STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, JULY 21, 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 759 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 760 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 761 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 762 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 763 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 764 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 765 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 766 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 767 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 768 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 769 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 770 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 771 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 772 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 775 6 AFTERNOON SESSION 880 7 END OF PROCEEDINGS 1001 8 POLICY STATEMENT: 9 PORGANS AND ASSOCIATES 780 10 SOUTH DELTA WATER AGENCY 787 11 OPENING STATEMENT: 12 CONTRA COSTA WATER DISTRICT 790 DEPARTMENT OF WATER RESOURCES 795 13 CENTRAL DELTA PARTIES 798 REGIONAL COUNCIL OF RURAL COUNTIES 802 14 SAN JOAQUIN RIVER GROUP AUTHORITY: 15 OPENING STATEMENT 821 16 U.S. DEPARTMENT OF THE INTERIOR 827 CALIFORNIA DEPARTMENT OF FISH AND GAME 832 17 MERCED IRRIGATION DISTRICT 833 18 DIRECT TESTIMONY SAN JOAQUIN RIVER GROUP: 19 DR. EMIL MORHARDT 851 PATRICIA BRANDES 865 20 DR. BRUCE HERBOLD 883 DR. CHUCK HANSON 883 21 DR. MARTIN KJELSON 908 WILLIAM LOUDERMILK 917 22 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP: 23 REGIONAL COUNCIL OF RURAL COUNTIES 923 24 25 CAPITOL REPORTERS (916) 923-5447 773 1 INDEX (Cont'd.) 2 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP: 3 ENVIRONMENTAL DEFENSE FUND 965 4 CITY OF STOCKTON 985 THE BOARD 996 5 ---oOo--- 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 774 1 TUESDAY, JULY 14, 1998, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 COHEARING OFFICER CAFFREY: Good morning, ladies and 5 gentlemen. Thank you for your attendance. This is the 6 continuation of the Delta Water Rights Hearing. We are 7 about to start the evidentiary portions of Phase II. When 8 last we met we heard arguments, pro and con, from 9 Mr. O'Laughlin's motion asking for modification, if you 10 will, in our procedures. 11 We have ruled in writing. That ruling has been 12 provided by e-mail and faxed to all the parties and is on 13 the Internet. We trust that all of you have had an 14 opportunity to look at it, review it, hopefully understand 15 it, re-review it, what have you. And we will proceeding 16 this morning according to those modifications. 17 With that let me just go through what we'll do 18 here this morning. We will go through the appearances, 19 again, to see if there are folks wanting to participate in 20 Phase II that were not here when we went through the 21 appearances at the beginning of the entire proceeding. We 22 will then go to policy statements specific to Phase II for 23 parties and then we will go -- I should say for parties not 24 presenting cases in chief. 25 We will then go to opening statements for parties CAPITOL REPORTERS (916) 923-5447 775 1 not presenting evidence, I should say evidence rather than 2 cases in chief. I think that term has caused a little 3 confusion in the past. Then we will re-administer the oath 4 and/or affirmation depending on who has or has not taken it 5 in the past. And, then, we will begin with the Phase II 6 cases in chief, or presentation of evidence, if you will. 7 I believe staff has somewhat of a puzzled look. Is there 8 anything that staff needs to raise at this point? 9 MS. LEIDIGH: No. 10 C.O. CAFFREY: Okay. We have people participating, 11 or potentially participating in another room in case we 12 have overflow. That's what you heard on that speaker. I 13 don't know if they know that they are being picked up, or 14 if they were trying to communicate with us. Why don't you 15 check? 16 MS. WHITNEY: Are you trying to talk to us? 17 MR. HOWARD: We'll just turn it off. 18 C.O. CAFFREY: Just another psychotic episode. Marc 19 Del Piero has a comment when things are strange. He says, 20 I feel like I'm in a Felini movie. So, bear with us folks. 21 Let's go, then, to the appearances. 22 I think on the table outside the room there is an 23 updated list of all the parties. I'm holding it up here. 24 Many of the names are asterisked, those are the parties 25 that identified themselves in Phase I when we called for CAPITOL REPORTERS (916) 923-5447 776 1 appearances. We have checked those names where there have 2 been changes read into the record and we hope we've gotten 3 them right. If those of you who are listed here who are 4 asterisked it means that you have already presented your 5 appearance. If we are in error even after checking the 6 record in what we have put down for your change, please, 7 let our staff know at your earliest convenience during one 8 of our breaks or after today's proceedings. 9 Let us go down the list, then. This is somewhat 10 cumbersome and time-consuming, but it is important for the 11 record. J. Mark Atlas? Robert J. Baiocchi? Bruce L. 12 Belton? Gary Bobker? Roberta Borgonovo? Byron M. Buck? 13 Virginia A. Cahill? 14 Ms. Cahill, I'm sorry I shouldn't have read your 15 name. I need a better pair of glasses. Your name is 16 asterisked. All right. Ernest A. Conant? Daniel M. 17 Dooley? Leslie A. Dunsworth? Arthur Feinstein? 18 Warren P. Felger? Sandra T. Flournoy? Lois Flynne? 19 Edward G. Giermann? Denslow Green? David J. Guy? 20 Kevin T. Haroff? Alan N. Harvey? Michael G. Heaton? 21 David E. Holland? Don Heffren? Norman Y. Herring? 22 Julie Kelly? Cynthia Koehler? Robert Lee? Martha H. 23 Lennihan? William P. Lewis? Don Marciochi, or Marciochi? 24 UNIDENTIFIED MAN: Marciochi. 25 C.O. CAFFREY: Marciochi, thank you. I'm half CAPITOL REPORTERS (916) 923-5447 777 1 Italian, you think I could pronounce it, excuse me. 2 R.W. McComas? Tim McCullough? Steve Mora? Michael H. 3 Nordstrom? Jenna Olsen? Lynnel Pollock? Patrick Porgans? 4 Mr. Porgans, is the information we have on you 5 correct on the list? 6 MR. PORGANS: I think so, it looks correct to me. 7 C.O. CAFFREY: All right. Thank you, sir. Let's 8 see, Diane Rathmann, I believe she is your colleague, 9 Mr. Birmingham? 10 MR. BIRMINGHAM: Yes. 11 C.O. CAFFREY: Betsy Reifsnider? Reid W. Roberts? 12 Donald F. Stanton? Tom Stokely? Jeffrey J. Swanson? 13 D. Tyler Tharpe? Ernest W. White -- Ernest E. White, 14 excuse me. Charles H. Willard? Christopher D. Williams? 15 And that completes the list that we have. Is there anybody 16 wishing to make an appearance whose name we have not called 17 and who we did not recognize at the beginning of the 18 proceedings in Phase I? 19 All right then. That, then, takes us to the 20 presentation of policy statements specific to Phase II for 21 parties not presenting evidence in Phase II. The first, 22 and perhaps the only party we have for that is Mr. Porgans, 23 he will go first. By a showing of hands are there others 24 wishing to make policy statements specific to Phase II? 25 Mr. Herrick, you are going to be presenting a case CAPITOL REPORTERS (916) 923-5447 778 1 in chief in Phase II, are you not? 2 MR. HERRICK: We've had discussions with 3 Mr. O'Laughlin. Our evidence is probably more germane to 4 Phase II-A. 5 C.O. CAFFREY: All right, sir. 6 MR. HERRICK: So we'll decline to put on a case in 7 chief in II, but we will be cross-examining. 8 C.O. CAFFREY: All right, sir. We will then hear 9 from you on a policy statement? Anybody else? Mr. Maddow. 10 MR. MADDOW: Yes, Contra Costa Water District will 11 not be putting on a case in chief in Phase II. But we do 12 have a brief -- I'm not quite sure at this point, 13 Mr. Chairman, if we're making an opening statement or a 14 policy statement. But we do have a brief opening to make. 15 MS. LEIDIGH: It's an opening. 16 MR. MADDOW: Do I do that separately? 17 C.O. CAFFREY: I will call after policy statements, I 18 will call for opening statements for parties not presenting 19 evidence. 20 MR. MADDOW: I'll go in that group. 21 C.O. CAFFREY: Then we will go, because the opening 22 statement for those presenting evidence is part of their 23 case in chief and we go to them last as they present their 24 cases in chief. 25 MR. MADDOW: Thank you. As usual I was confused and CAPITOL REPORTERS (916) 923-5447 779 1 I will go in that latitude. 2 C.O. CAFFREY: The process tends to be confusing from 3 time to time. All right. Then, we'll start -- I'm sorry, 4 Mr. Maddow, were you going to make yours in an opening 5 statement? 6 MR. MADDOW: Yes. 7 C.O. CAFFREY: All right. We will then start with 8 Mr. Porgans and then we will go to Mr. Herrick. 9 Mr. Porgans, good morning, sir. Welcome to you. 10 ---oOo--- 11 POLICY STATEMENT BY PORGANS AND ASSOCIATES 12 BY PATRICK PORGANS 13 MR. PORGANS: Yes, good morning, Mr. Chairperson. 14 Patrick Porgans with Porgans and Associates. As you know 15 Porgans and Associates intends to participate in all phases 16 of the so-called Bay-Delta Water Rights Hearing process, 17 fully cognizant of the fact it will not receive a fair 18 and/or impartial treatment during this hearing from the 19 Board. The Board's activities relative to this so-called 20 "hearing process," and that's in quotes, constitutes a 21 mockery of democracy. 22 Porgans and Associates objects to the hearing 23 process being fragmented into phases. P&A does not favor 24 the concept of "negotiated settlements/agreements" being 25 conducted absent of full public involvement in the process. CAPITOL REPORTERS (916) 923-5447 780 1 Albeit, if this is the decision and the dictate of this 2 Board and the so-called "stakeholders," P&A respectfully 3 advises the Board not to activate any of the settlement 4 agreements until after the entire water rights proceeding 5 is completed. 6 The primary focus of these proceedings seems to 7 have more to do with what the water purveyors, a.k.a. 8 stakeholders are willing to settle amongst themselves at 9 the public expense, exclusive of accepting fault or 10 impairing their respective water contract rights than on 11 the issues of paramount importance. 12 The paramount issues are the long-term viability 13 of the Bay-Delta estuary and whether or not water exporters 14 are using the public's water reasonably in accordance with 15 the State Constitution water quality laws and the terms and 16 conditions of their respective water right permits. 17 It is with all due respect that I am compelled to 18 state for the record that P&A is participating in this 19 hearing process under protest and duress. However, Porgans 20 and Associates's involvement may be limited by time and 21 resources. We do intend to participate -- excuse me. 22 P&A's participation will also be contingent on its ability 23 to keep up with the Board's constant delays and seemingly 24 never-ending rescheduling of the hearing process that has 25 been going on since 1987. This process is disgraceful. CAPITOL REPORTERS (916) 923-5447 781 1 Nevertheless, as an active interested party in 2 these proceedings, P&A will reserve the right to 3 cross-examine witnesses, participate in rebuttal, and 4 remain involved accordingly, as a means to exhaust the 5 administrative remedy. 6 Since the onset of this process in 1987, the cards 7 have been marked, the deck has been stacked, and the 8 process has been raped. As I stated on the record once 9 before, a blind person can see that. And I refer you to 10 the Bible, John's Chapter 9, verses 1 through 41. Read it. 11 Members of this Board have had nearly eleven years 12 to develop a coherent hearing process to facilitate the 13 water rights proceedings. Multimillions of taxpayer 14 dollars have been expended by this Board going through this 15 process. Instead of benefiting from this extremely 16 expensive, time-consuming and arduous process, its actions 17 and directives have become extremely convoluted, cryptic 18 and inordinately complicated. To simply state that it is a 19 moving target would be an understatement. 20 As a public participant in this process it's 21 apparent that this Board's role is subordinate to the 22 dictates and desires of the Wilson Administration and the 23 politically influential water purveyors, their respective 24 water contractors, and those banking and lending 25 institutions that have bank rolled water activities in this CAPITOL REPORTERS (916) 923-5447 782 1 state. 2 My experience with members of this Board, and the 3 Board's predecessors on water rights and water-right 4 related issues which involved its sister agencies, other 5 government entities and politically connected agricultural 6 land barons have convinced me beyond any reasonable doubt 7 that this Board has failed to conduct itself in a fair and 8 unbiased manner, as is implied in its mandate. 9 The Board's official records will attest and 10 support my position. And I'm ready to take this Board on 11 any day of the week to verify that fact. It's with all due 12 respect that P&A is compelled to remind the Board of its 13 duties. 14 Quote, "The Board has jurisdiction over every 15 water use in the State to prevent waste, unreasonable use, 16 or unreasonable method of diversion. In California the 17 water is viewed as the property of the citizens of the 18 state. Recognizing this, the State Water Resources Control 19 Board must determine if water is being put to a reasonable 20 and beneficial use." 21 P&A has every intention of making the reasonable 22 use of water a core issue of these proceedings, which will 23 give the Board, yet, another opportunity not to exercise 24 its power to protect the waters of the state. The 25 agricultural drainage issue in that valley has been known CAPITOL REPORTERS (916) 923-5447 783 1 for hundreds of years. We've spent hundreds of millions of 2 dollars trying to resolve the problem, the problem is worse 3 now than it's ever been before. And there's no solution in 4 sight except for this ludicrous out-of-valley drain. 5 It's no coincidence that the largest contiguous 6 area of impaired water quality, or as stated in the Federal 7 Government's data, more serious water quality of high 8 vulnerability area happens to be in the State's largest 9 agricultural productive area, the San Joaquin Valley. And 10 we contribute that to the big projects, CVP, SWP 11 activities. Over the last several years I've come before 12 this Board in good faith to apprise its members of the fact 13 that relative to a specific water rights and related issues 14 within the Board's jurisdiction water rights and illegal 15 transfers, illegal diversions, and -- et cetera. 16 C.O. CAFFREY: Mr. Porgans, there is a five-minute 17 limit on policy statements. 18 MR. PORGANS: I understand. Is my five minutes up, 19 Mr. Chairperson? 20 C.O. CAFFREY: Yes, it is. However, your policy 21 statement can be submitted in writing at any length that 22 you wish. 23 MR. PORGANS: I've got one last sentence. 24 C.O. CAFFREY: Go right ahead. 25 MR. PORGANS: Based upon the aforementioned CAPITOL REPORTERS (916) 923-5447 784 1 statements, and more important "the record," P&A suggests 2 that it would be in the public's interest that the entire 3 proceeding be subject to an independent investigation. 4 Thank you. 5 C.O. CAFFREY: All right. Thank you very much, 6 Mr. Porgans, for your always stimulating commentary. 7 Mr. Herrick. 8 MR. HERRICK: Thank you, Mr. Chairman. John Herrick 9 for South Delta Water Agency, Members of the Board, if I 10 may I'd like to ask a couple questions not forcing you to 11 answer, but hopefully to get some clarification. I'll 12 submit it in writing, if you like. 13 C.O. CAFFREY: In fairness to you, Mr. Herrick, let 14 me make sure that you understand: You are making a policy 15 statement with a five-minute limit rather than an opening 16 statement? 17 MR. HERRICK: Correct. 18 C.O. CAFFREY: All right, sir, please, proceed. 19 MR. HERRICK: I thought it might be beneficial to 20 state real briefly, I'd like the Board to clarify at some 21 point, if they could, when the parties could cross-examine 22 expert witnesses to elicit a comparison between the San 23 Joaquin River Agreement and its affects on, say, San 24 Joaquin River salinity and the aspects of the joint point 25 of diversion? CAPITOL REPORTERS (916) 923-5447 785 1 The way its set up, now, those are all separate. 2 And I'm not sure we have the opportunity to ask an expert 3 to make that comparison in the testimony part. If you like 4 I'll submit those questions in writing as sort of a 5 request. 6 C.O. CAFFREY: Well, I thank you for your question, 7 Mr. Herrick. We stop the clock at this point, so this is 8 on my time. I don't know if Ms. Leidigh wants to comment 9 very, very briefly on that if there's a clear answer, or do 10 we need to have it in writing? Because there will be 11 potentially, to quote Mr. O'Laughlin at some point during 12 one of the days last week, a potential three bites of the 13 apple for some people. So -- 14 MS. LEIDIGH: That's right. When witnesses testify 15 they can be cross-examined on any matter that is relevant. 16 And you can go beyond the scope of direct examination when 17 you cross-examine a witness who has testified in the case 18 in chief. So you can ask your questions unless they're, 19 for some reason, not relevant. We will deal with that as 20 it comes up. 21 I would suggest so far as questions are concerned 22 that it would probably be more efficient for parties to 23 just ask me at a break, or at lunchtime about their 24 questions rather than bringing them up during the 25 proceeding. And, then, if you're not satisfied with that, CAPITOL REPORTERS (916) 923-5447 786 1 you could raise them with the Chair during the proceeding. 2 C.O. CAFFREY: Thank you, Ms. Leidigh. None of which 3 is to foreclose you from wishing to cross-examine a witness 4 in Phase II, Mr. Herrick. And then, you know, taking your 5 best shot. And then if there's an objection and there's 6 some concern from the Board Members, we have to make a 7 ruling as to whether or not it's relevant right then and 8 there, or more relevant later. But we would never want to 9 tell you, no, you can't get up and do that. Because, 10 again, in the interest of being completely fair, we 11 couldn't do that without hearing the question first anyway. 12 But you may want to consult with Ms. Leidigh and see if 13 that helps out. 14 MR. HERRICK: Thank you very much. 15 C.O. CAFFREY: You still have a policy statement? 16 MR. HERRICK: Yeah, very briefly. 17 C.O. CAFFREY: Please, proceed. 18 ---oOo--- 19 POLICY STATEMENT BY SOUTH DELTA WATER AGENCY 20 BY JOHN HERRICK 21 MR. HERRICK: The South Delta Water Agency would like 22 to reaffirm its original position that the Board's task in 23 these proceedings should be to identify the causes of harms 24 to the fisheries and then require mitigation for those 25 harms and then decide if additional flows are needed. CAPITOL REPORTERS (916) 923-5447 787 1 We're once again faced with the situation where 2 we're opposing a consensus from other people. And rather 3 than it being a historic getting together of adverse 4 interests, as has been set forth in various testimonies as 5 well as periodicals, it's a group of people who can store 6 more water then they can use getting together with a group 7 of people who have caused the damage to the fisheries and 8 water quality; then they're using taxpayer funds to pay 9 those people who can store more water than they can use and 10 isolating the people causing the harm from further 11 liability. 12 We don't believe that's correct. We think that 13 the overall situation has to be addressed on the San 14 Joaquin River. And it's not being done here. Based on the 15 alternatives before the Board in the Draft EIR we could 16 actually adopt the San Joaquin River Agreement and take no 17 further actions on the San Joaquin River. Since that's a 18 possibility, we think everybody should be shocked at that, 19 that that could actually proceed. 20 The proposal for the San Joaquin River Agreement 21 actually incorporates, or assumes continued harm. It 22 assumes permit violations by the Bureau. Now, that raises 23 an interesting question. If you approve the San Joaquin 24 River Agreement and two years from now we have a drought 25 and the Bureau doesn't release enough water to meet its CAPITOL REPORTERS (916) 923-5447 788 1 permit conditions, what's the effect of us filing a 2 complaint with the Board that somebody is not meeting their 3 conditions? You've already adopted a plan that recognizes 4 that. You may actually be removing our ability to complain 5 of harm due to water permit violations. I think that's 6 very serious. 7 Because that's incorporated in the plan, we also 8 think that masks the affects of the overall program. San 9 Joaquin River Agreement people are going to tell you that 10 the net change between what they've modeled and what the 11 modeling for the agreement shows is very slight. It's very 12 slight, because you're already assuming the Bureau wouldn't 13 meet its permit conditions. 14 Finally, I think that we'd like to say as a policy 15 statement, as we will at each phase, is that without the 16 United States Government's affirmative statement that it's 17 subject to the jurisdiction of the courts, we're where we 18 were three years ago. And that is if we think there is an 19 environmental problem with the document, it doesn't matter 20 what we think. There's no redress in the courts. We think 21 that's fundamentally unfair. Nevertheless, we certainly 22 will participate in these hearings. We appreciate your 23 time. Thank you very much. 24 C.O. CAFFREY: Thank you, Mr. Herrick, we appreciate 25 your time. Is there anybody else wishing to make a policy CAPITOL REPORTERS (916) 923-5447 789 1 statement specific to Phase II that does not intend to 2 present evidence? All right, that completes the policy 3 statement phase. 4 Now, we will go to opening statements for Phase II 5 for parties not intending to present evidence. Is there 6 anybody wishing, besides Mr. Maddow, to -- Mr. Sandino, 7 Mr. Nomellini, Mr. Jackson. Any others? Did we miss 8 anybody? We have Mr. Maddow, Mr. Sandino, Mr. Nomellini, 9 and Mr. Jackson. All right, we'll take them in the order 10 of Maddow, Sandino, Nomellini, and Jackson. 11 Mr. Maddow, please come forward, sir. Good 12 morning. 13 ---oOo--- 14 OPENING STATEMENT BY CONTRA COSTA WATER DISTRICT 15 BY ROBERT B. MADDOW 16 MR. MADDOW: Good morning, Mr. Chairman, and thank 17 you very much to the Board and staff. I have an opening 18 statement that is in writing. I'm handing 21 -- I think 19 it's 20, or 21 copies to Ms. Whitney for the Board and 20 Staff. And I brought additional copies. I'm not going to 21 read the statement, so I thought it best if I simply made 22 it available. So on the break I'll put it on the table 23 outside. 24 C.O. CAFFREY: Thank you, sir. 25 MR. MADDOW: I do have a few observations that I CAPITOL REPORTERS (916) 923-5447 790 1 would like to make by way of opening on behalf of the 2 Contra Costa Water District. As the -- as the District has 3 indicated twice before when I've stood up before you, we 4 do -- the District does support the principles of 5 negotiated settlements as a way to hopefully lengthen what 6 could otherwise be an extremely time-consuming and 7 contentious hearing -- excuse me, as a way to shorten what 8 could be a lengthy, contentious water rights hearing. 9 We're going to be here for a long time as it is -- 10 C.O. CAFFREY: You must have read the article in the 11 Forum Section of the Bee over the weekend. 12 MR. MADDOW: I did not, but I could imagine. We've 13 chosen to participate in Phase II with an opening 14 statement. We do intend to do some cross-examination, I 15 believe, then, we are reserving the right to submit 16 rebuttal. We may be a little more active in Phase II-A 17 when we get there. And Contra Costa will be participating 18 in Phase V and we will be submitting a case in chief there. 19 We do have by way of opening statement, however, 20 some concerns about the San Joaquin River Agreement. And 21 some of these are really parallels to issues that were 22 raised during the workshops back in April. And I have 23 detailed some of those in this opening statement. I will 24 not read those details, because some of those involve just 25 pointing out things that have been raised before the Board CAPITOL REPORTERS (916) 923-5447 791 1 previously. I would say, however, that there are a number 2 of concerns that I would like to very briefly summarize 3 this morning. 4 One is that there are certain financial 5 ramifications of the San Joaquin River Agreement that are 6 important. And they are detailed, I believe, in 7 Article VI. And one of our concerns is that one of the 8 consequences of nonpayment of those obligations that would 9 be created, nonpayment of about four million dollars to the 10 San Joaquin River Group Authority, could result in 11 relieving the members of that group in making any flow 12 contribution to the -- to the Delta, to the flow dependent 13 objectives. 14 And our concern is that in this era of budget 15 impasse, and who knows what happens with some of the 16 various and some of the appropriations, et cetera, that 17 there could be some -- there could be some problem with 18 regards to the availability of those funds which could 19 lead, inadvertently, to a problem with the flows being met. 20 Contra Costa's main concern is that this agreement 21 do what it says, which is to provide a way in which the 22 flow dependent objectives to the water quality management 23 plan can be met. And we would hope that won't be a problem 24 in the event of some unforeseen and unfortunate financial 25 episode of the state of the federal government. CAPITOL REPORTERS (916) 923-5447 792 1 Similarly, there is a provision in the agreement, 2 I believe you have to read Article 6.6 and 13.4 together, 3 under which the agreement could be terminated by one or 4 more of the members of the Authority. Contra Costa's 5 concern is that if there should be what we think is an 6 unanticipated early termination; but if it should come to 7 pass we need to know how the flow contributions are going 8 to allocated at that point. Does everything fall back on 9 to the federal government, to the federal and state 10 government? 11 We heard the other day from Mr. O'Laughlin for the 12 first time in my hearing, that the members of the Authority 13 have reached an agreement among themselves as to how they 14 will allocate the members of the group's contributions 15 under the Delta -- under the agreement. I don't exactly 16 know what that understanding is. I think it should be a 17 part of the record in anything that this Board -- in any 18 order that this Board makes approving the San Joaquin River 19 Agreement. That would provide a bit of a milestone for the 20 Board to look at, or a touchstone for the Board to look at 21 in the event it has to cope with an unanticipated early 22 termination of that agreement. 23 Similarly, we want to note, again, this is the 24 third time we have done it, that the San Joaquin River 25 Agreement purports to deal with, is intended to deal with CAPITOL REPORTERS (916) 923-5447 793 1 flow dependent objectives and a lot of other issues related 2 to Delta water quality matters that are now going to be the 3 subject of Phase V. We need to make clear that in 4 approving the agreement that the Board recognizes that 5 we're only dealing with those flow dependent objectives and 6 we're not going to get to many other issues that the Board 7 will have before it and there may well be responsibilities 8 of a variety of the parties with regard to those other 9 nonflow dependent objectives that will still be before you. 10 Finally, we've talked a couple of times about 11 making sure that in the approval of any settlement 12 agreements that the Board not achieve a result which would 13 transfer obligations to other water users. In other words, 14 we want to make sure that we understand what the 15 responsibilities of the members of the Authority would be 16 with regard to these flow dependent objectives and what the 17 responsibilities of the USBR and DWR as the backstops would 18 be. We're concerned that we don't really know how that mix 19 of contributions is going to work. And we think it should 20 be a part of any decision that this Board makes. 21 We were particularly interested in the discussion 22 of alternative eight in the most recent portions of EIR 23 which were published, because we weren't sure we could see 24 where the contributions were being made by the San Joaquin 25 River Group Authority members in that analysis that was CAPITOL REPORTERS (916) 923-5447 794 1 contained in the most recent portions of the EIR. 2 And, finally, we hope and urge that any order 3 approving the San Joaquin River Agreement, or for that 4 matter, any of the other settlement agreements which will 5 come before you will be based upon detailed analysis of the 6 water quality impacts associated with the flow dependent 7 alternatives that these agreements seek to satisfy; as well 8 as dealing with the issue of mitigation for impacts which 9 are going to be suffered by other legal users of water such 10 as Contra Costa Water District. 11 That concludes the opening statement. As I said, 12 Mr. Chairman, I'll have quite a number of copies of the 13 written version which I'll put outside at the break. Thank 14 you very much. 15 C.O. CAFFREY: Thank you very much, Mr. Maddow. 16 Mr. Sandino. Good morning, sir, welcome. 17 ---oOo--- 18 OPENING STATEMENT OF THE CALIFORNIA 19 DEPARTMENT OF WATER RESOURCES 20 BY DAVID A. SANDINO 21 MR. SANDINO: Good morning, Mr. Caffrey, Members of 22 the Board, Board staff, we have a brief opening statement. 23 I'm appearing on behalf of the Department of Water 24 Resources. Similar to our comments at the April 21st, 25 1998, workshop the Department has been involved with the CAPITOL REPORTERS (916) 923-5447 795 1 development of the San Joaquin River Agreement -- 2 C.O. CAFFREY: Mr. Sandino? 3 MR. SANDINO: Yes. 4 C.O. CAFFREY: Technical question, are you not 5 presenting a case in chief in Phase II? 6 MR. SANDINO: We are not. 7 C.O. CAFFREY: All right. I have you on the list as 8 presenting. I will go down that list and make sure we've 9 got it straight. It sounds like some people are changing 10 plans this morning, I don't mean you particularly, but 11 others, perhaps. So, please, proceed. Sorry for the 12 interruption. 13 MR. SANDINO: Similar to our comments at the April 14 21st, 1998, workshop the Department has been involved with 15 the development of the San Joaquin River Agreement and the 16 VAMP study plan. We have supported VAMP as a study program 17 to attempt to shed light on the uncertain relationship of 18 river flow and project diversions on San Joaquin fish. 19 And, also, to confirm the benefits of a barrier at the head 20 of Old River. 21 VAMP also refers to the agricultural barriers as 22 possibly needed to mitigate the impacts on irrigation users 23 caused by the head of the Old River barrier. In April the 24 Department was not prepared to sign a letter of support for 25 the San Joaquin River Agreement. As we mentioned at the CAPITOL REPORTERS (916) 923-5447 796 1 April workshop, VAMP is one of the eight measures in the 2 Department of Interior's plan to implement the Central 3 Valley Project Improvement Act. 4 We were concerned that the implementation of the 5 other measures in the CVPIA plan would result in adverse 6 impacts on water users. We believe that it was important 7 that these measures be implemented in the spirit of getting 8 better together. 9 As a result of our discussions with the Department 10 of Interior over the last two months, our concerns have 11 recently been satisfied. We appreciate the efforts of the 12 Department of Interior in this effort. The Department of 13 Water Resources has now signed the letter of support for 14 the San Joaquin River Agreement. 15 As part of our support we have agreed to all 16 provisions in the agreement including that which makes the 17 Department and the Bureau serve as backstops, if necessary, 18 for the San Joaquin River's basin obligation for meeting 19 Delta outflow objectives under the 1995 Water Quality Plan. 20 We also believe it's very important that any impacts to the 21 interior Delta water users associated with the agreement be 22 addressed through the NEPA/CEQA process. 23 We do not intend to present direct testimony in 24 Phase II as we mentioned; however, Jim Spence of our staff 25 will participate in one of the panels presenting evidence CAPITOL REPORTERS (916) 923-5447 797 1 in support of the San Joaquin River Agreement. We do 2 intend, however, to present testimony in Phase V about the 3 relationship of the barrier component of VAMP and the 4 Department's South Delta barrier programs. That concludes 5 my opening statement. We'll have copies available outside 6 if somebody would like a copy. 7 C.O. CAFFREY: Thank you very much, Mr. Sandino. 8 Mr. Nomellini. Good morning, sir. 9 ---oOo--- 10 OPENING STATEMENT OF CENTRAL DELTA PARTIES 11 BY DANTE JOHN NOMELLINI 12 MR. NOMELLINI: Good morning, Mr. Chairman and 13 Members of the Board, Dante John Nomellini on behalf of the 14 Central Delta parties. Again, what we would like to do is 15 bring to your attention our concern with the concept of the 16 piecemeal settlement of the overall water rights situation. 17 And to focus on the San Joaquin River Agreement itself, our 18 view is that it's somewhat of a 12-year experiment and that 19 it could very well be a part of a total solution, or total 20 experiment for the San Joaquin River. 