1693 01 02 03 04 05 STATE WATER RESOURCES CONTROL BOARD 06 07 08 09 10 PUBLIC HEARING 11 12 13 13 1998 BAY-DELTA WATER RIGHTS HEARING 14 15 16 17 HELD AT: 18 BONDERSON BUILDING 18 901 NINTH STREET 19 SACRAMENTO, CALIFORNIA 19 20 20 21 21 THURSDAY, JULY 30, 1998 22 9:00 A.M. 22 23 23 24 24 Reported by: ESTHER F. WIATRE 25 CSR NO. 1564 25 APPEARANCES 1694 01 BOARD MEMBERS: 01 02 JOHN CAFFREY, COHEARING OFFICER 02 JAMES STUBCHAER, COHEARING OFFICER 03 JOHN W. BROWN 03 MARY JANE FORSTER 04 MARC DEL PIERO 04 05 STAFF MEMBERS: 05 06 WALTER PETTIT, EXECUTIVE DIRECTOR 06 VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 07 THOMAS HOWARD, SUPERVISING ENGINEER 07 08 COUNSEL: 08 09 WILLIAM R. ATTWATER, CHIEF COUNSEL 09 BARBARA LEIDIGH 10 10 ---oOo-- 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 1695 01 REPRESENTATIVES 01 02 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 02 03 FROST, DRUP & ATLAS 03 134 West Sycamore Street 04 Willows, California 95988 04 BY: J. MARK ATLAS, ESQ. 05 05 JOINT WATER DISTRICTS: 06 06 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 07 P.O. BOX 1679 07 Oroville, California 95965 08 BY: WILLIAM H. BABER III, ESQ. 08 09 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 09 10 ROBERT J. BAIOCCHI 10 P.O. Box 357 11 Quincy, California 11 12 BELLA VISTA WATER DISTRICT: 12 13 BRUCE L. BELTON, ESQ. 13 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 14 15 WESTLANDS WATER DISTRICT: 15 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 16 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 17 BY: THOMAS W. BIRMINGHAM, ESQ. 18 18 THE BAY INSTITUTE OF SAN FRANCISCO: 19 19 GARY BOBKER 20 55 Shaver Street, Suite 330 20 San Rafael, California 94901 21 21 CITY OF ANTIOCH, et al.: 22 22 FREDERICK BOLD, JR., ESQ. 23 1201 California Street, Suite 1303 23 San Francisco, California 94109 24 24 25 25 1696 01 REPRESENTATIVES 01 02 LEAGUE OF WOMEN VOTERS: 02 03 ROBERTA BORGONOVO 03 2480 Union Street 04 San Francisco, California 94123 04 05 UNITED STATES DEPARTMENT OF THE INTERIOR: 05 06 OFFICE OF THE SOLICITOR 06 2800 Cottage Way, Room E1712 07 Sacramento, California 95825 07 BY: ALF W. BRANDT, ESQ. 08 CALIFORNIA URBAN WATER AGENCIES: 08 09 BYRON M. BUCK 09 455 Capitol Mall, Suite 705 10 Sacramento, California 95814 10 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 11 12 MCDONOUGH, HOLLAND & ALLEN 12 555 Capitol Mall, 9th Floor 13 Sacramento, California 95814 13 BY: VIRGINIA A. CAHILL, ESQ. 14 14 CALIFORNIA DEPARTMENT OF FISH AND GAME: 15 15 OFFICE OF ATTORNEY GENERAL 16 1300 I Street, Suite 1101 16 Sacramento, California 95814 17 BY: MATTHEW CAMPBELL, ESQ. 17 18 NATURAL RESOURCES DEFENSE COUNCIL: 18 19 HAMILTON CANDEE, ESQ. 19 71 Stevenson Street 20 San Francisco, California 94105 20 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 21 22 DOOLEY HERR & WILLIAMS 22 3500 West Mineral King Avenue, Suite C 23 Visalia, California 93291 23 BY: DANIEL M. DOOLEY, ESQ. 24 24 25 25 1697 01 REPRESENTATIVES 01 02 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 02 03 LESLIE A. DUNSWORTH, ESQ. 03 6201 S Street 04 Sacramento, California 95817 04 05 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 05 06 BRAY, GEIGER, RUDQUIST & NUSS 06 311 East Main Street, 4th Floor 07 Stockton, California 95202 07 BY: STEVEN P. EMRICK, ESQ. 08 08 EAST BAY MUNICIPAL UTILITY DISTRICT: 09 09 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street 10 Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 11 12 GOLDEN GATE AUDUBON SOCIETY: 12 13 ARTHUR FEINSTEIN 13 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 14 15 CONAWAY CONSERVANCY GROUP: 15 16 UREMOVIC & FELGER 16 P.O. Box 5654 17 Fresno, California 93755 17 BY: WARREN P. FELGER, ESQ. 18 18 THOMES CREEK WATER ASSOCIATION: 19 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 20 Flournoy, California 96029 21 BY: LOIS FLYNNE 21 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 22 23 LAW OFFICES OF SMILAND & KHACHIGIAN 23 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 24 BY: CHRISTOPHER G. FOSTER, ESQ. 25 25 1698 01 REPRESENTATIVES 01 02 CITY AND COUNTY OF SAN FRANCISCO: 02 03 OFFICE OF THE CITY ATTORNEY 03 1390 Market Street, Sixth Floor 04 San Francisco, California 94102 04 BY: DONN W. FURMAN, ESQ. 05 05 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 06 06 DANIEL F. GALLERY, ESQ. 07 926 J Street, Suite 505 07 Sacramento, California 95814 08 08 BOSTON RANCH COMPANY, et al.: 09 09 J.B. BOSWELL COMPANY 10 101 West Walnut Street 10 Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 11 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 12 13 GRIFFTH, MASUDA & GODWIN 13 517 East Olive Street 14 Turlock, California 95381 14 BY: ARTHUR F. GODWIN, ESQ. 15 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 17 Sacramento, California 95814 18 18 PLACER COUNTY WATER AGENCY, et al.: 19 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor 20 Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 21 22 ENVIRONMENTAL DEFENSE FUND: 22 23 DANIEL SUYEYASU, ESQ. 23 and 24 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 25 Oakland, California 94618 25 1699 01 REPRESENTATIVES 01 02 CALAVERAS COUNTY WATER DISTRICT: 02 03 SIMON GRANVILLE 03 P.O. Box 846 04 San Andreas, California 95249 04 05 CHOWCHILLA WATER DISTRICT, et al.: 05 06 GREEN, GREEN & RIGBY 06 P.O. Box 1019 07 Madera, California 93639 07 BY: DENSLOW GREEN, ESQ. 08 08 CALIFORNIA FARM BUREAU FEDERATION: 09 09 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive 10 Sacramento, California 95833 11 11 SANTA CLARA VALLEY WATER DISTRICT: 12 12 MORRISON & FORESTER 13 755 Page Mill Road 13 Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 14 15 CITY OF SHASTA LAKE: 15 16 ALAN N. HARVEY 16 P.O. Box 777 17 Shasta Lake, California 96019 17 18 COUNTY OF STANISLAUS: 18 19 MICHAEL G. HEATON, ESQ. 19 926 J Street 20 Sacramento, California 95814 20 21 GORRILL LAND COMPANY: 21 22 GORRILL LAND COMPANY 22 P.O. Box 427 23 Durham, California 95938 23 BY: DON HEFFREN 24 24 25 25 1700 01 REPRESENTATIVES 01 02 SOUTH DELTA WATER AGENCY: 02 03 JOHN HERRICK, ESQ. 03 3031 West March Lane, Suite 332 East 04 Stockton, California 95267 04 05 COUNTY OF GLENN: 05 06 NORMAN Y. HERRING 06 525 West Sycamore Street 07 Willows, California 95988 07 08 REGIONAL COUNCIL OF RURAL COUNTIES: 08 09 MICHAEL B. JACKSON 09 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 10 11 DEER CREEK WATERSHED CONSERVANCY: 11 12 JULIE KELLY 12 P.O. Box 307 13 Vina, California 96092 13 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 14 15 MODESTO IRRIGATION DISTRICT 15 P.O. Box 4060 16 Modesto, California 95352 16 BY: BILL KETSCHER 17 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 18 SAVE THE BAY 19 1736 Franklin Street 19 Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 20 21 BATTLE CREEK WATERSHED LANDOWNERS: 21 22 BATTLE CREEK WATERSHED CONSERVANCY 22 P.O. Box 606 23 Manton, California 96059 23 24 24 25 25 1701 01 REPRESENTATIVES 01 02 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 02 03 MARTHA H. LENNIHAN, ESQ. 03 455 Capitol Mall, Suite 300 04 Sacramento, California 95814 04 05 CITY OF YUBA CITY: 05 06 WILLIAM P. LEWIS 06 1201 Civic Center Drive 07 Yuba City 95993 07 08 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 08 09 BARTKEWICZ, KRONICK & SHANAHAN 09 1011 22nd Street, Suite 100 10 Sacramento, California 95816 10 BY: ALAN B. LILLY, ESQ. 11 11 CONTRA COSTA WATER DISTRICT: 12 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 13 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 14 15 GRASSLAND WATER DISTRICT: 15 16 DON MARCIOCHI 16 22759 South Mercey Springs Road 17 Los Banos, California 93635 17 18 SAN LUIS CANAL COMPANY: 18 19 FLANNIGAN, MASON, ROBBINS & GNASS 19 3351 North M Street, Suite 100 20 Merced, California 95344 20 BY: MICHAEL L. MASON, ESQ. 21 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 22 R.W. MCCOMAS 23 4150 County Road K 23 Orland, California 95963 24 24 25 25 1702 01 REPRESENTATIVES 01 02 TRI-DAM POWER AUTHORITY: 02 03 TUOLUMNE UTILITIES DISTRICT 03 P.O. Box 3728 04 Sonora, California 95730 04 BY: TIM MCCULLOUGH 05 05 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 06 06 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 07 P.O. Box 1679 07 Oroville, California 95965 08 BY: JEFFREY A. MEITH, ESQ. 08 09 HUMANE FARMING ASSOCIATION: 09 10 BRADLEY S. MILLER 10 1550 California Street, Suite 6 11 San Francisco, California 94109 11 12 CORDUA IRRIGATION DISTRICT, et al.: 12 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 13 P.O. Box 1679 14 Oroville, California 95965 14 BY: PAUL R. MINASIAN, ESQ. 15 15 EL DORADO COUNTY WATER AGENCY: 16 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 17 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 18 19 GLENN COUNTY FARM BUREAU: 19 20 STEVE MORA 20 501 Walker Street 21 Orland, California 95963 21 22 MODESTO IRRIGATION DISTRICT: 22 23 JOEL MOSKOWITZ 23 P.O. Box 4060 24 Modesto, California 95352 24 25 25 1703 01 REPRESENTATIVES 01 02 PACIFIC GAS & ELECTRIC: 02 03 RICHARD H. MOSS, ESQ. 03 P.O. Box 7442 04 San Francisco, California 94120 04 05 CENTRAL DELTA WATER AGENCY, et al.: 05 06 NOMELLINI, GRILLI & MCDANIEL 06 P.O. Box 1461 07 Stockton, California 95201 07 BY: DANTE JOHN NOMELLINI, ESQ. 08 and 08 DANTE JOHN NOMELLINI, JR., ESQ. 09 09 TULARE LAKE BASIN WATER STORAGE UNIT: 10 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue 11 Corcoran, California 93212 12 12 AKIN RANCH, et al.: 13 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor 14 Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 15 16 OAKDALE IRRIGATION DISTRICT: 16 17 O'LAUGHLIN & PARIS 17 870 Manzanita Court, Suite B 18 Chico, California 95926 18 BY: TIM O'LAUGHLIN, ESQ. 19 19 SIERRA CLUB: 20 20 JENNA OLSEN 21 85 Second Street, 2nd Floor 21 San Francisco, California 94105 22 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 23 LYNNEL POLLOCK 24 625 Court Street 24 Woodland, California 95695 25 25 1704 01 REPRESENTATIVES 01 02 PATRICK PORGENS AND ASSOCIATES: 02 03 PATRICK PORGENS 03 P.O. Box 60940 04 Sacramento, California 95860 04 05 BROADVIEW WATER DISTRICT, et al.: 05 06 DIANE RATHMANN 06 07 FRIENDS OF THE RIVER: 07 08 BETSY REIFSNIDER 08 128 J Street, 2nd Floor 09 Sacramento, California 95814 09 10 MERCED IRRIGATION DISTRICT: 10 11 FLANAGAN, MASON, ROBBINS & GNASS 11 P.O. Box 2067 12 Merced, California 95344 12 BY: KENNETH M. ROBBINS, ESQ. 13 13 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 14 14 REID W. ROBERTS, ESQ. 15 311 East Main Street, Suite 202 15 Stockton, California 95202 16 16 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 17 17 JAMES F. ROBERTS 18 P.O. Box 54153 18 Los Angeles, California 90054 19 19 SACRAMENTO AREA WATER FORUM: 20 20 CITY OF SACRAMENTO 21 980 9th Street, 10th Floor 21 Sacramento, California 95814 22 BY: JOSEPH ROBINSON, ESQ. 22 23 23 24 24 25 25 1705 01 REPRESENTATIVES 01 02 TUOLUMNE RIVER PRESERVATION TRUST: 02 03 NATURAL HERITAGE INSTITUTE 03 114 Sansome Street, Suite 1200 04 San Francisco, California 94194 04 BY: RICHARD ROOS-COLLINS, ESQ. 05 05 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 06 06 DAVID SANDINO, ESQ. 07 CATHY CROTHERS, ESQ. 07 P.O. Box 942836 08 Sacramento, California 94236 08 09 FRIANT WATER USERS AUTHORITY: 09 10 GARY W. SAWYERS, ESQ. 10 575 East Alluvial, Suite 101 11 Fresno, California 93720 11 12 KERN COUNTY WATER AGENCY: 12 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 13 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 14 BY: CLIFFORD W. SCHULZ, ESQ. 15 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 17 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 18 19 SAN JOAQUIN COUNTY: 19 20 NEUMILLER & BEARDSLEE 20 P.O. Box 20 21 Stockton, California 95203 21 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 22 CITY OF STOCKTON: 23 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 24 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. 25 1706 01 REPRESENTATIVES 01 02 ORLAND UNIT WATER USERS' ASSOCIATION: 02 03 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 03 P.O. Box 1679 04 Oroville, California 95965 04 BY: M. ANTHONY SOARES, ESQ. 05 05 GLENN-COLUSA IRRIGATION DISTRICT: 06 06 DE CUIR & SOMACH 07 400 Capitol Mall, Suite 1900 07 Sacramento, California 95814 08 BY: STUART L. SOMACH, ESQ. 08 09 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 09 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 10 209 South Locust Street 11 Visalia, California 93279 11 BY: JAMES F. SORENSEN 12 12 PARADISE IRRIGATION DISTRICT: 13 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 14 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 15 16 COUNTY OF COLUSA: 16 17 DONALD F. STANTON, ESQ. 17 1213 Market Street 18 Colusa, California 95932 18 19 COUNTY OF TRINITY: 19 20 COUNTY OF TRINITY - NATURAL RESOURCES 20 P.O. Box 156 21 Hayfork, California 96041 21 BY: TOM STOKELY 22 22 CITY OF REDDING: 23 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 24 Redding, California 96001 25 25 1707 01 REPRESENTATIVES 01 02 TULARE IRRIGATION DISTRICT: 02 03 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 03 2 Sutter Street, Suite D 04 Red Bluff, California 96080 04 BY: ERNEST E. WHITE 05 05 STATE WATER CONTRACTORS: 06 06 BEST BEST & KREIGER 07 P.O. Box 1028 07 Riverside, California 92502 08 BY: GREGORY WILKINSON, ESQ. 08 09 COUNTY OF TEHAMA, et al.: 09 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: 10 P.O. Box 250 11 Red Bluff, California 96080 11 BY: CHARLES H. WILLARD 12 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 14 San Andreas, California 95249 15 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 16 HENRY WILLY 17 6755 Lake Amador Drive 17 Ione, California 95640 18 18 SOLANO COUNTY WATER AGENCY, et al.: 19 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 20 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 21 22 ---oOo--- 22 23 23 24 24 25 25 1708 01 INDEX 01 PAGE 02 ENVIRONMENTAL DEFENSE FUND: 02 OPENING STATEMENT: 03 BY MR. SUYEYASU 1713 03 TESTIMONY OF SPRECK ROSENKRANS: 04 DIRECT EXAMINATION: 04 BY MR. SUYEYASU 1729 05 CROSS-EXAMINATION: 05 BY STAFF 1736 06 BY BOARD MEMBERS 1739 06 BY MR. BIRMINGHAM 1744 07 REDIRECT-EXAMINATION: 07 BY MR. SUYEYASU 1751 08 RECROSS-EXAMINATION: 08 BY MR. BIRMINGHAM 1754 09 09 10 SOUTH DELTA WATER AGENCY: 10 11 REBUTTAL TESTIMONY - LOWELL PLOSS: 11 DIRECT EXAMINATION: 12 BY MR. HERRICK 1759 12 CROSS-EXAMINATION: 13 BY MR. BIRMINGHAM 1780 13 BY MS. ZOLEZZI 1789 14 BY MR. GALLERY 1791 14 BY MR. JACKSON 1799 15 BY MR. NOMELLINI 1827 15 BY MR. HASENCAMP 1832 16 BY STAFF 1848 16 BY BOARD MEMBERS 1852 17 17 SAN JOAQIN RIVER GROUP AUTHORITY: 18 18 TESTIMONY BY KEN ROBBINS AND DANIEL STEINER: 19 CROSS-EXAMINATION: 19 BY MR. MOSS 1868 20 BY MR. HASENCAMP 1869 20 BY MR. SUYEYASU 1874 21 BY MR. HERRICK 1880 21 BY MR. NOMELLINI 1893 22 BY MS. CAHILL 1913 22 BY STAFF 1914 23 BY BOARD MEMBERS 1918 23 24 ---oOo--- 25 1709 01 SACRAMENTO, CALIFORNIA 02 THURSDAY, JULY 30, 1998 03 --oOo-- 04 C.O. CAFFREY: Good morning. I don't want to think 05 that we are getting off to a bad start, but Mr. Brown just 06 asked me how much more time till the morning break. 07 I don't know what he is anticipating this morning, but 08 doesn't bode well. 09 Good morning, all. Here we are again. Still in Phase 10 II. 11 Mr. O'Laughlin, you were going to tell us what you 12 preferred to do with regard to -- I believe you were talking 13 about the San Joaquin Agreement as an exhibit this morning. 14 MR. O'LAUGHLIN: Yes, Chairman Caffrey. What I would 15 like to do is possibly is to -- 16 (Discussion held off the record.) 17 MR. O'LAUGHLIN: That is better. 18 Chairman Caffrey, if I may, I had discussions during 19 the evening time, and we will be able to discuss the San 20 Joaquin River Group Authority Exhibit Number 2 later on this 21 morning if you'd like. 22 We have a scheduling problem, though, however; and that 23 is that Mr. Lowell Ploss who was requested by South Delta 24 Water Agency to appear as a rebuttal witness is leaving the 25 state and won't be back until late next week or early the 1710 01 following week. So rather than call him back in the middle 02 of some other phase, if we get that far, if it is agreeable 03 to the parties, it is agreeable to South Delta Water Agency 04 if we call Mr. Ploss this morning and try to finish Mr. 05 Ploss today, and then allow Mr. Ploss to go about the 06 business of the Federal Government. And then we can finish 07 up with the San Joaquin River Group Exhibit Number 2, and, 08 hopefully, start the affirmative case of EDF and then move 09 to the other rebuttal cases. 10 C.O. CAFFREY: Let me make sure that I haven't lost 11 track. In what capacity is Mr. Ploss being presented today? 12 MR. O'LAUGHLIN: He is being presented as a rebuttal 13 witness by South Delta Water Agency. As you remember, 14 yesterday there was a request by South Delta Water Agency to 15 have Mr. Ploss available. Mr. Brandt has gone to great 16 length to get Mr. Ploss here, but unfortunately Mr. Ploss 17 will not be here next week as he will be out of state on 18 official business and won't be back. 19 Rather than interrupt the proceedings of Phase III or 20 Phase IV, hopefully, sometime in August in calling Mr. Ploss 21 back and leaving Phase II open, we would like to try to get 22 Mr. Ploss done today and then move on to the other issues so 23 we can finish up Phase II in a compact fashion rather than 24 have it spread out in the month of August. 25 C.O. CAFFREY: Mr. Suyeyasu. 1711 01 MR. SUYEYASU: Mr. Chairman, Speck Rosenkrans, who will 02 be testifying in our case in chief today, also has some time 03 conflicts next week. Those aren't quite as bad as going out 04 of state. But it would be much easier for us to put him on 05 today, if possible. 06 MR. O'LAUGHLIN: I have no problem with that, as well, 07 Mr. Chairman. If Mr. Ploss would like to go first and the 08 EDF or EDF and then Mr. Ploss. That would be fine with us. 09 Then we can come back to the issue of San Joaquin River 10 Group Authority Exhibit Number 2. Hopefully, finalize that 11 sometime today and then have other rebuttal cases, as 12 necessary, after that. 13 C.O. CAFFREY: Let me observe the following. If there 14 are no objections to putting Mr. Ploss on early as a 15 rebuttal witness for South Delta, that is agreeable to the 16 Board. 17 The only thing I would add, though, since we normally, 18 procedurally, have rebuttal testimony after all the cases in 19 chief in a phase, it is conceivable that somebody might want 20 to call him back. If that is the case, we cannot deny that 21 due process to that party, so we would have to bring him 22 back when he was available, which would mean that we would 23 have to keep Phase II open for that period of time. 24 Is there any objection, then, to having Mr. Ploss 25 present or appear as a rebuttal witness in this phase now, 1712 01 out of turn, so to speak? 02 Is that all right with you, Mr. Suyeyasu? 03 MR. SUYEYASU: Do we have any idea how long this is 04 going to take? 05 No idea? 06 MR. O'LAUGHLIN: Twenty minutes on direct rebuttal, 07 isn't it? 08 C.O. CAFFREY: What is the regulation? There is no 09 limit? 10 MS. LEIDIGH: There is no limitation. 11 C.O. CAFFREY: There is no limitation. Perhaps that is 12 something we ought to look at in the future, though, after 13 this experience, even redirect is in its own way a form of 14 rebuttal. So it's pretty difficult to limit it. I am 15 getting a note here from Ms. Leidigh. 16 Let's go off the record for a moment. 17 (Discussion held off the record.) 18 C.O. CAFFREY: I have a suggestion from counsel; I 19 think it is a good one. Mr. Stubchaer and I agree. Perhaps 20 the most expeditious way to handle this so we can expedite 21 people's travel and other schedules, it might be to go to 22 the EDF case in chief right now and then at least that may 23 be somewhat predictable, although I don't know how many 24 people may want to cross-examine. That is up to you all. 25 Mr. Suyeyasu, would that be agreeable to you? 1713 01 MR. SUYEYASU: That would be agreeable. And also, they 02 told me rebuttal of Ploss will be relatively short. I won't 03 mind if he went before we did. 04 MR. BRANDT: Just for the record, Mr. Ploss, we are 05 calling him for II-A. He will be back here for 06 cross-examination in II-A. So, I just want to make sure 07 that is clear if there is a II-A, indeed, if there is a 08 II-A. 09 C.O. CAFFREY: I don't want to change my mind too much. 10 Let's go for some variety and have Mr. Suyeyasu's case in 11 chief. 12 Good morning, Mr. Suyeyasu. 13 ---oOo--- 14 TESTIMONY BY THE ENVIRONMENTAL DEFENSE FUND 15 MR. SUYEYASU: Good Morning, Mr. Chairman, Members of 16 the Board. Dan Suyeyasu for the Environmental Defense 17 Fund. 18 As you realize, the Environmental Defense Fund remains 19 opposed to the San Joaquin River Agreement. We do not 20 believe that it provides an equivalent level of 21 environmental protection to the objectives set forth in the 22 Water Quality Control Plan. I realize that over the past 23 few weeks the proponents of the San Joaquin River Agreement, 24 as well as some Members of the Board, may have become a 25 little frustrated with my conspiracy theories regarding the 1714 01 San Joaquin River Agreement. It was even suggested that I 02 was looking for bad men in the closet. 03 What I have at least been trying to do is to figure out 04 how this agreement is actually going to work, how it is 05 going to play out in the hands of the parties to the 06 agreement. It is not that I am looking for bad behavior; I 07 am just trying to figure out what the rational behavior of 08 the parties will be. 09 The terms of the San Joaquin River Agreement, 10 obviously, leave a great deal of discretion to the parties 11 to determine how the pulse flow levels are to be 12 determined. Those same parties also have some discretion to 13 affect what the existing flow will be at Vernalis in a given 14 year. Considering that those same parties are the ones who 15 will also have to provide the water, it is not hard to see 16 that some type of incentive structure will be set up by the 17 San Joaquin River Agreement. And people and businesses 18 respond to incentive structures. 19 Now just as an example: if the IRS were to raise the 20 capital gains tax by 10 percent, would they expect to 21 increase their revenues from the capital gains tax by 10 22 percent? Not likely. That is because we all respond in a 23 day-in-and-day-out basis to the rules set forth by the IRS, 24 and we try to minimize our payments to the government. 25 Consequently, the government may only receive a 6 percent 1715 01 increase in revenues from a 10 percent tax increase. 02 Now, it is possible that people who are planning to 03 sell a house before the increase in the capital gains tax 04 was implemented may now decide not to sell their house. Are 05 those people bad people just because they tried to short the 06 government some money? No. They are just responding to the 07 incentive structures that are set forth. 08 If that happens, is the IRS going to go to them and 09 say, "Well, you were going to sell your house before we 10 raised the tax, so you better still sell it so we can get 11 our 10 percent that we were expecting and that we've already 12 appropriated for next year"? That just doesn't happen. 13 There is no way for the IRS to prove that. 14 We see a similar system of incentives in place under 15 the San Joaquin River Agreement. For instance, a 16 representative from the Merced Irrigation District may spend 17 the morning on the technical committee discussing 18 predictions for existing flow at Vernalis. That afternoon 19 the manager could return to his office, or the person on the 20 technical committee could return to his office, and tell the 21 manager that unless the prediction for the existing flows 22 drops by another 400 cfs before the pulse flow gets here, 23 they are going to have to provide a substantial sum of 24 water, 27,000 acre-feet, or something. I don't know what 25 the number would be. 1716 01 That afternoon the manager is discussing his flood 02 control releases from his reservoirs. He is not quite sure 03 what to do. Should he make the releases in March? Should 04 he make them early April? Should he move them back to May? 05 Might occur to him, "Well, if I make them now, then that 06 water won't be in the river during the pulse flow period and 07 that won't count as the existing flow; maybe we will drop 08 below that next, you know, benchmark and all of a sudden our 09 obligations are reduced." 10 That is not bad behavior; that is just the behavior of 11 a businessman looking at all the variables, all the rules 12 and regulations that are in front of them. We expect them 13 to react to those rules and regulations. 14 Now, if the person goes back to the technical committee 15 and says, "Well, we have actually changed what we thought 16 our operations would be this spring. We are going to 17 release our pulse flows a little earlier than before." Are 18 the people on the technical committee really going to say, 19 "No, you are just doing that because you want to change the 20 existing flow"? 21 There is no way for them to know. It could be that the 22 people at Merced Irrigation District changed their releases 23 for purely benign reasons, purely for flood control reasons. 24 And how are the people in the technical committee going to 25 know what is just coincidence and what is being done is part 1717 01 of an attempt to change the existing flows? 02 The people who will be operating the San Joaquin River 03 Agreement are by and large businessmen. And the San Joaquin 04 River Agreement is a business proposition. Nowhere in the 05 agreement did I read that all the signatories to the 06 agreement have to act as some type of trustees for the fish, 07 and that they must make all decisions with due regard for 08 the interests of the fish. 09 If the Board adopts the agreement, the incentives will 10 take over and there will be nothing that we or the Board can 11 do to insure that the parties to the agreement think about 12 the fish instead of their bottom line. They will be left 13 with the words of the agreement and that is all that we will 14 be able to enforce. 15 Admittedly, the Fish and Wildlife Service and the 16 Department of Fish and Game may be attending some of these 17 meetings, which gives me some sense of security, but I do 18 know how much true authority they will have and what their 19 directives will be. Those people representing the fish on 20 the committee, such as these public agencies in all 21 likelihood, will have no ability to question the operating 22 criteria presented to them by the water users as to what 23 flows will be going down the river during the pulse flow 24 period to determine the existing flow. They will just not 25 have that ability. 1718 01 I am not saying it would be easy to do, but the 02 proponents of the agreement simply have not analyzed how 03 this incentive structure would affect what level flows would 04 actually be provided. I get the impression that they have 05 not done such modeling because they believe that none of 06 them would be tempted to do anything detrimental to the fish 07 merely to get some more water. That, however, is simply not 08 reality as it has been told to me. 09 So, the modeled hydrology is based on the mythical 10 flows, and the biologists based their ever so limited 11 equivalency determinations on this mythical model. Under 12 the San Joaquin River Agreement, the fish will be hurting 13 just as the federal budget would be hurting if Congress 14 appropriated the money from a 10 percent increase in capital 15 gains tax before they actually saw that money come in. 16 EDF remains adamantly opposed to these of restoration 17 fund dollars to pay water users to meet flow standards. 18 Even Bruce Herbold said that it was his biggest concern with 19 the agreement. Not only is it a shame to divert up to $48 20 million for much needed ecosystem restoration projects, 21 using restoration fund as some form of corporate welfare 22 has the potential to establish a dangerous precedent. 23 Now that the San Joaqin River parties have figured out 24 a way to have the public coffers pay for their flow 25 obligations that already exist, do you think it will be long 1719 01 before the rest of the water users in the state follow 02 suit? What the parties are doing is really no different 03 than a company raiding its pension fund in order to pay its 04 workers. Luckily for workers, such abuses on employees have 05 already been outlawed. 06 Now, when I read the San Joaquin River Agreement, it 07 really seems like some type of lesson in double speaking to 08 me. According to the San Joaquin River Agreement it is, 09 quote-unquote, designed to achieve, in conjunction with 10 other non VAMP measures a doubling of natural salmon 11 production. Yet the biologists who testified said they do 12 not actually believe it will cause a doubling in salmon 13 production. 14 It is like buying a car that says it is designed to go 15 60 miles an hour, but you talk to the engineers who say, "We 16 don't believe it will be 60 miles an hour. It might; it 17 might not. We don't know." It doesn't seem like a good 18 deal. 19 The San Joaquin River Agreement parties, quote-unquote, 20 shall cooperatively support efficient and cost-effective 21 management of expenditures from CVPIA restoration fund. But 22 they will also possibly use the restoration fund money to 23 pay for previously existing in-stream flow obligations at a 24 cost of $1000 per acre-foot of increased flow. 25 The San Joaquin River Agreement does not, 1720 01 quote-unquote, seek to change the Water Quality Control Plan 02 objectives. Yes, it wishes to have a decision entered 03 requiring the signatories to the agreement to provide less 04 water than called for in the Water Quality Control Plan. 05 Finally, the San Joaquin River Agreement is, 06 quote-unquote, intended to gather scientific information on 07 the relative affects of flows in the Lower San Joaquin 08 River, Central Valley Project and State Water Project 09 pumping rates. Yet the agreement has numerous provisions 10 under which the flow and expert limits of VAMP need not be 11 met. If these flows and exports are so important to be held 12 constant in order to do the experiment, why don't they 13 commit to actually meet them every year of the agreement? 14 These aspects of the agreement are symptomatic of a 15 larger concern that we have with the San Joaquin River 16 Agreement. That is that the proponents of the agreement 17 have simply failed to bring to the Board a credible 18 settlement proposal that commits to meet the objectives of 19 the Water Quality Control Plan. Trying to limit their 20 potential exposure to the existing obligations, the parties 21 to the San Joaquin River Agreement have brought to the Board 22 a proposal with so many escape hatches and loopholes that it 23 can hardly be taken as any type of credible replacement for 24 the objectives of the Water Quality Control Plan. 25 The only serious commitment that I can see in the 1721 01 agreement is that the state and federal project will 02 backstop the agreement for two years. However, for those 03 two years it is doubtful that the projects will be able to 04 meet the standards of the Water Quality Control Plan, as was 05 testified by Mr. Steiner. 06 No offense is meant to the Board, but given your other 07 obligations, CEQA requirements, the complexities of these 08 issues and the propensity for litigation in this field among 09 the parties to these hearings, I am skeptical that the Board 10 can even make and enforce a water rights decision within two 11 years of the San Joaquin River Agreement demise. 12 If I might just quickly list all the reasons that I 13 believe the agreement will fail before it is completed: 14 Is it likely that every year all the parties to the 15 agreement are going to be able to come to a unanimous 16 decision on how to determine the existing flows, as well as 17 other crucial decisions? Unanimity is a high standard. 18 What happens if no money is available to make the $48 19 million payments? And the Environmental Defense Fund will 20 be making its efforts over the years to make sure that that 21 doesn't happen. 22 What if the Board decides that the narrative objective 23 requires higher flows than those outlined in the Water 24 Quality Control Plan? Does the San Joaquin River Agreement 25 then -- is it no longer equivalent at that point, and must 1722 01 it be revised? Must it come back and be rewritten? 02 I have some questions as to whether the management 03 committee, the technical committee might violate the 04 federal advisory committee law. I guess it is the Federal 05 Advisory Committee Act. I am also wondering if certain 06 parties might be excluded from participating from the 07 management committee and the technical committee by state 08 conflict of interest laws. I think there are some big 09 questions there. 10 Ultimately, the Board has no choice but to find that 11 the agreement does not provide an equivalent level of 12 environmental protection. Even the modelers for the San 13 Joaquin River Agreement illustrated that the San Joaquin 14 River Agreement will lead to numerous violations of the 15 water quality standards on the San Joaquin River. 16 The Old River barrier may improve conditions for San 17 Joaquin, but it appears it will worsen conditions for the 18 Delta smelt and Sacramento salmon runs, federally listed 19 species. Does that sound like a fair trade? I am actually 20 at a loss as to how the Board will decide it is equivalent 21 if we save X salmon on the San Joaquin River but lose Y 22 Delta smelt and Z Sacramento salmon over on the other side. 23 How are they going to make that comparison? 24 Some biologists have spoken to the equivalency of VAMP 25 in the Water Quality Control Plan. They did not compare the 1723 01 San Joaquin River Agreement to what would most likely happen 02 on the Water Quality Control Plan. They assumed no barrier 03 would be installed absent VAMP. 04 We've heard testimony that the barriers already are 05 being installed, and will likely be installed in the 06 future. They assumed that the biological pay for Delta 07 smelt would no long control experts absent VAMP. They do 08 not consider the impacts of the release of hatchery-reared 09 fish. Some did not consider the substantially lower flows 10 called for in the San Joaquin River Agreement, as compared 11 to VAMP. Some relied on hydrological models that simply 12 ignored the realities of human behavior. And they did not 13 consider the experiment would divert $48 million from much 14 needed ecosystem restoration projects; money that would 15 otherwise be used to build upon on baseline protection 16 established by this Board's 1995 Water Quality Control 17 Plan. 18 I would just like to apologize that David Yardas will 19 not be here this morning to join in our joint testimony. 20 I'm afraid that his wife is due to have a baby this week or 21 next, and he is not willing to leave a mile from his home. 22 C.O. CAFFREY: Sounds like a pretty good excuse to me. 23 Thank you, Mr. Suyeyasu. 24 Mr. Birmingham, you rise? 25 MR. BIRMINGHAM: I do, Mr. Chairman. I rise and 1724 01 request that the Board strike Mr. Suyeyasu's statement. Mr. 02 Suyeyasu's statement was not an opening statement. I would 03 like to refer for a moment, if I can, to the hearing notice 04 and revised hearing notice concerning the procedures that 05 will be used in the conduct of these proceedings. 06 The revised notice states that: 07 At each phase, at the beginning of each case 08 in chief, the party or party's attorney may 09 make an opening statement briefly and 10 concisely stating what the proposed evidence 11 is intended to establish. (Reading.) 12 The statement that the Board just heard was an 13 argument. It was not a statement concerning what EDF 14 proposes to establish through the presentation of its 15 evidence. There is an opportunity for parties to submit 16 arguments, but as to the close of the evidentiary 17 proceeding, and that is pretty clearly stated by the hearing 18 notice. 