STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY JULY 22, 1998 9:07 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JOHN CAFFREY, COHEARING OFFICER JAMES STUBCHAER, COHEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 JOHN W. BROWN 7 STAFF MEMBERS: 8 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 1004 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 1005 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 1006 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 1007 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 1008 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 1009 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 1010 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 1011 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 1012 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 1013 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 1014 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 1015 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 1016 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 1017 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 1019 6 AFTERNOON SESSION 1111 7 END OF PROCEEDINGS 1262 8 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP: 9 REGIONAL COUNCIL OF RURAL COUNTIES 1021 10 ENVIRONMENTAL DEFENSE FUND 1048 SOUTH DELTA WATER AGENCY 1111 11 CENTRAL DELTA PARTIES 1150 SAVE THE SAN FRANCISCO BAY ASSOCIATION 1190 12 TUOLUMNE UTILITIES DISTRICT 1209 PORGANS AND ASSOCIATES 1225 13 BY STAFF 1256 14 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1018 1 WEDNESDAY, JULY 22, 1998, 9:07 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Good morning. We are back on the 5 record. For a moment Mr. Brown and I thought that we had 6 been disallowed from attending the hearing the way they 7 have things blocked off over there. Fortunately, we made 8 it. Here we are, sorry, we're a little late. 9 I just received a note that one additional party 10 has asked to cross-examine the panel. Cynthia Koehler will 11 be added to the list. So I'll read the order again: 12 Mr. Jackson, Mr. Porgans, Mr. Suyeyasu, Mr. Hildebrand, 13 Mr. Nomellini and Ms. Koehler. 14 MR. GALLERY: Mr. Chairman, Dan Gallery. 15 C.O. CAFFREY: Yes, Mr. Gallery. 16 MR. GALLERY: I was wondering if I might be added to 17 that list to ask a couple questions? 18 C.O. CAFFREY: And Mr. Gallery. All right. 19 Mr. Jackson? 20 MR. JACKSON: Mr. Chairman, I think you told 21 Mr. Porgans that you'd put him at the end. 22 C.O. CAFFREY: I did, I apologize. Mr. Porgans -- I 23 thank you for that reminder. I should have read 24 Mr. Porgans name last. He had indicated that he would not 25 be able to be here until 11:00 I think he said. CAPITOL REPORTERS (916) 923-5447 1019 1 MR. JACKSON: Yes. 2 C.O. CAFFREY: So the order will be: Jackson, 3 Suyeyasu, Hildebrand, Nomellini, Koehler and Gallery and 4 Porgans. And you had asked for additional time, 5 Mr. Jackson? 6 MR. JACKSON: Yes, sir. 7 C.O. CAFFREY: Which, of course, we grant as long as 8 the questions are relevant. 9 MR. JACKSON: I'll stay relevant. 10 C.O. CAFFREY: All we need is a panel. Mr. Brandt, 11 do you have your panel? 12 MR. BRANDT: Yes. Mr. Chairman, I'd ask for the 13 indulgence of the Board on just one small thing. I've been 14 called to another hearing this morning. And so I'm going 15 to ask that Mr. O'Laughlin be my representative until I 16 think I will have a colleague from the Department of the 17 Interior Solicitor's Office, Dana Jacobson a little bit 18 later this morning. And she will be able to check in for 19 me at that point. But in the meantime, Mr. O'Laughlin will 20 be representing us on -- for our witnesses. 21 C.O. CAFFREY: Since this is a team presentation, I 22 don't think any of the Board Members have any concerns 23 about that. 24 All right, please proceed, Mr. Jackson. 25 // CAPITOL REPORTERS (916) 923-5447 1020 1 ---oOo--- 2 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 3 BY REGIONAL COUNCIL OF RURAL COUNTIES 4 BY MICHAEL B. JACKSON 5 MR. JACKSON: Thank you, sir. Ms. Brandes, calling 6 your attention to your -- your testimony for this 7 particular hearing, I'd like to start at clause 19 in your 8 testimony and go from there through 26 and then move to 9 Exhibit 1-K, if you have those exhibits with you. Exhibit 10 1-K would be the report you wrote, draft issues paper on 11 head of Old River barrier for springtime operation. 12 MS. BRANDES: I have it. 13 MR. JACKSON: Thank you. Now, as we begin 14 Dr. Morhardt indicated that he did not believe that there 15 was any link -- any -- any demonstrable link between flow 16 and smolt survival. What -- in Number 19 you seem to 17 indicate that you believe that there is a potential 18 mechanism for the increase survival of the Dos Reis group 19 may be from the increase inflow at Stockton which occurs 20 when the barrier is in place. 21 What about the '95, '96 and '97 coded-wire tag 22 experiments convinced you that that was the case? 23 MS. BRANDES: Well, I think as I testified to that 24 that was a hypothesis that I put forth, because not only 25 did the Mossdale group increase in 1997 but, also, the Dos CAPITOL REPORTERS (916) 923-5447 1021 1 Reis group did. And since it would be less affected by a 2 barrier by allowing the fish to migrate into upper Old 3 River you wouldn't expect fish leased at Dos Reis many of 4 them to go upstream in to upper Old River. 5 So there needed to be another mechanism to get 6 that increase survival. So I hypothesized that that was 7 due to the flows that were increased past Stockton when you 8 put the barrier in place. I further evaluated that by 9 taking all of the data that I had generated, and correlated 10 that to flow using the smolt survival indices, and I didn't 11 find a relationship as I testified to. 12 When I went further and re-looked at the data 13 using the absolute smolt survival, using the ratio 14 approach, get an absolute smolt survival to take out some 15 of the compounding biases, or differences in gear 16 efficiency between years, that this relationship emerged 17 with smolt survival between smolt survival from Dos Reis to 18 Jersey Point versus flows at Stockton. 19 MR. JACKSON: Now -- you indicate in -- at Number 23 20 in your testimony that the role of exports on smolt 21 survival remains unclear. What do you mean by that since 22 there's -- you cite at 25 and -- or 24, 25 and 26 that the 23 Service has testified on the needs of juvenile salmon 24 before? Have you found some new information that indicates 25 that the previous testimony of the Service in regard to the CAPITOL REPORTERS (916) 923-5447 1022 1 role of exports on smolt survival was wrong? 2 MR. BIRMINGHAM: Objection. Compound. 3 C.O. CAFFREY: Could you simplify that, or ask a 4 series of questions -- 5 MR. JACKSON: Sure, I can. 6 C.O. CAFFREY: -- more to your point, Mr. Jackson? 7 MR. JACKSON: Is it your testimony that the 8 information contained in -- in the 1987 and 1992 State 9 Board hearings, including United States Fish and Wildlife 10 Service Exhibit 31 and United States Fish and Wildlife 11 Service Exhibit 7, 31 being from '87 and 7 being from '92 12 were incorrect? 13 MR. O'LAUGHLIN: Objection. 14 C.O. CAFFREY: I'm going to ask for that -- thank 15 you, Mr. O'Laughlin. When you object, please, stand 16 because it's difficult for us to see where the objection is 17 coming from. 18 Go ahead, Mr. O'Laughlin. 19 MR. O'LAUGHLIN: Objection. Vague and ambiguous. 20 He's referring to a report and exhibit and referring to 21 facts, but he hasn't set forth what facts he's referring to 22 that are now wrong based on the testimony. 23 C.O. CAFFREY: I'm going to sustain that. Can you 24 try and clarify the question? 25 MR. JACKSON: You're going to sustain that? CAPITOL REPORTERS (916) 923-5447 1023 1 C.O. CAFFREY: Yes, I am. 2 MR. JACKSON: I've got it marked. The Service 3 submitted, according to your testimony here, the Service 4 submitted technical reports in 1987 in the State Board 5 hearing on the Sacramento San Joaquin estuary. Is that 6 true? 7 MS. BRANDES: That is true. 8 MR. JACKSON: Is there anything in that testimony 9 that has been disproved, to your knowledge, in regard to 10 the affect of exports on salmon smolts that has changed 11 since the time that exhibit was filed? 12 MS. BRANDES: I am not aware that there is. 13 MR. JACKSON: Is there anything that has changed in 14 regard to the affect of exports on salmon smolt survival 15 from the time that the United States Fish and Wildlife 16 Service filed Exhibit 7 indicating measures to improve the 17 protection of chinook salmon in the Sacramento/San Joaquin 18 Delta in 1992? 19 MR. BIRMINGHAM: Objection. Compound. 20 C.O. CAFFREY: Did you understand the question, 21 Ms. Brandes? 22 MS. BRANDES: I'd like it restated. 23 C.O. CAFFREY: Okay. Could you break the question 24 down? 25 MR. JACKSON: Sure. Have there been any studies that CAPITOL REPORTERS (916) 923-5447 1024 1 have been done since that testimony in 1992, recounted in 2 U.S. Fish and Wildlife Service Exhibit 7, have there been 3 any changes caused by further study that would change the 4 conclusions in that document? 5 MS. BRANDES: I don't believe that there would be. 6 MR. JACKSON: Thank you. Now, calling your attention 7 to page 4 of Exhibit 1-K, first, what is Exhibit 1-K? 8 MS. BRANDES: It's a draft report on particular 9 issues surrounding the head of Old River barrier. 10 MR. JACKSON: Who asked you to prepare it? 11 MS. BRANDES: My supervisor. 12 MR. JACKSON: It was done in the normal course of 13 your work? 14 MS. BRANDES: Yes. 15 MR. JACKSON: Did you make the decision to use it as 16 an exhibit, or was that done by your supervisor? 17 MS. BRANDES: I believe it was an agreement between 18 the two of us to use it for an exhibit. 19 MR. JACKSON: All right. Was it written specifically 20 for this hearing? 21 MS. BRANDES: No. 22 MR. JACKSON: Calling your attention, now, to page 23 four -- excuse me, let's go, actually, back to page three. 24 I guess we have to go as far back as page two. This 25 section is called, "Rationale for Recommending use of a CAPITOL REPORTERS (916) 923-5447 1025 1 Barrier and Recounts Prebarrier Studies." 2 MS. BRANDES: That's correct. 3 MR. JACKSON: Now, going to page four and beginning 4 in the third paragraph, the paragraph that begins on the on 5 that page with the word, "Other." Is it your testimony 6 that the evidence that was collected on adult production 7 indices between 1969 and 1987 indicates that adult 8 production is significantly related to spring flow and 9 export conditions two-and-a-half years earlier? 10 MS. BRANDES: That's correct. 11 MR. JACKSON: Now, the next sentence says, 12 (Reading): 13 "This would also support our hypothesis that at 14 any one flow level, with or without a barrier, 15 reductions in exports will increase survival of 16 smolts and generally translate to higher adult 17 production two-and one-half years later." 18 Is that true? 19 MS. BRANDES: That's correct. That's what it says. 20 MR. JACKSON: Is that the result of the Service's 21 analysis of the data between 1969 and 1987? 22 MS. BRANDES: Adult production data, that's correct. 23 MR. JACKSON: All right. And that is consistent with 24 the United States Fish and Wildlife Service's position in 25 the '87 and '92 hearings? CAPITOL REPORTERS (916) 923-5447 1026 1 MS. BRANDES: I believe that it is. 2 MR. JACKSON: Okay. Now, if that's the case, why 3 then do you -- do you say that the relationship between 4 export and smolt survival is unclear? 5 MS. BRANDES: Well, the data that was presented in 6 19 -- or in this draft report is based on adult production. 7 The data that I was talking about yesterday is based on 8 smolt survival studies in the Delta. 9 MR. JACKSON: There -- 10 MS. BRANDES: And that I could not find a 11 relationship with exports that was compounded to some 12 extent. Part of the reason is that the absolute smolt 13 survival, the data isn't there. There isn't enough data 14 points. And the data that is there is compounded with flow 15 to some extent. So those two variables are very 16 interlinked and it's difficult to separate them out using 17 smolt survival estimates. 18 MR. JACKSON: All right. Now, calling your attention 19 to the same document, what has been the result of the work 20 that's been done in the past years? Has survival been 21 increasing, or has it been decreasing? 22 MR. O'LAUGHLIN: What survival? 23 MR. JACKSON: The survival of smolts. 24 MS. BRANDES: Well, I would say from the indices that 25 we've generated in the past few years, that 1997 was CAPITOL REPORTERS (916) 923-5447 1027 1 relatively high. 1995 was relatively high. And there 2 might have been one in 1992, also, that was relatively 3 high. 4 MR. JACKSON: All right. And there were years in 5 which, for instance, on page seven of your report in the 6 fourth paragraph down, 7 (Reading): 8 "Although an improvement with the barrier was 9 observed, both the absolute survival indices and 10 the difference between the two indices were so 11 low it is difficult to say if there was actually 12 a benefit to the barrier." 13 Is that true? Do you have any idea why survival 14 was so poor in '94 with the barrier in place? 15 MR. BIRMINGHAM: Objection. I don't believe that 16 there was an answer to the first question. 17 C.O. CAFFREY: I'm not sure it was a question. 18 MR. JACKSON: Do you have any idea whether or not -- 19 why the survival was so low with the barrier in place? 20 C.O. CAFFREY: Thank you, Mr. Jackson. Can you 21 answer that question first and, then, pose the next one? 22 MS. BRANDES: Well, the way that we had designed 23 barrier studies initially starting in 1992 was that we were 24 releasing groups of smolts at Mossdale without the barrier. 25 Then we would put the barrier in and then make additional CAPITOL REPORTERS (916) 923-5447 1028 1 releases with the barrier. 2 What happens as time increases, or it gets later 3 in the year the temperature increase. And temperature has 4 a profound affect on survival. And that's, potentially, 5 why you got less survival with the barrier in place than 6 you did without the barrier. And I believe that was the 7 first question you asked. 8 The second was: Why was all the survival indices 9 so low in 1994? And I believe it has to do with the higher 10 temperatures and low flows. 11 MR. JACKSON: Okay. And high temperatures and low 12 flows, generally, go together in some relationship, don't 13 they? 14 MS. BRANDES: Generally. 15 MR. JACKSON: So the lower the flow, for instance, in 16 the Stockton area, the higher the temperature may be in the 17 Chipps channel around Stockton? 18 MS. BRANDES: I don't -- I don't know that, per se. 19 MR. JACKSON: Mr. Kjelson, do you know that, per se? 20 DR. KJELSON: No, I don't. I think the only 21 clarifying thing that I would make to that is temperature 22 is so much related to the time of year and the ambient air 23 temperature. I think we've testified before that while in 24 general when you have higher flows you have lower 25 temperature. But that is often correlated, or very much CAPITOL REPORTERS (916) 923-5447 1029 1 related to the time of year and the type of climate that we 2 had during that year. 3 MR. JACKSON: Let's talk about the time of year being 4 the pulse-flow time period, the smolt immigration time 5 period, but the part of the 65 percent that's within the 6 April 15th to May 15th date, if there is a temperature of 7 70 degrees between Stockton and Jersey Point, for instance, 8 does that operate as a thermal barrier to the smolts? 9 DR. KJELSON: I don't believe so. 10 MR. JACKSON: You believe the smolts would, then, go 11 into the high temperature area and that's when there would 12 be a lower survival rate, is that the -- 13 DR. KJELSON: You asked me if it was a block and I 14 told you, no. It's, generally, I would believe, a gradient 15 where as the temperature gets higher and higher to 16 generally a lethal temperature of around 78, there's more 17 and more mortality that occurs. But it's a complicated 18 question to estimate what the actual result would be. 19 MR. JACKSON: But there have been reflections of 20 temperatures in that area in the April to May period being 21 over 70 degrees, over 68, in the past 14 years, have there 22 not? 23 DR. KJELSON: Yes. And we may wish to clarify 24 something in what you just referred to, so I didn't mislead 25 you yesterday. You refer to the table on temperature, if I CAPITOL REPORTERS (916) 923-5447 1030 1 can find it myself, it's Exhibit 2-F of Interior. The 2 temperatures from that record that we had were over 68 3 degrees in three years on April 15th. 4 As I believe Dr. Hanson mentioned yesterday, our 5 releases are made around April 15th. And then our second 6 release prior to May 1st. So in this period of record, 7 you're correct, there were three years where the 8 temperature on April 15th was that high. 9 MR. JACKSON: And that was measured at what point? 10 DR. KJELSON: At Mossdale. 11 MR. JACKSON: Okay. What would be the affect of 12 temperatures like that at Mossdale? 13 DR. KJELSON: Excuse me. Dr. Hanson asked me to 14 mention that in that table when we talk about the 70-degree 15 Fahrenheit, they were all after, I think, May 1st with the 16 exception of one year. 17 MR. JACKSON: All right. But they were within the 18 pulse-flow period? 19 DR. KJELSON: Yes. 20 MR. JACKSON: They were within the immigration period 21 for the 65 percent of the San Joaquin fall-run smolts that 22 immigrate during the April 15th to May 15th date? 23 DR. KJELSON: Yes. 24 MR. JACKSON: Now, I want to shift for a moment and 25 talk about -- let me ask a introductory question. We've CAPITOL REPORTERS (916) 923-5447 1031 1 talked about flow and its correlation to smolt survival. 2 We've talked about exports and the history of United States 3 Fish and Wildlife Service attempting to equate that level 4 to smolt survival. And we've talked about the barrier and 5 its affect on smolt survival. 6 Are there any more variables which are important 7 in beginning to design a study that indicate the actual 8 relationship of those three things? Are there other things 9 that need to be included? 10 DR. KJELSON: Well, certainly. And I think 11 Dr. Hanson, Dr. Herbold referred to some of the other 12 factors that are noted in our complementary studies such as 13 toxics, predation, temperature, and I think he may have 14 added some others. 15 MR. JACKSON: All right. In terms of toxics, 16 predation and temperatures, there's -- they're site 17 specific kinds of things that happen at a given site to a 18 given set of fish, are they not? 19 DR. KJELSON: Well, they can be. But you may have 20 potential toxic and predation affects throughout the whole 21 Delta. 22 MR. JACKSON: Well, let's talk about, now, the whole 23 Delta. Is there any way that additional water from the 24 Sacramento side can make up for flow for the San Joaquin 25 fall-run smolts? CAPITOL REPORTERS (916) 923-5447 1032 1 MR. O'LAUGHLIN: Objection. Outside the witness's 2 expertise. He's a fishery biologist. He's not a 3 hydrologist or a hydraulic engineer. 4 MR. JACKSON: I'm asking him -- they testified about 5 flow on the San Joaquin part of the San Joaquin/Sacramento 6 Delta. I'm simply asking them to testify, if they can, in 7 regards to the affects of flow from the Sacramento side on 8 San Joaquin salmon smolts. 9 C.O. CAFFREY: I will allow the witness to answer the 10 question, if he feels capable. 11 DR. KJELSON: I think all I would add is that I think 12 we all realize that Sacramento water does come into the 13 Central Delta. And there's a portion of the Central Delta 14 that would be affected by Sacramento flow and in turn could 15 have an influence on migration of San Joaquin smolts, 16 because they have to, of course, pass through the entire 17 Delta. 18 MR. JACKSON: Now, is it fair to say that Sacramento 19 River flow coming from the north of the Delta compounds the 20 problems for San Joaquin smolt immigrating? 21 DR. KJELSON: I'm not sure what you mean by, 22 "compounded." 23 MR. JACKSON: Does the increased flow of Sacramento 24 water going to the pumps have any affect on the San Joaquin 25 smolts attempting to immigrate? CAPITOL REPORTERS (916) 923-5447 1033 1 DR. KJELSON: There's two things that come to mind. 2 One would be the imprinting issue where they may get 3 potentially confused with Sacramento water, although I'm 4 not sure that's a significant issue. 5 The other issue is, of course, as we've stated of 6 the potential impact of reverse flows. While the data is 7 not very clear on the impact reverse flows on smolt 8 migration, that's a potential affect. 9 MR. JACKSON: For the purposes of the VAMP are you, 10 then, going to hold the Sacramento inflow to the exports 11 constant? 12 DR. KJELSON: I don't think the VAMP addresses that. 13 MR. JACKSON: So if to whatever degree the varying 14 flows to the pumps from the Sacramento system affect the 15 immigrating San Joaquin smolts, the VAMP program has no way 16 of measuring that? 17 DR. KJELSON: I think there's potential to get an 18 appreciation of that affect with our multiple releases. We 19 have fish being released at the mouth of the Mokelumne and 20 Jersey Point. And there is some potential to make 21 relationships with what you were talking about, utilizing 22 that kind of data, but it remains to be seen how that would 23 fallout. 24 MR. JACKSON: All right. Now, talking again about 25 the Sacramento flow, along with the Sacramento flow to the CAPITOL REPORTERS (916) 923-5447 1034 1 pumps comes Sacramento species of concern, do they not? 2 DR. KJELSON: Yes. 3 MR. JACKSON: What species are of concern on the 4 Sacramento River and what is their present status under the 5 endangered species law? 6 DR. KJELSON: Well, I will restrict my comments to 7 the simple statement that Delta smelt and winter-run are 8 listed presently. And while Delta smelt are generally 9 considered a Delta species, winter-run come from the 10 Sacramento River. 11 MR. JACKSON: And the spring-run are a candidate 12 species? 13 DR. KJELSON: Yes. 14 MR. JACKSON: And winter-run smolt and fry, 15 spring-run smolt and fry a late -- a late-fall smolt and 16 fry from the Sacramento River system are in the Delta, some 17 one of those, at almost all times, are they not? 18 DR. KJELSON: Well, of some life stage. 19 MR. JACKSON: All right. Now, is there anything in 20 the VAMP study that determines the affect of the -- excuse 21 me, let me back up and withdraw that part of the question. 22 When you put in the barrier, and this is directed 23 to Ms. Brandes or Mr. Kjelson, when you put in the barrier 24 and deprive the Old River of the San Joaquin flow, does 25 that increase the amount of water going to the pumps from CAPITOL REPORTERS (916) 923-5447 1035 1 the Central Delta? 2 MR. O'LAUGHLIN: Objection. Outside the scope of the 3 witness's expertise. He's not a hydrologist, or hydraulic 4 engineer. 5 C.O. CAFFREY: Do you feel competent to answer that 6 question, Dr. Kjelson? 7 DR. KJELSON: Not as a hydrologist. 8 C.O. CAFFREY: But as a -- 9 DR. KJELSON: But if all he's asking is: Does more 10 water go to the pumps on the Sacramento side when there's a 11 barrier in? I think, generally, particle tracking work 12 would say, yes. 13 C.O. CAFFREY: He's answered, "Yes." Go ahead. 14 MR. JACKSON: The particle tracking work that you're 15 talking about, would you explain that? 16 MR. O'LAUGHLIN: Objection. Once again it goes 17 outside the scope of the witness's expertise. He's not a 18 hydrologist or a hydraulics engineer. He never testified 19 that he has any personal knowledge nor that he has done the 20 particle tracking. 21 C.O. CAFFREY: Have you reached the point where we've 22 gone beyond the scope of your expertise? 23 DR. KJELSON: I would say so, yes. 24 C.O. CAFFREY: All right. Sustained. 25 MR. JACKSON: You do have expertise on fish in the CAPITOL REPORTERS (916) 923-5447 1036 1 Delta? 2 DR. KJELSON: I'm beginning to -- Strike that. I 3 believe I do. 4 MR. JACKSON: In fact, Dr. Kjelson, haven't you run 5 the program for the United States Fish and Wildlife Service 6 for all of the years that we're talking about? 7 DR. KJELSON: Yes, I have. 8 MR. JACKSON: You don't suppose there's anybody who 9 knows more about fish in the Delta than you do, do you? 10 DR. KJELSON: Yes, I do suppose that. 11 C.O. CAFFREY: We learn more each day. 12 MR. JACKSON: Okay. Would you acknowledge you would 13 make the top ten? 14 DR. KJELSON: No, but I do know something about the 15 fish in the Delta. 16 MR. JACKSON: Okay. When you put in the barrier is 17 it based upon your experience in working in the Delta, 18 based upon your experience with the barrier program, would 19 you expect that there would be more water drafted from the 20 Central Delta than there would be from the source without 21 the Delta, which would be Old River -- 22 MR. O'LAUGHLIN: Same objection. 23 MR. JACKSON: -- or without the barrier which would 24 be Old River? 25 MR. O'LAUGHLIN: Mr. Chairman, same objection. The CAPITOL REPORTERS (916) 923-5447 1037 1 only word that has changed is the word "drafted." 2 C.O. CAFFREY: I assume that you feel equally 3 incapable of answering that question as with the previous 4 one? 5 DR. KJELSON: Yes. 6 C.O. CAFFREY: Is that a correct assumption? 7 DR. KJELSON: Yes. 8 C.O. CAFFREY: The objection is sustained. 9 MR. JACKSON: Then I would move to strike all 10 references to flow from the United States Fish and Wildlife 11 Service testimony of Dr. Kjelson and Ms. Brandes. 12 C.O. CAFFREY: Your motion is denied, because we're 13 talking about a level of specificity of expertise and 14 you're going from the general to the very specific. So we 15 will not strike that testimony. 16 MR. JACKSON: Ms. Brandes, calling your attention to 17 your testimony in Government Exhibit 1-K on page 16 under, 18 "Other Consideration." The first sentence reads, 19 (Reading): 20 "The amount of water for exports that come from 21 upper Old River will be unavailable with a head 22 of Old River barrier in place." 23 Do you believe that to be true? 24 MS. BRANDES: Yes. 25 MR. JACKSON: Your next sentence, says, CAPITOL REPORTERS (916) 923-5447 1038 1 (Reading): 2 "To compensate for the loss of water a 3 proportional increase in flows south from the 4 Central Delta channels, such as the Lower, Old 5 and Middle Rivers would need to occur." 6 Do you believe that to be true? 7 MS. BRANDES: That's my understanding. 8 MR. JACKSON: "Delta smelt and other fish species in 9 the Central Delta during the head of Old River operation 10 are susceptible to this shift in water being drafted from 11 the Central Delta channels to the CVP and SWP pumps." Do 12 you believe that to be true? 13 MS. BRANDES: Yes. 14 MR. JACKSON: Your next sentence says, 15 (Reading): 16 "This is a concern not only for Delta smelt 17 winter-run salmon and striped bass, but as 18 mentioned above could detract from the barrier 19 in terms of San Joaquin smolt survival." 20 Do you believe that to be true? 21 MS. BRANDES: Yes, I do. I think there's an 22 explanation that might be needed -- 23 MR. JACKSON: Well, unfortunately, I don't want to 24 get beyond either of our areas of expertise, so I guess 25 from now on I'll just ask the questions and you give me the CAPITOL REPORTERS (916) 923-5447 1039 1 answer. 2 MR. O'LAUGHLIN: Mr. Chairman, I object, because I 3 remember that in previous testimony when I made that 4 statement you would allow the witness to explain their 5 answer. 6 C.O. CAFFREY: Objection sustained. Our rules here 7 allow for people to explain their answers if they wish to 8 clarify. Do you wish to offer a clarification, 9 Ms. Brandes? 10 MS. BRANDES: Yes, I do. 11 C.O. CAFFREY: Please, do. 12 MS. BRANDES: The reason that I said that it could 13 detract from the benefits of the barrier is because, 14 potentially, you will get some decrease in survival if more 15 fish are drafted from the north, from the increase. But -- 16 but the net overall survival would still be better, you 17 just potentially would get some net decrease. 18 MR. JACKSON: You would get -- is it your testimony 19 that you might get better survival of the San Joaquin 20 fall-run smolts but you would get less survival of the 21 Sacramento River and Delta estuarian species? 22 MS. BRANDES: That's not what I meant to say. What I 23 was trying to say was for San Joaquin salmon that are 24 migrating through the south -- through the South Delta when 25 you have a barrier in place and you don't change what CAPITOL REPORTERS (916) 923-5447 1040 1 exports are, and you have an increase in the amount of 2 water coming from the Central Delta to the South Delta that 3 you could decrease the benefits -- some of the benefits 4 that you got from the barrier -- having the barrier in 5 place for those fish originating from the San Joaquin 6 basin. 7 MR. JACKSON: So the way to maximize the benefit is 8 to put in the barrier and lower the exports? 9 MS. BRANDES: That is true. And I believe that is 10 what VAMP tries to do. 11 MR. JACKSON: Now, that said, the barrier and the 12 drafting of water at a higher proportion from the South and 13 Central Delta channels has a tendency to bring more 14 Sacramento River fish to the export facilities, does it 15 not? 16 MR. O'LAUGHLIN: Objection. Incomplete hypothetical. 17 He's assuming that the exports levels remain the same. So 18 I'm confused if this is a hypothetical where the exports 19 remain the same, or if this is the San Joaquin River 20 Agreement where the exports are actually lower. 21 C.O. CAFFREY: I think the objection is on the basis 22 of not understanding the question. If could you clarify it 23 please, Mr. Jackson? 24 MR. JACKSON: You mean the witness doesn't understand 25 the question, or the lawyer doesn't understand the CAPITOL REPORTERS (916) 923-5447 1041 1 question? 2 C.O. CAFFREY: The lawyer doesn't understand the 3 question. I'm not sure I do either. 4 MR. JACKSON: All right. 5 C.O. CAFFREY: But, please, try it again. I want you 6 to -- 7 MR. JACKSON: I would like it readback. 8 C.O. CAFFREY: All right. Could we readback 9 Mr. Jackson's question? 10 (Whereupon the question was readback by the Reporter.) 11 C.O. CAFFREY: Do you understand -- was the question 12 to Ms. Brandes? 13 MR. JACKSON: Yes. 14 C.O. CAFFREY: Do you understand the question, 15 Ms. Brandes? 16 MS. BRANDES: I think so, but I'm not clear as to 17 what you're comparing it to. Whether exports are the same, 18 in a condition where the exports are the same and you put a 19 barrier in and then you do not have a barrier? I don't 20 understand. 21 MR. JACKSON: I'm comparing it to the situation in 22 which there is no barrier and the water simply comes -- the 23 60 percent of the flow of the San Joaquin River that 24 traditionally goes down Old River goes down Old River when 25 you put the barrier up, that water does not go down the Old CAPITOL REPORTERS (916) 923-5447 1042 1 River, correct? 2 MS. BRANDES: That's correct. 3 MR. JACKSON: But the pumps continue to operate and 4 take water from somewhere else, don't they? 5 MS. BRANDES: Well, based on both the Water Quality 6 Control Plan and VAMP that when -- during that pulse-flow 7 period, exports actually are decreased. 8 MR. JACKSON: Decreased -- 9 MS. BRANDES: So that when the barrier goes in, 10 exports are decreased to some extent. 11 MR. JACKSON: Is there a ratio, any sort of 12 scientific analysis of what happen? How many Sacramento, 13 or Delta smelt fish are brought to the pumps from the 14 closing of the Old River barrier? 15 MR. BIRMINGHAM: Objection. Compound. 16 MR. JACKSON: I'll try it, again. 17 C.O. CAFFREY: Yeah, I think -- 18 MR. JACKSON: I will withdraw it and I will try it 19 again. 20 C.O. CAFFREY: I think I understood. Thank you, 21 Mr. Jackson, try it again. 22 MR. JACKSON: Calling your attention to page 16 the 23 last paragraph, the second sentence. 24 (Reading): 25 "If pumping is increased with the barrier it's CAPITOL REPORTERS (916) 923-5447 1043 1 likely any smelt or winter-run in the south 2 Delta would be further impacted." 3 Do you believe that to be true? 4 MS. BRANDES: Could you restate the question again? 5 I mean it's basically what's written here? 6 MR. JACKSON: Yes, it is. If pumping is increased 7 with the barrier, is it likely that smelt and winter-run 8 would be further impacted? 9 MS. BRANDES: Right, but it makes the distinction 10 that those fish are in the South Delta. 11 MR. JACKSON: Right. Now, tell me, during the period 12 of the VAMP -- and I guess this should be directed to 13 Dr. Hanson. During the period that the barriers are in 14 place they will be in place only for the one month? 15 MR. O'LAUGHLIN: Objection. There's only been 16 testimony that through the VAMP that there would be one 17 barrier, not "barriers." 18 MR. JACKSON: All right. 19 C.O. CAFFREY: All right. Could you restate your 20 question, Mr. Jackson? 21 MR. JACKSON: While the head of Old River barrier is 22 in place in any given year, will it be only for one month? 23 DR. HANSON: In terms of the VAMP program it would be 24 only in during the period of the VAMP study, April 15th 25 through May 15th. The period that the barrier can be CAPITOL REPORTERS (916) 923-5447 1044 1 installed is dictated by the permit that has been issued to 2 the Department of Water Resources. And it has specific 3 dates for when it can be installed and when it needs to be 4 removed. 5 MR. JACKSON: Do you know those dates? 6 DR. HANSON: I don't specifically, no. 7 MR. JACKSON: All right. Do you agree that when the 8 barrier is in place if pumping is increased it's likely to 9 increase the affect on smelt and winter-run in the South 10 Delta? 11 DR. HANSON: That, certainly, is one of the 12 hypotheses that has been put forward. And some of the 13 hydraulic modeling that I have reviewed suggests that that 14 may occur. One of the purposes of VAMP, in addition to 15 looking at the salmon smolt survival though is to also look 16 at the response of some of the other species in the Delta 17 to the changes in hydraulic conditions. 18 We will have monitoring that occurs in the South 19 Delta. We will have data collected from the state and 20 federal water project salvage operations on other species. 21 And we will use that data in combination with the data from 22 the USGS and the DWR hydraulic monitoring as part of our 23 technical review of the results from each year's studies to 24 try and evaluate that in more detail. 25 MR. JACKSON: And does, then, the protective measures CAPITOL REPORTERS (916) 923-5447 1045 1 in the VAMP that we're checking to see at this point if 2 their equivalency will those to be changed based upon the 3 adapt -- the information you get? 4 DR. HANSON: The information that we get from each 5 year's studies will then be brought, first, to the 6 technical group for their scientific peer review. And then 7 the results of that analysis will be forwarded to the 8 policy level and the management level within the VAMP 9 program for their consideration. 10 To the extent that the technical folks evaluate 11 the data and identify what they feel to be appropriate 12 modifications, or recommendations to be brought to the 13 other group, that certainly will occur. 14 MR. JACKSON: And if there's more water required, or 15 if there's less pumping required that will be adjusted? 16 DR. HANSON: I can't specify that it will be 17 adjusted. The technical group will evaluate the data and 18 present that information to the decision makers. It will 19 be their choice, given the other operating constraints and 20 other factors to decide how they best deal with that 21 information. 22 MR. JACKSON: So the technical people here today, 23 while they're planning an adaptive management program, are 24 not in control of whether or not the agreement changes? 25 DR. HANSON: I think that's true. CAPITOL REPORTERS (916) 923-5447 1046 1 MR. JACKSON: Does everybody here sort of agree with 2 that, that there is no -- you have no power in this 3 agreement to adapt to the new information if the agreement 4 parties don't allow it? 5 MR. O'LAUGHLIN: Objection. That misstates the 6 testimony. 7 C.O. CAFFREY: Are you asking another question, now, 8 Mr. Jackson? 9 MR. JACKSON: Yes. I was -- I was trying to confirm 10 what I thought I had heard in the answer. 11 C.O. CAFFREY: All right. Objection overruled. Go 12 ahead. 13 DR. HANSON: I will speak for myself and others 14 should do likewise. My understanding is that the technical 15 group will review and evaluate the data that's collected 16 each year. We will, then, use that data in combination 17 with other information that's available to make 18 recommendations to modify operations, to look at 19 alternative ways of addressing the issues within the 20 overall framework that is established by VAMP. And we will 21 do that on a year-by-year basis. 22 I don't believe it's the authority of the 23 technical group to require, or mandate that those changes 24 be implemented. There are other factors that come in in 25 the broader scheme of things in terms of how those CAPITOL REPORTERS (916) 923-5447 1047 1 decisions will ultimately be implemented. 2 MR. JACKSON: Thank you, sir. Ms. Brandes, calling 3 your attention to the last sentence on page 16 and the 4 first sentence on page 18 -- 5 MR. BIRMINGHAM: Excuse me, Mr. Jackson, could you 6 identify the exhibit, please? 7 MR. JACKSON: Yes, Exhibit 1-K. You indicate that if 8 the barrier goes in and if pumping levels stay the same 9 there probably will be some net benefit to smolt survival. 10 Do you agree with that? Is that right? 11 MS. BRANDES: Yes, in the context that it was written 12 in this, yes. 13 MR. JACKSON: But Delta smelt, striped bass and 14 winter-run may be impacted? 15 MS. BRANDES: Potentially. 16 MR. JACKSON: Thank you very much. I have no further 17 questions. 18 C.O. CAFFREY: All right. Thank you, Mr. Jackson. 19 Mr. Suyeyasu? There he is. Your turn to cross-examine, 20 sir. Good morning. 