI: Can we identify what documents are in 22 the file? 23 C.O. CAFFREY: Yes, let's do that now. 24 MR. NOMELLINI: Let's get a range of the months, or 25 at least some kind of description of the documents. CAPITOL REPORTERS (916) 923-5447 630 1 C.O. CAFFREY: Yes, let's do that. Ms. Leidigh, 2 would you please identify the documents working with 3 Mr. Brandt so we can get past this? 4 MS. LEIDIGH: Just a moment. We're going to give 5 them a Bureau exhibit number. 6 MR. BRANDT: Okay. 7 C.O. CAFFREY: Mr. Brown raises an important 8 procedural question. Since we started this whole process 9 as a submittal of exhibits and he has now produced a 10 witness as an alternative to the other machination this 11 witness is also subject to cross-examination. 12 Thank you, Mr. Brown. 13 MS. LEIDIGH: That's correct, he is. 14 C.O. CAFFREY: So let's at least get the exhibits 15 identified and then we'll see about cross-examination. 16 MR. NOMELLINI: It would be great to be able to look 17 at them, too, to cross-examine. 18 MR. BRANDT: They're in the record. 19 C.O. CAFFREY: I'm sure in the fullness of time, 20 Mr. Nomellini, you'll be able to do that. 21 MS. WHITNEY: Mr. Caffrey, we have a problem in that 22 yesterday was the exhibit submittal deadline and we 23 received a new stack of exhibits from the Bureau. We have 24 not entered those yet into our database. We don't know 25 what the last number is. CAPITOL REPORTERS (916) 923-5447 631 1 C.O. CAFFREY: Even though they were on time you 2 don't know what they are? 3 MS. WHITNEY: Right. 4 C.O. CAFFREY: Okay. That's great. 5 MS. WHITNEY: So I'll send somebody upstairs to find 6 out, but it's going to take about five minutes, unless 7 Mr. Brandt knows what the last number he used is and can 8 provide us -- 9 MR. BRANDT: Yeah, actually -- 10 C.O. CAFFREY: Or we can get on with 11 cross-examination. Go get your numbers and we'll get on 12 with it. 13 C.O. STUBCHAER: Couldn't we just assign a dummy 14 number, next in order? 15 MS. WHITNEY: Next -- 16 MR. BRANDT: Do you want to start with like 100. Why 17 don't we start with a hundred. We'll do this one as 18 rebuttal and all rebuttal will be DOI 101, 102, whatever. 19 So this will be DOI 101. 20 MS. LEIDIGH: We can do that. 21 MS. WHITNEY: All right. 22 MR. BRANDT: Let me just show for the record here we 23 have an example of one I can put in front of the witness 24 and just have him testify as to it. 25 Mr. Renning, I put in front of you -- CAPITOL REPORTERS (916) 923-5447 632 1 C.O. CAFFREY: How often are these submitted -- 2 MR. BRANDT: These are -- 3 C.O. CAFFREY: -- and how many are you submitting as 4 exhibits? 5 MR. BRANDT: How often are these -- go ahead, you 6 want to answer his questions? 7 MR. RENNING: Might I suggest that if you want to be 8 very concise in the number of exhibits, these reports are 9 updated each month. And the December report contains all 10 of the information that is in all of the other reports. 11 And so there would need to be only three exhibits, the 12 reports for '95, '96, and '97. 13 MR. BRANDT: And then the monthly reports -- 14 MR. RENNING: For December. 15 MR. BRANDT: Okay. So I would request specifically 16 the December 1995, December 1996, December 1997 versions of 17 the reports that are generally entitled "Central Valley 18 Operations Office Report of Operations," as well as I'd 19 like to request -- and this all would be in one package -- 20 the January, February, March, April, May, and June of 1998 21 the monthly reports for this year of similar as one 22 exhibit. 23 MR. RENNING: Well, actually, June -- you don't need 24 June. 25 C.O. CAFFREY: So those would be -- do we need or do CAPITOL REPORTERS (916) 923-5447 633 1 not need June? 2 MR. RENNING: You only need June for '98. 3 C.O. CAFFREY: So there's four documents then; is 4 that correct, '95 '96, '97, and the compilations through 5 the current portion of the current year? 6 MR. BRANDT: Yes, please. 7 C.O. CAFFREY: Okay. So it's numbers 101 through 8 104? 9 MS. WHITNEY: No 101. 10 C.O. CAFFREY: Pardon me? 11 MS. WHITNEY: One exhibit, right? 12 MR. BRANDT: Yes. 13 MS. WHITNEY: 101. 