STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT THE BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, AUGUST 4, 1998 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JOHN CAFFREY, CO-HEARING OFFICER JAMES STUBCHAER, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 JOHN W. BROWN 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer 9 VICTORIA A. WHITNEY - Senior Engineer 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel 12 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1937 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 55 Shaver Street, Suite 330 21 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 1201 California Street, Suite 1303 24 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 1938 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1939 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 1940 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 1941 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 1942 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 1943 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 1944 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 1945 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 1946 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1947 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 1948 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 1949 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: CHARLES H. WILLARD 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 1950 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 1952 6 AFTERNOON SESSION 2063 7 END OF PROCEEDINGS 2127 8 REBUTTAL TESTIMONY SOUTH DELTA WATER AGENCY: 9 ALEX HILDEBRAND 1953 10 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY: 11 SAN LUIS DELTA-MENDOTA WATER AUTHORITY 1976 12 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS 1998 BY STAFF 2014 13 BY THE BOARD 2016 14 CLOSING STATEMENT: 15 SAN JOAQUIN RIVER GROUP AUTHORITY 2031 2123 DEPARTMENT OF FISH AND GAME 2045 16 U.S. DEPARTMENT OF THE INTERIOR 2047 2122 STATE WATER CONTRACTORS 2053 2120 17 SAN LUIS DELTA-MENDOTA WATER AUTHORITY 2054 2115 ENVIRONMENTAL DEFENSE FUND 2056 2114 18 DEPARTMENT OF WATER RESOURCES 2063 PORGANS AND ASSOCIATES 2068 19 SAVE THE BAY ASSOCIATION 2075 SOUTH DELTA PARTIES 2082 2112 20 SOUTH DELTA WATER AGENCY 2092 2110 CONTRA COSTA WATER DISTRICT 2104 21 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 1951 1 TUESDAY, AUGUST 4, 1998, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: Good morning. And welcome back to the 5 Delta Water Rights Hearing, Phase II. This morning we are 6 going to continue with rebuttal evidence. And I just 7 wanted to be sure that we still are on the same course as 8 we were when we adjourned last Thursday. 9 At that time, we asked by a showing of hands how 10 many parties wished to present rebuttal evidence. And I 11 believe, correct me if I'm wrong, I know you will, I 12 believe Mr. Herrick was the only one that was going to do 13 that with Mr. Hildebrand. So seeing and hearing no 14 objection to the contrary, then, that's how we will proceed 15 today. And, then, once we complete the rebuttal case, so 16 to speak, have Mr. Herrick go through the 17 cross-examination, if there is any, we will then move to 18 the closing arguments which we discussed on Thursday and 19 which will have a 20-minute limit per argument. 20 So anybody remember anything to the contrary of 21 that? All right. Then, before we get started let me just 22 say that we have asked that the temperature be monitored 23 and reduced in this room. And I apologize when we came in 24 it felt like it was ten degrees warmer in here than it was 25 in the cafeteria. I hope there isn't some kind of message CAPITOL REPORTERS (916) 923-5447 1952 1 in that. We're working on it and hopefully it will come 2 down a bit. 3 With that, Mr. Herrick, do you wish to continue 4 with your rebuttal evidence? 5 MR. HERRICK: Thank you. 6 C.O. CAFFREY: Good morning, sir. Welcome. 7 ---oOo--- 8 REBUTTAL EVIDENCE BY SOUTH DELTA WATER AGENCY 9 OF ALEX HILDEBRAND 10 BY JOHN HERRICK 11 MR. HERRICK: John Herrick for the South Delta Water 12 Agency. I'm going to call Alex Hildebrand as a rebuttal 13 case witness. Mr. Hildebrand's qualifications have already 14 been submitted as a South Delta Exhibit. 15 C.O. CAFFREY: And let the record show that 16 Mr. Hildebrand, of course, has been sworn in. While I'm 17 interrupting you, let me also add that the purpose of 18 rebuttal evidence is to present argument against what may 19 have been presented in other cases in chief. It is also an 20 opportunity to present, shall we say, new exhibits or new 21 evidence that came out for the first time in such 22 presentation of other cases in chief or in 23 cross-examination. 24 It is not the opportunity to present new evidence 25 that should have been presented in your case in chief in CAPITOL REPORTERS (916) 923-5447 1953 1 the first place, ladies and gentlemen. So please be 2 mindful of that. If we stay on that straight and narrow, 3 we'll have less objections and less interruptions. And, 4 who knows, we may even complete this Phase II this week 5 sooner then. So with great hope, let us proceed with all 6 dispatch. 7 Go ahead, Mr. Herrick. 8 MR. HERRICK: Thank you, Mr. Chairman, I know we'll 9 abide by those admonitions. Mr. Hildebrand, did you hear 10 the testimony of Mr. Burke given last week? 11 MR. HILDEBRAND: Yes, I did. 12 MR. HERRICK: And do you understand his testimony to 13 be describing various coordination of operations, I guess, 14 impliedly that will result or continue under the VAMP 15 program; is that correct? 16 MR. HILDEBRAND: That's correct. 17 MR. HERRICK: Would you explain your involvement, if 18 any, in those coordinated operations and whether or not 19 they are related to the San Joaquin Agreement's operations. 20 MR. HILDEBRAND: Yes. Since Mr. Burke was testifying 21 on behalf of the SJRA I think there was an implication that 22 the things he described were the result of, or somehow 23 would be provided by the SJRA and not in their absence. I 24 don't believe that is the case. He discussed high-flow 25 management. He discussed low-flow management. He CAPITOL REPORTERS (916) 923-5447 1954 1 discussed the coordination of the management of the 2 Vernalis flows with the installation of the barriers. 3 So let's take those one at a time. First on the 4 high flows, I happen, also, to be president of the San 5 Joaquin River Flood Control Association. That association 6 for at least three years now has been hosting meetings with 7 the Bureau, the Department of Water Resources, the Corps of 8 Engineers, the operators of the various tributary dams to 9 try to improve the forecasting and management of high 10 flows. I think we made a lot of progress on that, but I 11 don't think it has anything to do with the SJRA. And it's 12 a process that is still going and would continue to go on 13 in the absence of the SJRA. 14 Turning next to the barriers, the SJRA seems to be 15 wanting to take credit for the installation of the head of 16 Old River barrier. But the installation of that barrier 17 and the three tidal barriers has -- got started as a result 18 of a lawsuit that the South Delta Water Agency brought 19 against the State and Federal Governments for damaging our 20 water levels and water supply and water quality in the 21 South Delta channels. It's an ongoing thing. We have a 22 temporary barrier program. We have the ISDP with its 23 proposal for permanent installation of the other barriers, 24 three tidal barriers. 25 That process is going on and so far has been CAPITOL REPORTERS (916) 923-5447 1955 1 limited only by the ability to get the permits we need. 2 And so whether those barriers are installed, really has 3 nothing to do with the SJRA. They will be installed or not 4 installed on the basis of these other programs regardless 5 of what the SJRA does. And SJRA really doesn't have any 6 influence over that. 7 Now, we turn to the management of low flows. We 8 need to make a distinction between the management of the 9 available water supply for fish flows and the manner in 10 which those flows are provided. So those are two different 11 issues. With regard to the management of the available 12 flows, this has been going on, also, for a long time. 13 Bill Loudermilk from the Department of Fish and Game has 14 been the principal coordinator of that issue. He's been 15 provided year after year with information on the 16 availability of water for protection of fish. And, then, 17 coordination then with -- in consultation with Fish and 18 Wildlife and other parties, he has decided how those 19 available flows could best be utilized. 20 Some of them are utilized during the pulse-flow 21 period. Some are not. Sometimes there's been experiments 22 proposed to have short pulses instead of long pulses, that 23 sort of thing. If the water supply is available you can do 24 whatever you want in the management of it. There's been a 25 lot of sophistication developed in recent years by a lot of CAPITOL REPORTERS (916) 923-5447 1956 1 very able people on how to best utilize an available flow. 2 But, I submit, that that could go on and probably would go 3 on regardless of the SJRA as long as a flow is available. 4 That brings us, then, to the question of the 5 availability of flow. Now, there are a number of ways in 6 which the Vernalis flow could be provided, whatever flow is 7 decided by this Board. And Steiner acknowledged that the 8 SJRG proposal was only one way in which that could be done. 9 And SJRA, apparently, wants the adaptive management of the 10 flows made available, but does not want the adaptive 11 management of the provision of that flow so that we can't 12 look at other ways in which it could be provided. 13 The -- 14 MR. BIRMINGHAM: Excuse me, Mr. Chairman? 15 C.O. CAFFREY: Mr. Birmingham? 16 MR. HILDEBRAND: Took you a long time to get up. 17 MR. BIRMINGHAM: Sure did. 18 C.O. CAFFREY: Now, Mr. Hildebrand, remember what we 19 said about outbursts. 20 MR. BIRMINGHAM: I'm going to interpose an objection 21 at this point. Mr. Hildebrand is providing a narrative. 22 And, although, it's appropriate to summarize direct 23 testimony that's submitted in writing, in this situation 24 there was no direct testimony that was submitted in 25 writing. And I wonder if Mr. Herrick could be directed to CAPITOL REPORTERS (916) 923-5447 1957 1 conduct a cross-examination of Dr. Hildebrand -- excuse me, 2 Mr. Hildebrand as opposed to having him provide a 3 narrative. 4 C.O. CAFFREY: Well, I think you raise an interesting 5 question, Mr. Birmingham, although I do not have any 6 objection to hearing a narrative as long as it is clear 7 what it is rebutting and -- Mr. Birmingham? 8 MR. BIRMINGHAM: I think in this circumstance 9 providing a narrative is fraught with some dangers, because 10 if we don't know what the questions are that 11 Mr. Hildebrand is about to answer, we have no way of 12 gauging whether or not the information which is about to be 13 presented to the Board is relevant, is material, whether 14 it's based on hearsay, or whether there is a foundation for 15 it. 16 And that's the reason that, typically, in a court 17 questions that call for a narrative are objectionable. And 18 I think we should be afforded the same opportunity to 19 consider the questions and the potential answers for 20 possible objections before the information is provided to 21 the Board in the form of narrative testimony. 22 C.O. CAFFREY: Okay, Mr. Birmingham. Let me go to 23 Ms. Leidigh to see if there is a regulation regarding this 24 kind of situation. Go ahead, Ms. Leidigh. 25 MS. LEIDIGH: Yes, I think as I pointed out before, CAPITOL REPORTERS (916) 923-5447 1958 1 the Board's proceedings are not subject to the Technical 2 Rules of Evidence. And what Mr. Birmingham is talking 3 about is one of those Technical Rules of Evidence that goes 4 on in court. 5 There is no prohibition under the Board's rules or 6 under the Administrative Procedures Act for testifying in 7 the narrative manner without going through the 8 question/answer format that you see in court. I think 9 there is, nevertheless, an opportunity for parties like, 10 Mr. Birmingham, to object to testimony as it is coming in. 11 C.O. CAFFREY: Which he just did, by the way. 12 MS. LEIDIGH: Which he just did. By listening to the 13 testimony as it appears and asking to have it stricken if 14 it, indeed, is not an appropriate testimony for rebuttal. 15 So far as written testimony is concerned, there is no 16 requirement for written testimony in a rebuttal case. So I 17 don't, personally, see anything wrong with the way that 18 Mr. Hildebrand is testifying. 19 C.O. CAFFREY: All right. Thank you, Ms. Leidigh. 20 MEMBER BROWN: Mr. Chairman? 21 C.O. CAFFREY: Mr. Brown and then Mr. Birmingham. 22 MEMBER BROWN: I was impressed with Mr. Birmingham's 23 reasoning. And I think it would be helpful if maybe 24 Mr. Herrick could go ahead and ask Mr. Hildebrand some more 25 questions to assist in the narrative. I certainly want to CAPITOL REPORTERS (916) 923-5447 1959 1 hear what Mr. Hildebrand has to say. I don't want to 2 stifle that either. I think it could be helpful if there 3 could be more questions along the way to provide a little 4 bit more foundation at least for my understanding. 5 C.O. CAFFREY: Thank you, Mr. Brown. Mr. Birmingham, 6 did you have anything else, sir? 7 MR. BIRMINGHAM: The only other comment that I was 8 going to make was Ms. Leidigh's remarks is if there is 9 going to be narrative testimony and we will object as the 10 testimony is being provided, that will result in endless 11 interruptions as we just had. And, in fact, may be 12 counterproductive in terms of trying to expedite the 13 proceeding. 14 C.O. CAFFREY: Well, thank you, Mr. Birmingham. 15 Here's what I'm going to do, and I think to some degree 16 Mr. Brown read my mind. I'm not going to require, because 17 of the way our regulations are and because we are different 18 than what proceeds in a courtroom, I'm going to ask 19 Mr. Herrick if he could, at least, intersperse some subject 20 areas throughout the course of Mr. Hildebrand's rebuttal 21 testimony, so that it will help the Board as well as the 22 other parties to have some recognition of where we are, 23 where we're going. 24 Also, if you wish, it would be helpful to ask an 25 occasional question. But I think we would at least like to CAPITOL REPORTERS (916) 923-5447 1960 1 see the designation of the subject areas, or maybe an 2 interspersion on your part, Mr. Herrick, as to what area of 3 previous testimony we're rebutting now. And that will give 4 us some guidance. Thank you, sir. Please proceed along 5 those lines. 6 MR. HERRICK: Thank you, Mr. Chairman. I appreciate 7 the objections and the reasoning. I think Mr. Hildebrand's 8 narrative has very closely tied itself into previous 9 testimony. And we need not have endless interruptions; all 10 we need to have is cogent cross-examination when the time 11 comes if somebody doesn't understand it. But I will 12 certainly abide by your preference and ask more questions 13 of my witness. 14 C.O. CAFFREY: Thank you, Mr. Herrick. 15 MR. HERRICK: Mr. Hildebrand, have you reviewed the 16 written testimony of Mr. Steiner? 17 MR. HILDEBRAND: Yes, I have. 18 MR. HERRICK: And were you also present during his 19 oral testimony? 20 MR. HILDEBRAND: Yes, I was. 21 MR. HERRICK: Do you recall Mr. Steiner's explanation 22 of the assumptions he put into his modeling calculations? 23 MR. HILDEBRAND: Yes. 24 MR. HERRICK: And could you briefly tell us what you 25 recall those assumptions were as to the source of water for CAPITOL REPORTERS (916) 923-5447 1961 1 the SJRA flows? 2 MR. HILDEBRAND: I don't think he was very specific 3 as to the source of water for the SJRA flows. It wasn't 4 clear whether the water would be provided by taking water 5 out of storage which would, then, be refilled by other than 6 flood flows. It wasn't clear that it would be the result 7 of any reduction in consumptive use by the sellers. In 8 fact, it seemed to be clearly indicated that it was not. 9 It -- I guess that answers the question. 10 MR. HERRICK: Mr. Hildebrand, do you recall 11 that Mr. Steiner's modeling results produced numbers with 12 regards to affects on salinity or TDS in the river? 13 MR. HILDEBRAND: Yes, he did. And he acknowledged 14 that he -- I don't think he used these precise words, but 15 as I understood it he was using figures for the salinity at 16 Vernalis. They're based on flow salinity curves that are 17 altered if you change the source of the water. 18 So that if, for example, the water is supplied by 19 the Exchange Contractors, and that's basically DMC water 20 it's going to put more salt load in the river with a given 21 amount of flow than if it came out of Merced, for example. 22 This would then change the amount of delusion water needed 23 at Vernalis in order to meet the salinity standard. But I 24 believe he acknowledged, if I understood him correctly, 25 that the manner of his modeling did not pick that up. CAPITOL REPORTERS (916) 923-5447 1962 1 MR. HERRICK: So is it your testimony today that 2 depending where the water originates it affects the 3 calculation on TDS? 4 MR. HILDEBRAND: Oh, very definitely. 5 MR. HERRICK: And is that because there are different 6 TDS's of proposed sources of the water for the SJRA flows? 7 MR. HILDEBRAND: Yes, as I just explained it. 8 MR. HERRICK: And, Mr. Hildebrand, does it matter how 9 the water is provided in determining the TDS in the river 10 resulting from the provision of the SJRA flows? 11 MR. HILDEBRAND: Yes. If you provide it with higher 12 salinity water, such as water that originates from the DMC, 13 it makes differences compared to getting the water out of 14 the tributary. 15 MR. HERRICK: Does the determination as to where the 16 water originates affect salinity levels at places other 17 than Vernalis? 18 MR. HILDEBRAND: Yes, very much so. In fact, as we 19 discussed before, one of the problems in the river is a 20 very high salinity and also at times high selenium 21 concentration in the reach from Merced down to the Tuolumne 22 prior to a delusion that comes out of the Tuolumne. And 23 the SJRA testimony indicated it did not address the 24 question of the quality conditions in that reach of river. 25 MR. HERRICK: Mr. Hildebrand, have you -- have you CAPITOL REPORTERS (916) 923-5447 1963 1 done the modeling itself that Mr. Steiner himself produced? 2 MR. HILDEBRAND: No need to. Mr. Steiner is a very 3 competent modeler. So the question we have to look at is 4 the inputs to his model rather than if he did the modeling 5 correctly. 6 MR. HERRICK: And do you believe his inputs with 7 regards to the affects of salinity levels in the San 8 Joaquin River would be different if you changed the 9 assumptions that we just talked about? 10 MR. HILDEBRAND: Yes. 11 MR. HERRICK: But you haven't done those 12 calculations, have you? 13 MR. HILDEBRAND: No. 14 MR. HERRICK: Mr. Hildebrand, do you recall that 15 Mr. Steiner's testimony showed -- there were a couple of 16 bar graphs that were put up on the overhead. Do you recall 17 that those showed that there was an increase in the San 18 Joaquin River under the SJRA as compared with what was 19 called a "current mode of operation"? 20 MR. HILDEBRAND: I recall that. 21 MR. HERRICK: Do you understand what activities 22 may -- or would have to occur in order for there to be an 23 increase in outflow to the river? 24 MR. HILDEBRAND: I don't think Mr. Steiner ever 25 explained how that could be the case. CAPITOL REPORTERS (916) 923-5447 1964 1 MR. HERRICK: Do you have an understanding of how 2 that could be the case? 3 MR. HILDEBRAND: It could be the case if you supplied 4 the water from some other source rather than the 5 tributaries. And it could be the case if you decreased the 6 consumptive use of water in the tributaries, but there's no 7 indication that there was any intent to do either of those. 8 MR. HERRICK: Explain how a change in consumptive use 9 would affect the total outflow of the system. 10 MR. HILDEBRAND: Well, if you consume less water, 11 then there's more water left in the river system and then 12 it flows on out. Whereas if you don't produce the 13 consumption, then it takes some kind of magic to increase 14 the flow. 15 MR. HERRICK: Well, do you think that Mr. Steiner's 16 conclusions then about increased outflow were incorrect? 17 MR. HILDEBRAND: Yes, I do. 18 MEMBER BROWN: What was that? 19 C.O. CAFFREY: Mr. Brown has a question. I don't 20 know if you heard. 21 MR. HERRICK: I'll just repeat the question as best I 22 can remember. Mr. Hildebrand, do you have any conclusion 23 as to whether Mr. Steiner's conclusions as to -- his data 24 as to an increased outflow is correct or not? 25 MR. HILDEBRAND: I believe they're incorrect at least CAPITOL REPORTERS (916) 923-5447 1965 1 if you look at it over time. It may displace the flow in 2 time, so that at one time you may have an increased flow, 3 but at some other time it will then be reduced. 4 MR. HERRICK: Part of the testimony brought forth, 5 again, covered the Interim Operations Plan of New Melones. 6 Do you recall that? 7 MR. HILDEBRAND: Yes. 8 MR. HERRICK: And do you recall that, this is a 9 general number, that the Interim Operations Plan's modeling 10 indicated water quality violations in 40 percent of year 11 types? 12 MR. HILDEBRAND: Yes. And that's without the 13 purchases that are planned, without the SJRA purchases 14 which would, then, exacerbate that because it would 15 increase the flow down the river during the fish flow when 16 we have no salinity problem and decrease the flow at other 17 times of the year when we do have a salinity problem. 18 MR. HERRICK: Would that be the case if provision of 19 flows under SJRA were a result of a decrease in consumptive 20 use? 21 MR. HILDEBRAND: No. 22 MR. HERRICK: Do you understand the SJRA to require 23 the decrease in consumptive use? 24 MR. HILDEBRAND: No. 25 MR. HERRICK: Do you believe that a modeler, an CAPITOL REPORTERS (916) 923-5447 1966 1 engineer, or hydrologist can come to any conclusion with 2 regard to the affect on San Joaquin River salinity without 3 knowing the -- how the method that the San Joaquin River 4 flows are produced? 5 MR. HILDEBRAND: No. 6 MR. HERRICK: I have one overhead, if the Board would 7 like to indulge me for a moment. 8 C.O. CAFFREY: Okay. Is this an existing exhibit, or 9 a new exhibit, or what is it, Mr. Herrick? 10 MR. HERRICK: This is not an exhibit. I will mark it 11 at the Board's pleasure. What it is is a graphic 12 representation of a calculation. So it's just a -- it's 13 the handwritten memorialization of what Mr. -- what 14 Mr. Hildebrand is going to testify to. I can, certainly, 15 mark it as the next exhibit in order. And I'd like to 16 explain it first before anybody wants to object. 17 C.O. CAFFREY: All right. 18 MR. BIRMINGHAM: I have no objection, but I think for 19 purposes of maintaining the record it would be appropriate 20 to mark it as next in order. 21 C.O. CAFFREY: I agree, Mr. Birmingham. Do you want 22 to do that now, Ms. Leidigh? 23 MS. LEIDIGH: Yes. I believe it would be Exhibit 38. 24 C.O. CAFFREY: This will be Exhibit 38. 25 MR. HERRICK: Without messing things up, can I change CAPITOL REPORTERS (916) 923-5447 1967 1 that number, because the Phase V exhibits at my office 2 right now have taken up some of the numbers. 3 MS. WHITNEY: Sure. 4 MR. HERRICK: Could we just make it, like, 50, that 5 probably wouldn't be too far out of order. 6 MS. LEIDIGH: Yeah. 7 C.O. CAFFREY: All right, it will be Exhibit 50. 8 MR. HERRICK: I will, certainly, make copies for 9 everybody. I don't have them right now. I can give Staff 10 the original now with the SDWA 50 marked at the bottom. 11 C.O. CAFFREY: All right. Thank you, Mr. Herrick. 12 Please, proceed. 13 MR. HERRICK: Thank you. Mr. Hildebrand, do you 14 recall Mr. Steiner's testimony with regards to a yearly 15 purchase of 15,000 acre-feet from Oakdale Irrigation 16 District? 17 MR. HILDEBRAND: Yes. 18 MR. HERRICK: And do you recall that that 15,000 19 acre-feet was reduced from the OID diversions and put back 20 into the storage, to paraphrase, put back into the storage 21 so it's part of the total inflow storage of the New Melones 22 Project? 23 MR. HILDEBRAND: Yes. 24 MR. HERRICK: Mr. Hildebrand, did you analyze -- 25 excuse me. Do you also recall Mr. Steiner saying that CAPITOL REPORTERS (916) 923-5447 1968 1 based on this and a few other things, that based on this 2 that that helped increase the amount of water quality water 3 available in New Melones each year? 4 MR. HILDEBRAND: Yes, but he did not quantify that. 5 MR. HERRICK: Do you recall -- well, Mr. Hildebrand, 6 could you explain SDWA 50 which we have up on the overhead 7 right now? 8 MR. HILDEBRAND: Well, if you consider the water use 9 efficiency when the water is applied on an irrigation 10 district for agricultural use, the return flows even in the 11 areas where there's a great shortage of water, rarely less 12 than 30 percent and it can range all the way up to 50 13 percent, where water is plentiful. 14 But if we assume that there was a 30-percent 15 return flow from the application of the 15,000 acre-feet to 16 the agricultural uses, then, that would generate about 17 5,000 acre-feet of return flow. 18 MR. HERRICK: And, Mr. Hildebrand, let me interrupt 19 you. The first portion of the overhead, SDWA 50 shows a 20 calculation determining 30 percent of 15,000 acre-feet 21 yielding 5,000 acre-feet; is that correct? 22 MR. HILDEBRAND: That's correct. 23 MR. HERRICK: Now, if Oakdale Irrigation District did 24 not sell that water but diverted it for use, as which was 25 the testimony by Mr. Steiner, is it your testimony that CAPITOL REPORTERS (916) 923-5447 1969 1 that use of water would generate approximately 5,000 2 acre-feet? 3 MR. HILDEBRAND: I think at least that much. 4 MR. HERRICK: And if that water goes into the 5 Stanislaus River as return flow it, then, naturally becomes 6 part of the flow of the San Joaquin River, correct? 7 MR. HILDEBRAND: That's true regardless of whether it 8 comes down the Stanislaus or if it's diverted over into the 9 Tuolumne watershed. 10 MR. HERRICK: And, Mr. Hildebrand, what's your 11 understanding of that, how that return flow water 12 eventually added to the San Joaquin affects TDS at 13 Vernalis? 14 MR. HILDEBRAND: If the water is left in the dam, 15 then in the subsequent year the amount of that water that 16 would be allocated to water quality is limited by the 17 Interim Plan of the Bureau, which would be that you only 18 would give a very small portion of it, as indicated on this 19 analysis. As you can read there, it turns out that you 20 would only get 600 acre-feet more water for water quality 21 in the following year as compared to the 5,000 acre-feet 22 that you get if it's utilized. 23 MR. HERRICK: Now, let me march through that, 24 Mr. Hildebrand. At the bottom of SDWA 50 is a Table 2. 25 And that table is directly out of the New Melones's Interim CAPITOL REPORTERS (916) 923-5447 1970 1 Operations Plan; is that correct? 2 MR. HILDEBRAND: That's correct. 3 MR. HERRICK: And that table shows us depending on 4 New Melones storage and inflow a certain amount of water is 5 budgeted for fisheries, water quality, Bay-Delta, or 6 contractors; is that correct? 7 MR. HILDEBRAND: That's right. And it's the use of 8 that table that leads to the remark that I just made that 9 only 600 of that would end up as being available for water 10 quality as compared to the 5,000 if it was utilized. 11 MR. HERRICK: Mr. Hildebrand, for this example, which 12 is the middle of this exhibit, your calculation there of 13 80,000 acre-feet over 2 million acre-feet -- 14 C.O. CAFFREY: Is there an objection? Some people 15 are standing. 16 UNIDENTIFIED MAN: Mr. Chairman, I wonder if we could 17 slide the overhead up. 18 C.O. CAFFREY: Oh, sorry. Could we move that up so 19 folks can see it. 20 MR. HERRICK: Certainly. 21 MEMBER BROWN: Take us through that calculation. 22 C.O. CAFFREY: A little bit more. We don't need the 23 top. Does that help, can everybody see it? All right. 24 Thank you. 25 MR. HERRICK: Mr. Hildebrand, let's just go through CAPITOL REPORTERS (916) 923-5447 1971 1 Table 2 real briefly. There are incremental amounts of 2 storage plus inflow. And for your example you've chosen a 3 two-million acre-feet storage plus inflow; is that correct? 4 MR. HILDEBRAND: That's correct. 5 MR. HERRICK: And two million happens to be the 6 breakoff for the first two budgeting divisions. But if you 7 take two million acre-feet on the second break, is it 8 correct that that results in 80,000 acre-feet of water 9 quality water, correct? 10 MR. HILDEBRAND: That's correct. 11 MR. HERRICK: And the 80,000 acre-feet is the first 12 part of your calculation there at the top of your overhead 13 right now? 14 MR. HILDEBRAND: That's right. 15 MR. HERRICK: And so this calculation is attempting 16 to show the proportional relationship between the 80,000 17 acre-feet budgeted for water quality and two-million 18 acre-feet of storage plus inflow in New Melones? 19 MR. HILDEBRAND: That's correct. 20 MR. HERRICK: And the second half of your calculation 21 asks to solve for X, which is how much is budgeted for 22 water quality if you add 15,000 acre-feet to two million 23 acre-feet; is that correct? 24 MR. HILDEBRAND: That's right. 