21 ---oOo--- 22 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 23 BY THE ENVIRONMENTAL DEFENSE FUND 24 BY DANIEL SUYEYASU 25 MR. SUYEYASU: Thank you, Mr. Chairman. Dan Suyeyasu CAPITOL REPORTERS (916) 923-5447 1048 1 with the Environmental Defense Fund. Mr. Hanson, if I 2 might start with you this morning. I'd like to talk a 3 little about the development of the VAMP experiment. In 4 the VAMP experiment the export limits for that experiment 5 were generally set based on the biological opinion for 6 Delta smelt; is that correct? 7 DR. HANSON: That was one of the factors that was 8 considered in setting the export limits. Other factors 9 included the type of array of data that we were looking for 10 in terms of the relationship between Vernalis flows and 11 exports. And so, for example, in our matrix we have two 12 different export levels at the flows of 7,000 csf, an 13 export of 1500, and an export of 3,000. Both of those were 14 evaluated and established based on considerations of the 15 biological opinion, but they were also determined based on 16 the experimental design of what we were hoping to 17 accomplish. 18 MR. SUYEYASU: Now, in setting some of the export 19 limits, why did you consider the biological opinion? 20 DR. HANSON: We didn't want to propose an 21 experimental design that was in violation of a biological 22 opinion that had been issued by either the National Marine 23 Fishery Service or Fish and Wildlife Service. It was part 24 of our overall evaluation in the development of the 25 program. CAPITOL REPORTERS (916) 923-5447 1049 1 MR. SUYEYASU: And the high -- the high flow level 2 within the experiment was 7,000 csf -- 3 THE COURT REPORTER: I'm sorry, you're going to have 4 to slow down. 5 MR. SUYEYASU: The 7,000 csf flow level within the 6 experiment that was based on the limitations of installing 7 the barrier; is that correct? 8 DR. HANSON: On not only installing the barrier but 9 its operation. 10 MR. SUYEYASU: Now, do you believe that the Vernalis 11 Adaptive Management Plan provides an equivalent level of 12 protection as the Water Quality Control Plan; is that 13 correct? 14 DR. HANSON: I do. 15 MR. SUYEYASU: Do you believe the San Joaquin River 16 Agreement provides an equivalent level of environmental 17 protection as the Water Quality Control Plan? 18 DR. HANSON: I have not evaluated the equivalency of 19 the agreement. I've focused strictly on the comparison of 20 the flow, export, and environmental conditions that would 21 be implemented as part of the VAMP program with a 22 comparison of the comparable flow, export and environmental 23 conditions that would be implemented as part of the State 24 Board Water Quality Control Plan. I did not go beyond that 25 scope. CAPITOL REPORTERS (916) 923-5447 1050 1 MR. SUYEYASU: Okay. In comparing the Water Quality 2 Control Plan flows with the VAMP flows, how did you 3 determine -- or what was your determination of what the 4 export -- inflow/export ratio would be under the Water 5 Quality Control Plan? 6 DR. HANSON: That work was done in consultation with 7 Bruce Herbold, as he testified yesterday in his discussions 8 with the hydrologists and the water operational modelers. 9 My understanding in my discussions with Bruce is that the 10 export/inflow ratio that was established was the 11 one-to-one. 12 MR. SUYEYASU: So -- 13 DR. HANSON: But I could be wrong. 14 MR. SUYEYASU: So in assessing the environmental 15 protection provided by the Water Quality Control Plan you 16 used an inflow/export ratio of one-to-one; is that correct? 17 DR. HANSON: That's my understanding. 18 MR. SUYEYASU: Now, can you explain to me why you 19 didn't use the export/inflow -- export -- or inflow/export 20 ratio that was required by the biological opinion? 21 DR. HANSON: And assuming that my understanding from 22 my discussions with Bruce is correct, that we did establish 23 it based on the one-to-one, that was based on a direct 24 comparison between the Water Quality Control Plan and VAMP 25 in the absence of other environmental regulations, or other CAPITOL REPORTERS (916) 923-5447 1051 1 biological opinions. It was a direct comparison among 2 those two proposed plans. 3 The other aspect of that is that there is no 4 certainty that the biological opinion may not change during 5 the course of the next few years. We simply don't know. 6 And so we established a direct comparison for the purposes 7 of evaluating those two plans. 8 MR. SUYEYASU: Even though you did not know if the 9 biological opinion was going to be in effect over the next 10 few years, you still used it to constrain your VAMP 11 experiment; is that correct? 12 DR. HANSON: We used it as a guideline in 13 establishing our criteria for VAMP. We felt it was 14 something that was appropriate to consider. We had a 15 number of discussions with representatives from the U.S. 16 Fish and Wildlife Service in developing the VAMP program. 17 And so I do feel that it was an appropriate consideration 18 to be used in establishing these VAMP guidelines, yes. 19 MR. SUYEYASU: Okay. Now, in your comparison of 20 environmental protection equivalency on the San Joaquin -- 21 on the VAMP side of the flows, did you assume that the 22 target flows would always be met? 23 DR. HANSON: Again, Bruce was the one who actually 24 did the detailed work on that hydrology with the modelers. 25 And I can't speak to the specific assumptions that were CAPITOL REPORTERS (916) 923-5447 1052 1 established to that. He testified to those yesterday. 2 MR. SUYEYASU: So in making your comparison of 3 equivalency -- your determine of equivalency, you're 4 relying on Mr. Herbold's presentation of the hydrology to 5 you; is that correct? 6 DR. HANSON: I'm relying -- the way that this 7 actually was developed was Bruce had a number of 8 discussions with a variety of hydrologists and other 9 experts in establishing what would be appropriate for 10 modeling purposes to compare the '95 Water Quality Control 11 Plan with VAMP. He worked directly with them. And they 12 produced a series of modeling outputs. 13 Those modeling outputs were then summarized in 14 graphic form by Bruce. He and I sat down. We reviewed 15 those modeling outputs. My determination was based on the 16 results of that exercise, but I did rely on the information 17 that Bruce provided. 18 MR. SUYEYASU: Now, do you know any of the 19 assumptions that went into that modeling output, 20 whatsoever? 21 DR. HANSON: Only in general terms through our 22 discussions, but not in a great deal of specificity. 23 MR. SUYEYASU: What would be those general terms? 24 DR. HANSON: For example, we talked about the 25 seasonal time period. We talked about the environment CAPITOL REPORTERS (916) 923-5447 1053 1 baseline conditions. We talked about the export/inflow 2 ratios. We talked about the way the modeling was done to 3 account for variation from one year to the next. 4 MR. SUYEYASU: Do you know if the models of the flows 5 that you relied upon considered at all that the parties to 6 the agreement might change what the existing flows are 7 during the time period that the experiment is conducted? 8 DR. HANSON: I don't believe that was part of the 9 discussion I had with Bruce. So I don't know. 10 MR. SUYEYASU: If -- withdraw the question. 11 In considering the environmental equivalency of 12 these, the VAMP and the Water Quality Control Plan, did you 13 consider any detrimental environmental impacts of the 14 release of hatchery-reared fish? 15 DR. HANSON: In developing the VAMP program we had 16 extensive discussions about the use of hatchery-reared 17 fish, both fish reared from San Joaquin origin stocks from 18 within the San Joaquin River basin as well as those stocks 19 reared from the Sacramento basin primarily from the Feather 20 River hatchery. So it was a significant factor and issue 21 that was discussed extensively among the technical experts. 22 MR. SUYEYASU: Now, just discussing the in-basin 23 stock, the use of fish from the Merced River fishery 24 hatchery, what were your concerns about using those 25 hatchery-reared fish? CAPITOL REPORTERS (916) 923-5447 1054 1 DR. HANSON: Our concern centered on, basically, 2 three issues. The first issue was whether or not we would 3 have an adequate number of juvenile chinook salmon to meet 4 the requirements of the experimental design as outlined in 5 VAMP. And through our discussions we recognized that there 6 may be years when we do not have an adequate number. So we 7 established contingency plans on how to best deal with that 8 should it occur. 9 The second was whether or not hatchery-reared fish 10 were an appropriate surrogate for wild outmigrating salmon. 11 And in our discussions we thought that given all of the 12 other constraints and our inability to collect a sufficient 13 number of wild fish, that hatchery fish were an appropriate 14 surrogate, recognizing their, you know, historical rearing 15 practices and things of that nature. 16 To help us to deal with that, we tried to coincide 17 the period of VAMP with the period when the greatest 18 majority of the wild fish were outmigrating so that they 19 would be experiencing the same kind of environmental 20 conditions as do the wild fish during their spring 21 outmigration. Those were some of the factors that we 22 considered. 23 MR. SUYEYASU: Do you have any concerns about impacts 24 upon the genetics of the natural-reproducing population? 25 DR. HANSON: We had concerns and issues raised about CAPITOL REPORTERS (916) 923-5447 1055 1 the potential for impacts from the use of Feather River 2 fish on the genetic integrity of a San Joaquin River stock. 3 That was an issue that was extensively discussed. 4 MR. SUYEYASU: Aside from the genetic integrity, 5 which I understand you to say is sort of a polluting of the 6 genetic stock, are there also issues regarding the lack -- 7 a loss of genetic variability within just the San Joaquin 8 River stock by using hatchery-reared fish? 9 DR. HANSON: That is primarily an issue associated 10 with the way the hatchery is actually operated and managed 11 and the way they select group stock, things of that nature. 12 The Department of Fish and Game, and Mr. Loudermilk can 13 certainly speak to this with more authority than I, but the 14 Department of Fish and Game has embarked on a program to 15 critically review their hatchery management practices. 16 They are establishing new policy guidelines and documents 17 for the operation and constraints on each of their 18 individual hatcheries specifically designed to reduce and 19 minimize the potential affects of hatchery operations on 20 the genetics of wild stocks. 21 MR. SUYEYASU: Mr. Loudermilk, if I could just ask 22 you a couple questions about that real quick. He's 23 described a program that you're undertaking right now to 24 study the genetic impacts on hatchery fish on the genetic 25 makeup of the natural-producing salmon population; is that CAPITOL REPORTERS (916) 923-5447 1056 1 correct? 2 DR. LOUDERMILK: Yes. I think Chuck was referring to 3 a Central Valley wide evaluation of our current hatchery 4 practices. It stems from the recent NMFS candidacy for 5 fall-run and late fall-run and winter-run and spring-run 6 issues as well. So we are embarking on an overall review 7 of our hatchery practices. In addition, as is included in 8 my testimony, we have received approval for funding through 9 the CalFed Category 3 Program to proceed with a more 10 definitive definition of characterizing the genetic nature 11 of stocks in the San Joaquin basin relative to the other 12 fall-run stocks in the Central Valley. 13 MR. SUYEYASU: So do you believe that the way the 14 hatcheries are currently operated there is a chance of 15 causing detrimental impacts on the natural salmon 16 populations? 17 DR. LOUDERMILK: I think recognizing that many of the 18 existing hatcheries in the Central Valley were constructed 19 many, many years ago with a lot less knowledge than we have 20 today, I think the simple answer is, yes, there is a 21 potential of that. 22 MR. SUYEYASU: Do you have any idea when the 23 operations of the hatcheries are going to change to start 24 taking better consideration of these genetic impacts? 25 DR. LOUDERMILK: I think so. There has been some CAPITOL REPORTERS (916) 923-5447 1057 1 change over time. But a simple answer to your question is: 2 I think it's going to take an evaluation of each individual 3 situation and consideration of all factors involved in each 4 of the watersheds involved with hatchery programs as well 5 as Central Valley wide issues. So I can't tell you when 6 things are going to change, but I would guess it would be 7 incremental over time. 8 MR. SUYEYASU: Do you believe that humans have the 9 knowledge to operate a hatchery program so as to not have 10 adverse genetic impacts on natural salmon populations? 11 DR. LOUDERMILK: I guess I'd have to say we're only 12 as good as the knowledge we have at the time to make the 13 decisions. 14 MR. SUYEYASU: Do you think we'll ever get enough 15 knowledge to eliminate all the impacts of the hatcheries? 16 DR. LOUDERMILK: I don't really know that. I think 17 also there's a matter of having to make practical 18 management decisions. It's unfortunate that we're talking 19 about a system that's been developed to the extent it has 20 been developed. And I think in terms of practical 21 management decisions, at all levels, we all have to 22 consider that in addition to the knowledge that we have at 23 the time of those decisions. 24 MR. SUYEYASU: I'd like to return to Dr. Hanson for 25 just a little bit. Do you agree with the summation that CAPITOL REPORTERS (916) 923-5447 1058 1 Dr. Herbold made yesterday that the release of 2 hatchery-reared salmon into the wild causes a dumbing down 3 of the wild population? 4 DR. HANSON: Based on strictly scientific and 5 quantitative information I can't make that conclusion. 6 Based on observations that we have made during the time 7 that hatchery fish are released into the river system, they 8 tend not to respond as quickly and their behavior appears 9 to be somewhat different than wild fish. 10 MR. SUYEYASU: And some of those hatchery-reared fish 11 do end up interbreeding with the wild fish; is that 12 correct? 13 DR. HANSON: Correct. 14 MR. SUYEYASU: And that breeding results in 15 offspring; is that correct? 16 DR. HANSON: Correct. 17 MR. SUYEYASU: So would you consider the use of 18 hatchery-reared fish in the wild to cause detrimental 19 impacts to the natural production of chinook salmon? 20 DR. HANSON: In some cases there is a potential for 21 that. Whether -- you know, we talked earlier about the 22 dumbing down of the wild fish from the hatchery stocks, it 23 is, certainly, not clear whether that is a very short-term 24 phenomenon, or a longer-term phenomenon. 25 To the extent that it's short-term and that those CAPITOL REPORTERS (916) 923-5447 1059 1 hatchery fish learn to respond to wild conditions, respond 2 to predators, other environmental factors, it may be a very 3 short-lived phenomenon and may not have any genetic 4 underpinning. It may be a result of their hatchery-rearing 5 experience. We simply don't know. 6 MR. SUYEYASU: Now, in making you comparison of 7 environmental equivalency between the Water Quality Control 8 Plan and VAMP, in your assessment of the protection 9 provided by a Water Quality Control Plan, did you consider 10 that there would be a barrier in place? 11 DR. HANSON: We did not consider that there would be 12 a barrier in place. The Water Quality Control Plan does 13 not specify that a barrier be installed at the head of Old 14 River. That's a separate program. However, we did assume 15 that that would be a direct component and a direct element 16 of the VAMP program. 17 MR. SUYEYASU: Now, in comparing the VAMP with the 18 Water Quality Control Plan, did you consider -- I'll 19 withdraw that question. I think you've already answered 20 it. 21 Now, do you believe there's any scientific value 22 to the flows called for in the San Joaquin River Agreement 23 of 2,000 csf in terms of conducting the VAMP experiment? 24 DR. HANSON: Scientific value? There is scientific 25 value to the extent that we can -- from purely a testing CAPITOL REPORTERS (916) 923-5447 1060 1 perspective, which is the scientific value that you're 2 referring to, one of the points that Dr. Kjelson made 3 yesterday with respect to some input provided by the 4 statisticians is that the greater the range of experimental 5 conditions the higher the likelihood that we'll be able to 6 actually detect differences in survival between those 7 conditions. 8 From that strict scientific perspective, having 9 conditions at 7,000 csf and 2,000 provides a relatively 10 wide range and may improve the overall scientific and 11 experimental ability to detect changes with our recapture 12 methods and our coded-wire tag studies, but that's a 13 scientific value. 14 MR. SUYEYASU: Why was it not included in the VAMP 15 experiment, the 2,000 csf? 16 DR. HANSON: Because the VAMP study was designed to 17 accomplish more than simply a scientific experiment. It 18 was also developed to provide protection. And when you 19 consider both the protective objective of VAMP and the 20 scientific objective of VAMP, it seemed to us a more 21 appropriate level to go to the 3200. 22 MR. SUYEYASU: So is it your opinion that the 2,000 23 csf inflow level at Vernalis was not sufficiently 24 protective? 25 DR. HANSON: It was our opinion that it would not be CAPITOL REPORTERS (916) 923-5447 1061 1 as protective as 3200 for our low end. We recognized that 2 there may be occasions, you know, where those lower ends 3 need to be exercised. But we didn't want to write that in 4 as our standard provision of the bounds within which VAMP 5 would be operated. 6 MR. SUYEYASU: What do you mean by, "Those lower 7 flows would need t be recognized"? 8 DR. HANSON: There will be occasions where there are 9 protracted and extended droughts that potentially occur. 10 And there simply may not be water available as there has 11 not been water released in the San Joaquin River under 12 those protracted conditions in historical years. We can't 13 preclude that that may not occur sometime in the future. 14 MR. SUYEYASU: In comparing VAMP to the Water Quality 15 Control Plan, did you consider that the Water Quality 16 Control Plan Vernalis flow standards would always be met? 17 DR. HANSON: My understanding from my discussions 18 with Bruce was that was one of the assumptions. 19 MR. SUYEYASU: And do you know if Bruce was -- you 20 said he brought some hydrology studies to you. Are those 21 the hydrology studies that were produced by Dr. Steiner, is 22 it? 23 DR. HANSON: I believe that Dan Steiner was certainly 24 one of the people that Bruce had consulted with, yes. He 25 had discussions with a number of other hydrologists as CAPITOL REPORTERS (916) 923-5447 1062 1 well. 2 MR. SUYEYASU: And it's your belief that in most of 3 those comparisons the Water Quality Control Plan standards 4 were always met? 5 DR. HANSON: That's my understanding. 6 MR. SUYEYASU: If you found out that the Water 7 Quality Control Plan standards were not always met, would 8 that change your opinion of equivalency? 9 DR. HANSON: No, because what I was actually looking 10 at and Bruce was reviewing was the results of modeling that 11 said what the flows would be expected to be during that 12 springtime period under all of the modeling assumptions. 13 So we looked at the result. We didn't critique and 14 establish our assessment based on the assumptions of 15 modeling, but rather on the results of that modeling. 16 MR. SUYEYASU: This may seem like a simple question, 17 I asked it yesterday: When are fish populations in most 18 danger of going extinct? 19 MR. O'LAUGHLIN: Objection. Asked and answered. 20 C.O. CAFFREY: I'm sorry? 21 MR. O'LAUGHLIN: Objection. Asked and answered. 22 That very same question was asked yesterday of Dr. Herbold. 23 I'd appreciate it if we not be repetitive in this process. 24 MS. KOEHLER: I just have an objection -- 25 THE COURT REPORTER: Hold on. CAPITOL REPORTERS (916) 923-5447 1063 1 C.O. CAFFREY: Wait a minute. Wait a minute. 2 Everybody is talking at once, we can't have that. 3 MR. JACKSON: Mr. Caffrey, I also believe that you 4 should overrule the objection. The objection is to a 5 question being asked of a different witness. If we are 6 going to allow the witnesses to be hidden by the panel 7 approach, certainly, you can't, I wouldn't think in terms 8 of fundamental fairness, restrict the questioner from 9 asking the same question of different individuals since 10 they represent different interests and may have different 11 opinions. 12 C.O. CAFFREY: All right. Ms. Koehler? 13 MS. KOEHLER: Same comment. 14 C.O. CAFFREY: Right, the objection is overruled. We 15 handled Mr. Herbold separately last night, yesterday. The 16 other thing that I would just point out is the technique 17 though. If you're going to be asking, this isn't just to 18 you, Mr. Suyeyasu, it's to everybody: 19 If you're going to be asking the same questions of 20 all the panelists, it's not necessarily in some chain of 21 logic that you're setting up, it's most appropriate to ask 22 the entire panel at the same time if you're going to give 23 that question to each of them. Which, of course, you 24 couldn't do last night because of the way we had set things 25 up. So go ahead with your question. The question may be CAPITOL REPORTERS (916) 923-5447 1064 1 answered. 2 MR. SUYEYASU: If I may just explain a little bit. I 3 will be asking all the panelists some of the same 4 questions, because a number of the panelists have made 5 separate determinations of the equivalency, and I would 6 like to understand the basis for that determination for 7 each panelist. 8 C.O. CAFFREY: I just said that to the extent that 9 it's not to the extent of setting up some logic pattern, 10 it's best to scatter-gun the question. But I know you'll 11 use your best judgment and we will allow it if it's in the 12 best context to be asked each time. 13 MR. SUYEYASU: Would you like me to repeat the 14 question? 15 DR. HANSON: Please. 16 MR. SUYEYASU: At what flow levels are San Joaquin 17 fall-run chinook salmon populations most at danger of going 18 extinct? 19 DR. HANSON: That's a different question than you 20 asked first. 21 MR. SUYEYASU: Well, respond to that question. 22 DR. HANSON: All right. Based on the information 23 that we currently have, the population of San Joaquin 24 salmon appears to fluctuate substantially. The lowest 25 points in those fluctuations tend to occur coincident with CAPITOL REPORTERS (916) 923-5447 1065 1 the period of low flows, during the period when that 2 particular cohort is reproducing, when their eggs are 3 incubating and during the period that their juvenile fry 4 and smolts are outmigrating. 5 MR. SUYEYASU: Now, in comparing the VAMP to the 6 Water Quality Control Plan in making your equivalency 7 determination, did you consider that the 2,000 csf flows 8 would be provided in some years? 9 DR. HANSON: I don't know specifically the answer to 10 that. 11 MR. SUYEYASU: Is your -- the 2,000 csf flows are not 12 part of VAMP; is that correct? 13 DR. HANSON: They are not. 14 MR. SUYEYASU: But you've compared VAMP to the Water 15 Quality Control Plan; is that correct? 16 DR. HANSON: Correct. 17 MR. SUYEYASU: But you're not quite sure if in your 18 comparison the 2,000 csf was part of the hydrology studies 19 that you looked at? 20 DR. HANSON: My understanding is that they are not, 21 but I don't know specifically. 22 MR. SUYEYASU: Do you think that there's a 23 significant -- there's incrementally a significant danger 24 of having Vernalis flows at 2,000 csf as compared to the 25 lowest flows called for in the Water Quality Control Plan? CAPITOL REPORTERS (916) 923-5447 1066 1 DR. HANSON: There is a likelihood that there will be 2 an incremental decrease for potential impact as flows are 3 reduced. One of the purposes of the VAMP program is to try 4 to provide some better information to allow us to evaluate 5 what those incremental changes are. 6 MR. SUYEYASU: Now, how much do you think that the 7 protection that is to be afforded to the fish by the San 8 Joaquin River Agreement is, in essence, endangered by going 9 down to that 2,000 csf level? 10 DR. HANSON: In the absence of having those modeling 11 results and being able to actually scrutinize that, I 12 really don't actually have an assessment of how much that 13 would change, or how frequently that would occur. When we 14 reviewed the VAMP, we reviewed it as a collective package 15 of actions. 16 It was a combination not only of reviewing the 17 flow, although that was certainly one element, but it was 18 looking at a variety of elements including the exports and 19 the head of Old River barrier, but I haven't done a 20 specific analysis of that particular issue. And I'm 21 hesitant to offer an unsupported guess. 22 MR. SUYEYASU: Okay. But you did say that 23 2,000 csf definitely causes significantly more detriments 24 to the fish populations than 31,000 or 36,000 -- I mean 25 3100 or 3600 csf? CAPITOL REPORTERS (916) 923-5447 1067 1 DR. HANSON: I would not be as definitive as your 2 question. Our likelihood is that we think based on the 3 results that Ms. Brandes has presented and other 4 information, that as flows are reduced there is a 5 likelihood that survival is reduced. The -- whether 6 there's a threshold affect at some specific flow level, or 7 whether it's a linear response how the fish respond to the 8 interaction between flow and water temperature, as 9 Dr. Kjelson has pointed out, those are all very complex 10 issues. And those are some of the things that we are 11 hoping to address and evaluate as part of VAMP. I'm 12 hesitant to offer a scientifically unsupported guess at 13 this time in the absence of the information we hope to 14 gain. 15 MR. SUYEYASU: If you were charged with managing the 16 fish populations on the San Joaquin River and you were 17 given the chance to increase flows by a thousand csf in a 18 year that otherwise would have had a 7,000 csf flow at 19 Vernalis in exchange for taking away a thousand csf from a 20 flow year that otherwise would be at 3,000 csf -- 21 THE COURT REPORTER: Okay. Say the last part again, 22 "Taking away a thousand csf from." 23 MR. SUYEYASU: From a year that would otherwise have 24 a flow of 3,000 csf, would you make that trade? 25 DR. HANSON: In the absence of any real analyses, I CAPITOL REPORTERS (916) 923-5447 1068 1 don't believe that I would make that trade. 2 MR. SUYEYASU: And why not? 3 DR. HANSON: Because it's my opinion that there are 4 flows at the low end that are important for providing the 5 outmigration corridor and the conditions for those fish to 6 come from the tributaries. I think that at the low end 7 that tends to be a more critical response to flow than it 8 does at the higher flow levels. And so just based on 9 nothing other than my initial reaction to your question, I 10 don't believe that I would make that tradeoff. 11 MR. SUYEYASU: You say there's a more critical 12 response to flows at the low end. Could you elaborate on 13 that just a little bit more? 14 DR. HANSON: Certainly. For example, if we go to a 15 sample where the flow is a thousand csf and we compare that 16 to a flow of 10,000 csf and in your hypothetical you ask 17 me, "Am I willing to give up a thousand csf?" Okay, if I 18 go from ten to nine I haven't done much to the fishery. If 19 I go from a thousand to zero, then the response of the 20 fishery is likely to be greater. 21 MR. SUYEYASU: Mr. Kjelson, if I could ask you a few 22 questions. 23 C.O. CAFFREY: Mr. Suyeyasu, this is a housekeeping 24 matter, how much more time do you think you're going to 25 need for your cross-examination? I'm just trying to figure CAPITOL REPORTERS (916) 923-5447 1069 1 out when to break. 2 MR. SUYEYASU: Significant amount of time probably. 3 C.O. CAFFREY: All right. We'll take a break now and 4 be back here at about 20 to. 5 (Recess taken from 10:25 a.m. to 10:39 a.m.) 6 C.O. CAFFREY: All right. We're back on the record. 7 Are all of our panelists here? 8 DR. LOUDERMILK: Not yet. 9 C.O. CAFFREY: Who's missing, I'm sorry? 10 DR. HANSON: Marty. 11 C.O. CAFFREY: We thought you went fishing, 12 Mr. Kjelson. 13 DR. KJELSON: I tried to hide. 14 C.O. CAFFREY: All right. Thank you. Please 15 proceed, Mr. Suyeyasu. 16 MR. SUYEYASU: Thank you. Mr. Kjelson -- 17 DR. KJELSON: Yeah. 18 MR. SUYEYASU: -- you also believe that the Vernalis 19 Adaptive Management Plan provides an equivalency level of 20 protection to the Water Quality Control Plan? 21 DR. KJELSON: Yes, I do. 22 MR. SUYEYASU: All right. Do you believe the San 23 Joaquin River Agreement provides an equivalency level of 24 environmental protection to the Water Quality Control Plan? 25 DR. KJELSON: I don't understand the difference. But CAPITOL REPORTERS (916) 923-5447 1070 1 as Dr. Hanson referred, my focus has been on comparing what 2 is in VAMP versus the Water Quality Control Plan. I did 3 not get into evaluating the agreement itself in that 4 context. 5 MR. SUYEYASU: Now, in making your comparison between 6 the Water Quality Control Plan and VAMP, did you consider 7 that a barrier at the head of Old River would be in place 8 under your Water Quality Control Plan side of the ledger? 9 DR. KJELSON: No. 10 MR. SUYEYASU: And why not? 11 DR. KJELSON: Because if you look at the Water 12 Quality Control Plan objectives it does not include the 13 head of Old River barrier other than recommending that the 14 barrier be studied. 15 MR. SUYEYASU: Does the plan say anything other than, 16 "Recommend that the barrier be studied"? 17 DR. KJELSON: Not to my knowledge. Although I could 18 look at the plan and I believe it's on -- let me find the 19 page. On page 35 under the last section on 20 "Recommendations to Improve Habitat Conditions," it 21 infers -- on number 5 on page 35 it says, "Evaluate the 22 effectiveness of barriers." And I believe that includes 23 the head of Old River barrier. 24 MR. SUYEYASU: Does it make any recommendation to, 25 actually, install the barrier? CAPITOL REPORTERS (916) 923-5447 1071 1 DR. KJELSON: I don't believe so. 2 MR. SUYEYASU: If it did make a recommendation to 3 install the barrier, would that change your opinion of 4 equivalency between the Water Quality Control Plan and 5 VAMP? 6 DR. KJELSON: No, I don't believe so. 7 MR. SUYEYASU: Would it make your assessment of the 8 environmental protection of the Water Quality Control Plan 9 a little bit higher? Do you think the Water Quality 10 Control Plan would provide more benefits? 11 DR. KJELSON: Yes. 12 MR. SUYEYASU: Are you -- excuse me. Are you aware 13 of any other processes, government processes that might be 14 recommending the installation of a barrier at the head of 15 the Old River? 16 DR. KJELSON: Yes. 17 MR. SUYEYASU: And what processes are those? 18 DR. KJELSON: The Central Valley Project Improvement 19 Act has an element in it that refers to the use of the head 20 of Old River barrier. 21 MR. SUYEYASU: And do you have any personal knowledge 22 as to how that -- the Central Project Improvement Act head 23 of Old River barrier recommendation is proceeding? 24 DR. KJELSON: My personal knowledge is that it is not 25 basically on hold. I think that's my basic knowledge. CAPITOL REPORTERS (916) 923-5447 1072 1 There's, certainly, a program manager relative to that, but 2 I don't believe there are any funds that have been directly 3 obligated to install that barrier under the CVPIA. 4 MR. SUYEYASU: Do you know why it's on hold? 5 DR. KJELSON: No, I do not. 6 MR. SUYEYASU: Is that program -- does that come 7 through the AFRP Central Valley Project Improvement Act? 8 DR. KJELSON: No, it doesn't. AFRP is under Section 9 B-1, and the head of Old River barrier is another section. 10 MR. SUYEYASU: Now, in making your comparison between 11 the Water Quality Control Plan flows and the VAMP flows, 12 did you use an one-to-one ratio under the Water Quality 13 Control Plan flows? 14 DR. KJELSON: Yes, I believe I testified to that 15 fact, or that approach. 16 MR. SUYEYASU: And did you -- in making that 17 comparison did you also assume that the Water Quality 18 Control Plan standards would always be met? 19 DR. KJELSON: I'm sorry, I may be a little confused. 20 Would you restate it, or -- 21 MR. SUYEYASU: Well, you made an assessment of the 22 environmental equivalency between the Water Quality Control 23 Plan and VAMP? 24 DR. KJELSON: Right. 25 MR. SUYEYASU: And so you looked at the flows called CAPITOL REPORTERS (916) 923-5447 1073 1 for by the Water Quality Control Plan? 2 DR. KJELSON: Right. 3 MR. SUYEYASU: In making your comparison, did you 4 assume that those flows called for in the Water Quality 5 Control Plan would always be met? 6 DR. KJELSON: Certainly. 7 MR. SUYEYASU: So in years that would be critical 8 years, I don't have the exact number, but you assumed that 9 either 3100 csf or 3600 csf would be provided, something on 10 that order of magnitude; is that correct? 11 DR. KJELSON: Yes. But as I recall the Water Quality 12 Control Plan, yes, in a critical year it would be either 13 3110, or 3540 by the Water Quality Control Plan. 14 MR. SUYEYASU: So you assumed in critical years those 15 flows would always be provided? 16 DR. KJELSON: Yes. 17 MR. SUYEYASU: Now, if -- excuse me. In looking at 18 your San Joaquin River Agreement -- or excuse me, the VAMP 19 side of the ledger, did you assume that the target flows 20 would always be met? 21 DR. KJELSON: Yes. 22 MR. SUYEYASU: And did you also assume that the 23 targets would never change during the course of the 24 agreement? 25 DR. KJELSON: As I stated yesterday talking about CAPITOL REPORTERS (916) 923-5447 1074 1 flexibility in our experimental design, I assume that we 2 would stay within the range of the target flows of VAMP. 3 There may be some adjustments by one flow to other, and so 4 forth as I said yesterday, but I did believe that they 5 would be met. 6 MR. SUYEYASU: If it were possible that the flows -- 7 the target flows or the export ratios could be changed to a 8 lower level of protection than that currently called for, 9 would that in any way change your opinion as to the level 10 of protection provided by the -- provided by VAMP? 11 DR. KJELSON: Well, it would, but I never assumed 12 that they would go below the target flow range and the 13 export levels committed to by the agreement. 14 MR. SUYEYASU: In assessing the flows under the San 15 Joaquin River Agreement did you consider at all that the 16 parties to the agreements might change their water 17 consumption patterns to change the existing flows? 18 DR. KJELSON: No, I didn't consider that at all. 19 MR. SUYEYASU: If it were possible for the parties to 20 the agreement to actually lower the existing flows by their 21 water consumption patterns, and thereby lower their target 22 flows, would that affect your opinion as to the equivalency 23 of the two? 24 DR. KJELSON: Well, certainly, it could. But I think 25 that's a hypothetical assumption and not reflective of what CAPITOL REPORTERS (916) 923-5447 1075 1 I believe the agreement intends. 2 MR. SUYEYASU: So it is your belief that the 3 agreement did not intend for anybody to be able to adjust 4 what the existing flows were? 5 DR. KJELSON: I'd have to look at the agreement. I 6 believe there is a section in there that talks about 7 adjusting, but if my recollection is right it's on the 8 conservative side. So that there -- the agreement does not 9 lower to a lower protection level. It does not allow that. 10 MR. SUYEYASU: So it's your opinion that the 11 agreement will not let the protection level go down, is 12 that what you're saying? 13 DR. KJELSON: Right. 14 MR. SUYEYASU: And you used that assumption in making 15 your determination of equivalency; is that correct? 16 DR. KJELSON: Certainly. 17 MR. SUYEYASU: And I'm not sure my earlier question 18 was answered, so I'll try to clarify it. Did you consider 19 at all that parties to the agreement could actually change 20 how much water is going down the river during the 21 pulse-flow period in such a way as to change the 22 determination of existing flow? 23 DR. KJELSON: No, I didn't get involved in that 24 assumption. 25 MR. SUYEYASU: Now, in making your determination of CAPITOL REPORTERS (916) 923-5447 1076 1 environmental equivalency, did you consider at all the 2 impacts of releasing hatchery-reared fish into the wild? 3 DR. KJELSON: Not in my assessment of equivalency. 4 MR. SUYEYASU: But releasing hatchery-reared fish 5 into the wild is a part of VAMP; is that correct? 6 DR. KJELSON: Yes. And for that matter would be 7 allowed under the Water Quality Control Plan, too. 8 Although it doesn't address it specifically other than some 9 of their comments evaluating additional knowledge, I 10 believe, as in some of those comments made at the back of 11 the plan where it talked to recommendations for habitat 12 improvement. 13 MR. SUYEYASU: Okay. So you would say that the 14 release -- I guess are you suggesting that the release of 15 hatchery-reared salmon doesn't cause any sort of net 16 decline in the level of protection offered by VAMP, because 17 that might also happen under the Water Quality Control 18 Plan? 19 DR. KJELSON: I think that's a very general statement 20 that I would agree to. 21 MR. SUYEYASU: Now, do you think that -- also that 22 the benefits of the lower export/import ratios under VAMP 23 might be limited by the fact that the biological opinion 24 might be implemented under the Water Quality Control Plan 25 in conjunction with the Water Quality Control Plan? CAPITOL REPORTERS (916) 923-5447 1077 1 DR. KJELSON: I don't know if I followed all your 2 logic. You said about three major things there. Would you 3 repeat that? I think I know where you're going. Clarify 4 it. 5 MR. SUYEYASU: Well, you made -- you suggested that 6 under the Water Quality Control Plan it's also possible 7 that they might do the same hatchery measures as called for 8 under VAMP. I'm wondering if in making -- if you've 9 considered the fact that the biological opinion for the 10 Delta smelt might also be implemented at the same time as 11 the Water Quality Control Plan as comparing that to VAMP? 12 DR. KJELSON: In my comparison for equivalency 13 purposes I did not consider the biological opinion in that 14 analysis. 