STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT THE BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, JULY 29, 1998 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JOHN CAFFREY, CO-HEARING OFFICER JAMES STUBCHAER, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 JOHN W. BROWN 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer 9 VICTORIA A. WHITNEY - Senior Engineer 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel 12 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1489 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 1490 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 1491 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 1492 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 1493 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 1494 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 1495 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 1496 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 1497 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 1498 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 1499 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 CATHY CROTHERS and DAVID A. SANDINO, ESQ. 8 P.O. Box 942836 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 11 575 East Alluvial, Suite 101 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 14 400 Captiol Mall, 27th Floor Sacramento, California 95814 15 BY: CLIFFORD W. SCHULZ, ESQ. 16 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 17 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 18 Oroville, California 95965 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE 21 P.O. Box 20 Stockton, California 95203 22 BY: THOMAS J. SHEPHARD, SR., ESQ. 23 24 25 CAPITOL REPORTERS (916) 923-5447 1500 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 1501 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 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 1502 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 1505 6 AFTERNOON SESSION 1599 7 END OF PROCEEDINGS 1691 8 9 DIRECT TESTIMONY OF SAN JOAQUIN RIVER GROUP AUTHORITY: 10 ERICSON JOHN LIST 1521 11 12 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY: 13 SOUTH DELTA WATER AGENCY 1530 REGIONAL COUNCIL OF RURAL COUNTIES 1539 14 BY THE BOARD 1551 15 REDIRECT EXAMINATION: 16 SAN JOAQUIN RIVER GROUP AUTHORITY 1552 17 18 FURTHER RECROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP: 19 CENTRAL DELTA PARTIES 1555 ENVIRONMENTAL DEFENSE FUND 1557 20 REGIONAL COUNCIL OF RURAL COUNTIES 1581 SAVE THE SAN FRANCISCO BAY ASSOCIATION 1599 21 BY STAFF 1611 BY THE BOARD 1616 22 23 DIRECT TESTIMONY OF THE DEPARTMENT OF THE INTERIOR: 24 JOHN BURKE 1619 25 CAPITOL REPORTERS (916) 923-5447 1503 1 INDEX (Cont'd.) 2 3 CROSS-EXAMINATION OF THE DEPARTMENT OF INTERIOR: 4 TUOLUMNE UTILITIES DISTRICT 1630 REGIONAL COUNCIL OF RURAL COUNTIES 1633 5 CENTRAL DELTA PARTIES 1640 BY STAFF 1651 6 BY BOARD 1656 7 DIRECT TESTIMONY BY SAN JOAQUIN RIVER GROUP AUTHORITY: 8 ROSS ROGERS 1665 9 10 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY: 11 SAN LUIS DELTA-MENDOTA WATER AUTHORITY 1669 SOUTH DELTA WATER AGENCY 1670 12 13 ---oOo--- 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1504 1 WEDNESDAY, JULY 29, 1998, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Now, we are on the record. Before we 5 get started I wanted to get some discussion going. Our 6 counsel, Ms. Leidigh, heard last night that there may be 7 some changes of plans in the works about how many cases in 8 chief are going to be presented in Phase II. And, perhaps, 9 how much of a case in chief is going to be presented by the 10 San Joaquin River Group Authority. 11 Does anybody have any new intelligence to offer in 12 terms of what the Board can expect in its schedule? 13 MR. O'LAUGHLIN: Do you want to go, Dan, or do you 14 want me to go? 15 C.O. CAFFREY: Good morning, Mr. O'Laughlin. 16 MR. O'LAUGHLIN: Good morning, Mr. Caffrey. 17 Tim O'Laughlin representing the San Joaquin River Group 18 Authority and the signatories to the San Joaquin River 19 Agreement. My expectation is to have Mr. List testify. 20 Hopefully, finish Mr. List this morning. Bring Mr. Steiner 21 on for cross-examination and redirect and, hopefully, 22 finish Mr. Steiner today. At that point we would rest our 23 affirmative case and be completed. 24 C.O. CAFFREY: All right. 25 MR. O'LAUGHLIN: My understanding as well is that in CAPITOL REPORTERS (916) 923-5447 1505 1 a discussion with Mr. Dan Gallery representing Tuolumne 2 Utilities District last night is that Mr. Gallery will not 3 be presenting an affirmative in case two -- I mean, in 4 Phase II, excuse me, but will be presenting that case in 5 Phase II-A. 6 C.O. CAFFREY: All right. Using your terminology of 7 "affirmative case" is that -- 8 MR. O'LAUGHLIN: Case in chief. 9 C.O. CAFFREY: -- synonymous with our case in chief? 10 MR. O'LAUGHLIN: Case in chief, yes. 11 C.O. CAFFREY: I understand, Mr. O'Laughlin. Is that 12 a correct representation, Mr. Gallery? 13 MR. GALLERY: Yes, that's correct, Mr. Chairman. We 14 had planned on putting our case in chief on in Phase II. 15 It was based in part on the expectation that Mr. Ploss 16 would testify for the Bureau, but that plan changed. And 17 for that reason and for a couple of other reasons we 18 decided to wait to put our case in chief on in Phase II-A. 19 C.O. CAFFREY: All right. Thank you, sir. We'll 20 make that notation. Mr. Herrick? 21 MR. HERRICK: I thought we were assured on numerous 22 occasions that Mr. Ploss would give testimony in this 23 phase. I thought we had those conversations in Phase I and 24 in the beginning of Phase II, et cetera. 25 C.O. CAFFREY: Is that at issue? CAPITOL REPORTERS (916) 923-5447 1506 1 MR. O'LAUGHLIN: Well, no, it's not at issue 2 because -- the Solicitor is behind me, but -- 3 MR. NOMELLINI: That's comforting. 4 MR. O'LAUGHLIN: Yes. 5 C.O. CAFFREY: And the barrister is at the podium. 6 MR. O'LAUGHLIN: Yes. Here's the understanding, we 7 did tell this Board and the parties that Mr. Ploss would be 8 present. Prior to the decision being made on the phasing 9 of II and II-A, Mr. Ploss's testimony, in our minds, in 10 regards to the San Joaquin River Group Authority and the 11 signatories as well as the Department of Interior almost 12 goes entirely, if not all, to II-A questions. 13 It has little or nothing to do with equivalency, 14 in our minds. So we are not planning on calling Mr. Ploss 15 in Phase II. He will, however, be called in II-A. So if 16 there's questions that want to be asked of Mr. Ploss, they 17 can wait for II-A. 18 C.O. CAFFREY: Go ahead. 19 MR. BRANDT: Alf Brandt, Department of Interior. 20 Actually, part of this is in reaction to Mr. Herrick's 21 decision not to put on a case in chief either in II-A -- 22 I'm sorry, in II. And that was part of the decision, was 23 since he wasn't putting on -- he was going to wait until 24 II-A, it made sense that this testimony was something that 25 he was interested in as well, it made sense to put it on at CAPITOL REPORTERS (916) 923-5447 1507 1 that point and, actually, anticipate some of the questions 2 that he would be asking as well. That is part of the 3 reasoning for us, too. 4 C.O. CAFFREY: All right. Let me ask another 5 question here, because I haven't heard this morning from, I 6 believe, three other parties that had indicated that they 7 wanted to put on cases in chief in Phase II. I still have 8 on the list the Environmental Defense Fund, Stockton East 9 Water District, and City of Antioch, City of Pittsburg, and 10 Diablo Water District those three being represented by 11 Frederick Bold. 12 Anybody have any comment? 13 MR. O'LAUGHLIN: EDF is here. 14 C.O. CAFFREY: Mr. Suyeyasu? 15 MR. SUYEYASU: We will be putting on a case in chief. 16 C.O. CAFFREY: You will still be putting on a case in 17 chief. 18 MR. O'LAUGHLIN: I do not represent Stockton East 19 Water District, as you know, Mr. Caffrey. However, I have 20 had numerous discussions with their counsel, 21 Jeanne Zolezzi. My understanding of those discussions is 22 that Stockton East Water District will not put on their 23 case -- 24 C.O. CAFFREY: Will now, or not? 25 MR. O'LAUGHLIN: No, will not put on their case now CAPITOL REPORTERS (916) 923-5447 1508 1 in Phase II, but will put that case on in Phase II-A. 2 C.O. CAFFREY: All right. 3 MR. O'LAUGHLIN: And I have not -- I have not heard 4 from the City of Antioch or Pittsburg as to any case in 5 chief that they will be putting on in this phase. 6 C.O. CAFFREY: Well, if they don't show up soon it 7 will be fiat accompli. Ms. Leidigh? 8 MS. LEIDIGH: I think I can comment on that. I've 9 had a conversation with Mr. Bold and I don't believe he 10 plans on putting his case in chief on in Phase II. It will 11 be a later phase and we're not sure when. 12 C.O. CAFFREY: We'll look for Mr. Bold in a later 13 phase. And it looks like we will probably look for 14 Stockton East Water District in a later phase. Time out 15 for just a minute. 16 (Off the record from 9:11 a.m. to 9:12 a.m.) 17 C.O. CAFFREY: Back on the record. Mr. Herrick, did 18 you want to address the Board, please, sir? 19 MR. HERRICK: I would just like to inquire if 20 Mr. Ploss is available as a rebuttal witness in this phase. 21 And also, I guess, a confirmation that if we don't put on a 22 case in chief, we can still put on rebuttal witnesses; is 23 that correct? 24 MS. LEIDIGH: Yeah. 25 C.O. CAFFREY: Yes. That is correct. CAPITOL REPORTERS (916) 923-5447 1509 1 MR. HERRICK: Is Mr. Ploss going to be available? 2 C.O. CAFFREY: Is Mr. Ploss available if he's called 3 by parties in this phase as a rebuttal witness, or as a 4 witness in somebody's case in chief? 5 MR. BRANDT: As I requested several times, I would 6 appreciate getting a request and getting some notice. When 7 are we talking about doing that? 8 MR. HERRICK: Talking today. 9 MR. BRANDT: I don't think he's planning on being 10 here today. So, if I'm just getting this today -- 11 C.O. CAFFREY: I understand that. Let's deal with 12 the overall question, because I want to know if we're 13 dealing with matters of practicality, or matters of legal 14 theory. Of course, if Mr. Ploss hasn't been told in 15 advance that he needs to appear and he can't come here 16 today, we will, obviously, accommodate that. 17 MR. BRANDT: Right. 18 C.O. CAFFREY: But what I want to know is that if 19 some party righteously needs some relevant factual 20 information on the record from Mr. Ploss in Phase II, you 21 being given all the due notice, what have you, to 22 convenience him and you legally, would you make him 23 available? 24 MR. BRANDT: We would make him available. But he's 25 not planning on being here today as I understand it. So CAPITOL REPORTERS (916) 923-5447 1510 1 that's why we would not be ready to do it today. 2 C.O. CAFFREY: That does not cause me any 3 consternation at all, but I wanted to get that on the 4 record. Ms. Forster has a question. 5 MEMBER FORSTER: I have a question out of curiosity: 6 Where is he located? 7 MR. BRANDT: He's located in Sacramento. He's 8 located over at CV -- Central Valley Operations. Although, 9 I'm not sure if he's there today, or at a meeting somewhere 10 else today. I need to check on that. But physically he 11 works over on Cottage Way, what, five, ten miles -- Camino 12 and Watt, excuse me. 13 C.O. CAFFREY: Thank you, Mr. Brandt. Mr. Jackson? 14 MR. JACKSON: Yes. Is the government withdrawing all 15 of its written evidence filed by anybody who didn't -- who 16 isn't testifying in Phase II? 17 MR. BRANDT: We are not withdrawing it. We are 18 waiting -- we are going to put that in. It's just going to 19 be delayed until later. So it's not -- 20 MR. JACKSON: It will not be considered? 21 MR. BRANDT: Correct, it is not being introduced as 22 part of Phase II. 23 MR. JACKSON: And will not be considered by the Board 24 on their decision on equivalency? 25 MR. BRANDT: It's not in evidence. CAPITOL REPORTERS (916) 923-5447 1511 1 MR. JACKSON: Right. 2 C.O. CAFFREY: Did you get an answer to your 3 question? 4 MR. JACKSON: I think I did, but I want to be sure I 5 did. The point is that if the Government wants to withdraw 6 its witnesses, then, its written evidence cannot come in in 7 regards to equivalency. U.S. Fish and Wildlife Service did 8 testify, but if this is how we're going to do it, that's 9 fine, but it can't be considered in equivalency. 10 C.O. CAFFREY: Did Mr. Brandt -- I don't want to put 11 words in your mouth, did you indicate that you're now 12 withdrawing your evidence? 13 MR. BRANDT: We're not withdrawing it, but we are 14 planning -- it's not in at this point. We are not putting 15 it in at this point. We're putting it in for later. 16 C.O. CAFFREY: Ms. Leidigh? 17 MS. LEIDIGH: Yes, I have some clarification 18 questions. You put on some witnesses in Phase II. They 19 refer to exhibits and they testified. Are you saying that 20 you are not going to offer those exhibits that they 21 referred to in evidence during Phase II? 22 MR. BRANDT: No. Excuse me, let me clarify. Let me 23 be specific about what we're talking about. For the 24 testimony of Tricia Brandes and for the testimony of 25 Marty Kjelson and Bruce Herbold, those three are ones we CAPITOL REPORTERS (916) 923-5447 1512 1 did put in, brought the witnesses, they were 2 cross-examined, so those we are putting in. I was, 3 actually, more focused on Ploss, Lowell Ploss. Since that 4 is what we were talking about. And I think that's what you 5 were raising; is that correct? 6 MR. JACKSON: Yes. I have no objection to the 7 equivalency evidence where the witnesses were able to be 8 cross-examined. But I, certainly, would not want to see 9 anything considered in which the witnesses are not 10 produced. 11 MR. BRANDT: And there are two of those. There's 12 John Burke and there's Lowell Ploss. 13 C.O. CAFFREY: All right. We may have some confusion 14 up here. First of all, I want to just point out that we -- 15 if anybody wishes to call Mr. Ploss in the near future, you 16 need to let Mr. Brandt know as soon as possible. At the 17 same time, I would hope that Mr. Brandt, in the spirit of 18 trying to keep this process going on an even keel, wouldn't 19 bind us by the ten-day technicality and required subpoenas 20 and all that. 21 That would be helpful if we didn't have to go 22 through all of that, because if somebody decides that they 23 need to bring in Mr. Ploss, say, as a rebuttal witness 24 based on something they heard in cross or recross, which is 25 their right, then, that could stifle this process for some CAPITOL REPORTERS (916) 923-5447 1513 1 time. I mean, obviously, we would give you a day or 2 whatever it is to get him. We hope we're still in that 3 spirit, the spirit which we thought we were in at the 4 beginning of this process when we had this colloquy before, 5 Mr. Brandt. 6 MR. BRANDT: Yes. In that spirit we will try. But 7 let me just say, we do need a request specifying what the 8 topics are that he's going to be testifying on, because 9 it's pursuant to our regulations. We have to do this and 10 we have to take it through a process with the agencies to 11 make sure that that's the person that has that information. 12 C.O. CAFFREY: Okay. 13 MR. BRANDT: Because, often, people may assume that 14 Lowell Ploss is the one, but it may be someone else that 15 has the information that they are looking for. So we need 16 a request to specify what it is that they need. 17 C.O. CAFFREY: I appreciate that. And I just want to 18 point out to everybody, to the extent that that occurs in 19 any of these phases, the phase does not close until that 20 process has been gone through and people have been given 21 their full due process. 22 MR. BRANDT: Okay. I have not received any request 23 at this point. 24 C.O. CAFFREY: I, certainly, wasn't implying that you 25 were withholding anything. CAPITOL REPORTERS (916) 923-5447 1514 1 MR. HERRICK: You know, I'm not trying to hide the 2 ball here. We started this with my request originally. I 3 assumed based on previous statements that he would be in 4 this phase. That's why I haven't given you some notice to 5 bring him in. I have previously provided a letter dealing 6 with the areas of questions and so that has been done 7 already. 8 MR. BRANDT: And that letter, those questions are all 9 related to Phase II-A. 10 C.O. CAFFREY: So are you satisfied -- I'm sorry, 11 Mr. Herrick, I wasn't sure I grasped all of that. Are you 12 satisfied? 13 MR. HERRICK: If he's available to come in, yes. And 14 I believe the letter that I -- 15 C.O. CAFFREY: Come in when? 16 MR. HERRICK: Tomorrow is fine. It's when rebuttal 17 cases would start. 18 C.O. CAFFREY: So you're planning on calling 19 Mr. Ploss as a rebuttal witness? 20 MR. HERRICK: I believe so. 21 C.O. CAFFREY: All right. That's the first time that 22 I actually completely appreciated and understood that. The 23 question becomes: When is he going to be available as a 24 rebuttal witness under your process, Mr. Brandt, assuming 25 Mr. Herrick gives you written notice today? CAPITOL REPORTERS (916) 923-5447 1515 1 MR. BRANDT: Right. The topics that -- actually, 2 Mr. Herrick has given us notice, but it does not specify 3 the phases or anything along those lines. But he did 4 specify -- 5 MR. HERRICK: It was before we had a II-A. 6 MR. BRANDT: Right, it was before we had II-A at that 7 point. But, anyway, we did not specify the phases. And so 8 the questions were ones that relate to II-A. And since he 9 had decided to put off his case in chief until II-A, we 10 didn't have any other request, or understanding that we 11 were suppose to produce him for those questions on that one 12 since he wasn't doing a case. 13 C.O. CAFFREY: Can you make him available tomorrow? 14 MR. BRANDT: I need to check, Mr. Chairman. I need 15 to check and see what his plans are, whether he is -- what 16 his travel plans are. 17 C.O. CAFFREY: If you can't, I would say we have to 18 hold Phase II open until such time as you can produce the 19 witness. Ms. Forster? 20 MEMBER FORSTER: I have to say something, Mr. Brandt. 21 MR. BRANDT: Yes, Ms. Forster. 22 MEMBER FORSTER: When we started this out you just 23 jumped over to Phase II-A. I mean, when these issues were 24 brought up, he was asked to be here for Phase II. Now, 25 you're all into Phase II-A and this Board hasn't even said CAPITOL REPORTERS (916) 923-5447 1516 1 we're going to do Phase II-A. 2 And I think that's interesting that you just all 3 took this giant leap. I understand, I'm pretty sure you 4 must have all assumed it's necessary. But that's 5 interesting to offer. We went through all of that debate 6 the first couple of days, to offer this man to be in this 7 phase and now to designate he will be here for Phase II-A, 8 that doesn't sit very well with me. 9 MR. BRANDT: I understand. I think it was our 10 judgment -- there was a risk, please, understand. There is 11 a risk on our side that there may not be a II-A. Because 12 when we look at his testimony it's about that later 13 question. It's not about equivalency. And so it's a 14 risk -- you're right, there's a risk that we may never get 15 him on and we may never get his testimony in if you decide 16 not to call a II-A. 17 And, then, we lose the San Joaquin River Agreement 18 and that was a judgment we made. But it was a judgment we 19 made based on a variety of factors, weighing the risks. So 20 when we look at that testimony it's really more about II-A, 21 especially with Mr. Herrick deciding to go until II-A -- 22 MEMBER FORSTER: I just wanted to make sure that all 23 the parties feel that they have complete satisfaction in 24 each phase. And so it's important to me to know that their 25 expectations are met when we set out on a program. And I'm CAPITOL REPORTERS (916) 923-5447 1517 1 not going to say anything more, because this is very 2 complex. I just want all parties to feel very satisfied. 3 MR. BRANDT: I understand. And I would encourage all 4 parties to communicate with me the best they can to give me 5 as much notice as possible. 6 MEMBER BROWN: Mr. Chairman? 7 C.O. CAFFREY: Mr. Brown has a comment. 8 MEMBER BROWN: I share some of the same concerns as 9 Ms. Forster. Perhaps, if you would check now if Mr. Ploss 10 is available tomorrow, then, the issue would become moot. 11 MR. BRANDT: Okay. I will do that shortly. 12 C.O. CAFFREY: Well, I guess this has been a good 13 exercise, because I, certainly, welcome the comments of the 14 other Board Members. And remind everybody that it's the 15 job of the Hearing Officer to garner the record and do the 16 best job he or she can to make rulings, but there are five 17 people that are going to vote on whatever orders that the 18 Board comes up with. So you need to keep all of that in 19 mind. And a couple of Board Members here have expressed 20 their consternation about this and I would like to add 21 mine. 22 But I'm confident that we will have the 23 cooperation of the Bureau and that we can proceed, because 24 due process is critical around here. And I know all the 25 lawyers in the room know that. If this Board decides CAPITOL REPORTERS (916) 923-5447 1518 1 something that's challenged on the basis of procedure, 2 everybody knows that that's the primary reason that the 3 courts send things back to this Board, procedural error. 4 So all of us should keep that in mind. 5 All right. Anything else that we need to discuss 6 on this matter? 7 MEMBER FORSTER: No. 8 C.O. CAFFREY: All right. Thank you fellow Board 9 Members for your commentary. Mr. O'Laughlin, you wish to 10 begin with this witness? 11 MR. O'LAUGHLIN: If I may, Chairman Caffrey, there's 12 one small procedural matter that's come up. And I've been 13 thinking about this for the last week or so and we should 14 discuss it and then have the Board and the Board staff 15 think about this. 16 The transcripts in this case are coming out two to 17 three weeks after the dates upon which the testimony is 18 being given. You're -- so in Phase I when we finished, the 19 transcript would be out two to three weeks later. And, 20 then, the Board was very gracious in giving us a four-week 21 period to draft closing argument. 22 The problem that's coming up, however, and I can 23 see this -- Phase I was pretty short. Phase II is a little 24 bit longer. I don't know what the other phases are. You 25 might -- the Board and the Board staff might want to think CAPITOL REPORTERS (916) 923-5447 1519 1 about how closing arguments are going to be structured in 2 the future given the time limitations on the transcripts 3 coming out from the Court Reporter's office. 4 C.O. CAFFREY: Are you suggesting maybe we should 5 have oral agreements with some shorter time to prepare them 6 as an option? 7 MR. O'LAUGHLIN: That might be an option. The only 8 thing I'm worried about is in regards to the transcripts, I 9 don't want to pay for an expedited transcript fee to get 10 transcripts out in time, or we can have the briefing 11 schedule five weeks instead of four weeks. I don't know 12 what the response is, but given that if the transcripts 13 aren't coming out until three weeks after and briefs are 14 due on the fourth week and we're still here trying to work, 15 then trying to cite to the record it makes it very 16 difficult when we don't have a transcript in front of us. 17 C.O. CAFFREY: Well, I think that's a good point. 18 We'll see what we can do about the transcripts, find out as 19 a housekeeping matter, what can or cannot be done. And we 20 may have to accommodate by an extension of briefing times. 21 Although, that also adds time, I mean everybody is anxious 22 for the Board to, perhaps, make -- let me back up. 23 We've talked about the possibility of future 24 workshops to see if the Board gets to II-A and gets through 25 it. Let's say hypothetically, say it wants to do some kind CAPITOL REPORTERS (916) 923-5447 1520 1 of a phased decision, which nobody is sure is possible yet; 2 all of that is controlled to some degree, whether or not we 3 do that, is controlled to some degree by how long these 4 individual processes within the phases take. 5 MR. O'LAUGHLIN: Right. 6 C.O. CAFFREY: So the more time we add, the longer it 7 takes. So we will take your concern under advisement, it's 8 a good one and we'll see what we can do about it. 9 MR. O'LAUGHLIN: I don't think there's a problem for 10 Phase I. Just given the depth of testimony that's taken 11 place in Phase II, we might run into a time constraint. 12 Yes, today on behalf of San Joaquin River Group 13 I'd like to offer Dr. John List as a witness. Is my time 14 already up? 15 C.O. CAFFREY: Your time is up. 16 MR. O'LAUGHLIN: We're done. We rest. 17 C.O. CAFFREY: Sorry about that. This is a Radio 18 Shack special with both analog and digital combined. So it 19 has its moments. All right. Let's start again. 20 ---oOo--- 21 DIRECT TESTIMONY OF SAN JOAQUIN RIVER GROUP AUTHORITY 22 OF DR. ERICSON JOHN LIST 23 BY TIM O'LAUGHLIN 24 MR. O'LAUGHLIN: Mr. -- Dr. List, we've offered as 25 San Joaquin River Group Authority Exhibit Number 12, the CAPITOL REPORTERS (916) 923-5447 1521 1 qualifications of you. Are those a true and correct C.V. 2 of -- for you? 3 DR. LIST: That's correct. 4 MR. O'LAUGHLIN: Have you been sworn yet? 5 DR. LIST: Not in this hearing. 6 MR. O'LAUGHLIN: Well, you're going to have to stand 7 up and the Hearing Officer will swear you and then we'll go 8 back. 9 C.O. CAFFREY: Do you promise to tell the truth in 10 these proceedings? 11 THE WITNESS: I do. 12 C.O. CAFFREY: Thank you, sir. You may be seated. 13 And you may now testify. 14 MR. O'LAUGHLIN: Well, let's go back and ask that 15 question again. San Joaquin River Group Authority Exhibit 16 Number 12 are the statements of qualifications of 17 Dr. John List. Are those your true and correct statement 18 of qualifications, Dr. List? 19 DR. LIST: They are. 20 MR. O'LAUGHLIN: Also, that's been offered for -- is 21 your written testimony, Dr. List, on Delta hydraulics, 22 which is San Joaquin River Group Authority Exhibit 16. Is 23 that a true and correct copy of your testimony, Dr. List? 24 DR. LIST: That's correct. 25 MR. O'LAUGHLIN: And, in fact, you signed that under CAPITOL REPORTERS (916) 923-5447 1522 1 penalty of perjury; is that correct? 2 DR. LIST: Correct. 3 MR. O'LAUGHLIN: And you prepared that testimony? 4 DR. LIST: Yes. 5 MR. O'LAUGHLIN: If you could, could you briefly 6 summarize for the Board your work experience, the 7 Fischer-Delta Model, and the written testimony that you 8 have prepared for the Board hearing here today? 9 DR. LIST: Yes. I've appeared before this Board on 10 several occasions. My name is Ericson John List. I'm a 11 professor at the California Institute of Technology. I'm 12 now a consulting engineer, I'm a registered civil engineer 13 in the State of California. 14 I've worked on the Delta issues for the past 18 15 years, primarily concerned with the modeling, the 16 hydrodynamics and the transport of salinity throughout the 17 Delta. I co-authored a book called Mixing_in_Inland_and ______ __ ______ ___ 18 Coastal_Waters, which is widely used throughout the world _______ ______ 19 to decide mixing and transfer processes in water bodies. 20 I'm here today to describe some of the hydrodynamic 21 problems, problems/issues associated with the San Joaquin 22 River Group. 23 What I'd like to do is to start out by just 24 reminding the Board that the Fischer-Delta Model which has 25 appeared in many versions before you, it's now in its CAPITOL REPORTERS (916) 923-5447 1523 1 version ten. And if I could put up the first slide. 2 Remind the Board that the Fischer-Delta Model is actually a 3 mathematical model. It represents all of the channels in 4 the Delta, 146 of these channels. 5 C.O. CAFFREY: Professor List, could you identify 6 that for the record if it is an exhibit? 7 DR. LIST: It's Exhibit Figure 51, I believe. And 8 its not quite in focus. So the Delta is represented by 9 these interconnected channels in this, mathematical 10 representations of the flow of water and the transport of 11 salt within these channels within the Delta. The model has 12 been calibrated. And what I'd like to do first is show you 13 some calibrations corresponding to the period in the late 14 1980's, because I think it's important to understand the 15 Delta has changed from the late 1980's to the present time. 16 MR. O'LAUGHLIN: Identify the figure. 17 DR. LIST: This is Figure 10 in Exhibit 15, I 18 believe. 19 MR. O'LAUGHLIN: 14. 20 DR. LIST: Exhibit 14. And the representation here 21 is the flow as measured in Middle River and Bacon Island, 22 shown by the dots and the lines of the models. And the 23 purpose of showing you this exhibit, this figure is to show 24 you that the model is very quite capable of representing 25 what goes on in the Delta. And I'm going to show you a CAPITOL REPORTERS (916) 923-5447 1524 1 couple of figures here. And you see that it tracks the 2 flow of water in the Middle River and Bacon Island quite 3 well in August of 1988. 