25 MR. HERRICK: And when you go through that CAPITOL REPORTERS (916) 923-5447 1972 1 calculation, what do you solve X to be, Mr. Hildebrand? 2 MR. HILDEBRAND: X becomes 80,600. So you've only 3 added 600 acre-feet to what would have been provided to 4 water quality in the event that the water is left in the 5 dam as compared to the 5,000 you get if it's utilized for 6 agricultural. 7 MR. HERRICK: Now, Mr. Hildebrand, of course, if you 8 take other storage plus inflow amounts, would this number 9 change? 10 MR. HILDEBRAND: Well, the number would change, but 11 proportionately you would get into the same kind of thing. 12 MR. HERRICK: Thank you. Mr. Hildebrand, do you 13 recall -- Mr. Hildebrand, do you recall Mr. Steiner's 14 testimony with regards to Merced's supplying, I'll say, of 15 flows under the SJRA? Do you recall that Merced was one of 16 the storage districts -- irrigation districts that would 17 supply flows under the SJRA? 18 MR. HILDEBRAND: Yes. 19 MR. HERRICK: Do you recall his testimony that under 20 his assumptions in some years Merced would have to decrease 21 diversions? 22 MR. HILDEBRAND: Yes. 23 MR. HERRICK: Is this an indication of whether or not 24 Merced would be decreasing consumption? 25 MR. HILDEBRAND: No. It's rather inconceivable that CAPITOL REPORTERS (916) 923-5447 1973 1 Merced Irrigation District is going to deprive its clients 2 of the water to grow whatever crops they want to grow. So 3 I would have to assume that under those circumstances they 4 would either use groundwater, or some other means of 5 maintaining the same crop production. 6 And if you use groundwater that year it's going to 7 have to be replenished in another year. So in a long-term 8 you're still going to use that water. 9 MR. HERRICK: That would be my next question, 10 Mr. Hildebrand. If you're substituting, say, groundwater 11 for your use, does that allow you to have an increase in 12 San Joaquin Delta outflow? 13 MR. HILDEBRAND: Not in the long-term. 14 MR. HERRICK: But it could in any particular year? 15 MR. HILDEBRAND: Yes, but not in the long-term. 16 MR. HERRICK: Do you understand Mr. Steiner's 17 testimony to have addressed that issue? 18 MR. HILDEBRAND: No, I don't believe he did. 19 MR. HERRICK: Again, Mr. Hildebrand, as a final 20 question: Do you recall whether the SJRA makes any 21 specification as to the method of the flows it supplies? 22 MR. HILDEBRAND: I'm not quite sure what you mean by 23 "method." 24 MR. HERRICK: Does the agreement specify how each of 25 the parties who is supplying water will supply the water? CAPITOL REPORTERS (916) 923-5447 1974 1 MR. HILDEBRAND: No, it does not. 2 MR. HERRICK: And -- 3 MR. HILDEBRAND: He, however, had to make some 4 assumptions on that in doing his modeling. 5 MR. HERRICK: Did you hear the testimony of 6 Mr. Steiner and somebody else, too, that the division 7 agreement is flexible enough so that the water specified 8 could actually be provided through some other source in 9 various instances? 10 MR. HILDEBRAND: I believe it was something in that 11 regard, I don't recall it precisely. 12 MR. HERRICK: Those are all the questions I have. 13 Thank you, Mr. Chairman. 14 C.O. CAFFREY: All right. Thank you very much, 15 Mr. Herrick. By a showing of hands, how many parties wish 16 to cross-examine Mr. Hildebrand? Mr. Robbins. 17 MR. ROBBINS: Mr. Chairman, I wonder if we might have 18 just a short five minutes to consult, we might be able to 19 consolidate our cross in this regard? 20 C.O. CAFFREY: Sure. Let's take a five-minute break 21 and you can do that -- I'm sorry, Mr. Birmingham, did you 22 have a question before we break? 23 MR. BIRMINGHAM: I was just raising my hand to show 24 an interest in cross-examining Mr. Hildebrand. 25 C.O. CAFFREY: Thank you, sir. We'll call for a CAPITOL REPORTERS (916) 923-5447 1975 1 showing of hands when we come back. Thank you, sir. 2 (Recess taken from 9:35 a.m. to 9:40 a.m.) 3 C.O. CAFFREY: All right. Now, we are back on the 4 record. By a showing of the hands, how many parties wish 5 to cross-examine Mr. Hildebrand on his rebuttal evidence? 6 Mr. Birmingham, anyone else? Mr. Sexton. Did I miss 7 anybody? All right. We have Mr. Birmingham and 8 Mr. Sexton. And we'll start with Mr. Birmingham. 9 ---oOo--- 10 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 11 OF ALEX HILDEBRAND 12 BY THOMAS W. BIRMINGHAM 13 MR. BIRMINGHAM: Mr. Hildebrand, during the early 14 part of your rebuttal testimony you made reference to 15 management of low flows. Do you recall making that 16 statement? 17 MR. HILDEBRAND: Yes. 18 MR. BIRMINGHAM: And do I understand that your basic 19 objection to the San Joaquin River Agreement is that it 20 represents a change in the method by which low flows are 21 managed in the streams which are tributary to the San 22 Joaquin River? 23 MR. HILDEBRAND: My objection has to do with the 24 proposed method of providing the fish flows for Vernalis, 25 which, of course, includes the question of how they're CAPITOL REPORTERS (916) 923-5447 1976 1 managed on the tributaries. 2 MR. BIRMINGHAM: And is that basically a question of 3 timing? 4 MR. HILDEBRAND: To a large degree -- 5 MR. BIRMINGHAM: So -- 6 MR. HILDEBRAND: -- not totally. 7 MR. BIRMINGHAM: So your concern is by making the 8 releases of water during the VAMP study period, the water 9 will not be available for subsequent release -- or for 10 release in subsequent months during the irrigation season; 11 is that correct? 12 MR. HILDEBRAND: Well, not just in the irrigation 13 season, but at times other than the pulse flow and not 14 necessarily in the same year. It can affect what happens 15 in the subsequent year. 16 MR. BIRMINGHAM: That leads me to another question. 17 You said that Mr. Steiner didn't explain how the water 18 would be made available, the increased flows would be made 19 available; is that correct? 20 MR. HILDEBRAND: That's correct. 21 MR. BIRMINGHAM: But isn't it correct that 22 Mr. Steiner did explain that flows would be made 23 available -- increased flows would be made available in one 24 year based upon the operation of reservoirs in prior or 25 subsequent years? Excuse me, I'm asking Mr. Hildebrand CAPITOL REPORTERS (916) 923-5447 1977 1 this question, not Mr. Herrick. 2 C.O. CAFFREY: Right. 3 MR. BIRMINGHAM: And if Mr. Herrick has something to 4 say to Mr. Hildebrand, I would appreciate it if it was 5 stated on the record. 6 C.O. CAFFREY: Yes. Mr. Herrick. 7 MR. HERRICK: Yes, Mr. Chairman? 8 C.O. CAFFREY: One of the difficulties we have, I 9 don't know if you had heard Mr. Birmingham's objection, but 10 one of the difficulties is I don't know what you're telling 11 Mr. Hildebrand. So I don't know if you are coaching the 12 witness or not. And so -- 13 MR. HILDEBRAND: I don't need any coaching. 14 C.O. CAFFREY: I honestly don't believe that you do, 15 Mr. Hildebrand. Although I'm not sure what the official 16 rule, if we have one on this is. 17 MS. LEIDIGH: There's not. 18 MR. HERRICK: May I be heard? 19 C.O. CAFFREY: Yes, you may. In fact, that's exactly 20 what Mr. Birmingham was asking if you could say on the 21 record what you were saying to Mr. Hildebrand. 22 MR. HERRICK: It's, shall we say, stunning to hear 23 that objection after, what, ten days of testimony with 24 lawyers constantly talking to the witness in the middle of 25 questions. I just assume that's another method that is CAPITOL REPORTERS (916) 923-5447 1978 1 being employed to interrupt Mr. Hildebrand's train of 2 thought and answers. It's perfectly appropriate for the 3 attorney to consult with the witness. And it has happened 4 with every witness we've had with an attorney sitting here. 5 C.O. CAFFREY: That is true. And this is the first 6 objection. Ms. Leidigh, is there any problem with 7 attorneys and witnesses discussing answers before answers 8 are given? 9 MS. LEIDIGH: There's no rule that prohibits that 10 kind of discussion. It would be helpful if the attorney 11 asked to go off the record if it was going to be an 12 extensive discussion. But there's no prohibition. Again, 13 the Administrative Hearings before the Board are not 14 subject to Technical Rules of Evidence. 15 C.O. CAFFREY: All right. You will -- 16 MR. BIRMINGHAM: Mr. Chairman? 17 C.O. CAFFREY: Yes, Mr. Birmingham. 18 MR. BIRMINGHAM: I've heard Mrs. Leidigh say that now 19 many times. And she's absolutely correct. The Board's 20 regulations do not state that the Technical Rules of 21 Evidence apply to this hearing process. 22 But many of the objections that I have made are 23 not based upon the Technical Rules of Evidence. I -- the 24 objections that I have made, for instance, the objection I 25 made earlier this morning, is an objection to the form of CAPITOL REPORTERS (916) 923-5447 1979 1 the question. It's not an objection based upon any rule of 2 evidence that's set out in the Evidence Code. 3 The objection that I have now -- and addressing 4 Mr. Herrick's point, he's correct, too. I have observed 5 other attorneys coaching the witnesses, but it wasn't at a 6 time when I was examining the witness. And Mr. Herrick has 7 not seen me coach any of my witnesses. 8 I think that if Mr. Herrick wants to clarify a 9 point based upon a question that I ask in 10 cross-examination, he has the ability to do that through 11 redirect examination. I have the right to cross-examine 12 Mr. Hildebrand based upon his personal knowledge, not what 13 Mr. Herrick whispers in his ear. 14 C.O. CAFFREY: Expect that we don't know what 15 Mr. Herrick is whispering in his ear, unfortunately. 16 MR. BIRMINGHAM: And if Mr. Herrick is willing to 17 waive the attorney-client privilege, I'd be happy to have 18 him tell me that. But I suspect Mr. Herrick is going to 19 say, no, I'm not going to tell Mr. Birmingham what I'm 20 whispering in Mr. Hildebrand's ear, because it's protected 21 by the attorney-client privilege. 22 MR. HILDEBRAND: He didn't coach me on anything 23 material to the question. 24 C.O. CAFFREY: Excuse me, Mr. Hildebrand. Let me 25 just say this: We do not operate the same way here as we CAPITOL REPORTERS (916) 923-5447 1980 1 do in court. Although, in my humble opinion as Hearing 2 Officer, there are equity questions here as Mr. Birmingham 3 points out. We have not, throughout the course of this 4 proceeding, reprimanded or disallowed consultations at the 5 table between attorneys and clients. Nevertheless, 6 extended discussions after a fairly clear and simple 7 question can lead people to believe that there is undue 8 discussion going on. 9 So in the spirit of fairness to the 10 cross-examiners and to all the parties, I'm going to ask 11 that these consultations be kept to a minimum. And if 12 there's a reason for an extended consultation, as 13 Ms. Leidigh points out, you probably need to go off the 14 record and perhaps provide some explanation. 15 I'm sorry that's a little gray. It has to be a 16 judgment call on everybody's part, because of the way we 17 have proceeded and because of the lack of prohibition in 18 our regulations. So I would just hope that in the spirit 19 of a proper and fair proceeding that when a question is 20 asked that there is a simple answer, that there's not a lot 21 of need for a lot of strategizing to go on before the 22 question is answered. 23 Thank you. Do you want to ask the question again, 24 Mr. Birmingham? 25 MR. BIRMINGHAM: I'd ask that the question be read CAPITOL REPORTERS (916) 923-5447 1981 1 bak. 2 C.O. CAFFREY: Mary, how's your 486 going today? 3 THE COURT REPORTER: It will be off my notes. 4 C.O. CAFFREY: All right. Why don't you read back 5 the question. 6 (Whereupon the question was readback by the Reporter.) 7 MR. BIRMINGHAM: I will object to that question. 8 MR. HERRICK: Wait a minute, that's my job, 9 Mr. Chairman. 10 C.O. CAFFREY: Will you clarify, Mr. Birmingham? 11 MR. BIRMINGHAM: I will object to that question on 12 the grounds as my good friend F. Ross Dodge would say, 13 "It's completely unintelligible." 14 C.O. CAFFREY: You want to try the question again? 15 MR. BIRMINGHAM: I will, yes. Thank you. 16 C.O. CAFFREY: Go ahead. 17 MR. BIRMINGHAM: Mr. Hildebrand, isn't it correct 18 that Mr. Steiner testified that increased flows in one year 19 would be made available as a result of the change in 20 operation of reservoirs in prior or subsequent years? 21 MR. HILDEBRAND: Well, I'd have to answer yes and no 22 to that, because he did indicate and, it's certainly true, 23 that you can draw down a reservoir and get more flow in one 24 year, but then you have less water available the following 25 year. And unless that is refilled with what would CAPITOL REPORTERS (916) 923-5447 1982 1 otherwise be a flood release, it means that there's going 2 to be less water let down at some subsequent time, or you 3 could overfill some previous year, I suppose, and do the 4 reverse thing, but that's a little more hypothetical. 5 MR. BIRMINGHAM: Now, I believe you also testified 6 that Dr. -- excuse me, Mr. Steiner did not explain how the 7 increased flows would be made available as a result of 8 reduced consumption within the districts that are supplying 9 the water; is that correct? 10 MR. HILDEBRAND: He only indicated that might occur 11 in the case of the Merced. And as we discussed earlier, 12 the presumption seems pretty clear to me that they would 13 make up that water with groundwater pumping or some other 14 means, because you know the directors of these irrigation 15 districts can get fired if they deprive their clients of 16 the water they need. 17 MR. BIRMINGHAM: Now, Mr. Hildebrand, I presume that 18 you've read the San Joaquin River Agreement, which is in 19 evidence as San Joaquin River Group Authority Exhibit 2? 20 MR. HILDEBRAND: Yes. I can't quote it. I haven't 21 read it that recently. 22 MR. BIRMINGHAM: It's correct, isn't it, 23 Mr. Hildebrand, that as a result of that agreement the 24 agencies that are supplying the water under the agreement 25 for increased flows will receive payment from the Bureau of CAPITOL REPORTERS (916) 923-5447 1983 1 Reclamation, Department of the Interior and the State 2 Department of Water Resources? 3 MR. HILDEBRAND: Oh, yeah. They're going to make a 4 lot of money. 5 MR. BIRMINGHAM: And isn't it correct, 6 Mr. Hildebrand, that the funds that are going to be paid to 7 the members of the Authority are going to be used to 8 enhance efficient water management? 9 MR. HERRICK: Objection, your Honor. 10 C.O. CAFFREY: You're not having a good day, 11 Mr. Herrick. 12 MR. HERRICK: As to prior objections by other 13 parties, this gets into testimony that was not presented in 14 the case in chief by the San Joaquin River Authority or 15 Westlands Water District. I don't recall the witness's 16 name, but they have a witness or two that gave us a 17 voluminous piece of testimony that talked about how the 18 money will be spent, maybe; and what programs will be 19 undertaken, maybe; and how that perhaps might generate new 20 water. But this is getting into areas that they should 21 have presented in their case in chief but chose not to, and 22 so it should not be a subject of cross-examination of this 23 witness. 24 MR. BIRMINGHAM: Oh, to the contrary, Mr. Chairman. 25 C.O. CAFFREY: Mr. Birmingham? CAPITOL REPORTERS (916) 923-5447 1984 1 MR. BIRMINGHAM: This is in evidence. The San 2 Joaquin River Agreement is very specific. But to address 3 the question, maybe I can just ask a specific question of 4 Mr. Hildebrand about the agreement. 5 C.O. CAFFREY: So just for the record you're going to 6 reformulate the question? 7 MR. BIRMINGHAM: I will rephrase the question. 8 C.O. CAFFREY: Thank you, Mr. Birmingham. 9 MR. BIRMINGHAM: Mr. Hildebrand, do you have a copy 10 of the San Joaquin River Agreement, San Joaquin River Group 11 Authority Exhibit 2 with you? 12 MR. HILDEBRAND: No. 13 MR. BIRMINGHAM: I'm handing you my copy of the 14 agreement, and specifically I'm referring to page eight of 15 the agreement. And I'd ask you to read into the record the 16 portion of the agreement which I have highlighted. 17 MR. HILDEBRAND: "That funds paid to the SJRGA are 18 intended to be substantially used to enhance efficient 19 water management within the districts including but not 20 limited to water reclamation, conservation, conjunctive 21 use, and system improvements." 22 MR. HERRICK: Could I go off the record to confer 23 with my client, Mr. Chairman? 24 C.O. CAFFREY: You want a one-minute recess? 25 MR. HERRICK: No. You directed me to go off the CAPITOL REPORTERS (916) 923-5447 1985 1 record if I wanted to confer with my client. 2 C.O. CAFFREY: Since there is not a question posed to 3 the witness at this moment, I'll allow you to do that. 4 Let's go off the record for? 5 MR. HERRICK: Ten seconds. 6 C.O. CAFFREY: You can even take more time than that 7 if you wish. 8 (Off the record.) 9 C.O. CAFFREY: All right. Thank you, Mr. Herrick. 10 We're back on the record. Mr. Birmingham, you may proceed, 11 sir. 12 MR. BIRMINGHAM: Thank you. Mr. Hildebrand, if the 13 districts that receive this money implement water 14 reclamation programs, would that result in reduced 15 consumption within the service area of these districts? 16 MR. HILDEBRAND: Well, there's two answers to that. 17 In the first place, this says they may do these things. It 18 doesn't say they will, there's no quantification, or 19 monitoring, or guarantee that they will do any of those 20 things. Or that if they did them that they would be in a 21 quantity comparable to the releases that they plan to make. 22 MR. BIRMINGHAM: Excuse me, Mr. Chairman, I don't 23 believe that that's responsive to my question. I wonder if 24 the witness could be directed to respond to my question? 25 C.O. CAFFREY: He's -- I don't think he's directly CAPITOL REPORTERS (916) 923-5447 1986 1 responding to the question. He may be setting up an answer 2 with a lot of qualification. It would be easier, 3 Mr. Hildebrand, if you answer the question first and then 4 qualified later, which is what we have been doing in the 5 proceedings, to be very technical. If you could do it that 6 way, sir, it would be helpful. 7 MR. HILDEBRAND: Will you repeat the question, 8 please? 9 MR. BIRMINGHAM: Yes. If the members of the 10 Authority used the funds that they received to implement 11 water reclamation programs, wouldn't that result in reduced 12 consumption within the service areas of the districts? 13 MR. HILDEBRAND: Will you define what you mean by 14 "reclamation"? 15 MR. BIRMINGHAM: That water is recirculated and 16 reused. 17 MR. HILDEBRAND: If they make better multiple use of 18 the water that could be the case. 19 MR. BIRMINGHAM: And if they make system 20 improvements, if they improve their system to reduce 21 conveyance losses, would that result in reduced consumption 22 within their service areas? 23 MR. HILDEBRAND: No. 24 MEMBER BROWN: Mr. Chairman? 25 C.O. CAFFREY: Mr. Brown. CAPITOL REPORTERS (916) 923-5447 1987 1 MEMBER BROWN: Excuse me, Mr. Birmingham. You're 2 talking about the consumptive. Are you talking about the 3 applied water, or the consumptive use of crops itself? Are 4 you talking about the reduced consumptive use, or the 5 reduced application of the applied water? 6 MR. BIRMINGHAM: Thank you, Mr. Brown, for clarifying 7 that question, because it is an important clarification. 8 What I'm talking about is the total amount of water applied 9 within the district. 10 MEMBER BROWN: Okay. Thank you. 11 C.O. CAFFREY: In fairness to the witness, since that 12 clarification is now in the record, does the witness need 13 to modify his answer in any way? 14 MR. HILDEBRAND: Changing the applied water without 15 affecting the consumptive use of water won't make any -- 16 cause any long-term change in the situation. 17 C.O. CAFFREY: All right. 18 MR. BIRMINGHAM: Let me explore this further with 19 you, Mr. Hildebrand. 20 C.O. CAFFREY: Please do, Mr. Birmingham. 21 MR. BIRMINGHAM: If a recirculation program is 22 implemented, the total number of acre-feet diverted from a 23 stream would be reduced; is that correct? 24 MR. HILDEBRAND: The diversion, yes. 25 MR. BIRMINGHAM: And so there would be more flows in CAPITOL REPORTERS (916) 923-5447 1988 1 the river? 2 MR. HILDEBRAND: More water would be left in the 3 river, yes. 4 MR. BIRMINGHAM: Which results in more flows; is that 5 correct? 6 MR. HILDEBRAND: Not necessarily, because you would 7 at the same time be reducing the return flow. 8 MR. BIRMINGHAM: Which leads me to another question. 9 You stated on Exhibit South Delta Water Agency -- 10 C.O. CAFFREY: Do you need the exhibit on the wall 11 again, Mr. Birmingham? 12 MR. BIRMINGHAM: No, thank you, Mr. Chairman. 13 C.O. CAFFREY: All right. 14 MR. BIRMINGHAM: South Delta Water Agency Exhibit 50 15 that in making the calculation you used a return flow rate 16 of 30 percent; is that correct? 17 MR. HILDEBRAND: We used that as a conservative 18 example, but I mentioned that the return flow is probably 19 more than 30 percent. 20 MR. BIRMINGHAM: You used 30 percent as a 21 conservative example? 22 MR. HILDEBRAND: Yeah, in the sense that it is likely 23 to be more than 30 percent. 24 MR. BIRMINGHAM: What is the rate of return flow 25 within Modesto Irrigation District, Mr. Hildebrand? CAPITOL REPORTERS (916) 923-5447 1989 1 MR. HILDEBRAND: I can't say, except there's all 2 kinds of data on the amount of water consumed versus the 3 amount that is recoverable all over the state made by DWR 4 and others. And it indicated even in some of the 5 best-managed water locations, such as the Westlands Water 6 District, that it's difficult for them to get more than the 7 70 percent application efficiency. 8 MEMBER BROWN: Mr. Chairman? 9 C.O. CAFFREY: Mr. Brown. 10 MEMBER BROWN: I have another clarifying question. 11 When both of you are talking about "return flow," are you 12 talking about water returned to the river and 13 depercolation, or just water returned to the river? 14 MR. HILDEBRAND: Do you want me to answer first, or 15 do you want to answer first? 16 MR. BIRMINGHAM: You're the witness. 17 MR. HILDEBRAND: I'm talking about total recoverable 18 water. Some of it percolates to groundwater and some are 19 used from groundwater, others actually spills back to the 20 river, so forth. So that the question is: What happens to 21 the overall water supply in the watershed when you do this? 22 MEMBER BROWN: Thank you, Mr. Chairman. 23 C.O. CAFFREY: All right, Mr. Brown. Mr. Birmingham, 24 please, proceed, sir. 25 MR. BIRMINGHAM: But I believe, Mr. Hildebrand, that CAPITOL REPORTERS (916) 923-5447 1990 1 your testimony is that you don't know what the rate of 2 return flows is within Modesto Irrigation District's 3 boundaries? 4 MR. HILDEBRAND: Not specifically. 5 MR. BIRMINGHAM: You do not know what the rate of 6 return flows is within Merced Irrigation District, do you? 7 MR. HILDEBRAND: Not specifically, neither do you. 8 MR. BIRMINGHAM: I wonder if the witness could be 9 asked not to argue with me. 10 C.O. CAFFREY: To be honest, I didn't hear the last 11 part of his comment. 12 MR. HILDEBRAND: Well, I'll withdraw it if it offends 13 him. He seems to think he's not being argumentative. 14 C.O. CAFFREY: If your attorney has an objection to 15 him being argumentative, it's his job, Mr. Hildebrand, to 16 raise that issue. 17 MR. HILDEBRAND: I understand. I'm not an attorney. 18 C.O. CAFFREY: All right. Go ahead, Mr. Birmingham. 19 MR. BIRMINGHAM: I've asked you about Modesto 20 Irrigation District and Merced Irrigation District. You 21 don't know what the rate of return flows is in Turlock 22 Irrigation District either, do you? 23 MR. HILDEBRAND: Not specifically. 24 MR. BIRMINGHAM: And you don't know what the rate of 25 return flows is in Oakdale Irrigation District? CAPITOL REPORTERS (916) 923-5447 1991 1 MR. HILDEBRAND: Not specifically. 2 MR. BIRMINGHAM: So you don't know whether or not 3 there is a basis for using the 30-percent estimate in 4 calculating the return flows in the preparation of Exhibit 5 50, do you? 6 MR. HILDEBRAND: The exhibit merely is illustrative 7 of what would happen if the return flow is 30 percent, but 8 I think there's ample reason to believe that it's not less 9 than that. 10 MR. BIRMINGHAM: During your direct examination by 11 Mr. Herrick you stated that Mr. Steiner is a very capable 12 modeler. Was that your testimony? 13 MR. HILDEBRAND: That's correct. 14 MR. BIRMINGHAM: Have you reviewed all of the 15 modeling analysis that was performed by Mr. Steiner which 16 served as the basis of his testimony? 17 MR. HILDEBRAND: Well, as I explained, I don't 18 pretend to check his actual modeling because I have 19 confidence in his ability. But the question is whether his 20 inputs are correct. 21 C.O. CAFFREY: Mr. Hildebrand, there's -- there needs 22 to be a "yes" or "no" answer in there somewhere I believe, 23 because he asked you specifically: If you had reviewed the 24 analysis? And I don't know that you answered that. 25 MR. HILDEBRAND: I -- CAPITOL REPORTERS (916) 923-5447 1992 1 C.O. CAFFREY: I'm sorry. I'm anticipating 2 Mr. Birmingham's statement. Maybe I'm getting ahead of 3 myself here. 4 MR. BIRMINGHAM: No, in fact, Mr. Chairman, I would 5 appreciate a specific answer to what I thought was a pretty 6 clear question. 7 C.O. CAFFREY: Let me just say something here. We 8 all have great respect for Mr. Hildebrand. And we all have 9 great respect for you, too, Mr. Birmingham. And I know 10 some of these are very emotional issues for some of the 11 parties. And I just want to instruct this witness and all 12 the other witnesses to do everything they can not to be 13 argumentative and to answer the questions to the best of 14 their ability. I know it's tough sometimes, but it is 15 very, very important for the intent of these proceedings. 16 Did you need some time, Mr. Herrick? 17 MR. HERRICK: No, Mr. Chairman. I'd just like to 18 comment on that. With all due respect, I don't think 19 that's appropriate. Mr. Hildebrand clearly answered the 20 question. There's no mechanism or rule that requires 21 somebody to answer the way you want them to answer "yes" or 22 "no." 23 If he isn't thinking a "yes" or "no" answer is the 24 answer, he's perfectly entitled to explain his answer. If 25 Mr. Birmingham wants to ask him a question a hundred times, CAPITOL REPORTERS (916) 923-5447 1993 1 Mr. Hildebrand still doesn't have to answer "yes" or "no." 2 And this happens every time we get here, when Mr. 3 Hildebrand gets on the stand people don't like to hear him 4 give the truth, because they've already concocted some 5 other thing. And his answer is just plain satisfactory 6 according to any rule of evidence, or nonrule of evidence 7 you might use. 8 C.O. CAFFREY: Well, I appreciate your statement and 9 your argument, Mr. Herrick. But in this case, the Hearing 10 Officer, while I might have jumped ahead of the questioner, 11 I had a little difficulty understanding the answer, that 12 particular answer in finding it responsive. I want to make 13 it clear that we do give wide latitude in answers here. 14 But in response to the question: Had he reviewed 15 that analysis, I think he was answering something else. He 16 was not answering that question. I don't want to belabor 17 this, but that's the point and that's the ruling and I'd 18 like to hear the answer to that specific question. 19 MR. HILDEBRAND: My answer was "no" for the reasons 20 that I gave. 21 MR. BIRMINGHAM: Thank you. 22 C.O. CAFFREY: Thank you, Mr. Hildebrand. 23 MR. BIRMINGHAM: I believe in Phase I, 24 Mr. Hildebrand, you testified that you were not an expert 25 modeler? CAPITOL REPORTERS (916) 923-5447 1994 1 MR. HILDEBRAND: I'm not an expert modeler, but I 2 testified that I'm pretty good at knowing what the inputs 3 and outputs should be and what the models can and cannot 4 do. 5 MR. BIRMINGHAM: And before trying to evaluate the 6 reliability of the modeling analysis, you would want to 7 examine the inputs to the model; is that correct? 8 MR. HILDEBRAND: Yes. 9 MR. BIRMINGHAM: And in this situation you have not 10 examined the inputs relied on by Mr. Steiner in the 11 modeling analysis; is that correct? 12 MR. HILDEBRAND: I have to the extent that I 13 considered them relevant. 14 MR. BIRMINGHAM: Have you reviewed all of the 15 modeling inputs relied on by Mr. Steiner, Mr. Hildebrand? 16 MR. HILDEBRAND: I didn't think that was necessary. 17 MR. BIRMINGHAM: Have you reviewed the groundwater 18 models that relate to the groundwater basins in which the 19 tributaries to the San Joaquin River are located? 20 MR. HILDEBRAND: I don't recall it. Mr. Steiner did 21 that. 22 MR. BIRMINGHAM: I didn't ask if Mr. Steiner did it, 23 Mr. Chairman. I asked if Mr. Hildebrand -- 24 C.O. CAFFREY: I don't mean to interpret his answer, 25 but I think he was saying that he didn't recall that what CAPITOL REPORTERS (916) 923-5447 1995 1 you had portrayed in the question had occurred, rather than 2 being argumentative. Am I right? 3 MR. HILDEBRAND: Yes. 4 C.O. CAFFREY: Try the question again. 5 MR. BIRMINGHAM: Have you reviewed -- you, 6 Mr. Hildebrand, reviewed the groundwater models that are 7 applicable to the basins in which the tributaries to the 8 San Joaquin are located? 9 MR. HILDEBRAND: Can you relate that to the SJRA 10 proposal? 11 MR. BIRMINGHAM: Well, in your testimony, you -- your 12 direct testimony you talked about the reliability of the 13 model depending on the condition of the groundwater basis; 14 is that correct? 