21 The elements that we're concerned about that 22 aren't included in there are: How do we take care of the 23 Vernalis water quality requirements? How do we take care 24 of the needs in the areas of origin? And, again, like when 25 we focus on Stockton East and Central and our concerns that CAPITOL REPORTERS (916) 923-5447 798 1 the Bureau has not acknowledged their needs with the 2 interim New Melones plan integrated in this, their needs, 3 perhaps, for this 12-year period aren't that substantial 4 that they can't be accommodated in a broader San Joaquin 5 River Settlement Agreement for the 12-year period. 6 Likewise, how do we deal with Friant? Should we 7 ignore Friant for 12 years? Are we going to be able to 8 ignore Friant for 12 years? We could with the San Joaquin 9 River Agreement as the backstop broaden that. There could 10 be water purchases from willing sellers in the Friant 11 service area that could be used to come down the San 12 Joaquin River that will help alleviate our salinity in the 13 San Joaquin as well as the flow problem. So we see the 14 potential of this particular agreement, in a modified form, 15 as being the basis for the 12-year experiment, but we do 16 not support it as a piecemeal, as only a part. 17 We will be very interested in the testimony and in 18 participating through cross-examination to better 19 understand the source of the water for the San Joaquin 20 River Agreement. It has, in our opinion, not been clearly 21 identified. And, therefore, the impacts on summer flows 22 and those kinds of things that we're concerned about have 23 not been adequately addressed. Perhaps, they will be as 24 the testimony gets expanded through cross-examination. 25 So, thank you very much. CAPITOL REPORTERS (916) 923-5447 799 1 C.O. CAFFREY: Thank you, Mr. Nomellini. 2 MEMBER BROWN: Mr. Chairman? 3 C.O. CAFFREY: Yes, Mr. Brown. 4 MEMBER BROWN: I have a question for you, 5 Mr. Nomellini. Are you still concerned with the piecemeal 6 decision with the pending ruling on Mr. O'Laughlin's 7 motion? 8 MR. NOMELLINI: I want to restate it, because it's 9 not clear to me what the impact is going to be on finding, 10 you know, for this first Phase II part as to the 11 equivalency in the plan. To me the plan is an integrated 12 thing -- 13 MEMBER BROWN: I mean the process that we've set up 14 here. 15 MR. NOMELLINI: I feel more comfortable with the 16 process. 17 MEMBER BROWN: Good. 18 MR. NOMELLINI: I think we'll have an opportunity to 19 do it. I'm not sure I understand the full impact of the 20 phasing. And, therefore, I'm stating my concern again. 21 And the equivalency to the plan, to us the plan is a 22 composite. We've never been able to get a separately 23 identified -- 24 MEMBER BROWN: I was just on the process, not on the 25 equivalency hearing issue. CAPITOL REPORTERS (916) 923-5447 800 1 MR. NOMELLINI: Yeah, the process I think we're in a 2 process that can work. 3 MEMBER BROWN: Good. It was important that I hear 4 that. 5 MR. NOMELLINI: Yeah. 6 MEMBER BROWN: Thank you. 7 MR. NOMELLINI: And I'm comforted by the rulings. 8 I'm not sure I've got all the understanding I need as to 9 the exact dividing line. But basically the equivalency 10 question on the plan, we have never seen the plan as 11 setting forth a full year-round agricultural water quality 12 standard and we've yapped about that over the years. 13 MEMBER BROWN: What's -- 14 C.O. CAFFREY: He's making a policy statement now, 15 Mr. Brown. You are beyond Mr. -- 16 MR. NOMELLINI: I understand that. 17 C.O. CAFFREY: I want to recognize for the record 18 that you're beyond Mr. Brown's question, but I'm not 19 cutting you off, because you still have some time. 20 MR. NOMELLINI: All right. I'll be very brief. We 21 don't view the water quality plan in the segments that the 22 phases attempt to address -- for example, just the water 23 flow at Vernalis, because we have to depend on the fishery 24 protections to provide agricultural protection indirectly 25 because of the gaps. And in previous Boards, I don't know CAPITOL REPORTERS (916) 923-5447 801 1 if all of you were here, but it was explained that 2 agricultural is protected by the fishery and the municipal 3 requirements and all of those things as a composite. And, 4 therefore, we see them all mixed together and we look at 5 the end result of an impact on our particular clients. 6 Thank you. 7 C.O. CAFFREY: Thank you, Mr. Nomellini. 8 Mr. Jackson. Good morning, sir. 9 ---oOo--- 10 OPENING STATEMENT BY THE REGIONAL COUNCIL OF RURAL COUNTIES 11 BY MICHAEL JACKSON 12 MR. JACKSON: Good morning. The -- Michael Jackson, 13 I'm appearing for the Regional Council of Rural Counties. 14 The Regional Council of Rural Counties opposes the VAMP on 15 essentially two grounds. One is that it puts the New 16 Melones Operating Agreement underneath the VAMP. And, 17 therefore, protects it in some fashion from its clear 18 violation of the water quality standards at Vernalis and 19 clear violations of the water quality standards contained 20 in the 1995 Order 95-6. 21 We also oppose the VAMP because it results in the 22 release of area of origin water that allows exporters to 23 export that water. In other words, it takes water legally 24 owned upstream and through the mechanism of the VAMP and 25 the operation of New Melones and the nonoperation of CAPITOL REPORTERS (916) 923-5447 802 1 Friant, which is a Bureau facility, allows the Bureau for 2 12 years to violate the water quality law in the guise of 3 attempting to solve a fish flow problem. 4 We believe the evidence will clearly show that 5 there is no advantage to the fish in terms of the VAMP 6 program. The VAMP program, we believe, will be shown by 7 the evidence to be a massive experiment in low flows in 8 holding down the flow on good years on the San Joaquin 9 beyond what it would be to hold it within the amount, the 10 7,000 csf flow in a year in which there was 10 to 12,000 11 csf, will be a damage to the fish at that time. 12 So we believe that the VAMP, while an interesting 13 arrangement in terms of the users of water and maybe a step 14 forward in terms of their working together to solve some 15 flow problems, is in reality a way for the Bureau of 16 Reclamation to violate the law. And we think that that 17 will become very clear. 18 We also believe that the procedure that the Board 19 has outlined is -- has gone a long way to getting to a 20 full-cumulative review of what happens in the South Delta. 21 By putting II-A behind both II, which is the explanation of 22 the agreement, V which is the water quality debate about 23 whether or not this program meets the law, and now that the 24 evidence -- some of the evidence is in on VI and VII it 25 becomes clear how interrelated they are with the decisions CAPITOL REPORTERS (916) 923-5447 803 1 in V and II-A. 2 So it would seem to me that we are reaching a 3 point where the facts in this case are bringing it back 4 together and not allowing it to be segmented. And I think 5 the Board is recognizing that in its most recent order. 6 It is critical that the Board understand that the 7 VAMP deals only with flow. It does not deal with the 8 doubling standard. It, certainly, makes it impossible to 9 reach the Anadromous Fish Restoration Plan standards for 10 the next 12 years. And I would ask the Board to 11 particularly examine what we gain out of the VAMP study, 12 since, clearly, the VAMP flows will be lower than any other 13 flow. And so if the study is not real, and does not result 14 at the end of 12 years, or as the evidence will show from 15 the testimony, 15 or 18 years, whatever is necessary to get 16 the right flow periods to go through this, it will last 17 longer than 12 years given a normal rainfall distribution. 18 The evidence will show that at the end we will 19 know no more than we did at the beginning. We will simply 20 have allowed the Bureau to kill the fish and to violate the 21 water quality standard in the guise of an agreement. Thank 22 you very much. 23 C.O. CAFFREY: All right. Thank you, Mr. Jackson. 24 That completes the opening statement -- 25 MR. BIRMINGHAM: Excuse me, Mr. Chairman? CAPITOL REPORTERS (916) 923-5447 804 1 C.O. CAFFREY: Yes, Mr. Birmingham. 2 MR. BIRMINGHAM: Thank you. If I may, Mr. Sandino's 3 comments reminded that I need to state clearly for the 4 record, I believe it's been stated before but I wanted to 5 make sure it was on the record for this phase of the water 6 rights hearing, that like the Department of Water Resources 7 Westlands Water District and the San Luis and Delta Mendota 8 Water Authority had some issues with the Department of the 9 Interior that had to be clarified before those two agencies 10 could sign the letter of support for the San Joaquin River 11 Agreement. 12 Those issues have now been resolved. And both 13 Westlands and the San Luis and Delta Mendota Water 14 Authority have now signed the letter of support for VAMP 15 and support its adoption by this Board. 16 C.O. CAFFREY: Appreciate that clarification, 17 Mr. Birmingham. Mr. Porgans? 18 MR. PORGANS: Mr. Chairman, I'm sorry I have to rise 19 because I need to interject something as part of an opening 20 statement even though I didn't ask to be recognized. 21 C.O. CAFFREY: Mr. Porgans, I want to make a 22 clarification here, I am not going to allow the opening 23 statement phase to turn into a debate. 24 MR. PORGANS: It's not a debate. 25 C.O. CAFFREY: That's why I called for the list of CAPITOL REPORTERS (916) 923-5447 805 1 names, and I don't want people to, because they're 2 stimulated by something they heard, think they can stand up 3 at the last minute and say they're going to make an opening 4 statement. That's not just for you, Mr. Porgans, it's for 5 everybody in the audience. There is a time and place for 6 argument. You can do it in your cross-examination. You 7 are appearing here today, you can cross-examine the 8 witnesses. 9 MR. PORGANS: I appreciate that. 10 C.O. CAFFREY: If you're asking for a point of order, 11 or a clarification I will allow that, but I do not want to 12 hear anything on the merits because you already had that 13 opportunity. 14 Why do you rise, Mr. Porgans? 15 MR. PORGANS: I rise because I heard something that I 16 take exception to. How would I have known that? Tell me 17 how I would know I would take exception to something. I'm 18 not psychic. 19 C.O. CAFFREY: You need to deal with that in 20 cross-examination I would think. Ms. Leidigh? 21 MS. LEIDIGH: I would also suggest in closing 22 statements, or brief. 23 C.O. CAFFREY: I'm reminded, that's correct. You 24 will have an opportunity to submit a closing statement at 25 the end of the phase. CAPITOL REPORTERS (916) 923-5447 806 1 MR. PORGANS: Thank you very much, Mr. Chairperson. 2 C.O. CAFFREY: You're very welcome, Mr. Porgans. 3 All right, that will -- 4 MS. CAHILL: Mr. Chairman, is this the time that you 5 do want to determine who will be presenting cases in chief? 6 C.O. CAFFREY: Yes, I was about to ask, Ms. Cahill, 7 because I believe some people have made some changes of 8 plans. So I was just going to go down the list that I had 9 and either add or cross off who, in fact, actually wishes 10 to present evidence this morning for Phase II. 11 So, obviously, the San Joaquin River Group is 12 going to be present evidence or we wouldn't be having a 13 Phase II. Am I correct, Mr. O'Laughlin? You haven't 14 changed your mind, have you? 15 MR. O'LAUGHLIN: Not yet. 16 C.O. CAFFREY: "Not yet," he says. I'll come back to 17 you in a moment, Mr. O'Laughlin, because you probably want 18 some clarification for the record and all the parties as to 19 the size of your presentation, how many witnesses you are 20 going to have. So I will come back to that a moment. The 21 other organizations that I have here are the Department of 22 Interior, but is the Department of the Interior going to 23 appear -- 24 MR. BRANDT: Correct. 25 C.O. CAFFREY: -- on behalf of the Bureau and any CAPITOL REPORTERS (916) 923-5447 807 1 other agency? 2 MR. BRANDT: We have -- both Fish and Wildlife 3 Service and the Bureau and the Department of Interior we 4 are appearing on behalf of the entire Department. 5 C.O. CAFFREY: All right. So you will be 6 representing both the Bureau and U.S. Fish -- 7 MR. BRANDT: We are one department, yes. 8 C.O. CAFFREY: You brought two hats in other words. 9 Thank you, sir. 10 MR. BRANDT: We don't quite do it that way, but I 11 represent the Secretary. It's always a balance, sir. 12 C.O. CAFFREY: We don't usually allow for disguises 13 here, but our Rules of Evidence are very broad. Department 14 of Fish and Game? 15 MR. CAMPBELL: Yes. 16 C.O. CAFFREY: Who's representing the Department of 17 Fish and Game? 18 MR. CAMPBELL: Matthew Campbell of the Attorney 19 General's Office. 20 C.O. CAFFREY: Thank you, sir. I recognize you now. 21 Environmental Defense Fund? 22 MR. SUYEYASU: Yes. 23 C.O. CAFFREY: Mr. Suyeyasu? 24 MR. SUYEYASU: Yes. 25 C.O. CAFFREY: Thank you, sir. South Delta Water CAPITOL REPORTERS (916) 923-5447 808 1 Agency? 2 MR. HERRICK: No, Mr. Chairman. As I said before, 3 we'll put it on in Phase II-A. 4 C.O. CAFFREY: Right. Thank you, sir. City of 5 Stockton? Actually, I'm just calling for the list right 6 now, Ms. Cahill. 7 MS. CAHILL: Let me explain now. 8 C.O. CAFFREY: Sure. Absolutely. 9 MR. HILDEBRAND: We are continuing discussions and 10 negotiations with the proponents of the agreement. We had 11 submitted testimony for Phase II and in the light of your 12 most recent ruling, we now believe that that testimony 13 should be reserved until either Phase V, or Phase II-A. We 14 will, certainly, participate in Phase V. We are likely to 15 participate in Phase II-A. And we would present that 16 evidence, if necessary, at that time. Because we're not, 17 then, presenting a case in chief, there are just three 18 points I would like to make. 19 C.O. CAFFREY: Please. 20 MR. HILDEBRAND: We understand, then, that this phase 21 doesn't address water quality in the San Joaquin River in 22 those areas that will be covered in Phase V, if the 23 agreement doesn't address that. 24 C.O. CAFFREY: That's correct. 25 MR. HILDEBRAND: The City of Stockton has filed a CAPITOL REPORTERS (916) 923-5447 809 1 water rights application and we assume the San Joaquin 2 River Agreement doesn't affect the Board's ability to 3 process that application during the 12-year period it's in 4 effect. And we're hoping that the proponents will make it 5 clear that if other parties later do agree with the San 6 Joaquin River Agreement that they will also be given the 7 opportunity to sign it. And so we will be participating 8 today through cross-examination. 9 C.O. CAFFREY: Ms. Leidigh, did you have a comment? 10 I'm sorry. 11 MS. LEIDIGH: I was thinking that since the San 12 Joaquin River Agreement is an agreement among the parties 13 that it's really up to the parties whether or not somebody 14 else has the opportunity to sign. It's not up to the 15 Board. 16 MS. CAHILL: Thank you. 17 C.O. CAFFREY: Stating that clarification we 18 appreciate you putting your clarifications on the record, 19 Ms. Cahill, thank you. Of course, you obviously know you 20 retain the right to cross-examining anybody in this phase 21 if you so wish. 22 MS. CAHILL: Yes, we intend to. 23 C.O. CAFFREY: I have all on one line Diablo Water 24 District's Cities of Antioch and Pittsburg, do those 25 parties, or that party wish to present a case in chief? CAPITOL REPORTERS (916) 923-5447 810 1 All right. Then, is Tuolumne Utilities District wishing to 2 present a case in chief? 3 MR. GALLERY: Yes. 4 C.O. CAFFREY: Good morning, Mr. Gallery. 5 MR. GALLERY: We do intend to present a case in chief 6 in Phase II. 7 C.O. CAFFREY: All right. Thank you, sir. I also 8 have Paradise Irrigation District wishing to present a case 9 in chief. No one representing Paradise? 10 MR. SEXTON: I represent the District, but they have 11 no intention of presenting a case in chief in Phase II. 12 C.O. CAFFREY: All right. Thank you, sir. And I 13 believe that leaves State Water Contractors wishing to 14 present a case in chief. 15 MR. SCHULZ: Yes. I will be presenting Chuck Hanson 16 for the State Water Contractors. 17 C.O. CAFFREY: All right. Thank you, sir. I think 18 we will then go in the order that I read: The San Joaquin 19 River Group, the Department of Interior, the Department of 20 Fish and Game -- 21 MR. O'LAUGHLIN: Mr. Chairman? 22 C.O. CAFFREY: I'm sorry, are there more? Excuse me. 23 MR. O'LAUGHLIN: Yeah, I don't see Jeanne Zolezzi, 24 but I had discussions with her about Stockton Water 25 District that they will be presenting a case in chief in CAPITOL REPORTERS (916) 923-5447 811 1 Phase II. 2 C.O. CAFFREY: Thank you, Mr. O'Laughlin, Stockton 3 East. Anybody else? 4 MR. CAMPBELL: Mr. Chairman, the Department of Fish 5 and Game will be presenting its case in chief as part of 6 the San Joaquin River Group presentation, so there will be 7 no need to call for a separate case in chief of the 8 Department of Fish and Game. 9 MR. O'LAUGHLIN: Mr. Chairman, can I clarify 10 something real quick? 11 C.O. CAFFREY: Sure, Mr. O'Laughlin, I was going to 12 go to you, but -- 13 MR. O'LAUGHLIN: We have been coordinating with the 14 parties to the San Joaquin River Agreement about presenting 15 a coordinated package to the Board. And in regards to 16 that, the San Joaquin River Agreement, the San Joaquin 17 River Group Authority, the Department of Interior, the 18 California Department of Fish and Game, and the State Water 19 Project Contractors all will be presenting their cases 20 together as one. And that -- 21 C.O. CAFFREY: The State Water Contractors, also? 22 MR. O'LAUGHLIN: Yes, the State Water Contractors as 23 well. And that goes to the motion I made previously. If I 24 could for just a minute, what we envision -- 25 C.O. CAFFREY: Let me just make sure, I'm a little CAPITOL REPORTERS (916) 923-5447 812 1 tactile by nature so -- 2 MR. O'LAUGHLIN: Okay. 3 C.O. CAFFREY: -- just let me make sure that I have 4 the list right. You will combine your presentation with 5 the State Water Contractors, the Department of the 6 Interior, the Department of Fish and Game. That, then, 7 leaves the other cases in chief which would be, then, 8 Environmental Defense Fund, the Tuolumne Utility District, 9 and the Stockton East District. Is there anybody else? 10 MEMBER BROWN: How about the City of Stockton? 11 C.O. CAFFREY: They have withdrawn, Ms. Cahill will 12 not present evidence, but she reserves, of course, the 13 right to cross-examine. Mr. Jackson? 14 MR. JACKSON: Yes, since this testimony is all going 15 to be coordinated by Mr. O'Laughlin and his group, it's 16 very likely to be a panel of a large number of people who 17 testify here. 18 C.O. CAFFREY: We're going to move over to the park. 19 MR. JACKSON: -- which makes it -- which makes it -- 20 C.O. CAFFREY: I had a good night sleep, forgive me 21 everybody. 22 MR. JACKSON: -- which makes it a nice way to hide 23 all of this wonderful testimony from cross-examination if 24 we're limited in terms of all of them coming up there 25 together and we have one hour per panel. CAPITOL REPORTERS (916) 923-5447 813 1 Is there -- is there some way that given the 2 nature of the comprehensive joining of these groups that 3 you could keep that in mind in cross-examination that, 4 essentially, there's a bunch of government questions, a 5 bunch of Fish and Game questions, a bunch of agreement 6 questions, if these people come up here as a herd we'll 7 never get to them. 8 MR. O'LAUGHLIN: Actually, Mr. Jackson and I agree 9 again. 10 C.O. CAFFREY: I'm somewhat familiar I think with 11 what you're going to request here, Mr. O'Laughlin, if it's 12 related to your written motion, but if you'll bear with us 13 a moment, Mr. Jackson, I think Mr. O'Laughlin and I will 14 have some discussion to try to iron this out. 15 MR. JACKSON: Thank you. 16 C.O. CAFFREY: Go ahead, Mr. O'Laughlin. 17 MR. O'LAUGHLIN: What we envision doing, Mr. Chairman 18 and Members of the Board, we have six witnesses to call 19 this morning. They are the biologists that we have 20 previously disclosed. They are Mr. Morhardt, Pat Brandes, 21 Marty Kjelson, Bruce Herbold, Chuck Hanson, Bill 22 Loudermilk. They will be presenting evidence. 23 They will come up individually we hope today, 24 present their testimony, a summary of the written testimony 25 that they will present it. And, then, for purposes of CAPITOL REPORTERS (916) 923-5447 814 1 coordination, we would like them, then, all sit as a panel 2 at the end and be subject to cross-examination by everyone 3 in the audience who wishes to cross-examine them. 4 I realize I agree fully with Mr. Jackson that 5 there is a wealth of information that would be presented. 6 And it may be that since there's six panelists up here, we 7 should kind of look at the rules a little bit and see for 8 fairness and full explanation that parties be given an 9 adequate time to cross-examine all the six witnesses at 10 once. 11 What we would then envision doing, and so that 12 everybody knows what the present scope of our testimony is, 13 after the biologists have been presented, cross-examined, 14 and redirected, and so forth on down the line, once we 15 finish with the biologists what we then purpose doing is 16 calling Mr. Van Camp to explain the Appendix B to the San 17 Joaquin River Agreement. He will, then, be subject to 18 cross-examination on that testimony and redirect. 19 We would then envision calling Mr. Van Camp, 20 again, on a separate item which is the division agreement 21 among the San Joaquin River Authority members on who's 22 going to make what water available and how. And after that 23 is done we'll have cross-examination and redirect. Mr. Van 24 Camp would then be done. Our next witness we would call 25 would be Mr. Dan Steiner, hydrologist, to explain the CAPITOL REPORTERS (916) 923-5447 815 1 hydrology and flow patterns from the San Joaquin River 2 Agreement. After Mr. Steiner is done we would then call 3 Mr. Lowell Ploss, together, and he will explain the impacts 4 to New Melones due to the San Joaquin River Agreement. 5 And after Mr. Ploss is done, we will have Doctors 6 List and Pulson (phonetic) explain the impacts of the San 7 Joaquin River Agreement on the head of Old River barrier on 8 hydraulics in the South Delta. That is the scope and 9 extent of our testimony we will be presenting. I think the 10 other panels are small distinction issues that we can keep 11 separated. 12 And we would ask the Chair and the Board to the 13 degree these witnesses would testify on Tuesday -- I mean 14 on Wednesday of this week, or Tuesday of next week, that we 15 immediately go to their cross-examination and redirect so 16 that they can be excused and not come back later on after 17 the entire matter is done. And that's what we have 18 envisioned for our presentation. 19 C.O. CAFFREY: Let me ask on that: Is there any 20 objection from any members in the audience to handling it 21 that way since we'll have such a large number of witnesses, 22 so we don't have to keep everybody standing around 23 indefinitely? I'm referring to the cross-examining after 24 the appearance of each witness, or grouping of witnesses as 25 a panel. No objection. CAPITOL REPORTERS (916) 923-5447 816 1 Then that's how we will proceed. I thank you, 2 also, Mr. O'Laughlin, for accommodating everybody. I think 3 that sounds fair. I saw Mr. Jackson nodding in the 4 affirmative as you were describing the process. Let me say 5 that in the spirit of this cooperation, the approach we 6 will take since you're combining a number of individuals 7 who might, otherwise, present a case in chief, in fairness 8 to all, we will not hold you to the three-hour limit for 9 the case in chief, per se. 10 But we will use as the driver, I believe, the 11 20-minute limitation for the presentation by each witness. 12 A 20-minute limit per witness for the presentation of their 13 direct. Since it is a summary, that would probably give 14 you somewhere in the nature, I haven't added it up, but I 15 assume five or six potential hours for presentation. I 16 would also say, then, that with regard to 17 cross-examination, as we've stated before, 18 cross-examination the limitation we put there I believe 19 it's a hour? 20 C.O. STUBCHAER: It's a goal. 21 C.O. CAFFREY: It's a goal, it's an hour per party 22 per witness, which could mean a long, long -- 23 C.O. STUBCHAER: Or per panel. 24 C.O. CAFFREY: Or per panel, thank you, 25 Mr. Stubchaer. We won't hold people to a hour if they can CAPITOL REPORTERS (916) 923-5447 817 1 give us a showing that they have to continue with 2 relevancy. So I believe that would satisfy Mr. Jackson and 3 the others. I don't see any objection. So do you wish -- 4 you were going to add something, Mr. O'Laughlin? 5 MR. O'LAUGHLIN: Thank you, Mr. Chairman. Just some 6 good news for everybody participating in the process, we 7 believe that we will clearly fall under the three hours for 8 the presentation of our direct testimony in this matter. 9 So hopefully we will move expeditiously through that. And 10 the other point that I wanted to raise was in regards to 11 rebuttal testimony, we will withdraw that portion of our 12 motion that had to do with rebuttal testimony, because it 13 was answered in the previous motion. 14 C.O. CAFFREY: All right. Thank you, sir. 15 MR. O'LAUGHLIN: The only other thing that I would 16 ask, Mr. Chairman, is that in regards to opening 17 statements, we had previously submitted within our written 18 testimony an opening statement by Mr. Robbins. Mr. Short, 19 who is not present here today, also wanted to make an 20 opening statement. They're separate and distinct opening 21 statements for -- on behalf of the San Joaquin River Group 22 Authority and its members. And Mr. Ross Rogers will be 23 making that opening statement today for the San Joaquin 24 River Group Authority. 25 C.O. CAFFREY: Well, in the spirit of developing CAPITOL REPORTERS (916) 923-5447 818 1 these somewhat new definitions since we're combining 2 everything, I can see no reason for not allowing you to 3 have -- did you describe two or three opening statements? 4 MR. O'LAUGHLIN: It's two, Mr. Caffrey. 5 C.O. CAFFREY: Two opening statements, since you're 6 combining at least three cases in chief, we will certainly 7 allow you to do that. 8 MR. O'LAUGHLIN: The Department of Interior, I 9 believe, is going to make a brief statement as well and so 10 is the California Department of Fish and Game. I would 11 imagine that the opening statements will not exceed more 12 than a half an hour at the max. 13 C.O. CAFFREY: In total? 14 MR. O'LAUGHLIN: Yes. 15 C.O. CAFFREY: Then was Mr. Brandt going to make the 16 first opening statement? 17 MR. BRANDT: No. 18 C.O. CAFFREY: Why don't you give me the names in 19 order and we'll jot them down here. 20 MR. O'LAUGHLIN: Sure. We will start with Mr. Ross 21 Rogers from Merced Irrigation District making a opening 22 statement on behalf of the San Joaquin River Group 23 Authority. Mr. Rogers has prepared that opening statement, 24 submitted copies in writing to the Board. There are many 25 copies out on the table in the hallway of that opening CAPITOL REPORTERS (916) 923-5447 819 1 statement. 2 Unfortunately, Mr. Allen Short, who has been the 3 coordinator for the San Joaquin River Group Authority was 4 not able to be present here today. He wanted to be 5 present, he wanted to make this opening statement. And 6 Mr. Ross Rogers has kindly agreed to fill in for Mr. Short 7 and present that statement to the Board today. 8 C.O. CAFFREY: All right. While you're here, 9 Mr. O'Laughlin, sorry to use you as the traffic cop. 10 MR. O'LAUGHLIN: That's fine. 11 C.O. CAFFREY: Could you repeat in the order of your 12 preference the other opening statements? 13 MR. O'LAUGHLIN: Then we'll go to the Department of 14 Interior, Mr. Alf Brandt and then the California Department 15 of Fish and Game. 16 C.O. CAFFREY: Mr. Campbell? 17 MR. O'LAUGHLIN: Mr. Campbell and finally Mr. Ken 18 Robbins from the Merced Irrigation District. 19 C.O. CAFFREY: All right. Thank you very much, sir. 20 Mr. Robbins, you had something to add? 21 MR. ROBBINS: Just to clarify, I believe that the 22 opening statements may actually exceed a half an hour 23 combined. What I'm going to try to do in my portion of the 24 opening statement is actually run through the agreement and 25 describe the elements of that agreement and what we intend CAPITOL REPORTERS (916) 923-5447 820 1 to show by way of proof. 2 C.O. CAFFREY: Well, we don't actually have a time 3 limit, per se, on opening statements. We just haven't 4 dealt with that. And also these are the opening statements 5 within the context of the presentation of the total case. 6 Mr. Stubchaer and I discussed this in the recent 7 past and we're inclined to put about a 15-minute limitation 8 on each opening statement. So I did not necessarily feel 9 that while the offering was made of something in the 10 neighborhood of half an hour, it's not necessary to confine 11 yourself to strictly that. That is helpful if you can be 12 brief. 13 MR. ROBBINS: We will certainly try to do so. 14 C.O. CAFFREY: We'll time each opening statement at 15 15 minutes and ask people not to go over that amount of 16 time. 17 MR. ROBBINS: Thank you. 18 C.O. CAFFREY: Thank you, Mr. Robbins. Mr. Rogers, 19 good morning, sir, welcome. 20 ---oOo--- 21 OPENING STATEMENT BY SAN JOAQUIN RIVER GROUP 22 BY ROSS ROGERS 23 MR. ROGERS: Good morning, Chairman Caffrey, thank 24 you and Members of the Board. I am Ross Rogers, General 25 Manager of the Merced Irrigation District and a member of CAPITOL REPORTERS (916) 923-5447 821 1 the San Joaquin River Authority. And as was stated I am 2 representing Allen Short the Coordinator of the Authority. 3 this morning. And I'm very pleased to introduce and 4 kickoff the San Joaquin River Agreement, a long time in the 5 making and a truly historic achievement. 6 Matters regarding the San Joaquin River, 7 Sacramento River, the Bay-Delta have been extremely 8 contentious for many years, 35 or more. Adversarial 9 Bay-Delta proceedings resulted in the creation and 10 polarization of three groups of water users: Agricultural, 11 urban, and environmental. And while at any given moment 12 any two of those three groups may have gotten along 13 together, it's very rare and very difficult to see all 14 three in agreement. And we are moving towards that 15 agreement of all three groups, very close. 16 This all began to shift back in the early '90s 17 when Governor Wilson challenged all of us, all the water 18 users throughout the State to work together to resolve the 19 problems facing us in the entire State regarding water 20 supply, water quality, and the preservation of 21 environmental resources. His message was clear and 22 unmistakable, "We must work together." 23 It did not deal with the series of adversary 24 proceedings where the immediate goal had been victory over 25 your opponent and not resolution of the problem. In the CAPITOL REPORTERS (916) 923-5447 822 1 first fruit of that policy was the Accord. And after this 2 Board adopted the 1995 Water Quality Control Plan, several 3 of the east side irrigation districts in the Central Valley 4 got together and formed the San Joaquin River Tributaries 5 Association consisting of the South San Joaquin, Oakdale, 6 Modesto, Turlock, and Merced Irrigation Districts. 7 And the goal of that group was to collectively and 8 cooperatively develop an agreement, a comprehensive, 9 scientifically-based response to the Vernalis objectives 10 adopted by this Board. Along with the challenge issued by 11 the Governor that I mentioned earlier, this Board also 12 instructed the parties to seek consensus-based solutions to 13 the issues raised by the intended implementation of the 14 1995 Water Quality Control Plan. 15 And SJRTA took this opportunity and broadened its 16 focus and efforts. It began by expanding membership to 17 include the San Joaquin River Exchange Contractors Water 18 Authority and then the Friant Water Users Water Authority 19 and then formed the present San Joaquin Group River 20 Authority. This group, the SJRGA, along with the City and 21 County of San Francisco then began a long and arduous task 22 of reaching out to discussing with and attempting to find 23 common ground among the export contractors, both state and 24 federal, environment communities, and the various relevant 25 state and federal agencies concerning the implementation of CAPITOL REPORTERS (916) 923-5447 823 1 the Vernalis flow standards and objectives. 2 The goals of such efforts was to design a 3 temporary flow regime measured at Vernalis, which would 4 provide protection for fishery resources equivalent to that 5 contained in the '95 Plan and provide a basis for gathering 6 data information concerning a relationship between the 7 flows at Vernalis, the installation of a barrier at the 8 head of Old River, and export pumping affects and the 9 salmon survival smolt -- affects of salmon smolt survival 10 which could be used to support the establishment of a 11 long-term flow standard at Vernalis. 12 Over the 18-month period, the Authority, SJRGA 13 Authority spent over two million dollars for this goal on 14 regular discussions held among the groups, the interested 15 parties on hydrologic modeling efforts and actually drafted 16 a flow regime. And these meetings, held at all hours of 17 the day and night and many of them even at the expense of 18 watching Dodger and Giants critical playoff games and 19 National League playoff games last fall, these meetings 20 were held at that exclusion. It's very important to 21 consider that. 22 The meetings were attended by the SJRGA group, 23 export contractors, the EPA, the Bureau of Reclamation, the 24 Fish and Wildlife Service, Department of Water Resources, 25 California Department of Fish and Game, City and County of CAPITOL REPORTERS (916) 923-5447 824 1 San Francisco, East Bay Municipal Utilities District, the 2 Natural Heritage Institute, the Bay Institute, National 3 Resources Defense Council, Environmental Defense Fund, and 4 Save the Bay Association. 