15 MR. SUYEYASU: If you considered that biological 16 opinion in your analysis, if you assumed that it was 17 implemented at the same time as the Water Quality Control 18 Plan, how would that change your determination of 19 environmental equivalency? 20 DR. KJELSON: It would make the comparison relative 21 to export and the I/E ratio more similar between VAMP and 22 the Water Quality Control Plan in combination with the 23 biological opinion. 24 MR. SUYEYASU: Do you think that that similarity 25 between the import/export ratios between the Water Quality CAPITOL REPORTERS (916) 923-5447 1078 1 Control Plan with the biological opinion and the VAMP would 2 change your total determination of equivalency protection 3 between the two programs? 4 DR. KJELSON: No, because I think the head of Old 5 River barrier has a significant benefit to protecting 6 salmon as they're outmigrating through the Delta. 7 MR. SUYEYASU: If I could just pose one more 8 hypothetical to you: If the Water Quality Control Plan 9 were implemented, the biological opinion was still being 10 implemented and a barrier was installed at the head of Old 11 River, would that provide -- would VAMP provide an 12 equivalent level of protection with those three measures? 13 DR. KJELSON: I think in general it would. As we've 14 spoke before, there is some differences in the flows. And 15 I've testified that, in my written testimony, how a change 16 in flow, the difference in flows between the Plan and the 17 VAMP are slightly different in some years. And other 18 witnesses have commented on that issue, also. 19 MR. SUYEYASU: So is it your -- do you believe that 20 the flows will generally be higher under VAMP than under 21 the Water Quality Control Plan? 22 DR. KJELSON: Well, as I stated yesterday it appears 23 from my very crude analysis of the unstandardized flows 24 that VAMP could be slightly lower at some time. But at 25 other times it may be a little higher. So I'm hesitant to CAPITOL REPORTERS (916) 923-5447 1079 1 draw a complete conclusion, because I did not do the 2 standardization. I think Dr. Herbold did a better job of 3 attempting to do that. 4 MR. SUYEYASU: In your testimony you said that the 5 lowest VAMP flow is 3200 csf; is that correct? 6 DR. KJELSON: Yes. 7 MR. SUYEYASU: Now, in making this comparison of 8 flows between the Water Quality Control Plan and VAMP, did 9 you use 3200 csf as your lowest flow rate on the VAMP side 10 of the ledger? 11 DR. KJELSON: Yes. 12 MR. SUYEYASU: You didn't consider what would happen 13 if a 2,000 csf flow rate were implemented? 14 DR. KJELSON: No. 15 MR. SUYEYASU: Would that change your determination 16 of equivalency at all if a 2,000 csf flow rate were 17 implemented during critical years? 18 DR. KJELSON: Again, it would determine on what other 19 assumptions, or hypothetical assumptions you're adding on 20 to it. If you're adding the head of Old River barrier and 21 you're adding the biological opinion to the Water Quality 22 Control Plan it might have a slight change, in my opinion, 23 of equivalency. 24 MR. SUYEYASU: What would that change of opinion be? 25 DR. KJELSON: Well, as I think Dr. Hanson and myself CAPITOL REPORTERS (916) 923-5447 1080 1 and others in our written or oral testimony have said, or 2 at least inferred, trying to make a very quantitative 3 determination of equivalency is very difficult, because 4 there are a lot of things and uncertainties as to response 5 of the fish and the significance of a small -- small 6 change. 7 In my written testimony I did make an attempt to 8 note a potential change in survival with a change -- some 9 increment of change in flow based on Ms. Brandes's 10 equation. And I believe I if I recollect my testimony 11 properly, that data suggested that, for example, a decrease 12 in 500 csf I think would change -- change the survival 13 something like 8 percent. I'm not sure I'm remembering 14 that properly, but I can refer to the page that I did that. 15 I think it's on page 7 of my testimony, Exhibit 2. I 16 simply used the example from her equation of 500 decrease 17 in flow say from 35 to 3,000 there was an eight-percent 18 decrease in absolute survival. 19 MR. SUYEYASU: If I could just get back to the 20 question I asked, pose a hypothetical to you. Let's assume 21 that the Water Quality Control Plan flows are all met, that 22 a barrier is in place on the head of the Old River, and the 23 Delta smelt biological opinion is being implemented: 24 Do you think that VAMP being implemented with a 25 2,000 csf as the lowest flow level, would that have CAPITOL REPORTERS (916) 923-5447 1081 1 environmental protection of equivalency to the other 2 hypothetical? 3 DR. KJELSON: I'm not sure where we're going at all 4 with these hypotheticals, but that decrease in flow could 5 have a potential affect on the equivalency determination. 6 MR. SUYEYASU: So what you're saying is they may not 7 be equivalent with that 2,000 csf as the lowest flow? 8 DR. KJELSON: What I'm saying is a lower flow is 9 likely to have some affect on the smolt survival. I'm not 10 sure I can go so far in a legal sense of equivalency, 11 because that isn't my area of expertise. 12 MR. SUYEYASU: So you can't make a -- are you saying 13 that you're not qualified to make a determination of 14 equivalency between my hypothetical and the VAMP with the 15 2,000 csf lowest flow? 16 DR. KJELSON: I think that's what I'm saying, 17 particularly, when I think you're speaking into a legality 18 issue that I don't believe I'm qualified to make a 19 determination. 20 MR. SUYEYASU: When I asked you at the beginning 21 that -- whether or not the VAMP was equivalent in its 22 environmental protection to the Water Quality Control Plan, 23 what type of determination were you making at that point as 24 distinguished from what I'm asking now? 25 DR. KJELSON: Well, at that time I didn't have all CAPITOL REPORTERS (916) 923-5447 1082 1 the hypotheticals that you had in it. I qualified it 2 exactly the way the Board plan alone stood and how the VAMP 3 stood alone. And I based it purely on my biological 4 knowledge and in a straight-forward comparison in that 5 manner. 6 MR. SUYEYASU: So what is your -- what do you feel 7 you're not qualified to answer about my hypothetical 8 question? Is it the term "equivalency"? 9 DR. KJELSON: I think it is. 10 MR. SUYEYASU: Now, you felt that you were qualified 11 to determine what was in my earlier question; is that 12 correct? 13 DR. KJELSON: Yes, in the context I just described. 14 MR. SUYEYASU: So you can make an equivalency 15 determination, it just depends on the hypothetical; is that 16 correct? 17 MR. BIRMINGHAM: I'm going to object. 18 MR. O'LAUGHLIN: There is no hypothetical. He's 19 misstating the testimony. He's already testified that he 20 compared the Water Quality Control Plan to the San Joaquin 21 River Agreement. What he's asking the witness to do is 22 assume that these other things are going to come to past. 23 And what Mr. Kjelson has testified to is he's not 24 going to make a legal assumption that these other things 25 such as the installation of the barrier, the Delta smelt CAPITOL REPORTERS (916) 923-5447 1083 1 biological opinion, and the full implementation of the 1995 2 Water Quality Control Plan are going to take place. 3 MR. SUYEYASU: I think that in a hypothetical -- 4 C.O. CAFFREY: Do you want to respond? 5 MR. SUYEYASU: In a hypothetical question we are 6 allowed to assume that certain things are going to come to 7 past. That's why it's called "hypothetical." 8 MR. O'LAUGHLIN: That's correct, but what the witness 9 is testifying to is that he doesn't feel he's qualified to 10 make the assumption on the question of equivalency in 11 regards to that, because he's not a lawyer as to whether or 12 not it will or will not occur. And if it's -- because he 13 has -- not on that basis, but otherwise what he said is as 14 a biologist he's made an analysis, very straight-forward 15 analysis between the two. And he hasn't done any other 16 analysis. So the question has been asked and answered. 17 C.O. CAFFREY: Mr. Kjelson, are you having trouble 18 with the question? 19 DR. KJELSON: No, I understand the question. I'm not 20 sure I understand what all this meaning of "equivalency" is 21 in the context -- 22 C.O. CAFFREY: Then, that tells me you don't 23 understand the question. I'm getting a little confused 24 myself. Mr. Jackson? 25 MR. JACKSON: Yes, Mr. Caffrey, I think it's easy to CAPITOL REPORTERS (916) 923-5447 1084 1 understand why everybody is confused. Mr. -- Mr. Kjelson 2 obviously believes the word "equivalency" is a legal term. 3 I don't know where it comes from. It's not in any law that 4 I ever read -- 5 C.O. CAFFREY: So in that case -- 6 MR. JACKSON: -- I think it's the problem of the 7 hearing -- 8 C.O. CAFFREY: In that case -- 9 MR. JACKSON: What does "equivalency" mean? 10 C.O. CAFFREY: Well, we can ask questions with regard 11 to that word and people can answer to the best of their 12 ability. I guess I just want to remind the witnesses that 13 we're not in church, we're in a hearing. You do the best 14 job you can with the question and that's the end of it. 15 And if you don't know the answer, say so, and that's fine. 16 I'm going to sustain the objection, because I 17 think the questions, at least from my part, are getting 18 rather complicated and I'm having some difficulty with 19 them. So maybe you can take another shot at it. I'm sorry 20 I didn't have the mic on. Hope you could all hear me up 21 until now. I think the witness is having some difficulty 22 with the question, and I think he's a very polite gentleman 23 and he's having some reluctance to, frankly, say so. Why 24 don't we try it again, or go on to something else? 25 MR. SUYEYASU: I will try just a little bit more. CAPITOL REPORTERS (916) 923-5447 1085 1 You believe that VAMP provides an equivalent level of 2 protection to the Water Quality Control Plan; is that 3 correct? 4 DR. KJELSON: Yes, in the context of how I testify in 5 written and verbal. 6 MR. SUYEYASU: In saying that it is equivalent, what 7 do you mean by that? 8 DR. KJELSON: Well, I believe in the general 9 environmental conditions that VAMP is to provide, as 10 specified in this agreement in Appendix A and B, it will 11 provide the habitat conditions equivalent, or at least as 12 equivalent as those afforded by the habitat conditions that 13 would result from implementing the '95 Water Quality 14 Control Plan. 15 MR. SUYEYASU: I'm afraid in your definition of 16 equivalency the word "equivalent" is in the middle of it. 17 Can you define the "equivalent" without using the word 18 "equivalent"? 19 DR. KJELSON: The same as, the same habitat 20 conditions. Is that -- 21 MR. SUYEYASU: That's okay. Now, do you think that 22 the Vernalis Adaptive Management Program, I might quote 23 you, "Provides the same environmental protection conditions 24 as the full implementation of the Water Quality Control 25 Plan in conjunction with the installation of the barrier at CAPITOL REPORTERS (916) 923-5447 1086 1 the head of Old River and in conjunction with the current 2 Delta smelt biological opinion"? 3 DR. KJELSON: I just testified, yes, in general I 4 believe that with the qualifications I had on the flow. 5 And we talked about that. And there's a little uncertainty 6 as to what the flow will be depending on a whole variety of 7 factors. 8 MR. SUYEYASU: So given the previous hypothetical, if 9 the lowest flow within the VAMP were to be 2,000 csf you 10 would not be able to make a determination that provided the 11 environmental protective condition the same as the 12 hypothetical? 13 DR. KJELSON: With all your hypothetical assumptions 14 laid on it, it would have a slight decrease in survival, as 15 I stated. And, hence, a potential to make it less 16 equivalent than the VAMP. 17 MR. SUYEYASU: Thank you. Now, if we can just move 18 on to another subject, Mr. Kjelson, you believe that the 19 Vernalis Adaptive Management Plan is designed to achieve, 20 in conjunction with other efforts, the achievement of the 21 narrative doubling objective; is that correct? 22 DR. KJELSON: That is a stated objective of VAMP. 23 But as I testified yesterday, I don't believe we know that 24 objective is being met. That will be part of the output of 25 VAMP and other information that we will be gaining with our CAPITOL REPORTERS (916) 923-5447 1087 1 monitoring evaluation and other restoration measures. 2 MR. SUYEYASU: So, currently you do not believe that 3 the conditions provided by VAMP in conjunction with other 4 measures will provide a doubling of the natural production 5 of chinook salmon in the San Joaquin basin? 6 DR. KJELSON: That's correct, I do not know that. 7 MR. SUYEYASU: Mr. Kjelson, are you familiar with the 8 working paper on restoration needs of the Anadromous Fish 9 Restoration Plan? 10 DR. KJELSON: Yes, I am. 11 MR. SUYEYASU: And how are you familiar with that 12 paper? 13 DR. KJELSON: As I'm program manager of the 14 Anadromous Fish Restoration Program, of course, the 15 program -- that was a document that we published from the 16 program. 17 MR. SUYEYASU: And what was the goal of that 18 document? 19 DR. KJELSON: I don't know if I can, verbatim, give 20 you the goal. But, basically, it was our attempt to draw 21 together a wide range of anadromous fish restoration 22 biologists and other expertise to provide the best 23 professional judgment as to the habitat conditions we felt 24 would be needed to achieve the goal to at least double the 25 natural production of anadromous fish in the Central CAPITOL REPORTERS (916) 923-5447 1088 1 Valley. 2 MR. SUYEYASU: Now, do you know if the flows and 3 exports provided by the Vernalis Adaptive Management Plan 4 are equal to those called for in the AFRP for the San 5 Joaquin River at Vernalis? 6 MR. O'LAUGHLIN: Objection. AFRP what? 7 MR. SUYEYASU: For the AFRP working paper on 8 restoration needs. 9 DR. KJELSON: I don't believe they reach the levels 10 in the working paper. 11 MR. SUYEYASU: So would it be your assessment that 12 VAMP provides a lower level of protection than called for 13 in the working paper on restoration needs of the Anadromous 14 Fish Restoration Program? 15 DR. KJELSON: I think in general that's correct. I 16 would call -- clarify for everyone's understanding two key 17 documents from the Anadromous Fish Restoration Program. 18 One is the draft anadromous fish restoration plan that we 19 published last May. And, then, we also have the working 20 paper, which you're referring to. And they are two 21 separate documents. 22 MR. SUYEYASU: And the working paper outlines what a 23 collection of biologists have concluded are the minimum 24 conditions required to achieve a doubling of the natural 25 production of chinook salmon; is that correct? CAPITOL REPORTERS (916) 923-5447 1089 1 DR. KJELSON: Basically, yes. It includes a whole 2 variety of restoration efforts. 3 MR. SUYEYASU: And the flows provided in the Vernalis 4 Adaptive Management Plan are lower than those called for in 5 the working paper; is that correct? 6 DR. KJELSON: That is my recollection that that's 7 true. 8 MR. SUYEYASU: Do you have any recollection of how 9 much lower they are, just roughly? 10 DR. KJELSON: No. I -- it's been sometime since we 11 published that. And I would rather look at the working 12 paper itself. 13 MR. SUYEYASU: Now, considering the fact that VAMP 14 provides lower flows than those called for in the working 15 paper on restoration needs, do you think that the Vernalis 16 Adaptive Management Plan is designed to achieve a 17 doubling -- a doubling of the natural production of chinook 18 salmon? 19 DR. KJELSON: I don't think it's designed to achieve 20 doubling standing alone. As you're well-aware there are 21 three objectives of the San Joaquin River Agreement and 22 VAMP. It does not, in itself, say that it guarantees 23 doubling of anadromous natural chinook salmon in the San 24 Joaquin basin. 25 MR. SUYEYASU: Do you believe that the VAMP -- the CAPITOL REPORTERS (916) 923-5447 1090 1 flows called for in VAMP as well as the export limits kin 2 in conjunction with other measures taken in the basin 3 achieve a doubling of the natural production in the basin? 4 MR. BIRMINGHAM: Objection. 5 C.O. CAFFREY: Go ahead, Mr. Birmingham. 6 MR. BIRMINGHAM: The question is a hypothetical and 7 it doesn't state whether the other measures are being 8 taken. 9 C.O. CAFFREY: It also -- I would add to that, it 10 also sounds exactly like the question I heard a little 11 while ago. I think the question has been asked. I'm going 12 to sustain the objection. 13 MR. SUYEYASU: Well -- 14 C.O. CAFFREY: I realize that -- I just want to make 15 clear to you, Mr. Suyeyasu, that a number of the questions 16 while others may think sound a lot alike, I do see the 17 distinction in these questions. They're a fine distinction 18 but, I do feel that one has been asked and answered. 19 MR. SUYEYASU: If you would hold on just one second. 20 If I could ask a few questions of Mr. Morhardt. 21 DR. MORHARDT: Yes. 22 MR. SUYEYASU: Now, in -- are you familiar with the 23 Exhibit 3.1.3 of your testimony? Actually, I brought an 24 overhead of that. Would you put it up? 25 DR. MORHARDT: Yes, I am. CAPITOL REPORTERS (916) 923-5447 1091 1 MR. SUYEYASU: Now, do you believe that in-stream 2 flow levels at Vernalis have an affect on the level of 3 escapement for San Joaquin chinook salmon? 4 DR. MORHARDT: There's some evidence that they may 5 particularly when high flows are also incorporated into the 6 analysis. 7 MR. SUYEYASU: Now, referring to Figure 3.1.3, do you 8 believe that variation in San Joaquin River salmon 9 escapement due to unknown causes is large in comparison 10 to variation associated with flows at Vernalis; is that 11 correct? 12 DR. MORHARDT: Yes, I do. 13 MR. SUYEYASU: Now, what factors lead you to conclude 14 that variations due to unknown causes is large in 15 comparison to variations associated with flow? 16 DR. MORHARDT: The large scatter of points on this 17 diagram around where they originate. 18 MR. SUYEYASU: Now, Figure 3.1.3 specifically 19 compares escapement levels on the -- to San Joaquin River 20 flow levels at Vernalis two-and-a-half years before; is 21 that correct? 22 DR. MORHARDT: That's correct. 23 MR. SUYEYASU: And all San Joaquin River fall-run 24 salmon do not return to spawn two-and-a-half years after 25 they outmigrate; is that correct? CAPITOL REPORTERS (916) 923-5447 1092 1 DR. MORHARDT: That's correct. 2 MR. SUYEYASU: On average only about half return to 3 spawn after two-and-a-half years; is that correct? 4 DR. MORHARDT: I'm not sure of the exact percentage 5 It, certainly, varies from year-to-year. 6 MR. SUYEYASU: In your testimony you stated that, 7 "Overall about half the spawning escapement -- 8 THE COURT REPORTER: Okay. Start that one over and 9 slow down a little bit. 10 MR. SUYEYASU: In your testimony you stated that, 11 "Overall about half the spawning escapement are 12 three-year-olds." Do you believe that's correct? 13 DR. MORHARDT: It may well be. 14 MR. SUYEYASU: But you think -- that's is in your 15 testimony; is that correct? 16 DR. MORHARDT: Yes, it is in my testimony. 17 MR. SUYEYASU: And the -- 18 DR. MORHARDT: I didn't actually look at it. What 19 page is it? 20 MR. SUYEYASU: It's on page two, second paragraph. 21 DR. MORHARDT: Thank you. Saved by the bell. 22 C.O. CAFFREY: I was just thanked by the witness. Is 23 that 60 minutes? That was 60 minutes. Mr. Suyeyasu, do 24 you have any idea how much more time you're going to need? 25 MR. SUYEYASU: Maybe an hour. CAPITOL REPORTERS (916) 923-5447 1093 1 C.O. CAFFREY: Another hour. 2 MR. SUYEYASU: Possibly. 3 MS. LEIDIGH: Why? 4 C.O. CAFFREY: Let's remind you at a half an hour and 5 see if we can keep it crisp. 6 MR. SUYEYASU: Okay. 7 C.O. CAFFREY: This witness is a little more 8 responsive I think in terms of how quickly he's answering. 9 We'll remind you, again, in half an hour and see how you're 10 doing. 11 MR. SUYEYASU: Thank you. 12 C.O. CAFFREY: I just want to point out something, we 13 were certainly -- you know, in this phase what is relevant 14 it's not always easy to determine. And I have to look to 15 the goodwill of the questioners and the answerers to try to 16 keep things crisp and relevant. Otherwise, we'll be here 17 for a long, long time, which we're probably going to be 18 anyway. 19 I also recognize that this is, perhaps, the only 20 chance for certain parties to try to convince the Board 21 that they don't want us to go on with a Phase II-A. So I 22 recognize that, but taking that all into consideration, 23 please, be as brief and crisp as we all can, all of us. 24 All right. Thank you. 25 MR. SUYEYASU: Okay. In the interest of crispness CAPITOL REPORTERS (916) 923-5447 1094 1 I'm going to try to get to the conclusion without going 2 through the middle here. I'll see if that helps. 3 All right. Do you have any doubts about your 4 conclusion reached that you believe variations in San 5 Joaquin River salmon escapement due to unknown causes is 6 large in comparison to variation associated with flows? 7 DR. MORHARDT: No, I have no doubts. 8 MR. SUYEYASU: Okay. Now, in about -- on average 9 about 25 percent of San Joaquin basin chinook salmon return 10 after one-and-a-half years after outmigration; is that 11 correct? 12 DR. MORHARDT: Is that what's in my testimony? 13 MR. SUYEYASU: That's what is in your testimony. 14 DR. MORHARDT: That's correct. 15 MR. SUYEYASU: Okay. "And on average about 25 16 percent of San Joaquin basin fall-run chinook salmon return 17 after three-and-a-half years." Is that correct? 18 DR. MORHARDT: Yes. 19 MR. SUYEYASU: So the escapement measure in Figure 20 3.1.3 is also influenced by spring flows one-and-a-half 21 years before escapement; is that correct? 22 DR. MORHARDT: That's correct. 23 MR. SUYEYASU: And it's also influenced by spring 24 flows three-and-a-half years before escapement; is that 25 correct? CAPITOL REPORTERS (916) 923-5447 1095 1 DR. MORHARDT: Yes. 2 MR. SUYEYASU: And the statement measured in Figure 3 3.1.3 may be influenced as much by flows one-and-a-half and 4 three-and-a-half years before escapement as by flows 5 two-and-a-half years before escapement; is that correct? 6 DR. MORHARDT: I believe that's correct. 7 MR. SUYEYASU: So the variation due to unknown causes 8 is partially caused by variation due to flows 9 one-and-a-half and three-and-a-half years before 10 escapement; is that correct? 11 DR. MORHARDT: That's undoubtedly true. 12 MR. SUYEYASU: So the variation associated with flows 13 of all types, in general, is likely higher than that 14 suggested in the R-squared value in Figure 3.1.3; is that 15 correct? 16 DR. MORHARDT: I'm not sure I could conclude that. 17 Could you restate the question? 18 MR. SUYEYASU: The variation, if I -- you say that, 19 "The variation due to unknown causes is partially caused by 20 the variation due to flows at one-and-a-half years and 21 three-and-a-half years." Is that correct? 22 DR. MORHARDT: Yes. 23 MR. SUYEYASU: And that variation is not recorded in 24 the R-squared value here; is that correct? 25 DR. MORHARDT: That's correct. CAPITOL REPORTERS (916) 923-5447 1096 1 MR. SUYEYASU: Now, if those flows at one-and-a-half 2 years and three-and-a-half years ago did have an impact 3 upon escapement, shouldn't that be recorded, shouldn't that 4 be part of your variation associated with flows? 5 DR. MORHARDT: Those variations are -- may be, in 6 fact, be reflected here in the variance that you see on 7 this graph. We have no way of knowing what those 8 variations are short of -- well, we have no way of knowing 9 that. It may be that they, in fact, are the cause of the 10 variation you see on this screen. I -- I will not conclude 11 that there would be more variation if it were possible to 12 tease that out of the escapement information. 13 MR. SUYEYASU: But it is possible that the variation 14 associated with the flows is actually higher than suggested 15 in that R-squared value? 16 DR. MORHARDT: The variation associated with what 17 flows? 18 MR. SUYEYASU: If it were possible to compare flows 19 in a given year to the level of escapement that returned 20 based on those flows, would the R-squared value likely be 21 higher than that that you observed here? 22 DR. MORHARDT: I still don't understand the question. 23 MR. SUYEYASU: Let me give you a hypothetical. Let's 24 assume that the flows in the river are 7,000 csf this year. 25 A certain number of salmon go out into the ocean CAPITOL REPORTERS (916) 923-5447 1097 1 outmigrate, they come back one-and-a-half, two-and-a-half, 2 to three-and-a-half years later. 3 Now, if you could measure the escapement of just 4 the fish that left this year, if you could separate out 5 between one-and-a-half, two-and-a-half to three-and-a-half 6 years all of the 1998 fish returning, would that sort of 7 comparison render a higher R-squared value? 8 DR. MORHARDT: It could. It could. It might. 9 MR. SUYEYASU: Do you believe that that is likely? 10 DR. MORHARDT: I have no idea. 11 MR. SUYEYASU: No idea. Now, do you believe that 12 in-stream flows at Vernalis display on a year-to-year basis 13 a statistical tendency of aggression towards the main? 14 DR. MORHARDT: I don't know. 15 MR. SUYEYASU: Do you believe that if we have a high 16 river flow year that it's just as likely that that will be 17 followed by a high year as a low year? 18 DR. MORHARDT: I don't think this is a 19 single-statistical process. There's certainly 20 climatological factors going on. In any event, I haven't 21 done any such analysis. 22 MR. SUYEYASU: So it's your belief that a high -- a 23 wet water year is just as likely to be followed by a wet 24 water year as by above normal, normal -- 25 MR. O'LAUGHLIN: Objection. Argumentative. That CAPITOL REPORTERS (916) 923-5447 1098 1 question has been asked and answer. And if he doesn't like 2 the answer he should move on. 3 C.O. CAFFREY: Right. Objection sustained. Move on 4 to another question, please. 5 MR. SUYEYASU: Any other experts at this table have 6 any opinion as to whether or not a wet year is likely -- 7 more likely than not to be followed by a wet year, or a 8 dryer year? 9 MR. O'LAUGHLIN: Objection. None of the witnesses 10 have been offered as either climatologists, hydrologists, 11 or hydraulic engineers. So I would object to the question 12 as outside the scope of the experts's testimony. 13 C.O. CAFFREY: Objection sustained. 14 MR. SUYEYASU: You can remove the picture. 15 Mr. Morhardt, you believe the path taken through the Delta 16 during outmigration is the clearest indicator of salmon 17 survival; is that correct? 18 DR. MORHARDT: I believe that smolts that go down the 19 Old River path survive less, well, by about half than 20 smolts going down the San Joaquin pathway. 21 MR. SUYEYASU: And the primary cause of mortality on 22 the Old River are direct and indirect affects of the export 23 pumps; is that correct? 24 DR. MORHARDT: I do not know. 25 MR. SUYEYASU: But you would suggest installing a CAPITOL REPORTERS (916) 923-5447 1099 1 barrier at the head of Old River; is that correct? 2 DR. MORHARDT: Yes. 3 MR. SUYEYASU: Now, flow patterns on the San 4 Joaquin -- the lower San Joaquin River would change as a 5 result of the installation of this barrier; is that 6 correct? 7 DR. MORHARDT: I have no expertise on that. 8 MR. SUYEYASU: Have you considered the possibility 9 that flow patterns in the lower San Joaquin may be changed 10 as a result of the installation of this barrier? 11 DR. MORHARDT: I haven't looked into that. 12 MR. SUYEYASU: But you're still recommending 13 installing a barrier at the head of Old River? 14 DR. MORHARDT: I recommend installing a barrier at 15 the head of the Old River, because the data show that the 16 survival is twice as good when fish go down the San Joaquin 17 River than when they go down the Old River. 18 MR. SUYEYASU: Did you compare what would happen with 19 fish going down the lower San Joaquin River with the 20 barrier in place? 21 DR. MORHARDT: With what? 22 MR. SUYEYASU: As compared to survival without a 23 barrier. 24 MR. O'LAUGHLIN: Asked and answered. He's already 25 testified that there is a relationship of at least a CAPITOL REPORTERS (916) 923-5447 1100 1 half -- 2 MR. JACKSON: Counsel has got it wrong. He's talking 3 now about in the lower San Joaquin below the diversion. 4 C.O. CAFFREY: I agree. 5 MR. JACKSON: Below the Old River, below the Old 6 River barrier. 7 MR. O'LAUGHLIN: He didn't say that. 8 C.O. CAFFREY: Objection overruled. Go ahead with 9 the question, again. 10 MR. SUYEYASU: Now, in making your determination that 11 a barrier should be installed at the head of the Old River, 12 did you compare the survival without the head of the Old 13 River barrier in place with survival with the head of the 14 Old River barrier in place? 15 DR. MORHARDT: All of the data that we have show that 16 survival is twice as good with fish going down the San 17 Joaquin River than going down Old River. That's what I 18 based the conclusion on. 19 MR. SUYEYASU: Is that data taken in the same year 20 wherein a given year fish going down the lower San Joaquin 21 River are twice as likely to survive as fish going down the 22 Old River; is that correct? 23 DR. MORHARDT: The data are based on simultaneous 24 releases in both the Old River and in the San Joaquin 25 River. CAPITOL REPORTERS (916) 923-5447 1101 1 MR. SUYEYASU: Now, in recommending the barrier at 2 the head of Old River did you make any comparison of what 3 survival would be on the lower San Joaquin River with the 4 barrier in place? 5 MR. O'LAUGHLIN: Objection. Could we just get 6 clarified, it's vague and ambiguous as to "lower San 7 Joaquin River." Is that below the confluence of the Merced 8 and the San Joaquin River, or is that all the way down 9 below Stockton? 10 C.O. CAFFREY: Could you clarify for us, 11 Mr. Suyeyasu, what you mean? 12 MR. SUYEYASU: Below the confluence with the Old 13 River going to the Delta. 14 DR. MORHARDT: I'm sorry. You'll have to repeat the 15 question. I'm having trouble understanding it. 16 MR. SUYEYASU: My apologies. Now, in recommending 17 that a barrier be installed at the head of the Old River, 18 did you make a comparison -- did you use survival studies 19 that compared the survival of salmon moving down the lower 20 San Joaquin River from the confluence of Old River out to 21 the ocean? 22 DR. MORHARDT: The entire basis, I believe, of the 23 recommendation is based on the simultaneous release studies 24 showing that when fish are simultaneously released in the 25 two rivers they do twice as well going down the San Joaquin CAPITOL REPORTERS (916) 923-5447 1102 1 River. I believe those are the only studies that shed any 2 real light on the question. 3 MR. SUYEYASU: Now, in your -- you had a number of 4 exhibits in your testimony comparing the flows and the 5 salmon survival rates. Have you made any effort to use the 6 currently-available data to compare inflow/export ratios to 7 salmon survival or escapement? 8 DR. MORHARDT: No. 9 MR. SUYEYASU: Is there a reason that such 10 comparisons were not made? 11 DR. MORHARDT: We were concerned only with flows in 12 the river. We weren't asked to look at the affects of 13 exports. 14 MR. SUYEYASU: Now, in preparing your data you also 15 did not have any comparisons between the total difference 16 between San Joaquin River inflow and export pumping. Is 17 there any reason that you did not make that comparison? 18 DR. MORHARDT: We were just constraining our 19 examination to affects of flow in the river. 20 MR. SUYEYASU: Do you believe that such a comparison 21 would be illuminating as to the issues we are discussing 22 here? 23 DR. MORHARDT: I don't know. 24 MR. SUYEYASU: Mr. Loudermilk, what are your concerns 25 regarding the release of wild -- of hatchery-produced CAPITOL REPORTERS (916) 923-5447 1103 1 salmon into the San Joaquin River? 2 DR. LOUDERMILK: Hatchery fish of which origin? 3 MR. SUYEYASU: Hatchery-reared fish of Merced River 4 origin. 5 DR. LOUDERMILK: We have two primary concerns, one as 6 it pertains to VAMP proposal, the VAMP study. The one 7 concern is that with the existing facility and in 8 recognition of the cyclic nature of spawning escapements 9 and our cyclic production of Merced hatchery, we are 10 concerned that we may not have enough fish to satisfy VAMP 11 study demands in addition to all the existing study demands 12 in the San Joaquin basin on a consistent basis. The other 13 concern is more of a general concern regarding the shear 14 magnitude of hatchery fish released into the system. 15 MR. SUYEYASU: And what is your concern about the 16 shear magnitude of hatchery released fish into the system? 17 DR. LOUDERMILK: That during periods when natural 18 production declines, that is the number of naturally 19 spawning fish is very low, those are the time periods of 20 greatest concern for all of us, I believe, at least for us 21 in terms of the number of hatchery fish released into the 22 system. 23 MR. SUYEYASU: And what's the danger at those times 24 when natural production is low? 25 DR. LOUDERMILK: That the actual magnitude of CAPITOL REPORTERS (916) 923-5447 1104 1 hatchery fish relative to the magnitude of natural fish can 2 result in interbreeding and other genetic concerns. 3 MR. SUYEYASU: Ms. Brandes, if I could just ask you a 4 couple questions. Now, do you believe that the 5 installation of the barrier at the head of Old River will 6 improve survival for fish coming down the San Joaquin 7 River; is that correct? 8 MS. BRANDES: Yes. 9 MR. SUYEYASU: And part of the reason that you made 10 that conclusion -- could we have overhead, I believe, it's 11 1-G? 12 MS. BRANDES: Could I clarify, did you say fish or 13 salmon? 14 MR. SUYEYASU: I said, "fish." I meant salmon. 15 MS. BRANDES: Okay. 16 MR. SUYEYASU: And part of the reason you made that 17 conclusion is because survival going down for fish released 18 in 19 -- I believe it was 1997 was higher than fish 19 released in 1996; is that correct? 20 MS. BRANDES: One -- one of the pieces of evidence 21 for 1997 in particular. 22 MR. SUYEYASU: Now, what other pieces of evidence 23 between -- besides that comparison of 1996 to 1997 are 24 there that led you to believe that the installation of the 25 barrier was beneficial for the salmon? CAPITOL REPORTERS (916) 923-5447 1105 1 MS. BRANDES: Are you talking specifically about 2 1997? Are you talking in general terms of why I believe 3 the barrier would improve survival? 4 MR. SUYEYASU: Why, in general terms, do you believe 5 that the barrier would improve survival? 6 MS. BRANDES: Well, I think as Dr. Morhardt said, the 7 initial work showed that survival of fish released in the 8 San Joaquin River downstream of the confluence with upper 9 Old River survived at a higher rate than those released at 10 the top of Old River. That's one of reasons. 11 Other reasons, the 1997 data based on the 12 comparison, again, between 1997 and 1996 when flows and 13 exports were generally similar, you had a higher survival 14 for fish released at Mossdale in 1997 than you did in 1996. 15 I also believe the 1997 data, when you look at all of the 16 past data back to 1992 with releases at Mossdale, that they 17 survived relatively high. One additional piece of evidence 18 that I put in my testimony, in my written testimony had to 19 do with the relative survival in the Delta versus in the 20 tributaries. And based on that comparison the survival 21 through the Delta in 1997 was higher relative to the 22 tributary survival than it had been in 1996 or 1995. 23 MR. SUYEYASU: Now, in comparing the 1996 data to the 24 1997 data, is there any sort of statistical significance 25 between those two? CAPITOL REPORTERS (916) 923-5447 1106 1 MR. O'LAUGHLIN: Objection. Vague and ambiguous. 2 What data? 3 C.O. CAFFREY: Could you be a little more succinct in 4 your question, Mr. Suyeyasu? 5 MR. SUYEYASU: You relied on data, data presented in 6 Figure 1-G to conclude that salmon survival in 1997 was 7 higher than the salmon survival in 1996. Is there any 8 statistically significant difference when comparing that 9 data? 10 MS. BRANDES: I don't think you can compare it in a 11 statistical sense with only two data points. 12 MR. SUYEYASU: And why is that? 13 MS. BRANDES: I'm not a statistician. And my 14 understanding is the statistics we used to show 15 statistically differences -- you know where you have 16 statistically significant difference between means, a 17 statistician might be able to show differences in a 18 statistical sense. But I'm not capable -- I don't 19 understand those if those are available or not. 20 MR. SUYEYASU: Now, in making the comparison between 21 survival with the barrier and without the barrier, did you 22 compare the survival rates with the barrier in 19 -- I 23 believe it's 1992, '93 and '94? 24 MS. BRANDES: Could you restate the question, again? 25 MR. SUYEYASU: In making your conclusion that CAPITOL REPORTERS (916) 923-5447 1107 1 survival for salmon would be higher with the barrier in 2 place than without the barrier in place, did you look at 3 the barrier survival data for 1992, '93 and '94 and compare 4 that to data without the barrier in place? 5 MS. BRANDES: Well, the 1993 data did not have the 6 barrier in place. The flows were too high to have the 7 barrier in place. And in the testimony I believe it 8 describes some of the issues surrounding the barrier 9 studies in 1992 and 1995 that they had concerns regarding 10 temperature in '92 when the -- after the barrier was 11 installed. And in 1994 just the low levels of survival at 12 all that it was difficult to make comparison with the 13 barrier to that without the barrier in those two years. 