15 MR. HILDEBRAND: I don't recall just what statement 16 you're referring to. 17 MR. BIRMINGHAM: Well, isn't it correct, 18 Mr. Hildebrand, that in your direct testimony you indicated 19 that there were -- you had questions about Mr. Steiner's 20 modeling? 21 MR. HERRICK: Objection, that's very vague and does 22 not restate the testimony. 23 MR. BIRMINGHAM: I haven't -- 24 MR. HERRICK: I think the questioner could, 25 certainly, be a little more clear on it. CAPITOL REPORTERS (916) 923-5447 1996 1 C.O. CAFFREY: I hear what you're saying, 2 Mr. Herrick, but I think Mr. Birmingham is still in the 3 formulation of his question. 4 MR. BIRMINGHAM: I have not completed my question. 5 C.O. CAFFREY: Please, proceed, Mr. Birmingham. 6 MR. BIRMINGHAM: Is it your testimony that you have 7 questions about Mr. Steiner's modeling results because they 8 don't adequately address issues of groundwater conditions? 9 MR. HILDEBRAND: Can you refer me to whatever 10 specific statement you're questioning here? 11 MR. BIRMINGHAM: Well, if the answer -- if the answer 12 to my question is, no, I'm not properly recollecting -- or 13 recalling your earlier testimony, that's fine. It was my 14 understanding based on your testimony that was elicited 15 from Mr. Herrick that you had questions about Mr. Steiner's 16 modeling, because it didn't adequately address the 17 condition of groundwater in the relevant basins. Is that 18 correct? 19 MR. HILDEBRAND: I don't think I said what you've 20 just said. 21 MR. BIRMINGHAM: Thank you for correcting me. I have 22 no further questions. 23 C.O. CAFFREY: All right. Thank you, Mr. Birmingham. 24 Mr. Sexton. Good morning, sir. 25 // CAPITOL REPORTERS (916) 923-5447 1997 1 ---oOo--- 2 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 3 OF ALEX HILDEBRAND 4 BY MICHAEL V. SEXTON 5 MR. SEXTON: Good morning, Mr. Caffrey. 6 Mr. Hildebrand, would you agree that the purpose of the 7 Water Quality Control Plan adopted by this Board in 1995 8 was to enhance Delta water quality? 9 MR. HILDEBRAND: That's a purpose, but not the 10 purpose. 11 MR. SEXTON: I said, "a purpose," if I didn't I meant 12 to say, "a purpose." So you would agree that it's a 13 purpose? 14 MR. HILDEBRAND: Yes. 15 MR. SEXTON: You mention that with regard to 16 Mr. Steiner's work that the flow salinity curves don't take 17 into account the origination of water. Is that your 18 testimony? 19 MR. HILDEBRAND: That's right, because those curves 20 are derived based on some historical relationship 21 between -- that has occurred in the past. And when you 22 start to change those past conditions, you change the 23 relationship. 24 MR. SEXTON: Do you remember the testimony of 25 Mr. Van Camp when he explained to the Board the source of CAPITOL REPORTERS (916) 923-5447 1998 1 water under the River Group Authority's Division Agreement? 2 MR. HILDEBRAND: Can you be more specific? 3 MR. SEXTON: Do you recall when Mr. Van Camp talked 4 about where water was going to come from and what 5 quantities of water each of the members of the River Group 6 Authority were going to provide under the SJRA agreement? 7 MR. HILDEBRAND: I recall he discussed the figures 8 that are in the agreement in that regard, but they're not 9 binding. 10 MR. SEXTON: Well, you recall, for example, that most 11 of the water was going to be provided by Merced? Do you 12 recall that? 13 MR. HILDEBRAND: A majority of the total water, yes. 14 MR. SEXTON: And then the next highest quantity was 15 going to be provided by Oakdale and South San Joaquin. Do 16 you recall that? 17 MR. HILDEBRAND: I believe that's right. 18 MR. SEXTON: And then it would shift to the Exchange 19 Contractors -- excuse me, yeah, would shift to the Exchange 20 Contractors? 21 MR. HILDEBRAND: I would have to have the exhibit in 22 front of me to recall -- to be sure of my answer to that. 23 MR. SEXTON: Okay. Would you agree that most of the 24 water that is provided under the river agreement -- the San 25 Joaquin River Agreement is going to come from a source CAPITOL REPORTERS (916) 923-5447 1999 1 other than from the Exchange Contractors? 2 MR. HILDEBRAND: Yes, but not necessarily most of the 3 salt load in that water. 4 MR. SEXTON: You want to run that by me, again, sir? 5 I don't understand. 6 MR. HILDEBRAND: Well, if the water supplied by the 7 Exchange Contractors is considerably saltier than the water 8 that is supplied out of the tributaries, I don't know 9 whether the salt load that would be introduced by the 10 tributaries would be more or less than that introduced by 11 the Exchange Contractors. I've made no such calculation. 12 MR. SEXTON: So you don't know what the increase, if 13 any, in salt loads to the river is going to be as a result 14 of the San Joaquin River Agreement? 15 MR. HILDEBRAND: The river agreement isn't that 16 specific and we saw no analysis of that. 17 MR. SEXTON: And you've done no analysis yourself on 18 that subject? 19 MR. HILDEBRAND: That's right. I can merely 20 speculate. 21 MR. SEXTON: Have you done any analysis on the 22 quality of South Delta Water Agencies receiving water? 23 MR. HILDEBRAND: Will you repeat that again? 24 MR. SEXTON: Have you done any calculation of what 25 the water quality is of the South Delta Water Agencies that CAPITOL REPORTERS (916) 923-5447 2000 1 receive water? 2 MR. HILDEBRAND: Of the water that enters the South 3 Delta at Vernalis, is that what you're -- 4 MR. SEXTON: Wherever your diversion point is. 5 MR. HILDEBRAND: Well, we divert throughout 75 miles 6 of channel. And the water supplied for that diversion is 7 largely a result of the water coming down the San Joaquin 8 River. Now, if the San Joaquin inflow is less than the 9 diversions in the South Delta, then, some water is drawn 10 from Central Delta. But this Board has indicated in the 11 past that our water rights are pertinent to the San Joaquin 12 River flow. 13 MR. SEXTON: You're not answering my question. I've 14 asked you if you've done any calculation on the water 15 quality of the South Delta that receive water. 16 MR. HILDEBRAND: That's what I'm trying to answer. 17 MR. SEXTON: Well, you haven't answered -- 18 C.O. CAFFREY: Wait. Wait. Wait. One person 19 talking at a time. Just a minute, Mr. Sexton. Go ahead, 20 Mr. Hildebrand. 21 MR. HILDEBRAND: We have lots of information. There 22 is extensive data on the quality and quantity of the inflow 23 at Vernalis. That's a matter of record. 24 MR. SEXTON: So do I take your answer, then, that you 25 have done calculations of South Delta's water quality? CAPITOL REPORTERS (916) 923-5447 2001 1 MR. HILDEBRAND: I don't know what you mean by 2 "calculations." We've certainly looked at the data. We -- 3 you know, there's a continuous data collection of the flow 4 and quality of the water at Vernalis. That's not a matter 5 of analysis. It's just a matter of available information. 6 MR. SEXTON: And have you done a calculation of the 7 discharge waters that South Delta releases back to the 8 river after you've irrigated? 9 MR. HILDEBRAND: Yes. We add very, very little salt 10 to the water that we divert. So what's happening is that 11 the water that flows back to the channels from our 12 diversions contain the same salt load that came down the 13 river, came through at Vernalis. We aren't increasing the 14 salt load. We're merely concentrating it. We have no 15 choice but to concentrate it. 16 MR. SEXTON: So you disagree with the testimony of 17 your own consultant on that subject, Mr. Orlob? 18 MR. HERRICK: Objection. There's no testimony of 19 Dr. Orlob in evidence. That's argumentative besides being 20 speculative of evidence that's not been presented. 21 MR. BIRMINGHAM: Excuse me, Mr. Chairman. 22 C.O. CAFFREY: Mr. Birmingham? 23 MR. BIRMINGHAM: Mr. Hildebrand is testifying here as 24 an expert. Mr. Sexton is entitled to explore his opinions 25 on the basis of his opinions and challenge those opinions CAPITOL REPORTERS (916) 923-5447 2002 1 based upon any other expert opinion whether in evidence or 2 not. 3 MR. HERRICK: That's appropriate if we've laid some 4 sort of foundation for this question. But the question was 5 certainly argumentative in asking him, then, he then 6 disagrees with something that's not been discussed. 7 C.O. CAFFREY: Mr. Jackson? 8 MR. JACKSON: Yes, Chairman Caffrey. There's a lot 9 of interesting evidence on Phase V dealing with salinity 10 standards of various irrigation districts. Are we going to 11 go into that in Phase II, because -- 12 C.O. CAFFREY: That's a different question. 13 MR. JACKSON: -- I may have to wake up, because I do 14 have some questions. 15 C.O. CAFFREY: That's a different question, 16 Mr. Jackson. I haven't ruled yet. So -- we're going to go 17 off the record for a minute. 18 (Off the record from 10:23 a.m. to 10:24 a.m.) 19 C.O. CAFFREY: All right, we're back on the record. 20 We've allowed a question or two that gets close to what we 21 might call the gray borderlines among these phases. And 22 I'm not going to change now. And I'm also going to point 23 out that we're probably fairly close to the edge of what 24 the scope of the rebuttal testimony was. And I'm going to 25 allow the question, but I want to see where it takes us. I CAPITOL REPORTERS (916) 923-5447 2003 1 don't want to go too far with it. 2 Go ahead, Mr. Sexton -- I should say, go ahead, 3 Mr. Hildebrand, and answer the question 4 MR. HILDEBRAND: I would have to know exactly what 5 question of Dr. Orlob, or what opinion of Dr. Orlob he's 6 talking about. 7 C.O. CAFFREY: And that's an answer. Go ahead, 8 Mr. Sexton. 9 MR. SEXTON: You testified about the quality of the 10 receiving water, do you recall that -- excuse me, the 11 quality of the water that would be provided under the San 12 Joaquin River Agreement? 13 MR. HILDEBRAND: Would you be more specific? 14 MR. SEXTON: You specified in your testimony that you 15 were concerned about Mr. Steiner's work to the extent that 16 it didn't take into account the origination of water. And 17 as I understand your testimony, you were concerned that his 18 modeling didn't take into account different water 19 qualities. 20 MR. HILDEBRAND: That was one point that I made, yes. 21 MR. SEXTON: Has -- well, and your concern, then, 22 would be that the water provided by the San Joaquin River 23 Agreement would then have some impacts at Vernalis water 24 quality, is that your testimony? 25 MR. HILDEBRAND: Very definitely. CAPITOL REPORTERS (916) 923-5447 2004 1 MR. SEXTON: All right. And you recall in the early 2 testimony Mr. Herrick, I think it was in his opening 3 statement, indicated that absolutely nothing was being done 4 on the San Joaquin River to improve water quality. Do you 5 recall that? 6 MR. HILDEBRAND: I don't know exactly what he said, 7 but if the -- there are measures being undertaken down in 8 the west side service area that in some ways alter the salt 9 load that enters the river versus the salt load that we 10 continue to bury in the groundwaters and soils of that 11 area. And some of those efforts are meritorious, but don't 12 really have a lot to do with improving the situation at 13 Vernalis. 14 MR. SEXTON: Okay. 15 MR. HILDEBRAND: In fact, in general, I think they do 16 not. There is even one proposal that I believe that is 17 useful down in that area that is deleterious to the -- or 18 may be deleterious to the water quality at Vernalis. 19 MR. SEXTON: You would agree that some of the folks 20 on the west side, though, are trying to improve water 21 quality to the San Joaquin River, wouldn't you agree with 22 that? 23 MR. HILDEBRAND: I have met with those people and we 24 have a good rapport with them. I think they are doing very 25 well in the things they're trying to do. But as I believe CAPITOL REPORTERS (916) 923-5447 2005 1 I testified earlier, it is very difficult to manage the 2 salt load there in a manner that assists in the salinity at 3 Vernalis unless you either have a valley drain, or you 4 increase the damage to the area down there, or you have 5 some flow provisions such as a release from the DMC through 6 the Newman Wasteway in order to convey that salt load out 7 at a time when you have enough dilution water. 8 MR. SEXTON: That's a real interesting response, sir, 9 but my question is: Wouldn't you agree that the folks on 10 the west side are trying to improve water quality to the 11 river? All that takes is a "yes" or "no" answer. 12 MR. HILDEBRAND: I'm not sure that that's the main 13 motivation of what they're doing right now. But they are 14 quite willing to make that effort if we provide the other 15 measures that are necessary to make that possible. 16 MR. SEXTON: And isn't it true that the South Delta 17 Water Agency is doing absolutely nothing to improve water 18 quality of its -- to improve the water quality of its 19 discharge waters to the Delta? 20 MR. HILDEBRAND: That's not the case. We have made a 21 considerable effort to obtain the permits necessary so that 22 we could operate our barriers in such a way that they would 23 substantially reduce the salt load in the Delta-Mendota 24 Canal. And that in turn would, then, reduce the salt load 25 that enters the river. And we've been frustrated in that CAPITOL REPORTERS (916) 923-5447 2006 1 effort because some of the same agencies that are signing 2 the agreement which says they want to help the situation, 3 have been in opposition to the permits we need to operate 4 those barriers at the times necessary to achieve that end. 5 MR. SEXTON: Besides -- besides putting a barrier, 6 isn't it true that South Delta is taking no active 7 irrigation practices management efforts to decrease its 8 salt discharge to the Delta? 9 MR. HILDEBRAND: As I explained, we do not add any 10 salt. We cannot dispose of the salt that's delivered to us 11 from that service area. 12 MR. SEXTON: So if I told you that Mr. Orlob 13 testified in his deposition that South Delta discharged 14 four times the amount of salt, or the TDS of its discharge 15 waters were four times the TDS of its receiving water, you 16 would disagree with that? 17 MR. HILDEBRAND: I believe Dr. Orlob was answering a 18 question to the effect that if our water use efficiency was 19 75 percent, then, we would, indeed, be concentrating by a 20 factor of four the salt load that was in the water that we 21 diverted from the river, but we didn't create that salt 22 load. 23 MR. SEXTON: One of the proposals that you have 24 suggested that this Board consider is a recirculating 25 proposal whereby Delta-Mendota water is recirculated back CAPITOL REPORTERS (916) 923-5447 2007 1 to the river by means of the Newman Wasteway, or some other 2 location. Is that right, sir? 3 MR. HERRICK: Objection. Mr. Chairman, I don't 4 believe there were -- there was any testimony about 5 recirculation either in the cases in chief, or the in the 6 rebuttal cases. I think this is a little beyond the normal 7 flexible parameters of the scope of the question. 8 C.O. CAFFREY: Off the record for a moment. 9 (Off the record from 10:31 a.m. to 10:32 a.m.) 10 C.O. CAFFREY: Thank you. We're back on the record. 11 Are you asking that question to set up the very next 12 question which has great relevance to the rebuttal 13 argument, or the rebuttal testimony? Because I fail to see 14 the relevance here, at least the fact that it's been 15 introduced. 16 MR. SEXTON: Yes, Mr. Chairman. The witness has been 17 testifying about the location of the waters which are going 18 to be used by the San Joaquin River Agreement parties and 19 has expressed concern for the quality of those waters. 20 C.O. CAFFREY: All right. Why don't we proceed, 21 then, to answer the question that he's asked and then see 22 where that takes us. Mr. Sexton. 23 MR. SEXTON: Mr. Hildebrand, do you recall the 24 question? 25 MR. HILDEBRAND: No. Will you repeat it, please? CAPITOL REPORTERS (916) 923-5447 2008 1 MR. SEXTON: Do you recall that one of the measures 2 that you urged this Board to adopt is a recirculating 3 proposal whereby water from the Delta-Mendota Canal is 4 recirculated back to the San Joaquin River by means of the 5 Newman Wasteway? 6 MR. HILDEBRAND: Yes. 7 MR. SEXTON: Do you know the average quantity of salt 8 that is delivered to the Delta-Mendota Canal service area 9 by water moved through the Delta-Mendota Canal on an annual 10 basis? 11 MR. HILDEBRAND: In years when they received full 12 delivery it is in the order of a million tons a year. 13 MR. SEXTON: And so you're urging this Board, then, 14 to consider a proposal to recirculate that same salt back 15 into the San Joaquin River? 16 MR. HILDEBRAND: We're urging a proposal to use that 17 means of supplying the pulse fish flow, which is at a time 18 when there is no salinity problem and consequently that 19 added salt load would be of no consequence. Furthermore, 20 we've only advocated this recirculation in conjunction with 21 the use of the barriers which, as I said earlier, would 22 substantially reduce the salt load in the Delta-Mendota 23 Canal. 24 MR. SEXTON: And the other benefit to the South Delta 25 would be in your view that you would continue to receive CAPITOL REPORTERS (916) 923-5447 2009 1 the return flow water that you have now been complaining 2 would be changed in time, in the timing when it would 3 actually get back into the river at Vernalis? 4 MR. HILDEBRAND: If fish flow is provided with water 5 from the Delta-Mendota Canal, it is, then, not then 6 supplied with water from the tributaries which is 7 reallocated to the fish-flow period, pulse-flow period and 8 thereby reduces the available dilution at the times when we 9 need it. And there's also the question of meeting our -- 10 the inflow quantities at Vernalis sufficient to meet our 11 riparian rights. 12 MR. SEXTON: So it would be a fair statement to say 13 that South Delta is less concerned with water quality at 14 Vernalis than it is with continuing to use the return flows 15 of other people's water? 16 MR. HERRICK: Objection. That's argumentative. That 17 can certainly be rephrased to elicit some relevant 18 testimony rather than irrelevant. 19 C.O. CAFFREY: Can you try the question again, 20 Mr. Sexton. 21 MR. SEXTON: I'll just withdraw the question, 22 Mr. Chairman. 23 C.O. CAFFREY: Thank you, sir. 24 MR. SEXTON: Mr. Hildebrand, can I refer you to the 25 exhibit that you were testifying about in your rebuttal CAPITOL REPORTERS (916) 923-5447 2010 1 testimony. Could I refer -- top of the page. The first 2 paragraph there says, 3 (Reading): 4 15,000 acre-feet applied to agricultural lands 5 yields approximately 30 to 40 percent return 6 flow to the Stanislaus River, parenthetical, and 7 eventually the San Joaquin River. 8 Do you see that, sir? 9 MR. HILDEBRAND: I see that. I explained when we 10 were discussing it that would apply regardless of whether 11 the return flow went back directly to the Stanislaus, or 12 whether it got to the San Joaquin River via the Tuolumne 13 watershed. 14 MR. SEXTON: I'm a little confused, then, because 15 Mr. Brown asked a clarifying question about return flow and 16 what was intended by your testimony regarding return flow. 17 And I understood you to say that the return flow 18 meant also groundwater recharge which will ultimately find 19 its way back to the river. 20 MR. HILDEBRAND: It doesn't matter what path it uses 21 to get back to the river as long as it gets there. For 22 example, in the South San Joaquin Irrigation District, and 23 this may be true also of Oakdale, there are a good many of 24 their people in their district who elect to use groundwater 25 rather than surface water even though they're entitled to CAPITOL REPORTERS (916) 923-5447 2011 1 it. 2 But if on the other hand you cease to recharge 3 that groundwater, then, they would have to go back to 4 surface water. So there are a number of paths by which the 5 excess applied water in the Stanislaus watershed get 6 returned to the San Joaquin River. We could go through a 7 half dozen of them if you would like. 8 MR. SEXTON: I really wouldn't. I mean what I'm 9 interested in here is in this statement that shows up at 10 the top of the South Delta Exhibit. And I'm afraid I don't 11 know the exhibit number on it. 12 MR. HILDEBRAND: 50. 13 MR. SEXTON: 50, thank you. It looks like that 14 statement is inconsistent with your testimony about what 15 comprises return flow. Am I correct, or am I missing the 16 point here, sir? 17 MR. HILDEBRAND: Well, we may have some semantic 18 problems here, but, no, it is not. 19 MR. SEXTON: It is not correct? 20 MR. HILDEBRAND: It does not conflict. 21 MR. SEXTON: Can you explain why it does not conflict 22 since it doesn't seem to mention anything about groundwater 23 recharge and secretions to the river? 24 MR. HILDEBRAND: I thought I just explained that. 25 The manner in which the excess supplied flow gets back to CAPITOL REPORTERS (916) 923-5447 2012 1 the San Joaquin River are various. There's various ways in 2 which that happens, but whether it goes in or out 3 groundwater or not, it ultimately gets there. The water 4 doesn't disappear. The excess supplied water doesn't just 5 disappear, it's still in the watershed. And water runs 6 downhill and eventually it gets into the river. So there 7 may be a displacement in time, it may follow different 8 paths, but it will get there. This exhibit was just a 9 simplified rendition to illustrate the point. 10 C.O. CAFFREY: Mr. Sexton, I'm sorry to interrupt 11 you. I was just curious how much more time you're going to 12 need. If it's going to be a while we'll probably take a 13 break and come back and continue after the break. 14 MR. SEXTON: I'm finished, Mr. Caffrey. 15 C.O. CAFFREY: I hope not because of my question. 16 MR. SEXTON: No, that's fine. 17 C.O. CAFFREY: All right. Thank you, sir. Let me 18 just find out how much more cross-examination we have here. 19 Do the staff have questions of Mr. Hildebrand? Mr. Howard? 20 MR. HOWARD: Just one. 21 C.O. CAFFREY: Why don't you just go ahead and ask 22 your question. 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 2013 1 ---oOo--- 2 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 3 OF ALEX HILDEBRAND 4 BY STAFF 5 MR. HOWARD: This deals with South Delta Water Agency 6 Exhibit Number 50, again. Can you just go ahead and put it 7 on. 8 C.O. CAFFREY: Giving you a workout. 9 MR. HOWARD: Just briefly, Mr. Hildebrand, what do 10 you believe to be the difference in TDS of the 5,000 11 acre-feet of return water versus the 600,000 acre-feet of 12 water that was stored in New Melones for water quality 13 purposes? 14 MR. HILDEBRAND: There is a difference, of course, 15 but the quality of the source water is so good that it 16 doesn't raise to a substantial degree relative to the 17 salinity standard at Vernalis. And if you leave it in the 18 reservoir and use it the next year, the same thing happens. 19 MR. HOWARD: You mean it's concentrated -- 20 MR. HILDEBRAND: It's going to get concentrated 21 before it gets to Vernalis one way or another, but not to a 22 significant degree, or to a substantial degree I should 23 say. 24 MR. HOWARD: Following up briefly on Mr. Sexton's 25 question regarding the return flows, I gather that your CAPITOL REPORTERS (916) 923-5447 2014 1 testimony is that if you have 5,000 acre-feet and part of 2 it is depercolation and part of it is return flows, that 3 all of that would ultimately return to the river. 4 Just to get a little more detail to make sure I 5 understand what you're saying is that some of the parties 6 are presently taking groundwater. And that if they were to 7 not have that groundwater available, they would go to 8 surface water and in the long-term it would all balance 9 out. 10 Does that account for all of the depercolation in 11 your opinion, or would some of the depercolation water be 12 reapplied and consumptively used? 13 MR. HILDEBRAND: First let's explain what you mean by 14 "depercolation." The groundwater in these areas of Oakdale 15 and South San Joaquin are down. So the -- it isn't going 16 to go very deep. It's still pretty shallow groundwater. 17 And it gets back to the point that the over-applied water 18 doesn't disappear. It doesn't get out of reach of the 19 wells that -- the many wells that are in the area. So it 20 does get pumped back out and reused. And, in fact, if they 21 didn't pump some of it, then they may have too high a water 22 table. 23 So if you just consider the overall mass balance 24 involved here, a certain amount of water enters the system 25 of the precipitation in the Stanislaus basin, certain CAPITOL REPORTERS (916) 923-5447 2015 1 amount of that gets consumed, you're not planning to change 2 that. And the excess supplied water doesn't disappear. 3 It's still in the watershed. It's still upstream of the 4 San Joaquin River. 5 And by one means or another and at one time or 6 another it just gets into the river. And if you let it 7 down the river at a time when we don't have a salinity 8 problem, don't have a problem of meeting downstream 9 diversion rights, that water, then, is taken away from 10 those times when we do have those problems. And there's 11 really not a way to get around that, any kind of hocus 12 pocus doesn't change that. 13 MR. HOWARD: Thank you. That was all. 14 C.O. CAFFREY: Thank you, Mr. Howard. Anything else 15 from the staff? Anything from the Board Members? 16 Mr. Brown. 17 ---oOo--- 18 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 19 OF ALEX HILDEBRAND 20 BY THE BOARD 21 MEMBER BROWN: More clarifying on that, with the 22 groundwater return we're using the surface water, it's like 23 the in lieu project, the conjunctive-use program. Is that 24 what you're referring to? 25 MR. HILDEBRAND: Yes. If you -- if you withdraw the CAPITOL REPORTERS (916) 923-5447 2016 1 groundwater and, then, it gets recharged from surface 2 water. 3 MEMBER BROWN: The million tons of salts that you 4 talked about. 5 MR. HILDEBRAND: Yes. 6 MEMBER BROWN: Is that the total importation of salts 7 from the CVP and State Water Project into the -- or what 8 constitutes that? 9 MR. HILDEBRAND: I'm just talking about the amount of 10 salt that's delivered in the CVP service area, the portion 11 of the CVP service area that is within the San Joaquin 12 service area. And we submitted a lot of testimony on that 13 in early hearings. 14 MEMBER BROWN: Okay. You left the impression that 15 maybe that million tons of salt was going to be 16 recirculated. 17 MR. HILDEBRAND: Oh, no. 18 MEMBER BROWN: How much of that salt goes into 19 depercolation, would you estimate? 20 MR. HILDEBRAND: I don't recall what percentage, but 21 it's a substantial percentage that is just being buried 22 there and salinizing the groundwater in the soils in the 23 root zone in that area. But -- well, I can't recall 24 precise numbers, there's several 100,000 tons a year now 25 that do get into the San Joaquin River largely through salt CAPITOL REPORTERS (916) 923-5447 2017 1 and mud sloughs. And it gets into salt and mud sloughs 2 partly by some subsurface accretion, partly by the tidal 3 drainage that's pumped into those areas. And, then, of 4 course, some just plain spills, but those people don't 5 spill very much. 6 MEMBER BROWN: Okay. I have no further questions. 7 Thank you, Mr. Chairman. 8 C.O. CAFFREY: Thank you, Mr. Brown. Any other 9 questions from any of the other Board Members? All right 10 we'll take our break a little later than usual. 11 Mr. Herrick, you can decide whether or not you're 12 going to have any redirect, if you haven't decided already. 13 MR. HERRICK: I can decide now, there will be no 14 redirect. 15 C.O. CAFFREY: There will be no redirect. All right. 16 We'll come back, then, and consider your exhibits I believe 17 is our next step. Back in 12 minutes. 18 (Recess taken from 10:45 a.m. to 10:57 a.m.) 19 C.O. CAFFREY: Thank you for your patience. We will 20 now go on the record. And good morning, again. I believe 21 we're at the point, Mr. Herrick, where we would ask you to 22 offer at least your one exhibit. I don't know if you have 23 others. 24 MR. HERRICK: Thank you, Mr. Chairman. Yes, I would 25 like to offer South Delta Number 50, but also I believe 37 CAPITOL REPORTERS (916) 923-5447 2018 1 which are selected excerpts from the Draft Anadromous Fish 2 Program, and 38 which were the New Melones permits. We 3 incorporated them by reference into the record, but I don't 4 believe they've been offered and accepted finally into 5 evidence. So it would be 37, 38 and 50. 6 C.O. CAFFREY: All right, sir. Are there any 7 objections as to receiving those exhibits into the record 8 as rebuttal evidence? 9 MR. SEXTON: Object to 50 on the basis that it's not 10 based on anything that Mr. Hildebrand testified to 11 factually. It's based on assumptions, not based on fact. 12 C.O. CAFFREY: All right. Your objection is noted 13 and in the record, Mr. Sexton. Mr. Godwin? 14 MR. GODWIN: Yeah, Mr. Caffrey, I believe that none 15 of South Delta's other exhibits have been offered into the 16 record, yet, either. 17 C.O. CAFFREY: Actually, I believe -- 18 MR. GODWIN: I believe we started to do that at the 19 end of Phase I and he asked to hold that until the end of 20 Phase II. 21 C.O. CAFFREY: Well, actually, we went through all 22 the exhibits a little bit out of order. I believe we went 23 through all the exhibits for Phase II and did accept them 24 all into the record with the exception to that which 25 pertain now to this rebuttal evidence. CAPITOL REPORTERS (916) 923-5447 2019 1 Let's have staff double-check that. Did you have 2 a comment, Mr. Herrick? 