4 And as we go down the bottom, what we do in the 5 bottom figure is we plot on one axis the measured flow, on 6 the other axis the model flow. And you can see there's a 7 little bit of scatter around the straight line. The 8 straight line -- if the model were perfect, all of the dots 9 would line on the straight line. The model is not really 10 perfect, and because there are some things that aren't 11 capable of being model exactly, but by-and-large it's a 12 comparative representation. 13 If I could have the next figure. This is Figure 9 14 from Exhibit 14, I believe. And this shows you a similar 15 measurement at Old River near Santa Fe Cut. And you see, 16 again, that the flow in the Delta is really modeled very 17 well over this period. Now, what I want to do is to skip 18 to some -- 1997. And what we're going to show here is 19 measured in model flows in Old River near Clifton Court, 20 and this is Figure 3 of Exhibit 14. 21 And the purple and black wiggly lines represent 22 the hourly flow rate as measured by the U.S. Geological 23 Survey in its model. And you can see that there's fairly 24 close compliance. However, if we take an average, a daily 25 average of these measured flow rate, you see there's a CAPITOL REPORTERS (916) 923-5447 1525 1 slight discrepancy between the model and -- which is the 2 green line and the black, which is actually the daily 3 average of the -- of the measured flow. 4 And we ascribe this difference in flow to the fact 5 that in the new year of 1997 there was a substantial 6 flooding in the Delta. And the channels have changed. The 7 channel geometries have changed. They have not been 8 resurveyed since the flood. And it's not really possible 9 to get a better model compliance at this point without a 10 resurvey of the channel geometry as a consequence to the 11 flow. 12 If I can show the next, this is measured and model 13 flow rates in Victoria Canal. And this is Figure 6 of 14 Exhibit 14. And you see the compliance between the model 15 and the flow rate is really quite good, even on a daily 16 average and even on the hourly flows. And, finally, I 17 would show the similar measurements in Grant Line Canal. 18 And you see the jog in the profile it corresponds to the 19 change in barriers. 20 Could you point to that little jog on the line? 21 We received from the Department of Water Resources the 22 information about when they had taken the barrier -- 23 changed the barrier. And, in fact, they were about four 24 days out. It took about four days. And so the model 25 actually tracks this change in this barrier in the canal, CAPITOL REPORTERS (916) 923-5447 1526 1 the Grant Line Canal quite well. You can see the barrier 2 went in in the Grant Line Canal and the net affect of that 3 is to reduce the flow significantly in the Grant Line Canal 4 at that particular time. The model tracks that quite well. 5 That's Figure 8 of Exhibit 14. 6 Now, at that basis, what I'd like to do now is to 7 jump and actually apply this model, which I think you would 8 agree appears to track the flows in the Delta quite well, 9 to apply it to the impact of putting the head of Old River 10 barrier in place. And the first thing we're going to do is 11 show you the period, wet year in 19 -- this is Figure 20 of 12 Exhibit 14. And what we want to do is to show here the 13 affect of the flow split that occurs at the head of Old 14 River in the period April 1st, 1984. 15 Now, you recall '84 was the year when the model 16 was really well calibrated, because the channel's 17 geometries hadn't really changed. And the green line 18 represents the San Joaquin River flow downstream of the 19 confluence; the red dotted line is the flow in Old River 20 beyond where the barrier would be in place if it were in 21 place. And the blue line is the San Joaquin River flow 22 upstream of the confluence. And you can see there is a 23 flow split where approximately 60 percent of the flow 24 actually goes down Old River rather than down the San 25 Joaquin River. And, then, the next slide, what we do, CAPITOL REPORTERS (916) 923-5447 1527 1 actually, is put the barrier in place on the 14th, 15th of 2 April. And you see the affect of the barrier is to -- 3 MS. LEIDIGH: Is this Figure 22? 4 DR. LIST: This is Figure 22 of Exhibit 14. And the 5 affect of the barrier is to cut off most of the flow that's 6 going in Old River and redivert the flow down the San 7 Joaquin River. So you see the affect of the barrier in the 8 head of Old River was to take -- before the barrier was in 9 place, 60 percent of the flow was going down the Old River, 10 now it's a very small percentage. 11 The barrier is, apparently, with all the holes in 12 it, there's a notch in the top, so there's still some flow 13 that goes down Old River. When the barrier is taken back 14 out, again, at 45 days after that, about May 15th, then the 15 flow resumes with its flow split back into Old River and 16 down the San Joaquin River, again. That represents what 17 would happen in 1984, which was a wet year. 18 In 1987, which is Figure 24 of Exhibit 14, is -- 19 you see the flow, the total flow in the San Joaquin River 20 is significantly less during that period, because it's a 21 dry year. And, again, the flow split is around 60 percent 22 of the flow going down Old River; 40 percent going down the 23 San Joaquin River, approximately. 24 And, then, when we put the barrier in place, which 25 is in the next slide which is Figure 26 of Exhibit 14, CAPITOL REPORTERS (916) 923-5447 1528 1 again, we see for this 15 days the barrier is put in place, 2 the flow is diverted down the San Joaquin River. There's 3 still a small flow that goes down Old River. And then the 4 barrier is removed around May 15th, the flow reverts back 5 to its normal. 6 And that's the point that I really want to put 7 across here. The affect of the head of Old River barrier 8 is to have a pronounced affect on the flow split that 9 occurs. When normally there would be approximately 60 10 percent of the flow in the San Joaquin River travelling 11 down Old River, it's reduced to about 5 percent or so by 12 the placement of the barrier at that point. And that's 13 really the point that I wanted to -- I'm here to present. 14 MR. O'LAUGHLIN: All right. That is the testimony 15 of -- summary of the testimony that has been offered as San 16 Joaquin River Group Authority 14. 17 C.O. CAFFREY: All right. Thank you, Mr. O'Laughlin. 18 By a showing of hands, can we see how many parties wish to 19 cross-examine Professor List? We have Mr. Herrick, 20 Mr. Jackson. Did I miss anybody? I have Mr. Herrick and 21 Mr. Jackson. All right. 22 Good morning, Mr. Herrick. Your turn to 23 cross-examine. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 1529 1 ---oOo--- 2 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 3 OF DR. ERICSON JOHN LIST 4 BY SOUTH DELTA WATER AGENCY 5 BY MR. JOHN HERRICK 6 MR. HERRICK: Good morning, Mr. Chairman and Board 7 Members. John Herrick, South Delta Water Agency. 8 Mr. List, can we go back to your Figure Number 8 9 real quickly, please? 10 DR. LIST: Grant Line Canal, that would be the last 11 one with calibration. That would be the purple one, Bill. 12 MR. HERRICK: I believe you said that the change in 13 the flow there is a result of the Grant Line barrier? 14 DR. LIST: I believe that's true. The Grant Line 15 barrier was, actually, I believe, put in place on the 9th 16 of April. 17 MR. HERRICK: Are you aware of the dates of the 18 permits on the barriers that -- 19 DR. LIST: No. 20 MR. HERRICK: Would you be surprised to learn that 21 the Grant Line barrier cannot be installed until June 1st? 22 DR. LIST: I am totally unaware. And I have no 23 comment on that, because all I'm doing is responding to the 24 information that was responded to -- was provided to us by 25 the Department of Water Resources. CAPITOL REPORTERS (916) 923-5447 1530 1 MR. HERRICK: But if you're trying to calculate flows 2 in Grant Line in April, doesn't it make sense to know 3 whether the barrier can be installed in that month? 4 DR. LIST: It's not -- 5 MR. O'LAUGHLIN: Objection. It's argumentative. 6 He's already answered that he responded to information from 7 the DWR. 8 C.O. CAFFREY: Try another question, Mr. Herrick. 9 MR. HERRICK: What information are you trying to tell 10 us about Grant Line Canal in Figure 8? 11 DR. LIST: The information in Figure 8 is a 12 calibration. The geological survey had an instrument in 13 Grant Line Canal that measured the flow rates in the Grant 14 Line Canal during this period from about the 30th of March 15 through the 16th of April. We thought that since the 16 barrier was put in place during that particular time, 17 according to the information that was provided by the 18 Department of Water Resources, we did a model -- 19 MR. HERRICK: Could I interpreted you. Put in place 20 in 1997? 21 DR. LIST: 1997, yes. 22 MR. HERRICK: And so it's your testimony that the 23 Grant Line Canal barrier went in in 1997 some time in -- 24 some time around April 9th, or something? 25 DR. LIST: According to the information that was CAPITOL REPORTERS (916) 923-5447 1531 1 provided to us by the Department of Water Resources. 2 MR. HERRICK: If that information were to -- 3 MR. BIRMINGHAM: Excuse me, Mr. Caffrey? 4 C.O. CAFFREY: Mr. Birmingham. 5 MR. BIRMINGHAM: Mr. Herrick apparently asked 6 Dr. List a question, which Dr. List was not permitted to 7 fully answer. I wonder if Dr. List could be permitted to 8 fully answer the question: What is he trying to depict 9 through Figure 8 from Exhibit 14? 10 DR. LIST: The depiction in Figure 8 -- 11 C.O. CAFFREY: Go ahead. 12 DR. LIST: -- of Exhibit 14 -- 13 C.O. CAFFREY: Mr. Herrick has no problem with that. 14 DR. LIST: Figure 8 of Exhibit 14 is purely and 15 simply a calibration to determine the efficacy of the 16 Fischer-Delta Model to represent flows within the Grant 17 Line Canal and other areas of the Delta. And I have no 18 idea what the legislation is regarding the placement of 19 barriers. 20 MR. HERRICK: What would you -- would you conclude 21 that your calibration information would be incorrect if, 22 indeed, the Grant Line Canal barrier could not be installed 23 in the middle of April? 24 DR. LIST: If the Grant Line Canal were not 25 installed, then, the calibration information would be CAPITOL REPORTERS (916) 923-5447 1532 1 incorrect. But according to the information that we were 2 provided, that is, when the barrier went in and it 3 appears -- you notice that there is a discontinuity of 4 about four days between what the model shows and the 5 information that was provided to us by the Department of 6 Water Resource. 7 MR. HERRICK: We will have the Department of Water 8 Resources clear that up. Could you turn to your Figure 21. 9 MR. O'LAUGHLIN: Just go ahead and ask your 10 questions. Let's go. 11 MR. HERRICK: We can wait. 12 DR. LIST: That's it, Bill. 13 MR. HERRICK: That looks like 20. 14 MR. O'LAUGHLIN: That's 20, that's not 21. That's 15 not the one they want. 21 is -- 16 DR. LIST: Figure 21 is in the report. I have 23 and 17 25 -- 18 MR. O'LAUGHLIN: We don't have that transparency. Go 19 ahead and ask your questions. 20 DR. LIST: -- 28. 21 MR. O'LAUGHLIN: We're done. 22 DR. LIST: I don't believe I have it here. Sorry. 23 MR. HERRICK: Here, you can look at my copy. Would 24 you identify that for the record what Figure 21 represents? 25 DR. LIST: It says, "Scenario 4/01/1984 Inflows with CAPITOL REPORTERS (916) 923-5447 1533 1 all Barriers expect Head of Old River Barrier in 2 Operation." 3 MR. HERRICK: In producing that chart, what 4 assumptions, or assumed facts did you rely on as to when 5 the three tidal barriers were installed? 6 DR. LIST: This is using 1997 barrier configurations. 7 And the barriers were put in place 60 days after the 8 beginning of April the 1st, which would be two months, 9 April, May, June, beginning of June. 10 MR. HERRICK: Okay. There are three tidal barriers; 11 is that correct? 12 DR. LIST: That's correct. 13 MR. HERRICK: There is one designated Middle River. 14 There's a Grant Line Canal and there's a Tracy River 15 Bridge. 16 DR. LIST: That's correct. 17 MR. HERRICK: Just to clarify, when did each of those 18 barriers, according to the knowledge you had -- according 19 to the information that you had, when were each of those 20 barriers installed? 21 DR. LIST: In beginning of June in -- of 1984 in this 22 simulation. But in 1984, of course, I don't believe they 23 were there. 24 MR. HERRICK: Do you have Figure 29? 25 DR. LIST: Yes, I do have Figure 29. CAPITOL REPORTERS (916) 923-5447 1534 1 MR. HERRICK: Same question: When -- according to 2 your information when were the three tidal barriers 3 installed? 4 DR. LIST: I will have to -- I've got another figure 5 here that shows when the barriers were installed. In 1997 6 and, in fact, the barrier dates are in a table that was 7 provided to us by the Department of Water Resources. And 8 that is table -- excuse me a minute. I'll have to look for 9 it. It's in the testimony. It's Figure 18 of Exhibit 14. 10 It's the barrier schedule that was provided to us by the 11 Department of Water Resources. 12 MR. HERRICK: And this is the installation of the 13 barriers for 1997? 14 DR. LIST: For 1997. 15 MR. HERRICK: And did you use those installation 16 dates for of all your -- 17 DR. LIST: Simulations. 18 MR. HERRICK: -- simulations? 19 DR. LIST: Yes. 20 MR. HERRICK: Did you do any investigation as to 21 whether or not the barrier installations varied over the 22 years? 23 DR. LIST: No. The purpose of this was simply to 24 simulate what the affect of the barrier operation was in 25 1997, if it had been applied in a wet year of 1984 and if CAPITOL REPORTERS (916) 923-5447 1535 1 it had been it applied in a dry year of 1987. And it was 2 because there were no barriers in 1984, what we did is took 3 the barrier schedule that was provided by DWR. And that's 4 what is listed here in Figure 18 of Exhibit 14. 5 MR. HERRICK: Would you note that on the -- on your 6 Figure 18 the Grant Line Canal barrier you have an 7 installation of 5/28? 8 DR. LIST: That's correct. 9 MR. HERRICK: Wouldn't Figure 8 show it being 10 installed sometime around the 9th? 11 DR. LIST: No, I don't believe so. Let me -- that's 12 correct. So this -- there's some discrepancy there. It 13 shows -- the Figure 8 of Exhibit 14, actually, shows the 14 barrier in place in the model in the -- around the 12th of 15 April. The schedule shows it as the 28th of April. 16 MR. HERRICK: Then -- 17 DR. LIST: But as I pointed out, this is a -- April, 18 May, yeah. 19 MR. HERRICK: So it's about a month and a half off? 20 DR. LIST: The May -- there may be a typographical 21 error here on either one of Figure 18 or Figure 8. 22 MR. HERRICK: On -- so all of your modeling results, 23 also, assumed that the Middle River Bridge was installed, 24 it says 4/5/97, that would be April 15th of '97? 25 DR. LIST: Middle River barrier, yes. CAPITOL REPORTERS (916) 923-5447 1536 1 MR. HERRICK: And Old River is 4/13/97? 2 DR. LIST: That's if those barriers were actually 3 placed, not all of them, all of the modeling results. You 4 recall that some of the modeling results had simply the 5 head of Old River installed at the head of Old River. And 6 then there were others that had the -- there were other 7 barriers in not at the head of Old River. 8 MR. HERRICK: Correct. I didn't mean to misrepresent 9 that. Of course, some of your modeling runs didn't examine 10 all of those barriers. 11 DR. LIST: That's correct. 12 MR. HERRICK: Let me just ask you one more question. 13 Is it -- do you have an opinion as to whether or not the 14 three tidal barriers working in conjunction without the 15 head of Old River barrier have a similar affect on flows to 16 Old River as just does the operation of the head of Old 17 River barrier? 18 DR. LIST: At this point I haven't really made a 19 comparative analysis of that particular issue. So I can't 20 really respond without doing a comparative analysis. They 21 are going to significantly change. Whatever you do is 22 going to change the flow within the Delta, but at this 23 point I can't make a comparative analysis. 24 MR. HERRICK: Well, on page seven of your testimony 25 I thought you made that point. Could you turn to that, CAPITOL REPORTERS (916) 923-5447 1537 1 please, page seven of the written testimony? 2 The first full paragraph I believe talks about 3 measuring the flows with the -- with the three tidal 4 barriers and noting the same sort of relationship of 5 increased flow down the main stem of the San Joaquin and 6 decreased flow down Old River. 7 DR. LIST: That's the point that I made. That, in 8 fact, there is a significant change in the flow within the 9 Delta. But as to making a comparison, whether the head of 10 Old River barrier is going to be exactly the same as the 11 placement of the other barriers, I can't do that without 12 doing a detailed comparative analysis. But, overall, 13 there's a significant change. They both have a significant 14 affect on the flow within the Delta. 15 MR. HERRICK: Okay. Thank you very much. 16 C.O. CAFFREY: Thank you, Mr. Herrick. Mr. Jackson? 17 Good morning, sir. 18 MR. JACKSON: Good morning. Could you put up Figure 19 17, please? 20 MR. O'LAUGHLIN: If we have it. 21 MR. JACKSON: Okay. 22 MR. O'LAUGHLIN: That's it. 23 MR. JACKSON: Thank you. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 1538 1 ---oOo--- 2 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 3 OF DR. ERICSON JOHN LIST 4 BY REGIONAL COUNCIL OF RURAL COUNTIES 5 BY MICHAEL B. JACKSON 6 MR. JACKSON: Dr. List, what does this figure 7 represent? 8 DR. LIST: This is an assessment of the -- there were 9 tracer releases made in the Delta, because of -- let me 10 step back a bit. The biologists had information about the 11 passage of fish through the Delta in 1987. And the purpose 12 of some simulations was to determine what -- where specific 13 tracers were to go if they were released in the Delta 14 during this period in 1987. 15 So April the 27th of 1987 tracers were released 16 from three different locations: One at Mossdale Landing, 17 one at Holland Tract, and one at Cruiser Haven Marina. 18 They measured these tracers, one would be red, one would be 19 green, and one would be blue. And what we do is calculate 20 within the computer a fraction of each one of those tracers 21 that passes particular points. So after 60 days, then, you 22 can determine the amount of the percentage of the tracer 23 that was released that arrived at that particular point. 24 So you can image that if at Mossdale Landing you 25 through in a truckload of green tracer balls, then, this CAPITOL REPORTERS (916) 923-5447 1539 1 would be the fraction of them that would arrive at those 2 places within a 60-day period. So you that see under the 3 two different -- two different conditions here, one is with 4 historical which is the measured exports; and the one on 5 the right-hand side is modified exports, would just assume 6 that there is -- there is no operation of the state water 7 plant. 8 MR. JACKSON: All right. So the two columns, 9 "Historical exports" are the historical exports of the 10 exporters including both the state and the federal pumps? 11 DR. LIST: That's correct. 12 MR. JACKSON: And the modified exports show what 13 happened before the state pumps were built? 14 DR. LIST: Well, it's a simulation of what would 15 happen in 1987 if the State Water Project had not been 16 constructed. 17 MR. JACKSON: Had not been constructed? 18 DR. LIST: Yeah. 19 MR. JACKSON: All right. Calling your attention, 20 first, to the releases from Mossdale Landing, am I correct 21 in reading that if the state pumps had not been built 22 clearly there would have been none of the tracers reaching 23 the Banks pumping plant, because it wouldn't have been 24 there? 25 DR. LIST: That's correct. CAPITOL REPORTERS (916) 923-5447 1540 1 MR. JACKSON: And so in each of the percent reaching 2 Banks pumping plant in the modified exports, the zero 3 reflects its nonexistence? 4 DR. LIST: That's correct. 5 MR. JACKSON: All right. Now, these releases are 6 all -- Mossdale is above Old River? 7 DR. LIST: That's correct. 8 MR. JACKSON: And the other two are in Old River? 9 DR. LIST: One's at Holland Tract, which is on the 10 west side of Holland Tract. And the other is in Old River 11 at Cruiser Haven Marina, here. 12 MR. JACKSON: Which one is closer to the pumps? 13 DR. LIST: Cruiser Haven Marina. 14 MR. JACKSON: Okay. In taking a look at the percent 15 passing Stockton column, Cruiser Haven and Holland Tract 16 are below the confluence with the Old River in the Old 17 River. And, obviously, none of it would go back upstream; 18 is that right? 19 DR. LIST: I'm sorry. I was looking at the chart and 20 Mr. O'Laughlin's head is obscuring the chart. 21 MR. JACKSON: Okay. 22 DR. LIST: Could you repeat the question? 23 MR. JACKSON: Certainly. Calling your attention now 24 to the last -- to the last of the categories, "Percent 25 Passing Stockton -- CAPITOL REPORTERS (916) 923-5447 1541 1 DR. LIST: Yes. 2 MR. JACKSON: -- in the San Joaquin River." 3 DR. LIST: That's right. 4 MR. JACKSON: The reason there is a zero for each of 5 those in the release from Holland Tract and Cruiser Haven 6 Marina is because the tracer would have to go back upstream 7 to get into the San Joaquin to go down to Stockton? 8 DR. LIST: That's correct. 9 MR. JACKSON: Okay. So leaving those two categories 10 aside, the graph seems to reflect that with the modified 11 exports, or the lack of exports at the Banks pumping plant, 12 more of the simulated tracer would pass Stockton in the San 13 Joaquin simply because there was less pumping; is that 14 right? 15 DR. LIST: Well, if you -- if you look at the 16 Mossdale Landing, there is a six-percent increase. 17 MR. JACKSON: Now, that's reflected in your written 18 testimony as well, is it not? 19 DR. LIST: I believe so. 20 MR. JACKSON: On page seven -- excuse me, at the 21 bottom of page six. The second to the last sentence, 22 (Reading): 23 "The fraction of captured at the export pumps 24 decreases from 77 percent to 62 percent when 25 exports are modified." CAPITOL REPORTERS (916) 923-5447 1542 1 DR. LIST: That's correct. And a larger fraction 2 passes Stockton when exports are modified, six percent. 3 Now, whether this is -- it's probably significant, but 4 remember this is a model. 5 MR. JACKSON: Yes, sir. But you do believe that 6 statistically it is probably significant? 7 DR. LIST: That is probable. 8 MR. JACKSON: And it is a reflection of the pumping 9 rate? 10 DR. LIST: Yes. 11 MR. JACKSON: Now, on page seven, I believe you say 12 that the affects clearly show that when exports are higher, 13 more water enters Old River from the San Joaquin River. 14 And is that true? 15 DR. LIST: That's true. 16 MR. JACKSON: And that your conclusion is that 17 increasing exports increases the flow rates observed in all 18 channels leading to the pumps. And, then, you say, "As 19 would be expected." 20 DR. LIST: Yes. 21 MR. JACKSON: And that's fairly clear? 22 DR. LIST: Yes. 23 MR. JACKSON: Now, if the water does not reach the 24 pumps, assuming that the pump's exports stay the same, and 25 the water does not reach the pumps because of the barriers CAPITOL REPORTERS (916) 923-5447 1543 1 installation, where would the pumps get their water? 2 DR. LIST: I'm not quite sure I follow your question. 3 The pumps are going to take water out of the Delta if the 4 pumps are operating and that's going to depress the water 5 surface elevation at that part of the Delta. And the net 6 result is going to be a flow to replace that reduction. 7 And it's going -- it's a complex hydrodynamic question 8 which the model is -- the basis of the model is to answer 9 these kind of questions. 10 MR. JACKSON: Yes. 11 DR. LIST: And -- so that you can -- by changing the 12 flow rates at the pumps you can perceive where the flow 13 comes from. 14 MR. JACKSON: Well, now, clearly your -- your earlier 15 figures showed that when the barrier went in, the flow 16 level -- or the water levels in the Old River drops 17 substantially as the water -- 18 DR. LIST: The flow -- the fraction of flow that went 19 from the San Joaquin River into the Old River drops 20 substantially by placement of the head of Old River 21 barrier. 22 MR. JACKSON: And so in that circumstance there is 23 less water in the Old River to be exported? 24 DR. LIST: There is not less water in the river. The 25 flow rate is reduced. There's the same amount of water in CAPITOL REPORTERS (916) 923-5447 1544 1 the river, it's just the flow rate is reduced. 2 MR. JACKSON: And the water is coming in a different 3 direction, then, right? 4 DR. LIST: To the pumps, yeah. 5 MR. JACKSON: To the pumps? 6 DR. LIST: Yeah. 7 MR. JACKSON: And that direction is from the Central 8 Delta? 9 DR. LIST: And that would be the Old River and 10 Victoria. 11 MR. JACKSON: All right. And the -- I believe you 12 say in -- you might check on page seven, second paragraph 13 at the end, "Because the export -- because the same amount 14 of water is exported in these model runs this means that 15 the water reaches the export pumps"? 16 DR. LIST: That's exactly what I said through Old 17 River and through Victoria Canal. 18 MR. JACKSON: All right. Now, does that increase 19 the -- does that increase the velocity of the water toward 20 the pumps from the Central Delta? 21 DR. LIST: It increases the velocity in Victoria 22 Canal and in Old River. 23 MR. JACKSON: Do you know whether or not it increases 24 the velocity of the flow from the Central Delta to the 25 pumps? CAPITOL REPORTERS (916) 923-5447 1545 1 DR. LIST: I can tell you which -- if you tell me 2 specifically about which -- which channels you're referring 3 to and, then, I can go back to the model and look at that 4 specific canal. The two channels that I've identified here 5 are Old River and Victoria Canal. 6 MR. JACKSON: And you're certain about that result? 7 DR. LIST: Yes. 8 MR. JACKSON: That it does increase the flow rate 9 towards the pumps at those two? 10 DR. LIST: That's correct. 11 MR. JACKSON: Now, again, taking a look at this 12 figure, in regard to the historical exports and calling 13 your attention to the release from Mossdale Landing, 14 historically, the percentage reaching Chipps Island is one 15 percent? 16 DR. LIST: That's -- that appears to be the case. 17 MR. JACKSON: Which is, essentially, saying that the 18 Sacramento -- or the San Joaquin water released at 19 Mossdale, basically, doesn't make it to Chipps Island? 20 DR. LIST: That's correct. 21 MR. JACKSON: Now, the release from Holland Tract, 22 the percentage reaching Chipps Island in historical exports 23 is 9. And in modified exports without the state pumps is 24 31. What significance does that have in your mind? 25 DR. LIST: The -- it just says that the flow velocity CAPITOL REPORTERS (916) 923-5447 1546 1 from Holland Tract that there is a larger fraction of water 2 in Holland Tract that gets to Chipps Island. Under the 3 modified -- the probability, the probability of a release 4 at Holland Tract getting to Chipps Island is higher if the 5 State Water Project pumps are not operational. 6 MR. JACKSON: Thank you. Now, -- and the Cruiser 7 Haven Marina number under any circumstance is there just -- 8 if you release it there none of it makes it to Chipps 9 Island; is that correct? 10 DR. LIST: That's what happened in these simulations. 11 MR. JACKSON: Okay. I'd like to see Figure 19, 12 please. Now, what does this figure depict, sir? 13 DR. LIST: This depicts a very similar circumstance 14 that we just considered except instead of modifying the 15 flow rates, we just placed the barriers according to the 16 barrier schedule of 1997. 17 MR. JACKSON: Now, in this particular circumstance we 18 assume in both columns, both the operation of state pumps 19 at Banks and the federal pumps at Tracy? 20 DR. LIST: This is historical pumping, right. 21 MR. JACKSON: Right. And -- 22 DR. LIST: It's a little difficult -- I'm sorry, I 23 don't mean to interrupt. 24 MR. JACKSON: No. That's fine, please. 25 DR. LIST: It's a little difficult to interpret this CAPITOL REPORTERS (916) 923-5447 1547 1 because, in fact, the application of historical pumping 2 rates is superimposed on this. So deciding which is 3 barrier and which is pumping is not quite straightforward. 4 MR. JACKSON: All right. And since you're generally 5 the recognized expert on hydrodynamics in the Delta, right, 6 so if it's unclear to you, it may be unclear to all of us? 7 DR. LIST: It's not always clear to me either. 8 MR. JACKSON: Calling your attention to the releases 9 from Mossdale, the -- and calculating the top two numbers, 10 the percent reaching Banks and the percent reaching Tracy, 11 clearly, without the barriers slightly -- well, I'll let 12 you characterize it. 13 It seems that it's 61 percent reaching the pumps 14 without the barriers and 41 percent reaching the pumps with 15 the barriers? 16 DR. LIST: That represents the fraction of a release 17 at Mossdale Landing. So this would be some neutrally 18 buoyant tracer that is put -- put into the river at 19 Mossdale Landing. 20 MR. JACKSON: And, certainly, we do put more of a 21 tracer pass Stockton with the barriers than without the 22 barriers, 97 to 36? 