19 It states that: 20 At the close of the hearing or other times, 21 if appropriate, the hearing officers will set 22 a schedule for filing briefs. (Reading.) 23 It is also customary for the Board to establish at the 24 close of a hearing an opportunity for parties to make an 25 oral statement. But the statement that was just heard by 1725 01 the Board was not an opening statement. It was an 02 argument, and I think it should be stricken. 03 C.O. CAFFREY: Thank you, Mr. Birmingham. 04 Anybody else wish to comment after Mr. Suyeyasu does, 05 if he wishes to? 06 MR. SUYEYASU: I know this was not a strict opening 07 statement as would be heard in a trial, but it was my 08 understanding that parties who are presenting a case in 09 chief should make their policy statements that are to come 10 in this hearing and are allowed at the beginning of things 11 during the presentation of their opening statement. I would 12 think that I was making a policy statement regarding some 13 larger issues. 14 C.O. CAFFREY: Thank you, Mr. Suyeyasu. 15 Mr. Birmingham. 16 MR. BIRMINGHAM: The notice is also very clear on who 17 is entitled to make a policy statement. The notice states 18 that: 19 The policy -- that consistent with this 20 regulation the Board will provide an 21 opportunity for presentation of 22 non-evidentiary policy statements or comments 23 by interested persons who are not 24 participating as parties. (Reading.) 25 EDF is participating as a party. And under the notice 1726 01 and procedures that are set forth in the notice, it is not 02 entitled to make a policy statement. 03 C.O. CAFFREY: Thank you, Mr. Birmingham. 04 Thank you, Mr. Suyeyasu. We are going to have a 05 time-out here for a couple minutes. 06 MR. SUYEYASU: May I respond? 07 C.O. CAFFREY: Yes, one last time, Mr. Suyeyasu. Go 08 ahead. 09 MR. SUYEYASU: At some point I was wondering about 10 exactly what these rules said, and I forget if I talked to 11 Ms. Whitney or Ms. Leidigh, but I called to say, "If we 12 wished to make a policy statement, when do we do that?" I 13 believe the response was "During your opening statement." 14 C.O. CAFFREY: I believe that is probably what we have 15 been telling people. We are going to go off the record 16 now. 17 Wait a minute, wait a minute. Mr. Nomellini. 18 MR. NOMELLINI: I rise to join in on behalf of EDF I 19 think that to be overly technical and restrictive at this 20 point in time is inconsistent with what generally has been 21 done in the past. And I don't think it serves a useful 22 purpose to be overly restrictive and overly technical at 23 this stage of the proceeding. 24 C.O. CAFFREY: Thank you, Mr. Nomellini. 25 Yes, Mr. Birmingham. 1727 01 MR. BIRMNGHAM: Mr. Chairman, I don't want to beat a 02 dead horse, but I have observed many hearings conducted by 03 the Water Board, and I have observed that in this hearing we 04 spent an awful lot of time dealing with procedural issues, 05 probably more than at any other hearing. 06 C.O. CAFFREY: And I have observed that also, Mr. 07 Birmingham. It's starting to make me a little grumpy. 08 MR. BIRMINGHAM: I can appreciate that because it 09 consumes an awful lot of time. And if we begin to deviate 10 from the procedures that are set out in the hearing notice, 11 then that will consume an awful lot of time. 12 The reason that I raise this, Mr. Chairman, is that we 13 have a number of phases that we are going to go through in 14 the future, and I have prepared, and I think most of the 15 parties have prepared, based upon what is set forth in the 16 hearing notice. If we deviate from that, it's going to 17 consume an awful lot of time. That's the reason that I have 18 raised this point. 19 In addition, it puts the parties at a disadvantage who 20 would like to be present to hear an argument that might be 21 made to the Board when they based their decision to attend 22 on what is actually in the written notice that they 23 received. And I will not be saying anything further. 24 Thank you. 25 C.O. CAFFREY: That is all right. I have a comment. 1728 01 You have offered me a segue, and I will comment. First of 02 all, I do not share your concern -- I have a concern about 03 the amount of time, but I do not give it the same level of 04 importance as you do. I give due process and fairness the 05 number one thing. If that means that we are going to be 06 here till who knows when, that is how long we will be here. 07 The other thing I want to point out is that the Board 08 has embarked upon this process at the request of many of the 09 lawyers in this room. This process is a new process; it's 10 an experiment. It is a phasing of the taking of the 11 evidence. There is even question that remains before the 12 Board yet as how we actually bridge from the taking of this 13 evidence to an actual decision. There are a lot of open 14 questions. 15 This Hearing Officer, and I think I have the support of 16 the Board, is going to lean towards leniency in the taking 17 of evidence. We do not follow the same rules as are 18 followed in the courtroom. This Board has wide discretion, 19 wide discretion, about what it can hear as evidence. 20 Because the overriding thing when the Board deliberates is 21 the weight of that evidence. 22 Each of these Board Members can decide what piece of 23 evidence has great value, all the way across the spectrum, 24 to no value. So I want everybody here to remember that. 25 We are going off the record. By the way, that 1729 01 statement was not prejudicial to the item before the Board 02 right now. 03 Thank you. 04 (Discussion held off the record.) 05 C.O. CAFFREY: We are back on the record. 06 We have just done a review of our procedures and the 07 correspondence for this hearing, and the ruling is that the 08 opening statement combined with the policy statement is 09 allowable and will stay in the record. 10 Mr. Suyeyasu, please proceed. 11 MR. SUYEYASU: I would now like to present the 12 Environmental Defense Fund's case in chief. I believe our 13 witness has not yet received the oath. 14 (Oath administered by C.O. Caffrey.) 15 ---oOo--- 16 DIRECT EXAMINATION OF SPRECK ROSENKRANS 17 BY THE ENVIRONMENTAL DEFENSE FUND 18 BY MR. SUYEYASU 19 MR. SUYEYASU: Mr. Spreck Rosenkrans, is this a true 20 and correct copy of your statement of qualifications? 21 MR. ROSENKRANS: Yes, it is. 22 MR. SUYEYASU: That is EDF Exhibit 8. 23 Mr. Spreck Rosenkrans, EDF Exhibit 12 here, is this a 24 true and correct copy of your testimony before the Board? 25 MR. ROSENKRANS: Yes, it is. 1730 01 MR. SUYEYASU: Mr. Rosenkrans, would you summarize your 02 testimony for the Board. 03 MR. ROSENKRANS: Yes. Good morning, Mr. Chairman and 04 Members of the Board. 05 My oral testimony today will be limited to a narrowly 06 focused, but very significant, issue related to the 07 equivalent of the level of protection that will be provided 08 under the San Joaquin River Agreement and Vernalis Adaptive 09 Management Program to that which is specified by 1995 Water 10 Quality Control Plan. 11 The most significant issues, of course, are the levels 12 of flow and export which would occur under each scenario. 13 On the flow side, it is clear that the level of flow at 14 Vernalis would be generally lower under the VAMP than under 15 the 1995 Water Quality Control Plan. It is up to the Board 16 to determine whether this reduction of flows is acceptable, 17 given the uncertainty and level of protection on the export 18 side. 19 If it is consideration as to whether this level of flow 20 is acceptable, the Board must first determine whether the 21 distribution of flows, as projected by the San Joaquin River 22 Group's studies, is likely to occur. I will begin by 23 showing a summary of what these projections are. 24 I direct your attention to Table 1 from EDF Exhibit 15 25 (Continued). This is a summary of data provided to me by 1731 01 Mr. Steiner. As has been testified before, the study 02 includes assumptions for both an April pulse and a May 03 pulse. So there are two columns of data that are slightly 04 different. 05 First, the average amount of compliance water changes 06 from 33 to 47,000 acre-feet. And it is perhaps worth noting 07 that under both scenarios the average increase over an 08 entire year of flow at Vernalis is expected to be only 4,000 09 acre-feet. In other words, most of this flow is made 10 available through reoperation rather than through a decrease 11 in consumptive use. 12 The agreement contains a cap of 110,000 acre-feet that 13 must be made available by the tributary parties. The VAMP 14 would call for more water than that in some of the 15 double-step years, and, again, that's estimated to be, 16 according to Mr. Steiner's numbers, 7 percent of all the 17 years under the April pulse and 13 percent under the May 18 pulse. 19 What the agreement does purport to provide is certain 20 assumptions about how often each of the target flow levels 21 will be provided, how often would the flow be at exactly 22 7000 cfs or very close to 7000 cfs, how often would it be at 23 5700 cfs, 4450, 3200 and 2000 cfs. And, again, how often 24 would there be no compliance water released due to the 25 relaxation criteria, basically, which would occur when after 1732 01 -- in the third year of a dry sequence. 02 It's really these percentages that are on Table 2 here 03 that the San Joaquin River group is offering to the Board in 04 its agreement as a frequency of flows which in combination 05 with the exports would be equivalent. 06 As we have heard in previous testimony at some length, 07 the frequency of these flow levels depends on the 08 projections of existing flow that are provided by the 09 hydrology group. Those projections significantly affect the 10 amount of water that must be provided under the agreement. 11 There is no precedent for setting an in-stream flow 12 requirement in this way in which those who provide the water 13 are so closely connected to those who would provide the data 14 to the hydrology group, and also play a significant role in 15 determining existing flow. 16 We've already heard from two witnesses that a very 17 small change in forecasting can lead to a large change in 18 compliance obligation. The gaming incentive which would be 19 created by situation would constitute an inherent conflict 20 of interest. EDF believes it would be better to replace 21 this highly ambiguous approach with one that defines the 22 tributaries' obligation as a simple function of hydrologic 23 conditions, such as the 60-20-20 index. Such an approach 24 could result in an identical level of protection at a nearly 25 distribution of obligations by the tributary parties. 1733 01 I now direct your attention to Table 2 from EDF Exhibit 02 15 (Continued). 03 Table 2 was constructed to be equivalent to the 04 assumptions for a May pulse as modeled by Mr. Steiner. 05 Since 45 percent of the years, under the May pulse, would 06 have flows at 7,000 or above, I picked the 45 percent 07 highest numbers under the historical 60-20-20 index to 08 correspond to this level. In other words, the proposal here 09 is that if the 60-20-20 index under a May pulse were used, 10 and that number were 3.16 million acre-feet or higher, then 11 a target of 7,000 or greater would be implemented. 12 Similarly, since 11 percent of the years, as modeled by 13 Mr. Steiner, would have a flow of 5700, the next 11 percent 14 of years, according to the 60-20-20 index, would correspond 15 to a flow level of 5700 cubic feet per second. According to 16 the historical records of the 60-20-20 index, this level 17 would be between 2.741 million acre-feet and 3.160 million 18 acre-feet. 19 I won't repeat the same argument or the same discussion 20 for the following rows of the table. It's simply a matter 21 of picking elements from the 60-20-20 index, picking numbers 22 from the historical index to correspond to the frequency of 23 flows as offered by the San Joaquin River Agreement. 24 I would like to direct your attention now to Table 3, 25 please. 1734 01 Using this criteria for the May pulse as well as 02 similar criteria for the April pulse, I compared the average 03 amount of compliance water required under each year type to 04 those projected by Mr. Steiner. 05 Let me make clear, first of all, that the demarcations 06 of the 60-20-20 index, which were implied by finding a level 07 of equivalency in this analysis to that provided by Mr. 08 Steiner, are not exactly the year type criteria. But since 09 we are more familiar with the year type criteria, I 10 summarized it by the 60-20-20 year type. 11 As we can see, the average amount of compliance water 12 is almost identical; 35 under the San Joaquin River 13 Agreement proposal, 34,1000 acre-foot less in the 60-20-20 14 agreement, and again 1,000 acre-foot less for the May pulse. 15 The maximum numbers do change a bit. 16 There was one year out of the model, this would be a 17 142 years since we did the 71 year sequence twice, in which 18 the maximum impact would be greater. That is the 182 number 19 that occurs in the above normal year under the May pulse. I 20 don't recall the exact year, but, as I recall, it was a 21 fairly wet year following a drought. The unimpaired flow 22 into the tributary reservoirs in that year was very high. 23 The reservoirs were really low. And if they did not have to 24 make an environmental release, they would have the ability 25 to retain that water. But the actual hydrologic criteria in 1735 01 that year called for a high flow. 02 Other than that 182 number, I won't go through the 03 table column by column or row by row. I will just state 04 that it is generally very, very close. It actually has a 05 slightly lower level of compliance flows for most of the 06 drier years, dry and critical years, and slightly higher 07 level of compliance water suggested for some of the wetter 08 years. 09 I did not go to the lengths that Mr. Steiner did. I 10 did not run SANJASM. I did not run PROSIM. I did not 11 attempt to address the water quality agricultural issues at 12 Vernalis either. I provide these results to merely show 13 that it is a simple matter to assure the same level of 14 protection which is specified by the agreement without the 15 highly suspect method of using the existing flow estimates, 16 which are provided by the parties themselves as a means to 17 determine how much compliance water must be provided. 18 Thank you. 19 C.O. CAFFREY: Thank you, sir. 20 That completes your testimony? 21 MR. ROSENKRANS: Yes. 22 C.O. CAFFREY: By a showing of hands, how many parties 23 wish to cross-examine this witness? 24 No one wishes to cross-examine? 25 All right, that is a first in this proceeding. Where 1736 01 does this leave us. Does that leave us at the point where 02 we offer exhibits? 03 MS. LEIDIGH: Yes. For EDF they can offer their 04 exhibits at this point. After that, I think that probably 05 it will be Mr. Ploss' turn with South Delta. 06 C.O. CAFFREY: I also should -- when I asked if there 07 was anybody wishing to cross-examine, I did mean to include 08 the staff, even though I didn't ask separately. 09 Do you have your hand up, Mr. Howard? 10 MR. HOWARD: Just a couple of questions. 11 ---oOo-- 12 CROSS-EXAMINATION OF THE ENVIRONMENTAL DEFENSE FUND 13 BY STAFF 14 MR. HOWARD: I am looking at your Table 1, and I don't 15 understand the third, the fourth row, the average additional 16 water required all year, 1 and 3,000 acre-feet. 17 Could you tell me what that number is, exactly. 18 MR. ROSENKRANS: As we have all seen, the agreement or 19 the VAMP experiment contains a number of years with flow 20 projections at certain levels. 21 C.O. CAFFREY: Mr. Brown? 22 MEMBER BROWN: Have him back up to the question. I am 23 lost here. 24 C.O. CAFFREY: Would you repeat the question, Mr. 25 Howard. 1737 01 MR. HOWARD: I was just trying to ascertain what the 02 fourth row was, what information was being conveyed in that 03 fourth row on Table 1. 04 MEMBER BROWN: Average? 05 MR. HOWARD: Average additional water required all 06 years. 07 MR. ROSENKRANS: The VAMP program calls for certain 08 flows in certain years. The San Joaquin River Agreement 09 agrees to provide that water up to a maximum of 110,000 10 acre-feet. 11 In some years the amount of water required to reach the 12 target flow level will be greater than 110,000. And that 13 water will have to be found elsewhere or that target flow 14 will not be met. 15 Those years would occur, by these estimates, 7 percent 16 of the time under the April scenario and 13 percent of the 17 time under the May scenario. If we take the total amount of 18 water required over the entire 71-year hydrology that is 19 above the 110,000 acre-foot limit and divide it by 71, we 20 get the fourth row, average additional water required in all 21 years. 22 MR. HOWARD: Thank you. I understand. 23 You had also made the comment that there is no 24 precedent for parties who are required to provide the flow 25 to establish whether or not -- to establish standards based 1738 01 on existing flows and measure them, be responsible for 02 measuring those flows. 03 Are you aware of the X2 standard that is in the Board 04 1995 Bay-Delta plan and do you see any relationship between 05 this type of standard and the existing X2 standard? 06 MR. ROSENKRANS: I am aware of the X2 standard, and I 07 am aware that one could make the argument that the 08 Department of Water Resources both measures the water that 09 flows into the reservoirs in a proceeding month, which does 10 trigger the requirement in the following month. If I may, 11 however, state that I think it is a very different situation 12 for a number of reasons. 13 First of all, the stair-step level here is quite -- 14 comparatively large in going from one target flow level to 15 the next. 16 X2 has fairly small and many, many intermediate flow 17 levels. The Department of Water Resources operates only one 18 of the eight reservoirs that is part of the eight river 19 indices which determines the X2 standard. 20 Further, the Department of Water Resources is a public 21 agency and a very large public agency. They have a role in 22 measuring the hydrology and publishing Bulletin 120, which 23 is largely a part and distinct from its role in 24 administering the State Water Project. 25 The situation on the San Joaquin, is some of the very 1739 01 same people with more private interests in a hydrology group 02 that may or may not include any representatives of 03 environmental or fishing groups, and the circle is much 04 closer and much tighter, and I don't think is a fair 05 comparison. If I did say there was no precedent and used 06 the exact words that you said, then I misstated it. 07 My argument that there is a real potential here for a 08 gaining incentive, which constitutes a conflict of interest, 09 stands. 10 MR. HOWARD: Thank you. 11 C.O. CAFFREY: Any questions of Mr. Rosenkrans from the 12 Board Members? 13 Ms. Forster. 14 ---oOo--- 15 CROSS-EXAMINATION OF THE ENVIRONMENTAL DEFENSE FUND 16 BY BOARD MEMBERS 17 MEMBER FORSTER: You made a comment that this would not 18 be a decrease in consumptive use but a change in operation. 19 Do you think that really matters if the water is made 20 available for the fish? 21 MR. ROSENKRANS: It matters, perhaps, in two ways. One 22 is whether it is appropriate use of public funds to purchase 23 this water, knowing that we are purchasing reoperation. And 24 it matters what happens on the river during other times of 25 the year. We have heard substantial concern from Delta 1740 01 interests that the ag water quality standards are fairly 02 frequently violated during summer periods, and this may 03 contribute to such violations. 04 MEMBER FORSTER: Thank you. 05 C.O. CAFFREY: Anything from the rest of the Board? 06 Thank you, Mr. Rosenkrans. 07 Mr. Suyeyasu. Do you wish to offer your exhibits? 08 MR. SUYEYASU: Yes, please. 09 C.O. CAFFREY: I am sorry, technically that is 10 cross-examination. Do you wish to offer redirect? 11 MR. SUYEYASU: No, thank you, Mr. Chairman. 12 C.O. CAFFREY: Now do you wish to offer your exhibits? 13 MR. SUYEYASU: Mr. Chairman, I would like to offer into 14 evidence EDF Exhibit 8, as well as EDF Exhibit 12, which 15 incorporates by reference EDF Exhibits 13, 14 and 15. 16 C.O. CAFFREY: Ms. Whitney, do you synchronize with 17 that? 18 MS. WHITNEY: Yes. 19 C.O. CAFFREY: Mr. O'Laughlin. 20 MR. O'LAUGHLIN: I have an objection to EDF Exhibit 21 13. There has been no testimony today to authenticate the 22 document, nor was Mr. Graph present to be cross-examined on 23 the document. I would ask that that document not be 24 admitted. 25 C.O. CAFFREY: You are talking about Mr. Yardas? 1741 01 MR. O'LAUGHLIN: No. Signed by Mr. Graph. It is a 02 letter dated April 28, 1998, EDF Exhibit 13, and Mr. Graph, 03 senior attorney, signed it, moving into evidence. He has 04 not been here to testify, to subject himself to 05 cross-examination. 06 C.O. CAFFREY: Thank you, Mr. O'Laughlin. 07 Mr. Birmingham. 08 MR. BIRMNGHAM: I have an objection to Exhibit 12 on 09 the grounds that Mr. Yardas, who was one of the authors of 10 that exhibit, is not present to subject himself to 11 cross-examination, and to the extent that it was Mr. Yardas' 12 testimony that lays the foundation for Exhibits 14 and 15, I 13 object to the introduction of those exhibits on the grounds 14 that there is no foundation. 15 C.O. CAFFREY: Thank you, sir. Let's start with -- 16 I'm sorry, do you have a comment, Mr. Suyeyasu? 17 MR. SUYEYASU: I believe that Mr. O'Laughlin has made a 18 good objection, and I will not move to have Exhibit 13 moved 19 into evidence. As to exhibits -- Mr. Yardas' portion of his 20 testimony, it is the joint testimony of these two gentlemen, 21 and we've already had multiple items of joint testimony 22 offered into evidence with only one of the authors here to 23 be cross-examined, which is Mr. List and Mr. Paulsen. 24 C.O. CAFFREY: Mr. Jackson, you rise. 25 MR. JACKSON: The same thing. I would make the same 1742 01 motion to strike Professor List's testimony if -- 02 C.O. CAFFREY: First an observation about Mr. 03 O'Laughlin's motion. I join in your agreement with Mr. 04 O'Laughlin, and that would -- that is certainly a consistent 05 thing to do in terms of what we did in the previous 06 situation yesterday. 07 Ms. Leidigh. 08 Thank you. 09 MS. LEIDIGH: On that point I would like to point out 10 that the EIR comments are all in staff exhibits, and so they 11 are already part of the record. 12 C.O. CAFFREY: Which exhibit are you referring to? 13 MS. LEIDIGH: Exhibit 13. 14 C.O. CAFFREY: 13 is which testimony? 15 MS. LEIDIGH: Exhibit 13 of EDF is EDF Summary of 16 Comments -- 17 C.O. CAFFREY: Graph's letter? 18 MR. O'LAUGHLIN: That is public workshop, 19 Barbara. 20 MS. LEIDIGH: That is a staff exhibit. It is a 21 different staff exhibit, but it is part of the workshop 22 record and it is part of the Board's files. 23 C.O. CAFFREY: So the Graph letter is withdrawn, and it 24 is an evidentiary exhibit, correct? 25 MR. SUYEYASU: Yes. 1743 01 C.O. CAFFREY: Of course, then that is not accepted. 02 With regard to the testimonial exhibit of Mr. 03 Rosenkrans and Mr. Yardas -- let's go off record for just a 04 second. 05 (Discussion held off the record.) 06 C.O. CAFFREY: Thank you. We are back on record. 07 With regard to the other objection made by Mr. 08 Birmingham, the other exhibits pertaining to Mr. Yardas' 09 absence, we will accept those. That is to be consistent 10 with what we've done. 11 MR. BIRMINGHAM: Excuse me, Mr. Chairman, with respect 12 to prior testimony, there was no objection. There are lots 13 of instances in which evidence, otherwise, would be 14 objectionable, is submitted or admitted because there is no 15 objection. Here I am objecting, and I think that I have a 16 right to cross-examine Mr. Yardas who is being offered as a 17 policy witness. Mr. Rosenkrans is being offered as a 18 hydrologist. And there is a fundamental distinction between 19 what is stated in his hydrology is testimony and what is 20 stated in Mr. Yardas' policy testimony. 21 C.O. CAFFREY: Thank you, Mr. Birmingham. Your 22 objection is noted in the record. My ruling still stands. 23 We will accept the evidentiary exhibit in the absence of Mr. 24 Yardas. 25 MR. SUYEYASU: Thank you, Mr. Chairman. 1744 01 C.O. CAFFREY: The exhibits, with the exception of, I 02 believe it was, Number 13, Mr. Graph's letter, are accepted 03 into the record. 04 Now, that takes us to the point where, I believe, we 05 are going to call Mr. Ploss. 06 MR. BIRMINGHAM: In light of your ruling, I would like 07 to ask leave to cross-examine this witness. 08 C.O. CAFFREY: You wish to cross-examine this witness? 09 MR. BIRMINGHAM: Yes, I do. 10 C.O. CAFFREY: I think that is fair. I will allow you 11 to do that, Mr. Birmingham. 12 ---oOo--- 13 CROSS-EXAMINATION OF THE ENVIRONMENTAL DEFENSE FUND 14 BY WESTLANDS WATER DISTRICT 15 BY MR. BIRMINGHAM 16 MR. BIRMINGHAM: Mr. Yardas, my name is Tom Birmingham. 17 I am the attorney that represents Westlands Water District 18 and San Luis and Delta-Mendota Water Board. 19 MR. SUYEYASU: Objection. Mr. Yardas is not present. 20 MR. BIRMINGHAM: Excuse me, Mr. Rosenkrans. Pardon me. 21 I would like to turn first to EDF Exhibit 12, which 22 has been marked and admitted into evidence. This is 23 testimony of David Yardas and Spreck Rosenkrans. 24 Can you tell me, Mr. Rosenkrans, which portions of 25 Exhibit 12 you are responsible for drafting? 1745 01 MR. ROSENKRANS: In terms of the exact words, it is 02 hard to say. I remember that I worked on this with Mr. 03 Yardas and Mr. Suyeyasu and approved the final. I don't 04 remember much about the exact words. 05 MR. BIRMINGHAM: You can't tell me which of these exact 06 words you were responsible for drafting? 07 MR. ROSENKRANS: Well, you know, if you directed my 08 attention to one part or another, I could probably give you 09 an idea. I don't know whether -- you know, just looking at 10 the whole thing, I don't remember which paragraphs or parts 11 of paragraphs. I have to look through it and think about it 12 bit by bit. 13 Is that what you'd like me to do? 14 Mr. BIRMINGHAM: No, that's all right. 15 In response to a question by Mr. Howard, you said if 16 you used the words that there is no precedent for a 17 situation in which the entity that is to provide water for 18 flows is responsible for measuring the water to determine 19 the flows, that probably is an overstatement. 20 Is that correct? 21 MR. ROSENKRANS: I don't remember my exact words. It 22 is possible that I did overstate it. I thought my answer to 23 Mr. Howard clarified that question. 24 MR. BIRMINGHAM: Are you familiar with the water rights 25 Decision 1631? 1746 01 MR. ROSENKRANS: No. 02 MR. BIRMINGHAM: So if water rights Decision 1631 03 imposed an obligation on a water user to measure water and 04 anticipate the amount of water that would be in a stream 05 system, to calculate the amount of water that it would 06 release to comply with the water rights decision, that would 07 be another situation where the water user calculates 08 existing flow and makes releases based upon that existing 09 flow; is that correct? 10 MR. ROSENKRANS: I am not sure. If a situation exists 11 in which there is no good example of this, then the system 12 exists and if it is correct, it is correct. 13 MR. BIRMINGHAM: You've indicated in response to a 14 question by Board Member Forster that it does make a 15 difference if the water is still consumptively used, and you 16 stated that two things: Number one, that public funds are 17 being used to acquire this water, and, number two, that 18 there are water quality issues that have been identified by 19 Delta water users. 20 Was that your testimony? 21 MR. ROSENKRANS: Yes. 22 MR. BIRMINGHAM: Now what are the public funds that you 23 are referring to? 24 MR. ROSENKRANS: Some of these funds -- my 25 understanding is that it's not entirely clear where the 1747 01 funding would come from for San Joaquin River Agreement, 02 that some of these funds are likely to come from the Central 03 Valley Project Improvement Act Restoration Fund and some are 04 likely to come through the State of California. 05 MR. BIRMINGHAM: Would you have an objection if funds 06 came from the Central Valley Project Improvement Act fund, 07 restoration fund? 08 MR. ROSENKRANS: I think it's a question of how much 09 and for what part. 10 MR. BIRMINGHAM: If the entire federal share of the 11 obligation to pay the San Joaquin River Group Authority came 12 from the very Central Valley Project Improvement Act 13 Restoration Fund, would your organization object to that? 14 MR. ROSENKRANS: I don't know. 15 MR. BIRMNGHAM: It is correct, isn't it, that the 16 Central Valley Project Improvement Act Restoration Fund is a 17 fund created by the Central Valley Project Improvement Act? 18 MR. ROSENKRANS: Yes. 19 MR. BIRMINGHAM: It is a fund into which water users 20 who receive water from the Central Valley Project pay money? 21 MR. ROSENKRANS: That's correct. 22 MR. BIRMINGHAM: The purpose of the fund is to mitigate 23 environmental impacts created by operation of the Central 24 Valley Project? 25 MR. ROSENKRANS: That is correct. 1748 01 MR. BIRMINGHAM: One of the impacts of the operation of 02 the Central Valley Project is to reduce flows in the San 03 Joaquin River? 04 MR. ROSENKRANS: That's correct. 05 MR. BIRMINGHAM: And increasing flows in the San 06 Joaquin River would, from your perspective, be an 07 environmental enhancement? 08 MR. ROSENKRANS: That's correct. 09 MR. BIRMINGHAM: So the Central Valley Improvement Act 10 restoration funds are used to acquire water to increase 11 flows in the San Joaquin River. The fund is being used for 12 the purpose intended by Congress? 13 MR. ROSENKRANS: That's correct. 14 MR. BIRMINGHAM: You indicated that -- 15 MR. ROSENKRANS: May I finish my answer to this 16 question, please? 17 C.O. CAFFREY: Go ahead, Mr. Rosenkrans. 18 MR. ROSENKRANS: Congress certainly intended the use of 19 these funds to be used to, among other things, to purchase 20 additional flows on rivers. I don't think Congress intended 21 these funds to be used to pay for other already existing 22 obligations that these funds were primarily intended to be 23 used for supplemental needs. 24 MR. BIRMINGHAM: Can you tell me under what water 25 rights order any member of the San Joaquin River Group 1749 01 Authority has an obligation to release water above the 02 minimum in-stream flows created by FERC or this Water Board? 03 MR. ROSENKRANS: I think that there is no such order 04 and that is why we are here today. 05 MR. BIRMINGHAM: So if the restoration funds are used 06 to acquire water, which members of the authority are not 07 obligated to release under any existing order, supplemental 08 water is being acquired; isn't that correct? 09 MR. ROSENKRANS: I don't know exactly what definition 10 of "supplemental water" you are using. 11 MR. BIRMINGHAM: I am using the term that you used, Mr. 12 Rosenkrans; what did you mean by supplemental water? 13 MR. ROSENKRANS: Supplemental water to me means that 14 the level of flow above existing requirement. 15 MR. BIRMINGHAM: You have just indicated to me that 16 there are no existing requirements that are being imposed on 17 members of the San Joaquin River Group Authority to increase 18 releases from their reservoirs above the releases required 19 by FERC or minimum releases required by this Board; isn't 20 that correct? 21 MR. ROSENKRANS: I suppose I would like to distinguish 22 between the standard in the Water Quality Control Plan, 23 which exists, there is no mechanism for meeting that 24 standard, and, I suppose, when I said "supplemental water," 25 I was thinking of water beyond the standard set. And I 1750 01 apologize if I didn't get the wording correctly. 02 We have a perspective when the State Board sets a 03 standard that it is a standard that should be implemented 04 in general without having to pay people to implement it. 05 MR. BIRMINGHAM: Let's turn to that for a moment. The 06 second reason that you said if consumptive use of water 07 weren't reduced you would have an objection to the San 08 Joaquin River Agreement was because of water quality 09 standards in the Delta; is that correct, in response to the 10 question? 11 MR. ROSENKRANS: That is a possible consequence of any 12 change in operations on the San Joaquin River as Mr. 13 Hildebrand had made me aware of a couple hundred times. 14 MR. BIRMINGHAM: You've indicated in your direct 15 testimony that you haven't looked at those water quality 16 issues; isn't that correct? 17 MR. ROSENKRANS: Yes, that is correct. 18 MR. BIRMINGHAM: Let's turn for a moment to a question 19 of equivalency. As I understand the testimony that you have 20 provided, it is your view that the flows that are being 21 provided under the San Joaquin River Agreement will not 22 provide equivalent protection to the Bay-Delta ecosystem; is 23 that correct? 24 MR. ROSENKRANS: The flows are lower than those under 25 the Water Quality Control Plan. 1751 01 MR. BIRMINGHAM: You're basing that opinion on your 02 analysis of the flows in the San Joaquin River compared to 03 -- under the agreement compared to the flows under the Water 04 Quality Control Plan? 05 MR. ROSENKRANS: Yes. I thought that was what the 06 purpose of this hearing was. 07 MR. BIRMINGHAM: Isn't it correct, Mr. Rosenkrans, that 08 the San Joaquin River Agreement also limits exports? 09 MR. ROSENKRANS: That's correct. 10 MR. BIRMINGHAM: And the limitations on exports that 11 are imposed under the San Joaquin River Agreement are 12 greater than the limitations imposed on by the Water Quality 13 Control Plan? 14 MR. ROSENKRANS: That's correct. 15 MR. BIRMNGHAM: I have no further questions. 16 C.O. CAFFREY: Thank you, Mr. Birmingham. 17 Any redirect, Mr.Suyeyasu? 18 MR. SUYEYASU: Yes. 19 C.O. CAFFREY: Please proceed, sir. 20 ---oOo--- 21 REDIRECT-EXAMINATION OF THE ENVIRONMENTAL DEFENSE FUND 22 BY MR. SUYEYASU 23 MR. SUYEYASU: Now, you just stated that the export 24 limits under the San Joaquin River Agreement are lower than 25 those called for under Water Quality Control Plan; is that 1752 01 correct? 02 MR. ROSENKRANS: Yes, that is correct. 03 MR. SUYEYASU: Now, in your experience in the world of 04 water management, do you know of any other export 05 limitations that may be in effect if the Water Quality 06 Control Plan is implemented by the Board? 07 MR. BIRMINGHAM: I am going to object to the question 08 on the grounds of vague and ambiguous. 09 C.O. CAFFREY: Can you -- do you understand the 10 question? Does the witness understand the question? 11 MR. ROSENKRANS: I do. I would like to qualify my 12 answer which, I hope, would satisfy both the question and 13 Mr. Birmingham's objection. 14 C.O. CAFFREY: I don't want you to recreate the 15 question. I just want you to answer the question, if you 16 understand, otherwise I am going to instruct the attorney to 17 ask you another one. 18 Do you understand the question, and do you have an 19 answer? 20 MR. ROSENKRANS: I don't understand the question. 21 C.O. CAFFREY: Try again, Mr. Suyeyasu. 22 MR. SUYEYASU: Do you know of any export limits that 23 you expect to be in effect if the Board implements the Water 24 Quality Control Plan? 25 MR. ROSENKRANS: Independent of implementation or 1753 01 coincident of implementation of the Water Quality Control 02 Plan, there are other factors that effect the export levels 03 during the pulse flow period. First of all, there is the 04 Delta Smelt Biological opinion, which I understand to limit 05 export pumping during the pulse flow period to approximately 06 one-half of San Joaquin River inflow. 07 Similarly, were the San Joaquin River Agreement not 08 adopted by the Board, it is my belief that the Department of 09 the Interior would request to implement an earlier version 10 of Delta Action Number One in its AFRP which would call for 11 greater, more stringent export restrictions than would be 12 called for under the San Joaquin River Agreement. 13 I will freely admit that that issue is contentious. 14 The state -- the Department of Water Resources has 15 threatened not to cooperate with the Department of Interior 16 in that respect, and it is also a matter currently before 17 the courts. 18 MR. SUYEYASU: No further questions. 