5 These meetings became the forge upon which the 6 issues involving the implementation of the Vernalis flows 7 and objectives were hammered out. All issues were 8 discussed at length and no idea, suggestion, or point of 9 view was either accepted, or rejected until it had been 10 thoroughly considered by all the participants. These 11 efforts resulted in the San Joaquin River Agreement, which 12 is the subject of this phase. 13 The agreement provides for up to 110,000 acre feet 14 of water provided annually over a 12-year period in 15 accordance with the Vernalis Adaptive Management Plan, or 16 VAMP. And this plan was proposed by Dr. Herbold and 17 Dr. Hanson. The water will come from the individual 18 members of the Authority, the San Joaquin River Group 19 Authority, based on a certain schedule. And to ensure 20 compliance, members of that Authority need to make -- must 21 make certain physical improvements. 22 Although involved in the process that led up to 23 the agreement, not all of the interested parties signed a 24 statement of support for the agreement, as has been 25 mentioned earlier. Several of the environmental interests CAPITOL REPORTERS (916) 923-5447 825 1 particularly have concerns regarding the funding of the 2 agreement. And, thus, have not signed. However, since our 3 last appearance in April and as has been mentioned earlier 4 this morning, the Westlands Water District, the San 5 Luis/Delta Mendota Water Authority, and the California 6 Department of Water Resources have signed a statement. 7 You heard recently from several California 8 legislators who have a history of involvement with water 9 issues in representing their support for the agreement. 10 The comments made by Senator Costa, Senator Monteith and 11 Assemblyman Cardoza each stress the central theme of the 12 Governor's water policy: That we must work together to 13 solve these issues. 14 The San Joaquin River Agreement is, as I stated 15 earlier, truly a historic agreement, which was reached 16 through the cooperative and collaborative efforts of 17 parties that really had only spoken to each other through 18 their respective attorneys in the past. As to the San 19 Joaquin River, the challenge issued by the Governor and 20 this Board to end the water wars of the past has been 21 answered. 22 It is the hope of the SJRGA and all of those 23 parties who have signed a statement of support, or 24 otherwise endorsed the agreement that this Board will look 25 past the myriad of concerns about the agreement which are CAPITOL REPORTERS (916) 923-5447 826 1 specific to certain entities or individuals, and instead, 2 recognize the agreement as a workable plan which benefits 3 the State as a whole. 4 Those concerns about the agreement will 5 undoubtedly be raised in this and other phases of the water 6 rights hearings. Again, I appreciate the opportunity to 7 address this Board to introduce the San Joaquin River 8 Agreement. I thank you very much. 9 C.O. CAFFREY: All right. Thank you, Mr. Rogers. 10 Mr. Brandt. 11 ---oOo--- 12 OPENING STATEMENT BY THE SAN JOAQUIN RIVER GROUP 13 BY U.S. DEPARTMENT OF THE INTERIOR 14 BY ALF W. BRANDT 15 MR. BRANDT: Thank you, Mr. Chairman. I heard that 16 you referenced the article this weekend in the Sacramento 17 Bee about these hearings and, of course, I read it. And 18 I'm sure most people in this room have read that article. 19 You would have seen in that article that the San Joaquin 20 River Agreement was called a "hoax." It complains about 21 us, the Federal Government, spending money even in years 22 when there is enough water in the San Joaquin River 23 Agreement -- sorry, in the San Joaquin River to meet the 24 standards. 25 So I'm here a little bit today to just give you CAPITOL REPORTERS (916) 923-5447 827 1 some background, a little bit of why the Department of the 2 Interior supports the San Joaquin River Agreement. A 3 little bit what it does and what it does not. And I think, 4 perhaps, the key part here is that this, as Ross mentioned, 5 reduces the conflict and helps to spread the burden. And 6 that reducing the conflict in the San Joaquin River is, 7 perhaps, one of the most value things that this agreement 8 does. 9 We agree on certain goals, that you'll hear about 10 later today, that involve both studies as well as helping 11 fishery. It avoids litigation on the standards before we 12 even get started. It helps us get moving, it has the 13 possibility of allowing us to start doing something more 14 concrete next year. 15 We continue -- the USBR continues to take a lion's 16 share of the burden in meeting the standards, but we do get 17 help. And part of it is that the way the agreement is 18 structured, it structures conflict resolution. It 19 anticipates -- we know that there is going to be conflict, 20 but it sets it up so that there is discussion among 21 scientists. And, then, if there's not an agreement there 22 it goes to policy. And then at that point if something 23 else may happen, it may go to termination, all sorts of 24 things may happen. 25 But it will provide and sets up mechanisms for CAPITOL REPORTERS (916) 923-5447 828 1 there to be conflict resolution before we have to go to 2 court. Because what we found even in the last few years in 3 our working together, we do a lot more and are a lot more 4 effective when there's discussion among scientists rather 5 than disputes among lawyers. 6 The Plan -- the San Joaquin River Agreement is 7 also going to make it more likely that we're going to be 8 able to comply with the plan even in dry years. And you 9 heard today complaints about, you know, this is just 10 setting us so we can continue to violate the plan. And 11 it's all a plot to help us violate the plan. If anything, 12 we see it as allowing us and giving us the opportunity to 13 get a broader base of a key period in the plan, a key flow 14 period during the pulse period in that spring period, get a 15 broader base of sources so we're not just dependent on New 16 Melones as we have been for many years. 17 So those are not the only places that we can get 18 water. We're drawing from a much broader base. We're 19 acknowledging some very senior rights. And we acknowledge 20 that we're getting access, or I should say the river and 21 the Delta is getting access to water that has -- is based 22 on various senior rights. So it is going to help us to 23 make sure that we can comply with the plan. We can't 24 guarantee it. I have to say, we can't guarantee this. We 25 can't guarantee anything, absolutely, because the hydrology CAPITOL REPORTERS (916) 923-5447 829 1 changes, the situation of the fishery change, everything is 2 in a manner of change. But this agreement provides for 3 that change, provides for things to change, for your Board 4 to make different decisions and for us to resolve and work 5 out, "How do we respond to that?" It provides for those 6 kinds of changes. 7 And we take risks and so do the other parties. 8 All the parties are taking risks. We're taking risks with 9 some funding that we may be spending money and, yet, there 10 may be years where the other parties do not have to provide 11 water because there's plenty of water there. And we are 12 still going to be contributing. We're still going to be 13 making the payment. But they're taking a risk that we're 14 going to -- that the last few -- next few years are not 15 going to be what the last few years were. That the next 16 few years may be much dryer and they'll be contributing a 17 significant amount of water. So they're taking a risk as 18 well. 19 So it's a balance. I mean this is all about 20 settlement. This all about trying to work things out so 21 that there is some balancing of interest. I mean, 22 Mr. Chairman, you mentioned that I was wearing two hats. I 23 really don't -- we really don't see it as wearing two hats. 24 We are the Department of Interior and our challenge is 25 constantly to balance. We have two agencies with two very CAPITOL REPORTERS (916) 923-5447 830 1 different missions and we admit that. 2 But we are trying constantly to meet those 3 concerns and balance those. We are trying to balance it at 4 New Melones with what we do, our demand from contractors, 5 or demands from fishery, all those things we're constantly 6 trying to balance. And so we see the San Joaquin River 7 Agreement as another effort of trying to make that balance 8 and work with the other parties and create a way to get 9 beyond the conflicts that we all have experienced for many 10 years in the past. 11 And for the most part this settlement agreement 12 meets the settlements principles that I think we outlined 13 in our -- the April 21st workshop. It doesn't meet them 14 perfectly, doesn't actually meet every one to the last 15 detail, but that's the nature of a settlement agreement. 16 It's a way to resolve conflict. And this one sets up a way 17 for us to anticipate conflict and it helps us set up a 18 process to be able resolve that conflict in years to come. 19 We'll see what happens and we'll do the best we 20 can. And you'll hear today from our biologists and you'll 21 hear from our Chief of our operations for the Central 22 Valley Project how this works and how this is a balance and 23 why this may not be perfect, but it's the best thing that 24 we've got and the best thing that will make things happen 25 now, next year. It's not perfect, but its the best way CAPITOL REPORTERS (916) 923-5447 831 1 that we can go. 2 C.O. CAFFREY: All right. Thank you, Mr. Brandt. We 3 will now take a -- excuse me, Mr. Campbell, we're going to 4 take a break -- 5 MR. CAMPBELL: Thanks. 6 C.O. CAFFREY: -- with great anticipate to your 7 statement. We'll take a 12-minute break and be back here 8 at 10:30 by the clock on the wall. Thank you. 9 (Recess taken from 10:18 a.m. to 10:30 a.m.) 10 C.O. CAFFREY: Let's find our seats and we will 11 resume. We are back on the record. Good morning, again, 12 Mr. Campbell. 13 MR. CAMPBELL: Good morning. 14 C.O. CAFFREY: Sorry about that interruption before. 15 ---oOo--- 16 OPENING STATEMENT ON BEHALF OF THE 17 SAN JOAQUIN RIVER AUTHORITY 18 BY THE CALIFORNIA DEPARTMENT OF FISH AND GAME 19 BY MATTHEW R. CAMPBELL 20 MR. CAMPBELL: Good morning, Mr. Chairman and Members 21 of the Board, and Board staff. Again, my name is Matthew 22 Campbell. I'm with the Attorney General's Office. I'm 23 here today representing the Department of Fish and Game. 24 I'd like to provide a very brief opening statement on 25 behalf of the Department of Fish and Game. CAPITOL REPORTERS (916) 923-5447 832 1 The Department has signed the letter of support 2 for -- of the San Joaquin River Agreement and its Vernalis 3 Adaptive Management Plan components. In continuation of 4 that support, the Department is providing Senior Biologist 5 Bill Loudermilk as a witness on biological issues as a part 6 of the group of biologist witnesses that will be presented 7 on behalf of the supporters of the San Joaquin River 8 Agreement. 9 As the Department's written testimony indicates, 10 the Department has some continuing concerns regarding the 11 implementation of the San Joaquin River Agreement, but as 12 Mr. Brandt alluded to in his opening statement, the 13 Department believes that the agreement includes sufficient 14 mechanisms for dealing with those concerns. And the 15 Department, in the first instance, would like to utilize 16 those mechanisms through the agreement to address the 17 concerns that it has expressed in its testimony. Thank 18 you. 19 C.O. CAFFREY: All right. Thank you very much, 20 Mr. Campbell. Mr. Robbins. Good morning, again, sir. 21 OPENING STATEMENT BY THE SAN JOAQUIN RIVER GROUP 22 BY MERCED IRRIGATION DISTRICT 23 BY KENNETH ROBBINS 24 MR. ROBBINS: Good morning, Mr. Chairman, Members of 25 the Board. Thank you for this opportunity. My name is CAPITOL REPORTERS (916) 923-5447 833 1 Kenneth Robbins, I represent the Merced Irrigation 2 District. I'm also co-counsel for the River Group 3 Authority. This morning, however, our presentation of the 4 San Joaquin River Agreement is on behalf of all of the 5 parties signatory thereto. 6 I think it's important first of all to do a couple 7 of housekeeping matters. Allusion has been made earlier 8 this morning to requests to know where this water is coming 9 from. And I would just invite the participants attention 10 to the River Group Exhibit Number 19, which is the division 11 agreement which we will go into later that describes who's 12 providing water and how. 13 My goal this morning is to try to describe for you 14 the actual contents of the River Agreement very briefly and 15 to indicate how we will be providing testimony relative to 16 that agreement. We've had an opportunity to discuss that 17 with you briefly at the workshop on the 21st of April. But 18 I think it bears some repeating and some new information in 19 that regard. 20 So I will try to keep our address this morning to 21 the points reserved for this Phase II, and although, the 22 printed material we've given you earlier involves our 23 opening relative to the entire phase, much of that is 24 relevant to Phase II-A, if we go there. So we'll try to 25 stay focused on the issue of whether the San Joaquin River CAPITOL REPORTERS (916) 923-5447 834 1 Agreement provides a protection equivalent to that set out 2 in the 1995 Water Quality Control Plan. 3 Let me first describe who the parties are to this. 4 This is a historic agreement for several reasons. And I 5 think that a scan of this list is explanation enough. As 6 Mr. Rogers has indicated these are parties who have 7 regularly spoken to each other historically through 8 counsel. We are now speaking regularly through policy 9 folks who are making affirmative decisions to compromised 10 positions historically held in order to get the job done. 11 Earlier in these proceedings I indicated to you 12 that we came together not to describe who was causing the 13 problems of the Delta, and not to rest upon whose rights 14 were senior, although, I can assure you we had plenty of 15 those discussions. The solution to this problem, however, 16 that we are proposing is a consensus solution based upon a 17 set of circumstances we believe can actually work as 18 opposed to trying to figure out who's at fault and trying 19 to figure out who doesn't have to participate based upon 20 seniority. 21 Certainly, we do subscribe to the seniority system 22 in California, at least, those of us on the River Group 23 Authority, but we believe that this agreement provides the 24 last best opportunity for settling this matter and actually 25 doing something positive. CAPITOL REPORTERS (916) 923-5447 835 1 Turning to the actual agreement itself, as I've 2 indicated, there are the goals set out in the agreement 3 itself. Section 2.5 actually establishes those goals. The 4 first is to ensure that the San Joaquin River Agreement, 5 through the accomplishment of the VAMP, which is the study 6 portion of the agreement which is attached as Exhibit A, in 7 conjunction with other non-VAMP activities contributes to 8 the goal of achieving a doubling of natural salmon 9 production in the San Joaquin River. We understand that 10 can't be guaranteed, because we're not in control of all 11 the variables in the Delta, but we believe the agreement 12 when combined with other actions being taken will, in fact, 13 contribute to that action. 14 The second goal is to obtain additional scientific 15 information. We've heard for generations now that we don't 16 know enough about the Delta to make informed decisions. 17 And, in fact, I think we all agree that's true. We are 18 forced to make decisions, however, even though that 19 information is scarce. We believe that the study and 20 monitoring plan proposed in the agreement over the next 12 21 years, that is to say the life of the agreement, will 22 result in us obtaining the appropriate information 23 necessary to make the permanent long-term solution possible 24 on the San Joaquin side of the Delta. 25 And, finally, the goal set forth in 2.5.3 is the CAPITOL REPORTERS (916) 923-5447 836 1 tenure of the agreement to provide environmental benefits 2 in the lower San Joaquin and in the South Delta that are 3 equivalent in protection to those standards adopted by this 4 Board in its Water Quality Control Plan. 5 The agreement is essentially based upon six 6 different premises. Those premises are found throughout 7 the agreement, specifically, the Old River barrier is -- is 8 the first of these and has been discussed before this 9 Board. Essentially for us it means that the barrier will 10 be put into place. We hope that will be a permanent 11 barrier that's operable so that it can take advantage of 12 years in which high flows occur and we might not be able to 13 get temporary barriers in. 14 We also believe that if its an operable barrier, 15 that years in which the closure of the barrier can cause 16 flooding, the thing can simply be opened and relieve that 17 sort of pressure. It can also be used during other times 18 of the year. Now, we're not necessarily advocating that 19 here, but the point of an operable barrier is it would be 20 much more flexible than a rock barrier. Now, we know that 21 the installation of the permanent barrier likely will lead 22 to the requirement for additional barriers for water 23 quality and fishery requirements. And to the extent they 24 are required, we support them, but that's being conducted 25 in a separate proceeding from this. CAPITOL REPORTERS (916) 923-5447 837 1 The second major point of the agreement indicates 2 a relationship study between flow and export. And as a 3 result the parties have agreed to supply additional water 4 and to reduce exports during the April/May pulse-flow 5 period for the outmigration of San Joaquin fall-run chinook 6 salmon. And I'll address that in a moment. 7 We've also assumed certain operations at New 8 Melones. Every one of your alternatives assumes the New 9 Melones operations and our proposal of the agreement is no 10 different. We do want to make a point to the Board, and 11 when we come to that point we will certainly be indicating 12 to the Board, we have no intention, neither do we believe 13 we have the authority, nor frankly do we think it's a wise 14 idea to dictate how New Melones will operate. But we had 15 to make some assumptions about how its operations would be 16 conducted in order to bracket both the risk and the 17 responsibility for others on the San Joaquin in 18 contributing to the agreement. 19 Payment is one of the elements. We will not be 20 discussing that in this proceeding. That really relates 21 more to implementation. Should we go to Phase II-A, I 22 believe it's more appropriate to discuss that there. But, 23 frankly, the agreement does provide for payment from both 24 the Bureau and DWR to the River Group Authority supplying 25 the water to make it available. And those payments are CAPITOL REPORTERS (916) 923-5447 838 1 dedicated to be used, at least in large part, on projects 2 that will allow us to make this water available. 3 Another premise upon which the agreement is based 4 is a study to be conducted. That is Exhibit A. That's 5 what we referred to as the Vernalis Adaptive Management 6 Plan, or the VAMP, and the monitoring that takes place 7 within that pursuant to the supervision of the technical 8 committee. And we'll be discussing that as well. 9 Assurances and dispute resolutions are set forth in the 10 agreement. There are all sorts of opportunities to resolve 11 disputes including a meet and confer, including mediation, 12 and, in fact, referral to this Board for assistance, or 13 resolution should that be required. 14 Again, we believe that that sixth issue is 15 probably more relevant to II-A in terms of implementation 16 than to a determination of equivalency. And we'll be 17 paying more attention to that in the next phase, II-A, 18 should we go there again. 19 Now, turning to the flow export issues, the San 20 Joaquin River Agreement calls for the San Joaquin River 21 Group Authority to supply water over and above existing 22 flow in such amounts that are necessary to make target 23 flows happen with a couple of exceptions, which I'll 24 describe. 25 First of all, let me describe that existing flows CAPITOL REPORTERS (916) 923-5447 839 1 are defined in the instrument but, essentially, that's what 2 would be there in the absence of the River Agreement. It 3 includes FERC releases, David Brunski (phonetic) releases, 4 any other regulatory requirements, flood control releases 5 that are required to be released during the period 6 April/May because of current operating requirements of the 7 Corps of Engineers on these various projects. So it's 8 essentially what would be at Vernalis. 9 The River Group Authority is committed to 10 increasing those existing flows in order to meet target 11 flows. By way of example, the technical committee will 12 meet earlier in the year and use their best knowledge in 13 terms of the forecast that's been present, which will be 14 updated from time to time to determine what the existing 15 flows are. And, in fact, we should be able to monitor that 16 in realtime. 17 Once those existing flows are in place, as an 18 example, let us say that the flows existing are 2100 csf, 19 that means it falls within the second bracket and the River 20 Group Authority would be required to increase those flows 21 by releases to the various systems to 3,200 csf. That's 22 what we refer to as "the single step." 23 In a like fashion, if those flows were at 4,450, 24 we would be required to increase them to 5700. There is a 25 cap on that requirement of 110,000 acre feet per year, CAPITOL REPORTERS (916) 923-5447 840 1 because as I think we'll show in some of the examples we'll 2 use, some of these water costs can get to be astronomical. 3 So that the regulatory cap we're proposing in the agreement 4 is 110,000 acre feet cumulative to the parties in any given 5 year. 6 Now, how does all of this work? Well, as I 7 indicated to you we have provided for a couple of 8 exceptions both going down in terms of being released in 9 critical periods and in going up in terms of contributing 10 additional water in years in which more water is available. 11 So what we've done is adopted the 60/20/20 San Joaquin 12 basin year group classification as you set out in the Water 13 Quality Control Plan. 14 And we've given each of those years a numeric 15 indicator. Wet year is five. Critically dry is one. And 16 each of those others falls in between. And as we use 17 examples you will see why those numeric indicators are 18 important. The first off-ramp for the requirement to 19 supply water is essentially this -- I'm going to use an 20 example. Art, if you could put that last slide up for just 21 a moment. 22 Let us say that the existing flow is 1500 csf and 23 it is a critically dry year. Historically that would, 24 essentially, be the critically dry year. Let us also 25 say -- that -- that would mean that the current year would CAPITOL REPORTERS (916) 923-5447 841 1 have an indicator of one, if you recall the prior chart. 2 Let us also indicate, however, that the prior two years 3 were, in fact, wet or above normal, meaning that those 4 indicators would put the total above four. So long as the 5 total of those year indicators for the current year and the 6 prior two years is above four, the River Group Authority is 7 required to meet those target flows by releases of water. 8 And, indeed, even in a critical year if the flows were 9 2,000, we would be required to raise it to 3200. 10 However, let us also assume that the current year 11 is a critically dry year and that each of the past two 12 years is critically dry, or at least one of those was dry 13 and one critically dry so that the combination of those 14 numeric indicators was four or less, no additional water 15 would be required except that the agreement calls for the 16 Bureau of Reclamation to use its best efforts, and the 17 River Group Authority pledges to use its best efforts as 18 well, to provide additional water from willing buyers and 19 willing sellers in order to meet the target flows. 20 In a like fashion, in years in which the current 21 year indicator and the immediately preceding year indicator 22 is equal to seven or more, the River Group Authority is 23 required to use what we refer to as the "double step." 24 What that essentially means, just by way of an example, 25 this year happens to be five. And we know last year CAPITOL REPORTERS (916) 923-5447 842 1 happens to be five, what that essentially means is that 2 this year we would have to have made a double step. 3 Now, that didn't happen, because the flows were 4 naturally greater than 7,000. Let me use a different 5 example. Suppose that last year were, in fact, wet, i.e., 6 five; and this year we're dry, meaning the two, the 7 combination of those two-year indicators is equal to seven. 8 And, therefore, the River Group Authority would be put to a 9 double step. That essentially means that if the flows in 10 the river were at 3200, the single step would take us to 11 4450 in terms of csf, but instead of stopping there we are 12 required to pass through that to the next target flow which 13 is 5700. So that's how the off-ramp occurs relative the 14 sequential dry years, it takes three of those. And that's 15 how the on-ramp occurs relative to the sequential wet year 16 and it only takes two of those. 17 In addition to all of that there is a third way 18 that the flows can be modified. Because in addition to all 19 of the water that's being pledged for the pulse-flow 20 period, the -- those flows can be modified by additional 21 purchases by the Bureau of Reclamation. And every year the 22 agreement calls for those supplying water and those -- I'm 23 slowing down, because I'm getting the look from the 24 Reporter -- and those that are responsible to meet the 25 standards to meet and confer by March 1st of every year to CAPITOL REPORTERS (916) 923-5447 843 1 attempt to obtain notice of water that might be available 2 from willing buyers and willing sellers. 3 Indeed, the Bureau has been made the preferred 4 buyer given the opportunity to buy that water before others 5 can purchase it during the pulse-flow period, at least, as 6 long as it's being delivered through the river system. 7 Now, obviously, the agencies can sell water to their own 8 customers and perform the appropriate contracts that are 9 already in place. But to the extent there are transfers 10 that can be made or willing sellers of water in those areas 11 that the parties identify that the Bureau is given the 12 opportunity to purchase that water to increase the flows 13 even further. 14 Now there are two other factors that are affecting 15 flows that the River Group has pledged. Merced Irrigation 16 District has separately pledged the sum of 12,500 acre feet 17 of water for use in the month of October. And you'll see 18 some hydrology later about what that does to your 19 requirements for October. Provided that the Bureau, the 20 Fish and Game, and MID, all agree that water is even 21 available for use in other times of the year, though it's 22 primarily designated for the month of October. 23 In addition to that, Oakdale Irrigation District 24 has pledged two increments of water. The first is -- you 25 will notice when you see the division agreement, as I'm CAPITOL REPORTERS (916) 923-5447 844 1 sure you probably already looked at that, that there is a 2 sequential requirement for the various districts supplying 3 water to make that water available. 4 But there are years in which not every part of 5 every agency's requirement is used. In order to make the 6 flows happen pursuant to either the double or single step, 7 of course, the use of the division agreement is implemented 8 and there's some years in which you simply do not need all 9 of that to make the target flows occur. Oakdale has agreed 10 to make that water available by purchase through the Bureau 11 for other uses. And in addition to that they've agreed to 12 make 15,000 acre feet of water available to the Bureau in 13 all years as well. 14 So we believe that the additional water being 15 supplied pursuant to the agreement when combined with 16 export restrictions will meet, or will be equivalent to the 17 protections you've set in the Water Quality Control Plan. 18 And you'll hear testimony about that. 19 But what are those export restrictions? Those 20 appear in the graphic, essentially, 6.4 of the agreement. 21 And that, essentially, indicates what the target flows are 22 across the top, and on the left-hand side what the exports 23 will be. Now, this will be adaptive, if you will, the 24 technical committee will be looking at this every year as 25 they will flows trying to determine what kind of year this CAPITOL REPORTERS (916) 923-5447 845 1 is and how the study will be undertaken. Each one of these 2 represent what we hope to be the data point relative to the 3 study. And you will notice, for instance, that when the 4 flows are at the 2,000 csf level, that is to say the 5 minimum-target level, exports are restricted to 1500. This 6 is different. This is less than what you've indicated in 7 your Water Quality Control Plan. 8 And you'll, also, notice that that's a huge impact 9 when you get into the higher flow years, because the 10 restriction stays at 1500 until you get to 5700 flows at 11 Vernalis and it moves to 2250, still significantly below 12 what is otherwise required. You'll also notice that there 13 are two targets flows at 7,000. We hope to obtain data 14 points at both of those levels. 15 That is, essentially, the flow side, if you will, 16 of the agreement and why we believe that equivalency will 17 be achieved. In addition to these issues, however, the 18 river -- or the agreement contemplates that a significant 19 study of the Delta relative to exports and flow as they 20 relate to the Old River barrier will be conducted over the 21 12 years of the agreement. And the agreement calls for it 22 to be self-funding. 23 The federal and state parties have agreed to pay 24 for half of the monitoring costs. The other parties 25 combined have agreed -- with the exception of the CAPITOL REPORTERS (916) 923-5447 846 1 environmental parties who have no requirement to pay, have 2 agreed to pay the other half. And, frankly, those other 3 agencies have each agreed to split that so that the River 4 Group Authority and San Francisco will pay what amounts to 5 a quarter; and the export interests will pay what amounts 6 to a quarter. 7 We also agree that since many of our biologists 8 and much of our equipment can be used and, in fact, will be 9 used in this process, that whatever any party provides in 10 kind will be essentially credited to their expenses. So we 11 believe that the River Group -- or the river agreement not 12 only addresses the issues of equivalency, but it also 13 addresses the issues of how we gather the additional 14 science we're going to need for the long-term. 15 Finally, just by way of clarification, let me just 16 indicate that the processes that are established by the 17 agreement I think are just as important. There is a 18 technical committee that is established and we hope they 19 will be technical people. There will be a lot of folks at 20 that agreement -- or at that committee, because everybody 21 that's a signatory party has a right to send a biologist, 22 hydrologist, or whatever to that session. And that is the 23 group that will, essentially, undertake most of the 24 implementation of the study and of the flow regimes. 25 But should it be necessary to decide those CAPITOL REPORTERS (916) 923-5447 847 1 disagreements that might occur at the technical committee, 2 which decisions must be unanimous by the way, the 3 management committee will take up those issues in 4 conducting its other business. If the management 5 agreement -- or if the management committee is not able to 6 unanimously resolve those issues, there are several 7 methodologies for dispute resolution. 8 There are meet and confer issues. There are 9 references to the State Board for mediation. There's 10 outside mediation prior to any termination. And, frankly, 11 any party wishing to terminate the agreement is required to 12 pay 50 percent of the mediation costs over the period that 13 it takes to investigate the disagreement and -- with the 14 exception of the environmental parties, again, who are only 15 limited to $2,000 relative to that. 16 So we feel fairly comfortable that the centrifugal 17 force, as it were, the political pressure as well as the 18 economic and loss supply impacts of any party attempting to 19 pull out of the agreement will be sufficient to hold the 20 agreement together. But in the event that that isn't in 21 fact the case, the agreement calls for a period of two 22 years for the Bureau to meet the flow requirements on the 23 San Joaquin; and the Bureau and the Department to meet 24 outflow requirements that would otherwise be attributable 25 to the San Joaquin for that two-year period time. CAPITOL REPORTERS (916) 923-5447 848 1 And that the matter gets immediately referred to 2 the State Board to, in fact, conduct the adversarial water 3 rights hearing that we're hoping to avoid by virtue of this 4 agreement. We think that the Board has everything to gain 5 and, essentially, nothing to lose by adopting the agreement 6 as its alternative. But, again, that will be an issue for 7 II-A. 8 There are other conditions. For instance, the 9 Board must find equivalency protection. The Board must 10 also issue an order protecting the water being released by 11 the parties under 1707. Obviously, it wouldn't do us much 12 good to release it from our various projects if it could be 13 diverted under other water rights applications before it 14 gets to Vernalis, as an example. But we'll take up those 15 issues, I think, in Phase II as we demonstrate how 16 implementable the San Joaquin River Agreement is. 17 I think that probably concludes what we need to do 18 this morning. We are prepared to proceed I believe with 19 our biologists this morning, unless you have any questions 20 at the outset concerning the agreement. 