3 MR. HERRICK: Yes. For Phase I a number of them -- I 4 don't remember which ones, a number of them were offered 5 and accepted. Alex Hildebrand's testimony for Phase I, was 6 Phase I and II. So we decided to hold that over until 7 Phase II is completed. And after that we decided to have a 8 Phase II and a II-A. The remainder of his testimony is 9 II-A testimony, so that's not been discussed or offered. 10 So I'm not offering that. 11 C.O. CAFFREY: All right. 12 MR. HERRICK: And no other exhibits, since we didn't 13 put on a case in chief in II as opposed to II-A, no other 14 exhibits except those three that I just discussed are being 15 offered or have been presented. 16 C.O. CAFFREY: All right. Thank you. 17 MR. GODWIN: So Exhibit 27 has not been offered; is 18 that right, which is the testimony of Alex Hildebrand? 19 MR. HERRICK: We were holding open the final 20 acceptance of Phase I's testimony until II is done. Now we 21 have a II and II-A. So that has not been put into 22 evidence, that's correct. There was no testimony by 23 Alex Hildebrand in II on a direct case in chief. 24 MR. GODWIN: I said II, I meant II-A. 25 MR. HERRICK: That's being held open. CAPITOL REPORTERS (916) 923-5447 2020 1 C.O. CAFFREY: We went through the evidentiary 2 exhibits after we completed recross of Phase II, I believe, 3 and accepted all the exhibits that were offered, had some 4 discussion on that. And, now, we're in the process of 5 dealing with anything that parties may wish to offer as 6 rebuttal exhibits that had not already been accepted as 7 case in chief exhibits in the first instance. 8 Is that correct, Ms. Leidigh? 9 MS. LEIDIGH: Our records show that the exhibits that 10 have not been accepted yet of South Delta Water Agency 11 are -- 12 C.O. CAFFREY: Wait a minute. Excuse me, 13 Ms. Leidigh. I want to make sure Mr. Herrick has a chance 14 to hear this. 15 MR. HERRICK: Sorry. 16 C.O. CAFFREY: Go ahead, Ms. Leidigh. 17 MS. LEIDIGH: Our records show that the exhibits that 18 have not been accepted yet of South Delta Water Agency are 19 37 and 50. I don't see a 38 on this list. And it's not 20 clear to me whether 28 was accepted or not. I think it 21 was. 22 MR. HERRICK: Which is 28? 23 MS. LEIDIGH: Qualifications of Alex Hildebrand. 24 MR. HERRICK: I believe that was offered and accepted 25 in Phase I. CAPITOL REPORTERS (916) 923-5447 2021 1 C.O. CAFFREY: I believe it was, also. 2 MS. LEIDIGH: Okay. 3 MR. HERRICK: Without confusing, it's my recollection 4 that I asked the New Melones permits be incorporated into 5 the record by reference last week. And I thought we gave 6 them the Number 38. 7 MS. LEIDIGH: We're going to check that. We don't 8 have it right here. 9 C.O. CAFFREY: All right. While she's checking that 10 let me go to Mr. Godwin, did you have a -- 11 MR. GODWIN: I'm still confused, then. Is Exhibit 27 12 in or not? 13 MR. HERRICK: Well -- 14 C.O. CAFFREY: Ms. Leidigh, is Exhibit 27 in? Excuse 15 me, Mr. Herrick. 16 MS. LEIDIGH: 27 was introduced but was not 17 completely testified to and has not yet been accepted in 18 evidence. And my belief is that Mr. Herrick isn't offering 19 it right now. 20 C.O. CAFFREY: You going to offer it in II-A if we 21 have II-A? 22 MR. HERRICK: I will offer it in II-A. I just 23 assumed that the Board will allow us to reference 24 Mr. Hildebrand's testimony as to Phase I for the briefing 25 for Phase I simply because II-A has now been delayed, CAPITOL REPORTERS (916) 923-5447 2022 1 before that will be accepted in evidence. I don't think 2 that's inappropriate. 3 C.O. CAFFREY: I know of no problem. Is that 4 satisfactory, Ms. Leidigh? 5 MS. LEIDIGH: No problem. 6 C.O. CAFFREY: She knows of no problem either, so we 7 can proceed that way. 8 MR. HERRICK: I appreciate it. And to clarify: 9 Nothing has been offered by us as a case in chief including 10 Alex's testimony in Phase II. We had a rebuttal case, but 11 we did not offer any of our exhibits in a case in chief in 12 Phase II. 13 C.O. CAFFREY: Mr. Godwin, what was it, 27-A, was 14 that your reference? 15 MR. GODWIN: 27 -- 16 C.O. CAFFREY: Which is not in -- 17 MR. GODWIN: -- is the testimony of Alex Hildebrand, 18 correct? 19 MR. HERRICK: Correct. 20 MR. GODWIN: So that's not in evidence yet? 21 MS. LEIDIGH: The written testimony has not been 22 offered in evidence. 23 MR. HERRICK: In II. 24 MS. LEIDIGH: And has not been accepted. 25 MR. GODWIN: Or in I. CAPITOL REPORTERS (916) 923-5447 2023 1 MR. HERRICK: As I just said since it's one document 2 and the proceedings have been split before we were able to 3 do II, before we were able to give our case in chief 4 originally for II, now for II-A, I assume there's no 5 objection to me making references to Alex's testimony for 6 the closing arguments for Phase I even though that hasn't 7 been accepted in evidence. But the reason it hasn't been 8 accepted into evidence is because we rescheduled how we're 9 formulating this, that's okay. But it's -- part of 27 will 10 be referred to in Phase I's close. 11 C.O. CAFFREY: Mr. Godwin, is that satisfactory? 12 MR. GODWIN: Yes. 13 C.O. CAFFREY: All right. Thank you, sir. Do you 14 have an answer, Ms. Whitney or Ms. Leidigh, or are you just 15 looking for it now, going through the notes for a moment to 16 see? Mr. Stubchaer? Mr. Stubchaer keeps good records. 17 C.O. STUBCHAER: Well, I just have kind of a 18 chronology. On July 14th at 11:14 a.m. South Delta Water 19 Agency offered its exhibits and they were accepted after 20 objections, but I don't have the exhibits identified. 21 MS. WHITNEY: We do. 22 C.O. CAFFREY: Thank you, Mr. Stubchaer. 23 MS. WHITNEY: My records show they offered Exhibit 9, 24 but it was not accepted. They offered Exhibits 11 through 25 23, those were accepted. 24 was offered but not accepted, CAPITOL REPORTERS (916) 923-5447 2024 1 yet. 25 and 26 were offered and accepted. 27 was offered 2 but not accepted, yet. 28 through 33 were offered and 3 accepted. Let's see 36 and 37 were offered, but not yet 4 accepted. And I don't have a record of 38. 5 MR. HERRICK: Okay. It's my recollection after one 6 of the cross-examinations, I believe it was of 7 Lowell Ploss, that I asked for the New Melones permits to 8 be incorporated by reference. If they're not designated 9 38, can we do that now? That's what I was trying to do. 10 C.O. CAFFREY: I don't want to add further confusion, 11 but I thought 38 was a number you were using internally 12 somewhere for future evidence you were going to present. 13 That's why we gave the other exhibit Number 50. 14 MR. HERRICK: That's 39 through something. 15 C.O. CAFFREY: All right. You want to give it 38? 16 MS. WHITNEY: Any objections? 17 C.O. CAFFREY: Is there any objections to 18 incorporating that exhibit by reference into the record? 19 Seeing and hearing none -- I'm sorry, Mr. Birmingham, did 20 you have an objection? 21 MR. BIRMINGHAM: No. 22 C.O. CAFFREY: Then, let's see, we have 50 and we 23 have 38, then; is that correct? 24 MR. HERRICK: 37 were portions of the Draft 25 Anadromous Fish Program, pages 90 through 96. CAPITOL REPORTERS (916) 923-5447 2025 1 C.O. CAFFREY: All right. 2 MR. HERRICK: 38 would be the two New Melones 3 permits. And -- 4 C.O. CAFFREY: All right. I'm sorry, I interrupted 5 you. 37 and 38 and 50. 6 MR. HERRICK: And 50. 7 C.O. CAFFREY: And we duly note on the record and 8 recognize Mr. Sexton's objection to 50. With that, we will 9 accept into the record those three exhibits. All right. 10 Thank you. 11 MR. HERRICK: Thank you, Mr. Chairman. 12 C.O. CAFFREY: Thank you, Mr. Herrick. Now, I 13 believe we are at that point where we can hear closing 14 arguments. Does anybody have a different understanding? 15 All right. I presume that the San Joaquin Group wishes to 16 make a closing argument, or arguments. What -- I notice 17 that Mr. O'Laughlin is not here. Is there a spokesperson? 18 MR. SAWYERS: Mr. Chairman, Gary Sawyers, I'll be 19 making the closing argument for the River Group Authority. 20 In order to save time, if it meets with the Chair's 21 satisfaction, we would be willing to waive the customary 22 privilege of going first and simply reserve our comments 23 until the end of the closing arguments and close at that 24 time. 25 C.O. CAFFREY: How many arguments do you wish to CAPITOL REPORTERS (916) 923-5447 2026 1 make? The reason I'm asking that is because we have kind 2 of a hybrid situation with a combined case in chief with 3 the San Joaquin Group. And we did say there was a 4 20-minute limitation on closing statements, but I think 5 that I would do that by -- what I'm saying is if you desire 6 to have more than one closing statement, I'm not 7 necessarily going to penalize you. But before I make that 8 judgment I would like to know how many there are going to 9 be. 10 MR. SAWYERS: The San Joaquin River Group Authority 11 will only make one closing argument, but there will 12 undoubtedly be others. 13 C.O. CAFFREY: However, you were part of a broader 14 case in chief. All right. 15 MR. BRANDT: The Department of Interior would like to 16 make a closing argument. 17 C.O. CAFFREY: All right. 18 MR. CAMPBELL: Department of Fish and Game would like 19 to make a closing argument. 20 C.O. CAFFREY: Mr. Campbell. 21 MR. GARNER: Eric Garner on behalf of the State Water 22 Contractors. We will have a brief closing argument. 23 MR. BIRMINGHAM: Westlands Water District and the San 24 Luis Delta-Mendota Water Authority will also have a brief 25 closing argument. CAPITOL REPORTERS (916) 923-5447 2027 1 C.O. CAFFREY: Thank you, Mr. Birmingham. And I left 2 out -- I'm sorry, sir, you are Mr. Sawyers; is that 3 correct? 4 MR. SAWYERS: That's correct, Mr. Chairman. 5 C.O. CAFFREY: Mr. Sandino. Who else? 6 MEMBER BROWN: Ms. Koehler stood up. 7 MR. JACKSON: Mr. Caffrey, if you could, the -- there 8 was a conversation shortly before we quit on Thursday last 9 week indicating that there was not going to be a finding of 10 equivalency; is that the case? 11 C.O. CAFFREY: That's correct. I know of no 12 requirement that the Board do that, nor am I sure what 13 procedure might be required in order for it to occur. 14 MR. JACKSON: Okay. In that particular case I will 15 waive closing. 16 C.O. CAFFREY: You're not going to make a closing 17 argument? 18 MR. JACKSON: Not if we're not directed. 19 C.O. CAFFREY: Let me just tell you what my original 20 inclination was to hear the two cases in chief first. And, 21 then, go to the other closing arguments. Is there any 22 objection to that? That's our usual procedure. And I 23 don't know why we wouldn't do that, which means I would 24 hear from the grouping, so to speak, of individuals that 25 presented themselves as part of the original case in chief. CAPITOL REPORTERS (916) 923-5447 2028 1 I would, then, go to Mr. Suyeyasu, if he wishes to make a 2 closing argument. 3 Do you, sir? 4 MR. SUYEYASU: Yes. 5 C.O. CAFFREY: All right. And then after that we 6 would go to others. So I have the following individuals as 7 part of the first grouping of closing statements, not 8 necessarily in this order, but I have: Campbell, Brandt, 9 Garner, Birmingham, Sawyers and Sandino. Is that a fair 10 grouping? 11 MR. BIRMINGHAM: I was not part of that case in 12 chief, neither Westlands nor the Authority were part of 13 that case in chief. It may be an appropriate decision to 14 include us in that grouping, because we are parties to the 15 agreement. 16 C.O. CAFFREY: Do you have any objection to being 17 included, Mr. Birmingham? 18 MR. BIRMINGHAM: No. 19 C.O. CAFFREY: All right. Mr. Sandino, did I 20 misplace you? 21 MR. SANDINO: We didn't present a case in chief, 22 but we are signatories to the agreement. 23 C.O. CAFFREY: I just realized that. Excuse me just 24 a moment. All right. Then in the first grouping we will 25 have: Campbell, Brandt, Garner and Sawyers and then CAPITOL REPORTERS (916) 923-5447 2029 1 Mr. Birmingham. And then we will go to Mr. Suyeyasu. And, 2 then, we will have Mr. Sandino. 3 And are there others that wish to make closing 4 arguments? Mr. Porgans, Ms. Koehler, Mr. Nomellini, 5 Mr. Herrick. Anybody else? All right. Let's go with -- 6 let's go in this order: Mr. Sawyers, Mr. Campbell, 7 Mr. Brandt, Mr. Garner, Mr. Birmingham and then 8 Mr. Sandino, Mr. Porgans, Ms. Koehler, Mr. Nomellini, and 9 Mr. Herrick. 10 I think I counted -- 11 MR. SUYEYASU: Mr. Caffrey, I think I got left off. 12 C.O. CAFFREY: Did I leave you out, I'm sorry, 13 Mr. Suyeyasu. You would come after Mr. Birmingham. I 14 apologize. 15 MR. SUYEYASU: Thank you. 16 MR. ROBBINS: Mr. Chairman? 17 C.O. CAFFREY: Yes, sir. 18 MR. ROBBINS: I wonder if I might persuade the Chair 19 to change that order. Since the notice of this hearing 20 supposedly gets to the proponents of the River Group, the 21 burden of going forward in this matter, convincing the 22 Board that it merits further consideration, I believe it 23 might be appropriate for the River Group Authority to have 24 the final argument. 25 C.O. CAFFREY: One way to do that would be -- hang on CAPITOL REPORTERS (916) 923-5447 2030 1 just a moment. All right. I'm going to start out by 2 saying I don't care what the order is. And I'm following 3 our standard procedure. And I'm not swayed by who goes 4 first or who goes last. And I don't think any of the Board 5 Members are. I think we're swayed by the weight and the 6 relevance of the argument. 7 However, Ms. Leidigh had earlier suggested to us 8 during the break that one process we might follow, and now 9 I'm inclined to do that, would be to allow a five-minute 10 response going back through the list after each of the 11 closing arguments. In that case, we will do that, then. 12 And we will reverse the order. So the order that I named, 13 we will do that for the 20-minute closing statements. 14 And, then, we will go to five-minute responses, if 15 anybody wishes to do so. And we will go in the opposite 16 order. All right. With that, then, Mr. Sawyers, are you 17 ready to come forward, then? Be mindful everyone, please, 18 that last week when we closed we agreed, we more than 19 ruled, we agreed that there would be a 20-minute limitation 20 on each of the closing statements or arguments, if you 21 will. 22 So we will start the clock now, Mr. Sawyers. Good 23 morning, sir, please, proceed. 24 MR. SAWYERS: Good morning, Mr. Chairman and Members 25 of the Board. I'm Gary Sawyers. For the record I CAPITOL REPORTERS (916) 923-5447 2031 1 represent the Friant Water Users Authority, which is one of 2 the seven members of the San Joaquin River Group Authority. 3 And as I mentioned earlier, I'm here to present the closing 4 argument on behalf of the San Joaquin River Group 5 Authority. 6 Over the past seven days of testimony we've heard 7 a great deal about the San Joaquin River Agreement. We've 8 looked at technical details. We looked at biology and 9 hydrology and sometimes it seems we've looked at every 10 nuance of every semicolon in the document. That evidence 11 is all extremely important, but I think it's important for 12 the Board to take a step back for a moment and understand 13 the context in which the agreement is brought before you. 14 I don't need to remind the Board that this year 15 marks the 12th birthday of this particular Bay-Delta 16 proceeding. And, of course, the issues that underlie that 17 proceeding are substantially older and have a great deal 18 more history. And they certainly rank with the most 19 contention water issues that the State has ever seen. 20 The San Joaquin River Agreement and the VAMP are 21 presented to you today and during this entire proceeding as 22 a departure from the traditional almost always unsuccessful 23 adversarial approach to resolving water rights in the state 24 and particularly with respect to the Bay-Delta. And 25 they're offered as a way of resolving what is probably the CAPITOL REPORTERS (916) 923-5447 2032 1 most difficult piece of the Bay-Delta puzzle, that being 2 the San Joaquin River basin. 3 Now, developing the San Joaquin River Agreement 4 and the VAMP were certainly not easy and not without risk 5 to the participants. They dedicated enormous human and 6 economic resources to building consensus rather than 7 preparing for a water rights battle. And they did so to 8 respond to Governor Wilson's articulated water policy of 9 agricultural, urban and environmental interests all getting 10 better together. 11 They also did it in response to the Board's 12 admonition to the stakeholders that the parties would be 13 well served to develop settlement agreements to implement 14 the 1995 Water Quality Control Plan rather than to face 15 contentious and costly and protracted water rights 16 proceedings. 17 The San Joaquin River Group Authority and the 18 other proponents of the San Joaquin River Agreement believe 19 that agreement achieves environmental protection in the 20 Delta, but it also calls for careful and considered 21 experimentations that will provide hard science upon which 22 the Board can base future San Joaquin River side Delta 23 standards. The agreement is based on mutual respect, 24 compromise and understanding. And it was forged after many 25 many, many, many months of very difficult negotiation. CAPITOL REPORTERS (916) 923-5447 2033 1 It also provides for a launching pad to move 2 forward with other programs like the Shrimp Program, 3 CalFed, CVPIA implementation and anadromous fish 4 restoration, all of this, and it can be implemented by 5 April 1st if the Board is inclined to adopt it. I think 6 it's fair to say that the San Joaquin River Agreement is 7 truly a remarkable achievement. 8 Now, to show their support for that remarkable 9 achievement, an incredible coalition of water interests 10 from throughout the state have executed a formal statement 11 of support which the Board is familiar with and which has 12 been introduced into evidence. As an aside, I have to tell 13 you that I don't think there's another piece of paper on 14 the planet that bears the signatures of all of the parties 15 that have signed the Statement of Support. And that I 16 think is testimony to the overwhelming coalition that is 17 advancing the San Joaquin River Agreement before you. 18 Most recently the Department of Water Resources, 19 the Westlands Water District, and San Luis and 20 Delta-Mendota Water Authority have added their names to the 21 Statement of Support. And a number of other parties 22 including a wide range of Sacramento Valley interests have 23 also expressed their support. Now, the agreement was first 24 presented to the Board in its totality at the April 25 workshop. And since that time even more entities have CAPITOL REPORTERS (916) 923-5447 2034 1 expressed their endorsement of the agreement as being the 2 best means for achieving fishery resource restoration in 3 the San Joaquin River basin. 4 The San Joaquin River Group Authority intends to 5 continue working with other interests as -- in an effort to 6 try to resolve Bay-Delta issues through the agreement. We 7 also believe that the agreement is going to continue to 8 garner support assuming we move forward into a Phase II-A. 9 We believe that because the agreement, in our opinion, 10 easily withstood very critical examination through this 11 Phase II. We think the last seven days of this hearing 12 have demonstrated unequivocally that the San Joaquin River 13 Agreement can and will work. 14 Now, in that content I'd like to turn to the 15 actual testimony that was presented during Phase II. And 16 it seems to me that three conclusions clearly emerged. 17 First, the San Joaquin River Agreement and VAMP provide an 18 equivalent level of protection to that afforded to the 1995 19 Water Quality Control Plan. Second, the San Joaquin River 20 Agreement and VAMP are feasible, they're viable, they can 21 be implemented. And, third, there really are no genuine 22 defects until the San Joaquin River Agreement and the VAMP. 23 Now, with respect to equivalency the Board heard 24 unconverted testimony from a panel of fishery biologists 25 comprised of Bill Loudermilk from Department of Fish and CAPITOL REPORTERS (916) 923-5447 2035 1 Game; Marty Kjelson from Fish and Wildlife Service; Chuck 2 Hanson from the State Water Project Contractors; and 3 Bruce Herbold from the Environmental Protection Agency. 4 That's a pretty wide cross-section of state and 5 federal and local agencies. And each one of those 6 gentlemen is an expert in San Joaquin River fisheries and 7 Delta issues. They each concluded that, in fact, the San 8 Joaquin River Agreement and the VAMP provided an equivalent 9 level of protection by doing three things. First, 10 increasing the baseline flows in the San Joaquin River. 11 Second, by decreasing export pumping. And, third, 12 installing the head of Old River barrier. 13 Not a single fishery biologist was presented by 14 any other party to rebut any of that testimony. Some 15 parties did attempt to argue during cross-examination that 16 the flows in the San Joaquin River under the San Joaquin 17 River Agreement would in some instances be less than they 18 would be under the Water Quality Control Plan. But those 19 parties uniformly failed to consider the exports reductions 20 and the installation of the head of Old River barrier. 21 Please, remember that the San Joaquin River 22 Agreement is a package. It is not simply a flow mechanism. 23 Now, a good example of that occurred during the testimony 24 of Pat Brandes. Ms. Brandes was questioned by a number of 25 parties about testimony she presented which, essentially, CAPITOL REPORTERS (916) 923-5447 2036 1 summarized her conclusions that increased pumping or, 2 perhaps, even pumping at the current levels with the 3 installation of the head of Old River barrier could cause 4 some problems for at least some species. 5 Unfortunately, the questioners didn't go to the 6 next sentence in her testimony. The next sentence in her 7 testimony says, "However, if you coupled decreased exports 8 with the installation of the head of Old River barrier, San 9 Joaquin River salmon smolt survival improves and no other 10 species would be impacted." 11 Likewise, Dr. Herbold and Hanson testified they 12 looked at the benefits and risks of the San Joaquin River 13 Agreement and found them -- and this is a quote -- "on the 14 whole close," closed quote, with export reductions and the 15 head of Old River barrier installed to provide equivalent 16 protection. 17 Now, just a word about flows. Even though the San 18 Joaquin River Agreement is, in fact, a package, I wanted to 19 note that the modeling that you were provided with shows 20 that under historical conditions there would have been 9 21 years out of the 70 years of hydrology when flow would have 22 been less, perhaps, under the San Joaquin River Agreement 23 than under the 1995 Water Quality Control Plan. But five 24 of those years came during the 1987 through 1992 drought. 25 And that conclusion does not take into the consideration CAPITOL REPORTERS (916) 923-5447 2037 1 the ability of Bureau of Reclamation to acquire additional 2 water on a yearly basis to provide for target flows under 3 the San Joaquin River Agreement. 4 One more word about the head of Old River barrier. 5 I would remind you of the testimony of Ms. Brandes of 6 Dr. List and Dr. Morhardt, all of which came together to 7 put forth any rebuttal case that the installation of the 8 head of Old River barrier protects San Joaquin River salmon 9 smolts. I won't take the time here to list all the 10 various exhibits, but I would commend them to your 11 attention; the simple conclusion is that the head of Old 12 River barrier aids and substantially improves survivability 13 of San Joaquin River smolts. 14 Now moving on, relative to the feasibility of the 15 San Joaquin River Agreement and the VAMP there was 16 unconverted testimony presented by a group of hydrologists 17 to the Board that demonstrated that the agreement can and 18 will work. It is feasible. The water will be there. And 19 there was absolutely no witness offered by any other party 20 to testify to the contrary. The simple solution is: The 21 agreement can be implemented if the Board elects to adopt 22 it. 23 Now, with respect to the documents themselves, 24 some parties unsuccessfully attempted to display what they 25 characterized as flaws in both the San Joaquin River CAPITOL REPORTERS (916) 923-5447 2038 1 Agreement and the VAMP both during the cross-examination 2 and during rebuttal. Those documents are well-crafted 3 solid documents that don't contain any material defects. 4 Now, I want to briefly go through some of the criticisms 5 that were leveled at the documents during cross-examination 6 and during rebuttal. 7 First, the issue of money. We heard a great deal 8 about how the San Joaquin River Group shouldn't be paid, or 9 should be paid less, or should be paid from a different 10 source from the water it intends to make available under 11 the San Joaquin River Agreement. Now, I frankly question 12 whether that is a proper issue to bring before this Board. 13 But regardless of that, it's important to remember that the 14 testimony of Lowell Ploss, which was verified by Spreck 15 Rosekrans of EDF, was clear and uncontested. 16 The CVPIA funds that are proposed to be used is 17 the principal source for the payments were designated to do 18 exactly what those funds are proposed to do under the San 19 Joaquin River Agreement: To purchase water which would not 20 otherwise be available for environmental purposes. 21 Precisely what the San Joaquin River Agreement proposes. 22 There doesn't seem to be any better use for those funds 23 that anyone can propose. 24 Next, the water quality issue. We heard a great 25 deal including this morning about South Delta Water Agency CAPITOL REPORTERS (916) 923-5447 2039 1 and in other testimony Central Delta water quality. Those 2 parties have criticized the San Joaquin River Agreement and 3 the VAMP, because they believe it does not immediately and 4 completely solve the problem as they see it. 5 Now, it is uncontroverted that the Delta water 6 quality will improve under the San Joaquin River Agreement 7 I'd refer you to Dan Steiner's testimony, which is San 8 Joaquin River Group Authority Exhibit 11, which shows that 9 in every October where, under current conditions, there is 10 a noncompliance situation, there is compliance under the 11 San Joaquin River Agreement. And that improvement doesn't 12 even take into consideration the almost 100,000 acre-feet 13 of New Melones' yield, which can be reallocated for an 14 authorized purpose including water quality by the Bureau of 15 Reclamation. 16 We also have heard about summer return flows in 17 the South Delta area. Now, without getting into a 18 protracted legal argument, I think the Board is aware of 19 the controversy over the San Joaquin -- excuse me, over the 20 South Delta rights to return flow. We contend, I think the 21 Board is aware, that they have no such rights prescriptive 22 or otherwise. So the summer return flow issue is really a 23 nonissue. 24 However, more to the point, Mr. Steiner's 25 testimony clearly indicates that there are no reductions in CAPITOL REPORTERS (916) 923-5447 2040 1 summer flows if the San Joaquin River Agreement is 2 implemented. However, for the Board's information, if that 3 continues to be an issue, when we reach Phase V the San 4 Joaquin River Group Authority will present testimony on 5 that issue if need be. 6 Now, the next criticism of the San Joaquin River 7 Agreement we heard had to do with forecasted flows. We 8 heard that the technical committee that's been established 9 by the San Joaquin River Agreement simply can't be trusted 10 to determine existing flows and that instead that the 11 60/20/20 index should be used. But that index itself is 12 based in part on forecasted flows much like the existing 13 flow index that's going to be included in the San Joaquin 14 River Agreement. 15 In addition, there really is very little 16 discretion with respect to the determination of existing 17 flows under the San Joaquin River Agreement. Consider 18 this, New Melones, Don Pedro and New Exchequer all have 19 clearly articulated minimum release requirements. The 20 Bureau of Reclamation operates New Melones to the standards 21 set forth in the Interim Operations Plan. And all of the 22 tributary dams are required to operate to Corps of 23 Engineers' flood control specifications. 24 In addition, New Don Pedro and New Exchequer have 25 very clear FERC release requirements. And New Exchequer on CAPITOL REPORTERS (916) 923-5447 2041 1 top of that has flow mandates under Davis-Brunsky. Now, 2 with all of that mandated there is, essentially, no 3 manipulation which is possible to the existing flow 4 calculation under the agreement. In addition, there is 5 really nothing unusual or radical in the use of existing 6 flow rather than the 60/20/20 index to establish in-stream 7 flow requirements. 8 As you know, the Delta outflow requirements are 9 based on existing flows. And in the San Joaquin River 10 basin only New Don Pedro, under its FERC agreement, uses 11 the 60/20/20 index to fix flows. Most other reservoirs in 12 the basin use operator-measured reservoir inflows as a 13 basis for determining minimum in-stream flows. 