19 C.O. CAFFREY: Does anybody wish to -- I believe we -- 20 Ms. Leidigh, don't he have to allow everybody to 21 recross since that redirect was new testimony? It isn't 22 just a matter with Mr. Birmingham; of course, I will allow 23 Mr. Birmingham to go first. I believe we have to allow 24 others, as well. 25 MS. LEIDIGH: It would be based on the redirect. 1754 01 C.O. CAFFREY: Correct. 02 Understanding that any other or any recross has to be 03 based entirely on the redirect, does anybody else besides 04 Mr. Birmingham wish to recross-examine this witness? 05 No one responding, please proceed, Mr. Birmingham. 06 ---oOo--- 07 RECROSS-EXAMINATION OF THE ENVIRONMENTAL DEFENSE FUND 08 BY WESTLANDS WATER DISTRICT 09 BY MR. BIRMINGHAM 10 MR. BIRMINGHAM: Mr. Rosenkrans, in response to the 11 redirect examination, you testified that it is your 12 understanding that if the San Joaquin River Agreement were 13 not adopted by the Board, that the export limitations 14 imposed by the Delta Smelt Biological Opinion may restrict 15 exports from the Delta; is that correct? 16 MR. ROSENKRANS: Yes. 17 MR. BIRMINGHAM: Those restrictions may be greater than 18 the restrictions imposed by the 1995 Water Quality Control 19 Plan? 20 MR. ROSENKRANS: Yes, that is correct. 21 MR. BIRMINGHAM: Isn't it correct, Mr. Rosenkrans, that 22 the issue before this Board is whether or not the San 23 Joaquin River Agreement is equivalent to the 1995 -- will 24 provide equivalent protection to the 1995 Water Quality 25 Control Plan? 1755 01 MR. SUYEYASU: Objection. That calls for legal 02 conclusion. 03 C.O. CAFFREY: Well, we've -- to the best of our 04 ability, this Board and this Hearing Officer, have been 05 trying to deal with that particular type of objection. What 06 we have been saying is that there are wide levels of 07 expertise among these witnesses, and we are going to ask the 08 witness to answer the question to the best of his ability. 09 Please do so. 10 MR. ROSENKRANS: I will answer the question to the best 11 of my ability. I suppose I don't know the context under 12 which the Board should consider equivalency, whether it is 13 exactly the export limit in the Water Quality Control Plan 14 or the export limit that they expect to be implemented 15 either through the Biological Opinion or through the Central 16 Valley Project Improvement Act. 17 MR. BIRMINGHAM: Let me ask the question a little bit 18 differently, Mr. Rosenkrans. I think you will certainly be 19 qualified to answer this: 20 The direct testimony that you provided related to 21 equivalency between the 1995 Water Quality Control Plan and 22 the flows provided under the San Joaquin River Agreement; is 23 that correct? 24 MR. ROSENKRANS: I am sorry, can you ask that again? 25 MR. BIRMINGHAM: The direct testimony that you provided 1756 01 related to the equivalency between the protection afforded 02 by the 1995 Water Quality Control Plan and the protections 03 afforded by the flows in the San Joaquin River provided by 04 the San Joaquin River Agreement? 05 You are nodding your head up and down, is that an 06 affirmative? 07 MR. NOMELLINI: You are nodding your head up and down. 08 C.O. CAFFREY: Mr. Nomellini, please, sir. That is 09 inappropriate, outbursts from the audience attacking the 10 questioner or the witness. The Board is not going to 11 tolerate that. 12 MR. NOMELLINI: I would put it in the form of an 13 objection, he was being argumentative with the witness. 14 MR. BIRMINGHAM: Mr. Chairman, the witness was nodding 15 his head up and down. I simply asked him, "Is that an 16 affirmative response?" That is not argumentative. It is 17 simply asking a question. 18 C.O. CAFFREY: The objection is overruled. Please 19 proceed. I am sorry I interrupted your answer. 20 Go ahead, Mr. Rosenkrans. 21 MR. ROSENKRANS: I didn't mean to be nodding my head. 22 I was trying to think how to phrase the answer. In 23 addressing the export side of the agreement, I never 24 intended that the Water Quality Control Plan standards for 25 exporting no more than 100 percent of San Joaquin River 1757 01 inflow was or was not the relevant export rate. I did not 02 address that in my written testimony. I tried to address 03 that in response to a question from the Board. 04 MR. BIRMINGHAM: I have no further questions. 05 Thank you very much. 06 C.O. CAFFREY: Thank you, Mr. Birmingham. Do the staff 07 wish to recross the witness? 08 MR. HOWARD: No. 09 C.O. CAFFREY: Anything from the Board Members? 10 Break time. Let's take our usual break and be back in 11 12 minutes. 12 Thank you. 13 (Break taken.) 14 C.O. CAFFREY: Let's get started again. 15 I notice that Ms. Zolezzi is in the audience. I have a 16 question for Ms. Zolezzi. 17 MR. JACKSON: She promises to tell the truth. 18 C.O. CAFFREY: It was represented yesterday, Ms. 19 Zolezzi, that you would not be presenting a case in chief in 20 this phase. Is that correct? 21 MS. ZOLEZZI: It would be II-A. 22 C.O. CAFFREY: Is Mr. Bold here? It was also presented 23 that he would not be -- that is what our staff understood. 24 He is not here, so we assume that he would not be presenting 25 a case in chief. 1758 01 We are at the point where we are going to have Mr. 02 Ploss appear for Mr. Herrick as a rebuttal witness. 03 MR. BRANDT: Mr. Ploss is appearing pursuant to a 04 request of Mr. Herrick where he identified the topics that 05 he needed to examine Mr. Ploss on. 06 As we continue to offer, we will do what we can when 07 someone tells us the information they need, we will find a 08 witness to provide information they request. 09 C.O. CAFFREY: We appreciate that, Mr. Brandt. Thank 10 you very much. 11 Good morning, Mr. Herrick. 12 Good morning, Mr. Ploss. 13 MR. HERRICK: Good morning, Mr. Chairman, Board 14 Members. I agree with what Mr. Brandt said. However, this 15 is rebuttal so if -- I believe all the topics are within the 16 topics I noted by them. But it also may spill over into 17 topics to rebut stuff or evidence that has been presented. 18 If that does happen and he doesn't feel that he is the right 19 person to answer it, that is fine. 20 C.O. CAFFREY: If there are objections, we will handle 21 them as we go. 22 MR. HERRICK: We appreciate your making yourself 23 available today. 24 ---oOo--- 25 // 1759 01 REBUTTAL TESTIMONY OF MR. PLOSS 02 BY SOUTH DELTA WATER AGENCY 03 BY MR. HERRICK 04 MR. HERRICK: Morning, Mr. Ploss, we appreciate you 05 making yourself available today. 06 I would like to clarify that you have not been asked to 07 make any equivalency evaluation of the San Joaquin River 08 Agreement with any other plan operations; is that correct? 09 MR. PLOSS: That is correct. 10 MR. HERRICK: At this point in time, although the 11 presentation of the San Joaquin River Agreement is being 12 taken out of order, so to speak, I would like to confirm 13 that the Bureau has signed the San Joaquin River Agreement 14 letter of intent, statement of support -- excuse me? 15 MR. PLOSS: The Bureau of Reclamation has signed a 16 statement of support. 17 MR. HERRICK: Do you know whether or not the Fish and 18 Wildlife Services has also signed it? I am not trying to 19 trick you. 20 MR. PLOSS: Yes, they have. 21 MR. HERRICK: Has the Bureau of Reclamation initiated 22 any consultation with the Fish and Wildlife Service 23 regarding the effects of San Joaquin River Agreement on the 24 biological opinions that may apply? 25 MR. PLOSS: No. 1760 01 MR. HERRICK: Mr. Ploss, are you familiar with Mr. 02 Steiner's testimony, generally or at all? 03 MR. PLOSS: Generally. I was here when he presented 04 it. 05 MR. HERRICK: Would you agree that the thrust of his 06 presentation was the modeling of the San Joaquin River 07 Agreement flows as compared to what he called a current 08 setting? 09 MR. PLOSS: Correct. 10 MR. HERRICK: Do you recall whether or not Mr. 11 Steiner's modeling included within that current setting 12 purchases of water by the Bureau for various purposes? 13 MR. PLOSS: I do not recall that the modeling included 14 water purchases. 15 MR. HERRICK: Does the Central Valley Project currently 16 operate under any program or statutes that directed it to 17 make purchases for various purposes? 18 MR. PLOSS: Yes. 19 MR. HERRICK: What would those programs or laws be, if 20 you know? 21 MR. PLOSS: Its authorization under the Central Valley 22 Project Improvement Act to acquire water for purposes of 23 that act. 24 MR. HERRICK: Mr. Ploss, as the Chief of Operations for 25 CVP, are you familiar with the -- 1761 01 MR. BIRMINGHAM: Excuse me. 02 C.O. CAFFREY: Mr. Birmingham. 03 MR. BIRMINGHAM: Mr. Ploss nodded his head up and down. 04 May the record reflect that was an affirmative response? 05 C.O. CAFFREY: Thank you, Mr. Birmingham. 06 MR. PLOSS: Yes, Chief of Operations. 07 C.O. CAFFREY: Mr. Ploss, you need to answer all 08 questions audibly. 09 MR. HERRICK: Are you familiar with the Anadromous Fish 10 Restoration Program of CVPIA? 11 MR. PLOSS: I am aware of it, but I don't know it in 12 detail. 13 MR. HERRICK: Earlier we introduced South Delta Water 14 Agency Number 37 a number given to it, which are pages out 15 of this document that I want to show you. 16 To your knowledge, is that the most recent draft of the 17 AFRP program? 18 MR. PLOSS: I do not know. 19 MR. HERRICK: We referenced -- I referenced certain 20 pages of this document that I just slowed you, and they are 21 in the record as evidence or they will, I guess, be accepted 22 or not accepted after these cases are closed. 23 Are you familiar with the current objectives for the 24 Stanislaus River under the AFRP working paper? 25 MR. PLOSS: No, I'm not. 1762 01 MR. HERRICK: Do you have any general knowledge of 02 those, I will call them, numbers regarding the Stanislaus 03 River? 04 MR. PLOSS: General knowledge of the fish releases 05 under CVPIA, yes. 06 MR. HERRICK: Do those objective fish releases coincide 07 with the 30-day pulse flow that is being discussed under the 08 context of the '95 Water Quality Control Plan? 09 MR. PLOSS: Yes. 10 MR. HERRICK: Do they extend for a longer period of 11 time? 12 MR. PLOSS: Under some year classifications I believe 13 they do extend for a longer period. 14 MR. HERRICK: Perhaps to jog your memory, I would like 15 to show you Page 90 out of South Delta Exhibit 37 and see if 16 that helps jog your memory as to those fish flows. I am not 17 asking you to say, Mr. Ploss, that you believe those are the 18 numbers. I'm seeing if that jogs your memory as to what the 19 numbers may be. 20 MR. PLOSS: These appear to be generally in the range 21 of the numbers for the flow objective, yes. 22 MR. HERRICK: Do you feel confident saying that under 23 at least some year types in the AFRP program it is 24 anticipated that there will be a 60-day pulse flow instead 25 of a 31-day pulse flow? 1763 01 MR. PLOSS: That's correct. 02 MR. HERRICK: Can you tell us whether or not export 03 pumping -- let me back up. In Phase I we talked a little 04 bit about ramping up of experts sometime after the pulse 05 flow. Do you recall that? 06 MR. PLOSS: Yes. 07 MR. HERRICK: Do you know whether or not the ramping up 08 would occur during a second 30 days of the pulse flow or 09 would that occur after the pulse flow is completely done? 10 MR. PLOSS: It is possible to occur during the later 11 portion of the pulse flow. 12 MR. HERRICK: Have you had any discussions with the 13 biologist panel regarding those operations, how they may 14 affect the VAMP program? 15 MR. PLOSS: No, I have not. 16 MR. HERRICK: Mr. Ploss, you are familiar with the 17 Interim Operations Program for New Melones, correct? 18 MR. PLOSS: Somewhat, yes. 19 MR. HERRICK: As we did in Phase I, your organization 20 has done some modeling to show the possible effects of that 21 operations plan, correct? 22 MR. PLOSS: You need to clarify what you mean by 23 "effects." 24 MR. HERRICK: Sure. I believe -- I don't remember the 25 document, but the Interim Operations Plan shows allocations 1764 01 for contractors, Fish and Wildlife and water quality under 02 various year types? 03 MR. PLOSS: That is correct. I believe at the time we 04 used the term "budgeting of water." 05 MR. HERRICK: I don't mean to supply words that you 06 don't agree with. 07 Does the Interim Operation Plan budgeting include flows 08 that will be needed to meet AFRP flows? 09 MR. PLOSS: It includes flows to meet the fishery 10 objectives that are in the Interim Operation Plan. 11 MR. HERRICK: Are those objectives -- you said 12 objective? 13 MR. PLOSS: Yes, the Interim Operation Plan. 14 MR. HERRICK: Are those objectives in the Interim 15 Operations Plan the same as the current objectives in the 16 AFRP plan? 17 MR. PLOSS: I do not know if they are the same. 18 MR. HERRICK: Mr. Steiner testified that, I believe, in 19 each year the agreement, this SJRA, calls for the purchase 20 15,000 acre-feet of water from Oakdale Irrigation District. 21 Do you recall that? 22 MR. PLOSS: Yes. 23 MR. HERRICK: I believe, just to refresh your memory, 24 his testimony said that that amount of water plus any of 25 their allocation of the agreement flows not used would be 1765 01 thrown back into the pot in New Melones; is that correct? 02 MR. BRANDT: Vague and ambiguous, "thrown back in the 03 pot." 04 MR. HERRICK: I believe those were the terms used. I 05 am not trying to confuse you. 06 Do you want to restate that? 07 C.O. CAFFREY: Do you feel competent to answer the 08 question? You under the terminology? 09 MR. PLOSS: Yes. 10 C.O. CAFFREY: Go ahead. 11 MR. PLOSS: The phrasing I believe in the San Joaquin 12 River Agreement is that that water would be available for 13 all authorized purposes of New Melones. 14 MR. HERRICK: Are you -- let me start over. 15 Let's just pick 15,000 acre-feet as an amount purchased 16 from Oakdale, ignoring any amount that is not used under the 17 flows. 18 Do you believe that that water would be used for 19 various purposes, or would it most likely end up being used 20 for AFRP flows? 21 MR. PLOSS: That is hard to predict, how that water 22 would be used under the San Joaquin River Agreement. 23 MR. HERRICK: Let's take a hypothetical of just any 24 particular year, and as part of the hypothetical, assume 25 that the amount of flows to maintain AFRP flows weren't 1766 01 available under normal Interim Operation Plan budgeting. Do 02 you anticipate that the purchase from OID would be used to 03 help meet those AFRP flows? 04 MR. BRANDT: Objection. Calls for speculation. 05 MR. O'LAUGHLIN: Objection. Vague and ambiguous as to 06 the AFRP flows. We have had testimony previously that there 07 are two AFRPs. There is a working paper and then there is a 08 final draft. So, I don't know which AFRP flows are referred 09 to. 10 C.O. STUBCHAER: Restate the question, please, Mr. 11 Herrick. 12 MR. HERRICK: Mr. Ploss, let's just assume that the 13 AFRP that we just talked about in our previous 10 or 15 14 questions is the one for the hypothetical here. 15 MR. PLOSS: Okay. 16 MR. HERRICK: Let's build a hypothetical again. Let's 17 assume there are certain AFRP flows, doesn't matter what 18 they are. Let's then assume that the budgeting under the 19 Interim Operation Plan does not supply sufficient flows to 20 meet those AFRP flows. 21 In that instance, would you anticipate that -- is it 22 possible that the 15,000 purchased from Oakdale would be 23 released for AFRP flows? 24 MR. BRANDT: Calls for speculation. 25 MR. HERRICK: I would just comment on that by saying 1767 01 that is basically one of the purposes of having experts 02 testify on the operation is to -- 03 C.O. CAFFREY: I think the witness can answer. Go 04 ahead. 05 MR. PLOSS: I would respond that in looking at future 06 operations for New Melones, assuming, as you have said, that 07 there is water being released for AFRP flows that may be 08 insufficient and the San Joaquin River Agreement is in 09 place, the Bureau would take into effect many factors along 10 with consultation with other interested parties under the 11 Stanislaus stakeholder group as well as the U.S. Fish and 12 Wildlife Service in making the determination, what the water 13 released for. 14 MR. HERRICK: I appreciate the response. I am not 15 trying to trick you. I just want to establish that -- would 16 it be fair to say that would be a judgment call depending on 17 the various factors? 18 MR. PLOSS: It would be a judgment call, yes, sir. 19 MR. HERRICK: Is one of the possible judgment calls 20 that it does get thrown back into the storage for interim 21 operation for calculations? 22 MR. PLOSS: Yes. 23 MR. HERRICK: If you put -- let's just hypothetically 24 say that the inflow storage number pursuant to the Interim 25 Operation Plan is 2,000,000 acre-feet at that moment in 1768 01 time. 02 If you throw 15,000 acre-feet of water back into that, 03 do you have any estimate as to how much of that could 04 possibly be allocated to water quality flow releases? 05 MR. PLOSS: No, I do not. 06 MR. HERRICK: Is there some sort of margin of error in 07 your calculations for the Interim Operation Plan of New 08 Melones? 09 MR. PLOSS: Certainly. In any hydrology there is a 10 margin of error. 11 MR. HERRICK: Can you give us any ballpark figure of 12 that amount? 13 MR. PLOSS: No, I can't. 14 MR. HERRICK: Is it correct to say, under the San 15 Joaquin River Agreement, the Bureau and DWR assume 16 responsibility for the 1995 Water Quality Control Plan? 17 MR. PLOSS: That's correct. 18 MR. HERRICK: We had testimony comparing the 1995 water 19 quality flows with the San Joaquin River Agreement flows. 20 Do you recall that? 21 MR. PLOSS: Yes. 22 MR. HERRICK: Do you anticipate meeting the 1995 Water 23 Quality Control Plan flows if the SJRA is adopted? Or do 24 you anticipate only meeting the flows up to the totals 25 provided in the San Joaquin River Agreement? 1769 01 MR. BRANDT: I think that calls for speculation. I am 02 going to object. I am not clear. It's also vague. 03 C.O. CAFFREY: It is a little vague. Do you feel -- 04 do you have a comfort level in answering that question, Mr. 05 Ploss? Do you want him to restate it? 06 MR. HERRICK: I can start over. 07 C.O. CAFFREY: Start over, Mr. Herrick. 08 MR. HERRICK: As I read the San Joaquin River 09 Agreement, the Bureau and DWR remain liable for the 1995 10 Water Quality Control Plan objectives. Is that correct? Is 11 that your understanding? 12 MR. PLOSS: I don't believe it states that we are 13 liable. It says that we will assume the responsibility. 14 MR. HERRICK: By assuming that responsibility, are you 15 -- is the agency going to try to meet those objectives? 16 MR. PLOSS: I am having trouble answering that because 17 I am relying on the State Water Resources Control Board to 18 issue an order, and we will attempt to comply with that 19 order. 20 MR. HERRICK: So you expect the order to lower your 21 obligation for flow objectives below the 1995 Water Quality 22 Control Plan objectives? 23 MR. PLOSS: We have signed the statement of support for 24 the San Joaquin River Agreement; I think that speaks for 25 itself. 1770 01 MR. HERRICK: Does the Bureau have any programs that 02 would anticipate purchases of water in order to provide 03 flows in excess of the San Joaquin River Agreement? 04 MR. PLOSS: The Department of Interior under the 05 Central Valley Project Improvement Act does have a water 06 acquisition program, yes. 07 MR. HERRICK: Does it anticipate purchasing those flows 08 to provide additional pulse flow water? 09 MR. PLOSS: You need to, I guess, be more specific on 10 pulse flow, when you say "pulse flow water." 11 MR. HERRICK: Does the Bureau anticipate purchases of 12 water such that that water would be released during April or 13 May of each year? 14 MR. BRANDT: I object. This is one of those ones 15 where, if you need a witness on this, because Mr. Ploss is 16 not really the expert on the water acquisition program, he 17 gets whatever water the acquisition program gets and deals 18 with it. If you need a witness on this one, we can try to 19 find someone to do that. I am not sure if he is qualified 20 to answer that question. 21 C.O. CAFFREY: I am sure Mr. Herrick appreciates that 22 offer, as does the Board. But I want to instruct the 23 witness that, if you don't know the answer, that is not a 24 sin. You just say, "I don't know." If it is beyond your 25 level of expertise or level of comfort, just say so. 1771 01 MR. HERRICK: I would like to add to that, Mr Chairman, 02 I am not asking Mr. Ploss to make any sort of specific 03 conclusions about any purchase programs. But as Chief of 04 Operations, his job is to anticipate and figure out how much 05 water would be available in future years. 06 I believe the question is clearly within his expertise. 07 MR. PLOSS: The San Joaquin River Agreement allows for 08 water acquisition from willing sellers. The Department of 09 Interior, through the Bureau of Reclamation and Fish and 10 Wildlife, have authority under CVPIA to acquire water for 11 purposes of that act. I cannot foretell what we will do in 12 the future. 13 MR. HERRICK: I would like to ask the same question 14 with regard to any additional releases for water quality. 15 MR. PLOSS: Okay. 16 MR. HERRICK: And I am asking that. 17 MR. PLOSS: If we were to purchase water for water 18 quality, is that what you are asking? 19 MR. HERRICK: Correct. 20 MR. PLOSS: I would reply with the same answer. 21 MR. HERRICK: Do you have an understanding as to 22 whether or not Mr. Steiner's modeling -- 23 C.O. CAFFREY: I am sorry, I just remarked we are 24 moving to shorthand style in both the questioning and 25 answers. 1772 01 Go ahead. 02 C.O. CAFFREY: But we appreciate it. Go ahead. 03 MR. HERRICK: Do you have an understanding to whether 04 or not Mr. Steiner's modeling included any potential 05 purchases under any other -- 06 MR. PLOSS: I am not aware of that. 07 MR. HERRICK: The San Joaquin River Agreement provides 08 certain conditions or relaxations of conditions. Does the 09 Bureau have any plans at this time for -- has the Bureau 10 identified sources of water it may purchase in order to make 11 up for any relaxation of a VAMP flow? 12 MR. PLOSS: No we have not. 13 MR. HERRICK: So, the Bureau has not identified any 14 sources of water that may be purchased to make up in a year 15 that the objective is relaxed? 16 MR. PLOSS: The San Joaquin River Agreement provides 17 for water purchases from willing sellers in those 18 conditions, but does not identify who those parties will 19 be. 20 MR. HERRICK: Mr. Ploss, the word "backstop" has been 21 used in the San Joaquin River Agreement discussions. I 22 understand that to mean that, if for some reason the 23 agreement is terminated or interrupted for some reason, that 24 the Bureau and DWR are offering to backstop the obligations. 25 Is that correct? 1773 01 MR. PLOSS: We are assuming to take on the 02 responsibility of complying with the 1995 Water Quality 03 Control Plan in that circumstance. 04 MR. HERRICK: When you say "comply with the Water 05 Quality Control Plan," you are talking about the 1995 Water 06 Quality Control Plan objectives? 07 MR. PLOSS: Yes. 08 MR. HERRICK: You are not talking about San Joaquin 09 River objectives? 10 MR. PLOSS: No. 1995 Water Quality Control Plan. 11 MR. HERRICK: Would you agree that your agency's 12 modeling of the operations of New Melones show that there is 13 insufficient water from New Melones to meet all of the 1995 14 Water Quality Control Plan objectives? 15 MR. PLOSS: Yes. As well as many other purposes of 16 water out off New Melones. 17 MR. HERRICK: Has your agency then done any calculation 18 or determination of how you might backstop the San Joaquin 19 River Agreement? 20 MR. PLOSS: No, we have not. 21 MR. HERRICK: The San Joaquin River Agreement allows 22 for the operations plan, I will say, to be disputed by any 23 party as it is being developed. Fair assumption? 24 MR. PLOSS: That's fair. 25 MR. HERRICK: In that event, the parties are supposed 1774 01 to attempt to -- let me read it on Page 9 of the agreement, 02 under Paragraph 6.6. 03 MR. BRANDT: I am going to place the document in front 04 of Mr. Ploss. 05 MR. HERRICK: Mr. Ploss, real quickly I will run 06 through this: 07 By February 15th of each year of this 08 agreement the USBR and CDWR shall develop in 09 cooperation with the SJRTC an operations plan 10 that will describe how the VAMP will be 11 implemented in that year. If the USBR, CDWR 12 and SJRTC do not complete an acceptable 13 operations plan by February 15th or if by 14 March 1st any party objects to the operations 15 plan, then the parties will be notified and 16 will meet to identify and resolve outstanding 17 issues related to that year's operations 18 plan. If the matter remains unresolved on 19 April 10th, the provisions of Paragraph 13-4 20 will be invoked. (Reading.) 21 Mr. Ploss, will you turn to 13-4 and tell us, 22 generally, what that provision provides. 23 MR. BRANDT: Objection. Are you calling for legal -- 24 is he calling for a legal conclusion or is he asking him to 25 read it? 1775 01 MR. HERRICK: I want him to look at it so I can ask him 02 a question. 03 C.O. CAFFREY: He is asking him to refer to it so he 04 can ask him another question. Go ahead. 05 MR. HERRICK: Have you had a chance to look at that? 06 MR. PLOSS: Uh-huh. 07 MR. HERRICK: My question, Mr. Ploss, is: If by April 08 10th no operations plan has been agreed to, do you know what 09 sort of flows the Bureau would provide for the San Joaquin 10 River from any source? 11 MR. PLOSS: Paragraph 13.4 is notice of termination or 12 likelihood of termination to the State Water Resources 13 Control Board. If 13.4 is invoked where we notify the 14 State Water Resources Control Board, I cannot foretell what 15 the State Water Resources Control Board response will be. 16 MR. HERRICK: My question is more, if the deadline is 17 April 10th, that is five days before the pulse flow, and 18 13-4 provides for 90 days of discussions, and again you may 19 not know, but do you have any idea what your operations 20 would be with regard to an April 15 pulse flow beginning? 21 MR. PLOSS: I would assume that in light of a 22 requirement for a pulse flow during that period, we would 23 fall back to the requirements of 1995 Water Quality Control 24 Plan, Central Valley Project Improvement Plan, as well as 25 the Biological Opinion for Delta smelt as our guidance on 1776 01 operations. 02 MR. HERRICK: I believe we said earlier if the Bureau 03 just used New Melones, it would not have sufficient water in 04 all years to meet those objectives; is that correct? 05 MR. PLOSS: I am not certain if that is accurate, with 06 regard only to the pulse flow period. 07 MR. HERRICK: So, it is possible you would meet the 08 pulse flow and not meet other objectives? 09 MR. PLOSS: That is possible. 10 MR. HERRICK: Is one of those objectives the Vernalis 11 water quality standard? 12 MR. PLOSS: That is true. 13 MR. HERRICK: I had the same question for Paragraph 14 6.7. Let's go over it. You probably answered it. It 15 appears that if a party objects to the export -- if the 16 operation plan is unacceptable, that the export limitations 17 do not apply during that year. Is that your reading of that 18 paragraph also? 19 MR. PLOSS: Yes. 20 MR. HERRICK: You may have just answered it, but what 21 export limitations would control, in your opinion, if indeed 22 the 6.7 was in effect? 23 MR. PLOSS: We would again fall back to the 1995 Water 24 Quality Control Plan, Central Valley Project Improvement 25 Plan and the Biological Opinions as a guidance for our 1777 01 operations. 02 MR. HERRICK: Mr. Ploss, those Biological Opinions, 03 correct me if I am wrong, the Delta Smelt Opinion what is 04 called a yellow light trigger? 05 MR. PLOSS: It was a yellow light in relationship to 06 incidental takes at the pumps. 07 MR. HERRICK: Does that -- does the program that is 08 initiated once the yellow light is triggered, does that 09 include a reduction of exports? 10 MR. PLOSS: Not necessarily. 11 MR. HERRICK: Is it one of the possibilities of that, a 12 reduction of exports? 13 MR. PLOSS: That is one possibility. 14 MR. HERRICK: Is it possible that reduction goes -- 15 actually goes to zero exports? 16 MR. PLOSS: I don't believe that would be a likelihood 17 because of the need to pump a minimum amount of water. 18 Is our time up? 19 MR. NOMELLINI: I didn't know that thing was on. I'm 20 really sorry about that. 21 C.O. CAFFREY: Somebody's time is up. Thank you, Mr. 22 Nomellini. 23 You're excused to answer your phone, if you wish. 24 MR. NOMELLINI: I turned it off. 25 C.O. CAFFREY: I would like to move to strike that 1778 01 ringing. 02 That ringing is struck, stricken, whatever. 03 Go ahead. 04 MR. HERRICK: Mr. Ploss, do you know if there is any 05 bottom threshold below which exports could not be reduced 06 under that Delta Smelt yellow light plan, as we are calling 07 it? 08 MR. PLOSS: The general guidance that we would use for, 09 call it absolute minimum export levels, would be providing 10 the water sufficient for the upper reach of the 11 Delta-Mendota Canal, that is between Tracy pumping plant and 12 O'Neal. And I believe there is a minimum level of pumping 13 by the State Water Project for the, I think it is, South 14 Coast or the South Delta Bay Aqueduct. 15 MR. HERRICK: Those are minimum needs, so to speak, 16 correct? 17 MR. PLOSS: Minimum needs, yes. 18 MR. HERRICK: Again, I am not trying to trick you. I 19 don't know the answer to this. That's different than a 20 minimum, a limitation placed on what the Biological Opinion 21 may be able to do; is that correct? 22 MR. PLOSS: Would you repeat that. 23 MR. HERRICK: Certainly. The Biological Opinion may 24 indeed result in a reduction of exports to zero; is that 25 correct? Or do you know? 1779 01 MR. PLOSS: I don't know if it would. 02 MR. HERRICK: Mr. Ploss, could you turn to 12.1, 03 please, in the agreement. 04 MR. PLOSS: Okay. 05 MR. HERRICK: In the middle of that paragraph, and you 06 can read the rest of it on the record if you want. I am 07 just trying to zero in on one part. In the very middle it 08 says: 09 Nor will they have an obligation under the 10 1995 Water Quality Control plan to mitigate 11 impacts on the water quality resulting solely 12 from any reduction in flows in the San 13 Joaquin River or its tributaries. 14 (Reading.) 15 Do you know to what "reduction in flows" is referring 16 to? And by clarification, I mean does that reduction in 17 flows solely resulting from the San Joaquin River Agreement 18 or is reduction in flows due to some other cause? 19 MR. BIRMINGHAM: Objection. Compound. 20 C.O. CAFFREY: Can you simplify the question or break 21 it up into more than one question, Mr. Herrick? 22 MR. HERRICK: Certainly, Mr. Chairman. 23 Mr. Ploss, do you know to what that quote, "reduction 24 in flows," refers? 25 MR. PLOSS: No, I do not. 1780 01 MR. HERRICK: I believe that is all. 02 Thank you very much, Mr. Chairman. 03 Mr. Ploss, appreciate your coming in. 04 C.O. CAFFREY: Thank you very much, Mr. Herrick. 05 Are there any parties that wish to cross-examine this 06 rebuttal witness? 07 We have Mr. Birmingham, Mrs. Zolezzi, Mr. Gallery, Mr. 08 Jackson, Ms. Cahill, Mr. Nomellini. 09 Anybody else? 10 Let me read the names: Birmingham, Zolezzi, Gallery, 11 Jackson, Cahill, Nomellini. 12 Did we miss anybody? 13 All right. Mr. Birmingham. 14 ---oOo--- 15 CROSS-EXAMINATION OF REBUTTAL TESTIMONY 16 BY WESTLANDS WATER DISTRICT 17 BY MR. BIRMINGHAM 18 MR. BIRMINGHAM: Good morning, Mr. Ploss. How are you? 19 MR. PLOSS: Fine. Good morning. 20 MR. BIRMINGHAM: First a couple of procedural issues. 21 I would like to show to you a document that has been marked 22 for identification as San Joaquin River Group Authority 23 Exhibit 2 and ask you if you are familiar with this 24 document. 25 MR. PLOSS: Generally, yes. 1781 01 MR. BIRMINGHAM: San Joaquin River Group Authority 02 Exhibit 2 is a statement of support for the San Joaquin 03 River agreement; is that correct? 04 MR. PLOSS: That is what is on the front of it, yes? 05 MR. BIRMINGHAM: I would ask you to review the document 06 and tell me if that is a true and accurate copy of the San 07 Joaquin River Agreement? And when I say "that," I mean San 08 Joaquin River Group Authority Exhibit 2. 09 MR. PLOSS: I believe it to be, yes. 10 MR. BIRMINGHAM: Thank you. 11 And attached to San Joaquin River Group Authority 12 Exhibit 2 is another document that is identified as the San 13 Joaquin River Agreement; is that correct? 14 MR. PLOSS: That's correct. 15 MR. BIRMINGHAM: Is the document that is attached to 16 San Joaquin River Group Authority Exhibit 2 a true and 17 correct copy of the San Joaquin River Agreement? 18 MR. PLOSS: I believe it to be, yes. 19 MR. BIRMINGHAM: Were you involved in the negotiation 20 of the San Joaquin River Agreement? 21 MR. PLOSS: To some extent, yes. 22 MR. BIRMINGHAM: Mr. Herrick -- 23 MR. SUYEYASU: Mr. Chairman. 24 C.O. CAFFREY: Mr. Suyeyasu. 25 MR. SUYEYASU: I would like a couple of clarifications 1782 01 here. It was my understanding that they were going to be 02 offering another witness later in the day to present this 03 document, to vouch for its authenticity and who we could 04 cross-examine with respect to contents of the document. It 05 seems as if they are kind of changing what is going on here. 06 I know all the parties to the San Joaquin River Agreement 07 are not always all doing the same thing. I would just like 08 clarification if that is what this witness is being offered 09 for now, and that is something we can cross-examine him on. 10 C.O. CAFFREY: Mr. Birmingham, go ahead. 11 MR. BIRMINGHAM: Yes, Mr. Caffrey. 12 Mr. Herrick asked this witness a number of questions 13 about the document. I was tempted to object to the 14 questions on the ground that he failed to lay the 15 appropriate foundation for examining this witness about the 16 document. He did not ask him if the document were a true 17 and correct copy, didn't ask him if he were familiar with 18 document. 19 Those are generally questions that are asked of a 20 witness before the witness is examined about the document. 21 Rather than objecting and taking up more of the Board's 22 time, I thought that I would merely just ask those questions 23 of this witness myself. 24 C.O. CAFFREY: Are you planning on offering the 25 agreement as a rebuttal exhibit? 1783 01 MR. BIRMINGHAM: No. I was merely asking Mr. Ploss 02 those questions. I was also going to go on and ask him if 03 Westlands and the authority, as well as DWR, signed the 04 agreement. Again, only to save time later. Those are the 05 only facts which I am interested in establishing about this 06 document. 07 C.O. CAFFREY: Thank you. Just a moment. 08 Go right ahead. Thank you. 09 MR. BIRMINGHAM: I would like to add, if I may, it is 10 my hope that the San Joaquin River Authority will present a 11 witness who can explain this document. There has been a 12 awful lot said about this document that I think can be 13 easily rebutted by a simple explanation of the agreement. 14 C.O. CAFFREY: Thank you, Mr. Birmingham. 15 I would add that I think it is the hope of this Board 16 that that also occurs. 17 MR. BIRMINGHAM: Mr. Ploss, I am showing to you the 18 document that you have now identified as a true and correct 19 copy of the statement of support for San Joaquin River 20 Agreement, which has been marked for identification as San 21 Joaquin River Group Authority Exhibit 2. I am turning to 22 the third page of that document. There is a signature space 23 on Page 3 of that document for the California Department of 24 Water Resources; is that correct? 25 MR. PLOSS: That is correct. 1784 01 MR. BIRMINGHAM: On the document that has been marked 02 for identification as San Joaquin River Group Authority 03 Exhibit 2, there is no signature in the place where the 04 California Department of Water Resources is; is that 05 correct? 06 MR. PLOSS: That's correct. 07 MR. BIRMINGHAM: Do you know if the California 08 Department of Water Resources has, subsequent to the 09 submission of this document to the Board, signed the 10 statement of support for the San Joaquin River Agreement? 11 MR. PLOSS: It is my understanding that they feel that 12 they are prepared to sign? I cannot say for certain if they 13 have signed. 14 MR. BIRMINGHAM: Are you aware -- let me restate the 15 question. 