21 C.O. CAFFREY: All right. Thank you very much, 22 Mr. Robbins. I believe if any of our Board Members have 23 any questions we'll wait until the cross-examination phase, 24 or any other time we need to clarify. Thank you. 25 MR. ROBBINS: I would yield the floor at this point CAPITOL REPORTERS (916) 923-5447 849 1 to Mr. O'Laughlin to begin the examination, if you like. 2 C.O. CAFFREY: All right. While Mr. O'Laughlin is 3 coming up to present the first witness, or witnesses, let 4 me ask the entire audience if I can have your attention. 5 Is there anybody here today who wishes to testify 6 in Phase II who has not taken the oath or affirmation, 7 anybody here in that anticipation? Please rise. Raise 8 your right hand. You promise to tell the truth in these 9 proceedings? 10 THE AUDIENCE: I do. 11 C.O. CAFFREY: Thank you very much. Please, be 12 seated. Mr. O'Laughlin, sir. 13 MR. O'LAUGHLIN: Thank you. Go ahead you can sit 14 right down here. 15 MR. O'LAUGHLIN: I'd like to take care of one 16 housekeeping issue if I could before we proceed forward. 17 San Joaquin River Group Authority Exhibit 1 is the 18 statement of qualifications of Mr. Short; San Joaquin River 19 Group Authority Number 2 is a letter of support for the San 20 Joaquin River Agreement and the San Joaquin River Agreement 21 itself. 22 As I stated earlier, Mr. Short is out of the state 23 and will not be back until late tomorrow. I would like to 24 make an offer of proof, if possible, to the State Water 25 Resources Control Board, and if no party objects, that the CAPITOL REPORTERS (916) 923-5447 850 1 San Joaquin River Group Authority 1 are true and correct 2 copies of the statement of qualifications of Mr. Short. 3 And that San Joaquin River Group Authority Number 2 is a 4 true and correct copy of the letter of support for the San 5 Joaquin River Agreement and the San Joaquin River Agreement 6 itself. And if no objections are heard, I'd like to enter 7 both of those into evidence. 8 C.O. CAFFREY: We actually don't rule on acceptance 9 of the evidence until after the presentation of the case, 10 but is there any objection to that identification and 11 submittal of the evidence? There is none, so proceed. 12 ---oOo--- 13 DIRECT TESTIMONY OF SAN JOAQUIN RIVER GROUP 14 OF DR. EMIL MORHARDT 15 BY TIM O'LAUGHLIN 16 MR. O'LAUGHLIN: Thank you, Mr. Chairman. Presenting 17 to the State Water Resources Control Board Dr. Emil 18 Morhardt. That's M-O-R-E-H-A-R-D-T. 19 Mr. Morhardt, have you submitted a true and 20 correct copy of your resume as San Joaquin River Group 21 Authority Exhibit Number 3? 22 DR. MORHARDT: Yes, I have. 23 MR. O'LAUGHLIN: And, also, have you submitted to the 24 State Water Resources Control Board a true and correct copy 25 of your -- testimony of both you, Dr. Peter Baker and Frank CAPITOL REPORTERS (916) 923-5447 851 1 Ligon as San Joaquin River Group Authority Exhibit Number 2 6? 3 DR. MORHARDT: Yes. 4 MR. O'LAUGHLIN: I notice on San Joaquin River Group 5 Authority Number 6 that your signature was not on that 6 document. Can you explain why your signature was not on 7 that document? 8 DR. MORHARDT: The document is a work product that 9 Dr. Baker and I have been working on for a number of years 10 together, but at the time it was submitted I was 11 unavailable. I was working in Southern California and I 12 was working on the east side of the Sierra doing fishery 13 research in the field and so I simply wasn't able to submit 14 it. 15 MR. O'LAUGHLIN: Thank you. Could you briefly 16 summarize for the Board and the parties your testimony that 17 you have presented in a written fashion as San Joaquin 18 River Group Authority Exhibit Number 6. 19 DR. MORHARDT: Yes. Good morning, Mr. Caffrey and 20 Members of the Board. 21 C.O. CAFFREY: Good morning, sir. Welcome. 22 DR. MORHARDT: What I'd like to talk about today are 23 the technical reasons for issues surrounding the 24 uncertainties associated with salmon with our knowledge of 25 salmon smolt survival as salmon pass down the San Joaquin CAPITOL REPORTERS (916) 923-5447 852 1 Delta and also the need for the demonstration of the 2 biological affects of a barrier at the head of Old River. 3 I'd like to begin by identifying some of the 4 locations that I'm going to be speaking of on the map. I 5 borrowed this map from Ms. Brandes, and she'll be using it 6 in her testimony as well as. 7 MS. WHITNEY: Can you identify what exhibit number 8 this is? 9 C.O. CAFFREY: Yes. 10 MR. O'LAUGHLIN: That is -- it's exhibit -- it's 11 Exhibit DOI 1-B. 12 C.O. CAFFREY: Thank you. 13 DR. MORHARDT: Thank you. This is a map of the San 14 Joaquin Delta. The positions that I'm going to be speaking 15 of are those at the head of the Delta near Vernalis, which 16 is not on the map, but which is just upstream from Mossdale 17 as identified. The studies that I'm going to be speaking 18 of are studies in which salmon smolts are marked with 19 coded-wire tags, which are small pieces of wire inserted in 20 the nasal cartilage that can be subsequently read to 21 identify which group of fish they were members of. 22 These fish are released at Mossdale, or at 23 approximately the barrier location a little downstream of 24 that at the head of the Old River or at Dos Reis in the San 25 Joaquin River. They then pass through the Delta in some CAPITOL REPORTERS (916) 923-5447 853 1 fashion, through that maze of channels that you can see 2 there. And are, subsequently, some of them recaptured at 3 the end of the Delta at Chipps Islands. So all of the data 4 that I'm going to represent represent the release groups of 5 smolts which were taken from hatcheries, marked with 6 coded-wire tags, released in large numbers near the flow 7 split at Mossdale, or Dos Reis or stored ground on Old 8 River. And then after a while, ten days on average, 9 recaptured at Chipps Island. 10 And based on the number that were recaptured some 11 estimate can be made of the survival of the smolts as they 12 go through the Delta. These are only the direct 13 experiments which address the question of what influence it 14 has on the survival of the smolts as they pass through the 15 Delta. The actual data are embodied in this slide. This 16 is data collected by the Fish and Wildlife Service. And 17 they represent all the experiments that have been 18 undertaken. 19 C.O. CAFFREY: Is that also an exhibit? 20 DR. MORHARDT: Yes. This is Exhibit Figure 3.1.4 of 21 our testimony. 22 C.O. CAFFREY: Thank you, sir. 23 DR. MORHARDT: On the vertical axis is the Fish and 24 Wildlife Service smolt survival index. An indication of 25 the, in effect, percentage of the smolts that were released CAPITOL REPORTERS (916) 923-5447 854 1 that survived. Along the horizontal axis is the flow in 2 the San Joaquin River above the Delta at Vernalis. 3 So, in effect, this is a diagram illustrating the 4 survival as it relates to flow in the San Joaquin River at 5 Vernalis at the time the smolts were released. Notice that 6 there is a regression line, a linear-regression line fitted 7 to these data. It's possible to fit a linear-regression to 8 these data, it's just barely significant. 9 If, in fact, there is really a clear tight 10 relationship between survival of the smolts through the 11 Delta and flow, all of those data points would be very near 12 the line. In fact, the data points are scattered all 13 around the line, very few of them are near the line. So, 14 in fact, it's a very uncertain relationship even though it 15 is, in fact, just barely significant. 16 Another point to notice is that with the exception 17 of that one data point at about 26,000 csf, you'll notice 18 you can get just as high survivals at 3,000 csf as you get 19 at around 23,000 csf. Likewise, you can get very low 20 survival clear down to 10,000 csf. And, in fact, not so 21 good survival nearly at 25,000 csf. So there's a wide 22 variation. And its my belief that to decide to alter the 23 survival of smolts by manipulating flow based on these data 24 is a very uncertain proposition. 25 Now, if you consider only that range of flows up CAPITOL REPORTERS (916) 923-5447 855 1 to about 10,000 csf, notice that if you don't consider the 2 flows past 18,000 csf, in which these experiments have been 3 done, only flows below 18,000 csf it does not look like 4 that line will hold. We produced a graph, the one you're 5 about to see now, which is Exhibit 3.1.7 of our written 6 testimony. This shows a subset of that data just to 10,000 7 csf. And we fitted a line to that and it's quite 8 insignificant statistically, but you can see that the 9 trend, in fact, is downward, a decreased survival with 10 respect to flow rather than an increased one. That's not a 11 real trend. There's no trend here at all. 12 It would even be worse though if they included 13 that one data point above 10,000 csf. There's a big data 14 gap between about 10 -- between about 12,000 and 20,000 15 csf. But in any case, it's my belief that these data don't 16 support the idea that there is any strong relationship at 17 all between river flow at Vernalis and smolt survival. 18 Now, why wouldn't there be? It seems to me to 19 make perfect sense that the higher the flows coming into 20 the Delta the more rapidly they would push the smolts 21 through the Delta, and the more rapidly they'd get past 22 whatever problems lie in the Delta and they would get out 23 to sea. There could be two reasons. 24 One is that there may, in fact, be no relationship 25 at all between salmon smolt survival and that is possible CAPITOL REPORTERS (916) 923-5447 856 1 to envision, because there are large tidal fluxes that 2 occur twice a day that divert the amount of flow coming 3 into the Delta so that these fish, once they hit the Delta 4 may simply ignore the flows incoming and do something with 5 respect to the tidal flows and find their way out on their 6 own. 7 The other possibility, however, which still exists 8 is that all of that scatter is really there because the 9 experiments weren't done as well as they could have been. 10 They weren't as carefully controlled as they might have 11 been. There's a lot of variables which it's very difficult 12 to control for. And these include water temperature, there 13 probably is a large difference in survival depending on 14 water temperature. 15 The experiments were done over a wide range of 16 water temperatures. There are also differential 17 temperatures -- I'll try to speak more slowly. There are 18 also differential temperatures between the hatcheries from 19 which the smolts came from and the water temperature in the 20 Delta. And this might have an adverse, or possibly a 21 beneficial affect on the survival. Also, the smolts in 22 these studies are of widely different sizes. And it can be 23 expected that larger smolts would do better and, yet, those 24 aren't explained by these -- those weren't controlled very 25 well in these experiments. CAPITOL REPORTERS (916) 923-5447 857 1 And, finally, these smolts come from a variety of 2 hatcheries. And it's certainly possible that smolt coming 3 from the Feather River might not do as well or might do 4 better than smolt coming from the Merced River hatchery. 5 And those haven't been controlled. 6 For that reason, experiments of the sort that are 7 envisioned and designed to the VAMP ought to do a lot to 8 help control these variables, in fact, will do a lot to 9 help control them. And we ought to at the end of VAMP have 10 a much clearer understanding of whether that scatter is 11 there because there's no relationship between flow and 12 survival, or it's there because there's just uncontrolled 13 variables in the experiments. 14 We do have one piece of information though that 15 suggests that the fish are operating independent of 16 incoming flows. An example of that is described on our 17 Exhibit 3.2.1. And this looks highly complicated, I think 18 I can explain briefly. As just an example, the rate at 19 which smolts get out relative to the rate at which water 20 gets out of the Delta, this sigmoidal solid line over on 21 the left is a -- is a diagram of the rate of which smolts 22 on one occasion got out of the Delta. 23 On average they get out about ten days after 24 they're released. They get from the release point at 25 Mossdale to the pick-up point at Chipps Island on the CAPITOL REPORTERS (916) 923-5447 858 1 average of about ten days. And that's true for all smolt 2 releases, or almost all of them. On this particular date 3 there was also a computer experiment, computer modeling 4 stimulation experiment done in which neutrally buoyant 5 tracing particles were introduced at the same point smolts 6 were introduced. And then they were tracked based on 7 hydrological modeling throughout the system. And they're 8 shown in blue on the line on the right. And none of them 9 showed up until ten days after any of the smolts showed up 10 at Chipps Island. 11 And also there is a matter of magnitude. The two 12 axes are quite different. A very small percentage of the 13 tracers never show up. It appears that the smolts swim 14 through the Delta much faster than the velocities of the 15 water going through the Delta through some mechanism that 16 isn't fully understood at this time. But we do have some 17 certainty with respect to one aspect of smolt survival. 18 And that is that we know that the smolts that go down the 19 San Joaquin River do far better than the smolts that go 20 down Old River. 21 Again, this is a complicated diagram, but if you 22 look over on the right-hand side it says, "Combined data," 23 that's the data combined for the six experiments shown on 24 the left in Figure 3.3.1 of the written testimony. There's 25 a 2X on that point and what that shows is that these CAPITOL REPORTERS (916) 923-5447 859 1 experiments in which smolts were released both at the head 2 of Old River and in the San Joaquin River, simultaneously, 3 it shows that the survival of smolts going down the San 4 Joaquin River was twice as good as that of smolts going 5 down Old River. 6 So the data on smolt survival that we have 7 suggests that it would be a really good idea to get the 8 smolts to go down the San Joaquin River rather than Old 9 River. That's why we think that the VAMP studies, 10 incorporating studies, that will go a long way to making 11 this clearer. 12 Finally, -- did you have a question? 13 C.O. CAFFREY: Ms. Forster? 14 MEMBER FORSTER: Can you explain that chart a little 15 bit better? I mean, I know what the title says, but are 16 the long lines the San Joaquin and the short the Old? 17 MR. MORHARDT: I barely explained it at all, but I 18 will try to. This is the differential survival between the 19 San Joaquin and the Old River. And the vertical axis is 20 just the differential survival. So where it says "2X," 21 that means it's twice as good in the San Joaquin River. 22 Where it says "10X," that means it would be 10 times as 23 good. 24 The actual data points for the six experiments are 25 shown in the left. And the solid diamonds right in the CAPITOL REPORTERS (916) 923-5447 860 1 middle of those long lines are the values of the results of 2 the experiments. So you can see that in the first 3 experiment it was slightly less than twice as good. And 4 the second experiment it was almost three times as good in 5 the San Joaquin River. In the third, it was almost the 6 same on both pathways. 7 The vertical lines surrounding the solid diamonds 8 are error bars. They show the confluence that we had in 9 the result. The error bars are -- excuse me, so we can 10 see, for example, that in the first experiment the error 11 bars are very short, that means the experiment was very 12 decisive and there was clearly just about twice as much 13 survival. 14 And the second -- let me go into the third 15 experiment, where the actual value of the experiment was 16 just about same in both rivers. The error bars encompass 17 both two times as good and one times as good. So within 18 that range the result is uncertain. 19 When you combined all of the experiments you can 20 get a smaller set of confidence in the rules and it shows 21 the confidence in the combined experiments is very good. 22 And the result is just about two times as good going down 23 the San Joaquin River. 24 So there's quite -- this is quite a good result. 25 And I think, I, at least, am quite certain that the CAPITOL REPORTERS (916) 923-5447 861 1 survival is much better based on these experiments going 2 down the San Joaquin River than it would have been going 3 down the Old River. I've tried, have I succeeded? 4 MEMBER FORSTER: You have. Did you tell us why? 5 DR. MORHARDT: Well, we don't know why -- at least, I 6 don't know why, but I can tell you how bad the problem is, 7 which I'll do next. At least 60 percent of the water -- 8 C.O. CAFFREY: Wait a minute. You're going to tell 9 us how bad the problem is on your time, is that right? In 10 other words, you've completed the answer to Ms. Forster's 11 question? 12 DR. MORHARDT: Correct. 13 MR. O'LAUGHLIN: Correct. 14 C.O. CAFFREY: We were not penalizing you time-wise 15 for all of that colloquy or exchange. So you still have a 16 little over eight minutes left for your direct. 17 DR. MORHARDT: Well, in any event, I'm nearly 18 finished. 19 C.O. CAFFREY: All right. Please, proceed. 20 DR. MORHARDT: In my final exhibit, which is 21 Figure 3.2.4 of the written testimony, I want to preference 22 by saying that under -- under all conditions at least 23 60 percent of the water goes -- that comes down the San 24 Joaquin River at Vernalis goes down the Old River, at least 25 60 percent. And it can be a quite larger percent than CAPITOL REPORTERS (916) 923-5447 862 1 that. 2 If the smolt simply follow the flow then that 3 would mean at least 60 percent of the smolts were going 4 down Old River. Since we know the survival is only half as 5 good going down Old River, we can do a lot toward improving 6 the survival of the smolt through the system simply by not 7 letting them do it. 8 C.O. CAFFREY: I'm sorry, Dr. Morhardt, did we 9 identify this exhibit? 10 MR. O'LAUGHLIN: We have. 11 C.O. CAFFREY: I'm sorry. 12 DR. MORHARDT: But I haven't gotten to it yet, I'm 13 sorry. 14 C.O. CAFFREY: Okay. I meant verbally on the record, 15 I'm sorry, for the audience. 16 DR. MORHARDT: This is Figure 3.2.4 from our written 17 testimony. 18 C.O. CAFFREY: Thank you. 19 DR. MORHARDT: What that exhibit shows is that, in 20 fact, even though -- this shows the relative density from 21 realtime smolt monitoring experiments looking 22 simultaneously at the density of smolts both in Old River 23 and in the San Joaquin River of naturally occurring smolts 24 going downstream. There is a lot of data points based on a 25 number of different days of sampling. CAPITOL REPORTERS (916) 923-5447 863 1 And if the fish followed flow, i.e., if the number 2 of smolts going down Old River was directly proportionate 3 to the flow, that is to say if about 60 percent or more 4 went down, then all those data points would lie on the 5 diagonal line. In fact, most of them are above the 6 diagonal line which shows for some reason some kind of a 7 preference, assuming that the experiments were done 8 properly, for going down Old River. 9 So it's even worse then at least 60 percent of the 10 smolts going down Old River. It looks like more than that, 11 in general. So this argues again, I think, for reexamining 12 careful, as what would be done in the VAMP, the benefits -- 13 the potential benefits of putting an operable barrier in 14 the head of Old River. 15 So in summary I just want to say that it's clear 16 to me that we're very uncertain with respect to whether or 17 not flow has -- at Vernalis has any influence on survival 18 of smolts going down the -- through the Delta either 19 through Old River or through the San Joaquin River. But 20 we're pretty sure that's not -- it's a lot worse for them 21 to go down the Old River than the San Joaquin River. It 22 seems quite reasonable to do experiments and that the 23 affects of old barrier are looked at. Thank you. 24 C.O. CAFFREY: All right. Thank you, Dr. Morhardt. 25 As I understood, what we agreed to earlier, Mr. O'Laughlin, CAPITOL REPORTERS (916) 923-5447 864 1 you'll present other witnesses. And then Mr. Morhardt will 2 be back for cross-examination as part of the panel; is that 3 correct? 4 MR. O'LAUGHLIN: That is correct, Chairman Caffrey. 5 Mr. Alf Brandt will now put on Pat Brandes from the U.S. 6 Fish and Wildlife Service. 7 C.O. CAFFREY: Thank you, sir. Mr. Brandt, please 8 proceed. 9 ---oOo--- 10 DIRECT TESTIMONY OF SAN JOAQUIN RIVER GROUP 11 OF PATRICIA BRANDES 12 BY ALF W. BRANDT 13 MR. BRANDT: Thank you. Would you, please, state 14 your name for the record and spell your last name. 15 MS. BRANDES: Patricia Brandes, B-R-A-N-D-E-S. 16 C.O. CAFFREY: Good morning. Welcome. 17 MR. BRANDT: Ms. Brandes, can you tell us what you do 18 for a living. 19 MS. BRANDES: I'm a supervisory fishery biologist 20 with the U.S. Fish and Wildlife Service. And I'm assistant 21 project leader at the Sacramento/San Joaquin Estuary 22 Fishery Resource Office. 23 MR. BRANDT: So how long have you been working at 24 Delta fishery issues? 25 MS. BRANDES: For 15 years, since 1983. CAPITOL REPORTERS (916) 923-5447 865 1 MR. BRANDT: I'm going to give you DOI Exhibit 1. 2 Does that reflect your testimony? 3 MS. BRANDES: Yes, it does. 4 MR. BRANDT: Can I show you -- would you take a look 5 at DOI Exhibit 1-A. Is that an accurate reflection of your 6 statement of qualification? 7 MS. BRANDES: Yes, it is. 8 MR. BRANDT: Can you summarize your testimony for us, 9 please? 10 MS. BRANDES: Yes, I can. 11 C.O. CAFFREY: Excuse me for interrupting, 12 Ms. Brandes. Can you hear the witness in the back of the 13 room? Can you draw the mic a little bit closer. We have 14 worked on this audio system, but it still isn't perfect. 15 Thank you. 16 MS. BRANDES: You're welcome. 17 C.O. CAFFREY: Please, proceed. 18 MS. BRANDES: The primary goal of my testimony today 19 is just to give a brief overview of the most recent smolt 20 survival experiments that we have conducted and to show how 21 taking a new approach in analyzing the data provides a 22 statistically significant relationship between smolt 23 survival and the flow in the manageable range, which I have 24 defined as less than 8,000 csf. And, also, why VAMP will 25 help identify the role of exports on smolt survival at CAPITOL REPORTERS (916) 923-5447 866 1 various flow levels with the upper Old River barrier in 2 place. 3 Survival experiments have been conducted in the 4 San Joaquin Delta since the mid 1980s and have been 5 continued and refined in recent years. As Dr. Morhardt 6 explained, code-wire tagged smolts are released at various 7 locates in the Delta and recaptured at Chipps Island to 8 index survival. 9 C.O. CAFFREY: I'm going to interrupt you again, 10 Ms. Brandes, if you'll forgive me. It will be very helpful 11 for those who in the future that will be reading the 12 transcript, as you put exhibits up on the screen, even 13 though they are exhibits that have been introduced before 14 in terms of at least a verbal description, please, repeat 15 the description and the citation of the exhibits so that, 16 as I say, future readers of the transcript will know what 17 we're dealing with. Thank you. 18 MS. BRANDES: This is DOI Exhibit 1-B. 19 C.O. CAFFREY: Thank you. 20 MS. BRANDES: And this is a map that shows where 21 those coded-tagged smolt releases have occurred. Releases 22 have been made at Mossdale and at Dos Reis and at Jersey 23 Point in 1995, 1996, and 1997. In 1996 releases were also 24 made on the San Joaquin River just upstream of Turner Cut. 25 And as I just mentioned, recoveries were made at Chipps CAPITOL REPORTERS (916) 923-5447 867 1 Island to estimate an index of survival. In 1997 2 recoveries were also made at Jersey Point. 3 Smolts from both Feather River hatchery and Merced 4 River hatchery for Feather River fish facilities were used 5 in both 1996 and in 1997. In 1995 only smolts originating 6 from the Feather River hatchery were used. Can I have the 7 next overhead, please. This is DOI Exhibit 1-G. 8 And I want to explain the results of the 9 experiments that were conducted in the last three years. 10 Dr. Morhardt has talked about the benefits of upper Old 11 River barrier. And in 1997 there was a barrier in place. 12 And I wanted to show how this most recent data also 13 supports that a barrier in upper Old River can increase 14 survival through the Delta -- San Joaquin Delta. 15 I have a pointer here, but I'm not quite sure I 16 can use it. But if you look at the overhead you can see 17 Mossdale releases with the head of the Old River barrier 18 was 0.19. Just over a little further, for 1997, yes, right 19 there. And the release at Dos Reis in 1997 using Feather 20 River fish also had a survival index of 0.19. And you can 21 see that those two survivals indices were the same. 22 Generally, when there is not a barrier in upper 23 Old River, the difference between releases at Mossdale and 24 releases at Dos Reis are more different. So that is some 25 evidence that would support the barrier was helpful in CAPITOL REPORTERS (916) 923-5447 868 1 1997. In addition, if you look at the 1997 data in 2 comparison to past years, down to 1992 -- and I mention 3 that this is Exhibit 1-G. This is actually a modified 4 version of 1-G. It's been blown up to make it easier to 5 see. So it's only a portion of that exhibit. 6 But the data since 1992 as you can see the .19 we 7 got in 1997 is actually much higher than most of what we 8 have gotten in previous years, which will also provide 9 evidence that the barrier was potentially helpful. One of 10 the problems with making that comparison is that the 11 environmental conditions have changed between years. So 12 one -- a more direct comparison would be looking at 1996 13 data and 1997 data. 14 1996 and 1997 had Vernalis flows that were similar 15 and exports that were similar, although the barrier was in 16 place in 1997 whereas it was not in 1996. 17 And if you compare the Mossdale survival indices in 1997 18 with those in 1996, you can see that you got a great 19 improvement between the two years. And that improvement 20 can be, potentially, contributed to the barrier placement. 21 One other additional piece of evidence that we 22 looked at in 1997 were not only were the Mossdale releases 23 higher relative -- in 1997 relative to 1996, but the Dos 24 Reis releases were also higher in 1997 than 1996. And the 25 Dos Reis releases would be more protected by a barrier than CAPITOL REPORTERS (916) 923-5447 869 1 those released at Mossdale since the Dos Reis releases are 2 made downstream of the barrier location. 3 One thing that the barrier can do other than 4 prevent smolts from moving into upper Old River is it 5 increases flows past Stockton. So we have hypothesized 6 that, perhaps, there is two reasons why the barrier might 7 be beneficial to smolt survival. One, because they prevent 8 them from moving into upper Old River, but also the flows 9 past Stockton are increased. 10 And to test that hypothesis -- can we have the 11 next overhead, please. And this is Exhibit 1-H. To test 12 that hypothesis, we -- I plotted the smolts survival 13 indices for Chipps Island to fish released at Dos Reis 14 versus flows at Stockton. And you can see that both have 15 fish originating from the Feather River hatchery and groups 16 originating from Merced River hatchery all released at Dos 17 Reis. And you can see there's quite a bit of scatter in 18 this plot and really no relationship emergence. 19 We refined this analysis further by using -- 20 trying to use an absolute survival estimate instead of an 21 index. What I provided so far is a survival index at 22 Chipps Island, which is based on the number of recoveries 23 for the fish released at Dos Reis that were recovered at 24 Chipps Islands. The absolute survival index is calculated 25 a little bit differently. CAPITOL REPORTERS (916) 923-5447 870 1 The next overhead. And this is not in the 2 package. It's just for illustrative purposes, but in the 3 text this is explained in my written testimony how absolute 4 survival is calculated. Basically to estimate absolute 5 smolt survival you take an upstream -- the survival index 6 of an upstream group, which in this case was Dos Reis, you 7 have that survival index to Chipps Island, and you divide 8 it by the survival index to Chipps Island of a downstream 9 group. 10 And in this example we've taken the survival index 11 of fish released at Dos Reis and divided it by the survival 12 index of fish released at Jersey Point. And by dividing 13 those you have the absolute survival between Dos Reis and 14 Jersey Point. This absolute survival is a way -- a control 15 for differences in temperature between years, different 16 gear efficiency in different years. Potentially in high 17 flow years you recover a less -- a smaller percentage of 18 your fish because they're more dilute versus in a low-flow 19 year. Using these absolute smolt survivals you're 20 comparing them with any year you're able to factor out many 21 of those biases. 22 Can you turn to the next overhead. This is DOI 23 Exhibit 1-I, and this also is a modified version. And the 24 only modification is that I have put the years on the data 25 points. So when we take these estimates of absolute smolt CAPITOL REPORTERS (916) 923-5447 871 1 survival for fish released at Dos Reis, again, divided by 2 the survival index of fish released at Jersey Point, you 3 can see that you do get a relationship emerging between 4 smolt survival -- absolute smolt survival and a flow at 5 Stockton. 6 And these two lines represent -- the top line is 7 for fish released at Merced River -- not released from 8 Merced River, but from down -- originating from Merced 9 River fish facility, the bottom line is from groups of fish 10 originating from Feather River hatchery. They were all 11 released at Dos Reis, it's just a matter of which hatchery 12 they originated from. 13 And you can see that there is a relationship when 14 you combine the data between both Merced River and Feather 15 River you get a statistically significant relationship. 16 When you only use the Feather River data you also get a 17 statistically significant relationship. It's only when you 18 use the Merced River fish facility data, which is only four 19 points, you don't get a statistically significant 20 relationship. And that's likely due to the low sample 21 size, the low numbers, number of parts of the relationship. 22 And it should be noted the similarity between the 23 relationship using the Merced River fish versus that of 24 Feather River fish, essentially it's the same. 25 MS. LEIDIGH: Ms. Brandes, would it be possible for CAPITOL REPORTERS (916) 923-5447 872 1 you to supply a copy of this overhead to the parties with 2 the years on it since that is the way that you're showing 3 it to us here? 4 MS. BRANDES: Yes. 5 MS. LEIDIGH: Thank you. 6 MS. BRANDES: Sure. 7 C.O. CAFFREY: While we're at it, we probably ought 8 to include the previous transparency which was an 9 interpretation, or clarification, or a synopsis of other 10 parts of the testimony. Wouldn't that be appropriate, 11 Ms. Leidigh? 12 MS. LEIDIGH: I think so, unless it's very clear that 13 that formula is set forth someplace, but we don't know 14 where it is. And I think it's easier -- 15 C.O. CAFFREY: I think that would be helpful. 16 MS. LEIDIGH: -- to have a formula. 17 C.O. CAFFREY: Yes. Thank you. 18 C.O. STUBCHAER: Mr. Chairman? 19 C.O. CAFFREY: Mr. Stubchaer has a question. 20 C.O. STUBCHAER: While we're stopped here, you 21 mentioned that Dos Reis is below the Old River. 22 MS. BRANDES: That is true. Can you put the 23 application back? 24 C.O. CAFFREY: Let's put the exhibit back. 25 C.O. STUBCHAER: No -- CAPITOL REPORTERS (916) 923-5447 873 1 C.O. CAFFREY: This is exhibit? Please, repeat it. 2 MS. BRANDES: I think it's 1-B. 3 C.O. STUBCHAER: Yes, it's 1-B. And so unless the 4 fish swim back upstream, would it be surprising to find a 5 correlation with the flow of Stockton and the smolt 6 survival? 7 MS. BRANDES: The flow of Stockton is downstream of 8 Dos Reis. 9 C.O. STUBCHAER: Right. And the river flows toward 10 Stockton. 11 MS. BRANDES: Right. 12 C.O. STUBCHAER: In order to get up to the Old River 13 they'd have to swim upstream unless it's very tidal there. 14 MS. BRANDES: Right. 15 C.O. STUBCHAER: So I'm just wondering if this result 16 isn't kind of what one would expect, the result on 1-I. 17 MS. BRANDES: Seems to me you might expect it. 18 C.O. STUBCHAER: Yeah. In other words, it's not like 19 you release the fish above the Old River, parting of the 20 ways, you might say, in this case it might be more of a 21 surprise. 22 MS. BRANDES: Well, you've getting ahead of me, 23 because I'm going where you're going. 