14 In addition, Mr. Burke from the Bureau of 15 Reclamation made a particularly important point when he 16 testified before you that any attempt to manipulate 17 existing flows would be easily recognized by the technical 18 committee. Please, keep in mind that in the room when 19 existing flows are going to be calculated will be the 20 Bureau of Reclamation, the Department of Fish and Game, the 21 Fish and Wildlife Service, any environmental groups that 22 have executed the San Joaquin River Agreement; and for that 23 matter, given they will be open meetings, any other group 24 that wishes to attend. There seems to be very little 25 opportunity to pull one over on the public. CAPITOL REPORTERS (916) 923-5447 2042 1 And most importantly, the parties to the San 2 Joaquin River Agreement that have worked so hard to make 3 this reality are extremely unlikely to put the agreement at 4 risk by trying to hoodwink the public, or the other parties 5 to the agreement. It's just farfetched. There really is 6 no problem with the notion of existing flows. 7 Finally, we've heard about this issue of 8 fragility. There's been suggested that the San Joaquin 9 River Agreement is too fragile and that it's somehow 10 destined to fly apart into pieces within a matter of a few 11 years. First, that's simply unsupported speculation. And, 12 second, it fails to understand the extraordinary high level 13 of dedication that the parties to the agreement have to 14 making the agreement a success. 15 The parties did not work as hard as they've worked 16 for the last three years to put this agreement together to 17 see it fall apart. And their desire for success is not 18 going to end if the State Board adopts the agreement. 19 They've invested heavily in ensuring that the agreement 20 works. And the so-called fragility that you've heard about 21 is, in fact, the strength of the document. It ensures that 22 the parties are going to work hard together, presumably in 23 good faith, to resolve any issues that arise so that the 24 consensus process that generated the agreement in the first 25 place continues and that there will be a successful CAPITOL REPORTERS (916) 923-5447 2043 1 outcome, both of the VAMP experiment and the other actions 2 that are called for under the agreement. 3 So if all of that hadn't been said, where are we? 4 Well, we have a historic opportunity in the San Joaquin 5 River Agreement that's born of unprecedented coalition of 6 water rights holders who, as characterized by Mr. Burke 7 from the Bureau, have developed a new spirit of cooperation 8 on the San Joaquin River. 9 The San Joaquin River Group Authority and its 10 members look forward to an opportunity to providing the 11 Board with still more information about the agreement and 12 the VAMP. We look forward to an opportunity to comparing 13 it to the other alternatives and to demonstrating to you 14 that it is far superior to any other alternative that might 15 be selected as an implementation measure of the 1995 Water 16 Quality Control Plan. 17 The specific issue before the Board today, of 18 course, is whether or not the San Joaquin River Agreement 19 merits further consideration. We respectfully submit that 20 it clearly does. And we ask that you give us the 21 opportunity to continue with the successes that we've 22 enjoyed to date with the San Joaquin River Agreement by 23 scheduling Phase II-A at your earliest convenience so that 24 we can proceed. 25 Thank you very much. CAPITOL REPORTERS (916) 923-5447 2044 1 C.O. CAFFREY: Thank you, Mr. Sawyers. Good morning 2 sir. 3 MR. CAMPBELL: Good morning, Mr. Chairman and Members 4 of the Board. My name is Matthew Campbell. I'm a Deputy 5 Attorney General and represent the Department of Fish and 6 Game in these proceedings. 7 DFG has signed the Letter of Intent to support the 8 San Joaquin River Agreement and the Vernalis Adaptive 9 Management Plan component. For the reasons expressed in 10 the testimony of biologists Mr. Loudermilk, Dr. Herbold, 11 Dr. Hanson, Dr. Kjelson, and Ms. Brandes, DFG believes that 12 successful implementation of the San Joaquin River 13 Agreement and VAMP will provide equivalent protection for 14 the San Joaquin River fall-run salmon to that provided by 15 the 1995 Bay-Delta Water Quality Control Plan. 16 In the opinion of several of the biologists who 17 testified -- testified in support of the agreement and in 18 support of the Vernalis Adaptive Management Plan, including 19 Mr. Loudermilk and Dr. -- Mr. Loudermilk from the 20 Department of Fish and Game and Dr. Kjelson of U.S. Fish 21 and Wildlife Service, the potential biological benefits of 22 the San Joaquin River Agreement and the Vernalis Adaptive 23 Management Plan are wholly dependent upon whether the 24 Vernalis Adaptive Management Plan is successfully 25 implemented by the parties. The biologists also testified CAPITOL REPORTERS (916) 923-5447 2045 1 as to some of the components necessary for the biological 2 success of the San Joaquin River Agreement and VAMP. 3 For example, as Mr. Loudermilk testified, to be 4 successful biologically the San Joaquin River Agreement and 5 VAMP parties must develop an adequate supply of San Joaquin 6 River basin salmon smolts necessary to implement the VAMP 7 study and other required studies in the San Joaquin River 8 basin. And the VAMP studies must be integrated with 9 existing required fishery studies in the San Joaquin River 10 tributaries. 11 DFG expects that these important concerns 12 regarding the implementation of VAMP and others that may 13 rise during the effective period of the San Joaquin River 14 Agreement can be resolved by the parties through their 15 participation in and use of the processes set forth in the 16 agreement and the Vernalis Adaptive Management Plan, 17 including the technical committee, the management 18 committee, the dispute resolution process and, hopefully 19 not but if necessary, termination of the San Joaquin River 20 Agreement and return to this Board. 21 Consequently, DFG recommends that the Board 22 determine that the San Joaquin River Agreement and its 23 Vernalis Adaptive Management Plan component has sufficient 24 merit to warrant further review by the Board in Phase II of 25 these proceedings. CAPITOL REPORTERS (916) 923-5447 2046 1 In closing, the Department of Fish and Game would 2 also like to remind the Board and the parties that these 3 Bay-Delta water rights hearings as noticed by the Board are 4 not intended to encompass consideration of specific 5 in-stream flow requirements necessary to protect fish and 6 wildlife in the upstream tributaries of the Bay-Delta. 7 Accordingly, DFG expressly reserves its rights to seek 8 in-stream flow requirements as necessary to protect those 9 public trust resources. 10 Thank you for your consideration of DFG's 11 testimony, exhibits, and this argument. 12 C.O. CAFFREY: All right. Thank you, Mr. Campbell. 13 Mr. Brandt. Good morning, sir. 14 MR. BRANDT: Good morning. I guess I should start, 15 perhaps, thanking the opponents: Mr. Nomellini, 16 Mr. Jackson, Mr. Herrick, Mr. Suyeyasu, Ms. Koehler. I 17 think they've been very helpful in making one point: San 18 Joaquin River is a place that is rife with potential 19 conflicts. 20 They, in fact -- they sort of made my point 21 about -- that I brought up in my opening argument about how 22 that there just is so much potential for conflict. It 23 doesn't stop when this Board necessarily makes an order, as 24 we've all been through we're been through the litigation. 25 I guess I owe them a word of thanks for that. We put on a CAPITOL REPORTERS (916) 923-5447 2047 1 positive affirmative case about biologists talking about 2 the equivalence and taking care of the fishery resources 3 and taking care of the public trust. We -- you heard from 4 hydrologists, some ours, some San Joaquin River Group's, 5 about the water impacts, you heard the good and the bad. 6 You heard also from one of our operators, the guy 7 who's actually there on the ground in that -- in that 8 hydrologist group trying to figure out how to make this 9 river work to meet the Delta standards. And you heard him 10 talk about how this is the best way to work through the 11 difficulties and the challenges of working a number of 12 different tributary rivers to make sure Vernalis is met. 13 You also heard about opponents. You know they did 14 do a number of things, of course, in this phase as we 15 decided they did not put on sort of the affirmative case 16 of, "What should we do instead?" You heard references to 17 other alternatives and questions about possibly, "Couldn't 18 it be done." You heard all those kinds of things. I'm 19 sure we'll hear more in Phase II. 20 You also sat through, as we all did, through, 21 "blistering" is the word someone has used along the way, 22 cross-examination, asking all sorts of questions. 23 Sometimes I thought I was in discovery, because I look back 24 and I say, "What were they getting?" Not necessarily from 25 my perspective, and I think you'll see as you review the CAPITOL REPORTERS (916) 923-5447 2048 1 record, not very much, did they get much out of the 2 cross-examination. 3 They did accomplish something. They pointed out 4 some problems, which, you know, I think I acknowledged in 5 my opening statement that this is not the perfect -- the 6 answer, the only answer. They pointed out that there are 7 some other alternatives, and there are. There are 8 weaknesses with those as well and we'll get into those in 9 II-A, I'm sure. 10 They noted that there's not as much flow at 11 Vernalis in some years, both under the way that it's been 12 done, which is relying on Bureau of Reclamation as well as 13 under this way. There are some years that Vernalis may not 14 be met in certain months. And that is a risk. They 15 pointed out some weaknesses in some models. They're right, 16 any time you use a model there are inherently -- it relies 17 on the assumptions. You're going to need -- you will have 18 the opportunity to look at that more carefully I'm sure. 19 And we had one case opposing, which brought up the 20 theory of why it might not work, you know, if you want to 21 believe the Bogeyman in the closet theory. But when it 22 comes down to it, one of the key pieces that we need to 23 remember is that in this agreement the Bureau of 24 Reclamation and Department of the Interior is stepping up 25 to the plate to take responsibility. You heard that from CAPITOL REPORTERS (916) 923-5447 2049 1 Lowell Ploss. You heard that from other witnesses as well. 2 When it comes down to it, the Department of Interior is the 3 one that steps up to the plate. Yeah, there may be -- if 4 you want to believe the Bogeyman in the closet, yeah, 5 there's a possibility that maybe there's some way that 6 someone could do something and adjust something. But you 7 also heard John Burke talk about how you can tell that as 8 an operator on the ground, or I guess I should say in the 9 stream. 10 So I guess it comes back to, thank you for that, 11 pointing out all the potential for conflict, because that 12 brings us to the point of why the San Joaquin River 13 Agreement is crucial at this point. It brings us to the 14 point that we need a way to resolve those conflicts so that 15 we're not constantly back here and spending days and days 16 in the cross-examination. We need a way that we could be 17 out in the field resolving those conflicts. Conflicts 18 don't stop necessarily, as you may recall, from D-1485 and 19 others, they don't stop when you issue an order 20 necessarily. There's still so much potential for conflict, 21 whether that's litigation, whether that's just discussions 22 and meetings, all sorts of things. 23 But it ultimately comes down to responsibility of 24 Interior. Whether it's under this agreement or whether you 25 look at the history, Interior is the one that has had to CAPITOL REPORTERS (916) 923-5447 2050 1 step up to the plate to take responsibility. And I think 2 in this context we are agreeing to do that. We deserve 3 some, I think, at least some trust to get some assistance 4 in the way that we think it's the most effective way to do 5 that. How we choose to get our assistance, or how much we 6 pay while it is -- it may be a consideration in other 7 judgments that you make, but it's ultimately a judgment 8 that we need to make as well, because we are the ones 9 stepping up to take the responsibility. 10 And it establishes that structure for conflict 11 resolution, whether it's John Burke's testimony about how 12 you do it in a technical committee and the hydrologists, or 13 the fishery people talking about fishery issues, or 14 Mr. Campbell talking about the issues that they want to 15 talk about, all those kinds of things, this sets up a 16 structure for us to resolve those conflicts. And it also 17 sets up a structure, as Mr. Robbins discussed in his 18 testimony, for conflict resolution. When it does come down 19 to a conflict, how do you resolve that? And it puts a lot 20 of incentive in also both formally in structure as well as 21 the incentive of not wanting to kill an agreement. It puts 22 a lot of possibility for working through those problems. 23 And the San Joaquin River Agreement is a start. I 24 mean it is a start with conflicts, it's not the end, it's 25 not going to answer all the questions, because we're going CAPITOL REPORTERS (916) 923-5447 2051 1 to continue to work through all these issues year after 2 year after year. But it's a start of it adds more water to 3 the mix. You've seen that in testimony. It moves -- moves 4 us ahead on some CVPIA things that the Bureau and Fish and 5 Wildlife Service are involved in. It helps us with AFRP. 6 Granted, you heard questions about, "Well, is this 7 everything you ever wanted?" No, it's not necessarily 8 everything you ever wanted for flows, but it helps us move. 9 It moves us down the track. It helps us move forward on 10 CVPIA. And it's an experiment that can lead to better 11 decisions. When we come back, whether that's in 12 years, 12 or if something were to happen and we terminate early and 13 we come back a little bit earlier, we're still going to 14 have more information, because this agreement allows us to, 15 first of all, stabilize conditions. And you heard from the 16 biologists how important stabilizing those conditions to 17 really study and come to some conclusions is. It also 18 allows us to develop that information, reliable information 19 that all of us are involved and all of us accept. 20 And it's no guarantee that there's not going to be 21 conflict. And I'll -- you know, I'll admit that to you 22 now, but it's a structure for resolving those conflicts. 23 If we fail -- at the very worse, if we fail, we end up back 24 here with more information. So while it's some way to move 25 forward, it's some way to get action on the ground. It's CAPITOL REPORTERS (916) 923-5447 2052 1 some way to make things happen now, not spend another ten 2 years or whatever it would take to go through litigation, 3 or any other kind of conflict. It is the best way to move 4 forward. 5 And to face the kind of conflict that you've seen 6 in this hearing room and you would probably see somewhere 7 else, in the face of that conflict all we ask is that you 8 give cooperation a chance. This is the possibility for all 9 of us to work together, to work through a lot of issues, 10 the difficult issues. And instead of making a winner or 11 loser, allow us to work through and try to figure out a way 12 to make things work. So in the face of that conflict we 13 ask you to give cooperation a chance. 14 C.O. CAFFREY: All right. Thank you. Thank you, 15 Mr. Brandt. 16 Mr. Garner. Good morning sir. 17 MR. GARNER: Good morning. Thank you, Chairman 18 Caffrey and Members of the Board. I'll be brief because I 19 think the three previous speakers have done a fine job in 20 summarizing the agreement. But I want to focus the Board's 21 attention on the testimony of Dr. Charles Hanson who 22 testified on behalf of my client the State Water 23 Contractors in the joint presentation in support of the San 24 Joaquin River Agreement. 25 I think it's important as the Board considers CAPITOL REPORTERS (916) 923-5447 2053 1 whether or not to move forward with a Phase II-A to note 2 that Dr. Hanson's biological testimony was uncontroverted 3 by cross-examination, rebuttal cases, or other cases in 4 chief. And, specifically, it was Dr. Hanson's testimony 5 that the San Joaquin River Agreement when taken as a 6 package provides equivalent biological protection to the 7 1995 Water Quality Control Plan. 8 The consideration of the agreement as a package is 9 crucial, because the criticisms that you've heard of the 10 San Joaquin River Agreement have really been piecemeal, 11 they focused on flows, they focused on the head of Old 12 River barrier, some of those things might occur in the 13 absence of the agreement. However, they have not attacked 14 the agreement as a whole. And so, therefore, that 15 testimony of Dr. Hanson's, his testimony as well as that of 16 the other fishery biologists, stands uncontested, namely, 17 that the agreement does provide equivalent protection. I 18 think that, certainly, provides a basis for the Board to 19 move forward with a Phase II-A. And the State Water 20 Contractors strongly encourage you to do that. Thank you 21 very much. 22 C.O. CAFFREY: Thank you, Mr. Garner. 23 Mr. Birmingham. 24 MR. BIRMINGHAM: Thank you, Mr. Chairman, Members of 25 the Board, I, too, will be relatively brief because I think CAPITOL REPORTERS (916) 923-5447 2054 1 that Mr. Sawyers very eloquently described for the Board 2 all of the reasons that this Board should ultimately 3 approve the San Joaquin River Agreement as the alternative 4 for implementation of the 1995 Water Quality Control Plan. 5 But in my remarks I would like to focus on the 6 issue that's before the Board today. And from the 7 perspective of Westlands Water District and the San Luis 8 and Delta-Mendota Water Authority it is, perhaps, the 9 simplest issue that has ever confronted the Board, and that 10 is: Should the San Joaquin River Agreement be considered 11 as one of the alternatives for implementing the 1995 Water 12 Quality Control Plan? Stated alternatively: Does it merit 13 further consideration? That is a very, very simple issue. 14 And it is uncontroverted that the plan does warrant that 15 further consideration. 16 It's been stated that the evidence that was 17 submitted was uncontroverted, and it was. Each one of the 18 biologists who appeared -- and they appeared from a broad 19 spectrum of agencies and interest groups, but each one of 20 the biologists that appeared did testify that in their 21 opinion the San Joaquin River Agreement will provide the 22 lower San Joaquin River and the Delta with a level of 23 protection equivalent to the San Joaquin River portion of 24 the 1995 Water Quality Control Plan. 25 The Board heard from hydrologists who explained CAPITOL REPORTERS (916) 923-5447 2055 1 from where the water would be obtained and how it would 2 improve water quality standards in the Delta. And all of 3 that, of course, is relevant to why the Board should 4 ultimately adopt the decision. But, again, the issue 5 before the Board today is: Should we go forward with 6 further consideration of this agreement? And we have not 7 heard anything from anyone that could lead to the 8 conclusion that this agreement is unworthy of any further 9 consideration. 10 Thank you. 11 C.O. CAFFREY: Thank you, Mr. Birmingham. 12 Mr. Suyeyasu, did you -- I'm sorry, you seemed to hesitate 13 for a moment, come forward, sir. 14 MR. SUYEYASU: Are you ready for me? 15 C.O. CAFFREY: Good morning, sir. 16 MR. SUYEYASU: Good morning, Mr. Chairman, Members of 17 the Board. I'm afraid I missed the very end of things here 18 on Thursday. And I understand everything has changed 19 around a little bit, so -- 20 C.O. CAFFREY: In what sense is that, sir? 21 MR. SUYEYASU: Just in terms that I heard that you 22 are not going to make a determination of equivalency at 23 this point? 24 C.O. CAFFREY: No. We are just going to -- the 25 Hearing Officers, the Cohearing Officers will decide CAPITOL REPORTERS (916) 923-5447 2056 1 whether or not going forward with II-A to hear further 2 evidence on the agreement is warranted. 3 MR. SUYEYASU: I sent out in a fair amount of detail 4 the Environmental Defense Fund's position last Thursday, so 5 I will try not to repeat what I said last week. To 6 summarize, our major concerns with the agreement are for, 7 one, the use of public funds, especially the Restoration 8 Fund, to pay water users to meet their existing flow 9 obligations, the replacement of the firm in-stream 10 objectives of the Water Quality Control Plan with a highly 11 manipulatable existing flow criteria, the increased release 12 of hatchery-reared fish, which Mr. Herbold has compared as 13 cow to deer, into the wild which will then interbreed with 14 the natural salmon and cause problems for production of 15 natural salmon down the road, as well as the very title of 16 the San Joaquin River Agreement, which you have heard 17 simply does not resolve all of the issues that are before 18 the Board on the San Joaquin River. It's really only a 19 partial San Joaquin River Agreement. 20 Now, once again, none of the parties to these 21 hearings should be released of any liability for the 22 objectives of the Water Quality Control Plan until the 23 Board is sure that all of the objectives will be met. 24 Ultimately, the Board has no choice but to reject the San 25 Joaquin River Agreement. Not only does it not provide an CAPITOL REPORTERS (916) 923-5447 2057 1 equivalent level of protection to the Water Quality Control 2 Plan, it simply leaves the parties to the agreement with 3 too much discretion for the Board to release them of 4 liability. 5 We do not know what will happen under the 6 agreement. And, consequently, the Board cannot surrender 7 its jurisdiction to these parties for the 12-year term of 8 the agreement. Such a release of liability would be 9 largely dependent upon our faith in the Fish and Wildlife 10 Service and the Department of Fish and Game to protect the 11 fish for the duration of the agreement. 12 But as we heard last week, every time those 13 agencies would act to protect the fish, every time they 14 might object to what all the water users are proposing, 15 they might have to a pay significant penalty in terms of 16 the mediation costs that are provided for in the agreement. 17 The proponents of the agreement have said that these 18 mediation provisions are an available thing, that they will 19 help the agreement to stay together over the years, because 20 they are somewhat of a deterrent. But it frightens me a 21 little bit that the watchdogs that are supposedly on this 22 technical committee might have to pay, I don't know, they 23 said it could be a large cost. It could be 20,000, $30,000 24 every time they say, "We don't like what's going on here." 25 And, presumably, they will be the detours because there are CAPITOL REPORTERS (916) 923-5447 2058 1 a large number of water users on that group and just a 2 couple of agencies. 3 Now, a couple of people who gave closing arguments 4 before me said that there was uncontroverted testimony that 5 all the biologists up here believe that the San Joaquin 6 River Agreement provides an equivalent level of protection 7 to the Water Quality Control Plan. My memory might be a 8 little bit off, but I think I asked all the experts who 9 were up here: 10 If you compared the San Joaquin River Agreement to 11 the Water Quality Control Plan, did you consider the 12 funding issues? Did you consider what would happen if the 13 Department of the Interior was the backstop? They did not 14 compare those things. They only looked at the VAMP. They 15 only looked at the experiment. 16 And so their equivalency determination was a bit 17 of the stacked deck compared to what the Board needs to 18 look at. What they did not consider, at least some of the 19 biologists, I believe it might have been Dr. Kjelson, only 20 considered a 3200 csf minimum in-stream flow requirement as 21 called for in the VAMP. He did not consider the 2,000 csf 22 minimum requirement called for in the San Joaquin River 23 Agreement, nor did he consider the years in which flows 24 would be under 2,000 csf. 25 They generally did not consider the impacts of CAPITOL REPORTERS (916) 923-5447 2059 1 releasing hatchery-reared fish into the wild, which will 2 have detriments to the natural reproducing populations. 3 They assumed no barrier would be installed absent the San 4 Joaquin River Agreement even though that barrier is already 5 being installed and we heard there is plans to continue 6 stalling it. 7 In fact, what the Board's Water Quality Control 8 Plan says is the barrier should not be installed if it does 9 not have adverse detrimental impacts. That seems like a 10 reasonable position that should even be followed under the 11 agreement. They assume that the inflow/export ratio would 12 be one-to-one under the Water Quality Control Plan absent 13 the San Joaquin River Agreement, even though the Delta 14 Smelt Biological Opinion might make it two to one or 15 greater, and even though the CVPIA might make it three, 16 four, five, or six to one. 17 They did not consider whether or not New Melones 18 operating plan might be amended to require less flows 19 during the pulse-flow period, which would in turn reduce 20 the flows provided during the targets flow at Vernalis. 21 They did not consider that parties might manipulate the 22 system to reduce their target flows. They have spoken 23 about the good faith they have put into drafting this 24 agreement and the good faith that they're going to put 25 forward in the terms of the agreement to make that happen. CAPITOL REPORTERS (916) 923-5447 2060 1 I hate to be skeptical, but I've never heard of 2 any of the water users once giving up water for the benefit 3 of the fish without being forced to do it. I just -- that 4 does not happen. Their interests are to get the water that 5 they can. 6 They did not consider what would happen to species 7 other than the San Joaquin salmon such as the Delta smelt, 8 or the Sacramento salmon. They generally did not consider 9 impacts outside of the pulse-flow period. They did not 10 generally consider impacts to water quality. 11 Given these holes in the evaluation presented to 12 the Board, it's simply not possible for the Board to make 13 an equivalency determination. Even if an equivalency 14 determination could be made, I do not believe that the 15 Board can lower the flow objectives without holding a 16 hearing to amend, as opposed to implement, the Water 17 Quality Control Plan. I thank the Board for its thoughtful 18 consideration of this matter. 19 C.O. CAFFREY: Thank you, Mr. Suyeyasu. Before you 20 leave, I think Mr. Stubchaer may have something. 21 C.O. STUBCHAER: Mr. Suyeyasu, you mentioned that 22 something happened after you left Thursday. What we did 23 was just repeat what was in the July 16th ruling letter. 24 There was nothing new presented. 25 MR. SUYEYASU: Okay. Thank you. CAPITOL REPORTERS (916) 923-5447 2061 1 C.O. CAFFREY: I'm sorry, Mr. Brown, did you have a 2 question? 3 MEMBER BROWN: Again, at the conclusion of this phase 4 we're not making an equivalency determination. We'll be 5 determining if the alternative is worthy of further 6 consideration, as a reminder. 7 MR. SUYEYASU: Thank you. 8 C.O. CAFFREY: Thank you, Mr. Suyeyasu. It is now 9 about three and a half minutes to 12. Why don't we take 10 our lunch break now and then we will continue with the 11 first phase of closing arguments when we return. And then 12 we will go into the second phase, which is the five-minute 13 response. We will be back here at 1:00 o'clock. Thank 14 you. 15 (Luncheon recess.) 16 ---oOo--- 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 2062 1 TUESDAY, AUGUST 4, 1998, 1:01 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. CAFFREY: We are back on the record. I just 5 want to announce that one of the party representatives that 6 was not here this morning, Mr. Maddow, has asked to be 7 added to the list of those making closing statements. So 8 I've added Mr. Maddow's name at the end of the list after 9 Mr. Herrick. 10 Of course, when we reverse things, then, I guess 11 that puts him first and you second, Mr. Herrick. All 12 right. Okay. Then, we were going to go with Mr. Sandino. 13 I believe; is that correct? 14 MR. SANDINO: Yes. 15 C.O. CAFFREY: Yes, we finished Mr. Suyeyasu. So we 16 will now go through the non-cases in chief closing 17 statements. Good afternoon, Mr. Sandino. 18 MR. SANDINO: Good afternoon, Mr. Caffrey, 19 Mr. Stubchaer; David Sandino on behalf of the Department of 20 Water Resources. 21 As stated in the Board's July 16, 1998, ruling on 22 the motion for changes in the proceeding, the limited 23 purpose of Phase II of the Bay-Delta Water Rights Hearing 24 is to determine whether the San Joaquin River Agreement 25 merits further consideration as a flow alternative. If it CAPITOL REPORTERS (916) 923-5447 2063 1 does merit such consideration the ruling provides that a 2 Phase II-A may be held to allow consideration of the San 3 Joaquin River Agreement in comparison to other flow 4 alternatives. 5 As we announced at the beginning of this hearing, 6 the Department of Water Resources recently signed the 7 Letter of Support for the San Joaquin River Agreement. 8 Based on the testimony provided in Phase II, we believe 9 that it has been established with substantial evidence that 10 the agreement does, in fact, merit further consideration as 11 an alternative. 