14 MR. SUYEYASU: So you did not use those data values 15 because of compounding factors that were present when the 16 study was done; is that correct? 17 MS. BRANDES: I think in 1992 that was the case. In 18 1994, for whatever reason, survival was too low to 19 differentiate between pre- and post-barrier installation. 20 MR. SUYEYASU: Did you try and compare the survival 21 in 1994 with the survival in other years just as you 22 compared 1996 to 1997? 23 MS. BRANDES: In what regards? 24 MR. SUYEYASU: You made a comparison between the 25 survival rates without the barrier in 1996 to survival with CAPITOL REPORTERS (916) 923-5447 1108 1 the barrier in 1997. Did you make any similar comparisons 2 to survival with the barrier in 92, '93 and '94 and 3 survival without the barrier in any other years? 4 MS. BRANDES: I think I did make that comparison. In 5 my testimony it's saying that the 1997 survival index was 6 generally higher than what we had seen with or without a 7 barrier since 1992. 8 MR. SUYEYASU: Did you -- no further questions. I 9 have no further questions, Mr. Chairman. 10 C.O. CAFFREY: All right. Thank you, Mr. Suyeyasu. 11 Next I believe it's Mr. Hildebrand. 12 MR. HILDEBRAND: Right. 13 C.O. CAFFREY: Mr. Hildebrand, how much time do you 14 think you're going to need? I'm trying to figure out 15 when's a good time to break for lunch rather than to 16 interrupt you. 17 MR. HILDEBRAND: It it's a little hard to out guess, 18 but I would say three quarters of an hour maybe. 19 C.O. CAFFREY: Why don't we take a lunch break -- 20 MR. HILDEBRAND: Okay. 21 C.O. CAFFREY: -- now and come back at a quarter to 22 1:00 and we can start with you, Mr. Hildebrand, and you can 23 go through your whole -- 24 MR. HILDEBRAND: That would give better continuity. 25 C.O. CAFFREY: Yes, sir. All right, we'll see you CAPITOL REPORTERS (916) 923-5447 1109 1 all back here at a quarter to 1:00. Thank you. 2 (Luncheon recess.) 3 ---oOo--- 4 5 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 1110 1 WEDNESDAY, JULY 22, 1998, 12:49 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Let's find our seats and we will 5 resume the hearing. And we were at the point where 6 Mr. Hildebrand was going to begin his cross-examination of 7 this panel. And just for the knowledge of the audience, we 8 have, yet, another cross-examiner added to the list, 9 Mr. Birmingham. 10 MR. BIRMINGHAM: Thank you. 11 C.O. CAFFREY: So, Mr. Hildebrand, good afternoon, 12 sir. 13 ---oOo--- 14 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 15 BY SOUTH DELTA WATER AGENCY 16 BY ALEX HILDEBRAND 17 MR. HILDEBRAND: Good afternoon, Mr. Chairman and 18 Members of the Board. I'm Alexander Hildebrand 19 representing the South Delta Water Agency. And my first 20 questions will be directed to Mr. Loudermilk. 21 Well, you heard Bruce Herbold suggest yesterday 22 that 35 percent of the downstream San Joaquin salmon 23 migrate outside of the 31-day pulse period. Do you concur 24 in that figure? 25 DR. LOUDERMILK: On average, yes, generally. But I CAPITOL REPORTERS (916) 923-5447 1111 1 think Bruce also mentioned that it's quite variable. 2 MR. HILDEBRAND: Yes, but on average. 3 DR. LOUDERMILK: On average that's true. In wetter 4 years a good number of fish migrate out of the San Joaquin 5 tributaries as fry shortly after they emerge from the 6 gravel. In the dryer years a greater fraction of the total 7 production migrate as smolts during the pulse-flow period. 8 MR. HILDEBRAND: What is typically the total 9 migration duration downstream of the salmon migration? 10 DR. LOUDERMILK: This is for fall-run? 11 MR. HILDEBRAND: Yes, San Joaquin. 12 DR. LOUDERMILK: It's not uncommon for us to begin 13 seeing fry emerge from the gravel as early as late December 14 or January. And it's not uncommon for us to see fish 15 migrating out of the system as late as the end of June. 16 That's -- that's the wide sideboards. For smolts that have 17 remained in the tributary, reared in the tributary and are 18 migrating during the normal spring smolt migration period, 19 the period from around March 1st to March 15th through 20 about June 15th. 21 MR. HILDEBRAND: So if you want to maximize the 22 protection of smolts from the San Joaquin River system you 23 would want to maximize a proportion of the San Joaquin flow 24 that went on down to Stockton during that entire period of 25 time; is that correct? CAPITOL REPORTERS (916) 923-5447 1112 1 DR. LOUDERMILK: If your definition of maximizing is 2 solely a numeric maximization, in other words, if you're 3 trying to protect the greatest number of smolts -- 4 MR. HILDEBRAND: Uh-huh. 5 DR. LOUDERMILK: -- under what was defined by one of 6 my other panel members here as under a controllable level 7 of flows, say, 7,000 or less, those are the years when most 8 of the production of smolts is leaving the drainage from 9 say March 15 to June 15. And more specifically, in those 10 months, or in those conditions the April 15 to May 15 11 window brackets the greatest numeric, the greatest number 12 of smolts in those conditions. 13 The other thing we need to consider is the 14 genetics issues such as if we focus all of our attention on 15 that narrow window are we doing the overall population 16 objective. So the simple answer is, yes. If you're 17 focused on just numbers alone, April 15 to May 15 is a good 18 focus. 19 MR. HILDEBRAND: But if you wanted to maximize the 20 protection of all the smolts in those years you described 21 you would want to go from March 1st through June 15th; is 22 that right? 23 DR. LOUDERMILK: If we had the option of doing that 24 we definitely would like to do that. 25 MR. HILDEBRAND: Now, you co-authored a white paper CAPITOL REPORTERS (916) 923-5447 1113 1 with me, did you not, that suggested how the head of Old 2 River barrier and the three tidal barriers could best be 3 designed and operated to maximize the smolt survival also 4 protecting the water levels, water circulation, and water 5 quality in the South Delta? 6 DR. LOUDERMILK: Yes. 7 MR. HILDEBRAND: Are you aware that South Delta 8 submitted that white paper as one of our exhibits in this 9 hearing? 10 DR. LOUDERMILK: No, I was not. 11 MR. HILDEBRAND: Is the installation and operation of 12 these barriers dependent on whether we have the agreement 13 or the control plan, or does it depend on the 14 implementation of the temporary barrier program and the 15 interim South Delta program? 16 DR. LOUDERMILK: When you say, "these barriers," 17 you're not referring only to the head of Old River barrier 18 but the other barriers? 19 MR. HILDEBRAND: In our paper we discussed how they 20 should be operated in coordination with each other. 21 DR. LOUDERMILK: As I recall that joint white paper, 22 Alex, was a plea for -- we put out sort of a straw proposal 23 on how they may be operated and advocated the process to go 24 through and very carefully look at the scientific 25 information and see if there wasn't a way to come to a CAPITOL REPORTERS (916) 923-5447 1114 1 reasonable conclusion. 2 Now, to answer your question, the only program 3 that I'm aware of that can be in place in short-term is the 4 temporary barriers program which is permitted -- apparently 5 permitted and DWR holds that permit. And that's the 6 barrier program that we've focused most of our attention on 7 thus far. 8 MR. HILDEBRAND: But in our white paper we endeavor 9 to propose a mode of operation that would maintain the -- a 10 large portion of the San Joaquin River flow going down to 11 Stockton throughout the entire migration period rather than 12 just during the pulse flow; is that not correct? 13 DR. LOUDERMILK: That's correct. And the reason from 14 my perspective as one of the authors, the reason that we 15 put that out on the table was to try to stimulate a more 16 thorough discussion of the other species of fish that might 17 be impacted by such an operation to benefit the San Joaquin 18 fall-run. Again, I think the focus was to -- at least from 19 my perspective on that white paper was to get a straw 20 proposal on the table and stimulate more earnest discussion 21 about all the different species that it impacts. 22 MR. HILDEBRAND: We also endeavored, did we not, to 23 get recognition of the need to resolve several different 24 problems one being the preservation of the salmon, another 25 being the -- doing that in a manner that did not impact the CAPITOL REPORTERS (916) 923-5447 1115 1 water levels in the South Delta, circulation, water quality 2 in the South Delta channels which would be downstream of 3 the head of the Old River barrier; is that correct? 4 DR. LOUDERMILK: Yes. There were multiple objectives 5 for that paper. 6 MR. HILDEBRAND: And it was recognized that for 7 various reasons at various times we would not be able to 8 operate the head of Old River barrier as a full closure and 9 it would either have to let a considerable amount of water 10 through it, or you'd have to have the other barriers to 11 reduce the need to let the water through it, or in the 12 event that the head of Old River barrier can't be installed 13 at all for some reason, we could get a substantial 14 hydraulic barrier by operation of the three tidal barriers; 15 do you recall that? 16 MR. BIRMINGHAM: Excuse me? 17 C.O. CAFFREY: Yes. 18 MR. BIRMINGHAM: I recognize that Mr. Hildebrand is 19 not an attorney and may not understand the distinction 20 between a single question and a compound question. But as 21 I counted there were at least four questions in that 22 question. And I wonder if Mr. Hildebrand could restrict 23 himself to just asking one question at a time. 24 C.O. CAFFREY: Let me -- 25 MR. CAMPBELL: I join in that objection. CAPITOL REPORTERS (916) 923-5447 1116 1 C.O. CAFFREY: Thank you, gentlemen. I'm going to 2 sustain the objection. And I'm going to add to that, 3 though, we also recognize that Mr. Hildebrand is not a 4 trained attorney, but an expert in his own right and a 5 respected one. 6 Nevertheless, Mr. Hildebrand, I think people like 7 you and I who aren't attorneys tend to bite off a whole 8 bunch in one question. So if you can think of these as 9 sort of leading into the area and maybe breaking that into 10 two or three questions it would be helpful. 11 MR. HILDEBRAND: Well, I guess I should apologize for 12 not being an attorney. 13 C.O. CAFFREY: If that's the conclusion I lead you 14 to, I wouldn't apologize for that at all. 15 MR. HILDEBRAND: I was trying to save time. 16 C.O. CAFFREY: I appreciate that, Mr. Hildebrand. 17 MR. HILDEBRAND: Do you recall that there are some 18 situations in which the head of Old River barrier cannot be 19 installed and, yet, we still want to protect the smolts 20 during that downstream migration period? 21 DR. LOUDERMILK: Yes. 22 MR. CAMPBELL: Objection, Mr. Chairman. It's 23 vague -- 24 C.O. CAFFREY: I'm sorry, I didn't hear -- go ahead. 25 MR. CAMPBELL: Objection as to vague in terms of who CAPITOL REPORTERS (916) 923-5447 1117 1 "We are." 2 MR. HILDEBRAND: I was referring to the authors of 3 the paper that I just discussed. 4 C.O. CAFFREY: Why don't you restate the question 5 without the "we." 6 MR. HILDEBRAND: You recall that in the paper that we 7 wrote we recognized that there were times when the head of 8 Old River barrier could not be installed for various 9 reasons and, yet, we wanted to protect this downstream 10 smolts that might migrate during those periods? 11 DR. LOUDERMILK: Yes. 12 MR. HILDEBRAND: And do you recall that in order to 13 do that we at times thought it would be desirable to 14 operate the three tidal barriers in order to create at 15 least a substantial hydraulic barrier that would keep most 16 of the flow in the San Joaquin down to Stockton? 17 DR. LOUDERMILK: I recall that as part of the straw 18 proposal that that was included in the straw proposal. 19 MR. HILDEBRAND: Yeah. Now, the implementation of 20 these barriers under the temporary barrier program and the 21 interim South Delta program is dependent on the issuance of 22 permits by the Department of Fish and Game and by the Corps 23 of Engineers with concurrence of the Fish and Wildlife 24 Service to permit the installation and operation of those 25 barriers at any particular time; is that correct? CAPITOL REPORTERS (916) 923-5447 1118 1 DR. LOUDERMILK: To the best of my knowledge, yes. 2 MR. HILDEBRAND: And have these agencies to your 3 knowledge been unwilling to provide the permits to allow 4 the barrier operations at those times that would achieve 5 the purposes we just discussed? 6 MR. O'LAUGHLIN: Objection. Calls for a legal 7 conclusion on the "unwilling." 8 MR. HILDEBRAND: Let's just say that they have not. 9 C.O. CAFFREY: That works. Go ahead. You can answer 10 that question. 11 DR. LOUDERMILK: Taking the wording as -- as it was 12 provided, the simple answer is, yes. However, those 13 agencies have authorities much broader than just the narrow 14 scope of the question. And those have to be taken into 15 consideration in issuing permits and agreements. 16 MR. HILDEBRAND: I'm not addressing the question of 17 whether they have valid reasons for failing to issue. But 18 on the other hand, it is true, it is not, that these same 19 agencies, that is the Fish and Game and Fish and Wildlife, 20 are parties to this agreement which proposes to protect the 21 salmon smolts and that when they refuse to give these 22 permits they are operating in opposition to that particular 23 objective whether they have others -- 24 C.O. CAFFREY: That's -- 25 MR. HILDEBRAND: Is that, again, too long? CAPITOL REPORTERS (916) 923-5447 1119 1 MR. O'LAUGHLIN: Objection. 2 C.O. CAFFREY: Compound, is that the objection? 3 MR. CAMPBELL: Compound, and I believe he's going 4 beyond the scope of the witness's expertise. The witness 5 is here to provide biological testimony. And I believe 6 Mr. Hildebrand is ranging into broader policy questions. 7 C.O. CAFFREY: Well, Mr. Campbell, that may be, but 8 I'm not going to rule on that because that would be 9 determined if we were getting more questions that were more 10 succinct, we may get to that point. That was very 11 compound, if that's two words. 12 There was about I think at least three questions 13 in there, Mr. Hildebrand. So you can lead the witness to 14 some degree by setting up the next question with the 15 question you're asking now. That's allowed in 16 cross-examination. 17 MR. HILDEBRAND: I'll drop that question and go on to 18 another subject. 19 DR. LOUDERMILK: If I can clarify the record here, 20 I'm not aware of any refusal to issue any permit or 21 agreement at this point regarding the questions Alex was 22 just asking. 23 MR. HILDEBRAND: But you are aware that they have not 24 granted the permits, correct? 25 DR. LOUDERMILK: No, I'm not aware of that. All I CAPITOL REPORTERS (916) 923-5447 1120 1 know is that the temporary permit is in place at this 2 juncture. And there are a set of conditions over which 3 that project is to be constructed and operated. 4 MR. HILDEBRAND: Are you aware that the temporary 5 permits do not permit the operation of the tidal barriers 6 in the absence of the head of Old River barrier between 7 May 15th and June 1st? 8 DR. LOUDERMILK: I'm aware that the permit that's 9 been issued does have constraints subject to what you 10 described. 11 MR. HILDEBRAND: Are you also aware that it does not 12 permit the installation of tidal barriers prior to 13 April 15th? 14 DR. LOUDERMILK: Yes. 15 MR. HILDEBRAND: Let's move to the question of the 16 survival of Merced smolts. What proportion of the San 17 Joaquin River smolts and fry come from the Merced River? 18 DR. LOUDERMILK: I don't know. That's -- that's 19 variable depending on one year to the next on what's 20 happening throughout the watershed. 21 MR. HILDEBRAND: Is it a substantial figure? 22 DR. LOUDERMILK: During -- for instance, during the 23 recent drought, the production in the Merced in combination 24 with -- in the Merced River, natural production in 25 combination with the hatchery production was a significant CAPITOL REPORTERS (916) 923-5447 1121 1 percentage of the total basin production. 2 MR. HILDEBRAND: In the absence of the agreement, are 3 these smolts and fry adversely impacted by selenium 4 concentrations, or salinity -- high salinity, or 5 temperature, or low flow in the river reach in the Merced 6 down to the Tuolumne? 7 MR. BIRMINGHAM: Objection. 8 MR. CAMPBELL: Objection. 9 C.O. CAFFREY: One at a time. 10 MR. CAMPBELL: Compound. 11 C.O. CAFFREY: You first. 12 MR. HILDEBRAND: I'll take them one at a time. 13 MR. CAMPBELL: I'll join in that. Vague in terms of 14 what agreement he's referring to. 15 MR. HILDEBRAND: The agreement which is the subject 16 of this hearing. 17 MR. CAMPBELL: There are a number of agreements -- 18 C.O. CAFFREY: Try the question, again, 19 Mr. Hildebrand. I don't want to stifle you. Try to be a 20 little more succinct in naming the agreement. 21 MR. O'LAUGHLIN: Mr. Chairman, may I make a point 22 right now, if I may, in regards to the testimony that's 23 going to be taking place. I thought things would be moving 24 along much quicker than they have been. And given that we 25 started out this afternoon and there's been no inclination CAPITOL REPORTERS (916) 923-5447 1122 1 that it's going to proceed much more rapidly, we have a 2 witness problem. 3 Pat Brandes who is a witness on this panel has 4 made prearrangements with her family for a longstanding 5 vacation to fly to Hawaii starting tomorrow. We had 6 presently envisioned that the testimony would be done by 7 Ms. Brandes clearly by today. I would like to ask, if it's 8 agreeable to the other witnesses and to the parties to the 9 proceeding, if we can finish up with Ms. Brandes today as 10 much as we did with Mr. Herbold yesterday. Otherwise, 11 we're going to run into a witness problem and she may not 12 be available -- available for what, Pat, a week or ten 13 days? 14 MS. BRANDES: Ten days. 15 C.O. CAFFREY: I'm not really sure that helps, 16 because what I think tends to happen is even if we present 17 her as one witness to be cross-examined we still have some 18 of the lack of time limitations and the description of what 19 is -- the definition of what is relevant is a difficult 20 thing to determine in this proceeding. So I'm not sure, 21 just off the top of my head, whether it would be better to 22 bring her back when she gets back. You're going to be gone 23 for a week? 24 MEMBER FORSTER: Ten days. 25 C.O. CAFFREY: Ten days. Because that means, let's CAPITOL REPORTERS (916) 923-5447 1123 1 see, we have three days next week; is that right, 2 Mr. Stubchaer? I believe we're meeting three days next 3 week. 4 MR. O'LAUGHLIN: And three days in a row. 5 C.O. CAFFREY: Three days in a row. And at the rate 6 that we are moving you have several more witnesses to 7 present or maybe you're changing your mind now. 8 MR. O'LAUGHLIN: I might rest. 9 C.O. CAFFREY: I'm just wondering if it might just 10 make some sense to go as far as we can today then -- 11 MR. O'LAUGHLIN: Reconvene her. 12 C.O. CAFFREY: And reconvene her -- well, let's see, 13 what does that do with the rest of the panel? 14 MR. O'LAUGHLIN: They can stay here. We can keep 15 going on cross with the panel. 16 C.O. CAFFREY: Okay. What do you think, 17 Mr. Stubchaer, any thoughts on that? 18 C.O. STUBCHAER: Hobson's choice. 19 C.O. CAFFREY: Yeah, Hobson's choice. 20 (Off the record.) 21 C.O. CAFFREY: We're back on the record, even though 22 I probably neglected to say, "We're off." All right. 23 We'll just try to get as far as we can today. And then 24 we'll have to bring Ms. Brandes back when she is back. Try 25 and get as much done as we can today. CAPITOL REPORTERS (916) 923-5447 1124 1 MR. O'LAUGHLIN: Thank you, Mr. Chairman. 2 C.O. CAFFREY: Thank you, Mr. O'Laughlin. Please 3 proceed, Mr. Hildebrand. 4 MR. HILDEBRAND: All right. It will take longer, but 5 I'll divide this up into parts as you desire. First with 6 regard to what agreement I'm talking about the notice of 7 this hearing -- 8 C.O. CAFFREY: Excuse me, Mr. Hildebrand. I want to 9 make sure that you understood what I said. Just treat this 10 panel as you would treat them otherwise. And when we 11 decide to close today, we're assuming we won't be done with 12 Ms. Brandes, we'll have to bring her back anyway. So just 13 question them as a panel. 14 C.O. STUBCHAER: He's breaking his question up into 15 parts. 16 C.O. CAFFREY: Excuse me, I thought you were 17 referring to the discussion. You're talking about the 18 previous objection? 19 MR. HILDEBRAND: Yes. Mr. O'Laughlin questioned 20 about whether we knew what agreement we were talking about. 21 C.O. CAFFREY: Thank you. 22 MR. HILDEBRAND: That puzzles me, because the notice 23 of this hearing was to discuss the question of whether the 24 protection provided by -- that would be provided if you 25 adopted the agreement was equivalent to the protection that CAPITOL REPORTERS (916) 923-5447 1125 1 would accrue in the event that you went ahead with the 2 control plan. Now, if he doesn't know what agreement we're 3 talking about, I don't know how I should be expected to 4 know the answer to that. 5 C.O. CAFFREY: Well, then he should answer he doesn't 6 know what agreement you're talking about. 7 MR. CAMPBELL: It wasn't Mr. O'Laughlin that made the 8 objection. I know what agreement you're talking about, but 9 to make it clear for the record there have been other 10 agreements involving the San Joaquin River tributaries. 11 And to be clear, I'd like you to refer to it as the San 12 Joaquin River Agreement. Otherwise, when we go back 13 through the record and people are talking about this other 14 agreement, or the San Joaquin River Agreement, we'll all be 15 confused. 16 C.O. CAFFREY: Mr. Campbell is correct and raises a 17 very important point. 18 MR. HILDEBRAND: I'm clearly talking about the San 19 Joaquin River Agreement. So if I fail to put the word "San 20 Joaquin" in there in the rest of my colloquy here, that's 21 what I'm talking about. 22 C.O. CAFFREY: And, Mr. Hildebrand, again the reason 23 for that is even though everybody in the room may make the 24 proper assumption and pretty well know what you're talking 25 about, this is for people, as Mr. Campbell said, who would CAPITOL REPORTERS (916) 923-5447 1126 1 be reading the transcript that never attended, for instance 2 a judge who never attended the hearing, so he or she would 3 know full-well what we're referring to. 4 MR. HILDEBRAND: I stand corrected. 5 C.O. CAFFREY: Thank you, sir. 6 MR. HILDEBRAND: All right. To break this up are the 7 selenium concentrations in the reach from the Merced down 8 to the Tuolumne in the absence of the San Joaquin River 9 Agreement sometimes at levels that would be damaging to the 10 smolts and the fry that come out of the Merced? 11 MR. ROBBINS: Objection, your Honor -- 12 Mr. Chairman. I wonder if we can clarify if Mr. Hildebrand 13 is discussing from the mouth of the Merced, or if he's 14 discussing the Merced River in general. 15 MR. JACKSON: I think that question was perfectly 16 clear. And I think this jumping up and down over here is 17 designed tactically to get us away from the answer to the 18 question which is very simple, "You bet it does." 19 MR. ROBBINS: Actually, Mr. Chairman, I think it's 20 pretty germane that the testimony could be quite different. 21 C.O. CAFFREY: Could you clarify -- you have to 22 repeat the question, Mr. Hildebrand. 23 MR. HILDEBRAND: I'm talking about the reach of the 24 main stem of the San Joaquin River between the mouth of the 25 Merced and the mouth of the Tuolumne. CAPITOL REPORTERS (916) 923-5447 1127 1 C.O. CAFFREY: All right. Does the witness 2 understand the question? 3 DR. LOUDERMILK: Yes. 4 C.O. CAFFREY: All right. Please, answer, sir. 5 DR. LOUDERMILK: I don't know. 6 C.O. CAFFREY: All right. That's the answer. 7 MR. HILDEBRAND: So the analyses that have been made 8 of the efficacy of the implementation of the San Joaquin 9 River Agreement have not addressed this question? 10 DR. LOUDERMILK: My evaluation of that does not 11 address the selenium issue at all. 12 MR. HILDEBRAND: Let's turn next to salinity. 13 Migrant coming out of the Merced has been in water quality 14 of, perhaps, 150 parts per million and at times would 15 immediately be plenished in the water of 1500 parts per 16 million salinity. Is that or is that not deleterious to 17 fry and smolts? 18 MR. SEXTON: Objection, Mr. Chairman. I think this 19 more properly is a question for the Phase V proceeding. 20 Phase V has already been noticed on the salinity of the 21 river. These questions are clearly getting into that area. 22 MR. JACKSON: Mr. Caffrey? 23 C.O. CAFFREY: Mr. Jackson. 24 MR. JACKSON: If it's going to be done then we're 25 going to need the government's biologists back again to ask CAPITOL REPORTERS (916) 923-5447 1128 1 these questions. If the phasing breaks down the 2 integration of water quality and fish and flow to a point 3 that we can't ask questions that clearly are related, then, 4 the phasing has got to be rethought. 5 C.O. CAFFREY: Thank you for that opinion. 6 Mr. Herrick? 7 MR. HERRICK: I believe we started this phase with me 8 asking the very question of when we would be able to ask 9 the experts to compare the San Joaquin River Agreement with 10 other aspects that related to other phases. I believe the 11 response of the Chairman, after discussing it, was since 12 the scope on cross was a little broader there was a lot of 13 flexibility and you would allow such questions. 14 C.O. CAFFREY: Thank you, Mr. Herrick. Mr. Porgans? 15 MR. PORGANS: Mr. Chairperson, I object on 16 fragmentation of the hearing process, because these things 17 are inextricably linked. You can't separate water amounts 18 or a flow from water quality as it pertains to sustaining 19 salmon species and/or biota. If you can, we've got 20 something new going on. 21 C.O. CAFFREY: Thank you, Mr. Porgans. 22 Let's go off the record for a minute. 23 (Off the record from 1:15 p.m. to 1:18 p.m.) 24 C.O. CAFFREY: All right, we're back on the record. 25 I'm going to allow the question on salinity. Again, it is CAPITOL REPORTERS (916) 923-5447 1129 1 difficult to determine where, in all instances, Phase II 2 ends and Phase V or some other phase begins. I'm going to 3 ask Mr. Hildebrand to try -- in fact, I think in our 4 instructions we even said, or at least implied, if we 5 haven't been all that clear, that there may be some gray 6 areas. 7 MS. LEIDIGH: Yeah. 8 C.O. CAFFREY: So I want you to be careful where you 9 take this, Mr. Hildebrand, because these may be questions 10 that if they go quite far into the salinity area that might 11 more appropriately be asked in Phase V. Let's see where 12 this takes us for the moment. 13 And, again, I'll ask you to try to make your 14 questions less compound and, in fact, if they're less 15 compound there may not be as many objections. Again, I 16 know that takes a certain amount of training and I 17 apologize for the continued interpretations, but it is 18 important for the record that these things be asked in a 19 proper way. So, please, proceed. 20 MR. HILDEBRAND: Can you answer my question, or do we 21 have to start over again? 22 C.O. CAFFREY: Do you remember the question, 23 Mr. Loudermilk? 24 DR. LOUDERMILK: I believe I do. If I don't answer 25 it, Alex, you'll have to ask it again. We're aware that as CAPITOL REPORTERS (916) 923-5447 1130 1 young salmon, be they fry or smolts, as they move 2 downstream from the tributary nursery areas into the main 3 stem of the San Joaquin and into the Delta that they 4 transition through a range of salinities. And in many 5 cases, most cases those fish have adapted to much of that. 6 The literature is unclear as to how salinity might 7 influence the different life stages of salmon, fall-run in 8 particular, so I'd have to say, I don't know. 9 MR. HILDEBRAND: You don't know whether the salinity 10 adjustment occurring abruptly as it would in that example 11 would be deleterious as contrasted to a more gradual change 12 of salinity? 13 DR. LOUDERMILK: I don't know. Like I say, chinook 14 salmon as a group are a fish species that respond to a lot 15 of external stimuli, turbidity, salinity, temperature, all 16 sorts of things, weather changes. They're quite adaptable 17 in that respect. And it's not clear if that would be an 18 impact or not and if so to what extent. So I just don't 19 know. 20 MR. HILDEBRAND: Let's turn next to temperature. If 21 the flow is very low in that reach you would expect a 22 larger temperature, would you not? 23 MR. O'LAUGHLIN: Objection. Ambiguous, lower flow? 24 C.O. CAFFREY: Could you be a little more specific, 25 Mr. Hildebrand. Generally, the testimony has been specific CAPITOL REPORTERS (916) 923-5447 1131 1 to flows in cubic feet per second, et cetera, the questions 2 I should say and the testimony. 3 MR. HILDEBRAND: Let's relate it to the flows that 4 would occur in the absence of the agreement, the San 5 Joaquin River Agreement. 6 DR. LOUDERMILK: And -- 7 MR. HILDEBRAND: In other words, what kind of 8 temperatures do we get now in that reach? 9 DR. LOUDERMILK: The reach from where to where? 10 MR. HILDEBRAND: From the mouth of the Merced to the 11 mouth of the Tuolumne. 12 DR. LOUDERMILK: In what months? 13 MR. HILDEBRAND: During the downstream migration. 14 DR. LOUDERMILK: They're quite warm depending on what 15 kind of runoff conditions are occurring, whether we're 16 under a controlled release situation, or whether we're 17 under a condition like this here. 18 MR. HILDEBRAND: So they may be high enough to be 19 injurious, correct? 20 MR. LOUDERMILK: Some years they are, yes. 21 MR. HILDEBRAND: And would you expect that if you 22 increased the flow above its current level that it would 23 directionally assist in keeping the temperature down in the 24 residence time? 25 DR. LOUDERMILK: Depending on the flow level it may CAPITOL REPORTERS (916) 923-5447 1132 1 modify the residence time in my opinion. It's unclear 2 whether there would be a change in the water temperature. 3 It would probably depend on air temperatures, where we're 4 talking about in the system, and what flow range we're 5 talking about. 6 MR. HILDEBRAND: Does the -- does the San Joaquin 7 River Agreement assure any increase in flow, or decrease in 8 the concentrations of the things we just discussed in the 9 event that the agreement is adopted? 10 MR. O'LAUGHLIN: Objection. Once, again, what things 11 are we referring to? We've been through four subsets 12 already and I don't know which one we're referring to that 13 would be decreased or increased. 14 C.O. CAFFREY: Can you try your question again, 15 Mr. Hildebrand? 16 MR. HILDEBRAND: Does the San Joaquin River Agreement 17 assure any increase in the flow in that reach of the river 18 during the downstream migration? 19 DR. LOUDERMILK: Over existing agreements? 20 MR. HILDEBRAND: Over the existing situation. 21 DR. LOUDERMILK: I believe it would. 22 MR. HILDEBRAND: Throughout the migration period, or 23 only during these pulse flow? 24 DR. LOUDERMILK: Primarily during the pulse-flow 25 period. CAPITOL REPORTERS (916) 923-5447 1133 1 MR. HILDEBRAND: Now, the control plan addresses the 2 Vernalis flows that would be achieved under the control 3 plan, does it not? 4 DR. LOUDERMILK: Yes. 5 MR. HILDEBRAND: But it does not indicate how those 6 flows would be derived; is that correct? 7 DR. LOUDERMILK: To my knowledge, that's correct. 8 MR. HILDEBRAND: Therefore, we do not know whether if 9 the State Board adopts the -- an implementation plan for 10 the control plan whether it would address this issue or not 11 of the conditions in the reach of the river we were just 12 discussing? 13 MR. CAMPBELL: Objection. It calls for speculation. 14 C.O. CAFFREY: I think we can hear an opinion on 15 that. 16 MR. HILDEBRAND: How can we say whether the agreement 17 is equivalent to the control plan if we don't talk about 18 it? 19 C.O. CAFFREY: Don't testify, Mr. Hildebrand. Just 20 let the witness answer the question. 21 DR. LOUDERMILK: I believe that the draft 22 environmental -- draft environmental impact statement as 23 recently amended includes a range of implementation 24 alternatives. So I believe there is some level of 25 assessment -- CAPITOL REPORTERS (916) 923-5447 1134 1 MR. HILDEBRAND: There is a range -- 2 DR. LOUDERMILK: -- implementation -- 3 MR. HILDEBRAND: Pardon me. 4 C.O. CAFFREY: Mr. Hildebrand, wait until he finishes 5 his answer. Don't talk at the same time he's talking. Go 6 ahead, Mr. Loudermilk. 7 DR. LOUDERMILK: Well, I believe the Draft 8 Environmental Impact Report recognizes the range of 9 alternatives evaluated there that do address the -- several 10 different implementation strategies and how flows might 11 change and where they might originate. 12 MR. HILDEBRAND: You're speaking of the environmental 13 impact statement for the control plan? 14 DR. LOUDERMILK: Yes. 15 MR. HILDEBRAND: Turn now to Mr. Morhardt. 16 MR. O'LAUGHLIN: Mr. Chairman, I would like to object 17 at this time since Mr. Morhardt is my witness. 18 Mr. Hildebrand has not made a Notice of Intent to appear in 19 this case. And, therefore, I don't believe is entitled to 20 be asking questions of the witness. And, secondly, if 21 Mr. Hildebrand is appearing on behalf of South Delta Water 22 Agency I'd like to see his bar number, because my 23 understanding is Mr. Hildebrand cannot represent that 24 public agency in this capacity. So I would object to any 25 questions by Mr. Hildebrand of Mr. Morhardt. CAPITOL REPORTERS (916) 923-5447 1135 1 C.O. CAFFREY: Would you like to clarify our 2 regulations in this matter, Ms. Leidigh? 3 MS. LEIDIGH: Yes. Yes, please. One, there is no 4 rule before the Board that a representative of a party has 5 to be a lawyer. Consequently, Mr. Hildebrand can represent 6 a party by asking cross-examination questions if he so 7 wishes. Also, I believe that South Delta Water Agency did 8 file a Notice of Intent to appear in this proceeding. And 9 if he's here on behalf of South Delta Water Agency and they 10 are a party they can ask cross-examination questions. And 11 that is within the rules that we published for this 12 hearing. 13 C.O. CAFFREY: All right. Thank you, Ms. Leidigh. 14 MR. O'LAUGHLIN: I don't disagree with the statements 15 by your counsel. However, I just want to put it on the 16 record my objection and inform Mr. Herrick of such, because 17 my understanding of the law is that Mr. Hildebrand cannot 18 represent a public agency in an adjudicatory hearing. So 19 I'm just making that statement and we'll leave it at that. 20 You can proceed and ask the questions. 21 C.O. CAFFREY: We appreciate that, Mr. O'Laughlin. 22 You are on the record with your objection. I'm going to 23 overrule the objection, but certainly we understand that it 24 is on the record in case you want to subject it to some 25 further review at another time. CAPITOL REPORTERS (916) 923-5447 1136 1 You may proceed, Mr. Hildebrand, with your 2 questions. 3 MR. HILDEBRAND: Mr. Morhardt. 4 DR. MORHARDT: Good afternoon, Mr. Hildebrand. 5 MR. HILDEBRAND: Good afternoon. On your Figure 6 3.2.1 in your testimony you compared the time it took for 7 smolts to migrate from the San Joaquin to Chipps Island as 8 compared to the time it took the dye tracer to do the same 9 thing, did you not? 10 DR. MORHARDT: I did. 11 MS. LEIDIGH: We need to get that screen down. 12 C.O. CAFFREY: We need the screen, also. 13 MR. HILDEBRAND: And you found that -- 14 C.O. CAFFREY: Did we verbally identify the exhibit? 15 MR. HOWARD: Yes. 16 MS. WHITNEY: Yes. 17 C.O. CAFFREY: Thank you. 18 MR. HILDEBRAND: And you found that the smolt arrived 19 at Chipps Island both much more rapidly and in a larger 20 portion than the tracer dye; is that correct? 21 DR. MORHARDT: They arrived at Chipps Island, yes, in 22 a larger percentage. 23 MR. HILDEBRAND: Yes. Where do you think the other 24 dye went that didn't get there? 25 DR. MORHARDT: I have no idea, Mr. Hildebrand. CAPITOL REPORTERS (916) 923-5447 1137 1 MR. HILDEBRAND: Would it be reasonable to assume 2 that some of it was drawn to the export pumps? 3 MR. O'LAUGHLIN: Argumentative. He already asked it. 4 And he already answered the question. He said he doesn't 5 know where the dye went. So I don't know why we need to 6 argue with the witness where it might have gone. 7 C.O. CAFFREY: All right. Sustained. 8 MR. HILDEBRAND: Would the fact that the smolts went 9 on through without the dye imply that the smolts, then, are 10 not just flowing with the flow of -- the net flow of the 11 water? 12 DR. MORHARDT: Yes, it does imply that. 13 MR. HILDEBRAND: It would just tend to indicate, I 14 would assume, then, that the question of the net flow in 15 the Central Delta is not clear as to whether that really 16 affects the escapement of the smolts and whether it does 17 not. 18 DR. MORHARDT: I didn't get the question. 19 C.O. CAFFREY: I didn't hear a question in there. 20 MR. HILDEBRAND: If the smolts moved with the net 21 flow of the water, and I presume that the tracer does -- is 22 intended to do that, then, you would not expect this 23 difference between the smolt arrival and the tracer 24 arrival, would you? 25 MR. O'LAUGHLIN: Objection. What is meant -- vague CAPITOL REPORTERS (916) 923-5447 1138 1 and ambiguous as to "net flow." 2 MR. HILDEBRAND: Well -- 3 C.O. CAFFREY: Can you clarify the question? 4 MR. HILDEBRAND: I can clarify it. You're talking 5 about you have large tidal flows in the Delta. You also 6 have a net downstream flow from the inflow toward the 7 Carquinez Straits and you have some net flows that are 8 induced by the export pumping. That's what I'm referring 9 to. 10 C.O. CAFFREY: Do you understand the question, 11 Dr. Morhardt? 12 DR. MORHARDT: I haven't heard the question, yet, 13 Mr. Caffrey. 14 C.O. CAFFREY: Let's try it again. 15 MR. HILDEBRAND: The question is: If the smolts 16 moved strictly with the net flow of the water, disregarding 17 the tidal flows, then, wouldn't you expect the tracer flow 18 to move in the same manner as the smolts? 