16 Do you know if Westlands Water District has signed the 17 statement of support for the San Joaquin River Agreement? 18 MR. PLOSS: I believe that to be the case. I cannot 19 say for certain. 20 MR. BIRMINGHAM: The San Luis and Delta-Mendota Water 21 Authority, do you know if it has signed the statement of 22 support for the San Joaquin River Agreement? 23 MR. PLOSS: I believe that is the case, but I cannot 24 say for certain. 25 MR. BIRMINGHAM: When you say you believe that is the 1785 01 case, on what do you base your belief that the agencies that 02 I just identified have signed the statement of support for 03 the San Joaquin River Agreement? 04 MR. PLOSS: In the case of the Department of Water 05 Resources there has been an exchange of correspondence 06 between the Department of Interior and the Department of 07 Water Resources on implementation of Delta measures, what we 08 call Delta measures, CVPIA 3406 (B) (2), and understand how 09 we would develop an operating plan for implementation of 10 those measures. Based on that exchange, correspondence, it 11 is my understanding that the Department feels that it is now 12 appropriate for them to sign the San Joaquin River 13 Agreement. 14 MR. BIRMINGHAM: With respect to Westlands and San Luis 15 Delta-Mendota Water Authority, what is the basis of your 16 understanding that those two agencies have signed the 17 statement of support for the San Joaquin River Agreement? 18 MR. PLOSS: It is my understanding there has been 19 continued discussions between the San Joaquin River Group 20 Authority and the Delta-Mendota Canal Authority and 21 Westlands, which has subsequently cleared the way for those 22 agencies to sign. 23 MR. BIRMNGHAM: Mr. Ploss, you were asked a series of 24 questions by Mr. Herrick concerning the operations of New 25 Melones Reservoir to meet the water quality standards 1786 01 contained in the 1995 Water Quality Control Plan. 02 Do you recall those questions? 03 MR. PLOSS: Yes. 04 MR. BIRMINGHAM: During his examination of you he 05 elicited a response to the effect that in some water year 06 types there may not be enough water in New Melones Reservoir 07 in order to meet all of the standards contained in the 1995 08 Water Quality Control Plan; is that correct? 09 MR. PLOSS: That's correct. 10 MR. BIRMINGHAM: He also elicited from you a response 11 that under the San Joaquin River Agreement, the Department 12 of Water Resources and the United States Bureau of 13 Reclamation would assume responsibility for meeting the 14 water quality standards in the Bay-Delta; is that correct? 15 MR. PLOSS: That is correct. 16 MR. BIRMINGHAM: Mr. Ploss, isn't it correct, under the 17 San Joaquin River Agreement the Bureau and the Department of 18 Water Resources have agreed to backstop the responsibility 19 of the parties to the agreement on meeting the San Joaquin 20 River portion of the 1995 Water Quality Control Plan? 21 MR. BRANDT: Can I object on vague on the word 22 "backstop." I have been hearing this dialogue, and 23 different people are using it different ways. It might be 24 helpful -- 25 MR. BIRMINGHAM: I will ask a series of questions 1787 01 because I think Mr. Brandt is absolutely correct, that this 02 is an important issue and it needs to be fully explained to 03 the Board. 04 C.O. CAFFREY: Thank you, Mr. Birmingham. 05 MR. BIRMINGHAM: Mr. Ploss, the San Joaquin River 06 Agreement is an agreement between a variety of public 07 agencies, potentially some environmental groups, concerning 08 the amount of water that would be released by the members of 09 the San Joaquin River Group Authority as to meet their 10 obligation under the 1995 Water Quality Control Plan; is 11 that correct? 12 MR. PLOSS: That's generally correct, yes. 13 MR. BIRMINGHAM: There are many water diverters or 14 there are many entities on the San Joaquin River that, in 15 addition to the members of the authority, which divert water 16 from the San Joaquin River; is that correct? 17 MR. PLOSS: That's correct. 18 MR. BIRMINGHAM: Now, the responsibility that the 19 Bureau and the Department of Water Resources undertook as 20 part of the San Joaquin River Agreement was to accept 21 whatever responsibility would be imposed by the Water Board 22 on the parties to this agreement in meeting the 1995 Water 23 Quality Control Plan; is that correct? 24 MR. PLOSS: Yes. I believe so. 25 MR. BIRMINGHAM: To the extent there are other water 1788 01 users who are not a party to this agreement on the San 02 Joaquin River -- let me restate the question. 03 Mr. Ploss, are you familiar with Enclosure 2A to the 04 revised notice of hearing dated May 6th, 1998? 05 MR. PLOSS: Yes, I am. 06 MR. BIRMINGHAM: Is it correct, Mr. Ploss, that there 07 are water users who appropriate water from the San Joaquin 08 River or tributaries to the San Joaquin River listed on 09 Enclosure 2A who are not parties on the San Joaquin River 10 Agreement? 11 MR. PLOSS: That is correct. 12 MR. BIRMINGHAM: Mr. Herrick asked you a series of 13 questions about limitations imposed on exports by the Delta 14 Smelt Biological Opinion. 15 Do you recall those questions? 16 MR. PLOSS: Yes. 17 MR. BIRMINGHAM: Are you familiar with the limitations 18 imposed on exports under the 1995 Water Quality Control Plan? 19 MR. PLOSS: Yes. 20 MR. BIRMINGHAM: And you're familiar with limitations 21 on exports imposed during the pulse flow period as that is 22 described by the San Joaquin River Agreement? 23 MR. PLOSS: Yes. 24 MR. BIRMINGHAM: The limitations on exports that are 25 contained in the San Joaquin River Agreement, are those 1789 01 limitations more restrictive than the limitations imposed by 02 the 1995 Water Quality Control Plan? 03 MR. PLOSS: Yes, they are. 04 MR. BIRMINGHAM: Are those limitations on exports 05 imposed by the San Joaquin River Agreement more restrictive 06 than the limitations imposed on exports by the Delta Smelt 07 Biological Opinion? 08 MR. PLOSS: I have not made that comparison, so I am 09 unable to respond to that. 10 MR. BIRMINGHAM: Thank you very much. I have no 11 further questions. 12 C.O. CAFFREY: Thank you, Mr. Birmingham. 13 Ms. Zolezzi. 14 ---oOo--- 15 CROSS-EXAMINATION OF REBUTTAL TESTIMONY 16 BY STOCKTON EAST WATER DISTRICT 17 BY MS. ZOLEZZI 18 MS. ZOLEZZI: Thank you, Jeanne Zolezzi representing 19 the Stockton East Water District. 20 Mr. Ploss, I believe I only have one question for you. 21 Mr. Herrick, and also Mr. Birmingham, talked about the issue 22 of backstopping the obligations of the parties to the San 23 Joaquin River Agreement. And I think if Mr. Brandt is 24 comfortable with it, Mr. Birmingham explained that phrase a 25 little bit so that we all understand what backstop means; 1790 01 and that is that the United States and DWR would assume the 02 obligations of the parties to the San Joaquin Agreement 03 should those portions of the agreement be triggered that the 04 parties do not supply the water. 05 Is that what your understanding is of backstop? 06 MR. PLOSS: I believe in general terms, yes. We assume 07 that responsibility to meet the 1995 Water Quality Control 08 Plan in the absence of the agreement. 09 MS. ZOLEZZI: Under those circumstances, if the United 10 States was called upon to backstop the obligations of the 11 parties, would the United States continue to operate New 12 Melones Reservoir in accordance with the interim plan? 13 MR. PLOSS: Possibly not. 14 MS. ZOLEZZI: Under what circumstances would it not? 15 MR. PLOSS: We would have to determine at that time 16 what the requirements are for the 1995 Water Quality Control 17 Plan. Certainly, hydrologic circumstances of a given year, 18 the availability of water, the sources, what is a practical 19 operation for the Central Valley project, and that may cause 20 us to change the operations of New Melones Reservoir. 21 MS. ZOLEZZI: By change the operation, could that mean 22 that additional water would be allocated to meeting the 1995 23 Water Quality Control Plan and less water to the other 24 parties and requirements allocated water by the interim plan? 25 MR. PLOSS: That is a possibility. 1791 01 MS. ZOLEZZI: The agreement by the United States to 02 backstop the operations could result in other parties and 03 other obligations of New Melones Reservoir receiving less 04 water. 05 MR. PLOSS: That is a possibility, yes. 06 MS. ZOLEZZI: Thank you. 07 C.O. CAFFREY: Thank you, Ms. Zolezzi. 08 Mr. Gallery. 09 ---oOo--- 10 CROSS-EXAMINATION OF REBUTTAL TESTIMONY 11 BY TUOLUMNE UTILITIES DISTRICT 12 BY MR. GALLERY 13 MR. GALLERY: Mr. Ploss, Dan Gallery representing 14 Tuolumne Utilities District. I want to ask you a few 15 questions about the Interim Operation Plan that you now have 16 in effect for New Melones. 17 Let me ask you first, Mr. Ploss, you're the chief guy 18 for the whole Central Valley Project operations, correct? 19 MR. PLOSS: That may give me more credit than I 20 deserve. I'm the head of the operations for the Central 21 Valley Project. 22 MR. GALLERY: Is there someone in your shop, under your 23 authority, that would be in charge of the operation of the 24 New Melones project? 25 MR. PLOSS: Yes, that is correct. 1792 01 MR. GALLERY: Who would that be? 02 MR. PLOSS: We have it assigned to one of our staff 03 hydrologists by the name of David Reed. 04 MR. GALLERY: Then going to the Interim Operations Plan 05 that you now have in effect for New Melones, are you 06 familiar with that plan? 07 MR. PLOSS: Yes. 08 MR. GALLERY: The fact that it -- as I understand it, 09 it provides if there is up to 2,000,000 acre-feet available 10 in a given year, taking both what is in storage and 11 anticipated inflow, up to 2,000,000, you'd provide for 12 fishery first between 98,000 and 125,000 acre-feet; that is 13 your first take off that supply. And after that you provide 14 from 70 to 80,000 acre-feet for Vernalis water quality and 15 nothing for anybody else because there is no other water. 16 Are those allocations in that type year -- 17 C.O. CAFFREY: Was that a question, Mr. Gallery? 18 MR. GALLERY: I am sorry. Do you understand that to be 19 the way that it operates in that kind of year -- 20 MR. PLOSS: I would need to see what you are 21 referencing. 22 MR. GALLERY: Actually, I was looking at the Interim 23 Operations Plan that is in effect for New Melones. Would 24 you like to look at a copy? 25 MR. PLOSS: Yes. I don't have it in front of me. 1793 01 MR. GALLERY: This says, that if a given year you only 02 have 2,000,000 acre-feet to work with, then you only have 03 between 90,000 and 120,000 for fish and from 70 to 80,000 04 for water quality and nothing for anybody else; is that 05 correct? 06 MR. BRANDT: The document speaks for itself. 07 MR. PLOSS: That is what is stated on the document. 08 MR. GALLERY: Those allocations, do you understand that 09 those allocations -- 10 C.O. CAFFREY: Was that actually an objection? 11 MR. BRANDT: That was. 12 C.O. CAFFREY: Let me respond to it, that we've had 13 numerous occasions throughout this proceeding where people 14 have been reading passages from various documents to the 15 witnesses. So, I can't fault you for that, Mr. Gallery, 16 although I can ask everybody that that is not always 17 necessary. Sometimes you can just refer the witness to a 18 particular paragraph, "Third paragraph down, take a look at 19 it. Is it true?" Et cetera. Kind of speed things along. 20 Thank you, sir. 21 MR. GALLERY: Do you understand in that type year where 22 you only allocate that much water for fish and that much 23 water to water quality, is that done pursuant to the 24 Bureau's permits for New Melones? Is that how you 25 understand that, Mr. Ploss? 1794 01 MR. PLOSS: The operation of New Melones is under our 02 permits. The particular instance that you refer to is the 03 water allocation or budgeting that we would carry out in 04 that type of a year, which in this case would be a dry -- 05 could be characterized as a dry year. 06 MR. GALLERY: Let me ask you about the budget. You 07 mentioned in your testimony when you were asked about an 08 operation study, you seemed to prefer to call it a budget. 09 Do I have that -- is my recollection correct? 10 MR. PLOSS: Yes. 11 MR. GALLERY: Is there a document that evidences what 12 your budget allocations are under the Interim Operation Plan 13 which defines the priorities, what water comes first and 14 under what obligation that water is released? 15 MR. PLOSS: That is described in the Interim Operation 16 Plan itself. 17 MR. GALLERY: Well, then, I would like to direct your 18 attention to the year in which 2 and a half million 19 acre-feet to 3,000,000 acre-feet are available in your New 20 Melones project, and then you provide -- in that type year 21 you provide 345,000 to 467,000 for fishery. 22 The question is: Under what obligation is that water 23 provided? Is that explained in the Interim Operation Plan? 24 MR. BRANDT: Objection. Compound. And which water are 25 we talking about? Objection. Vague, "that water." 1795 01 C.O. CAFFREY: Do you understand the question, Mr. 02 Ploss? 03 MR. PLOSS: Maybe you could repeat it or -- 04 C.O. CAFFREY: Try again, Mr. Gallery. 05 MR. PLOSS: Be more specific. 06 MR. GALLERY: On the third row of the Interim Operation 07 Plan it provides that if between 2 and a half million and 08 3,000,000 acre-feet are available in that year from storage 09 plus anticipated inflow, that your -- then, the first 10 allocation water will be from 345,000 to 467,000 acre-feet 11 for fishery releases. 12 MR. BIRMINGHAM: Mr. Caffrey, I am going to object to 13 the question and, in fact, the series of questions on the 14 ground that it goes beyond the scope of the direct 15 testimony. I understand that, generally, cross-examination 16 can go beyond the scope of direct. That is when the witness 17 is testifying in a case in chief. 18 In this situation Mr. Ploss was called by Mr. Herrick 19 as a rebuttal witness. He asked him questions about the 20 Interim Operations Plan, but related to operations to 21 release water below New Melones. Mr. Gallery's questions go 22 to the availability of water for use above New Melones, and 23 he is going beyond the scope of the direct examination for 24 purposes of rebuttal. 25 C.O. CAFFREY: Hang on just a moment. 1796 01 Off the record. 02 (Discussion held off record.) 03 C.O. CAFFREY: Yes, Mr. Gallery, go ahead. 04 MR. GALLERY: Mr. Chairman, the San Joaquin River 05 Agreement provides that, in order to carry it out, the 06 Bureau will follow the Interim Operation Plan. The Interim 07 Operation Plan is a vital -- it is a pillar, probably the 08 main pillar of the San Joaquin River Agreement. 09 And we have had testimony in different aspects of it. 10 But what I am trying to develop, I am trying to get some 11 information on how on the Interim Operation Plan itself will 12 work, this main pillar of the San Joaquin River Agreement. 13 So that it seems to me that by any measure that what I 14 am trying to inquire about is appropriate and relevant and 15 can be within the scope of the examination. 16 C.O. CAFFREY: Wait a minute. 17 Thank you, Mr. Gallery. 18 Mr. O'Laughlin and then Mr. Birmingham. 19 MR. O'LAUGHLIN: I don't want to get into the objection 20 about what is going on here about rebuttal and the scope and 21 extent to the rebuttal. But I do need to address Mr. 22 Gallery's comment that he just made. 23 The Interim Operation Plan is not an integral part of 24 the San Joaquin River Agreement. The Interim Operation Plan 25 assumed for modeling purposes on arriving at what amount of 1797 01 water would be made available under existing flow and then 02 would be made available to get part of the flows. As set 03 forth in the agreement, if anybody would read it, it clearly 04 states that the Interim Operation Plan can change during the 05 San Joaquin River Agreement. So if the Bureau decides to 06 operate in a different fashion during the term of the 07 agreement, they are free to do so under the Stanislaus 08 stakeholders' process. We already have had extensive 09 discussions about that under Phase I. 10 So, all I am saying here is that the Interim Operation 11 Plan is not the plan for New Melones' operation. It is 12 assumed for modeling purposes and it is assumed for arriving 13 at what amount of water, supplement water, will be made 14 available under the agreement. 15 C.O. CAFFREY: Thank you, Mr. O'Laughlin. 16 Mr. Birmingham. 17 MR. BIRMINGHAM: I certainly agree with Mr. Gallery 18 that ultimately the questions that he is asking are 19 relevant for purposes of, perhaps, other phases, and maybe 20 Phase II-A. And that it will be appropriate to have a 21 witness to address the questions that he is asking. 22 My objection is that this is a witness who we are 23 taking out of turn in a rebuttal case. Historically, the 24 scope of cross-examination of a rebuttal witness has been 25 limited to the direct testimony. And I would -- but I would 1798 01 support Mr. Gallery that the questions that he is asking 02 would be appropriate of another witness in another phase. 03 Maybe I am being just too hypertechnical, Mr. Caffrey. 04 C.O. CAFFREY: Never, never. Nor we. 05 MR. BRANDT: Mr. Chairman. 06 C.O. CAFFREY: Just a moment. I am going to hear -- 07 Thank you, Mr. Birmingham. Let's hear from Mr. Brandt, 08 and then I am going to consult with the Cohearing Officer 09 for another moment. 10 MR. BRANDT: I have a proposal that may work out to do 11 what we need to do here. We are happy to explain the 12 interim plan. Maybe it would be better and more effective 13 use of time if we could work with Gallery between now and 14 II-A to get him up to speed and explain to him, and answer 15 his questions. So, then when he comes back and Mr. Ploss 16 will be here, and he asks those questions, they may be more 17 pointed and right to the point to get what he needs to get 18 out on the hearing record. 19 MR. GALLERY: Excuse me, Mr. Chairman. 20 C.O. CAFFREY: I am going to consult here -- go ahead. 21 MR. GALLERY: It would be perfectly satisfactory to me 22 if I could come out and sit down and develop this 23 information at the office, and I wouldn't need to take any 24 more time here. 25 C.O. CAFFREY: Is that agreeable to everybody? 1799 01 MR. BRANDT: That is fine. 02 C.O. CAFFREY: All right, then. We will do it that 03 way. 04 MR. BIRMINGHAM: I will withdraw my objection. 05 C.O. CAFFREY: And Mr. Birmingham and I wouldn't have 06 to be so technical. 07 Thank you, sir. Thank you for your clarification, Mr. 08 O'Laughlin. 09 And thank you, Mr. Brandt. 10 And thank you, Mr. Gallery. 11 C.O. CAFFREY: Good morning, Mr. Jackson. 12 MR. JACKSON: Good morning, sir. 13 ---oOo--- 14 CROSS-EXAMINATION OF REBUTTAL TESTIMONY 15 BY REGIONAL COUNCIL OF RURAL COUNTIES 16 BY MR. JACKSON 17 MR. JACKSON: Mr. Ploss, you indicated on 18 cross-examination, I guess, that you are familiar with the 19 San Joaquin River Agreement itself? 20 MR. PLOSS: Yes. 21 MR. JACKSON: Did you have representation during the 22 negotiation of the agreement? 23 MR. BRANDT: Objection. Vague as to representation. 24 MR. JACKSON: Were there people from the Bureau 25 involved in the negotiation of the agreement? 1800 01 MR. PLOSS: Yes. 02 MR. JACKSON: Who were they, sir? 03 MR. PLOSS: Mr. Roger Patterson, our Regional 04 Director. Mr. Brent Walthall, Brent who is a special 05 assistant to the regional director. Mr. Alf Brandt who is 06 from Regional Solicitor's office and myself. Mr. John Burke 07 at times. 08 MR. JACKSON: To your knowledge, were there other 09 members of the Department of Interior that took part in the 10 negotiations of this agreement? 11 MR. PLOSS: Yes. 12 MR. JACKSON: If you can, estimate for me the number of 13 meetings that Bureau representatives attended. 14 MR. PLOSS: There were meetings throughout 1997. It is 15 hard for me to add up the number of meetings we had. I 16 would say that there were meetings at least monthly. 17 MR. JACKSON: Where were these meetings held? 18 MR. PLOSS: Various locations. Most of the meetings 19 were held in the offices of the Metropolitan Water District 20 here in Sacramento. 21 MR. JACKSON: Were those meeting open to the public? 22 MR. PLOSS: I don't know how they were announced. I 23 received notification of the meetings, and I attended. 24 MR. JACKSON: Were there other parties present who did 25 not ultimately sign the agreement? 1801 01 MR. PLOSS: I believe there was, yes. 02 MR. JACKSON: Was there a Federal Advisory Committee 03 Act charter given for these meetings? 04 MR. BRANDT: Objection. Calls for legal conclusion. 05 Does not lay a foundation that it was applied for that. 06 MR. JACKSON: I am just asking whether or not in the 07 same way that CalFed was chartered. 08 C.O. CAFFREY: I assume that you are just asking if he 09 knows if that existed? 10 MR. JACKSON: Whether or not there is a charter. 11 C.O. CAFFREY: Whether or not you know. 12 MR. PLOSS: I don't know if it exists or it was 13 required to hold a meeting. 14 MR. JACKSON: Thank you. 15 Calling your attention to Section 12 on Page 15 of the 16 agreement -- 17 MR. BRANDT: As a courtesy, I will put it in front of 18 the witness. 19 MR. JACKSON: Thank you. 20 MR. BRANDT: Page 15? 21 MR. JACKSON: Page 15, Section 12, actually 12.1, Flow 22 Requirements. 23 MR. PLOSS: All right. 24 MR. JACKSON: I believe you indicated that you did not 25 know what flows were being referred to in Item Number 3 1802 01 after the comma: 02 Nor will they have an obligation under the 03 1995 Water Quality Control Plan to mitigate 04 the impacts on water quality resulting solely 05 from the reduction of flows in the San 06 Joaquin River or its tributaries. (Reading.) 07 Does this relieve the parties in the Bureau's opinion 08 from any responsibility to meet X2 above the agreement? 09 MR. BIRMINGHAM: I am going to object to the question 10 on grounds it is vague. I have no clue what Mr. Jackson is 11 referring to "like this." First he referred to Page 15, and 12 he referred to Page 3. Maybe he can clarify what he is 13 referring to. 14 C.O. CAFFREY: Could you clarify, Mr. Jackson. 15 MR. JACKSON: Yes. 16 In 12.1 it says: 17 That other than the flow objectives 18 established for the VAMP, a group of people, 19 and lists them, shall not have any other 20 requirement for flow at Vernalis or for the 21 San Joaquin River portion of the 1995 Water 22 Quality Control Plan. (Reading.) 23 My question is: Does that mean they don't have any 24 requirement for X2 which is a part of the 1995 Water Quality 25 Control Plan? 1803 01 MR. PLOSS: I would have to say I have not read that 02 section in great detail and it would be difficult for me to 03 interpret it. 04 MR. JACKSON: Is the Bureau backstopping the X2 05 contribution of the San Joaquin River? 06 MR. BRANDT: Objection. Vague as to "backstopping." 07 C.O. CAFFREY: Do you understand the question? Do you 08 know what he means? 09 MR. PLOSS: I believe the document states that the 10 Bureau and the Department of Water Resources will assume the 11 responsibilities for the 1995 Water Quality Control Plan, 12 and that does include X2 requirements. 13 MR. JACKSON: Thank you. 14 Calling your attention now to Section 15.3 on Page 18 15 of the agreement, are you familiar with that section, sir? 16 MR. PLOSS: Generally, yes. 17 MR. JACKSON: What is your interpretation of what that 18 section says? 19 MR. O'LAUGHLIN: Objection. I have several bases for 20 objecting. Number one, this is a settlement document. 21 Under your rules and regulations, as well as the Evidence 22 Code, there is no need to go beyond the scope of the 23 document to look at what was done previous to it. 24 Secondly, there is the best evidence rule here that the 25 document speaks for itself. 1804 01 As to the intent of the Bureau in entering the 02 agreement, it is irrelevant as to the intent of what the 03 document does or does not say. 04 So, for those two reasons, as well as this calls for an 05 explanation of parol evidence rules to bring extrinsic 06 evidence to try to go outside the scope of the document. 07 So, for all three reasons, this line of questioning should 08 not be allowed. 09 MR. JACKSON: Mr. Caffrey, if I might be heard on 10 that. 11 C.O. CAFFREY: Go ahead, Mr. Jackson. 12 MR. JACKSON: Section 15.3 indicates that nothing in 13 the agreement shall constitute the acknowledgment of a party 14 of any jurisdiction of the State Water Resources Control 15 Board over the party outside the terms of this 16 agreement. And yet I wanted to understand how the Bureau 17 viewed that in light of Section 7, which conditions the 18 whole agreement on the Board taking jurisdiction and 19 approving it. 20 C.O. CAFFREY: I am sorry, Mr. O'Laughlin. 21 MR. O'LAUGHLIN: Go right ahead. 22 C.O. CAFFREY: I am going to give you another chance. 23 I was about to rule. 24 You may go ahead and answer the question to the best of 25 your ability. But go to the Board, as I said many, many 1805 01 times to give the weight of evidence. 02 If you don't know the answer, you don't have to answer. 03 If you have an interpretation and you are willing to offer 04 it, go ahead. 05 MR. O'LAUGHLIN: Mr. Chairman, can I make one point on 06 this? And this is going to be an ongoing discussion, I 07 think, here today, and we will talk about it a little later. 08 There is a real danger involved here in having Mr. Ploss, 09 who represents the United States Bureau of Reclamation, talk 10 to the intent of the parties or the interpretation of the 11 document. The reason why that is, is there is other 12 parties, in fact, over 50 parties have signed that document. 13 Now, the problem is if we allow Mr. Ploss to testify as 14 to his interpretation of the document and what it means, and 15 later on we have a problem with the agreement, someone could 16 come back and say, "Well, the intent of the parties was 17 this." Well, that is not true. The intent of the parties, 18 and we go through this all the time in civil actions, is set 19 forth best by a right. That is why, under the Evidence 20 Code, the best evidence rule is the document, the written 21 document, speaks for itself. 22 So I don't want to go -- the problem here is when we 23 start having other parties testify as to their 24 interpretation and intent in entering the agreement. It 25 sounds like that is the reason for the document. Well, that 1806 01 isn't the reason for the document. There is 50 other 02 reasons, probably, for why that document is in front of you, 03 and what the interpretation and intent of it is. 04 C.O. CAFFREY: Go ahead. I didn't mean to interrupt. 05 MR. O'LAUGHLIN: I just have to cite to -- there is 06 Evidence Code Section 1401, and under your rules and 07 regulations there is Government Code Section 11415.60, and 08 it says: 09 No evidence or conduct of statements made in 10 settlement are admissible to prove anything 11 else. (Reading.) 12 And, finally, under the Best Evidence Rule, I am going 13 to cite in just a second. The Best Evidence Rule is set 14 forth in Evidence Code Section 1500. It says: 15 Except as otherwise provided by statute, no 16 evidence other than the original writing is 17 admissible to prove the content of a 18 writing. (Reading.) 19 What this is trying to say is that the writing speaks 20 for itself, that is the best evidence of what the parties 21 intended to do. What you are following up on is you have 22 the parol evidence rule which says that you can't allow 23 extrinsic evidence in to explain the scope and extent of 24 the document. I have some real concerns about this line of 25 questioning going forward in regards to the scope and extent 1807 01 of the parties or interpretation of the document. 02 C.O. CAFFREY: Thank you, Mr. O'Laughlin. I am not 03 sure who stood up first, Mr. Nomellini or Mr. Birmingham. 04 MR. NOMELLINI: I stand -- I'll yield to Mr. 05 Birmingham. 06 C.O. CAFFREY: Mr. Birmingham and then Mr. Nomellini. 07 MR. BIRMINGHAM: I really hate to disagree with another 08 party to the agreement. I agree with Mr. O'Laughlin's 09 statement of the law. He is absolutely correct. But I 10 think that we, as parties, are asking the Board to adopt an 11 agreement in lieu of imposing conditions to implement the 12 1995 Water Quality Control Plan. 13 Again, I agree with the statement of the law, but I 14 think that the Board needs to have an understanding of how 15 this is going to -- this agreement is going to work, if it 16 is adopted. Whether we do it in this phase or Phase II-A, 17 that is, I think, a question that can be debated. But the 18 Board does need to have an understanding of how it is going 19 to work. 20 And to address Mr. O'Laughlin's point, I think what we 21 can do is we can enter into a stipulation. But as between 22 future disputes among the parties, the statements by an 23 individual representative of one party, are not going to 24 bind them in terms of that future dispute. We probably will 25 be back before this Board if there's a dispute about the 1808 01 implementation of this agreement. And, again, judging by 02 what the Board has done in the past, the Board is not going 03 to merely throw away its jurisdiction over this issue or 04 delegate its responsibility to some group of agencies; it's 05 going to, I know, maintain that responsibility to oversee 06 the implementation of the agreement. 07 If we have that stipulation, I think it will address 08 Mr. O'Laughlin's point. It is rare that I join in support 09 of a question that Mr. Jackson is going to ask, but I do 10 think here it is a legitimate point that the Board needs to 11 have explained. 12 C.O. CAFFREY: Thank you, Mr. Birmingham, and also 13 thank you for the vote of confidence in the Board. 14 Mr. Nomellini and then Ms. Zolezzi, and then go back to 15 Mr. Jackson. 16 MR. JACKSON: And then, I think, Ms. Leidigh also would 17 like to get -- 18 C.O. CAFFREY: Then Ms. Leidigh, absolutely. 19 MR. JACKSON: She knows more than the rest of us. 20 C.O. CAFFREY: Without a doubt. 21 MR. NOMELLINI: I rise to state my opposition to the 22 contention that the law as quoted by Mr. O'Laughlin is 23 applicable here. I will get to that next. 24 Secondly, I agree that this Board needs to have an 25 understanding of this agreement. Regardless of the rest of 1809 01 the rules, but I think the rule of the law applicable to the 02 document and accepting what we call parol evidence are being 03 misapplied here because we are not seeking evidence that is 04 contrary to the terms of the agreement. We are seeking 05 evidence to help understand the agreement, not to controvert 06 its terms. 07 Nobody here has taken a controverted -- a position of 08 argument against the agreement. We are all just trying to 09 understand it. 10 Courts all the time, even when there is a controversy 11 involving itself, basically, say, "Look, I don't understand 12 enough about it. It is not absolutely clear in its face." 13 And the old rules were we find an ambiguity and then we 14 bring in the parol evidence. The rules are even looser 15 today than that. It is really a question of relevance. 16 It does help you as a decision maker, taking this 17 testimony in and giving it appropriate weight, as to the 18 understanding is, what the interpretation is of that 19 agreement. 20 C.O. CAFFREY: Thank you very much, Mr. Nomellini. 21 Ms. Zolezzi. 22 MS. ZOLEZZI: I agree wholeheartedly with Mr. 23 Nomellini. The only thing I would add, everyone is saying 24 how important it is that the Board understand what this 25 agreement means, and I totally agree with that. 1810 01 C.O. CAFFREY: It would help. 02 MS. ZOLEZZI: It is also very important that the other 03 parties understand what this agreement means. With all 04 deference to the writers of this agreement, it is extremely 05 ambiguous. The only way we are going to find that out is to 06 ask the parties what their understanding of the agreement 07 they signed was. Because that is going to help us decide 08 whether or not we are going to object to this agreement or 09 not object to this agreement. It is critically important. 10 C.O. CAFFREY: Thank you. 11 One more time Mr. O'Laughlin, I will allow you to go 12 ahead. 13 MR. O'LAUGHLIN: It is not that we don't want the 14 parties or the Board to understand the agreement. The 15 difficulty here is opening a box that is going to cause 16 difficulty down the line. And the problem here is you have 17 before you eight alternatives. And some of those 18 alternatives were proposed by parties. Some of them were 19 not. 20 Let's take, for example, Alternative Number 2 or 21 Alternative Number 3, are we then going to be allowed to put 22 on State Water Resources Control Board staff to explain how 23 they came up with those alternatives and explain and 24 understand the meanings of the concept behind those 25 alternatives? That is difficult here. 1811 01 If the answer to that is yes, then I am satisfied. We 02 can go forward and have a discussion and have those 03 explanations. 04 C.O. CAFFREY: Thank you for your commentary and your 05 concerns, Mr. O'Laughlin; Mr. Jackson. 06 MR. JACKSON: For the record, I would like to put on 07 the record the reason for the question. 08 C.O. CAFFREY: Go ahead. 09 MR. JACKSON: So that we have it clearly. It is my 10 understanding or my impression that Section 7.0 and 15.3 are 11 directly contradictory, and in that case under the parol 12 evidence rule I am allowed to ask for the understanding of 13 the parties, as to whether the Board has jurisdiction or 14 not. Because one says that: 15 The parties' obligations are conditioned upon 16 the entry of an order for which the Board 17 would have to have jurisdiction. (Reading.) 18 And 15.3 says: 19 Nothing contained in this agreement shall 20 constitute the acknowledgment of any 21 jurisdiction. (Reading.) 22 C.O. CAFFREY: Thank you, Mr. Jackson. 23 We are going to go off the record for a second. 24 (Discussion held off record.) 25 C.O. CAFFREY: We are back on the record. 1812 01 I want to hear from Ms. Leidigh. 02 MS. LEIDIGH: Just very briefly. One, the technical 03 rules of evidence that are contained in the Evidence Code do 04 not apply to administrative proceedings before the Board. 05 C.O. CAFFREY: I am sorry, I did not hear. Were you 06 in the negative, "do not apply"? 07 MS. LEIDIGH: They do not apply. 08 C.O. CAFFREY: Thank You. 09 MS. LEIDIGH: With the one exception of a hearsay rule 10 which is contained in the Administrative Procedures Act. 11 Additionally, I want to point out, Section 11415.60, 12 which Mr. O'Laughlin mentioned, the language in that section 13 that he was referring to appears to me to apply to the 14 discussions that went on during these settlement 15 negotiations, not to what the parties intend or understand 16 as to what is in the document. And I will read that part. 17 It is says: 18 No evidence of conduct or statements made in 19 settlement negotiations is admissible to 20 prove liability for any loss or damage, 21 except to the extent provided in Section 1152 22 of the Evidence Code. (Reading.) 23 Nothing in this subdivision makes admissible any public 24 document created by a public agency. 25 C.O. CAFFREY: Thank you, Ms. Leidigh. 1813 01 I will tell you what we are going to do. Mr. Stubchaer 02 and I are going to break bread together so we can discuss 03 this, and we will come back at -- I am going to make it 04 1:15. So, that gives a little time to talk. We will come 05 back at 1:15 with a ruling. 06 Thank you very much. 07 (Luncheon break taken.) 08 ---oOo--- 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1814 01 AFTERNOON SESSION 02 ---oOo--- 03 C.O. CAFFREY: We are back on the record. 04 With regard to the matter upon which we adjourned about 05 an hour and 15 minutes ago, we have had consultation with 06 Ms. Leidigh, Mr. Stubchaer and I, and we have reviewed the 07 statutes and regulations. Furthermore, it is of great 08 interest to the Board to hear information about the 09 agreement, so we are going to allow this line of 10 questioning. 11 Mr. Jackson, you may proceed. 12 MR. CAMPBELL: Mr. Campbell. 13 C.O. CAFFREY: Mr. Campbell. 14 MR. CAMPBELL: May I address? 15 Mr. Birmingham had proposed a compromise position. 16 C.O. CAFFREY: Mr. Campbell, maybe you better come up 17 the -- this is in regard to the suggestion of a stipulation? 18 MR. CAMPBELL: I would ask that the Chair make a ruling 19 regarding Mr. Birmingham's suggestion. 