14 C.O. CAFFREY: Those four documents are identified as 15 one Exhibit 101. 16 MR. BRANDT: Thank you. 17 C.O. CAFFREY: We've not yet accepted those as 18 evidence, we've merely identified them because the 19 gentleman is now subject to cross-examination. Anybody 20 wish to cross-examine this nice patient gentleman? We have 21 Mr. Nomellini, Mr. O'Laughlin -- 22 MR. O'LAUGHLIN: My only question to this, if I 23 understood your staff person Victoria Whitney correctly, 24 she doesn't even know if these are in the correspondence 25 file. CAPITOL REPORTERS (916) 923-5447 634 1 MS. WHITNEY: Yes, they are. 2 C.O. CAFFREY: They are. We clarified that they are 3 in the file. 4 MR. O'LAUGHLIN: These are in the file? 5 MS. WHITNEY: Yes. 6 C.O. CAFFREY: Thank you, that was a confusing 7 moment. Mr. Nomellini? 8 MR. NOMELLINI: My first question would be to, 9 perhaps, if you can ask staff how far back these reports go 10 that aren't in the file? 11 C.O. CAFFREY: Are you cross-examining me, or -- 12 MR. NOMELLINI: No, I'm asking you to ask them a 13 question. 14 C.O. CAFFREY: So for clarification, go. 15 MR. NOMELLINI: Okay. How far back do we have these 16 reports in the file? 17 MS. LEIDIGH: I'm going to object to that. The only 18 ones that got offered into evidence were the ones for the 19 last three years -- 20 C.O. CAFFREY: Sustained. 21 MS. LEIDIGH: -- '95, '96, '97. 22 C.O. CAFFREY: Sustained. 23 MR. NOMELLINI: No, not at all. If they're in the 24 staff's -- 25 C.O. CAFFREY: Not at all sustained? CAPITOL REPORTERS (916) 923-5447 635 1 MR. NOMELLINI: Let me argue with you. 2 C.O. CAFFREY: No, you can't argue with me, I rule. 3 MR. NOMELLINI: All right, sustained. Staff exhibits 4 are in the record, as I understand it. 5 C.O. CAFFREY: That is correct. 6 MR. NOMELLINI: And whatever is in the staff's -- 7 C.O. CAFFREY: The ones that are offered are in the 8 record. And they are in the file, excuse me, they're in 9 the file. 10 MR. NOMELLINI: The previous staff exhibits that were 11 listed and were introduced are in the record. You admitted 12 those in the record -- 13 C.O. CAFFREY: That's correct. 14 MR. NOMELLINI: -- earlier in the hearing. So 15 everything that was in the record is in the record. I was 16 trying to get identified, specifically, what is in there 17 but I guess we can run over look at the file, photograph it 18 and worry about what additional entries might get in the 19 file or whatnot. That's what I was going to say, they're 20 in the file, they're on the record. 21 C.O. CAFFREY: They're on the record as well as the 22 documents that are subject now for potential acceptance as 23 evidentiary exhibits as identified by Mr. Brandt. 24 MR. NOMELLINI: Okay. One short question? 25 C.O. CAFFREY: Yes, sir. CAPITOL REPORTERS (916) 923-5447 636 1 ---oOo--- 2 CROSS-EXAMINATION OF THE UNITED STATES 3 DEPARTMENT OF INTERIOR 4 BY CENTRAL DELTA WATER AGENCY 5 BY DANTE JOHN NOMELLINI 6 MR. NOMELLINI: Do these reports that are routinely 7 filed note the violation of the standards? 8 MR. RENNING: They do not specifically note a 9 violation of the standards. But if you know what the 10 standards are and you know what you're concerned about you 11 would determine that there would be a violation. 12 MR. NOMELLINI: Okay. So they'd show the water 13 quality data, for example, at Vernalis and what the water 14 quality actually was? 15 MR. RENNING: Yes. 16 MR. NOMELLINI: Okay. That's all. 17 C.O. CAFFREY: Thank you, Mr. Nomellini. 18 Mr. Herrick, you wish to cross-examine the 19 witness? 20 MR. HERRICK: Very briefly, thank you, Mr. Chairman. 21 // 22 // 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 637 1 ---oOo--- 2 CROSS-EXAMINATION OF THE UNITED STATES 3 DEPARTMENT OF THE INTERIOR 4 BY SOUTH DELTA WATER AGENCY 5 BY JOHN HERRICK 6 MR. HERRICK: Mr. Renning, do these reports show the 7 affects on South Delta water levels due to Bureau 8 operations? 9 MR. RENNING: No, they do not. 10 MR. HERRICK: Do they show the affects on the flows 11 in the South Delta due to Bureau operations? 