19 DR. MORHARDT: If the smolts behaved similarly to the 20 tracer as though they were neutrally buoyant particles, I 21 would expect them to track the same, yes. 22 MR. HILDEBRAND: That's the answer to my question, 23 yes. This would seem to indicate, would it not, that the 24 smolts do not just flow with the net flow of the water? 25 DR. MORHARDT: Yes, that's what it indicates. CAPITOL REPORTERS (916) 923-5447 1139 1 MR. HILDEBRAND: Okay. Do you have any information 2 on the number of fish and types of fish that are damaged by 3 being -- that are caught on the screens of the export 4 pumps? 5 DR. MORHARDT: I don't. 6 MR. HILDEBRAND: Okay. 7 DR. MORHARDT: But there is information we have 8 included in our -- I can't speak about caught on the 9 screens, but we have information in one of the tables in 10 our testimony about the number salvaged at the pumps. 11 MR. HILDEBRAND: Did that include information about 12 the survival of those that were salvaged? 13 DR. MORHARDT: No. 14 MR. HILDEBRAND: Mr. Hanson, when you began with the 15 VAMP process, why did you start with flows lower than those 16 set forth in the '95 Control Plan? 17 DR. HANSON: The flows that were established were 18 based on two different parameters. The first was the flow 19 in the San Joaquin River that would allow the installation 20 and operation of the head of Old River barrier, that 21 established our upper-end flow. 22 The lower-end flow was based on what was 23 established to be the minimum exports that could be 24 operated during the period of the test of 1500 csf. And 25 the two-to-one basic ratio that we were using at the very CAPITOL REPORTERS (916) 923-5447 1140 1 early stage of our development established a 1500 csf 2 export resulting in approximately a 3,000 csf flow. And a 3 7,000 csf maximum because of the operation of the head of 4 Old River barrier. That established the two bookends and 5 then we segregated flows between those two points. 6 MR. HILDEBRAND: Are you familiar with the Vernalis 7 flows stipulated in the control plan? 8 DR. HANSON: Generally, yes. 9 MR. HILDEBRAND: Well, maybe I'll hold a question for 10 one of the other parties if you have only a general 11 knowledge of that. Since you're recommending that the head 12 of Old River barrier be implemented, have you made any 13 analyses of the mitigation that that would require for 14 downstream affects caused by that barrier? 15 DR. HANSON: I have not. 16 MR. HILDEBRAND: How will the VAMP determine whether 17 the '95 plan flows are, indeed, better for salmon or poorer 18 for salmon than the VAMP flows? 19 DR. HANSON: That is not one of the objectives of the 20 VAMP program. 21 MR. HILDEBRAND: Do you believe that the head of Old 22 River barrier would not be installed if the VAMP were not 23 adopted? 24 MR. O'LAUGHLIN: Objection. Calls for speculation. 25 C.O. CAFFREY: Do you know the answer? Do you have CAPITOL REPORTERS (916) 923-5447 1141 1 an answer to the question? 2 DR. HANSON: I don't know whether they would be in 3 the absence of the VAMP. 4 MR. HILDEBRAND: You said the San Joaquin River flows 5 are better than the baseline. What baseline are you 6 referring to? 7 DR. HANSON: We looked at some of the earlier 8 historical data that was provided. This was data 9 comparable to some of the smolt survival studies that the 10 Fish and Wildlife Service began conducting back in the late 11 1960's and early 1970's. 12 MR. HILDEBRAND: So that baseline, then, did not 13 include such things as the FERC flows out of the Tuolumne? 14 DR. HANSON: It did not. 15 MR. HILDEBRAND: So it's not really representative of 16 the current situation? 17 MR. O'LAUGHLIN: Objection. Argumentative. 18 C.O. CAFFREY: Yes, that is argumentative. If you 19 have another question, go ahead and pose it, 20 Mr. Hildebrand. 21 MR. HILDEBRAND: Well, I'll move on. Let's focus on 22 Ms. Brandes, try to get through with you so you do not have 23 to come back after vacation so you don't have to go through 24 more of this. 25 MS. BRANDES: Sounds good to me. CAPITOL REPORTERS (916) 923-5447 1142 1 MR. HILDEBRAND: In Exhibit 1.5 it is stated that the 2 head of Old River barrier was only installed in the 1997 -- 3 in 1997. It was installed in other years, was it not? 4 MS. BRANDES: It was installed in 1992 and in 1994. 5 MR. HILDEBRAND: Uh-huh. I'm not clear from the 6 answers you gave to previous interrogators why you didn't 7 look at those years in connection with your data. 8 MS. BRANDES: Well, they're all included in the 9 table. But as I mentioned that in 1992 there was a 10 problem, because the way we were approaching evaluating the 11 barrier was to put smolts in at Mossdale without the 12 barrier and then install the barrier; and then put more 13 smolts in and make a comparison between survival through 14 the Delta with and without the barrier. 15 What happened in 1992 was after the barrier was 16 put in place temperatures increased. So we got survival 17 that was worse after the barrier was in place than before. 18 In 1994 all of the resulting survival indices were so low 19 that we could not detect a difference associated with the 20 barrier. 21 MR. HILDEBRAND: I believe you stated that the fish 22 can get quantifiable benefits with increased flows at 23 Stockton and that it appears that the rate of flows at 24 Stockton are correlative to survivability. Is that a 25 correct statement? CAPITOL REPORTERS (916) 923-5447 1143 1 MS. BRANDES: I believe in general, yes, that's what 2 I said. 3 MR. HILDEBRAND: Wouldn't the higher '95 plan flows, 4 control plan flows, then, be better for salmon than the 5 VAMP flows as long as the head of Old River barrier is 6 installed? 7 MS. BRANDES: I haven't done an analysis on the 8 equivalency of the 1995 Water Quality Control Plan with the 9 VAMP flows. 10 MR. HILDEBRAND: But you are familiar with what 11 flows -- Vernalis flows were called for in the control 12 plan, are you not? 13 MS. BRANDES: Again, in general terms. 14 MR. HILDEBRAND: Are you aware that the -- well, let 15 me put this the other way around. Do you know that there 16 were two different sets of control plan Vernalis flow 17 requirements depending -- that were related to the location 18 of X2? 19 MS. BRANDES: Related to X2? 20 MR. HILDEBRAND: Uh-huh. 21 MS. BRANDES: I'm not aware of the connection between 22 X2 and flows at Vernalis. Is that what the question was? 23 MR. HILDEBRAND: Why is -- well, I'll ask 24 Mr. Kjelson, then, when I come to him. If the VAMP were 25 not adopted wouldn't you continue your coded-wire tag CAPITOL REPORTERS (916) 923-5447 1144 1 experiment? 2 MS. BRANDES: I believe that we would. 3 MR. HILDEBRAND: Mr. Kjelson, let's start with the 4 question I just asked of Pat. Are you familiar with the 5 Vernalis flow requirements in the control plan? 6 DR. KJELSON: Yes, based on simply reading the table 7 in the plan. 8 MR. HILDEBRAND: Well, when you read the table in the 9 plan, does it indicate that the control plan calls for 10 different flows at Vernalis depending on the location of 11 X2? 12 DR. KJELSON: I had not noticed that. I may have 13 recalled it at one time, but it doesn't appear to me with a 14 straight look at the table that that is the case. 15 MR. HILDEBRAND: Doesn't the table indicate two 16 different flows for a given year type? 17 DR. KJELSON: Yes, it does. 18 MR. HILDEBRAND: And doesn't the footnote explain why 19 there are two different figures? 20 DR. KJELSON: It might, but maybe I'm a little slow 21 at finding that. I think it is -- now that you mentioned 22 it, footnote number 17 does make reference to the two parts 23 per thousand and, apparently, it does relate to that. 24 MR. HILDEBRAND: So, then, under the control plan 25 depending on the location of X2 you might have the higher CAPITOL REPORTERS (916) 923-5447 1145 1 of those figures enter into it? 2 DR. KJELSON: That is true. 3 MR. HILDEBRAND: Is there any similar provision in 4 the San Joaquin River Agreement that would call for a 5 larger flow in the event that the X2 is a problem? 6 DR. KJELSON: Not to my knowledge. 7 MR. HILDEBRAND: So in that particular respect, then, 8 the San Joaquin River Agreement would not be equivalent to 9 the control plan requirement; is that correct? 10 DR. KJELSON: I haven't analyzed it in that respect. 11 But I think in my earlier testimony I noted in a purely 12 rough comparison between the two plans that, in fact, there 13 were some water type years that it appeared that the plan 14 had slightly higher flows than the VAMP did. 15 MR. HILDEBRAND: Would you characterize the 16 difference between those two numbers as being slight? 17 DR. KJELSON: Slight relative to what? 18 MR. HILDEBRAND: Proportionately, as a proportion of 19 the flow. 20 DR. KJELSON: In some cases it appears, particularly 21 at the higher flows, that the proportions may be of a 22 greater difference, if I'm understanding your question. 23 MR. HILDEBRAND: Well, let's put it another way. I 24 believe you testified earlier that for each 500 csf of 25 Vernalis flow you anticipated an 8-percent loss in smolt CAPITOL REPORTERS (916) 923-5447 1146 1 survival; is that correct? 2 DR. KJELSON: Yes, based on Ms. Brandes's model. 3 MR. HILDEBRAND: So if you take one of those 4 differences there, what kind of affect would that have on 5 the smolt survival? 6 DR. KJELSON: Well, for example, in critical years if 7 you compared the 3200 and, given it out to your comment, I 8 gather you would like me to compare 3200 to 3540 -- 9 MR. HILDEBRAND: Yes. 10 DR. KJELSON: -- would be approximately a 300 csf 11 difference. And roughly speaking, assuming that the 12 equation would work out similar to one I testified -- the 13 example I testified to, it would probably be a four to six 14 percent -- 15 MR. HILDEBRAND: Uh-huh. 16 DR. KJELSON: -- drop in survival with the lower 17 flow. 18 MR. HILDEBRAND: Now, in the case of the control plan 19 if you take the lower number there, 3110, I think it is. 20 DR. KJELSON: Right. 21 MR. HILDEBRAND: And you compare that to the San 22 Joaquin River Agreement minimum, which is 2,000, that's a 23 difference of 1100 csf. So if you apply your 8-percent 24 figure per 500,000, what number would you get to the loss 25 to the salmon? CAPITOL REPORTERS (916) 923-5447 1147 1 DR. KJELSON: I think I would -- am correct in 2 correcting you that the target flow would never be below 3 3200 for VAMP. 4 MR. HILDEBRAND: I'm not talking about the VAMP, I'm 5 talking San Joaquin River Agreement. San Joaquin River 6 Agreement permits the flow to get down to 2,000. 7 DR. KJELSON: Then -- then it would have a thousand 8 csf difference. And I don't have that equation in front of 9 me to be exact, but it would probably have a 10, 15-percent 10 difference in general. Excuse me, a minute. 11 Ms. Brandes reminded me of an important point, 12 that this would reflect to the proportion of the smolt 13 population that would be moving through the Delta during 14 that 31-day period. 15 MR. HILDEBRAND: I appreciate that. But if you would 16 expand that, then, to the total period of downstream 17 migration it would be totally somewhat more again, since 18 the San Joaquin River Agreement does not provide any 19 increased flow at the other time. 20 C.O. CAFFREY: Wait a minute. Was that a question, 21 Mr. Hildebrand? 22 MR. O'LAUGHLIN: It was a statement. 23 C.O. CAFFREY: It sounded like testimony. 24 MR. HILDEBRAND: I was asking a question. 25 C.O. CAFFREY: You need to put it in the form of a CAPITOL REPORTERS (916) 923-5447 1148 1 question. 2 DR. KJELSON: I agree with your general statement you 3 just made. 4 MR. HILDEBRAND: Okay. 5 DR. KJELSON: In the context of what was talked 6 about. 7 MR. HILDEBRAND: Do you support the operation of the 8 tidal barriers during the operation of the head of Old 9 River barrier? 10 DR. KJELSON: I -- I have not been close to that 11 whole issue which you can appreciate is extremely 12 complicated technically from a policy standpoint. So I 13 decline to comment on that. 14 MR. HILDEBRAND: Have you considered the hydraulic 15 barrier that would be provided by the three tidal barriers 16 when you cannot install the head of Old River barrier? 17 DR. KJELSON: Only in the general sense that you've 18 raised that issue but, again, I've not been close to that 19 issue. 20 MR. HILDEBRAND: I think that's all, Mr. Chairman. 21 C.O. CAFFREY: All right. Thank you very much, 22 Mr. Hildebrand. Mr. Nomellini in the room? 23 MR. HERRICK: He just stepped out. 24 C.O. CAFFREY: Thank you, Mr. Herrick. If you 25 could -- we'll go off the record for a moment to see if CAPITOL REPORTERS (916) 923-5447 1149 1 Mr. Nomellini is available. 2 (Off the record from 1:46 p.m. to 1:47 p.m.) 3 C.O. CAFFREY: We're back on the record. 4 Mr. Nomellini, it's your turn to cross-examination this 5 panel. 6 ---oOo--- 7 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 8 BY CENTRAL DELTA PARTIES 9 BY DANTE JOHN NOMELLINI 10 MR. NOMELLINI: Thank you, Mr. Chairman. For the 11 record, Dante John Nomellini on behalf of the Central Delta 12 Parties. 13 Mr. Morhardt, my first set of questions are for 14 you. In your testimony you indicated that the correlation 15 between Vernalis flow and salmon smolt survival, I'm 16 talking about the San Joaquin River salmon, was lacking and 17 I'm not sure I have the right word. And you referred to 18 Figure 3.1.7 in your testimony. Is that a correct 19 characterization of your testimony? 20 DR. MORHARDT: I don't think it was -- 21 MR. NOMELLINI: That's not the right chart. It's 22 3.1 -- that's it. It's from SJRGA Exhibit 6. 23 C.O. CAFFREY: Thank you. 24 DR. MORHARDT: Could you repeat the word you used? 25 MR. NOMELLINI: I used the work "lacking." Could CAPITOL REPORTERS (916) 923-5447 1150 1 you, please, describe or characterize the correlation? 2 DR. MORHARDT: From the data on Figure 3.1.7 there is 3 no correlation between the San Joaquin River at Vernalis 4 and smolt survival. 5 MR. NOMELLINI: Is that your opinion that there is no 6 correlation between Vernalis flow and San Joaquin River 7 smolt survival? 8 DR. MORHARDT: Well, it's more than an opinion. It's 9 a fact that the data shown on this figure there is no 10 correlation. 11 MR. NOMELLINI: All right. So based on this figure 12 your opinion is consistent with the figure produced? 13 DR. MORHARDT: I hope it is. 14 MR. NOMELLINI: Now, with regard to the flow -- the 15 San Joaquin River flow at Stockton, is it your opinion that 16 there is also no correlation between San Joaquin salmon 17 smolt survival and flow? 18 DR. MORHARDT: Other than the data shown in the 19 Figure 3.3.1 of our testimony, I don't -- I haven't made an 20 analysis of it. The -- the -- in Figure 3.3.1 of our 21 testimony we show an R-squared of .49 which means about the 22 same amount of survival is related to flow at Stockton as 23 is at Vernalis, assuming you use the flow range between 0 24 to 8,000 at Stockton which corresponds to the flow ranges 25 of 0 to 20,000 at Vernalis. CAPITOL REPORTERS (916) 923-5447 1151 1 MR. NOMELLINI: So the answer is that it's your 2 opinion there is no correlation between -- 3 DR. MORHARDT: No, there is some correlation over the 4 flow range of zero to 8,000 at Stockton which corresponds, 5 at least, in the absence of a barrier to a flow of zero to 6 20,000 at Vernalis. 7 MR. NOMELLINI: Have you formulated any opinion as to 8 what flow at Stockton would be required to protect the San 9 Joaquin River salmon smolt? 10 DR. MORHARDT: No, I have not. 11 MR. NOMELLINI: And is there a correlation between 12 the volume of water exported by the state and federal pumps 13 and San Joaquin River salmon smolt survival -- 14 DR. MORHARDT: I -- 15 MR. NOMELLINI: -- in your opinion? 16 DR. MORHARDT: The data that we have shown on Figure 17 3.1.1 shows no correlation whatever. 18 MR. NOMELLINI: And is that your opinion? 19 DR. MORHARDT: Well, based on the data that we 20 presented it's clear there's no correlation on these data. 21 Yes, it's my opinion that there is no correlation. 22 MR. NOMELLINI: All right. Now, with regard to page 23 12 of your testimony, which again is SJRGA Exhibit 6, the 24 third -- well, fourth paragraph down you reference that -- 25 I'll read you the sentence here. It says that is, "The CAPITOL REPORTERS (916) 923-5447 1152 1 salvage re-release is sufficient to explain all Chipps 2 Island recoveries of this group even allowing for some 3 uncertainty in the expansions of salvage and per all data 4 and for some post-salvage mortality." 5 Do you see that language? 6 DR. MORHARDT: I don't see it, but I think, perhaps, 7 it's because we have different versions of the testimony 8 here. 9 MR. PORGANS: Here. 10 DR. MORHARDT: It is -- I'm sorry, I'm looking at 11 page 11. 12 MR. NOMELLINI: The fourth paragraph down. 13 DR. MORHARDT: Yes, I see it. 14 MR. NOMELLINI: And that is -- I think I read it 15 correctly. Did you understand what I read, or -- 16 DR. MORHARDT: Yes. 17 MR. NOMELLINI: -- was I distracting when you were 18 looking? 19 DR. MORHARDT: No, I understand. 20 MR. NOMELLINI: Okay. Does that tell us that all of 21 this release of fish was picked up and salvaged at the 22 pumps? 23 DR. MORHARDT: That tells us that the number of fish 24 that were recovered at Chipps Island were no more than 25 those which could have been delivered as a result of CAPITOL REPORTERS (916) 923-5447 1153 1 salvage at the pumps. We don't know, of course, whether 2 they were the same fish. 3 MR. NOMELLINI: Okay. So it's a raw-number 4 comparison? 5 DR. MORHARDT: Yes. 6 MR. NOMELLINI: And if they weren't the same fish, 7 were there other tagged fish released at the same time as 8 this particular reference group? 9 DR. MORHARDT: There was a large group of tagged 10 fish. They all have the same number. So when they're 11 recovered at Chipps Island one doesn't know what route they 12 took. 13 MR. NOMELLINI: Does the fact that you have a very 14 high salvage rate at the export pumps indicate to you that 15 there might be a correlation between export pumping and 16 salmon smolt survival? 17 DR. MORHARDT: There certainly could be. 18 MR. NOMELLINI: You think there is not? 19 DR. MORHARDT: No, I don't have that. My opinion on 20 it is that the data that we have that shows the salvage 21 rate versus export pumping doesn't show that there is. I 22 don't know whether there is or there isn't. 23 MR. NOMELLINI: If the export pumps were shut down 24 for the entire period of salmon smolt outmigration, I'm 25 talking about San Joaquin River salmon, could the Vernalis CAPITOL REPORTERS (916) 923-5447 1154 1 flow requirement be reduced in your opinion? 2 DR. MORHARDT: I don't know, because we have not 3 found any correlation between the Vernalis flow and smolt 4 survival. 5 MR. NOMELLINI: All right. If I change that question 6 with regard to flow at Stockton. 7 DR. MORHARDT: Yes. 8 MR. NOMELLINI: Would your opinion be the same? 9 DR. MORHARDT: Yes, it would. 10 MR. NOMELLINI: So it wouldn't make any difference? 11 DR. MORHARDT: Not that it wouldn't make any 12 difference, but that I don't know if it would make any 13 difference. 14 MR. NOMELLINI: Does any member of this panel believe 15 that there is a correlation between export pumping and San 16 Joaquin River salmon smolt survival? Let's start right 17 here, Bill? 18 DR. LOUDERMILK: If there's any relationship 19 between -- 20 MR. NOMELLINI: Any correlation between the export 21 pumping and San Joaquin River salmon smolt survival. 22 DR. LOUDERMILK: I'm aware of multiple regression 23 analyses that relate flow exports and other factors to San 24 Joaquin escapements, the number of adults that return to 25 spawn in the San Joaquin, but I'm not aware of a CAPITOL REPORTERS (916) 923-5447 1155 1 relationship between exports and smolt survival at this 2 point. 3 MEMBER BROWN: Mr. Chairman, I'm having trouble 4 hearing him. 5 DR. LOUDERMILK: I'm sorry. 6 C.O. CAFFREY: Yes, draw the mic a little closer, 7 Mr. Loudermilk. Thank you. Could you try at least the 8 summarization of your answer, again? 9 DR. LOUDERMILK: I'm not aware of a direct 10 relationship between San Joaquin fall-run chinook salmon 11 smolt and exports. But I am aware of multiple regression 12 relationships between exports, flows, and the number of 13 adult salmons that return to the San Joaquin basin. 14 MR. NOMELLINI: Ms. Brandes, on that same question, 15 do you believe that there is no correlation between export 16 pumping and San Joaquin River smolt survival? 17 MS. BRANDES: Well, I believe that there probably is 18 a relationship. And based on what Bill just said about the 19 relationship between the multiple regression and the 20 relationships between flows and exports and adult 21 escapement, the cause of the mechanisms for that returning 22 escapement is assumed to be related to the smolt survival 23 during that particular stage. But -- but it may not just 24 be in the Delta, it may also influence the things that are 25 occurring upstream as well. CAPITOL REPORTERS (916) 923-5447 1156 1 MR. NOMELLINI: All right. Now, staying right on 2 that: Is there a loss of salmon smolts in the salvaging 3 process at the export pumps? 4 MS. BRANDES: Yes. 5 MR. NOMELLINI: Why is that not a correlation between 6 export pumping and San Joaquin River salmon smolt survival? 7 MS. BRANDES: Are you talking about the loss salvage? 8 MR. NOMELLINI: The loss in the salvaging process. 9 MS. BRANDES: Well, I think what we see at Chipps 10 Island is the survivors. So you have loss associated with 11 exports. You have a loss associated with, you know, the 12 screen efficiency. You have loss associated with predation 13 prior to the screening. There's a combination of things. 14 Also, you have how many fish do you see at the 15 salvage facility that is impacted by how close they're 16 released to the salvage facility. Mossdale without a 17 barrier, or Upper Old River you get more fish at the 18 salvage facility than you would if fish were released 19 either downstream at Dos Reis or even upstream, because you 20 have less fish available to the export salvage facility at 21 that point. So it's not a direct relationship. 22 MR. NOMELLINI: But there is a correlation? 23 MS. BRANDES: I guess I'm getting confused, because 24 you're using different words. You're saying "loss." 25 You're using "salvage." And you're using "exports." And CAPITOL REPORTERS (916) 923-5447 1157 1 I'm getting confused which you're asking me about. 2 MR. NOMELLINI: All right. With regard to salmon -- 3 San Joaquin River salmon smolt survival, where is that 4 measured? 5 MS. BRANDES: At Chipps Island. 6 MR. NOMELLINI: At Chipps Island. 7 MS. BRANDES: Between the release point, wherever 8 that may be, at Mossdale or Dos Reis to Chipps Island. 9 MR. NOMELLINI: All right. If we have a fish that 10 was released at Old River, salmon smolt, he went to the 11 pumps. He was killed in the salvage facility. He didn't 12 show up at Chipps Island, wouldn't that establish a 13 correlation between San Joaquin River salmon smolt 14 survival, at least that one, and the export pumping? 15 I'm not going to stay with this too much longer. 16 C.O. CAFFREY: I didn't say a thing. 17 MS. BRANDES: I think the problem we're getting 18 confused about is that likely influences the number of fish 19 you will see at Chipps Island by how many are killed at the 20 salvage facility. Whether there's a direct correlation, 21 that hasn't been established. 22 MR. NOMELLINI: In my example of the one fish there 23 was a direct correlation, right -- 24 MS. BRANDES: For that one. 25 MR. NOMELLINI: --the only fish that was released, he CAPITOL REPORTERS (916) 923-5447 1158 1 died, so there's a hundred-percent correlation. Would you 2 agree with that? 3 C.O. CAFFREY: Thanks for making that a question. 4 MR. NOMELLINI: I knew you were going to jump on me 5 if I didn't. With that example that would be a 6 hundred-percent correlation, right? 7 MS. BRANDES: I'm not sure I still understand the 8 question that you're asking. 9 MR. NOMELLINI: All right. Mr. Kjelson, you have the 10 answer to put me straight? 11 C.O. CAFFREY: Do you understand the question, 12 Mr. Kjelson? 13 DR. KJELSON: Well, I understand the issue. And I 14 think the confusion is when you're using the word, 15 "correlation," we're so primed to the statistical 16 correlation in a significant sense in all that. I think 17 all you're saying is: The salvage, is it a factor that 18 contributes to the mortality of the tagged fish, and, of 19 course, it does. 20 MR. NOMELLINI: Okay. So if I ask the question here: 21 Whether or not export pumping contributes to the mortality 22 of San Joaquin River salmon smolt everybody here would say 23 yes, right? 24 DR. LOUDERMILK: Right. 25 MS. BRANDES: Yes. CAPITOL REPORTERS (916) 923-5447 1159 1 MR. NOMELLINI: One, two, Kjelson, Morhardt, Hanson. 2 All right, we're unanimous. So the question is: To what 3 extent that constitutes a correlation? Is that the 4 question? Is that what you're telling me, Mr. Kjelson? 5 MR. O'LAUGHLIN: Mr. Chairman, I have to object. 6 MR. NOMELLINI: Okay, I will withdraw it. 7 C.O. CAFFREY: It was a question. 8 MR. O'LAUGHLIN: Question of what? 9 MR. NOMELLINI: All right. Now, Mr. Morhardt, do you 10 have an opinion as to whether or not the San Joaquin River 11 Agreement, this is the Hildebrand agreement that we're 12 talking about that is the subject of this phase of the 13 hearing, will provide environmental benefits equivalent to 14 the San Joaquin River portion of the 1995 Water Quality 15 Control Plan? 16 DR. MORHARDT: I have not examined that at all. 17 MR. NOMELLINI: All right. Mr. Loudermilk, did you 18 examine that question? I'll ask it again. Do you have an 19 opinion as to whether or not the San Joaquin River 20 Agreement will provide environmental benefits equivalent to 21 the San Joaquin River portion of the 1995 Water Quality 22 Control Plan? 23 DR. LOUDERMILK: In my testimony I think I answered 24 that by saying if the San Joaquin River Agreement and -- 25 and the appendix referred to as the Vernalis Adaptive CAPITOL REPORTERS (916) 923-5447 1160 1 Management Program are successfully implemented I think the 2 answer is, yes. 3 MR. NOMELLINI: All right. In your consideration of 4 the equivalency of that, did you look at fish and wildlife 5 other than San Joaquin River salmon? 6 DR. LOUDERMILK: From the wildlife perspective, no. 7 The focus of the river agreement and the Vernalis flow 8 objective in the '95 Water Quality Control Plan is San 9 Joaquin fall-run chinook salmon, so our focus was there. 10 From the perspective of other fish species in 11 working through the various drafts with Doctors Herbold and 12 Hanson, Dr. Kjelson, and others, I forget how many drafts 13 we went through, but it was pretty -- a great number of 14 them. There was -- and Mr. Hanson -- or Dr. Hanson's 15 earlier testimony indicated that there was consideration 16 given to the meeting, as a minimum, the biological 17 opinions, current existing biological opinions. So species 18 such as Delta smelt, winter-run salmon were considered in 19 the development of the San Joaquin River Agreement and the 20 VAMP study plan. 21 MR. NOMELLINI: And you found that there was an 22 equivalency; is that correct, in your opinion? 23 DR. LOUDERMILK: Again, if implemented successfully I 24 believe that there will be an equivalency. 25 MR. NOMELLINI: All right. Ms. Brandes, did you CAPITOL REPORTERS (916) 923-5447 1161 1 formulate an opinion as to whether or not the San Joaquin 2 River Agreement will provide environmental benefits 3 equivalent to the San Joaquin River portion of the 1995 4 Water Quality Control Plan? 5 MS. BRANDES: I did not do any of that analysis. 6 MR. NOMELLINI: Okay. And, Mr. Kjelson, I know you 7 testified previously that you did; is that correct? 8 DR. KJELSON: Yes. 9 MR. NOMELLINI: And your Exhibit 2-G sets forth the 10 factors -- well, tell me what 2-G shows. And I'm not sure 11 I've got the right one. I've got the one that was 12 submitted with the testimony. 13 DR. KJELSON: We've modified that and -- if you like 14 we can put that up. 15 MR. NOMELLINI: If you would, it would be 16 appreciated. All right. Now, with regard your Exhibit 17 2-G, which is part of, I guess, DOI 2; is that correct? 18 DR. KJELSON: (Witness shakes head.) 19 MR. NOMELLINI: Now, on this you show average smolt 20 survival -- let's see here. Okay, under the head of Old 21 River barrier you show smolt survival increases with head 22 of Old River barrier. Was there any reason why you didn't 23 mention Delta smelt, or other species of fish in this 24 particular exhibit? 25 DR. KJELSON: My equivalency, general equivalency CAPITOL REPORTERS (916) 923-5447 1162 1 analysis was only restricted to San Joaquin salmon. 2 MR. NOMELLINI: Okay. Do you have an opinion as to 3 the equivalency with regard to fish and wildlife species 4 other than San Joaquin River salmon? 5 DR. KJELSON: No. 6 MR. NOMELLINI: Mr. Hanson, do you have an opinion as 7 to whether or not the San Joaquin River Agreement will 8 provide environmental benefits equivalent to the San 9 Joaquin River portion of the 1995 Water Quality Control 10 Plan? 11 DR. HANSON: I did evaluate that although I evaluated 12 it specifically for the VAMP agreement rather than the 13 broader San Joaquin River Agreement. And it does in our 14 analysis show that it would be comparable. 15 MR. NOMELLINI: What is the significance of that 16 distinction? 17 DR. HANSON: Only that when we looked at the issue, 18 we looked at the flows. We looked at the exports. We 19 looked at the bypass for the project, the flow minus the 20 exports. And we looked at the installation of the head of 21 Old River barrier. That was the scope of what we included 22 in our assessment. We didn't look at anything -- and I'm 23 not sure there's much more to look at beyond that that 24 would be included in the agreement. 25 MR. NOMELLINI: All right. So you did not take into CAPITOL REPORTERS (916) 923-5447 1163 1 consideration any contractual provisions that may allow 2 off-ramps from the agreement, or things like that? 3 DR. HANSON: Not explicitly, no. 4 MR. NOMELLINI: So you're assuming that those are the 5 flows set forth in the San Joaquin River Agreement and you 6 compared that to the flows in the 1995 Water Quality 7 Control Plan? 8 DR. HANSON: One plan against the other plan. 9 MR. NOMELLINI: Did you consider the impact on fish 10 and wildlife species other than the San Joaquin River 11 salmon? 12 DR. HANSON: In developing the VAMP program, as 13 Mr. Loudermilk points out, we did not get extensive -- I'm 14 not even sure we considered wildlife at all, with respect 15 to other species as he pointed out and as I testified 16 earlier, we did include other species including Delta smelt 17 as well as other Central Delta species. 18 The primary focus, however, has always been on San 19 Joaquin River fall-run chinook salmon. And in evaluating 20 the equivalency we looked at several things. We looked at 21 how we think the flows, the exports, the bypass flows and 22 the head of the Old River barrier under the VAMP program 23 and the corresponding elements under the Water Quality 24 Control Plan would influence the salmon smolt survival. 25 That was our first priority, but many of the CAPITOL REPORTERS (916) 923-5447 1164 1 processes that were included in the analysis, the reduction 2 in exports, the increase in the bypass flows may also 3 benefit other species inhabiting the Delta. We didn't have 4 the information necessary to do any kind of quantitative 5 assessment of that, but it was given some consideration in 6 the development of the plan and subsequent analysis. 7 MR. NOMELLINI: All right. With regard to the 8 comparison of the VAMP flow portion of the San Joaquin 9 River Agreement and the flows required in the 1995 Water 10 Quality Control Plan -- 11 DR. HANSON: Yes. 12 MR. NOMELLINI: -- you would agree, would you not, 13 that the maximum flows provided for in the VAMP are not as 14 high as the flows provided in the 1995 Water Quality 15 Control Plan? 16 DR. HANSON: Well, VAMP has two components. It has a 17 component with the head of Old River barrier installed, 18 which are flows that are basically 7,000 csf and less. But 19 VAMP does not prohibit flows that are in excess of that. 20 It simply would occur in the absence of head of Old River 21 barrier being installed. 22 MR. NOMELLINI: All right. You would agree -- excuse 23 me. 24 DR. HANSON: Pardon me? 25 MR. NOMELLINI: You would agree that such higher CAPITOL REPORTERS (916) 923-5447 1165 1 flows are not required under the VAMP; whereas, under the 2 1995 Water Quality Control Plan they are required? 3 DR. HANSON: Under the VAMP they are not required, 4 per se. They would occur. 5 MR. NOMELLINI: All right. I thought this was going 6 to be an easy one. Do you know what the maximum flow is, 7 the maximum project flow under the VAMP is? 8 DR. HANSON: Under what we refer to as VAMP, and let 9 me make a distinction. In Appendix A to the agreement 10 there is a document -- Appendix A includes a document that 11 lays out the experimental design for what is referred to as 12 the salmon smolt survival studies. That experimental 13 design includes two components. The first component is 14 referred to, in my way of thinking, as the VAMP salmon 15 survival studies. And those are outlined in table one of 16 Appendix A, or Attachment A and they have Vernalis flows 17 going up to 7,000 csf. 18 There are also provisions within a broader 19 experimental design to accommodate continued testing and 20 evaluation at higher flows when the head of Old River 21 barrier would not be installed. And under those conditions 22 they are not true VAMP data points. However, they are 23 important data points in terms of our understanding of the 24 factors affecting salmon smolt survival. And that is 25 included in the attachment and has provisions for basically CAPITOL REPORTERS (916) 923-5447 1166 1 three sets of flows up to 10,000, up to 15,000 and over 2 15,000 csf. So a wide range of flows are included as part 3 of this approach. 4 MR. NOMELLINI: Are those required flows? 5 DR. HANSON: They were not required. 6 MR. NOMELLINI: All right. So we if we talk about 7 required flows in comparison to the 1995 Water Quality 8 Control Plan and the San Joaquin River Agreement, including 9 its attachment VAMP, that the maximum required flow is the 10 7,000 cubic feet per second? 11 DR. HANSON: Under the required experimental design, 12 that's correct. 13 MR. NOMELLINI: I'm going to stay on required now. 14 Now, do you know what the required flow is under the 1995 15 Water Quality Control Plan for a wet year? Page 19. 16 DR. HANSON: Under wet year I believe looking at 17 table three it would be 7,330, or 8,620. 18 MR. NOMELLINI: And for an above-normal year? 19 DR. HANSON: 5,730, or 7,020. 20 MR. NOMELLINI: You would agree, would you not, that 21 the required flows under the 1995 Water Quality Control 22 Plan are higher than the required flows under the San 23 Joaquin River Agreement for a wet year, would you not? 24 DR. HANSON: The required flows are the flows that 25 would be there, but would not necessarily be different. CAPITOL REPORTERS (916) 923-5447 1167 1 MR. NOMELLINI: I understand, the required flows. 2 DR. HANSON: The required flows would be higher under 3 the plan. 4 MR. NOMELLINI: And what about with regard to an 5 above-normal year? 6 DR. HANSON: That becomes more difficult to assess, 7 because the VAMP program doesn't have the same water year 8 classifications. It doesn't stipulate an above-normal or 9 below-normal type year. But it has -- as our second 10 classification, it has a flow of 5,000 csf, second down 11 from the top. 12 MR. NOMELLINI: And that would be -- you're saying 13 it's not comparable to an above-normal year? 14 DR. HANSON: I don't believe that it is in the same 15 jargon, but for this purpose that might be an 16 appropriate -- 17 MR. NOMELLINI: Does the San Joaquin River Agreement 18 have a different year classification than the 1995 Water 19 Quality Control Plan, if you know? 20 DR. HANSON: I better not answer. 21 MR. NOMELLINI: All right. With regard to a -- the 22 minimum flow target in the San Joaquin River Agreement 23 including the Attachment A, and I'm talking about the 24 minimum required flow, what is that amount? 25 DR. HANSON: The minimum required is 3,200. CAPITOL REPORTERS (916) 923-5447 1168 1 MR. NOMELLINI: And where is that provided in the San 2 Joaquin River Agreement? 3 DR. HANSON: That is in table one. 4 MR. NOMELLINI: Would you agree, then, on the target 5 flow on page seven, paragraph 5.5 of the San Joaquin River 6 Agreement it provides a target flow of 2,000 cubic feet per 7 second? 8 DR. HANSON: That is an element of the agreement. 9 That was one of the clauses that was included, but it's not 10 part of the same table that we're including in terms of the 11 experimental design for the VAMP program. 12 MR. NOMELLINI: All right. Now, staying on required 13 flow again. 14 DR. HANSON: Okay. 15 MR. NOMELLINI: Is it your testimony that the 16 required minimum flow under the San Joaquin River Agreement 17 is 3200 cubic feet per second? 18 DR. HANSON: Considering all of the various elements, 19 the off-ramps and the other calculations that are included, 20 the minimum required for the experimental design is 3,200. 21 The minimum specified in the agreement as a whole would be 22 the 2,000. 23 MR. NOMELLINI: Okay. And comparing that to the 1995 24 Water Quality Control Plan for a critical year, what does 25 the 1995 Water Quality Control Plan provide? CAPITOL REPORTERS (916) 923-5447 1169 1 DR. HANSON: 3,110 to 3,540. 2 MR. NOMELLINI: So the alternate comparison would be 3 in excess, the 1995 Water Quality Control Plan would be in 4 excess of the 3200 in the studied part of the VAMP? 5 DR. HANSON: Or the alternate higher flow. 6 MR. NOMELLINI: Now, you would admit, would you not, 7 that for particular years the 1995 Water Quality Control 8 Plan could provide greater required flows than the San 9 Joaquin River Agreement? 