20 C.O. CAFFREY: I am not sure what the procedure is 21 here. If I understand clearly, if there is an agreement 22 among all the parties, we would certainly -- we would 23 recognize that. 24 Ms. Leidigh, you want to -- 25 MS. LEIDIGH: I am not quite sure what the proposal 1815 01 was. 02 C.O. CAFFREY: I think the proposal, if I remember it 03 correctly -- you may restate it if I am wrong, Mr. 04 Birmingham. The proposal was that all the parties who are 05 signatories to the agreement would stipulate that whatever 06 the testimony was of one signator, the rest would not be 07 held necessarily to that floor, nor would anything said be 08 precedential to that. Is that correct? 09 MR. O'LAUGHLIN: That's correct, Chairman Caffrey. 10 Really, there is no need for a ruling by the Chair, because 11 that is probably outside the scope of your authority to tell 12 us to stipulate to something. 13 C.O. CAFFREY: That is why I would say, we not have an 14 objection to it. That is among the parties to -- 15 MR. O'LAUGHLIN: We will take care of this, and we will 16 get it in writing, the San Joaquin River Group Authority, 17 the members represented therein. We will get a written 18 stipulation, and take care of Mr. Campbell's concerns. We 19 can go forward with the testimony as it is now. 20 C.O. CAFFREY: Please understand, also, Mr. O'Laughlin, 21 and other parties, we are -- the spirit in which we are 22 doing this is we are very interested in understanding the 23 agreements. We know how hard people worked on it. We know 24 how hard others or how much others are concerned. We want 25 to do the right and fair thing. 1816 01 In that spirit I am going to try a little deviation 02 from our procedure in cross-examination. Because Mr. Ploss 03 is not available next week -- 04 Right, is that correct, Mr. Ploss? 05 MR. PLOSS: I will be available on Thursday. 06 C.O. CAFFREY: Still, let's see how more 07 cross-examiners we had here. We had Ms. Cahill, Mr. 08 Nomellini after Mr. Jackson; is that correct? 09 Sir, you are? 10 MR. HASENCAMP: Bill Hasencamp with Contra Costa Water 11 District. 12 C.O. CAFFREY: Spell your name for me, sir. 13 MR. HASENCAMP: H-a-s-e-n-c-a-m-p. 14 C.O. CAFFREY: You wish to cross-examine, also? 15 MR. HASENCAMP: Yes. Mr. Maddow, our attorney, 16 couldn't be here today, and I have a few questions. 17 C.O. CAFFREY: All right, sir. I will put you after 18 Mr. Nomellini. 19 What I was going to say is that I would like to try 20 limiting an initial limit, an actual limit on the 21 cross-examination as a first pass-through of each of the 22 remaining cross-examiners of 30 minutes so that we can at 23 least get through -- everybody gets a first pass. If 24 somebody needs more time than that, for instance if Mr. 25 Jackson felt he needed more time than that, after hearing 1817 01 the other cross-examiners, we will have you each stand up 02 and tell us if you need more time and how much. 03 MR. JACKSON: I do the 30 minutes and go away? 04 C.O. CAFFREY: You do the 30 minutes and Ms. Cahill 05 does the 30, and then if anybody needs more time after 06 that. I think that is fair. Because those who have 07 cross-examined up to this point, I don't believe anybody 08 took a full 30 minutes or anywhere close to it, unless 09 somebody thinks they did. We were keeping pretty good track 10 up here. 11 You have 23 minutes left, as a matter of fact, Mr. 12 Jackson. That was all on your clock. The other stuff we 13 did, we didn't penalize you on. 14 Why don't you proceed. 15 MR. JACKSON: Thank you, sir. 16 Mr. Ploss, I believe we were at the point where I asked 17 you your understanding of Section 15.3 on Page 18. Have you 18 reviewed Section 15.3? 19 MR. PLOSS: No, I have not. 20 MR. JACKSON: Would you please, sir. 21 MR. PLOSS: Okay. 22 MR. JACKSON: By the section is the Bureau of 23 Reclamation disputing the authority of the State Water Board 24 over the Bureau's water rights permits for the Central 25 Valley Project? 1818 01 MR. PLOSS: No, we are not. 02 MR. JACKSON: Calling your attention to Section 7.0, is 03 it your understanding that all five of the items listed in 04 Section 7.0 must exist prior to the signing of the agreement 05 by the parties? 06 MR. PLOSS: Could you repeat your question? 07 MR. JACKSON: Yes, sir. 08 Is it your understanding that the way the proposed 09 agreement -- let me back off to make it clearer. 10 The Bureau of Reclamation has not signed the agreement, 11 have they? 12 MR. PLOSS: No. 13 MR. JACKSON: None of the Department of Interior 14 Agencies, to your knowledge, have signed the agreement? 15 MR. PLOSS: None have signed the agreement. 16 MR. JACKSON: That is because of the requirement, among 17 other things, I suppose, in 10.1.4 on Page 13? 18 MR. PLOSS: That is correct. 19 MR. JACKSON: Do you know, does the Bureau have a NEPA 20 process ongoing in regard to this agreement? 21 MR. PLOSS: Yes, we do. 22 MR. JACKSON: What is the present status of the NEPA 23 process, if you know? 24 MR. PLOSS: The Department of Interior is in the 25 process of completing what we refer to as an administrative 1819 01 draft that will then be available for agency review by 02 federal and state agencies upon review of administrative 03 draft, it will be issued as a public draft for public 04 comment. 05 MR. JACKSON: Do you have any idea when the 06 administrative draft will be finished, sir? 07 MR. PLOSS: Tentative schedule is that we will 08 circulate an administrative draft to the federal and state 09 agencies in early to mid August of this year. 10 MR. JACKSON: So, in the next couple of weeks? 11 MR. PLOSS: Yes. 12 MR. JACKSON: Thank you. 13 Now, calling your attention to Item 10.2, to your 14 knowledge, has the Bureau petitioned the State Water 15 Resources Control Board for a Water Code Section 1707 16 permit, or this says petition? 17 MR. PLOSS: No, we have not. 18 MR. JACKSON: Will that take place after the NEPA 19 document or before the NEPA document is finished? 20 MR. PLOSS: I am not aware of the process that we will 21 follow. 22 MR. JACKSON: Is it the Bureau's expectation, calling 23 your attention to 10.3, the implementation matters, is it 24 the Bureau's understanding of the agreement that if the 25 negotiations are not acceptable or the Board does not have 1820 01 -- after your environmental document, or the Board does not 02 approve, adopt and implement the VAMP, that the agreement 03 will still exist amongst the parties? 04 MR. BRANDT: Compound question. Objection. 05 MR. JACKSON: If the Board fails to adopt and implement 06 the VAMP under terms consistent with this agreement, will 07 the Bureau still be bound by the agreement? 08 MR. BRANDT: Objection. Calls for legal conclusion. 09 C.O. CAFFREY: Answer, to the best of your ability, 10 Mr. Ploss. 11 MR. PLOSS: Yes. 12 C.O. CAFFREY: Actually, I have a clarification. I am 13 not sure what you mean by the question. Maybe the witness 14 does. Do you mean that the Board adopts something other 15 than the agreement or some modified agreement? 16 MR. JACKSON: Is the Bureau still contractually bound 17 by the -- 18 C.O. CAFFREY: By? 19 MR. JACKSON: -- by the old agreement to operate under 20 the provisions of this section in front of the Board? 21 MR. PLOSS: I am not qualified to respond to that. 22 MR. JACKSON: Thank you, sir. 23 Calling your attention to Section 45 on Page 6, 24 entitled "Contingent Upon New Melones Operation." 25 MR. PLOSS: Yes. 1821 01 MR. JACKSON: This paragraph seems to indicate that the 02 Bureau is presently preparing a long-term plan of operations 03 for New Melones? 04 MR. PLOSS: That is correct. 05 MR. JACKSON: What is the status of that long-term plan 06 of operation? 07 MR. PLOSS: We are currently in the process of 08 conducting temperature modeling and temperature analysis for 09 the Stanislaus River and the operations of New Melones 10 Reservoir. 11 We are also working with members of the Stanislaus 12 River Stakeholder Group on some conjunctive use studies, and 13 we are preparing to initiate continuation of -- once we have 14 finished those studies, to continue with the necessary 15 planning work for a long-term study which will start in 16 about in 2001. 17 MR. JACKSON: Is it the present intention to operate 18 under the interim plan of operation until sometime after the 19 year 2000? 20 MR. PLOSS: We will operate to the existing or some 21 variation of the Interim Operation Plan over the next three 22 to four years, yes. 23 MR. JACKSON: Calling your attention to section 6.7, 24 Export Reductions caused by the VAMP. 25 MR. PLOSS: Yes. 1822 01 MR. JACKSON: Is it your understanding of this 02 paragraph and the negotiations that led to it, that if any 03 party who signed the agreement objects to the exports, 04 export level, then essentially Paragraph 13.2 has been 05 invoked and, as to that party, the agreement is terminated 06 or scheduled for mediation? 07 MR. PLOSS: I am not fully aware of the process that 08 would be followed. 09 MR. JACKSON: Thank you, sir. 10 Calling your attention to the section 10.0 on Page 12, 11 entitled Petition to State Water Resources Control Board, 12 and, in particular, the first question will be 10.1.1. 13 MR. PLOSS: Yes. 14 MR. JACKSON: Does the Bureau intend by its approval of 15 this section to indicate that it will meet the water quality 16 standard at Vernalis? 17 MR. PLOSS: The Bureau will operate this project in 18 compliance with applicable provisions then existing for the 19 Water Quality Control Plan. 20 MR. JACKSON: That includes the water quality standard 21 at Vernalis? 22 MR. PLOSS: That includes the water quality provisions 23 that are in the 1995 Water Quality Control Plan for 24 Vernalis, yes. 25 MR. JACKSON: Thank you, sir. 1823 01 Calling your attention to 10.1.3 on Page 13, would you 02 review that section for me, sir. 03 MR. PLOSS: Yes. 04 MR. JACKSON: Does this section indicate to you that if 05 the Bureau needed more water to meet the Vernalis water 06 quality standard that by this section they agree that they 07 will not ask the SJRGA or its members to supply water for 08 those objectives? 09 MR. PLOSS: Could you be more specific when you say 10 "supply water"? 11 MR. JACKSON: That they will not require the supplying 12 of water from a non-willing seller. 13 MR. PLOSS: Yes. 14 MR. JACKSON: Who are the members of the SJRGA covered 15 by that section, in your opinion, sir? I guess the easier 16 way to do that would be to go back to the parties at the 17 start. 18 MR. PLOSS: Okay. 19 MR. JACKSON: Does this mean that the United States 20 Department of Interior will not be required to supply more 21 water, in your opinion? 22 MR. PLOSS: 10.1.3 makes reference to the SJRGA and its 23 members, the parties to the agreement. Paragraph 1.3 lists 24 the members of the SJRGA. The Bureau is not one of those 25 members. 1824 01 MR. JACKSON: All right. And in your understanding, 02 neither is the California Department Water Resources? 03 MR. PLOSS: That's correct. 04 MR. JACKSON: Neither is the Central Valley Project 05 Export interests? 06 MR. PLOSS: That's correct. 07 MR. JACKSON: Neither are the State Water Contractors? 08 MR. PLOSS: That is correct. 09 MR. JACKSON: Neither is the Kern County Water Agency? 10 MR. PLOSS: That's correct. 11 MR. JACKSON: The Tulare Lake Basin Water Storage 12 District? 13 MR. PLOSS: That is what is stated in the document, 14 correct. 15 MR. JACKSON: All the ones listed in 1.4 are not 16 members that are part of the San Joaquin River Group 17 Authority; is that correct? 18 MR. PLOSS: That is what is stated, yes. 19 MR. JACKSON: By the way, on this list I notice 1.5. 20 Environmental Community Parties, you answered some questions 21 in regard to Westlands and Delta-Mendota. To your 22 knowledge, has Natural Heritage Institute and the Bay 23 Institute signed anything in regard to this agreement? 24 MR. PLOSS: I am not aware if they have signed. 25 MR. JACKSON: Mr. Ploss, is it the position of the 1825 01 Bureau of Reclamation that folks who were on -- folks who 02 divert water from the San Joaquin Watershed who are not 03 members of the San Joaquin River Group are still liable for 04 water for the Vernalis flow and are not protected by this 05 agreement from a call from the Bureau for more water? 06 MR. BRANDT: Can I -- just one thing. 07 C.O. CAFFREY: Go ahead, Mr. Brandt. 08 MR. BRANDT: I am fine with the question other than it 09 is vague as to San Joaquin Watershed. I want to make sure 10 we are specific here about which part we are talking about. 11 C.O. CAFFREY: Could you clarify? 12 MR. BRANDT: Above Vernalis? 13 MR. JACKSON: Yes, above Vernalis. I can use an 14 example. Let's say Tuolumne Utility District, who is 15 upstream of New Melones, they are not on the list. So are 16 they still liable for water for Vernalis if the Board 17 approves this document? 18 MR. BIRMINGHAM: I am going to object to the form of 19 the question. It included a statement "being called by the 20 Bureau of Reclamation." I believe that that assumes facts 21 not in evidence. There is nothing that authorizes the 22 Bureau to make a call for water. It would be the State 23 Water Resources Control Board that would impose that 24 obligation on the water user. 25 C.O. CAFFREY: I believe Mr. Birmingham raises an 1826 01 important accuracy. Could you rephrase your question? 02 MR. JACKSON: Yes, I can. 03 The Bureau, to use a word we have used before, 04 backstopping these parties. Are you backstopping the rest 05 of the people in the San Joaquin as well, above Vernalis? 06 MR. PLOSS: As we have stated in the agreement, the 07 Bureau of Reclamation along with the California Department 08 of Water Resources are assuming the responsibility to meet 09 the 1995 Water Quality Control Plan. That goes to meeting 10 that plan in case of termination. It also applies to 11 meeting the requirements of the plan that go beyond the San 12 Joaquin River Agreement. 13 To what extent the Board may impose some of those 14 requirements or responsibilities on other parties, I can't 15 respond to that. 16 MR. JACKSON: Would it be fair to say, then, that other 17 parties had better beware because they could be responsible 18 for the Vernalis flow if these parties in the San Joaquin 19 group authority are not? 20 MR. PLOSS: I am not in a position to give that kind of 21 advice. 22 MR. JACKSON: Calling your attention to 12.2 on Page 15 23 at the bottom -- 24 MR. PLOSS: Yes. 25 MR. JACKSON: This section seems to indicate that there 1827 01 may be a habitat conservation plan at the request of any 02 party to the document. Is there a habitat conversation plan 03 contemplated as part of this document? 04 MR. PLOSS: I am not aware of that. 05 MR. JACKSON: Has there been any request that there be 06 a habitat conservation plan? 07 MR. PLOSS: I am not aware of any request. 08 MR. JACKSON: Has there been any request by -- I guess 09 you wouldn't deal with the NCCPs. 10 Thank you very much, sir. 11 C.O. CAFFREY: Thank you, Mr. Jackson. 12 That actually completes your cross-examination since 13 you did it in less than 30 minutes. 14 MR. JACKSON: Yes, sir, it does. 15 C.O. CAFFREY: Ms. Cahill. 16 MS. CAHILL: My questions have been answered, so I 17 will save you another 30 minutes by not asking them. 18 C.O. CAFFREY: Thank you, Ms. Cahill, although we 19 always like to hear from you. 20 Mr. Nomellini. 21 ---oOo--- 22 CROSS-EXAMINATION OF REBUTTAL TESTIMONY 23 BY CENTRAL DELTA WATER AGENCY 24 BY MR. NOMELLINI 25 MR. NOMELLINI: Thank you, Mr. Chairman. Dante John 1828 01 Nomellini for Central Delta parties. 02 I may replow a brief bit of the field that has been 03 already covered. I got confused. 04 Has there been a formal consultation with the U.S. Fish 05 and Wildlife Service with regard to endangered species and 06 this agreement, the San Joaquin River Agreement? 07 MR. PLOSS: No, there has not. 08 MR. NOMELLINI: Has there been a formal consultation 09 with regard to endangered species with the National Marine 10 Fishery Service with regard to the San Joaquin River 11 Agreement? 12 MR. PLOSS: No, there has not. 13 MR. NOMELLINI: I think in your last round of 14 questioning you made it clear under the terms of the San 15 Joaquin River Agreement, the Bureau was committing to meet 16 the 1995 Water Quality Control Plan, including the Vernalis 17 salinity requirement; is that correct? 18 MR. PLOSS: That is correct. 19 MR. NOMELLINI: Now, is it your understanding that 20 State Department of Water Resources has also made such a 21 commitment by way of the proposed San Joaquin River 22 Agreement? 23 MR. PLOSS: The agreement leaves the responsibility 24 with the Bureau and the Department of Water Resources to 25 comply with the '95 Water Quality Control Plan, and I would 1829 01 believe within their respective capabilities to do so. 02 MR. NOMELLINI: Does the Department of Water Resources 03 have any capability of meeting the San Joaquin River portion 04 of the 1995 Water Quality Control Plan? 05 MR. PLOSS: I am not aware of any facilities that are 06 operated by the Department of Water Resources that would 07 allow them to do that. 08 MR. NOMELLINI: There is no commitment by way of this 09 agreement that they would wheel water for the Bureau to 10 facilitate meeting the 1995 -- the Bureau's meeting the San 11 Joaquin River portion of the 1995 Water Quality Control Plan? 12 MR. PLOSS: There is no such commitment. 13 MR. NOMELLINI: Calling your attention to Page 10, 14 Paragraph 7, in particular the discussion about an order of 15 the State Board, and my particular question is: What do you 16 envision as being the order enforcing the obligations of the 17 USBR and CDWR under this agreement, if you know? 18 MR. O'LAUGHLIN: Objection. Calls for legal counsel 19 conclusion. What we can all surmise by this question, and 20 we have already discussed this since the April workshop is, 21 we are going to try to understand when we get there. So if 22 the witness has some pertinent knowledge pursuant to the 23 agreement as to what that order would be. 24 C.O. CAFFREY: Well, I think Mr. O'Laughlin raises a 25 good point. Because I even stated today that we are taking 1830 01 evidence in a phased way. But we still need to explore 02 further the question of the decision making process in a 03 phased way. I will also say that if Mr. Ploss knows the 04 answer, maybe he ought to tell us. 05 MR. NOMELLINI: My argument on the point would be that 06 we are all seeking, as you said, to try to learn what these 07 people mean by this agreement and what they contemplate 08 here. It is not clear on its face what they are talking 09 about. That is all. 10 C.O. CAFFREY: I understand what you are trying to get 11 at. Frankly, I don't think, biasing the witness, I don't 12 think the question is answerable by him either. You can say 13 -- if you have an answer, you can say so, sir. We are not 14 requiring you to. 15 MR. PLOSS: I will give you an answer. 16 C.O. CAFFREY: It is your call. Go ahead. 17 MR. PLOSS: My expertise in water right matters is 18 limited, but as I understand now the State Board has 19 jurisdiction over the water rights of the Bureau of 20 Reclamation, and they will continue exercising their 21 jurisdiction over our water rights. 22 MR. NOMELLINI: That is what you consider to be 23 enforcing the obligations? 24 MR. PLOSS: They have the ability to enforce this 25 agreement through the continuing jurisdiction over our water 1831 01 rights without issuing an order that would specifically 02 modify the conditions of our water rights. 03 MR. NOMELLINI: So, the term "enforcement," as you 04 understand its meaning in this agreement, would not go so 05 far as to a court effort to get you to comply -- get the 06 Bureau to comply with meeting a particular standard, such as 07 the Vernalis water quality standard? 08 MR. BRANDT: Objection. Vague. 09 C.O. CAFFREY: It's vague and speculative. Gives you 10 the willies, too. 11 MR. NOMELLINI: No. I don't think it was vague. I 12 thought maybe it was too clear and, therefore, they didn't 13 want to answer. 14 C.O. CAFFREY: I don't think it is too clear. Try 15 something else. 16 MR. NOMELLINI: You already answered the question; that 17 is all right. That is all I have. 18 Thank you. 19 C.O. CAFFREY: Thank you, Mr. Nomellini. 20 So far no need to repeat on this cross-examination as 21 we go through. 22 Mr. Hasencamp. Good afternoon and welcome. 23 ---oOo--- 24 // 25 // 1832 01 CROSS-EXAMINATION OF REBUTTAL TESTIMONY 02 BY CONTRA COSTA WATER DISTRICT 03 BY MR. HASENCAMP 04 MR. HASENCAMP: My name is Bill Hasencamp, for the 05 record. Regrettably, Mr. Maddow could not be here today. 06 In the spirit of trying to find out more information about 07 the agreement, I do have a few questions for Mr. Ploss. 08 C.O. CAFFREY: Please proceed. 09 MR. HASENCAMP: I have to confess I am not an attorney. 10 I might not have the smoothest delivery. 11 MR. BIRMINGHAM: Although he spent a lot of time with 12 attorneys. 13 C.O. CAFFREY: If past practice is any indication, I 14 am sure they will be willing to help you along as you ask. 15 MR. HASENCAMP: I was anticipating that. 16 Mr. Ploss, previously you mentioned that you were 17 familiar with the San Joaquin River Agreement; is that true? 18 MR. PLOSS: In general terms, yes. 19 MR. HASENCAMP: Do you recall the agreement states that 20 the USBR and the DWR would assume responsibility for the 21 San Joaquin River Basin share of the Delta outflow 22 objectives of the 1995 Water Quality Control Plan, the 23 proverbial backstop? I can show you the passage. 24 MR. PLOSS: Would you please. 25 MR. HASENCAMP: Please. It is 10.1.2 on Page 13 of the 1833 01 agreement. 02 MR. PLOSS: Yes. 03 MR. HASENCAMP: You mentioned that you have not done an 04 analysis to quantify the value of the flow obligation; is 05 that true? 06 MR. PLOSS: Could you be more specific? 07 MR. HASENCAMP: I believe Mr. Herrick was asking you if 08 you had done analysis of how much water would be required to 09 provide this backstop or any water that is a deficit because 10 of agreement that the two projects have to make up. 11 You haven't done an analysis of how much water that is, 12 have you? 13 MR. PLOSS: No, we have not. 14 MR. HASENCAMP: Are you familiar with the State Board's 15 Draft EIR with this proceeding? 16 MR. PLOSS: Yes. 17 MR. HASENCAMP: If I may put up a chart of that, 18 please. Thank you. 19 This Table 5-2 of the revised Chapter 5 of the Draft 20 EIR. The title of the table is Base Case Water Deliveries 21 and Delivery Changes, Critical Period Annual Average in 22 Thousand Acre-Feet. 23 Now, let's assume that the State Board goes through 24 this process and no settlement agreements have been 25 accepted, and Board chooses Alternative 3. In the critical 1834 01 year periods what would -- if you can read it, if not I can 02 give you the Draft EIR. That might help. It is the lower 03 figure on the page. 04 What would be the delivery change from the base case 05 for the San Joaquin River system direct diversions? 06 MR. BRANDT: I am going to try and help here. 07 Objection, just as far as -- are you asking -- it is not 08 clear whether he is asking him to just state what is there 09 or whether he is asking him to adopt these numbers. 10 MR. HASENCAMP: I am asking him to state what is in the 11 Draft EIR. 12 MR. BRANDT: The document speaks for itself, then. 13 C.O. CAFFREY: I am going to allow him to answer. 14 MR. HASENCAMP: Thank you, Mr. Caffrey. 15 MR. PLOSS: Under which alternative? 16 MR. HASENCAMP: Alternative 3, the water right priority 17 alternative. 18 MR. PLOSS: States that it is 815,000 acre-feet. 19 MR. HASENCAMP: Yes, but I was referring specifically 20 to the San Joaquin River system direct diversions, which is 21 the third row under Alternative 3. 22 MR. PLOSS: Would be the 99. 23 MR. HASENCAMP: Eastman Lake, do you understand that 24 that is tributary to the San Joaquin River? 25 MR. PLOSS: I am not familiar with all the facilities. 1835 01 MR. HASENCAMP: Is the Chowchilla River tributary to 02 the San Joaquin River? 03 MR. PLOSS: Yes, I believe so. 04 MR. HASENCAMP: If Eastman Lake were on the Chowchilla 05 River, then it would be tributary to the San Joaquin River; 06 is that true? 07 MR. PLOSS: Yes. 08 MR. HASENCAMP: How much water in Alternative 3 from a 09 delivery change from the base case for Eastman Lake in 10 Alternative 3? 11 MR. PLOSS: States 19,000 acre-feet. 12 MR. HASENCAMP: So, under Alternative 3, at least from 13 what we can see from this table in the Draft EIR, the San 14 Joaquin reductions in drought period would be 118,000 15 acre-feet? 16 MR. BRANDT: Objection. Assumes facts not in 17 evidence. This is not necessarily -- are you asking -- I am 18 wondering whether he is asking him to adopt these numbers 19 and make that conclusion. If so, vague. 20 C.O. CAFFREY: If you clarify -- try your question 21 again, Mr. Hasencamp. 22 MR. ROBBINS: Mr. Chairman, actually, I really have no 23 objection to the line of questioning. I just need the 24 record to reflect that this is draft, and there are comments 25 to this very chart that are before the staff, some of those 1836 01 numbers have actually been critiqued and may, in fact, be 02 erroneous. 03 Just for the record. 04 C.O. CAFFREY: Thank you, Mr. Robbins, your 05 clarification, clarifying statement is in the record. 06 Try your question again, Mr. Hasencamp. 07 MR. HASENCAMP: Certainly. And I am using this as an 08 illustrative example. I am not trying to get Mr. Ploss to 09 commit to any numbers. This is an illustrative example to 10 understand how the San Joaquin River Agreement works. 11 So, assume that the State Board adopted Alternative 3 12 and assume that the numbers in the table are correct, 13 wouldn't it be true that in critical years that the San 14 Joaquin River delivery change would be about 118,000 15 acre-feet? 16 MR. PLOSS: Yes. 17 MR. HASENCAMP: Are you familiar with the dry year 18 relaxation clause in the San Joaquin River Agreement? 19 MR. PLOSS: Yes, I am. 20 MR. HASENCAMP: Under certain circumstances, 21 specifically that if the sum of the current year and the 22 previous two years is four or less, and I am reading from 23 the agreement on 5.3, in that case, then, the San Joaquin 24 River Group members will not be required to provide water 25 above existing flows? 1837 01 MR. PLOSS: Yes. That will be under the third year of 02 a drought. 03 MR. HASENCAMP: Assuming the previous two years were 04 at least dry and critical or more severe than the rest? 05 MR. PLOSS: Yes. 06 MR. HASENCAMP: In the recent six-year drought, 1987 07 through 1992, isn't it true that those were all either dry 08 or critical years? 09 MR. PLOSS: I don't have those figures to tell you. 10 MR. HASENCAMP: May I present you the testimony of Dan 11 Steiner. 12 C.O. CAFFREY: While you are looking at that, I want to 13 go off the record for just a minute for a consultation. 14 Please hold your thoughts. 15 (Discussion held off the record.) 16 C.O. CAFFREY: Back on the record. 17 I hope I didn't break your train of thought too much, 18 Mr. Hasencamp, and Mr. Ploss. Please proceed. 19 MR. HASENCAMP: Thank you, Mr. Caffrey. 20 Have I handed you the testimony of Dan Steiner which is 21 Exhibit 10, I believe? 22 MR. PLOSS: Yes. Exhibit 11. 23 MR. HASENCAMP: Excuse me, Exhibit 11, thank you. 24 As far as the San Joaquin River Agreement is concerned, 25 isn't it true that 1989, '90, '91 and '92 are all listed as 1838 01 critical years? 02 MR. PLOSS: By Table 1 of Page 2 of 2 Mr. Steiner's 03 testimony, in fact, it indicates 1987 through 1992 as all 04 critical years. 05 MR. HASENCAMP: Thank you. 06 So, following from that, then, the third, fourth, fifth 07 and sixth years of that drought, the San Joaquin River Group 08 would not be required to provide any water to meet the Delta 09 objectives; is that true? 10 MR. PLOSS: Under the relaxation paragraph, that is 11 correct. 12 MR. HASENCAMP: Thank you. 13 If the State Board were to adopt the San Joaquin River 14 Agreement, and only San Joaquin River Agreement, but for all 15 the other parties there were no other agreements, so 16 Alternative 3, for example, was selected, then, in lieu of 17 the 118,000 acre-foot delivery reduction you mentioned 18 earlier, is it true that the state and federal projects 19 would provide that water if the San Joaquin River Group is 20 not providing any water? 21 MR. PLOSS: I can't foretell under the third year of 22 the drought what would be the ability of the Bureau of 23 Reclamation to meet these standards. 24 The table that is on the screen is an average of all 25 critical years. It does not depict a sequence of critical 1839 01 years of what would happen the third, fourth, fifth, and 02 sixth and seventh of a critical period. 03 MR. HASENCAMP: This is true. 04 What if we assumed that for illustrative purposes that 05 that number is constant for every critical year? And for 06 illustrative purposes to understand how the San Joaquin 07 River Agreement works, instead of them having 118,000 08 acre-feet come from the San Joaquin River Group, isn't it 09 true that like amount of water would have to be provided by 10 the state and federal projects? 11 MR. PLOSS: This is what the standards would call for, 12 yes. 13 MR. HASENCAMP: Isn't it true that the USBR and DWR 14 provide water to water supply contractors? 15 MR. PLOSS: Yes. 16 MR. HASENCAMP: If in critical years the Bureau's 17 supplies were reduced by, say, 50 percent of the alleged 18 backstop or, for example, 60,000 acre-feet to support the 19 San Joaquin River Agreement, would the supplies to 20 individual contractors also be reduced? 21 MR. BRANDT: Objection. Vague. 22 C.O. CAFFREY: Do you understand the question, Mr. 23 Ploss? 24 MR. PLOSS: Maybe you can break it out in smaller 25 pieces. 1840 01 C.O. CAFFREY: Try it again, Mr. Hasencamp. 02 MR. HASENCAMP: If the USBR had to backstop the San 03 Joaquin River Agreement in a critical year by releasing 04 60,000 acre-foot that it wouldn't have had to had 05 Alternative 3 been adopted, isn't it true that water 06 supplies to individual contractors would be reduced or could 07 be reduced? 08 MR. O'LAUGHLIN: Objection. Compound. The question 09 was good up until the second. 10 MR. HASENCAMP: I will strike the "would be -- " 11 C.O. CAFFREY: The lawyers are rating your questions. 12 MR. HASENCAMP: I would like to strike the "would" and 13 insert "could." 14 C.O. CAFFREY: Were you offering to try the question 15 again? Or do you want to ask the witness if he understood 16 it? I will give you the choice. 17 MR. HASENCAMP: Do you understand the question? 18 MR. PLOSS: I can give an answer. 19 C.O. CAFFREY: I think that means he understood it, 20 perhaps. Go ahead, answer. 21 MR. PLOSS: If you're referring to a single critical 22 year, I cannot foretell what our deliveries to contractors 23 would be. 24 MR. HASENCAMP: In general, though, isn't it true that 25 in critical year droughts, extended droughts, that most CVP 1841 01 contractors face reduced supplies? 02 MR. PLOSS: If your question is extended droughts. 03 MR. HASENCAMP: Yes. 04 MR. PLOSS: Yes. 05 MR. HASENCAMP: So, for example, an urban contractor 06 could receive a reduced allocation if the Bureau had to 07 provide water to meet the San Joaquin River Agreement 08 backstop water? 09 MR. PLOSS: I don't think I can make that connection 10 between the backstopping of the San Joaquin River Agreement 11 and critical year allocations to M&I Contractors 12 MR. HASENCAMP: Isn't it possible that CVP supplies 13 were reduced by 60,000 acre-feet in a critical year that M&I 14 contractors might lose some water or might have increased, 15 more frequent shortages? 16 MR. BIRMINGHAM: I am going to have to object to the 17 question on the grounds that it lacks foundation and assumes 18 facts not in evidence, although Mr. Hasencamp is doing a 19 wonderful job. 20 C.O. CAFFREY: Not bad for a nonlawyer. 21 MR. BIRMINGHAM: It does assume facts not in evidence, 22 and there is no foundation for the question. I think Mr. 23 Hasencamp needs to ask -- needs to identify which M&I 24 contractors he is referring to. For instance, if he is 25 referring to Contra Costa, there will be some question as to 1842 01 whether or not New Melones water could be used within the 02 boundaries of Contra Costa Water District. 03 If he is talking Stockton East, the answer may be 04 different. So, he needs to lay some additional foundation 05 for the hypothetical. 06 C.O. CAFFREY: Mr. O'Laughlin. 07 MR. O'LAUGHLIN: I would join in that objection because 08 when you are looking at the San Joaquin River Agreement, if 09 the water is coming from New Melones to meet the Vernalis 10 standard, the only impact to CVP contractors would be to 11 Stockton East Water District or to Central San Joaquin Water 12 Conservation District. 13 And then the other part of the question is if we are 14 going to the total CVP wide allocation. I don't know if he 15 is talking about that or just referring specifically to New 16 Melones. I think the question has to lay a better 17 foundation before we move on to answer a very vague and 18 ambiguous question in regards to M&I contractors. 19 C.O. CAFFREY: Thank you, Mr. O'Laughlin. 20 Mr. Hasencamp, can you add some specificity to your 21 question, based on the instruction from the two attorneys 22 that spoke in your behalf? 23 MR. HASENCAMP: Certainly. By the attorneys' questions 24 I can tell that I was not doing a good job getting out some 25 of the points. 1843 01 C.O. CAFFREY: Actually, I think they both said you are 02 doing a fairly good job for a nonlawyer. Don't lose 03 confidence now. 04 UNIDENTIFIED VOICE: That is better than they say about 05 the rest of us lawyers. 06 MR. BIRMINGHAM: I was going to observe that some of 07 the lawyers here can take some lessons from Mr. Hasencamp. 08 MR. HASENCAMP: I assume that my -- 09 C.O. CAFFREY: They are very kind this afternoon. Go 10 for it. 11 MR. HASENCAMP: I assume that the clock stops during 12 the comments, though. 13 C.O. CAFFREY: It does. As a matter of fact you have 14 17 minutes and 38 seconds remaining on your half hour. 15 MR. HASENCAMP: Thank you. 16 Mr. Ploss, as part of the backstop to the San Joaquin 17 River Agreement, isn't it true that the CVP may have to 18 release water out of Lake Shasta to offset water that is not 19 being released from the San Joaquin River to meet the Delta 20 outflow objectives? 21 MR. PLOSS: I cannot make that connection. 22 MR. HASENCAMP: If, for example, the State Board chose 23 Alternative 3, wouldn't the flow down the San Joaquin River 24 increase because of decreased upstream diversions, not CVP 25 diversions but non-CVP diversions? 1844 01 MR. PLOSS: Can you repeat that again? 02 MR. HASENCAMP: Yes. Under Alternative 3, in critical 03 droughts, non-CVP water agencies on the San Joaquin River 04 would have to release water to meet the Delta outflow 05 objectives. 06 Do you agree with that statement? 07 MR. PLOSS: Yes. 08 MR. HASENCAMP: And if the San Joaquin River Agreement 09 relieves them of that obligation, so that they did not have 10 to release water to meet the at Delta outflow objectives, 11 then the Department of Water Resources and the U.S. Bureau 12 of Reclamation would have to provide that water from 13 somewhere else, isn't that true? 14 MR. PLOSS: Bureau or DWR would continue to meet the 15 outflow obligations, correct. 16 MR. HASENCAMP: Isn't it true that most outflow 17 obligations come from either Oroville or Shasta? 18 MR. PLOSS: Not necessarily in the integration of the 19 Central Valley Project. Depending on the time of year, the 20 outflow requirements could be met from any number of 21 sources. 22 MR. HASENCAMP: But the majority of water that is 23 released to meet the Delta outflow objectives, isn't it true 24 that it would come from the Sacramento River side of the 25 Delta? 1845 01 MR. PLOSS: From the Sacramento River side of the 02 Delta, yes. 03 MR. HASENCAMP: To the extent that the San Joaquin 04 River Agreement provides less flow down the San Joaquin 05 River than Alternative 3 more flow would have to come down 06 the Sacramento River to offset the change, isn't that true? 07 MR. PLOSS: That is correct. 08 MR. HASENCAMP: So the objections raised by Mr. 09 Birmingham and Mr. O'Laughlin about this being a New Melones 10 issue aren't really true, are they -- aren't really correct? 