12 Other parties before me have elaborated in more 13 detail about the specifics of this evidence, but it is our 14 view that the evidence provided by the San Joaquin River 15 Agreement -- I'm sorry, provided by the San Joaquin River 16 Group biological witness panel, which represented a wide 17 spectrum of often differing interests, provided persuasive 18 testimony that the San Joaquin River Agreement provides 19 substantial biological protection. 20 The heart of this testimony compared the fish 21 protection provided by the 1995 Water Quality Plan with the 22 protection provided by the San Joaquin River Agreement 23 requirements. This comparison was based on an examination 24 of the San Joaquin River flow, CVP and SWP export limits, 25 and the installation of the Old River barrier head. CAPITOL REPORTERS (916) 923-5447 2064 1 We also believe that the San Joaquin River 2 Agreement merits further consideration based on the panel's 3 testimony that the VAMP study program will shed more light 4 on the relationship of river flow and project diversions on 5 San Joaquin fish and on the benefits of the head of Old 6 River barrier. There was also testimony during Phase II 7 about the SWP and CVP serving as a backstop to the San 8 Joaquin River Agreement. And there were questions about 9 what the term "backstop" means. 10 We believe it is appropriate to clarify this 11 concept in our closing argument, because the inclusion of 12 the backstop provisions in the San Joaquin River Agreement 13 is another reason why it is an alternative that merits 14 further consideration by this Board. In our view, the 15 concept of backstopping the San Joaquin River Agreement is 16 important, because it protects both settling parties, those 17 providing water to implement a settlement, and the 18 nonsettling parties, those parties that could be adversely 19 affected by the settlements. 20 Nonsettling parties could be adversely affected if 21 the Board accepts the settlement and then adopts a flow 22 alternative in Phase VIII that allocates what would have 23 been the flow responsibility of the settling parties in 24 absence of the settlement to the nonsettling parties. 25 The term "backstop" thus generally means that the CAPITOL REPORTERS (916) 923-5447 2065 1 State Water Project and the Central Valley Project would 2 operate the projects so that the settling parties's 3 obligation to provide flow is limited to that provided in 4 the settlement agreement. As a result, the settling 5 parties are encouraged to reach settlement by the 6 limitation on their exposure. This also protects the 7 nonsettling parties who, as a result of the backstop, will 8 not be required to bear any flow responsibilities that 9 would have been gone to the settling parties absent the 10 settlements. 11 The Department has made it clear over the past 12 year that it would backstop the other reasonable 13 settlements including those in the Sacramento basin to 14 promote the settlement process and to avoid impacts to 15 nonsettling parties. We believe that such settlements 16 further the implementation of the 1995 Water Quality Plan 17 by limiting and hopefully avoiding adversarial approaches 18 which would hinder the timely implementation of the plan in 19 our view. 20 Specifically, the San Joaquin River Agreement has 21 three different backstop provisions. First, paragraph 22 10.1.1 of the agreement provides that the Bureau of 23 Reclamation shall assume the responsibility for the San 24 Joaquin River portion of the 1995 Water Quality Plan 25 objectives that can reasonably be met through flow measures CAPITOL REPORTERS (916) 923-5447 2066 1 for the term of the agreement. 2 The San Joaquin River portion is defined in 3 Section 3.4 of the agreement to mean the San Joaquin River 4 flow of Vernalis, both the agricultural and fish wildlife 5 objectives there, the San Joaquin River salinity, and the 6 San Joaquin River's basin share of all Delta outflow 7 objectives. 8 The second backstop provision is at paragraph 9 10.1.2. This provides that the Bureau, and as appropriate, 10 the Department shall assume the responsibility for the San 11 Joaquin River's basin share of the Delta outflow objectives 12 of the 1995 plan. 13 Third, if the agreement is terminated as provided 14 in paragraph 13, paragraph 10.1.2 of the agreement provides 15 that the Bureau and the Department will operate the 16 projects to achieve the San Joaquin River's basin share of 17 Delta outflow for up to two years to give the Board time to 18 implement that portion of the 1995 Water Quality Plan. 19 We believe these backstop provisions contained in the 20 agreement serve as further substantial evidence that the 21 San Joaquin River Agreement alternative merits further 22 consideration by this Board. 23 Finally, it is important to note that the 24 testimony showed that the head of Old River barrier is an 25 important component of VAMP and that paragraph 2.6 of the CAPITOL REPORTERS (916) 923-5447 2067 1 agreement also refers to the three agricultural barriers 2 as, "possibly needed to mitigate the impacts to South Delta 3 water users caused by the head of the Old River barrier." 4 We also believe that it is important that any 5 impacts to these interior Delta water users associated with 6 the agreement be addressed through the agreements NEPA/CEQA 7 process. The Department will present testimony in Phase V 8 describing both its South Delta Temporary Barrier Program 9 and its Permanent Barrier Program, which is a component of 10 our Interim South Delta Program. 11 To summarize, we urge that this Board find that 12 the San Joaquin River Agreement merits further 13 consideration as a flow alternative. Thank you. 14 C.O. CAFFREY: Thank you very much, Mr. Sandino. 15 Mr. Porgans. Good afternoon, sir. 16 MR. PORGANS: Good afternoon, Mr. Chairman, Members 17 of the Board. My name is Patrick Porgans with Porgans and 18 Associates. First, I would like to compliment the group, 19 the San Joaquin River Group for their extensive amount of 20 testimony and the collective contribution of both the 21 government and the consultants in the process, the hearing 22 process, Phase II. 23 However, in light of the testimony presented by 24 the proponents of the agreement, we must recognize the fact 25 that data relative to the agreement is somewhat CAPITOL REPORTERS (916) 923-5447 2068 1 speculative, inconclusive and extremely limited. And the 2 evidence on the face of it does not provide a strong enough 3 argument to warrant further consideration and/or approval 4 by this Board. 5 For the record, I must reiterate that Porgans and 6 Associates takes strong exception to the Board's decision 7 to separate the water quality and water quantity issues in 8 two separate phases of the hearing process. Such an action 9 is incongruent. My concerns relative to the separation of 10 those two critical issues was affirmed during my 11 cross-examination of "fishery experts," and I want that in 12 quotes, "experts" when they conceded that water quality and 13 quantity are inextricably linked for fish survival and 14 sustainability. 15 Separating the two preempted the introduction of 16 meaningful evidence upon which the Board could make an 17 unbiased and impartial decision relative to the agreement. 18 In any action that this Board takes relative to the San 19 Joaquin River, it is essential that it keeps in mind that 20 according to the U.S. Environmental Protection Agency's 21 data, the San Joaquin Valley is the single largest 22 contiguous, quote, "Most serious water quality problem of 23 high vulnerability," end quote, area in the United States 24 predominantly due to agricultural drainage. 25 In addition, the quote, unquote, experts, conceded CAPITOL REPORTERS (916) 923-5447 2069 1 to the fact that the experimental design for VAMP was based 2 upon limited data. More importantly the record will attest 3 to the fact that the proponents also conceded that the 4 agreement cannot guarantee compliance with the Water 5 Quality Control Plan and/or the doubling of the fish 6 population. In addition, there were doubts raised 7 regarding the procurement of all the funds required for 8 this experiment. And that there are certain risks 9 associated with funding the program. 10 According to the Director of the Department of 11 Water Resources, approximately 12 million or so dollars 12 would come from the general fund. The agreement amounts to 13 another experiment which will extend for 12 years. And no 14 one could explain to me, with any degree of specificity, as 15 to why that specific period of time was selected. However, 16 it is interesting to note that the most recently approved 17 basin plan amendment, adopted by the Regional Board, has a 18 compliance date for specific toxic trace elements from 19 agricultural discharge, i.e., selenium and aurone for the 20 year 2010 for the San Joaquin River. So 12 years from now, 21 it's 2010. 22 Government reports reveal that selenium is 23 especially toxic to fish. Nevertheless, the selenium loads 24 involved can be discharged into the San Joaquin River as 25 contained in the basin plan are 252-percent higher than CAPITOL REPORTERS (916) 923-5447 2070 1 what the EPA five parts per billion allows. The Central 2 Valley Regional Water Quality Control Board's data also 3 reveals that the five parts per billion standard has been 4 consistently violated over the last several years. Between 5 1986 and 1995 approximately 85,000 pounds of selenium were 6 discharged into the San Joaquin River. In relative terms 7 there was only about 17,400 pounds of selenium discharged 8 into the Castasian (phonetic) Reservoir between 1981 and 9 '95 when it was ordered closed because of the destruction 10 of both fish and wildlife sources. 11 With current selenium loads averaging 10 and 12 12,000 pounds being discharged into the river annually 13 upstream from Vernalis, which exceeds the five parts per 14 billion water quality limit containment, neither the 15 Department of Fish and Game nor the U.S. Fish and Wildlife 16 Service have quantified or qualified the biocumulated 17 impacts of selenium on the food chain, which the salmon 18 depend on, or survival and/or mortality rates associated 19 with salmon species. 20 The fisheries experts concede that the 21 availability of the 110,000 acre-feet of water is an 22 essential component of the program. However, there is no 23 guarantee that the water will be available when needed. 24 Coincidentally, the majority of the 110,000 acre-feet of 25 water will be released during the same period when selenium CAPITOL REPORTERS (916) 923-5447 2071 1 discharges are highest on the San Joaquin River coming out 2 of the Grasslands basin. 3 Since water deliveries from government water 4 projects were initiated as early as 1951, the San Joaquin 5 River has continued to experience serious water quality 6 degradation. Nevertheless, during the last 40 years 7 neither the U.S. Fish and Wildlife Service nor the 8 Department of Fish and Game have quantified and/or 9 qualified the relative impacts of water exports, deliveries 10 and/or agricultural -- deliveries and agricultural return 11 flows on salmon populations, habitat or the food chain. 12 Although the water quality standards for the 13 protection of aquatic life in the river as promulgated in 14 EPA's 1992 is five parts per billion for the San Joaquin 15 River, from the mouth -- excuse me, from the mouth of the 16 Merced to Vernalis, the Regional Board's data reveals that 17 the standard has been consistently violated in recent 18 years, in some years 11 out of 12 months. And we must keep 19 in mind that there's 130 miles of the San Joaquin River 20 from the Sac dam to Vernalis has been -- has been listed as 21 a water quality limited segment. 22 Well, the agreement makes reference to this 23 12-year experimental period; it also states it can 24 essentially terminate at any time. It has been stated that 25 if for any reason the group fails to provide the 110,000 CAPITOL REPORTERS (916) 923-5447 2072 1 acre-feet, that the State and the Feds would serve as a 2 backstop. This agreement is in the interest of the water 3 purveyors and no other entity should be required to provide 4 water under any circumstances. Furthermore, there are no 5 assurances that either DWR or the Bureau would actually 6 provide the amount of water during a critically dry year. 7 I am certain the Board recalls that during the 8 last, quote, unquote, "drought," both the Department and 9 the Bureau failed to provide water to meet the terms and 10 conditions of their respective water rights as required by 11 D-1422, Vernalis, San Joaquin; and D-1485, at which time 12 the Delta was on the verge of an ecological collapse, which 13 was partly attributable to the water exports by both of 14 these agencies. At one point the Bureau even filed a 15 letter with this Board on the 500 TDS at Vernalis they 16 weren't even going to meet any, and that's in your record. 17 Based upon the record, there are absolutely no 18 assurances that the government or the group is going to be 19 held accountable if either fail to meet these requirements. 20 At best, the agreement is a token gesture by those 21 agricultural drainers and water users to buy off on their 22 real responsibility relative to using the public's water in 23 a manner consistent with the reasonable use provisions of 24 the law and any certain meaningful action to remedy the 25 deplorable condition of both the San Joaquin River and the CAPITOL REPORTERS (916) 923-5447 2073 1 aquatic sources which are dependent upon for survival and 2 sustainability. Although it is evident that P&A is 3 concerned about the inherent shortcomings of the agreement, 4 we are even more concerned about the potential adverse 5 ramifications of what the agreement does not say, which are 6 not explicitly stated therein, i.e., avoiding accepting 7 full or impairing the parties -- or rights to the water 8 which they receive either by contract or by some water 9 right permit. 10 Protection of the river and aquatic life is -- it 11 sustains the issue of paramount importance. However, this 12 is an issue that has consistently been avoided. And the 13 existing condition of the river and its resources are 14 indicative of that fact. It is imperative that the Board 15 and the water users and the agricultural drainers cease 16 from fragmenting the issues which benefit the water users 17 at the expense of the general public and the demise of 18 their public trust sources. 19 Taking all of those factors into account in 20 acknowledging that the water users drainers have had 21 decades to reconcile those factors contributing to the 22 demise of the San Joaquin River and its resources and all 23 the uncertainties associated with the agreement/model, it 24 would be an injustice for the Board to sanction such an 25 agreement. CAPITOL REPORTERS (916) 923-5447 2074 1 I'd like to say in closing -- and this just came 2 to me, and I don't mean this to be mean or facetious to 3 anybody by any means, but it looks to me like this whole 4 agreement comes down to -- and I can appreciate the move 5 they made. I mean I probably would do it if I was in their 6 situation, maybe. I don't know. I would consider it. 7 This agreement comes down to, you know, dollars for water 8 and somebody else picking up the bill. If anybody really 9 wants to get to the real root of the problem, I'm willing 10 to contribute some of my time to that objective. 11 Thank you very much, Mr. Chairperson and to the 12 Board. 13 C.O. CAFFREY: Thank you very much, Mr. Porgans. 14 Ms. Koehler. Good afternoon. 15 MS. KOEHLER: Good afternoon. I'm Cynthia Koehler 16 with Save the Bay. I had no coffee at lunch today. 17 MEMBER FORSTER: What did you say, Cindy? 18 MS. KOEHLER: I said, I had no coffee at lunch today. 19 C.O. CAFFREY: But you did have a root beer float, 20 right? No, you don't have to answer that. 21 MS. KOEHLER: Mr. Chairman, as part of your 22 determination of whether the San Joaquin River Agreement 23 merits further consideration, the most important issue is 24 whether it will provide environmental benefits in the lower 25 San Joaquin River equivalent to those in the 1995 Water CAPITOL REPORTERS (916) 923-5447 2075 1 Quality Control Plan. 2 Based on the evidence presented in this phase it 3 appears that the San Joaquin River Agreement as currently 4 drafted is unlikely to do so. The proponents of the 5 agreement did not really attempt to present evidence that 6 the agreement would provide biological benefits equivalent 7 to the Water Quality Control Plan. Instead, they presented 8 a case attempting to show that the VAMP experiment could 9 under ideal circumstances provide such equivalency. 10 But the Board is not being asked to adopt the VAMP 11 experiment standing alone. It is being asked to adopt this 12 experiment wrapped inside a complex agreement. The 13 evidence demonstrated that the agreement itself contains a 14 number of provisions that could undermine the environmental 15 protections that could be provided by the experiment in at 16 least three ways. 17 First, it was demonstrated that the target flows 18 intended to provide the fish and wildlife benefits are 19 entirely dependent on a new and unusual forecasting method 20 that relies on the permittees to make an annual 21 determination of what the existing flows would be absent 22 the VAMP agreement. It was further demonstrated that there 23 is sufficient flexibility in the system for the signatories 24 to the agreement to affect the determination of existing 25 flows. CAPITOL REPORTERS (916) 923-5447 2076 1 Thus the target flows may or may not meet the 2 expectations of the biologists who testified before you as 3 to VAMP's equivalent level of environmental protection. 4 Indeed, to a person the proponents panel of biologists 5 acknowledged that they had no way of knowing whether the 6 target flows would, in fact, be provided as modeled. And 7 they admitted that their testimony -- that their finding -- 8 their testimony of equivalency rested on the assumption on 9 which they never questioned, that the flows would, in fact, 10 be provided as modeled by the San Joaquin River Group's 11 hydrologist. 12 Mr. Brandt and Mr. Sawyers have disparaged this 13 concern as conjuring Bogeyman and otherwise silly, or even 14 somehow offensive. They urge us to trust one another in 15 the implementation of this agreement. But this concern is 16 not about computing the integrity of signatories. And we 17 urge the Board to make a less emotional and more 18 businesslike approach to this issue. 19 To a person the experts admitted they could name 20 no other environmental standard based on the model proposed 21 here. Save the Bay's goal in this proceeding is a limited 22 one: To fully implement the Water Quality Control Plan, 23 the standards that have been more than a decade in coming. 24 The issue here is whether the agreement provides too much 25 discretion to the parties subject to the regulation. This CAPITOL REPORTERS (916) 923-5447 2077 1 is a legitimate and critical issue for the Board to 2 consider. 3 Second, it was demonstrated that the signatories 4 have reserved for themselves the ability to affect the 5 target flow regime. They have done so, however, without 6 standards or criteria for which such modifications would be 7 appropriate. The suggestion of the groups like Save the 8 Bay could avail themselves of a remedy, but simply signing 9 the agreement is no consolation. 10 The point is that the agreement as it is currently 11 drafted does not itself provide equivalent protection, but 12 relies largely on the discretion or the watch dogging to 13 parties to a private agreement. There's no disparagement 14 to the integrity, or to the intent of those parties to 15 point out that such reliance fails to meet the equivalency 16 standard. 17 Third, the agreement fails to meet the equivalency 18 standard which can be terminated by any party in any year 19 for any reason. This contingency was never contemplated by 20 the biologists testifying before you. Obviously, this is a 21 substantial loophole in the agreement that could entirely 22 undermine the environmental protections that the VAMP 23 experiment would otherwise provide. 24 None of the biologists testified that the backup 25 to the agreement, which essentially appears to be a return CAPITOL REPORTERS (916) 923-5447 2078 1 to your 95-6 Decision, would provide environmental 2 protections or benefits equivalent to the standards in the 3 1995 Water Quality Control Plan. 4 In sum, even given the most favorable assumptions, 5 there is no evidence in the record that the San Joaquin 6 River Agreement, distinct from the VAMP experiment standing 7 alone, would provide biological protection for the San 8 Francisco/Bay Delta estuary equivalent to the '95 Water 9 Quality Control Plan. The biologists, indeed, acknowledged 10 that they had not even read the agreement, but limited 11 themselves to the VAMP experiment appendix. 12 Those are just three problems with the agreement 13 from an equivalency perspective if it is assumed that this 14 phase is dealing only with the Vernalis standard. In 15 addition, this hearing was noticed to address the 16 flow-dependent objectives of the Water Quality Control 17 Plan. It's defined in the notice as, "All the objectives 18 that could be met by the flow of water, or by changes in 19 the operations of facilities even if such objectives could 20 be met by other means." 21 This clearly includes the narrative standard 22 calling for a doubling of anadromous fish in the 1995 Water 23 Quality Control Plan. The San Joaquin River Agreement 24 proponents failed to carry their burden of proof that the 25 agreement would supply the flows necessary to meet the CAPITOL REPORTERS (916) 923-5447 2079 1 doubling standard. We realize the flows alone will not 2 achieve the narrative standard, but it is also true that 3 the standard cannot be met without appropriate flows. 4 We heard testimony that the flow recommendations 5 developed by the Fish and Wildlife Service to meet the 6 parallel federal fish doubling standard called for flows 7 higher than those that would be provided under the VAMP 8 experiment. Yet, the Fish and Wildlife Service had no 9 explanation for how the lower VAMP flows could serve the 10 same role in achieving the doubling standard as the higher 11 flows recommended in its 1995 Anadromous Fish Restoration 12 Program working paper. Nor was there any other testimony 13 establishing that the VAMP experiment could, or would, 14 provide the flows necessary to meet the doubling standard. 15 In addition, the San Joaquin River Agreement 16 actually serves to undermine the attainment of the doubling 17 standard. While appropriate flows are a necessary 18 component of meeting the standard, it is not a sufficient 19 one. All parties have acknowledged that meeting the 20 narrative standard will require habitat restoration and 21 other measures, and all of those will cost money. 22 There is a limited amount of environmental money 23 available. And as now drafted the San Joaquin River 24 Agreement would siphon 48 million dollars from the 25 ecosystem restoration and use it to pay for compliance with CAPITOL REPORTERS (916) 923-5447 2080 1 water quality standards. I must respectfully disagree with 2 Mr. Sawyers's characterization of this issue. Water 3 quality standards are legal requirements. Thus, it is 4 simply not the case that the funds provided under this 5 agreement would be used to provide water that otherwise 6 would not be available, to the contrary. 7 The purpose of this hearing is to ascertain the 8 best method for meeting the water quality standards. And 9 we at Save the Bay have no doubt that this Board take this 10 responsibility seriously and that the necessary water will, 11 in fact, be provided in absence of the agreement. 12 In sum, by using the limited restoration fund 13 dollars to pay the San Joaquin River Group to comply with 14 water quality standards, the agreement results in a net 15 loss to the environment and possibly undermines the 16 attainment of the narrative standards requiring the 17 doubling of anadromous fish. 18 So is the San Joaquin River Agreement worth 19 further consideration by this Board? In our view the VAMP 20 experiments standing alone appears to have some merit. But 21 the San Joaquin River Agreement in which it is packaged is 22 troubling for the reasons I have outlined. And the limited 23 question of: Whether the agreement provides an equivalent 24 level of protection to the 1995 Water Quality Control Plan, 25 it is clear that the answer is that it does not, at least, CAPITOL REPORTERS (916) 923-5447 2081 1 not in its current form. Any further consideration of this 2 agreement by this Board should focus on remedying those 3 aspects of the agreement that undercut the potentially 4 useful benefits of a VAMP experiment. 5 Thank you. 6 C.O. CAFFREY: Thank you very much, Ms. Koehler. 7 Mr. Nomellini. 8 MR. NOMELLINI: Can we use the screen? 9 C.O. CAFFREY: Gladly. 10 MR. NOMELLINI: If you can master the screen, I'll 11 master the view. Dante John Nomellini on behalf of Central 12 Delta Parties. Mr. Chair and Members of the Board, you 13 have heard me speak many times about the concern about 14 piecemealing the task of attempting to provide a water 15 rights decision that would address implementation of the 16 1995 Water Quality Control Plan. 17 The San Joaquin River Agreement, in my view, is 18 such a piecemeal, or a part, and as I will explain briefly, 19 I don't know that it needs to be thrown out entirely, but I 20 don't think it should be given further consideration unless 21 a number of things are undertaken. 22 First with regard to the testimony of the 23 biologists on the equivalency of this agreement to the 24 Vernalis flow requirements, what I heard from the 25 biologists is somewhat different. I joke with Gary Sawyers CAPITOL REPORTERS (916) 923-5447 2082 1 that we must have listened to different witnesses, but we 2 all agree we all hear what we want to hear. What I heard 3 from the biologists was that they were focusing in only on 4 San Joaquin River salmon smolts. And they were looking at 5 the Vernalis flow requirements, not the total package, 6 which I'll get to, of the other flow objectives. 7 And the only thing different I heard from any of 8 the witnesses was from Loudermilk, who said he gave 9 consideration to the Delta smelt biological opinion in 10 considering the equivalency. I view and understood and 11 perhaps I should have paid more attention when you adopted 12 the 1995 plan, but I was busy griping about you people 13 blessing the Delta Accord, which I kind of think is coming 14 back to haunt us now, because we're fostering agreements. 15 We're helping the State move forward with everybody working 16 together. And we're asked to do it again. And maybe we 17 left science behind us. 18 But the testimony of these biologists was that 19 this would provide equivalent protection basically for San 20 Joaquin River smolt during the pulse-flow period. Now, I 21 questioned, extensively in cross-examination, Mr. Kjelson 22 with regard to whether he gave any consideration to 23 anything else. And he candidly admitted he only looked at 24 San Joaquin River smolts. And I don't have the transcript, 25 but that's the way I remember it. And I was kind of CAPITOL REPORTERS (916) 923-5447 2083 1 surprised he was so forthright and so clear in that regard. 2 He also used to justify the fact and I think it's 3 conceded that the flows aren't the same. The San Joaquin 4 River Agreement flows are not the same flows as in the 1995 5 Water Quality Control Plan. I don't know if that's bad or 6 good, but it's not the same flows. They're not the same at 7 the top and they're not the same at the bottom. 8 And he told us, and he had an exhibit, and I 9 couldn't find it or I would have made an overhead, he had 10 an exhibit that showed that the head of Old River barrier 11 and the changes in the export requirements were the factors 12 that led him to this equivalency determination. And I 13 asked a whole bunch of these witnesses about the head of 14 Old River barrier, you know, and whether they put it in 15 before and it's been going in. 16 You heard Alex Hildebrand, I think we all know, 17 the head of Old River barrier installation is not 18 contingent on this San Joaquin River Agreement. It's been 19 worked with over the years and it would be worked with in 20 spite of the agreement. 21 Now, with regard to the export restrictions, the 22 testimony I heard was that the Biological Opinion for smelt 23 set up the two-for-one ratio. And that these other ratios 24 that are going to be incorporated in the test, I guess we 25 can say are the result of the agreement, or else would CAPITOL REPORTERS (916) 923-5447 2084 1 require something further than the Delta smelt Biological 2 Opinion. If you want a three to one, or something like 3 that, that's not in the Biological Opinion. 4 So there's something out there. I mean could we 5 get that without the San Joaquin River Agreement to conduct 6 the test or not? I don't know. There's some merit to 7 that. I think, though, that when we deal with equivalency 8 to the Water Quality Control Plan, how can we say where we 9 have a flow requirement of 7,000 that 6,000 will adequately 10 meet it? I don't think we can do that. I think we are 11 forced to reconcile the plan with the implementation. 