24 C.O. STUBCHAER: Okay. 25 C.O. CAFFREY: But it's perfectly all right, because CAPITOL REPORTERS (916) 923-5447 874 1 he's the Vice-chair. 2 MS. BRANDES: Good. 3 MR. JACKSON: He's usually ahead. 4 C.O. CAFFREY: All right. Thank you very much, 5 Mr. Stubchaer. 6 C.O. STUBCHAER: Sorry. 7 MR. BRANDT: Thank you. 8 C.O. CAFFREY: We didn't penalize you, Ms. Brandes, 9 on the time, so now we're back on your time. 10 MS. BRANDES: Okay. Well, to explore this hypothesis 11 further I went the next step and looked at fish released at 12 Mossdale, which is upstream of the upper Old River barrier 13 and compared that to flows at Stockton. And I also see a 14 statistically significant relationship, which I think is 15 very telling that as Dr. Morhardt said, you know, at times 16 you have a very large percentage of flow that's at Vernalis 17 moving into upper Old River when there is no barrier there. 18 And that's, essentially, what we have here in 19 1995, although the flows at Vernalis were between 20 and 20 25,000 csf, what you saw at Stockton was only 8,000 csf. 21 And the fact that that is -- there is a relationship to 22 survival with this -- with this relationship as well as 23 with the previous one, would indicate to me that flows are 24 important to smolt survival in this manageable range. And 25 you can get quantifiable benefits by increasing flows. CAPITOL REPORTERS (916) 923-5447 875 1 When ground flows are less than 7500 csf the 2 barrier provides a way of increasing flows past Stockton. 3 At high flows, without a barrier, the remaining flow at 4 Stockton can still be higher, as we see in the 1995. And 5 in this instance survival is also very high. So although 6 it was thought that flow benefit survival -- to survival 7 were unclear in this, quote, manageable range of flows, I 8 believe this evidence shows that there are quantifiable 9 benefits. 10 In conclusion, now, I'd just like to say that 11 although the role of flow is somewhat clearer, the 12 respected role of exports on smolt survival is still 13 unclear. Thus, we believe the focus should be on to 14 isolate the potential role of exports on smolt survival 15 through the Delta. The data gathered in the past to some 16 extent has been compounded by the flow to some extent 17 making it difficult -- making it difficult to isolate the 18 potential roles of each of the potential factors. 19 In addition, releases have not been made with the 20 upper Old River barrier in place -- excuse me, in most of 21 the past, data has not been gathered with the barrier in 22 place. So it's important to get information with the 23 barrier in place at specific flows at various export 24 levels. And VAMP will provide this consistent framework to 25 gather this information on the respective roles of flows CAPITOL REPORTERS (916) 923-5447 876 1 and exports on smolt survival through the Delta with the 2 barrier in place. And that concludes my testimony. 3 C.O. CAFFREY: All right. Thank you very much, 4 Ms. Brandes. 5 MR. BRANDT: Mr. Chairman, if I may? 6 C.O. CAFFREY: Mr. Brandt? 7 MR. BRANDT: I'd just like her to clarify the exhibit 8 that showed the ratio was -- just reflects what is actually 9 stated in paragraph 20 of her testimony. So I don't think 10 that one is necessary to put in, but I will put in the 11 other one. 12 C.O. CAFFREY: Well, I think it's helpful to provide 13 the other one, too. 14 MR. BRANDT: All right. I'd be happy to. 15 C.O. CAFFREY: That was, in effect, a ruling, it may 16 have been a soft ruling, but I think it's helpful to 17 everybody to have a copy of that to help follow the 18 narrative. So let's go ahead and provide that as well. 19 Thank you, Mr. Brandt. 20 MR. BRANDT: Ms. Whitney just asked that we provide 21 numbers. We are just going to do two things. One is 1-G 22 will just become modified 1-G. Is that okay? 23 C.O. CAFFREY: Well, you might even just call it 24 1-G.1, or A, or something so that you can at least 25 reference back to what it's actually in reference to. CAPITOL REPORTERS (916) 923-5447 877 1 MR. BRANDT: Okay. 1-G.1. 2 C.O. CAFFREY: All right. 3 MR. BRANDT: And the other one is -- it will be -- 4 the last one is going to be 1-L. 5 C.O. CAFFREY: All right, 1-L. Thank you, 6 Mr. Brandt. Thank you, Ms. Brandes, appreciate it. 7 Mr. O'Laughlin? 8 MR. O'LAUGHLIN: I notice the time is a quarter 9 before 12. The next two witnesses are best if presented 10 together, Dr. Herbold and Hanson. They will explain the 11 San Joaquin River Agreement Exhibit A, which is the 12 Vernalis Adaptive Management Plan. So if you want to start 13 them, we can start them, or if you want we can take a break 14 now and come back and present them starting at 1:00 o'clock 15 this afternoon. I think it would probably be more coherent 16 I think for the parties present if we presented them as a 17 package. And it will take longer than the 15 minutes. 18 C.O. CAFFREY: Well, it is actually 20 minutes per 19 witness, if you're going to present them as two separate 20 witnesses but sitting as a panel, so they would come 21 together. 22 MR. O'LAUGHLIN: It may not take the full 40, but 23 it's going to take more than between now and noon. 24 C.O. CAFFREY: I think that's reasonable. It's just 25 about a quarter to 12, let's break now and come back at one CAPITOL REPORTERS (916) 923-5447 878 1 1:00 o'clock. 2 MS. WHITNEY: Mr. Caffrey? 3 C.O. CAFFREY: Yes. Before you get up, everybody, 4 Ms. Whitney has a question. 5 MS. WHITNEY: The modify one should be 1-I not 1-G-1. 6 C.O. CAFFREY: It should be 1-I-1. 7 MR. BRANDT: I will make that correction. 8 C.O. CAFFREY: We stand corrected. And we will see 9 you all back here at 1:00 o'clock. Thank you all very 10 much. 11 (Luncheon recess.) 12 ---oOo--- 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 879 1 TUESDAY, JULY 21, 1998, 1:03 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Please, find your seats and we'll 5 resume the hearing. We have two biological witnesses, I 6 believe. And who's going to be making the presentation? 7 MR. BRANDT: I think it's going to be two of us that 8 are going to be -- two lawyers and two witnesses. First of 9 all, I need to do a couple opening things on Mr. Herbold. 10 One is I just want to make clear for the record that 11 Mr. Herbold was not identified -- 12 C.O. STUBCHAER: Time is up. 13 MR. BRANDT: I wasn't that long. 14 MR. JACKSON: It's a new government rule. 15 MR. BRANDT: Mr. Herbold was not on our original 16 witness list, because as you know he works for the 17 Environmental Protection Agency and was not anticipated as 18 a DOI witness originally. And later on -- he'd been 19 involve in developing the VAMP Plan and that's where he was 20 decided later. So I wanted to make it clear up front, 21 unless there's any objections, we do intend to put him on. 22 C.O. CAFFREY: So he was not covered in your original 23 submission? 24 MR. BRANDT: Back in January, right. 25 C.O. CAFFREY: Is there any objection to having CAPITOL REPORTERS (916) 923-5447 880 1 Mr. Herbold present testimony by any of the other parties? 2 Mr. Jackson. 3 MR. JACKSON: Before I decide whether I have an 4 objection, the same courtesy would be given to others who 5 find witnesses late that are critical? 6 MR. BRANDT: Yeah, I think as long as they give 7 that -- 8 C.O. CAFFREY: Are you asking him, or -- 9 MR. JACKSON: I'm actually asking him, sir, I mean in 10 the sense -- 11 MR. BRANDT: I won't object to your presenting 12 witnesses as long as you give the same kind -- 13 MR. JACKSON: Even if one might be yours? 14 MR. BRANDT: That's right. I'm willing to work with 15 you. 16 MR. JACKSON: Thank you. 17 C.O. CAFFREY: We're a little confused, because he is 18 on a list that has been presented to us here, Mr. Herbold. 19 But, of course, this list doesn't necessarily correspond to 20 what was submitted by the deadline; is that right, 21 Ms. Leidigh? I'm looking at this list that you had the 22 other day. 23 MS. LEIDIGH: Yeah, he is on that list. I believe -- 24 and you can correct me if I'm wrong, but I believe that 25 Mr. Herbold's name was submitted on a list filed on a CAPITOL REPORTERS (916) 923-5447 881 1 Notice of Intent to Appear by NHI. 2 UNIDENTIFIED MAN: That's my understanding. 3 MS. LEIDIGH: And that was timely. 4 MR. BRANDT: If you want to count that, we'll take it 5 that way. 6 C.O. CAFFREY: All right. So, Ms. Leidigh, what is 7 the rule on that within our regulations? Can he appear for 8 Mr. Brandt under that technicality? 9 MS. LEIDIGH: If NHI doesn't have any objection, I 10 think he can. 11 C.O. CAFFREY: Is there a representative from NHI? 12 MR. BRANDT: I don't think so today. 13 C.O. CAFFREY: Well, we'll go ahead and hear the 14 witness. And if it's necessary to rule differently later 15 we'll just have to do it then. What I don't want to do is 16 start a situation where anybody can come up and start 17 presenting witnesses. 18 And I thank Mr. Jackson, because he raises an 19 important point there. We'll make an exception at the 20 moment for this gentleman because he is on the list. And 21 he was submitted under Notice to Appear in a timely manner, 22 albeit, for another representative. But let's go with it 23 now and hopefully it wouldn't present a problem later. 24 MR. BRANDT: Thank you, Mr. Chairman. Another point 25 just for the record I just want to clarify, Mr. Herbold, CAPITOL REPORTERS (916) 923-5447 882 1 although he works for EPA, he's appearing for the 2 Department of Interior not in his capacity as representing 3 EPA in this proceeding. EPA is not appearing in this 4 proceeding. He is appearing on our request because he has 5 experience and expertise in matters that he's going to 6 testify to. 7 C.O. CAFFREY: So you're presenting him as a witness 8 based on his expertise and not based on any authorities or 9 representations that he may be an employee of EPA; is that 10 correct? 11 MR. BRANDT: Correct. 12 C.O. CAFFREY: All right. Please, proceed. 13 ---oOo--- 14 DIRECT TESTIMONY OF THE SAN JOAQUIN RIVER GROUP 15 OF DR. BRUCE HERBOLD AND DR. CHUCK HANSON 16 BY ALF W. BRANDT AND CLIFF W. SCHULZ 17 MR. BRANDT: Mr. Herbold, can you please state your 18 name and spell your last name. 19 DR. HERBOLD: Bruce Herbold, H-E-R-B-O-L-D. 20 MR. BRANDT: Mr. Herbold, what do you do for a 21 living? 22 DR. HERBOLD: I'm a fish biologist for the 23 Environmental Protection Agency. 24 MR. BRANDT: I put in front of you DOI, Department of 25 Interior Exhibit 5. Can you, please, look at Exhibit 5-A. CAPITOL REPORTERS (916) 923-5447 883 1 DR. HERBOLD: Yes. 2 MR. BRANDT: Is that an accurate representation of 3 your qualifications? 4 DR. HERBOLD: Yes. 5 MR. BRANDT: And is the testimony contained in 5 an 6 accurate reflection of your testimony here today? 7 DR. HERBOLD: It is. 8 MR. BRANDT: Thank you. And now, I think Mr. Schulz 9 will introduce Mr. Hanson. 10 C.O. CAFFREY: Please proceed, gentlemen. 11 MR. SCHULZ: Thank you. Good afternoon. Cliff 12 Schulz attorney for the Kern County Water Agency today also 13 for the State Water Contractors. State Water Contractors 14 are signatories to the letter of support and were direct 15 participants in the negotiation of the document. And I 16 will be presenting Dr. Hanson today. 17 Dr. Hanson, would you give your full name and 18 spell your last name for the record, please. 19 DR. HANSON: My name is Charles Howard Hanson, 20 H-A-N-S-O-N. 21 MR. SCHULZ: I show you a copy of what's been marked 22 as State Water Contractors Exhibit 1. Is that a true and 23 correct statement of your qualifications? 24 DR. HANSON: This is true and correct. 25 MR. SCHULZ: I also show you a copy of State Water CAPITOL REPORTERS (916) 923-5447 884 1 Contractors Exhibit 2. Is this a -- is this your testimony 2 in these proceedings? 3 DR. HANSON: Exhibit 2 and also the overheads that 4 are presented as Exhibit 3. 5 MR. SCHULZ: Okay. Thank you. Dr. Hanson, would you 6 sort of give us a historical summary of yours and 7 Dr. Herbold -- how you got involved in VAMP and what your 8 role was? 9 DR. HANSON: Several years ago there was a meeting 10 among a variety of participants to discuss Bay-Delta 11 issues. At that meeting there was considerable discussion 12 about the San Joaquin River, the role of exports, and the 13 role of flows as they affect juvenile chinook salmon 14 survival during their outmigration period. 15 Much of the information that was available from 16 the earlier U.S. Fish and Wildlife Service's coded-wire tag 17 studies that were discussed earlier this morning was 18 presented and discussed. And as a result of those 19 discussions it was decided that some additional 20 investigations would be appropriate to further evaluate the 21 role of flow in the lower San Joaquin River and exports on 22 juvenile chinook salmon survival. 23 It was also identified as a principle objective of 24 those experimental studies that they be designed and 25 conducted in such a way as to also provide protection and CAPITOL REPORTERS (916) 923-5447 885 1 improve the survival of naturally out-migrating salmon 2 smolts produced in the San Joaquin River tributaries. 3 Since neither Bruce or I attended that meeting we 4 were the two that were identified to put together a 5 conceptual design of what those experiments should look 6 like. And so a couple years ago Bruce and I met around his 7 kitchen table in Dixon and developed the first drafts of 8 the conceptual design for what later became the VAMP 9 program. 10 We talked about what that conceptual design would 11 be. And we actually divided the task of putting that 12 forward into two portions. The first portion was to 13 identify what experimental conditions should be, what 14 appropriate flows and exports would be for testing to 15 develop the analytical framework for that, how that data 16 would be analyzed and how it would be designed to address 17 the objectives that we were given. 18 Bruce took that on as his responsibility. I in 19 parallel took on the responsibility of developing the 20 logistics for how we would actually conduct the studies to 21 provide the necessary data to support the subsequent 22 analyses that would be used to evaluate the role of flow 23 and exports on survival. And those two pieces then came 24 together in what was originally the Herbold/Hanson first 25 few iterations of this proposal. And, then, was later CAPITOL REPORTERS (916) 923-5447 886 1 expanded and evolved into what is now the VAMP. 2 MR. SCHULZ: Was that document -- was that evolution 3 did it involve other biologists? 4 DR. HANSON: Yeah. It involved a variety of other 5 biologists, other policy makers, statisticians, folks from 6 the university sector, water operators, hydrologists, very 7 interdisciplinary approach involving a wide variety of 8 participants in many, many long discussions. 9 MR. SCHULZ: And what you and Bruce are going to 10 testify to is the outcome of that process? 11 DR. HANSON: It is the outcome of that process that 12 was formerly documented through a whole series of iterative 13 drafts of what has become Attachment A to the San Joaquin 14 River Agreement, which includes the experimental design and 15 the logistics for how the VAMP program would actually be 16 implemented and conducted. 17 MR. SCHULZ: Now, what we're going to do is Bruce 18 Herbold will be testifying to the first, I think, three, or 19 four -- 20 DR. HERBOLD: Three. 21 MR. SCHULZ: -- overheads that are marked as SWC 22 Exhibit 3-A through G or H, whatever the last number is. 23 And, then, Dr. Hanson will come back and deal with the rest 24 of those overheads. So that will get it back to 25 Dr. Herbold. CAPITOL REPORTERS (916) 923-5447 887 1 C.O. CAFFREY: All right. Thank you, sir. 2 C.O. CAFFREY: Do you need the screen, Mr. Herbold? 3 DR. HERBOLD: Yes, please. Good afternoon. Thank 4 you for allowing me to make this presentation. I was going 5 to hate to appear and come up from San Francisco 6 pointlessly again. So as Dr. Hanson described we were 7 charged with coming up with something that was a protective 8 experiment for San Joaquin salmon out-migrating. And it 9 has become to be called the VAMP. 10 And I would just like to go into my portion of it, 11 which was: How did we choose these flow and exports 12 numbers as the targets that was -- that you've already seen 13 described as the targets trying to cover what we hoped to 14 get out of the study and how those numbers were derived. 15 We were working within three objectives. 16 One, was to protect the salmon. And I had always 17 taken this as a charge -- although it varied in 18 discussions, I'd taken it as a charge at to protect them at 19 least to that comparable to the 1995 Water Quality Control 20 Plan. Secondly, provide the scientific information, 21 because there had been lawsuits filed about the validity of 22 those numbers that were in the Water Quality Control Plan 23 partly based on the scientific understanding that underlaid 24 those. So the goal was to improve that scientific 25 understanding. And, finally, to use that in a way that CAPITOL REPORTERS (916) 923-5447 888 1 would give better confidence in future decisions about the 2 conservation of San Joaquin stocks. And I'm sorry, yes, 3 that's the -- I'm using State Water Contractor's exhibits 4 3-B for that. 5 Little bit of background, during the years that 6 I'd been -- 7 C.O. CAFFREY: Is this a separate exhibit, 8 Mr. Herbold? 9 DR. HERBOLD: Yes. I'm sorry. Thank you. This is 10 State Water Contractors's Exhibit 3-C. And before getting 11 to it, I would like to point out something that didn't come 12 through that underlaid the effort to do this experiment: 13 To separate the affects of exports from flows on salmon 14 passage was that, historically, the two have been linked in 15 that at times of high flow we've tended to have low 16 exports. And at times of low flows we've tended to have 17 high exports. So it was not possible to use historical 18 data to separate those two factors, because they varied 19 together. So part of the reason for this design was to 20 design cases in which you varied exports while holding 21 flows constant, and varied flows while holding exports 22 constant. That was the goal. 23 So then picking the actual numbers became a 24 question of some physical constraints on the system and 25 some of the regulatory constraints on the system. The CAPITOL REPORTERS (916) 923-5447 889 1 physical constraints were that minimum exports, turning on 2 one pump pretty much along with some delivery needs out of 3 that, gave a low number for exports of about 1500. 4 And since there was an approved permit for 5 building the head of Old River barrier and that barrier 6 cannot withstand flows higher than 7500 csf down at 7 Vernalis, that provided a high number for the flows. So 8 that gave us one combination, that would be low exports and 9 high flows, low exports being 1500, high being the 7,000, 10 as the most protective condition we could get. 11 Then holding that exports constant -- I'm sorry 12 let me take that through. From the flows angle, at flows 13 of 7,000, then, the highest exports that we could have and 14 still be within what Dr. Hanson and I perceived as the 15 intention of the biological opinion to hold that ratio of 16 flows to exports to better than two to one was to have 17 exports be no more than 3,000 at a Vernalis flow rate of 18 7,000. 19 So we had two of our experimental conditions 20 tagged at a constant flow of 7,000, have exports at either 21 1500 or twice that at 3,000. That kept us within the 22 confines of the biological opinions's intent, as I 23 understood them, and kept us with the head of Old River 24 barrier in place. 25 Then holding exports at 1500, what should the CAPITOL REPORTERS (916) 923-5447 890 1 lowest flows be? And by the same token, if flows and 2 exports by the intent of the biological opinion was to be 3 at least two to one, then the minimum flow we could have at 4 the minimum export would be 3200. That gave us a 2.1 5 ratio. Then since we wanted to cover a range of flows, we 6 added two more points: One holding exports still at 1500 7 and allowing flows to increase to 4450 gave us three flow 8 rates at the same export level, which we hoped was a 9 sufficient range of flows to tell us something at the end 10 of the experimental time. 11 We, also, were concerned that these interactions 12 between flows and exports might not be simple linear 13 responses. That there might be some curvature to the 14 response, so a middle of each, that is flows of 5700 and 15 exports of 2250 would give us the data we would need to 16 tell whether the -- the straight-line relationships, or 17 curvilinear relationships in the interactions between flow 18 rates and exports on salmon passage. 19 So that way we ended up with five categories of 20 targets. And in all of these we were meeting the better 21 than two-to-one ratio, but we weren't using the ratio as 22 the basis for design, because if you use a ratio you still 23 maintain that tie between flows and exports varying 24 together, which wasn't useful. 25 Just as comparison, in terms of evaluating whether CAPITOL REPORTERS (916) 923-5447 891 1 this was going to fill in missing data, the historical 2 conditions had generally been that the ratios were -- 3 during the drought of '87 to '92 those ratios had been the 4 other way around and had been one to five, or one to eight 5 through a lot of the dry years of the drought. So this was 6 a substantial change and was really producing conditions 7 that we didn't have comparable historical data for. With 8 that, I'd like to pass it off to Dr. Hanson. 9 DR. HANSON: What I'll be describing are the 10 experimental elements of how we actually developed and 11 designed the tests to evaluate salmon smolt survival. This 12 is State Water Contractors's Exhibit 3-D. And it describes 13 one of the three objectives that Bruce originally 14 presented. This objective is to quantify the relationship 15 between San Joaquin River flow at Vernalis, State and 16 Federal Water Project exports, and salmon smolt survival 17 during the spring emigration period. 18 The experimental design that we selected to 19 address this objective was based on a coded-wire tag marked 20 "Recapture Design." You'd heard earlier this morning about 21 some of the historical experiments that were conducted in 22 the lower San Joaquin River by the U.S. Fish and Wildlife 23 Service as described in both the testimony by Dr. Morhardt 24 as well as that by Pat Brandes. 25 We carefully looked at the results of those CAPITOL REPORTERS (916) 923-5447 892 1 earlier coded-wire tag survival studies and evaluated the 2 strengths and the weaknesses inherent in how those studies 3 had been designed, how the studies had been conducted, the 4 various factors that influence the interpretation of those 5 study results. And from that we wanted to accomplish two 6 things. 7 We wanted to develop salmon smolt survival studies 8 that took advantage of the historical information that had 9 already been collected through similar studies to provide 10 continuity of the data to the extent we could, but we also 11 wanted to modify the studies to improve them to address 12 some of the areas that compounded the interpretation, or 13 made interpretation of the resulting data much more 14 difficult, much more uncertain. 15 So we used that as our technical foundation, and 16 as I had described earlier, developed the whole series of 17 draft documents that put forward the experimental design 18 for the VAMP survival studies. We did that for the purpose 19 of developing peer review, to have a variety of scientists 20 involved in Bay-Delta issues look at our experimental 21 design from various perspectives including biological 22 perspectives, logistics, continuity with previous studies, 23 the ability to implement on a hydrologic basis, our ability 24 to actually detect differences and to recover fish as part 25 of our program. And the resulting experimental design is CAPITOL REPORTERS (916) 923-5447 893 1 documented as Attachment A to the San Joaquin River 2 Agreement. And that's what I'll be describing in this 3 testimony. 4 This is State Water Contractor Exhibit E. And as 5 I mentioned we had a variety of technical meetings that 6 brought together researchers and scientists from various 7 organizations to participate in a series of technical 8 meetings to discuss the draft experimental design for the 9 VAMP program. Participants in these meetings included 10 representatives of the California Department of Water 11 Resources, California Department of Fish and Game, the U.S. 12 Fish and Wildlife Service, the U.S. Environmental 13 Protection Agency, USGS, the San Joaquin River Group 14 Authority, the State and Federal Water Project export 15 interests, as well as a variety of environmental 16 organizations. 17 We had a number of useful discussions to talk 18 about priorities, contingency plans, and the design of the 19 program from their perspective. This is State Water 20 Contractors Exhibit 3-F. And it describes the test 21 conditions that were established for the VAMP testing 22 program. The tests were decided to be conducted during the 23 period from April 15th to May 15th. 24 We used that as our basic time period, although 25 within the VAMP experimental design there are provisions to CAPITOL REPORTERS (916) 923-5447 894 1 allow for fluctuation in that time period from one year to 2 the next. That period was selected after reviewing 3 information on the seasonal timing of salmon smolt 4 outmigration from the lower San Joaquin River, on looking 5 at water temperature conditions and a variety of other 6 factors. 7 As part of the experimental design, as Bruce 8 described, one of the key components was to develop managed 9 San Joaquin River flows and State and Federal Water exports 10 within the matrix that Bruce described. A key modification 11 from the earlier studies, however, had to do with actually 12 managing those flows and exports to maintain stable 13 conditions throughout this mid May -- mid-April through 14 mid-May time period. 15 In the previous investigations both flow and 16 export varied considerably during that spring time period. 17 That type of variation and the two key parameters that 18 we're trying to investigate contributes directly to 19 increased variability in the data, makes interpretation of 20 the data much more difficult, and as we've seen from some 21 of the earlier testimony, contributes to substantially 22 higher variation. This component of our program was 23 specifically designed and included to help address those 24 key issues. 25 Another issue that had been identified through the CAPITOL REPORTERS (916) 923-5447 895 1 earlier studies was the influence of water temperature in 2 the lower San Joaquin River on salmon smolt survival. 3 Salmon are a cold-water species that are sensitive to 4 exposure to elevated water temperatures. And since we were 5 focusing on evaluating the affect of flow and export, we 6 didn't want to compound our study unnecessary by having 7 temperature as another variable. And so we have limited 8 the period of the VAMP studies to those time periods when 9 the temperatures in the lower San Joaquin River are 68 10 degrees Fahrenheit or less. 11 As you heard earlier this morning, the 12 installation of the head of Old River barrier is a key 13 element in the overall VAMP testing program. It was a key 14 element in terms of deciding what appropriate flows could 15 be tested. And it is an integral part of the overall 16 experimental design. The true VAMP tests are conducted in 17 those years when the head of Old River barrier is 18 installed. 19 We, however, recognized that because of high flows 20 and because of a number of other conditions the head of Old 21 River barrier may not be installed every year. 1998 was an 22 example, because of the high flows in the lower San Joaquin 23 River the barrier could not be installed. The VAMP 24 experimental design has a contingency plan that takes into 25 account opportunities to do constructive testing of salmon CAPITOL REPORTERS (916) 923-5447 896 1 smolt survival in those years when the head of Old River 2 barrier is not present. 3 So it's a contingency plan that allows us to take 4 advantage of the testing program and provide valuable data 5 within the overall constraints and framework established by 6 the VAMP program. 7 This is State Water Contractors's Exhibit 3-G and 8 it describes associated measurements, primarily physical 9 and some biological measurements, that are made to provide 10 better documentation on the actual conditions occurring 11 during each of the VAMP tests. As part of the testing 12 program, the USGS has deployed UVM measurement systems 13 within the lower San Joaquin River and elsewhere within the 14 Delta that provide detailed information on velocities and 15 flows. 16 The Department of Water Resources also conducts 17 extensive flow monitoring within the Delta and within the 18 lower San Joaquin River that provide information that allow 19 us to, then, document what the actual flow conditions were. 20 USGS in the previous several years has also been conducting 21 parallel dye-tracking studies where they release dye into 22 the lower San Joaquin River at, for example, Mossdale the 23 same location where the fish are released at the same time 24 that we do the fish release. So they can actually track 25 the physical movement of the dye and use that to provide CAPITOL REPORTERS (916) 923-5447 897 1 better information for calibrating their hydrologic models 2 and looking at water flow patterns within the Delta 3 coincidence with the period we are monitoring salmon smolt 4 movement as part of this test. 5 We've also developed and implemented an extensive 6 water temperature monitoring network. We've deployed in 7 1998 13 temperature recorders that record water temperature 8 at locations ranging from Mossdale down to Chipps Island, 9 encompassing our study area every 24 minutes during the 10 period that these fish are in the water. 11 In terms of looking at those water temperature 12 results, we also monitor temperatures that are occurring 13 within the hatchery, the hatchery transport truck, and 14 subsequently at the release site to address some of the 15 concerns and issues with respect to the earlier studies. 16 A subset of the fish that are released are also 17 held at the release locations in live cars. These are the 18 cages that we had described in the April workshop. About 19 200 fish are held from each of the release sites for a 20 48-hour period to determine their post-release survival, 21 determine whether there was stress or mortality associated 22 with trucking and release as well as to monitor their 23 physiological condition during that post-release holding 24 period. 25 Those fish are subsequently sacrificed and become CAPITOL REPORTERS (916) 923-5447 898 1 part of our coded-wire tag quality control program. So 2 that we actually go back and read each of the individual 3 tags to confirm the fish were appropriately tagged and that 4 we're actually monitoring the test groups that we think 5 we're monitoring. 6 The VAMP program was also designed to provide a 7 framework for a series of complementary studies. These 8 studies could include consideration of the affects of 9 toxicants on survival, predation, a variety of other 10 factors that may also be influencing juvenile salmon smolt 11 survival during their passage through the south Delta. 12 Those are not a direct component of the VAMP program, but 13 are a complementary element. 14 C.O. STUBCHAER: Mr. Chairman? 15 C.O. CAFFREY: Mr. Stubchaer. 16 C.O. STUBCHAER: On that last slide, could you tell 17 me what "UVM" means after USGS? 18 DR. HANSON: I'm not a real expert on how USGS does 19 this flow monitoring, but these are their underwater 20 velocity measurements and meters. 21 C.O. STUBCHAER: Okay, underwater velocity meters. 22 MR. SCHULZ: Bruce? 23 DR. HERBOLD: Ultrasonic. 24 DR. HANSON: Ultrasonic velocity meters. And these 25 are systems that they have located at various locations in CAPITOL REPORTERS (916) 923-5447 899 1 the lower San Joaquin River, the Delta, and the Sacramento 2 River. And they provide a real consistent and detailed 3 record of what the velocity profiles are within the 4 channels and allow us to look not only at the flows, but 5 also at the changes in the direction of the flow in 6 response to the tidal conditions. 7 C.O. STUBCHAER: Thank you. 8 DR. HANSON: In terms of the way the studies are 9 being conducted, this is State Water Contractors Exhibit 10 3-H, we are using hatchery-produced juvenile chinook 11 salmon. Our priority within the VAMP experimental design 12 is to use fish of San Joaquin River stock origin. These 13 are fish that are produced at the Merced River hatchery, or 14 some alternative suitable source from the San Joaquin River 15 drainage system. 16 Because of concerns about whether we would have a 17 sufficient stock available of juvenile salmon to be used 18 each year, the VAMP experimental design also has a 19 contingency plan for using Feather River stock juvenile 20 salmon as part of our coded-wire tag studies on a second 21 priority. The coded-wire tagging, as Dr. Morhardt 22 described this morning, involves the placement of a small 23 metal wire and on the wire is etched, in essence, a bar 24 code, much like you see in a grocery store, that allows for 25 the identification of individual groups -- or individual CAPITOL REPORTERS (916) 923-5447 900 1 fish once they're recaptured in the hatchery. 2 We use that coded-wire tagging process to tag 3 groups of about 25,000 fish each. And they are 4 subsequently then held in a hatchery for a period of 5 recovery, during which time disease and health inspections 6 are conducted by representatives of the Department of Fish 7 and Game to certify fish are healthy at the time of their 8 release. And there are also a series of quality control 9 and quality assurance checks that are done to document as 10 part of the overall study the numbers of fish that were 11 coded-wire tagged, the numbers that were subsequently 12 released, tag retention, and a variety of other parameters. 