11 MR. BRANDT: Calls for a legal conclusion. 12 MR. HASENCAMP: I will withdraw that question. 13 MR. JACKSON: You are going to be argumentative, too. 14 MR. HASENCAMP: On this table, 5-2, do you see the row 15 for the Contra Costa Canal? 16 MR. PLOSS: Yes. 17 MR. HASENCAMP: Is it true that there are -- 18 MR. PLOSS: That is the one that has zeros in it? 19 MR. HASENCAMP: Is it true that there are zeros in that 20 row? 21 MR. PLOSS: Yes. 22 MR. HASENCAMP: Thank you. 23 Do you agree with the conclusion in the Draft EIR that 24 any flow alternative that this Board might make, the change 25 in water deliveries to the Contra Costa Canal would be zero? 1846 01 MR. PLOSS: That is what is stated here in this draft. 02 MR. HASENCAMP: I am asking for your opinion as 03 operator of the Central Valley Project. Is it true that the 04 deliveries to the Contra Costa Canal will remain unchanged? 05 C.O. CAFFREY: Are you repeating the same question, 06 sir? 07 MR. HASENCAMP: Yes. 08 MEMBER FORSTER: That is because he didn't answer. 09 C.O. CAFFREY: The witness has to answer the question 10 you asked him. What were you trying to do, clarify the 11 question or -- 12 MR. HASENCAMP: Yes. 13 MR. O'LAUGHLIN: I would like to object, Mr. Chairman. 14 That calls for legal conclusion on behalf of the witness as 15 to what the State Board will or will not order and what the 16 Bureau's response to that order would be. 17 C.O. CAFFREY: I misunderstood your question. I 18 thought he was asking if he thought that the chart was 19 accurate and the modeling was accurate. 20 MR. O'LAUGHLIN: That wasn't the question. 21 MEMBER FORSTER: He was trying to get the "is that 22 true" in. 23 MR. HASENCAMP: I would be happy to rephrase my 24 question. 25 C.O. CAFFREY: Why don't you try it again. 1847 01 MR. HASENCAMP: Certainly. 02 Alternative 2 in the Draft EIR is similar to the 95-6. 03 Would you agree with that? 04 MR. PLOSS: Yes. 05 MR. HASENCAMP: And the base case is Decision 1485. 06 Would you agree with that? 07 MR. PLOSS: Yes. 08 MR. HASENCAMP: Would you agree that in the critical 09 years, if the USBR is operating to meet the 95-6, are there 10 no -- would there be no cases where there would be delivery 11 reductions to the Contra Costa Canal compared to the base 12 case? 13 MR. PLOSS: I can't foretell under future operations 14 what the allocation from the Central Valley Project would be 15 to Contra Costa. 16 MR. HASENCAMP: You can't confirm that there would be 17 no delivery reductions? 18 MR. PLOSS: I cannot confirm that. 19 MR. HASENCAMP: I have one last question. 20 Did Contra Costa Water District sign the San Joaquin 21 River Agreement? 22 MR. PLOSS: I am not aware if they signed or not. 23 MR. HASENCAMP: I should rephrase it. The statement of 24 support for the San Joaquin River Agreement? 25 MR. PLOSS: I am not aware of their signatory. 1848 01 MR. HASENCAMP: Thank you, Mr. Ploss. 02 Thank you, Mr. Caffrey. 03 C.O. CAFFREY: Thank you, Mr. Hasencamp. 04 Questions from the staff? 05 MS. LEIDIGH: I will start. 06 C.O. CAFFREY: Ms. Leidigh. 07 ---oOo--- 08 CROSS-EXAMINATION OF REBUTTAL TESTIMONY 09 BY STAFF 10 MS. LEIDIGH: Mr. Ploss, I understand that the Bureau 11 of Reclamation is preparing an environmental document before 12 it signs the San Joaquin River Agreement. 13 Is that true? 14 MR. PLOSS: Yes. It's actually a document that will 15 meet both NEPA and CEQA requirements. 16 MS. LEIDIGH: If the Board were to approve terms and 17 conditions from the San Joaquin River Agreement and 18 subsequently the Department of the Interior did not adopt 19 the San Joaquin River Agreement, did not sign it after 20 having prepared the environmental documentation, what would 21 happen with respect to the San Joaquin River Agreement, in 22 your opinion? 23 MR. PLOSS: At this point we have signed the statement 24 of support, and we anticipate, with the completion of our 25 environmental documents and the necessary consultation under 1849 01 the Endangered Species Act, that we will be free to sign the 02 agreement. I can't contemplate what would happen if we were 03 unable to sign. 04 MS. LEIDIGH: But is that a certainty that you will 05 sign the agreement? 06 MR. PLOSS: Your expectation is that we will be able to 07 sign, yes. 08 MS. LEIDIGH: Would you expect that the Bureau of 09 Reclamation will have terms and conditions placed in its 10 water right permits if the State Water Board approves the 11 terms of the San Joaquin River Agreement? 12 MR. PLOSS: We anticipate that the Board would continue 13 its jurisdiction over our permits. That would not require 14 specific amendments to conditions in our permit, but they 15 would just continue with that jurisdiction that they have 16 had in the past. 17 MS. LEIDIGH: So, what mechanism would you expect that 18 the Board might use? Do you think the Board would just 19 adopt an order that generally directed the Bureau to be 20 responsible for meeting all of the flows that are required 21 either under the San Joaquin River Agreement or under the 22 Water Quality Control Plan? 23 MR. PLOSS: I believe as I am familiar with the water 24 rights, it would be the same mechanism that was used under 25 D-1485, again under 95-6, that we are ordered to comply with 1850 01 those standards. None of our water rights were specifically 02 -- there was no change to the conditions in those water 03 rights, only the order that would comply with the new 04 standards. 05 MS. LEIDIGH: What kind of fallback provision should or 06 would the Department of Interior recommend to be included in 07 a water right decision to assure that if there are not funds 08 available for the San Joaquin River Agreement, that the 09 experiment could be carried out? 10 MR. PLOSS: Right now we are using in this agreement or 11 proposed to use in this agreement funds from the restoration 12 fund under CVPIA which is ongoing. Those revenues are 13 collected as a surcharge from the water and power customers 14 of the Central Valley Project and appropriated then back to 15 the Bureau and for the Department of Interior through 16 federal appropriations. And we anticipate that that process 17 will continue. We do not foresee a circumstance where 18 Congress or the administration would cut off the source of 19 those funds in the future at least over the life of this 20 agreement. 21 MS. LEIDIGH: Is that appropriation made on an annual 22 basis? 23 MR. PLOSS: Yes, it is. 24 MS. LEIDIGH: Does the Bureau of Reclamation or the 25 Department of Interior anticipate filing a water right 1851 01 change petition under Section 1707 of the Water Code? 02 MR. PLOSS: I am not familiar enough with the process 03 that is followed under that, who would actually file a 04 petition. 05 MS. LEIDIGH: That is all I have. 06 C.O. CAFFREY: Thank you, Ms. Leidigh. 07 Any questions from Board Members? 08 Mr. Brown. 09 I am sorry, more from the staff? 10 Ms. Whitney. 11 MS. WHITNEY: Just two quick ones. 12 Does the environmental documentation that is being 13 prepared by the Bureau cover anything other than water 14 acquisition portion of the VAMP? 15 MR. PLOSS: It covers the provisions of the VAMP -- 16 well, when you say "VAMP," I am going to respond the San 17 Joaquin River Agreement. The environmental documentation 18 will cover the provision of the water to meet the flows 19 during the VAMP period and also addresses additional water 20 acquistions that will take place in accordance with the 21 agreement. 22 MS. WHITNEY: You also indicated that you had not begun 23 formal consultation with the Fish and Wildlife Service or 24 NMFS? 25 MR. PLOSS: That's correct. 1852 01 MS. WHITNEY: Have you commenced informal consultation? 02 03 MR. PLOSS: We have commenced informal consultation, 04 yes. 05 C.O. CAFFREY: Thank you. 06 Mr. Brown. 07 ---oOo--- 08 CROSS-EXAMINATION OF REBUTTAL TESTIMONY 09 BY BOARD MEMBERS 10 MEMBER BROWN: Thank you, Mr. Chairman. 11 Mr. Ploss, is it your office that keeps track of water 12 that is diverted by your contractors and exchange 13 contractors? 14 MR. PLOSS: Those records are kept by our individual 15 area offices. They are located in Fresno, Folsom and 16 Redding. 17 MEMBER BROWN: Are you familiar with those records? 18 MR. PLOSS: Generally, yes. Those records are taken by 19 those offices and then turned over to our finance division. 20 MEMBER BROWN: You talk about Oakdale Irrigation 21 District. Are you familiar with their operations or South 22 San Joaquin Irrigation District operations? 23 MR. PLOSS: I am not familiar with their operations, 24 no. 25 MEMBER BROWN: Do you know the quantities of water that 1853 01 they divert or approximately on an annual basis? 02 MR. PLOSS: Their contract's with the Bureau for a 03 total of 600,000 acre-feet. Their actual deliveries have 04 varied over the years. I don't have recollection of those 05 figures. 06 MEMBER BROWN: But you have access to the figures? 07 MR. PLOSS: Yes. 08 MEMBER BROWN: Is that 300,000 a piece? 09 MR. PLOSS: Yes. Contracts are 300,000 each. 10 MEMBER BROWN: I forget the year, but it seems like a 11 few years ago there was a change in New Melones that gave 12 the two districts a conservation account. 13 Are you familiar with that? 14 MR. PLOSS: I am aware of it, but I don't know the 15 details of that. That is our contracting office. 16 MEMBER BROWN: Without going into the details, do you 17 know if that was an account that was developed to conserve 18 water, real water as some people have said? What was the 19 purpose? Do you know the purpose behind it? 20 MR. PLOSS: As I understand it. And you may want to 21 ask others, it is a mechanism whereby when the two districts 22 are able to conserve water, that water becomes available to 23 store in New Melones, bank in New Melones, and then is 24 available to the two districts during a drought period. 25 MEMBER BROWN: Do you have a definition of real water? 1854 01 MR. PLOSS: When we look at whether water is real or 02 not, we look at what the impact of that water is to the 03 Central Valley Project. Commonly, we look at real water 04 during a water acquisition. If we are purchasing water and 05 then in terms as a result of purchasing that water there is 06 an equivalent impact to the water supply in the Central 07 Valley project, we view that we didn't buy real water. 08 MEMBER BROWN: Do you have a definition of what it is, 09 though? 10 MR. PLOSS: Not a definition. 11 MEMBER BROWN: Do you have an idea? 12 MR. PLOSS: No. My idea is that if we are buying real 13 water, we want to see real, wet water. We don't want to buy 14 something and find out that we bought our own water back. 15 C.O. CAFFREY: I think we told you what real water 16 isn't. 17 MEMBER BROWN: On transfers between CVP contractors, 18 does the Bureau have to approve those transfers? 19 MR. PLOSS: That is under our contracting office. We 20 do approve those, generally. I can't give you any details. 21 MEMBER BROWN: Do you have any major concerns with the 22 San Joaquin River Agreement? 23 MR. PLOSS: We do not. It provides an opportunity to 24 comply with the standards, if the Board determines that, 25 provides what the biologists have said would be protection 1855 01 for fisheries in the Delta. 02 We are using the San Joaquin Agreement as an 03 opportunity to move on to other water supply and 04 environmental issues in the Valley and not be a prolonged 05 battle over water rights. 06 Hopefully, we can settle some issues on the San Joaquin 07 River. We have offered in that process to, what has been 08 termed today as, backstopping. In the event that this 09 agreement is terminated, we will backstop it until the Board 10 can take further action. 11 We have also offered that we will backstop the other 12 parties along the San Joaquin River and tributaries that are 13 not party to this agreement. 14 MEMBER BROWN: Thank you. 15 Thank you, Mr. Chairman. 16 C.O. CAFFREY: Thank you, Mr. Brown. 17 Questions from other Board Members? 18 All right. I would like to -- 19 Mr. Herrick, do you have any redirection on rebuttal? 20 MR. HERRICK: No, Mr. Chairman, but I would like to 21 make clear, are the Bureau's permits for New Melones 22 operation part of the record? I know they are exposed under 23 this water rights proceedings, but are the permits, 24 themselves, part of the record? 25 C.O. CAFFREY: Ms. Leidigh. 1856 01 MS. LEIDIGH: I think we did list them in the enclosure 02 to the hearing notice, so they are part of the permits that 03 are involved in this hearing, and we have also listed them 04 in staff exhibits. 05 C.O. CAFFREY: Therefore, they are part of the 06 evidentiary. 07 MR. HERRICK: Thank you very much. 08 C.O. CAFFREY: Before you do do that, what is -- the 09 next step in my mind, I would like to go off the record for 10 just about a minute or so and consult with Ms. Leidigh and 11 Mr. Stubchaer. 12 (Discussion held off the record.) 13 C.O. CAFFREY: We are back on the record. 14 This is the time to offer any evidentiary exhibits you 15 might have to support your rebuttal testimony, Mr. Herrick. 16 Do you have any? 17 MR. HERRICK: I don't believe I introduced any 18 documents to Mr. Ploss. It was my understanding that we 19 were going to have the mystery guest next. Then we would 20 resume with my rebuttal case in chief. So, I have no 21 documents to offer now. 22 I believe earlier in the -- 23 C.O. CAFFREY: I lost you somewhere. What did you say 24 about resuming? Say again. 25 MR. HERRICK: It was my understanding that after Mr. 1857 01 Ploss we would go back to the San Joaquin River Group 02 Authority's unknown witness, which was to close their case 03 in chief, and then go back to resuming my rebuttal case. 04 C.O. CAFFREY: Then go back to rebuttal in general, as 05 a matter of fact, for the entire phase. Yes, yes. 06 MR. HERRICK: I would like to also say that in the case 07 in chief we marked as Exhibit, SDWA 37, part of the AFRP. 08 So, if you want me to offer that now, I will, but I can also 09 wait until we are done with the rebuttal cases. It doesn't 10 matter to me. 11 C.O. CAFFREY: I think what I was trying to do, is just 12 do things specific to this particular witness since he is 13 leaving. 14 MS. LEIDIGH: We were looking through the exhibit list 15 earlier and it appears that when Mr. Herrick offered Mr. 16 Ploss' testimony in Phase I, he did not actually offer Mr. 17 Ploss' statement of qualifications, although it was 18 introduced in Phase I. 19 So it seems to me that it is appropriate for him to 20 offer that in evidence, and then there is also the question 21 of the San Joaquin River Agreement and statement of support. 22 And whether you or somebody else is going to offer that, 23 since it has been discussed with Mr. Ploss' testimony. 24 C.O. CAFFREY: I was going to get to that. I wasn't 25 quite sure who was the appropriate person to offer that. 1858 01 MR. HERRICK: If there is omission as to Mr. Ploss' 02 qualifications, certainly, I would like those in. I believe 03 there would be no disagreement. I was assuming, because we 04 were taking him out of order, that the San Joaquin River 05 Agreement would be offered by the proponents eventually. 06 If you want me to do it now, I will do it. 07 C.O. CAFFREY: Mr. O'Laughlin. 08 MR. O'LAUGHLIN: Thank you, Mr. Chairman. 09 I think he should offer it into evidence. Otherwise I 10 am going to move to strike all the testimony of Mr. Ploss as 11 being without foundation. So, he can move it in now and 12 that will support the record that he has made in this phase. 13 C.O. CAFFREY: As a matter of fact, if Mr. Herrick 14 wasn't going to offer it, I am sure that one of the Board 15 Members was, and they technically have that right, I 16 believe. I am speculating, excuse me. 17 MR. HERRICK: To make this easier, Mr. Chairman, I will 18 offer it, then. However, it is not lack of foundation. It 19 is not entered. He read from a document and so to me that 20 would answer that issue. 21 But I will offer the San Joaquin River Agreement draft, 22 actually Exhibit Number 2, of San Joaquin River Authority as 23 evidence, if that is what you would like. 24 C.O. CAFFREY: We have two exhibits offered. Do I 25 suspect that -- 1859 01 Mr. Birmingham, do you have a comment on that? 02 I thought, perhaps, you were getting ready to comment. 03 This is appropriate procedure in your eyes, Ms. 04 Leidigh? 05 MS. LEIDIGH: Yes. 06 C.O. CAFFREY: Is there any objection to the Board 07 accepting into the evidentiary record the two exhibits that 08 Mr. Herrick is offering? 09 MR. NOMELLINI: I have a question. Does that mean that 10 we are not going to have a witness from the San Joaquin 11 River Group to explain the document? 12 C.O. CAFFREY: I don't know what that means. We 13 haven't got to that phase yet. All I know is that the Board 14 Members want this document in the evidentiary record, and 15 because we have taken evidence and testimony on it today. 16 MR. HERRICK: I would just like to comment with Mr. 17 Nomellini. I hope that is not the case because the 18 attorneys approached me this morning and asked me for Mr. 19 Ploss' convenience if they could put him on first. So we 20 granted them that consideration. 21 If this turns out to be somebody's clever way of not 22 putting on a witness that was promised, I think the record 23 should note that. It is entirely up to you how to handle 24 that. 25 C.O. CAFFREY: Thank you, Mr. Herrick. 1860 01 Before we accept any evidence into the record, let's 02 hear a clarification from Mr. O'Laughlin, if that is what he 03 is here for. 04 Mr. O'Laughlin. 05 MR. O'LAUGHLIN: Thank you, Mr. Chairman. 06 No, this is not the boggy man in the closet nor a 07 clever pretense to get my exhibit in without having our 08 witness testify. The party who has asked to submit the 09 document can rest assured that we will have a witness on 10 immediately hereafter to submit to questions by other 11 parties and this Board in regards to this agreement. 12 C.O. CAFFREY: Thank you, sir. 13 Ms. Forster and then Mr. Birmingham. 14 MEMBER FORSTER: I just think that the record will look 15 odd with Mr. Herrick submitting this. I don't understand 16 that. Why don't you -- why didn't they submit it? 17 MR. O'LAUGHLIN: I've got a clarification for that. 18 The reason why is that we originally tried to get it in our 19 case in chief, and what has happened is that there has been 20 a time lag. Mr. Herrick has agreed to accommodate us in 21 regards to his rebuttal. His rebuttal is finished. But the 22 document is not in yet. So, what will look strange really is 23 if we went forward, you would have a whole lot of testimony 24 by Mr. Ploss without the exhibit there. 25 So, I feel very comfortable that he can offer it in his 1861 01 case. It will go into evidence, and we will come back in 02 our case and have the mystery guest come up and testify in 03 regards to the San Joaquin River Agreement. So I think it 04 is entirely appropriate. 05 C.O. CAFFREY: In actuality we may have preempted Mr. 06 Birmingham to offer the evidence. 07 MR. BIRMINGHAM: I am going to move at this point, Mr. 08 Chairman, to admit into the evidence the San Joaquin River 09 Agreement, our Exhibit 2. 10 C.O. CAFFREY: Thank you, sir. 11 Frankly, that is how I had expected it would turn out, 12 although, when Mr. Herrick made the offering, I didn't see 13 anybody else stand up. 14 Mr. Stubchaer. 15 C.O. STUBCHAER: Does that mean that Mr. Herrick gets 16 to withdraw his offer? 17 C.O. CAFFREY: That is what I was about to ask. Thank 18 you, sir. 19 Are you withdrawing your submission of the agreement as 20 part of your evidentiary exhibits? 21 MR. HERRICK: Apparently so. 22 C.O. CAFFREY: I am not asking you, I am just asking 23 you if. 24 MR. HERRICK: Yes. I withdraw. I have no desire to 25 offer their document as evidence. 1862 01 C.O. CAFFREY: All right. We have an offering of an 02 evidentiary exhibit related to Mr. Ploss' qualifications, I 03 believe in his testimony. That is offered by Mr. Herrick. 04 We also have the San Joaquin River Agreement. Is that 05 Exhibit 2? 06 MS. LEIDIGH: San Joaquin River Group Authority Exhibit 07 2. 08 Now I have a question. 09 C.O. CAFFREY: That is offered by Mr. Birmingham. 10 MS. LEIDIGH: Question for clarification. 11 C.O. CAFFREY: Go ahead, Ms. Leidigh. 12 MS. LEIDIGH: Since Mr. Birmingham offered it, is he 13 offering it on behalf of Westlands or is he offering it on 14 behalf of San Joaquin River Group Authority? 15 C.O. CAFFREY: Mr. Birmingham. 16 MR. BIRMINGHAM: I don't think that it makes any 17 difference. It is a document that has been marked for 18 identification as a piece of evidence. There has been an 19 appropriate foundation laid. I am offering it. I am the 20 attorney for Westlands Water District, but I think, Mr. 21 Chairman, that anytime a document has been introduced or 22 marked as evidence, any party can move to admit it after the 23 appropriate foundation has been laid. 24 But I am making the motion on behalf of Westlands and 25 the San Luis and Delta-Mendota Water Authority who I am here 1863 01 representing. 02 C.O. CAFFREY: Thank you, sir. 03 Ms. Leidigh. 04 MS. LEIDIGH: Well, I am willing to accept Mr. 05 Birmingham's theory of how we can do this, that it would be 06 San Joaquin River Group Authority's exhibit, unless there is 07 some serious reason not to. 08 C.O. CAFFREY: Thank you, ma'am. 09 Sir, Mr. Jackson. 10 MR. JACKSON: I was just going to say, I join in Mr. 11 Birmingham' motion. Let's get it in. 12 MR. BRANDT: I join, too. 13 C.O. CAFFREY: Is there any objection to accepting both 14 of the exhibits in question? Or either? 15 None seen, none heard, the exhibits are accepted. 16 Now, that was rebuttal out of turn. And I was going to 17 ask Mr. O'Laughlin if he is ready to present his mystery 18 guest. Are we at that point? 19 MR. O'LAUGHLIN: I think we are at a break. 20 C.O. CAFFREY: Thank you, Mr. O'Laughlin. Can we have 21 your mystery guest after break? Right after break. 22 (Break taken.) 23 C.O. CAFFREY: Let's resume. 24 Mr. O'Laughlin. 25 MR. O'LAUGHLIN: We are ready. Are we back on the 1864 01 record? 02 C.O. STUBCHAER: We are back on the record. 03 MR. O'LAUGHLIN: I would just like to make a brief 04 preparatory remark before we go forward with the witnesses. 05 As you know, the San Joaquin River Agreement came in 06 front of this Board on April 21st of this year for an all 07 day hearing in regards to the document. That document has 08 been made available to the parties to this proceeding since 09 April 1st of this year. We have submitted that document as 10 of June of this year, along with our testimony. 11 We had hoped that in the interim that if parties had 12 questions and concerns regarding the document, that they 13 would have raised them to us so we could have addressed them 14 in a more informal manner. 15 There were several parties, such as Stockton East Water 16 District, who wrote us letters asking what certain phrases 17 or words meant in regards to particular sections of the 18 agreement. And we worked those things through with Stockton 19 East. 20 We have been, the San Joaquin River Group Authority and 21 the members who have signed the agreement, have been working 22 with other parties, trying to get the word out about this 23 agreement since April of this year. In the spirit of 24 cooperation, we are going to take the unusual step today of 25 swearing in an attorney to testify in regards to the 1865 01 agreement, who is probably the most knowledgeable. As you 02 know, Mr. Robbins was initially in front of this Board at 03 the beginning of the Phase II proceeding to present an 04 outline of the agreement as a policy statement. We are now 05 going to offer Mr. Robbins as a witness in regards to the 06 San Joaquin River Agreement and have him testify under oath 07 regarding that agreement. 08 Also, we will have Mr. Steiner available to respond to 09 questions in regards to the agreement. Since the agreement 10 has already been entered into evidence, I will not go 11 through the groundwork in regards to the agreement. 12 I will now call Mr. Steiner and Mr. Ken Robbins. Mr. 13 Steiner has previously been sworn. Mr. Robbins has not. 14 (Oath administered by C.O. Caffrey.) 15 C.O. CAFFREY: Mr. Steiner, welcome back. 16 MR. CAMPBELL: Mr. Chairman, Matthew Campbell of the 17 Attorney General's Office on behalf of the Department of 18 Fish and Game. 19 I would just like to clarify that, although the 20 Department of Fish and Game has the statement of -- letter 21 of intent to support the agreement, I would like to make it 22 clear for the record, that whatever these witnesses may say 23 in terms of a legal interpretation of the agreement, does 24 not necessarily reflect the views, interpretation or 25 understanding of the Department of Fish and Game. I would 1866 01 just like to make that clear. 02 C.O. CAFFREY: Thank you very much. 03 There was some discussion earlier this afternoon about 04 an effort to have a stipulated agreement among on the 05 parties as that kind of concern. That is up to all the 06 parties, and the Board will certainly have no objection to 07 any such document that all agree to. 08 MR. O'LAUGHLIN: As you can imagine, Mr. Chairman, with 09 50 parties as signatories to the agreement, there is a great 10 apprehension when one party calls one witness to testify 11 regarding the document. So understand that concern. We 12 will work with the California Department of Fish and Game if 13 a stipulation is necessary in that regard. 14 Other than that, I have no direct questions of either 15 witness since the San Joaquin River Agreement, Exhibit 16 Number 2, has been offered into evidence, and are now for 17 cross-examination. 18 C.O. CAFFREY: Thank you very much, Mr. O'Laughlin. By 19 a showing of hands, how many parties wish to cross-examine 20 these witnesses in this phase? 21 Mr. Nomellini, Mr. Herrick, Mr. Suyeyasu, Mr. 22 Hasencamp, Mr. Moss. 23 I have Nomellini, Herrick, Suyeyasu, Hasencamp and 24 Moss. 25 Anybody else? 1867 01 Let's go in the reverse order since we haven't heard 02 from Mr. Moss in these proceedings yet. So we will go Moss, 03 Hasencamp, Suyeyasu, Herrick and Nomellini. 04 C.O. CAFFREY: I am assuming, Mr. O'Laughlin, I am 05 going to assume that these witnesses will be available, 06 depending on how far we get today, this panel, if you want 07 to call them that, will be available on Tuesday. 08 MR. O'LAUGHLIN: My hope is we can complete them today, 09 but if we cannot complete them today, they will be available 10 Tuesday morning at 9:00 a.m. 11 C.O. CAFFREY: That is an excellent goal. I can remind 12 the questioners that there is no limit on relevant 13 cross-examination. However, if you all want to have it as a 14 goal that we get done sometime this afternoon at a 15 reasonable hour, that is a worthy goal. 16 You want to try the 30 minutes again on 17 cross-examination? Why don't we do that? And see if that 18 allows us to get through the group. And then if people need 19 more time than that, we will go back through the list. 20 Good afternoon, Mr. Moss. 21 MR. MOSS: Good afternoon, Mr. Caffrey and Members. 22 Richard Moss of Pacific Gas & Electric. I just have a few 23 questions, not 30 minutes, hopefully. 24 C.O. CAFFREY: Please proceed, sir. 25 ---oOo--- 1868 01 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 02 BY PACIFIC GAS & ELECTRIC 03 BY MR. MOSS 04 MR. MOSS: Mr. Robbins, does the San Joaquin River 05 Authority now, or does it have the intention to in the 06 future, seek through this Board or otherwise any 07 contribution by upstream nonmembers for water which the 08 members would otherwise provide for use in the VAMP? 09 MR. ROBBINS: No. 10 MR. MOSS: I thank you. 11 Could you give any further assurances -- can the 12 authority give any further assurances to those upstream 13 nonmembers that they basically will not be asked to 14 contribute water to supply the water needed for the VAMP? 15 MR. ROBBINS: I believe the jurisdiction over that, the 16 issue rests with this Board. I suppose the Authority could 17 give those assurances that it wouldn't seek them, but I am 18 not sure that that would be relevant at this point. 19 MR. MOSS: Has the Authority or its members reviewed 20 the electric power production impacts of the VAMP water 21 release commitment? 22 MR. STEINER: The San Joaquin River Agreement is being 23 documented as described previously in environmental 24 documentation and the impacts of the San Joaquin River 25 Agreement are being evaluated. 1869 01 MR. MOSS: Would that include the potential of shifts 02 in the timing of power production? 03 MR. STEINER: As it results from change in operation 04 from the parties that are affected by the agreement. 05 MR. MOSS: That is affirmative? 06 MR. STEINER: Yes, it is. 07 MR. MOSS: And in that process will they review those 08 impacts with the California independent system operator? 09 MR. STEINER: I am not that familiar regarding that, 10 the utility industry out there. 11 MR. MOSS: I would urge them to do so. 12 Thank you. 13 C.O. CAFFREY: Thank you, Mr. Moss. 14 Mr. Hasencamp. 15 ---oOo--- 16 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 17 BY CONTRA COSTA WATER DISTRICT 18 BY MR. HASENCAMP 19 MR. HASENCAMP: Bill Hasencamp, Contra Costa Water 20 District. 21 Good afternoon. 22 You agree -- I will ask this to the panel, who feels 23 more appropriate can answer it. 24 You agree that settlement agreements are preferable to 25 protracted water rights hearing? 1870 01 MR. ROBBINS: Can you repeat the question for me? 02 MR. HASENCAMP: Yes. 03 Do you agree that settlement agreements are preferable 04 to a protracted water rights hearing? 05 MR. ROBBINS: Yes, absolutely. 06 MR. HASENCAMP: And do you agree that the San Joaquin 07 River Agreement is preferable to a Phase VII water right 08 fight, so to speak? 09 MR. ROBBINS: For those who are signatory to the 10 agreement, absolutely. 11 MR. HASENCAMP: Is the San Joaquin River Agreement 12 being offered as a take-it-or-leave-it agreement? And what 13 I mean by that is that the only options available to the 14 Board are to accept the agreement as it is currently written 15 or to move to a Phase VIII? Are those the only two options 16 available to the Board? 17 MR. ROBBINS: The answer to that, actually, is yes and 18 no, and let me explain that. You have to have been in this 19 process for the last two and a half years with all the 20 parties deciding where comas would go, let alone what 21 changes of intent might be made relative to changing of 22 structure of the agreement. So, in that sense, the 23 agreement is offered to the Board as an implementation 24 alternative. 25 However, it does contain within it a section which is 1871 01 entitled, I believe it is numeric, 10.3. Talks about 02 implementation matters. And it does indicates that if the 03 Board does fails to adapt the VAMP under its current terms, 04 the parties will cooperate and petition to seek a change in 05 that, or in the alternative they will work in good faith and 06 negotiate modification of the agreement, both relative to 07 the Board changing the document and having it still be 08 valid, I'm afraid I can't comment whether that would hold 09 together. 10 MR. HASENCAMP: Thank you. 11 Were you here when Mr. Ploss testified that he had not 12 done any quantification of the amount of water that it would 13 take to backstop the San Joaquin River Agreement? 14 MR. STEINER: Yes. 15 MR. HASENCAMP: Is there any assurance in the agreement 16 that a flow obligation won't be transferred to a party 17 outside of the agreement? 18 MR. STEINER: I think the assurance lies in Page 13, as 19 far as Mr. Ploss identified in Section 10.1.2, 10.1.3 about 20 the Bureau and CDWR have provided a backstop. Don't know 21 what additional assurance, other than someone accepting the 22 full responsibility, you can provide. 23 MR. HASENCAMP: Would the backstop have to be 24 quantified in order for the Bureau and the Department of 25 Water Resources to know how much water to provide? 1872 01 MR. STEINER: I can't tell you what went through their 02 minds. As far as their determination, they are able to 03 accept what they have accepted. 04 MR. HASENCAMP: So, in a sense they have written a 05 blank check for any amount of water that the agreement falls 06 short of what might be there in the absence of the 07 agreement? 08 MR. O'LAUGHLIN: Objection. Vague and ambiguous as to 09 "blank check," and argumentative. 10 C.O. CAFFREY: And it wasn't exactly in the form of a 11 question. Could you try it again, Mr. Hasencamp. 12 MR. HASENCAMP: Are there any limits to the obligations 13 of the state and federal projects in meeting the backstop 14 requirement for the San Joaquin River Agreement? 15 MR. O'LAUGHLIN: I am going to object again. It is 16 vague and ambiguous as to "backstop." There is no 17 terminology in the agreement saying "backstop." We want to 18 refer -- the witnesses are being offered to respond to 19 specific provisions of the agreement. 20 Let's get the terminology right. "Backstop" does not 21 appear anywhere in the agreement. 22 MR. HASENCAMP: Although backstop has been used 23 commonly throughout these hearings. 24 MR. O'LAUGHLIN: Not by these parties. We have not 25 used "backstop." 1873 01 C.O. CAFFREY: Mr. O'Laughlin, let me ask: Who did you 02 direct the question to, Mr. Hasencamp, which of the parties, 03 of the two gentlemen? 04 MR. HASENCAMP: Mr. Steiner. 05 C.O. CAFFREY: Mr. Steiner, do you understand the 06 question? 07 MR. STEINER: The question was argumentative to me. 08 However, as I expressed that -- I understand the question. 09 C.O. CAFFREY: If you have a problem with it, I am not 10 going to require you to answer it. 11 MR. STEINER: I have a problem with the question. 12 C.O. CAFFREY: Try it again, Mr. Hasencamp. 13 MR. HASENCAMP: For the Bureau of Reclamation and 14 Department of Water Resources to assure that they provide 15 enough water to backstop the agreement -- 16 MR. O'LAUGHLIN: I am going to object, again. 17 C.O. CAFFREY: Do you gentlemen have difficulty with 18 the term "backstop"? 19 MR. STEINER: I understand what he is getting to as far 20 as what was the exposure to the projects for trying to 21 provide. It's all relative, compared to what are they 22 providing. However, to answer the question, I don't know 23 the analysis that the agencies used to determine their 24 acceptance of the these provisions. 25 C.O. CAFFREY: Go ahead, Mr. Hasencamp. 1874 01 MR. HASENCAMP: No further questions. 02 Thank you. 03 C.O. CAFFREY: Thank you, sir. 04 Mr. Suyeyasu. Good afternoon, again, sir. 05 MR. SUYEYASU: Good afternoon, Mr. Chairman. 06 ---oOo--- 07 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 08 BY THE ENVIRONMENTAL DEFENSE FUND 09 BY MR. SUYEYASU 10 MR. SUYEYASU: I might direct your attention to Section 11 3.4 of the agreement. Might be a simple question. 12 That defines San Joaquin River portion as the segments 13 of 1995 Water Quality Control Plan related to flows at 14 Vernalis specifically. And Number 3, what does that refer 15 to? 16 MR. STEINER: I would have to see. This is on Page 17 5? I need to see a copy of the Water Quality Control Plan. 18 I didn't bring mine with me today. 19 MR. SUYEYASU: It says: 20 Southern Delta San Joaquin River and Airport 21 Way Bridge, Vernalis. (Reading.) 22 MR. STEINER: I'd only offer that these are terms that 23 I believe that come out of tables of the Water Quality 24 Control Plan. 25 MR. SUYEYASU: Would you concur in that answer? 1875 01 MR. ROBBINS: I think I would have the same answer, 02 yes. 03 MR. SUYEYASU: Offered as part of this exhibit is a 04 Appendix B, Planning and Operation, Coordination for the 05 Vernalis Adaptive Management Plan. 06 Is that part of the agreement, Appendix B? 07 MR. ROBBINS: Yes. 08 MR. SUYEYASU: Is it incorporated into the agreement by 09 reference or merely by the fact it is attached to the 10 agreement? 11 MR. ROBBINS: I believe it is incorporated by reference. 12 MR. SUYEYASU: I have looked through this trying to 13 find this. I haven't been able to find it. Do you know 14 where that is? 15 MR. ROBBINS: Between the three of us, we should be 16 able to find this. 17 MR. GODWIN: To save time, it is 3.7. 18 C.O. CAFFREY: Thank you, Mr. Godwin. 