12 And I would opt for going back and revisiting the 13 plan. If this is what the fishery community wants to 14 change it to, then, I think what we have to do is review 15 the plan. I don't think we can say, hey, this provides 16 equivalent protection. It's too explicit. We're saying 17 7,000 is equivalent to 7,500. Either what we said in the 18 plan is not meaningful, or we have to go ahead and -- I 19 don't think we can possibly say that they are the same. We 20 can't do it. The test of equivalency, and I think you 21 probably recognized it by saying you're not going to 22 decide, is not the test. We're trying to meet that plan. 23 Now, that plan is up for triennial review in any event. 24 And I think the testimony that we heard, and it 25 surprised me to see there was no correlation between the CAPITOL REPORTERS (916) 923-5447 2085 1 flows and salmon smolt survival except, perhaps, they 2 said -- the biologists said they kind of agreed with 3 Brandes about what she said about correlation. One of the 4 experts, the expert that's the San Joaquin River Group 5 Authority said there was no correlation in his opinion. 6 There is no correlation to export. 7 The information is not clear to justify what we 8 have here, to justify these flow requirements. And I worry 9 about this agreement going ahead and taking all of this 10 fresh water and dumping it down the river in this 30-day 11 period in order to accommodate a test. And I seriously 12 question whether or not that's a reasonable use of water. 13 Let me talk a little bit more about this. 14 The test that we have here in this water rights 15 hearing is clear. This is from your notice of May 8, 1998, 16 notice. The flow objectives including the Delta outflow 17 objectives, the salinity objectives in the Delta that it 18 can't control Delta outflow, the flow objectives on the 19 Sacramento River at Rio Vista, the flow objectives on the 20 San Joaquin River at Vernalis. And, five, the salinity 21 objectives on the San Joaquin River at Vernalis. 22 Those are all part of what you're trying to 23 determine a plan to meet that. You're trying to get a plan 24 that's going to meet all of those things in these hearings. 25 And that's clear. And what the San Joaquin River Agreement CAPITOL REPORTERS (916) 923-5447 2086 1 is asking you to do is to segregate out the flow objectives 2 on the San Joaquin River at Vernalis and deal only with 3 that segment. And they're too interrelated. 4 We should before -- and I would ask you before you 5 give any further consideration to this San Joaquin River 6 Agreement that you ask the Bureau and the State to come 7 back to you with a plan as to how they intend to meet all 8 of these objectives. If they want to segregate the San 9 Joaquin River, fine. But I would ask where's the Bureau 10 going to get the water to make up for the difference 11 between the 2,000 cubic feet per second that the San 12 Joaquin River Group is going to provide and the 3200 that 13 the fishery people want. 14 And, then, where are they going to get the water 15 when the San Joaquin River Agreement people don't provide 16 any water, because of that drought sequence, what's the 17 Bureau's plan to provide the entire amount of water? 18 Then, where are they going to get the water to meet the 19 salinity requirements, which we've been yapping about for a 20 long time? You know, you put in your orders, that the 21 Bureau had to meet it. 22 I'm encouraged the Bureau is now coming in and 23 said they're going to meet it, they're going to backstop it 24 and they're going to meet it. I thought they were legally 25 obligated to meet it. We got in a big fight with you guys CAPITOL REPORTERS (916) 923-5447 2087 1 over saying we didn't go think they were going to meet it. 2 Your staff in your decision in 95-6 said, we will not 3 assume that the Bureau is not going to meet that standard. 4 We must assume that they're going to meet it. They haven't 5 met it in the past. We should have some kind of a plan. 6 And I got a little bit taken back when Lowell Ploss said 7 that they don't have any plans as to how they're going to 8 get this other water. There's no plans. 9 Now, I, perhaps, am one of the paranoid people. 10 I've seen the stripes on these tigers before. They look 11 the same to me. And it's time to say to these people in 12 good faith, you want to give further consideration to this, 13 come and tell us how you're going to fill these other gaps 14 before we look at this thing further. And it would save us 15 all time, because what's going to happen, the same old 16 crap. We're going to get in a big fight over this thing. 17 And there may be a San Joaquin River Agreement 18 that would fit in this package, and I'm not suggesting that 19 we take the 48 million dollars away, let's keep it in the 20 pot as part of what we need to make the resolution. Let's 21 keep the water in the pot. There's some water over there 22 even if we get it in the summer or whatever, it still can 23 be moved around. We can argue about that forever. There's 24 a lot of good faith, lot of effort. These people spent a 25 lot of time and money putting this together. I don't view CAPITOL REPORTERS (916) 923-5447 2088 1 it as going away if we sit here and we put the cards on the 2 table and say, look, fellas and ladies, we have to solve 3 this entire San Joaquin River problem. And let's take it 4 the next step. And let's see if we can't really work out 5 what a solution would be to this problem. 6 Now, let me go to another overhead. All right. 7 Let me talk about reasonable use of water. I listened 8 carefully to the biologists. And I apologize for not 9 staying right in there with all this fish stuff before, but 10 I didn't do it. I was focusing in on this Delta Accord and 11 we were a little unhappy about it. What the fish people 12 want to do is get better information. They had a chart, 13 it's got a line on it. And they need more guidance as to 14 how to draw this line. 15 So we need some test points. We've got to get 16 some range. And the San Joaquin River Agreement appendix 17 says if you're going to start out, give us some more 18 information at the low end and the high end first, so we 19 can get a better idea of how to make these decisions on 20 whether or not there is a correlation between flow, salmon 21 smolt survival, exports and salmon survival. We need more 22 points. 23 Now, when I looked at this target flow existing 24 flow thing it occurred to me: Why in the world would we go 25 to a higher target flow? Why don't we pick a flow in CAPITOL REPORTERS (916) 923-5447 2089 1 between the low end and the high end of the existing flow 2 regime and say, we're going to set it at that level? Let's 3 make it for the 3200 to 4449, let's make it 4,000. Why 4 make it 4,450 and dump that extra water down the river? Do 5 we have to do it? I'd say, no. Is there evidence to 6 support the reasonableness of doing it? I'd say, no. 7 Likewise, this double-step thing. Why would we 8 have these people in the tributaries dump this water to a 9 higher standard when all we're trying to do is get points 10 in the flows, you know, to fit this chart together to try 11 to get better information? Let's flow with the existing 12 water that's available. Let's vary our export level. And 13 let's get the information without expending the extra 14 water. 15 Now, am I suggesting that the tributary group not 16 get paid because they're not providing this water? No. 17 That water should probably be used to meet the salinity 18 requirement. It's good quality water. It's our best water 19 that we could use to help meet summer salinity 20 requirements. We can release it in the summer, the 21 exporters can export it. It adds directly to yield. 22 We've argued that even in the spring flow, you 23 know, we were very unhappy about you people setting a 24 hundred percent of the San Joaquin River flow. You know, 25 in our view they were taking water out of New Melones and CAPITOL REPORTERS (916) 923-5447 2090 1 then they were being allowed to pump it. Well, our 2 particular situation was saved somewhat, not by you, but by 3 the Delta smelt opinion that limited them. But if this 4 water that came from the tributaries came down in the 5 center it would improve San Joaquin River quality, which 6 means export water quality. And it would be available for 7 pumping at a time that the export contractors could better 8 utilize. It reduces that conflict that we have in the 9 reduction of export pumping during the spring. 10 Now, to sum it up, I would ask, again, and I'm 11 going to repeat it to emphasize it, that you make it clear 12 that you're not going to give any further consideration to 13 the San Joaquin River Agreement until a specific plan for 14 compliance with all the San Joaquin River objectives is set 15 forth and the subject of further hearing. And the Bureau 16 and the State are saying, they're backstopping this thing. 17 They're going to meet it. Let's see it. 18 I would suggest in that hearing that there might 19 be a better way of dealing with this water. And we could 20 better utilize it in a reallocation. Don't kill the 21 agreement, we want to modify the agreement. We want to 22 have the plan in front of us first. Secondly, if you end 23 up where you think these fishery flows, or whatever 24 configuration there is, rather than struggling and trying 25 to tell us and beat us in court later that it's equivalent CAPITOL REPORTERS (916) 923-5447 2091 1 to the 1995 Water Quality Control Plan, let's go back and 2 revisit the plan. Let's open those segments that need to 3 be changed, or that we want to consider changes to full 4 hearing to what the justification was for those standards 5 and make the changes. That's what I would ask that you do. 6 Thank you very much. 7 C.O. CAFFREY: Thank you, Mr. Nomellini. 8 Mr. Herrick. Good afternoon, again, sir. Welcome. 9 MR. HERRICK: Thank you. Mr. Chairman, Board 10 Members, John Herrick again for the South Delta Water 11 Agency. I'd like to lead off by wholeheartedly concurring 12 with Central Delta's closing argument. The San Joaquin 13 Agreement as one of the alternatives to the 1995 Water 14 Quality Control Plan has been given special consideration. 15 That's not wrong. The Board is making a good effort to go 16 along with their requests that they not be forced to fight 17 amongst each other as they present what they think is a 18 viable option. 19 We heard in the discussions that led to this 20 bifurcation of Phase II that it's perfectly appropriate for 21 various parties to settle out of a proceeding. And the 22 analogy, if not a stronger comparison was given, in court 23 that happens all the time. The problem with that 24 comparison is that in court when that happens you have to 25 settle with the plaintiff. CAPITOL REPORTERS (916) 923-5447 2092 1 A couple of defendants can't settle amongst 2 themselves, because it's the plaintiff who's supposedly 3 been injured. We don't have any plaintiff in these 4 proceedings, but the plaintiff is the person who is 5 allegedly being injured. At the very least, the water 6 quality standard which is described as the agricultural 7 beneficial use objective for South Delta, is meant to 8 protect South Delta ag, I mean by definition. So we don't 9 believe it's proper for there to be a settling out unless 10 the people who are going to be harmed by any action are 11 part of that settling out. 12 Last Thursday the Board decided that -- or stated, 13 excuse me, that it was not going to make a ruling on 14 equivalency. And again as Central Delta said, that's 15 probably correct, maybe that's not possible at this point 16 to make such a ruling. But deciding whether or not the 17 SJRA has merit doesn't help us in our comparison. Whether 18 it has merit or not is a conclusion. And the question is 19 what goes into that consideration? 20 Well, the Board itself in its order on their 21 motion stated that the SWRCB will consider all evidence and 22 arguments presented including the questions submitted by 23 many of the parties as to on whether implementing the San 24 Joaquin River Agreement will provide environmental benefits 25 in the lower San Joaquin River and the southern Delta at a CAPITOL REPORTERS (916) 923-5447 2093 1 level of protection equivalent to the level of protection 2 in the 1995 Bay-Delta Water Quality Control Plan. 3 Now, the question is: What should be the standard 4 for the Board to decide to go on that it has merit or not? 5 I think that is the standard that you've given. It doesn't 6 say that you will make a ruling on that, but it says that 7 that's the information that you're going to consider. The 8 VAMP -- excuse me, the San Joaquin River parties themselves 9 set forth what they wanted you to decide. 10 And, again, you're not just making a ruling on 11 equivalency, but they asked you to decide whether the flows 12 will provide environmental benefits to the lower San 13 Joaquin River and Delta at a level of protection equivalent 14 to the San Joaquin River portion of the 1995 Water Quality 15 Control Plan. That's slightly different. 16 They've asked you to decide whether or not it 17 provides equivalency with regard to the San Joaquin River 18 portion of the plan. Whereas, your order talks about 19 equivalent protection to the level of the plan. It doesn't 20 limit it to the San Joaquin River part. But it doesn't 21 matter which of those you look at, the question is: What 22 is equivalency? Well, equivalency according to the 23 biologists, the experts given, was equivalency in how 24 salmon smolts survive. But they gave no testimony 25 examining the other beneficial uses or criteria either CAPITOL REPORTERS (916) 923-5447 2094 1 contained in the plan, or contained in the San Joaquin 2 River portion, which is what the parties wanted you to look 3 at. 4 Again, the San Joaquin River Agreement defines, as 5 we've already been told by other counsel, it defines what 6 the San Joaquin River portion is. And I won't quote that 7 part, but under 3.4 of their agreement number three 8 specifically designates the Vernalis water quality 9 standard. So the question, then, is: Is there 10 equivalency? 11 None of the experts testified as to equivalency 12 with regard to meeting the objective for water quality at 13 Vernalis. None of them. What they did was they compared 14 the current situation with their situation and concluded 15 that salmon smolts received an equivalent amount of 16 protection. Glaringly absent is an analysis of water 17 quality equivalency. Now, we did see that they made a 18 comparison with the current standard and made conclusions 19 as to the -- which would enable one to compare the water 20 quality standard under the current as under the plan -- 21 excuse me, current and under the agreement, but that's not 22 the same as the plan. 23 Now, I'll get to that in a minute. But I do want 24 to comment that the biologists who were a panel up here and 25 gave their opinions, represent the same organizations that CAPITOL REPORTERS (916) 923-5447 2095 1 three years ago told you that they need flow, flow, flow. 2 They wanted to maximize the amount of flow coming down the 3 river. And three years later they tell you, two men and a 4 woman, that there was no correlation between flow and smolt 5 survival. Now, there's a caveat there which I'll get to. 6 Now, that's very interesting and very scary that 7 the people who demanded as much flow as they could three 8 years ago, tell you now that it's not important. That's 9 one of the reasons we joined wholeheartedly in Central 10 Delta's presentation with regard to a reevaluation of the 11 '95 Water Quality Control Plan. If we don't need high 12 flows, then, we're contemplating a tremendous waste of 13 water that is needed by various people: Upstream users, 14 upstream contractors, water quality, fish; that's a 15 tremendous waste of your water if it's not necessary. 16 Now, there was testimony by one of the experts 17 that there was a correlation between flow in the San 18 Joaquin River, not Vernalis, the San Joaquin River when the 19 barrier was in. But that doesn't really help the 20 situation, because they're not trying to get increased flow 21 in the San Joaquin River. We're trying to meet the 22 Vernalis standard which is part of the 1995 Water Quality 23 Control Plan. But if that's the case, then that cuts 24 against their argument. If more water is beneficial, then, 25 the higher flows under the plan must be more beneficial. CAPITOL REPORTERS (916) 923-5447 2096 1 And, again, I'll get to that later. There was other 2 discussions. 3 I would like to point out that the agencies that 4 told you these flows are equivalent, besides not examining 5 the water quality issues are not responsible for monitoring 6 the water quality issues. Department of Fish and Game 7 never says to anybody, hey, the Bureau did not meet the 8 Vernalis standard. That's not one of their obligations. 9 They don't write the Board letters and say, hey, Old River 10 was empty last week. What's going on? For some reason -- 11 well, that's not part of their obligation. 12 On cross-examination with the hydrologists we went 13 through a year-by-year comparison and I believe we chose 14 the dry year criteria. And we compared not the current, 15 which is what he modeled, we compared the plan. And I 16 believe there were 11 of those years, I think 11 dry years 17 in the 73 year history -- excuse me, 71-year history, and 18 four or five of those had more flows under the San Joaquin 19 River Agreement and the rest had more flows under the '95 20 Water Quality Control Plan. Again, he did not compare the 21 flows under the plan. He compared the current situation 22 not meeting the flows with the proposed San Joaquin River 23 Agreement. 24 Now, in each instance where the San Joaquin River 25 Agreement provided more flows, that was solely due to the CAPITOL REPORTERS (916) 923-5447 2097 1 fact that there was a double step in that year. Now, the 2 agreement, the San Joaquin River Agreement does provide for 3 double step under certain circumstances. That's not fuzzy 4 terms; if this happens, then, the double step happens. 5 However, that only happens if you happen to have, and this 6 isn't the terms, a couple wet years in a row. You have a 7 number greater than seven -- seven or greater under their 8 classifications. 9 So the years in which they provide more water are 10 contingent upon nature. I think that's a very important 11 distinction. And on other cross-examination in a critical 12 year type the San Joaquin River Agreement in just the 13 pulse-flow time period provided approximately, and the 14 hydrologists estimated, approximately 110,000 acre-feet 15 less in just that pulse-flow period. And the reason for 16 that was the biologists modeled the VAMP agreement, or 17 looked at the VAMP agreement, which was 3200 csf flow. 18 That's the minimum. 19 The San Joaquin River Agreement minimum is 20 2,000 csf unless there's a relaxation of the standard. And 21 the instance we examined from the historical data was an 22 instance in when the flow was low, and there had been prior 23 years with low flow, which kicked in the relaxation of the 24 standard. And so instead of providing 3200 csf at Vernalis 25 for fisheries, which is what the biologists used to CAPITOL REPORTERS (916) 923-5447 2098 1 determine equivalency, the actual flow under the agreement 2 would have been somewhere around 1200 csf. I forget the 3 number, significantly less. When you multiply acre-feet 4 times day times -- or calculate acre-feet over the 30-day 5 period -- 31-day, it was 110,000 acre-feet. That was the 6 hydrologist's calculation. That wasn't ours. 7 That's a tremendous difference. And to somehow 8 say that's an equivalent protection doesn't make any sense 9 especially in light of the biologists's testimony when they 10 generally kind of agreed that, yes, higher flow in the San 11 Joaquin River helps smolt survivability. You'll recall I 12 believe it was Dr. Hanson said, I wouldn't trade a thousand 13 at the high end of the flows for a thousand at the low end 14 of the flows. The low ends were more important. And it 15 was the low end of the flow where this would occur. 16 There's 110,000 acre-feet difference in just the pulse 17 period. 18 On cross-examination the biologists actually went 19 through a very rough calculation wherein they calculated 20 how many smolts -- how many additional smolts would survive 21 for certain incremental increases in flow in the San 22 Joaquin River. So they contradicted their own testimony by 23 saying, gee, if there is more flow under our chart which we 24 calculated the percent of increase of survival, yeah, if 25 you added that much flow you get more fish. Now, does that CAPITOL REPORTERS (916) 923-5447 2099 1 equate over the long-term of the 12-year history -- or 2 12-year projected time period of this? I don't know, but 3 it certainly does not support what they said. Flows don't 4 really make a big difference. We want the barrier. 5 What's happened is just what the South Delta Water 6 Agency complained of back in the 1995 Water Quality Control 7 Plan hearings and the WR 95-6 hearings. And that is it is 8 laudable to address the fishery problems, but where are you 9 going to get the flows? And we said -- or the agency said 10 numerous times, you can't simply increase fish flow water. 11 You have to say where it's coming from and figure who's 12 getting affected by that. 13 We were assured at that time that this is -- this 14 is just setting out how the flows -- what the flows will 15 be, you will be entitled to protection. You'll receive 16 protection when we decide who should supply that. But now 17 we're here contemplating an agreement which 18 institutionalizes harm to the water quality objective. The 19 Bureau's modeling show that 40 percent of the year types 20 they won't meet the water quality objective. That's not a 21 comparison of equivalency. That's an acceptance of 22 violation. 23 The testimony of their hydrologists was that based 24 on a few factors they could -- and that's what his chart 25 said, it could meet the water quality standard in times CAPITOL REPORTERS (916) 923-5447 2100 1 when it would not be met. But that's not a guarantee. 2 That's still a "We might be able to do that," as long as 3 you're accepting this 40-percent violation. 4 Well, we submit that the implementation of 1995 5 Water Quality Control Plan is a compliance with the 6 Vernalis quality standards, not 40-percent violation. 7 We're arguing over which alternative should provide the 8 smallest largest harm to the South Delta. We know that we 9 can get flows from other places. And I'm not saying who it 10 should be taken away from. 11 I'm not trying to -- we're certainly not trying to 12 interfere with irrigation districts upstream of us. But 13 the alternatives in the 1995 Water Quality Control Plan run 14 the gamut of where to get the water. I mean there's lots 15 of different possibilities as the experts testified. But 16 to assume, as the modeling did from the San Joaquin River 17 Agreement presentation, to assume that there will be a 18 violation is to ignore the Water Quality Control Plan. 19 It's interesting to hear the argument that the 20 downstream riparians aren't entitled to any flow, because 21 the next part of that argument is, therefore, the 22 agricultural beneficial objective of the Water Quality 23 Control Plan shouldn't be applied. Now, regardless of the 24 legal arguments which will be made later as to who may be 25 entitled to flow coming down the river, their argument is CAPITOL REPORTERS (916) 923-5447 2101 1 that the objective for water quality can be ignored. 2 That's certainly not the way to handle this. 3 There's been much discussion about the honesty -- 4 that's not the right word, excuse me. The parties will 5 have incentives to not go forward with an universally 6 acceptable calculation of existing flows. We're not trying 7 to malign them or anything, but I think what's important in 8 the consideration now is what they've already decided. And 9 they've already decided in their agreement that if there 10 are adverse affects from them providing the flows, they 11 will not be required to mitigate them. 12 Now, that's a very interesting proposition given 13 that both these proceedings and their separate agreement is 14 going to go through CEQA and then NEPA evaluation. To 15 start with a project condition that is if there are adverse 16 impacts, found somebody else will take care of them is an 17 issue that has never been litigated but would be. You 18 can't -- what they're doing is they're assuming they will 19 not find adverse impacts. And if they do, they won't have 20 to mitigate. That's just mind boggling, but I did want to 21 bring that up. 22 I'd like to reemphasize that the biology experts 23 who testified, and this has been stated before. I don't 24 mean to be repetitive, they examined the VAMP flows. It's 25 a very important distinction that VAMP is not the San CAPITOL REPORTERS (916) 923-5447 2102 1 Joaquin River Agreement. And that gets back to the 2,000 2 minimum flow under the San Joaquin River Agreement and it 3 gets back to the relaxation of the standard. The VAMP 4 program has 3200 csf flows. 5 Of course, they say if that doesn't happen the 6 Bureau is backstopping it, guaranteeing. Again, without 7 being repetitive I'd like to join in what the Central Delta 8 said, the examination of the witnesses showed very, very 9 clearly that there isn't any mechanism for protecting for 10 backstopping those flows. The Bureau said on 11 cross-examination they have not gone through an analysis. 12 They have not developed a plan which will show how they may 13 do that. Am I running out of time? 14 C.O. STUBCHAER: Three minutes. 15 C.O. CAFFREY: About three and a half minutes. 16 MR. HERRICK: Well, I'll conclude there. I would 17 just like to say that we wanted to be part of this process. 18 And three years ago the Board admonished all parties to try 19 to include everybody to get -- to get consensus. Consensus 20 is not a bad idea, but when consensus does not include 21 everybody, it's not a consensus. And although there was 22 communication over the years and there were some efforts 23 made, you will note that the South Delta Water Agency which 24 bears the entire brunt of the water quality objectives not 25 being met, is not part of this agreement. CAPITOL REPORTERS (916) 923-5447 2103 1 We just submit that it's very clear that the 2 evidence put forward may suggest equivalency for fishery 3 protection, but it glaringly omits any analysis of 4 equivalency for the other objectives of the plan, which 5 lists a -- lists other beneficial uses. And so we don't 6 believe it is appropriate to find there is merit in this. 7 The equivalency test is the criteria by which the San 8 Joaquin River Group Authority wanted you to evaluate them 9 and I think that's appropriate here. 10 Thank you very much. 11 C.O. CAFFREY: Thank you, Mr. Herrick. Mr. Herrick 12 asked how much time he had left and I just wanted to remind 13 everybody in case they didn't know by now, maybe we should 14 have mentioned it on day one of these proceedings, but the 15 light on the witness table, the light goes from green to 16 yellow when you have two minutes left in your time. When 17 it goes to red, you sit down. So that should be a reminder 18 if you could take a glance at that light every now and 19 then, that gives you an idea how much time you have left. 20 Mr. Maddow. 21 MR. MADDOW: Thank you, Mr. Chairman. Robert Maddow 22 for the Contra Costa Water District. I apologize for being 23 absent this morning and not having had my name on the list, 24 and I appreciate your accommodating my schedule and 25 allowing me to make a brief closing statement. CAPITOL REPORTERS (916) 923-5447 2104 1 Contra Costa has been saying from the beginning of 2 these proceedings and in a number of ways that it supports 3 the use of negotiated agreements to narrow the issues that 4 need to be decided in this hearing. And we've been saying, 5 we think consistently that all of the agreements, we're 6 focusing on this one because it's the first, that all of 7 these agreements need to be clearly understood for what 8 they are and what they aren't. 9 We've consistently tried to say that impacts of 10 adoption or implementation or consideration of these 11 agreements must be fully understood. And we hope that 12 these agreements will not be used to transfer impacts from 13 one basin to others, or from one set party to others, or 14 cause other parties which are not proponents of the 15 particular agreement to have to release additional water to 16 meet Water Quality Control Plan objectives or bear similar 17 kinds of transferred responsibilities. 18 In this particular case, Contra Costa was pleased 19 to see the ruling that you issued on July 16th in regard to 20 the motion that was made by the San Joaquin River Group 21 Authority, because, in candor, although we believe that the 22 VAMP is a laudable experiment and we believe that the 23 efforts of the San Joaquin River Group Authority are 24 laudable and praiseworthy, because they were attempting to 25 accomplish something that's never been accomplished before. CAPITOL REPORTERS (916) 923-5447 2105 1 We're just not sure that the San Joaquin River 2 Group Agreement itself is ready for the kind of approval, 3 for example, that the Authority was asking early on in, 4 when they were talking in terms of, perhaps, there being an 5 interim order at the end of this phase of the proceeding 6 and things similar to that. We just don't think it's ready 7 for that yet. We think your phasing decisions indicate 8 that there is a good deal more information that would need 9 to be before the Board before you could go beyond the 10 determination of whether or not the agreement as it has 11 been presented merits further consideration as a flow 12 alternative. 