12 MR. RENNING: No, they do not. 13 MR. HERRICK: Do they show the affects on the quality 14 of water in the South Delta due to the affects of Bureau 15 operations? 16 MR. RENNING: They show the -- 17 MEMBER BROWN: Pull the mic closer. 18 MR. HERRICK: I'm sorry. 19 C.O. CAFFREY: It wasn't you, it's Mr. Renning we're 20 having trouble hearing. 21 MR. RENNING: They show the quality of water at 22 Vernalis. 23 MR. HERRICK: So they don't show the affects on the 24 interior Delta of water quality; is that correct? 25 MR. RENNING: No. CAPITOL REPORTERS (916) 923-5447 638 1 MR. HERRICK: And do these reports show the fish take 2 at the pumps? 3 MR. RENNING: I don't believe they do. 4 MR. HERRICK: Okay. No further questions. Thank you 5 very much. 6 C.O. CAFFREY: All right. Thank you, Mr. Herrick. 7 Any other cross-examiners of Mr. Renning? Do you wish to 8 offer any redirect rebuttal? 9 MR. BRANDT: No, Mr. Chairman. 10 C.O. CAFFREY: All right. Thank you, gentlemen. I 11 believe that does now complete the cases in chief for Phase 12 I. And it's now time I believe to have -- 13 MR. BRANDT: Can I just ask for clarification on -- 14 C.O. CAFFREY: Oh, we did not accept them into the 15 record. Is there any objection to accepting the 16 evidentiary exhibits as identified by Mr. Brandt and our 17 staff a few moments ago into the record? 18 MR. O'LAUGHLIN: As long as they're in the hearing 19 record. 20 C.O. CAFFREY: As long as they are in the hearing 21 record do you mean, or do you mean the file? 22 MS. WHITNEY: They are now. 23 MS. LEIDIGH: They are. 24 MS. WHITNEY: They're in the file, he just put them 25 in the record. If you accept them, they're in. CAPITOL REPORTERS (916) 923-5447 639 1 C.O. CAFFREY: They're in there as identified a 2 moment ago. 3 MS. LEIDIGH: I think that you need to rule on 4 whether or not they are accepted in evidence regardless of 5 whether they are a staff exhibit or not. 6 MS. WHITNEY: Right, they're now a Department of 7 Interior exhibit. 8 C.O. CAFFREY: All right. Well, here's the ruling: 9 They're accepted. Thank you. 10 MR. O'LAUGHLIN: Chairman Caffrey? 11 C.O. CAFFREY: Yes. 12 MR. O'LAUGHLIN: I think Ms. Leidigh raises a good 13 point though. Are we going to -- is there going to be a 14 standing rule by the Board that items that have been 15 submitted by the State Water Resources Control staff are 16 automatically entered into evidence, or are they not? 17 Because if this was already in the hearing record 18 and had already been submitted as evidence, then we 19 wouldn't have to have gone through this. But if it's not 20 in the evidence, have they really truly laid the proper 21 foundation? And is the evidence that's being offered being 22 offered for the truth of the matter asserted in the 23 documents, or is it just to identify that these are reports 24 that have been filed by a governmental agency? 25 C.O. CAFFREY: Were they already in the record as CAPITOL REPORTERS (916) 923-5447 640 1 part of the staff exhibit package, Ms. Leidigh? 2 MS. LEIDIGH: Just a moment. Okay. With respect to 3 these specific exhibits, it's not clear that they are part 4 of the staff exhibit. 5 C.O. CAFFREY: Did you wish to offer them? 6 MS. LEIDIGH: Well, Mr. Brandt has offered them. 7 So -- 8 C.O. CAFFREY: Is the distinction made by 9 Mr. O'Laughlin something that we have to concern ourselves 10 with? Briefly, please. 11 MS. LEIDIGH: The staff exhibits are exhibits that 12 have been accepted into evidence in the record already. 13 They're already there. And I don't think that there ought 14 to be anymore raising of objections about them. To put in 15 a little bit more detail about staff exhibits, I would 16 point out that some of those exhibits are subject to 17 exceptions of the Hearsay Rule and can be used for the 18 truth of the matter stated. Some of them are not. And 19 it's up to the Board to sort that out when it reviews the 20 record. 21 MS. WHITNEY: Mr. Caffrey, maybe I can clarify. 