13 This is State Water Contractors's Exhibit 3-I and 14 it -- 15 C.O. CAFFREY: Excuse me, Mr. Hanson, just so that 16 you'll know, if you're not keeping track, we've allowed you 17 40 minutes for the presentation by both witnesses. And you 18 have 14 minutes remaining. 19 DR. HANSON: Thank you. This exhibit describes the 20 coded-wire tag release strategy. The VAMP program 21 stipulates two different releases. The first release is 22 scheduled to occur approximately April 16th to April 20th. 23 The second release occurs approximately April 23 to 28. 24 Releases are made at four locations including Mossdale, Dos 25 Reis, the mouth of the Mokelumne River, and at Jersey CAPITOL REPORTERS (916) 923-5447 901 1 Point. 2 For the first release, 75,000 coded-wire tagged 3 salmon would be released at Mossdale; 50,000 fish would be 4 released at Dos Reis; 50,000 at the mouth of the Mokelumne; 5 and 50,000 at Jersey Point. Because we're marking fish in 6 groups of about 25,000, the first release at Mossdale 7 actually includes three separate tag groups of 25,000 fish 8 each, making a combined total release of 75,000. That 9 provides us an opportunity for replication within an 10 experimental release group. 11 By having two releases each year, it provides us 12 the opportunity to develop two independent data points for 13 each of the flow and export combinations that Bruce 14 described in the earlier matrix. So it allows for a robust 15 test with what we think to be a sufficient number of fish 16 given our recapture methods for recovering enough fish to 17 make valid and quantitative estimates of salmon smolt 18 survival. 19 This is State Water Contractors's Exhibit 3-J. 20 And it describes in a little bit of detail the release 21 locations. The releases, as Ms. Brandes pointed out, occur 22 at Mossdale which is located on the lower San Joaquin River 23 just upstream of the confluence of Old River; at Dos Reis 24 on the lower San Joaquin River just downstream of the 25 confluence with the head of Old River; and then two CAPITOL REPORTERS (916) 923-5447 902 1 releases that we're considering to be our controls. 2 The first of those is at the mouth of the 3 Mokelumne River. And those fish become controls to allow 4 us to calculate gear-collection efficiency for our 5 recapture location at Jersey Point. Our second control 6 occurs at Jersey Point, which allows for the calculation of 7 gear efficiency and the corrections for sampling in the 8 U.S. Fish and Wildlife Service recapture locations at 9 Chipps Island. 10 So we have built into our experimental design two 11 release locations in the lower San Joaquin River that 12 provide us estimates of salmon smolt survival. Since one 13 is upstream and one downstream of the confluence with the 14 head of the Old River barrier, we can also use that data to 15 further evaluate the effectiveness of the Old River barrier 16 on salmon smolt survival. And we can correct these 17 survival estimates to account for our control releases at 18 the downstream locations. Those changes to the design, we 19 think, provide a much more powerful basis for evaluating 20 salmon smolt survival in a much better ability to detect 21 differences in survival between our flow and export 22 conditions included as part of the test. 23 This is State Water Contractors's Exhibit 3-K and 24 it describes the recapture methods and locations that are 25 built in as part of the VAMP program. One of the other CAPITOL REPORTERS (916) 923-5447 903 1 major modifications that was made to the original 2 coded-wire tag studies was the addition of a sampling 3 location at Jersey Point. 4 This sampling location was specifically developed 5 for use as part of the VAMP testing program. It was 6 specifically designed as a recapture location to collect 7 fish coming down the lower San Joaquin River as part of our 8 release groups. Sampling at that location is conducted 9 using a Kodiak trawl, which we felt was our most effective 10 sampling gear. Sampling is intensive. It's conducted 7 11 days a week, 18 hours a day starting April 15th and 12 continuing through June 1st. So it's a very 13 intensive-sampling program at Jersey Point. 14 A pilot study was done in 1997 to evaluate whether 15 this would be effective. It was done on an abbreviated 16 basis and showed that sampling at Jersey Point was an 17 effective tool and a major complimentary element to the 18 survival studies included in VAMP. We did those same 19 studies on a complete basis in 1998. 20 During that time sampling was conducted throughout 21 that time period. And about 12,000 juvenile chinook salmon 22 were collected, of which about 1800 were coded-wire tagged. 23 So it proved, again, in 1998 to be a very valuable and very 24 key sampling and recapture location for the VAMP survival 25 studies. The U.S. Fish and Wildlife Service will continue CAPITOL REPORTERS (916) 923-5447 904 1 to sample at Jersey Point. This provides continuity with 2 the earlier survival studies that were conducted -- oh, 3 this is at Chipps Island. 4 The sampling at Chipps Island in 1998 was expanded 5 to include additional sampling efforts on an experimental 6 basis to determine whether that would actually help in 7 further recaptures. And, in addition, we also get 8 coded-wire salmon recaptured at the State and Federal Water 9 Project salvage facilities. So those are the three 10 principle sampling locations for juveniles. As these 11 coded-wire tagged salmon subsequently move to the ocean and 12 mature, we also get recoveries from the ocean commercial 13 fishery and recreational fishery which will provide us with 14 another independent measure of salmon smolt survival, but 15 three years later or more. 16 This is State Water Contractors's Exhibit 3-L. 17 And as part of the VAMP study design, as Bruce pointed out 18 and I've reiterated, one of the principle objectives was to 19 provide not only for an experiment condition, but to also 20 provide conditions that would benefit the survival of 21 juvenile salmon naturally migrating out from the San 22 Joaquin River drainage through the Delta. And to evaluate 23 the level of potential protection, a series of hydrologic 24 models were run to provide information on what potential 25 conditions would be within the Delta under the VAMP program CAPITOL REPORTERS (916) 923-5447 905 1 and a series of modeling exercises under the State Board 2 Water Quality Control Plan. 3 We wanted to see how some of the key parameters 4 that we think influence salmon smolt survival would be 5 comparable, or would be different among those two tests. 6 In that process we looked at the State and Federal Water 7 Project exports. And what we found, as Bruce described, is 8 that under the VAMP program for the testing period State 9 Water Project and Central Valley Project exports combined 10 are substantially reduced under the VAMP program as 11 compared with the Water Quality Control Plan. 12 We also looked at the installation of the head of 13 Old River barrier. That is an integral and important 14 component of the VAMP program. It was not an element 15 included in the Water Quality Control Program. It will 16 provide additional benefit based on the results of the 17 earlier analyses for improving salmon smolt survival as 18 they emigrate from the lower San Joaquin River. 19 We also compared San Joaquin River flows. And 20 what we found was that under both the Water Quality Control 21 Plan and the VAMP program, flows in the lower San Joaquin 22 River would be substantially better than they were under 23 the environmental baseline condition in the absence of 24 these two. 25 When we compared the Water Quality Control Plan CAPITOL REPORTERS (916) 923-5447 906 1 and VAMP, in a majority of the years the flows under both 2 plans were comparable during that spring-testing period. A 3 bypass flow index was also calculated. And the bypass flow 4 index represents the difference between the flow in the San 5 Joaquin River minus the water that's exported by the State 6 and Federal Water Projects. So it's the component of water 7 that would be passing downstream into the Delta. 8 And what we found was that under the VAMP that 9 bypass flow was higher than it was under the Water Quality 10 Control Plan. So in virtually all of these comparisons it 11 was comparable, or provided roughly the same level of 12 protections, or in some cases, added protections under VAMP 13 when compared with the plan. 14 Based on the results of those analyses and 15 comparisons and based on the best professional judgment, 16 because we're still in the process of comparing and 17 evaluating salmon smolt survival and additional datae as 18 has been discussed this morning needs to be collected, it 19 was concluded that environmental conditions under both the 20 1995 Water Quality Control Plan and VAMP will improve the 21 level of protection and survival for fall-run chinook 22 salmon smolts during the spring emigration period when 23 compared with the existing environmental baseline 24 conditions; and that the environmental conditions within 25 the lower San Joaquin River and Delta under VAMP provide an CAPITOL REPORTERS (916) 923-5447 907 1 equivalent level of protection to that afforded by the 1995 2 Water Quality Control Plan. And with that I'll conclude. 3 C.O. CAFFREY: Thank you, Mr. Hanson. You have -- is 4 Mr. Herbold going to testify now? Is that -- 5 DR. HERBOLD: No, I'm done. 6 MR. SCHULZ: That concludes these witnesses. 7 C.O. CAFFREY: I thought you were both coming on 8 twice -- oh, they did. You faked me out when he sat and 9 then he stood. Okay. Thank you, gentlemen. Now, do I 10 understand you have yet two more witnesses and then we'll 11 have -- 12 MR. O'LAUGHLIN: Yes. Marty Kjelson from the U.S. 13 Fish and Wildlife Service. 14 MR. BRANDT: Where's Marty? 15 MR. O'LAUGHLIN: He's right there. 16 ---oOo--- 17 DIRECT TESTIMONY OF THE SAN JOAQUIN RIVER GROUP 18 OF DR. MARTIN KJELSON 19 BY ALF W. BRANDT 20 MR. BRANDT: Mr. Kjelson, would you state your name 21 for the record and spell the last name. 22 MR. KJELSON: Yes. I'm Martin Kjelson. The last 23 name is spelled, K-J-E-L-S-O-N. 24 MR. BRANDT: Mr. Kjelson, I'm going to hand you 25 Department of the Interior Exhibit 2 -- can you tell me, CAPITOL REPORTERS (916) 923-5447 908 1 first, what do you do for a living? 2 MR. KJELSON: Pardon? 3 MR. BRANDT: What do you do for a living? 4 MR. KJELSON: I am a supervisory fishery biologist 5 and project leader for the Fish and Wildlife Service, 6 Stockton office. 7 MR. BRANDT: How long have you been working on Delta 8 fishery issues? 9 MR. KJELSON: Well, a little over 20 years. 10 MR. BRANDT: And looking at DOI Exhibit 5, 11 particularly 5-A -- excuse me, I've been saying 5, that was 12 Mr. Herbold's testimony. Looking at Exhibit 2-A is that an 13 accurate statement of your qualifications? 14 MR. KJELSON: Yes, it is. 15 MR. BRANDT: And would you provide a summary of it? 16 Actually, one more question, is Exhibit 5 an accurate 17 reflection of your testimony here today? 18 MR. KJELSON: Yes, it is. 19 MR. BRANDT: Would you provide a summary of that 20 testimony? 21 MR. KJELSON: Let me make a correction, Exhibit 2 is 22 an accurate summary. 23 MR. BRANDT: Yes, thank you. 24 MR. KJELSON: Thank you. 25 C.O. CAFFREY: I hope everybody recognizes today is CAPITOL REPORTERS (916) 923-5447 909 1 Tuesday. I just -- 2 MR. BRANDT: Not Friday. 3 C.O. CAFFREY: I have a list here of all the exhibits 4 and the numbers. And I thank you, Mr. Kjelson, you're just 5 a little bit ahead of me. Thank you for that correction. 6 Please, proceed. 7 MR. KJELSON: Thank you. Today I wish to focus on 8 three key aspects of my testimony. First, successful 9 implementation of the Vernalis Adaptive Management Plan, 10 VAMP, will require a continuous diligence due to the 11 challenging nature of the VAMP objectives. 12 Two, as its name denotes, VAMP must be done 13 through a comprehensive adaptive management approach. And 14 three, the reasons for the VAMP study conditions providing 15 salmon protective equivalent to the 1995 Water Quality 16 Control Plan. 17 I will now comment briefly on each of these 18 points. May I have the first overhead? This is DOI 19 Exhibit 2-A and lists the critical issues of VAMP success 20 that require diligence in their implementation. I will 21 discuss the first three in some detail. 22 I'm sorry -- we're having fun with these exhibits. 23 This is actual 2-B. First, VAMP objective two is to 24 separate the relative affects of export flow with an 25 observation of the head of Old River barrier on smolt CAPITOL REPORTERS (916) 923-5447 910 1 survival. DOI you Exhibits 2-C, 2-D and 2-E, part of my 2 written testimony, provide review comments by biologists 3 and statisticians on the potential of achieving this 4 objective. Their collective opinion suggests that it will 5 be a challenge to fully meet the objective due to the 6 variability and potential biases in this survival data. 7 Having said that, I believe that the VAMP is a sound 8 technical foundation and makes considerable efforts in an 9 attempt to overcome such variability and biases. And 10 Dr. Hanson and Herbold had comments relative to that 11 specific aspect of the technical -- or experimental design. 12 While there is uncertainty as to how well we will 13 be able to quantify in a statistical sense the relative 14 affects of export and flow on survival, it is my opinion 15 that VAMP should yield critical information for future 16 salmon management decisions. This information will allow 17 the State Water Resources Control Board to review and 18 revise, as justified, the water quality objectives in the 19 Bay-Delta plan to ensure that San Joaquin salmon are 20 protected during their spring outmigration. 21 Secondly, the VAMP is to be implemented using the 22 adaptive management concept in several ways. Number one, 23 flow and export target conditions depends on the San 24 Joaquin hydraulic conditions. Hence, we will adapt to 25 those annually varied hydrologies. Secondly, we must adapt CAPITOL REPORTERS (916) 923-5447 911 1 as we gain new knowledge from VAMP and fill in existing 2 data gaps as soon as possible. 3 For example, a review of target flows and exports 4 for which we have survival data based on our historical 5 work indicates we have no information that the high 6 management of flows of 7,000 and exports levels of 1500 and 7 3,000 csf -- these represent one extreme of the target 8 conditions where we have study survival -- where we have 9 not studied survival. We do have data on the other 10 extreme, at low flows of 2,000, 3200 csf and 1500 export 11 and at flows greater than -- or less than 1,000 at a wide 12 range of exports. 13 Statistician Dr. Ken Newman has recommended that 14 the extremes of the conditions within the flow export 15 target matrix be tested first until the relationship with 16 those extremes is clear. Now, well the natural hydrology 17 may limit our ability to some degree each year, we must 18 determine what conditions would provide the most useful 19 information and strive to obtain those test conditions. 20 I have some concern that the San Joaquin River 21 Agreement would enable such adaptiveness to occur. As 22 written, however, it suggests that the management committee 23 would consider potential changes in flow and export levels 24 suggested by the San Joaquin River technical committee. I 25 would like to stress that it is important that the CAPITOL REPORTERS (916) 923-5447 912 1 management committee approve such changes to enable VAMP to 2 be as efficient as possible. 3 And, thirdly, to assure restoration of San Joaquin 4 salmon stocks is done as soon as possible, I believe future 5 salmon management decisions must address new information 6 gained by the VAMP. The San Joaquin River Agreement 7 provides for annual data review and acknowledges the 8 Board's try and review process and potential to revise the 9 water quality objectives in the '95 Bay-Delta Plan should 10 new information warrant. 11 Timely review of VAMP results and other new salmon 12 information from the San Joaquin River tributaries is 13 critical to determine if the Bay-Delta Plan's narrative 14 salmon objective could double the natural production of 15 chinook is being met. 16 Next of major importance to VAMP success is 17 meeting the needs of adequate numbers of study fish 18 preferably from the San Joaquin basin origin. Other 19 tributary salmon studies also use coded-wire tagged salmon. 20 An assessment of supply versus demand suggests we may not 21 have an adequate number of study fish in all years to meet 22 tributary and Delta coded-wire tag study demand. Resource 23 agencies and other interested parties will be meeting this 24 summer to develop an effective and responsible way to meet 25 that challenge. Mr. Loudermilk from the Department of Fish CAPITOL REPORTERS (916) 923-5447 913 1 and Game will comment further on this issue. 2 Now to save time, I won't discuss the last four 3 issues noted on this exhibit, but refer you to my written 4 testimony for more details. Finally, I would like to 5 conclude my summary with a brief discussion of the issue of 6 equivalency. And that's shown as DOI Exhibit 2-G, which I 7 made a slight modification of to clarify the text. It's 8 consistent with the text, but it's a little more clearer 9 than the one I submitted some months ago. 10 Based on my comparison of the 1995 Water Quality 11 Control Plan's flow and export objectives, with the target 12 flow and export conditions of VAMP, I believe the level of 13 salmon production offered by VAMP is equivalent to that of 14 the Water Quality Control Plan. 15 First aspect of that deals with flow. When 16 comparing the unstandardized raw flows of the two plans it 17 indicates that at times the VAMP flows are slightly lower 18 than that of the Water Quality Control Plan. This 19 comparison does not, however, consider that the VAMP with 20 the head of Old River barrier would provide flows at 21 Stockton that are considerably greater than those in the 22 Water Quality Control Plan without the barrier. 23 Relative to export, the maximum VAMP target 24 exports are at 3,000 csf, while the '95 Water Quality 25 Control Plan exports are at a maximum total of 1500 csf, or CAPITOL REPORTERS (916) 923-5447 914 1 1,000 -- or 100 percent of the Vernalis flow, whichever is 2 greater. And this yields a ratio of one-to-one of Vernalis 3 inflow to export. 4 And the VAMP in flow-to-export ratio is always 5 greater than two to one. And this greater ratio for the 6 VAMP should decrease both salmon entrainment and lessen the 7 degree of reverse flow in south Delta channels. I believe 8 both conditions should increase salmon protection over that 9 afforded by the plan itself. 10 And, finally, the head of Old River barrier, the 11 use of the barrier is not required in the Bay-Delta plan. 12 And based on that testimony of Dr. Morhardt and Patricia 13 Brandes, I believe the head of Old River barrier under VAMP 14 will provide a definite benefit to smolt survival over that 15 provided without a barrier under the Bay-Delta Plan. And 16 based upon the above, I believe that VAMP provides 17 equivalent protection to that afforded by the Water Quality 18 Control Plan. 19 Finally, in conclusion, number one, the VAMP is a 20 sound technical foundation and characterizes the challenge 21 of obtaining knowledge in the complex Delta ecosystem. 22 Two, information sought under VAMP is critical to future 23 Board decisions relating to salmon protection in the Delta. 24 Three -- you can take that off. 25 Three, for VAMP to be successful all parties must CAPITOL REPORTERS (916) 923-5447 915 1 be diligent to implement the plan in a complete manner. 2 Four, VAMP must be implemented using adaptive management in 3 a comprehensive manner and using the resulting VAMP and 4 tributary data in the triennial review to ensure the 5 Board's narrative salmon standard is being met. And, five, 6 VAMP provides equivalent protection to salmon with that of 7 the '95 Water Quality Control Plan. 8 Thank you. 9 C.O. CAFFREY: Thank you, Mr. Kjelson. 10 MS. LEIDIGH: Mr. Brandt, I noticed you change 11 Exhibit 2-G. 12 MR. BRANDT: Yes. We will submit a modified 2-G it 13 adds one sentence, the "however" sentence in the first 14 point. We'll submit that and mail it to everybody as well. 15 MS. LEIDIGH: Okay. Thank you. 16 C.O. CAFFREY: Thank you, Mr. Brandt. Now, is this 17 the last of the witnesses before we go to a panel? 18 MR. CAMPBELL: I believe so. 19 MR. O'LAUGHLIN: Yes, it is. 20 C.O. CAFFREY: Thank you, Mr. O'Laughlin. 21 Mr. Campbell. Good afternoon, sir. 22 MR. CAMPBELL: Good afternoon. Matthew Campbell, 23 fromthe Office of the Attorney General on behalf of the 24 Department of Fish and Game. 25 // CAPITOL REPORTERS (916) 923-5447 916 1 ---oOo--- 2 DIRECT TESTIMONY OF SAN JOAQUIN RIVER GROUP 3 OF WILLIAM LOUDERMILK 4 BY MATTHEW CAMPBELL 5 MR. CAMPBELL: Please, state your name and spell your 6 last name. 7 THE WITNESS: My name is William Loudermilk, the last 8 name is L-O-U-D-E-R-M-I-L-K. 9 MR. CAMPBELL: Mr. Loudermilk, what is your 10 occupation? 11 DR. LOUDERMILK: I'm a senior biologist supervisor 12 for the Department of Fish and Game out of the Fresno 13 office spearheading the Anadromous Fish Restoration Program 14 in the San Joaquin Valley. 15 MR. CAMPBELL: How long have you been involved San 16 Joaquin basin fishery issues? 17 DR. LOUDERMILK: 16 years. 18 MR. CAMPBELL: Is DFG Exhibit 1, previously submitted 19 to the Board, an accurate statement of your qualifications? 20 DR. LOUDERMILK: Yes, it is. 21 MR. CAMPBELL: Do you have DFG Exhibit 13 in front of 22 you? 23 DR. LOUDERMILK: Yes. 24 MR. CAMPBELL: Is that an accurate reflection of the 25 testimony submitted to the Board on your behalf? CAPITOL REPORTERS (916) 923-5447 917 1 DR. LOUDERMILK: Yes. 2 MR. CAMPBELL: Do you have DFG Exhibits 14 through 21 3 in front of you? 4 DR. LOUDERMILK: I do. 5 MR. CAMPBELL: Did you and your staff prepare these 6 exhibits for the purposes of presenting them in these 7 proceedings? 8 DR. LOUDERMILK: We did. 9 MR. CAMPBELL: Are those accurate copies of those 10 exhibits? 11 DR. LOUDERMILK: Yes, they are. 12 MR. CAMPBELL: Bringing your attention back to DFG 13 Exhibit 13 could you briefly summarize your written 14 testimony? 15 DR. LOUDERMILK: Sure. I'm going to be very brief. 16 My colleagues that have been before you this morning have 17 done I think a very thorough job of describing the 18 technical details, the basis for the studies, the design, 19 and the logistics of the Vernalis Adaptive Management 20 Program. So what I'd like to do is go through very quickly 21 the four key points in DFG Exhibit 13. 22 I'd like to say that we support the proposed San 23 Joaquin River Agreement and particularly the Vernalis 24 Adaptive Management Program, the study that's been 25 described here as a means to help protect San Joaquin CAPITOL REPORTERS (916) 923-5447 918 1 basin -- River basin stocks while we jointly develop a 2 better scientific basis for long-term management decisions. 3 C.O. CAFFREY: Technical point here, Mr. Campbell, is 4 this an exhibit or is it a summary? 5 MR. CAMPBELL: It's a summary. 6 DR. LOUDERMILK: What I have done is pulled the key 7 wording out of DOG -- 8 C.O. CAFFREY: To be consistent with what we've doing 9 is we need to give it a number when we're through here and 10 ask you to provide copies to all the parties. 11 MR. CAMPBELL: I'd be happy to do so. 12 C.O. CAFFREY: Thank you. 13 DR. LOUDERMILK: Recognizing that we have one small 14 hatchery in the San Joaquin basin and Dr. Kjelson mentioned 15 earlier that we believe that the number of in-basin salmon 16 smolts that will be available -- that are available will 17 not be sufficient to meet the existing fishery studies' 18 requirements in the San Joaquin River basin and the 19 tributaries and for VAMP. This is particularly so in the 20 dryer years when our spawning escapements and hatchery 21 productions decline. We believe that the Vernalis Adaptive 22 Management studies in the Delta should be integrated with 23 existing required studies in the San Joaquin tributaries. 24 And they should be conducted concurrently. And that, in 25 essence, will enhance the power and the utility of the CAPITOL REPORTERS (916) 923-5447 919 1 respective study results both in the tributaries and in the 2 delta. 3 And, finally, successful implementation of the San 4 Joaquin River Agreement and the Vernalis Adaptive 5 Management Program will provide equivalent protection for 6 San Joaquin basin fall-run chinook for that provided in the 7 1995 Water Quality Control Plan. We believe that the 8 mechanisms, the processes provided for in the agreement 9 gives us an ample opportunity to work through some 10 challenging technical details and we are going to have to 11 adapt over time, but we're very supportive of the approach. 12 Thank you. 13 C.O. CAFFREY: Does that complete Mr. Loudermilk's 14 testimony, or is he -- 15 MR. CAMPBELL: Yes. And I might suggest that we call 16 the summary DFG Exhibit 13-A. 17 C.O. CAFFREY: 13-A. 18 MR. CAMPBELL: And we'll provide copies to the Board 19 and all parties. 20 C.O. CAFFREY: All right. Thank you, Mr. Campbell 21 and Mr. Loudermilk. 22 MR. O'LAUGHLIN: Mr. Caffrey, if you care to take a 23 small little break while we rearrange the furniture up 24 here, we're going to get the panel back up and get prepared 25 for the cross-examination? CAPITOL REPORTERS (916) 923-5447 920 1 C.O. CAFFREY: Is that going to take about, what, 2 five minutes? 3 MR. O'LAUGHLIN: Five minutes. 4 C.O. CAFFREY: Let's go off the record for about four 5 or five minutes -- actually, I suppose we could. Let's 6 take about a 12-minute break. We intend, as I announced 7 before, to conclude each day as close to 4:00 o'clock as we 8 can. That gives us a little time to get back to our 9 offices and do other things. So, let's take a 12-minute 10 break now. 11 (Recess taken from 2:05 p.m. to 2:17 p.m.) 12 C.O. CAFFREY: Welcome back everyone. We are back on 13 the record. And we are now at the point where we will 14 cross-examine the first group of witnesses as a panel. And 15 as we have been doing, let's try by a showing of hands, who 16 wishes to cross-examine these witnesses? 17 Mr. Jackson, Mr. Porgans. After I call your name 18 you can put your hands down. Mr. Suyeyasu, let's see, 19 Mr. Herrick. 20 MR. HERRICK: Will we be able to have both of us ask 21 him questions, Mr. Chairman? 22 C.O. CAFFREY: Actually, well -- go ahead, 23 Ms. Leidigh. 24 MS. LEIDIGH: I think the normal rule is that only 25 one person asks cross-examination questions for a party. CAPITOL REPORTERS (916) 923-5447 921 1 C.O. CAFFREY: That is my understanding as well. So 2 if you could, perhaps -- perhaps, you could confer. 3 There's nothing that says you can't confer before the 4 asking of the question. Ms. Leidigh? 5 MS. LEIDIGH: No, they can confer. 6 C.O. CAFFREY: So you, gentlemen, can confer before 7 asking the questions, but we need to hear from just one of 8 you. Would that be Mr. Herrick then or -- 9 MR. HILDEBRAND: That would be me. 10 C.O. CAFFREY: Mr. Hildebrand will be doing the 11 cross-examining. All right. Let's see, Mr. Jackson, did 12 you have your hand up -- no, I got you already. 13 Mr. Nomellini, who else? All right in this order I have 14 Mr. Jackson, Mr. Porgans, Mr. Suyeyasu, Mr. Hildebrand, and 15 Mr. Nomellini. Have we left anybody out? All right. Then 16 we will cross-examine in that order. 17 Please, be mindful, those of you who are not 18 attorneys, please, be mindful of the rules of 19 cross-examination. You are allowed to go beyond the scope 20 of the original testimony as long as it's reasonably 21 relevant. And there is I believe a 60-minute goal, target 22 goal for each party in their cross-examination. If you 23 need more time than that, we will allow it as long as you 24 are within the realm of relevancy. So, Mr. Jackson, good 25 afternoon, sir. And, please, begin. CAPITOL REPORTERS (916) 923-5447 922 1 MR. JACKSON: Thank you, Mr. Caffrey. 2 ---oOo--- 3 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP 4 BY REGIONAL COUNCIL OF RURAL COUNTIES 5 BY MICHAEL B. JACKSON 6 MR. JACKSON: Where to begin. Mr. Kjelson, is it 7 fair to say that the VAMP is a scientific test that could 8 be run without the San Joaquin tributary agreement? 9 MR. KJELSON: I suppose a test of that nature could 10 be run under a variety of alternative ways. 11 MR. JACKSON: Your testimony was that you believe 12 that the VAMP is an important scientific contribution to 13 the state of knowledge that presently exists in the Delta 14 in regard to salmon survival, did you not? 15 MR. KJELSON: Yes. 16 MR. JACKSON: And is there anything about the VAMP 17 that will provide us with further information on other 18 species in the San Joaquin River? 19 MR. KJELSON: I gather you're referring to the San 20 Joaquin River in the Delta proper? 21 MR. JACKSON: Yes, I am. 22 MR. KJELSON: Well, certainly, as scientists and for 23 monitoring and evaluations programs set up in the Delta, 24 the conditions that are afforded under the VAMP target 25 matrix of exports and inflow and the barrier, certainly, CAPITOL REPORTERS (916) 923-5447 923 1 opens the door to further understanding on other species. 2 MR. JACKSON: Is there anything in the VAMP proposal 3 that deals with the bottom of the food change, for 4 instance, chlorofillet, or phytoplankton? 5 MR. KJELSON: Not directly. 6 MR. JACKSON: And those are important elements for 7 survival of species within the Delta, are they not? 8 MR. KJELSON: Certainly, all aquatic organs have to 9 feed. 10 MR. JACKSON: All right. Is there -- are there 11 variables in regard to environmental health in the lower 12 San Joaquin and the Delta that are not included in the VAMP 13 study, for instance, temperature in the Stockton ship 14 channel, for instance? 15 MR. KJELSON: I'm not familiar with the exact 16 locations of our temperature recorders, but possibly 17 Dr. Hanson could comment on that. 18 MR. JACKSON: Dr. Hanson, do you have -- do you have 19 part of your program to judge temperature changes based 20 upon flows in the Stockton ship channel, for instance? 21 DR. HANSON: We do. We have temperature recorders. 22 As I mentioned in my testimony, there are 13 currently 23 deployed. They record temperature at 24-minute intervals 24 from Mossdale to Chipps Island. There are three between 25 Mossdale, Dos Reis, the middle reach of the lower San CAPITOL REPORTERS (916) 923-5447 924 1 Joaquin, the confluence between the San Joaquin River and 2 the Stockton ship channel, and then at longitudinal 3 locations from there down stream. 4 MR. JACKSON: And at any time that the temperature 5 reaches above 68 degrees the year's experiment is over; is 6 that right? 7 DR. HANSON: The data from those temperature 8 recorders will be downloaded after the tests are completed. 9 The technical committee will, then, be provided with all of 10 the information that was collected including all of the 11 temperature data. And assessments will be made as to what 12 kinds of factors may have been influenced the validity of 13 any given test. 14 The 68-degree temperature threshold that we 15 included as part of the VAMP was intended to avoid a 16 situation where fish are reared in the hatchery and then 17 released at a location, such as Mossdale, during a period 18 when we know teh temperature is going to be an adverse 19 affect. 20 MR. JACKSON: So you wouldn't do that? 21 DR. HANSON: We would not purposely do that. 22 MR. JACKSON: Because it would skew the results of 23 your 14-year study? 24 DR. HANSON: It would not only skew, it would 25 compound our interpretation as a variable that is not CAPITOL REPORTERS (916) 923-5447 925 1 included as part of the specific objective of what we're 2 trying to study. And it would very likely result in some 3 mortality to the fish that are released and we're trying to 4 avoid that. 5 MR. JACKSON: All right. Goind back from 14 years, 6 say from today, there were three years, is it true, that 7 the temperature would have been exceeded over the last 14 8 years? 9 DR. HANSON: I have not looked recently at the 10 frequency of those temperatures. But under a number of 11 years there have been temperatures when Fish and Wildlife 12 studies were underway when temperatures were above the 13 68-degree temperature. 14 MR. JACKSON: Okay. 15 DR. HANSON: I don't know what the frequency is right 16 now. 17 MR. JACKSON: I believe, Ms. Brandes or Mr. Kjelson, 18 you both refer to that in your testimony? 19 MR. KJELSON: You're referring to our exhibit 20 Delta -- Department of the Interior 2-F where we've given a 21 summary of the temperature -- water temperatures are at 22 Mossdale. And that is correct. I believe as you stated a 23 few of the years it did exceed -- at least exceeded 68 24 degrees. 25 MR. JACKSON: All right. And that would have a CAPITOL REPORTERS (916) 923-5447 926 1 practical affect of causing so many variables in your test 2 results that you probably would need another year on the 3 program in order to reach a full evaluation; is that right, 4 sir? 5 MR. KJELSON: I thought you were addressing it to 6 Dr. Hanson. Well, that is correct. 7 MR. JACKSON: Once you get started. 8 MR. KJELSON: That is correct. There may be some 9 years, as I stated in my testimony -- written testimony 10 that temperature would delay our gathering of the data. 11 MR. JACKSON: And so the study could be longer than 12 the 14 years that its scheduled? 