23 DR. LIST: That's correct. 24 MR. JACKSON: All right. And more with the barriers 25 from Mossdale reaches Chipps Island than without, correct? CAPITOL REPORTERS (916) 923-5447 1548 1 DR. LIST: That's true. Now, remember this is just 2 within the 60-day period. 3 MR. JACKSON: Yes. 4 DR. LIST: It may be possible that the numbers may 5 change if you run it out for a hundred days. 6 MR. JACKSON: Now, we don't know anything about where 7 the tracer went during the 60 days, do we? 8 DR. LIST: We can. It's a big deal to keep track of 9 it, but it is possible in the model to do that. 10 MR. JACKSON: Did you do that in these simulations? 11 DR. LIST: No. 12 MR. JACKSON: And it's possible that since these 13 numbers don't add up to a hundred, that this tracer that 14 arrived at one place or the other arrived later than the 60 15 days? 16 DR. LIST: That's correct. 17 MR. JACKSON: And that's why they don't add up to the 18 numbers? 19 DR. LIST: That's exactly right. 20 MR. JACKSON: Okay. Now, calling your attention to 21 the Holland Tract number, the column percent reaching 22 Chipps Island, more of it reaches Chipps Island without the 23 barriers. Could you explain why that might be the case? 24 DR. LIST: More reaching Chipps Island without the 25 barriers in place from Holland Tract? CAPITOL REPORTERS (916) 923-5447 1549 1 MR. JACKSON: Yes. 2 DR. LIST: There is less likely to be reversed flow 3 in the Old River at Holland Tract. 4 MR. JACKSON: So what we see is an indication of 5 reversed flow increasing because of the barriers? 6 DR. LIST: Reverse flow in Old River? 7 MR. JACKSON: Yes. 8 DR. LIST: That's correct. 9 MR. JACKSON: All right. And the same thing is true 10 in Cruiser Haven; is that right? 11 DR. LIST: That's correct. 12 MR. JACKSON: Thank you very much. I have no further 13 questions. 14 C.O. CAFFREY: All right, thank you, Mr. Jackson. 15 That completes the cross-examination of Professor List. 16 Mr. O'Laughlin, do you have any redirect? 17 MR. BIRMINGHAM: If I may say something -- 18 C.O. CAFFREY: Excuse me. Excuse me, I went through 19 this in the morning. I must not have gotten a good night's 20 sleep. I apologize to the staff. 21 MR. HOWARD: No questions. 22 C.O. CAFFREY: No questions. And Board Members? If 23 I didn't have Mr. Stubchaer here to poke me in the arm 24 sometimes, I wouldn't know what I'd do. 25 Mr. Stubchaer, do you have a question? CAPITOL REPORTERS (916) 923-5447 1550 1 ---oOo--- 2 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 3 BY THE BOARD 4 C.O. STUBCHAER: I have a question. At the 5 confluence of Old River and the San Joaquin River without 6 the barrier, is any of the flow going down to Old River due 7 to tidal pumping? In other words, less hydraulic 8 resistance coming off the San Joaquin system than coming 9 through the Delta causing a differential in water levels? 10 DR. LIST: Yes, there is some of that. And there is 11 some tidal affect at that point. 12 C.O. STUBCHAER: And would the barrier in place at 13 that location, I couldn't see an exhibit at the confluence 14 in your testimony, but is the San Joaquin River 15 significantly tidal? 16 DR. LIST: At that point? 17 C.O. STUBCHAER: With the barrier in place? 18 DR. LIST: The San Joaquin River, yes, sir, there is 19 some tidal affect even with the barrier in place. 20 C.O. STUBCHAER: Okay. Thank you. 21 C.O. CAFFREY: Anything else from the Board Members? 22 All right. Thank you. Any redirect, Mr. O'Laughlin? 23 MR. O'LAUGHLIN: If we might have just a moment. 24 It's 10:15 and we can take our morning break for ten 25 minutes and then come back and I can tell you at that point CAPITOL REPORTERS (916) 923-5447 1551 1 in time if we have any redirect. 2 C.O. CAFFREY: Sounds good. Let's do that. 3 MR. O'LAUGHLIN: Thank you. 4 (Recess taken from 10:14 a.m. to 10:32 a.m.) 5 C.O. CAFFREY: All right. We're back on the record. 6 Mr. O'Laughlin? 7 MR. O'LAUGHLIN: Is it okay if I sit here, 8 Mr. Chairman, and ask the questions? 9 C.O. CAFFREY: Certainly, sir. 10 MR. O'LAUGHLIN: Thank you. 11 C.O. CAFFREY: There's no requirement to stand at the 12 podium. 13 MR. O'LAUGHLIN: Thank you. 14 C.O. CAFFREY: This is redirect, then, for 15 Professor List. 16 ---oOo--- 17 REDIRECT EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 18 OF DR. ERICSON JOHN LIST 19 BY TIM O'LAUGHLIN 20 MR. O'LAUGHLIN: Dr. List, in your testimony you were 21 unclear as to whether in Figures 8, 29, and 18 there was a 22 typographical error. Have you had a chance to review those 23 figures during the break? 24 DR. LIST: Yes, I have. 25 MR. O'LAUGHLIN: Is there a typographical error? CAPITOL REPORTERS (916) 923-5447 1552 1 DR. LIST: No. 2 MR. O'LAUGHLIN: Can you, please, explain the 3 differences that are shown in Figures 8 and 29 due to the 4 installation of the barriers? 5 DR. LIST: Yes. Let's refer to Figure 18 of Exhibit 6 14, note, here, the installation of the barriers. The 7 Middle River barrier went in on April the 5th. Old River 8 at Tracy on April the 13th. The head of the Old River on 9 April the 13th. And the Grant Line Canal on the 29th of 10 May was the schedule obtained from the Department of Water 11 Resources. 12 And if I can refer, now, to Figure 8 of Exhibit 13 14, the net affect here is to the -- it was discussed 14 before. This was the affect of the barrier in Grant Line 15 Canal. This is incorrect. This is the affect of the 16 barriers at the head of Old River at Tracy. The Grant Line 17 Canal barrier has not yet been installed. And what we're 18 seeing here is the affect of the flow in Grant Line Canal 19 from the head of Old River barrier. That's to say, the net 20 affect and the simulated affect. 21 And, then, in Figure 29 of Exhibit 14, the affect 22 of the barrier at the Grant Line Canal is shown here 23 approximately 60 days after April the 1st, which is May the 24 28th, which is the affect of the Grant Line Canal barrier 25 being placed. And you notice that it has the affect of CAPITOL REPORTERS (916) 923-5447 1553 1 reducing the flow into Old River at the head of Old River 2 by placement of the Grant Line Canal barrier. So these 3 figures are correct. There's no requirement to make any 4 substitutions. 5 MR. O'LAUGHLIN: In reviewing your figures, however, 6 during the break you did find that there was one 7 typographical error in regards to Figure 13; is that 8 correct? 9 DR. LIST: That is Figure 13, which is -- I'll put 10 that slide up. 11 MR. O'LAUGHLIN: You don't need to put that up. 12 DR. LIST: At the top of Figure 13 there is a bar 13 schedule which shows the barrier placement. The line which 14 is drawn for the Middle River barrier is incorrect. It 15 shows the Middle River barrier being installed about the 16 middle of July, that's incorrect. The Middle River 17 barrier, actually, went in on April the 14th -- April the 18 5th. 19 MR. O'LAUGHLIN: Mr. Chairman, what we'd like to do, 20 if possible, is on Figure 13, since there has been a 21 typographical error, is that we will provide an errata to 22 Figure 13 to make a correct copy of Figure 13 with the 23 correct data. And we will mail that out to everyone and 24 provide the Board with a copy as well. 25 C.O. CAFFREY: Okay. Then we can, I suppose, give CAPITOL REPORTERS (916) 923-5447 1554 1 that a -- would the correct procedure be to give that, yet, 2 an additional number? 3 MS. LEIDIGH: Yes. 4 C.O. CAFFREY: And, then, we will consider it when 5 you present all your exhibits. 6 MR. O'LAUGHLIN: Thank you, Mr. Chairman. I have no 7 further redirect of Dr. List. 8 C.O. CAFFREY: All right, thank you, Mr. O'Laughlin. 9 Do any of the parties wish to recross Dr. List? 10 MR. NOMELLINI: I do. 11 C.O. CAFFREY: Mr. Nomellini. Anybody else? All 12 right, Mr. Nomellini. 13 ---oOo--- 14 RECROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 15 OF DR. ERICSON JOHN LIST 16 BY CENTRAL DELTA PARTIES 17 BY DANTE JOHN NOMELLINI 18 MR. NOMELLINI: And I think this is just a 19 correction. Dante John Nomellini for the Central Delta 20 Parties. If I heard you correctly, Doctor, you said that 21 the explanation I think for your Number 8 was due to the 22 head of Old River barrier? 23 DR. LIST: That's correct. 24 MR. NOMELLINI: And I think the schedule showed the 25 tidal barrier for Old River, not the head of Old River, but CAPITOL REPORTERS (916) 923-5447 1555 1 the tidal barrier was the one that went in on the date that 2 you referenced earlier? 3 DR. LIST: No. It's the head of Old River barrier 4 that goes in on April the 15th. 5 MR. NOMELLINI: Okay. So your testimony was correct 6 with regard to the head of Old River barrier? 7 DR. LIST: That's correct. 8 MR. NOMELLINI: All right. 9 C.O. CAFFREY: Thank you, Mr. Nomellini. That 10 completes, then, the testimony of Professor List, I 11 believe. Perhaps, I should go to the staff before I error 12 again. Is there -- are there any questions, redirect from 13 the staff? 14 MR. HOWARD: No. 15 C.O. CAFFREY: Thank you. Anything from the Board 16 Members? 17 MEMBER BROWN: No. 18 C.O. CAFFREY: Now, we are done with the direct 19 presentation for this witness. Mr. O'Laughlin -- thank 20 you, Professor List. 21 DR. LIST: Thank you for the opportunity to be here. 22 C.O. CAFFREY: Thank you, sir. Are we at the stage, 23 Mr. O'Laughlin, where you were going to bring back 24 Mr. Steiner for additional cross? 25 MR. O'LAUGHLIN: Yes. He's been waiting here very CAPITOL REPORTERS (916) 923-5447 1556 1 patiently. And he is ready for further cross-examination. 2 C.O. CAFFREY: All right. Let me find my sheet here 3 and I believe that the cross-examiners that remain, and we 4 have added a couple more. I believe, we added Mr. Jackson, 5 who was not here when we called for cross-examiners. And, 6 then, this morning we added Ms. Koehler. So I believe that 7 the cross-examiners in this order are: Mr. Suyeyasu, 8 Mr. Jackson, Ms. Koehler, and that should do it. Good 9 morning, Mr. Suyeyasu. 10 ---oOo--- 11 FURTHER CROSS-EXAMINATION OF SAN JOAQUIN 12 RIVER GROUP AUTHORITY 13 OF DAN STEINER 14 BY ENVIRONMENTAL DEFENSE FUND 15 BY DAN SUYEYASU 16 MR. SUYEYASU: Good morning. Dan Suyeyasu for the 17 Environmental Defense Fund. 18 Mr. Steiner, yesterday in your testimony you said 19 that on the Merced River some of the water that will be 20 provided to make the tributary parties' obligations under 21 VAMP will be provided by reduced diversions and some will 22 be provided by reservoir releases; is that correct? 23 MR. STEINER: That's what my modeling assumption was 24 and that was what I stated, yes. 25 MR. SUYEYASU: Now, during the month of April what, CAPITOL REPORTERS (916) 923-5447 1557 1 on the average, is the level of diversions on the Merced 2 River -- Merced River? 3 MR. STEINER: It's in my model. During April, I 4 would have to look it up in the modeling assumptions. And 5 I don't have those pieces of paper with me. 6 MR. SUYEYASU: Do you have a ballpark figure for us 7 as to the level of diversions? 8 MR. STEINER: No. 9 MR. SUYEYASU: Do you have any ballpark figure what 10 the level of diversions would be on the Stanislaus River 11 during April or May? 12 MR. STEINER: I would not want to venture a ballpark 13 figure. It is a irrigation pattern for their entire 14 entitlement. And in April it's not quite, yet, at the 15 maximum amount in any one month. 16 MR. SUYEYASU: But those figures are discussed in 17 your testimony? 18 MR. STEINER: Yes, it is. 19 MR. SUYEYASU: Okay. Now, in determining the 20 existing flow at Vernalis, that has four components; is 21 that correct? 22 MR. STEINER: You'd have to describe -- 23 MR. SUYEYASU: The in-stream flows on the Merced 24 river, the in-stream flows on the Tuolumne River, the in 25 stream flow requirements on the Stanislaus River as well as CAPITOL REPORTERS (916) 923-5447 1558 1 the net accretions and depletions; is that correct? 2 MR. STEINER: When you say, "in stream" flows for 3 every one of the tributaries it's whatever the flow would 4 be in that particular month. 5 MR. SUYEYASU: Yes. Now, on the Merced River how 6 were -- in developing your model, how were the in-stream 7 flows on the Merced River developed? 8 MR. STEINER: The flows that occur in the study could 9 be a combination -- well, they'll likely become, in the way 10 the model operates, a combination of the minimum in-stream 11 flow as far as fishery purposes under FERC or any other 12 agreement, on top of that there may be more flow to that 13 due to a flood control operation. 14 MR. SUYEYASU: And is that the same on the Tuolumne 15 River? 16 MR. STEINER: That's correct. 17 MR. SUYEYASU: As well as the Stanislaus? 18 MR. STEINER: The Stanislaus is driven by the Interim 19 Operations Plan, it's the coloring on the water. There 20 could be a whole bunch of different purposes. 21 MR. SUYEYASU: Now, you know that there was minimum 22 in-stream flows as well as possibly flood control releases. 23 In your modeling, out of the 71-year model, how often would 24 the in-stream flows on the Merced River be above the 25 minimum requirements? CAPITOL REPORTERS (916) 923-5447 1559 1 MR. STEINER: I'd have to dig that information out of 2 one of those matrixes that I showed you before, or 3 presented before in terms of a 12 by 71 year sequence in 4 hydrology. I couldn't give you an answer right now. 5 MR. SUYEYASU: Do you have any idea if it was 20 or 6 30 years? 7 MR. STEINER: I wouldn't want to venture a guess. 8 MR. SUYEYASU: And you wouldn't want to venture a 9 guess on the Tuolumne River, either, would you? 10 MR. STEINER: No, I wouldn't. 11 MR. SUYEYASU: Okay. Now, are the flows in excess of 12 the minimum in-stream flows -- you called those flood 13 releases. Is the amount of water that is released for 14 flood releases on those rivers discretionary? 15 MR. STEINER: The model doesn't allow it to be 16 discretionary. It is being put out because the flood 17 control requirements, as assumed in the model, require that 18 release to be made. 19 MR. SUYEYASU: So what you're saying is in the model 20 there is specific requirements as to when flood control 21 releases will be made; is that correct? 22 MR. STEINER: That's correct. 23 MR. SUYEYASU: And in reality are there specific 24 requirements when those flood control releases will be 25 made? CAPITOL REPORTERS (916) 923-5447 1560 1 MR. STEINER: The operators are following the rules 2 given to them by the Corps of Engineers that they would be 3 releasing those flows. 4 MR. SUYEYASU: And so -- 5 MR. STEINER: The model is trying to reflect the 6 requirements institutionally, yes. 7 MR. SUYEYASU: And do you know that -- do the 8 institutional requirements give any sort of discretion as 9 to when the flood control releases are released and at what 10 levels? 11 MR. STEINER: Those flood control requirements by 12 the Corps of Engineers are pretty strict in terms of 13 performance as far as what they are to do under certain 14 hydrologic conditions. 15 MR. SUYEYASU: Would it be possible for the operators 16 of the projects that need to give these flood control 17 releases to release flood control water in advance of when 18 it might be required by these operating criteria? 19 MR. STEINER: Hypothetically, yes. And, actually, 20 the model tries to do that some of that itself. 21 MR. SUYEYASU: Why does the model try to do some of 22 that itself? 23 MR. STEINER: Because it's trying to reflect a 24 management of water reflective of how a system will operate 25 during an entire flood control season. Typically what CAPITOL REPORTERS (916) 923-5447 1561 1 we're talking about is you could let the models operate to, 2 essentially, a fill-and-spill operation to where you just 3 hold off until it absolutely hits the requirements that 4 puts water down. The model is smarter than that. It's 5 trying to reflect more realistic conditions in the system 6 where people wouldn't be releasing extra water early. So 7 you don't punch yourself at the last moment with a lot of 8 water released. 9 MR. SUYEYASU: So even though there are specific 10 requirements as to when flood control releases are made, in 11 actuality the operators of the projects make some 12 discretionary decisions before those operating criteria 13 might force them to make releases; is that correct? 14 MR. STEINER: I don't want to speak for what the 15 operators do themselves. I am not one of them. However, 16 the model does assume that that is occurring. 17 MR. SUYEYASU: And why did you make that assumption? 18 MR. STEINER: Because if you review the records that 19 is what happens, also, in reality. 20 MR. SUYEYASU: Thank you. Now, in making the 21 forecasts for the pulse flow at Vernalis, how did you model 22 the net accretions and depletions? 23 MR. STEINER: Within the models, I myself, rely on 24 the data bases that were built for those models by 25 Reclamation and others that investigated the increase in CAPITOL REPORTERS (916) 923-5447 1562 1 depletions quite thoroughly. My general understanding of 2 how those data bases were created, they are essentially an 3 input to a -- a fixed input to the model itself. 4 MR. SUYEYASU: And that the accretions/depletions 5 portion of the model does that include -- now, the 6 accretions/depletions part of the model, does that include 7 diversions from the stream below the reservoirs where you 8 measured the minimum inflow streams? 9 MR. STEINER: Yes. They may not be listed as 10 accretions/depletions. They may actually be listed in the 11 model as diversions. 12 MR. SUYEYASU: And so in doing your analysis you 13 determined what the accretions and depletions during the 14 pulse-flow period would be based on historical data during 15 that period; is that correct? 16 MR. STEINER: That's where most of those -- it's a 17 history in terms of measured flows in terms of regarding 18 diversions from the river section, not in -- of the 19 proponent projects here, but various information was used 20 to come up with reasonable estimates for all the action 21 below certain control points of water coming in or out of 22 the system. 23 MR. SUYEYASU: Now, when the VAMP experiment is, 24 actually, being operated, the hydrology committee as well 25 as the technical committee that oversees them will have to CAPITOL REPORTERS (916) 923-5447 1563 1 at some point have to make a forecast of what the 2 accretions and depletions will be during the test flow 3 period; is that correct? 4 MR. STEINER: That's correct. 5 MR. SUYEYASU: And to determine what that level of 6 accretions and depletions would be do they average it over 7 the test flow period, or do they pick a specific day within 8 the test flow period? 9 MR. STEINER: This is going into the testimony that 10 Mr. Van Camp provided. In terms of the modeling though 11 that I have done, it's just a matter of assumption and 12 record. Are you looking for me to go on to -- moving into 13 the realtime operation as opposed to modeling that I've 14 done? 15 MR. SUYEYASU: Yes. 16 MR. STEINER: No. As part -- as part of the process 17 of the forecasting it depends on where you're starting 18 from. If you start, for instance, in February you may be 19 looking at a very general assumption, or estimation of 20 accretion/depletion below the control points three months 21 in advance, or ahead of you there. 22 In that case you may just try to look at the 23 entire month from historical records of looking at what the 24 accretion and depletion was in other typical years. As you 25 move closer and closer to the forecast -- to the mid CAPITOL REPORTERS (916) 923-5447 1564 1 month -- the April/May period you're going to refine your 2 process and rely on more and more close-hand data, 3 including data that maybe you look at the gages the day 4 before and figure out are you in the neighborhood of a 5 typical year. But you'll start to rely on real existing 6 data as opposed to forecasted data for these models. 7 MR. SUYEYASU: And is it correct to assume that the 8 hydrology group will, then, extrapolate from the real data 9 in the pulse-flow period to determine what the existing 10 flow will be? 11 MR. STEINER: Yes, you'll get there. 12 MR. SUYEYASU: Do you know of any type of regression 13 model that's being used to extrapolate from the realtime 14 data into the pulse-flow period? 15 MR. STEINER: I don't know what you call a 16 "regression." You have the historical record at hand along 17 with these planning tools that we have come to estimate 18 accretions/depletions on a long time record. Regressions 19 are involved in that data somewhere or another, but you can 20 look at the data to make reasonable estimates. 21 MR. SUYEYASU: So you're saying just before they go 22 into the pulse-flow period they have to make some type of 23 reasonable estimate of what it will be during the 24 pulse-flow period? 25 MR. STEINER: That's right. CAPITOL REPORTERS (916) 923-5447 1565 1 MR. SUYEYASU: But they can't know for sure what the 2 existing pulse-flow period -- 3 MR. STEINER: The errors are going down as 4 we'regetting closer and closer. It's not much of an 5 estimate at the last moment. 6 MR. SUYEYASU: Okay. Now, in making this existing 7 flow forecast, what percentage exceedance level is used in 8 terms of the 90-percent exceedance level forecast, or the 9 50-percent exceedance level forecast? 10 MR. STEINER: That information is discussed in 11 Appendix B, which was testified to by Mr. Van Camp. I'd 12 have to review the document to see what was decided. 13 MR. SUYEYASU: Okay. So you do not know yourself 14 what type of -- level -- 15 MR. STEINER: There was a discussion and it's in the 16 document. 17 MR. SUYEYASU: Okay. 18 MR. STEINER: In terms of the modeling it's using -- 19 it does not enter into the equation as far as exceedance. 20 It is what the data file did. 21 MR. SUYEYASU: Now, in making their forecast, what 22 difference would it make if the hydrology group used the 23 90-percent exceedance level, or the 50-percent exceedance 24 level? 25 MR. STEINER: That answer comes by -- well, what CAPITOL REPORTERS (916) 923-5447 1566 1 forecast are you talking about, one way back in February, 2 or one just before the event? 3 MR. SUYEYASU: Let's talk about way back in February 4 first. 5 MR. STEINER: You will have, essentially, a potential 6 error bar with it. 7 MR. SUYEYASU: And would the 90-percent forecast be 8 higher or lower than the 50-percent forecast? 9 MR. STEINER: You'll have to define -- you mean -- 10 well, 90-percent chance of exceeding that forecast, so it 11 would be on the dry side. 12 MR. SUYEYASU: So the 90-percent exceedance forecast 13 would generally be lower; is that correct? 14 MR. STEINER: That's correct. 15 MR. SUYEYASU: Now, as you get closer to the 16 pulse-flow period, would there still be a difference 17 between the 90-percent exceedance forecast and 50-percent 18 exceedance forecast? 19 MR. STEINER: In theory, yes. In magnitude it may be 20 very insignificant. 21 MR. SUYEYASU: Now, you developed models for the 22 pulse-flow periods occurring during the month of May as 23 well as during the month of April; is that correct? 24 MR. STEINER: That's correct. 25 MR. SUYEYASU: And, in fact, the pulse-flow period CAPITOL REPORTERS (916) 923-5447 1567 1 could occur during any one -- any one 30-day period in any 2 one of those two months; is that correct? 3 MR. STEINER: That's my understanding, yes. 4 MR. SUYEYASU: Now, with any given year the 5 forecasted existing flow at Vernalis was different for the 6 month of May than it was for the month of April; is that 7 correct? 8 MR. STEINER: In my modeling technique, yes, it would 9 be -- it could be. 10 MR. SUYEYASU: And in reality, the pulse-flow period 11 will not always come during just April or just during May; 12 is that correct? 13 MR. STEINER: In reality I don't know. 14 MR. SUYEYASU: But the average flows that you 15 outlined in your results that you presented in your 16 testimony sort of clump as if it were all to come in April, 17 or if it were all to come in May; is that correct? 18 MR. STEINER: That's how I performed the studies. 19 MR. SUYEYASU: Now, in the San Joaquin River 20 Agreement it does not specify any reason why a particular 21 pulse-flow period must be chosen, does it? 22 MR. STEINER: No. They have established a general 23 working point at this point that they're assuming. They 24 were initially aiming at the April 15th to May 15th period. 25 MR. SUYEYASU: But it could happen under the CAPITOL REPORTERS (916) 923-5447 1568 1 agreement at any time within April or May; is that correct? 2 MR. STEINER: I believe under the consensus 3 agreement, yes. 4 MR. SUYEYASU: Now, may the technical committee or 5 the management committee select the pulse-flow period based 6 on which pulse-flow period will require -- will have the 7 lowest predicted existing flows? 8 MR. STEINER: That could be an outcome. I don't know 9 if that would be their objective. 10 MR. SUYEYASU: Do you know of anything in the 11 river -- the San Joaquin River Agreement that would prevent 12 them from choosing the pulse-flow period based on the 13 prediction of existing flows? 14 MR. STEINER: You -- it's based on existing flow. 15 And so they will base their decision on existing flow. 16 MR. SUYEYASU: So they could choose a pulse-flow 17 period based partly on the fact that that period has a 18 lower predicted existing flow; is that correct? 19 MR. STEINER: Hypothetically, yes, they could. 20 MR. SUYEYASU: So as compared to Figure 2 on page 18 21 of your testimony -- 22 MR. STEINER: Excuse me, take me back to where you're 23 referencing. 24 MR. SUYEYASU: It's Figure 2 on page 18 of your 25 testimony. CAPITOL REPORTERS (916) 923-5447 1569 1 MR. STEINER: Yes. 2 MR. SUYEYASU: Now, is it possible that the total 3 flows required under the San Joaquin River Agreement could 4 be less than those suggested in either one of these bar 5 graphs simply by the technical committee, or the management 6 committee always picking the pulse-flow period in any given 7 year with the lowest predicted existing flow? 8 MR. STEINER: It's a confusing question in context. 9 MR. SUYEYASU: I'll try and step back. In some years 10 the predicted existing flow will be lower in the month of 11 May; is that correct? 12 MR. STEINER: Lower than what? 13 MR. SUYEYASU: Lower than the predicted existing flow 14 in the month of April. 15 MR. STEINER: Yes, it could. 16 MR. SUYEYASU: And in some years the predicted 17 existing flow in April could be lower than that predicted 18 for May; is that correct? 19 MR. STEINER: That's correct. 20 MR. SUYEYASU: So would the total amount of water 21 provided by the San Joaquin River Agreement be less than 22 that suggested in either of the pictures on Figure 2 if the 23 technical committee, or the management committee chose in 24 any given year a pulse-flow period that had the lowest 25 predicted existing flow? CAPITOL REPORTERS (916) 923-5447 1570 1 MR. STEINER: As compared to if you were to compare 2 it to the other month which you set up as being higher in 3 existing flow. 4 MR. SUYEYASU: Let me rephrase the question. 5 Would -- would the total flow provided by the San Joaquin 6 River Agreement be less in any -- could the average flow 7 provided by the San Joaquin River Agreement be less than 8 that suggested in the two graphs on Figure 2 simply by the 9 technical committee, or the management committee always 10 picking a pulse-flow period in which the existing flow was 11 predicted to be less than the other one? 12 MR. STEINER: Not necessarily. 13 MR. SUYEYASU: Not necessarily, okay. Now, in your 14 testimony the current conditions that you studied, would 15 you describe that model as summarizing what would happen if 16 only the Central Valley Project and State Water Project 17 were responsible for meeting the requirements of the Water 18 Quality Control Plan? 19 MR. STEINER: Under the current condition? 20 MR. SUYEYASU: Yes. 21 MR. STEINER: Yes. 22 MR. SUYEYASU: Do you believe the current condition 23 models -- excuse me, if I can withdraw that. 24 Now, under the current condition model the 25 Vernalis flow standards are not always met; is that CAPITOL REPORTERS (916) 923-5447 1571 1 correct? 2 MR. STEINER: Excuse me, I was still bouncing off 3 that other one. Try, again, please. 4 MR. SUYEYASU: Okay. Under the current conditions 5 model of your study the Vernalis flow standards outlined in 6 the Water Quality Control Plan are not always met; is that 7 correct? 8 MR. STEINER: That's correct. 9 MR. SUYEYASU: And the water quality standards at 10 Vernalis are not always met; is that correct? 11 MR. STEINER: That is correct. 12 MR. SUYEYASU: Now -- so when the Central Valley 13 Project and the State Water Project are solely responsible 14 for providing the flows called for in the Water Quality 15 Control Plan at Vernalis, the flows provided do not match 16 those of the Water Quality Control Plan; is that correct? 17 MR. STEINER: For the Vernalis portion. 