22 C.O. CAFFREY: Before you do that, Mr. Attwater, have 23 I ruled sufficiently -- 24 MR. ATTWATER: Yes. 25 C.O. CAFFREY: -- in your opinion as chief counsel? CAPITOL REPORTERS (916) 923-5447 641 1 MR. ATTWATER: Yes. 2 C.O. CAFFREY: Thank you very much. That's the end 3 of the issue. We are now going to have some discussion 4 about when we -- 5 MR. NOMELLINI: May we ask for copies? If we don't 6 know that they are in the record, they're not here and we 7 introduce them -- 8 MS. WHITNEY: They're in the file. 9 C.O. CAFFREY: They're in the file. 10 MR. NOMELLINI: How do we know they're in the file? 11 MS. WHITNEY: I know they're in the file. 12 C.O. CAFFREY: We know they're in the file. We had 13 that stated about three times. We're talking about the 14 record and the file. They are two different things. They 15 are in the file. And that's been stated. 16 MR. NOMELLINI: Could we ask that copies be 17 circulated by the proponent of the introduction? That 18 would solve our problem, so we know what we have in the 19 record. 20 C.O. CAFFREY: Yeah, Mr. Brandt, can you make copies 21 for everybody? That's what we normally do around here, 22 isn't it? 23 MR. BRANDT: I can make copies. 24 C.O. CAFFREY: You might want to get a showing of 25 hands. CAPITOL REPORTERS (916) 923-5447 642 1 MR. BRANDT: How many people want to see copies of 2 all of these reports? 3 C.O. CAFFREY: Everyone wants copies. 4 MS. WHITNEY: These are also on the Internet. 5 MR. BRANDT: The information in here is on the 6 Internet. So it's fully available. 7 MR. NOMELLINI: I'd like to have a copy identified -- 8 MR. BRANDT: I will get Mr. Nomellini a copy. 9 C.O. CAFFREY: Let us go forth with a copy for 10 Mr. Nomellini. Thank you very much. Now, let us get to 11 what I've been trying to get to for 15 minutes, that's some 12 determination of when we're going to submit written closing 13 statements. What's a reasonable deadline? What have we 14 been giving here for folks? 15 MS. LEIDIGH: About a month. 16 C.O. CAFFREY: That long? 17 MS. LEIDIGH: You could do less if you want. 18 MR. ATTWATER: 30 days. 19 MS. LEIDIGH: 30 days is normal. 20 C.O. CAFFREY: Let's set a date. Somebody offer a 21 date to the Board. I don't have a calendar here in front 22 of me. 23 C.O. STUBCHAER: Friday, August 14th. 24 C.O. CAFFREY: Friday, August 14th for submittal of 25 closing statements for Phase I. Any objections? That's CAPITOL REPORTERS (916) 923-5447 643 1 what we will do. It seems generous. Mr. O'Laughlin? 2 MR. O'LAUGHLIN: Mr. Caffrey, is there a page 3 limitation on closing statements? 4 C.O. CAFFREY: I don't believe we've ever stated one. 5 MS. LEIDIGH: No. 6 C.O. CAFFREY: We've never set one. 7 MR. O'LAUGHLIN: Okay. 8 C.O. CAFFREY: We like it to be kept generally under 9 a thousand pages. Most of us like to sleep at least two 10 hours a night on the nights that we sleep. 11 Mr. O'Laughlin? 12 MR. O'LAUGHLIN: Another point, it wasn't clear from 13 the hearing notice whether the closing statements would 14 have to be served on all the other parties, or are they 15 just going to be served on the Board? 16 MS. LEIDIGH: All of the parties. 17 C.O. CAFFREY: All of the parties. A good question, 18 Mr. O'Laughlin. Thank you for that clarification. Before 19 we close this portion of the hearing, that being Phase I, 20 let's talk a little bit about what we're going to do from 21 here on out. 22 We're not going to go any further today. We are 23 going to begin tomorrow at 9:00 o'clock. We will hear from 24 the four legislators that I believe are going to be here to 25 make policy statements. And as soon as we hear from them CAPITOL REPORTERS (916) 923-5447 644 1 then we will go through the list of parties for 2 appearances. We do have some, we do not have many but 3 there are still some that have not appeared. We're not 4 sure who they are, so we'll go through that again. 5 Then we will hear Mr. O'Laughlin's argument on his 6 motion on the process for Phase II and thereafter. And 7 after that, of course, we will hear from the other parties. 8 We're going to put -- so that you know now, we're going to 9 put a half an hour limit on the arguments. And we will 10 hear all the arguments starting with Mr. O'Laughlin and 11 then we'll hear the other arguments and then we will allow 12 Mr. O'Laughlin a brief period to summarize and respond. 