13 MR. KJELSON: I believe the schedule is actually 12 14 years. 15 MR. JACKSON: 12 years. 16 MR. KJELSON: Yes, it could be longer, or for that 17 matter it could be shorter. 18 MR. JACKSON: How could it be shorter, sir? 19 MR. KJELSON: Well, as I infer in both my oral and 20 written testimony, I believe personally there are some data 21 gaps where our data is very critical to get as soon as 22 possible. Now, there's no question that the more data we 23 have the more reliable our conclusions can be as to 24 separating and identifying the affects of flow and export 25 and use of the head of Old River barrier have on survival. CAPITOL REPORTERS (916) 923-5447 927 1 MR. JACKSON: Are you indicating, then, that if you 2 close these critical data gaps the program would be over? 3 MR. KJELSON: No, I'm not indicating that. That 4 would be a combined decision of the technical committee 5 with a variety of scientists and not a single individual 6 would make that determination. 7 MR. JACKSON: What are the data gaps that you believe 8 to be critical? 9 MR. KJELSON: I believe, as I stated, there is 10 definitely some key data gaps up in the area where we have 11 7,000 inflow and the two export limitations of 1500 and 12 3,000 where we do not have any data. 13 MR. JACKSON: All right. And how many years do you 14 need of 7,000 inflow and 1500 and 3,000 exports before you 15 will feel that you have the information to consider those 16 data gaps closed? 17 MR. KJELSON: I don't know if I can give a single 18 answer to that question. I think it would depend upon what 19 other data we have and how the years go. But Dr. Baker may 20 have some comments he'd like to make relative to our 21 analysis procedure to supplement my answer. 22 MR. JACKSON: Dr. Baker didn't testify. Okay. So 23 you don't know what -- how much data would be needed to 24 close these gaps that you're talking about? 25 MR. KJELSON: No, I do not. CAPITOL REPORTERS (916) 923-5447 928 1 MR. JACKSON: All right. The second question about 2 the VAMP study, and we'll get to the equivalency and the 3 protection flows and all of that in a moment, but just 4 addressing the scientific study and not the agreement, but 5 the VAMP. 6 MR. KJELSON: Okay. 7 MR. JACKSON: The -- if you have flow, a flow 8 sufficient to keep you from putting the head of the Old 9 River barrier in, is that another year in which the data 10 will not be comparable to the data that you have as part of 11 the program? 12 MR. KJELSON: Well, as I think Dr. Herbold and 13 Dr. Hanson said, we have a contingency plan where in those 14 higher flow years we will continue to collect survival data 15 to the best of our ability. There are some complications, 16 of course, with extremely high flows. But we will collect 17 the data, utilize that to make the best determination we 18 can as to how it might supplement the data we might get 19 under purely VAMP conditions. We, certainly, would not 20 want to throw that data out, because it could have 21 significant importance to our overall understanding of the 22 questions we're asking. 23 MR. JACKSON: Is it fair to say that you agree with 24 Ms. Brandes that flow at Stockton correlates -- higher 25 flows correlate with better smolt survival? CAPITOL REPORTERS (916) 923-5447 929 1 MR. KJELSON: Yes. 2 MR. JACKSON: Now, in that regard you heard 3 Dr. Morfer (sic) testify that he did not believe that was 4 the case, did you not? 5 MR. KJELSON: I heard Dr. Morhardt's testimony, he 6 can speak for himself, but he was basing it on survival 7 indices based on historical data that he was working on. 8 MR. JACKSON: All right. And this is just a 9 disagreement between scientists looking at the same data? 10 MR. KJELSON: I wouldn't even go to say it's a 11 disagreement. Ms. Brandes also provided a figure -- she 12 may correct me if she'd like, that was very similar to 13 Dr. Morhardt's earlier equation where she showed the 14 potential relationship of survival indices and flow and 15 found that there wasn't a strong relationship utilizing 16 indices. 17 MR. JACKSON: All right. Ms. Brandes, could you 18 compare your understanding of Dr. Morhardt's testimony with 19 what you testified to here today? What are the differences 20 between your testimony? 21 MS. BRANDES: Well, one of the main differences is 22 that in the testimony I presented I used an absolute 23 estimate of smolt survival and that controls for some of 24 the noise that's in the data. Whereas Dr. Morhardt was 25 using survival indices. CAPITOL REPORTERS (916) 923-5447 930 1 MR. JACKSON: And it's just another step; is that 2 right, in the same analysis? 3 MS. BRANDES: Well, it's looking at the data a little 4 bit differently. By using the controls it factors out some 5 of the variability that you'll get in the data due to gear 6 efficiency and things. And by using this ratio approach 7 that I used in estimating absolute smolt survival it took 8 some of that bias out and made the relationship cleaner. 9 MR. JACKSON: Do you, after hearing the testimony of 10 the assembled experts, still believe that your data and 11 your scientific investigation support your conclusion that 12 there is a statistically significant corollary between flow 13 at Stockton and smolt survival in the San Joaquin for 14 chinook salmon? 15 MS. BRANDES: Yes. 16 MR. JACKSON: Now, did you do a comparison of the 17 Water Quality Control Plan and the proposed flows during 18 the pulse-flow period from April 15th to May 15th that the 19 VAMP will be operating? Did you do a comparison of Water 20 Quality Control Plan flows and VAMP flows? 21 MS. BRANDES: I have in the past, but not recently. 22 And I don't remember what I found when I was looking at 23 those. 24 MR. JACKSON: Did anyone else here do a comparison of 25 the VAMP flows with the Water Quality Control Plan flows CAPITOL REPORTERS (916) 923-5447 931 1 simply on volume of water? Mr. -- Dr. Herbold, you did? 2 DR. HERBOLD: Yes, I did. 3 MR. JACKSON: Anyone else? Dr. Kjelson? 4 MR. KJELSON: As I testified, I did a comparison of 5 very raw unstandardized flow. As you know VAMP is not done 6 on a water-year basis whereas the Water Quality Control 7 Plan is. 8 MR. JACKSON: Yes. 9 MR. KJELSON: I did a very general one, as reflected 10 in my testimony. 11 MR. JACKSON: And as amended with the later language, 12 you still find that the raw flows are less for the VAMP 13 than they are for the Water Quality Control Plan? 14 MR. KJELSON: I don't -- I don't think I said it that 15 way. I said that there are certain situations where the 16 VAMP flows were slightly lower, but I think as Dr. Herbold 17 said, in some years they're greater. I simply looked at 18 the Water Quality Control Plan flows compared them in a raw 19 sense and I believe there's two water-year conditions where 20 they're -- there's overlap as you know. 21 MR. JACKSON: Yes. 22 MR. KJELSON: There is a range in the Water Quality 23 Control Plan and the VAMP has one flow. And there were a 24 few times where the VAMP was lower than the Water Quality 25 Control Plan. CAPITOL REPORTERS (916) 923-5447 932 1 MR. JACKSON: All right. 2 MR. KJELSON: Dr. Herbold can speak to that I think 3 in a broader sense. 4 MR. JACKSON: Dr. Herbold, I don't want to cut you 5 off, if there's something to speak to in that regard? 6 DR. HERBOLD: I'd be happy to answer any question. 7 MR. JACKSON: All right. Mr. Kjelson, you indicated 8 that you believe this should be an adaptive management kind 9 of plan; is that right? 10 MR. KJELSON: Yes, I did. 11 MR. JACKSON: Are you indicating that these flows can 12 change during this 12-year period based upon what you find 13 out? 14 MR. KJELSON: That's basically what I suggested. The 15 agreement allows for that to be considered. And my point I 16 that made in my testimony is that we want to strive to gain 17 the most critical data as quickly as possible and fill in 18 the critical data gaps. 19 MR. JACKSON: And that would simply be the critical 20 data gaps that you identified earlier, 7,000 cubic feet 21 inflow and 1500 and 3,000 export? 22 MR. KJELSON: Well, I identified that as an example, 23 but as VAMP is implemented, as we go from year-to-year, we 24 may find some other adjustments. And that's what we would 25 need to consider. As my statement indicated we want to get CAPITOL REPORTERS (916) 923-5447 933 1 the best data as soon as possible and not have an 2 inefficient study. And I think we have the support of all 3 the technical people in that regard. 4 MR. JACKSON: And it's your understanding that when 5 this -- that the program is 12-years long, but if you find 6 critical data during the program, that the program will be 7 altered to fit the data, or -- 8 MR. KJELSON: Data needs. 9 MR. JACKSON: -- the protection will be altered to 10 fit the data, which is it? 11 MR. KJELSON: I'd like you to repeat your statement. 12 I'm not sure what you meant. 13 C.O. CAFFREY: I'm sure you meant question, I don't 14 believe he's yet to be testifying. 15 MR. JACKSON: You have a -- you have a program, the 16 VAMP scientific program. And then you have some flows that 17 are within that program that are to provide the protection 18 for the chinook salmon during the time of your program, 19 correct? 20 MR. KJELSON: That's right, equivalent to the plan. 21 MR. JACKSON: If the United States Fish and Wildlife 22 Service determines during the VAMP program that the science 23 indicates that the flows are not protective enough, can you 24 increase the flows, or I guess decrease them if it 25 indicates that flow harms fish during the life of the CAPITOL REPORTERS (916) 923-5447 934 1 program? 2 MR. KJELSON: Well, I think it'stwo answers. One, 3 the Service would likely utilize the triennial review 4 process to make potential recommendations such as you're 5 inferring. But, secondly, I think that we would use the 6 San Joaquin River technical committee to discuss what flow, 7 or export changes might be needed that would provide more 8 efficient implementation of that. 9 MR. JACKSON: But in your -- in your understanding 10 the Service is not agreeing to the protective flows within 11 the VAMP as presently designed if, in fact, you find 12 information that these fish are being endangered or 13 threatened by these flows? 14 MR. KJELSON: I don't think I can make that 15 statement. It's a -- it's a too comprehensive, or 16 complicated policy issue. 17 MR. JACKSON: All right. So there's a possibility 18 that by agreeing to this agreement you've given away 19 enforcement power over the chinook salmon? 20 MR. BRANDT: I object. It sounds like a policy 21 question. Outside the scope of an expert who's a 22 biologist. 23 MR. JACKSON: I'm just asking how the program works. 24 MR. BRANDT: Okay. My objection stands. 25 C.O. CAFFREY: It also sounds like you're asking for CAPITOL REPORTERS (916) 923-5447 935 1 possibly a legal conclusion and I don't believe Mr. Kjelson 2 is an attorney. 3 MR. O'LAUGHLIN: I'd object on that ground. 4 C.O. CAFFREY: I'm going to sustain the objection. 5 Why don't you try it, again, Mr. Jackson, or try something 6 else? 7 MR. JACKSON: Maybe I'll get the wrong person and 8 maybe I'll just need to wait for somebody high ranking. 9 What -- you've indicated that in your -- where did 10 the word "equivalency" come from? Is that out of the 11 Endangered Species Act? 12 MR. KJELSON: I don't know. Maybe someone else can 13 define it. My understanding of equivalency is simply in 14 the context of what we're talking about. VAMP study 15 conditions were equivalent to those of the Bay-Delta Water 16 Quality Control Plan relative to the flow and export 17 condition. 18 MR. JACKSON: Well, now, let's look at that. That's 19 2-G, right? That was your analysis as amended today? 20 MR. KJELSON: Yes. 21 MR. JACKSON: All right. We've talked about the flow 22 and you've clarified, a little, that in some cases the 23 target flows are lower than the '95 Water Quality Control 24 Plan, right? 25 MR. KJELSON: Yes. CAPITOL REPORTERS (916) 923-5447 936 1 MR. JACKSON: Now, you've indicated that one of the 2 things that you used to judge equivalency with the 3 Bay-Delta Water Quality Control Plan is the head of Old 4 River barrier; is that correct? 5 MR. KJELSON: That's correct. 6 MR. JACKSON: Now, has the United States Fish and 7 Wildlife Service approved the head of Old River barrier? 8 MR. KJELSON: Well, I think it's in a legal context, 9 if that's where you're going, I don't believe they've 10 approved it relative to the Endangered Species Act. This 11 is a complicated issue that I'm not close to. It's a part 12 of the Central Valley Project Improvement Act. Part of the 13 elements of that in that context it's -- I would say it was 14 approved, but I don't feel qualified to speak to your 15 question in more complicated policy aspects of, for 16 example, the Endangered Species Act. 17 MR. JACKSON: Let me step back, then, and see what we 18 can agree on. Are you aware of any United States Fish and 19 Wildlife Service documents that have indicated that they 20 believe that the head of Old River barrier could have 21 potential environmental affects on the Delta smelt? 22 MR. KJELSON: I'm not familiar what exact document 23 would say that. But, certainly, I think we're all 24 well-aware of -- that the operation of the barrier 25 considering a lot of other aspects has the potential to CAPITOL REPORTERS (916) 923-5447 937 1 have detriment. And I think we've discussed that in a 2 number of forums. 3 MR. JACKSON: All right. Dr. Herbold, are you aware 4 of any problems caused in terms of water quality with the 5 building of the Old River barrier on the other side of the 6 barrier, or the Old River side of the barrier? 7 DR. HERBOLD: I've heard people make concerns about 8 that, but not so much water quality. Often I hear the 9 concern of water level. 10 MR. JACKSON: Have you also heard concerns about 11 the -- about the affect of the barrier on the Delta smelt? 12 DR. HERBOLD: I have been in conversations on that. 13 MR. JACKSON: And what are those concerns, sir? 14 DR. HERBOLD: That if Delta smelt do spawn in the 15 south Delta there's some concern that the presence of the 16 head of Old River barrier and the ag barriers may prevent 17 them from being moved out to Suisun Bay and there are 18 better rearing habitats. Those are the concerns that I've 19 heard. 20 MR. JACKSON: The concerns are that the barrier 21 improves conditions? 22 DR. HERBOLD: For Delta smelt the concerns are, 23 generally, the barrier may not allow flows to carry fish 24 out of the South Delta. 25 MR. JACKSON: All right. Thank you. So there is CAPITOL REPORTERS (916) 923-5447 938 1 some potential that the head of Old River barrier will have 2 environmental affects on listed species below the barrier? 3 DR. HERBOLD: I've heard those concerns. 4 MR. JACKSON: All right. And is there an 5 environmental document going on about those? 6 DR. HERBOLD: As I stated in my testimony, we were 7 working with the assumption that the barrier would be there 8 because the Service through it's Endangered Species Office 9 had issued a permit to construct that barrier which was 10 good for five years. Whether that would be renewed or not, 11 I don't know, but that was certainly built into the design 12 of the experiment. 13 MR. JACKSON: And if the head of Old River barrier 14 were not built, would the -- would that change the 15 equivalency analysis, Dr. Kjelson? 16 MR. KJELSON: I -- I don't -- I don't really know. 17 The main change that would occur without the head of Old 18 River barrier would be less flow down past Stockton, more 19 flow towards the export facilities. But, then, again, VAMP 20 includes the head of Old River barrier, so is it somewhat 21 of a hypothetical question? 22 MR. JACKSON: I don't know. If the VAMP -- if the 23 head of Old River barrier were to cause significant 24 environmental affects, would that end the VAMP program in 25 your opinion? CAPITOL REPORTERS (916) 923-5447 939 1 MR. KJELSON: I'm sorry, would you repeat the 2 question? 3 MR. JACKSON: Well, if it turns out that the building 4 of the -- I mean one of the things that you have in this 5 2-G is that you point out that the 19 -- the '95 Water 6 Quality Control Plan does not require the head of Old River 7 barrier. And that the VAMP does. And that you list as one 8 of your reasons for finding the VAMP to be equivalent to 9 the Water Quality Control Plan. 10 MR. KJELSON: Yes, I still agree. If you take it 11 out, as stated I think in the agreement, that it would not 12 be considered a VAMP -- VAMP year if you had no head of Old 13 River barrier. 14 MR. JACKSON: All right. So that the program could 15 go on, then, substantially longer during the period of time 16 that the Old River barrier was out for either environmental 17 or engineering reasons? 18 MR. KJELSON: Of course. 19 MR. JACKSON: Okay. Now, the Old River barrier could 20 be built either with or without VAMP, could it not? 21 MR. KJELSON: Sure, in a situation it could be built 22 without VAMP. 23 MR. JACKSON: It doesn't depend on VAMP? 24 MR. KJELSON: No. 25 MR. JACKSON: The -- the VAMP could operate with the CAPITOL REPORTERS (916) 923-5447 940 1 slightly higher Water Quality Control Plan flows, could it 2 not? 3 MR. KJELSON: I don't think that's a question I can 4 answer. There are a considerable number of parties that 5 were -- designed the VAMP, and I'm not one to answer that 6 question. 7 MR. JACKSON: But I'm -- Dr. Hanson, is there 8 anything that would -- that would keep you from operating 9 the VAMP program consistent with the Water Quality Control 10 Plan flows? 11 DR. HANSON: Constraint within VAMP in terms of the 12 higher end of the flow range that we have looked at is 13 based on the operational performance of the head of Old 14 River barrier. To the extent that flows exist within the 15 lower San Joaquin River within the range of the operational 16 performance of the head of Old River barrier, then, they 17 were considered part of our evaluation of what would be 18 appropriate for this experimental design. Anything below 19 7500 was considered, whether it was part of the Water 20 Quality Plan or not. 21 MR. JACKSON: All right. So the benefit of the VAMP 22 is to keep the amount of water -- is to allow you to try to 23 keep the amount of water that flows down the San Joaquin 24 River within the 7,000 window? 25 DR. HANSON: No. To the extent that flows would be CAPITOL REPORTERS (916) 923-5447 941 1 higher than 7,000, or 7500 those flows would occur in the 2 lower San Joaquin River, as was pointed out in one of the 3 earlier charts, simply the head of Old River barrier would 4 not be installed under those conditions. 5 MR. JACKSON: And there would be no attempt to drop 6 the flow from the controlling facilities at New Melones, or 7 elsewhere on the tributaries in order to keep it within the 8 ability to put the barrier in, is that what you're telling 9 me? 10 DR. HANSON: I have not been party to any discussions 11 where flows would be held down. 12 MR. JACKSON: Right. 13 DR. HANSON: Our primary discussions have been the 14 ability to manage and maintain flows within the matrix 15 that's been presented. 16 MR. JACKSON: But if higher flows are beneficial to 17 fish -- do you agree with the idea that higher flows at 18 Stockton are beneficial to smolts? 19 DR. HANSON: I basically do, yes. 20 MR. JACKSON: All right. And if, in fact, that's the 21 case, you certainly wouldn't want to manipulate the river 22 to meet the flow schedule because that would be 23 disadvantageous to the fish? 24 DR. HANSON: Under that scenario it would be. And 25 there would be a variety of parties that would be CAPITOL REPORTERS (916) 923-5447 942 1 participants in the technical discussions that occur 2 starting in about January of every year to monitor the 3 flows that are anticipated to occur, to monitor the runoff, 4 the snowpack, all those other parameters that are used each 5 year to try and develop through the adaptive management 6 approach the flows and the experimental conditions that 7 would be tested in the subsequent spring. So a variety of 8 people would be party to those discusses. 9 MR. JACKSON: Again, Mr. Kjelson, you indicate in 10 your equivalency document, 2-G, that one of the -- you 11 point out that the '95 Water Quality Control Plan is -- the 12 flows, I guess, are above the export inflow -- the '95 13 Water Quality Control Plan is above the export/inflow ratio 14 of 35 percent. How do you come to that conclusion? 15 MR. KJELSON: Well, that's one of reasons -- one of 16 the reasons I modified that, is to be a little clearer. I 17 didn't want to mislead people. So I think you're speaking 18 to my original 2-G Exhibit? 19 MR. JACKSON: Yes, sir, that's all I have. 20 MR. KJELSON: In the '95 -- as I stated -- 21 MR. JACKSON: So you made more than one change in 22 2-G? You made the change on flow and now you've made some 23 change on export? 24 MR. KJELSON: Yes. I took out the discussion of 35 25 percent, I think, because it may have been confusing to the CAPITOL REPORTERS (916) 923-5447 943 1 reader, but I will clarify it for you based on the question 2 you asked. 3 What I had earlier was the '95 Water Quality 4 Control Plan. There was a typo there. What I meant to say 5 is an export/inflow ratio of 35 percent, that's Delta wide. 6 And I think you're familiar with that, during the month of 7 April and May and a few other months. 8 MR. JACKSON: Yes, sir. 9 MR. KJELSON: But when the VAMP target conditions are 10 implemented that brings, generally based on my experience 11 in the few years at looking at this, the total E/I ratio 12 down below 35 percent in many years, depending, of course, 13 on what the inflow was. But in recent years it's 14 considerably less than 35 percent. 15 MR. JACKSON: And what caused the -- the Water 16 Quality Control Plan flows, then, are not above the ratio 17 of 35 percent for those months? 18 MR. KJELSON: That's correct. 19 MR. JACKSON: All right. 20 MR. KJELSON: That's part of the plan that they stay 21 below -- equal or below 35 percent. 22 MR. JACKSON: So that's not a -- so another words, 23 then, the Water Quality Control Plan and the VAMP are both 24 below 35 percent? 25 MR. KJELSON: Yes. CAPITOL REPORTERS (916) 923-5447 944 1 MR. JACKSON: Thank you. Now, that we've got them 2 both below the 35 percent, what is the quantitative 3 difference between the two in terms of percentage? 4 MR. KJELSON: Well, it dep a great deal on what the 5 inflow and export conditions are. And looking at the 6 target export and inflows for VAMP it's much -- it's easy, 7 fairly easy to calculate that. But when you look at the 8 Water Quality Control Plan in a more general sense with -- 9 if I'm understanding correctly, without VAMP, that 35 10 percent is difficult to estimate, because each year, of 11 course, the inflow will be different and the export 12 potentially could be different. 13 And that's why I tried to clarify that, because in 14 my modified Exhibit 2-G I think the real issue deals with 15 the ratio of Vernalis inflow to export. What I call the, 16 I/E ratio, which I think Dr. Herbold mentioned. As part of 17 the endangered species requirements that ratio needed to be 18 always greater than two to one. VAMP does meet that 19 characteristic; whereas, the Water Quality Control Plan 20 would only yield a ratio of one-to-one. 21 MR. JACKSON: Now, let's talk about that. The Water 22 Quality Control Plan ratio of one-to-one is not the only 23 rule, is it not? Doesn't the Delta smelt biological 24 opinion require a two-to-one ratio during that time period 25 as well? CAPITOL REPORTERS (916) 923-5447 945 1 MR. KJELSON: In general. My colleagues in the 2 service wouldn't state it so simply, but that's generally 3 correct. 4 MR. JACKSON: I'm a lawyer, we're pretty simple. But 5 basically the situation is that the inflow/export 6 relationships of both the Water Quality Control Plan 7 attached to the Delta smelt biological opinion result in 8 the present condition during that period of time being that 9 the inflow is -- the inflow to export ratio is two to one? 10 MR. KJELSON: At least two to one. 11 MR. JACKSON: And that's just about the same as what 12 you showed us -- or what we were shown on the VAMP program, 13 that the minimum was 2.1? 14 MR. KJELSON: That's right. 15 MR. JACKSON: So I mean there is no advantage to the 16 VAMP over the combination of the Water Quality Control Plan 17 and the Delta smelt biological opinion, is there? 18 MR. SCHULZ: I object to the extent you're asking the 19 witness for a legal conclusion. 20 C.O. CAFFREY: I'm sorry, Mr. Schulz. I can't hear 21 you. 22 MR. SCHULZ: I object to the question to the extent 23 he's asking the witness for a legal conclusion as to what 24 is required by the biological opinion. This happens to be 25 a matter of some dispute among a number of people as to CAPITOL REPORTERS (916) 923-5447 946 1 what the proper interpretation of that document is. 2 MEMBER BROWN: Well, I don't think it was that. 3 Could you read the question back? 4 C.O. CAFFREY: Could we have the Stenographer read 5 the question back again, or would you like to restate it, 6 Mr. Jackson? 7 MR. JACKSON: I would rather have the Stenographer 8 read it back, if I can get away with that. I can never 9 do it the same way again. 10 (Whereupon the question was readback by the Reporter.) 11 C.O. CAFFREY: Okay. 12 MR. SCHULZ: My position was within the word 13 "advantage" he was saying that the biological opinion would 14 require a two-to-one by itself. And, therefore, there's no 15 advantage. And the requirements of the biological opinion 16 I think constitute a legal conclusion. 17 C.O. CAFFREY: I'm going to sustain the objection. 18 It's a difficult question to answer probably even for a 19 lawyer and requires a legal conclusion. And Mr. Kjelson is 20 not a lawyer. 21 MR. JACKSON: Let me try it a different way, then, so 22 I can keep the law completely out of it. The flows that -- 23 excuse me. 24 The E/I ratio, the export/inflow ratio of 25 two-to-one is one that the United States Fish and Wildlife CAPITOL REPORTERS (916) 923-5447 947 1 Service tries to meet in the absence of the VAMP, do they 2 not? 3 MR. KJELSON: It's actually the I/E ratio, but you're 4 correct. 5 MR. JACKSON: Right. I'm sorry. In your testimony 6 it says, "E/I." I always heard it as I/E before so -- 7 MR. KJELSON: Well, that's one of the reasons I 8 corrected this, because you use E/I for the 35-percent 9 reference. And you use I/E for the inflow to export 10 relationship relative to the VAMP inflow. 11 MR. JACKSON: All right. But in any event, 12 practically you are operating to meet the same standard at 13 the same time, two-to-one? 14 MR. KJELSON: Yes. I think where you're going, if I 15 understand you, sir, is what you're saying is that the 16 biological opinion needs to be met and the Water Quality 17 Control Plan needs to be met and in combination are 18 probably quite equivalent to VAMP. 19 MR. JACKSON: All right. So in regard to export, 20 they're equivalent if you take into account the biological 21 opinion on the Delta smelt. In regard to the flow with the 22 amendment that you talked about in your 2-G, there are 23 certain times in which the flow is lower under VAMP than it 24 would be without it. Correct? 25 MR. KJELSON: Yes. CAPITOL REPORTERS (916) 923-5447 948 1 MR. JACKSON: And the head of Old River barrier could 2 be built either way, with the VAMP or without -- with the 3 VAMP flows or with the Water Quality Control Plan flows? 4 MR. KJELSON: Right. Certainly, that's possible. 5 MR. JACKSON: Thank you. Now, there was one more. 6 Mr. Herbold, did you do any equivalency analysis of your 7 own? 8 DR. HERBOLD: Yes, I did. 9 MR. JACKSON: And it's not in your testimony? 10 DR. HERBOLD: That is correct. 11 MR. JACKSON: In your testimony you indicate that you 12 led the effort to rewrite the VAMP study plan now known as 13 Appendix A; is that correct? 14 DR. HERBOLD: For the design portion of it, that's 15 correct. 16 MR. JACKSON: All right. Is there any reason that 17 you could not have designed a scientific program to 18 determine the affects of flow and export, to separate them 19 as we've talked about while using the present Water Quality 20 Control Plan numbers? 21 DR. HERBOLD: Yes. There were several reasons that I 22 didn't try to design that. One which I covered in 23 testimony. There were -- let's see, there were three 24 things that really caused me not to use the flows in the 25 Water Quality Control Plan, or conditions in the Water CAPITOL REPORTERS (916) 923-5447 949 1 Quality Control Plan in trying to answer those questions. 2 First and foremost is a requirement under either 3 the biological opinion or the Water Quality Control Plan 4 that the exports be a function of flow. That is either 5 they be one-to-one or two-to-one. And by compounding the 6 variables like that, it is hopeless to try to separate out 7 is a change in salmon survival the result of flow, or is it 8 the result of export changes? 9 So it was necessary to construct a structure that 10 separated out, and as I described in the testimony, the 11 flows constant to the varied exports, and held exports 12 constant to the varied flows. You could not get the answer 13 from the design of the Water Quality Control Plan. 14 Then, under wet years, under the Water Quality 15 Control Plan, it calls for flows of 8650 cubic feet per 16 second at Vernalis. And so those would be conditions under 17 which the VAMP couldn't operate. So I didn't try to 18 address that, that flow target that's in the Water Quality 19 Control Plan. 20 MR. JACKSON: So basically, the -- a flow of 8600, 21 which would be required in wet years for the Water Quality 22 Control Plan, is a flow which would be reduced under the 23 VAMP to get it within the 7,000 -- 24 DR. HERBOLD: No. If the base flow is higher than 25 you could put the barrier in, then it simply wasn't part of CAPITOL REPORTERS (916) 923-5447 950 1 the VAMP. It was part of the head of the Old River barrier 2 part of the study. The contingency no-barrier study that I 3 referred to. 4 MR. JACKSON: Why, then, would the 8600 csf in the 5 Water Quality Control Plan, since you're going to be 6 drawing down that number to get within that 7,000, why was 7 that a problem? 8 DR. HERBOLD: If that baseline flow was up there -- 9 well, there were -- my, we've had a lot of discussions in 10 getting to the point where we're at today. Since that flow 11 was outside the range that the VAMP could look at, because 12 the VAMP was assuming the presence of the head of Old River 13 barrier, I didn't really look at that. It was not part of 14 trying to set flow targets. 15 That was part of why I did an equivalency analysis 16 at the end to see if we were still equivalent with the head 17 of Old River barrier, because of questions like that. And 18 purely from a standpoint, as Dr. Kjelson looked at, you 19 can't compare it year-by-year, because one categorizes the 20 years by year type; and the other one categorizes them by 21 baseline flows. 22 But on average, in each of the year types the VAMP 23 provided equivalent flows. There were years when it was 24 slightly above and years when it was slightly below. And 25 some of that occurred in wet years as well where the CAPITOL REPORTERS (916) 923-5447 951 1 baseline flow was either higher or lower than what was 2 targeted in the -- I'm sorry, where the targets in the VAMP 3 were higher or lower than those in the Water Quality 4 Control Plan. But on average, in each of the year types 5 where VAMP was applying, the flows were equivalent. So 6 I -- yeah, period. 7 MR. JACKSON: Okay. I'm now going to go through the 8 testimony individually. I'll start with Mr. Kjelson. 9 Mr. Kjelson, you say in your testimony, which is I 10 believe government -- the Interior's Number 2, in clause 11 eight -- if you have it in front of you, the third 12 sentence, 13 (Reading): 14 "We must, however, do everything possible to 15 shorten the time needed to determine the 16 respective roles of flow and export on 17 survival so as to allow future management 18 decisions to result in a more effective and 19 improved salmon protection." 20 What do you mean by that, sir? Why do we need to 21 shorten the time? 22 MR. KJELSON: Well, I think basically that salmon 23 protection in the San Joaquin basin is limited, at best. 24 And based on a variety of restoration plans by my own 25 department, Department of the Interior and the California CAPITOL REPORTERS (916) 923-5447 952 1 Department of Fish and Game, we would like to see improved 2 salmon production. And there's a number of pools, 3 including the Bay-Delta plan itself, to double natural 4 production of salmon in the drainage, including the 5 Anadromous Fish Restoration Program, or the CVPIA. And I 6 believe as soon as we can get better data on the 7 relationship between flow and export, the better chance we 8 will have in making decisions to improve that production. 9 MR. JACKSON: And the sooner the better? 10 MR. KJELSON: Yeah. 11 MR. JACKSON: For the fish? 12 MR. KJELSON: Yeah. 13 MR. JACKSON: All right. Now, what part of the VAMP, 14 do you believe, will double the natural production in the 15 San Joaquin drainage? What part of the program is designed 16 to do that? 17 MR. KJELSON: Well, I think that's part of the 18 comments I've made earlier in my testimony, that we need 19 that information that is designed to be gained by the VAMP 20 program so that we have better information so a decision -- 21 a better -- a management decision can be made to assure 22 that this production goal is met, if that's what you're 23 referring to? 24 MR. JACKSON: Yes. We did indicate earlier, I 25 thought, that this kind of program could be run with the CAPITOL REPORTERS (916) 923-5447 953 1 water quality flows as well as with the VAMP flows, right? 