18 MR. SUYEYASU: Yes That's correct. Now, when the 19 existing flows -- the predicted existing flows at Vernalis 20 are 3100 csf, what would the target flow be? 21 MR. STEINER: There would have to be a little more 22 information regarding the antecedent condition whether we 23 have a double step here or -- 24 MR. SUYEYASU: Assuming a single-step year without 25 any relaxation, if there's a 3100 csf existing flow at CAPITOL REPORTERS (916) 923-5447 1572 1 Vernalis, what would the required flow be? 2 MR. STEINER: 3200 csf. 3 MR. SUYEYASU: And assuming the single-step criteria 4 with no relaxation, if the existing flow predicted at 5 Vernalis were 3200 csf, what would the target flow be? 6 MR. STEINER: 4,450 csf. 7 MR. SUYEYASU: So under the San Joaquin River 8 Agreement a reduction in existing flow at Vernalis of 100 9 csf can reduce the obligations of the parties by 1150 csf; 10 is that correct? 11 MR. STEINER: Yes. And conversely if it were to 12 increase over the threshold, it would increase the 13 corresponding amount. 14 MR. SUYEYASU: Now, do you know who serves on the 15 technical committee of the San Joaquin River Agreement? 16 MR. STEINER: As it was testified to by Mr. Van Camp 17 yesterday, parties to the agreement and others that may be 18 appointed. 19 MR. SUYEYASU: Now, in doing your modeling of what 20 flows would be provided under the San Joaquin River 21 Agreement, did you consider at all that the parties who are 22 on the technical committee might change the method for 23 determining existing flows based on what their obligations 24 might be? 25 MR. STEINER: Did I consider it? CAPITOL REPORTERS (916) 923-5447 1573 1 MR. SUYEYASU: Did you consider that? 2 MR. STEINER: No. 3 MR. SUYEYASU: So in doing your analysis you merely 4 looked at what the historical flows were during those 5 periods; is that correct? 6 MR. STEINER: Not at all. This is a modeled effort, 7 not a historical review. 8 MR. SUYEYASU: Okay. Now, do you know of any other 9 flow standards, besides the San Joaquin River Agreement, 10 that are based on a similar assessment of existing flow at 11 a given location? 12 MR. STEINER: In terms of fishery in-stream flows, 13 I'm not aware of it. It's not completely foreign to water 14 management in California. We establish existing flow under 15 various water purchase agreements to prove that water was 16 released and existing to a pre-sale situation. 17 MR. SUYEYASU: But in terms of establishing an 18 in-stream flow criteria for fisheries, you have not heard 19 of any such assessment? 20 MR. STEINER: I haven't heard of any, but it seems to 21 be a new way of doing things. 22 MR. SUYEYASU: How is it that the in-stream flow 23 requirements are usually set forth? 24 MR. STEINER: I don't think there's any "usual." 25 There's all types of nuances depending on stream by stream CAPITOL REPORTERS (916) 923-5447 1574 1 by management choices. You can have either stair-step 2 agreements. And, then, there's some new cutting-edge 3 agreement such as the Tuolumne River to where there is a 4 floating volume of pulse flow, which has no real schedule 5 except as a general area of focus. 6 MR. SUYEYASU: Now, if the parties to the San Joaquin 7 River Agreement increased their diversions during the 8 pulse-flow period above that which was assumed in your 9 modeling, could that possibly change what the target flows 10 were? 11 MR. STEINER: That is a way too complicated question 12 to answer "yes" or "no". Primarily in terms of this 13 information we have in the studies that we ran, I don't 14 believe there was a change in modeling assumption in a 15 particular month. It is happening above the in-stream 16 portion of the river, these diversions that you're talking 17 about. And if those diversions -- excuse me, those 18 releases are driven by either flood control, or minimum 19 in-stream flows and will likely not have an affect. 20 MR. SUYEYASU: Now, are there any diversions below 21 the in-stream flow measurement points on the Merced, 22 Stanislaus, and Tuolumne Rivers? 23 MR. STEINER: It all adds in to that 24 accretion/depletion value before it gets to Vernalis, yes. 25 MR. SUYEYASU: Now, if diversions were increased at CAPITOL REPORTERS (916) 923-5447 1575 1 those points below those in-stream measurement points, 2 would that have the potential to change what the target 3 point would be for a given year? 4 MR. STEINER: Seeing from -- seeing that that would 5 exist existing flow, yes, it could have a potential. 6 MR. SUYEYASU: But in doing your modeling you didn't 7 consider that the parties to the agreement might change 8 their behavior based on the terms of the agreement; is that 9 correct? 10 MR. O'LAUGHLIN: Well, your -- objection. Assuming 11 that the parties are downstream of where the in-stream flow 12 releases would be made available. So it misstates the 13 testimony as well. 14 C.O. CAFFREY: Could you try another question, 15 Mr. Suyeyasu? 16 MR. SUYEYASU: So in running your model you assumed 17 that the parties downstream of the in-stream flow 18 requirements would not make any changes to their diversion 19 levels based on the procedure outlined in the San Joaquin 20 River Agreement; is that correct? 21 MR. STEINER: The parties downstream of our control 22 points are not the parties. And we've held them constant. 23 So there is no assumed change in operation, or diversion by 24 nonagreement parties below our control. 25 MR. SUYEYASU: Now, when you say, "control point," CAPITOL REPORTERS (916) 923-5447 1576 1 are you referring to the control point that make up the 2 in-stream flow requirements for fisheries on the Tuolumne, 3 Stanislaus and Merced Rivers? 4 MR. STEINER: That's correct. Those are where the 5 parties to the agreement lie above. 6 MR. SUYEYASU: So all the parties to this agreement 7 take their -- divert their water above the places from 8 where in-stream flows are required under FERC, AFRP stated 9 expressly on those rivers; is that correct? 10 MR. STEINER: Yes. With the express -- 11 MR. SEXTON: The gentleman is looking for bad men in 12 the closet. This whole line of cross-examination is 13 misstating the testimony and misstating the evidence that's 14 before the Board. We have a San Joaquin River Agreement 15 that is made up of parties other than parties who are going 16 to be providing water. 17 And this line of questioning is focusing only on 18 the parties who are providing water. And is assuming, 19 again, wrongly, based on the testimony that we received 20 yesterday that the technical committee is going to just 21 kind of rubber stamp everything that the parties who 22 provide water are going to do. It misstates the testimony. 23 It misstates the evidence. It misstates the documents 24 before the Board. 25 C.O. CAFFREY: Well, your objection is in the record, CAPITOL REPORTERS (916) 923-5447 1577 1 Mr. Sexton. The witness was starting to answer the 2 question. I think he has an answer. I'm going to overrule 3 the objection, but I'm also going to state in the record 4 that I think the Board Members have a pretty good 5 understanding of what the agreement is and what it isn't. 6 And that it goes to the Board to the determine the weight 7 of evidence when they're reviewing the entire record and 8 making their decision. 9 You had started your answer, please, continue. 10 MR. STEINER: I will have to ask -- I lost track of 11 the question. 12 C.O. CAFFREY: You want to pose the question again or 13 you want it readback, Mr. Suyeyasu? 14 MR. SUYEYASU: I think I would like it readback. 15 (Whereupon the question was readback by the Reporter.) 16 MR. STEINER: Yes. 17 C.O. CAFFREY: Everything here is linear, 18 Mr. Steiner. The Stenographer can only do one thing at a 19 time. 20 MR. SUYEYASU: Now, in running your hydrology models 21 did you make any sort of assumptions, or any consideration 22 of whether flood control releases would be made to affect 23 what the existing flow might be at Vernalis during the 24 pulse-flow period? 25 MR. STEINER: I think I already answered. Yes, it is CAPITOL REPORTERS (916) 923-5447 1578 1 part of the flow that we talked about earlier as in-stream. 2 MR. SUYEYASU: But in doing your modeling of what 3 water would be provided at Vernalis, did you -- did your 4 model consider that the parties to the agreement might 5 affect what the flood control releases would be in order 6 to -- in order to change what the existing flow would be at 7 Vernalis? 8 MR. O'LAUGHLIN: Objection. Asked and answered. 9 We've been through this question twice already. I've let 10 it go before, but it's the same question and the answer is, 11 "No, the model already has assumptions built into it in 12 regards to reservoir operations and flood control 13 releases." He did not put in -- 14 MS. KOEHLER: I have to object. Mr. O'Laughlin is 15 testifying. 16 MR. O'LAUGHLIN: Well, I'm tired of having the same 17 question asked three times. If this continues we will be 18 here for a very long time. 19 C.O. CAFFREY: Mr. Steiner, do you agree that the 20 question has been asked and answered? 21 MR. STEINER: Yes. 22 MR. SUYEYASU: I do not believe this particular 23 question has been asked and answered. I've asked similar 24 questions, but not this one. 25 MR. BIRMINGHAM: Excuse me, Mr. Chairman? CAPITOL REPORTERS (916) 923-5447 1579 1 C.O. CAFFREY: Try another -- Mr. Birmingham? 2 MR. BIRMINGHAM: I beg your pardon. 3 C.O. CAFFREY: I was going to instruct Mr. Suyeyasu 4 to try another question. I understand your concern, but 5 I'm asking you now to try another question. 6 MR. SUYEYASU: Not the same question? 7 C.O. CAFFREY: Not the same question. 8 MR. SUYEYASU: Okay. 9 C.O. CAFFREY: In other words, the question has been 10 asked and answered. 11 UNIDENTIFIED MAN: What was the answer? 12 MR. O'LAUGHLIN: Well, that would appear in the 13 transcript. 14 C.O. CAFFREY: We'd appreciate it if you have 15 something to say to stand and address the Chair. Go ahead, 16 Mr. Suyeyasu. 17 MR. SUYEYASU: I have no further questions, 18 Mr. Chairman. 19 C.O. CAFFREY: Okay. Thank you, sir. 20 Mr. Birmingham, did I overlook -- did you wish to say 21 something? 22 MR. BIRMINGHAM: No. 23 C.O. CAFFREY: All right. Thank you, sir. Okay. 24 Mr. Jackson and then after Mr. Jackson, Ms. Koehler. 25 // CAPITOL REPORTERS (916) 923-5447 1580 1 ---oOo--- 2 FURTHER RECROSS-EXAMINATION OF SAN JOAQUIN 3 RIVER GROUP AUTHORITY 4 BY REGIONAL COUNCIL OF RURAL COUNTIES 5 BY MICHAEL B. JACKSON 6 MR. JACKSON: Could you put up Exhibit 15? 7 MR. STEINER: Mr. Jackson, which page did you want to 8 see? 9 MR. JACKSON: 15, it would be Table 1, page 2 of 2, 10 "Determination of VAMP Supplemental Water in May." Excuse 11 me, it's page 15, I said that wrong. It's page 15 of 12 your -- 13 MR. STEINER: Yeah, that's it. 14 MR. JACKSON: This is page -- 15 MR. STEINER: This is page 15 of Exhibit 11. 16 MR. JACKSON: Exhibit 11. Thank you. Calling your 17 attention to the critical years, the 15 years that are 18 listed as critical, have you done a comparison of the flows 19 in critical years for the '95 plan and the San Joaquin 20 River Agreement flows? 21 MR. STEINER: At one time or another, yes. 22 MR. JACKSON: Do you have a total calculation in acre 23 feet of the difference for critical years? 24 MR. STEINER: No, I don't. 25 MR. JACKSON: You simply didn't do it, or you don't CAPITOL REPORTERS (916) 923-5447 1581 1 have it with you? 2 MR. STEINER: I don't have it with me. 3 MR. JACKSON: Okay. I'd like to call your attention 4 to the critical year in the first box in the left-hand 5 corner, 1931. Now, in that year according to your 6 simulation in terms of your step program, column six, this 7 would be a three; is that right, your numerical figure? 8 MR. STEINER: Yes. It's the current year plus the 9 two previous years. 10 MR. JACKSON: What happens in a three year to the San 11 Joaquin River Agreement? 12 MR. STEINER: San Joaquin River Agreement still 13 performs. In this particular case it creates a different 14 requirement for obligation of the San Joaquin River Group 15 folks as opposed to other types of years. 16 MR. JACKSON: All right. Now, in line seven it says 17 that there's a zero supplemental flow required? 18 MR. STEINER: Correct. 19 MR. JACKSON: And line -- excuse me -- number nine, 20 excuse me, column nine, column ten shows, again, no 21 supplemental flow; is that right? 22 MR. STEINER: That's correct. Ten is merely acre 23 foot conversion from column nine. 24 MR. JACKSON: What is the difference in acre feet 25 between the flow target of 2,000 and the existing flow? CAPITOL REPORTERS (916) 923-5447 1582 1 MR. STEINER: Looks like about 750 csf, which is 2 going to be somewhere around 40, 50,000 acre feet in a 3 month. 4 MR. JACKSON: All right. What would have been the 5 '95 Plan's minimum flow for that year? 6 MR. STEINER: I believe the minimum flow would have 7 been 3110 csf. 8 MR. JACKSON: And what, then, would be the difference 9 in the minimum flow between the San Joaquin River Agreement 10 and the '95 Plan in acre feet? 11 MR. STEINER: Add about 1100 csf to the previous 12 figure I gave you, which is another 66,000 acre feet. 13 MR. JACKSON: So the number would come to? 14 MR. STEINER: Approximately 110, 120,000 acre feet. 15 MR. JACKSON: And that would reoccur, probably not to 16 that extent, in most of the critical years, in fact, in all 17 but four? 18 MR. STEINER: If you look at column seven, look at 19 that, that's correct. 20 MR. JACKSON: Thank you. Would you put up page 27, 21 Table 3, 4 of 8 to Number 11. Now, what does this table 22 reflect? 23 MR. STEINER: As we did yesterday, this is a 24 threshold illustration of the April simulation I ran for 25 the water quality condition at Vernalis. And this table CAPITOL REPORTERS (916) 923-5447 1583 1 points out, as far as the shaded cells, illustrates when 2 the water quality objective at Vernalis was exceeded. 3 While the asterisk indicate -- let me back up. 4 The shaded areas illustrate when the water quality 5 objective at Vernalis was exceeded on an average monthly 6 basis under the current condition. While the asterisks are 7 those periods when the exceedance exists, or doesn't exist 8 after implement of the San Joaquin River Agreement as I've 9 modeled it. 10 MR. JACKSON: So that I understand it, the shaded 11 area is exceedances, the violation of the Vernalis 12 standard? 13 MR. STEINER: That's correct. 14 MR. JACKSON: And if -- 15 MR. STEINER: Under the current condition. 16 MR. JACKSON: Under the continue condition. And if 17 it has no asterisks, the San Joaquin River Agreement wipes 18 out the violation? 19 MR. STEINER: In simple terms, yes. 20 MR. JACKSON: All right. Now calling your attention 21 to October, Merced's water, their contribution wipes out 22 the October violations, does it not? 23 MR. STEINER: Yes, under the October flows for 24 Merced. 25 MR. JACKSON: Okay. Now, calling your attention to CAPITOL REPORTERS (916) 923-5447 1584 1 the month of November where none of the exceedances are 2 eliminated by the San Joaquin River Agreement, did your 3 model show how much water would be required during those 4 months to meet the standard? 5 MR. STEINER: It can be extracted from the model. 6 MR. JACKSON: For November, do you remember whether 7 or not these exceedances are a large amount, or a small 8 amount? 9 MR. STEINER: You wouldn't have to remember. You 10 could flip back a couple of pages and find out what the 11 value is. 12 MR. JACKSON: All right. To which table? 13 MR. STEINER: We need to pick a specific month. 14 Let's, for instance, take November 1940. 15 MR. JACKSON: That's a good one. 16 MR. STEINER: Go to page 25. 17 MR. JACKSON: Yes, sir. 18 MR. STEINER: Look at November 1940. 19 MR. JACKSON: Yes, sir. 20 MR. STEINER: And you will see the water quality as 21 generated in the model is 659 -- 22 MR. JACKSON: That's correct. 23 MR. STEINER: -- csf. 24 MR. JACKSON: And the standard for that month? 25 MR. STEINER: 650. CAPITOL REPORTERS (916) 923-5447 1585 1 MR. JACKSON: So it's a very small exceedance? 2 MR. STEINER: That's correct. 3 MR. JACKSON: And one could do that, and I won't to 4 save time for each of the exceedances? 5 MR. STEINER: That's correct. 6 MR. JACKSON: Thank you. Now, calling your attention 7 to the period in each year from, essentially, June to 8 September there seems to be a substantial number of 9 exceedances, correct? 10 MR. STEINER: There are quite a few there. 11 MR. JACKSON: All right. Now, we would go through 12 the same process of looking at those exceedances going back 13 to page 25 and seeing the magnitude; is that correct? 14 MR. STEINER: You could do that. 15 MR. JACKSON: All right. And from that you could, 16 then, determine how much additional water would be required 17 to meet the standards? 18 MR. STEINER: You would have to convert the TDS 19 exceedance into an additional water component. 20 MR. JACKSON: And your model is capable of doing 21 that? 22 MR. STEINER: That's correct. 23 MR. JACKSON: Did you do that? 24 MR. STEINER: It happens automatically in the model. 25 MR. JACKSON: So it would be reflected in the model CAPITOL REPORTERS (916) 923-5447 1586 1 as presented on the disk to the Board? 2 MR. STEINER: That's correct. 3 MR. JACKSON: Now, the white spaces in between the 4 gray lines are periods in which there is no exceedance? 5 MR. STEINER: That is correct. 6 MR. JACKSON: Do you remember whether or not there 7 are any years in which there is no exceedance that are 8 normal or below? 9 MR. STEINER: Normal or below what? 10 MR. JACKSON: Normal or below water years. 11 MR. STEINER: Knowing that there is a lot of white 12 area on this chart during that period, the answer is there 13 are normal and below normal year types that have no 14 exceedances during those months that you pointed to. 15 MR. JACKSON: All right. And do you have any idea of 16 how many? 17 MR. STEINER: No. 18 MR. JACKSON: But that could be determined from your 19 disk? 20 MR. STEINER: That's right. 21 MR. JACKSON: All right. Many of the areas in 22 which -- which are reflected in white, many of the years 23 were wet years, were they not? 24 MR. STEINER: I don't have a definition for "many." 25 MR. JACKSON: All right. More than 15? CAPITOL REPORTERS (916) 923-5447 1587 1 MR. STEINER: I believe there are more than 15 2 wet-year classifications of this set. 3 MR. JACKSON: All right. Were there any exceedances 4 in those wet years? 5 MR. STEINER: I highly doubt it. 6 MR. JACKSON: Now, in your modeling you modeled the 7 water available in New Melones to meet those -- to meet the 8 Vernalis standards, did you not? 9 MR. STEINER: I have modeled the entire Interim 10 Operations Plan for New Melones for which one of its 11 purposes is water quality. 12 MR. JACKSON: And has that been presented as evidence 13 in this case? 14 MR. STEINER: Yes, as a fact of those diskettes the 15 model is there. 16 MR. JACKSON: Now, can you give me a reason why the 17 exceedances are not taken care of by releases from New 18 Melones according to the model? 19 MR. STEINER: The allocation of water towards the 20 water quality components of the Interim Operations Model 21 ran out of water. 22 MR. JACKSON: And that's one of the benefits of the 23 San Joaquin River Agreement is you get additional water? 24 MR. STEINER: It wraps back into that calculation, 25 yes. CAPITOL REPORTERS (916) 923-5447 1588 1 MR. JACKSON: But not enough water in order to 2 eliminate the exceedances? 3 MR. STEINER: Not under the current Interim 4 Operations Plan. 5 MR. JACKSON: I'd like to go through -- 6 MR. STEINER: Can I follow up, not that it might not 7 be able to, there is water left in New Melones under the 8 current Interim Operations Plan with the advent of the San 9 Joaquin River Agreement that is left unallocated, 10 potentially, in this study. 11 MR. JACKSON: Glad to hear that. But the water, 12 then, is a choice, then, of the operation at New Melones 13 not to allocate the water to meet the water quality 14 standard? 15 MR. STEINER: I did not make that choice. 16 MR. JACKSON: I understand, but a choice was made? 17 MR. STEINER: Only that I did not change the 18 allocations under the existing Interim Operations Plan. 19 MR. JACKSON: So the Interim Operations Plan is the 20 restriction that keeps you from allocating this water to 21 water quality at Vernalis? 22 MR. STEINER: In the model, yes. 23 MR. JACKSON: All right. Now, calling your attention 24 to other places within the San Joaquin drainage where water 25 might be available, does the model include the water CAPITOL REPORTERS (916) 923-5447 1589 1 presently in Hetch Hetchy Reservoir? 2 MR. STEINER: Yes, it does. 3 MR. JACKSON: Could water be released from Hetch 4 Hetchy to deal with water quality at Vernalis? 5 MR. STEINER: As a physical means, yes. 6 MR. JACKSON: How much does San Francisco have 7 impounded on the Tuolumne that could -- 8 MR. FURMAN: That question is of relevancy -- 9 THE COURT REPORTER: Your name, please? 10 MR. FURMAN: John Furman, City of San Francisco. 11 We're dealing with functional equivalent in it. If he has 12 questions about Hetch Hetchy that's appropriate for II-A. 13 MR. JACKSON: I'm trying to determine whether there 14 is other water on the Tuolumne, the Stanislaus and the 15 Merced to go with the chart that would be available for 16 this to meet the standard. 17 C.O. CAFFREY: The objection is in the record. You 18 may -- you may answer the question. 19 MR. STEINER: Could you, please, re-ask the question 20 so I get the right question? 21 MR. JACKSON: How much water does the City of San 22 Francisco have impounded on the Tuolumne River? 23 C.O. CAFFREY: If you know, sir. 24 MR. BIRMINGHAM: I'm going to object to the question 25 on the grounds it's vague and ambiguous. The amount of CAPITOL REPORTERS (916) 923-5447 1590 1 water that the City of San Francisco has impounded in Hetch 2 Hetchy is going to depend on a lot of factors that 3 Mr. Jackson hadn't put in the question. 4 C.O. CAFFREY: You want to hone in your question a 5 little more finely with some factors, Mr. Jackson? 6 MR. JACKSON: How much water does the City of San 7 Francisco impound at Hetch Hetchy? 8 C.O. CAFFREY: In what period of time? 9 MR. JACKSON: In one year. 10 C.O. CAFFREY: Thank you, sir. I didn't mean to 11 testify or cross-examine myself here. 12 MR. STEINER: It varies by year within the year. 13 MR. JACKSON: All right. Let's take the year 1997. 14 MR. STEINER: That's last year. 15 MR. JACKSON: Last year, how much water did you 16 impound at Hetch Hetchy? 17 MR. STEINER: At one point we had a full reservoir. 18 MR. JACKSON: And what is that amount? 19 MR. STEINER: I believe approximately 360,000 acre 20 feet. 21 MR. JACKSON: How much of that water is released down 22 the -- or down the Tuolumne River in the course of the year 23 1997? 24 MR. STEINER: A lot of water was released, because 25 last year was a very wet year. CAPITOL REPORTERS (916) 923-5447 1591 1 MR. JACKSON: Good. How much -- 2 MR. BIRMINGHAM: Excuse me. Mr. Chairman, I'm going 3 to object and ask that that be stricken. Mr. Jackson on a 4 number of occasions introduced argument into his 5 questioning by commenting on the answers that he gets from 6 the witness. I wonder if Mr. Jackson could be asked not to 7 insert that argument into the record. 8 C.O. CAFFREY: Mr. Jackson is nodding in the 9 affirmative. So I think he's telling us that he'll try not 10 to do that. 11 MR. JACKSON: Yes, sir. 12 C.O. CAFFREY: Go ahead, Mr. Jackson. 13 MR. JACKSON: Do you have an estimate of the amount 14 of water released from Hetch Hetchy in the water year 1997? 15 MR. STEINER: I would not want to venture a guess. 16 MR. JACKSON: Is it more than 100,000 acre feet? 17 MR. STEINER: I would not want to venture a guess. 18 MR. JACKSON: Do you work for San Francisco, sir? 19 MR. STEINER: I am a consultant to San Francisco, 20 yes. 21 MR. JACKSON: Are you familiar with the Tuolumne 22 River? 23 MR. STEINER: Very familiar. 24 MR. JACKSON: What is your role with San Francisco? 25 MR. STEINER: I perform general planning functions, CAPITOL REPORTERS (916) 923-5447 1592 1 assistance in the water planning capacity. 2 MR. JACKSON: And as such in that capacity have you 3 modeled the Tuolumne River? 4 MR. STEINER: Yes, I have. 5 MR. JACKSON: Have you modeled the releases on Hetch 6 Hetchy on the Tuolumne River? 7 MR. STEINER: Yes, I have. 8 MR. JACKSON: Is there anybody else in the City of 9 San Francisco who has done the amount of modeling on that 10 river that you have? 11 MR. STEINER: In terms of planning models, it's hard 12 to believe so; as far as operational models, yes. 13 MR. JACKSON: All right. And in terms of operational 14 models, who would it be? 15 MR. STEINER: The operation staff of Hetch Hetchy 16 Water and Power Department. 17 MR. JACKSON: For planning purposes you're the one 18 they have? 19 MR. STEINER: Yes. 20 MR. JACKSON: So how much water could be released 21 from Hetch Hetchy if it was not limited in any fashion? 22 MR. STEINER: That was a very vague question. 23 C.O. CAFFREY: Yeah, I'm not sure -- we allow wide 24 discretion here for relevancy. 25 MR. JACKSON: Well, the relevance -- CAPITOL REPORTERS (916) 923-5447 1593 1 C.O. CAFFREY: I guess my reaction to that is as much 2 as there is behind the reservoir. 3 MR. JACKSON: That's the only answer I wanted. 4 C.O. CAFFREY: I think that is so -- that's such 5 common knowledge that it really is irrelevant. 6 MR. JACKSON: Well -- 7 C.O. CAFFREY: So I just ask you, Mr. Jackson, to 8 give us a hint where you're headed once in a while. 9 MR. JACKSON: Okay. I'm going down the river to the 10 next dam. What is the next dam on the river? 11 C.O. CAFFREY: Mr. O'Laughlin? 12 MR. O'LAUGHLIN: Mr. Chairman, I just have to say, I 13 have to agree -- and I've been sitting here listening to 14 this, if all these questions are going to be: What are the 15 impoundments? Those impoundments are in the record. And 16 if the question is: How much they can release? It's 17 everything within the reservoir. That's fine, let's move 18 on. Let's get to something that's relevant to the 19 testimony that's been presented by Mr. Steiner. 20 C.O. CAFFREY: Do you just want a stipulation from 21 the witness, Mr. Jackson, that -- 22 MR. JACKSON: I would like a stipulation in the 23 record about the amount of water that San Francisco has at 24 its command on the Tuolumne River and I will move right 25 along, that includes I guess all of the San Francisco -- CAPITOL REPORTERS (916) 923-5447 1594 1 C.O. CAFFREY: I believe the witness, I believe it 2 would be satisfactory -- 3 MR. FURMAN: Objection. 4 C.O. CAFFREY: Stop me if I'm wrong, Ms. Leidigh, all 5 the witness has to say is it's a matter of public record. 6 If he knows the answer, he gives it, if he doesn't know 7 it's a matter of public record; is that correct? Do you 8 have any further advice? 9 MS. LEIDIGH: Yeah. My only advice is really to 10 limit it. If he knows the answer, he should answer. And 11 if -- I don't think it adds anything, that it is a matter 12 of public record, but it is. 13 C.O. CAFFREY: You do not have to know the answer. I 14 mean do the best you can and move on. 15 MR. STEINER: The natural -- 16 C.O. CAFFREY: I'm sorry, the gentleman from San 17 Francisco had an objection -- or had a statement. Excuse 18 me, I didn't mean to preempt you. 19 MR. FURMAN: Mr. Jackson asked about our storage 20 reservoirs in the peninsula. If he answers the question I 21 want it limited to the Hetch Hetchy system. 22 MR. JACKSON: I would like that, too. I'm not 23 talking about the reservoirs on the coast. 24 C.O. CAFFREY: Thank you, sir. Limit it to the 25 tributaries in question. CAPITOL REPORTERS (916) 923-5447 1595 1 MR. STEINER: The natural flow records of the 2 Tuolumne River are a public record. And the points at 3 which our system controls it is also known in the public. 4 You can find those numbers. I would not want to venture a 5 relative separation of the total number of the river 6 without other information in front of me. 7 MR. JACKSON: All right. Do you have any idea 8 whether or not the Hetch Hetchy portion, the Tuolumne River 9 portion of the storage contains enough water that if it 10 were released would meet -- would bring the Vernalis 11 standards back into compliance? 12 MR. STEINER: Since I did not quantify the amount of 13 water it's going to take, no, I could not answer that 14 question. 15 MR. JACKSON: All right. Mr. Steiner, calling your 16 attention to page 11, your modeling results in your Exhibit 17 11 -- Exhibit 11, page 11. 18 MR. STEINER: I'm there. 19 C.O. CAFFREY: He's 6'5." While Mr. Jackson was 20 reading, we had to raise the bridge for Mr. Brown to leave 21 the room. 22 MR. JACKSON: Calling your attention to the last 23 paragraph on page 11 of Exhibit 11, "During wet and below 24 normal years flows may be reduced during winter due to 25 refill operations." CAPITOL REPORTERS (916) 923-5447 1596 1 MR. STEINER: Yes. 2 MR. JACKSON: How much will the flows be reduced in 3 your estimation? 4 MR. STEINER: First, I've noticed on this as part of 5 this errata process we'll have to deal with, that should 6 be, "During wet and above normal years." It is a 7 typographical error -- 8 MR. JACKSON: All right. Thank you. 9 MR. STEINER: -- on my part. In terms of answering 10 the question, as far as the absolute number, it varies in 11 that you get those results out of the diskette information 12 that I provided. 13 MR. JACKSON: That was going to be my next question. 14 It's in the diskette? 