19 MR. SUYEYASU: I looked through it five times and I 20 couldn't find that. Thank you. 21 Now, Section 11.5 of the agreement talks about any 22 decision of the management committee. I believe it says 23 that unanimity must be reached, there must be a unanimous 24 vote. 25 Is that for any party -- must there be unanimity for 1876 01 all parties at a particular meeting or for any decision to 02 be made must an approval be gotten by all parties to the 03 agreement? Do you agree with that? 04 MR. ROBBINS: Is the question in order to effectuate a 05 decision of the management committee, a unanimous vote is 06 required? If that is the question -- 07 MR. SUYEYASU: Yes. 08 MR. ROBBINS: The answer is yes. 09 MR. SUYEYASU: Is that a unanimous vote of all parties 10 to agreement at a specific meeting of the management 11 committee, or all parties to the agreement such that if some 12 parties aren't at a meeting you must go back and seek their 13 approval? 14 MR. ROBBINS: You mean do we intend that if a Korean 15 War breaks out because we weren't at a particular meeting? 16 That is not the intent of the agreement. Frankly, it is 17 probably not clear in that regard. We intend that issues 18 come before the management committee by way of the technical 19 committee. Management committee meetings will be noticed. 20 So we assume people who want to be there to be heard on a 21 particular issue will be. So, my assumption is it will be 22 at a noticed meeting of the management committee. 23 MR. SUYEYASU: So, your response is won't require total 24 unanimity, but just those parties who are at a noticed 25 meeting? 1877 01 MR. O'LAUGHLIN: Objection. It assumes that everybody 02 is not at a meeting. We got the point. 03 MR. SUYEYASU: I just want to clarify. 04 Is that also true for meetings of the technical 05 committee? 06 MR. ROBBINS: My assumption is that it would be. 07 MR. SUYEYASU: That isn't outlined in agreement 08 anywhere? 09 MR. ROBBINS: I believe the agreement is relatively 10 clear. It takes a unanimous vote of all members to take an 11 action, and parties who are absent from a meeting are simply 12 not participating. I would not take them as a dissenting 13 vote. 14 MR. SUYEYASU: Under Paragraph 11.5, the management 15 committee may change the export limits and Vernalis flow 16 targets of the agreement. Is that correct? 17 MR. STEINER: They can, yes. 18 MR. ROBBINS: They may be adjusted. 19 MR. SUYEYASU: Is there any standard within the plan 20 that outlines what factors they must consider in changing 21 the export limits or the Vernalis flow targets? 22 MR. STEINER: There is no bulleted list of what they 23 may put into a consideration. 24 MR. ROBBINS: Again, I think it is important that you 25 understand that in order for that to change, that is, 1878 01 practically speaking, the way it is intended to work, is 02 that the technical people, the professionals, if you will, 03 that are proposing the experiment will see something in the 04 system that needs to be reviewed. And if they feel a need 05 to modify the flows or exports in some way to achieve that 06 review, they have the ability to do so. That is the whole 07 concept of adaptation. 08 But before they can do that, they have to make that 09 recommendation to the technical committee. The technical 10 committee must unanimously vote to do that. 11 While I am on this point, if you don't mind me climbing 12 on my soap box for just a moment, some indication has been 13 made in earlier testimony about the likelihood, if you will, 14 of hiding the ball, as it were, during this process. I 15 would suggest to you that Fish and Game and Fish and 16 Wildlife, the real live parties, the export interests and 17 River Group Authority would be unlikely to hide anything, 18 let alone that kind of a ball. 19 I just want you to be aware that if the flows get 20 changed or at least recommended for change that means that 21 all the fishery agencies went along with the process as 22 well. That's been referred to management, and they also 23 agreed. In that event it gets referred to the State Board, 24 and in the absence of an objection from the State Board, in 25 that time frame then it will occur. 1879 01 MR. SUYEYASU: Before the management committee can 02 change the export limits as well as the target flows, they 03 need a recommendation from the technical committee; is that 04 correct? 05 MR. ROBBINS: That is my understanding, yes. 06 MR. SUYEYASU: Is that set forth in the agreement 07 somewhere? 08 MR. ROBBINS: I suspect that 11.5. It's not as clear 09 as it should be. That was certainly the intent of the 10 parties. Also, remember, that at the management committee 11 all of the parties who have a right to put a representative 12 on the technical committee are also represented at the 13 management committee. 14 So the same dynamic tension, if you will, would exist 15 at both committees. 16 MR. SUYEYASU: It is your testimony, at least what is 17 outlined in 11.5, the management committee could make that 18 change without a recommendation? 19 MR. ROBBINS: It's clear at least from my perspective. 20 Let me qualify, again, my testimony because of concerns. 21 There are many, many parties, as you heard, and I happen to 22 be the attorney for one. And so my interpretation certainly 23 doesn't bind everyone else. 24 I was present in the room with the intent of the 25 parties that the management committee would only be changing 1880 01 the flows and export ratios to the extent that it was 02 recommended by the technical committee, and that they all 03 agreed to do so. 04 MR. SUYEYASU: This agreement is intended to provide an 05 equivalent level of protection to the Water Quality Control 06 plan; is that correct? 07 MR. STEINER: Yes. It is stated throughout this 08 document. 09 MR. SUYEYASU: Have any environmental organizations 10 signed the letter of support for the agreement? 11 MR. ROBBINS: No. The current status of that process, 12 as I understand it, NHI supports the agreement in principle, 13 but has difficulty with the issue of the source of funds. 14 Bay Institute is essentially at the same level of 15 support. I believe they both testified at the April 21st 16 workshop to that effect. 17 MR. SUYEYASU: No further questions, Mr. Chairman. 18 C.O. CAFFREY: Thank you, Mr. Suyeyasu. 19 Mr. Herrick. 20 MR. HERRICK: Thank you, Mr. Chairman. 21 ---oOo--- 22 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 23 BY SOUTH DELTA WATER AGENCY 24 BY MR. HERRICK 25 MR. HERRICK: Mr. Robbins, thank you for making 1881 01 yourself available to do this. 02 MR. ROBBINS: I wish I could say it was a good thing. 03 C.O. CAFFREY: It is your second favorite thing, and 04 you won't tell us what your first is. 05 Go ahead, Mr. Herrick. 06 MR. HERRICK: Do you know when the -- generally, when 07 the discussions that led to the San Joaquin River Agreement 08 began? 09 MR. ROBBINS: Yes, as a matter of fact. I believe it 10 was January the 5th, 1995. I know why you are going to say. 11 The reason is because it -- about noon, as a matter of 12 fact. The reason is because, if you will recall, the 13 execution of the Bay-Delta Accord on December 15th of '94 14 got the attention of a lot of people in the San Joaquin 15 Valley, and we began to discuss this matter. 16 MR. HERRICK: What I am getting to, at some point did 17 representatives of the group that eventually became the San 18 Joaquin River Group Authority invite the South Delta to 19 participate in those negotiations? 20 MR. ROBBINS: I don't believe so. I don't recall. As 21 a matter of fact, I believe that the initial discussions, as 22 they began -- I think maybe I could explain that a little 23 easier if I could have a minute or two to explain how these 24 discussions evolved. 25 We commenced these discussions early on with members of 1882 01 the Sacramento Valley and the San Joaquin Valley in a group 02 that was referred to as G13. That was because there was a 03 representative from each of the rivers attempting to see 04 what could be done to start a process. 05 Early on in that process it grew to be G654, and so we 06 knew we needed to break it into pieces that were 07 manageable, because everybody wanted in on the discussions 08 having watched recent discussions have considerable 09 success. 10 As a result, the San Joaquin folks began to discuss 11 amongst themselves how they would attempt to resolve this 12 issue and two things became very clear. Those that had 13 water and those that had dollars and those that could assist 14 in making the process come to closure were the first core. 15 But we had always intended to, as sort of a concentric 16 process, to begin after at least we decided on what we 17 thought we could do to begin moving it out. And that is, I 18 think, the process we followed. 19 So, initially South Delta was not part of the process. 20 MR. HERRICK: Did at some point representatives of the 21 Authority talk to South Delta? 22 MR. ROBBINS: I believe they did, although I was not 23 among them. 24 MR. HERRICK: Do you recall whether or not at some 25 point The authority broke off discussions with South Delta? 1883 01 MR. ROBBINS: I believe they did, as a matter of fact. 02 MR. HERRICK: Do you know why they did stop talking to 03 South Delta? 04 MR. ROBBINS: No. 05 MR. HERRICK: Again, 6.6 talks about the approval of 06 the operations plan, and if that doesn't happen, the parties 07 try to get it done. If April 10th rolls around and it kicks 08 in 13.4 -- excuse that brief summary there. 09 Maybe this is you, Mr. Steiner. Assuming that this 10 isn't resolved by that cutoff date, what is your 11 understanding of the flows that will be released for a pulse 12 flow on April 15th? 13 MR. STEINER: If you refer to Paragraph 6.7, even if 14 the operations plan and -- my view again -- 15 MR. HERRICK: If I can interrupt, actually, I am 16 talking about 6.6. 17 MR. STEINER: 6.7 explains the question you asked as 18 regarding the flows. That is, the last sentence in 6.7 19 talks and speaks to the flows regarding a dispute regarding 20 operations. In my mind the dispute of the operations plan 21 primarily is going to be around, potentially, the export 22 side of the entire VAMP operation. 23 And as far as flows went, as expressed in 6.7, even if 24 there is dispute under the paragraph of export reductions, 25 even if there is a dispute on that operations plan, the 1884 01 flows will occur if the money is provided. 02 MR. HERRICK: That is interesting. I read 6.6 to say 03 if they don't agree on the operations plan, which includes 04 the determination of the existing flows and target flows. 05 So the question I am asking you, if there is no agreement on 06 the existing flows, which determines the target flows, what 07 will the flows be come April 15th? 08 MR. STEINER: You are reading into that a dispute on 09 the existing flows fits within 6.6. 10 MR. HERRICK: Is it your understanding that the 11 existing flows comes within the operations plan? 12 MR. STEINER: Yes, it would. 13 MR. HERRICK: Couldn't that be one of the reasons why 14 parties disagree? 15 MR. STEINER: It could be. 16 MR. HERRICK: If it happens, what flows would be in the 17 river at Vernalis on April 15th? 18 MR. STEINER: You're making a hypothetical that we just 19 cannot reach agreement as professionals, and hydrologists, 20 and the group, which has this nexus to make -- to want this 21 to work. If there is absolutely no agreement and no one is 22 going to do anything, you're setting up a hypothetical. It 23 seems like if the money was ready to be provided, the group 24 will provide some form of flows. 25 In the extreme event, if you are saying this bubbles 1885 01 all the way up to management committee without a decision, 02 then it looks like it will go to status quo. 03 MR. HERRICK: And the status quo would be? 04 MR. STEINER: It looks like we will start heading 05 towards provisions of the Bureau of Reclamation backstopping. 06 MR. HERRICK: Your modeling indicates that the Bureau 07 of Reclamation's -- excuse me. 08 Would that be the operations under which your model is 09 current? 10 MR. STEINER: I think Mr. Ploss said that is one 11 potential outcome. I think at that time there may be 12 consideration given, as Mr. Ploss said, by what is a 13 circumstance at hand at that point. 14 MR. HERRICK: That currently institutes a flow other 15 than the flows in the '95 Water Quality Control plan, 16 correct? MR. STEINER: I don't know. 17 MR. HERRICK: I don't have the paragraph. It is 18 contemplated that the Bureau will seek additional purchases; 19 is that correct? 20 MR. ROBBINS: That's correct. It is Article 8, as I 21 recall. 22 MR. HERRICK: Is there some understanding that those 23 additional purchases will not exceed the VAMP flows, the 24 target flows? 25 MR. ROBBINS: I don't believe that is contemplated. 1886 01 MR. HERRICK: Paragraph 8.5 talks about Oakdale 02 Irrigation District's water. 03 MR. ROBBINS: Mr. Herrick, let me be real clear. In 04 thinking my answer to you might have led you to some 05 confusion. I don't believe that willing seller/willing 06 buyer issues are limited to the VAMP flows, if that is the 07 point you were trying to make. My answer may have been 08 confusing. 09 MR. HERRICK: The question is: We heard testimony from 10 the biologist that it was very important to keep the flow 11 and exports at these incremental levels so they could get 12 good data. 13 MR. ROBBINS: Let me give you an example. In the San 14 Joaquin River Agreement there is a flow under certain 15 conditions at 2,000. There is a firm commitment to use our 16 best efforts in Article 8 to provide additional water. 17 MR. HERRICK: Let me march through that. The issue I 18 am raising is if the Bureau in some years tries to buy more 19 water than just the 31-day pulse, and we heard testimony 20 that many of the smolts go down the river in other than the 21 31 days. 22 The fact that they buy water in some years could affect 23 the VAMP data points, could it not? 24 MR. ROBBINS: I am sorry. I was distracted. Can you 25 give me the question again? 1887 01 MR. HERRICK: If the Bureau in some years has the 02 ability or intent to purchase additional water, is able to 03 purchase more water, that goes for pulse flows longer than 04 the 31 days, does that affect the VAMP data points given the 05 testimony by the biologist? 06 MR. STEINER: No. Because what we are trying to do is 07 get a VAMP data point for 31 days. I think your hypothesis 08 set up that they buy extra water to extend the pulse flow 09 period, it had no affect on the test. 10 MR. HERRICK: It may improve survivability of smolts 11 that will then either be or not be credited to the 31-day 12 pulse, if nobody knows when those smolts went down the 13 river. Is that correct? 14 MR. O'LAUGHLIN: Objection. Compound and 15 argumentative. 16 C.O. CAFFREY: I have just got to ask you, Mr. 17 Robbins. Do you understand the question? 18 MR. ROBBINS: You know, I thought I did, but I've 19 forgotten it now that we had this -- 20 C.O. CAFFREY: That certainly goes to compound, 21 nonetheless argumentative. 22 Want to try again, Mr. Herrick, please, sir? 23 MR. HERRICK: We heard from the biologist testimony 24 that fish go down past Vernalis at times other than the 25 31-day pulse flow. Would you agree with that? 1888 01 MR. STEINER: Yes. 02 MR. HERRICK: The purpose of the VAMP program is 03 maintain certain conditions in order to develop data points 04 based on certain flows at a certain time and certain export 05 rates, correct? 06 MR. STEINER: Correct. 07 MR. HERRICK: If additional water is purchased for 08 flows beyond the 31-day pulse flow, would you agree that 09 according to the biologist's testimony that could result in 10 increase salmon smolt survival for that season? 11 MR. STEINER: Yes. I believe in that. 12 MR. HERRICK: Then do you understand my question, if 13 there is purchased water in some years and not in other 14 years, won't that affect the total number of smolts and, 15 therefore, be counter to the VAMP program? 16 MR. O'LAUGHLIN: Objection. Mr. Steiner is a 17 hydrologist and not a biologist. These questions were 18 better asked of the biologist when they were here. They are 19 outside the scope of expertise of Mr. Steiner's testimony. 20 He did not set up the VAMP test program. That was done by 21 Herbold and Hanson. So if these questions needed to be 22 asked, you should have asked them back then. 23 MR. HERRICK: I appreciate we try to be melodramatic 24 here. I think we could be polite to everybody as we try to 25 get through these questions. I would ask the Board to do 1889 01 what they did to counsel when he cautioned not to make 02 comments. If Mr. O'Laughlin has objections, he can 03 make them. But I do generally resent his attitude and tone 04 of voice in lecturing people. 05 C.O. CAFFREY: I don't want to get into personalities 06 here. I think that there is a difference between objecting 07 and outbursts from the audience. But, in any case I am 08 going to ask the witness to answer the question to the best 09 of his ability. 10 MR. ROBBINS: We, frankly, are not biologists. We have 11 heard all through this negotiated process the benefits and 12 detriments, and I believe that the biologists adequately 13 testified to that issue. If your question relates to the 14 construction of the agreement, I suppose we can go -- 15 certainly that is what we are here for. 16 But relative to Exhibit A, that was the realm of the 17 biologists. I think they were adequately and very carefully 18 were cross-examined relative to this issue. I couldn't tell 19 you whether it would increase survival or not. 20 MR. HERRICK: Mr. Robbins, is the structure of the 21 agreement to allow for a longer than 31-day pulse flow? 22 MR. ROBBINS: No. 23 MR. HERRICK: Does it allow for that? Does it provide 24 for it or does it allow for it? 25 MR. STEINER: Does it allow for that? I suppose it 1890 01 does. 02 MR. HERRICK: Paragraph 8.5, Mr. Robbins, am I reading 03 that correctly, in that -- 04 MR. ROBBINS: Which paragraph? 05 MR. HERRICK: I'm sorry, 8.5. Does Oakdale Irrigation 06 District get paid twice for the water under its allocation 07 if it is not all used in the target flow that year? 08 MR. ROBBINS: No. 09 MR. O'LAUGHLIN: Objection. Allocation, vague and 10 ambiguous. 11 C.O. CAFFREY: But he answered the question. 12 MR. ROBBINS: I said, no. 13 C.O. CAFFREY: Right. 14 MR. HERRICK: Mr. Robbins, on Section 12.1 when I 15 asked this of Mr. Ploss, in the middle there it talks about: 16 Nor will they have an obligation of 1995 17 Water Quality Control Plan to mitigate the 18 impacts on water quality resulting solely 19 from any reduction in flows in the San 20 Joaquin River or its tributaries. (Reading.) 21 Can you tell me what you understand the reference to 22 "reduction in flows" to be referring to. 23 MR. ROBBINS: That is probably more appropriate for Mr. 24 Steiner. 25 MR. STEINER: It was essentially my testimony as I 1891 01 showed you those increases or decreases of water quality due 02 to the change in hydrology up or down during the year. And 03 the intent was that if those decreases of water quality were 04 due to the agreement moving water from one period to 05 another, those are -- these changes in water quality that 06 are intended, that are mentioned in this particular 07 paragraph. 08 MR. HERRICK: Could you explain what those mean, given 09 that your testimony compared a current with the plan rather 10 than the 1995 Water Quality Control Plan requirements with 11 the San Joaquin River Agreement. 12 MR. STEINER: My comparison that I provided in my 13 testimony previously was a comparison of the current 14 condition with implementation of the SJRA. And due to that 15 implementation, there is a change in hydrology which changes 16 the salinity at Vernalis; sometimes up, sometimes down. Due 17 to the ability to make these changes, under SRJA within the 18 discretion of the entities, there was no intention for these 19 entities to mitigate those changes in salinity. 20 MR. HERRICK: Those changes as only compared to your 21 current modeling information? 22 MR. STEINER: That is all I compared, yes. 23 MR. HERRICK: Mr. Robbins, if the CEQA documents for -- 24 NEPA, CEQA documents identified a significant adverse impact 25 due to these flows, do you have any opinion as to how that 1892 01 might be mitigated? 02 MR. ROBBINS: What we are talking about here, this is 03 one -- this is an example of why we had intended to do this 04 in II-A, if we got there. And the reason for that is 05 because our view of the process was it was in that 06 proceeding that we would compare the River Group alternative 07 to the other alternatives. Understand that CEQA requires 08 you to look at alternatives and identify impacts, and 09 sometimes there are just not mitigations possible for 10 impacts. 11 I am not aware that this Board would even consider the 12 notion that picking, say, Alternatives 3, 4 or 5 and moving 13 water into the pulse flow period to benefit fish would also 14 subject us to providing additional water at other times to 15 mitigate for moving the water that was ordered moved. 16 You can seek the geometric progression of that. If 17 that is the answer that you are looking for, I suppose that 18 is where we are at. 19 MR. HERRICK: That is an answer, but the one I am 20 looking for is who else is left to mitigate those impacts if 21 not the parties that have caused them? 22 MR. ROBBINS: The answer may be there will be no 23 mitigations. The answer may be it's just an unavoidable 24 consequence. 25 MR. HERRICK: That is all I have. 1893 01 C.O. CAFFREY: Thank you very much, Mr. Herrick. 02 Mr. Nomellini. 03 While Mr. Nomellini is coming up, I neglected to say 04 when we came back on the record that we have been joined by 05 Ms. Julie Lowden of our staff who is replacing Victoria 06 Whitney. 07 Welcome, Julie. 08 ---oOo--- 09 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 10 BY CENTRAL DELTA WATER AGENCY 11 BY MR. NOMELLINI 12 MR. NOMELLINI: Dante John Nomellini for Central Delta 13 Parties. 14 Mr. Robbins, could you refer to Page 1 of the document 15 entitled The San Joaquin River Agreement, which is a part of 16 SJRA-2, I think. Would you tell us for the record who the 17 members are of the San Joaquin River Group Authority? 18 MR. ROBBINS: There are two answers to that question. 19 One of the problems you have is you have a lawyer 20 testifying. 21 The first is the, obviously, members that are filed 22 with the Secretary of State are: Oakdale Irrigation, South 23 San Joaquin Irrigation, Modesto Irrigation, Turlock 24 Irrigation, Merced Irrigation Districts, the San Joaquin 25 River Exchange Contractors Authority, and the Friant Water 1894 01 Users authority. 02 However, in addition to those entities, the members of 03 the Friant Water Users Authority and the members, 04 individually, of the San Joaquin River Exchange Contractors 05 for purposes of this agreement are listed, as well as the 06 City and County of San Francisco. 07 MR. NOMELLINI: So everyone in Paragraph 1.3 on Page 1 08 -- and I should change that, every agency that is listed 09 there falls within the San Joaquin River Group Authority for 10 purpose of this agreement? 11 MR. ROBBINS: For purpose of this agreement, I believe, 12 they are defined as the San Joaquin River Group Parties. 13 MR. NOMELLINI: Okay. Now, my question is, again: Who 14 are the members, if you know, and I am looking at the 15 agreement? It has some semicolons in here, and, Tim, if you 16 know, I am just trying to get on the record who it is that 17 constitutes the membership of the San Joaquin River Group 18 Authority. 19 MR. ROBBINS: It's just the Authority members you are 20 looking at, it's the initial seven that I indicated: the 21 five irrigation districts, plus the Exchange Contractors and 22 the Friant group. 23 MR. NOMELLINI: I am going to read them to you, and you 24 tell me if I am wrong. San Joaquin River Group Authority 25 (SJRGA) for the purpose of the agreement includes Modesto 1895 01 Irrigation District, does it not? 02 MR. ROBBINS: Yes. 03 MR. NOMELLINI: Turlock Irrigation District, does it 04 not? 05 MR. ROBBINS: Yes. 06 MR. NOMELLINI: Merced Irrigation District, does it 07 not? 08 MR. ROBBINS: Yes. 09 MR. NOMELLINI: South San Joaquin Irrigation District, 10 does it not? 11 MR. ROBBINS: Yes. 12 MR. NOMELLINI: Oakdale Irrigation District, does it 13 not? 14 MR. ROBBINS: Yes. 15 MR. NOMELLINI: San Joaquin River Exchange Contractors 16 Water Authority, does it not? 17 MR. ROBBINS: Yes. 18 MR. NOMELLINI: And that includes its member agencies. 19 Central California Irrigation District, does it not? 20 MR. ROBBINS: Yes. 21 MR. NOMELLINI: San Luis Canal Company, does it not? 22 MR. ROBBINS: Yes. 23 MR. NOMELLINI: Firebaugh Canal Water District, does it 24 not? 25 MR. ROBBINS: Yes. 1896 01 MR. NOMELLINI: Columbia Canal Company, does it not? 02 MR. ROBBINS: Yes. 03 MR. NOMELLINI: Friant Water Users Authority on behalf 04 of its member agencies, does it not? 05 MR. ROBBINS: Yes. 06 MR. NOMELLINI: And the City and County of San 07 Francisco? 08 MR. ROBBINS: Mr. Nomellini, you are asking me -- I 09 think you already asked this and I answered it that way, but 10 then you changed and you wanted to know just who the members 11 of the Authority were. 12 MR. NOMELLINI: If you want to correct it, all I'm 13 trying to find out, it is not clear to me whether the 14 semicolon -- 15 MR. ROBBINS: The actual political entities -- 16 THE COURT REPORTER: One person, one person. 17 C.O. CAFFREY: Let's have one person at a time. 18 MR. ROBBINS: The actual political entities which are 19 signed on the certificate of Joint Powers Authority include 20 the five irrigation districts. 21 MR. NOMELLINI: Name them. 22 MR. ROBBINS: Oakdale, South San Joaquin, Modesto, 23 Turlock and Merced. As well as the San Joaquin River 24 Exchange Contractors Authority and not its individual 25 members, and the Friant Water Users Authority and not its 1897 01 individual members. Those are the seven official members of 02 the River Group Authority. 03 MR. NOMELLINI: If you want to check -- this agreement 04 talks about -- 05 MR. O'LAUGHLIN: He is right. 06 MR. NOMELLINI: -- obligations and different terms that 07 apply to this acronym, SJRGA, and I couldn't tell, maybe I 08 should be able to, but I couldn't tell by looking at 09 Paragraph 1.3 exactly who fell within that definition. 10 MR. O'LAUGHLIN: We have a hard time keeping it 11 straight sometime, too. 12 MR. NOMELLINI: It is clearly as you stated then, Mr. 13 Robbins, at the end here, that those are the members of the 14 SRJGA for the purpose of this agreement? 15 MR. ROBBINS: Correct. 16 MR. NOMELLINI: Thank you. 17 Calling your attention to Page 10, Paragraph 7 and the 18 term or terms enforcing the obligations of the USBR and 19 California Department of Water Resources. 20 You see those terms? 21 MR. ROBBINS: Is that phrase that is numbered three in 22 the middle of the program? 23 MR. NOMELLINI: Yes, number three. The parties' 24 obligations are conditioned upon State Water Resource 25 Control Board order and this three is enforcing the 1898 01 obligations. 02 What do you understand to be the terms of an order that 03 would be enforcing the obligations of the Bureau and 04 Department of Water Resources? 05 MR. ROBBINS: This is one of the provisions of the 06 agreement that is present at the request of one of the 07 environmental parties that has not yet executed the 08 document, specifically NHI. They had in mind some of the 09 same issues relating to this proceeding that you have heard 10 elsewhere in that they were not certain without such an 11 order that the Bureau -- that this Board would actually act 12 to enforce current obligations. They wished the agreement 13 to so state. 14 MR. NOMELLINI: So, it is your understanding that the 15 intent was to do something other than simply provide a water 16 rights order that would require meeting the 1995 Water 17 Quality Control Plan? 18 MR. ROBBINS: Frankly, I am not sure what their intent 19 was. 20 MR. NOMELLINI: Whatever it is, your clients agreed to 21 it, correct? 22 MR. ROBBINS: That's true of a lot of this agreement. 23 MR. NOMELLINI: What is your understanding of the 24 obligation of the California Department of Water Resources 25 pursuant to this agreement? 1899 01 MR. ROBBINS: What is my understanding of the 02 Department of Water Resources represented to this hearing? 03 MR. NOMELLINI: Correct. It is listed in your CDWR. 04 MR. ROBBINS: Mr. Steiner can probably answer that 05 better in terms of what we believe the obligations of CDWR 06 are relative to this agreement? 07 MR. NOMELLINI: Correct. 08 MR. STEINER: Most directly may be Page 13, Paragraph 09 10.1.2. and 1.3. And that is the shared responsibility, as 10 the terms has been used around here, to backstop the Delta 11 outflow portion of the 1995 Water Quality Control Plan. And 12 I didn't participate in the export reductions. 13 MR. NOMELLINI: And paid money? 14 MR. STEINER: Yes. I don't know if it was directly 15 CDWR or if it was the State of California. 16 MR. NOMELLINI: Do you know of a plan -- first of all, 17 the agreement contemplates that there would be extra water 18 or additional water provided over and above that provided by 19 the San Joaquin River Group Authority; is that correct? 20 MR. STEINER: Come back to that question. 21 MR. NOMELLINI: The agreement contemplates that there 22 would be water provided by others than the members of the 23 San Joaquin River Group Authority? 24 MR. STEINER: I don't think the agreement speaks to the 25 anticipation of water by others. 1900 01 MR. NOMELLINI: Doesn't the agreement speak to the 02 obligation of the Bureau to meet the 1995 Water Quality 03 Control Plan which includes the Vernalis salinity 04 requirement? 05 MR. STEINER: I guess I must have missed your previous 06 question. I was thinking you are saying "the parties." You 07 limited water from others than the SJRA. Is that your 08 previous question? 09 MR. NOMELLINI: Right. Does the agreement contemplate 10 that water would be provided by parties other than the San 11 Joaquin River Agreement? 12 MR. STEINER: DWR and CVP are other parties by 13 definition, of course. 14 MR. NOMELLINI: Do you know of any plan in connection 15 with this agreement as to where the Bureau intends to get 16 the additional water to meet its obligation under this 17 agreement? 18 MR. STEINER: From within itself or -- 19 MR. NOMELLINI: Do you know of a plan? 20 MR. STEINER: No. 21 MR. NOMELLINI: Calling Mr. Robbins' attention to 22 Paragraph 16.1. Actually, the Section 16. 23 Can you tell me what is intended by this section? 24 MR. ROBBINS: Again, I think Mr. Steiner is more 25 capable of testifying to that. 1901 01 MR. NOMELLINI: Mr. Steiner, you are now the lawyer. 02 MR. STEINER: Maybe more willing. 03 MR. NOMELLINI: If you want to defer to Mr. O'Laughlin. 04 MR. O'LAUGHLIN: I am not under oath. 05 MR. STEINER: Let's cut through that, as I understand 06 it. A lot of this boiled out of the fact of how the 07 construct of the agreement essentially provided that the 08 Bureau of Reclamation would backstop a portion of this 09 agreement. And that it put the duty on them to backstop it. 10 And when you start thinking through it, well, they have 11 various means to potentially backstop this agreement. 12 One of those could be a Bureau facility called Friant. 13 This was to try to specifically preclude the use of Friant 14 for the purposes of this agreement, to backstop the 15 agreement. 16 MR. NOMELLINI: What happens if they obtain the water 17 from Friant, as you have used the term, under this Paragraph 18 16? 19 MR. STEINER: Who is "they"? 20 MR. NOMELLINI: The Bureau, excuse me. 21 MR. STEINER: I assume if they actually did that, that 22 would lead to some kind of default. I don't know. 23 MR. NOMELLINI: Mr. Robbins, you don't know the 24 specific terms that are here? 25 MR. ROBBINS: I think the provisions are here to insure 1902 01 that the intent was clear, that the "backstop" requirements 02 would not include Friant. What voluntarily happens, I am 03 not aware of. 04 MR. NOMELLINI: Calling your attention to Page 4, 05 Paragraph 2.12, and it says: 06 The parties intend that implementation of the 07 VAMP study, not directly cause violations of 08 the Vernalis salinity standard or violate 09 water rights of any downstream water rights 10 holder. (Reading.) 11 Calling your attention to the first part of that, "not 12 directly cause violations of the Vernalis salinity 13 standard," is an indirect cause of an indirect -- 14 indirectly caused -- Strike that. 15 Are the parties under this agreement allowed to 16 indirectly cause violations of the Vernalis salinity 17 standard? 18 MR. STEINER: I wouldn't know what the definition of an 19 "indirect cause" would be. 20 MR. NOMELLINI: Mr. Robbins -- 21 MR. ROBBINS: Maybe you could give us an example of 22 what you think an indirect cause would be. 23 MR. NOMELLINI: If we took power release that would 24 otherwise result in summertime flow and altered those so 25 that those flows would go down to make a pulse flow in April 1903 01 or May that that could indirectly resolve EM violation of 02 the Vernalis salinity standard? 03 MR. ROBBINS: Let me see if I can recharacterize, if I 04 could, what your question is to make sure I understand it. 05 If the question -- first of all, let me just clarify that 06 issue. We have heard a couple things about power releases. 07 I, frankly, on the last points of control on the San Joaquin 08 system, I am unaware of purely power releases that occur. 09 There are some upstream, but the last points of control, 10 those are either flood control or in-stream flows or 11 diversions or in-stream flows or some other. 12 If you're referring to the notion that we would 13 historically have operated in a way that causes facilities 14 to store water during April and May, and release flood 15 controls. 16 Is that maybe what you are talking about during the 17 summertime? 18 MR. NOMELLINI: I picked an example. Maybe I picked a 19 bad example. My concern would be any shift in operations by 20 the member agencies of the San Joaquin River Group Authority 21 that would diminish summer flows in some way pursuant to 22 fulfilling the obligations of this. 23 MR. STEINER: This is one of those, again, that -- 24 there may be times when water is shifted from one season to 25 another. And I don't believe it is these parties' thought 1904 01 they were going to be responsible, that they had that 02 discretion, and they can't do that. 03 MR. NOMELLINI: So, you interpret this as directly or 04 indirectly, is that what you are saying? 05 MR. STEINER: The agreement speaks for itself. You 06 have added the "indirectly" to it. 07 MR. NOMELLINI: So you have explained that -- I don't 08 want to recharacterize your testimony. Are you saying that 09 they cannot indirectly cause violations of the Vernalis 10 salinity standard? 11 MR. STEINER: I am not saying that. 12 MR. ROBBINS: This agreement doesn't do anything that 13 the other alternatives under consideration doesn't do. 14 MR. NOMELLINI: I am asking about the language now. In 15 your understanding -- if you don't have any understanding, 16 that is fine. But does this language in Paragraph 2.1.2 17 allow for indirectly causing violations of the Vernalis 18 salinity standard? 19 MR. ROBBINS: I suppose it would. 20 MR. NOMELLINI: Calling your attention to Paragraph 21 6.6 on Page 9, with regard to an operations plan, assume a 22 hypothetical that one party to the agreement objects to that 23 operation plan. What is your understanding as to the 24 procedure that is kicked in when that happens? 25 MR. ROBBINS: The process, I think, is fairly well set 1905 01 forth in the -- first of all, it's probably helpful to 02 indicate that the agreement doesn't fall apart of its own 03 weight. Initial drafts of the agreement -- this paragraph, 04 for instance, indicated that the parties must agree or that 05 is the end of it. Obviously, that is too weak of a cohesion 06 to hold the agreement together. So we constructed the 07 paragraph and the whole process so that an agency wishing to 08 terminate had to stand up, be identified, take the 09 political, financial, whatever heat necessary to make the 10 appropriate payments in mediation and go through the 11 process. 