2 I mean you could study the relationship of flow and export 3 with the -- with the water quality flows -- 4 MR. KJELSON: Well, in a pure sense maybe the water 5 quality flows, but it's not my understanding that the Water 6 Quality Control Plan, in and of itself -- well, I guess it 7 could be designed in that way. The fact of the matter is 8 it was not designed in that way. And VAMP provided a solid 9 scientific framework with agreement put forth to set those 10 conditions so that the study can occur. 11 MR. JACKSON: All right. So it's fair to say that 12 VAMP was not designed to meet the narrative standard of 13 doubling by year 2002? 14 MR. KJELSON: Well, that's a stated objective of 15 VAMP. But as I've inferred, and possibly Mr. Brandt did 16 earlier and possibly Dr. Hanson, we don't know at this time 17 if the doubling goal is being met. We rather doubt that. 18 The way the objective is stated is that in combination with 19 the VAMP and other restoration actions upstream, many of 20 which have not been implemented at this time, my 21 professional opinion is that doubling goal has not been 22 met. And it takes more information and future restoration 23 actions, both up river and in the Delta, to ensure that's 24 being met. 25 MR. JACKSON: Did you do any evaluation of how the CAPITOL REPORTERS (916) 923-5447 954 1 VAMP tributary flows and the timing of those flows related 2 to the Anadromous Fish Restoration Plan's suggested flows 3 to double fish on the San Joaquin? 4 MR. KJELSON: No, I didn't do a direct evaluation 5 myself. 6 MR. JACKSON: Are the VAMP flows as high as the 7 Anadromous Fish Restoration Plan flows? 8 MR. KJELSON: Well, you ask a complicated question. 9 Anadromous Fish Restoration Plan flows on the Stanislaus 10 River are being met by the Bureau of Reclamation under 11 our -- what we call the B-2 actions under CVPIA for CVP 12 streams. Now, I do not have direct knowledge of the -- of 13 the exact flows on the Tuolumne and Merced, for example. 14 And, actually, the AFRP plan itself does not specify 15 specific flows in those streams. 16 MR. JACKSON: Okay. So, in other words, the 17 Stanislaus is the only stream that you know of in the San 18 Joaquin that has a flow that would be designed to double 19 the fish population? 20 MR. O'LAUGHLIN: Object, misstates the testimony. 21 C.O. CAFFREY: I didn't hear it. 22 MR. O'LAUGHLIN: Objection. It misstates the 23 testimony. He testify that he didn't know about the other 24 two streams. 25 MR. JACKSON: There's actually three. CAPITOL REPORTERS (916) 923-5447 955 1 MR. O'LAUGHLIN: Well, I know, but you can't lump 2 them all together based on how that question was asked. 3 C.O. CAFFREY: Mr. Jackson, why don't try the 4 question, or a question again? 5 MR. KJELSON: May I make a correction on the 6 question, or inference that you made? 7 C.O. CAFFREY: Well, you can make a correction in 8 your answer, but I don't know if you need to correct his 9 question. 10 MR. JACKSON: I don't think they want you to make me 11 any less confused. 12 C.O. CAFFREY: Since I overruled his question -- 13 MR. KJELSON: He asked me a question when there's an 14 error in the statement and he wants me to give him an 15 answer. 16 C.O. CAFFREY: The question has been overruled. So 17 he has to try it again. He gets another attempt at the 18 question, Mr. Kjelson, or he can go on to another question. 19 MR. JACKSON: How many -- to your knowledge how many 20 of the tributaries, streams on the San Joaquin have 21 recommended AFRP flows? 22 MR. KJELSON: The only one I believe is the 23 Stanislaus. And that flow isn't necessarily one that would 24 achieve doubling. 25 MR. JACKSON: And how do you come to the conclusion CAPITOL REPORTERS (916) 923-5447 956 1 that that flow would not necessarily achieve doubling? 2 MR. KJELSON: I'm only basing it on the -- and I'm 3 not close to that technical issue, but our teams of people 4 developing what we refer to as a "working paper flows" that 5 were designed to at least double production, my 6 recollection is that they were higher than -- I think we 7 had 1500 during the spring outmigration. I don't know if I 8 answered the question. 9 MR. JACKSON: I think you did. Calling your 10 attention to clause 12 of your testimony in Interior 2, on 11 page -- starts on page three and goes to page four. You 12 indicate that: 13 (Reading): 14 "Meeting the objective will require a series of 15 activities. And that measures must take place 16 whereby refinement of the study design 17 and protective measures take place based upon 18 new information obtained from the study results 19 and other new knowledge." 20 Is it your understanding that the flows can be 21 amended in the agreement during the VAMP period? 22 MR. O'LAUGHLIN: That's -- objection. That's been 23 asked and answered twice already. I don't know why we need 24 to go through it again. 25 C.O. CAFFREY: I'm sorry. For the benefit of the CAPITOL REPORTERS (916) 923-5447 957 1 audience and the Board, also, when you're making 2 objections, please, stand. 3 Mr. O'Laughlin, please, go ahead. 4 MR. O'LAUGHLIN: That question has been asked and 5 answered twice already. I don't think we need to reiterate 6 the question again. 7 C.O. CAFFREY: Sustained. We need to zero in and be 8 succinct here and not be repetitive. 9 MR. JACKSON: All right. What measures do you expect 10 that will be -- will be required to be combined with these 11 studies results to refine the study design and the 12 protective measures in this program? 13 MR. KJELSON: Bear with me a minute, please. 14 MR. JACKSON: Yes, sir. 15 MR. KJELSON: I think, again, what I was referring to 16 here is the whole triennial review process and other 17 processes dealing with restoration both in the Delta and 18 upstream whereby as we learn more from our VAMP study 19 results understanding the -- as well as information learned 20 from tributary studies, may indicate from the new 21 information that the protection afforded under present 22 conditions and regulation and so forth isn't sufficient to 23 meet doubling. 24 And my only point here I think is to make sure 25 that we adaptively utilize new information as it comes and CAPITOL REPORTERS (916) 923-5447 958 1 implement it into regulatory actions and other restoration 2 measures whereby many of our agencies and the general 3 public are involved. 4 MR. JACKSON: Now, in Number 13, you indicate that 5 "we," is that the Interior, or U.S. Fish and Wildlife 6 Service, "We recommend the Board"? 7 MR. KJELSON: I use that maybe a little loosely, but 8 I think I'm representing my service. 9 MR. JACKSON: United States Fish and Game? 10 MR. KJELSON: Hopefully, the Interior, also. 11 MR. JACKSON: Great. And part of the recommendation 12 is to initiate analysis of all available data to determine 13 if present protection, including both VAMP and non-VAMP 14 measures, is sufficient to meet the narrative salmon 15 objective; is that correct? 16 MR. KJELSON: Yes. 17 MR. JACKSON: You're asking this Board to analyze 18 whether or not the VAMP is enough to meet the doubling with 19 everything else they're doing? 20 MR. KJELSON: What I said is I'm recommending the 21 Board encourage the interagency ecological program and 22 other appropriate parties to do that. I doubt, somewhat, 23 that the Board Members themselves would analyze that. 24 There are a number of expertises available in the State, 25 and I discuss some of them later in my testimony to do CAPITOL REPORTERS (916) 923-5447 959 1 that. I think the previous paragraph, paragraph 12 refers 2 to parties that might do that. 3 MR. JACKSON: The interagency ecological program? 4 MR. KJELSON: Right. 5 MR. JACKSON: Do you know whether or not that's being 6 done at the present time? 7 MR. KJELSON: It is not being done in a formal since 8 at this time, but I think it will be a logically outpouring 9 of our monitoring and evaluations connected with the CalFed 10 program and our interagency Central Valley Salmon Project 11 work team. I, myself, will encourage that, personally. 12 MR. JACKSON: Have you reviewed the Draft 13 Environmental Impact Report for the VAMP that's 14 presently -- as one of the alternatives that's being done 15 by the Board for this hearing? 16 MR. KJELSON: Yes, but it's been some time. 17 MR. JACKSON: In that review did you determine 18 whether or not that analysis is in the Environmental Impact 19 Report? 20 MR. KJELSON: I don't believe this analysis I refer 21 to there is in -- in the Draft EIR. 22 MR. JACKSON: Now, in 15 you indicate that -- when -- 23 14, you ask for the development of a conceptual model for 24 San Joaquin basin salmon. And the establishment of 25 survival goals by geographical area. Do you know whether CAPITOL REPORTERS (916) 923-5447 960 1 or not that's been done? 2 MR. KJELSON: I don't believe so. But, in essence, I 3 think many people would believe that a modeling approach 4 may be the only way you can answer that question, or have a 5 good -- good belief that the narrative salmon objective was 6 actually being met utilizing the modeling approach. 7 MR. JACKSON: In review of the EIR -- the Draft EIR 8 for this hearing did you find any such modeling approach, 9 or any such conceptual model in that document? 10 MR. KJELSON: I don't believe there is, although I 11 would have to review it more completely to give you a 12 complete answer. 13 MR. JACKSON: In your review of that document did you 14 find any discussion of what the survival goals for various 15 life history stages by geographical area were? 16 MR. KJELSON: No, I don't believe that's in there. 17 MR. JACKSON: Thank you. Now, in 15 you point out 18 that the two processes we just talked about should be 19 completed in any new evaluation implemented or refinements 20 to VAMP itself made prior to the next triennial review. 21 When is that, sir? 22 MR. KJELSON: I don't know the exact date. I imagine 23 it depends on when these hearings would conclude, but I 24 gather it's three years from the conclusion. 25 MR. JACKSON: All right. Now, calling your attention CAPITOL REPORTERS (916) 923-5447 961 1 to 17, on page 5 of Exhibit 2 of the Bureau of Interior, 2 calling your attention to the last sentence, 3 (Reading): 4 "Again, it is important that this plan include 5 resolution of all environmental compliance and 6 permitting issues so that it can be developed and 7 implemented quickly to better assure the 8 likelihood of VAMP's success." 9 Now, that's an operating plan. Have you -- has 10 that operating plan been prepared? 11 MR. KJELSON: I don't believe it's been prepared -- 12 prepared in the completeness, although I'm not up-to-date 13 on the most recent discussions on it. And we're referring 14 to the Old River barrier and the permitting issues and, 15 specifically, the issue of culverts in the barrier and how 16 they would be operated, under what conditions to provide 17 consistent operation to assure that our VAMP is -- is run 18 under -- is consistent of conditions as it can each year. 19 C.O. CAFFREY: Let me ask you, Mr. Jackson, you've 20 completed an hour of cross-examination and we have not 21 penalized you for the objections, or for our interjections. 22 Do you have an estimate of how much more time you think 23 you're going to need for this panel? 24 MR. JACKSON: I need, to be honest about it, I think 25 I would need about the same time that I've used so far. CAPITOL REPORTERS (916) 923-5447 962 1 C.O. CAFFREY: So you think you need another hour for 2 the panel? 3 MR. JACKSON: Yes, sir. 4 MR. JACKSON: Now, I do not need Dr. Herbold, if he'd 5 like to go home. 6 C.O. CAFFREY: We have others that wish to 7 cross-examine. 8 MR. JACKSON: I understand. So I could take a break 9 and we can finish with Dr. Herbold. 10 MR. BRANDT: Yeah, I would actually request if we can 11 do that. Dr. Herbold has some other engagements tomorrow, 12 if we have to I think we can get him out of those. But 13 there's some other ones that I think it would be better to 14 get him done today. And there are fairly short questions 15 and I talked to most of the parties who are in 16 cross-examination. 17 C.O. CAFFREY: So what you're proposing is take a 18 break from Mr. Jackson and go to other parties and see if 19 they wish to question Dr. Herbold and then we can dismiss 20 him and then continue with the rest of the panel? 21 MR. BRANDT: Yes, Mr. Chairman. 22 DR. HERBOLD: I would be extremely grateful. 23 C.O. CAFFREY: All right, sir. Thank you, 24 Mr. Jackson. Does Mr. Porgans, Mr. Suyeyasu, 25 Mr. Hildebrand, or Mr. Nomellini wish to cross-examine CAPITOL REPORTERS (916) 923-5447 963 1 Mr. Herbold? Could I see by a showing of the hands? 2 Mr. Suyeyasu and Mr. Hildebrand do. 3 MR. HILDEBRAND: Very briefly. 4 C.O. CAFFREY: I'm sorry, who spoke? 5 MR. HILDEBRAND: Very briefly. 6 C.O. CAFFREY: All right. Thank you, Mr. Hildebrand. 7 Mr. Suyeyasu, why don't we start with you. And then we'll 8 go to Mr. Hildebrand. You're allowed at least an hour and 9 whatever else is relevant after that, but do you have a 10 rough estimate of how much time you need? 11 MR. SUYEYASU: I'm sorry, I don't. 12 C.O. CAFFREY: Not even a rough estimate? 13 MR. SUYEYASU: Maybe a half hour. 14 C.O. CAFFREY: Half hour. Mr. Hildebrand, any rough 15 estimate? 16 MR. HILDEBRAND: Ten minutes. 17 C.O. CAFFREY: We were planning on quitting as close 18 to 4:00 as we can each day. Probably, in this instance, 19 obviously, we're going to try and complete today for 20 Mr. Herbold, so we may go a little past that. I would ask 21 you all in your cross-examination not to be repetitive and 22 be as brief and crisp as you can. 23 All right. Mr. Suyeyasu, please proceed. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 964 1 ---oOo--- 2 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP 3 BY ENVIRONMENTAL DEFENSE FUND 4 BY DANIEL SUYEYASU 5 MR. SUYEYASU: Mr. Suyeyasu from the Environmental 6 Defense Fund. Mr. Herbold, do you believe that the 7 Vernalis Adaptive Management Plan provides an equivalent 8 level of protection as the Water Quality Control Plan? 9 DR. HERBOLD: Yes, I do. 10 MR. SUYEYASU: In reaching your opinion that it 11 provides an equivalent protection as the Water Quality 12 Control Plan, how did you establish what the flows actually 13 would be under the San Joaquin River Agreement? 14 DR. HERBOLD: I worked with a number of people more 15 familiar on the required flows and historical accretions 16 and depletions along the River to get some baseline 17 estimates for what they -- those flows would be given all 18 the regulatory and operational constraints on the system. 19 And I made one assumption that they had never released 20 water during this period if they could help in the past. 21 MR. SUYEYASU: And do you know any of the other 22 assumptions that went into this model that you used to make 23 your determination? 24 DR. HERBOLD: We assumed operation of the New Melones 25 as per the interim plan. We assumed the operation on CAPITOL REPORTERS (916) 923-5447 965 1 Tuolumne of the new FERC agreements and the small 2 contribution at Merced that -- I don't remember what the 3 legal basis for that is. 4 MR. SUYEYASU: Do you know if the modelers in 5 developing those flow patterns considered at all whether 6 the parties to the agreement might try and change what the 7 existing flows were on the rivers? 8 DR. HERBOLD: During that period they're still under 9 flood control operations. And the assumption was that they 10 were meeting only what the required flows were. So they 11 would be have to be meeting those flows. There's some more 12 question about the amount of water put back into the river 13 and taken out of the river below the dams, those accretions 14 and depletions I mentioned, and those were historically 15 estimated and fit into that. 16 If there was some major change in those patterns 17 of accretions and depletions, then, those flows might 18 change. But they were based to my understanding on the 19 required flows either from flood protection operations or 20 from environmental protection operations at that time. So, 21 no. 22 MR. SUYEYASU: Thank you. And in reaching that 23 conclusion did they also assume that the target flows as 24 well as the export limits would not be changed during the 25 duration of the agreement? CAPITOL REPORTERS (916) 923-5447 966 1 DR. HERBOLD: Yes. 2 MR. SUYEYASU: If it were possible that the target 3 flows, or the export limits could be changed during the 4 duration of the limit -- during the duration of the 5 experiment, would that change your opinion at all as to 6 equivalency? 7 DR. HERBOLD: It would depend on what those changes 8 were. And I think as has just been pointed out, all 9 members of the technical panel have to be in agreement on 10 any of those changes. So I'm -- I'm -- it, certainly, is 11 potential that it wouldn't be, which is why the assurances 12 that are built into the agreement give me the assurance. 13 MR. SUYEYASU: But if -- if -- do you still believe 14 that it's equivalent if it is possible that those target 15 levels and export levels can be changed? 16 DR. HERBOLD: Only within the context that it can be 17 changed only if all parties agree. And since some of the 18 parties are unlikely to accept anything that is less 19 protective, I -- I -- it is -- it is an assumption that 20 Fish and Wildlife Service will fill that role of keeping 21 them protective. 22 MR. SUYEYASU: Is the Fish and Wildlife Service on 23 the management committee? 24 DR. HERBOLD: Yes. 25 MR. SUYEYASU: And are they on the management CAPITOL REPORTERS (916) 923-5447 967 1 committee separate from the Department of Interior? 2 DR. HERBOLD: I'm not quite sure how you do that. 3 MR. SUYEYASU: Okay. Now, in your models you assumed 4 that the New Melones operating the -- the current New 5 Melones Operating Plan would be controlling; is that 6 correct? 7 DR. HERBOLD: Yes. 8 MR. SUYEYASU: And what, in your opinion, would 9 happen to the flows at Vernalis if the New Melones 10 Operating Plan were changed so that less flows would be 11 released during the pulse-flow period? 12 DR. HERBOLD: The base flow would be lower. 13 MR. SUYEYASU: There would be no water made up to 14 meet the current target flows? 15 DR. HERBOLD: There would be a substantial concern 16 from the other parties to the agreement, because the 17 targets wouldn't change. 18 MR. SUYEYASU: Now, in making your determination of 19 equivalency, did you consider that money from the Central 20 Valley Project Improvement Act Restoration Fund would be 21 used to fund the San Joaquin River Agreement? 22 DR. HERBOLD: No. That came in about halfway through 23 the development of the process. 24 MR. SUYEYASU: Does the fact that that is now within 25 the San Joaquin River Agreement, or at least it's a CAPITOL REPORTERS (916) 923-5447 968 1 possibility of the San Joaquin River Agreement change your 2 opinion at all of its equivalency? 3 MR. O'LAUGHLIN: Objection. What does money have to 4 do with -- 5 C.O. CAFFREY: I'm sorry. I don't hear the question. 6 MR. O'LAUGHLIN: What does equivalency have to do 7 with the payment of money when we're talking about Water 8 Quality Control Plans at Vernalis? I don't get it. 9 MR. BRANDT: I have a similar objection, it's 10 slightly different. 11 C.O. CAFFREY: Right. 12 MR. BRANDT: It is that this is outside the 13 expertise. And how the Department of Interior spends 14 money, that is far beyond the expertise for a biologist for 15 EPA. 16 C.O. CAFFREY: We have an objection on the basis of 17 relevancy and the expertise of the witness. I'd rule on 18 both, or one or the other -- 19 MR. SUYEYASU: May I respond? 20 C.O. CAFFREY: You may when I'm through. 21 MR. SUYEYASU: Okay. 22 C.O. CAFFREY: And, please, do not talk when I'm 23 talking. It makes it difficult -- and I'm not picking on 24 you, Mr. Suyeyasu. Because it has happened a couple of 25 times this afternoon, I'll remind the witnesses as well, it CAPITOL REPORTERS (916) 923-5447 969 1 makes it impossible for the Stenographer if two of us are 2 talking at once. 3 Please, respond, Mr. Suyeyasu. 4 MR. SUYEYASU: The relevance is as you know this 5 agreement has to be funded four million dollars a year. 6 And currently there are only -- the only targeted source of 7 that money is the restoration fund. I've heard no other 8 funds will be coming forth. If that money is spent and 9 given to the San Joaquin River Group Authority to pay for 10 these flows, that money would not be used to provide other 11 environmental benefits in the Delta in the Central Valley 12 that it otherwise would be used for. 13 C.O. CAFFREY: All right. Thank you for that 14 explanation. Mr. O'Laughlin? 15 MR. O'LAUGHLIN: I have a further objection, it calls 16 for a incomplete hypothetical, because he is assuming that 17 if, in fact, these monies are in the CVPIA restoration fund 18 that they will be spent, that they will be spent in the San 19 Joaquin River, and they will be spent for the doubling for 20 the anadromous fish. That's an assumption on his part 21 that's not within the hypothetical. 22 Furthermore, it's incorrect to state that under 23 the agreement the only source of the funds would be CVPIA 24 restoration fund. If he had looked at the San Joaquin 25 River Agreement, Exhibit Number 2, he would have seen that CAPITOL REPORTERS (916) 923-5447 970 1 the funds come not only from the CVPIA restoration fund, 2 but they also come from the California Department of Water 3 Resources. 4 C.O. CAFFREY: All right. Time out for a moment, 5 we're going to have a consultation. 6 THE COURT REPORTER: I need to change my battery. 7 C.O. CAFFREY: Perfect timing. 8 THE COURT REPORTER: Thank you. 9 (Off the record.) 10 C.O. CAFFREY: All right. We're back on the record. 11 I am going to sustain the objection with regard to the 12 panelist's ability, he's not a fiscal expert. With regard 13 to the other objection, I'm not going to rule at this time. 14 It is difficult to determine where the fine lines are when 15 we're dealing with the phasing of these issues. There will 16 be opportunities to raise that question, perhaps, in other 17 phases. 18 With that, then, please, proceed, Mr. Suyeyasu -- 19 Mr. Jackson? 20 MR. JACKSON: Mr. Caffrey, if I could because it fits 21 perfectly with the question that these people are -- these 22 are the experts. I mean they're very bright people who 23 work for the government, been there for years. These 24 questions, these -- to these people are going to be coming 25 back to in Phase II-A, V, VI, VII. Could you just maybe CAPITOL REPORTERS (916) 923-5447 971 1 just issue an order that we don't have -- that they will 2 come back if we can work it out with Mr. Brandt that they 3 don't have to be asked every question right now? Or do we 4 have to ask -- I mean salinity, for instance, to fish in 5 the Stockton area is going to come up again. And I don't 6 know whether to ask all my salinity questions now or later. 7 C.O. CAFFREY: Mr. O'Laughlin? 8 MR. O'LAUGHLIN: Not responding on behalf of the 9 Department of the Interior, but on behalf of the other 10 parties's witnesses we will make them available in the 11 other phases. If the parties would send us a letter, 12 request when they want them and what they want them for, we 13 will make them available in the other phases. Particularly 14 as Mr. Jackson says, V, II-A, and probably Phase VI. As to 15 the Department of Interior, Mr. Brandt can respond. 16 MR. BRANDT: I think we've gone through this before 17 as long as -- as I stated as long as I get a letter -- it's 18 a standard procedure, get a letter, identify what the 19 topics are that you need -- in greatest specificity, that 20 you need someone as a witness and I will do my best to 21 arrange for them to be here. I can't promise it every 22 time, but I will do my best to do that. 23 C.O. CAFFREY: Is that satisfactory, Mr. Jackson? 24 MR. JACKSON: These gentlemen are wonderful, not only 25 are they skillful, but they're nice guys. CAPITOL REPORTERS (916) 923-5447 972 1 C.O. CAFFREY: All right. Thank you, Mr. Jackson. 2 I'm going to consult with Mr. Stubchaer here for just a 3 very brief moment. When I say go -- we're going off the 4 record, that doesn't necessarily mean we're taking a break, 5 it may be only 10 or 15 seconds. It just means that Mary 6 can relax a little bit. So we are going off the record for 7 a few seconds. 8 (Off the record from 3:38 p.m. to 3:39 p.m.) 9 C.O. CAFFREY: Thank you, for your patience and 10 indulgence, Mr. Suyeyasu. We have not penalized you in any 11 way, time wise anyway. Please, proceed. 12 MR. SUYEYASU: Mr. Herbold, I realize I may have 13 misspoke before, do you believe that the San Joaquin River 14 Agreement provides an equivalent level of protection with 15 implementation with the Water Quality Control Plan? 16 DR. HERBOLD: I'm sorry, I'm not quite sure on what 17 you're trying to draw equivalence between. Is it flow and 18 exports? 19 MR. SUYEYASU: The implementation of the entire San 20 Joaquin River Agreement, will it provide an equivalent 21 level of protection as if the standard in the Water Quality 22 Control Plan is implemented? 23 DR. HERBOLD: As well as I can understand your 24 question, I would have to say, yes. I -- yes. 25 MR. SUYEYASU: And in making that conclusion what CAPITOL REPORTERS (916) 923-5447 973 1 part of the San Joaquin River Agreement are you 2 considering? 3 DR. HERBOLD: Solely the VAMP. 4 MR. SUYEYASU: So you do not know if the San Joaquin 5 River Agreement, as a whole, is equivalent to the level of 6 protection provided by the Water Quality Control Plan; is 7 that correct? 8 DR. HERBOLD: I am not aware of anything in the San 9 Joaquin River Agreement which provides protection. So, 10 therefore, that -- that part of it doesn't seem relevant to 11 a comparison in this case in the Water Quality Control 12 Plan. 13 MR. SUYEYASU: If it were possible that something in 14 the agreement provided detriments, or harm to the fish 15 species of the Delta, would that affect your opinion as to 16 equivalency? 17 DR. HERBOLD: It could. I'm not aware of anything 18 like that. 19 MR. SUYEYASU: Thank you. Now, within the VAMP there 20 are years that call for a target flow of only 2,000 csf. 21 Do you see any experimental benefits to those years? 22 DR. HERBOLD: This has been a side concern of the 23 Service's and I've talked with them on this subject for the 24 purpose of protection of salmon, there is a strong desire 25 to find water available that's available from sellers as CAPITOL REPORTERS (916) 923-5447 974 1 described in the agreement to keep those flows from 2 dropping to 2,000, because as you saw in the matrix the 3 minimum VAMP flows are 3200. 4 And the Service is concerned about the levels of 5 protection that caused that matrix to target the minimum 6 flow of 3200. The flows that -- the agreement calls for 7 2,000. Therefore, from a protected angle, it ought to be 8 avoided through additional actions by the Service. To 9 answer your question directly, I'm sorry to have gone off 10 on a tangent, there were a number of parties who believed 11 that lower flows and lower exports such as one-to-one would 12 allow a reference back to the Water Quality Control Plan. 13 So the flow of 2,000 and the exports of 1500 that 14 would accompany them would provide some experimental data, 15 but because of the detriment to fish protection the Service 16 has told me quite strongly that they intend to avoid those 17 conditions. So that wasn't part of the VAMP since -- since 18 with their assurance it didn't seem a likely condition, and 19 they didn't want to put in a target flow. 20 MR. SUYEYASU: Now, when are fish populations most 21 susceptible to dangers of extinction, at what populations? 22 DR. HERBOLD: At low levels or at high fluctuations. 23 MR. SUYEYASU: At what flow rates are the fish 24 populations in the San Joaquin River most likely to be at 25 low levels? CAPITOL REPORTERS (916) 923-5447 975 1 DR. HERBOLD: The data that -- I -- 2 MR. O'LAUGHLIN: I'd like to object to this question. 3 It's vague and ambiguous as to what fish. I mean there's a 4 myriad of species in the San Joaquin River. 5 C.O. CAFFREY: I would also add I'm not sure what we 6 mean, or Mr. Suyeyasu means by the term "extinction." I 7 thought extinction was the elimination of an entire 8 species. Do you really mean extinction, or -- 9 MR. SUYEYASU: Yes. 10 C.O. CAFFREY: You do. Okay. 11 MR. SUYEYASU: Well, extinction within a subspecies. 12 C.O. CAFFREY: All right. 13 MR. SUYEYASU: Whatever, the fall-runs. 14 C.O. CAFFREY: All right. Could you clarify the 15 question or try it again based on Mr. O'Laughlin's 16 objection? Thank you. 17 MR. SUYEYASU: In your opinion at what flow levels on 18 the San Joaquin River are the San Joaquin fall-run chinook 19 salmon most likely to experience low population levels? 20 DR. HERBOLD: Under the flow conditions they 21 experienced during the last drought. 22 MR. SUYEYASU: How would you describe those flow 23 conditions? 24 DR. HERBOLD: 800 to 1200 csf during the time period 25 that we're talking about. CAPITOL REPORTERS (916) 923-5447 976 1 MR. SUYEYASU: What are the dangers to fish 2 populations at such low populations as could be experienced 3 during such a drought? 4 DR. HERBOLD: Change to -- well, extinction is a 5 possibility. Since the genetic distinctiveness of the San 6 Joaquin salmon is in some doubt given the history of 7 planting, I'm not sure that we still have a distinct unit 8 there, but we've lost the spring-run off the San Joaquin. 9 We, certainly, have the ability to lose fall-run. 10 MR. SUYEYASU: Do you have those dangers during 11 high-flow years? 12 MR. O'LAUGHLIN: Objection, vague and ambiguous as to 13 "high flows." 14 C.O. CAFFREY: Could you clarify what you mean by 15 "high flows," Mr. Suyeyasu? 16 MR. SUYEYASU: Do you have the same dangers to salmon 17 populations during repeated high-flow events, say, of 18 10,000 csf or higher at Vernalis? 19 DR. HERBOLD: 10,000 -- well, there have been much 20 higher flows than 10,000 at Vernalis. We're experiencing 21 18,000 csf today at Vernalis. The fish evolve in this 22 system with years of extremely high runoff. And so they 23 should be adapted to the stresses of high-flow conditions. 24 MR. SUYEYASU: Now, will the VAMP experiment use 25 hatchery or natural-reproducing fish? CAPITOL REPORTERS (916) 923-5447 977 1 DR. HERBOLD: Hatchery. 2 MR. SUYEYASU: Is it your belief that the hatchery 3 fish released into the Delta behave the same way that 4 naturally-reproducing salmon smolt behave? 5 DR. HERBOLD: No, it is not. 6 MR. SUYEYASU: What is your belief as to the 7 difference between hatchery-reared salmon smolts and 8 naturally-reared salmon smolts? 9 DR. HERBOLD: They're dumb. 10 MR. SUYEYASU: What do you mean by "dumb"? 11 DR. HERBOLD: They don't seek shelter. They don't 12 blend in. They do not avoid predation. They don't find 13 food as readily. They're -- they're kind of like cows are 14 to deer. 15 MR. SUYEYASU: But you think that hatchery-reared 16 fish can be used to try to study naturally-reproducing 17 fish; is that correct? 18 DR. HERBOLD: Yes. 19 MR. SUYEYASU: And why is that so? 20 DR. HERBOLD: They are the same species. They do 21 have some of the same physiological processes. They have 22 some of the same behaviors. And they are the only thing we 23 can have enough of to allow these statistical analyses. 24 MR. SUYEYASU: But in interpreting the VAMP results 25 we always have some questions as to what they mean that CAPITOL REPORTERS (916) 923-5447 978 1 they are hatchery-reared fish instead of 2 naturally-reproducing fish in terms of making suggestions 3 about managing the natural population? 4 DR. HERBOLD: Yes. Although, some of the 5 complimentary studies that Dr. Hanson referred to included 6 things of radio tagging, or otherwise marking wild-cut 7 fish, but it's very hard to catch enough of them. 8 MR. SUYEYASU: Now, are there any detriment impacts 9 to the naturally-reproducing San Joaquin chinook salmon to 10 releasing hatchery-reared salmon into the environment? 11 DR. HERBOLD: Those detriment affects have been shown 12 at a number of other locations where hatcheries are in use. 13 MR. SUYEYASU: And would you describe those 14 detrimental affects? 15 DR. HERBOLD: Dumbing down of the wild population, 16 supportive harvest rates that are incompatible with the 17 wild-size population, and introduction of diseases and 18 other parasites, et cetera, from the hatchery into the 19 wild. 20 MR. SUYEYASU: So you believe that the use -- or the 21 release of hatchery-reared salmon into the wild is 22 detriment to the naturally-reproducing salmon population; 23 is that correct? 24 DR. HERBOLD: Can be. 25 MR. SUYEYASU: Now, are there any detrimental affects CAPITOL REPORTERS (916) 923-5447 979 1 of releasing Sacramento basin hatchery-reared salmon into 2 the San Joaquin basin? 3 DR. HERBOLD: There could be, which is why the VAMP 4 emphasizes the use of Merced River hatchery fish to 5 minimize those external genetic impacts. But we have a 6 long history of releasing Sacramento River fish into the 7 San Joaquin basin. 8 MR. SUYEYASU: And what are those potential impacts 9 trying to be avoided by the use of in-basin smolts? 10 DR. HERBOLD: They -- the studies that were described 11 by Ms. Brandes showed that survival, generally, with the 12 Merced River fish was better. You saw that the line was 13 parallel but above in her graph for Merced River survival 14 versus Feather River survival. They seem to do better. 15 That may be attributable to any number of causes, but it 16 does seem to be a consistent better survival for the Merced 17 River fish. 18 MR. SUYEYASU: Does the use of Feather River fish 19 have unique genetic impacts upon the naturally-reproducing 20 San Joaquin stocks as compa