15 MR. STEINER: That's correct. 16 MR. JACKSON: Mr. Steiner, did you take -- I believe 17 that your list of qualifications indicates that you're 18 familiar with the Tuolumne River FERC settlement? 19 MR. STEINER: Yes, I am. 20 MR. JACKSON: Did FERC make any analysis of the 21 amount of water that might be San Francisco's proportionate 22 share of meeting Delta conditions? 23 MR. STEINER: I do not believe so. 24 MR. JACKSON: Was that specifically agreed to by the 25 settling parties that this would not be -- that the FERC CAPITOL REPORTERS (916) 923-5447 1597 1 flows were not a decision about what was necessary in the 2 Delta? 3 MR. STEINER: I don't think it was a matter of 4 agreement. That was what FERC chose to do. 5 MR. JACKSON: Thank you, sir. 6 C.O. CAFFREY: Thank you, Mr. Jackson. Ms. Koehler. 7 MS. KOEHLER: Mr. Chairman, I know it's a little 8 early to break for lunch, but I found that several of the 9 questions this morning answered a great many of my 10 questions. And if we could break now I would have an 11 opportunity to consolidate my cross-examination and, 12 perhaps, save us some time this afternoon. 13 C.O. CAFFREY: Any objection on the part of the Board 14 Members? This is the last cross-examiner. 15 MEMBER FORSTER: No. 16 C.O. CAFFREY: Let's go ahead and do that. The only 17 hesitation I had was if we come back early, it makes for a 18 long afternoon. But anyway, it's 20 to 12 and I'm 19 reluctant to take a hour and forty-minutes, we'd lose our 20 fine tuning. Let's be creative, let's come back at ten 21 minutes to 1:00 that's an hour and ten minutes. 22 MS. KOEHLER: Thank you. I very much appreciate it. 23 (Luncheon recess.) 24 ---oOo--- 25 CAPITOL REPORTERS (916) 923-5447 1598 1 WEDNESDAY, JULY 29, 1998, 12:50 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Good afternoon, everyone. We are back 5 on the record. And we are at the point of 6 cross-examination by Ms. Koehler. Good afternoon. 7 ---oOo--- 8 FURTHER CROSS-EXAMINATION OF SAN JOAQUIN 9 RIVER GROUP AUTHORITY 10 BY SAVE THE SAN FRANCISCO BAY ASSOCIATION 11 BY CYNTHIA KOEHLER 12 MS. KOEHLER: Good afternoon, Mr. Chairman. Thank 13 you. I'm going to be brief. I really just want to clarify 14 some things about monitors. So I hope you will bear with 15 me. Just to clarify testimony that I guess you made 16 yesterday and referred to a little bit today: 17 You have not compared -- you were not asked to 18 compare the VAMP flows to the flows required by the 1995 19 Water Quality Control Plan itself. And I was looking at 20 your page five and six of your testimony where you have 21 your modeling. 22 MR. STEINER: As I spoke to yesterday, I did not make 23 a model run trying to make a full compliance run. However, 24 I did do some comparisons to the standards that are 25 published in the 1995 plan. CAPITOL REPORTERS (916) 923-5447 1599 1 MS. KOEHLER: And where is that located at? Like I 2 say, I'm looking at your modeling runs. And you did not -- 3 MR. STEINER: No, it was post-analysis. 4 MS. KOEHLER: I see. Okay. Then, are you offering 5 testimony today and yesterday as to whether the VAMP flows 6 would be equivalent to flows required by the 1995 standard? 7 MR. STEINER: As I did yesterday's testimony, they're 8 obviously not the same numeric values as the 1995 plan. 9 They just -- they are not the same numbers. 10 MS. KOEHLER: Okay. 11 MR. STEINER: And so it wasn't a matter of just the 12 words, "Was it equivalent?" My task was to provide the 13 biologists information regarding the comparison of flows 14 with the plan and also what would be the implied exports 15 associated with the VAMP. And from there they would make 16 their judgments regarding equivalency. 17 MS. KOEHLER: Okay. You were not asked and you did 18 not compare -- I believe once again, looking at what you 19 said a while ago as you did, VAMP flows to the flows 20 identified in the 1995 AFRP working paper? 21 MR. STEINER: I did not look at the AFRP working 22 paper in comparison. 23 MS. KOEHLER: Okay. And just to establish the 24 boundaries of that you are testifying to, you are not 25 offering testimony, then, as to how VAMP flows would CAPITOL REPORTERS (916) 923-5447 1600 1 compare to the flows identified in the 1995 AFRP working 2 paper? 3 MR. STEINER: I was not asked to compare that. 4 MS. KOEHLER: Okay. You testified earlier today that 5 you are familiar with the establishment of environmental, 6 or fish flows on other California and, perhaps, other 7 rivers outside of California, generally? 8 MR. STEINER: Yes. 9 MS. KOEHLER: Okay. And is it fair to say that flow 10 targets required in any one year in -- on these other 11 rivers, are required to, in general, to -- let me start 12 again. 13 Is it fair to say that flow targets required in 14 any one year are tied to some type of hydrological 15 determination regarding water conditions on a particular 16 stream in that year as a general matter? 17 MR. STEINER: As a general matter the options are 18 quite broad. 19 MS. KOEHLER: Is that a "no"? 20 MR. STEINER: But in certain streams there are tied 21 hydrologic requirements. 22 MS. KOEHLER: Are environmental requirements -- are 23 environmental flow requirements ever not tied to 24 hydrological determinations of water conditions on a 25 particular stream in a particular year? CAPITOL REPORTERS (916) 923-5447 1601 1 MR. STEINER: I guess if it was -- the answer would 2 be, yes, because you could see a single schedule for a 3 stream for all year types. So it would be type nothing, 4 but something else. 5 MS. KOEHLER: I see. And are you familiar with such 6 a situation? 7 MR. STEINER: I couldn't -- 8 MS. KOEHLER: Can you identify one for us? 9 MR. STEINER: I couldn't cite you one, but I believe 10 I'm aware from historical knowledge that there's got to be 11 one stream in California that has one single flow schedule 12 in it. 13 MS. KOEHLER: Okay. Is it -- I'm not sure what the 14 answer is. What I'm trying to get to is: Is it generally 15 the case in your experience that you can testify to here 16 today that environmental flow requirements are generally 17 tied to some determination of water conditions on a stream 18 in a single year? 19 MR. STEINER: Yes. 20 MS. KOEHLER: Okay. I think you testified in 21 response to earlier questions -- 22 C.O. CAFFREY: Excuse me, Cynthia, could you pull the 23 mic down a little bit. Maybe it doesn't -- that's better. 24 Thank you. 25 MS. KOEHLER: You, obviously, don't have enough short CAPITOL REPORTERS (916) 923-5447 1602 1 people standing here. I think you testified that you are 2 unaware of any other circumstances in which environmental 3 flows are tied to a determination of existing flows as that 4 termed is used in the San Joaquin River Agreement? 5 MR. STEINER: Yes, I testified to that. I did 6 provide the illustration where the concept is not entirely 7 foreign to the water world. 8 MS. KOEHLER: Right, which I'm getting to. You, 9 then, said that the same type of approach is used in 10 connection with water purchase agreements? 11 MR. STEINER: I'm aware of those situations, yes. 12 MS. KOEHLER: Okay. Is it your testimony, then, that 13 the task of forecasting hydrological conditions for a water 14 purchase agreement is the same as making that determination 15 in the concept of compliance with the water quality 16 standard? 17 MR. STEINER: I didn't testify to that. 18 MS. KOEHLER: I'm asking, because that seemed to be 19 the implication and that's why I'm giving you the 20 opportunity to clarify your testimony now. 21 MR. STEINER: It could be appropriate to tie it to 22 existing flow. 23 MS. KOEHLER: That's not my question. Let me try 24 again. My question is: Whether you're suggesting that the 25 task of determining hydrological conditions -- it is your CAPITOL REPORTERS (916) 923-5447 1603 1 testimony that the task of forecasting hydrological 2 conditions for the purpose of a water purchase agreement is 3 the same as determining compliance with the water quality 4 standard? 5 MR. O'LAUGHLIN: Objection. Vague and ambiguous as 6 to "water quality standard." 7 C.O. CAFFREY: You understand the question, 8 Mr. Steiner? 9 MR. STEINER: I believe I can frame what I believe is 10 the question to answer. 11 C.O. CAFFREY: All right. I'm going to allow you to 12 answer. Go ahead. 13 MR. STEINER: Is whether the rationales for a water 14 purchase agreement, the needs for a water purchase 15 agreement are akin in the context of establishing existing 16 flow relationship is the same as an in-stream flow 17 requirement? And it wasn't my purpose to say that, but it 18 is just a fact that existing flow trigger could be an 19 appropriate mechanism to establish in-stream flows. 20 MS. KOEHLER: Okay. Is it true, in your experience, 21 that the forecast of water conditions on which 22 environmental flow requirements are based are generally not 23 provided by the parties required to comply with such flow 24 requirements? 25 MR. STEINER: I'd hardly say that. We have to rely, CAPITOL REPORTERS (916) 923-5447 1604 1 for instance, on DWR forecasts to establish in-stream flow 2 requirements on some of the in-stream flows. I consider 3 DWR as being a water purveyor in this state. 4 MS. KOEHLER: Okay. Other than DWR and the Bureau of 5 Reclamation, would you answer my question with regard to 6 parties other than DWR and the Bureau of Reclamation? 7 MR. STEINER: I wouldn't think it is inappropriate. 8 Those are usually the folks with the expertise to forecast 9 unimpaired runoff. 10 MS. KOEHLER: I didn't ask whether you felt it was 11 inappropriate. I asked whether it was in general -- it was 12 generally the case that the parties required to comply with 13 flow requirements are also the parties that provide the 14 forecasts other than the Bureau and DWR? 15 MR. STEINER: Yes, I think speaking for the Tuolumne 16 River the operators are in the room determining that. 17 MS. KOEHLER: The operators are in the room 18 determining the forecast? 19 MR. STEINER: Yes. 20 MS. KOEHLER: I guess I'm confused. And, perhaps, 21 you can elicit -- aluminate this. It was -- is it not the 22 case, then, that it's the general manner of forecast for 23 use in determining annual and minimum flow requirements are 24 provided by the forecast hydrologic department of various 25 state and federal agencies, for example, the folks that CAPITOL REPORTERS (916) 923-5447 1605 1 prepare -- 2 THE COURT REPORTER: Okay. You're going to have to 3 slow down. 4 C.O. CAFFREY: I'm sorry, I couldn't keep up with the 5 question either. 6 MS. KOEHLER: I'm so sorry. I apologize, it's too 7 much coffee at lunch. Isn't it the case, as a general 8 matter, that forecasts for use in determining annual 9 environmental flow requirements are provided by the 10 forecast hydrologic departments of various state and 11 federal agencies, as an example, the folks who give us -- 12 who prepared the Department of Water Resources Bulletin 13 120? 14 MR. STEINER: Yes, generally, that is where we are 15 relying upon forecast and information. 16 MS. KOEHLER: Okay. And is it your testimony that 17 the same folks who prepare Bulletin 120 are the same people 18 who operate the State Water Project? 19 MR. STEINER: Now, we're getting into the discussion, 20 "the same people." It's the same organization. 21 MS. KOEHLER: Okay. Can you identify for us, Dan, 22 any other regulatory setting where the baseline -- where 23 the baseline hydrological forecast determining annual 24 environmental flow requirements are based on forecast 25 provided by water diverters rather than official CAPITOL REPORTERS (916) 923-5447 1606 1 third-party forecasters? 2 MR. O'LAUGHLIN: Objection. Vague and ambiguous as 3 to "official third-party forecasters." 4 C.O. CAFFREY: Do you understand the question, 5 Mr. Steiner? 6 MR. STEINER: In how I'm interpreting it, I believe I 7 understand it. 8 C.O. CAFFREY: Why don't you answer it and explain 9 your interpretation as part of your answer? 10 MR. STEINER: Are the operators -- do I know of 11 anywhere that the in-stream standard is established from a 12 forecast in which the operators are the ones to determine 13 the forecast? Is that a correct -- 14 MS. KOEHLER: That's a lovely paraphrase of my 15 question. Thank you. 16 MR. STEINER: I do not directly know of one that it 17 is solely the forecast of the operator to determine a 18 forecast to provide the in-stream flow. 19 MS. KOEHLER: Okay. Moving on, you testified earlier 20 I think that VAMP is a stair-step approach to meeting water 21 quality standards. And is it fair -- again, I'm just 22 trying to clarify your earlier testimony, that small 23 variations in the determination of existing flow would 24 affect the target flow significantly? 25 MR. STEINER: I lost track of what the question was, CAPITOL REPORTERS (916) 923-5447 1607 1 I'm sorry. 2 MS. KOEHLER: Okay. Is it fair to say that VAMP is a 3 stair-step approach to meeting the standards so that a 4 small increment on the existing flow side changes where you 5 wind up on the target flows and there are steps between the 6 target flows? 7 MR. STEINER: That can occur. That is a very likely 8 and very low frequency, because -- 9 MS. KOEHLER: I didn't ask if it could occur. I just 10 asked if that is how VAMP is structured. 11 MR. STEINER: I don't think -- that's an 12 overgeneralization of how it's structured. The structure 13 of the VAMP could lead that a small change of unanticipated 14 existing flow could change from where you go for the target 15 flow, that could be a higher target or a lower target, that 16 could occur. But it would only occur in those instances 17 where you're right at that threshold. 18 MS. KOEHLER: I understand, thank you for clarifying 19 that. I think you also testified -- okay. You're 20 basically saying, and I think you said earlier and I just 21 want to make sure I understand it, that there is very 22 little room to manipulate the existing flow determination. 23 Is that a fair summary? 24 MR. STEINER: I don't think I testified to that in 25 the first place. CAPITOL REPORTERS (916) 923-5447 1608 1 MS. KOEHLER: Well, that's why I'm asking. 2 MR. STEINER: I don't think there is much room to 3 manipulate the conditions on existing flow to affect the 4 target flow. 5 MS. KOEHLER: Okay. I think you testified, 6 specifically, that there is no one party to the San Joaquin 7 River Agreement downstream of the three compliance points; 8 is that correct? 9 MR. STEINER: As far as those that are providing flow 10 for the VAMP target flow, for instance, South San Joaquin, 11 Oakdale, Merced, Modesto, and Turlock their diversion 12 points, if not entirely, the huge majority of them as far 13 as what they affect as far as diversions for their district 14 occur above the control points. 15 MS. KOEHLER: Okay. Can we see your Exhibit 11.3. I 16 just want to clarify -- this is the map, I think, that you 17 provided today. So the Exchange Contractors are 18 downstream. Am I understanding this correctly? 19 MR. STEINER: They are on the main stem of the San 20 Joaquin River. 21 MS. KOEHLER: Okay. And I want to make clear in 22 deference to an earlier statement, because I'm really not 23 interested in motives. I'm really just trying to 24 understand what's physically possible here. Is it -- is it 25 feasible -- is it possible for the Exchange Contractors to CAPITOL REPORTERS (916) 923-5447 1609 1 affect the calculation of accretions and depletions in the 2 determination of existing flow? 3 MR. STEINER: I think seeing that they are 4 hydrologically connected to the main stem there is some 5 potential, yes. 6 MS. KOEHLER: Okay. And, also, in response to an 7 earlier question, you agree that in theory the various 8 technical committees set up by the San Joaquin River 9 Agreement could select, in any one year, the pulse-flow 10 period forecast to have the lowest existing flow for that 11 year. Do you recall that testimony? 12 MR. STEINER: Yes, I recall that testimony. 13 MS. KOEHLER: Okay. You, then, testified that such a 14 choice would not necessarily result in lower target flows 15 for that period. Do you recall that testimony? 16 MR. STEINER: I recall that. 17 MS. KOEHLER: I was confused by that. Under what 18 circumstances would lower -- would a determination of lower 19 existing flows not result in lower target flows? 20 MR. STEINER: Well, if it fell within the range that 21 was heading to and part of the flow. For instance, if the 22 April Howard's flow forecast was 3350 csf, the target flow 23 is 4450. If the May existing flow was forecast to be 24 3250 csf, it would still have a target flow of 4450 csf. 25 MS. KOEHLER: Okay. I have no further questions. CAPITOL REPORTERS (916) 923-5447 1610 1 Thank you. 2 C.O. CAFFREY: Thank you, Ms. Koehler. Any questions 3 from the staff? 4 MR. HOWARD: I had a few clarifying questions? 5 C.O. CAFFREY: Mr. Howard. 6 ---oOo--- 7 FURTHER CROSS-EXAMINATION OF SAN JOAQUIN 8 RIVER GROUP AUTHORITY 9 BY STAFF 10 MR. HOWARD: My first question had to do with the 11 operating criteria that were incorporated into the three 12 model studies that you did. I read your testimony and I 13 listened and I'm still a little confused. And I'd like to 14 make sure that I understand. What I would like to do is 15 just run through a summary on how I think you set the 16 operating criteria on the San Joaquin River system and, 17 then, ask you to tell me whether or not my understanding is 18 accurate. 19 Your first study was in the 1994 Bay-Delta Accord 20 setting, is the way it's characterized. In this setting 21 you had the Interim Plan of Operations for the Stanislaus 22 and you had the 1994 operating criteria on the Merced and 23 Tuolumne, as I understand it. And that there was no other 24 attempt to try to meet the 1994 Bay-Delta Accord except for 25 the criteria for Vernalis that were in the Interim Plan of CAPITOL REPORTERS (916) 923-5447 1611 1 Operations. 2 In the second study, the one you characterized as 3 the current study -- 4 C.O. CAFFREY: Excuse me, Mr. Howard, if you throw, 5 "Is that a correct" in there you'd be a lawyer. 6 MR. HOWARD: I'm going to run through all three of 7 these and ask if all of them are correct at the same time. 8 C.O. CAFFREY: You might try, "Is that correct," 9 after each one. 10 MR. HOWARD: Is that correct? 11 MR. STEINER: Mr. Howard, the first assumptions you 12 gave regarding my 1994 Bay-Delta Accord setting are 13 absolutely correct. 14 MR. HOWARD: Okay. In the second one, the one you 15 characterize as the "current setting," the only change you 16 made is you included the recent FERC agreement on the 17 Tuolumne? 18 MR. STEINER: You are, again, correct. 19 MR. HOWARD: And on the third one the only change 20 that you made is that you added the supplemental flows for 21 the San Joaquin Agreement? 22 MR. STEINER: Again, correct. 23 MR. HOWARD: All right. Thank you. As I understand 24 the testimony you gave regarding the rule curve that you 25 developed for Lake McClure, specifically, you did develop a CAPITOL REPORTERS (916) 923-5447 1612 1 rule curve for Lake McClure in order to decide how much 2 water needed to come from reductions in deliveries and how 3 much from storage. And that you assumed for New Don Pedro 4 that all water was released from storage, is that correct, 5 to meet the supplemental VAMP flows? 6 MR. STEINER: Yes, expect for from the Tuolumne 7 River, it wasn't necessarily from storage, it was from 8 inflow to Don Pedro. 9 MR. HOWARD: Yes, fine. Did you check that -- those 10 assumptions, the rule curve on Lake McClure and the 11 assumption regarding bypass, or releases from storage from 12 New Don Pedro with the operators of those reservoirs? 13 MR. STEINER: I have been performing studies for the 14 Tuolumne River for quite some time and planning studies. 15 And they are generally consistent with the work that we do 16 within the Tuolumne River basin. The Merced, I consulted 17 directly with their consultants who are doing their 18 planning studies. And they are, also, in confirmation with 19 the concepts that they are using. 20 MR. HOWARD: So your opinion is that the way you 21 decided to operate to achieve these objectives is a 22 realistic characterization of how the operators might, 23 actually, choose to meet the objectives? 24 MR. STEINER: That's correct. 25 MR. HOWARD: I'm going to refer briefly to Exhibit CAPITOL REPORTERS (916) 923-5447 1613 1 1-D which is the revised Draft EIR for the proceeding. We 2 had an operation study that was incorporated into the Draft 3 EIR that represented the operation associated with the San 4 Joaquin River Agreement. That was referred to as Flow 5 Alternative 8 in the Draft EIR. Are you aware of this 6 study? 7 MR. STEINER: Yes, I am. 8 MR. HOWARD: In this one instead of using SANJASM and 9 PROSIM as you did, we used DWR PROSIM, the Department of 10 Water Resources ran the model for us. Have you had a 11 chance to read the operating criteria that were 12 incorporated into this DWRSIMS study? 13 MR. STEINER: Prior to running the DWR study I was in 14 consultation with the DWR modelers in an effort to explain 15 the operation of the San Joaquin River Agreement and the 16 assumptions that would go into their model. I proceeded 17 with that consultation up to the time that they ran the 18 study. So as far as I know the methodology that DWR is 19 providing within your Alternative 8 is consistent with what 20 we have done. 21 MR. HOWARD: Have you had the opportunity to review 22 the results of the DWRSIMS study? 23 MR. STEINER: I have not, yet, had the time to review 24 thoroughly the results of Alternative 8 with the 25 application of the San Joaquin River Agreement other than a CAPITOL REPORTERS (916) 923-5447 1614 1 quick review of your addendum, or amended Draft EIR 2 chapters. 3 MR. HOWARD: Okay. Just one more question, 4 Mr. Suyeyasu and Ms. Koehler asked you if you knew of any 5 standards based on any existing flow conditions. Was your 6 testimony that you aren't aware of any? 7 MR. STEINER: I do not know of any specific in-stream 8 flow requirement as an agreement among parties that is 9 directly on the approach that we are doing in the San 10 Joaquin River Agreement. 11 MR. HOWARD: Are you aware of the methodology that's 12 used to establish the X2 standard in the Bay-Delta 1995 13 Plan? 14 MR. STEINER: Yes, I am. 15 MR. HOWARD: Are there similarities between that 16 methodology and a methodology in which you're using 17 existing flow criteria to set the standards? 18 MR. STEINER: In some mathematical context it appears 19 it is. 20 MR. HOWARD: Thank you. That was all. 21 C.O. CAFFREY: Thank you, Mr. Howard. Anything else 22 from the staff? Anything from the Board Members? 23 Mr. Stubchaer. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 1615 1 ---oOo--- 2 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 3 BY THE BOARD 4 C.O. STUBCHAER: Mr. Steiner, Mr. Brown had to leave 5 for a while, but he left me a couple of questions to ask 6 you. And he recalls you saying that you could come up with 7 a hundred options to conserve water. Do you recall saying 8 that? 9 MR. STEINER: I don't recall my testimony being that. 10 I believe the question at that point was: Do you have 11 alternative ways in which -- could you come up with 12 alternative ways of meeting the flow requirement at 13 Vernalis, whichever standard that might be? At which I'm 14 responding that we know that the San Joaquin River 15 Agreement is one such methodology. 16 C.O. STUBCHAER: Did you testify at all on water 17 conservation? 18 MR. STEINER: I did not. 19 C.O. STUBCHAER: Okay. Perhaps, this is from another 20 witness then. That negates the follow-on question, but 21 there's another question. And that has to do with the 22 term, "real water," or "new water." And he was wondering 23 if you could comment on the supplemental water that would 24 be provided under the San Joaquin River Agreement as to how 25 that represents new water that wouldn't, otherwise, be in CAPITOL REPORTERS (916) 923-5447 1616 1 the system? 2 MR. STEINER: First, I have to start with there are, 3 in my mind, several different definitions of "real water." 4 And whether they apply to this particular arrangement, or 5 this proposal, I would not know how to match whose 6 definition to which. 7 In the case of the studies that we have performed, 8 the studies indicate, for instance, that we need reduction 9 in surface water diversions by Merced Irrigation District. 10 That -- that's -- that analysis, that statement stops at 11 the head gates. As far as how the district would cope, or 12 the farmers would cope with that situation, I cannot 13 address. As far as -- that could be one measure of real 14 water if you wanted -- some people have looked at it that 15 way before in that it stopped a surface water diversion. 16 Alternatively, we have in our analysis that we are 17 risking carryover storage. And, although, Mother Nature 18 may make that up for you in another year, the fact that you 19 are carrying risk into a period that you don't know when 20 it's going to come out of it it could lead to, again, 21 additional surface water delivery reductions. But 22 nonetheless the risk of being lower is real and would go 23 into the decision making process of water allocations the 24 following year. 25 In terms of -- again, Mr. Stubchaer, I'm not CAPITOL REPORTERS (916) 923-5447 1617 1 trying -- there is not a quantification to your answer, 2 because I'd have to have a much finer definition of how you 3 define "real water." But in terms of: Is there an impact 4 by the proposed agreement? The answer is, yes, either 5 through risks, or real changes in operations that could 6 lead to less water delivered to folks, or at least putting 7 water in a pattern different than they normally would and 8 for the benefit of the environment. 9 C.O. STUBCHAER: Okay. I thank you and Mr. Brown 10 thanks you. 11 C.O. CAFFREY: Anything else from the Board Members, 12 or Mr. Pettit? All right. Do you wish to offer any 13 redirect, Mr. O'Laughlin? 14 MR. O'LAUGHLIN: Mr. Caffrey, we have no redirect of 15 Mr. Steiner. 16 C.O. CAFFREY: No redirect. All right, then, at this 17 point do you wish -- I believe that this completes your 18 presentation; is that correct? 19 MR. O'LAUGHLIN: On behalf of the San Joaquin River 20 Group Authority, that's correct. But what I was thinking 21 of doing is the Department of the Interior has one more 22 witness that they would like to offer at this time, 23 Mr. John Burke. And after Mr. Burke is done I thought we 24 could, then, submit our exhibits into evidence, if that was 25 agreeable to the Board. CAPITOL REPORTERS (916) 923-5447 1618 1 C.O. CAFFREY: So the short version is there is 2 one -- as far as this composite presentation, there is one 3 additional witness? 4 MR. O'LAUGHLIN: One additional witness, Mr. Caffrey. 5 C.O. CAFFREY: All right. Thank you. 6 MR. O'LAUGHLIN: Thank you. 7 C.O. CAFFREY: Mr. Brandt. 8 ---oOo--- 9 DIRECT TESTIMONY OF THE DEPARTMENT OF THE INTERIOR 10 OF JOHN BURKE 11 BY ALF BRANDT 12 MR. BRANDT: Thank you, Mr. Caffrey. I call 13 John Burke. 14 C.O. CAFFREY: Sir, have you been sworn in? 15 MR. BURKE: Yes, I have. 16 C.O. CAFFREY: Okay. Thank you. 17 MR. BRANDT: Sir, could you state your name for the 18 record, please? 19 MR. BURKE: Name is John Burke. 20 MR. BRANDT: Mr. Burke, what do you do for a living? 21 MR. BURKE: Hydraulic Engineer with the Bureau of 22 Reclamation, Central Valley Operations. 23 MR. BRANDT: How long have you been with the Bureau? 24 MR. BURKE: Been with the Bureau of Reclamation for 25 21 years. CAPITOL REPORTERS (916) 923-5447 1619 1 MR. BRANDT: I placed in front of you -- I placed in 2 front of you Department of the Interior Exhibit 3. Would 3 you take a look at that. Particularly, I'd like to point 4 your attention to Exhibit 3-A. Is Exhibit 3-A an accurate 5 statement of your qualifications? 6 MR. BURKE: Yes, it is. 7 MR. BRANDT: Could you, please -- is Exhibit 3, as a 8 whole, an accurate reflection of your testimony here today? 9 MR. BURKE: Yes, it is. 10 MR. BRANDT: Would you, please, provide a summary of 11 that testimony? 12 MR. BURKE: Thank you. I'll try to summarize my 13 testimony concisely. As I said, I've worked in the Central 14 Valley Operations Office for the last 13 years now. And 15 for the last four years I've had the role of providing 16 coordination and oversight in the planning of how the 17 Bureau of Reclamation meets the San Joaquin River flow 18 objectives as they have variously evolved over the last 19 several years. 20 And this year I served as a role of lead 21 coordinator in the hydrology group that's described in the 22 San Joaquin River Agreement. What I'd like to do is 23 describe some of the processes that we went through in 24 attempting to implement the San Joaquin River Agreement 25 this year, in 1998, under the very extremely wet hydrologic CAPITOL REPORTERS (916) 923-5447 1620 1 conditions that existed. 2 As I think everybody here is well-aware, 1998 was 3 an extraordinary year. Beginning in January we were in the 4 grips of El Nino and we experienced sequences of storm 5 events that very early on in the year assured us, pretty 6 well assured us that we were going to have what we would 7 categorize as a wet water year in the Central Valley, 8 including the San Joaquin River basin. 