13 At that point, then, we will adjourn. And this is 14 somewhat tentative but I'm looking at Mr. Pettit, I'm 15 looking at Ms. Leidigh, and Mr. Attwater, we're going to do 16 this with expediency and dispatch, if we can finish those 17 arguments around the noon hour, we would try to get a 18 written ruling out by late in the afternoon on the Internet 19 through faxes if we possibly can. 20 MS. LEIDIGH: Yeah. 21 C.O. CAFFREY: We will then reconvene on Thursday 22 morning at 9:00 o'clock and begin the evidentiary procedure 23 for Phase II. That's roughly what we will try to do. 24 We'll let you know the moment any of that changes. We 25 think it's important to keep this thing moving as best we CAPITOL REPORTERS (916) 923-5447 645 1 can, but we do need to take probably tomorrow afternoon to 2 consider the motions and to make a ruling. 3 MEMBER BROWN: And we're next door. 4 C.O. CAFFREY: Thank you. Mr. Brown reminds me that 5 tomorrow we will be across the street in the Resources 6 auditorium, expecting a larger crowd, of course. And as I 7 stated this morning, we'll certainly keep you posted if we 8 are away from this room. So for the next two days anyway 9 we will be across the street. Anything else from the Board 10 Members? 11 C.O. STUBCHAER: Mr. Chairman? 12 C.O. CAFFREY: Yes, Mr. Stubchaer. 13 C.O. STUBCHAER: Just a little further clarification 14 on the closing statements, page three of enclosure one to 15 the revised hearing notice does say that brief copy be 16 submitted to us and that one copy be served on each of the 17 other parties. And, then, it also says that a statement of 18 service, or the manner of service indicated shall be filed 19 with each brief. So I think that helps to answer 20 Mr. O'Laughlin's question. 21 C.O. CAFFREY: Thank you, Mr. Stubchaer, who often 22 serves as our very able parliamentarian and knowledgeable 23 expert. All right, then, thank you very much all for your 24 attendance. 25 Mr. Herrick, very briefly. CAPITOL REPORTERS (916) 923-5447 646 1 MR. HERRICK: Very briefly, if we start with the San 2 Joaquin Agreement on Thursday is there any estimation of 3 what the case in chief would be? I mean is it all day, two 4 days, is it half a day? Is there any guess just so the 5 rest of us can plan when we might be -- 6 C.O. CAFFREY: Case in chief is limited -- well, if 7 you're talking about the direct evidence, the direct 8 submittal that's limited by a 20 minute per witness 9 limitation which is our regulations, in our rules for this 10 hearing. With a total cap of three hours. The theory 11 being, I don't want to anticipate what you're going to say 12 Mr. O'Laughlin, but the theory being that the oral 13 presentation is a summary of what has already been 14 submitted as evidentiary exhibits. 15 Mr. O'Laughlin. 16 MR. O'LAUGHLIN: Briefly to respond to that, we have 17 filed a motion with the Board in regards to time 18 limitations and presentation of the evidence in regards to 19 putting people on in time limitations and in regards to 20 cross-examination and rebuttal that was submitted to the 21 Board in regards to your very strict interpretation of the 22 time limitations. And that is in front of the Board. 23 We would hope that that would get a hearing 24 tomorrow as well and a response, because as you well know, 25 the San Joaquin River Agreement is not one party. It's CAPITOL REPORTERS (916) 923-5447 647 1 numerous parties to the proceedings that would want to put 2 on an affirmative case and we've worked on that jointly. 3 In regards to the questions that I've been asked numerous 4 times in the last day, how long our testimony will take in 5 regards to Phase II, needless to say that's going to depend 6 on large part on how the Board rules tomorrow. I think 7 it's safe to say that if the Board rules one way we will 8 probably have a very expedited hearing schedule in regards 9 to Phase II. If the Board rules another way, it will 10 probably take the eight to nine days that I previously 11 thought it would take. 12 C.O. CAFFREY: Let me just say, Mr. O'Laughlin, that 13 I appreciate your heavy involvement in our procedure and 14 you've become, I think, somewhat of an expert in the area. 15 But for clarification, again, I'll repeat that with regard 16 to cross-examination what we put in our regulations, what 17 is it one hour per -- 18 C.O. STUBCHAER: To start with. 19 C.O. CAFFREY: -- to start with, that's a goal. We 20 make a distinction in our mind between that and the limit 21 that's on the direct presentation. 