12 In other words, want to do it bad enough, make it an 13 important enough issue to cause the agreement some trouble. 14 In that regard I would be suggesting that the agreement is 15 held together by a pretty strong -- 16 MR. NOMELLINI: I am not suggesting anything. I am 17 just asking what the -- 18 MR. ROBBINS: The provisions of Paragraph 13.5 are 19 invoked in the event that an agreement, in fact, is not 20 reached by the time as set forth in 6.6. 21 MR. NOMELLINI: Party stands up and says, "I object to 22 the operation plan." What is your understanding as to what 23 happens next, if you know? 24 MR. ROBBINS: I do. 25 MR. NOMELLINI: I gave it a shot. I looked at it. I 1906 01 was just asking -- 02 MR. ROBBINS: What happens at that point is two sets of 03 processes are brought into play. If you look at 13.4 -- 04 MR. NOMELLINI: This has got to be somebody else's 05 question. I'm just happy to be asking it. 06 MR. ROBBINS: We don't need to proceed if you don't -- 07 MR. NOMELLINI: Go ahead. I want to know. 08 MR. ROBBINS: If you look at 13.4, you will notice that 09 if an objection is made, that the process of renegotiation 10 is commenced. That begins at the top of Page 16 with 13.1. 11 You will notice a dispute concerning the operations plan is 12 described in Paragraph 6.6 and 6.7, which is being 13 discussed at 13.2.1.2 is invoked. 14 The process is designed to begin the process of 15 renegotiating terms of the agreement to see that -- to see 16 if the issue can be resolved. In the event that it cannot, 17 or you will notice that in the event that the parties wish 18 to commence the mediation process simultaneously, they may 19 bring the provisions of Paragraph 14 into play, which is, in 20 fact, the mediation process designed to resolve the dispute. 21 If the mediation process is not successful within the 22 90-day period of time, and maybe we can -- there is an issue 23 having to do with resolving issues having to do with meeting 24 the flow targets which have an initial process of we're 25 requesting that the matter be referred for resolution to 1907 01 the Executive Director of the Board within a 48-hour period 02 of time, for obvious reasons. That is an issue that could 03 not wait. 04 That aside, the issue goes through the mediation 05 process. It's a 90-day process. The party that wants to 06 mediate the issue must put up 50 percent of the cost of the 07 mediation, unless that party is an environmental party, in 08 which case they only have to put up $2,000, and the other 09 parties to agreement essentially split the difference, with 10 the state and federal parties picking up half of the 11 remainder and the other signatory parties picking up; the 12 remainder. That is the process. 13 MR. NOMELLINI: That is one leg. The other leg you 14 described partially was the renegotiation leg. What happens 15 if you go down that leg? 16 MR. ROBBINS: Well, hopefully, the matter gets resolved 17 and the agreement moves forward. 18 MR. NOMELLINI: If it doesn't? 19 MR. ROBBINS: It goes through the mediation process. 20 MR. NOMELLINI: It switches over to mediation? 21 MR. ROBBINS: Correct. 22 MR. NOMELLINI: Calling your attention to Page 17, 23 Paragraph 14.1, which I gather is the mediation leg or part 24 of it; is that correct? 25 MR. ROBBINS: Correct. 1908 01 MR. NOMELLINI: It says in the second sentence of 14.1: 02 Parties shall request of the State Board, 03 State Water Resources Control Board, in the 04 order at issue pursuant to ... (Reading.) 05 So you then want the order that we talked about earlier 06 to include the mechanism for the Executive Director to 07 resolve these disputes when we go down that leg, right? 08 MR. ROBBINS: On target flows, that's correct, on 09 issues relating to meeting the target flows. 10 MR. NOMELLINI: Is that different than meeting -- than 11 operations plan? 12 MR. ROBBINS: Yes. 13 MR. NOMELLINI: Is that more limited? 14 MR. ROBBINS: I think so, yes. 15 MR. NOMELLINI: So the mediation leg does not apply to 16 anything, any part of the operations plan except the target 17 flows? 18 MR. ROBBINS: No. The portion of the mediation plan 19 that refers the mediation to the Executive Director of the 20 State Board, that portion of mediation is designed -- you 21 used an example earlier, "What happens if we don't agree on 22 the existing flows, that is an issue that would come right 23 here, real quickly, to be resolved. 24 The other issues, however, go through the regular 25 mediation process, which, I think, has a 90-day period. 1909 01 MR. NOMELLINI: What happens if there is dispute on the 02 issue of the export pumping level? 03 MR. ROBBINS: You mean the operations plan? 04 MR. NOMELLINI: In the operations plan with the export 05 pumping level. 06 MR. ROBBINS: I believe that is a just regular 07 mediation issue. 08 MR. NOMELLINI: That would not get back to the Board? 09 MR. ROBBINS: No. In fact, the agreement is pretty 10 specific. It says that if, in fact, that issue is not 11 resolved by the time the process starts for that pulse flow 12 period, the flows are made available, the export limits do 13 not apply and the export limits revert to whatever other 14 limitations there may be. 15 MR. NOMELLINI: Calling your attention -- 16 C.O. CAFFREY: Excuse me, I must interrupt a moment, 17 Mr. Nomellini. Ms. Forster had a clarifying question on an 18 answer two or three questions ago and is going to have to 19 leave in a few minutes -- 20 MR. NOMELLINI: I yield. 21 C.O. CAFFREY: Please, Ms. Forster, go ahead. 22 MEMBER FORSTER: Mr. Robbins, when you were talking 23 about the cost of mediation, and you were saying that 24 parties would pay a certain amount and then if an 25 environmental group were there they would pay a certain 1910 01 amount. Then you went on and you said a few more things and 02 you said, "And the state and federal agencies would pay 03 some." 04 MR. ROBBINS: Yes, ma'am. Let me reclarify that. I'm 05 sorry to -- I did notice that kind of ran together. 06 The party that elects to mediate, that is to say the 07 party having the difficulty or causing the difficulty, as it 08 where, is required to pay half the cost of mediation. The 09 remaining parties divide the other half, with essentially a 10 quarter, if you will, being paid by the federal, state 11 parties and a quarter being paid by the export interests and 12 the river group interests. 13 That is not true, however, if the mediation request is 14 coming from an environmental party, in which case the 15 environmental party, assuming they're a signatory, pays only 16 $2,000; and the remainder of the mediation costs are paid 17 half by the state or the DOI, resource parties, and half by 18 the export and the River Group Authority. 19 MEMBER FORSTER: When you talk about the "export 20 group," do you mean that the backstop people would have to 21 pay for mitigation if one of the parties of the agreement 22 decided that they didn't want to be a party anymore? 23 MR. ROBBINS: All of the parties have, in fact, agreed 24 to that division as an accommodation for the mediation 25 process to insure that there was some teeth in it. Yes. 1911 01 But that half the costs are borne by the single party 02 wishing to mediate an issue. The other parties divide the 03 remainder of mediation costs. That's right. 04 Each of the parties understands what those costs are. 05 They can be rather significant, having been in several 06 mediation issues recently, including the ag/urban issue, 07 and understand their consequences of that and desire to be 08 bound by that term. 09 MEMBER FORSTER: Thank you. 10 C.O. CAFFREY: Mr. Nomellini, you have three minutes 11 left of the 30. It's a goal. 12 MR. NOMELLINI: That is all I need. I have one more 13 question. 14 C.O. CAFFREY: Good timing, then. Go ahead, sir. 15 MR. NOMELLINI: Calling your attention to, Mr. Robbins 16 or Mr. Steiner, to Paragraph 6.7 on Page 9, and the first 17 sentence which indicates that -- you have that in front of 18 you? 19 MR. STEINER: Yes. 20 MR. NOMELLINI: That if the operations plan is not 21 acceptable to any party, then the export limitations, as 22 contained in Paragraph 6.4, shall not apply during that 23 calendar year. Then it goes on to say that this paragraph, 24 6.7, however, shall not limit or constrain the USBR or the 25 CDWR in the operation of their respective project. 1912 01 Does that mean that the Bureau and DWR can impose the 02 export limitation in any event? 03 MR. STEINER: I don't know if that was in some people's 04 mind. This was just a statement that their operation will 05 go on whatever decisions they put into that, whatever 06 judgments they make in that. 07 MR. ROBBINS: At the risk of -- again, with the 08 disclaimer that I represent a party that is not one of the 09 export parties. I think the issue was that the operators of 10 those projects wanted to insure their discretion was 11 retained and that there was no negative implication, as it 12 were, from that paragraph. 13 MR. NOMELLINI: So the answer would be, "Yes, that they 14 could"? 15 MR. ROBBINS: Assuming they had jurisdiction to do so, 16 otherwise they could still do that, yes. 17 MR. NOMELLINI: That is all I had. 18 C.O. CAFFREY: Does that complete your 19 cross-examination, then, Mr. Nomellini? 20 MR. NOMELLINI: Yes. 21 C.O. CAFFREY: Thank you, sir. 22 Questions from the staff? 23 MS. CAHILL: Could I be added to the list for one 24 question and any follow-up that comes from it? 25 C.O. CAFFREY: Yes. Please come forward. 1913 01 This would be the last questioner, unless somebody else 02 asks. 03 Good afternoon, Ms. Cahill. 04 ---oOo--- 05 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 06 BY THE CITY OF STOCKTON 07 BY MS. CAHILL 08 MS. CAHILL: Good afternoon. Thank you. 09 Virginia Cahill representing the City of Stockton. 10 Mr. Robbins, would anything in the San Joaquin River 11 Agreement preclude the State Water Resources Control Board 12 from processing the City of Stockton's pending water rights 13 application while the San Joaquin River Agreement is in 14 effect? 15 MR. ROBBINS: I am not aware of anything that would 16 prevent processing it, no. 17 MS. CAHILL: Thank you. 18 C.O. CAFFREY: Thank you very much, Ms. Cahill. 19 Let me go off the record for just a moment. 20 (Discussion held off the record.) 21 C.O. CAFFREY: Thank you, everybody. 22 We are back on the record. 23 Let's see, we now go to the staff for 24 cross-examination. Any questions from staff? 25 MS. LEIDIGH: Yes. 1914 01 C.O. CAFFREY: Ms. Leidigh. 02 ---oOo--- 03 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 04 BY STAFF 05 MS. LEIDIGH: I have a few questions. I am going to 06 ask you -- either one of you can answer this, depending on 07 who is more comfortable. The same questions that I asked 08 before of Mr. Ploss. 09 If the Board approves the terms of San Joaquin River 10 Agreement and then after that the Department of Interior 11 gets to the point of taking action once it has its 12 environmental documentation completed and for some reason it 13 does not decide, after that, to sign the San Joaquin River 14 Agreement, what is going to happen to the agreement and how 15 would we proceed from there, in your opinion? 16 MR. ROBBINS: If the question is being addressed to 17 modifications that might come out of NEPA, is that the issue 18 essentially? 19 MS. LEIDIGH: Let's say that -- first, let's take as a 20 first possibility that the Bureau just does not sign the 21 agreement after it goes through the process. 22 MR. ROBBINS: Just simply reneges? 23 MS. LEIDIGH: Yes. 24 MR. ROBBINS: I don't anticipate that as a 25 possibility. Given the other alternatives out there, I 1915 01 don't think you would either. 02 MS. LEIDIGH: So you don't really have an answer to 03 that question? 04 MR. ROBBINS: I think that was an answer. 05 MS. LEIDIGH: What -- 06 C.O. CAFFREY: May not be the one she liked. 07 MS. LEIDIGH: What if there are changes in the 08 agreement as a result of the NEPA process? 09 MR. ROBBINS: I believe that we anticipate -- 10.3 10 talks about implementation matters. Although the document 11 is not actually executed, the spirit of our negotiations is 12 such that 10.3 would, in fact, I believe govern that issue, 13 which means we would meet, confer and attempt to make 14 whatever modifications are required in order to take into 15 account those NEPA requirements. 16 MS. LEIDIGH: The agreement contemplates a water 17 rights or water transfer, maybe not a rights, but of water 18 certainly. When do the members of the San Joaquin River 19 Group intend to file a petition for a water change? 20 MR. ROBBINS: Are we talking about 1707 petitions? 21 MS. LEIDIGH: Yes. 22 MR. ROBBINS: Actually, they would be filed, my guess 23 is, within the week, if they are completed. We had intended 24 to have them filed by this hearing. All things being equal, 25 we expect to do that shortly. 1916 01 MR. O'LAUGHLIN: Just to respond to that, Barbara. I 02 keep telling you, Barbara, that we are going to file them. 03 We will be filing them. We are a little bit unclear as to 04 whether or not there is a need to file them, given the 05 current status of the phasing. So I'm assuming as soon as 06 -- if Phase II completed successfully and we move to Phase 07 II-A, the Water Code 1707 petitions will be filed. If we 08 don't move to Phase II-A and we move to Phase VIII, the 09 Section 1707s will not be filed. 10 MR. ROBBINS: That is correct. We had this discussion 11 last week. Obviously, if we don't get a favorable 12 indication on this phase, there is no need to file. 13 MR. O'LAUGHLIN: That would be -- not to testify. I'm 14 just going to respond to this question. As well as any 15 water right change petitions that would be necessary for 16 water other than the Section 1707. Those change petitions 17 will also be filed after the completion of Phase II and 18 before, if necessary, we go to Phase II-A. 19 MS. LEIDIGH: Thank you. 20 What parties would you expect to have terms and 21 conditions placed in their water right permits for the 22 duration of the VAMP experiment? 23 MR. ROBBINS: I am not sure we expected any parties 24 will have terms and conditions place. I believe Mr. Ploss' 25 answer to that question was an appropriate answer. 1917 01 MS. LEIDIGH: If for some reason the funding for the 02 VAMP experiment is not continuous during the entire time 03 that is planned, what fallback provisions should be included 04 in any water right decision? 05 MR. ROBBINS: The agreement itself speaks to the issue. 06 It is essentially a breach in the event that the payments 07 are not made and the parties have several options. They can 08 continue the agreement. They can take the issue to the 09 mediation process and termination. 10 But if termination occurs, obviously, you have heard 11 the, quote, backstop issues, and that is, I assume, where 12 you will head. 13 MS. LEIDIGH: That is all the questions I have. 14 C.O. CAFFREY: Mr. Howard. 15 MR. HOWARD: Under Section 2.1.1 and Section 10.1.1, 16 there is a statement that we have heard a lot about so far. 17 But it says that the Bureau shall assume responsibility for 18 the San Joaquin River portion of the 1995 Water Quality 19 Control Plan objectives that can be reasonably met through 20 flow measures. 21 My question: Who is responsible under the agreement 22 for determining what can be reasonably met? 23 MR. STEINER: That term "reasonable" is one of those I 24 couldn't give you a definition for reasonable. 25 MR. HOWARD: And you aren't certain who is responsible 1918 01 for determining what is reasonable? 02 MR. STEINER: It will be in the spirit of the situation 03 at the time, I would suspect. 04 MR. HOWARD: Thank you. 05 C.O. CAFFREY: Anything else from the staff? 06 Any questions from the Board Members or Mr. Pettit? 07 Mr. Brown. 08 ---oOo--- 09 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 10 BY BOARD MEMBERS 11 MEMBER BROWN: Mr. Steiner, when you gave your direct 12 on Tuesday, I put something down in quotes, read something 13 like, "I could come up with 100 schemes of making more 14 water." 15 MR. STEINER: Yes, Mr. Brown. Mr. Stubchaer tried to 16 pass that question. I don't know. 17 MEMBER BROWN: I had the discussion with Mr. Stubchaer, 18 but he didn't have it in quotes, but I do. 19 MR. STEINER: I am going to have to review back to what 20 the context was, and I believe the context of my comment was 21 the question directed to me that if we didn't do it, and I 22 will paraphrase, if we didn't do it, the SJRGA may find 23 other ways to do it, and the answer would have to be yes. 24 Your own staff has evaluated different ways of implementing 25 some form of standard at Vernalis, and that is what that 1919 01 reference was. 02 MEMBER BROWN: The schemes of making more water, what 03 did you mean by that? 04 MR. STEINER: The scheme was really how you could 05 allocate the water, to get the water. 06 MEMBER BROWN: Allocate and not make water. 07 MR. STEINER: No. That was not, I don't believe, the 08 context in which I was providing that comment or that 09 response. 10 MEMBER BROWN: That is too bad because I wanted to ask 11 you some -- 12 C.O. CAFFREY: He wants to write a book. 13 MEMBER BROWN: Thank you, Mr. Steiner. 14 C.O. CAFFREY: Anything else, Mr. Brown? 15 MEMBER BROWN: No, sir. 16 C.O. CAFFREY: Anything else from the other Board 17 Members or Mr. Pettit? 18 Let me ask Mr. O'Laughlin if he has -- I guess, 19 technically, he didn't have any direct. He is entitled to 20 redirect, I suppose, since there was cross-examination. 21 Is there any redirect? 22 MR. O'LAUGHLIN: I think if I did redirect, Ken Robbins 23 would shoot me by the time I walked out of the door. 24 We will have no further redirect. 25 C.O. CAFFREY: Thank you, gentlemen. 1920 01 Mr. Sexton. 02 MR. O'LAUGHLIN: We are fine. 03 C.O. CAFFREY: Let's just take a moment now to discuss 04 where we are. 05 That completes -- just a minute, everybody. 06 Mr. Hasencamp. I hope this is important. 07 MR. HASENCAMP: Well, I am just wondering if -- I don't 08 believe Mr. Robbins was identified on the witness list. So 09 I don't know if his testimony is being offered as an expert 10 or not. 11 MR. O'LAUGHLIN: He is being offered as a lay witness. 12 MR. HASENCAMP: Thank you. 13 C.O. CAFFREY: That is in the record for whatever need 14 there might have been. I am not sure. All right. 15 You need a little time there? 16 Let's go off the record for a moment. They need some 17 time, it looks like. 18 (Discussion held off the record.) 19 C.O. CAFFREY: We are back on the record. 20 Mr. O'Laughlin has just stated that they are fine. 21 That completes the presentation of the case in chief, both 22 cases in chief that were in this phase, which now means that 23 on Tuesday when we convene here again we will begin the 24 presentation, or I should say we will continue the 25 presentation of rebuttal evidence, starting with Mr. 1921 01 Herrick. 02 I want to point out another thing that Mr. Stubchaer 03 just verified for me. In our ruling on Mr. O'Laughlin's 04 motion as to procedure, which we released on July 16th, on 05 Page 3, Part D, the ruling, per se, Paragraph 2, we stated 06 that SWRCB will receive oral argument regarding the merits 07 of the SJRA, that that to me is closing argument. And we 08 put that in the ruling because of the strong need on the 09 part or on the strong expression on the part of all to get 10 through Phase II and to not have an extended, protracted 11 period waiting for oral or for written summation, written 12 closing argument because that would mean that it would take 13 the Board even longer to decide whether or not there was 14 going to be a Phase II-A. 15 So, I just want to remind everybody that starting 16 Tuesday morning we will go through the rebuttal evidence and 17 wherever that leads us with cross-examination and redirect 18 and recross, and evidentiary exhibits. And then after that 19 we will move to oral arguments. 20 Any questions at this point or anything that anybody 21 wants to add for the good of the cause or 20 after 4 on the 22 third day of this proceeding this week? 23 Is Mr. O'Laughlin coming forward to address us? 24 MR. O'LAUGHLIN: Chairman Caffrey, two things. One, I 25 would like to find out how many other parties have rebuttal 1922 01 testimony to present. 02 C.O. CAFFREY: That is an excellent question. That 03 would be very helpful. Maybe, by a showing of hands this 04 afternoon, we can get an idea. 05 Let's see. Mr. Herrick. Are there others here now 06 that plan to present rebuttal evidence? By a showing of 07 hands. I can't see part of the room. 08 Looks like, perhaps, it may only be Mr. Herrick. 09 MR. O'LAUGHLIN: I would like to address the second 10 point in regards to oral argument. 11 C.O. CAFFREY: Go ahead. 12 MR. O'LAUGHLIN: There has been a great deal of 13 testimony that has been presented to the State Board here in 14 regards to Phase II. Some of it has been highly technical. 15 I would prefer that we wait for the transcripts to come back 16 because I think it is very important that the testimony be 17 cited to in a direct manner, rather than paraphrasing 18 testimony off notes by different parties. I think that can 19 more fully be briefed to the Board. 20 Given the schedule that is presently out there, I would 21 imagine that Phase III and Phase IV will probably take up 22 most of August, anyway. You have hearing dates set in late 23 September. My expectation would be is that if we could set 24 a briefing schedule for four to five weeks out, that we 25 could get that to you in time. We could then, your staff or 1923 01 you, could contemplate the briefs and, hopefully, issue a 02 decision. Remember, we also scheduled in that -- the Board 03 scheduled in the order on my motion that Phase V would go 04 before Phase II-A. 05 I think between Phases III, IV and V in the hearing 06 dates that have presently been set, that there is probably 07 more than adequate time to brief this in a fashion, get it 08 in front of the Board and have a decision reached and start 09 Phase II-A sometime in October. I am very concerned about 10 this. 11 C.O. CAFFREY: Mr. Stubchaer wants to consult here. 12 Time out. 13 (Discussion held off record.) 14 C.O. CAFFREY: Let's talk about this a little bit. 15 Let's kind of run through a hypothetical schedule. If it 16 takes the Court Reporter three weeks to produce the 17 transcripts, and it takes you two weeks to submit your 18 arguments, then that is five weeks from now. 19 MR. O'LAUGHLIN: Call it August 30th versus September. 20 C.O. CAFFREY: I don't know how long it takes the staff 21 -- and the other thing I want to point out is what we are 22 talking about is a determination by the Board as to whether 23 or not we are going to have a Phase II-A. Once the Board 24 makes that determination, then we have to issue a proper 25 notification to allow everybody to prepare for that case. I 1924 01 assume the people are probably betting on the come and 02 perhaps preparing now in that event. But the Board still 03 has to make that decision. 04 Ms. Leidigh, how much notification requirement -- let's 05 say that the method that the Board chooses, and, frankly, I 06 need to back up from there for a moment and say that my 07 understanding of the procedures, and law for that matter, 08 but the procedure is that the decision as to whether or not 09 to go to a II-A is really not a decision. It is just a 10 question: Does any Board Member have an objection? So it 11 probably is going to be decided by the Co-chairs, correct? 12 MS. LEIDIGH: I would expect it to be decided by the 13 two Hearing Officers. 14 C.O. CAFFREY: So, one of the ways that we can do 15 that, is once we've gotten -- let's say it takes the five 16 weeks and we've gotten all those written arguments, that Mr. 17 Stubchaer and I get together with you and go over 18 everything. Let's say for a moment that we decide to have a 19 II-A. Then the very next time we are in this room, we would 20 probably announce it to everybody. But we can still take a 21 couple, three days after that probably to get a written 22 notice out. 23 How much time do we have to give people? What is the 24 reasonable amount of time from that notice forward before 25 the first proceeding could occur? 1925 01 MS. LEIDIGH: We have been telling people that we would 02 give them three to four weeks to prepare their exhibits for 03 a phase after we send out a notice telling them to prepare 04 it. In other words, we would set a date that was three to 05 four weeks out to get the exhibits in. After that we have 06 been giving parties another three weeks to review one 07 another's exhibits before we commence the phase itself, 08 which means that we are six to seven weeks out once we give 09 notice. 10 C.O. CAFFREY: Based on what you said, I calculated a 11 late, probably very late, October opening of a Phase 12 II-A. I just want to make sure we all understand that. 13 Mr. Stubchaer. 14 C.O. STUBCHAER: No, no. I agree. Mr. Chairman, I just 15 want to mention that several parties during the course of 16 this proceeding have talked about the Board making a 17 determination of equivalency at the end of Phase II. The 18 Board is not going to make a determination of equivalency or 19 nonequivalency. We are going to determine whether or not 20 the San Joaquin River Agreement has enough merit to proceed 21 to Phase II-A. I think that is an important distinction. 22 I think because of the time delay that has just been 23 outlined, I would think that the parties would want to have 24 as much notice as possible to know whether there is going to 25 be a Phase II-A or not so they could do their job 1926 01 preparation. 02 C.O. CAFFREY: I would like to know if there -- 03 Thank you, Mr. Stubchaer. 04 I would like to know here from some of the other 05 parties how they feel about this proposal by Mr. O'Laughlin. 06 First of all, Mr. O'Laughlin, I don't want to put you 07 on the spot. As I iterated through that process that we 08 have to comply with in terms of reasonableness in the amount 09 of time for people to prepare, does synchronize with the 10 timing that you thought we would get started on? 11 MR. O'LAUGHLIN: Ballpark. 12 C.O. CAFFREY: It does? 13 MR. O'LAUGHLIN: Yes. I have to say that it is news to 14 me that the Co-chairs were going to decide the issue or the 15 Chair was going to decide the issue of whether or not to 16 proceed to Phase II. And I was also unaware that the issue 17 of equivalency was no longer on the table and was simply a 18 question that the River Group Agreement merited further 19 consideration. 20 With that understanding, then, I am more than willing 21 to go forward with oral argument whenever Mr. Herrick is 22 done with his rebuttal case. 23 C.O. CAFFREY: Thank you, sir. 24 Ms. Leidigh, do you have any concerns about what Mr. 25 Stubchaer and I have said here in terms of proper procedure 1927 01 and proper following of regulation and law here? 02 MS. LEIDIGH: No. I think this is appropriate. 03 C.O. CAFFREY: Thank you. 04 I would like to hear from any other party that may wish 05 to comment on this. 06 Mr. Jackson, I see you standing. Please come forward. 07 MR. JACKSON: As I now understand it, II-A will be a 08 comparisons of all alternatives; is that right? Just the 09 San Joaquin River alternatives or my understanding is that 10 there are -- I am not sure what Phase IV is anymore. Are 11 there going to be other agreements that will be considered 12 during II-A? 13 C.O. CAFFREY: Phase IV is the -- if that helps you, 14 would it help if I read all of the phases? 15 MR. JACKSON: No. What I am saying is, there are eight 16 alternatives. We have the VAMP. Are the other agreements 17 going to be part of II-A as well? 18 C.O. CAFFREY: Go ahead, Ms. Leidigh, why don't you 19 answer his question. 20 C.O. STUBCHAER: I have -- if you refer to the -- 21 C.O. CAFFREY: Go ahead, Mr. Stubchaer. 22 C.O. STUBCHAER: If you refer to the July 16th letter, 23 which was the ruling on the motion by Mr. O'Laughlin, it 24 explains in there about the finding of the merit for 25 proceeding with Phase II-A as we just discussed. It also 1928 01 says on Page 3 (D) (3) (a): 02 If after hearing the evidence after during 03 Phase II, the Board finds that the San 04 Joaquin River Agreement merits further 05 consideration, we will schedule additional 06 phase, term Phase II-A, in which to receive 07 evidence from parties opposing the San 08 Joaquin River Agreement. In Phase II-A the 09 Board will receive the adversarial evidence 10 and legal argument of parties opposing 11 setting responsibilities as proposed in the 12 San Joaquin River Agreement. (Reading.) 13 And so forth. 14 Does that answer your question? 15 MR. JACKSON: It does. 16 C.O. CAFFREY: Anyone else wish to comment on -- Mr. 17 Nomellini. 18 MR. NOMELLINI: That letter or the ruling on Mr. 19 O'Laughlin's motion indicated that: 20 The Board would consider all the evidence and 21 arguments presented, including the questions 22 submitted by many of the parties as to 23 whether implementing the San Joaquin River 24 Agreement will provide environmental benefits 25 in the Lower San Joaquin River and southern 1929 01 Delta at a level of protection equivalent to 02 the level of protection in 1995 Bay-Delta 03 Plan. (Reading.) 04 Is that not the case? 05 C.O. STUBCHAER: The key word there is "consider." It 06 is not a binding, not a decision. 07 MR. NOMELLINI: So, I gather that there will not be 08 such a determination that you are telling us? 09 C.O. CAFFREY: That's right. We don't envision putting 10 out any kind of, as we call it, an order or resolution in 11 which we would vote. We are going to decide as Hearing 12 Officers as to whether or not, after we look at the record 13 up to this point, up to the point of getting all the closing 14 arguments, as to whether or not it appears appropriate to go 15 forward with the II-A. 16 MR. NOMELLINI: Implicit in that would be the timing of 17 that as well, when it would be set, I guess? 18 C.O. CAFFREY: I am not sure I understand your 19 question. 20 MR. NOMELLINI: As to when you would go forward. 21 C.O. CAFFREY: Absolutely. We will put out a notice, 22 and we will give the time that we were talking about here, 23 several weeks, for people to prepare their presentations for 24 that phase. What we were really discussing here today was 25 the starting time. If you start counting from today, this 1930 01 being today, will we be here to start on II-A or will we be 02 here because IV, V started earlier because we took closing 03 argument orally next week rather than written five weeks 04 from now. 05 That five weeks include transcript. 06 Mr. Birmingham. 07 MR. BIRMINGHAM: Mr. Caffrey, I believe, and I may be 08 mistaken, but I believe that most of the parties who are 09 opposed to San Joaquin River Agreement have already 10 submitted their evidence, and the evidence has been 11 submitted and has been deferred to the anticipated Phase 12 II-A hearing. I wonder if the Board could inquire of the 13 parties if there is a need to establish a schedule to submit 14 further evidence, because, in fact, there may not be. 15 MR. O'LAUGHLIN: Mr. Caffrey, I do have to address 16 that. I have been informed by other parties that there will 17 be further submittals under II-A. So, there would have to 18 be some type of scheduling of additional testimony in a time 19 frame in which to put that in. Because I have been 20 approached by four or five parties already that they will be 21 putting in additional testimony in II-A. So we would need a 22 briefing schedule. 23 C.O. CAFFREY: Nevertheless, then, that is a question 24 which we probably need to deal with again, as Mr. Birmingham 25 suggests, maybe when we've heard all the rebuttal arguments 1931 01 and get to the very, very end of this process. 02 So, the exact -- what I am trying to say is when we 03 hear from some of these parties we can have this kind of 04 discussion again, where we hear from some of these parties 05 and determine if we exactly need the standard amount of time 06 we give in the notice or whether there is some hybrid or 07 modification of that. Your point is well made and well 08 taken, Mr. Birmingham, and, of course, so is yours, Mr. 09 O'Laughlin. We will just have to talk to everybody one more 10 time when we get to that point. 11 Mr. Robbins. 12 MR. ROBBINS: Mr. Caffrey, at the risk of making myself 13 the butt of several jokes here shortly, for procedural 14 purposes, I would like the record to reflect I will resume 15 my position as counsel for Merced Irrigation District. And 16 further representations to the Board will not be under oath 17 except as I might be recalled as a witness. 18 C.O. CAFFREY: Let the record show that clarification. 19 Thank you. 20 Does that mean when we call you again as a witness we 21 will swear you in again? 22 MR. ROBBINS: Yes. 23 C.O. STUBCHAER: Attorneys don't have to tell the 24 truth. 25 C.O. CAFFREY: Mr. Nomellini. 1932 01 MR. NOMELLINI: I was just trying to leave. 02 C.O. CAFFREY: Did somebody else have a question? 03 Yes, Mr. Sandino. 04 MR. SANDINO: David Sandino for the Department of Water 05 Resources. 06 Mr. Chairman, we are trying to figure out when Phase 07 III is going to start for the Suisun Marsh. Do you expect 08 that to start Tuesday afternoon or, perhaps, on Wednesday? 09 C.O. CAFFREY: That is a good question. If you asked 10 before, we thought it was going to start Tuesday. We are 11 going to have -- it's hard to imagine it starting on 12 Tuesday. 13 Does anybody disagree with that? 14 Let's say we start Tuesday. We hear Mr. Herrick's 15 rebuttal case, and then we go to oral closing arguments. 16 Do we have a time limit on those? 17 C.O. STUBCHAER: Twenty minutes. 18 C.O. CAFFREY: Twenty-minute time limit. What you are 19 trying to find out is whether you should have your witnesses 20 here on Tuesday? 21 MR. SANDINO: Exactly. 22 C.O. CAFFREY: Mr. O'Laughlin, you seem to have a 23 suggestion. 24 MR. O'LAUGHLIN: I don't think he should. We probably 25 won't get started in time, I don't think. 1933 01 C.O. CAFFREY: You think it is best to start Wednesday 02 on Phase III? 03 MR. O'LAUGHLIN: Yes. 04 C.O. CAFFREY: Anybody disagree with that? 05 That is a little more helpful managerially, so the 06 witnesses don't sit around. 07 Let's not start Phase III before Wednesday morning. 08 MR. O'LAUGHLIN: I have one further question that was 09 brought up. I noticed that there was some discussion up at 10 the Board with your counsel. What is the time limitation 11 for closing argument? 12 C.O. CAFFREY: Mr. Stubchaer just said -- 13 C.O. STUBCHAER: I thought it was 20 minutes. We will 14 look and see. 15 C.O. CAFFREY: You have the better of us. We don't 16 know at the moment. 17 MS. LEIDIGH: I believe that we do not publish a time 18 limit, but that the Board, nevertheless, has the authority 19 to set a time limit on closing arguments. 20 MR. O'LAUGHLIN: I would agree with that statement. 21 C.O. CAFFREY: Do you have a suggestion as to a 22 reasonable length of time? 23 MR. O'LAUGHLIN: You should not ask me that question. 24 C.O. CAFFREY: Does a half an hour seem unreasonable to 25 anybody, half hour per party? Is that what you had 1934 01 suggested earlier, Mr. Stubchaer? 02 C.O. STUBCHAER: I said -- that is fine. I said 20 03 minutes. 04 MR. O'LAUGHLIN: I would go with the shorter amount. 05 Because 20 minutes times the amount of parties that have 06 participated is a lot of time. 07 C.O. CAFFREY: There is a lot of parties. Let's make 08 it 20 minutes as Mr. Stubchaer originally suggested. 09 MR. O'LAUGHLIN: Thank you. 10 C.O. CAFFREY: Anything else housekeepingwise? 11 We will be back here Tuesday morning at 9:00 a.m. 12 Thank you very much. 13 (Hearing adjourned at 4:40 p.m.) 14 15 16 17 18 19 20 21 22 23 24 25 1935 01 REPORTER'S CERTIFICATE 02 03 04 STATE OF CALIFORNIA ) 04 ) ss. 05 COUNTY OF SACRAMENTO ) 05 06 06 07 08 I, ESTHER F. WIATRE, certify that I was the 09 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 1709 through 14 1934 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 11th day of August 1998. 19 20 21 22 22 23 ______________________________ 23 ESTHER F. WIATRE 24 CSR NO. 1564 24 25