9 Along the lines of how we responded to that in 10 folding it into our plans for meeting San Joaquin River 11 requirements that we expected might exist, the Bureau of 12 Reclamation had planned, as we had addressed last November, 13 we had planned to implement the VAMP objectives during this 14 spring. And as early as February of this year we had 15 included in our forecasts of operation in our water 16 allocation decisions in our plans as to how we would meet 17 what we perceived as the requirements to implement VAMP. 18 Part of the process that we went through in 19 planning for this included the development of some 20 specialized forecasting tools and really some opening up of 21 some new coordination avenues that we have only begun to 22 use in the last several years. The hydrology subgroup 23 that's described in the San Joaquin River Group Agreement 24 Appendix B, calls for the beginning of coordination 25 activities by the hydrologist subgroup as early as CAPITOL REPORTERS (916) 923-5447 1621 1 February. Indeed, we did begin to exchange information so 2 that we could identify and begin to plan for how we would 3 implement meeting the VAMP flow objectives in 1998. 4 Early in the year the methodology that we employed 5 to identify what the flows would be and how we would go 6 about implementing these operations to meet the flow 7 objectives, focused on really identifying only monthly 8 average quantities of flow. And for the months of April 9 and May when the pulse flow that we know is going to occur, 10 we resolved those months into half month periods. 11 The assumption going into this year -- and I think 12 it's consistent with the past several years, is that the 13 pulse-flow period will be from mid April to mid May, 31 14 days in duration. And, of course, allowing for the 15 possibility that that can be time shifted either early, or 16 late depending on the determination that's going to be made 17 later in the year regarding the maximum effectiveness of 18 the -- of the pulse-flow period. However, we had operated 19 on the assumption that the pulse-flow period would begin in 20 mid April and planned accordingly. 21 During the month of March we held a series of 22 three coordination meetings where we visited such subjects 23 as going over the forecasted water supplies, reservoir 24 operations plans, Bureau of Reclamation's water allocation 25 plans and export plans, going over the forecasting tools CAPITOL REPORTERS (916) 923-5447 1622 1 and some of the data assumptions that we would need to make 2 to arrive at an agreed upon forecasted flow that would, 3 then, become the so-called "existing flow forecast" for 4 purposes of determining what the target flow objectives 5 would be. 6 And, again, early in the stages of this process we 7 were using either monthly or half monthly flow quantities. 8 We weren't attempting to resolve flows down to, say, daily 9 schedules as needs to be done later in the process when 10 operations's decisions need to be made. 11 At the same time as we were holding these 12 coordination meetings, we happened to be in the month of 13 March, what was probably the only prolonged dry spell that 14 we had during this year. And going into the month of March 15 it really appeared as though this year was going to be so 16 wet that nature would take its course and there would be 17 little decision making done except that which was required 18 to meet the Corps of Engineers' flood control requirements. 19 However, as the month progressed and the flows in 20 the San Joaquin diminished, it began to look possible that, 21 perhaps, it would be one of those years where we might be 22 able to still meet the maximum flow objective called for by 23 the experimental criteria. And one of the big questions 24 that existed was, well, postulating this dry period 25 continues, we have still a lot of flow in the San Joaquin CAPITOL REPORTERS (916) 923-5447 1623 1 River. And everyone was wondering whether it was going to 2 be possible to install the head of Old River barrier. 3 As a rule-of-thumb, we think that we need a period 4 of lower flow of duration of, say, probably five to seven 5 days flows in the range of 5,000 csf in order to 6 effectively install the barrier. And the question had to 7 be answered whether there could be measures taken to 8 coordinate operations to affect flows in the lower river 9 such that the barrier could be installed. 10 Later in the month of March, that question became 11 moot. We got back into our wet pattern and pretty soon 12 flows had reversed course. They were no longer receding, 13 they were increasing. And our wet water year became wetter 14 still and we kept moving up in the water supply index. At 15 the same time, some coordination was taking place between 16 the hydrology group and the biology group. These two 17 groups as described in the agreement are working 18 independently. 19 However, there is a certain liaison activity 20 that's going on where there's an exchange of information 21 between these two groups so that we can keep each other 22 informed as to what's going on and there are some critical 23 questions that need to be decided mutually. One of those 24 being what the final determination of the test flow period 25 will be. And it's my belief that the primary basis for CAPITOL REPORTERS (916) 923-5447 1624 1 that determination is based upon the effectiveness of the 2 timing insofar as it affects migrating smolts. 3 As we get into the later stages of the month of 4 March, we transitioned from our forecasting of monthly and 5 half-monthly quantities into a more refined cut that looked 6 at daily operations to the extent that we could. Because 7 of the fact that conditions were as wet as they were, all 8 five of the major storage reservoirs on the San Joaquin 9 simultaneously were contributing flood control spills into 10 the system. And with the continuation of wet weather and 11 additional storms, these releases were tending to respond 12 frequently to each additional storm event that occurred. 13 Our forecasts of the flow that was going to be in 14 the system during the 31-day period tended to ever increase 15 in time after we get past the end of March. And, in fact, 16 one objective that's expressed in the agreement is for 17 there to be, even in high flow conditions, an effort to be 18 made to stabilize flows so that the experimental conditions 19 are somewhat constant. We maintained this objective to the 20 extent that we could. 21 However, again, with the persistence of the storms 22 that occurred this year, eventually each of the 23 contributing reservoirs to the system, I think, lost to a 24 certain degree the flexibility to make changes in their 25 operations to affect a consistent flow. So as you look at CAPITOL REPORTERS (916) 923-5447 1625 1 it, a trace of the flow that occurred in 1998 what you see 2 is pretty much the result of the combined flood control 3 operations rather than an effort to maintain consistent 4 flows. And that was really a byproduct of, again, the 5 extreme nature of the meteorological conditions and 6 hydrological conditions of this year. 7 As we evolved into actually the 31-day period, we 8 made a transition from having face-to-face meetings to 9 using e-mail and teleconferences. The number of 10 participants in these meetings was primarily limited to 11 D-operators involved in contributing to the San Joaquin, 12 the three or four parties that -- including myself, that -- 13 representing the agencies that were making decisions on 14 reservoir operations. 15 We continued to communicate and exchange 16 information and talk about possibilities. However, again 17 as I said, I don't believe that this year there were any 18 eventual decisions made that in any way affect flows 19 downstream. Each of the operating entities, I think, was 20 too much involved in responding to the flood control 21 requirements on each individual tributary to be able to 22 exercise any degree of control over the objectives that we 23 might have for stabilizing flows downstream. 24 We also included a briefing to the CalFed Ops 25 Group as part of the process. And that was done CAPITOL REPORTERS (916) 923-5447 1626 1 specifically at the March and April meetings of the CalFed 2 Ops Group. They were kept up-to-date with the forecasted 3 flows and the plan exports operation and highlights of the 4 water supply conditions as they evolved. 5 C.O. CAFFREY: Mr. Burke, as a courtesy to you are 6 you aware that there is a 20-minute limit of your direct? 7 MR. BURKE: I'm pretty close to being done. 8 C.O. CAFFREY: I wasn't trying to stifle you. I just 9 wanted to make sure, as a courtesy, that you knew that. 10 That's the one area where we don't make exceptions, because 11 it's suppose to be a summary. 12 MR. BURKE: Am I close to the limit? 13 C.O. CAFFREY: No, no, not at all. You have 14 six-and-a-half minutes, but I just wanted to make sure you 15 knew this. 16 MR. BURKE: I'm very close to being finished. 17 C.O. CAFFREY: That's the only reason. We weren't 18 bored, we didn't think you were going on too long, or 19 anything else. I was worried that you may not have heard 20 that, because I haven't mentioned it in the last few days. 21 So go right ahead, sir. 22 MR. BURKE: I'd just like to note two things in 23 summary. One is that this year was an extraordinary year 24 and because of the extraordinary nature of it, some of the 25 elements of planning and implementation of the test flow CAPITOL REPORTERS (916) 923-5447 1627 1 conditions was very much different than it would be in 2 other years. However, I think what we experienced this 3 year was a good exercise of how the process of coordination 4 can work; and how the various requirements for data in the 5 forecasting procedures need to be coordinated amongst the 6 various parties. 7 What we saw this year was possibly a good example 8 how frequently changing conditions could force you to have 9 to respond with a changing operations plan. And, 10 eventually, our operations plan really couldn't affect the 11 test conditions, but in other circumstances I think that 12 they could. And it was, certainly, something that I 13 realized that we -- that as we begin the process of 14 forecasting in February, we can expect to have to need to 15 change gears and be able to maintain the ability to be 16 flexible and respond to changing conditions as they evolve 17 over the months of February, and March and even early -- as 18 late as early April. 19 Some of the criteria that I used in the -- in 20 determining the test flows, such as the San Joaquin index, 21 and the calculation of whether there's a single-step or 22 two-step release, really there was no mystery to them this 23 year, because they were established early on and they never 24 changed. But the type of changes in the overall index that 25 occurred, if they had occurred on a somewhat lesser CAPITOL REPORTERS (916) 923-5447 1628 1 extraordinary scale, certainly, could have resulted in 2 changes in the test flow targets and, perhaps, in the 3 index. It could have changed whether the year was 4 perceived as a single-step or as a double-step year. 5 I say this just to note that the process is set up 6 and capable and prepared to be able to respond to changes 7 as we go through the year. And the calculation of existing 8 flow is continually revised as often as necessary as 9 conditions change, as operation parameters change. And 10 even as late as the 1st of April we're going to be 11 forecasting what the existing flow will be. 12 And so we feel by that time, early on there may be 13 some -- certainly, a large range of possibilities in the 14 conditions that we're going to need to consider and we do 15 so so we have a handle on the range of possibilities in 16 operations. But as we get closer to the test period, the 17 resolution of all the uncertainties is focused in on. And 18 much of the uncertainty diminishes and the accuracy, 19 certainly, of the prediction of the existing flow becomes 20 much greater by the time that you get to that point in time 21 where you're ready to, actually, start implementing 22 operations. 23 And in my view we continue to do that on a 24 preliminary basis until approximately a week before the 25 beginning of the pulse-flow period, when I think you can CAPITOL REPORTERS (916) 923-5447 1629 1 assume that some of the water that's most distant from the 2 bottom of the system has to be released, say, five to seven 3 days, at least, before the beginning of the period in order 4 to have time to travel to the end of the system. 5 So in summary, I guess, what we had in this year, 6 1998, was a very good exercise that gave us a chance to 7 work through the process even though the degree of control 8 that we eventually exercised wasn't like what it would be 9 in a more normal hydrologic setting. 10 Thank you. 11 C.O. CAFFREY: All right. Thank you, Mr. Burke. Do 12 any of the parties wish to cross-examine Mr. Burke? Let's 13 see we have Mr. Gallery, we have Mr. Jackson, we have 14 Mr. Nomellini, Mr. Suyeyasu. Did I leave anybody out? Did 15 I miss anybody? 16 All right, we have in this order: Gallery, 17 Jackson, Nomellini, and Suyeyasu. Mr. Gallery, good 18 afternoon, sir. 19 ---oOo--- 20 CROSS-EXAMINATION OF THE DEPARTMENT OF INTERIOR 21 BY TUOLUMNE UTILITIES DISTRICT 22 BY DAN GALLERY 23 MR. GALLERY: Thank you. Good afternoon, 24 Mr. Caffrey. 25 Mr. Burke, my name is Dan Gallery and I represent CAPITOL REPORTERS (916) 923-5447 1630 1 Tuolumne Utilities District. We're up next door to the New 2 Melones Reservoir. And I understood you to say that you've 3 been in Central Valley Operations for 13 years? 4 MR. BURKE: That's right. 5 MR. GALLERY: And during the last four years what did 6 you tell us? 7 MR. BURKE: I served in the role of coordinating the 8 operations required to meet the San Joaquin spring 9 pulse-flow period operations. 10 MR. GALLERY: What -- what role have you had in 11 the -- with regard to the overall Interim Plan of 12 Operations for New Melones that I think was developed in 13 the last couple years? 14 MR. BURKE: I've not been directly involved in that. 15 MR. GALLERY: Do you have any role in that connection 16 at all? 17 MR. BURKE: My role in coordinating the San Joaquin 18 operations, certainly, would be considering the 19 implementation of it. Insofar as the process of developing 20 it, I was not involved. 21 MR. GALLERY: Yes. You're familiar with the Interim 22 Plan of Operations? 23 MR. BURKE: Yes, in a general sense. 24 MR. GALLERY: Yes. Do you know, Mr. Burke, is there 25 a -- is there a document in the Central Valley Operation's CAPITOL REPORTERS (916) 923-5447 1631 1 Office that describes the criteria that went into the 2 formulation of the Interim Plan of Operations? 3 MR. BURKE: I'm not aware of one. 4 MR. GALLERY: You -- do you mean to say that there 5 could be one that you're not aware of, or as far as you 6 know there is no such written document? 7 MR. BURKE: There could be one. I'm not aware of it. 8 MR. GALLERY: And if there was one -- and I'm 9 thinking about a document, not just the model, but a 10 document that can explain to a lay person what factors and 11 criteria went into the formulation of it. So I'm thinking 12 maybe of a two, or three-page document that someone like me 13 could read and understand what it meant. 14 MR. BRANDT: I'm going to object at this point. He 15 already testified that he wasn't involved in the 16 development. I mean at some point you can ask, but it's 17 been asked and answered, I guess. 18 C.O. CAFFREY: It has been asked and answered. Are 19 you aware of any document at all, any description, any 20 level of detail that exists along the lines that 21 Mr. Gallery is asking for, Mr. Burke? 22 MR. BURKE: I'm aware of a May 1st, 1997, I believe 23 letter that expressed the Interim Plan of Operations, but 24 I'm not sure if that's -- 25 MR. GALLERY: No. That just describes the results of CAPITOL REPORTERS (916) 923-5447 1632 1 formulating the plan, but it doesn't have the criteria, or 2 the factors that went into it. Well, if there was such a 3 document, Mr. Burke, who would I go to out there at Central 4 Valley Operations and ask for it? 5 MR. BURKE: Lowell Ploss. 6 MR. GALLERY: Thank you. That's all I have, 7 Mr. Chairman. 8 C.O. CAFFREY: All right. Thank you, Mr. Gallery. 9 Mr. Jackson, you're back here? 10 MR. JACKSON: Yes, sir I am. 11 C.O. CAFFREY: Thought you left. 12 MR. JACKSON: No, sir, I didn't. 13 C.O. CAFFREY: If you had left we would have put you 14 at the bottom of the list and give you another chance. 15 MR. JACKSON: I'll leave. 16 C.O. CAFFREY: Well, it depends on how long you're 17 gone, too, as long as the list is still active. Go ahead, 18 Mr. Jackson. 19 ---oOo--- 20 CROSS-EXAMINATION OF THE DEPARTMENT OF INTERIOR 21 REGIONAL COUNCIL OF RURAL COUNTIES 22 BY MICHAEL B. JACKSON 23 MR. JACKSON: Mr. Burke, in the course of your 24 testimony you talked about a time earlier in the year 25 before the, I think, May rains in which you were trying to CAPITOL REPORTERS (916) 923-5447 1633 1 manipulate the system so that you could get within the VAMP 2 flow targets? 3 MR. BURKE: I had mentioned that during the month of 4 March there was a period of about three weeks where we had 5 a break in the storm activity and we experienced 6 diminishing flows in the San Joaquin. And it was at that 7 time that we began to think about contingency plans for a 8 temporary reduction in flows if it appeared to be possible 9 that would permit the installation of the head of Old River 10 barrier. 11 MR. JACKSON: So it is the intent of the hydrology 12 group that in flow years in which the flow is larger than 13 the highest flow in the VAMP to attempt to use this 14 coordinated operation to lower flows on the river? 15 MR. BRANDT: Objection. Mischaracterizes the 16 testimony and argumentative. 17 C.O. CAFFREY: Did you understand the question? 18 MR. BURKE: Yes, I do. And if I could explain, the 19 temporary reduction in flows is simply a byproduct of 20 the -- of the need to affect appropriate conditions for the 21 installation of head of Old River barrier. It is a 22 temporary reduction that would occur before the pulse-flow 23 period. And it really responds only to the -- to the needs 24 for placement of the barrier. 25 If I could, the affect would not continue into the CAPITOL REPORTERS (916) 923-5447 1634 1 pulse-flow period. In fact, wouldn't have anything to do 2 with the flow that occurred during the actual pulse-flow 3 period. 4 C.O. CAFFREY: All right. Thank you, sir. 5 MR. JACKSON: I'm talking about the period this year 6 shortly before the decision was made that because of the 7 additional rainfall you couldn't do the coordination to 8 lower the flows. How would you do that, sir? 9 MR. BURKE: We would have -- when I say "we," I'm 10 talking about the members of the hydrology group, possibly 11 a subgroup of the hydrology group, those involved in the 12 reservoir operations would have discussed the feasibility 13 of a plan to modify releases, temporarily, to affect such a 14 reduction in flow. And at some point make a determination 15 of whether it was feasible to do so within the constraints 16 of each of the various operator's ability to exercise any 17 discretion over their releases in that way. 18 MR. JACKSON: And as the individual operators use 19 their discretion to affect releases, the flow in the 20 individual rivers affected by their operations would go 21 down? 22 MR. BURKE: If what we were trying to do is create a 23 temporary reduction in flow, yes. 24 MR. JACKSON: How much do you believe that the system 25 could be modified? In other words, how much flow in the CAPITOL REPORTERS (916) 923-5447 1635 1 rivers could you physical forego in order to do the VAMP 2 experiment in a high-flow year? 3 MR. O'LAUGHLIN: Objection. Calls for speculation. 4 C.O. CAFFREY: Do you have an answer, Mr. Burke? 5 MR. BURKE: I could not give a specific answer, but 6 in general terms not very much. 7 C.O. CAFFREY: Thank you, sir. 8 MR. BURKE: The gist of what I'm trying to say is 9 that we determined that this year we didn't have sufficient 10 discretion of flexibility. It's a very narrow range of 11 discretion of flexibility that we could ever have. 12 MR. JACKSON: What is the range, sir? 13 MR. BURKE: I can't quantify that. 14 MR. JACKSON: What do you mean by "narrow" then? 15 MR. BURKE: I say narrow, because consideration is 16 such a decision to affect the flows in that manner has to 17 be done within the context of all of the various operations 18 objectives that each of the parties have including their 19 water supply, development, the power operations in 20 adherence with the Corps of Engineers flood control 21 criteria. And I think as had been mentioned by Mr. Steiner 22 there isn't a great deal of flexibility there. 23 Under a certain narrow range of conditions that we 24 perceived could exist for a period of time this year it 25 might be possible to do these temporary changes and still CAPITOL REPORTERS (916) 923-5447 1636 1 not compromise other objectives. However, that narrow 2 range, I think -- all I can say, it's a narrow range, 3 because it was contemplated, but then set aside this year. 4 MR. JACKSON: And the hydrology group contemplates 5 doing this whenever it is physically capable to lower the 6 flow within the narrow range you're talking about? 7 MR. BURKE: No, it wouldn't be necessary to do it in 8 many cases. In many cases the flow would be already 9 sufficiently low enough for the installation of the barrier 10 without any bifurcations. 11 MR. JACKSON: The only purpose for doing the 12 manipulation would be to effectuate the VAMP? 13 MR. BRANDT: Vague. 14 C.O. CAFFREY: I'm sorry, Mr. Brandt? 15 MR. BRANDT: Objection, vague. When you say, 16 implementation of the VAMP. 17 C.O. CAFFREY: Could you try to be a little more 18 specific? 19 MR. JACKSON: The only purpose of doing it within the 20 narrow range that you've talked about would be to bring the 21 flows down to within the upper limits of the VAMP 22 experiment? 23 MR. BURKE: Well, to bring the flows down to a level 24 at which it would be possible to construct the head of Old 25 River barrier. CAPITOL REPORTERS (916) 923-5447 1637 1 MR. JACKSON: All right. And this year what did you 2 feel in March you had the capacity to do in terms of 3 lowering the flows? 4 MR. BURKE: Essentially, when we looked at conditions 5 in March what I saw was that if you postulated the 6 continuation of dry weather it would have been a continued 7 recession of flows naturally and that it might be possible 8 to use some discretion in operations to speed up that 9 recession such that there could be a window of time when 10 the flows could be low enough to construct the barrier. 11 MR. JACKSON: Was this information transferred to the 12 biology group? The proposal -- let me withdraw the 13 question. 14 Did you and the hydrology group indicate to the 15 biology group that you were thinking about lowering the 16 flows so that you could install the barrier? 17 MR. BURKE: I believe it was on March 17th I attended 18 a meeting of the biology group and I briefed them at that 19 time on my perception of the range of possible conditions 20 that we might encounter. And it was brought up as a 21 subject of discussion the possibility existed that flows 22 could be low enough to effect a situation where the barrier 23 could be constructed. So, yes, they were briefed and they 24 were aware. 25 MR. JACKSON: Did they agree with the reduction? CAPITOL REPORTERS (916) 923-5447 1638 1 MR. BURKE: There was no question of -- there was no 2 proposal to do anything at that time. It was strictly a 3 hypothetical. However, it is my understanding that there 4 is a strong desire when possible and when it's practical to 5 include a closure at the head of Old River as part of 6 the -- of the test conditions. 7 MR. JACKSON: Now, that would result in less water 8 going down the river in any given year? 9 MR. BRANDT: Vague. Throughout a whole year? What 10 are we talking about? 11 C.O. CAFFREY: Could you be more specific, 12 Mr. Jackson? 13 MR. JACKSON: Sure. The manipulation of the system 14 by the operators to lower the flow in the San Joaquin in 15 order to allow the barrier to be built would result in a 16 lessening of water available during those months, would it 17 not? 18 MR. BIRMINGHAM: Objection. Vague and ambiguous. 19 C.O. CAFFREY: Did you understand the question, 20 Mr. Burke? 21 MR. BURKE: I would like to have it restated and 22 elaborated. I'm not sure I can answer it. 23 C.O. CAFFREY: Try it again, Mr. Jackson. 24 MR. JACKSON: Sure. The manipulation of the system 25 by the operators to lower the flow to help you establish CAPITOL REPORTERS (916) 923-5447 1639 1 the Old River barrier would result in less water being in 2 the river for fish and water quality because of the 3 manipulation, would it not? 4 MR. BURKE: My answer to that would be, if I could 5 I'd use 1998 as a context. And the answer is, it would not 6 result in less water overall. It would result in a time 7 shifting of release for that period. 8 MR. JACKSON: Thank you, sir. I have no other 9 questions. 10 C.O. CAFFREY: All right. Thank you, Mr. Jackson. 11 Mr. Nomellini. 12 ---oOo--- 13 CROSS-EXAMINATION OF THE DEPARTMENT OF INTERIOR 14 BY THE CENTRAL DELTA PARTIES 15 BY DANTE JOHN NOMELLINI 16 MR. NOMELLINI: Thank you, Mr. Chairman. Dante John 17 Nomellini for the Central Delta Parties. 18 Mr. Burke, I'm going to read you a definition of 19 flow dependent objectives. 20 (Reading): 21 "Flow dependent objectives are defined to 22 include all objectives that could be met by the 23 flow of water, or by changes in the operations 24 of facilities notwithstanding that such 25 objectives also could be met entirely, or CAPITOL REPORTERS (916) 923-5447 1640 1 partially through other means such as management 2 measures and waste discharge requirements." 3 Have you ever seen, or heard that definition? 4 MR. BURKE: No. 5 MR. NOMELLINI: You used the term, "flow objectives." 6 Could you define what you understand to be flow objectives 7 as you have used the term? 8 MR. BURKE: As I've used the term, I think what I was 9 referring to was the test flow objectives that were derived 10 from the experiment. 11 MR. NOMELLINI: And what experiment are you talking 12 about? 13 MR. BURKE: VAMP. 14 MR. NOMELLINI: And is VAMP the same thing as the 15 flow -- Vernalis flow requirements included in the 1995 16 Water Quality Control Plan? 17 MR. BURKE: No. 18 MR. NOMELLINI: Is it accurate to state that the 19 Bureau has been operating to flow objectives different than 20 the 1995 Water Quality Control Plan? I'm talking about 21 Vernalis flow objective. 22 MR. BURKE: Could you tell me during what period 23 you're referring to? 24 MR. NOMELLINI: Let's try April and May. 25 MR. BURKE: Of which years? CAPITOL REPORTERS (916) 923-5447 1641 1 MR. NOMELLINI: 1998. 2 MR. BURKE: Yes. The answer is, yes. 3 MR. NOMELLINI: And were you aware at the time of 4 your operation in 1998 that you were operating to a 5 different set of objectives than included in the 1995 Water 6 Quality Control Plan? 7 MR. BURKE: If -- if you would permit me, I'd like to 8 back up and elaborate. 9 MR. NOMELLINI: Go right ahead. That's all right 10 with me, Mr. Chairman. 11 MR. BURKE: In this particular case, as it turns out, 12 because of the nature of 1998, I believe that the flows 13 that were in the system were beyond and in excess of flows 14 required either for the VAMP test flow points, or under the 15 1995 Water Quality Control Plan. 16 So in that sense, and I think as I mentioned, we 17 were beyond considering that our operations needed to 18 affect those flows in any way by the time we got to the 19 31-day pulse-flow period. 20 MR. NOMELLINI: So, in other words, you were in 21 compliance with the Water Quality Control Plan, the 1995 22 Water Quality Control Plan Vernalis flow objectives, is 23 that what you're saying? 24 MR. BURKE: Yes. 25 MR. NOMELLINI: Because you were above. Now, during CAPITOL REPORTERS (916) 923-5447 1642 1 the time that you have been the coordinator to meet the 2 spring flow, was it your understanding that the only flow 3 objectives in the 1995 Water Quality Control Plan were the 4 Vernalis flow objectives? 5 MR. BURKE: No. 6 MR. NOMELLINI: All right. What other flow 7 objectives were you working, or coordinating to achieve? 8 MR. BURKE: Other flow objectives having to do with, 9 for example, Delta outflow and the placement of X2. 10 MR. NOMELLINI: All right. So it's your testimony 11 that the Vernalis salinity standard was not a flow 12 objective? 13 MR. BRANDT: Objection. I think it's calling for a 14 legal conclusion. 15 MR. NOMELLINI: All right. Do you consider the 16 Vernalis salinity objective, or standard to be a flow 17 objective? 18 MR. BRANDT: Same objection. 19 C.O. CAFFREY: I think Mr. Burke has a great deal of 20 expertise as an engineer. And I think I can allow him to 21 answer that to the best of his ability. 