10 DR. HANSON: For required flows, that's correct. 11 MR. NOMELLINI: And that's for particular years? 12 DR. HANSON: Yes. 13 MR. NOMELLINI: Now, have you made a comparison of 14 the average over a 12-year period as to what those 15 differences might be? 16 DR. HANSON: We -- and I say, "we," being Bruce 17 Herbold and I, Bruce primarily working with the 18 hydrologists put together a series of modeling runs that 19 included a much longer period of hydrology to compare what 20 the flows would be under the Water Quality Control Plan and 21 those that would be under the VAMP program. And it was the 22 basis of that longer period of hydrologic analyses that we 23 evaluated the comparability between the two. And what we 24 found in that analysis is that in some of the years the 25 VAMP flows were lower than those in the plan. In some CAPITOL REPORTERS (916) 923-5447 1170 1 years the VAMP flows were higher. In the majority of years 2 they were comparable. 3 MR. NOMELLINI: So over a long period of time this 4 study would reflect that they should be comparable; is that 5 correct? 6 DR. HANSON: That's what the analysis that we looked 7 at supports, but there is variance about that. 8 MR. NOMELLINI: All right. And with regard to a 9 short period, like 12 years, it would be unknown as to 10 whether or not it was comparable, or would be different -- 11 DR. HANSON: Correct. 12 MR. NOMELLINI: -- is that correct? 13 DR. HANSON: Correct, we did not do an analysis -- I 14 wasn't party to an analysis that was limited only to 12 15 years. 16 MR. NOMELLINI: In your determination of equivalency 17 between the San Joaquin River Agreement and the 1995 Water 18 Quality Control Plan, did you recognize the 12-year period 19 of the agreement? 20 DR. HANSON: We did recognize the 12-year period. 21 MR. NOMELLINI: And you still found that it was 22 equivalent? 23 DR. HANSON: When we did our evaluation we compared 24 not just the flows, but we looked at the package of actions 25 that would benefit salmon. The changes in export rates, CAPITOL REPORTERS (916) 923-5447 1171 1 the changes in flow, and the change in bypass, 2 particularly. We looked and compared those for individual 3 years. But then we stepped back and we compared it for the 4 longer-term record that we had available. And it was based 5 on that longer term hydrologic record, the results of those 6 modeling analyses that we made our analysis. And it was on 7 the basis of the results of that that Bruce and I had a 8 number of discussions about the issue of equivalency and we 9 drew our conclusions. 10 MR. NOMELLINI: Now, with regard to varying the 11 export rate with regard to the 1995 Water Quality Control 12 Plan, would you agree that since the plan was adopted the 13 operations that the project have been varied to provide a 14 limit on the export pumping rate during the pulse flow? 15 DR. HANSON: There are limits and the operation of 16 the project has been varied to meet those limits. 17 MR. NOMELLINI: Is there any reason you can give why 18 that would -- that that same cooperative effort would not 19 continue in the absence of the San Joaquin River Agreement? 20 DR. HANSON: I -- 21 MR. O'LAUGHLIN: Objection. Calls for a legal 22 conclusion and policy statement on behalf of the CVP and 23 SWP which Mr. Hanson is not offered as a witness. 24 MR. NOMELLINI: I'm asking for his understanding on 25 that, his view. CAPITOL REPORTERS (916) 923-5447 1172 1 C.O. CAFFREY: Do you have an answer to the question, 2 Mr. Hanson? 3 DR. HANSON: I'm certainly not qualified as a policy 4 person to offer it, but I have a personal opinion. 5 C.O. CAFFREY: Well -- 6 MR. NOMELLINI: I'll take that. 7 C.O. CAFFREY: You won't even have to do that, 8 because I'm going to sustain the objection. 9 MR. NOMELLINI: Okay. All right. With regard to the 10 installation of the head of Old River barrier, has that 11 barrier ever been installed before? 12 DR. HANSON: Yes. 13 MR. NOMELLINI: Many times; is that correct? 14 DR. HANSON: Several times. 15 MR. NOMELLINI: Let's go back as far as you can 16 remember when it was first installed. Do you recall when 17 it was first installed? 18 DR. HANSON: Early 1990s. 19 MR. NOMELLINI: All right. And do you understand the 20 1995 Water Quality Control Plan to contemplate that such a 21 barrier could be installed? 22 DR. HANSON: My understanding is that it contemplates 23 that and it recommends studies and evaluations of the 24 barrier, but it does not require its installation. 25 MR. NOMELLINI: And you consider that to be a CAPITOL REPORTERS (916) 923-5447 1173 1 contrast with the San Joaquin River Agreement? 2 DR. HANSON: The San Joaquin River Agreement requires 3 for those years in which the flows are acceptable that the 4 barrier be installed. 5 MR. NOMELLINI: Has it occurred to you that it is 6 possible that the barrier might not receive the necessary 7 permits for the installation? 8 MR. O'LAUGHLIN: Objection. Calls for speculation. 9 C.O. CAFFREY: Sustained. 10 MR. NOMELLINI: Do you know whether or not all 11 permits necessary for the installation of the head of Old 12 River barrier as contemplated in the San Joaquin River 13 Agreement have been received? 14 DR. HANSON: I know the Department of Water Resources 15 currently has a permit that allows for the installation of 16 the head of Old River barrier for a specified time period. 17 MR. NOMELLINI: Do you know what that time period is? 18 DR. HANSON: I believe it's five years. That there 19 was extensive discussion about the element of the head of 20 Old River barrier as a component of the San Joaquin River 21 Agreement and as a part of VAMP. The parties to those 22 discussions and the signatories to the agreement were the 23 same agencies that would be required to provide permitting, 24 at least from the environmental standpoint. And so I don't 25 believe that the permits have been issued, but I have no CAPITOL REPORTERS (916) 923-5447 1174 1 reason to believe that they would not be. 2 MR. NOMELLINI: And if they were issued it would be 3 for the five-year period that you're talking about? 4 DR. HANSON: No. DWR currently holds a permit to 5 allow for the installation of the barriers for a five-year 6 period. This would be for the remaining period of the VAMP 7 program. 8 MR. NOMELLINI: All right. Do you know whether or 9 not a formal Endangered Species Act consultation has been 10 obtained with regard to the installation and operation of 11 the head of Old River barrier? 12 DR. HANSON: I am not aware -- well, I'm not aware as 13 to whether a formal consultation has been achieved for the 14 barrier. 15 MR. NOMELLINI: All right. Anybody else on the 16 panel? Mr. Kjelson, you -- 17 DR. KJELSON: No, I don't know formally what the 18 status of that is. I know it's being taken under 19 consideration and that's about all I know. 20 MR. NOMELLINI: Mr. Loudermilk? 21 DR. LOUDERMILK: Yeah, there's probability a 22 distinction necessary between the temporary barrier 23 project, which does currently have permits in place, and 24 the permanent barrier, which does not to my knowledge. 25 MR. NOMELLINI: All right. Mr. Hanson, is the CAPITOL REPORTERS (916) 923-5447 1175 1 barrier that's contemplated in the San Joaquin River 2 Agreement, the one you said was required, is that the 3 permanent barrier, or the temporary barrier? 4 DR. HANSON: It actually could be either. There is 5 preference among a variety of parties, and I'm not speaking 6 for all the parties, but that that barrier be constructed 7 in such a way that it be operable so that it could be 8 opened and closed on a management basis. In the absence of 9 that, from purely a fishery standpoint, the protection and 10 the study, it could be accomplished with a temporary 11 rock-type barrier. 12 MR. NOMELLINI: So the temporary barrier would suit 13 just fine? 14 DR. HANSON: It wouldn't be as good, but it would 15 suit our services for this purpose. 16 MR. NOMELLINI: And you would agree that the permit 17 for the permanent barrier has not been -- permits for the 18 permanent barrier have not yet been obtained? 19 DR. HANSON: Correct. 20 C.O. CAFFREY: Mr. Nomellini, I'm going to take 21 advantage of your pause, how much more time do you think 22 you need? I'm only ask because I'm wondering about a 23 break. 24 MR. NOMELLINI: Well, if you want to take a break I 25 can look over my notes and maybe speed it up a little bit. CAPITOL REPORTERS (916) 923-5447 1176 1 If you want me to continue, I'll follow along. 2 C.O. CAFFREY: If you were to tell me that you would 3 be done in five or ten minutes, we would keep going. 4 MR. NOMELLINI: I can't promise that. 5 C.O. CAFFREY: All right, sir. We'll take a break 6 now and be back at 20 minutes to 3 and continue with your 7 cross-examination. 8 (Recess taken from 2:28 p.m. to 2:46 p.m.) 9 C.O. CAFFREY: Okay. Mr. Nomellini says he now 10 yields. 11 MR. NOMELLINI: My cohort requested the podium, 12 Mr. Chairman. 13 C.O. CAFFREY: I'm impressed with the congeniality. 14 MR. O'LAUGHLIN: Are these your notes? 15 MR. NOMELLINI: Yes. 16 MR. O'LAUGHLIN: Okay. 17 MR. NOMELLINI: Work this guy over a little bit. 18 MR. O'LAUGHLIN: Mr. Caffrey, I'm sorry to interrupt 19 the proceedings, again. In regards to the questioning of 20 the biologists, I've had a brief discussion with your 21 counsel in the intermission. And what we would like to do, 22 if possible, is finish up with the cross-examination of the 23 biologists in the normal course of today and hopefully next 24 Tuesday. And, then, what we would like to do is wait for 25 our redirect until Ms. Brandes comes back from vacation CAPITOL REPORTERS (916) 923-5447 1177 1 which would be early August. 2 I would tell you that we do have other witnesses 3 that we could put on next Tuesday, Wednesday, and Thursday. 4 So there would be no stopping in the proceedings, we could 5 move forward. And, actually, I think it would be helpful 6 not only to the biologists, but also to the other parties 7 involved to hear some of the hydrology direct testimony and 8 the hydraulic direct testimony, considering it's always 9 difficult in this proceeding to figure out do you put on 10 biology first and worry about the hydrology; or do you put 11 on your hydrology first and worry about the biology. 12 So we would ask that, if possible, that the 13 parties be allowed to do redirect after Ms. Brandes comes 14 back from Hawaii. 15 C.O. CAFFREY: I personally have no objection to 16 that, but I think it's fair to ask the other parties if 17 anybody has a problem with that. 18 MR. JACKSON: Mr. Kjelson. 19 C.O. CAFFREY: This is your witness here. 20 DR. KJELSON: All I can say is this a complex world. 21 I'm scheduled to be in West Virginia the first week in 22 August myself. 23 C.O. CAFFREY: I thought he was going to tell us he 24 had to meet Ms. Brandes in Hawaii. 25 MEMBER FORSTER: Don't put that on the record, Mary. CAPITOL REPORTERS (916) 923-5447 1178 1 Strike that. 2 C.O. CAFFREY: We never say "strike that." We never 3 say anything on the record that we're ashamed of. 4 MR. O'LAUGHLIN: We will work with the federal 5 agencies in figuring out a schedule and come back, but we 6 would probably prefer to do redirect later. And the way 7 this is going, considering that Mr. Steiner's testimony 8 and Mr. Ploss's testimony I thought was going to take 9 longer than the biology testimony, I'm pretty sure that 10 we'll probably finish all through the next week and into 11 early August. 12 C.O. CAFFREY: Frankly, I never expected the Phase II 13 portion, even with it's confinement and its limitations, to 14 go for a short period of time. So I have no problem with 15 your request, Mr. O'Laughlin. And having heard or seen no 16 objection to it, we'll finish up with the cross-examination 17 and then we'll bring this panel back at a later appropriate 18 date when Ms. Brandes is available. 19 Do you want to continue, then, Mr. Nomellini? 20 MR. NOMELLINI: Yes, Mr. Chairman. Thank you. 21 Mr. Hanson, one of the important features of the 22 San Joaquin River Agreement is the testing of the various 23 alternatives which has been characterized as the 24 Hanson/Herbold variable program, I guess; is that correct? 25 DR. HANSON: It started out as the Herbold/Hanson -- CAPITOL REPORTERS (916) 923-5447 1179 1 MR. NOMELLIN: All right. 2 DR. HANSON: -- but I want to be clear on this. 3 MR. NOMELLINI: But you're here and he isn't. 4 DR. HANSON: That's true, so it could be the 5 Hanson/Herbold today. 6 MR. NOMELLINI: But that's an important feature, is 7 it not? 8 DR. HANSON: It is. 9 MR. NOMELLINI: Okay. Now, is it your testimony that 10 that testing would not have taken place under the 1995 11 Water Quality Control Plan? 12 DR. HANSON: The likelihood, as Ms. Brandes pointed 13 out, is that the U.S. Fish and Wildlife Service has been 14 conducting salmon smolt survival studies, including studies 15 in the lower San Joaquin River, that those studies would 16 very likely continue in the future. I think the difference 17 is that they may not continue under the same level of 18 control and management of the key parameters, including 19 Vernalis flows and the state and federal water project 20 exports as have been built into the experimental design 21 included in VAMP. So this goes beyond the tests that would 22 likely occur in the absence of this agreement. 23 MR. NOMELLINI: All right. Now, that we have the 24 experience if the agreement were rejected it would be easy 25 for us to pick up that testing format for the 1995 Water CAPITOL REPORTERS (916) 923-5447 1180 1 Quality Control Plan, would it not? 2 DR. HANSON: I differ. It has not been easy to get 3 to this stage. It requires a tremendous coordination among 4 a variety of parties both biological as well as operational 5 and a variety of other logistics. I think the agreement 6 provides the necessary framework for that coordination to 7 occur and for the parties to work together with a single 8 focus. I think that would be difficult to reachieve in a 9 different format. 10 MR. NOMELLINI: Any other member of the panel differ 11 with that assessment? Loudermilk? We'll start with 12 Kjelson. 13 DR. KJELSON: I probably would emphasize what 14 Dr. Hanson just said. Those of us who have attempted to do 15 biological investigations in the Delta continually struggle 16 with the question of controlling key factors so that we can 17 achieve a good experimental design and condition that we 18 can interpret the data with some ease and that's 19 continually a problem. 20 MR. NOMELLINI: Before you hand the mic over, you 21 believe that that could not be done under the 1995 Water 22 Quality Control Plan? 23 DR. KJELSON: Well, there's a likelihood of it being 24 done. But as Dr. Hanson just said, if you have a strong 25 agreement with the -- between all the necessary parties, CAPITOL REPORTERS (916) 923-5447 1181 1 it's more likely that it would be done. 2 MR. NOMELLINI: And does money play a part in that? 3 DR. KJELSON: Money seems to play a part in almost 4 everything. 5 MR. NOMELLINI: So the distinction -- or one of the 6 distinctions between the San Joaquin River Agreement and 7 the 1995 Water Quality Control Plan with regard to the 8 conduct of the study, would be the funding of such studies, 9 is that what you're saying? 10 DR. KJELSON: I don't care to comment on the whole 11 funding and the complicated policy issues that surround 12 that. 13 MR. NOMELLINI: All right. Mr. Loudermilk? 14 DR. LOUDERMILK: Yeah, I'll just take the comments a 15 little bit further than Chuck and Marty. Fish and Game has 16 been directly involved in the Delta smolt survival studies 17 since inception with some early activities in the mid '80s. 18 And we've been directly involved in smolt survival work in 19 the tributaries, which involves scheduling flows on each of 20 the tributaries and the volumes that are made available 21 from one year to the next and integrating stream flow 22 schedules on each of the tributaries such that that flow 23 stacks on itself, if you will, and provides a relatively 24 stable test condition, test flow at Vernalis. 25 And working through the CalFed Water Operations CAPITOL REPORTERS (916) 923-5447 1182 1 Group attempting to obtain water export curtailments for a 2 long enough duration such that our test fish can move 3 through the test reaches such as we can get a valuation of 4 survival, relative flows and temperatures. In the process 5 of doing all of that one year to the next it necessarily 6 involves a broader array of considerations including state 7 and federal water contract needs, storage and use of water 8 out of the San Luis, makeup pumping, listed species 9 concerns and biological opinions, et cetera, et cetera, et 10 cetera. 11 But up to this point, there's been sort of a de 12 facto process for coordinating and establishing a firm set 13 of test conditions, flow and export test conditions on the 14 San Joaquin side of the system. And what this agreement 15 and study design offers is a way of not only completing the 16 tributary study programs in a manner intended in the 17 existing agreements upstream of the Delta, but because of 18 the broad consensus that come together in this agreement 19 and will in the final agreement, there is very strong voice 20 and very strong desire to get more definitive information 21 for long-term water and fishery management decisions. 22 And I'm not sure that all of that is going to 23 happen in the other alternatives in the plan. So I would 24 echo what Chuck had to stay, I think it does offer quite a 25 bit more. CAPITOL REPORTERS (916) 923-5447 1183 1 MR. NOMELLINI: So by bringing more people together 2 in a single effort it's an advantage to get it done 3 although you would admit that you could get it done in the 4 other forum as well? 5 DR. LOUDERMILK: You may. The other real advantage 6 to the river agreement is the adaptive management approach 7 one year to the next. And, particularly, as the years dry 8 up it's a real -- real challenge. And having the amalgam 9 that the river agreement would provide, brings us together 10 and allows us to state our stated interests. So I think 11 it's very positive. 12 MR. NOMELLINI: Let's stay on that a minute. If 13 rather than debate the equivalency with the Water Quality 14 Control Plan we were to follow the admonition of the Board 15 and seek change in the Water Quality Control Plan to 16 conform to the parameters of the VAMP, would your testimony 17 be the same with regard to the ability to get the reduced 18 exports during the test period? 19 DR. LOUDERMILK: I'm sorry, one more time. 20 MR. NOMELLINI: In other words, if we approach this 21 problem, the VAMP -- the VAMP portion of the San Joaquin 22 River Agreement as a change in the Water Quality Control 23 Plan so that those export limitations and the provision of 24 water would be provided in such a plan, would your 25 testimony be different as to the advantage of the agreement CAPITOL REPORTERS (916) 923-5447 1184 1 versus the plan? 2 MR. CAMPBELL: Objection. Calls for speculation. 3 C.O. CAFFREY: I'm sorry, I didn't hear the question. 4 We were having a consultation up here, which is -- 5 MR. NOMELLINI: Well, I was getting away with murder. 6 C.O. CAFFREY: -- something we shouldn't be doing 7 when you all are speaking. And I apologize for that. And 8 do you want to repeat the question? 9 MR. NOMELLINI: Yeah, I'll try it again. 10 C.O. CAFFREY: And that is without prejudice, because 11 I don't know what the question was, excuse me. 12 MR. NOMELLINI: I know and I don't remember it 13 exactly either. 14 C.O. CAFFREY: And I apologize to you, Mr. Campbell. 15 MR. NOMELLINI: Any reason that you can put forth as 16 to why we couldn't incorporate the export limitations 17 necessary to conduct the VAMP test into a modified, or 18 amended Water Quality Control Plan? 19 DR. LOUDERMILK: It's taken us a long time to get a 20 plan to have -- 21 MR. CAMPBELL: I'm going to object. 22 DR. LOUDERMILK: I don't really know. 23 MR. CAMPBELL: I'm going to object to that question 24 on the grounds that this is calling for a legal conclusion. 25 I don't see any biological testimony here. CAPITOL REPORTERS (916) 923-5447 1185 1 C.O. CAFFREY: And as a matter of fact, he did answer 2 he didn't know what might one interpret, because maybe he 3 doesn't have that expertise. So, objection sustained. 4 MR. NOMELLINI: Mr. Hanson, is it important to the 5 San Joaquin salmon smolt survival that the water for the 6 spring Vernalis pulse flow come from a particular source? 7 DR. HANSON: For the VAMP program we have not 8 specified any specific upstream source where the water 9 would be contributed. And we have had discussions with 10 Mr. Loudermilk and others about the coordination between 11 upstream operations and downstream operations for VAMP, but 12 I don't believe that the source of water for fish released 13 at Mossdale is a critical element in the overall 14 experimental design. 15 MR. NOMELLINI: So if a portion of the water required 16 to provide the spring Vernalis pulse flow was released from 17 Friant on the San Joaquin River, there would be no adverse 18 impact to the San Joaquin River Agreement, VAMP portion of 19 the agreement? 20 DR. HANSON: I can't say that explicitly. There 21 would need to be additional consideration of whether there 22 might be temperature affects, for example, because of the 23 transit from one location to the point of release at 24 Mossdale or Dos Reis. 25 MR. NOMELLINI: And would your answer be the same CAPITOL REPORTERS (916) 923-5447 1186 1 with regard to the provision of water for the spring 2 Vernalis pulse flow from the Delta/Mendota Canal? 3 DR. HANSON: It would be. 4 MR. NOMELLINI: Has anyone on the panel analyzed the 5 impact of the San Joaquin River Agreement on fish in the 6 various tributaries? Anybody? Bill? 7 DR. LOUDERMILK: Yes. Yes, generally. 8 MR. NOMELLINI: Is there an impact on trout, or steel 9 head as a result of the San Joaquin River Agreement in any 10 of the tributaries that are involved in the agreement? 11 DR. LOUDERMILK: I can only address the three 12 northern tributaries, the Stanislaus, Tuolumne, and Merced 13 in this. My assessment has involved reviewing the existing 14 in-stream flow allocations in various agreements and -- 15 that exist today. And my assessment is that recognizing 16 that VAMP flows, for purposes of the study of survival 17 through the South Delta downstream of Vernalis, will be 18 added on top of, by and large, added on top of agreement 19 flows. And recognizing that there's a deficit of in-stream 20 flows during that 31-day outmigrate period in the 21 tributaries, that it would be essentially a benefit for 22 anadromous fish in those streams. 23 MR. NOMELLINI: Is it your testimony that there would 24 be no reduction in summertime flow in any of those 25 tributaries that you named, Stanislaus, Tuolumne, and CAPITOL REPORTERS (916) 923-5447 1187 1 Merced? 2 DR. LOUDERMILK: I don't know that. 3 MR. NOMELLINI: How do you know it's a benefit if 4 there's a reduction in summertime flow? 5 DR. LOUDERMILK: The benefit that I stated was 6 specific to the 31-day pulse-flow period and the recognized 7 need for improved outmigrant conditions during that window 8 of time. 9 MR. NOMELLINI: All right. Focusing on summertime 10 flow, and in particular trout, steel head, is it your 11 testimony that you have not analyzed whether or not there 12 is an adverse impact in the San Joaquin River Agreement on 13 those species in the three tributaries that you named, the 14 Stanislaus, the Tuolumne, and Merced? 15 DR. LOUDERMILK: We anticipate that analysis of that 16 would come through the environmental document process. 17 MR. NOMELLINI: But you're not aware of it being done 18 yet? 19 DR. LOUDERMILK: We've not conducted that. 20 MR. NOMELLINI: All right. Anybody else have any 21 analysis of the summertime flow? No? 22 MS. BRANDES: No. 23 DR. KJELSON: No. 24 MR. NOMELLINI: All right. Now, with regard to 25 purchases of water from the various tributary areas along CAPITOL REPORTERS (916) 923-5447 1188 1 the San Joaquin, Mr. Hanson, are you aware that the Bureau 2 of Reclamation has purchased water along those tributaries 3 in the past? 4 DR. HANSON: I'm generally aware that there are a 5 variety of purchase agreements within the basin. 6 MR. NOMELLINI: And in the last couple of years water 7 was purchased; is that correct? 8 DR. HANSON: Generally, I understand that. 9 MR. NOMELLINI: Do you know what the quantities 10 were -- 11 DR. HANSON: No. 12 MR. NOMELLINI: -- roughly? Anybody else know 13 generally? 14 MR. BIRMINGHAM: May the record reflect that the 15 panel answered negatively. 16 MR. NOMELLINI: That's agreeable to me. 17 C.O. CAFFREY: And that was the answer that wasn't 18 audible. Let the record reflect that. 19 MR. NOMELLINI: Mr. Hanson, in your determination of 20 equivalency of the San Joaquin River Agreement in the 1995 21 Water Quality Control Plan, did you make any assumption as 22 to the permissible use of joint points of diversion by the 23 two projects? 24 DR. HANSON: We did not. And I say, "we" because 25 that was done jointly by Bruce and I. CAPITOL REPORTERS (916) 923-5447 1189 1 MR. NOMELLINI: Okay. Mr. Chairman, that's all I 2 have. Thank you very much. 3 C.O. CAFFREY: Thank you, Mr. Nomellini. 4 Ms. Koehler, Cynthia Koehler here? We've added you to the 5 list along with Mr. Gallery and Mr. Birmingham. Good 6 afternoon. 7 ---oOo--- 8 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 9 BY SAVE THE SAN FRANCISCO BAY ASSOCIATION 10 BY CYNTHIA KOEHLER 11 MS. KOEHLER: Good afternoon. I think this is my 12 first appearance before the Board in this matter. I'm 13 Cynthia Koehler. I'm legal counsel for Save the San 14 Francisco Bay Association. Hi everybody. The great thing 15 about going near the end of the day is everybody has asked 16 the questions, so I don't really have that much. 17 So, Marty, why don't I really start with you. I 18 want to talk a little bit about existing flow. Am I 19 correct that the target flows -- and I'm here on page seven 20 of the San Joaquin River Agreement looking at Section 5.5, 21 the target flows that will be released under VAMP each year 22 will depend on the existing flows that is used in Section 23 5.5 for that year? 24 DR. KJELSON: I believe that's true. I was not 25 closely involved in the studying of the flows or analyzing CAPITOL REPORTERS (916) 923-5447 1190 1 that issue. 2 MS. KOEHLER: Right, I understand I'm not going to 3 ask you about the setting of flows then. You had to 4 wait -- well, let me go on. Existing flow as it is defined 5 here and as you have enlighten on it in your analysis of 6 equivalency, is the flow that would have existed in the San 7 Joaquin River absent VAMP during the relevant time period. 8 Is that your understanding? 9 DR. KJELSON: Well, my evaluation simply utilized the 10 target flows under Appendix A of the agreement. And I did 11 not get into the existing flow issue, or the target flows 12 stipulated on page seven of the agreement itself. 13 MS. KOEHLER: Okay. But you do -- the reason that 14 I'm asking about this is because your testimony today goes 15 to the equivalency issue and that depends on these target 16 flows being implemented as set forth in this agreement? 17 DR. KJELSON: That's correct. 18 MS. KOEHLER: Okay. Does your competence in the 19 equivalency of the agreement hinge on the appropriate 20 assessment of the existing flow in each year since the 21 target flows are connected to the existing flows? 22 MR. BIRMINGHAM: Objection. Compound. 23 MS. KOEHLER: I don't believe it's compound, but I'll 24 try again. 25 C.O. CAFFREY: Thank you. CAPITOL REPORTERS (916) 923-5447 1191 1 MS. KOEHLER: Does your competence in the equivalency 2 of the agreement to the Water Quality Control Plan hinge on 3 the appropriate assessment of existing flows in each year? 4 DR. KJELSON: My equivalency conclusions assume that 5 the flows in Attachment A, the target flows would be there. 6 MS. KOEHLER: Okay. And I understand that -- I 7 understand that you're not -- you weren't involved in the 8 creation of these existing flows. But it is your 9 testimony, then, that you're assuming that the appropriate 10 target flows are connected to the existing flows in this 11 document, have I got that right? 12 DR. KJELSON: The only reason I'm hesitating is that 13 I'm not too familiar with the whole existing flow issue and 14 how it relates to the target flows. 15 MS. KOEHLER: Uh-huh. 16 DR. KJELSON: So I'm not able to answer your 17 question. 18 MS. KOEHLER: But you do understand that the target 19 flows -- that the target flows are only provided if the 20 existing flows are determined to be those that are -- that 21 are associated with the target flows? 22 DR. KJELSON: I don't mean to make it more complex, 23 Cynthia. 24 MS. KOEHLER: Okay. 25 DR. KJELSON: I'm not real close to that. CAPITOL REPORTERS (916) 923-5447 1192 1 MS. KOEHLER: Well, here's my problem: If there is 2 an incorrect assessment of the existing flow in any year 3 that would necessarily impact the provision of the target 4 flows; isn't that correct? 5 DR. KJELSON: If what you're saying is: There's a 6 relationship between existing flows and the target flows, I 7 would assume that would be correct. 8 MS. KOEHLER: Okay. So -- and, again, appreciating 9 that you were not involved in the establishment of the 10 flows, getting the existing flows correct in any existing 11 year is critical to your analysis that these -- that this 12 plan is equivalent to the protection provided in the Water 13 Quality Control Plan? 14 DR. KJELSON: Assuming everything that you said is 15 correct, yes, that makes sense. 16 MS. KOEHLER: Okay. And are you aware -- and this 17 question is for the panel and I'm happy to take the answer 18 in turn. Is there any other place or proceeding that you 19 are aware of where target flows are dependent upon existing 20 flows as that is defined in this agreement? 21 DR. LOUDERMILK: No. 22 MS. KOEHLER: I'd like to hear from everybody on 23 this. 24 DR. HANSON: No. 25 DR. MORHARDT: No. CAPITOL REPORTERS (916) 923-5447 1193 1 MS. BRANDES: I think that's outside my area of 2 expertise. 3 MS. KOEHLER: Marty, can you or anybody on the panel 4 provide us with some explanation why that would be, why 5 would -- assuming this is an appropriate way of 6 establishing target flows for -- to meet water quality 7 standards, why would this particular formula not have been 8 used in any other form dealing with these issues? 9 MR. O'LAUGHLIN: Objection. 10 MR. BIRMINGHAM: Objection. 11 MR. O'LAUGHLIN: Calls for speculation. And outside 12 the scope of the witnesses' testimony. 13 MS. KOEHLER: I disagree. These are biologists who 14 deal frequently with water quality standards and their 15 impacts on fisheries. And I think if we're going to be 16 asked to adopt a very different formula for establishing 17 target flows for fish protection, and we're relying on 18 their testimony that these -- this plan will provide an 19 equivalent level of protection, I think we should hear from 20 them as to why this very unique approach to establishing 21 target flows has not been employed. And I think that's 22 within their area of expertise. 23 C.O. CAFFREY: Ms. Koehler, was your question to the 24 entire panel? 25 MS. KOEHLER: Yes, it was. CAPITOL REPORTERS (916) 923-5447 1194 1 C.O. CAFFREY: Excuse me a moment. Mr. Schulz? 2 MR. SCHULZ: But her question -- the question was: 3 Why wasn't this approach used in other agreements? That 4 was the specific question that she asked. That's why it's 5 speculative. 6 MS. KOEHLER: I asked for their opinion as to why 7 this kind of approach -- they've all testified that they're 8 all unaware of any other proceedings in which this type of 9 approach has been used. And given that they are here to 10 testify as to the equivalency of this agreement, I think 11 it's important to hear from them as to their opinions, 12 their expert opinions as to why an approach of this kind 13 hasn't been utilized in other places. If they have no 14 opinion on that subject, then, we'll know that. 15 C.O. CAFFREY: Just a moment off the record here. 16 (Off the record from 3:14 p.m. to 3:16 p.m.) 17 C.O. CAFFREY: Ms. Koehler, I'm inclined to overrule 18 the objection because I think you're looking for -- I don't 19 want to put the question in your mouth -- but if you could 20 rephrase it. I suspect that you're trying to find out more 21 or less what the standard operation procedure is among 22 scientists. Why don't you try the question, again? 23 MS. KOEHLER: Okay. Thank you, Mr. Chairman. The 24 question for the panel is: It's everybody's view that this 25 is an unusual approach for establishing target flows for CAPITOL REPORTERS (916) 923-5447 1195 1 fisheries protection. You're unaware of it having been 2 tried elsewhere. Can you -- putting it in the affirmative, 3 can you tell us what the usual approach is for establishing 4 flow standards for fish protection? 5 MR. BIRMINGHAM: Objections. Assumes a fact not in 6 evidence. There's been absolutely no testimony that 7 there's an usual way of establishing flows for these 8 objectives. 9 C.O. CAFFREY: I'm going to allow the question. 10 MS. KOEHLER: Thank you. 11 C.O. CAFFREY: Your objection is on the record, 12 Mr. Birmingham. Anybody have an answer? 13 DR. LOUDERMILK: Well, I'll make a stab at the 14 "usual" part. 15 MS. KOEHLER: Great. 16 DR. LOUDERMILK: To my knowledge based on the 17 experiences I've had in the San Joaquin basin and elsewhere 18 there's essentially three ways that in-stream flows, that 19 flow specifically, protections are provided for fish in 20 streams. One being, a process very similar to one we're 21 here on, through the State Board process, water right 22 process. 23 Another being the Federal Energy Regulatory Process. And 24 the third is, I guess, a category of civil agreements. 25 MS. KOEHLER: Okay. Moving on, Dr. Hanson, perhaps, CAPITOL REPORTERS (916) 923-5447 1196 1 you can help me with some of these. Were you -- existing 2 flow and target flows figures in Section 5.5, is that part 3 of the Herbold/Hanson experiment that you put together? 4 Are you the right person to ask about this? 5 DR. HANSON: Actually, Bruce is the better of the 6 two. Bruce was responsible for working out the flow 7 component as well as the export component of the 8 experimental design. 9 MS. KOEHLER: Okay. Is it appropriate to ask you a 10 couple of questions about this though? 11 DR. HANSON: Certainly. 12 MS. KOEHLER: Would you say there is much discretion 13 in how the existing flow component would be determined in 14 each year? 15 DR. HANSON: How -- could you expand a little bit on 16 the "existing flow component"? 17 MS. KOEHLER: Well, in each year existing flow, it is 18 listed here in Section 5.5: The question is -- my 19 question -- let me start at the beginning. 20 Can you explain for us how it is -- how under this 21 agreement it is anticipated that existing flow will be 22 determined in each year that the agreement would be in 23 place? 24 DR. HANSON: I am not the appropriate person to 25 answer that. CAPITOL REPORTERS (916) 923-5447 1197 1 MS. KOEHLER: Okay. All right. Let me -- let me ask 2 it this way: Are you confident that the agreement defines 3 existing flow such that in any year of the experiment the 4 correct existing flow will, in fact, be employed? 5 DR. HANSON: Speaking as a biologist that's been our 6 assumption. 7 MS. KOEHLER: That's been your assumption. 8 DR. HANSON: The hydrologists and the other experts 9 involved, who know much more about it than we, would work 10 with us in developing what those appropriate flows should 11 be. 12 MS. KOEHLER: So you do not have an opinion as a 13 biologist as to -- you're simply assuming that these flows 14 will be correctly employed. And you don't have an opinion 15 that -- this is the question: 16 You don't have an opinion, then, as to whether or 17 not there is opportunity for the correct flows -- well, let 18 me move on to another subject that hopefully will be more 19 along the area of your expertise. 20 Marty, you talked earlier about the fact that the 21 agreement intends to achieve the doubling standards that -- 22 the agreement along with other things. And you talked 23 early about the May 1995 working paper on the AFRP that you 24 prepared in your capacity as the head of the AFRP Program 25 for the Fish and Wildlife Service. CAPITOL REPORTERS (916) 923-5447 1198 1 Is it correct that that working paper was prepared 2 in connection with the implementation of the anadromous 3 fish standard in the CVPIA, the doubling standard in the 4 CVPIA? 5 DR. KJELSON: Yes, the working paper was done under 6 the Anadromous Fish Restoration Program. 7 MS. KOEHLER: Okay. And just to clarify, is it your 8 testimony that the May 1995 working paper established 9 minimum flows that your program believes are necessary to 10 achieve doubling of anadromous fish in the San Joaquin 11 River from a strictly biological perspective? 12 DR. KJELSON: The '95 working paper was a 13 professional opinion of a wide variety of anadromous fish 14 biologists that put forth flows in a variety of streams as 15 well as other restoration actions that they felt would be 16 necessary to ensure doubling of anadromous fish in the 17 Central Valley. 18 MS. KOEHLER: And the paper did include minimum flows 19 on the San Joaquin River that you believe are necessary as 20 part of that larger package to achieve the doubling? 21 DR. KJELSON: Yes, it did. Although like I said to 22 someone this morning, it's been some time since I looked at 23 the working paper. And I would ask to look at it to be 24 sure of my answer as to what flows are on what streams. 25 MS. KOEHLER: Okay. And you anticipated my next CAPITOL REPORTERS (916) 923-5447 1199 1 question which is: That you -- that you have not had a 2 chance to compare directly the recommendation -- the 3 recommended flows in that paper with the VAMP flows, 4 correct? 5 DR. KJELSON: That's correct. 