13 That decision is an important decision. And it's 14 a hard decision, but we don't think you can go any further 15 than that at this stage. In deciding whether this 16 agreement merits further consideration as a flow 17 alternative, we think it's important to note that the 18 agreement itself indicates what we think is a fairly 19 limited contribution to be made by the San Joaquin River 20 Group Authority members to the Vernalis standard. That's 21 an important contribution. 22 We don't mean to in some way be critical of what 23 the members of the group have done in reaching the 24 negotiated agreement that we have reached, but their 25 contribution is a limited one. We think the testimony has CAPITOL REPORTERS (916) 923-5447 2106 1 shown that quite clearly. In particular, we note that 2 there are a number of objectives other than the Vernalis 3 standard, in particular, where others are going to have to 4 meet those -- meet the objectives, or be responsible for 5 the steps necessary to meet the objectives, particularly 6 the backstoppers. 7 We're concerned about just exactly what that is 8 going to result in. We don't think you can get to the role 9 of the backstoppers and what the backstoppers' contribution 10 to the San Joaquin River basin responsibilities will be. 11 We're concerned that their contributions in regard to the 12 San Joaquin basin may have an impact on the role of the 13 Bureau and the role of the DWR with regard to other 14 portions of what will be before you in future phases of 15 this hearing. 16 And so we think it's important that in deciding 17 that this alternative, the San Joaquin River Group -- 18 excuse me, the San Joaquin River Agreement merits further 19 consideration as a flow alternative, we think it's 20 important that you understand just exactly what it is that 21 the role of the federal and the state governments would be 22 under that agreement should that alternative be considered 23 and eventually adopted in some form. 24 One portion of the San Joaquin River Agreement has 25 been referred to during arguments of some previous counsel CAPITOL REPORTERS (916) 923-5447 2107 1 today, concerns about whether the San Joaquin River Group 2 Authority members will be fully relieved of any role in 3 meeting all Water Quality Control Plan objectives if, in 4 fact, this agreement ultimately becomes a flow alternative 5 and should be -- should be adopted. 6 And several of those objectives are going to be at 7 issue in later phases. And I don't mean to suggest that 8 you need to fully consider those issues at this stage in 9 making your decision in Phase II, but we think that the 10 Board needs to be cognizant of the fact that there are flow 11 objectives, there are Water Quality Control Plan objectives 12 other than the Vernalis flow objectives that are going to 13 have to be considered at some point during this proceeding. 14 And we think your phasing opens up consideration of several 15 of those matters at later stages of this proceeding. 16 For example, in the San Joaquin River Agreement 17 itself there's a statement in Article 12.1 on page 15 that 18 the agreement does relieve these parties of obligations to 19 mitigate for waste discharges. In the State Board's Draft 20 EIR concerning salinity control alternatives I believe that 21 on page -- in Chapter 2 of the State Board's EIR it's quite 22 clear that these parties would still have some potential 23 responsibility for participation in salinity control 24 alternatives even if this agreement should be adopted as an 25 alternative to be considered as the Board goes forward CAPITOL REPORTERS (916) 923-5447 2108 1 throughout the balance of these proceedings. 2 We think it's important to realize that the 3 limitations of the San Joaquin River Agreement are exactly 4 as we have heard them during this Phase II so far. There 5 is a limited contribution of these parties to meeting the 6 Vernalis flow standards and the hook that they get off if 7 this agreement should ultimately be approved, is a limited 8 hook. Again, I say that without any intent to in any way 9 denigrate the role of the participants in the San Joaquin 10 River Group Authority, or any of those who have 11 participated in the development of that agreement. 12 But we think it's important that if the Board 13 should decide to keep this on the table as a flow 14 alternative, that we understand exactly what it is and we 15 understand exactly what it isn't. With that, we look 16 forward to the future phases of this proceeding and to 17 discussion of some of the other Delta objectives that have 18 not yet been fully placed before you in this proceeding. 19 Thank you very much. 20 C.O. CAFFREY: Thank you, Mr. Maddow. Don't go away 21 just yet, Mr. Maddow, because I think there's a part of 22 this that you're unaware of. 23 MR. MADDOW: And that is the rebuttal? 24 C.O. CAFFREY: Well, actually, we call it a response. 25 MR. MADDOW: Excuse me. CAPITOL REPORTERS (916) 923-5447 2109 1 C.O. CAFFREY: I had indicated this morning that when 2 we got to that phase we would reverse the order in fairness 3 to everybody. So that means since you just went last you 4 shall now go first. 5 MR. MADDOW: I appreciate that, Mr. Chairman. 6 C.O. CAFFREY: If you wish to make a response. 7 MR. MADDOW: And I have no response at this time. 8 C.O. CAFFREY: Thank you, Mr. Maddow. I hope I 9 didn't sound too biblical with my last statement, first and 10 last, I didn't mean to. 11 Mr. Herrick, do you wish to make a five-minute 12 response? 13 MR. HERRICK: Yes, Mr. Chairman. I'll be extremely 14 brief. I will try not to address comments in my initial 15 closing, I will do that right now. 16 Counsel for San Joaquin River Authority said that 17 the agreement provides more flows, reduces exports, and 18 provides for the barrier. I think the testimony shows that 19 it does not provide more flows than the plan. The exports 20 are a set amount less than the 100 percent of the plan, but 21 we also heard testimony that that 100 percent is not what 22 is in operation now. And, of course, we heard testimony 23 that the barrier will be there with or without this 24 agreement. 25 We had heard counsel say that this was superior to CAPITOL REPORTERS (916) 923-5447 2110 1 other alternatives. It cannot be superior to an 2 alternative that institutes all of the objectives. They 3 can argue that it may be equivalent for fishery purposes, 4 but they cannot and have not argued for other purposes. So 5 I don't think you can say that. 6 The Bureau said that they are stepping up to the 7 plate, taking responsibility. They want to avoid 8 conflicts. If they're stepping up to the plate they should 9 show us how they will backstop this, how they will meet the 10 obligations they are assuming, and not qualify that by 11 saying, "What we can reasonably do." That's what they 12 said, "We will backstop it as much as we reasonably can." 13 That's where we are now. That's the current 14 modeling situation that was done and that shows 40-percent 15 violation of water quality. We heard testimony again -- 16 excuse me, we heard closing argument again that there's 17 more water being put in the pot for this. The Staff's DEIR 18 on page V Roman Numeral 53 under the two tables that were 19 examined shows that under critical years, or under the 20 73-year average alternative adds nothing flow wise. 21 I would like to restate that -- reaffirm that the 22 equivalent test was very limited. We were told by counsel 23 that Dr. Hanson said that this provides equivalent 24 biological protection. That's a judgment on his part. 25 That has nothing to do with the other protections of the CAPITOL REPORTERS (916) 923-5447 2111 1 plan. And that's all I have. Thank you very much. 2 C.O. CAFFREY: All right. Thank you, Mr. Herrick. 3 Mr. Nomellini. 4 MR. NOMELLINI: Dante John Nomellini for the South 5 Delta Parties. I'm not sure I understand the logic of the 6 Chair in this order, but let me partake and add to my 7 previous argument. There is one element that I thought 8 that was important that should be mentioned that, perhaps, 9 is a thought that it occurred to others. 10 When I heard the testimony about the possible 11 conflict in having a head of Old River barrier withdrawing 12 more water from the Central Delta and thereby drawing in 13 more Delta smelt or winter-run salmon, it occurred to me 14 that perhaps we should be talking about a screen at the 15 head of Old River, or a partial screen/partial barrier type 16 of configuration that will allow the water to flow towards 17 the pumps, but not the fish. 18 I don't know to what extent that has been 19 analyzed, but it seems to me that when we start talking 20 about a San Joaquin River Agreement 12-year period, you 21 know, those 12 years kind of bothered me because you've got 22 triennial review of the Water Quality Control Plan, you 23 know, things change quite a bit. And you know we've got 24 this cloud of water rights implications going forward, 25 which I think Mr. Brandt can belly up to the bar along with CAPITOL REPORTERS (916) 923-5447 2112 1 the Department and meet their obligations in the Delta and 2 take all this pressure off of all the upstream tributaries 3 and we can solve that problem, or else perhaps we can even 4 defer. 5 I don't know what the magic is other than the fact 6 there was a commitment to this Board to move forward to the 7 water rights phase. But I think we can revisit some of 8 this in light of new information that we have. And maybe 9 there's a role for a little different look at the kind of 10 barrier that we're talking about at the head of Old River 11 that would be helpful. 12 And lastly I'd just like to reiterate, and I think 13 it's obvious to you people, that the comparison is not to 14 continued violation of the Vernalis salinity standard. 15 We're trying to figure out a way to implement the plan. 16 You know, we're really talking about how can we implement 17 the plan, in other words, meet these objectives? So our 18 goal should be not to do what we're doing now, or better 19 than what we're doing today, unless you want to change the 20 plan, the task is to meet the plan. 21 So that is one of the things that's kind of a 22 gross oversight in all of this debate that we've been going 23 back and forth in the comparison in the models and those 24 things are comparing current conditions assuming there 25 isn't going to be any improvement in terms of violations CAPITOL REPORTERS (916) 923-5447 2113 1 versus what they would do just continuing a certain level 2 of violation. I don't think that's the proper test unless 3 you change the plan. So if you want to go back and change 4 the plan so that whatever is proposed meets it, then, fine. 5 Then we have a correlation. So I think that's really 6 important procedurally that we focus on meeting the plan, 7 or else change it. Thanks. 8 C.O. CAFFREY: Thank you, Mr. Nomellini. 9 Ms. Koehler? Did Ms. Koehler leave? 10 MR. JACKSON: Yes. 11 C.O. CAFFREY: Mr. Porgans? I don't see Mr. Porgans 12 either. Mr. Sandino. 13 MR. SANDINO: I have nothing further. 14 C.O. CAFFREY: Thank you, sir. Mr. Suyeyasu? 15 Welcome back. 16 MR. SUYEYASU: Thank you. Mr. Sawyers's closing 17 statement he talked about how the VAMP experiment will 18 provide hard science for the Board to use in its future 19 management decisions regarding the Delta. Although the 20 value of hard science for the Board's use is obviously 21 quite important, it is surprising that given that objective 22 of the agreement the parties to the agreement haven't 23 provided any hard commitment to provide the flows necessary 24 to do the hard science. Science is dependent upon a 25 controlled experiment. And, yet, their plan only provides CAPITOL REPORTERS (916) 923-5447 2114 1 for these hard flows in certain years, but they have given 2 themselves way too many outs to do the type of hard science 3 that is really needed. 4 I would just suggest to the Board that in 5 considering this agreement, and I think it does not deserve 6 any further consideration, you might direct the parties to 7 the agreement to come back with an agreement that provides 8 the hard science, but also comes with a hard commitment to 9 meet the flows called for in the Water Quality Control 10 Plan. I haven't heard any testimony why both those things 11 cannot be done concurrently. Thank you. 12 C.O. CAFFREY: Thank you, Mr. Suyeyasu. 13 Mr. Birmingham. 14 MR. BIRMINGHAM: Thank you, Mr. Chairman, Members of 15 the Board. 16 C.O. CAFFREY: Welcome back. 17 MR. BIRMINGHAM: Mr. Maddow observed in his closing 18 remarks that it's important in analyzing the agreement to 19 keep in mind what the agreement is and what it is not. And 20 I think Mr. Maddow is absolutely correct in that 21 assessment. I think that in addressing the issue that is 22 before the Board it's also very important to keep in mind 23 what that issue is. And, again, it's whether or not the 24 San Joaquin River Agreement is deserving of any further 25 attention, any further consideration as a flow alternative. CAPITOL REPORTERS (916) 923-5447 2115 1 And for the reasons that counsel for other parties 2 have stated it is our view that the agreement is worthy of 3 further consideration as a feasible alternative. But let's 4 focus, if we can for a few moments, on what the agreement 5 is. There was a lot of discussion during the closing 6 arguments of counsel about the equivalency question. And 7 those parties who are opposed to the agreement have said 8 that the equivalency question only addressed protection for 9 the outmigrating smolts. 10 Well, in a sense, that's correct. And the reason 11 for that is because the agreement, the San Joaquin River 12 Agreement deals with providing flows during the pulse-flow 13 period. And in analyzing the question of equivalency it's, 14 then, necessary to go back and analyze the Water Quality 15 Control Plan to determine the basis of the pulse flow. 16 And when the State Board goes back and looks at 17 the 1995 Water Quality Control Plan with respect to the 18 river flow requirements on the San Joaquin River for the 19 period of April 15th through May 15th, there are minimum 20 flows that are provided. And then there is a reference to 21 Footnote 18, and reference to Footnote 18 which is on page 22 21 of the 1995 Water Quality Control Plan states, "That 23 this time period may be varied based on real-time 24 monitoring once -- one pulse or two separate pulses of 25 combined duration equal to a single pulse should be CAPITOL REPORTERS (916) 923-5447 2116 1 scheduled to coincide with fish migration in the San 2 Joaquin River tributaries and Delta." The time period for 3 this 31-day flow requirement will be determined by the 4 operations group established under the framework agreement. 5 What the 1995 Water Quality Control Plan was 6 dealing with was providing a pulse flow for the benefit of 7 the outmigrating smolts. So when the biologists analyzed 8 the question of equivalency, of course, that's what they 9 looked at, because that's what both the agreement and the 10 plan deal with. The agreement is not and does not pretend 11 to be an agreement which will resolve all of the issues 12 concerning implementation of the 1995 Water Quality Control 13 Plan, even for the San Joaquin River portion of that 14 control plan. 15 What it deals with is the responsibility of the 16 parties to that agreement. And the arguments that the 17 Board has heard in opposition to the agreement, 18 particularly those arguments that say the Bureau can only 19 satisfy the water quality standards 40 percent of the time, 20 is based on an assumption that only the Bureau and the 21 Department of Water Resources will be responsible for 22 meeting those water quality standards. That is not the 23 case. 24 Mr. Sandino very carefully articulated what is 25 meant by "backstopping." The Bureau of Reclamation and the CAPITOL REPORTERS (916) 923-5447 2117 1 Department of Water Resources will assume the obligation of 2 these parties so that if the Board determines that their 3 obligation is greater than the obligation that's imposed 4 under the agreement, then, the Bureau and DWR will assume 5 those responsibilities. But the Bureau and DWR have not 6 agreed to assume the responsibility of all of the other 7 water users that are listed in the notice of hearing who 8 are not parties to the San Joaquin River Agreement. Those 9 other parties will also be making contributions to the San 10 Joaquin portion of the 1995 Water Quality Control Plan. 11 So that in and of itself does not disqualify this 12 agreement as a viable alternative. Now, there are other 13 provisions in the agreement about willing -- 14 C.O. CAFFREY: That's the five minutes, 15 Mr. Birmingham. 16 MR. BIRMINGHAM: May I have one additional minute? 17 C.O. CAFFREY: If I do that I have to give everybody 18 else six minutes. 19 MR. JACKSON: Chairman Caffrey? 20 C.O. CAFFREY: You want to hear it? 21 MR. JACKSON: Yes. 22 MEMBER FORSTER: They want to hear it. 23 C.O. CAFFREY: All right. I'll give you another 24 minute, sir. And anybody else who argues for six minutes 25 and says they need it can also have it. CAPITOL REPORTERS (916) 923-5447 2118 1 MR. BRANDT: I'll give him one of my minutes. 2 C.O. CAFFREY: I don't think we're allowed to do that 3 under our regs. That's a really nice gesture. Go ahead 4 and take another minute, Mr. Birmingham, everybody wants to 5 hear it. 6 MR. BIRMINGHAM: I'm not sure what I have to say is 7 worth it. 8 C.O. CAFFREY: Maybe they were anticipating a little 9 early. 10 MR. BIRMINGHAM: But the agreement also provides that 11 willing sellers will provide water to willing buyers, in 12 particular the Department of the Interior. So there will 13 be other potential benefits for implementing the Water 14 Quality Control Plan. But the agreement deals with the 15 period generally from April 15th to May 15th. And I would 16 like to address the funding question, again, because both 17 Ms. Koehler and Mr. Suyeyasu -- I can't pronounce his name, 18 I beg your pardon. 19 C.O. CAFFREY: Suyeyasu. 20 MR. BIRMINGHAM: The representative from EDF keeps 21 referring to these as "public funds." They are not public 22 funds in the classic sense. The funds that would be used 23 to acquire this water are funds that come from CVP water 24 users, funds that were collected to mitigate environmental 25 impacts. CAPITOL REPORTERS (916) 923-5447 2119 1 The Friant water users, who pay a significant 2 portion of those funds and the exporters within the San 3 Joaquin -- excuse me, the Delta-Mendota and San Luis Canal 4 service area have indicated a willingness to have those 5 funds used for this purpose. And as the representative of 6 EDF said in the cross-examination, the use of these funds 7 for that purpose is entirely consistent with the Central 8 Valley Project Improvement Act, which created the 9 restoration fund. There's absolutely nothing inappropriate 10 about using these funds for this purpose. Thank you. 11 C.O. CAFFREY: Thank you, Mr. Birmingham. I will 12 give the other speakers up to six and a half minutes if 13 they need it. Let me know if you think you need more than 14 five minutes. And if any of the other speakers who went 15 before need an additional minute and a half, I'll let you 16 stand at your seat and take a shot. 17 C.O. STUBCHAER: At the end. 18 C.O. CAFFREY: Mr. Stubchaer, he's an engineer, 19 perhaps, at the end. All right. Mr. Garner and then 20 Mr. Brandt and Mr. Campbell and Mr. Sawyers. 21 Mr. Garner. 22 MR. GARNER: Thank you, Mr. Chairman, Members of the 23 Board. I won't need any more than five minutes. Actually, 24 I just wanted to raise two points. First on the 25 manipulation of the target flows issue, which is something CAPITOL REPORTERS (916) 923-5447 2120 1 we heard a lot about in these proceedings, and a lot of 2 conjecture and innuendos. And we have not seen any hard 3 data as to how these flows can be manipulated and how much 4 water would be involved. 5 I hope that we come back for a Phase II-A that 6 parties who have raised that issue in the interim will 7 model that and be prepared to show us how those flows can 8 be manipulated and how much water will be involved in that 9 manipulation. Secondly, the other point I wanted to raise 10 is that I was hardened to hear Mr. Nomellini raise the 11 constitutional issue of reasonable issue. And without 12 getting into that issue any further at this time I would 13 just like to encourage the Board to keep that reasonable 14 use issue in mind throughout all the phases in this 15 hearing. Thank you. 16 C.O. CAFFREY: Thank you, Mr. Garner. 17 MEMBER FORSTER: I have a question. 18 C.O. CAFFREY: Mr. Garner, Ms. Forster has a 19 question. 20 MEMBER FORSTER: Would you just restate what you 21 would hope the parties would come back and tell how much 22 water -- 23 MR. GARNER: How much water would be involved with 24 the manipulation. They refer to the target flows could be 25 manipulated -- I'm sorry. The existing flows could be CAPITOL REPORTERS (916) 923-5447 2121 1 manipulated to reduce the target flow amounts but we have 2 not really heard how that can be done and how much water 3 would be involved if that were done. 4 MEMBER FORSTER: By the "parties" you mean the 5 members of the San Joaquin -- 6 MR. GARNER: I was referring to the parties who had 7 been opposing the San Joaquin Agreement. 8 MEMBER FORSTER: All right. 9 C.O. CAFFREY: All right. Thank you, sir. 10 Mr. Brandt. 11 MR. BRANDT: I will keep it short. I want to thank, 12 again, Mr. Herrick and Mr. Nomellini because it looks like 13 they have set up perfectly for us why we need to have some 14 more examination of this agreement. They've raised a 15 number of issues and I look forward to applying the 16 reasonable use standard and the reasonable standard to 17 comparing this to the other alternatives. They'd like to 18 talk about those, I look forward to doing that. And I 19 think they raised perfect reasons why this agreement needs 20 to go forward and merits further consideration. 21 C.O. CAFFREY: All right. Thank you, Mr. Brandt. 22 Mr. Campbell. 23 MR. CAMPBELL: No, thank you, Mr. Chairman. 24 C.O. CAFFREY: Thank you, sir. Mr. Sawyers. 25 MR. SAWYERS: And back to the point of beginning. CAPITOL REPORTERS (916) 923-5447 2122 1 Thank you, Mr. Chairman. After 12 closing arguments and a 2 number of responses I haven't been able to count, I'm at a 3 bit of a loss as to exactly which points I should be 4 covering. I guess I would simply urge the Board to look at 5 the evidence that's been presented and look at the San 6 Joaquin River Agreement as it's been entered into evidence. 7 There have been a great number of 8 characterizations about a number of pieces of evidence, 9 about a number of provisions of the San Joaquin River 10 Agreement, that's to be expected. The best thing the Board 11 can do is to look at the evidence for itself. I think 12 you'll see if you do that there is, in fact, equivalent 13 protection as has been testified by a number of experts. I 14 think you'll see, in fact, the water will be made available 15 under the San Joaquin River Agreement and that the 16 agreement can be made to work. 17 And I think you'll see that the San Joaquin River 18 Agreement and the VAMP itself are both fundamentally sound, 19 workable documents that lack any sort of significant flaws. 20 There's been a suggestion made that there's no hard 21 commitment to provide the water. I respectfully disagree 22 with that. If you look at the evidence that was presented 23 to you you will see that the only circumstances under which 24 it is even possible that the VAMP flows might not be 25 provided are under an extraordinary set of circumstances. CAPITOL REPORTERS (916) 923-5447 2123 1 And the likelihood of those occurring is extremely remote. 2 The issues that have been raised relative to 3 salinity and the evidence presented with respect to South 4 Delta water quality all suggest that we need to explore 5 that more in Phase V. And, indeed, the only time we can 6 really talk about that is after a full exploration of all 7 of the alternatives that are proposed for flow, hopefully 8 in Phase II-A. The only evidence you have before you right 9 now is that the San Joaquin River Agreement and the VAMP 10 certainly do not make water quality in the South Delta 11 worse. And, in fact, can improve it under a number of 12 circumstances. And, again, in a Phase II-A, if the Board 13 chooses to schedule on, we can present additional evidence 14 that would allow us to compare the San Joaquin River 15 Agreement and its flows to all of the other flow 16 alternatives. 17 I also need to address one specific point that was 18 made that goes, I guess, to the fragility of the agreement 19 that we've heard something about. One of the other 20 attorneys speaking to you in closing suggested that the 21 agreement can be terminated for any reason. Again, I ask 22 you to look at the agreement. That's simply not the case. 23 The termination provisions of the agreement are very 24 specific, do not make it a fragile agreement, and provide 25 only for specific grounds for termination. It simply CAPITOL REPORTERS (916) 923-5447 2124 1 cannot blow up, or blow to the four winds as has been 2 suggested for any reason. 3 Finally, there was a suggestion that if the Board 4 were to adopt the San Joaquin River Agreement it would 5 somehow be surrendering its jurisdiction. Again, I 6 respectfully disagree. In fact, the Board would be 7 retaining jurisdiction. The jurisdiction of the Board is, 8 in fact, being invoked by the San Joaquin River Agreement. 9 There's no surrender. And, in fact, the Executive Director 10 of the Board would be a party to mediating on a rapid basis 11 any emergency type of events that took place that required 12 mediation. 13 Finally, I would urge you to remember that this is 14 a package. It's not just about flows. It's not just about 15 the head of Old River barrier. And it's not just about 16 producing exports. It's about all of those things 17 collectively. You have to remember that the coalition 18 supporting this San Joaquin River Agreement is an 19 extraordinary one. And you have to remember that there is 20 broad base support for the agreement and for the VAMP and 21 for, at a bear minimum, going forward and exploring it 22 further. 23 So with that I would simply repeat the request 24 that I closed with before, and that is that the Board 25 schedule a Phase II-A so we can further explore all the CAPITOL REPORTERS (916) 923-5447 2125 1 issues that have been raised and give the Board and the 2 public an opportunity to understand what the San Joaquin 3 River Group already understands, and that is that the San 4 Joaquin River Agreement is the superior alternative for 5 implementing the San Joaquin basin portion of the 1995 6 Water Quality Control Plan. Thank you. 7 C.O. CAFFREY: Thank you, Mr. Sawyers. This is a 8 matter of absolute fairness, do Mr. Herrick, Nomellini, or 9 Suyeyasu wish another minute and a half? All right, 10 gentlemen, thank you. All responding in the negative. 11 Let me now say that that completes the evidentiary 12 portion of this proceeding for Phase II. We will begin 13 Phase III tomorrow morning in this room at 9:00. In case 14 anybody doesn't know what Phase III is, that's the Suisun 15 Marsh Preservation Agreement and potential alternate 16 alternatives, I think is how they describe it. 17 I'll read it exactly. "Phase III, the Suisun 18 Marsh Preservation Agreement and the other alternatives for 19 meeting the Suisun Marsh objectives." I will also state 20 that I'm sure that everybody would like to know as soon as 21 possible what the Board's intentions are with regard to a 22 Phase II-A. That, as we have described late last week, is 23 a determination to be made by the Cohearing Officers; 24 Mr. Stubchaer and I will take the record under advisement. 25 And we will determine with all dispatch what the Board will CAPITOL REPORTERS (916) 923-5447 2126 1 now do. 2 And I expect that to take no more than several 3 days. So we will announce our determination through the 4 normal communicative processes of our staff, or if we 5 happen to be at a period of time where we are all here 6 meeting together, we will announce it then and then follow 7 on shortly with the appropriate hearing announcements, et 8 cetera, et cetera. 9 So with that, then, I thank you all for 10 everybody's hard work and heartfelt provisions in this 11 proceeding in Phase II. And we now close Phase II and 12 start tomorrow at 9:00 a.m. with Phase III. Thank you all 13 very much. 14 (The proceedings concluded at 2:36 p.m.) 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 2127 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 1936 through 2128 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 15th day of 14 August, 1998. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 2128