22 MR. NOMELLINI: I want his understanding, not a 23 legal. 24 C.O. CAFFREY: I understand. Go ahead, Mr. Burke. 25 MR. BIRMINGHAM: I'm going to object to the question CAPITOL REPORTERS (916) 923-5447 1643 1 on the ground it's vague. In terms of the use of flow 2 objective, is Mr. Nomellini asking him about flow objective 3 under the definition that Mr. Nomellini read at the 4 beginning of the cross-examination, or flow objective as 5 the witness has used that term? 6 C.O. CAFFREY: Could you clarify in your question, 7 Mr. Nomellini, what you mean? 8 MR. NOMELLINI: Is it your testimony that the 9 Vernalis salinity standard as included in State Board's 10 Order 95-6 is not a flow objective as you understand it? 11 MR. BRANDT: Same objection. Calling for a legal 12 conclusion now. 13 C.O. CAFFREY: I'm going to allow you to answer the 14 question to the best of your ability. It goes to the Board 15 to determine the value and the weight of the evidence. 16 MR. BURKE: I'll attempt to. My answer is that I 17 don't believe that it is a flow objective. 18 C.O. CAFFREY: Thank you, sir. 19 MR. NOMELLINI: Now, you indicated that your 20 coordination involved operations to facilitate the 21 installation of the head of Old River barrier; is that 22 correct? 23 MR. BURKE: It included consideration of, I'd say, 24 development of contingency plans for that. 25 MR. NOMELLINI: Now, during your time as coordinator CAPITOL REPORTERS (916) 923-5447 1644 1 of the flow objectives, as you have defined them, has the 2 Old River barrier installation been a regular part of your 3 operational planning? 4 MR. BURKE: I think it's -- for the last several 5 years it's been quite integral with our operations 6 planning, because of the -- of the significance that it's 7 had in terms of the timing of our operations at the 8 reservoirs and also at the export facilities. 9 MR. NOMELLINI: And with regard to the variation of 10 export pumping levels, has that been a regular part of the 11 operational considerations during the last four years that 12 you've been involved as a coordinator? 13 MR. BURKE: Yes, it has. 14 MR. NOMELLINI: Is there a policy directive that has 15 been given to you to require, and I'm talking about the 16 last four years, that the head of Old River barrier be a 17 part of the operations? 18 MR. BRANDT: Objection. Vague as to "policy 19 directive," but -- 20 MR. NOMELLINI: Well -- 21 C.O. CAFFREY: I'm sorry the objection was? 22 MR. BRANDT: Vague as to what "policy objective" 23 means. 24 MR. NOMELLINI: Well, is there a directive to you as 25 the coordinator -- has there been a directive to you as the CAPITOL REPORTERS (916) 923-5447 1645 1 coordinator of the operations to meet the spring flow that 2 you include considerations for installation of the head of 3 Old River barrier? 4 MR. BURKE: I think during the last four years that 5 it's been routine for us to consider the planning for and 6 the timing of the installation of the barrier. 7 MR. NOMELLINI: All right. What I was asking is: Is 8 there an -- I use the term "policy directive." And that 9 was, obviously, an incorrect term or confusing term. 10 Is there somebody above you directing you to do 11 this as the coordinator? 12 MR. BURKE: I -- I believe that -- I'm going to take 13 a crack at speaking for my agency from my position of staff 14 of Central Valley Operations -- 15 C.O. CAFFREY: I'm checking Mr. Brandt's body 16 language. 17 MR. BURKE: -- desire to expedite, as it's been 18 planned for, the installation of the head of Old River 19 barrier. 20 MR. NOMELLINI: Okay. So it's part of planning? 21 MR. BURKE: It's my understanding that it is. 22 MR. NOMELLINI: Okay. Is it isn't something you 23 initiated on your own; is that correct? 24 MR. BURKE: Surely not. 25 MR. NOMELLINI: And that's the way it's been since CAPITOL REPORTERS (916) 923-5447 1646 1 you've been in this position of coordinator, correct? 2 MR. BURKE: Correct. 3 MR. NOMELLINI: Do you know whether that same plan 4 for installation of the head of Old River was in existence 5 prior to your taking the position as the coordinator of the 6 spring flow objective? 7 MR. BURKE: I don't. And I don't think I can answer 8 that. 9 MR. NOMELLINI: All right. With regard to the 10 variation in export pumping rates, in conjunction with the 11 pulse flow is there a plan -- a similar planning component 12 that includes an effort on your part as the coordinator to 13 attempt to adjust the export pumping rates to meet this 14 VAMP test, or whatever you want to call it? 15 MR. BRANDT: I'm going to object to the extent you 16 haven't laid a foundation that he has any involvement in 17 the actual export decisions. 18 C.O. CAFFREY: You want to try something else? 19 MR. NOMELLINI: I believe he testified about the 20 efforts this year to attempt to coordinate the export 21 levels. And his testimony talks about, or speaks to, I 22 should say, that they were trying to meet a steady export 23 rate of 1500 cubic feet per second. Later in the 24 pulse-flow period it was anticipated that the demand would 25 increase, San Luis storage would decrease in order to keep CAPITOL REPORTERS (916) 923-5447 1647 1 Tracy pumps in continuous service. It was determined that 2 1800 cubic feet per second, approximately equal to 3 continuous flow at Tracy, blah, blah, blah. So I think his 4 testimony relates to that. 5 MR. BRANDT: I don't question it relates to it, it's 6 just a question of -- 7 MR. NOMELLINI: Well, then, I don't understand your 8 objection. 9 MR. BRANDT: It's just that he was not actually the 10 one making the decision. While he may be aware of it -- 11 MR. NOMELLINI: My question is -- 12 C.O. CAFFREY: I know you're talking to me. 13 MR. NOMELLINI: Excuse me. 14 C.O. CAFFREY: One at a time. Go ahead, Mr. Brandt. 15 MR. BRANDT: I just want to make sure that the record 16 is clear on what his role is on that one. And I appreciate 17 Counsel laying a foundation on that. 18 C.O. CAFFREY: Can you answer -- excuse me. I was 19 violating my own rule, talking over Mr. Brandt. Excuse me, 20 Mr. Brandt. 21 I was going to instruct Mr. Burke to answer the 22 question to the best of his ability in the context of his 23 expertise. Is that satisfactory to you? 24 MR. NOMELLINI: That's fine. And let me just add a 25 clarification. What I wanted to know is whether or not CAPITOL REPORTERS (916) 923-5447 1648 1 that attempt to vary the export levels is part of a plan 2 comparable to the plan that included installation of the 3 head of Old River barrier? 4 MR. BURKE: For the last, I believe, four years since 5 the issuance of the Fish and Wildlife Service Biological 6 Opinion that covered the protection of Delta smelt, we, the 7 Bureau of Reclamation, has been required to in coordination 8 with the Department of Water Resources to develop a plan 9 for our operations at our facilities, including the export 10 facilities, as to how we would provide for flows and 11 exports in the Delta during the spring-pulse flow period, 12 which in this case I think coincides with the same period 13 that we're discussing with respect to the salmon 14 experiment, at least it has so far coincided. 15 And we have done that. So the answer is, yes, we 16 have for the last several years and did, again, this year 17 plan in addition to the flows and for the timing of the 18 installation of the head of Old River barrier. We did have 19 a plan for the operation of the export facilities during 20 the spring pulse-flow period. 21 MR. NOMELLINI: Speaking to the plan with regard to 22 the adjustment in export levels, is that plan a 23 year-by-year plan, or does it have a longer period 24 associated with it? 25 MR. BURKE: We've been guided by a variety of CAPITOL REPORTERS (916) 923-5447 1649 1 governing criteria, if you will. When you say 2 "year-by-year plan," it's -- as currently described in the 3 San Joaquin River Agreement there are combinations of flow 4 and exports for a variety of conditions. And so in that 5 sense it covers an entire range. And it could be 6 effective, say, for the full 12-year contemplated duration 7 of the experiment. 8 And prior to the development of the VAMP 9 experiment criteria, there were flow conditions described 10 in the biological -- Biological Opinion. And an objective 11 for flows to exceed exports by certain amounts, that was 12 described as well, that we used as guidance in developing 13 combinations of flows and exports that could be provided in 14 any particular year depending on the San Joaquin River 15 index. So there is general guidance that could apply in 16 any year. 17 MR. NOMELLINI: And it could be a continuing 18 guidance, because until the Biological Opinion is changed 19 it would remain in effect; is that correct? 20 MR. BURKE: That's correct. 21 MR. NOMELLINI: Now, if the San Joaquin River 22 Agreement, which is the subject of this Phase II, did not 23 gain the approval of this Board, would you as the 24 coordinator of the spring flow continue to coordinate the 25 projects, federal project that you have control over, to CAPITOL REPORTERS (916) 923-5447 1650 1 meet these same planning objectives that we've described as 2 an export variable and inclusion of the head of Old River 3 barrier? 4 MR. BRANDT: Objection. Calls for speculation. 5 MR. NOMELLINI: If you know. 6 C.O. CAFFREY: Let me put it this way: If you're 7 uncomfortable with that question, you do not have to answer 8 it. 9 MR. BURKE: I'd be happy not to. 10 MR. NOMELLINI: Oh, you set him up. 11 C.O. CAFFREY: But I didn't object to your question. 12 MR. NOMELLINI: No, that was all right. I appreciate 13 it, halfway, half a load. I think that's all I have. 14 Thank you. 15 C.O. CAFFREY: All right. Thank you, Mr. Nomellini. 16 I believe we have Mr. Suyeyasu. 17 MR. SUYEYASU: I don't have any further questions. 18 C.O. CAFFREY: All right, sir. Any cross-examination 19 questions from our staff? Ms. Whitney. 20 ---oOo--- 21 CROSS-EXAMINATION OF THE DEPARTMENT OF INTERIOR 22 BY STAFF 23 MS. WHITNEY: John, I'm hoping you can give some 24 basic information on the record. Mr. Jackson asked you 25 about reduction in flows low enough to install the head of CAPITOL REPORTERS (916) 923-5447 1651 1 Old River barrier. Can you tell us what the maximum flows 2 are that the -- maximum flows that the head of Old River 3 barrier will -- installation of the head of Old River 4 barrier will allow? 5 MR. BURKE: First of all, I would like to say it's my 6 understanding that this is not really a well-defined number 7 and it could vary from year-to-year. But this year, you 8 know, in attempting to develop contingency plans we worked 9 with 5,000 csf for installation of the barrier. And in the 10 past years I think that there's been an indication that it 11 can operate safely at flows of 7,000 at some of the highest 12 test flow points. 13 MS. WHITNEY: That's for the temporary barrier. Do 14 you know what the design flows are for the permanent 15 barrier? 16 MR. BURKE: I don't, I'm sorry. 17 MS. WHITNEY: Regarding Exhibit 3-B, you prepared 18 this exhibit; is that correct? 19 MR. BURKE: Yes, I did. 20 MS. WHITNEY: The chart on the bottom is entitled, 21 "1998 Observed Vernalis Flows with Lagged Contributions 22 from Major Tributaries." 23 MR. BRANDT: Ms. Whitney, would you like me to put 24 it up on the screen? 25 MS. WHITNEY: Sure, if you would like to. Could you CAPITOL REPORTERS (916) 923-5447 1652 1 identify the source of the data for each of the tributary 2 flows? 3 MR. BURKE: For each of the tributaries I used -- for 4 the Tuolumne and the Merced I used, to the extent that they 5 were available, flow data at the downstream gages. Where 6 there were gaps, I filled in with some estimates based on 7 the scheduled releases. For the Kings River north I used 8 estimates of the flow at James bypass. For Friant I used 9 the scheduled releases at the dam. For Stanislaus I used 10 scheduled releases at Goodwin Dam. 11 MS. WHITNEY: Could you explain why you lagged the 12 flows for the tributaries, and could you define what the 13 lag time is for each tributary? 14 MR. BURKE: The reason I used the lag flows was to 15 attempt to expose the unaccounted for component of the flow 16 at Vernalis. What my reason for lagging the flows is so 17 that they would combine in a way so, at least according to 18 the assumed lag time would show when they would have all 19 reached the downstream point together. And by doing so the 20 uncolored portion of that trace reveals what our calculated 21 accretions or depletions would be at that time; and by 22 doing so demonstrate the magnitude by which it was changing 23 this year. 24 MS. WHITNEY: Could you tell us how much you lagged 25 as posed to each tributary? CAPITOL REPORTERS (916) 923-5447 1653 1 MR. BURKE: I'll use my recollection. Friant I 2 believe seven days. For the James bypass representing the 3 Kings River north, I believe six days. The Merced I 4 believe three days. Tuolumne I believe two days. And for 5 the Stanislaus I believe I used two days, also. 6 MS. WHITNEY: Do those periods accurately reflect the 7 actual lag time? 8 MR. BURKE: They are a simplistic representation of 9 the lag time that I employed. 10 MS. WHITNEY: I have two more questions. There's 11 been some discussion about operations that would result in 12 reduced flows in Vernalis -- at Vernalis. Are there any 13 reasons other than the installation of the head of Old 14 River barrier that the operators might choose to reduce 15 releases resulting in reduced flows? 16 MR. BURKE: There are a couple of aspects to the 17 operations during the pulse-flow period that could result 18 in fluctuating flows on the tributaries. But I would not 19 categorize them as reasons to reduce the flows. And the 20 reasons that I'm thinking of are, first of all, on the 21 tribs there's usually some experimental effort going on 22 during the spring pulse-flow period where they may want to 23 vary flows on the individual tribs for experimental 24 purposes. And that could result in the need to make some 25 kind of compensating modifications on the tribs in order to CAPITOL REPORTERS (916) 923-5447 1654 1 maintain the objective of having a constant flow 2 downstream. 3 So that -- that would be the primary reason, 4 really the only reason that I can think of for having a 5 need for what I'd call not just reducing flows, but really 6 just having compensating releases on any of the 7 contributing streams in order to permit these types of 8 experiments to occur simultaneously while the flow at 9 Vernalis we're attempting to stabilize. 10 MS. WHITNEY: Have the flows ever been altered from 11 what they normally would be in order to accommodate things 12 like road construction, bridge improvement, other things 13 like that? 14 MR. BURKE: Those are things -- yeah, they have 15 occurred probably during that time of year as well. We 16 haven't been faced with responding to that. Hey, it would 17 be really -- that would be a very complicating factor and I 18 don't think that, if possible, we'd not want to introduce 19 those complicating factors into the conduct of our 20 operations during that time if it was possible to avoid 21 them. 22 MS. WHITNEY: That's it. Thank you. 23 C.O. CAFFREY: All right. Thank you, Ms. Whitney. 24 Any other questions from staff? 25 MR. HOWARD: No. CAPITOL REPORTERS (916) 923-5447 1655 1 C.O. CAFFREY: Anything from the Board Members? 2 Mr. Stubchaer. 3 ---oOo--- 4 CROSS-EXAMINATION OF THE DEPARTMENT OF INTERIOR 5 BY THE BOARD 6 C.O. STUBCHAER: Does the Kings River flow into the 7 San Joaquin every year, or only in flood years? 8 MR. BURKE: Only in flood years. 9 C.O. STUBCHAER: How often does that occur? If you 10 could give me an estimate of once every so many years. 11 MR. BURKE: I'll give you, just based on my 12 recollection, 1996 -- in the last 13 years 1996 -- 1995, 13 1997 and 1998. I'm not sure about '96. So based on that 14 it appears as though it's about maybe a quarter to a third 15 of the time. 16 C.O. STUBCHAER: And so, then, on the lower graph in 17 the exhibit that was just on the screen showing the flows 18 at Vernalis, the band attributed to the Kings River would 19 be something that would not be controlled under the VAMP; 20 is that correct? 21 MR. BURKE: No, that's not subject to the control 22 under the VAMP, but -- 23 C.O. STUBCHAER: And so -- 24 MR. BURKE: I'm sorry, I just wanted to mention as 25 part of our planning I did attempt to stay in coordination CAPITOL REPORTERS (916) 923-5447 1656 1 to some degree so I could be aware of their plans, but 2 there is -- 3 C.O. STUBCHAER: So in years when the flow from the 4 King's River occurs, that could very well be in addition to 5 the planned VAMP flows on top of the target flows; is that 6 a correct statement? 7 MR. BURKE: No. I think the way that we would 8 attempt to treat that is to forecast the existing flow to 9 include contributions from the King's River. And those, 10 then, would go into the determination of the test flow 11 target. So in such years as you have contributions from 12 the King's River, that's an ad -- that's an additional 13 factor that needs to be considered in predicting the 14 existing flow. However, because those flows tend to occur 15 in the wettest of years, and in a lot of those instances 16 you'll be beyond your highest test flow target anyway. 17 C.O. STUBCHAER: Thank you. 18 C.O. CAFFREY: Thank you, Mr. Stubchaer. Mr. Brown? 19 MEMBER BROWN: Just a follow-up to Mr. Stubchaer's 20 question. Kings terminates into -- does it go into Tulare 21 Lake, work its way over there? 22 MR. BURKE: Yes. There is a possibility to divert 23 water south to Tulare Lake. 24 MEMBER BROWN: Where does it come into the San 25 Joaquin, how do you get it in there? CAPITOL REPORTERS (916) 923-5447 1657 1 MR. BURKE: It's diverted at present where, I 2 believe, north into the James bypass and then to Mendota 3 pool where its confluences with the San Joaquin River. 4 MEMBER BROWN: Okay. Thank you. 5 C.O. CAFFREY: Thank you, Mr. Brown. Anything else 6 from the panel? The Board? 7 C.O. STUBCHAER: I just have a follow-up question. 8 C.O. CAFFREY: Yes, Mr. Stubchaer. 9 C.O. STUBCHAER: Is there a possibility, then, that 10 in certain years instead of allowing water to go to Tulare 11 Lake to the Kings River it can be used to meet the San 12 Joaquin River flows, or is that likely to be in a period 13 when you have floods and excess water anyway? 14 MR. BURKE: I believe that that would be the case. 15 That -- the rule, I believe my interpretation of the flood 16 control treatment of flows in the King's River is that the 17 first water is diverted north as an attempt to divert up 18 to, I believe, 4700 cubic feet per second north toward the 19 San Joaquin in order to avoid the diversion of water 20 towards Tulare Lake. 21 C.O. CAFFREY: All right. Thank you, Mr. Stubchaer. 22 That completes the cross-examination of this witness. 23 Mr. Brandt, do you plan to offer any redirect? 24 MR. BRANDT: If I may have a moment? 25 C.O. CAFFREY: Why don't we then take a -- while CAPITOL REPORTERS (916) 923-5447 1658 1 you're conferring let's take our afternoon break and come 2 back in about 12 minutes. 3 MR. BRANDT: We have no redirect. 4 C.O. CAFFREY: All right. There will be no redirect, 5 but we're still going to take a break. Thank you. 6 (Recess taken from 2:23 p.m. to 2:35 p.m.) 7 C.O. CAFFREY: Let's find our seats and we'll roll. 8 All right. We are at that point, Mr. O'Laughlin, where I 9 believe -- well, let me just say that as we were exiting 10 the room a little while ago, I believe Mr. O'Laughlin, or 11 Mr. Brandt said that there was going to be no redirect for 12 this witness; is that correct? 13 MR. BRANDT: That's correct. 14 C.O. CAFFREY: So there will be no redirect. I 15 believe that, then, puts us at the point of offering 16 exhibits; is that correct? 17 MR. O'LAUGHLIN: That is correct, Chairman Caffrey. 18 C.O. CAFFREY: Let's go off the record just a second 19 while we're able to compare notes. 20 (Off the record from 2:36 p.m. to 2:37 p.m.) 21 C.O. CAFFREY: Ready? 22 MR. O'LAUGHLIN: Yes, thank you, Chairman Caffrey. 23 That is the conclusion of the San Joaquin River Group 24 Authority's case in chief as well as the other signatories 25 to the San Joaquin River Agreement. I would now, with your CAPITOL REPORTERS (916) 923-5447 1659 1 indulgence, like to offer into evidence the following 2 exhibits. 3 C.O. CAFFREY: Just so that I understand how we're 4 doing this. You're going to be the spokesperson for all 5 the attorneys and offer all the exhibits; is that right, 6 Mr. O'Laughlin? 7 MR. O'LAUGHLIN: No. I will only offer into evidence 8 the San Joaquin River Group Authority Exhibit Numbers. 9 And, then, the Department of the Interior will offer its 10 exhibits. And, then, the California Department of Fish and 11 Game will offer its exhibits. And, then, finally the State 12 Water Project Contractors. 13 C.O. CAFFREY: All right. Why don't we begin, then. 14 Go ahead. 15 MR. O'LAUGHLIN: Thank you, Chairman Caffrey. 16 Previously we had offered Exhibits 1 and 2 into evidence. 17 There were no objections. I believe those have been 18 offered and admitted into evidence. 19 MR. JACKSON: Mr. Caffrey, I would move to strike if 20 they have been on the grounds that Mr. Short did not 21 subject himself to cross-examination and this was no one 22 who testified to the agreement. 23 MR. O'LAUGHLIN: But we had, previously, asked -- and 24 I wanted to get this clear, because we had previously asked 25 if that was the case, there were no objections to the offer CAPITOL REPORTERS (916) 923-5447 1660 1 to admit them into evidence at that time. And I believe 2 that they were admitted into evidence in my notes. 3 C.O. CAFFREY: What's the rule here, Ms. Leidigh, can 4 we accept these under the weight of evidence discretion of 5 Board Members? What's the deal? 6 MS. LEIDIGH: Well, generally, if the witness hasn't 7 appeared it's not right to accept these in evidence. We 8 haven't heard from the witness. And I don't think -- I 9 don't have any indication that they've been accepted. Our 10 records show they were introduced, but they were not 11 accepted. 12 C.O. CAFFREY: So our regulations disallow us from 13 accepting these? 14 MS. LEIDIGH: I suppose you could accept them, but 15 they're hearsay at this point. And they could not be used 16 to be the basis of any finding. 17 C.O. CAFFREY: They're in the general record? 18 MR. O'LAUGHLIN: We're going to handle this one real 19 quickly. 20 C.O. CAFFREY: They're not in the evidentiary record, 21 but in the general record? 22 MS. LEIDIGH: Well, they would be evidentiary in that 23 they would be exhibits in evidence, but they would be 24 treated as hearsay. 25 C.O. CAFFREY: I think we've solved -- are we solving CAPITOL REPORTERS (916) 923-5447 1661 1 the problem by presenting the witness, is that what we're 2 doing? 3 MR. O'LAUGHLIN: No, we're going to skip the 4 San Joaquin River Group Exhibit Number 1, then, the 5 statement of Allen Short. I will offer for the testimony 6 of San Joaquin River Group Authority Exhibit Number 2, 7 Mr. Ross Rogers. 8 MR. O'LAUGHLIN: Mr. Rogers -- 9 C.O. CAFFREY: Excuse me, Mr. O'Laughlin, I'm sorry 10 to interrupt you. We have the objection to the acceptance 11 of two exhibits, because the witnesses did not appear: 12 Mr. Short and Mr. Rogers; is that correct? Mr. Rogers is 13 going to testify on behalf of -- 14 MR. O'LAUGHLIN: No, Mr. Rogers is going to -- 15 C.O. CAFFREY: I'm completely confused. Go ahead. 16 MR. BRANDT: This will be very simple. 17 MR. ROBBINS: Mr. Chairman, could I ask for a point 18 of clarification if I might, please? 19 C.O. CAFFREY: I don't even know what the point is, 20 yet. 21 MR. ROBBINS: I believe that this matter was 22 previously offered to the Board, the absence of Mr. Short 23 was indicated. 24 C.O. CAFFREY: I recall that. 25 MR. ROBBINS: The exhibits were identified, were CAPITOL REPORTERS (916) 923-5447 1662 1 placed in the record, and objections were asked for 2 relative to -- and there were no objections at that time. 3 C.O. CAFFREY: Right. I remember that. Thank you, 4 Mr. Robbins. Under that circumstance, can we not accept 5 these exhibits, Ms. Leidigh? 6 MS. LEIDIGH: Let's check our records, just a moment. 7 C.O. CAFFREY: What are we doing? 8 MS. LEIDIGH: We're checking our records to find out 9 whether or not it's been accepted. 10 C.O. CAFFREY: All right. Let's go off the record so 11 that Mary doesn't have to record every conversation within 12 earshot. 13 (Off the record from 2:46 p.m. to 2:52 p.m.) 14 C.O. CAFFREY: Why don't you begin, Mr. O'Laughlin, 15 before I say anything. Did you have anything you wanted to 16 add? 17 MR. O'LAUGHLIN: Nope, I have nothing to add. 18 C.O. CAFFREY: Okay, this is the ruling. I reviewed 19 what I said, it is a statement with regard to a 20 clarification that we don't accept evidence until we have 21 heard the full case in chief. And that was really what was 22 said at that time. Nevertheless, I'm going to accept 23 Mr. Short's letter as an evidentiary exhibit. 24 Again, with the statement that I made many times 25 that it goes to the Board when reviewing the record to CAPITOL REPORTERS (916) 923-5447 1663 1 determine the weight of evidence. He was not here to 2 testify, but we will accept the letter. 3 MS. LEIDIGH: That's his statement of qualifications 4 Exhibit 1. 5 C.O. CAFFREY: Is that right? 6 MS. LEIDIGH: That's the one. 7 C.O. CAFFREY: And there's a letter as well? 8 MS. LEIDIGH: The letter for support for the San 9 Joaquin River Agreement and the San Joaquin River Agreement 10 which was attached to it. I believe, Mr. Rogers testified 11 with respect to that. 12 C.O. CAFFREY: I believe he did as well as; is that 13 true, Mr. Rogers? 14 MR. ROGERS: Yes. 15 MR. O'LAUGHLIN: Excuse me, I don't mean to -- you 16 can wait your turn. What I would like to say is Mr. Rogers 17 did not testify. Mr. Rogers made an opening statement. So 18 there was no testimony in the record regarding the San 19 Joaquin River Group Exhibit Number 2. 20 C.O. CAFFREY: All right. 21 MR. O'LAUGHLIN: So in order to get this cleaned up, 22 since there appears to be some doubt as to whether or not 23 this is a true and correct copy of the Letter of Support 24 and the agreement as well, as Appendix A and B, I'll have 25 Mr. Ross Rogers to testify that those are true and correct CAPITOL REPORTERS (916) 923-5447 1664 1 copies, so we can get those entered into evidence. 2 C.O. CAFFREY: All right. Let's proceed with that, 3 then. 4 ---oOo--- 5 DIRECT TESTIMONY OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 6 OF ROSS ROGERS 7 BY TIM O'LAUGHLIN 8 MR. O'LAUGHLIN: Thank you, Mr. Chairman. Mr. Rogers 9 can you, please, state your qualifications for the Board? 10 MR. ROGERS: Excuse me. Yes, my name is Ross Rogers. 11 I'm the general manager of the Merced Irrigation District 12 and have been in that capacity for approximately eight 13 years. 14 MR. O'LAUGHLIN: Mr. Rogers, did you help negotiate 15 the San Joaquin River Agreement? 16 MR. ROGERS: Yes, I did. 17 MR. O'LAUGHLIN: And as attached as San Joaquin River 18 Group Authority Exhibit Number 2 is a San Joaquin River 19 Agreement with Appendix A and B. Are you familiar with 20 those documents? 21 MR. ROGERS: Yes. 22 MR. O'LAUGHLIN: Okay. Are those true and correct 23 copies, to the best of your knowledge, in regards to the 24 San Joaquin River Agreement? 25 MR. ROGERS: Yes, they are. CAPITOL REPORTERS (916) 923-5447 1665 1 MR. O'LAUGHLIN: Also, is Merced Irrigation District 2 a signatory to the statement of support for the San Joaquin 3 River Agreement? 4 MR. ROGERS: Yes, it is. 5 MR. O'LAUGHLIN: Okay. And did you on -- have you 6 been sworn? 7 MR. ROGERS: No. Start over. 8 MR. O'LAUGHLIN: Get up. He hasn't been sworn. 9 C.O. CAFFREY: Do you promise to tell the truth in 10 these proceedings? 11 MR. ROGERS: Yes, I do. 12 C.O. CAFFREY: Thank you, sir. More than a minor 13 technicality. 14 MR. O'LAUGHLIN: Thank you. Mr. Rogers, rather than 15 going back and re-asking all those questions, again, would 16 you just verify that the answers that you have previously 17 given are true and correct? 18 MR. ROGERS: Yes, the answers that I previously gave 19 are true and correct. 20 MR. O'LAUGHLIN: All right. Now in regards to the 21 statement of support for the San Joaquin River Agreement, 22 was the Merced Irrigation District a signatory to that 23 agreement? 24 MR. ROGERS: Yes, it is. 25 MR. O'LAUGHLIN: Okay. Is that a true and correct CAPITOL REPORTERS (916) 923-5447 1666 1 copy of the statement for support for the San Joaquin River 2 Agreement? 3 MR. ROGERS: Yes, it is. 4 MR. O'LAUGHLIN: Thank you. I have no further 5 questions for Mr. Rogers. 6 C.O. CAFFREY: Thank you, Mr. O'Laughlin. 7 MR. O'LAUGHLIN: Okay. I would like to now offer 8 into evidence -- 9 C.O. CAFFREY: I have to subject him to 10 cross-examination since he's appeared as a witness. Do any 11 of the other parties wish to cross-examine this witness? 12 All right. Mr. Birmingham. I can't see behind 13 Mr. O'Laughlin. Mr. Herrick, Mr. Jackson, Mr. Suyeyasu. 14 Did I leave anybody out? Mr. Nomellini. 