6 MS. KOEHLER: Okay. Question for the Board: Is it 7 possible that this comparison could be provided and be put 8 into the record as part of this proceeding? 9 MR. O'LAUGHLIN: I'm going to object. He wasn't 10 retained to do that, that wasn't the scope of work that he 11 was asked to do by the U.S. Fish and Wildlife Service. And 12 we're not going to provide that analysis. If she wants the 13 analysis done by the State Water Resources Control Board, 14 that's another question. 15 C.O. CAFFREY: Mr. Howard? 16 MR. HOWARD: That analysis is in the Draft EIR. 17 C.O. CAFFREY: It's in the Draft EIR, all right. 18 MR. HOWARD: Which is Exhibit 1 of State Water 19 Resources Control Board. 20 C.O. CAFFREY: Thank you, Mr. Howard. I believe that 21 takes care of that little problem. 22 MS. KOEHLER: It does. Thank you. Marty, you also 23 testified that there were also other actions in addition to 24 the VAMP flows that would be necessary to achieve the 25 doubling standards. Can you give us some sense of what CAPITOL REPORTERS (916) 923-5447 1200 1 those other actions would be? 2 DR. KJELSON: Well, the working paper covered a whole 3 range of factors that we, the biologists, felt were 4 important to the production of anadromous fish. And it 5 ranged all the way from temperature conditions to riparian 6 habitat, gravel issues in the streams, export levels, just 7 the whole array of factors that most biologists feel are 8 important to anadromous fish production. 9 MS. KOEHLER: Okay. If we assume just for the sake 10 of argument that all of the other nonflow actions 11 identified in your paper are implemented, is it your view 12 that VAMP in combination with all of those other actions 13 are likely to achieve the doubling goal on the San Joaquin 14 River? 15 DR. KJELSON: I really don't know the answer to that 16 question. That is part of our continued evaluation of all 17 the restoration actions as they are implemented. As I have 18 stated, at the time we developed the working paper it was 19 the opinion of the biologists that both flow and nonflow 20 actions, if implemented as stated, would -- would achieve 21 the doubling goal. 22 MS. KOEHLER: Okay. And I don't want to belabor the 23 point that you have not had the chance to look back at the 24 flows in that paper and compare them with the flows in the 25 VAMP. But what I'm trying to get at here is if we go with CAPITOL REPORTERS (916) 923-5447 1201 1 your recollection that the flows in VAMP are somewhat less 2 than the flows recommended in the paper, and we assume the 3 other actions that are recommended are implemented, I'm 4 trying to get a sense of what your best professional 5 judgment is about the likelihood of achieving doubling 6 standards as between VAMP and what was recommended in your 7 earlier paper. 8 DR. KJELSON: My general impression is that those 9 flows in our working paper were higher than VAMP. And so I 10 would be hesitant to conclude that VAMP alone would be 11 sufficient for doubling. 12 MS. KOEHLER: Okay. Just to clarify, the 13 hypothetical that I'm trying to give to you is that in no 14 case are we talking about VAMP alone, or the flows alone in 15 your 1995 working paper. 16 The question is: Whether your judgment, in 17 combination with whatever all these other actions you 18 described briefly for us would be sufficient and given that 19 you have reached a different conclusion about the flows in 20 your 1995 paper? 21 DR. KJELSON: Well, I don't know. There are some 22 things in VAMP, for example, the head of Old River barrier 23 that provide some, I believe, very strong benefits for 24 smolt survival. Combined with the flows it may -- may 25 achieve a doubling during that short period of time. But CAPITOL REPORTERS (916) 923-5447 1202 1 that remains to be seen, based upon what VAMP is all about 2 to evaluate that. 3 MS. KOEHLER: Okay. 4 DR. KJELSON: So I'm a little hesitant to draw a 5 guaranteed conclusion. 6 MS. KOEHLER: Right. And I hope it's clear that I'm 7 not asking you for that type of guarantee. Moving on to 8 the subject of the agreement itself, do you understand that 9 the agreement could terminate in any year if any party 10 objects to the operations plan? 11 DR. KJELSON: Yes. I understand that there are 12 portions of the agreement that allow for that. 13 MS. KOEHLER: Okay. And if the VAMP experiment is 14 terminated, the U.S. Bureau of Reclamation and the 15 Department of Water Resources would, then, under the 16 agreement step in to meet the standards. If this occurs is 17 it your view that the water quality standards at Vernalis 18 or their equivalent would continue to be met? 19 DR. KJELSON: Repeat the last part -- 20 MS. KOEHLER: If the agreement is terminated -- 21 DR. KJELSON: Right. 22 MS. KOEHLER: Is it your view that the water -- under 23 the agreement -- under the scenario established in the 24 agreement, is it your view that the water quality standards 25 or their equivalent would continue to be met? CAPITOL REPORTERS (916) 923-5447 1203 1 DR. KJELSON: I haven't studied the agreement in 2 that -- in that light, but I assume since the State Board 3 has regulations under the plan that they would assure that 4 would occur. 5 MS. KOEHLER: What I'm getting at since your 6 testimony here today is that the agreement would provide an 7 equivalent level of protection to the water quality plan -- 8 DR. KJELSON: Okay. 9 MS. KOEHLER: I mean if your testimony is that you 10 haven't had a chance to look at the agreement as a whole, 11 that's fine. But -- let me ask it differently: 12 It, then, your testimony that the agreement is 13 equivalent to the water quality plan only insofar as the 14 VAMP experiment is concerned and you have not really 15 studied the agreement's affect -- 16 DR. KJELSON: Yes. 17 MS. KOEHLER: -- the agreement's equivalency with 18 regard to all of the other provisions? 19 DR. KJELSON: Yes. And I stated that earlier in my 20 testimony to another question that was very similar. 21 MS. KOEHLER: I'm sorry. 22 DR. KJELSON: That I restricted my equivalency 23 analysis purely to the VAMP period under Attachment A. 24 MS. KOEHLER: Okay. Does the ease with which the 25 agreement can be terminated affect your confidence about CAPITOL REPORTERS (916) 923-5447 1204 1 whether the agreement would provide an equivalent level of 2 protection, then? 3 MR. O'LAUGHLIN: Objection -- 4 DR. KJELSON: I just stated if the agreement falls 5 apart, we're assuming that the '95 Water Quality Control 6 Plan would be initiated immediately. And I can't 7 recollect, but there may be some wording to that effect in 8 the agreement itself. 9 MS. KOEHLER: Okay. I want to get back for a moment 10 to the non-VAMP measures that you testified to a moment 11 ago. Is it your view as a biologist that the other 12 measures that you were just referring to would include 13 habitat restoration, removal of fish barriers, and other 14 actions requiring financial investments? 15 DR. KJELSON: I didn't understand the question. 16 MS. KOEHLER: Okay. The other -- I mean you said 17 several times that VAMP alone wouldn't achieve the fish 18 doubling goal. That other actions -- 19 DR. KJELSON: It may not achieve the doubling goal. 20 MS. KOEHLER: It may not achieve your doubling goal. 21 And that other actions would be required in addition to the 22 flows? 23 DR. KJELSON: Yes, for the narrative standard. 24 MS. KOEHLER: Right. And those other actions, I 25 think you said here habitat restoration of various types? CAPITOL REPORTERS (916) 923-5447 1205 1 DR. KJELSON: Sure. 2 MS. KOEHLER: And my question is those -- those other 3 actions, those nonflow actions all involve financial 4 investments of one type or another; is that correct? 5 DR. KJELSON: Well, certainly, and that's part of the 6 CVPIA Restoration Fund and so forth. 7 MS. KOEHLER: Right. And you -- you -- is it -- is 8 it fair to say that you have substantial responsible for 9 implementing certain aspects of the CVPIA? 10 DR. KJELSON: Certainly. 11 MS. KOEHLER: Okay. Is it your view as a biologist 12 responsible for implementing certain parts of the CVPIA 13 that diversion of funds from habitat measures that could -- 14 that are designed to achieve the doubling goal would 15 inhibit the attainment of this standard? 16 MR. O'LAUGHLIN: Objection. This question has been 17 asked and answered. And Mr. Kjelson said earlier that he 18 is not going to comment on funding issues, because that was 19 outside the scope of his expertise. 20 C.O. CAFFREY: That's correct. Sustained. He 21 already testified to a similar question that that was 22 outside his area of expertise. 23 MS. KOEHLER: Well, perhaps, I can rephrase the 24 question, Mr. Chairman, because Dr. Kjelson just testified 25 that he has the responsibility for implementing this part CAPITOL REPORTERS (916) 923-5447 1206 1 of the CVPIA. So it's hard -- 2 C.O. CAFFREY: You can try -- 3 MS. KOEHLER: It's not entirely clear. I don't 4 understand how this could be outside the area of his 5 expertise. 6 C.O. CAFFREY: You can try another question, maybe 7 something more succinct. But, you know, there is a 8 difference between an accountant and a corporate financial 9 manager. So they all cover the spectrum of fiscal officer 10 in one way or another, but they're two entirely different 11 jobs. 12 DR. KJELSON: Thank you. And that would be the 13 answer that I would give. 14 C.O. CAFFREY: I'm sorry, I didn't mean to testify. 15 DR. KJELSON: Thank you for your assistance. 16 C.O. CAFFREY: Sorry about that. 17 DR. KJELSON: It's exactly that way, we have a budget 18 for the CVPIA -- 19 MS. KOEHLER: I'm not asking a budget question. Let 20 me put it differently. As a federal official responsible, 21 in part, for the implementation of the CVPIA, is it your -- 22 do you have a view as to whether the diversion of funds 23 from the CVPIA Restoration Fund would have an adverse 24 affect on the implementation of that program? 25 MR. O'LAUGHLIN: That is the same question. She can CAPITOL REPORTERS (916) 923-5447 1207 1 try as much as she wants, he's not going to answer 2 questions regarding funding, funding issues, and policy 3 issues. I will instruct him not to -- 4 MS. KOEHLER: It is a matter of implement -- 5 MR. O'LAUGHLIN: No, it's not. 6 C.O. CAFFREY: I have to agree. I'm sustaining the 7 objection, because I think you're asking a policy question 8 in the context of it being fiscal, but -- 9 MS. KOEHLER: I see. 10 C.O. CAFFREY: -- I think he agreed to my analogy 11 that he's at the accountant end of the spectrum and not the 12 policy making end of it. And I don't want to put words in 13 your mouth, is that correct, Mr. Kjelson? 14 DR. KJELSON: That's correct. 15 C.O. CAFFREY: All right. 16 MS. KOEHLER: Let me reserve my objection for the 17 record, I want to make sure I'm understanding here. The 18 witness is being directed not to answer a question about 19 his own responsibilities to implement the CVPIA; is that 20 correct, his responsibilities with regard to expenditures 21 of the CVPIA Restoration Fund? 22 MR. O'LAUGHLIN: No. No. An objection was made and 23 the objection was sustained by the Chair. 24 MS. KOEHLER: Did I mischaracterize -- 25 C.O. CAFFREY: I just sustained his objection to the CAPITOL REPORTERS (916) 923-5447 1208 1 nature of the question. I didn't give any instruction to 2 anybody to answer or not answer the question. You can try 3 another question. 4 MS. KOEHLER: I think we'll leave it there. Thank 5 you. 6 C.O. CAFFREY: Thank you. Mr. Gallery. 7 MR. GALLERY: Am I second to the last witness, 8 Mr. Chairman? 9 MR. O'LAUGHLIN: Witness, I hope not. 10 C.O. CAFFREY: It's been a long day. 11 MR. GALLERY: Is Mr. Porgans after me? 12 C.O. CAFFREY: No, actually, there's two more 13 cross-examiners after you, Mr. Gallery, Mr. Porgans and 14 Mr. Birmingham. 15 MR. GALLERY: I only have a few minutes. 16 C.O. CAFFREY: That is not to say that we're going to 17 get through it all today. We are shooting to wind up 18 today, as I have announced in the past, around 4:00 if at 19 all possible every day that we're scheduled. 20 ---oOo--- 21 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 22 BY TUOLUMNE UTILITIES DISTRICT 23 BY DANIEL F. GALLERY 24 MR. GALLERY: All right. Ladies and gentlemen, I 25 represent Tuolumne Utilities District, which is on the CAPITOL REPORTERS (916) 923-5447 1209 1 Stanislaus River. And we're right next to the New Melones 2 Reservoir. And our interest is primarily in the use of New 3 Melones Reservoir to meet the flow standards at Vernalis. 4 Preliminarily, Mr. Kjelson, I'm familiar with the 5 May 1995 AFRP booklet and you were talking about a working 6 paper. Is that a different -- is that a different 7 document? 8 DR. KJELSON: Well, it could be, I'm not sure which 9 booklet you're talking about. We've had several drafts of 10 our release 1997 May -- actually, it was released June 1st 11 of our restoration plan, you may have seen a previous draft 12 of that. But what has been talked about is the AFRP 13 working paper which was released in May of '95, it's out. 14 MR. GALLERY: And did that -- did that working paper 15 set out the flows that the biologists thought were 16 necessary to accomplish doubling? 17 DR. KJELSON: Yes, it did. 18 MR. GALLERY: And are those the same flows that were 19 adopted in the -- no. Are those the same flows that were 20 in the biological opinion for Delta smelt? 21 DR. KJELSON: No, I don't believe so. 22 MR. GALLERY: Those -- they're not the same flows 23 that are in the plan for Vernalis, in the '95 plan for 24 Vernalis? 25 DR. KJELSON: No. CAPITOL REPORTERS (916) 923-5447 1210 1 MR. GALLERY: For those of you who feel that you're 2 qualified to answer, and I'm sure you're all qualified to 3 answer this, it's my understanding that the fall-run 4 chinook salmon is gone on the portion of the Stanislaus -- 5 portion of the San Joaquin River upstream from the Merced 6 confluence and has been gone since Friant came on line; is 7 that correct? Mr. Loudermilk? 8 DR. LOUDERMILK: That is essentially correct. 9 MR. GALLERY: And that there was formally also a 10 spring-run in the San Joaquin River in its tributaries? 11 DR. LOUDERMILK: Yes. 12 MR. GALLERY: And that's gone totally now? 13 DR. LOUDERMILK: Yes, throughout the watershed. 14 MR. GALLERY: Not only the upper portion of the San 15 Joaquin, but the various tributaries down to the Merced and 16 Tuolumne and the Stanislaus? 17 DR. LOUDERMILK: With regard to Vernalis, that's 18 correct. 19 MR. GALLERY: And when did that happen, when did the 20 spring-run disappear? 21 DR. LOUDERMILK: To my knowledge the last document 22 compilation of spring-run was on the main stem of San 23 Joaquin. And it disappeared in the year following the 24 closure of Friant Dam. 25 MR. GALLERY: So there was spring-run up until Friant CAPITOL REPORTERS (916) 923-5447 1211 1 was closed? 2 DR. LOUDERMILK: Right. 3 MR. GALLERY: Is there still a spring-run on the 4 tributaries, the Merced, Tuolumne, and Stanislaus? 5 DR. LOUDERMILK: Not to our knowledge. 6 MR. GALLERY: And that's gone because? 7 DR. LOUDERMILK: Well, the document is not clear. 8 Some of the records suggest that spring-run, because they 9 migrate into fresh water, hold over as an adult in fresh 10 spring water in their native stream through the summer 11 months and spawn early the following fall just prior to the 12 fall-run spawning. 13 Some of the records indicate that with the advent 14 of dams on the San Joaquin tributaries in combination with 15 the normal reduction in natural flow during the summer 16 months after snow melt, those flows became very low in 17 combination with dams on the tributaries such that those 18 spring-run that had to reside through the summer months, 19 could no longer move up into the cool canyon reaches, the 20 water temperatures were cooler through the summer months. 21 That combination is what I've seen in the literature as the 22 primary explanation. 23 MR. GALLERY: Well, then, would that have occurred 24 before Friant came on line, then, on the tributaries? 25 DR. LOUDERMILK: On the northern tributary? CAPITOL REPORTERS (916) 923-5447 1212 1 MR. GALLERY: Yeah, on the Merced and the Tuolumne 2 and the Stanislaus. 3 DR. LOUDERMILK: Yeah, I'm not a real good historian 4 when it comes to the dates of the construction of the dams, 5 but I know at least two of those tributaries had dams prior 6 to the turn of the century. 7 MR. GALLERY: So the loss of spring-run, then, on 8 those tributaries could have come from the dams that have 9 been there for a long time? 10 DR. LOUDERMILK: Quite possible. 11 MR. GALLERY: Did any of you others have any response 12 to that to add? 13 MS. BRANDES: (Witness nods.) 14 DR. KJELSON: (Witness nods.) 15 MR. JACKSON: Would the record reflect that all of 16 them were offered the opportunity? 17 C.O. CAFFREY: Thank you. Thank you, Mr. Jackson, I 18 was just going to repeat that. To this panel and all other 19 witnesses it's important that you respond audibly into the 20 mic so that a nod -- we can see the nod, but it's hard to 21 record a nod on one of these machines. Thank you. 22 MR. GALLERY: The fish doubling concept could you -- 23 could you give me the more specific definition of that, 24 Mr. Loudermilk? When we're talking about the fish doubling 25 what is the specific goal that we're talking about? CAPITOL REPORTERS (916) 923-5447 1213 1 DR. LOUDERMILK: I am not sure I'm the best person to 2 ask that. And I think also there may be different 3 definitions depending on what piece of legislation you may 4 be referring it to. 5 MR. GALLERY: Mr. Kjelson, can you give us a 6 definition of fish doubling that's in the CVPIA? 7 DR. KJELSON: Well, why don't I just read it to you 8 to make sure I'm correct. 9 MR. GALLERY: All right. 10 DR. KJELSON: If I can find it. This is basic -- 11 this is basically what we refer to as the doubling goal as 12 you refer to it, but the goal of the AFRP as stated in 13 Section 3406-P-1-P of the CVPIA, the goal of the AFRP is, 14 (Reading): 15 "Is to develop within three years of the 16 enactment and implementation of a program which 17 makes all reasonable efforts to ensure that by 18 the year 2002 natural production of anadromous 19 fish," and I would add including salmon, "in 20 Central Valley rivers and streams will be 21 sustainable on a long-term basis at levels not 22 less than twice the average levels obtained 23 during the period of 1967 through 1991." 24 MR. GALLERY: Do you know, Mr. Kjelson, why that time 25 period was selected to achieve a doubling goal? CAPITOL REPORTERS (916) 923-5447 1214 1 DR. KJELSON: I wasn't party to selecting that exact 2 time period. That was a part of the whole process of 3 developing a legislation and input from a lot of people. 4 MR. GALLERY: So that if we take that time period, 5 there wasn't any spring-run during that time period, so 6 we're not trying to double the spring-run? 7 DR. KJELSON: Not in the San Joaquin basin. 8 MR. GALLERY: But there were fall-run. And there was 9 no fall-run in the upper San Joaquin, but there was 10 fall-run in the tributaries during that period? 11 DR. KJELSON: That's correct. 12 MR. GALLERY: Now, that -- I think one of you 13 testified, I think it was maybe you, Mr. Kjelson, that you 14 understand that Melones is going to be carrying the lion's 15 share of not only the VAMP flows, the flows required under 16 the San Joaquin River Agreement, but also the flows for the 17 remainder of the year under the plan. Do I state that 18 correctly? 19 DR. KJELSON: I didn't testify to that. But I'm 20 assuming you're reading the -- the river agreement 21 correctly, but I'm not involved in that aspect. 22 MR. GALLERY: All right. Now, is it true that you 23 know -- you're aware that New Melones came on line in the 24 early 1970s? 25 DR. KJELSON: Yes, I am. CAPITOL REPORTERS (916) 923-5447 1215 1 MR. GALLERY: So is it fair to say that the New 2 Melones Reservoir itself, the impoundment of that water has 3 not been a significant factor in the decline of the 4 fall-run salmon? 5 DR. KJELSON: In what to the fall-run salmon? 6 MR. GALLERY: Has not been a significant factor in 7 the decline of the fall-run salmon in the San Joaquin 8 system? 9 DR. KJELSON: I would not conclude that. 10 MR. GALLERY: You would not? 11 DR. KJELSON: No. 12 MR. GALLERY: Do you know what year New Melones 13 reservoir came on line? 14 DR. KJELSON: You just stated approximately 1970. I 15 forget the exact year. 16 MR. GALLERY: Yes. And you're aware that when it 17 came on line the permits required that fishery releases be 18 made each year of 98,000 acre feet? 19 DR. KJELSON: Yes, I recall that. 20 MR. GALLERY: And, also, that some salinity 21 increases -- releases were required to be made and plus 22 some salinity releases on top of that up to 70,000? 23 DR. KJELSON: Flows -- 24 MR. GALLERY: Yes. 25 DR. KJELSON: Flows to achieve certain salinity to CAPITOL REPORTERS (916) 923-5447 1216 1 lower them? 2 MR. GALLERY: Yes. 3 DR. KJELSON: I understand that in general. 4 MR. GALLERY: So you're saying that even with those 5 releases that were mandated on the reservoir, that 6 reservoir itself may have contributed to the decline of 7 salmon, the fall-run salmon? 8 DR. KJELSON: Well, I will answer generally and 9 Mr. Loudermilk may have more detailed comments on that, but 10 the fact that flows are mandated doesn't necessarily mean 11 that they are adequate for particularly meeting a goal such 12 as doubling natural production, or meeting the needs of the 13 fish under consideration. 14 MR. GALLERY: Mr. Loudermilk, would you say that 15 the -- that the -- that the decline of the salmon during 16 the periods 1967, 1991, that the responsibilities of the 17 New Melones Project for that decline was -- was 18 substantially less than would have been attributed to the 19 operations on the Merced River, the reservoir operations on 20 the Merced River? 21 DR. LOUDERMILK: I'd have to -- that's a very 22 complicated question. I don't think I could render a very 23 good judgment at this point. 24 MR. GALLERY: And the Tuolumne River? 25 DR. LOUDERMILK: Same. CAPITOL REPORTERS (916) 923-5447 1217 1 DR. KJELSON: I want to clarify something, I don't 2 think we're stating in the goal that there was a specific 3 decline between '67 and '91. The goal is to double the 4 average levels of fish between that period. 5 MR. GALLERY: So that -- then, that goal is looking 6 at a decline that occurred previous to that period? If we 7 wanted to double -- if we wanted to double the amounts, the 8 average amounts that were in there during that period is 9 that because there was a decline caused previously to that? 10 MR. BIRMINGHAM: Objection. Calls for a -- calls for 11 a -- an answer that this witness is not qualified to give. 12 That goal was established by congress and this witness is 13 not qualified to express the intent of congress. 14 MR. GALLERY: Let me, perhaps, try it again. 15 C.O. CAFFREY: Try it again, Mr. Gallery. Thank you. 16 MR. GALLERY: Mr. Kjelson, you've -- obviously, you 17 have had a lot of experience and knowledge about the river 18 and the fisheries in the San Joaquin River system. Based 19 on your knowledge, can you tell us that there was a 20 significant decline of fall-run salmon in the San Joaquin 21 River system prior to the -- prior to 1967? 22 DR. KJELSON: Again, my expertise is not in the San 23 Joaquin drainage. Most of my experience has been in the 24 Delta. Mr. Loudermilk may wish to speak to that. But, 25 again, as I believe the Chairman, or someone commented on I CAPITOL REPORTERS (916) 923-5447 1218 1 guess in the correction that was being made, congress set 2 that goal. 3 San Joaquin River basin has been very variable in 4 its production rising and falling as previous testimony has 5 mentioned. But I'm not sure where you're heading as far as 6 the decline. The goal is to try to improve production 7 there. And it infers that decline has occurred. And I 8 think in general that's correct, over the years. 9 MR. GALLERY: Mr. Loudermilk, he says that you're the 10 expert on that. 11 DR. LOUDERMILK: Thanks, Marty. 12 MR. GALLERY: So the question is as to: Was there a 13 significant decline in the fall-run prior to 1967 in the 14 San Joaquin River system? 15 DR. LOUDERMILK: In Fish and Game Exhibit 19 there's 16 a -- I apologize for not having an overhead of the 17 Stanislaus River specifically, but let's go ahead and put 18 the entire basin up. 19 C.O. CAFFREY: This is an exhibit I take it? 20 DR. LOUDERMILK: This is Fish and Game Exhibit 19. 21 C.O. CAFFREY: Thank you, sir. 22 DR. LOUDERMILK: This is one component of that. And 23 what this depicts is the number of fall-run chinook salmon 24 that return and spawn in the tributaries of the San 25 Joaquin, those being the Stanislaus, Tuolumne, and Merced CAPITOL REPORTERS (916) 923-5447 1219 1 and including those fish returning to the Merced River 2 hatchery. And you can see it's quite cyclic during that 3 time period you're asking about, in the late '60s on into 4 the '70s and declines, again, thereafter. 5 The Stanislaus River is one of the several sources 6 of spawn escapements included in that graphic. And, 7 unfortunately, I don't have an overhead of the Stanislaus 8 River specifically, but it follows that same cyclic 9 pattern. And to give you an idea of the run sizes in the 10 Stanislaus at that time, they were ranging from as low as 11 less than a thousand fish to as high as about 13,000 fish. 12 And you can see that the magnitude here is quite a bit 13 larger because of all the other sources. 14 MR. GALLERY: Well, Mr. Loudermilk, were those cycles 15 where the reduction falls way down, were those due to 16 reservoirs that exist down those tributaries, or some other 17 cause, or do you have an opinion? 18 DR. LOUDERMILK: It's probably any number of causes. 19 It's quite hard to separate the inflows of any one 20 reservoir from the others. 21 MR. GALLERY: Would you say that the reservoirs on 22 the other tributaries, and even the reservoir that existed 23 previously on the Stanislaus River, the smaller Melones 24 reservoir was partial reason in those declines? 25 DR. LOUDERMILK: I'm sure they were all part of the CAPITOL REPORTERS (916) 923-5447 1220 1 declines in the past, but also the natural hydrologic cycle 2 is a factor as well. 3 MR. GALLERY: Yes. Those cycles that I see on 4 that -- on that blowup, don't seem to follow hydrologic 5 cycles as I sort of understand it; is that correct? 6 DR. LOUDERMILK: Yeah. Generally, there's about a 7 three to three-and-a-half year -- two-and-a-half to 8 three-and-a-half year lag during the dry cycles and when 9 the offspring return as adults. There is a bit of a lag. 10 MR. GALLERY: So those lower bars, do they represent 11 the dry cycles to you, is that what they represent? Are 12 they following -- tracking dry cycles a few years later? 13 DR. LOUDERMILK: That pattern is essentially there, 14 but there's other factors that determine those low 15 production years as well. 16 MR. GALLERY: And those other factors would probably 17 include the reservoirs and the operation of the reservoirs 18 on the tributary? 19 DR. LOUDERMILK: The exact habitat conditions in the 20 tributaries, on the main stem San Joaquin, in the Delta, in 21 the ocean, all sorts of other factors. 22 MR. GALLERY: Okay. Let's see, then, my last 23 question should be obvious to all of you, but I'll ask it 24 anyway. The San Joaquin River Agreement and the VAMP 25 program is only designed to deal with the river during the CAPITOL REPORTERS (916) 923-5447 1221 1 spring pulse-flow period and then to kick in a little water 2 during the October pulse flow; is that correct? All of the 3 other months of the year are not involved in the VAMP 4 experiment; is that correct? 5 MR. O'LAUGHLIN: I object. That's two different 6 questions. There was a first question and a second 7 question, so I'll object that it's compound. 8 C.O. CAFFREY: Can you break that up into one or two 9 or more questions? 10 MR. GALLERY: Sure. Mr. Hanson, you understand that 11 the VAMP experiment and the agreement itself only pertains 12 to a 30-day pulse period in the spring and to the October 13 pulse outflows; is that correct? 14 MR. O'LAUGHLIN: Objection. It's compound, again, 15 because he's talking about the San Joaquin River Agreement 16 and the VAMP. The document that's been labeled as the San 17 Joaquin River Agreement. Exhibit Number 2 speaks for 18 itself and identifies measures throughout the entire 19 agreement. The VAMP only addresses the 31-day pulse-flow 20 period. 21 C.O. CAFFREY: Can you break it into two questions, 22 Mr. Gallery? 23 MR. GALLERY: Yeah, I'll try it once more. The VAMP 24 experiment that's provided for under the San Joaquin River 25 Agreement does not deal with, or involve any experiment CAPITOL REPORTERS (916) 923-5447 1222 1 with flows in the San Joaquin River outside of the spring 2 first pulse-flow period and the October pulse-flow period; 3 is that correct? 4 DR. HANSON: The VAMP experimental portion only deals 5 with the spring. 6 MR. GALLERY: So only the spring. So you gentlemen 7 and Ms. Brandes your knowledge about how this is going to 8 operate, you're not involved at all in the flows in the 9 river from January through March, or after the spring 10 pulse-flow period; is that correct? 11 MS. BRANDES: That's correct. 12 DR. HANSON: That's correct. 13 DR. KJELSON: That's correct. 14 MR. GALLERY: Thank you. That's all. 15 C.O. CAFFREY: Thank you, Mr. Gallery, let me ask a 16 couple of questions here. Mr. Porgans, how much time do 17 you feel that you need for your cross-examination? 18 MR. PORGANS: Probably 20 or 30 minutes. 19 C.O. CAFFREY: 20 or 30 minutes. And I think 20 probably with that, we'll just break now and come back on 21 Tuesday and start with Mr. Porgans and then go to 22 Mr. Birmingham. 23 MR. O'LAUGHLIN: Well, the -- the only thing is, 24 Mr. Chairman, if we could, I think it would be helpful if 25 Mr. Porgans can get done today, because Ms. Brandes won't CAPITOL REPORTERS (916) 923-5447 1223 1 be back next week. And I would prefer all the 2 cross-examination, as I know it, would be done. 3 C.O. CAFFREY: Mr. Birmingham? 4 MR. JACKSON: No. No. No. 5 MR. O'LAUGHLIN: You've already had your chance at 6 cross-examination. 7 C.O. CAFFREY: They're going to come back at another 8 time for redirect and rebuttal? 9 MR. BIRMINGHAM: Absolutely. I just meant that they 10 will be back. 11 MR. O'LAUGHLIN: They'll be back maybe in other 12 phases, but we're not saying they'll be back for redirect. 13 I'm not making that statement yet. 14 MR. JACKSON: You haven't decided that? 15 MR. O'LAUGHLIN: I haven't decided about redirect at 16 this time. 17 C.O. CAFFREY: Of course, of course. If there's no 18 redirect, there's no recross. 19 MR. O'LAUGHLIN: That's my understanding as what the 20 Chair has decided previous. So if Mr. Porgans would go 21 ahead and do his cross-examination I think we may be able 22 to finish the cross-examination today and go to redirect. 23 C.O. CAFFREY: Mr. Birmingham, what is your 24 situation? I thought we had you down for 25 cross-examination. CAPITOL REPORTERS (916) 923-5447 1224 1 MR. BIRMINGHAM: My cross-examination does not 2 involve any questions for Ms. Brandes. 3 C.O. CAFFREY: All right, then. 4 MS. LEIDIGH: Staff has cross. 5 C.O. CAFFREY: Mr. Porgans, does your 6 cross-examination involve questions of Ms. Brandes? 7 MR. PORGANS: Yes. 8 C.O. CAFFREY: And do you think you can do it in 9 about 20 minutes? 10 MR. PORGANS: Yeah. You know me, Mr. Chairperson, 11 I'm use to having 5, so 20 it would be a picnic. 12 C.O. CAFFREY: And does staff have questions of 13 Ms. Brandes? 14 MR. HOWARD: Not of Ms. Brandes. 15 C.O. CAFFREY: How about Board Members? Okay. 16 Mr. Porgans, then, why don't you proceed with your 17 cross-examination and we'll get through it. 18 ---oOo--- 19 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 20 BY PORGANS AND ASSOCIATES 21 BY PATRICK PORGANS 22 MR. PORGANS: Thank you, Mr. Chairperson and Members 23 of the Board and members of the panel, my name is Patrick 24 Porgans of Porgans and Associates and de facto public 25 trustee person. I have a series of questions for the panel CAPITOL REPORTERS (916) 923-5447 1225 1 in general and then I have specific questions. 2 The first question I have for the panel: Would it 3 be an accurate synopsis of your collective testimony to say 4 that the draft experimental design for VAMP is based upon 5 limited data? 6 DR. LOUDERMILK: Yes. 7 DR. HANSON: The data are limited. 8 MR. PORGANS: Excuse me? 9 DR. LOUDERMILK: Yes. 10 DR. KJELSON: In general, yes. 11 MS. BRANDES: Yes. 12 DR. MORHARDT: I wasn't involve in the design of VAMP 13 at all. 14 DR. HANSON: Yes. 15 MR. PORGANS: Okay. Are all the panelists in 16 agreement with Ms. Brandes's findings that are quantifiable 17 benefits attributable to increase flows in the river and 18 salmon smolt survival rates? 19 DR. LOUDERMILK: I'd, perhaps, like to clarify that. 20 MR. PORGANS: Yes. 21 DR. LOUDERMILK: As Ms. Brandes described earlier, 22 today she described a hypothesis that she developed and, 23 then, subsequent analysis based on using the information 24 that was -- that exists today to conclude that, indeed, 25 there is a relationship between flow and survival, flow in CAPITOL REPORTERS (916) 923-5447 1226 1 the San Joaquin River at Stockton. 2 And so I guess my conclusion at this point is that 3 based on the data in hand and the hypothesis that there 4 does appear to be a relationship there. And there's great 5 value in helping refine that. And absent the ability to 6 separate the influence of flows and exports we'll have a 7 very hard time refining that. 8 MR. PORGANS: I appreciate that. I appreciate the 9 clarification. So in the context of his reflection on the 10 statement is everyone in agreement with that? 11 DR. KJELSON: Yes. 12 DR. MORHARDT: I do not believe the data are at all 13 compelling that there is a relationship between flow and 14 smolt survival. 15 MR. PORGANS: Okay. And you said that -- 16 C.O. CAFFREY: Let me. Just for the record, you 17 asked if everybody agreed. 18 MR. PORGANS: I need to get that first. 19 C.O. CAFFREY: We didn't get an audible response 20 "yes" or "no" from everyone as I recall. 21 DR. HANSON: I have not, yet, responded. I have not 22 had an opportunity to really critically review the analyses 23 and the data that was presented in her summary. I've 24 worked with Pat for a long time. I have confidence in the 25 analyses that she's presented. Based on the information CAPITOL REPORTERS (916) 923-5447 1227 1 that I've seen I would agree with Mr. Loudermilk's 2 assessment, but part of the key element of VAMP is to 3 continue to develop that and refine that understanding. 4 DR. KJELSON: I agree with the clarification 5 Mr. Loudermilk made. 6 MR. PORGANS: So we only have one dissenting -- 7 excuse me, one person saying that they're not in agreement; 8 is that correct? Your name, I'm sorry? 9 DR. MORHARDT: Emil Morhardt. 10 MR. PORGANS: Morhardt, yes, Dr. Morhardt. So it's 11 your position that at this point you do not agree with 12 that? 13 DR. MORHARDT: I don't believe the data are adequate 14 to draw that conclusion. 15 MR. PORGANS: Okay. And how much involvement have 16 you had, Dr. Morhardt, in this Bay-Delta/San Joaquin River 17 issue relative to salmon, salmon survival rates, et cetera? 18 DR. MORHARDT: I've been involved since about 1986. 19 MR. PORGANS: Okay. And have you done any actual 20 work on the San Joaquin River yourself in relationship to 21 salmon survival rates? 22 DR. MORHARDT: I've not done any fieldwork on the San 23 Joaquin River. 24 MR. PORGANS: Thank you. This is a general question: 25 Were any of you involved in the negotiations leading up to CAPITOL REPORTERS (916) 923-5447 1228 1 the agreement? 2 MS. BRANDES: No. 3 MR. PORGANS: Excuse me, Mr. Loudermilk? 4 DR. LOUDERMILK: Indirectly. 5 MR. PORGANS: Ms. Brandes? 6 MS. BRANDES: No. 7 MR. PORGANS: Mr. Kjelson? 8 DR. KJELSON: I think most of us had indirect input, 9 but not as a negotiator. 10 MR. PORGANS: Mr. Morhardt? 11 DR. MORHARDT: I was not involved in negotiating. 12 DR. HANSON: I agree with Dr. Kjelson. I provided 13 input as to Bruce Herbold. We provided draft documents and 14 information but we were not part of the negotiators. 15 MR. PORGANS: Thank you. It's been stated that the 16 agreement is based on six premises. One is the old 17 barrier. Two is the flow-export relationship. Three is 18 the New Melones operations. Four has to do with payment. 19 Five has to do with study and monitoring. And six 20 assurance disputes and resolution. 21 Is that your understanding of the agreement -- 22 excuse me, has anybody read the agreement? 23 DR. LOUDERMILK: Yes. 24 MR. PORGANS: You've all read the agreement? 25 MS. BRANDES: I do not believe that I have. CAPITOL REPORTERS (916) 923-5447 1229 1 MR. PORGANS: Excuse me, Mr. Loudermilk, have you 2 read the agreement? 3 DR. LOUDERMILK: I have read the agreement. 4 DR. KJELSON: Yes. 5 DR. MORHARDT: Yes. 6 DR. HANSON: Yes. 7 MR. PORGANS: Okay. For those of you who have read 8 the agreement, to your knowledge are all of the six 9 components interdependent, or could they still be viable in 10 the absence of one of the other components? Do we need 11 them all? 12 DR. LOUDERMILK: Can I clarify? 13 MR. PORGANS: Yes, please. 14 DR. LOUDERMILK: I envision the agreement as the sum 15 total of what some are defining as the San Joaquin River 16 Agreement and the two appendices. So the first appendices 17 being, essentially, the study program. And the second 18 being I think hydrologic aspects. So based on that, yes. 19 MR. PORGANS: They're all interdependent? 20 DR. LOUDERMILK: Well, I think in order for the 21 entire -- in order for the entire program to function 22 successfully, indeed, they were interdependent. 23 MR. PORGANS: Thank you, Mr. Loudermilk. 24 Ms. Brandes -- excuse me, Dr. Kjelson? 25 DR. KJELSON: Yes, I would agree that they're all CAPITOL REPORTERS (916) 923-5447 1230 1 independent, that is what the agreement does. 2 DR. MORHARDT: I don't have an opinion. 