22 MR. O'LAUGHLIN: Our cross-examination was only from 23 the standpoint that we would have five biologists here all 24 in one day. And we wanted to get the biologists done and 25 over with both direct, cross, redirect, and recross rather CAPITOL REPORTERS (916) 923-5447 648 1 than have them wait as some panels have done previously in 2 the proceedings -- 3 C.O. CAFFREY: Well -- 4 MR. O'LAUGHLIN: -- so that we can get finished up 5 with the biologists and move on to the hydrologists and 6 then move on to the -- 7 C.O. CAFFREY: Sometimes we can make those 8 accommodations without objections from the other parties. 9 And, generally, I think the other parties have been willing 10 to do that. We have done it a couple of times in this 11 proceeding, maybe not on that scale, but I don't know that 12 that calls for a complete reexamination of our procedures. 13 MR. O'LAUGHLIN: It's not. It was just specific as 14 to Phase II and the San Joaquin River Agreement as to why 15 we made that motion. 16 C.O. CAFFREY: Okay. 17 MR. O'LAUGHLIN: Not generally. 18 C.O. CAFFREY: We'll deal with that -- you can make a 19 request of the Board when we get to that point tomorrow. 20 MR. O'LAUGHLIN: We have and we put it in writing. 21 C.O. CAFFREY: I'll be honest with you, right at this 22 point I'm not going to make a ruling. There's certain 23 aspects of that that trouble me with regard to the length, 24 the length of time that you ask for. If I understand it 25 correctly, for the presentation of your direct testimony CAPITOL REPORTERS (916) 923-5447 649 1 because we've just been through an entire phase of this 2 proceeding holding everybody else to the rules that we now 3 have. So if I were to entertain allowing you, is it, what, 4 20 hours? 5 MS. LEIDIGH: Yes, he had asked for 20 hours. 6 C.O. CAFFREY: 20 hours for direct testimony, what do 7 I say to everybody else that has followed the rules in 8 Phase I? So that's what's on my mind. That's not a 9 ruling, but just to give you, perhaps, some flavor of my 10 looming predilection. 11 Mr. Brandt? 12 MR. BRANDT: Your Honor, we are one of the parties 13 that are presenting the San Joaquin -- 14 C.O. CAFFREY: You don't have to call me, "your 15 Honor," just a hearing officer, but thank you. 16 MR. BRANDT: In any case, we are focused in on trying 17 to expedite this. And that's why -- we can each put on our 18 case, we've coordinated -- I mean we can take our three 19 hours, and we can take -- each party that's a member of the 20 San Joaquin Group, theoretically, could take three hours. 21 And we instead tried, for your purposes, tried to 22 expedite them, put them in panels, get them done, get them 23 moving, and get it done. And that's why we hoped that 24 there would be some kind of flexibility. We could be 25 here -- I mean if each one of the parties put it on, it CAPITOL REPORTERS (916) 923-5447 650 1 would be, what, 28 parties? Something like that, we could 2 be here for months just on the San Joaquin River Agreement. 3 C.O. CAFFREY: Let's get a better feel for it 4 tomorrow. And we'll -- we understand your purpose and 5 we'll try to accommodate it in such a way that it's fair 6 for everybody and will take, hopefully, the least amount of 7 time. We'll see you all tomorrow morning at 9 a.m., thank 8 you, across the street by the way. 9 (The proceedings concluded at 2:17 p.m.) 10 ---oOo--- 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 651 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 461 through 652 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 18th day of 14 August, 1997. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 652