15 All right. Let me make another announcement. We 16 will not, and this ensures it, but we will not be beginning 17 Phase III before next Tuesday morning. I know some of you 18 have concerns about notifying your witnesses, so whatever 19 time we finish tomorrow, even if we were to finish tomorrow 20 before 4 o'clock we would not begin Phase III. So with 21 some luck, we'll start Phase III on Tuesday morning of next 22 week, with different luck, we'll start it sometime after 23 Tuesday morning. 24 All right. Let's begin with Mr. Birmingham. 25 Mr. Jackson, do you have a question? CAPITOL REPORTERS (916) 923-5447 1667 1 MR. JACKSON: Yeah, I do. Mr. Birmingham is a 2 signatory of the -- his organization is a signatory of the 3 agreement. And, therefore, a proponent of the agreement 4 and really is not able to cross-examine, would be involved 5 in direct examination. I mean they can't both direct and 6 cross, can they? 7 C.O. CAFFREY: I don't want to answer -- well, I'll 8 let Mr. Birmingham answer that, if he wishes. Go ahead, 9 Mr. Birmingham. I think we answered this once before, but 10 go ahead. 11 MR. BIRMINGHAM: In fact, since we're being such 12 sticklers of evidentiary rules and since Mr. Jackson is the 13 one that is insisting that we follow very closely the 14 evidentiary rules, the record as it exists today does not 15 indicate that the San Luis and Delta Mendota Water 16 Authority or Westlands Water District are signatories to 17 the agreement. 18 I have three very simple questions for the 19 witness. The first one is: Has Westlands signed the 20 agreement? The second one is: Has San Luis and Delta 21 Mendota signed the agreement? And the third one is: Has 22 the Department of Water Resources signed the agreement? 23 Those are the only three questions I want to ask the 24 witness just to make sure that the record is complete and 25 accurate. CAPITOL REPORTERS (916) 923-5447 1668 1 C.O. CAFFREY: Thank you for your very thorough 2 answer to the question, Mr. Birmingham. This will not be a 3 precedent for people having to submit all their questions 4 for cross-examination in advance. You may go ahead and 5 cross-examine this witness. 6 ---oOo--- 7 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 8 BY SAN LUIS DELTA-MENDOTA WATER AUTHORITY 9 BY THOMAS W. BIRMINGHAM 10 MR. BIRMINGHAM: Thank you. Mr. Rogers, looking at 11 San Joaquin River Group Exhibit 2, the statement of 12 support, it appears that neither San Luis Delta-Mendota nor 13 Westlands Water District have signed the agreement. Is 14 that correct? 15 MR. ROGERS: Yes, that is correct. 16 MR. BIRMINGHAM: Has the San Luis Delta-Mendota Water 17 Authority and the Westlands Water District now signed the 18 statement of support for the San Joaquin River Agreement, 19 Exhibit 2? 20 MR. ROGERS: Yes, they have now signed that statement 21 of support. 22 MR. BIRMINGHAM: Has the Department of Water 23 Resources now signed the statement of support for the San 24 Joaquin River Agreement, Exhibit 2? 25 MR. ROGERS: Yes, it is has. CAPITOL REPORTERS (916) 923-5447 1669 1 MR. BIRMINGHAM: Thank you very much. I have no 2 further questions. 3 C.O. CAFFREY: Thank you, Mr. Birmingham. 4 Mr. Herrick. 5 ---oOo--- 6 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 7 BY SOUTH DELTA WATER AGENCY 8 BY JOHN HERRICK 9 MR. HERRICK: Thank you, Mr. Chairman. John Herrick, 10 again, for South Delta Water Agency. Mr. Rogers, just a 11 couple questions. Mr. Rogers would you turn to page 8 of 12 the agreement, which is your Exhibit 2 below -- or part of 13 6.4 it says, 14 (Reading): 15 "The parties agree that the export limits 16 established in this agreement are consistent 17 with the existing biological opinions." 18 You may not know the answer to this, but are you 19 aware of any official consultation that has been done with 20 the U.S. Fish and Wildlife Service regarding consistency 21 with the Biological Opinion? 22 MR. ROGERS: No, I'm not aware of any official 23 consultation. 24 MR. HERRICK: The next page, on page 9, paragraph 6.7 25 it says, CAPITOL REPORTERS (916) 923-5447 1670 1 (Reading): 2 "If on April 10th or five days before the 3 pulse-flow period the operations planned for 4 that year is unacceptable to any party, then, 5 the export limitations contained in paragraph 6 6.4 shall not apply during that calendar year." 7 Mr. Rogers, do you have any information as to what 8 export limitations, if any, would exist if this occurs? 9 MR. ROGERS: I'm not prepared to answer that at this 10 time. 11 MR. HERRICK: Finally, on page 15, excuse me for 12 reading this, Mr. Chairman, but I want to get the specifics 13 down here. 14 C.O. CAFFREY: That's all right, Mr. Herrick. Go 15 ahead. 16 MR. HERRICK: 12 .1 talks about flow requirements and 17 let me get the right -- I'll read the whole clause, or 18 whole sentence, 19 (Reading): 20 "Other than those flow objectives established 21 for the VAMP neither, one, the members of the 22 SJRGA, comma, two, any of the agencies 23 comprising a member of the SJRGA, nor, three, 24 the CCSF shall have during the term of this 25 agreement any other requirements for flow at CAPITOL REPORTERS (916) 923-5447 1671 1 Vernalis, or the San Joaquin River portion of 2 the 1995 Water Quality Control Plan, comma, nor 3 will they have an obligation under the 1995 4 Water Quality Control Plan to mitigate the 5 impacts on water quality resulting solely from 6 any reduction in flows in the San Joaquin River 7 or its tributaries." 8 Have you read that provision before, Mr. Rogers? 9 MR. ROGERS: Yes, it's been sometime. 10 MR. HERRICK: Is it your understanding that if the 11 Board adopts this as implementation of their Water Quality 12 Control Plan, but in that adoption find significant adverse 13 stream flows that the SJRGA will not be required to 14 mitigate those impacts? 15 MR. ROGERS: I would -- would you ask that, again, 16 please? 17 MR. HERRICK: Mr. Rogers, if the Board is considering 18 adopting the SJRA, San Joaquin River Agreement, to 19 implement in the 1995 Water Quality Control Plan, but finds 20 that there are significant impacts on downstream flow in 21 doing that, is it your understanding that this provision 22 insulates the San Joaquin River Group Authority members 23 from mitigating that? 24 MR. ROGERS: I cannot answer that. 25 MR. HERRICK: Will there be another witness who can CAPITOL REPORTERS (916) 923-5447 1672 1 answer that put forward? 2 MR. O'LAUGHLIN: Wait. Objection. And -- that's 3 argumentative. And, secondly, in response to it, no. 4 C.O. CAFFREY: Let me ask a clarification, I'm not 5 sure I understand the witness's answer. 6 MEMBER BROWN: Me neither. Is it no, no answer, or 7 is it, no? 8 MR. BIRMINGHAM: Mr. Caffrey, the question calls for 9 a legal conclusion. I believe the testimony to date has 10 been the San Joaquin River Agreement -- or the San Joaquin 11 River Group is conducting an analysis under CEQA with 12 respect to implementing the San Joaquin River Agreement. 13 And if through that process significant impacts are 14 identified, under CEQA it would be necessary for the group 15 to identify feasible mitigation measures. And so I believe 16 that really he was being asked for is a legal conclusion. 17 C.O. CAFFREY: Mr. Rogers, are you -- 18 MR. HERRICK: May I comment on that, Mr. Chairman? 19 C.O. CAFFREY: Go ahead. 20 MR. HERRICK: It's not asking for a legal conclusion. 21 This gentleman has been asked to bring this document into 22 evidence. And if it has a provision, which is 23 questionable, he should be able to answer it. And I asked 24 for his understanding of whether or not members of his 25 group would have to provide mitigation. That's not a legal CAPITOL REPORTERS (916) 923-5447 1673 1 conclusion. 2 MR. O'LAUGHLIN: Well -- 3 MR. HERRICK: That's not asking for a legal 4 conclusion. 5 MR. O'LAUGHLIN: I need to address this point, this 6 is a very important point, Chairman Caffrey. 7 C.O. CAFFREY: Before you do that I'm going to ask 8 the witness: Do you feel you lack the expertise to answer 9 the question? 10 MR. ROGERS: Yes, I feel I do. And I feel it's a 11 legal question. 12 C.O. CAFFREY: That's the end of that. That's the 13 end of the issue. You do not have to answer the question. 14 MR. O'LAUGHLIN: In regards to further testimony 15 along this line, Mr. Rogers, as one of the persons who was 16 responsible for negotiating the agreement and is one of the 17 responsible parties who signed the agreement, there's a 18 myriad of parties that were involved in signing this 19 agreement. 20 Mr. Rogers will not speak as to the intent of any 21 of the parties in regards to what the language means in the 22 agreement. All he is offering into evidence is the 23 agreement itself and verifying that the agreement is a true 24 and correct copy and verifying that the Letter of Support 25 is a true and correct copy. He will not testify in regards CAPITOL REPORTERS (916) 923-5447 1674 1 to the interpretation of the language, because the language 2 interpretations is the intent of all the parties and 3 Mr. Rogers does not represent the intent of all the 4 parties. 5 MR. HERRICK: Mr. Chairman, we're here at the request 6 of the San Joaquin River Authority to decide whether or not 7 there are environmental benefits in lower San Joaquin River 8 and southern Delta at a level of protection equivalent to 9 the level of protection in the Bay-Delta plan. 10 What they're telling us, now, is that we are 11 unable to cross-examine anybody as to whether there is a 12 transfer of responsibility for mitigating the plan they 13 propose. Now, I don't know what time that would come up, 14 but how are we suppose to analyze whether there's 15 equivalent protection or not? I would submit somebody else 16 bearing the burden of mitigating is relevant to the 17 determination of equivalent protection. 18 MR. O'LAUGHLIN: Well, I think that's an interesting 19 interpretation of the language by Mr. Herrick. And he's 20 entitled to make what interpretation of the agreement that 21 he wishes. No one in our group has ever testified to that. 22 If he wants to put that in rebuttal, I'd be more than happy 23 to listen to it. But we're not going to testify to that 24 and that hasn't been the testimony to date. 25 C.O. CAFFREY: Mr. Robbins? CAPITOL REPORTERS (916) 923-5447 1675 1 MR. ROBBINS: I would also ask the Board's 2 indulgence, you will note from the Statement of Support 3 that Mr. Rogers signed the document on February 12th, had 4 not intended to testify here today. It is our 5 understanding that Mr. Short's absence had been waived, I 6 mean his personal presence had been waived by virtue of the 7 Board's request. 8 In any case, Mr. Rogers was not prepared to 9 testify today. He has done what the Board has requested. 10 That is to say, he has verified that the San Joaquin River 11 Agreement Exhibit 2 is, in fact, a true and correct copy as 12 well as the agreement. And that's, essentially, the extent 13 of his testimony. 14 C.O. CAFFREY: Right. 15 MR. O'LAUGHLIN: Right. 16 C.O. CAFFREY: Did I miss anybody? All right. 17 Great. All right. We're going to take a time out here for 18 some consultation with our counsel and the Cohearing 19 Officer. And I'd appreciate it though if we didn't turn it 20 into a recess. I'd ask you all to be reasonably quite 21 while we're up here trying to figure out our ruling. Thank 22 you. Off the record. 23 (Off the record from 3:04 p.m. to 3:21 p.m.) 24 C.O. CAFFREY: Back on the record. We had a rather 25 lengthy consultation up here. The -- Mr. Stubchaer and I CAPITOL REPORTERS (916) 923-5447 1676 1 have consulted with our Executive Director and our counsel 2 with other Board Members listening close by. And we have 3 decided that we want to hear a little bit more about the 4 agreement. 5 We've heard a lot of technical information about 6 the different modules and modelers of the agreement, but it 7 appears as though some of the parties want to do some 8 questioning about some of the institutional arrangements. 9 And we think that would be helpful to the Board as well. I 10 don't know if Mr. Rogers is available to answer those 11 questions, or would you like to produce another witness who 12 would be better able to do that, Mr. O'Laughlin and 13 Mr. Robbins? 14 MR. O'LAUGHLIN: One moment, Mr. Caffrey. 15 C.O. CAFFREY: Please. 16 MR. O'LAUGHLIN: Mr. Chairman, if I may, what I would 17 like to propose, if possible -- needless to say, we weren't 18 expecting this. 19 C.O. CAFFREY: Nor were we, but here we are. 20 MR. O'LAUGHLIN: Yes, that is correct. What we would 21 like to do with the Board's agreement is offer into 22 evidence the other exhibits that we have put forth as well 23 as DOI, California Department of Fish and Game, and the 24 State Water Project Contractors. I will need to consult 25 with the other parties to the agreement here this afternoon CAPITOL REPORTERS (916) 923-5447 1677 1 and early this evening and decide what witness will be the 2 witness to best answer, or respond to questions regarding 3 the San Joaquin River Agreement. It may be Mr. Rogers and 4 it may not be Mr. Rogers. And if that's -- and, then, we 5 will come back tomorrow morning and put that witness on. 6 C.O. CAFFREY: All right. Let me just add to that -- 7 and thank you, Mr. O'Laughlin. Let me just add to that, 8 again, this would go to the cross-examineers as well. 9 Again, it's difficult at times to determine what's II and 10 II-A. 11 The purpose of allowing these questions with 12 regard to the agreement goes to the institutional 13 arrangements, it's not to turn Phase II into a full-blown 14 protracted proceeding that looks like, walks like, and 15 smells like II-A. So I want everybody to understand that. 16 We want to get all the institutional arrangements on the 17 record, because we got a lot of the technical information 18 as well. 19 That is helpful, Mr. O'Laughlin. I appreciate 20 that. Do we -- the exhibits that you iterated there, I 21 didn't hear it all, that's the rest of your exhibits? 22 MR. O'LAUGHLIN: Yes. The rest of the exhibits, 23 hopefully, will not be as controversial as San Joaquin 24 River Group Authority Exhibit Number 2. And I've talked to 25 your staff during the break, we're in agreement with those CAPITOL REPORTERS (916) 923-5447 1678 1 exhibits so far. So unless there's going to be objections 2 from the other parties I'd like to move those into 3 evidence. 4 MS. WHITNEY: Can you read them into the record? 5 MR. O'LAUGHLIN: Yes, I can, Ms. Whitney. 6 C.O. CAFFREY: Is that what you wanted, 7 Mr. Nomellini? 8 MR. NOMELLINI: Yeah, because some of them were 9 reserved for II-A I think. And I just was not clear that 10 all the rest of them -- 11 C.O. CAFFREY: Correct. Mr. O'Laughlin is going to 12 read them again into the record so we can understand them. 13 MR. NOMELLINI: Thank you. 14 C.O. CAFFREY: Go ahead, Mr. O'Laughlin. 15 MR. O'LAUGHLIN: San Joaquin River Group Authority 16 Exhibit Number 3, Number 6, Number 7, Number 8, Number 9, 17 Number 10, Number 11. And on 11, as you will remember 18 there was 11.1 through 11.6, which were the other Steiner 19 overheads that were submitted into evidence and marked. 20 There's, also, 11.7, which were the disks that 21 were submitted and put on the web site by the State Water 22 Resources Control Board staff. 11.8, as we mentioned 23 earlier today in Mr. Steiner's testimony, I will send out 24 an errata sheet which is for page 11 changing the words, 25 "below normal" to "above normal." CAPITOL REPORTERS (916) 923-5447 1679 1 Number 12, Number 14, Number 14.1, which is an 2 errata sheet for Mr. List's testimony in regards to Figure 3 13 that he testified earlier today on in regards to a 4 typographical error. And Number 19. 5 MS. WHITNEY: Okay. 6 C.O. CAFFREY: Does that meet with your tabulation as 7 well, Ms. Whitney? 8 MS. WHITNEY: Yes. 9 C.O. CAFFREY: All right. Is there any objection to 10 accepting any of those exhibits into the record? 11 MR. JACKSON: No, sir. 12 C.O. CAFFREY: Thank you for that affirmative 13 response, Mr. Jackson. 14 MR. O'LAUGHLIN: Department of the Interior will be 15 next. 16 C.O. CAFFREY: Those exhibits are hereby accepted 17 into the record Mr. Brandt -- excuse me, Mr. Brown? 18 MEMBER BROWN: Mr. Rogers is still under cross. 19 C.O. CAFFREY: Thank you for raising that. But I 20 believe the situation here is that you are going to 21 determine tonight who to present? 22 MR. O'LAUGHLIN: Based on the Chairman's discussion 23 with the staff and with the other Board Members in your 24 directions to us, that is correct. We will meet with the 25 other signatories to the San Joaquin River Agreement and CAPITOL REPORTERS (916) 923-5447 1680 1 decide what party would be best able to respond to the 2 questions posed rather than to the very simple 3 authentication of the documents. It may or may not be 4 Mr. Rogers, we have not yet made that decision. 5 C.O. CAFFREY: Mr. Stubchaer? 6 C.O. STUBCHAER: I think Mr. Brown's point is that 7 Mr. Rogers has testified. And anyone who's testified is 8 subject to cross-examination, I believe. 9 MR. O'LAUGHLIN: Well, right. Then, I will -- if 10 that's the case, I will move to strike Mr. Rogers's 11 testimony. I will withdraw Mr. Rogers's testimony in its 12 entirety. And, if necessary, then, bring him back tomorrow 13 if he's going to be my witness and restart again. 14 C.O. CAFFREY: And I apologize to, Mr. Brown, because 15 he raises a very technical point if we're going to be 16 procedurally correct. Thank you, Mr. Brown. Thank you for 17 the clarification, Mr. Stubchaer. 18 I will accept your offer to withdraw this witness 19 and everything that has been put on the record this 20 afternoon with regard to his testimony and the questions 21 that were asked with the further understanding that he may 22 be the person you present tomorrow. 23 MR. O'LAUGHLIN: Right. Will be stricken. 24 C.O. CAFFREY: Will be stricken. 25 MR. O'LAUGHLIN: Thank you. CAPITOL REPORTERS (916) 923-5447 1681 1 C.O. CAFFREY: Thank you. Mr. Brandt, you wish to 2 offer your exhibits? 3 MR. BRANDT: Yes, Mr. Chairman. I wish to offer at 4 this time Department of the Interior Exhibit 1, including 5 all the attachments including the two additions that will 6 be mailed out, actually, next week I believe; 1.1 and 1.L, 7 or 1-L that we added on during the testimony. As well as 8 2, Exhibit 2 and all its attachments including 2-G, which 9 was also added on, and Exhibit 3 and Exhibit 5 -- 10 C.O. CAFFREY: All right, sir. 11 MR. BRANDT: -- including all the attachments. 12 C.O. CAFFREY: Do you agree with that iteration, 13 Ms. Whitney? 14 MS. WHITNEY: I've got slightly different numbers. 15 I've got 1-I-1, 1-L, and then 2-G modified. There was 16 already 2-G in the record. Other than that, I agree with 17 everything that he said. 18 MR. BRANDT: I agree with that 1-I.1. 19 C.O. CAFFREY: Is there confusion as to what the 20 exhibits are? First we have Mr. Campbell and, then, we 21 have Mr. Nomellini. 22 Mr. Campbell, did you have something? 23 MR. CAMPBELL: I was waiting in line. 24 C.O. CAFFREY: Sorry. Mr. Nomellini, do you want 25 clarification on those exhibits? CAPITOL REPORTERS (916) 923-5447 1682 1 MR. NOMELLINI: We still haven't gotten the June 2 report in there. Is that one of these that you're offering 3 now, or was that -- that's just cleanup on the -- was it 4 101? 5 MR. BRANDT: 101 and I think that one was -- that's 6 already been taken in. 7 MS. WHITNEY: Yes. 8 MR. BRANDT: Yes. 9 MR. NOMELLINI: We're still going to clean that up? 10 MR. BRANDT: Yes. 11 C.O. CAFFREY: Thank you, Mr. Nomellini. Is there 12 any objection to the exhibits as just identified? Hearing 13 and seeing none they'll be accepted into the record. Is 14 Mr. Campbell next? 15 Good afternoon, sir. 16 MR. CAMPBELL: Good afternoon, Matthew Campbell from 17 the Attorney General's Office on behalf of the Department 18 of Fish and Game. At this point we'd like to move that the 19 following exhibits be accepted into evidence DFG Exhibit 1, 20 DFG Exhibit 13, DFG 13-A, DFG 14, DFG 15, DFG 16, DFG 17, 21 DFG 18, DFG 19, there's a trend here, DFG 20 and DFG 21. 22 C.O. CAFFREY: Very nice sequence, Mr. Campbell. Do 23 you agree -- 24 MS. WHITNEY: Yes. 25 C.O. CAFFREY: -- with his iteration? All right. CAPITOL REPORTERS (916) 923-5447 1683 1 Any objection to receiving those exhibits into evidence? 2 MR. JACKSON: No objection. 3 C.O. CAFFREY: Hearing and seeing no objection, they 4 are accepted into the record. Thank you, sir. 5 MR. CAMPBELL: Thank you, Mr. Chairman. 6 MS. WHITNEY: That's it. 7 C.O. CAFFREY: One more. 8 MR. GARNER: Good afternoon, Mr. Caffrey. Eric 9 Garner on behalf of the State Water Contractors. 10 C.O. CAFFREY: Good afternoon, Mr. Garner. 11 MR. GARNER: Good afternoon. At this time we would 12 like to offer the following exhibits into evidence. 13 C.O. CAFFREY: Bear with us. 14 MR. GARNER: And those are State Water Contractors 15 Exhibit 1, State Water Contractors Exhibit 2, and State 16 Water Contractors Exhibits 3-A through 3-M. 17 C.O. CAFFREY: Do you agree with that, Ms. Whitney? 18 MS. WHITNEY: Yes. 19 C.O. CAFFREY: Any objections to receiving these 20 exhibits? 21 MR. JACKSON: Could those be identified, Victoria, 22 what are those? 23 C.O. CAFFREY: You mean described? 24 MR. JACKSON: Yeah, just described. 25 MR. GARNER: They were the exhibits presented in CAPITOL REPORTERS (916) 923-5447 1684 1 connection with Dr. Hanson's testimony. 2 MR. JACKSON: And that's all? 3 MS. WHITNEY: We have a list and I can make a copy of 4 them for you. 5 MR. JACKSON: I have a list somewhere. 6 MS. WHITNEY: They are the overheads he showed while 7 testifying. 8 MR. JACKSON: No objection. 9 C.O. CAFFREY: Is there any objection? All right. 10 Hearing and seeing none, those are accepted into the 11 record. Thank you, Mr. Garner. 12 Mr. Robbins? 13 MR. ROBBINS: Mr. Chairman, I rise for a procedural 14 request. Having previously withdrawn the testimony of 15 Mr. Rogers, I think it might be appropriate if I request 16 from Counsel a stipulation as to the foundation for San 17 Joaquin River Group Authority Exhibit Number 1 and 2 18 subject -- 2, subject to the condition that the River Group 19 Authority and the proponents of the River Group Agreement 20 make available a witness for testimony and 21 cross-examination relative to the document. It may not be, 22 in fact, a signatory, a person whose actual signature is on 23 the document appearing tomorrow. 24 And I'd also request that the -- that the -- I'm 25 not certain that it's -- I'm not sure what the Board's CAPITOL REPORTERS (916) 923-5447 1685 1 ruling was relative to the withdrawing of Mr. Rogers's 2 testimony. 3 C.O. CAFFREY: I think what we're trying to do, if I 4 may be so blunt, is trying to avoid a lot of time dedicated 5 to cross-examination and redirect and recross with the 6 witness that was not satisfactory to the people presenting 7 the case in chief in terms of his expertise. And we 8 allowed the withdrawal of that appearance and we struck it, 9 did we not? 10 MR. ROBBINS: I believe we did, but that may raise a 11 procedural issue. 12 MR. JACKSON: Maybe we can help. 13 C.O. CAFFREY: Excuse me, Mr. Jackson. Before we do 14 that we'll, certainly, let you -- Ms. Leidigh, do you 15 understand the issue here? 16 MS. LEIDIGH: There seems to be two issues. One is 17 what happened with regard to Mr. Rogers's testimony. And 18 my understanding is that you struck his testimony from the 19 record. 20 C.O. CAFFREY: And we have not -- that's right. 21 MS. LEIDIGH: Consequently, they will have to start 22 over again with respect to a witness to address these 23 questions about the San Joaquin River Agreement and the 24 Letter of Support. 25 C.O. CAFFREY: That's what I thought I did. CAPITOL REPORTERS (916) 923-5447 1686 1 MS. LEIDIGH: Yes. The other issue that Mr. Robbins 2 raised, I'm not quite sure what he meant. He was talking 3 about some sort of stipulation. 4 MR. ROBBINS: Well, as an example, we had at least 5 one series of cross that occurred that brought in the fact 6 that Westlands, San Luis and others have -- and I'm not 7 sure that we have consent to withdraw that part of the 8 testimony. That was the point I was trying to get to. 9 C.O. CAFFREY: I still don't -- I don't think I 10 understand the -- 11 C.O. STUBCHAER: Mr. Chairman, why don't we just 12 repeat that part with their primary witness? 13 MR. JACKSON: We can stipulate to that if the 14 gentlemen would accept the stipulation, I think. 15 MR. ROBBINS: If we have no procedural objection from 16 any of the parties, I'll withdraw my request. 17 C.O. CAFFREY: Are there any procedural objections? 18 Mr. Jackson? 19 MR. JACKSON: Essentially, as I understand it what 20 the folks would like to do is have the document -- a 21 stipulation that the document is an authenticate copy of 22 the San Joaquin River Agreement. Right? 23 MR. O'LAUGHLIN: Right. 24 MR. JACKSON: And I would stipulate to that. I don't 25 know about the other folks, but I will. And there was CAPITOL REPORTERS (916) 923-5447 1687 1 also, I guess we can take it as an offer of proof, that the 2 San Joaquin and Mendota -- that a number of parties have 3 signed the agreement since the time that the signatures 4 appeared. And if, Mr. Birmingham, would list them I would 5 be willing to stipulate to that. 6 C.O. CAFFREY: Time out. 7 (Off the record from 3:36 p.m. t 3:38 p.m.) 8 C.O. CAFFREY: I think the clearest way to do it is 9 to just reintroduce the evidence tomorrow. 10 MR. O'LAUGHLIN: Not a problem. 11 C.O. CAFFREY: If the issue is that you were 12 concerned by virtue of our accepting your previous exhibits 13 and that was the end of it, that's not the case. 14 MR. O'LAUGHLIN: No, I know that. 15 C.O. CAFFREY: You can present evidence tomorrow 16 morning when you present whoever it is that's going to 17 speak. 18 MR. O'LAUGHLIN: Right. Mr. Birmingham and I have 19 talked about that and we will confer. And Mr. Birmingham 20 can ask his questions tomorrow of the witness in regards to 21 the new signatories to the agreement since the document was 22 originally offered to the State Water Resources Control 23 Board on June 15th. 24 C.O. CAFFREY: All right. I think that's the 25 cleanest way to do it. All right. All right, then, CAPITOL REPORTERS (916) 923-5447 1688 1 tomorrow morning Mr. O'Laughlin you will present a 2 witnesses that will be available to us for testimony and, 3 then, cross-examination on the agreement; is that correct? 4 MR. O'LAUGHLIN: That's correct, Mr. Chairman. 5 C.O. CAFFREY: All right. Thank you very much. The 6 hour of 20 minutes to 4:00 having arrived -- and after we 7 complete that we will hear the case in chief from 8 Mr. Suyeyasu and the Environment Defense Fund; is that 9 correct, sir? 10 MR. SUYEYASU: As far as I know, yes. 11 C.O. CAFFREY: We haven't forgotten you. All right. 12 MS. KOEHLER: I'm holding 13 C.O. CAFFREY: Ms. Koehler? 14 MS. KOEHLER: I have a quick point of clarification, 15 Mr. Chairman. Assuming things come to a close tomorrow 16 have you ruled, yet, on a time for which rebuttal evidence 17 is necessary for Phase II? 18 C.O. CAFFREY: No, we're going to wait until the very 19 last minute to ask that question, because, generally -- let 20 me put it this way: 21 If somebody has heard something in some 22 cross-examination that is brand new and they want to make a 23 motion, or ask for some time, we'll have to deal with that 24 then. But as soon as we finish this case in chief and the 25 other one presented by the Environmental Defense Fund, CAPITOL REPORTERS (916) 923-5447 1689 1 then, I will ask right then and there for rebuttal 2 arguments. And if anybody has some kind of problem with 3 that, they will have to show the Board some kind of showing 4 that they need more time. 5 MS. KOEHLER: When you say "rebuttal arguments," 6 we'll be able to present rebuttal testimony? 7 C.O. CAFFREY: I mean rebuttal testimony, excuse me. 8 MS. KOEHLER: Okay. Will you be requiring written 9 testimony at that time? 10 C.O. CAFFREY: No. 11 MS. KOEHLER: No written testimony. 12 C.O. CAFFREY: No written testimony. Mr. Brandt? 13 MR. BRANDT: Point of assistance just so you know. I 14 feel able that I will be able to contact Mr. Ploss. He is 15 available tomorrow, but I believe he's out of town next 16 week. So we will do all we can to make sure he's -- he 17 will be here tomorrow. And I guess we will have to get 18 rebuttal done by tomorrow. So we'll be providing a 19 request -- 20 C.O. CAFFREY: That was the other one other loose 21 end, was it not? All right. We will complete that 22 tomorrow as well hopefully. All right. Everybody happy? 23 Everybody clear? Maybe "happy" is too strong a word. I 24 think we know where we are going tomorrow and we'll be 25 anxiously awaiting our very next presentation tomorrow CAPITOL REPORTERS (916) 923-5447 1690 1 morning at 9:00 in this room. Thank you all very much for 2 attending. 3 (The proceedings concluded at 3:44 p.m.) 4 ---oOo--- 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 1691 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 1488 through 1692 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 5th 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 1692