3 DR. HANSON: I agree as well. 4 MR. PORGANS: Thank you. Does anyone know why this 5 12-year period was chosen? Were any of you involved in 6 that the 12-year period? 7 DR. KJELSON: I wasn't. 8 DR. LOUDERMILK: Chuck? 9 DR. HANSON: I was not directly involved in the 10 12-year period. We did present to, you know, both the 11 technical group as well as the policy group the type of 12 data that we felt we needed to get, the number of data 13 points that we felt would be appropriate for further 14 analysis and for addressing the basic objectives. 15 It was recognized in those discussions that there 16 was some likelihood we would not be able to get true VAMP 17 data points in every year. 1998 is an example, because of 18 the high flows that occurred this spring. And it was 19 recognized as a result of those discussions that the 20 minimum number of years would be inappropriate for 21 establishing the period for the agreement. And that a 22 longer period of time would be appropriate to provide the 23 opportunities given the hydrologic fluctuations that we 24 feel would likely occur to provide the necessary time to 25 accomplish the task. But I was not part of the actual 12 CAPITOL REPORTERS (916) 923-5447 1231 1 years. 2 MR. PORGANS: Okay. And as biologists during the -- 3 and I know that Dr. Kjelson has been involved in some for 4 sometime as has Mr. Loudermilk. 5 Over the last 40 years has either the U.S. Fish 6 and Wildlife Service, or the Department of Fish and Game 7 quantified or qualified the relative impacts of water 8 exports and flows and agriculture return flows on salmon 9 populations, habitat, and food chain and survival rates on 10 the San Joaquin River? 11 MR. O'LAUGHLIN: Mr. Chairman, I object. Compound. 12 MR. PORGANS: I'll simplify it for him. 13 C.O. CAFFREY: Can you break that up, Mr. Porgans? 14 MR. PORGANS: Sure. Anything for him. He's a nice 15 guy. Do you know of any comprehensive studies that have 16 been done in the last 40 years that looks at salmon 17 survival rates on the San Joaquin River relative to flow? 18 DR. LOUDERMILK: Can you help me with the word, with 19 your definition of "comprehensive"? There's been some 20 work. Comprehensive is a broad word. 21 MR. PORGANS: It looks at all the variables 22 associated with. 23 DR. LOUDERMILK: No. 24 MS. BRANDES: No. 25 DR. KJELSON: Well, your question is quite general. CAPITOL REPORTERS (916) 923-5447 1232 1 The role of the Department of Fish and Game and Fish and 2 Wildlife Service and NMFS, and Natural Fishery Service 3 included, our job is to look into the factors influencing 4 fish and wildlife. And, of course, we've done a lot of 5 evaluations of that sort ranging from everything from FERC 6 analysis to Delta Water Quality Control Plan. So, in 7 general, that's our business and that's what we do, but to 8 be more specific I don't know where you're going. 9 MR. PORGANS: Well, I understand what you're saying, 10 Dr. Kjelson, but see I'm asking you in a general sense: 11 Have we interrelated all of those various studies 12 that you're talking about, that each of your agencies have 13 conducted, to look at the big picture? 14 DR. KJELSON: I don't think we have in a truly fully 15 comprehensive sense, but there's been some attempts to do 16 that, the CVPIA working paper being one and various 17 documents probably that Fish and Game has done. But how 18 comprehensive that is, which I think is what you're getting 19 at, I don't know. 20 MR. PORGANS: Okay. Was any of you -- and I know 21 that this question was raised, but I want to ask you each 22 of you in order. Were any of you involved in the 110 -- 23 coming up with this 110,000 acre feet figure? 24 DR. LOUDERMILK: No. 25 MS. BRANDES: No. CAPITOL REPORTERS (916) 923-5447 1233 1 DR. KJELSON: No. 2 DR. MORHARDT: I was not. 3 DR. HANSON: No. 4 MR. PORGANS: Now, for the biologists that are on 5 this panel that represent the public -- and I realize 6 someone was making reference to payment, you were paid to 7 do certain type of work on the VAMP research, I'm asking 8 you a question as a member of the public, as public 9 employees this is my question: 10 Are you supporting this experiment based upon the 11 information you've received as part of this entire 12 experiment? You know, for example, the 110,000 acre feet 13 is going to be there, the money is going to be there, and 14 all those other things are going to be there. But is your 15 support of this experiment based on those factors? 16 MR. BIRMINGHAM: Objection. Argumentative. 17 MR. PORGANS: I can rephrase it. 18 C.O. CAFFREY: All right. Give it a try, 19 Mr. Porgans. 20 MR. PORGANS: Thank you, Mr. Chairperson. 21 Okay. Do each of you support the VAMP? 22 MR. O'LAUGHLIN: Can I just ask one clarifying -- 23 C.O. CAFFREY: Go ahead, Mr. O'Laughlin. 24 MR. O'LAUGHLIN: That's a great question. Are you 25 asking as individuals, or are you asking that on behalf of CAPITOL REPORTERS (916) 923-5447 1234 1 the agencies they represent? 2 MR. PORGANS: As public servants, as representatives 3 of the agencies. 4 MR. O'LAUGHLIN: Thank you. 5 C.O. CAFFREY: Thank you for the clarification. You 6 all understand the question? 7 MR. PORGANS: Sorry about that, Mr. Loudermilk. 8 DR. LOUDERMILK: As my testimony summarized, if 9 successfully implemented, yes. 10 MR. PORGANS: Okay. 11 MS. BRANDES: I believe the question you asked is 12 whether my agency supports the VAMP, is that the question? 13 C.O. CAFFREY: Actually, if I can clarify my 14 understanding of the question it is "Do you -- 15 MS. BRANDES: Personally? 16 C.O. CAFFREY: "Do you support it as an official 17 representative of your agency?" In your official capacity, 18 do you support it? 19 MS. BRANDES: The VAMP experimental design, that part 20 I support. 21 MR. PORGANS: Okay. 22 MS. BRANDES: That's the only part that I'm 23 knowledgeable of. 24 DR. KJELSON: I support the VAMP with the 25 supplementation of my testimony yesterday, written and CAPITOL REPORTERS (916) 923-5447 1235 1 oral. And I believe it goes without saying with the Fish 2 and Wildlife Service having signed the Letter of Support 3 for the San Joaquin River Agreement, we do support it. 4 MR. PORGANS: Thank you. Okay. Now, in the 5 agreement it makes reference to the fact, and this issue 6 has been brought up, that it can be terminated at any time. 7 We're all aware of that? 8 MS. BRANDES: Yes. 9 MR. PORGANS: It also makes reference to the fact 10 that the U.S. Bureau of Reclamation and the Department of 11 Water Resources would be the backstop, you know, to meet 12 the flow requirements. Is that your understanding? 13 Let me go back and read it. Excuse me, Mr. Chairperson. 14 MR. LOUDERMILK: You mean in the event of 15 termination? 16 MR. PORGANS: Yes. 17 DR. LOUDERMILK: My understanding is that that would 18 be the case for two years. 19 MR. PORGANS: Anybody else have an understanding? 20 DR. MORHARDT: I don't have any knowledge. 21 MS. BRANDES: Yes. 22 MR. PORGANS: Okay. This might be -- I have to ask a 23 question, Mr. Chairperson, if I need to be corrected, help 24 me out. 25 C.O. CAFFREY: I'll do my best, Mr. Porgans. CAPITOL REPORTERS (916) 923-5447 1236 1 MR. PORGANS: Thank you very much, Mr. Chairperson. 2 What level of confidence do you have, or do you have any 3 level of confidence that the state and federal government 4 would come back and meet the standard? 5 MS. BRANDES: I think that's out of my area of 6 expertise. 7 DR. LOUDERMILK: I can't comment on that either. 8 MR. PORGANS: Yeah. 9 DR. KJELSON: I would answer the same way. 10 MR. PORGANS: Thank you. 11 C.O. CAFFREY: As Chairman Maughan, rest his soul, 12 would say: Sometimes the answers can only be, yes, no, or 13 I don't know. That's okay. 14 MR. PORGANS: May his soul rest in peace. I had 15 great respect for the gentleman. Moving on. Now, you can 16 get your attorneys riled up over here -- excuse me, the 17 attorneys. 18 Are you aware of the fact that, historically, 19 during dry periods, and this is when we're talking about 20 this thing kicking in, that the Department of Water 21 Resources and the U.S. Bureau of Reclamation has failed to 22 meet even the minimum standards under D-1485? 23 MR. SEXTON: Objection. Assume facts not in 24 evidence. The gentleman referred to when this thing is 25 kicking in alluding to the fact that this agreement would CAPITOL REPORTERS (916) 923-5447 1237 1 kick in in dry periods, that's not the case. 2 MR. PORGANS: All right. I'll rephrase it. 3 C.O. CAFFREY: Yes. Sustained. 4 MR. PORGANS: Is anybody aware of the fact that both 5 the Department and the Bureau, in years past, based on the 6 Board's record have failed to meet even the minimum 7 standard for maintaining water -- minimum water quality 8 standards in D-1422 and D-1485? Are you aware of that, 9 Mr. Loudermilk? 10 DR. LOUDERMILK: I am aware that there have been 11 situations where -- and time periods where certain 12 standards were not met. 13 MS. BRANDES: My answer is the same as Bill's. 14 DR. KJELSON: I will agree with what Bill said. 15 MR. PORGANS: As biologists, and this is a simple 16 question but I'm a simple man, is it your opinion or 17 understanding that water quality and water quantity are 18 inextricably linked for the survival of salmon and the food 19 chain they depend upon? 20 DR. HANSON: Yes. 21 MR. PORGANS: Thank you very much. I do appreciate 22 that. That was very kind of you. 23 DR. KJELSON: Yes. 24 MR. PORGANS: Thanks. All right. I want to step off 25 just for a second here and I want to ask you as biologists, CAPITOL REPORTERS (916) 923-5447 1238 1 I know you're concerned about water quality and we're 2 concerned about it in relationship to the answer you just 3 gave. 4 Is anyone here aware of the fact that the single 5 largest highly water quality impaired area in this nation 6 is in the San Joaquin Valley? Excuse me, Mr. Loudermilk, 7 I'm drifting over here. I'm trying to get out of here and 8 let Mr. Chairman and everybody go. 9 DR. LOUDERMILK: I am aware there's some major water 10 quality problems, but I'm not aware of the ranking of the 11 San Joaquin relative to elsewhere. 12 MR. PORGANS: Ms. Brandes? 13 MS. BRANDES: I am aware that there are also water 14 quality issues in the San Joaquin basin, but I'm not 15 familiar with how it ranks to other areas. 16 DR. KJELSON: I will give the same answer. 17 DR. MORHARDT: I have no expertise on that. 18 MR. PORGANS: Thank you. 19 DR. HANSON: I agree with the other panel members. 20 MR. PORGANS: You can always refer to my exhibit to 21 attachment one, if you have time to read it, if you get 22 bored over the weekend. 23 C.O. CAFFREY: No fair testifying, Mr. Porgans. 24 MR. PORGANS: Thank you. Just giving myself a plug. 25 C.O. CAFFREY: Just ask questions, sir. CAPITOL REPORTERS (916) 923-5447 1239 1 MR. PORGANS: Thank you. All right. Are you aware 2 of the fact that the State has classified about 130 miles 3 of the San Joaquin River as water-quality impaired? 4 DR. LOUDERMILK: Generally, yes. 5 MS. BRANDES: No. 6 DR. KJELSON: I'm not familiar with that. 7 DR. MORHARDT: Nor am I. 8 DR. HANSON: I'm not familiar with that either. 9 MR. PORGANS: Those that are familiar with it, do you 10 have any idea why -- of what's contributing to its 11 impairment? 12 DR. LOUDERMILK: No, I'm not familiar with the 13 specific reasons for the impairment, but I'm generally 14 familiar with -- that much of the main stem has received 15 that designation. 16 MR. PORGANS: Does anybody think that agricultural 17 drainage might have something to do with it, or is that 18 speculative? 19 MR. O'LAUGHLIN: I'm going to object. Outside the 20 scope of the witnesses, all of them, outside their scope of 21 expertise. 22 C.O. CAFFREY: Yeah. They have all said they were 23 not familiar with it, so I'll sustain that objection. 24 MR. PORGANS: Thank you. Are any of you aware that 25 the average total load of salt being deposited into the San CAPITOL REPORTERS (916) 923-5447 1240 1 Joaquin River -- 2 C.O. CAFFREY: That's only -- excuse me, Mr. Porgans. 3 We set that at 20 minutes. You thought you needed about 4 20, but if you need more we'll give it to you, sir. 5 MR. PORGANS: Sorry about that, Mr. Chairman. 6 C.O. CAFFREY: That's all right. We're just trying 7 to estimate, how much more time do you think you need? 8 MR. PORGANS: Let's try ten minutes. Okay? I'll 9 really try that. I don't want to talk too fast and I don't 10 want to lead the witnesses. 11 C.O. CAFFREY: We appreciate that. 12 MR. PORGANS: That would not be good. 13 C.O. CAFFREY: We appreciate that. We're with you 14 here, keep on rolling. 15 MR. PORGANS: Thank you. The question is: Are any 16 of you aware -- are any of you aware of the fact that about 17 700,000 tons of salt are deposited into the river annually 18 from its tributaries? 19 DR. LOUDERMILK: No. 20 MS. BRANDES: This is not my area of expertise. 21 DR. KJELSON: Nor mine. 22 DR. MORHARDT: Nor mine. 23 DR. HANSON: Nor mine. 24 MR. PORGANS: Okay. Let me move over here to this. 25 Looking at Exhibit 2, and I was on page 7, it was talking CAPITOL REPORTERS (916) 923-5447 1241 1 about, that's 5.5 on page 7, it was looking at existing -- 2 is that Mr. Godwin back there? 3 C.O. CAFFREY: Yes, Mr. Godwin, is that you? 4 MR. PORGANS: Exhibit 2 of the agreement. 5 MR. GODWIN: RGA Exhibit 2. 6 MR. PORGANS: Yes, RGA. 7 C.O. CAFFREY: Thank you, Mr. Porgans. 8 MR. PORGANS: Thank you. Right there on 5.5 it's 9 talking about the target flows, existing flows and target 10 flows. And I note that someone had asked you some 11 questions, but I wanted to clarify: Were any of you 12 involved in developing those flows? 13 DR. KJELSON: No. 14 MR. PORGANS: Excuse me, I want to ask each person 15 individually. Thank you. These flows here (indicating). 16 DR. LOUDERMILK: Not in the existing flow column, but 17 in the target flows, yes. I think in the interim process 18 of developing the Vernalis Adaptive Management Study 19 Program that I did have some involvement in setting target 20 flows. As I understand the target flows are the study 21 flows. 22 MS. BRANDES: No, I did not. 23 DR. KJELSON: I would come back to saying basically 24 what Bill did. I probably indirectly had some input on 25 target flows, but not on existing flows. CAPITOL REPORTERS (916) 923-5447 1242 1 DR. MORHARDT: I was not involved. 2 DR. HANSON: I was also involved in establishing 3 target flows, but not existing flows. 4 MR. PORGANS: Has anybody -- does anybody know 5 what -- realizing that you weren't involved, does anybody 6 know what those existing flows were based on, what's the 7 base period there for those flows? 8 DR. LOUDERMILK: No. I think the hydrologists would 9 probably answer that better. 10 MR. PORGANS: So have you? 11 MS. BRANDES: No, I do not. 12 DR. KJELSON: I would say the same thing. 13 DR. MORHARDT: No. 14 DR. HANSON: No. 15 MR. PORGANS: So your assumptions relative to the 16 target flows are based upon the existing flow data that you 17 weren't involved in? 18 DR. LOUDERMILK: One more time. 19 MR. PORGANS: The -- will you help me out? 20 (Whereupon the question was readback by the Reporter.) 21 DR. LOUDERMILK: Assumptions about? 22 MR. PORGANS: The target flows being inadequate. 23 DR. LOUDERMILK: The target flows specific to the 24 scope of the study and the purpose of the study plan are 25 within the context of the range of flows that allow the CAPITOL REPORTERS (916) 923-5447 1243 1 installation and operation of the head of Old River barrier 2 are -- were established to ensure ourselves of having a 3 broader range of study conditions as possible with 4 relatively stable flows combined with export reductions 5 such that we could get replication in each of the VAMP 6 study years within a 31-day period. Minimize the number of 7 variables, recognizing there are still variables we can't 8 control, but those that we can we were hoping to do that. 9 And so more than anything that, in addition to 10 being within the -- near the range of flows defined in the 11 1995 Water Quality Control Plan, those target flows are 12 specific to the study program and the likelihood of having 13 meaningful results at the end of that study period, or as 14 we progressed through the study period. 15 MR. PORGANS: I appreciate that, but that was not 16 what I was driving at, Mr. Loudermilk. We don't know what 17 time frame we're talking about in terms of the numbers. So 18 when we come back and we're looking -- I hope I'm not 19 making a comment, here help me out. 20 C.O. CAFFREY: Well, if it's in the form of a 21 question and it's not compound we can probably -- 22 MR. O'LAUGHLIN: Close. 23 C.O. CAFFREY: And if it's relevant to those. 24 MR. O'LAUGHLIN: Mr. Chairman, if I might for 25 Mr. Porgans, we will be providing two witnesses, CAPITOL REPORTERS (916) 923-5447 1244 1 Mr. Van Camp and Mr. Steiner, who will be talking about how 2 the existing flows came into the agreement, the basis for 3 the existing flows, and what the difference is between the 4 existing flows and the target flows, which was really done 5 as Mr. Hanson and Herbold testified were done by 6 hydrologists. 7 C.O. CAFFREY: So he's going to have hydrologists up 8 here that might be better talented in answering these 9 questions, Mr. Porgans. 10 MR. PORGANS: So I can simplify my question. So has 11 anyone verified these numbers that have been given to you 12 by the proponents of the agreement? 13 MR. O'LAUGHLIN: Vague and ambiguous as to "numbers." 14 MR. PORGANS: These numbers listed right here. 15 C.O. CAFFREY: Can you identify the exhibit? 16 MR. PORGANS: Existing flow numbers as stated on 17 Exhibit 2, on page 7, 5.5. 18 MR. O'LAUGHLIN: But that assumes facts not in 19 evidence because the agreement hasn't gone into being. So 20 there's no reason to verify the existing flow numbers. You 21 can't verify something that hasn't happened yet. 22 C.O. CAFFREY: I mean what are you trying to find 23 out, if they're familiar with the numbers? 24 MR. PORGANS: They're making a decision, their 25 assumptions are somewhat based upon these numbers. Are CAPITOL REPORTERS (916) 923-5447 1245 1 they not? 2 C.O. CAFFREY: I think you asked them if they 3 supported -- 4 MR. PORGANS: Yeah, support. 5 C.O. CAFFREY: -- the VAMP. So I would assume that 6 they -- if that's the same document that you're holding 7 there that they support everything that is in it. 8 MR. PORGANS: I understand it. Now, I'm asking them: 9 Have they been able -- do they have some way of verifying 10 that these numbers are accurate? Excuse me, have any of 11 you verified whether these numbers are accurate or not? 12 MR. O'LAUGHLIN: I don't mean to be argumentative. I 13 understand what you're getting at. I'm trying to be 14 helpful here. The target flows are the flows within the 15 VAMP study that are going to be studied under the VAMP. 16 Okay? 17 And as you heard Mr. Kjelson testify and 18 Mr. Loudermilk testify, they support those numbers. They 19 helped indirectly and directly come up with those numbers 20 in addition to Mr. Herbold and Hanson. The existing flow 21 as defined under the agreement is a flow that will be 22 calculated on a yearly basis by the hydrologists, and 23 that's set forth in San Joaquin River Agreement, Number 2. 24 So there's nothing to verify in regards to existing flow at 25 this time. You have to do it on a yearly basis. CAPITOL REPORTERS (916) 923-5447 1246 1 C.O. CAFFREY: I believe that's a logical clear 2 explanation. And so I might also add that I'm sustaining 3 his objection. 4 MR. O'LAUGHLIN: I just -- 5 C.O. CAFFREY: It actually wasn't an objection, he 6 was actually trying to clarify. 7 MR. O'LAUGHLIN: I'm not trying to hide anything. In 8 fact, Mr. Van Camp will be here on Tuesday and try to 9 explain in great detail Exhibit B and how we come up with 10 existing flow and what that means in the overall 11 operations. 12 C.O. CAFFREY: I think what he's saying is he's got 13 info for you, Patrick, but it's just not with this panel. 14 MR. PORGANS: I appreciate that and I appreciate that 15 Mr. Van Camp is going to be here. That's not my point. 16 C.O. CAFFREY: All right. You want to try it again? 17 MR. PORGANS: My point is: Has anyone -- have you -- 18 have you any way of knowing these numbers are real? 19 DR. LOUDERMILK: Well, the numbers I think you're 20 asking about are those two columns there, one being target 21 flows and one being existing flows. 22 MR. PORGANS: Yeah. 23 DR. LOUDERMILK: With respect to the target flows, 24 yes, I believe they're real. Yes, I believe they're at 25 appropriate levels for the -- to satisfy the intent and the CAPITOL REPORTERS (916) 923-5447 1247 1 design of the study program. With respect to the existing 2 flow column, as Mr. O'Laughlin described, I'm not the 3 witness that can verify that for you. 4 However, there's language in the agreement, in the 5 San Joaquin River Agreement and the appendices that provide 6 for technical committee and management committee review of 7 all information developed, including existing flow 8 estimates on an annual basis. And through that, through 9 the processes that are established in the agreement there's 10 ample opportunity, in my estimation from my perspective, to 11 verify on an annual basis what's there, what we're going to 12 be working with, how it's going to be scheduled. 13 MR. PORGANS: For sake of discussion I'll let that 14 ride, you know -- 15 C.O. CAFFREY: Thank you for that ruling, 16 Mr. Porgans. 17 MR. PORGANS: Mr. Chairperson, you're very kind. 18 C.O. CAFFREY: I don't make light of you. I 19 understand what you're saying. 20 MR. PORGANS: That's okay, you can do that, old boy. 21 I have a sense of humor. 22 C.O. CAFFREY: Thank you. 23 MR. PORGANS: So as stated earlier there is some 24 relationship between the water quality and the flows and 25 the survival rate of salmon. So my question is: Is anyone CAPITOL REPORTERS (916) 923-5447 1248 1 on the panel familiar with the biocumulative affects of 2 selenium on salmon? 3 DR. LOUDERMILK: Generally. 4 MR. PORGANS: Okay. 5 MS. BRANDES: I'm generally aware of some of the 6 studies that have been conducted. 7 DR. KJELSON: I'm not aware exactly at all of that 8 issue. 9 DR. MORHARDT: I've reviewed none of the studies. 10 DR. HANSON: I am somewhat knowledgeable about those 11 issues. 12 MR. PORGANS: That's good. And my question is: Does 13 anybody -- is anyone on this panel aware that -- excuse me. 14 Is anyone on the panel familiar with what the 15 standard for selenium is on the San Joaquin River, the 16 water quality standards, does anyone know what that is? 17 DR. LOUDERMILK: Just, generally. I'm aware that it 18 exists, but I don't work with that on a regular basis. 19 MS. BRANDES: No, I'm not aware on what the standard 20 is. 21 DR. KJELSON: No, I'm not aware. 22 DR. MORHARDT: Nor am I. 23 DR. HANSON: I haven't worked with that in several 24 years. 25 MR. PORGANS: Okay. I'm trying to think about how to CAPITOL REPORTERS (916) 923-5447 1249 1 put this into a question. Would it surprise you to know 2 that the standard is five parts per billion over there on 3 the San Joaquin River? 4 DR. LOUDERMILK: No. 5 MR. PORGANS: Does anybody know -- excuse me, I'm 6 going to go on. I'm just taking that as a "no" from 7 everybody. Is that okay, Mr. Chairperson, no, from 8 everybody here? 9 C.O. CAFFREY: I'm sorry? 10 MR. PORGANS: They didn't say, but I'm assuming they 11 said, no. But for the Court Reporter -- 12 C.O. CAFFREY: They need to be audible in their 13 answer. 14 DR. MORHARDT: No. 15 MS. BRANDES: I think this is outside my area of 16 expertise. 17 DR. MORHARDT: I would not be surprised. 18 DR. HANSON: I would not be surprised. In fact, the 19 five microgram per liter is also being proposed as the 20 water quality standard in the current EPA post-regulations. 21 C.O. CAFFREY: How are you doing on time, 22 Mr. Porgans? 23 MR. PORGANS: I appreciate that, Mr. Chairperson. 24 C.O. CAFFREY: Well, we're going to lose Board 25 Members here any second and also we were -- we did this in CAPITOL REPORTERS (916) 923-5447 1250 1 the spirit of keeping Ms. Brandes here. So maybe if you're 2 finished with her, we could continue your cross-examination 3 with the rest of the panel and release her for her 4 vacation. 5 MR. PORGANS: Okay. 6 C.O. CAFFREY: Or are you done with Ms. Brandes? 7 MR. PORGANS: That's fine. 8 C.O. CAFFREY: And do you have more questions for 9 the other panel members? 10 MR. PORGANS: Just a few more. 11 C.O. CAFFREY: What I don't want to do is if you say 12 ten, I don't want to go ten and then another ten after 13 that. I'd rather quit and come back next Tuesday and give 14 you the time that you need. 15 MR. PORGANS: No, I made a commitment that I was 16 going to be done and I want to do that. Let's go another 17 five minutes. 18 C.O. CAFFREY: All right, sir. We'll set it for 19 five. 20 MR. PORGANS: And I don't want to keep Ms. Brandes 21 any longer, unless she wants help with the baggage. 22 C.O. CAFFREY: I don't think five more minutes will 23 stop her from going to Hawaii, although I'm about to ask 24 her to take me with her. 25 MR. PORGANS: There's probably a waiting line on that CAPITOL REPORTERS (916) 923-5447 1251 1 one. Are you aware of the fact that the five parts per 2 billion selenium standard that the EPA set for the San 3 Joaquin River has been violated 82 percent of time since 4 1988 and 1992? 5 DR. LOUDERMILK: Nope. 6 MS. BRANDES: This is outside my area of expertise. 7 DR. KJELSON: No, I'm not aware. 8 DR. MORHARDT: Nor am I. 9 DR. HANSON: I'm not aware of the frequency. 10 MR. PORGANS: Are you aware of the fact that between 11 1993 and '94 the selenium standard was violated 11 out of 12 12 months? 13 DR. LOUDERMILK: No. 14 MR. SEXTON: Objection. Asked and answered. 15 MS. BRANDES: Outside my area of expertise. 16 C.O. CAFFREY: I'm going to sustain the objection. 17 It's been asked and answered. So you don't have to answer. 18 MR. PORGANS: Are you aware of the fact that about 19 70,000 pounds of selenium has been discharged into the San 20 Joaquin River between 1986 and 1994 just from the grassland 21 area into the San Joaquin River? 22 DR. LOUDERMILK: No, I'm not. 23 DR. MORHARDT: No. 24 DR. KJELSON: No. 25 DR. HANSON: No. CAPITOL REPORTERS (916) 923-5447 1252 1 C.O. CAFFREY: Actually, we're really -- Ms. Leidigh, 2 aren't we getting into the area of selenium? And we were 3 just reviewing one of your instructive letters that you 4 prepared for either my or Mr. Pettit's signature and it 5 actually used salinity as an example and that should be 6 dealt with primarily in Phase V. 7 Now, we've allowed a question here and there on 8 salinity if that was basically relevant. But if you're 9 going down the pathway of water quality now, Mr. Porgans, 10 as it pertains specifically to salinity and you have a lot 11 of questions in that area I think they're better asked in 12 Phase V. 13 MR. PORGANS: I'll do that, Mr. Chairperson, but I 14 want it understood for the record as stated by the panel 15 they're both directly related. You can't separate one from 16 the other. At any rate I'm going to give my last comment 17 here, my last question. 18 The agreement states that there's no guarantee 19 that they're going to double the fish population; is that 20 correct? Not just with VAMP, I'm talking about with all 21 the other factors. 22 DR. KJELSON: That's correct, it states that in the 23 agreement. 24 MR. PORGANS: Thank you. So if we're looking at the 25 existing condition of the river in relationship to the flow CAPITOL REPORTERS (916) 923-5447 1253 1 and the water quality and recognizing that there is this 2 relationship, you know, of what the fish swim in and what 3 they eat and their survival rate, then the question is: 4 How would those types of conditions I described benefit the 5 fish? 6 MR. BIRMINGHAM: I'm going to object. 7 MR. PORGANS: Too vague? Too vague. Okay. In light 8 of the fact that the river is so impaired -- 9 C.O. CAFFREY: Wait. Wait. Wait. Are you 10 reformulating the question? 11 MR. PORGANS: Yeah, excuse me. 12 C.O. CAFFREY: All right. Go ahead, Mr. Porgans. 13 MR. PORGANS: It's a reformulation of the question. 14 In light of the fact that the river's quality is so 15 impaired as designated by this Board and realizing the 16 historical situation, how can this help to benefit? I 17 mean, the totals, how -- how could we -- I mean, isn't this 18 going to reduce the probability of doubling the fish? Not 19 the VAMP, I'm talking about all these activities, how is 20 that going to contribute to making the doubling possible, 21 or will it? 22 C.O. CAFFREY: That seems -- excuse me, that seems to 23 be a question that's been asked and answered in many, many 24 forms throughout the course of today. It's very, very 25 general. Mr. O'Laughlin? CAPITOL REPORTERS (916) 923-5447 1254 1 MR. O'LAUGHLIN: It's argument, too. 2 C.O. CAFFREY: It was posed in an argumentative -- 3 MR. O'LAUGHLIN: I have no problem with the argument, 4 but it's just not a question. 5 MR. PORGANS: All right, Mr. Chairperson, I have had 6 ten minutes and I'll let it go with that. And I'll discuss 7 these issues as we move along here in the process. And I 8 thank you very much and the panel. 9 C.O. CAFFREY: Thank you, Mr. Porgans. Let me just 10 talk a little bit about where we are. Let's see, we're 11 going to send Ms. Brandes to Hawaii, then we're going to 12 come back here on Tuesday. And this panel will appear 13 without Ms. Brandes for cross-examination by 14 Mr. Birmingham; is that correct? 15 MR. BIRMINGHAM: Mr. Chairman? 16 C.O. CAFFREY: Yes, sir. 17 MR. BIRMINGHAM: I don't want to bring this panel 18 back for the 20 minutes of the cross-examination that I'm 19 going to have. So I will withdraw my request to 20 cross-examine them. 21 C.O. CAFFREY: Well, I'm sorry that you feel the need 22 to do that. We're a little jammed for time today. You, 23 certainly, have the right to do it, Mr. Birmingham. 24 MR. BIRMINGHAM: I appreciate that, but the questions 25 that I'm going to ask are not that compelling. And so -- CAPITOL REPORTERS (916) 923-5447 1255 1 C.O. CAFFREY: That's a switch. 2 MR. O'LAUGHLIN: They always are. 3 MR. BIRMINGHAM: So I'll just withdraw my request and 4 this panel can be excused. 5 C.O. CAFFREY: All right. Thank you, sir. In that 6 event, we may have some questions from the staff. 7 MS. LEIDIGH: Yes. 8 C.O. CAFFREY: Because we are now dismissing the 9 panel. And I believe they have some. Mr. Howard? 10 MR. HOWARD: I have three questions. It will 11 probably take less than three minutes. 12 C.O. CAFFREY: All right. Go ahead, sir. 13 THE COURT REPORTER: I need to change my tape. 14 (Off the record.) 15 C.O. CAFFREY: All right. We're back on the record. 16 Mr. Howard. 17 ---oOo--- 18 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 19 BY STAFF 20 MR. HOWARD: Dr. Hanson, you testified that the VAMP 21 test conditions, that the temperature conditions should be 22 less than 68 degrees Fahrenheit. Is 68 degrees Fahrenheit 23 the threshold that would stress the mortality of San 24 Joaquin River fall-run chinook salmon occurs, or is the 25 threshold at a lower temperature? CAPITOL REPORTERS (916) 923-5447 1256 1 DR. HANSON: The temperature that we put into the 2 attachment, the experimental design, is largely a guideline 3 temperature. Stress occurs over a wide range of flows -- 4 or wide range of temperatures. It's influenced by the 5 general condition of the fish. It's influenced by a 6 variety of other water quality constituents. It's 7 influenced by the food available for the fish. 8 So a particular temperature should not be viewed 9 as a specific threshold, but rather it's a guideline for us 10 to establish when -- or what temperatures above which we 11 would have substantial concerns. That temperature may be a 12 bias or an interfering element in our flow versus export 13 experiment. 14 MR. HOWARD: Is there a lower temperature, a 15 threshold temperature for stress for mortality of fall-run 16 chinook that you're aware of? 17 DR. HANSON: There's been studies that have shown 18 that at temperatures, for example, in 65-degree range that 19 disease resistance for some stocks, particularly under 20 hatchery, may be -- they may be more prone or susceptible 21 to epidemic disease. So there's a range of physiological 22 responses and biochemical responses that occur at 23 temperatures starting at about 60 degrees and going up. 24 MR. HOWARD: Do the other panel members concur with 25 Dr. Hanson's characterization of the threshold levels? CAPITOL REPORTERS (916) 923-5447 1257 1 DR. MORHARDT: I would agree that 68 is a reasonable 2 rule-of-thumb threshold for these kinds of experiments. 3 DR. KJELSON: I would concur with both those 4 comments. 5 MS. BRANDES: And I would agree that it would cause 6 stress at 65 and on up. And I don't think there's a lot of 7 concern with temperatures below 65 for these types of 8 experiments. 9 DR. LOUDERMILK: And I agree with that as well and 10 Chuck's characterization that it's -- it's not really a 11 threshold, 68 is not a threshold. That it's sort of a goal 12 or target. And what I would envision occurring would be 13 that in the event we are in a VAMP test year and the 14 temperatures were within that 68-degree range that those of 15 us that would be directly involved in the study plan in 16 making the final decision to proceed or not would make a 17 judgment call. But at that time the study fish would 18 already be tagged, be ready, be allocated. But that 19 decision would be a case-by-case decision and that's what 20 the technical group is all about. 21 MR. HOWARD: All right. Thank you. Dr. Hanson, you 22 testified that the upper range of the VAMP Vernalis flow 23 was set at 7,000 csf, because this is the upper limit for 24 flows that can exist when the Old River barrier is closed. 25 When you refer to that as the "upper limit," is CAPITOL REPORTERS (916) 923-5447 1258 1 that the upper limit for a permanent or a temporary barrier 2 and is there a difference between the two? 3 DR. HANSON: I'm not a real expert on the design of 4 the various barrier alternatives. That was -- the figure 5 between 7,000 and 7500 was the flow figure that was 6 provided to us by the Department of Water Resources's 7 engineers involved with the barrier design. And I believe 8 that it was more relevant to the temporary barrier. 9 MR. HOWARD: Thank you. This next question is for 10 Dr. Kjelson. I'm going to refer to a State Water Board 11 exhibit here, specifically Exhibit 1-D which is in Volume 4 12 of the Draft EIR that was prepared for this proceeding, 13 page 6-3. 14 This exhibit shows that the average flows at 15 Vernalis over the 73-year average and the critically dry 16 period of 1928 to '34 are higher than the VAMP than for the 17 1995 plan. Specifically, alternatives 2, 3, 4 and 6 18 represent plan flows; and alternative 8 represents the VAMP 19 flows. And that table will show that the flows over both 20 the 73-year average and the critically dry period are 21 higher for the VAMP than for the plan. 22 Does that result support your determination that 23 the plan and VAMP provide equivalent protection? 24 DR. KJELSON: Yes. I haven't look at this in detail 25 but, yes, in general I think that would be the conclusion CAPITOL REPORTERS (916) 923-5447 1259 1 that I would draw. 2 MR. HOWARD: Okay. Thank you. That was all. 3 C.O. CAFFREY: Any other questions from any other 4 staff members? Anything from you, Mr. Pettit, or from any 5 other Board Members? 6 MR. PETTIT: No, Mr. Chairman. 7 MEMBER BROWN: No. 8 C.O. CAFFREY: All right. Mr. O'Laughlin, did you 9 want to add something? We recognize that you may or may 10 not want to bring this panel back depending on whether you 11 want to offer redirect. 12 MR. O'LAUGHLIN: That would be the only thing I would 13 say, Mr. Chairman. And if we do not bring them back, we 14 will be prepared to go forward on next Tuesday with 15 Mr. Van Camp, if we do not bring this panel back. 16 C.O. CAFFREY: Mr. Birmingham? 17 MR. BIRMINGHAM: If Mr. O'Laughlin does bring this 18 panel back, or if he commences his redirect I would ask for 19 leave to conduct the cross-examination that I was, 20 otherwise, was going to conduct. 21 C.O. CAFFREY: We will hold that option open for you, 22 sir. 23 MR. BIRMINGHAM: Thank you. 24 MR. CAMPBELL: One comment, in the event that 25 Mr. O'Laughlin does not bring the panel back, on Tuesday CAPITOL REPORTERS (916) 923-5447 1260 1 morning will we have an opportunity to offer our exhibits 2 into evidence at that time? 3 MR. O'LAUGHLIN: I'm assuming that we will do that at 4 that time. 5 C.O. CAFFREY: Yes, sir. 6 MR. O'LAUGHLIN: We didn't have that discussion. 7 C.O. CAFFREY: Let me review that for a moment. Were 8 we going to wait until the presentation of the entire case 9 until we -- 10 MS. LEIDIGH: That's our normal. 11 C.O. CAFFREY: -- accept all the evidentiary 12 exhibits? That's what we have been doing. We will wait 13 until the whole thing and at the end we will accept them, 14 or consider accepting them. 15 MR. O'LAUGHLIN: Thank you, Mr. Chairman. 16 MR. CAMPBELL: Even if a party is not participating 17 in the other pieces of this, in this case the Department of 18 Fish and Game, would you still like us to wait until the 19 end of the entire case in chief to do that? 20 C.O. CAFFREY: That's generally what we had been 21 doing. So that would be the preference. Does that create 22 a problem for anybody? 23 MR. O'LAUGHLIN: That's fine. 24 MR. CAMPBELL: No. 25 C.O. CAFFREY: That's what we will do. All right, CAPITOL REPORTERS (916) 923-5447 1261 1 then, we'll be back in this room, this room seems to be 2 accommodating us. We'll be back in this room next Tuesday 3 which is what date? If it matters, we'll see you then. 4 (The proceedings concluded at 4:48 p.m.) 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 1262 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 1003 through 1263 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 1st day of 14 August, 1998. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1263